Volume 2 — Pennsylvania State Reports

<p>Error to the Common Pleas of Washington county.</p> <p>Debt on an award, in which the first two counts were on a bond to refer to three, or a majority; and award by two being a majority; the third count set out a bond to refer to three, “ that at the time of signing the bond, it was verbally agreed, that the award of a majority should be final; and that the same was intended to be inserted, but omitted by a mistake of the scrivener, and by the suggestion of the defendant, that the same was unnecessary, that he would not deny his agreement, and if he did, the scrivener could prove it,” &c.</p> <p>Plaintiff then, under objection by defendant, proved the facts averred in the special count, and read the bond and award, which was also objected to. Defendant proved the meeting and qualification of the referees, and that, until the award was made, the plaintiff made no mention of the alleged omission. The court declined instructing the jury that this was a strong circumstance of fraud.</p> <p>These points were the errors assigned here.</p>

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an action on a bail bond, to which one of the defendants pleaded his discharge in bankruptcy. On the trial the plaintiff entered a nol. pros, as to him, and went to trial against the other. On verdict, and judgment, and writ of error taken, this was assigned for error.</p>

The county of Clarion brought assumpsit for money had and received by Wilson and others. The claim was for the difference between the actual cost of scrip purchased for the county, and the price charged. But one point was made here, whether the commissioners were competent witnesses under the following circumstances. They made thA contract with the defendants.

Seibert was a sub-contractor under Rhodes, and. brought this action to recover money received by him on the assigned contract, in which it was agreed that defendant was to receive tire money and pay him. Defendant proved a receipt for $250 in full by plaintiff, dated April 22, 1837.

<p>1. Notice to take depositions under a common rule on three consecutive days, held good, there being many -witnesses; tho substance of the notice being that the examination would be commenced on the first day, and continue during the specified period until finished.</p> <p>2. Appearance and cross-examination waives any objection to tho authority of the examiner.</p> <p>3. The court may appoint any one commissioner under the common rule, and false swearing before him would be peijury". Contra, of depositions taken by consent before unauthorized persons, or out of tho state. Per Gibson, C. J.</p>

<p>The act of April 12, 1842, and March 11, 1843, relative to tax sales, has no effect on cases already adjudicated, for explanatory acts cannot alter or impair vested rights; they are to be so construed as to affect future cases under doubtful statutes.</p> <p>Where an act of the legislature has received a construction, a remedial act will always be construed to extend to future cases: And semble, The legislature have not the constitutional power, by such acts, to impair or affect rights acquired or existing under such a construction.</p> <p>A purchaser from a vendee at a tax sale, having notice, actual or constructive, by ancient improvements, which puts him on inquiry, that the land was seated, not entitled to retain for improvements made by himself.</p>

This ejectment was founded on a sale of Gooding’s estate, to whom a patent was shown and former possession, the original defendant succeeding him. Herod, who was admitted to defend as landlord, offered to show that the patent was obtained for the use of Griffith’s heirs, of whom Gooding’s wife was one, with knowledge to the purchaser, plaintiff, and that he, Herod, had purchased the estate of eleven of the heirs. The court rejected the testimony, on objection, as irrelevant.

There being no bill of exceptions in this case, which was trespass vi et armis, the only error assigned, apparent on the record, was whether the action was rightfully brought by the plaintiff in error. The facts, as'they may be collected from an opinion of the court below, &c., will be found in the opinion of this court.

<p>1. A promise to pay a judgment, if the plaintiff would not proceed further, is a promise in consideration of general forbearance, and on a loss ensuing the guarantor is liable.</p> <p>2. The judgment is conclusive against the guarantor as a party.</p> <p>3. A guarantee without the request of the debtor is without consideration as to him.</p>

<p>1. Evidence of contradictory statements, to discredit a witness examined at the trial, not admissible, unless he is first examined as to such statements, so as to give an opportunity for explanation.</p> <p>2. So of an omission by the witness to state facts in a previous trial between other parties, unless it be shown to have been pertinent to that issue, and then subject to the rule above stated, § 1.</p> <p>3. Purchaser under devisee has notice of a subsequent devise in the same will of a part of the subject of the first devise, though uncertain until election.</p>

<p>A vendee, by articles of agreement, is not bound to restore the possession to the vendor and give up the contract, before he can make objections to the title in an action brought for the purchase money.</p> <p>He cannot keep both the estate and the price of it; but it is the vendor’s business, if he finds that he cannot make such a title as the vendee is bound to accept, to refund what has been paid, and bring an ejectment for the property.</p> <p>The vendee is not bound to accept a title depending on a conveyance to a creditor, where there is evidence to raise a suspicion that the object of the conveyance was to elude other creditors who were pressing for judgments.</p> <p>Nor, if there be a covenant for title, clear of encumbrances, where there are unextinguished ground-rents; and it is error to instruct the jury that the defect may be compensated by a deduction from the purchase money.</p>

<p>Error to the Common Pleas of Westmoreland county.</p> <p>The plaintiff, as purchaser of George Kimmel’s estate at sheriff’s sale, brought ejectment against him. It appeared from the evidence, that Obadiah, a natural son of George, claimed the property under a conveyance from a stranger, and that his father lived in the house with him; but he was not named defendant on the record.</p> <p>To avoid the effect of this conveyance, plaintiff showed that at the time of this purchase, which was subsequent to his judgment, Obadiah was but fourteen or sixteen years old. That his father made the bargain and handed him the money to pay the price. The defendant objected to evidence of a declaration by George Kimmel, that “he would buy land in Obadiah’s name.” The court told the jury the purchaser was entitled to recover, if George Kimmel had‘any beneficial interest in the land; that if he made the purchase at the time, and was indebted, a resulting trust would arise to him; though, as a general rule, such a trust would not arise, where the payment was not with consent of the grantee. Or if the jury found the purchase was with intent to defraud his creditors, they would be entitled to retain it, under 13 Eliz., against Obadiah.</p> <p>The fourth point of defendant was, “That aman indebted is not prevented or prohibited by law from making a present of money, if he has it, to his children, that it is no fraud to do so.” “ We answer that the law is-the reverse of the statement in this proposition.’*’</p>

<p>1. A bond or note cannot be levied on and sold by the sheriff; nor will such sale and delivery pass any title.</p> <p>% Semble: a note deposited in pawn may be attached as a debt under an attachment and execution against the owner; but it is proper to return specifically what goods, &c., were attached. Per Rogers, J.</p>

<p>Error to the Common Pleas of Erie county.</p> <p>Carneghan, being entitled by articles to a conveyance, sold his right to Johns, in consideration of the payment of the unpaid purchase money, and $2020, in four annual instalments to himself.</p> <p>On a judgment for the second instalment, Brewster entered security for stay, &c. On this judgment there was a credit for a surplus under a previous sale.</p> <p>A judgment was then obtained for the third instalment, on which Johns’ interest was sold, and the proceeds receipted for by the plaintiff’s attorney.</p> <p>.These facts appearing on a sci. fa., on the recognisance of Brewster, the plaintiff contended, he had right to apply the money raised under the third judgment to any debt; and having done so, he could not be compelled to apply it to the second judgment, in relief of Brewster; or, at most, he could only have a pro rata share, with all the instalments due. The Court decided the law made the application, on the receipt by plaintiff, to the elder lien.</p>

<p>1. The lines marked on the ground constitute the actual survey, and control the return of the surveyor, even where that calls for a natural or other fixed boundary, though the space between the two be but twelve perches in breadth.</p> <p>2. The 2d section of the syllabus in Mart'/ v. Hartley, 4 Watts, 261, and the dictum on which it is founded, is not warranted by the case then before the court, and is an erroneous statement of the law.</p>

<p>One who has acquired an interest in a debt by assignment is incompetent as a witness in a suit for its recovery, even though he has re-assigned his interest, and pays all the costs into court.</p>

<p>Error to the Common Pleas of Warren count)'.</p> <p>This was a sci. fa. on a recognisance of bail in error, in which the following facts were stated for the decision of the court:</p> <p>A trial was had between Chase and Morse, and verdict rendered March 11th, 1835. A motion for judgment was held under advisement until June term; and on the 5th of June the judgment was entered. Morse died abroad on the 8th of May of the same year, but it was not known until after a wiit of error was issued, in which the present defendant became bail. The judgment was affirmed by the Supreme Court.</p> <p>The court below gave judgment for defendant.</p>

<p>Error to the Common Pleas of Union county.</p> <p>On a sci. fa. on a constable’s bond, against Snapp and others, the plaintiff proved a transcript of a judgment on which an execution was issued and placed in the hands of the defendant, Snapp; that he collected the money and had never made a return. The record does not state by whom it was delivered, nor indeed any thing further than appears above.</p> <p>Defendant offered a transcript of that judgment, on which it appeared that the execution had been delivered to one Crabb, constable; also a transcript of a judgment against Crabb, delivered to the defendant. They also offered to prove these facts by the magistrate. The court, on objection, excluded the testimony.</p>

The plaintiff, having obtained a judgment before a justice, issued an execution and delivered it to defendant, who was a constable. He returned the writ “ served;” an alias was then issued, which was returned with a certiorari. On a scire facias, setting forth these facts, being issued, and judgment thereon, an appeal was taken, and the court on the plea of nul tiel record gave judgment for plaintiff■ this was the error assigned here.

<p>1. A purchaser from one of several trustees for A. for life, remainder in trust, to sell and pay to B., entered under his deed. The statute of limitations commenced running against the whole estate, and twenty-one years adverse possession bars as well the trustee as the cestui que trust tenant for life, and those in remainder.</p> <p>2. As respects strangers, the legal and equitable estate are one, so as to be barred by adverse possession to the legal estate.</p>

<p>In covenant on a bond, sealed by Weld, Pound and Stifiy, defendant showed that the name of McCready, who was one ofthe original obligors, who were sureties, was erased, and Stifiy and Pound added, with consent of all parties but John Weld, who was also a surety. The bond showing this erasure was objected to on this evidence, but received and recovery had.</p> <p>An exception to the admission of the evidence, and the charge of the court, directing the jury that the action would lie, were the points argued here.</p> <p>The pleas are not stated on the record.</p>

<p>1. Declarations, at the time of doing any act, uncertain as to its effect, admissible to prove intent</p> <p>2. Where an improvement was made by a tenant, who was employed by his landlord, as a charcoal-burner on the land; the declarations of the landlord, that he intended to settle and improve the land, are admissible.</p> <p>3. Judgment creditor of one who may be insolvent is a competent witness for him, in a suit for the recovery of land. '</p> <p>4. Whether an improvement was made for the purpose of a continued residence, &c., is for the jury.</p> <p>5. If the settlement was with a design to use the land for making charcoal, or for cutting timber, it would not give an improvement right.</p> <p>6. Settler entitled to a tract in a reasonable shape about his improvement, even though ho may not have marked the lines or boundaries.</p>

<p>Error to the Common Pleas of Crawford county.</p> <p>Debt on a bond dated May, 1842, conditioned that A. would take the benefit of the insolvent law. At the next term, August, the petition was presented, and the second Monday in November fixed for hearing. Nothing further being done, this suit was instituted. The court was of opinion that the act of 1842 discharged the obligation of the bond.</p>

<p>Error to the Common Pleas of Indiana county.</p> <p>Nicholas Elliott, by articles executed in Sept. 1833, agreed with Altimus that he would accompany him to Baltimore, at his own expense, to procure a purchase of three tracts, warranted in the names of Morrell, Hogg, and Baker; in consideration of which Altimus was to advance the purchase money, not exceeding $2000, and procure the titles in his own name; and should he succeed in the purchase, he agreed to sell the Baker and Hogg tract, with all convenient speed, and pay Elliott one-half the net profits, after deducting the original costs and expenses of recovering them; and further, that he would convey one-half the Morrell tract to such person as Elliott should name; in consideration whereof Elliott agreed Altimus should reimburse himself one-half the original costs and expenses of recovering sai-d tract, out of the profits of the sale of the other two tracts.</p> <p>The parties proceeded to Baltimore, and the conveyances were obtained for the Morrell and Hogg tract, and for a moiety of the Baker tract. Elliott gave notice to Altimus to convey the moiety of the Morrell tract, which being refused, this ejectment was brought. It was proved Altimus had sold part of the land for $2500, and received $1300, and rents amounting to $540. His expenditures were about $3260, in procuring titles and expenses. It seems the Hogg tract was not recovered, and the defendant contended he could retain, to satisfy himself for disbursements. The court considering it a case of specific performance, told the jury there was no such hardship in the case as would prevent an enforcement of the contract, and that the plaintiff was entitled to recover.</p>

Moorhead having obtained an award in December, 1843, for $448 13, defendant appealed; on the trial in May, 1845, plaintiff recovered a verdict for $>469 80. The court gave judgment, with full costs.

Dec. 8. — In ejectment, for an undivided sixth of a lot on Seventh street, the plaintiff showed a deed, in 1801,-to Jacob Belsterling, the father of John F., reserving a ground-rent; the will of Jacob, in September, 1815, whereby he devised the residue of his estate, among his seven children in fee, of whom John F. Belsterling was one; the discharge of John F., as an insolvent debtor, in Oct. 1838.

Dec. 19. — Error to the District Court of the city and county of Philadelphia. R. Jones devised, “to my niece, Susan Foulke, the interest arising from the sum of $2000, which sum I request my executors to place at interest, in such a manner as they may deem suitable, and such interest to be paid to her, as and when received ; and in case she shall die without lawful issue, I then bequeath $1000 of the principal sum to my niece R. J. Rutter.

<p>1. A husband may reduce into possession a wife’s legacy, in remainder, during the existence of a life-estate in the property, and thereby acquire an absolute property therein. Yid. 7 Watts & Serg. 168.</p> <p>3. And this, though he be trustee for the tenant for life.</p> <p>3. The foundation of the husband’s right is his power over his wife’s chose, coupled with an exercise of ownership, of which reduction into possession is but an evidence.</p> <p>4. User as his own, at a time ho might have reduced it into possession, will amount to reduction, even if the money was unlawfully converted in the first instance.</p> <p>5. A stranger or remainder-man cannot object to the acquisition of a title, that it would have been a breach of trust, the cestui que trust not complaining.</p>

Dec. 12. — Tompkins purchased two parcels of goods at auction. By the conditions of sale, they were to be paid for before delivery, and taken away in ten days. He took one parcel, and paid for it. ' When called upon for the payment of the other, he refused. The action was for the difference between the bid and the price at a subsequent sale, with notice. The objections were, first, that the contract was entire;.and second, a settlement of the one. bid was a waiver.

<p>Dec. 12. Simpson brought ejectment, for a house on the south side of Pine, between Ninth and Tenth streets. He showed a claim, filed against a house on the south side of Tenth street, below Pine, and judgment thereon in 1830, against the defendant.</p> <p>In 1835, revival by consent. In 1841, a scire facias, reciting a general judgment “ for non-performance of a certain promise and assumpsit,” and judgment for want of appearance, a fi. fa. and sheriff’s deed for the property named in the writ, and for which this suit was brought. There was variance in the other matters of description between the lien and writ.</p> <p>Plaintiff offered to prove they were the same. That the work was done on the Pine street house. That defendant built and occupied the house, and knew it was the one intended to be described in the claim, which was rejected. The court ordered a nonsuit.</p>

<p>1. Certainty to common intent sufficient in mechanic’s claim.</p> <p>2. “ That the contract was made on 16th April, 1841, and the work done between said 16th and 29th August, 1842,” is sufficient, it being a question for the jury, whether filed within six months after completion.</p> <p>3. Repairs and additions may constitute a new erection within the act.</p> <p>4. The addition of one story, and a new building beside the old house, of equal dimen-■sions, the whole being new roofed and weatherboarded, with interior communications, constitutes a new erection.</p> <p>5. An account for liquor, sold on credit by a tavern-keeper, is null within the act; hence the allowance in a settlement of accounts will be no bar to an action.</p>

<p>Error to the Common Pleas of Lehigh county.</p> <p>Dec. 16. — This was an action by Bachert, for a breach of promise of marriage. The plaintiff, under exception, proved, 1st, her own acts, as purchasing furniture, dresses, &c., and declarations of her intention to marry defendant, made at the time, to prove her promise. 2d, Also that she had a child by defendant. 3d, That in conversation with a third person, he had declared he never intended to marry her. The evidence of the promise was, constant visits, during which they were left alone; conversations respecting the disgrace, during which she said, “You know what you promised;” to which he replied, “ It was not his fault.” Also a declaration, “ If he knew she had a child he would have married her.”</p> <p>The exceptions were, to the evidence in the first and second points above; to the charge in submitting the questions of promise by defendant and plaintiff; the readiness of plaintiff, and the refusal by defendant. His honour also stated the action was not for seduction, but on the contract.</p>

Error, to the Common Pleas of Northampton county. Dec. 16. — C. L., in 1802, devised to his wife, Sarah, all his real and personal estate for life, first paying debts, and at her decease he gave the same to his son Jacob. He then directed her to maintain his son.

<p>Error, to the Common Pleas of Northampton county.</p> <p>Dec. 17. — Morris brought an action against the endorser, on a bill of exchange drawn in and on New York, and dated Easton, Pennsylvania. He proved notice of protest, and also, under exception, gave in evidence the protest reciting the fact.</p> <p>Defendant proved the receipt by a witness of the plaintiff, who was an agent of Morris, of certain securities, which, when collected, were to be credited on the note, with the privilege of returning them at any time, and then objected to him as interested.</p> <p>Plaintiff proved an offer to return the securities two years after. He also read the printed statutes to prove the rate of New York interest.</p> <p>The court left the questions of notice, offer to return, and whether by delay in suit any were lost, to the jury, who found for plaintiff with seven per cent, interest.</p>

Dec. 17. — This was an action of assumpsit. The question was as to the defence; the plea was payment with leave. Plaintiff objected to evidence of set-off, for want of notice under the rule of court requiring it, “ where there has been mutual dealings and defendant intends to defalk.” Defendant proved the items of the account were read and taken down by plaintiff before the arbitrators.

<p>1. If plaintiff files two declarations, defendant may demur, or the court may refuse to try, or nonsuit, should plaintiff refuse to indicate which he relied on.</p> <p>2. The evidence of a deceased witness may be stated in substance; the precise words are unnecessary.</p> <p>3. Whether a witness is competent, by reason of intoxication, is in the discretion of the court.</p> <p>4. One not made a party defendant, cannot be objected to as a witness, on the allegation that he is liable to plaintiff.</p> <p>5. Where a witness lias no home or family, his deposition taken out of the jurisdiction, at a place where he was at work, when last heard of, may be read.</p> <p>6. A compulsory nonsuit of a justice is conclusive of the suit, unless appealed from; for, having no power to enter such a judgment, it is equivalent to a judgment that plaintiff has no cause of action.</p>

<p>Error to the Common Pleas of Northampton county.</p> <p>Dec. 18, 19. — Plaintiff was assignee for creditors of certain railroad iron, sills, &c. On the trial of an action of trespass against the sheriff and another plaintiff in a foreign attachment, for seizing the property under the writ, he offered the return of the defendant, as sheriff, to the writ: “ Attached twenty-four pieces iron rails, &c., in the possession of J. Stetller, and summoned said J. Stettler as garnishee;” and proved admissions that this wras the same property.</p> <p>The return was made on the representations of one Hartz, who took an account and-forbade the hauling away by teamsters.</p> <p>The deputation of Hartz was special in the suit of a stranger, at request of the plaintiff there.</p> <p>It was not shown under what title Stettler had possession; defendant gave no evidence.</p> <p>The court charged: There must be an actual intermeddling or touching, unless the return was conclusive, which it was "not, but might be rebutted.</p> <p>The exceptions were to the charge, and to the ruling in the case of a witness, who was an attorney and had ceased to practise for fifteen years, and kept the books of the sheriff, that all communications between himself, as counsel, and the sheriff, were protected.</p>

<p>1. Ground-rent is payable out of proceeds of sheriff’s sale, under a lien acquired before the rent became due, but without interest.</p> <p>2. Judgment to cover future advances is valid, but if the creditor gives a statement of the amount then due, to enable the defendant to borrow horn another, he is estopped claiming beyond that amount.</p> <p>3. It seems, future advances will not be preferred to liens attaching before such advance is made. Per Kennedy, J. If there be an obligation to make the advance, Query.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>Dec. 22. — Mitchell brought ejectment against three. The sheriff returned non est inventus as to McCredy, and served, as to the other two, and thirteen terre-tenants. Appearance was entered for McCredy, and a general plea on atwo day’s rule, with notice at bar. The jury were sworn generally. A sheriff’s sale subsequent to the writ having destroyed the plaintiff’s title, the court directed a verdict for nominal costs and damages.</p> <p>After verdict, plaintiff entered a nol. pros, as to all but the two defendants served, and judgment was entered.</p> <p>The exceptions were, 1. To the judgment, plaintiff having no title at the time of the trial. 2. No evidence of the possession of McCredy. 3. No issue as to several defendants. 4. Entering nol. pros, after trial.</p>

Dec. 24. — The plaintiff took judgment by default, in foreign attachment, for the penalty of a bond to the sheriff for appearance, and issued scire facias against the garnishee. The court charged he could not recover, not having ascertained the true amount due on the judgment.

<p>Error to the Common Pleas of Bucks county.</p> <p>Dec. 26. — Hughes brought assumpsit on a note, dated August 28,1837, at thirty days. On the 12th December, 1837, it was endorsed specially, and by successive special endorsements came to'plaintiff. Under plea of set-off, defendant showed plaintiff’s note of September 21, 1837, at one day from date, endorsed in blank, and proved that some time in 1838 he was the holder. The evidence was admitted, and raises the question in the cause.</p>

<p>1. An executor, defendant, cannot be a witness to charge himself, thereby discharging-the land of a devisee, co-defendant, of the decedent’s debts.</p> <p>'2. An executor, being a man of business, and a neighbour of a creditor of the decedent, who was an aged, weak, and illiterate woman, induced her to take his own bond in lieu of one creating a lien on the estate of a devisee, falsely representing the amount of the liens against his own estate. A court of equity would set aside the transaction, and hence she may sue on the original bond.</p> <p>3. Semble, Such a false representation would have avoided the contract between persons in equal situations. — Per Rogers, J.</p> <p>Semble, The mere payment to executor, by devisee, of the amount of decedent’s debts, will not discharge the land; nor will a refusal to accept the amount, because it was paper money, impair the right of the creditor. Ibid.</p> <p>4. Nor is ignorance as to the truth or falsehood of the assertion, in the person making it, of any consequence. Ibid.</p> <p>5. Ignorance or mistake in law may afford some inference of imposition, though in itself it cannot be relieved against. Ibid.</p> <p>6. Semble, One cannot take advantage of a release or discharge obtained through the fraud of a third person, even though he was not .a party thereto.</p>

Dec. 26. — -The case arose on an issue whether a certain paper was the will of John Robbarts. The paper purported to be so was in his handwriting, dated in 1838, and signed thus — S©febar4sr Its execution was proved. John Robbarts died December, 1844.

<p>Error to the Common Pleas of Bucks county.</p> <p>Dec. 27. — Henry Atherton died in December, 1839, leaving Thomas and Charles sole heirs. Thomas administered. Charles held a bond of his father, which, in January 1840, he assigned to Jones, who brought this action in Charles’s name, to his use against Thomas, as administrator ; and recovered judgment 2d May, 1843.</p> <p>In May, 1840, Charles conveyed his estate in his father’s land to Thomas, in consideration of his paying intestate’s debts.</p> <p>In 1841, Thomas assigned in trust for creditors, and Eyre purchased the land of intestate at the sale by assignees.</p> <p>In February, 1844, execution was levied on this land under Jones’s judgment.</p> <p>In April, 1844, Thomas filed an account as administrator, claiming a balance, and Charles, as heir of Henry, assented to the above judgment, and released all errors, &c.</p> <p>On the application of Eyre, the court set aside the levy, which is the error assigned.</p>

<p>1. A private nuisance may be abated by any one whose property is injured, and entry for such purpose is justifiable.</p> <p>2. A public nuisance may be abated by any one.</p> <p>3. A turnpike company, having erected a toll-house partly on the land of another, under license in consideration of user of the road by such owner, abandoned the house as a toll-house, and removed the gate. Held: It becomes a nuisance both on the road and on the land, and may be removed by any one injured.</p>

Dec. 30, 31. — Baker filed a petition, on the equity side of the court, setting forth a conveyance to the defendant and others, with verbal directions as to the distribution of the property, that by an agreement between defendants as trustees, and the relations of the grantor, a certain sum was to be paid to' petitioner, William and Walter Green and others, “the excess to be distributed among the parties ;” that petitioner was entitled to the shares of the Greens and others,…

Dec. 31, Jan. 2. — This was an ejectment by Tyson, the vendee, against the vendor, under articles.

Jan. 3. — Reece and Painter were the owners of improved and enclosed tracts of land, adjoining each other, separated by a partition fence, which had been maintained for forty years, by the respective owners, at their joint expense. A private lane ran along this fence, on Painter’s land, with a three bar fence enclosing it. A public road was laid out through both farms, crossing this lane at right angles.

<p>Appeal from the Orphans’ Court of Chester county,</p> <p>Jan. 5, 6. — Pennock, by his will, gave his real and personal estate to be possessed and enjoyed by his wife for life, or during widowhood, “ to be used and applied to maintenance and support of his children, and at her decease or marriage, should either take place before they come of age, then among them equally.”</p> <p>By a subsequent will and codicil, revoking all others, he gave, after payment of debts, “the use, benefit, and profits of his real estate to his wife for life, and also all his personal estate of every description, including ground-rents, bank stock, &c. &c., absolutely, having full confidence that she will leave the surplus to he divided, at her decease, justly among his children.” He then made specific bequests of his real estate to his children; and annuities to each of his daughters out of his personal estate, during the life of his wife, to cease on their marriage. He then recommended the children to remain in the family with their mother, expressing a confidence they would have a comfortable home. By the codicil he directed an appraisement of the real estate, as soon as convenient, after one of his daughters came of age, and directed that if the marriage of any child, or education 'of his son, should make an addition to his wife’s income necessary, certain real estate should be sold, and the proceeds placed at the disposal of his wife for the benefit of his children, as she should judge prudent. He then expressed confidence in his wife’s discharging the duties of a mother, and a desire that they would manifest filial subjection and attachment, with many expressions of affection to both wife and children. On the death of the wife, the husband of one of the children petitioned for a citation for the settlement of the widow’s accounts, as surviving executor of the testator. The petition stated she had made a will. That testator’s real estate was large, and the personalty exceeded $110,000. The executor of the widow demurred, and the court dismissed the petition.</p>

<p>Certiorari to the Quarter Sessions of Philadelphia.</p> <p>Jan. 6, 7. — On the complaint of Elizabeth Pratt, charging the defendant with desertion of his daughter, and refusal to give her reasonable support, whereby she is likely to become chargeable to the county, one alderman issued his warrant, and the defendant was held to bail to appear at the quarter sessions. The guardians of the poor presented their petition at the next term of the January Quarter Sessions, (1845,) stating the separation and desertion of his wife and two children, leaving them a charge, and praying maintenance.</p> <p>It was agreed the complaint should be considered as originally entered for the desertion of the alleged wife and children.</p> <p>Defendant denied the marriage.</p> <p>The court ordered the maintenance, one judge only signing the order. This, with the opinion annexed, was treated as showing that one judge only heard the cause; a fact not denied; the record, otherwise, did not show how many sat.</p>

<p>A landlord may, at liis election, treat a tenant holding over, after a term, as tenant from year to year, or as a trespasser.</p>

Jan. 9, 12, 13. — Elliott, a trader, on the 23d Sept., 1841, made an assignment to defendant, reciting his inability to pay his debts, for his creditors generally, “ without any preference or priority,” with a proviso, that no creditor should be entitled thereunder, who did not release, at a day certain; seven-eighths in value released. In February following, he was discharged as an insolvent, and plaintiff appointed his trustee.

<p>Error to the District Court of the city and county of Philadelphia.</p> <p>Jan. 13, 14, 15. — Andrew Craig brought replevin for three hundred and fifty hogsheads of molasses and twenty-five hogsheads of rum, of the value of $9000. The pleas were non cepit, and property in defendant.</p> <p>On the trial before Pettit, president, plaintiff produced H. Craig, who on his voir dire stated, that his firm had sold the property to plaintiff, which they had previously purchased from Smith, in payment for which certain notes were to be returned to Smith, which notes were endorsed by the firm to plaintiff. A deed was then read, dated January 9, 1840, assigning a debt due by Smith to witnesses’ firm of $9099 63, and the notes for the same and all other securities, together with the rum and molasses. Also a release by plaintiff dated May 11, 1840, to said firm, of all causes of action by reason of any affirmation or warranty, &c., arising out of said sale, and all defences to any action for the price. Also a general release, January 11, 1844, to the same parties. Defendant objected to the witness as incompetent, from liability on the endorsement of his firm, which was overruled and exception taken. The sale by Smith was in payment of a debt on condition of the delivery of Smith’s notes. To enable witness to do this, he sold to his brother, the plaintiff, who took up Smith’s notes, and made a tender and demand next day after the alleged sale, which being refused, this suit was commenced. The two partners of this witness were subsequently examined without objection. As the rest of the case is not noticed by this court, it is omitted here.</p> <p>The only point argued here, which this court decided, was, whether the witness was competent, in which was considered the exception; and whether other reasons than those assigned below could be assigned here.</p> <p>This case was argued at a former term, and now re-argued by F. W. Hubbell, for plaintiff. — On the incompetency of the witness premising the other evidence showed a transaction entirely different in its nature, and this witness, alone relied on to make out the essential facts in the cause, was the real party in interest — the machinery to convert him into a witness being the sale and releases. It is a question of judicial policy whether such an arrangement will be permitted. The late cases have removed the line separating us from the rest of the world, established in Steel v. Phenix; and the reasoning and language in these cases, Post v. Avery, 5 Watts & Serg., &c., is almost the same as in Bell v. Smith, 1 Dow. & Ry. 846 — 854, where a partner was not allowed to be witness in a suit on a policy in the name of the broker, the firm being the parties in interest, though he had released his interest. The succession of assignments, relied on there, appears here, and that case settles the policy of law, and extends far beyond parties to the record.</p> <p>The doctrine of Steel v. Phenix, 3 Bin. 306, had been recognised in many cases, the courts saying the reasoning could not be refuted, though it failed to convince. But in all these there were corroborative circumstances; when a case occurred, so glaring that the court in Post v. Avery vindicated the rule of common sense, followed by Licper v. Pierce, 6 Watts & Serg., and Patterson v. R.eed, 6 Watts & Serg. 144, and established that an assignment, to make a witness out of a party in interest, could not avail. Such was the case here, for would the plaintiff have purchased a lawsuit without discount for any other purpose ? Is he subject to the imputation of champerty, is the true ground of the rule, and that exists at common law. Thurston v. Percival, 1 Pick. 416 ; Key v. Vatere, 1 Hammond, 132. Smith having denied the bargain, it became a mere chose, and incapable of sale. He then proceeded to argue the witness was unsustained by other testimony. Though the ground of exception be incorrectly stated, it is immaterial, as the point taken was interest, though it appears in a different way from that taken.</p>

Jan. 15,16. — On the 24th February, 1844, appellant filed a petition, stating that in 1833, his younger brother Catchick died in Calcutta, and letters of administration there and in London were then granted to appellant, who also administered in Copenhagen. In 1837, he came to Philadelphia to administer on the estate here, and to attend'to his own family’s interest, under the will of his grandfather, under which his brother derived his estate.

Jan. 17. — Rule to show cause why defendant should not appeal from award without payment of costs in this action, which was assumpsit.

Jan. 19. — This was an indictment under the act July 12th, 1842, sect. 21, Pamphlet Laws 345, which provides, that “ every person who, with intent to cheat or defraud another, shall designedly, by colour or any false token or writing, or by any false pretence whatever, obtain from any person any money, personal property, or other valuable things, shall, See.and it alleged that the defendant falsely, Sec., “pretended to, &c., that he possessed a capital of'$8000; that said…

Jan. 21, 22, 23. — In 1794, Boudinot et al. being seised in fee of a lot at the S. W. comer of Lombard and Seventh streets. Sixty-two feet on Lombard street, by one hundred and two feet deep, conveyed the same to Cadwallader Griffith, reserving a ground-rent of |84 53. In 1796, Griffith conveyed to Conner lots numbered 3 & 4 in the plan A, reserving a ground-rent of $53 33, with clause of distress and re-entry, and covenanted against the paramount rent.

Error, to the District Court. Jan. 26. — The question in this case was, whether the defendant wa-_ liable as surety on an insolvent bond. The jury found a special verdict, and the court below gave judgment for defendant.

Error, to the Nisi Prius. Jan. 26. — This action was on the endorsement of certain instruments in the following words:— “ The Philadelphia Loan Company promises to pay R. Morris or order, $1000, three months after date : being a deposit made by him with the Company, bearing interest at the rate of — per cent, per annum, payable at the office of the Company. “ T. Moore, Cashier, Geo. S. Sohote, President.” Endorsed by defendant.

<p>1. The proper course, on failure to file a warrant of attorney, is to stay proceedings, not quash the writ.</p> <p>2. Where a general authority was given by the owner and chief of a trading “ institution,” to a factor residing abroad, as chief of a branch house, on all matters connected with the house, he is authorized to institute a suit in the individual name of one of his principals, without evidence that the property belonged to the “ institution.”</p>

<p>1. It is not sufficient to admit an insolvent petition from one under whom the other party claims, that the names are identical, and twenty-five years having elapsed since the filing thereof.</p> <p>2. When the title is incomplete, under the statute of limitations, in one either a trespasser or with colour, admissions of facts by him are evidence to show possession is not held adversely.</p> <p>3. Admissions of independent facts, even though in an offer of compromise, are evidence, though concessions for the purpose of a compromise in a treaty would not be so. GiBsoir, O. J.</p>

<p>1. To call an attorney a cheat is. actionable, even though an indictable offence be not imputed.</p> <p>2. Counsel, employed by a prosecutor, acts for the attorney-general; and, in assenting to the discharge of an accused, must be guided by his own judgment on the evidence, of the innocence of the party, even though it be contrary to the oath of the client.</p> <p>3. And in such case he is entitled to compensation.</p> <p>4. Refusal to permit defendant to withdraw a plea of justification to an action of slander, is not a subject of writ of error.</p>

<p>Error to the District Court of the city and county of Philadelphia.</p> <p>Jan. 30,31. — This was an action for ground-rent. The first count was on the covenant; the second on a verbal contract, averring possession taken thereunder by the defendant; the third for use and occupation, and the fourth for interest. Pleas, non est factum and nil debet. The main question was the effect of an alteration of the deed. After the originals and counterparts were executed, they were left at the office of an alderman, before whom they were acknowledged, and taken away by defendant’s brother, for the owner. At the request of plaintiff’s agent, the deeds were returned to the scrivener employed by defendant to draft them, to be recorded. This person purchased the -rents, but did not take a conveyance to himself; when he sold they were conveyed to his vendee. After they had been thus returned, the words “ within ten years” were inserted in a blank left in the printed deed, in the redemption clause, by a clerk in the scrivener’s office, but by whose direction, or whether before the purchase by the scrivener, was the point submitted to the jury. The contract for the conveyance in consideration of these rents was proved. The real plaintiff was a bond fide purchaser, to whose use this action was brought in the name of the original covenantee. His honour, Jones, J., told the jury, a delivery might be made without formal words, and left it to them to say whether leaving the deeds with the alderman, and possession taken by defendant, with consent of plaintiff, was a sufficient evidence of delivery. Second, If the plaintiff, or any one by his authority, or the scrivener after purchasing, made the ■ alteration without defendant’s consent, it avoided the deed, and recovery could not be had thereon. Alteration by a stranger would not affect it; a bona fide purchaser could not recover on this deed if thus avoided; that use and occupation would not lie. The jury found for defendant.</p>

<p>The holder of a certificate of deposit having commenced a ¡suit by foreign attachment, surrendered it and took new certificates, the action cannot be maintained thereon.</p>

<p>Appeal from the Nisi Prius.</p> <p>Feb. 3. — A treasury note in the following form:</p> <p>“ 11 March, 1841.</p> <p>“ The United States promise to pay, one year after date, to Corcoran & Riggs, or order, Five Hundred Dollars, with interest, at the rate of six per centum.”</p> <p>Was stolen after being cancelled by the United States, and the words of cancellation having been obliterated, was put in circulation, and a bona fide holder endorsed it to defendant’s order for safety; on demand, the interest was paid by the United States, and endorsed thereon. Defendant then sold the note and endorsed it without recourse, and interest was again paid.</p> <p>When the fraud was discovered by the government, and payment refused, the plaintiff sued on the endorsement.</p> <p>The court gave judgment for the plaintiff.</p>

<p>Error to the District Court of the city and county of Philadelphia.</p> <p>Feb. 3, 4. — Trespass for mesne profits. On the trial before Jones, J., plaintiff gave in evidence the proceedings in an ejectment, in which the writ issued February 3, 1843, and judgment was obtained March 22, 1844, and claimed for the profits between these dates, having proved the value. Defendant showed an ejectment against the vendor of plaintiff for the same property in which the writ issued 24th July, 1841, and a judgment followed by a hab. facias possessionem, executed. The court being of opinion that the first ejectment was conclusive as to the mesne profits, until actual eviction under a subsequent judgment, on the authority of Postens v. Posteas, 3 Watts & Serg. 182, directed a verdict for defendant.</p>

Feb. 4. — In September, 1833, Jackson being then married, but having no children, made his will, giving all his estate to his wife, and in case he should leave any children, he gave the tuition and guardianship of them to his wife, who survived him, during their minority. Testator left children, and real estate in another state, and personalty here, and the question was, whether the 15th section of the act, 8th April, .1833, produced an intestacy as to these children.

<p>Appeal from the Common Pleas of Philadelphia.</p> <p>Feb. 4. — The trustees of Isaac Jones filed their accounts, admitting a debit of $13,463 43, and claiming credits, leaving a balance for distribution of $1079 50. Three items were contested and admitted by the auditor and the court, and this appeal taken; they were,</p> <p>1. Commissions at 5 per cent, on gross amount of sales, which composed the debit of the account from which these commissions were deducted. The evidence was, that the services were considerably more than ordinary ones; and that the charge was fair; the charge was not much contested.</p> <p>2. For drawing a deed - - - $150</p> <p>For drawing a deed-poll - - _ 50</p> <p>The first was a deed by sixteen parlies, containing numerous recitals; twenty-one parcels of property, and covering five and a half largest size skins of parchment. Evidence of conveyancers proved it to be usual and fair.</p> <p>The second was a deed by the sheriff, and services attending thereon ; the mere drawing was considered worth $25 or $30.</p> <p>3. Alien of the district of Spring Garden for-paving, iron pipes, &c., made in 1829, 1831. The property was divided into several lots according to a plan. Some of these lots had been previously sold by the sheriff; and it was contended that the lien, being a general one, must be considered to have been paid to the amount of the gale. The question was, whether the remaining lots were liable. The auditor apportioned the claim upon the lots according to their size.</p>

<p>1. Commissioners of Kensington have no claim for curbing, paving, &c., on the property adjacent, when the improvement exceeds the limit allowed by the legislature.</p> <p>2. Nor does the act of 1843 disable the parly to plead such excess of authority in defence.</p> <p>3. A limitation of authority, by a proviso, is a negation thereof.</p>

<p>From the Orphans’ Court of the city and county of Philadelphia.</p> <p>Feb. 4. — Testator residing here, bequeathed his wife $20,000, to be paid her as soon as practicable after his decease; and to the creditors of G. F. & Co., $5000, of which firm he had been a member' — but the debts had been released. He left no real estate in Pennsylvania. The estate was insufficient to pay the legacies. The widow claimed interest from the death of testator. The auditor allowed it, but the court set aside the report, and the widow appealed.</p>

Feb. 5. — This was a sci. fa. by the township for curbing and paving on Council’s property. The claim was filed February 15th, 1843, against a lot and two houses. The items were dated 1831, 1832, 1833, 1837. The court below gave judgment for the plaintiff on the verdict. The points relied on were, 1. The want of apportionment. 2. That this lien does not come within the act of 1840, 16th April, which is prospective merely; and that the lien is filed too late.

Feb. 5. — The question here was whether the presumption of payment from lapse of time wras rebutted. A judgment was recovered in 1814. The present sci. fa. issued in 1842. The plea was payment.

Jan. 24. — The question, here was as to the right of executors to receive the redemption money on a ground-rent.

Feb. 24. — This was an action on the case for the destruction, by a mob, of a school-house, the property of the plaintiff, formerly used by the Sisters of Charity, and occupied at the time. The plaintiff was the pastor of St. Michael’s Church, and resided in the parsonage, but had been absent tor some time. He officiated in the church on the 5th, and the next day went into the country, some miles from town — no disturbance having then taken place.

Feb. 24. — The action and defence was the same as in Donoghue v. The County. The house was not directly fired by the mob, but a neighbouring building having been set fire to by them, the conflagration spread and consumed the property, for which the action was brought.

<p>1. If a feme give a warrant of attorney to confess judgment on her bond, and afterward marries, judgment may be entered against husband and wife.</p> <p>2. The practice is to move the court for leave on filing an affidavit of the facts and a declaration, and unless loss would accrue, to give notice also to the husband; but that was not required in this case.</p>

Feb. 25. — In May, 1835, plaintiff purchased of defendants bills on London for ,£7000. By an agreement, then executed, these were to be drawn at one hundred and eighty days’ sight, and not to be negotiated but to the eastward of the Cape of Good Hope. The defendant was to give his note at twelve months, at the rate of $5 for ¿61.

Feb. 25, 26. — This action was on a note, given for the purchase money of stock in the town of Bellefontaine.

Feb. 22. — B. F. Brewster moved for an allocatur on writ of error to the Quarter Sessions. In support of the rule he stated two grounds : 1. The indictment, which was for assault and battery, &c., was defective in not containing any words to distinguish it from an ordinary trespass. [Chief Justice. — We never grant a writ of error in criminal cases for mere technical matters not going to the merits.] 2.

<p>1. An allotment on Schuylkill Front street, on Holmes’s map, to a first purchaser, with proof of an allotment of a square, according to the present plan, to twenty-five persons, of whom this first purchaser was one, with title from him and possession had for forty years, is evidence of a possession sufficiently ancient to support the title without proof of actual location by warrant and survey.</p> <p>2. But such ancient possession merely is not sufficient to raise a presumption of a grant in favour of the same party in his own right, for more than his own quantity, as a first purchaser, against the Commonwealth or its grantee, for, per Serg-fant, J., this would require another presumption, namely, of a conveyance from some other first purchaser, which cannot be made from a mere possession encroaching on the proprietary or Commonwealth.</p> <p>3. The act of 1781 was directed against intruders without colour of right, not against persons in possession, or entering within seven years thereafter, and holding under first purchasers.</p> <p>4. Warrant and survey not necessary to title of a first purchaser to an appurtenant city lot.</p> <p>5. An extract from a paper in the land-office, if it appear to contain ail that relates to the subject in controversy, (as an entire square,) is evidence.</p> <p>6. Nor is it necessary it should show by whom or when made, for the presumption is in favour of regularity.</p> <p>7. An objection that a paper “ is not original” is a waiver of any defect in the acknowledgment, when the paper is a certified copy of a deed from the recorder’s office.</p> <p>8. A surveyor permitted to state where he would locate a warrant similar to that under which defendant held.</p>

<p>March 4. — The administrator, settling his accounts, proved that certain debts in the appraisement were either paid in the decedent’s lifetime, or were valueless. The item was allowed as a credit. The furniture was appraised at $211 75; it had been left with the widow. This valuation was reduced $22 71. The auditor refused to hear testimony to reduce the valuation of such articles as the widow was entitled to under the act of Assembly, the estate being insolvent; and after deducting the appraised value of such articles, charged accountant with the balance of appraisement.</p>

<p>Testator bequeathed to his debtor legacies larger in amount than the debt; the payment of which, he directed was to be made when entirely convenient, free from the charge of interest, and named him executor; he also released another debtor from interest for twelve months after his decease. — Held, the amount of the executor’s debt could not be deducted from the commissions charged on filing his third account</p>

This was an action on a promissory note given by Henderson for merchandise.

<p>Appeal from the District Court.</p> <p>March 6. — The Mechanics’ and Tradesmen’s Loan Company entered judgment on warrant of attorney, in November, 1837, on which a scire facias was issued, reciting the original judgment and that execution remained to be done, and commanding the sheriff to warn defendant to show cause why plaintiff ought not to have execution. On this, judgment was entered in March, 1842. . Appellants subsequently obtained a judgment, on which the property was sold, and the question was as to the lien of the Loan Company, which the court decided bound the property.</p>

<p>Land was sold on a judgment obtained after the registry of a mortgage, which was the first encumbrance, and before the entry of the judgment on the bond, accompanying tho mortgage. The lien of the mortgage is not discharged, and the proceeds are to be applied to the judgments, according to priority.</p> <p>Notice of the mortgage given by a judgment creditor, at the sale, and that the judgment had been entered, and was in process of collection, is immaterial, for the purchaser had constructive notice by the registry and record.</p>

<p>March 9. — On the trial of this ejectment before Gibson, C. J., after the plaintiff had shown title, the defendant, for the purpose of proving that two verdicts and judgments out of three had been in his favour, showed title in Man the elder, with the record of an ejectment against him by the present plaintiff, in which the judgment was for defendant. The plaintiff objected, because the suit was not between the same parties. Defendant then showed a conveyance, in consideration of natural love and one dollar, by Man the elder to Man the younger; he also showed the record of an ejectment by Man the youngér, immediately after the execution of this deed against Drexel, in which the judgment was for plaintiff. Plaintiff' objected to this, and offered to show, in support of his objection, that Man the elder was examined as a witness on the trial. Defendant then proved that on the trial of the ejectment between Man the younger and Drexel, the record of the recovery by Drexel against Man the elder, which was the second of the three ejectments, was used and relied on by the present plaintiff. This was objected to, but admitted to show an affirmance of the principle by Drexel, which was here set up by Man the younger. Plaintiff then offered to show', that on the trial of the third ejectment, Man the elder wras examined as a witness by Man the younger, and also offered to prove that his title was the better one, but the court rejected the testimony, being of opinion the two judgments were conclusive. The plaintiff then suffered a nonsuit, with leave to move, &c. The motion wras refused, and a bill of exceptions signed.</p>

<p>Certificate from the Nisi Prius.</p> <p>March 9. — Drexell brought trespass for mesne profits from the 24th July, 1841, to the 19th Jan. 1843; and on the trial, before Kennedy, J., showed a record of a recovery in ejectment for the land, in which the writ was served on the 24th July, and the hab. fa. poss. executed January 19th; and having proved the value, closed his case. Defendant offered to show: 1. That he was a bona fide purchaser, and entitled to defaulk for improvements. 2. That he held under a legal adjudication. 3. That he was not such a trespasser as to be liable in this case; and to do this by the record of a recovery by him from plaintiff in a previous ejectment. The court received it for the first two points only, and defendant excepted. For the same purposes only the court admitted evidence of a purchase 'at sheriff’s sale, by defendant, on a judgment against Dyott. He then offered to show that on the trial of the first ejectment, plaintiff gave in evidence the same record, sale, and evidence, on which he recovered in the second ejectment, and that the title established in the first ejectment was the same tried in the second, on which plaintiff recovered. His honour rejected the evidence.</p> <p>In addition, he offered to show that the right of defendant to the mesne profits, if he ever had any, had been since extinguished; and that it had been finally determined at law, that the title to the premises was in the defendant, by evidence of a conveyance by defendant, an ejectment by such grantee against plaintiff, in which the same title was in controversy, and a recovery, &c., had by his grantee against plaintiff. His honour rejected the evidence. He then proved the payment of taxes and repairs.</p> <p>Plis honour instructed the jury, that the plaintiff was entitled to recover in this action the mesne profits of the premises in question, during the time which he claimed in this suit; that the record of a recovery given in evidence by the plaintiff was conclusive, and could not be controverted; that the jury might give the plaintiff interest from the commencement of the present suit, if they thought proper; that interest was a matter for them to decide according to their discretion.</p>

<p>Devise of land in trust for A., B. and 0. for life, remainder to their respective children according to appointment; and in default thereof, equally among them, with cross-remainders. A private act authorized a sale on ground-rents, redeemable or irredeemable ; the trustees giving security on receipt of the money paid in redemption, to be applied according to the trusts of the will. The act is constitutional, and the court will' enforce a contract of purchase from the trustees.</p>

<p>A party to a sealed note is competent to prove an extension of time to liimself, thereby discharging another party who was a surety, under the pleas of payment, and of this fact specially.</p> <p>To discharge a surety by extension of the time of payment, there must be not only a sufficient consideration, but the time must be definitely fixed; hence an agreement to delay for an uncertain period — as until some time in the summer — will not discharge him.</p>

<p>1. Trespass for an injury to timber during the possession of lessee for years cannot be maintained by the landlord.</p> <p>2. A landlord cannot maintain trespass for cutting timber as to which his lessee was restricted. — Mita', had it been expressly reserved in the lease.</p> <p>3. An answer to a point stating facts, assumed without e-vidence, if calculated to mislead the jury, is error.</p>

<p>A demise at will, in consideration of services rendered annually to a religious society as foresinger and organist, is not within the act of 1772, for uncertainty in the rent.</p> <p>Under this act, the determination of the term must be distinctly found; it is not sufficient for the inquest to find a tenancy at will, and a notice to quit prior to the commencement of the .proceedings.</p>

March 19, 20, 21. — This was an ejectment on the legal title, which defendants resisted under articles, by which plaintiff covenanted to convey to W. and H. and N. H., guardian of A. and P. H., by deed, on or before the 1st September, 1839, and also to give the stock, with certain exceptions; in consideration of -which defendants agreed to pay §900; §300 on the 1st April, 1842,1845, and 1849, without interest, which was to be done by notes payable on those days, in favour of…

March 21. — Stahl, by his will, gave all his furniture and loose property, except bonds, mortgages, &c., to his wife, absolutely, with the use of his land so long as she remained his widow. The rest of his personal estate was to be placed at interest, and his executors were to pay her the interest so long as she remained his widow and bore his name.

From the Common Pleas of Montgomery. March 23. — The question here was on the distribution of an estate assigned for creditors generally. At the time of the assignment, there were several judgments and other liens on the real estate. The assignees declined to sell, being uncertain whether the purchase money would pay these liens and enable them to make title. The lien creditors agreed they should sell, reserving their right to the proceeds, which amounted to about $44,000.

<p>An attachment in execution and scire facias having been served on the original defendant, and the garnishee; the jury should be sworn as to the garnishee alone, on the trial of the issue on’the plea of nulla bona; for though both parties are required to be served, the proceedings arc distinct</p> <p>On such an issue, the original defendant is a competent witness for the garnishee; for they have contrary interests.</p>

March 23. — This was an ejectment by infants by their guardian, for land devised to the children (plaintiffs) of testator’s daughter after her decease, subject to $2000, with interest from his death.

March 24. — The assignees of A. conveyed to Brower, in fee, April 1, 1843. Zimmerman purchased at sheriff’s sale, under a judgment, in January, 1844, against Brower, and on this title-brought ejectment. The defendant showed a deed, in fee, from Brower, dated April 1, 1843.

McKee brought trover for seven canal boats. He proved they were sold by the sheriff on the 1st October, 1842, as the properly of the Sugar-Loaf Coal Company, and purchased, and taken possession of by Taylor, as the agent of the bank; notice of title having been given at the sale. He then proved he had purchased from the company, and that their agent had agreed to credit the debt due him on his account for the boats.

<p>1. Where there was a contract for the-purchase of a boat, to be paid for in- freights, entries made by the purchaser of the delivery of goods to strangers, coupled with proof that during the time when the entries were made the purchaser carried for no one but the vendor, are not evidence; no charge being made against the vendor, and entries of the party not being generally admissible to prove performance of a special contract.</p> <p>2. A copy of an account taken from a book, from which a settlement had been made, was delivered to the party, and retained five months without objection; a copy of that copy, and the book from which it was taken, showing the same balance, are evidence.</p> <p>3. The owner of a canal boat is liable for provisions and necessaries furnished and charged to the captain of the boat.</p>

On an appeal by Humphreys, as administrator of John Wilson, from the decree of the Orphans’ Court of Montgomery, this court appointed an auditor to settle and adjust the distribution account between the executors and the parties entitled to the residue, and make distribution. From the auditor’s report two of the claimants appealed. The case was this : John Wilson, by his will, in 1825, gave his estate among his nephews and nieces.

<p>1. Judgment, of which the consideration is a previous unsatisfied judgment, good against creditors.</p> <p>2. Unless a party claim a benefit under a composition deed, he is not bound to notify the creditors that he holds securities of the debtor.</p> <p>3. Two papers being produced on a call by the other party, both or neither must be read.</p> <p>4. After a fi. fa. issued, A., who held collaterals in trust for an execution creditor, and was also assignee of the debtor, received money on account of the collaterals; a subsequent execution creditor cannot compel the application of that money to the debt thereby secured, but the assignee may retain it for the general creditors, subject to the obligation to satisfy any deficiency under the execution.</p> <p>5. Whether the execution creditor really mean to obtain his money, is the question, in deciding whether it is fraudulent as to other creditors.</p>

<p>Certificate to the Nisi Prius.</p> <p>March 31. — J. Philip De Haas in 1786 devised, inter alia, one moiety of a house and lot to his son John Philip De Haas in fee, the other moiety to his daughter H. Craig, wife of W. C.,for life, and from and after her death, to such child or children as she now hath, or hereafter may have, their heirs and assigns, as tenants in common; provided “ if my said daughter shall happen to die without issue, that then,-and in such case, the same shall go to my said son John Philip De Haas, his heirs and assigns for ever.”</p> <p>On a judgment against J. P. De Haas the younger, in 1806, a fieri facias issued, under which a levy was made on his undivided moiety, and his right and title to the chance of the reversion of the other half of said house, which the sheriff returned, remained in his hands for wantofbuyers; a venditioni, reciting this return at length, issued, whereby the sheriff was commanded to sell the undivided moiety, or half part of the house and lot with the appurtenances. The return recited a sale, in obedience to the within writ, for an amount greater than the judgment. The sheriff’s deed, reciting the fieri facias, the return, the venditioni exponas, and sale under the said recited writ, conveyed the undivided moiety, and the chance to the reversion of the other moiety under the authority of the said writs, &c., to those under whom defendant holds. In 1823, J. P. DeH. Craig, who was living in 1786, the son of H. Craig, the daughter of testator, conveyed his estate in the undivided moiety to those under whom defendant claims, and died in 1829 without issue. H. Craig died in 1834 without issue surviving her; John P. De Haas the younger died in 1827, of whom the plaintiffs are the heirs. This suit was for the reversionary moiety. At the trial before Kennedy, J., at Nisi Prius, his honour directed a verdict for the plaintiff.</p>

<p>Interest not payable by county commissioners on damages awarded for opening a street, until the land is entered on.</p>

<p>1. The court will allow a certificate to a judgment at Nisi Prius to be taken after the first day of the next term, under special circumstances supported by affidavit.</p> <p>2. The Nisi Prius is a distinct court from the Supreme Court, and may arrest a judgment after verdict.</p>

<p>Error to the District Court of the city and county of Philadelphia</p> <p>April 6. The plaintiff was the holder of a note drawn by Desilvei for $650, guarantied by six persons, in payments of $108T\3o respectively, no one being liable for the other. After proving these instruments, he showed a discharge of the drawer as a bankrupt. The defendant, one of the guarantors, proved an arrangement with the bank, by which this, with other debts of Desilver, were merged in one note, which it was agreed should be renewed from time to time, and payment made in book-binding, &c. As an inducement, Desilver agreed to deduct thirty per cent, off his account, and apply it to the payment of his father’s debt, for which he was in no way accountable. The sureties assented to this arrangement. The payments on his father’s debt were made as was agreed, and this amount the defendant claimed should have been applied to his private debt; the court charged he was not entitled to it, as he had assented to the arrangement. $160 having been paid on the original note, defendant contended he was exonerated, but the court said, as there was no contribution, or joint liability of the sureties, he was only entitled to his proportionate part.</p> <p>Desilver was offered by defendant as a witness, but the court rejected him. There was an exception to the admission of evidence to prove a demand by the bank, and refusal by Desilver, after his bankruptcy, to perform his contract in furnishing books.</p>

April 6. Hirst, being summoned as garnishee in an attachment in execution, pleaded that he had no other moneys of defendants, except the sum of $300 then in his hands, received by -him as attorney at law, under a distribution of the proceeds of a sheriff’s sale of the real estate of a third person. The other pleas are immaterial here. Plaintiff demurred, and the court below gave judgment for defendant.

<p>Error to District Court of the city and county of Philadelphia.</p> <p>April 6. Harbert filed a claim, against three houses, and on a scire facias, the plaintiff in error, who was the owner, filed an affidavit of defence, setting out that the houses were built for him under a contract by Colliday, and that a small balance was still due him, but that liens to a greater amount had been presented, and he was willing to distribute the balance equally. That Colliday agreed to furnish a release of all claims; and plaintiffs, at his (Colliday’s) request, did deliver to him a release unto said Wetherill of all claims, &c. Afterwards, and without the knowledge or consent of deponent, the signature of plaintiff was erased from the release by some person unknown to deponent; but not for some time after it had been executed and exhibited to deponent.</p> <p>The court gave judgment for plaintiff.</p>

April 7, 8. — This was an action of assumpsit, in which the material point was the right of the plaintiff to the proceeds of a draft of Grade on Russell, or a proportion thereof. On the trial before Burnside, J.$ the plaintiff proved that Toulmin vías a commission merchant in Mobile, and on the 7th March, 1842, in good credit, not contemplating a suspension.

Jlpril 8. This action was against the second by the third endorser of' a promissory note. The first three endorsers resided in Philadelphia; the fourth in New York; the fifth at Newark, N. J.; and the place of payment was Elizabethtown. The last day of grace was the 4th October, 1839; the sixth, was Sunday.

<p>An executor holding a mortgage received coal for his private use, from the tenant, who had agreed to keep down the interest as part of the rent; he promised to endorse the amount on the bond, and on accounts, crediting him with the amount of the interest, being rendered, examined them without objection, continually repeating the promise to make an entry on the bond. Held, there being- no collusion, both parties considering tire executor a solvent man, the mortgagors were entitled to this credit for interest on the mortgage.</p>

<p>Error to the District Court of the city and county of Philadelphia.</p> <p>April 16. — Manderson, on the 7th of February, 1837, filed a claim for materials furnished between Dec. 31, 1835, and August 10, 1836, to a house particularly described, against A. Christine, owner or reputed owner. On a sci. fa. the defendant pleaded that the gopds were not furnished; payment; that he never was the owner, but that one Bowman was. And also filed a plea averring “ the claim is null and void, because it does not state the kind and amount of materials, and the times when furnished, and this he is ready to verify by the record.” This was struck off by the court, on motion; and constitutes the first exception. The plaintiff, on the trial, before Stroud, J., proved the delivery of the goods and their value, and the erection of the building by Christine, and gave evidence showing reputed ownership. There was some contradictory evidence on this point. The court refused to admit evidence to prove that the title was in Bowman, and never in Christine.</p> <p>In answer to defendant’s points, the court said that the act of 1806 governed the case, as the materials were furnished before the act of 1836 went into operation. Hence a specification of the materials, or the time of furnishing them, was not necessary. The claim was good, though the owner was not a party. It was not necessary to file the claim against Christine, as contractor, and Bowman, as owner. That if Bowman was the real owner at the time of the commencement of the building, the plaintiff might recover.</p> <p>These were the errors assigned here.</p>

<p>1. The District Court has jurisdiction under the act of 1818 and 1830, of all claims for the removal of nuisances by the Board of Health, though less than $100.</p> <p>2. The form of the claim is regulated by the mechanics’ lien acts in force before that of 1836.</p> <p>3. The board have final jurisdiction in determining the fact of nuisance, which they order to be removed.</p> <p>4. The 27th section of the act of 1818 has no reference to a nuisance on a vacant lot, so far as it requires a warrant from a justice, and a visit by a committee of the board, before an order for removal be made.</p>

<p>From Chester Court of Common Pleas.</p> <p>April 20. — An auditor having been appointed to distribute the funds in the hands of the assignees of Roberts, Susan Rossiter, who was his ward, claimed payment of a sum received by him, and loaned to Thomas Rossiter, which had been received by Roberts’ assignees; and offered declarations of Roberts, made before his assignment, to prove the loan was with her money. The auditor and court rejected the testimony, on the ground that Roberts himself might have been called to prove the fact.</p> <p>This was the only exception argued here.</p>

<p>1. A stranger to a suit lor damages occasioned by the erection of a dam, whose land is thereby flooded, is not incompetent as a witness, even though ho may have granted the right, of which the party cannot avail himself but by thus swelling the water.</p> <p>2. Declarations of the owner, to bo evidence against his grantee, must be prejudicial to himself at the lime; hence, where A., who was the owner of land on which he had erected a mill and dam, was also the owner of tract B.,his declarations as to the extent of his right to swell the water on tract B., by means of a dam under a grant of the former tract, are not evidence against the subsequent owner of B.</p>

<p>The holder of a chock, payment of which had been refused for want of funds, passed tho same to his vendor, stating, in answer to inquiries, there was nothing wrong about it. Held, the suppression of these facts were fraudulent, and a recovery might be had on the original contract of sale.</p> <p>If a note be taken by a seller of goods, with an agreement that he will endeavour to collect it or return it within two or three months; it does not imply he is bound to proceed to a suit; nor is he liable as for negligence, even though it be shown a recovery might have been had.</p>

<p>1. An account for work clone having been sent, tlic agent of the party called, and, without objection, promised it would be paid when money was received by the partnership: Held to be sufficient evidence of indebtedness for the jury.</p> <p>2. A. having pleaded a partnership in abatement, the plaintiff commenced suit within a year and a day after the writ was quashed; process was served on the original defendant alone; the statute of limitations does not run since the commencement of the origi nal action.</p> <p>3. One of several partners being alone served with process, promises and admissions by his agent are evidence in the action.</p> <p>4. And where the cause of action was alleged to have existed against the firm, and the promise set out was by the partner who alone was served, such a defect cannot he taken advantage of on the trial, and on error after a trial on tire merits, the court will direct the declaration to be so amended as to show what was ti-ied. (But, query, if the declaration here recited a cause of action against any one but the party served.)</p>

Jipril 22. — Thomas Marshall, by his will, in 1842, devised the plantation on which he lived, and other lands in the same county, to his grandsons, Ellis and Thomas P. Marshall, Thomas paying to each of his brothers and sisters, except Ellis, five in number, $500, and Ellis paying to'the same $300. The real estate thus given was valued at $13,000. To his daughter, Edith Scholfield, he bequeathed $400.

Elizabeth Powell devised the estate now in question, in trust for the use of J. H. P. for life ; remainder to trustees, to support contingent remainders; remainder to S. P., the eldest son of J. H. P., for life; remainder to his first and every other son in succession in tail; remainder to the second and every other son of J. H. P. in tail; and in default of such issue, remainder to S. P. G. in fee, if living at the time of such default of issue; but if he should then be…

April 27. — This ivas an action on the case against Offerman, Biddle and Patterson, for negligently working their mine, and thus injuring the house of plaintiff. The title-deeds were not in the bill of exceptions, but the declaration averred a possession of a coal mine in the land on which plaintiff’s house stands. The only question raised in the case was, whether defendants were liable for the injury.

<p>Conveyance in consideration of the assumption of a lien on the land, renders the grantee liable to pay it, and is a valuable consideration. But whether the remedy bo in covenant, or in another form of action, Queer e.</p>

April 27. — The plaintiff in error brought ejectment in December, 1841, and proved title to the property. The defendant was a contractor for the Reading Railroad Company, and had agreed to complete his work in July, 1841; but it was shown that it was not finished until January, 1842.

Jipril 28. — Dailey, having recovered a judgment before a justice, filed a transcript in October term, 1842. In September term, 1845, he issued a fi. fa., which the court, on motion, set aside.

April 29. — Gear presented a petition for a habeas corpus to bring up the body of his son, stating he had bound him in 1841, at the age of fifteen, to defendant to learn the trade of a bricklayer. That pursuant to the indenture, the boy commenced and continued working for nine months in each year, but was discharged by the defendant for the remaining three months; by means whereof his morals are becoming corrupt.

<p>On appeal from the Nisi Prius, executors not bound to give security.</p>

<p>On appeal from the Nisi Prius, there being a certificate for defendant, the plaintiff must give security for that amount, and costs.</p>

<p>1, An agreement by a shipper, with the captain, that he shall be interested to the extent of $5000 in the profit and loss of the shipment, gives no special or general property in the goods, but a mere right to participate in the profits.</p> <p>2. The owner of a vessel, who also shipped a large part of the cargo, by his letter of instructions stated the names of third, persons who would be interested in the return cargo. The next day he agreed the captain should be interested to the extent of $5000 in the profit and loss in the shipment. The consignees, at the request of the captain, purchased goods for him to the amount of $5000, with the money of defendants, and consigned them to defendants, stating the agreement, and that they had been induced to make the purchase under that, at request of the captain; but if it was wrong, defendants could correct the mistake. Defendants entered the goods, and made oath to the invoice, without stating the name of the owner. On demand by plaintiff, they denied his right, alleging they had advanced to the shipper more than the value of the goods. Held, the plaintiff could not recover, either under the agreement, purchase, and invoice, or the subsequent acts of defendants.</p>

<p>The drawer of an accommodation note is not entitled to the privileges of a surety, as between himself and strangers, having, by the instrument, agreed to be considered the principal; nor does he acquire the rights of a surety by subsequently giving a bond for the amount of the notes.</p>

<p>An executor on a sale by the Orphans’ Court, retained a sum of money in his hand to meet the demand for dower or thirds chargeable on the estate of the testator; the widow is entitled to recover; and the executor is the only party chargeable.</p>

May 11. — This was an action on a promissory note, in which there was a special plea of set-off, and a replication of a former recovery of the matter intended to be set-off. After the proof of the note, the defendant called his brother, who proved a claim due him by plaintiff, assigned for value to defendant, with a release, &c., to witness. He was objected to, but admitted.

<p>1. Testator devised all his estate among his seven brothers and sisters, nominalim, or their survivors. Four of them were dead, leaving issue at the time he made his will, and the fact was known to him. Held} survivors meant representatives; it being clear the will was written by an illiterate man.</p> <p>2. The court receive evidence of facts and circumstances relating to the family of testator, known to him, in construing a will. See Marshal’s Appeal, ante.</p>

<p>From the Orphans’ Court of Lancaster county.</p> <p>May 12. — Jacob Seichrist died in 1839, and appellants were appointed his administrators, and filed an inventory of the goods, &c., valued at $9745.</p> <p>In 1840, they filed “ an account of Sener and Bower, administrators, &c.” They charged themselves with the inventory, including two bonds, with interest, one of which was, by George Hecker, for $2200. They also charged themselves with “ cash received on the sale of the real estate of said deceased, $9218,” showing a total of $19,913, and claiming various credits, including a charge for “ settling the estate,” of $765, leaving a balance of $14,242. A note at the foot of the account stated this consisted of George Hecker’s bond, another small bond, a debt, and cash. This account was confirmed in'September, 1840. ; . -</p> <p>In September, 1844, the appellants filed a paper in the Orphans’ Court, stating the balance on the former account, and how it was made up, and claimed a credit:</p> <p>1. For $9218, cash received from the real estate which had been paid to the heirs as per releases.</p> <p>2. After stating the bond, and the debit therefor, with interest in the former account, and that $469 had been received from Hecker’s assignee, they claimed a credit for the balance unpaid, $1863.</p> <p>3. For various small expenditures and payment of debts due by the estate before filing the former account.</p> <p>This left a balance due the estate of $2993; one-half due the widow, and one-half for distribution among representatives.</p> <p>Exceptions were filed to the allowance of the credits on this second account.</p> <p>The bond of Hecker was given to the intestate in 1838, with a warrant to confess judgment, under an agreement that it should not be entered until notice to the obligor. One year’s interest was paid after the death of testator to appellants, but suit was not commenced, nor judgment entered, until the 15th May, 1840. It seemed they were ignorant that it was a judgment bond until that time. On the 11th May, Hecker made an assignment for creditors. He was possessed of large real estate, and had judgment been entered before the assignment, the debt would have been secured.</p> <p>The court below (Lewis, President) considered the fair inference of the law to be, that some effort must be made to collect the debts within a year, and none having been made, and the debt being lost, the appellants were chargeable. Besides, the account originally filed was a final account, and this last one, therefore, irregular, and must therefore be set aside.</p> <p>After the appeal was taken to the Supreme Court, appellants proved they demanded the debt in March or April, 1840, and received a promise of payment in a few weeks. Hecker then discovered his inability to meet his engagements, and made the assignment. All this evidence was objected to as inadmissible. They also proved the existence of the warrant was unknown at the time the inventory was made, the bond not having been examined except as to its date and amount.</p> <p>The error assigned was the rejection of the supplemental account. The paper book does not show that the second account was so styled, except in the exceptions filed thereto.</p>

May 13. — Haines, administrator of H. Share, issued a sci. fa. to revive a judgment obtained by H. Share & Co., against plaintiff' in error, intestate in 1815. A former proceeding had been commenced in the name of Mehaffy, surviving partner of H. Share & Co., which, on writ of error, was reversed on the ground that the words “ Sc Co.” should have been treated as surplusage in a court of law. The case is reported in 7 Watts & Serg. 276.

May 13. — A judgment having been entered on bond and warrant by the son to the father, it was on motion opened, and the creditors of the son let into a defence. On the trial it was proved, that the son, at seventeen years of age, having learned his trade, agreed with his father to go west, and work for himself, for which he was to pay ‡200.

May 13. — In this case a rule was entered to choose arbitrators on 17th May, at which time defendant not appearing, they were named and an award made. A motion was made to set aside the proceedings, which was based on an affidavit, that the date had been altered in the rule from the 10th to the 17th, after it was filed, which facts were admitted, but the court refused to set aside the proceedings, as no injury was alleged to have accrued by the alteration.

<p>Error, to Common Pleas of Lancaster county.</p> <p>The declaration in this case contained originally but one count, ■which charged the defendant with having obtained, with intent to defraud the Northampton bank of $80,000, in the mortgage loan of the Lehigh Coal and Navigation Company, and of $27,000, in notes of the Northampton bank, and $1500 in the funds of that bank, by means of certain fraudulent transactions with John Rice; but at the trial, the plaintiff was permitted to file a count in trover, for the same claims and funds, though the defendant resisted the plaintiffs’ right to do so, as the cause had been arbitrated, an award made, and an appeal taken.</p> <p>At the trial of the cause, on the 30th day of April, and 1st of May, 1845, there was no evidence whatever given of any assignment to the use of Gibbons; and there was a verdict for the plaintiff, for $2456 21, on the count in trover, and generally for the defendant on the first count of the declaration.</p> <p>. Judgment having been rendered upon the verdict for the plaintiff, the defendant moved for a rule “ to show cause why the verdict and the judgment should not be received in Northampton bank notes, and that an order to that effect should be endorsed on any fieri facias that may issue,” which, after argument, was discharged on the 3d day of May, 1845, the discharge of which rule is assigned for error, as also that the court permitted the count in trover to be added against the consent of the defendant.</p> <p>Errors assigned: — 1. That the court below erred in not making the rule to show cause “ why the verdict and judgment should not be received in Northampton bank notes,” absolute. 2. Because the court below allowed a count in trover to be added at "the trial, against the consent of the defendant.</p>

<p>Error, to the District Court of Lancaster county.</p> <p>May 14. — This was an action, on an official bond, against a justice of the peace and his surety, in which suggestions of breaches were made, by non-payment of moneys collected by defendant, as justice of the peace, for the three parties to whose use the action was brought.</p> <p>On the trial, plaintiffs proved that Kendig (the justice) brought the bond to house of the surety, where it was signed on Sunday, having been previously executed by himself. It was received and filed by the prothonotary on a subsequent day, after approval. The evidence was objected to, but admitted.'</p> <p>They then proved defendant exercised the office until a short time before suit brought, when he resgined.</p> <p>They then proved a notice to produce the docket of the justice, and an attachment against Kendig as a witness, judgment by default having been previously taken.</p> <p>Plaintiffs then offered a paper, purporting to be a bill of costs, collected by Kendig for one of (he plaintiffs, a constable, signed by him after resignation of his office. It was objected to, but admitted. Next, a paper signed by the same, stating a suit by one of the present plaintiffs, judgment, execution, and a payment to defendant, by the defendant there, of part of the debt, and by the constable of the balance; this was objected to, and admitted. The next was a certificate by him of accounts put into his hands, and collected by him, as justice of the peace, for the third of the present plaintiffs. The objection to this was, that the claims had never been in suit, and hence the surety was not bound. The surety, defendant, proved these admissions were recently obtained from Kendig when in infirm health; and then proved his resignation of his office was occasioned by a petition for his removal for intemperance, signed by defendant, his surety, and showed a letter to the surety from Kendig, telling him if he did not pay the money collected by him, he would confess judgment.</p> <p>The defendant presented seven points to the court: That the surety was not liable for moneys received by the justice before judgment, or on claims without suit, or for money paid on execution, or received from the constable on execution, or for constable’s costs. If the admissions were procured by exciting his displeasure against his surety for his petition, &c., in order to charge the surety, he being insolvent, it was fraudulent. The bond being executed by the surety on Sunday, was void as to him. Neither the docket nor transcripts being produced, nor evidence that they could not be, there was no legal evidence of the claims. The court (Hayes, President) told the jury, the surety was liable for all moneys received in suits before the justice, but not for claims which were to be collected by him without suit, and were so collected; also for the costs. If the money was due, there was no fraud in procuring the admissions of the fact. If the bond, though signed on Sunday, was not delivered to the prothonotary nor approved by the judge until Monday, and the prothonotary and plaintiffs were not informed of the fact of signing on Sunday, it was valid. The evidence produced was legal evidence.</p> <p>The evidence admitted, and the answers of the court, were the errors assigned.</p>

May 14. — But one point of any importance was raised in this case. Tn 1840, Miley conveyed the land, for which this ejectment was brought, to the wife of K. Ewing. In 1843, K. Ewing conveyed his life-estate in the property, which had been purchased with his wife’s money, to J. Ewing, -who, in 1844, 24th February, conveyed it to Brown, in trust for the separate use of M. Ewing, the wife of K. Ewing.

<p>Error to the Common Pleas of Adams county.</p> <p>May 18. — This was an action of debt on bonds due in 1844-5, executed in 1816, against the administrators of the obligors, with notice to terre-tenants of certain lands. The declaration averred, that by the agreement of the parties, and the deed conveying the land, now owned by defendant, these bonds were a charge; that defendant purchased with notice, and subject to the lien.</p> <p>On the trial plaintiff proved articles for the sale of the land to Chronister, from his father Henry, at £10 per acre, payable in annual instalments of $100 each, for which bonds (two of which are the subject of the present suit) were to be given by the purchaser. A clear deed to be given to Caspar, (the purchaser,) on payment of the hand money, he giving his bonds for the yearly gales.</p> <p>The deed itself could not be found after diligent search; whether it ever existed, is not stated on tire record to have been proved. In 1822, a judgment was recovered against the purchaser under these articles, on which a sale was made by the sheriff, and a conveyance of his estate, “subject to a lien,” &c., not specifying what it was, to Wert, who agreed to convey, in 1825, subject to all legal claims on the land; and by a deed granted all the interest vested in him by the sheriff’s deed.</p> <p>Plaintiff then offered to prove by Wert, that Caspar Chronister, while owner of the land, admitted that the land in controversy was charged with the payment of the bonds given for the purchase money, and that at the sheriff’s sale to him this fact was known, and he became the purchaser with the full knowledge of it. That the land was at the time worth from $3000 to $4000, and only sold for $700, in consequence of the encumbrance of these bonds, which was known at the time by the bidders. That he agreed to sell the same land to defendants for $1000, which was greatly below the value of the land, because of the said charge upon it, with which they were acquainted at the time, and that the reservation in the article of agreement read, referred to the alleged encumbrance of the bonds for the purchase money. And farther, that the defendants, after their purchase from Wert, acknowledged that they held it subject to the encumbrance of paying these bonds, and that they went on to pay, and did pay, several of the same series of bonds, in accordance with the alleged encumbrance; also several other deeds, made by Henry Chronister, to others of his sons, about the same time, having inserted a positive stipulation that the lands sold were charged with the payment of the bond given for the purchase money, &c.</p> <p>The court (Durkee, President) rejected the testimony, and directed tire jury to find in favour of the terre-tenants, as there was no evidence the land was charged with the bonds.</p>

May 18. — This action was brought in November, 1844, to the use of the trustee of one of the plaintiffs, who were formerly partners in trade, to recover a debt guarantied by defendant to the plaintiffs’ firm. On the trial, Keys, having been objected to as a witness for plaintiff, exhibited his certificate of discharge as an insolvent in Maryland, and the appointment of a trustee to whose use this action was brought.

May 21. — This action was against three persons, who, it would appear, were a constable and his sureties, (though they are not so named on the record,) in 'which the plaintiff proved the bond, and the entry on the docket “Sworn,” with the endorsement, “approved,” &c., in the handwriting of the judge. Defendant made three objections. 1. It was not shown the constable was sworn. 2. Because the bond was not taken by the clerk. 3.

<p>Purchase, by general agent for heirs, of the land of their ancestor from the vendee at a tax sale, instead of redeeming, entires to their benefit. (Query, if made with trust funds; it seems it was.)</p> <p>Land having been sold under judgment against A., B. & C.,the auditor and court, in the distribution, must decide on their respective titles, and whether one is entitled by purchase of the whole, or there is a resulting trust for the others.</p> <p>Unless an issue be demanded on distribution of sheriff’s sales, before decree, the want of one cannot be assigned for error.</p>

Error from the Common Pleas of York county. May 19. — This was an action on a bond for the purchase money of a house and lot, dated in May, 1843, in which the defence set up was a defect in the title. The circumstances relied on were these : In tlie year 1825, Elizabeth Koons, by her will, gave to the children of her son Jacob, a legacy, to be deducted out of bonds due by him to her, and appointed John Koons and G. Spangler her executors.

<p>May 20.' — The question here wms as to the right of administrators to set off a debt due by the husband against the wife’s distributive share. The plaintiff brought a sci. fa. on an account settled by the administrators of her father’s estate in 1825, showing a balance due by them. This was composed of the proceeds of real estate sold for payment of debts. The husband of plaintiff wras at that time insolvent, and died in 1833. On the trial, defendants proved under objection by plaintiffj that on the settlement of their account they claimed and received a credit for $319 paid by them for John Flory, the plaintiff’s husband. The evidence of this debt was a joint note of the intestate and John Flory, which was paid by the defendants, and an assignment taken. In answer to plaintiff’s points, the court instructed the jury, 1. The debt must have been John Flory’s, to entitle defendants to a credit. 2. If so, it was a good defence pro tanto.</p>

<p>Error, to the Common Pleas of Lancaster county.</p> <p>May 12. — Case stated for the opinion of the court. Caleb Evans, the elder, died in 1802, leaving a widow and one son, Caleb the younger. The widow married again, and died in 1825, leaving issue of the second marriage.</p> <p>In 1833, C. Evans, the younger, was duly found a lunatic, and that he had been so for fifteen years past. p</p> <p>In 1839, his committee petitioned the court for a sale of the land of the lunatic for payment of his debts, which was ordered, and the End sold for upwards of $6000.</p> <p>The account then filed showed a surplus, after payment of debts, exceeding $3000.</p> <p>In 1845, the lunatic died unmarried, without issue. The brothers and sisters of the half-blood claimed the money as next of kin, entitled to the personal estate. The children of his father’s brother claimed as heirs. If the former were entitled, judgment to be for plaintiffs; if the latter, contra.</p> <p>The court (Lewis, President) gave judgment for plaintiffs for the following reasons:</p> <p>“ The real estate was regularly converted into personal estate under the direction of a court 'of competent authority. The heirs are not entitled to relief, unless there has been a breach of trust in the committee, which would exist where it was shown that they had acted for their own interest and not for the interest of the lunatic; Ex parte Bromfield, 1 Ves. jun. 953. But where the conversion has taken place under the authority of the court, it cannot be taken to be a wrongful conversion, and the heir has no such equity as will induce the court to inquire into the origin of the fund. The parties must take it as they find it; Flanagan v. Flanagan, 1 Br. C. C. 500; Ex parte Ludlow, 2 Atk. 407; Orendenv. Compton, 2 Ves. jun. 69,74.”</p>

May 15. — The plaintiff, as administrator of A. Ewing, brought trover for goods belonging to the estate. The defendant showed title, under a conveyance from his father, A. Ewing, in March, 1843, in consideration of food, clothing, &c., during his life, and an annuity of $100. The plaintiff proved that at the time of this conveyance, A. Ewing was indebted far beyond his ability to pay.

<p>Error to the Common Pleas of Adams county.</p> <p>May 19. — This action was brought in February, 1844, on two sealed instruments, dated in 1820, which were written on one sheet of paper. To rebut the presumption of payment, the plaintiff showed endorsements of payments in 1824 and 1840, by one of the two obligors. He also gave in evidence receipts for these sums, produced on demand, by the administrator of the parly who paid the amounts, and an admission by one of the parties to the instrument, within sixteen years, that the debt had not been paid. The defendant also gave evidence of an assertion by himself, uncontradicted by plaintiff, that but a small balance, if any, remained due. The plaintiff’s exceptions were to the answer of the court to the second and third points proposed, •which in substance were:</p> <p>1. The presumption of payment goes to the whole of the debt. If any part remains unpaid, and defendants have not shown what part, plaintiffs may recover the whole.</p> <p>Ans. — When the presumption of payment has arisen, such presumption may be repelled so far as plaintiff’s testimony may authorize the jury so to do.</p> <p>2. If there was a payment of part, and an acknowledgment of the debt within twenty years, the burden of proof is on defendant; and if other circumstances are relied on, to raise a presumption of payment, and it appears from these facts that a part did remain unpaid, such evidence raises no evidence of presumption against the claim, there being no distinct evidence what the balance was.</p> <p>Ans. — When a legal presumption of payment has arisen, the burden of proof is on the obligee, and it is for the plaintiff to satisfy the jury that he is entitled to recover the whole or a part of his demand.</p>

<p>An executor, having paid a legacy, is incompetent as a witness to establish the will on an issue of devisavit vel non. w</p>

May 18. — This was an ejectment against a purchaser at sheriff’s sale, in August, 1842, of the property of the plaintiff. The title shown was a conveyance to the wife of the plaintiff. Defendant had entered under his deed from the sheriff. It was shown the land yielded a rent. The court (Durkee, President) charged the jury, that “ The sale of John Stambaugh’s life-estate in the premises in dispute, on the fi. fa., issued against him, was void.

May 19. — On the 22d of December, 1841, Slaymaker confessed a judgment to the York Bank. Other judgments were subsequently obtained against him to a large amount. On the 9th of December, 1842, he filed his petition in bankruptcy, which was decreed finally, April 29, 1843. The sheriff of the county having sold his land, paid the money into court, and on the 5th of December, 1843, an auditor was appointed to distribute the fund.

<p>Error to the Common Pleas of Huntingdon county.</p> <p>May 22.- — -This was an action of trespass — pleas, non cul. and lib. ten. It appeared that Dysart, the plaintiff below, was the owner of a tract of land on which ivas a worm fence erected many years since.</p> <p>The defendant owned the adjoining tract, and had placed a fence near that of plaintiff, and in a line with it, leaving a narrow lane between them, closed by a fence at one end. The trespass complained of was the continuation of a fence on defendant’s land, across the unenclosed end of the lane, up to the fence on plaintiff’s land, and inserting rails therein, in the middle of a panel, extending through and over plaintiff’s land.</p> <p>The first question was, whether plaintiff’s fence stood-on the boundary line. This was left to the jury. The second, which is the only matter of exception here, was the charge of the court, (Durkee, President,) that even if the fence had stood in the same place for twenty years, defendants were not liable as trespassers, unless it was exclusively on plaintiff’s land. But if it was on the line, defendants could at any time extend their enclosure up to it, and use it as they had done ; and this the court considered a fair construction of the act for regulating partition fences.</p>

Error, to the Common Pleas of Mifflin county. May 26. — The plaintiffs below were the heirs of George Bell, in whom the title of the land was originally vested. The defendants claimed as purchasers at sheriff’s sale, and the only question was, the validity of that sale. In September, 1818, judgment was recovered against the executors of George Bell, with stay of execution for one year, and a fi. fa. issued in November, 1819, and was returned not executed.

<p>May 27. — The plaintiffs in error gave a note to plaintiffs below, dated July 30, 1845, promising to pay to plaintiffs below, their executors, administrators, and assigns, one day after the date thereof, without defalcation, for value received, with a power of attorney annexed to confess judgment in favour of the payees for the “above” amount. On the 31st of July, judgment was entered by virtue of the warrant of attorney, for the amount of the note, “with interest from the 3lst July.” An execution was issued on the same day, which the court (Woodward, President) refused to set aside on motion.</p>