Volume 16 — Pennsylvania State Reports

Error, to the Common Pleas of Schuylkill county. This was an action brought by Samuel Marberger and Abraham Albright, against Benjamin Pott, as the security of William Audenried, on an obligation as follows:— $500. Pottsville, January 25, 1840. Six months after date, I promise to pay to the order of Sam’l Marberger and Abraham Allbright, of West Brunswig township, five hundred dollars, without defalcation, for value received, with interest.

<p>The rule of the common law as to the computation of time is to include the first day and exclude the last: therefore, where notice to a justice of the peace of an intended suit, given in pursuance of the first section of the act of 21st March 1772, was served on the 19th of May, and suit brought on the 18th of J une, it was held that the notice was given thirty days before suit. The decision in Goswiler’s Estate, 3 Pa. Pep. 200, was not well considered.</p>

On the 2d day of February 1848, Stephen Darlington petitioned the court, setting forth that he laboured “ under great inconvenience for want of a private road leading from the south-east side of his farm to the street road, near the west end of Painter’s bridge, over Brandywine.” Viewers were appointed, who reported a private road as prayed for. To this report exceptions were filed, which were overruled, and the report confirmed.

Dr. Coates, on the 9th day of December, 1836, executed a judgment bond and mortgage to George Brinton, to secure the payment of two thousand dollars. This bond, with the accompanying mortgage, was assigned, in 1839, to George W. Pennock, who, on the 23d day of March of that year, entered judgment on the bond, in his own name, as assignee of George Brinton.

Stout against George W. Eitzwater and John Eitzwater, Jr., for breaking and entering his close, at Upper Dublin township, Montgomery county, and taking and driving away five cows of the value of $ — , and converting them to their own use.

Tbis was an action of covenant by Thomas Wood against John Jones, to recover tbe alleged value of 25 acres and 128 perches of land, at $25 per acre. The Rev. Robert Annan owned a tract of land, situate partly in Lancaster and partly in Chester county, known as the “Annan Farm,” containing 412 acres and allowance.

This was an action of assumpsit, brought by Thomas O. Goldsmith against George W. Edwards, to recover the sum of $750, under an alleged contract with Edwards, contained in the following memorandum, which was admitted to be in his handwriting : — “ 15 lots, 250 each, on ground-rent, payable in ten years. Ground-rent deeds to be made at $300 and $250 cash advanced, in all $550 on each lot; each house to be of the cash value of $750.

This was an action of ejectment brought by Lyttleton Hubert, and Curtis Butler and Delia his wife, late Delia Chase, against Archibald Murphy, to recover possession of a lot, with the houses thereon erected, situate on Shippen street, extending to Bedford street, Philadelphia, and being twenty feet in front.

In tbe matter of the appeal of Neil Kelly from the deeree of the District Court for the city and county of Philadelphia, confirming the auditor’s report in the cases of Lanigan v. McAfee, D. C., fi. fa., March term 1850,192, and Patrick Kelly v. P. Earle and Neil Kelly, D. C., March term 1850, 218. In 1848 and 1849, Neil Kelly and Peter Earle were engaged in several joint adventures to Ohio, &c., for the purchase and sale of cattle.

William Short, the deceased, was, at the time of his death, on 5th December 1849, domiciled in Philadelphia, where he died. He owned no real estate in Pennsylvania, but he owned a large personal estate.

This was an action brought by Henry Baldauf against the Camden and Amboy Railroad and Transportation Company, as carriers of passengers and their baggage from New York to Philadelphia. The declaration contained three counts, charging the defendants below, 1. As carriers of passengers and their baggage. 2. As carriers of passengers and their luggage. 3. As bailees. The general issue was pleaded. The material facts appear in the special verdict.

This was a quo warranto to test tbe right of the city of Philadelphia to the franchise of taking toll and wharfage at the Penny Pot landing, alleged by the relators to be within the district of the Northern Liberties. This landing is an open space of ground on the east side of Front street, adjoining Yine street to the northward, containing 57 feet in breadth, and extending eastward to the river Delaware.

John Morgan, being seized in fee simple of tbe premises in dispute, made bis last will on tbe 6tb day of 8tb month, called October, 1744, wbicb will was proved on tbe 9tb day of December 1.744.

Appeal by James D. McClellan from the decree of the Register’s Court of the county of Lancaster. Joseph P. McClellan, late of Paradise township, Lancaster county, died intestate, at the residence of his son James, in Chester county, on the 25th of February last.

<p>1. In an action on a negotiable note brought by the payee against the drawer, the defendant may prove that the note in suit was given with another note, in lieu of a former note, which with other notes had been given by the drawer and another who was his partner, to another firm, for the purchase of certain personal property, and the lease of real estate, and that a portion of the personal property to a greater amount than the note in suit, had never been received by the purchasers, through default of the sellers, whereby there was a failure of consideration ; and that the original notes had been transferred by the payees to the payee of the note in suit, not in the usual course of business, but merely as collateral security against certain liabilities incurred by the holder for the payees, no new consideration passing between the holder and payees of the original notes at the time of the transfer.</p> <p>2. The circumstance that the suit upon the note had been tried several times before, and that the defence made in this suit was not then made, and that the note in suit had been given after a knowledge by the maker of the failure of consideration, will not preclude the defence, if the silence of the maker as to the failure of consideration did not mislead the holder, or unless the latter relinquished some advantages of which otherwise he might have availed himself, evidence being offered that the drawer, at the time of the giving of the new note, supposed that the transfer of the original note to the holder was in due course and for a valuable consideration.</p> <p>3. Consideration, like every other part of a contract, must be the result of agreement; and the circumstance that the new note was not signed by both of the parties to the original note, (one being accidentally absent,) and that it was payable at a longer period than the original note, will not preclude the defence, the old note having been split into two, and further time being given, merely for convenience, and not because of any new consideration contemplated by the parties, the release of the other party not inducing the execution of the new note; but if this hypothesis as to time and party were unfounded, it was not for the court to say so; whether there was any new consideration leading to the execution of the new note sued, was a question of fact for the jury.</p> <p>4. The party whose name was omitted in taking the new note, being released by the defendant, the maker of the note in suit was a competent witness in his favor, to prove a failure of consideration of the original notes, partial or total, after the original notes reached the plaintiff's hands, and that the note in suit was given for one of them.. *</p> <p>_5. The testimony of one of the payees of the original notes, given on a former trial of this case on the new note, was admissible on the part of the defendant to prove the consideration of the transfer to the plaintiff below of the original notes, the object not being to impeach the original notes; and it was not a valid objection to this testimony, that the jury might infer from other portions of the same testimony that the first notes were accepted as payment of preexistent debts.</p> <p>6. The inventory of the property for the purchase of which the former notes were given, was evidence, if the fact of its containing such an enumeration was established.</p>

<p>Error from the Oyer and Terminer of Lancaster county.</p> <p>This case came before the court on an application made by George Ford, attorney for the defendant in the court below, for a special allocatur for a writ of error, for cause shown, and the presentation of an authenticated copy of the record, &e., as follows, viz:</p> <p>Commonwealth v. James Hamilton, otherwise James Thacker.</p> <p>August Session, 1847.</p> <p>Indictment, 1st, 2d, and 3d counts, murder; 4th count, manslaughter. True bill. April 21, 1847. Same day, the defendant, James Hamilton, otherwise called James Thacker, being arraigned in open court, pleads not guilty, and de hoc, &c.; attorney-general similiter, issue, and rule for trial. April 21, 1849, the case continued to August sessions by consent of counsel for the commonwealth and counsel for the defendant. And now, August 20,1847,. the court in session, and all the judges on the bench, viz. Ellis Lewis, Esq., president, and Jac. Grosh and Emanuel Shaeeeer, Esqs., his associates; same day, James Hamilton, otherwise called James Thacker, indicted for murder, having been brought into court, the clerk -was directed to draw from the box containing the names of the jurors regularly and legally drawn, a jury in the case of the Commonwealth v. James Hamilton, otherwise called James Thacker, which having been complied with by the clerk, the following jury came; to wit, David Weiler, affirmed, &c., twelve sober, intelligent, and competent men, who, upon their oaths and affirmations, respectively do say, that the defendant, James Hamilton, otherwise called James Thacker, is “ guilty of murder in the first degree, and in manner and form as he stands indicted.” The jury (at the request of George Ford and W. L. Campbell, Esqs., counsel for prisoner) was polled, and each for himself pronounced the defendant, James Hamilton, otherwise called James Thacker, “Guilty of murder in the first degree.” The jury rendered their verdict August 22 (Sunday) 1847.</p> <p>August 23, 1847, the court, after hearing all the testimony and the verdict of the jury, sentenced the prisoner, James Hamilton, otherwise called James Thacker, as follows, to wit: “Whereupon all and singular the premises being seen and understood by the court here, it is considered by the court that the said James Hamilton, otherwise called James Thacker, be taken from hence to the place from whence he came, and from thence to the place of execution, and that he be there hanged by the neck until he be dead.”</p> <p>“ The prisoner, James Hamilton, otherwise called James Thacker, was present in court during every stage of the trial, from the time of his arraignment up to the period when the sentence was pronounced by the Honorable Ellis Lewis, president judge of the court, upon him. In short, the whole trial, from its commencement to its termination, was conducted according to law.”</p>

<p>1. An individual granted and conveyed for a nominal consideration, a lot of ground to certain persons in trust for those who had subscribed or may thereafter be subscribers towards the erection of a school-house and house of public worship thereon, and towards the support of a school, or the support of the gospel, in the said building, and providing, that if at any time thereafter, the premises should be converted to any other use than as aforesaid, and for a burying-ground, that in such case the lot shall revert to the grantor and his heirs and assigns. It was held, that the mere permission by one of the trustees to a female in distress, to occupy the premises temporarily, as a tenant at will, without rent, though she and her family remained in it for years, did not work a forfeiture of the estate to the grantor or his assigns.</p> <p>2. The declaration or admission of one of the trustees of a charitable trust in real estate, that the trust title had been divested, cannot affect the right of the persons interested under the trust. The trustees have no right to relinquish the trust property.</p> <p>3. Though in the case of a condition m law, none but the grantor or his heirs can enter for a condition broken, yet‘in Pennsylvania, where the doctrine of maintenance does not prevail, there is no policy of law which forbids the reservation of a right of entry to the assigns of the grantor. Therefore, in the case of such a reservation, a purchaser of the grantor’s conditional interest in the premises, at a sheriff's sale, is within the terms of such a reservation, and if a forfeiture exist, he may take advantage of it, though his purchase was before the condition was broken.</p>

<p>Interest on the balance in the hands of an administrator from the time of its receipt is not of course; circumstances may be shown by the administrator, which would exempt him from the payment of interest.</p> <p>2. Interest is an incident to a decree of the Orphans’ Court, as it is to a judgment in the Common Pleas.</p> <p>3. Where an auditor to whom the account of the administrator was referred to report upon exceptions to it, made report that a certain amount was in the hands of the accountant on the day of exhibiting his account, which report was simply confirmed in the Orphans’ Court: Held that it was error in an auditor to whom the account was referred for distribution of the balance, to charge interest on the balance reported from the day of the exhibition of the 'account, instead of from the day of the decree of the confirmation by the Orphan’s Court. The auditor appointed to report distribution is confined to the decree of the Orphans’ Court.</p>

<p>In an action on a contract for the sale of hogs, the declaration of the plaintiff alleged their delivery, which the proof failed to establish: an application was made during the trial for leave to amend the declaration by averring the readiness of plaintiff to deliver and the refusal of the defendant to receive and pay for the hogs, which amendment the court refused to permit: Held, that such refusal was error.</p>

<p>In the appropriation act of 11th April 1848, it was provided that the common school system shall be held to be adopted by all the school districts in the commonwealth, and that each school district levying a tax, shall ,be entitled to a deduction of twenty-five per cent, of all moneys paid into the county treasury by such district, for State purposes, during the two next ensuing school years; which school years by a former act, were to end on the first Monday of June of each year: It was held that the abatement was to be limited to the taxes assessed for the school years of 1848 and 1849, and was not to extend to taxes which had been assessed for the school year commencing on the first Monday of June 1850, but which had been advanced or paid into the county treasury before that day.</p>

This was an appeal by Samuel Summers, a creditor, from the decree of the Court of Common Pleas of Lancaster county, confirming the report of the auditor appointed to distribute the balance on the account of John Strohm, Esq., assignee of the -real estate of Christian Shultz, Sr., and wife.

<p>The land of a judgment debtor was sold by the sheriff and deed made to the purchaser whilst the grain growing on the same was the property of the debtor. After the execution and acknowledgment of the deed, an execution creditor of the debtor levied on the grain, and sold it, and the purchaser brought suit against the tenant of the purchaser of the land, for cutting and removing the grain: Held, that the grain passed by the sheriff’s sale of the land, and that the purchaser of the grain could not recover in the suit.</p>

Ebjior to the Common Pleas of Lancaster county. This was a suit by George Levan v. Levi W. Groff, involving the right to grain. A case was stated, embracing, with others, the following facts:— March 19, 1844, mortgage, Samuel W. Groff to the Farmers’ Bank of Lancaster, on 18 acres of land — same day, mortgage recorded. To November term 1847, scire facias on the mortgage. November 22, 1847, judgment for plaintiff for $8450.66. ‘ Levari facias to January term 1848.

Appeal, certiorari, and writ of error, to the Court of Common Pleas of Lancaster county, by J. H. Mifflin vs. The Harrisburg, Portsmouth, Mountjoy, and Lancaster Railroad Company. Appeal by Samuel B. Heise in a similar proceeding against the same company. And an appeal by Susan Bethel, in a similar proceeding. The complaint in each case was for alleged injury done by the construction of a railroad by the company, on the bed of a turnpike road.

<p>1. On an appeal from the judgment of a justice of the peace, it need not appear in the declaration that the claim of the plaintiff was for an amount within the jurisdiction of the justice; it is sufficient if that appear on the trial.</p> <p>2. In an action for service rendered, the plaintiff may show service rendered by his wife as well as himself, though her services are not mentioned in the declaration.</p> <p>3. In an action by the husband for service rendered by himself and also by his wife, the declarations of the wife, during service, as to the terms of her employment, are admissible on the part of defendant.</p> <p>4. In the case of a hiring for a year, at a specified sum per month, it is not competent for the employer, within the period contracted for, to reduce the amount of monthly pay, without the consent of the other party.</p>

This was an appeal from the judgment of a justice of the peace in an action of debt, by Shore v. Staines & Rough, on a note for $69.50, dated 18th March 1847, given by Staines & Rough to Shore for a horse sold by Shore, and purchased by Staines, at public auction. The horse died about thirty days after the sale. The purchaser did not offer to return him; but it was alleged that he believed, till shortly before the death of the horse, that he could cure him.

Error, to the Common Pleas of Adams county. This was an action of slander, brought by Bushey against Dottarer. The narr. contained seven counts; in the first of which the matter complained of is laid in the following words, viz. “Bushey is guilty of every thing that is mean and dirty. He lies, and swears, steals, and cheats. He has taken my wood.” In the 2d count the words laid are, “ Bushey has stolen my property.” In the Bd count they are laid, “ Bushey is guilty of theft.

This was an action on the case, brought by John Kuntz against Michael Harbold. ■ The executors of Harbold were substituted, after his death. The suit was brought January 17,1849.

This was a scire facias on a recognizance, issued in favor of Miller, Reed & Co., against Napoleon B. Alexander, as bail for stay of execution on a judgment before a justice of the peace, in favor of Miller, Reed & Co. vs. William A. Alexander. The recognizance of N. B. Alexander, on which the sci. fa. was issued, was dated 30th January 1843, and the stay of execution expired on the 12th October 1843.

Error, to the Common Pleas of Adams county. This was an action of. ejectment to August term 1849, by William Brandon, executor of the will of Templeton Brandon, deceased, against William Meals, Jr., to recover the possession of 13 acres 115 perches of unenclosed woodland in Huntington township, Adams county, in the possession of William Meals, Jr., the defendant below.

This was an action on the case, brought by Thomas Bowers against James Gordon, to recover damages for the non-performance of a contract made between the plaintiff and defendant, for the purchase and sale of a quantity of wheat. Upon the trial, the plaintiff gave in evidence a receipt given to him by defendant for $25 in part, for 300 bushels of wheat, to be delivered in the storehouse of Sterrett, Hughes & Packer. The store-house was at Howardsville, Centre county.

Ejectment by John T. Hoover, against Jacob Gratz and Joseph Gratz, for a tract of land, situate partly in Snowshoe township, Centre county, and partly in Morris township, Clearfield county, containing 406 acres or thereabouts. This action was in the nature of an appeal from a decision of the board of property, and was brought in obedience to the directions contained in the 11th section of the act of 30th April 1792: Dun. 1st ed. 146.

<p>A judgment in a sister State is to be deemed to have the effect of a domestic judgment, in relation to the cause of action; and where the defendant had notice it is conclusive of the subject-matter, and the original cause of action is merged in it: therefore, a suit pending in the State of Maryland, and a judgment subsequently obtained therein, is a bar to a proceeding between the same parties and for the same cause of action, by foreign attachment, instituted in Pennsylvania, after the-bringing of the suit and before judgment therein.</p>

<p>In a sci. fa. to revive a judgment, the pleas were nul tiel record, payment, and payment with leave. Replication non sol and that there is such a record. Arbitrators appointed under a rule entered under the act of 1836, found for plaintiff a gross sum: Seld, that the plea of nul tiel record did not exempt the case from arbitration, but that the arbitrators had jurisdiction of the whole cause.</p>

<p>Underthe 3d section of the act of 29th March 1824, either trespass or trover may be maintained for entering upon plaintiff's land, without his consent, and cubing and removing timber trees. If there be a trespass merely, double damages may be given; if, in addition, the trees felled have been converted to the use of the wrong-doer, treble damages may be recovered in trespass, and also in trover. By the words “ as the case may be,” is meant that if the trespass to the close be waived, and trover brought, treble damages for the injury done may be recovered in that form of action.</p> <p>2. Either the jury or the court may assess the double or treble damages.</p> <p>3. Double or treble costs mean, in Pennsylvania, double or treble the single costs: and so with respect to damages. The English rule as to costs in such oases does not prevail in this State. Per Rogers, J.</p>

This was an appeal from the decree of the Orphans’ Court of York county on the petition of Daniel Ervine, a legatee under the will of Patrick Ervine, deceased, praying for an order to sell certain real estate.

Errur, to the Common Pleas of Cumberland county. This was a qui tarn action of debt, by Jacob Longnecker, who sued as well for himself as for the Commonwealth of Pennsylvania, against Oyster, brought to April term 1850, under the act of 2d March 1723. The act is as follows :— Sec. 1.

<p>1. A testator devised to Ms son Eli, Ms heirs and assigns for ever, two tracts of land, subject nevertheless to, and charged and chargeable with the payment of six hundred dollars, to certain of the children of his son Joseph, to be paid to them or the survivors, share and share alike, viz: “ one-half of the said sum to be paid one year after his decease, and the other half two years after his decease, which sum of six hundred I do hereby bequeath to my said grandchildren, to be paid them as above stated and directed, and I do hereby charge the payment of the same on the tracts or parcels of land herein and. hereby devised to my said son Eli, his heirs and assigns.”</p> <p>After the execution of his will, the testator sold the devised lands to his son James for part cash and the major part of the purchase-money in payments, which did not become due till after the testator’s death. He devised to others of his children and grand-children pecuniary legacies; and he further directed that after the legacies and debts were paid, the balance of his estate should be equally divided amongst all his children, and the children of any that are deceased, share and share alike: Held, that as the legacy charged on the land devised to Eli, was to be paid by him as devisee in respect of the devise, and as a means of distribution among the testator’s children, the land being the sole source of payment, the sale of the land by the testator effected an ademption of the legacy.</p> <p>2. If a legacy be given with reference to a particular fund, only as pointing out a convenient mode of payment, it is to be considered demonstrative, and the legatee will not be disappointed, though the fund wholly fail. But where the gift is of the fund itself, in whole or in part, or so charged upon the object made subject to it, as to show an intent to burden that object alone with the payment, it is esteemed specific, and consequently liable to be adeemed by the alienation or destruction of the object. In such matters, the intention of the testator is principally to be ascertained; and it is necessary, in order to render a legacy specific, that the intention so to make it, clearly appear. Per Bell, J.</p> <p>See this opinion as to speeifie and demonstrative legacies.</p>

<p>1. Parol evidence is receivable in Pennsylvania to prove that a bond was fraudulently obtained, or that the consideration has failed.</p> <p>2. An agent having authority only to collect a debt, has no right to take a note for the amount of it, from the debtor to himself, and thus substitute himself as creditor; but if such an arrangement be afterwards ratified by the principal, the latter is bound by it, and the debtor is released from liability to the principal on the original claim.</p>

<p>The omission of a debtor to give notice before the sale of his real estate, of his claim to property to the value of three hundred dollars, under the act of 9th April 1849, exempting property to that amount from levy and sale on execution and distress for rent, will be a bar to his claim to that amount of money out of the proceeds of the sale. The claim, as it respects real estate, should perhaps be made before inquisition.</p>

<p>1. On the trial of an ejectmeut, drafts of land, offered before any title by warrant, location, or improvement is shown, are not admissible.</p> <p>2. The talk of neighbors as to who has the title to land in dispute, is not evidence.</p> <p>3. Drafts found in the office of the deputy surveyor, but no authority shown to the deputy surveyor to make them, may be evidence of boundary, on the part of the claimant under an improvement, if it be shown that when the improvement was commenced, the improver claimed to the lines of the draft and adopted them; but the papers of themselves are no evidence of title.</p> <p>4. Where a justice certified that the witness was sworn and examined at the place specified in the notice, on the day and between certain hours, being those specified in the notiee which was attached, it is sufficient evidence that the witness was sworn before he was examined, there being no evidence to the contrary.</p> <p>5. A notice being given that a deposition would be taken at the office of Joseph Stormer, Esq., in a certain township, a deposition taken at the office of Joseph Stermer, Esq., is admissable under the notice, unless it be shown that there were two justices of those names in that township.</p> <p>6. The declarations of one claiming in his own right by improvement, and living on the land, made at the time of the making of a survey by another under a warrant, are evidence against himself as to the extent of his claim: they are not evidence against another under whom he did not then profess to claim.</p> <p>7. The declaration or offer of a former improver (since deceased) whilst living on the land, to give his son-in-law, who was living on it, a part of the land if he would improve on it, and his aots of ownership on the land, are evidence that he claimed the same as his own, and not under another.</p> <p>8. It is not error to receive evidence which is pertinent and relevant, because it is not strictly rebutting; especially in a complicated case, and where the adverse party is not taken by surprise.</p> <p>9. The court may intimate to the jury an opinion that there has been an abandonment, and submit the facts to their consideration, with instructions as to what constitutes an abandonment.</p> <p>10. It is not essential that the court bring to the notice of the jury all the evidence in relation to a subject on which they charge.</p> <p>11. If one claiming in his own right, by settlement and improvement, did not object to the location of a warrant on land adjoining his improvement, his subsequent deed cannot affect the location of the warrant: if he claimed under another when the warrant was located, his agreement to the location of the warrant cannot affect him under whom he claimed, or his alienee.</p> <p>12. If the description in the writ, of the land for which the ejectment is brought, be defective, the defect may be supplied by another description filed with leave of the court.</p>

<p>Under the act of 13th June 1836, relative to lunatics, when the Court of Common Pleas has decreed an allowance out of the proceeds of sale of the real estate of a lunatic, for his maintenance, the amount is not to be exceeded without the sanction of the court. The estate of a lunatic is subject to the control of that court. '</p>

This was an action of ejectment by Jonathan Jessup, administrator with the will annexed of Joel Willis, deceased, against .Levi Smuck and Joel Fisher. Held: and subject to the same conditions and payments.” The condition of dying before he marries could not be annexed to the gift to Joel, who was already married, and yet he was to hold as Samuel held, and subject to the same conditions and payments.

<p>The transcript of a judgment in the Common Pleas, entered in another county, in pursuance of the act of 16th April 1840, is not a very judgment of the court of the county in which it is entered, hut is a quasi judgment for limited purposes; it is evidence of a judgment in the court in which it was originally obtained. The original judgment having been set aside at the instance of the defendant, for irregularity, and the execution in the second county stayed, the judgment on the transcript fell with it; and the plaintiff having obtained a new judgment in the case, but no transcript of it having been entered, had no lien in the county in which the transcript had been entered.</p>

This was a suit by Jacob Rheem vs. Samuel Holliday, to recover the amount of a note dated 16th March 1847, given by Samuel Holliday to Michael McMath or bearer, for $200, and endorsed by McMath to Jacob Rheem. Defendant gave evidence that the note was negotiated after its maturity, and that the consideration for said note was the sale of the patent-right of Howd’s improved water-wheel, for the county of Mifflin, Pennsylvania.

<p>The 48th section of the act of 29th March 1832, relating to Orphans’ Oourts, which enables the Orphans’ Court to require security from a husband before money payable to his wife under proceedings in partition is paid to him, does not apply to the case of a female unmmried at the time of the partition; and the payment to a future husband, without security, will discharge the recognizance, so far as the wife is interested.</p>

<p>This was an action of ejectment, brought by Samuel Thompson, Jr., against Joseph B. Knouff, to recover a lot of ground in New Buffalo, Perry county.</p> <p>On the trial, both parties admitted that the title to the lot in dispute had been in Jacob Baughman, and they both claimed through him.</p> <p>Plaintiff gave in evidence a deed for the above lot from Jacob Baughman and wife to Christian Baughman, dated 19th June 1820, and recorded 3d May 1824. Consideration, $60.</p> <p>Also, deed from Christian Baughman, to Samuel Thompson, Jr. dated April 14, 1824, and recorded May 3, 1824. Consideration $85.</p> <p>The defendant then gave in evidence a deed from Samuel Thompson and wife (the parents of Samuel Thompson, Jr.) to the above named Christian Baughman, for a fishery on the Susquehanna, dated April 14th, 1824, and recorded May 3d, 1824. Consideration, $85.</p> <p>This deed was of same date, for same consideration, acknowledged before same justice, and recorded at same time as the deed from Christian Baughman to Samuel Thompson, Jr. Baughman was the brother-in-law of Samuel Thompson, and uncle of Samuel Thompson, Jr., to whom he conveyed, who was then a lad about eight years of age.</p> <p>Defendant then gave in evidence a deed from Samuel Thompson and wife (the parents of Samuel, Jr.) to William Parson, for the lot in dispute, dated March 2d, 1829, and recorded July 6th, 1833. Consideration, $30. This deed referred to the deed to Samuel Thompson (omitting junior) as being of record.</p> <p>Sheriff’s deed for same lot sold as property of William Parspn to Christian Livingston, dated April 5th, 1836. This deed embraced other property as well as the lot in dispute.</p> <p>Deed of Christian Livingston to Henry Thatcher for lot in dispute, and other property adjoining, dated August 1, 1843, and recorded November 7, 1843.</p> <p>Deed of Plenry Thatcher to Joseph Knouff, the defendant-below, for lot in dispute and adjoining lot, dated September 11, 1845, and recorded August 5, 1846.</p> <p>Defendant then proved that in 1824, the time of the execution of the deed from Baughman to Samuel Thompson, Jr., Samuel Thompson, the father, was insolvent — that judgments were entered against him to more than all his property sold for afterwards— that his son Samuel was twenty-one about 1836 — that William Parson, after he bought, fenced and used the lot as a garden to the adjoining house, which he built after he purchased this lot. Christian Livingston bought in 1836, and occupied the lot till 1843. During all this time the plaintiff lived within two hundred yards of the property, was of full age, and never made any claim. Henry Thatcher bought in 1843, and sold in 1845. He lived on the adjoining lot for seven years before he purchased, as tenant, and occupied the lot in dispute as a garden to the house he lived in. Thatcher fenced the lot while he owned it, and it was alleged on part of defendant below, that neither he nor Livingston ever heard or knew of the present claim while they occupied or owned the lot now in dispute.</p> <p>Thatcher sold to Knouff, the defendant, in 1845, who has occupied it since that time, put a good fence of palings round it, built a smoke-house, and there was no evidence that he ever heard or knew of the present claim until this suit was brought, the 16th of January 1850, but one month and sixteen days before the claim would have been barred by the statute of limitations, (Parsons having occupied from March 2, 1829,) and fourteen years after plaintiff attained the age of twenty-one.</p> <p>During all this time plaintiff lived within two hundred yards of the lot, from 1829; knew of the purchase by Thatcher and his sale to Knouff, and knew that the deed by Baughman in 1824, was made in his name.</p> <p>Samuel Thompson, Sr., was called on part of plaintiff: — I cannot say what was the amount paid me by Christian Baughman for the fishery. I owed Boas & Kepner an account and Christian Baughman assumed to pay it. That was the consideration for the fishery. I did not pay any part of the consideration of the deed from Christian Baughman to Samuel Thompson, Jr. . The squire, when writing the deed, asked what consideration he should put in; I told him it was immaterial, he might put in what he chose. He said it would not look well without some consideration. When I sold to Parson he was then the owner of the corner lot, which he had purchased about the same time. I cannot remember certainly. But when he was going on to build, he found he could not go on with his building without that lot which is now in dispute. He got at me to sell him the lot adjoining. I told him I had not the title; it was in Samuel Thompson, Jr. He said he knew that, but if we would make a deed and give him possession, when Sam came of age, if he claimed it, he would make it right with him. He was at me several times before I did it.</p> <p>Cross-examined: — The limekiln property at the mountain was sold once and bought by Mr. Ramsey. There were executions against Baughman and me both at the same time. I was never out of possession of it. The title of the limestone place was in Noland. I had an interest of $300 in it for my services. I got goods for the $30, the consideration of the deed from me to Parson. Mr. Christian Baughman said that he was giving the lot to the boy, which he conveyed that day when Squire Davis was present. I could live along and pay my debts in 1824 — sometimes I was harassed, but I was able to pay all demands against me.</p> <p>He afterwards said that the fishery was of little value.</p> <p>The defendant’s counsel submitted the following points:—</p> <p>1. If the jury believe that in April 1824, when the deed was executed by Christian Baughman to Samuel Thompson, Jr., who was then a boy about eight years of age, the consideration for the purchase was paid by his father, Samuel Thompson, Sr., by the conveyance of the interest of the father in a fishery to said Baughman as per deed of same date, and that at the time of said conveyance the father was embarrassed and unable to pay his debts, such conveyance would vest no title in the son, and he could not recover in the present action.</p> <p>2. If the consideration was paid by the father when the property was conveyed by Baughman to his son, the equitable and beneficial estate would be in the father, and pass by his deed to Parson, and is now by the chain of title'in evidence vested in the defendant, and plaintiff cannot recover.</p> <p>3. If the jury believe that Samuel Thompson, Jr., attained the age of twenty-one in 1836, the same year the lot now in dispute was purchased at sheriff’s sale by Christian Livingston, and that said Thompson lived in the same town and within two hundred yards of the property, and saw and knew and permitted the said Livingston and Henry Thatcher his vendee, and the present defendant, the vendee of Thatcher, to fence and improve and occupy said lot by planting trees thereon, converting the same into a garden and building a smoke-house thereon, and this for a period of fourteen years, without giving any notice of his claim or title, he is now estopped from recovering the lot in controversy in this suit.</p> <p>Watts, President. This is an action of ejectment for a lot of ground in which both parties claim under the same original title, which was in Christian Baughman ; who, on the 14th April 1824, conveyed the same to Samuel Thompson, Jr., the plaintiff. At that date the plaintiff was only six years of age ; but a conveyance to him at that age, if otherwise honest and right, is just as valid as if he were of lawful age. But the defendant’s title rests upon the allegation that the conveyance was made for the fraudulent purpose of concealing the property by Samuel Thompson, Sr., his father, from his creditors — and in corroboration of this view he has given in evidence a conveyance by Samuel Thompson, Sr., of the property to William Parson, dated the 2d March 1829, and this title has been regularly deduced to the present defendant — and to show the motive which influenced this fraud, evidence has been given of the embarrassed condition of the circumstances of Samuel Thompson, Sr., at the time. Now, this is the point in the cause, a matter of fact, which peculiarly belongs to the determination of the jury. We, therefore, answer the defendant’s first point by saying that it is a true exposition of the law, and if the jury believe the facts therein stated, the verdict should be for the defendant.</p> <p>The defendant’s second' point we cannot answer affirmatively, for it is competent and lawful for a father at any time to make or procure a conveyance to be made to his child for the purpose of advancing his interests; and if the transaction is honest and with no view of affecting the interests of creditors or any one else injuriously, no exception can be taken to it.</p> <p>In answer to the defendant’s third point the court say: — An estoppel, if the facts which are alleged to constitute it are found by the jury, is a legal bar to an inquiry into the merits of any other question in the cause, and would necessarily in this case produce a verdict for the defendant, independent of the truth of the case, as respects the validity of the deed of Christian Baughman to Samuel Thompson, Jr., as vesting the title in him. Wo are of opinion that the facts of this case forbid that we should give the instruction asked.</p> <p>The notice which the law requires that a man should give of his title, is that he record it; and this deed to Samuel Thompson, Jr., was duly recorded and was therefore legal notice to all the world that the title was in him, and this deed was actually recited in the deed to William Parson. The facts, therefore, stated in this point do not estop the plaintiff from a recovery in this case if he be otherwise entitled. Then let us come back to the point from which we started, and determine the cause upon it, for there is nothing else in it.</p> <p>Was the transaction by which the deed was made by Christian Baughman to Samuel Thompson, Jr., an honest one ? Or was the consideration for it paid by his father, and the deed made to the son to conceal that title from his creditors ? As you determine this point, so determine the cause for the plaintiff or for the defendant.</p> <p>To this charge the defendant excepted.</p> <p>Verdict was rendered for plaintiff.</p>

<p>Where a husband assigned a bond given to him for his wife’s interest in real estate, without receiving value therefor, but by an instrument under seal expressing the transfer to be for value; and the assignee during the coverture assigned the same to another/br value; the second assignee, not having knowr ledge or the means of knowledge that the former assignment was without consideration, is entitled to the bond or its proceeds against the claim of the wife who brought suit after obtaining a divorce.</p>

<p>1. The record of the Orphans’ Court is evidence of the appointment of a guardian; the issuing of a certificate of the appointment is not material; an act as guardian, by the person appointed, is an assumption of the trust.</p> <p>2. Guardians are liable for wilful default or gross negligence ; but they are allowed the exercise of reasonable discretion and prudential care in managing the property of their wards. Therefore, where a guardian permitted the rents of a small property to be received by the widow, and the share of the ward in the rents to be applied by her to the maintenance and education of the ward, who was her son and was residing with her, the guardian is not accountable to the ward for the rents, the said rents not being an unreasonable provision for the purpose.</p> <p>S. The balance due the administrator of the estate in which the ward is interested, upon the settlement of the administration account, and which is a charge upon the estate, if paid out of the rents is a proper credit as against the ward, in a settlement for the rents.</p>

<p>A testator devised as follows“ I give to my wife Maria tbe use and income of my plantation, the whole lying and being situate in Alsace township, for her support and maintenance during her life. Item, I give and bequeath to my youngest son Daniel Maurer, the whole of the aforesaid plantation ; also, my woodland, containing about fourteen acres, lying on Penn’s Mount, after the decease of my said wife Maria; and if my son Daniel should be a minor at the decease of my said wife Maria, then my will is that my executor, hereinafter named, shall rent or lease the said plantation until my said son Daniel shall arrive at the age of twenty-one years. Item, if my aforesaid son Daniel should die, under the age of twenty-one years, and without lawful heirs, then my will is that my said plantation shall be sold by my executor, providing it be after the decease of my wife Maria, and the whole of the proceeds to be equally divided among the lawful heirs of my son George, the lawful heirs of my daughter Maria, and the lawful heirs of my daughter Sarah, provided, always, that if my son Daniel survives and begets lawful heirs, then after his decease, the proceeds of the said plantation to be equally divided, share and share alike, to the heirs of my son DanielA conveyance was made by Daniel to bar the entail, and he tendered a deed in fee simple to the purchaser of the estate with whom he had contracted to convey such an estate : Held, that Daniel had such an estate in the premises as the purchaser was compellable to take. The estate which he derived under the will was considered by this court to be an estate-tail.</p>

This was a suit in the name of N. B. Eldred, President Judge of the Orphans’ Court of Dauphin county, for the use of Simon Lingle and Susanna his wife, now for the use of Thomas S. Lingle, vs. John Stoner, a co-recognizor with John Crall.

This was an action of trover and conversion, brought on the 9th of August 1847, by the Juniata Bridge Company against John Forster, who resided in Harrisburg, for the recovery of a portion of the timber and other materials of one span of a bridge that was swept off by the great flood in March 1846, and lodged on the upper end of the island of the defendant opposite to Harrisburg.

& F. Bright. The plea was non assumpsit A verdict was rendered for the defendants. The plaintiffs were partners in a clothing store. John Darrah owed them upwards of $100 — in payment of which debt they were to take brick. McKinney drew an order in the name of the firm, on account of his own separate debt, in favor of the defendants, on Darrah, for brick, to the amount of about $90.

<p>This was an appeal by Samuel Moyer from the decree of the Orphans’ Court of Dauphin county, decreeing that the' executor of Ann Margaret Harrison, deceased, should have paid to him out of the land devised to Williamson Harrison by Alexander McKenzie, charged with a legacy to Sarah McKenzie during her lifetime, the sum of, &e.</p> <p>Alexander McKenzie died testate in 1818, leaving a widow named Sarah, and two daughters, viz. Jane intermarried with Williamson Harrison, and Polly with John Duncan. He devised to his son-in-law, Williamson Harrison, a tract of land, which testator valued at $1600, and charged the said land with the payment of the interest on the one-third of said sum to his widow during her life, and the said third, at the widow’s decease, was to be equally divided between his two daughters. Williamson and Jane Harrison had issue, four children, one of whom died intestate, unmarried and without issue. Jane Harrison died in the year 1823. Williamson Harrison made his last will and testament on the 24th February 1824, in which he directed his executors to sell said tract of land. On the 29th March 1826, after Williamson Harrison’s death, his executors accordingly, by their deed duly executed, granted, bargained, and sold said tract of land to John Duncan, who was married to Polly, the surviving daughter of said Alexander McKenzie. The said John Duncan afterwards sold the said tract of land to John Moyer, who transferred his equitable title to Samuel Moyer — whereupon the said John Duncan, on the 23d February 1844, by his deed duly executed, granted, bargained, and sold the said tract of land to Samuel Moyer, the respondent; and in the deed to Samuel Moyer, said land is charged only with the payment of $32 to Sarah McKenzie annually during her natural life. On 12th February 1846, Sarah McKenzie died. These proceedings were instituted to charge said land, now owned by Samuel Moyer, with Jane Harrison’s alleged interest in the legacy of one-half of the third made payable at the death of the widow McKenzie.</p> <p>The petition was by Anna M. Plarrison, the only surviving child of the said Jane Harrison, who was a daughter of Sarah McKenzie, and who claimed to be entitled, with her brother, John C. Harrison, to the one-half of the third devised to the said Sarah McKenzie during her natural life.</p> <p>The material points in controversy were alleged to be — 1. W. Harrison having acquired title to the land, under the will of Alexander McKenzie, charged with the payment of the interest of one-third of the purchase-money to the widow during her life, and of said third at the widow’s decease, in equal moieties to his (Williamson Harrison’s) ivife, and to the wife of John Duncan; and the said Williamson Harrison having survived his wife, what interest had he in said tract of land, as well by purchase as by his marital rights «and survivorship ?</p> <p>2. As Jane,-the wife of said Williamson Harrison, was entitled, as legatee under the will of Alexander McKenzie, to the one-half of said third payable by her husband at the widow’s decease, was not her legacy merged in the fee simple which was in her husband, and, did not the conveyance under Williamson Harrison transfer to the purchaser his absolute estate, future, reversionary, contingent, and certain, and operate as an extinguishment of the legacy by way of release or assignment ?</p> <p>There is no pretence that creditors existed. Jane Harrison has been dead twenty-seven years, and Williamson Harrison twenty-six.</p> <p>The court below decreed that Henry Peffer, executor of Anna Margaret Harrison, deceased, shall have paid to him, out of the land devised to Williamson Harrison by Alexander McKenzie, charged with the legacy to Sarah McKenzie during her lifetime, the sum of eighty-eight dollars and eighty-nine cents, with interest thereon from the 12th day of February 1846, the time of Sarah McKenzie’s death — with the costs of this proc.eeding, and that he have all legal remedies for the collection of the same against said land, being now in possession of the respondent, Samuel Moyer. Exception was filed, that the Orphans’ Court should have denied the prayer of the petitioner, the claimant not having any legacy unpaid charged on the land of Samuel Moyer, and the proceedings being without proper parties, and unlawful.</p>

<p>A testator devised to his wife during her life or widowhood, the use and possession of all his real and personal estate, with an exception in favor of his unmarried daughters, with respect to whom, he provided — “ As each of my married daughters have already received one hundred pounds, Pennsylvania currency, on account of their future inheritance (or heritage) without being obliged to pay interest for the same, so it is my will that the rest of my daughters shall also receive one hundred pounds, Pennsylvania currency, on the same account, whenever they marry and should require the money to purchase real estate, without being obliged to pay interest therefor; and besides each of my daughters shall receive at their eventual marriage the same outfit as the others have received before them.”</p> <p>“ And as touching the land or real estate, the same shall remain as above said in the possession and enjoyment of my dear wife till her death or remarriage. The right of possession of the whole of my real estate I herewith devise to my two sons, Daniel and Joseph, however they shall not have the immediate possession and use of the same till after the death or remarriage of my wife, to enter upon and divide the real estate as, they may deem it suitable, and they are to pay for the whole of my aforesaid land, or real estate the sum of two thousand pounds, Pennsylvania currency, which two thousand pounds are to be divided in nine equal shares, and each of my beloved children, namely, Daniel, Joseph, Sarah, Susanna, Esther, Catharine, Hannah, Lydia, and Elizabeth, share and share alike.</p> <p>“ All the remaining goods, namely, the money that arises out of the sale of the house and kitchen furniture, the outstanding money and bank stock, shall after the death or remarriage of my wife be divided in equal shares amongst my nine children: Held, that tho sons were each entitled to receive ¿6100, so as to make them equal with the daughters, and that the balance of the estate be equally distributed among the sons and daughters.</p>

<p>1. The ordering a causé for trial, or its continuance, is a matter within the discretion of the court below, and is not examinable on error.</p> <p>2. In a suit upon a note, defendant offered to prove by the deposition of a witness (who had a (Supervision of the store and store-accounts of defendant and his partner, but who did not state that he made the entries, or sell or witness the sale of the goods, or the nature of the charges in the books,) the balance of a store-account on said books which were not produced ; and also that a pass-book belonging to the plaintiff and containing entries of goods got by plaintiff from the said store, corresponded with the books, and which pass-book the plaintiff’s counsel was notified to produce on the trial, but the notice was too late to admit of its production, and the pleas did not give notice to that effect: It was held, that the books of defendant, being the proper evidence, should have been produced, and that it was not error to reject the evidence offered.</p>

This was an action of ejectment in the Court of Common Pleas of Berks 'county, by Sarah Ermold vs. Jacob Newkirk and John Newkirk, for a house and lot in the city of Reading. Yerdict and judgment for the plaintiff for one undivided sixth part of said lot. The plaintiff sued out this writ of error.

<p>1. In a suit on a recognizance in the Orphans’ Court given by an heir who took one of three purparts at the appraisement, executed in favor of the Commonwealth for the payment to the other heirs their proportional shares in the purpart, it was admissible for the recognizor, the defendant, under the plea of payment with leave to show that one of the other purparts, not taken at the appraisement, was sold by a trustee under order of the Orphans’ Court, and that all of the balance of the proceeds, after payment of debts of the intestate, was paid to the plaintiff, and that the defendant in the suit never made any objection. The fact whether or not it was received as part payment, should have been submitted to the jury.</p> <p>2. Such a recognizance should be sued in the name of the Commonwealth as the legal party, though it is proper that'the name of the persons suing, should be stated on the record. A mistake however, in this respect, will not furnish a defenóe against the Commonwealth, as the court should look to the distribution of the amount recovered. The judgment should not be for the penalty, but for the amount of the interest of those suing.</p> <p>■ 3. It is not necessary that all the castes que use should be marked of record. Less than the whole number may sue, and they may recover as much of the fund as they show themselves entitled to, leaving the balance for those entitled who may afterwards sue. But where they represent one heir, their joinder in the suit would seem to be peculiarly proper.</p>

<p>A testator devised to his wife “ the sum of one thousand pounds, during her lifetime, and'after her decease to be equally divided amongst my children, that is to say as follows: the one thousand pounds above mentioned to remain on my plantation in Alsace, as a dower during her lifetime.”</p> <p>“ Third, I will and bequeath unto my beloved wife all my household furniture and kitchen utensils, as much as she may choose to keep for her own use. I will that my beloved wife shall maintain and educate my minor children during their minority, out of her yearly dower.”</p> <p>“ Fourth, I will and bequeath unto my son William all my plantation in Alsace, together with the woodland at the hill, he to pay sixty-fioe dollars (§65) per acre for the same, in the following manner: First, one year after my death, he shall pay all my just debts,’ and after deducting my just debts and the above dower of my beloved wife, then the balance shall be equally divided amongst my children, that is, my son William shall buy a house and furniture for my daughter Rebecca by the first day of April next, to the amount of §350 — and buy a house and furniture for my daughter Lavina, for §350 three months after the day of her marriage — and after having paid all the above items, then I will that the balance remaining, together with all my other property] shall be equally divided,'such as bonds, notes, and the different bequests heretofore mentioned, amongst my children as follows, to wit, my son William shall pay the one-half of the part that shall fall to one of my children to my youngest son Augustus when he shall come to the age of 21 years — and the next or following year he shall pay the one-half of the part falling to my daughter Catharine, wife of David Engle — and the following year he shall pay the one-half falling to my daughter Rebecca, wife of John Clouser — and the following year he shall pay one-half of the part falling to my daughter Lavina, and following year he shall pay the last part to my son Augustus — -and so on year after year agreeable to the names above mentioned, until all the different parts or sums are paid.”</p> <p>Held, that William, the devisee of the land, was entitled to a share of its proceeds in common with the other children, and that the direction to him to pay was not inconsistent with the idea of retention by him of a portion of the fund.</p>

<p>The principle of substitution or subrogation rests in equity only, and is not to be carried out when it would work injustice to the rights of others ; therefore, G-. M., a judgment creditor, whose judgment was entered in Cumberland county, was not entitled to be subrogated to the judgments in Franldin county of M., whose judgments originally entered in that county had been subsequently entered by transcript in Cumberland county, and there paid out of the sale of the defendant's real estate in the latter county, when the substitution would have been to the prejudice of J., whose judgment in Franklin county was entered after the judgment of M. was obtained there, but before the judgment of Gr. M. was obtained in Cumberland county.</p>

<p>1. A debtor by book-account assigned to bis creditor a promissory note and also a book-account, with an .agreement under seal that in case the same could not be recovered of the persons indebted, then the assignor to pay the amount with charges thereupon, the assignor agreeing to notify the counsel of the creditor when the debtors came to the neighborhood where they were to be proceeded against, which information he never gave; the attorney of the creditor agreeing that if any thing remained after discharging the claim of the creditor, it should be returned to the debtor: Held, that there being no agreement to receive the note and book-account in satisfaction of the original indebtedness, the assignment was but a collateral security; that under the 5th section of the bankrupt act, the claim of the creditor on the said contract of guaranty was provable against the estate of the debtor, who was subsequently discharged as a bankrupt, and that the debtor was consequently discharged from liability to the creditor. See remarks on cases of McMullin v. Bank of Penn Township, 2 Barr 343, and Cake v. Lewis, 8 Barr 493.</p> <p>2. Whether a note or bond is accepted in satisfaction of the original claim is for the jury to decide, and not for the court as a matter of law.</p> <p>3. Where claims transferred to a creditor consist of the indebtedness .of others, and there is no agreement to receive the same in satisfaction, they are to be considered as collateral security for the original debt.</p>

<p>1. In an action on the case to recover damages for an injury sustained by plaintiff from his falling into an area-way, or passage dug in the pavement, leading into the cellar of defendant’s house, erected on a public street in Harrisburg, and through the culpable neglect of the defendant left exposed, by which the plaintiff’s leg was broken, it was held, that if by ordinary or reasonable care on the part of the plaintiff, he might have avoided the injury, he was not entitled to recover; otherwise he was entitled to recover.</p> <p>2. What shall be deemed ordinary care must depend on the circumstances of each case, of which the jury is to judge; and if there be no facts proved from which a deduction can be drawn, the presumption is against the defendant whose misconduct rendered the accident possible.</p> <p>3. In such a case it is not incumbent on the plaintiff to prove the exercise by him of ordinary care to avoid the injury, but the proof of the want of it on the part of the plaintiff lies on the defendant. He, who avers a fact in excuse of his own misfeasance, must prove it.</p> <p>4. It was competent to prove by a witness who examined the place where the ' accident occurred, but who was not present when it occurred, that in his opinion the place was dangerous.</p> <p>5. It was not error for the court to term a dangerous opening in a much frequented street, in a large town, a public nuisance.</p>

<p>1. In a contract between the original contractors with the York & Cumberland Railroad Company and a sub-contractor with them, it was provided that the work should be subject to the supervision and control of the engineer of the Railroad Company; that he should make monthly estimates, four-fifths of which value to be paid to the sub-contractor, and when the work was completed, a final estimate; that the monthly and final estimates as to the quantity, character, and value of the work done shall be conclusive between the parties. And further, that if the contractor should not truly comply with his part of the agreement, or in case it should appear to the engineer that the work did not progress with sufficient speed, the other party should have power to annul th'e contract, and the unpaid portion of the road be forfeited by the sub-contractor, 'and become the property of the other party. It was held, that the award or decision of the engineer declaring the work forfeited was conclusive and binding on the sub-contractor. Moreover, the action of the plaintiff was in affirmance of the contract, and he cannot impeach the stipulations in it by which he obtained the contract.</p> <p>2. The term value as used in the contract is to be distinguished from the term price as applied to the quantity of any of the. different classes of work specified in the contract; and the engineer in making the monthly estimates, had the right to deduct from the quantity of work done, what he considered would equalize the part taken out as to quality and value with the whole work, and was not bound to allow the plaintiff for all work done, the price specified in the contract for that kind of work. '</p> <p>3. If the company had withheld the funds due to the sub-contractor, it would be unfair to take advantage of the forfeiture declared for want of prosecution of the work.</p> <p>4. The retention of the 20 per cent, in case of forfeiture was intended as the measure of reparation for the failure of the plaintiff to perform his contract, and was not intended as a mere penalty.</p> <p>5. The payment, after the forfeiture, by one of the original contractors of the hands who had been employed by the sub-contractor, and furnishing money to carry on the work, was not a waiver of the forfeiture, and especially if he was then ignorant that the work had been forfeited.</p>

<p>A deed executed before the act of 11th April 1848, bjr a married woman, conveying real estate to which she was entitled in fee, without her husband joining in its execution, is void. The act of 24th February 1770 requires both to join in conveyances of real estate, and its directions are imperative. Parol evidence that the wife executed the deed with the assent and by the direction of her husband, is not admissible. The only legitimate evidence of consent is the execution of the deed in the manner and form directed by the act of 1770.</p>

<p>1. A conveyance of real estate by a father to his son, intended to delay and hinder creditors, is fraudulent as to creditors, whether the consideration amount to the value of the land sold or not.</p> <p>2. If the conveyance to the son be fraudulent as to creditors, the son cannot set up an outstanding title to the land in another, against the purchaser at sheriff's sale, of the title of the father, who was in possession at the time of the sheriff's sale.</p> <p>3. Evidence of the value of the land in dispute, without specification as to time, or of its value at the time of the trial, the conveyance in question having been made years before, is not admissible.</p> <p>4. When a conveyance is impeached on the ground of fraud, considerable latitude is allowable in the admission of evidence; the question is whether the evidence can throw light on the transaction, or whether it is irrelevant.</p> <p>5. It is incumbent.on a party who attempts to deprive the adverse party of a claim apparently due him, and evidenced by a proper voucher, to support his allegation by proof, however slight it may be; if none such be given, the court are not to reject the evidence of the claim, or to submit the question of its invalidity to the jury.</p> <p>6. A son working after he is of age for his father does not thereby acquire a right of action against his father, unless there has been a previous contract or agreement to pay on the part of the father.</p> <p>7. An assignment that the court erred in their charge to the jury generally, (without any specification,) is not a proper assignment.</p>

<p>1. Where an administrator purchased real estate with funds a moiety of which belonged to himself, and the other moiety to others, in an action of ejectment by the cestui que trust against a purchaser of the land from the administrator, without notice of the trust, the purchaser is entitled to be reimbursed the one-half of the purchase-money paid by him before notice of the trust, unless he has been fufiy compensated to the extent of that moiety out of the rents or profits. It is not, however, necessary that the amount be tendered before suit brought.</p> <p>2. The administrator, who was a co-defendant in the ejectment, is entitled to be reimbursed for expenses incurred in the creation of the trust, and advances made for the benefit of the trust.</p> <p>3. The administration account settled after the suit brought, is evidence in favor of the defendants, to show the amount of money advanced by the administrator in the purchase of the land in question; but it is not conclusive.</p>

<p>Error, to the Common Pleas of Yorlc county.</p> <p>This was a case stated, in which Michael Weidman was plaintiff, and Jacob Maish, Michael Shriver, and John Lefever were defendants, in the Court of Common Pleas of York county, No. 14, of August term 1848.</p> <p>Case stated as if found by special verdict, with right to either party to sue out a writ of error.</p> <p>On the second day of September 1827, John Meyer, of Spring Garden township, York county, Pennsylvania, made his last will and testament in writing of that date, which afterwards and after his death was duly proved and recorded in the register’s office of said county, on the 15th day of June 1829, the original of which will is hereto annexed and made part of this case.</p> <p>Said John Meyer, at the time of making said will, and at the time of his death, was seized of the plantation mentioned therein, being an improved tract of land, situate in Spring Garden township aforesaid, containing one hundred and seventy-nine acres, one hundred and fifty-six perches and allowance, which he had accepted on the 18th day of February 1806, as No. 2 of the real estate of his father, at the valuation of $5564, of which he retained $1096 as his own share, and paid $4468 to his brothers and sisters, and for the costs of the proceeding. His share in No.</p> <p>1 (being the residue of the real estate of his father) was $1112.80, and his share of the personal estate was $114.66. His wife inherited from her father’s estate between $900 and $1000, which he received. The industry of himself and wife, with the proceeds of the farm, were the means by which he was enabled to pay the residue of the charge upon his land, and acquire something beyond it. He had no other real estate.</p> <p>The testator was married early in life to Elizabeth, a daughter of Christian Herman, of Lancaster county, Pennsylvania, who was his only wife, and survived him. He never had any children. He was between 65 and 70 years of age when he died. He had one brother, Jacob Meyer, of Spring Garden township aforesaid, and three sisters, Barbara, married to Samuel Grimes, of Yenango county, Pennsylvania, Christiana, married to John Wolfort, of Franklin county, and Mary, married to John Weidman, of Lancaster county aforesaid, all of whom had issue at the date of his will, and survived him, and were his only heirs at law, and were in good circumstances, but not on terms of intimacy with him. After the death of the testator, his widow made her selection of the eighty-five acres and allowance of land devised to her, including the buildings, which were surveyed off for her, and of which she took possession. The residue of the tract, including the principal part of the woodland and the most valuable, (the buildings being of little account,) was taken into possession by the brothers and' sisters of the testator. The sisters sold their interest therein to their brother, and his share still remains in it undivided.</p> <p>The testator bequeathed the whole of his personal estate, which it is supposed amounted to between $1000' and $4000, to Ms widow, though, no inventory being filed, the amount is uncertain.</p> <p>The said Elizabeth, the widow, leased her land to Jacob Maish, one of the defendants, on the shares, and he still continues in possession. She died in Lancaster county, Pennsylvania, about the lsi day of August 1847, having first made her last will and testament,' which was duly proved and recorded in said last-named county. She nominated Michael Shriver and John Lefeveiy who are the executors of the will of her husband, to be the executors of- her will, and directed them to sell said real estate and divide the proceeds among her relations, who reside principally in Lancaster county. A copy of her will is annexed to and made part of this case. The said executors are also defendants in this suit.</p> <p>At the time of her death, the widow of John Meyer owned a house and piece of ground in York county, worth about $-, and the inventory of her personal estate amounts to $5828.72.</p> <p>The brothers and sisters of the testator, as well as the husbands of the sisters, are dead, and have all left issue. The plaintiff, Michael Weidman, of Spring Garden township aforesaid, is a son of Mary, the wife of John Weidman, the said Mary having left eleven children, who are all living.</p> <p>If Elizabeth Meyer, the widow of John Meyer, took under his will an estate for life in the eighty-five acres and allowance of land devised to her, then, judgment to be entered in favor of plaintiff for the undivided one forty-fourth part of said eighty-five acres and allowance, with costs of suit.</p> <p>If said Elizabeth Meyer took a fee simple in said eighty-five acres and allowance, then judgment to he entered in favor of defendants for costs.</p> <p>The second day of September 1827 was Sunday, hut the said John Meyer did not die on Sunday.</p> <p>If any extrinsic fact stated above would not he evidence on a trial before a jury, it is not to be considered by the court in deciding this case stated, and the facts herein admitted are admitted only for the purposes of this case.</p> <p>The case was argued before the Hon. Ellis Lewis, holding a special court at York. The court entered judgment for the defendants, thus holding that the widow took an estate in fee simple.</p> <p>It was assigned for error, that the court erred in entering judgment for the defendants.</p> <p>Extracts from the Will of John Meyer. — As to such worldly estate wherewith it hath pleased God to bless me in this life, I give and dispose of the same in the following manner, to wit: Item it is my will and I order and direct that all my just debts and funeral expenses shall be first paid and satisfied. Item it is my will and I give devise and bequeath unto my beloved wife Elizabeth e.ighty-five acres and' allowance of land of my dwelling plantation whereon I now live situate in Spring-garden township in the county aforesaid she to have the choice of the same where-ever she thinks proper and further I do give and bequeath unto my said wife all my moveable property or personal estate of what kind or nature the same may be together with all the monies due me, by bond, note or book account to and for her only proper use and behoof whatever. ■ Item it is further my will that my brother and sisters divide the residue of my said plantation amongst themselves share and share alike. And lastly I nominate and appoint my beloved friends Michael Shriver and John Lefever of the township aforesaid to be the executors of this my last will and testament hereby revoking all other wills legacies and bequests by me heretofore made and declaring this and no other for my last will and testament. In witness whereof I hereunto set my hand and seal this second day of September one thousand eight hundred and twenty-seven — Signed, sealed, &c.</p> <p>(Signed) John Meter,, [seal.]</p>

This was an- action of ejectment, brought by John M. Davidson vs. William Johns, for an island in the Juniata river, containing about 16 acres. Davidson showed a patent for the island, dated March 12,1841.

<p>1. A person contracted with machinists for the construction of a steam-engine and fixtures for a grist-mill. A part of the machinery, viz. the boilers and balance-wheel, were delivered, and the boilers fixed in a building attached to the mill. The purchaser became embarrassed, and in an agreement in writing between him and the attorney of the manufacturers, it was stated that the boilers and the machinery attached or to be attached to them were the property of the manufacturers, and they by their attorney agreed to leave the same where they were for three months, in order to give time to the purchaser to make an arrangement with his creditors; and in the event of his inability to make such arrangement, then the manufacturers were to be left to their legal remedy for the materials already furnished, or to the removal of the same, at their option: Held, that the machinists had the right to remove the boilers and wheel as against one who had purchased them at sheriff's sale when sold as the personal property of the owner of the mill who had ordered them, without respect to whether they were attached to the real estate or not.</p> <p>2. The acts and declarations of the owner of the mill who contracted for the engine, made before execution issued against him, that he considered the boilers and wheel as the property of the manufacturers of them, were admissible on their part as evidence of ownership, possession, and the right to remove the same.</p>

<p>1. The certificate of a justice of the peace in relation to the acknowledgment of a mortgage by a feme covert is not conclusive, but parol evidence is admissible to show that the acknowledgment by the wife was not done of her free will and accord, but that undue means were used for obtaining it; and if the mortgagee has a knowledge of facts calculated to put him on inquiry as to the manner in which the acknowledgment was obtained, he must abide the consequences.</p> <p>2. If interrogatories are substantially answered in the course of the deposition, it is sufficient.</p> <p>3. The declarations of the wife objecting to making the acknowledgment, made immediately before and at the time of the acknowledgment, though during' a period of several hours, are admissible as part of the res gestee.</p>