Volume 15 — Sergeant & Rawle's Pennsylvania Reports

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Perry county.</p> <p>A writ of replevin vVas sued out by the plaintiff below and defendant in error, Barnet dlughenbaugh, to replevy out of the possession of John Warner, the defendant, divers goods and chattels, viz. among other articles, that which was described in the writ as a lot of sundries. To this writ the sheriff returned, that the defendant claimed property, and bond was given. The declaration pursued the writ, and contained an item, described as a lot of sundries, valued at two dollars. Defendant pleaded property in himself, to which the plaintiff replied, property in himself absque hoc, 4’C. On these pleadings the parties went to trial, and the jury found for the plaintiff, and assessed the value of the property taken at seventy-three dollars and sixteen cents; and assessed the damages for the detention at twenty-five dollars and eighty-five cents, with costs of suit, and that he have a return, irreplevisable. It appeared on the record, that the plaintiff prayed a writ of retorno habendo, which had been issued.</p>

<p>In October, 1815, 5V. contracted with P. and E., to convey to them three tracts of land in July, 1818, and give them immediate possession, in consideration whereof, P. and E. agreed to pay one thousand dollars, in three annual payments, of three hundred and thirty-three dollars and thirty-three cents each : it was further agreed, that if P. and E. did not pay the monies at the times agreed upon, the agreement should be void, and P. and E. should deliver up the, possession to 5V. and pay rent for the time they occupied. P. and E. paid the first instalment, but no more: they afterwards abandoned the land, and 5V. took possession. Held, that 5V. was not bound to refund the instalment he had received, reserving a reasonable rent.</p>

IN ERROR. Error to the Court of Common Pleas of Adams county. Held: and claimed by Margaret Finley, under the will, and was duly and regularly registered by the said Margaret, who then remained unmarried, and the widow of the testator, on the 19th of October, 1803.

IN ERROR. On a writ of error to the Court of Common Pleas of Franklin county, it appeared that this was an action of replevin for sheep, brought by JLzabah Curtis against John Buzzard.' The plaintiff brought ten other actions of replevin against ten other persons, for sheep, all part of the same flock, and the property depending on the same title.

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Adams county.</p> <p>Henry Pickering, and John Hildebrand, his surety, entered into a recognizance to the Orphans’ Court of the .county of York, ■conditioned to secure the payment of the distributive shares of his brothers and sisters, arising from the estate of his father, taken by him at the appraisement. After the recognizance was taken, the plaintiff in this suit, who was the guardian of Rebecca Pickering, a daughter of the intestate, made an arrangement with Henry Pickering and John Hildebrand, to release the recognizance, so far as respected Rebecca’s claim, and to take, instead thereof, the bond of them, for the recovery of which this suit was brought.</p> <p>The defence relied on was, that, in pursuance of an agreement between Henry Pickering, the principal, and John Deardorf, the guardian, and without the consent of the surety, a scire facias was issued against Henry Pickering, on the recognizance, at the suit of Rebecca, a judgment obtained, on which there was a fieri facias upon which there a levy on the land taken at the appraisement, a venditioni exponas, and a return by the sheriff', that the land remained unsold for want of buyers. It appeared, that the proceeding in York county was intended to secure only the amount of interest, indorsed on the bond, as paid, which never had been received, Deardorf, having taken the note of Henry Pickering for the amount, which note Pickering had failed to discharge. The plaintiff gave the defendant credit for the payments indorsed on the bond, and relied upon the proceedings in York county, to recover it from Henry Pickering the principal. The suit on the recognizance was instituted since the commencement of this action.</p> <p>The defendant contended that these circumstances were an absolute discharge of him, as surety; and, secondly, if not an absolute discharge, they constituted a defence pro tanto.</p>

<p>The court may allow the jury to take out with them the statement of particular items of account by a party and calculations, but no item should be inserted, unless there has been some evidence given of it.</p>

in error. Error to the Court of Common Pleas of Adams county.

<p>The Pennsylvania Agricultural and Manufacturing Banlc, in part payment of their banking house by them sold to T. and I. II., received an assignment from one who was himself the assignee of a judgment, against IV. and M. B.; the assignors of the judgment in both instances guarantying, its payment. Between the date of the’lirst and second assignment, other judgment creditors of IV. and M. B. liad sold their property, and a surplus from the proceeds was left in the sheriff’s hands. Held, that whether or not the second assignor was liable on his guarantee, before the bank proceeded against the sheriff, depended on whether the bank, at the time of taking their assignment, knew of the execution issued and proceedings thereon.</p> <p>The relevancy or irrelevancy of evidence is a matter for the sound discretion of the court.</p> <p>A bank winding up its concerns, and selling out its banking house may receive in part payment therefor the assignment of a judgment against a third person.</p>

HABEAS CORPUS. The return to this habeas corpus, directed to Samuel Vance-, the keeper of the gaol of Franklin county, at the instance.of Pompey Cribs, who was in the custody of the said keeper, was, that he held him as the servant, till the age of twenty-eight years, of Lazarus Brown. It was admitted, that Pompey was the son of Grace, a registered slave, the property of James Maxwell, and that the right of Maxwell had been tranferred to Brown.

APPEAL. This case came tip on the appeal of Robert Peebles from the decree of the Orphans’ Court of Ctimberland county. The administration account of Robert Peebles, executor of William Huff, deceased, was examined and passed by the register of Cumberland county, on the 7th of February, 1825, and on the l'lth of May, 1825, it was presented to the Orphans’ Court for passage and confirmation, but the court refused to pass the same.

IN ERROR. Writ of error to the Court of Common Pleas of Cumberland county, to remove the proceedings of that court on a certiorari, directed to two justices of the peace of the county, who returned their proceedings on a complaint by John Krider, as landlord, against Jacob Hower, as his tenant, by which the latter was removed from the premises he occupied.

<p>In suits on b'onds, which were the consideration money of land sold, the parties agreed by writing filed in the cause, that the title was defective for part of the land, that the plaintiff' was to deliver a good title, and that if a good title should be delivered, the defendant claimed a deduction of various items stated, and that the court should determine the legality of these claims, and auditors should settle the amount: held, that the court, after deciding that the plaintiff could not give a good title for two sevenths of the portion of the land in question, might set aside the agreement so far as to order a'trial, and that their decision on the point was not a subject of a writ of error.</p> <p>Payment of taxes due by the prior owner is a subject of deduction from the purchase money, if a lien; but not payment to a patentee for the use of a hopper boy, &c. to a millj which were on it when bought, if the patent were void. Where the title of a part of the land, for the purchase money of which the suit is brought is defective, evidence of the situation of a mill-dam, race, &c. on the property, is admissible to show the relative value of the part obtained, compared with that which is lost.</p> <p>Married women may, jointly with their husbands, give a power of attorney to convey land in Pennsylvania, and, if duly acknowledged, the conveyance under it would be valid.</p> <p>Ten years from the date of the power does not raise a presumption of the death of the principal, at the time when an attorney executes a conveyance under such power, where there is no removal of the principal from his former abode.</p> <p>An act done by an attorney is valid, if it appears he did it as attorney, whether it be done in the principal’s name or in the attorney’s, as such.</p> <p>If the warrantor, on notice by the vendee to come in and defend the title, neglects to do so, the verdict is conclusive against him. If the vendee does not give notice, but defends, he cannot recover his counsel fees, and his own expenses, unless in case of absence of the warrantor, or fraud.</p>

<p>After a lapse of six years, with other circumstances, executors settling an account in the office, charging themselves jointly, are not allowed to settle separate administration accounts, whereby some of them are discharged as to creditors.</p>

<p>A declaration stating a cause of action, though informally drawn, is cured by ver» diet.'</p> <p>A set-off can only be of a payment made before suit brought—but if the plaintiff directs the defendant to malee a payment, and agrees it shall be a set-off, the courts, under their equitable jurisdiction, will allow it.</p> <p>A levy by a constable on defendant’s goods, fora debt of the plaintiff’s, in which he was bail, removed by the creditor and the goods released, does not constitute a set-off,</p> <p>A paper will not be allowed to go to the jury, containing a statement of items, of some of which there, is no proof.</p> <p>The President of the Court of Common Pleas is not bound to file his reasons in writing for rejecting evidence.</p> <p>Competency of evidence.</p>

<p>Where executors purchase the notes of a bank at a discount, and with them pay a debt due by the testator to the bank, the estate shall have the benefit of such discount, and not the executors.</p> <p>Where the accounts of executors filed on citation by guardian of infants were referred, and the Orphans’ Court confirmed the report of referees, held that the decree of confirmation was subject to appeal, and might be reversed for error in law contained in the report appearing on the answers and admissions of the executors before the referees.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Franklin county, in which the plaintiff in error, James Walker, was plaintiff below', in an alias scire facias issued against George Pennell and Henry Guiger, the defendants in error and defendants below, to revive a judgment rendered on a former scire facias.

IN ERROR. Error to the Court of Common Pleas of Franklin county, in a suit brought by the Commonwealth of Pennsylvania, plaintiffin error and plaintiff below, against John Shryock and James Jack, surviving obligors in a bond with James Brotherton, deceased, .in. which the verdict and judgment were rendered in favour of the defendant. ■This cáse was decided in the court below, on a statement of facts in the nature of a special verdict: John Shryock, one of the defendants, and…

<p>On the plea of release of dower, in an action of dower, evidence is not admissible on the part of the defendant, of a recovery by the plaintiff against the husband’s executors in covenant, on an agreement between the husband and wife previous to the marriage, by which, he agreed in case they lived together ten years, to pay the wife four hundred dollars. ,</p> <p>The wife’s dower is not barred by a deed executed and acknowledged by her with her husband, if it does not appear in the certificate of the acknowledgment that the contents of the deed were made known to the wife by the justice, nor that she did in fact know them.</p> <p>The act of assembly curing defects in the acknowledgments of femes, covert is constitutional: but it does not apply where judgment was rendered previous to its passage.</p> <p>Parol evidence is not admissible to supply defects in the justice’s certificate j but it is, to prove forgery or fraud.</p> <p>In dower, when the husband did not die seised, evidence of the annual value is not admissible.</p>

IN ERROR. The defendant below and plaintiff in error, Alexander P. Grimes, was convicted on an indictment for larceny, in the Court of Quarter Sessions for Cumberland county, and was sentenced to an imprisonment at hard labour for seven years. Error was now assigned in the sentence of the court. After argument,™

<p>When a justice of the peace has rendered judgment for the plaintiff, under the 14th section of the one hundred dollar act, for a sum exceeding one hundred dollars, the justice has jurisdiction of an action by the plaintiff against the constable for a false return to an execution issued in such suit, though the amount exceeds a hundred dollars.</p>

<p>To a scire facias by husband and wife, on a recognizance to recover the wife’s distributive shave, the defendant may set off money lent to the husband, before the recognizance was given..</p> <p>Query, whether a set-off can be. given in evidence, under the plea of payment wüth leave, unless there be a rule of court.</p> <p>It seems payments of money may be proved by a witness without producing receipts: 'but if receipts were given and are not produced on notice, nor accounted for, the party’s case will be affected by it.</p>

AMENDMENT. Case by Andrew Rodrigue, the plaintiff, against John Curcier, the defendant, in which the plaintiff went to trial before Duncan, J., in November last at Nisi Prius, on a declaration filed in February, 1822, containing the following counts:— First Count.

This case was tried before Duncan, J., at Nisi Prius, and a Verdict rendered in favour of the plaintiff for nine thousand five hundred dollars, and the jury found assets in the defendant’s hands, amounting to five thousand, one hundred, and twenty dollars: The defendant now obtained a rule to show cause why a new trial should not be granted, and filed the following reasons:— 1.

IN ERROR. This case came before the court by writ of error' from the Mayor’s Court of the city of Philadelphia; at the last December sessions of which court, M. D Lewer, the plaintiff in error, was indicted for larceny in stealing the goods of David H. Davis and Benjamin Oakford, trading under the name of Davis and Oak-ford.

IN ERROR. Error to the Court of Common Pleas of Northampton county. The plaintiffs in error, Peter Both and John Both, were also plaintiffs below, and Jacob Miller and Jacob Bauer defendants. There was a third defendant, George Keim, as to whom the sheriff, (being permitted to amend his return,) returned nihil habet. The action was debt upon a bond, in which the obligors were called executors of the estate of.

IN ERROR. This was a writ of error to the Court of Common Pleas of Delaware county, where the respective parties agreed, that these cases should be united, and the annexed statement be considered in the nature of a special verdict, found on the trial of each of these cases by a jury sworn to trj’ all the issues joined between the different parties.

IN EBROR. Error to the Court of Common Pleas of Northampton county, in an action of debt brought by Andrew Durling and Susannah, his wife, against James Neigh, executor of Andrew Neigh, deceased, and James Neigh, Jeremiah Neigh, and James Henderson, devisees and tenants of the lands of which Andrew Neigh died seised.

<p>Equitable principles are to be applied by a jury, under the direction of the court, in the same manner as legal ones; and the remedy, on motion for a new trial, is the same.</p> <p>What circumstances will give to a separate debt of some of the partners the character of a partnership debt.</p>

<p>information in nature of a quo warranto.</p> <p>A rule was granted by the court, in this case, against Matthew Arrison and others, the defendants, to show cause why an information in nature of a quo warranto, should not be filed against them for exercising the office of “ Trustees of the Ninth Presbyterian Church in PhiladelphiaThe defendants now objected, in the first instance, that the office they exercised was not the subject of an information of this description; and the point was argued by</p>

<p>Plaintiff obtained judgment before a justice of the peace, on the 31st of January, 1822, for thirty dollars and cos.ts. Defendant appealed, and gave evidence not given before the justice, and verdict and judgment were rendered for the plaintiff for thirteen dollars, on the third of May, 1823. Held, that the plaintiff was entitled to his costs before the justice, each party paying his own costs on the appeal, notwithstanding the 9th section of the act of the 28th of March, 1810, that section being repealed on the 1st of April, 1823, before the verdict.</p>

This case was tried at Nisi P.rius, in April, in 1S26, before Duncan, J., and a verdict was given for the plaintiff, subject to the opinion of the court.

<p>Agreement between B. and H., that H. should give his attendance and services in the grocei'y store, then carried on by B., and for such services B. should pay II. a salary of one thousand dollars per annum, as well as to pay and allow him a commission of seven per cent, on the profits arising from goods sold, after deducting the said salary and rent of store, which agreement was carried into effect: Held, not to constitute II. a partner.</p>

<p>Under the act of the 21st of March, 1814, regulating banks, (section 7, article 11,) the bank was justifiable in refusing to permit a stockholder to transfer his stock. who was the drawer of a note discounted at the bank, but not payable when the transfer was requested, he and the indorser having then become insolvent.</p> <p>The meaning of the word, “ indebted,” in the 11th article.</p>

IN ERROR. This case was tried before Gibson, J., at Nisi Prius, in March■ last, and a verdict was found in favour of the plaintiff for the sum of two thousand seven hundred and fifty-two dollars, and sixty-two eents, subject to the opinion of the court, whether the plaintiff was entitled to recover. The suit was by Mary Train, executrix of Hannah Nunez, against S. 2?. Fisher.

This was a motion by Kittera, for the plaintiffs, to'strike off a plea in abatement, filed by Charles Bird, Thomas Harp, and Robert Earp, three of the defendants, that “the said several promises and undertakings in the said declaration mentioned, (if any such were made,) were made jointly with one George Earp, who is still living, viz. at the county of Philadelphia, and not by the defendants in the above suit alone.” The suit was brought to July Term, 1824: the declaration…

This was an action of account render brought by Israel Whelen against John G. Watmough and Israel Downing; It was tried in November last at Nisi Prius, before Duncan, J., and a verdict rendered in favour of the defendants. The case now came before the court on a motion made by the plaintiff for a new trial.

IN ERROR. Error to the Court of Common Pleas of the county of Philadelphia, where judgment was rendered in favour of tjie defendant on the following case stated for the opinion of the court: By the act of assembly, passed the 9th of March, 1826, entitled, “a further supplement to an act, entitled, ‘an act to incorporate the District of Spring Garden,’ it is provided, that the board of commissioners of the said district, or a majority of them, shall have full power and…

m error. Error to the District Court for the city and county of Philadelphia, This action was brought by Jacob Boiler, the plaintiff below and defendant in error, against Joseph Hart, the plaintiff in error. The plaintiff declared in his first count, on a promissory note drawn by Charles Miller, payable to the defendant or his order, and indorsed by the defendant to the plaintiff, who discounted it.

in error. Writ of error to the Court of Common Pleas of Chester county. The defendant in error, David Havard, a minor, who sued by his guardians, John Elliott and John Marshall, brought this action of trespass vi et armis, &c. against John Davis and John Kvgler, the plaintiffs in error, for breaking and entering the plaintiff’s close, and cutting down and carrying away his trees.

The plaintiffs, John Bushel and William Seaward, issued a foreign attachment against the Commonwealth Insurance Company of Boston, Massachusetts, and attached certain property belonging to them, in the hands of Ralston and Lyman, as garnishees. A rule was obtained on the plaintiffs, to show their cause of action, and why the attachment should not be dissolved, on .the ground that it had been issued against a foreign corporation.

<p>Testator left four thousand dollars “to my daughter M. B., to be placed out at interest upon good security by my executors, and the interest to be paid to her annually or oftener, as they shall receive the same during her life, and at her decease she may will it to any of my daughter’s children as she pleases or sees fit; and, in default of her making a will and so disposing of it, it is my will that the same shall be divided amongst her sister’s children, share and share alike.” In another clause, she bequeathed the interest of a like sum to the two sons of a deceased daughter, with cross-remainders to their issue, and she had then a daughter M, H., who had several children: M. B. afterwards made her will, and meaning to execute the power, gave one thousand dollars thereof to her great niece, E. S., and the remaining three thousand to her sister, M. H., if she should survive her, if not, then to her eldest son, S. E. H.</p> <p>Held, 1. That the power was not well executed by M. B., either as to the one thousand dollárs or three thousand dollars.</p> <p>2. That in that event the whole money went to the children of M. H., and no part to the children of the deceased daughter.</p>

<p>Devise to testator’s wife of the rents, &c. of two houses, and so much of lands as should remain unsold after payment of debts, &c. for the maintenance, clothing, and education of his children, to hold to his said wife during her natural life, or until [whilst] she should remain his widow, said rents for the aforesaid, and for her own support: but if she should think fit to alter her condition by marrying again, then she gave to her 60 pounds per annum during her life, and in lieu of all dower out of said rents; and at the death of his wife, or upon her second marriage, to his said children, or the survivors of them, the said houses and lands, to be divided between them by his said wife equally, share and share alike, as soon as they, or either of them, arrive at 21; vesting full power in his wife at any time to order a division of the estate so devised to his children after her death or second marriage: held, that the widow took an estate for life in trust for the purposes declared in the will, with a vested remainder to the children in fee as tenants in common.</p>

This action was brought by the administrator of Walter Sims, deceased, against Benjamin Chew and William Raivle, to try the right to a sum of money in the hands of the defendants, it was tried before Duncan, J. at Nisi Prius, and a special verdict found, stating the following facts:— On the 6th November, 1806, Philip Nicklin died, being largely indebted to sundry persons, as well in his separate capacity as in his capacity of partner of the house of Nicklin 4’ Griffith.

<p>A. assigned his estate by indenture, dated the 28th of March, 1823, to B. C. and D., in trust, in the first place, and before any other debts due, or -which might be due by him to any person whatsoever, fully to pay and satisfy B. for any claim he then had, or thereafter might have on A. for any debt due to him, and to indemnify B. against any and every responsibility he then was, or might be under, for or on account of any promissory notes given or indorsed by B. for the use, benefit, or advantage of A. It was provided by the assignment, “ that no one of the creditors of A., nor should any one having claims on him, have, receive, take, or enjoy, any part of the estate assigned, unless such creditor or person should, within three months after the execucution of the said assignment, euh! notice thereof in two daily papers of the city of Philadelphia, execute aim deliver to A. a general release of all claims against him.” The assignment also contained a general power of attorney to the assignees, for the purpose of enabling them to execute the trusts created by the assignment, and to collect the estate, &c. B. C. and D. were parties to, and executed the indenture. B., previous to the date of the assignment, had drawn and indorsed several promissory notes for A’s. áccommodation, which were due and protested, but not-paid within three months from the date of the assignment; and, subsequent to that period, B., C., and D. by indenture assigned the trust estate to E. and F. upon the trusts of the indenture of March 28th, 1823. B., on the 23d of June, 1823, went to the office of his counsel, and there in his presence, and that of two of his students, executed one of three general releases, prepared by the counsel of A., at the time of preparing the original assignment, and delivered to each assignee. To the execution of the release one of the students was a subscribing witness; but B., instead of delivering the release to any one, put it in his pocket, and left the office with it in his possession. A., who left Philadelphia about the 17th of April, 1823, and went to New Orleans, returned on Sunday, the 30th of June, 1823, and on the following day the release was tendered to him on behalf of B., but he refused to receive it, and it was restored to the possession of, and remained with B.: Held, that there was sufficient evidence for the jury to find that the release of B. was delivered, and that he was entitled to recover from E. and F. in an action for money had and received, the amount of the notes he had drawn and indorsed for the accommodation of A., having paid the samp before he brought his action, though he had not paid them before he executed the release.</p>

<p>In ejectment between persons claiming under different locations, the defendant may give in evidence a lease made by bis predecessor at a particular time, to show a pursuit of title and improvements made, and known to the plaintiff before he purchased.</p> <p>In ejectment for a tract of land overflowed in part by a mill-dam, the owner of the mill situate on another tract is a witness, though it is alleged that the party against whom he is called will, in case of success, sue him for a nuisance: because the verdict here would not be evidence in such action.</p> <p>The owner of a lottery application of the 3d of April, 1769, precisely descriptive and lower in number, has a right to a survey, if obtained within a reasonable time, and mere lapse of time less than three years will not take away this right. \ The court ought not to be asked to state to the jury, as facts, matters which are disputed in the evidence, and ought to be decided by the jury.</p> <p>Whether an application is descriptive of land, the jury are to decide.</p>

<p>On a demurrer to evidence, the court are to take every fact sworn to against the parts demurring to be true, and cannot consider any testimony impugning the truth of the testimony against him.</p> <p>Where thei’e is an agreement for the sale of lands, and possession delivered, and money paid, but not to the amount, and at the times agreed on, and the owner resumes the possession, and declares that he does so because the contract is at an end, and he is determined it shall be so, this is a disaffirmance of the contract, and the other party may recover back what he has paid.</p>

IN ERROR. This cause was brought up by writ of error from the Court of Common Pleas of Allegheny county. It was brought by the executors of George Wallace, deceased, plaintiffs below, and defendants in error, against John Scull, and others, administrators of William Irwin, deceased, defendants below, and judgment was rendered for the plaintiffs below.

<p>It is no objection to the competency of a witness, that he has been found an habitual drunkard, in pursuance of the act of the 25th of February, 1819.</p> <p>The widow of the testator is a witness for the executors in a suit brought by them, where she has no interest in the result.</p> <p>In trover, by two executors, stating in one count a conversion in the testator’s lifetime, and in the other a conversion since Ins decease, one of the executors, the plaintiff, cannot make himself a witness by paying all costs that have accrued, and depositing fifty dollars, and offering to deposite whatever the court should think sufficient to cover the costs that might accrue: he still has an interest in his commissions on the estate, and the costs may be recovered back.</p> <p>It seems each case of this kind depends on its own peculiar circumstances.</p>