Volume 2 — Binney's Pennsylvania Reports

THIS was an appeal from the decision of Bracken-ridge J. at a circuit court for Dauphin in October 1806. The plaintiffs, who were entitled to an estate for the life of one Oliver Ramsey in certain lands of which he was tenant by the curtesy, brought a writ of partition against Straub who was tenant of the freehold in common with them, and joined with him as defendants two others who were merely tenants for years or at will under Straub.

<p>IN ERROR.</p> <p>V V HIT of error to the Common Pleas of Dauphin.-</p> <p>The declaration by Foster, the plaintiff below, against the administrators of Foster, contained two counts: the first an indebitatus assumpsit, and the second a quantum, meruit, for work labour and services performed for the intestate in his lifetime. Upon the trial, the plaintiff gave in evidence a promise by the intestate to give him 200/. if he would live with him until the intestate’s death, and that he accordingly had lived with, and worked for him, up to that time.</p> <p>The defendant’s counsel insisted that the special promise •did not support the declaration, and that the action should have been a special assumpsit; but the court charged the jury that if they believed the testimony, it entitled the plaintiffs to their verdict for 200/.; and the defendants took a bill of exceptions.</p>

THIS was an appeal from the decision of Ye ates J. at a Circuit Court for Dauphin, in November 1805.

IN ERROR. E RROR to the Common Pleas of Dauphin county. In this case the plaintiff assigned for error that issue was not joined below; the plea being “ payment with leave to “ give the special matter in evidence,” to which there was no replication, nor was there the usual clerical memorandum ■ ” on the doequet, “ and issue.’1

in ERROR. -HORROR to the Common Pleas of Cumberland county, The declaration, which contained but one count, stated, that whereas William Brown the plaintiff was an upright , . _ . 1 . „ . « 1 and virtuous man, and was married and had a wife m full life, yet tjie defendant Simon Lamberton, intending to bring him . . , 0 ° into disgrace, and to cause him to suffer the punishment t^le -aw inflicts upon the heinous crime of adultery, did falsely maliciously and wickedly utter…

THIS was an appeal from the decision of his Honour the late Judge Smith, at a Circuit Court for Northumberland in October 1806. It was an ejectment for a tract of land in the purchase of 1768.

<p>N this action of ejectment, a verdict was entered by consent for the plaintiff in the Circuit Court of Northumberland county, subject to the opinion of this Court upon a case which stated in substance as follows:</p> <p>The title in fee of the lands for which the ejectment was brought, was in Thomas Rees on the 28th April 1788. On that day, Thomas Rees of Montgomery county, and Hannah wife, in consideration that Rees was indebted to Charles Massey, Christopher Marshall, and others, in several sums money which he was unable to pay, and also in consideration of five shillings, conveyed to Charles Massey, Christopher Marshall, Israel Jacobs, and others, their heirs &c. all and singular his lands &c.; upon trust to sell the same in such convenient time as should seem meet to them, and to apply the money arising therefrom to the payment of all the just debts payable by Rees, to such creditors as should sign and agree to certain conditions in a certain instrument contained; the surplus money to be for the grantor after paying all debts.</p> <p>This indenture contained a reservation to Rees of full power and perfect liberty to enter upon, occupy, and enjoy all or any part of the s.aid lots, lands &c. situate in the county of Northumberland, and to take and receive the yearly rents issues and profits thereof, for and during the term of four years from the 1st of April 1788; and also in his own name, or in the name or names of his said trustees, or the survivor or survivors of them, at his own cost, to prosecute suits for the recovery of all or any of the said lands &c. within the said four years, as fully and absolutely as if the assignment had never existed. The grantees, at the same time, were at liberty to sell all or any of the lands in Northumberland county within the four years, notwithstanding the above reservation.</p> <p>On the same day the deed was acknowledged before Frederick A. Muhlenberg, a justice of the Court of Comngm Pleas for Montgomery county; and on the 26th February 1790 it was recorded in Northumberland county.</p> <p>• On the 29th April 1788, Israel Jacobs and others, twenty in number, creditors of Thomas Rees, recognizing the above stated indenture, in consideration thereof did agree to suspend all demands against Thomas Rees for four years from the 1st of April 1788, yet not so as to debar them from demanding a dividend of such money as should come to the hands of the trustees within that period; they also released to Rees his household furniture, and ratified and confirmed the agreements made by the trustees with Rees.</p> <p>On the 25th March 1789, Abraham Weitner obtained a judgment in Montgomery county against Thomas Rees and another, in an action of debt instituted to December term 1787.</p> <p>On the 15th March 1792, Weitner, by an instrument of that date, recognized the deed of Thomas Rees of 28th April 1788, and also the deed of the 29th April 1788, and bound himself, his heirs &c. to abide by the conditions of the last mentioned deed, in consideration of the former, as fully as if he had executed the same.</p> <p>A scire facias upon the judgment obtained by Weitner in March 1789, was issued by his executors, returnable to February term 1796, in Montgomery county, to which the sheriff returned “ nihil.” On the 9th February 1796, a judgment nisi was entered for the plaintiffs. A testatum fi. fa. issued to Northumberland county, returnable to August 1797, upon which there was no return of a levy and condemnation although both were made. A testatum venditioni exponas then issued to November 1797, and upon this writ the land in question was sold by the sheriff to Gabriel Heister ^ the lessor of the plaintiff, and a deed made accordingly.</p> <p>If this court should be of opinion in favour of the plaintiff, “judgment to be entered for him in the Circuit Court nunc pro tunc; but if in favour of the defendant, then in the same manner a nonsuit to be entered.</p> <p>The case was argued at July term 1808, by Duncan on the part of the plaintiffs, and by D. Smith and Watts for the defendant; and was held under advisement until this day, when the judges delivered their opinions.</p> <p>The Chief Justice did not sit upon the argument, having begn of counsel with the defendant.</p>

THIS was an appeal from the decision of RIDC May 1807. -®- ridge J. at a Circuit Court for Northumberland, in , It was an ejectment for a tract of land in Northumberland… Held: his application No. 711, and on the 4th May 1794, a survey was made for Dale, which extended the lines so as to include 320 acres, comprehending more of Boards survey. Dale also became the proprietor of Pingley’s application. The questions were two. 1. Whether Boon was the owner of Burk’s warrant. 2.

IN ERROR. ¡ RROR to the Common Pleas oí Centre county. Spangler and Wife declared against Packer in the court below for slander of the wife.

THIS was an appeal from the decision of the late Mr. Tustice Smith, at a Circuit Court for Huntingdon in J ’ ° April 1807. It was an ejectment for a tract of land m the cosnty of Huntingdon, to which the plaintiff’s title was as follows: On the 28th July 1766, a warrant issued to Baynton and Wharton, calling for “ the Saplin land, and the Indian path ■ ° ' “ leading to the great island.

a THIS was an appeal from the decision of Smith J. at Circuit Court for Centre county in May 1807.

IN ERROR. WRIT of error to the Common Pleas of Huntingdon county. The action below was against Swoop as a common carrier, to recover damages for the loss of the plaintiff’s goods, which he undertook to carry for hire from a place on the Juniata to Columbia.

E* The plaintiffs below declared in debt upon a bond dated t]ie twentieth da}- of May -1799.

<p>IN ERROR.</p> <p>V Ta writ of error to the Common Pleas of Bedford ' county, the case was thus:</p> <p>Dans dale, tbe plaintiff below, brought an ejectment to April term 1805, for 150 acres of land in the township of ‘ Dublin, to which he proved the following title.</p> <p>John Burd the elder was in his life time entitled to the . ... e „ ,, , m question, by virtue of an improvement. He died jn tPg year 1792 having by his will devised the same to Eli-* zabeth Walker his grand daughter in fee. Elizabeth Walker, jn tjje year 1797 intermarried with Charles Sipes who had, . , ■*. issue by her; and m August 1797, Dansdale obtained a j udgittent against Sipes, issued a fi.fit. to November 1797, and levied upon the property. No inquisition was held to condemn the land, but it was sold to Dansdale under a venditioni exponas, and a deed acknowledged by the sheriff the 25th February 1800. Sipes and his wife, were alive at the time of the trial.</p> <p>The defendant set up, 1, A title in Sa7nuel Riddle. 2, In George Burd.</p> <p>Riddle’s title. In October term 1784, M. Sanderson obtained a judgment against John Burd the elder. A scire facias to revive the judgment issued against Benja77iin Burd and William Elliot, executors of John Burd, returnable to November 1797, when the judgment was revived. A fi. fa. issued to January 1798, and a levy made on the premises; a venditioni exponas to April 1798, and an alias to August 1798, under which the land was sold to Riddle, and a deed acknowledged by the sheriff the 31st January 1799.</p> <p>Surd’s title. On the 18th January 1793, Benjamin Burd, the executor of John, took out a warrant for 50 acres in the name of Elizabeth Walker and his son John Burd, calling for old John Bitrd’s improvement, and on this warrant a survey was made the 28d May 1793 of- 52 acres 129 perches. Ou the 18th February 1793 he took out another warrant for 100 acres adjoining the above in the name of his son George Burd, on which a survey was made .the 23d May 1793 of 97 acres 27 perches. These two surveys comprehended the land in dispute. On the 23d February 1794, a patent was granted to George Burd for both surveys, reciting a conveyance from Elizabeth Walker and John Burd.</p> <p>The defendant also took four exceptions to the plaintiff’s title. 1, That the ejectment, being founded upon a title by improvement alone, was barred by the 5th sec. of the act of 26th March 1785, 2 St. Laws 281, there not having been peaceable possession under it, within seven years next before the action. 2, That Sipes had no estate which could be taken in execution. 3, That no inquest had been held under the f. fa. 4, That the sale was after the return day of the venditioni exponas.</p> <p>The plaintiff, in order to defeat S. Riddle’s title, relied not only upon the staleness of the judgment on which it was founded, but upon the following entry on the execution doequet, in the handwriting of the prothonotary’s clerk. “ M. “ Sanderson v. Burd’s Executors. No. 33. Vend. Exp. to “ April term 1798. Land not condemned at inquest. Levy “ set aside at April 1798, to levy anew. Inquisition held, “ and condemned. Vend. Exp. to August 1798. No. 26. re- “ turned, lands sold to S. Riddle for SOL" By which it-, appeared that the original levy was set aside, and the lands sold without a new levy.</p> <p>The benefit of George Burd’s patent, the plaintiff derived to himself by the following evidence. In the year 1786, the elder Burd leased the premises to one William' Gray for ten years upon an improving lease. Gray deposed that in the summer of 1794, Benjamin Burd., who was executor of John, and guardian of Elizabeth Walker, came to him on the land with one Stephen Keepers, and told him that Keepers, who had bought the land, would take it for the unexpired time of the lease, and discharge him from his covenants to improve; and that accordingly he left the land in the autumn. The patent was granted to George Burd about six months before. Elizabeth Walker was a minor when the warrants were taken out. John Burd the younger and George Burd were also both minors, and sons of Benjamin Burd. If Benjamin Burd’s design was to appropriate to himself or his family the property of his ward, it was a fraud, and by operation of law, the possession of Keepers and of any one under him was her possession, and the patent enured to her use; if his design was honest, then it was his intention that his son George should be her trustee, and of course he was a trustee for the plaintiff. And in order to prove that Benjamin had not advanced money in discharge of old John Burd’s debts, so as to entitle himself to appropriate the 150 acres to his own use, the plaintiff offered in evidence the administration account of Benjamin, to which the defendant objected; but the court admitted it and the defendant took an exception.</p> <p>The defendant then called the sheriff who executed the process in Sanderson’s suit, to prove that the entry on the execution docquet was made by mistake, and that it was not the levy but the inquisition that was set aside, and a new one ordered, which took place. The sheriff said that he did not recollect whether another inquisition was held, but from the marks of old wafers to the Ji. fa., and from the return to the vend. exp. he was inclined to think, it was; but this was mere belief, his memory did not serve him, and he should have made the same return if another had not been held.</p> <p>The evidence being closed, the defendant’s counsel prayed the court to instruct the jury that the matters given in evidence by the plaintiff were not sufficient to entitle him to recover. But the court delivered in substance the following charge.</p> <p>Walker President. The plaintiff in this cause claims 10 acres of arable, and 140 acres of woodland, to prove his title to which, he has given in evidence a judgment rendered by this court at August term 1797, at the suit of G. Dansdale against C. Sipes, a ji. fa. to November term 1797, with the levy thereon indorsed, a vend. exp. an alias and pluries, upon the latter of which the sheriff returned land sold to G. Ddnsdale for eight dollars on the 31st January 1799. He has also produced to you a sheriff’s deed for the premises dated the 25th February 1800. These proceedings vest in the lessor of the plaintiff all the title of C. Sipes. To shew you that C. Sipes had title to the premises, the plaintiff has produced the will of John Burd deceased, by which the land in question is devised to E. Walker. He has also produced to you W. Gray, who says that E. Walker intermarried with Sipes previous to August 1797, that he, Gray, took a lease of John Burd in the year 1786 for 10 years, built a cabin, cleared land, and resided on the premises about 8 years, and was in possession at the death of John Burd the elder. This witness also says that after the death of John Burd, B. Burd, who had sold the premises to Keepers, induced the witness to give the possession to. Keepers in consideration of being released from such covenants as to improvements as remained to be performed by the witness. The land in question was at the death of John Burd held by improvements. Gray having taken a lease and made a bona fide improvement under J. Burd, such a title accrued to J. Burd as could be devised, and by law Gray became the tenant of the devisee. Benjamin Burd was testamentary guardian of E. Walker, and Gray was tenant to him as such. Gray, by direction of B. Burd, gave up the possession to Keepers. The person who came into possession under Gray at the instance of B. Burd, the guardian of E. Walker, must be considered as her tenant; y. Burd died in 1792. Gray's lease did not expire until 1796. The two warrants which have been given in evidence were taken out in 1793, and a patent issued to George Burd, in which is recited a deed from E. Walker and J. Burd. It has been contended that this ejectment not having been brought within seven years from the desertion of the improvement by Gray, is barred. But does the law cited by the defendant apply? It does not. 1st, Because the possession was obtained by j6. Burd, the guardian of E. Walker. This possession and the taking out of the warrants must be considered either as fair or fraudulent. If fair, then these warrants were taken for her use. 2d, If the possession and warrants were not taken for her use, then there was a fraud practised by the guardian, and the warrants would enure to the use of his ward; for if it was permitted to a guardian to take out a warrant to cover for his own use the' property belonging to his ward, the court would be called on to sanction a fraud.</p> <p>But it has been contended that C. Sipes, by his marriage with E. Walker, did not acquire such estate in the premises as could be sold and transferred by the sheriff pursuant to the act of assembly authorizing the sale of lands, &c. This act authorizes the sale of lands; and it would be absurd if the greatest estate could be sold, and a less estate could not.</p> <p>It has been objected that no inquisition was held. The holding of an inquisition is necessary, only where the plaintiff could hold the land for seven years. In this case no inquisition was necessary, as an estate only for the life of E. Walker could be sold, which might terminate in less than one year.</p> <p>It was also objected that the vend. exp. of the plaintiff was returned before the sale. But a venditioni exponas is not necessary, to the validity of the sale of such an estate as is now in question. It might have been sold on the fi.fa. as a chattel. We are therefore of opinion that the sale was legal, whether the return day of the venditioni was past or not. The two warrants have something extraordinary in their appearance. The reason of taking two warrants is uncertain; whether to avoid interest, or to limit the claim of E. Walker, is uncertain; but in either case the warrants must be presumed to be taken for her use.</p> <p>The next question is on the title of the defendant. It is founded on a judgment entered against John Burd in 1784; and what is a little remarkable, is, that this judgment had slept till about the time execution issued at the suit of Dansdale against Sipes. This circumstance ought to be considered by you. The length of time that elapsed from the entry of the judgment to the issuing of the scire facias, is not sufficient to raise a legal presumption that the judgment was paid; but it is for you to presume whether this judgment was not pressed at the instance of Benjamin Burd, and whether the sale was not to enure for his use, or to the use of Keepers, who purchased of him. The fi-fa. at the suit of Sander-son issued regularly; a vend. exp. and alias were issued, upon the latter of which the sheriff returns a sale to Mr. Riddle; but an entry appears on the execution doequet in the handwriting of Mr. Break, a clerk in the office, at April term 1798, levy set aside. In July 1798, an inquisition was held, and the land condemned. What is the operation of all this? It has been alleged that this entry was made by mistake, and that it was not the levy, but a former inquisition that was set aside. But the defendant has failed in proving this allegation. It has been urged by the defendant that at this time the purchaser is not to be affected by the entry on the doequet, and that this jury cannot inquire into the regularity of the sale. The act of assembly says that the title of the purchaser shall not be affected by the reversal of the judgment, on which the sale shall be had; but that is not the case before us. We must take the record to be true; the levy was set aside, and therefore the venditioni exponas was a nullity. The person who purchased, was the attorney of the plaintiff, and must have been conusant of this fact, though he might have forgotten it; the levy having been set aside, the sale falls oí course.</p> <p>But it has been urged that the legal title having been vested in George Burd, by patent, in the year 1794, the plaintiff cannot recover. If we are right, in what we have before said, that Benjamin Burd acted as guardian of E. Walker in talcing out these warrants, the defendant cannot set up a right in a third person, which was procured by her guardian.</p> <p>It is the unanimous opinion of the Court, that the plaintiff is entitled to recover the whole of the land described by the two warrants.</p> <p>To this charge the defendant’s counsel excepted, and the jury found for the plaintiff. A motion was then made for a new trial, the reasons for refusing which, the Court reduced to writing, and filed of record agreeably to the 25th sec. of the act of'24th February 180G. 7 St. Lazas 345. These reasons came up with the record; but from the judgment of this court, it will be seen that they were immaterial.</p>

IN this case a verdict was taken for the plaintiff at the Mercer Circuit in September 1808, subject to the opinion of the court upon a point reserved; and judgment being entered for the plaintiff, the case came to this court by appeal, A certain John Kean who had commenced a settlem ent upon the tract of land in question, articled to convey 100 acres of it to the defendant, who agreed to make settlement &c. in five years, and to clear and fence four acres in Kean’s part.

The case reported by his Honour, so far as it is material to the point decided here, was shortly this: The lessor of the plaintiff claimed the premises in the ejectment, under a deed from the sheriff of Allegheny county, the same having been sold under a judgment obtained in 1774 against George Croghan, to whom it had been granted with other land by the Indians before the year 1761, and who was also the proprietor of an application of the 1st April 1769, for 1500 acres the…

THIS was an appeal from the decision of Judge. Yeates, at the Bedford Circuit Court in October 1807. The lessors of the plaintiff claimed the premises in the ejectment under an application of the 24th February 1767, for 300 acres, in the name of Thomas Thompson, who by deed, in consideration of five shillings, conveyed to Robert MlKinzie.

<p>IN ERROR.</p> <p>THE plaintiff, at an election for borough officers in the borough of Pittsburg, in March 1809, offered his vote, he being a freeholder in the borough, and having resided therein one year immediately preceding the election, and within that time paid a borough tax. The defendants, who were the inspector and judges of that election, refused the vote upon the ground that the plaintiff was not a citizen, and was not entitled to vote for members of the general assembly.</p> <p>A case was thereupon made for the opinion of the Common Pleas of Allegheny, to try the plaintiff’s right; and the judgment of that court being in favour of the defendants, it was brought for revision to this court, by writ of error, (a)</p> <p>The point was here argued by Mountain for the plaintiff, -and by Wilkins for the defendant's; but as the question turned ' exclusively upon the construction of certain, acts of assernbly, which are particularly stated and explained in the opinions of the judges, it becomes the less important to give a note of the argument.</p>

in ERROR. UPON error to the Common Pleas of Butler county, the case was thus: lessor of the plaintiff below, claimed the premises in the ej ectment as an actual settler.

<p>THIS was an appeal from the decision of Mr. Justice Teates at the Somerset. Circuit Court in October last.</p> <p>It was on action of ejectment, in the form prescribed by the late act of assembly, on the trial of which, the following circumstances appeared in evidence.</p> <p>The plaintiff and two other persons his intimate friends, sent for the defendant to meet them at a tavern. He came early in the morning, and a pint of bitters having been drunk among them, a barter was proposed between the plaintiff and defendant for the farm of the latter, the premises in the ejectment, a body of about 450 acres, situated near to the new turnpike from fort Cumberland, to be paid for by a quantity of store goods belonging to the plaintiff. There was some negotiation as to the terms, but the parties finally arranged the bargain by an article of agreement, by which the defendant sold to the plaintiff the farm in question for 3000 dollars, a part of which not exceeding 500 dollars was to be paid in money, to be applied to the discharge of certain debts and costs of suit due from the defendant to other persons, and the residue was to be paid in store goods, the price of which was to be fixed by two merchants, if the parties could not a’gree. The defendant was a farmer unacquainted with merchandize, and had a wife and a large family of children with whom he resided on the farm. The plaintiff was a storekeeper. Immediately after the bargain, the defendant wished to annul it, but he was told it would be child’s play, and that the plaintiff did not make a child’s bargain, but would stick to the article. The succeeding night he was much distressed, and said he had ruined his family; and on the following morning he applied to the plaintiff to let him off, who refused. For some days afterwards he was undecided as' to his course, but he finally told the plaintiff that he wa.s determined not to adhere to the bargain; and before the bringing of the action, he offered to submit to arbitration the damages to be paid for the breach of contract. The plaintiff, after the contract, paid a small sum of money on account of the defen» dant’s debts; but whether the payment was made before or after the defendant had refused performance, was nor. very clear. Some evidence was offered to shew that the defendant had been sent for to the tavern by the plaintiff, and that in the course of the business he told the defendant that nothing but the sale could save his land from execution; but a witness swore that one of' the other persons sent for him with a view to purchase some of his cattle. There was testimony also as to the value of the land, which the defendant’s witnesses thought was worth 3750 dollars, and the plaintiff’s about 2700 dollars.</p> <p>His Honour Judge Yeates told the jury that there was nothing in the evidence which would authorize the court to say that the contract was void, however indiscreet it might have been on the part of the defendant; but the evidence was for their consideration. The jury however found a verdict for the defendant, which upon a motion for a new trial was set aside, and it was from this decision-that the defendant appealed.</p>

for the defendant obtained a rule upon the o shew cause why he should not return the undage charged and received by him in this case.

THIS cause came before the court upon a case, which stated in substance as follows; Joseph Morris and wife on the third of August 1774 convey» ed a lot of ground in the county of Philadelphia to Matthew Clarkson and Edward Bonsall in fee as tenants in common and not as joint tenants, reserving a rent charge of forty dollars per annum which the grantees covenanted to pay in the following terms: “ and the said Matthew Clarkson and Edward Bonsall « for themselves, their heirs,…

<p>CERTIORARI to a Justice of the Peace.</p>

in ERROR. REPLEVIN by Israel the plaintiff below for a sow and seven pigs. The cause went to trial m the Common Pleas of Philadelphia county upon the issue of property, and the jury found for the plaintiff.

<p>The proprietor of a ground rent in fee who obtains ajudgment in covenant for the arrears, and sells the land, be paid the whole of the rent m arrear out of the proference1 to^older judgments,' but inasmuch as he land for payment, he cannot have interest upon the arrears,</p> <p>• %■ Whether interest on rent is recoverable in any case.</p>

IN ERROR. TPON error to the Circuit Court of Bucks county the I I ■ J case w as thus: Qn the second of November 1798 the defendant signed a ° bond and warrant ot attorney for the payment of six thouSand dollars to John Browne Cutting, who on the 15th No- ° vember assigned it under his hand and seal m the presence of w*tnessesi to Baring the plaintiff; and on the 2d July 1800 judgment was confessed in the Common Pleas of Bucks county.

^JERTIORARI The proceeding before the magistrate, was by summons to answer a plea of debt or demand not exceeding one hundred dollars; and the judgment was for twenty-nine dollars seventy-six cents, which by the eviden'ce sent up with the record, was rendered for the wrongful taking of the plaintiff’s goods for a militia fine.

<p>An assignment aU ¡lis property to trustees for ■such creditors as should within execute a release of all deif certain oFthe creditors agree thatCcondition°n and is a transfer from the time of thereforea/. fa., issued after but before the6 execution of a ed upon the the sheriff^a’ trespasser.</p> <p>theism assignment stipulating valid upon general</p>

<p>ffifiER TIORARI by the defendants to the Common Pleas of Philadelphia county,' to remove the record in an assize of nuisance,</p>

<p>IN this cause a judgment for a sum exceeding sixty dollars, was rendered against the defendant by an alderman of _ . , “ .. , , , . the city on the 22d July 1805; and alter the expiration oi twenty days, but before execution had issued, the defendant j j j 1 offered to enter special bail, to obtain a stay of execution for nine months, agreeable to the 9th section of the act of 28th • r. r mi i i r , , March 1804, 5 St. Laws 390. ihe alderman refused to take the bail, and on the 1st November 1805, issued execution.</p> <p>The record being then removed to this court by certiorari, the defendant filed an exception to the execution. He , . P , , , . terwards gave notice ol his intention to submit it to arbitration under the act of 29th March 1809, 9 St. Laws 125, to which the plaintiff objected; and it was now agreed to cuss together the validity of the exception, and the , , , , . dant s right to the arbitration.</p>

THESE causes were brought before the court by certio-' rari to an alderman of the city, and depended upon the same principle.

<p>r § TIE plaintiff and defendant were divorced a mensa et X thoro at December term 1802; and in September follow- , . . . . mg, this court, pursuant to an agreement between the parties, decreed that the defendant should pay to the wife three hundred dollars per annum in equal monthly payments, transfer t0 [ier some personal property, and execute a conveyance to ,. , r . , , trustees for her use, of an estate in Jyeto Jersey worth about twe*ve thousand dollars, which she had brought him in marriage; the whole to be in full of all claim of alimony and dower. And in case the payments should be delayed three , . . , . . weeks after the time appointed, an attachment might issue to enf0rce the decree, without the necessity of applying to the court.</p> <p>The transfers and conveyance were-duly made; but. upon the affidavit of the wife on the 12th January 1807, that three hundred and twenty-five dollars were due for arrears of' alimony, an attachment issued; and at March term following, ^aw^e *or ^ie defendant obtained a rule to shew cause why the attachment should not be quashed, upon the ground of a reconciliation prior to the attachment,</p> <p>The rule being now called up for argument, the defendant,, to prove the fact of reconciliation, read depositions tp the following effect:</p> <p>'Henry Ward deposed that Martha Tiffin, after having been separated some time from her husband, came and resided with him at his house in Philadelphia about the 6th of September 1806; that they lived together in apparent harmony and mutual good will, until some time in October, when the husband became involved in difficulties, and executions were laid upon his furniture; and that in about a week or ten days afterwards she left his house, where he nevertheless continued, to reside for several months, when he sailed for the West Indies. The witness, who lived in the same house the greater part of the time, was present at several disputes and violent quarrels between husband and wife, in one of which she appeared to have been indulging in drink more than was proper; but after their quarrels they retired at night as man and wife. Tiffin’s affairs were in a desperate situation when the wife returned; and at the time when the executions were levied, she said she woidd advance something out of her own money to discharge -them, if the witness would advance a part; but upon inquiry into his affairs, she said, he was more involved" than'she; expected, and nothing'was done. The furniture was then sold under the execution, and bought by the witness, who 'took possession of thé house, and permitted every thing to remain in it until Tiffin• went to the West Indies; but upon 'Mrs.' Tiffin’s return, afterhaving been absent sometime, the witness ordered her to leave the house.</p> <p>John B. Pons deposed that at Mr. Tiffin’s solicitation, Mrs .Tiffin left her house in New Jersey and 'came to reside with her husband, in September 1806; that he worked in Mr. Tiffin’s shop, and saw Mrs. Tiffin almost every hour of the day, managing and directing as a mistress, and appearing to agree well with her husband, until a short time after the 14th of October, when an execution was levied, and she left the house.</p> <p>It appeared by the record that Lee, who was security for Tiffin upon the attachment, was plaintiff in one of the executions levied on his furniture and goods.</p>

in ERROR. UPON a writ of error to the Common Pleas of Chester . county, the case was thus: It was an action of trespass and false imprisonment against Wilson, to which he pleaded not guilty aná justification, with leave to give the special matters in evidence.

ULE upon the plaintiff to shew cause why the inquisition and condemnation of the defendant’s estate should not be set aside, he not having received notice of the time and place of holding the inquest.

<p>If a plaintiff up'on^hed'eféndant’s lands, him1 in'execution upon a ca. may be set aside at the election of the defendant; but if he submits to the ca. sa. and obtains a disci large from it {aw^Uien^he111* Ji.fa. and all proceedings under it are |one; and if the plaintiff sues out a ’venditioni exponas and sells, the court will not permit the sheriff to acknowledge a deed to the purchaser</p> <p>the defendant are aliened by him before the plaintiff’s judgment or execution, the plaintiff is not obliged to take a scire facias against the terre-tenants, before he can have execution in the hands of the alienee.</p> <p>An execution within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the act of 4th of April 1798.</p> <p>Whether a sale of the defendant’s lands under a younger judgment, affects the lienbf aij older one?</p>

IN ERROR. rTHHIS was a bail bond suit, brought by Adams to Septem^er term 1805 in the Common Pleas- of Philadelphia county, The declaration was filed in the original action in Novemher 1805; and in March 1806, a docquet entry was made in suit, that the plaintiff’s attorney agreed to the filing of bail in the original, upon payment of costs in this.

IN ERROR. UPON the trial of this cause in the Common Pleas of Philadelphia county, Girard the defendant below moved for a nonsuit upon matter of law, which the court refused to order. He then produced his evidence, and in the end requested the court to charge that the plaintiff could not recover, which was also refused; and a bill of exceptions was sealed upon both points.

THE defendant was indicted in the Quarter Sessions 0f , Montgomery, for having, by colour of being gatekeeper of the Chesnut-Hill and Springhouse Turnpike unlawfully demanded and received of one Aaron Keyser, the sum of four cents, for openjng the gate of the said company, and permitting him to pass with a sled and two horses.

<p>If an insurancé broker pays the premium to the underwriter after notice from the assured, before the premium was due, that the risk never commenced, he cannot recover it from the assured, and turn him round to'a suit against the underwriter for a return.</p> <p>No exception which does not appear wholly upon the face of the report, can be taken after the four days have expired.</p>

<p>IN ERROR.</p> <p>W RIT of error to the Common Pleas of Philadelphia i county.</p> <p>This action was brought by William Widdijield the defenfiant in error, against John Widdifield, William Turnbull and Anthony Morris, the plaintiffs in error, as the drawers of a promissory note for four hundred dollars dated at Lausanne the 26th June 1806, and signed by John Widdijield with the „ r cv 7 tit- 7,. n 7 7 i .firm of John Widdifield and company.</p> <p>Upon the trial of thecause, the plaintiff, to prove that the defendants were partners under the firm of John Widdijield and company, produced a witness, who deposed, that before the partnership commenced, Anthony Morris and William Turnbull came to Lausanne, where the three defendants had an agreement drawn up of partnership between them, whether written or printed he did not know, as he had not seen it; but he knew there was such an agreement, because Turnbull and Widdijield told him so.</p> <p>The counsel for the defendants thereupon objected, that, as it appeared by the plaintiff’s evidence, that if any such partnership as he alleged existed, it was contracted by a written instrument, no parol proof of the partnership could be received; but the written instrument should be produced, or if in the possession of the defendants, notice should have been, given to them to produce it; and as it was not produced, nor any notice given, the plaintiff had not maintained the issue on his part, and therefore they prayed a nonsuit. The plaintiff’s counsel then gave a written notice at the bar to produce the agreement; and the court, without however regarding the notice, refused the nonsuit for reasons which are not material.</p> <p>The-plaintiff afterwards produced another witness to prove that the alleged partnership existed; and he wás opposed upon the same grounds. But the court admitted the evidence, and the defendants took a bill of exceptions to the decision upon both points.</p> <p>Upon the argument in this court, various exceptions were taken to the record, and to the bill of exceptions; but the material question was the admissibility of the parol evidence.</p>

<p>seven-mile stone. QERTIORARI to the Quarter Sessions of Philadelphia county, to remove all petitions, orders, fkc. upon a certain application by Samuel Wheeler and others, trustees of t^le Schuylkill Falls’ Bridge, for a road from the western end of the said bridge, towards the old Lancaster road, near the</p> <p>The petition for the road was presented to the Quarter ®ess*ons at ^ June sessions 1808, when six viewers were appointed, without specifying in the appointment their place °f residence or that they -were freeholders; and their report was made to September term following, stating that they had viewed the ground in the presence of two county commissioners, (a standing order of the sessions requiring two days’ notice of the time and place of such views to be given to the commissioners,) and that they had proceeded to lay out a Pu^dc road by the courses and distances mentioned in the report, which they were of opinion should be of the breadth of fifty feet. To this report was attached a plot or draught of the road, shewing the face of the adjacent country, and the improvements through which the road would pass.</p> <p>At the September sessions the court made an order of review, and appointed six reviewers with the same omission as before, who made a report to December sessions 1808, stating the attendance of the commissioners, and altering ■the courses of the road, a draught of which and of the improvements was in like manner attached.</p> <p>At the December sessions an order of re-review was made upon the petition of the trustees above mentioned, and.six re-reviewers appointed as before, who at March sessions 1809 reported their approbation of the road first returned, and that they had proceeded to lay it out, one of the county commissioners attending, according to the courses and distances contained in the report. A similar draught was also attached to this report; and thereupon the court at the same sessions confirmed the report of the re-reviewers, ordered the road to be entered of record, and directed the supervisors to open it of the breadth of forty feet.</p>

THE fourteenth section of the act to incorporate the Cheltenham and Willow-Grove Turnpike Company, enacts “ that if the said company shall neglect to keep the u said road in good and perfect order for the space offve “ days, and information thereof shall be given to any justice “ of the peace in the neighbourhood -within the county where (X the repair ought to be made, such justice shall issue a pré- “ cept to be directed to any constable, commanding him to “ summon three…

<p>The arbitration law of 29th March 1809, embraces actions in the Supreme Court; but an appeal from the award «f arbitrators, lies only to the Common Pleas.</p> <p>If the defendants are a body corporate, they are entitled to appeal without entering into a recognisance of bail.</p>

IN this case, Hemphill moved for a rule upon the defendant, the secretary of the land-office, to shew cause why a mandamus should not be awarded, commanding him to prepare and deliver patents to Jonathan Smith, for various tracts of land for which warrants had been issued in favour of Peter Wikoff and fonathan Bayard Smith, under a law . , , / , , , , - passed the 19tn February 1801; and which warrants had ^een regu^ar^y transferred to the said Jonathan Smith.

TtA WLE obtained a rule upon the defendants, who were supervisors of the roads in the township of the northern, liberties, to shew cause why a mandamus should not issue, commanding them to pay two orders drawn upon them by Frederick Wolbert and others justices of the peace, in favour of Robert Brooke and Jacob Kessler.

<p>THIS was an ejectment for a house and lot in the city of Philadelphia, under the following circumstances, \vl were stated in a cas.e for the opinion of the court:</p> <p>Samuel Eldridge of the city of Philadelphia died intestate on the 13th of October 1804, seised of the premises in the ' declaration mentioned. At the time of his death, his wife was enseint of a son who was born on the —— day of-, 1804, and named Samuel, to whom the premises descended, and who became seised thereof. The widow of the intestate afterwards intermarried with John Har land junior, by whom she had issue a son now living, shortly after whose birth, Samuel Eldridge the younger died seised of the premises, an infant, unmarried, and without issue, leaving the following relations, on the maternal side, viz. a brother of the half blood, a mother, a maternal grandfather and grandmother. On the paternal side he left,</p> <p>1. Jane Smith the only child oí-Elihu Eldridge, who was the oldest son of Daniel Eldridge, the oldest son of the intestate’s great grandfather; and Daniel Eldridge the second son of the said Daniel.</p> <p>2. Thomas Eldridge, William, Eldridge, and Mary Bishop, the children of Thomas Eldridge the second son of the said great grandfather.</p> <p>3. Martha Garetson, the daughter of Esther, who was a daughter of the said great grandfather.</p> <p>4. Zilpah Hand and Jehu Eldridge, the children of Eli Eldridge, who was the fourth son of the said great grandfather.</p> <p>5. Hannah Cresoe, (the plaintiff) a daughter of the said great grandfather, and the intestate’s paternal great aunt.</p> <p>The question for the opinion of the court was, whether the premises descended to the heir at common law, or were to be distributed under the intestate laws of Pennsylvania; and if the latter, to how much if any the plaintiff was entitled,</p>

<p>IN ERROR.</p> <p>THIS was a writ of error to the Common Pleas of Phi- . ladelphia county, upon which the general errors were assigned. . °</p> <p>The action was brought to March term 1806, against Gordon the plaintiff in error, and at the trial a verdict was found for Kennedy, and the damages assessed generally at twelve hundred dollars.</p> <p>_ The declaration contained seven counts. The last five were upon an indebitatus assumpsit for work and labour, a quantum valebant for the same, money laid out and expended, money lent and advanced, and money had and received.</p> <p>The first count recited, that whereas on or about the eighth day of July one thousand eight hundred and five, it was agreed by and between the said Elisha Gordon and the said polín G. Kennedy in manner and form following that is -1 J ° to say, that the said John should exercise his skill as a brewer at the brewhouse of the said Elisha, and teach the said Elisha s son the art and mystery of brewing, m consideration whereof the said Elisha did then and there undertake to pay the said John the sum of eight hundred dollars per annum in equal quarterly payments, and provide for the said^ John a lodging room, with bed, bedding, and fuel at the cost and expense of the said Elisha, and the said John and Elisha did then and there undertake, each to the other of them, that proper articles of agreement should be drawn , - , . . . . ° , . , . , and executed; m consideration or which premises, and confiding in &c., the said John, on or about the day and year aforesaid, at &c., entered the brewhouse as the said Elisha’s brewer, and continued for a considerable time, to wit for the space of several months, to superintend the said brewery, and hath always from the time of making the said agreement, hitherto well and truly performed and fulfilled the same in all things on his part &c., and still continues willing to perform and fulfil &c., yet the said Elisha, not the said agreement, nor his said promise &c., from time to time did refuse, and still refuses to execute certain articles specifying the said agreement, although drawn up &c., and contriving &c. to deceive and defraud the said John in this behalf, hath not paid to the'said John the sum of eight hundred dollars, nor any part thereof, nor hath he accommodated the said John with a room, nor provided for him the bed See. aforesaid, although often requested so to do, but the same to do the said Elisha hitherto hath wholly refused, and still doth refuse.</p> <p>The second count was as follows: And whereas heretofore, to wit, the day and year aforesaid at the county aforesaid, in consideration that the said John, at the special instance and request of the said Elisha, had undertaken and did then and there superintend the said Elisha’s brewery, and did then and there instruct and teach the said Elisha’s son in the art and mystery .of brewing, he the said Elisha undertook, and then and there faithfully promised the said John, to pay him the sum of eight hundred dollars per annum, and to provide for the said John a convenient lodging room with bed bedding and fuel at the cost, and expense of the said Elisha; and although the said John did perform, and is still ready and willing to perform his promise and undertaking as aforesaid, yet the said Elisha, not regarding his lastmentioned promise and undertaking so by him made in manner and form aforesaid, but contriving and fraudulently intending craftily and subtilely to deceive and defraud the said John in this behalf, hath not yet paid to the said John the said last mentioned sum of eight hundred dollars nor any part thereof, nor hath he accommodated the said John with a convenient lodging room, nor provided for his use the bed, bedding andfuel as aforesaid, although often requested so to do. But the same to do hath hitherto wholly refused &c.</p>

A PPEAL from the Orphan’s Court of Philadelphia MX. county, The account of the appellant, as executor of George hooper, having been settled by auditors, and a pro forma decree in confirmation of the report having been rendered, ^ ^ Orphan’s Court, he entered the present appeal, and filed seven exceptions to the decree. ^lewhich was the only material exception, was as follows. “ For that in the account returned to the said Orphan’s “ Oourt by the said auditors, and annexed by…

in ERROR. UPON a writ of error to the Common Pleas of Phila- , , . , r „ delptna county, the case was as follows: The action was brought upon a.promissory note dated the 30th January 1804, by which Neilson, the defendant below, promised to pay to the plaintiff or his order, one day after the ■conclusion of the drawing of the extra class of the Easton Delaxvare Bridge Lottery, twelve hundred and fifty dollars, without defalcation, for value received.

IN ERROR. * | UI IS was an action of covenant, brought by the defendauts *n error ™ the Common Pleas of Philadelphia county-, upon a valued policy of insurance dated the 25th of 1805, upon goods on board the ship Charles, Richard Stites, master, at and from Ilavanna to the island of St. Thomas; 7000 dollars at seven and a half per cent.

IN ERROR. T y PON a writ of error to the Common Pleas of Philadelphia county, the case was as follows: „ , . Massinger the plaintiff below, brought the present action to March term 1807, against Schee the plaintiff in error, and a certain William French, as to whom the sheriff returned non est inventus.

THE defendant was indictecl at an * Oyer and Terminer holden by the judges of the Supreme Court after the December term, for forging, and for uttering and publishing as true, a counterfeit ten dollar note of the Bank of North America. The indictment contained two counts. The 1st was for forging, and procuring to be forged, the note in question.

<p>IN ERROR.</p> <p>THIS was an action of dower, brought by the defendant in error in the Common Pleas of Montgomery county, where the following case, which was agreed to be considered as a special verdict, was stated for the opinion of the court.</p> <p>William Dean was seized in fee of the premises in question in his own right, in his life time, and during his coverture with the demandant. The said William and the demandant, by deed dated the 27th day of December 1777, conveyed the premises to John Tomkins, from whom the. same, by several mesne conveyances, came to the defendant; but the demandant never acknowledged the deed. The said William died, leaving the demandant to survive him, who is still in full life. The said William did not die seised. If the opinion of the court upon the above facts shall be in favour of the demandant, judgment to be entered for her; if in favour of the defendant, then judgment to be entered for the defendant.</p> <p>The opinion of the court below being in favour of the demandant, judgment was accordingly rendered for her, and the case was removed to this court by writ of error.</p>

<p>The court will not grant a mandamus to the trustees of an , incorporated church, to restore the prosecutor to the possession of a pew to which he claims title, inasmuch as he has another remedy by an action on the case against the person disturbing him.</p>

<p>XCEPTIONS to a report of refetees.</p> <p>This action was brought upon two policies of insurance, dated the 25th of March 1809, and signed by the defendant, as president of the United States Insurance Company. The one was on the “ good British brig called the John,)’' valued at 8000 dollars, and the other upon her freight, valued at 4000 dollars, at and from Havanna to Baltimore, at a premium of four per cent. At the bottom of each policy was written a memorandum, that the insurance was “ declared “.to be against perils and dangers of the sea only,.and to end “ on capture.”</p> <p>The brig and her cargo were totally lost upon a-reef of rocks on the 19th of March.</p> <p>The referees to whom the cause was submitted under a rule of court, reported in favour of the plaintiff as for a total loss; and to this report the defendant filed the following ex* . - -ceptions. . ' ,</p> <p>1st. That the terms “ British brig” amounted to a ranty that the vessel was a British brig, the proof of which fact was indispensably requisite to the plaintiff’s recovery, But no s,uch proof was furnished to the referees. On the contrary it was in evidence, that the said brig had not a British register, or any other document, giving to her the character'and privileges of a British vessel; and it was not pretended by the plaintiff, nor was the least evidence offered io the referees to shew, that she was a British built vessel,</p> <p>2d. That if the terms in the policy did hot amount to a Warranty, the order of insurance, which was in the same language, was a representation that the brig, was a British vessel, which was material, and should have been substantially pioved. But no such proof was furnished to the referees.</p> <p>3d. That it was proved to the referees that the brig was . ..i.,., i not seaworthy when the risk commenced.</p> <p>Upon tlie examination of the referees, who were all merchants and underwriters, they stated, that it was proved to them that the brig was condemned as unse.aworthy at ¿fete Providence, a short time before the voyage insured, and was bought by Mackie. That this condemnation they believed was produced by bribery, the brig having before that belonged to an American of the name of Toby, who had sailed in her from the United States to the West Indies, and who himself requested the survey and condemnation. That Afackie navigated her from New Providence to the Havanna, where considerable repairs were done upon her. That having taken in an entire cargo on freight, he sailed from the Havanna on the 11th March at 5 P. M. having several masters of vessels on board as passengers, and that at midnight, upon the pumps being sounded, though there had not been any bad weather, it was found that there were two feet of water in the hold, in consequence of which she put back. That the leak was ascertained to be in the side of the brig, which had not been perfectly caulked; but that after caulkers were obtained, the leak was very soon repaired, and the brig sailed again on the 16th, and was lost on the 19th. TKat most of the brig’s papers were lost at the time of the shipwreck, and among them as was stated by a witness, aoclearance and licence from the customhouse at New Providence. But there was no register.</p> <p>The grounds upon which they made their report, the referees said were these. They did not consider the terms Vc British brig,” as a warranty, but. as description onfy, and ¡immaterial to the risk. That this opinion- was founded upon ¿'the position of the terms in the policy, it being the usage in (Philadelphia to insert every thing that.was intended to be a j warranty, in a written memorandum at the foot of the instru- | ment. That they thought it immaterial, because the insurance ? was only against the sea risk, and the premium was the common rate for that risk at that season of the year, upon vessels that were known; and therefore they did not require proof of a register. That they were of opinion however that Mackie the owner was a Scotchman, partly because he had a very broad Scotch accent, and partly because he had brought a letter of introduction from Scotland to a gentleman in Philadelphia, and had also stated to a witness such circumstances in relation to a family in Scotland., as the witness believed that no one but a person intimately acquainted there, could know. Bpt that they had no evidence of his domicil or residence' át the time of the insurance, or that he had ever changed the domicil of his birth. They were perfectly satisfied that as a description it was well proved; but one of them said, that had he considered it a warranty, he would have required more proof. With respect to seaworthiness, they were clear that the brig was seáworthy, when she sailed the second time; and they supposed the leak had arisen from the accidental omission of a foot of oakum.</p>

jpNDEBITATUS assumpsit for 'money had and received hy the defendant, for the use of the plaintiffs as assignees, Upon the trial of this cause before the Chief Justice, at the Nisi Prius preceding the present term-, the following facts were in evidence. . ... In the year 1797 David Pinkerton was imprisoned for a c^e^)t due to the United States.

tyA TRICK MOORE and Hannah his wife were seised in fee •C c , r . . r . .. ,' r w oi the premises in right or the wile, on the 13th or June .1786.

THIS was an action on a policy of insurance dated the 28th of September 1803, upon the brig Fair American, valued at 5000 dollars, at and from Philadelphia to Barbadoes &c. The policy contained the following printed clause: “ If the above vessel after a regular survey should be con- “ demned for being unsound or rotten, the assurers shall “ not be bound to pay their subscriptions on this policy.” The cause was tried before the Chief Justice at Nisi Frius in February last, in…

<p>A will in writing of lands may be revoked by the parol repubformer1will in ■writing. And in tairTwhetlicr" the republished arevocatkm,S aS the contents ™paroh if the will itself cannot be found, and the Usual 'secondary^ round is laid p for the secondary evidence.</p>

<p>IN this case, Ingersoll for the defendant, moved for a rule to shew cause why there should not be a new trial, upon the ground that the verdict had been given without evidence.</p> <p>By the report of the Chief Justice, before whom the cause was tried at a Nisi Prius in February, it appeared that the action was brought by the plaintiff to recover his wages as master of the defendant’s vessel, and certain disbursements made by him abroad on account of the vessel and crew. By the deposition- of a witness, the plaintiff proved that he sailed in the brig Liar belonging to the defendant, from Philadelpliia to Cape Fratipo is, and that while there he paid money to carpenters for repairs, and to the crew on account of wages; and that he also paid for provisions and port charges. That from Cape Franfois he went in the brig to Port de Paix, where he again paid port charges; and that on the voyage from Port de Paix home, he was captured by a French privateer, by whom his papers and accounts were taken off or destroyed, and he was carried to Barracoa and condemned. But the’witness could not say how much had been paid by the plaintiff for any particular charge, or in the whole; nor had the plaintiff any receipt or written voucher to support any of his charges, which amounted to 195. dollars. The defendant produced no evidence. The plaintiff’s demand, including his wages, which were allowed to be 40 dollars per month, was for 538 dollars 35 cents, and interest from the commencement of the action;, and the jury gave him a verdict for 456 dollars 65 cents.</p>

<p>in ERROR.</p> <p>UPON error to the Common Pleas of Philadelphia county the case was thus:</p> <p>The action -was debt upon a recognisance in 2000 dollars, entered into by the defendant before alderman Keppele, and conditioned for the appearance of Stephen Austin, at the next Mayor’s Court for the city of Philadelphia, to answer to a charge of conspiracy &c. Plea, Nil dehet.</p> <p>At the trial in the Common Pleas, the attorney for the commonwealth gave in evidence the doequet of alderman Keppele, in which was entered the following memorandum.</p> <p>Commonwealth v. Stephen Austin and Eliza Burns*</p> <p>Sur charge founded on oath of George Reinholdt, that they have entered into a conspiracy with an intention of extorting money from him fkc.</p> <p>Stephen Austin in “ 2000 drs. Samuel Emery in 2000 drs.</p> <p>On condition that Stephen Austin be and appear at the next Mayor’s Court to answer.</p> <p>3 Nov. 180/.</p> <p>(signed) S. Austin.</p> <p> Sami. Emery. </p> <p>He also gave in evidence, a certificate under the hand and seal of the clerk of the Mayor’s Court, that the above recognisances were returned to the Mayor’s Court by alderman Keppele on the -5th of November 180/, and remained filed of record therein; and that on the 13th of November 180/, the recognisance of Emery was forfeited in the Mayor’s Gburt, for his default in not bringing forth the body of Austin. This certificate described the recognisances, as they appeared in the alderman’s docquet, except that the word in, after the names of Stephen Austin and Samuel Emery, was omitted.</p> <p>The court charged the jury, that this evidence was not sufficient to support the action, and the plaintiff tendered a/ bill of exceptions.</p>

<p>XN ERROR.</p> <p>ladelphia county, upon which the general errors were rTT'HJS was a writ of' error to the Common Pleas of Phi- , “ assigned. Plea, in nullo est erratum.</p> <p>The action was instituted by summons, against Thomas Fitzsimons and Rachel Heilbron administrators of Haym Salomon, upon a promissory note drawn by the intestate’s a8'cn 1 ¶ and indorsed to Ezekiel Salomon, the plaintiff below,</p> <p>The summons was issued to March term 1807, and returned by the sheriff “ copy left at the dwelling house of “ Thomas Fitzsimons, and nil habet as to Rachel Heilbronf ^llt mentioning the day of service. March term 1807 commenced on the second of March; and on the 20th, ^ plaintiff’s attorney filed his declaration, and signed judgment for want of an appearance,</p> <p>The record not setting forth the date of the service, nor the time when the summons issued, the plaintiff in error, after issue, alleged diminution of the record, and prayed a certiorari to bring up the prcecipe, which was granted, and ^ Prmc fe was returned, dated the 24th of February 1807.</p> <p>Several exceptions were taken to the judgment. 1. ^at a summons was not the proper process against executors or administrators. 2. That there were not ten days l>et;ween the issuing of the summons and the return. 3. That the time of service was not mentioned in the return. 4. That the declaration was not filed five days before the return. S. That the judgment was not entered on the return day. 6. That a common appearance was not entered before the judgment. 7. That judgment was entered for want of appearance, instead of by nil dicit.</p>

<p>Without an ex-the^harter^a'1 corporator cannot be disfranchised, unless Mejias been Ifténce, which ckher affects g.00ci goveniment of the cormdictabie°byS thelaw ofthe fOTe ’a byjaw to" a F®™; ofthe m'embel-s t!).e C0F ^olatlon’IS v0‘</p>

THE plaintiff in December 1808, obtained a verdict and judgment for one uiidivided sixth part of a lot, &c. in the possession of the defendants. On the 2d of January 1809, he took an habere facias returnable to March, which was executed on the 4th of January; and at December term 1809, the sheriff returned that he had delivered possession to the plaintiff of one undivided sixth part of the lot, &c; in the writ mentioned, as by the writ he was commanded.

THIS was a foreign attachment to March 1796, in which judgment was entered at the third term; but no proceeding had since taken place in the cause. The attachment was laid in the hands of Mr. Waddington one of the plaintiffs.

IN this action a case was stated in 1806, by the plaintiffs, by Mr. Lewis as executor of Benjamin Fuller, and by Samuel and William Hibbert, (all of whom had a judgment against the defendant) to decide the right to a sum of money raised under an execution by the bank, and which by the case was agreed to be considered in court. The Chief Justice had given an opinion, while at the bar, in favour of Mr. Lewis; and Judge Teates, being a stockholder in the bank, declined sitting.

THIS was an appeal from the decision of the late Justice Smith, at a Circuit Court for Tori. The cause was tried twice; first, before the Chief Justice in May 180/, when a verdict was found for the defendants, contrary to his charge, and a new trial was ordered; and a ,. , r z. , . „land, second time beiore Judge Smith in May 1808.

T I ’hiIS was an appeal from the decision of Judge Bracken-JL ridge at a Circuit Court for Dauphin. It was an ejectment for a tract of land, under the following circumstances: The plaintiff claimed under a warrant to David MiNair for 100 acres, dated the 23d of August 1742, upon which a survey of 398 acres and a half was made in October 1743, as appeared by the notes of the deputy survey°r, although the survey was not returned.

TRESPASS quare clausum fregit. The declaration stated that the defendants, “ on the 10th day of April 1803, “ with force and arms Eke., broke and entered the… Held: stated the tract to begin at a birch tree by the . , . ' 7 t i , river, thence by certain courses and distances to a red oak by the same river, and thence by the same the several courses thereof, to the place of beginning; no part of the land in the bed of the Susquehanna being expressly covered by the pat&nt.

THIS ejectment was tried before Mr. Justice Teates at a Circuit Court for Lancaster County in May 1806, when a verdict was found for the plaintiff. In May 1808, the late Judge Smith, who rode that circuit, ordered a new upon the inspection of Judge Teates1 s notes; and from this decision the plaintiff appealed. ' The case turned upon the accuracy of a line and boundary claimed by the plaintiff for his survey.

<p>THIS was an appeal from the decision of Judge Yeates at a Circuit Court for Dauphin in November 1805.</p> <p>It was an ejectment for a tract of land, which the plaintiff claimed under a deed with special warranty from one Christopher Lowman, who derived title from the executors ‘ ' . John Meem, by a deed dated the 14th January 1776, which %vas never recorded. . ' '</p> <p>The defendants claimed under a sale made afterwards by the sheriff, by virtue of an execution against a certain . f . „ „ _ J Klme; but their title was m no manner derivedfrom Meem or his executors. They were in possession of the land under J *■ the will of Elizabeth Ferguson, who made them her executors, and authorized them to sell it.</p> <p>r-r. • 1 • • , To obviate any objection to the validity or the deed to Lowman, from the omitting to record it, the plaintiff offered in evidence the deposition of Lowman, to prove that Cox, one of the defendants, offered to purchase of him the land in . . : . . dispute, prior to the time when he iirst had a concern m it; and that he must therefore have known of the deed to Low-7)1(272 • '</p> <p>To this deposition the defendants made two objections., 1. Because it appeared by the deposition that the witness was interested; for upon being asked on his examination, r ° , . whether he had agreed to warrant the title to the plaintiff, his answer was “ that he had made no such agreement, but “ that being asked by Judge Henry, before whom the deed “ was acknowledged, whether he would beforthcomingfor the “ title, he replied, that it zvoidd be right that the deed “ be p'oodY 2. Because that part of the deposition was not * r . *_ gal evidence, in which Lowman said that Cox offered to purchase the land of him, inasmuclras Cox had then no interest of any kind in the land, nor afterwards, except as executor and trustee under the will of Mrs. Ferguson; and of course notice of Lowmaids title, though brought home to Cox, could not affect the parties in interest under the will. But his Honour overruled the objections, and admitted the deposition.</p> <p>A material question upon the merits was the validity of Lowman’s deed; and upon this point Judge Teates charged the jury, that the supplement to the recording act, which provides that every deed thereafter, which shall not be recorded within six months after execution, shall be adjudged void against any subsequent purchaser for a valuable consideration, was designed to embrace the case of a person executing a deed to one man, and afterwards executing another deed of the same premises to another man, without notice of the first, in which case the second deed, on being recorded first, Would be valid against the first deed, if not recorded in six months. But that it was not the object or meaning of the act to embrace the case of a deed not recorded, where a third person afterwards purchased the same land at sheriff’s sale for a valuable consideration and without notice, as the property o a person in no wise connected in title with the grantor in the unrecorded deed; and therefore that the unrecorded deed to Lowman was good against the defendants.</p> <p>The jury fpund for the plaintiff; and a new trial being moved for upon the ground of misdirection, and the admission of Lowman’s deposition, the judge refused it, and the defendants appealed.</p>

<p>ASSUMPSIT. The declaration contained three counts; but the verdict being rendered for the plaintiff, upon lbe second and third only, the first is immaterial,</p> <p>The third count was for money had and received. The second stated, that a certain discourse being had by and be-the plaintiff and defendant, on the 1st of February 1799, of and concerning certain bonds, &c. the plaintiff then an<l there informed the defendant, that he was apprehensive he should lose a sum of money which he should have to pay f°r a certain Valentine Hummel to one Mordecai Lincoln, on account of four bonds, dated the 12th of May 1795, in which the plaintiff was bound to the said Lincoln, as security for the said Hummel, who was also bound as principal in the said bonds, and that he the plaintiff would sue the said Hummel on account of the said bonds; that thereupon the defendant requested the plaintiff not to sue the said Hummel, and then and there promised the plaintiff, in consideration that the, Pontiff would refrain from so suing him, he the defendant would include the amount of the said bonds in a judgment to be entered for himself against the said Hummel, and would save the plaintiff harmless against the said bonds. The plaintiff then averred that he did refrain from suing the said Hummel, and that the defendant did include the amount of the said bonds, in a judgment which Hummel confessed to him. That the plaintiff was nevertheless sued by the said Lincoln on the said bonds, and was compelled to pay the debt due on them, to the amount of 265/. on the 11th of December 1801, of which the defendant had notice; but that the defendant had not indemnified him, &c.</p> <p>The cause was tried at a Circuit Court for Dauphin, in june 1808, before Mr. Justice Brackenridge, who overruled two motions by the defendant, one for a new trial, the other in arrest of judgment; from both which decisions the defendant appealed.</p> <p>The question upon the former motion was of no importance.</p>

<p>THIS was an appeal from the decision of Judge Brackenriclge, at a Circuit Court for York in June 1802.</p> <p>r , . , i he action in that court was a feigned issue to try the vaiidit\ of a writing, dated the 21st of March 1798, and exhibited to the register as the last will and testament of Henry Sealy. '</p> <p>While the issue was depending, the defendants brought to the register another will of Iienry, Sealy, dated the 21st of October 1794, which was proved in the usual manner by the oaths of the subscribing witnesses. Upon a paper annexed to this will, the register certified, that-the parties opposed to the will of 1794, were not present when the probate was taken; but that Hull, one of the defendants, informed him that they consented to the depositions being taken, upon condition that if the will of 1798 should be set aside, then the will of 1794 should stand for the last will of the testator.</p> <p>Upon the trial of the issue the defendant’s counsel offered in evidence the will of 1794 thus proved; and it being rejected by the court, they entered an appeal. The single question was, whether the probate, under the circumstances of the case, was valid, so as to make the will evidence..</p>

<p>IN ERROR.</p> <p>-ill RROR to the Quarter Sessions of Dauphin.</p> <p>The plaintiff in error was indicted for writing and publishing a libel on the characters of Michael Ley and Leonard Rainier, and also upon the memory of John Ramler deceased. The jury, many of whom were Germans, found the following verdict: “ Guilty of writing and publishing a bill of scan- “ dal against Ley and Rambler, but not guilty as to any Ram- “ lev deceased.”</p> <p>Several errors were assigned and argued in this court; but the only one upon which the court thought it necessary to express an opinion, was, that the jury had not found the defendant guilty of the offence laid in the indictment, and that no judgment ought to have been entered upon their verdict.</p>

THIS was an appeal froin the decision of the late Judge Smith at a Circuit Court for York in May 1808. The plaintiff claimed under a warrant to William Gronce for 100 acres in the year 1751, founded upon an improvement.

HT^HIS cause was argued in the Supreme Court, upon case in the nature of a special verdict, which stated in substance, that 7 ^ # Isaac Melchor being seised of estate real and made his last will and testament on the 22d May 1788 the words following: “It is my will that my just debtá “ and funeral expenses be fully paid and satisfied by my ex- “ ecutors hereafter named, as soon after my decease as pos- “ sible.

<p>¶ j 'N an ejectment for lands in Dauphin, the jury found the - following special verdict:</p> <p>“ That Peter Sheetz, the father of the lessor of the plaintiff and of the defendant, being seised in his demesne as of fee, a Qf £[le lands and tenements in the declaration of ejectment . J stated and mentioned, on the 8th day of April 1795 made a j£;s jast wj]j ancl testament, prout the copy thereof hereunto 1J annexed, and on the 10th day of April in the same year, a make a codicil in writing to his last will and testament, ° . “prout the copy thereof hereto annexed, and died leaving u tjie saj¿ Francis? (in the will and codicil mentioned) “ the 7 v , ' “ said Peter the defendant, and the said Elizabeth the lessor a Qf £jle plaintiff, his only children; that the said Francis en-1 J “ tered into and took the possession of the lands and teneu ments in the said declaration mentioned, and being so . 7 ° “ thereof possessed, died -without lawful issue, but after he “ was above the age of twenty-one years, intestate; that the “ said Francis Sheetz was born on the first day of April 1775,' “ and was killed on the 28th of December 1797- That the “ said Elizabeth, the lessor of the plaintiff, is the sister of “ the whole blood of the said Francis, and that the said Peter the defendant is the brother of the half blood of the “ said Francis, being the son of the said Peter the testator, “ by another venter. That the said Elizabeth, demised the “ lauds and tenements in the said declaration mentioned, “ to the said Timothy for the term therein expressed; that “ the said Timothy did enter, and was thereof possessed; “ and that the said Peter did enter and eject him therefrom; “ and if on the whole matter, it shall seem to the court that “ the said Peter is guilty of the trespass and ejectment, they “ then find him guilty, &c.; but if on the whole matter, it “ shall seem to the court that the said Peter is not guilty, “ then they find him not guilty, &c.”</p> <p>By the will referred to, the testator, after directing the payment of his debts, made the following devise. “ I give “ and bequeath unto my son Francis Sheetz, all that my “ plantation, and two tracts or pieces of land,” (the premises in the ejectment) “ the one of them, and whereon I now “ live, is bounded by &c. and containing about three hundred “ and sixty acres, be the same more or less; and the other of said tracts, is situated or bounded by &c. and contain- “ ing about ninety five acres be the same more or less; both “ of the said tracts of land being situate in the township of “ Heidelberg and county of Dauphin, to have and to hold the “ said two tracts or pieces of land, unto my said son Francis “ Sheetz, and to his heirs and assigns for ever, subject to the i‘ payment of two thousand three hundred pounds lawful “ money of Pennsylvania, in gold and silver coin, which said “ sum it is my will, and I do give the same unto my son “ Peter Sheetz, and to his heirs and assigns for ever, and to “ be paid in manner following, to wit: my said son Francis “ Sheetz shall pay at the expiration of one year after my de- “ cease, the sum of one hundredpounds „ and then the sum of “ one hundred pounds yearly, for three years successively, “ and then the next year the stem offive hundred pounds, and 44 the next year the sum of one hundred and fifty pounds, and 44 then so on the sum of one hundred and fifty pounds yearly “ and every year, until the whole sum of twenty three hun- “ dr ed pounds shall be fully paid.”</p> <p>He then gave to his son Francis, 44 with the said planta- “ tion, and to his heirs and assigns,” several horses and cows, a quantity of grain, and some farming utensils; after which came the following devise to his wife. 44 I give and “ bequeath unto my wife Catharine during the term of her 44 natural life, my house and lot she now lives in, in the town 44 of Heidelberg, and also all the money and effects which is 44 mentioned and contained in a certain article of agreement 44 or instrument of writing, made between her and me, bear-44 ing date the 19th day of February 1789, and recorded, &c. 44 and which I have therein promised and agreed to pay and deliver her during all the term of her natural life, she pay- “ ing the taxes and ground rent thereon to become due; and 44 which said money in said agreement mentioned, being 44 twenty four pounds yearly, shall be paid her on the first 44 day of May yearly, during the term of her natural life, by 44 my said son Francis Sheetz; and which my said plantation 44 shall always be subject to.” He also gave his wife during her life, the interest of six hundred pounds of his money, which he directed his executors to invest; and he then made this bequest to his daughter, the lessor of the plaintiff. 441 44 give and bequeath to Elizabeth, now the wife of John 44 Hauer, the sum of one thousand pounds lawful money of 44 Pennsylvania, in gold and silver coin, nevertheless to be 44 deducted out of the said one thousand pounds, what I have 44 already given and advanced my said daughter Elizabeth 44 and son-in-law John Hauer, which said money shall be “ paid my said daughter Elizabeth in manner following, to “ wit, three hundred pounds thereof, (besides what they now “ have) within six months after my decease, and then the 44 sum of one hundred pounds yearly and every year, until 44 the whole sum shall be paid.” The money was to be paid out of the proceeds of an estate which he ordered his executors to sell;44 but in case my said daughter Elizabeth should de44 part this life before the said one thousand pounds be fully 44 paid her, then k is my will that my said executors, shall “ retain the rest in their hands, and put the same to interest “ for the children of my said daughter Elizabeth, until they “ be of lawful age of twenty-one years, and it shall then be “ divided between them, share and share alike.”</p> <p>He also gave to Francis, “ and to his heirs and assigns,” the half part of all his clothing, linen, yarn, beds, and bedsteads-: the other half, together with all the rest and residue of his moveable goods and effects, and money whatsoever and wheresoever, not before given and bequeathed, it was his will that his executors should make a public vendue of the same, and the money arising therefrom he gave and bequeathed to Peter, and to his heirs and assigns for ever. “ After the decease of my said wife Catharine, I give and “ bequeath the sa.id sum of six hundred pounds, which my “ executors shall have so put to interest, unto my said two “ sons Francis and Peter Sheetz, to be equally divided “ between them, share and share alike. Also after the de- “ cease of my said wife Catharine, I give and bequeath unto t$ my said two sons, my said house and lot of ground, and “ wherein my said wifé Catharine now lives, situate in the “ said town of Heidelberg, to hold to them my said two sons, “ their heirs and assigns for ever. But in case my said son “ Francis Sheetz shall die under the lawful age of twenty-one “ years, or zvithout lawful issue, then and in that case I give “ tny said son Francis’s share in my said whole estate, unto “ my said son Peter Sheetz, and to his heirs and assigns for “ ever; and in case my said son Peter Sheetz shall die under “ the lawful age of twenty-one years, or without lawful issue “ as aforesaid, then and in that case, I give and'bequeath. “ my said son Peter’s share in my' said whole estate, unto w my said son Francis Sheetz, and to his heirs and assigns “ for ever. But in either case, the survivor of my said two “ sons Francis and Peter, shall then pay unto my saiddaugh- “ ter Elizabeth or her heirs, the sum offive hundred pounds, u' lawful gold and silver money, but to be taken out of the last * payments of my frst mentioned plantation’’</p> <p>The codicil to the will contained an additional bequest ©f a servant man and boy to Francis, he to give one of his best horses to Peter when he should arrive at twenty-one; and then came the following clause. ■“ And I do hereby “ order, and particularly request, and do not allow my said “ son Francis Sheetz, to sell any part of the land, which 1 u hade in my said will given him, until he arrives at the age “ of thirty years, and then he may do with the same as he “ pleases.”</p> <p>The judgment of the Supreme Court having been rendered for the'defendant, the plaintiff .brought this writ of error, upon which the single question was, whether Francis Sheetz took a fee-simple in the land devised to him, which became absolute upon his arriving at twenty-one.</p>

HIS was an action of covenant upon a policy of insurance, dated the 30th of November 1797, upon all kinds or lawful goods laden or to be laden on board the brig Beniamin Franklin, “ at and from Bordeaux to a port in the Uni- . r . , “ ted States, 3,000 dollars at six per cent.

THIS was an action of covenant upon a policy for 20,000 dollars on goods in the brig Pennsylvania, on a voyage from Philadelphia to Smyrna, and from thence to Canton and home, with liberty after leaving Smurna to touch and trade J ° J . . TTT , Trieste, or one other port m the Adriatic. Warranted American property, proof whereof if required, to be made . : . : m Pennsylvania only.

<p>HjHHIS was an action of trespass for breaking and entering the plaintiff’s house, and committing an assault and battery upon him.</p> <p>Upon the trial at an adjourned court in January last, the jury found a verdict against Work and Link, two of the defendants, 100 dollars damages, and not guilty as to the others.</p>

<p>Refeiees undei cannot award costs of suit in the common pleas, upon a s,um> which by the laws giving jurisdiction to of the Peace> will not carry costs, unless there is an ' they shall have poYe1’ ovf.1'the costs, or the plaintiff had ^efeeí*" suit, that he believed the debt was beyond the supn within a magistrate’s jurisdiction-,</p>

<p>Taking and surgon^'on^bail-" piece for whom quence of which aís^tiuTendered him in a suit ^aiT'isfa good*13 consideration to ^iseTi'y the'defendanto/fo-the pay aproportion of the expense atten<^riS'it-</p>