Volume 2 — Grant's Pennsylvania Cases

<p>Error, to the Court of Common Pleas of Westmoreland county.</p> <p>Case stated, tbe facts of which fully appear in the opinion of the court.</p>

<p>Error to the Court of Common Pleas of Erie county.</p> <p>The' borough of Erie was indebted to John A. Tracy for certain work, about which a controversy had arisen^ and the parties entered into the following amicable submission :—</p> <p>“ John A. Tracy v. The Burgess and Town Council of the borough of Erie. In the Court of Common Pleas of Erie County. Amicable action.</p> <p>“And now to wit, 24th Nov. 1849. It is agreed to submit all matters in variance between the- parties, growing out of the contract for the filling out of the State Street road to public pier, be submitted to Joseph Henderson, Wilson.King, and David Ilimrod, who or a majority shall report an award, after duly considering all matters claimed in the shape of damages or otherwise, by either or both parties. The amount found due, if any, to the said John A. Tracy, to be .paid in the bonds of the borough, according to the terms of the contract.: Either party having the right to appeal to the Court of Common Pleas, by so signifying the wish and intention to do so, and causing this amicable action and the award on the same to be filed in the said court, within twenty days after the award is made and delivered, and filed in the office of the Borough and Town Council aforesaid. Witness the hands and seals of the said Burgess and Town Councils, and the said John A. Tracy.</p> <p>John A. Tracy, l. s.</p> <p>A. W. Brewster, l. s.’</p> <p>James Skinner, ii. si</p> <p>C. M£Sparren, i. s.:</p> <p>P. Arbuc.kle, L. S.’</p> <p>T. G. Colt, 1. Sv</p> <p>John Pinkney, L. S.‘</p> <p>After hearing, the arbitrators awarded to John A. Tracy $2828.21 to be paid in the bonds of the borough, and attached the same to the amicable submission, November 30, 1849.</p> <p>On the first day of December, 1849, the town clerk sent the papers with the following note to the ProthonotWym^lhq ^ Common Pleas, which was filed on the same day, as aix«/ppeáí'»$:'_j from the award of the arbitrators.</p> <p>“. Sir — Please file in the -Court of Common Pleas the above stated amicable action according to the terms of the agreement, and enter it of record to next term. By order of the Burgess and Town Council. Jas. C. Reid, Town Clerk.</p> <p>Dec. 1, 1849.”</p> <p>April 30, 1852, John A. Tracy obtained a rule to show cause why the appeal should not be quashed, which was made absolute July 31, 1852, and defendants took this writ of error, and complain that the court erred in quashing the appeal.</p>

<p>Error to the Court of Common Pleas of Butler county.</p> <p>This was a several action of debt brought by the Commonwealth, against the executor of Hugh McKee, a co-obligor with George Miller and Jacob Brinker, in the official bond of George Miller, former treasurer of the County of Butler, to recover a balance due said Commonwealth. Bond dated 10th January, 1835.</p> <p>The only question is as to the appropriation of payments. George Miller was treasurer in 1834, and also in 1835, and gave bonds with different sureties. There was a defalcation in both years — in 1834, of $463.54 — in 1835, of $623.20. After the 1st of January, 1836, to wit: in 1836 and 1837, he paid to the State, sums amounting in all to $621.40, without any appropriation of the payments, either by the State or the treasurer. The question is, what appropriation the law makes of these payments.</p> <p>On this point the court, Aesraw, J., charged the jury as follows:</p> <p>“The sureties on the bonds of 1834 and 1835, being differ- ■ ent, but equal in equity, and the payments of 1836 and 1837, not being applied to any particular year, we instruct you to ascertain the deficit of State tax for 1834 and 1835, and to make a rateable or proportional appropriation of the payments between these years — that is, the sum of the deficits for 1834 and 1835, will be to the sum of the payments of 1836 and 1837, as the deficit of 1835 is to the answer, which will be the proportion of the payments for that year.”</p> <p>Of Which instruction defendant complained, and now assigns the. same for error.</p>

<p>1. The principal in a bond is not a competent witness for his surety.</p>

<p>Error to the court of Oommpn Pleas of Westmoreland county.</p> <p>The parties in this court stand as follows on the record: — - Benjamin Eulton, John Seidler, James Guthrie, James Sweeney, Levi Barnes, James Layton, William Hughes, jr., and George Marietta, plaintiffs in error, v. Abraham Eulton, Esther Craig, formerly Esther Eulton, Robert Eulton, David Burrell and Catharine his wife, formerly Catharine Fulton, for the use of said Catharine, defendants in error, and plaintiffs below.</p> <p>The questions arise on the following stated case:</p> <p>“ James Fulton, the elder, died in 1825, seized in fee of the land in dispute. ¡</p> <p>“James Fulton made his last will and testament on the 5 th of March, 1825, whiek was duly proved on the 22d of April, 1825.</p> <p>“ That said James Fulton left a widow, Sarah, (long since dead,) and the following children, to wit: Abraham Fulton, Esther Craig, Robert Fulton, James Fulton, who is dead, leaving one child, Catharine, married to David Burrell, one of the plaintiffs, Mary Fulton, Martha Fulton, Cochran Fulton, and Benjamin Fulton, who all survived their father James Fulton, deceased, the testator.</p> <p>“That the tract of land in dispute was devised by said James Fulton to Mary, Martha, Cochran and Benjamin, in the manner mentioned in said will.</p> <p>, “That Mary Fulton died intestate, and without issue, on the 15th June, 182T; and Cochran died on 19th Dec., 1833, intestate, and without issue; and Martha died 29th April, 1834, intestate, and without issue.</p> <p>“The present defendants claim under Benjamin Fulton, who is also one of the defendants.</p> <p>“That after the death of Mary Fulton, an action of ejectment was brought' by the present plaintiffs, or those under whom they claim, for the four-sevenths of one-fourth of the land in dispute, against Cochran, Benjamin and Martha, in which a judgment was recovered for the defendants, on the 27th August, 1831.</p> <p>“That Martha Fulton, in 1832, was found a person of unsound mind, by an inquest; and that she had been so forty years, and was subject to fits; and that Benjamin Fulton, Cochran Fulton and Mary Fulton were persons of weak minds.</p> <p>“If the court shall be of opinion that the plaintiffs are entitled to recover, then judgment to be entered for such share as they are entitled to. That if the plaintiffs are not entitled to recover, then judgment to be entered for the defendants generally.”</p> <p>In the will of James Fulton occurs the following clause, the construction of which raises the question in this case.</p> <p>“The remainder of my landed property I bequeath to my two daughters, Martha and Mary, and my two sons, Cochran and Benjamin, to be equally divided between them, who are charged with the comfortable maintenance of their mother, my loving wife Sarah; and in addition to the above remainder of my landed property, I bequeath to my said four children, Martha, Mary, Cochran, and Benjamin, and my loving wife, the whole of my stock of every description, grain in the ground, and in the barn, hay and farming utensils of every description, and also the balance of the time of an indented apprentice, provided they fulfil the indenture on their part. If any of the above named four children should die, it is my will that the share of such one should be equally divided among the survivors ; and it is my will that all of the above named heirs contribute equally towards paying my just debts, and funeral expenses. And to my grand-daughter, Esther Craig, I bequeath one horse and saddle, one cow, a bed and bedding, which she is to receive at her marriage or her grand-mother’s death. And lastly, I constitute and appoint my well beloved friends, Robert Montgomery, Esquire, and William Hughes, my executors. The expense of procuring a patent for the land, to be at the joint.expense of all the legatees.”</p> <p>Upon which the court, Burriui, P., entered judgment as follows: — “ The Court is of opinion that the words in the will of James Fulton, deceased, ‘If any of the above named four children should die, it is my will that the share of such one should be equally divided among the survivors,’ are referable to the death of the testator; being unable from the will to find any other period. As all these four children survived the testator, their estates were absolute. On the death of Mary, adverse possession seems to have been taken of her estate by the other three; and Benjamin would be protected now by the Statute of Limitations, as to one-third of Mary’s, at least; upon the death of Cochran and Martha, their estates descended to all the brothers and sisters together. Dividing the estate into thirtieth parts, it leaves in Benjamin fourteen undivided thirtieth parts. Judgment is therefore entered for the plaintiffs, upon the case stated, for sixteen undivided thirtieth parts of the land. The plaintiffs having disclaimed as to the portion for which Guthrie took special defence, that is not included in the recovery.”</p>

<p>Error to the Court of Common Pleas of Indiana county.</p>

<p>Certiorari to the Court of Common Pleas of Allegheny county.</p>

. Tbe questions to be determined, arose upon tbe following stated case: “John George died intestate, leaving a widow, now tbe wife of Jonathan Sarver, tbe plaintiff. Letters of administration on bis estate were granted to bis widow, Pbrena, now married to tbe plaintiff, and Jacob B. Ament and George Sherbondy, tbe defendants. Tbe real estate of tbe said intestate, was sold by his administrators for tbe payment of debts.

<p>Error to the Court of Common Pleas of Butler county.</p>

<p>1. A justice of the peace has not jurisdiction to enforce the payment of the purchase-money of land, either in the hands of the vendor or of his assignee.</p>

<p>Error to tbe Court of Common Pleas of Fayette county.</p> <p>This was an action of slander, for words spoken by the defendant, Lucinda Tibbs, concerning Lavinia Brown, one of the plaintiffs. The words charged were, “ you are an old whore, you had better go and sleep with Jack Webster again.” The defendant pleaded “not guilty,” and the following special pleas:</p> <p>1st. And the said defendants for further plea in this behalf, by leave of the court, further saith, that the said plaintiffs ought not to have and maintain their said action in this behalf, because they say, that the charges contained in the said several counts of the plaintiff’s declaration were first published, spoken, and declared by the said Jackson Brown, one of the plaintiffs, and that the said charge ivas communicated by the said Brown and others upon, his authority and information, to the said Lucinda Tibbs, one of the defendants, and that the said Lucinda, relying upon the information of the said Jackson Brown, and believing the same to be true, innocently,_ and without any malice on her part, republished and spoke the same, and of this the said defendants put themselves upon the country. Whereupon they pray judgment whether the said plaintiffs, &c.</p> <p>2d. And for a further plea in this behalf, the said defendants -further say, that the said plaintiffs ought not to have and maintain their said action in this behalf, because they say that the said words and the charge imputed thereby, contained and set forth in the plaintiff’s declaration, were spoken and published, and procured to be spoken and published, by the said Lucinda Tibbs, as in said declaration mentioned, by the fraud and covin of the said Jackson Brown, for the purpose of subjecting the Said Lucinda to an action for damages for the speaking of the said alleged slanderous words, and this they are ready to verify, wherefore they pray judgment,” &c.</p> <p>On the trial of the cause, the words were proved to have been spoken as laid, in the fall of 1848, or spring of 1849. On the part of defendants, it was proved that Jackson Brown, one of the plaintiffs, had originated the charge himself; said that he had caught several persons having intercourse with his wife, and informed Mrs. Tibbs, who is his mother, that he would not have married the damned old whore, if it had not been for her.</p> <p>It was also proved by defendants, that Jackson Brown said he had laid a plan to make Mrs. Tibbs pay for the words she had spoken; that he had laid a plan to get their “ stony batter,” (a small tract of land on which the defendants resided;) and that he had said he had offered his mother five dollars to catch his wife and Jack Webster.</p> <p>The plaintiffs then offered to prove the general good character of Lavinia Brown. Defendants object. Objection overruled, and exception by defendants.</p> <p>The plaintiffs then offered to prove the general character of Jackson Brown; that anything uttered by him was unworthy of belief, and that his character was known to Mrs. Tibbs. Defendants object. Objection overruled, and exception by defendants.</p> <p>On the trial, defendants requested the court to charge the jury—</p> <p>“ 1st. That if Jackson Brown, one of the plaintiffs, communicated to his mother, Lucinda Tihbs, the charge contained in the declaration, that her repetition of it, afterwards, ought to subject the defendants to only nominal damages.</p> <p>“ 2d. That if Jackson Brown himself originated the charge contained in the declaration, and communicated it to Lucinda Tibbs, who afterwards confiding in his said representation, repeated the same, he cannot complain of such repetitionhe cannot found a cause of action on a loss or injury towards which he has contributed by his own act. Having induced others to act on his information and representations, he is estopped from alleging to the contrary, for the purpose of maintaining this action, and the verdict should, therefore, be for defendants.</p> <p>££ 3d. That if the plaintiff, Jackson Brown, communicated the charge contained in the declaration to his mother, for the purpose of entrapping her into a repetition of it, so as to enable him to maintain an action against her to recover damages, he cannot maintain such action. He cannot take advantage of his own wrong and fraud.”</p> <p>In answer to these points, the court say:</p> <p>“ 1st. If the jury believe that Jackson Brown originated the charges complained of in the declaration, and defendant, Mrs. Tibbs, merely repeated them, this ought to mitigate the damages, but the plaintiff has a right, if the evidence is believed, to recover more than mere nominal damages.</p> <p>“ 2d. We merely say, that if defendant did not originate the charges contained in the declaration, it will go in mitigation. How far, depends much, on the credence she gave to them. If she did not believe them, and afterwards repeated them, the reduction for want of capacity to originate, ought to be small.</p> <p>“ 3d. If there had been a conspiracy between Jackson Brown and his wife to entrap the defendants, for the sake of damages, no damages could be recovered; but unless his wife united with 'him, his designs or objects, will not prevent a recovery. The husband cannot be permitted to sacrifice the character of his wife for his own gain.”</p> <p>To this charge defendants except, and assign the same for error.</p>

<p>Error to the District Court of Allegheny county.</p>

Assumpsit by plaintiff in error, on a note, of. which the following is a copy: “ $700. Sixty days after date, I promise to pay to the order of E. Sankey, at the Exchange Bank, Pittsburgh, seven hundred dollars, without defalcation, for value received. July 7, 1845. R. W. M‘Elevy.” Endorsed, “E. Sankey.” Plea, Non-assumpsit, with leave to give the special matters, &c. The note was proved, and read in evidence.

This was an action of assumpsit, in the District Court of Allegheny County, brought to January Term, 1852, by Michael Kane, Jr., surviving partner of the late firm of Roberts & Kane, against John A. Wills and John Coyle, late partners, under the firm of Wills & Coyle. The plaintiff filed with his praecipe, January 3, 1852, an affidavit, under the rule of court, claiming a right to recover from the defendants, the sum of $3100, with interest thereon, from Oct. 1, 1851.

This is a writ of error to a ca. sa., issued on the judgment in the case immediately before reported. Dec. 20, 1852. On affidavit of M. Kane, Jr.,'alleging that the said John A. Wills had property which he fraudulently concealed from his creditors; and also that he had money or evidences of debt, which he unjustly refused to apply to the payment of the said Kane’s judgment, a bench-warrant was issued for his arrest, by Judge Williams.

<p>Error to the Court of Quarter Sessions of Westmoreland county.</p> <p>James Patterson, the prosecutor, made information before Justice Jacob M. Wise, of the county of Westmoreland, on the 15th day of March A. D. 1853, against Alexander Guffy, the plaintiff in error, charging him with having committed a forgery, in altering the date of a summons issued by Daniel Kunkel, Esquire, a justice of the peace in and for the county of Westmoreland, at the suit of Alexander G-uffy v. James Patterson, executor of Lewellen Howell, deceased. Upon that information, a warrant was issued by Justice Wise, on the 16th day of March, 1853, for the arrest of Alexander Gruffy; and James Patterson, on the day the information was made, entered into a recognizance to appear at the next Court of Quarter Sessions thereafter, and prosecute the said Alexander, for the crime of forgery. Alexander Gruffy having learned that a warrant was. in the hands of a constable for his arrest, volun-tarily appeared before Justice Wise, on the 9th day of May, 1853, and entered into a recognizance, with two sureties, conditioned for his appearance at the next Court of Quarter Sessions thereafter, to answer the charge of forgery, made against him by James Patterson, the prosecutor. At the May Sessions, A. D. 1853, an indictment was preferred against the plaintiff in error, for forgery, on which the name of James Patterson was endorsed as prosecutor. That indictment was returned a true bill, by the grand jury. The trial of the case was afterwards continued until the August Sessions, A. D. 1853, Alexander Gruffy being bound in a recognizance to appear at the August Sessions-to answer the charge. On the 23d of August, 1853, the plaintiff in error pleaded not guilty to the indictment. The District Attorney similiter and issue, and on the same day the cause was tried — James Patterson appearing as the principal witness against the defendant, and a verdict of not guilty rendered by the jury, and that the prosecutor, James Patterson, pay the costs. On the trial of the cause the defendant called no witnesses, relying on his innocence, and the entire want of any evidence on the part of the prosecutor, to make out the charge preferred in the indictment. The court instructed the jury to return a verdict of not guilty, and added, that the question of costs was one exclusively for the jury, and that as the offence charged was a misdemeanor, they might impose the costs, either on the prosecutor, the 'county, or the defendant. The jury returned a verdict, acquitting the defendant, and that the prosecutor, James Patterson, pay the costs of prosecution.</p> <p>After the verdict was rendered, a motion was made, to set aside the verdict, as far as costs were concerned. The court set aside the verdict, so far as the costs were concerned, and this is the error here complained of.</p>

<p>1. The rule for the rate of interest is furnished by the law of the place, where the contract is to be performed.</p> <p>2. Where a security is given in pursuance of a decree of a court of justice, it is to be construed according to the intention of the tribunal which directed its execution, and in contemplation of law, is to-be performed at the place where the court exercises its jurisdiction.</p> <p>3. A bond given in this State as collateral, to secure a debt in New York, is controlled by the law which controls the principal indebtedness, so far as relates to the rate of interest.</p>

<p>1. A church, and the lot upon which it is erected, are private property, and subject to levy and sale, in the same manner as other private property.</p>

<p>Error to the Court of Common Pleas of Westmoreland county.</p> <p>This was an action of debt on a sealed note from King to Coulter, for $>100, dated April 4, 1837, payable sixty days after date. Plea, payment. Replication,- non-solvit, and issue.</p> <p>William H. King, plaintiff in error’s testator, at the date of the note, was a merchant, doing business in Greensburgh, where his uncle, Richard. Coulter, also resided. The execution of the note to Mr. Coulter was not denied. Mr. Coulter had an account in the store of Mr. King, and the books exhibited that account running from 1836, till March 12, 1839, with certain credits entered between January 17, 1837, and 23d October, 1837. At the time the account closed, the amount of the book account exceeded the amount of the note. Mr. King always resided in the immediate neighborhood of Judge Coulter, from the time he closed business as a merchant, till Judge Coulter died, and, during all that period, was well able to pay. NotMng was done in the life-time of either of the parties, in relation either to the account or the note. Mr. King died some time after Judge Coulter, when this suit was brought to recover the amount of the note in the name of Coulter’s executor, after fifteen or sixteen years had elapsed from its date.</p> <p>Defendant’s counsel offered the book of original entry, in evidence, to show payment of the note, which was rejected by the court, and an exception sealed.</p> <p>It was then offered again, on the ground, that the jury would have the right to presume, after a lapse of sixteen years, that it was the understanding and agreement of the parties, that the account should be a payment of the note; it was again rejected and an exception sealed.</p> <p>The defendant’s counsel then entered a plea of set-off, to which the plaintiff’s counsel replied the Statute of Limitation. The court admitted the book, and charged the jury, that the Statute of Limitations was a bar to the set-off claimed, which charge was also excepted to.</p> <p>The court, Burrill, P., charged the jury as follows :• — -That the items of the defendant’s account being all oyer six years old, at the bringing of the suit, were barred by the statute, and that plaintiff should recover the amount of his note and interest.</p> <p>Defendant took this writ, and assigns the following errors.</p> <p>1. The court erred in rejecting the offer of the book of original entries, by defendant’s counsel, in their first offer.</p> <p>2. The court erred in refusing to admit the book in evidence, and submitting the question of the presumption of payment to the jury, or allowing the jury to presume an agreement between the parties, that the account was an extinguishment of the note.</p> <p>8. The court erred in charging the jury, that the defendant’s book account, offered as a set-off', was barred by the Statute of Limitations, and that the plaintiif should recover the amount of his note, with interest.</p>

This was an action of trespass against a supervisor, for making a distress for the collection of unpaid road tax, more than thirty days after demand of payment.

<p>1. Any person interested in an account of an administrator, has a right within five years after the final decree of confirmation, to ask for a review of it, if he alleges any particular error in it, and verifies his allegation by oath.</p> <p>2. It is error, as against the surety of an administrator, to include in an administration account, the rents of the intestate’s land, collected by the administrator; and his surety is interested in the error.</p>

<p>Error to the Court of Common Pleas of Butler county.</p>

This is an amicable action of dower, brought by Judith Worcester, who was the widow of David Worcester, for certain lots in New Brighton, and other land in said county.

<p>Error to the Court of Common Pleas of Lawrence county.</p>

<p>1. An authority to borrow money, and grant a mortgage to secure it, in order to pay the debts for which the trust estate is liable, is an authority to grant a mortgage to such creditors themselves. .</p> <p>2. A trustee of real estate, at law, has a right to execute a mortgage of such estate, which mortgage derives its force from his interest, and not from a mere power; but if the mortgage is improperly executed, the trustee will be liable in equity to his cestuis que trust; and their equity may, under certain circumstances, follow the legal estate into the hands of the mortgagee, or the purchaser, under proceedings to foreclose it.</p> <p>3. If the cestuis que trust have conducted unfairly, and have induced their trustee to involve himself personally, for their debt, by consenting to secure it on their trust estate, they have no shadow of equity.</p> <p>4. An act of assembly clothed the cestuis que trust with power to consent to, or withhold their consent from, a mortgage of their estate. They consented, and by such consent, have concluded their own rights; but we do not decide that they have prejudiced the rights of their children.</p>

Ej ectmont for the undivided half of two town lots in the borough of Meadville. Plea, not guilty; and verdict for plaintiff. Both parties claimed title through Edward Grimes, deceased, and hence the title was admitted to have been in him. This saíne Edward Grimes died, leaving heirs, four children, named Andrew M., Catherine, intermarried with Amos Williams, Sally Ann, afterwards intermarried with William IT. Glenn, and Polly, the plaintiff below.

<p>Error to the Court of Common Pleas of Cambria county.</p> <p>This was an ej ectment, instituted by Peter Fritz against Samuel Dillon, to recover the possession of a tract of land, containing 344 acres and 22 perches, surveyed in pursuance of a warrant dated the 24th April, 1794, in the name of John Kunkell. The plaintiff in error showed a legal title to the one undivided fourth part of the Kunkell survey, provided it had not been defeated by the operation of the Statute of Limitations, or by the transfer of it to James Rhey, July 24, 1849, after the institution of the ejectment. Dougherty obtained a conveyance on the 3d September, 1850, of James Rhey’s interest, and on the 5th July, 1852, was substituted as the plaintiff, upon the record, under the provisions of an Act of Assembly, passed on the 26th April, 1850.</p> <p>The defendant’s counsel, conceiving that this Act of Assembly did not embrace the case, and that the substitution under the fact, disclosed in the evidence, was improvidently made, moyed the court to strike it off. But this the court, Taylor, P., refused to do. The defendant’s counsel then asked the instruction from the court to the jury, that as the original plaintiff, Peter Fritz, had divested himself of the title after the institution of the suit, to wit, on the 24th July, 1849, his right to maintain the action, for anything but the costs, was gone, and, under the facts disclosed by the evidence, could not be restored by the subsequent Act of Assembly, passed on the 26th April, 1850; that therefore there could be no recovery of the land in this ejectment. The court refused this instruction, and charged the jury that the plaintiff was entitled to recover the one undivided fourth of the Kunkell tract. Whereupon a verdict was rendered accordingly. The charge of the court is assigned for error.</p>

<p>1. Where an executor or administrator has money in his hands belonging to a distributee, whose residence is known, it is his duty to give notice of his readiness to pay the money, and hold it subject to the owner’s demand.</p> <p>2. If the residence of a distributee is unknown, and cannot be ascertained upon reasonable inquiry, the fund may be retained in the hands of the executor for any period not exceeding one year, when it should be invested.</p>

<p>1. A petition in the Orphans’ Court, under the Act of 24th February, 1834, is the proceeding expressly provided for the purpose of enforcing the performance of contracts made by a decedent for the sale of real estate, where such person died seised or possessed thereof, without having made any sufficient provision for the performance of such contract.</p> <p>2. Where a remedy is provided by statute, that remedy must be pursued, and the proceedings at common law are superseded.</p> <p>3. A vendee, under articles of agreement, is not entitled to specific performance where the wife refuses to convey.</p>

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>Ejectment for a tract of 400 acres of land, in North Union township. Armstrong Hadden against John Clark, Joseph Clark, Thomas M‘Lean, Margaret Peer, and Alfred Patterson. Tried January, 1853, and verdict and judgment for defendants below.</p> <p>On the trial, the title was admitted to have been in Col. Alex. M‘Lean. The plaintiff then showed judgment in the Common Pleas of Eayette county, in favor of Jane Allen v. Alexander M'Lean, No. 136, October Term, 1822. Entered July 17,1822. Stay one year. By writing filed, dated March 7,1826, defendant agrees that judgment is in full force, and that fi. fa. may issue at any time when ordered.</p> <p>Sei.fa. No. 21, June Term, 1843; issued March 9. M. Allen, administrator of Jane Allen, for use of A. Sadden, v. Joseph M‘Lean, administrator of Alex. MiLean, deceased.] March • 9, 1843, W. E. Austin appears for administrator and heirs, and waives service of writ, and confesses judgment for $400, and waives inquisition and appraisement, and agrees that vend. exp. may issue to sell, to next term.</p> <p>Fi. fa. No. 43, June Term, 1843, levied on tract of land in dispute. Vend, exp., No. 44, June Term, 1843.</p> <p>Sold June 5th, 1843, to Armstrong Hadden for $300. Sheriff’s deed to plaintiff, dated and acknowledged June 26,1843. Plaintiff then rested.</p> <p>The defendants then showed a judgment in the Common Pleas of Eayette county, No. 80, June Term, 1823, on sci. fa.; Lindsay, for use of Edmundson, v. Alexander McLean, $257. Fi.fa. to October Term, 1823, No. 162. Levied on land in dispute. Inquisition, and condemned.</p> <p>''Vend, exp., No. 44, March Term, 1824. Sold 340 acre tract to-Charles Brown for $450, subject to mortgage of E. Douglass of $1000. Deed to Charles Brown, dated March 4, 1824, acknowledged March 5, 1824. Deed, Charles Brown and wife to A. Patterson, dated May 2,1848; consideration named, $5800, General warranty.</p> <p>Considerable parol testimony was given on tbe trials but tbe whole question arose upon the following points, put by defendants, and the answers thereto:</p> <p>1. That an attorney has no power to waive inquisition, and there being no waiver by defendant in this case, sale without inquisition is void.</p> <p>Answered in the affirmative by the court.</p> <p>2. That the prothonotary has no power to issue a vend. exp. without the sanction of the court; and the vend. exp. issuing in this case to the same term, and on the same day with thej^. fa., must have been done without the sanction of the court, and is therefore void.</p> <p>Answered in the affirmative by the court.</p> <p>The answers of the court were the errors complained of.</p>

■Error to the Court of Common Pleas of Clarion county. This'was an action of ejectment, brought by the defendant in error, against Samuel Wilson and Samuel Beigbley, for 230 acres of land. Both parties claimed under tbe trustees of William Bingham.

<p>Error, to the Court of Common Pleas of Indiana county.</p> <p>This was an action of ejectment brought by Piper, the plaintiff in error, against Daniel Sloneker -and Henry Billington. The history of the case was as follows:—</p> <p>A warrant was granted to Thomas Billington for 800 acres, dated 16th April, 1800, No. 5828. A survey, including the land in dispute, was made, dated 10th April, 1801, for 867-f- acres; accepted 30th October, 1811; patented to Henry Billington, • trustee for the heirs of Thomas Billington, deceased, 29th September, 1834. According to the testimony of William P. Brady, there was an understanding between him and Thomas Billington, by parol, that Billington was to take out the warrant, and he, Brady, was to lay it and sell it, and dispose of the land as he pleased, and Billington to make the deeds when called for. Brady, by article of agreement, in his own name, without noticing Billington, sold the land in dispute to Isaac McHenry, on the 22d November, 1801, at three dollars per acre, to be paid in six years, clear of interest. Brady, by same agreement, covenanted to make McHenry a deed for the land sold to him by said article, being 254J acres, clear of all incumbrances, at any time said McHenry would give bond and mortgage for the purchase-money. Thomas Billington died in 1804, and his children were under age. No title was ever offered to Isaac McHenry. Brady testified that no part of the purchase-money was paid. William McHenry, son and executor of Isaac McHenry, testified that $30 of the purchase-money had been paid by his father, in pursuance of this contract with. Brady, in the year 1802, who erected buildings and cleared thirty acres of land, and lived there until his death, in 1812 or 1813. William McHenry, son and executor of Isaac McHenry, after his father’s death, took possession of the land which had been surveyed off by Brady for said Isaac, and kept the possession by himself and his tenants, as he testified, about nine years. In another part of his testimony he says, he and his tenants kept possession of the land until it was sold by the sheriff to the present plaintiff, John Piper, which sale was perfected by sheriff’s deed, dated 28th March, 1833. A judgment was entered in the Common Pleas of Indiana county, against William McHenry, executor of Isaac McHenry, deceased; a levy made on this land on fi. fa. to December Term, 1832; land sold on vend. exp. to March Term, 1833, to the present plaintiff, John Piper, for §210; and deed made to him by the sheriff, dated 28th March, 1833. After the death of Isaac McHenry, his executor, William McHenry, brought suit against William P. Brady, in the spring of 1814, to recover the §30 paid by Isaac McHenry, in his lifetime, to Brady, on the contract for this land. On the 15th December, 1815, judgment was entered, by confession, in favor of Isaac McHenry’s executor, for ¿613 Is. 7with interest from the 22d December, 1803; to be released, provided a title be made on the contract with Isaac McHenry within five months, and costs paid, and on the making of that title, credit to be given on that contract pro tanto, or so much as shall be due, &c. The title not being made, William McHenry, executor of Isaac McHenry, deceased, issued executions on his judgment, and collected the sum off Brady, amounting, as William McHenry testified, to over §60 dollars. An ejectment was brought by Henry Billington, trustee, &c., to June Term, 1840, to recover, this land from John Piper and his tenant. A verdict was after-wards had in favor of Billington, to be released on payment of the sum due on the article and costs. The plaintiff contended that the suit brought by the executor of Isaac McHenry, deceased, in 1814, against Brady, to recover back the money paid by McHenry in his lifetime, followed by the collection of the same, was a disaffirmance of the contract, and a denial of the title of Brady, and the possession of McHenry afterwards was hostile to Brady’s title, and the Statute of Limitations would run from that time, and confer a good title on McHenry.</p> <p>The court, Burnside, J., instructed the jury that the plaintiff had no case, and that their verdict ought to be for the defendants, and this is assigned for error.</p>

<p>Er.ror to the Court of Common Pleas of Butler county.</p> <p>The defendants ih error were plaintiffs below, and brought this ejectment to recover the property willed to them by William Collins, their father, dated 1st December, 1842, and codicil 13th June, 1845, and probated 29th December, 1849. The defendant below, James Collins, took special defence for 71 acres 145 perches, according to survey made by John Smith, 31st January, 1850, a part of which tract, 21 acres and 76 perches, are within the lines of the land devised to defendants in error, by the will of their father, and upon which plaintiffs in error have erected a house and barn, and cleared the most of said land. Plaintiff in error and defendant below, claims the 71 acres and 145 perches, by virtue of a parol gift, made by his father to him, in the year 1832 ; the evidence of which is as follows:</p> <p>1st. A survey made by the father in 1832, and the lines w^ll marked upon which the survey of John Smith was located, and the father’s declaration lo William B. Reed and James Jamison, that he had given it to James. 2d. The assessment of, the land to James; to wit, 73 acres, the supposed contents of the survey made by the father, and this assessment commencing in 1832. 3d. The possession taken by James after the gift, and a house and barn erected, and 30 or 40 acres of land cleared thereon, and a continued residence within 'the lines, for near twenty years, before suit was brought.</p> <p>There was evidence that the payment of the taxes was required by the old man, and that he exercised some acts of control over the 73 acres, after the alleged gift.</p> <p>The court, Agnew, J., charged the jury as follows:—</p> <p>“ The defendant has taken special defence for 71 acres and 145 perches of the tract described in the ejectment, and filed a draft and survey of this parcel. He claims this, part by a parol gift from his father, and possession and improvement made in pursuance of it.</p> <p>“ The questions for the jury are, whether a gift was made by old William Collins, to James, his son, of this parcel, and whether possession, in pursuance of the gift, was taken by James.</p> <p>“ Though these are questions of fact for the jury, yet, what constitutes a valid gift, and what a sufficient possession to give it effect, are questions of law, and the jury must, therefore, decide the case, not upon their own notions of the kind of gift or possession, but upon the instructions of the court as to the legal character of each.</p> <p>“ To constitute a good gift, it must be absolute. There must be a present intention to give, and an actual parting with the right of ownership. It is not sufficient that the object is, that the son should occupy and use the land for his own benefit, take the profits to himself, and make improvements to suit himself. There must be more than this; there must be an intent to give the title also, and an intent not merely ko give it at a future time, or by a future act, but a present intention to give it now. If, then, the act of the father amounts to no more than a division of the land among his sons, a laying of it off to them, to enable them to make a living, and provide for themselves and their families, but at the same time intending to hold the title in his own hands, it is not a legal gift.</p> <p>“ The question for the jury, then, is this : Hid William Collins give to James, the ownership or title of this land, as well as the right to possess, use, improve, and enjoy it ?</p> <p>“ On this point, the evidence must be clear and satisfactory, leaving the jury in no doubt, but fully convinced. The statute of frauds and perjuries will not suffer loose and casual expressions, declarations made in loose conversations with neighbors, ■casually occurring, — even the seeming to indicate something like a gift, — to take away from a father his title to his land, and that salutary control a parent should always have over his children.</p> <p>“ The next point, to constitute a good gift, is the certainty of the land or thing given. It is unnecessary to dwell upon this, as the evidence establishes the fact, that the lines are found marked on the ground. There seems to be no doubt that these lines were marked by the old man himself; without a surveyor, it is true, but well marked on the ground. ..</p> <p>“ But the jury will not forget, that the laying off of the land, and marking the lines, are not in themselves a gift to the son. A father may make a survey, and divide his lands among his sons, and put them into possession, and yet not give them the land. He may intend to set up his children, assist them to live and to support their families, make them comfortable and happy around him, and finally to give each the portion allotted to him, and yet hold the title in himself.</p> <p>“ But if a gift be clearly established, and the certainty of the property manifested, yet' these alone will not make a valid gift. There must be more. The possession must be taken by the son in pursuance of the gift. That is, the possession must follow the gift by reason of it, be according to it, and not contrary to it. It must be because of it, and not because of some other arrangement. Therefore, the character of the possession must be consistent with the ownership of the land ; such as belongs to title in the son, and not such as is in subjection to title in the father. If the son be in possession as a cropper only, or paying rent in grain, or money, or services, or on condition of paying taxes, or in any manner whatever, showing that the possession only, and not the title, is held of the father, it is not such a possession as will give effect to a gift.</p> <p>-“ If, therefore, the testimony of the witnesses on the part of the plaintiff be believed, that the land was only laid off to James to work it, that he paid the taxes as rent for it, that the old man, when he put. him on, and often afterwards, told him, as well as his other sons, he would not give the land to him till his death, —that he cut fire-wood on it when and where he pleased, and always controlled it; that James, when the old man got displeased with him, said he would leave the land — the possession of James is not such as will make a good gift, and the plaintiffs would be entitled to recover. Indeed, on part of the defendant, the testimony of some of his own witnesses, goes strongly to corroborate that of the plaintiffs’ witnesses, that the act of the old man was nothing more than a laying off of the land, and showing James where to work and improve. But this is for the jury.</p> <p>“We are asked by the plaintiffs to say, that there is nothing in all the evidence in this case, which could warrant a jury in finding a gift from William Collins to his son James. Although, if sitting as jurors, we would be of this opinion, we cannot take the case from the jury, whose province it is to judge of the credibility of the witnesses and the facts proved by them, and to draw such reasonable presumptions as the facts in proof will warrant. It would be usurping the powers of the jury to do this. But while we leave it to the jury to decide the facts of this ease, it is our duty to say, at the same time, that the testimony is not such as would, in our opinion, (if .sitting as jurors,) convince us, that a gift was made, or that it amounted to anything more than the old man’s placing his sons upon different portions of his land to work it, and maintain themselves; and his establishing lines, or boundaries, for present convenience, intending to hold the title in his own hands, as a rod of correction, or control, to preserve the property, maintain his own authority, and promote the welfare of his family.</p> <p>“ The admissions or declarations of a party, are the weakest. and most fallible of all evidence; liable to be misunderstood, misremembered, misrepresented, mis-stated, and perverted. In a case of this kind, depending, not on any direct evidence of a gift, (that is not proved by any one present at the gift,) but depending wholly on admissions and declarations to strangers, or made in casual conversations, a jury should be well satisfied that the conduct of William Collins, during .the same time, was consistent with these declarations. Conduct at the same time on his part, if consistent .with a gift, goes strongly to show he did not mean by such declarations, that a gift had been actually made. His frequent exercise of authority, warning James off, taking firewood from the land, compelling James to pay the taxes of more than the seventy-one acres, and James’ acquiescence in these things would tend to show, that no such meaning as a gift, was intended by him, when speaking of James’ part of the land, or of what he had laid off, or given to him.</p> <p>“ On the other hand, if he had clearly and cért-ainly parted with his title, and given the land to James, as his own — possession taken, and improvements made by James on the faith of the gift, — he could not afterwards by any act of his own, — any attempt to control the property, — divest the title he had given. When a valid gift is once made, it is beyond the control of the donor, who cannot recall it, or defeat it.</p> <p>“But in the language of Chief Justice Black, (2 Jones, 175,) “When a son goes into possession of his father’s land, and makes improvements, a jury is not to infer from that, in the absence of other evidence, that the father gave him the land. Neither are loose declarations of the father to his neighbors, in casual conversations, calling it his son’s property, without any explanations how it came to be his, sufficient evidence of a gift.”</p> <p>“ Improvements of themselves give the son no title. It is only when they are clearly referrible to a gift, that they have any efficacy.</p> <p>“ The facts are for the jury we again repeat, and they will apply to them the principles we have laid down.”</p> <p>The charge of the court was assigned for error.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was a feigned issue, directed by the District Court, to test the validity of a judgment entered on a warrant of attorney against Henry Coulter and Samuel F. Dales. The condition of the bond upon which the judgment was entered was as follows:</p> <p>“ That if the above bounden Henry Coulter and Samuel F. Dale, partners under the firm of H. Coulter & Co., their heirs, executors, administrators and assigns, do well and truly pay or cause to be paid unto the said Carson & McKnight, their certain attorney, heirs, executors, administrators or assigns, the sum or sums of money for which they, the said Carson & McKnight, may beeome or are now liable for, or on account of the said PI. Coulter & Co., by reason of accommodation, acceptances, endorsements or otherwise, including costs, fees and charges, and to which they may be subjected on said account, and it being expressly understood that said penal sum above mentioned shall cover and embrace a judgment-note at five months date, given by said Coulter & Co., to Gill, Gillets & Noyes, of New York.”</p> <p>A writ offi. fa. was issued upon the judgment to November Term, 1851, upon which was the following endorsement:</p> <p>“ The sheriff will collect—</p> <p>Endorsement for T. J. Carson & Co., Baltimore, due Oct. 25,</p> <p>1851, $6,446.38 Endorsement to Arnold Plumer, due Dec., 1851, 4,000.00 Endorsement to PI. Carson & Co., due Feb. 20,</p> <p>1852, 5,609.28 Promissory note advanced and cash loaned, . 3,297.41”</p> <p>On application made by a number of judgment-creditors, the court directed a feigned issue to be formed, on a wager that the judgment was good and valid for the whole amount, or some part thereof; and that, at the time of issuing execution, one or more of the liabilities specified by the plaintiffs, was due and payable.</p> <p>On the trial of the issue, the plaintiffs’ counsel offered the judgment, the bond of the defendants, and the execution, with the endorsement thereon in evidence, to establish the validity of their claim. The court, Forward, P. J., decided, that they were inadmissible for any other purpose than to show the amount •of the claim; and that they would not establish a prima facie case for the plaintiffs. This decision was excepted to, and assigned for error. Another assignment of error was to the rejection of the bill-book of H. Coulter & Co., which was offered in evidence for the purpose of showing the existence of a lost draft for $8000, drawn by PI. Coulter & Co. on Thomas Carson & Co. There was evidence that the firm of IP. Coulter & Co. had dissolved partnership before the claims of Harvey Carson & Co., and Thomas J. Carson & Co., originated. The court left it to the jury to decide whether the fact of dissolution was known to Carson & McKnight, and instructed them that if it were, and if the elaims originated subsequently to the dissolution, these amounts should be disallowed. It was shown, that the liability of Plumer originated in 1847, prior to the dissolution of the firm of H. Coulter & Co. The court, Forward, J., "further charged the jury as follows:</p> <p>“Plaintiffs’ counsel insist that, inasmuch as Dale, as well as Coulter, is passive, and does not complain or object to the judgment or execution, the debt itself being just, although contracted by Coulter alone, for his separate benefit, the creditors, who in this case are disputing the validity of the judgment and execution, cannot rightfully interfere. -I instruct you, however, that upon the state of facts here assumed, they are entitled to relief, and that you are not at liberty to recognize any alleged liability of plaintiffs, unless it was incurred bond fide on account of Coulter & Dale.</p> <p>“ Liabilities to a considerable amount are stated in the endorsement on the execution, as to which no proof whatever has been adduced. This circumstance is marked by the counsel of the creditors, as evidence of collusion. It is a fact of which you will, of course, take cognizance, in your scrutiny as to the fairness of the judgment and execution; but, although allowed all the weight due to it, the fact itself of bollusion may lack the required proof.</p> <p>“ The question will strike you, may not the course of the plaintiffs be accounted for, without the supposition of their confederacy with Coulter for the object of defrauding his creditors? They were losers to a heavy amount, and would be anxious to secure themselves by any accessible means; or might, under the mere impulse of interest, without collusion with others, be beyond the strict limits furnished by the law as to their liabilities. On this question of collusion you will not, I presume, be satisfied, without persuasive evidence.</p> <p>“ If you are not convinced that the entry of this judgment, and the issuing of the execution, were the result of collusion between plaintiffs and Coulter, you will ascertain their liabilities with the condition of the bond, and find accordingly.”</p> <p>The jury found a verdict for the amount of the liability to Mr. Plumer. The plaintiffs sued out a writ of error, and assigned the matters above specified, to sustain it.</p>

<p>1. Officers of a corporation cannot purchase any claim against, or interest in the company, except in trust for the stockholders, after a resolution has been adopted by themselves, as managers, directing one of their number to purchase for the benefit of the company.</p> <p>2. A change of time and place of sale, from that published, where a resolution was passed, directing a manager to purchase stock for the benefit of the corporators, is no revocation of the authority.</p> <p>3. In an action on the case for conspiracy, proof of a division of the profits of the fraudulent transaction, is sufficient evidence of combination in the first instance, to render admissible the declarations of one conspirator against the rest.</p>

<p>1. The omission of the Court of Quarter Sessions to fix the width of a road, at the time of confirming the report in its favor, is no reason for rendering the previous proceedings invalid; but the error is corrected by reversing the order, and directing the Court, if they will approve of the report, to fix the breadth of the road'; and at the next court thereafter, if no sufficient reason be shown, it may be confirmed.</p>

<p>1. In a contest between a judgment and a conveyance, fractions of a day are admitted; and the rule is, first in order first in right.</p> <p>2. A judgment is a security which incumbers the property, in exclusion of everything subsequent to it. A conveyance excludes everything to which it is antecedent.</p> <p>3. ' As between creditors, a mortgage is to be considered only as an incumbrance ; and until recorded, not even that, unless given for purchase-money.</p> <p>4. A mortgage, although in form a conveyance, is in substance but a security for the payment of money, and conveys upon the mortgagee only a lien upon the land, which may be defeated by payment of the money, at any time before sale.</p> <p>5. In a contest between g judgment and a mortgage, evidence of the time of day on which the judgment was entered, should be rejected.</p> <p>6. A judgment and mortgage entered on the same day, are entitled to equality of distribution.</p> <p>7. In the absence of proof of actual recognition, by those who are to be benefited by a judgment, the law presumes their assent, on account of the benefit to be derived from it.</p> <p>8. When a judgment is confessed, and notice is given to those for whose benefit it was entered, they may elect to take under it, or look to other means to enforce their demands.</p> <p>9. It is only in a clear case, and where it is necessary to prev'ent manifest injustice, that the effect of a record should be changed or varied by parol.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county.</p>

<p>1. The interest or proceeds of a fund in the hands of trustees is liable to attachment.</p> <p>2. Wherever a party has a right of action, his creditors may attach the debt, unless it be for wages.</p>

- Replevin for 400 tons -teas, pig metal, which plaintiffs below allege that they purchased from D. B. Long & Co. (Long, Church & Carothers,) in payment of a debt of Jesse Carothers, and that they are entitled to the iron now in dispute, under and by virtue of that contract.

This was an action of assumpsit, brought by defendant in error, before a justice of the peace. After hearing, judgment for the plaintiff below for $10,00 and costs. There had been mutual dealings between the parties for many years ; each had accounts against the other; some on both sides were legal book accounts, and some were not. It appeared that on the trial before the justice, each party exhibited claims against the other.

<p>1. In a distribution by auditors, of a fund assigned for the benefit of creditors, a judgment recovered against the assignor in a suit commenced after the assignment, upon a claim which, the record shows, existed before, is primá facie entitled to a dividend.</p>

<p>Error to the .Court of Common Pleas of Greene county.</p> <p>The history of this case is the history of a small steamboat, known by the various names, “Leo,” “Vixen,” and “Bee.” In 1848, it was sold by the sheriff of Monongalia county, Virginia, as the property of the Monongahela Iron Company, and bought by James V. Evans, for the trustee of Mrs. Ellicott, for $400; which was paid by the trustee, and the boat delivered to Jacob Baker, the agent of Mrs. Ellicott.</p> <p>In the fall of 1848, and spring of 1849, the trustee had the boat overhauled, at an expense of $500. Baker ran her that season, and in September of the same year, on account of low water, laid her up in the mouth of Dunkard creek, in Greene county, Pa., and employed Bowers Davis, who lived close by — on the bank of the creek, and kept a small fishery — to take care of it. The boat remained thus laid up till the fall of 1850. On the 2d of December, Bowers Davis issued a foreign attachment against Jacob Baker, to No 28, February Term, 1851, in which he directed the sheriff to attach the boat in the hands of him, the plaintiff. On the 12th of February, 1851, Davis filed his bill against Jacob Baker, in which he claimed $500 for taking care of the boat, and on the next day filed the affidavit of his father-in-law, Robert Maple, that the claim of the plaintiff was true and correct, upon which the court decreed the sale of the boat. On the 4th of March, 1851, the court made an order for the sale of the boat, and on the 24th, the sheriff sold it to Bowers Davis, the plaintiff in that and this suit, for $83. Immediately after the purchase, Davis tore the boat to pieces, and sold the engine to his brother for $400, and the hull to other persons, for $50.</p> <p>On the 20th of February, 1852, John Glenn, trustee of Mrs. Ellicott, brought an action of trover and conversion against Bowers Davis, to No. 72, March Term, 1852, for the destruction and conversion of the boat. On the 30th of March, 1855, the cause was tried, and a verdict rendered for the plaintiff for $250, and on the 11th of August, 1855, judgment was entered thereon.</p> <p>On the 31st of March 1855, Bowers Davis issued this foreign attachment against William Glenn, eldest son and executor of John Glenn, deceased, who was trustee of Mrs. Harvey M. Ellicott, to No. 19, June Term, 1855, -in which he directs the sheriff to attach the defendant by the judgment, No. 72, March Term, 1852, aforesaid, due from himself to said trustee.</p> <p>On the trial of this cause, the plaintiff read in evidence the testimony of Jacob Baker, and James Y. Evans, to prove the agency of Baker. He also proved by his father-in-law, Robert Maple, and his son, Robert Davis, and perhaps others, that Baker was to pay him one dollar per day for taking care of the boat. Also that about $20 expenses had been incurred. He also proved what it was worth to take care of the boat. He also gave in evidence, an order from Jacob Baker to Hubbell for the boat, dated 18th of November, 1850. It, however, remained in his possession till broken up and sold by him.</p> <p>The defendant on his part, proved by Jacob Baker and others, that at the time the boat was left in charge of Davis, Baker told him that he was but an agent, and that the boat belonged to Mrs. Ellicott. He also gave in evidence the records of the attachment, (Davis v. Baker, No. 28, February Term, 1851,) the declaration of which was in assumpsit, and the bill filed in same case for taking care of said boat; together with the declaration, the affidavit of Maple, the order to the sheriff to sell the boat, his return thereto, and proof that the same was sold to Bowers Davis for $83; also that immediately after the purchase, that Bowers Davis tore up the boat, and sold the engine for $400, and the hull for $50. The defendant also proved by several witnesses, that the boat, before it was broken up, was worth $1200, and that the engine itself was worth $800.</p> <p>The plaintiff then rebutted, and proved that Baker had said that the boat belonged to him. He also gave in evidence the record of the attachment aforesaid, (Gf-lenn, Trustee, e., v. Davis, No. 72, March Term, 1852,) in which there was a verdict for the plaintiff for $250. On the 7th of October, 1857, this case was tried, and a verdict rendered for the plaintiff for $371.75.</p> <p>The points upon which the questions in the case arose, are fully stated in the opinion of the court.</p>

Appeal of George Mechling, administrator of Jacob Painter, deceased, from the decree of the Orphans’ Court of Westmoreland county, distributing the balance of said estate in his hands. The facts fully appear in the opinion of the court.

This case arose under the Act of Assembly of 13th June, 1836, entitled, “An Act relating to the support and employment of the Poor.” On the 16th September, 1857, Robert Potter, one of the “ Directors of the Poor, and of the House of Employment of the county of Beaver,” made information, before two justices of the peace of said county, that William R. Sterling, the plaintiff in error, had separated himself from his wife, Matilda Sterling, and deserted her and his small child,…

This action was trespass for assault and battery and false imprisonment of plaintiff. The defendants, Sproul and Reynolds, having by force taken the plaintiff from his home, on his farm, in Erie county, to Allegheny City, where, being joined by the other defendant, Frost, he was forcibly taken by them to the jail in the city of Pittsburgh, and there confined for a period of over twenty days.

<p>1. The privilege of a debtor, under the Exemption Law of 1849, is a personal privilege, which may be waived expressly or by implication; and a debtor waives it when he fails to request an appraisement in due season, and under the execution upon which the levy is made.</p> <p>2. The privilege given to a debtor by the Act of April 9, 1849, is not an exemption from having his property sold, but a righ.t to obtain an exemption in a designated manner; and he who would secure it, must comply with the statutory conditions.</p> <p>3. If a defendant would avail himself of the provisions of the exemption law of April 9, 1849, he must make the demand for the appraisement on each particular execution.</p>

<p>Error to the Court of Common Pleas of Orawford county.</p> <p>The defendant’s family resided in Crawford county, Pennsylvania, while he was temporarily in California. While there, he sent to his wife, Clarissa Saunders, two several drafts, or hills of exchange, for $100 each, drawn by Adams & Co., of San Francisco, upon Adams & Co., of New York, and payable to the order of his wife, “ at sight of this second of exchange, (first and third unpaid,”) and dated the 11th of February, 1855, and numbered, respectively, 12,748 and 12,749. The first series of drafts, of same tenor and date, and for the same money, had been received by the wife previously, and returned to defendant, because, as she informed him, she had learned they were of no value, and could not be disposed of, she having offered to do so, and being told they were worthless, or nearly so. The defendant had knowledge of the failure of the drawers, apd so informed his wife by letter, enclosing the drafts, or while she held them. The defendant instructed his wife to dispose of the drafts, and apply the proceeds to his use, except $25, which was to be given to Mrs. Day, whose husband was also in California, and had that amount of interest therein. These drafts were received by defendant’s wife, in August, 1855, and on the 30th she endorsed them to plaintiffs, and received from them therefor, $200 in money, and appropriated it as directed by the defendant. The plaintiffs, at the time they gave the money, and received the drafts, were not informed of their worthless character, and that they would not be paid, nor that the drawers had failed, but advanced the money in good faith, and in ignorance of these facts. The plaintiffs resided about twenty-ñve miles from defendant. On the 12th of September, 1855, the plaintiffs endorsed the drafts, and forwarded them for collection to Yelverton & Eel-lows, of New York, who presented them for payment on the 14th. Payment being refused, the plaintiffs were then informed of it, and also, that for several months previous, drafts drawn by the California house on the New York house, were not honored. In the fore part of October following, the defendant returned home, and the plaintiffs gave him notice of the non-payment of the drafts, but he refused to refund them their money, saying he would not, unless compelled thereto.</p> <p>The bill was not protested for non-payment, nor due notice thereof given to defendant.</p> <p>On the trial, defendant requested the court, inter alia, to charge the jury:</p> <p>“ 3. In order to charge the defendant as endorser, as a party to the bills, it' is necessary that the bills should have been regularly presented for payment, and duly protested for non-payment, by a notary public, or other proper authority.”</p> <p>The plaintiff, inter alia, requested the court to charge the jury.</p> <p>“ 2. If defendant and his wife, at the time the bill was passed to plaintiffs, and the money by them advanced on it, knew that the drawers and drawees had already failed and stopped payment on these drafts, and this fact was unknown to plaintiffs, and not communicated to them at the time the money was paid on it by them, the defendant is so far guilty of fraud in the transaction, as to preclude him from taking advantage of any want of strict observance of the rules of commercial law, by plaintiffs, as endorsees, and they would be entitled to recover upon the'common counts in the nasrr.”</p> <p>The court did not answer plaintiff’s second point, and this raises the question decided in the case.</p>

<p>Error, to the Common Pleas of Crawford county.</p> <p>In June, 1854, Bolard contracted to furnish lumber to Doughty at 87 J cents per hundred. He furnished the lumber and received part of his pay from Doughty, leaving a balance due him on the contract in March, 1856, of $60.28, for the recovery of which sum he instituted suit before a justice of the peace. Subsequent to the making of the contract, Bolard leased his mills to one Gr. W. Watson in security for bail; and during the occupancy of the mills by Watson, under the lease, the lumber was sawed by Watson, and furnished the defendant, under the contract with the plaintiff.</p> <p>Watson was released from his liabilities as bail for Bolard, and re-assigned his lease to Bolard, and was paid by Bolard for all the sawing he had done, by the thousand.</p> <p>On the trial of the cause, Gr. W. Watson was called as a witness for plaintiff, to prove the delivery and quantity of the lumber, to whose testimony the defendant objected, on the ground of interest; the witness, being examined on his voire dire, said, “plaintiff had rented me the mill, and he assigned me the logs from which the lumber was made, in security for bail; afterwards I re-assigned to Bolard, but in the mean time I sawed the lumber for defendant. The lumber was delivered before I assigned to plaintiff. If plaintiff paid the debts I was bail for, he then was to pay me for sawing by the thousand. Plaintiff paid me, from time to time, for sawing.”</p> <p>The witness was rejected, and this is the error here assigned.</p>

Sept. 6, 1856. Petition of Charles L. Groehring was presented, showing that he labors under great inconvenience for want of a private road, to lead from the public road or street, called Chestnut street, to the dwelling-house of petitioner, in said county, and praying the court to appoint viewers to lay out the same, according to law. Sept. 6,1856. The court, on motion of John M. Kirkpatrick, appoint R. E. M£Growen, William Coleman, and Gr. E. Warner, said viewers.

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>A fi. fa. issued No. 58, of June Term, 1853, on which the sheriff levied on a tract of land, containing 100 acres, situate in East Deer township; and an inquisition being held on the 21st day of July, 1853, the same was extended at $50 per annum. No notice was given to the defendant, of the plaintiff’s election that he should retain the premises at the annual sum at which the same was extended; nor did the defendant ever agree so to do. Afterwards, on the 8th day of May, A. D. 1856, A. M. Brown, plaintiff’s attorney, made and filed in the prothonotary’s office, an affidavit, to the effect that, although defendant had paid the debt and interest in said case, he had not paid the costs, and that by reason of the non-payment thereof, the plaintiff was entitled to issue a writ of vend. exp. No allegation is made in the affidavit, that notice had been given to the defendant to retain the property, at the valuation, nor any allegation that he had agreed to do so. A prcecipe for a writ of vend. exp. was attached to said affidavit, and the writ was issued the same day. On the 31st day of May, 1856, the defendant, James Black, obtained a rule on the plaintiff, to show cause why the levy and inquisition, and writ of vend. exp. should not be set aside, at plaintiff’s costs.</p> <p>The reasons filed in support of said rule were :</p> <p>1. That the levy and sheriff’s advertisements did not describe the improvements on the land levied on.</p> <p>2. That the plaintiff had no right to issue a vend, exp., because the property never had been condemned, and on the extension, no notice to accept at the valuation had been given to the defendant.</p> <p>This rule was discharged on the 17th of June, 1856, and reinstated on the 21st of June, 1856, and again discharged on the 2d of December, 1856. On the 25th of August, a. d. 1857, an alias writ of venditioni exponas was issued to October Term, 1857, and on this writ, the sheriff sold said tract of land to Robert Pollock, on the 5th day of October, 1857, for the sum of $36, being the amount of the costs on said writ.</p> <p>James Hare had a judgment against James Black et al., No. 312, October Term, 1855, upon which a ft. fa., No. 19, June Term, 1856, was issued, and the property extended, and notice to defendant to retain the same, and acceptance by defendants of premises at the rental, May 15, 1857.</p> <p>This was a writ of error to the venditioni exponas.</p>

This was an action of ejectment by Jacob Shoofstall against Charles Adams, for sixteen acres of land. On the trial, the title was admitted to have been in John Reynolds on the 8th day of January, 1850, and previous thereto. 'At this date, Reynolds contracted to sell to Daniel Tingley, 64 acres 58 perches of land, of which this in controversy was a part.

On the 17th of April, 1858, a petition was presented to the court, signed by David Boyd, and sixty-one others, setting forth “ That in the month of July, 1857, the Board of School Directors of the First ward, Pittsburgh, was composed of William M. Hersh, George W. Coffin, and Henry Murphy.

<p>1. If an assignment be made for the benefit of creditors, the creditors are affected by the trusts and equities with which the assignor was affected.</p> <p>2. If a portion of the property of the assignor, be in the hands of another, subject to a trust, the recovery of the property by the assignee, in a suit at law, does not defeat the trust.</p>

<p>1. One partner cannot make himself the agent of his firm to subscribe stock to a railroad company — the building of railroads not being within the scope of the partnership.</p> <p>2. To enable a railroad company to recover against a firm for stock subscribed by one of its partners,' plaintiff must prove the assent of all the partners.</p> <p>3. Where one partner subscribes, in the name of a firm, to the stock of a railroad company, if the other partner has knowledge of the subscription, and of the payments thereon by the firm, and does not dissent, it is strong evidence of assent, which, if given either before or after the subscription, ratifies it forever.</p>

<p>1. The Act of Assembly of 24th February, 1834, \ 20, providing for the sale of a decedent’s real estate, when the personalty is insufficient to pay debts, contemplates merely the conversion into money, of so much of the decedent’s real estate, as, when added to the personalty, will be sufficient to pay his debts.</p> <p>2. Both the policy and the letter of that Act of Assembly, favor cash sales, and the Orphans’ Court, as a general rule, ought to prescribe no other. But whenever the court, in ordering a sale of decedent’s real estate, have satisfactory reason for believing that a sale, more advantageous for all parties, heirs as well as creditors, can be made on time than for cash, such a sale should be ordered. But no payment should be postponed, beyond a year from the confirmation of sale. And whatever purchase-money is not paid down, should be secured, either by judgment bond, or mortgage, as a lien on the premises.</p> <p>3. The court, and not the administrator, should fix the terms of sale.</p>

This was a second ejectment, brought by Eliza Hood, acting executrix of John M. Hood, of Philadelphia, deceased, against Mary Hood, et al., heirs-at-law of M‘Clelland Hood, deceased, for a tract of land known as “ Safe Landing,” situated in Ohio township, Allegheny county, containing 226 acres. The judgment for defendants, rendered in the former trial, was affirmed by. the Supreme Court. See 1 Casey, 417. John M. Hood and McClelland Hood, were brothers.

<p>Application for a charter for the First Presbyterian Church of Harrisburg.</p>

<p>1. An order that all proceedings on a judgment shall he stayed, and that no writ of habere facias possessionum shall issue thereon, until the final determination of a pending proceeding-, to assess damages for taking the land recovered, “ subject to such further order of the court as the justice of the case may require,” is not a final judgment, and is not removable by writ of error.</p> <p>2. A writ of error will lie, to remove an order of court to stay an execution indefinitely upon a judgment.</p> <p>3. No writ of error will lie until final judgment, before which it is powerless to remove the record of the inferior court.</p>

In Equity. — Appeal from the decree of the District Court of Allegheny county. Nicholas Voegtly, Jr., the complainant, by perpetual lease, dated 5th April, 1828, demised to Christopher Seeley, his heirs and assigns, a lot of ground in Allegheny city, reserving an annual ground-rent of $600, with right of re-entry.

<p>Error to the Court of Common Pleas of Somerset county.</p> <p>Richard O’Connor, of F., commenced suit against Richard O’Connor, of T., a non-resident, by foreign attachment,. to November Term, 1855, and “ attached all moneys, debts due, property, rights, or credits of Richard O’Connor, of T., in the hands, possession, or custody of Sally O’Connor, as garnishee.” On the 5th April, 1856, a “ narr.” was filed, containing the common counts in assumpsit. On the 10th September, 1856, Mr. Gaither moved for judgment, which was granted him. No notice was ever given to the garnishee, or to the defendant, or any one interested for either of them.</p> <p>On the 14th day of October, 1856, a soire facias, issued against Sally O’Connor, garnishee, to No. 73, November Term, 1856; and on the 3d day of February, the case was tried.</p> <p>On the trial of the case, the counsel for Sally O’Connor asked the court to instruct the jury, that as no notice was given when the judgment was taken, that the plaintiff in this case cannot recover. This was refused by the court; and this is the error assigned, on this writ of error taken by Sally O’Connor, the garnishee.</p>

<p>Error to the Court of Common Pleas of Erie county.</p> <p>On the 26th of November, 1855, Jonas W. Urch brought suit before a justice of the peace, against William A. Donaldson, retrumable December, 1, Í855, which was personally served. “ December 1, 1855, parties appear and settle, and agree on the balance due, to be $106.22.” December 15, 1855, J. J. M. Butler became bail absolute for stay of execution. The debt not being paid, and defendant insolvent, a scire facias was issued against J. J. M. Butler, on the 31st January, 1857, upon his recognizance for stay of execution. Butler did not appear before the justice, and judgment was entered against him by default for $116.72, and costs. The case was then appealed to the Common Pleas, when a stated case, embracing all the foregoing facts, was agreed upon, concluding as follows:—</p> <p>“ If upon the above statement of facts, the court is of opinion that the justice of the peace had jurisdiction in the case of Jonas W. Urch v. William A. Donaldson, first above mentioned, and the judgment confessed in that case is valid, then judgment to be entered in this case in favor of the plaintiff, for the sum of $116.72, with interest thereon, from the 5th day of February, 1857, with costs ; but in case the court is of the opinion that said judgment is void for want of jurisdiction in the justice, then judgment to be entered for defendant, with costs.”</p> <p>Upon this stated case, the court entered judgment for the plaintiff, and defendant takes this writ of error, and complains of the entry of judgment on the case stated.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of replevin by plaintiff in error against McKee and Magill; but the case resolved itself into an entirely different question in the course of the trial. On the 8th of January, Alexander McKee, agreed to sell T. J. Coleman (who afterwards assigned to Demarest) three acres of land for $2400, $400 of which was to be paid in cash, and $2000 in the stock of the Chartiers Coal Company. The debt was presently payable. The coal company failed, and Demarest purchased all its property at sheriff’s sale, and its stock became worthless; after which the' company closed operations, March 1st, 1854. About ■August, 1855, Demarest tendered to McKee the money and stock mentioned in the contract — the consideration of the land— and demanded ' a deed. The court, Williams, J., directed a verdict for defendant; whereupon this writ of error was taken, and the entry of judgment complained of as error.</p>

<p>Error to the Court of Common Pleas of Armstrong county.</p> <p>This was an action of ejectment for 727-^ acres of land, in South Buffalo township, Armstrong county, Pennsylvania. The land was patented to William Todd, on the 16th day of September, 1786, and it appears, was held by William and David Todd, as tenants in common, until about the year 1811 or 1812, when it seems, the title to the whole tract was vested in Jacob Weaver. On the 10th day of July, 1817, Jacob Weaver entered into a contract to sell the undivided half of said tract to Henry Smith Weaver, for the sum of $700, which sum, it appears from the receipts on the contract, was fully paid; and on the 6th day of June, 1818, Jacob Weaver, in pursuance of said contract, made a deed to Henry Smith Weaver, for the land aforesaid. This deed was recorded in Armstrong county, on the 20th day of April, 1830. Henry Smith Weaver took possession of the land in the year 1817, and continued therein until his death in 1834, or about that time.</p> <p>The plaintiffs claim under Henry Smith Weaver. Emily White and Louisa Logan, two'of the plaintiffs, are daughters of Henry Smith Weaver, deceased. Henry Smith Weaver was a son of Henry A. and Mary M. Weaver. The latter survived her husband, and this suit was originally brought against her; but she having died pending the same, her heirs, the present defendants, were substituted. Mary M. Weaver had six children, part of whom are living, and those that are dead leave issue surviving them.</p> <p>The plaintiffs claim to recover in the first place, the one undivided half of the land in dispute, as heirs of Henry Smith Weaver, deceased; and in the second place, they claim the one undivided seventh of the other half of said land under the declaration and deeds of trust exhibited in evidence by the defendants, conveying the land “ for the use of the wife and children of Henry A. Weaver.” This latter claim is based upon the position, that by the aforesaid declaration and deeds of trust from Jacob and Benjamin E. Weaver to Mary M. Weaver and her children, the said Mary M. Weaver and Henry Smith Weaver, were tenants in common of the land in dispute, and that she ousted the said Henry Smith Weaver, and he or those who represent him, are entitled torecover their moiety in this ejectment.</p> <p>The defendants claim the whole land under Mary M. Weaver, in whom it is alleged the title was vested at her death, she having derived the title in the following manner: 1st. By means of the Statute of Limitations. 2d. As to the one-half, by means of a declaration and certain deeds of trust from Jacob and Benjamin F. Weaver; and as to the other half, by means of a deed from the executors of Henry Smith Weaver to Mary M. Weaver, dated 20th July, 1836.</p> <p>The plaintiffs answer to this defence was, that under the facts of'this case, the Statute of Limitations did not protect the defendants. 1st. Because Mary M. and Henry Smith Weaver, were tenants in common. 2d. That Mary M. Weaver, having accepted and recorded the declaration and deed of trust from Jacob and Benjamin F. Weaver, as also the deed from the executors of Henry Smith Weaver, in which deeds, the character of her occupancy, and the rights of both the parties were clearly fixed and defined; therefore she, and those who represent her, are estopped from claiming, inconsistent with hér recorded title. The plaintiffs further contended that the deed from the executors of Henry Smith Weaver to Mary M. Weaver, dated 20th July, 1836, was invalid, inasmuch as the executors had no power to make such a deed. And lastly, the plaintiffs contended, that under the declaration and trust deeds aforesaid, Mary M. and Henry Smith Weaver, were tenants in common, (of the one-half of said lands.) And that she having ousted him, he or his heirs were entitled to-recovef his moiety in ejectment.</p> <p>The court (M‘Calmont, J.,) held the deed from the executors of Henry Smith Weaver valid, to convey to Mary M. Weaver the one-half of said land, and that she was entitled to the other 'half by virtue of the aforesaid declaration and deeds of trusts, absolutely, and not as tenant in common with her children. The court also took the question of ouster from the jury.</p> <p>The following is an extract from the will of Henry Smith-Weaver :</p> <p>“ I do also give my executors full power and authority, if it shall be deemed by them prudent and advisable, to sell the whole or any part of my real estate, (except my mansion-house and lot, during the widowhood of my wife,) if a fair price can be got therefor, and to make out and execute deed or deeds to the purchasers.”</p> <p>The ruling of the court was the error assigned.</p>

On the 15th of March, 1858, Henry S. King obtained judgment against Elias Baker, in the Court of Common Pleas of Blair county, for $10,500. March 18,1858, an exemplification of the record of this judgment was entered in the District Court of Allegheny county, to No. 588, April Term, 1858, and a fi. fa. issued thereon, which was afterwards stayed by plaintiffs’ attorney.

<p>Error to the District Court of Allegheny county.</p> <p>The substance of the history of this case is sufficiently indicated, in the opinion of Mr. Justice Thompson. The reports of the cases, of this same company, (Pittsburgh and Connellsville R. R. Co., with Byers and M4Cully, 8 Casey, 22, 25,) give in detail, the facts which existed in this case also. They need not be here repeated.</p>

<p>Error to the Court of Common Pleas of Cumberland county.</p>

<p>1. The decision of a jury in a criminal case, that the defendant shall pay the costs, is not conclusive of the existence of probable cause.</p> <p>2. Putting the costs in a criminal prosecution on the prosecutor by the jury, is not conclusive of the want of probable cause.</p>

<p>1. An attorney in fact, who collects money for his principal, is bound to pay it over at once ; and his neglect to do so, is a breach of the implied contract, for which an action of assumpsit will lie.</p> <p>2. When an attorney in fact, collects money for his principal, and neglects to pay it over, the Statute of Limitations commences to run as soon as the right of action accrues.</p> <p>3. If a client appliés to his attorney, and receives a false or evasive answer as to moneys collected, it will arrest the running of the Statute of Limitations.</p> <p>4. Where an attorney collects money for his client, and uses no fraud or falsehood to him in relation to it, the statute commences to run from the time of the collection.</p> <p>5. Where the professional relation of attorney and client, involves a series of acts and duties, an attorney is not sueable, until the relation is dissolved.</p> <p>6. Where the relation of attorney and client involves only a single transaction, as the collection of a debt, he is not to be instantly annoyed with an action, nor suit brought until demand made.</p> <p>7. If an attorney does not pay over, or give notice of money collected in a reasonable time, it is culpable negligence, for which an action may be brought without demand.</p>

<p>Error to the Court of Common Pleas of Cumberland county.</p> <p>The plaintiffs below and defendant, entered into written agreements for the sale and purchase of one thousand bushels of wheat, as follows:</p> <p>“ Bought of A. & R. Noble, one thousand bushels of wheat, to be good and merchantable, at ninety cents per bushel, which théy promise to deliver to me, the undersigned, at my mill, in the month of October next, or sooner, if convenient. Received ten dollars on account of the purchase-money.</p> <p>“ Signed, M. James.”</p> <p>By plaintiffs:</p> <p>“ Bought of Robert Noble, one thousand bushels of wheat, to be good and merchantable, at ninety cents per bushel, which I promise to deliver to M. James at his mill, and to be delivered in the month of October next, or sooner, if convenient. Received ten dollars on account of the purchase-money.</p> <p>“ Carlisle, Sept. 1, 1852. A. & R. Noble.”</p> <p>In pursuance of this agreement, the plaintiffs delivered to defendant, as per receipts, viz.:</p> <p>Receipts on the ith October, 11th “ 14th “ 16 th “ “ “ 18th Being in the aggregate, 1852, for 89 bushels 50 lbs. wheat, 103 98 66 88 96 544 38 44 45 34 38</p> <p>which James alleged to be inferior in quality to that contracted for, and wrote to them a letter, as follows:</p> <p>“ Gentlemen — I hereby give notice that I shall receive no ■ more wheat on our contract, unless you send as per agreement; the greater portion of all I have received is very inferior, on which I shall claim a deduction ; none of it holds out.</p> <p>“ Yours Respectfully, M. James.</p> <p>“ October 16, 1852.”</p> <p>This letter the Nobles construed into a recision of the contract, — delivered no more wheat under the agreement, and brought them action of debt as above stated, for the recovery of the price of five hundred and forty-four bushels and nine pounds. On the first trial of it, the court below held, that the letter of October 16th, 1852, was not a recision of the contract, and it being entire, the plaintiffs were not entitled to recover. A writ of error was sued out, and this court being of opinion, that the quality of the wheat should have been left to the jury, and if they found it to have been of the quality contracted for, then the plaintiffs might regard the letter as a recision, and recover for the amount delivered; but if the quality of the wheat was not such as contracted for, then that letter in the language of the court, “ was nothing more than a call for faithful performance.” The jury having found that the wheat delivered was not such as contracted for, .and reduced the plaintiff’s demand by their finding below their claim, the plaintiffs in error allege, is a virtual finding agreeably to the law, as settled by this court, that there was no recision of the contract of 1st September, 1852, for the delivery of one thousand bushels of wheat; and consequently the questions now presented by this record, are:</p> <p>1. Can the plaintiffs below recover for that part of the wheat delivered, upon their amended declaration in a quantum valebat count ?</p> <p>2. The contract being entire, and agreeably to the decision of this court, and finding of the jury, that there was no recision of it, and no evidence in the cause, that the defendant below ever refused to receive any wheat sent to him, or to comply with his contract, can the plaintiffs below, and without the consent of the defendant, elect to annul their contract, and make their agreement the foundation of an action which he could not maintain under it ?</p> <p>The questions are raised on the following points put by defendants, and the answers of the court thereto.</p> <p>1. That the plaintiffs are not entitled to recover in this action of debt, under the pleadings and evidence in the cause; but must declare on the special agreement, and assign their reasons for not delivering the whole number of bushels contracted for, and recover in damages for the amount delivered by them.</p> <p>2. The contract in evidence, and on which suit is brought, is what is termed in law an entire contract, and the plaintiffs, at their own option, could not elect to rescind it and recover from defendant, before the quantity contracted for was delivered.</p> <p>3. The letter and notice of defendant, of the 16th October, 1852, was not such a refusal to receive the whole one thousand bushels contracted for, as authorized the plaintiffs to elect to rescind and recover the price of five hundred and forty-four bushels, nine pounds, delivered by them, as shown by the receipts in evidence.</p> <p>4. There is no evidence in the cause, that defendant ever refused to receive any wheat sent to him by the plaintiffs, in pursuance of the contract, or that he refused to receive and pay for the thousand bushels, which were to be delivered in pursuance of the contract; and, in the absence of such proof, the plaintiffs cannot recover in this action.</p> <p>5. If the jury believe that the wheat delivered was inferior in quality to that bargained for, the letter of the 16th October, 1852, was no recision of the contract, and the plaintiff is not entitled to recover.</p> <p>To which the court gave the following answers:</p> <p>“ The defendant has presented various legal propositions which we are requested to answer. This case has been before the Supreme Court, and the law applicable to it decided there, and we answer the points presented in accordance with their opinion now before us, as we understand it.</p> <p>1st point. We instruct you that the plaintiffs may recover on the pleadings and evidence in this case.</p> <p>2d point. We instruct you that under the evidence in this case, the plaintiffs may recover the value of the wheat delivered, although they did not deliver the one thousand bushels called for by the written contract.</p> <p>3d point. The letter referred to, was not a recision of the contract, should you be of opinion, that the wheat delivered was not good and merchantable; yet, notwithstanding this, the plaintiffs can recover the value of the wheat delivered by them, deducting any damages sustained by the defendant, by reason of the non-delivery of the one thousand bushels.</p> <p>4th point. Although there may be no such evidence, on the part of the plaintiffs, as is mentioned in this point, this will not defeat a recovery by plaintiffs.</p> <p>5th point. Even if the wheat was inferior in quality to that bargained for, the plaintiffs may recover its value, deducting any damages sustained by defendant. Judge Lewis, in delivering the opinion of the Supreme Court, says: — £ The acceptance of the wheat, and the delivery of separate receipts for each load, specifying the number of bushels by weight, is strong evidence that the article corresponded in quality with that contracted for, and that circumstance, in connection with the declaration of the defendant’s note of the 16th of October, 1852, that he would receive no more, unless sent as per agreement, and that he would claim a deduction for the inferior quality of what he had received, is decisive of his liability for the value of what had been delivered. Against this demand, he has a right to set off the damages, arising from the non-performance of the contract, if it be not rescinded by the parties.’</p> <p>This we instruct you' is conclusive of the plaintiffs’ right to recover.”</p> <p>The errors assigned, are</p> <p>1. The court erred in permitting the amended declaration to be filed.</p> <p>2. In their answers to the jury to defendant’s first, second, third, fourth and fifth points.</p>

<p>In Equity. — Appeal from the decree of the Court of Common Pleas of Lancaster county, dismissing complainant’s bill.</p> <p>Thomas Mackinson died in 1823, leaving by his will two lots of ground in Lancaster, with a dwelling house thereon, to his wife Mary Mackinson during her life; giving her liberty, in case of real need, to take up money from time to time upon the property bequeathed to her, to relieve such wants; with remainder to his executors to sell, &c. Mrs. Mackinson took possession of the property and enjoyed the rents, issues and profits thereof, to the time of her death, which occurred on the 30th of August, 1853. The defendant, her executor, filed an inventory of her personal estate, amounting to $1539.87, to wit, goods and chattels appraised at $144.12, cash $87.75, bond and mortgage with interest, $1308.</p> <p>The lots thus devised by Thomas Mackinson to his widow, were subject to a ground-rent or rent charge to John B. Newman, trustee of Hamilton’s heirs, of four pounds sterling per annum. This rent Mrs. Mackinson for many years omitted to pay; and at the time of her death the arrearages had accumulated, with interest, to the sum of $1045.58. This bill 'was brought to require her executor to pay to John B. Newman in relief of the inheritance, the said sum of $1045.58, with its interest, together with $14.57, costs of suit on a judgment obtained therefor by Newman against the estate.</p> <p>The Court of Common Pleas, Hayes, J., dismissed the bill, and complainant appealed.</p>

<p>1. The opinions of those who surround a man during his last illness, accompanied with the facts on which they are founded, are competent evidence on the question of the physical power of the decedent to execute his will, or to request another to sign it for him. Per Lewis, J.</p> <p>2. The presumption of law is, that the will was properly executed, if the decedent, at the time of attempting to sign it, was in sound and disposing mind, and he desired to sign the same, as his last will and testament. Per Lona, J., Com. Pleas, approved by Supreme Court.</p>

Error, to the Court of Common Pleas of Dauphin county. This was an action of debt, originally brought by the plaintiff' below, before the chief burgess of the borough of Harrisburg, “ to recover the penalty for violating the fifth section of the ordinance of the borough of Harrisburg, passed March 1, 1851, in relation to the use of the public sewers in the borough of Harrisburg.” June 7th, parties appeared before the chief burgess, and a hearing was had, when “ the chief…

<p>1. The possession of a negotiable note, with the indorsement of the payee, is prima fade a sufficient title, to enable the plaintiff to maintain an action on it.</p> <p>2. In an action on a promissory note, the burden of proof that it was obtained bona fide, in the usual course of business, is thrown on the plaintiff by very slight circumstances.</p> <p>3. In an action on a promissory note, under a notice to plaintiff to prove consideration, &c., the defendant may give in evidence that the note has been stolen or lost, or obtained by duress, or procured, or put in circulation by fraud ; upon proof of either of which the plaintiff must show himself to be a holder bona fide, for value, &c.</p> <p>4. Where one of two partners gives the notes of the firm for his private debt, or for the accommodation of the payee, as between these parties, it is a gross fraud on the other partner.</p> <p>5. When a plaintiff derives title to the note in suit, through a fraudulent source, the law requires him to show the transaction to be bona fide on his part.</p>

<p>Appeal from the decree of the Orphans’ Court of Berks county.</p>

<p>1. After the lapse of twenty years, a legacy is supposed to be paid.</p> <p>2. The Orphans’ Court having no jury, are necessarily to judge of the facts as well as of the law.</p> <p>3. A petition for a citation, in the Orphans’ Court, should come from some person interested; and the facts necessary to show the interest and give the court jurisdiction, with the cause of complaint, and the relief desired, must be supported by oath or affirmation.</p>

<p>1. Questions of advancement depend upon the intention of the parent; and of this his declarations at the time, or the admissions of the child at the time, or afterwards, are evidence.</p> <p>2. Where money is lent or paid by a father to or for a son, at the request of the latter, and an account is stated by the father and interest charged, such loan or payment is a debt and not an advancement.</p> <p>3. An auditor’s report on a question of fact, is like the verdict of a jury, or an award under the Act of 1105, entitled to every presumption in its favor.</p>

<p>1. A plaintiff in error may have a second writ of error, after a non pros, of the first, but it will not be a supersedeas to an execution.</p> <p>2. A witness may testify to handwriting from a comparison of hands, provided that he saw the signature written to the test paper, or if the party has admitted the signature to be his.</p>

<p>Ekrob. to the Court of Common Pleas of Berks county.</p> <p>Jonathan Wright, who lived in Lebanon county, near Jones-town, had been dealing with Richard Hecksher, of Schuylkill county, before 1852. On the 12th of February, 1852, Hecksher sold to Wright 300 or more tons of coal, at $2 per ton, at Schuylkill Haven, in exchange for flour. Hecksher was to ship the coal at Schuylkill Haven, by Reading Railroad to Reading, for Wright, to Wright’s consignee, to be named thereafter. The coal was to be sent first, and the flour was to be delivered at Hecksher’s store or mines in Schuylkill county, when the Union Canal opened; not later, however, than the 1st of May, 1852. The following papers were signed by the parties as their contract, each party taking the one signed by the other:</p> <p>“Richard Hecksher has this day agreed to ship for me 250 tons or more of W. A. lump coal at $2 per ton, at Schuylkill Haven, less 5 per cent, for waste, against which coal I agree to deliver good, sound, fresh ground flour at said R. H. mines or store, at such prices as said R. H. may be able to buy good flour from other good flour dealers, at the times of delivery, which is to be at the opening of the Union Canal, but not later than the 1st of May. I guarantee the flour to be as above stated, and if it should not turn out as such, willing to take it back or exchange it.</p> <p>“February 12, 1852. J. Wright.”</p> <p>“ 250 to *300 tons lump coal to be sent to Reading by railroad for Mr. Jonathan. Wright, to a firm to be given us by him, at $2 per ton at Schuylkill Haven, less 5 per cent, for waste, against which 250 tons or any amount shipped by us, Jonathan Wright will deliver good, sound and fresh ground flour to me, at my mines or store, at such prices as I can buy from other good flour dealers flour at the time of delivery, which is to be at the opening of the Union canal.. Mr. Wright guarantees the flour to be good, and take back if any should turn out not as above stated.</p> <p>“ Richard Hecksher.</p> <p>“Freshville, February 12, 1852.”</p> <p>On the 20th of February, 1852, Wright made an arrangement with Frees & Mull, at Reading, to receive his coal at Reading, cart it to them wharf and provide wharf-room for it on the canal, and then send it to Lebanon county as soon as the Union canal opened. The next day Wright wrote to Hecksher as follows :—</p> <p>“Reading, February 21, 1852. '1</p> <p>“ Richard Seclcsher, JEsq. — Dear Sir: — I am at Reading, and have arranged about my coal with Messrs. Frees & Mull to receive them and attend to them, also I have arranged with the railroad company. Now I want you to send me the 300 tons as soon as you possibly can. Send them as much together as possible, as they are prepared to take them away from the shutes as fast as they come; and I presume they want to keep their carts going when they begin; you will direct them to Frees & Mull, Reading, and the reason I want them right off, is, while our teams from Lebanon are hauling grain and flour to Reading, they will expect coal in a day or two from this time, as I told them you would send as soon as I ordered. When these are done, if I see I can arrange for more, I will perhaps take more. I have written my friends at Harrisburg, also Mr. Benet, in regard to the matter we spoke about when I saw you. I expect to be at Harrisburg next week.</p> <p>“Yours, with respect,</p> <p>“ J. Wright.</p> <p>“ Please answer to Jonestown P. O., Lebanon Co., on reception of this.”</p> <p>Hecksher commenced sending coal from Schuylkill Haven to Reading, to Jonathan Wright to the care of Frees & Mull, on the 9th of March, 1852, and continued to do so almost every day during the month of March, and on the 2d, 3d, 5th and 6th of April; the coal sent the last four days w&s about 90 tons.</p> <p>■ The way bills and tickets brought down with the coal, consigned it to Jonathan Wright, care of Frees & Mull at Reading. When the coal arrived at Reading, the tickets were delivered to Frees & Mull; the coal was dumped into shutes that were marked Frees & Mull, they having rented the shutes from the Reading Railroad Company, under a special arrangement, for Wright’s coal.</p> <p>Frees & Mull commenced carting the coal from out of the shutes to their wharf, and continued to do so while the coal was brought down to Reading and dumped into the shutes. Part was still in the shutes when the sheriff levied on the coal. Frees & Mull paid the freight on the coal, and for the use of the shutes, to the Reading Railroad Company. Wright had also purchased coal from McDonald — that was brought down the Reading railroad about the same time — that was also in the care of Frees & Mull, and dumped into the same shutes. McDonald’s coal and Hecksher’s were mixed. Hecksher had nothing to do with the shutes into which the coal was dumped, neither with the wharf, to which a part was taken, nor was he to pay any freight, after the coal left Schuylkill Haven. When the contract was made, no other place where the coal was to be sent, was named than Reading, to a firm to be named thereafter. Hecksher knew not what was to be done with the coal after it reached Frees & Mull, at Reading, other than what he may have learned from Wright’s letter of the 21st of February, 1852.</p> <p>About the 8th or 9th of March, 1852, Wright had four wagon-loads of coal hauled from Frees & Mull’s wharf to Lebanon.</p> <p>On the 2d of April, 1852, Jacob Light entered up judgment in Berks county, against Wright, and issued a fi. fa. on the same day, which fi. fa. came to the sheriff’s hands at ten minutes before ten o’clock, A. M. On the same day, the sheriff levied on the coal at the Railroad, and the coal on the wharf of Frees & Mull. Some of the Hecksher coal arrived at Reading on the 2d, 3d, 5th and 6th of April — this coal was also dumped into the shutes marked Frees & Mull, with the exception, perhaps, of three, four, five or six cars of coal; being probably the cars that came down on the 6th of April.</p> <p>On the 7th of April, 1852, Mr. Strong, with Hecksher, and for him, gave notice to the agent of the railroad, where part of the coal still remained, that he claimed the coal for Hecksher, as his — he gave the same notice to the sheriff, and also to Frees & Mull, as to all the coal at the railroad and on the wharf.</p> <p>On the 9th of April, Light gave his bond of indemnity to the sheriff, and on the 19th of April, 1852, the sheriff sold the lot of coal on the wharf to Jacob Light for $700, and the lot at the railroad to Frees & Mull for $300. This last coal was in the shutes at the railroad, when sold by the sheriff.</p> <p>. In the course of the trial, the plaintiff offered to prove a fraudulent combination between Jacob Light and Jonathan Wright, to get the coal from Richard Hecksher into their possession; the defendant objected to the evidence, the court overruled the objection, and admitted the evidence. Defendant excepted, (and this is the only bill of exceptions to evidence.)</p> <p>On the trial, defendant asked the court to instruct the jury as follows:</p> <p>“ 1. That Frees & Mull were the agents of Jonathan Wright, for the purpose of receiving the coal at Reading, and that they were not the agents of Richard Hecksher, for any purpose whatever.</p> <p>“ 2. That a delivery of the coal to Frees & Mull, the agents of Jonathan Wright, was in law a delivery to Jonathan Wright himself.</p> <p>“ 3. That after the coal was brought to Reading, and deposited or dumped into the shutes of the Reading Railroad Company, and a part taken away by Frees and Mull to their wharf, the coal rvas in the possession of Frees & Mull.</p> <p>“ 4. That the plaintiff, Richard Hecksher, had no such possession of the coal or shutes, as would enable him to maintain this action of trespass against the sheriff, and that, therefore, the plaintiff cannot recover.</p> <p>“ 5. That this action against the sheriff, (the defendant,) cannot be sustained; and that all the acts and doings of Jonathan Wright, or Jacob Light, before or after the levy and sale under the execution, do not affect the sheriff in any way to aid the action.</p> <p>“ 6. That although Jonathan Wright knew that he was insolvent and unable to pay for the coal, Avhen he made the purchase from Richard Hecksher, and intended not to pay for it, it- is not a fraud upon Hecksher, not being communicated to induce him to make the sale, and will not avoid the sale, so as to entitle Hecksher to reclaim the coal, after it was in possession of Wright’s agents. That to avoid the sale, Wright must have used artifice intended and fitted to deceive Hecksher, of which there is no evidence in the cause.</p> <p>“ 7. That in this case, the right of stoppage in transitu is gone, and that, therefore, the plaintiff cannot recover.”</p> <p>The court, (J. Pringle Jones, J.,) charged the jury as follows:</p> <p>“Jonathan Wright had had dealings with Hecksher before 1852. Light was already indorser and bail for Wright, in the Lebanon and Harrisburg Banks, and to others, exceeding $2000, being embarassed and pressed by a creditor. In January or February, 1852, in conference with that creditor’s attorney, he informed him that he had bought, or could, or intended to buy coal, convert it into money and pay off. The attorney gave him time, but finding he could get nothing, brought suit the 2d of February, 1852. The 12th of February, 1852, Wright entered into a contract for 250 tons of white ash lump coal with Hecksher. The cost of the coal was to be $2, at Schuylkill Haven, then it was to be sent to Reading. 18th of February, Light indorsed a note in the Lebanon Bank for Wright for $1000, discounted. On the 20th of February, 1852, Wright saw Frees & Mull and arranged for the reception of the coal. February 21, 1852, letter from Wright to Hecksher, announcing that Frees & Mull would receive the coal at Reading. February 23, 1852, letter, Wright to Mull & Frees, that Hecksher would send 400 tons. March 3, 1852, Light indorsed two notes for $1052. On the 6th of March, 1852, ordered Patton that the coal be shipped to him as quick as possible, and same day wrote to Hecksher.</p> <p>“ Letter on the 8th of March, Wright to Frees & Mull, sending four teams with flour, and they to bring back coal. On the 9th of March, 1852, coal began to be delivered, and was delivered from day to day to 6th of April. March 23,1852, letter from Wright to Hecksher to send six or eight ears a day — disappointed — could make a good arrangement if he could get the coal now. About 1st of April, sale of the personal estate of Wright in Lebanon county, bought mostly by Light and Wengert. Wright went on as before, retaining possession in the name of Light and Wengert. A few days before the 2d of April, Wright tells Mr. Barclay that a judgment bond would be sent from Kline and Weidman, where the property was to be levied, at the wharf and at the railroad. Instructed Barclay as to the value of the coal, acting as agent apparently of Light.</p> <p>• “ April 1, 1852, Wright gave judgment to Light for $1990. Entered 2d of April. Same day another judgment for $199, entered April 1st. Same day another judgment for $2686, entered April 1st. Same day he gave a judgment to Light and Wengert for $497. Wright was clearly insolvent it is evident. April 2d, 1852, levy in Berks county, at the suit of Light v. Wright, and Light indemnified the sheriff. April 9th, letter from Wright to Hecksher, not to send more coal — professed friends were tearing him to pieces — come after him like the hawks of destruction. April 9th, same kind of letter to Frees & Mull. April 19th, sheriff’s sale in Berks county. Wright at the sale. Light buys the coal.</p> <p>“ 1. Frees & Mull were certainly designated by Wright’s letter of the 21st of February, 1852, to Hecksher, as his agents, for such purposes as are mentioned in that letter, and in the counterpart agreement of the 12th of February, 1852, signed by Hecksher. Hecksher was to send 250 tons of coal to Reading, (agreement of 12th of February, 1852, signed by Jonathan Wright,) and by agreement signed by Hecksher, to be sent to Reading by railroad for Jonathan Wright, to a firm to be given us by him. Frees & Mull being indicated, Patton says he sent the coal mentioned in the tickets, to Frees & Mull, Reading, on account of Jonathan Wright.</p> <p>“It is a question of fact, whether Frees & Mull were the agents of Jonathan Wright, and for what purposes. They seem to have been agents of Jonathan Wright to receive the coal at Reading, though as a fact in the cause it is for the jury. They do not seem to have been the agents of Hecksher.</p> <p>“2. A delivery.of the coal to Frees & Mull, in Reading, as tb.e agents of Jonathan Wright, would be in law a delivery to Jonathan Wright, if they so far represented him, as to make a delivery to them a full, effectual and final delivery to Wright, as contra-distinguished from a delivery to them acting as a mere medium of transit towards Wright. Cross on Liens, 372.</p> <p>“ If the transit is once at an end the delivery is complete, and the transit cannot commence again, merely because the 'goods are again sent to a new and ulterior destination.</p> <p>“When by arrangement an intermediate delivery occurs, before the goods reach their ultimate destination, it is to be enquired whether the party to whom they are so delivered is invested with power to receive them and to alter their destination, or is a mere agent to see them forwarded, agreeably to original directions. If clothed with a general and unlimited power, in this respect, the transit ends when goods reach his hands, as between vendor and vendee ; this is the ulterior- delivery in view as between them. It is an actual delivery, not constructive.</p> <p>“When goods are ordered to be forwarded to A. at X. for the purpose of being shipped to Y., it has been held that at X. they had so far got to the end of their journey, for they then required new orders to put them again in motion, or they must otherwise continue stationary. It is in the option of the vendee to send them where he thinks proper. Cross on Liens, 373.</p> <p>“ These coals were sent from Hecksher to Frees & Mull, at Reading, on account of Jonathan Wright.</p> <p>“If an agent be clothed only with specified and limited authority to forward goods to a particular destination, the transitus is not at an end till the goods have reached the place,’ named by tbe buyer to tbe seller, as such destination. Cross on Liens, 736, 737.</p> <p>“3. The coal was certainly in possession of Frees & Mull, when it was taken to their wharf, and it may be said, that so even was the coal in the shutes under the special arrangement with the company for the use of their shutes for that coal. The shutes, under that arrangement, were the same as the yard, so far as manual possession of the coal went.</p> <p>“ The question still recurs, what was the nature of that possession ? That has been brought to your attention under number 2.</p> <p>“ 4. That depends on the right to stop in transitu. If Hecksher had that right to stop in transitu, that is, if the delivery to Frees & Mull, was not final, but a delivery in transitu, he may maintain his action of trespass against the sheriff for selling his goods; if he had not that right, the goods would not have been his, and his action would fail.</p> <p>“ 5. This point goes to the foundation of this action. We will not say that the action cannot be sustained. The alleged right of stoppage cannot be defeated by any claim against the consignee, whether by process against the consignee, or the carriers’ claim to a general lien for ^alance due him from consignee, for the seller’s power of intercepting the goods is the older and preferable claim.</p> <p>“ 6. This proposition is unquestionably true. The ease in 9 Harris goes to that extent, apparently, and, if it bé not presumption in us to express satisfaction with a decision of the Supreme Court, as we think, most wisely.</p> <p>“ The question of fraud is put on the ground of fraudulent combination between Wright and Light, to get this coal from Hecksher, and into their possession, which, if it were so, would avoid the sale. The single-handed rascality of Wright in knowing of his insolvency when he bought, and intending not to pay for the coal, if such be the fact, would not avoid the sale; there must have been an artifice intended and fitted to deceive Hecksher.</p> <p>“ 7. Whether the right of stoppage in transitu be gone in this case or not, is for the jury to say, applying the law already given them to the facts of the case.</p> <p>“If the jury should find for the plaintiff, either on the ground of fraud of Wright and Light, or that the coal was in transitu at the 'time of the levy, they will ascertain what quantity of coal was levied and sold, and give its value with interest from the sale.</p> <p>“ If the jury find against the plaintiff, on either ground of fraud or transitus, they will then ascertain how much coal was sold, that was not levied, and give its value and interest.</p> <p>“To this charge the plaintiff and defendant excepted, and at the request of each party, the same was written out, sealed and filed.”</p> <p>The admission of evidence, to prove a fraudulent combination between Jacob Eight and Jonathan Wright, to get Eichard Heeksher’s coal into their possession, to affect the sheriff, and the charge of the court, were the errors assigned.</p>

<p>Error to the Court of Common Pleas of Dauphin county,</p>

<p>1. A devise by a husband to his wife, of $3000’of his estate, “for her full use during her lifetime,” and at her death, if any left, “ I desire it” to go to other parties, entitles the widow to receive the money without security or condition.</p>

<p>Appeal from the decree of the Orphans’ Court of Bedford county, .in the matter of the distribution of the estate of Thomas Croyle, deceased.</p>

<p>1. Where a testator had made certain devises to his son and daughters, 11 including in-said several devises which are above-mentioned, any book accounts which may stand charged in my books against them respectively,” and two days after the date of his will, he had made statements in his book, showing the amounts received by each, and' that they were to be taken into consideration at the general distribution under his will, the sums so stated are advancements, and the will and the statement are to be considered together. . .</p>

<p>Error to the Court of Common Pleas of Dauphin county.</p> <p>This was an action by plaintiff in error, to recover from defendant, the amount of certain insurance, on the stable of the property known as the “ American House,” Hollidaysburg. The plaintiff purchased it December 20, 1851, for $9000, by article of agreement, and took possession of it April 1, 1852. Plaintiff built three dwelling-houses on the property during his possession of it, and before the insurances were effected, and paid $268.66 to apply on the purchase-money. He expended about $1500 in repairing the hotel, stabling, and shed. On the 31st of August, 1852, he insured with the defendants, $1500 for three years, on his stabling, then valued at $2000, and paid on said insurance cash, premium $45, for policy $1.50, and gave premium note for $90, which was afterwards collected by suit.</p> <p>He also effected an insurance with the same defendants, for the same length of time, on the hotel portion of the premises, to the amount of $2500. It appears he had an insurance elsewhere of $1000 on his furniture. At the time of the insurance he was asked, “Is it encumbered ? If so, to what amount,” to which he answered, “No.” The application in writing signed by the plaintiff, contained the following agreement:</p> <p>“ And the said applicant hereby covenants and agrees, to and with said company, that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant, and are material to the risk; and the said applicant further agrees, that if any alterations in or about the premises described are made, which materially affect the risk, he will notify said company of such alterations.”</p> <p>The stable was destroyed by fire, June 1,1854.</p> <p>The question here decided, arose upon defendant’s third ground of defence, which can best be understood by the following charge of the court on that point, by Pearson, J., to the jury, in which the facts are fully stated.</p> <p>“ 3. The plaintiff, on making application to have his property insured, was asked, £ Is it encumbered ? If so, to what amount ?’ He answered £ no,’ which is a clear negative to the whole interrogatory. The defendant says this answer is false. At the time of making this application, it appears that Mr. Peynolds, the applicant, had an article of agreement for the purchase of a hotel and stables in ITollidaysburg, at the price of $9000, on which he had paid $268.66, at the time of insurance. When the loss occurred, his payments amounted in all to from $1000 to $1500. At the time of insuring the stable, he also obtained from the same office a policy upon the house for $2500, making in all the sum of $4000.</p> <p>“ It is probably well known to most persons, that insurance companies are unwilling to underwrite a policy, to an amount exceeding about two-thirds of the value of the building. It is against public policy, as well as the safety of underwriters, to permit the holder of property to insure it to an amount far beyond the interest which he has in the estate. Such a course would be holding out a direct premium for carelessness, or the intentional destruction of the property insured. Hence every prudent company is careful to ascertain the value of the building, whether encumbered or otherwise, and the nature of the estate which the insured has therein. We find that course pursued here. Although the applicant is not directly asked, £ Do you own the estate V yet it is asked by the clearest imputation. In the first place, he sets out by representing that his new frame stable is worth $2000. He is then questioned, is it encumbered ? and answers in the negative. The 2d No. in the conditions annexed to the policy says: £ If the interest in the property to be insured be a household, or other interest not absolute, it must be stated in the policy, otherwise the policy shall be void.’ In the 17th No. of the conditions, it is provided, £ In all cases of application for insurance in this company, the applicant shall state the true value of the property, and also the encumbrance on the same,’ and provision is also made, that in case an encumbrance should afterwards be executed upon the property insured, sufficient to reduce the real interest of the insured in the same, to a sum only equal to or below the amount insured, and he shall neglect to give notice thereof, and obtain consent, &c., the policy shall be void. There is no misunderstanding what was meant by the parties in this case, from the whole scope of the application and policy on which the suit is brought; (and the two must be construed together, as if one instrument, in interpreting the contract.) It was obviously the intention of the underwriters to learn substantially the interest which the insured had in the estate, and it was the duty of the latter to make it known. Had the applicant stated, this property is worth $9000, but my interest in it is $268.66, no sane man can suppose that any person of ordinary business capacity would have insured it to the amount of $4000.</p> <p>“ Was the property encumbered ? The plaintiff’s counsel contends that it was not — that there can be no encumbrance but a judgment mortgage, or recognizance. We consider that writings of this character should be construed, rather by the whole scope and intention of the instrument, than by any legal and technical rule; that words in a contract must be understood by courts, as'they are ordinarily in society, and we cannot doubt that men generally understand any valid claim, held for the payment of money out of real property, and which must be paid before the holder of an estate can acquire a title, as an encumbrance upon it. Webster defines it to be ‘a legal claim on the estate of another,’ ‘a clog, impediment, embarrassment,’ &c. Wharton, in his Law Dictionary, defines it to be ‘a claim, lien, or liability attached to property.’ Bouvier says: ‘ It is the right of a third person in land, to the diminution of its value,’ &c. Also, that any outstanding older and better title, will be considered an encumbrance, &c. It is, in our opinion, a less technical expression than the word lien: yet the latter is defined by Bouvier, in its largest sense to £ include every case in which real or personal property is charged with any debt or duty.’ Every vendor of real estate has an equitable lien for the unpaid purchase-money: although it is true that our courts will not recognize that equity, where he has parted with the legal title. In the present case, the legal title was retained by the vendors. The vendee had but an equity, and the estate was encumbered with nearly the whole purchase-money. The insured could not demand a title until he had paid $4000, and must then encumber the property with a mortgage for the unpaid residue. We also consider the insured had not an estate absolute. It is obvious that in speaking of £ a household interest, or other estate not absolute,’ the company bad in view tbe necessity of its officers knowing tbe character of tbe insured’s interest in tbe property. A fee simple is an estate absolute. Here Mr. Reynolds bad no absolute estate of tbe kind, but a mere equity, to be changed to a fee simple estate on paying tbe purchase-money. Tbe absolute estate remained in tbe vendors. Tbe provision in tbe 17th condition shows that tbe underwriters intended to be relieved, if tbe insured permitted bis “ real interest’ in tbe estate to be reduced by encumbrances, so as to render him interested in having it destroyed. We cannot believe they would intentionally be guilty of tbe absurdity of making such a provision, and yet at tbe very time of insurance, have tbe property encumbered with purchase-money to its full value. For these reasons I am clearly of tbe opinion that tbe defendant is not liable on this policy, and that the plaintiff is not entitled to recover.”</p> <p>Of this charge plaintiff complains.</p>

The facts arc fully and clearly stated in the following charge of the court below, Pearson, J. “ This action of trespass was brought by the plaintiff, against John Fox, late sheriff, and John A.… Held: that, at the time of the sale, the owner has neither the possession, nor the right of possession, but the same is in the sheriff. “4th.

<p>Error to the Court of Common Pleas of Franklin county.</p> <p>This was an action brought by Emanuel Dieffendafer, and Catharine, his wife, for the use of said Catharine, against Jacob E. Wyant.</p> <p>. The facts fully appear in the following charge of the court, by Kimmel, J., on the trial in the court below, and is adopted as the statement of the case.</p> <p>“ This is an action on the case in the nature of waste, in which plaintiff complains that the defendant removed a barn, cut and destroyed thirty acres of timber, and permitted the house and fences to decay. John Wyant, the grandfather of Catharine, executed a deed of trust on the 2d September, 1831, to John Bonebreak and Jacob E. Wyant for a tract of land, upon which it is charged the waste was committed, containing fifty-eight or fifty-nine acres. The trust was to John S. Wyant, a dissipated son of the grantors. The trustees were to permit John to have the possession and enjoyment of the land, and to receive all the profits during life, if he thought proper to reside on it, and if not, the trustees were to secure the rents and profits to his children; and at John’s death, they were to convey the land to his heirs. This deed, it is alleged, was delivered to John Bonebreak, one of the trustees, in the latter part of the month of September, 1838, and that the trustees accepted the trust. On the 16th of August, 1838, the grantor made his will; admitted to probate 20th October, 1839, in which he speaks of this deed of trust as follows: — ‘ I give and bequeath to my son John, a life estate in the tract of land on which he resides, in conformity with a deed of trust executed by me to'him,’ and adds that the land was to pass to John’s children at his death.</p> <p>“ John S. Wyant died about the 1st January, 1854, leaving two children, Catharine, the plaintiff, being one. She was horn (if the evidence is believed,) February, 1829, and attained her legal majority in 1850.</p> <p>“ On the 16th October, 1838, John Wyant made, executed and delivered a deed to John S. Wyant for the fee simple of the land. It is alleged that John lived on the land, and that part of his personal property was in the house at his death.</p> <p>“ David Grood & Co., obtained judgment against John S. Wyant, in the Common Pleas of this county, for $138.36, to October Term, 1845, No; 6. Upon this judgment issued to August Term, 1846, No. 9. Sheriff levied on John’s life-estate in the land.</p> <p>“ The plaintiffs, on the 6th of October, 1846, petitioned the court for the appointment of a sequestrator. C. Gr. French was appointed, to whum the court gave instructions to sell defendant’s interest — -a writ issued for that piupose, and in obedience to its mandates, French sold the estate to John B. Wyant for $21.80, on the 14th November, 1846. This sale was approved of by the court, and the sequestrator directed to make a deed to the purchaser, which was done 5th April, 1848.</p> <p>“ The plaintiff alleges that these proceedings were the result of the advice and contrivance of defendant. That although the deed was made to his son, yet he was the real purchaser. That he engaged Mr. Zigler to bid it off at the sale for him, and furnished the purchase-money, that his son was not even present, when the sale took place ; that the purpose of the defendant was to get the possession of the land, so that he might spoil it of everything valuable upon it. It is also alleged that he took possession, in part, of the premises as far back as 1843, and continued there until 1854, and during that period, committed the wrongs, for which damages are claimed. The plaintiff says she is entitled to recover the utmost farthing, inasmuch as these injuries were committed by defendant with a full knowledge of her rights. He, as one of the trustees, assumed the duties, took counsel as to the nature of the deed, and the estate granted by it; had it recorded; notified other persons not to cut the timber on the land — attended before a magistrate in an action, in which the trustees were plaintiffs, against a trespasser for cutting timber on the land — recovered a judgment, and received the money ; and that after all this knowledge, he entered upon the land, and committed waste to the amount of $3000 or $4000.</p> <p>“ The defendant’s counsel say there can be no recovery here, for reasons assigned in the following points submitted by them.”</p> <p>The answers to the first and fourth points raise the question, upon which the errors are assigned in this court, and hence only are given.</p> <p>“ 1. That the deed of trust from John Wyant to John Bone-break and Jacob E. Wyant, for the premises on which the alleged waste was committed, requiring a conveyance of the premises to be made by said trustees, at the death of John S. Wyant, to his heirs, no action can be sustained by the present plaintiffs, without showing such a conveyance to Catharine ; and no such deed having been shown in this case, the verdict must be for defendant.</p> <p>“ 4. That no recovery can be had in this action, if a recovery can be had at all, except for damages and injury actually done to the premises, by the defendant, within the six years immediately preceding the bringing of- this action.”</p> <p>Which the court answered as follows:</p> <p>1. “ The delivery of the deed of trust is a question for the jury to determine from the evidence in the case. If the deed was delivered by the grantor to John Bonebreak, one of the trustees, in September, 1838, and the trustees accepted the trust, it could not thereafter be revoked without the consent of all the parties interested in the estate granted. This was not obtained. Mr. Bonebreak declares that he assumed and executed the duties of trustee during the whole period, to the best of his abilities, and never consented to any revocation, (to say nothing of defendant’s course,) and it is not even pretended that the consent of John S. Wyant’s two minor children, (of whom plaintiff is one,) was obtained, though then in full life. If the jury find that the deed of trust was never delivered, the plaintiff cannot recover, because the deed executed and delivered by John Wyant to his son John, 16th October, 1838, gave him the absolute estate in the land, and plaintiff could have no claim until the death of her father, which occurred about the 1st January, 1854, since which time there is no claim. If, however, the deed of trust- was delivered, the plaintiff has the right to recover, if waste was committed, notwithstanding the trustees never executed a conveyance to plaintiff. Under the facts in this case, she was entitled to one-half the inheritance, and the right of action follows.</p> <p>4.' “ If the jury believe that Mrs. Dieffendafer was born in February, 1829, and arrived at her legal majority in 1850, then during her minority, the running of the Statute of Limitations was suspended, and she is entitled to recover from the last six years of her minority.</p> <p>“ If the jury find that waste was committed, in determining the question of - damages, they must be governed by the permanent injury done to the freehold, judging from all the evidence in the case. We have already said, that she is entitled to re-recover from the last six years of her minority, if she arrived at .age in February, 1850, one-half of which will be your verdict.” .</p> <p>The foregoing answers were the errors assigned.</p>

<p>Error to the Court of Common Pleas of Perry county.</p>

Appeal by Abraham Huffier, from the decree of the Orphans’ Court of Franklin county, confirming the report of J. W. Douglass, Esq., auditor, appointed to report on the exceptions to the final guardianship account of Jacob Brewer, guardian of said Abraham Huffier. - Jacob Brewer, Jr., was appointed guardian of Abraham, in November, 1835. Abraham Huffier, Sr., the grandfather of said ward, died in 1829, leaving a widow, since dead, and seven children.

<p>Error to the Court of Common Pleas of Perry county.</p> <p>This was an action of ejectment for two hundred and ten acres of land in Oliver and Juniata townships. Both parties claimed under the will of Frederick Rider, deceased, the material part of which is as follows: “And I give and bequeath unto my beloved daughter Rosena, the plantation that she now lives upon, in Sherman’s Valley, in the county of Cumberland, and she shall have it as her own during her life, and then it is to come to the heirs of her body for their own use,” and the construction of which forms the subject of the decision in this case.</p> <p>The court, Graham, J., decided as follows: “This is an estate tail under the rule in Shelly’s case. Without referring to the numerous authorities cited by counsel, the cases of Q-eorge v. Morgan, 4 Harris, 95, and Hileman v. Bouslaugh, 1 Harris, 344, rule the present case. The deed from Rosena Fleurie, formerly Rider, the devisee, vested in defendant an .estate in fee simple, and as the oldest son and heir-at-law of the tenant in tail, he has an estate tail and valid title against the plaintiffs in either aspect of the case.” And entered judgment for defendant, which is the subject of complaint in this case.</p>

On the 6th of March, 1854, the passenger train from York to Baltimore, consisted of a locomotive, tender, baggage-car, and three passenger-cars.

<p>1. A, party to a suit, has no right to demand instructions to a jury, upon a point of law not raised by the pleadings, and, if asked for and given against him, he has no right to complain that they were erroneous in principle.</p> <p>2. A decree of the Orphans’ Court, settling the amount due from an administrator or executor, is conclusive of the sum due.</p> <p>3. The personal, as well as the real estate of executors and administrators, is bound for the payment of a balance, decreed to be in their hands by the Orphans’ Court.</p> <p>4. An action by scire facias, on a decree of the Orphans’ Court, fixing the amount in the hands of an executor or administrator, is in the nature of an action of debt ou a judicial decree, and not within the meaning of the Statute of Limitations.</p> <p>5. The Act of Assembly, which bars distributees who neglect to lay legal claim to their “ respective shares,’’ within seven years after the decease of the intestate, operates on distributees only, and not upon creditors.</p> <p>6. A judgment, in a common law action, against an administrator or executor, is only a judgment against the estate of the decedent, and does not bind the executor or the administrator personally.</p> <p>t. The Orphans’ Court has exclusive jurisdiction, of a plea by an administrator, that he had fully administered.</p> <p>8. The plea of nil debet cannot be received, to invalidate the decree of the Orphans’ Court.</p> <p>9. A discharged administrator is a competent witness to support the claims of an estate, in an action brought for their recovery by his successor.</p>

<p>Error, to the Court of Common Pleas of Clearfield county.</p> <p>This was an action of trespass quare clausum fir egit, for cutting timber, brought by the plaintiff in error, to which the defendant pleaded “not guilty, and liberum tenementum.”</p> <p>By virtue of a sale for taxes and sundry conveyances, Jacob Bowman became owner of 600 acres of' unimproved land, part of two tracts surveyed in 1785, on warrants granted to George and Margaret M‘Cormick, in 1784. There is an interference of the MUormick tracts with two other surveys, made in 1793, on warrants to Robert Wharton and George Scheaff. During Bowman’s lifetime, all of his land was assessed on the seated list; but after his decease, his part of the M‘Cormick’s (which was unimproved, save a few acres cleared over by mistake, by Dunlap, the owner of the William King, an adjoining survey,) was placed upon the unseated list, and taxes assessed thereon for the years 1845, 1846, and 1847. In June, 1848, the treasurer of Clear-' field county sold the land for the taxes of 1845,1846, and 1847, to Isaac Thompson, and by deed acknowledged in open court at September Term, 1848, conveyed the same to him in fee; since which time Thompson has been in possession, paying taxes therefor. The owner of the Wharton and Scheaff tracts, (Schuylkill Bank,) knowing of the interference, ran a line for the Wharton and other tracts, leaving in the Wharton tract about 144 acres and 104 perches. In 1841 the Schuylkill Bank returned for taxation 144 acres and 104 perches of the Robert Wharton tract; and in 1842,. 1843, 1844, 1845, and 1846, the same amount of land. About the year 1846, Chase, the defendant, became in some way (not shown by the evidence,) interested in the Robert Wharton tract, and the Robert Wharton and other tracts are transferred to Patchin and Chase, on the books of the commissioner’s office. Eor the year 1847, the return of the Robert Wharton and George Seheaff, appears to be made as though each tract contained 433 acres and 153 perches. Rut the assessment for that year has written above it the words, “see below;” and below, the number of acres fixed for the George Seheaff is 91, and the Robert Wharton, 179. For the year 1849, the George Seheaff and the Robert Wharton are returned the same. .For the year 1849, Patchin and Chase return 129 acres of the Robert Wharton, and 91 acres of the George Seheaff. These entries are made upon the land book and treasurer’s book, as also the following entries, which were made by direction of Patchin and Chase, viz: after the George Seheaff tract, “only 235 acres left by interferences; 144 acres charged to Z. Poulson;” and after the Robert Wharton tract, “only 179 acres left by interferences; 50 acres seated to C. Gregory, in 1849.” In addition to the line crossing the Robert Wharton tract, and leaving out 144 acres, there is another line crosses the tract at about 30 perches therefrom, which, if taken as the line of M‘Oormick’s tract, would leave 179 acres in the Wharton tract. Chase cut a number of timber trees between these two lines, and also on further towards the Little Clearfield Creek, on the M‘Cormick surveys, for which alleged trespass this action is brought. After the plaintiff had shown title, possession, payment of taxes, and damages sustained, the defendant produced warrant, survey and patent to Richard Peters, for the Robert Wharton and George Seheaff tracts, but no title in himself. The defendant controverted the validity of the title by treasurer’s sale. He also proved that, in 1850, one day before the two years expired from the sale to the plaintiff in 1848, Daniel Rowman and another of the heirs of Jacob Rowman, who claimed the tract, went to the treasurer’s office in Clearfield, and paid into the treasury of the county $53.53, the amount necessary to redeem the George and Margaret M‘Cormick 600 acres, and took from the officer a regular and formal redemption receipt. That on the following day, at the instigation of the plaintiff, Isaac Thompson, they returned to the treasury, lifted their money, under the protest of the officer, and destroyed the redemption receipt.</p> <p>Defendant offered the assessor’s book of 1844, of Jordan township, and to prove by the witness, H. P. Thompson, that he made the entry of the two M'Cormick tracts in that book, and how he did it, and that he was clerk to the commissioners at the time.</p> <p>Objected to by plaintiff, that Thompson is not now connected with the commissioner’s office or clerk, and cannot testify. That parol evidence cannot be introduced to destroy the record.</p> <p>The court, Burnside, J., overruled the objection and received the evidence, which is the subject of the first assignment of error.</p> <p>Daniel Bowman (one of the heirs of Jacob Bowman,) being produced on the part of the defendant, the plaintiff objected to the witness being sworn, on account of interest, he having executed no release of his interest in this land until after suit brought. Objection overruled, which is the subject of the' second assignment of error.</p> <p>The court charged the jury as follows: £ £ The plaintiff has shown no such assessment as is required under our acts of Assembly to warrant a sale. The land being seated could not be sold for taxes. It is not necessary for us to comment on the conduct of the plaintiff, in procuring the bona fide holder of the land to ask for the return of the redemption money which he had paid, for neither in law nor equity has he such a claim as a court of justice would for a moment recognize, to the land in controversy. Your verdict must be for the defendant.”</p> <p>The charge is the subject of the third, fourth, fifth and sixth assignments of error.</p>

<p>1. Upon a note made by H. to tbe order of R., the indorsement of S., in blank, does not impose upon him the liabilities, either of indorser or guarantor, to the payee of the note.</p>

Appeal, by Polly Bechtel, from the decree of the Court of Common Pleas of Berks county, distributing the proceeds of the real estate of her husband, George S. Bechtel. The facts of the case appear in the following report of A. L. Hennershotz, Esq., commissioner:— “ It appeared before the commissioner, that Gerhard S. Bechtel left the State some time in the spring, 1857, and has not been here since. Whether he left with the intention of remaining away was not made to appear.

<p>Error to the Court of Common Pleas of Berks county.</p>

On the 18th day of December, 1855, Benjamin Snodgrass and others, defendants in error, commenced proceedings in equity against the plaintiff in error, in the Court of Common Pleas of Cumberland.county, to charge him as a partner in the firm of Benjamin Snodgrass & Co., to which respondent answered, denying the partnership. On the same day this suit was commenced, in the same court, by the said Snodgrass & Co., for goods sold to said Rheem.

<p>Appeal by William Carpenter, executor, &c., of Israel Carpenter, deceased, from the decree of the Court of Common Pleas •of Lancaster county, confirming the report of the auditor, appointed to report upon the exceptions filed to the account of Israel Carpenter, Trustee of Henry Rogers, and Sarah B. Rogers his wife, exhibited by William Carpenter, executor of said Israel Carpenter, deceased.</p> <p>On the 30th of October, A. D. 1840, Henry Rogers, and Sarah B. Rogers his wife, assigned to Israel Carpenter, as trustee, the share of the said Sarah B. Rogers, in a certain fund, charged upon certain real estate in Lancaster county. The share of the said Sarah, in the said fund, amounts to ten thousand dollars, payable, at the death of her mother, Dorothy Brien, who is still living. The object of the trust, was to secure the payment to certain creditors of the said Henry Rogers, of the several amounts of their debts, which were divided into two classes; those of the first class, were directed to be first paid in full, and the balance to be appropriated to the payment of those of the second class. The assignment provided, that the trustee should collect, receive, and release for the assigned fund, forthwith after the death of the said Dorothy Brien, or sell and dispose of, and assign the same, as soon as conveniently and advantageously could be done in the meantime. It contained also, this further provision and trust: “that the said trustee shall have full power and authority, to borrow and raise at any time or times, such sum or sums of money, as shall be necessary for the payment of the first class of debts aforesaid, upon the hereby assigned estate, right, and interest, and upon the credit thereof, by assigning or transferring the same, or such part thereof, as shall be requisite in security for such loan or loans, until the hereby assigned estate shall become available as aforesaid.”</p> <p>Israel Carpenter, the trustee, paid off, out of his own estate, the whole of the debts of the first class. This he did, as appellant contends, in accordance with the provisions of the deed, advancing the money himself, instead of borrowing from others; and in pursuance of an arrangement, as is alleged, by which he was to become entitled to compound the interest, at the end of every three years, as long as Mrs. Brien lived. The trustee made several attempts to raise money on the trust fund, but was unsuccessful.</p> <p>On the 9th of February, 1846, he exhibited his account of these advances, in the Court of Common Pleas of Lancaster county, resulting in a balance in his favor of $2096.57; which account was duly confirmed by the said court, on the 19th day of March, !846.</p> <p>Israel Carpenter, Esq., the trustee, having died in June, 1851, and no trustee having been appointed in his place, William Carpenter, his executor, on the 27th of January, 1857, exhibited the account of the said trust, claiming credit for the balance of • $2096.57, due his testator on the former account, and also interest on said balance from March 16th, 1846, compounding the said interest at rests of every three years, showing a balance due the estate of said trustee, out of the assigned fund, of $3879.09.</p> <p>Upon exceptions filed to this account, by E. C. Reigart, who claims as assignee and representative of creditors of the second class, the auditor appointed by the court, decided that Israel Carpenter’s estate, was entitled only to simple interest on the amounts advanced by him, and that there was no occasion for filing any account. He, therefore, dismissed the account, and directed the accountant to pay all the expenses incurred in the exhibition of the account, as well as the expenses of the audit. His report having been excepted to, was on the 12th day of January, 1858, confirmed by the court, from which decree of confirmation this appeal is taken.</p> <p>[Carpenter’s Appeal.]</p>

<p>Error to the Court of Common Pleas of Franklin county.</p>

August 29, 1855, defendant was arraigned, and pleaded “not guilty, et de hoe,” &c., to the following bill of indictment. “ Dauphin county, ss. August Sessions, 1855.

<p>1. In actions of slander, arbitrators and juries are not restricted as to costs ; where they find damages under forty shillings, they may find twenty cents damages, and fall costs, or they may find that each party pay half of all the costs.</p>

<p>1. An offer by an applicant for the benefit of the insolvent laws, in open court, to surrender himself, and afterwards on the same day going to and remaining in prison, operated as a discharge of his surety, and his subsequent release from prison did not revive the liability of the surety.</p> <p>2. The court can order an applicant for the benefit of the insolvent law into custody, only when they find reason to believe him guilty of fraud.</p>

<p>1. Under the Act of 14th June, 1836, a stranger, who has no interest in a corporation, except that which is common to every citizen, cannot sue out a writ of quo warranto, to enforce a forfeiture .of its charter.</p> <p>2. None but an authorized agent of the Commonwealth, can sue out a writ of quo warranto, to enforce the forfeiture of a charter.</p> <p>3. A creditor of a bank, who has an action at law pending for the recovery of his debt, cannot maintain an information, in the name of the Commonwealth, to enforce a forfeiture of the charter of the bank.</p> <p>4. The Act of 17th March, 1853, P. L. 685, has not enlarged the rights of private parties to writs of quo warranto.</p>

<p>Error to the District Court of Philadelphia.</p> <p>Trover for a quantity of wool.</p> <p>Moss & Pur don, of Buenos Ayres, in South America, having funds in their hands belonging to the plaintiff, invested them for him in twenty-five hales of washed wool, which they shipped to defendants, for him, August 10, 1848. The wool arrived in New York about the beginning of November, 1848.</p> <p>There had previously been disputes between plaintiff and defendants, as to the state of their accounts, defendants claiming of plaintiff a balance of $994.09, which claim was denied -by plaintiff. On the arrival of the wool, the defendants informed plaintiff that if he did not pay this claim, they would sell the wool, and reimburse themselves. The plaintiff, thereupon, in the beginning of December, 1848, and before this suit was brought, sent to defendants, and demanded the wool, informing them at the same time, that he was prepared to pay the freight and expenses on it. Defendants, however, refused to deliver it, and said that the matter was in the hands of their counsel. They made'no claim for any freight or expenses, nor did the plaintiff know the amount of the same, nor did it appear that any had been paid by them.</p> <p>On the trial, the plaintiff proved property in the wool, with the demand and refusal above stated. He also gave in evidence, an account received from defendants, showing that the claim above referred to was partly a balance of cash, and the remainder a balance of an advance, under an agreement dated February 5, 1845, upon a shipment to Montevideo and Buenos Ayres, the proceeds- of which were to be sent to defendants, but which did not appear to be in any way connected with the wool, and which was, in fact, a separate and distinct transaction. Plaintiff also showed that the wool was worth from $2000 to $3000. It also appeared, that on December 29, 1848, defendants sold the wool at auction.</p> <p>Plaintiff having closed his case, the judge, on motion of defendants’ counsel, entered a judgment of nonsuit. Plaintiff then moved the court in bane to set aside said judgment of non-suit, and filed the following reasons therefor:—</p> <p>1. Because the plaintiff proved property in the goods, for the conversion of which the aetion was brought'; that they were in defendants’ possession; and that before the suit was brought, defendants positively and absolutely refused to deliver them to plaintiff, although he was willing and offered to pay the defendants the freight and expenses on the goods.</p> <p>2. Because the plaintiff proved a conversion of said goods by defendants, and their value at the time of conversion.</p> <p>The court, however, refused to take off the nonsuit, to which plaintiff exeepted, and the court sealed a bill of exceptions, according to the. practice under the Act of Assembly, whereupon, plaintiff took this writ, and assigned the following errors:</p> <p>1. The judge who tided the cause, erred in nonsuiting the plaintiff..</p> <p>2. The court below, in banc, erred in refusing to set aside said nonsuit.</p>

<p>Error to the Court of Common Pleas of Wyoming county.</p>

<p>Appeal from tbe decree of the Orphans’ Court of Philadelphia.</p>

<p>1. Points not raised and passed upon in the court below, are not open for discussion in this court.</p> <p>2. Where there were two leases, the .first of coal mines, and the second of the miners’ houses, on a certain tract, the last of which, by its express terms, was made part and parcel of the first, the two leases constitute but one entire demise.</p> <p>3. Miners’ houses are ordinary and proper appurtenants to coal mines, and when they are on the premises, and included in the'lease, they constitute part of the estate, and all the remedies of landlord and tenant attach to them.</p>

<p>1. A judgment in foreign attachment, being obtained without actual notice to the debtor, the debt is not conclusively established.</p> <p>2. In foreign attachment, the plaintiff’s whole claim against the fund in the hands of the garnishee, may be defeated by entering bail to the action.</p> <p>3. In foreign attachment, bail may be entered by the garnishee at any time before satisfaction acknowledged, or even by a fourth person who may be interested as assignee of the debt owing by the garnishee to the defendant.</p> <p>4. A recovery by a plaintiff against a bank, as a garnishee of the defendant, a depositor creditor of the bank, does not give the plaintiff the rights of a depositor to claim under an assignment by the bank, for the benefit of “persons to whom the bank was indebted as a depositor.”</p>

<p>1. The Statute 13 Edward I., chap. 31, which gives a bill of exceptions where a party is “ impleaded,” does not extend to the opinion of the court, in receiving or rejecting evidence upon a motion for summary relief.</p> <p>2. If an entry of satisfaction be made upon the record by mistake, by fraud, or by falsely personating the plaintiff, the court where the record is, has an undoubted right, upon proof of the facts, on notice to the parties, to strike off such improper entry, and such decision is not subject to review on a writ of error.</p>

<p>Error, to the Court of Common Pleas of Susquehanna county.</p>

<p>’ In Equity. Appeal by Levi Knowles from tbe decree of tbe Court of Common Pleas of Philadelphia.</p> <p>Tbe facts of tbe case fully appear in tbe opinion of tbe court.</p>

<p>Error to the District Court of Philadelphia.</p> <p>The principle- decided may be clearly understood from the opinion of the court, without a statement of facts.</p>

<p>Error to the Court of Common Pleas of Philadelphia county.</p> <p>On the 5th of February, 1853, Franklin Butler made complaint on oath before Aldermen George Geyer and Robert Buckman, that James Peters, being seised of certain premises,' had demised them to Lewis Debozear, on the 1st of November, 1851, for one year thereafter; that during that year Peters sold the premises to the complainant; that after the expiration of the year, he had given three months’ notice to Debozear, and that the notice had not been complied with; that he still held over, &c. A summons was issued.</p> <p>At the time designated in the process, the parties appeared before the aldermen and jury; Debozear made allegation under oath, “ that the title to the lands and tenements in question, in said complaint, and the proceeding thereupon instituted by and before the said aldermen, is disputed and claimed by some other person than the said Franklin Butler, or the said James Peters, (to wit, by this deponent, Lewis Debozear,) in virtue of a right accrued since the commencement of the lease or demise made to him by said Peters, and under, and by a certain agreement in writing by said Peters duly subscribed, wherein and whereby he, the said Peters, sold the said premises to deponent, with an understanding that the deed therefor should be afterwards made upon the performance of certain matters ; this deponent hath well and truly kept his agreements in the premises, and-offered to complete the transaction, but the said James Peters hath unjustly and fraudulently refused to execute a deed for said premises to this deponent, and covinously executed a deed therefor to said Butler, upon a pretended consideration, with a design to delay, and defraud deponent out of the right to, and possession of the said premises, and these proceedings are instituted, as deponent verily believes, in furtherance of said unlawful design.” And prays that in accordance with the Act of Assembly of 21st March, 1772, and the laws of this Commonwealth, the said justices shall forbear to give judgment in favor of the said complainant, and shall stay proceedings in the matter of said complaint, &c., hereby, however, not in any manner conceding that the statements of the complainant in his said complaint set forth, are true or correctly stated.</p> <p>The aldermen disregarded the application, and rendered judgment for the complainant, whereupon the defendant removed the proceedings to the Court of Common Pleas of Philadelphia, by certiorari, which court, after argument, delivered the following opinion, and dismissed the certiorari.</p> <p>“ Upon the hearing of a complaint before two aldermen, made by the plaintiff, assignee of the former landlord, against the defendant, his tenant, to obtain possession of the demised premises, the lease having expired, the defendant presented his own affidavit, and offered to enter into a recognizance under the provisions of the 13th section of the Act of 1772. The affidavit avers that the title to the lands and tenements in question, is disputed and claimed by him, (the said tenant,) in virtue of a right accrued since the commencement of the lease, under a certain agreement made between James Peters, his former landlord, and himself, by which the said premises were sold to him, that he had performed his part of the said agreement, but that Peters had refused to convey the premises to him, and had conveyed them, by deed, to the present plaintiff. The question is, whether the affidavit so presented is sufficient to require the aldermen to forbear to give judgment. The well-sefet]ed rhi<y?Sg that a person in possession of premises, shall not be p«mitteír to call in question the title of the landlord under whom He must first give up the possession, and if he have a better title, he may recover in another suit. Thompson v. Clark, 6 Binn. 62; 7 Barr, 62; 6 Id. 163.</p> <p>“ The Act of 1772, appears to recognize this established rule, as it provides that, if the tenant.shall allege that the title is disputed and claimed by some other person or persons whom he shall name, such other person appearing, making oath, and becoming bound by recognizance, in the manner therein specified, the justices shall forbear to give judgment. It is also required that the right or title of such claimant shall have accrued since the commencement of the lease, by descent, deed, or from or under the last will of the lessor.</p> <p>“ It was not the intention of the act to supersede the common law action of ejectment, where a tenant claimed adversely to his landlord’s title. This would be an encouragement to a fraudulent tenant to acquire and set up pretended titles, in order to retain his possession. Where the original landlord or his assigns claim the possession upon the expiration of the lease, and denies the existence of any conveyance made to the tenant since the commencement of the lease; the tenant certainly cannot claim the right to an appeal to court in this summary proceeding, and therein to try, in effect, his own title as plaintiff in a summary ejectment, while he continues to hold the possession of the premises in dispute. In Cunningham v. Gardner, 4 W. & S. 120, it is said, that the law only gives the appeal to a third person, claiming by descent, or purchase, of devise from the lessor since the date of the lease; and although the judge delivering the opinion, adds, ‘ I will not say that a tenant who has purchased from his lessor, or to whom the title has descended or been devised, can be turned out under this law ; but only in such case can a tenant withdraw the cause. It could, never have been intended that the tenant, by an affidavit stating the existence of a contract, merely, for the purchase of the premises, which contract he further states, the landlord refuses to perform, and denies that any right under it has accrued to the tenant, should be authorized to retain the .possession until he can test the validity of such contract. The law seems carefully to provide against such a course, and we think the aldermen properly disregarded the affidavit.”</p> <p>Certiorari dismissed.</p> <p>The dismissing of the exceptions and certiorari, and affirming the judgment of the aldermen, is the error assigned.</p>

Error, to the Court of Common Pleas of Wayne county. Ejectment by defendants in error, for sixty acres of land in Clinton township. The .case was arbitrated, and award for plaintiffs for the land in controversy, and $100, as mesne profits, filed January 28, 1853. February 15, 1853, defendant appealed from said award, paid the costs, and entered into a recognizance himself, and Myron Jakway as surety for such appeal, but exceptional in point of form under the law.

<p>Error to the Court of Common Pleas of Susquehanna county.</p> <p>In 1852, Amos Baker, the defendant in error in this case, brought two actions of trover against Newton Lane, one of the plaintiffs in error, and failed, and judgment-was entered against him for costs. Lane caused executions to be issued for the costs, on each of these judgments, and placed them in the hands of Thomas Jackson, the. other plaintiff in error, who, by Lane’s direction, levied upon and sold Baker’s last cow, and he brought this action of trespass de bonis asportatis against Lane and Jackson, for taking and selling Ms last cow, the right to do which was the only question in the case. The court, Wilmot, J., instructed the jury that the cow levied upon and sold, was exempt from execution, and that the plaintiff was entitled to recover, and this is assigned for error.</p>

<p>1. Where acontract under seal is altered by parol,it all becomes parol, buta mere additional parol agreement, not changing or modifying the one under seal, will not have this effect, nor will a stipulation releasing or waiving part performance.</p> <p>2. Where a sealed contract is followed by one not under seal, relative to the same subject-matter, if both can be executed together, the one is not substituted for the other.</p> <p>3. Where there is in fact a substitution of a contract not under seal, for one that is under seal, the substitution operates as an abandonment of the sealed contract, exceptas matter of reference for the terms of the parol contract which has supplanted it.</p> <p>; 4. Where there was a sealed contract to complete a house at $890, and after-wards an additional written contract, unsealed, to put a slate roof on it, enlarging the price to $925, the sealed contract was abandoned, except as matter of reference.</p>

<p>1.-Where goods are purchased at a private sale, it must be shown that the vendee took and kept possession of them, or the contract is conclusively presumed to be fraudulent as against creditors of the vendor..</p> <p>' 2. Where one buys personal property at a public judicial sale, he may leave it with the defendant in the execution, without making it liable to be taken under another execution.</p> <p>3. Where one buys cloth at a sheriff's sale, and leaves it with the defendant, a tailor, to be made up for his, the defendant’s, own profit, he accounting to the purchasers only for the price of the cloth, h is a sale to the defendants, and it is liable to levy and sale, on a subsequent execution.</p> <p>i. What an agent says about the business of his principal when he is.engaged in doing it. may always be heard, not as mere declarations, but as explaining the character and quality of the act.</p> <p>5. Where one is buying for himself, but falsely declares that his purchase shall enure to the benefit of the debtor, or his family, and this is a mere trick to prevent competition, he acquires no title.</p> <p>6. For a bidder to say that he intends to give the property' purchased to the debtor, or let him redeem it, when such is really his intention, is no fraud.</p> <p>7. To make a purchase void, it must be proved that the property was obtained at an under value, and by means of a false representation.</p>

<p>1. An affidavit of defence by one defendant, that he had reason to believe that his co-defendant, who makes no affidavit of defence, had paid the debt, and that he concealed it from him, is not sufficient to prevent judgment for want of a sufficient affidavit of defence.</p> <p>2. Where two are jointly bound, one in fact the principal debtor, the other a surety, the surety may pay the debt and take an equitable assignment, and keep it on foot and collect it from the principal debtor.</p>

<p>X. The Supreme Court has authority to remove, for the purpose of trial, eases pending and undetermined iu the courts of criminal jurisdiction for the city of Philadelphia.</p> <p>2. The writ of certiorari is the appropriate writ for the removal of a cause before judgment, and the writ of error is the writ which removes it afterwards.</p> <p>3. By the regular course of proceeding, criminal cases pending in the Supreme Court, ought to be brought to issue before the process issues to summon jurors to try them.</p> <p>4. The power to render judgment and award execution, involves in it the power to take the preliminary steps which lead to that result.</p> <p>5. The removal of a criminal case from the courts of Philadelphia to the Supreme Court, for trial, can take place only where specially allowed by the judges of the Supreme Court, or one of them.</p> <p>6. Where there is an irregularity in the issuing of the writ, the parties may waive objection to it, by going to trial or putting the case down for trial, or by any other proceeding in the Supreme Court which acknowledges by implication that the cause is regularly there.</p> <p>7. After a trial on the merits and an acquittal, it is too late to quash the writ of removal for any other cause than a want of jurisdiction in the tribunal that issued it.</p>

One of the commissioners of Berks county assumed to sell, but did not deliver, a quantity of iron belonging to the county, to Cottrell, who sold it to Treichler, the defendant below, who took possession of it under the contract of purchase from Cottrell. To recover damages for this trespass, this action was brought; and verdict for plaintiff.

<p>1. A lease from the 1st day of April, for one year, expires on the 31st day of the succeeding March.</p> <p>2. Plaintiff being, with ten others, a co-lessor, is not entitled to recover one-eleventh of the rent in an action in his own name. The contract being joint, the remedy must follow the contract.</p>

<p>Error to tbe Court of Common Pleas of Bradford county.</p>

<p>1. The defendant having put in a general demurrer to the plaintiff’s narr., which consists of several counts, the plaintiff is entitled to judgment, if any one of them is sufficient in law to support the action, even though some be defective.</p> <p>2. The words, charging that the plaintiff and one J. T. V. were caught together in the packing-room, no special damage being charged, are not actionable.</p> <p>3. The words, laid in the .declaration, that plaintiff and one J. T. V., were “ caught together” in the packing-room, with an innuendo of fornication, are actionable.</p> <p>4. The office of an innuendo in pleading, is to explain matter already expressed, words doubtful, or double in their meaning, or which do not of themselves show the slander intended.</p>

<p>Appeal from the Orphans’ Court of Montgomery county.</p> <p>For a statement of the facts of the case, the reader is referred to Styer v. Frease, 3 Har. 339, and Styer’s Appeal, 9 Id. 89; cases arising on, and involving the interpretation of the will of David Styer, deceased, being the same, the construction of which was at issue in this case.</p>

<p>Certiorari to the Court of Quarter Sessions of Montgomery county.</p>

<p>1. If parties agree to try under the compulsory arbitration law, or before a ■jury, matters which could not be so determined without mutual consent, the award or the verdict is not bad for that reason.</p> <p>2. Where parties submit a pending cause to referees for final decision, they may stipulate to let them decide at the same time other disputes, outside of the cause.'</p> <p>3. The reference of a cause which would be otherwise good, under the 6th section of the Act of 1836, is not taken out of that act by an agreement to permit other matters to be considered by the same referees at the same time.</p>

<p>Error, to tbe District Court of Philadelphia.</p>

<p>Appeal by Jacob Bredlinger and others, from the decree of the Orphans’ Court of Montgomery county.</p>

<p>Error, to the District Court for the city and county of Philadelphia.</p>

<p>1. Plaintiff, through defendants, shipped a cargo of boots, &c., to Buenos Ayres and Montevideo, upon which defendants advanced him $1000. Subsequently, plaintiff shipped other cargoes to the same consignees. If the wool in dispute, was the proceeds exclusively of the first cargo, the defendants had a right to retain it until their advances were paid. If purchased exclusively with the proceeds of the subsequent shipments, the defendants had no right to retain it.</p> <p>2. When goods, specifically pledged for a debt, become confused with other goods of the debtor, the creditors’, lien is lost, if the confusion is created by the creditor himself, and is extended to the whole mass, when the intermixture is made by the owner.</p> <p>3. When the meaning of a written document is disputed, its interpretation is a.matter of law for the court, but not so when it is offered as evidence of a fact, or when it is to be considered in connexion with the situation of the parties, or in reference to other facts proved by parol.</p> <p>4. To entitle a consignee of goods to commissions, he must have a contract with, the owner, either express or implied.</p>

<p><Jertiorari to the Court of Quarter Sessions of Chester county.</p>

<p>I. Where an insurance company appoint an agent in another city, and agree that he shall receive ten per cent, on all premiums for insurances effected by him on their behalf, and also on all moneys received for sales of shares of the stock of the company, made by him, the agency to be revocable at pleasure, there is no implied authority to the agent to bind the company for the rent of an office leased by him.</p>

<p>Error to the District Court of Philadelphia.</p> <p>On the 7th day of October, 1856, judgment was recovered in the Court of Common Pleas of Erie county, by Charles B. Pen-rose, against the Erie Canal Company, for $13,252.99. A writ of jfieri facias was issued on the same day, directed to the sheriff of Erie county, which was, on the 30th day of October, 1856, returned “ nulla hona.” On the 30th of December, 1856, this judgment was transferred to the District Court for the city and county of Philadelphia, upon a transcript of the record of said judgment of the Court of Common Pleas of Erie county. On the 30th day of December, 1856, an attachment-execution was sued out of the said District Court, upon the said judgment, attaching the money of the said company in the hands of Charles M. Reed, the garnishee. It appeared, from the evidence in the case, that the said Charles M. Reed was, at the time of the service of the said attachment, president of the said company. That on the 2d of May, 1853, the treasurer of said company made an arrangement with said Charles M. Reed, to deposit with him the funds of said company for safe keeping. The arrangement was, that an interest account was to be kept by the treasurer with said Charles M. Reed, and at the end of each year the balance of interest was to be charged upon the account of the said Charles M. Reed, in favor of the company. The money so deposited was subject to the draft of the treasurer. At the time of the service of the attachment, Charles M. Reed had in his hands, under the said arrangement with said treasurer, the sum of $93,705.04 of the said company’s money, deposited in the manner before mentioned.</p> <p>At the time of the service of the attachment, Charles M. Reed, the garnishee, was the holder of over-due bonds of the company, to an amount much greater than the amount of money in his hands, which evidences of indebtedness he continued to hold, and claimed to use as a set-off, to prevent a recovery against him by the plaintiff in this case. The money so deposited was received from tolls and water-rents, and was the only means of keeping the company’s canal in repair. The Erie Canal Company was not of sufficient pecuniary ability to pay its debts; its canal was of public utility, and its entire income and means were not sufficient to keep said canal in repair, and to pay more than from two to four per cent, on the interest of the indebtedness of the company. On the 29th December, 1856, and before the service of the said attachment, the board of directors of said company, appropriated all the money belonging to said company, not previously appropriated, to the ordinary expenses of maintaining and keeping said canal,in repair, and the pro rata payment of interest on its debts.</p> <p>On the 9th of April, 1850, the Greneral Assembly of this Com-t, monwealth passed an act, entitled “ An Act to limit and regulate sequestrations in the case of the Erie Canal Company.” Pamphlet Laws, 437. This act was accepted by the stockholders- of the company, in conformity with the provisions of the 6th section thereof, on the 3d day of May, 1850.</p> <p>On the trial, the garnishee requested the court to charge the jul7></p> <p>1. “ That if they believed, from the evidence, that the Erie Canal Company was indebted to Charles M. Reed, the garnishee, by bond or otherwise, on the 30th day of December, A. D. 1856, the date of the service of the attachment, and continued so indebted up to the present time, in a larger sum than he held of the money of the said canal company, the plaintiff could not recover against him as garnishee.'</p> <p>2. “That if they believed, from the evidence, that David McAllaster, Esq., treasurer of the Erie Canal Company, deposited the money of said company, received for toll and water-rents, with Charles M. Reed, the garnishee, for safe keeping, and those moneys were the only means of keeping the company’s canal in repair, and the arrangement between the treasurer and Mr. Reed was an individual matter, with which the Erie Canal Company had nothing to do, the plaintiff could not recover against the garnishee.</p> <p>3. “That if they found, from the evidence, that the Erie Canal Company was an insolvent corporation, and that its canal was of public utility, that its entire income and means were not sufficient to keep said canal in repair, and to pay more than from two to four per cent, per annum on the interest of the indebtedness of said company, such funds were not subject to an execution-attachment in the hands of any person whatever.</p> <p>4. “ That the funds or money of a corporation are not subject to an attachment under the provisions of the Act of the 16th of June, 1836, in the hands of its treasurer, toll collectors, or any of its officers, agents, or employees, in the course of the administration of the business of the object of its creation, therefore, if the jury found that the money in the hands of C. M. Reed, the garnishee, at the time of the service of the attachment and since, was deposited with him by the treasurer, or others authorized, by the treasurer, for safe keeping, and was at all times subject to the check or draft of the treasurer, such money was, in -contemplation of law, in the treasury, and not subject to attachment.</p> <p>5. “That if they believed from the evidence, that the Erie Canal Company was insolvent; that its entire means were derived from tolls and water-rents; that the funds so derived, were not the subject of attachment-execution, in the hands of any person whatsoever, the creditors’ remedy was by sequestration.</p> <p>6. “That if they found, that the board of directors of the Erie Canal Company, on the 29th day of December, 1856, and before the service of the attachment on C. M. Reed, the garnishee, appropriated all the money belonging to said company, (not previously appropriated,) to the ordinary expenses of maintaining and keeping said canal in repair, and for the payment of interest of its debts, tbe said money was not subject to attachment in tbe bands of any person.</p> <p>7. “That under tbe provisions of tbe Act of Assembly, entitled ‘‘ An act to limit and regulate sequestrations, in the case of the Erie Canal Company,’ approved tbe 9th day of April, 1850, duly accepted tbe 3d day of May, 1850, at a general meeting of tbe stockholders of tbe said company, according to tbe provisions of the said last mentioned Act of Assembly, no such attachment, as that issued in tbe present case, would lie.”</p> <p>Tbe court refused to so charge tbe jury, and directed them to find a verdict for tbe said plaintiff, for the sum of $13,252.99, and reserved tbe points of law, upon which the said counsel for said garnishee, bad requested that tbe said jury should be charged, for the opinion of the court in banc.</p> <p>Tbe jury rendered a verdict for plaintiff, and on tbe 14th day of May, 1858, tbe counsel for tbe garnishee, moved tbe court for a rule for a new trial, for tbe reason that they bad misdirected tbe jury, in answering defendants’ points in tbe negative.</p> <p>Upon tbe bearing of tbe rule, tbe court, Sharswood, Stroud, and Hare, J. J., refused to grant a new trial, and decided tbe following points:</p> <p>1. When tbe treasurer of a corporation, deposits tbe funds with a banker, who pays interest for its use, be is tbe debtor of tbe corporation, and not of tbe treasurer.</p> <p>2. Tbe money of a corporation, in tbe safekeeping of its cashier, treasurer, or other officer, is not liable to attachment.</p> <p>3. Money of a corporation, in tbe bands of tbe treasurer’s banker, who pays interest for its use, is subject to be attached.</p> <p>4. Tbe funds of an insolvent, as well as a solvent corporation, are liable to be attached.</p> <p>5. A creditor of a corporation, who, as banker of tbe treasurer, receives tbe funds under an agreement to pay tbe same on tbe treasurer’s checks, cannot set off tbe indebtedness due him, to defeat another creditor who has attached such money in bis bands.</p> <p>6. An attachment places a judgment-creditor in tbe shoes of bis debtor, with all bis rights and privileges, just as be stood at tbe date of tbe attachment.</p> <p>Opinion of tbe District Court on tbe motion for a new trial.</p> <p>“Per Curiam. — This is an attachment-execution, issued on a judgment against tbe Erie Canal Company, and served on Charles M. Reed. From tbe answers of tbe garnishee, and tbe evidence —all documentary — produced on the trial, it appears that David McAllaster, tbe treasurer of tbe company of defendants, keeps an account with Mr. Reed, depositing his money with him, and tbe collectors of tolls also paying their money to Mr. Reed, to the credit of the account of the treasurer. The Erie Canal Company is insolvent, unable to pay the principal, or even interest, of its bonds which have matured. The most it has been able to do, after providing for current expenses and necessary repairs, has been to pay three per cent, to its bondholders on account of interest. Mr. Reed is the president of the company; the largest stockholder, and holder of its bonds matured and unpaid, to the amount of $3.00,000, and upwards. The plaintiff’s judgment is for the principal of bonds of the same character.</p> <p>“It will be best to consider the points of the cause, as they were presented in the able argument of the gentleman from Erie, who appeared on behalf of the garnishee. It exhausted all that could be said on the subject.</p> <p>“ It was contended, in the first place, that Gen. Reed was the debtor of David McAllaster, not of the Erie Canal Company. But is this so ? If sued by the company, must not a recovery be had against the garnishee; could he set off a debt due by McAllaster; if McAllaster were superseded an'd a new treasurer appointed, with notice to Gen. Reed, could he any longer honor with safety Mr. McAllaster’s checks ? It is answer enough to this question, to say, that the money deposited with Mr. Reed is the money of the company, and he knows it. The account is kept in the name of David M£Allaster, treasurer, and his receipts show that he received the money for the uses and purposes of the company, and to be accounted for' to them. There is nothing else in this point. It is the ordinary case of a debt due to a corporation.</p> <p>“ The second ground taken, is, that the fund in Gen. Reed’s hands,, is simply money in the treasury, and not, therefore, liable to an attachment. It may be conceded, that the money of a corporation, in the safe keeping of its cashier, treasurer, or other officers, is not liable to attachment. Money in the cashier’s pocket or strong box, is in the pocket or strong box of the corporation. He is but a servant, not a debtor of the corporation. Were he robbed, he could plead the loss, without negligence on his part, in discharge. But suppose Gen. Reed was robbed. Does he say, that he kept the money of the company in a box or bag by itself, distinguished from his own, so that if lost by fire or robbery he would be discharged ? He could no more plead such discharge, than a debtor could plead any calamity or loss he had met with, to excuse the payment of his debts. These funds he held as a banker, mixed with his own, not as the servant of the company, or of the treasurer. It will make this point stronger — though strong enough without it — to add, that for more than enough to satisfy the plaintiff’s claim, Gen. Reed was under contract to pay interest to the company.</p> <p>“ The third point was that an attachment will not lie against an insolvent corporation, or perhaps, as it was modified, against an insolvent corporation entrusted with the construction and management of some public highway or improvement. But where is the authority for this position to be found ? No distinction, so far as attachments are concerned, is made between improvement and other corporations, although in the process of sequestration, such a distinction is made, and although in the process of attachment, distinction is made between municipal and other corporations. The reference in the Act of 1845, about attachments, to the Act of 1836, is too vague to justify us in incorporating the proviso as to sequestration in the process of attachment. The reference is more fit to those sections of the Act of 1836, which regulate attachments; nor do the special acts passed in reference to sequestration against this company, at all reach this process.</p> <p>“I have thus disposed of all these points but one, which was considered by the counsel under the first head, that Gen. Reed, instead of being the debtor, was in fact the creditor of the defendant, to an amount much larger that all the funds in his hands. The answer is, that there is fairly to be implied from the relation of banker to the company, as well as the tenor of his receipts, that he was not to plead a set-off, but to account for and pay over whatever money thus came to his hands as banker. Such a contract, express or implied, precludes his set-off. Hennis v. Page, 3 Wh. 275; Bank of the United States v. McAllaster, 9 Barr, 475. It has been urged, however, that though a contract not to defalcate against the company, may be inferred, there is nothing from which a contract not to avail himself of his set-off against a creditor coming in on the fund, by process in invitum, and having no better equity to be paid than himself, can be implied. But how is this distinction to be practically carried out ? It is clear that the company could demand the debt of Gen. Reed, for any purpose, and that he could not take defence, as to them, that they meant with the money to pay plaintiff. The attachment places the judgment-creditor in the shoes of his debtor, with all his rights and privileges, just as he stood at the date of the attachment. It is, to all intents and purposes, a statute assignment of the debt by the defendant in the execution to the plaintiff. In re Baldwin’s Estate, 4 Barr, 248.</p> <p>“Judgment for plaintiff.”</p> <p>To this judgment defendants excepted, and assigned the same for error.</p>

<p>1. The law gives to the public the right of enjoying the Sabbath as a day of rest and of religious exercises, free and clear of all disturbance from merely unnecessary and unallowed worldly enployment; and where the law is contravened in such a manner as to disturb that enjoyment, by noise or disturbance accompanying it, or incident to it, it is a breach of the peace.</p> <p>2. The running of cars on passenger railroads on Sunday, by reason of the noise accompanying them, is a disturbance of the public peace of the Sabbath, and the rights of worship and of rest; and the drivers of such cars may be arrested, and held for a breach of the peace.</p> <p>3. Driving a public conveyance, for hire, on Sunday, is a violation of the Act of Assembly, of 22d April, 1794, inflicting the penalty of tour dollars for performing worldly employment on the “ Lord’s day, commonly called Sunday.” Commonwealth v. Johnson, 10 Harris, 102.</p>

<p>1. A power of sale, given to trustees in a deed of trust, in the nature of a mortgage, is as irrevocable as an ordinary power, coupled with an interest, and the mortgagor cannot prevent the exercise of the authority by subsequent grants, nor can his creditors be allowed to defeat it by subsequent judgments.</p> <p>2. A purchaser at a sale, under a power in a deed of trust, takes a title divested of all incumbrances.</p>

On the 12th of October, 1850, William Parkinson filed a libel in the office of the prothonotary of the District Court, under the Act of 13th June, 1836, authorizing attachments against ships and vessels, for work done, and materials furnished, in building or repairing the same, in which he claimed $140, amount due by Messrs.