Volume 19 — Pennsylvania State Reports

This was an appeal on the part of the President, Managers, and Company of the Schuylkill,Navigation Company.

<p>1. An agreement, by one under whom the plaintiff claimed, to give to B. a right of passage along a private alley, in consideration of a light of way granted by B. over his lot, and followed by expenditure of money by B. on the faith of the agreement, cannot be revoked by the plaintiff on account of the interruption, by one claiming under B., of the right of passage over the lot: the remedy of the plaintiff is by action for the disturbance of his right of way over the lot.</p> <p>2. The owner of a portion of the front of a lot, No. 1, having with the owners of other portions of the same lot a right of passage along a private alley in the rear of the lot, agreed with B., the then owner of an adjoining lot, No. 2, to permit the owners of lot No. 2 to pass along the said private alley to a street bounding the first lot on the west: and B. agreed that the owner of part of lot No. 1 should have the right of way across his lot, No. 2, to a street on the south of both lots, on which they fronted. A subsequent owner of lot No. 2 erected a building over the passage across the latter lot. A., a subsequent owner of the part of lot No. 1 referred to, alleging that the passage over lot No. 2 was obstructed by the said building, brought an action against the owners of lot No. 2 for passing along the private alley after the said obstruction was made. It was held, that the obstruction of the passage across lot No. 2, if existing, did not authorize A. to revoke the right of passage along the said alley as respected the owners of lot No. 2; that A. could not maintain an action against the owners of lot No. 2 for using the private alley, but that his remedy was by action for the disturbance of his right of passage over lot No. 2.</p>

Pleas of Lebanon county. This was an action of assumpsit to January Term, 1852, by Moses Bowman v. Levi Kline. Held: the lands appraised in four parts, and on the 2d of January, 1816, the inquisition was confirmed by the Court.

This was a writ of error taken to the judgment of the Court below, rendered by Watts, J., holding a special Court in Lebanon county, in the matter of a special verdict in a feigned issue, directed by him between Shertzer’s executors, as plaintiffs, and Samuel Herr’s heirs, defendants. The issue was directed to decide who was entitled to the proceeds of sale of certain real estate sold at sheriff’s sale as the property of John Bowman, junior.

This was an action of ejectment by Catharine Eoltz against Cover and Gingrich, for a tract of land of 21 acres and 107 perches.

<p>Error, to the Common Pleas of Perry county.</p> <p>Ejectment by John Reifsnyder v. James Hunter, for a tract of land. The result depended on the interpretation of a devise in the will of James Hunter; viz., whether John Hunter took an estate in fee in the premises in dispute, or a life estate.</p> <p>A special verdict was rendered in the case.</p> <p>The material facts were as follows:</p> <p>James Hunter died seised of the land in dispute, having first -made his last will and testament, dated 15th April, 1835, and which was duly proved on the 14th of November, 1835, by which he devised the land in controversy, as follows : — “ I do give and bequeath unto my son John, and to his heirs, the farm or tract of land on which he lives, which I value at $800, with this proviso : that my son John shall not have any right nor power to sell nor convey the said farm to any person or persons, whomsoever, but at his death all the rights, title, and interest, shall be and remain full and perfect in his lawful heirs.” (The whole of which said will shall be considered as part of this verdict, as if herein fully set forth.) John Hunter was married in 1812, and had issue nine children. Upon the death of the testator, his son John entered into possession of the land, and enjoyed it until his death, which happened on the 15th of July, 1848. He died intestate, and indebted to an amount exceeding his personal estate Upon the application of the administrator of his estate, the Orphans’ Court of Perry county, on the 7th of August, 1850, ordered a sale of the said land for the payment of debts; in pursuance of which, the administrator, on the 26th of October, 1850, sold the same for the sum of $1500, which sale was confirmed by the Court, and a deed of conveyance of the land was made to the purchaser. John Reifsnyder was plaintiff, and the children of John Hunter, before named, were the defendants in the suit.</p> <p>The question was whether the said John Hunter took an estate in fee, or for life only, under the will of his father, James Hunter.</p> <p>If upon the facts the Court were of opinion that the plaintiff was entitled to recover, then judgment to be entered for him, otherwise for the defendants.</p> <p>Graham, J., in his opinion, referred to various authorities to the effect that the word heirs, in a will, may mean children, and will be so construed by the Court when it is necessary to carry out the intention of the testator: 4 Pickering 208, Brown v. Porter; 5 Parr 464, Eby v. Eby; 10 Parr 498, Johnson v. Currin. He further observed: That the testator did not use the word “heirs,” in the devise to John, for the purpose of vesting a fee simple in the devisee, is very apparent from the next clause in his will, where his manifest intention is to give to his son James, an estate in fee simple, and to effect this he uses the following language:— “I do give and bequeath to my son James, the farm on which he now lives ” If testator used the word “heirs” to vest a fee simpie in John, why did he not use the same word in the next sentence, to vest a similar estate in James? The use of the word “heirs,” in the devise to John, to which the proviso is added, intended to limit the estate granted to less than a fee simple, and its omission in the devise to James, where a fee is intended to he granted, shows the meaning attached by testator to the word “ heirs,” and that he used it synonymously with children, introducing it in the devise to John, in connection with the proviso, to give the devisee but a life estate, while it is intentionally rejected in the devise to James, to vest in him an absolute fee.</p> <p>Again, in the next clause, by which testator confirms to his son Robert a farm personally conveyed to him, by deed, subject to the payment of four hundred dollars, the word “heirs” does not occur, although the intent and effect of the language used is to give Robert a fee simple.</p> <p>In conclusion, after testator had disposed of his whole estate to his children and grandchildren, he directs his executors to “ pay over the usual legacies, stated in this my will, to the several heirs as mentioned,” thus designating his children and grandchildren, the objects of his bounty, by the word “heirs.”</p> <p>From an examination of the whole will, we cannot avoid the conclusion, that the testator by the word “heirs,” when it occurs in his will, intended his children and his grandchildren. That he used the term in its popular, and not in its technical and legal sense. If, therefore, we substitute “children” for “heirs” in the devise to John, it gives him an estate for life, with remainder in fee to his children, and thus harmonizes the first clause with the proviso annexed, and gives effect to the intention of the testator by preserving the fee simple for the children of John.</p> <p>Judgment for defendants.</p> <p>Error was assigned to the entry of judgment for the defendants.</p> <p>When a testator uses terms having a legal signification, it should be presumed that he knew their legal meaning, and they should have a legal interpretation: 2 Powell on Devises 2-3. A devise in fee without the power of alienation, is a contradiction in terms, and the qualification is inoperative: 1 Bos. & Pul. 192; Preston on Estates 264; 10 Johnson 19, Jackson v. Bull; 15 Id. 191, Jackson v. Robin.</p> <p>There is nothing in the will to indicate the intention of the testator to give to his son John less than a fee, but on the contrary all else in the will show's clearly his design to equalize his children. This farm he gives to John at the value of $800, and adds $200, making it $1000.</p> <p>By the next clause in his will he gives to his son James another farm valued at $800, and adds $200, making $1000.</p> <p>By the next clause he gives to his son Robert a farm valued at $1400, directing him to pay $400, making his share $1000. These were his three eldest children, whom the testator manifestly intended should share his bounty equally.</p> <p>In the use of the word heirs in a will, it may be a proper inquiry whether the word was used in its strict legal sense, or in any other; and if it were used in its popular sense, that sense should he sustained: 2 Wm. Blackstone 1010; 1 Broom’s Legal Maxims 154; 7 Scott's N. R. 60-61; 5 B. & C. 48; 3 Peters 346. In this case the testator has not stopped with the qualification or limitation, hut he devised the land to John’s children. In the use of the term heirs he meant children, viz. the children of John: 17 Ser. & R. 441, Caskey v. Brewer.</p> <p>The devise to the heirs of John was merely a consequence of what would have been the case if the devise to John was in fee.</p>

This was an action of debt, brought by John B. Stewart against The Perry County Mutual Eire Insurance Company, to recover amount of loss by fire, on policy of insurance issued by defendant. Defendant pleaded non est factum, payment with leave, and special pleas. Plaintiff replied non solvit; issue.

<p>Appeal by Christian Seibert, trustee under the will of Henry Hirsch, deceased, from the decree of the Court of Common Pleas, of Berks county, ordering him to pay $114.88 to Jacob S. Livingood, guardian of William Roland and Rebecca Roland.</p> <p>The said Christian Seibert was appointed trustee of Margaret Roland by the will of her father, Henry Hirsch, dated 10th December, 1824, and proved 25th September, 1880. The will provided that after the sale of his real and personal property, the money arising therefrom should be divided among his three daughters Elizabeth, Justina, and Margaret (intermarried with Samuel Roland), the said Margaret to have the benefit or interest of the same for her separate use. He devised to Christian Seibert the third part of the estate, to hold the same during the life of Margaret, he to allow Margaret to receive the interest yearly of the said third part. After the decease of Margaret, the said third part to be divided among her children, share and share alike, as they arrive at the age of 21 years. The said Christian Seibert was appointed sole executor of the will.</p> <p>Margaret Roland died on 20th May, 1844, leaving a husband and eight children, of whom Emeline, William, and Rebecca were three, and were minors. October 12, 1848, Seibert’s account as executor was filed, which was confirmed in January, 1849. The balance against accountant was $2766.17, each of the minors’ shares being about $533.23. In August, 1849, the Orphans' Court, on petition of the guardian, decreed that the sum of $150 be paid for the past support of JUmeline, and of the said William and Rebecca, and the interest on the fund due to William and Rebecca to be applied to their future support and education. In November, 1849, on petition of the guardian, the Court of Common Pleas of Berks county awarded a citation to Christian Seibert, and on 23d February, 1850, the said Court decreed that Seibert should pay to Livingood, the guardian of William and Rebecca, the sum of $100 for their past support, and $14.88 interest. The application as to Emeline, who was married, was held under advisement. May 11, 1850, the Common Pleas awarded against Christian Seibert a writ of execution in the nature of a writ of fi. fa. to levy the $100 and $14.88 and costs, which was levied, and the amount was then paid.</p> <p>Christian Seibert appealed from the decree.</p> <p>Exceptions were filed, viz.: — 1. The Court erred in making an order and decree that Christian Seibert should pay to Jacob S. Livingood, guardian of William and Rebecca Roland, the sum of $100, and $14.88 interest, and in awarding afi.fa. for the same. 2. The fi. fa. was illegal and erroneous.</p> <p>By the Act of 16th June, 1836, relating to the jurisdiction and powers of Courts, sec. 13, the Common Pleas has jurisdiction as to the control, removal, and discharge of trustees, and the appointment of trustees and the settlement of their accounts.</p> <p>See 1 Harris 501, Seibert’s Appeal, for report of another case arising under this same will.</p> <p>1. The legacy was contingent. It was not vested at the time the order was made. Therefore the wards of Jacob S. Livingood had no right to the money or any part of it: 1 Harris 501, Seibert’s Appeal. 2. The Court of Common Pleas could not in this way enforce a decree in the Orphans’ Court. If the decree in the Orphans’ Court was binding upon the appellant, the payment of the money could only be enforced by bill and subpoena in chancery, or by an action of debt, in the Court of Common Pleas, and not in this summary way.</p> <p>An action of debt will lie on a decree in equity for the payment of money only: 9 S. & R. 261, Evans v. Tatem.</p> <p>3. The Common Pleas had no power to make an order for a periodical allowance for the use of the minors. That power belongs only to the Orphans’ Court. That power was conferred on the Orphans’ Court for the first time by the 13th section of the Act of 29th March, 1832. The Orphans’’ Court is to make the direction, but that Court cannot compel a third party to pay the money in the summary way pursued in this instance. This appears from .the 2d section of the Act of 13th April, 1840, relating to Orphans’ Courts. The proceeding under the Act of 16th June, 1836, is a chancery power, and the proceeding must be by bill and subpoena: 2 Wh. Rep. 330, Ex parte Hussey.</p> <p>4. The Court had no authority to issue the fi. fa. It was not a proceeding in equity: 2 Ser. & R. 58, Cassel v. Duncan; 8 Id. 296, Cassel v. Cook.</p> <p>5. Restitution is asked for.</p> <p>He referred to Act of 16th June, 1836; to the 28th and 19th. sections of the Act of 14th June, 1836, relating to assignees and other trustees ; to 334 section of same Act, and to the 57th section of the Act of 29th March, 1832, relating to Orphans’ Courts. He contended, that though according to Brown’s Appeal, 2 Jones 333, the Orphans' Court may have power over trusts like this, yet as this trust is conferred on Christian Seibert nominatim, and not as executor, the Common Pleas have concurrent jurisdiction: 7 Barr 459, Wheatly v. Badger.</p> <p>It was immaterial whether the execution issued out of the Common Pleas or Orphans’ Court, the material question was whether in such a case a chancellor would exercise his power to decree for past or future maintenance. That such an exercise' of power was proper, he referred to 4 John. Ch. 104; 2 Ashmead 210; 1 Id. 344; 1 Mad. 274; 2 P. Wm. 23; 2 Id. 419; 3 Atk. 308; 1 Bro. C. C. 268; 1 Vernon 255; 10 Barr 15.</p> <p>He contende, notwithstanding the decision in Seibert’s Appeal, 1 Harris 501, that the legacy in this case was a vested legacy. In that case the minor who died was unmarried. But another of the minors is married and has issue. If she dies before attaining the age of 21, is her issue not to share the bounty of its grandfather ? He referred to 5 W. & Ser. 517, Reed v. Buckley; 2 Ashmead, 202; Gibson, C. J., in King v. King, 1 W. & Ser. 207; 1 Jarman on Wills 726; 1 Roper on Leg. 392-3; 10 Barr 237.</p> <p>But where the testator has placed himself in loco parentis, the interest on the legacy is applied for maintenance, whether the legacy be vested or contingent: 2 Ashmead 207; 4 Rawle 119; 2 Roper 199, 204. The legacy in this case is not given over, and the father is not of ability to maintain his children: 5 Ves. 194; 9 Id. 470; 10 Id. 45.</p> <p>In this case the legacies bear interest, and the allowance of interest is not forbidden by the will; and the interest or rents belong to them, even if there was a devise over: 10 Barr 15, Bayard v. Atkins.</p>

Error, to the Common Pleas of BerJcs county. An action of debt by Locke v. Hoffman was brought to January Term, 1852, No. 133. The writ was issued on 3d January. It was brought on a bill or note by Samuel Congdon on Hoffman for $486.21, payable six months after date, and accepted by Hoffman. On 3d February, 1852, defendant’s counsel entered a rule to choose arbitrators on the 20th February, and notice was served on the attorney of plaintiff.

<p>Error to the Common Pleas of Dauphin county.</p> <p>These were feigned issues directed by the Court of Common Pleas of Dauphin county, one between Worman & Stoneback, as plaintiffs, and Wolfersberger’s Executors, defendants; and the other between James, Kent & Santee, as plaintiffs, and the same persons as defendants.</p> <p>Levi Wolfersberger and Samuel Huntsberger, doing business in partnership in Harrisburg as merchants, began to apprehend, in December, 1851, that their creditors would press them, and in order to secure. those who had become their security when commencing business, they executed two judgment bonds on the 19th of December, 1851, one to the executors of Philip Wolfersberger, deceased, for $1045, payable forthwith, and the other to Jonas Huntsberger for $1044, payable forthwith. On these bonds judgments were entered on the same day, Nos. 138 and 134 of November Term, 1851, but no executions issued on them until the 2d day of January, 1852, when fi. fas. were issued, to January, 1852, Nos. 38 and 39, and the merchandise of the defendants levied on. On the 7th of January, 1852, the execution of Worman & Stoneback for $77, issued by a justice of the peace, was levied on the merchandise of the defendants by a constable. 1Vo other execution was at any time levied on said goods ; but the sheriff sold the goods, which proved insufficient to pay the two executions in his hands. The proceeds of sale, about $1800, were paid into Court under a rule, though objected to by the plaintiffs in these-two executions. The consideration of the two judgments confessed to P. Wolfersberger’s executors and Huntsberger was not disputed. James, Kent & Santee were also judgment creditors. An award in their favor was filed on 27th January, 1852, for $1961.39, and fi. fa. was issued 13th February, 1852. The debtors had not executed any assignment.</p> <p>Feigned issues were granted to try the right to the money in Court. In one, Worman & Stoneback were plaintiffs; in the other, James et al. were plaintiffs, and Wolfersberger’s executors were defendants. On the trial, the position was taken by James, Kent & Santee and other creditors, that if the defendants in the executions were in fact insolvent when they executed the judgment bonds to Wolfersberger’s executors, and to Huntsberger, that those judgments were'void in law, though the defendants in the executions had made no assignment.</p> <p>Pearson, J., charged the jury, inter alia, that if Wolfersberger & Huntsberger knew that they were insolvent, they had a lawful right to give a preference to certain of their creditors, unless they had intended to make- or did make an assignment.</p> <p>Error was assigned to the part of the charge referred to, and also to the answer to a point proposed on part of defendant; the answer being to the effect that “ as no assignment had been made, the proviso to the 4th section of the Act of 1849 has no application to the case.” May 4, 1852, a verdict was rendered in each case for defendants. It may be observed, that the said proviso has been repealed by the fifth section of the Act of 4th May, 1852. See Acts, p. 584.</p>

This was an action of covenant brought by Mary Hummel against George Heckerman, to recover certain arrears of ground-rent, which, as she alleged, were charged on twro lots of ground, Nos. 116, 116, in Hummelstown, Dauphin county. The declaration was in covenant, and the plea nil debet.

This was an action on the case, brought by the Dauphin Deposite Bank against Anthony E. Roberts and Henry M. Bayard. The summons issued April 17, 1851, and was served on A. E. Roberts the next day, in the city of Philadelphia, by the sheriff of Dauphin county; which service the Court below refused to quash or set aside, and this was, inter alia, assigned as error. The service was made under the Act of 14th April, 1851. See Acts, p. 612.

This was an action of ejectment, to November Term, 1848, by Thomas S. Wilson, Ann D. Wilson, and others, against David W. McCullough, John T. Green, and Thomas C. Miller, for two thousand and fifty acres of land.

<p>Error to the Common Pleas of TorJc county.</p> <p>This was an action of ejectment by John Meyer v. Michael Sehriver, John Lefevre, and others. A case was stated as if found by a special verdict, with'fight to either party to sue out a writ of error. The case depended on the construction of the devise of John Meyer to his widow, Elizabeth Meyer, whether it was in fee or for life only. See a history of the case in the case of Weidman v. Maish, reported in 4 Harris 504, &c., which does not differ in any material respect from the case stated in this suit.</p> <p>The will of John Meyer was dated the 2d' of September, 1827. It was proved on the 15th June, 1829. It contained the following provisions: — “ As to such worldly estate wherewith it has pleased Hod to bless me in this life, I give and dispose of the same in the following manner, to wit: Item: It is my will, and I order and direct that all my just debts and funeral expenses shall be first paid and satisfied. Item: It is my will, and I give, devise; and bequeath unto my beloved wife Elizabeth, 8'5 acres, and allowance of land of my dwelling plantation whereon I now live, situate in Spring-garden township, in the county aforesaid; she to have the choice of the same wherever she thinks proper; and further, I do give and bequeath unto my said wife all my movable property or personal estate, of what kind or nature the same may be, together rvith all the moneys due me, by bond, note, or book account, to and for her only proper use and behoof whatever. Item: It is further my will, that my brother and sisters divide the residue of my said plantation amongst themselves, share and share alike. And lastly, I nominate and appoint my beloved friends, Michael Sehriver and John Lefevre, of the township aforesaid, to be the executors of this my last will and testament, hereby revoking all other wills, legacies, and bequests by me heretofore made, and declaring this and no other for my last will and testament. In witness whereof, &c.</p> <p>“ Signed, John Meyer.” [Seal]</p> <p>The testator had no other real estate than the land devised. He left one brother, Jacob Meyer, and three sisters.</p> <p>The case of Weidman v. Maish was tried -before Lewis, J., who. held that the devise to the wife of the testator was in fee; but his opinion was reversed by the Supreme Court, 4 Harris 504, the opinion being delivered by Hibson, C. J.; Coulter, J., and Chambers, J., dissenting. In that ease only the l-44th part of the property was involved. Another suit was brought for John Meyer, another party claiming an undivided sixth part of the same land. The case stated in this suit concluded as follows:</p> <p>At the time of her death, the widow of the said John Moyer owned a house and piece of ground in Spring Harden township aforesaid, Avorth abou-t $400, and the inventory of her personal estate amounts to $5828.72.</p> <p>The brother and sisters of the testator, as well as the ■ husbands of the sisters, are all dead, and all of them left issue. The plaintiff, John. Meyer, of Spring Garden township aforesaid, is a son of Jacob Meyer aforesaid, who left two children, both of whom are still living. _ If Elizabeth Meyer, the widow of John Meyer, took under his will an estate in fee simple in the land devised to her, then judgment to be entered for the defendants for costs. But if the said Elizabeth Meyer took a life estate in said land, then judgment to be entered for the plaintiff for the undivided sixth part of said land, with costs of suit.</p> <p>The Court below entered judgment in conformity with the decision in Weidman v. Maish, in which it was held that the widow of the testator took only an estate for life ; that the words “ only proper use and behoof” are not words of limitation in a deed, nor did they import perpetuity in a will; that their meaning was vague, and as to the introductory words there was nothing in particular to which they could be attached, and that they were inoperative by themselves.</p> <p>It was contended : 1. That the intention of the testator, apparent from the face of his will and the circumstances in which it was made, was to dispose of Ms tohole estate, and to devise a fee simple to his widow, as the chief object of his bounty. 2. That the words “to and for her only proper use and behoof whatever” are equivalent in a will to words of limitation, and serve in this connection to carry the real and personal estate to her absolutely.</p>

<p>1. In a suit by an administrator, the relationship of a juror to the plaintiff is a good ground of challenge.</p> <p>2. An attorney at law has a right to recover from him who employs him whatever his professional services are reasonably worth; and, in a suit against him by his client, he hás a right to retain his fees in the case out of the moneys in his hands: the payment of the balance is all that can be lawfully demanded from him.</p> <p>3. By the Defalcation Act of 1705, no other plea than payment is necessary to let in a set-off. The jury in this case had the legal right to certify a balance in favor of the attorney. _</p> <p>_ 4. As to the rights and duties which spring from the relation of counsel and client, and the mode of proceeding in such cases, see the opinion in this case.</p>

<p>1. The right of partition is a beneficial incident of tenancies in common, but it may be waived by agreement of the parties in interest.</p> <p>2. At common law partition was confined to coparceners; but as the statute of 31 Hon. VIII. gave partition to tenants in common in like manner and form as coparceners by the common law are compelled to do, principles applicable to partition among parceners are applicable in Pennsylvania to partition among tenants in common.</p> <p>3. Under the 24th section of the Act of 25th April, 1850, relative to partition, the Courts of Common Pleas in Pennsylvania have equity jurisdiction ta compel accounts between tenants of lands containing coal, iron ore, or other mineral.</p> <p>4. Land containing iron ore was held in common by two persons and the heirs of another former owner, each holding unequal interests, a right to take ore for one furnace existing in another person, his heirs and assigns. An agreement in writing was entered into by the two owners and the guardians of the minor heirs of the other, that amicable actions of partition of Cornwall Furnace, Hopewell Forges, and the ore-banks before referred to, be entered, and appointing seven persons named, to make the partition; and providing that the ore-banks should be divided into three equal parts, and two equal third parts, considering quantity and quality, be assigned to the two adult owners, and one third part to the said minor heirs:</p> <p>Above a year afterwards, the persons appointed reported that the agreement could not be carried into execution without great injustice. It was afterwards, viz. on the 30th August, 1787, agreed in writing by the same parties, that, in order to remove all difficulties, persons designated should make partition of the furnace and forges aforesaid, and other real estate, “according to quantity and quality,” “ and assign the same according to the real interest and convenience of the several parties ;” but, providing that the ore banks belonging to Cornwall Furnace “ shall remain together and undivided as a tenancy in common," one of the parties to be entitled to three sixth parts thereof, another to one-sixth, and the said minor children to the remaining two sixth parts thereof; and declaring it to be the intent of the agreement, that neither of the parties, their agents or workmen, shall interfere with or interrupt either of the other parties at any mine-hole by them opened and occupied for the purpose of raising iron ore:</p> <p>In another clause it was provided, that a tract of land called Bingham’s tract, “ shall remain undivided for the present</p> <p>The entry of amicable actions of partition to carry out the agreement was provided for, and they were entered; and the persons appointed made report, allotting the furnace and forges, and reporting that the Bingham place, with a small tract of forty acres adjoining, and also the ore-banks and hills at Cornwall Furnace, do still remain undivided, to be held by the parties as tenants in common, according to their respective shares, and to the covenants and articles in the said agreements. This report was confirmed by the Court in 178?, and the parties entered on the purparts respectively assigned to them, and they and those claiming under them have since held the same; the right reserved to ore for one furnace also being exercised at the time of the institution of this action of partition:</p> <p>In an action of partition brought to August Term, 1851, to divide the ore-banks and mine-hills, it was Held, that the partition made in 1787 by the agreement of the parties in interest, and decreed upon by the Court, was binding on their successors in the title, not only because of the judgment of the Court under which they claim, hut because the covenants in the agreement in 1787 were real and ran with the land, though the words “ heirs and assigns” were not used. Even if the covenants did not so run with the land as to give a right of action to an heir or alienee, they would serve to rebut this action of partition. The agreement of 1787, and the judicial proceedings had thereon, constitute a bar to this action.</p> <p>5. The continuance of the mine-hills in common, after the covenants between •the parties and the decree of the Court, became the consideration for submitting to the •partition of the rest of the estate. The implied warranty which attends partition attached in this case; and if what was done as to the mine-hills is to he overthrown, it would destroy the whole of the partition. If the rest of the estate he held in severalty by virtue of the partition, by virtue of the same proceeding the mine-hills are to be held in common.</p> <p>6. The words “ shall remain together and undivided as a tenancy in common,” construed to mean a tenancy in common, not for the present, nor for ever, but as long as the objects and purposes of the covenant in which they occur are in process of fulfilment; aDd so far they bar the action of partition.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an amicable action by Philip Eisher and Elizabeth his wife, against Abraham Redsecker, entered to April Term, 1852.</p> <p>George Redsecker, in his will dated 16th May, 1838, declared that he had given to each of several of his children property equal in value to $1000 ; and in order that his daughter Elizabeth and his son Abraham should- have property to a like amount, he bequeathed to Abraham a house and lot of ground, to him, his heirs ¡and .assigns for ever, he or they paying thereout unto his daughter Elizabeth the sum of $500, in four equal annual payments, &c. He .also bequeathed to Elizabeth a house and lot of ground, to her, and her heirs and assigns for ever, at and for the sum of $500, which, together with the $500 to be paid by Abraham, makes the sum of ,$1000. The said sum of $500 was to be a lien on the house and lot willed to him until it was satisfied.</p> <p>In .a subsequent part of his will he directed that in case of the death ,of any of his children named, without leaving issue, their share or parts of his real and personal estate shall revert and become a part of the residue and remainder of his estate. He further directed:il And, as touching all the residue and remainder of my estate, of whatever kind or nature soever the same may be, I give and devise of the same unto my said nine children herein-before named, or the survivor or survivors of them; my express will and meaning is that my said nine children, or the survivor or survivors of them, shall have each equal shares of my real and personal estate.”</p> <p>Elizabeth was married to Philip Fisher. She was born in 1797, and was at the time of the stating of the case in the 55th year of her age, and had no children.</p> <p>The question submitted was, whether the $500 was payable to Elizabeth Fisher, without security being given for its repayment after her death, to the legatees named in the will. If the Court were of opinion that it was payable without security, or the intervention of a trustee, then judgment to be entered for the plaintiff. If otherwise, then for the plaintiff in such manner and upon such conditions as the Court may determine.</p> <p>The 49th section of the Act of 24th February, 1834, relating to executors and administrators, provides that, whenever personal property is bequeathed to any person for life, or for a term of years, or for any other limited period, or upon a condition or contingency, the executor of such will shall not be compelled to pay or deliver the property so bequeathed to the person entitled, until security be given in the Orphans’ Court having jurisdiction of his accounts, in ■such sum and form as in the judgment of such Court shall sufficiently secure the interest of the person entitled in remainder, whenever the same shall accrue or vest in possession.</p> <p>Long, J., decided that though the 49th section of the Act before recited, did not in terms apply to the case, yet, in accordance with its spirit, and decisions in analogous cases, referring to 9 Ser. 8; R. 409, King’s Administrators v. Diehl, he directed judgment for the plaintiff, execution to be stayed till security be given to the satisfaction of the Court for the performance of the conditions mentioned in the said clause of the will, upon the death of Elizabeth Fisher without leaving issue.</p> <p>The terms of the will indicate the intention of the testator to give to his daughter Elizabeth the sum in dispute, absolutely and without condition or restriction. The last clause of the will declares the will of the testator to be that his children shall have equal shares, which intention will not be carried out if the decision of the Court below is sustained. The Act of 24th February, 1834, does not apply to this case.</p> <p>This was a vested legacy in the legatees in remainder or those entitled to the residue of the estate in the event of the death of Elizabeth without issue: 6 Ser. & R. 29, King v. Diehl. In two inconsistent clauses in a will the latter shall stand: 2 Bla. Com. 379.</p>

<p>Error to the Common Pleas of Qumberland county.</p> <p>This was an action for usury, brought by Mehaffie v. Brestle, growing out of the purchase, by the latter, of a judgment against the plaintiff and his brother. The two Mehaffies were indebted on a judgment, amounting to about $777.28, and, their property being in danger of sale, the defendant was applied to for a loan of money. ITe agreed for the sum of $100 to advance the amount necessary. The sum of $100 was paid to Brestle or his counsel; the sum of $777.23 was paid to the attorney of the plaintiffs in the judgment, and the judgment was assigned to Brestle. On the same day his attorney obtained an amicable revival of the judgment. It was alleged by his counsel, in the Supreme Court, that the property of the Mehaffies was afterwards sold by the sheriff, and no more was claimed or received by Brestle than the sum of $677.23 advanced by him, and legal interest on that amount. The amount received by him was not, however, proved in the case.</p> <p>Watts, J., charged the jury that, if the defendant purchased the judgment from the plaintiffs therein, he had a right to do so at any price for which he could obtain it; but if his agreement was made with the Mehaffies, and was that he would loan them an amount sufficient to pay the judgment, and take a revival of it in his own favor for the amount of the debt and interest, which was to be a -lien on the defendants’ land, and for the payment of which he was to give time, and in consideration of which the Mehaffies were to pay the defendant $100, the transaction was within the statute against usury. That the facts were for the jury, hut he said, that if the assignment of the judgment was a mere device to avoid the appearance of an usurious contract, and there was, in point of fact, no purchase of the judgment, but that it was a mere loan by the defendant to the Mehaffies, for which $100 was paid, then it was usury, and the plaintiff was entitled to recover.</p> <p>Yerdict was rendered for the plaintiff.</p> <p>Error was assigned to the charge.</p> <p>Usury does not consist in the intent to talce, but in the actual taking: 4 W. & Ser. 115; 4 Id. 453, Lamb v. Lindsay. It is not committed by payment of a premium less in amount than the legal interest: till more than six per cent, on the loan is taken, the penalty is not incurred: 4 Harris 269, Oyster v. Longnecker; 6 Iredell 390. To constitute usury there must be a loan in contemplation of the parties; and a contract which, in its inception, is not affected by usury, cannot be invalidated by any subsequent usurious transaction: 7 Peters 103, Nicholas v. Fearson; 4 Alabama 128; 9 Peters 387; 2 Johns. Cases 60; 3 Id. 66; 15 Johns. 44; 3 Sandford’s Ch. Rep. 268.</p> <p>If a contract be susceptible of two constructions, one of which will bring it within, and the other without the statute against usury, the latter should be adopted: 3 Cowan 284.</p> <p>The plaintiff’s allegation was, that the money obtained from Brestle was 'a loan for a usurious consideration; and, if this were so, any device resorted to for the purpose of concealing the true' character of the transaction, would not protect the defendant from the forfeiture imposed by the statute. The following authorities were referred to to show in what usury consists: 1 Dallas 216; 3 Wilson 250, Loyd v. Williams; 4 W. & Ser. 453-4; Id. 115; Douglas 235, Fisher v. Beasley; 1 East 195; 2 Met. 211; 13 Ser. & R. 218; 12 Id. 46; 2 Dallas 92.</p> <p>referred to Douglas 235, Fisher v. Beasley. Also that the contract in this case was not complete when the suit was brought, as the judgment was not then paid.</p>

<p>Though an alteration of a promissory note which does not disturb its legal effect does not avoid it, yet, in a suit by the payee against the surety in a note under seal, it was held, that the alteration of the date of the note from 1836 to 1838, made at the request of the payee in the presence of the surety, but without his assent, avoided the note as to the surety.</p>

<p>Error to the Common Pleas of JBerlcs county.</p> <p>This was an ejectment to .August Term, 1840, by Edward D. Martin v. Isaac Ñalbach and John Gernandt, to recover a house and lot in Heading.</p> <p>Both parties claimed under Thomas Jones. Solomon Shearer obtained an award of arbitrators against Thomas Jones, on 21st January, 1831, and on appeal verdict was rendered in his favor on January 11, 1832, for $278.50. Under this judgment, the property in dispute, and other real estate was sold. The sale was made under an al. ven. ex. to November Term, 1832, and sheriff’s deed was made to Martin, the purchaser of the premises in dispute, which was acknowledged on 15th August, 1832. The property sold for $310. At this time Martin had a judgment in the same county v. Thomas Jones, for $660, entered on 11th January, 1831, on bond, with authority to confess judgment. On 12th October, 1832, the purchase-money of the premises in dispute was considered in Court, and, on motion of counsel of Martin, the Court granted a rule to show cause why Martin should not be permitted to take the money out of Court on his judgment. On 13th October, 1832, the rule was made absolute.</p> <p>At this time Gernandt had .a judgment against Thomas Jones, which was entered subsequent -to that of Martin, viz. on 13th January, 1831, for $460, as an indemnity for endorsing two notes. Jones died in 1836. An administrator was appointed to his estate, and he was substituted as defendant in the judgment of Gernandt, and a sci. fa. to revive the judgment was issued against him alone. Judgment wras taken, and on' ven. exp. to January Term, 1837, the premises in dispute were sold to Gernandt for $352; but the sheriff returned that the purchaser had failed to comply with the conditions of sale.</p> <p>April 13,1837, a rule was granted in favor of said John Gernandt, against the said Edward D. Martin, to show cause why a feigned issue should not be granted, to try the question whether the said judgment of Edward D. Martin against Thomas Jones was not obtained in fraud of the creditors of the said Thomas Jones. In January, 1838, said rule was made absolute.</p> <p>April 10,1838, the following agreement was entered into by the counsel of Edward D. Martin and John Gernandt:</p> <p>“ It is agreed that the issue directed by the above rule be entered, and that'Edward D. Martin be plaintiff, and John Gernandt defendant, and that no declaration be filed, and that the cause be tried upon the plea of payment, with leave to give the special matter in evidence, replication and issue.” Filed April 10,1838 February 25, 1839, verdict rendered in the feigned issue for the defendant, Gernandt. It was alleged, on part of the plaintiff in error, that this issue was tried in the absence of the plaintiff and his counsel. In January Term, 1839, an al. vend. exp. was issued on the judgment of Gernandt, as the administrator of the estate of Jones, and the premises in dispute were sold for $ 110 to Barclay, who received the sheriff’s deed, and assigned it to Gernandt on 25th February, 1839, the day on which the verdict in the feigned issue was rendered. Martin lived in the county of Philadelphia. In the. spring of 1840, Kalbach, the tenant of Martin, took a lease of the premises from Gernandt, and this ejectment was brought by Martin to August Term, 1840.</p> <p>On the trial of the ejectment, the record of the judgment of Shearer, and the sale of the premises under it, were given in evidence on part of plaintiff. It was also proved that Jones, by his tenant, was in possession at the time of the sheriff’s sale in 1832, when Martin purchased.</p> <p>On the part of defendant, the judgment of Gernandt v. Jones was given in evidence, and proceedings under it.</p> <p>It was .then offered to give in evidence the record of the order for the feigned issue, and the proceedings thereon and verdict, in order to show that the purchase of the premises by Martin was fraudulent and void. The Court admitted it, and plaintiff’s counsel excepted.</p> <p>On the part of the plaintiff, it was then offered to show that the verdict in the feigned issue was taken in the absence of the plaintiff’s counsel and of his papers; that the counsel was detained on the railroad on his way to Reading to try the cause; and also the character of the evidence which was received in the case.</p> <p>The evidence was rejected, and exception taken. This was the second bill.</p> <p>Jones, J., in his charge observed, that the feigned issue came to trial and resulted in a verdict for the defendant, Gernandt, “thereby finding that the said judgment of Martin v. Jones was in fraud of creditors.” That on part of the defendants it was contended that if Martin made use of his fraudulent judgment in acquiring such title as he has, it is void ab initio. He charged that if Martin were an innocent purchaser under the judgment of Shearer, that there might be force in the position that it would be immaterial that his judgment was afterwards discovered to be fraudulent; but he was not an innocent purchaser. He further charged that the judgment of the Court, awarding the purchase-money to Martin, was not conclusive; that fraud vitiates everything ; and if his fraudulent judgment was credited by a decree of the Court against the purchase-money, he acquired no title by his purchase and the decree of the Court.</p> <p>April 14, 1851, verdict was rendered for defendants.</p> <p>Error was assigned to the admission of the evidence of the record of the feigned issue, and to the rejection of the evidence as to it, offered on part of the plaintiff in the ejectment; also to the charge.</p> <p>He contended that the sale being made under a fair and valid judgment conferred title upon Martin. That the decree as to the purchase-money was a subsequent, collateral matter, affecting the sheriff and those entitled to it, but that the validity of the plaintiff’s title did not depend on the appropriation of the money. He referred to 2 Pa. Rep. 223, Stahl v. Hartman; 10 Watts 13, 30-1; 1 Baldwin 246; 2 Rawle 276; 3 Id. 394; 6 Id. 100; 7 Ser. & R. 199; 13 Ser. & R. 259-262.</p> <p>If a judgment creditor receives the proceeds of sale on a fraudulent judgment, the remedy of subsequent creditors is by action against the creditor who received it: 1 W. & Ser. 372; 1 Watts 252; 1 Id. 302.</p> <p>The verdict in the feigned issue was collateral to the purchase by Martin, and not so conclusive as to destroy the title acquired by that purchase. The- remedy of Gernandt was a suit against the sheriff for the fund which was substituted for the land: 1 Rawle 223; 2 Bin. 40; 4 Watts 286.</p> <p>That the judgment of Martin was fraudulent, has been judicially determined in the feigned issue. That verdict and judgment is conclusive.</p> <p>The decree of the Court as to the purchase-money was of Martin’s procurement. He got the deed by means of it, and the consideration being fraudulent, he acquired no title as to Gernandt: 1 W. & Ser. 299, Foulke v. McFarland; 2 Watts 66-7, Gilbert v. Hoffman; 7 Ser. & R. 230-6; 4 Watts 424; 6 Id. 86-9; 10 Barr 185-6; 1 Harris 369; 9 Barr 203 7 W. & Ser. 458; 6 Id. 29.</p> <p>The decree of the Court as to the purchase-money was not conclusive, in ejectment, that the debt was due: 4 Wharton 27, Posten v. Posten.</p>

<p>1. 'The covenant implied from the assignment of a bond is not a guarantee, but “that the assignee shall receive the money from the obligor to his own use; and if the obligee should receive it, then that the assignor should be answerable over for it.” When the assignor has dealt fairly, he is done with the bond and all responsibility arising from it.</p> <p>2. Two joint owners .of a furnace and lands being about to contract to sell the same, one of them agreed also to convey a tract of land which was his separate property. Bonds were taken from the purchasers; and in the same year one of the obligees, for a valuable consideration, by an instrument of writing, relinquished all his claim to certain of the bonds to his co-obligee. Above seven years after the assignment, suits were brought by the said coobligee on two of the said bonds, to which defence was set up on the ground of failure of consideration to part of the traet which had been thus separately owned. The cases were submitted to arbitration, and a compromise was made, leaving $1400 uneolleoted from the obligors, to await the result of the ejectment pending for such separate traet. To the written compromise the obligee who assigned was not a party, but it was alleged that he “ participated in and advised and assented to the compromise.” The plaintiff in the ejectment after-wards recovered a portion of the separate traet. In a suit against the assignor of the bonds by his co-obligee and assignee, for the whole of the amount left to abide the result of the ejectmgnt, it was lidd, that such assignor was not liable on his written relinquishment; that such participation, advice, or assent to the compromise did not impose any liability on him to his assignee. His express promise to contribute in consideration of the plaintiff's assent to the compromise, might have bound him; but his advice was not a circumstance to raise a promise by implication of law.</p>

<p>1. On a certiorari to the Quarter Sessions to bring up proceedings had, in a mode specially authorized, against a Canal Company, for diverting water from a mill, this Court is not at liberty to rejudge the judgment of the inquest; such certiorari does not bring up the evidence submitted to the inquest. The regularity of the proceedings is all that is examinable in this Court.</p> <p>2. The Union Canal Company constructed a dam across the Tulpehoeken creek, in 1827, by means of which the water of the creek was conducted into the canal. The assignees of the owner of a mill, and others, made an opening in the side of the dam, through which the water ran into the creek. The assignees afterwards sold to the petitioner, during whoso ownership a part of the dam was torn away by direction of the Canal Company, and rebuilt in 1850 or 1851, and the opening was closed. Held, that though the assignees of the former owner did not institute proceedings for the partial injury done, the person who was the owner of the mill when the new dam was erected and the opening closed had a right to petition for damages; that the erection of the dam was a now erection, for injury from which the then owner had the right to complain.</p>

Appeal by Francis S. IPubley and George Patterson, executors of the will of Joseph Burd, deceased, from the decree of the Orphans’ Court of Cumberland county. Letters of administration on the estate of John McGregor, deceased, were issued by the register of Cumberland county, on 26th December, 1814, to Joseph Burd and William Bard.

This was an appeal by the defendants, the President, Directors, and Company of the Bank of Pennsylvania, from the settlement of an account against the Bank made by the Auditor-General and State Treasurer, under the provisions of the Act of 30th March, 1811, relating to the settlement of public accounts. On the 15th April, 1851, those officers settled an account against the Bank, in which they stated a balance in favor of the Commonwealth of $51,068.75.

This was an action of ejectment by Charles Pleasants against James and William Ross, to recover the possession of the undivided half part of a tract of land in Augusta township, Northumberland county. Hugh Bellas alleged that he was the owner of the undivided half part of a certain tract of land, situate in Augusta township, Northumberland county, containing about 58 acres, in the possession of James and William Ross.

<p>In an action for medical services, evidence tending to show that the services had been rendered gratuitously, is no legal bar to the recovery; such evidence, however distinct it be, should be submitted to the jury.</p>

This suit was brought by James L. Graves against Cole, to recover the amount of a bill for boarding, made by his wife, while engaged in defending herself against a libel in divorce, filed by defendant against her, charging her with adultery, and while she was prosecuting a subsequent suit for divorce against him. Defendant and his wife resided at Tioga Village, a distance of seventeen miles from Wellsborough, the county seat.

This was an appeal from the judgment of a justice of the peace, in a suit by Thomas Johnson v. Benjamin T. Case, as obligor in a bond for the re-delivery of certain goods of J. T. Armstrong, which had been levied on by Johnson as sheriff, on an execution.

Error, to the Common Pleas of Tioga county. This was an appeal from the judgment of a justice of the peace in a suit by H. B. Graves and John H. Graves v. Angus Griffin and A. & J. Griffin. It was a suit on a note given by defendants to the plaintiffs for the difference in value between a yoke of oxen and a span of horses. The note was for $67.50, dated 15th February, 1847.

<p>1. The holder of a note apparently altered, must prove that the alteration was lawfully made before he can recover.</p> <p>2. A notiee of non-payment, sent to the endorser enclosed under seal and delivered by the messenger to one in the employment of the endorser, with directions not to -open it, is insufficient.</p> <p>3. The sufficiency of a notice sent by a third person, depends on what the messenger did, not on what he was instructed to do by the holder of the note; on the message that was delivered, not on that which was sent.</p>

This was an action by the executors of the will of Lecku Meylert, deceased, v. The County of Sullivan, to recover the sum of $250, the amount of tax which was imposed by the Act of 16th April, 1845, on every law for the erection of a new county, and which amount was paid by the testator after the passage of the Act for the erection of Sullivan county, in order that the Act should have effect.

This was an ejectment brought 5th April, 1850, by Richard Adams and Joseph Smith v. Henry W. Smith, to recover the possession of 195 acres of land. Both parties claimed under William Smith, to whom a patent for the land was granted on 15th July, 1812. One of the plaintiffs and the defendant were children of the said William Smith. The plaintiffs claimed by deed from the said William Smith and wife, of 21st September, 1847.

This suit was brought July 7, 1847, by Daniel Bailey against William C. Knapp, before a justice of the peace, on an instrument of writing, as follows : “Eor value received I promise to pay Ransom & Wallis, or the bearer, eighty dollars, on demand, with interest, without defalcation or stay of execution.

This was an 'ejectment by David Newman and Cordelia his wife, late Cordelia Dayton, John Dobbs and Sarah his wife, late Sarah Dayton, and Iienry McKinney and Jane his wife, late Jane Dayton, v. Samuel H. Dayton and Le Roy Cook. The ejectment was brought on 9th January, 1851, to recover 145 acres of land in Great Bend township, then in possession of said Dayton and Cook, the defendants. The plea was, Not guilty.

A case was stated to February Term, 1850, in relation to a claim by Edwin Dyer v. The Township of Covington, and the question submitted was, whether the township was liable for interest on certain orders held by the plaintiff.

The writ of error in this case was taken by Michael Meiser to the judgment of the Court of Common Pleas refusing to set aside an execution issued on a judgment against him. Jacob Eckhart died in July, 1841, and letters of administration on his estate issued to Sarah Eckhart and Jacob Martin. The latter settled an account and was discharged.

<p>Error to tbe Common Pleas of Luzerne county.</p> <p>This was an ejectment by John Koons against Stephen Steele, Lydia Steele, Polly Steele, and George Behee. The plaintiff claimed as assignee of a mortgage of Jacob Steele, and claimed to recover, in order to enforce the payment of the money payable under it.</p> <p>The ejectment was for 100 acres of land in Luzerne county. It was brought 5th April, 1845. The plaintiff deduced title from the Commonwealth, regularly into David Cumming, by warrant and survey in 1772, and patent in 1773; gave in evidence the will of Cumming, empowering his executors to sell. George M. Cumming, as executor, on 15th September, 1820, conveyed the same land to Jacob Steele, in pursuance of a written agreement between the parties dated 27th June, 1817, and took his bond and mortgage of same date, viz. 15th September, 1820, for the purchase-money. The mortgage, on 27th February, 1843, was assigned to John and William Koons, and on 14th March, 1843, William assigned to John. Jacob Steele died in possession of the land, about 1840 \ and the three first-named defendants were his widow and children, and Behee was their tenant. He also proved an entry on the lands by his surveyor, about 1818, and locating the tract, and that Jacob Steele assisted in the survey. Cumming, the executor, testified that nothing had been paid him on the mortgage. The mortgage was recorded on the day of its date. George' M. Oumming, as executor, also conveyed to the plaintiff, by deed dated 10th March, 1845.</p> <p>Defendants offered evidence that Jacob Steele went into possession of the tract in question about 1805, under his father-in-law, Stephen Harrison. That a small improvement was made by Jarius Harrison, in 1799, who left before Steele took possession. Objection was made that the ancestor of the defendants dying in possession, and under a mortgage, they could not set up an outstanding title against the mortgage, before eviction. The evidence wms admitted, and exception taken.</p> <p>It appeared by the testimony of the two Harrisons, that their father knew of Steele’s purchase from Oumming. This was also proved by the plaintiff; and under the whole evidence it was undisputed that he had knowledge of the purchase; but whether he assented to it or not, it was alleged there was conflicting proof.</p> <p>In 1825 Harrison brought an action of ejectment against Steele, Sutliffe, and another for 300 acres, and there wras a recovery by the plaintiff “ for the land described in deed from Cumming to Jacob Steele.” It was proven that Oumming had notice of that ejectment, and also that Steel did not attend the trial, .and never assisted in the preparation of the case. No hah. fas. ever issued on the judgment.</p> <p>The defendants showed a deed of Harrison to his grandson, Stephen Steele, in 1833, for 34 acres o.f the land, and the will of Stephen Harrison, proved in 1834, giving “ to Jacob Steele and wife, and her heirs, the farm on which they now live.” They also gave in evidence the deed of George M. Oumming, executor, to Jacob Steele, dated 15th September, 1820, acknowledged and recorded on the same day, for the land described in the mortgage. The mortgage was recorded on the same day as the deed.</p> <p>It was testified that after Steele married the daughter of Harrison, the former moved to the place, with the assent of Harrison, who told Steele he might go upon it and have all he could make. That Harrison had lines run including 300 or 400 acres, embracing the land in dispute, and that the father claimed the land till his death. His will was proved in 1834.</p> <p>The plaintiff’s counsel asked the Court to charge: 1st. That if the jury find that Harrison assented to the purchase by Steele of the Oumming title, or recognised the purchase afterward, the defendants are concluded by such assent or recognition, and the plaintiff must recover.</p> <p>2d. That if the jury believe that Stephen Harrison put Steele on the land, and told him he might have all he could make, no term or rent being fixed, and the latter, in the exercise of his discretion, determined to buy the Cumming title, and did buy it, and made a mortgage for the purchase-money, he could not afterwards set up an adverse title, to defeat an action of ejectment brought on the mortgage, but must surrender the possession or pay the purchase-money to the mortgagee. Nor could h'is widow and children, after his death, make such defence any more than he might have done.</p> <p>3d. That if Stephen Harrison put Steele into possession to keep it up for his benefit, intending to secure it to Mrs. Steele and her . children, and if before a title had matured under the statute of limitations, Steele purchased the Cumming title, with the knowledge of Stephen Harrison, and without knowledge by Cumming of his (Harrison’s) claim and interests, the running of the statute as against the Cumming title would cease, and thenceforth the possession would be under and according to the Cumming title. And if, as between Steele and Harrison, the purchase of the Cumming title enured to the benefit of Harrison, so that he might devise the land to Mrs. Steele and her children, the mortgagee may enforce payment of the purchase-money in this action of ejectment against Mrs. Steele and her children.</p> <p>The charge was not filed, but a memorandum as follows was sent up:—</p> <p>The Court charged the jury as desired in these points fully, and in a general charge, in favor of the plaintiff’s right to recover upon the grounds covered by the points. No exception was taken to the charge, so far as the Court were informed, and it was not filed.</p> <p>After the rendition of the verdict, the plaintiff’s counsel moved for a new trial, on the ground that the verdict was against the law, the evidence, and the charge of the Court. A majority of the Court overruled the motion. Wm. Jessup, P. J.</p> <p>Yerdict was rendered for the defendants. The assignment of errors did not appear on the paper-book received.</p> <p>He did not deny that the possession of the mortgagor was that of the mortgagee, but alleged that this principle was not applicable to this case; that Steele had no title in the land; that the jury have found that to be in Harrison. Steele was his tenant, and could not encumber his landlord’s title: Rankin v. Tenbrook, 5 Watts 386; 1 Barr 479.</p> <p>A purchaser from a tenant is in no better position than the tenant himself: 1 Barr 479; 6 Ver. 602; 6 Johns. 34; 3 Watts 449. The tenant must first surrender his possession before he can set up an adverse title.</p> <p>After Steele bought from Cumming in 1820, an ejectment was brought by Harrison v. Steele, in 1825, and recovery was had. This recovery was conclusive as to the bond and mortgage.</p> <p>A .writ of error will not be allowed where the verdict is against the direction of the Court. The remedy is a new trial: 6 Barr 128, Faunce v. Lesley.</p>

<p>This was a bill in Chancery, filed in the Supreme Court when sitting at Harrisburg, in June 1852. The case was heard at Sun-bury in July 1852. It was a bill filed at .the instance of William F. Packer, as President, and Simon Cameron, George F. Miller, and others, Directors of The Susquehanna Railroad Company, v. The Sunbury and Erie Railroad Company.</p> <p>It was alleged in the bill that the complainants were stockholders and proprietors of shares in the Susquehanna Railroad Company. That the said Company was incorporated under an Act of Assembly approved on the 14th April, 1851, with authority to construct a railroad connecting with the York and Cumberland Railroad, or with the Pennsylvania Railroad, on either side of the river Susquehanna, or on the Juniata, and with the right and privilege to connect the same with both or either of said railroads; and running through Halifax and Millersburg, in Dauphin county, to Sunbury, in Northumberland county. By the third section of the act it was enacted “ that if the said Company shall not commence the construction of said road within three years, and complete it in eight years from the passage of the act, the same shall be null and void, except so far as the same may be necessary to settle up the affairs and pay the debts of said Company Acts of 1851, 627-8. It was further alleged that subscriptions to the stock of the said Company to the amount of $450,000 had been made, and the necessary amount had been paid to the commissioners to authorize the issuing of letters patent, which were issued on the day of May last, viz. 1852.</p> <p>It was further alleged that an exploratory survey of a route for the said road, from Harrisburg to Williamsport, by the way of Sunbury, had been made by the commissioners appointed in the act; that a President and Directors had been elected, and the Company duly organized; and that a .corps of engineers were then surveying the route for the said road, with a view to the immediate location and the diligent prosecution thereof.</p> <p>It was further complained that the Sunbury and Erie Railroad Company have had surveyed and marked á line of railroad from the town of Dauphin, in the county of Dauphin, about eight miles north of Harrisburg, to Sunbury, and have, by their agents, entered upon the ground and commenced the construction of a road between Dauphin and Sunbury, to the injury of the Susquehanna Railroad Company. It was alleged that the Sunbury and Erie Railroad Company had no authority to construct the road in question at that time. The act for the incorporation of that Company, passed on the Bd April, 1837, authorized the construction of a railroad from the town of Sunbury to the harbor of Erie: Acts of 1837, 186-9. By the ninth section of a supplement thereto, passed 27th March, 1852 (Acts of 1852, p. 186), this Company was authorized “ to construct lateral and branch roads from the line of their road southward and eastward from Williamsport, to intersect any other railroads, by means of whieh the said Company may be enabled to form connections with the city of Philadelphia, by way of the valley of the Schuylkill, or as hereinafter provided, by way of the valley of the Susquehanna. Provided, That on any roa.d that may be made between Sunbury and Harrisburg, the same tax be and is hereby imposed as is now or may hereafter be imposed by law on the Susquehanna Railroad: And provided further, That if the Susquehanna Railroad Company shall fail to put that portion of the line of their road under contract between Bridgeport (which is opposite Harrisburg) and Sunbury, within one year from the passage of this act, and complete the same within two years thereafter, then and in that case the Sunbury and Erie Railroad Company is hereby authorized to extend their road from Sunbury by the valley of the Susquehanna, to connect with the Pennsylvania Railroad at such point as may be deemed most expedient by the said Company, on the same terms and conditions that they are now authorized to construct the main line of their road between Sunbury and Erie.”</p> <p>It was alleged in the bill that the Sunbnry and Erie Company had no right to construct a railroad from Sunbury to Harrisburg or Bridgeport, except in pursuance of the ninth section above in part recited. It was further alleged, that the construction of such a road by that Company would obstruct, hinder, and interfere with the road which the Susquehanna Railroad Company have authority to make. A writ of subpoena was asked for, and also an injunction to restrain the latter Company from proceeding to construct a road between Sunbury and Dauphin before the 27th day of March, 1853 (when the year would expire within which the Susquehanna Company were to put that part of their line of road under contract), or at any time whatever, provided the Susquehanna Railroad Company shall put the portion of their road between Bridgeport and Sunbury under contract before the 27th March, 1853, and complete it within two years thereafter.</p> <p>An answer on the part of the Sunbury and Erie Railroad Company was submitted, in which it was admitted that they had had a line of railroad marked out, from Sunbury to Duncan’s Island, above the town of Dauphin, and had by their contractors, &c., entered upon the ground. It was averred that it was not true, that according to the provision of the Act of 27th March, 1852, they were not authorized to construct a railroad between Sunbury and Harrisburg before the 27th March, 1853, nor until the failure of the Susquehanna Company to contract for and complete that portion of the line of their road within the times stated in the bill; but it was alleged that they were authorized at any time to construct such a road subject to the condition contained in the tenth section of the Act of 27th March, 1853, viz., that if they shall construct such a road, they shall make the towns of Dauphin, Halifax, Millersburg, and Georgetown, points on said road, which they designed to do. The tenth section referred to is as follows :—</p> <p>Sect. 10. “That if the said Company shall construct a railroad from Bridgeport or Harrisburg to Sunbury, under the provisions of this act, they shall make the towns of ‘Dauphin, Halifax, and Millersburg, in Dauphin county, and Georgetown, in Northumberland county, points on said road.”</p> <p>It was further alleged, that if the complainants were entitled-to any relief from a Court of equity, it should have been asked for by bill submitted on the part of the Susquehanna Railroad Company, and not by parties claiming to be shareholders or directors of said Company.</p> <p>The ease was argued by B. JET. Brewster, on part of the complainants. — It was stated that it was alleged on the part of the respondents that they had the right to commence the construction of the road in question presently, on the payment of a tax to the Commonwealth; and without the payment of a tax, provided the Susquehanna Company failed to put their road under contract within one year, &c. To this it was answered, that the 9th section of the Act of Í852, conferred upon the Sunbury and Erie Company the right to construct the road only on the failure of the Susquehanna Company to put the part of their road, designated in the act, under contract in one year from the passage of that act. Secondly, That if the ninth section of the Act of 1852 did, in direct terms, confer the power to occupy presently the line in question, that in interfering with and abridging the right of the Susquehanna Company to select a route, and impairing the obligation of a contract, the Act was unconstitutional. But it was contended that, according to the obvious meaning of the 9th section of the Act of 1852, the Sunbury and Erie Company were not authorized to extend their road below Sunbury until the failure, designated in the Act of 1852, on the part of the Susquehanna Company, occurred. It was alleged, that the charter held by the Susquehanna Company was a contract, and in support of the proposition, reference was made to the Dartmouth College case; also 4 Grill Johnson, Chesapeake Canal Co. v. Balt. R. R. Co.; 6 Wend. 95, Cayuga Bridge v. Magee; 6 Shepley 109; 12 Ver. 632; 11 New Hamp. 19; 8 Smedes Marshall 9; 7 Conn. 31; 2 Mass. 145; 3 Ired. Hq. 6.13; 1 Nott cf Me Cord 401; 2 Pa: Rep. 194; 1 Harris 139, Commonwealth v. Cullen.</p> <p>The case of the Charles River Bridge v. Warren Bridge Co., 11 Peters, was not a conflict for the same site for the construction of a bridge, but a dispute between two neighboring bridges for the tolls. In the law extending the charter of the Charles River Bridge Co., there was a reservation of the right to permit the construction of other bridges. In this case the Sunbury and Erie Company do not seek to construct a road lateral to that proposed to be made by the Susquehanna Company, hut they have it in view to occupy the same ground which has been designated for the road of the Susquehanna Company. The Legislature have no constitutional power to grant them such authority: 11 Peters 636.</p>

<p>Bor course of proceeding by auditors, and tbe mode of practice with regard to such reports, see the opinion in this case.</p>

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action on the case to July Term, 1852, by Leah Strohecker v. Hoffman, to recover from the defendant above $3000 which had been received by the defendant as attorney.</p> <p>The plaintiff was a daughter of John Garber, who died in Berks county, in 1819. His real estate was disposed of by proceedings in the Orphans’ Court, a part of which was taken by William Shannon (who was married to a sister of plaintiff), at the appraisement, and a bond for the plaintiff’s share théreof was given to the plaintiff and her husband, Daniel Strohecker. The estate of John Garber being indebted, judgments were obtained against his representatives, and the land which had been taken by Shannon was sold by the sheriff, the debts paid, and the balance paid into Court. The portion of the money coming to Leah Strohecker on her bond (her husband being dead), was claimed by the Farmers’ Bank of Reading. A feigned issue was formed, and was tried; was taken to the Supreme Court and decided against the Bank. The money was paid to the defendant on the day of March, 1841.</p> <p>The defendant set up as a .defence an alleged arrangement by the plaintiff and her three sisters with the defendant, that the latter was to collect all the money coming to them from their father’s estate, and also the Sharmon bond, and pay it over to the three sisters in consideration of their releasing their right to 48 acres of land in Northumberland county, which, it was stated, the defendant alleged was held as tenants in common by the four sisters. To prove this arrangement, the defendant produced the depositions of the three sisters, which were admitted under objections by the plaintiff. This was the first bill of exception. The witnesses had been released by the defendant from liability over to him.</p> <p>Daniel Strohecker, formerly the husband of plaintiff, owned a large landed estate in Schuylkill county. He permitted his father, John Strohecker, to sell his real estate and vest it in lands in Northumberland county. Accordingly 275 acres of land were purchased in Northumberland county from Grant’s executors, and conveyed in the names of John Strohecker and John Garber, the fathers-in-law.</p> <p>It was alleged that the greater part of the land in Northumberland county was paid for 'by the funds of Daniel Strohecker; and, by virtue of that and the statute of limitations, the 48 acres belonged to Daniel Strohecker’s heirs, and not to Leah Strohecker. Plaintiff sat this up to show that there was no consideration for the alleged arrangement with the defendant as testified to by her three sisters.</p> <p>In answer to a point proposed on the part of the plaintiff, the Court replied, that to constitute a valid agreement there must be a good and valuable consideration; and if the jury are satisfied that no such consideration passed to plaintiff from the sisters, the agreement as between them, would not be binding. The want or failure of consideration would avoid the parol agreement as between themselves (the sisters), but would not affect their agent, attorney, or trustee, if he acted in good faith, and collected and paid over the money in pursuance of said agreement, and the authority given him so to do. The settlement or compromise of a doubtful claim is a sufficient consideration to support an agreement concerning it.</p> <p>To another point the Court replied: There is no evidence that a written release was ever executed by her sisters to Mrs. Strohecker. But if they agreed that Mrs. Strohecker should remain in possession of the land on which she resided, or have the land without any claim from the three sisters, and she has so remained ever since without interruption by them or by their consent, the want of a formal release would not vitiate the agreement between themselves, much less affect the rights of the 'defendant in this action.</p> <p>And the Court charged, that “if the jury find that no agreement was made with plaintiff by defendant in relation to his compensation, then your verdict will be for the plaintiff for the amount received by defendant, with interest, as before stated, first allowing him a just and reasonable compensation for his services as her attorney in collecting the money in controversy.”</p> <p>Error was assigned to the admission of the sisters of plaintiff as witnesses; to the answers to the points, and to the part of the charge above stated.</p> <p>To the question as to the competency of the sisters of plaintiff, reference was made to 6 Barr 398. It was contended that they were substantially parties to the suit. Reference was made to 10 Barr 430; 1 Id. 441; 5 Id. 21; 5 W. & Ser. 509.</p> <p>To the latter part of the charge, reference was made to 4 Watts 420, Bredin v. Kingland; 7 Barr 376, Walton v. Dickerson.</p>

<p>Error to the Common Pleas of .Lycoming county.</p> <p>Two suits were brought' by J. II.. Woodruff and D. E. Calahan, administrators of the estate of William Calahan, deceased, against Samuel Dickinson, executor of the will of D. B. R. Dickinson, deceased; the one in covenant, and the other in assumpsit, for the same cause of action; viz., to recover the value of 186,678 feet of pine lumber, at $6 per thousand, and interest thereon from 10th April, 1842.</p> <p>On 26th February, 1838, William Calahan made an agreement in writing, under seal, with D. B. R. Dickinson, to sell to him all the white pine lumber that he could make at his saw-mill, near to the first fork of Pine creek, Lycoming county, from 'that time till 1st June, 1848; for which Dickinson agreed to pay to Calahan $6 per thousand feet, board measure, in cash, when taken away; the lumber to be estimated in the rafts. A further agreement was made as a part of the contract, but not reduced to writing, that Calahan should deliver, on an average, during the time above specified, at least 300,000 feet of lumber per year. An agreement was entered into on the trial, that the jury should pass upon the merits of the demand and defence, without regard to the form of the action ; and in case the verdict and judgment be for the plaintiff in the action of covenant, then the action of assumpsit to be discontinued, &c.</p> <p>In 1839, Calahan delivered under the contract 42,920 feet. In that year, viz., in August, 1839, Calahan sold his mill, hut he obtained possession of it again in 1841; and in that year delivered about 70,000 feet under the contract. This lumber was paid for. On 6th May, 1841, Dickinson died; and on 28th January, 1842, Calahan died. On the 10th April, 1842, the executor of the will of Dickinson received from the administrators, plaintiffs in the suit, 136,678 feet of boards, to apply on the contract. For the amount of this lumber, $820.06, and interest, these suits were brought.</p> <p>As a defence the defendant alleged, that the plaintiffs had not complied with the contract. That in August, 1848, Calahan sold his saw-mill to Archer, thus putting it out of his power to comply. That Calahan, in his lifetime, and his administrators after his death, refused to deliver the quantity of lumber called for by the contract. That the mill was capable of cutting 400,000 feet per year, and that the price of lumber at the mill on Pine creek during the five years would average $9 per thousand, at which rate defendant suffered a loss of $3 per thousand on the lumber to which it was alleged he was entitled.</p> <p>Anthony, J., observed, inter alia, that no provision appears to have been made for Archer to supply Dickinson with lumber under the contract between Calahan and Dickinson. A question then arises with the jury, whether this sale and delivery of the saw-mill by Calahan to Archer in August, 1838, was not entirely incompatible with the contract on his part. If Calahan broke the contract during his lifetime, then his administrators would only be liable in their representative capacity, on the ground of a breach of the contract by Calahan, the intestate, in his lifetime, and the responsibility of his estate for the damage sustained. But it is alleged by the counsel for the plaintiffs, that although Calahan, during his lifetime, did not deliver, on an average, 300,000 feet of boards per annum, the defendants, by accepting of 112,920 feet, wmived their right to receive more, and are not entitled to recover any damages, although the jury may believe the contract was impaired by Calahan.</p> <p>After a careful examination of the numerous authorities which have been cited by the counsel, the Court instruct you that under .•the agreement of the parties to'try the cause on its merits, it will be proper for the jury to allow the plaintiffs the amount to which they are entitled for the 136,678 feet of boards, at $6 per thousand : but if you believe William Calahan violated the agreement in his lifetime, by selling the saw-mill some few months afterwards to Archer, and by other acts which show an inability on his part to perform and comply with his agreement, and a manifest intention not to carry it into effect; and that he afterwards, a short time before his death, became owner again of the saw-mill, and delivered altogether about 113,000 feet of boards to Dickinson or his agent, under the contract, you have a right to ascertain the damages which the defendant, D. B. B. Dickinson, sustained in his lifetime, on account of the said Oalahan’s violation of the contract, and deduct the same from the price of the hoards, and if you are of the opinion that the amount exceeds the value of the boards, you may certify what sum you find for the defendant.</p> <p>Various points were submitted on the part of the plaintiffs. The first point and answer were as follows:—</p> <p>1st point. That the contract between Calahan and Dickinson is a personal, executory contract, and does not extend to the executors and administrators of the parties, and as both parties died before the time limited in the contract for the final execution or performance of the same, the administrators of Calahan are not in law compellable to perform the same, and are therefore not legally liable for the non-performance of said contract.</p> <p>Answer. The Court answer, that although the contract declared on and in evidence is a personal executory contract, and both parties thereto died before the time agreed on for the final termination thereof, yet, if during the lifetime of William Callahan, he violated the contract in such manner as disabled him from a compliance therewith, his administrators would be liable as representatives of his estate.</p> <p>. 5th point. That the lumber delivered to the defendant in the spring of 1842, formed part of the assets of the estate of William Calahan, deceased; that the cause of action in this suit arose subsequent to the death of William Calahan, and the defendant cannot set off a debt due to him from unliquidated damages arising from covenant.</p> <p>Answer. The Court answer, that under the declaration filed in this cause, as well as in the action of assumpsit, the plaintiff claims the amount due, according to the contract, and relies for a recovery by virtue of the contract of the 26th of February, 1838, between William Calahan, and D. B. R. Dickinson. As the claim, therefore, is in the plaintiffs’ representative capacity as administrators, and the defendant was sued in his representative capacity, as executor, although the lumber was delivered and received after the death of both parties, yet as the receipt for the lumber shows on its face that it was to be applied to the contract between William Calahan and D. B. R. Dickinson, the damages, if any, which were sustained by said Dickinson, in his lifetime, by reason of a violation of the contract by William Calahan, would be an equitable defence to the amount thereof, against plaintiffs’ claim in this suit.</p> <p>September 12, 1849, verdict for the plaintiffs, for $1185.25.</p> <p>It was assigned for error, inter alia: 5. The Court erred in saying, “A question then arises with the jury whether this sale and delivery of the saw-mill by Calahan to Archer in August, 1838, was not entirely incompatible with a compliance with the contract.” The Court should have instructed the jury on this as a matter of law.</p> <p>6. There was error in charging the jury that, “If Calahan broke the contract during his lifetime, then his administrators would only be liable in their representative capacity, on the ground of a breach of the contract by Calahan, the intestate, in his lifetime,” &c.</p> <p>7. The Court erred in their answer to the points submitted by plaintiffs’ counsel.</p> <p>The answer to the first point was erroneous, as it left the jury to infer, that unless Calahan actually disabled himself from a compliance with his contract, his administrators would not be answerable for its violation after his death. The Court treated the contract as a personal executory contract, dying with the parties. In this, it was alleged, there was error.</p> <p>The Court should have charged that the contract survived as to the administrators, and that they were bound to perform, or the estate was answerable in damages: Toller on Exrs. 158, 431; 2 Bl. Com. 302; Chit. on Con. 98; Story on Con. 215, sec. 275-6; 2 Pa. Rep. 130-1; 16 Ser. & R. 301.</p> <p>The answer to the 5th point, it was alleged, erroneously confined the jury to the damages, if any, which were sustained in the lifetime of Dickinson.</p>

<p>1. Parol evidence is admissible to show that a mistake was committed by the lessor in writing a lease, which was under seal, in stating that “a semiannual rent of three hundred dollars” was to be paid, instead of $800 per year, payable in half-yearly instalments, as had been agreed upon. In equity, relief would be granted against the lessor in such a case, and his assignee of the lease is in no better position.</p> <p>2. One partner, without special authority, cannot, by his execution of a lease under seal, bind his copartner jointly with himself.’</p> <p>3. Where the objection to a witness as interested, does not disclose his interest, there is no error in overruling it.</p> <p>4. An assignment that the Court erred in their answer to defendants’ points, without specifying in what the error consisted, is too vague to be considered.</p>

This was an amicable action, in which George Meixel, committee of George Royer, was plaintiff, and the executors of the will of John Royer, deceased, were defendants. The question involved was as to the right of the plaintiff, as committee of George Royer, a lunatic, to recover, for the use of the lunatic, certain money received by the executors.

<p>1. Customs which trench on the principles of the common law ought to he taken strictly.</p> <p>2. A party who relies on a local usage should prove distinctly that it has all the requisites of an established custom. It must be ancient, uniform, and notorious.</p> <p>3. A local usage, if it be ancient, uniform, notorious, and reasonable, may enter into and form part of a contract which is to be executed at the place where the usage prevails; but it must not conflict with the settled rules of commercial law, nor defeat the essential terms of the contract between the parties, whether such contract be express or implied.</p> <p>4. A common carrier, who received into his canal-boat certain household furniture to be carried from Lycoming county to Philadelphia, a portion of which became wet whilst in his charge, (no express contract existing limiting his responsibility), cannot show that a usage exists, in relation to carriers on the Pennsylvania Canal, that the dangers of navigation, fire, and unavoidable accidents, are excepted from the risks of common carriers.</p> <p>5. If the owner of goods intrusted to a carrier be guilty of any fraud or imposition towards the carrier, as by concealing the value or nature of the articles, or deludes him by his own carelessness in treating the parcel as of little or no value, or of fraudulent misrepresentation in regard to the value of the property, he cannot hold the carrier liable for injury to the goods sustained in consequence thereof.</p>

<p>Error, to the Common Pleas of Union eounty.</p> <p>This was a writ of error taken on the part of the defendants below, on a proceeding by scire facias on a judgment in favor of Jacob Wagonseller (since deceased) v. John Gundy, administrator, &c., of Michael Sanders, deceased; in which Jacob Sanders and others were named as terre tenants. The material question in the case related to the validity of a conveyance of land by said Michael Sanders to his children.</p> <p>Michael Sanders, on the 29th May, 1841, conveyed 150 acres of land in Union township to Mary, Lydia, and Elizabeth Sanders, his children, who resided with him, the deed expressing the consideration to be, his natural love and affection, and a further consideration of four hundred dollars. On the day of the execution of the deed an agreement under seal was executed by the daughters and the father, in which the said conveyance was referred to, and by which the daughters agreed that they, in consideration of the deed of conveyance, and in addition to the consideration-money mentioned in the deed, will support and maintain their father during his natural life, and also pay to their brother' Samuel $25.</p> <p>Michael Sanders, the grantor, died in November, 1841.</p> <p>On the 5th December, 1843, Jacob Wagonseller obtained judgment against John Gundy, as. administrator, for $39.13, before a justice of the peace. A transcript was filed in the Common Pleas December 7, 1843. No scire facias was served on the terre tenants of the land until the 25th January, 1850, above eight years after the decease of the debtor. A scire facias quare ex. non on the judgment was issued in the name of William Wagon-seller and another, executors of the will of Jacob Wagonseller, against Gundy, administrator, with notice to Jacob and Samuel Sanders and their sisters as heirs, &c., and terre tenants. The pleas were, payment with leave, and that defendants are not in possession of any lands bound by the judgment.</p> <p>The ease was tried in May, 1852, before Wilson, J. On the trial, in support of the money consideration expressed in the deed, it was, on part of the defendants, offered to be proved, that the daughters worked for their father during several years after they arrived at full age, at various kinds of work on the farm. No evidence of any previous contract by the father to pay for such service was offered.</p> <p>The evidence was rejected and exception taken.</p> <p>Another offer was made to prove out-door labour by the daughters for their father, and also work in the house, done after and before they were of lawful age. This was also rejected, and the rejection of the two offers formed the first and second bills of exception.</p> <p>After a variety of evidence was given, points were submitted on each side.</p> <p>On the part of the plaintiff two of the points were as follows : 1st. That the plaintiff by the entry of his judgment against the personal representatives of M. Sanders, deceased, thereby continued the lien of his debt for the period of ten years from the death of M. Sanders, upon the real estate of the intestate. 2d. That it is competent for the plaintiff within said period of ten years to bring in the heirs and terre tenants, and make them parties to the said judgment, and thereby charge the real estate of M. Sanders deceased, in their hands.</p> <p>These points were answered affirmatively by the Court in delivering their judgment on the special verdict.</p> <p>May 22, 1852, Wilson, J., charged the jury, inter alia, that the reservation of a support from his daughters expressed in the agreement, though not in the deed, rendered the deed fraudulent as to creditors of the grantor. He instructed the jury to render a special verdict as follows : “ That if in law the plaintiffs’ lien was continued against the estate of Michael Sanders, of which he died seised, by issuing their scire facias, then we find for the plaintiffs against the defendants and terre tenants and heirs served by the writ, the sum of $59.08. If in law the Court shall be of opinion that the said scire facias was not issued in time to continue the lien against the land in the hands of the heirs and terre tenants, then we find for defendants, terre tenants.” June 25, 1852, judgment for plaintiffs for the amount found by special verdict.</p> <p>Error was assigned to the rejection of the evidence referred to in the first and second bills of exceptions.</p> <p>2d and 3d. That the Court erred in their answers to the points. 4th. In taking the facts from the jury and deciding the cause as matter of law in favor of the plaintiff.</p> <p>The 24th section of the Act of 24th February, 1834, provides that no debts of a decedent, not secured by mortgage or judgment, shall remain a lien longer than five years from the decease of the debtor, unless an action be commenced and prosecuted within the five years; and the 34th section requires the heirs or devisees to be made parties. within the five years; in order to bind the estate.</p> <p>A conveyance by a father to his children is not fraudulent per se ; the question of actual fraud is for the jury.</p> <p>Where children continue with the father after arriving at full age, and perform labour or service without any contract, they have no legal claim for such service: 3 Rawle 243, Walker’s Estate; 5 W. & Ser. 513, Candor’s Appeal; 8 Barr 213, Hack v. Stewart. See also Lantz v. Frey and wife, 2 Harris 201; same case, 7 Harris.</p> <p>A conveyance by a father to his sons in trust to pay judgments on record, and for the maintenance of the father’s family, is fraudulent as to creditors: 2 Pa. Rep. 82; 3 Id. 83; 5 Id. 478.</p> <p>Where the facts are uncontradicted and amount to a fraud in law, the question is for the Court and not for the jury: 1 Rawle 252; 5 W. & Ser. 147; 10 Ser. & R. 419; 5 Watts 485.</p> <p>In regard to the question of lien, the following positions were taken: ■ 1st. That by obtaining a judgment against the administrator of the decedent within the five years from his death, the plaintiff acquired no lion on the real estate separate and distinct from the statutory lien of the debt itself. 2d. That the only effect of the judgment was to extend the duration of the statutory lien of the debt, for another period of five years, to be computed from the expiration of the first five years, during which it was a lien without a judgment; making ten years in all. 3d. That, if these positions are correct, then at any time during the continuance of the lien, it was competent to the plaintiff to make the heirs or terre tenants parties, and charge the land in their hands.</p> <p>The creditor is not bound under the Act of 1834 to proceed first against the heirs; he may proceed to judgment against the representative, and then obtain judgment de terris by scire facias against the heirs: 2 Barr 112, Atherton v. Atherton; 9 W. & Ser. 13, Benner v. Phillips.</p> <p>The limitation by the Act of the 24th February, 1834, of the lien of- a decedent’s debts to a period of five years, is extended to a period of ten years, by an action brought and judgment recovered against the personal representative alone, within the first period: 2 Harris 42, Schwartz’ Estate.</p>

<p>Error to the Common Pleas of Union county.</p> <p>This was an issue directed by the Court of Common Pleas of Union county, to determine whether Christina Shoch, the plaintiff, widow of Jacob Shoch, deceased, was entitled to recover the one-third of the personal property left by said Jacob Shoch at his decease, and dower in real estate, or either. The executors of his will were defendants.</p> <p>Jacob Shoch, on the 2d day of October, 1832, intermarried with Christina, the plaintiff in this issue. On the same day, but previous to the marriage, a writing was signed by them, purporting to be a marriage contract, in which it is stated that, in consideration of certain engagements on his part, she “ shall desire no more of Jacob Shoch’s estate.” On the 20th of January, 1849, said Jacob made his last will and testament, which, after his death, to wit, on the 18th day of December, 1850, was proved. In the will he bequeathed to her the interest of $1000, to be paid to her yearly, during her life or widowhood, being what was mentioned in the written agreement aforesaid. This she refused to accept; and after the year had expired from the time of her husband’s death, she had the executors cited to file an account. The inventory of the personal estate amounted to upwards of $10,000. They filed an answer, and the Court directed an issue to the Common Pleas, to try whether she was entitled to one-third of the personal estate, and dower in the real estate, or to either.</p> <p>In the marriage contract, Jacob Shoch agreed that he never would ask any property “ belonging to her children by her former husband, coming from their father or grandfather;” that if he should die before the said Christina, he would order his executors to put $1000 to interest, which interest she was to receive annually during the time she remained his widow.' He further engaged, that if he died before her, she should have the right to remove all the household furniture she may bring with her. She agreed to marry him on the terms stated in the agreement — declared that she was fully satisfied therewith, and that she would “ desire no more of Jacob Shoch’s estate than what is above mentioned,” provided he died before her.</p> <p>In his will Jacob Shoch bequeathed to his wife all the household goods she brought to him, which he then had; and also $60 annually to be paid to her during her life or widowhood. On the 15th February, 1851, she executed a release to the executors, in which she acknowledged the receipt of certain personal property, and also of $19, the value of certain hogs and sheep, and released the executors from all claim she had against the estate of the deceased, real or personal, or any right of dower therein; reserving, however, the right to the annual interest of $1000 during her widowhood.</p> <p>On the trial it was contended, on the part of the plaintiff, that the agreement of 2d October, 1832, purporting to be a marriage contract, was not binding. That it was void as being in restraint of marriage. That, if it is valid, it cannot affect her right to one-third of the personal property, as the word “ estate” has reference to nothing but the real property, and the only legal construction that could be put on the instrument of writing, would be to bar her right to dower.</p> <p>Wilson, J., instructed the jury, that the word estate, as used in the alleged marriage contract, included both real and personal property; and he directed a verdict for the defendants.</p> <p>Error was assigned to the admission in evidence of the marriage contract, of the will, the release, the receipt to the executors of the $19, and of evidence of the tender to the widow of $60 for interest; also of the bond showing the investment of $1000, as directed by the will.</p>

<p>Appeal from the decree of the Common Pleas of Northumberland county.</p> <p>Charles Freese, a storekeeper, having become indebted to Messrs. Hammer, executed a single bill in their favor, dated the 16th day of January, 1852, payable one day after date. It was entered in the Court of Common Pleas of Northumberland county, to January Term, 1852. A fieri facias was issued upon this judgment to April Term, 1852, by virtue of which the sheriff levied upon the merchandise in the store of Ereese. Ereese was present at the time of the levy, and made no objections to it. On the day of sale by the sheriff of the merchandise, and before the commencement of the sale, Ereese claimed the benefit of the $800 exemption law, but did not ask to have appraisers appointed, or select any particular property to be appraised. The sheriff sold the property, and paid the money raised upon the sale, after deducting costs, into Court for distribution. Freese claimed that $300 be paid him out of the money in Court. Jordan, J., decreed that amount to him, and the balance to the Messrs. Hammer. From such decree they appealed, and exception was taken to it.</p> <p>By the first section of the Act of 9th April, 1849, it is provided, “ That in lieu of the property now exempt by law from levy and sale on execution issued upon any judgment obtained upon contract and distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defendant and his family, and all bibles and school-books in use in the family (which shall remain exempted as heretofore), and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution, or by distress for rent.” i</p> <p>The second section of the Act of 1849 provides, “That the sheriff, constable, or other officer, charged with the execution of any warrant issued by competent authority, for the levying upon and selling the property, real or personal, of any debtor, shall, if requested by the debtor, summon three disinterested persons, who shall be sworn or affirmed, to appraise the property which the said debtor may elect to retain under the provisions of this Act, for which service the said appraisers shall be entitled to receive fifty cents each, to be charged as part of the costs of the proceeding; and property thus chosen and appraised, to the value of three hundred dollars, shall be exempt from levy and sale on the said execution or warrant, except warrants for the collection of taxes.”</p>

<p>1. Taxation is an attribute of sovereignty to be exercised by the Legislature in accordance with the constitution, but equality of taxation is not enjoined by the bill of rights.</p> <p>2. The Act of 3d April, 1848, authorized the commissioners of Bradford county to add $500 annually until 1857 “ to the usual county rates and levies of the borough of Towanda in said county, for the purpose of defraying the expenses of erecting the court-house and jail” then in the process of erection in that borough: It was held, that the act was constitutional; besides, as the erection of a court-house in the borough tended to produce an increase of business and an appreciation of property therein, its inhabitants were morally bound to contribute in proportion, and the Legislature could lawfully fix the proportion.</p>

<p>1. Residence, though necessary to constitute settlement, is not necessary to constitute adverse possession. The latter may be by cultivation •without enclosure, or enclosure without cultivation; and in every case without regard to the design of the occupant further than to resist an entry by any one else.</p> <p>2. But when it is by enclosure, it is necessary to keep up the building or fences, so as to prevent the place becoming vacant, or the ground being turned into common. An intention to resume a suspended intrusion is short of the requirement of the statute.</p> <p>3. Abandonment by a settler depends on his intention, but there is in this respect no resemblance between a settler and an adverse occupant. Therefore, in the case of an ejectment by one claiming under a regular warrant and survey against one claiming under an intruder, it was error in the Court to charge the jury that the mere failure of the intruder or of the claimant under him to occupy the land for one or two years was not such a breach of continuity of the possession as to avoid the running of the statute, and that something more than a mere failure to occupy, unaccompanied by any act showing cm intention to abandon, must be shown, or the statute will not be prevented from running in favor of the trespasser.</p> <p>4. An intention on the part of the trespasser not to resume the possession need not necessarily be shown in order that the running of the statute in his favor may be suspended. The fact of his surrender of the possession may be inferred from his evacuation of the premises and the ’other circumstances of the case.</p>

<p>1. A tract of unseated land was sold by the county treasurer for taxes, and was purchased by the county commissioners for the use of the county. In four years afterwards, a tract with the same description was sold by the county treasurer for taxes assessed after the first sale, and was purchased by an .individual. The owner did not redeem during five years from either the first or second sale, but about ten years after the first sale a redemption took place: It was held, that though the sale by the county treasurer, before the five years allowed by law for redemption had expired, was irregular, yet it was binding on the county, but it did not affect the right of the owner to redeem within five years from the first sale; but no redemption being made within that period, the title became vested in the purchaser at the second sale, if it were the same land that was sold at the two sales; and the redemption after the five years from the first sale did not revest the title in the original owner, or in those claiming under him.</p> <p>2. The effect of a redemption is only to divest the title of the county; and if, when the redemption in this case was made, the county had no title, the redemption had no effect.</p> <p>3. Assessment lists are not such records as import verity in themselves, especially where some material alterations in them are apparent and others are alleged, and the entries are manifestly inconsistent. The Court should not charge positively in regard to the identity of a tract, as to which such lists are offered, but they, with such other evidence as may be produced in connection with them, should be referred to the jury.</p>

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action on the case by Hugh Bellas v. Reuben Eagely and William Eagely, trading under the firm of Eagely & Co. The writ was served on Reuben Eagely only. Defendant plead non assumpsit. The case was tried in November 1848, and verdict rendered for plaintiff for $199.50. On a writ of error the judgment was reversed: see a report of the case in 5 Karris.</p> <p>The plaintiff afterwards, with leave of Court, filed two new counts, in one of which it was alleged, that in the year 1843, a certain William H. Kase was a partner with the said Reuben and William Eagely, and that in August 1844 it was agreed between the said Eagelys and Kase, that the defendants should take and possess all the property of the firm of Eagely, Kase & Co., and pay all of their debts; and the plaintiff averred that the defendants took the said property, and that the firm of Eagely, Kase & Co. were indebted to him in the sum of $190, &c.</p> <p>On the .trial, William K. Kase was called on the part of the plaintiff, to prove the alleged fact of his surrender of the partnership effects, and the promise by the defendants. He was objected to as incompetent on the ground of interest, &c. The Court admitted him to prove that he was a partner with M. $ W. Jhagely and others, and that such partnership was dissolved, and, when dissolved.</p> <p>Exception was taken on part of plaintiff.</p> <p>Jordan, J., charged, inter alia, that the arrangement with the three partners would not enable the plaintiff to maintain an action against two of them. That his claim in 1843 was against the firm of which Reuben Fagely was. a partner. That it was not changed by the dissolution and arrangement made at the time of the dissolution. If the Messrs. Eagely failed to pay the debts due by the firm of Eagely, Kase & Co., and Kase was compelled to pay them or any part of them, he could maintain an action against the Eagelys on their agreement; but that their agreement with Kase did not, in the opinion of the Court, relieve the plaintiff from the necessity of pursuing those who were originally liable to him. He charged that the case was not changed from what it was when before the Supreme Court, by the additional count since filed.</p> <p>Plaintiff’s counsel excepted to the charge, and asked that it be filed, the evidence to be made part of the record. April 8,1852, verdict for defendant.</p> <p>Error was assigned to the refusal to admit Kase as a witness generally, and limiting his competency to testify merely “that he was a partner with R. & W. Fagely and others, and that that partnership was dissolved, and the time when.</p> <p>Also that there was error in charging that the plaintiff could not recover on the last count referred to.</p> <p>It was contended that Ease was competent; that he was called to testify against his interest. If the plaintiff recovered, there might be a recovery against him by the Fagelys pro rata. He was willing to testify: 2 Yeates 163: Id. 324; 6 W. & Ser. 139, Heckert v. Fagely.</p> <p>Plaintiff could maintain a suit against the defendants on their promise: Gow on Part. 245; 2 Watts 104; 9 Barr 229; 3 Barr 331. A person beneficially interested can support an action on such a promise, unless he is a stranger to the consideration: 6 Watts 182, Blymire v. Boistle; Id. 349, Morrison v. Beckey; 1 Strange 592, and cases there cited.</p>

Pleas of Luzerne county. This was an action of trespass, by William Koons v. William Iloyt and Joseph Lukens, for cutting timber on a tract of land, containing 190 acres. Both of the parties claimed the land, each under a sheriff’s sale when sold under different judgments against John Koons. The sheriff’s sale to William Koons, the plaintiff, was made on the 15th November, 1842, but the sheriff’s deed to him was not acknowledged till the 23d January, 1844.

<p>.Appeal from the decree of tbe Common Pleas of Susquehanna county.</p> <p>This was an appeal by Mrs. Rose and others from the decree of the Court aforesaid, made in a proceeding in equity instituted by Edward W. Rose, Andrew H. Rose, and Robert H. Rose by his next friend Edward W. Rose, against William Jessup and Robert J. Niven, trustees under the will of Robert H. Rose, deceased, Jane Rose, widow of Robert H. Rose, deceased, Ann, who intermarried’ with William Maine, Ellen Rose, Caroline, who intermarried with Francis D. Ladd, and Emily Rose, daughters of said Robert II. Rose, deceased.</p> <p>The plaintiffs in the bill or proceeding were sons of Robert H. Rose, deceased, who died on the 24th day of February, 1842. On the 24th day of January, 1829, the said Robert H. Rose, by his last will and testament, devised all his real and personal estate to John L. Hodge and Andrew Bayard, as trustees, and directed, 1st. That they pay all his debts.</p> <p>2d. That after the payment of his debts “ the remaining part of his property should be divided in the manner prescribed by the Acts of Assembly, of the state of Pennsylvania, in the eases of those persons who die without having made a will.”</p> <p>Until the children should arrive at the age of twenty-one years, the amount of each child’s share was to be invested by the trustees for their benefit.</p> <p>On the 13th January, 1830, the said Robert H. Rose added the following codicil to his will, to wit:</p> <p>“Having reflected on the provisions of my will as within set forth, I think it necessary to provide for the additional expense which necessarily must arise from the situation in which my sons are likely to be placed, and therefore think it proper to add this statement: That it is my will that my estate shall be divided into certain parts according to the number of my children, and of the parts necessary for the purpose, and that of such parts each of my sons shall receive two and each of my daughters one part of said estate, to be regulated and apportioned by the within-named executors or their successors.</p> <p>“R. H. Rose.” [l. s.]</p> <p>“ Note. — The above and foregoing is not intended to oblige my children to hold separately, but they and their mother, if it should be preferred, may hold their interest jointly.</p> <p>“R. H. Rose.”</p> <p>“As Andrew Bayard, named in the foregoing instrument, is dead, I appoint Andrew Hodge to act as trustee in his place.</p> <p>“R. H. Rose.</p> <p>“22d January, 1838.”</p> <p>On the 5th January, 1841, the said R. H. Rose made a further codicil, as follows:</p> <p>“It appears to me desirable that the estate known as “The Reservation’ should remain for one generation at least in the family that first settled it, and form a home for such of my children as may wish to reside on it; therefore, at the desire of their mother, I give it to the boys, with the condition that it be not sold during their lives or the lives of their sisters. And that during the lives of their sisters, they (the sisters) shall be entitled whenever they choose to reside on it, to be entertained liberally and free of all expense to them by their brothers, hoping that as there has been great affection between all the members of my family, such affection may continue unabated throughout their lives. R. II. Rose.” [l. s.]</p> <p>“The Reservation” consisted of about 4000 acres, and upon it the family mansion (since consumed by fire and not rebuilt) was situated. Mrs. Jane Rose, the widow, elected to take under the will.</p> <p>The debts of the testator were paid after his death.</p> <p>William Jessup and Robert J. Niven were duly appointed trustees under the will, and William Jessup was the attorney in fact of J. L. Hodge, the executor of the will.</p> <p>At the time of the death of the testator, a large portion of the estate consisted of lands which had been sold by contract to various settlers thereon. Some of the settlers, prior to his death, and others, since that time, left the lands contracted for by them, and are insolvent. Some of these lands were resold by the trustees at a less price than the amount due under their respective contracts, apd others are uncultivated and remain unsold.</p> <p>The contracts between R. IT. Rose and the purchasers generally, were to the effect, that on condition that (the purchaser) pay to R. II. Rose (a sum stated), the interest and one-tenth of the principal, to be paid each year till the whole be paid, the purchaser was to be entitled to the land described. The contracts were signed by the parties.</p> <p>The questions raised by the bill and answer upon the foregoing facts were,</p> <p>1st. Are the above stated contracts real or personal estate ? If real, what interest has Mrs. Rose therein ?</p> <p>2d. Is “The Reservation” to form a part of the whole estate, and be valued as so much of the share belonging to the sons, or is it a specific devise, and not to be considered in dividing the estate ?</p> <p>3d. What interest, if any, has Mrs. Rose, the widow, in the reservation ?</p> <p>The Court below decreed,</p> <p>1st. That the widow had no interest in the contracts before referred to as personal estate, but only a life interest in one-third of the same as real estate.</p> <p>2d. That the reservation formed no part of the principal estate, and was not to be taken into account by the trustees in making a division under the will, and that Mrs. Rose had no interest therein.</p> <p>From this decree Mrs. Jane Rose and the daughters and the trustees (proforma) appeal.</p> <p>That the proceeds of the land contracted to be sold, were to be treated as personal estate, reference was made to 1 W. & Ser. 160; 3 Barr 377; 7 Watts 143.</p>

<p>Error to tbe Common Pleas of Lycoming county.</p> <p>This was a suit to September Term, 1848, by Antes and Clark, against A. Cummings and Gamble, to recover the amount of certain acres of land, at three dollars per acre, which amount of land had been recovered from Antes and Clark, by Tenada and Vandyke, in two actions of ejectment.</p> <p>Cummings had claimed two tracts of land in Nippenose valley, Lycoming county, warranted in names of Caleb Cash and Thomas Cash. Samuel Gibson had made an improvement on those lands, and had a survey of a subsequent date laid on the Cash surveys. The plaintiffs, Antes and Clark, became interested in the improvement, and in order to arrange the title, articles of agreement were made, dated 15th October, 1836, by which Cummings-agreed to sell to Antes and Clark, 400 acres, with the allowance, out of the aforesaid tracts of land, being the 400 acres and allowance surveyed on a warrant to Samuel Gibson, and to convey in fee, with warranty, on or before the first day of April following, viz., 1837.</p> <p>Two hundred dollars were paid on account, and a deed, dated 9th January, 1839, was executed by Cummings and wife to Antes and Clark for the tract of land surveyed in the name of “ Samuel-Gibson” (being part of two tracts of land, one of which was surveyed to Thomas Cash, the other of which was surveyed to Caleb Cash), containing four hundred and thirty acres ten perches and' allowance. This deed was not delivered till 2d February, 1839.</p> <p>On that day (2d February, 1839), Antes and Clark, by an agreement under seal, acknowledged the receipt of the deed by Cummings and wife, and agreed that if the Gibson survey should' include more than 400 acres, with the allowance of six per cent., that they would pay to Cummings $13 per acre for the excess, whenever the lines were so fixed as to determine the excess, if any existed.</p> <p>On the same day (2d February, 1839), Cummings and Gamble, by writing under seal, became bound to pay to Antes and Clark three dollars per acre for each and every acre of land included in the Gibson survey, and within the lines of the two Cash surveys, which shall be recovered by Venada and Vandyke by two ejectments then pending.</p> <p> On this last paper the suit was founded. </p> <p>On the part of the plaintiff evidence was given that the Venada and Vandyke surveys interfered with the Cash survey and the Gibson survey; that the interference of one amounted to 17 acres and 105 perches; that of the other to 34 acres and 120 perches, in all 52 acres and 55 perches and allowance.</p> <p>There was in the Gibson survey, exclusive of the interferences claimed by Venada and Vandyke, 400 acres 72 perches and allowance.</p> <p>On the part of the defendant, it was offered to prove that the bond of indemnity on which the suit was founded was given to indemnify Antes and Clark, the plaintiffs, for any loss of land by the ejectments, for which they had paid.</p> <p>Also, that the parties agreed that the actual quantity contained in the lines of the Gibson survey was not correctly known on the 2d February, 1889, and that only 400 acres and allowance had been purchased by Antes and Clark under the first agreement; and that only that quantity was claimed by them until they purchased the excess at $18 per acre. This was offered to explain the two agreements of 2d February, 1839. It was objected to, as going to contradict the writings under seal, and was rejected.</p> <p>Defendants offered to prove that the price of $3 per acre was fixed by the parties by a calculation of the price of 400 acres at $1000 and the addition of the interest, for the purpose of showing that the bond was to indemnify Clark and Antes against any loss of land out of said 400 acres and allowance, then paid for.</p> <p>Objected to, as contradicting the bond and deed, and because there was no ambiguity in the bond, and no allegation of fraud or mistake. Evidence overruled, and exception on part of defendants.</p> <p>It was also offered to prove that Clark, one of the plaintiffs, acknowledged, in 1841, that they had paid for 400 acres and allowance, and had a conditional bargain for the balance or excess of the survey at $13 per acre. That the price paid for 400 acres and allowance was $1000, and that was all that had been paid. Objected to and overruled.</p> <p>It was also offered to show by a witness, that before the 15th October, 1836, he surveyed the Gibson tract; that the plaintiffs were along, and knew the boundaries and contents of that survey. This was offered in order to show that the defendants knew its actual contents when they purchased it as containing 400 acres and allowance, and fraudulently represented said survey as containing 400 acres and allowance, and concealed the truth at the time the original agreement was made.</p> <p>It was objected on part of the plaintiffs, that the deed was a consummation of all previous agreements, and that it was not offered to be proved that there was any fraud or misrepresentation at the time of the execution and delivery of the deed or of the bond. Objection sustained, and exception taken.</p> <p>Pollock, J., charged that the verdict should be for the plaintiff, for the amount of their claim, viz. $251.</p> <p>Error wab assigned to the rejection of the evidence offered on the part of the defendants, and to the charge.</p> <p>The Gibson survey was represented by plaintiffs to contain 400 acres. They paid only for that quantity, and they agreed to pay $13 per acre for all that was over that amount. Why then should they be paid $3 per acre for what they had agreed to pay $13 ? The bond of indemnity was to secure them from loss ; to refund to them at the rate of $3 per acre for the difference, if the Venada and Vandyke surveys reduced the Gibson survey to less than 400 acres. If the land was lost, Cummings lost at the rate of $13 per acre. Must he lose $3 per acre in addition ? The Gibson tract contains 400 acres and 72 perches, exclusive of the interference, and so the plaintiffs lost nothing. The bond was, therefore, without consideration. The evidence offered was not to contradict, but to explain the agreements of the parties. It was admissible for explanation: 4 Rawle 130; or to show fraud: Id. 141; 1 Jones 233.</p> <p>The official survey of the Gibson tract contained 424 acres 83 perches and allowance. The whole of the tract was conveyed by Cummings to Antes and Clark, by courses and distances, with a covenant of general warranty, and calling for 430 acres 10 perches and allowance. The deed was the consummation of the article of the 15th October, 1836. As a portion of the land was claimed by Venada and Vandyke, the article of 2d February, 1839, and the instrument on which this suit was brought, were entered into. The consideration of the whole tract being a lumping sum, and the event of the suits pending doubtful, the parties agreed to incur a mutual risk. Why one party agreed to pay $13 per acre for all gained, and the other $3 per acre for all lost, is not a material inquiry. The land lost may have been of greater value. All parties were presumed to know the quantity called for in the official draft, and the deed shows this. There being no ambiguity or fraud, in the agreements of 2d February, 1839, alleged, and the deed calling for the zohole survey, the evidence offered would have been in contradiction of these instruments: 3 Ser. & R. 607; 4 Watts 442; 1 Id. 36.</p>

<p>1. The occupation of land by an intruder gives it the character of seated land only to the extent of the land claimed by him.</p> <p>2. The improvement of part of a tract of land by the owner, or by his tenant under a lease of the whole tract, makes the whole tract seated.</p> <p>3. The quantity of land improved by the owner or his tenant is immaterial, provided it be sufficient to show an intention to seat the tract.</p> <p>4. After a tract of land was seated, the county in which it was situate was divided by a line running through the tract and leaving the improvement in one county: Held, that this does hot give to the unimproved land in the other county the character of an unseated tract. The tract remained one tract, and the seating of a part was the seating of the whole, and no part of it was liable to sale for taxes as unseated.</p>

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action of trespass on the ease by Josiah Skinner v. The New York and Erie Railroad Company, for killing a cow belonging to the plaintiff, when upon the railway track; it being alleged in the declaration that the occurrence happened through the negligence of the engineer.</p> <p>It appeared that the cow in question was at large on a narrow piece of unenclosed land between the railroad and the public highway, about sunset in May or June, 1849, when the mail train came along, running at their usual rate, of from twenty-five to thirty miles per hour. When about one hundred yards distant the cow got upon the track; the whistle was- sounded, the engine reversed, and signal was given to apply the brakes; but the cow sprang on the track and the engine -ran over her, and one or two cars were thrown partly off the track.</p> <p>The witness for the plaintiff, who saw the accident happen, testified that the cow was about six rods from the locomotive when he first saw her on the track. lie also testified that the cow ran at large frequently; that he saw her often, and drove her off the track once or twice. He also said that a few days before the cow was killed, he told the plaintiff that he had driven her off the railroad.</p> <p>The engineer testified, inter alia, that at the time of the accident the train was running at the usual rate and regular time; that it was impossible to stop it after the cow got upon the track.</p> <p>The plaintiff’s witnesses thought the cow might be seen from thirty to one hundred rods, if she was on the track, or by the side of the track. It was also stated that the cow had pastured on the premises of one Caldwell, a considerable part of the time that summer; that the pasture was one quarter to half a mile from the railroad; and in coming from the pasture she would generally go fifteen or twenty rods from the railroad.</p> <p>The counsel for the Company requested the Court to charge the jury as follows, to wit:</p> <p>1. That if the jury believe that the damage in this ease was caused in any degree by the carelessness or negligence of the plaintiff, then he cannot recover, even though there were negligence on the part of the defendant.</p> <p>2. That if the jury believe that the plaintiff’s cow was suffered to stray upon the public highway, and that from thence she came upon the railroad track of the defendant, and was there run over and killed by the locomotive of the defendant, the plaintiff cannot recover, even though there were negligence on the part of the defendant. .</p> <p>8. That the plaintiff’s cow, under the evidence in this cause, was trespassing on the land and railroad track of the defendant, and therefore the plaintiff cannot recover, even though there were negligence on the part of the defendant.</p> <p>4. That the evidence in this case, as given by th'e plaintiff, discloses nothing from which an inference of negligence on part of the defendant can be drawn, such as will make the Company liable to damages in this suit, and therefore the plaintiff cannot recover.</p> <p>5. That the plaintiff, by the law of the land, was bound to take care of his own cow, and to keep her off the track and land of the defendant; and as he failed to do so, without any necessity for such failure, and the cow was killed while on defendants’ track, he cannot, under the evidence, recover in this case.</p> <p>6. That the fact, if believed, that he attempted to procure pasturage for his cow at Mr. Caldwell’s, forms no excuse for the plaintiff, and cannot affect the defence set up in this case.</p> <p>7. Under the law of the land, upon the evidence given by the plaintiff in this case, he cannot recover. He has shown no legal cause of action, and the verdict must be for the defendant.</p> <p>Jessup, P. J., charged in part as follows : — “ The cars, in this case, were travelling at the rate of twenty-five or thirty miles an hour, and that is the usual and ordinary rate.</p> <p>“ The defendants had an unquestionable right to run their road in tlm manner and at the speed usual on railroads, without being liable to any charge of negligefice, or any action for an injury which should occur therefrom, unless it could have been avoided by their servants. It was, certainly, as much for the interests of the defendants, as for the interests of those living on the line of the road, that they should not run over cattle. The danger to defendants’ property, as well as the lives of their passengers, would seem to demand great care in that particular, hut still they are bound to exercise the proper care, or they will be held responsible for injury.</p> <p>“ The counsel for the plaintiff claims that the defendants were bound to fence in their road with the lawful fence required by the Act of 1705, or they would be held responsible for the injury at all events. But the Court are of opinion that cattle are not ‘ free commoners’ upon public roads, as claimed by the counsel, so that they may be permitted to run at large, and depasture the public roads. The statute prohibits actions of trespass from being sustained unless the lands injured by cattle are enclosed by a fence of the prescribed height and dimensions; but it gives no license thereby to turn cattle upon the public roads. The only right acquired by the public to the roads, is the right of passage over them, and, for the use thereof, of amending and repairing. The rights of the owner of the land remain unaffected, except so far as the public has this right of passage. The fence laws, therefore, have no application to this case. The action is for negligently doing that which the defendants had a right to do, and involves two questions of fact for the jury.</p> <p>“ 1st. Did the defendants negligently conduct their car, and thereby kill the cow ?</p> <p>“ If so, they are liable..</p> <p>“ 2d. Did the negligence of the plaintiff in any way contribute to the accident'? If it did, he is not entitled to recover.</p> <p>“ The defendants’ counsel have desired the Court to charge the jury upon several points, and to them the Court reply:</p> <p>“.The first point has already been answered in the affirmative.</p> <p>“ The Court cannot answer the second point in the affirmative, for the case is to be decided upon the questions already stated, and the simple fact of permitting, for a limited period, the cow to wander on the adjacent public road, would not, of itself, be such negligence as to excuse all negligence on the part of the defendants.</p> <p>“ The third point is answered in the negative.</p> <p>“ To the fourth point the Court answer, that they decline to take the case from the jury upon this point as stated. If the defendant wished the benefit of this point, he should have demurred to the evidence. There is testimony in relation to the subject of negligence on both sides, and the jury must decide between them.</p> <p>“To the fifth point the Court answer, that if the plaintiff"knew his cow was wandering on the railroad, it was his duty to drive her therefrom. He had no right to suffer her to be there, and if he did suffer it, knowing her' to be there, he was guilty of such negligence as should prevent his recovery. But if his cow casually wandered away, ordinary care being used to restrain her, the simple fact of her being on the track, would not excuse the defendants’ negligence, and the question of whether he procured pasturage as stated in the sixth point, is only important as bearing upon the point whether the plaintiff contributed to the accident by his negligence.</p> <p>“ To the seventh point the Court answer in the same way as to the fourth, of which it seems to be but a repetition.”</p> <p>Verdict was rendered for the plaintiff for $25 damages.</p> <p>Error was assigned to the charge, and answers to points.</p> <p>It was alleged that there was no evidence of negligence; but that if there had been, the plaintiff had no right to complain, as he should not have suffered his cow to go upon the road: Cro. Jac. 158-9; 1 Cowen 78.</p> <p>The action should have been in trespass: 13 Vin. Ab. 161.</p> <p>The plaintiff cannot recover unless the injury is attributable entirely to the fault of the defendants. If the defendants were partly in fault, but if the plaintiff with care could have prevented the accident, the plaintiff cannot recover: 21 Wendell 188; Id. 615; 5 W. & Ser. 524; 6 Whar. 320; 6 C. & P. 23; 5 Id. 375; 5 Denio 255, &c.</p> <p>The question as to the plaintiff’s knowledge that his cow went upon the railroad, was not material. It was no excuse that the plaintiff exercised care and prudence to keep his cow within an enclosure: 5 Denio 255.</p> <p>The company would be liable for negligence, even when exercising a right: 8 Barr 366, Railroad Co. v. Yeiser. The cow was not a trespasser upon the road. She was kept at pasture, and let out in the evening to be milked, and if she was killed by the negligence of the engineer, an action would lie. There was evidence from which the jury might reasonably infer negligence. The company could have prevented the accident by fencing their road. They have merely the right of way, and should use it so as not unnecessarily to interfere with the rights of others.</p>

This was ejectment brought by James Rittenhouse and John Thomson against Barney Hole. The plaintiffs claimed the land in dispute under three several warrants, all dated 11th January, 1793, in the names respectively of Aaron Levy, Mary Lane, and Mary Weed. These warrants were duly followed the next year (1794) by regular surveys.

<p>1. A steamboat, out of which the cargo had been previously taken, struck a rock in the channel, and was sunk; but, by the exertions of the officers and crew, with the aid of extra hands, the boat was raised, and the loss was but partial. It was held, that the wages and provisions of the crew during the detention, were not to be estimated as a part of the damages in a suit by the owner of the boat against the insurers.</p> <p>2. A clause in the policy of insurance that, in case of loss or misfortune, the assured, his factors, servants, and assigns, shall labor and travel for, in, and about the defence, safeguard, and recovery of the vessel or any part thereof, to the charges whereof the assurers will contribute in proportion as the sum insured is to the whole sum at risk, does not apply to the crew, and does not vary the case.</p> <p>3. It is incumbent on the owner of a steamboat or vessel to employ a competent crew, who are bound to exert themselves to the utmost for the safety of the vessel; but when it is necessary to procure the assistance of more men, or of men of a different craft, in order to save or repair the vessel, the insurers are liable for such additional expense.</p>

<p>Error to tbe District Court of Allegheny county.</p> <p>This was an action on the case, by Church & Carothers, against F. H. Oliphant as endorser of a bül of exchange, as follows :—</p> <p>Springfield Furnace, June 15, 1848.</p> <p>Four months after date pay to the order of J. H. Duncan, two thousand dollars, at the Western Bank of Baltimore, without defalcation, for value received, and charge to account of</p> <p>J. K. Duncan.</p> <p>To Messrs. Calhoun & Harrison,</p> <p> Cumberland, Md. </p> <p>The bill was endorsed by J. H. Duncan, and successively by F. H. Oliphant, the defendant in the suit, by Church & Carothers, and others. The pleas were non assumpsit, and payment with leave, &c.</p> <p>The bill fell due on the 18th October, and, being protested for non-payment, was taken up by Church & Carothers, notice being given to Olip'hant, the endorser.</p> <p>In order to replace themselves in the funds required to meet the bill, Church & Carothers procured an accommodation note, at four months, for $2000, from Carothers, Miller & Co., which, being endorsed by J. K. Duncan and by Oliphant, was discounted by the Bank of Brownsville, and the proceeds remitted to Church & Carothers. This note, when it fell due, was also taken up by Church & Carothers.</p> <p>In regard to the acceptance and note it was testified, that when the bill became due, Duncan, the drawer, said the bill would not be paid, and he proposed getting a note of Church, Miller & Co. discounted. The note above referred to was obtained, and was discounted, and the proceeds, $1960, were, as stated before, sent to Church & Carothers, who had lifted the bill. The books of the plaintiff were produced, and they showed a charge, on the 25th October, 1848, to the account of J. K. Duncan, the drawer, of the amount of the draft, and also a credit for the proceeds of the note which had been discounted at the Bank of Brownsville. It, was testified, that as soon as Garothers saw the entry of the note in the books of the plaintiffs, yrhich entry had been made by the cleric of Church & Carothers, he said it should not have been charged to Duncan, as it was for his (Carothers’) own use.</p> <p>On the trial, various points were submitted on the part of the defendant, the third of which was, that if the note of Carothers, Miller & Co., discounted at the Bank of Browns'ville, was given as ¿ loan of the credit of the makers, to raise money for the purpose of enabling the plaintiffs to take up the bill of exchange on which this suit is founded, or of reimbursing them upon their having so done, and the money was so raised upon the endorsement of the defendant, and paid over to the plaintiffs, it amounted to a satisfaction pro tanto of the bill.</p> <p>Lowrie, J., refused to instruct the jury in accordance with this proposition, and to this error .was assigned.</p> <p>Verdict was rendered for the plaintiff.</p>

'This action was brought by B. Coursin against John Walker, Jr., to recover the amount of two promissory notes for four hundred dollars each, drawn by Hunter & Blackstock, to the order of B. Coursin, who endorsed and delivered them to William B. Walker.

<p>Error to the District Court of Allegheny county.</p> <p>It was a bill filed at the instance of Archibald. Neel v. John Neel, and Grrizella his wife, and others, to November Term, 1847.</p> <p>The bill set out that the title of both parties arose under the will of Thomas Neel, who died in 1829. Grizella Neel, the wife of John Neel, had a life estate under his will. She was the widow of Thomas Neel. She entered upon the premises under the devise, and afterwards intermarried with John Neel, one of the parties to whom the remainder was limited, to take effect upon the death of Grizella Neel. That Archibald Neel is also one of the parties to whom the remainder is limited. The clauses in the will under which the controversy arose are as follows: “ I do bequeath as follows to my dear wife: I give and bequeath my right and title of the landed property on which I live, &c. The landed property bequeathed to my wife during her lifetime, and at her death to fall back to my blood relations, my brothers and sisters.” The tract of land devised lies adjacent to the Monongahela river, and is accessible through land owned by John Neel and others, lying immediately in front of the same, and between the land devised and the river. During the life of Thomas Neel a coal pit was opened on the part of the tract remote from the river, and worked for family use and for the benefit of the neighbors; but it was alleged that a very inconsiderable quantity of coal was excavated. Thomas Neel cut and sold timber to some extent on the land.</p> <p>It was alleged, that after the intermarriage of John Neel with Grizella, he entered into contracts for the erection of railways on his own land, and the opening of two coal pits on the same, leading in the direction of and entering the breast of coal in the land devised to Grizella for life, and by himself and others excavated and sold a large quantity of coal, and is still continuing the excavation and sale, under the pretence that he is entitled to the same under the devise, and avers that he intends to continue said excavation. The coal underlies the tract in its whole extent, and is of great value, there being not less than one hundred acres of the same. Under the same pretence, John Neel has sold, wasted, and destroyed a large quantity of valuable timber.</p> <p>The complainant alleged that the acts of the defendants amounted to waste; that they are destructive to the interests of those in remainder. That the tenant for life has no right to open new pits, and work them for the purposes of sale, and has no right to cut timber to a greater extent than is necessary for the improvement of the farm and the purposes of agriculture.</p> <p>The complainant prayed for an account, and injunction to stay further working of the pits and cutting of timber; for an apportionment according to the relative interests of the parties; and for an injunction against any acts of the defendants that would interfere with such'apportionment; and for general relief.</p> <p>John Neel, the respondent, denied that he entered exclusively in right of his wife under the devise in Thomas Neel’s will, but that he claims title to said lands in his own right, and denied that complainant has any title to said tract. He also admitted that siderable timber on it at the decease of Thomas. But he alleged that two coal pits were open on the land in the lifetime of said Thomas; that one of said pits, to wit, that on the rear of the farm, was used for every practical purpose by the said Thomas. He took fuel from it for his own use, hauled it away and sold it to the neighborhood to a large extent, and used it for burning lime, &c.</p> <p>He also alleged that the other pit was open on the river at the time of his marriage, and he believes had reached the land of Thomas through the land held by Crawford before the decease of the said Thomas. He further alleged that the coal, taken from said lands by himself or tenants under the devise to his wife, was all taken from the same vein or stratum which was opened and in use by the said Thomas Neel. The quantity taken by one tenant for sixteen years past, when he made his first lease with him, is stated by the tenant at about 100,000 bushels per annum. The lease with the other tenant commenced in 1839, and he has taken out also about 100,000 bushels per annum, but a large proportion of this coal was taken from the coal bank on the river lots, the property of John Neel alone. That a large body of coal, more than half the tract, remains untouched.</p> <p>He also alleged, that much of the best timber on the tract was cut and sold by Thomas Neel in his lifetime, and though the respondent has used a good deal of it for the purposes of the farm, that a large part of it is yet standing on the premises. He averred that the timber taken by him and tenants was for fencing and building on the farm, and for props for the coal pits, and that no part of it was ever sold or removed from the premises.</p> <p>Lowrie, J., decreed, that the complainant was not entitled to injunction, account, or the relief prayed for, and an appeal from the decree was taken.</p> <p>The exceptions taken to the decree were as follows:</p> <p>1. That tenant for life has no right to open new pits on the tract; and if he has, has no right to work them except for his own use and for the uses to which the original pit opened by the 'testator was worked.</p> <p>2. That if entitled to open new pits and work them for the purposes of general sale, that the plaintiff is entitled to a decree-that the subject-matter be referred to a Master to ascertain the relative value of the respective interests of the tenants for life and those in remainder, and to have the same apportioned, and for an injunction prohibiting the tenant for life from going beyond the apportionment.</p> <p>3. That he is entitled to an account for the general purposes of his complaint, and for the additional purpose of ascertaining whether the respondents have not already excavated an’ amount whether the respondents have not already excavated an amount of coal beyond the amount to which they would be entitled under an equitable apportionment.</p> <p>4. To similar decrees in relation' to the timber.</p> <p>5. To such other relief as in equity, good conscience, &c., he ought to have.</p> <p>Chancery will interfere where the tenant affects the inheritance in an Unreasonable and unconscientious manner, even though the tenancy be without impeachment of waste: 4 Kent 78; 3 Atk. 94; 2 Vern. 738; 2 Bro. 138, Tracy v. Hereford; 1 Johns. Ch. 11, By such a bill future waste may be prevented, and an account and compensation decreed for past waste.</p> <p>At common law, and by the statute of Gloucester, tenant for life could neither cut timber nor mine coal. But the American doctrine is more enlarged: 4 Kent 76. But still the tenant cannot seriously impair the inheritance. The relative rights of the tenant for life, and those entitled in remainder, are to be determined from the nature and condition of the estate, and the circumstances of the parties. Whatever is prejudicial to the inheritance is waste: 7 Johns. 227; U. S. Dig. “ Waste,” 640, No. 19; Id. 925, § 19; 3 Wend. 341; 2 Hill’s Ch. 277.</p> <p>The devise in this case was not simply a devise of real estate for life,-but the testator gave his widow all “ his right and title” for her life. She was a tenant for life without impeachment of waste. But the material question is, whether it is waste in a tenant for life to work open mines. The testator used the coal for domestic use and for sale so far as it was marketable. There is no restriction in the will, with regard to the hse of the coal. The rule is, that the working of open mines by the tenant for life is not waste: Co. Litt. 53 b; Sander’s case, 5 Co. 12; 7 Com. Dig. 667, “ Waste,” D. 4; 3 Am. L. J. 328, Jan. 1851; 2 P. Wms. 389; 1 Taunt. 403. A widow may work mine's or coal pits on her dower lands: 1 Vern. 218; 2 Ch. Cas. Ab. 160; 6 Mun. 134.</p> <p>As to cutting timber, was cited 3 Yeates 261; 7 John. Rep. 227; 2 Hayward 110; Id. 283, that cutting wood for a furnace is not waste; 2 Southard 552; 1 Green’s Ch. 469. No injury has been done to those entitled in remainder, by the cutting of timber.</p> <p>An account cannot properly be demanded unless there is waste.</p>

<p>Error to the Common Pleas of Allegheny Qounty.</p> <p>This was a proceeding to June Term, 1852, in the name of the Commonwealth of Pennsylvania, for use of John Irwin and Joseph Tomlinson v. Wade Hampton. It was a scire facias on a report of viewers made to June Term, 1850, and its object was to recover of the defendant $173, charged upon a lot owned by him in the proceeding to open Hancock street, in the city of Pittsburgh. The defence was, that the act providing for the opening of the street was repealed before the scire facias issued. A case was stated in the nature of a special verdict.</p> <p>The act providing for the extension of Hancock street, passed on 6th April, 1850 — Acts of 1850, pp. 388-9. In accordance with its provisions, and on petition, the Court, on the 4th May, 1850, appointed seven viewers to view the ground over which it was proposed to extend Hancock street. The Act of Assembly required the viewers, if they should decide in favor of such extension, to locate said Hancock street forty feet wide, from Penn to Liberty street, and also to ascertain and determine what damage to private property was likely to be done by the extension of said street, and to designate in their report the person or persons entitled to receive the same; and also to ascertain and determine what'lots in the vicinity of said extension would probably be benefited by the opening of said street, and to divide and apportion the amount that each should separately contribute to defray the damages incurred, &c.</p> <p>The viewers appointed by the Court filed their report on the 15th day of June, A. D. 1850; and, inter alia, upon the property belonging to the defendant, described in the scire facias, was assessed $173, it being in the opinion of the viewers benefited to that amount by the extension of said street.</p> <p>The Act of Assembly provided further, that if the report of the viewers wras confirmed by the Court, it should be entered of record, and henceforth that part of Hancock street should be deemed and taken to he a lawful public street.</p> <p>The report of the viewers, after argument, was confirmed by the Court on 4th day of January, 1851. Upon this confirmation, a writ of certiorari was sued out by the parties interested, and on the — day of Sept. 1851, the proceedings of the Court below were duly affirmed by the Supreme Court. See report of the case in 6 Harris 26, the opinion being delivered Sept. 11, 1851.</p> <p>The 9th section of the act authorizing thé extension of said street, provided that the damages so assessed should remain a lien upon the lots benefited by the extension of said street until paid, and if not paid within six months after the approval and confirmation of said report by the said Court, process- might issue in the nature of a scire facias, upon a mortgage for the collection thereof, &c. This writ was issued to enforce the collection of the amount assessed upon defendant’s property.</p> <p>The owners of real estate appropriated for the extension of said street, after the confirmation of the report of viewers by the Court, accepted the judgments or liens adjudged upon the property reported to have been benefited thereby, as compensation for their property thus taken, and arrangements were made for the collection of the same.</p> <p>The defendant alleged that he was not bound to pay said assessr inent, because on the 26th day of Feb. 1852, an Act of Assembly was approved, the sixth section of which, inter alia, provided that the sections of the Act of 1850 be and the same are hereby repealed, so far as Hancock street is concerned. Acts of 1852, p. 85.</p> <p>M’Olure, J., concluded his opinion as follows:—</p> <p>“ That Hancock street has not been opened, or that the public has relinquished its easement so soon, is not through any act or agency of the plaintiff; he has been passive all along — took no exceptions to the report of viewers, and, like all others where private property is taken for public use and compensation made, is compelled to submit.</p> <p>“ This is a contract of the most solemn and imposing character, made by the Legislature, and through the legal instrumentality of viewers consummated, confirmed by the Court below, and ratified by the Supreme Court. The plaintiff had acquired a vested right to his damages, and the subsequent discontinuance of Hancock street did not divest or defeat that right. The removal of the lien or encumbrance of the street, whether opened and used or not, gives an enlarged enjoyment to the owner of the fee; but this enlarged enjoyment is not a purchase from the public, but an incident of ownership, with which the tenant in fee never parted. The discontinuance of the highway is a new, distinct, substantive proceeding, which does not annul or disaffirm the former proceedings. The repealing act does not impair the obligation of the contract; such an act would be unconstitutional and void: 22 Pickering 263, Harrington v. County Commissioners; 4 Barb. 64, People v. Supervisors, and cases there cited; Const. IT. S. art. 1, sect. 10.</p> <p>“ I am of opinion that the record in this case establishes, 1. That there was a contract not merely executory, but executed. 2. That the rights of the plaintiff were vested, so soon as the damages were assessed. 3. That the defence falls within the inhibition of the Constitution of the United States against a State passing-laws impairing the obligation of contracts.</p> <p>“Therefore — Judgment in favor of the plaintiffs and against the defendant, for $173, the sum assessed, with interest from June 15th; 1850, the date of filing the report; and costs.”</p> <p>Proceedings cannot be pursued under a repealed statute: 4 Yeates 392. If a proceeding were imperfect under an act repealed, it cannot be completed afterwards: 1 Watts 228; 1 Wh. 258; 10 Watts 351.</p> <p>The street was not actually opened, or the plaintiffs disturbed in the possession of their property when the repealing act was passed. The proceedings were inchoate and incomplete, and consequently the public did not acquire a title to the premises, or the plaintiffs a vested and complete right to the damages claimed in this action.</p> <p>It was contended, inter alia, that the repeal of a statute does not divest any rights acquired under it while in force: 2 Southard 689; Breese 29; 2 Har. & J. 41; 2 Stew. 160; 1 Howard’s Miss. 183; 6 Shepley 109.</p> <p>It was contended that on the confirmation of the report of the viewers assessing the damages, the plaintiffs in error acquired an absolute vested right to the liens on the property supposed to be benefited by the extension. The report was confirmed absolutely on 4th January, 1851, above a year before the repealing act was passed. The case stated admits that Irwin and Tomlinson accepted the liens as a compensation for their property which was then taken for public use: 22 Pickering; 4 Barbour 76, People v. Supervisors. If the interest were vested, it falls within the inhibition of the Constitution against passing laws impairing the obligation of contracts: 4 Barbour 79, 80. The legislature may change their intention before the land is taken, but after it is taken, the contract is so far executed that the rights of the parties cannot be affected by the repeal of the original act: 6 Cranch 87; 7 Id. 164; 9 Id. 43; 4 Wheaton 518, Dartmouth College v. Woodward; 17 Johns. 195; 13 Conn. 87. In penal statutes, a repeal will release the penalty. In acts conferring jurisdiction, if the act be repealed before anything is done under it, or where jurisdiction has been taken from one body and vested in another, something still remaining to be done before any interest has finally vested, either an actual repeal of the act, or a virtual repeal by giving exclusive jurisdiction elsewhere, may defeat the proceedings then pending. These are peculiar cases not falling within the protection of the Constitution of the United States.</p>

<p>1. A witness when called was sworn on his voir dire, and stated a fact from which it appeared that he was incompetent from interest; yet, on cross-examination by the party calling him, it appeared that he had no interest in the case. It was held, that all he said must be taken together, and that he was a competent witness.</p> <p>2. A specific objection was made to the receipt of evidence, and the offer was withdrawn. The offer was repeated, and a general objection was made. It was held, that it was to be presumed that both objections were on the same ground, as the contrary did not appear. General objections to evidence are not to be encouraged.</p> <p>3. A rule of Court requiring “ a copy of the plaintiff's book of original entry'' to be filed, a transcript was filed, accompanied by an' affidavit stating it to be an accurate transcript from the books of the firm; but there being no affidavit by the defendants, as the rule of Court required, that.the defendants had no such dealing with the plaintiff as stated in the account filed, or that they believe that the production of the plaintiff's book of original entries on the trial is necessary, the parties will be considered -in the condition in which they would have been if the plaintiff's books had been proven by legal evidence.</p> <p>4. The delivery of goods for the use of a steamboat was proved by evidence from the plaintiff's book of original entries. When it ■ was afterwards proved that the defendants were the owners of the boat, a presumption arose that the boat was navigated for their benefit and at their charge, there being-no evidence that it was chartered by or in the employment of any other person.</p> <p>5. Where one of several defendants has not pleaded, it is irregular to try the issue between the plaintiff and the other defendants, and at the same time assess tile damages against him who has not pleaded, without first taking judgment against the latter. But, if the irregularity were not objected to at the time it occurred, the case will not be reversed for such irregularity.</p>

This was an action by Long and others v. Blackstock, Hunter, & Hill, as owners of the steamboat Lydia Collins, to recover the amount of certain stores, groceries, &c., alleged to have been furnished by the plaintiffs for the use of the boat. See the facts of the case stated in the ease of Blackstock v. Leidy, antea. The plaintiffs’ book of original entries was produced, showing charges amounting to ¡$234.50, between 2d March and 28th of May, 1850.

This was a scire facias on a mechanics’ lien, filed in favor of Samuel Kingan and others v. Bartlett, contractor, and Earle, owner of the building.

. This was an action on the case by the owners of the steamboat Caroline against the owners of the steamboat Consignee, to recover damages sustained by a collision of the vessels. The collision occurred on the night of the 9th of March, 1849, on the Ohio, about one hundred yards from the Virginia shore, the river being four hundred yards wide, and the water at a stage from eighteen to twenty feet deep.

<p>Stock belonging to the United States Bank in a navigation company was levied on under execution'against the bank, and was purchased by the plaintiff in trust for the bank, and was within six years thereafter sold by the bank to another person, to whom it was transferred on the books of the navigation company: It was held, that the lapse of time, the insolvency of the bank, the embarrassments of the navigation company, and the inaction of the bank in exercising control over or asserting claim to other stocks sold at the same sale and purchased also by the plaintiff, were insufficient to raise any presumption of abandonment, or of a waiver of the right of the bank to the navigation, stock.</p>

This was an ejectment to June Term, 1850, by Hezekiah Davis v. Thomas McMahan and Samuel Potter, for about 20 acres of land. The suit was brought to recover the balance of purchase-money alleged to be due under certain articles of agreement between Davis, the plaintiff, and Potter, one of the defendants, for the sale of the land in dispute.

<p>The Act of 20fck March, 1845, requiring that the bail in eases of appeal from the judgments of justices of the peace shall be bail absolute in double the amount of costs in such cases, it was held, that a recognisance “ in the sum of $35, on condition that the defendant shall appear at the next Court of Common Pleas, to prosecute his appeal with effect,” 'was sufficient under that Act.</p>

This was an action of trespass by William and David Brown v. David Campbell, before a justice of the peace, from whose judgment an appeal was taken to the Common Pleas. It was tried May 21, 1851.

This was an ejectment by John Campbell, James Campbell, John Love, and Jane his wife, against Enoch Ulp and others, in which the plaintiffs sought to recover 75 of 200 acres of land, in Hickory township, Mercer county. The plaintiffs were the children of William Campbell. They claimed under an alleged purchase of the land by William Campbell, who, shortly after the alleged purchase, moved on the land, and resided on it till his death.

The Ohio' and Pennsylvania Railroad Company, having run their railroad through the land of the heirs of Thomas Bradford, in pursuance of the 9th section of the act regulating railroad companies, filed a description of its appropriation of a portion of the land of the said heirs, and in their petition asked the Court to appoint viewers to assess the damages, &c. On 17th June, 1850, three viewers were appointed, who reported damages to the amount of $2450. ► On the part of the…

This was an ejectment to May Term, 1851, by Robinson, McConnell, and Buffington, v. Robert Elder and others, for 331 acres, more or less, of land in Perry township, Clarion county. On part of plaintiffs was given in evidence a warrant in 1785, and a patent in 1795, and various deeds. One of the deeds was from Thomas McConnell to Joseph B. Lapsley, trustee for Thomas Cobb and Timothy Cobb, dated 19th October, 1820.

<p>Error, to the Common Pleas of Erie county.</p> <p>This was an appeal from the judgment of a justice of the peace. It was an action by Jacob Erey and Catharine, his wife, v. John Lantz, to recover upon an implied assumpsit to pay for the services of the wife under the following circumstances. Lantz, the defendant, married a widow, the mother of the wife of Frey. Catharine, at the time of the marriage of her mother, was about eight or nine years of age. Lantz told her that if she would come and live with him he would treat her as one of his own children. She was received into the family of Lantz, and she continued there until she was between 1,8 and 19 years old, when she married Jacob" Frey. Soon after her marriage this suit was brought by her husband and herself, to recover wages for the time she lived in the family of her stepfather.</p> <p>It was proved by J. Evans, that on the day of the trial of the case before the justice, Lantz said he knew he owed her — that he ought to pay her something for her services, but that he would not pay her anything.</p> <p>This same case is reported in 2 Harris 201. In the narr. ninety dollars was claimed.</p> <p>Church, J., charged, that the mere fact that the female lived in the family of the defendant, as one of them, raised no implied promise to pay wages. But it was alleged, that there was a promise in relation to the daughter coming to live with the defendant, and that in consequence she did so, and worked for him for several years. If defendant owed her for labor and service, the law implied a promise, unless repelled by something limiting it. He referred to the jury to determine whether the defendant admitted that he owed the plaintiff or was indebted to her for her services; and if he did, that it was something which tended to form an equivalent for an express promise to pay.</p> <p>Verdict was rendered for the plaintiff for $100.</p> <p>Error was assigned to the charge; also in submitting to the jury that they might infer a contract, when there was no evidence on which to found such inference.</p> <p>Also, that there was error in entering judgment on the verdict, which was for a greater sum than that laid in the declaration.</p> <p>He cited 2 Harris 201, report of this same case; 5 W. & Ser. 513, Candor’s appeal.</p>

<p>A testator devised “ to his daughter and to her legal heirs” certain real estate, all of which, he added, “ I give and devise to my said daughter and to her heirs for ever, with this express condition and provision, that she shall not alien or dispose of the same, or join in any deed or conveyance with her husband for the transfer thereof during her natural life, but the same shall be and remain, during the period aforesaid, inalienable.”</p> <p>Held, that the daughter took an estate in fee, the restraint upon alienation being void. See. Beifsnyder v. Hunter, antea 41.</p>

This was an action by The Trumbull Mutual Fire Insurance Company v. Samuel Wilson and Samuel Goodwin, trading under the firm of Samuel Wilson & Co., upon a note, termed a premium or deposite note, which the defendants, as members, gave to the said company. The suit was an appeal from the judgment of a justice of the peace.

This was an action on the case by John A. Baillie v. Carson & McKnight, for alleged deceit or breach of warranty, in the sale of forty-six barrels of lard grease. The facts were stated as follows: The plaintiff below, who was a lard oil manufacturer, called at the counting-house of the defendants below, grocers and commission merchants, for the purpose of purchasing lard grease. The defendants sent their porter with the plaintiff to examine their stock.

This was an action of ejectment, brought by James Wilson against I. & A, Patterson, to recover a lot of ground in Allegheny city.

This was an action of trespass, vi et armis, by Alexander Guffey v. William Free and several others. In the first count of the declaration the defendants were charged with injury to the plaintiff’s real estate. In the second, for taking and carrying away his personal estate. The third was for breaking and entering his close, and carrying away personal property which was attached to the freehold. The plea was, not guilty.

This was an action of trespass by Mardis v. Clarke, for levying on a mare, the property of the defendant. The suit was brought before a justice of the peace, and came into Court by appeal.

This was an action by Richardson & Co. v. Huff, to recover the balance of book accounts, which was alleged, on part of defendant, to be barred by the statute of limitations. It was admitted that the books of the plaintiff showed a balance of account of $130.20 against the defendant, entered 16th. June, !843. In May, 1849, Richardson sued the defendant before a justice.

<p>Error to the District Court of Allegheny county.</p> <p>This was an ejectment to April Term, 1850, by Gr. W. Roberts and others, devisees of John Roberts, deceased, v. John McCracken and others, for a lot, No. 7, in Bayard’s plan of lots in the city of Pittsburgh.</p> <p>Plaintiff's claimed under the will of John Roberts, who devised all his real and personal estate, after the payment of his debts, to his three children, who were plaintiffs in the suit. He died in 1821, his will being dated 14th February, 1821, and proved on 23d February, 1821, in Washington county.</p> <p>The defendants claimed under a sheriff’s sale of the lot, as the property of John Roberts, and by the statute of limitations. The chain of title was as follows :</p> <p>Deed, 29th June, 1814, by Greorge A. Bayard and wife to John Hazleton, for the lot in question, reserving a rent of $87.50 per annum, payable quarterly.</p> <p>Deed, 22d April, 1817, by Hazleton and wife to John Roberts, subject to the same ground-rent, payable to Bayard, his heirs and assigns.</p> <p>John Roberts, devised all his real and personal estate to his three children, who were plaintiffs in this action, their heirs and assigns. The eldest of the three children was about nineteen or twenty years old when his father died. They paid no attention to the property after the death of their father, and perhaps did not know of any claim in themselves to the premises till a short time before this ejectment was brought. Bayard, the grantor, was examined on the trial, and testified that soon after Roberts’s death, finding the premises deserted, he took charge of them. That he did not know that Roberts had children. There were buildings on the premises, and Bayard received rent and leased the premises. In 1838 he sold the premises to John Chambers, who took possession soon afterwards. Two others, Bowman and Strain, were concerned in the purchase. Chambers and Bowman and Strain conveyed to Dr. Samuel Murdoch, by deed dated 25th August, 1840, subject to the ground-rent of $87.50 to Bayard. Murdoch made claim to the property before this conveyance. Chambers and the others were not to pay anything to Bayard before he could make to them a good title. They and others made valuable improvements on the premises.</p> <p>A suit was brought to November Term, 1826, by Dr. Murdoch v. Miller, administrator of the estate of Roberts, cum testamento annexo, on a single bill dated 15th January, 1827, and judgment was obtained. A sci. fa. issued to August Term, 1829, and on 8th July, 1829, judgment was confessed, de bonis testatoris; and subsequently an amicable sci. fa. was entered to October Term, 1838, in which, on 14th July, 1838, judgment was confessed by the administrator for $1290.28. The devisees of John Roberts were not made parties to the proceeding. On ven. ex. to June Term, 1839, the premises in dispute were sold to Dr. Murdoch for $1000. The sheriff’s deed to Murdoch was acknowledged 22d June, 1839. An auditor was appointed to report distribution of the proceeds of sale. Bayard claimed the rents in -arrear, and he .received, by agreement, about $400 out of the proceeds of the sale.</p> <p>Bayard testified that when he made the arrangement with Bowman and Chambers, he told them that he could not make a title then, and that they should not put an improvement on the premises that would cost over $300. That he told them that the property had been abandoned for fifteen or sixteen years, and he could not make a title till the twenty-one years were up.</p> <p>It is provided in the 34th section of the Act of 24th February, 1834, relating to executors and administrators, that “in all actions against the executors or administrators of a decedent who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs, ,or devisees, and the guardians of such as are minors, shall be made parties thereto* * * “ and if notice of such suit shall not be served on such widow and heirs or devisees, and their guardians, the judgment obtained in such action shall not be levied or paid out of the real estate of such widow, heirs, or devisees, as shall not have been served with notice of such writ.”</p> <p>The following points were submitted on the part of defendants ;</p> <p>1. That a good title passed to the defendants under the judgments offered in evidence, and the sheriff’s sale and deed thereon.</p> <p>2. That if the jury believe that the plaintiffs or their father abandoned the premises shortly after the conveyance by Hazleton to Roberts, and have never looked after, taken charge of, or paid the rent or taxes of the premises for thirty years or thereabouts; and that the landlord took possession of the same and made the best he could out of the said premises, and after some seventeen years of such possession sold the same to Bowman, Chambers, and Strain, who, for a valuable consideration, transferred the same to Dr. Murdoch, who sold to James K. Hamilton, who conveyed to' the defendants ; and that said Bayard and those so claiming under him, have, during thirty years, paid the taxes and made valuable improvements to the value of $6000 to $8000, then the plaintiffs cannot recover.</p> <p>3. That if the jury believe that George A. Bayard took possession of the premises believing them to have been abandoned on account of the great depreciation in value, or for any other cause, and rented and used them as his own for about seventeen years, and then sold them to Bowman, Chambers and Strain, under whom defendants claim, and such adverse possession was continued for more than twenty-one years, then the defendants have a good title, and plaintiffs cannot recover.</p> <p>4. That if, under the facts of this case, George A. Bayard can be treated as the trustee of the plaintiffs, then the defendants are entitled to be paid for all the improvements and repairs, taxes, &c., and the same should have been tendered before suit brought; or the verdict should be special and conditioned for the payment of the whole amount.</p> <p>5. That in case of a sci. fa. to revive a judgment obtained against an executor or administrator before the passage of the Act of 24th February, 1834, entitled “An Act relating to executors and administrators,” issued after said act took effect, is not an “ action” within the meaning and intention of the 34th section of said act, and that to charge real estate with the payment of the debts of the testator or intestate, it is not necessary that the widow, heirs, or devisees, should be made parties thereunto, and it was not necessary in order to charge the real estate in controversy Aviththe payment of the judgment, given in evidence by the defendants, of the 14th of July, 1838 for $1290.28, that the plaintiffs should be made parties to the scire facias on which said judgment Avas obtained.</p> <p>All of these points were answered by Hepburn, J., in the negative.</p> <p>He further charged, “That the sheriff’s sale did not divest the title of the plaintiffs, as they were not made parties to it, as provided in the Act of 1834, though the suit was brought before the passage of that Act: 9 Barr 249, Keenan v. Gibson.”</p> <p>He further charged, “ That the declaration of Bayard to Chambers, that in four or five years he could make a title by virtue of the statute of limitations, could not have a retrospective operation; that it must be taken as applicable only to the time he spoke, and if there was nothing in the evidence showing an adverse claim at an earlier day, it would operate from that time only; and that he did not find that there was sufficient evidence of a notorious, continued, adverse possession in the defendants, and those under whom they claim, sufficient to protect them under the statute of limitations.</p> <p>Also, “that to bar the plaintiffs, the defendants should have bought the defective title without notice, and that the defendants permitted valuable improvements to be made on the premises without claim of title; but if the plaintiffs had no knowledge of their title, they had nothing to conceal; and if defendants knew of Roberts’ title, they cannot complain: 7 Watts 394, Carr v. Wallace. See also Knouff v. Thompson, 4 Harris 357.”</p> <p>Pie concluded by saying, “ that upon the whole case he was of opinion that the defence had failed, and that the plaintiffs were entitled to recover.”</p> <p>Yerdict was rendered for the plaintiffs.</p> <p>It was assigned for error, 1. The Court erred in charging the jury that the sheriff’s sale and deed to Samuel Murdoch did not divest the title of John Roberts, the ancestor of the defendants in error, and plaintiffs below2. That the statute of limitations was not a bar to the claim of the defendants in error; 3. That the plaintiffs in error were not entitled to be reimbursed for the cost and value of their improvements; 4. In taking from the jury the evidence of George A. Bayard, with regard to the nature and character of his possession; 5. In answering negatively the points submitted on the part of the defendants; 6. In taking the whole case from the jury.</p>

This was an action on the case by Elizabeth Barclay against Jacob Weaver, Jr., as the endorser of a promissory note, as follows: Pittsburgh, January 21, 1848. Six months after date, I promise to pay to the order of Jacob Weaver, one thousand dollars, with interest from date, without defalcation, value received. B. Weaver. Endorsed, Jacob Weaver, Jr., H. A. Weaver.

This was an ejectment to September Term, 1848, by Sarah Frances Evans, by her next friend, Sarah Collins, v. Amos N. Meylert, and others, for a tract of 417 acres 145 perches of land, adjoining the borough of Butler. The plaintiff was the daughter of Valeria Evans, wife of Evan R. Evans, both of whom were deceased, and she claimed the land as heir-at-law of her mother.

<p>1. It is indictable as a common nuisance to collect in tbe streets of a city large numbers of people, by means of loud and indecent language addressed to persons passing and repassing on the public street, so as to obstruct the public right of passage along the street.</p> <p>2. In a subsequent count the defendants were charged with openly and publicly, on Sunday as on other days, in the public streets, with a loud voice, in the hearing of the citizens, speaking and uttering wicked, scandalous, and infamous words, representing men and women in obscene and indecent positions, with design to debase and corrupt the morals of the youth as of other citizens: Held, that such acts were indictable as a misdemeanor, and that it was not necessary to aver that they were a common nuisance.</p> <p>3. It was not necessary to set out particularly in the indictment the words spoken and the attitudes described. It is sufficient that the words were averred and found to be “ wicked, scandalous, and infamous,” and the attitudes to be “ obscene and indecent,” and both designed and manifestly tending to the corruption of the public morals.</p>

<p>One of three partners sold his interest in the firm property; and, after-wards, the two other partners assigned all their interest in the real and personal estate, and also the interest of the,said two partners, as members of the firm, in all the effects and personal property belonging to the firm, and all other personal property owned by the said assignors, in trust, inter alia, that the partnership property be subject to the claims of the partnership debts :</p> <p>Held, that this was an assignment by the remaining partners of all the partnership effects for the benefit of creditors, and that the whole title to the partnership effects passed by such assignment.</p>

<p>1. In a suit pending in 1850, in the Common Pleas, a rule was entered on the part of the plaintiffs for tho appointment of arbitrators, who were subsequently chosen, and met and adjourned. During the adjournment, a written agreement, entitled in the cause pending, was made by the attorneys at law of the parties, for the submission of all matters in variance between the parties, of every nature and kind, without regard to the form of action or pleadings, to the arbitrators in the cause pending, or to others legally appointed in their stead; and providing that the award shall be “ final and conclusive,” and that “ the parties waive the right of appeal and of inquisition upon real estate.”</p> <p>An award was subsequently made, in which it was stated that the arbitra- ' tors met, and, “after hearing the parties, their proofs and allegations, do find for defendant $18,000 with costs.”</p> <p>An appeal was entered on the part of the plaintiffs, and exceptions to the award were filed, but in none of them was a want of authority in the attorneys to make the submission alleged. The exceptions were dismissed and the appeal was quashed:</p> <p>It was held, that this was a proceeding under the compulsory arbitration act of 1836; that its nature was not changed by the enlarged submission; and that a waiver of the right of appeal was not incompatible with the compulsory Arbitration Act o'f 1836.</p> <p>2. Where a want of authority in an attorney at law to make a submission is alleged, the submission should be revoked by the party, or an application made to the Court to set it aside. If the party goes to trial and takes the chance of an award, he is bound by the submission.</p> <p>3. If exceptions to the award be filed, in none of which is a want of authority in the attorney to make the submission alleged, it is too late to make it for the first time in this Court on a writ of error.</p> <p>4. The submission in this case was not beyond the authority of counsel.</p> <p>5. This Court will not consider exceptions to the merits of the case, which were made in the Court below and overruled.</p>

<p>1. Beal estate was sold under a judgment against the administrator alone, the heirs not being made parties to the proceeding as required by the Act of 1834. Subsequently, one of the five heirs executed an instrument of writing referring to the sale, and, in consideration of the receipt of one fifth part of the net proceeds of it, releasing the purchasers from the same, and assigning, conveying, and confirming to them, their heirs and assigns, for ever, the said property and all her right and interest therein.</p> <p>It was held, that, there being no evidence tending to affect the sheriff’s vendees -with, fraud in procuring the sale or in obtaining the instrument of transfer, and no evidence to repel the presumption that the heir was acquainted with the rule of law which rendered the sale inoperative as to her title as she was not a party to the proceeding, her receipt of her share of the purchase-money was an affirmation that her title had passed to the purchasers, and she was estopped from proving the contrary, to the injury of those who purchased on the faith of her act.</p> <p>2. The heir in question had no right to any part of the purchase-money arising from the sale, unless her title passed to the purchaser; and she will not be permitted to retain the money and also to recover the land.</p> <p>3. Equitable estoppels have place as well where the proceeds received arise from a sale by authority of law as where they spring from the act of the party, and the application of the principle does not depend on any supposed distinction between a void and a voidable sale.</p> <p>4. The instrument conveying the interest of the heir had the elements of a deed of bargain and sale.</p>

<p>Appeal from the decree of the Orphans’ Court of Allegheny county.</p> <p>The account of the executors of the will of John Riddle, Sr., deceased, was filed in October, 1848. Exceptions were filed to it in October, 1848, at the instance of heirs and legal representatives of John Riddle, Jr., a son of the deceased. Auditors were appointed, and in their report the amount of certain moneys was charged as advancements made to John Riddle, Jr., the same being for moneys advanced for his education, &c. It appeared that the latter did not object to the charges for his education, believing it to have been the intention of his father to charge him with them, though it appears that he supposed thfem to be not legally chargeable against him. Exceptions to the report, as it related to the charge of advancements, were filed at the instance of heirs and legal representatives of John Riddle, Jr., but the report of the auditors was confirmed on 16th Feb. 1850. Afterwards, a son of John Riddle, Jr., petitioned the Orphans’ Court for a review.</p> <p>Auditors were again appointed, and their report, in which the same moneys were charged as advancements, was confirmed, and decree was made accordingly. From such decree this appeal was taken.</p> <p>John Riddle, the testator, kept an account of the expenditures by him for the hoarding, clothing, and tuition of his son John, previous to his coming of full age. The amount exceeded $700; the auditors charged as an -advancement $784.51, and this was confirmed by the Orphans’ Court.</p> <p>In the will of John Riddle, he directed the residue of his real estate, not devised or excepted, to be sold, and the money to form a fund, and that his five sons were to have “share and share alike; that is, receive each an equal share, taking in such distribution into consideration any advancements^ may have made to any of my said sons.”</p> <p>The question was, whether the expenses of education were an advancement, with the amount of which John Riddle, the son, was liable to be charged.</p> <p>In the opinion of the Court, confirming the report of auditors, it was observed, that entries in a book made, or caused to be made, by a father of advancements to his children, are competent evi- • dence, although the child charged had no knowledge of the entry: Hengst’s Estate, 6 Watts 86.</p> <p>Questions of advancement depend upon the intention of the parent; and of this the declarations of the parent at the time, or the admissions of the child' at the time, or afterwards, would seem to be evidence: Daniel King’s Estate, 6 Wharton 370.</p> <p>He contended that education was the payment of a debt by the parent; an imperative duty; but that advancement was a gift: Bac. Ab. title “ Executors,” also, “Advancement.” “Such advancement as will exclude a child, unless he brings it into botch pot, must be given directly to the child; and therefore money given to bind a child out as an apprentice, or laid out in his education, either at school or at the university, or on his travels, is no advancement.”</p> <p>Advancement has been defined by a modern writer to mean, “ that which is given by a parent to his child or presumptive heir, bj anticipation of what he might inherit:" 1 vol. Bouvier, tit. “Advancement;” 2 Fonbl. Eq. 121; 1 Supp. to Ves. Jr. 84; Id. 57; 1 Vernon 88, 108, 216; 5 Ves. 421; 3 Bac. Abr. 76; 4 Kent Com. 173.</p> <p>Webster defines the word “advancement” to mean, “a provision made by a parent for a child, by gift of property, during his, the parent’s life, to which the child would be entitled, as heir, after his parent’s death.”</p> <p>The above definitions appear to be in accordance with the various enactments of the Legislature on the subject, from time to time. The Act of 1705 authorizes the Orphans’ Court to value the property given in advancement. It did not contemplate “ education” as an advancement, and the subject of valuation. The Act of 19th of April, 1794, provides that the advancement by lands or personal estate, is to be taken into consideration, so as to make the estates of all the children equal. He referred to the 16th section of the Act of 1833, providing that if the advancement be less than the share of the child in the estate, then there shall be allotted to him only so much of the estate as shall make the estate of all the children equal, as near as can he estimated.</p>

<p>1. A lease was made for a specified time, with an express covenant to “deliver up possession at the expiration of the term, without further notice,” and with a reservation of the right of the landlord “ to enter and repossess the premises at the end of the period, or at any time thereafter”:</p> <p>It was held, that the landlord could maintain ejectment at any time after the expiration of the term, without previous notice to quit.</p> <p>2. Where such a lease is made, a new lease from year to year with a right to three months’ notice to quit, cannot be implied from the act of holding over by the tenant and the mere neglect of the landlord to dispossess the tenant.</p> <p>3. Where a defendant in an ejectment does not intend to contest the plaintiff’s right to the land, it is not necessary for him to enter a disclaimer on record. A plaintiff, in order to recover in ejectment, must establish not only his own title, but also the possession of the defendant.</p> <p>4. Under the 1st section of the Act of 1836, relating to the jurisdiction and powers of the Courts, giving to the Supreme Court the right to modify judgments of other Courts, a judgment in ejectment against two defendants may be affirmed as to one and reversed as to the other.</p>

Appeal 'from. the decree of tbe Orphans’ Court of Allegheny county. This was an appeal by tbe purchaser of certain real estate, late of Henry Simmonds, deceased, which was sold by A. Hartz, the administrator of the estate, under an order of the Orphans’ Court. On 4th June, 1850, Cummins & Smith recovered a judgment, before an alderman, against Hartz, as administrator. A transcript was filed in Court.

This was an ejectment by Trego and wife v. Irwin, Taylor, and Buzzard, for 240 acres of land. The right of the plaintiffs to recover in this case was founded on a warrant to John Matthews, dated 18th June, 1785, for 300 acres, survey on this warrant by Joshua Elder, dated 26th May, 1786, for 400J acres. Patent to John Craig, dated 21st January, 1814, reciting that the interest of John Matthews was sold by the sheriff to Johp Craig.

<p>1. Three joint owners of a furnace property and partners therein, sold all their interest in the furnace and personal property to another person; and the latter agreed to pay the judgments against the property, and the other debts of the firm, and afterwards to pay to the vendors the amount of stock put by them into the concern.</p> <p>The vendee soon afterwards conveyed his right and title to the same property to the defendants. The defendants had judgments binding the premises before the sale by the three partners, and others obtained against the vendee after his purchase. On some of these judgments executions were issued previous to the transfer to the defendants, and, afta' the said transfer, the furnace property was sold and purchased by them.</p> <p>It was held, that the defendants were not bound to pay to one of the joint owners the amount of his stock in the furnace concern: there was no contract by defendants to pay, and, if it ran with the land, the defendants got it when they purchased the land at sheriff's sale.</p> <p>2. All that could be inferred from the transfer is that the defendants took the land charged with the debts. But such charge was dependent on the title, and by its failure the defendants were acquitted of the duty.</p> <p>3. The stock of the plaintiff was a constituent part of his legal title to the land; and when he lost such title he lost his claim to his stock, so far as the defendants were concerned.</p>

Error, to the Common Pleas of Hlk county. This was a scire facias to May Term, 1850, on a mechanic’s lien, issued in favor of Edmund Holden v. E. C. Winslow, with notice to H. Thayer and Carpenter A. Winslow, terre tenants. On 9th April, 1849, the mechanic’s lien law of 1836 was extended to Elk county. On 7th December, 1849, this claim was filed for $786.26. Scire facias was issued to May Term, 1850. This case was before the Court on a former occasion.

This was an appeal by Christopher Beam from the decree of the Court making distribution of the proceeds of sale of the Somerset and Conemaugh Turnpike Road. On the 5th March, 1845, the Court of Common Pleas of Somerset county awarded a writ to sequester the tolls and receipts of the said road, and appointed Christopher Beam the sequestrator, ■and ordered the receipts and tolls of the said road to be applied to its repair.

This was an action of ejectment in favor of The Commonwealth v. William Ligat, to recover the possession of a lock-house and lot of ground. In the month of May, 1833, the board of canal commissioners, then in office, purchased from S. Steele two lots of ground, in the town of Centreville, upon which a house and other buildings had been erected.

This was an action of ejectment in which Nathaniel Moore and Narcissa his wife were plaintiffs, and Sarah, Eliza, and William Small, minor children of Matthew Small, by their guardian, were defendants. It was brought to recover the possession of 100 acres of land in Mahoning township, Lawrence county. Narcissa Moore was the daughter of John Small, deceased, who it is admitted originally owned the land.

Error, to the Common Pleas of Indiana county. This was an action of ejectment by Joseph Rankin and others v. Andrew Simpson, Senior, and Andrew Simpson, Junior, to recover the possession of a tract of land. The plaintiffs, who were minors, claimed as heirs of William Rankin, deceased, who derived title to the land through the will of his father, William Rankin. which was proved on 23d June, 1823.

Col. Thomas Stokely died in July, 1824, in Washington county, where he resided, leaving a widow, Elizabeth, a son, Samuel, the accountant, and three daughters, one of whom, Ann, then unmarried, and afterwards intermarried with John H. Miller, the appellant. Letters of administration on his estate were granted in 1824 by the register of Washington county, to his widow and his son.

This was an action of ejectment by Samuel H. Ward and others v. Samuel Holliday and William Holliday, to recover a tract of land containing nearly one hundred acres, in Erie county. The land in dispute had belonged to Samuel Holliday, Sen., and he was seised of the same at his death. The plaintiffs were children of Elizabeth Ward, deceased, who was a daughter of Samuel Holliday, Sen., deceased, and the defendants were children of the said Samuel Holliday.

<p>Appeal by John Knight from the decree of the Common Pleas of Fayette county.</p> <p>The real estate of Knight was sold at sheriff’s sale, and an auditor was appointed to report distribution.</p> <p>A judgment in favor of Iíellen & West v. John Knight was submitted, amounting to above $81. The defendants claimed a credit on it for the amount of his book account v. Peter H. Hellen, amounting to $62.78. P. H. Hellen, for Plellen k West, objected to such account being so credited, and produced book accounts against Knight amounting to $114.36, as an off-set against Knight’s account. The auditor decided that Knight was not entitled to credit for his account.</p> <p>To the report of the auditor two exceptions were made for Knight; one to the non-allowance of $300 to- him under the exemption act of 1849, and the other that the auditor erred in allowing the judgment of Hellen k West, it having been paid.</p> <p>Whilst the case was in Court, Knight’s counsel requested an issue, or else that Hellen & West be directed to issue a scire facias on their judgment, to try the question whether or not their judgment was paid.</p> <p>The court confirmed the report, and Knight appealed.</p> <p>One of the exceptions was that the court erred in not directing the issue as requested.</p> <p>It was, inter alia, contended that before making any final decree, the court below should have directed an issue, as requested, to try whether the judgment of Hellen & West was paid, under the 87th sect. of the act of 16th June, 1836, Dunlop’s Laws, 1st edit. p. 734: “If any fact connected with such distribution shall be in dispute, the Gourt shall, at the request in writing of any person interested, direct an issue to try the same.”</p> <p>With regard to the position taken by appellant’s counsel, that the court below should have directed an issue, &c., it does not appear that this was pressed upon the Court, for there is no action by the Court upon the request, one way or the other.</p>

In an action by Rezin Lacock v. Alexander White and his son Alexander, before a justice of the peace, judgment was entered in favor of the plaintiff on 29th March, 1845, for $16.35. The judgment was afterwards opened by the justice on the application of A. White, Senior, and after a rehearing of the case judgment was entered for the plaintiff, on 7th June, 1845, for $10.

Error, to tlie District Court of Allegheny county. This was an ejectment by Thomas Liggett v. Frederick Long and Charles Ross, brought to April Term, 1851, for Lot No. 216, in McKeesport, Allegheny county. The plaintiff claimed, under deed of Nathaniel Holmes, treasurer of Allegheny county, to him, dated 18th June, 1834, for said lot No. 216, for county taxes, for the years 1832-33, as unseated. Deed acknowledged July 9, 1834.

This was an action on the case brought to August Term, 1850, by Rockwell v. Langley, for the continuance of a nuisance, in the keeping up of a mill-dam, and thereby keeping plaintiff’s land overflowed, after a prior suit to May Term, 1847, for the same nuisance, and a recovery thereon by plaintiff. Plaintiff declared for the continuance of the nuisance aforesaid, stating the former proceedings and recovery. Defendant entered a general plea of Not guilty.

<p>Error to the Common Pleas of Erie county.</p> <p>This was a scire facias on a mortgage. It was issued to February Term, 1848, in the name of Ohauncy F. Perkins, administrator, &c., of Oliver Abell, deceased, v. Samuel Johnson and Fanny his wife.</p> <p>The scire facias issued on 24th July, 1847, and described a mortgage dated on 29th June, 1837, by Samuel and Fanny Johnson, by which they mortgaged to Oliver Abell a piece of land in the town of Erie, for the security of $1500.</p> <p>The plea was payment.</p> <p>Before the scire facias was issued, Samuel Johnson and Fanny his wife, by deed, dated 21st October, 1840, conveyed the mortgaged premises to Charles M. Reed. No consideration was mentioned in the deed. The deed recorded 18th December, 1840. It was stated that there was no bond accompanying the mortgage, and that there was no covenant in it to pay the amount for the security of which it was received.</p> <p>On 2d November, 1850, a motion was made for the substitution of C. M. Reed on the record, in place of the defendants, it being alleged that they had no interest in the suit. Leave was granted.</p> <p>The case was tried before Church, J.</p> <p>On the trial in December, 1850, on the part of the defendant was^ offered the testimony of Jacob Haughton, taken on commission to Ohautauque county, state of New York. The plaintiff objected and offered to prove that Samuel Johnson was present when the testimony of Haughton was taken by the commissioner. The Court rejected this offer because, under the 107th rule of Court, the plaintiff was bound to file his objections to the execution of the commission, upon receiving notice that the testimony is filed in that office, which notice was proven in this case to have, been given and no objections filed as required.</p> <p>The plaintiff’s counsel excepted.</p> <p>The 107th rule was as follows:</p> <p>Rule 107. On the return and opening of any commission, which shall only be done by a judge of the Court, or else by the prothonotary, in the presence of the parties or their attorneys and with their consent, or filing of any deposition, either party may give notice thereof to the adverse party or his attorney, who shall, within ten days after service of such notice, file with the prothonotary a specification of his exception, if he have any, to the form or execution of the commission, or taking the deposition, or to the mode of swearing the witness, or to any of the acts or omissions of the commissioners or officers, or of any other person or persons in or about the same. No exceptions to the admissibility of the evidence so returned or filed, not included in such specifications, shall be taken on the trial of the cause, unless it be an exception that might be taken to the evidence if the witness were offered for examination orally in Court.</p> <p>On part of defendant, Samuel Johnson, the mortgagor, was offered. He was objected to as incompetent from interest; and because he was a party to the suit. Johnson then executed a release, by which he released the plaintiff from all costs to which he (Johnson) was or may be entitled in any manner, in any result of the suit. He was admitted, and plaintiff’s counsel excepted.</p> <p>December 18, 1850, verdict for plaintiff for $204.80.</p> <p>The assignments of error were as follows:</p> <p>1. The Court erred in admitting Samuel Johnson to 'testify for the defence.</p> <p>2. The Court erred in the charge in stating that the jury must consider the evidence of Samuel Johnson, that his situation did not affect his competency but only his credibility.</p> <p>3. The Court erred in admitting the testimony of Jacob Haughton, taken on the commission.</p> <p>It was contended that Johnson was incompetent to testify in the case: 1 Barr 435, Wolf v. Fink. A party to the record cannot be a witness: 12 Peters 149. Also cited 3 Barr 298; 4 Id. 199; 10 Id. 428; 1 Id. 173; Id. 365; 5 W. & Ser. 509, Post v. Avery; 6 Id. 555; 7 Id. 144; 3 Barr 360; 2 Harris 390; Id. 110.</p> <p>Testimony taken under a commission cannot be read if the attorney of one party was present when it was taken, though he took no part in the examination, and was not employed to attend: 6 Barr 449, Hollister v. Hollister.</p> <p>There was no personal responsibility by Johnson.</p> <p>Where a suit is ended as to a defendant, and he has no interest in the matter in dispute, he is competent to testify: 1 Greenleaf’s Ev., sec. 355; Ibid. sec. 360; 7 Watts 360; 2 W. & Ser. 172; opinion of Coulter, J., in 7 Barr 469. Reed became the defendant on the record.</p> <p>. A party who is on the record only as a naked trustee, and is not liable for costs, may be a witness: 1 Jones 163.</p> <p>As to the deposition of Haughton, the rule of Court rendered the objection unavailing. Each Court has power to make rules for the transaction of its business, which are not in opposition to the law: 5 W. & Ser. 175-7-8.</p>

This was an action of covenant by Rufus Hills and Eliza C. Hills his wife, late Eliza 0. Ely, against William M. Wood, to recover the purchase-money of two lots of ground sold by Hills and wife to Wood. The only question involved was, whether Eliza C. Hills, late Ely, took an estate in fee-simple in the lots, under the will of Judah Colt.

This was an amicable action of account render, in which Robert Wray as administrator of the estate of E. Kirkpatrick, deceased, was plaintiff, and Robert Beatty, defendant. Robert Beatty and Edward Kirpatrick were general and equal partners in the mercantile business at the time of the death of Kirkpatrick, about 1846. They had been in business for several years.