Volume 14 — Sergeant & Rawle's Pennsylvania Reports

<p>' By the erection of Fairmount dam-, in the river Schuylkill, a rock just below the dam, that had formerly been private property, and above low water mark, became surrounded at all times by water, and was dry only at low tide, and a few hours before and after: held, that it still remained the property of the former owner, and that it was not common property, where all persons might stand and fish with hoop nets.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Montgomery county, in which the plaintiff below was the plaintiff in error.</p> <p>The suit was a scire facias to revive a judgment brought by Thomas P. Cope, against David Humphreys, Owen Humphreys, and Thomas Humphreys, administrators of Thomas Humphreys, deceased. The original judgment was recovered on the 9th of April, 1800, by Thomas P. Cope, against Thomas, David, and Owen Humphreys, for seven hundred and thirty-four pounds, four shillings and eleven pence. A scire facias against the present defendants was issued on the 13th of 'August, 1822, to August Term, 1S22, which was returned “nihil.” An alias scire facias was issued on the 21st of August, 1822, to November Term, 1822, the return to which was, “ made known to Thomas Humphreys and David Humphreys, and, as to Owen Humphreys, nihil ha-bet.” A special appearance was marked for Thomas and David Humphreys April 14th, 1823, and the plea of payment with leave, &c., entered. On the 18th of August, 1823, judgment was entered against Owen Humphreys for want of appearance. On the 26th of January, 1825, the cause was tried and a verdict given for the defendants. On the trial of the cause, the plaintiff gave in evidence the record of the judgment, of February Term, 1800. Also, the scire facias to August, 1822; and the alias scire facias to November, 1822. And the defendants examined Reese Thomas, who testified as follows: Thomas Humphreys, the defendants’ intestate, lived in Lower Merion township, in Montgomery county, about nine miles from Philadelphia, on the Lancaster road: he died about three or four years ago. David Humphreys is living, and keeps the turnpike gate, No. 2, in the county. He did not know Owen. Thomas was a very old man, — he was a man of property, and owned real estate.</p> <p>The court charged the jury as follows:</p> <p>“ This is a scire facias to revive a judgment, entered on the 9th of April, 1S00, twenty-four years ago last April, and, according to the evidence, the first step that we know of to assert a claim, or carry it into execution, or to demand any thing under it, was a scire facias to August Term, 1822, returned nihil, which, had it issued within twenty-one years, would probably have been a sufficient assertion of claim, to take the case out of the presumption from length of time.</p> <p>“ The defendant has pleaded payment, and relies for his proof of this defence on the lapse of time between the entering of judgment and doing any act to carry it into effect. It is certainly true, that a judgment may be discharged by payment; had a payment been made and a receipt given, sueh receipt might have been given in evidence, to show that the judgment was satisfied. But after great length of time, owing to the great difficulty of preserving receipts, or other evidence of payment, it is reasonable that payment should be presumed from length of lime. That in respect to a bond, after twenty years from the time of payment upon it, or demand made, a presumption of payment arises, seems to be admitted. So, after twenty years, a mortgage will be presumed to be satisfied. Neither in Great Britain, nor here, is there any statute providing for this limitation. In England, although the case was not included in it, the decisions evidently had reference to the statute of James. If the law presumes a bond or mortgage paid after twenty years, can any sound reason be assigned why a judgment should not be subject to the same rule? Is there in a judgment any greater sanctity than in a mortgage?</p> <p>“ When a mortgagee, not in possession, has not received any payment for twenty years, or done any act under the mortgage to preserve his claim, the law presumes payment. When he is in possession, no presumption indeed arises, because, being in the perception of the profits, they are by law appropriated to pay off the mortgage. It is not unusual to give judgment bonds and mortgages: the former are entered up, and the latter are recorded. Against a mortgage thus entered, a presumption of payment from twenty years arises. What reason is there it should not operate so in regard to a debt secured by a judgment? — Of a judgment which has been suffered to lie dormant twenty years, payment may be presumed. Forbearance for so long a time unexplained, is a circumstance from which the jury may and ought to infer, that the judgment has been satisfied.</p> <p>“ The court apply the same principle to a judgment; a judgment which has* been suffered to lie dormant for twenty years. It is but a presumption, but it is a legal presumption, governing the court and jury. It may indeed be repelled by circumstances, such as payment, promise to pay, &c. But in the absence of all evidence, as here, where the delay is unexplained by any circumstances, and more particularly, after the death of the obligor, the legal operation is, that the debt is paid. I state the law thus strongly, and without equivocation, that if there be any doubt upon the subject, it may be now settled, that the people may be informed, if such be the law, that the same presumption.of payment, applicable to bonds and mortgages, is not the rule as to judgments. It is true, that no authority of a record has been cited, but the analogy to the cases of bonds and mortgages is so strong as not to be mistaken. It is said that this is a record; so is a mortgage a record, not of a court, but under the charge of an officer of equal responsibility with the prothonotary, who enters the judgments of the court. His exemplifications are evidence. The law even presumes a common recovery after a certain length of time, for the purpose of effecting justice. Upon the whole, the jury will receive the law from the court, as it is laid down, without being led away by any thing that has been said about the respective parties, who are making and resisting the claim.”</p> <p>The plaintiff excepted to this opinion.</p> <p>The errors now assigned were,—</p> <p>1. The judge erred in charging the jury, that the lapse of twenty years afforded a legal presumption that the judgment was paid.</p> <p>2. The judge erred in not leaving it to the jury, that a judgment by default against one of the defendants, after a return of two ni-hils as to him, to two writs of scire facias, was a circumstance to repel the presumption of payment from lapse of time.</p> <p>3. The court refused to leave the facts of the case to the jury.</p> <p>now argued the errors assigned.</p> <p>1. They contended, that there was no presumption in law that a judgment was paid after twenty years. At common law, payment was not a good plea to a scire facias on a.judgment: the sta- . tute 4 Jinn. c. 16, gives the plea where the money is paid. No matter in pais is pleadable to a scire facias, except the plea given by this statute. There can be no presumption against a record: it imports absolute verity: it is authentic beyond contradiction5 and tried only by itself. There is no authority for the court’s decision either in England or Pennsylvania. On the contrary, the books of practice speak of the modes of proceeding to revive judgments after twenty years. The defendant has a right, if he pays a judgment, to call on the plaintiff to enter satisfaction, and that makes the case of a bond and judgment very different. They cited, Co. Lilt. 39, a. 117, 268. Gild. Ev. 7. 9 Johns. 287. 1 Ghitt. 481. 5 Bac. Jib. 410. Cowp. 214. Tid’s Frac. 1007. 2 W. Bl. 995. 6 Munf. 282. 3 Bl. Com. 559.</p> <p>2. The judgment by default against Owen Humphreys was an admission of the cause of action. Sira. 612,1149. An acknowledgment by one partner takes the case out of the statute of limitations. Ball on Limit. 202.</p> <p>3. The court ought to have left the case to the jury. Circumstances do away the presumption, — such as indorsement of interest on a bond, 2 Stra. 826: the unsettled state of the country, 1 Coxe’s N. J. Rep. 433. Slight circumstances suffice to repel the presumption. 10 Johns. 414.</p> <p>1. This case presents the naked question,.whether a presumption of payment of a judgment arises after a lapse of twenty years. Here upwards of twenty-two years had passed. We contend, that the same general rule applies to judgments which operates in other cases. A bond is presumed to be paid after twenty years, 1 Yeates, 344; a mortgage, 1 Mad. Ch. 417, 246, 3 P. Wms. 287,10 Johns. 414, 9 Wheat. 497: corporate privileges are not disturbed after twenty years, 4 Burr. 1962: a water-right is protected after twenty-one years, 10 Serg. & Rawle, 63, 69. We do not deny the record, but say the debt has been paid, and this is an answer to the cases cited as to the efficacy of records. This question is not, however, new: it has already been decided, Fr. Max. Eq. 39, No. 10, pi. 5. 2 South. N. J. Rep. 721. 2 Const. Rep. S. Car. 617. 2 Rep. Const. Co. S. C. 146, are all authorities in point; and the allusion to it is strong in 7 Serg. & Rawle, 410.</p> <p>2. The judgment by default against Owen Humphreys was not a circumstance which should have induced the court to leave this matter to the jury. It is indeed sufficient, that the court was not asked for their opinion as to the effect of the judgment by default; and a judgment is not to be reversed because the judge has not made all the remarks which the case admitted of, 2 Serg. & Rawle, 397. No-presumption, however, can arise from a judgment by default on two nihils The defendant not having been summoned did not know of the action, and therefore did not impliedly confess any thing.</p>

<p>The sheriff is answerable for the sufficiency of sureties in a replevin bond, at the termination of the suit. ' It is not enough that they were sufficient when they were taken.</p>

IN ERROR. ERROR to the District Court for the city and county of Philadelphia.

<p>CERTIORARI.</p> <p>Certiorari to the Coui;t of Quarter Sessions of Montgomery county.</p>

<p>A person, who on furnishing bricks for the erection of a building, agrees to be paid part in cash, and “ the balance in lumber at fair prices, whenever called for out of S’s lumber yard,” and accepts the guarantee of S. for the performance of the contract, does not lose his lien upon the building, g'vemby the act of the 17th, March, 1806.</p>

<p>IN ERROR.</p> <p>Writ of error to the District .Court for the city and county of Philadelphia. The plaintiffs in error were defendants below.</p> <p>Cohen and Nesbit, the plaintiffs below, brought a suit against the defendants below, as assignees of the late firm of Benjamin Bates and Co., to recover such dividend as may have been due upon the sum of seven hundred and two dollars and forty-three cents, with interest, alleged to be due from B. Bates and Co, under the following circumstances:</p> <p>B. Bates, of the firm of B. Bates and Co., and John Davis, of the firm of Anderson and Davis, came to the store of the plaintiffs below, on the 24th of October, 1818, and examined a parcel of vestings. A bale was bought of the plaintiffs below, to the amount of seven hundred and two dollars and forty-three cents. The goods, &c. bought were charged to the account of Anderson and Davis and B. Bates and Co. on the plaintiffs’ books at six months’ credit, in the handwriting of the said Nesbit, who was not present at the sale. But it was denied by the defendants that the goods were sold to Anderson and Davis and B. Bates and Co. by the plaintiffs. They alleged the sale to have been only to Anderson and Davis, while the plaintiffs alleged that they were sold to both. The plaintiffs gave evidence that Davis and Bates went to the store to look at the vestings; that if they suited, Bates was to take a part, and that after examination they agreed to take a package. Mr. Cohen asked where the goods should be sent to, and Davis answered, “You may as well send them to Anderson and Davis’s store.” They were sent there, with a bill made out, accordingly.</p> <p>The defendants gave evidence, that Bates said nothing to the plaintiffs about buying; that he had nothing to do with the pur-' chase of the goods; that Davis said to Cohen, “ I will take this,” and that Cohen asked who the goods were to be charged to, when Davis said, “to me;” that the plaintiffs received through a Mr, Fatteral the note of Anderson and Davis for seven hundred and two dollars and forty-three cents, for the goods sold, which at maturity, the 27th of April, 1819, was protested for non-payment, and notice given thereof to Bates; that Bates and Co. bought part of the vestings from Anderson and Davis, and gave their note for three hundred and forty-one dollars and five cents therefor, which was passed away by Anderson and Davis, and paid at maturity by Benjamin Bates and Co. or their indorsees. -The note of Anderson and Davis was received and held by the plaintiffs until due, and passed to the credit of the goods on the books of the plaintiffs. The assignment of B. Bates, under which the plaintiffs claimed, provided for the payment of certain debts, viz. those due from the firm of B. Bates and Co. from Young and Bates, and it provided for a release from all claims,&c. A release was tendered in due time.</p> <p>The court charged the jury (among other things) as follows: “ If Bates and Davis came together to buy, examined together, and they or Bates disputed the price, and the answer was, the plaintiffs might as well send the goods to Anderson and Davis, then the defendants may be considered as joint purchasers. If there is sufficient evidence to imply an agreement by Bates to be jointly liable, that is sufficient. The legal objections are not well founded. It is a just charge on the funds within the terms of the assignment, and the release is sufficient.”.</p> <p>The assignmént of Benjamin Bates, for himself and Benjamin Bates and Co., was made to Francis Milligan, William Sheep-shanks, and John Phillips, and dated May 14th, 1819, of “all effects belonging to the late firm of Young and Bates, or to Benjamin Bates and Co., or to the said Benjamin Bates in his individual capacity, in trust to pay over the moneys so obtained in equal, just, and rateable proportions, to the payment and satisfaction of such of the creditors of the said late firm of Young and Bates, and of the firm of Benjamin Bates and Co. as shall within thirty days from the date of this indenture execute and deliver to the said trustees, or either of them, a'good and sufficient release and. discharge of all their claims and demands against the said late firm of Young and Bates and against the said Beniamin Bates and Co.”</p> <p>The assignment was accepted by the defendants on the 14th of May, 1819, acknowledged on the same day, and recorded on the 14th of June, 1819.</p> <p>The release was as follows:</p> <p>“To all to whom these presents shall come, — we whose hands and seals are hereunto annexed, creditors of Anderson and Davis and Bates and Co., send greeting. Whereas the late firm of Benjamin Bates and Co., together with Anderson and Davis, are indebted to us in sums of money, which they are not fully able to satisfy: And whereas Benjamin Bates did, by a deed of assignment, dated May 14,1819, convey and assign to Francis Milligan, William Sheepshanks, and John Phillips, all his estate in trust for the creditors therein mentioned, on certain conditions, as appears by the assignment: And whereas we are desirous of availing ourselves of the provisions in the said assignment, and have agreed to make and execute a release pursuant to the said deed: Now know ye, that as well for the considerations aforesaid, as of the sum of one dollar to us in hand paid by the said Benjamin Bates, at the time of the execution hereof, the receipt whereof is hereby acknowledged, we have and do by these presents, remise, release, and for ever discharge the said firm of Benjamin Bates and Co., their or his heirs, executors, administrators, or assigns, of. and from aíl debts, dues, claims, and demands whatsoever, in law or equity, which we now have against the said firm, reserving to ourselves any right against the firm of Anderson and Davis.”</p> <p>The plaintiffs in error assigned for error,</p> <p>1. That the charge of the court was erroneous in this, — that it is not necessary to prove an express agreement to bind Bates, as an implied one is sufficient.</p> <p>2. That the said charge is erroneous in this, — that if Bates and Davis came together to buy, examined together, and they or Bates disputed the price, and the answer was, the plaintiffs might as well send the goods to Anderson and Davis, then the defendants may be considered as joint purchasers.</p> <p>3. That the said charge is erroneous in this, — that the bill (viz. of the goods sold by the plaintiffs,) sent to one was substantially sent to both.</p> <p>4. That the said charge is erroneous in this, — the legal objections are not well founded: it is a just charge on the fund, within the terms of the assignment, and the release is sufficient.</p>

<p>CASE STATED..</p> <p>This case was tried before Gibson, J. at Nisi Prius, in December last, and a verdict found for the plaintiff, subject to the opinion of the court. The following cáse was afterwards stated.</p> <p>“On the 5th of April, 1799, Jeremiah Barnard made his will, whereby he devised certain portions of his real estate to each of his daughters, Judith, Mary, and Ann, during their lives, respectively, by metes and bounds. He then introduces the following clause : ‘ Item, it is my will that if any of my daughters die without lawful issue, or if having issue, and such issue all die in their minority without leaving lawful issue, then I give the land and premises so to them before allotted to my other child or children’s lawful issue, as tenants in common, to hold to them, their heirs or assigns, for ever;’ ” On the 24th of August, 1799, Judith, youngest daughter, died. On the 26th oi August, 1799, the testator executed a codicil, not altering the will in any essential particular. On the 2Sth of August, 1799, Jeremiah Barnard, the testator, died. At the time of his death, his two daughters, Ann and Mary, were under age. Mary afterwards intermarried with Joseph Way on the-of October, 1812, and had two children, Mary Ann Way born in 1813, and Joseph Morris Way born in August, 1815. On the 22d of June, 1818, Joseph Way and Mary his wife, executed a conveyance to Ann Barnard, of all. the said Mary’s interest, in the land devised by Jeremiah Barnard to his daughter Judith. This conveyance recites the devise in the said will to Judith, and also the devise over above quoted, and then proceeds to state that ‘ whereas, the said Judith, deceased, unmarried before the decease of her father, the said Jeremiah Barnard, who, at the time of his death, in consequence of the previous decease of the said Judith, died intestate as to the aforesaid tract or parcel of land, with the appurtenances, leaving issue two daughters, to wit: Ann, and Mary the wife of Joseph Way, to whom by the laws of this commonwealth, relating to intestate’s estates, the aforesaid tract or parcel of land did descend and come.’ On the 26th of June, 1818, Ann Barnard the said conveyance, her bond, in the penal sum of two thousand, six hundred and eighty dollars, conditioned for the payment of one thousand, three hundred and forty dollars, on or before the 1st day of uipril ensuing the date, with interest from the 1st day of dipril previous to the date. Of this bond six hundred dollars on account of the principal, and the interest up to that lime, were paid on the 6th of March, 1819.' On the 1.5th of December, 1819, Jinn Barnard intermarried with John Gest, and has had three children, viz. Mary Jinn, Joseph, and Jeremiah Barnard, the last of whom has died. Joseph Way is deceased, and the plaintiffs are his administrators.</p> <p>The defendants allege that they are not liable for the balance of the bond, as thh consideration for which it was given, failed, Mary Way not having (as they allege) any interest in the estate devised to Judith, by Jeremiah Barnard: and of this equitable defence, notice was given on the 18th of June, 1824. •</p>

<p>CASE STATED.</p> <p>This action, brought by John H. Roberjot against Caroline, Ma-zurie,ym$ entered amicably, and the following case submitted for the opinion of the court. ...</p> <p>James J. Mazurie departed this life in the year 1822, having previously made his last will and testament, dated February 20th, 1822, wherein»and whereby he devised to his wife Caroline Ma-zurie, prout the will, and having also made a codicil to the said will, bearing date the 9th March, 1822. The whole of the said will and codicil are-in the hand writing of the testator. The said James J. Mazurie had previously executed a last will and testament dated the 8th of May, 1815, which will was in the handwriting of Isaac Wampole, of the city of Philadelphia, scrivi-ner; and also a codicil in his own hand-writing, dated January 1, 1817. The said last .'mentioned will and codicil were afterwards revoked. or supplied. They were not in force at the testator’s death.</p> <p>The question was, what estate and interest Caroline Mazurie, the testator’s widow took under the will and codicil of 1822.</p> <p>The will and codicil were as follows:</p> <p>“ Whereas it becomes the duty of a prudent man to arrange and settle his worldly affairs in due time, ánd more particularly when free of any distemper and sickness which might influence his ideas, I therefore take advantage of my present state, of health, which leaves me unimpaired all the faculties of my mind and body, to declare that the following dispositions are those that I wish may have their full effect and execution, after my death.</p> <p>tJíFirst, I give and bequeath to my beloved wife, Caroline Burn Parmentier, all my plate, jewelry or jewels, household and kitchen furniture of every description, and all and every article of provisions, liquors, merchandise and. money which may be in my house .at the time of my decease, without any inventory or account to be taken or made thereof. — Also, two third part of all other of my real and personal estate, to hold for her absolutely and for ever: moreover, I give and devise to my said wife, the two-third part of the nett rents, issues and incomes of all my real estate, for and during all the term of her natural life, and all the rest, residue, reversion, and remainder of my estate, real and ■ personal, whatever or whatsoever, and wheresoever, I give, devise and bequeath, that is the other third, unto my beloved son James Victor Mazurie, to hold to him, his executors, administrators and assigns, forever, and at the death of his mother, to become, or he becomes sole heir of all I have bequeathed to her.</p> <p>“Item, I nominate and appoint my said wife Caroline, and my friend J. H. Roberjot, (Mr. Stephen Girard’s clerk,) - executors of this, my last will and testament, and also testamentary guardians of the person and estate of my said son, during his minority, and in ease of his mother’s death, her mother, Mrs. Parmentier, is to replace her with Mr J. PI. Roberjot, and if either of them die, to be replaced by those in whom they will leave their own affairs and confidence, &c. — Provided always, and it is my mind and will, and I do hereby authorize and empower my said executors, and the survivors and survivor of them, if in their judgment it would be advantageous to my said wife and son,'to sell and dispose of all, or .any part of my said real estate, and tq convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns forever. I will observe that 1 have made two wills, both of the same tenor and date, (say duplicate) annulling and making void all former ones, wishing this to be taken as the only one that I acknowledge, and that it may have as much force and effect as if it passed before notaries and witnesses.</p> <p>“Philadelphia, February the 20th day, in the year of our Lord one thousand, eight hundred and twenty-two. J.J. Mazurie.</p> <p>“ Christian name, James John, — who is born in Landerneau, Lower Brittany, in France, the eleventh day of September, seventeen hundred and sixty-four; and was baptized Jacques Jean Patient Mazurie, but has always signed as above.</p> <p>“A supplemental act of James John Mazurie. Having reflected, and apprehending to leave any trouble to my beloved wife after my death, I wish to alter a part of my will, and I do alter it, which is only with regard to my son James Victor, and which I think will turn to his advantage hereafter, that is, that my wish is to annul, and do annul' it, the word, during his minority, and to insert in his stead, the words when he attains his thirtieth year, and not before, at which time a tranfer will be made to him, that is, in his name, but in trust for the benefit of his children or children’s of his third, according to my will here above; and till he. attains his thirtieth year he will be maintained by his mother, who will be at liberty to allow him the nett or clear third of his incomes, if she think it proper ; if not, only whatever she wishes, according to his behaviour, and then he will have no right to bring her to an account for what she may have paid, disbursed or advanced him to the term of his thirtieth year; at which time there will be an evaluation made of all the property, (household furniture, &c., herein before-mentioned excepted) which I have bequeath to her during her life, and afterward to our said son for the benefit of his children, and after the evaluation is made, my wife will have the privilege of holding at the evaluation prices, whatever property she thinks proper for her two-third, after which the transfer of the other third of my estate will be made over to him for the benefit of his. children, if any he has lawfully; to be divided among them equally, after his death and they of age, and if he leave no heir or heiress, and should die before his mother, it goes to her, and after her death, the whole of my estate shall go to my real heirs, that is, in case that our beloved son James Victor do not get married, and has no children, but if he has any, my wife’s two-third after her death, will-be transferred over to him for the benefit of his children as before-mentioned, and not otherwise; but that he will receive and enjoy with his children, the interest or incomes of saicl estate during his life, and if he has no children, after he attains his thirtieth year of age, he is only to enjoy of the interest, or income of my estate during his life, and not to dispose of the capital, I mean of any part of my real or personal estate, as it is to go to my real heirs after ■ my wife’s death, and his death if he has no children; and if 'it should be that any part of my stocks or real property should be realized in cash, in such case the administrators will do their best to invest the said money in some other stocks or real estate, and likewise the pash, if any I leave in banks, or any money received of my outstanding debts, I say to have the whole invested as before-mentioned, in stocks or real property.</p> <p>“As it will be understood by this writing, that all my outstanding debts are included, I will make an exception, and mention that I do not include altogether, the bond of Messrs. Anthony JSeelen and C. II. Bosler, of Pittsburgh, dated August 8,1821, for forty five thousand dollars, payable in fifteen instalments of three thousand dollars, each yearly with interest, my wish being, that at the recovery of that sacred debt, one eighth part of whatever will be recovered of that'said bond, will be put in some kind of good stock or real, property, the interest of which will be divided equally among my brother Theodore, his children now in Pittsburgh, and one sixteenth part of the same said bond of Beelin & Bosler, to my brother William, now at Athens, state of New York, which is likewise to be invested in good stock or real estate, the interest or incomes of which he will enjoy, during his life, and after his death if he has no children, to go to my brother 1'heodore, his childi’en, and the remainder of said bond, as before .mentioned, that is, two-third to my wife, and one third to my son James Victor.</p> <p>“This supplemental act of my last will and testament to have the same force and effect, as if passed before notaries and witnesses.</p> <p>“ Philadelphia, the 9th day of March, in the year of our Lord 1S22. iT. J. Mazurie</p>

IN ERROR. From the record of this case, returned on a writ of error, from the District Court for the city and county of Philadelphia, it appeared that in the month oí August, 1817, the defendant in error, who was ^defendant below, called upon the plaintiffs in error and said he wished to sell or exchange Cayenne money for goods.

<p>APPEAL.</p> <p>On the hearing of this case, it appeared that on the 8th of March, 1819, John M‘ Glinsey and wife conveyed to Joseph Simons a house at: the corner of Second and. South Streets, in the city of Philadelphia, in trust for the sole and separate use of the wife for life, and, after her death, for the use of the husband. On the same day, the trustee gave to the wife a power of attorney to receive the rents of the house, and never received any of them himself. M‘Glinsey and his wife lived together on very good terms. He received the rents, and generally laid them .out in goods for a store kept by his wife. On his death, the appellant accounted for the store goods as his. In settling the administration account, she charged the sum of one thousand seven hundred and sixty dollars and twenty-five cents, as retained by her in satisfaction of her claim against the intestate, for rents of her private estate received •by him during his life, with interest from the time of his death. She charged the sum of three hundred and fifty-eight dollars and seventy-five cents for funeral expenses, including a vault and tombstone. The Orphans’ Court rejected the whole of the first mentioned claim, and allowed but one hundred and thirty-nine dollars and thirty-seven cents, one half of the amount charged, for funeral expenses. From the decree of the Orphans’ Court, the adminis-tratrix entered an appeal to this court.</p> <p>observed, that chancery, considering the separate estate of the wife as belonging to her, with power to dispose of it by her voluntary act, this case presented a question of fact, viz. whether the wife had made to her husband a gift of the rents of her separate estate? From his receipts, it appears that he received the rents as her agent; and, having received as an agent, he must account as an agent. If the court have any difficulty as to the fact, they may direct an issue to be tried by a jury.</p> <p>2. The intestate having left a considerable estate, and no children, the sum charged for funeral expenses was not unreasonable.</p> <p>1. It is an important feature of this case, that the separate property of the wife was the voluntary gift of the husband after marriage, and that as to the store, said to be the wife’s, the husband was active in purchasing goods at auction. The principles which govern the point in controversy are well established. Where the wife permits the husband to receive the rents of her separate estate, the most favourable presumption, is made for the husband. 7 Johns. Chi E. 117. 3 Johns. Ch. E. 77. 17 Johns. 548. The wife is not admitted in equity to recover against her husband’s estate, if she has permitted him during his life to receive the interest of her personal estate. Poidell v. HanJeey, 2 P. Wms. 82. Cluney on the Eights of Married Women, 168,169. If husband and wife are living together, and she permits him to receive the profits of her estate, she is not entitled, after his death, to an account against his representatives. D.albrai v. Dalbrai, 16 Vez. 125. Where the husband supplies his wife with necessaries, she shall not have an account for arrears of pin money. Fowler v. Fowler, 3 P. Wms. 353. The court will 'not follow the personal property of the wife, through its various changes in the hands of the husband, without a positive agreement. It is of little moment, that the store was called hers. He purchased the goods at auction, and gave his own notes for the price. The interest in the store was his, and so she accounted for it after his death.</p> <p>2. The sum charged for funeral expenses was too high. A liberal allowance was made by the Orphans’ Court, and if the appellant wished to go to greater expense, she ought to pay it herself.</p>

CERTIORARI. The proceedings in this case were brought before this court by a certiorari, directed to the Court'of Quarter Sessions oí Lehigh county.

m ERROR. Os the return of a writ of error to the judges of the Court of Common Pleas, holding a Court of Oyer and Texuniner for the city and county of Philadelphia, it appeared that the plaintiff in error, John Smith, was convicted of burglary at the January session of the Court of Oyer and Terminer, held in 1819, and sentenced to undergo an imprisonment for the term of seven years, one twelfth part of it in the solitary cells, the remainder at hard labour, to restore the…

IN ERROR. The plaintiff in error, Godfrey Shrunk, having instituted proceedings in the Court of Common Pleas of Philadelphia county against the defendants in error, under the act of assembly of the… Held: that the owners of the shores of the Saranac might erect dams across the river; and the case of Hooker v. Cummings, 20 Johns. 90, which makes the islands the property of the owners of the opposite shores.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Chester county, in an action of ejectment brought by Ruth Thompson, the defendant in error, against the plaintiff in error, John D. Steele, to recover four hundred and ten acres of land in West Bradford township, which the plaintiff below claimed as one of the children and heirs at law of George Liggett the elder, who, being seized of the premises in question, by his will, dated October 1st, 175S, devised the same to George Liggett the younger, by the following words: “And, as touching my worldly substance, with which it hath pleased God in this life to bless me, I give, bequeath, and dispose of the same in the following manner, that is to say, I make over and bequeath to my son George Liggett the plantation I now live on, which hath two deeds.” He thén devises as follows: “ Also, I give and bequeath to my son John the plantation in East Nantmill township in the aforesaid county; also, I leave my daughters, Rachael and Margaret, the plantation in East Fallow-field township, the county aforesaid.” To his daughters, Mary, Ruth, Jinn, and Rebecca, he then gives legacies of fifty pounds each, to be paid when they respectively come of age; and also fifty pounds to his daughter,' Elizabeth M‘Kinley, and ten pounds to his grandson, George .MKinley, to be paid when he is of age. The personal estate was directed to be kept together to maintain and school the children, as formerly, until' George should come of age, and then divided into three parts, one of which was given to the testator’s wife, one to his son George, and one to his son John; but if it should amount to more than fifty pounds each, the over-plus was to go as directed by the will. After George came of age, the testator’s wife was to have such part of the house as she pleased, while she lived a widow.</p> <p>George Liggett the elder died, leaving several children, of whom the defendant in error, who intermarried with John Thompson, since deceased, was one.</p> <p>By a release, bearing date the 25th of January, 1772, the defendant in error, together with her husband and several other heirs of George Liggett the elder, relinquished all claim to the premises in question to George Liggett the younger. This release was acknowledged on the 2d of Jlpril, 1774, the defendant then being a /erne covert, before William Clingan, esquire, a justice of the peace, who certified, “that the above named Joseph MlKmley and Elizabeth his wife, James Gondie and Rachael his wife, James Caldwell, and Mary his wife, John Thompson and Rulh his wife, Jlnna Stanett, and John Liggett, did acknowledge the above written instrument of writing to be their act and deed, and desired the same might be recorded, the said Rachael, Elizabeth, Mary, and Ruth being of full age, and by me privately and apart examined, did say, that they and each and every of them did execute the same of their own free will and accord, without any compulsion whatsoever.”</p> <p>The plaintiff in error held under a title derived from George Liggett the younger, who died before.the action was brought. On the trial in the court below, he contended, first, That bv the will of George Liggett the elder, an estate in fee simple passed to George Liggett the younger; and, secondly, That the certificate of the acknowledgment of the release'by the defendant in error, was sufficient to divest her interest as a feme covert, under the act of assembly.</p> <p>The court having charged against him on both points, the jury found a verdict for the plaintiff below, for one ninth part of the premises. The defendant, below, having excepted to the opinion of the court on both points, sued out a writ of error.</p> <p>1. If the will of George Liggett the elder be construed as passing an estate for life only to George the younger, it is a case of extreme hardship to the plaintiff in error, who has paid a valuable consideration, made valuable improvements, and held the land thirty years. But there is enough in the will to show that the intention of the testator clearly was to give a fee simple, and that intention must govern, if not contrary to any rule of law. It is the will of a father of a family, made in his last illness, written probably by himself, a very illiterate man. He first declares his intention to dispose of all his worldly substance, which is equivalent to a declaration of an intent to dispose of his whole estate, words which have more weight in devises by a father to his chil.dren than in other cases. Caldwell v. Ferguson, 2 Yeates, 380. Worldly substance is the same as property, and property means estate. Rosetter v. Simmons, 6 Serg. & Rawle, 456. That the introductory'words alone would give a fee is not contended, but here there is much more. The words e' malte over” signify more than bequeath, and imply the whole of the testator’s interest. And when he makes over the plantation, “ which hath two deeds,” he evidently intended to give all the estate conveyed by those two deeds. These words are not descriptive, but refer to the quantity of interest. The locality of the devise had been previously fixed by the words, “the plantation I now live on.” Words of inheritance are not necessary in a will to pass a fee. “All my real and personal property” are sufficient for that purpose. Momson v. Semple, 6 Binn. 97. A devise of an improvement gives a fee. Anonymous, 3 Ball. 477. So, “ all the remainder and residue of all the effects, both real and personal, of which I shall die possessed.” Hogan v. Jackson, Cowp. 299. The words, “My property, after my- debts are paid, I give and bequeath to my beloved wife,” pass a fee simple. Jackson v. Housel, 17 Johns. 281. See also, 6 Cruise, 260. Jackson v. Merrill, 6 Johns. 185, note, {2d Edit.) Cardwell v. Ferguson, 2 Yeates, 380. Frogmorton v. Halliday, 3 Burr. 1618. Bailis v. Gale, 2 Fes. 48. Cas. Temp. Talb. 157. Moore, 873, French v. MRhenny, 2 Binn. 13. Clayton v. Clayton, 3 Binn. 476. Cassell v. Cook, 8 Serg. & Rawle, 288. Ml Williams v. Martin, 12 Serg. & Rawle, 269. Other parts of the will show an intent to give a fee. The testator provides for all his other children, and evidently did not mean to make an inadequate provision for George, which would be the case if he took only an estate for life. The personal estate is to be kept together to maintain and school the children, as formerly, until George comes of age; that is, they are to be kept on George’s estate. There is a devise, too, to' the testator’s wife, of part of the dwelling-house, expressly during widowhood, which brings it within that class of cases which go to establish the position, that where A. devises land to B. for life, and the rest of all his lands to C., a remainder in fee passes to C. Jllleyn, 28. Cooke v. Gerrard, 1 Lev. 212. Wilson v. Robinson, 2 Lev. 91. 2 Vent. 285. Cro. Eliz. 524. Hope v. Taylor, 1 Burr. 268. This view of the will is strengthened by the circumstance, that there is no residuary devise of the land.</p> <p>' 2. The certificate of the acknowledgment of the release, contains enough to divest the defendant in error of her estate. The precise point in which it is supposed to- be defective, viz. in omitting to .state that “the contents of the deed were made known to her,” has never been expressly decided, though there have been dicta on the subject. In MlIntyre v. Ward., 5 Binn. 296, the Chief Justice expressly reserves his opinion on this question. It is the duty of the justice to make known the contents of the deed, and it should be presumed he did his duty. The certificate states, that she acknowledged she had executed the above instrument, which amounts to an acknowledgment that she knew its contents. Davy v. Turner, 1 Dali. 11. . diet of- the 24 th of February, 1770. Purd. Dig. 117. Watson v. Bailey, 1 Binn. 470. Shatter v. Brand, 6 Binn. 435.' Evans v. The Commonwealth, 4 Serg. & Rawle, 272. Watson v. Mercer, 6 Serg. & Rawle, 49. Fowler v. Mi Clurg, Id. 143 Jourdan v. Jourdan, 9 Serg. & Rawle, 268. Talbot v.. Simpson, 1 Peters, 190. Kirie v. Dean, 2 Binn. 341. 3 Jim. Dig. 321, pi. 104, 105. 2 Harr. & M(Hen. 38. Jacksón v. Gumaer, 2 Cowen, 552.</p> <p>1. The intent of the testator must be drawn from his language, and unless he has used words sufficient to convey the inheritance, George Liggett took only an estate for life. ’ The law will not disinherit the heir without apt words. Devise fo testator’s wife for life, and immediately after her decease to his son Paul, all his land at A., and five shillings to his heir at law and other children; Paul takes an estate for life only. Roe v. Bolton, 2 Bl. Rep. 1045. A devise to one without words of limitation, is to be construed a life estate only, unless it clearly appears from other parts of the will that more was intended. Botees v. Blackett, Cowp. 235. An introductory clause, “as touching the disposition of all my worldly estate,” is not sufficient to give a fee where the devise is in general terms, without words of limitation. Frogmorton v. Wright, 2 Bl. Rep. 889. Busby v. Busby, 1 Dali. 226. There is nothing in the words “ make over,” used in this devise, to enlarge it to a fee. In subsequent devises to other children, to whom he certainly intended to give the same quantity of estate, the testator in one instance uses the word bequeath, and in another leave. Neither is there any thing in the words, “ which hath two deeds,” for they are purely words of description.</p> <p>. 2. Whether the acknowledgment was good, depends.on the act of the 24th of February, 1770. It does not appear that the. husband was not present at the examination. The expressions of the certificate are, “inprivate and apart.” Nor does it appear that the contents of the deed, were made known to the defendant in error. This court has repeatedly decided, as appears from the cases cited on the opposite side, that it must appear on the face of the certificate, that all the directions of the act of assembly have been complied with.</p>

IN ERROR. On a writ of error to the District Court for the city and county of Philadelphia, the case was thus:' William Wright, Elizabeth Wright, and Jane Wright, minor children of John Wright, who had absconded sometime before the commencement of the suit, and of whose death some evidence was given, by their guardian, George W. Gibbons, brought an action for money had and received against William Lee, the plaintiff in error, to recover the proceeds of certain personal…

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Montgomery county, in which court</p>

CASE STATED. Case stated for the opinion of the court, in substance as follows: Barnaby Barnes duly made his last will and testament, dated the first day of February, 1830, (prout the will,-) leaving a widow, the abovg named Christiana, now Christiana Lippencott, a daughter, the above named Augusta Barnes, and a son, Barnaby, born after the death of his father. Barnaby Barnes, the son, died in his infancy, leaving no issue.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Philadelphia county.</p> <p>This aetion was originally commenced before an alderman by Thomas Wichersham, trustee of Peter Pollin, an insolvent debt- or, against Joseph I. Nicholson, the defendant in error, and removed to the Court of Common Pleas by appeal. A declaration in assumpsit containing several counts -was filed, to which the defendant pleaded non assumpsit and payment. It was afterwards agreed by the counsel on both sides, that a special verdict should be entered in favour of. the plaintiff for the sum of thirty-seVen dollars and forty-five cents, subject to the opinion of the court on the following facts:</p> <p>Peter Pollin was discharged as an insolvent debtor on the lltfi of October, 1821, and made an assignment to the plaintiff and Elizabeth Finch, who were appointed his trustees. Elizabeth Finch not having given surety, and refusing to act, was afterwards removed, and the plaintiff appointed sole trustee. On the 12th of October, 1821, the defendant, who owed Pollin for boots and shoes the sum .of thirty-two dollars and fifty cents, paid him in full- and took his receipt. On the 14th of January, 1822, the plaintiff gave bond with surety, according to the act of assembly; and gave notice in the public papers of his appointment, calling upon all persons indebted to Pollin to make payment to him. Pollin had given notice of his application for the benefit of the acts, in two of the daily papers of the city of Philadelphia for upwards oi- fifteen days before his discharge.</p> <p>Upon this case the Common Pleas gave judgment for the defendant, and the plaintiff took a writ of error.</p> <p>cited the act of the 26th of March, 1814, sect. 4. Cooper v. Henderson, 6 Binn. 190. Stat. 1.3 El. c. 7, s. 2. 2 Mudd. Ch. 629, 630. Stat. 1 Jac. 1, c. 15, s. 14. Cowp. 569. 5 Serg. & Bawle, 397. 2 Yeates, 520. 1 Burr. 20. 5 Term Bep. 197. 2 Ball. 276. 4 Dali. 370. Sugd. Vend. 532.</p> <p>cited, 1 Madd. Ch. 548. Beeves’ JDom. Bel. 31. 1 Phil. Ev. 306. 1 Gall. Bep. 425. 1 Com. Contr. 437. 2 Fonbl. 155. 16 Johns. 85. 8 Serg. & Bawle, 497. 9 Serg. 6 Bawle, 77.</p>

<p>IN ERROR.</p> <p>Writ of error to the District Court of Dauphin county, in which the defendant in error was plaintiff, and the plaintiffs in error defendants.</p>

<p>' A judge is not bound by the act of the 24th of February, 1806, to file of record his ■whole charge to the jury.</p> <p>Nor is he bound, at the request of the party excepting; to annex to the record a copy of the evidence taken by him, and transcribed by the party making the request. But it is the duty of the judge, if requested, to permit so much of the evidence as may be necessary to understand his opinion, to be placed upon the the record. This request should be made immediately on the delivery of the opinion, and the statement of the evidence should be prepared by the counsel, and submitted to the court in the same manner as in a bill of exceptions.</p>

<p>In an action by the assignee of a promissory note against the drawer, the defendant cannot, under the plea of payment, give in evidence declarations made by the assignor, before the assignment, “ that he would fix the drawer,” &c. if no notice has been given by the plaintiff, that such declarations would be offered in evidence.</p> <p>Where the assignee of a promissory note, drawn payable -without defalcation, takes it with full notice of a right of defalcation, attended with circumstances of strong ■ equity, arising between the drawer and payee subsequent to the date of the note, he takes it, (at least if the payee was insolvent at the time of the assignment,) subject to such right of defalcation.</p>

<p>W. was bound as surety for 12., in a bond to M. B., having brought suit against S., S. paid to M. the amount due on B’s, bond to him, and took the bond with a view to set it oft' in the suit brought against him by B., and an agreement was indorsed upon the bond, that the money should be repaid by M., if the set off was not allowed. On the trial of the action, upon the agreement, brought by S. against M. to recover back the money paid by the former to the latter, in which the principal question was, whether the set off had been allowed, W., the surety, was held not to be a competent witness for the defendant, being directly interested in the event of the suit.</p>

<p>In a feigned issue, to try whether a judgment which had been assigned to the plaintiffs, is a lien upon the lands of the defendant, declarations by the assignor, made before the assignment, that a few days after the entry of the judgment, and when its entry was unknown to the defendant, lie had paid to the assignor three hundred dollars, in consideration of which, the latter had agreed not to enter the judgment, may be given in evidence by the defendant.</p> <p>Though the opinion of a witness, as to the value of land, is not strictly a fact, yet he may be asked what was the value of certain mortgaged premises', in the possession of the defendant, at the time judgment was entered against him, on tho bond accompanying the mortgage.</p> <p>In a feigned issue to try the validity of a judgment assigned to the plaintiff, entered by warrant of attorney upon a bond, it is not error to charge the jury, that if the person, who at the time was the proprietor of the bond, after having entered judgment upon it, had agreed not to enter judgment, and declared to the obligor that no judgment had been entered, the effect of such agreement • and declaration would be, to render the judgment null and void, and that it would be a fraud to proceed on the judgment under such circumstances; provided the assignee had notice of such agreement before the assignment.</p> <p>But it is not necessary, in order to be affected by tffe agreement,, that the assignee should have notice on record, or even in writing. -</p> <p>Notice in any way is sufficient, provided it be full, and such as could leave the party in no "reasonable doubt.</p> <p>The Courts of Common Pleas have power to entertain a motion to strike off or open a judgment, or to order a feigned issue for the purpose of ascertaining necessary facts.</p>

<p>A writ of error does not lie on a decision of the court below, setting aside an award of referees, on exceptions founded both upon law and fact, though the award was set aside exclusively upon the points of law, without reference to the exceptions founded in fact.</p> <p>Whether an award shall be sent back to be corrected by the referees, is a matter which rests in the discretion of the court below, and in which this court has no right to control them. , ' '</p> <p>If several trustees, who have separately received money, agree to enter into an amicable reference, as defendants, and stipulate, “ that no advantage shall be taken as to the form of suit, or the liability of the parties in it,” an award against them jointly is good.</p>

IN ERROR. On the trial of this ejectment in the Court of Common Pleas of York county, thirteen bills of exception were taken by the plaintiffs in error, the defendants below, to the opinion of that court upon questions of evidence, and brought before this court on a writ of error.

<p>A justice of the peace is not presumed to be the agent of the plaintiff in a suit brought before him. Therefore a copy of the plaintiff’s account, furnished by the justice to the defendant, accompanied by a note demanding payment, is not evidence against the plaintiff; on the trial of another action.</p>

<p>In a suit upon a bond, given for a pre-existing debt, due to the plaintiff by a third .person, parol evidence is not admissible to show, that at the time it was executed the obligee declared, that he would require nothing more than the interest to be paid during his life, and that at his death the bond should become null and void; unless the obligor was induced by such declarations to execute the bond.</p>

<p>This court'will not reverse a judgment entered by confession in the court below, in an action of debt, because no declaration has been filed.</p> <p>But where the suit is commenced by writ, an appearance entered, a plea put in, a judgment confessed, and the plaintiff j after judgment, by leave of the court, files a declaration, nunc pro tunc, the judgmefit will be reversed, if the declaration sets forth no cause of action. ;. .</p> <p>An action of debt will not lie on a judgment for damages, obtained under the act • of the 6th of Jtpril, 1802, “ to enable purchasers at sheriffs’ and coroners’ sales to obtain possession.” The remedy prescribed by the act, can alone be pursued.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Lancaster county, in a feigned issue directed by that court to try the validity of a judgment, in which Mraharn Barr, Christian Barr, and .Michael Withers were plaintiffs, and Joseph Withers and Chey-ney Pelin defendants. was plaintiff in the issue, and John Neff and Francis Kendig defendants.

IN ERROR. Error to the Court of Common Pleas of Lebanon courity. Held: then the said obligation to be void, otherwise to remain in full force and virtue. The said Adam Hawk appeared on the first day of August Term and presented his petition for the benefit of the insol vent laws, and the court appointed the first Monday of the next term for a hearing and directed notice to be given to the creditors.

IN ERROR. Writ of error to the Court of Common Pleas of Dauphin county, in an action on a bond given by George Wilson, the plaintiff in error, and defendant below, to John Irwin and John Lyons, administrators of William M‘Clay deceased, the defendants in error, and plaintiffs below. The bond was equitably assigned by John Irwin alone to Joseph Howard, for whose use the suit was brought. •

<p>IN ERROR.</p> <p>This was a writ of error to the Common Pleas of Berks county, in which court, the defendant in error, Joseph Kendall, administrator of Samuel Kendall, deceased, brought suit against Jacob K. Boyer, the plaintiff in error.</p> <p>On the trial, the plaintiff' offered John Miller as a witness, who being sworn on his voire dire, said, “ I have a small claim on Samuel Kendall’s estate of about twenty dollars on book account. I dont think the estate is sufficient to pay the debts. John Kendall’s and Elisha Geigers’s estates have each a large claim on the estate of Samuel Kendall, amounting to about ten thousand dollars. If Mr. Boyer establishes his claim in this action, the estate of Samuel Kendall will not be sufficient to pay all the claims, unless there is more property'than I know of.” This testimony was objected to by the cotinsel for the defendant, and admitted by the court, which was the only error assigned.</p> <p>Miller was not a competent witness, because no man can be a witness to increase a fund in which he is to participate. Therefore a bankrupt cannot be a witness to increase his estate; nor a residuary devisee to in-, crease the fund; nor a specific legatee to disprove a claim against the estate of the testator; nor can an heir be a witness for the administrator in an action against a debtor of the estate. 1 Phill. Ev. 51. (note c.) 14 John 146. 2 Day 466. 2 Munf. 452. 1 Mass. Hep. 239. 1 Dali. 62. 2 Dali. 50. 4 Mass. Rep. 518.</p> <p>relied on the opinion of this court in Youst v. Martin. 3 Serg. & Rawle, 423. He observed, that it was by no means clear that the estate of Samuel Kendall was insolvent. No administration account had been settled, and of course it-was not ascertained that there was not enough to pay all the debts. The witness merely said, that the estate would fall short, unless there was more property than he knew of.</p>

IN ERROR. Error to Lebanon county. The defendant in error, Samuel Fisher, brought this action of assumpsit in the court below, against JLbraham Doebler and Joseph Reinhart, the plaintiffs in error; and filed a declaration which contained two counts. ' The first was for money paid, laid out, and expended. The second, for money had and received.

<p>A recognizance entered into in the Orphans’ Court, by the son of a testator, conditioned for the payment to his other children of their shares of a certain real estate, . which the testator by his will directed should be appraised on the arrival of the son at the age of 21 years, and that if he chose to talce it at the appraisement lie might do so on giving security to the other children of the testator, is not within the provisions of any act of assembly, and no action can be supported upon it.</p> <p>If the land for which a recognizance is "given in the Orphans’- Court, is sold under an order of that court for the payment of debts, it is a good defence to an action on the recognizance.</p> <p>A decree of the Orphans’ Court, unreversed and unappealed from, cannot be questioned in a collateral suit, except in cases of fraud or when the defect plainly appears on the face of the proceedings. And where a pai'ty relies upon fraud, it ought to be distinctly and positively alleged, and not inferred merely from circumstances.</p>

APPEAL. This case came before the court on an appeal by John Withers, from the decree of the Orphans’ Court of Lancaster county, on a citation to Michael Withers jr. and others, to show cause why a certain judgment of Michael Withers and Samuel Eshelman, assignees of John Evans against Michael Withers, jr. should not be paid first, out the said Michael W'ithers, jr’s. share of the proceeds of his father’s estate, sold by his administrators under an order of the Orphans’…

IN ERROR. Several bills of exceptions to the opinion of the court below, both upon points of evidence, and in their charge- to the jury, being returned with the record of this case on a writ of error lo the District Court, of the city and county of Lancaster,

IN ERROR. .This suit was commenced in the Court of Common Pleas of York county, by the plaintiff in error, John Sweigart, against the defendant in error, Jacob Lowmarter, administrator of Henry Rei-singer,-deceased, according to the record returned on a writ of error to the court below, “by summons in debt by assumpsit, not exceeding two thousand five hundred dollars.” The plaintiff filed a declaration in account render which contained four counts.

CERTIORARI. On'a certiorari to the Court of Quarter Sessions of Lancaster county, it appeared that at the April Sessions, 1823, viewers were appointed, who reported in favour of a road, the courses of which they set out.

IN ERROR. On a writ of error to Lancaster county the case was thus: The defendant in error, Jacob Warfel, administrator of Daniel Lingefelter, brought a suit against Rudolph Shank, before John Good, Esq. a justice of the peace, who gave judgment in favour of the plaintiff for eighty-one dollars forty ceñís. The defendant entered an appeal to the Court of Common Pleas, to August term, 1S21, having previously entered into a recognizance before the magistrate, in the following…

<p>In an action on a bond, given for the purchase money of a tract of land, the defendant may, under the plea of payment and notice of special matter, prove that while he was treating for the purchase, the plaintiff showed him, as the boundaries, lines which were afterwards found not to be the boundaries of the land conveyed, and that the lines designated in the conveyance excluded the land which was shown to him as part of the tract.</p>

<p>Z>. L. being indebted on bond to the estate of his deceased father, Jl. L., in order to pay that and other debts, entered into an agreement with the administrators of A. Z., by which it was stipulated, that he should sell to them the plantation on which he lived, together with the stock, and that they should sell the same to the best advantage, and apply the proceeds in the first place to the payment of the other debts of JO. Z., and the residue, if any, to the extinguishment of his bond, “ and if the plantation and stock brought more than settled the debts, including the bond, return the overplus to him; but if not enough, the administrators were to be satisfied with what the property brought, and not call on J). L. for any more thereafter.” Held, that the sale of the plantation and stock, and the proceeds arising from them, were an extinguishment of the bond.</p>

IN ERROR. On a writ- of error to the Court,of Common Pleas of Berks county, it appeared that this was an action on the case in assump-sit, brought by the plaintiffs in error, Samuel Worman and Jacob Beiterman, for the use of William Sheepshanks, against Jacob K. Boyer. The declaration contained two counts: the first for goods sold and delivered; the second on an account stated. The cause was tried on the plea of' non assumpsit.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Lancaster county.</p> <p>In the court below it was an action of trespass, ’ brought by David Martin, _the plaintiff in error, against John Mathiot, late-sheriff of Lancaster county, for seizing four wagon horses with the harness appurtenant to them. The defendant justified the seizure under a writ offi. fa. directed to him as sheriff, whereby he was commanded to levy .a certain debt, for which judgment had been obtained by Robert Croser against John Michael, on the goods and chattels of the said Michael. The plaintiff replied,, that the horses and harness were his property, and not the property of John Michael, and on that issue the parties went to trial. It was proved, that the horses and harness were, at the time of the levy, and for some time before, in the possession of John Michael, who was a wagonner. Before they came into his possession, they were the property of the plaintiff The defendant gave evidence, that Michael stood charged in the books of the plaintiff, with a debt amounting, to upwards of sixty dollars, and that the plaintiff, being asked, whether Michael was the owner of the team he was driving, answered, that it belonged to Michael provided he would pay him that debt. Several questions were proposed to the court on this evidence, which may be comprised within a small compass. The opinion of the court was, that if vendor and vendee agree, that the possession shall pass to the vendee, but the property remain in the vendor, until the whole purchase money is paid, such agreement as respects creditors, and the sheriff is fraudulent ; and it is immaterial whether it appear that the creditor trusted the debtor on the credit of the goods which were in his possession, or not.</p> <p>To this opinion the plaintiff excepted.</p> <p>cited 4 Mass. Rep. 405. Clow v. Woods, 5 Serg & Rawle, 286. per Duncan, J. Waters'’s Executors v. McClellan, 4 Dull. 208. 1 Crunch, 816. 9 Johns. 201.</p> <p>cited- 5 Serg. & Rawle, 278, 285, 286, 287, 288. 2 Johns. 46.- Palmer v.Hand, 13 Johns. 434. Babb v. Clemson, 10 Serg. & Raiole, 419.</p>

<p>The 3d section of the act of 12th of April, 1825, requiring each and every county treasurer to settle his accounts before the second Tuesday in December in each and evei-y year, is confined to treasurers appointed after the 1st of January, 1826.</p> <p>The granting an information in the natwe of a Quo Warranto, is discretionary with the court; and it seems that it will not be granted, when it cannot be brought to trial before the expii-ation of the office to which it refers.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Lancaster county, in an action brought by Martin Munderbach, the plaintiff in error, against the defendant in error, the administrator of Nicholas Lutz, deceased. The nature of the case, and the points in controversy, will be better understood from the' opinion of the court, than from any .other statement which can be given of them.

<p>IN ERROR.</p> <p>The record of this case, having been returned on a writ of error to the Common Pleas of Lancaster county, the questions arising upon it were argued by</p>

IN ERROR. Writ of error to the Court of Common Pleas of Lancaster county. brought this action, in the court below, against the plaintiff in error, the executor of John Bitzer, deceased, to recover a legacy, claimed in right of the wife, who was the daughter of Barbara Meixel, deceased, who was the daughter of the said John Bitzer, under the following clauses in his will:— “ Item, I give and bequeath unto my two youngest sons, to each of them, the sum of four hundred pounds,…

<p>Whether a right to an island in the Susquehanna, could be acquired by settlement and improvement in the year 1749, quxre ? If it could, quxre whether such a title, without-warrant or survey, is embraced by the 5th section of the act of the 26th of March, 1785, where the settler was in possession at the date of the act ?</p> <p>A deposition, proving a settlement and improvement on an island in the Susquehanna, by the persons under whom the plaintiff claims, in the year 1749, and a possession continued upwards of fifty years, accompanied by a warrant issued in the year 1760, and a survey returned in the year 1763 for the use of the late pro» prietaries, is admissible in evidence, against a defendant who shows no title ; without having previously given evidence-connecting the plaintiff with those by whom the settlement was made.</p>

IN ERROR. Writ of error to the Court of Common Pjeas of Northumber-land county, in' a scire facias post annum et diem, &c., issued by Jacob K. Boyer, the plaintiff below, against Jacob Bombay administrator of Jacob Bower, deceased, ánd Benjamin Kline, co-defendants below.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common-Pleas of Centre county.</p> <p>In the court below, it was an action brought in the name of the commonwealth, for the use of the executors of Francis Gurney, against William Alexander, sheriff of the said county, and Philip Benner and Isaac M‘Kinny, his sureties, upon the official bond of the former, and the facts set out in the assignment of breaches were these: On the 6th of December, 1813, a judgment for three thousand and seventy-eight dollars was entered in the Common Pleas of Centre county, in favour of the executors of Francis Gurney, against William Patton, who owned sundry tracts of land in the said county, with a stay of execution for two years. The lien of this judgment was kept alive by scire facias. After the date of the judgment, viz. on the 14th of May, 1814, Patton sold one tract of land to Samuel^ Maxwell, for a full and valuable consideration; When this sale^a^-about to take place, Thomas Burnside, esq., who was attorné'^''’f£!Í'- Francis Gurney during his life, and for his executors after his death, was pressed for a release of the lien upon this land, which he refused to give, in consequence of which Patton gave to Maxwell a bond with two sureties, to indemnify him against the lien of the said judgment. Samuel Maxwell having become indebted, among others, to G. and II. Fahnestock, gave them a judgment of April Term, 1S17, on which & fieri facias was issued, and the above mentioned tract of land purchased from Patton, levied upon, condemned, and sold. The sheriff executed a deed to the purchaser, and gave a receipt for the whole' amount of the purchase money. This suit was brought to recover the amount of the judgment' held by Gurney’s executors against William Patton.</p> <p>It further appeared, that Philip Benner, on the 26th of August, 1814, obtained a judgment for one thousand five hundred and fifty-six dollars and thirty-five cents, against William Patton, under which other real estate of William Patton was sold, by virtue of a venditioni exponas, returnable to Jipril Term, 1815, The then sheriff, Mr. Rankin, executed a deed to the purchaser, gave a receipt for the whole of the purchase money, and after having paid a few judgments, took a receipt for the balance, amounting to nine hundred dollars, from the said William Patton. During the whole of this transaction, Mr. Burnside, who, though without a written power of attorney, was the agent of Mr. Gurney, and had the whole control and management of his affairs in the county, knew of the arrangement by which Patton was to give his receipt to the sheriff for the balance of the purchase money purporting to be in his hands; though nothing more than the costs was ever actually received by him. In this arrangement, Mr. Burnside, as agent, took no part, except that he was present and was consulted on the subject. He neither assented to it nor opposed it, but, as he stated in his examination, “permitted it to be done.”</p> <p>After the evidence was closed,, which embraced various other matters, not necessary to be here stated, the President of the Court of Common Pleas (Reed) delivered to the jury the following</p> <p>CHARGE. — We are of opinion, in this case, that the plaintiffs are ‘not entitled to recover. The controversy rests more upon principles of law, than any dispute about facts. The law we will endeavour to explain to you.</p> <p>Taking the facts as set out in the assignment of breaches, endorsed on the plaintiffs’ declaration, we think they would not entitle them to recover. It is admitted, on all hands, that the sale by Patton to Maxwell could not affect or impair the lien; but the first question is, Whether the plaintiffs have any other remedy than to proceed against the land as the property of William Patton, or, in other words, whether they can demand from the sheriff their claim out of the proceeds of the sale of the title of Samuel Maxwell? — And we are of opinion they cannot. The judgment against Patton did not disfranchise him as a freeholder. It did not in law operate as a disseisin; consequently, he had it in his power to sell the freehold, and to convey it" to Maxwell, and Maxwell would hold it only subject to the incumbrance. It being, then, Maxwell’s freehold, a levy and sale of it as Maxwell’s property, would only transfer his title. Such sale could not operate on the title of Patton, for he had before parted with it, and it had become legally vested in Maxwell. It being exclusively Maxwell’s property, and Maxwell’s title that was sold, the proceeds would belong exclusively to Maxwell and to his creditors. The purchaser would stand precisely in the place of Maxwell, that is, he would have the title and the freehold, but subject to the previous incumbrance. To allow the plaintiffs to recover, would manifestly be selling the estate of one man to pay the debt of another. It is no answer to say, that Maxwell purchased the estate liable to the incumbrance, because that incum-brance authorized the plaintiffs to proceed against the estate of Patton, which was bound by it; and it might be a materially different thing, whether they should have proceeded against Patton on this judgment, or against Maxwell. Their, titles might be different, for Maxwell might have procured a patent, extended the improvements, or in various other ways, and at great expense, completed a defective title; and in this way the whole would go to the benefit of Patton’s creditors, in preference to Maxwell’s. If Patton’s title had been sold, Maxwell might have had a chance of buying it in. If Patton’s creditors can demand the money, they would be compellable to take whatever such sale would bring; for the rule, of necessity, must be reciprocal. The purchaser, under such circumstances, either buys the land subject to the incum-brance absolutely, or totally discharged from it. It cannot abide the option of any person. If it were otherwise, there would be no certainty in sheriff’s sales, and no one could tell what price he had to pay, until after the sale, the creditors should choose to demand or not demand their claims out of the proceeds. It is indis-pensibly necessary to adopt a fixed and certain rule, either that the purchaser takes the land subject to the lien, or that he does not. To adopt the latter alternative would be in violation of all principle, and fraught with the most pernicious consequences It would be putting the control of a man’s lien into the hands of strangers, without his consent; for after a sale or two of the land, new creditors and new debtors are introduced, with whom the original parties had nothing to do. .</p> <p>It is supposed the defendant is responsible for the appropriation of monies on the sales of real estate, to the liens, according to their priority. If so, how can he ascertain liens against previous owners, in different names, and of which the record can furnish him with no notice? But this is reasoning only from the inexpediency of such a sale. I care more for the principles on which such sales are made. The sheriff sells all the right, title, and interest of a defendant, and a purchaser stands precisely in his place.' And if the defendant held the legal, estate liable tp an outstanding incum-brance, it would seem to follow that the sheriff’s vendee would, hold in the same manner- If an ancestor was indebted, say by judgment, and either die intestate,or devise his land to his son, and-that son should become indebted, and the land be sold on a judgment against him, I think it could hardly be pretended that the purchase money could be claimed by the creditors of the ancestor. And in what does that case differ- in principle from the present? The whole estate of the defendant in the execution is sold, and the whole price is to be applied to liens against him, according to priority, and, if any balance, to be paid to himself.</p> <p>If a person'mortgage.his property and remain in possession, he retains an equitable interest, which is the subject of levy and sale; and, if sold upon a subsequent judgment, nothing but the equity of redemption passes, and no part of the purchase money, can be applied to the mortgage, — on the ground that the estate beyond the mortgage was sold, and the proceeds are to be applied to liens beyond the mortgage.</p> <p>The sole principle of appropriation of monies raised by sales of real estate, is, that the court will not turn parties round to ask the process of the court, to raise money, when the money is actually in court. I therefore hold it to be a sound rule, that no one has a right to come into court and ask for a summary appropriation to himself, who is not entitled to the process of the court to raise the money. Therefore, upon sales on judgments in the Court of Common Pleas, the sheriff is not to go out of that court to look for liens. Mortgages on which no judgments have been rendered, recognizances in the Orphans’ Court, legacies charged upon land, and all such incumbrances, are out of the sphere of summary appropriations, either by the sheriff or by the court; and, so far from the sheriff incurring any liability by the nonpayment of them, they would not be entitled to payment on a specific application to the court. I am perfectly aware of the difference of opinion that has .existed on this subject, and I do hope that this case will be reviewed by the Supreme Court, in which the judges will be enabled to fix some principles that will render the practice more uniform. The purchase of the same estate, under the same- circumstance, by the variance in practice in different counties, might cost the purchaser ten times the price in one over that in another.</p> <p>Another point arises on the facts in this case. [His Honour here recapitulated the principal facts connected with Mr. Burnside’s knowledge of the arrangement by which William, Patton received the balance of the purchase money arising from the sale under Benner’s judgment.] • 1</p> <p>I have only repeated a part of the evidence. The jury will remember it. Upon the facts, it is contended that the plaintiffs by their conduct, relinquished their lien, under which they now claim. It is an undoubted rule in equity, and in Pennsylvania the law is the same, that a creditor having two funds, one of which is bona fide sold-for a valuable consideration by the defendant after-wards, when the first fund is presented to the creditor, and he refuses to use it, though sufficient, that he will not be permitted to resort to the second fund, to the prejudice of the intervening rights of the third person. So that if, in this case, by the sale under Ben-ner’s judgment, an ample fund was raised to pay off all antecedent incumbrances, as well as the judgment in question against William Patton; and the plaintiffs, by their agent, assented to that fund being paid over to William Patton himself, and did not claim it when they had the legal right; and, after the other fund had been transferred bona fide, and for a full and valuable consideration to ■Maxioell, notwithstanding the stay of execution was not up at the time on the judgment which is the subject of this suit, we say that such facts would justify the jury in saying, that the plaintiffs have relinquished their lien as against Samuel Maxwell, on the equitable presumption, that that had been done which ought to have been done. If the plaintiffs omitted to assert their claim, when justice and fair dealing required them to do it, the law will not suffer them to assert it, when it is so unjust and injurious to the rights of third persons to do so.</p> <p>In case of two or more judgments against land, and a sale by the sheriff on a younger one, for enough to discharge the whole, if the elder creditor should refuse to take his claim out of the proceeds, and suffer the sheriff to pay over the balance to the defendant, it would be a relinquishment of his lien as against the purchaser. Any capricious arrangements of that kind, to the direct injury of subsequent innocent creditors or purchasers, would be against equity.</p> <p>The counsel for the plaintiffs excepted to the charge, and, at their request, a copy of it was filed by the court.</p> <p>referred to the Act of 1700, Purd. Dig. 263. Act of 1705, sect. 3, 6, 7, Purd. Dig. 264. Semple v. Burd, 7 Serg. & Rawle, 286. Morris v. Griffiths, 1 Teates, 189. Nichols v. Posthlewaite,.2 Dali. 131. Bank of North■ America v. Fitzsimons, 3 Binn. 358.. Moliere v. Noe, 4 Dali. 450. 2 Binn. 40. 6 Johns, i?. 51, 53. 8 Johns. 361. 10 Johns. JR. 515. 5 Johns. Ch. R. 239. Whart. Dig. 209, No. 43. Young v. Taylor, 2 Binn. 218;</p> <p>cited Cowden v. Brady, 8 Serg. & Rawle, 513. Gause v. Wiley, 4 Serg. & Rawle, 539. Griffith v. Chew, 8 Serg. & Rawle, 28,30, 34. 2 A tie. 246. 19 Johns. 492. Govett v. Reed, 4 .Yeales, 461.</p>

IN ERROR. Writ of error to a special Court of Common Pleas of Mifflin county, in which the defendant in error was plaintiff, and the plain-tiffsin error defendants. .This cause was an ejectment brought in the year 1S01. It was tried several times. The first trial took place in the Circuit Court of Mifflin county, on the 26th of May, 1802, when the jury was discharged by consent, in consequence of not being able to agree.

<p>IN ERROR.</p> <p>On the return of a writ of error from the Common Pleas of Union county, it appeared from the record, that this was a special, action on the case, brought by Henry Kern, the defendant in error, against Henry Rerick, the plaintiff in error, for diverting a water-course, in consequence of which he lost the use of his saw mill. The defendant pleaded, not guilty.</p> <p>The material facts, proved on the trial, were, that some years before the institution of the suit, Henry Kern, the plaintiff below, being about to erect a saw mill on a stream which was designated by the witnesses as the right hand stream, a better seat for the mill was found by his millwright on what was termed the left hand stream. Kern thereupon applied to Rerick for permission to turn the water into the left hand stream, which was granted. In consequence of this permission, he built the saw mill upon the left hand stream. Without the aid of the right hand stream, the water of the left hand stream would have been wholly insufficient, but the right hand stream alone, would have served the purposes of the mill three or four months during the year. By a union of the two streams, the mill was rendered about a third more valuable than it would have been, with the right hand stream alone. No deed was executed, nor was any consideration given, butlfem, in consequence of the permission given by Rerick, built a very good mill, which did a great deal of business, and which he would not have built on the left hand stream, if the permission had not been given. When the water was turned away by Rerick, the mill was in good order, and it was further proved, that, at the time the trial took place, there was as much or more water in the left hand stream, than there had been before the erection of the saw mill.</p> <p>The President of the Court of Common Pleas (Chapman) charged the jury as follows:—</p> <p>“Two questions arise in this cause. The first is, whether Henry Rerick, after permitting and agreeing that Henry Kern should turn the water from the right hand stream to the left hand stream, when, if he had not given that permission, he would have built his mill upon the right hand stream, can he Henry Rerick, afterwards withdraw his permission, and thereby destroy the use of Kern’s saw mill. His withdrawing that permission after the mill was built, by removing the stones laid for the purpose of turning the water, if the jury believe these facts, would be a fraud and imposition upon Henry Kern, and he would have no right to remove them. But, if he had withdrawn his permission, and removed the dam before Henry Kern was at the expense of building a mill, he would have been justifiable in so doing. Or if the permission was by parol to enjoy a right which .could only pass by grant for a consideration, it would be within the statute of frauds and perjuries, and not good in law. But if the jury believe the act was fraudulent in Henry Rerick, he is liable to pay damages to Henry Kern for the injury done him. Of the amount of damages the jury are the judges. The second question, — if the jury believe that no fraud has been committed by Henry Rerick, is, did Rerick, by removing the dam, divert the water from the left hand stream, so as to leave less water running in the left hand stream than there was formerly before the dam was erected ? This is a fact for the jury, and if the jury believe that Rerick has diverted the water from the ancient channel, which he had no right to do to the injury of Kern, and that Kern has suffered damage thereby, the jury are to determine to what amount, if any damage the plaintiff has suffered,”</p> <p>The court was requested, by the counsel for the defendant, to , instruct the jury in the following manner:—</p> <p>“1. That if Rerick, about the year 1811, did allow the plaintiff, as proved by William Teats, to place an obstruction in the natural channel of one branch of the stream on Rerick’s own land, yet that being without any consideration, and merely by parol, no legal right to the stream, or the use thereof, passed thereby to Kern, but Rerick had a right, at any time, to remove the said .obstruction, so that the water could flow at any time in its natural channel.</p> <p>Answer. “ In answer to the first question, — he would have a right to remove the said obstruction, before Kern had incurred the expense of building a saw mill on the faith of Rerick’s promise, or he would have had a right, if the permission or promise had been after the building of the mill, but not after he had induced Kern to be at the expense of building the mill.</p> <p>“2. That an action for diverting an ancient water-course, does not lie for removing an artificial obstruction from the natural channel, whereby the water was made to flow as it used to do from time immemorial.</p> <p>Answer. “That is the general principle of the law; but to this there are exceptions, where, by so doing, the party commits a fraud, and an action will lie.</p> <p>“3. That if the jury believe the whole évidence exhibited by the plaintiff in this cause, Rerick could legally, in the fall of 1821, remove the dam placed in the forks of the stream, by Kern on Rerick’s land, and for removing the same no action lies, whether Kern sustained thereby a loss or not.</p> <p>Answer. “If the jury believe that there was no fraud in Re-rick’s removing the dam, in which case he would have a legal right to do it, no action would lie.</p> <p>“4. That if the jury believe the water, ever since the removal of the obstruction at the forks, has run, and continues to run, in its natural channel, as it used to do from time immemorial, their verdict should be for the defendant.</p> <p>Answer. “If the jury so believe, and that no fraud was committed by removing this obstruction, or dam, then your verdict should be for the defendant.”</p> <p>The counsel for the defendant excepted to the opinion of the court, both in their charge to the jury, and in their answers to the several propositions submitted to them.</p> <p>1. The plaintiff below, not satisfied with the great benefit he has derived, during a period of ten years, from the license granted to him by the defendant, wishes to establish it in perpetuity. To this he is not entitled. The bare permission to erect a dam on the defendant’s land, without deed and without consideration, will not deprive the defendant of his property. The right to a water-course, is an incorporeal hereditament, which will only pass by deed, and cannot be claimed under a parol grant. Angelí on Water-courses, 41. 3 Bac. Ab. 386. Where, indeed, a valuable consideration passes, and the agreement is executed, which was the caáe in Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241, an interests vests.. In the case before the court, there was no contract, nor was any con-sideratiomgiven by the plaintiff below; the defendant, merely from gotfiTwili, having permitted him to keep up the dam, for the use of his mill, until his own interest called for a revocation of the permission. In Dexter v. Hazen, 10 Johns. 246, the defendant gave permission to the plaintiff to pass over his land with teams, &c. There was no consideration for the license, and it was held, that it might be revoked at pleasure. So, where the defendant agreed by parol to permit the plaintiff, for a guinea, to lay a tunnel over his grounds in order to draw water to the plaintiff’s mill, and the guinea was not paid, the defendant having refused to receive it when it was tendered, Lord Et.lekborough decided that the permission was revocable, and gave no title in point of law to the plaintiff. If the judge had charged, that the license could not be withdrawn until the plaintiff had derived benefit from his mill'equal to the expense he had been at, there would have been no cause of complaint; but to go farther was error.</p> <p>2. There was no evidence of fraud, and yet the court left it to the jury to presume fraud. Where there is no dispute as to facts, fraud is a question of law. Sturtevant v. Ballard, 9 Johns. 342. If it be left to a jury to decide what is fraud, there will be no certainty as to property in Pennsylvania.</p> <p>Before the plaintiff below went to the expense of building his mill, he obtained the defendant’s consent to make the dam, and if he had not obtained this permission, he would have built upon the other stream. The plaintiff was employed during a year in building the mill, and the defendant was a witness to the prosecution of the work. It would be unjust to suffer the defendant, under such circumstances, to retract the license he had given. The case is quite different from that of a privilege to pass over another man’s land, in reference to which no expense could have been incurred. If the plaintiff was induced to go into any expense, however small, by the license and encouragement of the defendant, that license can never be revoked. If it can be revoked at the end of ten years, it may at the end of ten months, or ten weeks, or immediately, which will scarcely be pretended. This case resembles a parol sale or a parol gift of land, accompanied with possession. If a father make a parol gift of land to his son, and possession be delivered, and improvements are made by the son, it is good. Syler v. Eckhart, I Binn. 178. It is a fraud for a man to conceal his title, while he sees another by mistake build on his land. 3 Bac. Jib. 301. A parol license, given to put a shed over an area, cannot be retracted without paying the expenses incurred in consequence of the license. 2 Esp. N. P. (Gould’s Ed.') 268, (636.) The same principle is laid down by Judge Duncan, in Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241. At all events, the plaintiff should not be permitted to retract his license, without indemnifying the plaintiff. He should at least place him in as good a condition as he would have been in, if the license had not been granted.</p>

IN ERROR. This was a summons in ejectment, brought by the defendant in error against the plaintiff in error, in the Court of Common Pleas of Northumberland county, under the act of the 21st of March, 1806. At April Term, 1823, the writ was returned, “served;” and, at the same term, on motion, judgment was entered against the defendant, by default. was, that judgment by default had been entered at the first term, whereas the act of the 21st of March, 1806, Purd.

<p>IN ERROR.</p> <p>■ Writ of error to the Court of Common Pleas of Bradford county.</p> <p>brought this action against Isaac Tompkins, the plaintiff in error, an.d filed a declaration containing five counts. The first three, which nearly resembled each other, alleged, that Saltmarsh delivered to Tompkins, at Georgetown, in the District of Columbia, five bank-bills of fifty dollars each, to be conveyed.by him to Athens, Bradford county, Pennsylvania, there to be delivered to the plaintiff; that the defendant undertook safely and securely to keep the said bills, and safely to deliver them to the plaintiff, but that by his carelessness, negligence, and mismanagement, they were wholly lost to the plaintiff. The fourth count was for two hundred and fifty dollars, money had and received by. the defendant to the use of the plaintiff, and the fifth on an insimul computassent.</p> <p>The case, as.-proved on the part of the plaintiff, was, that he delivered to the.defendant the bills enclosed in a letter to D. Jilanson Saltmarsh, to be delivered -to him at Jit he ns, and that the letter never was delivered to him: This was proved by I). A. Salt-marsh himself, who stated that he had some conversation on the subject with Mr. Tompkins, on his return. ■</p> <p>The defendant, after having proved that a valise,, which he had borrowed of a friend, and which was produced in court, was-sound and whole when he received it, and that when it was returned two of the loops were cut in such a manner that the hand might be introduced into it, offered in evidence the deposition of Dana S. Upson, taken in Philadelphia, \a February, 1824, to.those parts of'which,-printed in italics, the counsel for the plaintiff objected, and they were rejected by the court, who sealed a bill of exceptions. The parts excepted to are so connected with the rest of the deposition, that it is necessary to give the whole of it. -It was in these words:—</p> <p>“ That a man of the name of Tompkins lodged with him, (the deponent,) about a year ago last December, according to the best of his recollection, a day or two, and then left for New York, as he stated. He was a tall young man, from twenty-seven to thirty years of age, and wore a white hat. One or two days elapsed, and he wrote deponent a letter by mail, stating he had met with the loss of a sum of money. The same morning on which deponent received the letter, he stepped over to Solomon Mien’s office, and saw a letter which Mr. Tompkins had written to him. Deponent thinks it was on Monday morning; Mr. Mien asked deponent about it. The same day on which deponent received the letter, or on the nest, but deponent thinks the same day, Mr. Tompkins came to deponent’s house again, and made a short stay. Mr. Tompkins stated, that he had been robbed of a stem of money, and seemed to think it had been stolen in deponent’s house; that he did not examine his baggage from the time he left deponent’s house, until he had got to New York. He stated he should not feel so unpleasantly about it, if it were his own; that it had been sent by another man. Deponent has examined for the letter he received; he thinks it contained the same account of the transaction which Mr. Tompkins after-wards gave in conversation. Deponent further states, that the first time Mr. Tompkins came there, he occupied room No. 9, and does not recollect he took a room .the second time he came. The room in which Mr. Tompkins lodged', if he lodged in No. 9, as deponent thinks, has four beds in it; if in No. 11, but one bed. It it is probable there were other persons in No. 9, the same night. Deponent further states, that it is the custom of the house to send the baggage of persons stopping there, immediately to the room in which they are to sleep, and it is not customary to take the baggage to any particular room, or to lock it up. Deponent thinks it would be perfectly sáfe, and no mark of negligence for any person arriving ut his house to have his baggage taken to his room, and there leave it until bed-time. Tf Mr. Tompkins lodged in No. 9, as deponent thinks, he would not have been at liberty to lock the door and take the key away. Deponent further states, that Mr. Tompkins appeared much concerned at the loss, and was anxious to take all means to trace the money, as any one would be in a similar situation. Deponent further states, he keeps the hotel in the city of Philadelphia called Judd’s Hotel, and that he kept it in December, 1822.</p> <p>“ Deponent being cross-examined, says, he does not distinctly remember at w'hat time of day Mr. 'Tompkins first arrived at his house: he thinks, however, it was by the Baltimore boat, about ten o’clock in the morning. He does not remember any thing in relation lo Mr. Tompkins’s baggage, exeept what he learned from conversation with him, when he came the second time. He does not know that Mr. Tompkins requested the bar keeper to take care of his baggage, or any thing belonging to him. Deponent says, there were locks both on the rooms No. 9 and 'No. 11, at least deponent presumes so, as there were locks on the rooms generally. Deponent says, unless the house is very full, a single bedded room can generally be had, if called for. He thinks that in December, 1822, Mr. Tompkins could have had such a room, if he had asked for it. He does not know, as he has said before, whether Mr. Tompkins roomed in No. 9 or No. 11. Deponent knows nothing of the situation of Mr. Tompkins’s baggage in his room, or how long he was absent from the house while in Philadelphia. Mr. Tompkins left Philadelphia for Neto York, at twelve o’clock in the day time, in the Union Line steam boat. Deponent does not know whether Mr. Tompkins made any purchases in Philadelphia, or whether he left a bundle or any thing else in possession of the bar keeper. Deponent presumes that when Mr. Tompkins went to New York, the porter of the house, James Brady, took his baggage out of his room. When Mr. Tompkins returned from New York, he was not altogether positive in his assertions that he had lost the money in deponent’s house, but he seemed to be of that opinion. He- said he had not opened his baggage from the time he left deponent’s house, till after he arrived in New York. When he left Philadelphia the second time, he did not express any dissatisfaction with deponent’s conduct or house. Deponent cannot say that Mr. Tompkins said the money was lost in Philadelphia- Deponent .does not remember that Mr. Tompkins told him his valise had been cut. lie does not remember, either, what particular article of baggage Mr. Tompkins spoke of, when he mentioned his baggage.”</p> <p>The defendant’s counsel then offered in evidence, the letter referred to in the preceding deposition, which was objected to by the counsel for the plaintiff, and rejected by the court. It was as follows:—</p> <p>“ New York, Dee. 11, 1822.</p> <p>te Mr. Upson: — Dear sir, When I take into consideration all the circumstances relative to the loss of my money, the conclusion that it was stolen at your house fixes itself irresistibly upon my mind. From the time I left the city of Washington, until I arrived at Philadelphia, my valise was not out of my possession long enough at a time for any one to have committed such a depredation, and it seems impossible it should have been done on board the boat, inasmuch as it stood near the entrance into the cabin, within eight feet of the helmsman, the whole way, on board of both boats. And in the room into which my baggage was taken here, there were two very respectable merchants from JLlbany writing in the room all the afternoon. The robbery was unquestionably committed at your house, by some person who has access to your rooms, - either some of your boarders or servants. Be so good as to watch upon them. It was taken, most likely, on Thursday evening, perhaps on Friday morning. If you receive information on the subject, be so good as to lose no time in communicating it to me at Jtthens, Penn. ' Yours, respectfully,</p> <p> t£Isaac Tompkins.” </p> <p>The deposition of Jibisha Jenkins, the master of a steam boat between Philadelphia and New York, was then offered in evidence by the counsel for the defendant, objected to by the plaintiff’s counsel, and rejected by the court, to whose opinion exception was again taken. This deposition was as follows:—</p> <p>“Jibisha Jenkins, mariner of Philadelphia, aged forty-four years and upwards, a witness produced on the part of the defendant, in the above suit named, being duly sworn, deposeth and saith; that, from the best of deponent’s recollection, about two years ago a young man came on board the steam boat Philadelphia, and went on to New York. In a very few days, perhaps the next day or the day after, the same man came on board the boat again at Philadelphia, to inquire whether deponent knew any thing about some money which he had lost. He stated, that, he had arrived in Philadelphia and pul up at Judd’s Hotel; that he had there opened his valise to change his clothes-, and that he did not open it again until he arrived in New York. He further stated, that at New Brunswick he had taken his valise into the room with him. His inquiry of this deponent was, whether the valise could possibly have been opened, on board the steam boat at dinner time. Deponent replied, that he thought it impossible that it could have been done On the passage, as a roan was always at the helm, and the baggage directly in front of him. He stated to this deponent the amount of the money lost, but deponent does not now recollect the sum. Deponent thinks he saw the valise, and the manner in which it was cut, but is not clear in his recollection. Deponent does not recollect that he stated he had lost any of his own money at the same time. Deponent recollects that the young man took a list of the passengers from the books of the boat, and thinks the paper now shown to him and marked A., is the same list.. Deponent knows that the list must have been taken from the books of the boat, but the books of the boat containing the names of the passengers are now at Trenton, and the deponent cannot refer to them. Deponent cannot recollect the name of the young man, nor can he recollect where he stated he was from. Deponent does not think that leaving a valise with the rest of the baggage would be at all unsafe aboard the boat. Deponent does not think-it would be an act of negligence or carelessness to leave baggage in the cabin, or any other part of the boat on her passage. Deponent further states, that the young man told; him he had not discovered that the money was lost,, until he had arrived at New York. Deponent thinks he stated he had been out in New York before he discovered the loss, and that he returned to Philadelphia in pursuit of the money by the first conveyance from New York. The deponent further states, that the young man expressed some anxiety upon the subject of the loss, as much so as the occasion called for.</p> <p>(Signed) “ Jibisha Jenkins.”</p> <p>The plaintiff declined a cross-examination, and reserved the right of excepting to this deposition, in whole or in part, on the trial of the cause.</p> <p>The defendant’s counsel proposed to ask D. A. Sallmarsh, on his cross-examination, what reason the defendant gave him, on his return to Athens, for not delivering the money, and what account he gave of the matter. They proposed to ask the same question of Ebenezer Bockius, a witness on the part of the defendant, and they proposed to examine Isaac Tompkins, the defendant, to prove that he had been robbed of the money committed to his care by the plaintiff, while on his way from Georgetown to Athens.</p> <p>To the evidence thus offered, the counsel for the plaintiff objected, and the court sustained the objection. A bill of-exceptions was taken to their opinion.</p> <p>In this court, errors were assigned in the admission of the testimony, stated in the several bills of exception returned with the record.</p> <p>cited, 1 Phil. Ev. 218, 219. Meeker v. Jackson, 8 Yeates, 442.</p>

<p>IN ERROR.</p> <p>On a writ of error to the Court of Common Pleas of Hunting-don county, it appeared that this was an action of debt, brought by the Huntingdon Bank, against John Lyon and Robert T Stewart, the plaintiffs in error, who were defendants below, on a single bill for seven thousand three hundred and ten dollars, dated the 20th of January, 1818. The defendants pleaded payment, with leave to give the special matter in evidence, whereupon issue was joined. Notice, agreeably to the rule of the 'Court of Common Pleas, was given by the defendants to the plaintiffs, of the special matter intended to be given in evidence. On the trial of the cause, the plaintiffs objected to the evidence, and the court sustained the objection, and rejected it. The opinion of the court was excepted to by the defendants, and the question before this court was, whether the evidence was admissible. The special matter was placed on the record; but it is necessary only to mention so much of it as is necessary to explain the opinion of the court. Some time in the year 1814 or 1815, William Patton was in possession of sundry judgment bonds from Edward B. Patton and Robert Porter, amounting to nearly eleven thousand dollars principal, besides con- . siderable arrears of interest. These bonds, were payable to William Patton, at different periods, in the years 1816, 1817, 1818, and 1819. William Patton produced the said bonds to the officers of the Huntingdon Bank, and proposed that the bank should make him a loan often thousand dollars, solely on the credit of those bonds. After some consideration, the officers of the bank informed him that he should be accommodated with ten thousand dollars,.solely on the credit of the said bonds, which were considered as sufficient security, and would be received entirely at the risk of the bank; but that it would be necessary, in compliance with the rules of the bank, for form’s sake, to put in his note for ten thousand dollars with an indorser; that neither he, nor his indorser, should ever be considered as liable on the said note, or any other note which might be put.in for the renewal of the same; that the said note might be renewed from time to time, until all the said bonds should become due, or so many of them as would be sufficient to discharge the said note, which should then be considered as cancelled; and, further, that the bank would never make any call for the payment of the said note, or any note put in for its renewal, nor would they insist on the said William Patton, or any person for him, paying the discounts on the renewals of the said note, without the consent of the said William Patton, and in no event would the said bank bring suit on the said note,, or any other which might be put. in for the renewal of it; but the said note,’and all others put in for the renewal of the same, should be considered merely matters of form, without any responsibility. On this condition, the said William Patton agreed to lake the said loan, and assigned the said judgment bonds to the bank under his hand and seal, in the presence of two subscribing witnesses. In pursuance of the aforesaid agreement, the said William Patton put into the bank his note for ten thousand dollars, indorsed by Edward B. Patton and John Lyon, one of the defendants, who, previous to their indorsement, had been informed by William Patton of all the circumstances of the agreement between the bank and him; and the .said Lyon became an indorser, in consequence of his understanding that he was never to be called on for payment, and would not otherwise have put his name on the said note. This note was from time to time renewed, with the same indorsers, until about the 3d of September, 1816, when it was reduced, by partial payments, to seven thousand three hundred and ten dollars, for which sum William Patton put in his note, with the same indorsers'. This last note was renewed several times, with the same indorsers, when William Patton became insolvent. It was then renewed, the said Edward B. Patton and John Lyon being the drawers, and Robert T. Stewart, (the defendant,) the indorser, without any alteration of the condition on which the original note was given. " Some time after this, the bank, to avoid the expense to which their debtors were put, by the stamp du.ties imposed by a law of the United States, made a rule, that notes should be put in under seal, with the former indorsers as securities. In compliance with this rule, the defendants gave their single bill without any alteration of the original terms on. which William Patton’s first note was given. The single bill of the defendants, on which this suit was brought,, was for a balance on the note for ten1 thousand dollars, originally put in by the said William Patton, indorsed by Edward B. Patton and John Lyon, as before mentioned. And, moreover, it was intended to be proved, that a very considerable loss had been sustained, in the said assigned bonds, by the negligence of the officers of the-'bdnk.</p> <p>All this evidence was rejected, on the principle of its being improper to admit parol evidence, for the purpose of altering or affecting the substance of a written instrument.</p> <p>being about to commence his argument, The Court desired to hear the counsel on the other side; upon which, Patter,-(with whom was Hale,') for the defendant in error, observed, that when the defendants below executed the single bill, upon which this suit is brought, they knew that no judgments had-been entered on the bonds which had been received by the bank. They knew, also, that judgments had been entered by other persons, against the obligors in those bonds. In short, they knew the principal matters upon which they now depend for their defence. The notice of special matter does not state that the obligors in this bill had any communication with the bank previous to their execution of the bill. ■ No parol evidence is admissible to destroy .a sealed instrument, such as that upon which this suit is founded. All the judges of this court have expressed their regret, at the length to which parol evidence has been permitted to go in Pennsylvania, to affect written instruments, and their determination to go no further. A review, however, of the adjudged cases, will show that they have never yet gone'the length now required. Wallace v. Baker, Í Bimi. 610 Church v. Church, 4 Yeates, 280. Thompson v. White, 1 Ball..424. Field v. Biddle, 1 Yeates, 132. MlMeen v. Owen, 1 Yeates., 138. Litle v. Henderson, 2 Yeates, 298. Dinkle v. Marshall, 3 Binn. 588. Christ v. Dijfmhach, 1 Serg. & Bawle, 464. Barndoller v. Tate, 1 Serg. & Raiole, 160. Cozens- v. Stevenson, 5 Serg. & Bawle, 424. Campbell v. MlClenachan, 6 Serg. & Bawle, j.71. 6 Serg. & Bawle, 410. 7 Serg. & Bawle, 115. The case of Heagy v. Umberger, 10 Serg. & Bawle, 339, bears a close analogy to this. There, the plaintiff sold to the defendant a horse, and received from him an assignment- of a single bill, to be taken at his risk; and parol evidence that, at the time of the execution of the assignment, the assignor undertook that the obligor in the bill should be good for the money, was rejected. There was no allegation of fraud, and the action was assumpsit.</p>

IN ERROR. Error to the Common Pleas of Susquehanna county. On the trial of this cause, in the court below, several bills of exceptions were tendered by the counsel for the defendant below, the plaintiff'in error, to the opinion of the■ court, in permitting the plaintiff to amend his declaration, in the rejection of testimony offered by the defendant below, in refusing to permit the defendant to amend his pleas, and in the answer given to a question of law submitted for…

1ST ERROR. This was an action on the case, brought in the Court of Common Pleas of Huntingdon county, by John Crawford, the defendant in error, against William Jackson, the plaintiff in error, who was defendant below, ft appeared, by the evidence attached to the record', that Crawford had a debt due to him from a certain John Beatty, to whom a debt Was due from the defendant Jac-kson, .who had obtained a judgment against Gershom Lambert.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Centre, county, in an action brought by the plaintiffs in error against the defendant in error.</p> <p>cited, in reference to the question decided by this court, 1 Johns. 316. M‘Cor-kle v. Binns, 5 Binn. 351. Co. Litt. 157, b. Bull.N. P. 307.</p> <p>citéd, 1 Trials per Pais, 189. Hawk: Ch. 43, sect. 28, 29. 3 Bac. M. 758. 1 Burr’s Trial, 44, 419,-420. 1 Chitty's Crim. Law, 441. 8 Johns. 445.</p>

IN ERROR. brought this action of debt in the Court of Common Pleas of Mifflin county, against John Campbell, the defendant in error, upon a bond given by the ‘latter to the former, dated the 2d of April, 1812, conditioned- for the payment of two hundred pounds on the l’st of April, 1817, The consideration of this bond was part of the purchase monéy of a tract of land, which Frederick, by an article of agreement, bearing date the 28th of November, 1811, had contracted to sell…

IN ERROR. On a writ of error to the Court of Common Pleas of Mifflin county, it appeared that this was an amicable action of debt, in which John MlDowell and Robert M‘Clelland were plaintiffs, and Robert Cooper, James Chrisioell, and David Mitchell, administrators of William Mitchell, deceased, defendants, to recover the balance due upon a bond given by the defendants’ intestate to the plaintiffs, dated the 29th of March, 1813, and conditioned for the payment of six hundred…

<p>In an action by A., the defendant cannot set off an account for goods sold to A. and B. as partners.</p>

<p>IN ERROR.</p> <p>On the return of a writ of error ,to the Court of Common Pleas of Tioga county, it appeared, that this was an action of ejectment, brought by John Ives and others, the plaintiffs in error, against Thomas Led and others. On the trial of the cause, in the Court of Common Pleas, it was proved by the defendants, that, in a former ejectment for the same land, in which they were plaintiffs, and the present plaintiffs were defendants, a verdict and judgment had been given for them, (the now defendants,) and that afterwards the now plaintiffs brought an ejectment against them, which was arbitrated under the compulsory arbitration act; and a report returned and filed in the prothonotary’s office, in favour^f the defendant's. From this report^ the plaintiffs appealed to tne Court of Common Pleas, where they suffered a nonsuit. On this evidence, the Court below instructed the jury, that the plaintiffs’ action was barred by the act of the 13th of Jlpril, 1807, (4 8m. L. 476,) and the counsel for the plaintiffs excepted to their opinion.</p> <p>By the act of the 13th of Jlpril, 1807, (Purd. Dig. 204,) two verdicts and two judgments in ejectment are conclusive; but the defendants, having had only orle verdict and judgment, and one award of arbitrators, from which an appeal was entered by the plaintiffs, who afterwards suffered a nonsuit, the case does not fall within the meaning of the act of assembly. This act is in derogation of the common law, which does not restrain the bringing of actions of ejectment. An injunction has been refused in equity against a plaintiff in ejectment, after having failed in five suits. 2 Eq. Mi 243. The letter of the law should therefore be adhered to, and no equitable construction admitted. 4 Bac. M. 650. Hammond v. Webb, 10 Mod. 282. 3 Leon. 133. 4 Dali. 64. Johnson v. Blaines’s Lessee, 3 Binn. 103. It is clear, that the case is not within the words of the law; nor is it within its spirit, because, however unjust and illegal the proceedings of the arbitrators may have been, there can be no redress, unless an error appears on the face of the award. In a proceeding under the compulsory arbitration act, a landholder residing at a distance, is subjected to the greatest difficulties. . Arbitrators are chosen after fifteen days’ notice, a period scarcely sufficient to enable the tenant to give notice to his landlord, whose case must often-be heard under great disadvantages. Nor is there any remedy for the evil. Where there has been an erroneous verdict, the whole matter may be reviewed by the court, on a motion for a new trial; but this species of relief is not open to one who has been aggrieved by an award of arbitrators. The eases of a verdict and an award are not parallel. A report of referees, under the act of 1705, may perhaps be equivalent to a verdict, because the act of assembly expressly puts it on the footing of a verdict. But it is to be remembered, that such a reference is voluntary, and no judgment is entered on the report, until it has been approved by the court, and if the proceedings have been against law, or even if there has been a manifest mistake in point of fact, the court will not confirm it.</p> <p>The question is, whether a report of the arbitrators is equal to a verdict and judgment, under the act of the 13th of Mpril, 1807. The object of the act of assembly was to make an end of ejectments after two trials, and it is immaterial whether these trials be by juries or by arbitrators. The act of March, 1810, gives to an award of arbitrators the effect of a judgment, and makes it a lien, upon real estate. The judgment, therefore,'has precisely the same force in other respects as if it had been entered on a verdict, and no good reason can be given why it'should not operate in the same manner upon the rights of a plaintiff in ejectment.</p>

<p>M., being the holder of a bond against W., assigned it equitably to B., \Vho gave notice of the assignment to W., the obligor, who acknowledged that it was a just bond, and promised to pay it, deducting certain credits to which he was entitled. It was agreed, that these credits should be adjusted between B. and W., and W. was warned to pay no other person than B. At the time of the assignment, B. gave to M. a writing, stating that there appeared to be due to M. on the bond, two hundred and fifty-seven dollars, deducting one hundred and seventy-three dollars and fifty cents on W’s. account, B’s. account being also deducted. This writing M. assigned to C., and ordered two hundred and fifty-seven dollars of the principal of the bond to be paid to C. It turned out that there was an error in the calculation', on which the writing given by B. to W. was founded, W. having paid to M., before the assignment to B., seventy dollars more than the writing stated. W. paid to C. the full sum of two hundred and fifty-seven dollars, (seventy dollars more than M. had a right to assign to him;) and, in an action on the bond, brought by M. for the use of B., it was held that W. was responsible to B. for this sum of seventy dollars paid to C.</p>

<p>An aUol'ney'ut law, on record, is authorized to do those things only, which pertain to the conducting of the suit; and has no power to make a compromise by which land is to be taken instead of money.</p> <p>The Court of Common Pleas has no right to set aside a judgment entered upon a verdict, without setting aside the verdict also.</p>

<p>A party who joins in a commission and examines witnesses upon crpss-intetrogato* ries, cftnnot, upon the trial of the cause, object that the interrogatories of the other party are leading in their character.</p> <p>If, upon-the execution of an assignment of a bond and mortgage under seal, and in tlie presence of two witnesses, which neither contains a guarantee of the sufficiency of the mortgaged premises and the solvency of the mortgagor, nor states that it is without recourse to the assignor, the assignor declare, that the mort- ■ gaged premises are worth double the sum for which they are mortgaged, that the mortgagor is .solvent and able to pay the debt, and that if he should tail to ■ do so, he, the assignor will be accountable for it, and, upon being requested by the assignee to have the guarantee reduced to writing, lie reply, that it is unnecessary, that there are witnesses present who can establish the fact, an action of assumpsit may be maintained’by tlie assignee against .the assignor, upon this parol guarantee.</p> <p>It is no objection to such an action, that no notice was given to the assignor of the failure of the mortgagor to pay the debt, or of the sale under the .mortgage; unless it appear that the assignor was prejudiced by want of notice, or could-have received any benefit from notice.</p> <p>The act of limitations does not begin to run against a parol guarantee of the sufficiency of a mortgage, given to secure a bond payable by instalments, and of the solvency of the mortgagor, until six years after the last instalment has become due.</p> <p>It is not an infraction of the law, for a person -holding the Pennsylvania title, to agree with a settler under a Connecticut title, for the surrender of his possession, . on paying to him a compensation for his improvements, buildings, and crop in the ground; and where the fact, whether the contract was for the purchase of flic possession and improvements, or of the title to the land, depends, as well upon other evidence, as upon writings, it is proper fo submit the question to the decision of the jury.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Tioga county, in an action of debt brought by Israel Bulkeley, the defendant in error, against Groves Gordon, the plaintiff in error, upon a bond, purporting to have been given by John Gordon and the said Groves Gordon, to the said Israel Bulkeley, constable of Tioga township, in the county of Tioga, for one hundred and fifty dollars, conditioned that the said John Gordon should appear at the next Court of Common Pleas of Tioga county, to abide the final decision of the said court, &c., and to comply with all things required by law to procure his discharge, under the acts of assembly for the relief of insolvent debtors. The bond was. signed and sealed by John Gordon, and acknowledged by him alone before a judge of the court; and it appeared that the name and seal of Groves Gordon were affixed in his absence, in pursuance of a parol authority from the said Groves Gordon, the surety and co-obligor in the •bond.</p> <p>The defendant pleaded, non esf factum; and, upon this issue, the court below was of opinion, that the bond was well executed by the said Groves Gordon.</p> <p>cited, Cooper v. Rankin, 5 Binn. 615. Co. Litt. 48, b. ' 1 Bac. Jib. 199, 287. Bellas v. Hayes, 5 Berg. & Rawle, 437. Big. Dig. Mass. Rep. 28, No. 1, 4. *</p> <p>cited, Stahl v. Berger, 10 Serg. & Rawle, 170. .</p>

<p>IN ERROR.</p> <p>.Writ of error to Mifflin county.</p>

<p>IN ERROR.</p> <p>On the return of the record of this case, from the Court of Common Pleas of Northumberland county, several errors were assigned,</p> <p>The opinion given by this court, however, renders it unnecessary to state them.</p>

IN ERROR. ON a writ of error to the Court of Common Pleas of Lyco-ming county, if appeared that Daniel Landon, the plaintiff below and defendant in error, brought this action on the case against Joseph Williams and William Fulmer, supervisors of Loyalsock township, for the recovery of one hundred and forty-five dollars and sixty-two cents, due to him as a former supervisor of the same township.

IN ERROR. On the return of a writ of error from the Court of Common Pleas of Butler county, it appeared that this was an ejectment, brought by Adam, Albert, the defendant in error, against the plaintiff in error, James Biddle, for two hundred and fourteen acres of land lying west of the river Allegheny, in Muddy Creek town-ship, in the said county.

<p>Oil an award of arbitrators in trespass quare clausum fregit, in favour of the plaintiff for one dollar and the costs of suit, the plaintiff is entitled to full costs.</p>

<p>Sales of unseated lands for taxes, in the counties of Beaver and Butler, under the act of the 26th of February, 1817, are subject to the provisions of the act of the 13th of March, 1815: consequently, the omission of notice, required by the act of 1817, does not vitiate the sale.</p>

<p>IN ERROR.</p> <p>Writ of error to the-Court of Common Pleas of Butler county, in an ejectment brought by Neil M‘Coy and Mary his wife, against Ephraim Turk.</p> <p>The facts of the case will be found, in the opinion delivered to the jury by the President of the'Court of Common Pleas, which was returned with the record, unaccompanied by a bill of exceptions or any other statement of the evidence.</p> <p>Shaeer, President. The plaintiffs derive title as the heirs at law of Thomas Tull, the patentee of the tract of land in controversy. The defendant, who is proved to be in possession of the contested premises, claims to hold by virtue of what is usually called a commissioner’s deed to David M‘Junkins, dated the 13th of dlugust, 1818, and transferred regularly to the defendant. This deed, notwithstanding numerous objections to its admission, which have been overruled by the court, to whose opinion various exceptions have been taken, has been admitted in evidence. Prima facie, it would furnish a complete defence to the plaintiffs’ action, but it is contended by the plaintiffs’ counsel, that it appears on the face of the deed that the purchaser, at the sales for taxes, bid an amount beyond what was necessary for the payment of the costs and taxes; and that for this surplus the treasurer omitted to take a bond, in conformity with the directions of the second section of the act of Jlpril, 1804, directing the mode of selling unseated land for taxes. The amount bid by the purchaser was fourteen dollars thirty-seven and a half cents Of this, the road tax amounted to five dollars, the county tax to five dollars and fifty cents; and the balance, of three dollars eighty-seven and a half cents, — is charged as the amount of costs, which, by the third section of the mandatory act of March 13th, 1815, and the first section of the act of March 19th, 1817, the purchaser was bourid to pay. If there was a surplus beyond the amount of taxes and costs, which the purchaser was bound to pay, he was bound to give the treasurer his bond for that surplus, however small; and, failing in so doing, he by such neglect makes void his title. This I take to be clear, and it is equally clear, that the treasurer cannot, by taxing such surplus in the costs of sale, whether by design or accident in receiving the same, preclude the original owner of an unseated tract from taking advantage of the defect,</p> <p>’ The treasurer, in the instance before us, in order to bring up the costs to three dollars eighty-seven and a half cents, has, as is alleged, introduced two items which, it is contended, he has no right to charge. These are twenty-five cents for drawing a bond, when no bond was drawn;'and one dollar to be paid to the pro-thonotary for entering the acknowledgment of the deed. This last item, it is contended, the purchaser is bound to pay, in addition to such part of the purchase money as is necessary to pay off the taxes and costs; and that this sum, instead of forming a part of the costs which the treasurer should have legally charged, was a surplus, for which a bond ought at the time to have been given. The impression which 1 have received from the argument, and from the examination I have been able to give the acts commented upon, is, that the one dollar to be paid by the purchaser for the use of the prothonotary, is exclusive of the amount of his bid; that the treasurer had no right to receive from the purchaser any greater amount of the purchase money than was necessary to pay the amount of taxes and the costs, exclusive of the sum which he was authorized to receive for the use of the prothonotary; that if he embraced, in the costs to be paid out of the purchase money, the prothonotary’s fee for entering the acknowledgment of the deed, he acted erroneously, inasmuch as such amount, so embraced, was a sqrplus for which he was bound to take a bond of the purchaser, and by such error the title of the purchaser is rendered null and void. It is for the jury to say, whether this item has been thus erroneously taxed by the treasurer in the bill of costs; if so, a surplus existed for which he ought to have taken a bond. The deed of the defendant becomes a nullity, and'the plaintiff is entitled to your verdict.</p> <p>The errors assigned in this court were,—</p> <p>1. The court erred in directing the jury, that the one dollar for the prothonotary was to be paid by the purchaser, over and' above his bid, and that that dollar was a surplus, for which a surplus bond should have been given by the purchaser.</p> <p>•2. The court erred in stating to the jury, that the twenty-five cents allowed in the fee bill of 1814, for taking and filing a bond for the surplus, was in this case a surplus for which a bond ought to have been taken by the treasurer.</p> <p>3. In leaving it to the jury to say whether the costs were erroneously taxed or not.</p> <p>referred to the Act of the 13th of March, 1817, sect. 1, Purd. Dig. 790. Act of the 28th of March, 1814, Purd. Dig. 283. Act of the 13 th of March. 1815, Purd. Dig. 787. Riddle v. Bedford County, 7 Serg. & Rawle, 390. Act of the 22d of February, 1821, Purd. Dig. 286.</p> <p>cited Sutton v. Nelson, 10 Serg. & Rawle, 238.</p>

IN ERROR. The record of this case having been returned on a writ of error to the Court of Common Pleas of Mlegheny county, accompanied by three bills of exceptions to the rejection of evidence offered by the defendants below, the plaintiffs in error, it appeared that the action in the court below was an ejectment, brought by John Van-hirh against Thomas Clarke and Robert Graham, to recover half of a tract of land in Elizabeth township, containing one hundred and thirty-two…

IN ERROR. On the return of the record of this case from the Court of Common Pleas of Indiana county, several errors were assigned, which were argued by White for the plaintiff in error, who cited Shelby V. Daly, 2 Sei’g. & Raíale, 548.

<p>On a writ of error to the Common Pleas of Washington county, it appeared by the record, that Robert M‘Clelland, the defendant in error, brought this action against John MtUlmont, the plaintiff in error, for defamatory words. The declaration contained two counts, in the first of which, the words were laid thus:</p> <p>“You are a thief, and I can prove it; you stole hides or leather out of your father’s tan vats in the night-time.” In the second count, the same words were laid in the third person.</p> <p>At. the trial, the plaintiff offered Isaac Griffith and Richard Chapman, to prove the facts hereafter stated. Their evidence was objected to by the defendant’s counsel, but the court admitted it, and exception was taken to their opinion. William Rankin testified, that in the month of October, 1823, after the election, he was at James Harwood’s, at a husking, in company with the defendant and several others : That whilst at supper, the defendant asserted that the plaintiff, after his removal to Burgettstown, came to his father’s in the night, and took or stole, (the witness could not say which was the expression,) a quantity of leather from his father’s vats: That the plaintiff took out the leather, and .filled up the vats with tan bark: That the defendant asserted “ he could prove this,” or that «it could be proved,” the witness could not say which expression was used, but he was confident it was one or the other.</p> <p>Isaac Griffith swore that he was at Harwood’s, on the occasion referred to by Rankin : That they were talking about the election, when it was asked, what Robert McClelland (who was stated in the ■ declaration, to have been a candidate for the office of sheriff,) could do with a certain M(Conehough, who had made charges against him: That the defendant said he could do nothing with him; for that he, the plaintiff, had either taken or stolen, (the witness, could not specify which of the expressions was used,) leather out of his father’s tan vats: That the witness observed, he did not count it stealing, as it was from the premises of McClelland? s father;-but M‘Jllmont, (the defendant,) said it made no difference, though the father did not prosecute: That some time after, MMrnont was at the witness’s house, with MlClelland: That he did not deny what the witness had reported him to have said at Harwood’s, except the circumstances of MlClelland,s going by night for the leather. Richard Chapman proved, tfyat after the institution of this suit, he heard the defendant say, that he could have no difficulty in proving that the plaintiff had stolen his father’s property.</p> <p>The plaintiff offered to prove, by James Ross and others, the situation of the defendant in point’ of property; to which the defendant’s counsel objected, but the court overruled the objection, and the evidence was given; upon which a bill of exceptions was tendered to the opinion of the court.</p> <p>1. The words proved by Rankin and Griffith, did not go to support the declaration. The declaration charges the defendant with having said, that the plaintiff stole the leather, and the witnesses were unable to say, whether he said that he had taken or stolen it. Words must be proved as laid, and words to the same effect, will not do. 2 Phill. Ev. 97. Words laid in the third person are not supported by evidence of words spoken in the second person. McConnell v. McCoy, 7 Serg. & Rawle, 227. Brown v. Lamberton, 2 Binn. 34. 3 Binn. 515.</p> <p>2; The evidence of Chapman went to prove words spoken since the commencement of the suit, which was incompetent, if the words laid in the declaration were not proved. In Wallis v. Mease, 3 Binn. 550, the Chief Justice declared, that if it had not been already determined, that words spoken since those laid in the declaration were evidence, he should reject them.</p> <p>3. The admission of evidence of the defendant’s situation, as respects property, was wrong. The plaintiff’s rank in life, may be given in evidence, because it is in issue. Learned v. Buffing-ton, 3 Mass. Rep. 552. But the condition of the defendant is a different matter. The injury to the plaintiff is no greater on account of the defendant’s estate; and, as the defendant has no notice of the evidence, he may be much surprised by it. There is no adjudged case or authority on the point; but the reasoning of Starkie, (1 Starkie on Slander, 402,) seems in our favour.</p> <p>It is enough if the witness proves the substance of the words laid in the declaration ; words, which in common parlance have the same import. Miller v. Miller, 8 Johns. 74. The declaration may lay, that the defendant c£ spoke words in substance as folloios.” Kennedy v. Low-ry, 1 Binn. 393. The objection that the witness was not sure whether the word took or stole was used, may be answered by saying, that this was a question proper for the determination of the jury upon a view .of the whole evidence.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Allegheny fin an ejectment brought by the defendants in error, William MJunkin and others, against the plaintiffs in error, Samuel Boss and others, for four hundred acres of land in Plumb township, bounded.by lands of John Brown on the south, the heirs of Hugh Davison on the east, Michael Coon and others on the north, and land in the possession of James O’Hara on the west.

<p>IN ERROR.</p> <p>Writ of error to Cambria county.</p>

IN ERROR. On a writ of error to the Court of Common Pleas of Armstrong county, it appeared that an action of debt was brought in the court below, to September Term, 1821, by Martha Steer, the plaintiff in error, for the use of Horatio Farrell, on a bond executed by Bernard Steer, her husband, and Isaac Townsend, the defendants in error.

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

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Westmoreland county, in an ejectment by Nathaniel M'Brier, the defendant in error, against Jesse Miller, the plaintiff in error •</p> <p>The plaintiff below claimed the land in dispute under an application dated the 4th of April, 1769, in the name oí John Fleming, a survey thereon, dated the 25th of June, 1772, and a patent to the plaintiff, dated the 29th of December, 1814, which recited a deed to him from John Fleming, dated the 18th of October, 1814.</p> <p>It appeared from evidence produced by the plaintiff, that the defendant had been in possession of the land in dispute for the space of twelve or fourteen years before the institution of the action, and had made improvements upon it. The plaintiff produced his patent to the defendant, and it was agreed, that it should be determined by referees what compensation the defendant should receive for the improvements he had made. The referees made no award, and the defendant received no compensation for his la-bour.' But an agreement was entered into, which the plaintiff alleged to be a lease, by which it was stipulated that the defendant should occupy the premises until the 1st of Jlpril, IS 16, and then give peaceable possession of them to the plaintiff. The defendant was_ afterwards asked by the plaintiff, at what time he intended to leave the place; to which he replied, that he was not ready then, but if he would give him nine or ten days, he would be ready.</p> <p>'The defendant offered in evidence the deposition of John flSk* nough, the object of which was to show that John Fleming, who originally located the land under the application given in evidence, was at so advanced an age, in the year 1769, that his death, before the title set- up by the plaintiff had accrued, might be fairly presumed by the jury, and that therefore the patent had been surreptitiously obtained. The plaintiff’s counsel objected to the evidence. The court rejected it, and sealed a bill of exceptions.</p> <p>The defendant then offered a witness to prove that the plaintiff had procured him to draw a deed poll for the land in dispute from a person who was not the owner of it; and that, upon the deed thus executed he obtained the patent which he gave in evidence. He further offered to prove that John Fleming, the original owner of the application,, had been dead upwards of thirty years before the trial of the cause. To all this evidence the plaintiff’s counsel objected; and, the court having rejected it, exception was taken to their opinion.</p> <p>In charging the jury, the court below said, “It is possible the plaintiff may have imposed upon the state, or rather upon a certain John Fleming, or his legal representatives; but of this you have no testimony. If, in rejecting what was offered on this subject, we have been mistaken in point of law, the defendant has a remedy in a higher tribunal, and we shall be happy, in that case, to have our error set right. There is certainly no testimony of any direct fraud or imposition of the plaintiff on the defendant at the time of the execution of the contract of lease. There may have been fraud, but there is no proof of it at this time. It is not to be presumed on slight grounds; still less on mere surmises, without any pregnant circumstances to support it. But even if the fraud did exist, and had been fully proved, it is one which principally affects another person or persons, and not the defendant. The defendant having voluntarily placed himself as a tenant, and acknowledged the title of the plaintiff, whatever it was,.or may hereafter turn out to be, his term having expired, and he having, after its expiration, asked for further time, which was granted, he ought not now to be allowed to call the plaintiff’s title sn question.” The plaintiff’s counsel excepted to this opinion of the court.</p> <p>1. The deposition of John Menaugh tended to show, that the defendant, who was a settler on the land in dispute, was induced to recognize the plaintiff’s title, in consequence of his false representation that he was the real owner. It ought, therefore, to have been received in evidence.</p> <p>■ 2. The evidence offered, to prove that the plaintiff had a deed executed by a person who was not the owner of the land, and that unon that deed he obtained his patent, would, have clearly established a fraud, and ought to have been admitted.</p> <p>3. The rejeetion of evidence of the death of John Fleming, the real owner of the location, long before his supposed deed poll bore date, was wrong; upon the same principle.</p> <p>4. There was error in the charge of the court below, that although the agreement between the plaintiff and defendant was without consideration and fraudulent, it was binding on the defendant. The agreement was not a lease, and did not create a tenancy, — to constitute which, there must be a render of rent or service. But, if it was a lease, the defendant is not estopped by it. A tenant or lessee may controvert the title of his lesssor, if the lease was obtained by force, fraud, or any unfair means. 2 Bl. Com. 41,59. 4 Binn. 283. 2 Binn. 468. Hamilton v. Marsden, 6 Binn. 45.</p> <p>Nothing can be more clear, than that a tenant cannot dispute the title of his landlord. Banders v. Fletcher, 11 Serg. & Rawle, 420. If, indeed, the lease be fraudulently obtained, the title may be controverted. But there was no fraud in making or procuring the lease in this case. The offer only was to prove, that the plaintiff obtained his patent upon a forged deed; a circumstance which did not affect the defendant, who had recognized that title.</p> <p>It is immaterial whether the agreement was a lease or not. It was a writing under seal, by which, in consideration of the improvements he had made upon the land, the defendant was permitted to retain the possession for a limited time, and then give it up to the plaintiff. No consideration was necessary, because the agreement was a sealed instrument. But if a consideration was necessary, the permission to enjoy the land until the next spring, and have the crop in the ground, was a sufficient consideration. He ought to be compelled to keep his faith by performing his 'contract.</p>

IN ERROR. Error to Venango county. brought this action on the case in the Court of Common Pleas of Venango county, against James Foster, the plaintiff in error, for maliciously and wrongfully suing out against him a writ of foreign attachment, when he was not, by law, liable to such process.

<p>IN ERROR.</p> <p>Ejectment in the Common Pleas of Mercer county, in whieh John Smith, the defendant in error, was plaintiff, and the plaintiff in error, John Moore, defendant.</p> <p>It appeared from the record, that the plaintiff below made out a title to lot No. 1028, in the Fifth Donation District, and the question which arose on the tria.1 was as to its locality. After having examined several witnessed the object of whose testimony was to show, that the tract for which the suit was brought was lot No. 1028, he offered in evidence the record of an ejectment brought by John Martin, jr., against William Smith, and the present plaintiff, John Smith, for a Donation Tract of land, which, it was admitted, Smith claimed under his title and patent for No. 1028. To the admission of this record in evidence, the defendant’s counsel objected, and the court overruled it.</p> <p>, The plaintiff afterwards produced as a witness, Mian Dunn, who after having stated, among other things in his examination in chief, that he was told both by Moore, the defendant below, and one Herrington, that .il/oore had purchased from Herrington one hundred and forty acres of lot No. 1028, which the witness surveyed off for him, testified in his cross-examination, that Smith lived on the land which Martin had recovered from him, claiming it as No. 1028, and, as far as the witness knew, ever since, and was, as he understood, the tenant of Martin. The record of the action of Martin against Smith was again offered in evidence, when it was objected to by the defendant’s counsel, but the court “permitted the said record to be given in evidence to the jury for some purpose; but, as to the effect and operation of it,” declared “that the parties were entitled to the opinion of the court in charge to the jury.”</p> <p>This opinion, which was excepted to by the defendant’s counsel, ivas the first error assigned in this court. , •</p> <p>In the course of the trial in the court below, the plaintiff produced a witness, who testified as follows: “ I was along when Sheriflf Sanhy’s jury, in the case of Herrington v. ’ Thompson and Bowman,.was upon this land, in 1807. Mr. Her-rington, John Moore, and many others, the neighbourhood generally, and Bowman were along; John Moore was 'then claiming the land where he now lives. I understood, from Moore and Herrington, that Moore’s father had bought of Her-rington upwards of one hundred acres of land for Moore. At the white oak on the district line, there whs a w.arm dispute between Herrington and Bowman; as to the number on the white oak: Herrington said it was 1028, Bowman contended that it was the corner of 1026, and Herrington said that it was the numbered corner of 1028. He further stated, that south of that, further south on the south bank of Freneh, was 1029, on a small maple. This is where Bowman wanted to locate 1027. The jury examined the maple carefully. Herrington asked Bowman how he could locate 1027, where 1029 was? There was considerable altercation; some between John Moore (the defendant) and myself. Moore said, “This will fix Old Donation.” (Bowman went by the name of Old Donation.) Herrington, at that place, said to the jury, that at the length of one tract south ought to be the corner No. 1030, but that he never hád seen it. When we found the white oak marked MXXX., Herrington said with exultation, “ You have found what I never could find.” Herrington said to the jury, that on one lot further south was 1031; and otie further south again, was a hickory not numbered. Moore was along. My impression is, he carried the chain. Bowman said to Herrington, “ This is'a spurious number.” I thought it might be so, and the same evening I took a chisel, and cut out the middle X., and found it counted to the date of the original survey. Moorp did not dispute the number on these trees. Nobody disputed them but Bowman and Thompson.”</p> <p>To all this evidence, so, far as it relates to what was said by James Herrington, the counsel for the defendant objected, and its admission by the court; was the second error assigned. *</p> <p>1. The record of the ejectment brought by Martin against Smith, was between other parties, and therefore not evidence. Peake, 3S. The bill of exceptions does not state for what purpose it was admitted, but the judge said he would instruct the jury as to its effect. But this could not remove the impression it was calculated to make upon the minds of the jury. For this reason, it is error to read to the jury an award of arbitrators, although the court charge the jury that it ought not to have the least weight as evidence of title. Shaeffer v. Kreitzer, 6 Binn. 432,433. And the principle may be laid down generally, that if evidence be erroneously admitted, the error is not cured by the court telling the jury, before a.bill of exceptions is actually signed, that they ought to pay no regard to it. Nash v. Gilkeson, 5 Serg. & Rawle, 352. We contend, that the, record was offered in evidence to show the situation of tract Noi 1028. ¿Ulan Dunn, on his cross-examination, swore, that Smith lived on the land, as tenant of Martin, which was favourable to the plaintiff, becáuse, if he was the tenant of Martin, he did not claim the tract as No. 1028, and therefore the record was not rebutting evidence. There was no necessity to explain the motive for taking a lease from Martin.</p> <p>2. The declarations of Herrington were not evidence. They were made long after his sale to Moore, and therefore could not affect him, as claiming under him. And, as to these declarations being made in the presence of Moore, it does hot appear that they were addressed to him, or even that he heard them, or that he could, without impropriety, enter into any dispute on the subject. There was a jury of view on the ground, and the dispute was between Herrington and Bowman and Thompson, in relation to a matter in which Moore had no concern, and no right to interfere. There is nothing in Herrington being at the time part owner of the tract in dispute, because they held in severalty, and not in common.</p> <p>1. We offered the record of Martin y. Smith, to rebut the force of Dunn’s testimony, arid to show that although Smith was living on the tract as the tenant of Martin, yet he took that lea*se to avoid being turned off after the recovery against him, and that he was not then claiming the land as the lot No. 1028. 3 Serg. & Eawle, 278, 311, 314.</p> <p>2. Herrington’s declarations were evidence, having been made in the year 1S07, when Moore and Herrington were joint owners of No. 1028. Besides, Moore was present, and, if he did not contradict these declarations,, they were evidence against him.</p>

<p>IN •ERROR.</p> <p>On a writ of error to the Court of Common Pleas of West(more-land county, it appeared that this was an action on the case, brought by the defendant in error, Thomas Humphreys, administrator of Charles Porter, deceased, against Alexander Johnston, for money had and received by the latter for the use of the former, under the following circumstances:—</p> <p>Charles Porter purchased from John Craig a tract of land, and paid him the first instalment. Porter died in Philadelphia, on his way to Ireland, and, there being no person in this country to complete the purchase, the amount of the first instalment was paid over to Thomas Humphreys, the brother of Elizabeth Porter, the wife of Charles Porter. The money was deposited in the hands of James Irwin, who, having used it, gave his bond for three hundred and fifty-one dollars and eighty cents, in the name of Elizabeth Porter. Thomas Humphreys, having collected the money from James Irwin, the attorney, by his direction, and in consequence of letters from Ireland, paid it over to Alexander Johnston, to be transmitted by him to Ireland. Johnston wrote the bond, from Irwin to Elizabeth Porter, and knew all about the transaction. The money not being transmitted, according to the understanding of the parties, Thomas Humphreys took out letters of administration, on the 8th of September, 1819, on the estate of Charles Porter, and brought this suit to August Term, 1821. After the letters of administration .were granted, Hum-phreys claimed the money from Johnston, who said he was making arrangements to send it to Ireland.</p> <p>The defendant relied upon the act of limitations, more than six years having elapsed from the receipt of the money, until the commencement of the suit. The, court below was of opinion that the act of limitations did not prevent the plaintiff from recovering, in the case before it, and the plaintiff excepted to its opinion.</p> <p>said, that the money belonged to Elizabeth Porter, because the bond for it was given to her, and it was recovered at law, and paid to the defendant below as her agent. But, admitting it was received for the personalre-presentative of Charles Porter, the defendant below having become a trustee against his will, the trust was not of such a character as would prevent the operation of the act of limitations. 1 Wheat. 177. Witherup v. Hill, 9 Serg. & Rawle, 12.</p> <p>answered, that the widow of Charles Porter had no right to the. money, except in trust for the personal representatives of her late husband, and when the amount; of the bond was recovered it belonged to his estate, which entitled the plaintiff to recover it. The evidence showed that the defendant below knew all the circumstances of the case, and, consequently, that it belonged to the estate of Charles Porter, tie was therefore a voluntary trustee, and cannot set up the act of limitations against the trust. Besides, there was a demand of the money after letters of administration were taken out, and an acknowledgment of the debt, by a declaration, on the part of the defendant, that he was making arrangements to remit the money to Ireland.</p>

<p>The settlement and confirmation of a partial administration account, do not preclude the court, on the settlement of a supplementary account, from inquiring into errors in the first account; particularly where minors are interested in the estate, who had -no guardians when the first account was settled.</p>

<p>A hawker and pedlar, who goes from house to house in an incorporated or county town, offering for sale goods prohibited by'the act of the 28th of March, 1799, and sells any one article, even of trifling value, incurs the penalty of fifty dollars, imposed by that act. And a license obtained under the act of the 4th of March, 1824, does not protect him.</p>

<p>“IN ERROR.</p> <p>brought this action of trespass quare clausum fregerunt, in the Court of Common Pleas of Westmoreland county, against the plaintiffs in error, David Kerr and .Alexander Foster, and, in his first count, declared that the defendants below broke and entered'his close; “ And then and there did seize, take, and distrain the wheat and rye of the said Nicholas, there growing,” &c., “ and then and there impounded the said wheat and rye,” &c.</p> <p>The second count of the declaration charged the defendants below with cutting down, seizing, and carrying away the wheat and rye, and breaking the close of the plaintiff below.</p> <p>On the trial, the plaintiff below gave in evidence a lease of a tract of land, made to him by David Kerr, on the 25th of October, 1814, for seven years from the 1st of Jlpril 1815, for sixty dollars per annum. He also proved, that Kerr and himself entered an amicable action before a justice of the peace, in which Kerr claimed two years’ rent. The matter was referred to arbitrators, who, on the 4th of May, 1822, reported a balance of twelve dollars due to Kerr. It was proved, by the justice, that the parties came to his house to enter the action, and said it was for the rent of two years, which remained unsettled. After the judgment was entered, the justice asked Kerr, if he would give Sharp some time? He said, “he would think about it,” or “see about it; that he had a landlord’s warrant, which he could use or take the judgment.” The justice had written the landlord’s warrant referred to, which was directed to Foster, one of the defendants below, who was a constable. Foster afterwards proceeded on the warrant, distrained upon the wheat and rye of the plaintiff below, and sold it. The grain was appraised on the day of sale, at the request of Foster, and, on the same day, an advertisement was put upon the door of the house; and it was proved that Foster had said, that the grain had not been appraised or advertised before that time.</p> <p>The President of the Court of Common Pleas, after stating the nature of the action and the pleadings, gave to the jury the following</p> <p>Charge. The entry, the taking and distraining of certain quantities of wheat and rye, and the fact of afterwards selling six acres of the rye, which were, at the subsequent harvest, reaped and carried away by the purchaser, at the sale, have been fully established. The defendants have endeavoured to justify these proceedings, under an alleged warrant by the one to the other for twelve dollars of rent due by the plaintiff. It is pretty clear, that this rent was then due. Although the defendant, Kerr, had recovered a judgment for it, his remedy by distress was not thereby divested, unless you can conclude, from his not having objected to the justices taking special bail, that he virtually relinquished that remedy. You ought to be cautious informing this conclusion, as it appears that when asked by the justice whether he was agreed, the answer was, that he would think of it, which rebuts the presumption of acquiescence.</p> <p>The warrant has not been produced, and, it is alleged, has been lost, and cannot, although search has been made, be found. Several persons have been examined on this point, and there could be little if any difficulty respecting it, if ^Alexander Foster, one qf the defendants, had come forward and testified to the- fact of the. loss of the warrant, and to his having used proper diligence to find it, as the other defendant has done. • A doubt hence arises, whether the alleged warrant may not be in Foster’s hands, and if he-had attended the referees, before whom this paper was laid, I would consider the testimony which has been given by Mr. Johñ-ston and others as not to be depended on. If you are satisfied of the existence of the warrant, its loss, and that due diligence has been used to procure it without success, the great question for your consideration will be, whether the defendants were justifiable in proceeding to sell the rye and wheat, without having pursued the provisions of the law, required in cases of this kind. It requires a warrant from the landholder, — a distress by the proper officer, — a notice of this to the tenant, — an appraisement by two reputable freeholders, on oath, and after this, six days’ notice of the sale. There is no testimony whatever of the. defendant’s having complied with any of these wholesome provisions. The.subsequent sale, therefore, of the rye was a tortious act, and vitiates the whole proceedings. It constitutes the defendants trespassers from the beginning, and, although an action on the case might have been supported, it is not the only remedy. The plaintiff is therefore entitled to recover. This being an action at common law, the damages will be according to the injury suffered by the plaintiff. These may be not only compensatory, but you maj1, go further, and, if you be persuaded the defendants acted not only illegally, but oppressively, you ought to give more.”</p> <p>- To this charge, the defendants’ counsel excepted.</p> <p>contended, 1. That the opinion of the court below, that an action of trespass would lie upon the facts proved in this case, was erroneous. Admitting that no appraisement’was made or notice given, agreeably to the act of the 21st of March, 1772, Purd. Dig. 708, the proper form of action was case, and not trespass vi et armis. The omission to do a thing does not make a trespasser ah initio; there must be some positive act done. 3 Bl. Com. 15. 1 Vent. 36, 37. 1 Boll. Jib. 673. Bradley on Dist. 266. Woodfall’s Landlord and Tenant, 320, 322, 516. The statute 11 G. 2, c. 19, c.ures irregularities in distresses for rent; and some parts of this statute have by practice been extended to Pennsylvania. Woglam v. Cowperth-waite, 2 Dali. 68.</p> <p>1-. The first count of the declaration sets forth no cause of action. It only avers, that the defendant below distrained, &e.,and not that he unlawfully distrained; and the judgment being general, it is erroneous.</p> <p>2. The judge instructed the jury, that there must be a warrant given by the landlord, and a distress by the proper officer; and that there was.no testimony whatever of the. defendants’ having complied with any one of these wholesome provisions. Thi3 was a mistaken opinion. The landlord may distrain himself, or do it through an agent. A warrant was not necessary; and, if it was, ■evidence was given of the existence of a warrant. Bradley on Dist. 216. 3 Pin. Jib. Bailiff, B. pi. 3, 4, 5. p. 537. 4 Pin. Jib. 1, pi. 5, 6.</p> <p>Coulter, for the defendant in error, said,-l. That the principal question was, whether or not the statute of lift 2, c. 19, extended to Pennsylvania; and he contended, that it did not. Our act of assembly, he observed, was passed soon after that statute, and.had an eye to it. One of the provisions of that statute respected the curing of irregularities in conducting a distress, so as to prevent the dis-trainer from being a trespasser ab initio. 3 Bl. Com. 14. H. Bl. 37. But these provisions'were not contained.in the fourteenth and fifteenth sections, which alone, according to the report of the judges, had been extended here.</p> <p>2. The omission to state that the distress was illegal, is cured by verdict. It must be presumed to have been illegal.</p> <p>3. Taking the whole charge together, it may be supported. It appears, upon the whole, that the plaintiff was entitled to recover.</p>

<p>IN ERROR.</p> <p>The record of this case being returned on a writ of error to the Court of Common Pleas of Fayette county, accompanied by several bills of exceptions, it appeared that The'Bank of Washington, the defendants in error, brodght an action of debt against the plaintiffs in error, John Barrington, Daniel Moore, and John Hughes, surviving obligors of Thomas Jtcheson, upon a bond in the penal sum of thirty thousand dollars, conditioned that the said John Barrington should “ well and truly perform the duties of cashier of the bank, to the best of his abilities.” The defendants pleaded, non est .factum and performance of the conditions of the bond; and the plaintiffs assigned breaches, by filing a paper containing thirty-four specifications of charges against the said Barrington, in his official character. There was no replication to the plea of non est factum, nor any rejoinder to the plaintiffs’ assignment of breaches.</p> <p>The cause was tried at a special court, held by his Honour Judge Shaber, in consequence of the following certificate of his Honour Judge Baird:—</p> <p>“ I have been requested by the counsel of the plaintiffs to certify this cause for trial, at a special court, on the ground, that although I may have no direct interest in the issue, yet they conceive I have, in the questions of law to be determined in the case.</p> <p>“ An extract has also been furnished from the specification of claim, referring me to certain items, in order to sustain the suggestion made. I have carefully examined them, and cannot see in what way I can be considered as interested in any question that can arise concerning them in that case. With respect to the item which is marked No. 13, the transfer was made with the consent of the directors, in order to close my concern with the bank. But, if it was not legally made, which I am willing shall be inquired into, the stock is still mine. I have already offered to submit that question to decision in any way the bank may wish, and will myself abide the result. I can never consent, that the cashier or his sureties, shall be involved on account of any transactions of the bank with me. Some time, ago I proposed to Mr. Brady, the attorney who spoke to me on the subject, that I was ready at any time to come to any adjustment with the, bank on that point; and. if they could show that the stock was not worth its nominal amount at the time of the transfer, I would make up the deficiency; or if it should turn out that the transfer is invalid, I will retain the stock, and pay the balance of my account. As to item No. 15, I know not what it means. My whole stock was one thousand three hundred and sixty-five dollars, and yet there appears also a charge of nine hundred and ten dollars against the cashier. It must be a mistake, as that stock was included in the other credit. As to the suggestion, that this stock was the property of other persons, I can at any time show, that it is unfound-</p> <p>ed. I have the receipts for all the instalments paid by myself. It has been shown to Mr, Evans, who handed the papers to me.</p> <p>“ With respect to all the other items, I can only say, that I know nothing about them. The date of all the transactions is subsequent to the time when I left the bank, and ceased to take any interest in its concerns. I certify, however, that I have a controversy pending with The Bank of Washington, arising out of a contract made with the directors. How far my interest, in that case, can have any relation to acts of the cashier, done without the authority of the board, I cannot at present see. I have no doubt, however, that, in the view of the managers of the bank and their counsel, questions may arise affecting me in some way; and l am therefore induced to certify the case to his Honour Judge Shalee, President of the Fifth Judicial District of this state, for trial, at a special court, as I am requested to do. And I also certify all facts really existing which may be necessary'to give him jurisdiction of the case. Thomas Baird.</p> <p>“ Washington, Pa., July 26th, 1824.”</p> <p>The specifications, referred to in the judge’s certificate, were these:—</p> <p>No. 13. — July 28. — He has credited the account of Thomas H. Baird this day with cash $1365, whereas it appears by the entry, to be the amount of seventy-eight shares of stock, at par value, without the authority of the directors, - - - ... - - $1365 Interest to Dec. 31st, 1822, 3.5.3, - ■ - 280</p> <p>No. 15. — July 28. — He has credited the stock account of Thomas H. Baird, with fifty-two shares of stock, the property of other persons, some of whom are deceased, .$910 Interest to Dec. 31st, 1822, 3.5.3, ' - - 186</p> <p>On the trial, one of the subscribing witnesses, after having proved that the bond was originally executed, not only by the defendants and Thomas Jlcheson, deceased, but by a certain Bobert Haslett also, whose name had been erased before the commencement of the suit, was asked by the plaintiffs’ counsel, “ who acted as cashier of The Bank of Washington?’’ The defendants’ counsel objected to the question being answered, alleging, that the minutes and proceedings of the Board of Directors in writing ought to be produced, to show the appointment, if any had been made. The court overruled the objection, and the.defendants’ counsel excepted to their opinion. In answer to the question, the witness stated, that John Barrington acted as cashier of the bank, signed the notes, and continued to act in that character until the bank wound up its business. Notes of the Bank of Washington were produced, which were proved to have been signed by the said John Barrington as cashier. The witness further stated, that he did not know to whom the bond was delivered; and that the name of Robert Haslett was not, when he last saw the bond, obliterated by having a pen drawn through it, as it was when he gave his testimony.</p> <p>George Morgan, the next witness produced' by the plaintiffs, after having stated that he was a director of The Bank of Washington, was asked by the plaintiffs’counsel, “if the Board had appointed John Barrington cashier?” To this question the counsel of .the defendants objected. He was then asked, “if there was an appointment of the cashier made in writing?” To this he answered, that “there was: That he was secretary of the Board,and put the appointment of cashier in writing himself; and afterwards asked Mr. Barrington to leave a blank in the minute book, where he could insert, in his own handwriting, the appointment of cashier; but he never did it, and could not tell what had become of the minute in writing, which he made of the appointment. He had made no search for it, and it had escaped his recollection until he was asked about it on the trial.” The witness was then asked again, “whether the Board had appointed John Barrington cashier?” The question was again objected to, and the court sustained the objection.</p> <p>The plaintiffs then offered to read in evidence a resolution of the Board of Directors, dated August 31st, 1814, in the following words, viz. “On motion ordered, that the cashier be directed to require the commissioners to. pay the monies of the bank in their hands to him, at the banking house, on ór before Wednesday next.” The evidence was objected to by"the defendants’ counsel;, but admitted by the court, to whose opinion exception was táken.</p> <p>The plaintiffs then offered, as a witness, Dr. Samuel Murdoch, who was objected to,- on- behalf of the defendants, on the ground that he was a stockholder; to prove which, the defendants produced the stock book. The plaintiffs then produced the transfer book, from which it appeared that he had, on the 3d of February, 1823, transferred a part of his stock to Alexander Murdoch, and the residue of it, on the 13th of November 1824; before the earliest óf which periods, it appeared that the bank had forfeited its charter. It also appeared, that the nominal amount of each share of stock was fifty dollars; that only seventeen dollars and fifty cents had been paid on each share, transferred by Dr. Murdoch, and that the bank owed debts which it was unable to pay. The court having overruled an. objection made by the defendants’ counsel, to the admissibility of Dr. Murdoch as a witness, an exception was taken to their opinion. , '</p> <p>Upon being sworn, Dr. Murdoch stated, that the endorsement on the paper, purporting to be the bond on which this action was brought, was in his handwriting; that he had received the paper ■ from Thomas Price, who had been a director of the bank, but he could not recollect at-what time.</p> <p>Thomas II. Baird, being nest offered as a witness on the part of the plaintiffs, was objected to on the ground of interest. It was admitted by the plaintiffs, that he had been a stockholder, but they alleged that he had transferred his stock. It appeared from the stock hook that he had been a stockholder, but no transfer of his stock was to be found in the transfer book. There was, however, a letter of attorney in the following words, viz. “ I assign and transfer and make over to The Bank of Washington, all the shares which I hold or have an interest in, in the bank, in whatsoever names they ma}' be; and I do hereby authorize and empower John Barrington, Esq., to make this transfer on the books of the said bank, at any time, with as full effect as I could do myself. Witness my hand and seal, this 7th of July, 1S19. Thomas II. Baird.’'</p> <p>“ Attest, Catherine Barrington.”</p> <p>The stock account of Judge Baird was likewise produced by the plaintiffs, and No. 13 of the plaintiffs’ specification of breaches, stated above, was read by the defendants’ counsel, in further support of their objection to his testimony. The court, however, admitted the witness, and sealed a bill of exceptions.</p> <p>In giving his evidence, this witness declared that he could not recollect when he first saw the bond. He thought he saw it among the papers of the bank. He had no recollection of the execution of the bond, or that it had ever been offered to the Board. Whether or not it was taken in his absence, he could not tell. He found it lying in the bank, and he thought he put it into a blank book of his in the bank. Afterwards, when he left the bank, he handed it to some gentleman, but could not say to whom. He knew of no act of the Board, or of himself, to discharge Robert Haslett. The minutes were generally kept by Barrington. He had a conversation with Barrington on the subject of the erasure of the bond, when he came out of the last special court. The deponent told Barrington, that he must have made the erasure. He replied, that if he did, it must have been in the presence, of the Board, and with their assent. The deponent told him he thought it was, for such was his impression.</p> <p>The plaintiffs, for the purpose of showing the existence of a bond to which the name of Robert Haslett was signed, over which the Board of Directors had control, next' offered to read a resolution on the minutes of the six following named directors, viz. Thomas H. Baird, President, Thomas JLcheson, R. Hamilton, D. Norris, and James Orr, of the date of the 19th of •ffpril,. 1815, in these words, viz. “Resolved, that the name of Robert Haslett be struck off the said bond of security for the cashier, provided the other sureties consent thereto.” The evidence was objected to by the defendants’ counsel, on the ground that the resolution was entered into by á number of members of the Board, incompetent for that purpose. The court overruled the objection, and admitted the evidence, upon which an exception was taken.</p> <p>The plaintiffs then offered to read in evidence to the jury, the bond of which proof had been made, as stated above, without further evidence, which was objected to by the defendants’ counsel, who produced and read to the court the Fifth Fundamental Article of an act of assembly, entitled, “An act regulating banks,” passed the 21st of March, 1814, and the following ordinances or by-laws of the said corporation, viz.-— ’ ,</p> <p>“ARTICLE SECOND.”</p> <p>“Sect. I. The directors shall keep fair and regular entries in a book, to be provided for that purpose,, of their proceedings; and, on every question where two directors shall require it, the yeas and nays of the directors voting, or the names of the members, who make and seco'nd a motion, shall be duly'inserted on the minutes, and these minutes shall at all times, on demand, be produced to the stockholders, when at a general meeting the same shall be required.”</p> <p>“ Sect. VII. The minutes of the preceding meeting shall be read before the Board of Directors proceed to any business, and no debate shall then be admitted, nor question taken on the business of such meeting, except as to errors and inaccuracies.”</p> <p>The court overruled the objection, and permitted the bond ÍQ be given in evidence; upon which the defendants’ counsel excepted to their opinion.</p> <p>Among the charges of official misconduct contained in the plaintiffs’ specification of breaches, was the following, viz.—</p> <p>¥• No, IS. — Joseph Pentecost’s debt due to the bank; he discharged the endorsers, and took insufficient security for the same, without the authority of the directors, - - $10,328,20. Interest to Dec. 31st, 1S22, 3.4.12, 2,QS8,Q7.”</p> <p>It appeared, that Joseph Pentecost was indebted to The Bank of Washington to the amount of ten thousand three hundred and twenty-eight dollars, and twenty cents, which was due upon three notes; one for one thousand dollars, endorsed by George Baird} one for four thousand two hundred and fifty dollars, endorsed by George Morgan; and one for five thousand six hundred dollars, endorsed by James Brice and William' Jlshhroolc: That Barrington, the cashier had, on the day .of Jlugust,1819, taken the bond of Joseph Pentecost,^conditioned for the payment of ten thousand three hundred and twenty-eight dollars, in annual instalments, from the date of the bond, which contained a warrant of attorney, authorizing the entry of judgment thereon, with a n’.5.u?e prohibiting judgment from being entered until default had been made in the first or some subsequent instalment. Several witnesses were examined as to the circumstances of the above-mentioned endorsers, the result of whose testimony was, that George Baird’s circumstances were considered good in 1819, and George Morgan’s and James Rice’s doubtful; and that William JLshbrook was insolvent. It Appeared, further, that judgments to a considerable amount had been entered against Joseph Pentecost previous to the date of the bond, and that between its date and the time of his default in payment, several other judgments were entered against him; and that, on a sale of his property, made subsequently to the entry of the judgment on the bond taken by Barring-ton, there was an excess, (though not a very considerable one,) in the amount of sales over the aggregate amount of judgments .entered before the date of the bond, which was applied to judgments entered subsequently to its date, but before the entry of judgment upon it.</p> <p>At the close of the trial, Shalek, President, charged the jury as follows:—</p> <p>“The present action is brought by,The Bank 'of Washington against John Barrington and his sureties, to recover damages arising from breaches of the condition of a bond, given to indemnify the plaintiffs from any failure in John Barrington in the faithful performance of his duties, as cashier of The Bank of Washington.</p> <p>“The bond of which oyer is given by the plaintiffs, is dated the 25th day of Jlugust, 1814. Its penalty is thirty thousand dollars. To the plaintiffs’ declaration, which is in debt, the defendants have pleaded non est factum and performance of the condition. The plaintiffs have putin a replication of non-performance, and have assigned no less than thirty-four breaches of the condition. A few specifications have been abandoned; the greater part of them, however, the plaintiffs have endeavoured tp sustain by testimony: — of their success in so doing, so far as facts are in issue, you are the exclusive judges; so far as the law is concerned, you will receive it from the court, and apply it to the facts that have been satisfactorily made out. ■</p> <p>“The first point to which I shall direct your attention, is the .construction of the condition of this bond. Although the instrument is very inartificially drawn, I find, upon examination, that the clause which defines the boundaries of the parties’ liability, pursues, or nearly so, the terms of the fifth fundamental article of the general banking act of 1814.</p> <p>“The condition of the obligation is, “that John Barrington shall well and truly perform his duties of cashier, to the best of his abilities.” The question then is, What is such faithful performance of his duties? Is it, as has been alleged, simply that he shall not defraud his employers? or is he not bound to conform to the general'principles upon which all such institutions are conducted? The .cashier of a bank has much indeed intrusted to him. Not only the money of the stockholders, but that of depositers is in his power. In the management of the business of the bank he has certain discretionary powers: in the employment of these he must govern himself with that degree of caution which a prudent man would exercise in his own affairs; and this discretion does not extend to those acts for which a board of directors is especially constituted, and such as fall within their customary duties. If, therefore, he undertakes to change the nature of the securities of the institution, without the assent of the Board, (unless, indeed, the circumstances are of a nature that render it peculiarly necessary to the institution, which circumstances he ought to make out. on the trial,') and loss accrues from such change, he will become liable for breach of duty.</p> <p>“For mere mistakes, errors of calculation, such as in the management of great banking concerns must frequently occur, a cashier undoubtedly ought not to be held responsible. If the errors are so numerous as to afford reasonable ground to presume gross negligence, the rule would be otherwise; and if the errors are such as tend evidently to the benefit of the cashier himself, such errors would create strong suspicions against that officer, and, in proportion to the frequency of their repetition, and amount, would raise a presumption of a want of due fidelity in him. Where a party undertakes to act for another, he must show either the authority or the acquiescence of the principal. It would be singular, indeed, if it lay upon the party contending against the exertion of the power, to show that the person professing to act as agent, had no authority to do so.</p> <p>“ An important ground of defence arises under the plea of non est factum; that is, that the bond declared on is not the bond given by the. defendants. The bond was originally signed by five persons. Since its sealing, and subsequent to its delivery, it has been defaced, by the erasure of the name of Robert Haslett, in the body of the instrument, and the pen has been drawn over his signature, opposite to his seal.' What is the-effectof this erasure? If made by the obligee, without the consent of the obligor, whether the erasure be in a material or immaterial part of the bond, it would thereby become void, and the plaintiff could not recover. If the erasure be made by the obligor himself, in a several bond, the obligor could not by such act discharge his responsibility. It does not appear very clearly to whom the bond was originally delivered. It must have been kept amongst the papers of the bank, and was taken from there by Judge Baird, President of the institution, and delivered by him, afier his resignation, to Mr. Brice, a director. Had this paper come into the hands of Judge Baird, free from erasure, it would then have become incumbent on the plaintiffs to satisfy you, as to the- person who made the erasure, and by whose directions it was made, and if by the assent of the obligors, or either of them, to show that fact to the jury. If the obligee produces a bond on which there is an erasure, and which came into his hands without one, he must explain and account for it. The presumption is, that it was done by him, unless lie gives circumstances in evidence to destroy that presumption. Whether you are satisfied that the bond on which this action is brought, was delivered to the proper officers of the bank and held by the institution, I am unable to say. If you are, by whom and by whose directions was the erasure made? If made by the cashier at the instance, and by the instructions of the directors,- and without the assent of the other obligors, the bond is void; if made with their assent, it is still good against them. The evidence to show the assent of the obligors is certainly very slight, and if upon that subject you are not satisfied; should you believe the erasure made by order of the Board, I am not aware upon what principle you can find against the defendants. But it is contended, in this case, that the bond was in the hands of Bar-rington, one of the obligors; that as cashier of the bank he held it; and that, when he delivered it to-Judge Baird, the erasure was already made. If made by Barrington, without the consent of the Board, it was a fraudulent act in him, and his co-obligors are not discharged thereby. Whether the erasure was made by him or not, and whether with or without the order of the directors, and whether with or without the assent of the other obligors, you will decide from the testimony.”</p> <p>The court then proceeded to charge the jury upon the several specifications of charges against John Barrington. In relation to the 21st specification, the court adverted to the principle which had been already laid down, with respect to the duties and liabilities of a cashier, and likewise to the testimony given upon this specification.</p> <p>The judge then charged the jury, “ that if they believed that John Barrington had taken upon himself, without any authority from the Board of Directors, to discharge the endorsers upon the notes drawn by Joseph Pentecost, and to substitute in their place Pentecost’s judgment, or if the cashier, without such authority, had done any other act by which the endorsers had been discharged, such discharge of the endorsers was a breach of the condition of the bond, and he, together with his sureties, became responsible for the amount of the notes from which such endorsers had been discharged by the act of the cashier.”</p> <p>To this opinion, the counsel of the defendants excepted.</p> <p>1. The special court had no jurisdiction of this case. The act of assembly of the 15th of March, 1816, Purd. Dig. 422, provides for special courts, where the judge before whom it would be regularly tried, has been counsel, or has a personal interest in t he cause. And the act of the 33d of March, 1818, Purd, Dig. 424, which is a supplement to. the first, and narrows its provisions* ■declares, that when the president of any judicial district shall be personally interested in the event of any suit pending, or to be instituted in his district, or shall have been concerned as counsel for either of the parties, or those under whom they claim, touching the same subject matter; or whenever it shall happen, that the title under which either party, claims has been derived through sUeh president, such suits shall be the subjects of the jurisdiction of special courts. Judge Baird had not been counsel in this cause, and it does not appear that he was personally interested in the event of it. The ground upon which the defendant below asked for a special court was, that the judge was interested in some points of law, which might be decided; and the judge, in his certificate, expressly declares, that he knows of no interest he has in the event of the suit. He was afterwards admitted as a witness, which is conclusive upon the question of interest, so far as the. opinion of the court below goes. No consent of the defendants to the jurisdiction of the special court appears upon the record; and, if it did, it would not confer jurisdiction. Where a court'is of limited jurisdiction, the want of jurisdiction need not be pleaded in abatement, but may be taken advantage of any time.</p> <p>2. The cause was not put to issue. The plea of non est factum was without replication or issue; and there was no rejoinder to the plaintiffs’ assignment of breaches of the condition of the bond. The manner of pleading on a bond with a penalty is, a declaration •for the penalty; a plea of performance; a replication, assigning breaches, and a rejoinder to that replication. Postmaster General v. Cochran, 2 Johns. 413. Caverly, v. Nichols, 4 Johns. 189. The record showed no agreement of counsel to waive formal pleadings, or a joining of issue, without which the judgment is erroneous. 2 Binn. 33. 3 Serg. & Rawle, 577.</p> <p>3. The bond ought not to have been received in evidence. The act of the 21st of March, 1S14, Purd. Big. 56, makes it the duty of the Board to take a bond from the cashier, with two sureties, &c. But there was no evidence of a delivery of this bond by the obligors, nor of an acceptance of it by the obligees. The subscribing witnesses'did not prove a delivery. The only evidence was, that it was found among the papers of the bank; but this was no proof of delivery nor of acceptance. It might have been sent to the Board for their approbation of rejection, and not acted upon. Delivery is essential to a deed; it takes effect from delivery, and there can be no delivery without acceptance. 1 Shep. Touch. 57, 58. 2 Bh Com. 397. Jackson v. Phipps, 12 Johns. 41S. There is no presumption that the bank accepted the bond. It was their interest to reject it, in order to get better security. The acceptance ought to appear on the minutes of the Board, which the act of assembly directs to be kept. . There was an erasure, in consequence of which the bond was void; and it ought not to have gone, to the jury for that reason, as there was no evidence to account for it. Esp. Ev. 129.</p> <p>4. The construction given by the court below to the condition of the bond was erroneous. The condition prescribed by the act of. assembly, is for the faithful performance of the duties of the office; but, in the bond in question, the words, “to the best of his abilities,” were added, which not being required by the act, are to be rejected. The part of the charge complained of, is' that which mates the securities responsible for the cashier’s mistake of his duty: for example, in undertaking to do what was not intrusted to him, but reserved for the Board of Directors, in consequence of which a loss happened. Sureties are favourites of courts, both of law and equity, and are not to be bound beyond the terms and precise scope of their engagements. Ludlow v. Simons, 2 Caines, 29. In the case of The Union Bank v. Clossey, 10 Johns. 271, it was held, that the sureties were bound only for the honesty of the first teller of the bank, and not for errors of judgment; and the same principle applies to this case. The obligation of the securities extended only to the honesty of the cashier, not to his abilities. Different banks intrust different matters to the discretion of the cashier; and it is often a nice matter to trace the line between the powers of the cashier and those of the directors. The bank had ceased discounting, and was winding up its concerns, when Pentecost’s notes were given up, and his judgment bond taken in exchange, and the cashier might well consider the bond as the best security; but for this error of judgment his securities were certainly not responsible.</p> <p>5. The Court of Common Pleas charged the jury incorrectly upon the doctrine of erasure. The charge was, that if Barring-ton (who was the officer and agent of the bank,)' made the erasure, without the knowledge of the obligors, the' bond was ,not void as to them. The law is otherwise. Erasure by a stranger, without the privity of the grantor or grantee, makes a deed void. 1 8hep. Touch. 68. If a bill of exchange be altered in a material part, even by a stranger, it discharges the endorsers. Chitty on Bills, 130. The alteration of the date of a promissory note by the payee, avoids it. Bank of the United States v. Russel, 3 Yeates, 391. Stephens"?. Graham, 7 Serg. & Rawle, 50S. The alteration of a bond, by inserting another obligor, without the consent of the original obligors, vitiates the instrument. O’Neal v. Long, 4 Crunch, 160. PARSONS, C. J., in Smith v. Crooker, 5 Mass. Rep. 538, lays down the general rule to be, that an alteration by a stranger, without the privity of the obligor, avoids the bond. The same rule is recognized in other cases. Den v. Wright, 2 Halsted, 177. Pi-got’s Case, -11 Coke 27. 2 Bulst. 247, S. C. Pemberton’s Lessee' v. Hicks, 1 Binn. 14. The bond ought not to have gone to the jury, without some evidence by the plaintiffs accounting for the erasure, or showing that it was done by the consent of the obligors.</p> <p>6. In saying to the jury, that if the paper came into the hands of Judge Baird free from erasure, it would lie on the plaintiffs to account for the erasure, the court below was wrong. It would lie on the plaintiffs to account for the erasure, if it existed, as it undoubtedly did, before the paper came into the hands of Judge Baird. A positive misdirection is error, though other parts of the charge may be to the contrary. Work v. Maclay, 2 Serg. & Rawle, 415.</p> <p>7. There was error in instructing the jury, that if the chashier discharged the endorsers on any notes, by changing the securities, he and his sureties were answerable to the amount of the notes. This part of the charge related to Pentecost’s debt of ten thousand dollars. If the cashier acted in this matter to the best of his judgment, as he probably did, his sureties are clearly not liable. Besides, it is probable that the whole amount of this debt could not have been recovered, if the securities had not been changed, and the measure of damages should have been the amount lost by the bank, in consequence of the change of securities, and no more. flndrews v. Pardi, 5 Ray, 2,9. Purviance v. dingus, 1 Rail. 185. Russel v. Palmer, 2 Wils. 325. Rearborn v. Rearborn, 15 Mass. 318. Sherman v. Goodman, 13 Mass. 188.</p> <p>8. The i’esolution of the Board of Directors, of the 31st of Jiu-gust, 1814, was irrelevant, and therefore not evidence. The object was, to prove that Barrington was cashier; but the resolution does not mention Barrington. Besides, there was a written paper proving the appointment, and this ought to have been produced.</p> <p>9. Dr. Murdoch was interested, and, consequently, not a competent witness. He was a stockholder when the bank became insolvent, and was liable, in case of a deficiency to pay the debts of the bank, for that portion of his subscription, which had not been called for and paid up; and this liability he could not divest himself of by a subsequent transfer of his stock. The charter was forfeited before the transfer.</p> <p>10. Judge Baird was also an incompetent witness, on the ground of interest; for if the bank recovered of Barrington and his securities, on account of a transaction with Baird, Baird is bound to indemnify them. Besides, he had been a stockholder, and had not transferred his stock to the bank, but only given Barrington a power of attorney to make the transfer. The bank did not enforce the conveyance. On the contrary, they claimed from Bar-rington the whole amount of the sum credited by him to Judge Baird’s account, and have obtained a verdict and judgment for the whole amount. Towle v. Stevenson, 1 Johns. Cas. 110. God-win v. Hacker, 1 Caines, 527. In truth, the stock remained the property of Judge Baird, and therefore he was clearly interested. [N. B. This point was made by Mr. Kennedy alone; his colleague being of opinion that it could not be sustained.]</p> <p>11. The resolution respecting the striking out of Haslett’s name from the bond, ought not to have been received in evidence, because there was not a competent number of members present, as required by the act of assembly, 7 Serg. & Rawle, 392. It was a resolution, too, in their own favour, and thus they made evidence for themselves.</p> <p>12. In saying to the jury, that he was not aware upon what principle they could find for the defendants, the President of the 'court below expressed himself too vaguely, and left the jury to judge of the law, which was error.</p> <p>1. The parties agreed that this cause was the proper subject of a special court, and no objection to its jurisdiction appears upon the record. The acts of 1816 and 1818 are both in force; the latter being a supplement to the former. The judge certifies the cause for a special court when he thinks propel*. This cause was regularly certified, and no objection made. This court, thére-fore, cannot take cognizance of any objection now made. Judge Baird, at the conclusion of the certificate, says, “ I certify all facts really existing, necessary to give jurisdiction.”</p> <p>2. The exception, founded on the want of joining issue, ought not to prevail; because it may be collected from the record, that both parties agreed to try the cause, and consider the issue as joined upon the pleadings, as they were. The charge of the court shows that the parties considered the issue joined, both on the plea of non est factum and the plea of performance, with the assignment of breaches by the plaintiffs. There is no settled rule of this court, that a judgment must be reversed, unless mention is made of issue, and no case to that effect can be produced. The pleaof non est factum concludes to the country, and thus presents a direct issue. If the assignment of breaches is not replied to, it is the.fault of the defendants, of which they cannot take.advantage. In Neto York, mis-pleading is cured by verdict, (12 Johns. 353;) and here the most trifling circumstance is laid hold of to prevent the reversal of judgment for want of an issue, after trial on the merits. 2 Serg. & Rawle, 337. 9 Serg. & Rawle, 67.</p> <p>3. (The counsel for the defendants in error was told by the court that it was unnecessary to argue the third exception.]</p> <p>4. The condition of the bond was correctly construed. The language of the court below was, that “the cashier should-exercise such care and prudence, as a man should reasonably use in his own affairs.” This was right, for, by accepting the office, the cashier undertakes for a reasonable knowledge of his duty. 1 Li-vermore on Agency, 339, 341. The court also said, that “the cashier should not usurp the powers reserved to the Board, and that if he exchanged one security for another, he should be responsible for any loss.” This was the least that could be said; ,and even this was qualified, by the court, by excepting extraordinary cases of emergency, and involuntary mistakes in calculation. It is not law, that this bond only stipulates for the honesty and morality of the cashier. Every man is responsible for gross negligence, and especially an officer who receives a salary. Gross negligencemakes even a gratuitous agent responsible, and an agent for reward is held more strictly. Livermore on Agency, 342, 352.</p> <p>5. Barrington, the cashier, by whom the erasure was made, was no stranger, but one of the obligors; and no case goes so far as to say, that this would discharge the others. It was an act of infidelity in his office, for which the obligors are responsible. It is not generally true, that every alteration by a stranger avoids a deed. If the seals of a deed be torn off by a child, the deed is good. Palmer, 403. Latch. 226. A deed torn by a stranger, by accident, remains valid. Bro. Ab. 88. 13 Pin. 44. An estate conveyed by deed remains, though the deed be destroyed. Pent. 297. 2 Johns. 84. An alteration by one of several obligors, does not affect a'bond. Shep. Touch. 68. iGallison, 69, 71. 15 Johns. 297. Cro. El. 40S, 546. 5 Co. 23.</p> <p>6. It is hot necessary to defend every word of the charge of the court below. It is enough, if, upon the whole, it can be supported. One part may be explained by another. The charge, upon the whole, was right, — that, if the bond was altered by the consent of the obligors, it was void. As to its coming to the hands of Judge Baied, the meaning of the judge was, that if it came to his hands unaltered, it lay upon the plaintiffs to,show how, and by whom it was altered; and in this there was no error.</p> <p>7. The only proper measure of damages, in this case, was the amount of Pentecost’s notes delivered up. These notes had been discounted by the bank, and were not due when they were given up by the cashier. What they were then worth, it was impossible for the jury to'ascertain. They might have been paid or secured, although neither the drawers nor endorsers were worth the money. In commercial law, if a man gives up a note or bill, he makes it his own. Miner v. Tagert, 3 Binn. 204. Chitty on Bills, 258, 272, 375. IS Pez. 20, 21. 3 Johns. 230.</p> <p>8. The resolution of,the Board of Directors, of the 31st of August, 1814, was not irrelevant, because it showed that there was an existing cashier; and it was shown, by other evidence on the part of the plaintiffs below, that Barrington was cashier de facto. It was introductory to evidence of the cashier’s' bond, on which suit was brought.</p> <p>9. Dr. Murdoch having sold out and transferred his stock, he had no longer any interest, and was therefore a competent witness.</p> <p>10. [The counsel thought it unnecessary to speak to this exception, in consequence of what had fallen from the court]</p> <p>11. The resolution of the directors, authorizing Haslett’s name to be striken from the bond, was evidence, notwithstanding there were not enough members present to constitute a Board, because the minutes being kept by Barrington, his acts were evidence against him and his sureties; besides which, it was evidence that the Board was in possession of the bond.</p> <p>12. [The court informed the counsel, that'he need not argue ¿he twelfth exception.]</p>

IN ERROR. A- writ of error having issued to a special Court of Common Pleas of Westmoreland county, it appeared, on'the return of the record, that the plaintiff in error, Frederick Shaeffer, brought -this action of ejectment against the defendant in error, Wilson Jack, for the premises described in the writ.

<p>IN ERROR.</p> <p>On the return of a writ of error to the Court of Common Pleas of Mercer county, ten errors were assigned in the record, arising upon bills of exceptions, taken by the plaintiffs in error, the defendants below, to the opinion of the court, upon points of evidence, and in their charge to the jury. Only two of these exceptions being noticed in the opinion of.this court, it will be sufficient to state only the facts-connected with them.</p> <p>In the court belpw, this was an action of debt, .brought in the name’ of the Commonwealth of Pennsylvania against Mian Dunn, sheriff of Mercer county, and John Barns, John Kerr, James Montgomery, and David Garvin, his sureties upon the official bond of the sheriff. In the declaration, breaches" were assigned generally, in the words of the condition of the bond.</p> <p>After the jury had been sworn, the counsel of the plaintiff moved to amend the declaration, by specially assigning the breach of the condition to be, in not well and truly executing a writ of fieri facias, issued-out of the Court of Common. Pleas of Mercer county, on a judgment obtained in the said court by J. 'Jldams, J1 Knox, and T. Nixon, against Jacob Plerrington, and directed to the said sheriff of Mercer county, and delivered to the said Mian Dunn, the sheriff of the said county, returnable to Feb~ ruary Term, 1822; and in not well and truly executing a writ of venditioni exponas, issued out of the said court, on the said judgment, and delivered to the s.aid sheriff, returnable to November Term, 1822; debt, three thousand, two hundred and sixty dollars, and eighty two cents, &c. The counsel of the defendants objected to the amendment, but the court permitted it to be made; and this was the first error assigned.</p> <p>The plaintiff’s counsel offered in evidence the bond upon which suit was brought, which had been entered in the office of the Recorder of Deeds; and, upon an objection being made to it, a certified copy of the said bond, was offered in evidence. It appeared, that one John Findlay was a subscribing witness to the execution of the bond, and that John Findley was the Recorder of Mercer county; but it did not appear from the Registry, that the bond was taken by John Findlay, the Recorder. The court overruled an objection made by the counsel for the defendants to this evidence, and an exception was taken to their opinion. This was the second error assigned.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Crawford county, in which a case was stated for the opinion of the court, to be considered as a special verdict. The defendants in error were plaintiffs below7.

<p>The record of a verdict for damages, to be released on the performance of a certain act by the defendant, where no motion for a nevv trial, or in arrest of judgment is made, but judgment is not entered on the verdict, in consequence of the performance of the required act by the defendant, is conclusive as to the same matters coming directly in question in another suit, upon the parties, and upon privies in blood, in estate, and in law, unless obtained by fraud and collusion.</p> <p>A private act of assembly, authorizing the guardians of infant children, the title to whose real estate is vested in the guardians, to convey such estate to a person with whom the parent of the children, before his death, contracted to sell it, is valid.</p> <p>A conveyance made by persons authorized by the legislature to convey, is prime, facie evidence of good title in the vendee, against all claiming under the vendor; and, where such conveyance has been made after a solemn trial and decision on material facts, it is as conclusive as if made by a person in full life.</p>

<p>IN ERROR.</p> <p>Writ of error to Allegheny county.</p> <p>who cited, 1 Chitty on PL 410, (margin, 562.) Mont, on Set-off, 18. Bull. N. P. 181. Heck v. Shener, 4 Serg. & Bawle, 257. Act of the 26th of March, 1810, Purd. Dig. 361. 2 Sir. 763. Watts v Coffin, 11 Johns. 495. Workground v. Browne, 4 Harr. & MlHen. 89. Shaw v. Atkinson, 3 Yeates, 48. Steigleman v. Jeffries, 1 Serg. & Bawle, 477. Gogel v. Ja-coby, 5 Serg. & Bawle, 117,122. Greenwalt v. Horner, 6 Serg. & Bawle, 71.</p> <p>referred to the Act of 1705,- 1 Sm. L. 49. Nicholson v. Hancock, 4 Hen. & Munf. 491.</p>

IN ERROR. On the trial of this cause in the Court of Common Pleas of Mercer county, William G. Welsh, the plaintiff in error and defendant below, offered in evidence the copies of two judgments rendered by William Budd, a' justice of the peace, proved by the oath of the said Budd to be true copies of the proceedings in the suits in which the said judgments were: rendered, as they are entered in his docket.

<p>IN ERROR.</p> <p>Error to Washington county.</p> <p>This actien, of Nomine replegiando, in which Jtlfred Dwil-Ung, the .defendant, in error, was plaintiff, and John Miller, the plaintiff in error, defendant, was entered, in the Court of Common Pleas of Washington county, of November Term, 1824, to try the right of the defendant to hold the plaintiff as his-servant, until he should attain.the age of twenty-eight years.</p> <p>On the trial, the President of the court, gave, among others, the following instructions to the jury, to which the counsel of the defendant below excepted:— '</p> <p>‘•‘The principal question, then, that is presented to us in this’ cause is, whether the child of a servant until, twenty-eight years, can be held for the same period, and on the same conditions, as the mother ? The children of those born d-uring the term that their mothers, respectively, were lawfully held as servants, until, they should arrive at the age of twenty-eight years, under thé provisions of the’Abolitiofr Act of 1780, on account of their mothers .having béen slaves for life; in conformity to the existing laws of Pennsylvania at the passage of that act, were born free. The defendant, therefore, has no title to the servitude of the plaintiff, until he shall attain the age of twenty-eight years.”</p> <p>Had it not been for the passage of the act of the first of March, 1780,. 1 Purd. Dig. 478, the issue of a slave, would have been slaves ad infinitum. The object, of the law was gradually to abolish slavery for life, but not to abolish servitude until the age of 28 years. This servitude was intended a§ a compensation to the master, who would be at the expense of supporting the child during infancy, and would lose a portion of the services of the mother-during the time the child' was very young. He cited, Stiles v. Nelly, 10 Serg. & Bawle, 366. • ,</p> <p>- The act of the first of March, 17S0, is loosely drawn, but enough appears to show the intent of the legislature to have been, to put an end to slavery absolute or qualified, except in relation to those who were then slaves, and their immediate issue. It has been decided, that the child of a female runaway slave from Maryland, begotten and born in Pennsylvania, is free, and yet that issue would have been a slave, if the act of 1780 had not passed. According to the opposite argument, servitude for life has been commuted'to servitude for twenty-eight years, which is qualified, temporary slavery. But the act of 1780, sect.' 10, expressly confines slavery to registered slaves, and declares that all others are free; anti Atlbe, J., in The Com■monwealth v. Betsy, 1 Dali. 474, lays it dpwn,. that servitude for twenty-eight years is limited to the issue of registered slaves. Suppose a female slave were brought here from a neighbouring state and kept for more than six months; she becomes free; but if the doctrine contended for on the opposite side be correct, her issue would be servants until* twenty-eight, because that issue would have been slaves, but for the act of 1780. This would scarcely be pretended, and is directly contradicted by authority. Again, it has never been contended that the child of an unregistered slave was a servant till twenty-eight, yet the issue of such slave -would be a slave if the act of 1780, had never been passed. The servitude created by this law, is declared to be of the same nature as that of one bound by indenture for four years, and does not go beyond the immediate issue of a registered slave. Neither in the act of 1780 nor in that of 1788, is there any mention of the.grand-ehildrén of slaves. If hereditary servitude till the age of twenty-eight be preserved, slavery is not abolished, but remains in a qualified form for ever. The Commonwealth v.. Holloway, 2. Serg. & Rawle, 305. Wilson v. Belinda, 3 Serg. & Rawle.397.</p>

<p>The act of the 28th of March, 1814, erecting the town of Mercer, and the out lota . belonging to it, into a borough, does not vest in the borough officers-the power to lay out streets through the out lots, but leaves that power in the Coert of Quarter Sessions. .</p>

<p>IN ERROR.</p> <p>On an appeal from the judgment of a justice of the peace to the Court of Common Pleas of Allegheny county, to which this was a writ of error, William Jlsslin, the defendant in error and plaintiff below, filed a declaration in covenant aga‘inst Samuel Hamilton, the plaintiff in error, upon an article .of agreement in these words:—</p> <p>“ An article of agreement, made by and between Samuel Hamilton of the one part, and William Jlsslin of the other part, both of Jlllegheny county. The said Jlsslin doth agree to make and finish one. hundred' thousand brick, the common size, to bo good and sufficient; and said Hamilton is to find hands sufficient to attend in the making said brick, and said Hamilton to board said Jlsslin the time he is making said brick; and said Hamilton is to pay said Jlsslin the sum of one dollar twelve and a half cents-per thousand, in current paper, at the time of payment; and said Jlsslin is to make a sufficient quantity of stock brick for the building, gratis, and no pay for them, and Jlsslin to help to build a shéd, to make the brick, and said Hamilton is to pay said Jlsslin twelve and a half cents per thousand for digging the clay for the brick. In witness hereof we have set our hands and seals, this first day of Bpril, 1819.”' ■</p> <p>“ Samuel Hamilton, (seal.)</p> <p>“ William Jlsslin, (seal.)</p> <p>“Attest, Noble Calhoon.”</p> <p>On the trial,_ after the plaintiff below had given in evidence the agreement on which the action was brought, the defendant called Noble Calhoon, the subscribing witness to the agreement, and offered to prove by him that he drew the instrument, and that the clause therein, relating to the price of raising the clay, was inserted by mistake.</p> <p>The plaintiff’s counsel objected to the- evidence; and the court sustained the objection; whereupon the defendant’s counsel excepted to their opinion.</p> <p>cited Christ v. Diffebach, 1 Serg. & Rawle, 464. MlDerrtiot v. United States Insurance Company, 1 Serg. & Rawle, 604. Drum v. Simpson, 6 Binn. 482. Thompson v. White, 4 Dull. 426. Dingle’s Lessee, v. Marshall, 3 Binn. 587.</p> <p>referred to M‘Meen v. Owen, 1 Yeates, 138. Little v. Henderson, 2 Yeates, 235. Plankenhorn v. Ware, Id. 270. Mackey v. Brown, 13 Serg. & Rawle, Bowel on Cont. 432. Jackson v. Sill, 11 Johns. 215. Stevens v. Cooper, 1 Johns. Ch. R. 425,428. 4 Dali. 340. 3 Dali. 415. Miller v. Henderson, 10 Serg. & Rawle, 290.</p>