Volume 16 — Sergeant & Rawle's Pennsylvania Reports

<p>APPEAL.</p> <p>In this case, which was an appeal from the Circuit Court of Lancaster county, Jenkins moved to quash the appeal, because it was not filed after the sitting of the court, on the first of the term to which the appeal was returnable. This is too late. 4 Yeates, 240. 1 Sinn. 76.</p>

IN ERROR. On a writ of error to the Court of Common Pleas of Dauphin county, it appeared that this was a case stated in that court in the nature of a special verdict, in which John Reesor, the defendant in error, was plaintiff below, and John Allen, the plaintiff in error, was defendant, to try which of the parties was entitled to a sum of money in court; arising frpm recent sales by the sheriff of the real estate of Christian Forney, situate in Dauphin county.

<p>A judgment obtained against the vendor of land, after the execution of an article of agreement, but before the execution of a deed, binds the legal estate of the vendor; and, on a sale under such judgment, the sheriff’s vendee stands precisely in the situation of the original vendor, and is entitled to the unpaid purchase money, payment of which he may enforce by ejectment against the terre-tenant</p> <p>If the assignee of a bond is induced to purchase it in consequence of representations made by the obligor, that he has no defence, and is willing to pay it, the obligor cannot set up against the assignee any equity, of which he might have availed himself against the obligee, even though such communications were not made directly to the assignee or to his agent, but merely communicated to another, in his presence and hearing.</p>

<p>IN ERROR.</p> <p>On a writ of error to the Court of Common Pleas of Lebanon county, it appeared that this was an action of debt on two bonds, given by Adam, Hawk and Michael Hawk to Robert Geddis, Samuel Casper, and John Wolfersberger, administrators of John Casper, deceased, dated the 3d of April, 1810; the first conditioned for the payment of four hundred and seventy pounds, one shilling, and four pence, on the 1st of April, 1814; the other for the payment of a like sum on the 1st of April, 1815. The defendants in error, Robert Geddis and Samuel Casper, who survived John Wolfersberger, were plaintiffs below, and Jonas Hawk, surviving executor of Michael Hawk, deceased, the plaintiff in error, was defendant below.</p> <p>The consideration of these bonds was the purchase money of a tract of land sold to Adam Hawk by John Casper, administrator, under a decree of the Orphans’ Court. The land had been appraised, and the guardian of Casper’s children having refused to take it at the appraisement, the court, on petition, granted an order of sale to the administrators. The sale made to Adam Hawk was returned and confirmed by the Orphans’ Court, on the 1st of April, 1810. No deed was given by the administrators until the 34th of March, 1817, when they executed a conveyance to Adam Hawk, with a receipt for the purchase money. Michael Hawk was the surety of Adam in these bonds.</p> <p>The defendant having, under the plea of payment with leave, &c. proved the proceedings in the Orphans’ Court, the consideration of the bonds, and that Michael was the surety of Adam Hawk, and given evidence that in the year 1819 written notice was given by the administrators of Casper to Peter Witman, who had purchased from Adam Haiok, not .to pay over any money until the purchase money due to them had been paid, as they intended to look to the land for it; in consequence of which Witman retained in his hands four thousand dollars, to meet their demand, offered to prove [that the three administrators of John Casper lived in the neighbourhood of Adam Hawk; that from the year 1810, to the year 1821, they saw and knew that he was squandering his estate; that they knew that Michael Hawk died in December, 1815, and were at his funeral; that they knew that Adam Hawk had sold the land he had purchased of them to a certain Peter Witman in the spring of 1S17, and that Witman had, on the 3d of April, 1817, paid Adam Hawk the hard money, to the amount of eight thousand dollars, and given bonds for the residue; that Robert Geddis had all these bonds and papers in his hands as acting administrator; that John Wolfersberger, his co-administrator, had frequently applied to the said Robert Geddis to call on Adam Hawk, and make him pay, as he was going to ruin, but that he obstinately refused to do so; that shortly after the death of Michael Hawk, his executors, by advertisement in the public newspapers, called on his creditors to bring forward their claims against his estate; yet the administrators of Casper never made any demand or presented any claim against the said estate until this suit was brought, and Adam Hawk bad become insolvent.]</p> <p>The facts thus offered in evidence, the defendant proposed to accompany by proof, that after the death of Michael Hawk, to wit, in the year 1S19, the plaintiffs agreed in writing to look to the said lands sold, as stated above, to Peter Witman, and then in possession of his son John Witman, for payment of the lands now in suit, and relinquished their claim upon the estate of Michael Hawk, of all which Robert Geddis gave notice to Peter and John Wit-man, who retained in their hands money sufficient to discharge the said bonds.</p> <p>The counsel for the plaintiffs objected to the admission in evidence of that part of the offer which is embraced by brackets; and the court having sustained the objection, sealed a bill of exceptions.</p> <p>The defendant then offered to prove the time of the death of the said Michael Hawk; to which the plaintiffs’ counsel objected, and the court rejected the evidence. An exception was again taken to their opinion.</p> <p>The defendant then offered to give in evidence, that after the death of Michael Hawk, his executors, in the public newspapers which circulated in the neighbourhood of the plaintiffs, who lived in a very populous community, requested all persons having demands on the estate of Michael Hawk, deceased, to present them for payment; yet the plaintiffs never presented their claims nor made any demand of payment of these bonds until the institution of this suit, and after Adam Hawk, the principal debtor, had been insolvent. To the admission of this evidence, the counsel of the plaintiffs objected, and the court having rejected it, the defendant’s counsel tendered another bill of exceptions, which was sealed by the court.</p> <p>The defendant next proposed to give in evidence to the jury the record of an ejectment brought to November Term, 1S21, in the Court of Common Pleas of Lebanon County, by the administrators of John Casper, deceased, against John Witman, who was then in possession of the premises sold to his father, Peter Wit-man, by Adam Hawk. This ejectment was pending when the record was offered in evidence. The evidence was rejected by the court, on an objection being made to it by the plaintiffs’ counsel, and the defendant’s counsel again excepted to their opinion.</p> <p>An offer was then made by the defendant to prove that with the consent of the administrators of John Casper, deceased, the bonds on which this suit is brought were placed in the hands of Robert Geddis; that both before and after the death of Michael Hawk, when he knew that Adam Hawk’s circumstances were daily becoming more desperate, John Wolfersberger, one of the administrators of Casper, repeatedly called on the said Robert Geddis, and told him it was necessary and proper to proceed against Adam, Hawk, to enforce payment of the bonds ; but that Geddis always refused to do so until Adam Hawk became insolvent in the year 1820. The plaintiffs’ counsel objected to the evidence, and the court sustained the objection; upon which the defendant again excepted to their opinion.</p> <p>After the evidence was closed, the court were requested, in charging the jury, to give their opinion on the following points, and to file the same, together with their reasons therefor, of record in the cause.</p> <p>1. Whether the land sold under the proceedings of the Orphans’ Court, read in evidence, is bound for the payment of the purchase money.</p> <p>Answer. Granted. For by the act of assembly the land was bound for the payment of the purchase money by Adam Hawk, who sold to Peter Witman, who had notice from his deed of the nature of his title; and also had notice from the administrators of Casper not to pay any more money to Adam Hawk on account of the purchase from him, as the administrators would look to the land for payment of the bonds given by Hawk; in consequence of which Witman retained, and still retains in his hands, four thousand dollars of the money due from him to Adam Hawk.</p> <p>2. Whether the proceedings in the Orphans’ Court read in evidence are valid, and make a perfect title to the purchaser.</p> <p>Answer. The proceedings of the Orphans’ Court make a valid title, subject to the payment of the purchase money.</p> <p>3. Whether gross neglect on the part of the plaintiffs will not discharge the surety.</p> <p>Answer. Granted; — But gross negligence is a matter of fact for the consideration of the jury, and there is no evidence in this case of such gross negligence as will amount to a discharge of the surety.</p> <p>4. When the obligee in a bond in any material degree lessens the responsibility of the principal, without consulting the surety, will not this discharge the surety?</p> <p>Answer. Granted. It will.</p> <p>5. Whether the decision of the Supreme Court settles any thing now relied on for defence in this suit.</p> <p>Answer. It does not.</p> <p>6. Whether, where there are two sureties for the same debt, and one-is compelled to pay, cannot that one who pays call on and compel contribution from the other surety?</p> <p>Answer. He can.</p> <p>7. A surety who pays the debt for his principal, is entitled to be put in the place of the creditor, and to all the means which the creditor possessed, to enforce payment against the principal debt- or. Is this the law, or not? and your reasons for it.</p> <p>Answer. Granted. It is the law.</p> <p>S. From the proceedings of the Orphans’ Court, and all the other evidence given in the cause, it appears that the legal title, or fee in the lands sold, was not vested in Adam Hawk, on the 3d of April, 1810, when these bonds were executed, but only the equitable title, if any. Then was it not a fraud upon the executors of the surety, for the administrators of Casper to convey the legal estate in the premises to Adam Hawk, without consulting them, by the deed dated the 24th of March, 1817. And did they not thereby discharge the estate of the surety?</p> <p>Answer. On the 3d of April, 1810, Adam Hawk held an equitable title, and it was not a fraud on the executors of Michael Hawk, when the administrators executed the deed of the 24th of March, 1817. Nor did they discharge the estate of the surety.</p> <p>The jury found a verdict for the plaintiff for three thousand three hundred and seventy-eight dollars and one cent.</p> <p>Upon the return of the record to this court, error was assigned,</p> <p>1. In the opinion of the court below, upon the matters contained in the several bills of exceptions taken at the trial.</p> <p>2. In their answers to the questions submitted by the defendant’s counsel for their opinion, and in not giving their reasons at length, as requested by the defendant’s counsel, under the authority of the act of assembly in such case made and provided.</p> <p>3. In the verdict and judgment, because they were for a greater sum than the defendant below was sued for.</p>

<p>His Honour Judge Huston, before whom this cause was tried at a Circuit Court held for Lancaster county in April, 1827, reported it to be an ejectment brought by Samuel Tate and Jane Mary, his wife, against John Stooltzfoos and others, to recover forty-two acres of land in Leacock township, to which the plaintiffs showed title, in right of Jane Mary the wife.</p> <p>The defendants claimed under Janies Hamilton, and as a part of their title exhibited a release executed by James Cochran, and Jane Mary, his wife, (since married to Samuel Tate the plaintiff) to the said James Hamilton for the land in controversy, annexed to which was an acknowledgment, of which the following is a copy.</p> <p>“ Before me, the subscriber, one of the associate judges of the Court of Common Pleas in and for the county of Lancaster, came James Cochran and Jane Mary, his wife, and acknowledged the within instrument of writing to be their act and deed, and desired that the same might be recorded as such. Witness my hand, &c. 28th May 1796'.”</p> <p>The verdict being for the defendants, the plaintiffs moved for a new trial, which the judge refused, whereupon the plaintiffs appealed for the following reasons.</p> <p>1st. The court improperly admitted in evidence a release executed by James Cochran and Jane Mary, his wife, (the latter one of the plaintiffs in this suit, and the land being claimed in her right) to James Hamilton his heirs and assigns, which release was not duly acknowledged according to the provisions of the several acts of assembly in such case made and provided.</p> <p>2. The court gave it in charge to the jury that the acknowledgment of the release before mentioned, was sufficient under the provisions of the act of the 3d oí April, 1S26, to bar the recovery in this action.</p> <p>The act referred to declares, “ That no grant, bargain, sale, feoffment, deed of conveyance, lease, release, or other assurance of any lands, tenements and hereditaments whatsoever, heretofore bona fide made and executed by husband and wife, and acknowledged by them before some judge, justice of the peace, or other officer authorized by law within this state, or an officer in one of the United States, to take such acknowledgment as aforesaid before the 1st day of September next, shall be deemed, held, or adjudged invalid, or defective, or insufficient in law. or avoided or prejudiced, by reason of any informality or omission in setting forth the particulars of the acknowledgment made before such officer as aforesaid in the certificate thereof; but all and every such grant, bargain, sale, feoffment, and deed of conveyance, lease, release or other assurance, so made, executed, and acknowledgéd as aforesaid, shall be as good, valid, and effectual in law, for transferring passing and conveying the estate, right, title and interest of such husband and wife, of, in, and to the lands, tenements, and hereditaments mentioned in the same, as if all the requisites and particulars of such acknowledgment mentioned in the act to which this is supplementary, were particularly set forth in the certificate thereof, or appeared upon the face of the same.”</p> <p>Judge Huston having ruled the point without argument and without prejudice, for the purpose of bringing it before the court in bank, sat during the argument.</p>

<p>On the trial of this case before Judge Duncan, at a Circuit Court in Berks on the 26th of April, 1827, on the pleas of non assump~ sit and plene administravit and debts of a higher nature, replication and issue, the jury found a verdict in favour of the plaintiff for seven thousand nine hundred and nineteen dollars, and thirty-five cents damages, and six cents costs.</p> <p>A motion in arrest of judgment having been overruled, the defendant appealed to this court.</p>

<p>This suit was originally brought in the Court of Common Pleas of Bucks County, by Lewis Reese against John Addams, Esq., the prothonotary of the said county, for money had and received by the defendant for the use of the plaintiff. It was removed by certiorari to the Circuit Court, where it was tried on the 25th of Jlpril, 1827, before Judge Duncan. Á verdict was given under the direction of the judge, in favour of the plaintiff, for two thousand dollars. A motion for a new trial having been overruled, an appeal was taken to this court.</p> <p>On the 12th of December, 1810, James Lewis made his last will and testament, and among other things devised in fee simple to his sons James and Curtis, a tract of land in the county of Berks, charged with the payment of a legacy of four i undred pounds each, to his two daughters, Eleanor intermarried with William Morris, and Abigail intermarried with Henry Loby. The 30th of January, 1819, James Lewis conveyed his moiety of the property to his brother Curtis, and under an act of assembly, passed the 8th day of March, 1S12, Curtis Lewis filed his petition to the judges of the Court of Common Pleas of Berks county, representing that the president, managers and company of the Schuylkill Navigation Company had caused dams to be erected in the river Schuylkill, by reason of which, considerable injury had been done to him, in consequence of the water having overflowed part of his land, &c., by which his improvements on the said land are injured, and in a great measure rendered useless, and part of his land permanently covered with water.</p> <p>On this petition an inquest was awarded, and on the 31st of March, 1820, the inquest found “ That they had gone to the premises in the river mentioned, and that they found that by reason of certain dams and other obstructions, erected in the river Schuylkill, by the president, managers and company, Curtis Lewis had sustained damages to the amount of two thousand five hundred dollars.”</p> <p>On the 15th of April, 1820, Curtis Lewis, under certain trusts and conditions, conveyed all his interest in these damages, to the plaintiff, Lewis Reese.</p> <p>It appeared that there was a compromise, and the Schuylkill Navigation Company paid into the hands of John Addams, prothonotary of Berks county, the defendant, who was a mere stakeholder, the sum of two thousand dollars, which was admitted to be for the same land which was devised by James Lewis the elder, to his two sons, James and Curtis.</p>

<p>IN ERROR.</p> <p>Writ of error to the District Court of Dauphin county.</p> <p>This case, so far as it could he understood from the record, was an ejectment brought in the court below, by George, Elizabeth, and Peter Shutz against Peter Heffelfmger, to recover three acres of land in Hanover township which the plaintiffs claimed uiider a warrant for one hundred acres in favour of George Shutz, dated the 2d of March 1752, and a survey thereon dated the 12th of April, 1775, of one hundred and ninety-four acres for Leonard Shutz in right of the said George Shutz. The question on the trial turned principally on an alleged possession by the plaintiffs and those under whom they claimed, of twenty-one years; and in making out their case, they offered in evidence a deed for the land in dispute from John Shellenberger to George File, dated March 7th, 1775, accompanied fay the following evidence, to wit, a certificate from the recorder’s office in Lancaster, stating that there is no deed on record there from Leonard Shutz to John Shellenberger, parol proof by the recorder of Dauphin county, that after diligent search no deed can be found on record in his office from Leonard Shutz to John Shellenberger; parol proof that diligent search has been made by the plaintiffs among their father’s papers, and no such deed is to be found, and that the plaintiffs’ father died more than thirty years ago, with parol proof that the plaintiffs or those under whom they claim, had uninterrupted possession of the premises in controversy for more than thirty years before the institution of this suit, and that this possession was of the same premises as those mentioned in the deed offered in evidence.</p> <p>The defendant’s counsel objected to the deed being read in evidence for any purpose. The court rejected it as evidence of title, but permitted it to be read to show the boundaries of the plaintiffs’ claim and the extent of the occupation of the premises. The defendant’s counsel excepted to the opinion, and the court sealed a bill of exceptions.</p> <p>The next bill of exceptions was founded upon the court permitting Barbara Shutz to be sworn as a witness for the plaintiffs, after having been objected to by the defendant’s counsel. There was nothing in the record to show on what ground the objection was made.</p> <p>In the course of the trial a deed from Martin Miller and wife, to Francis Fultz, bearing date the 19th of March, 1794, was offered in evidence on the part of the defendant, and objected to by the plaintiff’s counsel, because it contained interlineations and erasures which were unexplained. The court sustained the objection, and the defendant’s counsel excepted to their opinion. The reporter-regrets that no copy of this deed having corae into his hands, he is unable to state more fully the evidence offered and rejected. This defect is, however, partially supplied by the judge who delivered the opinion of this court.</p> <p>Several other bills of exceptions to evidence were returned with the record of this case; in which, and in the opinion of the court, twelve errors were assigned hy the counsel for the plaintiffs in error. It is deemed, however, unnecessary to specify them.</p> <p>In the second bill of exceptions error was. assigned in these words:</p> <p>“ The court permitted Barbara Shuiz, widow and relict of George Shutz, deceased, under whom the plaintiffs claimed as heirs at law, mother of plaintiffs, and endowable of the lands if recovered, to be sworn as a witness in chief in the cause.’7</p>

<p>IN ERROR.</p> <p>This cause was tried at a Circuit Court held in Berks county in May last, before His Honour Judge Duncan. The jury returned a verdict in favour of the plaintiff for five hundred and three dollars and thirty-four cents, a motion was made by the defendants for a new trial, which being overruled, they entered an appeal*</p> <p>The action was brought by the Farmers’ Bank of Reading against John K. Boyer, Henry Bowman, Joseph Siting, and John Adams, on a bond dated the 3d of December, 1823, of which the following was the condition:</p> <p>“Whereas the above hounden John If. Boyer, hath been arrested and is now in custody, at the suit of the said Farmers’ BanJe, for the sum of three hundred and twenty dollars and sixty-five cents, besides costs, and the said John K. Boyer having made application to William Witman, jr., one of the judges of the Court of Common Pleas, to be released from such confinement on his entering into bond with sufficient security to comply with the provisions of the act of the general assembly of the commonwealth of Pennsylvania, passed the 29th of January, A. D. 1820, entitled a supplement to the act entitled, ‘ an act for the relief of insolvent debtors,’ and the said William Witman having approved of the above named Henry Bowman, and Joseph Siting, and John Adams, esq., as a security for the said John K.. Boyer.</p> <p>“Now the condition of the obligation is such, that if the said John If. Boyer shall appear before the Honourable the judges of the Court of Common Pleas for the county of Berks at the next term of the said court, to be holden on the first Monday of January A. D. 1824, and then and there remain and abide the final order of the said court to be made during the said term, and then and there surrender himself to prison, in case on his appearance before the said court he shall not comply with all things required by law to procure his discharge from confinement, then the above obligation to be void, otherwise to be and remain in full force and virtue.”</p> <p>The defendants pleaded conditions performed, hut it was agreed that if the Supreme Court should be of opinion that upon any plea which the defendants could legally enter, they could avail themselves of the fact that the act of the 29th of January, 1820, had been repealed when the bond was executed, then the judgment to be reversed and a new trial had upon new pleading.</p>

<p>Where, ia an action of dower, the defendant pleaded defectively, an agreement before marriage in lieu of dower, and a recovery thereon by the plaintiff, and the plaintiff replied, denying the facts set forth in the plea, and concluding to the country, and the defendant demurred to the replication, and the court below entered judgment for the plaintiff on the demurrer: Held, that in this judgment there was no ei’ror.</p> <p>In an action of dower, the record of the suit, founded upon an alleged agreement entered into before marriage, upon which a recovery was had, is not evidence for the defendant, without producing the agreement itself, or proving its loss and contents.</p> <p>But it seems, that, if the loss of the original agreement were proved, the recital of it in the record, by the plaintiff, might, as far as it went, be evidence against her of the contents of the agreement.</p> <p>If, in an action of dower, the jury find “for the plaintiff, her dower as stated in the declaration,” and the court thereupon enter judgment that a writ of seisin and inquiry of damages issue, the plaintiff may release all but the judgment to recover seisin, and that may stand.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Dauphin county, in which .the case was a scire facias filed upon a claim under the mechanics’ lien law, by John and Daniel Elliott, the defendants . in error, against the plaintiffs in error, John Jt. Hills, undertaker, and John Buffington, owner of a certain building.</p> <p>The cause was argued in this court by Harris and Douglas, for the plaintiffs in error, and by Roberts and Fisher, contra; after which the opinion of the court, in which the whole case is sufficiently stated, was delivered by</p>

<p>IN ERROR.</p> <p>Writ of error to Dauphin county, in an ejectment for one hundred and sixty-three acres of land, brought by Jane Kean, who survived her husband, John Kean, the said Jane being one of the daughters and legal representatives of John Hamilton, deceased, who died intestate, against Jacob Ridgioay and Nicholas Bressler.</p> <p>The jury empannelled in the court below for the trial of the cause, returned a special verdict, of which the following is the substance:—</p> <p>John Hamilton died intestate, prior to the passage of the intestate act of 1794, (at which period, the oldest son of an intestate took two shares of his estate,) leaving a widow and six children; namely, Jane, intermarried with John Kean, Martha, intermarried with James JLlricks, John, Hugh, Margaret, and Catharine. On the 7th of October, 1801, four persons appointed by the Orphans’ Court, made a report that they had valued the several parcels of the real estate of the deceased, situate in Dauphin county, and the court, therefore, decreed two several parts thereof to John and Hugh, two of the children of the intestate. The guardians of the other children relinquished the right to take the residue of the real estate in Dauphin county, at the appraisement, to John Kean and Jane, his wife, who was the eldest daughter of the intestate.</p> <p>On the 27th of October, 1801, John Kean petitioned the Orphans’ Court, that he might be permitted “ to take the residue of the real estate not taken by the other heirs, situate in Dauphin county, in right of his wife, at the valuation.” The court decreed “That the said John Kean, in right of his wife, do, on paying or securing to be paid, the several and respective shares of the widow and other children of the said deceased, of and in the valuation or appraisement of the plantation, including, &.C., to hold the same to him the said John Kean and Jane, his wife, and the heirs of the said Jane as fully and truly as the said John Hamilton had and held the same in his lifetime.” John Kean entered into a recognizance with three sureties approved by the court, conditioned for the payment of their respective shares of the valuation money to the widow and children of the intestate.</p> <p>To May term, 1812, an action of debt was instituted on this recognizance in the name of the President of the Orphans’ Court of Dauphin county, at the instance of Moses M'Lean and his wife, in which judgment was tendered against the defendants on the 7th of September, 1812. A fieri facias issued returnable to November term, 1S12, and was levied on the land in dispute, which was condemned. A venditioni exponas issued to February term, 1S13, and the sheriff having returned that the land remained unsold, an alias venditioni exponas issued to May term, 1813, on which the premises were sold to George Wienman, for nine thousand six hundred and forty-three dollars and thirty-one cents. On the 17th of May, 1813, the sheriff acknowledged a deed for the premises to the purchaser.</p> <p>George Wienman and wife, by deed dated October the 9th, 1813, conveyed the premises to John Newbold, to whom John Hamilton, Hugh Hamilton, Moses M'Lean, and Catherine Hamilton, executed releases. Newbold and wife, by deed dated the 21st of January, 1818, conveyed to Henry Shriver, who with his wife, by deed bearing date the 9th of February, 1818, conveyed to Jacob Ridgway, one of the defendants. James Alricks and Martha his wife released their interest in the premises to John Kean, on the 22d of November, 1806, and on the 14th of January, IS06, John Hamilton, Hugh Hamilton, and Robert Harris, guardians of Margaret Hamilton, and Catherine Hamilton, released their interest to John Kean, in one hundred and twenty acres and one hundred and twenty-nine perches, part of the premises, and on the same day they released to George Fisher, esq., one hundred and twenty acres and one hundred and twenty-nine perches, part of the lands of the intestate.</p> <p>At May term, 1813, a feigned issue was joined, in which John Hamilton, Hugh Hamilton, James Alricks, and Martha, his wife, Moses M'Lean, and Margaret, his wife, and Catherine Hamilton, were plaintiffs, and John Kelker,esq., sheriff of Dauphin county, defendant, with notice, &c. The object of this issue was to ascertain to how much, if any of the money in the sheriff’s hands, arising from the sale of the real estate of John Kean, under the venditioni exponas, above referred to, the plaintiffs were entitled. On the 7th of December, 1813, the jury found a verdict for the plaintiffs; on which auditors were appointed, who made a report, exhibiting a general statement of the respective claims of the plaintiffs in the issue, to the money in the hands of the sheriff, and an apportionment of the sums due to eaeh of the heirs of John Hamilton, deceased, from John Kean, was made of the property taken by him under the decree of the Orphans’ Court. The statement exhibited also, the payments made by John Kean, to the heirs of John Hamilton, who, on receiving the balance due to them respectively, were to release their interests in the property sold by the sheriff. These balances were received, and releases executed accordingly.</p> <p>John Kean on the 12th of February, 1810, mortgaged the premises for eight thousand dollars to the Philadelphia Bank, whose assignee received from the sheriff the sum of four thousand nine hundred and ninety dollars and sixty-seven cents, a portion of the proceeds of the sale.</p> <p>Besides the premises in dispute, John Hamilton left other real estate in Dauphin county, and in Cumberland and Mifflin counties, parcels of which were taken under at their appraised value, by the different heirs, under decree of the Orphan’s Court of the different counties.</p> <p>John Kean died in the month of December, 1818.</p> <p>Upon the facts set forth in this special verdict, the court below delivered an elaborate opinion, the substance of which, briefly stated, was, that the estate which descended to Jane Kean from her father, was not divested by the proceedings and decree of the Orphans’ Court, so far as related to those parts of it, which were taken by her husband at the valuation; and that the sale under the judgment on the recognizance, did not vest in the sheriff’s vendee her interest in the premises for which this ejectment was brought.</p> <p>That the decrees of the several Orphans’ Courts, the acceptance by some of the heirs of specific parcels of the property, giving security for the payment of the shares of the other heirs, and releases as to those parcels not taken by them, were equivalent to a judgment in partition, and a severance of the tenancy in common, and that consequently such parts, of the intestate’s estate as were thus taken were held by those who took them in severalty. That the interest of Jane in the parcels taken by the other children was divested; and their interest in those which she took through the medium of her husband, also divested. That each heir had a specific portion of the estate, those who did not take land, having taken money. That the interest of Jane originally diffused through the whole of the intestate’s estate, was by the proceedings in the Orphans’ Court, concentrated in those portions of it, which were taken by the husband in her right, in which her interest was enlarged by annexing .to and engrafting upon it, her interest in those portions which were taken by the other children: That her interest, equal to one-seventh part of all her father’s estate, thus falling exclusively upon the several parcels taken by her husband in right of his wife, the premises in dispute, were to bear their proportion, which, by an arithmetical calculation not necessary now to be gone through, appeared to be fifty-eight acres; for which the court gave judgment upon the verdict. ■</p> <p>To this opinion the counsel for the plaintiff excepted.</p>

in error. Writ of error to the Mayor’s Court of the city of Lancaster. From the record, this appeared to be an action on the case in assumpsit, in which an award of arbitrators was filed on the 24th of June, 1824, finding the sum of fifteen dollars with costs in favour of the plaintiff below, who was also plaintiff in error. On the 14th of July following, the defendant entered an appeal from the award.

<p>Wherever a -writ of fieri facias is levied upon goods, and there is a claim of property adverse to the defendant in the execution, of such a nature as would reasonably raise a doubt or apprehension as to the title, or create a pause in the mind of a constant man, the sheriff has a right to call on the plaintiff for a reasonable indemnity.</p>

<p>in error.</p> <p>Writ of error to the District Court of Lancaster county, in an action of debt on an award of arbitrators, brought by Daniel Buckley, the defendant in error, against Leonard Ellmaker, the plaintiff in error.</p> <p>Whilst pending in the court below, a motion was made by the defendant’s counsel, to transfer this cause, together with two others between the same parties, and brought to the same term, to the Court of Common Pleas of Lancaster county, on the ground, that the judge of the District Court had been the attorney of the plaintiff in two earlier suits, from which one of the three suits, the transfer of which was asked for, originated, and that the cause of action of both the earlier suits,, was the source from which the three subsequent suits arose. The first of the two earlier suits was brought to February Term, 1803, and was discontinued on the 6th of Jlpril, 1814. The last was brought to November Term, 1814, and the plaintiff was nonsuited on the 26th.of November, 1821. Both these suits were for an alleged nuisance in raising the defendant’s mill dam, so as to make the water flow back,upon the plaintiff’s land. The award upon which the present suit was brought, was founded upon a submission proposed by Buckley, on the 17th, and finally entered ‘into on the 23d'of November, 1820, ■ by which the controversy respecting the dam was submitted to three referees, who, on the 29th of December, 1820, made an award in favour of Buckley, the plaintiff.</p> <p>. The judge of the District Court being of opinion that the suit in which he had been concerned, being for an alleged nuisance, and those which he was asked to transfer being an alleged submission and award, in the trial of which he could have nothing to do with any question of nuisance, though very unwilling to try the causes, he considered it his duty to refuse an order to transfer them. This opinion of the judge was excepted to by the defendant’s counsel.</p> <p>The plaintiff, having on the trial in the court below, proceeded with his proof to establish the existence and loss of the award, and evidence to supply that loss by the examination of the referees, the defendant’s counsel offered to cross-examine the witnesses on the subject-matter of this suit, and in avoidance of the award, before he had opened his defence. This being opposed by the plaintiff’s counsel, the court was of opinion that the defendant was not entitled to cross-examine the plaintiff’s witnesses before he had opened his defence, to which the counsel of the defendant excepted.</p> <p>The defendant offered to prove, by the cross-examination of one of the referees, that on the second day of their view, and after they had broken up and dispersed, one or more of them accompanied the plaintiff home, walking along the creek, dam and races between the houses of the plaintiff and defendant; and that while on their way, and after having arrived at the house of the plaintiff, he and the arbitrators conversed together on the subject of the controversy, and he pointed out to them, when neither the defendant nor any one on his behalf was present, the injuries which he alleged he had sustained from the defendant’s dam. The. testimony being objected to. by the plaintiff, was rejected by the court, to whose opinion an exception was again taken.</p> <p>An offer was then made by the defendants to prove, that immediately before the meeting of the struck jury and viewers, in the suit brought by Buckley against Ellmaker, to December Term, 1814, Buckley, the plaintiff, with the view to deceive the said viewers, dug a new tail race from his forge, and dug it on a level or very nearly so, and lower than the creek, and dug it deeper at the upper end next the forge than at any other part; and that, after the submission to arbitrators, the race was kept by him in the same state until after the view by the arbitrators, with the intent and view of deceiving the said arbitrators. To this evidence, also, the plaintiff objected, and the judge having sustained the objection, a bill of exceptions to his opinion was tendered.</p> <p>The defendant then offered to prove “ by the referees on their cross examination, that at the meetings of the referees to examine the water and regulate it, the plaintiff held intercourse with and made Communications to the referees,"behind the back and without the knowledge of the defendant, on the subject matters of the award; that the referees adopted a mode of proceeding and a standard for fixing the height the water should swell and to which defendant’s dam should be reduced, which put the whole of their proceedings entirely in the power of and under the influence and control of the plaintiff; that the experiment consisted in a proposition that Buckley’s forge dam which lay above, was to be shut so as to cause the current of the creek to flow over the breast of his dam— that one of the referees was to be stationed at Ellmaker’s dam— and that the other two of the referees ■ were to take their station at the line between Buckley and Ellmaker, when the dam of Ell-maker was to be shut — that a post was to be placed at the line by the two referees who were to notify the one at dam when the water rose half an inch on the post, and that in that way they fixéd the standard of regulation, leaving the water in Buckley’s dam to be used at his pleasure and without any control over him — by which the current of the creek was put completely in his power, to control the influence of the ■ water on the standard adopted by the referees by increasing it at his will — that the referees adopted no mode to ascertain what the current of. the creek was. And by putting this experiment into effect the whole of it was a fallacy ruinous to the defendant, and advantageous to the plaintiff, by leaving the control of the whole of Buckley’s dam in his power.”</p> <p>The evidence thus offered was “ rejected so far as regards the referees, but admitted, provided it could be proved by other testimony; except so much as was matter of argument arid inference, and not matter of fact.”</p> <p>His Honour certified that the above was the original offer of the evidence, and the ground of rejecting it, so far as it was rejected, so noted at the time of the trial, in his own handwriting; that the bill of exceptions afterwards tendered, did not exhibit the circumstances correctly, as to the partial rejection of the evidence; and therefore he signed the original paper in lieu of the bill.</p> <p>The defendant further offered to prove that he had a complete right to the water now in dispute, before and at the time of the proposition made by .the plaintiff, for this reference — that this mill-dam was erected in 1776, when John Clemson was owner of the lands now claimed by the plaintiff, and that the dam was then a little higher than it is now, owing to its settling since — that said dam swelled the water back on the lands of the said John Clemson rather higher than it was ever swelled on Daniel Buckley— that the said John Clemson knew of and agreed to the erection of the said dam by the defendant, and its swelling in the bed of the creek on his land, arid was agreed to and acquiesced in the same, and allowed thereof, .and furnished his mulatto man and horse and cart to assist in the erection of the said dam — that the said dam was in full use and operation from* its erection till the death of the said John Cleinson, in 1794, with his consent and approbation; he living during the whole time within three quarters of a mile of the said dam — That after the lands of the said Clemson came to be Buckley’s, on said Clemson’s death, he acquiesced in the swelling of the defendant’s dam in the said creek as it had done in Clemson’s lifetime, until the beginning of the year 1803, when the said Buckley brought an action on the case against Ellmaker, which he discontinued on the 6th of April, 1S14, (prout the record;) that he brought another action on the case to November Term, 1S14, of the Court of Common Pleas, of Lancaster county, which he continued, and put to issue, and took a rule for a view in the same; that at the time the viewers were viewing, or after or about the time of the viewers completing the view, he the said Daniel Buckley at the time of the view, and shortly before he made propositions of accommodation according to the testimony of John Passmore, used the following threats to the defendant, a man then of eighty years: viz.. ‘ If Leonard Ellmaker will not give up to me in the matter now in dispute between us, I will keep it in law as long as I live, and will put in my will that my sons shall keep it in law as long as they live,1' — that at the same time he applied many opprobrious epithets to Jacob Swartzwalter; called him a methodist, and said as follows, viz. if a religious man wears a plain coat, I have not the least doubt but he is a villain — that the alleged submission ivas coaxed and obtained by the said threats — that the referees in this cause, with a full knowledge of all the matters aforesaid, made a plain and palpable mistake in the matters of law and fact — rejected—except as to the recoi’ds of the suits and as to declaration made to the defendant, or any person acting for him at the time.”</p> <p>To this paper the judge appended the following statement:—</p> <p>“ This is the original offer of the matter of Bill-No. 4: as marked by me at the trial, with the written rejection thereof as annexed thereto, showing the grounds and reason of rejecting the same, the court did not reject any evidence offered as to direct plain or palpable mistake of either law or fact, nor was any such evidence offered other than as a deduction or inference from the account of the disputes prior to the time of entering into the arbitration, and which the arbitration was intended to settle; and the offer called on the court to re-examine the whole subject of the original dispute which was refused: I have, therefore, signed the original offer in lieu of ' the bill afterwards tendered, as giving a more correct view of what actually occurred.” . .</p> <p>The lines in Italics in these two papers, were omitted in the bills of exception presented to the judge for signature.</p> <p>• The written rejection above referred to by His Honour, was in these words:— .</p> <p>(i You shall not examine into or unravel the merits of the award made'by judges of the parties’ own choosing, nor what mode of examination they adopted, merely for the purpose of hunting for some supposed mistake: you shall not examine into the whole evidence before the arbitrators for the purpose of re-examining the case, or the correctness of the judgment of the arbitrators; for though it may have been unreasonable or unsatisfactory to the parties, it cannot be avoided for that reason: you may show there was a mistake, that a fact was misrepresented which influenced the arbitrators — and you may examine to that, and you may show that evidence was rejected, which ought to have been received; and in that case, from necessity, you must inquire into its materiality, and so far inquire into the1 nature of the controversy as may be sufficient'to show this materiality, but you shall not re-examine their judgment and try the case over again: it is not in nature of a new trial or appeal, the award is-conclusive, unless it can be impeached for fraud, mistake, &c.; but you shall not fish out a mistake by re-examining the whole case to ascertain whether the court might not Have drawn a different conclusion: this Would put an end to all awards: a court of equity will not go into the merits, nor re-judge the judgment of arbitrators : if a mistake is shown I presume the arbitrator may be asked if he acted under such false representation of the fact, or mistook one thing for the other: you cannot correct the error of arbitrators in their judgment on existing facts, but may show that the fact was concealed or made to appear different from what it really was.”</p> <p>After one of the referees had stated in his testimony the experiment made by them as to the swelling of the water, the defendant proposed to ask h'im the following, questions: — “In making the experiment to ascertain at what height of Ellmaker’s dam the water would be swelled back to the 'line between Ellmalcer and Buckley, what assurance or evidence had you, that no more than the usual quantity of water was passing down the creek from Buckley’s forge?” The plaintiff’s counsel objected to the question being put, and the judge having sustained the objection, his opinion was again excepted to by the counsel for the defendant. ■</p> <p>In this court, error was assigned in the several opinions of the judge below appearing on the record. These errors having been argued by Ellmaker and Hopkins, for the plaintiff in error, and by Jenkins and T. Sergeant, for the defendant in error—</p>

<p>IN ERROR.</p> <p>On a writ of error to the District Court of York county, it appeared the defendants in error, Jldam Wolf and Magdalena Day, administrators of Frederick Day, deceased, brought this action of covenant against George Rudy, the defendant in error, on an assignment of a bond given by Jacob Lichtenberger to the said George Rudy, dated the 21st of November, 1SI4, conditioned for the payment of three hundred and fifty dollars.</p> <p>The assignment,- which bore date the 20th of May, 1816, was in these words:—</p> <p>“Know all men by these presents, that for a valuable consideration to me in hand, I do hereby assign all my right, title, interest, and claim of the within bond to Frederick Day, which bond I stand security to the said Day, for the payment of, as witness my hand and seal, &c.”</p> <p>The declaration contained an averment that the said George did covenant and agree with the said Frederick, that in case the said Jacob should neglect and fail to pay the said sum of money due on the said bond, that he the said George would pay the same. It also contained an averment of the non-payment of the money by Lichtenberger and of his insolvency.</p> <p>It appeared from the evidence given on the trial, that in the year 1817, Rudy told Day, that he would be security no longer, and that he must push Lichtenberger for the money; and the several years after, Day had declared that Rudy had given him notice to push Lichtenberger, or he w'ould no longer be bail, to which he, Day, replied, “ If you wish to have Lichtenberger pushed, come to my house — pay me the money, and I will give you the bond, and you may push him yourself. I will not push him.”</p> <p>On the 7th of Jipril, 1824, Day obtained judgment, upon the bond against Lichtenberger, who on the 16th oí August, 1825, was discharged under the insolvent laws: at what term he became insolvent did not appear. Pie had, prior to his discharge, both real and personal property,, but was considerably indebted. When he applied for the benefit of the insolvent laws, he returned no property.</p> <p>The court below having charged the jury that the plaintiffs were entitled to recover the principal and interest due upon the bond, a verdict was returned accordingly; and the defendant took a writ of error.</p>

<p>Where one witness swears directly to the execution or publication of a paper as a last will, proof by other witnesses of declarations by the testator that he had made a will, must, in order to establish the will, be in reference to that particular paper.,</p>

IN ERROR. On the return of the record of this case, accompanied by two bills of exceptions to evidence, from the Court of Common Pleas of Lancaster county, it appeared that it was an action brought by the plaintiffs in error, against the defendant in error, James White-hill, on a promissory note of which the latter was an indorser.

IN ERROR. Writ of error to the Common Pleas of Lebanon county. This case had on two former occasions been before the court; first, at May Term, 1820, when the judgment entered in favour of the defendant in the court below was reversed, (6 Serg. & Rawle, 121,) and again at May Term, 1824, when a second judgment in favour of the defendant was also reversed.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Lancaster county.</p> <p>George Christine and Andrew Gotwalt brought this action of covenant, in the court below, for the use of George Christine, against John M. Whitehill, and declared against him, as follows:—</p> <p>“John M. Whitehill, late of the county aforesaid, yeoman, was attached to answer George Christine and Andrew Gotwalt, who sue for the use of the said George Christine, of a plea that he keep wdth them his covenants, according to the force, form, and effect of a certain indenture between them made; whereupon the said George Christine and Andrew Gotwalt, by James Hopkins, their attorney, complain that on the 27th day of July, in the year of our Lord one thousand eight hundred and fourteen, at the county aforesaid, the said John M. Whitehill and Elizabeth his wife, by their certain indenture, bearing date the day and year aforesaid, which is now here shown to the court, amongst other things, in consideration of twelve hundred dollars lawful money of Pennsylvania, by the said George Christine and Andrew Gotwalt to the said John M. Whitehill and Elizabeth his wife, in hand paid, did grant, bargain, and sell, alien, enfeoff, release, and confirm to the said George Christine and Andrew Gotwalt, their heirs and assigns, a certain tract of land situate in Hellam township, in the county of York, by metes and bounds in the said indenture particularly described and set forth, containing ten acres neat measure, being part of the fifty-eight acres and one hundred perches, late the property of John Whitehill of Donegal township aforesaid, which was decreed by an Orphans’ Court of York county aforesaid, held the ISth day of September, 1812, unto John M. White-hill, (meaning the said John M. Whitehill, one of the sons of the said John Whitehill, deceased,) and which James Whitehill and others, the heirs of the said John Whitehill, deceased, did, by their deed of release, grant and confirm unto the said John M. Whitehill, (a party hereto,) and to his heirs and assigns for ever, to have and to hold the said ten acres of land, with the appurtenances, unto the said George Christine and Andrew Gotwalt, their heirs and assigns for ever, subject to the quit rent due thereon, or to become due to the proprietary, Mr. Penn and his heirs. And, further, the said John M. Whitehill and Elizabeth his wife, in and by the said indenture, amongst other things, did covenant, promise, grant, and agree to and with the said George Christine and Andrew Gotwalt, as follows, that is to say, “ And the said John M. Whitehill and Elizabeth his wife, for themselves, their heirs, executors, and administrators, did covenant, promise, grant, and agree, to and with the said George Christine and Andrew Gotwalt, their heirs and assigns, that they, the said John M. Whitehill and wife and their heirs, the said above described ten acres of lands, hereditaments and premises, hereby granted and released (or mentioned or intended so to be,) with the appurtenances, unto the said George Christine and Andrew Gotwalt, their heirs and assigns, against them the said John M. Whitehill, and Elizabeth his wife, and their heirs and assigns, and against all and every other person or persons whomsoever, lawfully claiming or to claim the said above described ten acres of land, Or any part thereof, shall and will warrant and for ever defend by these presents,” as by the said indenture fully and at large appears. And the said George and Andrew, afterwards, to wit, on the same day and year, entered into the possession of the said ten acres with the appurtenances, having paid and satisfied the said John M. Whitehill and Elizabeth his wife, the said twelve hundred dollars, as fully appears by his receipt duly executed therefor, by the said John M. Whitehill upon the said indenture. And the said John and Andrew aver, that on the day and at the time of executing the said indenture, to wit, on the Zlth of July, in the year of our Lord one thousand eight hundred and fourteen, or at any time before, neither he the said John M. Whitehill, nor his father, the said John Whitehill, deceased, had any lawful right or title to the said ten acres, or any part thereof, or property therein, or to or in the said fifty-eight acres, and one hundred perches of land, or any part thereof, represented, stated, and declared by the said John M. Whitehill in the said indenture to have been the property of his said father John M. Whitehill, deceased, at the time of his death, of which he the said John Whitehill, in and by the said indenture, represented, stated, and declared the said ten acres to be part, and that no lawful right or title ever was derived to the said John M. Whitehill from his said father, under or by virtue of the aforesaid decree of the said Orphans’ Court of York county, nor did the said James Whitehill and others, the heirs of the said John Whitehill, deceased, by their deed of release, grant and confirm unto the said John M. Whitehill, his heirs and assigns, the said ten acres with the appurtenances, or any part thereof^ as the said John M. Whitehill has represented, stated, and declared in the said indenture; but that, at the lime of the sealing and delivery of the said indenture, and at the time of the death of the said John White-hill, the lawful right and title to the said ten acres and the appurtenances, and to the said fifty-eight acres and one hundred perches of land were vested in John Penn and Richard Penn, late proprietaries of Pennsylvania, as part of their manor of Springettsbury in the said county of York. And so the said George and Andrew say, that the said John M. Whitehill fraudulently and deceitfully represented, stated, and declared, in the said indenture to the said George and Andrew, that the said ten acres of land, with its appurtenances, was the property of the said John White-hill, deceased, at the time of his death; that the said ten acres became vested in him and his heirs and assigns by the aforesaid decree, and the release of the said James Whitehill, and the other heirs of the said John Whitehill, deceased, when in truth and in fact no such right and title was vested in his said father, John Whitehill, or in the said John M. Whitehill, or in the said James Whitehill, and others the heirs of the said John Whitehill, deceased, at the sealing and delivery of the said indenture, or at any time before, whereby the said John M. Whitehill hath not kept with them his covenants aforesaid, but hath broken them.</p> <p>"And the said George and Andrew further aver, that the said John M. Whitehill hath not kept and fulfilled his covenant of warranty aforesaid; but hath broken the same in this behalf, that at the time of the sealing and delivery of the said indenture he the said John M. Whitehill had no lawful right arid title to the said ten acres of land neat measure, with the appurtenances, nor was be lawfully seised in fee simple thereof, nor had he right or title to convey the same; but that the lawful right and title to the same, at the time of the execution of the said indenture, was vested in John Penn and Richard, Penn, who were lawfully seised in fee simple of the said ten acres, with the appurtenances, as part of their manor of Springettsbury, in the county of York aforesaid, and that the said John Penn and Richard Penn afterwards, to wit, on the first day of November, in the year of our Lord one thousand eight hundred and sixteen, entered into possession of the said ten acres of land, with the appurtenances, and evicted the said George and Andrew out of the same, and now lawfully hold the same in fee simple, and so the said George and Andrew say that the said John M. Whitehill hath- not performed his said covenants, but hath broken the same, to the damage of the said George and Andrew three thousand dollars, and therefore they bring suit,” &c.</p> <p>The defendant pleaded performance, with leave, &e., to which the plaintiffs replied that he did not perform, and issue.</p> <p>When the cause was called for trial, the death of George Christine, for whose use the suit was brought, was suggested, and no process having issued to make- his administrators parties, and they not having become so, his former counsel moved to continue the cause, on the ground that there were no parties to the suit. But the court being of opinion that while Andrew Gotwalt was living there was a plaintiff who was a party to the suit, decided- that the death of George Christine was no cause for a continuance. This decision was the basis of the first bill of exceptions.</p> <p>After the jury had been sworn, the plaintiff gave in evidence a deed bearing date the 27th of July, 1814, from John M. White-hill to George Christine and Andrew Gotwalt, the material parts of which were in these words:—</p> <p>“ Witnesseth, that John M. Whitehill and wife, in consideration of twelve hundred dollars, have granted, bargained, and áold, aliened, enfeoffed, released, and confirmed, and do grant, bargain, and sell, alien, enfeoff, release, and confirm to George Christine, and Andrew Gotwalt, and to their heirs and assigns, all the following described piece or parcel of land, situate and being in Hellam township, and bounded and limited as follows: — Beginning at a rock at the river Susquehannah, thence, south, &c. to the place of beginning, containing ten acres neat measure, being part of the fifty-eight acres and one hundred perches of land, late the property of John Whitehiil, of Donegal township aforesaid, deceased, which was decreed by an Orphans’ Court of York county aforesaid, held the 15th of September, 1S12, unto John M. White-hill, a party hereto, one of the sons of the said John Whitehiil, deceased, and which James Whitehiil and others, the heirs of the said John Whitehiil, deceased, did by their deed of release, grant and confirm unto the said John M. Whitehiil, a party hereto, and to his heirs and assigns for ever.”</p> <p>The plaintiffs then gave in evidence the warrant to survey the manor of Springettsbury, dated the 21st of May, 1762, and the return of the survey thereon, dated the 12th of July, 1768, and proved that the land described by the deed, lay within the said manor. The plaintiffs having given notice to the defendant to produce a deed from the proprietaries or ownérs of the manor of Springettsbury, to himself, he produced one dated the 19th of July, 1822, from John and William Penn, to Jacob Strichler and John M. Whitehiil, for a tract of land, including the ten acres which were the subject of the present controversy. The plaintiffs having read the last-mentioned deed to the jury, rested their case.</p> <p>The defendant then, for the purpose of showing a good title in himself when he conveyed to the plaintiffs, offered in evidence a warrant to James Bailey, dated the 15th of April, 1763, for a tract of land, including that which the deed of the 27th of July, 1814, given in evidence by the plaintiffs, purported to convey, together with the survey made thereon, dated the 25th of the same month. The warrant granted the land to which it referred, “ provided it is not within our manor of Springettsbury:” on this ground the plaintiffs’ counsel objected to the evidence offered. The objection, however, was overruled by the court, to whose opinion the defendant’s counsel excepted.</p> <p>After having shown title in John Whitehiil, the father of the defendant, derived under the above-mentioned warrant to James Bailey, the defendant offered in evidence an exemplification of the record of the Orphans’ Court of York county, dated the 15th of September, 1812. This paper did not set out the proceedings of the Orphans’ Court, but merely stated that John M. Whitehiil appeared and agreed to take certain lands at the appraisement, and contained the decree of the court, assigning those lands to him. It was certified thus: “ I certify that the foregoing is a true copy, taken from the original record remaining in the office of the clerk of the Orphans’ Court of York county.” The court admitted the paper in evidence, though objected to by the counsel of the plaintiffs, at whose request another bill of exceptions was sealed.</p> <p>The defendant proposed to prove, by William Childs, who drew the deed of the 27th of July, 1814, that when applied to for that purpose, John M. Whitehiil and George Christine alone were present: that Mr. Whitehiil said, “ I have not the releases from my brothers and sisters, but will obtain them in a very short time.” Christine said he was satisfied. Mr. Whitehill was sufficient to him. I believe I made the remark that if Mr. White-hill was certain of obtaining them in a short time, I would insert it in the deed that they were obtained. It was' agreed by them both that I should. Mr. Christine then remarked, he must have a warranty ’title.</p> <p>The defendant further offered to prove, by John Smith, that in 1814, John Smith told him, that Mr. Whitehill had not got the releases at the time the title was made, but he was to get them shortly, as soon as he could conveniently obtain them; but observed that Mr. Whitehill was always good enough to him. The testimony of both these witnesses was objected to by the plaintiffs’ counsel, but the court received it, and an exception was taken.</p> <p>Evidence was then offered by the plaintiffs, that on the 30th of November, 1S16, George Christine had made an agreement to sell the land conveyed to himself and Andrew Gotwalt, but that the person with whom the agreement was made, on discovering that his title was good for nothing, refused to complete the contract. The counsel of the defendant objected to the evidence, and the court having rejected it, another bill of exceptions was tendered by the plaintiffs and sealed by the court.</p> <p>The evidence on both sides being closed, one of the counsel for the defendant began to address the jury. In the course of his argument, he contended that the breaches assigned in the declaration having stated that the title to the manor of Springettsbury was in John and Richard Penn, and it appearing from the deed of the 19th of July, 1822, to Jacob Strickler and John M. White-hill, given in evidence by the plaintiffs, that the title was in John and William Penn, the evidence did not correspond with the declaration, and consequently the plaintiffs could not recover. The plaintiffs’ counsel thereupon made to the court a motion in the following form: — “The defendant having been regularly notified to produce the title he obtained for the lands in dispute from the proprietaries of the manor of Springetlsbury, and having withheld the same until it was fully established that he had the same in his possession, and, on the production of the same, it appearing that John and William Penn are the proprietaries of the manor, and not John and Richard Penn, as stated in the declaration, the plaintiffs move, after one of the defendant’s counsel had begun to address the jury, to change the name of Richard, where it occurs in the declaration, to WilliamThis motion was opposed on the part of the defendant, and the court refused to permit the amendment to be made; upon which the plaintiffs’ counsel took another exception.</p> <p>Several legal propositions were submitted by the counsel on both sides to the court, who delivered to the jury a charge, of which the following parts are material:—</p> <p><£I have already stated the opinion of the court, that neither John Whitehill the father, nor John M. Whitehill the son, had any title to the lands conveyed. And it appears in testimony that no releases were executed at the- time of the conveyance, by the heirs of John Whitehill; and the question is, whether under these circumstances there is any thing in the deed which will warrant an action of covenant.</p> <p>44 We have all listened with great attention to the elaborate and ingenious arguments delivered on both sides of this question; I have given it all the consideration it deserves, and it is my opinion, after full deliberation, that the deed of the 27th of July, 1814, doth not contain an agreement or covenant, that the title in fee simple was vested in John Whitehill at his death, and on that event descended to John M. Whitehill, the defendant, and his brothers and sisters, and that upon an appraisement under the intestate law it was decreed to him and his heirs by the Orphans’ Court of York county. All this is stated in the deed, but notin such terms as amount to a covenant, on which an action can be sustained. It is not stated in the declaration as a covenant. There is no covenant in the deed, that the defendant or his father was seised of an indefeasible title, and therefore there is no covenant to warrant the breaches assigned in the declaration. Admitting the truth of the allegations in the first count, they would not form the subject of an action of covenant; but might probably be a good ground for an action on the case for deceit.</p> <p>44 The facts stated in the several counts, are, that John M. Whitehill, at the time he made the deed, had no title to the ten acres, nor any right to convey the same. 2dly, That the lawful right and title to the same, at the time of the execution of the deed, were vested in John and Richard Penn, or the proprietor of the manor of Springettsburg; and, 3dly, That John and Richard Penn entered into possession of the ten acres, with the appurtenances, and evicted the said George Christine and JLndrew Gotwalt out of the same.</p> <p>44 To entitle the plaintiffs to recover, they must prove each of their allegations — they have proved the title not to be in the defendant, but as they have alleged that the property in dispute was owned by John and Richard Penn, it is necessary for the plaintiffs to prove it, and proof that the property belonged to any other person will not be sufficient.</p> <p>44 It must be proved also, on behalf of the plaintiffs, that they were actually evicted under the paramount title stated in the declaration, as vested in John and Richard Penn. The warranty is not broken without an eviction, and the eviction is alleged in the declaration, and must be proved. It is true that the evidence of the paramount title stated in the declaration, and that the plaintiffs in consequence, yielded up the possession to such title, would be sufficient, and would support the allegation of eviction; for the law does not require, in the language of one of the judges of the Supreme Court, the idle and expensive ceremony of being turned out by legal process whén that result would be inevitable.”</p>

IN ERROR. Error to the Court of Common Pleas of Lancaster county. Feigned issue to try the right to a sum of money lodged in court. The sheriff had sold the land of William Brown. After satisfying previous liens, there remained a balance of the money produced by the sale, applicable to the next judgment; which balance was claimed by Johnson, also by Ramsey, the parties in the issue. Each had a judgment against Brown, but Ramsey’s was the elder.

<p>A plaintiff may, after amending his declaration twice, amend it a third time on trial, the act of assembly not fixing any limit to the number of amendments. It is no objection to amending the narr, in debt on a recognizance, (so as to make it a several recognizance,) that the writ has described the defendant as a joint and several recognizor.</p> <p>A plaintiff who is prevented by mistake from giving any evidence to the jury, is not prohibited by the act of assembly from the right to enter a nonsuit.</p>

IN ERROR. On the return of a writ of error from the court of Common Pleas of Lancaster county, accompanied by five bills of exceptions to evidence, it appeared, that on the 26th of April, 1821, judgment was entered in the court below in favour of Jacob Kaffroth, the defendant in error, against Jacob Martin and George Kuss, the plaintiffs in error, by virtue of a warrant of attorney, accompanying a bond dated the 18th of March, 1807, conditioned for the payment of three…

IN error. On the trial of this cause, in the Court of Common Pleas of Lancaster county, the plaintiffs in error, who were also plaintiffs below, offered the depositions of witnesses, taken under a commission to Baltimore: after having proved service of notice of the commission and a copy of the interrogatories, on the defendant’s attorney; the counsel for the defendant objected to the testimony, because the notice had not been served on the party, agreeably to a rule of…

APPEAL. Appeal by Elizabeth Barclay, surviving executrix of William Barclay, deceased, from the decree of the Orphans’ Court of Lancaster county, on the settlement by Samuel Morrison, administrator of Robert Anderson, who, in his lifetime, was co-executor of William Barclay, of the account of the said Robert Anderson’s administration of the estate of the said William Barclay.

<p>The book of a tailor to whom cloth is delivered to make a garment, and who swears, that it is his book of oi’iginal entries, and that the several entries were made at the time each bears date, but states that after he had cut out the work, and delivered it to the journeymen who lived in the house with him, he made the charge, and that this was the manner in which he kept his books, is admissible in evidence.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Tioga county, in an action of debt brought by the defendant in error, Aaron Furman, against the plaintiff in error, Dudley Newitt.

IN ERROR. On a writ of error to the Court of Common. Pleas of Lycoming county, it appeared that James Brown, the plaintiff in error, brought suit before a justice of the peace against George Honneter, and, on the 21st of July, 1824, obtained a judgment for eighty dollars forty-seven cents.

IN ERROR. The plaintiffs in error brought this action in the Court of Common Pleas of iküj^iw.county, against James M‘Conaby, the defendant in error, to recover the amount of his subscription for five shares of the stock of the company.

IN ERROR. It appeared from the record of this case, returned on a writ of error to the Court of Common Pleas of Mifflin county, that in the court below it was an action brought by the plaintiff in error, Hugh M'Allister, against John Hoffman, the defendant in error, to recover the sum of one hundred dollars deposited in the hands of the defendant as a stakeholder, on a bet upon the result of the last election for governor of Pennsylvania.

IN ERROR. Writ of error to the Court of Common Pleas of Mifflin county. Debt in the court below on recognizance against the plaintiffs in error, executors of TV. Beale, one of the sureties of T. Beale, sheriff of that county. To the declaration on the recognizance the defendants had pleaded payment, with leave to give the special matter in evidence; and issue was joined thereon.

IN ERROR. Writ of error to the Court of Common Pleas of Mifflin county. Ephraim Banks, the plaintiff in error, and defendant below, was sued by the Juniata Bank of Pennsylvania in this action of debt on single bill. The defendant below had been prothonotary of the Court of Common Pleas of Mifflin county, and pleaded a set-off of sundry sums claimed by him, as fees for his services as prothonotary, in sundry suits: in each of which the Juniata Bank was plaintiff.

This cause was tried on the 19th of Jlpril, 1827, before the Chief Justice, at a Circuit Court for Mifflin county, and now came before this court, on an appeal from his decision in overruling a motion made by the defendants for a new trial. It was an action of assumpsit, brought by the Juniata Bank against Elias W. Hale and James Chrisioell, upon a promissory note for seven thousand six hundred dollars, drawn by John Starrett in favour of E. PF.

On the return of the record of this ejectment from the court of Common Pleas of Mifflin county, the material facts appeared to be these: To November'Yevm, 1807, the administrators of James Stackpole issued a scire facias upon a mortgage against the administrators of John Allen, At August Term, 1811, the following entry was made upon the record: Judgment for sum due. By the court.

<p>in error.</p> <p>Error to the Court of Common- Pleas of Northumberland county.</p>

<p>The act of assembly of the 8th of April, 1826, respecting the relation of landlord and tenant between Connecticut settlers and Pennsylvania claimants, is constitutional, and operates on a case which had been previously tried in the Court of Common Pleas, and sent back by the Supreme Court for a new trial, so as to change the principle of law then decided by the Supreme Court, that the defendant, though a tenant, might contest the title of his landlord.</p>

IN ERROR. On a writ of error to Lycoming county, it appeared that George Bennett, the plaintiff in this ejectment, claimed an undivided third part of two hundred and forty acres of land in Nippernose township, the premises in dispute, under an improvement alleged to have been made by John Huff, in 1795, and conveyed by him by articles of agreement, in 1797, to George Bennett, who remained in possession until a judgment by default was obtained against him, when he was…

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Northumberland county</p> <p>Scire facias of a mortgage on four tracts of land therein specified, dated 23d of May, 1814, given by George Grant to William Cook, to secure payment of three bonds, amounting together to sixteen thousand nine hundred and ninety-nine dollars and ninety-nine cents, the first payable on the 1st of May, 1815; the second, on the 1st of May, 1816; the third, on the 1st of May, 1817, all bearing interest from the 1st of May, 1814. On this mortgage several payments had been made, and there were some judgments remaining a lien upon the estate of William, Cook, sen., deceased, part of whose estate was the land mortgaged, the whole amount of which the plaintiff consented should be deducted from the amount of the mortgage, being willing to look to the other devisees of William Cook, sen., for the contribution of their respective parts. As a defence to the scire facias, it was alleged, that the consideration of this mortgage was five tracts of land, containing in the whole about five hundred acres, and that one of them of about one hundred and fifty acres, called the M'Cully tract, the defendant had no title for. The plaintiff tendered and filed a deed in court for this tract. It was in evidence, that it was left out of the deed to George Grant, and left out of the mortgage given by him to William Cook, with the consent of all the parties concerned.</p> <p>The reasons assigned for leaving out the M'Cully tract were, that Alexander Colt, at the time of the delivery of the deed had some claim to it, and that the legal title to it was vested in James Lemons, the father-in-law of William Cook.</p> <p>The defendant offered as a witness William Grant, who was objected to by the plaintiff’s counsel. In support ef the objection’ they read the will of Thomas Grant, bearing date 12th of May, 1815; from which it appeared, that the five tracts of land above-mentioned, were held by George Grant, in trust for his father, Thomas Grant, who had advanced all the purchase money which had been paid. He directed his executors to pay the residue of the purchase money, and that the said five tracts be subject to the general division to be made among his children, of whom William, the witness offered, was one. In order to remove the objection to the competency of the witness, the defendant read to the court a release, dated August 25th, 1825, by William Grant and wife to his mother Deborah Grant, of all his interest in his father’s estate, and contended that being no longer interested, he ought to be received as a witness. The court, however, rejected the witness, and at the request of the defendant’s counsel, sealed a bill of exceptions.</p> <p>The plaintiff tendered to the defendant in open court a deed, dated August, 25th, 1825, from James Lemons and wife to George Grant, for the M'Cully tract.</p> <p>James Lemons was then sworn, who testified that he was present when the deed and mortgage were exchanged, and the 'money paid. One reason why the M‘Cully tract was not included in the deed was, that Cook had previously sold part of it to Alexander Colt, and the witness wished a settlement with Colt, lest Cook should be prosecuted for selling the land twice. He also wished the price of the M‘Cully tract fixed in such a way that Cook eould not spend it. He took Thomas Grant out and told him, “he wished the money secured;” but he did not recollect that Grant refused the deed until that tract was put in. The witness was satisfied with the sale made by Cook, and was present when the deed was made, and the papers securing the dower of Mrs. Cook. A settlement was afterwards made with Colt, who had begun to build a mill, and had part of the race dug. He did not know of any particular delivery of possession to Grant. He had nothing to do with the land since. Never rented it or received any of the proceeds. A good part was cultivated. When Cook sold it, to Grant it was leased to Furman, afterwards to Fries and Gaskin. After Cook moved to Bloomsbury, the witness acted for him in presence of Mrs. Cook, and in his absence had a power of attorney from him. He was present at a calculation made by Mr. Priestly and John Cook, in the presence of George Grant and William Cook. They were appointed by George Grant and the witness; at the time appointed J. Priestly, John Cook, George Grant, William Cook, and the witness attended. William Cook’s mind was at that time very weak, and the witness acted for him. They went over the accounts, receipts, &c., and a statement was made out by J. Priestly on the 16th of April, 1821. Something was said by George Grant about the deed for the M‘Cully tract, and the witness said he might have it at any time. The witness frequently conversed with George Grant about the M'Cully tract, and said, he might have the deed for it at any time — offered it before the witnesses. He said he would not give a cent for any title that was in me. About the time that suit was commenced on the mortgage for Mrs. Cook’s dower, after its commencement, the witness told him he ought have the title for the M'Cidly tract. George Grant told him not to give him the title, that he wanted to defeat Simpson. Afterwards when the witness said to him the same thing, he said, “ I bought no land of youN</p> <p>About the time of the arbitration in this suit with Simpson, the conversation took place, in which Grant asked the plaintiff not to make a deed. The witness then told Grant, be ought to have the deed for the M‘Cully tract. Grant told him, no — not to give it to him now; he wished to defeat Perry Simpson. When we were laying a plot to defeat Simpson, it was at the place of the arbitration; no one was present but Grant, Hepburn and Simpson. George’s title was spoken of, and of the witness having the title to the M'Cully tract. Mr. Hepburn did not like to engage in it. There was no plot: he seemed to be afraid to go on with the suit. I advised him to go on, and said, he could not fail to gain it.</p> <p>The witness told Thomas Grant privately, he wished the proceeds of that tract might be secured to the wife and family of William Cook: he was satisfied, and the money was paid. A bond was deposited with Captain Boyd to secure the dower of old Mrs. Cook. Thomas Grant pulled out of his pocket part of the money. George had part. The witness paid one hundred and eighty-six dollars for the M‘Cidly tract. In 1811, Mr. Cowden swore it was worth ten dollars, and the witness thought it a high price.</p> <p>John Hannah testified, that Cook told him in the winter of 1814, he had sold all his possessions in that property to George Grant. After Cook moved to Bloomsbury, Lemons said, that William Cook had been to George Grant to receive a payment, and he had received a payment and gone to Bloomsbury, and he was informed that several persons had gone from Sunbury after and with him, to get him to gamble, and get the money out of his hands; and it was his opinion the money would never do him any good — that there was part of the property, the title to which was in him — that if he got the mill, all the rest he was to take care of, and keep that for his wife and children. Lemons said he was present when the survey was made of the land sold to Alexander Colt — that he went along with them till they interfered with the M‘Cidly tract, and he then told them to stop.</p> <p>William Wilson testified that he was present when Cook and Grant first made the bargain; they had concluded so far as that Grant offered him two thousand dollars.</p> <p>They then went to Mr. Hamilton's room. The number of aeres ■was mentioned. -Grant -said, if there was so many acres he would .give two thousand one hundred dollars. /Cook replied, there were :five hundred acres good, if not more. They went to Hepburn -to draw the article, but he would not’ for fear of. the forfeiture — there ■ was to be a deduction in proportion to the-quantity.wanting. The article was then finally-agreed on, but no article was drawn.</p> <p>Lemons told the witness he had-.purchased-the tract of land that was sold as' William Cook's, and he had the deed in his pocket, and he would never make it over to’ Cook, but keep it for his wife -and children, after Cook had spent all he had. He showed me the deed signed Daniel .Lebo, sheriff. I was present when Lemons said he should fix a day to go up and make him a deed; and Grant • said he had bought no land of him.</p> <p>A power of attorney, dated August 29, 1820, was then produced from William Cook to James Lemons.</p> <p>George Kremer testified, that Lemons said he had purchased the M‘Gully tract, but he never meant to make any thing by it; that he was present when the sale was made to -Grant. He said-he was perfectly willing to convey, but wanted the money arising-Trom • the sale' secured to-Mrs. -Cook's.family; and-asked my advice, whether-he was bound to convey until' it-.was'secured; that the title was in him, and-he had consented to the sale. I gave him my decided opinion, that he was bound to convey.</p> <p>Jacob Cook, a witness for the- defendant, stated, that Lemons told him he was on the jury when the M‘Cully tract was condemned. After the M'Cully tract was struck off to him, he gave the, crier one dollar, which made one hundred and eighty-six dollars: he intimated that-he would have the deed — he did not-know what had'got into my father’s and mother’s head to suppose Bill -■■Cook's money had bought the land — his own money paid for it. .-He said, he “paid for the land — he had the deed, and would keep it.”</p> <p>Jacob' Tann testified, that.Lemons said he was glad he had the deed for the ■M'Cully tract — he would have that at all events, •for the widow and children, if he should lose the rest-in the trial between Stedman and him.</p> <p>JLlban Newberry testified, that Lemons told him, William Cools was spending his money as fast as hie could — -that .-George Grant had better be cautious about paying the money for-this tract, as one part.of the title was in him, and he intended to.keep it for his daughter. The defendant then offered the administrationaccount of Thomas..Grant, executor of -William'Cook, dated 23d. óf Janua■ry, 1810. Balance due on account three hundred and twenty-six dollars and thirty-five cents. The plaintiffs objected, and the court sustained the objectionyand at the defendant’s.instance-sealed a bill of exceptions.</p> <p>John Cowden testified, that Lemons told him he would not make title to Grant for the M'-Cully tract — that he intended to keep it, for he thought his son Cook was not doing well, and would run through the property, but that he would save that for Mrs. Cook and the children. He said this several times, both before and after the sale to Grant. Did not say the proceeds, but the land itself. Grant was not present at any of these conversations.</p> <p>Jeremiah Simpson testified, that at the arbitration in the suit James Lemons for the use of Sarah Cook v. George Grant, in July, 1833, Lemons was produced as a witness — he came forward with a deed in his hand, and laid it on the table — said he had purchased the property, meaning the M‘Cully tract, and paid for it, and meant to hold it. There was a short instrument drawn up, proposing that James Lemons should convey the tract to the defendant, Grant; and on the heirs of William Cook, senr., deceased, agreeing not to demand any money that Grant should pay to Sarah Cook, he should immediately pay Sarah Cook six hundred dollars. It was refused by Lemons, who said he was not to convey it — had paid for it, and would hold it.</p> <p>Henry Masser was an arbitrator in the case of Mrs. Cook v. - George Grant,, for the widow’s dower. Lemons was a witness: he brought a deed for part of the land purchased by George Grant of Cook. He stated he hád a title for it — he did this to defend George Grant from paying the whole dower. Pie was sworn, and had the deed in his hand — -he said he would not give it up till he was satisfied. This arbitration was in 1833.</p> <p>James Lee, also an arbitrator, stated that Lemons said he meant to keep the M‘Cully tract for the widow and heirs. George Grant said, if they would make him a title to the property, he would pay Mrs. Cook six hundred dollars — Lemons said he would not give it up.</p> <p>The deposition of Mrs. Cook proved that Lemons said, he would keep the M‘Cully tract for Martha Cook and her heirs.</p> <p>The plaintiff, to rebut, produced Daniel Qarion, who proved that he lived on the M'Cully tract, as tenant of Grant, four years last JLpril — Peter Fries lived there before him; he did not know under whom.</p> <p>John Boyd and Mr. De Gruchy, proved that there was an amicable reference between William Cook and George Grant, about the possession of the M'-Cully tract, and the referees allowed him three hundred and thirty-three dollars for being kept out of possession. Both were satisfied. Lemons was examined as a witness, and there was no complaint that he would not to make title.</p> <p>P. Lemons. — I was present after the calculation of Mr. Priestly and John Cook was made. My father said he was ready to give him a title at any time. Grant said he would not to give a cent for any title he had-^he had bought the land of William Cook, not of him. My father has never been in possession since. He said he wished that tract to go to the benefit of Cook's wife and children; always said it should not be divided among his other heirs.</p> <p>James Hepburn. On a former occasion some years before, George Grant demanded a deed from Lemons, who turned on his heel — turned from the subject.</p> <p>The President of the court below charged the jury, among other things, as follows:—</p> <p>The reasons which have been assigned forleaving out this M'Cully tract were, that Alexander Coll, at the time of the delivery of the deed, had some claim to this tract, and, that the legal title for this tract was vested in James Lemons. It, therefore, became necessary for William Cook to extinguish the claim of Colt, and procure a deed from his father-in-law, James Lemons, to complete a title to George Grant. It is in evidence, that William Cook extinguished the claim of Alexander Colt. There was then no obstacle but for Lemons to convey: he was willing to convey upon the amount being secured to Mrs. Cook and her children. It is in evidence, that James Lemons was present at the delivery of the deed and mortgage; that he assented to the sale made by his son-in-law, William Cook, to George Grant; that he saw the first instalments paid by Grant, and bonds given for the balance. Possession of all the five tracts was taken by George Grant; he has held possession ever since, and a deed is now brought into court, and tendered to George Grant, and filed. George Grant recovered by a reference three hundred and twenty dollars, as a consideration for his not obtaining possession of the M( Cully tract as soon as he^ was entitled to it. James Lemons standing by, and seeing his son-in-law, William Cook, sell a tract of land to which he had a legal title, and, not objecting, Lemons would be postponed. Of this fact the jury will determine. A parol contract for the sale of land, the purchaser paying part of the purchase money, giving bonds for the remainder, and the purchaser taking possession and holding possession, is a part execution of a contract which cannot be rescinded without the consent of both parties; nor is such a case within the statute of fraud and perjuries. Upon the one hand, George Grant is entitled to a legal title, and the plaintiff to her money, which would be a compliance with the contract. If George Grant had tendered the purchase money, and demanded his title, and it had been refused to him, it would have presented a different case.</p> <p>The court are of opinion that the tender of" the deed, and filing it in court., is sufficient to entitle the plaintiff to recover the purchase money. But if any legal objection could be made to the acceptance of the deed from any defect of title, or a want of proper warranty, the court could stay éxecution, and would do it until the title was completed. There has been a great fall of property since this purchase. It would appear that the Grants gave an extravagant price* for this land, and every person must commiserate their situation. But whether land rises or falls in price, the court has no power to alter the contracts of the parties; - If it was not in the power of ' the plaintiffs to make a title for the M'Cully tract,-the court would ' direct the jury to-deduct the value of this tract from the purchase money of the mortgage; but there was no evidence before the court but what Lemons-can make good the title; and if the deed filed in the court does not convey a good title,.the court could stay execution until every defect, ifany, is remedied.</p> <p>The defendant requested the court to charge the jury as follows:</p> <p>1. That, as there-was no contract between James Lemons and George Grant, for the M‘Cully tract, there could be no part execution of contract-in the present casej and that this is not a case of partexeeution of contract.</p> <p>. 2. That James .Lemons has done no act by which he would be</p> <p>bound to-convey to Grant, that, as- he is- not bound, Grant' also is not bound.</p> <p>3. -The Court-are requested to state by what act or acts, if any, Lemons is bound to convey to Grant the M‘Cully tract.</p> <p>4; That James Lemons, in an ejectment, might legally recover possession of the M'Cully tract; nor has he done a single act that would prevent his recovery.</p> <p>5. That, if the jury believe that Lemons would not convey without settlement on Cook’s wife,-the taking possession of Grant, under Cook, was a trespass, and no part execution of the contract.</p> <p>6. That Cook is nota bona fide contractor, and not having tendered a deed to Grant, during his life; and procured no title from Lemons, his representatives cannot recover for the M‘Cullytract; and,</p> <p>7. ' That the will of Thomas Grants imposes no -burden on-George Grant to pay this money.</p> <p>The court gave the following answers:</p> <p>1. James Lemons assenting to the contract made by his son-in-law, (if the jury are satisfie'd-he did assent;) his standing by, seeing Grant pay part of the purchase money,, give his bonds for the remainder, giving possession to George Grant, James Lemons would be bound to convey, and these acts would be a part execution of the contract.</p> <p>2. In every contract, there must be a reciprocity, so as to be binding on each party; and Lemons, by assenting to the contract made by his son-in-law, William Cook, with George Grant, is bound to convey to George Grant,</p> <p>3. In answer to the first point, the court have answered this point. . '</p> <p>A. James Lemons, by assenting to the contract made by Cook with Grant, could not support an-ejeetment against George Grant, except for the recovery of the purchase money.</p> <p>5. If the jury believe- George Grant took possession of the M'Cully tract, by the consent of Lemons and Cook, he is not a trespasser. It was in Cook’s-power to secure to his wife and children, at any time, the amount of-the M'Cully tract; and upon his so doing, Lemon could have made a deed. Cook died, and devised his estate to his wife and children.</p> <p>6. Cook did not, during his lifetime,-tender a deed; nor did Grant tender the purchase -money, as appears from the evidence. The representatives of Cook, stand in the situation of Cook, in his lifetime, and if they fulfil'their contract, he would be obliged to fulfil his contract.-</p> <p>7. George Grant is an executor of his father’s estate; his father, by his will;-;directs this purchase money to be paid out of his estate. This would impose an obligation on his executors to pay the money, unless some legal objection could be made to the payment-of the money.</p> <p>The defendant excepted, and now assigned as errors:</p> <p>1. There is error in the first bill of exceptions.</p> <p>2. Also in the second.</p> <p>3. Also in the answers to the points.</p> <p>2. There is error in the court stating, that the plaintiff had a right to recover, on tendering the deed and filing it in court; and, that the court could stay execution until the deed was perfected; as a lender of the deed was necessary for ihe-M‘Cully tract, before the-commencement of this suit.</p> <p>5. The court erred in stating, that it was necessaryfor George-Grant to tender the purchase money.</p> <p>6. In stating that George Grant was entitled to the legal title, and the plaintiff to her purchase money.</p>

IN ERROR. The record of this case, returned on a writ of error to the Court of Common Pleas of Susquehannah county, showed, that it was an action of debt brought by the defendants in error, the plaintiffs below, against the plaintiffs in error,the defendants below. The nature and circumstances of the case are sufficiently explained in the opinion of the court, which was delivered by

IN ERROR. Writ of error to the Court of Common Pleas of Northumberland county, where a verdict and judgment were rendered in favour of the defendants in error, the plaintiffs below. It was an ejectment brought by Benjamin Lodge and others against William Pipher and William A. Lloyd. The plaintiffs claimed one hundred and fifty acres of land upon the north-east branch of the Susquehannah, which they alleged Jonathan Lodge, deceased, purchased of Reuben Haines.

<p>This cause, which was an action of covenant brought by John Strohecker, who survived John Garver, against George, Deborah, and William Grant, executors of Thomas Grant, deceased, was tried before Rogers, J., at a circuit court for Northumberland county on the 18th of April, 1827, when the jury under the direction of the judge gave a verdict for the plaintiff. A motion was made on behalf of the defendants for a new trial, which having been overruled, an appeal was entered to the Supreme Court in Bank.</p> <p>The cause had been removed by certiorari from the Court of Common Pleas of Northumberland county, where, on the 23d of April, 1826, Mr. Weaver, administrator de bonis non with the will annexed, was substituted in the place of the original defendants, who were discharged from their office.</p> <p>The declaration, contained three counts, the first of which set forth that Thomas Grant in his lifetime; viz. on the 26th of April, 1S15, by his agreement of that date, made with Daniel Strohecker, who was the agent of John Strohecker and John Garver, duly authorised, and in consideration of sixly-dollars an acre for the land therein mentioned, to be paid to the said Thomas and his executors, did covenant and agree with the said John Strohecker and John Garver by their agent the said Daniel Strohecker, to sell and assure unto the said John Strohecker and John Garver, their heirs and assigns, all that certain tract of land, &c., free and clear of all incumbrances, done or suffered by the said Thomas; and the said Thomas did then and there for himself, his executors, and administrators, covenant and agree to and with the said John Strohecker and John Garver, by their agent aforesaid, that before and at the time of executing the aforesaid articles of agreement, he the said Thomas was the true proper, sole, and lawful owner of the said premises, and had good right and lawful authority to sell, grant, and assure the same free and clear of and from all other grants, bargains, and incumbrances whatsoever. And the said plaintiff saitb, that the said Thomas, afterwards, to wit, on the 12th of May, 1815, made his last vf ill and testament, whereby he appointed the.aforesaid Deborah, George, and Williamhis executors, and gave them full authority to sell and convey the land of which he died seised, and to execute fully the contracts made by him in the same manner as if he were living; after whose death the executors aforesaid, by their deed dated the 15th of June, 1816, duly executed, acknowledged and recorded, in pursuance of the power vested in them, and in that capacity only, in compliance with the said agreement, in consideration of sixteen thousand five hundred and three dollars and thirty-two cents by the said John Strohecker and John Garver paid to the said executors, and in execution of the articles of agreement aforesaid, did grant, bargain, sell, convey, gnd assure unto the said John Strohecker and John Garver, their heirs and assigns, the aforesaid tract of land,&c., and by the same, the said Deborah, George, and William, as executors aforesaid, and in that capacity, did covenant that they, the said executors, would warrant and defend the premises to the said John Strohecker and John Garver, their heirs and assigns, against the lawful claims of all persons whatsoever; and the said John Strohecker and John Garver, there afterwards on the same day and year last aforesaid, entered into the said tract of land, and became possessed .thereof, and ought to have and enjoy the same as their lawful estafe in fee simple, according to the aforesaid covenants of the said Thomas in his lifetime, and his said executors since his death; but neither the said Thomas in his lifetime, nor his executors since his death, have kept their and each of their covenants aforesaid respectively, but have, broken the same; for that he the said Thomas was not lawfully seised in fee of said tract of land, and had not good right to sell and convey the same to the said John Strohecker and John Garver, in fee simple, and that he hath not, nor have his executors warranted and defended the same to the said John Strohecker, who survived the said John Garver, although severally requested so to do; but a certain Rebecca Stedman being the rightful owner of ninety-five acres, part of the said tract of land sold and conveyed in fee to the said John Strohecker and John Garver, taken from, &c., of the breadth, of, &c., on the river, &c., of the value of six thousand dollars, the said Rebecca recovered judgment for her seisin and possession, &e., against the said John Strohecker, who survived the said John Garver and his tenants, at a Court of Common Pleas held, &c., and by force of an execution issued thereon, she the said Rebecca, afterwards, to wit, &c., entered into the said ninety-five acres, and became legally seised thereof, and now legally holds the same in fee, and so the said Thomas in his lifetime, and his said executors since his death, have not kept their covenants aforesaid, but have broken them, to the damage, &c.</p> <p>The second count set forth, that Thomas Grant, in his lifetime, by articles of agreement dated the 26th of JLpril, 1815, made between him and the aforesaid John Strohecker and John Garver, in consideration, &c., did grant, bargain, and sell unto, the said John Strohecher and John Garver, in fee simple, all that certain tract, &c., and the said Thomas, for himself, his executors, and administrators, did covenant and agree with the said John Strohecker and John Garver, that he was legally seised in fee of the premises, iree of all incumbrances done or suffered by himself, and at the time of executing the said articles, and before, was the sole and lawful owner of the said tract of land, and had good right and lawful authority to grant, convey, and assure the same- free and clear of all other grants, bargains, and incumbrances whatsoever; that the said John Strohecher and John Garver paid the purchase money and entered into possession of the premises. It then averred, that the said Thomas Grant, at the time of executing the agreement, was not seised in fee of the said tract of land, and had not good and lawful authority to convey and assure the same, and that the premises were not free and clear of all other grants, bargains, and incumbrances whatsoever, but that theright and title to ninety-five aeres, part of the said tract, was in a certain Rebecca Stedman, who recovered the same by due process of law, &c. ■</p> <p>The third count set forth the agreement, dated the 26th of April, 1815, between Thomas Grant and John Strohecher and John Garver, the death of Thomas Grant, after having made a will by which he appointed the defendants his executors, with power to sell, as stated in the first count, and that the defendants, by virtue of that power, and in pursuance of the agreement, on the 14th of June, 1816, did, by their deed, grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said John Strohecher and John Garver, their heirs and assigns, the aforesaid tract of land, &c. That the said executors, in that capacity, did covenant, promise, and grant, to and with the said John Strohecher and John Garver, that the said Thomas. Grant, in his lifetime, and at and before the execution of the agreement, was the proper, sole, and lawful owner of the premises, and died seised thereof. That the defendants had in themselves, as executors, good right, full power, and legal authority.to grant, bargain, sell, and release, and confirm the same to hold as aforesaid, and that they were free and clear, and freely and clearly exonerated, discharged and acquitted of and from all other gifts, grants, bargains, sales, and, incumbrances whatever, done or suffered, either by the said Thomas in his lifetime, or by his executors since his death; and that the said executors, in that capacity, would warrant and defend the same against the lawful claims and demands of all persons whatsoever. The count then denied the performance of the covenants by the defendants, and the eviction of ninety-five acres, part of the premises conveyed, by the recovery thereof by Rebecca Stedman.</p> <p>To this declaration, the defendants pleaded non est factum, non infregerunt conventiones, non damnificatus, award and satisfaction, covenants performed, &c.; to which they afterwards added the following plea; — -</p> <p>That on the-day of-, Jl. D.-, an amicable partition was had between the said John Strohecker and the heirs of the said John Garver, deceased, whereby the heirs became seised of a moiety of the land conveyed by the executors of Thomas Grant to John Strohecker and John Garver, which moiety included the quantity of 95 acres, of which the plaintiff in his declaration alleges an eviction by a certain Rebecca Stedman; and, being so thereof seised, the heirs of the said John Garver sold, and by their deed, with covenants of special warranty, dated the 29th of Jlpril, 1820, conveyed {inter alia) for a valuable consideration, the said ninety-five acres to a certain George Kremer, who, after the eviction aforesaid, compromised with the said executors of the said Thomas Grant, and settled with them all claim for damages sustained by reason of the said eviction,, and hath received from them full compensation therefor; and the said defendants for farther plea allege, that, in consequence of the partition so as aforesaid, between the said John Strohecker and the heirs of the said John Garver, no right of action on the covenant of general warranty in the conveyance of the executors of the said Thomas Grant to the said John Strohecker and John Garver could accrue to the said John Strohecker; for that he still retains possession of, and remains in the full and undisturbed enjoyment of the portion of land allotted to him in the amicable partition, so as aforesaid made, and the defendants further say, that the estate of the said Thomas Grant, deceased, is not liable to any damages, on any of the covenants in the said declaration of the said plaintiff mentioned.</p> <p>And for further plea, the defendants say that the ssiJJohn Strohecker and John Garver were not parties to the said agreement with the said Thomas Grant, nor was either of them, nor were they or either of them bound thereby; but that the same was made by the said Thomas Grant with Daniel Strohecker, the said Daniel acting therein in his own right and behalf, and without any authority from the said John Strohecker and John Garver, or either of them, as, either of their agent or attorney in the said agreement, &c.</p> <p>Upon the evidence given under these pleadings, which, as the opinion of the court turned upon the sufficiency of the declaration need not be stated, His Honour instructed the jury that the plaintiff was entitled to recover, and that the measure of damages was the purchase money paid for the land, with interest from the time of eviction.</p>

IN ERROR. Writ of error to the Court of Common Pleas of Lycoming county.

<p>Lands vested in the commonwealth, under the act of attainder of 1779, could be sold only in the mode prescribed by that act, and its supplement.</p> <p>■ The limitation of suits for land, does not run against the Commonwealth.,</p> <p>Ejectment lies by a mortgagee: but, on his recovery, it is error to limit the right of redemption to one year.</p> <p>A verdict in ejectment for the mortgagee; “he to extinguish all claims of the</p> <p>Miles family,” is uncertain and erroneous. . '</p>

<p>If tinder a judgment against the sheriff and his sureties, a levy be made upon the goods of the sheriff which are released by the agreement of the plaintiff, the sureties are discharged to the amount the goods would have sold for at sheriff’s sale, after deducting the expenses of the sale.</p>

<p>Plaintiff sued in the Common Pleas for a debt exceeding one hundred dollars, without filing a previous affidavit that he truly believed the sum due exceeded one hundred dollars. The verdict for the plaintiff was reduced' below that sum, by the set-off of the defendant. Held, that the plaintiff was entitled to his costs.</p>

<p>A practice by a storekeeper to balance his books at the end of each year, and charge interest on the balance of a running account, upon which there has been no settlement, is illegal.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Mifflin county.</p> <p>The suit was brought by Levi Reynolds, assignee of David Reynolds, who was assignee of M. M. Monahan, against the plaintiff in error and defendant below, Daniel Christy, executor of Samuel Custer, to recover the amount of a single bill, dated the 1st of June, 1822, made by Samuel Custer, the intestate, in his lifetime, for the payment of fifty-sis dollars and eighty-seven cents, interest from the 1st of June, 1836s©, to M. M. Monahan, and assigned by him to David Reynolds, and by him to the plaintiff.</p> <p>The defendant proved, that this single bill was given in consideration of a tract of land, sold by David Reynolds to Samuel Custer, situate in Mifflin county, and then gave in evidence, a deed dated the 28th of June, 1820: David Reynolds and wife, to Samuel Custer, for some land in consideration of two hundred and eighty-three dollars, with covenant of general warranty, as follows: “And the said David Reynolds, for himself, his heirs, executors, and administrators, doth covenant, promise, grant, and agree, to and with the said Samuel Custer, his heirs and assigns, by these presents, that he, the said David Reynolds, and his heirs, the said above-mentioned and described messuage, or tenement and tract of land, hereditaments, and premises, hereby granted or mentioned, or intended so to be, with the appurtenances, unto the said Samuel Custer, his heirs and assigns, against him, the said David Reynolds, and his heirs, and against all and every other pei’son or persons whomsoever, lawfully claiming or to claim from or under him or them, or any of them, shall and will warrant, and for ever defend, by these presents.” The defendant then offered in evidence, judgments obtained against David Reynolds in the Court of Common Pleas of Mifflin county, previous to the 1st of June, 1820, to the amount of one thousand dollars, which were a lien on the said land at the time of its sale by Reynolds to Custer, as above-mentioned, and which were regularly revived, and the lien on the said land continued úp to the time of trial: to which evidence the plaintiff objected, and the court rejected it, and sealed a bill of exceptions. The defendant then offered in evidence, a judgment obtained against David Reynolds in the Court of Common Pleas of Mifflin county; in November, 1821, a fieri facias issued upon the said judgment, and levy upon the land, for which the single bill upon which this suit is brought was given: an inquisition annexed to the fieri facias, condemnation, and a venditioni exponas issued out of the same court, by virtue of which, the land aforesaid was sold to M. M. Monahan by the sheriff of Mifflin county: and a deed from George M'Culloch, the sheriff of Mifflin county, dated January, 1827, and acknowledged in the Court of Common Pleas of Mifflin county, the 17th of January, 1827, to M. M. Monahan for the land, in consideration of which the single bill in question was given. The plaintiff objected to •the evidence: the court rejected it, on the ground that the judgment and all subsequent proceedings thereon, were long since the sale and conveyance of the .land by David Reynolds to Custer; and the defendant tendered a bill of exceptions.</p>

<p>in error.</p> <p>Writ of error to the Court of Common Pleas of Mifflin county, in a suit brought by Thomas Tod, administrator of Thomas Beale, against Robert C. Gallagher, in which a verdict and judgment was rendered in favour of the defendant.</p> <p>It was an action of debt on two notes, of one hundred dollars each, given by Gallagher to Thomas Beale, in his lifetime, dated each, 30th of June, 1821, one payable on the 1st of April, 1822, and the other on the 1st of April, 1823.</p> <p>Plea, payment with leave, &c. The defendant proved, that the notes were given in part payment, for a house and lot in Mifflin town, sold by Beale to Gallagher, for three hundred and fifty dollars, by article of agreement, dated 17th of February, 1821, and a deed from Beale to Gallagher, with general warranty, dated June 20th, 1821; after which, on the 30th of June, 1821, Gallagher gave the notes in question. Gallagher entered into possession of the house and lots, and is still in possession.</p> <p>The defendants then showed that the house and lots had been bought by Beale from one Daniel Crawford: that while Crawford owned the property, a judgment was entered against him in favour of E. Banks, for one hundred and thirty-four dollars and twenty-two cents. After Gallagher’s purchase, and after he took possession, a fieri facias on this judgment was levied on the house and lots; and they were sold and purchased by Gallagher for one hundred and fifty dollars. The paper book stated they were not sold until after the two notes of one hundred dollars from Gallagher to Beale fell due; but it was alleged this was contrary to the fact, and that the sale took place before the last note was due.</p> <p>The plaintiffs admitted the defendant was entitled to credit for the amount he paid for the incumbrance: viz. one hundred and fifty dollars, and claimed only the balance due on the notes after allowing such credit; and asked of the judge to charge the juiy, that the plaintiff was entitled to. recover such balance. In the abstract of the charge, it was stated, “ this the court refused, and charged the jury, that by the article a clear deed was to be made on the payment of three hundred and fifty dollars; these were mutual and dependent covenants. There being a lien and incumbrance on the land, when the payments were due, Gallagher might have refused to give his notes until that incumbrance was removed. I do not think the position of the plaintiff’s counsel is sound; and it is my opinion, and that of the court, that under the evidence in the cause, the plaintiff cannot recover.”</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common pleas of Northumberland county, in a suit brought by Jacob Breyfogle, the plaintiff in error and plaintiff below, against Daniel Beckley, the defendant in error and defendant below.</p>

IN ERROR. Error to (he Court of Common Pleas of Northumberland county, in an ejectment brought by John Fasholt, the plaintiff in error and plaintiff below, against John Feed, the defendant in error and defendant below, and the following were the circumstances appearing on the trial: On the 11th of March, 1816, John Feed contracted to sell a tract of land to Valentine Fasholt, at the price of eight pounds per acre.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Mercer county.</p> <p>Ejectment by James Hawthorn, the plaintiff in error and plain» tiff below, against Thomas Bronson, for donation, lot No. 804, containing two hundred acres.</p> <p>The plaintiff claimed under articles of agreement under seal, between himself and George Decamp, dated the 10th of October, 1818$ the defendant under a deed from Decamp and wife to him, and George Shilling, dated the 30th of January, 1824, and recorded the 29th of September, 1824.</p> <p>The articles “ witnessed, that Hawthorn had purchased from the said George, a certain lot of land, (the premises in dispute,) for the sum of five hundred and eighty dollars, in manner and form following, viz. one hundred and fifty dollars in hand, including two demands in favour of Jonathan Smith and Charles ■ Beno, amounting to about forty-five dollars, and one hundred and thirty dollars, on the 1st of April, 1819, provided the said George Decamp makes .a good and sufficient deed for the said premises; otherwise, payment to be delayed, until title is made; and on the title being made the said Hawthorn binds the land by mortgage to'the said George Decamp, as the surety for the balance of the money, then unpaid, which balance is to be paid by Hawthorn in annual payments of one hundred dollars each, until paid; and in consideration of these presents, the said Decamp authorizes the said Hawthorn to enter on and take possession of the said premises.”</p> <p>At the same time the following bond of indemnity was executed:</p> <p>“ Know all men by these presents, that we George Decamp and Jacob Trout, of the county of Mercer and state of Pennsylvania, are held and firmly bound by these presents to James Hawthorn of the borough of Mercer, in the penal sum of two thousand dollars, lawful money of the United States; and we authorize Thomas J. Cunningham, or any other attorney of record to appear for us, and enter judgment in any competent court within this commonwealth. Witness our hands and seals this 10th day of October, 1818. The condition of the above bounden George Decamp and Jacob Trout is as follows: if the said Decamp performs all the conditions of an article of agreement, attached to this instrument, and bearing even date herewith, then the above obligation to be void; otherwise to remain in full force and virtue. Witness our hands and seals, this date above written.</p> <p> George Decamp. </p> <p> Jacob Trout. </p> <p>On the articles, were the following indorsements.</p> <p>It is further agreed, that Hawthorn is to have, twenty dollars, out of the next spring’s payment, as a compensation for selling the Said land. George Decamp.</p> <p> Thomas Templeton. </p> <p>Received, on the date above, one hundred and fifty dollars on the within contract: witness my hand this 18th day of October, 1818. George Decamp.</p> <p>Thomas S. Cunningham’s deposition was then read, that sometime in the month of September, 1824, he, in pursuance of a written authority from Hawthorn, tendered to Decamp one hundred and ten dollars, being the amount of money due by Hawthorn to Decamp, on an article of agreement for the tract of land, on which Thomas Bronson then resided, and for which this ejectment is brought, and demanded a deed to the said Hawthorn, agreeably to said article. He told Decamp, that if the- money tendered was not enough, he would pay the proper amount. Decamp said, you need make no tender, you need not count the money, I agree you have tendered enough, I will not make a title to Hawthorn,” or words in substance the same. The tender'was made before this suit was brought. That some time before, of about the time Bronson was purchasing the said tract of land from Decamp, or paying part of the purchase money, he told the said Bronson he had better not purchase from Decamp, or pay him, as Decamp had sold the land to Hawthorn, and that Hawthorn would give him trouble, or turn him off the land at that time. _</p> <p>John Hawthorn stated, he heard Thomas Bronson say he knew of Hawthorn’s claim -of his purchase, but that Jacob Trout had told him Hawthorn had given up, and that he would not have purchased but for that, and if he were put to trouble, he would blame Trout for it. He saw Bronson on this land in February, 1824. Being cross-examined by the defendant, he stated that he lived there in November, 1824; there.were considerable improvements; two cabins, and one end of a cabin barn: he could not say how much clear land; it might have been fifteen or twenty acres; he understood Bi'onson had made these improvements. Being reexamined, he stated that in February, 1824, Bronson said to Hawthorn, I understand you are going to bring an ejectment against me:” Hawthorn said he would have to see to himself: Hawthorn said, now Bronson you blame me for not taking Decamp’s deed, and what have you done more than I have done? Decamp promised you, as he did me, to get the release of the rest of the heirs, and he has not done it.” Bronson’s reply was, Yes, we have done more, we have made a tender of the money.” Bronson then said, 44 Trout had told him Hawthorn had given up.” Bronson said, 44 I think you told me something like that yourself, and that you would have nothing to do with it.” Hawthorn said, 44 it was the deed.he would have nothing to do with, without the release of the heirs.” ■ Hawthorn asked Bronson, 44 what have you done more than I have? you paid two hundred dollars, and I paid one hundred and fifty dollars.” Bronson said, 44 we have done more, we have tendered the money. ” Hawthorn said, 44 did I not give you warning, and tell you spt to have any thing to do with Decamp: you will find him a troublesome fellow.” Bronson replied, 44 yes, you did.” I cannot say they mentioned as to what time the former conversation between them, should have taken place.</p> <p>Samuel M‘Kay testified, that before Bronson’s purchase, fehe and the witness had a conversation respecting Hawthornes purchase, but he could not recollect the substance or amount of it; he could not recolleet Bronson’s words, but he understood him he did not regard Hawthorn’s claim.</p> <p>Thomas Templeton stated, he understood that Hawthorn had sold to one Hunter. Trout seemed to manage Decamp’s affairs. The contract between Hawthorn and Hunter, and Trout for Decamp, was disagreed to by Hunter. Hawthorn was to get twenty dollars, for finding a purchaser, as was indorsed on the article.</p> <p>The defendant offered Jacob Trout as a witness; the plaintiff objected, but the court admitted, him and sealed a bill of exceptions.</p> <p>Jacob Trout testified, that in February, 1822 or 1823, when the deed was shown to Hawthorn, he said the title was good enough. This was in Graham’s house, and on the pavement in this town. Hawthorn said he had failed in his contract as to payment. Hawthorn advised Haywood to take the land, for the title was good, and he had failed in getting his money, and could not pay. Hawthorn \yanted Haywood to take the land from Decamp. I told Bronson the thing was dead, as Hawthorn was cast in Pittsburg. I did not tell Bronson what took place at Graham’s before, he bought. I made the first bargain with Bronson, eighteen months after the conversation at Graham’s. Haywood was at that time at Graham’s.</p> <p>William Haywood testified, that in 1819, in the fall, Hawthorn asked him if he heard of Decamp: witness said not. He said he wished he would come out and make his title; that he had a good opportunity to sell, so as to pay Decamp and have a handsome profit to himself, and wished me, if I had an opportunity, to send Decamp word. Decamp was out the next season, at my house: he said Hawthorn had a mind to give up the contract, and wished me to purchase. I agreed to meet him in Mercer; we did meet in Mercer, and Hawthorn was there also. I asked Hawthorn, if he had agreed to give up the contract. He said he had sold the land to Templeton; that he would go and see him; and, if he would give it up, there would be a compromise: he came back, and said Templeton would give it up, brought the article, and Templeton said, if Hawthorn could sell to better advantage, he was agreed he should. I told Hawthorn I understood he considered the title bad, and said if it would not suit him, it would not me. Hawthorn told the situation the title was in; that it had been sold by the Orphans’ Court of Ohio, for the heirs; that it had been sold in this county two or three times for taxes; that Decamp had redeemed it as his land by assignment from the purchasers; that he thought all these titles put together it might make a good title; if a large improvement was put on it, it might sink the land. I asked Hawthorn why he did not take it, he said he could not pay; he was agreed that I should take it on that day. Mr. Foster came to Graham’s, where we were, and produced certain papers which showed that the heirs were not of age, and that one of them was but thirteen or fourteen years of age; after we examined the papers, Hawthorn asked me if I would take the land: he had before this urged me to take it. I told him I would not, he said perhaps I was as safe not to take it — Trout was there. Being cross-examined by the plaintiff, he stated, that</p> <p>The arrangement we were attempting to make was to paya debt Hawthorn owed me, and also a debt Decamp owed me; the bargain soon broke up after the age of the heirs was discovered. Decamp offered to give me security for the title. Haiothorn did not offer or speak of giving up his title in any other way than in that arrangement with me. Hawthorn did not say the title was good, or that he would risk it after he saw the age of the heirs. '</p> <p>It was admitted the plaintiff was to be considered as having paid one hundred and fifty dollars into court.</p> <p>The plaintiff requested the court to instruct the jury, 1st that if the defendant bought from Decamp with notice of the plaintiff’s claim, he could not object to the plaintiff’s recovery, for want of the purchase money being tendered to him.</p> <p>3. That if the defendant had a knowledge of such facts and circumstances respecting plaintiff’s claim to this land as might be sufficient to put a prudent man on inquiry, the defendant could not object to the plaintiff’s recovery in this case for want of notice. The court charged the jury as follows:</p> <p>In this case both parties claim under George Decamp by purchase from him; the defendant shows a legal title for this land by deed to himself and George Shilling, made and acknowledged on the 30th of January, 1834, and recorded on the 39th of September, 1824, and before this suit was commenced.</p> <p>The plaintiff claims by an article of agreement without deed and without legal title. It is true that cases arise where the court will permit a plaintiff to recover land on an article of agreement or even on a parol contract if complied with.</p> <p>The question to decide here is, is this such a case?</p> <p>Hawthorn, the plaintiff, had an article of agreement dated the 10th of October, 1818, whereon he paid one hundred and fifty dollars. On the 1st of April, 1819, a deed was to be made, and one hundred and ten dollars paid as simultaneous acts. But no act was done by Hawthorn, showing a disposition to carry on the purchase, no more money paid, no possession taken; but, on the contrary, avowing himself to have become embarrassed by trade, and too poor to go on with the purchase of the land; talking of throwing up his bargain for the land, and wishing another to take it. Thus it remained, when Bronson, the defendant, and Shilling, bought the same land from Decamp on the 30th of January, 1824, and got the deed. The defendant went into the woods to clear, build, and make improvements. The evidence is, that Bronson, in November, 1824, when this suit was brought, had two cabin houses, the end of a barn,-and about fifteen or twenty acres of cleared land, and had his deed recorded on the 29th of September, 1824, and after this Hawthorn brings his suit; after the legal title to the land had become vested in Bronson and Shilling. He tenders one hundred and ten dollars to Decamp, some time in September, 1824, but whether before or after Bronson’s deed was recorded, does not appear.</p> <p>The question for the court and jury, to decide is, does the plaintiff come into court with such a clear and pure equity that he is entitled to recover on his article against the legal title, possession and valuable improvements? We say he cannot recover the land, but should be turned to his action against Decamp, to recover back the money with such damages as he may be entitled to, unless the jury believe there was combination between Decamp and Bronson to cheat and defraud Hawthorn by the purchase; and this question of fraud is the chief fact for the jury to decide. The plaintiff’s counsel contend there was such combination and fraud, and that there was full notice to Bronson of Hawthorn’s right to the land. You ‘will judge of the evidence on this subject connected with the law on the subject of notice.</p> <p>1. If Hawthorn had got his article of agreement recorded, that would have been full notice.</p> <p>2. If he had taken possession and made improvements, that would be notice without recording the article.</p> <p>3. Or there may be actual notice of the subsisting right to the land; but this notice is not to be made out by mere implication from circumstances, nor from rumour or report, it must be made out by clear proof of actual notice. The clear notice required by law, is actual, has a real form, to be established by direct proof, by a person authorized to give such notice. The evidence on this subject, is the deposition of J. Cunningham, esq.: he does not undertake to say when that notice was given, whether when Bronson bought, or was about buying, or when about paying some money on his contract. And also the testimony of John Hawthorn, (here the judge read his testimony.)</p> <p>There is no proof of notice to Shilling. This question of notice and of fraud is for your decision, but there is so little proof of fraud in this case, that the court do not see which party is most chargeable with it; the charge may be as strongly retorted on the plaintiff. He talked of his being embarrassed and unable to go on with the purchase; pressed Haywood to buy; doubts being suggested to him as to title, he replies, that with all the titles together, a man that was able to go on and make improvements would make the title good. He lays back; makes no tender till Bronson lias improved the land, and this improved the title according to his notion, and now wishes to take it from him, thus improved and enhanced in value. He afterwards observed to Haywood, as to the title, “ May be you are as well without it;” and still contends as bis excuse that the title of Decamp was bad. If so, why does he want now to take the land with so bad a title? unless it is that he conceives even the title is improved by Bronson’s possession and improvements. The relinquishing the notion of holding the land on account of the badness of the title, and of the plaintiff’s inability to pay for it, is a different thing from a total relinquishment of the article with Decamp, and of the plaintiff’s rights under it. We think this attempt of the plaintiff, now to take the land, and improvements and improved title from Bronson without tendering a cent to him, has very little equity in it, unless you believe there was fraud or combination to cheat Hawthorn; in that case, there may be such an equity as to entitle the plaintiff to recover. There is no proof of notice to Shilling, who appeared (by the plaintiff’s own showing) to be a purchaser for a valuable consideration. Bronson had heard of Hawthorn’s contract, and had heard it was dead, and that he need not regard it. If you believe that Shilling and Bronson made their purchase under the idea and belief that Hawthorn had given up the intention of holding the land, and that there was nothing unfair in their conduct, then, as they had the legal title, Hawthorn should have tendered the money to them (Bronson and Shilling,) and not Decamp, and he cannot recover without such tender. It is material that the court know the plaintiff has another remedy and has taken a bond as security for it. If you should find for the defendant it does not preclude Hawthorn of his right to recover back the money he paid Decamp, and interest and damages if entitled to it for breach of the article. He has that remedy on the article, and a bond with Trout as security, which he may still pursue.</p> <p>To this charge the plaintiff excepted.</p> <p>The jury gave a verdict for the defendant, and judgment was l’endered accordingly.</p> <p>The following errors were now assigned:</p> <p>1. The receiving Jacob Trout as a competent witness.</p> <p>2. The court erred in charging the jury, “ The plaintiff could not recover the land, but should be turned to his action- against Decamp, to recover back the money with such damages as he may be entitled to, unless the jury believe there was combination between Decamp and Bronson,.to cheat and defraud Hawthorn by the purchase, and this question is the chief fact for the jury to decide.”</p> <p>3. In charging the jury, that notice “is not to be made out by mere implication from circumstances, nor from rumour nor report. It must be made out by clear proof of actual notice. The clear notice required by law is actual, has a real form to be established by direct proof by a person authorized to give such notice.”</p> <p>4. In charging the jury, “There is no proof of notice to Shilling.”</p> <p>5. In charging the jury, that “We .think this attempt of the plaintiff now tb take the land, and improvements, and improved title from Bronson, without tendering a cent to him, has very little equity in it, unless you believe there was fraud or combination to cheat Haiothorn, in that case there may be such an equity as to entitle the plaintiff to recover.”</p> <p>5. In charging the jury, “ If you believe that Bronson and Shelling made their purchase under the idea and belief that Hawthorn had given up the intention of holding the land, and that there was nothing unfair in their conduct then, as they had the legal title, Hawthorn should have tendered' the money to them (Bronson and Shelling,) and not to Decamp, and he cannot recover without such tender.”</p> <p>7. In charging, “ That it was material that the court knew the plaintiff had another remedy, and had taken a bond as security for it. If you should find for the defendant, it does not preclude Hawthorn of his right to recover back the money he paid Decamp, and interest, and damages, if entitled to it, for breach of the article.”</p> <p>8. The court did not answer the first question proposed by the plaintiff’s counsel.</p> <p>9. The court did not answer the second question proposed by the plaintiff’s counsel.</p>

<p>APPEAL.</p> <p>Appeal from the decision of Huston, J., sitting in the Circuit Court of Allegheny county, in which a verdict and judgment were rendered for the defendants.</p>

<p>A former verdict and judgment for the plaintiff in replevin, on the issue of no rent in arrear, is a bar to an action for use and occupation, for the same rent for which distress was made, if it appear by the pleadings, that a certain rent was reserved, and that the distress was for the same rent now claimed, whether the former judgment be pleaded as an estoppel, or given in evidence on the general issue.</p>

<p>The commissioners of a county have power to take and hold lands for the use of the county, where bought in to secure a debt or mortgaged for that purpose.</p> <p>How far they are a corporation.</p> <p>A purchaser at a judicial sale of the land of A., has a right to show, in ejectment for a share of the land by A, who was the former owner of that share, that A had for a long time left the plaintiff in possession of the whole, and had repeatedly declared, that he had sold his share to A: that he had returned other land to the assessor, and not this, and made other declarations, proving that he had parted with his title to A.: and if A alleges the purchase money due by A. not to be paid, he is bound to show it.</p> <p>The books of the commissioners, showing the property to have been assessed as A’s., are evidence, in connexion with such declarations, against A</p>

<p>IN ERROR.</p> <p>In the Court of Common Pleas of Butler county, two suits were brought to January Term, 1821, by Robert Lemmon, the plaintiff below', and defendant in error, against William Purviance, in debt, to recover the amount of two single bills given by the defendant to the plaintiff; one for one hundred dollars, and the other for fifty dollars. These two actions were consolidated by the agreement of the parties, and the following case was stated for the opinion of the court, in the nature of a special ierdict.</p> <p>The defendant, on the 10th of August, 1814, purchased of the plaintiff, by an article of bargain and sale, lot No. 9, in the borough of Butler: at the same time, the defendant gave to the plaintiff his notes for the purchase money of the said lot, which were all paid or judgments obtained upon them, excepting the two notes, which these suits were instituted to recover. A judgment was obtained in the said court, at November Term, 1815, Isaac Bean v. Purviance, for one hundred and fifty-seven dollars and thirty-, three cents; a fieri facias issued thereon to February Term, 1816, a levy was made on the said lot, inquisition held, and condemnation. A venditioni exponas issued to August Term, 1818, by virtue of which the lot was sold on' the second of September, ISIS, to James Hill, for one hundred dollars, and a deed was executed to him by the sheriff, and duly acknowledged. James Hill, the purchaser at sheriff’s sale, leased the said lot to John Dunbar. Robert Lemmon the plaintiff, brought an ejectment to July Term, 1819, against John Dunbar the tenant, for the recovery of the possession, or the residue of the purchase money of the said lot. On the 25th of April, 1820, this entry was made on the record of the ejectment; “ settled and judgment for costs.” On the 2d of October, 1820, James Hill, in consideration of one hundred dollars, conveyed all his title in the said lot to Robert Lemmon, the plaintiff. The agreement between Lemmon and Hill, as to the purchase of Hill’s title, was made before the entry of judgment in ejectment, but was not reduced to writing.</p> <p>In the court below, a verdict and judgment were rendered in favour of the plaintiff.</p>

IN ERROR. Error to the Court of Common Pleas of Fayette county. This was a scire facias sued out by the plaintiffs in error, Randolph Dearth and James Davis, against David Laughlin, bail of Adam Laughlin, upon a recognizance before a justice of the peace.

<p>in error.</p> <p>Error to the Court of Common Pleas of Mercer county.</p> <p>Ejectment brought by George Lodge and others, heirs of Benjamin Lodge, deceased, the plaintiffs below and plaintiffs in error, for two hundred and fifty acres of land in Salem township.</p> <p>The plaintiffs gave in evidence, on the trial, William Barker’s application for four hundred acres and patent, dated the 25th of March, 1820, to John Walker and John Hummel for the same:— record of the Court of Common Pleas of Mercer county, John G. Fry and others, administrators of J. M. Fry, deceased, against John Walker, surviving partner of Brobst and Lodge, to February 7th, 1817, and judgment for five thousand dollars: — record of the Supreme Court of Pennsylvania in same cause, showing that the said judgment was reversed on the 25th of September, 1821:— record of the-Court of Common Pleas of Mercer county, Same v. Same. Venditioni exponas to.- May Term, 1818, returned two hundred and fifty acres sold to Jacob Fry for fifty dollars.</p> <p>The plaintiffs then offered in evidence as follows: — record of the Court of Common Pleas of Mercer county, showing an entry by the prothonotary, dated the 24th of November, 181S, that the sheriff had acknowledged a deed to Jacob Fry for the said two hundred and fifty acres. The defendant objected. By the court__ The plaintiffs do not offer to follow this with the sheriff’s deed, nor to show its loss, nor any attempt to procure it. This entry by the prothonotary is secondary evidence, and is therefore rejected. To which opinion of the court the plaintiffs’ counsel excepted.</p> <p>The plaintiffs further offer to give in evidence as follows: — February, 1823, warrant of restitution issued by the. Court of Common Pleas of Mercer county, in pursuance of the decree of the Supreme Court in the aforesaid suit of Fry and others, executors of Fry, deceased, v. John Walker and others, to which the defendant objected: whereupon the plaintiffs offered to'follow the said testimony, by showing a writ of restitution, No. 43, August Term, 1823 — W. Scott and J. Christy, executors of John Walker, deceased, surviving partner of J. Brobst and B. Lodge, v. John George Fry and John Michael Fry, administrators of John Michael Fry, deceased, upon which the land for which this ejectr ment was brought, is levied on and condemned. Also, a venditioni exponas in same case, No. 39, November, 1823, showing the sale of the same land to Joseph, Lyons, who purchased in trust for the heirs of Benjamin Lodge, and a deed from A. Bunn, esq., sheriff to Joseph Lyons for the said land; and to follow it by testimony, that this land that appears by the record, (the rejected record,) to have been purchased by Jacob Fry, was paid for to the sheriff by the administrators of John Michael Fry, deceased. To which evidence the defendant objected. The court rejected the évidence, and by request of the plaintiffs’ counsel sealed a second bill of exceptions.</p> <p>On this record, the counsel of the plaintiffs in error assigned the following errors:—</p> <p>1st. The court below erred, in not permitting the record of the Court of Common Pleas of Mercer county, showing an entry by the prothonotary, that the sheriff had acknowledged a deed to Jacob Fry for the two hundred and fifty acres, the land in dispute, to be read in evidence to the jury.</p> <p>2d. The court below erred; in not permitting the warrant of restitution, No. 43, August Term, 1823, to be read in eyidence to the jury,'and in rejecting the evidence offered.</p>

in error. A writ of replevin was issued out of the Court of Common Pleas of Somerset county, the 8th of Jlpril, 1822, to May Term of that year, by James Boyd, the defendant in error, against John Kennedy for. a gray mare. Kennedy, the defendant below, gave bail to the sheriff, and retained the possession of the mare.' In 1823, pending this action, Kennedy died.

<p>IN ERROR.</p> <p>Writ of error to the special Court of Common Pleas of Allegheny county, which was argued by M‘Donald, for the plaintiffs in error, and Burke, for the defendant in error.</p>

<p>A prisoner, who stands indicted for aiding and abetting another to commit murder, and has not been tried at the second term, is not entitled to his discharge on habeas corfius, if the principal has absconded, and proceedings to outlawry against the principal were commenced without delay, but there had not been time to finish them.</p>

IN ERROR. Error to the Court of Common Pleas of Allegheny county, in a suit brought by William L. Jaudon, the defendant in error and plaintiff below, against Henry Holdship and Jonathan H. Lamb-din, the plaintiffs in error.

<p>in error. •</p> <p>In the Court of Common Pleas of Westmoreland county, the plaintiffs in error, who were plaintiffs'below, brought this action of ejectment for land in Derry township, against John JBouzer, the defendant in error, and the defendant below; and the following case was stated for the opinion of the court, to be considered in the nature of a special verdict.</p> <p>Samuel Parr, the father of the plaintiffs, died in the year 1812, seised in fee simple of the premises, having first made his last will and testament, dated the 1st of September, 1812, by which he devised and bequeathed, as follows: “ As to such worldly goods as it has pleased God to bless me with, I will and dispose of in the following manner: First, I will and bequeath to my beloved wife Sarah, forty dollars per annum, during her natural life, to be paid in the manner directed below. Secondly, I will and bequeath to my son Benjamin, the house and lot wherein he now lives, together with a point piece of ground behind, and adjoining the same; also, one moiety or undivided half part of a tract of land in Derry township, lying and adjoining the Loyalhanning creek, commonly called the “ Point Place,” to him, his heirs, and assigns for ever: Thirdly, I will and bequeath to my son William, the house and lot wherein I now live, together with the lot I got from Joshua Beaty, to him, his heirs, and assigns for ever: but it is not to be sold by him without first obtaining the consent of my executors hereinafter named, or either of them, who may longest survive: Fourthly, I will and bequeath to my daughter Elizabeth, twenty dollars, to be paid as directed below. Also to her son Samuel Parr, my grandson, two hundred dollars, to be paid for his use when he shall arrive at ten years of age, at the discretion of my executors, hereinafter named: Fifthly, I will and bequeath to my daughters Polly and Deborah, one moiety or undivided half part of the tract of land described above, commonly called the “ Point Place,” share and share alike, to them and their heirs and assigns for ever. And, it is further my will and pleasure, that all my estate, real, personal, and mixed, not already bequeathed, be sold by my executors, immediately after my decease, and they are hereby authorized to convey a good and sufficient title to that part of my real estate which may remain after my decease, to be sold by them, and the proceeds thereof shall be applied at the discretion of my executors, to pay my funeral and other necessary expenses. The residue, if any, to be applied to the payment of the legacies bequeathed as abovedo my daughter Elizabeth and her son, and my grandson, Samuel Parr: that in case the sums mentioned immediately above should prove insufficient to discharge the legacies bequeathed to my daughter Elizabeth and her son, Samuel Parr, then, and in such case, my two sons, Benjamin and William, and my two daughters, Polly and Deborah, shall each of them refund so much out of the estate bequeathed to them respectively, as in the opinions of my executors shall appear reasonable and just for discharging the above mentioned legacies; and it is further my will and pleasure, that my son Benjamin pay annually to my wife Sarah, twenty-two dollars out of the estate bequeathed to him; also that my son William pay annually to my wife Sarah ten dollars out of the estate bequeathed to him; also, that my daughters Polly and Deborah, pay annually to my wife Sarah eight dollars out of the estate bequeathed to them; and these three several payments shall continue during the natural life of my wife Sarah, and these said sums respectively shall be a lien on the lands and tenements bequeathed to my sons Benjamin and William, and my daughters Polly and Deborah, during the natural life of my wife Sarah. And it is further my will and pleasure, that my son Benjamin, after my decease, pay all my just debts out of the property bequeathed to him, except what are already provided for above. And in case he neglect or refuse so to do, my executors are hereby authorized to compel the same. And whereas, I hold on my son Benjamin, several obligations which my executors are hereby authorized to cancel and make void upon condition of his paying the debts of the estate as mentioned above. And further it is my will and pleasure, that my executors imme(diately after my decease collect all debts due me, if any, and settle the estate at as early a period as possible. And I do nominate, constitute and appoint, Isaac Parr, sen., of Derry township and William Moor, and John Kirkpatrick, of Salem township, my whole and only executors of this my last will and testament. In testimony, &c.</p> <p>The said Samuel Parr also died, seised in fee simple of all the other lands, houses, and lots in the said will mentioned.- Mary Parr and Deborah Parr, the plaintiffs, are daughters of the said Samuel Parr, and the same persons to whom he devised one moiety, or half part of the plantation or tract of land in Derry township, the same land for which this ejectment is brought.</p> <p>Benjamim Parr, one of the sons and devisees of Samuel Parr, immediately after the decease of Samuel, and probate of his will, entered into the possession of the lands, houses, and lots, devised to him by the said will, by virtue of the devise, and under the will, and continued the possession thereof, until the same were sold as hereinafter stated by the sheriff. The executors of Samuel settled their administration account, and it was passed on the 23d of August, 1819, in which a balance was due the said executors of five dollars and three cents. The debts due by Benjamin to Samuel in his lifetime, and which are mentioned in the said will, were not contained in the said account, and were never paid, nor any part thereof, by Benjamin to the executors, nor demanded by them, but the obligations for the payment thereof were cancelled by the executors. The interest of Benjamin in the tract of land in Derry township, devised to him by the will of Samuel, was §pld by the sheriff of Westmoreland county, in pursuance of executions, numbers 63 and 64, to February Term, 1819, on judgments against the said Benjamin Parr, in November, \3\1, and February, 1S18, and purchased by James Lemon at the sheriff’s sale for seven hundred and fifty-five dollars, and a deed made and duly acknowledged for the same by the said sheriff to the same James Lemon, on the-day of-, in the same year. The said house and lot in New Alexandria, and land thereunto adjoining, devised to Benjamin, by the said will of the said Samuel, was sold by the said sheriff in pursuance of execution, number 62, February Term, 1819, to the said James Lemon, for eight hundred and sixty-five dollars, upon a judgment against the said Benjamin Parr, number 153, November 1817, for which a deed was made to the said James Lemon, by the said sheriff, and duly acknowledged on the-day of -¡-, 1819. In pursuance of the said sale by the said sheriff, and purchase by the said James Lemon, the said James Lemon entered into and took possession forthwith according to law of the said lands, lots, and buildings, with the appurtenances, having paid the whole purchase money to the said sheriff before receiving the deed or taking possession. Benjamin W. Parr, mentioned in the said judgments and executions, is the same person mentioned as Benjamin Parr in the said will of Samuel Parr, and in this statement, The surplus monies arising from the said sales beyond the debt, interest, and costs in the said execution, were appropriated and paid by the sheriff to other judgments against the said Benjamin W. Parr in Westmoreland county. Joseph Shoemaker and John Townsend, executors of John Townsend, deceased, commenced a suit against Isaac Parr, and John Kirkpatrick, executors of the said Samuel Parr, deceased, number 59, May, 1817, and obtained judgment thereon on the 18th of August, 1817, which was liquidated on the 19th of November, 1819, and issued a fieri facias, number 16, February, 1820, by virtue of which the tract of land in Derry township, mentioned in said, will was levied on and by virtue of a pluries venditioni exponas, number 94, February, IS22, was sold to James Lemon, by the sheriff of the said county, and duly conveyed for the price of two hundred and eighty dollars and one cent, and the deed duly acknowledged, and the purchase money paid to the said sheriff, on the-day of-, in the same year.</p> <p>The plaintiffs by their guardians, they being minors, forthwith after the decease of the said Samuel Parr, took possession of the premises mentioned in the said ejectment, and continued the same until the said purchase by the said James Lemon, under the said last mentioned execution, number 94, February Term, 1822, after which, and before the bringing of this suit, James Lemon, without their consent, entered into possession thereof, and put the defendant in possession thereof under him as his tenant. The said defendant is admitted to be in possession of the premises in the said declaration mentioned at this time, and when the said ejectment was brought.</p> <p>The President of the court below filed of record the following opinion:</p> <p>“The land which the plaintiffs claim was devised to them by their father, Samuel Parr, and afterwards sold by the sheriff on a judgment for debts contracted by him in his lifetime. The will contains the following clause: “It is further my will and pleasure, that my son Benjamin, (to whom by a former claim one half of the tract had been devised by his father,) after my decease pay all my just debts out of the property bequeathed to him, except what are already provided for above, and in case he neglect or refuse so to do, mj' executors are hereby authorized to compel the same. And, whereas, I hold on mj' son Benjamin several obligations which my executors are hereby authorized to cancel and make void .upon condition of his paying the debts of the estate as mentioned above.” It is admitted that those debts of the testator were not paid by Benjamin, nor demanded of him, and that his obligations were cancelled by the executors. What the amount of those obligations was, or whether it or any part of it could have been recovered from him does not appear. But, independent of these obligations, it does not appear that the whole of the assets which came into the executors’ hands have been duly administered, and a ba* lance found due to them on the settlement of their account. The whole of the real estate of which the testator died seised, whether devised or not, was subject to the payment of his just debts. But it is contended, that the purchaser at the sheriff’s sale took the premises in question, subject to the payment of those very debts, and thus, that the interest of the plaintiffs under the devise ought not to be affected by the sheriff’s sale. I have not been able to discover the least analogy between the cases cited in support of this idea, and the present case. The one half of the land was sold on judgments against the testator in his lifetime. The whole of it was then liable to be sold on those judgments, if insufficient to pay those liens within seven years. It may have been irregular to sell only one half, and if application had been made in due time, the levy and sale might have been set aside. It may be presumed that the object was to save, if possible, the other half devised to the plaintiffs, with the hope of raising funds either from Benjamin, or by other means, to discharge the debts which be ought to have paid. But this object having failed, and a judgment having been rendered, in an action of covenant, against the executors of Benjamin Parr, and there being no assets in their hands to discharge it, the sale of the other half became, in a manner, inevitable. It might have been, perhaps, avoided by the plaintiffs paying it pro interesse suo. It may be regretted, indeed, that by the comparative smallness of the price for the half of the land last sold, or by some neglect on the part of the executors, they have suffered an injury. But, be the case as it may in that respect, the purchaser is entitled to be considered as a fair purchaser, and whether he had notice or not of the contents of the will, his title under the sheriff’s deeds cannot be affected by any lien, (which, by the bye, I consider to be only supposititious,) created by it.</p>

<p>IN ERROR.</p> <p>Feigned issue in the name of John Kerns as plaintiff, and M.Soxman and C. Soxman defendants, from the Register’s Court of Westmoreland county, transmitted to the Court of Common Pleas for trial, where a case was stated for the opinion of the Court of Common Pleas, to be considered in nature of a special verdict.</p> <p>It was admitted, that the writing produced, purporting to be the last will and testament of Christian Soxman, deceased, was in the handwriting of John Barnet, Esq., deceased, and that the name John Barnet, written as a subscribing witness to the same, was the proper handwriting of the said John Barnet, deceased; and that he subscribed the same as a witness, in due form of law. That Sophia Soxman, now Sophia Kiser, a devisee named in said writing, subscribed the same instrument of writing as a witness. That afterwards, and before the statement of this case, the said Sophia and John Kiser, her husband, executed and acknowledged a transfer of all their right under the said devise, to the aforesaid John Kerns, which transfer was duly recorded: and that the said John Kerns afterwards, and before the statement of this case, executed to said John Kiser, a release of all actions, &c. If, upon this statement of facts the court should be of opinion, that Sophia Soxman, now Sophia Kiser, is a witness legally competent to be examined, to prove the execution of the said writing as the will of the said Christian Soxman, deceased, in the said court on a trial of the said feigned issue, after the said transfer and release, and that she was a legal witness to the said execution, and subscribed the said instrument as a legal witness, then it is agreed that the said instrument of writing, is the last will and testament of the said Christian Soxman, deceased, and judgment is to be entered for the plaintiff. But if the court should be of opinion, that the said Sophia Soxman, is not a witness legally competent to be examined to prove the execution of the said will, by the said Christian Soxman, deceased, although she was a witness to the said execution, and subscribed the same as a witness; then, it is agreed that the said writing, is not the last will and testament of the said Christian Soxman, deceased, and that judgment be entered for the defendants.</p> <p>Judgment for the defendants by the court below.</p>

In obedience to a rule to show cause why a mandamus should not issue to compel the respondents to pay an account for keeping certain convicts in the penitentiary at Philadelphia, they showed for cause that the charges were unreasonable, and that the account was disputed.

IN ERROR. This was a writ of error to the Court of Common Pleas of Allegheny county; by the return to which it appeared, that the plaintiff had obtained a judgment against the defendant, who was permitted to set off against it a judgment obtained against the plaintiff and two others, by a person who assigned to the defendant a part of it, sufficient to extinguish the plaintiff’s judgment.

IN ERROR. • The plaintiff in error, being indicted and convicted of malicious mischief in the Court of Quarter Sessions of-county, sued out this writ of error, and obtained a special allocatur before sentence was passed: for which reason Ross now moved to quash the writ.

<p>IN ERROR.</p> <p>The suit below was a scire facias to January Term, 1822, issued out of the Court of Common Pleas of Allegheny county, in the name of Thomas Whitesides, as plaintiff, against Mary Robeson, late Mary Bradford, James Patterson, and Peter Mowry, administrators of Dr. Nathaniel Bradford, who was bound with Lazarus Stewart, who survived N. Bradford. This scire facias was to revive a judgment entered up in 1815, on a bond and warrant for one thousand dollars, in the name of Thomas White-sides, against Nathaniel Bradford and Lazarus Stewart. After several rules and pleas, it was agreed by the parties in May, 1826, that the merits of the original judgment should be tried without regard to the form of pleading. When the cause was ordered for trial, the defendants moved the court for leave to enter the plea of ■plene administravit and no assets; which the court refused, and the defendants excepted.</p> <p>The counsel of the defendants claimed the right of mating the concluding address to the jury, but the court decided that he should first address the jury, and the plaintiff’s counsel should conclude; which direction the defendants excepted to.</p> <p>The original bond on which the judgment was confessed in 1815, was dated the 4th of April, 1815, and was in the sum of one thousand dollars, conditioned for the extinguishment of incumbrances on certain property, th'en sold by Bradford to Whitesides, within nine months from its date.</p> <p>The court charged the jury, that the sum of one thousand dollars, mentioned in the bond to Whitesides, was not to be considered in the nature of a penalty, but as the stipulated damages, and that upon the failure of Bradford to answer or extinguish the incumbrances mentioned in the condition of the said bond, within nine mouths from the date thereof, the bond became absolute, and the plaintiff was thereupon entitled t.o recover the whole amount, as damages agreed upon and stipulated between the parties. That the incumbrances not having been paid or extinguished at the time, their extinguishment by Nathaniel Bradford, or his representatives since, would not relieve the defendant from the payment of the sum mentioned in the bond, and the plaintiff was entitled to a verdict for one thousand dollars, with interest from the time the bond became absolute; to which opinion the defendant excepted.</p> <p>The jury found a verdict in favour of the plaintiff for the sum of one thousand six hundred and thirty-four dollars and sixty-seven cents, on which judgment was entered.</p>

in error. Writ of error to the Court of Common Pleas of Westmoreland county.

IN ERROR. Error to the Court of Common Pleas, of Warren county, in which the plaintiff in error was plaintiff below. The action was assumpsit by Russel Packer, for the use of N. Crooks, against Jacob Hook, on a promissory note for the delivery of thirteen thousand feet of boards. Pleas, non assumpsit, payment, want of consideration, defalcation, set-off with leave to give special matters as evidence. Replication, non solvit, valuable consideration, no set-off, and issues.

<p>Two administrators sold land of the intestate to B., under an order of the Orphans’ Court, for payments of dehts, &c., and took a mortgage in their names-as administrators for the unpaid portion of the purchase money. B. afterwards sold about one third of the land to Y,, who made improvements. He then sold the residue of the land to (?., and took from him tyro bonds, ' one to the administrators for the purchase money due them, and the other to himself for a further sum, with a mortgage on the portion thus last sold to secure these bonds. B. afterwards assigned the bond in favour of himself to P. G. declining to pay interest to the administrator on account of the first mortgage, B. prevailed on one of the administrators to enter satisfaction of the mortgage to the administrators on the margin of the record, (reciting an order to that effect by the Orphans’ Court, which had not been made,) and at the same time, the guardian of the minor children of the intestate acknowledged on the margin of the record the receipt of the last mortgage as sufficient security for the debt.from B. After these transactions P. assigned his bond to another: the two administrators received some interest of G. and brought suit against him on the mortgage for other interest due.> Suit was, however, afterwards brought on the first mortgage in the name of the administrators, for the use of the minor children. The court were equally divided on the question, whether the plaintiffs were entitled to recover, and the judgment bf the court below in favour of the plaintiff's was affirmed.</p>

IN ERROR. Hultz, the plaintiff in error, was defendant below. He was sued in debt for rent on an indenture of lease between Wright and Wil-, let, the plaintiffs below, lessors, and a certain John Thompson, lessee, of a tract of land at a certain annual rent, for nine years, ending the 1st of April, 1822. This suit was brought for the rent of the last year against Hultz, who had come upon the land as purchaser from John Thompson, the lessee.

in error’. Writ of error to the Court of Common Pleas of Fayette county. The plaintiff in error was plaintiff below in this amicable action, to try whether the Philadelphia Bank was entitled, out of the money raised by the sale of the real estate of John Miller, to be paid the amount of an alleged judgment in favour of the bank, against. Miller, No. 23S, December Term, 1821, and the following case was stated, to be considered in nature of a special verdict.

IN ERROR. This was a writ of error to the Court of Common Pleas of Mercer county, in a suit brought by Jacob Trout, the plaintiff below, and the defendant in error, against Thomas Means, the plaintiff in error. The defendant arbitrated the case, and an award was rendered in favour of the plaintiff, for forty-seven dollars and eighty-two cents.

IN ERROR. Error to the Court of Common Pleas of Mercer county. In the court below Cross declared against Thompson in debt on bond. The defendant pleaded payment with leave. The cause went to trial, and a verdict was rendered for the plaintiff for fifty-four dollars and ninety-eight cents. The error now assigned was, that there was no replication. The counsel, on opening the case, was stopped by the court.

<p>¿VI., on the 17th of February, 1813, by articles of agreement, stated he had sold to I, a tract of land, payable three hundred dollars in hand, one hundred dollars in thirty days, four hundred dollars on the 2d of April, 1815, and four hundred dollars on the 1st of April, 1816; he was to give possession on the 2d of April, 1815, M. to enjoy the right of. redemption at any time before the 2d of April, 1815, and possession till then. On the same day, he made a deed to I., with a clause that if M., his executors, &c. (the word assigns being struck out,) should pay or cause to be paid to I., four hundred dollars with interest, &c., on the 1st of April, 1815, then the bargain and sale to be void. On the 17th of February, 1814, M., sold to G., who tendered I. the four hundred dollars, before and on the 1st of April, 1815: held,</p> <p>1. That this was a mortgage from M. to I.</p> <p>2. _ The restriction of the right of redemption to the mortgagee personally, was inconsistent with the nature of a mortgage and void.</p> <p>.3. The tender by G., was good, though he did not state in what capacity he tendered, whether as purchaser or of M.</p> <p>Where there is no variance or contradiction in the testimony, but it is all consistent and express as to the facts, if the judge in charging the jury express the legal result of the whole evidence, he is not to be considered as taking the facts from the jury.</p>

<p>The suit on a sheriff’s bond must be a separate one by each individual, who has sustained injury: one person cannot recover for himself, and also for another, in whose process he had no interest.</p> <p>The authority of an attorney at law is more extensive in Pennsylvania, than in other places; and does not cease with the judgment. The directions to the sheriff of the plaintiff’s attorney as to the mode and times of sale under an execution, are binding on the sheriff and a full authority, if obeyed in good faith.</p> <p>An attorney is not liable, if he acts honestly, and to the best of his ability.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Fayette county.</p>

<p>If, on an appeal from the judgment of a justice of the peace in favour of the plaintiff, the case is arbitrated, and an award is made in favour of the plaintiff for the same sum, on which an appeal takes place, and, on the trial, the plaintiff is nonsuited, the defendant having given no evidence, the defendant is entitled to costs.</p>

<p>The landlord’s right to distrain at the end of the year, is not affected by an agreement in the lease that he may re-enter, if the rent be unpaid, at a stipulated period after the expiration of the year.</p> <p>It seems, trover cannot be joined with an action on the act of assembly to recover double damages, for distress and sale, where no rent is in arj-ear and due.</p> <p>In such action on the act of assembly, it is sufficient if the writ refers to the act of assembly, though it do not conclude against the form and effect of the act of assembly.</p>

<p>The plaintiff cannot, by joining in one ejectment two defendants who hold by separate titles, read in evidence depositions taken in a former suit, in which . one only of these defendants was party; especially if the land in controversy in the different suits is not the same.</p> <p>The heirs of a vendor are, generally speaking, bound to convey land sold by the ancestor, and paid for; but an improvement right rests on peculiar principles; it may have been abandoned by the vendee, or the lines left unsettled, and after a lapse of thirty years or more, the heirs would not be ¿able to the vendee.</p> <p>Notice of title by one out of possession, to the person in possession, does not prevent the running of the statute of limitations.</p> <p>The statute of limitations does not apply in cases of express trust, where the right of the cestui que trust and trustee makes but one title; but it applies even there, if the trustee openly denies the right of the cestui que trust, •and it always applies to cases of implied or constructive trusts.</p>

<p>After the plaintiff has had a commission executed, the defendant may send a new commission, to examine the same witnesses on matter not inquired of by the plaintiff'’s interrogatories.</p> <p>It seems objections to such commission, should be made before trial.</p> <p>Words spoken of plaintiff, in the character of the judge, are actionable without colloquium or innuendo.</p>

At the August Term of the Circuit Court for the county of Alolegheny, a case involving facts and principles of much importance the city of Pittburg, and the public was tried. It was an indietment against the defendant for a nuisance, in obstructing one of the principal streets, (Water Street,) by a brick ferry house, a stable. and a stone wharf, situated at and near the west side of Liberty Street.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Mams county.</p> <p>On a feigned issue directed by the Register’s Court to try the validity of a writing, purporting to be the last will of Peter Moritz, deceased, the witnesses to support the will deposed as follows:</p> <p>Peter Mark “ subscribed the will, as a witness, at the request of the testator; saw J. Young sign it also as a witness. He ( Young) left this country a year ago (1834,) for Ohio. William Hosack also signed it as a witness; all at the request and in the presence of Peter Moritz, deceased. He (the testator) died last summer, (1824.) He was of sound mind when he executed the paper. Witnesses signed. Witness wrote it, and took it down from the old man’s dictation. Witness is brother of Mrs. Moritz.^</p> <p>“ Will read to the jury, dated the 25lh oí'December, 1817. William Hosack (another subscribing witness) proved the execulion of the will as his (testator’s) deliberate act, and in his sound mind. He said nothing, but simply gave his consent to the execution of it.' Moritz, died of a cancer. It began many years before his death, but not bad till two years before his death.”</p> <p>The record proceeded as follows:</p> <p>“For the defendant. Daniel Knouse called. Defendant offers to prove that about a couple of months before the will was made, and just after the marriage of Jacob Brough, (the defendant) and Polly, daughter of Peter Moritz, that her mother (testator’s wife) was dissatisfied with the marriage, and in presence of the witness, told the old man he should now make a will, and that Polly should not be left any thing, and that the old man said there was time enough. But the old woman insisted it should then be done, and that they (Brough and wife) should be left nothing. That the old man was opposed to the arrangement so proposed by his wife. That the old woman exercised a great control over the old man at all times, was a woman of high temper, managed the whole concerns of the establishment in doors and out of doors, and that he was a man of very easy disposition. To be followed with declarations of the old man, both before and after the date of the paper read, that he had always intended a different disposition of his property, and also that the will was different from his wish. That he said he was importuned by his wife, and that the will was made through such importunity, and fear of violence from his wife.”</p> <p>“ Objected to — That such declarations of Peter Moritz while in the full exercise of his mind cannot be given in evidence, to establish duress, coercion, fraud, or importunity at the time of making the will. They were at a different time and place, &c. They are no evidence of the existence of facts, nor of a revocation of the will.”</p> <p>“ Objection overruled by the court, and exception by plaintiff’s counsel.”</p> <p>“It was stated by the witnesses, that Mrs .Moritz was a high tempered woman, had considerable control over her husband, managed affairs in the house and out. When witness had borrowed a horse from husband, and was to get it next morning, the old woman would not let him have it, said they wanted it that day. The old man said he was sorry for the disappointment; that the horse would stand in the stable all day, but his wife must have her way, and witness must do without. . Old man said he had not been opposed to the marriage of Polly to Brough. He esteemed her as much as ever, and like his other children.”</p> <p>“ That the old man drank hard by times, and was occasionally unfit for business; was a man of easy mind and temper. Before the execution of the will, old man had often said he intended to divide his property equally among his children, giving Polly the old place, as Peter was not fond of keeping tavern. He was well known to the witnesses, was of sound mind up to' the time of his death, except when under the influence of drink.”</p> <p>“ The defendant offers to prove that Peter Moritz the elder, repeatedly said, after the making the will, from the time of making the same till near his death in 1824, that the will was not made according to his wish, that he was plagued by his wife to make it as he did, and that he was teased by her importunity to make it, so as to cut out his daughter Polly, and that he had made it so to get clear of her importunity.”</p> <p>“ Objected to, and objection overruled." Per Curiam. Declarations accompanying the acts inquiring into, are evidence to explain their character. The will is incomplete' till the death of the testator, and the continuance of duress or control, and the omission to revoke, are all parts of the res gestee, and on this ground the evidence offered we think is admissible, as well as on the ground of ascertaining the state of his mind, and accounting for the omission to revoke; and on the ground that they were against no one’s interest at the time they were made. And see also the case of Rambler v. Tryon, 7 Serg. & Rawle, 95.”</p> <p>Exception by plaintiff’s counsel.</p> <p>The cause was argued in this court by Stevens for the plaintiff in error, lie cited, Jackson v. Kniffen, 2 Johns. Rep. 31, and by Dunlop for defendant in error, who cited and relied upon 3 Swinb. part 7th, Sect. 1, Ib. Sect. 2, Ib., Sect. 18, and Nelson v. Oldfield, 2 Vern. 76. 7 Serg. & Rawle, 95.</p>

IN ERROR. Error to the Court of Common Pleas of Franklin county. The plaintiff in error, who was plaintiff below, John Barnet, was administrator de bonis non oí.Sarah Price, deceased: the defendant, David Washebaugh, was administrator cum testamento annexo of William Scott, deceased, with notice to William Scott and Margaret Maris, terre-tenants. The court below rendered judgment in favour of the defendant.

IN ERROR. Error to the Court of Common Pleas of Cumberland county, in a suit brought by John Junkins, plaintiff below and defendant in error, against David Walters, plaintiff in error.

<p>If there be a judgment against four, binding their real estate, and one ches, a scire facias may issue against the survivors, and the executors of the deceased: and, in that case, terre-tenants may come in and defend.</p> <p>The administrator with the will annexed may recover from the administrators pendente lite appointed on the entry of a caveat against the will, the surplus in their hands arising from the sale of the testator’s real estate by execution.</p> <p>In such suit, the defendants cannot contest the validity of the will. Administrators pendente lite, not using the money in their hands, are not liable for interest: but if they purchase the testator’s land at a sheriff’s sale, give a receipt for the money, and enjoy the property, they are bound to pay interest.</p> <p>There is no particular form for an executor’s renunciation: it may be by letter, showing such intention, provided it be filed in the proper office.</p> <p>On appeal from the Circuit Court, the court will not set aside averdict for mere misprison of pleading; it must appear injustice has been done, or some plain mistake been committed.</p>

<p>in error;</p> <p>Error to the Court of Common Pleas of Cumberland county; which was argued by Penrose, for the plaintiff in error, and Watts, contra.</p>

IN ERROR. Error to the Court of Common Pleas,of Cumberland county, in which the plaintiff in error, George Bollinger, for the use of James Todd and others, executors of Mary Patterson, deceased, was plaintiff below, and George Eckert defendant.

IN ERROR. This was a writ of error to the Court of Common Pleas of Luzerne county. The suit was an ejectment brought by John Hollenback, the defendant in error and plaintiff below, against George Chahoon, Ziba Davenport, Sarah M‘Coy, and James M'Coy, the plaintiffs in error and defendants below, to recover about half an acre of land in the said county, in which a verdict and judgment*were rendered in the court below for the plaintiff.