Volume 18 — Pennsylvania State Reports

<p>1. All the assignees of a lot of ground subject to ground-rent, though claiming by assignments of different dates, may be joined in an action of covenant for the recovery of arrears of the ground-rent accruing after their several assignments.</p> <p>2. A conveyance of a lot subject to ground-rent was made to A., and also to B. and 0., guardians of certain minor heirs, to have and to hold to them, their heirs and assigns, to and for their only proper use for ever; the assignees went into possession, and received the rents till the property was subsequently destroyed by fire. Held, That as to B. and 0., the term guardians, &c., was but description; and, as they took the possession and received the rents, they were personally responsible for the arrears of ground-rent subsequently becoming due.</p> <p>3. The liability of an assignee of a lot subject to ground-rent is created by Ms acceptance of the assignment, and his possession or right of possession ; and where such an assignee did not take actual possession, but did not disclaim the acceptance of the assignment, this Court, in the absence of other evidence, will presume that he had accepted the assignment, and, having the right to possession, he is personally responsible for the rent accruing after the assignment to him.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action in the name of David Calhoun and James Leech, surviving Robert Curry and Samuel Hamilton, members of the building committee of the Mifflin township meeting-house, against William Chambers. A case was stated, in which it was submitted, that a meeting of the congregation of the Associate Reformed Church of Mifflin township, Allegheny county (an unincorporated religious association), was held in 1842, at which it was resolved that a new house of worship should be built. William Chambers, the defendant below, and plaintiff in error, was there, a member; and in order to enable them to build the church, he signed a paper, viz.:</p> <p>“ The subscriber promises to pay, or order to be paid, the sum hereunto annexed to my name, in current paper money, for the purpose of building and completing a brick meeting-house, to be built and finished in a workmanlike manner, of good materials, on the ground now in possession of the congregation, &e.; said sum to be paid to the building committee in the manner following, &c.; in all amounting to $500.” The subscription paper was delivered to the congregation, who resolved that a new church be erected, and five persons were appointed a building committee. Such committee was composed of William Chambers the defendant, Leech and Calhoun, the plaintiffs in this case, and two others, who were dead when this suit was brought. The committee proceeded with the building, and it was completed. Chambers paid $125 on account of his subscription. This action was brought by the surviving members of the committee, exclusive of Chambers himself, to recover from him the balance.</p> <p>Before the suit was brought, it was, at a congregational meeting, resolved that the building committee be discharged from further duties; also, that the congregation proceed to collect the obligation of William Chambers; that (Kennedy, and others named,) be a committee to wait on Chambers in relation to his obligation, and that the committee (last named) be empowered to collect the balance on the building subscription lists.</p> <p>“ If the Court should be of opinion that, upon this state of facts, the above-named plaintiffs are entitled to recover, then judgment to be entered for plaintiffs for the balance; but if not, judgment to be entered for defendant with costs, either party reserving the right to sue out a writ of error.”</p> <p>June 10, 1850. Judgment was entered on the case stated for the plaintiffs, for $460.</p> <p>Error was assigned to the entry of judgment. The questions at issue were: 1. Whether the plaintiffs in the suit, could maintain the action in their names alone, omitting that of Chambers; and 2. Whether they could maintain the action after having been discharged by the congregation, and a new committee appointed.</p>

<p>1. A bond payable in current bank notes becomes payable in money, by a failure to deliver or tender at tbe day of payment; and if the amount be fixed there is no necessity for a writ of inquiry to liquidate it.</p> <p>2. Judgment being entered, under warrant of attorney, on such a bond, which was payable in instalments, it was not necessary to issue a scire facias on a succession of breaches; such a bond is not within the purview of the 8 & 9 William III. ch. 2.</p> <p>3. The times of payment of the instalments being stated in the entry of judgment, execution might issue without obtaining leave of Court. The Court in which the judgmentwas entered, has control over judgments entered on warrant of attorney, and if payment had been suggested, might have awarded an issue.</p>

<p>Appeal from the decree of the Court of Quarter Sessions of Allegheny county, in the matter of the removal of Sarah Edmonson, a pauper.</p> <p>It was alleged that Hugh Edmonson, the husband of the pauper, resided in Mifflin township from April, 1832, till April, 1838, and while there paid his proportion of the public taxes, and paid rent for the property he resided on. On the 1st of April, 1838, he removed to Sinclair’s land, in Elizabeth township, and in September or October of the same year, he there died. His widow and family continued to reside on the Sinclair land till 1st of April, 1839, and gave the landlord his share of the grain. On the 1st of April, 1839, Sarah Edmonson removed back into Mifflin township, leased a house from Curry, at the rent of $18 for the year, and she and her children resided there for one whole year, and she paid the said rent. She afterwards returned to Elizabeth township, and on an application to two justices of the peace, an order was issued for her removal to Mifflin township. From this order the overseers of the poor of Mifflin township appealed to the Court of Quarter Sessions, who afterwards approved of the order of removal, and adjudged that the overseers of the poor of Mifflin township pay to the overseers of the township of Elizabeth, $>48.28 and the costs.</p> <p>From this decree an appeal to the Supreme Court was entered, and exceptions were filed; one was, That Hugh Edmonson, husband of Sarah, was, at the time of his death, a citizen of Elizabeth township. A motion was made to dismiss the appeal, on the ground that the decree of the Court of Quarter Sessions was final and conclusive. It was alleged that the 16th section of the Act of the 13th June, 1836, entitled “ An Act relating to the support and employment of the poor,” provides for the removal of a pauper from one district to another by a warrant or order of removal, granted by two magistrates. The 19th section provides, “ That any person aggrieved by any such order of removal, may appeal to the next Court of Quarter Sessions for the county from which such poor person may be removed, and not elsewhere.” The 24th section, “ If any magistrate shall refuse to grant a warrant or order of removal as aforesaid, it shall be lawful for the overseers aggrieved by such refusal, to appeal to the next Court of Quarter Sessions, for the county in which such magistrate resides, who shall thereupon hear and finally determine the same.” Section 44. ■“ If any person shall be aggrieved by the judgment of any one or more magistrates in pursuance of this Act, he may appeal to the next Court of Quarter Sessions for the county in which such magistrates reside (except in cases hereinbefore specially provided for), whose decision shall be final and conclusive.”</p> <p>It was contended, therefore, that the Act of Assembly, under which the proceedings in this case 'were had, does not authorize any appeal from the decision of the Court below.</p>

This was a bill in equity filed by Hamilton v. Hamilton’s executors, in which it was stated that the complainant, in 1886, entered into ,a partnership with defendant’s testator, for the purpose of erecting and constructing a railroad and dock, at the coal works of Bosby, Kramer & Company, and that the partners were to hear an equal proportion of the expense of construction, and share equal profits.

<p>A testator devised to his brother, his “landproperty,” and certain personal property. It was held, That the devisee took a fee simple in the land so devised.</p>

<p>This was an appeal from the decree of confirmation of the Court of Common Pleas of Allegheny county, in a proceeding for the extension of Hancock street, in the city of Pittsburg.</p> <p>The proceedings took place under the provisions of the 7th, 8th, 9th, and 10th sections of the Act of 6th April, 1850, Acts of 1850, p. 388-9. The Act provided for the appointment of viewers for the extension of Hancock street, and provided that if the viewers be of opinion that the proposed increase of width of the street is expedient, they should give notice to all persons interested in defraying the expense thereof, and further “ ascertain and determine what lots in the vicinity of said extension will probably be benefited by the opening of the said street, and divide and apportion, on equitable principles, the amount that each shall separately contribute to defray the damage incurred,” &c. It was provided further that the street shall not be opened unless the viewers shall ascertain that the benefits which shall accrue to property in the vicinity of the street, will be fully equal to the damage and costs which will be occasioned by the opening of the same.</p> <p>The viewers reported in favor of the extension, and that certain scheduled lots were in their judgment benefited and increased in value to the amount assessed on each of the said lots, which sums they adjudged to be paid.</p> <p>Exceptions to the report were filed, the most material being that the Act was unconstitutional; and that the viewers exceeded their powers in assessing property not in the vicinity of the street. See exceptions stated in the opinion of McClure, J. The exceptions were overruled, and the report confirmed.</p> <p>Exception was filed to the overruling of the several exceptions.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit, brought by Abraham Horbach, since deceased, to recover contribution from Samuel Elder, the defendant, for his share and proportion of certain money paid by said Horbach in discharge of a liability, to which, it was alleged, the defendant was subject in common with the said A. Horbach and others. Davidson and Pennock, as administrators, &c., of Horbach, were substituted in his stead, after verdict.</p> <p>In the fall of 1837, Abraham Horbach, the decedent, Samuel Elder, the defendant, together with three other persons, to wit, McCall, Reisher, and Sproat, were the proprietors of a line of coaches running from Ohambersburg to Pittsburgh. By agreement among the members of the said company, each of them was to furnish coaches, horses, drivers, &c., for a certain designated portion of the route. Each member of said company was to be the exclusive owner of the stock and stages on his part of the route, employing his own drivers, paying his own bills, drivers, &c., and had no control over the drivers on other parts of the route than his own. Each member was bound to deliver his passengers and baggage at the end of his distance to the next proprietor, and was to receive a share of the profits or dividends in proportion to the number of miles on which his stock was used. Samuel Elder, the defendant, stocked the road from Snyder’s to Ligonier, a distance of about thirty-seven or thirty-eight miles. Abraham Horbach stocked the road from Ligonier to Greensburg, a distance of about nineteen or twenty miles. He also ran a line from Greensburg to Pittsburgh, a distance of thirty-one miles, on alternate days. William McCall also ran a line from Pittsburgh to Greensburg, on alternate days; the said lines of McCall and Horbach making together a daily line. The remaining portion of the said route from Chambersburg to Pittsburgh, was stocked by the other members of said stage company, Sproat and Reisher. The whole distance from Ohambersburg to Pittsburgh was one hundred and fifty miles. While the said stage company was so employed in the carrying of passengers from Ohambersburg to Pittsburgh, one of the stages in the line, owned exclusively by McCall, and driven by a driver employed by him, was, through the carelessness of the driver, overturned on its way from Greensburg to Pittsburgh, as it was leaving the former place, and three of the passengers were injured. Suits were brought in the District Court of Allegheny county, by the passengers injured, against all the partners, to recover damages for the injuries sustained. Only two of the defendants in the said suits, to wit, McQall and Horbach, were served with process. As to the other three, Elder, Reisher, and Sproat, the writs were returned N. E. I. In the said suits the declarations were in case, alleging that the said McCall, Horbach, Reisher, Elder, and Sproat, were joint owners and proprietors of the said line of coaches. Judgments were obtained by plaintiffs in the several suits against said McCall and Horbach for sums amounting in the whole to $812.25, of which amount, together with costs of suit and interest, Horbach paid about one-half, under execution. It also appeared that Horbach was not present at the time of the overturning of the stage; that he had no agency in the employment of McCall’s driver, by whom the stage was overturned, nor any control over him.</p> <p>In the course of the trial, a witness called on the part of the plaintiff, testified {inter alia) as follows: “ Each one of the proprietors owned his own stages and stock, and had his own drivers. The usual way of making dividends was so much a mile, and the party was paid according to the distance run by him.”</p> <p>After the evidence was closed, the Court charged the jury, pro forma, that the plaintiff was entitled to recover, and instructed them to ascertain the amount, reserving the questions of law. Verdict was rendered for the plaintiff for $141.64, subject to the opinion of the Court.</p> <p>Hepburn, J., in his opinion, inter alia, observed that the claim was resisted on two grounds: 1st, That the actions were for negligence, and that no contribution can be enforced as between tortfeasors ; 2d, That the proprietors of the stage line were not partners, and not responsible as between themselves for the drivers of each other; and as the aceident occurred in McCall’s stage, that he alone is answerable. The Court observed, as to the first point, that the principle applies only where the parties have been guilty of some known illegal act, and did not apply to partners or joint contractors, who are rendered liable by the act of a servant for whose conduct all are responsible. In this case Horbach was not present when the injurious act was done, and was not in fault in the matter; and unless there was some limit to their responsibility in the agreement, it would seem reasonable that the loss should be equally borne by all of the parties to it. But he observed that the difficulty in the case arose out of the agreement of the parties. Were they partners, or, in respect to each other, was each responsible for his own acts and those of his servants ? He said the agreement itself had not been produced, but that from the evidence given it would appear that the proprietors did not intend to be responsible for each other; and in the case in question, the injuries were sustained on the part of the road travelled by the stages of Horbach and McCall, in a stage which was the separate property of McCall, and when in charge of a driver employed by him and under his exclusive control. That McCall alone, as between the partners, was answerable for the injuries, and that Horbaeh was not entitled to contribution in the case from the defendant. Judgment was entered for the defendant, non obstante veredicto.</p> <p>Error was assigned to the decision that the members of the stage company were not partners as to each other, and that they did not intend to be responsible for each other in any respect; 2d, To the decision that Horbach was not entitled to contribution from tbe defendant; 3d, In entering judgment for tbe defendant non obstante veredicto.,</p>

<p>Habeas corpus before the Supreme Court, at the instance of Joseph Dows.</p> <p>Joseph Dows was a fugitive from justice from the county of Allegheny, Penna., being at the time he fled charged, by indictment, with forgery, and, by complaint of W. Thompson, with obtaining money under false pretences. It being ascertained that he was in the state of Michigan, a requisition was made by the governor of this state upon the governor of Michigan for his surrender. In pursuance thereof, the governor of Michigan issued his warrant to arrest and surrender the said Dows to the authorities of this state. Afterwards the said Dows was arrested at Detroit, by the officers of the steamboat “ Ocean,” when on board of said boat, and was carried to Erie, in this state, and there delivered to the sheriff of Erie county, and conveyed to Pittsburgh and lodged in jail. The officers of the said steamboat had not any warrant in their hands at the time of the arrest, and the sheriff of Erie county was also without warrant.</p> <p>In the forgery case the said Dows was held in custody on a warrant issued out of the Court of Quarter Sessions; and in the other case, on a warrant issued by an alderman. He claimed to be dischai’ged because of the defect in the mode of his original arrest.</p>

This was an action on the case by William J. Leonard and Erancis M’Olure, partners, &c., v. James Hendrickson and others, owners of the steamboat Peytona, for the value of certain timber, which was carried adrift from a place where it had been fastened, on account of a rise in the river Monongahela, after having been taken in tow by the captain of the steamboat.

<p>A patentee, in consideration of the re-assignment of a patent right, agreed under seal to refund to the assignee the amount of money expended by him in the prosecution of suits for violations of the patent right, out of the first verdict for damages, if sufficient to pay the whole thereof ; and if not sufficient, then to pay the balance out of the next verdict; and if the patent right be established, and no damages recovered, then ho was to pay the sum so expended within twelve months from the date of the said judgment; but if the said patent be not sustained, then the agreement to be void. By a further instrument, written on the same paper on which the said agreement was written, and dated above seven years afterwards, ho acknowledged himself to be indebted to the assignee in a definite sum, being the amount due him on settlement for counsel fees, costs, &c., in the said suits;—</p> <p>It was Held, that no new consideration being shown for the new promise, its object was merely to ascertain the sum to be paid under the sealed agreement, and that it was not a new and independent agreement; and therefore that the action should not have been in assumpsit for the amount fixed in the latter instrument, but in debt or covenant on the conditional contract.</p>

<p>1. The keeper of a boarding-house may recover his claim for boarding a person and his family, though during the same period of time he furnished the said individual with liquor, for which the former had an account; the said boarding-house keeper, during the same time, not having any license to sell liquor.</p> <p>2. The claim for boarding will not be prejudiced or barred by the fact that the entii'e claim for boarding and liquor had been previously presented to the debtor.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a claim under the Mechanics’ Lien law, by John White, John Owen, and John Ross, partners, doing business under the firm of White, Owen, & Ross v. William L. Miller, owner, and James McCracken, contractor.</p> <p>July 20th, 1849, it was agreed between the parties to the proceeding, that the case be stated for the opinion of the Court in the nature of a special verdict.</p> <p>White, Owen, & Ross, the plaintiffs, furnished lumber, &c., to James McCracken, the contractor, to be used in the erection of the house,of Wm. L. Miller, against which the lien in this case is filed, to the amount or value of $109.57, which, with interest thereon from the first of May, 1848, they claim to recover in this suit. A portion of this lumber, to wit: 2620 feet of boards, of the value of $53.30, was levied and sold on an execution against the contractor after it was delivered on the ground on which the house is erected, and before it was worked into the house. Another portion, to wit, twelve dozens of nine-by-twelve window-sash, of the value of $9, was taken by the contractor from the mill of the plaintiffs, to some shop for the purpose of having it painted, but were never taken to the lot on which the house is erected, nor used in the same. The lien in this case was filed within the time required by law. If the Court should be of opinion that the plaintiffs are entitled to recover the whole of their bill, then judgment to be entered for them for the amount of their claim; but if the Court should be of opinion that the plaintiffs are not entitled to recover the value of the boards that were not actually used in the erection of said house before they were sold as the property of the contractor, nor entitled to recover the value of the window-sash which were delivered to the contractor, but never taken to the premises, then judgment to be entered for the plaintiffs, with such deduction or abatement as the Court shall,think right. The costs to follow the judgment, and either party reserving the right to sue out a writ of error.</p> <p>Lowrie, J., directed judgment to be entered for but part of the claim, viz., $47.27; interest to be added from 1st May, 1849.</p> <p>It was assigned for error, that the Court erred in not entering judgment for the plaintiffs for the whole amount of their claim in the case stated.</p>

<p>Error to tbe District Court of Allegheny county.</p> <p>This was an action of debt in the name of The Major, Aider-men, and Citizens of Allegheny City against Clemson Moore, on k joint and several bond, executed in 1847, by D. H. Scott, as collector of taxes for the second ward of the city of Allegheny, and by Clemson Moore, the defendant, as his surety. October 23, 1850, verdict was rendered for the plaintiffs for the amount of the penalty of the bond, to be released on the payment of $2306.07, subject to the opinion of the Court as to the liability of the defendant.</p> <p>The pleas were: 1. That the plaintiffs ought not to maintain this action, because the assessment of 1847 of the second ward of said city, was illegal and void, the said plaintiffs having assessed a city and poor tax upon the persons of married men living in said ward, and upon the trades, professions, bonds and mortgages, bank stock, and moneys at interest, of persons living in that ward.</p> <p>2. That the plaintiffs delivered the duplicate of the assessment in said declaration mentioned, to D. H. Scott, in violation of law, and without the requirements of law on his behalf having been complied with.</p> <p>3. That the plaintiffs and their agents, during the time D. IT. Scott assumed to act as collector as aforesaid, were grossly negligent and careless of their legal duty to compel the said Scott faithfully to pay over his collections, &c.</p> <p>It was admitted by the defendant that he signed the bond declared on; that there remained unpaid to the plaintiffs the sum of $2124.75, according to the assessment mentioned in the first plea of defendant; and that the Mayor delivered the duplicate to D. H. Scott, and that he collected in pursuance thereof about $2124.</p> <p>Hepburn, J., directed judgment to be entered for the plaintiff on the verdict.</p>

<p>1. A lease for years is the subject of levy and sale on fieri facias. It is not necessary that the Sheriff execute and acknowledge a deed, to pass the property to the purchaser.</p> <p>2. A lessee having a lease of real estate for five years, during the first year assigned absolutely all his interest under it for the last four years. Held, That such assignment to commence at a future time was valid.</p> <p>3. An assignment by a lessee for years of all his interest in the premises, is valid, though he remain in possession of a part of the premises. His remaining in possession will not avoid the assignment in favour of a purchaser of his interest at sheriff's sale, under a judgment obtained against the lessee, subsequent to the assignment. An immediate change of possession is not necessary to the validity of an assignment of a chattel real.</p> <p>4. Leases for years under twenty-one years, accompanied by possession, need not be recorded; nor assignments of such.</p> <p>5. Any remaining interest of the lessee in one of the buildings on the premises which was occupied by him, and his reserved interest in the valuation of the buildings on the same premises, were the subject of levy and sale on execution.</p>

Jacob E. Brandt, plaintiff in error, v. Alexander McKeever. Jacob E. Brandt instituted before an alderman an action of trespass v. Alexander McKeever, for taking sand and gravel from a certain portion of the bed of the Monongahela river, which had been and was at that time embraced within his survey of 100 acres made on a warrant, dated 24th April, 1848, under the Act 11th April, 1848. See Pamphlet Law of 1848, p. 533.

<p>1. A testator devised to his son Janies, all his property real, personal, and mixed, for and during his natural life, and to his heirs for ever, viz., the children of James, being three in number, and naming them, to be divided by them in the manner stated in the will; and he further provided “ that if either of my said grandchildren die before my son James, without leaving lawful issue, then his or their share shall go and bo equally divided among the survivor or survivors; and if all three should die without leaving lawful issue, after the death of my son James, then my entire estate to go to my next nearest kin, now living in Ireland, to be divided by them share and share alike." A common recovery was suffered in which James was defendant, and in which two of his said children were vouched, and who vouched over the common vouchee. —Held, that the failure of issue, described by the testator, was not a general one, but a particular one which would happen, if at all, in the lifetime of James the son; the estate limited in severalty to each of the three grandchildren, was a qualified or defeasible fee, on which was mounted, by executory devise, a further limitation in fee to the survivor or survivors, at the death of their father; that a common recovery does not bar such a limitation, but, on the principle of estoppel, it passes the estates of the children who were parties to it.</p> <p>2, Held, that the final limitation to the next of kin ncno living in Ireland, was an executory devise to the next of kin on the happening of a failure of issue; that the failure of issue was not restrained to the lifetime of the survivor of the devisees in Ireland, but that those terms were intended to designate them as a class, and were designed to extend to the descendants of such devisees and to imply a general failure of issue, which was too remote; that the executory devise was therefore void; and as the intermediate limitations to the grandchildren were destroyed by the common recovery, the estate vested absolutely in James, the son of the testator.</p>

This was an appeal by Brown from the judgment of a justice of the peace, in a suit by the school directors of Green township, against him, for a school bill for $1.11. Before the justice the defendant denied that plaintiffs had any legal claim against him, and claimed a set-off for $99. The plaintiffs asked for an adjournment for want of witnesses, which was granted.

<p>This was an action of ejectment brought by Jane M. Walters against James Caldwell and others, to recover one undivided sixth part of reserve tract No. 32, near the town of Erie, containing ninety-two acres of land.</p> <p>Daniel McDonnal owned reserve tract No. 42, who died intestate in the year 1813, leaving six children, one of whom was Jane M. Walters, who brought this ejectment to recover her share of said tract of land.</p> <p>Jane, the plaintiff below, intermarried with one Charles S. Walters, and on the 14th day of April, 1829, the said Jane and Charles Walters gave bond with warrant of attorney to Elizabeth Stewart, for $129; upon which bond judgment was entered in favor of Elizabeth. Stewart against Charles S. Walters and Jane M. Walters, in the Court of Common Pleas of Erie county, No. 78, of April Term, 1829. Upon this judgment a fi. fa. issued, tested February 5, 1830, by virtue of which the sheriff levied on all the interest of the said Charles S. and Jane M. Walters, in said reserve tract, No. 42. The land was sold by the sheriff upon a venditioni exponas, tested April 10,1830, for the sum of $100, to the said Elizabeth Stewart, to whom the said sheriff made a deed. Elizabeth Stewart conveyed the same land to James Caldwell, by deed dated August 1, 1834, for a valuable consideration. The said Caldwell entered upon the land, made valuable improvements, and paid about $400, the balance of the purchase-money due the Commonwealth, and on the 12th of May, 1840, obtained a patent from the Commonwealth for the land in controversy. The main question presented to the Court below was, whether the sheriff’s sale to Elizabeth Stewart, the subsequent conveyance by her to James Caldwell, and the other circumstances attending the case, conveyed any or such title to James Caldwell, as to protect him against the claim of Jane M. Walters. The Court decided in favor of the plaintiff below.</p> <p>The judgment in the Common Pleas was, to April Term, 1829, and in favor of Elizabeth Stewart v. Charles S. Walters and Jane M. Walters. It was stated in the narr. that Charles S. Walters and Jane M. Walters, his wife, were summoned to answer Elizabeth Walters in a plea of debt, for that the said Charles S. Walters and Jane M. Walters, on the 14th April, 1829, &c., by their writing obligatory of that date, sealed with their seals, &c., acknowledged themselves to be indebted to the said Elizabeth Stewart in the sum of $258, &c.</p> <p>On the part of the defendants, points were submitted as follows:</p> <p>1. That the judgment in this case is not void, but only voidable, and that being so, the plaintiff cannot impeach the judgment in evidence in this case.</p> <p>2. That even if void, being regular on the judgment docket, the purchaser from sheriff’s vendee was not bound to look further, if even thus far, than to such judgment only.</p> <p>3. There being no notice to defendants, when the bond was executed on which judgment was entered, defendants were not affected by anything that might render said judgment void, as between the parties.</p> <p>4. That the sale by the sheriff, of the land in question, divested all the right and interest therein of defendants in the judgment of Elizabeth Stewart v. Charles R. Walters and Jane M. Walters, and the title made by sheriff is good, although the judgment may be declared erroneous and set aside, and this by the terms of the 9th section of the Act of 1705.</p> <p>5. Even if this should not he so as between the' original parties to this judgment, the defendant is an innocent purchaser, without notice of anything that might affect the judgment and sale in the case.</p> <p>6. The plaintiff cannot in any event recover against Caldwell, without a tender of her share of the purchase-money paid to the Commonwealth.</p> <p>Church, J., inter alia, charged that the bond and warrant and the judgment thereon, as respects the plaintiff in the ejectment, are void if she was a feme covert at the time; and that her title was not divested by the sheriff’s sale. As to the second point, he charged that the record disclosing that she was a feme covert, the sheriff’s vendee and her subsequent purchaser were affected with notice. As to the third, that the record at all events disclosed enough to put the purchaser from the vendee on inquiry; the fourth, that as there was no judgment against the wife, the sheriff’s sale did not divest her interest in the land. To the fifth, that the defendants were not innocent purchasers; and to the sixth, that the rule of law referred to in the point has no application to this case, as there was no privity between the plaintiff and Caldwell; that the procuring of the patent was a voluntary act, and did not interfere with the right of plaintiff to recover.</p> <p>It was assigned for error, that the Court erred in answering the defendants’ points in the negative; 2. The Court' erred in their charge by instructing the jury that the sheriff’s sale and subsequent conveyance by the sheriff’s vendee vested no title in the defendants below.</p>

<p>1. In an action on articles of agreement, brought in the name of the legal party for the use of another, it is not competent for the defendant to controvert the validity of the transfer of the instrument on which the suit was brought.</p> <p>2. In such an action if the assignee show a right in the legal plaintiff, he need not show any right in himself.</p> <p>3. In an action of covenant on articles of agreement between two persons for the sale of land, the suit being brought against the vendor, in the name of the vendee for the use of another who claimed under an assignment of the articles made several years before the institution of the suit, it was shown that several years before suit brought, the vendee had notified the vendor not to make deed to the assignee, and it appeared that in the year before suit brought, the vendor had delivered to the vendee a deed for the land; it was Held that the cestui que use could not recover against the vendor, who had complied-with his covenant by conveying to the vendee; — whatever remedy the cestui que use had was against the vendee, from whom he claimed.</p>

<p>Error to the Common Pleas of Brie county.</p> <p>This was an action of replevin brought by Lester, Sennett, and Chester, against A. S. McDowell, for 1000 bushels of rye.</p> <p>Lester, Sennett, and Chester, on the 22d day of May, A. d. 1847, contracted with William Gibson for 1000 bushels of rye, then at the store of said Gibson, in Jamestown, Mercer county, to be delivered by the said Gibson in a warehouse in Owerytown, alias Adamsville, in Crawford county, within ten days from the making of' said agreement (free of charge), at the price of 40 cents per bushel, to be paid for in a note payable at the Erie Bank, three months from said date, with interest.</p> <p>The said Gibson delivered the rye in the warehouse designated in the contract. The defendant was the owner and master of a canal-boat, and a common carrier on the Conneaut line of the Erie Canal. The plaintiffs employed the defendant to go with said boat from Erie to Owerytown after said rye, and gave him an order to get the rye. He went to Owerytown, where the rye was in store. The warehouseman was unwilling to deliver the rye unless Gibson was present. Gibson was sent for and came, but refused to let the rye be shipped as the property of the plaintiffs, but shipped it in his own name. McDowell, the boatman, brought the rye to Erie, but refused to unload it where the plaintiffs directed, and was about to deliver it to another person, when the plaintiffs replevied the rye. The said William Gibson set up a claim of property in himself. The main question was, whether there was such change of ownership in the rye as to entitle the plaintiffs to recover. The Court below decided that point against the plaintiffs.</p> <p>The plaintiffs, to support the issue on their part, read a paper as follows:</p> <p>“We have sold all the rye we had, say one thousand or twelve hundred bushels, to be delivered at the storehouse, free of charge, at Owerytown, within ten days, for forty cents per bushel, payable in a bank note, at the Erie Bank, three months from date, with interest.- William Gibson,</p> <p>“ Jamestown, May 22. per A. S. Smith.”</p> <p>The plaintiffs proved a tender made some days after the expiration of the ten days, of a promissory note, dated May 22, payable to William Gibson, or order, three months after date, for $400, at the Erie Bank, signed Lester, Sennett, and Chester.</p> <p>After plaintiffs had closed their evidence, the defendant’s counsel called A. S. Smith, who was objected to on the ground of interest, and depositións were referred to to prove his interest. He was, however, admitted by the Court, and was qualified; and on his cross-examination admitted that he was interested in the rye. The Court subsequently instructed the jury not to consider the testimony of Smith.</p> <p>The plaintiffs’ counsel requested the Court to charge the jury,</p> <p>1. That the contract in evidence recites that by its terms the rye was sold; the contract is executed by a delivery at the time and place fixed by the said contract; and the delivery transferred the possession to plaintiffs.</p> <p>2." That the contract is fully complied with on the part of the plaintiffs, by a tender of a note signed by plaintiffs for the rye, payable at the Erie Bank, in three months after the date of the contract, to wit, 22d of May, 1847.</p> <p>8. That the contract on the part of Gibson and Smith, is an independent undertaking, which they were obliged to perform as such; and having performed it, the property vested in plaintiffs, and right of action accrued thereon to the vendee.</p> <p>4. That Smith being interested in the rye, his testimony was not to be considered.</p> <p>5. That time is not of the essence of the contract in this case; and if any injury occurred by reason of nondelivery of the note agreed to be delivered by plaintiffs for from two to four days, it can’ be compensated in damages.</p> <p>For extracts from the charge of Church, J., see the opinion of Chambers, J.</p> <p>It was assigned for error: — 1. The Court erred in overruling, plaintiffs’ objections to the admission of A. S. Smith, as a witness, and admitting him to testify. 2. The Court erred in their general charge to the jury. 3. The Court erred in not fully answering the plaintiffs’ points; and in answering them in the negative as far as they were answered. 4. The Court erred in the conclusion of their charge in relation to A. S. Smith’s testimony, and the effect of his separate declarations.</p>

<p>Error to the Common Pleas of Mercer county.</p> <p>This was the case of an attachment execution, issued by Yincent and Himrod against Irvin, defendant, and Watson & Whitaker, garnishees. The attachment execution was issued on 21st July, 1849. An agreement under seal, dated July 7,1849, was entered into between Irvin, and Watson & Whitaker, whereby Irvin leased to Watson & Whitaker certain furnaces; viz., the Hope and Perry, and Harry of the West, and ore banks, at a rent of 75 tons of pig metal yearly for each furnace; to pay only for time the Hope and Perry are in blast; which period is entirely optional with said Watson & Whitaker; and by the same agreement Irvin sold unto said Watson & Whitaker all the personal property at said furnaces for $12,816, to be paid in pig metal; one-fourth on May 1, 1850; like sum on November 1, 1850; like sum on May 1, 1851; and like sum on November 1, 1851; said Watson & Whitaker to collect all the debts due said Irvin at the Harry of the West, and to account to him for the same; also to enjoy the benefit of all advances made by the said Irvin to workmen on wood contracts, &e., and to account to him for the same, “ and to assume and pay whatever domestic debts or liabilities of said Irvin they may thinle proper, and to be allowed for the same.”</p> <p>The said Watson & Whitaker to enjoy the benefit of all contracts made at said furnaces for wood, &c., and to pay all debts and liabilities arising from the same, both past and future.</p> <p>Said Irvin sells also 15 tons pig metal, for which Watson & Whitaker are to pay $20 per ton; 5 bags of coffee, 3 barrels of sugar, chest of tea, and 5 kegs of powder, to be paid for at cost and carriage, being in transit from Pittsburgh.</p> <p>The plaintiffs here closed.</p> <p>On the part of the defendants, testimony was given, that after the contract was signed, Irvin gave instructions to pay the domestic creditors as soon as they could; also, that defendants paid $1190.16 before service of attachment, and $2270 since. That Perry furnace was in blast but two months after July 7, 1849.</p> <p>It was testified that before the service of attachment at the Harry of the West, Watson publicly assumed all the debts of the hands and the farmers throughout the country; the hands had quit work and gathered around the furnace; the amount of indebtedness of Irvin was $13,022; and thatWatson & Whitaker were to pay the debts of the Perry furnace.</p> <p>It was also testified that defendants, after the service of the attachment, paid off an execution in favor of Leech & Son, which was issued in June, 1849, and had been levied on the personal property of Irvin, before the sale to Watson & Whitaker.</p> <p>Defendants here closed.</p> <p>On the part of the plaintiffs the Court was requested to charge the jury “ That the general assumption made by Watson, in the presence of Mr. Hanna, would not bind defendants, at least so far as regards those creditors who were not present, there being no consideration to support it.”</p> <p>The Court charged the jury, that by virtue of the contract, defendants had the right to assume the payment of the debts of the said Irvin, and that they did assume .to pay the same, by the said Watson declaring publicly at the Harry of the West, that they assumed to pay all the debts of the hands and the farmers through the country; and that said assumption was binding on them,. even as to the creditors not present; and as such assumption was made before the service of said attachment, the plaintiffs are not entitled to recover.</p> <p>Verdict was rendered for the defendants, Watson & Whitaker.</p> <p>Error was assigned to the answer of the Court to the plaintiff’s point.</p>

<p>1. It was not error to admit a patent for a donation tract, merely because an interlineation existed in it of the letter 0 over the number of the tract— the question, whether the interlineation was made before or after the execution of the patent, might have been raised before the jury.</p> <p>2. A deed dated in October 1796, for land in Pennsylvania, was acknowledged before a judge of the Common Pleas in Hunterdon County, New Jersey, in the same month and year, and a certificate of the clerk of the Court of Common Pleas of that county was made in 1849: Held, that the irregularity in the acknowledgment was cured by a subsequent Act of Assembly passed 10th April, 1849, validating acknowledgments made before a Court of probate or Court of record of any state or territory, and that the acknowledgment and certificate need not be immediately consecutive acts.</p>

<p>Error to the Court of Oyer and Terminer and Court of Quarter Sessions of the county of Butler.</p> <p>This was an indictment against John Prine and others, for burglary and larceny. The record set forth as follows : January 16, 1851, defendants being arraigned, plead not guilty, and put themselves on their country for trial, and the Attorney-General similiter. January 16, 1851, jury called, empannelled, and sworn, and verdict, “ guilty in manner and form as they stand indicted.” “ Defendants’ counsel waived the presence of the prisoners, and, at request, of defendants’ counsel, jury polled, when they severally answered that they found the defendants guilty of the burglary of which they stand charged in the indictment.”</p> <p>January 25, 1851. The prisoners were sentenced as stated on the record.</p> <p>It was, inter alia, assigned for error, that: 1. It does not appear from the record that the prisoners were present during the trial.</p> <p>2. The record shows that the prisoners were not present when the verdict was rendered by the jury.</p> <p>3. It does not appear from the record that the prisoners were in court when sentence was pronounced upon them.</p>

<p>Error, to the Common Pleas of Armstrong county.</p> <p>This was'an action of ejectment brought by David Beatty against Peter Byers, James Hays, and Robert Hays, to recover 85 acres of land, situate on.the west side of the Allegheny river, in said county. The plaintiff claimed the land by virtue of an actual settlement made by Samuel Anderson, and by clivers mesne conveyances, vesting the title to the land in William Kiers. Kiers died in 1824, after having made his will, dated 3d August, 1824, duly registered in Armstrong county on the 26th August, 1824, by which he devised to his wife Elizabeth $100, and her choice of one horse and one cow, and her bed, and such household furniture as is necessary for her comfortable accommodation, she to have the place and her living off the same until it is sold; to Nancy Mounts and Sebra Mounts, each a cow and bed apiece; to his son William Bell $50 ; to his son Andrew Kiers $80 ; to his son James Milligan $50; to his son Jacob Grarver $50, and to his son Elisha Mounts $80. And when the place is sold, should it amount to moi’e than what is above mentioned, they are to make an equal distribution. He appointed James Beatty and John Young his executors.</p> <p>On the part of the plaintiff was offered in evidence a deed, dated 26th January, 1847, from Elisha Mounts to David Beatty, the plaintiff, in fee, for all his interest in said land, and “ all the rents, issues, and profits thereof, and all the proceeds and money arising or derived or to be derived thereof, under and by virtue of the last will and testament of said William Kiers,” and it was also offered to prove that defendant claimed under a purchase of the interest of one of the legatees; also that defendant took possession in pursuance of said purchase. This was objected to on part of defendants, and the objection was sustained by the Court. Exception on part of plaintiff.</p> <p>Plaintiff’s counsel further offered to prove, that defendants admitted that plaintiff’s title was better than theirs; also that defendant entered upon the land, and claimed it as his own by title derived from one of the devisees; and that Peter Byers wished to buy out the plaintiff. Objected to on part of the defendants. The objection was sustained by the Court, and exception on part of the plaintiff. The date of the conveyance to the defendant, was 26th January, 1847.</p> <p>Knox, J., charged that in this case, the deed under which the plaintiff claims, having been excluded upon the ground that if received it would not vest a title in the plaintiff, upon which there could be a recovery in ejectment; the jury, therefore, are instructed to return a verdict for the defendants.</p> <p>It was assigned for error: 1. The Court erred-in rejecting the deed from Elisha Mounts to David Beatty, on the ground that if received it would not vest a title in the plaintiff, upon which he could recover in ejectment; also the offers of the plaintiff, to prove that defendant claims under a purchase of the interest of one of the legatees under the will of Wm. Kiers, and that defendant took possession of the land in dispute, in pursuance of said purchase.</p> <p>2. In not permitting the plaintiff to prove that defendant admitted that plaintiff’s title was better than his, that plaintiff went upon the land and claimed it by title derived from one of the devisees of Wm. Kiers, deceased, and that Byers wished to buy him out.</p>

Thomas Button, the plaintiff in error, was the plaintiff in an action of ejectment brought against William Hesson, to recover the possession of an undivided tenth part of a piece of land situate in New Sewickly township, Beaver county, containing 45 acres or thereabouts. The cause was tried at June Term, 1850, and a verdict and judgment rendered in favor of the defendant.

<p>Error to the Common Pleas of Indiana county.</p> <p>E. P. Emerson had brought suit against R. B. McCabe, surviving Lucius Hull. It was an action of debt on a promissory note for $1259.11, having a credit of $57 endorsed on it. Verdict -was rendered for the plaintiff for $400. A writ of error was sued out by Emerson, the plaintiff, to October Term 1849, and at that term, the judgment below was affirmed in the Supreme Court. After this affirmance, this writ of error was sued out by McCabe the defendant. In support of the writ the Act of 22d March, 1850, was referred to. The second section of that Act is as follows :</p> <p>Sect. 2. “That no Act of the legislature of this Commonwealth heretofore passed, shall be so construed as to prevent either party in a cause from obtaining his, her, or their writ of error and a decision by the Supreme Court thereon, as well after a decision by the said Court on a writ of error previously obtained by the adverse party in such cause, as if both parties had obtained their respective writs returnable to the same term/of the Supreme Court; and that any writ of error heretofore taken under such circumstances and not yet acted on, shall entitle the plaintiff in error to a hearing and action of the Supreme Court thereon, as fully as if no former decision had beent made on a previous writ of error obtained by the adverse party.” See Acts of 1850, 230, 231.</p>

<p>A defendant in an execution in the hands of a constable, sold a mare to the plaintiff, a part of the price was paid to the constable, who knew of the sale, in discharge of the execution, and the purchaser received possession of the mare. After retaining possession for more than five weeks, the purchaser lent the mare to the previous owner for a special purpose, and whilst in ’his possession it was levied on, on another execution against him, by the same constable. It was held, that the voluntary sale of the animal was not a legal fraud, but if actual fraud had been alleged that question should have been submitted to the jury.</p>

<p>One who subsequently married a female who had been prosecutrix in am indictment for fornication and bastardy, has no right to release the weekly allowance directed to be paid to the prosecutrix for the maintenance of the child. For such expenses she is but a trustee for the township and her child, and she can neither sue for or release them; neither can her future husband release them. — The child-bed expenses are her own, but her husband, after deserting her, cannot release them.</p>

This was an action on the case by William Morrow against Jacob Waltz, Jr., founded on an instrument as follows: “ April 29th, 1841. — Jacob Waltz, jr., do promise to pay unto William Morrow, the sum of $200, if said Jacob Waltz can get the salt well to do a good business; that salt well that Waltz and Morrow bought of Henry Taggart, in Jefferson county, Ohio, on Island Creek.

<p>1. Under the 17th section of the Act of 20th March, 1810, relative to justices of the peace, a transcript of a judgment obtained against a defendant intended to be forwarded to another county for proceeding thereon by scire facias on the judgment, may be given by a person in possession of the dochet of the deceased justice by whom the judgment was rendered, though not himself a justice of the peace at the time of giving the transcript.</p> <p>2. It was stated in the docket entry of the justice, that the summons was “returned on oath,” but without returning that it had been served: It was held, that the judgment rendered by the justice was not void, but merely irregular, and in a scire facias thereon was conclusive till reversed or set aside by a legal proceeding.</p>

<p>Error to the Common Pleas of Pile county.</p> <p>This was an action of ejectment, brought by Erasmus Morey and others against Samuel Herrick and others, for 528 acres of land in Benezette township, Elk county, being the north half of a tract surveyed on warrant No. 5482, granted to George Mead, containing 1056 acres, and known as the Ketland lot. The plaintiffs were the heirs at law of Leonard Morey, deceased, and claimed the land as such. Both parties, plaintiffs and defendants, claimed under the same title, viz., a deed in 1822, from the treasurer of Clearfield county, in which the land was then situated, to Iehabod Powers. The plaintiffs claimed that under the circumstances disclosed in the evidence, Iehabod Powers was but the trustee of the legal title, for their ancestor, Leonard Morey, as to the land in dispute, viz., the north half of the Ketland lot No. 5482. In 1822, the whole of the tract was advertised for sale by the treasurer of Clearfield county for taxes, and the plaintiff’s father, Leonard Morey, being unable to attend the sales himself, agreed with Iehabod Powers, that the latter should bid off the lot for their mutual benefit, under an arrangement that each should contribute half of the purchase-money and expenses, and own half the land. Powers did as requested. The custom then was, to give notes, payable at a future time, with security, for lands purchased at treasurer’s sale. Morey asked John S. Brockway, who was going to the sales, to sign the note with Powers, and he did so at the request of Powers. The note was found in possession of Morey, and produced on trial by the plaintiffs. Brockway signed the note at the request of both Morey and Powers. The note was under seal. Powers admitted that Morey had furnished his half, and even more, of the funds to pay the note, and afterwards, during the lifetime of Powers, and by his knowledge and consent, Morey paid half the taxes. The assessments given in evidence showed the one half of this lot to have been assessed to Morey and the other half to Powers for the years 1826, 1827, 1828, 1829,1830, and 1881. Subsequent to this, Morey and his heirs always paid the taxes on the north half of the lot, on the unseated list.</p> <p>Powers, during his life, declared, how they owned and how they had divided the land. He died in the fall of 1827, in the actual possession of the south half of the lot, in the observance of the original agreement, as declared by himself a few days before his death. Powers left no children, but had several brothers and sisters residing in the northern part of the state. In 1831, Joseph Chandler was in the neighbourhood, acting as the administrator of Ichabod Powers. Aug. 25, 1834, he procured a deed from the heirs of Powers for this tract of land, for $840. He permitted the land to be sold for taxes in 1836, and had it bid in for himself by Andrews, “to extinguish Morey’s claim,” as declared by himself. From this sale, Morey redeemed his half of the land. It was admitted, that Chandler conveyed the whole tract to Andrews in 1841. Andrews conveyed to A. S. Lippencott on the 31st of August, 1841. On the day preceding, viz., the 30th of August, A. D. 1841, Andrews had brought an action of ejectment against Reuben Lewis and Leonard Morey, in the Common Pleas of Clear-field county, -for the entire tract. The writ was served, and after the cause was at issue and had been twice on the trial list, it was discontinued by the plaintiff.</p> <p>The defendants were purchasers under articles of agreement from A. S. Lippencott, no deed having been given nor the purchase-money paid when this suit was brought.</p> <p>In the course of the trial, the plaintiffs offered to prove, by John S. Brockway, the declarations of Andrews, made before he owned the property, that he knew of the plaintiff’s claim to the land. This was objected to by defendant’s counsel; the evidence was rejected, and exception by plaintiffs’ counsel.</p> <p>Plaintiffs then gave in evidence receipts to Leonard Morey for the taxes on the entire lot for the years 1822, 1823, 1824, and 1825.</p> <p>A certificate from, the records of Qlearfield county, showing the assessment of this lot on the seated list, from 1826 to 1831, inclusive, the one half to Powers and the oth&r half to Morey.</p> <p>Receipts to Leonard Morey for the payment of the taxes on the north half of said lot for the years 1836, 1837, 1838, 1839, 1840, 1841, 1842, and 1843.</p> <p>Receipt for the redemption of half of this lot from the Treasurer’s sale of 1836.</p> <p>To affect the defendant’s vendor with notice, the plaintiffs offered a lease, dated April 1, 1840, for the north half of this lot, by Erasmus Morey, attorney in fact for his father, Leonard Morey, to Reuben Lewis. Offered in connection with evidence, that Erasmus Morey acted as agent for his father, then in Massachusetts, and also that the tenant went into possession in pursuance of it. To which offer, the defendant’s counsel objected. Evidence rejected, and exception by plaintiff’s counsel. This was the second bül.</p> <p>Plaintiffs then proved by E. O. Winslow, that Reuben Lewis occupied the north half of this tract two years in 1840 and 1841; and by R. C. Winslow, that Reuben Lewis occupied that improvement on this lot, under E. Morey; “he told me in 1842 or 1848 he rented it from Erasmus Morey.”</p> <p>On the part of the plaintiffs, various points were submitted:</p> <p>1. That a trust in real estate may be created and proved by parol declarations of the grantee, at the time and subsequent to the acquisition of the title.</p> <p>2. That if the jury believe from the evidence that Ichabod Powers purchased the land in question at treasurer’s sale, under the arrangement that he and Leonard Morey were to be joint owners of it, and to be at equal expense in the purchase and payment of taxes for the same, and that agreement was subsequently recognised and acted on in good faith by the parties, then Ichabod Powers was only trustee of the legal title as to one moiety for Leonard Morey.</p> <p>3. That if the jury believe Powers and Morey agreed on a division of the tract, and each took possession and occupied their respective portions according to it, although in parol, said division was good as between the parties to it and all claiming under them.</p> <p>4. That if the jury believe the respective owners of the. title, prior to their respective purchases, had each sufficient notice of the claim of Morey to put a prudent man upon inquiry as to what it was, they are to be held as purchasing subject to whatever title Morey had.</p> <p>5. That from all the evidence in the case the plaintiffs are entitled to recover.</p> <p>Buffington, J., answered as follows: — “1. A trust estate created and proved by parol alone, is within the statute of frauds and perjuries, unless it be a resulting trust, arising from the fact that the money was furnished and paid by the cestui que trust; but if a purchase be made by a man who takes the title in his own name, and pays the money out of his own pocket, or agrees to pay it, his declarations, made at the time and subsequently, that he purchased for another, are within the statute and void.</p> <p>“ 2. If the jury believe the facts stated in this point to be true, they would amount to an agreement by parol that Morey would be entitled to one-half the property, and if there were evidence clear, unambiguous, distinct, and definite of the contract, accompanied by clear evidence of the payment of one-half the purchase-money by Mr. Morey, and also followed up by the taking of possession on the part of Morey, in pursuance of the agreement and the making of valuable improvements, then it would be enforced in equity; but the facts stated in the point, unaccompanied by evidence of the taking possession and improvements, would be within the statute of frauds, and whether trustee or purchaser is not material.</p> <p>“ 3. The law is correctly stated in this point.</p> <p>“4. This point is answered in the affirmative, with some explanations. If Chandler had no notice, then the subsequent purchasers, though they or any of them knew of the outstanding equity, would take his title discharged of the trust. If Chandler had notice, either of the subsequent purchasers, Andrews or Lippencott, if they purchased for a valuable consideration without any notice, would take discharged of the trust.</p> <p>“ 5. We cannot answer this point as requested.</p> <p>“ Another point has been raised by defendant’s counsel, which, as the cause may undergo a revision, it is proper to notice. It is contended that Chandler and those claiming under him are purchasers of the legal title for a full and valuable consideration without notice of the trust in Morey. Notice may be either actual, legal, or constructive. As this trust rested in parol, it was not susceptible of being recorded, and, of course, there was not legal notice. Constructive notice may be where the holder of the equity is in the actual possession, and the law imposes the duty on a purchaser, to inquire by what authority he is there. The only evidence of possession prior to the purchase by Chandler was the small improvement by Erasmus Morey, partly on the Potter tract and a small portion on this tract, some time prior to the time Powers took possession. This improvement, according to the testimony of E. C. Winslow, had been abandoned before 1827, was grown up with bushes, the fences down, and nothing of a building left but the remains of an old pig-pen. And so it remained till the time of the purchase by Chandler in 1834. This would not be sufficient to put a purchaser on inquiry and affect him with constructive notice. There was nothing in his position as administrator to affect him with notice, and there was no evidence of his having actual notice prior to his purchase from the heirs. He, Chandler, is to be viewed as a purchaser without notice. That Andrews had notice, is probable, and there is evidence to prove the fact. But Lippencott, who bought from him for $1000 on the 31st Aug. 1841, seems to have had no knowledge of the Morey claim until informed of it by Winslow at Harrisburg. This, as actual notice, would be insufficient, as coming too late, and by a person whose information he was not bound to regard. Lewis, it is true, was in possession about the time Lippencott purchased, but whether before or after, or under whom, is left so uncertain that it would not amount to constructive notice.</p> <p>“ Chandler and Lippencott being therefore purchasers bond fide, for valuable considerations, without notice of the Morey claim, would take the legal title discharged of the alleged trust.</p> <p>“ Viewing the case, then, as we do, as an application to a Court of Chancery to enforce the execution of a parol agreement after a lapse of upwards of twenty-five years, and near twenty years from the death of the purchaser of the legal title, and several years after the death of the alleged cestui que trust, wherein his heirs seek to recover from the defendant, after it has come to him through the hands of at least two purchasers for valuable considerations without notice, we are of opinion, and so instruct the jury, that the plaintiffs are not entitled to recover, and the verdict ought to be for the defendant.”</p> <p>Error was assigned to the rejection of the evidence as to Andrews’s declarations; and to the rejection of that referred to in the second bill of exceptions.</p> <p>3. The Court erred in their answers to the 1st, 2d, and 5th points put by plaintiff’s counsel.</p> <p>4. The Court erred in their general charge in saying that the evidence in the cause “ did not make such a case as is excepted from the statute.”</p> <p>5. The Court erred in saying in effect that the title became complete in Powers to the whole tract on his receiving the deed and giving his note with Brockway for the purchase-money.</p> <p>6. The Court erred in instructing the jury that under the evidence the plaintiffs were not entitled to recover.</p>

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action of assumpsit brought by Benj. F. Smith against Patrick Falconer, to recover the amount due upon three promissory notes of $500 each, made by Falconer July 26, 1848, and payable to Smith or order. The notes were given for machinery for a woollen factory purchased by Falconer from Smith. The pleas were non assumpsit, payment, failure of consideration, with leave, &c.</p> <p>On the trial of this cause, December 5, 1850, the plaintiff, in support of the issue on his part, offered in evidence a promissory note, signed by Falconer, dated July 26, 1848, for $500, payable with interest on July 1, 1849, to the said Smith, or his order, and endorsed in blank by said Smith. To which evidence the defendant objected because of the endorsement. The Court overruled the objection, received the evidence, and the defendant excepted.</p> <p>In the further trial of this cause, the defendant proposed to prove that at the time of the contract for the purchase of the machinery, which formed the consideration of the notes, and prior to the giving of the notes, the plaintiff warranted the same to be of a certain character and quality. To such evidence the plaintiff objected because no notice of such special matter of defence had been given by defendant, although notified to do so according to rule of Court. The Court overruled the evidence, and said: It appears by inspection of the record, that the defendant’s plea is “ non assumpsit, payment, failure, and want of consideration and that on the 13th of November last, the plaintiff notified him that notice of special matter, under rule 82 and 83 of this Court, was required, which defendant omitted to give ; hence, he cannot be permitted to give any special defence that could not be made under our practice under the general issue of non assumpsit. It is a rule in pleading, that matter of evidence of the character of a confession and avoidance must be pleaded specially. The question then arises, can defendant, under the general issue, give in evidence a distinct and separate bargain, and made at a different time between the parties, by way of defence. It is believed he cannot. He may give a failure or want of consideration, because that is good under the issue of non assumpsit, for if there was no consideration, there was not in law any assumption. But a distinct contract of warranty made at another time than that of the one sued upon, to constitute a defence, must be pleaded.</p> <p>Church, J., inter alia, charged that the polish of the machinery, unless a material, substantial defect, something more than a mere matter of fancy, would not alone entitle the defendant to a deduction, except the polish was contemplated by the parties at the time of the original contract, at the time of purchasing and giving the notes, and so forming a part of the consideration thereof; in that event it would be otherwise.</p> <p>Verdict was rendered for the plaintiff.</p> <p>Error was assigned to the admission of the note.</p> <p>2. The Court erred in rejecting the evidence mentioned in the second bill of exceptions: Chitty’s Pleadings, 510, 513 ; 4 Ser. & R. 249, Heck v. Shener; 5 Ser. & R. 394, Kennedy v. Ferris, et al.; 10 Barr 43, Gaw v. Wolcott.</p> <p>3. The Court erred in charging the jury that the polish of the machinery, unless a material, substantial defeat, something more than a mere matter of fancy, would not alone entitle defendant to a deduction from the amount of the notes, &c.</p>

<p>1. To constitute a trust as to real estate where one purchased professedly for himself and others, there must have existed a previous agreement on sufficient consideration to purchase in trust, or the purchase-money, in whole or in part, must have proceeded from the person setting up the trust:</p> <p>Therefore, where land had been sold for taxes after the death of the owner, and a person, in the next year after the sale, falsely represented to the purchasers that he was one of the heirs of the deceased owner, and desired to redeem the land for the heirs, and accordingly procured a deed from the purchasers: it was held, in the absence of a previous agreement to purchase, made on sufficient consideration, no money having been furnished to the grantee for the purchase, and the heirs having a sufficient time after the -conveyance to redeem, that they were not entitled to the possession of the land against the said grantee.</p> <p>2. The transaction referred to, was not a redemption of the land, but was the purchase of the incomplete title acquired by the vendee of the County Treasurer.</p> <p>3. A previous agreement to purchase in trust, or the fact that the purchase-money proceeded from the party setting up the trust, may be established by the oral declarations of the actual purchaser.</p>

<p>Error to the Common Pleas of Indiana county.</p> <p>This action of trespass was brought by Elias Baker against George S. King and others, to recover damages for an alleged breaking of plaintiff’s close, digging up and carrying away a large quantity of iron ore.</p> <p>The plaintiff claimed under a warrant to Wm. P. McKirnan, dated sixth August, 1844, and a survey made on said warrant, dated 10th of August, and 13th and 14th of Sept. 1844, for 59 acres, 137 perches, covering the land where the alleged trespass was committed.</p> <p>The defendants claimed under David Stewart, who took out a warrant for the same land on the. seventh of August, 1844. Applications to the land office for the warrant were prepared for both Stewart and McKirnan, on the 3d of August, 1844. Stewart had his made out in the morning, and McKirnan had his prepared in the evening of that day. Stewart entered a caveat against the acceptance of the McKirnan survey, alleging that the right to the land was vested in him by virtue of an actual settlement, commenced about the year 1822, but his warrant was not mentioned. On the 2d of March, 1846, a decision of the “Board of Property” was made in favor of the acceptance of the McKirnan survey, and on the 5th of December, 1846, McKirnan conveyed his interest in the land to Elias Baker, the plaintiff, and upon this title Baker sought to recover.</p> <p>The defendants resisted the plaintiff’s recovery, on the ground that the right to the land was vested in them by an actual settlement made at an early day; that they had purchased this claim from a certain Samuel Mizener. They also offered in evidence, the warrant to David Stewart, dated 7th August, 1844, for fifty acres of land, adjoining other lands of Stewart bought from Samuel Mizener, land of Thomas Clark, Catherine and John Davis, unimproved. The warrant was endorsed, executed, and came to hand 29th August, J844, and was surveyed by Robert Magee, Deputy Surveyor; on the 15th and 16th of December, 1848, to King and Shoenberger, for 49 acres and 24 perches. They proved a sale by Steioart to the defendants of the land in dispute, on the 20th Nov. 1846. The defendants further showed the record of an action of ejectment, brought by David Stewart against William D. Mc-Kirnan and Elias Baker, in the Common Pleas of Indiana county, issued 3d of April, 1846, which was served on McKirnan 3d July, 1847.</p> <p>The plaintiff’s counsel offered the duplicates of Brushvalley township in evidence, to show that Mizener, under whom the defendants claimed, for the years 1837, 1838, 1839, and 1840, returned to the assessor for taxation, only 110 acres of land, and for the years 1841, 1842, and 1843, 262 acres, and for the year 1844, 250 acres, which was transferred from Mizener to David Stewart. It was alleged that the whole survey, including the improvement and the part on which the warrant was laid, contained 325 acres, and allowing the 250 acres transferred by Mizener to Stewart, to be held by improvement, it left a sufficient quantity of land outside of this 250 acres to be appropriated by the McKirnan warrant, without interfering with the Mizener improvement. This position was sustained by the description given by Stewart in his warrant of the 7th August, 1844, as he described the land in the warrant as adjoining other lands of him the said Stewart, purchased from Samuel Mizener. From these facts, it was contended, that Stewart could not hold this land, by virtue of the Mizener improvement, as well as from evidence, showing, that at the time McKirnan made his survey, Mizener, who was along with the surveyor, showed his lines, and that the land from where the ore was taken, was not within his claim.</p> <p>The evidence further showed, that at the time McKirnan was taking out his application for the land in dispute, he was told that on that day Stewart had taken out an application for the same land, and that he was ahead of him, and his would be of no avail. McKirnan replied that he would try and get to the land office before Stewart, and get his warrant first, which he did. On this point, which was the subject of the third proposition submitted on .the part of the defendants, Knox, J., instructed the jury, if they believed that Wm. D. McKirnan, at the time he made his application, knew that David Stewart had already made an application for the same land, that he, McKirnan, acquired no right by his application, in hastening to the land office with his papers, in advance of Stewart. The evidence did not show that McKirnan had any knowledge of Stewart making an application for this land, until he, McKirnan, went to make his own application, and he was then told, that on the same day Stewart had an application prepared for the same land.</p> <p>To the fourth point submitted on the part of the defendants, the Court instructed the jury, that the warrant in the ñame of Stewart was a descriptive warrant, and gave title from its date, and the circumstance of no survey being made thereon for four years, would not invalidate the title or right acquired under said warrant; and more especially, if the jury find that the warrantee had actual possession of the land described in the warrant, and exercising acts of ownership over it.</p> <p>The Court further instructed the jury, that if the defendants were in actual possession at the time the ore was dug, they were entitled to a verdict without regard to title. If they were not, then the possession would follow the title, with regard to which we have given specific instructions in our answer to the defendants’ points.</p> <p>The second point submitted, and the answer was as follows :</p> <p>“If the jury believe that the plaintiffs were not in actual possession of the land in dispute, at the time of the alleged trespass, but that the defendants were in possession thereof, using the same, and claiming to be the owners thereof, then the plaintiff cannot maintain this action.”</p> <p>This point is substantially correct. The plaintiff must show, in order to sustain his action, that he was in the actual or constructive possession of the land in dispute. If the plaintiff was the l-ightful owner of the land, and there was no adverse possession, he would have sufficient possession to enable him to maintain trespass, even although he may not have been in the actual occupancy of the tract; but if there was at the time such adverse possession existing-in the defendants, then this action cannot be sustained. Whether there was such adverse possession, is a question for the jury. Was the land in dispute embraced in the Bracken claim ? Did Bracken or Mizener sell it to Stewart, and Stewart to King and Shoenberger, and were they using it under the claim of title ? If so, they must be considered as having the actual possession; but if it was not so transferred to them, a mere entry upon the tract for the purpose of making roads, digging ore, &c., would amount to nothing more than repeated trespasses against the real owner, and would not destroy his possession.</p> <p>Verdict was rendered for the defendants.</p> <p>It was assigned for error that the Court erred in their answer to the second, third, and fourth points ; and in charging the jury that if the defendants were in the actual possession at the time the ore was dug, they were entitled to a verdict without regard to the title.</p>

This suit was brought by the School Directors of Luzerne district, against Moses B. Porter, before a justice of the peace, on the 21st of May, 1847. The claim of the plaintiffs was stated in the transcript of the justice to be for $75, money in the defendant’s hands as treasurer of said district, and interest from October 30,1845. A judgment was rendered in favor of the plaintiffs, from which judgment Porter appealed.

<p>Error to the Common Fleas of Q-reene county. .</p> <p>This was a suit by Ezekiel Clark against Jacob Ullery and others. At the instance of the plaintiff, arbitrators were appointed, who, on the 24th July, 1846, awarded in his favor $5632.50. Defendant appealed. On the 13th May, 1848, a verdict was rendered for the plaintiff for $321.50, upon which the Court directed judgment to be entered without costs.</p> <p>May 25, 1848. Exemplification of record entered on record in Washington county. Execution thereon -to No. 16, August Term, 1848, for debt, interest, and costs; to which sheriff returned “Receipt on writ, of plaintiff’s attorney, for debt, interest, plaintiff’s bill, and jury fee.”</p> <p>February 16, 1850. Upon rule to show cause, the Court directed judgment to be entered with costs, to which defendant’s counsel excepted.</p> <p>It was assigned for error:</p> <p>1st. That the Court had no authority to direct judgment to be entered with costs, its power over the judgment having been exhausted by the rendition of the former judgment.</p> <p>2d. That the court erred in directing judgment to be entered with costs, in as much as the plaintiff had acquiesced in the former judgment, by having the other costs of the case taxed — taking an exemplification of record — issuing an execution thereon, and collecting and receiving debt, interest, and costs.</p>

<p>Error to Common Pleas of Orawford county.</p> <p>This was an action of ejectment, brought by Robert and William Snodgrass v. Edward Dunden and Morris Dunden, to recover one hundred and twrenty-five acres of land, situated in Cussawago township, county of Crawford.</p> <p>The plaintiffs below claimed title to the land in controversy, under a sale made by the treasurer of Crawford county on the 8th day of June, A. D. 1840, for taxes assessed in the year 1839.</p> <p>The land in the possession of the defendants below, was a part of a larger tract of four hundred acres, surveyed upon a warrant in the name of Louisa Gibson, dated May 30, 1792, and patented to Wm. Powers by patent bearing date March 21, 1799. The said tract of land was numbered 624 in the patent, and so designated on the maps of the county of Crawford, and in the assessments of said county from the organization of said county. Two hundred acres of said tract was conveyed by William Powers the patentee, to William Powers, Jr., by deed bearing date November 28, 1826, described in said deed as a part of the “ Louisa Gibson tract, No. 624;” and the said Wm. Powers, Jr., by deed bearing date April 18, 1835, conveyed one hundred and forty acres, part of the said two hundred acres, to J. Stewart Riddle, Esq., describing the same as a part of tract No. 624, &c., which one hundred and forty acres is the same land in the possession of the plaintiffs in error, who hold the same under J. S. Riddle, Esq.</p> <p>The land claimed by the plaintiffs below, was described in the assessment, sale list, advertisement, and treasurer’s deed as No. 18, Cussawago township, containing one hundred and twenty-five acres, the property of William Powers. There is a tract of land in said township which has for the last twenty years been designated upon the maps and assessments of said county by number 18, but never owned by Powers.</p> <p>On the part of the defendants below, it was contended that an assessment of tract No. 18, so entered in the sale list* advertised, sold and conveyed by the treasurer by that description, conveyed no title to the purchaser to any part of tract No. 624, notwithstanding thé assessor might have intended to assess part of tract No. 624, but without giving notice to the owner of such intention.</p> <p>The plaintiffs below gave in evidence a patent from the Commonwealth to William Powers, dated March 21, 1799, for four hundred acres of land, No. 624, in Crawford county, warrantee Louisa Gibson. The duplicate for Cussawago township for the year 1838, No. 624, 125 acres, owner William Powers, valuation $281.</p> <p>Duplicate for the year 1839 of the same township.</p> <p>No. of Tract, 18.</p> <p>Acres, 125.</p> <p>Yal. 281.</p> <p>Owner, Wm. Powers.</p> <p>Tax. $2.34</p> <p>Sale list read as follows:</p> <p>Owner, Wm. Powers.</p> <p>Tract No. 18.</p> <p>Tax, S. & C. 1.12.</p> <p>Road, 2.81.</p> <p>Total, 3.93.</p> <p>Sold June 8, 1840, to A. S. Ross, for $130. Ross assigned to the plaintiffs.</p> <p>James Still was examined. I was the assessor for Cussawago township in the year 1838. I supposed at that time the Powers or the Louisa Gibson tract was the 3d tract south from the Erie county line. The unoccupied part of it I assessed to Wm. Powers. In looking ovér the duplicate sent to me, I discovered that Wm. Powers was not assessed with any land in the township, and I assessed the unoccupied part to him. I did not see Powers, nor did I ever say anything to him about it. He further testified: when I assessed in 1838 I could not tell what lands were assessed, and for my own benefit I drew a small draft so as to know when Í had all the land assessed. There were numbers mentioned on the duplicate by which to assess — 622 the same as No. 6 of mine; 7 same as 623. I left off all the old numbers, and noted my alterations 18 as 624, and so returned. What was 18, the Uhler tract, is the same which I made 30. * * * I did not communicate the change I made to either Mr. Riddle or Powers.</p> <p>Points were submitted on part of defendants, viz.</p> <p>1. It is essential to the validity of a sale of an unseated tract of land for taxes, that it should be so described as to lead the owner to a knowledge of the fact that it is his land which is assessed and about to be sold.</p> <p>2. The number of a tract of land returned into the land office with survey, in connection with the name of the warrantee, and designated in the assessments of the township where the land is located by that number, is the best evidence of description, and must prevail over an assessment and sale by any other number.</p> <p>3 If the jury believe from the evidence that the land in controversy was surveyed upon a warrant in the name of Louisa Gibson, and was numbered 624, and a patent issued for the tract so numbered, and the tract has been so designated in the assessments o£ the township, and assessed by No. 624 for fifteen years or more previous to the sale for taxes; and that no part of said tract has ever been designated by any survey, draft, or map, as No. 18; that the assessment of tract No. 18, and the sale by county treasurer by that number, conveys no title to tract No. 624, nor any other part thereof.</p> <p>Church, J. — The Court assent to defendant’s first and second points as abstract principles, subject, however, to qualification or explanation in their application to the case as presented by the evidence. The assessment, together with the evidence of the course or current of title and change of description, as proved in the testimony of the assessor, and the manner of it, appearing on the assessor’s return, were of a character legally sufficient to lead an owner desirous of finding out on what land he should pay his taxes. The legal effect of evidence is a matter of law for this Court; its truth or strength is for the jury. In relation to this character of land — warranted land — it is generally necessary only to shew it to be the same land that was assessed, it being of little importance usually how the land is described in the assessment.</p> <p>The number of the tract is arbitrary with the owner or assessor, being made generally for convenience. Any other description will be sufficient, provided it evinces the fact of the actual'assessment of the land, or leads to evidence of it.</p> <p>The third point is incorrect. For if you find that William Power owned the land in dispute, and while he was such owner it was assessed in his name for more than fifteen years prior to the sale, and up to the assessment on which the sale was effected, it certainly afforded some evidence from which the then owner, knowing from or under whose name he held and claimed title, could ascertain upon what land to pay his taxes; and if the land in dispute be the same land assessed, although with another description also, it made the land debtor for the taxes and subject to sale. And the only question for you is whether the land in controversy is the same that was assessed for taxes of 1839, for which it was sold in 1840, and whether the plaintiffs are invested with that title. If the affirmative be found, then the plaintiffs are entitled to recover.</p> <p>Reference was made to 6 W. & Ser., Thompson v. Fisher; 16 Ser. & R., Luffborough v. Parker; 4 Watts, Burns v. Lyon.</p> <p>It was assigned for error: That the Court erred in their answer to the defendant’s first, second, and third points, and in their charge.</p>

This was an action on the case by Jacob Stoner v. Kimmel and others, they being the President and Managers of the Somerset and Bedford Turnpike Road Company. Certain shares of stock, viz. 672 shares, in the said company, which belonged to the Commonwealth, were advertised for sale at Harrisburg, on the 24th November, 1842.

This was an ejectment by George S. King & Co., against J. Adam Trefts and J. John Trefts, to recover a tract of land containing 160 acres. C. Horner had been the owner of the land in dispute. On the 12th February, 1846, Horner entered into an article of agreement with J. Adam Trefts for the sale of it to him. This purchase, the plaintiffs alleged, was in trust for Geo.

<p>In a scire facias on a mechanic's claim, where the defence was that the same was not filed in proper time, there having been a cessation for above one year in the work after part of it was done and before it was completed, and some evidence that the claim was filed in time having been given, it was error in the Court to instruct the jury that, under the facts of the case, the time for entering up the lien had expired when the claim was filed, and that the verdict ought to be for the defendants: It should have been submitted to the jury whether the work last done was done under the original agreement, without unreasonable delay, and with the consent of the owners, or whether it was done under a distinct contract.</p>

On the 4th of January, 1847, Connell Boyle and John Boyle executed to Robert Grant three several promissory notes for the following sums, viz., one for $83.61, another for a similar amount, and the third for the sum of $27.04, each being payable to the order of Grant one day after date; and on April 18, 1849, they executed three other notes, which were for $75 each, and payable one day after date.

An action of debt on book account for goods sold, was brought in the name of Daniel Canon and John A. Rooney, late partners under the name of John A. Rooney k Co., for the use of James F. Canon against A. Hamilton Campbell. Pleas, payment, and payment with leave and set-off. The book account was that of Rooney k Co. against Campbell the defendant.

This was an action of ejectment by Samuel J. Donaldson, as executor of the will of Samuel Johnston, deceased, v. Henry Phillips and Samuel Rayle, to recover a tract of land in Greene county, Pennsylvania, containing 400 acres. The main question involved related to the sufficiency of proof of the execution of a deed, executed in Maryland, and conveying, inter alia, the land in dispute, situate in Pennsylvania. The land was patented on 15th June, 1787, to Isaac Sidman.

<p>1. Occasional acts of drunkenness will not constitute the person an habitual drunkard, but it is not necessary that he should constantly be in an intoxicated state: a fixed habit of drunkenness will constitute a person an habitual drunkard.</p> <p>2. If a person be found by an inquest to be an habitual drunkard, it is not necessary for them, to find that he is incapable of managing his estate; such incapacity is a conclusion of law. The Act of 13th June, 1836, relating to lunatics and habitual drunkards, is precautionary in its design; a disposition of mind or body which might lead to the waste of an estate, is sufficient to justify the enforcement of its provisions.</p>

<p>1. One of two guardians remains liable for assets which were once in his hands, but which he had voluntarily delivered over to his co-guardian.</p> <p>2. One of two guardians having assets of his ward in his hands, being about to remove, delivered to his co-guardian the property in his hands. He subsequently joined with his colleague in the statement of a guardianship account, and the latter afterwards became insolvent: On a petition for review, it was held that the former was liable for the balance due the wards.</p>

<p>1. An administrator de bonis non with the will annexed has no power in Pennsylvania, under the 67th section of the Act of 24th February, 1834, relative to executors and administrators, or otherwise, to execute a trust, reposed in executors under a will, not connected with the office of executor, but reposed in them as trustees.</p> <p>2. Where a person domiciled in New YorJc, in his will authorized his executors to sell certain lands in Pennsylvania, not for the purpose of paying debts, but upon certain trusts, some of which were for investment and accumulation and eventual distribution between the devisees, this was not such a power as could be exercised by an administrator de bonis non with the will annexed appointed in Pennsylvania, even though the latter was appointed upon the renunciation of the executors so far as the estate in Pennsylvania was concerned.</p> <p>3. The renunciation of the executorship and trust so far as the lands in Pennsylvania were concerned was void, and did not make room for a separate administration in Pennsylvania of any part of the will.</p> <p>4. The 67th section of the Act of 24th February, 1834, puts an administrator-with the will annexed on a footing with a surviving executor, but not on a footing with a testamentary trustee.</p>

<p>1. The Act of 17th April, 1843, to prevent preferences in assignments, does not invalidate assignments in trust for creditors which direct preferences; the preferences are forbidden except in favor of labourers, but the assignment is operative for the benefit of the other creditors generally.</p> <p>2. The validity of a voluntary assignment of personal estate in trust for creditors, is to be determined by the law of the place of its execution : Therefore a voluntary assignment made in New York, of personal estate in Pennsylvania, which is valid by the laws of New York, will operate to pass to the assignee the property in Pennsylvania assigned thereby.</p>

<p>The city of Pittsburgh is not liable for consequential damages done to a lot of ground in the said city, and to a church thereon, by cutting down one of the streets in consequence of an alteration of its grade after the church was erected; the city, by its charter, having power to improve, repair, and keep in order the streets, and no remedy being given by Act of Assembly for such an injury.</p>

<p>1. A recognisance in the Orphans’ Court is subject to the legal presumption of payment after twenty years from the time the money due under it is payable ; but such presumption is liable to be rebutted.</p> <p>2. Within twenty years after a recognisance in the Orphans’ Court for land taken at the appraisement became payable, two writs of scire facias were issued upon it; and after the twenty years, nonsuits were entered upon them, under an agreement with the counsel of the recognisor, that if other suits for the same parties on the same recognisance were instituted within one year, no other presumption of payment should arise than would exist if the second suits had been instituted when the first were brought. Within the year, two other writs of scire facias on the same recognisance for the use of the same parties, were issued; a verdict was subsequently rendered for the plaintiff in the one case, and a judgment by confession was afterwards entered in the other, to be taken off if the judgment in the first case were reversed. The first was however taken up, and was affirmed. Two days before the verdict, three judgments were confessed by the recognisor to three other creditors not interested under the recognisance: It was held, that the recognisance itself— the agreement, the suits pending when the three judgments were entered, the verdict and judgment and affirmance of it, all showed that the recognisance was not paid when the three judgments were confessed, and that the plaintiffs therein had sufficient notice of its non-payment, — and that thesaidjudgments, in the distribution of the proceeds of sale of the premises taken at the appraisement, must be postponed to the judgments under the recognisance.</p>

<p>By the 7th section of the Act of 12th March, 1830, the Commissioners of the District of Spring Garden in the county of Philadelphia, were authorized to cause Broad street from Callowhill street to the Ridge Road, to be payed, the expense thereof to be assessed on the owners of lots bounding thereon, in proportion to their respective fronts, without any application for such improvement having been made by a majority of the owners of lots on said street.</p>

<p>Error to tbe Common Pleas of Bucles county.</p> <p>This was a proceeding by Abraham Sackett, administrator of the estate of Joseph L. Sackett, deceased, v. Abbott C. Twining.</p> <p>It wras a scire facias guare exeeutio non on a judgment in favor of Abraham Sackett, administrator of Joseph L. Sackett, deceased, against Abbott C. Twining, to recover the sum of $367.32, due upon the judgment. Abraham Sackett, as administrator of Joseph L. Sackett, deceased, in pursuance of an order of the Orphans’ Court in proceedings in partition, on the 28th of December, 1848 sold to Abbott C. Twining a tract of land belonging to the estate of said Joseph L. Sackett, deceased, containing seventy-two acres, three-quarters and nine perches, more or less, at $65 per acre. On the 2d of April, 1849, he executed a deed to Twining for the land; and Twining gave him the bond upon which this judgment was entered, for part of the purchase-money.</p> <p>The defendant, under the plea of payment with leave, &c., gave in evidence the following conditions of sale, and annexed acknowledgment of the purchaser, the defendant:</p> <p>“ The conditions of this sale, held this 28th day of December, A. d. 1848, on a messuage and tract of land situate in Wrights-town township, in the county of Bucks,'late the property of Joseph L. Sackett, deceased, containing seventy-two acres, three-quarters and nine perches, more or less, with the appurtenances, are such, to wit:</p> <p>“First. The property to be sold by the acre; and if the purchaser should wish to have it surveyed, it must be at his own expense.</p> <p>“ Second. Nine hundred and forty-three dollars and eighty-three cents to remain secured on the premises during the natural life of Eleanor Sackett, widow of Joseph Sackett, deceased, the interest thereof to be paid to her annually; and, at her decease, the said principal sum to be paid to the heirs of the said Joseph Sackett, deceased.</p> <p>“Third. Three hundred dollars of the purchase-money to be paid, or secured to be paid, at the close of the sale. One-third of the whole purchase-money, of which the above three hundred dollars to be a part, to be paid on the first day of April next, when title will be made and possession given. The remainder of said purchase-money to be paid on the first day of April, A. D. 1850, with the exception of the sum that must remain secured as a dower to Phebe Sackett, widow of the said Joseph L. Sackett, deceased, which will be one-third of the whole purchase-money, after the above-named sum of nine hundred and forty-three dollars and eighty-three cents is deducted, which must be secured on the premises by bond and mortgage, during the natural life of the said Phebe Sackett, and the interest thereof to be paid to her annually. The balancé of said payment to be also secured on the premises, with interest, &c.</p> <p>“Abraham Sackett, administrator.”</p> <p>I, Abbott Twining, &c., do hereby acknowledge myself the purchaser of the foregoing mentioned property, at the sum of sixty-five dollars-cents per acre; and I hereby bind myself, my heirs, executors, and administrators, that I will faithfully comply with the within conditions of sale, under the penal sum of four thousand dollars. Witness, &c. Abbott Twining, (l. s.)</p> <p>On the part of the defendant was given in evidence the deposition of Charles Thompson, who testified that in January, 1850, he made a re-survey of the land purchased, and that there was a deficiency of five acres and fifty-six perches; that the error was not in the old survey of the land, but in the calculation.</p> <p>The deed for the land was given in evidence. It was executed by Abraham Sackett, as administrator, &c.; it was dated April 2d, 1849, and conveyed to Abbott Twining the said tract of land as containing seventy-two acres, three quarters, and nine perches, more or less, for the consideration of $4732.40. In it reference was made to the proceedings in the Orphans’ Court in the partition of the real estate of the said Joseph L. Sackett, deceased, of which the said tract of land formed a part, to wit; The petition of the widow and heirs of the said deceased to the Orphans’ Court, for the appointment of seven persons to make partition of the said real estate; the appointment of the said seven persons for said purpose; that they returned the valuation of the said real estate; that the heirs of the said Joseph L. Sackett, deceased, severally appeared in the Orphans’ Court, and refused to take the said real estate, or any part thereof, at the valuation, and desired it to be sold; that the Orphans’ Court thereupon ordered the same to he sold, and issued an order to the said Abraham Sackett, as administrator of the said Joseph L. Sackett, deceased, to sell the s.aid real estate; that the said Abraham Sackett, as administrator of the said Joseph L. Sackett, deceased, in pursuance of the said order, sold the said tract of land to the said Abbott C. Twining on the 28th of December, 1848, and that the said sale was confirmed by the said Court on the 5th of Feb. 1849.</p> <p>The plaintiff’s counsel requested the Court to charge the jury that, under the evidence in this case, the plaintiff is entitled to recover.</p> <p>Krause, J., charged the jury, that if in this case the jury find that both parties mutually depended on the old survey, and were thus led into error as to the quantity of the land, it being sold by the acre, and a deficiency in the quantity existing equal in value to the amount claimed in the suit, the plaintiff was not entitled to recover.</p> <p>Plaintiff’s counsel excepted to the charge. Verdict was rendered for the defendant.</p> <p>The said instruction by the Court was assigned for error.</p>

This was an action by D. H. Mulvany against Isaac Kosenberger, on a warranty of a horse purchased'by the plaintiff from the defendant. The warranty was as follows: “ Received, June 6, 1849, of D. H. Mulvany, $130 for a black horse, six years old, warranted sound in all respects, and gentle in harness.” It was alleged on the part of the plaintiff, that the horse was neither sound or gentle in harness at that time, nor had he been for a considerable time before that.

This was a scire facias to revive the lien of a judgment entered in favor of Jesse Holt v. Joseph H. Bodey and Henry Bodey, Senior. Joseph H. Bodey and Henry Bodey, Senior, on the 1st day of April, 1842, executed a bond with warrant of attorney to Samuel Thomas, conditioned for the payment of $800 on 1st April, 1843, with interest.

This was a scire facias in the names of Thomas Ridgway, Henry Budd, and Rowland Kirkpatrick, trading under the firm of Ridgway, Budd & Co., to the use of Ridgway & Budd, v. Abraham Steiner, with notice to Henry Longaker, terre tenant.

On May 20,1850, upon petition, viewers were appointed; August 19,1850, report of viewers filed, laying out the road and returning a draft thereof; and August 22, 1850, the report was approved, and road ordered to be opened 83 feet in breadth; November 18, 1850, upon petition the Court appointed a jury to review said road; and at February sessions, 1851, the reviewers reported that there was no occasion for such road.

This was an action by Pierre Chouteaux et al. v. David Leech et al., trading as D. Leech & Co. This case came up from the Nisi Prius. It was an action for damages to certain packages of furs, shipped at Cincinnati, to be carried to New York. The furs were carried from Cincinnati to Pittsburgh in the steamboat Defiance, which ran upon a snag, and the furs became wet and were injured.

A petition was presented to the Quarter Sessions of Bucks county, for the appointment of viewers to lay out a road, commencing in the middle of the new Bethlehem road in Hilltown township, in said county, and terminating in a public road leading to Thomas’s tan-yard. Viewers were appointed, and on the 4th February, 1850, a report in favor of a road, signed by five of the viewers, was presented.

This was an appeal by Jacob Reed, jr., an execution creditor of Reed & Bixler, from the decree of the Court of Common Pleas of Schuylkill county, in the matter of the report of an auditor, appointed to ascertain and report the names of miners, laborers, and mechanics, with the amounts due to each respectively, claiming payment out of the proceeds of the sheriff’s sale of the personal property of Reed & Bixler, on the fi. fa. of Jacob Reed, jr., et al.; as well as to…

In the Court of Quarter Sessions of Montgomery county, Penn., on the 19th August, 1850, a petition was presented, signed by inhabitants of Lower Merion township, in said county, for a view to lay out a road “ Beginning at a point nine hundred feet northward of the dwelling-house of James Noblit, on a public road leading from the Schuylkill road to Bethel Moore’s print works, to a public road leading from Matson’s Ford road, past the Mount Pleasant school-house to the old…

<p>Error, to the Common Pleas of Montgomery county.</p> <p>Action by William M. Jacobs v. N. K. Haney.</p> <p>On the 17th of July, 1844, one William K. Haney died in Kent county, Maryland, seised of a grist and saw-mill and 80 acres of land, leaving a widow, a father, and six brothers and sisters, but no children. The above-named William M. Jacobs administered on his estate, and leased said property to one Erazer, from the 21'st of October, 1844, to the 31st of December, 1845, at $420 for the term, payable in two equal instalments; the first on the 1st day of August, 1845, and the other on the 25th of December, 1845. On the 26th of July, 1845, and before the said lease had expired, the property was sold by a trustee, under a decree of the Chancellor of Maryland, for the payment of debts, at which sale the said William M. Jacobs became the purchaser, at the sum of $2760, and gave bond as required by the said decree, with security to pay the same with interest from that date. It was alleged that when William K. Haney died the mills were in a state of dilapidation, and required considerable repairs. Repairs were made by Erazer the tenant, by order of said Jacobs. The amount of repairs which the tenant did amounted to about $300, which he deducted from the rent, and it was alleged that Jacobs applied the balance to pay for other repairs.</p> <p>Haney, the defendant in error, brought suit before a justice of the peace, and claimed to recover from Jacobs, the one-sixth of two-thirds of the said $420, allowing the widow one-third of the rent. Verdict for plaintiff for $18.</p> <p>On the part of the defendant in the suit, the following points were submitted:</p> <p>1. That the justice of the peace had no jurisdiction in this case, and the action cannot be maintained.</p> <p>2. -That the defendant himself was entitled to the rent which became due subsequent to the time of his purchase.</p> <p>3. That if the jury believe that the whole amount of Frazer’s rent was expended in repairs and taxes, then the plaintiff is not entitled to recover; and in no event can the plaintiff recover beyond his proportion of the rent, after the taxes and expenses for repairs are first deducted.</p> <p>4. That the widow is entitled to one-half of the rent which accrued after the death of her husband for the term of her life, and the father of the decedent is entitled to the other half for the term of his life, and the present action cannot be sustained by the plaintiff.</p> <p>5. That the defendant, if liable at all in this action, is liable only for the amount of money actually received by him, and not for what he might have received.</p> <p>The Court charged the jury as to the first point, that the justice had jurisdiction.</p> <p>The Court affirmed the second point, if Vickers, the trustee who made sale of the property, did not reserve the rent; but if he did, it is not true.</p> <p>The third point the Court said was true, if authority was given to make such repairs; but it is not true if such authority was not given to defendant.</p> <p>As to the fourth point, that this was dependent on the laws of Maryland. But, if the testimony satisfied the jury that the laws of Maryland' are otherwise, then this point is not true.</p> <p>To the fifth point the Court said, If defendant settled with the tenant for repairs, and allowed payment of them out of the rent, without authority, this point is not true. But, if he had authority to make or allow for repairs, it is true. The jury will determine the fact.</p> <p>The defendant excepted to the charge of the Court.</p> <p>The testimony of Vickers, who made sale of the property under the decree of the Chancellor, was taken, and he testified relative to the title to the rent under the laws of Maryland, and that one of the conditions of the sale was, that no part of the rent for the year 1845 was to go to the purchaser. The admission of that portion of his testimony was the subject of the first assignment of error; and the second was as to the charge that the justice had jurisdiction of the case.</p>

This was an action on the case brought by John Latour v. Smith, jr., Russell, and Blair, to recover damages for an alleged deceit, and also the amount of a promissory note alleged to have been drawn by William McMillan to his own order, endorsed by him, and held by Russell and Blair, two of the defendants below, by whom it was placed in the hands of Smith, the other defendant below, a merchandise broker, and by him passed to Latour, plaintiff below, in part payment for…

Ingersoll and Thomas Dunlap, trustees of estate of Charles F. Sibbald. Charles F. Sibbald having obtained a grant of land from the Governor of Florida in 1816, made two contracts with Samuel Grice in 1827 and 1828, permitting Grice, during three years, to cut timber on some of the lands for the construction of some vessels of war for the United States, and he obtained an advance of money from Grice on account.

This case came up from the Nisi Prius. It was a bill in equity, filed by Gideon Birdsall, and Palmyra his wife, and others, being of the half-blood to Nathan Dunn, deceased, for an account, &c., of moneys received by the defendants, Richards, Smith, and Brown, as trustees, from the interest of Nathan Dunn in the Laurel Hill Cemetery, on the ground that Nathan Dunn died intestate as to that interest.

This was an action on the ease by James M. Bennett v. Edwin Young, as endorser of a promissory note, as follows: Philadelphia, December 30, 1848. Six months after date, we promise to pay to the order of Edwin Young, six hundred dollars, without defalcation, for value received. [E. Young, House of Refuge.] [Signed,] Claridge & Rudolph. ■c , 3 Edwin Young. Endorsed, ^ M> Beí[HETT. On the trial, the note was given in evidence on the part of the plaintiff, and also the protest.

<p>Error to the Common Pleas of Montgomery county.</p> <p>This was an action of debt by Maria Engarman against Mathias Booz, on the official bond of the defendant, as constable. The bond was in penalty of $1000. The plaintiff in the suit being enceinte, made a complaint before a justice of the peace that one Hannan was the father of the child. The justice issued a warrant for the arrest of Hannan, which was received by Booz, as constable, who arrested Hannan, but the defendant escaped.</p> <p>The plea was nil debet, and payment with leave, &c. The jury rendered a verdict in favor of the plaintiff, and assessed damages at $100. “Yerdict fee paid, and judgment entered on the verdict.”</p> <p>There were various assignments of error as to the admission and rejection of evidence; and one assigned as to the mode of entering the judgment.</p>

the District Court, Philadelphia. This was an action of partition by Rachel P. Wetherill, against Charlotte W. Wetherill, and others. A case was stated, with leave to turn the same into a special verdict.

Error, to the District Court, Philadelphia. This was a proceeding by Jacob Steinmetz against the Bector, Wardens, and Vestrymen of St. John’s Church, in the township of the Northern Liberties, in the county of Philadelphia. It was an action of scire facias upon a mortgage, in which the defendant in error was plaintiff below.

<p>Error to the District Court, Philadelphia.</p> <p>This was a scire facias by'Williams and others against the controllers of the public schools of the first school district of Pehnsylvania, as owners or reputed owners, and John Lewis contractor; and was issued upon a claim filed under the Mechanics’ Lien Law for lumber furnished under a contract with Lewis, the contractor for the erection of the Roxborough public school building against which the claim was filed. For the controllers was pleaded non assumpsit, payment, set-off with leave, &c.; and further, that the plaintiffs ought not to maintain their claim, because the building described in the claim was contracted to be erected for the controllers of the public schools of the first school district of Pennsylvania, for the use of the people of the city and county of Philadelphia for public school purposes, and to be paid for out of the school fund held by the treasurer of said county, &e.</p> <p>To the first, second, and third pleas, replications were filed; and to the fourth a demurrer. The issues of fact were tried and verdict rendered for plaintiffs, and afterwards the Court entered judgment for the defendants.</p> <p>Error was assigned to the entering of judgment on the demurrer; also to the decision that the school-house in question was not the subject of a mechanic’s lien.</p>

This case came up on a certificate from the Nisi Prius. The money, part of which was in dispute, was raised by a sale on an execution on a judgment in favor of John Struthers v. Philip Peltz and Bichard Peltz.

Error, to the District Court, Philadelphia. This was an action of assumpsit in the name of Henry Lelar, sheriff, against Thompson Holmes. The suit was marked to the use of the City Bank of New Haven. The City Bank of New Haven held a judgment in the Supreme Court of this state against Holmes and Hubbard, and issued a venditioni exponas for the sale of certain real estate of one of the defendants.

This was an action of ejectment by Algernon S. Eoberts, Edward Roberts, and Henry K. Strong, against John Strimpfler, James Shoemaker, John A. Bechtel, and Jacob C. Bickelman, brought to March Term, 1851. ■Verdict was rendered for the plaintiffs.

These were appeals from the decree of the Orphans’ Court, Philadelphia. They were entered in the matter of the accounts of John Bacon, and Matthew L. Bevan (who survived Mark Richards), trustees of Mrs. Maria A. Hemphill.

Appeal by Weaver & Taylor, from the decree of the Court of Common Pleas of Chester county, distributing the proceeds- of sale of real estate sold by sheriff under writ of venditioni exponas-. Jacob Hobson, in March, 1849, agreed with William Walker for the purchase of real estate in New Garden, Chester county, and took possession in April of the same year.- He paid no money, but erected three buildings on the property purchased. Those buildings cost him from $2500 to $3000.

Benjamin Hallman, the plaintiff, sued Adam Hippie on the 29th day of November, 1848, in the Common Pleas of Montgomery county. Arbitrators having been chosen, an award was made February 26, 1849, in favor of the plaintiff for $1018.99, and filed the same day in the Prothonotary’s 'office.

This was an action of indebitatus assumpsit brought by Jacob O. Ewing, administrator de bonis non with the will annexed of John Cook, deceased, against John T. Lewis, administrator cum testamento annexo of William W. Oooh, deceased.

<p>Error to the District Court, Philadelphia.</p> <p>An action of assumpsit was brought by Samuel Hunt v. John Todd. The narr. contained the common counts. The general issue was pleaded.</p> <p>On the trial, plaintiff’s counsel gave in evidence a cheek of Hunt to Todd, on the Bank of Penn Township, for $2842 ffi.</p> <p>On his part, a check of Hunt to Todd, was offered also; it was as follows:</p> <p>“ Philadelphia, July 12, 1849.</p> <p>Bank of Penn Township, pay to John Todd, on the 12th day of August, or order, six hundred and forty dollars.</p> <p>$640.62 Signed, Samuel Hunt.</p> <p>Endorsed, John Todd.”</p> <p>This paper was objected to on part of defendant, as being no evidence of a debt due from defendant to plaintiff. The objection was overruled, and exception taken by defendant.</p> <p>Plaintiff’s counsel read in evidence, a paper to the effect that sundry persons who were named, were debtor to John Todd, July 12, to the amount, in the aggregate, of $647.09. The sum of $6.47 was deducted from the amount, leaving a balance of $640.62.</p> <p>“ Received of Samuel Hunt, his check at thirty days, for $640.62, amount remaining unpaid at the expiration of thirty days, shall be refunded by me.</p> <p>Signed, John Todd.</p> <p>July 12, 1849.”</p> <p>Defendant’s counsel then asked the Court to enter a nonsuit for want of evidence of any debt due and owing by defendant to plaintiff, which motion the Court overruled. The Court charged the jury, but reserved the point whether the plaintiff ought not to have proved that the amount mentioned in the bills were unpaid.</p> <p>Yerdict was rendered for plaintiff for $149.73; but the Court afterwards set aside the verdict, and entered a nonsuit.</p>

Price, and J. B. Townsend, executors of the will of Edward S. Burd, deceased, who was surviving acting executor of the will of Elizabeth Powell, deceased.

This was an action of replevin by Headley, as administratrix of the estate of Patience Kirby, deceased, against Ann Kirby, to recover from her the possession of a variety of clothing, a watch and chain, pencil case, tea spoons, trunks, a promissory note for $1600, a book of deposit in the Philadelphia Savings Fund Society, and articles of female wearing apparel, which had belonged to the deceased.

<p>'Error to the District Court, Philadelphia.</p> <p>This was an action on the case by Conway v. Conklin, to recover one hundred dollars, which the plaintiff had deposited with Conklin on a bet between Conway and another, as to the speed at which the “Lady Suffolk” had trotted.</p> <p>A witness was examined who testified as to the deposit; but it appeared that the parties to the bet had differed as to the mode of ascertaining the speed, and it did not appear in the case that the speed had been ascertained. The plaintiff, on three occasions, demanded a return of the money deposited by him. The second demand was made in Philadelphia. On the first demand no reason was given for the non-payment. On the second the defendant said that he would write to Boston, and have the track or race-course measured, and give the money to the winning party according to the surveyor’s answer. On the third demand the defendant said that he had been indemnified by the other party, and had given the money to him, admitting, however, that he had not 'written to ascertain the speed of the “Lady Suffolk.”</p> <p>On the trial, the defendant’s counsel asked the judge to charge that no action lies against a stakeholder in a bet, but against the winner only. The judge refused so to charge, and charged to the contrary.</p> <p>Yerdict was rendered for the plaintiff for $104.</p> <p>The refusal and charge were assigned for error.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was a proceeding by attachment execution by Heinrich Wiener against Davis & Hamersly, defendants in the judgment, and Pease and Seal, garnishees. The attachment was discontinued as to Pease before trial.</p> <p>In the fall of 1846, Davis & Hamersly, a firm in Philadelphia, became embarrassed. They sent round to their creditors a paper setting forth the amount of their liability; and, “ in order to obtain a full release from the liability aforesaid,” they proposed “ to transfer to Joseph H. Seal, or any other person whom the creditors may select, notes and book accounts amounting to” about the nominal value of T5 per cent, of their debts. Those creditors who should agree to this- were desired to sign this paper; and it was signed by thirteen creditors.</p> <p>On the 1st of December, 1846, three instruments were executed:</p> <p>1. An assignment by Davis & Hamersly to nineteen named creditors, pf certain scheduled property, and stipulating for a full release. The instrument appointed the creditors the attorneys of the assignors, with power to the creditors to appoint substitutes.</p> <p>2. A power of attorney from seventeen of those creditors to Joseph H. Seal, empowering him to collect these debts and distribute them, &c.</p> <p>3. A full release by those creditors to Davis & Hamersly.</p> <p>The assignment was recorded, but the instrument appointing Seal, and the release, were not recorded.</p> <p>Wiener, a creditor, who did not assent to these arrangements, obtained a judgment against Davis & Hamersly, on which he issued an attachment in execution against the property in the hands of Seal. On the trial, plaintiff proved the above facts, and requested the judge to charge that the above instruments were in fact but one; and inasmuch as they only transferred a part of the property of Davis & Hamersly, while they stipulated for a full release, they were in law fraudulent and void. The judge refused so to charge, and directed the jury to find for the defendants.</p> <p>This was assigned for error.</p>

This was an action of trespass brought by Michael McEadden, against Wm. W. Downing and others, for tearing down portions of the walls and scaffolding of a building which the plaintiff was erecting along the Philidelphia and Columbia Railroad, at Downingstown, Chester county. In order to lay the foundation of the wall, the plaintiff, without the consent of the Canal Commissioners or other authorized person, had the embankment of the railroad dug into.

This was an issue of devisavit vel non directed as to a paper, purporting to be the will of Jacob Harding, of Lancaster county. In the alleged will, Catharine Harding, the widow of the testator, and John Reinhold, were appointed executors. The issue was directed between Catharine Harding as plaintiff, and Peter Harding as defendant. The witnesses to the will were John Schlessman, and John-Harding. On the trial John Schlessman, one of the witnesses, was examined.

Error, to the Common Pleas of Lancaster county. This was an action of debt brought to November Term, 1850, in the name of the Commonwealth of Pennsylvania,, for the use of Christian Neff,- administrator of the estate of Nancy Neff, deceased, who was one of the daughters and heirs of Christian Shuman, deceased, against Elizabeth Shuman, and others, administrators of the estate of Christian Shuman, who was surviving recognisor in a recognisance in the Orphans’ Court, with…

<p>1. The date of a negotiable note being, when originally written, the 12th of August, was altered after its execution to the 13th: Held, that such alteration of the date, unless properly accounted for by the holder, vitiated the note.</p> <p>2. In a suit by the holder against the endorser of a negotiable note which had been discounted for the accommodation of the drawer, the latter, being released from liability over for costs, is a competent witness for the defendant to show that the date of the note which had been altered, was not altered when the drawer negotiated it, and consequently when it was endorsedalso, to show that the alteration had been made without the knowledge or consent of the endorser.</p> <p>3. In a suit by the holder against the endorser of an accommodation note discounted for the maker, the date of which appears from its face to have been altered, it is not sufficient for the holder to show that the date was not altered after he received it; in order to recover, it is necessary for him to show that the alteration existed when the defendant endorsed it, or that he assented to the alteration.</p> <p>4. An offer made by the endorser to renew the note after receipt of notice of protest, is not evidence of his knowledge of the alteration, no other proof of his knowledge or consent to the alteration having been given.</p>

This was an action of account render by Patrick Kelly v. John Kauffman. The parties had been partners in the purchase and sale of cattle. Most of the cattle had been sold; seventy-five of them to George Heller, who gave his note, payable to the firm, for $2863.77, dated 11th July, 1849, and payable in twenty days from date. On the 19th July, 1849, Kelly agreed to take the residue of the cattle at $28 per head.

Error, to the Common Pleas of Lancaster county. Dr. William Hayes brought suit against John D. Wilson. The summons, issued October 25,1851, was in case sur assumpsit, and was returnable 17th November. It was returned, “November 1, 1851, served on defendant by reading and copy.” November 12, counsel appeared d, b. e. for defendant. November 28, copy of plaintiff’s book entries filed.

This was an action of assumpsit by The Lancaster Bank against Samuel W. Woodward, to recover the amount of a check as follows : Lancaster, Dec. 14, 1848. Lancaster Bank pay to Samuel Hunt or order, on the 14th of January, 1849, six hundred dollars. $600. Samuel W. Woodward .

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of replevin by Martha Gamber v. Henry Gamber, to recover a one-horse carriage, of the value of $110. The property was delivered to the plaintiff, and the narr. was in the usual form for detaining the property.</p> <p>On the trial, it was shown that John Gamber, the husband of the plaintiff, in company with his wife, in the fall of the year 1848, went to the shop of Christian Landis, and after examining certain carriages, ordered Landis to make him one of a particular pattern, for the sum of $110. Landis made one, and delivered it to Gamber. Shortly afterwards, John Gamber died intestate, and at the time of the taking of the inventory, Martha Gamber, his widow, claimed the carriage as belonging to her, upon the ground that she had given her husband the money to pay for it. Upon this representation, it was not included in the appraisement by the administrators; hut upon a demand being afterwards made upon them by Christian Landis for the payment of the carriage, they paid for it. The estate proving insolvent, the administrators sold the carriage at public sale to the defendant below, for $60.</p> <p>Testimony was given that the deceased intestate, upon several occasions, when asked for the loan of the carriage, said, “ go and ask. the wife ; it is hers; she gave me the money to pay for it.”</p> <p>The omission of the carriage in the inventory being proved on the part of the plaintiff, it was offered, on part of defendant, to prove that no part of the personal estate which the plaintiff owned before marriage was included in it. This was rejected;</p> <p>The Court permitted the administration account on the estate of John Gamber to be given in evidence on the part of the plaintiff. This was objected to as irrelevant and calculated to mislead the jury.</p> <p>The cause was tried at January Term; 1852, when a verdict was rendered for the plaintiff</p> <p>Upon the trial, the following point was submitted by the counsel for defendant, viz.:</p> <p>“That as it appears from the testimony that John Gamber purchased the carriage in dispute on his own credit, and the same was delivered into his possession by the maker, and so remained without any apparent change in the possession till his death, and his estate is insolvent, his administrators acting as trustees for his creditors, had a right to retain the same against plaintiff; and as against them and the creditors the plaintiff has no right of property in the carriage, and the defendant is entitled to a verdict in his favor.”</p> <p>It was answered as follows:</p> <p>“ If you are satisfied from the testimony that John Gamber purchased the carriage in dispute, and retained the possession of the same in the manner set forth in the defendant’s point, and that John Gamber’s estate is insolvent, our answer then is, that his administrators, acting as trustees for his creditors, had a right to retain the same against plaintiff, and as against them and the creditors, the plaintiff has no right of property in the carriage, and the defendant is entitled to a verdict.”</p> <p>Long, J., charged the jury, inter alia, as follows:</p> <p>“ The Act of 11th April, 1848, relating to married women as regards their separate estate, places them in the samé situation as single women. They can make contracts with their husbands. If, therefore, there actually was a purchase made by the plaintiff from her husband — money actually paid to the husband — and in this case, if the estate was insolvent, possession delivered over to her, she would have a right to the carriage.</p> <p>“Several witnesses were examined on the part of the plaintiff, to show that the carriage in dispute was recognised by her husband as belonging to her, and also by his administrators since his death; that she was possessed of a separate estate, and that her husband acknowledged that it belonged to her; and that she gave him the money. On the other hand, it is shown that the carriage was paid for by her husband’s administrators after his death.. These are all facts for you to take into consideration in deciding upon this case, so far as regards the sale of the carriage. But if this estate has been proven to you to be insolvent, as it is alleged, then another question arises, and that is, had the plaintiff the open possession of this carriage.” He charged that if she had not the possession of the carriage during the marriage, she was not entitled to recover.</p> <p>Yerdict was rendered for the plaintiff in the suit.</p> <p>Error was assigned to the overruling of the evidence offered to show that no part of the personal effects which the widow owned before marriage, were included in the inventory. It was submitted, that as Gamber and wife were married before the Act of 1848, the evidence offered was competent to explain the fact that the carriage was not included in the inventory, and to avoid its influence as an act of the defendant.</p> <p>Error was also assigned to the permission to receive the administration account in evidence as irrelevant: also to the answer of the Court to the point submitted on part of defendant; and that the judge erred in submitting to the jury whether there was a purchase of the carriage originally, by the plaintiff with her own money, or a subsequent sale of it to her by her husband, and a reduction of it into her absolute possession.</p>

This was a suit depending in the Common Pleas on an appeal from the judgment of a justice of the peace. The suit was brought by Christian Rohrer against John Rohrer to recover $19.80 for making a division fence. Christian and John Rohrer owned adjoining improved lands; a lane had existed for above 24 years at one end of the farms occupied by them.

In August, 1851, a petition signed by above twenty persons representing themselves as citizens of Penm township, was presented to the Court of Quarter Sessions of Lancaster county, setting forth that they labored under inconvenience on account of residing in the most remote section of said township of Penn, at too great a distance from the place where the business of the township was usually transacted; and representing that their interests would be promoted by an alteration…

<p>1. An inquisition of partition or valuation of real estate, may be set aside where the jury have made a plain mistake of fact or law, or where fraudulent arts have been practised by an interested party to procure a report, or where the jury have been guilty of misbehavior. Inadequacy of price may be so gross as to be evidence of mistake or fraud, but the mere offer of one of the other heirs to give more for the property than the sum at which it was appraised, is not a sufficient reason for refusing to permit the eldest son to take it at the valuation, and for setting aside the inquisition.</p> <p>2. A valuation of the property by dividing the aggregate of the separate estimates made by the jurors is not illegal, it not appearing in the case that the jurors, before the estimates were made, had agreed to be bound by that result. See White v. White, 5 Sawle, 61-63.</p>

This was an ejectment brought on 6th August, 1844, to November Term, 1844, in the Common Pleas of York county, by heirs of Thomas B. Coleman, deceased, in which B. R. Alden and Ann his wife, Margaret and Sarah Coleman, William and Robert Coleman, heirs of Thomas B. Coleman, deceased, and John Reynolds their guardian, were plaintiffs, and Thomas Grove was defendant, for a tract of land in Lower Chaneeford township, York county, containing 40 acres more or less, adjoining…

<p>Error, to the Common Pleas of Lancaster county.</p> <p>This was a proceeding by attachment execution by John Ehler v. John Lenher, the defendant in the judgment, and Christian Kieffer, garnishee.</p> <p>The facts of this case were as follows: John Ehlef; the plaintiff below, obtained a judgment against John Lenher, the defendant, No. 206, to January term, 1851, in the Common Pleas of Lancaster'county, for a real debt of $1036.89, payable forthwith, which was entered February 28, 1851.</p> <p>On the 6th of March, 1851, Christian Kieffer (the garnishee), gave his note to the said Lenher, for the sum of $273.66, payable in three months, and of which the following is a copy:</p> <p>“$273.66</p> <p>Lancaster, March 6, 1851.</p> <p>“ Twelve months after date, I promise to pay to the order of Jno. Lenher at the Lancaster Savings Institution, Two Hundred and Seventy-three dollars without defalcation, for value received, without interest. C. Kierrer.”</p> <p>' On the 29th of March, 1851, an attachment was issued by Ehler, the plaintiff below, against the said Lenher, defendant, and C. Kieffer, garnishee, to April Term, 1851, No. 127, in satisfaction of the judgment above stated; to which the sheriff made return, that on March 29,1851, he attached the goods, &c., moneys, rights, and credits of the defendant in the hands of Christian Kieffei1, and summoned him as garnishee; and informed him of the proceedings by reading.the writ to him and by giving him a copy.</p> <p>On the 1st May, 1851, the note in question was discounted by the Lancaster Savings Institution, a corporation, for a valuable consideration and without notice.</p> <p>On the 17th January, 1852, the plaintiff had interrogatories filed, to which Kieffer, inter alia, replied, that on or about the 6th day of March, 1851, garnishee purchased the stock and materials lying in and about a foundry, and gave therefor to John Lenher one note for $273.66, dated March 6,1851, payable 12 months after date. Also one note to James Whitehill for $136.82, payable 12 months after date. These notes, as garnishee believes and has been informed, have all passed into the hands of third parties.; but the amounts of the same are as yet unpaid. On inquiry, he learns, that the note for $273.66, given to John Lenher, was discounted at the Lancaster Savings Institution between the first and tenth days of May, 1851. Garnishee, though a director of said institution, was not at the meeting of the board when the same was discounted.</p> <p>Garnishee further adds, that he does not know at what time any of thé other notes passed into the hands of third parties.</p> <p>The 37th section of the Act of 16th June, 1836, in relation to attachment executions, provides that, “ From and after the service of such writ, all stock belonging to the defendant in the corporation upon which service shall be so made, and ali debts and all deposits of money, and all other effects belonging or due to the defendant, by*the person or corporation upon which service shall be so made, shall remain attached in the hands of such corporation or person, in the manner heretofore practised and allowed in the case of foreign attachment.”</p> <p>On the facts, the plaintiff asked that judgment may be entered against the garnishee. The application was resisted on behalf of the Savings Institution, to whom the note was passed by Lenher after it was attached, and before it was payable, and which claimed it from Kieffer, the drawer and garnishee, upon the ground that the Act of 16th June, 1836, authorizing debts to be attached, did not apply to negotiable notes, passed into the hands of third persons for value, without notice and before they are due; and also that the note in question, not being due, was not liable to attachment!</p> <p>Long, J., was of opinion that though the law relating to commercial paper protects an innocent holder without notice, yet in this case there was legal notice to the Savings Institution of the attachment: 1 Story’s Eq. sec. 405-6; 2 Vern. 162; 14 Ser. & R. 138, Opinion of Duncan, J. He decided that though the note was not due when attached, yet that it was liable to the attachment : 2 Dallas 211, Walker v. Gibbs.</p> <p>Judgment was entered against the garnishee, to which error was assigned.</p>

<p>Appeal of Henry Boose, surviving administrator of Peter Boose, deceased, from the decree of the Orphans’ Court of York county, 'distributing the estate of said deceased.</p> <p>Peter Boose died in 1835, and letters of administration on his estate were granted in the same year to Henry Boose and Andrew Neiman.</p> <p>On the 12th of September, 1837, an order was granted by the Orphans’ Court to the administrators to sell the real estate for the purpose of paying debts. They sold to David Meisenhelter, who was then married to the widow, for the sum of $5757.07-|-; and the Court confirmed the sale. The administrators were charged with the whole proceeds of the sale. The sale was for more than sufficient to pay the debts. The sum of $1328.95J was left by the administrators in the hands of Meisenhelter, the purchaser; and he gave a bond, dated the 8th of June, 1837, conditioned for the payment of that sum, on the day of the death of the said widow, and to pay the interest to her from the first day of April last, to the day of her death. An auditor was appointed to distribute the balance on the administration account.</p> <p>After the payment of debts, &c., there remained of the proceeds of sale, for distribution among the widow and children, the sum of $4121.21, or thereabouts. Two-thirds of the sum was distributed by the auditor among the widow and children, as was also the principal of the other third among the children, to be paid after the death of the widow. The auditor further awarded to Rebecca Meisenhelter, widow of the decedent Peter Boose, the wife of Meisenhelter, the purchaser, the sum of $82.29 annually, being the interest of the other third, or thereabouts, with interest on each annual sum, if the same be not paid when due.</p> <p>Exceptions were filed to the report, which, on 26th April, 1851, was confirmed. From the decree of confirmation, Henry Boose, the surviving administrator, appealed. Exception was filed to the confirmation, and to the decree in favor of Rebecca Meisenhelter.</p>

<p>1. The assignment of a mortgage is the subject of record under the second section of the recording act of 28th May, 1715, and a certified copy of the record of such an assignment is evidence.</p> <p>2. The assignment of a mortgage is an assignment not only of the claim against the mortgagor, but of all the securities which the assignor holds against the mortgagor or other parties for the same.debt.</p> <p>3. After notice to the debtor that his creditor, a bank, in good faith had transferred the debt tc a third person to secure the latter for acceptances made for the bank, the proceeds of which had been received by the bank, and after notice of the insolvency of the bank and after a general assignment by it in trust for its creditors, the purchase by the debtor of the depreciated notes of the bank and tendering them to the attorney or agent of the bank or its assignees in payment of his debt, will not defeat the claim against him by the innocent transferee.</p> <p>4. The second section of the Act of 12th March, 1842, provides that when a bank has made a general assignment in trust for the benefit of all their creditors, “ the assignees shall receive in payment of debts due to said bank, its own notes and obligations.” If this provision be limited to the notes and obligations of the bank which the debtor had received in ihe usual course of business before notice of the assignment, its justice is so obvious as to require no aid from the statute. By the letter and spirit of the statute the notes of an insolvent bank purchased after notice of a general assignment for the benefit of its creditors, can be tendered only in payment of debts “ due to the bank,” to such as belonged to the bank at the time of its assignment, and which passed to the assignees; and not to such debts as were transfen'ed by the bank before such assignment in good faith and for a valuable consideration, with the knowledge of the debtor,</p> <p>5. It is not material in what manner the knowledge of the transfer was acquired by the debtor, so that it existed at the time of his purchase of the notes of the bank; it is not necessary that notice of the transfer be given to the debtor by the person in whose favor the transfer was made, nor is it neeessai’y that it be given in writing.</p>

<p>1. After notioe to the drawer of a note payable at a bank and negotiated there, that the note had been transferred by the bank to the endorsee of the holder, it is too late -for the drawer to tender to the cashier of the bank, in payment, the notes of the bank not procured in the usual course of business, and before notice of the transfer.</p> <p>2. The burden of proof of the facts necessary to make the tender effectual, was on the party making the tender. There is no presumption of law arising from the tender, that the party had the notes in his possession on an earlier day than that on which he offered them in payment of the note.</p> <p>3. In a notice to the drawer of the transfer of his note by the bank, a misdescription of the note was not material, as it was found in the special verdict rendered in the case, that the note was transferred before the tender of notes of the bank in payment, no objection or claim to the note being made on the part of the bank by which the transfer was made.</p> <p>See ease of Philips v. Bank of Lewistown, antea.</p>

<p>Error to the Common Pleas of Mifflin county.</p> <p>This was an action of debt in the name of John Clay, for the use of John S. Pollard, v. John F. Cottrell, on a note as follows:</p> <p>$4000. Gettysburg, October, 20, 1888.</p> <p>On demand we promise to pay to John Clay or order, four thousand dollars, without defalcation, for value received.</p> <p>(Signed,) Caldwell & Cottrell.</p> <p>August 26, 1840, $2322.63, were paid on account. There was an agreement endorsed, by which Clay agreed to make no demand for the balance of the note for a year from the date thereof, viz., August 26, 1840, and a memorandum signed by Oaldwell, that the note was to bear interest from that date.</p> <p>Defendants plead non assumpsit and payment with leave. After-wards the defendants severed in their defence, and Caldwell plead non assumpsit, and other pleas, and Cottrell plead non assumpsit. Caldwell died during the pendency of the suit, and it was tried against Cottrell alone.</p> <p>From March, 1838, till February, 1839, Caldwell & Cottrell were partners in carrying on “Matilda Furnace,” in Mifflin county. In October, 1838, Caldwell was in partnership with Clay in section 8 on the Gettysburg Railroad. In the fall of 1838, the supervisor of that road paid to Oaldwell $8000 on the joint contract. The one-half of this belonged to Clay, and Caldwell gave to Clay the note in suit, signed Caldwell & Cottrell, for $4000, Clay’s half of the amount received by Caldwell from the supervisor. Cottrell was not present at the time. In August, 1840, Clay and Caldwell had a settlement relative to their railroad contract, by which settlement $2322163 was due by Clay to Caldwell, and that amount was then credited on the note for $4000.</p> <p>It did not appear distinctly when the note was transferred to Pollard; but it was stated by the Court, that it would appear from the endorsements on the note and the proof in the cause, that it was transferred to him after it was due.</p> <p>It was testified that Clay, in the fall of 1838, said that he had received no part of the $8000; that Caldwell had received it to pay his private debts; that he still held the note, and expected Caldwell to pay it out of the first estimate on their work on the Gettysburg road; that that was their understanding at the time the note was given. This conversation took place shortly after the $8000 had been received by Caldwell.</p> <p>B. Smith, on part of-defendant, testified that he was appointed by Caldwell & Clay, to receive and distribute money coming to them after the suspension of the work on the railroad, and that he received and distributed between eighteen and nineteen thousand dollars. The object of this testimony was to show that funds were drawn, out of which the note in suit should or might have been paid.</p> <p>The deposition of W. Bighter was read after objection, and he stated, inter alia, that in the winter of 1840, Clay expressed to him fears that Cottrell knew nothing about the note.</p> <p>On the part of the plaintiff, evidence was given that in 1838, Caldwell received credit on the books of Matilda Furnace, for store goods to the amount of $3761.72; and that Caldwell was also credited with other matters, in all amounting to $4799.22. The bills awere rendered by Caldwell on 28th December, 1838, and their amount was credited to Caldwell by Evans the clerk. The bills for the store goods were dated from the 24th to 29th October, 1838.</p> <p>The partnership in the furnace between Caldwell & Cottrell, was dissolved on 20th February, 1839. On that day Cottrell paid Caldwell aboVe $2000 in notes of the Bank of Middletown, which Evans testified that he and Rogers, who paid the furnace hands and other people on the same and next day, supposed to be the same money which was paid by Cottrell to Caldwell.</p> <p>Evans also testified, that about two months after the dissolution between Caldwell & Cottrell, he heard Cottrell say, that Caldwell had given the firm note to Olay to the amount of $4000.</p> <p>Plaintiff’s counsel offered to prove the same thing by Rogers. The evidence was objected to as irrelevant, and was overruled, and plaintiff’s counsel excepted.</p> <p>'Wilson, J., charged, inter alia: “ The defence set up by John F. Cottrell (who is the only defendant before you on the issue trying), is, that the note was not given for any liability of their firm, and he alleges that it was given by Caldwell for his own individual liability to Clay. If this is as he alleges, his defence is an available one, and the plaintiff cannot recover.</p> <p>» * * * *</p> <p>“ The money, as the evidence would show, was drawn by Caldwell, on the contract in which Clay was a partner with him in the Gettysburg Railroad. Caldwell was authorized to draw it, and would be accountable to Clay for what he drew, but he would not be authorized to secure to Clay for final settlement of their accounts, what he drew of the money due them on their contract, by using the firm name of Caldwell & Cottrell, without the consent or knowledge of Cottrell: that is, he could not, under such circumstances, bind Cottrell by using the firm name to a note.</p> <p>“But if it was received by Caldwell individually, or as the partner of Clay in the contract on the Railroad, and Cottrell was interested with Caldzoell in that contract, Cottrell would not be liable unless the money was applied to the use of the firm of Caldwell and Cottrell, with the knowledge and approbation of Cottrell.</p> <p>March 15, 1850, verdict for defendant.</p> <p>Error was assigned: 1. To the admission of the testimony of Smith, which is referred to. 2. To the admission of the recited testimony of Righter. 3. In rejecting the statement of Smith that he and Rogers considered the money paid over by Rogers to be the same money which had been paid by Cottrell to Caldwell. 4. In rejecting thq offer to prove by Rogers the same thing in effect. It was alleged that this was evidence tending to show that Cottrell was a partner with Caldwell & Clay on the railroad. 5. In receiving the testimony of Fields, that he had heard Evans say hard things of Cottrell. 6. To the parts of the charge recited. 7. That the charge was calculated to mislead the jury as to the evidence relating to the consideration of the note.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was the case of an attachment execution, issued on a judgment obtained in Lancaster county, for the use of the executors of Gochenaur v. George Shreiner. The attachment execution issued against George Shreiner, defendant, and John S. Hostetter, as garnishee. The sheriff returned that on April 10, 1851, he attached the goods, &c., of the defendant in the hands or possession of John S. Hostetter, and summoned him as garnishee.</p> <p>George Shreiner, one of the heirs of Michael Shreiner, late of Lancaster county, deceased, was indebted to the executors of Joseph Gochenaur, deceased, on a judgment obtained in Lancaster county. To secure the payment of this judgment, the above attachment execution was issued, and the share, viz., $636.09, of the said George Shreiner, attached in the hands of the said garnishee, John S. Hostetter. This money he received in the following manner: Michael Shreiner authorized his executors to sell his real estate, which was situate in Lancaster county, and divide the net proceeds among his widow and heirs. Daniel Shreiner, the remaining executor, resided in Dauphin county, and John S. Hostetter, as his attorney in fact, made a sale of the said real estate, received the purchase-money, paid debts and expenses, and, under the instructions of the executor, paid the widow and heirs their respective shares; he paid, also, the share due to Daniel, the said executor. The share, viz., $636.09, due George, Daniel, the executor, desired Hostetter to pay over to himself, and said he would settle with the defendant. Subsequently, Hostetter received a power of attorney, dated 20th March, 1851, from George Shreiner, who lived in the state of Indiana, authorizing him to receive his share of the aforesaid estate. After the receipt of the power of attorney, the said attachment execution was issued and served on Hostetter, as garnishee, who stated that but for the service of the said attachment, he would have remitted the money to George Shreiner. An attachment execution issued in Dauphin county at the instance of Finney, another creditor of the said Shreiner, subsequent to the issuing and service of the attachment in Lancaster county.</p> <p>The Court directed judgment to be entered for the defendant, the garnishee. The entry of such judgment was assigned for error.</p> <p>The case was argued by A. Herr Smith, for plaintiffs in error. Under the attachment laws the general rule is that any person may be compelled to answer in whose possession there is property of the defendant: Sergeant on Attachments 97.</p> <p>The first section of the attachment law of 27th July, 1842, provides that any interest which any person or persons may have in the real estate of any decedent, whether by will or otherwise, shall be liable to be attached by writ or writs of foreign attachment, “ in the hands or possession of the executor or administrator, or in whose hands or possession soever the same may be, as fully and effectually as in other cases.”</p> <p>The Act of April 13, 1843 (Acts, p. 233), Purdon, title Executor, extends this provision to execution attachments.</p>

<p>Appeal of Catharine Weiser, executrix of Martin J. Weiser, from the decree of the Orphans’ Court of York county, distributing the estate of Martin Weiser, deceased.</p> <p>Martin Weiser died in 1822, and letters testamentary were, on the 5th of November of the same year, granted to his sons, John and Martin J, Weiser, whom he appointed executors. John never acted until after the death of Martin J. On the 25th of July, 1823, Martin J. Weiser, the acting executor of Martin Weiser, filed his administration account, the balance on which he distributed among the heirs. This balance consisted of personal estate of which the testator made no disposition in his will, and which went to his children in equal shares. On the 23d of October, 1823, John Yost, the husband of Catharine Yost, who was one of the daughters and heirs of Martin Weiser, in consideration of the payment of $357.22, for his “ dividend share of the personal estate, as far as the same is settled, of Martin Weiser, deceased,” executed a release to Martin J. Weiser, as acting executor; and covenanted to refund a proportionate part of any debt or demand that might thereafter be recovered against the estate. The amount thus paid to the husband of Catharine Yost,, was more than her full share of the whole estate, as reduced by a subsequently recovered debt. To November Term, 1832, a judgment was recovered against the estate of Martin Weiser, the testator, for $2214.26, on an administration bond, in which he Was surety. The one half of this judgment was paid by the other surety; and Martin J. Weiser paid the other half, $1107.13, for which he had no funds of the estate in hand. Some of the heirs refunded; but the husband of Catharine Yost was insolvent and could not. He subsequently died insolvent, and left his wife to survive him.</p> <p>• After the death of Martin J. Weiser, John Weiser, as surviving executor, received funds of the estate, under the following provisions of the will:—</p> <p>Item — I give unto my daughter Lydia two hundred dollars, in such way as my executors may think best; also the square of ground in the borough of York, during her life, and at her death the same to be sold by my executors, and the money to be divided in equal parts between her children, if she has any, otherwise be equally divided between my sons and daughters. I also give her one undivided half of my house and lot in Bottstown, in West Manchester township, York county, during her life; if no heirs, then the same to be equally divided between my sons and daughters, but said house and lot to remain in my executors’ care in trust for the use before mentioned; they may at any time dispose of the same, and put the money at interest, or purchase other property for the use and benefit aforesaid.”</p> <p>Lydia died without issue, and the money received by the surviving executor was made up of the proceeds of the sale of the square of ground, and of a mortgage in which the proceeds of the sale of the Bottstown property were invested.</p> <p>The surviving executor settled an account of this fund, on the 1st of June, 1848, exhibiting a balance of $553.85. An auditor was appointed to distribute. He awarded nothing ‘to Catharine Yost; but gave what she claimed to the estate of Martin J. Weiser, deceased. Catharine Yost filed exceptions to the report of distribution ; and on the 3d of May, 1852, the Orphans’ Court reversed the report of the auditor, and decreed to Catharine Yost a full share of the balance on the administration account. From this decree Catharine Weiser, executrix of Martin J. Weiser, appealed.</p> <p>Exception. — The Orphans’ Court erred in decreeing $88.10 to Catharine Yost.</p>

<p>1. The indorser of a promissory note in negotiable form indorsed when overdue, or then passed away with his indorsement previously made, is not liable thereon, unless the note be presented to the drawer for payment within a reasonable time after its transfer, and if not paid, notice of non-payment given to the indorser.</p> <p>2. The contract of indorsement may be converted by parol evidence into an absolute and unconditional engagement to pay ; and it may be explained by the same kind of evidence to mean nothing more than the transfer of the note without recourse to the indorser.</p>

<p>Appeal by William Black from an order of the Court of Common Pleas of Blair county.</p> <p>The case was brought up on certiorari.</p> <p>On the 20th of March, 1850, the petition of James Taylor was presented to the Court of Common Pleas, representing Ann Decker to be a lunatic; and that the petitioner was a relation by blood. A commissioner was thereupon appointed, and an inquisition returned to June Term following, finding the said Ann to be a lunatic and the owner of real and personal property. This inquisition was on 19th June confirmed, and William Black, the appellant, appointed committee of the person and estate of the said lunatic. He gave the required security, and entered on the discharge of the duties of his trust. On the 20th October, 1850, the petition of Ann Decker, the lunatic, was presented, setting forth that her committee had been appointed without her consent, and that she regarded him as her enemy, and praying for his dismissal and the appointment of David Gr. Hunter in his stead. The petition was endorsed by sundry citizens of the township in which she resided, who further intimated that Black was not a proper person to act as the committee. On the grounds set forth in this petition, a rule was ordered on this appellant, returnable at December Term, 1850, to show cause why he should not be discharged. At December Term, the rule was returned with an affidavit of service by reading, thereon endorsed. The committee was thereupon discharged, as was alleged on his part, without a hearing, and of this order he complained. Hunter was appointed committee in the place of Black.</p> <p>Exceptions were filed: 1. That the Court erred in discharging the appellant on the petition of the lunatic, Ann Decker, and others, without even a verification of the facts therein set forth by an affidavit. 2. In discharging the appellant, because the complaint set forth in the petition, if true, was not a legal ground for his dismissal. 3. In discharging the appellant without affording him an opportunity of being heard, and without any evidence whatever establishing the truth of the facts alleged against him.</p>

<p>Error to the Common Pleas of Mifflin county.</p> <p>This was an action in the name of the Commonwealth of Pennsylvania, at the suggestion of Ellis P. Irwin, against D. McKean Contner, sheriff of Mifflin county, and his sureties, upon his official recognisance. Ellis P. Irvin having obtained a judgment against Francis A. Whitaker in the District Court of Philadelphia, for $2160.85, a testatum writ of fieri facias was issued thereon to Mifflin county. The writ was delivered to sheriff Contner, and he wras requested to levy on a large amount of personal property at the Matilda Furnace, in the possession of Whitaker. The sheriff made his levy; and John F. Cottrell gave notice that the greater part, if not all of that property, belonged to him, and had been leased to Whitaker with the furnace property. Upon receiving this notice, sheriff Contner applied to the District Court at Philadelphia, under the provisions of the 9th section of the Act of 10th April, 1848, relating to the jurisdiction and proceedings in certain courts {Pam. Laws of 1848, p. 450), for a rule on the claimant to maintain or relinquish his claim of property in the goods levied on. Cottrell answered the rule, and it was made absolute on the 7th of July, 1849. The Court thereupon ordered “that a feigned issue shall be framed upon a wager in the usual form, to determine whether the right of property in the goods levied on and claimed, or any part thereof, is in the defendant, or in the claimant, in which issue the claimant shall be the plaintiff, and the plaintiff in the execution the defendant. That the declaration in such issue shall he filed by the claimant within fourteen days, and within the said time the claimant shall give bond to the plaintiff in such penal sum and with such security as shall be approved by one of the judges of this Court — conditioned that the goods levied on and claimed shall be forthcoming upon the détermination of the said issue, to answer the execution of the plaintiff, if said issue shall be determined in favor of the said plaintiff in the execution — or so many of them as shall be determined to belong to the defendant, and to be subject to the execution of the said plaintiff. That when said declaration is filed and bond given, the sheriff do withdraw from the possession of such of the goods and chattels seized by him under the execution as are claimed by the claimant — that no action be brought against the said sheriff in respect of the said goods and chattels — and that the question of costs and all further questions be reserved until after the trial of said issue.”</p> <p>After the receipt of a letter from the counsel of the sheriff of the city and county of Philadelphia, purporting to state the terms of the order of the Court, sheriff Contner, as was alleged on part of plaintiff’s counsel, without any authority from the Court, relinquished his levy upon the property and gave it up to Whitaker, two days after the above order had been made by the Court. He immediately returned his writ, with a return endorsed upon it, stating that upon June 14, 1849, by virtue of the writ he had levied upon a small stock of store goods, 2 horses, 1 two horse wagon, 20 mules and their gears, 7 wagons, coal beds, 5 tons of pig metal, a lot of furnace tools, 2 carts, 1 sofa, 1 doz. chairs, and a lot of carpet, all at Matilda Furnace, Mifflin county, Penn., as the property of Francis A. Whitaker. And further, that he did on the ninth day of July, A. D. 1849, withdraw from the possession of the said goods and chattels according to the direction of the within-mentioned Court, made on the 7th day of July, 1849. Cottrell never gave a bond or filed a declaration in the feigned issue directed.</p> <p>On the 4th of August, the District Court granted a rule on Cottrel, the claimant,' to show cause why he should hot be barred of any action against the sheriff or his officers, and why the sheriff should not he directed to proceed and sell the goods levied on and claimed; which rule was made absolute on the 3d of September, 1849. On the same day, the counsel of Irwin issued a writ of venditioni exponas to sheriff Contner, to sell the goods which he had levied on; to which he returned, that by virtue of a writ of fieri facias issued out of the Court of Common Pleas of Mifflin county, No. 129, to August Term, 1849, at the suit of Washington Righter v. Francis A. Whitaker, for a debt of $532.25, the same personal property recited in this writ of venditioni exponas, Francis A. Whitaker’s interest therein and thereto, was levied»upon and sold for the sum of $2100, on the 28th day of July, A. D. 1849, and that he had made return to Court accordingly; to which return he made reference. The Court of Common Pleas of Mifflin county appointed an auditor to distribute the fund in Court.</p> <p>The attorney of Irwin was notified by the auditor, but neither he nor Irwin appeared before him. The auditor awarded the amount of the sale, less costs and expenses, to John F. Cottrell, upon a claim by him for rent, under lease.</p> <p>The judgment on which the execution on which the property was sold issued, was confessed by Whitaker. The property was bought in for Cottrell at the sale under the Righter writ. The sheriff delivered the property to Cottrell without receiving any of the purchase-money, except the amount of his costs. There was no money in Court, or in the hands of the sheriff, when the auditor was appointed, or at any time during the progress of the audit.</p> <p>The plaintiff assigned, for breaches of the recognisance, 1. The wrongful neglect and omission of the sheriff, in not executing and selling the property under Irwin’s writ of fieri facias. 2. The sheriff’s withdrawing from the possession of the property previously levied on under Irwin’s writ, and falsely returning thereto that he had done so according to the direction of the District Court, made on the 7th day of July, 1849. 8. The neglect and refusal of the sheriff to execute Irwin’s writ of venditioni exponas.</p> <p>To which the defendants pleaded “covenants performed and payment with leave, &c.”</p> <p>Upon the trial of the cause, the plaintiff gave in evidence the entire record in the case of Irwin v. Whitaker, in the District Court of Philadelphia, and the proceedings under the sheriff’s interpleader act.</p> <p>The defendants produced the auditor appointed by the Court of Common Pleas of Mifflin county, in the case of Righter v. Whitaker, who stated that he notified the attorney of Irwin to appear before the auditor in that case, and that there was no appearance by Irwin, or on his behalf. . ,</p> <p>The admission of such testimony constituted the first exception.</p> <p>The defendants offered in evidence the record of the Court of Common Pleas of Mifflin county, in the case of Righter v. Whitaker, to be followed by the auditor’s report in that case, and a notice from the attorney of Irwin to the sheriff, that he claimed to have the proceeds of the sale under the Righter writ paid to Irwin.</p> <p>The admission of that record was the second ground of exception.</p> <p>The auditor’s report in that case was admitted in evidence' for the defendants, under the third exception.</p> <p>The defendants offered a lease of the Matilda Iron Works, together with a large amount of personal property, from John F. Cotti;ell to Francis A. Whitaker, dated the 17th day of June, 1849, reserving an annual rent of $3500. The lease was of the 'Matilda Furnace property, and farm connected .therewith; also, the personal property, consisting of store, teams, &c., as per inventory, at a valuation fixed, &c.; also, the necessary wood-leave for house, farm, and for building purposes; also, the ore privileges, &c.; and wood-leave to the amount of 2000 cords annually, provided it is coaled and used in said furnace, for the term of five years from the 1st day of April, 1848. The rent of $3500 annually-was to be paid half-yearly, in advance. It was also agreed, that if Whitaker paid Cottrell for the personal property after that time, the rent for the real estate and ore-leave for the furnace and wood-leave, to be $2500 per annum.</p> <p>The admission of that lease was the subject of the fourth exception. The remaining exceptions were to the judge’s charge.</p> <p>Verdict was rendered for the defendant.</p> <p>Parts of the charge assigned for error, were to the effect that the plaintiff Irwin might have appeared before the auditor in the case of Righter v. Whitaker, and made claim in the fund. That from anything that appears, Cottrell would be entitled, in the first place, after payment of costs of the sale, to the year’s rent of $3500. That Cottrell would be entitled to the ■ whole of the rent, though it. ivas reserved in a lease of real and personal estate. That if there was a year’s rent due when Irwin’s rvrit was levied, and the property would not have brought more at a fair sale, than the amount of the rent due, the plaintiff has not lost anything by the sale.</p>

<p>1. A tract of land was conveyed in consideration of a sum of money and subject to a covenant and agreement mentioned in the deed that .the grantee shall maintain and keep the grantor in good and sufficient boarding, washing, lodging, making, and mending, during his natural life, and attendance in sickness and in health; the support and maintenance to be a lien and charge upon the land. The grantor resided in the family of the grantee on the premises for above two years, when he was removed by his son to another county: Meld, that the parties contemplated that the support and services should be furnished and rendered on the premises conveyed, and that on the removal of the grantee to another county without misconduct or provocation on the part of the grantor, the latter was not bound to render the support at the place of removal.</p> <p>2. It was held, that an action of covenant, founded on the covenants in the deed, brought by the grantor against “the grantee, several years after the removal of the former, and an award therein in favor of defendant which was not appealed from, was, as to the same matter, conclusive against the right of the executor of the grantor to recover the premises in ejectment.</p>

This was an appeal by the Commonwealth from the report of the auditors of Huntingdon county, under the Act of 16th April, 1845, {Acts, 534) auditing the accounts of James Steel as Prothonotary of the Court of Common Pleas, and Clerk of the Quarter Sessions, and of the Courts of Oyer and Terminer of Huntingdon county. The case was tried before, and a report of it will be found in 8 Barr 128-133. May 22, 1848, the judgment in favor of the defendant below was reversed.

This action, which was instituted 16th August, 1847, was brought by R. Cook, J. Cook, and D. Cook, against Alexander Dunlap, to recover the possession of a tract of land containing ten acres more or less. On the trial in the Common Pleas the plaintiffs endeavored to prove title by improvement to about three acres, commenced about 1814, by James Dunlap, who died in 1816.

This was an action of ejectment brought in 1849, by Benjamin Carson v. John Potter and Thomas Carson, for 79 acres of land, and on the part of the plaintiff below and in error, the following evidence of title was presented. On the 28th December, 1829, a warrant was obtained for the land in the name of Benjamin Carson, the plaintiff’s uncle, and on the 30th March, 1831, he received a patent for 79 acres.

This was an action by Wetzel v. Sponsler’s executors, brought to August Term, 1850. It was a suit brought on a sealed note, dated 7th April, 1847, payable one year after date, for $100, given by John Cornman and George Sponsler (the latter being a surety), to John Wetzel.

The viewers appointed reported to April Term, 1850, in favor of a road, and their report was approved nisi on 9th April, 1850. At August Term, 1850, reviewers were appointed, who reported in favor of a road different from that suggested by the viewers. This report was approved nisi; the new road to be opened 28 feet wide.

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was a suit by Samuel Holliday v. Jacob Klieem, brought to recover the amount of a promissory note, dated 16th March, 1847, payable one year after date, given by Samuel Holliday to Michael McMath or bearer, for $200, and endorsed by Michael McMath to Jacob Kheem. There was a credit on the note of $25, dated May 23,1849. The defendant pleaded payment with leave, to which was afterwards added the plea of non assumpsit. The cause was first tried at the January term, 1851; and the defendant rested his defence on the grounds of the note in suit having been endorsed after its maturity; that the consideration of the same was the sale of the patent-right of Howd’s improved water-wheel for the county of Mifflin, Pennsylvania; and that this patent-right was not new and original with the patentee. The jury rendered a verdict for the defendant, and judgment was entered thereon. Upon this judgment the plaintiff (Jacob Rheem) sued out a writ of error to the Supreme Court, to wit, No. 70, May Term, 1851, and the Supreme Court reversed the judgment of the Court below, and awarded a venire facias de novo. (See .the case reported, 4 Harris 347.)</p> <p>The case came up for trial again in the Court below, at November term, 1851. It was then conceded by the plaintiff that the note was endorsed after maturity, and that the consideration was the sale of the patent-right as before mentioned. The trial, therefore, turned entirely upon the validity of this patent-right.</p> <p>A number of witnesses were examined, and various drawings and models of water-wheels in use before the date of Howd’s patent were exhibited by the defendant, to show that Howd’s invention was not new and original with him.</p> <p>The plaintiff on the other hand exhibited a model of the Howd wheel, and examined witnesses to show the originality of the patent in controversy. The jury rendered a verdict for the plaintiff for the sum of one hundred and eighty-one dollars debt, with six cents damages and six cents costs. Upon this verdict judgment was entered, and the defendant sued out this writ of error.</p> <p>Th& fifth point submitted on the part of the plaintiff was as follows : — “ If there is anything new and useful in Howd’s wheel, either in the formation of the chutes, the manner in which the wheel is made, or the combination of the chutes and wheel as set out in his claim, in connection with his description of the wheel preceding his claim, his patent is valid, and plaintiff is entitled to recover.” The Court answered this point affirmatively.</p> <p>Watts, J., after answering the various points presented on each side, charged as follows:</p> <p>“ It is competent for the inventor of a new and useful machine; of a new and useful element or part, to be used with other well known elements or parts of a machine; or of a new and useful combination of old elements or parts of a machine, to obtain a patent.</p> <p>“ To ascertain, in this case, whether Howd has a patent for a new element, or part of a water-wheel, or a new combination of old elements or parts producing a new result, you must refer to the specification of what he does claim, as found in his patent; and then inquire for yourselves, from the evidence given you, does he claim what is new; in other words, has he invented a principle upon which the power of water is usefully applied, which was before unknown ? [Here the Court read the claim.]</p> <p>“ lI claim, as my invention, the application of the water upon the outside of the wheel, and operating upon the principle of reaction, by discharging inwardly on a wheel, constructed and combined so as to operate as above described, with the spouts or chutes, giving the water a direction with the motion of the wheel, applied to a reacting wheel as aforesaid.’</p> <p>“ Compare this with the evidence given by the witnesses, the models, and the books, and conclude for yourselves whether Howd’s patent contains anything new, originating with himself.</p> <p>“All else that has been argued has nothing to do with the subject, and should have no weight upon the minds of the jury. I mean whether Mr. Holliday put up a wheel in Mifflin county, or whether he sold rights in Mifflin county, of which no evidence was given; or, in this case, his opinion whether the wheel is useful or .not; for, this being conceded, the only question before the jury is, is Howd’s claim, as set forth in his patent, his own invention ? or is it the invention of other heads than his ?</p> <p>“We are called upon to determine, upon the evidence before us, whether Howd has discovered a new principle of power, or a combination of old elements constituting a new principle of power, not before known and used. All else has little to do with the subject; and if the jury will discard other considerations, and direct their minds to this point, they will be enabled to do justice according to law. Howd, in his specification, first describes an entire waterwheel, many parts of which are as old as mills, and for which he has no right, or presents no claim; and in the concluding paragraph he defines what part of that wheel he claims as his invention. Is there in this anything that was new and original with him?”</p> <p>It was assigned for error: 1. The Court erred in answering the plaintiff’s fifth point in the affirmative.</p> <p>2. The Court erred in submitting the construction of the specification and claim of Howd’s patent to the jury; that being a written instrument and to be construed by the Court.</p> <p>3. The Court erred in narrowing the question for determination to the inquiry, “whether there was anything new and original in the Howd patent.”</p> <p>4. The Court erred in answering the plaintiff’s fifth point in the affirmative.</p>

<p>Error to the Court of Common Pleas of Juniata county.</p> <p>This was an action of ejectment brought to February Term, 1851, for 135 acres of land, in which Benjamin Yoder was plaintiff, and Peter Yoder and Eleanor his wife, and William Burris, were defendants.</p> <p>The evidence in the cause showed that the land was originally settled by George Fry about 1800. That he built a house, cleared some land, and lived there until his death, about 1806. He left a widow and one child nine years old, who continued to live upon the land until about 1813, when the widow sold out the improvement right to Peter Burris, who went upon the land and lived there until his death in 1824. In 1825 Peter Yoder married Eleanor, the widow of Burris, and went to live on the land, where the widow and children of Burris then were. On 7th April, 1827, Peter Yoder bought the land from John Stahl and wife, the latter being the only child and heir at law of George Fry, and got a deed for it; and on the 4th June, 1827, he sold and conveyed the land to Benjamin Yoder, the plaintiff below. The possession of Peter Yoder and his family, and of such of the Burris family as remained at home, has been continued up to this day. In 1814, Peter Burris obtained a warrant for the land and had it surveyed, but pursued the matter no further. In 1849 Benjamin Yoder applied for a warrant, and then Peter Yoder was one of his witnesses to prove the settlement, and testified that he had lived on the land as tenant of Benjamin since 1827.</p> <p>On the trial it was contended on the part of the plaintiff that the Fry title was abandoned. 2. The purchase of Peter Yoder enured for the benefit of the widow’s title. 3. That Peter Yoder had been in possession from 1827 till 1850, and the statute of limitations operated; and 4. That Fry had no title.</p> <p>Watts, J., charged that there was no evidence in the case that Ery had abandoned his title. He made a settlement and died on the land. His widow and child continued to live on the land till Burris purchased from the widow of Ery. The latter left the land, took her child with her, and gave the possession to Burris. There is in this no evidence of abandonment.</p> <p>He also charged that Peter Yoder’s purchase did not enure to the benefit of his wife. His purchase from the child of Ery gave him title, and his subsequent conveyance to his own son Benjamin Yoder, the plaintiff, vested the title in him. The wife of Peter Yoder, whose husband had left her, cannot claim possession by the statute of limitations. Yerdict for plaintiff.</p> <p>Error was assigned to the charge.</p>

<p>A testator in his will, after disposing of Ms personal estate, devised to Ms nephew, Ms heirs and assigns for ever, the one-half of Ms real estate, the other half part, “ I do will and bequeath unto my legal and natural heirs, and to their heirs for ever, to be divided among them in equal shares, to be share and share alike.” Iiis will was dated 8th October, 1819, and the testator died in 1837. He left one sister and the children of other sisters, and the children of a nephew who died before the testator, viz., in 1828, leaving two children, the nephew also leaving two brothers and a sister.</p> <p>It was held, that the statute of distributions was to be resorted to, to determine the persons who were entitled under the will; that the heirship is to be determined by the law existing at the death of the testator, and not at the date of the will; and that, as the intestate act of 1833, which was in force at the death of the testator, prohibited representation amongst collaterals after brothers’ and sisters’ children, the brothers and sister of the nephew were entitled to tbe share in light of their mother, to the exclusion of the children of the nephew.</p>

<p>Error to the Common Pleas of Franklin county.</p> <p>Roemer gave to Denig a promissory note under seal, dated 3d October, 1851, for$2500, payable one day after date, with authority to confess judgment thereon. On the next day, 4th October, judgment was entered and fi. fa. issued. The writ of fi. fa. was received at 8 o’clock, A. M., by the deputy sheriff.</p> <p>On 4th October, 1851, Roemer executed a note under seal to Oaks & Caufman for $920, for value received, with authority to confess judgment without stay of execution. On same day judgment was confessed thereon and fi. fa. issued, which was marked received October 4th ‘by the deputy sheriff, at 2 o’clock, P. M.</p> <p>On 7th October, 1851, a rule was granted to show cause why the fi. fa. on the judgment of Denig should not be set aside. On 16th October, 1851, personal property levied and sold for $1117.62.</p> <p>On November 3, 1851, in the case of Denig, a paper was filed signed by Roemer, in which it was stated that the fi. fa. in this case was issued with his full consent and approbation, and that it was the understanding at the time the judgment was given, that there was to be no stay of execution, but that execution was to be issued at once, and that he was satisfied that it was issued. This paper bore date 8th October, 1851.</p> <p>On the 3d November, 1851, in the case of Denig, another paper signed by Roemer was filed, which bore date on 9th October, 1851. It was stated in it that the execution on the judgment of Denig was prematurely issued, and that there were other irregularities connected with the same; and he requested the Court to set it aside for the irregularities, or for any other cause or matter which may be sufficient to set it aside, and authorizing counsel to make the application.</p> <p>On 5th November, the rule to set aside the execution of Denig was discharged. To this error was assigned.</p>

t This was an action of debt, brought by Maria McElhare, who sued as well for herself as for the Commonwealth of Pennsylvania v. Agnew, for $2375, the penalty under the Act of 1723, against usury. The defendant in the action, in 1837, lent to John Poe $950, and took his note for $1000 with interest. On the 4th September, 1838, he lent him $1425 more, and took from him a bond and mortgage for $2500, being $125 more than the two amounts actually lent.

<p>A party having been required to produce his account books, replied that he had no books, having done a small cash business, keeping no regular record of transactions in the store, but merely making memorandums from day to day upon a slate, or with a lead pencil in pocket pass-books. Held, that the Court were right in refusing to direct a nonsuit under the Act of 27th February, 1798, though a witness had previously testified that the goods purchased were charged to the firm, and were forwarded as per written instructions from one of the partners against whom the suit was brought, but who was not served with the process.</p>

This was an action of slander brought by Sarah Barger against William Barger. Plea, not guilty. Verdict was rendered in favor of the plaintiff for $212.50. damages.

This was an amicable action entered into between Henry Pile and others as plaintiffs, and the County of Berks defendant.

This was an action of trespass, brought to April Term, 1851, by Jacob Oyster v. Upton Washabaugh, to recover damages for diverting and using a portion of the waters of Falling Spring. On the 15th May, 1790, Benjamin Chambers owned the grist-mill, &e., now belonging to Oyster, and also the ground on which the brewery, &c., now owned by Washabaugh, was afterwards erected.

This was an action of trespass quare clausum fregit, brought on 15 Dec. 1849 in the name of Jacob Peck and Eleanor, his wife, v. Aquilla Ward, sen., and Philip, and Aquilla Ward, jun. 19th August, 1851, verdict was rendered for defendants. On the trial it appeared that the trespass complained of was in cutting wood on a part of a piece of land, containing about 38 acres 116 perches.

Appeal by Sarah D. C. Reamer, Ulrick Leffert, William Potts, William C. Reamer, and Francis C. Reamer, and also by others, from the decree of distribution by the Court of Common Pleas of Bedford county, of certain proceeds of sale of personal property of James Reamer.

This case was argued at Harrisburg, altbougb it originated at Philadelphia. It was an amicable action, in the nature of a quo warranto, entered to ascertain the right of B. Franklin Pyle to exercise the office of notary public for the county of Chester.