Volume 17 — Pennsylvania State Reports

<p>. The Chancery powers of the Supreme Court as to supervising and controlling the proceedings of corporations, other than those of a municipal character, by the act of 1836, if not restricted to the city and county of Philadelphia, are not more extensive in any other part of the State than those of a Court of Common Pleas; and therefore the Supreme Court, when sitting at Harrisburg, cannot supervise and control the proceedings of the Pennsylvania Railroad Company beyond the limits of the county of Dauphin.</p>

<p>This was an appeal by defendant from tbe settlement of an account by tbe Auditor General and State Treasurer; appeal entered June 20, 1846. Tbe defendant bad been treasurer of Northampton County. He forwarded, in December, 1835, to the Auditor General a statement or account of State taxes on real and personal property, per Act of 28th March, 1831.</p> <p>This account stated $8281.59 as tbe aggregate amount received for taxes by tbe accountant, and stated credits amounting to $5885.16. From these items tbe balance in favour of tbe Commonwealth was $2396.43.</p> <p>Tbe account of defendant was not acted on by tbe Auditor General and State Treasurer till 1846. It was settled by them, and on tbe 1st May, 1846, a balance was struck by adding to tbe before stated balance of $2396.43, ten years’ interest, stated at 1437.85, making an aggregate balance against tbe accountant of $3834.28.</p> <p>From this settlement tbe defendant appealed, and tbe objections specified by tbe attorney of tbe accountant were;</p> <p>1. That tbe account was settled by tbe Auditor General, without any action exhibited to him on said account by tbe County Auditors of Northampton county.</p> <p>2. That tbe account was settled after a lapse of more than ten years without notice.</p> <p>3. That it purports to be a settlement merely of tbe account of taxes on real and personal estate, and not of tbe entire accounts of tbe appellant as Treasurer.</p> <p>4. That tbe Auditor General has not credited the appellant with various sums of money, paid into tbe Treasury on and previous to tbe month of December, 1835, and in the months of-January and February, 1836, amounting to about twenty-one hundred dollars or thereabouts.</p> <p>5. That tbe appellant is charged with various sums and taxes, for which be is entitled to an exoneration, and which after the account is settled by the county auditors, should be charged to tbe account of his successor in office, in all amounting to about four hundred dollars.</p> <p>6. That the Auditor General and State Treasurer had no jurisdiction to settle the account in question before action thereon by the county auditors.</p> <p>The appeal was tried in the Common Pleas of Dauphin county.</p> <p>Pearson, President J., charged as follows:—</p> <p>“ This case is before the court on an appeal under the act of 1811. The defendant was treasurer of Northampton county for the years 183 ,-,-, and in that capacity received certain money belonging to the commonwealth, assessed as taxes, &c., amounting according to his own statement returned under oath to The statement was made out and forwarded to the Treasury department on , but the money was never paid over or</p> <p>offered to be paid, although admitted to be in his hands. On the 1st day of May, 1846, Mr. Porter’s account was settled at the department, of which notice was given the next day. A balance was struck against him amounting to $2396.43, on which was charged interest for ten years. The only question now raised, is, whether interest can be charged against the defendant. The principle is settled, that where one unjustly withholds money due to another, interest is chargeable as a matter of course.</p> <p>ífí >{c ;}c %</p> <p>“ The defendant insists that by the 35th section of the Act of 1811, interest can only be computed against him from the expiration of three months after the date of the settlement by the state department, and that such was the construction put on the act in the Easton Bank case, 10 Barr 442.</p> <p>“We do not so understand that case. * * * *</p> <p>“ The construction which we give the 35th section of the Act of 1811, is, that in settling the accounts of the debtors to the State, the Auditor General and State Treasurer may charge interest where the law would ordinarily give it, and are not required to charge it where the non-payment arises from mutual misapprehension, without any laches on part of the debtor; and the balance, composed of both principal and interest, found due to the Commonwealth, will bear interest from the expiration of three months from the time of settlement, provided no appeal is taken. It is thus treated as a judgment, with the exception of allowing three months, ex gratia, to make payment. When an appeal is taken, as here, the interest is to be computed from the time it was originally chargeable, without regard to the settlement of the account. This view is strengthened by the 9th section of the Act of 20th April, 1846, which clearly shows the intention of the legislature to charge all defaulting officers with interest from the time the money came to their hands, although it is very true this case does not come within the letter of that Act, it is not a ‘suit brought under it.’ The defendant urges that the non-payment here arose from a neglect of the officers to settle his account. Had he paid over the amount admitted by his return under oath to be due, there would be some force in the argument; but as he neither paid nor offered to pay anything, it is in our opinion entirely unavailing. The Commonwealth is not driven to rely on the settlement by her officers alone in this case, but has clearly established the receipt of the money and indebtedness of the defendant by his own return. Even if the Commonwealth had the power to compel a prompt settlement and ■payment of her dues, yet it has become almost a legal maxim, that she cannot suffer through the neglect of her officers. Your verdict, therefore, will be rendered in favour of the plaintiff for $2396.43, with interest from the first day of May, 1836 (the time fixed by the State officers), till this day.”</p> <p>The charge was excepted to on part of defendant.</p> <p>Yerdiet was rendered on 27 January, 1851, for the Commonwealth for $4517.57 damages.</p> <p>It was assigned for error,</p> <p>1. The Court erred in their charge in denying that the principles settled-in the Easton Bank case ruled this cause, viz.: “ The defendant insists, that by the 35th section of the Act of 1811, interest can only be computed against him, from the expiration of three months after the date of the settlement by the State Department, and that such was the construction put on the Act in the Easton Bank case, 10 Barr 442. We do not so understand this case.”</p> <p>2. The Court erred in instructing thé jury to find a verdict in favor of the “plaintiff for $2396.73, with interest from the 1st of May, 1836.”</p>

<p>A testator devised to his wife his dwelling-house and furniture, and directed the sum of $3000 to be left or put at interest by his executor, and the interest thereof to be paid to his widow annually during her widowhood: and as to the said three thousand dollars he further directed, that at the marriage or decease of his widow, the same be put to interest by his executor for his son John during his lifetime, and at his decease the principal to be paid to his sons Charles and Henry; and if one of them should die before his father, the survivor to take the whole. The widow refused to take under the will. Held, that as the said sum of three thousand dollars was to be invested for the use of John only on the marriage or decease of the widow, that John was not entitled to have that amount invested for his use on the refusal of the widow to take under the will; but it was directed that the balance in the hands of the administrator, which was less than $3000, be invested, and allowed to accumulate until the marriage or decease of the widow, when the sum of $3000 may be required to be invested for the benefit of John if living, and if not, then to be paid to his sons as directed by the will.</p>

<p>1. Though trespass will not lie against the owners of a drove on account of the driving off the heifer of the plaintiff by one in the employ of defendants; yet if the latter, knowing the animal to be the property of the plaintiff, or not having used the usual and proper precautions to ascertain that they had more cattle in their drove than their own, drive it away, they will be answerable in trespass for the injury done.</p> <p>2. If the defendants afterwards purchase the animal from the plaintiff, but the question of damages for taking it off is reserved, such purchase will not be a bar to an action of trespass for the removal.</p>

Error, to the Common Pleas of Luzerne county. This was an ejectment brought on 13th June, 1846, by David Steele v. Martin Smith and Jacob Bilheimer.—It was brought for three hundred acres of land or thereabouts, situate in the townships of Sugarloaf and Butler, in Luzerne county.

This was a proceeding before two justices of the peace, instituted on the part of the township of Gaines, to remove Simeon Swartwood, a pauper, to the township of Shippen, in which the justices “ award an order to remove said pauper from said township of Gaines to the township of Shippen,” and from which order of removal the defendant below appealed to the Quarter Sessions of Tioga county.

This was an action of ejectment by Maria Meredith v. John Montgomery, to April T. 1849, for a tract of land of 400 acres, warranted in the name of Elizabeth Clark; 140 acres of which it was admitted lay in the township of Oarbondale, and the balance in Jefferson township, Luzerne county.

This was a proceeding in the Common Pleas of Bradford county by scire facias on a transcript from a justice of the peace. The suit before the justice was stated, inter alia, as follows;— Summons issued to Elijah Wolcott, constable, 10th day of May, 1845. Subpoena issued for plaintiff. Summons returned served by copy the 10th day of May, 1845. May 14,1845, parties appear— defendant appeared by Nelson Coonrod.

This was an action of debt, by Lewis V. Price & Lougher, on one of two promissory notes given to the plaintiff by defendants, in payment for a canal boat called the “ Fair Play,” with team and harness. The plaintiff gave his note for $200 in evidence, and rested. The defendant gave the other note for $250 in evidence, and showed for what they were given. That the plaintiff said it was a good boat, and worth the money.

Jacob Snyder and others v. John J. Crouse and John Bull, Jr., executors of the alleged last will and testament of Andrew Snyder, deceased. Appeal from the Register’s Court of Lycoming county. In the matter of the last will and testament of Andrew Snyder, deceased, late of Muncy Creek township. November 13, 1846, will admitted to probate and letters testamentary granted thereon to John Bull, Jr., and John J. Crouse. Plaintiffs appeal from the decision of the register.

<p>'■Error to the Common Pleas of Susquehanna county.</p> <p>The case came before the Court on an issue directed by the Register’s Court to try the validity of a certain written paper purporting to be the last will and testament of Jasper Loomis, deceased. In the issue Sarah Loomis and Samuel A. Loomis were plaintiffs, and Thomas E. Kellogg and Alma Kellogg his wife, defendants. In the will of Jasper Loomis, his wife Sarah, and Samuel Loomis, the plaintiffs, were appointed executors. The will was dated the 16th day of September, 1848. It purported to be signed, &c., by Jasper Loomis in the presence of the witnesses, S. A. Loomis and Thomas J. Wrisley, who, it was averred, signed as witnesses in the presence of the testator.</p> <p>On the trial, Thomas J. Wrisley testified, inter alia: I am subscribing witness to the will. It was executed by the testator in my presence. Samuel A. Loomis was the other subscribing witness. He requested Samuel A. Loomis to write his name, and he did so. He said He was not able to write his name himself. I have seen Samuel A. Loomis' write. This is his signature. His name as a witness was written to it in my presence.</p> <p>Cross-examination.—No one but myself, Samuel A. Loomis, and the widow, in the room when the will was made. I am sure no one else was present. He survived the execution of the will about a week. The will was executed on Monday morning between one and two o’clock. I and Samuel A. Loomis had been sitting up that night. The widow had retired before the will was executed. She was up and down. Can’t tell whether Loomis or the widow brought the will in. I guess he did not take the will in his hands. He said he wanted the will signed, and witnessed when it was signed. The will was produced there drawn up as it is. The will looks like Otis Newton’s handwriting. I saw Samuel A. Loomis write the name of the testator as well as his own. Can’t tell what was done with it. Samuel A. Loomis had it when I last saw it. The words “ per S. A. Loomis per request of the testator,” I can’t say whether written there at the time or not: can’t say whose handwriting it is. He is brother to the widow. I stayed till about daylight. Jasper was raised up in the bed. He could not turn himself. He had dyspepsia. I got there from ten to eleven o’clock, A. M., Sunday. I was well acquainted with Jasper Loomis. I first saw him after dark Sunday evening. I did not shake hands with him. I only stepped to the door. The will was signed on a table or stand very near the bed. The will was not read to Jasper Loomis then, nor did he read it himself—not sealed up that I know of at the time. I have been acquainted with the handwriting of Otis sixteen or eighteen years. I can’t tell whether that is the same handwriting with the body of the will. Samuel A. Loomis came in the afternoon towards night. I saw Samuel A. Loomis write his name. I saw him write the name of Jasper Loomis. He was better towards morning. The reason I did not go in to see him was because they did not like to have people go in.</p> <p>Ee-examination.—I think the widow was in the room before and when the will was executed. She had been to rest before the will was executed. I was in and watched in the night. S. A. Loomis was out in the other room. Jasper seemed to rouse up past midnight, and wanted to know if the will was executed. I called S. A. Loomis into the room. He asked him what he wanted. He said he wanted to know if that had been attended to. Samuel asked what. He said the “will.” Samuel said “no,” and asked him if he wanted it done. He said yes. He asked if he could sign it himself. He said “no,” and requested Samuel to write his name to it. Samuel or the widow got it, and it-was executed. Samuel asked him if he knew the contents. He said he did. I should think he said it had been read to him: did not say who read it or who drew it. I don’t recollect who brought it. I don’t recollect as he wrote anything but the two names.</p> <p>Otis Newton sworn.—I have seen S. A. Loomis write. That signature is his. The name “ Jasper Loomis” is in the handwriting of Samuel A. Loomis.</p> <p>The will was offered to be read, but it was objected to on part of defendants, on the ground that the same was not sufficiently proved, and that the requisite proof of the situation of the testator at the time of making the will had not been given. The court sustained the objection, and the counsel of plaintiff excepted.</p> <p>The plaintiff’s counsel then called Samuel A. Loomis (one of the plaintiffs) as a witness, to prove the execution of the will; to whom the counsel for the defendants objected on the ground of incompetency. The court sustained the objection and rejected the witness, to which the counsel for the plaintiffs excepted.</p> <p>It was assigned for error :</p> <p>1. That the court erred in not receiving the will in evidence, when by the laws of the land it should have been.</p> <p>2. The court erred in not receiving the testimony of Samuel A. Loomis to prove the execution of the will, he being a competent witness.</p> <p>Eor the plaintiff in error, was cited, 5 Barr 21, Asay v. Hoover; Id. 441, Barr v. Graybill; Hays v. Harden, 6 Barr 412; 9 Id. 151.</p> <p>The executor was competent, 9 Barr 88-9; 1 P. Wms. 290; 2 Id. 182; 51 Law Lib. 105: Am. Law Jour. 62, August No. 1850, Snyder v. Bull.</p>

This was a sci. fa. issued to May Term, 1845, on a judgment obtained by Abel Hqskins, against N. Clapp, to revive the judgment, upon which the sheriff made return of service on the defendant, and also upon Forbes Low, as terre tenant.

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action of assumpsit, by Hugh Bellas v. Reuben Eagely and William Eagely, partners trading under the firm of Reuben Eagely & Co.</p> <p>Plaintiff held a claim against the Danville and Pottsville Railroad Company, and alleges that the defendants, in consideration that the plaintiff would receive from them coal in payment of said claim, and would agree to transfer said claim to them, they (the defendants) promised to deliver him (the plaintiff) coal to the amount of said claim; that the plaintiff did then and there agree to receive coal and make the transfer of the claim to the defendants : yet the said defendants (though the plaintiff the same day and year offered to transfer the said claim, and is still willing, &e.) have not delivered the said coal, but have neglected and refused, &c.</p> <p>The summons was served upon Reuben Eagely only—Plea, non assumpsit.</p> <p>The jury were sworn against William and Reuben Eagely, and the declaration was against both. There was no appearance for William Eagely.</p> <p>In the narr. was laid a promise by Reuben and William Eagely, made on the 1st day of August, 1843. There was no appearance for William Eagely.</p> <p>In 1848 a firm existed consisting of William and Reuben Eagely, and William H. Ease, under the name of Eagely, Ease & Co. It was testified that they did business till the close of 1843. That about the commencement of 1844, Reuben Eagely & Co. commenced business, the firm consisting of Reuben and William Eagely.</p> <p>The plaintiff offered in evidence an agreement under seal, dated 25th August, 1845, signed by Reuben Eagely & Co., and Hugh Bellas, the plaintiff. This paper was objected to, because it was under seal, and not signed by both defendants, and as irrelevant.</p> <p>It was admitted, and defendant’s counsel excepted.</p> <p>The agreement of August 1845, was to the effect that a settlement made on that day, was not to prejudice the claim of Bellas against Reuben Eagely, or Reuben Eagely & Co.</p> <p>The counsel for defendant asked the court to instruct the jury;</p> <p>1. That the plaintiff is bound to show not only a promise as laid in his declaration by Reuben Eagely, but a joint promise by Reuben and William Eagely, or the obligatory effect of the promise of Reuben upon William, otherwise he cannot recover.</p> <p>2. That any promise made by Reuben Fagely, before he and William entered into partnership under the firm of Reuben Eagely & Co., would not be binding upon the firm.</p> <p>3. That if the jury believe the firm of Reuben Eagely & Co. was not formed, and that Reuben and William did not do business under the firm of Reuben Eagely & Co., until after the date of the promise alleged to have been made by Reuben Eagely, even if he did make such promise as is laid in plaintiff’s declaration, it would not be binding upon the firm, and would not entitle plaintiff to recover in this action.</p> <p>4. That the law requires that promises of this kind to pay the debt of another, should be made out by very clear proof, and that our courts lean against a recovery wherever the precise terms of the promise are not explicitly shown, by clear and satisfactory proof, leaving no room to suspect mistake, misapprehension, or any unfairness in the transaction.</p> <p>5. That even if the jury believe all the testimony given by the plaintiff, it does not prove a sufficient consideration to support a promise.</p> <p>Anthony, J., to the first and second points, answered in the affirmative.</p> <p>“ To the third point, the Court answered, that as it is shown in evidence, and is uncontradicted, that William Eagely, Reuben Eagely and William H. Kase, were partners in 1843, in the firm name of Eagely, Kase & Co., and the promise is alleged to have been made in 1843, by Reuben and William Eagely, trading under the name of Reuben Eagely & Company, and as no plea in abatement was put in by defendant, the non-joinder of William H. Kase cannot be taken advantage of under the pleadings in the cause.</p> <p>“A creditor knows with whom he deals, but he may not know all the partners. If, therefore, those who are sued, desire to take advantage of the non-joinder of other partners, they must make the objection at the commencement of the suit, by pleading it in abatement—for as such plea must give the plaintiff a better writ or count, and must be certain in every particular, the defendants who are sued, are bound to plead in abatement the whole truth of the case, and disclose on the face of their plea, who are the persons that ought to have been joined as co-defendants.</p> <p>The court therefore instruct you, that if the firm of Fagely, Ease £ Company, did, in the year 1843, make such promise as is alleged in the plaintiff’s declaration, it would be binding upon the firm, and all the members thereof, who are sued, would be liable in the present action.</p> <p>“ Each partner is prsepositus negotiié societatis, and each partner, virtwte officii, possesses an equal and general power and authority in behalf of the firm to pledge, transfer, exchange, or apply or otherwise dispose of the partnership property and effects, for any and all purposes within the scope and objects of the partnership, and in the course of its trade and business. The nonjoinder of William H. Kase, therefore, will not prevent a recovery by the plaintiff from the present defendants, if the facts authorize such recovery.”</p> <p>The 4th point was answered in the affirmative.</p> <p>To the 5th point: The court refuse to answer this point as requested by the counsel for the defendant, and decide that if the jury believe the testimony given by the plaintiff, there is a sufficient consideration to support a promise by the defendants.'</p> <p>J. B. Anthony, President Judge.</p> <p>Nov. 18,1848. Verdict was rendered for plaintiff, for $199.50.</p> <p>1. After verdict the defendant’s counsel moved in arrest of judgment, 1. Because the jury were sworn, and the verdict is entered against both William and Reuben Fagely, and the declaration is against both, notwithstanding William was never served with process—did not appear, and was not impleaded in the action.</p> <p>2. Because the plaintiff does not set out a sufficient cause of action in his declaration.</p> <p>January 13, 1849. The motion was discharged, and judgment entered for plaintiff on the verdict.</p> <p>April 17, 1849. The court direct that, if execution be issued, it shall be against the property of Reuben Fagely only.</p> <p>It was assigned for error:</p> <p>1. That the court erred in admitting the evidence contained in defendant’s bill of exception.</p> <p>2. In their answers to defendant’s 3d and 5th points.</p> <p>3. In discharging the motion in arrest of judgment, and entering judgment for plaintiff upon the verdict.</p> <p>4. In directing that execution should be issued against the property of Reuben Fagely only.</p>

In the matter of a road in Augusta and Shamokin townships, Northumberland county, leading from near Peter Kieffer’s to íáamuel Glonsert’s. Certiorari to the Court of Quarter Sessions of Northumberland county ; July term, 1851.

<p>A justice of the peace has no authority to enter judgment of non-suit, after an appearance by the plaintiff. But where such a judgment is entered, the remedy of the-plaintiff is by appeal.</p>

<p>1. The rule declared in Walton v. Shelley, 1 Term. Rep. 296, excluding testimony tending to impeach negotiable paper, is, in Pennsylvania, to be restricted to the case of negotiable paper actually negotiated in the usual course of business before its maturity and in the hands of an innocent holder, without any previous notice of any original defect in it; and is to be confined to the parties whose names are upon the paper.</p> <p>2. In a suit by the holder against the acceptor of a draft payable to one or his order, a mere receipt, of the same date as that of the draft, by the person for whose accommodation it was alleged to have been drawn, stating such fact, and without any evidence of its execution at the time it bore date, was not evidence on the part of the acceptor-.</p> <p>3. It was not competent for the plaintiff in such a suit to prove his own declarations made in the presence of the person for whose accommodation it was alleged the draft was drawn, and from whom he had previously received it, who was not a party nor a witness in the cause: nor were the admissions of such latter person evidence in the suit against the acceptor.</p> <p>4. Where some evidence was given which tended to show that the draft was an accommodation paper, it was error in the Court to judge of it exclusively, and, on the ground that it was not such a paper, to direct the jury to find for the plaintiff: the evidence given should have been submitted to the jury.</p>

<p>Judgment will not be entered on an award or report of persons amicably chosen by the parties to make partition or appraisement after an interlocutory judgment in an action of partition. It is not competent for the parties to substitute their own contrivance for the writ of inquisition provided by law.</p>

In this case, Joseph J. Speed, assignee of Lewis II. Giese and James II. Giese, lately doing business in the name of Giese & Son, endorsees of Geo. Gundrum, were plaintiffs, and William J. May and Reuben Klose, late partners, trading under the firm of May & Klose, were defendants.

<p>Devise of land to be conveyed to certain persons, or such others as the monthly meeting of the Quakers in Philadelphia should nominate, in fee, “ there to build a meeting-house upon, if the members of that meeting shall agree to build a meeting-house there, but not else.” The land vras conveyed, and the meeting-house erected and used for more than a century. A new meetinghouse was then erected on other ground, and the old one disused under a vote of the meeting, and sold, but the sale was never consummated. Held, 1. The devise was of a fee simple, and not of a qualified estate. 2. That the trustees, &c., may sell and convey, applying the proceeds to the same uses as those on which the land was devised.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was au action by John Todd, endorsee, against John Miley, who was the first endorser upon a promissory note, as follows:—</p> <p>$154 68-100. _ Philadelphia, Jan. 2, 1844.</p> <p>_ Sixty days after date, I promise to pay to the order of John Miley, without defalcation, one hundred and fifty-four dollars ^ for value received.</p> <p>John Uber.</p> <p>Payable at the Southwark Bank.</p> <p>Endorsed successively by John Miley, John Todd, Caleb Wilkinson, Charles Justice, Jr.</p> <p>When the note fell due, it was in the hands of Charles Justice, Jr. After it became due, he transferred it to Todd, who was a prior endorser.</p> <p>The note was protested upon the 5th of March, 1845. Upon the trial, the plaintiff having first struck out all the endorsements after his own, called Charles Justice, Jr., a subsequent endorser (to whom, it was alleged, the note had been given for the purpose of collection), to prove that he had drawn the note, for the parties, upon the 2d day of January, 1845, and that upon that day it had been signed by the maker, John Uber, and endorsed by John Miley; but that owing to its being so early in the year, he (the witness) had, through mistake, dated it Jan. 2d, 1844.</p> <p>To his admission as a witness, the defendant below excepted.</p> <p>The error assigned was the permission to Justice to testify.</p>

<p>1. It was held that it was not the intention of Stephen Girard, in the 22d section of his will, to appropriate any part of tho fund of $500,000, devised by him, to tho charge of cleansing the docks along Delaware Avenue in the City of Philadelphia ; it was his purpose that that duty was to be performed by the owners of the wharves. Bach wharf owner is to keep in order his own wharf, and to pay tho expense of cleansing the adjoining dock in proportion to the number of feet of his lot or landing adjoining on each side of the dock. This duty was imposed on them by the Acts of 1698 and 1700.</p> <p>2. There is nothing in the 23d section of the will of the said testator to affect the independent construction of the 22d section of the will, or which annexed, as a condition to the devise to the Commonwealth of $300,000, the passage of laws to enforce the liabilities of wharf owners: the 23d section had reference, 1st, to the improvement of Delaware Avenue; 2d, the removal and prohibition of wooden buildings in the city of Philadelphia; and 3d, to the passage of laws for the widening, &c., of Water street, and other improvements specified in that section.</p>

Error, to the District Court, Philadelphia. Charles McAllister, the plaintiff in error, was plaintiff, a,nd the defendants in error, namely, David Samuel and Joseph M. Moss, as garnishees of Joseph L. Moss and Isaac Phillips, trading as R. & I. Phillips, were defendants below.

<p>Certiorari to the Court of Quarter Sessions of Northampton county.</p> <p>After other views had been had, the Court of Quarter Sessions of Northampton county, on petition presented at January Sessions, 1848, appointed viewers to view the route of a proposed road, to lead from the public road from Scholl’s Mill to the Lehigh Water Gap, thence by the nearest and best route to the public road leading from Bethlehem to Klecknersville, the whole distance being within Moore township. No order was issued, it was said, in consequence of its having been discovered that exceptions might be taken to some of the viewers. At the next April Sessions, the court, on the same petition, appointed other viewers in lieu of those appointed in January. In July, 1848, on account of the relationship of one of the viewers to an owner of land over which it was proposed the road should pass, the court substituted another person in his stead, and the viewers designated reported to August Sessions, in favor of the road, and their report was approved.</p> <p>At the next Sessions, viz. in November, 1848, a petition was presented for a review. Reviewers were appointed, and at the next Sessions the order was continued, but at January Sessions, 1849, a report was presented, signed by five of the reviewers, reporting in favor of a road differing from the one reported by the viewers.</p> <p>To the report of the reviewers exceptions were filed, and on the 23d January, 1851, their report,’was set aside, and the report of the viewers confirmed absolutely.</p> <p>On the same day, application was made to the court to appoint another set of reviewers under the old petition, as it was expressed in the endorsement on the petition for review. The court refused to do so.</p> <p>On the 24th Jan., 1851, the order to open the road was issued, and on the 13th March, 1851, the certiorari was issued in the case.</p> <p>One exception made in this court, was, that “ the court on the same petition appointed the set of viewers at the January Sessions, 1848, and another set at April Sessions, 1848, without any cause shown, and without and against the consent or notice to the owners of the land, over which the road was to be laid out.”</p> <p>It was alleged by the adverse counsel, that this exception was not taken in the court below.</p>

<p>The school laws of 1848 and 1849, providing for the establishment throughout the Commonwealth, of common schools for the education of individuals between the ages of five and twenty-one years, are not unconstitutional.</p>

This was an appeal by Aaron Dreisbach from the decree of the Orphans’ Court of the county of Northampton, dismissing the citation and refusing the prayer thereof, issued at the instance of appellant,… Held: dividing the said real estate into three purparts, and appraising the said purparts, respectively as follows: No. 1 at $2691.31; No. 2, at $869.45; and No. 3, at $168.16.

<p>Euuor to the Quarter Sessions of Oarhon county.</p> <p>Charles Dinkey, the plaintiff in error, was indicted at June Sessions, 1850, for fornication and bastardy. The indictment was in the usual form, and charge'd the fornication to have been committed on the 15th day of May, 1849. The bill was duly found; and on the 1st October, 1850, the defendant pleaded a former acquittal under an indictment for seduction of the same female, tried by a jury at the September Sessions, 1850. The Commonwealth demurred to the defendant’s plea as insufficient in point of law, and on the same day the court sustained the demurrer, and gave judgment of respondeat ouster. Whereupon, the defendant pleaded non cul. &c.; issue was joined; verdict of guilty rendered, and judgment pronounced. To this judgment the writ of error was taken.</p> <p>The indictment for seduction, upon which the plea of autrefois acquit was founded, contained three counts:</p> <p>The first count charged that the defendant “ on the 15th day of May, 1849, with force and arms, &c., at the county aforesaid, and within the jurisdiction of this court, did deliberately, wickedly, wilfully, maliciously, unlawfully, and under promise of marriage, seduce, and with illicit connexion carnally know, debauch and deflower a certain S. R., a single woman; she the said S., then and there being a female of good repute, under the age of twenty-one years, to wit, of the age of nineteen years and upwards.”</p> <p>The second count charged that the defendant “ on the 15th day of May, 1849, at the county aforesaid and within the jurisdiction of this court, did deliberately, knowingly, and seriously contract, promise, and engage, to unite himself in the bonds of matrimony with the said S. R., single woman, and under such contract, promise, and engagement of marriage, so as aforesaid made and entered into by the said Dinkey, did then and there unlawfully seduce and with unlawful connexion carnally know, debauch, and deflower the said S ; she the said S. then and there being a female of good repute, and under the age of twenty-one years, to wit, of the age of nineteen years and upwards.”</p> <p>The third count charged that the defendant “ on the 15th day of May, 1849, at, &c., within the jurisdiction, &c., did deliberately, knowingly, and seriously contract, promise, and engage to unite himself in the bonds of matrimony, to and with the said S. R., spinster and maiden, and under such contract, promise, and engagement of marriage so as aforesaid made and entered into by the said D., to and with the said S. R., he the said D. did then and there, and under .the contract and promise of marriage aforesaid, deliberately, wilfully, wickedly, maliciously, and unlawfully seduce, debauch, deflower, and with illicit connexion carnally know the said S. R., she the said S. R. then and there being a female of good repute for chastity; the said S. R., being at the time she was so as aforesaid seduced, debauched, and deflowered by the said D., under the contract and promise of marriage aforesaid, under twenty-one years of age.”</p> <p>It was assigned for error, that the court erred in sustaining the demurrer of the Commonwealth, and rendering judgment of respondeat ouster.</p>

This was an action to December Term, 1850, in the name of The Commissioners of Montgomery county against Samuel Fritz. It was an action of debt on bond. Defendant pleaded non est factum, and payment, &c. October 14th, 1850, judgment in favor of the Commissioners of Montgomery county (plaintiffs), for $1202.45.

This was an amicable action in covenant, entered in the court below, between Cornelius Connor, as plaintiff, and The Eire Insurance Company of Northampton county, as defendant.

<p>Error to tbe Common Pleas of Lehigh county. _</p> <p>This was an action of trespass brought by Jacob S. Helfrich against David Stem, for levying upon and selling a stock of store goods in a store carried on by the plaintiff below in Lehigh county. The goods were levied upon by the defendant as sheriff of Lehigh county, and sold, under a writ of execution directed to him as sheriff, issued out of the Orphans’ Court of BerJcs county, at the instance of William Hottenstine, administrator with the will annexed of Peter Helm, deceased, against Daniel Helfrich, returnable on 10th April, 1846. Daniel Helfrich had been executor of the will of Peter Ilehn, and was indebted to the estate $719.72, with interest from April 10th, 1840. He was discharged from the appointment as executor for failing to give security, and was ordered to deliver and pay to William Hottenstine the administrator with the will annexed, the estate in his hands. The fieri facias was awarded by the Orphans’ Court of Berks county on 21st March, 1846, against Daniel Helfrich, who then lived in Le-high county.</p> <p>A part of the goods sold had belonged to Daniel Helfrich, who sold his store to Jacob S. Helfrich. The store was afterwards carried on by Jacob S. Helfrich the purchaser, and the stock of goods was from time to time replenished by him. The sheriff levied on the goods indiscriminately.</p> <p>The sale of the stock of goods by Daniel to Jacob S. Helfrich took place about the 13th March, 1844; and a few days previous thereto, Daniel conveyed to Jacob the building in which the store was then kept and some ground on which it was erected. The deed for the same was dated 6th March, 1844.</p> <p>The case was tried before the Hon. J. Pringle Jones. A variety of evidence was given. For the material facts, see the portion of his charge which follows :—</p> <p>“ This is an action of trespass brought by Jacob S. Helfrich, against David Stem, Esq., the sheriff of this county, to recover damages for an alleged unlawful sale by the defendant, of the stock of store goods of the plaintiff.</p> <p>“It appears that the sheriff acted under authority of a writ of execution issued out of the Orphans’ Court of Berks county, at the suit of William Hottenstine, administrator de bonis non of Peter Hehn, deceased, against Daniel Helfrich. Daniel Helfrich had been the executor of Hehn, and as such became indebted to the estate in a large sum of money, as far back as 1840; and it was to enforce the payment of that sum that this writ of execution in the nature of a fi. fa. was issued, returnable on the 10th April, 1846. Under this writ against Daniel Helfrich, the sheriff levied upon and proceeded to sell this stock of store goods in the possession of Jacob S. Helfrich. Those goods were claimed by Jacob S. Helfrich, at the time, as belonging to himself, and he gave the sheriff notice not to sell them. Nothing is clearer than that the goods of one man cannot be taken to pay the debt of another. If these goods belonged to Jacob S. Helfrich, the sheriff would be a trespasser in levying upon and selling them under an execution against Daniel, and the plaintiff would be entitled to recover damages, covering not merely their value and interest thereupon, but such further compensation as you might deem proper, for the unlawful action of the sheriff in the premises.</p> <p>“ But it is alleged by the defendant, or those rather who have indemnified him, and who are the real defendants here, that these goods did not belong to Jacob S. Helfrich; that the sale from Daniel Helfrich to him of .these goods, by virtue of which he claimed to own them, was fraudulent; designed and contrived, between Daniel and Jacob, in order to defeat, delay, or hinder the creditors of Daniel, in violation of the statute of Elizabeth, and therefore the property in them remaining in Daniel, so far as his creditors were concerned, they were liable to be seized and sold for the payment of his debts.</p> <p>“ Jacob denies that there was anything fraudulent, either actually or legally so, in the sale of these goods by Daniel to him, and affirms that the transaction was fair and honest. This brings up the principal question in the case. You are to inquire into the circumstances attending the sale, and all the other circumstances given in evidence, and into the acts and declarations of Daniel and Jacob, as well before as after the sale, which, taken together, will enable you to arrive at a proper conclusion with regard to the character of that transaction. So far as creditors of Daniel Helfrich were concerned, in whom was the ownership of those goods at the time of the levy and sale, by the sheriff? If the sale by Daniel to Jacob was fraudulent, within the meaning of the statute of Elizabeth, then, so far as the creditors were concerned, the ownership of those goods would have remained in Daniel—if not, it would have been in Jacob. If that sale was thus fraudulent, your verdict should be for the defendant—if it was not, then for the plaintiff.</p> <p>“ From the facts alone can you arrive at a proper conclusion; and with a word or two to guide you upon the law, as to the investigation of fraud by juries, we will pass to the consideration of the evidence.</p> <p>“ Fraud, you will bear in mind, is never to be presumed. It must be established by proof. That proof, however, need not be direct and positive ; to require this, would be opening the door to fraud. Its existence may be deduced from circumstances affording strong presumption; in far the greater proportion of cases it can only be reached in this way. Fraud is distinguished as being either actual, positive fraud; or legal, constructive fraud. The first seems to be, where there is an intention to commit a cheat or deceit upon another to his injury; the second seems to be, where the act is pronounced fraudulent in law, without being the result of fraudulent intention. To establish actual fraud, the intention to cheat or deceive must be proved directly or circumstantially; with regard to legal fraud, it is enough to prove the acts of which the law pronounces that kind of fraud to consist. As to acts which constitute legal fraud, the jury will take the law from the 'court; and if they find such facts to be proved as constitute legal fraud under the charge of the court, we trust they will have no hesitation in doing what will be their duty in that contingency.</p> <p>“At the time*Jacob S. Helfrich purchased this stock of store goods, was he acquainted with Daniel Helfrich’s condition as a trader ?</p> <p>“It must be borne in mind, in considering this question, that Jacob and Daniel Helfrich stood to each other in the double relation of son and father, clerk and employer. Jacob was clerk to his father for six or more years. There does not appear to have been any other clerk; certainly his opportunity of becoming acquainted with Daniel’s condition from this relation of son and clerk would seem to be very abundant. But you are not left to conjecture on this matter. One witness after another tells you that Jacob either knew of his father’s longstanding indebtedness to those witnesses, or testifies to circumstances from which such knowledge might be inferred. -Most of them testify to his having direct knowledge of his indebtedness. Taking all the evidence together, we think it would justify you in coming to the conclusion that Jacob was acquainted with his father Daniel Helfrich’s condition at the time he made the purchase of the store stock; though of that you are the judges.</p> <p>“ We will next inquire what that condition was. It is said that at the time of this sale, Daniel Helfrich was legally indebted beyond his means of payment; in short, that he was insolvent. How was this ? This sale of the store goods by Daniel to Jacob would seem to have taken place in March, 1844, on the thirteenth of that month. From February to October, of that year, Daniel confessed judgments to the amount of $5466.68 to creditors, whose claims against him were generally of long standing; all of them pre-existing this sale, some of them for years; besides the debts for which judgment was confessed, there were others to Kutz, to Eckel, Spangler & Baiguel, and to Gomfloh & Co., amounting to a sum exceeding two thousand dollars, as I make it; the sum of his indebtedness was $7643; counsel have argued that it was higher than that. You will determine that, however, for yourselves; it is a fact for you. Now, his assets, according to my summary from my notes of evidence, consisted of his stock, valued at about $1200, land, &c., which sold for $2466, and the store stand valued at $1500, making together about $5160. If these figures are correct, then did Daniel Helfrich’s indebtedness exceed his means of payment by about the sum of $2500; but whether that is correct or not, is for you to determine.</p> <p>“If Daniel’s condition was such as these figures would seem to indicate, and Jacob was acquainted with it, he should'have been cautious in making a purchase of his father; not that a debtor, in circumstances however embarrassed, may not lawfully sell his property to his son, but, because of the relationship existing between them, the sale should be invested with a character of publicity; there should be nothing secret about it. The sale of this stock of goods to Jacob took place about the 13th March,'A. u. 1844, about seven days after the deed from, Daniel to Jacob, conveying the store stand, had been executed. You will remember how the purchase-money of that store stand was arranged between them to be paid; a note for $500 at a short date, and ten notes of $100 each, payable respectively through ten successive years without interest. In this way that purchase-money was to be paid. Now, I have no hesitation in instructing you, that circumstanced as Daniel Selfrich was, if Jacob knew of his condition, that arrangement of the purchase-money of that store stand was a fraud in Icm. If failing debtors are permitted to convey their estates away upon such terms as these, the statute of Elizabeth would have been passed in vain. No more effectual way of hindering creditors could be devised than this. A debtor could sell his property to his son upon payments of purchase-money about equal to the rent, and thus the creditors could be defrauded out of its entire value. Without any question of fraudulent intention, such a sale as that would be fraudulent in law. After parties have entered into such a transaction as that, where fraud in law has once attached to their act, they cannot cure it by subsequent arrangement. There is no purging a deed when it is once tainted with fraud.</p> <p>But to return to the sale of the store goods. That took place about seven days after the execution of the deed for the store stand, between the same parties. No witness was present at their sale, at least we have none here. All that we have is what Daniel and Jacob have said. The price seems to have been $1200, and it is agreed by all the witnesses that this was a fair price for it, as it stood at or about that time. There is no evidence that any money was paid to Daniel by Jacob, at the time of the sale. John Helfrich testifies that Jacob told him he was to pay the $1200 for the store stock to the old man’s (Daniel’s) creditors, as he could arrange it with them. From this witness’s testimony, it appears that the agreement for the sale of the store stock was made before the execution of the deed for the store stand. Jacob asked him if the store stock ought not to be put in the deed too, but the witness told him he thought it had nothing to do with the deed. The two transactions were then on the anvil at the same time. If they were in truth but one transaction, the sale of the store stock and of the store stand, then the fraud in law in that part of it relating to the store stand, would affect that part of it relating to the store goods.</p> <p>u Whether it was all one transaction is a fact-for your consideration. If they did not constitute one transaction, but were separate and independent, then each must stand upon its own ground, unaffected by the other.</p> <p>“It is alleged for the defence that there was a secret reservation for the support of Daniel Helfrich and his family or himself alone, which covered the whole of the transactions as to the store goods and store stand. If that is so, such reservation or ausbehalt in favor of Daniel would be a fraud in law,- that would vitiate the whole matter, so far as creditors are concerned. A man in failing circumstances can make no reservation of the kind. Whether such a reservation was made is a fact for you to determine upon the evidence that has been given to you touching it. You have the letter of the plaintiff; the declarations of himself and Daniel, testified to by Erasmus Helfrich, and others, as being made at several times and places, which it is for you to weigh, and to determine their force and significancv in this relation. Does this evidence satisfy you that there was a reservation that covered the whole transaction ? If it does, such reservation would be a fraud in law which would vitiate the whole sale of the goods and of the stand.</p> <p>“If the reservation only covered the stand, and that was a distinct sale, it would not have any effect upon the sale of the goods; but what was that reservation, if any was made, is for you to determine. Some of the witnesses just named are creditors, but they cannot be benefited by the result here; what feeling they may testify under, and what contradictions of former testimony touching these matters have been fixed upon any of them, are for you to consider in determining what credit you attach to their testimony.</p> <p>“ If in any of the ways indicated the sale of these store goods1 is tainted by legal fraud, and you find the facts which the law pronounces to constitute that form of fraud, your verdict should be for the defendant; but if you do not find those facts, it should be for the plaintiff.”</p> <p>The charge was excepted to on part of the plaintiff.</p> <p>On -the part of the plaintiff, points as follows were submitted:</p> <p>1. That the execution issued by the Orphans’ Court of Berks county furnished no justification to the defendant, as that court had not jurisdiction to issue the same.</p> <p>2. That unless the execution had actually been levied before the return day, even if issued by competent authority, it would not justify a sale after the return day.</p> <p>3. That if Jacob S. Helfrich was in possession of the store goods, and had been so for two years or thereabouts, he is entitled to recover against any person seizing and taking those goods under an execution against another, until it is shown to the satisfaction of the jury that those goods belonged to that other person.</p> <p>4. That whatever transactions took place in relation to the real estate had nothing to do with the transactions in relation to the sale of the store goods, unless they were shown to be simultaneous.</p> <p>5. That if the sale of the store goods by Daniel Helfrich to Jacob S. Helfrich was for a fair price, and bona fide, the title to those goods passed to Jacob S. Helfrich, and it is necessary for defendant to show fraud in fact to vitiate such a sale.</p> <p>6. That even if the sale in regard to the stock of goods purchased by Jacob S. Helfrich from Daniel were vitiated, that would not justify the defendant in levying upon and selling goods which Jacob S. Helfrich had subsequently purchased, and put in the store; and as to those the plaintiff would be entitled to recover.</p> <p>7. That if the sale and the conveyance of the real estate had any connection with that of the personal estate, if that sale was for a full price, and bona fide, it would not vitiate that sale, much less affect the sale of the personal estate.</p> <p>8. That if the sale of the personal estate was for the sum of $1200, and that was the full value of it, Jacob S. Helfrich was liable to pay the amount forthwith to Daniel Helfrich, or to those creditors to whom he agreed it should be paid; and he is presumed to have so paid it, inasmuch as the defendant has not proved that he did not pay it, and has objected to the plaintiff making the proof that he did pay it.</p> <p>9. That if the conduct of the persons suing out the execution against Daniel Helfrich, and levying it' on the property of Jacob S. Helfrich, was oppressive and wanton, the plaintiff is entitled to exemplary damages, more especially as it has been proved that the defendant declared he was indemnified.</p> <p>The points were answered as follows:—1. We answer this in the negative. 2. The levy in this case was sufficiently regular, as to the time when it was made, to justify a sale upon the execution after the return day. 3. We answer this point in the affirmative, as in fact we have already done. 4. It does not follow that whatever transaction took place in relation to the real estate had nothing to do with the transactions in relation to the sale of the store goods, unless they were shown to be simultaneous. Both the sale of the stand and of the goods were incomplete when Jacob wanted to have the goods put in the deed for the store stand. They were progressing toward their conclusion at the same time. 5. In such a case as that supposed in this point, it would not be necessary for the defendant to show fraud in fact, actual fraud, in order to vitiate the sale. If the plaintiff purchased with knowledge of his father’s insolvency, and there was a secret reservation in his favor ; or if the sale of the goods was combined with the sale of the stand, the legal fraud, in the reservation in the first, and in the mode of payment in the second case, would vitiate the sale. 6. We answer this point in the negative. 7. If there was legal fraud in the sale of the real estate in the ca.se supposed here, it would vitiate the sale both of the real and of the personal estate. 8. Granting that he is presumed to have paid the $1200, and that was the full value of the goods, and that lie was liable to pay it to Daniel or to his creditors, still it would avail nothing if the transaction was tainted with legal fraud. 9. There is no evidence that the conduct of the persons suing out the execution, &c., was oppressive and wanton, and we do not think this is a case for exemplary damages.</p> <p>Yerdict was rendered for the defendant.</p> <p>There were above twenty assignments of error. ' See the opinion of his Honor Lowrie, J., for those deemed by him material.</p>

This was an action by Ann Hallman against John Hobensack, to recover money which had been received by the defendant, under the following eirenmstanees:— Henry Hallman married Ann his wife, the plaintiff below, May 21st, 1841. She was then tenant of one McAdams. By a marriage contract, in which her brothers, W. H. and E. S. Sheetz, were trustees,' her separate property was secured to her. In April, 1842, Hallman and wife left the premises. McAdams claimed $250 rent.

<p>Erjiob, to the Common Pleas of Philadelphia.</p> <p>Ellen Eenton brought an action of replevin against Clement Harred in the Common Pleas of Philadelphia county, for a horse valued at fifty dollars, which, upon the writ, was delivered to the plaintiff. The declaration was for “ taking and detaining a horse of the value of fifty dollars,” to which the defendant plead “non cepit, and property with leave, &c.” On the 20th of March, 1849, a rule of reference was entered, under which arbitrators were appointed on the 5th of April following, who awarded $150 “damages” in favor of defendant. The plaintiff appealed, and a replication of “property in the plaintiff” being filed, under a rule taken by defendant, the cause was tried on the 19th of October, 1849, and a verdict rendered in favor of defendant, and damages were assessed to him of $200 for “ detention of property.” A motion for a new trial, and in arrest of judgment, because the amount of the sum in dispute was beyond the jurisdiction of the court, was overruled, and judgment rendered on the verdict.</p> <p>The error assigned in this court, was the refusal of the court below to arrest the judgment.</p>

<p>Ekror to the Common Fleas of Philadelphia county.</p> <p>This was a feigned issue, in which George Crock and John Boot were plaintiffs, and John Shinkle and George Elfrey were defendants. It was directed to determine the validity of a paper purporting to be the last will of Susan Crock, late of Philadelphia county. The paper was made and dated on the 26th March, 1844; Mrs. Crock, the testatrix, died on the 8d November, 1847. Crock and Root were appointed executors. The will was executed by the testatrix by making a mark in front of the seal. It was witnessed by S. H. Slingluff and Michael Crock. The plaintiffs below were legatees under the will.</p> <p>On the trial, in order to prove the due execution of the paper, •the plaintiffs below called Samuel H. Slingluff, one of the subscribing witnesses, who testified: I am an alderman; I knew the decedent, Susan Crock; I drew this will and she signed it; she held the tip of the pen; I wrote her name; &c.</p> <p>The other' subscribing witness, being a legatee under the will, and incompetent, the plaintiffs called George Root, who testified: “ I knew the testatrix; she was my grandmother; I had often paid her money, and know her mark; the mark at her name is her mark; I have no doubt of it.”</p> <p>Being cross-examined, the witness said: “ I knew her mark from other people’s; she always made her mark with one stroke crooked; the crookedness of the stroke is the only way I know her mark; she often gave me receipts, and her mark was always made alike. There’s another way I know her mark; it was always weighty— club-like; small at one end and weighty at the other. I am the son of John Root, one of the legatees in the will.”</p> <p>The counsel for the defendants below objected to the testimony of Root, and requested the court to charge the jury that he was not to be believed in testifying to a mark by comparison. The Court, however, charged as follows:—</p> <p>“ Mr. Slingluff, one of the subscribing witnesses to the will, drew it, was present at its execution, and saw the testatrix sign, execute, and deliver it as her last will and testament. The other subscribing witness, Michael Crock, being a party in interest, could not' be examined. George Root, the other witness, in relation to whose testimony so much comment has been made, was therefore called by the plaintiffs to prove that the ‘ mark’ to the will was the ‘ mark’ -of his grandmother, the testatrix.</p> <p>“ If the testimony of these witnesses be credited the will is established. The testimony of one of them (Mr. Slingluff) has not been impugned in any manner, but you have heard considerable criticism on the testimony of the other (Mr. Root). The credit of the witness is entirely for you; but no jury ought to presume perjury, except for good and sufficient reasons. His credit for veracity has not been impeached by any testimony, nor has the fact stated by him been disproved in, any manner by other witnesses. Is there anything so incredible in his story that you cannot believe him ? If so, discard his testimony; but if there is not, credit him, and let the plaintiffs have your verdict.”</p> <p>The judge being further asked to charge that the will was void as signed by a mark, and that the Act of Assembly authenticating such signatures was unconstitutional so far as it related to wills taking effect before its passage, reserved the point for the decision of the Supreme Court; and this is the error assigned.</p> <p>The jury found a verdict for the plaintiffs.</p> <p>It was assigned for error:</p> <p>1. The judge erred in not charging that the Act of 27th January, 1848, was unconstitutional, so far as it proposes to give validity to wills executed and purporting to take effect prior to its enactment.</p> <p>2. The judge erred in not charging that the verdict of the jury should be rendered subject to the decision of the court upon the constitutional question above stated.</p> <p>3. The judge erred in admitting proof by comparison and recollection of the alleged mark of Susan Crock.</p>

This was .a suit by Peter Dice against A. McElroy and Thomas Lister'for an excessive distress. The declaration contained three counts. 1. On the statute for an excessive distress. 2. For an excessive distress at common law. 3. Trover for the articles distrained. Plea was, not guilty with leave, &c. A. McElroy was the agent of David H. Mason, the landlord, who resided out of the state. Thomas Lister was the constable who made the distress.

Charles Mauger brought this action of assumpsit in the District Court, Philadelphia, against Rowland Cromelien, and filed with the prxeipe a paper in the following words, to wit:— “ The following is a copy of the note upon which the above action is brought:— $778. Nine months after date, I promise to pay R. Cromelien & Co. or order, seven hundred and seventy-eight dollars, at the City Bank of Rochester, for value received. W. H. Abb,.

<p>In an action on the case, it was alleged that the defendants had wrongfully and injuriously erected a dam, and unlawfully and wrongfully stopped the water of the stream, and diverted the same from the plaintiff’s tenements, and prevented the same from flowing thereto. After the arbitration of the ease, and award in favour of defendants, the court permitted an amendment of the declaration, by the addition of a clause alleging that the defendants, during the same time, unlawfully discharged the water of the stream, so that-it came upon the premises of the plaintiff at unreasonable times, and in unreasonable quantities: Held, that the permission of such amendment was not a ground of error: and, if the amendment may endanger or affect the rights of the defendants in another action, this court may permit such an amendment of the nan', to Be made in this court, as will obviate such a result. When the propriety of an amendment is apparent from the record, it may be made in this court, and a decree made as to costs.</p>

In the matter of Sarah Haage’s appeal from the decree of the Orphans’ Court of Montgomery county, December Term, 1850, No. 25. This is an appeal from the decree of the Orphans’ Court, appropriating the legacy of Sarah Haage out of the estate of her father Jacob Acuff, deceased, to the payment of an alleged debt of her deceased husband, George Haage, to David Acuff, surviving executor of the will of said Jacob Acuff, deceased.

Err.or from tbe Common Pleas of Montgomery county. This was an ejectment by Charlotte Black against the executors of Jacob Myers, deceased, to recover a piece of land fifty feet in width, adjoining the land of the plaintiff. And the title set up was a parol agreement, by the testator, to permit her to occupy it, during his life, at $3 per annum, and to have a conveyance of it at his death, on payment of $50.

This is an action of replevin brought by William T. Crook, plaintiff below, and defendant in error, against Benjamin M. Williams, defendant below, and plaintiff in error, to recover three cows. William T. Crook resides in Nether Providence School District, Delaware county, and was charged with school tax duly assessed for the school year of 1850, commencing in June, 1849.

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was a feigned issue to try the validity of the will of Benjamin Morris, deceased. In the issue, Rees Davies, executor of the will of Benjamin Morris deceased, was plaintiff, and Evan Morris was defendant. The will was admitted by the Register to probate on the 12th May, 1846, and again on the 2d June, 1846, after the executor had renounced.</p> <p>. In the will Benjamin Morris devised his larger dwelling-house in Minersville, to the Welsh Congregational or Independent Church, of Minersville; the property not to be sold, but the rents to be paid by the executors “ to the official members of said church, to the end of being appropriated to the use of the said church.” A smaller house and the one-half of the lot of ground on which it stood, he devised to the American Board of Commissioners for Foreign Missions, the property not to be sold, but the rents to be paid to “ official members of said board.” The other half of the lot he devised to the Independent Church aforesaid.</p> <p>He nominated John J. Davies, and Rees Davies, as the executors of his will.</p> <p>“ In testimony whereof, I, the said Benjamin Morris, to this my last will and testament, &c., do here subscribe my name and affix my seal, this second day of May, in the year of our Lord, one thousand eight hundred and forty six, &c. ms</p> <p>Signed, Benjamin ¡x¡ Morris.</p> <p>“Signed, sealed, and declared by the said Benjamin Morris, to be his last will and testament, in presence of us, who at his request and in Ms presence, have subscribed our names as witnesses thereto. ms</p> <p>Signed, John J. ]xj Davies.</p> <p>In the probate of May 12, 1846, it was stated that before the register personally came John J. Davies, the subscribing witness to the will, and also Roderick R. Williams, who deposed that they were both present and did see Benjamin Morris sign, seal, publish, pronounce, and declare the foregoing instrument of writing, as and for his testament and last will, &c., and that the said John J. Davies at the same time, and at the request of the said testator, and in his presence, and in the presence of the said R. R. Williams, subscribed his name by making his mark thereto as a witness, and that the said Roderick R. Williams was also requested by the said testator to sign his name thereto as a witness, and omitted to do so.</p> <p>Sworn and subscribed.</p> <p>Signed, John J. M Davies.</p> <p>Roderick R. Williams.</p> <p>Subsequently John J. Davies renounced the executorship, and probate was again made on June 2, 1846, and it was stated that Davies and Williams were sworn, and stated that they were both personally present on the second day of May, 1846, and saw and heard Benjamin Morris, the testator, sign, seal, publish, pronounce, and declare the annexed instrument of writing, as and for his last will.and testament, and that at the time of so doing he was of sound mind, memory, and understanding, to the best of their knowledge and belief, and that he, the said Benjamin Morris, the testator, requested these deponents to witness the said instrument of writing, as and for his last will and testament, and that thereupon the said John J. Davies, in the presence and at the request of the said Benjamin Morris, and in. the presence of the said Roderick R. Williams, subscribed the said will as a witness thereto, by making his cross or mark thereto, he being unable to write.</p> <p>John J. Sxj Davies.</p> <p>Roderick R. Williams.</p> <p>Sworn and subscribed, the day and year aforesaid, before me,</p> <p>Samuel G-uss, Reg’tr.</p> <p>Endorsed Will of Benjamin Morris. Filed May 12, 1846.</p> <p>On the trial of the issue of devisavit ml non, the plaintiff offered in evidence the probate of June 2, 1846. To which the defendant objected, and the court rejected the same.</p> <p>By his will the decedent gives a dwelling-house “to the Welsh Congregational or Independent Church of Minersville, property not to be sold, but the rents arising from said house to be paid by my (his) executors to the official members of said church, to the end of being appropriated to the use of the said church.”</p> <p>The plaintiff also offered John J. Davies as a witness, who was objected to and rejected on the ground of interest.</p> <p>It appeared by his examination, on his voire dire, that he was a member of the Welsh Congregational Church of Minersville; that he ivas not a trustee, and did not hold any office; that the members contribute according to their own will; that the pews are free; that the witness has been in the habit of paying fifty cents a month for the support of the clergyman; that it runs from month to month; that he was one of the building committee; that the church is in debt about $1000, for which the trustees have given papers; that he had not promised to pay any of the remaining'debt. “ The trustees are chosen by the members of the church; when a vacancy occurs we elect one in his place. I gave $20 for building the church; I don’t know how the present debt is to be paid; 1 was one of the building committee; the debt we owe is for building the church; the whole committee joined in the building ; the building committee made the contract with the mechanics for the building; David Price took the contract, and I believe a portion of this debt is due him; I guess there was no written contract with him.”</p> <p>The plaintiff also offered Roderick R. Williams, the pastor of the congregation, who was objected to and rejected on the ground of interest. On his examination, on his voire dire, he testified as follows:—“ I am pastor of this Welsh congregation, and-have been for a little more than three years; I was pastor when this church was built; I was not one of the building committee; I am not a trustee; we have no by-laws; everything is passed by the congregation ; my salary is paid by voluntary contribution; the society owes about $1000; I took an active part in getting subscriptions, and in having the church built; the building committee was elected by the congregation; I did not vote, but generally put questions to vote; I was present when the building committee was chosen, and I had no objection to the committee appointed; it was agreed by official members; I was to receive $24 every four weeks. Our officers are deacons, secretaries, trustees, and pastor. The builder said he would build for such a price, and this fact was stated to the society, and the society authorized the contract. Perhaps $200 are due Price; most of the balance of the debt is due members, who lent money to the society; they gave their private notes; it was understood the trustees were to find the money, and the society was to repay them; there was no formal agreement on the part of the society to refund the money; no note was given to Price; the understanding is that all are to be bound by a majority. The secretary keeps a roll of the members.</p> <p>Cross-examined.—“ John J. Davies was not a trustee, and did not sign any of the notes; unless a member were to contribute what he was able he would be expelled; I consider myself liable to contribute according to my means; if this property is recovered it would increase my salary.</p> <p>In chief:—“ Price completed the church and furnished all; we have about two hundred members. * * * I have no other means of living but my salary; I don’t know whether I shall be able to contribute any more; if I am, I shall.”</p> <p>The plaintiff then offered the said Roderick R. Williams as a witness, to the court and jury, to prove the execution of the will of the said Benjamin Morris; but the defendant objected to the witness, on the ground that he was interested in the result of the cause. The court (Kidder, J.) rejected the witness, and exception was taken on the part of the plaintiff.</p> <p>It was assigned for error:</p> <p>1. The court erred in rejecting the probate of June 2, 1846, as mentioned in the first bill of exceptions.</p> <p>2. The court erred in rejecting John J. Davies as a witness, as mentioned in the second bill of exceptions.</p> <p>3. The court erred in rejecting Roderick R. Williams as a witness, as mentioned in the third bill of exceptions.</p>

This was an appeal from the decree of the Court of Common Pleas of Chester county, overruling the exceptions to the report of an auditor appointed to report a distribution of the money in court, arising from the sale of the real estate of Amos B. McEarlan, with the facts and reasons upon which such distribution shall be made.

This was an action of ejectment brought by John Lloyd against his son Isaac Lloyd, to recover a lot of land in the borough of Chester, Delaware county. John Lloyd died after the institution of the suit, and Carter, his executor, was substituted. Samuel Starr owned the lot in question in 1849. There was a house erected upon it in which Isaac Lloyd lived as tenant of Starr, and kept a shoe store. He occupied all but a small building used as a hatter shop.

It is stated in the opinion of the Court, that this matter had been pending in the Common Pleas. It was not so stated in the paper-book. This was an amicable action to June term, 1848, entered into by Jacob Esher v. Henry J. Maynard to try a feigned issue. It was to have the same effect as if a summons had been regularly issued and served personally, and so returned.

<p>Error, to the Common Pleas of Chester county.</p> <p>This was an action brought by Robert Neely against George W. Neely, to July T.,1849, to recover from him several sums of money, amounting together to the sum of $1189, and interest, $100 of which was secured by a due-bill, $1000 by a promissory note, and $98 a balance on book account. The plaintiff declared on these several claims. The defendant pleaded non assumpsit and payment with leave, &e. On the trial of the cause the plaintiff produced witnesses to prove the due-bill, note, and book account, and the principal contest in the case turned on a question raised by the defendant, as to the genuineness of the $1000 note. The plaintiff gave the $1000 note in evidence after having given proof of its execution. Jane Neely, who had signed the note as subscribing witness, had been the subject of an inquisition de lunático inquirendo, and had been found a lunatic without lucid interval, about nine or ten months prior to the trial. The proceedings on that inquisition having been read in evidence, the plaintiff was permitted to prove her handwriting as though she had been dead or out of the state, and also the handwriting of G. Washington Neely, the maker of the note. After the testimony on the part of the plaintiff was closed, the defendant offered to prove that Jane Neely made declaration in relation to her signature to this note since the finding of the inquisition, but at a time when she enjoyed a lucid interval. The plaintiff’s counsel objected to the admission of the evidence. The evidence was overruled, hut defendant was permitted to call Jane Neely. The defendant then proceeded to examine other witnesses, but did not call Jane Neely. Before closing his evidence in the case he renewed his application to the coimt, and offered again to prove by Benjamin Millies, the same witness, the declarations of Jane Neely in relation to her signature as witness to the execution of the $1000 note; these declarations being made since the finding of the inquisition of lunacy, and at a time when it was alleged she enjoyed a lucid interval. The plaintiff’s attorney again objected to the admission of the testimony, but the objection was overruled, and the defendant was allowed to prove the declaration, after producing some testimony tending in the opinion of the court to establish the existence of a lucid interval. This declaration, according to the testimony, was made a few weeks before the trial, while Mrs. Neely was absent from her own house.</p> <p>The declaration, as testified to by the witness, is as follows:— “ I asked her if she had heard anything of the two notes in dispute, and whether she had signed her name to one of them as witness; she said she had not signed her name,” &c.</p> <p>The jury rendered a verdict for the plaintiff for the sum of $83.08, for which judgment was entered, and the plaintiff sued out a writ of error.</p> <p>The specifications of error were:</p> <p>1. The court erred in admitting evidence of the declarations of Jane Neely as to her not having signed the $1000 note as subscribing witness.</p> <p>2. The court erred in admitting in evidence any declarations of Jane Neely testified to by one of the defendant’s witnesses, because, if sane, she ought to have been called as a witness; if insane, her declarations ought to have been excluded.</p>

This was an action of assumpsit by John Maitland against Wilcox & Farren. The declaration contained three counts: 1. For the use and occupation of a certain messuage, &c., for three months, $120; and alleging a promise to pay the rent. 2. Reciting that on the 25th of December, 1847, in consideration that the plaintiff would demise to them a certain messuage, &e., for the term of seven years, payable quarterly, the defendants promised to pay the said rent, viz. $475 per annum.

’ Error to the District Court for the city and county of Philadelphia.

<p>Error, to the District Court, Philadelphia.</p> <p>This was an action by Peter Marseilles v. Kenton’s Executors, on a promissory note.</p> <p>The note upon-which the action was brought had no date to it-; it was as follows:—</p> <p>“ I promise to pay Peter Marseilles $1000 [for which he has advanced on twenty-four dozen seal-skin caps for E. Brown, which is in my hands] and to be paid on or before- the 9th of November, 1838. ' Signed ' Levi Kenton.”</p> <p>On the 9th November, 1844,. Kenton endorsed upon the note, viz:—</p> <p>“I agree-to extend the time-of-limitation .until Tuesday, November 12, 1844, and that Isaac M. Ashton shall by that time make the terms of settlement. Signed Levi Kenton.”</p> <p>On the same day Kenton went to Ashton and told him of this, and obtained his consent to serve as referee, and the parties and the referee had a meeting, and met- afterwards, and after November 12, by adjournment; in all four times.</p> <p>The last meeting was held at Kenton’s hat store, in Market street, for the referee to find out how many caps Kenton had not sold.</p> <p>They again adjourned, and before another meeting was had, and before any award was made, Kenton died. He died in January, Í845.</p> <p>After Kenton’s death the plaintiff offered to go on before the referee, and abide by his report; the executors refused.</p> <p>This action was brought on 5th December, 1846, against the executors.</p> <p>The pleadings first filed were as follows:—</p> <p>The narr. contained nine common counts in assumpsit (including an insimul computassent count, which was withdrawn May 13, 1848); one special and one general count on the note, and a count against the executors personally; no evidence was given against the executors on this count. The pleas to this narr. were: 1. Non assumpsit. 2. Non assumpsit infra sex annos. 3. Payment. 5. Non assumpsit as to executors; and 6. Actio non accrevit infra sex annos.</p> <p>Plaintiff’s replications to defendants’ first and third pleas were similiter and issues. To defendants’ second and fourth pleas, traverse. Defendants rejoin similiter and issues.</p> <p>Upon these pleas the case was tried before Judge Sharswoqd, January 11, 1848, and on proof of the note and the plaintiff’s other facts, the Judge charged the jury that the plaintiff’s claim was barred by the statute of limitations, and they must render a verdict for the defendants. The jury found a verdict for the plaintiff for $1546, and a new trial was granted, March 14, 1848.</p> <p>2. On the 12th of April, 1848, the plaintiff obtained leave, and on April 15, 1848, withdrew his replication to defendant’s plea of the statute of limitations, and filed an additional replication to it, to wit: That defendant was his factor, to which the defendant demurred, April 19, 1848.</p> <p>Plaintiff joined in demurrer, May 80, 1848, and took a rule, June 17, 1848, which was made absolute, June 24, 1848, to withdraw this replication. October 16, 1848, plaintiff renewed and filed his replication of as'sumpsit infra sex annos, to the defendants’ plea of non assumpsit infra sex annos.</p> <p>3. Additional count added, which was subsequently withdrawn.</p> <p>4. June 24,1848, plaintiff filed a second additional count: That the defendant was plaintiff’s factor, &c. July 16, 1848, the defendants plead, viz.:</p> <p>Non assumpsit. 2. Non assumpsit infra sex annos. 3. Actio non accrevit infra sex anos.</p> <p>September 4, 1848, rule on defendants to strike off his second and third pleas. September 16,1848, rule discharged. ' September 28, 1848, plaintiff replied, viz.:—</p> <p>1. As to defendant’s first plea, issues, &c. 2. To the second and third pleas he demurred.</p> <p>December 21, 1848, demurrer struck from the argument list. January 24, 1849, a jury was called before Stroud, J., and the plaintiff proved, 1. The offer and the defendant’s refusal to proceed before the referee, and submit to his decision.</p> <p>2. Defendant’s will and letters testamentary. 3. The note and its endorsement, and that Kenton had repeatedly acknowledged before the referee, after the 12th of November, 1844, his determination not to take any advantage of the limitation. That Kenton died before the reference was concluded, and that the referee made no report. It was alleged on part of plaintiff that it was contended that Kenton was plaintiff’s agent: that he had sold some of the caps, and still had possession of the remainder.</p> <p>Stroud, J., charged the jury, “That the merchant and factor’s” count last filed, and the pleadings under it, had nothing to do with the case before them; that the only question before them was a question of law upon the first declaration; and that on the whole evidence the plaintiff’s claim was barred by the statute of limitations, and that their verdict must be rendered for the defendant. Whereupon a verdict was rendered for the defendant.</p> <p>On the_22d of 'March, 1851, the demurrer was restored to the argument list from which it had been struck, to be disposed of after the jury trial. On the argument of the demurrer, the court entered judgment on the demurrer for the plaintiff. After this, viz.:—</p> <p>April 5, 1851, cross rules were entered for judgment for the plaintiff, and also for judgment for the defendant on the whole record.</p> <p>June 2, 1851, the rule for judgment for plaintiff on the whole record was discharged, and judgment was entered for the defendant.</p> <p>The assignments of error were, that the judge erred in his charge to the jury:— - -</p> <p>1. In directing them that the pleadings upon the last count or narr. had nothing to do with the case.</p> <p>2. That the whole case before them was a mere question of law, and that on the whole evidence the plaintiff’s claim was barred by the limitation; whereas the question whether Kenton borrowed $1000 of plaintiff, or was his agent, and whether Kenton by his declarations and acts before and after the six years were expired, did not disclaim the statute, so that it never did attach to the claim, were matters of fact for the jury.</p> <p>8. The court erred in striking the demurrer off the argument list, and in postponing a decision upon the demurrer until after the trial by the jury. The demurrer should have been decided first; the previous pleadings were superseded by the last narr.; and the demurrer, and a decision upon the demurrer involved all the merits of the case, and there was no occasion for a jury trial.</p> <p>4. The court erred in the following particulars:—1. In rendering judgment for the defendant against the facts and the law, and in the face of the judgment before them entered for the plaintiff on the demurrer. 2. In not entéring judgment for the plaintiff upon the whole record. 3. In entering judgment for the defendant, pending the issue on the plea of non assumpsit, to the last count; for if issues in fact are to be first tried, this was an issue of fact, and should also have been tried before deciding the demurrer. 4. And also in discharging plaintiff’s rule for judgment on the whole record, as no issues under the first narr., or verdict thereon, could oust the plaintiff of his right to judgment on the demurrer, which involved the simple question whether a factor or servant can plead the statute of limitations, a plea which is expressly excepted by the statute, and which had been demurred to, and judgment had been already entered thereon for the plaintiff, and then was in full force.</p> <p>The ease was argued by F. Brewster for the plaintiff.—The points of his argument were: 1. The loan was made by plaintiff to Kenton, and not to Brown. 2. The limitation was waived and never attached. 3. This was a question for the jury. 4. The executors had no right to plead the statute of limitations. 5. Nothing which has occurred can interfere with plaintiff’s right to judgment on the demurrer.</p>

This was an appeal from the judgment of an alderman, in a suit by William Lockwood against Andrew Miller, late recorder of deeds for the city and county of Philadelphia. The suit before the alderman was brought against the defendant for $50 penalty, under the Act of Assembly for taking illegal fees.

Certieioate from the Nisi Prius. The plaintiff declared in covenant on a policy of insurance against fire, averring that at the time of effecting the insurance, and at the time of the loss “ he was interested in the said insured frame buildings, machinery and tools of the satinett factory, known as Watson’s factory, and owned by Samuel Watson.” At the trial he gave in evidence the order for insurance. “ Make insurance against loss or damage by fire for four thousand-dollars,…

This was an appeal from the judgment of an alderman, before whom Jones brought a suit against Lewis to recover damages for. carrying off a quantity of manure from a piece of land containing above 20 acres, which had been leased by Jones to Lewis. The defendant kept cows; they were pastured on the place. There were a few acres for pasture and some for hay. It was testified by one witness that the defendant also purchased some hay.

Benjamin Caullet died, having first made and published his last will and testament, wherein he bequeathed the interest upon all his property to his wife, Sarah Caullet, during her natural life, and at her death the principal to his son Yictor, and the child whereof his wife was then pregnant. Samuel Withington and Henry Ducommun were named as executors, and letters testamentary were duly issued to them, at Philadelphia, on the 24th October, 1834.

<p>In the matter of the appeal of William Vandike.</p> <p>This was an appeal from the decision of the District Court of the City and County of Philadelphia, dismissing exceptions, confirming an auditor’s report, and awarding distribution according thereto.</p> <p>The fund in court, $1210.60, was raised by the sale of personal property, consisting of the stock and fixtures of a drug-mill, which 'the appellant alleges was the store of Albanus L. Bennett and James M. Vandike, trading under the firm of Bennett & Van-dike.</p> <p>At the time of the sale of the property, the sheriff had four writs of fi. fa. in his hands, as follows:—</p> <p>1. To the first writ, John J. McCahen v. Albanns Bennett, issued June 10, 1848, the sheriff returned as follows:—</p> <p>“Levied upon the personal property of defendant, June 10, 1848, and sold part thereof September 26, 1848, for five hundied and forty-nine dollars and thirty-five cents. A part thereof December 11, 1848, for eleven dollars, and the remainder thereof January 6, 1849, for seven hundred and ninety-two dollars and fifty cents. Together making the sum total of thirteen hundred and fifty-two dollars, eighty-five cents.” $1352.85.</p> <p>2. The will of William Yandike v. Bennett and Yandike, issued August 2, 1848.</p> <p>The sheriff returned, “Levied upon the personal property of the defendants, August 2,1848, subject to a writ of fi. fa. issued from the District Court, to wit: John J. McCahen v. Albanus L. Bennett, fi. fa., District Court, June, 1848, number 202, and sold a part thereof September 26, 1848, for five hundred and forty-nine dollars and thirty-five cents; a part thereof December 11,1848, for eleven dollars, and the remainder thereof January 6, 1849, for seven hundred and ninety-two dollars and fifty cents. Together making the sum total of thirteen hundred and fifty-two dollars, eighty-five cents.” $1852.85.</p> <p>3. The fi. fa. William Yandike v. Bennett & Yandike issued August 7, 1848. The sheriff returned, “ Levied upon the personal property of the defendants August 7, 1848, subject to sundry writs of fi. fa. issued from the District Court, to wit, John J. McCahen v. Albanus L. Bennett, fi. fa. District Court, June, 1848, number 202, and William Yandike v. A. L. Bennett and J. M. Yandike, District Court, September, 1848, number 9, and sold a part thereof September 26, 1848, for five hundred and forty-nine dollars and thirty-five cents. A part thereof December 11, 1848, for eleven dollars, and the remainder thereof January 6, 1849, for seven hundred and ninety-two dollars and fifty cents. Together making the sum total of thirteen hundred and fifty-two dollars and eighty-five cents.</p> <p>4. The fi.fa., Cummings v. Bennett & Yandike, issued September 28, 1848, was returned, “ Levied upon the personal property of the defendants, September 30, 1848, subject to sundry writs of fi. fa., issued from the District Court, &c., as above set forth.”</p> <p>In each of the said four cases, a rule was obtained on the 12th of March, 1849, on the sheriff to pay the money into court. He paid into court $1210.60, being the proceeds of sale under said writs, less sheriff’s costs, &e.</p> <p>March 16, 1849,. an auditor was appointed to distribute the fund in court in the above cases, whose report was filed 23d June, 1849.</p> <p>The auditor expressed the opinion that the Act of April 10, 1848, relative to levies and sales of personal property on execution in the county of Philadelphia, (Acts of 1848, p. 450), was not intended to relieve the sheriff from responsibility only in cases where goods levied on are claimed in opposition to the levy by some other person; and that the return of the sheriff to McCahen’s writ, was conclusive. He decided against the granting of an issue, and awarded the fund to the payment of the first execution.</p> <p>Exceptions as follows, were filed to his report:—</p> <p>1. That the auditor erred in reporting the fund to John J. McCahen.</p> <p>2. That the auditor erred in refusing an issue demanded by exceptant to try the question of fact, whether the fund in court was raised by sale of property belonging to the firm of Bennett & Van dike or not.</p> <p>3. And in refusing an issue to ascertain the amount due John J. McCahen.</p> <p>The District Court after argument dismissed the exceptions, confirmed the report, and ordered distribution according thereto, Dec. 29, 1849.</p> <p>It was assigned for error:</p> <p>1. The court below erred in dismissing the exceptions to the auditor’s report and confirming the report.</p> <p>2. The court below erred in refusing an issue demanded by the appellant to try the question of fact, whether the fund in court was raised by property belonging to the firm of Bennett & Van-dike or not.</p> <p>3. The court below erred in awarding the money in court to John J. McCahen.</p>

<p>Prom the Nisi Prius, Philadelphia.</p> <p>This was an action of ejectment for a lot and wbarf on Little Water street, Philadelphia, brought by Enoch Allen and Rebecca James v. Edmund J. and William Hollinshead, and Whitaker and wife in her right. The plaintiffs claimed the premises as purchasers at sheriff’s sale, when sold as the property of E. J. Hollinshead, and a deed by the sheriff to them, executed on the 21st February, 1846.</p> <p>Por a statement of the defendant’s title, see the charge of his Honor, Judge Rogers, delivered at Nisi Prius.</p> <p>The agreement between E. J. Hollinshead and Jacob Ridgway, bears date on the 25th day of July, 1820. It was stated therein, that Hollinshead had assigned to Ridgway four bonds and warrants of attorney, two of them accompanied by mortgages, also assigned, the whole amounting to $15,000. That Hollinshead had given his note to Ridgway for $6000; that he had purchased from Ridgway a farm for $3000. Hollinshead agreed to pay Ridgway for the land $3403, and it was stated he understood that the four bonds and the two mortgages, amounting in the whole to $15,000, were to remain in the hands of Ridgway, as collateral security; first, for the payment of the note for $6000, and further, for the payment of $1403, being one of the payments on the land; on the payment of which Ridgway was to convey the land to Hollinshead, and take his bonds for the remaining $2000, with interest, &c.; and, whereas most or all of the bonds were in suit, Ridgway was to receive any moneys recovered on them, and after payment of the $6000 and the $1403, and the payment of costs, the surplus, if any, was to be paid to Hollinshead.</p> <p>It was afterwards further agreed, that the bonds and warrants, and mortgages were to remain as a further, collateral security for the payment of $3000, lent that day by Ridgway to Hollinshead; Ridgway to have the right to collect any money due on the securities, or sell them, or any part of them, and to account for any surplus.</p> <p>Ridgway purchased the premises in dispute when sold under one of the mortgages, for $1090, and received a deed from the sheriff, dated 19th February, 1822. On the 1st of March, 1835, he conveyed the premises to Sarah E. Hollinshead, and on the 9th May, 1838, Sarah conveyed the premises to her father, E. J. Hollinshead, in trust for her brother William and herself.</p> <p>On the trial the real estate book of Jacob Ridgway was given in evidence, on the part of the plaintiffs.</p> <p>The deposition of Ann McCartney was also given in evidence on their part, to prove declarations made by the said Sarah, then the wife of Whitaker, to the effect that her father, E. J.Hollinshead, had assigned his property to her to keep it from his creditor’s.</p> <p>The account book of Ridgway contained entries as to land taken from other real estate in New Jersey, under the direction of Ridgway, amounting to about $18,000. In this estate E. J. Hollinshead had an estate for life, as tenant by curtesy; the fee eventually became vested exclusively in Sarah. Her brother, who was born before her, died in his minority.</p> <p>E. J. Hollinshead executed an assignment, as an insolvent, on the 9th April, 1822; and he was discharged on the 12th April, 1822. His petition as an insolvent was presented on March 23, 1822. It contained a statement of debts exceeding $15,000, including a claim, exceeding $1600, in favor of John Nagle, at whose suit the premises in dispute were afterwards, viz., in 1846, sold at sheriff’s sale. Judgments for some of the debts were after-wards obtained, and some of them were in force at the time of this suit.</p> <p>The charge of his Honor, Judge Roams, was, in part, as follows :—</p> <p>“ This is an action of ejectment to recover a lot and wharf in Little Water street, between Lombard and South, fronting the river Delaware. The plaintiff’s title is briefly this:—The 29th March, 1828, John Nagle obtained a judgment against Edmund J. Hollinshead, the original defendant in the action, for a debt, owing to Mm by Hollinshead, and whether as surety or principal, is immaterial. This judgment was suffered to sleep until some time in the year 1842, when it was revived by scire facias. A venditioni exponas being issued on this judgment, after its revival, the property in dispute was sold by the sheriff, and purchased by the plaintiffs, Enoch Allen and Rebecca James, who were creditors of Hollinshead, to whom the sheriff, the 21st February, 1846, in due form executed a deed.</p> <p>“ The plaintiffs allege, that at the time the judgment was rendered, and at the time of its revival and sale, the property belonged to Edmund J. Hollinshead, as whose property it was seized and sold in payment of the debts. If you should be satisfied that at the time of the revival of the judgment the property in dispute belonged to Hollinshead, the plaintiff is entitled to recover. I say in 1842, the time the judgment was revived, because the plaintiff having omitted to revive his judgment, by issuing a scire facias, as prescribed by law, it had lost its lien, and, consequently, the lien only attaches from the time of its revival. This is the important part of time to which your attention will be particularly directed. The plaintiff, you will recollect, alleges, that at that time Hollinshead was the owner of the property in dispute. This the defendants strenuously deny, and this is the turning point of the cause.</p> <p>“ The defendants’ title is this:—It is admitted, that on the 16th May, 1818, and before, the title to the property in dispute was vested in a certain Joshua Pedell, who on that day, viz., the 16th May, 1818, mortgaged the premises to secure the payment of $2000 to Joshua Ball. Ball assigned his interest in the mortgage to Edmund J. Hollinshead, who, on the 25th July, 1820, assigned the same to Jacob Ridgway. Proceedings were had on the mortgage, which resulted in the sale of the property to Jacob Ridgway, for the sum of $1090, who received in his own name a deed from the sheriff on the 19th February, 1822.</p> <p>“ The assignment of the Pedell mortgage, together with another mortgage, and two obligations, amounting to $15,000, as appears by an article of agreement, of even date with the assignment, was designed as collateral security for a debt of $6000, and also to secure the payment of purchase-money for a tract of land sold by Ridgway to Hollinshead, amounting to $3403, making $9403. The assignment of the Pedell mortgage, with the other assignments, were made the 20th July, 1820. At that time, as has been truly said by the defendant’s counsel, Hollinshead was not the owner of the property in dispute. The property belonged to Pedell, who mortgaged it to Ball, who assigned to Hollinshead, who assigned to Ridgway. From this the defendants contend, that as Ridgway became the purchaser of the property at the sheriff’s sale, he was the absolute owner of it, and, of course, had a right to dispose of it as he pleased, either by gift or sale, at a greater or less sum, as he might see fit.</p> <p>“ If the assignment of the mortgage had been an absolute assignment, this consequence would certainly follow. But inasmuch as the assignment was not absolute, but fj,n assignment of a collateral security, I shall leave it to you to say .whether, from the nature of the transaction and the evidence furnished by the books of Mr. Ridgway, there is not reason to believe, that the purchase was made for the benefit of Hollinshead; that Ridgway was a trustee for Hollinshead, and held the land, as he had the mortgage, as a collateral merely, to secure the debts owing to him; that the land, as between them, was but a substitute for the mortgage.</p> <p>“ If the transaction rested here, there could be nothing to which any person could take exception. Eor there can be no doubt, however indebted Hollinshead might be, he would have a right to assign securities for a much greater amount than $15,000 as col-laterals, to secure the sum of $9408, then owing to Ridgway. This is conceded, and indeed could not be plausibly denied.</p> <p>“In addition to the assignments of the mortgages and bond already mentioned, E. J. Hollinshead convoyed to Jacob Ridgway four tracts of land, in the state of New Jersey, three consisting of 100 acres, for the consideration of $100 each, and the fourth of 295 acres, for the consideration of $8000. These deeds are of the same date, viz., the 28th July, 1821. These deeds, although absolute in their form, the defendants admit were regarded by the parties as collateral, to secure the money owing to Mr. Ridgway, and future advances which he might be disposed to make.</p> <p>“ But the plaintiffs contend-, that this was not at any rate the only design, but that the parties further intended to cover the property of Hollinshead, who at the time was largely indebted, and who at a short time afterwards took the benefit of the Act, from the grasp of creditors. If such was the design, of which you are the judges, it was fraudulent and void. No man has a right to hinder, delay, or defraud his honest creditors.</p> <p>“ The defendants, on the other hand, contend this was a fair, usual, and common transaction; that the design of the parties was nothing more nor less than to secure advances already made by Mr. Ridgway, and that might, thereafter, be made by him. If such was the intention, there was nothing wrong or exceptionable in it. The parties, it is true, exposed themselves to the risk of the property being levied or sold by a judgment creditor, either against the person holding the legal, or who is entitled to the equitable estate. But the transaction per se is not fraudulent ; nor have the general creditors any right to complain, when it is in good faith for that purpose, and not as a cover to the property of the debtor.</p> <p>“ This is a question of fact, and depends on the intention of the parties. If you believe that the assignments and deeds mentioned were made to secure advances of money made, or to be made, that' I instruct you is lawful and fair; but if you should think, from a view of all the facts and circumstances in evidence, it was done with an intention to cover Hollinshead’s property from his creditors, it is fraudulent and void. This is a question of fact, on which it is not my intention to intimate an opinion.</p> <p>“ The remarks already made apply to the transaction, as between Messrs. Ridgway and Hollinshead, from the 25th July, 1826, until 24th September, 1834, when a new actor appears on the scene. On that day, viz.: the 24th September, 1834, Ridgway, in whom the legal estate was vested, conveyed to Sarah D. Ilollinshead, for the consideration of $1700, certain real estate therein described. On the same day another tract of land in Cumberland county, in New Jersey, a tract of land of 295 acres, consideration $3000. The 1st March, 1835, Jacob Ridgway also conveyed to Sarah E. Hollinshead the premises in dispute, consideration expressed in the deed $3500, viz., a mortgage for $1652, the residue of the purchase-money, in money arising from the sale of sand. It is also in evidence, that on the 9th May, 1838, Sarah E. Hollinshead conveyed to her father in trust, for the purposes therein named, for her brother William and herself, all the property she received from the conveyance of Ridgway to her.</p> <p>“ The plaintiffs contend, that these deeds are only carrying out the fraudulent scheme between Ridgway and Hollinshead; that his daughter, and afterwards the father, were only subrogated in place of Ridgway for the same fraudulent purpose. The plaintiffs insist, that at the time of the purchase and before, she was a single woman, dependent on her father and living with him, that she was destitute of means to make the purchase. That the consideration mentioned in the deed, was nominal and fictitious, and not real. They infer fraud from all the circumstances in evidence, which they say, prove that intent. They further say, that fraud is manifest from her own declarations, as proved in the deposition of Anne McCarty, and the oath of Catherine Fitzgerald, who prove that Mrs. Whitaker, formerly Sarah E. Hollinshead, said in their presence, that the title was put in her name, merely to keep -it from her father’s creditors. That he had labored hard for the property, and intended to have the benefit of it as long as he lived. That it was shown he intended to keep it from his creditors. That in pursuance of the plan and to carry it out, Sarah afterwards as they contend, viz., the 9th May, 1838, conveyed all the property conveyed to her, to her father, who continued to receive the rents, issues, and profits until his death.</p> <p>“ The defendants, however, deny anything like combination or .fraud on her part. They contend, she, Sarah, is a bond fide purchaser for value, and without notice of any fraud or combination between Hollinshead and Ridgway, even if any existed, which they also deny. They also allege that witnesses have mistaken her expressions, and that no such conversation ever took place. They allege, that although single and unmarried at the time, she had ample means to make the purchase. That instead of being supported by her father, her father was supported with her money. That the consideration mentioned in the deed, viz.: the money justly owing to her from the sale of her sand, the product of her soil in the farm in Cumberland county, New Jersey, was not fictitious, colorable, or fraudulent, but was a just, true, and ample consideration. .</p> <p>“ On this part of the case, viz.: the consideration, you will recollect that Edmund J. Hollinshead was entitled to a life estate in the Cumberland land, as tenant by the curtesy, and nothing more; Sarah E. Hollinshead in right of her mother, who died in 1814, was tenant in fee. The life estate being conveyed to Ridgway, he stands in Hollinshead’s place; he is tenant for life, she is tenant in fee. Standing in this position, Ridgway being desirous to begin to dig sand from the soil, and to continue to dig it, it matters not much which, takes the advice of Mr. Ewing, at that time an eminent lawyer in the state of New Jersey. Afterwards, perhaps before he sells the sand, keeping, as I presume, an accurate account of the sales, amounting, as appears in evidence, to $18,316.47, which with interest added, increased to $23,697.89. I put it at this amount from the statement of counsel, without attempting to vouch for its accuracy. Of this you will judge. It appears that Hollinshead married his first wife, Miss Bower, Sarah’s mother, in 1806, who had a son in 1808, who died in his minority; that Sarah was born in 1816. There is no proof the sand was worked before the birth of the son, when the tenancy by the curtesy commenced.</p> <p>“ Under these points I have been requested by the counsel for the defendants to instruct you, that this would be such waste, as under the statute of Gloucester, which is in force in New Jersey, would entitle Sarah to treble damages, and a forfeiture of the estate.</p> <p>“ The defendants contend that in an action of waste (if Sarah had been disposed to have brought it), she would have been entitled to recover the property wasted, and damages to the amount, at least, of the money realized by the sale of the sand. And the court would have been bound to treble the damages given by the Í'ury. The effect would be this: the jury would have given, say 23,000, which the court would have been bound to treble, or, in other words, to give judgment for the sum of $41,750. I cannot so instruct you. I do not consider it such waste, although I agree it is technically waste, as comes within the operation of the statute of Gloucester, which in effect is highly penal.</p> <p>“ It is, however, a nice point, one not altogether free from difficulty ; and if Mr. Ridgway, with a view to it, compromised her claim at $28,000, the amount of his receipts, with interest, it would be another instance of his sagacity and prudence.</p> <p>“ There was a time when any change whatever, although beneficial to the property, as, for instance, converting arable land into meadow, was held to be waste. But the law has never been so understood in this country. It may suit the condition of an old settled country like England, but it is inapplicable to us, where everything is in a state of transition and change. Such a rule would retard the improvement and settlement of a new country, where forests must be felled and mines opened.</p> <p>“ Can it be the law of this country, that where valuable mines are discovered, whether of coal, iron ore, valuable sand, gold, or silver, they cannot be touched by a tenant for life, without forfeiture of his interest, and subjecting himself to heavy damages, under the statute of Gloucester, which in its nature is a penal statute ?</p> <p>“ I charge you, gentlemen, that such is not the law, although, as I before said, it is a nice point, and would be the proper subject of compromise.</p> <p>“ But although this be so, the next inquiry is, is the tenant in fee without remedy ? or in other words, can the tenant for life pocket all the profits made by a sale of the soil itself, which is part of the inheritance, or is he obliged to account for the profits, to the owner of the fee ? On this point I have no difficulty. The tenant must account to the tenant in fee for all the profits made by the sale of the same.</p> <p>“ Apply this principle to the case in hand. Sarah E. Hollinshead had a just and legal claim on Mr. Ridgway for the whole amount received by him from the sale of the sand. Jacob Ridgway was indebted to her to that amount, which he was bound to pay her, either in cash, or as they might agree, by the conveyance 'of property, real or personal. That there was then a valuable consideration moving from Sarah E. Hollinshead to Ridgway, or to her father, or both, no person can doubt. It is in truth the payment of a just and honest debt, owing by Ridgway to her, which, instead of being paid in cash, the parties have preferred to have paid in land. She had nothing to do with the manner Ridgway chose to settle his account with her father. He had no right, without her permission, to pay her father’s debts with her money. Sarah had an action against Ridgway, which she might have enforced either by bill in chancery, or by an action for money had and received for her use. As, then, she is a purchaser for valuable consideration, the next question you will have to decide is, is she a purchaser bond fide and in good faith, and without notice ? The law is, she must not only he bond fide a purchaser for a valuable consideration, but a purchaser without notice. If she is, whatever may be the demands of Ridgway and her father, she is entitled to protection. She stands in a better, not in the same situation that they do, as she is a purchaser for a valuable consideration, and, of course, takes the property, notwithstanding there be a fraud in them. .</p> <p>“ On the question of fraud, the difference between the consideration paid for the land and its real value, has been much insisted on. If grossly inadequate, it would be a strong circumstance showing fraud. But if not gross, it is more or less so according to the inequality between the price paid and the value of the land. There is nothing, however, in the circumstances of this case, that would justify a verdict for the plaintiffs on that ground alone. On this subject the counsel widely differ. It will be for you to estimate the difference, and to give it such weight as you may think it justly entitled to.</p> <p>“ The question that you will have to decide will be, were Ridgway, and Hollinshead, and Sarah E. Hollinshead, engaged in a fraudulent combination to cheat and defraud the creditors of the latter.</p> <p>“ Fraud is not to be presumed on slight grounds. It must be proved, not by positive evidence, it is true, but by evidence which clearly indicates the dishonest and corrupt intent. When the evidence is of a measuring cast, your mind should incline in favor of innocence, particularly when the grave has closed over the accused, who are unable to defend themselves from the attacks of the living.</p> <p>“ In concluding my remarks on this point of the case, I must remind you, this cause has been before tried, and resulted in a verdict for the defendants. This is not binding on you, although it is considered as entitled to some weight, particularly in a doubtful case. It is also contended that the plaintiffs cannot recover, because Hollinshead took the benefit of the Act, and conveyed his property to trustees, for the benefit of his creditors. The objection would be fatal to the plaintiff’s recovery, were it not for the fact, that the conveyance was made the 12th April, 1822, and we hear of no proceedings since that time. After such a lapse of time, the law presumes a reconveyance of the assignee’s property, or that some arrangement has been made with the trustees, by which the property has been reinvested in the assignor. Under the circumstances, we think the assignment forms no obstacle in the way of the plaintiff’s recovery.</p> <p>“ The question then on which the whole case stands, is a question of fraud, which you must determine. If you believe that Ridgway, Hollinshead, and Sarah E. Hollinshead were engaged in a fraudulent combination and conspiracy, to cheat the creditors of Hollinshead, by covering bis property, you will find for the plaintiff. But unless you are satisfied of their guilt and the truth of the charge, your verdict should be in favor of the defendants.’’</p> <p>Verdict was rendered for the plaintiffs.</p> <p>Judgment was rendered, and the case taken up on certificate to the Nisi Prius.</p> <p>The assignments of error were as follows:—</p> <p>The judge erred in admitting in evidence,</p> <p>1. The deed of North, sheriff, to Jacob Bidgway.</p> <p>2. The agreement, dated July 25, 1820, between Jacob Bidgway and E. J. Hollinshead.</p> <p>8. The real estate book of Jacob Bidgway.</p> <p>4. The deposition of Anne McCartney, and the parts objected to therein.</p> <p>The judge erred in charging the jury :■—</p> <p>1. That the removal of the sand by Bidgway and Hollinshead was not waste under the statute of New Jersey, for which the parties, or either of them, would be liable to treble, or other damages.</p> <p>2. That the insolvent discharge of E. J. Hollinshead was no bar to the plaintiff’s recovery.</p> <p>8. That under the evidence in the cause, the law would presume that the property had been reconveyed to, or was reinvested in the assignor.</p>

<p>This was an action on the case, brought by Wells & Miles, plaintiffs below, against Joseph Kyle and James Kyle, lately trading as Kyles & Co., defendants below, on a promissory note, signed Kyles & Co,, dated New York, November 26, 1832, for $812.64, payable in ninety days from the date thereof, to the order of Wells & Miles, and by them endorsed.</p> <p>The original summons, issued on the 27th November, 1843 (being ten years and nine months from the time the cause of action commenced), in the District Court for the city and county of Philadelphia, returnable to the first Monday in December, 1843. The sheriff made return to this writ, “ Nihil habet.”</p> <p>'• An alias summons was issued on the 23d February, 1844 (being some days less than eleven years from the time the cause of action commenced), returnable to the first Monday in March, 1844. The sheriff’s return to this alias writ was “nihil habet,” as to Joseph Kyle; “ served,” as to James Kyle.</p> <p>■ A copy of the promissory note was filed by plaintiffs, and an affidavit of defence was filed by James Kyle (the only defendant in court), to the effect that no partnership ever existed between the affiant and Joseph Kyle, as alleged; that the signature to said note was not his handwriting; and averring, moreover, that said note was barred by the statute of limitations.</p> <p>The declaration contained, 1. A count on the promissory note in the usual form, describing it as a note for $812.54, bearing date on the 26th November, 1832, payable ninety days from the date thereof, &c.</p> <p>2. A count on the promissory note, similar to the foregoing, but describing it as a note for $812.56.</p> <p>3. A count on the promissory note, describing it as a note for $812.54, and averring that the defendants being liable thereon, they, the defendants, in consideration thereof, afterwards, to wit, on the thirty-first day of December, A. D. 1841, at, &c., aforesaid, undertook, and then and there faithfully promised the said plaintiffs to pay them the said last-mentioned sum of money, in the said last-mentioned note specified, within twelve months thereafter. And although twelve months from the time of the making of the said last-mentioned promise and undertaking of the said defendants have long since elapsed, to wit, at, &c., aforesaid, yet the said defendants, not regarding their said last-mentioned promise and undertaking, have not as yet paid, &c. &c.</p> <p>• 4. ,A count on the promissory note, describing it as a note for $812.56, and averring a new promise to pay, similar to the one set forth in the preceding count.</p> <p>5. Account stated.</p> <p>6. Common count for goods sold and delivered.</p> <p>The defendant, James Kyle, entered the following pleas, to wit:</p> <p>1. Non assumpsit. 2. Non assumpsit infra sex annos. 3. Actio non accrevit infra sex annos.</p> <p>The plaintiffs replied:—1. Similiter. 2. Assumpsit infra sex annos. 3. Accrevit actio infra sex annos.</p> <p>On these pleadings the cause was tried, and on the evidence contained in the depositions of McKnight & Spear, as to the partnership of the Kyles, and as to the goods purchased from Wells & Miles, &c., that of Spear being hereafter referred to, and of certain papers, the defendant obtained a verdict under the direction of the judge before whom the cause was tried, which the court set aside. On the next trial, the same evidence having been given by the plaintiffs as on the former trial (the defendant on neither trial offering any testimony), the judge was requested by defendant’s counsel to instruct the jury:</p> <p>1. That there was no evidence of any acknowledgment and new promise by defendant, sufficient in law to defeat the pleas of the Act of Limitations.</p> <p>2. That the alleged acknowledgment and new promise were not made to the plaintiffs, or their agent known as such, and must, therefore, be disregarded.</p> <p>The request so made, Findlay, J., refused to comply with, but instructed the jury, 1. That there was evidence of an acknowledgment and new promise by defendant sufficient in law to defeat the operation of the statute of limitations. 2. That it was no cause in law for disregarding the evidence of such acknowledgment and new promise because not made to the plaintiffs or their agent known as such.</p> <p>Verdict was rendered in favor of the plaintiffs for $1639.48 damages, and six cents costs.</p> <p>The testimony of Alva Spear was mainly relied on to take the case out of the statute. It was, as to that matter, substantially:— That said Spear, a resident of New York, was on a tour of business to the south in 1841. That in December of that year, he called on James Kyle at Fayetteville, N. C., to collect some notes which he (Spear) held against Kyles & Co.</p> <p>That in the course of conversation with Mr. Kyle about his, (Spear’s) claims, Mr. Kyle said, “ that Kyles & Co.- owed a debt to Wells & Miles of about eight hundred dollars, which he intended to have settled within twelve months from that date.”</p> <p>That he (Spear) had not called Mr. Kyle’s attention in any way to the claim of Wells & Miles. That he had not with him the note of Wells & Miles, nor any authority at that time to collect it. That he thought he carried out the note at the request of Wells & Miles when he went to Fayetteville in 1836, but did not then see Mr. Kyle, and his impression was, but he was not positive, that he left the note with Mr. Henry, an attorney.</p> <p>That in the course of a general conversation, Mr. Kyle said Wells’s note was in the hands of Mr. Henry; and Mr. Kyle further said that only a part of the goods bought of Wells & Miles came to Fayetteville, and went on to say, that he (Kyle) believed the goods belonged to Wells and not to his consignors. I (Spear) mean the goods for which he was indebted.</p>

<p>The case was brought up from the Nisi Prius, Philadelphia.</p> <p>This was an action brought by James Steele and George Mul-' hollan, lately trading as James Steele & Co., v. The Franklin Fire Insurance Company of Philadelphia. The claim was made by plaintiffs in consequence of notice from the consignees that they held the plaintiffs liable for the loss of the cotton referred to in the case.</p> <p>The plaintiffs, Steele & Co., were merchants, factors, or commission merchants, and also members of a general forwarding and transportation line, composed of themselves and other firms, between the cities of Pittsburgh and Philadelphia, and on the 30th day of April, 1842, effected an insurance with the defendants, the Franklin Fire Insurance Company, under policy No. 38,265, in the sum of $10,000, “ On merchandise generally, contained in their brick warehouse, situate on the south-west corner of Broad and Cherry streets, Philadelphia, for account of whom it may concern,” for one year. The policy was duly renewed from time to time by endorsements on the policy; and on the 9th day of June, 1845, an additional insurance of $10,000 was effected for nine months, at a premium of $30, also endorsed on the policy.</p> <p>On the morning of the 7th September, 1845, a fire occurred in the plaintiffs’ warehouse, in Philadelphia, by which, amongst other property, 185 bales of cotton, then in the warehouse, were burnt. There was but one lot of cotton in the warehouse, that represented by the bills of lading, which consisted of 224 bales, of which 39 were saved, leaving a balance of 185 bales. The bales saved arrived on Saturday evening, late, the day before the fire. This cotton was the property of George Breed and Charles Brewer, who had forwarded the same, consigned to S. & W. Welsh, by the transportation line, of which the plaintiffs were members, from Pittsburgh to Philadelphia, at which latter place they arrived, 100 bales thereof prior to, or on September 2, 1845, and the remainder subsequently.</p> <p>Previous to the transportation of said goods as aforesaid, said Breed & Brewer, or one of them on behalf of both, had applied to the agent of the defendants in Pittsburgh, to extend the policy effected on said cotton then in Pittsburgh, to cover it whilst in any warehouse in Philadelphia, which said agent refused to do.</p> <p>The transportation line, on receipt of the goods of Breed & Brewer for transportation, gave the bills of lading before referred to. In the receipt for the cotton the dangers of navigation, fire, &c., were excepted; but the cotton was to be delivered to the consignees, in Philadelphia, “ with privilege of storage, in Philadelphia, free of charge until sold.”</p> <p>Messrs. 8. $ W. Welsh, of Philadelphia, to whom the cotton was consigned by Breed & Brewer, effected an insurance on said cotton in the office of The American Insurance Company, from time to time, on being notified of the arrival of the same, except upon the last lot of 150 bales, which arrived before and after the fire, and of which no notice of arrival before the fire was given to them. On these insurances by the American Insurance Company, the value of 125 bales has been paid to S. & W. Welsh, the agents of Breed & Brewer, leaving 60 bales of their cotton, for which they have not leen paid.</p> <p>The plaintiffs, after the fire, submitted several statements of loss, by which the property destroyed in their warehouse was classified under different heads. Of their damage, the amount, so far as the present controversy is to be considered, has been paid, with the exception of the value of the 60 bales of cotton belonging to Breed k Brewer.</p> <p>The plaintiffs claimed under their declaration, which contained three counts:</p> <p>1. That part of the goods destroyed by fire were held by them as of their own property, and the remainder in trust; and that the whole were insured; and that the damage from loss to the whole was $20,000.</p> <p>2. That one hundred and eighty-five bales of cotton, the property of Breed k Brewer, held by the plaintiffs in trust for them, were destroyed by fire, whereby the said plaintiffs for account of said Breed k Brewer, sustained damage, and by reason of the non-payment thereof for account of said Breed k Brewer, are damnified, &c.</p> <p>3. Same as second count, but for sixty bales only.</p> <p>The defendants pleaded generally, with leave to give the special matter in evidence.</p> <p>The questions presented for the consideration of the court were:—</p> <p>1. Whether the defendants, under the foregoing circumstances, are liable at all to pay the plaintiffs for the loss by fire to the cotton of Breed & Brewer.</p> <p>2. Whether, under any view of the case, they can be held liable beyond the value of. sixty bales of cotton, that being the whole loss Breed k Brewer have sustained.</p> <p>On the trial, D. B. Peacock, a witness, testified, inter alia, that he had been in the employ of the plaintiffs; that the plaintiffs, Steele k Co., were commission merchants; and were also members of the firm of the Pennsylvania and Ohio Transportation Company. They occupied the building for the business of the Pennsylvania and Ohio Transportation Company, as well as for their own. The fire occurred on the morning of September 7, 1845, about 2 o’clock. A quantity of goods were destroyed. Of the cotton covered by the bills of lading, there was 185 bales of cotton burned; there were 224 bales in the storehouse, and 185 burned; there were 39 bales saved; the greater portion of the last came in late on Saturday evening, and the cars were not disturbed, till pulled out of warehouse. Some portion of the cotton saved was in these cars, and ten or eleven bales saved beside. It was a Tcnown fact generally, that we had an insurance on goods for the benefit of our customers. I mean of all the customers in business doing business with plaintiffs, whether as a firm or members of the line.</p> <p>Cross-examined.—Steele & Co. did commission business besides transportation. The other firms of the line had no interest in our commission business; plaintiffs had goods of different kinds on commission for sale; flour and different kinds of produce; our stock on commission was not very large at the time of fire. It would be very rare for us to have ¡§10,000 worth of produce for sale during 1844 and 1845. Doing a transportation business, we did not have this much produce. We generally gave consignees of goods transported by the line, notice by furnishing a bill of freight. After the lot of goods transported was completed and ready for delivery, it was the custom to give notice to owners. It would not be customary to give notice in this instance, for the cotton was shipped with privilege of storage. When goods so shipped, not customary to give such notice. There was a difference between such cases and' where there was no agreement as to storage, &c.</p> <p>John Welsh, jun., was called on the part of defendants.— Being cross-examined, the witness said: The insurance was made in our names, in the American Fire Insurance Company; it was by endorsement on the policy. The words were, “ on account of whom it may concern.” (The certificates of the Secretary of the American Fire Insurance Company were here shown the witness, and given in evidence.) In consequence of this, we received the excess over one hundred bales. We were not instructed to release the claim against the Franklin Fire Insurance Company. We did not give up any claim; we held our claimon a 11, whoever it might rest on. Whatever instructions Breed & Co. gave us, were in writing. We invariably insure goods consigned to us, whether in our own warehouse or in the warehouse of others. With or without instructions to that effect, we would have made further insurance on the arrival of the remainder of the three hundred bales. We insure on each parcel, as we are notified of arrival. The correspondence, the consignment of cotton in June, 1845, was the first business transaction we ever had with Breed & Brewer.</p> <p>And being re-examined, the witness said: There were no instructions given us by Breed & Brewer to insure.</p> <p>Bell, J., charged the jury to find a verdict for the plaintiffs, in the sum of $7508.55, subject to the opinion of the court, whether judgment should be entered for the plaintiffs for the said sum of $7508.55, the value of one hundred and eighty-five bales of cotton destroyed by fire; or for the sum of $2439.89, the value of sixty bales of cotton destroyed by fire; or for the defendants, notwithstanding the verdict.</p> <p>The jury rendered their verdict accordingly for the plaintiffs, for the sum of $7508.55, if the court should be of opinion the plaintiffs are entitled to recover for the value of one hundred and eighty-five bales destroyed; but should the court be of opinion that plaintiffs are only entitled to recover the value of sixty bales, the jury find for the plaintiffs $2439.89, the whole subject to the opinion of the court on the points reserved. Judgment to be entered for the defendants, non obstante veredicto, should the court be of opinion the plaintiffs are not entitled to recover any amount.</p> <p>And afterwards, March 16, 1850, the court ordered judgment to be entered for the plaintiffs for $7508.55, and judgment was entered accordingly.</p> <p>It was assigned for error: 1. That the judge erred in ordering judgment to be entered for the plaintiffs for the sum of $7508.55 on the points reserved.</p> <p>2. The judge erred in not directing judgment to be entered for the defendants, notwithstanding the verdict.</p>

<p>This case came up from the Nisi Prius.</p> <p>It was an action of assumpsit brought to December Term, 1848, by Thomas Gillingham against Joseph Gillingham, to recover, with another note which was not disputed, the amount of a promissory note which was over nineteen years old. This note was as follows:—</p> <p>$400. Philadelphia, July 28, 1829.</p> <p>Twelve months after date I promise to pay to Thomas Gillingham, trustee, or order, four hundred dollars without defalcation, with interest from this date, for value received.</p> <p>Joseph Gillingham.</p> <p>Received 4th M. 21, 1846, of Joseph Gillingham, two hundred dollars, on account. Thomas Gillingham.</p> <p>Interest on the within note, sixteen years, seven months, and twenty-four days, $399.60</p> <p>Cash received as above, 200.00</p> <p>Balance of interest now due and unpaid, $199.60</p> <p>There was also an assignment of the note on 27th day of Sep- ' tember, 1846, by Thomas Gillingham, trustee, to Robert P. Gillingham. It was signed by Thomas G. Gillingham, Trustee. Sealed. Reassigned November 18, 1848.</p> <p>The principal ground of defence was the statute of limitations. The testimony mainly relied upon to take the claim out of the statute was that of Dr. W. II. Gillingham, who said, “ within two years, Joseph (the defendant) called on me several times about a settlement between him and Thomas. In reference to the note in suit, he said, “ I acknowledge I owe the money; I acknowledge I got the money of Thomas, and I intend to pay it. But it was not Thomas’s money. It is my impression that legally it is Stacey’s money. Equitably it is John’s.”</p> <p>His Honor, Bell, J., instructed the jury, that if they believed Dr. Gillingham, the acknowledgment of debt and promise to pay is sufficiently plain, distinct, and unambiguous, to take the case out of the operation of the statute.</p>

<p>1. A waiver, by an endorser of a negotiable note, of notice of protest, puts the endorser in the same situation as if the protest had been made and notice of it duly given to him; and where there is no contradictory evidence as to the waiver, it is proof of demand and refusal.</p> <p>2. Where the time of payment of a note has been extended beyond maturity by the agreement of the endorser, an averment in the declaration, in a suit against the endorser, of protest of the note and notice to the endorser, is a formal part of the declaration, and will be considered as proved.</p> <p>3. The endorser of a protested negotiable note, has no right to require the holder to sue the drawer, under the penalty of the endorser being discharged in case of non-compliance: it is his duty to take up the note.</p>

Quantin v. L. W. Buffington, to recover $165, the price demanded for two sofas which Quantin had made under an order from Buffington. On the trial, the plaintiff below proved his original entries, charging two sofas to defendant below, and closed his case. Defendant below then offered Benjamin Buffington, who testified that “ upon the day of the delivery of the sofas to defendant, he returned the sofas to the plaintiff.

J. Eorker and E. Haines, trading as Eorker & Haines, brought suit against B. H. Bartol, to December Term, 1849, on two promissory notes, one dated in 1847, and one in 1848.

<p>A sale was made of hay and grain, part being cut but the grain not thrashed, and another portion in the ground, and also other personal property, the precise quantity of which was not known, but it was sold for a price agreed upon after an estimate made, the quantities not being “ guarantied to be accurate and the amount of the price agreed upon was paid to the vendor. It was held, that each party having equal means of knowledge as to the quantity, and neither relying upon the estimate by the other, the price paid being less than the estimated amount, proof that the quantity sold fell short of the estimated quantity, was not evidence of fraud on the part of the seller; and that, in the absence of fraud or warranty, the purchaser could not recover back from the vendor a part of the price paid proportionate to the deficiency.</p>

<p>1. It is the duty of an agent to give to his principal timely, notice of every fact or circumstance which may render it necessary for him to take measures for his security; and an agent for the investment and transmission of money is liable for every default of his sub-agent which occurs during the period in which he kept his principal in ignorance of the destination of a draft purchased by him on account of his principal.</p> <p>2. A firm in New Orleans received from, and as the agent of a bank, paper payable in that place, with instructions to invest the proceeds in bills payable ’in New York or Philadelphia. They invested a portion of them in the purchase of a draft on persons in New York, and forwarded it to a house there for collection, but through mistake advised the bank that they had transmitted it to a firm in Philadelphia. On the day of the receipt of the letter, the bank drew on the Philadelphia firm, for a part of the amount of the draft, with directions to sell the draft alleged to have been received by them. Subsequently, the bank received from the New York firm an acknowledgment of the receipt of the draft from New Orleans, and on the same day the bank drew on the New York firm for nearly the amount of the draft; but before the date of that letter, the New York firm had stopped payment.</p> <p>It was held, that the New Orleans firm were liable to the ’bank for the amount of the draft in dispute.</p>

This case came up from the Nisi Prim. It was a suit by Keen v. Keyser, on a joint and several bond. John E. Keen, in October, 1835, became surety to the sheriff of this county for one of his deputies, David Scattergood, in the sum of $6000. To secure himself against the loss which subsequently ensued, Mr., Keen endeavored to obtain a bond of indemnity to himself, to be executed by six obligors, among whom were Peter A. Keyser, who signed the bond, and Jacob Culp, who did not.

<p>This case came up from tbe Nisi Prius.</p> <p>This was an action of assumpsit for money had and received, brought in the Nisi Prius to July Term, 1845, No. 201, by The Philadelphia Oontributionship for the Insurance of Houses from Loss by Fire against Edmund J. Yard, collector of taxes for the county of Philadelphia, to recover back the sum of $2111.43, paid by plaintiffs to defendant, under constraint of a distress upon their goods, and under protest and notice. The suit being called for trial, a case stated was submitted to the court.</p> <p>It was agreed that the case stated for the opinion of the court was to be considered as if the facts had been found by a special verdict; and the judgment of the court thereupon to be subject to removal to the court in banc, in the usual method.</p> <p>It was, inter alia, stated, in the case agreed upon: That, on the 31st day of October, 1844, the commissioners of the county of Philadelphia issued their precept to the assessors of the county, directing them to make assessments.</p> <p>The assessors, under the direction of the said precept, addressed certain inquiries to the taxables.</p> <p>No inquiry seems to have been made of the taxables as to their property in banks, insurance, or other companies incorporated by the state of Pennsylvania, nor of their loans to any county, city, borough, or district in the state, otherwise than in the foregoing inquiries.</p> <p>On the 15th day of February, 1845, the county commissioners published a statement of the value of property assessed for state and county purposes, and of trades, &c., and moneys at interest, as returned by the assessors. It was stated that “ so much of said Act (29th April, 1844) as provides that the whole amount of taxes assessed in each ward and township shall be furnished, cannot be complied with, so far as regards the county tax, inasmuch as the rate per centum has not been fixed by the county board. The statement was dated February 15, 1845.</p> <p>The assessors, so far as appears, took an account for state taxation only, of such of the objects referred to in their precept as the state assesses and collects by or through the county commissioners, assessors, and collectors, and not of any of the objects which the state assesses or collects by and through other agents, viz., the cashiers or treasurers of incorporated companies, or of counties, cities, boroughs, or districts. The amount of the state tax for 1845, received by the state treasurer from the county of Philadelphia, through the cashiers or treasurers of the institutions last referred to was, from</p> <p>Banks, insurance, and other companies, . . $47,077.22</p> <p>Loans of the corporations of Phila. county, . 11,826.51</p> <p>$58,903.73</p> <p>The form in which the assessment was made by the assessor appears to have been as follows: one column of the assessment is headed county and the other state. In the county column is inserted the assessment for office or occupation, real estate, horses. In the state column is inserted mortgages, or moneys at interest, real estate again, that object being liable to both state and county tax. Mortgage and moneys at interest are not introduced into the county column, as being valued or assessed for county purposes.</p> <p> Form of Assessment. </p> <p>Extract from assessment books of Dock Ward, for 1845:—</p> <p>Philadelphia Contributionship Comp.: County. ■ state.</p> <p>Money at interest at 5 per cent., . . $ 5,670</p> <p>Mortgages at 5-|- per cent., . . . 15,000</p> <p>“ “ 6 « ... 401,616</p> <p>For their estate,.....$25,000 25,000</p> <p>N. B. $ 5,670</p> <p>15,000</p> <p>401,616</p> <p>$422,286</p> <p>J per cent, on this is $2111.43, the amount of tax in controversy.</p> <p>No notice was given by the assessors to the taxables, or by the commissioners to the assessors, of the rate of assessment upon any description of personal property.</p> <p>The notice given by the assessors of Dock ward to the defendants, specified the 20th of March, 1845, as the day of appeal, which was between two and three months before the rate was fixed. It was a notice that the defendants were rated for real estate, $25,000; money at interest, $5670; money loaned on mortgage, $401,616.</p> <p>On the 5th of May, 1845, the county commissioners submitted to the county board a schedule of the probable liabilities of the county for the year commencing July 1,1845, and which schedule closes as follows:—</p> <p>“ The amount of rates upon which the per centum is to be levied, is $97,500,000.”</p> <p>On the 13th day of May, 1845, at a meeting of the county board, the following resolution was adopted:—</p> <p>“Resolved, That the county commissioners he requested to furnish the county board the corrected amount of valuation of rates on real estate, the amount of personal tax assessed, the corrected amount of furniture, carriages, moneys at interest, as adjusted since the day of appeal, and all other subjects made taxable for county purposes for each ward, district, and township, in the city and county of Philadelphia, by the Act of 29th April, 1844, entitled ‘ An Act to reduce the state debt, and to incorporate the Pennsylvania Canal and Railroad Company.’ ”</p> <p>The commissioners replied, suggesting their inability to give accurate answers to the queries proposed, because the duplicates of the assessments were unfinished, and furnishing a statement of the assessment of real estate, horses and cows, furniture, carriages, emoluments of office, watches ($5852), and moneys at interest.</p> <p>June 12.—It was resolved, “ That the rate of taxation be fixed at fifty cents in every one hundred dollars of the valuation of property taxable for county purposes.”</p> <p>The defendant, as collector of taxes for Dock ward, presented to the plaintiffs a bill for $2111.43, being the county tax of-fifty cents on the hundred dollars, upon $422,286 mortgages and moneys at interest. The plaintiffs refused to pay this county tax, except under compulsion; and the collector having communicated his determination to distrain the chattels of the plaintiffs therefor, the plaintiffs paid the same under protest and notice, and brought the present action to recover the same back.</p> <p>The question for the opinion of the court is, whether under the foregoing facts the plaintiffs were liable in law to pay the said sum of $2111.43, claimed by the defendant as a county tax as aforesaid.</p> <p>If the court shall be of opinion that the plaintiffs were not liable to pay the said sum, then judgment to be entered for the plaintiffs for the said sum with interest, from the date of payment.</p> <p>If the court shall be of opinion that the plaintiffs were bound to pay any portion of said tax, then judgment to be entered for plaintiffs for the difference between such portion and the amount paid, with interest from the date of the payment aforesaid.</p> <p>If the court shall be of opinion that the plaintiffs were legally bound to pay the said sum, then judgment to be entered for' the defendant.</p>

<p>1. In an action by an endorsee of a bill of exchange against the acceptors, an averment in the na/rr. that the said H. & H. “ to whom, or to whose order the payment of the said money in the said hill of exchange specified, was requested or directed to be made, afterwards endorsed it to the plaintiff,” is a substantial averment that the bill was payable to their order, and is sufficient after verdict. And where it appeared from the hill of exceptions that the bill was actually payable to the order of H. & H., the reversal, on the ground of insufficiency of the allegation, would be contrary to the truth of the case as apparent from the record.</p> <p>2. In a suit on an instrument of writing, the instrument need not be set out in its precise words ; it is sufficient if it be stated according to its legal effect.</p> <p>3. It is not error to refuse to permit the defendant to introduce his defence by cross-examination of the plaintiff's witness as to a matter to which the witness had not been examined.</p> <p>4. The plaintiffs, in an action against the acceptors of a bill of exchange, having proved, by one of the payees of the bill, merely its endorsement by the payees, it was not competent for the defendant to prove by another witness, the declarations by the said payee, made after the payees had parted with the bill, in relation to acceptances, by the defendants, of paper payable to the payees.</p>

This was a suit by Lewis Cooper v. Matthew Pope Mitchell and Benjamin N. Wynkoop. The narr. was in assumpsit. The 1st count was on a promissory note made by defendants, dated October 3, 1846, at ninety days, for $290.46, payable to order of defendants, and by them endorsed to plaintiff.

<p>Error to the District Court, Philadelphia.</p> <p>Tbis was an ejectment in the court below, to recover a lot of ground at the corner of Coates and Tenth street, in the county of Philadelphia, brought by Nicholas Harris against Edward B. Grarrigues and others, and defended by Quervelle, who claimed to be the owner of the lot. The plaintiff below claimed to have become the purchaser of the lot at a sheriff’s sale on the 1st of January, 1849, as the property of Maurice Hiatt. To support his claim, the plaintiff gave in evidence a duly certified copy of the record of a transcript of a judgment filed in the Common Pleas of Philadelphia county to June Term, 1849, in which Harris was plaintiff, and Hiatt defendant, for the sum of $72.80, by which record it also appeared that the right, title, and interest of Maurice Hiatt, in the premises in dispute having been levied upon under said judgment, were sold under a venditioni exponas issued December the 8th, 1848, to Nicholas Harris, on the 1st of January, 1849. On the part of Harris, the plaintiff below, and defendant in error, it was alleged that the claim of Harris, derived through the sale and sheriff’s deed, was based upon the allegation that Maurice Hiatt, who at one time was a man of great fortune, and owning large tracts of land in the states of New Jersey and Pennsylvania, and several houses and lots in the city and county of Philadelphia and elsewhere, procured the plaintiff to enter into bonds with him as co-security for the faithful performance of the trust of Charles Parmentier, assignee, &c., in the sum of about $10,000. That so soon as it was ascertained that the said assignee had made default, and he was likely to he called upon for the payment of the deficiency, it was discovered that he was largely indebted to othersj in a sum not less than $18,000, as appears by the records of the county, and other evidences offered before the court.</p> <p>.That to defeat the recovery of these claims against him, he disposed of all his real estate, and conveyed it directly or indirectly to his father-in-law, Anthony Gr. Quervelle, the landlord of the present plaintiff in error, and who alone defended the suit.</p> <p>The claim of the plaintiff was therefore founded:—</p> <p>1. On the ground that Maurice Riatt had caused this property to be conveyed to his father-in-law without consideration, and for the purpose of defrauding his creditors, in violation of the provision of the statute of Elizabeth.</p> <p>2. That Anthony Gr. Quervelle having, received or claimed the proceeds of sale, as a judgment creditor of Maurice Riatt, as whose property it was sold, he was estopped from denying title in Riatt, and from claiming it to himself.</p> <p>The main question submitted to the jury was, whether the conveyance was fraudulent as to creditors. Having given in evidence, the sale under the venditioni exponas, the plaintiff below offered in evidence the auditor’s report, distributing the fund raised by said sale of Riatt’s interest, “ to show that Quervelle, the landlord of the defendants, claimed part of the fund raised by said sale as a judgment creditor.” This was objected to on the part of the said Quervelle, “ until it was shown that Riatt had some interest in the property,”—the admission of it by the judge was the subject of the first bill of exception.</p> <p>The plaintiff below then gave in evidence the sheriff’s deed for the premises in dispute in this action, sold as hereinbefore stated, acknowledged on the 6th of January, 1849; and offered Isaac C. Jones to prove that he, Jones, sold a farm in New Jersey to Riatt, to be followed by proof that Riatt gave this identical farm to Jonathan B. Grier for the property in dispute. This was objected to on the part of Quervelle, and the admission of it formed the subject of the second bill of exceptions.</p> <p>The plaintiff below then offered in evidence a deed dated 6th May, 1843, from Maurice Riatt and wife to Robert B. Grrier, for the farm mentioned in the deed from Jones to Riatt, with an offer to show that this particular farm was given to Grier for the property in dispute in this action. The objection to it and the admission of this deed, proved by a subscribing witness, and then read to the jury, formed the subject of the third bill of exceptions.</p> <p>• The plaintiff below then offered in evidence the deposition of Grrier, the admission of which, notwithstanding the objection on the part of Quervelle, formed the subject of the fourth bill of exceptions.</p> <p>The plaintiff below then offered in evidence a book, alleged to be the book of docket entries, and a paper alleged to be the tram script filed in the office of the Court of Common Pleas of Philadelphia county, which were offered as being the record in the case of Salisbury v. Riatt, September Term, 1838, number 100. The objection to their reception on the part of Quervelle was, that there was no certificate by the proper officer that they constituted the whole record, nor were they produced or proved by the proper officer, having charge of the records of that court. The same objection applies to the reception of similar papers admitted afterwards by the court, and which form the subject of the 8th, 9th, 10th, 11th, 12th, and 13th bills of exceptions.</p> <p>The records last referred to, were of judgments entered in the District Court and Common Pleas, Philadelphia, in favor of various creditors v. Maurice Riatt, and were offered to show indebtedness in Riatt at the time of his conveyance to Quervelle, the defendant.</p> <p>The reading of “an abstract of a mortgage, by Weaver to Quervelle, 14th June, 1843,” for some land in New Jersey, was offered in evidence. It was objected to on part of defendant, but was admitted.</p> <p>Verdict was rendered for the plaintiff, Harris.</p> <p>It was assigned for error:—1. The plaintiffs in error assign “general errors,” and the following specific errors, to wit:—2. Because the court permitted the counsel for the plaintiff in the court below to read to the jury the auditor’s report of the distribution of the fund in Harris v. Riatt, Common Pleas, June, 1843, No. 131. 3. Because the court admitted the testimony of Isaac C. Jones, set forth in the second bill of exceptions, to go to the jury, and also permitted the plaintiff’s counsel to read in connexion with it, upon proof by said Jones, the deed of September 8, 1838, Jones and wife to Maurice Riatt, also set forth in the said bill of exceptions. 4. Because the court permitted the plaintiff’s counsel to read to the jury the deed from Maurice Riatt to Jonathan B. Grier, set forth in the third bill exceptions. 5. Because the court permitted the whole deposition of Jonathan B. Grier to be read to the jury. 6. Because the court permitted the entries, transcript, and papers offered as the record in Salisbury v. Riatt, Common Pleas, September Term, 1838, No. 100, to be read to the jury. 7. Because the court permitted the “ certified copy” of the abstract of a mortgage, Daniel J. Weaver to Anthony G. Quervelle, 14th June, 1842, to be read to the jury.</p> <p>The 8th, 9th, 10th, 11th, 12th, and 13th assignments related to the admission in evidence of docket entries and papers of certain judgments in the District Court and Common Pleas in favor of various creditors against Maurice Riatt.</p>

<p>Error to the District Court, Philadelphia.</p> <p>McDermott brought an action of trespass, in the District Court for the city and county of Philadelphia, against McMichael, the sheriff of Philadelphia county, and Alsop, for seizing and selling his goods as those of Edmund Laguerenne, on the 26th of February, 1845, at the residence of Laguerenne, near German-town, under a writ of fieri facias issued out of said court, at the suit of Quervelle, who had obtained a judgment thereon against said Laguerenne, on the 24th of December, 1844, for $273.80. To prove his property in the goods so seized and sold, McDermott gave in evidence a judgment in the said court confessed to him by Laguerenne on the 11th September, 1844, on bond and warrant' of attorney, dated that day, in the sum of $8200, conditioned for the payment of $4100 immediately; a fieri facias issued thereon, and a sale by Killion, a deputy of McMichael, then sheriff of Philadelphia county, of a number of articles, the personal property of Laguerenne, on the 26th of September, 1844, at Laguerenne’s residence near Germantown, among which were the articles, for seizing and selling which this action was brought, including all the articles of household furniture bought by Laguerenne from Quervelle, for the price of which Quervelle’s said judgment was obtained. This sale on the judgment of McDermott, and the proceedings at that sale, were proved, on the part of the plaintiff, by Killion, who testified as follows:—</p> <p>“I was in the sheriff’s office in 1844; Mr. McMichael was. sheriff; I was his deputy. I remember the sale of Laguerenne’s personal property. I sold his personal property. I signed the return.” The witness being shown a bill of sale, further testified' “ The handwriting of the body is my brother’s—he clerked the sale for me. The receipt and the heading is in my handwriting. The plaintiff purchased the property at that sale.”</p> <p>The bill and receipt was then read.</p> <p>Being cross-examined by the counsel of Anthony G. Quervelle, who took defence in this action, the witness said:—</p> <p>“ The sale took place at Laguerenne’s residence, near Mount Airy, two or three miles from Germantown. It took place in the morning. The plaintiff was present, and the two Mr. Killions. Three, four, or five that I don’t know, besides the clerk. Two or three of them were women, one of them Miss McDermott. The sale was directed a week before, and did not take place. The sheriff keeps a book of sales of personal property.”</p> <p>A notice, dated February 21, 1845, from McDermott, by his attorney, was served upon the deputy of the sheriff. It was stated in it that the property levied on belonged to McDermott, and unless it were released, the sheriff would be held responsible for damages.</p> <p>On the part of Quervelle, it was contended that the sale under the execution of McDermott was fraudulently and secretly conducted by the management of the plaintiff McDermott, who was Laguerenne’s brother-in-law; that no advertisements of the sale were put anywhere; that though near to a village it was not known there; to the servants of the family it became known on the day of sale; that no one but the defendant and his family, except the plaintiff, and Killion, and his brother who was the clerk, were present ; that no bell was rung, as usual, to call in purchasers, and that no one bid or purchased but the plaintiff, who was present during the whole sale, and who left the articles in Laguerenne’s possession. That at the sale under the writ of Quervelle, there was a good attendance, and it was generally known, from being advertised in the handbills put up in the neighborhood, stating it to be Laguerenne’s property, and the ringing of the bell. Mary Scantling was examined on the trial. She testified, inter alia, that she lived at Laguerenne’s at the time of the first sale. There were several present—she knew McDermott, Mr. Laguerenne and family, but not the rest—she recollected of no advertisement being put up. That she did not hear any bell. That she first heard that there was to be a sale, on the night before it took place— that she heard them selling the goods, and heard Mr. McDermott’s name cried out several times—did not hear the name of any other person called out. The defendants further offered to show the in-' debtedness of Laguerenne, by the production of actions and judgments against him, and his liability to immediate execution at the suit of Leger, whose judgment was postponed for three months by the return of Killion to the first writ issued against Laguerenne; but this evidence was rejected. The right to call Killion and to use him to rebut the defendant’s case, was also ruled in favor of the plaintiff by the judge.</p> <p>On the part of McDermott it was alleged that the handbills for the first sale were printed and delivered to the poster employed in the sheriff’s office: it was not, however, proved that they were put up.</p> <p>The counsel for the plaintiff (the defendants having closed their case) offered rebutting testimony to show that plaintiff gave express directions to make the money; that it was not customary to insert the name of the defendant in sheriff’s advertisements of personal property; and called John Killion, who was objected to by the counsel 'for defendants, as interested, having given bond to McMiehael, one of the defendants, for the proper and faithful performance of his duty as deputy sheriff, and the said Killion stating to the court that he had given such a bond. The court admitted the witness to testify, and the counsel for defendants excepted.</p> <p>Such evidence was given by Killion; and Young and Alexander were examined, and testified that it was not usual in Philadelphia county to insert the name of the defendant in the execution in advertisements of sheriff’s sales of personal property.</p> <p>The cause being closed on both sides, the judge charged the jury, inter alia, as follows:—</p> <p>“ Personal property sold at a sheriff’s sale may be left by the purchaser in the defendant’s possession; but it is different in the case of a private sale. The sheriff’s sale is a public sale made by the officer of the law. The defendants, however, in this action may show that the sale to McDermott was a fraudulent one, but they must show that he, the purchaser, was party to the fraud; not only that it was not fairly and properly conducted, but that the plaintiff was party to the fraud, for the sheriff’s fraud alone in not giving proper notice will not affect the sale. The question is, was the plaintiff a participant in it ? I have looked at the evidence, and must say that there is no evidence of any participation ih it by the plaintiff. Mary Scantling is the only person who mentions him, and we have no evidence that he made use of any means to prevent the sale being known, or of his doing any act in relation to it. I see in her testimony no evidence of Mr. McDermott’s knowledge of, or participation in, the alleged fraud; and your verdict should be for the plaintiff, for merely compensatory damages, which are measured, in general, by the value of the property, and interest thereon from the time of taking.”</p> <p>To which portions of the said charge, the counsel for the said defendants excepted.</p> <p>Verdict was rendered for the plaintiff.</p> <p>It was assigned for error:—1. That the court below permitted the plaintiff to give in evidence the notice, dated February 21, 1845.</p> <p>2. That the court below would not permit the defendants’ counsel to give in evidence the several judgments of Leger, Meche, Johnson, Yglesias, and others.</p> <p>3. That the court below permitted John Killion to testify for the plaintiff, though he was interested, having made the sale upon which plaintiff claims the goods; for taking which this action was brought against the sheriff, whose deputy he was, and to whom he had given bond for the faithful performance of his duty.</p> <p>4. Because the court permitted the plaintiff’s counsel to give by John Killion, Alexander, and Young, as rebutting, the testimony set forth in the fourth bill of exceptions.</p> <p>5. That the court charged the jury that there was -no evidence of any participation by the plaintiff in the fraud alleged to have been committed at the sheriff’s sale; and that the testimony of Mary Scantling contained no evidence of his knowledge of or participation therein; and that their verdict should be for the plaintiff.</p>

This was an issue to try the right of property to certain household furniture, levied upon by the sheriff under a fi. fa. at the suit of Julius Stern against Elizabeth Smith and Thomas Smith, co-partners, and claimed by Eliza Smith and others, daughters of the said Elizabeth, by virtue of a bill of sale from her to them, dated September 16, 1848. The levy was made ten months afterwards, viz., on the l3th July, 1849, under a judgment obtained in May, 1849.

This was an action by Charles F. Bronson against James Bell, to recover one half ‘of the cost of a party-wall in Philadelphia, which was used by Bell, but was claimed by Bronson under a conveyance of the house, of which it formed a part, from the first builder. The conveyance to Bronson was dated 7th June, 1847. The wall, however, was cut into by direction of Bell, after the passage of the Act of 1849. On the trial, the court below reserved the two following points: —1.

<p>This case came up from the Nisi Prius.</p> <p>It was an action on the case by Ann Repsher v. Thomas Wattson, Thomas B. Wattson, and John Ricketts, trading as Thomas Wattson & Sons, to recover damages for an injury sustained by the plaintiff, as was alleged on her part, by the negligence of the defendants’ servant. There were three counts in the declaration; in the two first negligence by the defendants’ servant in the management of a horse and dray, was alleged; in the third it was charged that the horse was of a fractious and restive disposition, and disposed to fright and shy when driven upon the wharves on the Delaware; that he was carelessly and improperly driven and directed, and was led to the wharf at or about the time when a vessel was nearing the wharf, and other objects were passing calculated to frighten him; so that, through the negligence, carelessness, and improper conduct of the defendants by their servant, the horse took fright, and the horse and dray struck the plaintiff, &c.</p> <p>The plea was, Not guilty.</p> <p>On February 11, 1847, E. Bull drove a dray belonging to the defendants, loaded with some barrels of ashes, &c., which he had brought'from the bakehouse of defendants, and was about to empty into the Delaware, above Vine street. Messrs. Wright & Nephew were the owners of, and were engaged in widening a wharf there situate, by filling up the dock on the north side of it. Bull had obtained leave from them to deposit earth, &c., in that dock. As there were numbers of others doing the same thing, Wright & Nephew had cleared a track on their wharf, by placing the cranes, &c., on it on either side. The wharf was covered with a shed, which was closed up on the north side; down this track the carts were driven, until they came to an opening made on the boarded side of the shed, upon the upper or northern edge of the wharf. There they stopped, the horses’ heads turned down the river, and the tail of the carts, &c., backed through the opening, about six feet wide, and the contents cast into the dock. There stood a crane at the opening, and against the boarded shed; on the exposed place the plaintiff seated herself to wait, as she said, for some vessel, from which she expected to procure clothes from the sailors, which it was her occupation to wash. Bull, the defendants’ servant, drove down the track marked out for him, sitting on his dray, with the x’eins in his hands. He drove past the plaintiff, some feet from her, and when within a few feet of the place where he would have stopped the horse and -turned the dray, in order to back to the opening, the horse shied, and suddenly threw himself round, so as to place his head on the southern or lower side of the wharf. He stood with his feet on the edge of the whai’f, and his head over the water. Up to this time, the driver had remained on the dray; he sprang to the horse’s head, and held him still. No one saw the dray strike the woman, but it is supposed that the long ends or sloats of the dray, in wheeling round, struck the plaintiff, crushed her leg, perhaps against the crane on which she sat, and threw her upon the earth which had partially filled up the dock. One witness saw her falling into it. She was severely injured, and confined a long time to her bed.</p> <p>It was stated that, though several persons who were on the wharf at the time were examined, no one saw the accident, and that the testimony of Bull was the only evidence as to how it occurred.</p> <p>For this injury the plaintiff sued the defendants, as employers of Bull, on the ground of the negligence of their servant, as is alleged.</p> <p>When the plaintiff’s evidence was closed, the defendants moved for a nonsuit, on the ground that the plaintiff had not shown negligence in defendants’ servant. But the judge refused the nonsuit.</p> <p>He charged the jury as follows:</p> <p>“ It is a well settled principle of our law, that a party in Pennsylvania is not answerable in damages for the reasonable exercise of a right, unless on proof of negligence, unsJcilfulness, or malice, in the exercise of that right. That Wattson had a license and right to send his servant on the wharf, if the evidence is believed, cannot be disputed. If that servant was guilty of negligence, unskilfulness, or malice, and did injury from either of these causes to the old woman who is the plaintiff, this action will lie against his employer or master. But if it was an accident, without either negligence, unskilfulness, or malice, on the part of Bull, this action cannot be maintained. I submit to you that the evidence neither shows unskilfulness in Bull, or malice. The evidence is, and you will judge of it, that Bull was a skilful, careful driver; and I am unable to discover the least malice on his part against this unfortunate old woman. Now, as to negligence. Negligence is the omission of that which ought to have been,done. To be negligent is to be heedless, careless, inattentive. The horse would seem to have been accustomed to the dray. If the evidence is to be believed, he was not restive. If Bull is believed, he came upon the wharf in a walk. He was standing on the dray just as he passed the plaintiff, and the horse (perhaps seeing the river) shied or turned to the south. Bull instantly advanced to his head; and I submit to you, as the dray was long and the wharf narrow, he backed some, and turned his head to the west. The tail of the dray, I presume, swept her off, and the hub perhaps touched her. The material injury would seem to be from the tail of the dray. Whether her leg was broken by the dray, which is most probable, or the fall, does not clearly appear. You are better judges of what is negligence in draymen than I am.”</p> <p>Points were submitted on the part of the defendants, which, with the answers thereto, were as follows:—</p> <p>1. That if the injury to the plaintiff was caused by accident, the plaintiff cannot recover from the defendants.</p> <p>I concur in this, and answer this point affirmatively.</p> <p>2. That unless there is clear proof that the injury was caused by the culpable negligence of Bull, the plaintiff cannot recover.</p> <p>I have so instructed the jury, that there must be proof Bull was guilty of negligence.</p> <p>3. That it lies upon the plaintiff to satisfy the jury, beyond doubt, that the injury was caused by the negligence of Bull.</p> <p>I concur; they must satisfy the jury that the injury was caused by the negligence of Bull.</p> <p>4. That there is no evidence from which the jury can find that the injury was caused by negligence of Bull.</p> <p>I instruct the jury that I think the weight of evidence is against the plaintiff, that there was any act of negligence in Bull which would authorize this action. The jury will judge whether there was negligence on the part of Bull, negligence being a matter of fact for their determination.</p> <p>5. That if the injury was received by the plaintiff while on private property, she cannot recover under the declaration in the cause.</p> <p>I do not concur in this, she being on this wharf; if there was negligence, she ought to recover.</p> <p>•Upon the whole, gentlemen, we all sympathize and pity this unfortunate woman; but our sympathies must not carry us away so as to do injustice, and cause us to violate an important principle of our law. This old lady, by her own act, placed herself in an unfortunate place; and unless Bull was guilty of negligence in turning his dray against her, there ought to be no recovery. If it was accident, after the exercise of ordinary care, there can be no recovery; but if Bull) with ordinary care, after his horse turned and started, could have avoided coming in contact with the plaintiff, it would be negligence. The jury will judge of it.</p> <p>Verdict was rendered for the plaintiff.</p> <p>The assignments of error were as follows:—1. That the judge did not answer the defendants’ fourth point in the affirmative.</p> <p>2. That he did not answer the defendants’ fifth point in the affirmative.</p> <p>3. Because the judge charged that if the defendants’ servant was guilty of negligence, unskilfulness, or malice, and did the injury to the plaintiff, from either of these causes, the present action will lie against the defendants, his masters or employers.</p> <p>4. Because he charged, that if the act which caused the injury to plaintiff was done through the malice of defendants’ servant, the action would lie against the defendants, although there was nothing in the declaration to cover such a case.</p> <p>5. Because the judge left the question of negligence to the jury, when there was no evidence of negligence.</p> <p>6. Because he left the question whether the act of defendants’ servant was malicious, when there was' no evidence of malice.</p>

This was an action of scire facias issued in the name of Jonathan Jarrett and others, executors of the will of Azor Lukens, deceased, against David E. James, administrator, &c., of Henry Sandman, deceased, to revive a judgment, issued out of the District Court for the city and county of Philadelphia, to December Tex*m, 1849, No. 40, under the following circumstances:— On the 9th April, 1827, a judgment was entered in the Court of Common Pleas of Montgomery county, to April…

<p>One of two joint owners of personal property may maintain trover against a stranger, to whom the other owner had transferred the joint property to other uses than those for which it was held by the joint owners, and inconsistent therewith, the stranger claiming the exclusive possession and ownership : and, in such action, the plaintiff may recover the value of his interest in the property converted.</p>

<p>1. Specific performance of a contract for the sale of lands will be decreed on the application of the vendor, if he is able to make a good title before the decree is pronounced, except where the contract is made in bad faith by one who knows that he has not title, nor the means of acquiring one. Where the contract is executed by deed accepted, and bonds given for the purchase-money, the vendee may defend an action on the bond, by showing defect of title, but such defence forms no ground for recovering back the purchase-money already paid ; unless there be covenants to cover the defect.</p> <p>2. Where persons indebted, made a voluntary assignment fur the benefit of creditors, which was voidable, and afterwards executed an assignment to trustees under the insolvent laws, none but creditors or their representatives, the trustees, can avoid it: and an action brought by the insolvent trustees, upon the bonds given for the purchase-money to the voluntary assignees, after the securities had been transferred to the former under a decree in equity, accompanied with an offer to ratify the purchase, is a perfect ratification of the title of the purchaser which removes all ground of defence founded upon a defect of title.</p> <p>3. The insolvent trustees are not estopped from so recovering the purchase-money on such securities by reason of an ejectment pending in their own names and in which issue was joined on the plea of not guilty.' Such a proceeding is an affirmance of title by one party, and a denial by the other, and if estoppel exist at all, it is estoppel against estoppel, which leaves the whole matter open.</p> <p>4. In a proceeding on the bonds of the purchaser, by the insolvent trustee, who was not chargeable with bad faith, and who allowed credit for the money paid and agreed to confirm the sale, the purchaser is not entitled, in addition, to credit for the expense incurred by him in defending against the voluntary assignees, and also against a purchaser of the debtor’s interest, claiming adverse to both assignments. Having gone into possession without any covenant of warranty, he must submit to the disadvantages of his contract.</p>

This was an action of trespass vi et armis, brought by Peter Hansell and others, trustees of the Blockley Baptist church, against Thomas, Israel, Benjamin, and Nathan R. Suplee, for entering on and building a vault, and appropriating four burial lots in the burial-ground of the said church.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit brought in the court below by E. Ketterlinus, against L. A. Wollenweber.</p> <p>The first count in the declaration charged that one William McKean was indebted to the plaintiff in $234.50, and that plaintiff had in his possession goods of the said W. McKean, of the value of $300, as security for the same; and that the defendant, in consideration that the plaintiff, at his request, would relinquish the possession of the said goods and abandon his lien thereon, promised plaintiff to pay him the said sum of $234.50 in thirty days; and that he did so relinquish possession of the goods, but defendant has not paid, although the thirty days have elapsed.</p> <p>Other counts were on a bill of exchange alleged to have been drawn by defendant on the 12th July, 1849, in favor of plaintiff on B. F. Baskin, of Mercer county, for $227, payable ten days after sight; and in the third count was an averment that the same was presented on the 25th July, 1849, to Baskin for acceptance, who refused to accept or pay the same, and that at the time of presenting the same for acceptance, defendant had no effects in the hands of Baskin, nor had Baskin received any consideration for acceptance or payment of the same; nor had the defendant received any damage by not having had notice of non-acceptance.</p> <p>The fourth count was on a similar bill of exchange, with averments that, at the time of drawing the same, Baskin had no effects in his hands, nor had received any consideration for acceptance or ¡Dayment of said bill, nor had the defendant any authority to draw the same, nor had the defendant received any damage by the said bill not having been presented to Baskin for acceptance, or by not receiving notice of non-acceptance.</p> <p>The declaration also contained the common counts.</p> <p>Defendant pleaded non assumpsit, payment, and set off, with leave, &c.</p> <p>On the trial of the cause on the 21st of October, 1850, before Eindlay, J., two questions were raised as to the admission of evidence, subject to which exceptions, the following facts were proved before the jury.</p> <p>Wollenweber, the defendant, had been employed by one William McKean, of Mercer county, to lithograph 2000 maps of that county. He sold out his establishment to Ketterlinus, the plaintiff ; Wollenweber employed the plaintiff to complete his contract with Mr. McKean, and on delivery of the maps, gave to Ketterlinus in payment a draft on B. F. Baskin, of Mercer county, for $227, which was never presented for acceptance, in Consequence of the letter of Mr. Baskin of the 25th July, 1849.</p> <p>The judge charged the jury, that if they believed the facts stated in Baskin’s letter to be true, they were sufficient to excuse presentment and notice of dishonor, to which defendant’s counsel excepted, and the correctness of this charge formed the main ground of exception in this court.</p> <p>The material evidence was as follows:—</p> <p>Henry Tyler, sworn.—I am plaintiff’s book-keeper; this is his book of original entries; this entry, dated May 28, 1849, is in my handwriting; it was made on the day it purports to bear date ; it was not copied from a blotter.</p> <p>Cross-examined.—Some of the entries in this book are copied from a blotter; I can’t recollect half of the entries which are copied from the blotter by looking at the book; the mark in the margin is the page of the ledger where it is posted; there is no mark to distinguish those entries which are copied from the blotter.</p> <p>Re-examined in chief.—This is the first place where this entry was made to my knowledge; I made it myself, think it was made some little time previous to the goods being sent away ; they were packed up and sent away on the 6th or 8th of June; when the entry.was made, the goods were ready for packing up; I saw the goods packed, and saw the box after it was packed; it was marked; Sir. Wollenweber’s clerk was there; I believe he took charge of the box; Mr. Chan, now present, is the person ; I don’t know if he went with the goods, they were marked by his direction; I understood he was there for that pm-pose—to receive and have the goods directed; I believe the goods charged are the ones he received; I suppose they were waiting for him to come and receive them and have them sent off; I suppose they were perfectly finished; I know this entry was never copied and never was in the blotter; I took it from plaintiff’s mouth; the blotter is a memorandum for plaintiff himself.</p> <p>Cross-examined.—This is the blotter, the only one I know of, of that date; some goods are charged,in this blotter—most of them; those that plaintiff made no profit on he did not put in the blotter; I don’t know who ordered the goods; I know they were done for defendant; the drawing must precede the printing of course. The “corrections” were added afterwards, and the “boxes and cartage.”</p> <p>Jacob Heitz, sworn.—I am in plaintiff’s employment, was there when he did this work for Wollenweber; I heard defendant say to plaintiff, to send the work off as soon as possible, and he should have his pay in thirty days; I saw the maps there; I packed them in boxes; 1 saw Cha.n there, defendant’s clerk, several times; can’t say whether I or Tyler marked them; I saw them marked and go away; those are the maps I packed (looking at a bill produced by plaintiff); I work about the printing office; the boxes were taken to Leech & Co. in Third street; they were sent there from our office.</p> <p>Cross-examined.—The boxes were marked “ William McKean, Mercer, Mercer county;” I put the boxes on a dray and sent them to Leech & Co.; I did not see Mr. Chan along with the dray; I can’t recollect if he was there when they were packed.</p> <p>Henry Tyler, recalled, (being shown letter of June 6, 1849;) I wrote this letter at the dictation of defendant’s clerk, he was at the desk and the letter was handed to him—he was there to sign it; he took it away.</p> <p>The counsel for the plaintiff then offered in evidence, the copy of the letter referred to by the witness. The counsel for the defendant objected to its admission in evidence :—</p> <p>Because the authority of the clerk to write such a letter was not shown, and the said clerk was in court, and could be called and examined upon the subject.</p> <p>The judge overruled the said objection and admitted the evidence, to which the defendant’s counsel excepted, and at his request a bill of exception was sealed.</p> <p>The copy of the said letter was then read in evidence as follows :—</p> <p>Wm. McKean, Esq.</p> <p>Dear Sir:—I have been able at last to have your work finished entire, and forwarded this day. I regret very much having undertaken the job at the very low price I did, for it has actually' cost me double what I expected, therefore I hope you will excuse the delay (unavoidable) which has occurred. Below you have the bill; after examining the maps, please forward the amount,</p> <p>And very much oblige</p> <p>Your obedient servant.</p> <p>Wm. McKean, Esq.,</p> <p>To L. A. Wollenweber, Dr.</p> <p>For drawing and printing 2000 maps, - $200.00</p> <p>“ paper for the same, ------ 81.00</p> <p>“ corrections, &c.......25.00</p> <p>“ boxes and cartage,......1.50</p> <p>$307.50</p> <p>Henry Tyler.—It was forgotten at the time I made the entry, and I added the “ corrections” afterwards, by order of plaintiff, on the 6th of June, when the goods went off. There was no alteration in the amount. The corrections were thrown in.</p> <p>The plaintiff’s counsel then offered in evidence the entry in plaintiff’s book referred to by the witness, Tyler. The counsel for defendant objected to its admission in evidence—</p> <p>1. Because the book offered in evidence is not a book of original entries. 2. Because the entries were made before the delivery of the goods. 3. Because the entry had been subsequently altered by plaintiff’s direction.</p> <p>The judge overruled the said objections and admitted the evidence. Defendant’s counsel excepted. The book entry was then read in evidence as follows:—</p> <p>L. A. Wollenweber, Dr.</p> <p>1849.</p> <p>May 28. For 3 reams pk’t map paper, at $7.00, $21.00</p> <p>8 do. large do. do. 7.50, 60.00</p> <p>Re-drawing 2 stones and corrections, 12.00</p> <p>Printing 2000 maps, 140.00</p> <p>2 boxes and cartage, 1.50</p> <p>$234.50</p> <p>Plaintiff’s bill of $5.91 was admitted to be due.</p> <p>Paul Ketterlinus, sworn.—I am plaintiff’s brother. I know the defendant. About two weeks ago, or perhaps longer, he said he would like to see the matter settled. He said so several times within three or four months past; he always spoke to me about it, and not I to him. I met defendant; he said he expected the money from Mercer county every moment, and he would call and pay it. Defendant had a lithographic establishment for sale. He said if plaintiff would do this work as cheap as anybody, he should have the job, and he would see him paid. The work was interrupted by alterations sent from Mercer county, for part of which defendant paid, and part was paid for by plaintiff. The work was finished, but not paid. for.</p> <p>Re-examined in chief.—Plaintiff did the work for defendant; he ordered it in my presence.</p> <p>The defendant’s counsel offered the following evidence, viz.:—</p> <p>Isaac Chan, sworn.—I am a clerk for defendant. Plaintiff received a draft from defendant and gave a receipt.</p> <p>Henry Tyler called on part of defendant.—There never was a credit on plaintiff’s books for a draft given by defendant in this transaction.</p> <p>Th'e defendant’s counsel then called for a letter which was produced by the plaintiff, and read in evidence by defendant’s counsel, as follows:—</p> <p>Mercer, Mercer county, Pa., July 25, 1849.</p> <p>Dear Sir:—Yours of the 20th was received this morning, informing me that you had a draft on me for $227, drawn by L. A. Wollenweber, and wish to know when and how I will pay it. In reply, it will be necessary for me to give you a statement of the matter, and leave you to decide as to how it will be best for you to proceed. Last fall, about the beginning of September, I was in Philadelphia, in company with a Mr. McKean from this place, and went with him to Mr. Wollenweber, to see whether he (Mr. W.) would lithograph some maps of this county for Mr. McKean.</p> <p>Mr. McKean had made an arrangement with the commissioners of this county to furnish them with two hundred copies of the map, for which they agreed to pay him $300 when he delivered the maps. This contract Mr. McKean wished to assign as pay for lithographing the maps, and Mr. Wollenweber agreed to take it. He agreed to do two thousand copies of the maps for $200.00, and Mr. McKean to pay for the paper at the price paid for it by Mr. Wollenweber. In order to induce Mr. Wollenweber to take the contract, I agreed to attend to receiving the money here and remitting it to Mr. Wollenweber without charging anything for my services ; and in order to enable me to do so, the following assignment was endorsed on the copy of the contract before alluded to:—</p> <p>“In consideration of L. A. Wollenweber lithographing and printing two thousand maps of the county of Mercer, and furnishing the paper for the same, I hereby assign to B. F. Baskin for the use of L. A. Wollenweber, the sum of $200 for lithographing and printing the same, and also the actual amount of the paper furnished by him for the same, as per contract of this date.</p> <p>(Signed), Wm. McKean.</p> <p>“Philadelphia, September 6, 1848.”</p> <p>I forwarded 'to Mr. Wollenweber, according to a letter of his, the amount of §75.00, on the 15th of January, 1849. The maps were to be finished in about six weeks from the date of contract. Mr. McKean did not receive them until a few weeks since. He has not yet been able to have them finished so as to supply the commissioners, and consequently is not entitled to receive any of the pay. Mr. Wollenweber is to blame very much in the matter. It has been a serious loss to Mr. McKean. Last winter an Act was passed dividing the county, which will be a source of serious loss in the sale of the maps. There is assigned to me only $200, and your draft is for $227. This is $27 more than was assigned to me. You now have the whole matter before you. I am only assignee of the contract in trust for L. A. W. The maps have not been furnished according to contract to Mr. McKean, or by him to the commissioners, and consequently, as yet, there is no money due. I wrote to Mr. Wollenweber three different times on the matter, and he never answered or paid any attention to my letters. He has a copy of the contract referred to in the assignment given you on the opposite page. I am still willing to fulfil my promise to Mr. Wollenweber, but could not now accept or pay this draft you say you have against me. I shall be pleased to hear from you as to how you arrange it.</p> <p>Yours, with respect, B. E. Baskin.</p> <p>To Mr. E. Ketterlinus, Philadelphia.</p> <p>The draft referred to, viz. Wollenweber’s draft on B. F. Baskin, in favor of plaintiff, for $227, dated July 12, 1849, payable ten days after sight, was produced by plaintiff, and read in evidence by defendant. Also, the following receipt for the same:—</p> <p>Received of L. A. Wollenweber, a draft on B. F. Baskin, Esq., Mercer county, Pa., for two hundred and twenty-seven dollars, which, when paid, will be placed to his credit on account.</p> <p>$227. E. Ketterlinus.</p> <p>Isaac Chan, recalled.—There was no other transaction between the parties at this time. This draft was given on account of this transaction.</p> <p>Cross-examined.—Plaintiff gave me Baskin’s letter to show to defendant; I did show it to him; I don’t know the time; I guess it was about the time the draft was given; I can’t say precisely.</p> <p>Re-examined.—Plaintiff said he had received a letter from Mercer county, and I should show it to defendant. He did not say how long he had received it.</p> <p>The judge charged the jury, that if they believed the facts stated in Baskin’s letter to be true, they were evidence sufficient to excuse presentment of the draft, and notice of dishonor thereof to the defendant.</p> <p>To which charge defendant’s counsel excepted.</p> <p>Verdict was rendered for the plaintiff for $260.03.</p> <p>The following was assigned for error:—</p> <p>1. Because the judge, before whom the cause was tried, erred in admitting in evidence the letter, which is the subject of the first bill of exceptions.</p> <p>2. Because the judge erred in admitting in evidence the entry in the plaintiff’s book, which is the subject of the second bill of exceptions.</p> <p>3. Because the judge erred in charging the jury that if they believed the facts stated in Baskin’s letter of the 25th July, 1849, to be true, .they were evidence sufficient to excuse presentment of the draft (therein mentioned), and notice of dishonor thereof to the defendant.</p>

<p>Two suits were brought by the Commonwealth of Pennsylvania, against the President, Directors, and Company of the Bank of the United States, in the District Court for the city and county of Philadelphia; one to June Term, 1850, No. 144, and the other to same Term, No. 145.</p> <p>The actions were brought to recover from the bank, portions of the bonus alleged to be due to the commonwealth, under and by virtue of the 6th section of the Act of Assembly incorporating the bank. See Pamphlet Laws of 1835-36, p. 36, &c.</p> <p>In the first suit to June Term, 1850, No. 144, a bill of particulars was furnished on the part of the commonwealth, the claim in which was stated: ■'</p> <p>Bank of the United States, to the Commonwealth of Pennsylvania, Dr. June 1, 1841, to annual payment provided for by charter, $100,000, with interest on same.-</p> <p>In the other suit to the same Term, No. 145, a bill of particulars was furnished, containing a claim for $100,000, payable June 1* 1842, and for the same amount, payable on the first day of June, 1843-4-5-6—7-8 and 9, amounting in all to $800,-000. -, •</p> <p>The declaration was in the ordinary form of debt, and the defendant pleaded nil debet and payment with leave, &c.</p> <p>On the trial of the causes before Shabswood, J.-, on 15th January, 1851, the plaintiff offered in evidence, under objection, the act incorporating the bank, before referred to; certain minutes of the stockholders thereof, bearing date February 17, 18 and 19, 1836, accepting the charter; certain returns made by the bank tp the auditor-general, under the 10th article of the 4th section of the charter, and an exemplification from the office of the secretary of the commonwealth, dated May 4, 1850, of a copy of the proceedings of the stockholders accepting the charter before referred to. And thereupon the plaintiff closed.</p> <p>The defendant read in evidence the Acts of Assembly of Pennsylvania, passed on the 4th and 5th of May, 1841. (See Pamphlet Laws of 1841, p. 317 and 321, et seq.)</p> <p>The Act of 4th May, 1841, and of 5th May, 1841, provided for a general assignment of the real and personal estate, whatsoever and wheresoever, of the Bank of the United States. The assignment was to be preceded by a vote of the stockholders; an election of trustees by the stockholders was provided for; the assignment to be for all the creditors pro rata; the notes of the bank to be received at par by the trustees in payment of debts of the bank.</p> <p>The defendant further offered in evidence four several deeds of assignment made by the President, Directors and Company of the Bank of the United States, bearing date respectively, May 1, 1841, June 7, 1841, September 4, and September 6, 1841, duly recorded, &e. Also certain proceedings of the stockholders of the bank, at meetings which were held on the 3d of January and the 21st of February, 1842. And the defendant further offered to follow this with proof, that from the date of the assignments of September 4 and 6, 1841, the bank ceased to do any banking business, and to exercise any banking privileges. That the corporation had been from those dates, and continued to be insolvent, (or unable to pay its debts); that the property excepted out of the two last mentioned assignments set forth in the schedule annexed to the assignment, was subsequently sold by virtue of judicial process, except two hundred shares of the capital stock of the Rose-burg and Mercer Turnpike Company, which was worthless and had no market value. And in addition to this, the defendant offered to prove that the stocks pledged in Europe, and excepted out of the September assignments, were not worth the sums of money for which they were pledged. And that the plaintiff has 'made, and is now prosecuting a claim against the assignees under the assignments for a dividend, or for payment out of the assigned effects.</p> <p>Also, that no demand was ever made upon the bank by the plaintiffs for the sums now claimed, until within one week previous to the commencement of this suit. Which offer of testimony being objected to, the judge rejected the same, and directed the jury to find a verdict for the plaintiff for the amount of the claims in both suits.</p> <p>■ On the part of the defendant exception was taken to the ruling of the judge.</p> <p>The jury rendered a verdict for the plaintiff in both cases; In No. 144, $100,000 debt, and $57,750 damages: In No. 145, $800,000 debt, and $246,000 damages.</p> <p>The errors assigned in this court were to the rejection of the foregoing offer of testimony, and the direction given by the judge to the jury.</p>

The record brought up from the District Court for the city and county of Philadelphia, exhibited the following case:— William Bozorth ■ ] v. V William G-. Marshall. j June Term, 1848. No. 172. Docket Entries. Sur award of referees in favor of plaintiff sur agreement dated August 11, 1847, to refer under the first section of the Act of Assembly, passed 21st March, 1836, &c., said award being in favor of William Bozorth for $565.14.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit by Elizabeth Lentz, to recover from William Price, for boarding and lodging his wife and child. It was alleged that the wife had been expelled by the husband from his house, and had taken refuge with the plaintiff, in February, 1846. The declaration contained several counts, viz.: for use and occupation of apartments; on a quantum meruit for same; for apartments for the wife and son, &c.</p> <p>The plea was non assumpsit and payment with leave. On the part of the plaintiff a bill of particulars had been furnished. In it it was alleged that the plaintiff claimed $692 for board, lodging, washing, fire, and light, furnished for the wife of defendant and child, from October 81, 1846, to March 16, 1850; 173 weeks, at $4 per week.</p> <p>The boarding and lodging were proved by two witnesses. The plaintiff then offered in evidence the record of a suit or action between the same parties in said court to September Term, 1846, as conclusive in this case of the fact that defendant had turned his wife out of doors.</p> <p>This record was of an action of assumpsit between the same parties, in which plaintiff declared as in this case ; and showed a verdict for the plaintiff, on 26th April, 1849, for $65, and a satisfaction of the judgment. This was rejected.</p> <p>The plaintiff then offered in evidence the same record, accompanied by a declaration that it would be followed by proof from the notes of the judge who tried the case, from the notes of counsel in the case, and from one of the jurors in the case, that the only ground on which the plaintiff claimed in the former action was, that the defendant’s wife for whom board was in said first suit or action demanded, had been turned out of his house by the defendant, and had been boarding with the plaintiff for the time claimed in that action, and that this was the ground upon which the plaintiff claimed in the present suit. It was conceded that no MU of particulars had been furnished in said former cause. The declaration in that case contained several counts for necessaries furnished to defendant, for goods sold, for room and necessaries furnished to defendant’s wife, &c., but no precise time was specified.</p> <p>The court refused to admit said record accompanied by said declaration, and plaintiff excepted.</p> <p>The plaintiff having closed his case, the defendant moved for a nonsuit, which the court granted.</p> <p>The plaintiff excepted.</p> <p>The errors assigned were, the rejections of the two several offers of evidence above mentioned.</p>

<p>1. The Orphans’ Court have power, underthe Act of 13 th April, 1840, relating to Orphans’ Courts, on the application of a creditor, to appoint an auditor to make distribution of assets in the hands of the administrator which are insufficient to pay all the debts of a decedent.</p> <p>2. On the hearing before the auditor, each creditor has a right to appear and be heard. The administrator has not the control of the proceeding, nor is he responsible for errors in the distribution. Where the fund is not sufficient to pay all of the creditors, any creditor has the right to oppose any other claimant by showing payment, or that the claim is barred, or that its lien has expired, 'if claimed out of the proceeds of real estate; or may show any other defence existing to its payment.</p> <p>3. In the case of distribution of proceeds of sale of a decedent’s real estate, after record liens existing in his lifetime have been paid, a debt whose lien under the Act of 24th February, 1834, has been continued by suit against the executor and devisees of the real estate within five years after the death of the decedent, is entitled to be paid in preference to general debts the statutory lien of which has expired.</p> <p>4. The statutory hen of a debt against the estate of a decedent is continued by suit against the executor alone, though the heirs or devisees are not made parties to it.</p> <p>5. Though the argument in this court, on an appeal from the decree of the Orphans’ Court, should be limited to a review of the decision of the court below on the facts and exceptions there stated; yet, by the 4th section of the Act of 14th April, 1835, the Supreme Court possesses a legal discretionary power over the subject on appeal, and may refer the case to auditors de novo, when in its opinion the justice of the case requires it; the auditors to report to this court for a final decree.</p> <p>6. A creditor of the decedent who has received from the executor an assignment of claims of the estate, as collateral security (there being no evidence of insolvency at the time of the assignment), is not bound to reassign them before receiving a dividend less than half the amount of his claim out of the assets in the hands of the administrator de bonis non. This can be required only on payment or tender to the claimant of the whole amount due to him.</p>

<p>1. In an agreement under seal, the defendant agreed to conduct a commission business for the sale of Saxony Mill goods, and to give to the plaintiff the one-half of the commissions from tire sales. In another clause it was further agreed, that if the defendant does not have the sale of the Beaver Mill printing cloths, until the termination of the agreement, then plaintiff was to pay to. the defendant one and one-half per-cent, on the amount of said goods. The plaintiff further agreed to influence all consignments of goods to defendant he possibly could, and. also to give his personal attention to the business, so as to promote the interest of both parties:</p> <p>It was held, that it lay on defendant, in an action on the agreement, to show that plaintiff could have influenced consignments to the house which he did not do: also, that if defendant supposed that the plaintiff failed to give his personal attention to the business, the defendant should have notified him to do so, and that the court was right in submitting the question of his attention to the jury.</p> <p>2. The covenant relative to the Beaver Mill goods, was an independent covenant, and the plea of set-off on account of it was evidence that the defendant; so considered it. The defendant was entitled to an off-set on account of it, if the breach of it were shown, and that defendant incurred damage on account of it; and these were questions of fact proper to be submitted to the j'ury-</p>

Error, to the District Court, Philadelphia. This was ■ a proceeding by Samuel Norcross, against John B. ■Martel, defendant, and the Franklin Fire Insurance Company of Philadelphia, and the Spring Garden Mutual Insurance Company, garnishees.' It was an attachment execution issued on a judgment of December Term, 1848, to which the garnishees pleaded nulla bona.

<p>Error to the District Court, Philadelphia,</p> <p>This was an action of debt on a ground-rent deed, brought by Phoebe Kitchen v. James'Kerr. The execution and delivery of the deed were proved, and the amount of the arrears of ground-rent in contest, was not disputed.</p> <p>James Kitchen died in July, 1826,. seised of real estate, inter alia, of a lot of ground situate on Schuylkill Front street near Pine street, in the city of Philadelphia. He left a will dated the 31st day of July, 1825, which was subsequently duly proved, and by that will devised his estate, real and personal, to his wife, and upon her death to his five children, Henry N, James, Elizabeth D., Phoebe, and William, in equal parts.</p> <p>By deed dated the 9th day of September, 1828, the said Henry N. Kitchen and Elizabeth his wife, conveyed all his right and interest in the estate devised by his father, including the premises in question, to his mother Phoebe Kitchen in fee.</p> <p>By deed poll dated the 17th day of September, 1828, the said Phoebe granted the said estate to James Kitchen in special trust, for the use of the wife of the said Senry JJ. Kitchen, during the joint lives of the said H. N. and Elizabeth, also to Elizabeth during her widowhood, and after her death or marriage to such of the children of the said Henry as might be then living. No power was given to the trustee to grant, encumber, or charge the estate.</p> <p>Henry N. Kitchen died before the commencement of this suit, leaving Elizabeth his widow and one child, a minor; both are still living, and the said Elizabeth remaining unmarried.</p> <p>On the 24th May, 1839, Phoebe Kitchen, widow, James Kitchen as trustee under the said deed poll dated the l7th day of Sept. 1828, the said James Kitchen in his own right, Elizabeth D. Kitchen, Frederick Schofield and Phoebe his wife, late Phoebe Kitchen, and William Kitchen and wife, by indenture granted the said premises to James Ker on ground-rent, viz. $306 per annum, and the said James Ker covenanted to erect within three years sufficient buildings to secure the said ground-rent. This deed contained a reference to the deed of trust by Phoebe Kitchen, (the mother) to James Kitchen, “upon the trusts and to the uses, intents, and purposes therein declared,” and stated its date. It referred to it asbeing recorded, and stated the place of its registry. The deed to Ker contained a covenant for quiet enjoyment.</p> <p>It was alleged on part of Ker that no notice was given to him of the nature of the trust contained in the said deed poll of the 17th Sept. 1828, except the implied notice from its record, and the recital thereof in the ground-rent deed.</p> <p>On the trial, the agent of the grantors deposed that he was employed by Mrs. Kitchen to let the property on ground-rent, and says, “ I knew of the trust deed, and I thought there might be some difficulty in managing it; I knew of that (trust) deed, but I submitted it to the superior knowledge of Mr. Bonsall as to examining the title; I considered it a bargain to Mr. Ker and very cheap.”</p> <p>It appeared in evidence by Messrs. Harvey Phillips and William Alexander, that $3 per foot was the full value of the premises.</p> <p>Mr. Bonsall, who was employed by Mr. Ker as scrivener, divided with the agent the commission paid by the grantors for selling the lot, and deposed that he was ignorant of the defect, and when Mr. McCurdy handed the title papers, the deed of trust was withheld. It was also proved on this trial, which was not proved on the former trial hereafter referred to, that Dr. James Kitchen, in selling other property which passed under the same title, had declared that the title was good except a small judgment.</p> <p>James Ker paid the ground-rent for four years, viz.:—$1224, and $153.58 taxes, in all $1337.98; when he was apprised of the defect of title, he immediately, viz., on the 24th December, 1844, tendered a reconveyance to the parties, which was refused.</p> <p>On the 11th March, 1845, James Ker instituted a suit in the District Court for the city and county of Philadelphia (December Term, 1844, No. 713), to recover back the money paid by him. The case was tided before Judge Joel Jones, on the 19th January, 1846, .who ordered a nonsuit on the plaintiff’s evidence. The case was carried by plaintiff to the Supreme Court, where the decision of the court below was affirmed; but the court, Bell, J., in delivering the opinion, says :—</p> <p>“Were this suit brought to recover purchase-money, a grave question might be presented; but it is clear beyond cavil, there is nothing in the case to take it out of the rule I have stated in respect to money paid:” Kerr v. Kitchen, 7 Barr 486.</p> <p>On the 3d of February, 1845, the plaintiff instituted this suit against the defendant below, to recover one year and a half ground-rent, due 1st May, 1844, viz.: $459, and $139.89 interest, altogether $598.89. The case was tried before Eindlay, J., on the 29th May, 1849, and in accordance with the opinion of the court, a verdict was rendered for the plaintiff.</p> <p>On this trial, the plaintiff gave in evidence an Act of Assembly, passed the 26th March, 1846, authorizing the trustee, James M. Kitchen, to sell and convey the premises on certain conditions. See Acts of 1846, p. 155, &c., authorizing a conveyance in fee by the trustee under both of the trust deeds referred to in this case.</p> <p>Also a deed of confirmation, executed by James Kitchen as trustee of the estate of Eliza M. Kitchen, and by James Kitchen as trustee of the estate of Phebe K. Scofield, dated the 13th day of May, 1846, which it was admitted had been tendered to Mr. Ker and refused.</p> <p>To this evidence the defendant’s counsel objected. The court overruled the objections and admitted the evidence, and the defendant’s counsel excepted.</p> <p>Another deed also existed, which was not given in evidence by the defendant on the trial; but its existence was admitted by the Act of Assembly, and the deed' of confirmation. It was a' deed of trust, dated the 5th day of March, 1838, by Phoebe Kitchen, the younger, made in contemplation of marriage, by which she conveyed to James Kitchen all her real and personal estate, in trust for the separate use of the grantor. It was- not recorded till 2d April, 1840, being after the conveyance to Ker.</p> <p>On the part of Ker, it was alleged and contended, that it appeared from the evidence, that the grantors fraudulently concealed from him the inability of the trustee to convey.</p> <p>That the certificate as to searches excluded conveyances. That the defects in the title were a bar to the plaintiff’s recovery.</p> <p>By the Act of Assembly and the deed of confirmation, it appeared that Frederick Schofield and wife had no right to convey—that they had previously, by marriage settlement, transferred the property. The deed recites that this marriage settlement was not recorded till the 24th day of April, 1840. The production on the last trial of the Act of Assembly, and the deed of confirmation, was the first notice of this additional defect of title, and all information relative to it was concealed.</p> <p>On the trial the defendant asked the court to charge:</p> <p>1. That in point of law, the plaintiff is not entitled to recover, because the title of the grantors was defective at the time the conveyance was made and suit brought.</p> <p>2. That if the plaintiff is under any circumstances entitled to recover, still if the jury believe that the grantors fraudulently concealed from the defendant the defect in the title, the plaintiff cannot recover.</p> <p>3. That this is a question of fact for the jury to determine.</p> <p>4.' That the deed of the grantors to the defendant is not proved or acknowledged according to the directions of the Acts of Assembly of Pennsylvania, in such cases made and provided.</p> <p>The judge answered the first and fourth points in the negative; and in answer to the second and third points, said, that there was no evidence of fraudulent concealment by the plaintiff, and directed the jury to find for the plaintiff.</p> <p>The defendant tendered a bill of exceptions on each part thereof separately.</p> <p>The answers of the court to the four points submitted were assigned for error; and also 5. That the court directed the jury to find for the plaintiff, and took the case from their consideration, 6. The court erred in admitting the evidence offered by the plaintiff of the passage of the Act of Assembly, and the tender of the conveyance to the defendant, both being subsequent to the commencement of the suit.</p>

<p>1. A check, though not due and payable, may be attached under an attachment execution issued under the Act of 16th June, 1836.</p> <p>2. The bond fide holder of a check, who purchased it for value from one to whom the payee had made a gift of it, has title against the creditors of the payee, who was insolvent at the time of the gift, the purchaser knowing of the gift, but neither he nor the donee having knowledge at that time of the insolvency of the donor. Though the check was revocable by creditors of the donor, whilst it was in the hands of the donee, his sale for value, without knowledge by the purchaser of the insolvency of the donor, passed to the purchaser a good title.</p> <p>3. One partner having endorsed a partnership check with the name of the firm, made a gift of it; a legal title in the holder thus appearing on the check, a purchaser from him was not required by law to suspect the title of the holder.</p>

Appeal by Antoinette Melizet from the decree of the Orphans’ Court of Philadelphia county. John M. Melizet, of the city of Philadelphia, made his will, dated July 1, 1844. He died in Philadelphia on the 26th March, 1850. His will was proved on the 22d April, 1850, and letters testamentary were issued to John B. Roudet, the nephew of the deceased, who was named in the will as one of the executors and trustees under the will.

<p>Where a purchaser has been induced to make the purchase through the assertion by the agent of the vendor of a very material fact, which turns out to be false, and as to which the vendee had no means of obtaining correct information, he is entitled, in an action against him on the articles of agreement, where the contract has been in part complied with on his part, to a deduction from the sum claimed in the action, to the amount of the difference between the value of what he received, and what he thought he was purchasing.</p>

<p>An employer who voluntarily paid to an alderman illegal fees charged by him in a criminal proceeding against persons in the employ of the former at the time of the commission of the act, the same having been done in obedience to his instructions, in the course of his business, was held, though a stranger to the record, to be the parly injured, and entitled, under the 26th section of the Act of 28th March, 1814, to recover the penalty for taking such fees. The presumption is, that he paid the fees out of his own money, in the absence of proof to the contrary.</p>

<p>1. After the institution of an action of partition, the plaintiff conveyed his interest in the land to persons who were not parties to the proceeding. Held, that such conveyance imposed no obligation on the parties to the action to notify the purchasers of the subsequent proceedings in the action of partition. Ids pendens was of itself notice.</p> <p>2. The sale of the land under the proceedings in partition was a conclusive defence to the claim of the grantees of the plaintiff, pendente lite.</p> <p>3. The plaintiff in the partition, previous to the issuing of the writ of partition, executed a mortgage of the land for purchase-money due upon it. The land was subsequently sold under the proceedings in the partition, and the mortgagee claimed and received his portion of the proceeds of sale. He after-wards assigned the balance due and unpaid on the mortgage bonds: it was Tie Id, that the acceptance of the proceeds of sale of the mortgaged premises was a bar to any claim to the land by the assignees of the mortgage, who claimed it as passing with the transfer of the bonds.</p>

<p>Error to tbe Common Pleas of Wayne county.</p> <p>This was an action of trespass by William Janson v. George Kellam and others, for forcibly removing his household furniture from a dwelling-house, which Kellam had purchased at sheriff’s sale, and of which Janson took possession after the sheriff’s sale.</p> <p>Warder & Brother owned a piece of land, and on the 24th January, 1846, they contracted to sell it to Abraham Lane. Lane entered into possession, paid part of the purchase-money, cleared some of the land, and built a house.</p> <p>Kellam obtained a judgment against Lane to September Term, 1848.</p> <p>After the entry of the judgment, viz., on 9th July, 1849, Lane assigned to Alexander Calder, his interest under the contract, with notice of the existence of the judgment in favor of Kellam, but reserving the grass then growing on the land. Lane left the possession in 1849, before the sheriff’s sale.</p> <p>On 7th September, 1849, Warder & Brother conveyed the land to Calder.</p> <p>On the 80th November, 1849, the land was sold at sheriff’s sale to Kellam, under his judgment, and the sheriff’s deed to him was acknowledged on 8th December, 1849.</p> <p>After the sheriff’s sale, Lane delivered the key of the house to Kellam. From about the 1st November, 1849, till February, 1850, the premises were vacant.</p> <p>In February, 1850, Janson, with knowledge of Kellam’s title, moved into the house under a lease from Qalder. In March, 1850, Kellam and others went to the house where Janson and wife were absent. The house was entered through a window, the door was opened and the goods put out. The goods were not of much value, and were carefully removed; some of them got wet. For the entrance and removal of the goods this action was brought.</p> <p>Eldred, J., charged, inter alia, as follows:—</p> <p>“ Abraham Lane had an equitable interest in the premises on which Kellam’s judgment was a lien, before Lane assigned his contract to Calder, and that equity could be sold by the sheriff. The purchaser could take possession of the premises if it was vacant and no one in possession. If there was a person in possession, he could obtain it from him by instituting proper proceedings at law. But if there was a person in possession claiming under Calder, the assignee of Lane, the purchaser under the sheriff’s sale had no right to enter the house and remove the goods by force out of the door, and thereby acquire the possession.</p> <p>“ There seems to be but little dispute about the facts in the case: the questions are, can the plaintiff sustain this suit; and, if so, what damages should be allowed him ?</p> <p>“ If Abraham Lane sold out his contract to Calder and delivered up possession of the premises to him, and if Calder took possession (by himself or his agent) and leased it to plaintiff, and in pursuance of it moved into the house, the plaintiff can maintain this action against George Kellam for removing the goods out of the house. The evidence on the subject referred to the jury. If the jury find for the plaintiff under the rule laid down by the court, they will ascertain what damage the plaintiff has sustained, and render their verdict accordingly.”</p> <p>Yerdict was rendered for plaintiff for $23.</p> <p>Error was assigned to the charge.</p>

This was a suit by Henry ~W. Page against John Cobb. It was instituted before a justice of the peace, from whose judgment an appeal was entered. The suit was for an alleged claim of Page, against Cyprian S. Cobb, which he alleged that John Cobb, the defendant, had promised to pay. The claim was for about $49.18. The suit was commenced on 4th January, 1850.

<p>This was an. appeal by John Weber, from the decree of the Orphans’ Court of Lehigh county, making distribution of the estate of Frederick Biery, deceased.</p> <p>Frederick Biery, of Hanover township, Lehigh county, made his will, dated 29th December, A. D. 1839, which, in part, was as follows:—</p> <p>“ It is my will that my executors shall sell at public vendue, my mill, with the store-house, the dwelling thereto belonging, the land belonging to the same, and all water-courses and rights belonging to the mill, at such time, and upon such terms and conditions, as they may think proper for the best of my estate. Yet all those in any way entitled to the use of water out of the creek, the spring or dam, shall not be prejudiced. •</p> <p>“ And as I have a contract with the Lehigh Coal and Navigation Company to take water out of the canal above the lock, for the use of said mill, therefore so much ground or land as may be necessary for a race to lead the water to the mill is to be sold with it, and is hereby appropriated.</p> <p>“ Further, it is my will that the lowland from the said lock to the hickory tree, be also sold at public vendue, as also all lots on the furnace street.</p> <p>“ Each of my children (except Jonas and Solomon), and each of the four children of my deceased son Joseph, shall, however, have one of the said lots. These said lots I give to my children and grandchildren, without their having anything to pay for them, or that there shall be anything charged them for the same. They shall choose their lots according to their ages, but those lots which are most profitable, or shall bring the best price, shall not be chosen by my said children or grandchildren, but be sold.</p> <p>“I give and devise to my son Jonas and to his'heirs and assigns, my plantation and piece of land with all that is appurtenant thereto, for which he shall pay eighty dollars for each and every acre the same contains, on the following terms: Four thousand dollars he takes away first, for a part of his inheritance from me, the balance he has to pay in twelve equal instalments without interest; the first instalment one year after my decease, and so on yearly one instalment until all is paid.</p> <p>“ I give and devise to my son Solomon, and to his heirs and assigns, my tavern-house and piece of land, from the Furnace street in a line towards the Lehigh, and then- above the said hickory tree, with all the appurtenances, for the sum of six thousand five hundred dollars. Four thousand dollars thereof he shall receive on account upon inheritance from me, to wit, as a part of his inheritance, the balance, $2500, he shall pay in ten equal yearly payments without interest, the first one year after my decease.</p> <p>“ All my estate shall le divided among my eleven children, in eleven equal shares; the children of my said son Joseph shall receive one share.</p> <p>“ All that which shall be sold for cash, or what shall consist of cash, shall be immediately divided, but always in the manner as is or shall he directed by my will; but that part of my estate not cash, shall be distributed yearly as it becomes due among my children according to their ages, in such manner that two of them draw every year.”</p> <p>The testator died August 31, 1846. His will was proved Sept. 3, 1846. He had eleven children, two of whom died before he died; one of them, Joseph, was dead when the will was made, but left four children; and another, Paul, died after the making of the will, but in the lifetime of the testator, and without lawful issue.</p> <p>The executors of the will of the testator filed an account, in which they charged themselves with the amount of inventory, $17,326.05; with other moneys not included in the inventory, and with rents; and further with proceeds of real estate sold, exceeding somewhat $4400; in all amounting to $24,358.85. The credits asked amounted to $7,919.82, leaving a balance of $16,439.03 for distribution.</p> <p>Auditors were appointed, who reported, inter alia, “ According to the provisions of the will (as construed by. the auditors), two of the sons of the deceased, to wit, Jonas and Solomon, have each received $4000 legacy in real estate, and would not therefore be entitled to receive any further dividend until each of the other heirs shall have received a like dividend of $4000.</p> <p>“ It also appears that one of the sons of the deceased, referred to in his will, to wit, Paul, has since died without issue; the auditors have therefore divided the balance in eight equal shares, agreeably to the above distribution: all which is respectfully submitted.”</p> <p>Eeb. 4, 1848, the report was confirmed nisi.</p> <p>On the same day, exceptions were filed by counsel for Jonas and Solomon Biery.</p> <p>1. This being a case of testacy, the Orphans’ Court, or auditors appointed by them, had no authority to make or decree distribution of the balance in the hands of the accountants.</p> <p>2. That the auditors erred in their construction of the will of the deceased, in charging two of the sons of the deceased, to wit, Jonas and Solomon, with $4000 each, and excluding them from an equal dividend of the balance in the accountant’s hands.</p> <p>On the same day John Weber, one of the heirs, filed exceptions, the second of which was:—The auditors erred in not taking in the Dr. side of the account the $4000 received by Jonas in his land, as part of his inheritance, and $4000 received by Solomon in his tavern stand, as part of his inheritance, so that the same might have been brought into the estate, and in not giving the credit accordingly.</p> <p>June 21, 1849, the second exception on the part of Jonas Biery and Solomon Biery, was sustained. The exceptions taken by John Weber were dismissed, and the clerk of the Orphans’ Court was directed to restate the distribution according to the opinion of the court.</p> <p>In the opinion of the court, it was stated that the estate amounted to some twenty-four thousand dollars; an equal distribution of that among his eleven children, would have given to each of them about two thousand two hundred dollars, a sum greatly less than that which he expressly gives to Jonas “ as a part of his inheritance from him,” and to Solomon “on account of inheritance from him.” Here then the testator must clearly be taken to have intended inequality, at least to this extent. The opinion was intimated that the expression “all my estate,” was used in a sense restricted by the after part of the sentence, to '“ all that sells for cash or consists in cash, and to all that part of his estate which shall not be in cash, but which shall be divided annually as it becomes payable, among his children according to seniority, so that every year two of them shall draw.”</p> <p>With regard to Weber’s second exception, it was said not to be necessary to bring the sums of $4000, bequeathed to Jonas and Solomon, into the account; that they never came into the hands of the executors, and never were designed to come there; they were to be retained by the legatees. The exception was dismissed.</p> <p>On the report by the clerk, the distribution was confirmed absolutely.</p> <p>John Weber appealed, and exceptions were filed to the decree, because Jonas and. Soloman Biery were allowed each to retain $4000, and also to receive an equal share of the amount for distribution ; in not decreeing that the $8000 should be brought into the account; but if the $8000 and the balance of the account were not to be distributed equally among the ten heirs, then the report of the auditors should have been confirmed, and Jonas and Solomon excluded from any share of the balance of the estate, until each of the other heirs shall have received the sum of $4000.</p> <p>A rule was granted by the Supreme Court to take depositions. The examiner certified, that it was admittéd before him by the appellees, that the value of the real and personal estate of Frederick Biery, deceased, at the time of his death, including bonds and notes not due at that time, and also an advancement to John Weber of $1000, but excluding the $8000 given by the will to Solomon and Jonas, and deducting debts, was about $44,000; which, rents and interest received and debts collected since the report of the auditors, will, after deducting certain items, increase the amount to about $44,618.53. The $8000 being added, the amount would exceed $52,000.</p>

<p>Appeal by William H. Brown & Co., from the decree of the Court of Common Pleas of Chester county, distributing moneys raised under certain Ji.“fa. ’s issued against John Keech, and against John Keech & Mercer E. Gibson, partners.</p> <p>John Keech kept a store in the borough of West Chester, for about four years preceding the month of April, 1846. At that time he gave up that business, and commenced building houses, and amongst the rest built a store and dwelling on the north side of Gay street, nearly opposite his former place of business.</p> <p>On the first of April, 1848, he entered into articles of copartnership with Mercer E. Gibson of Philadelphia, for carrying on a dry good, grocery, and hardware business in West Chester; the partnership to continue for four years—providing, however, that in case of dissatisfaction, either party may dissolve the partnership by giving to the other three months’ notice. In the articles of agreement it was stipulated that the business of said copartnership be done under the name of John Keech.</p> <p>It was alleged in the statement on the part of the appellant, that it was understood between Keech and Gibson, that the partnership between them was not to be made public, and there is no evidence that it was known to any person except the counsel who drew the agreement, and William H. Brown & Co., until the execution of Brown & Co. was issued; the business was conducted in the name of John Keech. The store was opened in the new building on the north side of Gay street, on the 10th April, 1848, and was closed by the sheriff on the 24th December, 1849, and during that time John Keech was not engaged in any other business.</p> <p>Executions were issued and placed in the hands of the sheriff at the dates hereafter stated.</p> <p>Job Hayes v. John Keech.—Judgment confessed by Keech December 20, 1849. M. fa. issued December 22, 1849; debt $684.93.</p> <p>Moses Keech v. same.—Judgment December- 24,1849. M. fa. December 24, three hours fifty-one minutes, P. M.; debt $2200.</p> <p>Abigail Pyle v. John Keech.—Judgment December 20, 1849 ; fi.fa. December 24, three hours fifty-two minutes, p. M.</p> <p>William H. Brown & Co. v. John Keech and Mercer E. Gibson, trading under firm of John Keech.—Judgment entered December 24, 1849; fi.fa. December 25; debt $2374.03.</p> <p>Three judgments were subsequently entered against John Keech; one being in favor of Thomas J. Megear.</p> <p>The sheriff returned on all the writs, that he had “ levied on personal property of John Keech, and made by the sale of the same $48; and also levied on personal property of John Keech and Mercer E. Gibson, trading under the firm of John Keech, and made by the sale of the same $2918.58; in all, the sum of $2966.58, the costs having been first deducted therefrom.”</p> <p>All the claims except those of Job Hayes, Moses Keech, Abigail Pyle, and Thomas J. Megear, were for store goods which were purchased for and went into the business of the firm.</p> <p>The claim of Job Hayes was for money loaned by him at various times to John Keech, for which Keech gave him his note, dated April 26, 1849, at ten days, for $656.08. On this nóte suit was brought by Hayes on the 6th of December, 1849. Counsel appeared for the defendant; a rule of reference was taken out; and on December 20, 1849, before an award could have been had, judgment was confessed by defendant’s attorney.</p> <p>Moses Keech was the father of John Keech. In the spring of the year 1849, John borrowed of one Benjamin Hayes the sum of $2200, and executed to him his bond for that amount, on which Moses Keech became surety. Hayes entered judgment on the bond against the Keeches. At the time this money was borrowed, it was known to all the parties that $700 of it were intended for the payment of a lien on a house owned by John Keech in Biddle' street, and it was so applied. Another portion of it was' to pay a debt due by Keech to U. Y. Pennypacker, Esq.; but it was alleged Keech failed in that engagement, and appropriated the principal part of the balance of the $2200 to the business of the firm. For the purpose of indemnifying Moses Keech from any loss as surety on the said bond, John Keech gave him a judgment-bond conditioned for the payment of $2200 in ten days with interest, and with the understanding that it was to be placed in Mr. Pennypacker’s hands, and if necessary execution was to be issued and levied on the store goods. This bond remained in Mr. Pennypacker’s hands until the 24th of December, 1849, when judgment was entered upon it and execution issued; Mr. Pennypacker acting as the attorney of Moses Keech.</p> <p>The claim of Abigail Pyle was for money loaned in small sums, from time to time, by her to John Keech. With the exception of $180, the money appears to have been borrowed after April 1, 1848, and to have gone into the business of the store. The sum of $180 was received by John Keech in the year 1845. She became dissatisfied, and wanted her money; he, therefore, on the 12th of December, 1849, gave her a bill single for $510, with warrant of attorney to confess judgment, payable in five days, with interest. TMs amount included all, principal and interest, that was owing to her, whether by himself or the firm. Mr. Pennypacker was her counsel.</p> <p>The evidence in relation to the circumstances under--which the liability to Moses Keech was contracted, was from Mr. Penny-packer and John Keech, who were examined as witnesses in his behalf. Their statements on this point were objected to by the counsel of the other parties, as being the declarations of a party interested.</p> <p>The auditor appointed in the matter decided that the statements were admissible, on the ground that they were made at the time of the execution and delivery of the bond—tending to show its consideration and the motives for executing it as between the parties to the instrument in the presence of both, and at a time when no other persons were interested; that they were part of the res gestse.</p> <p>Mercer E. Gibson was not consulted in relation to the judgments confessed by Keech, and had nothing to do with any of them except that of William H. Brown & Co., in which both he and Keech united.</p> <p>It was alleged that Keech appropriated a considerable amount of the partnership property to the payment of his private debts, about the time the executions were issued.</p> <p>The auditor decided that the individual as well as the partnership creditors had a right to resort to the goods of the firm, and 'distributed the proceeds of the sheriff’s sale according to the order of the executions.</p> <p>William H. Brown & Co. filed the following exceptions to the report of the auditor:—1. The auditor erred in not awarding to William H. Brown & Co. their whole claim. 2. He erred in awarding to Job Hayes, Moses Keech, and Abigail Pyle, their claims in full. 3. He erred in allowing them interest up to the day of the sheriff’s sale. 4. He erred in not charging the expenses of the audit on the dividends of the creditors pro rata. 5. He erred in admitting the testimony of John Keech.</p> <p>The exceptions were dismissed by the court below, and the same exceptions, on the part of William H. Brown & Co., were assigned as error.</p>

<p>Two partners took from a lessee an assignment of a lease of rooms in a building, and put therein a steam-engine. Subsequently, S. one of the partners, without the authority or knowledge of the other, executed a sealed agreement, leasing to the plaintiffs a part of the premises, with the right of attachment to the steam-engine to the extent of eight horse power, the occupancy to continue for three months longer than the term of the original lease. Soon after the execution of the sealed lease, the other partner sold his interest in the partnership to T.; and S. and T. continued in the occupancy of the building till the termination of the original lease, T. receiving from the under-lessees, the plaintiffs, the rent from time to time during the existence of the original lease, except the rent for the last quarter. After its termination S. and T. removed the engine to another building. An action of assumpsit was brought by the under-lessees under the sealed lease, against S. and T. for damages for reduction of the power, and also for the removal of the engine, the declaration alleging the sealed agreement, and that by the transfer T. assumed the obligations of the former partner under the sealed lease by S.; but not averring that it was rescinded, or that any new contract, to the same effect as the sealed contract, was made by S. and T.: It was held, that no such new contract was to be implied against T. the incoming partner, from his receipt of the rent; that none such was to be inferred from the partnership; that the sealed agreement by the one partner was not evidence in the suit; and that no cause of action against the defendants was stated in the declaration.</p>

<p>1. Damages for the breach of an unexecuted parol contract to convey land cannot be recovered under a declaration for goods sold and delivered, or money had and received; but if the contract has been so far executed as to take it out of the statute of frauds, and to vest in the purchaser an interest or estate in the land, so as to entitle him to a conveyance, the purchaser, on the conveyance'of the land by the vendor to another, may waive the tort, and recover his portion of the price received for it, under the count for money had and received.</p> <p>2. To entitle a purchaser to recover the possession under a parol contract, he must show delivery of possession in pursuance of, and in part performance of the contract: payment of purchase-money alone is not sufficient; temporary erections or cutting of wood on the land will not answer; and where such payment, and the cutting of wood, and surveying the land only are proved, the purchaser is not entitled to recover from the vendor the one-half of the money for which the latter subsequently sold the land to another.</p> <p>3. The provisions of the statute of frauds are beneficial, and should not be further encroached upon.</p>

<p>1. A proprietor of two mills on the same stream, one below the other, directed in his will, in providing for the sale and conveyance by his executors, that in times of low water, the two mills “ should have an equal use of the water alternately.”</p> <p>It was held, that it was not necessary to the ascertainment of the equality of the water, that the lower mill should be of the very kind or capacity of the mill existing at the date of the will: and that the erection of an axe factory by the owner of the lower mill did not prejudice his right to an equal quantity of the water of the stream.</p> <p>2. The owner of the lower mill has the right to recover damages for the undue use and control of the water of the stream by the owners of the upper mill, even though the former has leased the mill to a tenant, provided he reserved in such lease a portion of the water for the use of another establishment, the legitimate operation of which was affected by sueh misconduct.</p>

This was an action which was instituted before a justice of the peace in the name of the Commonwealth of Pennsylvania, for the use of William Walp, against Stephen Balliet, Jr., under the 68th section of the general road law of 13th June, 1836, in which it is provided, “ If any person shall stop or obstruct any public road or highway, or shall commit any nuisance thereon, by felling trees, making fences, turning the road, or in any other way, and do not, on notice given by…

This case came up from the Nisi Prius. It was an action brought to July Term, 1847, by Jose Cabarga v. C. E. Seeger and Henry Tilge, executors of the will of Charles Meyer, deceased. The original declaration contained the common money counts, viz., counts for money “lent and advanced,” “paid, laid out and expended” for defendant’s use; also a count for “money had and received,” and a count- on an account stated.

This was an action on the case, brought to April term, 1849, by David Schmoyer and others, administrators, &c., of the estate of Abraham Schmoyer, deceased, against Jacob Schmoyer. The declaration was in the usual form, for money lent by the decedent to the defendant, for money paid, money received, goods sold and delivered, and for money due. The time of the death of Abraham Schmoyer was not stated on the paper-book received; it occurred after 6th April, 1848.

<p>1. Whether commissioners who were authorized by law to view and lay out streets in a town, have or have not strictly pursued the directions contained in the Acts of Assembly upon the subject, an Act of Assembly passed whilst exceptions to the -report of'the commissioners are pending, prescribing a construction to be given to the Act, and directing the same to be confirmed, is constitutional.</p> <p>2. The provision in the 4th sect, of the7th art. of the Constitution of Pennsylvania that “ The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor, before such property shall be taken," has no application to cases in which duties are imposed upon individuals instead of privileges conferred, viz., to the case of the appointment by Act of Assembly of commissioners to lay out streets in a town.</p> <p>3. Commissioners were appointed by Act of Assembly to lay out streets in Norristown, Montgomery county: it was held, that compensation to owners of property taken for the purpose, must be ascertained and paid before the property is appropriated, or an appropriate remedy therefor provided upon an adequate fund; and the county of Montgomery being held to be liable, at the time of appropriation, for the damage done, this court considered that to be an adequate security to the persons injured by the proceeding.</p>