Volume 17 — Sergeant & Rawle's Pennsylvania Reports

<p>IN ERROR,</p> <p>On a writ of error to the Court of Common Pleas of Franklin county, the case appeared to be an action of debt brought by Matty Burkholder, the plaintiff below and defendant in .error, against Benjamin Eby, the plaintiff in error and defendant below, in which a verdict and judgment were rendered in favour of the plaintiff below for one hundred and thirty-seven dollars and twenty-seven cents.</p> <p>At Jlpril sessions, 1820, the defendant, Benjamin Eby, was indicted and convicted in the Court of Quarter Sessions of Franklin county, for fornication and begetting a bastard child on the body of the plaintiff,. Matty Burkholder, and the court passed the following sentence:—</p> <p>“Whereupon the court do adjudge the defendant to pay .a fine to the commonwealth of one dollar, to pay twenty dollars to Matty Burkholder for lying-in expenses, to pay nine dollars, which will be one dollar per weék until to-morrow, from the birth of the child; from that time to pay at the rate of one dollar per week until the child arrives at seven years of age; to be bound himself in one thousand dollars and one good security in one thousand dollars to indemnify thq county; money to be paid quarterly — pay the costs of prosecution, and stand committed until the sentence be complied with.”</p> <p>The defendant excepted to the opinion of the court, admitting in evidence the record of this conviction and sentence: and, also, requested the court to charge the jury,—</p> <p>1. That the present action of debt, having been brought on a sentence and judgment of the Court of General Quarter Sessions of the peace of Franklin county, on an indictment against Benjamin Eby for fornication and bastardy with Matty Burkholder, the plaintiff, cannot be supported.</p> <p>2. That the said indictment, and the trial, sentence, judgment and all other the proceedings thereon, being in the name of the commonwealth, this action cannot be sustained.</p> <p>3. That the sentence and judgment of the court is that Benjamin Eby pay so much for the support of a bastard child, and not generally so much to Matty Burkholder, and therefore the present action does not lie.</p> <p>4. That thé sentences and judgments of the Court of Quarter Sessions are enforced by imprisonment of the defendant until complied with; or by his entering into recognizances conditioned for their performance, which may be suéd, and that no other modes of enforcing obedience are known to the law; and that, consequently, this action cannot be supported.</p> <p>On the above points the court charged the jury as follows — that it is the opinion of the majority of the court that on the proceedings of the Court of Quarter Sessions, sentence, &c., as above, this action can legally be sustained.</p>

APTEAl. Appeal from the opinion of Gibson, C. J., at a Circuit Court for Cumberland county, held in April.last.

<p>A counsel who has been consulted concerning the title of land about to be sold under an execution, and stated correctly that it was subject to liens, by which purchasers were deterred from bidding, is not thereby precluded from becoming a purchaser himself. ■</p>

IN ERROR. Writ of error to the Court of Common Pleas of Cumberland county, in an action of dower brought by Elizabeth Cauffman, the defendant in error-and plaintiff below, against John Cauffman, to recover her dower in a house and lot situate in the borough of Car-lisle', of which her late husband, Christian Cauffman^ died seised. The property rented for about two hundred and fifty dollars per annum. .

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Franklin county, where a verdict and judgment were rendered in favour of the plaintiff below, and defendant in error, the commonwealth, for John 2?.. Latimer, administrator of John Alexander, against Purviance, Crawford and others, .defendants below and plaintiffs in error. The case was tried before the associate judges of the court below.</p> <p>Scire facias to recover a share of the estate of John Alexander, who died in 1798. Plea nil debent. The share of the plaintiff was stated to be one tenth.</p> <p>On the 15th of September, 1800, the first administration account of John Calhoun and Samuel Purviance, administrators of John Alexander, was settled, stating a balance of two thousand seven hundred and forty-four dollars and fifteen cents, in their hands. The secend-administration account was filed on the 9th of March, 1813, and confirmed on the 8th of June, 1S13, by the Orphans’ Court, finding a balance in the hands of accountants, for distribution according to the decree of the court thereto annexed, thirteen thousand, two hundred and seventeen dollars and eighty-five cents- .</p> <p>A feigned issue was tried in the Circuit Court of that county, entered in 1805, in which William Alexander, Andrew Galbraith, and Jane, his wife, Oliver Alexander, and Elizabeth, his wife, Richard Duffy, and Martha, his wife, were plaintiffs; and William Jamieson, and L. his wife, John Stewart and, Margaret, his wife, Robert Gitteland, and Esther, his wife, Thomas Auld, and Elizabeth, his wife,--— Tate, and Agnes, his wife, John Alexander, - Huston, John ———, and Jane, his wife, Agnes Milligan, and Quentin Anderson, and Nancy Ann, his wife, were defendants: and on the 9th of April, 1811, there was a verdict for the defendants. This appeared by the docket entries; but it was admitted that the declaration and other papers in the cause, could not be found; and that Mr. Duncan was the counsel of the defendants in that action. It was also admitted, that Mr. M‘Cullough was the counsel of the administrators of John Alexander, in stating and presenting and settling the second administration account.</p> <p>The plaintiff next offered in evidence, a paper dated the 17th of April, 1813, in the handwritingof and subscribed with the initials of J. Hamilton, deceased, late president of the court, and the endorsement of sums on the same in the handwritingof Mr. M‘Cullougk, and also two papers attached thereto, in the handwriting of Thomas Duncan, Esq., marked, “ filed October, 1812, and November, 1812.” It was admitted that the said papers came from the office of the clerk of the Orphans’ Court. This evidence was objected to by the defendants, but the court received the evidence, and the defendants excepted.</p> <p>The following was the decree above-mentioned:</p> <p>No. 458, administration of John Alexander. On the administration account, the court made a decree as follows:</p> <p>It appears to the Orphans’ Court, that, although the legislature, evidently, under our intestate acts, have preferred representation in every case where there is a survivor of brother or sister, or survivor of any class of the next of kin, it seems to be otherwise when there are no survivors. Here all the uncles having died, and the issue being all cousins, all equally next of kin to'the intestate, at the time of his death, the court is of opinion that this is a case not contemplated by the act, so as to divide the intestate’s estate per stirpes. The decision in England, on a statute nearly in the same words, has been according to this construction.</p> <p>Where there is a survivor, it is reasonable to prefer him: and that principle adopted as to him, carries the distribution throughout. Here all are equal — all are next of kin, and there seems to be no reason for inequality of division. If the contrary was intended by the legislature, it is a casus omissus. The court, therefore decree, that distribution of the intestate’s estate be made among all the persons named; they being cousins, and being in equal degree to the intestate. . J. H.</p> <p>(Endorsed,) This decree to be open to an application for consideration at next term, if required. J. H.</p> <p>The following was the paper in the handwriting of Mr. M‘Culloughf found endorsed on the back of the foregoing decree, and it was conceded to have been made as a memorandum some time after the papers had been filed.</p> <p>The distribution according to the within decree is as follows; to wit:—</p> <p> Dots. cts. </p> <p>John Alexander, one share, 1320.784</p> <p>William Jamieson and wife, one share, 1320.784</p> <p>John Stewart, and Margaret, his wife, 1320.784</p> <p>Robert Gilleland, and Esther, his wife, 1320,78-4</p> <p>Thomas Auld, and Eliza, his wife, - 1320.784</p> <p>Agnes Tate, - 1320.784</p> <p>Mary Huston, - 1320.784</p> <p>Jane Milligan, - - - - - 1320.784</p> <p>Agnes Lauson,. - 1320.784</p> <p>Quentin Anderson, - 1320.784</p> <p>On a separate piece of paper, in Mr. Duncan’s handwriting, was the following:—</p> <p>Distribution to be made, subject to a supplemental account,-to be. rendered by administrators, and t,o a further allowance to be made to them.</p> <p>The defendants in the feigned issue, who represent the intestate, submit to the court to decree in what manner distribution is to be made. John Alexander died intestate since the act of 1794, leaving at his death his next of kin of equal degree, and his sole representatives,</p> <p>1. John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Steivart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, children of Hugh Alexander, who was the brother of William Alexander, father of the intestate.(4)</p> <p>2. Thomas Auld and Eliza, his wife, late. Eliza Alexander, Agnes Tate, late Agnes Alexander, children of John Alexander, a brother of William Alexander, who was the father of the intestate. (2)</p> <p>3. Mary Huston, the daughter and only child of James Alexander, the brother of William Alexander, who was the father of the intestate.(l)</p> <p>4. Jane Milligan and Agnes Lauson, children of Jane Lauson, sister of Isabella Lauson, who was the mother of the intestate. (2)</p> <p>5. Quentin Anderson and Nancy Ann, his wife, the daughter and only child of Robert Lauson, the brother of Isabella Lauson, the mother of the intestate. (1)</p> <p>The court direct distribution to be made amongst the parties above stated, under advisement, and will decree the several distributive parts under the intestate act on the Monday of November term.</p> <p>In the handwriting of Mr. Duncan.</p> <p>Distribution decreed,’subject to a supplementary account, to be rendered by the administrators, and subject to any further allowance the court may make to the administrators, to wit: — One fifth part to John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Stewart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, the children of Hugh Alexander, who was the brother of William Alexander, the father of John Alexander, the intestate.(4)</p> <p>One fifth part, to Thomas Auld and Eliza, his wife, late Eliza Alexander, Agnes Tate, late Agnes Alexander, and- John Alexander, children of John Alexander, a brother of William Alexander, yvho was the father of John Alexander, the. intestate. (3)</p> <p>One fifth part to Mary Huston, the daughter and only child of James Alexander, the brother of William Alexander, who was the father of John Alexander,'the intestate. (1) - ’</p> <p>One fifth part to Jane Milligan and Agnes Lauson, children of Jane Lauson, the sister of Isabella Lauson, the mother of the intestate, to hold as tenants in common. And one fifth part to Quentin Anderson and Mary Ann, his wife, the'daughter and only child of Robert Lauson, brother of Isabella Lauson, the mother of the intestate.</p> <p>• The defendants gave in evidence the receipt of John Alexander, dated the 2nd of March, 1819, for two hundred dollars, and then proposed to add the plea, that the plaintiffs ought not to have or maintain their action aforesaid, against them: because they say, that the said John Alexander, deceased, of whose estate, the said John R. Latimer is administrator, was not the said John Alexander mentioned in the decree of the Orphans’ Court, recited in the. plaintiffs’ writ of scire faciqs, and was not one of the heirs of John Alexander, who died in Chambersburg: and this they are ready to verify. '</p> <p>The defendants also proposed to give in evidence, that John Alexander, for whose representative this suit is prosecuted, is the same John Alexander, to.whom the said payment was made on the 2nd of 'March, 1819, and that he is the seme, Alexander for whose administration this suit is brought, and that the said John Alexander, to whom said payment was made, and whose representative the said John R. Latimer is, was the son of John Alexdnder, and not the son of Hugh Alexander. That there was a Hugh Alexander and a John Alexander, (uncles of the said John Alexander, who died.in Chambersburg:) and that the said uncles, Hugh and John, left two sons of the name of John Alexander, who are cousins in the same degree, to the decedent John Alexander, who died in Chambersburg; and also offered to prove by -the declarations of the said John Alexander, for whose representative this action, was prosecuted, and by other evidence, that there are several other cousins in the same degree, not named in the issue in the Circuit Court, or in the,Orphans’ Court; who are entitled in equal shares with the parties named, to a distributive share of the estate of the said decedent, John Alexander, who died in Chambersburg, as aforesaid. And the said John Alexander, for whose representative this suit is prosecuted, is not the John Alexander named in the decree of J. H., president of the court, given in evidence, or in the endorsement. And- that -the persons entitled as heirs in the same degree above-mentioned, and not named in the decree, as well as the said John Alexander, by whose representatives this suit is prosecuted, at the time of the said decree, and ever since, resided out of the United Stales, and that John 'Alexander, the son of Hugh, also resided out of the United States. To the admission of which plea and evidence, the plaintiffs objected, and the court refused to permit the pleadings to be amended, or to receive the evidence. To which opinion of the court, • the defendants excepted.</p> <p>The defendants requested the court to instruct the jury,</p> <p>1. That the distribution made, as is alleged by the plaintiff, in the Orphans’ Court of Franklin county, and as given in evidence, is not conclusive as to the said parties, being the only representa-’ fives of the intestate. ) . '</p> <p>2. - That other persons who stand in the same relation, though then unknown, are not barred of their claims by the omission to name them in such proceedings in the said Orphans’ Court.</p> <p>3. That it is incumbent on the plaintiff to make out with reasonable certainty all the heirs and representatives of the said testator, to enable him to recover what is the distributive part of his intestate, if entitled to any.</p> <p>4. That it is uncertain whát is .the distributive share of the plaintiff’s intestate.</p> <p>5. That the plaintiff’s intestate having in the receipt of 1819, given in evidence, described himself as John Alexander, son of John, is not entitled to recover a tenth part of the balance on the administration account, under the decree of the Orphans’ Court of the said county, and under the evidence given in this cause.</p> <p>6’. That the plaintiff .cannot recover in this action without showing by other proof than the decree of the Orphans’ Court, that his intestate was one of the heirs of the intestate, and was entitled to a share of his estate, and was the person to whom the share was decreed: and as no such evidence has been given, the plaintiff cannot, therefore, recover.</p> <p>7. That the plaintiff, if entitled to recover as an heir a distributive part, is not entitled to receive interest on such distributive share until after demand made.</p> <p>The court directed the jury as follows: — '</p> <p>1. That the proceedings and decree of distribution, made in the Orphans’ Court, is, from the lapse of time and acquiescence, conclusive.</p> <p>2. That the proceedings had,and decree of distribution made in Üie Orphans’ Court, excludes unknown relations, if any such there be.</p> <p>3. That the record of the Orphans’ Court is a sufficient designation pf the representatives of the intestate; arid from it, under the pleading, the jury may find for the plaintiff.</p> <p>4. That there is some uncertainty as to the sum now due, arising from the payment made, and interest that may be chargeable; of all which the jury is to judge, but the plaintiff is entitled to a tenth part according to the decree.</p> <p>• 5. That the receipt of 1819, signed by John Alexander, as son of John, is no bar to the plaintiff’s recovei'y.</p> <p>6. That the evidence exhibited on the trial of this cause, may by the jury be considered, under the pleading, sufficient to warrant the plaintiff’s recovery.</p> <p>7. That if from the evidence the jury are of opinion, that the administrators used the money of the intestate as active private funds employed by them in business, they may and ought to be charged with interest thereon after a reasonable time from their final settlement at the Orphans’ Court: but the jury is to judge from the evidence as to whether the administrators ought not to have, say, from one to five or six months after' the said settlement, to vest the money before they be charged interest.</p>

IN ERROR. Error to the Court of Common Pleas of Cumberland county. The plaintiff in error was plaintiff below, and brpught this action of debt on a sealed note drawn by the defendant in favour of the plaintiff, dated the 21st of January, 1819, for three hundred and thirty-eight dollars and thirty-three cents, payable on the 1st of May, 1822.

IN ERROR. Writ of error to the Court of Common Pleas of Jldams county. The plaintiffs in error were plaintiffs below.

IN ERROR. In the Court of Common Pleas of Franklin county, to which this writ of error .was directed,, the plaintiff below, John McCullough, administrator of John Cunningham, deceased, brought this suit against the-plaintiff in error and defendant below, William McDowell, to August, term, 1828, on a single bill, executed by the defendant to the intestate, dated the 27th of May, 1800, for twenty-seven pounds, payable on the 1st day oí .February, 1801, with interest from…

IN.ERROR. Error to the Court of . Common Pleas of Perry county, where the suit was ejectment between the same-parties. There was no detailed statement of the evidence filed; but the following facts appeared from' the charge of.the court, to have been in evidence, and are all that are material to the error now assigned therein. •

<p>A decretal order made by this court in a matter brought up by appeal from the Orphans’ Court, when not final in its nature, may be modified or altered by the court at a subsequent term.</p>

<p>Devise by testator to his sons James and David of all the residue of his estate to them and each of them share, and share alike, to them and' each of them their heirs and assigns for ever; and in case either or both of his said sons should die without heirs of his body, their share or shares to be equally divided among certain legatees before named: held, that Joseph and David were tenants in common in tail, with a vested remainder on the deatli of either, without heirs of the body, to the legatees mentioned.</p> <p>Children merely named in the will as having received their share of the testators estate, are not entitled, tinder a devise to “ the legatees above named.”</p> <p>But David is a legatee within such description, and entitled tó a share of Joseph’s half on the death of Joseph Without issue'.</p>

<p>The act of assembly of the first of April, 1822, providing for the closing of the concerns of banking institutions, is constitutional, and operates in respect to actions pending at the time of its enactment,</p>

<p>IN ERROR.</p> <p>Writ of error to the Mayor’s Court of the city of Philadelphia.</p> <p>John Neal was indicted for an assault and battery on Jabesk Jlshmore,.and the jury found a special verdict, that the defendant committed the assault and battery as charged in the indictment, on board of a brig, lying in the river Bet'aivare, 'at the end of the wharf called Flint ham’s wharf; that the said ves'Sel was lying beyond low-water mark opposite to Philadelphia county and city, and was by cables attached to the said wharf, which’ wharf .is in the said city. ,</p> <p>If the court consider that the said brig was within the city aforesaid, then the jury find the defendant guilty; but, if the court consider that the said brig was not in the said city, the jury then say the offence was not committed within' the jurisdiction of this court, and that they find him not guilty.</p> <p>Or. this verdict the Mayor’s Court entered judgment against the defendant, by whom this writ of error was taken out.</p> <p>The question submitted to this court was, whether the offence was committed within the jurisdiction of the Mayor’s Court for the city of Philadelphia.</p>

<p>An absolute deed and defeasance, made at the same time, constitute a mort» gage: and, if the defeasance is not recorded, it is to be considered as an unrecorded mortgage, and postponed to a judgment creditor of subsequent date, notwithstanding the absolute deed has been duly recorded.</p>

IN ERROR. Error to the Court of Common Pleas of Philadelphia county i This was an action of debt by Samuel Wallace, brought against Thomas Coates, jr. Esq., a justice of the peace of Philadelphia county, to recover-the penalty of fifty dollars, given by the 26‘th section of the act of assembly of the 28th of March, 1814, for taking illegal fees.

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

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of the county of Philadelphia.</p> <p>■ Covenant, by the plaintiff, Peter L. Berry, against the defendant, Joseph M‘Mullen, to recover the sum of thirty dollars, being a half year’s ground rent, due the 18th of April, 1821, issuing out of a lot-of ground situate at the corner of Chesnut and Juniper Streets, in the city of Philadelphia. The evidence on both sides consisted of different conveyances of the lot and the ground rents issuing out of it, iogether with admissions by'the parties, of certain facts.</p> <p>On the 18th day of April, 1812, the lot on Chesnut and Juniper Streets, being then owned by Edward Burd and Edward Ship-pen Burd, was conveyed to Robert Mercer ánd Joseph M'Mullen, their heirs and assigns, by Messrs. Burd, reserving a ground rent, payable to them, of one hundred and twenty dollars per annum, payable half yearly on the 18th day of the months of April and October, in each and evéry year, which Mercer and M'Mullen, by express covenant, contracted to pay. On the 22nd of April, 1817, Joseph M‘Mullen and wife, released all the moiety of McMullen in the land, to Robert Mercer, his co-grantee, subject to the payment of the rents and the performance of the covenants in the deed from the Messrs. Burd to them. By this operation, Robert Mercer became the sole proprietor of the lot. On the 22nd day of December, 1818, Robert Mercer and wife, conveyed the lot to Berry, the plaintiff, in consideration of one dollar paid, and of the performance of the covenants of the indenture, among which was an express covenant by Berry, to pay the paramount ground rent to the Messrs.- Burds, and ah additional' ground rent of sixty dollars per annum to the said Robert Mercer, his heirs and assigns for ever. On the 25th day of August, 1819, Robert Mercer, being in failing and insolvent circumstances, assigned,'among other things, his interest in th¿ ground .rent, reserved from the lot by his deed to Berry, off the 25th of December, 1818, to Joseph M‘Mullen and Michael Nesbi’t, in trust foi; his creditors. On the 20th of November, 1820, Joseph McMullen, the defendant, and Michael Nesbit, assignees of Robert Mercer, for the 'consideration of ten dollars,, conveyed the ground rent of sixty dollars per annum, to Jane Berry, a daughter of the plaintiff. Miss Berry, subsequently, and before the bringing of this suit, died intestate, and without issue; and by the intestate laws of this commonwealth,-this ground rent, so owned by her, accrued to her father, Peter L. Berry, the plaintiff. Sometime in 1820, the precise time no.t being stated, the lot itself was levied upon at the suit óf a creditor of Mr. Berry, and sold by the sheriff by virtue of a writ of venditioni exponas, at public sale, for forty-five dollars. At the sale Mr. M‘Mullen, the defendant, bid for the property, and, on its being struck off to him, signed the usual conditions of sale, the name of no other person being then mentioned by him as interested in the purchase.</p> <p>A few days afterwards he came to the sheriff’s office with Mr. George Mercer, and requested the sheriff to make the deed to him, Mr.' George Mercer'. The latter gentleman paid the purchase money, and on the 1st of November, 1820, received a deed for the lot from the sheriff, subject to the two ground rents of one hundred and twenty dollars and sixty dollars per annum. From receipts produced upon notice, by the defendant, it appeared that he had, during the years 1823 and 1824, paid the paramount or larger ground rent of one hundred and twenty dollars, to Mrs. M'Pherson, who had derived title to it through the Burds. Upon the lot there was a partial erection of a building, which was in a dilapidated condition, having been abandoned for some time.</p> <p>The plaintiff contended,</p> <p>1. That in point of fact; M'Mullen was the real purchaser of the lot at the sheriff’s sale — that •George Mercer was a mere trustee for him — that he was the cestuy que trust, the person beneficially interested in the purchase. , ,</p> <p>2. That these facts being established, it is competent for Mr. Berry, the plaintiff to maintain this action of covenant against M‘Mullen for.the privity of estate; the plaintiff being the owner of the ground rent, and the. defendant the owner of the soil.</p> <p>Charge of the Court. — The question of fact, whether George Mercer was a mere trustee for the defendant,'is a matter for- your,' peculiar and exclusive cognisance, and the court are not'disposed to entrench upon your duties by pressing any positive opinion upon you they may-have formed, as to how far the evidence supports this position of the plaintiff. The able advocate of the plaintiff supposes that the facts of the defendant having bid at the sale, and signed the conditions, and paid the paramount ground rent to Mrs. M‘Pherson, the proprietor, are conclusive as to his being the real owner Of the land, and of Mr. George Mercer being, in his language, “a man of straw.” This, however, does not appear so very clear to the court. - These acts are of a very equivocal character. In practice, it .is very ..common for one man either to bid for another, or to substitute another person as purchaser by subsequent arrangements. The fact, as the payment of the paramount ground rent by Mr. M‘ Mullen, is more so. He was one of the original grantees of the lot, to whom the Burds conveyed it, and was bound by his express covenant, to,pay the rent to the Burds, or their assigns, in whosesoever hands the land might be. These facts, however, are not without weight, and, if they, in any respect, go to establish that Mercer was a mere trustree of McMullen, and you arfe the only judges of this part of the case, then the other question made by the plaintiff’s counsel arises, and upon which the court are called upon to express an opinion by both of the parties. ’</p> <p>Without saying whether a cestuy que trust, a person for whose use real estate was held nominally by a trustee who was in possession of it, and in the permanency and enjoyment of its issues and profits, and where the trust appeared by deed, or' other unequivocal evidence would or would not be liable for rent in such a case as this,, and, in this form of action, the court are of opinion, that in the case before them, the plaintiff cannot recover on this ground. It is true, as the plaintiff ’s counsel has contended, that in Pennsylvania the courts of common law, from the necessity of the case, exercise equitable powers, and that recoveries upon equitable principles are had in other courts, which could not be attempted with any hope of success in the country from which we draw our sys-. tern of jurisprudence. But the learned counsel hasnot shown a case in which the extraordinary powers of a court of equity have been employed to enforce such a recovery as this, depending as it does upon strict legal principle, operating in most instances, and in this particularly so, with .great severity. It is clear law that the assignee of such an estate, who is not bound by personal covenants, but liable from privity of estate, on Covenants running wifh the land, may assign it to a beggar, a bankrupt, or even a feme covert, and such assignment is valid, and will discharge him from the subsequent rent. In one of the decided cases, Strange, 1220, ,2 Mk. 546, where an assignee, to get rid of the term, assigned it to a female, a prisoner in, the Fleet Prison,' for five shillings, which money it appeared he had given or loaned her for the very purpose; the transaction was held not to be fraudulent, and the assignment valid, and the court professed to go upon equitable principles. If a man who has made an injudicious bargain, can assign it- to a beggar to get rid of it, it is difficult to perceive why the more cautious man who anticipates evil' by -providing such person for the assignee in the first place, must be made to smart’for his prudence. It is admitted that if Mr. MlMulleñ had”taken the deed on the 1st of November-, 1821, and on the second, transferred it to George Mercer, that the plaintiff’s remedy would only be against the latter. The equity, then, talked of, would seem to depend upon a form of conveyance. The jury will, however, understand these remarks with reference to the case before them, inwhich-there is'no testimony that Mr. M‘Mullen ever took possession of,the lot on or after the 1st, of November, 1820, or that’ he ever received one farthing of its rents, issues, and profits, or in, any way enjoyed it.' of them. There is a fallacy in the argument of the counsel for the plaintiff, when he urges that Mc Mullen, if you find in his favour, will hold the land discharged of rent, supposing as he does, that he is the beneficial owner. This is not the case. The land is still liable. • If improvements are erected upon it, as from its very eligible situation, it is most likely there will be soon, Mr. Berry’s remedy by distress still remains, and he still can sell the land, by a suit, judgment and .execution against the assignee of the soil. Upon the whole, gentlemen, the court are clearly of opinion that there is no principle of law or equity which under the circumstances of this particular case, will enable the plaintiff to maintain this action of covenant, and that your verdict should be for the defendant.</p>

<p>The Statute 43 Jlliz. c. 4, of charitable uses, is not extended to Pennsylvania, but still the principles of it, as applied by chancery in England, obtain here, by force of our own common law, and relief will be given so far as the power of the courts will enable them.</p> <p>A bequest of money to a church, to be laid out in bread annually for ten years, for the poor of the congregation, is good. "x</p> <p>So is a bequest of money to trustees, with directions to invest it, sir that the interest may be applied, from time to time, towards thé education of young students in the ministry-of a congregation, under the direction of|he vestry.</p>

IN ERROR. Error to the District Court for the city and county of Philadelphia, where a verdict and judgment were rendered in favour of Henry S, Tanner, the defendant in error and plaintiff below, against Francis Kearney, the plaintiff in error and defendant below.

<p>A party to a cause, sworn on his voir- clire to his book of original entries, cannot be .examined generally by the opposite party, without his consent, but can only be examined to show it was not his book of original'entries, of that the entries were not made at the time.</p> <p>Where there is a sale of personal property, aud.possession suffered to remain in the vendor, as between the vendor and vendee, the property belongs to the latter-; but if the vendor transfer and delivered it to a new purchaser, bona fide, and without notice, such new purchaser is entitled to hold against the original vendee.</p> <p>When goods are levied on, and taken in execution, the court ought to quash a replevin issued for them.</p> <p>When, however, this is not' done, a party may avail himself of-the statute by pleading in abatement, or bar such levy and taking in execution, and the cause of action on which the judgment and execution were obtained, cannot be inquired into in such case.</p>

<p>The owner of a lot, forty-eight front, divides it into three lots, and erects buildings thereon: after his death, his children, to whom they descended, make partition by deed, assigning two of the houses and lots to one child, and one house and lot to the other child, by metes and bounds; it having previously been ascertained, that the westernmost line of the original lot was laid two feet and a half on the ground of a third person: it seems, the owner of the westernmost house and lot, claiming under one of the children, must bear the loss, and cannot come on the owner of the adjoining lot to compensate it. What possession of a city lot is required' under the statute of limitations. ,</p>

IN ERROR.' Writ of- error to the Court of Common Pleas of. Montgomery county, in an ejectment for lands- in Lower Merion township, brought by Robert M‘Clena chan and William, Diehl, and Hannah his wife, late Hannah M‘Clenachan, plaintiffs below and defendants in error, against John Thompson and others, defendants below and plaintiffs in error. The court below, on the cáse stated, rendered judgment for the plaintiffs in that court.

<p>After going to trial on the merits, the .court will not reverse the judgment because there is no plea nor issue, and blanks are left for dates- and sums in the declaration.</p>

<p>in error.</p> <p>. Writ of error to the Court of Common pleas of Montgomery county, where a case in the nature of a special verdict was stated, and judgment rendered in favour of the defendant below, and defendant in error.</p> <p>The. suit was brought by Edward King, administrator of Thomas Perfirm, deceased, against Joseph Crawford and William Hamill, executors of William Clennell, deceased, to recover á legacy of one hundred and sixty dollars, which was claimed under the will of said William Clennell, hereafter stated. Thomas. Perfirm died on or about the first of ’October, 1819, intestate, and a few months under twenty-one years of age.</p> <p>The testator, William Clennell, by his will proved the 3d of October, 1815, bequeathed as follows:—</p> <p>“ It is my will, and I do hereby authorize and direct my executors hereinafter named, as soon as convenient after my decease, to make sale of all my .property, real and personal, in such manner as they may think proper, and after the'payment of all my legal debts, and funeral' expenses, the amount of the «money remaining, in the hands of' my' executors to be distributed in the. following manner, viz: It is my will, and I do hereby direct, that my daughter, Mary Clennell, shall, at my decease, have, the sum of one dollar. It is my will, and I do hereby direct, that my daughter Hannah Clennell, shall at my decease, have the sum of thirty dollars. It is my-will, and I do hereby direct, that my daughter Susan Clennel, shall at my decease, have the sum of one dollar. It is my will, and I do hereby direct, that my wife Elizabeth Clennell at my decease, shall have the amount of money remaining in the hands of my executors, to be put out at interest, or in such stock as my executors may think most productive, the whole income thereof to be paid annually to my said wife Elizabeth until Thomas Perfirm, arrives at the age of twenty-one years; then the said Thomas Perfirm to have one hundred and sixty dollars, and my wife Elizabeth to have the income of the remainder during her natural life. It is my will, and I do hereby direct', that at the decease of my said wife Elizabeth Clennell,my son William Parker Clennell, shall have all at his own.disposal, &c. It is my will, and I do hereby direct, that Joseph Crawford, of the township, county, and state aforesaid, and William Hamill, of Norriton, township, county and state aforesaid, be my executors.</p>

<p>The lien of a judgment not revived, expires on the termination of the five years established by the limitation act of 1798, as against another judgment . creditor, notwithstanding the death of the debtor before the end of the five years. ' ' ■ '</p>

<p>By virtue of a writ of venditioni exponas, issued in this cause, the sheriff sold the real estate therein described, for the sum of one thousand five hundred dollars, and paid the money, after deducting his costs, &c., into court. On the 30th of July, -1S27, an auditor was appointed to examine and report on the liens, who, on the 15th of September, 1827, reported,</p> <p>That, on the 10th of May, 1817, Stacy Gillingham, the defendant, executed? to Isaac .Worrell and Nathan 'Harper, a bond conditioned for the payment, in one year, of nine hundred and fifty dollars, with lawful interest; and, to secure the payment thereof, executed a mortgage, bearing the same date, to the said Isaac and Nathan, upon a messuage or tenement, and lot or piece of ground, situate in the borough of Frankford, in the county of Philadelphiaf which premises the said Isaac Worrell and Nathan Harper, by deed poll, bearing even date therewith, had granted to the said Stacy Gillingham. This mortgage was not recorded until the 13th of Upril, 1819. -</p> <p>On the 27th of February, 1819, Stacy Gillingham executed to Jacob Lesher, the plaintiff, a bond conditioned for the payment of one thousand six hundred dollars, in one year, with interest.- On the 8th of Upril, 1819, judgment was entered, by confession, on the bond, in the Supreme court to March term, 1819. On the 16th of January, 1824, an agreement was entered into, between J. Y. Castor, Esq., attorney for the plaintiff, and Stacy Gillingham, the defendant, whereby it was agreed that judgment should be entered for-the plaintiff, in an amicable action of scire facias, to revive the preceding judgment, as though a writ had been regularly issued, and returned llmade known.” An amicable action of scire facias, to revive the judgment, was accordingly entered on the docket to March term, 1824, No. 12, and judgment was entered for the plaintiff, for the sum of sixteen hundred dollars, with interest from the 27th of February, 1823;</p> <p>On the 1st of May, 1826, a scire facias quare executio non issued .on this judgment, to July term, 1826, which was returned nihil.</p> <p>To December term, 1826, mi alias scire fdcias was issued, which was also returned nihil.</p> <p>A. fieri facias, issued to March term, 182*7, and a venditioni exponas, to July term, 1827, by virtue of which the real.estate of the defendant was sold, and produced the sum of eight hundred and fifty dollars.</p> <p>' Other incumbrances existed on the real estate of the defendant, but none prior, in date, to 'the above.</p> <p>If the original judgment of Lesher has been duly revived, he is entitled to the whole of the fund in court, and the auditor is of opinion that the spirit of the act of assembly, and the common practice under it, which seems to have been countenanced by many decisions of the court, justify him in regarding an amicable agreement to revive a judgment, duly entered on the docket within five years, as a sufficient judgment of revival, as well against a Subsequent mortgagee, as against the defendant in the judgment, and reports that Jacob Lesher, the plaintiff,'is entitled to the money in court.</p> <p>To this report the following exceptions were filed:</p> <p>1. The auditor erred in reporting that an amicable agreement to revive a judgment, duly entered on the docket within five years, is-a sufficient judgment of revival, as well against a subsequent mortgagee, as against the defendant" in the judgment. .</p> <p>2. The auditor erred in reporting that Jacob Lesher is entitled to all the money in court, and should have reported that Isaac Wo?’rell and Nathan Harper are entitled to receive eight hundred and fifty -dollars, the amount for which the property mortgaged to them was sold.</p>

Motion, for a new trial on behalf of the defendants, in a suit brought by Levy against Cadet and Hippie, in which a verdict was rendered for the plaintiff. This suit was brought on the 20th of July, 1824, on a promissory note, dated the 26th of May, 1816, payable sixty days after date. .

<p>If a husband deserts his wife and ceases to perform his marital duties, the acquisitions of property made by the wife during such desertion are her separate estate, and she may dispose of them by will or otherwise.</p>

<p>IN ERROR.</p> <p>The defendant was inspector of salt provisions for the city and port of Philadelphia, and was charged in an indictment for misdemeanor, in various counts.</p> <p>The 1st count was, refusing to inspect and brand eighteen barrels of beef for Charles Pray, having been previously tendered his lawful fees of one dollar and forty-four cents. •</p> <p>2d. Same charge, without stating the amount tendered; but,generally, that a'tender of lawful fees was made."</p> <p>,3d. Refusing to brand, and tender alleged of one dollar and forty-four cents.</p> <p>4th. Same charge, stating the tender generally of lawful fees.</p> <p>5th. and 6th. Refusing to inspect and refusing to brand.</p> <p>7th. Refusing to brand- and inspect forty-two barrels, and three dollars and thirty-six cents tendered.</p> <p>8th. Same charge, and no amount tendered.</p> <p>9th. Same charge, without tender.</p> <p>10th. Refusing to brand forty-two barrels, and three dollars and thirty-six cents tendered.</p> <p>11th. Same charge, and no amount tendered.</p> <p>12th. Same charge, and no tender.</p> <p>13th. Was called on to brand, &c., forty-two barrels, and did so in part, but would not complete the examination, inspection, and branding. ■</p> <p>On the trial, Charles Pray, the. prosecutor, swore that in December, 1826, he sent for the defendant to come and inspect forty-two barrels of beef, he being a victualler, and the defendant the inspector. The defendant’s deputy came, with his assistant, and opened ten out of the forty-twó barrels:, their usual practice was to open one in ten. They said they were fully satisfied, and that all it wanted was the Philadelphia brand, -provided witness would pay them for it. They made out a bill of five dollars and twenty-five cents for twenty-four,barrels, to keep the matter within the forty shillings law. Witness told them he wanted the forty-two barrels done, and would pay for the whole directly. The deputy s'aid his instruction was to go no further, and they would give witness the forty shillings law; At that time they commenced branding the twenty-four barrels, and the defendant, Genther, came in, eighteen of the forty-two barrels being unbranded. The deputy said, Pray will not pay us this bill for the twenty-four barrels. Witness said he would pay if they would finish the job, and offered the money to Genther, six dollars in notes, to which he made no objection. He refused, and said unless witness paid the first bill he would go no further; and' they went away.- Two months ago witness sold the beef at a loss. He afterwards asked the defendant what was his fee: he-said eight cents a barrel. .Witness asked how much for forty-two barrels: he said three dollars and thirty-six cents. ‘ Witness tendered it in silver, and asked him to finish the job. . He said he would not until he paid the repacking and coopering on the first,- being five dollars and twenty-five cents. Witness told-him he had his remedy for that, and asked him what he would charge for the remainder: he said one dollar and forty-four cents. He tendered it, but he said he would not brand them unless he paid the first. Witness’s intention was all along to pay, and prosecute for the penalty. The bill he tendered was for repacking and coopering. On former occasions he had refused to pay such a charge. He agreed to enter into an amicable action, to have the point determined by the-Supreme Court. He refused, and said he would give witness the forty shillings law.</p> <p>, The defendant’s witnesses did not contradict the material facts sworn to. One of them stated that Pray asked the defendant., if he would do the work, and he said if he would pay that bill he would go on; otherwise not. Pray said go and do the work and then I will pay you. - ' -</p> <p>His Honour charged the jury, that the defendant had taken three grounds of defence; namely, that the subject matter was-not indictable; that the defendant was entitled to the fees demanded; and, that he was not bound to perform his duties without tender of the fees.</p> <p>•The first ground entirely fails. The second was the main point; but it would be unnecessary to express- an opinion on it here, as the defendant had not a right to insist on payment of fees before they were earned: certainly not to split up one job into several, with a view to create separate demands. On this ground the case is clearly against him. But the defendant was not entitled to the fees charged.</p> <p>The jury found a verdict of guilty, and the defendant moved for a new trial.</p>

Replevin by Josiah Brown and others, against Joseph Sims and John M‘Masters, for twenty-six hogsheads of tobacco. The defendant iSims, avowed, and the defendant M( Masters, made cognisance of the taking, as a distress for rent of certain warehouses and stores in the city of Philadelphia, due by one Joseph Lea, the same being found on the.premises.

<p>Summons before a justice for damages not exceeding one 'hundred dollars, in holding and detaining a horse and selling him contrary, to law. On appeal, the plaintiff declared in assumpsit for money had and received. Held, to be regular.</p>

IN ERROR. Error to the Court of Common Pleas-of Philadelphia county, where judgment was rendered upon a verdict in favour of the defendant below, upon an issue of devisavit vel won,'directed by the Register’s Court, to try whether a paper writing, purporting to be the last will of Isaiah Ottinger, deceased, was his last will, and testament. The verdict was found in favour of the will.

<p>APPEAL.</p> <p>Appeal from the decree of the Orphans’ Court of the county, of Philadelphia. . .</p>

<p>IN ERROR.</p> <p>This was an action of trespass, vi et armis; wherein John Sharpless, the plaintiff below, who was defendant in error, declared against the defendants below, for breaking and entering his close, and taking and carrying away, and converting to their own use, one set of chair harness, of the value of thirty dollars, one blind halter, of the value of three dollars, and one pair of lines, of the value of two dollars, altogether of the value of thirty-five dollars, of the goods and chattels of the said plaintiff, &c. To this declaration, the defendants pleaded not guilty.</p> <p>On the trial of the cause, the plaintiff proved the taking and selling of the goods laid in the declaration by Benjamin Smith, one of the defendants, in obedience to the commands and directions of Nathaniel Brooke, the other defendant. The defendants gave in evidence to the jury, the commission of Nathaniel Brooke, one of the defendants, as a.brigade inspector, of the first brigade of the third division, composed of the militia of the counties of Chester and Delaware, dated as of the 3d of August, 1821. They likewise gave in evidence the commission of John Smith, as colonel of the forty-ninth regiment of the militia, in the same brigade.</p> <p>The defendants then called the said Colonel John Smith, who being duly sworn, deposed as follows:—</p> <p>“The forty-ninth regiment is part in Chester and part in Delaware county; East Goshen township constitutes part of my regiment. At the election in the- year 1821, June 4th, I was chosen colonel of the 49th regiment. I had been major for seven years before, of the first battalion of the same regiment. Samuel Pennall, was elected lieutenant colonel, William Sill was elected major of the first battalion, and John Thompson, major of the second battalion. We were all notified by the brigade inspector with a written notice. It was some length of time before the commissions came out, and Lieutenant Colonel Pennall, and Major Sill declined acting. The brigade inspector then advertised a new election for the major of the first battalion. I was appointed to superintend the election, and did so; and ran in one Peter Paterson. After the election, I notified him, and he refused to serve. Then another election was advertised for a major of the first battalion: Doctor Hammer was elected. He declined serving, as he was an officer in a rifle corps, and surgeon of our regiment. All this time I was inquiring for company officers to be appointed in the first battalion, and I could find no person to accept. Up to 1823, Goshen, and West Whiteland were vacant. In the spring of 1823, in my orders, I ordered a new election for company officers for all that were vacant in the battalion. There were no company officers elected in pursuance of that order. There were no company officers for those two companies for twelve or fifteen years, until these two years past. There were no company officers in these two townships in the year 1821, 1823, and 1823. The order to hold company elections in 1823, was prior to the spring musters.</p> <p>The defendants also called John Tompkins, who deposed as follows:—</p> <p>“ I was employed, in the years 1822 and 1823, to enrol the militia residing in East Goshen township, by Nathaniel Brooke, brigade inspector. I was employed by a written authority; — [here the enrolment was shown to the witness; — being a paper headed, ‘A list of persons liable to perform militia duty in-company of the 49th regiment of Pennsylvania militia, commanded by Colonel John Smith, commonly called East Goshen company. Return taken by John Tompkins’ — It contained the names of eighty-eight persons, and their respective ages; among which was the plaintiff’s name, with an affidavit annexed, that it ivas a correct list of all persons liable to perform militia duty within the bounds of the said company, &c. Sworn to by John Tompkins, on the 30th of August, 1822.] — I took this enrolment, and returned it to Nathaniel Brooke, the brigade inspector. This is my name signed to the affidavit.” The witness being cross-examined said, “No part of this paper is in my handwriting, except the signature. The paper is in Joseph fVetherby’s handwriting. My enrolment was copied off. I gave him a dollar to do it.” The counsel for the defendants thereupon offered to give the said enrolment, with the-affidavit of the said John Tompkins thereto annexed, in evidence. The plaintiff objected to the admission of the said enrolment in evidence, and the court decided that it was not legal testimony, and rejected it. To which opinion the defendants excepted.</p> <p>The defendants again called the said John Tompkins, and showed him another enrolment nearly of á similar tenor, made in September, 1823; when the witness deposed as follows:—</p> <p>“ This is my signature, at the foot of the affirmation to this paper.” The witness being cross-examined said, “No part of this paper is in my hand-writing. It was taken from an enrolment made by me, and copied by ’Squire Wetherby. It is a correct copy.” The defendants then offered the said enrolment in evidence, with the affidavit of Tompkins thereto annexed. The plaintiff objected to it; and the court decided that it was not legal testimony, and overruled it. The defendants excepted.</p> <p>The defendants then offered to give in evidence two warrants, under seal, dated the 5th of July, 1824, with the schedule of names thereto annexed, directed to Benjamin Smith as constable, and signed by Nathaniel Brooke as brigade inspector, ordering him to levy the sums set opposite the said names, among whom was the plaintiff’s, for two sums of two dollars each. The said warrants being the process under and by virtue of which the said property, mentioned in the declaration, was taken and sold by the said Benjamin Smith; and the said warrants being offered in connexion with the testimony, to prove that they were duly delivered to the said Benjamin Smith to be executed, — the plaintiff objected to the admission of the said warrants and schedules in evidence: and the court decided'that the said warrants and schedules were not legal testimony, and overruled the same, and the defendants excepted. ,</p>

The defendant, William Lesher, was indicted for murder, and tried at the Court of .Oyer and Terminer and general gaol delivery for the county of Philadelphia, at November sessions, 1S27, before Gibson, Chief Justice, and Tod, Justice. ■ Isaac W: Morris, being called as a juror, declared,-— <c That he. had conscientious scruples on the subject of capital punishment, and that he would not, because he conscientiously could not, consent or agree to a verdict of murder in the…

IN. ERROR. Peter Osborn, by his will dated 4th of June, 1813, bequeathed to his vyife the house in which he lived, with the garden, &e.; to be enjoyed by her during her natural life, and then to his son Joseph,defendant, in fee; certain furniture, as much fruit growing on the place as should be sufficient for her use, and firewo'od .was also given, together with a horse, &e., to be kept for her. “The will then says, I do further bequeath to my said wife, the hum of one…

<p>Assize of nuisance is ap existing remedy in Pennsylvania, not altered in essential-points, though in matters of form it ought to be adapted to modern' practice. . - .</p> <p>In such action, the recognitors are not to be summoned and sworn according to the act directing the mode of returning and selecting jurors.</p> <p>Nor are the proceedings irregular because there has been a defect in the plead- • mg, since the whole casé may be put before the recognitors at large, without regard to pleading, s ■</p> <p>It is not error that no judgment was entered below' quod capiatur assisa. Exceptions purely technical not regarded in .this action.</p>

<p>QUO WARRANTO.</p> <p>• This was a rule to show cause why an information, in nature of a quo warranto, should not be filed against the defendant, John Binns, to inquire by what authority he exercised. the office of an alderman of the city of Philadelphia.</p> <p>' It appeared that the defendant was duly commissioned an aider-man of the city of Philadelphia, on the 2d oí December, 1822, by Governor Heister, and had, since that time, continued to exercise the duties of the office. In the month of December, 1825, being then and since editor of the Democratic Press, a daily paper, published in this city, he received a letter from Henry Clay, secretary, of state, dated the T 3th of November, 1825, in which he stated, that “ his newspaper has been selected as one among the number designated for publishing the orders, resolutions, and laws, except such as are of a private nature, and public treaties, with the exception of Indian treaties, which may be approved and ratified during the first session .of the nineteenth congress.” In December, 1826, he received a similar letter, dated the 7th, authorizing him to publish, in the Democratic Press, the orders, &c., of the second session of the nineteenth congress. And in December, 1827, he received a third letter, dated the 7th, of a similar tenor as to the orders, &c., of the first session of the twentieth congress. - These ■letters directed, that in case of a sale or transfer of the newspaper, or of a change of its title# notice of the fact should be communicated ' to the department of state, in order to obviate any difficulty as to the person entitled to the compensation: and the conclusion of the last two letters was as follows: “ If you should omit to give this department the notice thus required, the amount due will be. paid to the person first applying for it, as the person best entitled to the same.” ■ ' ,-</p> <p>It was now contended, that the defendant’s printing, in' the Democratic Press, the laws, orders, &c., of congress, under this arrangement with, the secretary .of - state, was an appointment or employment incompatible with the office of alderman, under the consitution of Pennsylvania,■ Art. 2, sect. 8, and the incompatible act passed, by the legislature of Pennsylvania, on the 12th of February, 1802,</p>

APPEAL. Appeal by the defendant from the order of the Circuit' Court, directing a procedendo in this' cause, which had been removed from the District Court of Dauphin county to the Circuit Court of that county.

<p>An assignment in trust to pay, in the first place, preferred debts, and then all . other debts, absolute on the face of it, is null and void against creditors, if the grantor retain and use, and dispose of the property as his own;.and that though the creditor who levies on it has notice of the assignment before his-judgment;</p> <p>Such deed is not void because it contains no schedule, or limitation of time for-execution of the trust, or prefers some creditors, or because the grantor was in debt.</p> <p>Assignees entitled to personal property have sufficient possession to maintain trespass. ■ .</p>

<p>A prothonotary who held his office from 1810, to the passing of the'act of the 24th of March, 1818, is not chargeable to the commonwealth with a tax on the fees received by him after the latter date, for services rendered while he held his office. - •</p> <p>An act taxing a public officer, is not to be construed retrospectively, if its lan- ■ guage in that respect be doubtful.</p>

APPEAL. Appeal from the Circuit Court. Summons in debt in the Court of Common Pleas of Dauphin county, not exceeding sixteen hundred dollars, to August term, 1S26, and statement filed. The cause was removed, by the defendants, to the Circuit Court of the county of Dauphin, December term, 1826. On theTOth of September, 1827, the plaintiff entered judgment for want of an affidavit of defence, which the Circuit Court refused .to open, and the defendants appealed to this court.

<p>'A minor having an interest in land in common with adults, A. takes a deed from the latter, and agrees to hold a part of the purchase money in his hands for the use of the minor, it being understood the minor might or might not - .take the money when he came of age, and A. enters into .possession and enjoys the land, and sells part; four years' after coming of age the minor tenders a deed and demands the money: held, that an.action lies by the minor against A. on the promise.</p> <p>The minor need not -tender a -deed .containing a covenant of general warranty.</p> <p>.From what time interest shall be computed, in such case, is for the jury under .-the particular circumstances.</p>

<p>APPEAL.</p> <p>Appeal from the decision of the Circuit Court in the ease of a libel for divorce, by Barbara Light latq Barbara Merrett, by her next friend Joseph Orth, against Martin Light, filed in the Court of Common Pleas of Lebanon county.</p>

<p>The purchaser of property sold by order of the Orphans’ Court, takes it devested of the lien of a recognisance given to secure the distributive shares.</p>

<p>\ decree, by the Court of Common Pleas, awarding to a claimant money-arising from a sale of land by the sheriff, paid into that court, is final and conclusive, though the court may have acted on a mistaken principle of law, in awarding it to a holder of a.bond for the purchase money, as possessing a lien; and the District Court cannot afterwards, in a suit against such claimant by a judgment creditor to recover back the money, examine the propriety of the decree.</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Dauphin county, where a verdict and judgment were rendered for the defendant.</p>

<p>' Under the act of 1814, banks have a lien on stock, though levied on by a judgment creditor, for notes drawn before but tfalling.due after the levy, even though renewed.'</p> <p>On a sale of stock in bank on an execution, the record is the evidence of the vendee’s title.'</p> <p>If a debtor to a bank which has a lien on his stock owes less than the value of it, the bank nlay hold the whole till that debt is paid: they are not obliged to appropriate part and transfer the rest.</p> <p>Trover does not lie to recover shares of bank stock.</p>

<p>In debt on a bond at the suit of an assignee, it .is a good defence under the plea of payment, that the obligor before he knew of the assignment and before the bond became due, had become bound as security for the obligee in sums exceeding the amount of the bond, and had been obliged to pay them,</p>

Martin Qreider, jr., died intestate, leaving some property, but not sufficient to pay all his debts. Auditors were assigned to apportion the assets. They rejected the demands of Williams and Dimmy, who claimed to be first paid their debts in full, due to th.em as servants of. the intestate, under the act of assembly which gives'a priority of payment to “physic, funeral expenses, and servants’ wages.” The Orphans’ Court reversed the decision of the auditors.

CASE STATED. Amicable scire facias to revive a judgment, in which a case was stated in the nature of a special verdict.

<p>If, in a writ against two, and rule of reference taken out’by the plaintiff, it appears by the record, that one of the defendants appeared and acted for himself and as agent for the other, and an award was made against both, it will be held good on a writ of error. The party should, if the agent were unauthorized, have applied to the court below for relief.</p> <p>Writs of error may be waived by the delay of the party, his omission to apply for relief to the court below, and other circumstances.</p>

<p>If a verdict in dower, where the husband did not die seised, finds, among other things, the value of the land, this wilL be considered as surplusage, and not vitiate the rest.</p>

<p>IN ERROR.</p> <p>Writ of error to the District Court of York county. The plaintiffs in error, John Bixler and Anna Mary his wife, for the use of the said Anna, were plaintiffs below. The Writ was in debt not exceeding’two thousand, eight hundred dollars.</p> <p>A declaration was filed containing one count as upon a general indebitatiis assumpsit. “For that whereas, heretofore, to wit,, on the 1st April, 1826, the said Christian Kunkle and Christian Gingrich, were indebted to the said Anna Mary,' in the sum of two . thousand dollars, by the said Kunkle and Gingrick before that time had and received, to and for the use of the said Anna Mary, and to be paid by the said Kunkle and Gingrick to the said Anna Mary, when they should be thereunto afterwards requested, whereby action hath accrued to the plaintiffs to demand and have of the said Kunkle and Gingrick, executors as aforesaid, &c.” Piea nil debet, with leave, &c. ,</p> <p>Afterwards the parties agreed upon a case stated, to be considered as a special verdict found upon the declaration and pleadings.jiled.</p> <p>The case included the papers in full, and the material facts, the substance of which was as follows; — Baltzcr Kunkle, father of Anna Mary Bixler, died inlS12, leaving a will, and the defendants executors of it, directing them to sell his real and personal estate, and reserving five hundred pounds to be on interest for the use of the widow during her life, and giving her sundry smaller .legacies, directed an equal distribution of the .residue among all his children in these words: ££and at and immediately after the death óf my said wife, the said sum of five hundred pounds shall be paid and distributed among my- children, share and share alike.</p> <p>“ And after the hand money and the money of my personal property is all equally divided, it is my will, that the yearly payments of my said real estate, shall be divided as follows; — the first bond or payment coming due, my son Christian, and my-daughter Maria Elizabeth shall get; the second, Catharine, intermarried with Jacob Coleman, and my executors in the room of my daughter Anna Marys and the third bond my daughter Eve, intermarried with Christian Gingrick, and the heirs of my son Jacob, deceased, and so on in rotation until the whole of the said bonds is paid off. They, my said executors, are to draw my said daughter, Anna Mary’s, whole share of my said real and personal estate, and paying to heir for her use the interest of her said share, until they can purchase real property with the same for her use, as her husband, John Bixler, shall have no share of the same.”</p> <p>Previous to the year 1816, the ex.eeutors had sold the land, &c., under the will. On the 2nd of April, in that year, the executors paid to the plaintiffs one thousand five hundred and-fifty dollars, on the agreement and conditions appearing in the following deed.</p> <p>te Know all men by these presents, that whereas a certain Baltzer Kunkle, late of York county in the state of Pennsylvania, in and by his last will and testament, dated the seventeenth day of July, in the year of our Lord one thousand eight hundred and twelve, bequeathed a certain share or portion of his estate to his daughter, Anna Mary, to he retained by his executors until they should lay out the same, in land for her sole use,- and the said exetors, to wit, Christian Kunkle and, Christian Gingrick, being desirous to lay out the said share in lands, according to the directions of the said will, for the use of the said Anna Mary, therefore the said executors have appointed the said Anna Mary and her . husband, John Bixler, their agents, for the express purpose of purchasing land in the state of Virginia, for the use and purpose aforesaid, and paid into the hands of the said Anna Mary and John Bixler, their agents as aforesaid, the sum of fifteen hundred and fifty dollars, lawful money, for the sole and express purpose of laying the same out for.larid, for the said John Bixler and Anna Mary, his wife, who hereby acknowledge the receipt of the same, and acquit and for ever release the said Christian Kunkle and Christian Gingrick, their heirs, executors, and' administrators, of and from the same, and of and from all claims and demands on account of the same, and of any thing coming or to come to the said Anna Mary and all persons claiming under her, out of or on account of her share, legacy, or bequeathment, under her father’s last will. And further, the said John Bixler and Anna Mary his wife, promise and undertake, to lay out the said monies in lands for the use of the said Anna Mary, as soon as may be, not delaying longer than three months from the date hereof, and the title of the'land purchased with the said money, shall be taken to and in the name of the said Anna Mary'alone, and for her sole use to her and her heirs for ever, in the way and manner directed in and by the said last will; and, on failure of the money being laid out as aforesaid, for the space of three months from this date, then the said John Bixler promises and covenants to repay the whole of the said sum of money to the said Christian Kunkle and Christian Gingrick, without further .delay. And the said Anna Mary and John Bixler, in consideration of the premises, grant, bargain, and sell, to the said Christian, Kunkle and Christian Gingrick, and to their heirs, administrators, and assigns, all their, and each of their right, title, interest, claim, and demand whatever, under the will of the said Christian, Kunkle, deceased, to hold the same and any part thereof, free, clear, and released, and for ever discharged of and from all claims and d.emands whatsoever of them, the said John Bixler and Anna Mary his wife, and each and either of them, so that not any of them shall hereafter have, make, or allege any right, claims, or demands for, or on account of any thing mentioned, devised, or bequeathed, in thesaid will. ' In testimony whereof, the said John Bixler and Anna Mary his wife, have hereunto set their hands and seal this 2nd day of April, in the year of our Lord one thousand eight hundred and sixteen.</p> <p>(iSigned, sealed, and delivered John Bixler, (Seal.) in the presence of Anna Mary Bixler, (Seal.}</p> <p>il Jacob Heckert, jr.</p> <p> <e Daniel Heckert. </p> <p>“ We acknowledge that we have received, on the day of the foregoing instrument of writing, fifteen hundred and fifty dollars, for the purpose of laying out the same in land according to the provisions of-the foregoing instrument of writing.</p> <p>“ Witness, . “ John Bixler,</p> <p>££ Daniel Cauffman, Arina Mary Bixler.</p> <p>“John Danner,</p> <p>“ York county, S. S.</p> <p>££ Be it remembered, that the within named John Bixler and Anna Mary his wife, came before me, one of the justices of the peace in and "for the said county, and acknowledged the foregoing instrument of writing to be their act and deed. The said Anna Mary being of full age, and by me examined separate and apart from her husband, and the contents of the' foregoing instrument of writing being first made known to her, declared that she became a party thereto of her own free will and accord, and that she signed the same, and with her seal sealed it as her act and deed, without any coercion or compulsion of her said husband. In testimony whereof, the said justice has hereto set his hand and seal on the day of the date of the within instrument of writing.</p> <p> “ Daniel Heckert.” </p> <p>At the time of the execution of the above deed of release, &c., Bixler and wife resided in Virginia.</p> <p>On the Sth of April, 1816, there was purchased of John W. Bronaugh and wife, a tract of land of one hundred and fifty acres in Fairfax county, Virginia, for the consideration of three thousand three hundred dollars, and by deed of that date, the same was conveyed to Anna Mary Bixler, and her heirs for ever, and the said land and rents, issues and profits thereof, were held and enjoyed by her; and in that purchase the one thousand five hundred and fifty dollars were applied.</p> <p>The widow of the testator died in 1825. The share of Anna Mary Bixler under her father’s will, as appeared by the administration account of the executors, was, one thousand four hundred and forty-eight dollars and eight cents, over and above the one thousand five hundred and fifty dollars, paid as aforesaid, exclusive of interest; but including Anna Mary’s one sixth part of the five hundred pounds to be divided on the death of her mother. ,</p> <p>The following notice, &c.', were made part of the case:</p> <p>“ To Christian Gingrich and Christian KunMe, executors of B. Kunkle:</p> <p>“ You are hereby notified, that I am employed as the attorney for Anna Mary Bixler, formerly Anna Mary KunMe, to demand of you the performance of the trust created by the last will and testament of Baltzer KunMe, by purchasing land for Anna Mary Bixler with her legacy, according to the directions of the will of Baltzer KunMe. A part of the money now in your hands for her use has been a long time, due, and a part has become due since tho death of her mother. If you refuse to apply her money for her use as the will directs, a suit will be brought against you to collect the money itself.</p> <p>“ E. Chapin, Attorney at Law.”</p> <p>July 12th, 1826,. Mr. Chapin, agent or attorney for Mrs. Bix■ler of Virginia, called on Mr. Christian Kunkle to know whether he was willing to pay Mrs. Bixler the legacy due her yet before and since the death of her mother, in cash or in' land without further trouble. His .reply was — “ No. Any thing you will get, you will get by the law;” and, “ push away.”</p> <p>.The same evening he called on Mr. Christian Gingrich, stated to him his businéss, and read him a copy of this paper. Mr. Gingrich replied that he had nothing to do with Mrs. Bixler, that they had paid her off.</p> <p>It was admitted, that on the first day of April, A. D. 1819, demand was made by the son of the plaintiff, with an order from Anna Mary Bixler, tor a balance alleged to be due; also on the 1st day of April, 1820, and on the 15th of July, 1822, at which said several times defendants refused to pay any thing. .</p> <p>If, upon the above statement of facts, the court should be of opinion that the plaintiffs are entitled to recover the principal and. interest of the share of Arina Mary Bixler, then judgment to be entered for the amount of the same in their favour. If the court should be of opinion that the plaintiffs are entitled to recover the interest, then judgment to be entered for the amount of the intei’est. If the plaintiffs are not entitled to recover, then'judgment to be entered •for the defendants.</p> <p>' The suit was brought to recover the aforesaid sum of one thousand four hundred and forty-eight dollars and eight cents, with the interest thereon; that being the difference between the amount of Anna Mary's full share, and the sum paid' by the executors at the time of the release. - , ,</p> <p>The court below gave judgment for the plaintiffs for the amount of the interest.</p> <p>Opinion of Judge Bradford. — This was an action of assumpsit for two thousand dollars, for money had and received by the defendants to the use of the plaintiffs. The facts are to be taken as in the ease stated in the nature of a special verdict. On this verdict several questions have been raised for the consideration of the court. The plaintiffs found their claim on the will of Baltzer Kunkle, deceased. That part which is most material, is as follows: — “After the hand money and the money of my personal property is all equally divided, it is my will, that the yearly payments of my said yearly estate, shall be divided as follows — The first bond or payment coming due, my son Christian and my daughter Maria Elizabeth shall get; .the second, Catharine, intermarried with Jacob Coleman, and my executors in the room of my daughter Anna Mary; and the third bond, my- daughter Eve, intermarried with Christian Gingrich, and the heirs of bis son Jacob, deceased,- and so on in rotation, until the whole of the money'of the said bonds is paid off: they, my said executors, are to draw my said daughter, Anna Mary’s whole share, until they can purchase real property with the same for her use, as her husband,' John Bixler, shall have no share of the same.”</p> <p>The plaintiff seeks to compel the entire execution of .the trust,created by the clauses of the will, contending, that thedefendants having, neglected and refused to invest the balance of monies in their hands, in land, for her benefit, she is entitled in this action to recover the principal and interest, in her capacity of cestui que trust. Having no court of chancery, we are urged to extend adequate relief to the plaintiff in this form of action. •</p> <p>If it conclusively appeared that there was no other resort for the plaintiff, and that if this action was not sustainable, she would be without remedy, I would endeavour to reach the justice of the case by its adoption. Small violences done to the common law form of action, would be of trifling import, if the end would be the substantial justice of the case.</p> <p>I have examined the Pennsylvania decisions having any bearing on this subject, and the result is unfavourable to the plaintiff on this point. In chancery, the obvious course of proceeding would be, for the plaintiff tó file a bill, praying that the defendants should be compelled to execute the trust, agreeable to the will,, and to account for the fund received. This would afford full and complete relief to the plaintiff on all parts of the case. The mode of proceeding here should be closely assimilated to the bill in chancery. This might be done by a declaration, setting out the will of Baltzer IJunhle, deceased, the amount of monies which have come to the executors’ hands, which ought to have been invested in land for the plaintiff’s use, the omission and refusal to effect the investment, and-the damage done the plaintiff thereby. This-would have formed a record,-bringing the real case before the court..- On a verdict being found -for the plaintiff, conditioned to be void on complying with-the provisions of the will within a reasonable specified time, an appropriate decree might be rendered. If this would have been the correct exclusive course of proceeding, to compel the execution of the trust, the form adopted, so far as relates to the principal fund, is defective. . ’ --</p> <p>In Pennsylvania, courts hold themselves bound to administer equity fin all cases where the forms of law do not restrain them. 8 Serg. & Rawle, 115. In Jordan v. Cooper, 3 Serg. & Rawle, 578, 587, the Chief Justice says, “ We- have no court of equity. What then is to be done? We may do as is done i-n other cases where the forms of the common law are inadequate to the occasion: we may form a declaration suited to the circumstances of the case. I sec no certain mode of doing equity to both parties, but by issuing a writ in the usual forrq, and permitting the declaration to partake so much of the nature of a bill in equity, as to set forth the truth of the case. To this the defendant may plead any thing which in law or equity will serve him; and thus, the parties may go to trial on the merits of the case.” Ib. 580. Justice Gibson coincides, and says ‘the plaintiff, addressing himself to the equitable powers of the court, ought to disclose such a case as will entitle him to equitable, relief; but if he sets out such a case as will entitle him to recover at law, he ought to prove such a case as will entitle him to recover at law. The facts, as they exist, ought,-in all cases where it is practicable, to be set forth.’ Ib. 581. . ;</p> <p>. Applying these principles to the declaration in this ease, can we say that it contains any thing but the general requisites of a count for money had and received? Has the plaintiff disclosed such a case as entitles her to equitable relief; or has she only set out such a case as will entitle her to recover at law? If the latter, then we have seen she is to be confined to what the law permits. The declaration demands two .thousand dollars in assumpsit; ■ but- the will directs that the principal fund shall not be paid to the plaintiff, but be applied to the purchase of land for her use. The money in the hands of the .executors is not to be paid to the plaintiff': she cannot have it in that form: it would bé a breach- of trust to pay it to her. There is no express contract proved; and the law will not imply an assumpsit, which would be' a breach of trust. The plaintiff is not entitled to take the fund out of the hands of the executors': the will gives them the custody of it, and directs' the appropriation of it. But until it is appropriated, the plaintiff is entitled to the interest.</p> <p>2. The release, executed by Bixler and wife to the defendants, of the date of the 3d of April, 1816, is set up in bar of the plaintiffs’ claim, both as relates to the principal and -interest of the fund in the executor’s hands.</p> <p>This release, having been made by cestui que trust to the trustee, will be operative for nothing more than-what has been actually paid. Executors cannot be allowed to purchase in the trust fund for their benefit. Trustees must be kept within the line of their duty. A court of equity watches the conduct of a trustee with jealousy; and if he compounds debts or mortgages, or purchases them, in at a discount, he shall not be* suffered to turn the speculation to advantage. 1 Johns. Ch. Rep. The precise amount of the fund, at the time the release was executed, and what more was to be. expected afterwards, was within the knowledge of the trustees; “And they cannot be allowed to use the information they obtain as-trustees, to purchase in1 the trust fund for themselves.” 3 Atk. 37. Courts will not construe a release as vesting any beneficial interest in the trustees. 1 Serg. & Rawle, 279, 280. 1 Vez. 9. 4 Vez. 129. 3 Fonb Eq. 189.</p> <p>This release contains an express “grant, bargain, and sale,” to the executors, of all the plaintiff’s right, title, claim, and demand whatever, under the will of the said Christian Kunkle, deceased, evidencing a direct purchase of the trust.fund for their benefit.</p> <p>The principle which governed the court in Say’s Executors v. Barnes, 4 Serg. & Rawle, 112, is applicable to this case. There it was held, that a receipt in full, given by a ward, when of age, to his guardian, was not conclusive, and did not stand in the way of a new settlement, although there was no concealment, fraud, or circumvention. The guardian was the trustee of the ward’s funds, which he was bound to account for to the cestui que trust, the ward. £iIf he received less than he might, the guardian paid him no consideration for the loss.” Here the trustees are in possession of a fund devised to a feme covert, and it is against equity for the defendants to retain money which came to their hands in their trust capacity, and for which they have paid no consideration. There is no evidence of any concealment but what arises from the nature and face of the transaction. Nor does it appear, on the contrary, that every thing relating to her father’s will and estate was exhibited to the plaintiff’s view. This is not the release of a debt due by the defendants to the plaintiffs, but a transfer of her father’s bounty to trustees, who had the possession of iij without consideration, to a considerable amount. A great advantage has been ¿taken of the plaintiff by the executors, and by the very persons who were bound to inform her of her rights. 1 Yecites, 312, notes.</p> <p>3. Although on the pleadings in this case the plaintiff cannot have judgment for the principal fund, I think she may recover the interest. Whatever sum remains in the hands of the executors, which they have received in trust for the plaintiff, under the terms of the will, they should pay the interest of. The interest is to be ascertained to the time of bringing the action. Executors and.other trustees are chargeable with interest, if they háve made use of the money themselves, or have been negligent, either in not paying over the money, or in not loaning or investing it, .so as to render, it productive. The time for which interest is to be charged in case of negligence, varies according to circumstances. Six months from the time the money was received is a reasonable period in most cases from which to charge interest against a trustee. 1 Johns. Ch. Eep. 508.</p> <p>The interest here is payable for the time the money came to the executors hands. The words of the will are, ££ paying to her, for her use, the interest of her said share, until they can purchase real property with the same for her use.” Evincing the intention of the testator, that the interest of the money should commence from the time it was received by them; if not immediately able to appropriate it in land, to pay interest to the cestui que trust. The will gives this legacy to the wife in the shape of interest, for her usei it is not on a footing of a charge of interest on the executors, for their negligence in not putting the fund to interest,.or for using it themselves. In such cases interest would be chargeable from a reasonable period after receipt, which the executors would have to invest the money in land.</p> <p>It being the opinion of the court that the interest only is recoverable in this action, we, also, think that the suit for it has been correctly brought in the name of Bixler and wife. The writ and declaration is, u Bixler and wife in right of said wife and for the use of said wife.” The money, when recovered, will be under the control of the court, who will see that it comes to the hands of the wife.- If the husband should receive it he will be held a trustee for the use of the wife, and she may dispose of it as she pleases,. 6 Serg. & Rawle, 467. The wife has power to release this accruing interest, devised to her, separate use, and might have appointed her husband to receive it if she pleased. 1 Pet. 116. 1 Serg. & Rawle, 275. She may, therefore, join him in a suit, for this claim, thus complying with the. law, by putting a responsible person on the record for costs. The action, according to the case cited in 6 Serg. & Rawle, 466, could be brought in the name of the husband and wife, and the husband could not release or discontinue the action. It might, as in the case of an irregular assignment of a chose in action, have been entered for the use of the person having the beneficial interest, the wife. 10 Serg. & Rawle, 210. flad this action been brought by prochein ami of the wife, the last book cited shows, that it would have been bad on a plea in abatement. It was therefore correct to join the husband and wife as has been done in this case.</p> <p>We give judgment for the plaintiff for the interest which occurred on these sums, which ought to have been invested in land, for the benefit of the plaintiff, down to the time of the commencement of this action, which, according to the documents submitted to the court, amounts to four hundred and seventy-five dollars and ninety-five cents.</p> <p>Each party took á writ of error.</p>

<p>An attorney wlio Iras a contract with a party for a certain sum as a fee in case of recovery, is a competent witness for him if it does not appear that the contract is under seal or capable of being enforced.</p> <p>The plaintiff’s attorney having in his hands a sum recovered by suit ón a bond, the plaintiff and H., by writing under seal, certified, that they had settled all matters in variance respecting the bond left in the hands of the attorney for collection, and had agreed to divide the sum equally: the plaintiff’s attorney, notwithstanding this agreement, is not bound to pay half the money to H.</p>

<p>IN ERROR.</p> <p>The plaintiff in error was plaintiff below.</p>

<p>Where the defendant complains of irregularity in the issuing of a fieri facias after a year and a day without a scire facias, on which his lands were sold, he should complain at the earliest opportunity: if he lies by, he is considered as waiving the objection by his laches.</p> <p>The complaint should, in the first instance, be made to the Court of Common Pleas, if the process issued there.</p>

in error. -Writ of error to the District Court of York county. This, in the court below,, wás a case stated, in nature of a special verdict, on which judgment was to be rendered for the plaintiff or defendant according to the opinion of the court. The intestate, John Koons, at the time of his decease, was indebted to the plaintiff in thirty dollars, for physic furnished and attendance rendered him by the plaintiff as a physician, previously to his last illness.

<p>Arpeal from the Circuit Court of Lebanon county, held before the Chief Justice. *The suit was brought by Sawyer M'Fadden against .jRobert Geddis, late executor of an instrument purporting to be the last will and testament of John Sawyer, deceased, and a verdict was rendered for the plaintiff.</p>

<p>The Supreme Court, when sitting out of the county of Philadelphia, cannot entertain a writ of error for error in fact.</p>

Appeal by the plaintiff from the judgment of the Circuit Court for Mifflin county. This case was originally an action of debt brought by Thomas Beale, for the use of E. PV. Doyle, against John Patterson and William C. Kelly, trading under the firm of Patterson and Kelly.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Mifflin county, in a suit commenced in July, 1825, before a justice, on .book account, brought by James Sherard against William Ingram and Robert Ingram, executors of Robert Mitchell, deceased; pleas non assumpserunt, and the statute of limitations.</p> <p>The plaintiff gave in evidence his book of original entries, containing thé following items:—</p> <p>Jlugust, 1809. 1 Coffeepot, - $1,12%</p> <p>May 17th, 1812. '2-Barrels of shad, - $28,00</p> <p>Do. do. 3 Pounds of coffee, - ■ - $1,00</p> <p>November 7th, 1819. 7 Half gallons of whis- ' key, - • - • - ’ - 50</p> <p>$36,62?</p> <p>*ftagnst 16th, 1804. Half a yard of calico, - . . 40</p> <p>$31,02§</p> <p>Cr. Nov. 17th, 1812, by cash, - - $20,00</p> <p>The court below instructed the jury,—</p> <p>That where there have been mutual dealings, and some of- the items are within the six years, they will draw after them the preceding items that are beyond six years. '</p> <p>Here there is a charge within six years. There is no credit within six years: there is -a credit beyond the six years, and the question is, whether this item takes the case out of the statute. The court thinks it does, and if the jury are satisfied with the proof, they will give a verdict for the balance of the account with interest, from a reasonable time after the dealings ceased.</p> <p>To which opinion of the court, an exception was taken by the ' defendants.</p>

<p>The "United States, when plaintiffs in court,are entitled to appeal from an award . of arbitrators with'out áffidavit or security, and without paying costs.</p>

<p>Where land for which a warrant has issued, has been sold for taxes, and the warrant holder makes no. claim for twenty-one years, and does not pay nor offer to pay the taxes accruing during that time, it may be left to the jury to presume an ouster of him or abandonment by him. .</p> <p>Lapse of time strengthens a title founded on a sale for taxes. ■</p> <p>Where a shifted warrant is surveyed, but the survey not returned nor efforts . shown to have it returned, a resurvey made for an adverse claimant under a sale for taxes, accrues to' his benefit and not to the benefit of the warrant holder. '</p>

<p>Á judgment against a constable for official misconduct, is conclusive against his sureties as to his misconduct and the extent of damage sustained by tne plaintiff; but they may take advantage of any defence personal to themselves. .</p> <p>It seems the law is the same as to sheriffs and their sureties, but query.</p>

<p>If a husband, by deed of separation without trustees, relinquish to his wife all his right in her land, reserving the payment of an annual sum, the land is not liable to the execution of a creditor of the husband, who obtains, judgment after the husband and wife have been notoriously separated for nine years.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of Tioga county, in an ejectment for four hundred and forty acres of land; brought by John Ives and others, defendants in err.or and plaintiffs below, against William Martin and others, plaintiffs in error and defendants below. The cause was arbitrated under the act of the 20th of March, 1810, at the instance of the defendants, and an award made, that the plaintiff had no cause of-action. The plaintiffs appealed.

ÜS ERROR. Writ of error .to Tioga county. The plaintiff sued the defendant before a justice of the peace, who gave judgment on the award of referees, for twenty-mine dollars and eighty-six cents in favour of the defendant, and the plaintiff appealed. In the Court of Common Pleas, the cause was submitted to arbitrators, who awarded that the plaintiff had no cause of action.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Pleas of Mifflin county. It was originally a suit brought before a justice of the peace on á sheriff’s official bond, and was removed into the Court of Common Pleas by certiorari', which, by consent, was changed into an appeal, and the following case stated for the opinion of the court:— The execution of the bond by the defendant, was admitted, and that Thomas Beale was duly elected, commissioned, and was the sheriff of Mifflin county as stated in the declaration. It was also admitted that the execution in the declaration mentioned, was duly issued and put into the hands of the sheriff. That he made the levy therein stated, and did not, sell on the venditioni exponas. That all the money has been paid to the plaintiff except the forty dollars and twenty-five cents, which still remains due and unpaid. The question for the opinion of the court is, whether the plaintiff can, undér the facts in this suit, and on the pleadings in this cause, recover the same from the defendant. If the court shall be of'opinion that the plaintiff can so recover, then judgment for the plaintiff for the sum found due by the justice, and interest. If the court shall be of a contrary opinion, then judgment for the defendant.</p> <p>The court was of opinion that the justice had no jurisdiction or legal power to institute a suit on the- sheriff’s bond.</p>

<p>A ward, cannot, on coming of age, sustain asmmfisit against his guardian in the Court of Common Pleas for the work and labour done by him for the guardian during his minority. . '</p> <p>Tlie. Orphans’ Court is the proper tribunal to settle accounts between guardian and ward. _ •</p> <p>_ In what cases the guardian is bound to compensate the minor for his services.</p>

<p>The person who first sues on an official bond of a sheriff, is entitled to have his judgment first paid, ' ■</p>

<p>A permission to another to erect a dam for a temporary purpose; is terminated by the decay of the dám, and will not authorize-the erection of another dam • in it's place.</p> <p>One who sees another erecting a dam, by which the water will be flowed back to bis injury, is not bound to give him notice, if the latter is acquainted with his rights, or has the means of becoming so, and obstinately proceeds in the ■ assertion of them.</p> <p>Where notice is necessary, it is sufficient if the párty employs efforts to give notice, and succeeds in doing so to the contractor for the defendant, though it does not appear the notice was actually conveyed to the defendant,</p>

IN ERROR. Writ of error to Columbia county. The plaintiff declared in assumpsit for money had and received, and the defendant pleaded non assumpsit and payment; whereupon -the jury found for the defendant, and certified under the act of assembly that the plaintiff was overpaid to the value of eight dollars; Notice of set-off had not been given: and the error assigned here was that the jury could not so certify hut on set-off pleaded, or defalcation givén in evL dence under…

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Columbia county. The action was brought before a justice of.the peace from whose judgment the plaintiff appealed; and there was an award of one hundred and fifteen dollars in favour of the defendant, from which neither party appealed. It was argued here that the jurisdiction of the appellate court is necessarily the same as that of the inferior; and, consequently, that there could be no judgment in favour of either party for more than one hundred dollars.</p>

<p>Viewers who lay out a road, if required by act of assembly to be freeholders!, . ‘ must be taken to have been so; unless the contrary appeal's.</p> <p>It is a sufficient adjudication that the road is a public one, if the viewers say they lay out the road for public use.</p> <p>If the draft shows that the road passes through the lot of an individual, it need not state the precise distance it passes through it.</p> <p>No notice need be given to the owners of land of the time -when the-viewers - will meet to lay out a road passing through it, but the viewers ought, in pass» ing through improved ground,- to call the person living on the farm.</p>

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

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Mifflin county.,</p>

<p>IN ERROR.</p> <p>Writ of error to the Court of Common ¡Pleas of Susquehanna county. ‘ . '</p> <p>At the term of May, A. D. 1826, Joseph Watrous, the plaintiff below and defendant in error, brought this ejectment in the court below against Obadiah Green and Zalmon Gregory, two of the plaintiffs in error and defendants below, and declared for “a'certain tract of land, situate in the township of Bridgewater, hi Susquehanna county, containing four hundred and twelve acres and eighty perches, or thereabouts, adjoining lands now in the possession of Isaac Hubbard, &c:, the right of possession, or title to which, the said Joseph Watrous saith is in him, and not in the said Obadiah and Zalmon,” &e.</p> <p>And David Green, the other defendant below, and plaintiff in error, at the December term, applied by,affidavit, and the court' ordered that he should be admitted to.defend the possession of the premises described in the declaration, as a co.-defendant with the said Obadiah Green and Zalmon Gregory. -</p> <p>On the trial, the plaintiff offered in evidence the record of a judgment for one thousand eight hundred and ei,ghty-one dollars, besides . costs of suit, rendered by the' said court in favour of JohnB. Wallace, to the use of Thomas B. Overton, against the said Obadiah Green, entered on the records of sa.id court' as No. 39, JLugust term, ISIS, on a writ of scire facias sur mortgage, .in which- suit one Charles Catlin was the plaintiff’s attorney: to which evidence the defendants objected, but the court overruled the objection? and admitted the sam,e to be'read, and the defendants excepted.</p> <p>The-plaintiff further gave in evidence an alias levari facias^ issued from the said'court, on the said judgment oh the 28lh day of December, 1818, returnable to February ' term, with a return made thereto by Samuel Gregory, sheriff of said county : by which re-, turn it appeared, that the said sheriff, by virtue of that writ,, had sold the premises therein described to the said Charles Catlin, the attorney of the said pláintiffj for the consideration of eight hundred and ten dollars. A deed,dated May 1st, 1S20, from thesaid sheriff to the said Charles Catlin, made in pursuance of the said sale: a deed, dated August 2d, 1824, from the said Charles Catlin to the Said plaintiff and one David Francis, for the premises in controversy. Also, an assignment, dated June 30th, 1821, on the back of the said sheriff’s deed, by the said Charles Catlin to one Thomas Overton, of all his interest in the premises therein described, for a valuable consideration. A deed, dated May 6th, 1824? from Thomas Overton to the said plaintiff and David Francis: and, ■a deed, dated February 4th, 1826, from the said David Francis to the said Joseph Watroús, of all his interest in the lands in controversy. ( ’</p> <p>' The plaintiff then gave in evidence the "return of Samuel Gregory, sheriff of. said county, to .the summons issued in this case in. favour of the plaintiff, against the said Obadiah Green and Zalmon Gregory, and theabove-mentjoned affidavit oí David Green, wherein he deposed, that the said Zalmon Gregory occupied the premises as his tenant; and, a mortgagé, dated March 22d, 1810, of the "premises in controversy, from the said Obadiah Green to the said John B. Wallace, on which the above-mentioned writ of scire facias was issued.</p> <p>The plaintiff then called Jonah Brewster as a witness, who testified as follows, to wit: — About three years ago, David Green told me his father, Obadiah Green, had told him he might have one hundred acres off the-south-east1.corner of fhe-tráct, and make the most of it, and if there was any thing to pay for it he must pay if: that he had a mind to take out a warrant for it, and that he could then hold it. Gregory lived a few months on David’s one hundred acres — he has moved dff the land. David Green lives there:, lately I have heard him say, he claimed under a sheriff’s deed: he was there in 1820: he commenced on the one hundred acres long áfter 1811. '</p> <p>■ The defendants gave in evidence a record'of a judgment in, the said court, entered as No. 67, of September term, 1822, in favour of one Isaac Gfoodsell, against the- said Obadiah Green and John Darrów, on a transcript, filed; June 11th? 1822; an assignment of the said judgment to the said Joseph Watrous, filed April 29th, 1824; a writ of fierifacias issued thereon March 9tli, 1824; a levy, by virtue thereof, on the premises in controversy, as the estate of Obadiah Oreen, apd an inquisition and condemnation of the said lands; also, the record of a judgment entered as No. 68, of September term, 1822, in favour of the said'Nnac Goodsell against the said Obadiah Green and John Darrow, also assigned to the said Joseph Watrous, on which judgment the same proceedings were had with the last-mentioned judgment, and the record of another judgment of said court, entered as No. 11, of Muy term, 1S24, in favour of the-said Isaac Goodsell against the said Obadiah Green; a writ of fieri facias issued thereon April 9th, 1824, &e., and an assignment of the said judgment, from the said Isaac Goodsell to the said Joseph Watrous, dated February, 28th, 1S24, filed April29th, 1824; a venditioni exponas issued thereon, to which the sheriff returned at September term, 1826, that he had sold the land, it hcing the premises in controversy, to David Green for the sum of five hundred dollars; also, writs of venditioni expónas on the said two judgments above-mentioned ás No. 67 and 68, of September term, 1822, and receipts of William Jessup, Esq. the attorney of the said Joseph Watrous, for the amount of the debt, interest, and costs of the said three several judgments, together with the receipt of the said .Obadiah Green for the residue of the purchase m'oney: a deed from Samuel Gregory, sheriff of said county, to the said David Green, dated September 4th, 1823, for the premises in con-v troversy, made in pursuance of the last mentioned sale.</p> <p>The defendants then' called Philander Stephens, Esq., the late sheriff of said county, who testified, that the said Joseph'Watrous, or his attorney, placed the said writs of fieri facias in his hands: that the said Joseph Watrous was present when the inquisition was held on said lands — that he did not direct him not to proceed— that it must .have been by instructions of the. said Joseph Walrous, or his attorney, that he levied on this land. That he should.supv pose from his .intercourse with the plaintiff, that he must have kpown that he, the said sheriff, levied his execution on the land as the property of the said Obadiah Green.</p> <p>Also, Samuel Gregory, the present sheriff of said county,’who deposed as follows, to "wit: — -I don’t know who placed the exe-.cution in. my hands, whether Mr. Jessup or the p'rothonotary — ■ Watrous spoke to'me about the sale — asked when it would take place: after the sale, he said he wanted his money, if he was going to have it. I paid the money to Mr. Jessup. Watrous bid on the land nearly as high as David Green. On his cross-examination, he testified, that Joseph Watrous, aP'the time of the sale, gave notice to all that were present., that he claimed the title to the land, and that he only sold the possession, or right and titie of Obadiah Green, and that he had an ejectmentpending for the title, and that he should go on with it. I gave notice at the time, that I only sold. Green’s interest in it.</p> <p>And Joshua W. Raynsford. Esq. being also called as a witness for the defendants, testified, that three years ago last Jlpril, he was one of the inquest held on Green’s place; he thought Joseph Watrous'was' present and had ah interest in having the property condemned, and that David Green appeared on behalf of his father, not to have it eondemned.</p> <p>The said plaintiff then called Joseph W. Gurnsey, who testified, that he was present at the sheriff’s sale when David Green purchased, Joseph Watr.ous gave notice, that he was sole owner of' the land, and that.it was Obadiah Green’s right and title only which was to be sold, and that there was an- ejectment pending — thinks it was the,title of possession only he was selling — David Green was in the,room when the notice was given. When we went out on the stoop Watrous repeated it again, and repeated it two or three .times during the sale. ■ '</p> <p>'. The plaintiff further gave in evidence an article of agreement, dated September 2d, 1818, between Thomas B. Overton and Obadiah Green, whereby the said Thomas B. Overton covenanted to sell and convey to the. said Obadiah Green, one hundred acres of land, parcel of the premises in controversy,.at an appraisement, to be made by persons therein named, and on the conditions therein specified: a report of the said appraisers, dated September 6th, 1820, wherein they find the said land worth six hundred and twenty-five dollars, and deduct one hundred and seventy-five dollars for certain improvements, according to the conditions of the said article of agreement, leaving four hundred and fifty doflars to be paid by the said Obadiah Green to the said- Thomas B. Overton, for the said one hundred acres of land. ■</p> <p>■ The'defendants called witnesses, who testified as follows, to wit: Samuel Gregory. — After, the property was.sold on Overton’s exe-f cution, and at the time of the sale, Catlin said it was for Overton he purchased; afterwards, he called on me and said, he.had dealings with Overton, and would take the deed in his own name, and E struck out. Overton’s name and inserted his in-the return — Catlin was Overton’s attorney.</p> <p>Jonah Brewster. — After this contract, Overton instructed me, as his agent,, to carry the' contract into-effect, and to bid off the land’, and to exercise a sound .discretion,, and bid as high as fifteen or sixteen hundred dollars.. When I was going to Harrisburg, I'had a conversation with Catlin, and requested him to give-information to Mr. Overton, as he was calculating to go to Philadelphia. Catlin said he was Overton’s attorney, and could bid it off, and it would answer the same purpose as if I bade it off. Overton requested' me to go on and run out the land and appraise it,, and let Green have it when he was a mind to, if it did not injure the place too much.</p> <p>Benjamin T. Case. — The deed from the sheriff to Catlin is in my hand writing. Catlin told, me he bade off the property for Overton, but as Overton was owing ¡him, he concluded to take the deed in his own name, and when he settled with him, would convey the land'to him — that it was not intended to affect the agreement between Green and Overton.</p> <p>. The defendants then gave in evidence the petition of- Thomas Overton, administrator of the estate of Thomas B. Overton,• deceased, of Jipril 13th, 1835, to the Orphans’ Court of said county, for leave, to sell the land in- controversy, as the estate of the said ■Thomas B. Overton, with the record of the proceedings of the said court thereon.</p> <p>■ The defendants prayed the court to charge the jury, and the court charged the said jury as' follows:—</p> <p>1. That the plaintiff has no right to recover, he having shown no original title, as Zalmon Gregory was in possession, without showing he held under Green.</p> <p>“The courtis of opinion, that the plaintiffs might recover against those he showed were defendants in the original judgment, or held under them, but not against Zalmon Gregory, unless he held under the defendants in that judgment.”'</p> <p>3. That the plaintiff cannot recover if he has shown title in himself, inasmuch as the lands were sold on his execution; he attending the inquest for condemnation, and causing the land to be sold with his privity and consent, and receipting the execution by his attorney. • ,</p> <p>The court say, “The principle is correct as stated, but if execution was levied on the interest the defendant or defendants had in the land by possession-or contract, and notice given by the plaintiff at the day of sale, and also by the sheriff, that h.e did not sell the title which the plaintiff claimed, but only the defendant’s inte» rest, it would be otherwise.”</p> <p>3. That an agreement was made between Overton and OBadiah Green, that Green was to have one hundred acres, if Overton bid off the property, upon such terms, as men appointed- by them should decide; that as Charles Catlin, who made the purchase, was .attorney for Overton, he took it as trustee, and those who claimed under him, held the land in trust, and.subjee.t to the agreement for one hundred acres.</p> <p>“ The court assent to the correctness of the principle, that Catlin purchased the land in trust, and from the records, all who claim under him must have had notice of the trust, and the plaintiff cannot recover the one hundred acres of land designated by the persons appointed under the agreement, because no deed has been made agreeably to the report of Said men.”</p> <p>The defendants excepted to the charge.</p> <p>The jury gave their verdict for the plaintiff as follows: — “ That they find for the plaintiff the whole amount of the four hundred and twelve acre tract of land, deducting the one hundred acres described in the original agreement made with Thomas B. Overton agreeably to. the award oí Jonah Brewster, Benjamin T. Case¡ and George Cone.” And, thereupon, judgment was rendered for the plaintiff. ' ; .</p> <p>Errors ássigned:—</p> <p>1. Tfie court erred in admitting the record of the judgment in the case of .JoJm'B. Wallace, to the use of Thomas B. Overion against Obadiah Green, to be read in evidence to the jury without first showing, that Zalmon Gregory was in possession under the defendant-in that judgment..</p> <p>2. The court erred in their charge to the jury on the first point.</p> <p>3. The court erred in their charge to the jury on the second point. ■ ‘ , _• -</p> <p>4. The ver'dict is uncertain.</p>

<p>Where a mortgage is given to secure a debt, but the eight accompanying bonds ai'e for instalments of the debt, payable at various periods, five of which bonds the holder assigned to different persons at different' times, retaining three of the bon'ds himself, and the fund arising from the sale of the mortgaged premises, by execution against the mortgagor, falls short of the whole mortgage debt, the respective assignees and the mortgagee, are entitled to a pro rata dividend of the proceeds, according to-the amounts of their bonds by them held.</p>

<p>APPEAL.</p> <p>Appeal from the decision of Huston, J., denying a new trial, at' a Circuit Court, held for Jtllegheny county, Jlugust, 1828, in ejectment for land claimed by the plaintiff under a deed from Wil-t Ham Chess, father of-the plaintiff, and also father of the defendants. Incapacity in the grantor was objected: and fraud in obtaining the deed. The verdict was for the defendants. The plaintiff applied for a new trial on three grounds.' 1. Alleging that the judge permitted some of the defendants’ witnesses to testify their opinion as to.the sanity or insanity of the grantor, without obliging them to specify the facts upon which such opinion was founded'. 2, There having been a former trial of the same cause between the parties, Mr. Forward, one of the counsel of the defendants, was permitted on oath to produce his notes of the former trial, to show what Jacob Harger and Mrs. Chess, both since deceased, had then testified. 3. That the judge permitted Mr. Forward, in the same way, to give evidence of what was sworn, on the former trial by Jacob Hays, then a competent witness, but who had since become interested in the cause, by joining as surety with the defendants in a bond to the plaintiff, conditioned, in case the plaintiff recovers, to pay him for the coal-dug by the defendants on the land, he, Hays, being still in full life, and residing within the jurisdiction of the court.</p> <p>To introduce'the testimony of the deceased witnesses, Mr. Forward being sworn, stated .as follows: — “l was counsel for the defendants on the last trial — I took full notes Of. the trial — I took ido.wn the testimony of the witnesses in question. I believe the greater part is in the words of the witnesses. I believe I have the substance and nearly the words of the witnesses. The whole of it may not be in the very words. I don’t recollect the téstimony independent of the notes. I do not recollect any question put on, the cross-examination, nor whether there was a cross-examination. I believe I put down wjiat was stated by the witnesses in reply. I may have omitted to note what I supposed to be immaterial to the issue trying.” ’ ■</p>

<p>APPEAL..</p> <p>This was an appeal from the judgment of the Circuit Court of Allegheny county, and was argued by Burke and Selden, for the plaintiff in error, and Fetterman and Baldwin, contra.</p>

<p>On a mortgage given to secure the payment of a sum of money to three absent, persons, in different 'proportions expressed in the mortgage, two of whom had then paid up the sum. expressed, and the third had not, but did so by advances soon after the mortgage, if they proceed, to a judgment and sale of the property by execution, and-the proceeds are not sufficient to pay all, they are to be distributed according to the sums expressed in the mortgage,</p>

IN ERROR. ■Erroji to the Court of Common Pleas of Allegheny county. In the Court of Common Pleas of Allegheny county, at the suit of P. Cunningham, the defendant in error, against the plaintiffs in error, Geary and .Gray, a summons issued in debt, two thousand dollars, sur recognisance to prosecute a writ of error with effect. A statement was filed and the. qaiise arbitrated.

IN ERROR. In the Court of Common Pleas of Venango county, to whieh a-wr'it of error issued, it was agreed that the following statement be submitted to the court for their decision, to be considered… Held: that the plaintiff, (the widow,) was entitled to the third of the personal estate exclusive of the debts, and therefore gave judgment for the plaintiff according to the cafce stated, for two hundred and sixty-three dollars and fifty-six and a quarter cents.

<p>Yerdict in ejectment "for the .plaintiff one half of the survey, according to a draft signed by H. C,, deputy surveyor, and filed in this case; the land to be laid off according to quantity and quality, reserving to M; M. (the defendant,) as much of the improvement as practicable, with six cents damages, and six cents costs:” held bad.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Westmoreland county.</p> <p>Harris and Donaldson, the defendants in error, were plaintiffs below.</p> <p>This writ of error was taken for the purpose of setting aside an execution, issued at the instance of the defendants in error against the plaintiff in. error, returnable to May term, 1828. The writ of execution issued on the 20th of April, and the writ of error on the 25 th oí April, 1828.</p> <p>• The judgment against the plaintiff in error was entered by virtue of a power of attorney, and is not now the subject of controversy. It was entered as of August term, 1817. To Febniary term, ISIS, a writ of fieri facias issued on this judgment, and a levy was made on real estate, an inquisition held, and the property condemned. A writ of venditioni exponas was taken out to May term, ISIS, and on the 19th'of May, 181.8,' on motion and affidavit filed, the sale was suspended until the further order of the court.</p> <p>On the 3d of March, 1820, on motion of the plaintiff’s attorney, the order was discharged, and leave given the plaintiff to take out a new execution. “ The property mentioned in this writ having been sold on a, prior judgment, and the monies arising from the sale not.'reaching this.”</p> <p>A fieri facias was issued to May term, 1820, which was returned nulla bona.</p> <p>A testatum fieri facias to the sheriff of Allegheny county, returnable to August term, 1820,. was issued,' and returned nulla bona.</p> <p>To February term, 1823, a fieri facias, post testatum fieri facias,vías issued. The' return on the docket is entered as follows: — . “Levy made on personal propertj", which was afterwards given up oh the levy being released by Mr ..Armstrong, one of the plaintiff’s attornies. So answers ' ■</p> <p>“John Nicholls, sheriff.”</p> <p>This writ is endorsed with “ mileage and levy, three dollars and twenty-four cents. Levy made on personal property, which was afterwards given up on the levy being released by Mr. Asmstrong, one of the plaintiff *s attornies. So answers '</p> <p>“John Nicholls, sheriff”</p> <p>This writ is also thus endorsed: — “ Monday, 25th of November, 1822, at nine of the clock in the morning, this-writ came to my hands, John Nicholls, sheriff. By virtue of the within fieri facias, I have levied on all the right, title, interest, and claim of, in, arid to a certain lot of hogs, containing two hundred, m'ofe or less, of James Duncan. '</p> <p>“George Singer, deputy sheriff.</p> <p>tcNovember 26th, 1S22.”</p> <p>In the hand-writing of the plaintiff’s attorney:-—</p> <p>“ I, as the attorney of the plaintiff,'did direct the sheriff to return the execution not to be executed before the return-day thereof. And I now authorize the same.</p> <p> “George Armstrong.- </p> <p>‘f 23d of February, 1824.”</p> <p>To August term, 1827, a writ of capias ad satisfaciendum was issued., to which the sheriff returned C. C. and committitur, and the defendant was subsequently discharged from' cqstody on habeas corpus. ■' ' '</p> <p>'"A testatum writ of execution was issued to the sheriff of Bradford county, returnable to May term, 1828:</p> <p>To reverse this writ of .execution, the present writ of error has •been issued out.</p> <p>The affidavit filed on the 19th of May, 1818, was as follows:—</p> <p>James Duncan, the defendant, being sworn, deposeth and saith, that at the court in Kittanning last fall, Mr. Armstrong asked this deponent to assign over to Harris and Donaldson a. receipt of Fhomas Blair, for-notes left in his possession for collection, on J. and S. LatsKaw, and guarantied . by Adam Johnston-to the amount of upwards of one thousand dollars. And the said Harris and Donaldson were to prosecute, or cause to be prosecuted, the said notes to. judgment and recovery. And when the money should be collected, it was to be applied to the payment of the above judgment. That suit had been brought on said notes in Armstrong ■county for the use of the said Harris and Donaldson, and this deponent has no doubt it will be collected. This deponent further saith, that he sold a tract of land- in Indiana county to George Armstrong,Esq. for one thousand dollars. That, hy agreement Mr. Armstrong retained five hundred dollars, to be applied to the payment of judgments of'record, against the said James. Duncan,, and that áll the judgments in Indiana county, except one due to- Matthew Jack of about six hundred and, twenty dollars, which were liens against the, land sold ■ to Mr. Armstrong', have been paid off.</p> <p>The plaintiff in error prays, that the testatum writ olfieri facias, issued to the sheriff of Bedford county, may be reversed,and set aside, because the judgment was satisfied by the levy made on a lot of two hundred hogs, by virtue of the execution returnable to February term, 1823. . '</p>

IN ERROR. Writ of error'to the Court of Common Pleas of Beaver county, where judgment was rendered in; favour of the defendants below, who were defendants in error. ' The plaintiffs Wiley and Earl, brought this action bofore a justice of the peace, of debt on bond against Moor and Thompson, and it carrie by appeal into the Court of Common Pleas.

<p>Devise to testator’s daughter C., her heirs and assigns. Another devise to testator’s daughters S. and M. respectively, and their respective heirs and assigns. -If either of them died without issue, that then'the share of the said daughter should vest in the other two if living, or in the daughters’ surviving-children, &c. Held, that S, took an estate tail, with remainder in fee to her sisters or their children.</p>

APPEAL. Appeal from the decision of Htjston, J., holding a Circuit Court in Pittsburg. 1 This case was as follows: — The late Captain N. Irish of Pitts-burg,' made a will in 1809; on the death of a son he made another will, dated in 1813, and regularly cancelled the first.

<p>In a suit against several partners, some of whom only are,served, and appear and plead to issue, the plaintiff rannot c.ompel one of the others not served nor appearing, to testify on his behalf. ■ n . '</p> <p>.The admission of one of the defendants sued as partner, that he and others composed the firm, is evidence. ■ '</p> <p>Though in a suit against several partners, some of whom have not appeared, the plaintiff declares against all, he may, after verdict against the rest, have judgment against the latter. .</p>