Volume 2 — Miles's Pennsylvania Reports

THIS action was brought to D. T. ’35, 334. Plaintiff filed a copy of an instrument of writing executed by the defendant (which follows) under the act of 28th March 1835, and entered judgment for want of an affidavit of defence. Defendant obtained this rule to show cause why the judgment should not be set aside.

THIS was a scire facias against the bail to the action, after a return of N. E. Í. issued on a Friday, returnable on the succeeding Monday, which was the return day of the term. The defendant obtained this rule.

<p> Verdict subject to opinion of court. </p> <p>A, brings replevin against B., who avows, &c. Distress for rent claimed, §200. Verdict for §100. The jurisdiction of this court is not ousted, and plaintiff is entitled to costs.</p>

IN this case a rule for a commission had been entered by defendants to take the testimony of certain witnesses on their behalf, on interrogatories filed, in the state of New York. The plaintiffs filed cross interrogatories, and the commission was issued in the usual form. The commissioners executed the commission, and directed it to the defendants’ counsel, who received it, but who did not file it of record.

<p>THE original action against Larned was commenced by capias returnable to June term, 1838. The sheriff made return “ cepi corpus and bail bondSamuel F. Bradford in due time became special bail.</p> <p>On the 2d July, 1836, the plaintiff obtained a judgment; he subsequently issued writs offieri facias and capias ad satisfacien-dum to the September return day of September term, 1838; the fieri facias was returned “ nulla bona,” and the capias ad satis-faciendum “ N. E. I.”</p> <p>A scire facias on the recognizance of special bail was issued to the October return day of September term, 1836. On the 3d day of October, 1836, a rule was obtained to show cause why an exoneretur should not be entered on the bailpiece, on (he ground that on the 26th day of September, 1836, the defendant in the original suit, Larned, was discharged under the insolvent laws of the District of Columbia.</p> <p>On the return of the rule, it was conceded that the debt from Larned to Mount was contracted in the District of Columbia, where they both resided at the time, and where they have continued to reside ever since, Larned having been arrested while upon a visit to Philadelphia. The fact of Larned’s discharge and its character within the District of Columbia was also conceded. (See 5 Binn. 381.)</p> <p>opposed the rule. He referred to the case of Walsh v. Nourse, 5 Binn. 381, decided in 1813, to show that if the debt had been contracted out of the jurisdiction of the District of Columbia, the discharge would not avail in the present case. He also referred to the case of McMakin v. Hamilton, in this court, in May, 1835, to prove that Walsh v. Nourse was still recognised as the law of this court, notwithstanding some intermediate decisions to the contrary referred to in Ingraham on Insolvency, 201.</p> <p>He also referred to the case of Green v. Sarmiento, 3 Wash. C. C. Rep. 17 ; 1 Browne's Rep. Jlpp., for the position that as the judgment in this court was obtained before the discharge in the District of Columbia, the original contract was extinguished, and the case stood as if the contract had originally been made at Philadelphia.</p> <p>referred to the cases of Patton v. Lee, and Adams v. Summers, in this court, in 1826, cited in Ingraham on Insolvency, 200, as showing that Walsh v. Nourse wras not the law of the present day. He also cited Fairchild v. Shivers, 4 Wash. C.C, Rep. 443.</p>

And the plaintiff having moved for a “ scire facias sur suggestion of interpleader” against Samuel Comly, “ The Commonwealth of Pennsylvania to the Sheriff of Philadelphia County, greeting: “ Whereas Chauncey Hoffman, to the use of the Steuben County and Chemung Canal Bank, hath impleaded Samuel McBride and Andrew McBride, trading as Samuel McBride and Company, in our District Court for the city and county of Philadelphia, in a certain plea of trespass upon the case, &¿c,;…

<p>THE plaintiff in this case had issued a summons returnable the first Monday of September, 1836. Under the act of 28th March, 1835, he regularly filed a copy of his book entries. The defendant in due time filed an affidavit of defence, according to the provisions of the act, but the same was defective in not disclosing a defence. Of this the plaintiff took no advantage at the time by moving for judgment, but filed a narr. and asked for and obtained from the defendant a plea, which was filed. Afterwards, on the 12th of Nov. 1836, the plaintiff obtained this rule to show cause why judgment should not be entered for the plaintiff, for want of a sufficient affidavit of defence. On the hearing of the rule,</p> <p>contended that by the terms of the second section of the act of 28th March, 1835, the plaintiff was entitled to judgment. (Stroud's Purd. D. 231.) The act says, that “it shall be lawful for the plaintiff on, or at any time after the third Saturday, &c. on motion, to enter a judgment by default, &c. unless the defendant shall previously have filed an affidavit of defence, stating, Me.”</p> <p>The acceptance of a plea by the plaintiff was a waiver of plaintiff’s right to a judgment under the act.</p>

THIS was a scire facias on a mechanic’s claim, and it was issued on the 20th September, 1838, returnable to the first Monday of October, there being thirteen days to the return day. The claim however had been filed prior to the first day of September, at which time the act of 16th June, 1836. entitled “ An Act relating to the lien of mechanics and others upon buildings” took effect. (Stroud's Purd. tit.

<p> Rule to show cause why the special capias should not he quashed. </p> <p>The 24th section of the act of the 13th June, 1836, relative to the commencement of actions, allowing a special capias to issue after a summons, does not extend to actions instituted before that act went into operation, viz : 1st September, 1836. ..</p>

<p> Rule to show came why the writ and proceedings in partition should not be quashed. </p> <p>Under the act of the 19th April, 1794, the Courts of Common Pleas, and the District Court of the County of Philadelphia, &c., had not jurisdiction of an action of partition, where all the parties took title by descent from one who died intestate, and who was the sole owner of the lands.</p> <p>It seems that the jurisdiction in case of intestacy belonged to the Orphan’s Court.</p> <p>This decision does not extend to the case of parties holding title by descent of an undivided portion of lands, where the co-tenant of the intestate holds by a different title.a</p>

THIS action had been referred, under the act of 1705, to three referees, and the case was still before them, when Jack, for the defendants, moved the court to set aside the reference and restore the case to the trial list, upon the grounds disclosed in the affidavit of Repplier, one of the defendants, which he submitted to the court: stating in substance, that while the case was before the referees, the plaintiff offered one of them as a witness to prove certain matters in…

THIS was an action on a written lease, by plaintiff to defendant, of certain real estate, in which the defendant covenanted to pay a certain rent to the plaintiff in money.

THIS was a scire facias on a mechanic’s claim, brought by Borton the mechanic to the use of Street, to whom he had assigned the claim filed against Streeper, the owner. On the 8th of December, 1836, the plaintiff’s attorney entered a rule to take the depositions of Borton, the nominal plaintiff, before a magistrate.

THIS was a summons in case issued to November return day of September term, 1836. The return day was the 7th day of the month. The return of the sheriff was as follows: “ Summoned by leaving a copy at place of residence. “ October 24, 1836.” The defendant obtained a rule to show cause why the service of the writ should not be set aricle, upon the ground that the sheriff in his return had not sufficiently stated the mat,over in which the service of the writ was made.

THIS was a scire facias on a claim filed under the acts giving a lien to mechanics and material men for their work done and materials furnished.

THIS was a capias ad respondendum issued under the fourth section of the act of 13th June, 1836, relating to the commencement of actions. The plaintiff filed an affidavit, averring merely that “ to the best of his belief the defendant was about to quit the commonwealth.” The defendant obtained this rule to show cause why the capias should not be quashed on the ground that the affidavit was defective.

THE facts of this case were, that a venditioni exponas had issued against one Morton, at the suit of Chew. The real estate of Morton was sold under the writ by the sheriff, and the proceeds of sale were paid into court for distribution. The court appointed an auditor to report distribution, before whom appeared the parties in this case, Rhoads and Hoopes, claiming to be creditors of the fund as the holders of incumbrances.

IN the above case, the following facts appeared. On the 23d of August, 1836, a fieri facias and capias ad satisfaciendum were issued upon the judgment obtained in this case, returnable on the next succeeding return day which was the 5th of September. They were placed, on the same day, in the hands of the sheriff.

IN this case, the rule to show cause prayed for in the petition of the plaintiff, was granted. The facts stated in the petition were verified by the affidavit of the plaintiff..

THIS was an action of debt on a joint and several hand of the defendants conditioned for the payment of 125 dollars. The defendant Cutchens pleaded payment and a set-off; the other defendant pleaded payment and a release.

THIS was a foreign attachment issued against the defendant. A domestic attachment subsequently issued against him, and the plaintiff therein subsequently obtained this rule, on the hearing of which in the domestic attachment, read affidavits stating in substance that defendant had for many years been a resident of the city and county of Philadelphia, prior to January, 1837, when he suddenly disappeared, alleging that he intended to go to Missouri, and that he was absent ten…

THIS was a fieri facias, and under it the defendant’s personal property, to wit, hay and grass, then being on a certain tract of land, were sold, and the proceeds wrere paid into court.

IN this case, judgment for the plaintiff was entered by agreement, dated December 30, 1834, which stipulated that it was “ without stay of execution or appeal.” The case so stood until February 23, 1837, when the plaintiff issued a fieri facias.

THE facts of this case were as follows. A writ of foreign attachment was issued by William Phillips against Coppinger to June term, 1830, which was executed by attaching a debt due by Joseph Sims to Coppinger, and summoning Mr. Sims as garnishee. At the third term of the court, judgment by default, in the usual manner, was granted, and damages, amounting to 2785 dollars, were afterwards duly assessed.

THIS action was brought to September term, 1836, returnable on the October return day. After judgment, defendant entered security for stay of execution for six months. The plaintiff issued a fieri facias to March term, 1837, six months having elapsed counting from the first Monday of September, 1838, but there was not a lapse of that time counting from the return day of the original writ.

THIS was a rule to show cause why plaintiff should not take out of court, the money paid in under an order of sale in this case, on filing a recognizance to restore.

<p>THE facts of this case fully appear in the opinion of Stroud, J.</p> <p>The case was argued by</p>

THIS was a capias ad respondendum brought to March term, 1837. The sheriff took one surety in the bail bond, returned it, and gave notice to the plaintiff, under the 13th section of the act of 13th June, 1836, relating to the commencement of actions. (Stroud’s Purd, tit. Action.) The plaintiff did not except to the bail, but obtained this rule on the sheriff, to show cause why he should not bring in the body. The bond is a nullity.

<p>ACTION brought by Dunton, executor of Delamater, against Elkinton. Defendant pleaded in abatement that Marin us W, Pike w7as a co-executor with Dunton. Whereupon plaintiff moved for leave to add the name of M. W. Pike as a plaintiff.</p> <p>relied on the act of 24th March, 1818, section 7. (Stroud’s Purd. tit, Abatement.)</p> <p>said the language of the act did not apply to this case.</p>

THE following case was stated for the opinion of the court to be considered in the nature of a special verdict, &c. “ The above action of debt is founded upon a replevin bond, taken in an action of replevin founded upon a distress for rent, signed by the defendants above named, a true copy of which is hereto annexed and made part of this case stated. “ It is agreed that the condition of the said bond has not been complied with, and is therefore forfeited, and has been…

<p>THIS was an action brought to June term, 1832. The plaintifi had always resided in the state of New York. The cause was at issue and on the trial list, and the defendant had appealed from an award of arbitrators, before whom he had appeared. The defendant, on filing an affidavit as to the non-residence, obtained this rule to show cause.</p> <p>On the hearing of the rule,</p> <p>relied on the 26th rule of the court, (1 Miles 450,) and on the practice which he said had existed in the courts of this state under similar rules. He cited Tidd's Practice: 2 Dali. 179; 4 Wash, ('. C. Rep, 385.</p>

THIS was a venditioni exponas to September term, 1835, No. 227. The property named in the writ was sold by the sheriff on the 23d September, 1835, it being subject to an annual rent charge. The sheriff’s deed was acknowledged on April 26th, 1836, there having been opposition to the sale, and a motion made to set it aside, which was eventually refused. The purchase money was paid into court, and an auditor was appointed to distribute the same.

THIS was an action brought to September term, 1834. The plaintiffs declared on defendant’s note in their favour, dated at New York, August 3d, 1831, and obtained judgment. The defendant was discharged under the insolvent laws of this state, in Philadelphia, in October, 1833, returning this debt in his petition. The plaintiffs issued a capias ad satisfaciendum to March term. 1837, and the defendant moved to be discharged from arrest on the ground of his discharge.

THIS was an attachment of execution, with a clause in the nature of a scire facias, against Robert Taylor, under the 35th section of the act of 16th June, 1836, relating to executions. The praecipe was to make the writ returnable on the first Monday of June, 1837, but the writ was made out by the prothonotary returnable to the first Monday of April, 1837; being a monthly return day.

THIS was an action brought to March term, 1837. The plaintiff filed his copy, &c. under the act of 28th March, 1835, and on May 20, 1837, took his judgment for want of a sufficient affidavit of defence. On the 10th of May, 1837, a writ de lunático inquirendo against the defendant issued, and commissioners were appointed in the Court of Common Pleas. On May 22, 1837, inquisition was found, declaring the defendant to be non comp, mentis.

THIS was an action brought to Dec. 1836, 259. Judgment was entered for the plaintiff, and the defendant gave security for stay of execution. M. Bancroft was the security, and, before the expiration of the period designated as the stay in the recognizance, having been arrested on a capias ad satisfaciendum, he filed a bond in the Court of Common Pleas, to appear at its next term, to take the benefit of the insolvent laws. (See Stroud’s Purd. tits.

THIS was a writ of scire facias against the defendant as garnishee of William M. English. On the 17th of December, 1836, a writ of foreign attachment was issued by the plaintiff in which William M. English was named defendant. To this the sheriff returned “ attached and summoned Archimides J. Buckner, as garnishee.” March 16,1837, by agreement filed, the defendant in the attachment confessed judgment for the plaintiff in the sum of 486 dollars 50 cents.

THE plaintiff’had brought a suit on this cause of action, by summons, against the defendant to December term, 1835. In October, 1836, on filing an affidavit, the plaintiff issued a special capias ad respondendum against the defendant, and held him to bail.

THIS was a scire facias in a recognizance of bail for stay of execution. After judgment, the defendant pleaded his freehold for a stay of execution against him. Plaintiff issued a fieri facias and this was a rule to set it aside. contended that under the act of the 18th June, 1836, relating to executions, (Stroud’s Purd. lit. Executions,) there may be bail, and a cesset execuiio in an action of this kind,

THIS was an action to December term, 1836, No. 153. The plaintiff filed a copy of “ book entries,” under the act of 28th March, 1835, his claim being for a “book debt;” that is to say, for goods sold and delivered. The plaintiff entered judgment for want of an affidavit of defence, whereupon the defendant obtained this rule to show cause.

THIS action was brought to March term, 1834, and there was judgment for the plaintiff at the same term. Fieri facias issued to June term, 1834, returned nulla bona. An attachment of execution against money deposited in bank, issued to June term, 1837. Defendant obtained this rule to show cause why the attachment should not be set aside. Chew, for the rule, said, that the act of 16th June, Í836, sections 1 and 2, (Stroud’s Purd. tit.

THIS was an action of slander. The verdict was for the plaintiff. There were several counts in the declarations. The judge who tried the cause held the words in all the counts, except the third and fourth, not to be actionable. The allegata and probata are stated in the opinion of the court. The defendant moved for a new trial, and assigned a number of reasons, the following of which are only material to be noticed, viz: 1.

THIS was a judgment for 203 dollars. The prothonotary took a recognizance for stay of execution for six instead of nine months, as provided in the act of 16th June, 1836, relating to executions. (Stroud's Purd. tit. Execution.) The six months, had now expired, and the defendant obtained this rule to show cause why the recognizance should not be amended so as to give the defendant the stay of nine months,

<p> Rule on plaintiff to file a statement or declaration, or non. pros. </p> <p>Of the mode and practice, under the 23d section of the act of June 16,1836, relating to mechanics’ liens, where the mechanic or material man has filed a claim, but has issued no scire facias, to compel him at the instance of the owner to proceed, or in default thereof, to suffer judgment of non. pros.</p>

<p>Rule to show cause why the fieri facias should not he set aside, and to open the judgment,</p> <p>A judgment entered against all the obligors in a joint and several bond, by virtue of a warrant of attorney, one of them being dead, is irregular, and will be wholly set aside.</p> <p>The court will not permit the judgment to stand against the survivors.</p>

THE defendant was a female. Judgment had been duly entered against her in an action on a promissory note, dated December 20, 1836. The act of 16th June, 1836, section 4, {Stroud’s Purd. tit.

<p> Demurrer. </p> <p>An action of debt cannot be maintained, upon a judgment obtained against a defendant in foreign attachment, under the act of 1705.a</p>

<p>THIS was an action of replevin brought by Nathaniel Weed, and others, against David Hill and others, for a quantity of dry goods. The plaintiffs declared in the usual manner, and the defendants filed twenty pleas. 1st, Non cep. 2d, 3d, 4th, Property not in plaintiffs, but in third persons, different in each of these pleas. 5th. Property in defendants. The following were the sixth, seventh, and eighth pleas, viz:</p> <p>“ 6. And the said defendants, with the leave of the court, further say, that they come and defend the wrong and injury, when, &c.; and say that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them the said defendants ; because they say that they the said defendants had a lien on the said goods and chattels in the said declaration mentioned, for a large sum of money, to wit, for the sum of seventy dollars, for freight and storage: and this the said defendants are ready to verify; wherefore, they pray judgment and a return of the said goods and chattels to be adjudged to them.”</p> <p>“ 7. And the said defendants, with the leave of the court, further say, that they come and defend the wrong and injury, when, &c,; and say that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them ; because theypsay that the said goods and chattels in the declaration mentioned, theretofore, to wit, at the time of issuing the said writ of replevin in this suit, had been levied on and seized on by the sheriff of the county of Philadelphia, acting by virtue of his said office, under the authority of the state : and this the said defendants are ready to verify; wherefore, they pray judgment and a return of the said goods and chattels to be adjudged to them.”</p> <p>“ 8. And the said defendants, with the leave of the court, farther say, that they come and defend the wrong and injury, when, &c.; and say that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them ; because they say that the said goods and chattels in the said declaration mentioned, were at and before the time of issuing the writ of replevin in this suit, by sundry writs of foreign attachment, levied on, seized, and attached, by the sheriff of Philadelphia coun ty, acting by virtue of his said (flee, under the authority of the state, and were in the custody of the law, in the hands of the said defendants, and to all which writs of foreign attachment, they, the said defendants were summoned as garnishees. And this the said defendants are ready to verify: wherefore, they pray judgment and a return of the said goods and chattels to be adjudged to them.”</p> <p>The remaining twelve pleas averred respectively that the goods and chattels by foreign attachment, naming the dates, terms, numbers, and parties in each writ, (the defendants therein being the third persons or strangers named in the 2d, 3d, and 4th pleas.) were levied on, seized, and attached by the sheriff of Philadelphia county, acting by virtue of Ids said office under the authority of the state, and were in the custody of the law, in the hands of said defendants, and they the said defendants were summoned as garnishees.”</p> <p>The plaintiffs replied to the first plea by taking issue on it; to the second, third, fourth, and fifth pleas, property in themselves,</p> <p>6. The plaintiffs demurred specially to the sixth plea, and assigned the following causes of demurrer, viz.:—1. That the defendants do not say in their plea by whom or to whom the said freight mentioned is owing, or for what transportation. 2. That the freight is not said to be due or owing for the transportation of the goods in the declaration mentioned. 3. That the .■mounts respectively of the freight and storage mentioned in the ! aid pffia are not set forth; and that 4th, the storage is not stated to be due or owing for the goods in the declaration mentioned, nor is it stated by whom it is due, nor to whom,</p> <p>7, The plaintiffs demurred specially to the seventh plea, and assigned the following cause of demurrer, viz.: that it is not stated in said plea, upon what judgment, at whose suit, how, when, or wherefore the said goods were levied oil or seized by the sheriff’.</p> <p>8. The plaintiffs demurred specially to the eighth plea, and assigned the following cause of demurrer, viz.: that the said plea does not state at whose suit, for what cause, how, or where the said goods have been attached.</p> <p>9. The plaintiffs demurred generally to the 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, and 20th pleas.</p> <p>Cases cited: Reed v. Pedan, 8 S. & R, 263; English v. Dai-fa row, 1 Miles 160; Stephens on Pleading 421, 237; Thompson «.Button, 14 Johns, 86; Gardner v. Campbell, 15 Johns. 401; Clark v. Skinner, 20 Johns. 465 ; Act of 1705, relating to attachments ; Act of April 3, 1779, relating to replevins, &e.</p>

THE plaintiff obtained a judgment (June, 1837,-1257) against the defendant, as one of the firm of Love, Pickering & Co., consisting of the defendant and Jos. S. Pickering & C. Hoffman, upon a promissory note of said firm. He issued an attachment of execution on the 28th August, 1837, upon said judgment, and levied it upon the effects of said Love in the hands of Lewis Walton and John Northrop, Jr., and summoned them as garnishees.

THIS was an attachment of execution against Jones, defendant, with a clause in the nature of scire facias against Maxwell, as garnishee, in foreign attachment, under the 32d-38th sections inclusive, of the act of 18th June, 1836, relating to executions. Interrogatories were put to Maxwell, who made answer as follows, viz.: “ Jno.

THIS was a capias ad respondendum, to September term, 1837, 118.

THIS was a capias ad respondendum, to June term, 1837, 318, The plaintiffs on being ruled to show their cause of action, produced the affidavit of one of them, which was as follows, viz,: “ George T. Chambers, one of the above named plaintiffs, being duly sworn according to law, says : that the above mentioned defendant is justly and truly indebted to the said plaintiffs in the sum of 719 dollars, being the amount without interest, costs, &c. paid to the Manufacturers’ and…

CAPIAS ad respondendum to September term, 1837, No. 455. Plaintiff’s affidavit, on this rule to show cause, was in the following words, víz: “ Samuel Comly, the plaintiff, being duly affirmed, doth depose and say, that Samuel Goldsmith is indebted to him in the sum of 9379 dollars and 81 cents; deponent further saith, that said Samuel Goldsmith is a seafaring man; that he has just returned from a voyage in which he has been absent from the United States for many months; that…

IN EQUITY. IN this case, the defendant, Amies, filed a bill of discovery, under the 13th section of the act of 16th June, 1836, relative to the jurisdiction and powers of the courts, which stated, in substance, that this action had been instituted against him, in which the plaintiff, Charles Dull, had declared on eight promissory notes, in which issue had been joined, and also, that prior to the 30th of October, 1834, he being engaged in the manufacture of paper, •employed…

<p> Rule to show cause why judgment siwuld not be entered for want of a sufficient affidavit of defence. </p> <p>The lapse of a period of less than twenty years from the time a bond falls due, affords no presumption of payment, unless coupled with other circumstances to justify it.</p> <p>Where the defendant filed an affidavit of defence, under the act of 28th March, 1835, in a suit on a bond, stating a lapse of time less than twenty years, and stating a settlement of accounts, without averring payment of the bond, or that it was included in the settlement, the court held, that the presumption was not raised, and that the affidavit was insufficient.</p>

<p>THIS action was brought on a check given by defendant to plaintiff. A copy was duly filed, and the defendant filed the following affidavit of defence:</p> <p>“ Joseph White, being duly sworn, says, that he has a just and legal defence to the whole of the plaintiff’s demand, the nature and character of which is, that the instrument of writing or check whereon this action is founded, was given by this deponent for lottery tickets, and upon no other consideration whatever, purchased by this deponent from Santell, to whom or bearer said check was made payable.”</p> <p>Authorities cited : 1 Binney 170; Roscoe on Bills 115.</p>

<p> Rule to show cause of action, and why defendant should not be discharged on common bail. </p> <p>In general, a defendant shall not be twice vexed by being held to bail for the same cause of action. But where there has been an inadvertence or mistake in the plaintiff’s affidavit, and no actual oppression or design to harass appears, the court will allow, in its discretion, a second arrest</p>

THIS was an action brought by Benjamin M. Norman and others against “ Joseph Hope and Alexander Panormo, late trading as Joseph Hope and Company,” to June term, 1837,1476, on a promissory note, of which the plaintiffs filed a copy in the following words: “ Philadelphia, April 3d, 1837, Three months after date, we promise to pay to the order of Norman & Steel one hundred and fifty dollars, without defalcation, for value received. $150 Joseph Hope & Co.” The following…

THIS was an action brought to September term, 1836. The plaintiff filed a statement under the provisions of the 5th and 6th sections of the act of 21st March, 1806, (Stroud's Puri. tit. Courts,) claiming on certain promissory notes therein described. Defendant pleaded. And now plaintiff moved for leave to file a narr., adding counts on other promissory notes than those specified in the statement. cited Farmers & Mechanics Bank v. Israel, 6 S. & R.; 4 Watts 258; 2 Wkart. 32.

THIS was a capias ad respondendum. The defendant obtained this rule.

THIS was a writ of summons issued to September term, 1837. It issued on the 28th day of August, which was less than ten days before the first day of the next term, i. e. September term, and was made returnable on the second day of December, i. e. the Saturday preceding the first day (Monday) of December term. The defendant obtained this rule to show cause why the writ should not be quashed. referred to the act of 13th June, 1836, sectionSl, (Stroud’s Purd. lit.

THIS was an action instituted to June term, 1837, No. 588, by summons returnable to the first Monday of June, which is the first day of the term. The writ issued on the Friday preceding the return day mentioned therein, and which was the next return day after the date of issuing the writ.

THIS was a motion to set aside a sheriff’s sale, on the ground that the sheriff had not given sufficient notice of the time and place of sale, under the 63d section of the act of 16th of June, 1836, relating to executions, (Stroud's Purd. tit. Executions,) by advertisement in the newspapers, “ once a week during three successive weeks previous to such sale. The defendant obtained this rule to show cause.

THIS was an action brought to September term, 1837, No. 65. The plaintiff filed the following copy of a promissory note, on which the action was brought, and of which the defendant was the drawer: “Philadelphia, July 1, 1836. One year after date, I promise to pay to the order of Charles Mix, four hundred dollars, for value received, with interest. (Signed) George C. Mix. (Endorsed) Charles Mix. J. E. Betts.

THIS was a rule to show cause why judgment should not be entered against John H. Diehl, garnishee, on his answers filed to interrogatories propounded in a proceeding of attachment-execution issued under the 35th section of the “ act relating to executions” of the 16th June, 1836.

THIS was a capias ad respondendum, and this application was founded on an alleged defectiveness of the following affidavit, which,was duly filed: “Samuel P. Williams, agent for the plaintiff above named, being duly sworn, doth say, that the defendants above mentioned are justly and truly indebted to the plaintiff in the sum of $614 29 cents and interest, being the amount of a promissory note given by defendants to the plaintiff for goods sold and delivered by the plaintiff…

A FIERI FACIAS had issued in the case upon a judgment which bore date since the execution act of 16th June, 1836, came into operation.

THIS was a motion to set aside the sheriff’s sale under a levari facias. Under a deed of trust, Murphy was a trustee for the separate use of Elizabeth Fraley, wife of George R. Fraley, with, power to sell, convey, and mortgage, on the direction and appointment of the said Elizabeth. Murphy, trustee, and Elizabeth, the wife, executed a mortgage of the premises, in which the husband, George R. Fraley, joined.

<p> Exceptions to the return of a commission to take depositions. </p> <p>1. Commissioners to take depositions of witnesses in another state, returned to the commission, “the execution of this commission appears by the schedule hereunto annexed,” signed with their names, but not affixing a seal to them ; and the envelope had two seals, with the name only of one commissioner. Held, to be irregular, and the depositions cannot be read in evidence.</p> <p>2. In such case, where the defect is the result of inadvertence, the court will order the commission to be returned to be re-executed.</p>

<p> Rule on the defendant to plead. </p> <p>Of the practice under the 19th and 20th sections of the act of 16th June, 1836, relating to the lien Of mechanics, where a claimant, other than the plaintiff, files a suggestion of Ms claim against the building.</p>

IN this case, the summons issued on the 28th of October, 1837, returnable to a monthly return day, viz: the first Monday of November, 1837, (see act of 28th March, 1835, Stroud’s Purd. tit. Courts,) which was on the 7th of November. It was served on the return day, during the sitting of the court. The defendant obtained this rule to show cause.

THE plaintiffs having obtained judgment against the defendants, issued contemporaneously, a fieri fiadas, and attachment-execution, and the sheriff executed both. obtained a rule to show cause why the execution of the fieri facias should not be set aside.

THE following case was stated for the opinion of the court. “ John Wilkinson, one of the defendants, was indebted to the Kensington Bank, in the sum of 100 dollars for an over draft. “ The said John Wilkinson, was discharged by the insolvent laws—after such discharge, suit -was brought against the said John.

Where, on a judgment entered on a bond executed by a husband and wife, the real estate of the wife is sold, there being no fraud, or irregularity in the manner of conducting the sale, thjgcourt-piJJf application of the purchaser, set aside the sheriff’s saM odfafeh against the wife, on the ground that the sale does not \»st a full ; title in him to the property sold. Except under special circumstances, the rule of c&éat enrptor sheriff’s sales.

<p>In this case, the plaintiff, after the cause had been on the trial list, received from the defendant the amount of his debt, and gave a receipt in full. The case was called for trial, and the plaintiff was called, and not appearing, a nonsuit was entered. Upon affidavit presented, showing that the party plaintiff, supposed that the receipt of tiie debt would not subject him to costs, the court granted a rule on the plaintiff to show cause why the nonsuit should not be taken off</p> <p>cited 3 E. C. L. R. 5; 1 Holt's Rep.; 27 E. C. L. R. 310.</p>

THIS was a suit brought to June term, 1835, No. 441. While the cause was pending, to wit on January 27th, 1837, the parties entered into a bond, and submission to arbitrators, of “ all matters in variance between them.” The submission was not entitled in the cause pending, nor did it contain any reference to it. The arbitrators awarded in favour of the plaintiff 555 dollars 2 cents.

THIS was a writ of foreign attachment, bail $20,000, executed 23d Nov. 1837, with directions fo summon the Union Bank of Maryland as garnishees.

THIS was an action of replevin instituted to June term, 1837, No. 1207. The return of the sheriff was “ replevied, delivered, and summoned the defendant.” The property was delivered to the plaintiff. The defendant did not appear on the return day of the writ, and the plaintiff, having filed a declaration, on the expiration of the qua?'.'die post took judgment for want of an appearance by the defendant.

THIS was an alias attachment of execution. A previous writ had been issued, and garnishees had been duly summoned under the act of 16th June, 1836, relating to executions, and the plaintiff had not proceeded to judgment on it/or taken any other steps in relation to it.

THIS was an action to September term, 1837, No. 1259. The plaintiff obtained judgment for want of an affidavit of defence, and the defendant entered security, in the nature of special bail, for a stay of thirty days, under the act of 16th June, 1836. Before its expiration, the bail surrendered the defendant, who gave bond to take the benefit of the insolvent laws of the commonwealth.

THE plaintiff had obtained a judgment (December term, 1837, No. 222,) for want of a sufficient affidavit of defence, in which the defendant had averred that a part of the plaintiff’s debt had accrued prior to his, the defendant’s, discharge under the insolvent laws.

THIS was an amicable action, and judgment therein entered on the agreement of the parties. The defendant entered security in the nature of special bail for a stay of execution for thirty days under the 4th section of the act of 16th June, 1836 (Stroud’s Purd. tit.

FOREIGN attachment to March term, 1838, No. 29; and this was a rule on the plaintiff to show his cause of action and why the attachment should not be dissolved. On the hearing of the rule, it appeared that the defendant was a resident of New Jersey, and that on the day of the issuing of the writ, he had been twice for a short time in the city of Philadelphia, but the rest of the day in New Jersey.

<p>THIS was a summons, in which J. McClung was the plaintiff, and W. N. Murphy and Elizabeth Sansom were the defendants, to December term, 1837, 263. December 23, 1837, judgment for want of an affidavit of defence, sec. leg. December 27, 1837, damages assessed on a promissory note at 552 dollars, 88 cents. Elizabeth Sansom, one of the defendants, died on the 26th December, 1837; which was after judgment, and before the assessment of damages. A fieri facias was issued. The surviving defendant obtained this rule to show cause why the fieri facias should not be set aside; and offered to enter security for stay of execution, being within 30 days from the date of the assessment of damages, but more than 30 days from the date of the judgment.</p> <p>cited 1 Penn. R. 235, 216, 252; Stroud’s Purd. tit. Execution,</p> <p>cited 2 S. & R. 142; 5 Binn. 58; 6 S. & R. 411: 1 Watts 54; 16 S. & R. 347.</p>

“ JAMES LYND, Jr., one of the firm of James Lynd, Jr. & Co., to whose use the above suit is brought, being duly affirmed according to law saith, that the above named Charles Kintzing is justly and truly indebted to said James M. Kelly in the sum of five hundred and sixty-three dollars and twenty-five cents for goods sold and delivered by said James M. Kelly, to him the said Kintzing, and that said debt has been assigned by said Kelly to the above named firm of James Lynd &…

FOREIGN attachment to March term, 1838, No. 88. This was a rule to show cause why the writ of foreign attachment should not be quashed, or the attachment dissolved. The facts were as follows, viz.: The defendant, Tunis Decker or Deltker, came to this citjq from Holland, in the month of September, 1833.

THIS was an action brought by Seabury Brewster against Elam Lyndes and Charles S. Lyndes, trading as Elam Lyndes & Son—endorsee against the drawers—on a draft or bill of exchange.

THIS was a rule to show cause why a new trial should not be granted. The action was in assumpsit, brought to recover one hundred and fifty dollars and interest, the amount of two orders, as follows :— 1. “ Thibault & Brothers,—On demand, please pay to John M. Pleiss, or order, fifty dollars, in such jewelry as may suit a purchaser, and charge the same to account of due bill dated 15th December, 1834. $ 50. C. Maulé. April 18, 1836. Accepted, Thibault & Brothers.

IN this case the defendant filed the following bill of costs,— “ To paid H. Evert’s travelling expenses from Troy, New York, and back, - - - - $30 00 H. Evert’s one day’s attendance as witness, - 50 Exemplification from office of recorder of deeds, - - I 00 “ “ chancery record, N. Jersey, 8 00 “ “ mortgage, &o. from New Brunswick, - - - - 3 50 Expenses of messenger to New Brunswick and Trenton, 8 20 $51 20” The above bill was rejected by the prothonotary on taxation, with…

THIS was assumpsit brought to December term, ’37, No. 401, on notes, against defendants as drawers, viz. a 0322 40 “Philadelphia, March 8, 1833. “ Eight months after date, we promise to pay to the order of Ralph McClintock, $322 40, without defalcation, for value received. Mi'Ci.ixtock & Holmes. (Endorsed) R. McClintock.

THIS w7as an action of assumpsit., on a bill of exchange, dated the 18th of May, 1835, for $3000, ninety days after sight, drawn by the plaintiff to his own order, on the defendant, and accepted by him on the 25th of May, 1835. Pleas the general issue, payment, and set-off.

THE verdict had been for the defendant. The plaintiff moved for a new trial. The reasons and facts sufficiently appear in the opinion of the court.

THIS was a capias ad respondendum, issued on the fourth day of April, 1838, on which, the defendant on the same day was arrested. The defendant resided in Boston, and on the 30th of March, 1838, came to this city. The fifth day of April, 1838, had been fixed by the court of Common Pleas, of this county, for the hearing of applicants for the benefit of the insolvent laws of this commonwealth.

THIS was an action to March term, 1838, No. 262. In the writ one Webb was plaintiff, and the defendants were styled “ P. Samuels (whose first name is unknown to the plaintiff,) and David Samuels, trading under the firm of F. and D. Samuel.” The declaration followed the writ as to the parties, and the defendants were ruled to plead. April 4, 1838, David Samuel pleaded “ not guilty,” and Frederick Samuel pleaded in abatement a misnomer, as to himself.

THIS was an action brought by Charles Oakford against Henry Johnson, to March term, 1838, No. 633, on a promissory note in the following words : “ Philadelphia, 8th Bee, 183?, “ Three months after date, I promise to pay to A. K. Fahne-stock, or order, one hundred dollars, without defalcation, for value received. (Signed) J. C. Snyder.

IN this case, the plaintiff was “ William B. Mitchell, late Superintendent of the Columbia and Philadelphia Railway,” and the defendants were William Norris and others.

<p>IN this case, a venditioni exponas had issued to June term, 183?, No. 45, on a mechanic’s claim, on which judgment had been rendered on a scire facias, against the defendant, under the acts relating to mechanics liens, prior to that of the 16th of June, 1836. The property was sold by the sheriff, who paid the money into court. There was an auditor appointed to distribute the fund in court, arising out of the sale of this property, among the creditors ; and in pursuance of this duty, he decided in favour of certain claims, to the allowance of which, one of the creditors, viz.: Isaac Wilson, presented exceptions.</p> <p>The claims excepted to, with such extracts from the auditor’s report, as appear necessary to a proper understanding of the nature of the exceptions, are as follows:—</p> <p>The property sold, consisted of three pieces, designated by the auditor, as Nos. 1, 2, & 3.</p> <p>Fiest.—He excepted to the allowance by the auditor, of the claim of Powell Carpenter.</p> <p> Extract from Auditor’s Report. </p> <p>“ Powell Carpenter’s claim, a lien creditor.</p> <p>For bricks furnished to Nos. 2 and 3, amount proved, $326 35 Interest from September 30th, 1836, - - - 16 73</p> <p>$343 08</p> <p>“ The bricks were furnished about the 24th of August, 1836. A lien was filed for this claim on the 6th of March, 1837, against George Tryon, but the searches made for the auditor did not exhibit the lien, and he did not consider such filing to have been a sufficient compliance with the law.</p> <p>“This court, however, having expressed an opinion that the act of assembly of the 16th of June, 1836, does not embrace a case like this, and as the houses, against which this claim was made, were sold by the sheriff within two years from the time of the commencement of the said houses, the auditor reports in favour of the claim of Powell Carpenter.”</p> <p>Second.—He excepted to the allowance by the auditor of Thomas R. Sager’s claim.</p> <p>Extract from Auditor's. Report.</p> <p>“ Thomas II. Sager’s claim, a judgment creditor.</p> <p>Amount of claim.- §412 48</p> <p>Payment on account, allowed by auditor, being more</p> <p>than those admitted by claimant, - 237 29</p> <p>175 19</p> <p>Interest from May 13th, 1837, .... 7 88</p> <p> $183 07 </p> <p>“ This amount the auditor reports to be due to the claimant out of the fund in court.</p> <p>“The judgment in this case was taken by default for want of an appearance, and the damages have never been assessed. But a narr. and copy of the promissory note upon which the suit was in part brought, and statement of balance, claimed on book account, were filed. It was objected to this claim that the book account could not be introduced into the claimant’s demand, because the book account was due to the firm of Thomas R. Sager & Co., of which Jacob Snare was a partner. The auditor reports this fact to have been established before him, though a great deal of testimony was offered, on both sides, in relation to this question. The objection has not appeared to the auditor to be a valid one, after the judgment by default, (1 Strange R. 612,) and he has accordingly reported in favour of the claim.”</p> <p>Third.—He excepted to the allowance by the auditor of the claim of Hugh Smith & Co.</p> <p> Extract from Auditor's Report. </p> <p>“ Hugh Smith and Company’s claim, judgment creditors.</p> <p>Debt,.- §187 67</p> <p>Interest, - - - - - 3 40</p> <p>§101 07</p> <p>“ The damages on the judgment of these claimants have likewise never been assessed.</p> <p>“ A serious question is presented in regard to the last mentioned claims. Whether judgment by default in actions of assumpsit, are liens upon the real estate of the defendant, until after the assessments of damages. As this point was not raised before the auditor, he has not thought it would be proper for him to report upon the question, and he has accordingly not done it, but he reports an alternative table of distribution.”</p> <p>Fourth.—He excepted to the allowance by the auditor of the claim of Kochersperger & Armitage.</p> <p> Extract from Auditors Report. </p> <p>“ Kochersperger & Armitage’s claim, lien creditors.</p> <p>For smith’s work furnished to Nos. 2 & 3, amount proved, ------ §144 ^ o</p> <p>Add costs of filing claim, 1 o o</p> <p>§145 10</p> <p>Claim on property No. 2, - - §88 70</p> <p>Claim on property No. 2, - 55 40</p> <p> Supplemental report of Auditor, being an extract from the testimony before him. </p> <p>“ Mason Matlack sworn,—</p> <p>“ The articles charged in the bill of Kochersperger & Armi-tage were furnished for the premises Nos. 2 and 3. Before any articles were furnished by Kochersperger & Armitage, Tryom the defendant, contracted with them to furnish the articles for the buildings, and they were furnished agreeably to this agreement. The articles were delivered at the buildings.”</p> <p>Fifth.—He excepts to the allowance by auditor of the amount of mortgage held by John M’Curdy, a mortgage creditor. By mortgage on property No. 1, for one thousand dollars, dated January 29th, 1835, and recorded January 30th, 1835.</p> <p>Principal, -.$1,000 00</p> <p>Interest from November 6, 1836, ... 45 00</p> <p>$1,045 00</p> <p> Extract from Auditor's Report, </p> <p>“ Property No. 1 was subject to a mortgage to John M’Curdy for one thousand dollars, recorded the 30th January, 1835, prior to any other lien, and of course the lien of the mortgage was not devested by the sheriff’s sale, under the writ in this case. Though it seems to have been the intention of the mortgagee, defendant, plaintiffs, and some of the other parties interested, that the sale should have devested the lien; and the purchaser of No. 1 bought the property under the impression that it was sold free from all incumbrances, and bid for it a much higher price than it would otherwise have brought, yet as this intention appeared neither in the levy, advertisement, conditions of sale, nor the deed, the auditor was of opinion, that he could not allow the mortgagee payment out of the fund in the court, and to meet this objection, a paper was presented to the auditor, which is hereto annexed, and (marked) signed by</p> <p>Joseph Henderson, a judgment creditor;</p> <p>William Hays, the plaintiff, by his attorney, J. II Campbell;</p> <p>George II. Bürgin, a judgment creditor ;</p> <p>Hugh Smith, & Co., judgment creditors, by their attorney, James R. Wilson;</p> <p>Mary Randolph, a judgment creditor, by her attorney, J. R.</p> <p>Tyson : and by J. II Campbell, for the defendant;</p> <p>By which it was agreed, “ that the auditor should deduct from this fund the amount of a mortgage, held by John M’Curdy against the defendant for one thousand dollars, dated the 29th January, 1835, in the same manner as if it had appeared in the levy, advertisement, and condition of sale, and in the deed, that the property sold under the above writ was sold free from all incumbrances. Whereupon the auditor allowed this mortgage to be deducted from the fund in court.”</p>

<p>THIS was a summons issued on the 7th day of May, 1838, which was the first Monday of May, and a monthly return day in this court. It was made returnable the same day. The defendant obtained a rule to show cause why the writ should not be quashed.</p> <p>The counsel referred to the sections of the act of 13th June, 1836, relating to the commencement of actions, (Stroud’s Purd. tit. diction,) which are as follows, viz.:</p> <p>“ Sect. XXX.—Every writ used for the commencement of an action shall bear date on the day of the issuing thereof, and shall be made returnable on the first day of the term next succeeding the time at which it shall be issued.</p> <p>“ Sect. XXXI.—Provided, That in the case of a writ of summons if there shall not be ten days between the issuing thereof, and the first day of the term as aforesaid, the writ may be made returnable on the next day preceding the last day of such term, or upon the first day of the second term next after the issuing of the writ.</p> <p>“ Sect. XXXII.—In the courts for the city and county of Philadelphia, and county of Allegheny, all writs issued for the commencement of actions, may be made returnable on the first day of the next term as aforesaid, or on the first Monday of any intermediate month, at the election of the party suing out the writ.</p> <p>“ Sect. XXXIII.—If the defendant in any writ of summons, as aforesaid, shall not appear at the return day thereof, and the officer to whom such writ was directed, shall make return that it was served upon the defendant ten days before the return day aforesaid, it shall be lawful for the plaintiff having filed his declaration, to take judgment thereon for default of appearance, according to the rules established by the court to regulate the practice in this respect.</p> <p>“ Sect. XXXIV.—In case such writ shall not be served ten days before the return day thereof, if the defendant therein shall not appear in ten days after the day of service, it shall be lawful for the plaintiff having filed his declaration, to take judgment thereon at any subsequent day in term time, for default of appearance according to the rales established by the court to regulate the practice in this respect.”</p>

THIS was a case of exceptions to an auditor’s report, distributing the proceeds of a sheriff’s sale. The fund in court arose from the sale of a lot, with buildings thereon erected. No. 1. A three story brick house, commenced in August, or September, 1834, and not sold within two years. No. 2, 3, 4, 5. Four adjoining three story brick buildings, commenced in the spring of 1836, sold within two years. No. 6. Vacant lot.

THIS was a capias ad respondendum, to June term, 1838, 402. The defendant having been arrested, obtained a rule to show cause of action, and why he should not be discharged on common bail. On the hearing of this rule, and the production of plaintiff’s affidavit, the court reduced the bail.

<p> Motions for new trials. </p> <p>Actions against Edward M., on promissory notes, drawn and signed by, and with the name of his wife, Mary M. Proof that the husband and wife lived together; that although keeping separate stores, he sometimes assisted in her store; that the husband knew of the contracts, dealings, and business of his wife, without forbidding any credit to be given on his account; and that although not in the instances of the notes on which the suits were brought, yet the husband had a knowledge of, and assented to her making other promissory notes and had negotiated them to raise money on them; accompanied by other circumstances tending to show his knowledge of and assent to her general course of business: Held, that there was no error in the charge of the judge who tried the causes, in saying that these circumstances, in point of law, amounted to an assent and authority on the part of the husband, and an agency on the part of the wife to draw the notes, on which he was responsible as for the act of an agent authorized by him to draw notes for him in the name of the agent, and that plaintiff was entitled to recover.</p>

<p>THE defendant was a femxile, residing in Europe, and was summoned as garnishee.</p> <p>contended that the service upon him was erroneous, inasmuch as it is declared by the 2d section of the 3d article of the Constitution of the United States, “ the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers and consuls;” and the 9th section of the judiciary act of 1789, gives to the District Courts of the United States, “jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls,” so far as respects civil process.</p> <p>cited Serg. on Ml. 89.107,108.</p>

<p>Motion far judgment against garnishees.</p> <p>Where on interrogatories put to garnishees, in foreign attachment, as to the possession of moneys of the defendant, the garnishees in their answers do not explicitly and unqualifiedly admit it, judgment will not be entered against them on the answers.</p>

BY deed dated April 18,1834, Roberts (tiie testator,) conveyed all his real estate to Norris, in trust to receive the rents and profits, and pay the same over in certain proportions to the wife and children of Roberts. Previously to the making of the deed of trust, Roberts had contracted a debt with the plaintiff and died leaving it unpaid. Norris had been superseded in the trust by Gerhard, and made an assignment accordingly.

<p>THE following case was stated for the opinion of the court to be considered in the nature of a special verdict, subject to a writ of error by either party.</p> <p>“ Philip Justus was the owner of two contiguous lots of ground, situate on the south side of Wood Street, between Fifth and Sixth Streets, in the Northern Liberties of the City of Philadelphia. Upon one of which lots he had erected a three story brick messuage, against which he afterwards, on the other lot, put up an open shed eleven feet high, supported by a post in the ground at each end, with the rafters of the roof only let into four inch holes in the brick wall of said messuage.</p> <p>“ In the month of October, 1835, the sheriff seized and took in execution, all the property of said Philip Justus, and the said three story brick messuage, and lot of ground was sold and conveyed to Joseph Oat, the plaintiff; and the said shed and lot of ground was sold and conveyed to one Thomas Hart, who, in the year 1837, sold and conveyed the same to Nathan Middleton, the defendant, who soon after removed the said shed, and built on his said lot a three story brick messuage, breaking into and using the brick wall of the said plaintiff, in the usual way, from the foundation to the roof.</p> <p>“ The said brick wall is built upon the line of the said two lots in the usual way, half on each.</p> <p>“ Question.—Is the plaintiff entitled to recover I If yea, for the whole wall, or only that part above the shed ?</p> <p>“Judgment to be entered accordingly. If for the plaintiff, amount to be ascertained by attorneys.”</p> <p>5 S. & R. 1, Hart v. Kucher; 5 Rawle 151.</p>

<p>THIS was a foreign attachment to March 7, 1838, No. 162. The defendant obtained a rule to show cause of action, and why attachment should not be dissolved. On the hearing of the rule, the following affidavits were read.</p> <p>“ Benjamin F. Harley being duly sworn according to law, saith that he is the clerk and book-keeper of his father George Harley, the above named plaintiff. That the Charleston and Philadelphia Steam-packet Company, the above named defendant, is justly and fairly indebted to the above named plaintiff, in the sum of one hundred and seventy-four dollars and two cents, due and unpaid, for goods sold and delivered by said plaintiff, to said company at their request. And deponent further saith, that the said Charleston and Philadelphia Steam-packet Company is a foreign corporation, chartered and incorporated by the State of South Carolina, and further, that the above named plaintiff, his father, is confined to his house by sickness.”</p> <p>“ James M. Averill, of the county of Philadelphia, being duly sworn, declares that he superintended the building of the Steam Packet Charleston, owned by the defendants. The said steam packet was built at Kensington, Philadelphia. The office and place of business of the defendants is at Philadelphia, and always has been. Deponent does not know of any other office or place of business than that in Philadelphia. Their office is' and always has been on Girard’s Wharf, above Market street, in Philadelphia. The secretary of the company is John L. Wilson of Philadelphia, who attends daily at the office. lie has been secretary since the first establishment of the company. The president of the company is Thomas Earp, of Philadelphia. He lias been president since the first incorporation of the company. The following persons, all permanent residents of the city of Philadelphia, are directors of the company, viz.: Benjamin Reeves, C. C. Haven, J. B. Clement, Allen Reeves. He believes also that B. W. Tingley, of Market Street Philadelphia, is a director. All the business of the company, as far as deponent has any knowledge of it, has always been transacted in Philadelphia. Deponent as superintendent, made some purchases in behalf of the company, of Mr. Harley the plaintiff. The articles purchased were to be used in the constructing and building of the boat. Mr. Harley knew that the boat was built here. That the president, secretary, and several directors resided here, and that the office and place of business of the company were in Philadelphia.”</p> <p>admitted that the defendants were incorporated by the State of South Carolina, but alleged that as its place of business, and the individual residences of the corpora-tors were here, the case did not fall within the scope of the act of 13th June, 1836, section 74, (Stroud’s Purd. tit. Foreign Attachment,) which prescribes that “ a writ of attachment in the form aforesaid, may be issued against any foreign corporation, aggregate or sole, &c. &c.” That the residence of a corporation is where its place of business is, where the corporators reside, and where their property is. Angelí and Ames on Corp. 212,214,215 note; 5 Cranch 61, 64,86, 89; Const U. S. Art. 3, § 2, par. 20.</p>

IN this case, a scire facias to revive judgment, had issued to June term, 1837, 1222. The original was to Dec. 1835, No. 47. D. S. B. 16,000 dollars, in which Griffith Evans was plaintiff, and F. & F. Thibault, were defendants. The service of the scire facias was accepted by Thibaults and served on the terre tenants, hereinafter named. Judgment was obtained August 26, 1837, by default, for want of an affidavit of defence, and damages were assessed at 7,693 dollars.

THIS was an action brought to March term, 1838, No. 333, against the drawer, on a bill of exchange, protested for non-payment. The plaintiff filed a copy of the bill, which was as follows: “$137 50. “ Kensington, Philadelphia, October 1st, 1836. “ Four months after date, pay to the order of Mr. Charles B. Austin, Agent of the Union Glass Works, one hundred and thirty-seven dollars, and fifty cents, for value received, and charge the same to the account of Yours, &c. War.

<p> Exceptions to Auditor’s Report. </p> <p>A. died in 1826, seized of real estate, having made a will. B, sued his executor, in 1837, on a promise made by the testator in his lifetime, without giving notice of the suit to the widow and devisees, and obtained judgment. The testator’s real estate was subsequently sold at sheriff’s sale, on a judgment regularly obtained for a debt due by testator in his lifetime: Held, that was not entitled to be paid his judgment out of the proceeds of sale, he not having given notice of his action to the widow and devisees, according to the 34th section of the act of 24th of February, 1834.</p>

THE following case was stated for the opinion of the court. “ This is an action brought by the plaintiffs as holders, against the defendants as drawers of a bill of exchange on London, for the amount of the bill with damages, it having been protested for non-payment.

<p>THIS was an action of covenant brought to September term, 1838, No. 117. The plaintiff filed the following copy of an instrument of writing under the act of 28th March, 1835.</p> <p>“I, Isaac S. Loyd, having this day conveyed to Joseph Dugan, his heirs and assigns, six several yearly rent-charges, of one hundred dollars each per annum, payable half yearly by John Waterhouse, and issuing out of six contiguous lots or pieces of ground, with the buildings and improvements thereon erected, situate on the south side of Locust Street, between Schuvlldll Second and Third Streets, in the city of Philadelphia, do hereby, for myself, my heirs, executors and administrators, covenant, promise and agree to, and with the said Joseph Dugan, his heirs and assigns, to guarantee the punctual payment of the said six several yearly rent-charges of one hundred dollars per annum each, on the first days of July and January, in each and every year hereafter for ever; and also to pay to the said Joseph Du-gan, his heirs and assigns, within one year from this date, the principal money of the said ground-rents, being ten thousand dollars, or at any period thereafter, when thereunto required by the said Joseph Dugan, his heirs and assigns, and on payment of the principal money and arrears of ground-rent, he, the said Joseph Dugan, his heirs and assigns, shall and will reconvey the said six yearly rent-charges to me, my heirs, executors, and administrators. The aforesaid six yearly rent-charges being conveyed by me, to the said Joseph Dugan, his heirs and assigns, as a collateral security for the repayment of the sum of ten thousand dollars. In witness whereof, I, the said Isaac S. Loyd, have hereunto set my hand and seal, this twentieth day of the second month (February,) Anno Domini, one thousand eight hundred and thirty-seven.</p> <p>Isaac S. Loyd, [l. s.]”</p> <p>Sealed and delivered in presence of us, John Bonsall, James H. Castle. > Acknowledged and recorded same day. }</p> <p>The plaintiff also filed the following affidavit:</p> <p>“Before me, the subscriber, one of the Aldermen of the City of Philadelphia, personally appeared the above named Joseph Du-gan, who being duly sworn, did depose and say, that on or about the 20th day of February, 1838, and on several subsequent occasions, he has required the above named Isaac S. Loyd to pay him, the said Joseph Dugan, the above mentioned sum of ten thousand dollars, together with such arrears of the above described ground-rents, as were then severally due, according to the terms of the above instrument. But that the said Isaac S. Loyd has neglected and refused and does still neglect and refuse to pay the said sum of money and arrears of ground-rents, which are justly due to the said deponent, wherefore he brings his suit.”</p> <p>The defendant filed the following affidavit of defence:</p> <p>“ Isaac S. Loyd, the above defendant, being duly affirmed, doth say: that he has a just and legal defence to the whole of the plaintiff’s claim, of the nature and character following, viz.: He is advised by his counsel, that the paper filed, on which suit is brought, is not such as of itself to entitle the plaintiff to judgment. He also is advised that the affidavit of the plaintiff annexed to the paper filed, forms no part of it, and is irregularly appended to the record.</p> <p>“ He is further advised, that no suit can be maintained against him for the alleged cause of action, and of course, that no judgment can be had against him without a tender to him by the plaintiff, of a proper deed of the ground-rents referred to, prior to the commencement of any suit, and he avers, that no such tender was made prior to the commencement of the present action.”</p> <p>The plaintiff obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p>

THIS was an action brought to June term, 1838, No. 562. The plaintiff filed copies of the following papers, under the act of 28th March, 1835. “ $3,981 58. “ Philadelphia, 5th July, 1837. Eight months after date we promise to pay Shaw, Brothers, or order, thirty-nine hundred and eighty-one dollars and fifty-eight cents, without defalcation, for value received. No. 404. (Signed) J. N. & L. Dickson. (Endorsed) Shaw, Brothers, E. T. Shaw.

THE case was this. A levari facias on a first mortgage had issued on the 12th day of May, 1838, returnable “ on the first Monday of May next.” This was evidently a mistake for the first Monday of June; but had not been corrected by any application to the court.

<p> Rule to show cause of action, and why defendant should not be discharged on common hail. </p> <p>1. An affidavit of plaintiff’s cause of action, if made more than a year before suit is brought, is insufficient to hold to bail.</p> <p>2. But if process he taken out immediately after the affidavit is made, and be continued regularly, though, the defendant is not arrested until after the expiration of a year, the affidavit will be held sufficient.</p>

IN this case the judge, on the trial, received in evidence the plaintiff’s book of original entries, to prove goods sold and delivered, but reserved the point of its admissibility, objection having been made by the defendant, who obtained this rule to show cause why a new trial should not be granted. It appeared that the entries were transferred from a memorandum-book, some on the first, some on the second, and others on the third day after the entry in the memorandum-book.

ON the trial of this cause, the verdict was for the plaintiff, and this was a motion for a new trial. The action was in assumpsit for goods sold and delivered. The plaintiff (a druggist,) offered his book of original entries in evidence.

<p>JUDGMENT in this case was obtained on the 25th day of September, 1838, for want of an affidavit of defence. October 3, 1838, the plaintiff purchased a writ of error, and bail was regularly entered. October 19, 1838, the writ of error was lodged in the office of the prothonotary of this court before 12 o’clock, M., but no notice thereof was given to plaintiff, who, about 3 o’clock of same day, issued a fieri facias and capias ad satisfaciendum. The defendant obtained this rule to show cause why the fieri facias and capias ad satisfaciendum should not be set aside.</p> <p>said, 1. That by the acts of 11th March, 1809, 11th March, 1834, and 16th June, 1836, this writ of error was no supersedeas, having issued more than three weeks after the date of the judgment. (Stroud’s Purd. lit. Errors and Appeals, and Executions.) 2. The defendant should have given notice to plaintiff of the writ of error.</p>

IN this case a commission had issued at the instance of the defendant, to take the depositions of witnesses in New York. The commission was returned executed, and the plaintiff filed exceptions to its execution, under the 90th rule of this court. (1 Miles 459.) The exceptions were as follows: 1. One of the commissioners was attorney of the defendant. 2.

<p> Rule to show cause why the attachment of execution should not be set aside. </p> <p>1. A. obtained judgment against B. the maker, and C. the endorser of a promissory note. B. paid A. the amount, and took an assignment of the judgment against C., and issued execution. It not appearing that B. had a clear equity to entitle him to subrogation, the execution was set aside.</p> <p>2. Qu. whether a party in any case will be entitled to subrogation, unless «.prima facie case for it appear of record, and whether the court will receive evidence of it aliunde the record 1</p>

<p> Rule to show cause why an exoneretur should not he allowed. </p> <p>Summons against bail to the action served within ten days of the return day. The bail will be exonerated if he surrenders the principal within ten days after the day of service, and the quarto die post of the ten days—that is, within fourteen days after the service of the summons against the bail. The quarto die post as to such a case is not computed from the return day.</p>

<p>IN this action the following case was stated for the decision of the court, viz. :</p> <p>“On December 7, 1835, one of the plaintiffs, Dudley, gave to J. Bethell an acknowledgment of defendant, of a consignment of shingles to him for sale, by Ecker & Dudley, with his order or draft, in Bethell’s favour on defendant, for 150 dollars. This draft was presented to defendant by Dr. Bethell, son of plaintiff, in his behalf, and defendant said he had sold the shingles, and would pay the draft as soon as the note which he received for the shingles was paid, and gave said Bethell a memorandum in writing, to show when the note was due, viz.: ‘ January 29, 1836, 5 months' On the day the note was due, said Dr. Bethell called on defendant on behalf of his father, for the money ; defendant said there was three days grace and he would pay the draft the day it was due—that it was a good note, and he had taken it in preference to cash at the discount. The plaintiff, Bethell, gave Dudley value for the draft at the time it was received, viz. goods which Dudley sold at a profit, viz. 300 dollars, a few days after-wards. If on the whole case the court shall be of opinion that the said Joshua Bethel is entitled to recover on the said draft, in any form of action, the judgment to be entered for the plaintiff, the amount thereof to be settled by the counsel, if otherwise, judgment to be entered for the defendant.”</p> <p>cited Foster v. Andrews, 2 Penn. R. 160; Jackson v. Tilghman, 1 Miles 31; Gow on Part. 67.</p> <p>said that the debt was due to the firm of Ecker & Dudley, and that one partner cannot pledge a partnership security for his private debt, without consent of the other partners, 4 Johns. Rep. 251 to 272.</p>

IN this case (S. ’38, 696,) the plaintiff had filed a copy of his book entries, and on the third Saturday after the return day, took judgment for want of an affidavit of defence.

THIS action was instituted in this court upon a copy of book entries filed. Judgment was entered and obtained for want of an affidavit of defence against George Stuckert, execution issued, and a tes. fieri facias to Bucks County. The sheriff of Bucks, made return to this court, that he had taken in execution under this writ; “ I, The rent and issues of a two story brick house and lot, in Doylestown. “ II.

THIS was a foreign attachment to Dec. term, 1R37, No. GO, .Roberts, and others, against Hugg and Bell, copartners. The sheriff’s return was “ summoned Hugg, and as to Bell attached; and summoned Durden B. Carter et al. as garnishees,” Dec. 6, 1839, affidavit of cause of action filed, and Dec. 16,1837, a copy of promissory note filed.

THIS was a foreign attachment with a capias clause, exacting bail in 1200 dollars, against William Graham, garnishee, founded on the following affidavit: “ William Fryer, being duly sworn according to law, says, that he verily believes, William Graham, the above named garnishee, has in his possession or care, money and effects of the defendants, and that the said William Graham is not an inhabitant of the county of Philadelphia.” The garnishee obtained a rule to show cause…

<p>THIS was an action of assumpsit, to December term, 1837, No. 436, brought by John L. Hodge against Samuel Comly. The plaintiff filed the following copies of bills and notes.</p> <p>“ Havana, the 8th February, 1837.</p> <p>1. Third.—Exchange for $7000.</p> <p>At sixty days after sight, pay this third of exchange, (1st, 2d and 4th not paid,) to the order of John L. Hodge, Esq., seven thousand dollars, value received, which place to account of</p> <p>Your obedient servant,</p> <p>(Signed) Ysidio Sicart,</p> <p>(Endorsed) John L. Hodge.</p> <p>To S. Comly, Esq., Philadelphia.</p> <p>No. 740.”</p> <p>“ Havana, the 8th February, 1837.</p> <p>2. Third.—Exchange for $5,500</p> <p>At sixty days after sight pay this third of exchange, (1st, 2d and 4th not paid,) to the order of John L. Hodge, Esq., five thousand five hundred dollars, value received, which place to account of Your obedient servant,</p> <p>(Signed) Ysidio Sicart,</p> <p>(Endorsed) John L. Hodge.</p> <p>To S. Comly, Esq., Philadelphia.</p> <p>No. 743.”</p> <p>“ Philadelphia, Jtauaiy 2®, 1837.</p> <p>14000.</p> <p>3. Four months after date, I promise to pay to the order of Mr. John L. Hodge, without defalcation, four thousand dollars, for value received.</p> <p>(Signed) Samued Comet.</p> <p>(Endorsed) Johií L. Hodge.</p> <p>Payable at the Philadelphia Bank,</p> <p>No. 1406, May 23.”</p> <p>“ Philadelphia, January 20,1837.</p> <p>13,410 04.</p> <p>4. Four months after date, I promise to pay to the order of Mr. John L. Hodge, without defalcation, thirty-four hundred and ten dollars and four cents, for value received.</p> <p>(Signed) Samuel Comly.</p> <p>(Endorsed) John L. Hodge.</p> <p>Payable at the Philadelphia Bank,</p> <p>No. 1406, May 23.”</p> <p>The defendant filed an affidavit of defence, setting forth in substance “ that prior to the institution of the suit, and after the maturity of said bills, or drafts, and notes, in several conversations with the said Hodge, he distinctly, and repeatedly avowed to defendant that he was, (as in fact defendant firmly believed and alleged that he was, and is,) so far as regarded the two bills of exchange as aforesaid sued upon in this suit, (to wit, one for $7,000, one for 5,500,) only the agent or representative of a certain firm or commercial house, Hodge Oxnard & Co. of New Orleans: that he, said Hodge, had no interest therein himself, and was acting merely for said firm and could do nothing in relation to the said bills nor make any compromise therefor without consulting his said constituents, to whom he accordingly advised and requested defendant to write upon the subject of said paper and any arrangement in relation thereto. .</p> <p>“ Defendant furthermore averred that the said Hodge, Oxnard & Co., were at the time of the said conversation and still were largely indebted to defendant in the sum of $27,753 39, (say twenty-seven thousand seven hundred and fifty-three dollars and thirty-nine cents)—for a certain draft or bill of $17,250 (say seventeen thousand two hundred and fifty dollars) on said firm by them duly accepted but being and remaining due, unpaid and protested, which he holds and owns, and for an additional sum of $8,796 89-100, (say eight thousand seven hundred and ninety-six dollars and eighty-nine cents,) for advances made to them by defendant.</p> <p>“ Defendant furthermore averred that the said John L. Hodge, was before, and at the time of bringing his said suit, indebted to him in a sum of $11,384 07-100, (say eleven thousand and three hundred and eighty four dollars and seven cents,) being the amount of a certain bill of exchange due by said John L. Hodge, and yet remaining unpaid held and owned by your orator with damages and interest thereon.</p> <p>“ Yet notwithstanding all such sayings, conversations, avowals and indebtedness, as aforesaid, and although the said John L. Hodge was not at the time he instituted this suit, nor has been since, nor is now in fact in equity, or in justice the owner of the said bills, or drafts, so sued upon (the same belonging to the said firm) yet to prevent defendant’s setting off, or defalking his said just claim against Hodge, Oxnard <fc Co., and obtaining a judgment in his favour for the balance due him by said firm, and to prevent defendant’s procuring, as of right he should procure, a judgment against the said John L. Hodge, for the sum due by him to defendant, he the said John L. Hodge, doth now pretend and allege that he is the real and bona fide owner of all said bills, drafts and notes, whereon he has brought suit as aforesaid, and doth threaten to prosecute his said action and endeavor to procure a judgment therein and thereby fraudulently and unjustly to compel the defendant to pay to him the amount of said bills, drafts and notes, notwithstanding the indebtedness to defendant as aforesaid, of him the said John L. Hodge and them the said Hodge, Oxnard & Co., upon a fair and bona fide settlement of their mutual claims and accounts. And the said John L. Hodge doth refuse to allow to defendant credits against the said bills, now sued upon for the amount of his claims afore specified upon the said firm—and against the said notes now sued upon the amount of defendant’s said claim upon the said John L. Hodge.”</p> <p>The plaintiff obtained a rule to show cause why judgment should not be entered, notwithstanding the affidavit of defence.</p> <p>Cases cited: Waggoner v. Colvin, 11 Wendell 27; Olcott ». Rathbone, 5 Wendell 490; Stevens v. Robbins, 12 Mass. 180; 7 Corven 176; 2 Dali. 43; Leigh’s Nisi Prius 477.</p>

<p> Rule to show cause why the judgment should not be set aside. </p> <p>A. took and entered an amicable confession of judgment from two persons, as partners, trading under the style of a particular firm. An application made by the plaintiff to set aside the judgment, on the ground that he had subsequently discovered that there was another partner in the firm, was refused.</p>

ACTION to December term, 1838, No. 819. The plaintiff filed a copy of promissory notes, but filed no narr, or statement of his claim. Defendant voluntarily filed a plea, and directed the prothonotary to put the case on the trial list. The plaintiff had filed no replication. Upon the cause being called for trial, plaintiff did not appear, and was nonsuited. The plaintiff obtained this rule to show cause. referred to 6 S. & R. 25-53.

<p>IN this case, the plaintiffs had issued a fieri facias on the 31st day of August, 1838. The next return day was the first Monday of September, being the first day of September term, 1838, but the plaintiffs, by their praecipe, made the fieri facias returnable on the first Monday of October, 1838, being a monthly return day under the act of the 28th March, 1835, relating to this court. The fieri facias was delivered to the sheriff, who levied on personal property of the defendant. Next in order, one Lennig issued afieri facias against the same defendant, on which the sheriff levied on the same property, subject to the prior levy. The plaintiffs (Loan Company) then issued an attachment of execution, under the act of 16th June, 1836, relating to executions. (Stroud’s Purd. tit. Execution.) The sheriff sold the property, returned both writs of fieri facias “levied and sold,” setting forth the amount of sale, and the dates of the respective levies, and paid the proceeds into court. The plaintiffs then obtained a rule to show cause why they should not take out of court the amount of their debt, &c. The subsequent execution creditor (Lennig) opposed the making of this rule absolute. The defendant did not appear in the matter in any way.</p> <p>On the hearing of the rule,</p> <p>argued, 1. That the issuing and execution of the fieri facias by the plaintiffs (Loan Company) was void ab initio, it having been issued before the return day of September term, (i. e. the first Monday of September,) and was made returnable to the first Monday of October. Act of 28th March, 1835, and Act of 16th June, 1836. 2. That the issuing of an attachment of execution after levy on the fieri facias, and before sale, was a waiver of plaintiffs’ lew, and was an election of execution on the writ of attachment, and Lennig, therefore, had a preference to the money in court.</p> <p>The counsel cited Young v. Taylor, 2 Binn. 218; 2 Browne’s R. 144; Ingham v. Snyder, 1 Whart. 123; Coleman v. Mansfield, 1 Miles 56 ; 12 S. & JR. 37 ; 2 Rawle 282 ; 3 Rawle 344; 4 Rawle 366, 380; 3 W. C. C. R. 60; Act of 16lh June, 1836, sect. 20 ; Act of 28th March, 1835, sect. 2.</p>

THE defendant, in this case, pleaded her coverture at the time of the making of the promises declared on by the plaintiff. The plea was signed by the defendant’s attorney, and not by the defendant in person. The plaintiff obtained a rule to show cause why the plea should not be struck off.

<p>THIS was an action of trover to March term, 1839, No. 961. The plaintiff being ruled to show his cause of action, produced the following affidavit:—</p> <p>“ George W. Gorton being duly sworn according to law, says, that H. O. Henry, the above named defendant, hath possessed himself of divers goods and chattels, of the above named plaintiff, of the value of three hundred dollars, which he hath refused to deliver to said plaintiff, and hath converted the same to his own use.”</p> <p>cited 32d E. C. L. R. 353.</p>

THIS was a motion for a new trial by the plaintiff. The facts sufficiently appear in the opinion of the court, which was delivered by

THE following case was stated for the opinion of the court as a special verdict. “ March 23, 1835, the said parties agreed as follows: ‘ Mary T. Pleasants agrees to let to J. W. Claghorn, and J. W. Claghorn agrees to rent to Mary T. Pleasants, the said Mary T. Pleasants’ house, on the west side of Tenth Street, fifth door above Cherry Street, for one year, at four hundred and sixty dollars per annum, payable quarterly.’ Defendant continuing to occupy the premises at the said…

THIS was an action on the case for negligence, brought by-John Blattenberger, against the Little Schuylkill Navigation, Rail Road and Coal Company, William Alexander, Frederick Koons, and Alexander Scott, to recover damages for the running of a canal-boat called the Mahanoy, owned by the Little Schuylkill Navigation, &c. Company, near Fairmount, against another canal-boat, owned by the plaintiff, by which the latter boat and cargo sustained injury.

<p>THE defendant obtained this rule to show cause. The plaintiff had obtained judgment prior to the taking effect of the act of 16th June, 1836, relating to executions, {Stroud's Purd. tit. Executions.) After the act went into operation, he issued a scire facias post ann. et. di. to revive the judgment, and obtained judgment on the scire facias. He then issued an attachment of execution.</p>

<p>THIS was an action to June term, 1839, No. 185. The defendant having been arrested on a capias ad respondendum, ruled the plaintiff to show his cause of action. The plaintiff produced his affidavit, averring that defendant was indebted to him “ in the sum of 10,000 dollars, for money had and received by the said defendant, to the use of deponent, as deponent verily believes.”</p>

THIS cause was tried before Stroud, J., and a jury. The action was brought to recover the price of defendant’s board at a tavern. The verdict was for the plaintiff, the judge reserving the point as to the liability of the defendant. Defendant moved for a new trial. On the hearing of the rule, referred to the 23d section off the act of 11th March, 1834, (Stroud’s Purd. lit. Inns and Taverns.)

<p> Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence. </p> <p>A. gave a mortgage to B., the principal payable in ten years, and the interest half yearly, with a proviso that if at any time default should be made in the payment of the interest for 30 days after it became due, the principal should become presently due, and the mortgagee might proceed to judgment and execution. Default in the payment of six months’ interest several times occurred, but the mortgagee did not insist on the forfeiture, and after the thirty days received the interest. The last instalment of interest was not paid within the thirty days. But before it became due, the parties agreed that the mortgagee should be at liberty to pay off the principal sum before the same became due, at any time, in instalments. After suit brought, the mortgagor tendered payment of part of the principal, and the interest which was more than thirty days due. B. brought suit on the mortgage : Held,</p> <p>1. B. was entitled to sue for and recover the whole amount of principal and interest.</p> <p>2. The mere receipt of the interest, several times after the expiration of the thirty days by the mortgagee, was not per se, a waiver of his right to insist on the forfeiture of the whole amount due, in case a subsequent instalment of interest became due, and remained after the thirty days unpaid.</p> <p>3. An agreement by the mortgagee, to receive part of the principal before it was due, the payment of which was not complied with by the mortgagor before suit brought, was no waiver of the right to enforce the payment of the mortgage according to its terms.</p>

<p>Rule to show cause why execution should not issue against garnishee.</p> <p>Plaintiff issues an attachment of execution, and attaches a deposit made by defendant in a bank, which admits the amount due to the defendant at the service of the writ. After the service on the same day, defendant’s check, dated several days before, was presented to the bank. The court awarded execution against the bank as the garnishee, under the act of 16th June, 1836, relating to executions.</p>

<p> Rule to show cause why a judgment should not he set aside. </p> <p>1. An accidental over-draft of a depositor on a bank, is not a “contract for the loan or advance of money,” under the fourteenth section of the act of 11th March, 1336, entitling the plaintiff to judgment for want of an affidavit of defence in this court.</p> <p>2. The act of 11th March, 1836, means actual or express contracts for the loan or advance of money.</p>

IN this case (March term, 1839, No. 27.) Rundle had a judgment in this court, against Seheetz, who was an inspector of customs of the United States. The plaintiff issued an attachment of execution, and filed the following interrogatories to George Wolf, the garnishee: “ First.—Do you know John II. Seheetz, the defendant in the above suit named 1 “Second.—Are you or are you not indebted to the said John H. Seheetz ?

THIS was an action to June term, 1839, No. 352. Plaintiff filed a copy of an instrument of writing, viz.: “I hereby certify that I this day bought of Joseph Fox, agent for Abraham Hibberd, fifteen fat steers, which are to be drawn as follows, viz.: eight of them on the 24th instant, and the remainder on the 31st instant; and for which I have agreed to pay him on or before the 15th of next month, eight hundred dollars, current money of Philadelphia.

THE plaintiff brought an action to September term, 1839, No. 317, to recover three hundred and forty-seven dollars, balance of his deposit account with the defendants, and filed a copy of his book, commonly called a “ bank-book,” commencing “ Edward Harley in account with the Schuylkill Savings Institution,” showing a balance struck in his favour. On the 20th of September, the plaintiff had judgment against the defendants for want of an affidavit of defence.

<p>A CAPIAS ad respondendum issued in this case, and the defendant was arrested. He obtained this rule to show cause. On the part of the Commonwealth, at the hearing of the rule, affidavits of two of the officers of the Commonwealth were produced, setting forth, in substance, that the defendant had been collector of tolls on the state rail road, that he had received of the moneys and tolls of the Commonwealth the sum of 100,225 dollars and 33 cents, and that he had paid over to the State Treasurer 125,485 dollars and 84 cents, leaving a balance due and unpaid by the defendant to the state of 34,539 dollars and 49 cents, as appeared by the accounts kept in the public departments.</p> <p>said the affidavit was defective, inasmuch as the amount alleged to be due, was sworn to, as appears by certain accounts. He argued that this was not sufficiently positive, and cited 3 Doug. 370.</p>

IN this case, the following facts were agreed on by the parties, to be submitted to the court in the nature of a special verdict, and to have the same effect as if found by a jury, namely, “ William Coats, of the County of Philadelphia, deceased, being seized in fee of a certain brick messuage and lots of ground situate on New Market Street, in the County of Philadelphia, devised the same in fee to his daughter and only issue, Sarah Coats, who afterwards intermarried with a…

THIS was a capias ad respondendum to September term, 1839, No. 343, in which Alexander B. McAlpin was the plaintiff, and Robert Newell and James Campbell were the defendants. The sheriff was ordered to accept the appearance of defendants. The debt, to recover which this suit was brought, was incurred prior to March, 1834.

<p>THIS was a capias ad respondendum. The defendant obtained this rule to show cause, on the ground that he was a freeholder.</p> <p>On the hearing of the rule, the counsel discussed the competency of the evidence before the court as to the freehold, and as to its sufficiency.</p>

<p>THIS was an action in which Nathan Y. Hunt was plaintiff, and John Kline, George Kline, and Benjamin Hunt, trading, &c. were defendants, to September term, 1839, No. 886. It was entered by the amicable agreement of Benjamin Hunt, one of the defendants, and there was a confession of judgment by the same defendant, in the name and on behalf of all the defendants.</p> <p>The other defendants presented affidavits, averring that the judgment was confessed by their copartner without their consent, and in fraud of their rights, that they had a defence upon the merits against plaintiff’s claim, setting them forth in detail, and on their motion a rule was granted to show cause why the judgment and execution issued thereon, should not be set aside.</p>

<p>moved that the defendant be discharged on common bail, he having been arrested on a capias ad respondendum, and having been in prison under it more than a year, the plaintiff having filed no declaration. The court granted a rule to show cause, on the hearing of which, defendant’s counsel said that the plaintiff by not having filed a de-(iteration within a year after the return of the writ, was out of court. He cited l Sell. Pr. 221; 2 T. R. 112: 3 T. R. 123; 5 T. R. 35.</p>

JUDGMENT was entered in this case, on the 7th day of October, 1839. No further proceeding took place till the 9th day of November, 1839, when the defendant entered surety for stay of execution. Plaintiff obtained this rule to show cause. said, that by analogy to the principle of the case of Mann v. Alberti, 2 Binn. 195, the security although entered after the thirty days, if before execution issued, operated as a stay.

IN this case, a claim had been filed by Walter against fifteen houses and lots for materials furnished to them. No scire facias having been sued out by him, Richard Morris, the owner presented his petition to the court, praying that an issue might be ordered to try the validity of the claim, under the 23d section of the act of 16th June, 1836, relating to mechanics’ liens, (Stroud’s Purd. tit. Mechanics' Lien.) See Borton v. Morris, ante, p. 109.

THIS was an amicable action to September term, 1839, No. 1359, entered on the following agreement, viz.: “ We, the subscribers, do hereby submit all matters in variance between us to the arbitrament of Samuel Copeland, James Leslie, and Benjamin M. Feltwell, whose award, or the award of any two of them, shall be final and conclusive, without exception or appeal, and we authorize judgment to be entered thereon in any court in the county of Philadelphia, at the expiration of…

THE plaintiff had judgment (Dec. term, 1838, No. 35.) against Bridges, who was a barkeeper in a hotel. The plaintiff issued an attachment of execution, in which the employer of the said Bridges, was the garnishee, and the attachment was served July 24, 1839.

THIS was an action brought to Dec. term, 1839 ]\o. 448, by Bevan and Humphreys, against Joseph M. Eldridge, on the defendant’s endorsement of the following notes, of which plaintiff filed a copy, viz.: “ $2111. 48 Philadelphia, May 23d, 1839, Six months after date, I promise to pay to the order of Joseph M. Eldridge, twenty-one hundred and eleven dollars, 48 cents, without defalcation, for value received. Benjamin Eldridge. (Endorsed) Joseph M. Eldridge, Pr. Benj.

THIS was an action brought to December term, 1838, No. 1043, in which “William Taylor” was the plaintiff, and “H. Rossiter, alias Vanderslice” was the defendant. The plaintiff’s declaration followed the writ as to the names of the parties. The defendant filed the following plea in abatement, viz. : “Jacob F. Vanderslice, sued by the name of H. Rossiter, alias Vanderslice v. William Taylor.

<p> Motion for judgment for want of an affidavit of defence. </p> <p>A. agreed with B. lo accept all drafts which the latter might draw on the former. Afterwards B. made his drafts on A. in favour of C. which A. did not accept. In an action by C. against A.: Held, that the drafts and the agreement, taken either together or separately did not constitute “an instrument of writing for the payment of money,” under the act of 28th March, 1835, entitling the plaintiff to judgment for want of an affidavit of defence.</p> <p>Qu. Could C. recover against A. on any or all of these instruments'?</p>

A HOUSE in Fourth Street, the property of the defendant, was sold under a venditioni exponas issued in this case, the fund was paid into court, and the matter was referred to an auditor. Before the auditor, Parry & Newbold claimed to take out of court, the sum of 475 dollars 58 cents, with interest, for which sum they had filed a lien for lumber in this court, October 23, 1837, against said house.

THIS was an action brought by William Jackson against J. H. Polack, trading under the firm of J. H. Polack & Co., td December term, 1839, No. 193. Jan. 4,1840. Rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defence.

IN this case the real estate of the testator, Roberts, had been sold under a venditioni exponas, and after paying out of the proceeds of sale, all the creditors who had specific liens by judgment, &c. there remained a surplus in court. The executor, Owens, moved to take the surplus fund out of court on filing a bond with one surety, conditioned for the legal distribution of the money.

THIS was an action to September term, 1839, No. 1687, brought by J. N. Dickson, et al., against Violet Primrose and -Manny, trading under the firm of Primrose and Manny, and Manny and Primrose.

<p>THIS was an application to enter security for a stay of execution, on a judgment rendered against the defendant in this court, under the act of 16th June, 1836, relating to executions, sections 3d and 4th. (Stroud’s Purd. tit. Execution.) Several exceptions having been taken by the plaintiff’s counsel, which it is unnecessary to recapitulate;</p>

THIS was a foreign attachment in debt to December term, 1839, No. 215, in which F. C. Wemyss was summoned as garnishee.

THIS action was brought by William Palmer, for the use of William Thompson and William W. Pinneo, trading as Thompson & Pinneo, against Thomas Palmer, to March term, 1839, No. 334. The writ issued on the 7th day of March, 1839. The narr■ was in debt on a judgment obtained between the same parties in the state of Ohio. The pleas were nul tiel record, payment, and set-off.

<p>IN this case, a levari facias had issued on a judgment obtained on a mortgage given by the defendant to the plaintiff. The property was sold by the sheriff under this writ and he paid the proceeds into court. This mortgage was subsequent in date to a judgment against the defendant, held by “ The Guardians for the Relief and Employment of the Poor,” &c. more fully stated hereafter.</p> <p>On the twelfth of May, 1837, James Hughes, the defendant, executed a bond and warrant of attorney, a copy of which is as follows, viz.:</p> <p>“ Know all men by these presents, that I, James Hughes, of the city of Philadelphia, grocer, am held and firmly bound to ‘ The Guardians for the Relief and Employment of the Poor of the City of Philadelphia, the District of Southwark and the Townships of the Northern Liberties and Penn,’ in the sum of one thousand dollars, lawful money of the United States, to be paid to the said ‘ The Guai’dians for the Relief and Employment of the Poor of the City of Philadelphia, the District of Southwark and the Townships of the Northern Liberties and Penn,’ their certain attorney, successors, or assigns; to which payment well and truly to be paid, I bind myself, my heirs, executors and administrators firmly by these presents; and I do hereby empower any attorney, of any court of record, to appear for me and, after declaration filed for the above sum, thereupon to confess judgment or judgments against me as of any time or term before or after the date hereof, and thereupon to issue execution for such sum or sums as shall, by affidavit filed in the said court, appear to be due by breach of the condition of this obligation, together with the costs of suit; and the said judgment or judgments shall afterwards remain as a security for the performance of the said condition, and, in case of any further breach of the said condition, execution shall issue thereupon in the same manner as before. Sealed with my seal, dated the twelfth day of May, in the year of our Lord, one thousand eight hundred and thirty-seven.</p> <p>“ Whereas complaint was made to the Mayor’s Court for the City of Philadelphia by the said guardians that the above bounden James Hughes had separated himself from his wife Rebecca and three children without reasonable cause, leaving them chargeable; and the said court, at March session, 1837, after hearing said complaint, made an order that the said James should pay to the said guardians for the support and maintenance of his wife and children the sum of #10 per week, to commence from the 22d day of February last past, to pay the costs of prosecution, and to give security in the sum of #1000 to the guardians, the said wife and children having become chargeable to the inhabitants of the city of Philadelphia, the district of Southwark, and the townships of the Northern Liberties and Penn, or some one of them.</p> <p>“ Now the condition of this obligation is such, that if the above bounden James Hughes, his heirs, executors, or administrators, shall and do, from time to time, and at all times hereafter, fully and clearly acquit, free, and discharge, or well and sufficiently save, defend, keep harmless, and indemnify the guardians aforesaid, and their successors, and also the inhabitants of the said city, district, and townships, of and from all manner of expenses, damages, costs, and charges whatsoever, which shall or may at any time hereafter arise, happen, grow, or be imposed upon them, or either or any of them, for or by reason or means of the premises, by paying to the said guardians the sum of #10 for each and every week, to commence as aforesaid, and in all things faithfully performing said order, and of and from all other actions, suits, troubles, charges, damages, and demands whatsoever, touching or concerning the same, then the above obligation to be void, otherwise to stand, be and remain in full force and virtue.</p> <p>James Hughes. [l. s.]”</p> <p>This bond was duly witnessed.</p> <p>Judgment was entered on this bond and warrant, in this court, on the I9th day of May, 1837, in the penalty of f 1000.</p> <p>The mortgage given by Hughes the defendant, to Vogel the plaintiff, was subsequent in date.</p> <p>The mortgage creditor obtained a rule to show cause why he should not take out of court the amount of $511, on the ground that Hughes had, under the condition of his bond to the “ Guardians for the relief, &c. of the poor,” paid to them $10 per week for fifty-one weeks, making in the aggregate $511, on account of the bond, the penalty of which was, as aforesaid, $1000.</p> <p>cited 1 Doug. 48 ; 6 T. R. 303; 2 Win. Black. 1190 ; 8 Comen 623-4.</p>

THIS was a levari facias to September term, 1839, in which Jesse Williamson was the plaintiff, and James Lamb, administrator d. b. n. of Arthur Means, deceased, was the defendant. The judgment had been obtained on a mortgage given by the testator. James Lamb, the defendant, was the purchaser at the sheriffs sale.

<p>THIS action was brought by capias to December term, 1839, No. 1267—the writ issued returnable to a monthly return day, viz.: the first Monday of February, 1840, which was on the third day of that month. The defendant was arrested and gave bail. On the 4th of February, 1840, he obtained this rule to show cause why the writ should not be quashed, on the ground that he was a freeholder in Schuylkill county, and thereby privileged from arrest.</p> <p>On the hearing of the rule, there was sufficient evidence of his freehold.</p> <p>referred to the act of 20th March, 1725, regulating the practice as to arrests, sect. 3d (Stroud’s Purd. tit. Action), on which he contended that the defendant had waived his privilege by submitting to the arrest; that his application for relief was too late, and that he should have moved “forthwith” for the abatement of the writ.</p> <p>cited 1 Dali 310; Ibid. 348-9.</p>

<p> Rule to show cause why a third person should not he made a defendant m ejectment. </p> <p>A. brought ejectment for land against B., in his possession, on certain articles of agreement between them. After the serving of the writ, B. conveyed the land to C. by deed, and C. applied to be made a defendant, on that ground, in the action of ejectment brought by A. against B. The application was refused.</p>

THIS was an action of slander brought by capias ad responden-dum, to December term, 1840, No. 506. The defendant obtained this rule to show cause of action, and why he should not be discharged on common bail. On the hearing of the rule, Jack read the plaintiff’s affidavit, which averred that “ the defendant did make use of the following false and scandalous words.

THIS action was brought to June term, 1839, No. 281, and the plaintiff obtained a judgment. He issued & fieri facias which was returned nulla bona, and then issued a testatum fieri facias to Clearfield County, returnable to March term, 1840.

THIS suit was brought for the sum of $174 03, with interest from August 3d, 1831, for a moiety of a party wall between the premises of the plaintiff and defendant. Anthony Chardon, by deed dated the 1st of April, A. D. 1836, conveyed certain premises (including the party wall in question) to the plaintiff in fee.

IN this action (Dec. term, 1839, 1603), the plaintiff obtained judgment, whereupon the defendants obtained this rule to show cause why they should not be permitted to plead their freehold for a stay of execution, under the 3d and 4th sections of the act of 16th June, 1836.

<p> Rule to show came of action, and why defendant should not he permitted to appear and take defence, fyc. </p> <p>1. Under the 64th section of the act of 13th June, 1836, providing for the commencement of actions by foreign attachment, the defendant may cause an appearance to be entered, and take defence at any time before the execution of a writ of inquiry issued and judgment entered, at or after the third term for default of appearance.</p> <p>2. It is too late to rule the plaintiff in foreign attachment to show his cause of action, after judgment entered at or after the third term for default of appearance.</p>

THIS suit was brought by J. & T. Foster against Isaiah Bell. The plaintiffs’ claim was for a balance due for flour, sold and delivered by plaintiffs to defendant. The narr. was for goods sold and delivered, with account stated. The pleas were non assumpsit, payment, and set off, with leave to add, alter, and amend, and to give the special matter in evidence. On the trial of the cause, defendant offered to prove the facts stated in his notice, which follows.

THIS suit was brought to March term, 1840, No. 590. The defendant filed an affidavit of defence; and, on filing proof that two of the three plaintiffs were, at the institution of the suit, residents of Buenos Ayres, the court granted a rule on the plaintiffs to show cause why they should not give security for costs. It appeared that the third defendant resided in this state.

THIS case was called for trial before Judge Stroud and a jury. It was an action brought for the hire of certain horses by the plaintiff to the defendant. On the trial of the cause, after the plaintiff’s evidence had been heard, the judge directed a nonsuit to be entered, under the act of 11 March, 1836. The points ruled by the judge were as follows, viz.: “ 1.

<p> Rule to show cause why judgment should not be entered for want of an affidavit of defence. </p> <p>A recognisance of bail in error is an instrument of writing for the payment of money under the act of March, 1835, entitling the plaintiff to judgment for want of an affidavit of defence.</p>

THIS was a debt on a bail-bond taken under the act of 13th June, 1836. The plaintiff’ took judgment, on the regular day, for want of an affidavit of defence. (See 1 Miles 25.) Defendant obtained this rule to show cause.

THIS action was brought by the Girard Bank in the City of Philadelphia against Samuel Comly, to March term, 1840, No. 250. The plaintiffs filed a copy of promissory notes on which this action was brought, viz.: “ $1000. No. 1. No. 1.

<p>THIS cause had been referred to three persons, and on the taxation of the bill of costs, the prothonotary allowed the referees pay for twenty-three days. The defendant appealed from the taxation and filed exceptions thereto. It appeared that there were but five meetings at which any evidence was heard or the parties were present. The other meetings were occupied by private deliberations among the referees. One of the referees on examination stated that the time was wasted. One of the other referees, also examined, thought otherwise.</p>

<p>THIS was an action against Margaret Day, and the plaintiff had judgment. On the 5th of December, 1839, he issued an attachment of execution, and it was served on William E. Lehman.</p> <p>The following interrogations were put to W. E. Lehman, the garnishee.</p> <p>“ 1. Are you not the executor, duly qualified, of the last will of William Lehman, deceased, and is there not in the said will a bequest to Margaret Day, the above defendant, formerly wife of James Day, of $500 per annum during her life? If aye, state the same, and all you know in relation to it.</p> <p>“ 2. When did you last pay the said annuity, or any portion of it, to the said Margaret Day? From what time did the same first become payable under the said will, and what arrears are now due, and when will any portion of the said annuity be next payable ?</p> <p>“ 3. Do you know of any other bequest due or accruing to the said Margaret Day, under the said or any other will or instrument of writing ?”</p> <p>The following answers of the said W. E. Lehman were filed.</p> <p>“ 1. I am the executor duly qualified of the last will of William Lehman, deceased; there is a bequest to Margaret Day, aforesaid, in said will, as follows: ‘ I give and bequeath to Margaret Day, the wife of James Day, formerly Margaret Egan, f500 per annum for and during the term of her natural life.’</p> <p>“ 2. I paid the last arrear of this annuity or legacy aforesaid, on the 16th April, 1839: the first payment of the same became due under the said will on the 29th March, 1830. No arrears are now due, and none will be due or payable until the 29th March, 1840.</p> <p>“ 3. I know of no other bequest to the said Margaret Day, except that contained in the said will.”</p> <p>On the 21st April, 1840, this court granted a rule on the defendants to show cause why judgment should not be rendered against them upon these answers.</p> <p>said that the executor’s duty is to set aside a proper sum to enable him to pay the annuity; that an account for money had and received, would lie by the annuitant against the executor, and that the annuity would pass under the insolvent law.</p> <p>The counsel cited 2 Munf. 412: 9 Fes. 6, Bailey v. Bishop; 3 Swan. 487 ; 2 Wms. Ex. 756; 1 & & Stu. 463, Davis v. Walters; 2 Ball 211, Walker v. Gibbs; 2 Yeates 190, McCarty». Emlen.</p>

<p> Exceptions to Auditor's Report. </p> <p>G. leased certain real estate to W. for four years at a certain rent. Before the expiration of the term W. underlet the same for the remainder of his lease to D., who afterwards underlet a part of the premises to H., when goods thereon were sold under a fieri facias: Held,</p> <p>1. That under the acts of 1772 and June 16, 1836, W. was not entitled to the payment of one year’s rent out of the proceeds.</p> <p>2. The landlord who, under these acts, is entitled to receive one year’s rent out of the proceeds of the sheriff’s sale, is the immediate landlord of the defendant, either by a direct lease or by a legal assignment of a lease.</p>

IN this case, in which George Pepper was the plaintiff and Samuel Copeland was the defendant, a rule to show cause why the agreement of defendant for a condemnation and venditioni exponas should not be set aside, was granted. The defendant was discharged under the insolvent laws, by the Court of Common Pleas of Philadelphia county, on the 29th January, 1839. This action, Pepper v. Copeland, was brought to September term, 1839, No. 753, and a judgment obtained for $6437 61.

THIS action was brought by Joseph Sylva against Thomas Bond, to June term, 1840, No. 1487.

THIS action was brought by Joseph M. Brown against Edwin N. Bridges and Noah W. Bridges, late copartners in trade, under the firm of E. N. Bridges & Co. The following case stated was filed: “ It is agreed that the following case be stated for the opinion of the court in the nature of a special verdict, with liberty for either party to take out a writ of error on the same. “On the 13th day of November, 1833, the above named plaintiff drew on the said defendants a draft,…

ACTION to March term, 1839, No. 96. The defendant entered a rule for a commission to take the depositions of witnesses at New York, filed interrogatories and named a commissioner. The plaintiff filed cross interrogatories and named a commissioner.

JUDGMENT for the plaintiff was obtained in this case on the 25th July, 1840 (June term, 1840, No. 914). August 1, 1840, B. Duncan entered absolute security for stay of execution, under the act of 16th June, 1836, relating to executions, and shortly afterwards died.

THIS action was brought by-Carroll, executor of Samuel Sterret, deceased, against Henry Nixon. It was founded on the following paper, viz.: “ Philadelphia, 18th March, 1818.

THE plaintiff* had judgment on a scire facias, on a mortgage of several properties. He issued a leva d facias, in which only one was described, and that was sold by the sheriff' for less than the amount of the costs. At the instance of the defendant, a rule to show ;f.ause why the levari facias and sale should not be set aside wl^gmnted.

<p> Rule to show cause why a sheriff's sale should not he set aside. </p> <p>A sheriff’s sale took place on a levari facias under a younger mortgage. The property was bound by a judgment entered on a bond and warrant of attorney accompanying an elder mortgage. Held: that the lien of the prior judgment was divested, and must be paid out of the proceeds, and that the purchaser did not take the premises sold, subject to it or the mortgage which accompanied it.</p>

<p>IN this case Whitnam R. Bennett was plaintiff, and “ William G. Marshal], and E. T. Shaw, now or late copartners in trade under the firm of Marshall & Co.” were defendants.</p> <p>It was an amicable action in case, to September term, 1840, No. 819, entered by agreement, dated and filed October 1st, and judgment was entered in favour of plaintiff for S372.70 by confession.</p> <p>The amicable action and confession of judgment was signed by William G. Marshall only. The plaintiff filed, at the same time, copies of notes given by the firm of Marshall & Co. before its dissolution.</p> <p>Plaintiff issued a fieri facias to September term, 1840. E. T. Shaw obtained a rule to show cause why the judgment shouldn ot be opened as to him, and why the fieri facias should not be set aside.</p> <p>The deposition of William G. Marshall was taken. It was as follows, viz.:</p> <p>“ William G. Marshall, a witness, being duly sworn, according to law, deposes, and says, that the partnership existing between himself and E. T. Shaw, was dissolved on the 16th of April, 1840, according to the paper hereto annexed marked (A); that all of the goods belonging to said partnership were transferred to E. T. Shaw, and that he was to settle all the debts of the firm. Deponent has not had any thing to do with the affairs of the late partnership since the dissolution.”</p> <p>(A)</p> <p>“ The partnership heretofore existing between the subscribers, under the firm of Marshall & Co., Brush makers, is this day dissolved by mutual consent. Edward T. Shaw is duly authorized to arrange the unsettled business.</p> <p>“ Witness, Edward Shaw, [l. s.]</p> <p>Wm. G. Marshall. [l. s.]”</p> <p>“ Blanchard Kimbel.”</p> <p>“ Philadelphia, 16th April, 1840.”</p>

THIS was an action on a bond, commonly called an insolvent bond, in which the defendant was surety.

IN these cases, the Philadelphia Savings Institution were plaintiffs, and Robert E. Smethurst and Peter Fritz were the defendants respectively.

THIS was an action brought by the Philadelphia Bank against Garret Newkirk and Stephen S. Newkirk, copartners in trade under the firm of G. Newkirk & Son, to September term, 1840, No. 1133.

THIS was a proceeding under the act of 12 April, 1828, incorporating the Delaware and Schuylkill Canal Company, to have the damages assessed in consequence of the occupation of the land of plaintiff in constructing their canal. The freeholders appointed by the court assessed the damages at f 1300, The defendants filed the following exceptions to the report of the freeholders appointed to assess the damages: “ First.

<p>IN this matter there was a fund in court arising from the sale of personal property by the sheriff, alleged to have belonged to the defendants, under several writs oí fieri facias, under the following circumstances. There were three judgments in favour of several plaintiffs against the defendants on which writs of fieri facias issued, and which were delivered to, and levies made thereon, by the sheriff in the following order in point of time: 1st, in which A. & Co. were plaintiffs; 2d, in which B. & P. were plaintiffs; and, 3d, in which the Girard Bank -were plaintiffs. After the levies were made, a third person notified the sheriff that the property levied on was not the property of the defendants, but was his property, and offered to exhibit the evidence of his title to the same. The sheriff thereupon required the several plaintiffs to indemnify him for proceeding to sell the property. The first two execution creditors declined giving the indemnity; the third, the Girard Bank, gave such indemnity to the sheriff as he was satisfied with, and the sheriff sold under all the writs, and paid the money into court. He returned to the court specially the facts above set forth, and which were not denied or disputed by the parties litigant. The court referred the matter to an auditor to report distribution of the fund, who reported that the first two execution creditors were entitled to be paid, notwithstanding they had not indemnified the sheriff, and the third, the Girard Bank, had. The latter filed exceptions to the report, in the hearing of which</p> <p>The counsel cited 11 Johns. R. 110 ; 2 Johns. R. 422 ; 13 Johns. R. 255; 16 «S'. & R. 71 ; 15 Johns. R. 147; 8 Johns. R. 185; 6 Bacon’s Ab. 176; 1 Ld. Ray. 252; 4 Bibb 32, 332; 5 Mass. 402; 3 Penn. R. 487; 3 Salk. 319 ; 1 T. R. 729; 2 Bow. 454.</p>

THIS was replevin for a quantity of boiler iron. The declaration was in the detinet and detinuit. The defendant pleaded, “ 1. Non cepit; 2. Property in defendant; 3. Property in Jennings and Craige; 4. That the goods were under execution at the suit of R. A. Parrish, and in the custody of the sheriff of the city and county of Philadelphia at the time; 5.

THIS was an action brought by capias ad respondendum to December term, 1840, No. 35, in which Enoch L. Colcord was the plaintiff, and G. D. Wall was the defendant. Nov. 7, 1340, the plaintiff filed a copy of the note on which suit was brought, as follows, viz.: “ $1050 “ Washington, January 1, 1840. “ Four months after date I promise to pay to Gamaliel Gay or order one thousand and fifty dollars, without defalcation, for value received.

THE facts of the case were as follows: On the 27th November, 1841, judgment was entered for the plaintiff for want of a sufficient affidavit of defence, and on the 28th December following, the plaintiff took out & fieri facias and capias ad satisfaciendum, and delivered them to the sheriff to be executed. On the same day a writ of error was sued out of the Supreme Court, and bail in error put in.

THIS was an action on a recognisance of special bail, to the action on which the plaintiff declared in the usual form. The defendant filed several pleas, to which the plaintiff demurred.