Volume 2 — Penrose & Watts's Pennsylvania Reports

IN EEROS. This was a writ of error to the Common Pleas of Allegheny county. The facts of the case are thus stated by his Honor who delivered the opinion of the Court: Of November term 1S20, N. Burt entered a judgment on a bond and warrant of attorney against Patrick Doran, for #729 15. To Aug. T. 1822 a Fi Fa issued on this judgment, and was levied on a house and lot in Pittsburg, particularly described: the defendant waived the necessity of an inquisition. A writ of Fend.

<p>IN ERROR.</p> <p>This was an appeal 'by the defendents from the decision of the LircuitCourt, held by Justice Smith, for the county of Allegheny.„</p> <p>The plaintiff and defendants, and those under whom they respectively claimed were -the^owners of adjoining surveys; and the only difference between them, which gave rise to this action, of ejectment, was as to the line which divided their legal rights.</p> <p>The evidence in the cause, so far as it is necessary to understand the decision, exhibited this state of facts: . There had been an improvement upon and actual possession of each of the surveys for thirty years or more. " There were marks upon the ground, ■which the defendants for five and twenty years or more treated as -the marks of the division line between the surveys; and, according •to the evidence, exercised such acts of ownership up to that line, .as cutting timber for various purposes; and within tw"enty-one years had made an improvement up to the said line. There was also some evidence that William Robinson, under ryhom the plaintiff claimed, had at one time,' considered the line mentioned as his boundary, and had spoken of it as such, and that he knew of the improvement which those, under whom the -defendants claim, were making; and gave no notice of his title.or claim. At a-subsequent period the plaintiff discovered that the defendant’s improvement was within his survey; and he brought this aetiocr of ejectment to recover all the lan’d 'within his original survey.</p> <p>Points of law were submitted by the defendants’ counsel, upon which his Honor was requested to charge the jury. ' ' •</p> <p>Smith, J. — Stated to the jury, that if .one suffered or permitted ■another to go on with building on his ground, and did not forbid him, when he was at the.time conusant of his right, and the one building had no notice of the other’s right, he would hold it. That if, in this ease, the jury believed that Carson, improved or built on the land in dispute, and that Robinson knew of it, or saw it, and was conusant of his right to the land, and yet did not caution him, or -forbid him from going on with his improvements or buildings,'but stood by, and saw and knew of it, .he'would be barred from recovering the land; and read to the. jury on this subject from % Johns. 589, and then desired the jury to consider whether Robinson was at home, or knew of the improvements which were going on, on the land; and if so, and Robinson was at the the time, conusant of his title or right, they might decide in favour of the defendants; but before they did so decide, they ought to be well satisfied of all this.</p> <p>That it was for the jury to say, whether the plaintiff, or those under whom he claimed, had recognized the line stated in the cfiagram to be S. 22, E. 115 perches, or the dogwood line; and if they thought so, the plaintiff would be bound by such recognition.</p> <p>That if Carson, under whom the defendants claimed, or those claiming under him, knew of Wilson’s warrant and survey, under which the plaintiff’s title originated, and that the land now in' dispute was included in it, it was not'honest in them to take it away; an.d that it rather appeared, to the Court, that with due diligence, they might have known»''this, at least in" 1814, when; Carson’s survey was made, by having recourse to the book; directed by the act of 3d April, 1792, to be kept by the -deputy surveyor, in which Wilson’s survey was laid down.</p> <p>That he who enters on a tract of land with title, has by construction of law, the actual possession of all the lands within the bounds of his survey, and that therefore to entitle the defendants to the benefit of the act of limitation, an adverse possession for 21 years must be shown.; If the jury believe that Carson and the defendants under him, had an actual, adverse possession of this land, for 21 years before this suit was brought, it would avail the defendants.' If Carson only took possession in 1814, when the survey was made, then the act of limitations cannot avail him or them, as 21 years? adverse possession would not have elapsed before the commencement of this action.. If the jury, believe that. Robinson confessed himsejf opt of possession of the land now-claimed, an.d 21 years have elapsed, the act of limitations would run against him; for an ouster would then be presumed, although the land was not enclosed by his adversary.</p> <p>If Carson knew that the* land was in dispute when he improved or built on it, he ought to have inquired, and instituted an examination into the title of Robinson; and so ought the defendants to have done before they bought of Carson — whether they did op fiot, is for the jury to decide. The circumstance of the deed’s .containing a general warranty, renders.it probable that the purchasers did know it, or at least that they knew the title not to be without suspicion. . .</p> <p>The jury having rendered a verdict for the plaintiff, the defendants moved the Court for a new trial, on the ground of a misdirection of the jury. The motion was over-ruled and the defendants appealed. •</p> <p>The unequivocal acts, and repeated declarations of the pjaintiff shew conclusively, that he and those under whom he elaimsj*did not claim the land in dispute for thirty years before suit brought. Even if he has. now the legal title, he should be estopped from claiming it, because he saw the continued act's of ownership by the defendants, up to the line, and made no objection. When a man stands by and sees improvements making on his land without objecting, he is barred forever-thereafter from asserting his right thereto. 2 Johns. Rep. 573. Andthisisthe law, whether the party is conusant of his right or not. Styles v. Cooper, 3 %dth. 693:forwhen both parties are equally innocent, the loss shall rest upon him on whom it falls. Buchanan v. Mooré, 13 Serg. & Raiule, 304.</p> <p>But the statute of limitations is a bar to the plaintiff’s recovery: for when a party, by hi^acts. and declarations, acknowledged he was out of possession, the statute will run against him. Royer v. Benlow, 10 Serg. & Rawle, 303. Here,.those under whom the defendants'claim, were exercising ácts of ownership on the land in dispute, for-thirty years, and in addition to this, we have the declarations of the plaintiff, that he did not claim the land. Actual occupation is not necessary in order that the statute may run; for the enjoyment of a right of way for twenty-one gives the right.</p> <p>A purchaser having' taken a deed with general. warranty, forms not the slightest presumption that the title he received was doubtful; and in so instructing th.e jury there certainly was error.</p> <p>The legal title to the land in dispute is admitted to be in'the plaintiff, and the question is, whether he has been divested of that title, by any of his acts or declarations, Or by operation of law,</p> <p>, By a reference to all the cases which ‘establish - the principle, that-one who looks' on. and sees anothér • improving his land, without giving notice'of his claim, shall not' be permitted after-wards to assert his right, it will appear, that they áre all based upon the ground of fraud, and the proof of knowledge of' the party. East- In. Co. v. Vincent, 2 Jitk. 83. Hanning v. Forrers, 1 Eq. Ca. Jib. 356. Gilb. Eq. Ca. S5, Rmov. Edits, Free, in Chan. 35. 2 Fern. 150; Styles v. Cooper, 3 JltlV 692. Dunn v. Spurrier, 7 Ves. 231, ■ ■ ,</p> <p>In this case, the jury were perfectly satisfied that Robinson was ignorant of his rights until-a short period before suit brought; and ignorance of title does not divest a man of his right. Stewart v. Leeddesiin, 1 Rand. Rep. 403. And this is perfectly analogous to all the cases in Pennsylvania, where it has been so repeatedly held, that a declaration made, or act done by. one, in ignorance of his rights, will not bind him.</p> <p>A delay to exercise a right is not fraud; and a man does not forfeit his title by a delay short of twenty-one years. Cox v. Cromwell, 3 Bm.'lZO. Watson v. Gilday, 11 Serg. & Rawle,. 340.</p> <p>In order to the bar of a legal title by the statute of limitations, there must be an actual adversejmssession. Hawk v. Senseman, 6 Serg. & Rawle, 21. Royer v, Benlow, 10 Serg. & Rawle, 303. In this case there was not an actual possession, for the Ieng’th of time provided by the statute, and the constructivei possession is, by law, in him who has the right. Hall v. Powel, 4 Serg. & Rawle, 4‘5S. Where surveys interfere, the act of limitations has no operation against him who has the better right, unless hi-s adversary takes an adverse and exclusive possession: Burns v. Swift, 2 Serg. & Rawle, 436. '</p> <p>The argument that actual possession for twenty-one years is necessary to constitute a bar, is not answered by the case of the exercise of a right of way for twenty.-one years giving a right; for that is a eommon-law provision, and based upon the presumption of a grant. . • - -,</p>

IN ERROR. Error to the Common Pleas óf Allegheny County. This was an action of covenant,, brought by the defendant'int error, tu recover from the plaintiff in error, one half year’s, ground rent of á lot in’the city of Pittsburg. .

.IN ERROR. Appeal by defendant from the judgment of the Circuit Court of Washington county, held by his Honor Justice Rodgers. This was an action of debt brought by the Bank of Washington against John Barrington and Raniel Moore, surviving obligors. oí John Hughes, Thomas Jtcheson and Robert Hazlet, deceased. 'The writ was served on MoOre alone.

IÑ ERROR. •This cause came up on an appeal by the defendants, from the Circuit Court of Allegheny, county, at which Justice Smith presided. ■ >’ It was an action of ejectment for the recovery of 150 acres- of land in St. Clair township, brought by Eclioard Brien and wife against thea heirs of West Elliott, dec’d., the heirs of John Graham dec’d. and the terre-tenants. • The plaintiffs gave in evidence, a warrant to Edward Hand, dated, 24th Nov. 1773, indorsed^ by Alexander…

<p>In a suit brought upon a due-bill in these words, “on the 1st October next, due A. R. R. two bureaus at Carnahan’s shop, in Butler.” Held, that the cause of action was not the subject of a statement, under the act of 21st March, 1806.</p> <p>When the time and place for the delivery of specific articles are fixed in the due-bill, the payor has an election to pay at the time and place, either in the property stipulated for, or money; but after the day is gone by, the right of election is gone, and the payee may sue and recover from the payor the value of the specific articles, in money.</p> <p>When a contract is entire, for the delivery of a number of specific articles, at a certain time and place, the vendee is not bound to receive a part; and though pari be delivered, he is not liable to pay for the same, if willing to accept and pay for the whole.</p> <p>If the vendee accepts a part, he thereby disaffirms the entirety of the contract, and will be obliged to accept and pay for so many articles as are individually furnished according to the contract.</p> <p>The general rale of the common law is, that when no time or place is fixed by the contract for the payment or delivery of specific property, there must be an offer or tender within a reasonable time to pay or deliver. If no place be fixed, the obligor or payor must seek the creditor, if within the state, and tender or offer to perform the stipulation contained in the contract; and if the property is portable*, it must be taken to the creditor and delivered to him; or at his residence. If the property be too ponderous, then the debtor must call upon the creditor a reasonable time before, and ask him to appoint a time and place when and where he will receive them.</p> <p>Generalrales for the construction of contracts for the delivery of specific articles.</p> <p>An action on the case, is the most appropriate remedy for the recovery of the value of specific articles not tendered or delivered on the day stipulated.</p>

IN ERROR. This cause came up by writ of error to the Common Pleas of Allegheny county. To April Term, 1823, the plaintiff.in error, James Gray, confessed a judgmentto the defendants in error, who were plaintiffs’ below, for the sum of $14,000. On the 17th August, 1827, the defendant obtained a rule on the plaintiff, JL. Brachenridge, to ■shew cause Why an issue should not be awarded, to ascertain ..the actual amount due upon this judgment.

<p>IN ERROR'.</p> <p>Appeal by defendant from the Circuit Court held by Smith, J, for Allegheny county.</p> <p>This was ait action of ejectment, brought by Charles Johnston against Josiah It. Harvy, for the recovery of a tract of land. Both parties claimed under Hugh McDonald, senior, who had been owner of a larger tract, containing 155 acres,'of which the land in dispute was a part.</p> <p>The plaintiff gave in evidence, the record of a judgment in the-Court of Common Pleas of Westmoreland county, which was obtained before a justice on the SOth September, 1824, for $99 31, and which was filed 1st January, 1825, and entered to November term, 1824 — -fi. fa. No. 100, November Term, 1824, tested 4th September, 1824 — Return, “Nulla Bona.” Tes.fi. fa. to Allegheny county, No. 104, February term, 1825, tested 4th December, 1824, and docketed in Allegheny county 6th January, 1825, and to-January term, 1825, No. 200, which was levied on a tract of land-containing 155 aei’es, inquisiton and condemnation l'9th March, 1825. These executions were all objected to by the defendant, but admitted by the Court. Tes. ven. expos, issued 7th April, 1825, and to May term, 1-825, No. 66. This excution had not been returned to the office; but there was this indorsement on it, 4‘21st March, 1825, sold premises to Charles Johnston for $1010 00.” This was also objected to, on the ground that it had never been returned, but the objection was over-ruled.</p> <p>The plaintiff then offered in evidence'the sheriff’s deed to-‘-him, dated 21st March, 1825, and acknowledged 8th November, 1823. To this the defendant objected, for the reason, that the deed was dated, and recited a sale made, -beforethe writ of ven. expos. was issued.</p> <p>The objection was over-ruled, and the deed read.</p> <p>The plaintiff then gave in evidence, a power of attorney "from •Hugh McDonald to John McDonald, dated 5th April, 1825, recorded 17th November, 1825, and a receipt, in pursuance there,of, from John McDonald to sheriff Stewart, for the balance of the purchase money, after paying lien creditors.</p> <p>Sheriff Stewart, being sworn as a witness, said, “he could not say whether the property was sold on the 21st March or not; he never published any other advertisement of the sale, than that produced, to wit, for the 21st May. [Here the Pittsburg Gazette of 29th April, 1825, containing,the advertisement of sale, to be on. the 21st May, 1825, was given in evidence.]</p> <p>Plaintiff then gave in evidence a patent to himself, dated 25th ’February, 1828., for .150 aeres, TOO perches, and allowance: granted in consideration of the money paid by Hugh McDonald on the warrant,-which was dated'6th November, 17S4, and which ■recites the sheriff’s sale, and the deed dated 21st March, 1825.</p> <p>He also gave in evidence-the deeds' under which the defendant claimed, to wit, deed from Hugh McDonald and wife, to William and James McDonald, dated -8th March, 1824, acknowledged the same day, and ..recorded 10th March, 1824, for 155 acres of land-: and the deed from William and James McDonald to Josia'h JR. Harvey., dated 14th October, 1824, for 21 acres, 32 •perches and allowance, acknowledged same day, and recorded 17th January, 1S25. And "then offered -the petition of Hugh McDonald, for the benefit of the insolvent laws; for the purpose” of shewing, that the conveyance of Hugh McDonald was fraudulent. This was objeeted-to by defendant-; the objection was overruled and evidence read. Also a list of liens against Hugh McDonald, showing that most of the judgments were assigned to Charles Johnston, and that several of them were part paid in the •summer of 1824.</p> <p>The defendant relied upon the two last-mentioned deeds, which were read by the plaintiff; an abstract of the one from Hugh McDonald and wife to William and James McDonald, is as follows.</p> <p>“Witnesseth, that the said Hugh McDonald, senior, for and •in .consideration of the said William and James WcDonald agreeing to pay, and actually paying off all judgments, that are ■now entered against a certain .tract or messuage of land, lying and being situate in the township of Wilkins, county of Allegheny, and state aforesaid, containing one hundred and fifty-five acres and forty-nine perches and allowance of six per cent, for roads, &c., be the same more or less; butted and bounded as follows,” (here the property is described,) “on the prothonotary’s docket, in Greensburg, county of Westmoreland, or on the prothonotary’s docket, in the city of Pittsburg, county of Allegheny, or that is now, at this time, entered on both dockets, and to deed the above described tract at their own expense in their own names, after paying off the aforesaid judgment or judgments, if there is more than one entered against it at this time, and to keep him, the said Hugh M’Donald and Hannah, his wife, in clothing, boarding, and washing, and lodging as long as they live, and, to keep the rest of the family, in the same, unto that they see fit to go to their own hand, and he the said Hugh McDonald, senior, hath granted, bargained and sold, and by these presents doth grant, bargain and sell, unto the said William and James McDonald, their heirs and assigns, all those messuages, above-mentioned or described, and also all trees, &c. To have and to hold the said messuage, lot or tract of land and all and singular pther the premises above, and every part and parcel thereof, with the appurtenances, unto the said William and James McDonald, their heirs and assigns, to the only proper use and behoof of the said Williapi and James McDonald, their heirs and assigns forever. And the said Hugh McDonald, senior, for himself and his heirs, the said messuage, lot or tract, and premises, and every part thereof, against him and his heirs, and against him, and all and every other person and persons, and judgment and judgments, other than what is on the day of the date of these presents, entered on the prothonotary’s docket whatsoever, to the said William and James McDonald, their heirs and assigns, shall and will warrant and forever defend, by these presents: possession of the said premises is given to the said V/illiam and James McDonald on the day of the date of these presents.”</p> <p>The defendant then gave in evidence a deed from Hugh McDonald and wife to Charles Johnston the plaintiff, dated 8Ih January, 1823, acknowledged the same day; recorded 27th March, 1824: consideration $249 90, and which was for a part of the land included in the levy and sheriff’s sale, given in evidence by the plaintiff.</p> <p>John Wilson, Esq. sworn. I drew the deed from High McDonald to William and James McDonald — it was acknowledged before me. At the time the parties came before me, McDonald said he was become old — he believed his sou John was dead — was not able to work the farm himself; and James would not stay at home to work the farm — no one to work it b.ut Henri/ — that James had come home before and said he had money coming where he had been at work. That he, H. McDonald, was in debt and could not pay it — not able to work the farm. Principal debt he was afraid of was the costs of a suit he had lost in West-moreland. He was afraid the judgment would be removed, and a levy on this land. James stated he had money and would pay off that judgment. Witness observed he bad.sold a part to Charles Johnston. He said he had, and would make a deed for it in a few days, that there was to be a settlement between him and Charles Johnson. Told me to be careful not to include Johnson’s. Said he expected every debt he was in, was bn the docket, and would all come due together against him. On 3d of May I was at Hugh McDonald’s. Hugh McDonald did not know his letters — not a smart man — was old. He said he expected all the debts were on his docket and he wished them all to he paid. Charged me to be careful in what I did, and not to make him a rogue in his old days,-as he could not read nor write. If there was any blunder in drawing the deed, it was my mistake. He believed all his debts were on the docket, but from his words I knew it was his intention that all his debts should be paid. A few days after the deed was drawn I met Mr. Johnston at the recorder’s office — he was there about the recording of his deed. Pie explained to me that I had included in the deed the property that Mr. McDonald had sold to him. I told him it was my mistake. Johnston asked me if it was McDonald’s intention to cheat him out of the money he owed him. I told him not, that it was the old man’s intention to pay all his debts. William Johnston is the son of Charles, so is James; and William Moi'roio is married to his sister. On the 13th June, 1S27, had conversation with Charles Johnston at William Johnston’s. I then understood from them that the deed to Charles Johnston was made after the deed to William and James McDonald. William said that his father would not have bought Harvy’s place. Johnston lived near to Harvy ; not more than between a mile and half a mile. At the time of the deed James said he had money coming to him from some turnpike company; they were to go on paying the debts. The reason I did not insert the time of the payment, was, that the boys mentioned that they had money coming to them and would go on and pay the debts.' It was the first deed I ever drew. Old McDonald was as honest a man as ever lived. After the deed I saw Mr. hosier’s receipt for a hundred dollars in’the hands of William and James M’Donald. They paid me a note which I had against the old man.</p> <p>L. Stewart, Esq. sworn. Mr. Pentland, attorney of Charles Johnston, gave me the levy and insisted upon mv inserting the coartes and distances.</p> <p>William Linnard, sworn. I recollect the sale to Harvy., in August or September, 1824. Survey was made and he took-possession. Johnston knew of Harvy’s purchase. Harvy -went on immediately with building and other improvements. Knew old Hugh McDonald for 30 years, he was an honest, upright man. Johnston told me he did not deny that he knew of Harry’s going into possession. Heard Hugh McDonald say that he was in debt, and intended to pay all his debts. Heard him say that he had dealings with Johnston; that he had sold him land, and had given him cow§ and money, but could get no settlement. Land at the least worth $10 an acre.</p> <p>William Morrow, sworn. Is one of the subscribing witnesses to the deed from McDonald to Johnston. It was executed and acknowledged in 1824. It was acknowledged before a son of Charles Johnston. Can’t tell how deed and ■ acknowledgment came to be dated in 1822.</p> <p>Points submitted by defendant’s counsel.</p> <p>1. The testatum fi.fa. from Westmoreland county, was ille» gal and not a valid foundation of a -sheriff’s sale and deed to the plaintiff in that writ.</p> <p>2. The sheriff advertised the sale of this property to take plaee on the 21st May, 1825. He stated in his examination, that he had not advertised for a sale on any other day. The sale therefore to the plaintiff in the execution, on the 21st March, was void.</p> <p>3. If the jury believe that Charles Johnston knew of the sale to Harvy, he was bound in equity to confine his levy., in the first instance, to that part of the tract which remained unsold.</p> <p>4. If the jury believe the testimony of John Wilson, Esq. and William Linnard, the conveyance of Hugh McDonald to his sons was not fraudulent. But if the deed were fraudulent, in the construction of law, the. conveyance to Harvy for a valuable consideration, which was-paid, was valid.</p> <p>5. The conveyance by Hugh McDonald to his sons, vested the property in them, as trustees for the benefit of creditors; and by that deed the creditors were first to be paid. The reservation to McDonald and his family, did not interfere with the rights of creditors, who were to be first paid. If this transaction was morally fair and honest, it is valid.</p> <p>6. If Charles Johnston be justly chargeable with fraud or imposition in his acts or proceedings in relation to this property, his heirs cannot recover. The fraud of Charles Johnston is to be inferred from the facts appearing upon the record from Greens-burg, in the ante-dating of his deed from McDonald and wife — in procuring assignment of the judgments — in the facts that no money was paid at the date of the deed from McDonald — in the haste of his legal proceedings against the property — directing the levy including his own land, and that of defendant in the sale of 21st March, 1825.</p> <p>To which the Court in substance answered:</p> <p>1. The testatum Ji.Jh. from Westmoreland county, although not as correct as it might have been, cannot now be,set aside, nor overhauled collaterally, and must, therefore, be taken to be a valid foundation of a sheriff’s sale and deed, made in puisuance of it</p> <p>2. If the insertion of the 21st of March, 1825, in the sheriff’s deed to Johnston, is -in the opinion of the jury a mistake, and If this be proved to their satisfaction, it will not affect the purchaser’s title. The defendant, McDonald, would have taken advantage of any error, by an application to the Court of Common Pleas before the deed was acknowledged. No such application appears to have been made, but instead of that, it appears that, on the 17th of November, 1825, Hugh McDonald, by his attorney, John McDonald, received the balance of the purchase money,, $432 15 from the sheriff. How far he thereby ratified the sale, and the proceedings before and after it, is submitted for your consideration. In the opinion of the Court it is a ratification of the same. The errors, if there be any in the proceedings, cannot now. be inquired into collaterally in this action.</p> <p>3. If the jury believe that Charles Johnston knew of the sale to Harvy, equity would have confined him, in the first place, to a levy on that part of the tract of land which remained unsold, particularly so, if the jury believe that Harvy paid $200 for his land, and that this sum was appropriated to discharge the debts of Hugh McDonald. But that it was so appropriated, strong and conclusive evidence is necessary, and must appear to the satisfaction of the jury, before it can avail the defendant.</p> <p>4. The jury must decide what effect the evidence of Wilson and Linnard ought to haye as to the deed. In the opinion of the Court, the deed from the father to the sons is fraudulent as to creditors, on its face: the deed from the sons to Harvy is tainted with the same fraud. The deed, as between the parties to it, is good and valid.</p> <p>5. A voluntary, and on the face of it, a fraudulent conveyance, by one in failing circumstances, to his sons, is void as to creditors; and the property conveyed is by law considered a fund for all creditors; and if the conveyance does not provide a mode, or state when creditors are to be paid, the grantees cannot be considered as trustees for the creditors, although it does state that they are first to be paid. If the evidence satisfy the jury that the deed was to save the property, or in other words to delay and hinder creditors, it is as to them fraudulent and void. In a case like the present, the law cannot and will not consider the transaction morally fair and honest, and, at the same time, legally fraudulent and void — it knows of no such distinction.</p> <p>6. The Court do.not think that Charles Johnston can be justly charged with fraud or imposition, in relation to this property, for the reasons mentioned in the sixth point; and that his heirs on that ground would not be prevented from recovering.</p> <p>The jury having rendered a verdict for the plaintiff, the defendant moved for anew trial, and assigned the following reasons:</p> <p>1. The Court erred in admitting to be read, in evidence, the fi.fa., testatum fi.fa. and' venditioni exponas from the court of common pleas of Westmoreland county, and also in admitting the sheriff's deed to be read in evidence.</p> <p>2. The Court erred in charging the jury, that the testatum fi.. fa. issued from the courtj of common pleas of Westmoreland county, was a valid foundation of the sheriff's sale to Charles Johnston.</p> <p>3. In leaving it to the jury to decide whether the.insertion of the 21st March, as the date of the sheriff’s 'sale, recited in his deed and return, to the writ of venditioni exponas, was a mistake, no mistake being proved, or attempted to be proved by plaintiff; and in saying that the receipt of the balance of money arising from the sheriff’s sale, by Hugh McDonald was a ratification of all the proceedings, &e.</p> <p>4. In charging the jury that the payment of the money ($200 received from Harvy by William and J. McDonald) to the creditors Hugh McDonald, sen’r., ought to be proved by stronger and more conclusive evidence than any other facts. This is the plain import of the charge.</p> <p>5. The Court did not answer the fourth point submitted; nor state the legal effect of the testimony of Wilson and Linnard as requested.</p> <p>6. In excluding from the jury the inference of fraud and imposition deducible from the facts referred to in the' sixth point.</p> <p>The motion was over-ruled, and judgment entered on the verdict; from which the defendant appealed.</p> <p>The defendant claims the premises in controversy by virtue of a sale, by the sheriff of Allegheny county, under a testatum venditioni exponas, issued in a case wherein he was plaintiff, against Hugh McDonald. It is contended by us that all the proceedings, subsequent to the judgment, are grossly irregular; that they are not merely voidable, but absolutely void. Under these proceedings it is conceived, a stranger could take no title, but the sherifPs vendee, being the plaintiff in the execution, is affected with notice of these irregularities, and against him, they certainly may be taken advantage of, by a person standing in the situation of the defendant, who claims the premises by virtue of a deed to the date of the plaintiff’s judgment. The ninth section-of the act entitled “An act for taking lands in execution for the payment of'debts,” Purd. Big. 267, provides, that if a judgment, which shall warrant the awarding of the writ of execution, whereupon any land, &c. shall be sold, shall afterwards be-reversed for error, the lands shall not be restored, but restitution-of the money only shall be made. The provisions of this act are clearly just. The judgment is the act of the court, and the purchaser at sheriff’s sale should not be affected by its subsequent reversal; perhaps, even the plaintiff in the execution, relying tipon the judgment of the court, and becoming the purchaser, ought not under our act of assembly, to have the 'sale avoided, by the reversal of the judgment; and so is the case of Arnold v. Gorr, I Rawle, 223. But the irregularities in this case, of which we complain, are subsequent to the judgment; they are the plaintiff’s own proceedings; and he being the purchaser, against him they may be taken advantage of. This is well settled. Goodyer v. dunce, Yelv. 179. Samms’ Lessee v. Alexander, 3 Yeates, 268. Hiester v. Fortner, 2 Finn. 40; opinion of Judge Yeates in page 46, 47. Snyder’s Lessee v. Snyder, 6 Binh. 4-S3, 499. McPherson v. Cunliff, 11 Serg. & Rutóle, 435, 436.</p> <p>But it will be said that these proceedings cannot be inquired into collaterally. If M’Donald himself were the defendant in this ejectment, the circumstances of the case might prevent him_ from now objecting to the proceedings ; he might have been heard when the deed was offered for acknowledgment. But Harvy stands in a very different situation ; and he is certainly entitled to see that there was a good authority for the sale. 4 Wheaton, 503-6. 14 Serg. & Rawle, 181-4.</p> <p>In this case the plaintiff obtained a judgment before a justice, on the 30th September, 1824. He entered it up as a lien on the 1st January, 1825. He issued a fi. fa. to November term, 1824, tested 4th Sept. 1824. There was no judgment to warrant this writ. It is therefore a nullity, and furnished no valid foundation for a testatum. The testatum, fi. fa. was issued to the February term, 1325, tested 4th December, 1824, and filed in the prothonotary’s office of Allegheny county, on the 6th January, 1825. Even if the fi. fa. were regular, the test. fi. fa. cannot be supported. The case of Lesher v. Giehr} 1 Dali.. 330, has settled the law, that a term must intervene after the return- of a fi. fa. before a test, fi. fa. can issue.</p> <p>The vend. exp. was issued on the 7th of April, 1825. — r The sheriff returned a sale made on the 21st of March, 1825. The sheriff’s deed bears date the same day, and recites a sale made on. the same day. The sale was therefore made without a vend, exp. If this proceeding can be sustained, the authority of a number of cases will be subverted. It is settled that in ejectment the sheriff’s vendee before he offers his deed in evidence, must show-a judgment and regular proceedings under it. The deed is not even prima facie-evidence, that- the proper steps were pursued, to .justify the sale.- 4 Wheat. 77. 3 Wash. C. C. R. 546, 550.- 2 Minn. 270. 2 Yeates, 86. 1. Peters’ C. C. R. 64. 5 Serg. & Rawle, 332. 9 Serg. & Rawle, 212,.221. .2 Serg. & Rawle, 53. 6 Serg. & Rawle, 457. Ibid. 173. 1> Yeates, 195. I- Serg,. & Rawle, 92.</p> <p>If we are right in the foregoing positions,- the plaintiff must fail; and the remaining points-need not be laboriously examined. The judge, however, clearly erred in charging the-jury that the deed irom-Hugh McDonald to W. & J. McDonald, under whom the defendant claims, was fraudulent. As explained by the testimony of the scrivener, it was clearly not fraudulent. The intention of the grantor was to appropriate his property, in the first instance, to his creditors. The grantees were trustees for that purpose, and the mere circumstance of a reservation for the benefit of the grantor, after the payment of creditors, does not render the deed fraudulent. 5- Cowan, 447. 12 Serg. & Rawle, 448. 5 Con. Rep. 140. 7 Fichering, 10.</p> <p>Mr. Burhe also.insisted upon the sufficiency of the-other reasons assigned for a new trial.</p> <p>a part, only, of whose argument, the reporter heard.</p> <p>Admitting the fi. fa-, to have been irregular and erroneous?yet it is not void, but only voidable-; and cannot be taken advantage of collaterally, in this action. In an action of trespass against the sheriff he would- be justified by this execution; and if so, the title under it would be good. 1 Ves-. 195. The party may, upon the reversal of the execution, or judgment, b'e entitled to his money, but the title of the vendee, whether he be plaintiff or not, is good.. Yelverton, 179. 8 Colee Re.p. 192. The irregularity-of a fi. fa. returned nulla bona, does not vitiate a proceeding, upon a test. fi. fa., grounded upon it. Cochrartv. Cummin, 4 Yeates, 136. 8 Mod. 2S2. 20 Vin. 261. A sale without a ven. expos, is-good. Willing v. ■ Drown, -6 Serg. & Rawle,■ 458.</p> <p>If there was a mistake in the advertisement, or in the recital in the deed, of tire time of sale, it should have been explained by evidence: — but on the contrary: the facts of the date of the advertisement, and the return of a sale, made on the March, were positively proved. Can the jury presume mistake ? Certainly not. 'Can the jury ■.find that the evidence given by the plaintiff himself is false ?</p> <p>It was fully proved that the deed was made for the purpose of paying all the debts of the grantor ; although by the mistake of the scrivener it was not so stated in the deed: and it was also proved that Johnsion knew this-. After this proof, the judge said that “the deed ivas fraudulent upon its face.,” The transfer of property for the payment of debts, is a lawful transaction, and always has been recognized by our Courts. The time for the payment of the debts is never mentioned in the deed. There is no set form of words necessary in order to raise a trust: and would not a Court of Chancery raise the relation of trustee to -the creditors, under the parol evidence which was given in this cause ? It was a.contract to raise a trust, and the fund was ample for the purpose.</p> <p>Johnston practised a fraud on the law, by taking out an execution, before he obtained his judgment, for the purpose of defeating an honest trust, The deed from -McDonald.to him, and the acknowledgment before his own son were ante-dated: — he purchased up judgment-s to prevent competition in the sale: — he included his own land in the levy: — he entered satisfaction upon •several judgments, which, there is a strong probability, were paid ■by Harvy: — there was indeed a tissue of error and management on the part of Johnsion, from the beginning to the end: — why •should the Court withdraw these'facts'from;the jury?</p>

<p>J. T. died in 1816, indebted to C. T. and J. E., seemed by speciality, each obtained a judgment against the estate of J. T., in 1820: the judgment of C. T. was revived by scire facias, executions issued thereon, and in 1828 the real estate of J. T. was sold by the sheriff. The judgment of J. E. was revived by scire facias, issued in 1826. Held: That each of these judgments was entitled to a pro rala share of the proceeds of sate, which was insufficient to pay both.</p> <p>The debts of a deceased person remain a lien upon his real estate for seven years, and if .a suitfor the recovery thereof is commenced immediately before the seven years expire, the lien is thereby continued for five years longer.</p>

<p>The presumption of satisfaction which arises as to a bond, conditioned for the payment of mony, after the lapse of twenty years, is equally applicable to an administration bond; and the proof of circumstances to prevent the presumption of payment from beginning to run one year after the date of the bond, rests with the plaintiff.</p> <p>The exhibition of an administration account in the register’s office, within the period of twenty years before suit brought, is not such an act on the part of the administrator, as will take the case out of the rule.</p> <p>There is no general rule, in a case like this, by which the force of circumstances of counter-presumption may be safely determined; and the whole may beproperly left to the jury as a matter purely of fact.</p>

IN ERROR. Writ of error to the Common Pleas of Fayette county. This was an amicable action to try the right to the proceeds of a sale by the sheriff, in which the plaintiff in error was the plaintiff below.

<p>.IN ERROR.</p> <p>Writ of error 4o the Common Pleas of Washington county.</p> <p>This was an action of ejectment brought by James Clarice the defendant in error, against Thomas Bavington and others, heirsof John Bavington, deceased, for 400 acres of land. Both plaintiff •and defendants claimed under the title of John Bavington, deceas■ed. The plaintiff, to sustain the issue on his part, gave, in evidence. the title of John Bavington. — 1811, March 21st, the petition of Daniel Bavington eldest son of John Bavington, deceased, for a writ of partition and valuation, stating that the intestate left a widow and eleven children; which was awarded: — 31st October, 1811, inquest returned, that the land could not be divided, and it was valued at $4600: and on the same day, rule at the instance of Daniel, upon the other heirs, to shew cause why he should not take the land at the valuation: — 23d March, 1812, proof of the service of this rule on the other heirs was made: — 2Sth December, 1815, a rule was again taken upon the heirs, to shew cause why the land should not be confirmed to Daniel the eldest son: — 19th June, 1816, the land was confirmed to Daniel Bavington, upon his. entering into recognizance, with sufficient security, to pay over to the other heirs, their respective proportions according to law: — 21st June, 1816, “Daniel Bavington, Thomas Clarice, and Andrew Kerr tent jointly and severally in the sum of $9000, to be void on this condition; that Daniel Bavington pay over to the other heirs and representatives of the said John Bavington, deceased, their respective shares, and pi’oportional part of the said estate.” — 1819, April 12th, judgment John Defrance “against Daniel Bavington for @1600: — June Term 1820, Ji. fa. levied on a traot of land containing 120 acres with a grist mill, saw mill, &c.” which was condemned. In the list of liens exhibited for the condemnation of the property, were included the sums awarded to the different heirs of John Bavington, deceased, by arbitrators, in the case of Daniel Bavington v. Thomas Bavington and others, as will be hereafter referred to. December Term, 1821, ah ven. expos. “Property sold to James Clarice for $640.” December 31st, 1821, deed Bobert Officer sheriff, to James Clarke, “defendant’s interest being the two ninth parts, more or less.” March Term, 1822, fi. fa. for residue: “Levied on the undivided seven ninth parts of a tract of land in, &c„ containing 400 acres, more or less, adjoining, &c. being the residue of the land which was not sold, upon which John Bavington father of Daniel Bavington, lived and died;” which was condemned, &c. 5t.li July, 1825, this fi. fa. levy, and all subsequent proceedings were set aside. September Term, 1825, al.fi. fa. “Levied on all the right, title, interest and claim of the defendant, Daniel Bavington, in a certain tract of land in, &c., containing 400 acres more or less, subject to the previous sale to Daniel Baving-ton and subject to the claims of the heirs in the recognizance in the Orphans’ Court of 1811.” Inquisition held and condemned. Ven. expos, to December Term, 1825, which was returned, “sold to James Clarke for $700: to whom sheriff. Workman ánade a deed, 27th December, 1825.</p> <p>The defendants, to sustain their defence, produced and offered James Stevenson to prove, that at the time of holding the inquisition, under the writ issued by the Orphans’ Court, the inquest was.directed by Daniel Bavington, and his brethren not to attempt a division of the land into two or more parts, but to appraise and value it merely; that they had agreed to work together upon the land for some time, and afterwards Daniel and his brothers had agreed to make a division of the land between them, and to pay their sisters their proportions in money. And further, in connection with this proof, the defendants proposed to prove, that an agreement to this effect was reduced to writing and signed by Daniel and his brethren; and in pursuance thereof, an artist was employed in the fall of 1S14, to make partition according to the terms of the same: that such partition was made, by running ,and marking the lines thereof on the ground; and that Daniel took possession of the purpart and allotment of the land, which, by their agreement, fell to him; and his brothers their respective portions. In connection, also, with the submission of Daniel Bavington and his brothers and sisters of all matters in variance between them, embracing the decree of the Orphans’ Oourt, and their respective rights to the land in dispute, to the final award and arbitrament of David Shields, Daniel Moore, Thomas Mc-Giffin and Thomas McKennan, and the award of the arbitrators. The plaintiffs’ counsel objected to this testimony, and read the affidavits of Ruth Thomas, John Bavington, David Crawford, John Malone, Robert Patterson, John McDonald and Andrew Kerr, filed in the Orphans’ Court, to prove that objections were made to the making of the decree, and were passed upon by the Court. They also called Daniel Bavington a witness, who said, that the written agreement referred to by the defendants, and offered to be given in evidence, was read in court by Mr. Jennings, who was counsel for some of the heirs of John Bavington, deceased; but when, or whether at the time the Orphans’ Court decreed the land to him, witness cannot recollect. He further says, that Mr. Jennings was employed by Backhouse and Peterson, husbands of two of the daughters — was not employed by witness — understood by his pleading that Mr. Jennings was employed for all against him.</p> <p>Judge Mercer, being called, further stated, that he had an impression on his mind, that at the time the decree aforesaid of the Orphans’ Court was made, that all the matters and things proposed by the defendants to be given in evidence, were examined into and heard, but cannot be positive.</p> <p>The Court rejected the evidence of the agreement between the heirs, as offered to be proved by James Stevenson, to which the. defendants took an exception.</p> <p>The defendants then read the following submission •:and award, viz:</p> <p>Washington county, ss. In the Common Pleas, No. 21, September Term, 1819.</p> <p>Daniel Bavington y. Thomas and Henry Bavington, C. B. Peterson and wife Elizabeth late Bavington, Thomas Back-house and wife Sarah late Ba-gton, Ruth Bavington, inns, Thomas Burns and wife Cath-arine late Bavington, Nancy Hartford, Polly, John, and Charles Bavington.</p> <p>Amicable Action.</p> <p>In order to adjust, and finally settle the disputes of the parties, and the claims of each, either as they relate to real estate or personal accounts, it is hereby agreed and -stipulated, that all matters at variance between the parties, touching either real or personal estate .or accounts, shall be and are hereby submitted to the decision and determination of Thomas Me Gif in, Th. M. T. McKennan, David Shields and Daniel Moore, or ,a majority of them; the meeting to take place on the premises, -on Monday the 12th day of July next. This agreement, and the decision which may be made thereupon to be final and conclusive between the parties, May 12th, 1819.</p> <p>July 13th, 1819. It is hereby further explained, that by the power above conferred, the parties meant, and now agree, that they will be bound by any decree the arbitrators may make; whether that be for a sale of the estate real or any part thereof, or for a division among spme of the members of the family, of the. real estate, and charging the parties to whom parts of the real •estate may be set-off and allotted; charging those who may receive parts of the real estate with certain sums, such as the -arbitrators may award in favor of those who may receive no part of .the real •estate.</p> <p>Award. — In pursuance of the annexed agreement, we have proceeded to the hearing of 'the parties, their-witnesses and counsel; and after due examination, we do award and decree as -follows:</p> <p>1. The plaintiff is not entitled in law or equity, to the property under the decree of the Orphans’ Court, under which he claims.</p> <p>2. He is not entitled in law or equity -under the agreement signed by the principal members of the heirs, and dated the 15th day of February, year unknown.</p> <p>3. We find that the plaintiff is entitled to the sum of $1000 for_extra labor and service, in relation to the estate, and for moneys paid by him on account of the estate of his deceased father; and we do adjudge and award, that the same be deducted from the aggregate valuation of the estate, to be in full of all claim and charges against the estate, and each member of the family.</p> <p>4. We find, that the tract of land whereupon the mill, mansion house and other improvements are erected, containing 435 acres, strict measure, may be divided into three shares, which is accordingly so done, in the following manner, to wit, 120 acres, strict measure, (as per diagram No. 1, hereto annexed,) whereupon the mill is erected, and the house where Daniel resides, to be one share, or portion; which is selected by, and awarded to Daniel, the oldest son, and is appraised at $6000; and we do hereby award and decree that the said Daniel Bavington pay his mother, Ruth Bavington, widow and relict of John Bavington, dec’d. in semi-annual instalments, $100 per year, for and during her natural life; to be recovered by distress, if not punctually paid; and to be and remain a lien and incumbrance upon his portion of the land and estate. That the said Daniel shall pay to Nancy Harsford, late Bavington, the sum of $924 81, in the following manner, to wit, $616 61 on or before the first day of April next, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, aforesaid. The said payment to be a lien until satisfaction shall be entered therefor of record. We further award and decree, that the said Daniel shall pay unto John Bavington $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments to be a lien as aforesaid. We do further award and decree that the said Daniel shall pay the heirs and legal representatives of Margaret Wright, late Bavington, deceased, $924 91: $616 61 on or before the 1st April, 1820, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien upon the property as aforesaid. We do further award and decree that the said Daniel shall pay unto C. B. Peterson and Elizabeth his wife, the sum of $375 43: $250 29 on or before the 1st April, 1820, and $125 14 within thirty days after the death of Ruth Bavington, widow as aforesaid. The said payments to operate as a lien on the land as aforesaid.</p> <p>5. We do find, that Daniel Bavington the plaintiff is entitled by purchase to the share of Charles Bavington, in the above described land, belonging to their father J. Bavington; and do award and decree the same to him.</p> <p>6. We do further award and decree, that the portion of the said tract of land which is embraced in survey No. 2, hereto annexed', containing 117 acres, strict measure,be set apart, and is adjudged to Henry Bavington; (Thomas Backhouse and Thomas Savings ton becoming securities for the payment of the dower and distrib-utary shares charged thereon,) and we do value the same at $2700,. and do decree, that the said Henry pay to Buth Bavington $54 per annum, during her natural life; to be paid semi-annually; recoverable by distress, and to remain a charge or lien upon the land. We do further award, that the said Ruth Bavington be-permitted to reside in the mansion house, if she thinks proper, during her natural life. And we do award and decree, that the said Henry shall pay to Thomas Backhouse and Sarah his wife, late Bavington, or the lawful heirs of the said Sarah $524 91: $616 61, on or before the first day of April, 1820’, and the remaining $308 30 within thirty days after the death of the said Ruth Bavington. And we do further award and decree, that the' said Henry pay unto Thomas Burns and wife Catharine, or the lawful heirs of the said Catharine, $850 18: $566 79 on or before the 1st April,. 1820, and $283 39 within thirty days after the death of the said Ruth Bavington. The said payments to remain as a lien or charge upon the said portion of the land.</p> <p>7. We further award and decree the remaining portion of the said land, which is embraced in survey No. 3. hereto annexed, containing 1SS acres strict measure, to Thomas Bavington; and do value the same at $2124; and direct that the said Thomas pay to Ruth Bavington, widow and relict as. aforesaid, the sum of $42 48 per annum, to be paid semi-annually, recoverable by distress, and to remain a lien or charge upon the said portion of land. And we do further award and decree, that the said Thomas pay unto his sister Polly $924 91: $616 61 on or before the 1st April 1820, and $308 30 within thirty days from and after the death of Ruth Bavington, widow as aforesaid. The said payments ten remain as a lien and charge upon the said portion of land, until they are satisfied. We do further award and decree, that the said Thomas pay unto C. B. Peterson and Elizabeth his wife, or the legal heirs of the said Elizabeth, $199 46: $132 99 on or before the 1st April, 1820, and $66 49 within thirty days after the death of the said Ruth Bavington. The said payments to remain a lien as aforesaid. We do further award and decree, that the said Thomas pay to Thomas Burns and wife Catharine, or the legal . heirs of the said Catharine, $74 42: $49 82 on or before the 1st April, 1820, and $24 90 within thirty days after the death of the said Ruth. The said payment to remain a lien as aforesaid.</p> <p>8. We do further award and decree unto C. B. Peterson and Elizabeth his wife, and to the legal heirs of the said Elizabeth, 100 acres of ;land, more or less, belonging to the estate of John -.Bavingtan, deceased, situate in the state of Ohio, being lot No. 2, in the 1st Quarter, 9th Township, 8th '¿Range of the tract appropriated for satisfying warrants for military.services; which we value at $350; which together with the sums to be paid them by Daniel and Thomas, constitute their share of $924 91.</p> <p>9. The costs to be divided equally among all the heirs.</p> <p>10. We do further award and decree, that all the accounts between each and every member of the Bavington family have been adjusted and settled; and ’that no one member has any claim ■against any of the others, farther than mentioned in the above award or decree. Daniel is entitled to credit for any monies he has paid Mrs. Hartford, on account of her share in the estate since May, 1814. - In testimony whereof we have hereunto set our hands and seals this 14th day of .Tuly, 1819..</p> <p>Th. -MeGriffin, [Seal.]</p> <p>Daniel Moore, [Seal.]</p> <p>D. Shields, [Seal.]</p> <p>Th. M. T. McKennan, [Seal.]</p> <p>The defendants then gave some parol evidence to prove, that, at >ihe time of the sheriff’s sale, James Clarke knew'of this proceeding between the heirs; and then said, that he-was “buying a lawsuit."”</p> <p>The defendant’s counsel then asked the Court to charge the jury in favor of the defendant, on the following points,'viz.</p> <p>1. That the recognizance entered into by Daniel Bavington and the securities is defective, and therefore void.</p> <p>2. That as Daniel Bavington never entered into a validtrecog-nizance, the decree is therefore invalid, and gave no title.</p> <p>3. If this position is correct, that Daniel Bavington had only an individual interest; it was therefore competent for him and his brothers and sisters to make the arrangement for partition, notwithstanding the judgment had attached in the meantime.</p> <p>4. That said partition having been made, the judgment must ■attach to the share that had been assigned to Daniel, and more especially, as the judgment creditor, by his levy on that share, and -the description, recognized the partition which had been made, and also by giving in evidence to the jury of inquest, the list of liens, created by the award of the arbitrators appointed to •make the partition.</p> <p>5. That although the recognizance may not be so defective as to be void, yet Defrance, the judgment creditor, has, by his proceeding on his judgment, recognized the partition, by taking that part assigned to Daniel, and describing it as set forth by the ■■arbitrators, and by his exhibiting the award and the liens created to the Inquest.</p> <p>6. That the purchaser at sheriff’s sale being fully apprised of all this, as appears by his declaration, that the title was not good, all equity is taken away from him; and he is left in no better situation than the judgment creditor stood in.</p> <p>Which instruction the Court refused to give, but on all the points gave their opinion in favor of the plaintiff. To which opinion of the Court the defendant’s counsel excepted.</p> <p>A verdict and judgment were rendered for the plaintiff.</p> <p>The opinion of the Court, rejecting the parol evidence men, tioned in the bill of exception, and their charge to the jury were assigned for error.</p> <p>It did not certainly appear whether the agreement between the heirs of John Bavington had been passed upon by the Orphans’ Court, when ' they confirmed the land to Daniel; it should therefore have been submitted to the jury as a matter of fact, whether it had been or not. This agreement would have established the fact, that the land was awarded and confirmed to Daniel, in trust for himself and all the other heirs. The subsequent submission and award was a declaration of that trust, and a division of the trust estate. Nor was such division either an actual or a legal fraud upon the judgment creditor of Daniel Bavington; for it was a proceeding and result which any one of the heirs of John Bavington, dec’d. might have instituted and produced: and that which one may be compelled to do, by a legal proceeding, he may do amicably and by consent; and when done, all are bound by it. Coke Lit. 172. a. Zouch ex dem v. Persons, 3 Burrows, 1801.</p> <p>The lien of the judgment would attach to that part of the land which, by the award, was allotted to Daniel. Jackson v. Pierce, 10 John, R. 414.</p> <p>The judgment creditor recognized the validity of the partition between the heirs, by levying on the part allotted to Daniel; and by exhibiting to the inquest, which condemned'the land, the liens which were created by that amicable partition.</p> <p>The adjudication to Daniel Bavington was made upon the fullest hearing before the Orphans’ Court, and after the date of the agreement between Daniel and the other heirs. Could this adjudication be avoided or affected by a prior agreement between the parties in interest, when that effect is to operate upon a stranger to the agreement, who purchased afterwards a title founded upon spch adjudication of a Court pf record, In contemplation of law, the Orphans’ Court must have been satisfied, that the agreement was rescinded: at all events it is enough to know that that Court had power to pass upon its effect, and they did so. Thompson v. Tolmie, 2 Peters’ U: S. Rep. 162, Per kens v. Fairfield, 11 Mass. 227.</p> <p>The decree was made to Daniel Bavington, upon his entering into a recognizance conditioned for the payment to the other heirs,'of their share: this he did, do.. The act of assembly requires no set form of words to make a recognizance: a mere acknowledgment of indebtedness to the other heirs, entered of record, and which is a lien upon the land, Is sufficient. That it should be taken in the name of the Commonwealth is not required j nor does the practice of our Courts generally sanction such a mode, Welsh v. Vanbebber, 4 Yeates, 559. ■</p> <p>This case is, in a few words, this: that there is a regular proceeding in the Orphans’ Court, by which the title to the land is vested absolutely in Daniel Bavington; after which a judgment is obtained against him, which is a lien upon the land- And it is Contended by the plaintiff in error, that the person thus vested with the legal title, subject to this, lien, has it in his power tó make an arrangement with his brothers and sisters, by which the judgment Creditor is deprived of his vested rights.</p> <p>As to the knowledge of Clarke it does not affect the question ; for it Was a knowledge that a transaction had occurred, without his participation, adverse td his rights, and by which he was not bound. His recognition, of the division would not destroy his rights ; any thing he did was for the benefit of the defendants, by levying on and selling a part only of the land.</p>

<p>A being’ indebted to B, held certain choses in action, which he assigned to C without consideration, and took the'benefit of the insolvent law. Held: -That if this arrangement was made between A and C for the purpose of preventing fS from recovering his debt, that they are both liable in an action for a conspiracy at the suit of B.</p> <p>Such action will not abate upon the death of the plaintiff, but will survive to his personal representative.</p> <p>Quire. Will it survive, upon the death of the defendant, against his personal representative?</p>

<p>Oae who executes a note as a surety, and giv^s it to the principal to be executed by him, and delivered to the payee, but who before so doing alters the amount mentioned in the note from a greater to a less sum, cannot take advantage of such at, teration upon the plea of non edfucfnm.</p> <p>Nor does it affect the validity of a note, that it was executed by ope of the payors in the presence of one witness, and by the other, in the presence of another; although it purports to be executed by both, in the presence of two subscribing witnesses.</p>

<p>One partner is not a competent witness for his co-partner, in an action brought against him, which arose out of a partnership transaction: nor can he be made so by a release from liability to contribute.</p>

IN ERROR. Whit of error to the 'Common Pleas of Crawford eounty. This was an action on the case, brought by Michael Cowles, against Oliver -Cowles. The plaintiff filed a declaration containing four counts, 1st. For money had and received. 2. For money lent. 3. For work and labour done. 4.

IN ERROR. Error to Mercer county. This was an action of ejectment, in which the plaintiff in error was the plaintiff below: brought to compel the payment of the balance of purchase-money of'a tract of land.

IN ERROR. Writ of error to the Court of Common Pleas of Craivford county. This was an action on the case, for a malicious prosecution, brought by James Cotton against Harm Jan Huidekoper. Plea, not guilty. The plaintiff had been indicted in the Quarter Sessions of Warren county, for shooting at the defendant, with intent to kill him.

IN ERROR, Error to Crawford county. James Marriott and William McOrady of the one part, and William Le Barron of the other part, entered into an article of agreement, by which the party of the first part were bound to deliver to the party of the second part a certain quantity of timber, at specified prices.

<p>If a jury, in an action of ejectment, find a verdict for the plaintiff, and that he shall pay the defendant a specified compensation for improvements, and make that a condition of the recovery, a judgment upon such finding would be erroneous. But if in such case the jury award a just compensation to the defendant for improvements, it is uncertain; and perhaps would not vitiate the part which is certain, the verdict being complete without it.</p> <p>A verdict, in an action of ejectment, for the plaintiff, and which gives costs to the defendant, is bad, and would be reversed on error: but it cannot be treated as a nullity.</p> <p>When damages, or costs, or both ought to be .assessed, if the jury omit to assess either, the plaintiff may still make the verdict good, by releasing his right to either or both.</p> <p>The waiver of a writ of error by the plaintiff, in this case, is, in effect, a waiver of costs.</p>

IN EUROS. Error to Crawford county. This was an action of trover., brought to recover the price of •a mare and two colts, by Eleanor AUen against Moses Allen. The mare belonged t.o the plaintiff; the evidence .of the manner in which the defendant obtained the possession of her and her colts, was thus'stated by a -witness.: “The plaintiff told the defendant, she had brought'her mare there to be kept for her service or work ; that she, had no pasture.

<p>IN ERROR.</p> <p>Error to Warren county.</p> <p>This was action of debt brought by James Green for the use of Benjamin Chamberlin against Daniel Hern, sheriff of Warren county, for an escape.</p> <p>The plaintiff’s evidence fully established the fact, that Hugh Nesbit was put into the custody of the defendant, by authority of an execution, issued at the suit of the plaintiff; and that he escaped, by breaking the wall around the jail-yard. •</p> <p>The defendant offered to prove, that the jail and jail-yard of the county were defective, and insufficient to keep prisoners; and to shew, that they had been examined by the grand jury,- and presented to the Court as insufficient.-</p> <p>To this evidence the plaintiff objected ;• but the Court overruled the objection and received the evidence. Exception was taken By the plaintiff.</p> <p>The defendant offered to prove a custom or common law in Pennsylvania, that debtors be permitted the use of the jail-yard in day-light. -</p> <p>This was also objected to ; but the objection was over-ruled and-exception taken by the plaintiff.</p> <p>Several points Were submitted to the Court by the counsel on the one side and the other, upon which they were requested to charge the jury, the substance of all which was this:—</p> <p>That if the jury find, that Hugh Ñesbit was committed to prison, on an execution, at the suit of the plaintiff; and that the' sheriff or his jailor suffered him to escape; he' rs liable for the' debt, interest and costs, for which he was committed; and that nc deficiency in the strength of the jail will excuse him»</p> <p>The Court did not-answer this affirmatively; but said that the least negligence on the part of the sheriff would make him liable.</p> <p>The admission of the evidence mentioned in the bills of exception, and the charge of the Court, were assigned as error.</p> <p>It is a well established principle of law, that when a defendant is put into the custody of -the sheriff, he is liable for him, until he is legally discharged ; not even a forcible rescue would exonerate him from liability. If it was not so, the objects of justice could not be obtained, such a door would be opened to fraud and connivance, that no plaintiff, with all the means in his-power, could ever detect.</p> <p>In England the jailor kept his prison where he pleased, he was therefore liable at all events; not so here; for he must take and use the common jail, as he finds it: and has no right to expend even his own money in making it a safe place for prisoners. By the common law of Pennsylvania the jail-yard is a part of the prison ; and it was competent for us to prove that custom. Shewel r. Pell, 3 Yeates, 17.</p>

This was an appeal from tfee Circuit Court of Westmoreland ■county.

IN ERROR. Error to the Common Pleas of Indiana county. This was a feigned issue, to try the right to money in the hands of the sheriff, in which the plaintiff in error was plaintiff below. The case is sufficiently stated in the opinion of-dhe Court.

EkkoR to the Common Pleas of Westmoreland county. This was an action of ejectment for 142 acres of land, in which the plaintiff in error was the plaintiff below. A special verdict was agreed upon between the parties. The following facts, therein contained, are alone material.

Writ of error to the Common Pleas of Westmoreland county. This was an action brought by George Hamill against William Purvis and Robert Purvis: William not being a resident of the county, the writ was served on Robert alone. The plaintiff stated his cause of action to be, that on the 6th February, 1819, at Cumberland county, William Purvis exiá Robert Purvis obtained a judgment against Thomas Coffey and John Coffey for $756 65 debt, besides costs.

IN ERROR. Error to the Common Pleas of Westmoreland county. This was an action of ejectment, to recover a tract of land, in which the plaintiff in error was the plaintiff below. This case covered a good deal of paper, as presented to this Court. There was much testimony, and that somewhat different, though not exactly contradictory. It presented this case.

<p>The Legislature passed an act, to authorize the incorporation of a company for the purpose of making a turnpike road, between specified points y books were opened by the commissioners appointed to take subscriptions of stock, at two different places on the contemplated route ; but subscriptions to an amount sufficient to authorise the granting- of a charter, were not obtained. A supplement to the original act was then passed, which divided the contemplated road into two parts, authorized the granting of two charters, and provided, that those who originally subscribed for stock, at a certain place, should be members of one of the companies; and those who subscribed at another place, should be members of the other. Held: That tlie latter act is unconstitutional: and that one of said companies cannot recover from an original subscriber, the amount of stock subscribed by him.</p>

<p>In an action of covenant upon a warranty of title contained in a deed of bargain and sale, the plaintiff offered in evidence the deeds a copy of an action of eject, ment by which he was evicted, together with depositions to prove that the evic. tion was from the same land as ¿escribed in the deed ; which the Court over-ruled on tjhe ground that it did not so identify the laud as to support .the plaintiff’s cause of action. Held to be error.</p>

IN ERROR. From Westmoreland county. This was on action of debt on a note under seal, in which Nancy Patterson, administratrix of Thomas Patterson, was plaintiff, and Thomas H. Patterson was defendant. It was a joint and several note by the defendant and John Patterson: but this suit was against Thomas Patterson alone. Plea, non est factum.

IN ERROR. Error to Westmoreland county. The West mor eland bank of Pennsylvania brought-suit against William Johnston and John Ramsey, to May term, 1820. It was brought to recover the amount of a note drawn by William Johnston, and indorsed by John Ramsey, for the sum of $2,00Q, sixty days after date, and discounted at the said bank.

CurtioRAki to the Court of Quarter Sessions of Cumberland county.

<p>IN ERROR.</p> <p>Error to the Court of Common pleas of Bedford county.</p> <p>The plaintiff in error, who was also plaintiff below, brought suit against the defendant to recover the difference between the amount .which had been bid by him for the real estate of John Moore, deceased, at a public vendue held by Barclay and ,Jlshcom, administrators with the will annexed of the said Moore, and the sum for which at a subsequent sale they sold it to another, after the defendant had refused to'carry the contract into execution. The defendant resisted the recovery on the ground that the land sold had been advertised as “300 acres of patented land,” and as he alleged he had bought by the acre, that quantity only, he contended he was not bound to take 345 acres and 35 perches, •the quantity which the tract, by a survey subsequently made, was ascertained‘to contain. And as there had been a mistake as to this excess, he insisted that he was entitled to be relieved from his contract on this ground. Much evidence was given on both sides as to this point.</p> <p>The land sold was contained in two patents to John Moore, the one for 99 acres and 11 perches, the other for 129 acres and 103 perches: of which it seemed that John Moore in his life time had sold 21 acres, off the 99 acre tract</p> <p>On the 18th February, 1825, the administrators, Barclay and Ashcom, in pursuance of the power vested in them by the will of Moore, advertised in a newspaper published- in Redford, the sale of this land. So much of the advertisement as is material was as follows:</p> <p>“Will be sold on the 14th of March, 1825, the mansion place containing 300 acres of patented land, and the usual allowance for roads, &c. One third of the purchase money in hand. Should the highest bidder fail to comply with his bid, the sale to be returned to the next highest bidder if he choose to take it. The residue in three equal annual payments without interest, to be secured by bonds and' mortgage.”</p> <p>It was proved that at the time of the sale, and before it commenced, the quantity contained in the tract, was the subject of conversation, that Mr. James Piper, a surveyor, said that he had run some of the lines or saw them run, and that he would war-pant it to hold out 300 acres, and that Mr. Barclay then said “they would sell it at 300 acres, more or less ; and it should be measured ; and that they would sell it by the acre.” That it was put up and the bidding commenced with spirit, and after some iirpe it was struck down to Smith, the defendant, at $18 per acre. Many witnesses were examined to prove what had taken place at the sale, who proved that it was generally understood and supposed by the bidders, that the tract would contain 300 acres., exclusive of the land which had been sold off; although the quantity called for in the patents was less, and that it was taken to be 300 acres “by those who were making their calculations, and bidding.” All the witnesses agreed that it was cried by the acre.</p> <p>Ashcom, the plaintiff, having executed a release to George Moore and others, and paid into Court a sum sufficient to cover the costs in • the Common Pleas, and Supreme Court, was rer ceived as a witness, and a bill of exceptions to his admission seabed.</p> <p>He testified that on the morning of the sale the defendant had taken him to one side, and asked him “how he intended to sell this land?” that he told him, “by the acre, we dont know what quantity there is, and therefore we will have to get it surveyed,” that he had no doubt that it would hold out 300 acres, although affer deducting the land which had been sold off, the patent called for 279 or 280 acres. The witness also stated that he was mistaken in the quantity of land, and he believed that every' man there was mistaken.</p> <p>It was in proof that after the property was struck off to Smithy and for some time after, before a survey was made, he expressed great satisfaction with his bargain.</p> <p>A few days after the sale the defendant called on Mr. Barclay and offered to make the first payment on account of his purchase, according to the quantity called for by the patent. Barclay said be was not quite ready for him; that the land would have to be surveyed to ascertain the number of acres, and that he would then get his deed; that it was then written, and when the survey was made the blanks would be filled up.</p> <p>Two surveyors were then proposed to the defendant by Mr. Barclay, either of whom should make the survey. But whether the defendant agreed to the selection of a surveyor, and acquiesced in making a survey, or insisted on having the land according to the patent, and advertisement, and that no survey should be made, were points about which conflicting evidence was given. It'seemed however that Smith agreed to be present when the survey was made.</p> <p>Some time after a survey was made by Mr. Patterson one of •the persons who had been named to make it. The defendant was present. The lines were found to be longer than the patent called for. The line going up the mountain called for fifty-one and one half perches, at which the surveyor stopped, but Mr. George Moore, a son of the testator, said, the corner was higher up ; and they run out so as to make this line seventy-two perches. ,It was in proof that the orchard was up to the mountain line. This survey ascertained the quantity to be 376 acres and 41 perches, strict measure, and 354 acres and 162 perches with the allowance. Smith appeared dissatisfied when the land was extended up the mountain. The land above 51! perches was of little value.</p> <p>O.n the 30th March, 1825, the administrators executed a deed to the defendant, according to Patterson’s survey for 376 acres 41 perches, which they tendered to him, but he refused it and objected to the quantity of the land, and that if he took it he would be compelled to pay more money than he expected. On the 11th April following, the administrators served the defendant with a notice in writing, that “ If he did not before the 16th day of May next, come forward and comply with his contract for the purchase of th,e mansion place of the late John Moore, Esq. deceased, by paying the one-third of the purchase money, and giving bond and mortgage for the residue, according to the terms of his purchase, made on the 14th day of March last, they would on the said sixteenth day of May, expose the said premises again at public sale, and bring a suit or suits against him for the difference, if any there should .be, in the sales, and also for the other damages and losses sustained by the estate of the said John Moore, by his ¡refusal to comply with said contract. ”</p> <p>And on the 29th of April they advertised the land to be sold on the 16th of May.</p> <p>After this another survey was made by the procurement of the administrators, by which the tract was made to contain 345 acres and 35 perches, and the allowance, and on the 18th June the administrators executed another deed to the defendant for 345 acres and 35 perches, according to this survejq which on the same day they tendered to him and served him with the following notice:</p> <p>“Sir — Tate notice that on the 20th day of June inst. unless before that day you comply with your contract for the purchase of the mansion place of John Moore, Esq., deceased, made on the 14th day of May last, agreeably to the terms of the said purchase; the undersigned administrators with the will annexed of the said John Moore, deceased, will again expose to sale by public vendue on the premises, the said mansion place, and will bring a suit against you for damages for non-compliance'with the said contract, and for whatever difference there may be between the two,sales.-”</p> <p>Mr. Smith refused to accept this as he had done the first deed tendered- to him. The land was frequently afterwards exposed to sale by the administrators, and was finally sold by public ven-due on the 5th of April, 1826, to Jacob Barndollar, at $10 26 per acre.</p> <p>The Court charged the jury among other things:</p> <p>“Our first inquiry will be, how was the land sold? - Is it not manifest it was sold by the acre? and is it not clear that the parties estimated the quantity at 300 acres, a little more or less. The effect of the words ‘ more or less’ has not been well fixed by judicial decisions. In Pennsylvania, where the contract is consummated by delivery and acceptance of a deed on the one side, and the giving bond and mortgage on the other; the vendee will hold all the surplus land within the boundaries, without paying for it — and generally he will not get any deductions, because he does not get the estimated quantity.</p> <p>“While the contract is in 'fieri, and when there is to be a survey, the actual, quantity is to be paid for, and the actual quantity will be the true'contract of the parties. In Frederick v. Campbell, Judge Duncan says, ‘more or less’in a conveyance sometimes extends to a small difference, sometimes leaves the. quantity indeterminate. In Virginia, ‘more or less’ is restricted to a reasonable or usual allowance for small errors in surveys and for variations in instruments. •.</p> <p>“It has been decided in England that the words ‘ more or less’ ought only to clear a small deficiency when the contract rests in fieri. Here the patent calls for 298 acres and 114 perches, 20 acres or thereabouts had been sold off. The patent quantity left was about 279 acres. Piper had given notice-that the lines were longer on the ground than they purported to be, and that he was very confident there were 300 acres Or a little more. Morrison swears that Mr. Barclay, one of the administrators, then said, we will sell it at 300 acres more or less, it should be measured and they would sell it by the acre. You have heard the evidence as to the admeasurement, that there was a large surplus. The first deed tendered for 376 acres, 4Í perches, and the second fox” 345 acres, 35 perches. The plaintiffs themselves have shown by their own conduct, that ¡Smith was not bound to accept the first deed. Was he bound to accept the second? This matter will depend on a number of considerations. It is a general principle that agreements relating to real or personal estate, if founded in mistake, will for that reason be set aside. Were the parties mistaken in the quantity? You have heard the evidence of Mr. Jlshcom, one of the administrators; he swears that he was mistaken in the quantity, and he adds that he believes every man there was mistaken. He further swears that Mr. Smith, when the first deed was tendered, said there was too much land, and that he expressed no dissatisfaction unjtil after the survey was made. If there was a clear mistake in the quantity, either party is entitled to be relieved from that error. Here no agreement had been made. It was a public sale, and we, think, if you are satisfied', that the defendant believed, and he had reason to believe from-the advertisements and the information given by the sellers, that the tract only contained 300 acres, or a little ‘ more or less,” he was not bound to take the 345 acres. The difference was $814 75, a large sum to a farmer — a sum that might on a mortgage, sell the best plantation in the country.'”</p> <p>A verdict having passed for the defendant, the plaintiff brought this writ of error and assigned for error,</p> <p>“1. That the Court erred in. that part of the charge, where they instruct the jury, that if they were satisfied that the defendant believed, and had reason to believe, from the advertisements, and the information given by the sellers, that the tract only contained 300 acres or a little 4 more or less,’ he was not bound to take 345 acres.</p> <p><c2. The Court erred by submitting it, under the facts disclosed in this case to the jury, as a question of fact for the jury to determine whether the defendant was mistaken in the quantity of land contained in the tract sold, with instruction that if he were, he was not bound to comply with: the contract.</p> <p>¿<3. Also as to the meaning of the words ‘ more or less.’ ”</p> <p>Argued that the Court erred in charging the jury,- that if the defendant believed that the tract contained 300 acres, or a little' more or less, he was not bound to take 346 acres.</p> <p>Where the parties treat upon the basis, that the fact which is-the Subject of the agreement, is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the contract will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party, which would affect any other contract. Perkins v. Gay, S Serg. & Bawle 327.</p> <p>The mere circumstance of the advertisement describing the' tract of land as containing 300 acres, is not of itself sufficient to prevent a chancellor from compelling the execution of the contract, although it turned out that there was an excess of 45 acres1 ascertained by the subsequent survey. Boar y.Moore’s administrators, 1 Serg. & Bawle, 166.</p> <p>It was not pretended that there was any fault in the administrator. He had used no artifice, nor made any representation to induce the defendant to purchase, or believe there was not a greater quantity than SOO acres in the tract.</p> <p>Where the words “ more or less ” are used they show the understanding of the parties to be that the contract is not to be affected by a deficiency, or surplus of quantity, and in such case, chancery would not interfere. Glen v. Glen, 4 Serg. & Bawle, 4SS. Large v. Penn, 6 Serg, & Bawle, 4S8.</p> <p>Where a sale of land is by the acre, the right of ascertaining, the quantity by a survey exists, whether reserved or not, and if no time be limited, it may be. done at any time before the business is closed.' Bailey v. Snyder’s administrators, 3 Serg. & Bawle, 160.' ■</p> <p>Contended that the contract was by parole and executory; and if equity would not decree a specific performance of the contact, the plaintiff should not be permitted to recover in-this suit,, which is an equitable action: and he contended that the performance of the contract would not have been decreed.</p> <p>The plaintiff before he asks equity must do equity. By his advertisement, and a reference to the patents he induced the belief that the tract of land sold contained the specific quantity of 300 acres. This was not mere description, but substance, upon which every bidder made his calculations, and measured the extent to which in prudence he could go. As to this quantity there was a plain mistake, the plaintiff himself stated that he had been mistaken, and that every bidder on the ground was mistaken as to the quantity. The mistake was mutual, and when a contract is made upon a mistake, equity will not interfere to enforce it. Sugd. on Ven. 22. 2 Hen. & Mum. 174. Sugd. on Ven. 167.</p> <p>So where a vendor gives a false description, equity will not decree-a performance of the contract. Sugd. 211, M’Ferran v. Taylor, 3 Crunch. 270.</p> <p>In the case of Bailey y. Snyder's administrator, the contract was executed, and equity could not relieve in such place, unless positive fraud was established, but in the case at bar, the contract Ivas in fieri, and the plaintiff called on equity to support it.</p> <p>He contended, that the advertisement of the administrators as to the quantity of the land, amounted to an assertion on their part which they were bound to make good. Frederick v« Cambell, 14 Serg. & Rawle, 293. 2 Sell. & Be/. 554.</p> <p>The parol testimony is to be taken in connection with the ad-Vei’tisement. Taking all the evidence together, it appears that although it was supposed there were but 300 acres in the tract sold, the quantity was considered uncertain ; and it was agreed that this uncertainty should be brought to a certainty by an actual survey. The question then comes to this, whether the circumstance of the ascertained excess of forty-five acres, afforded evidence per se of such mistake, that the defendant had a right on this ground to rescind the contract. There was no suppression of the truth, no suggestion of--a falsehood, but both parties were equally ignorant of the subject of the contract, and both treated of it as uncertain; as the subject of conjecture; and to be reduced to certainty in future. In such case chancery will not interpose to relieve a party from his contract. 1 Mad. Chan. 76.</p> <p>Here too the parties had equal means of information as to the subject-matter of the contract. 1 Call. 320.</p> <p>Should the doctrine laid down by the Court prevail, no contract which is not specifically certain, would be permitted to stand.</p> <p>The quantity of the land was a mere matter of description; the substance and essence of the agreement was that the administrators should sell and convey, and the defendant should buy the land, and pay so much for every acre it contained. Perhaps where the quantity of the excess or deficiency was so great as to ¡.fiord internal evidence of a Very gross mistake, equity might relieve, but that was not the case here, the excess was- not such as to produce evidence of serious misapprehension.</p>

<p>When under the act of the 20th March, 1810, “regulating1 arbitrations,” one of several defendants enters an appeal from the award of arbitrators, takes .the oath, and enters into a recognizance with bail in his own name only, it is but an appeal for one, and amounts to a severance, as much as if the co-defendants had come into Court and disclaimed the appeal.</p> <p>Nor will an amendment be permitted, so as to make it an appeal for all the defendants, upon parol testimony that it was the intention to appeal for all.</p> <p>By the return of the sheriff of a sale of land, and the acknowledgment of the deed, the title to the land is vested in the purchaser, and the sheriff becomes fixed for the amount bid. ,</p> <p>The acknowledgment of the sheriff’s deed is not conclusive evidence of delivery, but taken in connection with the fact of possession of the land being taken by the vendee, and continued, it is a strong proof of it.</p> <p>When land has been sold upon execution by a sheriff who returned the sale and acknowledged the deed, but retained it as security for the payment of a part of the purchase money, and the vendee took possession of the land which was after-wards purchased as his property at sheriff’s sale, and the second vendee brought an ejectment against one who did not show tide, and on the trial of the ejectment the plaintiff paid the balance due the sheriff, (who was then out of office) and obtained the deed, which he gave in evidence, it was held that the plaintiff was entitled to recover.</p> <p>By the payment of a large portion of the purchase money, and the delivery of possession, the sheriff’s vendee1-requires an interest in the land, which, although it may not amount to a legal title, is subject to execution and sale, under which possession may be recovered from one who shews no title.</p> <p>In ejectment by a sheriff’s vendee, a judgment in favor of the vendee, against the defendant, as whose property the land was sold, is pertinent testimony, because it shows the manner in which the sheriff was paid for the land.</p>

<p>.IN ERROR.</p> <p>Error to the Court of Common pleas of Bedford county.</p> <p>This was an action of debt on the official bond of George M. Barker, Esquire, the defendant, and his sureties, brought to recover the amount of a judgment in favour of Robert Miller, the plaintiff, against Benjamin Burd; which the plaintiff claimed out of the proceeds of the sale of the real estate of Benjamin Burd, which had been sold by Barker, as sheriff of Bedford county, on an execution.</p> <p>Robert Miller's judgment was entered of record in the Court of Common Pleas of Bedford county, to April term, 1811, on the 6th day of April, 1811, and its lien regularly preserved.</p> <p>The proceeds of sale were also claimed on a judgment of record in the same Court, in favor of Thomas Cromwell, against Benjamin Burd, and the controversy turned on the question whether the lien of this judgment had been continued. The facts being agreed' upon, a special verdict was found, upon which the Court below gave judgment in favor .of the defendants.</p> <p>Thomas' Cromwell’s judgment was entered to May term„ Í806, on the 2d day of June, 1S06; on which a scire facias issued to January term, 1811, on' the 20th day of November, 1810, and on the 11th Pebruary, 1S11, a judgment was rendered thereupon.</p> <p>On the 13th of April, 1812, the defendant’s attorney signed the following agreement on the praecipe, for the execution, which was on the docket. “ I as attorney for the defendant in this case, agree that a fi. fa. issue for the residue of such judgment, without any revival of the same. ” On the 16’th April, 1812, a fi. fa. issued to Jlugust’ term, 1812, and was put into the hands of the sheriff, and was afterwards found in the office of the prothonotary, without indorsement thereon of any proceedings of the sheriff.</p> <p>An amicable scire facias to revive this judgment was entered to January term, 1817, and on the 20th November, 1816', the defendant confessed a judgment of revival. The lien of this judgment so entered was preserved, but the question raised was whether the lien of the original judgment had not been lost, by the neglect to revive the judgment within five years from the 11th February, 1811, when the first judgment of revival was en» te red,</p> <p>Contended that the fi. fa. to August term, 1812, upon which fio levy and no return had been made by the sheriff, did not preserve the lien of the judgment entered on the 2d June, 1806. Betz’ appeal, 1 Penna. Rep. 271. The question thus comes round to the effect of the agreement of the 13th April, 1812, signed by the attorney of the defendant on the record. Does this agreement amount to a revival of the judgment? On its face it imports the reverse.</p> <p>The act of 1798 was not passed for the benefit of the defendant, as was the object of the' statute of Westminster, which requires the scire facias post annum et diem, but it had expressly in view third persons, purchasers and judgment creditors.</p> <p>The judgment by this act remains effectual against the defendant, but as to the third persons, who have subsequently acquired an interest, unless.it is properly revived it ceases to be a lien.</p> <p>By the statute of Westminster after the lapse of a year and a day, execution could not'issue unless the defendant, for whose benefit the act was passed, agreed to dispense with a scire facias: and this he may do. Not so of the scire facias under our acts of assembly, the defendant cannot dispense with that,.so as to preserve the lien of the judgment, as to third persons;</p> <p>Our Courts have in certain-cases construed this act with reference to the British statute, and although these cases are not to be disputed, yet as no analogy existed in feet, between the two statutes, this Court will go ne further, and in the recent decision,-Betzrs appeal, 1 Penna. Rep. 271, it has got back as far as practicable to the-true construction of our act, unembarrassed by this-analogy.</p> <p>In the case at bar, the execution taken out on which nothing was done, had not the effect of preserving the lien of the judg-ment, and surely the agreement to waive the lapse of a year and a day from the time of the judgment, can have no greater effect than the execution itself.</p> <p>Nothing can be more injurious and destructive to the interests-of the community, than the constructive violation of statutes, letting in fancied interpretations, and prostrating the fair meaning of the legislature.</p> <p>The Court have a memorable- example of this-in- the judicial history of the statute of limitations, which was almost abrogated-by this fanciful spirit of construction, but in England* as here, we’ have now got back to the act.</p> <p>- So in regard to- this-act of assembly we have seen the same-spirit of construction at work, until the many mischiefs it was-likely to produce were manifest,, and our Courts have gone back to the act itself. The modern doctrine of this Court on this-subject is sustained by the- recent act of our legislature which is declaratory of what the law was.-</p> <p>The judgment of Cromwell is the oldest judgment, and unless-it lost its lien, at some period between- its original rendition, and-the time of the sale made By sheriff Barker, it is entitled to be first paid out of the proceeds of that sale. It is-contended by the'plaintiff that it lost its lien between the 11th of February,, 1811, (the date of the judgment- on the- first scire facias, suit,) and the 20th Nov. 1816'(the date of the judgment in the second scire facias suit) five years having elapsed from- the first of those dates previous to the issuing of any scire■ facias to continue the-lien, and that in the mean time the lien of his judgment attached to the land in question. He contended’that Cromwell’s judgment never lost its lien on two ground's-. First — That the,/?, fa. issued upon it preserved the lien and superseded the necessity of reviving it by scire facias.</p> <p>Secondly» That the agreement of 13th April, IS 12j.signed by -the defendant’s attorney, and spread upon the record, amounts ■virtually to a revival of the judgment, and is equivalent to the issuing of a .scire facias.</p> <p>As to the first ground, .Judge Yeates, in declaring the opinion of the Court, in the' case ©f Young v. Taylor, 2 Bin. 22S, lays .down the broad principle that the aet of assembly of the 4th April .1798, did not abolish the mode of keeping judgment alive by issuing an .execution within the year and day; superseding the necessity of issuing a scire facias under the statute of Westminster, 2d; and the decision in this case has been recognized by the .Supreme Court in several subsequent cases,, as establishing the general doctrine “ that the issuing of an execution within the year continues the Men without resorting to a scire facias.” It was so held in the case of Pennock v. Hark, 8 Serg. & Rawle, .398, and in the case of the Commonwealth :for the use of Pen-.nock’s executors v. McKisson & others, 13 Serg. & Raiole, 147. The same rules apply to the act of th 4th April, 1798, in regard to keeping judgments alive, which apply to the statute of Westminster, 2d. Young v. Taylor, 2 Bin. 228. Pennock v. Hart, 376. The Commonwealth for the use of Pennock’s executors v. McKisson and others, IS Serg. & Rawle, 147. Judge Duncan, in the'last ca&e, makes use of this language, “whatever would he such a. proceeding within the year and day, as would render it unnecessary to issue the scire facias according to the statute would continue the lien under the act of 1798.” Now under the statute of Westminster 2d, where an execution has been issued within a year and day, an alias execution may be issued at any time thereafter without a scire facias, 2d Tidd. 1003, and that too where the writ has not been executed (which is ,exr act'ly the casein regard to Cromwell’s judgment) provided the first writ bereturned, and continuances entered on the record from the time .of issuing it, 2 Tidd. 1004: and these continuances may be .entered after the issuing of the second writ. 2 Tidd. 1004. \3 Serg. Sf Rawle, \Cl. But in Pennsylvania the continuan-may be filled up without even having .the first writ returned. Lewis v. Smith, 2 Serg. & Rawle, 157. And Judge Duncan, in delivering the opinion of the Court in the case of the Commonwealth for Pennock’s executors v. McKisson, says that “ the entry of continuances with us are so mucha matter of form that they are never entered at all. ”</p> <p>But it may be contended that the f. fa. issued on Cromwell’s judgment was not issued within the year and day, and that it therefore does not come within the rules established by the cases referred to. As regards the inquiry in this case however, it must be considered as resting upon the-same footing as an execution issued-within the year and day. It was issued with the consent of the defendant, (the only person who had a right to object to it,) and at a time too when the Ijen of the judgment was unquestionably good.. The scire, facias is for the benefit of the defend? ant, and the reason why the plaintiff is required to issue it after the lapse of a year and a day, is because he is presumed from the length of time, to have released the execution, and therefore the defendant shall not be disturbed without being called on, and hav? ing an opportunity of pleading the release, or showing cause why the execution should not go. 13 Serg. & Rawle, 147. .But when the defendant agrees that the execution shall issue, certainly it countervails the presumption of a release, and supersedes the necessity of a scire facias. The scire facias calls upon the defendant to shew cause why the plaintiff shall not have his execu? tion, but he by his own act argues that he shall have it, so that the issuing of the scire facias would he oppression, and such a nugatory act as the law requires no man to perform. The necessary result of this reasoning is, that the execution issued regularly, and with the same effect as if it had been issued within the year and day. But even if it had issued without the consent of the defendant after the year and day, it would not be competent to third persons to object to it. It would have been voidable by the defendant in that case on error, or by motion to the Court, but not void. Young v. Taylor, 2 Bin. 230-’l. Miller v. Milford, 2 Serg. & Rawle, 39. It was good between the parties and as to all others, until reversed.</p> <p>The act of the 26th March, 1827, has no bearing upon this ®ase.</p> <p>On the second ground he argued that the agreement of the defendant’s attorney, dated the 13th April, 1812, amounts virtually to a revival of the judgment, and is equivalent to the issuing of £ scire facias.</p> <p>•Agreements are to be construed so. as to effedtuate the inten7 tions of the parties without regard to the ordinary acceptation of •particular words used, where such words would render a contract ineffective and frivolous. 1 Poioell on contracts, 230. 1 Rawle, 162, What was the intent of the agreement of the 13th April, 1812? Was it not to give the plaintiff, Cromwell, the full benefit of his judgment by placing it in such a situation as that it would be to all intents and purposes as available a security as any judgment could be to enable him to collect his debt? Was not the very object of the agreement to place the judgment in the very self-same situation as if it had been revived by scire facias? If this was the object, (and that if is impossible for the mind to doubt,) to give effect to that object the agreement must be construed to be an agreement for the revival of the judgment. What isf the revival of a judgment? If-is an acknowledgment of record that the judgment is unsatisfied,, and that the party has not released his execution. Put the agreement of the 13th April, 1812, as placed upon the docket is an acknowledgment of record that the judgment was unsatisfied at the date of that agreement, and therefore amounts to a revival of the judgment. In a scire fa-cias post annum et diem, if the defendant cannot shew payment of the debt, or something equivalent to payment, the judgment •will be revived as a matter of course, which revival is nothing more in effect than proof of the judgment being unpaid. The scire facias call's upon the party to shew cause why an execution shall not issue, and on failing to shew such cause, the-judgment is that the plaintiff shall have his execution. An amicable revi val of a judgment is an agreement of record that the plaintiff shall have his execution — the agreement of the 13th April, 1812, is .an agreement of record that the plaintiff should have his execution, and the same legal consequences must result from it which ■would have followed if it had been an amicable agreement for a revival of the judgment in the common form. If therefore we look at the intent of the parties, and the objects to be obtained by the agreement, or to the substance of- the agreement itself, it amounts to a virtual revival of the judgment.</p> <p>But whether it be considered as a 'revival in technical language or not, it was equivalent to the issuing of a scire facias, and the limitation of five years would commence running from the date of this agreement if our first position be not sustained. Surely it would be as efficacious to preserve the lien, as an agreement made at the date of the judgment for a stay of execution until that time, would have been. And where there is sn agreement ■for a stay of execution, and although that agreement is not placed .upon ,the. record, the year and day does not commence running until the stay of execution, according to the agreement, has expired, Dunlop v. Spur, .3 Bin. 172. Miller's administrators v. Milford, 2 Serg. & Rawle, 36. In such a case no scire facias is necessary until a year and a day after the stay of- execution has expir.ed, because no presumption of payme.nl has arisen from the lapse of time. The scire facias therefore is predicate^ upon tfie presumption of.payment having arisen, but any fact or circumstance which goes to shew that such presumption has not arisen, will supersede the necessity of-a scire facias. 3 Bin. 172. 2 Serg. & Rawle, 36, 8 Serg. & Rawle, 377. So where there is a cesset executio, the limitation of five years does not commence running until the stay has expired, and this too is on the principle that no presumption of payment can arise until after the expiration of the stay.</p> <p>From these authorities it seems conclusive that the year and day, and the limitation of five years never commenced running until after the presumption of payment can arise; and whenever presumption is rebutted the limitation can never be carried further back than the day on which such presumption is rebutted. . Here the presumption is completely rebutted on the 13th April, 1813, at a time too when the lien of the judgment was clearly good , and five years did not elapse between that time and the 30th Nov. 1816, on which day the judgment was revived in the second' scire facias suit, and there is no pretence that it lost its lien after that date.</p> <p>The act of 1798 with respect to the lien of judgments has received a liberal construction.</p> <p>Whether such a construction ought to have been given is not now a question — it has been given in a variety of cases, and has furnished a rule to parties, counsel, and Courts.</p> <p>As to new cases, the act of 1837 furnishes the rule for their government.</p> <p>We ask the Court to apply to an old case the rule furnished at the time by the decisions of our highest judicial tribunal.</p> <p>The object and intent of the act was make known by some act of notoriety, on the record, that the money was due.</p> <p>When the law would raise no presumption in favor of debtors, there is no reason to suppose the existence of the judgment as an incumbrance, would be a surprise on a purchaser. JPennocle r. Hart, 8 Serg. & Rawle, 378.</p> <p>An execution levied dispensed with scire facias.</p> <p>A scire facias issued within five years, and returned tarde cé-nit, and after the expiration of five years an alias issued, on which judgment was reversed, held good, and lien maintained. 8 Serg. & Ratole, 378.</p> <p>A stay of execution placed on record has been adjudged to dispense with a scire facias. 8 Serg. & Rawle, 377.</p> <p>The agreement of the counsel, is to be taken as a revival dispensing with the formal revival by scire facias.</p> <p>Form is now as much disregarded in our judicial proceedings, as in deeds and other writings, when the intention of the parties is to be effectuated.</p> <p>But if not considered as a revival, it was an agreement of the parties on the record, by which the existence of the debt was made known with notoriety.</p> <p>That notoriety was greater than what would have been afforded by an execution issued and levied — by a stay of execution, or by a scire facias unexecuted.</p> <p>As respected notoriety it had all the effect of a revival, and for the preservation of the lion it ought, to have the same effect.</p> <p>In a recent case decided at the last term at Pittsburg, an agreement to revive the judgment entered _on the original judgment, but not brought forward and docketed afresh, was held to be sufficient to preserve the lien of the judgment: which he contended was analogous to the case at bar.</p> <p>This case is not within any of the cases decided, and the act should not be destroyed by the reasoning of judges, which by ingenuity may be applied to new cases.</p> <p>It was the intention of the legislature that the judgment should be brought forward, to avoid the evil of being obliged to look back through an almost indefinite period for liens; to guard against which, in the act of 1827, a judgment docket is required to be kept.</p> <p>The agreement of the defendant’s attorney has no other effect than to dispense with a revival of the judgment under the statute of Westminster, and to authorize an execution, although the year and day had elapsed.</p> <p>And in fact without such agreement the execution would have been good, if the defendant did not choose to object to it. This is personal to the defendant. But the agreement does not dispense with the necessity .of conformity to the act of 1798, which is for the benefit of strangers to the judgment.</p>

IN ERROR. On a certiorari to the Court of Quarter Sessions of Adams County, the case was this: At November sessions, 1828, Eliza* beth Keef haver became bound with Peter Keef haver, as her surety, in the penalty of 500 dollars, upon condition that she should appear at the next sessions, to answer, &c., and “not depart the' Court without leave,” &c. She appeared at the next sessions, January, 1829, and upon trial was acquitted, by the jury, who under the act of 8th December,…

<p>The wordsft without defalcation,” in a single bill or note under seal, do not'preclude the obligor from making a defence to a suit brought by the assignee for valuable ■ consideration.</p> <p>Every bond or note under seal is liable to investigation as to its truth and fairness in the hands of the assignee or indorsee — the single exception is where the as-signee calls on the obligor who tells him there is no defence, or where the 'obligor induces the assignee to take it.</p>

<p>*C built for B a house, in the summer of 1813, and afterwards, on the 9th October^ 1813, they entered into articles of agreement, by which B covenanted to convey •toC, the,land on which the house had been built, for £3,000: £2,000 to be paid about the.middle of May then next, and£l<>0 on the 20th May in every year, until the whole purchase money should be pa’d. B died in the spring of 1814, not having executed a deed, but by his will, he directed the contract to be carried into execution by his executors. G and W, his widow, the executors of his will, on the 7th of June, 1814, executed a deed to C, and signed a receipt thereon for the consideration of £3000, and took from.C and M a bond for £1812, payable on the 20th June, 1814, which was subsequently paid, and ten bond., for £100 each, payable according to the contract. It did not appear how the tlifr ference between £1812, and £2000, the hand money, had been paid. When the first bond became due, in 1815, G, the executor, presented it for payment, C then claimed to setoff his account for building the house, and G told him to prove it, and postpone the set-off till the next bond should become due. In 1817, G sent two bonds due in 1816 and 1817, by E to C ; C then claimed his ■set-off, E took the account, and put a receipt on the bond of 1817, for the money •paid, and this account “ which if accepted by G and W will be in full.” Suit was brought by the executors on the bond of 1817, rejecting the set-off, to August term, 1818, in this suit O claimed his set-off. This suit in 1823 was reached .for -trial, when the attorney of the defendants not being ready to meet the demand, confessed judgment; at the time, or immediately after judgment •was confessed, P, the attorney of the executors said there was another bond, which would fall due in 1824, and if C had a just account he would have an opportunity of making his defence on the other bond. Phadnotthe bond of 1824 then in his possession, hut he as attorney of the exeoutors brought suit upon it to August term, 1824. Held: in that suit, that the account of C which was claimed as a set-off was barred by the statute of limitations.</p> <p>'The desire of one of tile plaintiffs, in 1815, that the set-off should he postponed till the next bond became due in 1S16, would at the utmost, suspend the statute, if at all, only for a year.</p> <p>5E, the plaintiff’s agent, having no authority to allow the set-off made no promise which they .were .bound to disavow, and his act was therefore without consequences.</p> <p>A legal presumption arose in the absence-of proof of how the difference between the amount of the judgment bond for £1,812, and £2,000, the amount of the hand money had been paid, that.the set-off of C had been settled in the.payme.nt of that sum.</p>

IN ERROR. Error to. the Common Pleas of Franklin county. This was an action of replevin brought by Fry, the plaintiff below and the defendant in error, against Herron, the plaintiff in error, for a stack of wheat, which Fry claimed under parol sale from one HisJeey. Herron claimed the wheat upon a sale made by a constable to him, on an execution against HisJeey.

This was an appeal from a decree of the Court of Common Fleas of the county of Adams, distributing the money, raised by the sale of the real estate of one Peter Keef haver.

<p>IN ERROR.</p> <p>Writ of error to the Court of Common Fleas of Franklin county.</p> <p>This was an action brought in the Court below by the administrator of Elizabeth McLanahan, against the surviving executors of John McLanahan, with notice' to terre tenants, to recover a legacy under the will of John McLanahan, her father. By this will it was devised among other things, as follows, to wit:</p> <p>“ To my sons John, Thomas and Michael, I give and bequeath all my real and personal estate; with all the appurtenances thereto belonging, excepting such part as hereafter reserved for the remaining legatees, subjecting my land nevertheless to be liable to the several payments hereafter mentioned.” He afterwards devises to his daughters Jane, Rebecca -and Elizabeth, £250 each, together with some articles of furniture.- -</p> <p>In 1809 a writ of partition was sued out, by Thomas, one of the devisees, and after the return thereof, in the year 1811, the parties thereto, Thomas, John, and Michael, submitted the matters therein to certain referees mutually chosen, who divided the lands so devised, amongst the said Thomas, John, and Michael, which partition was confirmed by .the Court and acquiesced in by the parties.</p> <p>In April, 18-24, two hundred acres of the share of Thomas were levied upon by the sheriff of Franklin county* at the suit of James Riddle, Esq., for the use of A. and J. Colhoun, v. John Flanagan, administrador of Thomas McLanahan, and sold.</p> <p>(Thé foregoing statement of facts embraces all that is necessary to understand the points raised for the decision of the Court in this case; a fuller account however, together with a copy of the whole will and all the pleadings,.will befound ira Mc'LanahanY. McLanahan, 1 Penn. Rep. 98, where different points were presented.)</p> <p>The question here was whether the whole of the legacies charged by the will of John McLanahan upon the lands devised to Thomas, John, and Michael, should be taken out of the proceeds of the two hundred acres of Thomas’ share, which had been assigned to him in the partition, and sold by the Sheriff at the suit of Riddle, for the use of Colhoun: or whether Thomas’ part was liable for more than one third of the legacies, which were a-lien on all the lands devised.</p> <p>The Court below charged the jury that as soon as the sheriff’s deed was acknowledged, the land sold was discharged from the incumbrance of the legacies, and the sheriff became liable to pay them in the proportion, which the land sold bears to the whole amount of'the land devised by John McLanahan to his three sons charged with them.</p> <p>Judicial sales of the land divest all liens whether, general or specific, McLanahan v. McLanahan, 1 Penn. Rep. 96.</p> <p>Each part is liable for the whole without apportionment, and where a sale of a part is made, it operates to discharge the whole land from liens.</p> <p>The testator devised his lands to his three sons, charged with pecuniary legacies; they divided them into, three parts, which were a common fund to pay the legacies charged on them — the charge by law was equal and one part ought not to bear more than its proportion. It is a doctrine yvell established that where land is charged with a burden, the charge ought to be equal, and one part should not bear more than its proportion, and equity will preserve this'equality by compelling the owner of each part to a iust contribution. Harbert’s case, 3 Co. 14. Harris v. In-gledew, fo P. JVms. 98. Stevens v. Cooper, 1 John. Ch. Rep. 430. Cheesebrough v. Millard, ib. 409. No decision or opinion can be produced to1 support the position of the plaintifi in error that all the legacies should be paid out of the fund raised by the sheriff from the sale of Thomas’ land, and that the land of the other devisees is thereby discharged, • Equity so far from compelling a creditor to resort to one part of an estate charged with a common burden, will restrain him from levyingthe whole -of his claim on one part, so far as it is ip .the power of a Court of equity to interfere. The grantee, of rent has been restrained from levying the whole rent upon one of the purchasers. 1 Eq. ■Ca. ab. 33,. I MaddocJc’s chancery, 193. Creditors have been .compelled to wait until the proportions of devisees to pay a charge on their estates was ascertained. Harris v, Ingledew, S P. Wins. 98. The plaintiffs’ omission to receive their legacy out of moneys raised by sales could not operate further to their prejudice than if they had released the land of Thomas. A release of part of the estate charged would have operated to the discharge of a proportional part of the debt.. Stevens v. Cooper, 1 John. Ch. Rep. 430. 1 Caine’s cases, 78, The judicial sales by the sheriff and administrators was not per se a payment — they ■were only a means of payment which plaintiffs might waive. Bank of Penn. v. Winger, 1 Rawle, 303. It was not for the other debtors to object to such waiver at least further than-to the discharge of one third, being the equitable proportion of that part of the common fund. As a fund or means of payment, plaintiffs are not bound-.to pursue or retain except in favour of a surety. The defendants were not sureties, but joint debtors in representing the fund devised and charged. If the plaintiffs had claimed and recovered out of ithe assets ' ef the estate of Thomas McLanahan, deceased, all their elaim, the administrators might have sustain-' cd an action against the defendants below for contribution. The defendants are not injured. The Court cannot intend that they have paid to the other legatees more than their proportions; if they had, our broad system of equitable defence might admit of an inquiry into it, and protect the defendants bv a proper .adjustment. ■</p>

<p>IN ERROR,</p> <p>Error to the Common pleas of Adams county.</p> <p>This was a scire facias post annum et diem, issued to revive a judgment of record in the said Court in. favor of Charles De-lap, ■ against David Stewart, Thomas McKnight and Andrew ■Wray, of which on the 27th May, 1825, the plaintiff received $77 13, from David Stewart, and the balance from Isaac Wire-man and Joseph Arendt, trustees .under the will of Charles Slew-art, to whom he on that day assigned the balance of the said judgment. Defence was taken to the scire facias by Mr. McKnight on the, ground, that he- and Wray were the sureties of David Stewart only, and as the payment of the judgment was made by the trustees out of the trust fund, in which David Stewart had the beneficial interest, it amounted to a payment of the judgment as against the sureties.</p> <p>Proof was made that David Stewart was the principal, and Mr. McKnight and Wray were his 'sureties in the judgment, and that the amount paid by the trustees was paid out of the trust fund. These trustees were appointed 'by the will of Charles Stewart, which so far as material in this suit was as follows;</p> <p>“I devise to J. Arendt, sen’r. and Isaac Wireman, and their heirs, my two plantations, situate in Menallen township, in the county of Adams, to wit: the old farm on 'which I formerly lived, and the farm purchased as the property late of John Mac-hley, during the life-time of my brother David. Stewart, to be rented by them, and the rents to be applied by the same trustees for the support and maintenance of the said. David Stewart, and such of his family as shall be with him, and to be paid at the dis*-cretion of the said trustees, in such sums and at such times as they may think proper, he to have no control over it.'’</p> <p>“Also, it is my will, and I do order and direct my executor’s, hereinafter named, to pay over to the said John Jlrendt, and' Isaac Wireman, one thousand dollars, in good obligations now due, or the said one thousand dollars in money as soon as the-same can be collected, out of the moneys due to me after my de cease, and to put it to interest, and the interest annually to be applied to the support and maintenance of my said brother David Stewart, and s.uch of his family as continue to live with him; and' should it happen from sickness or other circumstances that part of the principal in the opinion of the said trustees, be necessary for the comfortable support and maintenance of the said D. Steiu-art, they hereby are authorized to appropriate so much thereof as-they in their discretion may judge necessary for the purposes aforesaid, and if at the death of the said David, the whole or any part of the said one thousand dollars, should be unexpended, then it is my will that the same be equally divided among all his children, sharo and share alike, and.their heirs.”</p> <p>Wireman, one of the trustees being objected to as a witness and-the objection over-ruled by the Court, testified that all the parties, to the judgment requested the trustees to apply the trust fund in the way they had done; that McKnight had said it would be giving him or them time to pay it. That he was not present when it was paid, but it was. paid with a view of purchasing the judgment.</p> <p>The plaintiffs requested the Court to charge the jury,</p> <p>1. That if the money were advanoed by Jlrendi to Delap, at the request of all the defendants, as a purchase of the judgment, and merely to give the defendant longer time to pa.y it in, and was not intended nor understood at the time by any of the parties to be an extinguishment or satisfaction of the judgment, but was agreed, understood and intended by all the parties still to remain good against all the defendants, that then the plaintiffs are entitled to recover.</p> <p>3. That nothing contained in the assignment of said judgment, opcrates.as a legal extinguishment of said judgment, without and contrary to the intention and agreement of the parties.</p> <p>The Court charged the Jury in the negative of these propositions, upon the evidence as given in the cause.</p> <p>The verdict being for the defendant, the plaintiffs upon this, writ of error, which they had sued out to the judgment entered upon it, assigned for error, the answers of the Court to the points -put by them, and to which they .had excepted.</p> <p>The cause was argued by</p> <p>and by</p> <p>who referred to Kessler v. McConachy, 1 Pawle,4.39., .and Keller v. Leib, 1 Penn. Pep. 220.</p>

Certiohari to the Court of Quarter Sessions of the county of Adams. This writ was taken to the decree of that Court, confirming the report of reviewers, appointed to review a part of the state road from Gettysburg in the county of didams, to the top of Conococheague hill in Perry county.

It was an action on the case brought by George Arnold the appellee, against Jacob Zell the appellant in. the Court of Common Pleas of that county, and removed into the Circuit Court.

' This was an appeal by Christian Erb, from the decree of the Court of Common Pleas of Cumberland county, appropriating the proceeds of the real estate of Barnabas McCormick, on a sale made bj’ the sheriff! The following were the facts agreed upon: “ On the 5th of July, 1S22, a judgment on the report of arbitrators was entered at the suit of John Martin against Barnabas McCormick, for @401 78, from which McCormick appealed.

<p>IN ERROR,</p> <p>Error to the Court of Common Pleas of Cumberland count)*-.</p> <p>This action originated before a justice of the peace, from whose judgment- there was an appeal to the Common Pleas, when the following statement was filed:</p> <p>“ This action is founded on a promissory note, or assumption in writing, dated 8th April, 1818, and signed R. R. Church, by which the said defendant promised to pay to' the sai.d Philip Fe-, trow $24 75, in three months after the date of the said writing.”</p> <p>Then followed the usual certificate,</p> <p>To support his action, the plaintiff offered in evidence the following paper, signed by R. R. Church, the defendant:</p> <p>“This is to certify, I agree that I will become accountable to Philip Feterow, for twenty four dollars and seventy-five cents, in three months after this date, to be paid in furniture if agreed to by the parties, this 6th day of April, 1818.”</p> <p>To the admission of which evidence the defendant objected:</p> <p>1. This is not the same instrument declared on, it materially varies from the statement.</p> <p>2. It is not a case embraced in the act of 1806.</p> <p>These objections were over-ruled, and the defendant excepted.</p> <p>To avoid the effects of the plea of the statute of limitations the plaintiff gave, in substance, the following evidence:</p> <p>Feterow went to Church’s house with a cart and asked him about the furniture. Church said he should have come when the furniture was ready for him; but, said he, go to my wife .and ' see if there is any furniture there for you. Feterow replied, no, I have nothing to do with your wife ; Church then said, come we will go to the house and see if there is any furniture there for you. Feterow asked the witness to go along. Church asked what he wanted’men along with him for? Feterow answered, to judge of the furniture. Church then said, that if he was not a sufficient judge of furniture himself, he might do without, and refused to go. They then parted.</p> <p>The defendant’s counsel requested the Court to eharge the jury></p> <p>1. The paper given in evidence does not support the statement filed.</p> <p>2. No recovery can be had in a suit on, such a note, without a declaration; it is not the kind of a claim on which a statement under the act of 1806 can be filed.</p> <p>3. The act of limitations is a bar to the plaintiff’s recovery, unless he has proved, that within six years before this suit brought, the defendant promised to pay thé debt.</p> <p>To which the Court answered:</p> <p>To the first point. The mere production of the paper would not sustain the statements; but if there was an offer by the plaintiff, to take the furniture, and a refusal by the defendant to give it, before the suit brought, the engagement became absolute, and gave the plaintiff a right to recover the money.</p> <p>We think it is such a case as is embraced in the act of 1806, which allows a statement of the plaintiff’s cause of action, in place of a declaration, and no precise form is required. The facts are set forth in this statement agreeably to the requisitions of the statute.</p> <p>To the third point. This is the law: after six years the law bars a recovery, unless the defendant actually promises to pay, or acknowledges the existence of the debt in such form, as to raise a promise in law to pay it. Acknowledging the existence of the contract, the correctness of the note, or that the debt is due, raises an implied promise to pay, which is sufficient in law to take the ease out of the statute of limitations, and enables a plaintiff in such case, to recover. When the defendant acknowledges the existence of the debt or claim and that it is unsatisfied, within the six years, it is the duty of the jury to infer a promise to pay. If there is not such proof, the plaintiff cannot recover.</p> <p>The following errors were assigned:</p> <p>1. The court erred in admitting the note in evidence; and in their answers to the defendant’s first and second point.</p> <p>2. The court erred in their answer to defendant’s third point.</p>

EmtoR to the Court of Common Picas oí Franklin county._ This was an action on the case, brought by Elizabeth Dunlopr for the use of R. Stewart, to recover a legacy devised to said Elizabeth, hy the will of James Johnson.

• Appeal 'by the defendants, from the judgments of the Circuit Court of Dauphin county. Held: that a bare acceptance of a legacy, would bar her right, unless it has been done with a full knowledge of all the circumstances, and the effect Which such acceptance would produce. If a person were to purchase his own estate ignorantly, chancery would compel the purchase-money to be refunded.

<p>Where lands are taken at the appraisement in the Orphans’ Court, and a recogni* zance entered into to secure to the heirs their proportions of the valuation mo; ney, and the heir who takes, sells the land taken; arid the recognizees suffer twenty years to elapse without any proceeding on their part on the recognizance, .or claim as against such purchase, the lands so taken and sold, are by such lapse of time discharged from such recognizance, although .payment on such recognizance may have been made within that period; by the Heir who took tlrfe . land at the appraisement.</p> <p>Where a covenant was made in articles of agreement to convey a tract of land, so taken and incumbered, clear of incumbrances, and the vendee, with a full knowledge of such incumbrance, enters into possession, and pays his purchase money, and takes a deed for the land; and subsequently within twenty years aftpr such recognizance was entered; brings an action of covenant on the article, assigning as a breach, that the vendor did not make him a deed clear of incumbrances, and at the time of the trial, twenty years had elapsed from the entering of the recognizance, whereby his land was discharged: in such case the vendor would be entitled to recover nominal damages only; and if a deed had not been g’iven, a proper verdict would be to find for the plaintiff, a sum sufficient to compel the vendee to make a deed, to be released on a deed being made.</p> <p>Where the plaintiff has only entitled himself to claim nominal damages, and the •jury find a verdict for the defendant, the court will not set it aside, unless the question of right or title to property of value, should be involved in the suit, and affected by the verdict.</p>

IN ERROR. Error to the District .Court of the City and County of Lan-> caster. Two writs of scire facias had issued in that court by the defendant in error, against the present plaintiffs in error, to make them parties to two suits, entered to June Term, 1823, No. 361 & 362. • On the 16th June, 1824, judgment was rendered in each case, that the defendants be made parties to the-original suit.

<p>A toot land at the appraisement in the Orphans’ Court, and entered info a recog'nh zance with B. as his security, to llis co-heirs, of two of whom, C. and J. B. was guardian, A. sold the.land so taken to E. another heir, and an agreement was executed by which E. was to pay the valuation money including A’s. share to A. and the heirs, and he executed a mortgage for this purpose. This agreement was signed by -C. who was still a minor, and by B. without stating the characterin' ‘ which he signed. After C. came of age, she brought suit on the recognizance for her shave: held that she was not barred by this agreement, and that it was not valid.</p> <p>Infants are only capable of making contracts for necessaries, or of doing those things voluntarily, which by law they might or could be compelled to perform. _ •</p> <p>_ When land is taken at the appraisement in the Orphans’ Court, and the heir talcing it,- enters into a recognisance to the ether heiiS, and takes possession, and holds the s'ame, and receives the rents and profits; and afterwards, the land is sold on judgments obtained for debts due by the decedent; although the heir who took is thereby discharged from the appraised value of the land, it is a defence in equity, and he is bound to pay to each heir his.p’roportion of such rents and profits, and he may be compelled to this by suit on the recognizance.</p> <p>Where a case stated, omitted to find the amount of such rents and profits, and tlie' court below had rendered judgment for the defendant, this court reversed the judgment and awarded a venire facias.</p> <p>Intestate died seized of several tracts of land, which were taken at the valuation by different heirs, who respectively entered into recognizances, one of them being the administrator, and having a small balance of the personal estate in his hands. Judgments fo-a, large amount, were re'covered against the intestate, on which the land was all sold, and after paying these debts, a small balance was paid by the sheriff, fo the administrator. IMS in a suit brought against the heir, who was also the administrator, on his recognizance, that as the balance of the perso nal estate added to the sum he was bound to pay on the recognizance, fell short of these judgments, he was not so bound to pay it towards those judgments, as that his neglect to do so, Would charge him with any loss which occurred on the sher-' iff’s sale. In such suit on the recognizance, the plaintiff is not entitled to recover any proportion of the proceeds of the sheriff’s sale paid to the defendant as administrator alter satisfying the judgments'.- The remedy for that is in the Orphans’ Court, which will compel the administrator to charge himself with it.</p>

<p>IN ER3Í.OR.</p> <p>ERROR to the Court of Common Pleas of Berks county, to re-, move the judgment of that court upon the following case, stated in the nature of a special verdict.</p> <p>Michael Seiger- died, leaving a widow and eight children, and seized of a plantation, containing one hundred and twenty acres. The said tract of land, was valued and appraised at the sum of' iS1630, under a proceeding in the Orphans’ Court for that purpose, and on the 7th of April, 1810, it was adjudged to Jacob Seiger the eldest son of the intestate, at the valuation.</p> <p>Jacob Seiger entered into the possession of said tract of land, and while in possession, to August term, 1820, an action was instituted, against him at the suit of Daniel Hill, in the Court of Common Pleas of Berks county, in which judgment was rendered on the 1st day of July, 1820. Security was entered to obtain a stay of execution on this judgment, by Christian Hepner, for whose use this, suit is brought. On this judgment the property taken by Seiger, was levied on and sold by the sheriff, to George Beigle, the defendant below, on the 19th December, 1821, for $668 upon the following condition, which were set up by the sheriff, at the sale, and after the sale.was made, signed and acknowledged by the purchaser.</p> <p>“Conditions of Sheriff’s Sale.’5,</p> <p>“The subscriber, sheriff of the county of Berks, offers to sell by public sale, and by virtue of a writ of venditioni exponas, a certain tract of land, containing 122 acres, more or less. The estate, of Jacob Seiger, subject to the payment of a dower of five hunr. dred and forty three pounds six shillings and eight pence, the interest thereof to be paid yearly, unto the widow of Michael Sei-ger, deceased, and after her death, the principal to be paid to the heirs of the said deceased.</p> <p>HENRY BETZ, Sheriff.”</p> <p>' “I the subscriber do hereby acknowledge, that I have bidden for the estate above mentioned the sum of six hundred dollars and that I have become the purchaser on the terms above stated.</p> <p>“■Witness my hand and seal, the day. and year above mentioned.</p> <p>GEORGE REIGLE, [m s.]</p> <p>Witness, ADOLPH HATZFÍELD.”</p> <p>The sheriff’s deed was acknowledged to Reigle, who took possession under it, which was continued ever since.</p> <p>The • widow of Michael Seiger, the intestate, died on the 1 st day of January, 1826. The purchase money arising on the sale to Reigle, was applied towards the payment of the recognizance in the Orphans’ Court, to the heirs of Michael Seiger-, and a scire facias was issued against Christian Hepner, the security to obtain the stay of execution, upon which he was compelled to pay the judgment of Hill, against Seiger: in consideration of which Jacob Seiger-, on the 1st day of June, 1822, by an instrument-under seal assigned and transferred to the said Hepner, one-eighth part of the third of the purchase money,.“due and payable at the death of the widow of the-said Michael Seiger, out of the plantation of the said deceased, now^in the possession of George' Reigle, being his share out of the said third of the said plantation. ”</p> <p>The following judgments remained open and .unsatisfied against the said Jacob Seiger, at the time of the sale and continue still unpaid: Jldam, Kaiser sc. Jacob Seiger, of November term, 1819, judgment 1st November, 1819, for £123. Belson v. the same, of' November term, 1820, judgment 9th December, 1820, for $40,07., Wolffs executors v. the ssame, of April term, 1820, judgment 10th April, 1820, for $165,50.</p> <p>The Court of Common Pleas gave judgment in favor -of the plaintiff below and defendant in error.</p> <p>Under the act of assembly by virtue of which this estate was ad-‘ judged to Jacob Seiger, he took his share in the land, and the principal sum, the interest of which he was bound by the decree of the. Orphans’ Court, to pay to the widow annually, at her deathy “shall be paid” by him, and “shall be distributed and divided to and amongst the said children of her husband. ” Purdon Digest■; 407. Act of the 19th March, 1794 — section 32. He is to pay to whom ? not to himself, but to the said children of the intestate. It is a well settled principle, that when the same hand is to receive which is fo pay, the debt, is extinguished, so where a legacy is charged on land and the land comes to the legatee, the charge is merged, Wankford v. Wankford, Salk. 350. Thomas v. Thompson, 2 John H. 471. Griffith v. Chew's ■ executors, 8 Serg. & Rawls, 17. ’ Duke Chandos, v. Talbot, 2 P. Will. (¡40.</p> <p>Then although he was compelled to pay interest, during the life of the widow, on the one-third of the valuation of the entire tract, so' far as respects 'his own proportion of the principal of that third the debt was extinguished and paid.</p> <p>The purchaser at sheriff’s sale, took the same interest which was vested in the defendant. The language of the act of 1700, Pur. Dig., 288, sect. 1st, is, “After which sale and appraisement, made as aforesaid, such land and houses shall be and remain a free and clear estate to the purchaser or creditor to whom they are so made over or sold, his heirs and assigns forever, as fully and amply as ever they were to the debtors.” The estate vested by the sheriff’s sale, is as full and ample, as that of which the defendant was seized, and it was not competent to the sheriff to convey a less estate than the defendant had. The interest of the defendant in the }and included his share of the' valuation, the interest of which he was to pay the widow during her life, and passed to the purchaser. If, however, any such interest existed after the sale, it would go to the judgment creditors of Seiger, and he could not transfer it.</p> <p>V ieWed as an incumbrance, the sheriff’s sale extinguished it, Welsh v. Peekey, 1 Penn. Rep. 57.</p> <p>It was a matter of no moment what weie the rights of the parties anterior to tile sheriff’s sale; in that sale, circumstances arose which estop the defendant to deny the right of the plaintiff to recover. The conditions of this sale, bind him to the payment which is sought to be enforced; the sheriff’s deed conformas to these conditions, and the plaintiff in error, went into possession under it, and now seeks to hold it in contravention of these conditions at a less sum than he agreed to give.</p> <p>He bound himself by those conditions to pay 15543 68, at the death of the widow “to the heirs of the said deceased.” It is the entire sum which he engaged to ¡ray, and to all the heirs of said deceased, of whom Jacob Seiger was one. He shall not now be permitted to say it was less than £543 by the share of Jacob, and pocket this share against his positive agreement; but for which the land would have sold for so much more. If this' transaction were a->mistake on the part of the sheriff) it would have been a good ground upon which to ask the court to set the sale aside; but as this course was not pursued, this mistake would not confer upon the purchaser a right to hold the land against his own agreement for less than he agreed to give.</p> <p>The interest which the plaintiff claimed to recover, was a monied interest, which by his own deed the purchaser undertook to pay, and by this deed, he is estopped to say it is an interest in land which by that deed was transferred to him. There are many cases of estoppel not so strong as th'is.</p> <p>Where it is recited in the condition of a bond, that the obligor had received divers sums of money for the obligee, which he had not brought to account, but acknowledged that a balance was due to the obligee; the obligee was estopped to say he had not received any money for the use of .the obligor. Shelley v. Wright, Wills Rep". 9.</p> <p>If a defendant suffer judgment to. go against him by default in an action for damages, he is estopped to deny that any damages had been sustained. So where an administrator confesses judgment, he cannot deny assets to satisfy that judgment.</p> <p>If aman take a lease of hisown land, he would beestoppedto deny the title of the landlord. Whealer v." Board, 12 John 11., 363. Coke. Lit. 352. Ewin v. Desilver, 8 Serg. & Rawle, 92. 4 Refers R. 85. Feather’s jappeal, \ Penn. Rep. 322.</p> <p>He denied that the purchaser would take the entire interes t of the defendant, although by the term's of the sheriff’s sale, a less interest was sold and conveyed to him, as if the sheriff should sell and convey a life estate, when the defendant was invested with a fee-simple, the purchaser would not take more than he bought.</p> <p>Thejudgmentcreditprs had never claimed; their lien had run out and the* court would not create a party to interpose between the plaintiff and defendant, who presents the case of a surety, a case of peculiar equity.</p>

<p>IN ERROR.</p> <p>Error to the District Court of Yorh county.</p> <p>The plaintiff in error, who was the plaintiff below, brought as-sumpsit for money had and received to her use, for the price of three-fourths of a tract of land, which the defendants under a deed of trustfor the paymentof his debts, from Jacob Eichelberger, had sold and conveyed. It was admitted, that the sum for which it had sold, was insufficient for the payment of the preferred debts ■ provided for in the deed o’f trust.</p> <p>The plaintiff offered to prove, that Jacob Eichelberger, was her guardian, and had bought this land in trust, with hef funds for her, by a deed, in which, however, the trust did not appear; that he after-wards declared that it was her property, and gave directions to have, a deed prepared to conv'ey it to her, but before it could be prepared, Eichelberger assigned the same to the defendants in trust. This evidence was objected to, and over-ruled by the court, who sealed a hill of exceptions, upon which error was now assigned here.</p> <p>The trustees are in the place of the debtor, and they are not purchasers for a valuable consideration, entitled to he protected as such. Haggerty v. Palmer, 6 John Ch. R., 437. The equity of the plaintiff is a superior equity, of which the defendants had notice before the distribution of the fund; and the plaintiff had an equitable lien on such fund. Dexter v. Stewart, 7 John Ch. R-, 62. Murry v. Lylburn, 2 John Ch. R., 441.</p> <p>However the plaintiff might have had a claim to the land, which was held upon a secret trust by Eicñelberger, she can haveno claim against the defendants for the proceeds of the sale, which they are bound to distribute according to the provisions of the dged of trust. They are purchasers for a valuable consideration, without notice of the secret trust in favor of the plaintiff, and they hold for the benefit of creditors who unite to a meritorious equity, the legal estate. These trustees are hound to these creditors and cannot relinquish the trust. 4 John Ch. C., 126. ■</p> <p>The plaintiff was a creditor under this deed of trust, she could take under it, but only according to its provisions. Irwin v. Tabb, 17 Serg. & Rawle, 419. -</p>

<p>H. devised to his wife S. his dwelling1, &c. “with full privilege of the same as long as she is willing to manage the place.” “In case it should be too burdensome to her, and she and my creditors will agree to dispose of the land, &c. or in case of her death, then it. is my will that my. executors sell the same at public or private sale, to the best advantage.” .</p> <p>He directed in the event of a sale, that after paying his debts, his.wife should have “the one-third of all money left.” He empowered his “executors, or the survivor of them to make good assurance and sufficient title to the purchaser,” and appointed two executors. S. went into possession, and some time after one of the executors, and some of the heirs, but not all, met and consulted about selling, which S. at first opposed, but upon the representation of some, of the children, that she could live Better on the interest, and if that were not sufficient, some of the principal might be taken, she assented. This executor offered the land at public sale, when the widow gave notice that she would not give up the land, the executor, notwithstanding sold. In this proceeding the co-executor, who was then in full life, was not consulted, and took no part. The có-executor died, and the surviving executor then made a deed to the purchaser, who brought ejectment against S. the widow, to recover the land.. Held, that the land was given to her for life, anda naked authority to the executors jointly to sell by her consent, or after her death, and'that one could not sell; and that it was doubtful whether the deed of the survivor to apurchase on sale by him alone in the life-time of the co-executor, would make such sale good, but it would not be good without the free and renewed consent of the widow.</p> <p>Her consent to sell, made necessary by the terms'of the will, was in the nature of a license or authority, and was revocable, unless given upon some valuable consideration so-as to couple it with an interest.</p> <p>It would seem that her consent to a sale, as it would transfer her estate, which is a freehold, should be by deed, and would fall within the provisions of the act against frauds and perjuries.</p>

<p>By the act of the 19th April, 1794, the widow of an intestate has a lien on the lands taken at the appra.seraent in tile Orphans’ Court for the value of her purpart, the interest of which is to be paid to her during her natural life. Of this lien the Orphans’ Court cannot deprive her. This lien, as to such purpart is extended to the heirs who are entitled to their proportions of it after her death; and in this respect there is a distinction between the purpart of the widow, and the shares of . the heirs in the residue of the value. When, therefore, upon a decree of the Orphans’ Court, adjudging the land of an intestate to his eldest son, a bond was taken with surety to .the'heirs, conditioned to pay their respective shares, and also to pay their proportions of the widow’s purpart at her death, and a mortgage was afterwards taken of the land, conditioned to pay the heirs their shares, exclusive of the widow's purpart, upon which the premises were sold, and purchased in by the heirs; it was held in a suit upon the bond so given, that taking the bond did not extinguish the lien, and that by the purchase of the mortgaged premises on which it was a charge, the lien was merged, and no recovery could be had on the b<?nd.</p>

<p>Appeal from the Circuit Court, held by Kennedy, J. for Lancaster county.</p> <p>Tire action was assumpsit for money paid, and expended, lent and advanced, by Henry Share, for the defendant, James Me-haffy. The suit was brought for- the use of Henry Hains, whose right to sue, formed the principal ground of controversy in the «au'se. .The .pleadings which are- material to the understanding of the cause, were as follows:</p> <p>“And the said James Mehaffy, in his own proper person, comes and defends the wrong and injury, &c. and says, “that before and at the time of issuing the summons in this case, and of bringing this siiitj Henry Hains, the cestui que use, and for whose use the said suit appears to have been brought, had no power or authority from Henry Share, to bring this suit, or any suit in the name of Henry Share, for the use of Henry Hains, against James Me-haffy, the now defendant. That the power from Henry Share, to Henry Hains, to sue and collect money in the name of Henry Share for the use of Henry Hains,. given and dated in May, 1821, is a special power to sue Parker and Hiestand, Jacob Breneman, and Joseph Lytle, and no other person or persons and no power to bring the' present suit: And this the said James Mehaffy, is ready to verify. Whereupon he prays judgment whether the defendant ought to be compelled to answer the plaintiff, and that the summons issued .abate, &c. James Mehaffy, affirmed, &c.</p> <p>To this plea the. plaintiff filed the following replication:</p> <p>“And the said Henry Share, who sues for the use of Henry Hains, saith that the said writ ought not to be abated, or quashed by reason of any'thing by the said James Mehaffy, in his said plea above alleged. Because, he saith, that he the said Henry Share, the said James Mehaffy, and a certain John Pedan, and James Huffy, purchased a certain tract of land, of a certain Frances Evans, and to' secure the payment of such part of the purchase money as was not in hand paid, gave their bond, dated-the 6th of April, 1813, with Joseph Lytle, as the surety of John Pedan, Henry Cassel as the bail of James Huffy, and George-Snyder as the bail of James Mehaffy, the said Henry Share, being by the said principals not required to give any surety as amongst themselves; that the money payable by the said bond, not being paid according to the tenor thereof, the said bond was put in suit in the-Common Pleas of Lancaster county, to November term, 1815, upon which suit such proceedings were had, that judgment was rendered, and execution issued thereon, and the real estate of the said Henry Share, levied, condemned and sold on a venditioni exponas, returnable to November term, 1821, foils 100 dollars, of which the said Frances Evans received $9322, 43$ in satisfaction of her said judgment besides the costs of suit.</p> <p>“And the said Henry Share, further saith that the said James Mehaffy and James Huffy, on the 19th day of July, 1815, took a bond from the said James Pedan and Joseph'Lytle, to indemnify and save harmless the said James Mehaffy and James Duffy, from the payment of $3616,71?!, then and still due and owing by the said John Pedan, as his share and purpart of the said bond, of the said Frances Evans, until she received satisfaction for the same with its interest, by the sale of the real estate of the said Henry ¡Share, as aforesaid; thattlie said John Pedan, atthetime of the sale of the said Henry Share’s real estate was, and is wholly insolvant and died so. That the said Joseph Lytle was, and is fully indemnified, and saved harmless for becoming surety of the said John Pedan, in the said bonds respectively, and has and holds the said money in his hands. And the said Henry Share, further says, that on the 17th day of August, 1819, he drew a promissory note in favor of Henry Cassel, or order, payable sixty days after date, at the Farmers’ Bank of Lancaster, for value received for $3825, which he the said Henry Cassel, and the said Henry Hains, indorsed to the said bank, and directed the payment of the said note, when discounted to he paid to the said Henry Share, which he received, which note, not being paid according to its tenor, was in •due form of law protested, and the said Henry Hains 1o redeem himself from his said indorsement, and the protests of the said note paid to the said bank in satisfaction of the same, the sum of @2982, 76, on the 5th day of September, 1820. And the said Henry Share, further says, that on the 17th day of February, 1819, he-made his promissory note, payable to the order of the said Henry Hains, junior, at the office of discount and deposit at Lancaster, for the sum of @2700, without defalcation for value received, which the said Henry Plains, and a certain Henry Plains, indorsed to the said bank, and directed the amount of the said note to be paid to the said Henry SJiare, which said note, not being paid according to its tenor, the said Henry Hains, the payee and indorser of the said note, to redeem himself from his said indorsement of the said note, and the protest thereof, on the 28th day of April, 1819, paid to the said office of the sum of @2708 48, in satisfaction of the said note. And the said Henry Share, further says, that he the said Henry Share, to save harmless and indemnify the said Henry Hains, junior, from the payment of the said two several sums of money, for him the said Henry Share, as well by the said instrument of writing in said plea, stated,, of the 12th May, 1821, which was by mistake of the scrivener, not drawn according to the intent- of the parties, as well as by parol transferred and made over to him, the said Henry Hains, (among other things,) all and every right, title, claim, interest and demand in law and equity, which he the said Henry Share had-enjoyed, and held and was entitled to, for compensation and contribution from the said parties principals and their surety, respectively,' in the said bond and judgment of the said Francas Evans, to wit: the said James Mehaffy, James Duffy and John Pedanj to the extent of the moneys levied and paid on the said bond and judgment for each of them by the said Henry Share, to the said Frances Evans, by and arising from the sale of the real estate of him, the said Henry Share. And this he the said Plenry Share is ready to verify. Whereupon he prays, judgment and his damages by him sustained on occasion of the non-performance of the said promise and undertaking of the said James Mehaffy, in the said declaration mentioned to be adjudged to him,” &c.</p> <p>On the 2d of May, 1829, the defendant obtained a rule to shew cause why the replication should not be struck off, and on the 9th of May following, the court directed the defendant to rejoin to the replication filed, whereupon the following rejoinder and sur-re-joinder, and issue were put in.</p> <p>“And the said James Mehaffy, as to the replication of the said plaintiff, to the said defendant’s plea in abatement pleaded; protesting against the truth of all and singular the facts therein stated and set forth, and also protesting that they contain no answer to the facts stated, and issue tendered by the defendant’s plea in abatement saith, that the said plaintiff ought not, by reason of any thing by him alleged, to have or maintain his said writ of summons against him, the said James Mehaffy. Because he saith that the said Henry Share did not either by the said instrument of writing, in the defendant’s plea in abatement stated, or by parol, transfer and make over to the "said Henry Hains, any right or authority to issue the original writ of summons in this cause. And of this, he the said James Mehaffy puts, himself upon the country.”</p> <p>And the said plaintiff, doth the like, issue and rule for trial.</p> <p>And now to wit, the 25th April, 1831, the defendant filed an affidavit of the death of Henry Share, and objected to the jury being sworn until his personal representative should be made a party to the suit: this objection was over-ruled by the court, and the jury was ordered to be sworn, to which the defendant excepted. The jury was then sworn and the trial progressed.</p> <p>The plaintiff produced and proved the execution of the following power of attorney or assignment, which Was received in evidence:</p> <p>“Knowall men by these present, that I Henry Share, of Done~ gal townshipj Lancaster county, and state of Pennsylvania, have made, ordained, authorized, constituted and appointed, and by these presents, do make, constitute and appoint Henry Hains, junior, of Donegal township, aforesaid, my true and lawfulattorney, irrevocably for me and in my name, but to the use of him the said Henry Hains, junior, to ask, demand, sue for and recover and receive of and from Jacob Brenemdn, of Donegal township, aforesaid, the estate of John Pedan, deceased, and Joseph Lytle, in Rapho township, Lancaster county aforesaid, all and every such sum, and sums of money, debts and demands, which now are, or may become due, and owing to me the said Henry Share, by and from the said Jacob Breneman, the estate of John Pedan, deceased, and Joseph Lytle, and also to recover and receive the amount of the two judgments entered in the Prothonotary’s office of Lancaster county, in the name of said Henry Share, and against John Hiestand, and William J. Parleer, which two judgments were appealed by John Hiestand, and in default of payment thereof to have, üse and take all lawful ways and means in my name or otherwise, for the recovery thereof by attachment, or otherwise; and on receipt thereof to make, seal and deliver requittances or other sufficient discharges for the same for me and in my name, •' and to do all lawful acts and things whatsoever concerning the premises as fully, in every respect as I myself might or could do if I were personally present, and an attorney or attorneys under him for the purpose to make, and at his pleasure to revoke, hereby ratifying, allowing and confirming all and whatsoever my said attorney shall in my name lawfully do or cause to be done in and about the premises, by virtue of these presents, hereby revoking all .former letters of attorney by me given, so far as respects the collecting of the above mentioned debt and judgment. Witness my hand and seal this twelfth day of May, one thousand eight hundred and twenty-one.” HENRY SHARE, [l'.s. j</p> <p>Sealed and Delivered ? G-eokge Matiiiot, in presence of $ William Child.</p> <p>William Childs, the scrivener who drew this power of attorney,who was a 'subscribing witness, and proved its'execution, was examined as a witness, and gave testimony of which the following is the substance. John Pedan, .Pfenry Share, James Mehaffy, and James Dvffy, had made a large purchase from Mrs. Frances Evans, and after paying the first instalment, gave their bond for about'twenty-four thousand dollars, with three sureties, Joseph Lytle, George Snyder and Henry Cassel. It was understood that Joseph Lytle, was surety for Pedan,'Snyder and Cassel for Mehaffy and Duffy. Share gave no security. ' After several payments, Mrs. Evans sued the bond, and got a judgment against all except Mehaffy, on‘whom, by the .direction of Mrs. Evans, the writ was not served. The defendants made a settlement to ascertain how much, as between themselves, each was to pay: On that settlement, it was ascertained that John Pedan was deficient three thousand six hundred and eighteen dollars and seventy-one cents, John Pedan and Joseph Lytle, gaye James Mehaffy and Jumes Duffy, a bond to indemnify them for any money they might have to pay for 'Pedan, on the bond to Mrs. Evans. A copy of this bond, in the hand writing of Mehaffy, (who after notice to produce the original ■ refused to do so,) was given in evidence, and it was also proved that to indemnify Ly tle, as his surety, Pedan had. confessed judgment to Lytle, in Dauphin county.</p> <p>The plaintiff showed that Henry Share’s land whs levied on and sold by Mrs. Evans, for $16000, out of which she received the sum of nine thousand three hundred and twenty-two dollars and forty-three cents.</p> <p>The witness proved that all the circumstances of this transaction had been explained by Share to Hains, and that an offer had been made on a- former occasion, to transfer his claim to Hains, which was then declined. That on the 12th of May, 1831, (Share, being pressed and arrested by Hains,) Share and Hains desired him to draw the instrument given in evidence, to which he was a witness. He stated that the name of Mehaffy, was only mentioned in relating the whole transaction that it was this claiiji, arising from the payment to Mrs. Evans for Pedan, by the sale of Share?$ land, which was to he transferred to Hains, but that it was Pe-dan and Lytle, who were spoken of as liable to pay it; and all the circumstances were minutely detailed, to show that thé claim was good. It was proved that Pedan was insolvent, and dead.</p> <p>The plaintiff shewed that Henry Hains, had been indorser for Henry Share,had been compelled to'pay for him. large sums of money, (exceeding the amount claimed in this suit,) before the assignment by Share to Hains._</p> <p>The suit was brought to recover from James Mehaffy his proportion of the money levied from Share, and which ought to have been paid by Pedan, and for which the others were bound to contribute to Share on Pedan’s failure.</p> <p>The power of attorney from Share to Hains, the evidence given by Childs, the subscribing witness, the copy of the bond of indemnity of John Pedan and Joseph Lytle, to James Mehaffy and James Duffy, the notes drawn by Share and indorsed by Hains, which he was compelled to pay, the record of the suit of Frances Evans against Pedan, Mehaffy, Duffy, Share, Cassel, Snyder and Lytle, were objected to by the defendant, and formed several bills of exception, which were taken in the cause. ■</p> <p>The defendant offered in evidence the record of a suit brought by Henry Share, for the use of Henry Hains against Joseph Ly-tle, for the same claim now in suit, and in which the plaintiff was non-suited. Also the record of sundry mortgages and judgments existing against Henry Share, at the time he assigned his claim against Henry Hains; also the record .of a judgment of Christian Becker against Matthias Bank and Henry Share, to August .term, 1,815, and the scire facias thereon to April term, *1818, and the subsequent proceedings in the Supreme Court, see Bank v. •Becker, 13 Serg. & Raiote, 41. Also the reeord of a suit by Henry Share, for Henry Haiyis against- Jatnes Mehaffy, in the Circuit Court of Lancaster county, which had been brought in the District, Court to September term, 1818,-to each of which the plaintiff objected, the court sustained these objections and the rejection of these records formed several other bills of exception.-</p> <p>The following entry was made on the record of th& scire facias issued to August term, 1819, on the judgment of Frances Evans, against Pedan and others: ' ■</p> <p>“June 26th, 1821, on motion of Mr. Buchanan, on behalf of Joseph Lytle, who is a surety in the .bond upon which this judgment was.obtained, the court granted a rule to shew cause why he should not be substituted in the place of the plaintiff, and by means of this judgment, receive the sum of $>1000, together with interesf from the 18th of August, 1818, out of -the proceeds of the sale o tire real estate of Henry Share, who is a principal in the said bond and judgment, the said Joseph Lytle, having'paid-to the plaintiff upon the said .judgment the said sum of $1000 on the said 15th of August, 1818, as per.receipt of that date.”</p> <p>• Mrs. Evans was offered as a witness by the plaintiff, but being objected to by the defendant, was withdrawn-. The defendant had on-the -13th day of June, 1827,.táben a rule on the plaintiff’s attorney, to file his-warrant of attorney, and the warrant was filed the 9th of May,. 1829.</p> <p>The defendant requested 1¿he court to charge the jury on the following points, and file the charge of record:</p> <p>1. That before the plaintiff can recover in this case, he must prove," by legal and competent proof,' that James Mehaffy was indebted to Henry Share, for money advanced, &c. by Share for him, Mehaffy, and at his request. That Henry Share considered it so, and intended to enforce the- said claim against the said James Mehaffy, and actually-assigned and transferred it to the present plaintiff, 'Henry Hains. .</p> <p>2. That Henry .Hains the~plaintiff, cánnot recover in this suit, without proving an assignment or transfer of Share’s claim against Mehaffy, (if any he had) to him, Hains, either in writing, or by paroL ... ",</p> <p>. 3. That the instrument of writing, of the 12th of May,. 1821, referred to in the pleadings, contains no such transfer, and is no authority to maintain this suit.,- That there is no' proof of any mis--take of the scrivener, in drawing said instrument of writing. Nor has the plaintiff given any proof of any parol transfer in this case and that consequently bn the issue formed, the jury must find for defendant.</p> <p>The court charged the jury as follows:</p> <p>“This is an action of assumpsit, brought by Henry Hains, junior, in the name oí Henry ¿¿hare, for. the use of the said Henry Hains, to recover of James Mehaffy moneys, which it is alleged Henry Share advanced, paid, laid out and expended for the said Mehaffy, at his special instance and request,- &c. '</p> <p>You will first. enquire whether James Mehaffy was indebted to Henry Share on such.account or not, at the time of commencing this suit.</p> <p>Next whether Henry Hains had a right, and authority from Henry Share to bring this suit, and to enforce payment from Mehaffy-*</p> <p>If you should find that James Mehaffy, was indebted to Henry Share, for money paid, advanced, &c. by. the said Henry Share, for James Mehaffy. And again, that this claim was assigned by Share .to Hains, it will be . your duty to ascertain and fix the amount'of damages, or money — that the •defendant ought to pay the plaintiff.</p> <p>With respect to the first point, you have it in evidence, that Henry Share, James Mehaffy, James Huffy and John Pedan, as principals, and Henry Cassel, George Snyder and Joseph Lytlér as sureties, on the‘6.th of April, .1813, joined in executing and delivering an obligation to Mrs. Frances Evans for $48,581 25, conditioned for the payment of $24,290 62} to Mrs Evans, on the first of April, 1814. . .</p> <p>A considerable portion oí this obligation, appears to have been paid, and probably by the several principal obligors in their proper proportions, previously to the 19th of July,i-1815, when it appears from a bond of indemnity, given by John Pedan arid Joseph Lytle, to James Huffy and James Mehaffy, a balance was due on this bond, and John Pedants one-fourth of the sum due on it, amounted to $3,616 705. In the course of two or three months after this? Mrs. Evans commenced a suit upon this bond, to November term, 1815. Thasummons in commencing this suit, by direction of Mrs. Evans, was not served on James Mehaffy, although he was joined with, the Others in the summons, hut was served on the others, as appears by the return of the sheriff, and judgment by default-was entered on the 22d of January following, 18,16.</p> <p>At this time, less than $9000 appears to have been due on the bond, and therefore most likely something. had been paid upon it to Mrs. Evans, after the 19th of July, preceding. It may be that Jam.es Mehaffy, in that- interim paid @3616,705 his own fourth of the balance due on the 19th cf July, 181-5, and that may be the r«a-son why Mrs. Evans directed the summons not to be served.on Mehajfy, expecting' that if she had a judgment against the other three, she might be able id compel each to pay his proper proportion. If this- however were her motive for giving such direction, she did not succeed in it: for the whole balance due upon this bond, or the judgment obtained upon it, @9,322 43, was. recovered from .Henry Share, by -a levy upon, and sale of his -real estate. . •</p> <p>The circumstances of the writ of summons not being served upon Mehajfy, is no evidence, as.has been contended, of Mehajfy having ever been discharged or -'released by Henry Share, from his liability to Share, as .a principal co-obligor. The omission of the sheriff, to serve the writ on Mehajfy,■ was in obedience to the act and direction of Mrs. Evans¿ over whom Henry Share, had no control,..and with which it does not appear he had any .concern.</p> <p>It is manifest and not contradicted, that '$9382' 43, the balance of the debt and interest clue on this Obligation beside costs of suit, •were paid by Henry Share, as a' principal co-obligor,' or out of the money arising from the sale of his real estate, which is the same thing.5’ 1</p> <p>Answer of the court on the points submitted by defendant’s counsel:</p> <p>1. “To entitle the plaintiff to recover in this case upon the issue that is formed, it is necessary that he .should have proved that James Mehajfy the defendant was indebted to Henry Share for money advanced, &e. by Share for Mehajfy, and at his request. This request, however, need not he an express request, because, aá between joint principal’s co-obligers, when one of them pays more than his proportion, it will be considered in law as money paid and advanced for the others, and at their request; the law in this case implies the request, as also a promise by the others respectively to reimburse hiiidso paying, their respective proportions, so that upon a final adjustment of the whole, each- one shall have paid his proportion according to their respective rights in the obligation as originally concocted. To enable Henry Hains to enforce this claim against James Mehajfy, and to sue bim for it, it was hot necessary that Henry Share should have expressly authorized Hains to sue Mehajfy. If he' actually assigned' the claim to bim for a Valuable consideration, or in payibent of, or as collateral 'security for a subsisting debt, owing by Share to Hains, it will and ought to. be implied therefrom that he intended that Hains should sue Mehajfy, if he did not pay without Without assignment of the claim by Share to Mains, or an express authority given by Share to Hains, he would have no right to sue Mehajfy. But I repeat, if there were an assignment of this claim, either in writing or by word of month, by Henry Share to Henry Hains, to secure to Hains the payment of a debt which Share owed, and in consideration of which too Share obtained his discharge from arrest, and the prosecution of a suit of Hains; without naming Mehaffy in the assignment, orafithe time of making it, Hains would thereby acquire an irrevocable authority to sue Mehaffy, or any person who was liable, and bound to pay it, unless there was an express stipulation or understanding between Share and Ilains to the contrary. Neither is it material whether Share considered Mehaffy liable to pay this claim or not, if he never released him from it — ■ of which there is no evidence — an unqualified assignment of it would give an authority to sue Mehaffy for it, if he were liable, without naming him.</p> <p>■2. Henry Hains cannot recover in this suit, unless you are satisfied from the evidence given, that Henry Share assigned the claim for which this suit is brought, to Henry Hains; but a written or verbal assignment or transfer, will be sufficient to enable him to sue for it, if good.</p> <p>3. The instrument.of writing of the 12th of'May, 1821, referred to in-the pleadings does not of itself contain an assignment of a claim against James Mehaffy by name; nor any authority to sue him. But the nature and origin of the debt or claim which is thereT by assigned to' Hains against John Pedan and Joseph Lytle is not described nor particularly designated; and William Child, Esq., a witness .on the part of the plaintiff, who drew that instrument of writing, and is"a subscribing witness to it, has testified and repeated it more than once, that the claim now in suit was the same that was mentioned at thfe time of drawing and executing that instrument, and an assurance given by Share to Hains, that Pedan wA Lytle were liable to pay it, and that he described it merely as a debt against them. It will be your duty to take the testimony of Childs in this behalf into your consideration in connection with that instrument of writing, inasmuch as it goes to explain the nature of the claim or debt which was intended to be assigned, which is omitted in the writing; and if you should believe from this instrument of writing, and from the testimony of William Childs, that the claim which this suit is brought to recover, was intended to be assigned by Share to Hains, and this is a matter which you ought to decide according to what you shall believe was-the intention of the parties at the time, it was not necessary that the name of Mehaffy should have been mentioned at that time, to give authority to Hains to sue him, It was sufficient if he were liable for the claim which was actually, and intended to be assigned. It does not appear from .the testimony that the scrivener committed any mistake; but it seems, according to his testimony, that he omitted, or has not described the nature and origin of the claim in this case, which he says was the same that was assigned. The court cannot say that no evidence has been given-of a transfer of the claim in this suit, because what has been testified to by Squire Childs may, and ought it credited by you", to be considered as part of the assignment, and if so, will embrace the claim in this suit, and would give Hains a right to sue for it, if well founded.”</p> <p>The verdict of the jury was for the plaintiff, and thé damages assessed $2546.</p> <p>On the 30th of April, 1831, the defendant moved for anew trial, for tire following reasons, to wit:</p> <p>1. The court erred in permitting the jury to be sworn, -and proceeding to the trial of the cause in /the then situation of the pleadings, and especially after a positive affidavit of the death of Henry Share, and a suggestion of this fact on the record; contrary to the wish of defendant's counsel, and when they in writing objected to the same. „•</p> <p>2. The court erred in permitting the plaintiff to go into evidence of the merits of his case, so as to slrow'what sum he was entitled to recoyer on a hearing on the merits; and instructing the jury when they were sent out that they were, in case they found for the plaintiff on the issue, to assess his damages.</p> <p>3. The court erred in, admitting the evidence as testified to by William Child, Esq.</p> <p>4. The court erred in admitting in evidence the paper dated the 12th of May, 1821, purporting to be a letter of attorney from Henry Share to Henry Hains, junior. ■</p> <p>5. The court erred in admitting in evidence the copy of the bond of indemnity, purporting fo have been executed by John Pedan and Joseph Lytle to James Mehaffy and James Duffy, and dated 19th July, 1815.</p> <p>The court erred in admitting in evidence the note drawn by Henry Share, and indorsed by Henry Hains, and Henry Hains, junior, payable tó Plenry Hains, junior, dated the 17th of February, 1819, payable in sixty days, at the office of discount and deposit at Lancaster, and paid off by Henry Hains, junior, after protest, on the 28th of April, 1819, $2,708 48.-' And also the noto drawn by Henry Share, and indorsed by Henry Cassel, Plenry Hains, junior, and Christian Miller, dated the 17th of August, 1819,, and payable to the order of Henry Cassel, in sixty days, at the Farmers’ Bank of Lancaster, and paid off by Henry Hains, junior, after protest, on the 5th of September, 1820, @2,982 76, together with the protests and receipts accompanying the same as given in evidence.</p> <p>7. 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C» l&Sl'g.g 5-§ ^ & ¡3 15 i ¿ ® 5= ^ ® 3. h sr&.SÍi'S-® “ ro S- NvS</p> <p>13, That the damages are unreasonable,,and excessive,-'and contrary to law, and. not warranted by-, the evidence.in the cause..</p> <p>14. That the verdict of the jury is.contrary .to law and the evidence in the cause. . .</p> <p>. The foregoing'reaspn were sworn to by James Méhaffy as being' “correct and true.” : '</p> <p>‘Thefollowing-additional reason'is assigned by the counsel of the'defendant, he hot being in .court at the tihae the circumstance occurred; and not therefore being within his knowledge, but having transpired' before the Court, the reason is thus assigned: ; ■'</p> <p>. That when the jury returned to .the -court to give in their verdict it, was for the first tihae discovered by defendants counsel, that they had out with them', when deliberating in the" jury room, a. 'statement. and calculation in'the hand writing of the. sénio.r'cdunsel'of the plaintiffs, which was not given in evidence, nor .submitted to defendant^ counsel, and which may have misled the. fury in makirig up their verdict; arid that , a new trial ought to be granted on this account. - -</p> <p>, The counsel of 'the plaintiff testified, that neither of thpria knew how the paper referred to in the last reason assigned had .got to the jury. ' ’ It was a calculation of the principal and interest on óné of the notes which Mains had. been compelled to pay-for Share. ■</p> <p>The Circuit Court- over-ruled the motion for a new trial, and directed judgment to be entered oh the verdict;- whereupon-the -defendant appealed to the Supreme Court, and now assigned the'same reasons for a new trial as those insisted- on in the Circuit'Court.</p> <p>-Argued that the issue presents a single point; a fact affirmed on' the.one side, and denied on the other. . That point was, that Hains had power to sue'the claim, pf Share against-the defendant.' This was affirmed by the plaintiff, and denied -by the defendant, and all the evidence which went to any other was irrelevant, and should not have heeir received.." As to this point, -they denied that there was any evidence to establish it. - The power of attorney was not an assignment, but a m.ere power, which must receive;'a-strict construction, and cértainly did not confer the right to institute this suit,-. for it'designates the debts, as to.which authority 'is given to sue; and this is not among'them, expressió uriius est exchxsio alterius. ■ 'It was'not- his intention'to transfer any .claim against Melidffy, as he was.ignorant of :the fact that he had §dch‘ claim, and it did riot appear/that if was riot His. intention -to release Mehaffyy ■</p> <p>Nor did the plaintiff Hains establish a parol-transfer; so far from it it was proved that on’a former occasion an-offer was made to-traris--fer this claim, and it was'then refused. ’ Take, then-, thc’writing and the testimony of Childs separately, and the transfer is not established; but the attempt is made to make it out by connecting them together, in violation of the rule which forbids the introduction of parol evidence, to contradict or vary a written instrument. The only exceptions to this rulo are in cases of fraud, mistake or trust, neither of which existed here. . ,</p> <p>They contended that the court erred in ordering the cause on when no issue had been joined on the merits,, and proof was given of the death of the plaintiff. The case they argued did not fall within the act of the 23d April, 1829, Pamphlet'Laws, 355, upon which the court decided this point. ■ This error led the court to others in pcrmitting-eyidence as to the merits to go to the jury, and instructing them that upon finding in favor of the plaintiff, it was their duty to ascertain the amount due, when the issue presented the naked qüestion as to the right to sue.</p> <p>The court they contended were in error in not receiving evidence of the mortgages, and judgments against Plains existing at the time of the alleged assignment; for if there were a'right of recovery against the defendant, that right should pass to these creditors. If they had not a lien upon the claim, still, as the recovery of their debts had been prevented by the judgment of Mrs. Evans, they had a right by substitution to come in to recover the fund to which Share obtained a claim> by the payment of that judgment.</p> <p>The damages they contended were erroneously calculated; for at all events, the record of Mrs. Evans’ judgment showed a payment of @1000, which ought to have been .passed to the credit of Me-hcijfy. •</p> <p>It was important to preserve the trial by jury in its purity; here'a paper, which .had been objected to, and which, on that'objection, the court had refused to permit to be sent out, was yet in some way got to the jury. It may have had an influence upon the jury; but this is not so. much to be, regarded as-the importance of the principle of preventing improper practices upon a jury. .They cited 2 Stark. Ev., 80, 81. Gilb. Ev.,, 4, 5. Peak. 168, 169. Mumfordv. McPherson, 1 Johns. R. 413. Share v .Anderson, 7 Serg. & llawle, 433. 1 John Ch. R. 273, 282.</p> <p>Montgomery (with whom was Ilopkins, whom the court declined to hear,) for the appellee.</p> <p>The objection to swearing the jury is met by the express terms of the act of assembly referred to.</p> <p>Th.e point in issue it,is true was whether Plains .had authority to sue, but it does not lay in the mouth-of the defendant to object that there was no plea to the merits; he might have-put in such plea; but he chose to rest his defence on the issue joined. The replica» lion of the plaintiff contains an averment of the transfer to Mains, and of the mistake in not making it a part of the written power. If the defendant considered this replication objectionable, he should have demurred to it, instead of which he joined issue upon it, and cannot now complain that evidence was received to sustain it.</p> <p>If an issue in fact be joined, upon the replication to a plea in abatement, and found for the plaintiff, the jury should assess the damages, and the judgment is peremptory for the delay, quod re-cuperet, and not quod respondeat. 1 Chit. PL 455. 2 Sanders, 211, note 3. If the jury do not assess the damages, a venire de novo is awarded. Upon a demurrer in the case of a plea in abatement. there must be a respondeat ouster. 3 V/ilson Rep., 367. % <Arch. Prac. 3, 4. Wright v. Holly, 3 Wendel. Rep., 258. Wallace Rep. 57, 8. The defendant was permitted to give any eviden ce which went to the merits of the claim. It was not pretended on the triai that the $1000 had been paid by Mehaffy, nor was any receipt produced, or other evidence of payment.</p> <p>The objection as to the evidence going to affect a written instrument is wholly untenable.. In the first place the evidence went to sustain the issue, for by that it was open to the plaintiff to prove an authority either in writing or by parol, and in the second place the evidence did not contradict or vary the instrument, but explained a latent ambiguity by ascertaining the nature of the debt assigned. The instrument given in evidence was in form'a power of attorney, but in substance, which alone is regarded, it is an assignment. It assigns the claim against Pedan, which by parol evidence was ascertained to be a elaim for contribution, and such assignment would carry the remedy against Meliaffy, as well as every other remedy.</p> <p>The rule that a bond may notbe given in evidence in assumpsit does not prevail here, so as to exclude the bond of indemnity to Mehaffy and Duffy. It went to ascertain the extent of Redan’s default. Thompson v. While, 1 Dali. 428. Charles v. Scott, 1 Serg. & Rawle, 294.</p> <p>It cannot be pretended that the judgment creditors, or creditors by mortgage of Share had a lien on the claim, which was a chose in action; there is no equity which would vest in them this right; nor do they make any such claim. No plea or issue was put in, which could raise the question, and it does not lay in'the mouth of Me-haffy to interpose this objection. '</p> <p>The paper which was out with the jury was altogether immaterial, and had no effect upon their verdict.'</p>

<p>Under the act of the 16th of April, 1827, entitled “an act relative to the distribution of money, arising; from sheriffs’ and coroners’ sales,” &c. an appeal does not l‘efrom ^le decision of the Court of Common Pleas, setting-aside a sheriff’s sale.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Schuylkill county, in an action of ejectment brought by Ebenezcr G. Bradford, Esq., against Peter Star, and others, for a tract of land in that part of Berks county, which was divided from Berks county and is now the county of Schuylkill. The cause had been tried on the 15th of January, 1812, and a verdict and judgment given for the defendants, upon which a writ of error was sued to May term, 1812. On the 29th of May, 1813, the Supreme Court reversed the judgment, and awarded a venire de novo. " On the 31st July, 1826, a transcript of the • docket entry of the suit in Berks county was filed in the prothonotary’s office of Schuylkill county.- Qnthe22d of July, 1830, the defendants offered to put in a plea to the jurisdiction of the Court of Common Pleas of Schuylkill county, and that the suit, by the facts stated, had been abandoned and discontinued. This was over-ruled by the court, and on the 31st March, 1831, tire case was tried; and a verdict being given for the plaintiff the defendants brought this writ.</p> <p>The plaintiff made tille through Jacob'Miller to whom a warrant issued on the 1st of October, 1784, on which a survey was madé to Michael Gunkle on the 19th October, 1784, and on the 10th of January, 1786, a patent issued thereon to Sheaffer, from whom the plaintiff deduced his title by regular conveyances.</p> <p>The defendants claimed, under an application, No. 3940, dated the 7th of April, 1769, to JSronamus Henning, “for three hundred acres of land over the Blue Hills, joining Robert Delap, on the westermost branch of Big Schuylkill in Berks county/’</p> <p>mus Henning. He gave evidence to prove that a survey was made for him in pursuance of his application on or about the year 1769. That evidence consisted of a draft found in the office of the deputy survey- or of this county, without date or name — a memorandum book, called a book of field notes, indorsed Jasper Scull’s book, No. 23, found in the office of the deputy surveyor of Berks county, in which is a memorandum of an application in the name of Erona-</p> <p>Tbe entries in Jasper Scull’s book were as follow:</p> <p>“EhoNAmus HenniNG, 300 acres of land the 'other side oftheBIue Hills, joining Robert Delap, and on the westermost branch of Schuylkill.</p> <p>“Eronamus Henning, © © Ot</p> <p>Nicholas Hollar, - o S £></p> <p>■George Crest, o © >-*</p> <p>George Shoemaker, o *0 *0</p> <p>o so</p> <p>Jacob. Iiichen, - 2 0 .0</p> <p>Cn ^ ©</p> <p>Jacob Kantner, K> O ©</p> <p>The defendants also gave in evidence an order of survey, directed to Andrew Lyltle, without date, also found in deputy survey- or’s office. Anda survey by William Wheeler, dated the 13th of October, 1788, which he called a re-sur-vey.</p> <p>The survey returned by Wheeler, in 1788, was made according to the lines made on the ground in 1769.</p> <p>The defendants further gave in evidence to shew that the application of Eronamus Henning accurately described the land in question, that it was surveyed on the wcstermost branch of Big Schuylkill, adjoining a tract of land which had befen surveyed before 1769, which was claimed, and )vent by the name of Robert Eelap’s land, who was then in full life.</p> <p>Their title to the land in question was regularly brought down from Eronamus Henning, and they and those under whom they claim, had been in possession since 1793.</p> <p>Certificates from the land office, shewing that there was no office right in the name of Robert Relap, were given in evidence by the plaintiff.</p> <p>The court in answer to points, put by the defendant’s counsel charged the jury, among other things, as follows:</p> <p>“An application is the mere inception of a title — and unless the applicant took the other steps required by rules in force under the proprietaries applicable to such inceptions of title, he acquired no right. It was the duty of the person entering the application to shew the land applied for to the deputy surveyor, and to procure it to be surveyed. Whether Henning procured the land in question to be surveyed on his application, the jury will decide. It was also the duty of the person entering the application, to pay the surveying fees to the deputy surveyor, before the payment of which the deputy surveyor was not bound to return the survey. There is in this case no evidence that Eronamus Henning, paid the surveying fees to the deputy surveyor, and consequently the deputy surveyor was not bound to return the survey, and the survey in fact not having been returned until after the plaintiff obtained his warrant and patent ^Eronamus Henning, and those claiming under him, must be postponed. The delay in the return of the survey from 7th April, 1769, to 1st October, 1784, is unreasonable and is so pronounced as matter of law. It was incumbent on defendant to shew that this delay was not occasioned by his negligence or default; he has not shewn that he did what was required of him to entitle him to a return of the survey — and the return of survey having been dela)^ed an unreasonable time, the commonwealth was justifiable on the 1st of October, 1784, in selling the land to the plaintiff; and having in fact sold it, the defendant must be postponed. The defendant’s claim under the application is lost or abandoned by his neglect to pursue it — I say lost or abandoned by his. neglect to pursue it, because there is no proof, that he took any step in pursuance of it beyond getting a survey made, until tho plaintiff had purchased the land in 1784. The getting the land surveyed was not a sufficient pursuit of his claim. Had be paid the surveying fees, and thus entitled himself to a return of the survey, he might have stood upon better footing — but he did not, and therefore has not shewn that he pursued his application with due diligcnee.</p> <p>“If the jury believe from the evidence that the plaintiff obtained his warrant and survey in 1784, his patent in January, 1780; that the defendant’s order to survey his application was mislaid with the survey upon it by the want of order and care in the office for"'a time, which led him to get another order of survey on or about the year 1784, on which a re-survey was made in 1788, and returned into the land office, and that Henning sold his right to Jacob¿ftrtz, who sold to Wheeler, and Wheeler to Jacob Fox, who in March or April, 1793, built a house and stable, planted .apple, peach and cherry trees, made meadows, and continued to live on and improve it, till this time — that plaintiff brought this suit to August term, 1809, in Series county, which was tried and verdict and judgment against him in 1812, in Berks county, on which the plaintiff took a writ of error to the Supreme Court, where the judgment was reversed 29th May, 1831. That he never brought the records from the Supreme Court to the Common Pleas of Series county, nor to the Common Pleas of this county, till 20th June, 1829; then he iiled' 28th June, 1826, a certificate of Clerk of Common Pleas of Berks county, after which he took a rule to plead in four weeks or judgment, 9th July, 1829, continued in October, and also in December by consent; 31st March, 1830, continued by defendants on payment of the costs of the term, and rule to take depositions by defendants. If the jury should believe the facts stated in this proposition, the suit was not thereby in law discontinued or retracted, and although the land has been improved by clearing and building, the action was not given up, relinquished or abandoned, and the statute of limitations does not bar the plaintiff’s claim.”</p> <p>The following errors assigned, embrace the points made in argument, and considered by the court:'</p> <p>1. The court erred in charging the jury, that although they found defendant’s application accurately descriptive of the land called for] that it was duly filed with the deputy to be surveyed; that he made an actual survey by régular corners, distances and line brees, regularly marked on the ground in 1769, and that the draft thereof was filed in the deputy’s office, and thence brought before them, and that there was in the-deputy’s book, in which defendants application was entered, this entry: “Eronamus Henning J5,” along with other entries; jmt in point of law it must be postponed and give way to the plaintiff’s title, commencing on the 1st of October, 1784; because defendant’s survey was not returned into the land office before that period.</p> <p>2. The court erred in charging the jury, that there was no evidence, nor any ground from which they could presume that the surveying fees were paid by the defendant, or those under whom they claim, and therefore the deputy was in no default in not making a return into the land office, and the plaintiff was in law entitled to recover.</p> <p>3. That the court erred in charging the jury, that the matters contained inthefirstandsecond errors assigned above, were descriptively matters of law for the court to decide, and that the matters in the said errors assigned taken collectively, were not matters for the consideration and determination of the jury, but matters of law for the consideration and determination of the court, and that the law arising upon them, was against the defendants and in favor of the plaintiff, and that they should find accordingly.</p> <p>The application under which the defendant claimed was precisely descriptive, and the court leaving this point to the jury, and assuming it to be true, instructed the jury that the delay in the return of the survey upon it, in law, postponed the title of the defendants to that of the plaintiff. And upon this point the case mainly rests.</p> <p>Under a precisely descriptive warrant or location, the title vests from the date of the warrant or application, if due diligence is used in obtaining a survey; and where a survey is made upon it, before the date of a warrant under which an opposing title is claimed, it would prevail although that survey had not been returned. McKinney v. Houser, 2 Smith, 190. Lauman v. Thomas, 4 Bin. 51.</p> <p>This is also the case where the warrant or application is descriptive with such reasonable certainty as is sufficient to designate the land intended to be surveyed. If the warrant give but a loose description, allowing a scope of several miles, the title does not attach until survey. And in the case of shifted warrants or locations, when the survey is made on land different from that dcscribéd, it has no effect, except as against those who have notice of it, until the survey is returned into the office, and the acceptance of it by the surveyor general. 4 Bin., 51. Moore v. Shaver, 6 Serg. & Razóle, 130. A.survey on the ground is always notice, and that too even in the case of a loose warrant or application.</p> <p>In Mazis v. Montgomery, 15 Serg. & Razóle, 224, the cases of McKinney v. Houser, and Lazoman v. Thomas, are declared to be land-marks; and the principles therein established and asserted. to be the settled law of the land, and to permit them to be disturbed now would be to unsettle titles, and introduce confusion.</p> <p>. At’ the time when the location under which the defendants claimed issued interest was required to be calculated on the purchase money from six months after the date. This is a matter between the government, and the applicant. • The title is secure in his hands, subject only to the payment of the purchase money. No rigid rule was adopted in regard ±o the payment of the principal.</p> <p>In the same spirit of liberality the legislature have extended the time of payment from time to time. The Commonwealth alone, then, have an interest in this return of survey, and the Commonwealth has not thought proper to require or enforce. The plaintiff nor any stranger has any thing to do with it, and can derive no advantage from the omission to make it.- The survey on the ground is notice to all the world, and gives‘to (he state the right to enforce the payment of the purchase money. Hubley v. Vanhorn, 7 Serg. & Rawle, 185. Blaine v. Crawford, 1 Yeates, 289. Biddle v. Daugal, 5 Bin., 1.48.</p> <p>Then it appears most abundantly, that the survey on the ground completes the title; it must he immaterial of what time the survey is returned. And when a warrant or location is descriptive and a survey is made upon it, the land is no longer subject to appropriation; it is withdrawn from the general masS; and it is the duty of strangers, who wish to acquire title, to inquire in the survey- or’s office of the proper county, and they cannot relieve themselves from the effect of that which has been adjudged to be notice. 2 Smith, Í53. McDoioell v. Young, 12 Serg. & Rawle, 115, 129. In the case of McDowell v". Young the application was precisely descriptive and dated 1766; and the survey on it was not returned until 1821.</p> <p>■ The period relied upon as creating the presumption of abandonment, in consequence of the survey of the defendants not having been returned, embraced the period of the’ revolutionary war, during which he contended all presumption arising from the lapse of time should be suspended. From 1776 to 1781 the land office was closed. During that time no laches could be imputed to any one. jEnter arma silent leges.</p> <p>By the act of the 27 th of November, 1779, Pur don, (edition of 1830,) 762, section 7, any location filed in the land office before the 4th day of July, 1776,'“was confirmed, ratified and established forever;” and by the 10th section of the same act, the arrears of purchase money due on purchases from the proprietaries, “shall be accounted” due and payable to the Commonwealth. This he contended was a legislative determination that titles should not be ¿iffected by the lapse of time during the revolution.</p> <p>In opening the land office, by the act of the 0th of April, 1783, sections 5, 6 and 7, the legislature have declared that in all cases, where surveys have not yet been made, or returned, on any grant, warrant or location, issued before the 10th of December, 1776, on paying one-third of the purchase money, within the space of one year from passing the act, the owner shall be entitled to an order to the surveyor-general to have the same surveyed, and returned; and in case of a failure to pay the purchase money, the mode of enforcing it is pointed out by the act; and solves all difficulty as to the mode of getting the purchase money where the survey of land has not been returned. By the act of the 5th of April, 1782, the time of returning surveys faithfully and regularly made is extended for such further period, as to the surveyor-general shall seem just and reasonable, and the owners of office rights are expressly protected by that act from loss or damage by reason of neglect in not having the returns, &c. of surveys made. It was not in the character of a fostering government to destroy the rights of individuals by the imputation of laches during that portentous period. JPurdon, 515, 516.</p> <p>In the same spirit the legislature suspended the statute of limitations, as to all debts or contracts not barred, on the 1st of January, 1776, between that date and the 21stof June, 1784. Act of 21st June, 1781, Laws of Pennsylvania, fMcKean’s edition,,! 493. 2 Laws of Pennsylvania, (CDalias’ edition,,) 91.</p> <p>If personal estate, and contracts were thus protected during this period, a fortiori, should the same protection be extended to titles to real estate. In analogy to these acts of the legislature, it was decided that the presumption of payment of a bond, arising from length of time, should be suspended between the 1st of January, 1776, and the 21st of June, 1784. Fleeson’s executors v. King, 1 Yeates, 344.</p> <p>But this delay in making the return of survey, if it operated at all upon the title of the defendants, was not a question of law for the court, but should have been submitted, with all the attending circumstances, as a question of fact for the decision of the jury. Simon’s executor v. Shaffer, 5 Serg. & Rawle, 215. The case of Chambers v. Miflin, 1 Penn. Rep., 74 refers, he contended, to surveys made since "1790.</p> <p>The court erred in charging the jury that there was no evidence of the payment of the surveying fees; the lapse of time, connected with the entry in Scull’s book, was evidence to prove payment; and should have been submitted to the jury as such.</p> <p>He contended that the omission and neglect of the plaintiff, after the reversal of the judgment in this case in 1813, to prosecute his suit, until 1829, amounted to a retraction of that suit, and connected with the possession of the defendants conferred upon them the protection of the statute of limitations.'</p> <p>When a person, having recovered in ejectment, neglects to enforce it within the period laid in his demise, his right of entry under that judgment, is altogether gone; and if there have been an adverse ¡Dossession for twenty years, during which such judgment was recovered, it will not avail him to take the case out of the statute of limitations. Beekmanv. Havyland, 15 Johns. Bep. 229. The remitter of the record, which is part of the judgment of, reversal, where that judgment is regularly entered, is only on payment of costs; the defendants were not bound to pay these costs; the-default is therefore in the plaintiff, and he must be affected by it. He referred also to Buggies v. Keeler', 3 Johns. Bep., 267. Fra-ley v. Nelson, 5 Serg. & Bawle, 23. .</p> <p>Denied that the location was descriptive, or that there was evidence of any survey having been made upon it; but as this is assumed by the court, they must be taken as established, and the case then presents the question, whether a neglect to pay the surveying fees, and procure a return of the survey within a reasonable period, creates an abandonment of the title, in favor of an intervening claim. It is admitted that when the location or warrant is descriptive, and a survey is made upon it, in a reasonable time the title vests from the date of the warrantor location; but this does not decide the point presented; for it is ‘-‘added or understood, provided it is otherwise followed up with reasonable attention.” Chambers v. Miflin, 1 Penn. Bep., 78.</p> <p>1. The location in this case was not followed up with reasonable attention.</p> <p>2.. The court under the circumstances had a right to decide the question as a matter of law. . '</p> <p>A location is an application made by any person or persóns for land in the office of the secretary of the late land office of Pennsylvania, entered in the books of the said office, numbered, and sent to the surveyor-general’s office. 2 Smith, 7. This is the definition given by the act of the 25th-of June, 1781. At the time of filing such application seven shillings only were paid,- and surveys .were required to be made and returned within six months, and the whole purchase money paid at one payment, and a patent taken within twelve months, with interest- from six months after the date of the application. And in case of failure pn the part of the applicant, the application was declared to be void, and the proprietaries at -liberty to dispose of the land to ány other person whatever. - 2 Smith, 168. It is not pretended that the proprietaries enforced this system as here kid down, or that they ought; but it shows how they regarded this shadow of a title. It is much less substantial than a warrant; for on that purchase money is paid. The case of Miflin v. Chambers was the case of a warrant, and that case decides the point. It is good law, and good common sense.</p> <p>Here the location was obtained in 9, and no act of ownership exercised under if until 1793, a period of twenty-four years. The order of survey was obtained in 1788, a period of near twenty years? from the date of the application. During this period no taxes are paid, and but seven shillings of the purchase money, and no survey is returned for twenty years. It cannot be endured, that a person who has obtained a location, shall be permitted to hold it if he pleases, without the payment of the purchase money, andaban-don it by never having the survey returned, or not as circumstances-may make it expedient or inexpedient. This would be doing great injustice to the commonwealth.</p> <p>He denied that the case was to be considered as if the defendant’s laches ceasedin 1784; until 1788 or 1793, that laches was continued,</p> <p>, In the case of Middleman v. Masierson, 1 Penn. Pep., 454, which is a mere corollary from Chambers v. Miflin, it was decided that where an application was obtained in 1786, and a survey made on the ground, but the owner of the survey neglected to have it returned, and refused to pay the surveying fees until 1785, when? a Warrant issued to another, that the title of the warrantee should' be prefered. That case was not so strong as the case before the court. It also covered the period of the revolutionary war.</p> <p>Tire court were not only right in declaring that the facts in evidence warranted the presumption of abandonment, but they were right in deciding it as a matter of law,not open for the consideration of the jury. The titles to real estate should be governed by uniform rules not subject to caprice, or to be varied by prejudice.</p> <p>There was no question of fact upoir which the jury could pass. There was unquestionably the eflux of near twenty years, during which no return of survey had been made, and the title of the plaintiff had intervened. There are cases which show it to be a matter of law to be decided by the court, or a question which they may or may not submit as a matter of fact to the jury, according to circumstances.</p> <p>In the case of Duncan v. Curry, 3 Bin., 14, the question was ■submitted to the jury as a matter of law which concluded-the party.</p> <p>In Clugagev. Duncan, 1 Berg. & Bátele, 111, it is decided that abandonment of a claim is not in all cases a matter of fact; it may be a conclusion of law from the facts. Where the question arises on the effect of mere lapse of time, it is the right of the judge to declare the conclusion of law. So iu Watson v. Gilday, 11 Serg. & Rawle, 340, the court say that when a location is not followed up by a survey in a reasonable time, this is constructive abandonment, and may be decided as matter of law by the court. In Barton v. G-lasgo, 12 Serg-. & Raiole, 149, the court declares, as a matter of law, what is not an abandonment.</p> <p>When the facts are strong the court are justified in deciding lach-. es as a matter of law; but sometimes- it is left to the jury under the circumstances; Mickle v. Lucas, 10 Serg. '& Raiole, 293, and in the case of Vickroy v. Skelly, 14 Serg. & Raiole, 372, this question is not only decided as a matter of law, but it is adjudged that, ten years is too long to delay the return of survey, as against an intervening right. And in this case, top, the intervening right com■menced three years after the commencement of the opposing.title.</p> <p>Eight years would be too long a term to keep back a return of survey. Bonnet v. Bevehach, 3 Bin., 175.</p> <p>A man cannot fall asleep, have a half title, and let it lay in a rude and imperfect condition. The law favors the vigilant.</p> <p>It is said in Maus v. Montgomery, 15 Serg. & Rawle, 224, that mere lapse of time, unaccompanied by other circumstances, has not been held to divest the right under an application in less thán three years.</p> <p>The court too was right, as a matter of fact) in saying that there was no evidence of the payment of the surveyingfees; but if wrong it is not an error in law, but an'error in fact of which the plaintiff in error cannot take advantage here.: Biddle y. Murphy, 7 Serg. & Rawle, 230. Varnum v. Kennedy, 6 Serg. & Rawle, 159. Vickroy v. Skelley, 14 Serg. & Rawle, 372. ' '</p> <p>It cannot be believed that the surveyor should keep the receipt of the individual for whom he made the survey. • If the entry imports any thing it imports a chdrge._ .</p> <p>The land office was only closed from 1776 to 1781. , The return might have been made, from 1769 to 1776, and‘from 1781 to 1788. The office was open for fourteen years, during which the return might have been made, and no steps were taken to have the return made.</p> <p>It has not yet been decided what is the proper time within which the Teturn must be made, but a rule may be established by analogy to the limitation in the act of the 36th of March, 1785, which provides that no person who claims possession of land, upon any pri- ■or warrant, whereon no survey has been made, shall enter or bring an action to recover the same, unless he, or those under whom he claims, has had the quiet and peaceable possession of the .same within seven years before such entry, or bringing such action. Rurdon, (edition of 1830,) 584.</p>

IN ERROR. Error to the District Court of York, in which judgment had been rendered in favor of the plaintiff, the defendant in error, on the following case stated, ill the nature of a special verdict. On the 24th of March, 1821, Frederick Eichelberger was seized in fee of two farms in York comity, one in the possession of his son Thomas Eichelberger, the other in possession of his son Wil-liara Eichelberger.

Court of Lancaster county, held by Kennedy, Justice, from a judgment upon a verdict in favor of the plaintiff. ’This action was tried before in tbe Circuit Court, and taken by appeal to the Supreme Court, and is reported in 1 Penn.

<p>An appeal lies from the Circuit, to the Supreme Court, on the refusal of the former to take off a non suit, entered by consent of plaintiff’s attorney, his objections to a continuance having been over-ruled, and the cause ordered on to trial.</p> <p>The conscientious scruples of a Jew to appear in court, and attend to the trial of his cause on Saturday, the Jewish Sabbath, is no ground for the continuance of his cause.</p> <p>On a tales de ci«amsia«iib»s, by-slanders only or those actually present in court, can be selected and returned as jurors.</p>

<p>The Orphans5 Court, in the settlement of an administration account, are not bound by the technical rules of evidehce;for sitting1 as a Court of Chancery, they may re» ceive secondary evidence, and either decide on it, if necessary, or send the fact, intended to be established, to be decided by a jury.</p> <p>One executor, barely permitting a co-executor to receive money, where there are no grounds to suspect danger of losing it, does not make him liable therefor: but when one executor has money actually in his hands, and pays it over to the other, or when he actively assists to have it put into the hands of the other, he is generally liable.</p> <p>It is the duty of the Orphans’ Court, to allow to executors and administrators, in the settlement of their accounts, a credit for payments made to hefts or distributees. And herein of the manner in which such allowance should be made and stated.</p> <p>The allowance to executors and administrators for services in settling the estate must be regulated by all the circumstances attending it; and herein, as of what time such allowance should be made.</p> <p>"When an estate is so situated, that legal advice is proper to direct the course of the executors, the reasonable counsel-fees paid by them, are a just charge against the estate.</p> <p>When an executor presents an administration account to the Orphans’ Court, which exhibits a balance it) his favor; but which being referred to auditors, their report exhibited a balance against the accountant, he, and not the heirs, should be charged with the expense of such reference.</p>

<p>A summons in debt issued against Jl, B and C trading under the firm of Jl and Company, which is served upon A alone, a rule of reference entered, which is served upon A alone; arbitrators chosen who report “That after hearing the parties, their proof,” &c. they find for the plaintiff a certain sum, upon which a general judgment is entered, and an execution issued. Held, That such judgment is void as to B and C, and that an execution against them on such judgment, although issued more than seven years after the rendition of the judgment, may be set aside on a writ of error.</p>

<p>Eeiior. to Huntingdon county.</p> <p>This action originated before a Justice of the Peace, who rendered a judgment for the plaintiff for the sum of #100,00. The defendants appealed to the Common Pleas, and entered into a recognizance before the justice with security, “upon condition that the defendants in the above suit prosecute their appeal with effect, &c.”</p> <p>The court below (Burnside president, dissenting,^ struck off the appeal, on the ground that the defendants did not enter absolute bail before the justice, pursuant to the act of 22d March, 1817, when they appealed.</p> <p>If the recognizance entered into on the appeal, be defective, the party should have been called upon by a rule to perfect his bail within a given period; or in default thereof, that the appeal be dismissed. The court should not have quashed the appeal in the first instance. Means v. Trout, 16 Serg. & Baiole, 349. Noble v. Houle, lb. 421.</p> <p>The, ££&c.,” means every necessary matter which should be expressed. Wilsonv. The Commonwealth, 10 Serg. & Baiole, 375.</p> <p>A short minute of a recognizance is sufficient. Coinmonwealth v. Emery, 2 Bin. 431. Moore v. McBride,■ 1 Penn Rep. 148. .</p> <p>Cited Wash. Turn. Co. v. Callan, 8 Serg. & Rawle, 517.</p>

Whit of error to the Common Pleas of Mifflin county. This action originated bafore a justice of the peace, from whose judgment, the defendants below appealed. John Barling came from the state of New-York, and was, in the month of April, 1828, employed as a laborer on the canal, in Ber-manah township, Mifflin county. In May, 1828, Barling had his leg broken by an accident.

<p>Appeal from the Circuit Court of Norihumhp'land county, held by Gibson, Chief Justice.</p> <p>This was an action of ejectment, in which the heirs of Jonathan Lodge, deceased, were plaintiffs and Robert Simontori, was defendant. '</p> <p>Previously to" 1770, Samuel Hunter and Jonathan Lodge, were the owners of three applications for three hundred abres each, in the names of Hunter, Spencer and Popjáy. ■ In that year surveys were made upon these applications, and afterwards re-surveys were made,«and the location'of one or all of them changed, so as that a body of land of twelve hundred’ acres, was included within, ,the surveys. This it appeared was done for the purpose of preventing the location of any other application or warrant upon any part of these twelve hundred acres, so that Hunter and Lodge might appropriate the whole to themselves. In 1773, they obtained a warrant in the name of Gailey for three hundred acres, which was executed in the same year by Charles LuJeens, and located within the bounds of the twelve hundred acres. Another .survey was made upon this warrant in 1790 which located it upon a.different tract of land, but still within the twelve hundred acres. This survey was made by Samuel Hunter’s executors. '</p> <p>The following diagram exhibits the whole four tracts, and how they were appropriated at different times:</p> <p> </p> <p>There was nothing upon the title papers, which show.od that Lodge, had any interest in these lands. - In his life-time, Hunter gave tract marked No. 1, to hie nephew William Wilson, who1 procured it to be re-surveyed as the Spencer tract in 17S7, had it patented and sold it to Simonton the defendant. No. 2.» Hunter also sold in his life-time, to the corporation, “-for the relief of Presbyterian Clergymen.” No. 3, Hunter and Lodge, sold to Dough-erty in 1774. In 1784, Samuel Hunter died, having first made his last will and testament in the same year, which contained this clause. ■</p> <p>“And I do hereby order and direct that the plantation and tract sold by Mr. Jonathan Lodge and myself to George Dougherty, that the remainder of the moneys due to me, arising from that sale, be appropriated by my executors to, and for, the payment of my just debts, my share thereof amounting to one hundred pounds after deducting the moneys necessary for patenting the same: and I do further order and direel, that the plantation and tract of land in Turbut township, near to Mr. HeioelVs, taken up by Mr. Lodge and myself, to be sold by my executors, and the sum of £24 3 5. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or. his executors, before he. can, or may be entitled‘to any share or purpart thereof.. A.nd'as to the residue of my estate, both real and personal, I hereby give, devise and bequeath the same to my beloved wife Susannah, ^and my two daughters Nancy and Polly, and to them heirs and assigns forever, as tenants in common.”* ■ • • ’</p> <p>Hunter’s executors did not sell the tract of land “in Turbut township, near to Mr. Haoctt’s, &c.” ás directed by the will, but the residuary devisees, sold the same to Robert Simonton, the defendant, in 1810.' There was nothing in the.evict etice, which shewed that Simonton had notice of the sales of tracts No. 2 and1 3, having beenmadeby Blunter in his life-time. There, was á great deal of complicated evidence In the cause, but the foregoing statement of facts, will sufficiently, explain the1 only important question which arose, and was decided by the court. Whether or not the will of Samuel Hunter, under which Simonton claimed, and the other circumstances of the case, were notice to him of Lodger's title to one-half of the land in dispute? His honor being of opinion,.that it was, so instructed the jury; who found a verdict accordingly for the plaintiffs. The defendants appealed.</p> <p>Thc.opinion of the Supreme Court, heretofore delivered hy Justice Duncan, * does not settle'the question, of notice, unless the jury should first find the fact that, the will refers to this tract of land; if it did not, it gave no notice. Upon the three applications, without the payment of purphase money, a'nd contrary to law, four tracts -were surveyed. If, therefore, 'Colonel Hunter clouded the truth, so as that what tract he referred to in his will, was uncertain, it was so uncertain, and made so by himself, that it would not be notice to Simonton, who is therefore an innocent purchaser, without notice. When the will was made, undoubtedly the Gailey warrant was not laid upon the land now in. dispute; suppose,' then, the warrant, and in addition thereto the survey upon it, were recited in full by the will, ■ and Simonton had 1 procured from the office copies of them, and laid them before him; would he not have found •that they had no reference to the land in dispute? • And would not any lawyer have advised him that he might safely buy?</p> <p>The law being that constructive notice must be explicit, clear and certain, Heist cry. Fortner, 3 Bin. 40. Billington v.Welsh, 6 Bin, 129, how can the will of Samuel Hunter be construed to be notice to Simonton. But it is said, it was designated as adjoining HeweU’s; so did another of the-four tracts; on which side of HeweU’s did it lie? for two tracts adjoining HeweU’s may be miles apart. It is said, that the fact is, that Hunter, in his lifetime, had sold the Other three tracts; and therefore the will Could referió none but the land in dispute. Is-this argument sound? How,was Simonton to know that he had • sold' the other three tracts? Was'he to .run through the, county to hunt up .notice? Were the deeds upon record? Where was he to go? In fact,.it appeared on the trial, that Colonel Hunter, had given one of them to his nephew, for which he had not made him á deed- at all. Is ■ this the clear, certain, explicit notice which the law of the cases cited requires?</p> <p>As between themselves, they i>my call their.survey what they please, and call while-acre black-acre, and black-acre white-acre, so long as it affects no one but themselves; but when one of the co-tenants sells his interest, and a thiid person comes in, either the one co-tenant or the other may suffer the evil consequence of the confusion created by them; but it shall not bo visited upon the innocent purchaser.</p> <p>Hunter and Lodge, being the owners of three applications and surveys, and subsequently, of á warrant and survey, it was a matter of no importance to any one, nor is it an important fact to any ques-lion of law, which arises in this.case.. -That they shifted them as to name and location; that they called Spencer Hunter and Hunter Gailey,. and Gailey, Popjay .* they were tenants-in-common. of the whole. ’ As to Simonton this circumstance could have created ho confusion; for'at the time of Hunter’s.death, he had disposed of. three of the tracts, and had but one left, and orié of the three Si-monto'n himself had .purchased. The deed from the devisees of Hunter to Simonton recited the will, and that will gave explicit notice, that Lodge was half owner of. the land in dispute. The will designates the land as warranted, and adjoining Hewett’s; and under this'very Gailey warrant, which was the only warrant ever Colonel Hunter owned, Simonton procured the land in dispute to be patented. • Add to this, that Colonel Hunter owned no olhertract of land at the time of his-death, and what notice could be more certain, than that which the will gave; At all events,' was it not all that the law requires, — that which should put a prudent man upon inquiry as to the title? ■</p> <p>Ross, J. — In this case, the third and fourth reasons assigned for a new trial, will only be considered at this time' by the court. ■ The following is the provision in the codicil to-the will of Samuel Hunter, upon which depends the decision of these exceptions:</p> <p>*££I do hereby order and direct, that the plantation and tract sold by Jonathan Lodge and myself, to George Dougherty, that the remainder of the moneys due to me arising'from that sale, be appropriated by my executors to and for the payment of my just debts, my share thereof amounting to one hundred pounds, after deducting the moneys necessary for patenting the same. And I do further order arid direct, that the plantation and tract of land in Tur-but township, near to Mr. Hewett’s, taken up by Mr. Lodge and myself, be sold by my executors, and the sum of £24 15. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or his executors, before he can or may be entitled to. any share or purpart thereof.”</p> <p>This codicil is dated the 29th of March, 17S4. I cannot perceive-in what respect the. provision in this codicil, hás any’ application to the land in controversy, or how it can.be considered descriptive of' it, so as to amount to a constructive notice to Simonton wA others. It is certainly not such a description, as, if .’contained in a warrant, would locate itself. Would it then, if in a warrant or location, be constructive notice to a subsequent warrantee? The'will describes' it as a plantation and tract of land in Turbut township, near to Heioett’s. But how near to Heiuetf’s? Was it near to Hewett’s on the north, south, east or west? Again, ££it was tallen up by Lodge and myself. ” A ccording to the evidence, there were three other tracts in the immediate vicinity, or adjacent thereto, taken up by Hunter and Lodge, to which the same description would lmvc been' equally appropriate. But further, the'will says, “it was a tract for which Hunter had paid “for warranting 4324,15.” This however, was to be refunded by Lodge, or his executors, before he could be entitled to any share or purpart. theredf. It appears to me, there is nothing in this codicil, from which notice to Simon-ton, that Lodge had an interest in- the particular land in dispute, can be fairly inferred. A history of the transactions; respecting this land, as collected from the evidence and admissions of the parties, relieves, I think, the point from all doubt.</p> <p>From this it will appear, that by the shifting of the surveys, and the transposition of the names of those, making the' location, to tracts, different from what they called for by the first set of sdr- , veys, all was not honest and fair, but that the intention was to render the appropriations and surveys so confused, as to place it beyond the power of any bona fide settler to ascertain; vyhether any, and if any, what part of the tract of 1200 acres had not been su'r-r veyed by proper authority, and remained unappropriated. . And in this they succeeded. It was a fraudulent attempt to. exclude all others from the exercise of a legitimate right, to prevent the improvement of the country, and appropriate to themselves that which did not belong to them. To sanction such conductj would be contrary to the soundest principlesuf morality,- and would aid the efforts of unfair practices. - •</p> <p>I am unable to find any thing in -the whole transaction, that would make the codicil in ihe will notice to Sirnonlon, that one-half of the tract in question, was owned by Lodge.. There is a difficulty in defining with any degree of precision the rules, which govern implied or constructive notice. No general rule can be laid tiovvn, equally applicable to every case, but it must be regulated in a great measure by the circumstances of'the particular case. The doctrine, however, generally adopted, is, that whatever .puts a party upon inquiry, amounts, in judgment’of law, to notice, provided the inquiry becomes a.duty, and would leadho the knowledge of the requisite fact by the exercise of ordinary diligence, and understanding. 4 Kent’s. Com. '172. In Heister-v, Fortner, 2 Binn. 40, it. has been hold, that the registry of a deed, defectively proved or acknowledged, is not constructive ■'notice to a.subsequent purchaser, although the registry be made in the proper county. There could not be a case affording a- much, stronger implication of actual notice, than a deed thus recorded. Still it was decided not to*amount to constructive notice. So also in 20 Johns. Hep. C59, a dejiosil of deeds and conveyances, pursuant to'an act passed “to the end that persons inclining to-have recourse thereto, might inspect the same,” was decided not to amount to legal notice, to subsequent purchasers.' See also h Binn;\%Q', Billj,úgtonv.. Welsh, In James v. Morey) 2 Gavien, ifrhas'.been. held, that the registen-ing a deed-of conveyance-, is'.not'notice tola-subsequent-purchaser, except in pases wher'e its .registry is: made necessary by statute- — • thus for-, example, j registering a sheriff is deed-would not'-be notice in that state., -jSo a-lsoin the same casé, it .was, decided, that the'recording an assignment of-a mortgage, is no notice to á mortgagor; so as to render payments' by him-'to-the mortgage-in’his own wrong — because, the recording ah assignment is not within any of the general registry, acts..’ ■ 2''Cowen, 246. It is not my.intention to enter h)tb an examination of the numerous cases that are to be found-in the books art the subject of notice. • Justice Duncan, in delivering the opinion of this court in Peebles v. Refilling, 8 Serg.; & Rawle, 4&6.,. Has-gone-fully-into1 the question, and.-pointed out the various-kihd-s-,-of. notice?.and the difference between them.■ He says,-“that the true,ground-in all. cases..for determining the question of notice, is,-that in itself it is a -spécies.'of "fráúd,'and^tákes away the bona.Jides of the’purchasef, and puts him in mala fide.35 See’also 2 Equity Cases, 6S2. r Wash. 4. ,</p> <p>■ It seems clear,,'that-there is nothing in the-case before us, that-can amount’fo notice," when-tested by the principles established in the cases just-cited.".--In the controversy,-'to such-V state of inextricable confusión, was. the-whole transaction reduced.hy-Ladgé and Planter, that no‘manj not even John'Sptricer, ’could sa'y'which'tract was legally appropriated*'' For' oh the ,-é 6-th- of.'January, 1785, a patent was-.granted to William Wilson, for-3'27Aacres,' the premises in question,; which had been; conveyed to him hy.a-.dee'd-polT from John ’Spencer. ■ .But in 1787, ''a re-surVey* was- Made by order of the. board of- property, at the instance of. William - Wilson, by which Spenp.eP.s- survey wds. removed to. No. 1," where ft had been originally laid ou'tj and .a patent, was-granted to >Wilson for that. The fact, tjrai-Spencer, himself, could not-tell the original situation of his survey, or which, tract had been.appropriated^ is-ample evi-de'nc’e-thafr.there-is nothing in the will of-Homier, which was then proved, that could'by-ofdinary-diligcnc’e ,an'd' understanding,-lead ■ to the discovery'of- the. lot .that ■ was designated, -or. intended to-be desigiiatech thereby1 There is nothing in'the.whole transaction, ‘‘that-takes .aiVay. tlié&ona Jidés oí Siih.onton, the- purchaser, and puts'him'm malafidje.”/ ■/ •'</p> <p>Are not bona.’fide purchasers for a Valuable consideration, without notice,..entitled to protection 'against secret trusts? and is not' Simonton such a purchaser?. The heirs.of Lodge certainly, are not. » such. • But if .they -are- to be considered; in the light of purchasers, for a valuable consideration — if both, plaintiffs and defendants have their - equities,;máy not,the equity of the one, be greater than the equity of the other? And is it not a familiar principle, one equal» ly consonant to common honesty and common sense, that he, who has the greater equity, must be preferred to him, who has the lesser. It cannot be pretended, that the heirs of Lodge have a greater equity than their father would have had, if living. What then was his equity? Tlie warrants were talcen out, and surveyed in the names of Hunter, by Lodge’s consent. He authorized Hunter to sell the land, or to dispose of any equity he had in it: and after a deduction, Lodge was to receive one half of the purchase money. This appears by the very evidence, which the plaintiff produces from Hunter’s will, to prove constructive notice. But did his lien continue on the land for his share of the purchase money? His suffering the warrants and surveys to remain in the name of Hunter, as the real owner of the land, with an understanding, that he should sell the same; and at the same time, rendering the appropriations uncertain and confused, was acting mala fide towards the proprietary, and persons desirous of making appropriations, according to the customs and usage of the land office. If Lodge did authorize Hunter to sell, would he have any more lien for the purchase money, than Hunter himself: and certainly Hunter had none; though he had a legal estate, which could only be divested by legal conveyances. Whereas, Lodge had, at most, only an equi - table one, which might be lost by abandonment, or relinquished by acts inconsistent with any assertion of an equitable title.</p> <p>Iu Lewis v. Madisons, 1 Munford, 303, it was decided that the rule that a purchaser is bound by notice, does not apply to a lien claimed under a written contract, so vague and indefinite as not to designate, with any certainty, the specific land in question. In this case, the description of the land, (if description it can be called,) contained in tlie will, is certainly too vague and indefinite to designate, with any certainty, the specific land in question, and therefore' cannot be notice to affect the defendant in any manner.</p> <p>Simonton has the legal title. Upon what principle can it be contended, that he holds one hal in trust, for the plaintiffs? He is not a trustee, by the express provision of either any written or unwritten contract. The plaintiff’s case is no( a resulting trust. If the defendant is a trustee for the plaintiff, for one half of the land, it must aspring from circumstances attending the transaction; as accident, mistake, or fraud, which of themselves, form actual ground of Chancery’s interference — inducing it to imply a trust, from what it ascertains to be the conscientious duty of a party: and thereupon, in accordance with its general principles, to compel the performance of that, which rational justice demands.” Jeremy’s Equi. Jur. 94. In this case, there is no allegation of accident, mistake, or fraud, and therefore; the plaintiffs hare no claim arising under these principles. I am clearly of opinion, that relief could only be granted on account of fraud; and that fraud, consisting of a purchase with notice of the trust, must be made out, by clear proof of what would amount to actual notice. It should not be a mere rumour or knowledge, but a notice susceptible of positive proof, or what is the same thing, a precise and definite recital in some of the deeds, under which the defendant deduces title, of the trust. The interest of the trustee, and the property subject to the trust, should be designated, with such certainty, as to be easily applied to the land, held or alleged to be held under it. I am opposed to extending the doctrine of constructive notice, particularly against a bona fide purchaser, for a valuable consideration. A clear case should be made out, and parol evidence received, with the greatest caution. In the case before us, the jury should have been so instructed. The evidence did not warrant the charge, that Simonton had constructive notice, through the will of Hunter, of the interest of Lodge’s heirs in the ¡and. The court were correct in saying, "that in the will, no particular tract is referred to,” and should have added, therefore, too vague and uncertain to be notice, to a purchaser of any tract. We are, therefore, of opinion that a new trial should be awarded.</p>

<p>Appeal from the Circuit Court of Mifflin county, held by Justice Huston.</p> <p>, This was an action of debt, brought by William Shaw against the Lewistown and Kishacoquillas Turnpike Company,</p> <p>The plaintiff filed the following statement:</p> <p>“The plaintiff’s demand, in this suit, is founded on the following instrument of writing, a copy of which is hereto annexed, and made part of this statement, and for work and labor for the Lew-istown and Kishacoquillas Turnpike Company, by Robert Gamble, in his life-time, and William Shaio, plaintiff, who survived Robert Gamble, in pursuance of the aforesaid instrument of writing, ‘Articles of agreement made and concluded this third day of June, in the year of our Lord one thousand eight hundred and fifteen, between the president, managers and company of the Leiois-toion and Kishacoquillas turnpike road of the one part, and William Shaw and Robert Gamble of the other part</p> <p>‘Wituesseth, that the said William Shaw and Robad Gamble, for, and in consideration, of the covenants hereafter mentioned, on the part of the said president, managers and company of the said road, do, by these presents, for themselves, their heirs, executors and administrators, covenant and agree, to, and with the said president, managers and company, their successors and assigns, that the said William Shaw and Robert Gamble, will, at or before the first day of September, one thousand eight hundred and eighteen, malee, and finish, in a complete, substantial and workmanlike manner, that part of said road, beginning at the court house in the borough of Lewistown, to Kelley’s run, on the tract or route laid down by the president and managers, cutting, moving out and opening said road, fifty feet wide, and by cutting the hills and filling up the low places, so that no part of said road shall rise more than an elevation of four degrees, and cut down all small knobs, rises or hillocks in said road — and twenty-one feet in width in said road to be paved or bedded with stone, to the thickness of twelve inches in the middle, and gradually diminishing in thickness to nine at the sides — and the stones on the paved part, shall be broken throughout, so that all the particles thereof will pass through a ring of three inches in diameter The bed of the paved part of the road, previous to the stones-being put on, shall be prepared as follows: the sides shall be cut nine inches below the surface, so as to form a shoulder to bed the stones against, and the earth removed therefrom, shall be thrown into the centre of said road, so as to form a convexity, so that the middle of the road may be from six to nine inches higher than the sides — on the.side or summer road, all trees and stumps or large stones to- be removed or dug out, so as to bring them to an even surface, and on or near to a level with the paved part of the road, but not in any one instance to be lower or more than six inches higher; one summer road to be made on each side of the paved part of said road, from six to eight feet wide; and at all small streams where the water accumulates in wet weather and which will require bridges, there is to be paved a gutter to extend across the whole r.oad fifty feet, sufficient to carry off the water, and to be shaped so as to prevent any sudden shock to carriages crossing the same — and the said William Shaw and Robert Gamble, are to procure the materials for making said road at their own expense, and to do as little injury to the lands, woods and property of the adjoining inhabitants, in digging up, grubbing or hauling stone or other materials for making the road as possible, and when the pavement of stone is completed, as aforesaid, to clay or sand over the same, so as to render the travelling convenient and commodious. And the said president, managers and company of the said road,'covenant and agree to, and with the said William Shaw and Robert Gamble, their heirs, executors and administrators, that they will, when any section of the road paved and made in the manner above stated is completed, being forty perches or more, in any one place, to take the same off their hands — and furthermore, the said president, managers and company, agree to pay to the said William Shaio and Robert Gamble for, and in consideration, that they shall make the road, as aforesaid, complete, and in sc workmanlike manner, as before described, and at, or within the term above stated and agreed upon, eleven dollars per perch, from the court house and thirteen dollars and fifty cents per perch for the remainder of the road between the end of the first mile and Kelley’s run, to be paid in the following manner, to wit: when they shall make it appear, that the work has progressed to the amount of one thousand dollars, they shall afterwards be paid as often as they shall call for money, so as to keep the work, at all times, one thousand dollars in advance of the money received, until the whole road is completed and then they shall be paid the balance — it is to be understood, that the president and managers are to pay the price of materials to the owners, and they are to be brought to the ground by the contractors. ”</p> <p>Then followed a statement of the work, labor and services'done and performed by the plaintiff, amounting to $9473 50, and the usual certificate, that that sum was due.</p> <p>The Turnpike Company made defence on two grounds — first, payments made to plaintiff while the work progressed, and second, that tlje contract was entire, and the plaintiff could not- recover at all, unless he would set out, in his declaration, and prove that he had performed the contract on his part, before suit brought.</p> <p>The evidence established the fact, that the contract had not been complied with by the plaintiff, in these particulars, — that the road had not been opened fifty feet wide, nor had the summer roads been made at all in many places. The plaintiff answered to these objections, that inasmuch as when the road was stoned twenty-one-feet wide, the turnpike company took possession of it, erected gates upon it, and took toll from persons travelling upon it; he therefore contended that he was entitled to recover from the defendants the actual value of his labor, bestowed upon the road, according to the terms of the contract.</p> <p>The jury found a verdict for the plaintiff, for $1730 91, and a-motion for a new trial being overruled, for the purpose of having' the question argued and settled in this court the-defendant appealed.</p> <p>The act of incorporation only required that the stone road should' be made in order to entitle the company to receive toll; but it was perfectly competent for them to contract for the making of side-roads, in addition to the stone road; by which its usefulness would be increased; and the company might legally take toll from travel-lers, when the stone road alone was made. Certainly this would not exonerate the contractor from his engagement to make the side roads, and otherwise complete his contract; nor could it be construed into a waiver by the company, of the necessity on the part of the contractor, to make the road as he engaged to do. The plaintiff •did not allege in his declaration, nor attempt to prove, that he had performed his contract; nor did he allege a waiver,-or attempt to prove the assent of the company, in the only way known to the law in which they can assent, to a waiver of the terms of the contract. Cited Pedan v. Hopkins, 13 Serg. & Raiole, 47. Cunningham v. Morrell, 10 Johns.Rep. 203. McMillen v. Hander lip, 12 Johns. Rep. 165. Thorpe v. White, 13 Johns. Rep. 53. Faxon v.Mansfield, 2 Mass. 147. Lancashire v. Killingworth, 3 Salk. 342. 2 Saund. 352 note 3.</p> <p>- There are certain actions on contract in which a compliance'to the letter must be proved; others when there may be a recover without a literal compliance. When the main object of the contract is fulfilled, but secondary objects not completed, there may be a recovery, subject to the power of the jury to deduct from the amount a rateable proportion. The main object here was to make the stone road, so as to enable the company to take toll: and when this was done, the company took possession of the road and used it for all the purposes originally intended. This was virtually a waiver by the company of the necessity of further completion by the contractor, Here the company received the benefit of the workman’s labor, which amounts ipso facto, to a waiver, and makes the company liable to the payment of a pro rata sum. Heck. v. Shener, 4 Serg. & Rawle, 249. Decamp v. Fay, 5 Serg. & Rawle, 323. Stoddart v. Smith, 5 Bin. 355. Ohermire v. Nichols, 6 Bin. 164. 1 Saund. 320, n. 1</p> <p>The defendants are now in possession of, and enjoying the fruits of the plaintiff’s labor, and it would be against conscience that they should not pay for it. This court will not grant a new trial, unless injustice has been done.</p> <p>In all the cases read, where the specific performance of a contract was enforced, although the party seeking such enforcement, had not himself complied, are where it was not in the power of such party to perform. Not so here. If a party may perform a part of his contract, and recover compensation for the part performed, he may perform that part which is most acceptable to him, and recover on a quantum meruit; thereby destroying the contract,and recover upon terms never imposed.</p>

<p>A justice of the peace has jurisdiction to sustain an action upon an insolvent bond.</p>

<p>Writ of error to Huntingdon county.</p> <p>In this action, the President, Managers and Company of the Huntingdón, Cambria and Indiana Turnpike Road were plain* tiffs, and Jisa Brown and Enoch Jones, trading under the firm of Brown and Jones, were defendants.</p> <p>The following are the facts of the case: By an act of assembly of the 20th of March, 1810, the plaintiffs were incorporated and invested with all the power and authority usually incident to such a corporation; such as the right to erect gates, take toll, &c. The road wás made by the company, and toll-gates erected upon it.</p> <p>Br 'oWn and Jones, who were contractors on the Pennsylvania Canal, in furnishing materials for their works, used three miles of the Turnpike road, which Was situate between two toll-gates. After they had thus used the road, the treasurer of the company demanded from them a reasonable compensation therefor, which they refused to pay, and for which this suit Was instituted.</p> <p>The court below (Burnside president-,) was of opinion that the plaintiffs were not entitled to recover; and therefore rendered a judgment for the defendants.</p> <p>The demand before suit brought, was all that was necessary to entitle the plaintiffs to recover. The act provides that the company may erect toll-gates; and this is a matter of convenience; but it is not compulsory upon them so to do; it is not essential to. their rightto recover for the Use and occupation of their road.</p> <p>Insisted upon the inconvenience that would result-from the existence of a right in the company to sue every one who would travel upon the road, however short the distance. Whenever the rights of individuals or the public are restrained or affected by law, that law must be construed strictly; there being, therefore, no right of action given by the act of incorporation, it does not exist. Cowp. Rep., 26. Jllney v. Harris, 5 Johns. Rep., 175. Head et al v. Providence Insu. Co., 2 Cranch, 127.</p>

<p>Hn an action brought to recover the amount of a judgment rendered by a justice of the peace in another county, a certified transcript of such judgment is prima facie evidence, upon which the plaintiff may recover.</p>

Wbjt of error to the Special Court of Common Pleas of Centre county. (Reed president.) This was an action brought by the Susquehanna and Phillips-burg Turnpike Road Company against William Irvin, to recover from him certain dividends of his subscription to the capital stock of said company.

EitBoit to the Common Pleas of Mifflin county. obtained a judgment before a justice of the peace against Mary Marie, from which she appealed and entered into a recognizance in the usual form with Griffith Thomas, the plaintiff in error as her surety. On the appeal, Stewart succeeded in affirming the judgment of the justice.

EehoR to the Common Pleas of Mifflin county. In the court below, this was an issue directed to try the right to money in the hands of the sheriff, which was made out of the sale of the real estate of Henry Comfort. Jacob Comfort, being indebted'by judgment, died, and his real estate descended to his children, of whom Henry' Comfort was one.

<p>ERROR to the Common Pleas of Centre county.</p> <p>This was an action of replevin, in which Nathan Harvey and Co. were -plaintiffs, and John M. Myers was defendant. •</p> <p>The material facts which gave rise to the question of law in this case, were these. John M. Myers being indebted, his personal property consisting of horses, wagon, ploughs, &c. and grain growing in the ground, was levied upon a fi. fu. in favor of Joseph TV. Williamson, and was on the 10th June, 1825, sold by the sheriff, and purchased by Nathan Harvey and Co. the plaintiffs, under these circumstances. Myers requested Harvey and Co. to attend the sheriff’s sale and buy the property, saying at the same time, that if he got liberty to cut the grain, the proceeds of the sale of it would pay the amount for which the whole property would sell. A member of the firm attended, and bought in all the property: he then executed a written lease of it to Myers, and left it in his possession. He also took Myers’ note for the amount, with the understanding, that it should be given to Fidler, the father-in-law of Myers, if he would undertake to pay Harvey and Co. the money. Fidler refused to pay the money. The following harvest Harvey and Co.paid the hands for cutting the crop: they received the grain and gave Myers credit for it. Myers had occasion for some small advances, which he received from the store of Harvey and Co. Upon settlement in October, 1826,- Myers was still in debt to Har-vcyand Co. who considered the property as theirs, until their debt was paid.</p> <p>Previously to this transaction Myers was also indebted to John McGhee, who obtained a judgment against him, and issued a fi.fa. to November term, 1S26, upon which the sheriff levied the same property in the possession of Myers, which had been purchased by Harvey and Co. On the 9th November, 1836, the property was again sold and purchased by McGhee. And the question in this case was, whether Harvey and Co. or McGhee were entitled to the property. ~ ;</p> <p>The court below, (Burnside president) was of opinion, that under all the circumstances, the plaintiffs were entitled to recover, and so instructed the jury: and to the following points put by defendant’s counsel thus answered:</p> <p>1. That if the jury find the facts in this case to be, that the property in dispute was left in the hands of Myers, for seventeen months after the date of the sheriff’s sale; that it is per se evidence of fraud as respects a judgment-creditor, and in point of law, the plaintiffs cannot recover.</p> <p>' To the 1st point the court answered; that the leaving of the property after a fair purchase at sheriff’s sale for seventeen months, in the hands of the debtor is not per se evidence of fraud, as respects the judgment creditor, whose judgment was prior to that sale.</p> <p>2. That the taking of a judgment note on settlement, from Myers, for the balance due to Harvey and Co. and retaining that note, in their possession up to the trial of the cause, was in point of law, an extinguishment of the lease, so far as it respected creditors; and left the property subject to execution creditors in the hands of John M. Myers.</p> <p>To the 2nd point the court answered: This point is fully answered in the charge. We said under the evidence that if the jury believed, that the taking of the judgment-note was as stated by the witness, the taking of it, and the retaining it in possession up to the trial of the cause, is not in point of law, an extinguishment of the lease, so far as respected McGhee, and the property was not legally subject to his execution.</p> <p>3. 'That if the jury find that Harvey and Co. blended the sale and lease of John M. Myers’ property with other dealings and transáctions, and received payments and made a settlement as of one general account, and took a note for the balance, it is an extin-guishment of the lease, and the plaintiffs would not be entitled to recover.</p> <p>To the Sd point the court answered: This point is already answered; the court do not think that the blending in this case as proved, and the facts as submitted to the jury, with other transactions, nor the payments as proved, nor the settlement made, nor the taking of the note under the facts disclosed for the balance, is an extinguishment of the lease, nor will we say to you that the plaintiffs are not entitled to recover.</p> <p>4. That the plaintiffs’ leasing the property to Myers, by which they were to receive a compensation for the use of it, takes this case out of the exception, that a purchaser at sheriff’s sale may, out of humanity, leave the property in the hands of the former owner;, and is of itself a fraud in law, and will bar the plaintiffs’ recovery.</p> <p>The 4th point is already answered: The court do not think that the compensation for the use of the property, takes this case out of the exception, that a purchaser at sheriff’s sale, may out of humanity, leave the property in the hands of the former owner, and it is not itself a fraud,, and will not bar the plaintiffs’ recovery.</p> <p>5. If the jury believe that Harvey and Co. from the first of June, 1825, until 16th October, IS26, received from Myers, the amount of @170, the plaintiffs are not entitled to recover..</p> <p>To the 5th point the court answered: That if Harvey and Co. have received their debt, tire plaintiffs cannot recover. They received the grain — they credited it at the net proceeds without regard to the sale — that credit did not amount as proved to @170, of which the jury are the judges. This court do not think that the advances to cut the harvest, will destroy the plaintiffs lien on the other goods, under, the facts disclosed and proved in this case. The court have already given an opinion as to the @13 and the @20. If the jury are of opinion that the plaintiffs have received their debt, except these two items, the plaintiffs are not entitled torecover. Y ou have heard M^Gormicle’s evidence, that after the sale of all the' property, and applying it to the purchase of the property, and the advances to cut the grain, they will still lose between 40 and 50 dollars by this transaction.</p> <p>■ The errors assigned were to the answers of the court.</p> <p>Cited Clow v. Woods, 5 Serg. & Raiole, 273. Cunningham v„ Neville, 10 Serg. & Raiole, 201. Babb v. Clemson, lb. 419. Cameron v. Montgomery, 13 Serg. & Raiole, 12S. Marlin v. Mathiot, 14 Serg. & Raiole, 214.</p>

J. Samuel Kendall died intestate, and his real estate, by virtue of an order of the Orphans’ Court, was sold by his administrator, John Kendall, to Joseph Wallis, who purchased for James Lee. Bonds were given'by James Lee and John Shriner his security to John Kendall, for the purchase money; These bonds were sued, and judgment obtained thereon for $679 21, in April, 1820.

This cause was on the list for trial at a Circuit Court held in April, 1830, when the plaintiff moved the court to continue the cause for reasons which were set out in an affidavit, but which the court decided were insufficient; whereupon the plaintiff took a non-suit. At a Circuit Court held in April, 1831, the plaintiff moved the court to take off the non-suit, and read additional affidavits in support of the motion.

<p>Euitoit to the Common Pleas of Northumberland county.</p> <p>This action was originally brought by Peter Gutharf, administrator of John Epley, deceased, against Philip Moore and Mary his wife, formerly Mary Epley; a narr. was filed for goods, wares and merchandize sold and delivered-by the plaintiff to the said Mary Epley whilst sole; and also for money had and received by the said Mary whilst sole, for the use of the said plaintiff’s administrator. In fact, the claim was for goods sold to Mary Epley at the vendue of the personal estate of John Epley, deceased. Issues were joined upon the pleas of non assumpsit infra sex annos and payment.</p> <p>By consent of the parties -the cause was submitted to referees under the act of 1705; who made this report, “We find for the plaintiff $330 40, the amount charged on the vendue list and $300 41, interest upon the same, amounting to $630 81.” This was signed by the referees; and immediately beneath their signatures, was subjoined this note: “In the above case the demand was barred by the statute of limitations, but referees considered it, revived by a promise of defendant and her husband (now deceased) in his life-time.”</p> <p>The death of Philip Moore, before final judgment, was suggested; and the intermarriage of Mary his widow with Jacob Kline after final judgment.</p> <p>In the court below, exceptions were filed to the report, which were over-ruled. The defendants then sued out this writ of error, and filed the following exceptions:</p> <p>1. The declaration joins causes of action which could not be joined; and states promises which will not support the action.</p> <p>S. The action for goods, wares and merchandize sold and delivered by the plaintiff, should have been brought by Peter Guthart, in his personal character, and not as administrator.</p> <p>The promise of defendant Mary Epley, while a feme-covert could not take the case out of the statute of limitations, and enable the plaintiff to recover on the original cause of action.</p> <p>Argued that the promise of a married woman, will not in law operate to take a case out of the statute of limitations, and cited 1 Wils. Bac. M. 497, 499. Clancass’ Husband and Wife, 21. 3 Pr. Wms. 237. 1 Chit. Plea. AH. Lloyd v. Lee, l Strange, 94. Grasser and Wife v. Echart, 1 Bin. 575. The new promise is the cause of action, if it can be sustained at all, when once barred, and the old debt is the consideration. The case of Fields’ estate, 2 Rawle, 351. Hudson v. Carey, 11 Serg. & Rawle, 10. Ban-forth v. Culver, 11 Johns. 146. Tillinghast, 190.</p> <p>The note subjoined to the report of the referees, formed no part of the award; it was merely the opinion of the referees about a particular part of the evidence. The award being good upon its face, why the referees found in a particular way, cannd,t be enqui-red. into, or taken advantage of in this court, Harher v. Elliott, 7 Serg. & Raiole, 284. Bellas v. Levy, 2 Rawle, 21.</p> <p>In an ordinary case, a promise of husband and wife, would not bind the wife; but in this case the debt was that of the wife; and the statute of limitations only taking away the remedy and not the right, the promise of the wife will revive it.</p>

<p>Appeal from the Circuit Court of Northumberland County, held by Gibson, C. J.</p> <p>This was an action of ejectment in which the heirs of John Hub-ley were plaintiffs and Henry Keyset’ and others were defendants;</p> <p>The plaintiffs gave in evidence a warrant to John Hubley of the’ ¿1st March, 1774, for 300 acres of land, lying eastward of Christian Wertz, “bounded North by a large Ridgé, South by the foot of Mahanoy mountain, including a quantity of land mostly timbered with chestnut, and including a spring, one of the heads of the west branch of-little Shamoken Creek.” Also awarrant of the same date to Christian Wertz “for 300 acres of land on the heads-of the west branch of little Shamoken, near and above a survey made for one Knable, adjoining the foot of Mahanoy Mountain.” On these two warrants surveys were made on the 15th July, 1774, and returned for patenting 12th March, 1785; on the Hubley warrant 315a acres were surveyed, and on the Wertz warrant 346'i acres. A patent issued to John Hubley, 17th March, 1785. Here the plaintiffs rested.</p> <p>The defendant gave in evidence, a warrant to James Brown, dated 12th April, 1774, for 300 acres of land, “about eight or nine miles from Sunbiiry, to include a spring and adjoin the foot of big Mahanoy hill; the water of said spring runs into the Susquehanna in Augusta township” &c. Also a warrant of the same date to Robert Atkinson for 300 acres “adjoining lands applied for by James Brown, and to include Bentz’ hunting cabin, and to include the path that leads from Fort Augusta to Tulpehocken, in Augusta township.” Surveys upon these warrants, dated 15th July, 1774, by Charles Stewart, on the first of 346a acres, and on the second of 321í acres, were given in evidence; upon the latter there was this indorsement: “May 8th, 1786, brought to the Surveyor General’s Office by Reuben Haines. ” A deed from Robert Atkinson to Reuben Haines, dated 3d Aug. 1785, was then read. Under this title the defendants claimed. They also offered in evidence a deed dated 13th Aug. 1816, from Henry Vanderslice, treasurer, to those under whom the defendants claimed, which recited a sale for county taxes from 1806 to 1813, and for road tax from 1806 to 1812 inclusive. This was objected to. They then offered the ¡ ‘tax book” from the commissioners’ office; and to lay the ground for its admission, John G. Youngman, a clerk in the office, was called, who said: “This book was in the office, and was called the unseated land book: it was in the office when I was there: it is the original book in which the taxes for these years were entered. There might be another book of the sort for, Shamoken, but none for Augusta township. In Augusta the Commissioners taxed the lands without assessment: — we could not get the assessors to do it, as they could not find the land. I came into the office in 1818. The practice was the same before I came in.” The defendants also, with the deed, offered in evidence a receipt for having paid the tax for which the land was sold, and for having given his bond for the residue of the purchase money. The objection was over-ruled and the evidence given. Samuel Bloom’s evidence, which had been given before arbitrators at a former trial of the cause, was then read, the substance of which was, that the warrants under which the plaintiffs and defendants respectively claimed, were equally descriptive of the land in dispute; — that the land was seated in 1808, and has been so ever since; — that he was assessor of the township in which the land in dispute is, for the years 1806-7, and valued the tract in the name of John Hubley, as a settled tract; there having been some labour expended upon it preparatory tó a residence:— That he gave notice to the person who had done the work, of th.e valuation and rate of tax, previous to the appeal; when he was informed by him that he would not proceed with his improvement, as he understood there was an adverse title: — That he informed the Commissioners of this, and the tract was transferred from the duplicate of settled lands, to the unseated list. The clerk in the pro-thonotary’s office stated that he had made search in his office, and could not find that any bond to the commissioners had ever been filed before 1830, and that he could not find any bond applicable to this sale. The defendants had been in possession for more than five years before this suit was brought.</p> <p>Upon the first point, his Honor the Chief Justice charged the jury: That both the warrant of the plaintiffs, and that of the defendants, describe the land with reasonable certainty; and theplantifPs warrant being the elder, was entitled to the prior survey. But the right to priority might be lost by negligence. There was but one survey made; and the first question is for whom was it inade? If Reuben Haines procured Charles Stewart or his assistant to make it, he was entitled to the benefit of it; and Hubley, who in that case took no step to perfect his title, would be postponed. This is a question of fact for your determination. If Haines had the survey made in fact, Wm. Gray, who succeeded to the office of Deputy Surveyor, had no right to return the survey for Hubley, and a patent founded on such fraudulent return would give no right, The presumption is, that every officer does his duty; and ( as it would have been a breach of duty in Charles Stewart to return the survey on the younger warrant, if the older had been in his hands, the presumption is that it was not. The evidence of the sui'vey having been made for Haines, is the fact that the survey returned for Haines in 1774, on the Brown warrant, calls for this tract as Haines’ by the name of Jttleinson. The testimony also of Capt. Boyd seems to shew the fact to have been so, by the concessions of Wm. Gray, not contradicted by Hubley.</p> <p>As to the second point, he instructed the jury that the trea-, surer’s deed, under the evidence in the cause, vested a good title in the defendants. The jury found a verdict accordingly.</p> <p>A motion for a new trial having been over-ruled, the plaintiffs appealed.</p> <p>The evidence of who procured the return to be made upon the respective warrants, was somewhat uncertain; the weight of evidence was that it was returned upon o.ur warrant. Whenever there are conflicting rights in the hands of the Deputy Surveyor, they must be executed according to their priority. Gray v. McCreary, 4Yeates494. Duncan v. Curry, 3 Bin. 14. Maus v. Montgomery, 15 Serg. & Raiole, 224. The defendant having entered no caveat against the return of our survey, but permitted a patent to issue without objection; and never having perfected his own title by a patent, it should now be postponed to ours. 2 Smith’s Laxos, 255.</p> <p>An assessment is essential to the validity of a sale for taxes; for the act of assembly which requires that the assessor shall be an inhabitant of the township, and shall be sworn to perform the duties of his office, is a perfect nullity, if the commissioners may make the assessment in their office, as they have done in this case. It is proved conclusively by the witness called by the defendants themselves, and by the tax books, that the unseated lands were never assessed. But the treasurer’s deed recited a sale for taxes for years, when it is admitted that there was a settlement and residence on the land; the taxes for seated and unseated lands cannot be blended so as to authorize a sale for the whole. The tax of seated land is not a charge upon it. Burd v. Ramsey, 9 Serg. & Rawle, 109,</p> <p>The proof was uncontradicted, that no refunding bond, as is required by the act of assembly, was given and filed by the pur» chaser.</p> <p>When the fact is conceded, that our warrants were equally descriptive of the land in dispute, with those of the plaintiffs; and the well settled principle of law is conceded, that priority may be lost by negligence, no difficulty can arise in the determination of the first point of this case. The law is admitted, and the fact was fairly left to the jury.</p> <p>Whatever may have been the practice, with regard to the assessment of unseated land generally, in Northumberland County, as to this land, the proof is conclusive, that it was assessed by the-assessor of the township for the years 1806-7. The 4th section of the act of 13th March, 1815, is a conclusive bar to the plaintiff’s recovery. It is not pretended that the plaintiffs did within two years after the sale for taxes, tender the amount of the tax for 1806-7, (when they admit the land was unseated,) and the costs: nor did they pretend to shew, that the tax had been paid previously to the sale, “but in no other case,” is the language of the act of assembly, ft and.on no other plea, shall an action be sustained.” And in this, position we are expressly sustained by the decision of this court in Stewart v, Shoenfelt, 13 Serg. & Rawle, 360.</p>

<p>Appeal from the Circuit Court of Northumberland county; held by Chief 'Justice Gibson.</p> <p>This was an action of ejectment, in which Thomas Bradford was plaintiff, and Henry jDornseif and others were defendants; ih which all the points , arose which were discussed in the preceding case of Hubley v. K&yser, and one moré; — which was, whether the 3d Section of the act of 3d April, 1804, was not an effectual fear to the plaintiff’s recovery: — the defendant having been in pos-sessión of the land, under a sale for taxes made to him in Í806, for inore than five years after the sale and before this suit was brought. The Circuit Court decided that it was.</p>

<p>A covenanted to sell and convey a tract of land to-B, ‘.‘by a good warranty deed in fee simple,” in consideration of $3270. At'the time the agreement was entered into, A had but a life estate in the land; subsequently he conveyed by deed, with, general warranty, all his interest in the same land to his son, in consideration of" $2451. His son and other children in whom was vested the fee, then conveyed to B. Held: that upon the tender of such title to B the vendee, A was entitled to recover.</p> <p>An assignee or grantee of land, may maintain an action of covenant against any of' the prior grantors or assignors, who have entered into a general warranty of the title; and this whether he has a general warranty or not to himself.</p> <p>A covenant to convey «‘by a good warranty deed ip fee simple,” implies an obligation on the part of the vendor, to procure a patent for the land. But such implication is so qualified by the clause, “the said vendor is to be at no expense for obtaining the patents, or any other title, voucher or document which the said ven-dee will think proper to get for his own personal satisfaction or security” as to relieve the vendor from such obligation.</p>

<p>MANDAMUS.</p> <p>On motion of E. Greenough, attorney for the relators, rule osi John Mitchell, James Ciarle and James S'. Stevenson, Esqrs., to appear before the Supreme Court at Sunbury, on the 2d Monday of June next, at 10 o’clock, A. M., and show cause why a mandamus should not be granted to compel them to pay the relators the amount awarded to them respectively on the reports of viewers in TJnion county, for damages occasioned by the Pennsylvania Canal.</p> <p>This rule was granted at June term, 1830, upon the following affidavit:</p> <p> Northumberland County, set: </p> <p>John Snyder, on his solemn oath saith, that at a Court of Quarter Sessions of Union county, of September Term, 1829, the report of viewers appointed to assess damages sustained by deponent by reason of the Pennsylvania Canal obstructing his mills, &c., was approved by the said court, and confirmed with the consent of -the agent and attorney of the Commonwealth; "which damages were assessed at the sum of $6S3 33. Deponent procured a certified copy of the same, and in the month of December or January last, delivered the same to John Ryan at Harrisburg, a superintendant of the Susquehanna division, and demanded payment. The said Ryan went with deponent to the canal office, and delivered said record to John Mitchell, an acting canal commissioner on the Susquehanna division, and said deponent then demanded his money; the-said Mitchell said he would lay the matter before the Board, and inform deponent of the result, which he did, by writing^ that his claim would be contested in the Supreme Court. Deponent further says, that on the 2d day of July instant, he exhibited to John Ryan, the present superintendent of said division, under the new board of canal commissioners, the record of said assessment of damages, and demanded payment, which was refused.</p> <p>Now June term, 1831, the respondents showed for cause, by their return, that they had no power to appropriate the public funds in their hands to the payment of these demands.</p> <p>Cited the act of 9th April, 1827, sec. 8, Pam. Laws of 1826-7 p. 197, which provides the mode by which damages shall be assessed; and that they shall be paid by the acting canal commissioner: •and the act of 6th April, 1830, Pam. Laws, 218, that the powers :and duties of the commissioners shall be the same as those of the acting canal commissioner under the act of 9th April, 1S27.</p>

<p>A release in consideration of present embarrassment,is, necessarily, on an implied con-ditionin morals, that advantage be not taken of it, after the embarrassment has ceased. That which has been conceded to a debtor's necessities, may be justly and honestly retracted on the principle of failure of consideration, when he no longer has necessities to be relieved. _ All that is wanting to that end, is a legal means, which the creditor may consoionably yse when it is put into his hands by the debtor himself: such as a subsequent promise to pay.</p> <p>A. having released a debt of the estate of which he was executor; subsequently settled his administration account in the Orphans' Court, as did also B his co-executor. In consideration of some arrangement II charged himself with the debt thus released by A and the accounts were confirmed. Held: that the confirmation of the accounts by the Orphans’ Court was a conclusive discharge of A from all liability to pay the debt released by him, and that there did not remain such a moral obligation on his part, as would be a sufficient consideration to support a subsequent promise to pay it. Such promise was without consideration, and. there could, therefore, be no recovery upon it.</p>

<p>Ah agent appointed to collect money, shall not buy a note of his principal at a discount, and retain the whole amo.unt of it out of the pioney Collected; but shall only retain the amount which he gave for the note. An agent must deal fairly with his principal.</p> <p>If he who puts a note into the hands of an agent for collection, is but an age.nt hijn- ' self; he who collects the money cannot retain at all, if he is aware of the circumstances; he who is ultimately entitled to the money, may revoke the power of him" who was appointed to receive the money at any time, although the evidence of the debt to be collected, was a note to his agent.</p>

<p>A guaranty of title, executed and delivered by a vendor to a vendee, is not .merged in a subsequent deed of conveyance, which contains only a special warranty.</p>

<p>¡Neither the act of Assembly of 1809, nor that of 1815, authorises the appointment of reviewers, with power to vacate part of a road, which had never been opened and to lay out another in its stead.</p>

Writ of error to the Common Pleas of Centre county. This was an action of debt upon three single bills, due 1st August, 1820-’l and ’2, brought by Harman Fagan, for theuse of George Wilson against Joseph Haggerty.

<p>’J’be act of Assembly of the 2Sth ¡March, 1814, directs the Pay-master to keep an account of moneys received and paid by him, and to pay over any balance which may remain in his hands, to such personas the Brigade Inspector shall direct: Held, that the Brigade inspector may, himself, sustain an action for the balance against the Pay-master, and the book of accounts kept by him, is evidence of such balance.</p>