Volume 14 — Pennsylvania State Reports

Judgment entered September 18,1847, on a single bill and warrant of attorney, dated December 5, 1846, for $515. “ Eor the use of Samuel Mercer.” December 16, 1847; on motion of Mr. Darlington, and affidavit filed, rule to show cause why judgment shall not be opened. April 19, 1848; argued, and rule absolute.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action by Graham, as endorsee of Paynter v. Bisbing, the drawer of a promissory note, as follows :</p> <p>March 11, 1843.</p> <p>Four months after date, I promise to pay to David Paynter or to' his order, three hundred and six dollars, for value received, without defalcation. Samuel Bisbing.</p> <p>It was endorsed by Paynter, the payee, to the plaintiff, in these words:</p> <p>For value received, I assign to William Graham, or order, all my right, title and interest in the within note, without recourse.</p> <p>David Paynter.</p> <p>Special pleas were filed.</p> <p>The history of this suit was stated to be as follows:</p> <p>The plaintiff in error, and Paynter, the endorser of the note on which suit is said to be brought, owned a vessel jointly together. A dispute about the joossession was brought in the United States District Court. A settlement in writing finally took place, dated March 11th, 1843. The defendant gave a note for the balance ascertained, with the express agreement in writing, that if any other claims than those enumerated in said agreement, should be brought against the schooner mentioned in their agreement, they were to be paid by the plaintiff in error, and deducted from the amount of said note; and the plaintiff in error averred that such subsequent payment, to the amount of $176.69 were presented, and $146 of which were paid by him, and he was responsible for the balance of the said $176, which should have been allowed him as a set-off on the trial below. And he further averred that the said note was fraudulently endorsed over to Graham, defendant in error, the son-in-law of Paynter, without consideration, to prevent said set-off: and the plaintiff in error also averred that Graham knew all the above facts at the time the note was endorsed over to him, and that he took it under suspicious circumstances, it being endorsed by Paynter without recourse, and that should have led him to inquiry.</p> <p>Sarah Paynter, the wife of D. Paynter, was examined upon a rule, and her deposition read at the trial [although objected to], in which she stated that she was the owner of the one-half part of said schooner, and that she sold her note to Graham.</p> <p>The note was not produced at the time of her examination before the magistrate under the rule to take her deposition, and although the objection was then taken by defendant, no proof was offered at that time of its being lost. Sarah Paynter did not pretend she had ever endorsed the note, although she alleged it was her’s.</p> <p>On the trial, the testimony of counsel was given, that the note was mislaid since suit brought; but no indemnity was offered against the note.</p> <p>A nonsuit was moved for, on the ground that no recovery can be had upon a lost note without at least proffer of indemnity. The judge overruled the motion. No consideration was proved to have passed between endorser and endorsee, except what was contained in Sarah Paynter’s deposition. Defendant’s counsel insisted upon his equities of set-off between maker and payee, which was overruled by judge. Verdict for plaintiff below for ¡Í389.38.</p> <p>Assignment of errors:</p> <p>1. That the judge charged that the plaintiff below might recover notwithstanding her note was mislaid.</p> <p>2. That the judge charged that the plaintiff below might recover, notwithstanding the note was mislaid, if the jury were satisfied that the note was in existence and lost since the trial had been brought, even without indemnity offered.</p> <p>3. That the judge told the jury that the plaintiff below might recover upon a lost note, not produced upon the trial, and without any indemnity offered at any time.</p> <p>4. That the judge told the jury that the plaintiff below might recover upon a note lost or mislaid, if they were satisfied that the said note was in existence and lost since the suit was brought, without offering indemnity.</p> <p>5. Because the judge told the jury that the plaintiff has a right to recover notwithstanding any equities between Paynter and Bisbing — Graham being son-in-law of Paynter — the note having been sold by Mrs. Paynter and endorsed by Paynter without recourse — which two latter facts, the jury were told by the judge below, were neither of them facts which ought to have put the plaintiff on inquiry, and although the plaintiff in error had called upon defendant in error before trial to prove consideration.</p> <p>6. Because Sarah Paynter’s deposition was admitted to be read to the jury.</p> <p>7. Because no consideration was received for said note by Paynter, the endorser, nor proved to have been received by any one, except Sarah Paynter.</p> <p>8. Because the testimony of John S. Burns was improperly excluded.</p> <p>Error was also assigned to the admission of the testimony of counsel.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit by Duffy, against Scott, to recover $800, alleged to have been lent to Scott in 1844. It appeared from the evidence, that the money was lent at Camden, New Jersey, and that Scott, at the time, said he wanted it to bet on the presidential election; it was to fill a bet. A witness said, “ I can’t say whether the bet was then made, but it was to stake for a bet on the presidential election. . . Scott gave no check or due bill; he said he would give a check, but Duffy said he need not give it then; they would settle it another time.”</p> <p>The court directed the jury, that if they believed that the money was lent for the purpose of being bet upon an election, and so applied, they should find for the plaintiff, subject to the opinion of the court on this point.</p> <p>The jury found a verdict for plaintiff for $868, subject to the opinion of the court on the above point.</p> <p>Defendant moved for a new trial, and which rule was discharged, and judgment was entered for the plaintiff.</p> <p>Error was assigned as to the charge and the entry of judgment.</p>

This case was brought up from the Court of Nisi Prius. It was an action of debt, by David Erb and Jacob Erb, administrators, &c. of Christian Erb v. Freeman Scott, administrator, &e. of Henry Landis, on a judgment recovered in Ohio. On the trial, before Gibson, O. J., the following certificates, • with other certificates, were offered in evidence and admitted. The State of Ohio, Claris County, ss.

This was an ejectment by J. B. Hoffman and Barbe and wife v. Martin Danner and others, brought in October, 1846, for a piece of ground in that part of the Borough of York known as “Hays Addition,” as lot No. 14, on the northerly side of Main street, beginning at the borough line, and extending in front westerly along said Main street 256 feet, and in length or depth northerly 226 feet to a twenty feet wide alley, bounded on the easterly side by land of Martin Danner, on the…

This was an action on the ease, brought by John Dunlap against Wallingford and others, for injuries alleged to have been done by defendants to two houses of the plaintiff, in Pittsburg, by undermining and otherwise injuring the same.

This was an action of assumpsit by Hopkins v. Eorsyth as sheriff, to recover the plaintiff’s proportion of money, raised by a sale by defendant, of the interest of plaintiff in the steamboat Circassian, and which remained after payment of the execution, on which the sale was made. Oliphant, Duncan, Hopkins, Cox, Gilbert, Troth, Eeynolds, and Miller were owners of the steamboat, as tenants in common, having different interests in it.

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of debt. The Narr. set forth, that Jacob Hays and John Hays were summoned, &c., for that they, on the day of A. D. at the county aforesaid, by their writing obligatory, sealed with their seals, acknowledge themselves to be bound to the plaintiff in the sum of hundred dollars— upon condition that the said Hays should not well and truly do and perform all the duties of constable of Mifflin township, in the county aforesaid. Now the plaintiff avers that he, the said Jacob Plays has not performed the said duties of constable, but hath wholly neglected and refused so to do in the execution of certain process wherein, &c. Yet the said defendants, although often requested so to do, have not paid the said sum of five hundred dollars to the said plaintiff, or any part thereof, &c.</p> <p>The plea was nil debet and payment, and afterwards, in December, 1841, an affidavit of defence was filed.</p> <p>February 2, 1842, judgment for plaintiff, sum due to be liquidated by prothonotary. April 22, 1842, sum due liquidated at $138.98. December 22,1842, on motion, rule to show cause why-execution should not be set aside and the judgment opened. April 20, 1848, rule discharged.</p> <p>Fi. fa. to December term, 1842. Sci. fa. to March term, 1847, against Jacob Hays with notice to Snodgrass, administrator of the estate of John, with notice to heirs, &c. Snodgrass plead payment, &c. Subsequently affidavit of defence of Jacob Hays filed; and afterwards defendants plead nul tiel record and payment, with leave, &c.</p> <p>April 18, 1848, tried by jury and verdict for plaintiff for $182.12, judgment.</p> <p>It was assigned for error,</p> <p>1st. The narr. does not set forth either the date or amount of the bond on which suit is bi'ought.</p> <p>2d. The narr. avers no breach of the condition of the bond, nor does it set forth that Hays was a constable, nor the township or county for which he acted, nor what kind of process he failed to execute, nor which Hays was to perform the condition of the bond, both bondsmen being of the name of Hays, nor the time when the process was delivered.</p> <p>3d. The judgment is not authorized by the record, nor was the defendant in default.</p>

<p>1. The limitation, by the act of 24th February, 1834, of the lion of a decedent’s debts to a period of five years, is extended to a period of ten years, by an action brought and judgment recovered against the personal representative alone, within the first period.</p> <p>2. An action of debt, professedly based on the first judgment, but to which the heirs of the decedent are made parties, may be regarded as an original action, in which the parties are bound to set up every available defence,- and a judgment recovered for want of a plea, will preclude them from afterwards averring payment before the second judgment, in a collateral proceeding.</p> <p>3. The second action being brought within five years after the decedent’s death, is of itself sufficient to continue the lien of his debts for the second period of five years.</p> <p>4. A judgment creditor, who, as the agent of the widow, received rents to which she was entitled under the will of her husband, is not liable to account for them, by crediting them on his judgment.</p> <p>6. A non-joinder of any of the heirs, must be taken advantage of by plea in abatement.</p> <p>6. That a minor was personally summoned, constitutes no objection on the part of other defendants; and that the wife of the judgment creditor was not joined in the proceeding on the judgment, is not a ground of objection by the other heirs.</p>

This was an action of replevin in favor of M. Mouille & Co., the vendors, against Hays & Black, the agents of the carriers of the goods, for twenty-four boxes or packages of merchandise, in exercise of their right of stoppage in transitu, the goods having been sold by the plaintiffs to Rhodes, of Massillon, Ohio. For further statement of facts, see opinion of his Honor Judge Hepburn.

<p>Error to the District Court of Allegheny county.</p> <p>This was a scire facias on a recognisance issued in favor of Hartman and Hoge v. Morrison on his recognisance of bail for stay of execution, in a judgment obtained by plaintiffs against Hamnet and Schoyer.</p> <p>On the judgment against Hamnet and Schoyer a fi. fa. had issued, which was stayed by order of plaintiff’s attorney. No levy had been made upon it.</p> <p>On the trial, the deposition of Hamnet was offered, on the part of defendant, to prove that an arrangement had been made between himself and Mr. Bigham, plaintiff’s attorney, which discharged Morrison.</p> <p>The deposition was rejected.</p> <p>On same side, it was also offered to be proved by McMillan, that at the time the fi. fa. against Hamnet, one of the principal debtors, was in the hands of the sheriff, and which was stayed by order of plaintiff’s attorney, that Hamnet had sufficient personal property in his possession to pay the debt.</p> <p>The evidence was rejected.</p> <p>Verdict for plaintiffs.</p> <p>Errors assigned:</p> <p>1. In rejecting the deposition of John Hamnet.</p> <p>2. In rejecting the evidence of McMillan.</p>

This was a scire facias on a claim for materials, as follows: Richard Mahon, of the county aforesaid, brickmaker, files this, his claim for the payment of $65.99, against all that certain three story brick dwelling-house, situate on the corner of Morgan and Cedar streets, in the Fourth Ward of Allegheny city, in the county aforesaid, being 16 feet in front by 18 feet in depth, and the lot or piece of ground appurtenant being 25 feet in front by---in depth.

<p>A party objecting to evidence, is to be confined to the ground of objection taken in the court below.</p> <p>■ The declarations of a former owner of land, adjoining to that in dispute, made in the presence of his adjoiner at the time of the running of the line between their lands, that a certain tree was a corner between them, is evidence in an ejectment between the adjoiner and another.</p> <p>In an action of ejectment, a former claimant and occupant, whose possession was necessary to make up the continuity of adverse possession for twenty-one years, is competent to show that he did not hold adversely to the adjoining owner of the land in dispute in the case.</p> <p>A party is entitled to such an answer to a point, as is intelligible to the jury.</p> <p>Where two marked trees exist, and the line from a known corner, by the course of the original survey, will not strike both of them, it is to be run diagonally between them.</p>

<p>Where the legislature provides a specific remedy for the recovery of damage for injuries sustained by the construction of a work of internal improvement, by a corporation, a party injured cannot have recourse to a common law action.</p>

The bill of E. W. Stephens had been presented to the District Court sitting in chancery, against Forsyth, sheriff of Allegheny county, and William Nelson and others, heirs of Cornelia Stephens, daughter of Cornelia Stephens, which latter had been the wife of A. C. Stephens, and daughter of E. Gr. Nelson. The plaintiff complained, in this case, that in 1830, E. Gr.

<p>Error to the Common Pleas of Allegheny county.</p> <p>This case originated before a justice of the peace, brought by H. W. Buffum and J. H.Buffum, partners, doing business under the firm of Buffum & Co., against A. B. Seitz & Co., to recover a balance due on hook account, for goods sold and delivered. Defendant appealed, and plaintiffs entered a rule and had arbitrators chosen, who awarded against them, on the ground that their action was brought against the wrong defendant. Plaintiffs appealed from the award, and obtained leave to amend by adding the name of Frederick Seitz, trustee of Ann§, Barbara Seitz & Co., defendant. The attorney of A. B. Seitz then withdrew his appearance, having no warrant or authority from the said Frederick to act for him in the matter. September 17, 1849 — rule on defendant to plead on ten days notice, or judgment. September 22, 1849 — the court order that the record he amended, so that the party defendant on the record shall he “ Frederick Seitz, trustee of Anna Barbara Seitz & Co.” It was alleged, that this was the order intended to be made on the 8th instant, and omitted by a clerical mistake. It was alleged on the paper hook on part of defendant, that this amendment was granted without any rule to show cause, without notice, and without argument.</p> <p>October 4, 1849, judgment for want of a plea.</p> <p>It was assigned for error,</p> <p>1. The court erred in making the rule absolute, taken on the 7th of September, 1849, and permitting the plaintiffs to amend the record by adding the name of a new party.</p> <p>2. The court erred in making the order of the 22d September, 1849, and permitting a further amendment, and the substitution of one party for another, the same having been done without notice, and after the attorney of A. B. Seitz had withdrawn Ms appearance.</p> <p>3. The judgment is erroneous and void. The declaration sets out a cause of action against A. B. Seitz & Co., hut none against Frederick Seitz, the person against whom the judgment is entered.</p> <p>4. The plaintiffs bring their suit against A. B. Seitz & Co., without setting out the names of the members of the firm.</p>

<p>1. The limitation to an action against sureties of executors or administrators, prescribed by the proviso to the second section of the act of 4th April, 1797, (3 Smith 297,) is not applicable to an original administration bond taken by the register, but only to an additional bond given by order of the Orphans’ Court.</p> <p>2. In an action in the name of the Commonwealth for the use of the person aggrieved, on an official bond, the judgment is, by the act of 14th June, 1836, relative to official bonds, to be, first, for the Commonwealth for the amount of the penalty; and secondly, for the plaintiff in interest, in the amount of damages assessed by the jury.</p> <p>3. Where the narr. in such an action, concludes to the damage of the plaintiff, this is merely the formal allegation of nominal damage, and not on account of the damages sustained by the party for whose use the action was brought.</p> <p>4. As to the narr. in such an action, and the allegation of a devastavit, see this case.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was an action of ejectment by Shields against George Miltenberger for a lot of ground in the city of Pittsburgh.</p> <p>Shields claimed under a deed from Miltenberger, the defendant, who conveyed the lot to Shields, the plaintiff, on January 13,1829, subject to annual ground rent of , and delivered to bim tbe possession.</p> <p>Defendant claimed under James S. Craft. Tbe claim of the latter was under a sheriff’s sale and deed for the lot in question, sold as tbe property of Shields, tbe present plaintiff. Miltenberger obtained judgment against Shields in a suit brought in 1839. Pi. fa. issued to November term 1840. The lot was levied on and extended at $>100 per annum.</p> <p>A notice, dated August 28, 1841, and signed by plaintiff’s attorney, was served upon Shields, stating that be was permitted to retain possession of tbe property extended at tbe valuation, and on failure, proceedings will be bad for tbe sale of tbe premises levied on, &c.</p> <p>On this notice was endorsed “ Served by copy on defendant, September 14,1841.” “So answers, R. Lytle.” “B. Weaver, Sheriff.” The body of tbe endorsement was in tbe handwriting of Sheriff Weaver’s clerk, and R. Lytle sometimes acted as bis deputy. Tbe signature of “B. Weaver, Sheriff,” was added after this ejectment bad been brought, and several years after the said B. Weaver’s term of office bad expired, and without leave of court. Tbe notice was marked, “ Filed January 4, 1842.”</p> <p>To tbe admission of this evidence plaintiff’s counsel objected:</p> <p>1. That tbe ten days after inquisition held bad elapsed. 2. That tbe notice served on the defendant should have been signed by tbe sheriff, and not by plaintiff’s attorney. 3. That tbe return was bad, not stating whether defendant had accepted said premises or neglected and refused so to do, within tbe time prescribed by law. That tbe signature of “B. Weaver, Sheriff,” was a nullity, and that in tbe absence of a proper return of service by tbe sheriff, tbe service of the notice should be proved by the person alleged to have served the same.</p> <p>The court admitted the evidence; plaintiff’s counsel excepted.</p> <p>Defendant then offered the venditioni exponas to January term 1842, in said case, with the return of sale of the lot of ground in dispute to James S. Craft, for $20.00. He also offered the sheriff’s deed to Craft.</p> <p>It was objected that the issuing of the writ of venditioni exponas was illegal; and that the purchaser, Craft, took nothing by the deed. The evidence was admitted, and excepted to.</p> <p>Plaintiff’s counsel asked the court to charge that the evidence showed the sheriff’s sale to be void, and that the verdict should be for the plaintiff.</p> <p>The court refused to charge the jury, and charged that all the defects and irregularities subsequent to the writ of fieri facias and inquisition, were cured by the acknowledgment of the sheriff’s deed. That said sale and deed vested in James S. Craft, under whom the defendant claimed, a good title to the lot in question, and that their verdict should be for the defendant.</p> <p>To this plaintiff’s counsel excepted.</p> <p>Verdict was rendered for the defendant.</p> <p>It was assigned for error:</p> <p>1st. The court erred in admitting the evidence mentioned in the first bill of exceptions.</p> <p>2d. The court erred in admitting the evidence mentioned in the second bill of exceptions.</p> <p>3d. The court erred in charging the jury that all the irregularities in said proceedings subsequent to the writ of fi. fa. and inquisition thereon, were cured by the acknowledgment of the sheriff’s deed, and that by said sale and deed, a good title to said lot was vested in James S. Craft, the purchaser.</p>

<p>These were writs of error to the District Court of Allegheny county.</p> <p>These were two suits brought by McCIurtan & Co., to the same term. Writs issued in August, 1849, the one against the mayor,, aldermen, and citizens of Allegheny, for issuing the notes or city scrip in question; the other against Henry Campbell, for having, in his capacity of mayor, signed the notes on which the suits were founded.</p> <p>The narr. contained a schedule of the notes, dated in 1847, 1848, and 1849, amounting in all to $8942.</p> <p>They were actions of debt for the sum of $3942, for that amount of notes or city scrip, issued by the defendants, and held by the plaintiff; and also for 20 per cent, interest thereon, in pursuance of the act of Assembly, passed 12th April, 1828, forbidding the circulation of small notes under the denomination of five dollars.</p> <p>And thereto the defendants pleaded that they had not issued and circulated the notes declared upon, and issue was joined thereon. And afterwards, on the 28th February, 1850, the same issue came on to be tried before Hon. Walter H. Lowrie, Assistant Judge of said court, and on the trial thereof, the plaintiffs, in order to maintain and prove the issue, gave in evidence certain ordinances of the Select and Common Councils of the City of Allegheny, authorizing the issue of said notes, and therefore a verdict was rendered in favor of the plaintiffs, and the following question was reserved by the court, viz.: Can the Select and Common Council of the City of Allegheny, a municipal corporation, subject their constituents to the penalty of the act of the 12th April, 1828, concerning small notes, &c., by creating a circulating medium of small notes, contrary to the provision of that law. If it be decided that the councils may thus bind their constituents, then judgment is to be entered for the plaintiffs for the amount of the notes declared upon, with 20 per cent, interest.</p> <p>If otherwise, judgment is to be entered for the defendants, or for the plaintiffs for the amount of said notes, without interest, as the court shall adjudge.</p> <p>Afterwards, on the 16th April, 1850, the said reserved question came on for hearing before the court, and was argued by counsel, and on consideration thereof, was decided in favor of the plaintiffs, and judgment was accordingly entered in their favor. And inasmuch as. the said matters do not appear by the record aforesaid, the counsel for the defendants did then and there, except to the decision of the court on the said question.</p> <p>It was assigned for error, that the court erred:</p> <p>1st. In sustaining the demurrer.</p> <p>2d. In entering judgment, on the point reserved, in favor of the plaintiffs.</p> <p>3d. In entering judgment for a greater sum than declared for.</p>

This was an action of debt on a bond, instituted in favor of Denny et al. Executors of the will of James O’Hara, deceased, v. Stackhouse and Tomlinson. Defendants plead release and payment with leave, &c. On the trial, the defendants gave in evidence the proceedings in a scire facias on a mortgage, given to secure the payment of the bond in suit.

There were two suits: one by Fulwood v. Bushfield, and the other by McKinney’s Administrators v. Bushfield. Bushfield was bound, in 1837, in a bond to Davidson, in which Fulwood and McKinney were bound as sureties. The bond was conditioned for the payment of $3000 in instalments, one of which was payable on 1st April, 1843, and another payable on 1st April, 1844. In October, 1842, Bushfield, the principal, was discharged as a bankrupt.

Errur to the District Court of Allegheny county. This was an ejectment by Jacob Hays v. Thomas Harden, for a tract of land in Allegheny county. Thomas Harden was the tenant of James Harden and wife, and Abraham Hays. Plaintiff and defendants claimed under John Hays. Jacob Hays, the plaintiff, claimed the whole land under a deed in his favor from John Hays, dated 1832, which deed was by others alleged to be void on account of insanity in John Plays.

This was an action of trespass brought by Palmer against Forsyth, who was then sheriff of Allegheny county, for seizing in execution his goods and selling them as the property of Mrs. Rhodes, on an execution against her, though he was notified that the goods were the property of the plaintiff. On the trial, the plaintiff offered Mrs. Rhodes as a witness to prove that the goods were the property of the plaintiff. She was objected to as incompetent.

Error, to the District Court of Allegheny county. This was an action of ejectment brought by Vie against Sowers and Sowers, to recover a leasehold property for a term of years, on Ohio street, in the city of Allegheny. The property had been sold at sheriff’s sale. The plaintiff Vie claimed as assignee of the sheriff’s vendee. On the trial, there was offered, on the part of plaintiff, the sheriff’s deed and the assignment of it to him.

<p>1. This court will confine its attention to what is presented in the hill of exceptions, and its proper appendages.</p> <p>2. A hill of exceptions may contain a recital in extenso of the evidence, or may consist of a condensed statement of such of the facts proved, or which the tesmony tended to prove, as is necessary to comprehend the points ruled, and the instructions to the jury.</p> <p>3. Where there is conflicting evidence as to a change of possession of personal property, after a sale of it, it should he referred to the jury.</p> <p>4. Though actual possession he taken, yet if the sale were made to defraud creditors, it is void as to them; hut whether this were so or not, is a fact for the jury.</p> <p>5. The transfer hy a son, in failing circumstances, of his personal property to Ms father, may excite suspicion of fraud; hut it is not fradulent peí- se. Whether fradulent or not, is for the jury.</p> <p>6. That personal property is transferred by a formal instrument of writing, is usually hut a slight circumstance in the question, as to the existence of fraud in the transaction.</p>

<p>1. In a proceeding by foreign attachment, it is error fbr the jury to find against the garnishees for a definite sum, without also finding what goods or effects, if any, were in their hands, at the time the attachment was executed, or after-wards, and also the value thereof.</p> <p>2. In an action in assumpsit, on book account, the plaintiff may take judgment at the third term, for default of appearance, in pursuance of the 53d section of the act of 13th June, 1836; and by the 73d rule of the District Court of Allegheny county, the prothonotary may liquidate the amount.</p> <p>3. A clerk in a retail store has no right, without the assent of his employer, to sell the goods by wholesale, in payment of a debt of his principal, whether due or not due; and such a sale will not divest the title of the principal.</p>

<p>One who has purchased the title of the tenant on ground-rent, which had been sold at sheriff's sale, but who has made a gift of the premises and delivered possession before the rent in arrear accrued, but who has not convoyed, and is the owner of the mere legal title, without possession or right of possession, or perception of profits, is not liable, in covenant or other action, to the ground landlord, for the ground-rent in arrear.</p>

<p>1. In the ease of articles of agreement, leasing land with the right to purchase, though such right rests solely with the purchaser, it may be enforced by the purchaser, and such optional right may be transmitted to his vendee; notice of this right will be imputed to a second purchaser from the original vendor, by actual possession of the land agreed to be sold, which is consistent with the contract.</p> <p>2. The right of the vendee of the purchaser to enforce the agreement, is not affected by the fact that he was one of the owners, who covenanted to convey, but who afterwards sold to his co-tenant, his interest in the premises.</p>

<p>1. On the trial of a scire facias on a mechanic’s lien filed against the owner and two contractors, it is not competent for the owner and one of the contractors to release the other contractor from liability for costs, and render him a competent witness for the defence.</p> <p>2. Buildings erected by a lessee for years, on the ground leased to him, are not subject to a mechanic’s lien.</p>

<p>1. Under the 34th section of the act of 24th February, 1834, relating to executors and administrators, in order to divest the interest of heirs in real estate, by sheriff’s salo, it is necessary to make them parties to the proceeding, even though the suit on which the sale took place was commenced against the administrator before that act was passed. The case is not within the exception in the 70th section of that act.</p> <p>2. A committee of a lunatic may maintain ejectment in his own'name, to recover the possession of the real estate of the lunatic.</p> <p>3. The receipt, by the committee of a lunatic, of purchase-money of the interest of a lunatic in real estate, illegally sold at sheriff’s sale, will not estop a future committee of the lunatic from recovering the possession of the property, even though valuable improvements have been made upon it since the sale.</p>

<p>Unimproved lots of ground separated by a sale by former owners from a larger piece of enclosed ground, but remaining enclosed with such other ground by an outside fence, and not separately enclosed, and cultivated before and after assessment, but not in cultivation when assessed, cannot legally be assessed as unseated, and sold for taxes.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a proceeding in foreign attachment instituted by Hildebrand against-Moore,-Porter, and others — under the name of the Ohio Stage Co., to recover the value of a trunk, and its contents, alleged to have been delivered by the plaintiff to the defendants, owners of a public stage, to carry from Pittsburgh to Wooster, Ohio.</p> <p>The attachment was served on John Meskimen, the agent of the Ohio Stage Co. in Pittsburgh, and returned nihil as to the others. Upon the return of the writ, defendants’ counsel moved to dissolve the attachment, on account of the omission of the Christian names of defendants, and because foreign attachment would not lie. When this motion came up for argument, the court permitted the Christian name of Porter, one of the defendants, to be supplied, by prefixing Kemble R. thereto, and dismissed the motion. A declaration was then filed, consisting of four counts, against “ Kemble R. Porter and others.”</p> <p>The 1st count was against K. R. Porter and others, as the proprietors of a common stage coach for the conveyance of passen7 gers, &c., and charged them with receiving plaintiff and his trunk, “to be carried, &c. safely,” and set forth the breach as follows: “Yet the said defendants, &c., the plaintiff did not safely carry, &c., but so carelessly and negligently behaved, that by the negligence, &c. of said defendants, the trunk was lost,” &c.</p> <p>The 2d count was against defendants, “ as common carriers of passengers, and their luggage, from Pittsburgh to Wooster, in said stage; and charged that, as common carriers, they received plaintiff and his trunk, &c., to be carried safely,” &c., and laid the breach as follows: “Yet said defendants, not regarding their duty as common carriers, but intending to deceive, &c., did not safely carry, &c., but behaved themselves so negligently, &c., that by the negligence of the defendants, the said trunk, &c. was lost.”</p> <p>The 3d count, in which the receipt of the trunk, and an undertaking to carry it safely, ivas alleged, had been stricken out, on motion of plaintiff’s counsel.</p> <p>The 4th count was against defendants as depositors, and charged “the delivery of a trunk for safe keeping, and that through their negligence it was lost,” &c.</p> <p>The defendant, K. R. Porter, plead in abatement, that the undertakings, if any, were made with nine others, naming them. The defendant demurred to said plea, and plaintiff joined. The court overruled the plea, and entered judgment of respondeat ouster.</p> <p>The defendant, K. R. Porter, then plead “not guilty.”</p> <p>Upon the trial; it was proved or admitted, that plaintiff took his seat in the Ohio Stage Co.’s stage, and paid his fare. That a trunk of a passenger was put into the stage-boot, and that the stage drove round several squares for passengers, and when it returned, the trunk was missing. That it contained $45 worth of clothing, and $55 worth of carpenter’s tools. That the plaintiff was a carpenter, moving to the State of Ohio, &c,</p> <p>Defendants’ counsel requested the court to charge the jury that plaintiff could not recover in foreign attachment. The court, Lowrie, J., reserved the question, which, after verdict, was argued and decided‘in favor of plaintiff. Verdict was rendered for $45 for clothing, and for $55, value of tools, and that they were the reasonable tools of a carpenter.</p> <p>Exceptions were taken: — 1. The court erred in permitting the Christian name of Porter to be supplied. 2'. In deciding that foreign attachment would lie in this case. 3. In deciding the plea in abatement against defendants. 4. In entering judgment for tbe tools, &c.</p>

This was an action of ejectment brought to enforce the payment of the balance of the purchase money due on an article of agreement, not under seal,… Held: by Lowri®, J., to be conclusive of the title to said share, as between all parties to that suit. Plaintiffs’ counsel excepted. Error was assigned to the rejection of the evidence on the part of plaintiffs; and 2d, in holding the judgment in partition a conclusive bar against the right of the parties in this action, &c.

of the City of Allegheny, against the Township of Allegheny, in the County of Armstrong. Sampson Shanor, a married man, became chargeable upon the poor fund of Allegheny city, on the 18th day of November, 1847. The directors of the poor of said city relieved him until they could obtain an order for his removal to Leeehburgh, in Allegheny township, Armstrong county, the place of his former residence.

<p>In an action on the case for a deceit in recommending one as responsible, who was not so, the suppression of the indebtedness of the individual, is not a legal fraud. It is evidence of actual fraud, but not conclusive; and actual fraud is necessary to maintain the action.</p>

This was an action of ejectment by Remington v. Irwin, to recover the possession of a tract of land in Allegheny county, containing 88 acres and 119 perches. It was an action of ejectment in the nature of a bill in equity, to enforce the specific performance of the contract for the sale of the land. On the 4th of April, 1848, John Irwin, the defendant, entered into an agreement with Z. W. Remington, the plaintiff, to sell and convey to him the tract of land in dispute.

<p>1. Where a testator has devised his real estate in fee, a mortgage afterwards executed by him to the devisee, upon the estate devised, payable after the death of the testator, is not an absolute revocation of the devise, but is a revocation merely pro tanto.</p> <p>2. Declarations of a testator, though made after the execution of his will, are admissible as evidence of imbecility of mind.</p> <p>3. It is not necessary, in order to set aside a will, that derangement of intellect be proved. Imbecility of mind, short of insanity, is sufficient for that purpose.</p> <p>4. A will may be set aside for a less degree of insanity in the testator, than is necessary to be proved in order to acquit him of a crime or misdemeanor.</p> <p>5. The subscribing witnesses to a will are not always the best to prove the sanity of the testator.</p> <p>6. In a .case involving a question of sanity or insanity in a testator, the facts in evidence ought not to be presented to the jury in an isolated manner, but should be submitted as a connected whole.</p>

This was an action of covenant by McGinn against Taggart. McGinn, in January, 1839, leased a lot in Pittsburgh, on ground-rent to Morris; the rent to be paid semi-annually, on the first days of April and October. In July, 1847, all the estate and interest of Morris was assigned to Taggart. The breach alleged was the non-payment of the rent. The defendant filed his affidavit of defence and pleaded at length on notice.

This was an action of debt on a lease, brought by Hazlep vs. Saunders and Williams, before a magistrate. Judgment was entered generally by the magistrate for the plaintiff on the 24th of April, 1848: afterwards, on the 23d of March, 1849, an alias summons issued vs. John Williams, one of the original defendants, and judgment entered against him by default. Appeal was entered to Court of Common Pleas — the plaintiff entered a rule of reference against both defendants.

Buffum & Co., in May, 1849, brought suit against Hutchison before an alderman, from whose judgment defendant appealed to the Common Pleas, and plaintiff again procured a judgment on award of arbitrators. Plaintiff issued a scire facias against Seidenstriker, who was bail for Hutchison before the alderman. Defendant plead nul tiel record. ' May 19,1850, after argument, judgment ■for plaintiff for twenty dollars, the penalty, to be released on payment of costs.

Error, to the District Court of Allegheny county. This was an action of trespass for assault and battery, brought by William McKenna against the three defendants below. There was a general appearance de bene esse, and the sheriff’s return was “ C. 0.” and “B. B.” annexed, as to all the three defendants. The record shows that Breidenthal, one of the defendants, on the 31st day of January, 1849, pleaded not guilty.

This was an action of assumpsit, brought in the name of the President, Managers, and Company of the Pittsburgh Farmers’ and Mechanics’ Turnpike Road Company, for use of James S. Craft, vs. David Beeler. The case was tried in April, 1847, before Hepburn, J. The narr. contained two counts, one averring an indebtedness to plaintiffs for tolls, and a promise to pay.

<p>Error, to tbe District Court of Allegheny county.</p> <p>This was the case of a scire facias by Reeside vs. Bayer, on a mechanic’s lien filed by Reeside vs. Bayer, owner and contractor, &c., for $147.10. Reeside, stone-mason, filed his claim for the payment of $147.10 against a certain two-story brick house, (describing its situation,) and lot of ground, &c., to wit, stone, mason-work, &c., and materials, to wit, stone, lime, sand, &c., done and furnished by the said Alexander H. Reeside, within the six months last past, to wit, between the 1st June, 1848, and 1st April, 1849, for and about the erection and construction of said building and appurtenances, of which the said Dr. C. Bayer was and is the owner, or reputed owner; and at his instance and request, he being the contractor, architect, and builder thereof, &c., and the said claimant hereto annexes a bill of particulars of the amount of his said debt, &c.:</p> <p>Dr. C. Bayer to Alexander H. Reeside, Dr.</p> <p>To 91-|- feet cut stone hearth, at 35 cents per foot..........$ 81.90</p> <p>“ 302 feet Ashler drawn cut stone, at 37-|- cents per foot 113.25 &c., &c., &c.</p> <p>including 90 feet curbstone, at 25 cents per foot, 22.50. Credit was allowed for $96.42; leaving a balance of $147.10.</p> <p>The above work done and materials furnished, between June, 1848, and April 1st, 1849.</p> <p>No date was stated in the account. A demurrer was filed on the part of defendant. Judgment on the demurrer against defendant, quod respondeat ouster.</p> <p>It was objected that the lien does not set forth the time at which the several materials were furnished, or the time said work was done. 2d. That said claim includes material not subject to lien. The latter objection referred to the claim for curbstone.</p> <p>The case was submitted on the printed arguments.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action on the case brought in the District Court of Allegheny county, by Alexander W. Foster, and J. Herron Foster, publishers, &c. of “ The Pittsburgh Daily Dispatch,” against Chambers McKibben, late postmaster of the city of Pittsburgh.</p> <p>The narr. contains two counts, and recites the act of Congress of 8d March, 1845, section 18. It sets forth the fact, that the plaintiffs’ paper has the largest circulation of any other published in said city; that, having complied with all the conditions set forth in the act, they demanded the publication of uncalled for letters, which was refused by defendant. It alleges that such refusal by defendant was illegal and corrupt, and lays the damages at f5000. The facts and circumstances were set forth in the narr. with great minuteness and particularity.</p> <p>The defendant, having first pleaded “ not guilty,” when the case was called up for trial withdrew his plea, and entered a general demurrer, which he supports on the ground that, although the facts be true as alleged, the refusal of defendant, and publication of the letters in “The Morning Post,” is damnum absque injuria.</p> <p>Upon which demurrer, the court below entered judgment for the defendant, and the plaintiffs sue out this writ of error.</p> <p>The act of Congress of 3d March, 1845, sec. 18 — Laws U. S., vol. v., Peters’ Bdition, provides as follows:—</p> <p>“ All advertisements made under the orders of the postmaster general, in a newspaper or newspapers, of letters uncalled for in any post-office, shall be inserted in the paper or papers in the town or place where the office advertising may be situated, having the largest circulation; provided the editor or editors of such paper or papers shall agree to insert the same at a price not greater than that now fixed by law. And in case of question or dispute as to the amount of the circulation of any papers, the editors of which may desire this advertising, it shall be the duty of the postmaster to receive evidence and decide upon the fact.</p> <p>The case was argued by A. Burke, for plaintiffs in error. — The value of a newspaper is its reputed circulation: 8 W. Ser. 245; 1 Peake’s Rep. 74. On this ground, the good-will of a newspaper is treated as property: Kennedy v. Lee, 3 Mer. 452-5.</p> <p>The defendant was a ministerial officer; but though it were otherwise, if in the exercise of his discretion he has acted wilfully and maliciously, he is liable: 8 Wend. 462; 1 Burrowes 556; 2 id. 785; 1 East 556, 562, note 563-4; 1 Leigh N. P. 545-6, note; 7 Greenleaf 412, 421.</p> <p>Express malice need not be proved: 1 East 565-6, note; Cowper 765; Story on Agency 319-20 et seq.</p>

This was an action of trespass quare clausum fregit, by Wain-right vs. McCullough. Plea not guilty, with leave, &e. March 5, 1849. Verdict for plaintiff. Wainright owned Wainright’s Island and nine acres on the main shore close by.

Error, to the District Court of Allegheny county. This was a scire facias on a mechanic’s lien, filed against a dwelling-house, describing it, for work and labor, to wit, carpenter work done, and materials furnished in and about the erection and construction of said double frame dwelling-house, within six months last past, the said work having been commenced on or about the 10th day of December, A. d. 1847, and finished on or about the 6th day of May, A. D. 1848, a bill of…

A suggestion was filed under tbe quo warranto act of 14th June, 1836, in the name of the Commonwealth of Pennsylvania ex relatione the Attorney General vs. The Mayor, Aldermen, and Citizens of Pittsburgh, in which, amongst other matters, it was alleged that the Select and Common Councils, for the purpose of depriving-the mayor of the city, Joseph Barker, Esq., of his jurisdiction and powers in the appointment of the night police of the said city, did, in Oct. 1850, enact…

<p>Error, to the Court of Common Pleas of Allegheny county.</p> <p>This was a scire facias to revive a judgment entered upon a transcript from the docket of a justice of the peace. A judgment was confessed in favor of William McCandless vs. Isaac Williams, before a justice of the peace, for |561.50, &c., with stay of execution for eighteen months. A transcript was filed in Nov. 1843, in the Common Pleas, to Dec. term, 1843, No. 90.</p> <p>On June 5, 1845, another transcript was filed of the same judgment, in the same court, to June term, 1845, No. 147. Execution from the justice had been returned no goods. Mi. fa. to Oct. term, 1845, No. 48. In Oct. 1846, rule to show cause why levy, &c., should not be set aside, at plaintiff’s costs. Oct. 24, 1846, rule made absolute. Meb. 5, 1848, at the instance of attorneys of plaintiff, this case transferred to the District Court, No. 90, April term, 1848, agreeably to the act of Assembly.</p> <p>Afterwards, viz. on Nov. 13, 1848, a scire facias issued in the Common Pleas to revive the judgment entered to Dec. term 1843, on the first transcript. It issued against Isaac Williams with notice to Bobert Potter and Albert McElheny, terre tenants. Oct. 27, 1849, plea of Potter and McElheny filed. Dec. 4, 1849, replication filed, and judgment against Williams in default of appearance and plea, and a jury sworn to try the issue between plaintiff and Potter and McElheny, who found for plaintiff $813.88. Dec. 20, on motion, rule to show cause why the judgment and all subsequent proceedings should not be set aside.</p> <p>In the District Court, the removal was docketed William McCandless v. Isaac Williams, to April term, 1848, No. 90. — May 19, 1842, judgment was confessed for the sum of five hundred and sixty-one dollars and fifty cents debt, with seventy-five cents costs. Execution returned “ no goods.” Transcript filed, June 5, 1845, &c.</p> <p>Dec. 20, 1849, rule to show cause why judgment and all subsequent proceedings should not be set aside. Jan. 5, 1850, the transfer of this judgment set aside, and all subsequent proceedings thereon.</p> <p>It was assigned for error, inter alia, that the whole proceedings are irregular; the judgment having been certified into the District Court, the Court of Common Pleas had no jurisdiction.</p> <p>The case was argued by Woods, for Potter; Loomis on same side. — It was contended that the Common Pleas had no jurisdiction; that the proceedings in the Common Pleas were all one record, and that was removed into the District Court.</p>

This was an action of assumpsit on book account, brought by John Lyon vs. Daniels & Williams, partners. The narr. contained the common counts, and defendants plead the general issue, and payment, &c. Plaintiff called Jacob B. Lyon.

<p>Error to the Common Pleas of Clarion county.</p> <p>This case was an issue directed by the court, on appeal from the report of auditors of Clarion county. The matter to be tried was the legality of an order, drawn by the late commissioners of Clarion county, on the treasurer, in favor of James Hasson, late sheriff of that county, for $200; and the questions tried were, whether Hasson was entitled to be paid for office-rent, and for fuel for the jail.</p> <p>In the issue, Clarion county was plaintiff, and Richardson, executor of Richardson, and others, late commissioners, were defendants.</p> <p>Buffington, J., charged that the item of office-rent ought not to be allowed.</p> <p>As to the claim for fuel, he charged, as stated in the opinion of Coulter, J., concluding, “We, therefore, think that this item ought to be rejected, and a verdict rendered against the defendants.” Verdict was rendered for plaintiff.</p> <p>Assignment of Errors:</p> <p>1. The court erred in charging the jury that the issue agreed upon, to try the legality of the order issued by defendants, whilst commissioners of Clarion county, on the treasurer, for certain claims preferred by James Hasson, sheriff, against the county, dispensed with the necessity of producing and giving in evidence the report of the auditors.</p> <p>2. The commissioners having only allowed two hundred dollars of the bill preferred by James Hasson against the county, the court should have instructed the jury that the commissioners having passed upon the bill and allowed a part of it, the auditors had no power to charge the commissioners with any part of that sum, unless there was evidence of corruption on the part of the commissioners.</p> <p>3. The court erred in charging the jury that the sheriff was not entitled to compensation for fuel for the jail.</p> <p>4. The court erred in charging the jury that the sheriff was not entitled to pay for office-rent, it appearing from the evidence that the sheriff had rented a house in which he kept his office, and that the county had no office erected for the sheriff.</p>

<p>Error, to the Common Pleas of Erie county.</p> <p>This was an action of assumpsit, brought by Erey and his wife, against John Lantz, the plaintiff in error, to recover upon an implied assumpsit for the services of the wife of defendant in error, under the following circumstances : The said Lantz married a widow, the mother of the wife of said Erey. The child at the time of the marriage was eight or nine years old; she went with her mother after the marriage, and lived in the family of Lantz/the stepfather, as one of his own children, without any contract whatever. On the part of Lantz, it was alleged that she was fed, clothed, and schooled, the same as his own child, and she worked in the family in the same manner, until she was between eighteen and nineteen years old, when she married Jacob Erey. Soon after her marriage, she and her husband brought this action to recover wages for the time she lived in the family of her stepfather. The court charged the jury that the plaintiffs below were entitled to recover upon the quantum meruit; of which charge and instruction of the court, the plaintiff in error complains.</p> <p>There was evidence on part of plaintiffs, that the child lived with its uncle until its mother married Lantz; that Lantz said, if she would come and live with him, he would use her as one of his own children. That she worked faithfully — was poorly clad — she was not sent much to school; that she worked in the family, like the other children.</p> <p>On the part of defendant, that she was sick considerable; that she was clothed as other girls in similar circumstances; that she can read.</p> <p>Church, J., charged: — If a stepfather requests his wife’s daughter, who has already a suitable home provided for her with her relatives, to come and live with him, and she consents and does so, and he furnishes her with work for him, which she performs, it occurs to the court that the law implies a promise on his part to pay a reasonable compensation in the way of maintenance and education, clothing, &c., according to the circumstances and situation in life of the parties; and if he fails to do this, an action lies to secure such reasonable compensation. This is certainly but justice, and, we think, the law too.</p> <p>Whether the evidence makes out these requisitions, and thus sustains a cause of action in this case, upon these legal principles, is for you, and you alone. Are they such ?</p> <p>To which charge, defendant excepted.</p> <p>Verdict for plaintiffs, for $55.</p> <p>Error was assigned to the charg’e, the third assignment being, that the court ought to have charged the jury, that from the facts disclosed in evidence, no promise by defendant to pay plaintiff’s wife wages, could be inferred.</p>

Schwarze was the last owner of a water lot, No. 82, in Erie, he having purchased it in 1836, from the burgess and town council of the borough of Erie. They gave him a deed, and took his bond and mortgage on the lot to secure the balance of the purchase money. This mortgage continued a lien on the lot till the treasurer’s sale.

<p>Error, to tbe Common Pleas of Clarion county'.</p> <p>This was an action by Reynolds, for use, (without stating the person,) against Richards, to recover the amount of a note, as follows :</p> <p>Twelve months after date, I promise to j>ay to the order of Alexander Reynolds, fifty dollars, with interest from the date hereof, and without stay of execution, after due, for consideration of the carpenter work in our article of agreement, for in-lot, No. 126, Nov. 3d, 1841.</p> <p>Signed, Abraham Richards.</p> <p>Test: A. Jamison.</p> <p>The narr. contained a special count on a promissory note, and common counts. Plea, payment, &c. Reynolds had an article of agreement with the commissioners of Clarion county, for two in-lots. He agreed to sell to Richards one of the lots, and Richards agreed to pay him $100, viz., $50 in hand, and $50 in carpenter work, at cash prices, to be paid when said Reynolds demands it. Said Reynolds is to make the title as soon as the work is done.</p> <p>Reynolds, on the 1st day of June, 1842, transferred the said note, by endorsement on it, without recourse, to Alexander Jami-son ; and it also appeared that Alexander Jamison endorsed the note in blank.</p> <p>For further facts, see charge of Burlington, J.: — In the present case, the plaintiff seeks to recover on a note dated on the 3d Nov., 1841, calling for $50 in carpenter work. Richards bought lot No. 126 from plaintiff, and agreed to pay him $100; $50 of which was to be paid in hand, and the balance, by the article, was to be paid in carpenter work, at cash prices, when demanded, and the title to be made as soon as the work was done. A receipt is endorsed on the article for the money, and also for the note now in suit, on the payment of which, plaintiff acknowledges he is to make over the commissioners’ article. On the 11th of June, 1845, plaintiff endorses on the article of agreement, an unconditional request or order to the commissioners to make the deed to Richards. The state of facts arising from the written papers, raises a legal presumption that the amount of the note had been paid, according to its terms, at the time the order was given. But to rebut this presumption, the plaintiff has read in evidence the assignment of .the note to Alex. Jamison, dated the 1st June, 1842; and it further appears, that the said Jamison endorsed the note in blank; when, and to Tvhom, does not appear. The present suit is brought in the name of Reynolds alone, without being marked to the use of any one. We, therefore, treat the endorsement of Jamison as passing the interest out of him; and that, together with the order to the commissioners, and the fact that the suit is brought in the name of Reynolds alone, as passing the interest back to him. The whole case being in writing, it becomes the duty of the court to decide it; and we have come to the conclusion that the whole of the written papers raises a legal presumption that the note was paid ; and that the verdict should be for the defendant.</p> <p>To which opinion of the court the plaintiff’s counsel excepted.</p> <p>Verdict for defendant.</p> <p>It was assigned for error:</p> <p>1st. That the court erred in saying to the jury that the suit was brought in the name of Reynolds alone, when the record shows it was brought in the name of Alexander Reynold’s, for use: Armstrong v. The City of Lancaster, 5 Watts 68.</p> <p>2d. The court erred in treating the endorsement of Jamison, together with the order to the commissioners, and the fact that the suit was brought in the name of Reynolds alone, as passing the. interest in the note back to Reynolds.</p> <p>3d. The court erred in attaching any importance to the blank endorsement of Alexander Jamison, as the note was not negotiable, and the interest of Jamison would not be passed by a blank endorsement; and also, there was no evidence that Reynolds ever had the possession of the note since he assigned it to Alexander Jamison, on the 1st day of June, 1842.</p> <p>4th. -The court erred in instructing the jury that, from the whole of the written papers given in evidence, there was a legal presumption that the note was paid.</p>

Error, to tbe Common Pleas of Erie county. Tbe widow and heirs of Robert McCracken, deceased, plaintiffs in error, v. Carson Graham and Smith Jackson. In tbe Supreme Court, No. 7, September term,1850. Writ of error by the plaintiffs, wbo were plaintiffs below, to review the judgment of tbe Court of Common Pleas of Erie county.

This was an action in the name of Hiram T. Dewey, for the use of Moses Koch, plaintiffs in error, vs. The Burgess and Town Council of the Borough of Erie, in the county of Erie.

<p>Error, to the Common Pleas of Warren county.</p> <p>This was an action of trespass on the case, by Lovell against Kidder and others, for a conspiracy to induce the wife of Lovell to desert the residence and society of her husband, without any just cause.</p> <p>On the trial, before Church, J., the defendants, in support of the issue on-their part, offered to prove, by the declarations of the plaintiff’s wife, made the day before she left plaintiff, what reason induced her to leave her husband, and when she intended to leave. To which evidence plaintiff did then and there object, and thereupon the court overruled the objection and permitted the evidence to be given, &c.</p> <p>The defendants then offered the deposition of Louisa Beebe, as the evidence embraced in the above offer. To which deposition the plaintiff objected, because the deposition does not contain the evidence proposed and permitted by the court, and because it is incompetent for defendants to prove the conduct of plaintiff and his friends, at other times, and wholly independent of the time or proximate to the act or period of leaving, by the mere declarations of the wife.</p> <p>i Whereupon the court sustain the objection to the deposition so offered as an entirety, because it does not appear to be any thing more than the mere naked, independent declarations of the wife, of acts of plaintiff towards her, long prior to and unconnected with any immediate alleged cause of her leaving, and because it does not appear to have been given by the wife as the reason for her then contemplated departure, and no other evidence is offered in connection with it to prove these were her alleged reasons for leaving her husband. Defendants, by their counsel, excepted.</p> <p>The defendants, by their counsel, then proposed to ask their witness, James Follett, how long he had known the plaintiff’s wife, and what her natural disposition was. To which plaintiff objected, on the ground that the testimony proposed was wholly irrelevant. And the court sustained the objection. Defendants, by their counsel, excepted.</p> <p>"Verdict for plaintiff, against three of the four defendants, for three hundred dollars.</p> <p>It was assigned for error:</p> <p>1. The court erred in rejecting the deposition.</p> <p>2. The court erred in sustaining the objection to defendants’ offer.</p>

<p>Error to the Common Pleas of Warren county</p> <p>Samuel H. Lloyd vs. Thomas Struthers and Robert Falconer. This was a judgment entered in favor of Lloyd vs. Thomas Struthers and Robert Falconer jointly, upon a joint and several note of hand signed by them, No. 97 to June term, 1844, for $816.70. A fi. fa. was issued on the same No. 97 to September term, 1846. On the 31st August, 1846, on motion and affidavit filed, a rule was granted to show cause why the judgment should not be opened and defendants let into a defence.</p> <p>September 11, 1847, this rule made absolute so far as Robert Falconer is concerned, and judgment opened as to him, the lien to continue; and rule discharged as to Struthers, with leave to plaintiff to take, out execution against him. July 3, 1849, Falconer plead payment, with leave, &c., and the issue still remains untried.</p> <p>March 14, 1849, another fi. fa. was issued on the judgment against Struthers alone, and reciting the judgment as against him alone. July 6, 1849, the attorney of Struthers moved that the proceedings in his case be stayed until the issue with Falconer be tried. This motion the court sustained, and stayed the execution till next term. September 8,1849, the court vacated the order to stay execution, and refused to grant the motion of July 6, 1849. September 10, 1849, a pluries fi. fa. issued, No. 15, to December term, 1849, against Struthers and Falconer both, and reciting the judgment as against both, with memorandum on back of the writ as directed in precipe, “Proceedings stayed as to R. Falconer, b.y the court.” October 5th, 1849, a rule was granted on plaintiff to show cause why this fi. fa. against T. Struthers should not be set aside, returnable forthwith to the court; and, on hearing, the motion to set aside was refused by the court.</p> <p>Assignment of errors:</p> <p>1. The court, having opened the judgment as to Falconer, erred in ordering execution to issue against Struthers pending the untried issue between the plaintiff and Falconer.</p> <p>2. The court erred in their order of September 8th, 1849, vacating their order of July 6th, 1849, staying execution, and in refusing to grant stay of execution until the trial of the issue with Falconer.</p> <p>3. The judgment having been opened as to Falconer, the fi. fa. against Falconer and Struthers was improvidently and irregularly issued, and the court erred in refusing to set it aside.</p>

<p>1. "Where A has the earliest judgments against a debtor, who was owner of two separate properties, the one in town, the other in the country, and B obtains a subsequent judgment against the same debtor; two persons desiring to purchase the town property, agree with A, that if he will release the same from the lien of his judgments, a judgment which A was to take from the debtor, in lieu of his two former judgments, should be the first lien on the country property. If on the sale of the country property, the judgment of B be taken out of the proceeds, A has a right to subrogation to the judgment of B as to the town propeHy, as against the purchasers, who" made the agreement, and to whom and others it was conveyed by the debtor, after the said agreement. He is not obliged to resort to his personal covenant with them.</p> <p>2. That A has purchased the country property at the sheriff's sale, and sold it at an advance, will not affect his right of subrogation.</p>

<p>Where concert is part of a criminal act, it is not a subject of indictment as a conspiracy to commit the act. There is no such offence as a conspiracy between a man and a woman to commit adultery.</p>

Er.ror to the Common Pleas of Erie county. In this case, Henry Wilkes brought ejectment against Williams et al., plaintiffs in error, for four lots in the 2d section of the town of Erie. Both parties claimed through Edward W. Pratt: Wilkes, by deed from Pratt, dated March 30th, 1837; and Williams and others, by attachment of the lot as the property of Pratt, August 3d, 1837, judgment and sale thereon by the sheriff to them.

, who were defendants below. In this case, Mary Ann McKee and Harriet McKee, by their guardians, brought ejectment against John McKee and Matilda McKee, for two-sixteenths of one hundred acres of land. Both parties claimed through John McKee, who died intestate in 1814, seized of the land in question, leaving fonr children, Polly, John, Alexander, and Thomas, and a widow.

<p>1. The declarations of a vendor, made in the absence of the vendee, that he had sold the personal property in question for the purpose of preventing his creditors from collecting their debts, are not admissible against the vendee: nor that he would not pay a particular creditor.</p> <p>2. Nor can evidence be given by a witness, of his belief that it was generally known at a furnace, at which the vendor and vendee worked, at the time of the purchase, that the vendor was in debt, it not proving fraud in the purchaser.</p>

<p>Certiorari to the Common Pleas of Beaver county.</p> <p>An act of appropriation and description of the lands and tenements of Brocket, intended to be taken, was filed on the part of the Ohio and Pennsylvania Railroad Company. Appraisers were appointed, whose report was set aside and new appraisers appointed. They reported that they met, &e., and after being duly sworn, and after hearing the testimony, do appraise and assess the damages to the property of the defendant (Brocket) at $500, and benefits none.</p> <p>The proceeding was had under the ninth section of the Ohio act, chartering the company. The act was adopted by the Legislature of Pennsylvania. See act in the Pamphlet Laws of 1849, p. 754, &c.</p> <p>The ninth section provides, that “such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate as much thereof as may be deemed necessary for its railroad, including necessary sidetracks, depots, work-shops, and water-stations, materials for construction, except timber, a right of way over adjacent lands, &e.</p> <p>The company are also authorized to purchase any such lands, or interest of the owner of such land, or in case the same is owned by a person insane, or an infant, at a price to be agreed upon by the guardian or parent of such insane person, or infant, if the same shall be approved by the court in which the description shall be filed. The award of the arbitrators appointed, as to the matter of damages, may be reviewed by the court, on written exceptions filed by either party; and the court shall take such order therein, as right and justice may require, by ordering a new appraisement, on good cause shown,” &c.</p> <p>Exceptions were filed on the part of Brocket, which were subsequently overruled. Certiorari filed.</p> <p>The material errors assigned were: — That the court erred in overruling the third exception, which was, that the Railroad Company have no authority, by their charter or otherwise, to remove or take off the dwelling-house or out-buildings, or disturb the owner or the inhabitants thereof, by removing or taking off the same, without the consent of the said owner, or inhabitants therein.</p> <p>The court erred in not submitting the case to a jury of the county to assess the damages on the first report of appraisers, instead of ordering and appointing a second set for that purpose.</p>

<p>Certiorari to the Common Pleas of Leaver county.</p> <p>This was a proceeding by Robert Wallace vs. The Ohio and Pennsylvania Railroad Company, to recover damages on account of their railroad passing through his land.</p> <p>This case originated under an act of Assembly of this commonwealth, passed the 11th day of April, 1848, entitled, “An Act to incorporate the Ohio and Pennsylvania Railroad Company,” (Pamph. Laws of 1849, p. 754,) which act adopts and enacts into a law of this commonwealth, all and singular the provisions of an act of the Legislature of the State of Ohio, passed the 24th day of February, 1848, entitled, “ An Act to incorporate the Ohio and Pennsylvania Railroad Companyand further provides, in the 6th section, “ That exemplified copies of the said act of the State of Ohio, and of an act passed by said state on the 11th day of February, 1848, entitled, “ An Act regulating railroad companies,” shall be annexed to this act, and published in the same manner as this act shall be published.</p> <p>In conformity with the provisions of the 9th section of the last-mentioned act, which constitutes part of their charter, [Pamph. Laws q/1849, p. 758,) the company, on the 27th of March, 1850, deposited with the prothonotary of the Court of Common Pleas of Beaver county, an instrument of appropriation, containing a description of the rights and interests of defendant, Robert Wallace, intended to be appropriated to the use of their railroad. A copy of said instrument of appropriation was afterwards delivered to the defendant; and, upon application in writing made by the company to Judge Irvin, one of the judges of the court aforesaid, he appointed, by his warrant bearing date the 27th day of March, 1850, three disinterested freeholders of said county, to appraise the damages which the said defendant might sustain by said appropriation.</p> <p>The appraisers so appointed proceeded, on the 4th of April, 1850, to enter upon the duties of their appointment, in the presence of the attorney of the company, and of the defendant and his attorney. Having been duly sworn, they viewed the ground appropriated, and made out an award in favor of defendant, the owner of -the land, for $900; which award was returned to the said prothonotary, and filed on the 4th day of April aforesaid.</p> <p>Exceptions were, on the 6th of April, 1850, filed by the attorney of the company to the award of the appraisers; and on the 9th of May, 1850, the exceptions were overruled by the court, and the award confirmed.</p> <p>Award. — Big Beaver township, April 4th, 1850. We, the appraisers appointed by the annexed rule of Court of Common Pleas of Beaver county — the Ohio and Pennsylvania Railroad Company against Robert Wallace — met, according to agreement, at the house of R. Wallace, and, after being duly sworn according to law, and having viewed the lands and tenements, ground occupied by the said Ohio and Pennsylvania Railroad Company, more particularly described and set forth in a schedule and plot thereof hereto annexed, and made part of the same; after taking into consideration the advantage and disadvantages of the Ohio and Pennsylvania Railroad, do award the said Robert Wallace the sum of nine hundred dollars damages, to be paid him by the said Ohio and Pennsylvania Railroad Company. — Award under hand and seal.</p> <p>Plaintiffs, by their counsel, filed exceptions to the award of the appraisers, the first of which was:</p> <p>The award does not conform to the requisitions of the act of • Assembly incorporating the company, but is fatally defective.</p> <p>May 9, 1850, exceptions overruled, and award confirmed.</p> <p>Assignment of error:</p> <p>The court below erred, in overruling the first exception filed by the counsel for the plaintiffs to the award of the appraisers, and confirming the award.</p> <p>It is provided in the 9th section of the act regulating railroad companies, hereinbefore referred to, that “ such appraisers shall be duly sworn; they shall consider the benefit as well as injury which such owner shall sustain by reason of such railroad, and shall forthwith return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damages done to the property, the amount of benefit conferred, and the difference between the damages done to the property taken, which they assess to such owner or owners separately,' to be by him filed and recorded.”</p>

This was an ejectment to Dec. term, 1842, for five hundred acres of land, brought in the names of Dorothy Brien, Henry Rodgers, and Sarah his wife, late Sarah Brien, against Christy and others. The land was a donation tract drawn by Gen. Edward Hand. He left three children, viz.: Dorothy, Sarah, and Mary; Dorothy intermarried with Edward Brien, and left one child, Sarah, wife of Rodgers, plaintiff in the suit.

<p>Error to tbe Common Pleas of Beaver county.</p> <p>This was an ejectment by Little and wife, and C. Agnew, heirs of John Leitch, vs. Daniel and Malcolm Leitch, to recover the undivided three-fifths of a tract of about 100 acres, with notice that mesne profits would be claimed for the six years immediately preceding the institution of the suit. Both parties claimed under John Leitch, deceased. The plaintiffs claimed as his heirs ; Daniel Leitch, one of defendants, was a son of John Leitch.</p> <p>Defendants below claimed as follows: — On the 18th May, 1813, John Leitch, Daniel Leitch, and Joseph Bigham, by articles of agreement, purchased from Ebenezer Yowell, in whom was vested the legal title, a tract of land containing about three hundred acres, of which the land in controversy was part. Partition was made between them, and Daniel Leiteh and the heirs of Joseph Bigham paid Vowell their proportion of the purchase money on the parts allotted to them. The land in controversy was allotted to John Leiteh, who entered into possession of it, and occupied it till his death in 1827,1828, or 1829. At his death, there were about forty acres cleared, and two small cabins and a log stable on it.</p> <p>On the 15th December, 1829, Ann Leiteh, the widow of John Leiteh, entered into an agreement in writing with Daniel Leiteh and the plaintiffs in this suit, by which they agreed to let her have the real and personal estate of John Leiteh, her late husband, during her life, for her maintenance; and she agreed to sell the personal property, excepting a few articles, and to pay the debts of the estate. She made use of the personal property, and died in 1838 or 1839, leaving the debts, hereafter mentioned, unpaid, and no personal property wherewith to pay them. Before her death, Daniel Leiteh leased from her the land in controversy, and went into possession, and has remanied in possession ever since.</p> <p>The purchase money of the land in controversy, was not all paid in the lifetime of John Leiteh; and after his death, to June term, 1835, Vowell brought an ejectment against Daniel Leiteh, who had then leased from the widow,- to enforce the payment of the purchase money; and in September, 1836, Daniel Leiteh confessed a judgment, with stay of execution to the 1st April, then next ensuing, to be released upon the payment of such sum of money as might be found due by the counsel of the parties. On the 27th January, 1837, the amount due the plaintiff was liquidated at $320.51, costs $19.97|-. On the 17th April, 1837, John Little, one of the defendants in error, paid $12 of'the costs, which sum was refunded to him on the 1st April, 1845, by Daniel Leiteh. Daniel. Leiteh paid the remainder of the judgment and the costs.</p> <p>In Nov. 1838, letters of administration on the estate of John Leiteh, deceased, were granted to Daniel Leiteh. He procured an order of sale, and in Sept. 1840, reported sale to himself, which was confirmed. In 1841 he paid a claim of Harbison and wife, against the estate of John Leiteh. In 1846, on petition of Little and wife to the Orphans’ Court, the sale to Daniel Leiteh was set aside.</p> <p>Daniel Leiteh, after his purchase, and before the application to set the sale aside, made valuable improvements on the land. Before and at the time of the sale, and whilst he was making the improvements, John Little and wife lived in Beaver county, seven or eight miles from the land; and Catharine Agnew in Pittsburgh, about eighteen miles from it.</p> <p>Deed was to be made by Vowell, the vendor, on payment of the second instalment of the purchase money, and mortgage on the land given to secure the residue of it. No conveyance of the legal title to the land in dispute, to John Leiteh, or, since his decease, to his heirs.</p> <p>That John Leitch owed to Vowell the purchase money paid by Daniel Leitch, or to Harbison and wife, the debt paid them, was not denied on the trial below; nor was the title to three-fifths of the land disputed. The defendants below claimed, before they surrendered the possession of the land, to be reimbursed the purchase money paid to Vowell, with interest, and the costs of the Votvell ejectment, and the debt paid to Harbison and wife, with interest from the time of payment, and the costs paid on the Harbison judgment; and also contended, that they were answerable for mesne profits only from the time when the sale made under the order of the Orphans’ Court was set aside; or, at most, only for one year before the bringing of the ejectment.</p> <p>On the part of plaintiffs, a point was presented: — 1st. That the defendant was clothed with no possession or title acquired from Vowell that would protect him against the recovery of his co-tenants, who had been ousted by him from the prior possession of their own under the contract. 2d. That the debts paid by Leitch were not liens on the land when paid by him; and, therefore, not recoverable on that ground. 3d. That the statute of limitations had barred the recovery of the money paid by him; and, therefore, not recoverable on that ground. 4th. That the possession cannot be withheld, in this case, on the ground of payment of any other sums of money paid by him. 5th. That the defendant cannot set up any of the improvements against the mesne profits. 6th. That if the value of any of the improvements be allowed defendant, it can only be so far as they may go to extinguish the mesne profits, and not as a substantive set-off, or so that an excess over the pro'fits can be recovered from the plaintiffs.</p> <p>On the part of defendants, a point was presented to the effect, inter alia, that the payment, to Vowell or his agent, of the purchase money, was also for the plaintiff’s benefit; and that he was entitled to be reimbursed by the plaintiff, three-fifths of the money so paid, with interest thereon, and the costs of the ejectment.</p> <p>The court, Bredin, inter alia, charged, that though the contract existed between the widow and the heirs of John Leitch, deceased, giving the possession and profits of the real estate of the deceased to her during her natural life, and Daniel Leitch being in possession under his mother; and, although the action of ejectment brought by Thomas Vowell against Daniel Leitch was to June term, 1835, and by the recovery of the land, unless the balance of the purchase money was paid, the title of the plaintiffs, as well as the title of Daniel Leitch, was gone; and though the payment of the balance of the purchase money by Daniel Leitch, some years before the death of his mother, operated to the benefit of the plaintiffs and the defendant, Daniel Leitch, yet he cannot retain the possession until repaid this money.</p> <p>Verdict was rendered for the plaintiffs.</p> <p>Error was assigned:</p> <p>1st. In the answers of the court to the plaintiffs’ first point, and defendants’ first point.</p> <p>2d. In the answers to the second, third, and fourth points' of plaintiffs, in which the court say, “that the debts paid by the defendant (Daniel Leitch) are not recoverable in this suit, nor can the defendants retain possession from their co-tenants, until their share of the money is paid.”</p>

This was an ejectment for 100 acres of land, by McCall and others, heirs of Archibald McCall, vs. Anchors and Smith. Defendants claimed by possession, taken in 1840. Verdict for plaintiffs. The tract of land, of which the land in dispute is a part, was surveyed on 29th March, 1837, by Thos. H. Lyon, deputy surveyor, and contains 451 acres and 40 perches; which was given in evidence as the official survey of the whole tract.

The question in this ease was whether collateral inheritance tax was due to the commonwealth, out of the estate of William Ayres, of Butler county, deceased. A case was stated for the opinion of the court, in the nature of a special verdict. It appeared that William Ayres, Esq., died on the fourth day of April, A. D. 1843, unmarried and without lawful issue, but leaving William John Ayres, an illegitimate son, and brothers and sisters, and other collateral heirs.

This was an ejectment by Barnhart and others vs. Christy and the minor children of William Barnhart, deceased, for 100 acres of land. The plaintiffs claimed as heirs of Jacob Barnhart, and the defendants as heirs of William Barnhart, who was a son of Jacob. ■ Eifty-one acres and 102 perches of the land in dispute was admitted to have belonged to Jacob Barnhart, and was at one time a part of his old place.

This was an action by Hetrick vs. Campbell and Crum. The action was in trespass, brought to recover the value of a yoke of oxen, which, in the summer of 1848, were the properly of the plaintiff. It seems that a judgment was obtained against him on the 30th August, 1840, which remained unsatisfied, and, on the 22d July, 1848, was assigned to Hugh Campbell, one of the defendants.

Error, to the Common Pleas of Westmoreland county. This was an action on the case for a nuisance, brought by Christy against Bovard, for flooding his lands by the erection of a mill-dam upon Beaver Run, a small stream which ran through the farms of the parties. It appeared from the evidence, that John Bovard, the father of the plaintiff in error, erected a saw-mill dam, upon Beaver Run, in 1816, the water from which dam he used for driving a saw-mill, until his death.

These were writs of scire facias in the name of Joseph Konigmaker, administrator de bonis non of Samuel Cochran, deceased, vs. Catharine Brown, acting executrix of James Brown, Jr., deceased, with notice to the widow, heirs, and devisees of said deceased. They were three writs of scire facias, issued to June term, 1848, to revive three judgments against James Brown, existing to September term, 1825.

• This was an action on the case by David Davis vs. Steiner, executor of Philip Kuhns, deceased. Summons issued 22d Jan. 1848. The plaintiff claimed in this case to recover on the grounds — that, on the 5th. March, 1819, he sold, by articles of agreement, a tract of land to Jacob Dry, for $2530, and received on it the hand-money — one thousand dollars. About the time of the sale, judgments were entered against David Davis, the plaintiff, for about six hundred dollars.

<p>Under the 38th section of the act of 15th April, 1835, relating to Inspections, and the 2d section of the supplement thereto, of 31st March, 1836, a miller is required to have his brand-mark entered with the clerk of the Quarter Sessions only when the flour barrelled is intended for exportation out of the State, except by the Delaware or Susquehanna, or their branches; when shipped by either of those streams or their branches, to a market out of the State, but within the United States, the brand-mark need not be entered: and the question of intention is for the jury.</p>

Error, to the Common Pleas of Westmoreland county. This was an action of seduction, brought by Kistler against Eichar, who was charged with having seduced his daughter and got' her with child, whereby plaintiff lost her services, &c. The facts were these: Eichar frequently visited the house of Kistler, and kept company with his daughter Catharine, during the years 1846-7. She proved to be with child, and it was born on the 10th day of August, 1847.

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was a suit by Hilty vs. Callen. Hilty was Callen’s tenant, under an agreement in writing, in which Callen covenanted to find the boards, nails, and laths, for a house. Callen having furnished but part of the boards, and no nails or laths, Hilty brought this suit, and declared in covenant to recover damages from Gallen, the landlord, for non-performance of this stipulation.</p> <p>Defendant pleaded set-off, and, amongst other things, gave evidence of plaintiff’s having cut trees, and sold the timber off the land leased, and of his not having fulfilled his agreement in other particulars.</p> <p>The agreement was under seal. It witnessed, that the said Gallen doth let or give the said Hilty privilege of living four years on his farm, from the first day of April next. The said Hilty is bound to clear thirty-five acres of land on said farm, and build the fences six rails high, and stake and rider said fences: and the said Hilty is to such buildings on said farm as may suit his own convenience — Gallen to furnish the boards for house, and also nails and lath for a clapboard roof — twenty acres of the land to be cleared on the east side of the Beaver Run, and the balance on the west side of said run; four acres of the said clearing to be put in grass (or meadow); one-third of the plough-land not to be seeded when the said Hilty quits the possession on the first day of April, 1848. The said Hilty is not to join fences with the said Callen at any part of the said lease. Callen reserves the use of all the timber, except tohat may be necessary for the buildings, rails, and fire-ivood of the said Silty.</p> <p>Knox, J., charged, inter alia, that when there was a failure on the part of either party, the jury should estimate the damage, and set off one against the other, and return a verdict for the difference in favor of whichever was entitled.</p> <p>2d. That the reservation of the timber in the article in favor of the defendant, did not extend to the timber on the land which plaintiff cleared; but as to that he could do what he pleased, either burn it or take it off and use it for his own purposes.</p> <p>Defendant’s counsel excepted, and error was assigned as to the part of the charge relating to the timber.</p>

This was an ejectment by Robert Wray vs. George Miller and others, for a tract of land said to contain about one hundred and fifty acres. Robert Wray claimed title under warrant to Millisentt Wade, dated 23d July, 1773, surveyed 9th Dec. 1773. Defendants claim under warrant of same date to John Morton, with survey thereon, 10th Dec. 1773. The surveys adjoin each other.

This was an action of assumpsit, by William McCullough vs. James S. McCullough, to recover, inter alia, the value of certain boards, which were run down the Ohio River by defendant. Whether they were sold by defendant, did not appear in testimony. On the trial, the court was requested to instruct the jury that the price of the boards cannot be recovered in this action, because there is no evidence of a sale; but the action ought to have been in trover or trespass.

<p>1. Where a trespasser on land commences an improvement, and makes a gift of his right to another, or authorizes a sale of it, and leaves the possession, and it is sold, and the vendee takes possession in pursuance of the contract, the possession of the trespasser can be tacked to his own, so as to give title to the vendee, by the statute of limitations.</p> <p>2. Where the possession of a trespasser is abandoned, the law casts the possession on the legal owner; but to constitute abandonment and create a vacancy to produce that effect, the title of a subsequent holder must be unconnected with the title of the previous holder; but when the entry of the subsequent holder is with the permission of the previous holder, the former may tack the one possession to the other: and actual possession by the first holder at the time of the entry by the second, is not neccessary to authorize that result.</p> <p>3. If a settler designate his boundaries by the lines of the surrounding surveys, his vendee can claim the land within those boundaries; if otherwise, he can claim only the part actually enclosed and improved.</p>

<p>Error to the Common Pleas of Jefferson county.</p> <p>This was an appeal by defendant from the judgment of a justice of the peace, in a suit by the President, Managers, and Company of the Mahoning Navigation Company, against John Grubb, to recover the amount of subscription for two shares, of $25 each, in the stock of the company. The narr. alleged the existence of the act of 1st April, 1845, for the incorporation of the company, the appointment of commissioners to receive subscriptions, and the issuing of letters-patent; that the company was organized by the election of officers; and that Grubb subscribed for two shares of the stock. The plea was non assumpsit, and payment with leave,</p> <p>&e. Plaintiffs gave in evidence the act of Assembly and charter of incorporation, and evidence of the subscription by Grubb.</p> <p>Burlington, J., charged: — In the present case, the plaintiffs seek to recover the amount of the subscription, being two shares of stock, amounting to fifty dollars, subscribed by the defendant, to the capital stock of said company. For that purpose they have shown the act of assembly authorizing the incorporation of said company, the letters-patent, and the subscription-book in which the defendant’s name appears, taking two shares of stock. This they proved to be genuine by the witness who was present and saw him sign it.</p> <p>The plaintiffs, upon this evidence, rest their cause, and ask for a recovery. This is objected to by defendant, who contends that by the act of assembly to which the one authorizing this company refers, it is necessary to show that the company was regularly organized by the due and proper election of officers, and that notice to pay was given to the subscribers. On the first of these questions we differ with the counsel of the defendant, and instruct the jury that it is not necessarydn the trial of this cause, to show a regular election of officers, or what he calls the organization of the company. As to the second question, if the defendant was aggrieved for the want of notice, he ought to have pleaded that matter in abatement, but the matter being dilatory in its character, and not going to the merits of the case, cannot avail the defendant in the general issue.</p> <p>Upon the whole of the evidence, if the jury believe the defendant made the subscription, his objection will not avail him, and the plaintiffs are entitled to recover with interest from the time of bringing suit.</p> <p>To which charge the defendant objected. Verdict for plaintiff.</p> <p>It was assigned for error: — 1st. The court erred in instructing the jury that proof of a regular organization of the company was not'necessary. 2d. The court erred in charging the jury that proof of notice to pay given by the plaintiff to the defendant, was unnecessary under the general issue. 3d. The court erred in generally charging the jury, that if they believed that the defendant made the subscription, his objections would not avail him, and that the plaintiffs were entitled to recover with interest from the time of bringing suit.</p>

<p>Where a raft lodged in a small stream and interrupted the channel, and caused another raft to lodge, the owner of the second raft, which is in danger from other rafts, may lawfully cut away a portion of the first, after allowing for the removal of the obstruction as much time as circumstances permit, and doing no unnecessary damage.</p>

<p>1. A written agreement for the sale of land cannot be altered by a subsequent pwol agreement. In equity, a written agreement may be rescinded by parol, but to rescind, the party desiring it must place the opposite party in the situation he occupied when the contract was made.</p> <p>2. If a judgment remaining unsatisfied on the judgment docket is actually paid, it is to that extent a compliance with the agreement to convey clear of all encumbrances, though the judgment remain open on the judgment docket.</p> <p>3. A tender of the whole chain of title is not necessary to enable the vendor to recover the purchase money; the tender of the deed alone is sufficient.</p> <p>4. Where the plea of defendant in an action of covenant, does not deny the title, it lies on Mm to prove it defective.</p> <p>5. A covenant to convey in fee simple is satisfied by a deed in fee simple with special warranty — a general warranty is not necessary.</p>

This was an appeal from the judgment of a justice of the peace, in an action brought by Wann vs. Pattengale, to recover'from him the price of fifty sets of windmill irons, sold by plaintiff to Patten-gale & Barrett, in 1839. The defendant relied upon the statute of limitations. To avoid the statute, the plaintiff showed that in June, 1844, he commenced suit against Pattengale & Barrett, before Jas. M. Wilson, a justice of the peace.

This was stated to be a summons in debt on bill under seal. The declaration alleged the suit to be on a certain promissory note or due bill, in writing.

A suit was brought in the name of Alexander Work for the use of James E. Canon against Andrew M. Work, (who was plaintiff in error,) to recover a balance of purchase money for land sold by John Work to the said Andrew M. Work. A verdict was rendered in favor of the plaintiff below, for $337.26.

This was an action of assumpsit brought by Basil Brownfield vs. Isaac Nixon, to March term, 1847. The declaration contained the usual counts, for money lent, goods sold, and account stated. The pleas were non-assumpsit, payment, and the statute of limitations added after the jury was sworn, to which amendment the plaintiff excepted. The causé had been arbitrated.

<p>This was an appeal, by Basil Brownfield, Richard Poundstone, and James Barnes, from the order of the Orphans’ Court of Payette county, distributing the proceeds of the real estate of Daniel Dimond, Sr., deceased, raised by a sale, under an order of the court, on proceedings in partition among the heirs and creditors of the deceased. Daniel Dimond died in 1830-1 or 2.</p> <p>William Smiley, a grandson of the deceased, was entitled to a portion of the proceeds, in right of his mother, and he assigned to Iloratio Griffith, as a security for liabilities incurred for him, §300 of the money raised by. the sale. He also, by his deed, conveyed to Brownfield & Poundstone, §281:25 of the proceeds of the sale, subject to the previous assignment or order to Griffith, in case the then sale should be confirmed, but if it should be set aside by the court, then he transfers to Brownfield & Poundstone, absolutely, his interest in the land of his deceased grandfather to the amount of their claim, which deed was duly recorded before the sale. The first sale was set aside by the court, and another sale made, which increased considerably the amount to be distributed; and the interest of William Smiley in the estate not producing sufficient to satisfy both claims, the question was, which was to be preferred, Griffith’s, or Brownfield & Poundstone’s. Por dates of assignment, see postea. The sale of the property was between the 14th Dec., 1847, and 22d March, 1848.</p> <p>James Barnes also appeals — he is a creditor of Henry Dimond, deceased, who was a son and heir at law of Daniel Dimond, deceased. Mr. Barnes claims the amount of a judgment obtained before a justice of the peace against the administrator and heirs of the said Henry Dimond, deceased, Jan. 29, 1839, and which was suffered to lie until the distribution of the estate in this case. Henry Dimond had no estate but his interest in the land of his father, Daniel Dimond, Sr., and that was subject to the life estate of his mother, who died but a few years since. A question was, whether James Barnes should be paid the amount of his judgment against the administrators of Henry Dimond, since his estate was in course of distribution amongst Ms heirs and creditors.</p>

<p>This was an appeal from the decree of the Court of Common Pleas of Greene county, distributing the proceeds of the sheriff’s sale of the real estate of Robert Jones.' Robert Jones was a resident of Cincinnati, to which place he removed from Greene county. Schacklett & Glyde issued a foreign attachment against him to No. 22 of March term, 1847, which was duly executed on the 18th January, 1847, upon the real estate of the defendant in the county of Greene. On the 22d of January, 1847, an appearance by counsel, and pleas were entered for the defendant. At June term, 1847, the cause was set down for trial by the plaintiffs, when it was continued by the court upon the application of the defendant. It was again put upon the trial list for September term, 1847, by the plaintiffs, when it was continued a second time, upon a like application. At November term, 1848, the. cause was reached for trial, when a verdict and judgment were rendered for the plaintiffs. In the mean time attachments were sued out by others, which were executed upon the same real estate upon which the attachment of Schacklett & Glyde was laid, and judgments were also confessed by Jones, as follows:</p> <p>Duvall, Keighler & Co., No. 46, May term, 1848. Foreign attachment, executed by defendant April 28, 1848. Judgment confessed by defendant, June 20, 1848, $587.37.</p> <p>John and James Sleven, No. 11, August term, 1848. Judgment confessed and entered, May 12, 1848, $2036.64.</p> <p>Joseph Dunlap, for himself and in trust for others, No. 12, August term, 1848. Judgment confessed and entered, May 12, 1848, $900.</p> <p>Duvall, Keighler k Co., No. 50, August term, 1848. Judgment confessed and entered, June 20, 1848, $479.90.</p> <p>The real estate, upon which the attachment of Schacklett k Glyde was executed, was sold under their judgment, and an auditor appointed to distribute the proceeds.</p> <p>The question presented for the decision of the auditor was, whether a writ of foreign attachment, regularly executed, was a lien upon the real estate attached ?</p> <p>The auditor decided that the act of June, 1836, was the foundation of the process issued in this instance, and as that act limits the lien of a foreign attachment executed upon real estate, so as to bind the same as against purchasers and mortgagees from the time of the execution of the attachment, that, therefore, the judgment of Schacklett & Glyde did not acquire a priority of lien.</p> <p>The report of the auditor was excepted to, in not appropriating the fund to the attachment and judgment of Schacklett k Glyde, but the exception was overruled by the court, and the report confirmed.</p> <p>It was assigned for error: — That the court erred in not directing the application of the fund to the attachment and judgment of Schacklett k Glyde.</p> <p>The 50th section of the act of 13th June, 1836, relative to the commencement of actions, provides, with respect to foreign attachments, that “the goods and effects of the defendant in the attachment, in the hands of the garnishee, shall, after such service, be bound by such writ, and be in the officer’s power; and, if susceptible of seizure or manual occupation, the officer shall proceed to secure the same, to answer and abide the judgment in the case; unless the person having the possession thereof shall give security therefor.”</p> <p>It is provided in section 51st, relating to real estate: — “ Every writ of attachment executed upon real estate, shall bind the same as against purchasers and mortgagees, from the time of the execution thereof; and it shall be the duty of the sheriff to file in the office of the prothonotary of the court, a description of the property attached, within five days after he shall have made the attachment; which description shall be entered by the prothonotary on his docket, and the names of the parties, with the date, of the execution of the writ, and the amount of the bail required, shall also be entered by him on his judgment docket.”</p> <p>The 64th section provides that “it shall be lawful for any defendant in an attachment, instead of giving bail or security at his election, at any time before judgment obtained in the attachment, to cause an appearance to be entered for him, and to take defence to the action ; in which case, the action shall proceed as if commenced by a summons; but the attachment shall, nevertheless, continue to bind the estate or effects attached, as in other cases, unless judgment be rendered for the defendant in such attachment ; and if judgment be rendered for the plaintiff, such judgment shall have the like force and effect as in case of an action commenced by a summons,” &c.</p> <p>The case was submitted on the printed arguments. T. W. McKennan being for appellants; and Downey and Black, for appellees.</p> <p>On the part of the appellants, it was contended, that before the act of 1886, lands in Pennsylvania were susceptible of seizure on foreign attachment; that a lien in favor of the attaching creditor, as against a subsequent judgment, was a necessary and recognised incident of such seizure;'that the act of 13th of June, 1836, does not, by express enactment, alter the law and postpone this lieir to that of a subsequent judgment; and that, to give the act this effect by construction, would go far to defeat the object of the proceeding : 1 Dal. 376; 4 id. 66; 2 id. 93; Ser. on Att. 73; 3 Yeates 285; 3 Bin. 463; 9 Watts 157; 4 W. & Ser. 345. That the act of 1836 did not provide that the land attached should be bound only as against purchasers and mortgagees; but that they should be affected with notice of its existence.</p> <p>On the part of the appellees, it was not disputed that lands were liable, before the act of 1836, to attachment; but that the question was as to the date of the lien. That, at the time of the passage of the law of 1705, lands were regarded as chattels, for all purposes, and could be levied on and sold as such. This continued to be the law until 1759, when it was enacted that lands could only be sold after condemnation, &c. It was under this state of things that the act of 1705 was passed,, which was construed to embrace lands. There is nothing in any of these acts, prior to 1836, nor in any of the adjudicated cases, that recognises the doctrine insisted on by the appellant. Doubtless, a lien attached as to personal property, arising from its changeable nature; and the officer, if possible, was to take actual possession of the goods attached. But this very fact argues that there was nothing in the policy of the law that required the application of the rule to real estate. The lien of judgments commencing from the date of the rendition thereof, there was no reason for departing from this uniform rule in favor of attaching creditors.</p> <p>Such being the law prior to 1836, the legislature revised and reduced the proceeding in foreign attachment to a well-ordered system. That, if the legislature did not intend to make a distinction between personal property and real estate, as to the date of the lien, the 51st section of the act of 1836 was useless. That if lands were goods and chattels, they would have been embraced in those terms; but the object in the passage of the 51st section was, as to real estate, to bind it as against purchasers and mortgagees only.</p> <p>That the death of the defendants at any time before final judgment would dissolve the attachment and release the property: 4 Dal. 60; 8 W. Ser. 219.</p>

<p>1. In an ejectment by a vendor against a purchaser from the vendee, to enforce tbe payment of purchase money due by the vendee, where the vendee has not paid to his vendor any part of the purchase money or made valuable improvements, the defendant cannot set up the weakness of the title of the first vendor, in defence of his own possession. He must either pay the purchase money or relinquish the possession, unless fraud has been practised upon him. Nor can he set up an outstanding title in another, or an adrorse title in himself; and his payment of part of his purchase money to the vendee will not affect the claim of the vendor, unless he was connected with the vendee in the second sale.</p> <p>2. Where a deputy sheriff purchases property at the sheriff’s sale, and there is no fraud, the owner of the property may disaffirm the sale, but must repay the purchase money paid.</p>

This was an action of covenant, brought in the court below by Enos West vs. Andrew Stewart, to recover damages for an alleged breach of warranty contained in a deed from the said Stewart to the said West, dated 16th November, 1822, for the sale and conveyance of a lot of ground in the then town of Columbus, in the State of Ohio. The suit was brought and summons issued on the 19th February, 1845.

This case was argued in 1849. It was an ejectment, brought on the 1st March, 1847, for 400 acres of land, by James Rush et al., heirs of Samuel Rush, deceased, vs. Samuel John, for 400 acres of land, and Joseph Pauli was admitted as co-defendant, as landlord of Samuel John. The plaintiffs claimed as heirs at law of Samuel Rush, deceased, and claimed under warrant to William Tinsley, survey and conveyances.

This was an action of ejectment, brought to December term, 1847, by E. B. Oliphant vs. James Pauli and others, to recover the possession of a lot of ground, in New Haven, Fayette county, containing… Held: was terminated, brought ejectment to March term, 1847, against Pauli and Gillis his tenant, for the property, to enforce the trust.

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action in case, brought by Jacob Seip, surviving administrator of the estate of Jacob Heller, deceased, against Joseph Drach, executor, &c. of Simon Heller, deceased. Pleas were non assumpsit, payment with leave, &c.</p> <p>Old Jacob Heller, having made his will, in which he appointed Jacob Heller, the younger, and Simon Heller, his executors, died. These executors, having taken upon themselves the execution of the trust, on the 25th July, 1828, filed an account, whereby it appeared 'that they were indebted to the estate of their testator $7365.29. This was a joint account. On the 1st August, 1833, Simon Heller, one of these executors and accountants, died, leaving a will, in which he appointed Joseph Drach his executor. Mr. Drach took out letters testamentary, and proceeded to administer the estate of his testator. On the 1st November, 1834, Jacob Heller the younger died, and by his death the administration of old Jacob Heller’s estate becoming vacant, letters of administration thereupon, de bonis non cum testamento annexo, were granted to Jacob Seip and Abraham Bauer. Simon and Jacob Heller, the executors of Jacob Heller the elder, being both dead, Joseph Drach, the executor of Simon, and as such, made and delivered his promissory note for $1291.04, payable on 1st April, 1835, to Abraham Bauer, one of the administrators de bonis non, &c. of Jacob Heller the elder. Some payments were made on this note. Abraham Bauer, the payee, died, and the note seems to Lave passed into the hands of his co-administrator, Jacob Seip. This suit was then instituted, amicably, between Seip, the surviving administrator de bonis non, &c. of Jacob Heller the elder, as plaintiff, and Drach, the executor of Simon, as defendant. The plaintiff claims the balance which he alleges is due to him upon this note.</p> <p>The narr. contained four counts. In the first count it was alleged that Simon Heller aforesaid and Jacob Heller the younger had been executors of the will of Jacob Heller the elder, and that, on the settlement of their joint account, there was in the hands ' of Simon Heller $4000; that he died, having appointed Joseph Drach, the defendant, the executor of his will, who, it was alleged, became liable to pay the $4000.</p> <p>In the second count it was alleged that Drach, as executor, made his promissory note, by which he promised to pay to Bauer, one of the administrators of the estate of Jacob Heller the elder, or order, the sum of $1291.04; that Bauer died, leaving Jacob Seip, the other administrator of the said Jacob Heller, surviving him — to whom the note was delivered; and that, being so liable, Drach, as executor, promised to pay the sum of money in the note specified.</p> <p>In the third count, it was alleged, that Drach, as executor, was indebted to Seip, surviving administrator, in the further sum of $4000, for so much money by the said Drach as executor, as aforesaid, before that time had and received, to and for the use of the said Jacob Seip, surviving administrator as aforesaid; and being so indebted, &c., undertook and promised to pay the said ■ sum of money when he, as executor, should be requested.</p> <p>■ The fourth count was on an accounting, between Drach as executor as aforesaid, and Seip and Bauer, as administrators de bonisnon with the will annexed of Jacob Heller, deceased, concerning divers other sums of money, from the said Simon Heller, in his lifetime, due and owing, and alleging that upon that accounting, Simon Heller, in his lifetime, and at the time of his death, was found to be in arrear, and indebted in the further sum of $4000, and being so indebted, and the money remaining unpaid, Drach, as executor, &c., in consideration thereof, undertook and promised-to pay.</p> <p>His Honor, Judge Jones, charged, inter alia:</p> <p>1. The first point of the defendant is, “ That Jacob Heller, the younger, having survived Simon Heller, his co-executor, if the plaintiff in this case has any cause of action, it is against Jacob Heller and his representatives only, and not against the executor of Simon Heller.” If Simon Heller, as executor of old Jacob Heller, received into his hands a larger portion of the estate of the testator than was received by his co-executor, he and his estate after his death would certainly be liable to his co-executor, and after'the death of that co-executor, the administrator de bonis non could also have recourse against Simon’s estate, in favor of the estate of his testator. As it has been treated in the argument, the note would seem to have been given by Simon’s executor to one of the administrators de bonis non of old Jacob Heller, for so much money due to the estate of old Jacob Heller from the estate of Simon Heller, being money which had come into the hands of the latter as executor of the former, and had not been paid over. It is true, that Simon and Jacob Heller, the younger, filed a joint account as executors; but that does not, nor does the survivorship between them, as far as we can see, affect this liability of their estates, individually, to this plaintiff. We answer this point in the negative.</p> <p>• 2. The second point of the defendant is, “That two of the counts in the declaration being against the defendant, upon a personal liability, no recovery can be had in this suit.” It seems to us that the judgment on the first and fourth counts of this declaration would be de bonis testatoris, and that on the second and third it would be de bonis propriis. The execution of the note by Drach as executor, would not save him from personal liability to the payee. The form of the judgment must determine whether several counts are properly joined. Where the judgment is the same on all the counts, they may be joined. Where it is different, they may not: Malin v. Bull, 13 Ser. & R. 443; 1 Chitty’s Plead. 235, edition of 1833. Here there is a misjoinder of counts.</p> <p>3. The third point of the defendant, “ That, even if the counts were properly joined, the plaintiff was bound to show assets in the hands of the defendant as executor of Simon Heller, and, not having done so, must fail,” we answer in the aflirmative. The verdict must be for the defendant.</p> <p>To this charge the plaintiff excepted.</p> <p>Verdict was rendered for defendant.</p> <p>It was assigned for error:</p> <p>1. The court erred in their answer to the second point propounded by defendant’s counsel, wherein they say, that the judgment on the first and fourth counts of the declaration, .would be de bonis testatoris, and that, on the second and third counts, de bonis propriis, and therefore this joinder.</p> <p>2. The court also erred in their answer to the third point propormded by defendant’s counsel, wherein they say, that if the counts were properly joined, plaintiff was bound to show assets in the hands of defendant as executor of Simon Heller, and not having done so, the verdict must be for defendant.</p>

This was an action of trespass quare clausum fregit, by Chapman against Alexander Calder and James Calder, for breaking and entering the close of Chapman, and treading down and spoiling the grass and corn, and for breaking and carrying away the fences. Defendants severally plead not guilty. Verdict for plaintiff for $8.76. Feb. 22, 1848, court grant a rule to show cause why judgment should not be entered for $8.76 with the same amount of costs. Rule made absolute.

<p>After judgment against the executor, scire facias may be issued thereon against the devisee, under the 34th section of the act of 24th Feb. 1834, relating to executors, in which proceeding judgment may be entered against the devisee.</p>

<p>Error to the District Court at Philadelphia.</p> <p>This was an action of ejectment by John Cloud, trustee of Elizabeth Panning, and Anna Maria Rigler, against Henry Rigler, for property in Kensington.</p> <p>On 7th January, 1833, Henry Rigler, plaintiff in error, by deed, conveyed to Catharine George, residing in Trenton, New Jersey, and to her heirs, the property in dispute, in trust for his wife Maria Rigler, and her heirs for ever, to the sole and sepai’ate use of the said Maria Rigler, and her heirs, and not to be in any way liable to the future control, debts, or liabilities of her present or any future husband. The deed was acknowledged by Henry Rigler, and Catharine George, on the 8th January, 1833, before the mayor of the city of Trenton, who subscribed his name, and affixed the seal of said city. The deed purported to be sealed and delivered in the presence of Thomas Gordon, (only one witness.)</p> <p>On the 26th April, 1845, a petition was presented by Elizabeth Panning, (one of the daughters of the cestui que trust, named in the deed,) as a party directly interested, setting forth that the trustee was unable from ill health to attend to the duties of Per appointment, and praying the court to appoint some one in her place, to prevent a failure of the trust.</p> <p>On the 26th April, 1845, a citation issued to the trustee, who filed an answer, admitting the allegations in the petition.</p> <p>On the 17th May, 1845, the Court of Common Pleas appointed John Cloud trustee, from whom no security was- required, notice having been given to Henry Rigler, and he appearing by counsel.</p> <p>In June following, the new trustee, Cloud, brought this suit to recover, on behalf of Anna Maria Rigler and Elizabeth Panning, the premises named in the deed of trust. Henry Rigler, the defendant, was the grantor in the deed.</p> <p>On the trial, the plaintiff’s counsel gave in evidence the petition to the Common Pleas, and the appointment of Cloud, and then offered the deed of trust, recorded August 5, 1834, in Philadelphia county. The deed was objected to, because there is but 'one witness to it; because it was not properly acknowledged or proved according to law, to admit it to record. It being contended that the 4th section of the act of 28th May, 1715, requires that deeds made out of the State be proved by one or more of the witnesses, and that the 15th section of the act of 16th April, 1840, applies to deeds by husband and wife; and, further, that the recording was an unofficial act, and that the deed could not be given in evidence without proof of its execution.</p> <p>The deed was admitted. Admission excepted to. On the part of defendant, evidence was given, that Maria Rigler, the wife of Henry Rigler, died in 1839, and that the defendant has continued in the possession of the property and of the deed of trust.</p> <p>The court charged the jury, that the plaintiff could recover as trustee, although he has given no surety; that proof of delivery of the deed was necessary, and that the aclenowledgment by the grantor is prima facie evidence of, it; that this may be rebutted, but the possession of the deed and the property is no evidence to be left to the jury, that the deed was not delivered to Catharine George; and that Mary Bigler, the wife, being dead, Henry Bigler, her husband, was not entitled to the property under the intestate laws; that their verdict should be for the plaintiff; that there was no fact to be left to the jury; that the deed was legally proved, and that one subscribing witness to a deed was sufficient. Defendant’s counsel excepted.</p> <p>Error was assigned to the admission in evidence of the deed, and in the answers and charge of the judge.</p>

This was an action on the case, by Calder against Chapman, for a libel.

<p>Appeal from tbe decree of the Orphans’ Court of Bucles county.</p> <p>An order of sale had been granted to John Davis, administrator of the estate of Thomas Purdy, deceased, to sell certain real estate for the payment of debts. The administrator reported that he exposed the lands and premises to public sale, and sold the same for the sum of $65.25 per acre, amounting in the whole to the sum of $5793.79, which sale he prays may be confirmed.</p> <p>In 1846 he settled an administration account, in which he stated himself to be, in 1845, Dr. real estate, 88 acres, &c., of land, sold &c„, at $65.25 per acre, amounting to $5793, viz. April 1, received cash, first payment, being one-third of the purchase-money,— and one-third payable in one year, with interest; the other third payable in two years, with interest yearly, — and 1846, April 1, one year’s interest on’ the two last sums.</p> <p>He asked credit for payments on bonds, and for commissions, amounting to $1839.03, leaving, 1846, April 1, balance in administrator’s hands of $4186.48.</p> <p>On the 20th Sept. 1847, his petition was filed, in which it was stated that the above account had been confirmed in Sept. 1846, but that there were errors in it, consisting in his being charged with, the two last yearly payments; and he asked for a rehearing and review of that much of the account.</p> <p>The court appointed an auditor, before whom testimony was given as to the usage in Bucks county being not to prescribe the terms of sale in the order, but to leave them to the direction of the executor or administrator; and that sales were usually made for part cash, and the residue on credit.</p> <p>The auditor reported, inter alia, that on examining the records of the Orphans’ Court he did not find that any uniform practice existed on the subject, but that in a majority of cases examined by him, reports were made without stating the conditions on which the property had been sold; and he expressed the opinion that the administrator, having sold the real estate for the payment of debts, and having made report of sale without specifying any conditions in the return, became liable to account as fully as if the whole of the purchase-money had been paid in cash on delivery of the deed for the property. The court, Krause, Pres’t, confirmed the report of the auditor.</p>

<p>Error to the Common Pleas of Bucles 'county.</p> <p>This was an action of replevin, brought by Hellings against Wright, to recover the value of ten acres of wheat and ten acres of rye, which was seized under a landlord’s warrant, issued on the 1st April, 1847, by Wright, for rent which was alleged to be due him by Hellings.</p> <p>In 1842, William Osmond was the owner of a tract of land in Bucks county. In the spring of 1842, Osmond left the property, and Hellings moved on the land and farmed it, so far as it appeared in evidence in this case, without the consent of Osmond. On the 5th of May, 1846, a judgment was obtained against Osmond by the administrators of James H. Wright, on which execution was issued and the land sold to Robert Wright, the defendant, on October 21, 1846. A deed was acknowledged by the sheriff to him, November 9, 1846. Hellings left the property some time in the last of March, 1847, having sowed ten acres of wheat and ten acres of rye the previous autumn. On April 1, 1847, this grain was levied upon under a landlord’s warrant issued by Robert Wright, and this action of replevin was brought by Hellings to recover the value of the wheat and rye, and damages, &c. The defendant avowed for rent in arrear, plaintiff replied non tenuit and no rent in arrear. Upon the trial, after the jury were sworn, and after the plaintiff had closed his case, but before the witnesses were discharged, the defendant added the plea of property, by leave of the court, the plaintiff objecting.</p> <p>On the part of the plaintiff, the court was requested to charge the jury,</p> <p>1. That there is no evidence in this cause that the plaintiff was tenant to the defendant, nor that there was any rent reserved to any person whatever.</p> <p>2. That under the evidence in the cause, the defendant had no right to distrain upon the goods of the plaintiff, and that such distress was illegal and void.</p> <p>3. That the plaintiff must recover, because the defendant has not alleged in his avowry, nor given any evidence to the jury, that he had demised to the plaintiff the tract of land upon which the property, for which this replevin was brought, was distrained, at a certain fixed rent, for a certain fixed period of time, and that the pretended rent, for which the said distress was made, was due and payable before the distress was made.</p> <p>Krause, President J., instructed the jury that the plaintiff’s claim in this action cannot be resisted by the defendant on the ground of his landlord’s warrant, since neither landlord, tenant, nor rent is proved in the case. But defendant has added the plea of property, by leave of the court, under objection, the witnesses not having been discharged. And the question is, whether this grain was his property when he took it to himself and deprived plaintiff of it ? On this point, the court instructs the jury that the sheriff’s deed, conveying Osmond’s title to defendant, also conveyed to him the growing grain, under the evidence, if it is believed by the jury, as against the plaintiff, who shows no title whatever, and entered as a trespasser against the owner. And one so entering is not entitled to take the growing crop, but the owner may'lawfully appropriate it to himself: 2 Com. Dig. 138; 1 Tomlin’s Law Dictionary, 630. And therefore, although there is no defence by virtue of the landlord’s warrant of distress, there is a full one on this ground, if the jury believe the testimony. The plaintiff has submitted certain points. The court affirm the first and the second. The third states the facts truly; but they do not entitle the plaintiff to recover if the jury find that defendant bought the title of the owner of the land at sheriff’s sale as stated, and plaintiff had taken possession of the premises, and sowed the grain in question, without authority from Osmond or Wright’s administrators.</p> <p>Verdict was rendered for defendant.</p> <p>Error was assigned to the permission to defendant to add the plea of property after the jury were sworn and the plaintiff had closed . his case; and to the parts of the charge hereinbefore stated.</p>

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action on the case, brought by Sehoneman & Elfelt against Fegley & Goff, to Nov. term, 1843, to recover a balance on book account, May 5, 1841, of $186.95, with interest, against defendants.</p> <p>The case was in this court before, and is reported: see 7 Barr 438.</p> <p>Plaintiffs showed their book of original entries, which, after crediting Fegley & Groff with two notes on other persons, one for $156, and one for $156.38, left a balance of $185.95. Elfelt, one of the plaintiffs, being under examination, said, in relation to a note on J. & Gr. C. Vanhorn for $200, it was received as all promissory notes are, which, when paid, would be in full. The amount of this note was not received by plaintiffs at maturity. It was protested. It has not been paid since. I think this note was received by the firm in June, 1841. The note was received in consideration for a settlement for those goods, the charges for which have been read in evidence.</p> <p>Question by defendants’ counsel: — Is there not a credit for that note in the books of Schoneman & Elfelt? Objected to, because the contents of an entry in a book cannot be given in evidence without notice to produce, and neglect or refusal — and because it is not a cross-examination. The court overruled the objection, and plaintiffs’ counsel excepted. The witness said: If this note is credited, I have no recollection of it. I presume it was, although I have not seen the account for a number of years. .He after-wards said, I do not know whether I gave a receipt for the amount of this note, or not.</p> <p>■ Question by plaintiffs’ counsel: — Did you usually give receipts for notes received ? Objected to: objection sustained, and plaintiffs’ counsel excepted. This was the second bill.</p> <p>He further said there were no goods bought when this note was received.</p> <p>The note in question was a note of J. & Gr. C. Van Horn, dated</p> <p>New Hope, June 11th, 1841.</p> <p>Six months after date, we or either of us promise to pay to the order of Fegley & Groff, two hundred dollars, at the New Hope Delaware Bridge Company, in Lambertsville, without defalcation, for value received. J. & Gr. C. Van Horn.</p> <p>Endorsed, Begley Groff — Schoneman $ Elfelt.</p> <p>Notarial certificate of a notary in New Jersey, as to the protest of the note on the 14th Dec. 1841, was received in evidence. It stated that he exhibited the note to Jonathan Fisk, cashier of the New Hope Delaware Bridge Company, and demanded payment, and received for answer that the drawer had no funds in his hands to pay said note, “ of which I notified the endorsers thereof by mail.”</p> <p>It was testified that Fegley & Groff did business at Port Jenkins, in Luzerne county — that Whites Haven was the nearest post-office — that during the year 1841, the firm dissolved and left there —that Fegley went to Mauch Chunk, and Hoff remained.</p> <p>The deposition of the notary was taken on commission, and he stated that he believed he sent the notice of protest to Eegley & Goff by mail, and that he believed he deposited the letter in the post office himself, and that he could not recollect the post-office to which he directed the letter, nor does it appear from an examination of the post-office transcripts that any letter, directed to Fegley & Goff, was sent to Mauch Chunk or Whites Haven on the day of the date of the protest, or for one or two days thereafter.</p> <p>Jones, J., charged, inter alia, that if the note was endorsed to plaintiffs in absolute satisfaction, they could not recover on the aecowrvtj and if received conditionally, plaintiffs were bound to show demand and notice of non-payment. The notary in this case is a foreign notary, and his protest is not evidence either of demand at the place designated for payment by the maker of the note, or of his own notarial act of sending notice of non-payment to the endorsers. These facts must be proved by other evidence. * * The certificate cannot be used to enlarge that other evidence.</p> <p>The notary, it seems to us, does not say in his deposition, that he made demand of payment of this note at the place mentioned on its face, at least not in that direct way it is wished he had done —though you will judge for yourselves as to that, &c. &c. Direct personal notice is not pretended; it is notice by mail that is alleged. Notice of this kind should appear with some degree of certainty in the proof of it. We should be informed positively where the notice was sent to, and when it was sent. Evidence of the deposit of a written notice in some post-office, to some other unascertained post-office, say the Supreme Court, 7 Barr 438, is too loose and unsatisfactory to satisfy the rule, which requires great certainty and dis-. tinctness of proof, to charge an endorser on the foot of a post-office notice. Where was the notice in this case sent ? There is nothing in the case to satisfy us as to that. Now, if the plaintiffs fail in either of these particulars — proof of demand or of notice — your verdict must be for the defendants. If you are satisfied that the proof establishes notice and demand, you will then consider how much the plaintiffs are entitled to recover.</p> <p>Yerdict for defendants.</p> <p>It was assigned for error:</p> <p>1. The court erred in admitting the evidence referred to in plaintiffs’ first bill of exceptions.</p> <p>2. The court erred in rejecting the evidence referred to in plaintiffs’ second bill of exceptions.</p> <p>3. The court erred in their charge to the jury: In what they say on the subject of the protest of the note and its evidence in the cause. Also, in what they say in regard to the notice of nonpayment. Also, in effect and substance, in taking the facts from the jury, and charging that plaintiffs could not recover for goods sold and delivered, for failure of evidence in regard to the notice and protest, as well as demand of payment.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>This was an action of debt, brought by John Boyer, sheriff, against Andrew Crawford, to recover the difference between a first and second sale of a house and ground in Norristown. Joseph T. Dill had been the owner of the property. On the 17th October, 1844, Dill mortgaged this property to Andrew Crawford, the plaintiff in error, for $1500, it being the first lien on the property. Dill raised various other sums of money, and gave judgments on this property, to secure the payment of the same, until the liens amounted to about $3300, -which it was supposed was about the value of the property. Whillden, one of the said judgment-creditors, issued process upon his judgment, amounting to $700, by virtue of which the sheriff levied upon and sold the premises. At the sale, the said Crawford become the purchaser, at his bid of $1500, and duly executed the conditions of sale, but afterwards refused to comply with the same, and filed exceptions to the sheriff’s sale, which were dismissed by the court, when other process was issued and the .property resold, at his risk. This suit was brought against him to recover the difference between-the two sales.</p> <p>It was'prescribed, in the conditions of sale, that the purchaser was to pay fifty dollars, when the premises are struck off, and the remainder of the purchase-money at a time fixed. If he neglects or refuses to comply with -the conditions of sale, the property will be resold, at his risk. Crawford signed the conditions of sale, acknowledging that the'premises were struck off to him, and binding himself to pay the sum of $1500 to Boyer, the sheriff. The property was returned as sold to Crawford, and conditions not complied with. The venditioni exponas, on which the premises were sold, was founded on a fi. fa., to February term, 1848, under which the inquest found that the profits of the premises were not sufficient to pay the debts within seven years; but the finding of the inquest was not approved of by the court.</p> <p>The sixty-first section of the act of 16th June, 1836, relating to executions, provides that, “ If the inquest shall find that the clear profits of any real estate levied as aforesaid, will not be sufficient to satisfy, within seven years, the debt or damages in such execution, and the same shall be approved of by the court, the plaintiff in such writ may have a writ of venditioni exponas, to sell such real estate,” &c.</p> <p>Exceptions were filed to the sale, that the levy and inquisition were defective and not as required by law; that Crawford held a mortgage which was the first lien for $1500, and bid that amount of it, in satisfaction of his mortgage, but that the sheriff refused to acknowledge a deed to him, unless he will pay that sum to the sheriff for the benefit of other creditors, which was contrary to his contract, as he understood it; and that the finding of the inquest had not been approved of by the court, as required by the act of 16th June, 1836.</p> <p>The court dismissed the exceptions, as follows: “As to the exception of having bought subject to a mortgage, that falls under the rule of caveat emptor. The other exceptions none but the defendant in the execution can make.</p> <p>The court instructed the jury that under the evidence, the plaintiff was entitled to recover the difference between the defendant’s bid at the first sale and the price given for the land at the second.</p> <p>Verdict for plaintiff for $1627 debt, with six cents costs.</p> <p>Various errors were assigned; one of which was as to the overruling the exceptions to the sale; and another, as to the instruction above referred to.</p>

<p>A grandfather cannot, by his will, appoint a guardian of the persons of his grandchildren in derogation of the right of the father, but he may devise an estate to them on condition that a certain person be their guardian, and he may commit the management of the estate to a person indicated in the will: and if there be a gift to the father in the will, and he submits to it, and enjoys the bequest, the Orphans' Court should not afterwards appoint a guardian, on his application, to the prejudice of the interests of his children.</p>

Error, to the District Court at Philadelphia. . A judgment was entered in the District Court in the name of Joseph Clegg against Philip Banks. Judgment entered, September 24, 1889, on bond and warrant of attorney. May 8, 1841, this judgment marked to the use of Francis Blackburne. July 20, 1843, this judgment marked to the use of John Taylor, junior. July 21, 1843, sei.fa. issued to revive the judgment.

<p>Where the object of offering entries in a book was not to prove a sale and delivery of goods, but as memoranda to identify the subject of them, where the question was as to whether the sale was conditional or absolute, and they were unbodied in the deposition of the witness who made and verified them, the entries were admissible in. evidence.</p>

This was an action of assumpsit, by Thomas Satterthwaite, and Joseph H. Satterthwaite, trading under the firm of Satterthwaite & Brother, against the Mutual Beneficial Insurance Association, on a policy of insurance on the personal effects of Satterthwaite & Brother, in the mills at Newportville, then in their occupancy.

This was an action of trespass on the case, to Oct. term, 1848, by Stromberg against John Babb, to recover damages for an alleged injury to the real estate of plaintiff by reason of the construction of a stable by defendant near the line of lands of plaintiff, so that its eaves overhung plaintiff’s ground, and the water flowed therefrom upon his garden. The defendant pleads not guilty.

An auditor was appointed, who reported, that the plaintiff in the said case claims the balance due on his judgment, after deducting the sum of $175 paid him by the defendant at different times.

This was an ejectment by the Commercial Bank of Pennsylvania against Robert Woodside and William Haggerty, for a lot of ground in the borough of Pottsville, on the south side of Market street, twenty-five feet from the corner of the Market square. The plaintiffs showed a perfect title to the lot in question, from John Pott, the proprietor of the town of Pottsville, and. who occupied the said town-plat, with other land, as a seated tract.

<p>1. In the ease of a proceeding by attachment under the 27th section of the act of 12th July, 1842, to abolish imprisonment for debt, where the justice had entered a non-suit on account of a copy of the attachment not having been served upon defendant, a bond given under the proviso to that section, is binding on the sureties of the plaintiff in the proceeding, even though the latter clause, as to failure in the action, has been omitted in it.</p> <p>2. Nor is such a bond void against, a surety of the plaintiff merely because the penalty to a small extent exceeds double the amount of the plaintiff's claim.</p> <p>8. Where such an attachment has been levied on property of the defendant therein, and a non-suit has been entered by the justice on account of defendant not having been served with a copy of the attachment, the condition of the bond of the plaintiff and his sureties is thereby broken, and the defendant in the original proceeding may recover upon it.</p> <p>4. It is not necessary that the principal in such a bond be first pursued, and his liability fixed, before a surety in the bond can be sued.</p> <p>5. In a suit on the bond by the defendant in the former proceeding against the surety in the bond, it is not error to refuse to permit the surety to show that the plaintiff in the suit trying obtained credit from the plaintiff in the former suit, by false representations as to his means of payment; nor in overruling an offer on part of the surety to prove that the plaintiff in the suit trying, had confessed judgments in favour of other creditors than the plaintiff in the former suit in which the bond was given, and had requested them to issue execution. Such evidence is irrelevant to the issue in the suit on the bond against the surety.</p> <p>6. A transcript of the docket entries of a justice of the peace as to a proceeding before him, proved by the justice, is admissible in evidence in a suit between the defendant in said proceeding, and a surety in a bond given in that case: though the docket is the best evidence, it need not be produced.</p> <p>7. Where a justice of the peace is offered as a witness to verify a transcript made by him, and he testifies that he was at the time of the proceeding a justice of the peace, no other evidence of his official character will be required: the court will take judicial notice of the fact.</p>

Appeal by tbe beirs of Henry Gangwere from tbe decree of tbe Orphans’ Court of Lehigh county.

Elijah Eunk and Joseph Pennypacker were executors of John Wolf Whisler, deceased. They inventoried the estate of their testator, which consisted chiefly of bonds and mortgages; and, on the 29th of Dec. 1821, filed their account, charging themselves with the whole amount of the inventory, and taking credit for debts paid, &c., showing a balance in their hands of $3768.69 for distribution among the legatees. The account was confirmed on Eeb. 4, 1822.

Error, to the District Court, Philadelphia. This was a suit by Joseph S. Riley against Dannaker, to be paid for the half of a party wall on the north side of a house, No. 139 N. Third street, Philadelphia. This party wall was not, originally, built by Riley, but was extended by him, during his ownership, via. during 1832.

This case came up from tbe Nisi Prius, Philadelphia. This was an action of ejectment by Lowber and Wilmer against Thomas and others, to recover possession of two lots of ground, one on the north side of George street, the other on the east side of Schuylkill Sixth street, Philadelphia.

In order to obtain the writ of error in this case, an affidavit was made as follows: “ C. Macalester, agent for the within named plaintiff, being duly sworn, saith that the writ of error in this case is not for the purpose of delay. . C. Macalester. “Sworn and subscribed before me, this third day of June, 1850. “J'.

This was an action of covenant, brought by James Biddle, surviving executor of the will of Charles Biddle, deceased, against Ebenezer Cobb, to recover the arrears of ground-rent and interest. The right of the plaintiff to recover or collect it was denied by Cobb.

This was an appeal by Abraham L. Pennock, and James Sellers from the decree of the Orphans’ Court of Delaware county, in the matter of the sale of the real estate late of Abram Powell, deceased, for payment of debts. Nov. 27, 1849, the said Orphans’ Court granted an order to Elizabeth Powell, John B. Powell, and Joseph Powell, administrators of the said Abram Powell, deceased, to make sale of the real estate of said deceased, for the purpose of the payment of debts.

<p>Appeal from the decree of the Orphans’ Court of Lehigh county.</p> <p>This was an appeal by Stephen Balliet, Jr., and Paul Balliet, from the decree of distribution on the account of Stephen and Paul Balliet, executors of the will of Paul Balliet, deceased.</p> <p>Paul Balliet, of the township of North Whitehall, in the county of Lehigh, in his will, devised to his wife Elizabeth, in lieu of dower, his house and lot in North Whitehall township, &c. to hold to her during her widowhood; .also, all his household goods; and he directed that certain hay, rye, wheat, &c. be furnished to her annually, at the proper season, during her widowhood, by Stephen Balliet, Jr., and Paul Balliet, and hereby made a charge upon the messuage, tenement and tract of land hereinafter devised to them. And he also bequeathed to her the interest accruing on five thousand dollars to be paid to her at different times during her widowhood, by the said Stephen Balliet, Jr., and Paul Balliet, and hereby charged on the messuage, tenement and tract of land hereinafter devised to them.</p> <p>He also bequeathed the sum of $5000 to the six children of his sister Maria Catharine, deceased; 2d, to the issue of his brother Stephen, to be equally divided between them, the sum of $5000; 3d, to his sister Susanna, or her issue, $5000; 4th, to his sister-Eve, $5000 ; and 5th, to the issue of his brother John, the sum of $5000 ; all payable as hereinafter specified.</p> <p>6th item: I give and bequeath to the issue of my sister Magdalena, deceased, who was intermarried with Christian Troxsell, deceased, the sum of five thousand dollars, to be paid on the following conditions, and in the following manner: First, the sum of fifty dollars for each and every year which Jesse Troxsell may have kept the said Magdalena, his mother, and a proportional sum for any period less than a year, (the time to be ascertained by the arbitrators hereinafter named, in case of dispute,) shall be deducted from the said five thousand dollars and paid to the said Jesse, and the residue thereof shall be paid to the issue of the said Magdalena (including the said Jesse) in equal parts or portions, at the time hereinafter specified.</p> <p>Item, I give and devise all that my messuage, tenement or tract of land situate in the township of North Whitehall, in the county of Lehigh, adjoining lands of Stephen Balliet, late Peter Butz, Jonas Troxsell and others, containing two hundred and sixty acres, more or less, with the appurtenances, to the said Stephen Balliet, Jr., and Paul Balliet, (sons of my nephew Stephen Balliet,) their heirs and assigns forever as tenants in common and not as joint tenants, charged and chargeable nevertheless with the furnishing, delivering and payment yearly of the articles and interest herein-before bequeathed to my said wife, and the sum of thirty thousand dollars, hereinbefore,bequeathed to my sister and the issue of my deceased brothers and sisters, to be paid as follows, viz.: twenty-five thousand dollars thereof to be paid in six equal yearly payments, of four thousand one hundred and sixty-six dollars and sixty-seven cents ($4166.67) each, the first thereof to be made at the end of one year next after my decease to the issue of my eldest sister deceased, and the next equal yearly paymeut to be made to the issue of my eldest brother deceased, and so on in the order of the births of my said brothers and sisters till the sum of twenty-five thousand dollars ($25,000) be paid. The remaining sum of five thousand dollars ($5000) to be paid at the termination of my wife’s widowhood or at her decease.</p> <p>And further, I do give and devise my house and lot whereon I now reside, hereinbefore given to my said wife to hold to her during her widowhood, from and after the termination of her widowhood, to the said Stephen Balliet, Jr., and Paul Balliet, their heirs and assigns for ever, as tenants in common, and my undivided third part of a certain messuage, tenement, and tract of land situate in South Whitehall township, adjoining lands of Peter Moyer and others, containing one hundred and thirty acres, more or less, with the appurtenances and my undivided moiety of a certain tract of woodland, situate in North Whitehall township, adjoining lands of James Deshler and others, containing thirty-three acres more or less, with the appurtenances, and my undivided third part of a certain piece of woodland, situate in North Whitehall township, adjoining lands of late George Semmel, containing six acres more or less, with the appurtenances, and my bank stock and all the rest, residue and remainder of my estate, effects, and property of whatsoever kind and wheresoever situate, I give and devise to the said Stephen Balliet, Jr., and Paul Balliet, and their heirs and assigns for ever, to be equally divided between them: Provided, nevertheless, and my will expressly is, that in case the residue of my personal estate shall exceed the sum of twenty thousand dollars, the excess or overplus — above twenty thousand dollars — shall be rateably applied to the six legacies of five thousand dollars each, hereinbefore given to my sister and the issue of my deceased brothers and sisters.</p> <p>Item, it is my will and desire that none of the legacies herein bequeathed shall lapse, but in case any legatee, whether herein named as such or described as such, is now dead, or shall hereafter die, before the legacy or share of a legacy herein given or limited shall become payable, that such legacy or share of a legacy shall be deemed vested in the issue of such deceased legatee, which issue shall take, by representation of their parents respectively, such share as their parents would have taken if living.</p> <p>He appointed Stephen Balliet, Jr., and Paul Balliet, executors. The testator died February 17, 1845. His will was proved on 21st February, 1845, and letters testamentary granted to Stephen and Paul Balliet. His wife died before him. After the making of the will, the testator sold and conveyed all his real estate, viz. part to one Semmels, for $214.37, viz. 6 acres of woodland; part to Peter Moyer, for $2373.07f, viz. the one-third of 130 acres in South Whitehall township; and 350 acres to Stephen and Paul Balliet, for the consideration of $10,000. This tract embraced all the land devised to them by the will, except what had been conveyed by the two preceding deeds.</p> <p>By the change thus made, the testator was not seized of any real estate at the time of his death. He held securities for the land sold and conveyed to Peter Moyer to the amount of about $2500, and for the lands sold and conveyed to Daniel Semmels, to the amount of $71.46; and for the land sold and conveyed to Stephen Balliet, Jr., and Paul Balliet to the amount of $10,000, payable as per the inventory and account, and other personal estate as per said inventory and account.</p> <p>Before the testator’s death, suits had been brought against the Directors of the Northampton Bank, of whom he had been one, for alleged over issues, two of which suits had been arbitrated, in one an award was made for plaintiff of $6995, and in the other for $4425, and from the awards he and the other directors summoned .had appealed. He died before the cause could come on for trial. The suits are still depending.</p> <p>• The testator, when he made his will, owned and held two hundred and thirty shares of stock in the Northampton Bank, on which $50 per share had been paid. They were then somewhat depreciated. On the 22d of September, 1843, and from thence till his death and since, the shares were of no value, in consequence of the final failure of the institution in the spring of 1843.</p> <p>The account of the executors was filed in March, 1846. It was referred to auditors, who reported a distribution of the balance of $26,988.43, among the legatees, viz. to the issue of Maria Deshler, of Stephen Balliet, deceased, of Susanna Baer, of Eve N. Saeger, of John Balliet, and of Magdalena Troxsell, each $4498.07*1, amounting to $25,988.43.</p> <p>They submitted to the court the matter of the suits depending for over issues, and how far distribution should be made, until the determination of those suits.</p> <p>In the account thus audited, the executors charged themselves with the outstanding notes and bonds, calculating them at their then present value, and including the unpaid bonds of Stephen Balliet, Jr., and Paul Balliet, Jr., given for part of the said consideration money of $10,000.</p> <p>This report was confirmed nisi.</p> <p>On the 3d of December, 1846, exceptions to the distribution were filed, on behalf of Stephen Balliet, Jr., and Paul Balliet, Jr., the accountants and two of the legatees, verified by affidavit :</p> <p>1. That the auditors erred in not awarding to the accountants, who are devisees and legatees of the testator, the sum of $2672.69J, due on Peter Moyer’s bond, and $80.40, due on Daniel Semmel’s bond, being the proceeds of land devised by the testator to the</p> <p>..accountants, but sold in his lifetime.</p> <p>2. That if the allowance mentioned in the first exception is not according to the correct construction of the will, then the sum of $20,000 should have been first distributed to the accountants as devisees and legatees, before any distribution was made to the other legatees, under the changes of the testator’s estate, which had taken place between the making of his will and his decease.</p> <p>3. That the distribution is erroneous in other respects.</p> <p>Other exceptions were filed on the part of other legatees, one of which was to the distribution in favor of the other legatees, except Susanna Baer. *</p> <p>In September, 1848, the court set aside the report of the auditors, and decreed distribution of the balance as in case of intestacy.</p> <p>From this decree, Stephen Balliet, Jr., and Paul Balliet appealed.</p> <p>It was assigned for error:</p> <p>1. The Orphans’ Court erred in decreeing distribution of the balance, as in case of intestacy, to and among the next of kin, and should have decreed $20,000 of the said balance to Stephen Balliet, Jr., and Paul Balliet, as given to them by the will of the testator.</p> <p>2. That if the said sum of $20,000, under the will of the testator, and the changes which had taken place in regard to his real estate, between the making of his will and his death, is not decreed</p> <p>. to the said Stephen Balliet, Jr., and Paul Balliet, they are entitled to the sum of $2672.69J due on Peter Moyer’s bond, and $80.40|-due on Daniel Semmel’s bond, those securities having been taken for land devised to the said Stephen Balliet, Jr., and Paul Balliet, and sold and conveyed by the testator to the said Moyer and Semmel in his lifetime.</p> <p>3. That the Orphans’ Court erred in deciding that the will of the testator was revoked in toto by the conveyances of the testator’s real estate, the said conveyances being only a revocation of the same so far as the devises of the said real estate and the legacies charged thereon were concerned, and did not affect any of the remaining provisions of the will disposing of" the téstator’s personal estate.</p>

On the 21st day of August, 1846, the petition of Jacob Grress, of Covington, township, Luzerne county, verified by affidavit, was presented, setting forth, that on the 1st day of Dec. 1820, the said Orphans’ Court, on the petition of Christian Miller, had appointed Henry Eenner guardian of the person and estate of Susan Umfert, a minor, under the age of fourteen years; that, as such guardian, the said Henry Fenner had received, as the property of his ward, two certain notes,…

This ease was from the Nisi Prius, Philadelphia. It was an action brought by John J. Brown, as endorsee of Stephen Cummings, against Enoch W. Clark, as one of the firm of Mudge & Clark, upon a promissory note, of which the following is a copy: The date of the note in question, is October 24, 1886, at six months, and is in the following words and figures:— “ $1500. Portland, October 24,1836.

This was a suit brought by the Kensington Bank against Robert Patton. On the 11th January, A. d. 1841, the defendant made his promissory note for $100, payable at ninety days, to the order of John Telford, who endorsed it to the plaintiff; the note was payable on the 14th day of April, 1841; and on the 28th day of April, 1847, or six years and seventeen days after the right of action commenceu the suit was brought.

This was an action brought by F. Lennig, the defendant in error, against S. & C. S. Tobey, as endorsers on the following note, viz: “ $727.08. Philadelphia, January 22, 1846. Four months after date, we promise to pay Messrs. S. & C. S. Tobey, or order, seven hundred and twenty-seven dollars, without defalcation, value received. Signed, Thos. Mercer, Son & Co.” (Endorsed, 8.

A certiorari issued to the Common Pleas to remove the proceedings in the case of the contested election of George Carpenter to the office… Held: and such complaint shall not be valid, nor regarded by the court, unless the same shall have been filed in the prothonotary’s office within ten days after the election ; and in case such complaint is filed within the time above mentioned, it shall be the duty of the prothonotary to transmit by mail immediately, to the Governor, a…

<p>1. A deed and declaration of trust made at the same time are to be treated as one transaction.</p> <p>2. When a gift of real and personal estate is executed or otherwise fixed in the beneficiary, either by a direct conveyance of the estate or the creation of an use, it is beyond the power of the donor or his representative to revoke it. If fairly made and carried into effect, uninfluenced by fraud or circumvention, it cannot be subsequently impeached.</p> <p>3. A voluntary conveyance of real estate made by one not indebted, or who reserves sufficient to pay his existing debts, cannot be impeached by subsequent creditors, unless it were made in anticipation of future indebtedness.</p> <p>4. The difference between a deed and a will is not in the form but effect of the instrument; which, if it convey an estate in presentí, cannot be a will, for that operates only in futuro.</p> <p>5. 'l'he general rule is that a party executing a legal instrument is presumed to be acquainted with its contents. Where it is unconnected with suspicious circumstances and uninfluenced, actually or presumptively, by the relation between the maker of it and the party to be benefited by it, the burden of disproving the presumption lies on him who would impeach the deed.</p> <p>6. A provision in a voluntary deed in favor of the counsel who drew or advised it, for his services to be performed as a trustee under it, with the further provision that the said trustee may resign the trust to the other trustees without forfeiting the compensation, is void, at least unless it be proved that the grantor knew of the particular provisions, and, -without influence from those interested, assented to them. If a doubt exists in this respect, the provision for compensation is invalid; and the provision in favor of the other trustees who acted in the arrangement of the matter, through the counsel, or in connection with him, is also invalid. The trustees may, however, be decreed compensation by the proper tribunal.</p> <p>7. The invalidity of the provision in favor of the trustees does not invalidate the trust in other respects, which are distinct and separate from the interests of the trustees.</p> <p>8. Where, by the terms of the instrument by which the trust is created, the trust is to include whatever of the income and profits from the estate are unappropriated by the grantor at her death, the administrator of the estate of the grantor is not entitled to the unexpended balance of the income and profits.</p>

<p>1. When property in goods levied on by a constable, is claimed by another than the defendant, the constable is not bound to proceed to the further execution of the writ without sufficient indemnity; but having demanded and accepted indemnity, he must proceed, and rely on his bond for indemnity.</p> <p>2. The measure of damages in such an action is the value of the property, when it does not equal the amount of the debt.</p> <p>3. Whenever the defect in a declaration is such as is amendable by leave of' court, it is cured by the verdict. A neglect to aver in the declaration, in a suit against a constable for not executing an execution, that the alderman had jurisdiction of the case in which the execution was issued, is a defect merely inform,, which might have been amended.</p>

<p>Error to the Common Pleas of Bucles county.</p> <p>This was ail action of trespass quare clausum fregit brought to February term, 1849, by Trauger and Campbell, trustees of the Lutheran Church of Nockamixon, against Sassaman and others, for the erection of a wall and cutting some trees in a grove or vacant space in front of the church above referred to. Testimony was given to the effect that the ground in question had been occupied by the Lutheran and a German Reformed congregation for more than seventy, years. The two congregations worshipped in the same church. The ground was used for hitching horses and placing carriages by those attending church, and in attending at funerals. The defendants enclosed the premises by a wall, and cut some trees upon it. The trustees showed no conveyance of the premises, but relied on a possession for above twenty-one years, and claimed for above that period an exclusive possession.</p> <p>The defendants claimed under a patent from the Penns, and conveyances down to Lawrence Pearson, who by his will, dated in 1801, and proved 12th April, 1808, directed all his lands (on the part of defendants, alleged to include the ground in question) to be sold at public sale, by the executors of his will, after the death of his widow. The defendants offered in evidence a deed from the executors of Lawrence Pearson to the heirs of the said Pearson, for the locus in quo, dated Tth August, 1821, and recorded 5th April, 1828. It did not appear from the face of the deed, that the sale was a public one, nor was it shown by extrinsic evidence that such was the case. The habendum in the deed being “ to the heirs of Lawrence Pearson, deceased, and their heirs for ever, for the entire use of said heirs, for shade and hitching their horses, &c., when convenient.”</p> <p>Plaintiffs objected to this deed. Objection overruled, and plaintiffs excepted.</p> <p>Defendants claimed as or under heirs of Pearson.</p> <p>On the part of defendants, testimony was given that Pearson’s heirs and both congregations used the ground in common, since 1815; that it cannot be used since the erection of the wall, as it was used before; that no attempt was made to drive away Pearson’s heirs before the wall was built; that the heirs frequently go to the German Reformed church, and sometimes to the Lutheran church.</p> <p>On part of plaintiffs, it was offered to prove, that the Lutherans purchased a graveyard, and offered half to the German Reformed party. Objected to, rejected, and exception on part of plaintiffs.</p> <p>The part of the will of Lawrence Pearson which is material in this case, is as follows:</p> <p>“ And it is my will, if my said wife should survive me, that my executors shall rent the messuages or tenements and plantation situate in the said township of Nockamixon, whereon I now live, and the rent thereof to be applied to, and made use of, for the maintenance, &c., of my said wife in a comfortable manner during her natural life, in lieu of her dower; also, it is my will that if my said wife should survive me, that immediately after her decease, or should I survive her, that after my decease, that my executors, or the survivor of them, do, as soon as may be advisable and prudent for them or him so to do, to sell at public sale or vendue, all my lands and tenements of which I may be lawfully seized at the time of my death. First giving due and timely notice hereof by printed handbill or advertisement, setting forth the time and place of said sale,” &c.</p> <p>On the part of plaintiff, various points were proposed, the second of which was—</p> <p>That if the plaintiffs, in common with the other congregation, and in common with persons claiming to be the heirs of Lawrence Pearson, have mutually used and occupied the property in dispute for a common purpose, for a period of twenty-one years and up-words, they are entitled to recover.</p> <p>3d. That if the plaintiffs used and occupied the locus in quo, together with the members of the German Reformed church upwards of twenty-one years previous to the deed made by the executors of Pearson to the heirs of Pearson, and from that time down to the time of committing the alleged trespass, they are entitled to recover in this action.</p> <p>4th. That the deed to the heirs being for a special purpose, they had no power or right to transfer or devote it to any other purpose or use, than that mentioned in their deed.</p> <p>5th. That a grant of the right to use this property for hitching horses, may be presumed to be made to the plaintiffs from the free and undisturbed possesion of it for a period of twenty-one years, together with the evidence of their having contributed to the repairs of that part of the grove connected with and adjoining the locus in quo.</p> <p>Krause, J., in relation to the second point, charged that for the interruption of an easement, an action of trespass cannot be maintained. As to the third point, he charged, that if the possession was held by plaintiffs in common with the heirs of Pearson, and the heirs had the title, the law was otherwise than as stated in the point. To the fourth, that if some of the heirs of Pearson are defendants in the case, the plaintiffs have no right to complain of the property being devoted to a different purpose from that stated in the deed. As to the fifth, that if the plaintiffs have no more than an easement, they cannot recover in this action, and must resort to some other remedy.</p> <p>Yerdict for defendants.</p> <p>It was assigned for error:</p> <p>1. The court erred in receiving in evidence the deed from the executors of Pearson to his heirs.</p> <p>2. The court erred in rejecting evidence to prove that the Lutheran congregation purchased a graveyard and offered half of it to the German Reformed.</p> <p>3. The court erred in their answers to the several propositions made by the counsel for plaintiffs.</p> <p>The case was argued by Wright and Du Bois, for plaintiffs in error, who were plaintiffs below. — The power in the will of Pearson was to sell at public sale, and a private sale, under such a power, is void: 7 Barr 87.</p> <p>The evidence to prove that we had offered to divide the lot purchased for a graveyard, was to show that there existed no necessity for enclosing the ground which the defendants alleged was necessary for that purpose.</p> <p>That plaintiffs below were entitled to the premises by possession: 3 Ser. & R. 511; 2 Whar. 427; 8 Watts 51; 7 Barr 473; 1 Whar. 124 ; 2 Saun. Ev. 867 ; 3 Burr. 1824; 5 East 480; 5 Term Rep. 333.</p>

<p>1. A vendee who under the terms of his deed has a covenant against encumbrances which were known to him, and a covenant for quiet enjoyment, cannot withhold the purchase-money as a further security against them; a purchaser of a lot on ground-rent is within the rule, and is bound to pay the ground-rent though the encumbrances by mortgage are not satisfied, and though the lot is vacant and unproductive.</p> <p>2. Where the vendor had agreed to advance to the vendee, in order to build on the premises sold, in consideration of which, the rent was to be increased, and ho failed to make the advancement, the vendee may defend to the extent of the increased rent; and the assignee of the rent having notice before acceptance of the deed of assignment and payment of the consideration to the vendor, will be affected by the omission of the latter to make thé advancement.</p> <p>3. The recording of a deed is but evidence of delivery, and it is not conclusive ; the vendee may reject the deed, though it be recorded, if not previously accepted.</p> <p>4. If an assignee of ground-rent receive notice from the purchaser of the land which is subject to the ground-rent, of an equitable defence to the payment of the rent after the assignee had made partial payments to the vendor, but before payment of the whole purchase-money, the assignee will be affected by the notice. If the whole purchase-money be paid by the assignee before notice, the latter will be protected for the whole; if but part be paid, he will be protected only to that extent, and a proportionate abatement of the rent will be made for the residue.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This-was an amicable action in case, in which the Philadelphia Bank was plaintiff, and Garret Newkirk and Stephen S. New-kirk, trading under the firm of G. Newkirk & Son, were defendants. G. Newkirk was the surviving partner, and dying, Smith (it was said on the record) was substituted for Isaac Dunton, the executor of his will. He had been appointed executor, but had not acted.</p> <p>The action was brought to recover $2111.98, less the sum of $500, which the plantiff admits has been paid, with interest on the balance.</p> <p>The narr. contained seven counts:</p> <p>1st count. — On a promissory note, dated March 13th, 1839, drawn by Baird & Farrel in favor of Heberton & Hibler, payable in twelve months at the Bank of the State of Missouri, at St. Louis, current rate of exchange to be added. Amount of note, ■$2111.98. Endorsed by Heberton & Hibler and G. Newkirk & Son.</p> <p>2d count. — On a note of the same description, but without the words “current rate of exchange to be added.”</p> <p>3d count. — On a note of the same description, but omitting the words “payable at the Bank of the State of Missouri,” and also the words “current rate of exchange to be added.”</p> <p>4th count alleged that the defendants, in consideration that the plaintiffs, at their special instance and request, would lend to Heberton & Hibler the sum-of $2111.98, on the security of a promissory note such as described in the first count, promised to pay the said sum of money in case of the non-payment thereof by the said Heberton & Hibler and the said Baird & Farrel.</p> <p>5th count alleged, that whereas Heberton & Hibler were indebted to the plaintiffs in the sum of $2111.98 for money loaned, that in consideration of the same, and that plaintiffs would receive a draft drawn by Heberton & Hibler, dated March 30th, 1840, for the sum of $2111.98 in favor of defendants, and by them endorsed — said draft drawn on Baird & Barrel, merchants of St. Louis — and would forbear and give time for the payment of said sum of money, said defendants undertook and promised to pay said sum of money in case of the non-payment of the same by Baird & Barrel or Heberton & Hibler; the payment to be in current funds.</p> <p>6th count. — Corresponding with the preceding count in all respects, except that it omits the words “in funds current at St. Louis.”</p> <p>7th count. — Common count — money lent and advanced.</p> <p>The defendants pleaded non-assumpsit — payment—set-off, with leave to add, alter and amend — and also special pleas, as follows:</p> <p>1. That said note being payable at the Bank of the State of Missouri, which bank at the time of the drawing received current</p> <p>funds in payment of notes falling due there — the said bank, before the maturity of the note, resolved to receive only specie, or its own notes in such payments — of which resolution plaintiffs had notice, and thereupon undertook and agreed, at the request of defendants, to deposit said note elsewhere for collection, but neglected so to do — by reason whereof, current funds being tendered in payment, were refused, and the note protested.</p> <p>2. Tender.</p> <p>Plaintiff’s counsel offered in evidence the following note:</p> <p>“$2111.98 Philadelphia, 13í7¿ March, Í839.</p> <p>“ Twelve months after date, we promise to pay to the order of Heberton & Hibler twenty-one hundred and eleven dollars -j9^ without defalcation for value received, payable at the Bank of the State of Missouri at St. Louis, (current rate of exchange to be¡ added.) [Drawn) Baird & Barrel,</p> <p>(Endorsed) Heberton & Hibler,</p> <p>Do. G-. Newkirk & Son.”</p> <p>Also the following draft:</p> <p>“$2111.98. Philadelphia, March 30th, 1840.</p> <p>“ At one day’s sight, please pay to the order of Messrs. Garret Newkirk & Son, at the Perpetual Gas Light Insurance Office, in current funds, twenty-one hundred and eleven dollars, being the amount of your note attached hereto.</p> <p>Heberton & Hibler, (Endorsed) G. Newkirk & Son.</p> <p>“ Messrs. Baird & Barrel, Merchants, St. Louis.”</p> <p>Plaintiff’s counsel then admitted the receipt by plaintiff of $500 on account of their claim, and exhibited a receipt for the same, dated June 13, 1841.</p> <p>Plaintiff’s counsel then offered as a witness J. B. Trevor, who, being affirmed, said:</p> <p>I am cashier of the Philadelphia Bank, and was so in 1839 and 1840. (Being shown the note, he said) This note was discounted by the bank for Heberton & Hibler, in November, 1839, near the beginning of the month. It was discounted on the faith of the endorsement by Gr. Newkirk & Son. It would not have been discounted on the credit of Heberton & Hibler alone, without another satisfactory endorsement. We knew nothing about the drawers. It was returned protested from the Bank of the State of Missouri, to whom, as our correspondent, the note had been sent for collection. After its return, one of the firm of Heberton & Hibler called at the bank and stated that the parties in St. Louis would pay the note in current funds, if sent on again. The bank agreed to return the note with a draft drawn by the same parties for a similar amount at one day’s sight on the drawers of the note. The draft was sent on to our correspondent, the Perpetual Insurance Company of St. Louis, for collection. It was returned protested. We agreed to indulge the parties to the note until we could make another trial by sending the draft to St. Louis. By indulge, I mean we agreed not to sue.</p> <p>Being cross-examined:</p> <p>The bank in discounting deducted interest and a certain amount of exchange. The amount of the exchange deducted was greater than the difference of exchange between a specie-paying and a non-speeie-paying place.</p> <p>The plaintiff having closed his case, the defendant moved for a nonsuit, on the ground that the evidence offered by plaintiff would not sustain a recovery under any count of the declaration.</p> <p>The judge refused to nonsuit the plaintiff, whereupon the defendant then and there excepted.</p> <p>Defendant’s counsel, to maintain the issue on their part, then offered the following evidence.</p> <p>J. B. Trevor — before sworn for plaintiff, and now recalled by the defendant — says: Neither of the firm of Newkirk & Son were at the bank when the proposal for discount was made. I think Mr. Hibler presented the note for discount: Mr. Hibler brought the note with one or two more, to get a discount. It was the understanding of the parties that the note was to be paid in funds current at St. Louis. At that time, I presume, the notes of the Bank of the State of Missouri were current there; also, notes of the banks of adjoining States. The banks had suspended specie payments. The amount of discount was this : we took off the interest for the time the note had to run, and seven per cent, exchange. The total amount deducted was $193.25.</p> <p>He further said, inter alia, no money was furnished by the bank when the draft was drawn. The note was discounted for Heberton & Hibler. The bank paid no money to Newkirk & Son. Their name was on the note when originally presented for discount.</p> <p>On tbe part of tbe defendant, Earrel, one of tbe drawers of tbe note, was offered, and a release by defendant to him was tendered to him. Objected to on part of plaintiff, that he was one of the drawers of the note. Objection overruled, and exception on part of plaintiff. He stated, inter alia, that the firm of Baird & Earrel,' then doing business in St. Louis, received a notice from the Bank ’ of the State of Missouri, and at the maturity of the note that he tendered such funds as were then current in St. Louis, such as those of banks of Illinois, Indiana, and Kentucky, in payment, with the addition of the exchange on Philadelphia. They said they did not take those funds in payment, and refused them. That the firm continued to pay responsibilities for some time, but subsequently stopped payment. * * * Don’t think we had any notes in 1839 that we did not pay.</p> <p>It was testified by the teller of the bank, that the Bank of the State of Missouri, on the 12th November, 1839, adopted a resolution exacting the payment of all sums due or becoming due at said bank on such notes in specie or its own paper, that the resolution was made public on that day, and was acted on till the 1st March, 1841; and that the Bank of the State of Missouri notified all who had deposited notes for collection, both banks and individuals, that the bank would not collect for them, except in conformity to resolution of 12th November, 1839; and the result was, that in almost every instance, the collection paper maturing was transferred to other institutions.</p> <p>The note in suit was protested on 16th March, 1840. Othér testimony being given, defendants’ counsel offered William Worrell, who testified, that he was a director 4n the Philadelphia Bank in 1839 and 1840. That “ Garret Newkirk called on me, in February or the beginning of March, 1840, to have some notes transferred from the Bank of the State of Missouri to some other institution for collection, giving for reason, that that bank would receive only specie or its equivalent for notes left there for collection. I called on the president on the subject, and stated Mr. Newkirk’s wish. The notes referred to were the one in suit and a note of Dyer.”</p> <p>Jones, J., in his charge, stated that the note vras endorsed by Heberton’ & Ilibler, and afterwards by C. Newkirk & Son for- the accommodation of Heberton & Hibler ; and he put the case to the jury on the fifth count, saying that there was not evidence to support the other counts.</p> <p>See assignments of error.</p> <p>Yerdict for plaintiff, for $2214.94 damages.</p> <p>It was assigned for error:</p> <p>1. The court erred in charging the jury that a sufficient consideration was alleged in the fifth count of the declaration to sustain a recovery, if such consideration were proven to the satisfaction of the jury. And,</p> <p>2. In not charging the jury that a recovery could not be sustained under any count of the declaration.</p> <p>3. The court erred in charging the jury that the averment in said fifth count, that Heberton & Hibler were indebted to plaintiff for money loaned at the time of the drawing of the draft of March 30th, 1840, was sustained by the evidence, and that such indebtedness, accompanied by an agreement to forbear suit on the note of March 13th, 1839, was a sufficient consideration in law to sustain the promise alleged in said count.</p> <p>4. And in not charging the jury that there was no consideration whatever for the draft, and no evidence of any agreement to forbear suit.</p> <p>5. The judge erred in refusing to charge the jury, that both by the neglect of the bank to transfer the note from the Bank of the State of Missouri to an institution where “ current funds” would be received, as they had agreed to do, and by the actual tender of “ current funds” by the drawers of the note, and their refusal, the endorsers were for ever discharged, so that no consideration whatever could exist for the draft.</p> <p>6. And in not charging the jury that neither the draft nor" the note were negotiable instruments, and that neither of them created a responsibility in the endorsers.</p> <p>The case was argued by Ouyler, for Smith, plaintiff in error.— He alleged that Newkirk & Son endorsed the note for the accommodation of Heberton & Hibler. He contended that the note was not negotiable, and hence the endorsement created no liability. That the note contained the words “ current rate of exchange to be added;” that thus it was not for a sum certain, which was an essential property of a negotiable note: Chitty on Bills 153; 2 Miles 442, a decision on this note. A note payable in current funds is not negotiable: 10 Ser. & R. 94; 4 Watts 400; or one payable in foreign bills: 4 Mass. 245; 6 id. 188.</p> <p>But the drawers made a lawful tender, and the tender and refusal exonerated the endorsers: 5 Watts 262.</p> <p>The endorsement of the draft created no liability; no money was furnished at the time, and the draft was not negotiable. The attending circumstances, however they may affect Heberton & Hibler, created no liability as to Newkirk and Son. They never communicated with the bank in relation to the draft. As the tender and refusal discharged the endorsers, there was no consideration on which to found a liability as to them. Forbearance, where there is no right of action, is not a consideration for a promise to pay.</p>

<p>1. An administrator who has had real estate purchased in for him, when sold on a judgment entered at his instance on a bond in favor of his intestate, and who advances only the costs of the proceeding, the purchase-money being credited on the judgment, is chargeable with a proportion of the amount of the re-sale by him of the premises, in favor of such of the heirs of the intestate as have not confirmed his purchase.</p> <p>2. The administrator is not entitled to commissions on such re-sale as against the heirs from whom the proceedings were concealed: he is however entitled to credit for a reasonable fee paid to the counsel who conducted the proceeding on the judgment.</p> <p>3. Though an auditor appointed by the court to audit and. settle an administration account also reported a distribution of the fund, which part of the report was set aside, the court may decree distribution on the facts reported by him.</p> <p>4. In the distribution of an intestate father’s estate, the statute of limitations may be interposed by the children to claims on simple contract, which were due by them to their father.</p> <p>5. Where an individual conveys his interest in land to a trustee for payment of certain creditors, and the balance to his wife: Held, that after the lapse of more than twenty-two years the law will presume the debts to have been paid and the trust executed, so far as respects the creditors.</p>

<p>Error to the Common Pleas of Bucles county.</p> <p>This was an action of ejectment brought by Anthony Fly against William Heacock, John Alshouse and Susanna Alshouse his wife.</p> <p>John Alshouse died after judgment was entered in the court below, but before this writ of error was sued out; and his death was suggested upon the record in the court below before this writ was issued. The material facts of the case appear in the special verdict, which is stated in the opinion of his honor Justice Burnside.</p> <p>The case was tried before Krause, J., by whom judgment was entered in favor of the plaintiff.'</p> <p>It was assigned for error, that the court erred in entering judgment on the special verdict in favor of the plaintiff, when it should have been entered in favor of the defendants.</p>

<p>Error to the Common Pleas of Sehuylhill county.</p> <p>This was an action on the case, brought by the borough of Potts-ville against the township of Norwegian, to recover half the cost of a bridge built on a public road, over a creek, which is the dividing line between the borough of Pottsville and Norwegian township.</p> <p>The plaintiff, on the trial of the cause, gave evidence proving that the road is one of the great thoroughfares to and from the borough of Pottsville; and that there had been a public road and bridge in the same place, over the creek, for more than twenty-one years; and that in the year 1831, a State road from Pottsville to Mauch Chunk had been laid out on the site of the old road, and over the bridge that was then standing over the creek. In the year 1846, this bridge, which was built, like the common canal-bridges, of wood, the timbers resting on log abutments, having become ruinous and dangerous for travelling, the town council of the borough of Pottsville undertook the repair of it. Upon examination, the old bridge was found to be so much decayed, and the travelling over the road so great, that a stone bridge was required as well for safety as economy. The old bridge was therefore removed by the town council of the borough of Pottsville, and a substantial stone bridge, such as the public convenience and safety required, erected in its place. The amount paid for building the bridge was $1320.</p> <p>Evidence was given that one of the supervisors of Norwegian township had been consulted, and that he had concurred in opinion with the borough authorities that a stone bridge was necessary, and that he did not object to the building of it.</p> <p>Kidder, J., after adverting to the facts of the case, charged the jury that the plaintiff could not recover. The bridge erected was a new structure, and so far as relates to the expenditure of money on the part of Norwegian township, required the action and deliberation of both supervisors. It appears that but one of them, William Robinson, was consulted. We do not learn that Fox, the other supervisor, had any knowledge of the transaction. The principle decided in 8 Watts 125 rules this case, and we direct a verdict for the defendant.</p> <p>Plaintiff excepted to the charge of the court, and asked that the same, may be filed.</p> <p>March 23, 1849, verdict for defendant.</p> <p>See sections 10 and 34 of act of June 13, 1836, relating to roads, highways, and bridges.</p> <p>It was assigned for error:</p> <p>That the court erred in charging the jury that the plaintiff could not recover.</p>