Volume 2 — Rawle's Pennsylvania Reports

<p>IN ERROR.</p> <p>The docket of a justice of the peace, obtained from his office during his absence from the county, and proved to be in his hand-writing, is evidence, although no Subptena has been taken out to procure his attendance.</p>

. Replevin by John G. Fry against John Jones and Jim,os Straw, constable of Augusta township.

Writ of error to the Court of Common Pleas of Wayne county. The record, which was very Voluminous, presented ,in'substance the following case: . . Before the revolution, the than proprietaries, by warrant and survey, had appropriated, as part of their proprietary tenths, a tract of land, containing two thousand two hundred and twenty-two acres, on the river Delaware, including the mouth of Equinunk creek, and called and known by the name of the Equinunk manor.

Robert Patton had instituted proceedings before William Nesbit, Esq., a justice of the peace of Northumberland county, .under the act of assembly of the 13th of dtpril, 1807, to recover damages for an injury asserted to have been done to his premises by stray cattle. The proceedings before the justice were conceived by the defendant, Henry Frick, to be erroneous, and he took out a Certiorari, to remove them to this court.

This was an amicable action on the case, entered in the Court of Common Pleas of Northumberland county, for the purpose of settling an account between Daniel Levy, Esq., the plaintiff below, and Hugh Bellas, Esq., the defendant.below.

' Error to the Court of Common Pleas' of Northumberland county. • In the court below, Daniel Lebo brought an action of debt on a bond given by John Cummings and Isaac Wertz, in the sum of four hundred dollars, and in the declaration set forth, that the condition of the hond was, that if John Cummings, who Was then under arrest under a Capias ad Satisfaciendum, at the suit of the said Daniel, should not be and appear at the next Court of Common Pleas for Northumberland…

<p>IN ERROR.</p> <p>A sealed bill, given by a party in the custody of ¿ constable, for the purpose of settling a proceeding against him on a charge of killing some of his neighbour’s cattle, is good, if no fraud or misrepresentation have been used. •</p> <p>If the bill express, that it is to be paid at a given time, if the obligor “ cannot make it appear, that no person else committed the trespass,” it does not throw the burden of proof on the obligee. ,</p>

<p>Error to the Court of Common Pleas of Lycoming county.</p> <p>The case was argued by Armstrong and Campbell, for the overseers of the poor of Point township.</p>

<p>Appeal from the decision of Smith, J., at a Circuit Court held at Williamsport, Lycoming county, Jipril 25th, 1829.</p> <p>■John Sloan brought, a writ of partition against Joseph Hanse, with notice to the terre-tena.nts. The defendant pleaded non tenent insimul. - ■</p> <p>The following case was made for the opinion of the court: — “It is hereby agreed, that the will of George Sloan, deceased, is a part of the case: [The will,- so far as relates to the present controversy, was in these words:- — ' I give, devise, and bequeath unto my two cousins, Richard Hanse, and Joseph Hanse, of West Whiteland township, Chester county, all my estate, both real and personal, to be equally divided between them, or to their heirs.’] That Richard Hanse, one of the devisees therein named, was dead at the making of the will; having died -without issue, unrnarried, leaving brothers and sisters: That the death of the said Richard Hanse was unknown to-the testator at the making of the will: That John Sloan, the plaintiff in the. cause,’is the only-brother of the said George' Sloan, deceased, who died unmarried, without issue and without any sisters. — If the court'should be of opinion, that the devise to Richard Hanse is lapsed, judgment to be entered for the plaintiff; if of a contrary opinion, the judgment to be entered for. the defendant-,” - ‘</p> <p>His Honour gave judgment for the’plaintiff, and the defendant appealed from his decision.</p>

<p>IN ERROR.</p> <p>Testator directed his executors to purchase a tract of land, to be conveyed to them, in trust for his son, wh ■ was to.have the rents, issues, and profits thereof, but the same was not to be liable to any debts contracted, or which might be contracted by his said son, at whose death, the land was to vest in the heirs of his body; and, if he should die without heirs of his body, then to vest in the right hejjs of the testator. Held, that the son had not such an interest in the land as could be taken in execution, and sold for his debts.</p>

<p>APPEAL.</p> <p>An appeal to the Supreme Court, under the act of assembly of the 16th of April, 1827, relative to the distribution of money arising from sheriffs’ and coroners’ sales, should be in the name of the party, or parties aggrieved; and, the recognisance should be taken, in such sum as the Court of Common Pleas may deem necessary, to the commonwealth, or some individual for the use of the parties interested;</p> <p>A written acknowledgment, of record, by the defendant, that a judgment is.in full force, is as effectual to keep it alive, as a Scire Facias.</p> <p>For the purpose of keeping a judgment alive by execution, it is immaterial . whether the execution be issued before or after a year and a day from the entry of the judgment.</p> <p>A writ of restitution on the reversal of an erroneous judgment, creates a lien on goods from the time it goes into the sheriff’s hands, and on lands, from the time of the levy.</p>

<p>IN ERROR.</p> <p>a county treasurer’s account, settled, under the provisions of the act of assernbly of the 3’0th of March, 1791, may be altered by the auditors, at any tinie before it is returned to the Court of Common Pleas.</p> <p>A treasurer of a county is not entitled to compensation for travelling out of the county to collect taxes on unseated lands.</p> <p>If the auditors proceed to settle the account without giving notice to the treasurer, and their report be filed,- no appeal entered, and an execution issued, the court, on application; will set the report aside; but, if the treasurer enter an appeal, and the whole matter is taken up anew in the court, the defect is cured. - . . '</p>

Ejectment for three hundred acres of land or thereabouts, bounded by lands late of Charles Hall, and others.

<p>IN ERROR.</p> <p>It is a good cause of principal challenge to a juror, that he has formerly acted as an arbitrator in thé same cause.</p> <p>In an action of trespass for the mesne profits, the title of the plaintiff, who has recovered in ejectment, cannot be disputed.</p>

<p>On the return of a writ-of error to the Court of Common Pleas of Lycoming county, it appeared that William. Wood brought an action of indebitatus assumpsit for money- had and received against Arthur Davidson and Thomas Wood, administrators pendente lite, of Dr. Thomas Wood. The case, notwithstanding-the form of the declaration, was treated as an action for a legacy, and no refunding bond having been tendered or filed before the action was brought, the court below, on the trial, ruled that'“the suit could not be sustained without the plaintiff’s tendering or -filing a refunding bond, as the suit is brought, for a distributive share of the estate of James Wood, deceased.” . Verdict for the defendant.</p>

Debt on á single bill, which came before’ the court below, on an appeal from'the judgment of a justice of the peace. • On the trial, a verdict was given in favour of the plaintiff, but for no specific sum. It will be seen, by reference to the opinion of this court, that the facts came up so obscurely and indistinctly, as to render it difficult,to decide on the merits; but thfit, if the verdict had been correctly entered,, the judgment below would have been affirmed. , ,

<p>in error.</p> <p>When land* subject to a mortgage, is sold-under a judgment, obtained subse - quently to the execution and ’recording of the mortgage, the purchaser at sheriff’s sale, takes the land discharged of the lien pf the mortgage.</p> <p>It is not error to permit a Scire Facias, to revive a judgment to be amended, even after the plea of mil tiel record pleaded.</p>

<p>IN ERROR.</p> <p>It is error, -when an action is brought for the use of another, and the nominal .plaintiff dies, to swear the jury, and try the cause in the name of cestui que use.</p>

<p>in error.</p> <p>Testator devises to one child a tract of land,, and afterwards devises to another child a larger tract, held by an older title, and which embraces within its boundaries the whole of the tract first devised: Evidence is inadmissible on the part of the first devisee to show that the title to the larger tract was de- ‘ fective. ' •</p> <p>Under such circumstances, the two devisees take the smaller tract together, ’ as tenants in common. , ■ '</p>

<p>IN ERROR.</p> <p>Where the question was whether a deed, an exemplification of which had been read in evidence, the original not being produced, was.a forgery or not, held, that a book of accounts belonging to, and in the handwriting of the ma-' gistrate before whom the deed purported to have.been acknowledged, and' whose name appeared as a subscribing witness, containing charges against the grantor for the acknowledgment of three deeds only, which had certainly been acknowledged before' him, on the same day as' that on which the deed in question purported to have been acknowledged, was competent evidence, the magistrate being dead, to show that that deed had not been acknowledged before him. -</p>

An amicable action on the case was entered in the Court of Common Pleas of Northumberland county, in which the following case was stated: — • . - . . “ It is hereby submitted to the'associate judges, now holding a Court of Common Pleas, to decide whether the defendant is liable to be taxed for his office of President Judge of. the Eighth Judicial District of Pennsylvania, by the laws for raising county rates and levies; and if so, judgment to be entered for the plaintiffs…

<p>IN ERROR.</p> <p>A plaintiff, in. possession of the defendant’s property, under a Liberari Facias, which has been set aside, and restitution awarded, though not actually made, cannot give an authority to another person, to collect from his tenant the balance of the rent due upon the lease.</p> <p>If the person under such alleged authority, distrain upon the tenant, and; upon replevin brought, avow for rent in arrear, • under the lease, he cannot justify the distress,' by proving a parol lease, by himself to the tenant.</p> <p>Nor can he justify the distress, by asserting the character of administrator of the defendant in the Liberari Facias.</p> <p>The proviso in the arbitration act, relative to appeals by executors and administrators, does not apply to cases in which they are sued for their own acts, even if they be done for the benefit of the estate; but to those alone in which .they sue, or are sued, iji their representative capacity.</p>

<p>in error.</p> <p>An action on the case will lie for injury to land, however inconsiderable, which is occasioned by a nuisance.</p> <p>A. erected a mill and dam upon his own land, lying on .Christine’s creek. B., who then owned a tract of land lying higher; up on the same creek, told A., at the time of erection, that he would sue A., should the dam injure his own land. B. after.wards lived on his tract four years, and never.complained of any injury from the dam; but B. and C;, to whom the tract was subsequently-conveyed by B., said, that they considered the dam a benefit. After the death of A., the mill was sold by his executors at public sale, and was purchased by the defendants. D., then owner of the aforesaid tract, by a prior conveyance from C., was present at the sale, but said nothing respecting the ■dam’s being an injury to his land. D. afterwards conveyed to- the plaintiff; who, at a subsequent period, but within twenty years from the erection of thé mill, brought suit for injuries occasioned by the dam to his land: Held, that the preceding facts were no bar to his recovery.</p>

<p>IN ERROR.</p> <p>X St. a tenant in common with X). S. of a'forge, leases his share to J. S., the son of 2?. S., and in the lease it is agreed “ that considerable new work and repairs must be done to the forge, such as’.roofing, and repairing the fore-bay and trunks; and also the hammer and bellows wheels, so far as may be agreed on by JD. S. and J. H.; the expense of which repairs is to be kept ■ correctly and particularly by J. 8.: and the said J. H. agrees to discount out of the rent one half of such expense, provided it should not exceed the' sum of one hundred and eighty dollars in any one year: and the said J. 8. is to keep the said forge in good, tenantable repair during the said term, and at the expiration thereof, give up peaceable possession of the forge and premises, being the undivided half, to the said J. H.” Held, that the lessee was not bound, in the event of JD. S. not agreeing to essential repairs of the kind particularly mentioned, to make them at his own expense, under the covenant to keep the premises in tenantable repair, but was entitled to contribution for so doing. • ,</p> <p>But such'contribution is a personal charge against the co-tenant, and not a lien on the-profits in the hands of his successor.</p>

<p>Writ of error to the Court of Common Picas of Indiana county.</p>

<p>Writ of error to the Court of Common Pleas of- Armstrong county.. - '</p>

<p>IN ERROR.</p> <p>The sheriff cannot call upon the county commissioners to refund the daily'sum he has paid the crier of the court. ,</p> <p>The statute of limitations would apply to such claim, if legal. .-</p>

<p>IN ERROR.</p> <p>On the plea and issue of non damnificatus, in a suit on a mortgage given to se-cure to the plaintiff the future conveyance by certain heirs to him, the plain- ■ tiff cannot give in evidence, tó show the amount of damages he sustained, that ' he had, since the suit, purchased of the heirs, and the conveyance from them to him.</p>

<p>TN ERROR.</p> <p>In an action brought by two administrators; with the will annexed, on a bond’ given to the testator, the defendant cannot, under the pleas of payment with leave to give the special matter in evidence, and set-off, prove, that upon a settlement of the testator’s estate, the debts had all been paid, and the legacies satisfied; and that the bond in question, with other monies received by the administrators, remained- to pay and satisfy the legacies and shares of the administrators in right of their respective wives; and that in consequence of the receipt of other large sums by one of the admiiiistrators, A., the said bond belonged to the other administrator, B.: That the defendant, before the suit was brought, had paid, as surety of B., sundry large sums on his account; and further, that B., before the commencement of the suit, had applied for, and obtained the benefit of the insolvent laws: That the defendant had been appointed his assignee, and regularly qualified as such.</p>

<p>in error.</p> <p>Where one conveys land which has been surveyed and returned, and describes it as land held on a warrant of a certain date, and in a certain name, all the land embraced by the survey passes, though the purchaser did not at the time of the sale know, that a certain part was included, and afterwards, frequently spoke of it as the land of the seller; provided the interest of third persons be not affected by such declarations.</p> <p>And this is more emphatically the case, where the seller is an executor, with power to sell, and has, through a mistake, in supposing it to be vacant land, cut off part of the testator’s estate, and appropriated it to his own use.</p> <p>But it seems, that if the purchaser has got a title to such part, without having paid for it, he will be a trustee for those beneficially interested.</p>

<p>IN ERROR.</p> <p>An administrator, who has paid money within the year to a creditor of the intestate, on account of a just debt, cannot recover it back, on the ground that, by reason of deficiency in the assets, not arising from their accidental failure, it afterwards appears to have been an over-payment, by mistake.</p>

<p>Writ of error to the Court of Common Pleas of Cumberland 'county.</p>

<p>CERTIORARI.</p> <p>The Court of Quarter Sessions, under the act of the 6th of April, 1802, have power to grant a.re-reviéw of a road, though, two former sets of viewers have reported in favour of the road, '</p>

<p>IN ERROR.</p> <p>The borough of Chambersburg, under a power given by the act of assembly to. assess, apportion, and appropriate such taxes as shall be determined by a majority of them, necessary for carrying their rules and ordinances into complete effect,.provided, no tax shall be laid in any one year, on the valuation ' of taxable property, exceeding one cent in the dollar, has power to assess' single men, without property, inhabitants of the borough'.</p>

In the Court of Common Pleas of Franklin county, to which this writ of error was-directed, the following case was stated, for the opinion of. the court. The plaintiff in error was defendant below:— . In the year 1818, James Walker held two judgments, amounting to about'six hundred dollars; one entered to November Term, 1817, No. 113, arid the other to the same. term, No. 114, ¡against a certain George Fennell, who was the owner of a certain house and lot in Greencastle.

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

<p>CERTIORARI.</p> <p>A husband may petition the Orphans’- Court in right of his wife, for the partition or valuation of his wife’s estate, where her father dies intestate.</p>

<p>APPEAR.</p> <p>The Commissioners of a county, as well as the treasurer-, are bound to take an oath of office.</p> <p>It is no defence for a treasurer, in a suit by the commissioners on his official bond, that the commissioners have not taken an oath of office.</p> <p>The acts of public officers dc facto, coming in by colour of title, are good so far as respects the public, but void when for their own benefit.</p> <p>K payment to a county treasurer, who has not taken the oath of office, by hi* predecessor, is a legal payment.</p>

Writ of error to the Court of Common Pleas of Franklin county. The plaintiff in error was defendant below. In the court below, it was an ejectment by Scroggs against Lindsay, for two hundred and eighty acres of land in Southampton township, Franklin county.

<p>IN ERROR.</p> <p>Testator devised all his property, real and personal, to his two sons, H. and D.t subject to the payment of certain legacies, and made H. and D. executors. They filed an inventory, amounting to’two thousand six hundred' and thirty-one dollars and fourteen cents, and went into possession together of the property. H. sold some of the personal property: D.j in less than a year, moved to.the western country. There was no ijale by D.,- and the principal part of the property remained after D’s. removal.</p> <p>On an issue to try, whether part of the" estate of the testator, amounting to ten thousand dollars, came into the hands of D., as surviving executor, and he was chargeable therewith, evidence on the part of the plaintiff, a legatee, is admissible to prove, that the defendant, D., is a creditor of the estate of H., his co-executor, (now deceased,) and the debt accrued by the transfer of the ' estate of the testator to H. by D., and that he claims to be first paid out of the funds of the testator.</p>

<p>Writ of error to the Court of Common Pleas of Franklin county.</p> <p>Sherfy was sued in this action for neglect of his duty as constable: and judgment was given against him in the court below on demurrer. Three executions in favour of Fisher, against one John Toms, had been issued hyN.-Wilson, Esq., a justice of the peace, and delivered by him to the defendant to be executed. The. defendant had levied the executions upon the goods of Toms, but before any sale, Toms having sued out of the Court of Common Pleas three writs of Certiorari, and served them upon Wilson, the justice, he, Wilson, called personally upon the defendant, and recalled,.and withdrew the executions. No bail had been entered ou taking out the writs of Certiorari, and the levies were lost.</p>

<p>IN ERROR.</p> <p>Practice as' to writs of error on awards of referees changed. Hereafter the court in which the cause is pending is'to be resorted to for redress, in those cases in which heretofore writs of'error were sustained to examine awards and proceedings of' referees. . . • ■</p>

<p>Appeal from the decision of the Court of Common Pleas of Cumberland county.'</p>

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

<p>IN error.</p> <p>A bond given to A. and B., who were directors of the poor, may be sued in their names for the use of the directors of the poor, though they constituted a body corporate.</p> <p>Where a bond is directed by statute, to be taken by a corporate body, but no form is prescribed, it is good, though, taken in the name of individual mem- , bers, as obligees.</p>

<p>IN ERROR.</p> <p>A father agrees to convey land to his son for the sum of six thousand dollars, ■with certain reservations; by one of which, the son engaged, for himself and his assigns, to give to his father yearly, and every year, twenty bushels of wheat, twenty bushels of rye, and twenty bushels of corn; also, two good loads of hay, ike. A conveyance is made, referring to the articles, and possession taken by the son. Held, on a purchase of the son’s estate at sheriff’s salé, that this is a rent, and the covenant to pay it runs with the land, and binds the vendee, - ,</p>

<p>IN ERROR.</p> <p>After a Fieri Facias, levied on land and returned, grain was sown on it; another creditor levied on the grain and sold it, and afterwards the land was sold on a Venditioni Exponas, issued on the first Fieri Facias. Held, that the creditor who levied on the grain, had the right to hold the proceeds.</p>

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

<p>Writ of error to the Court of Common Pleas of Mams county.</p>

John Findlay, .Samuel Findlay, John Palmer, and Mary, his wife, who was formerly Mary Findlay, the plaintiffs below, and defendants in error, brought an-action of ejectment for one hundred and thirty-two 'acres and ninety-nine perches of land, against John Stump, John Myers, and their tenant, the defendants below, and plaintiffs in error. The jury found a verdict for the plaintiffs below.

<p>Error to the Court of Common Pleas of Cumberland county.</p> <p>This was a feigned issue of devisavit vel non, to try the validity of a paper writing, purporting to be the last will and testament of Ludwich Bucher, deceased. The plaintiff in error was defendant below. '</p> <p>The plaintiff offered in evidence the paper writing, purporting to be the will of the said Ludwich Bucher, deceased, with the probate endorsed, taken by the register, and upon which letters had issued before the appeal to the Register’s Court. This was objected to by the defendant’s counsel, on the ground,</p> <p>“1. That this was a feigned issue, and any evidence before the register was ex parte, and could not authorize the paper to be read. “ 2. That the subscribing witnesses must be called.</p> <p>“ 3. That the issue was directed as to the validity of the will, and was not collateral.”</p> <p>The objection was overruled, the testimony admitted, and exception taken by the defendant.</p> <p>The paper and probate were then read, and the defendant’s witnesses were afterwards called and examined, and then the plaintiff examined the witnesses to the will.</p> <p>The plaintiff then requested' that the probate might go out with the paper writing to the jury. This was objected to by the defendant, but allowed by the court; to which the defendant’s counsel excepted. The jury found a verdict for the plaintiff below.</p> <p>The errors now assigned, were the matters contained in the two bills of exceptions.</p>

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

<p>in error.</p> <p>J, L, being, in custody, gave bond with surety, conditioned to appear, and “ make application for the benefit of the several acts of assembly, and for the relief of insolvent debtors, and surrender liimself to the jail of the county of C., in case, on his said application, the court should remand him to custody, and that he should do all things required by law to procure his discharge.” Held, that this condition imposed no harder terms than the bond required by the act, and was substantially in conformity with the law.</p> <p>Parol evidence is not admissible to show, that the Court of Common Pleas ought to have discharged a petitioner, instead of rejecting his petition.</p>

<p>Error to the Court of Common Pleas of Cumberland county. Assumpsit for money had and received. The plaintiffs in error were plaintiffs below.</p> <p>In the court below, a special verdict was found, on which, that court gave judgment for the defendant.</p> <p>John Brenizer, in his life time, and at his death, was seised in fee of a tract of land, in Allen township, Cumberland county, containing 215 acres; and made his will, dated the 25th of July, 1805, which was duly proved and registered in Cumberland county, on the 5th of Judy, 1816, whereof the defendant was appointed executor, and took upon himself the execution thereof. The said testator left eight children and heirs, of whom the defendant, and George Brenizer, were two. The said George having executed to Henry Isett a judgment note for two thousand dollars, dated the 20th of June, 1814, judgment was thereupon confessed, and entered of record, in the said court, on the 1st of July,-1817, No. 263 of April Term, 1817, the balance of the debt and interest then being fourteen hundred and two dollars, and sixty-two cents. A Fieri Facias was issued thereon, No. 41 of April Term, 1818; in pursuance whereof, Andrew Mitchell, Esq. then sheriff of the said county, levied on the one undivided eighth part of the said land, and of another tract of seven acres, adjoining the same, as the property of the said ■George Brenizer; an inquisition was held thereon, and the property condemned. A writ of JPluries Venditioni Exponas issued, No. 132, of August Term, 1819, and the said property was sold hy the said sheriff to the plaintiffs, Morrow and Fleming, executors, &c. in trust, for the heirs of Henry Isett, deceased. A deed was made, dated the 7th of August, 1819, and duly acknowledged on the 3d of November, 1819.</p> <p>On the 9th of September, 1816, the defendant, David Brenizer, paid George Brenizér six hundred dollars, and took his receipt, in the following words: “ Received, September 9th, 1816, of David Brenizer, executor of the estate of John Brenizer, deceased, six hundred dollars, on account of my legacy, or whatever may lawfully come to my share, after the said David Brenizer,- executor, make sale of all the real and personal estate of my father, John Brenizer, deceased, with lawful interest from the date above written.</p> <p> "George Brenizer.'” </p> <p>The following notice was served by the defendant on Sheriff Mitchell, on the day of its date, and posted up on the court house Wall, viz:</p> <p>“Sir — Take notice, that the land-which you have advertised for sale, as the property of George Bránizer, does, not belong' to the said George, but is part of the estate of my father, John Brenizer, deceased, of which I am executor; and that the said George has no claim in the said land, being only entitled to a legacy in money, under the will of his father, of which I paid him six hundred dollars, on account. “David Brenizer.</p> <p>“To Á. Mitchell, Esq. Sheriff of' Cumberland county.</p> <p>“August 3, 1818.”</p> <p>On the 11th of November, 1819, the defendant entered into articles of agreement with John Wist, for the sale of two hundred and fifteen acres; and the said Wist has paid the hand money and gales hitherto falling due, to the defendant,, agreeably to the said articles. The defendant has settled an account of his administration of the estate of the testator, and received the monies therein charged to him; and paid out the monies credited to him.</p> <p>The plaintiffs are the executors of Henry Isett, who died after the levy, and before .the sale. These questions, therefore, arise for decision, viz:</p> <p>1. Was the said judgment a lien on the said George Brenizer’s interest in the said land ? Or did the said levy, and sheriff’s sale, transfer any right to the plaintiffs?</p> <p>2. Can a suit, under the circumstances stated, be supported at all-; or, if it can, can it be supported in the names of the present plaintiffs, or must the suit be in the name of the said George Brenizer, for the use, &c.</p> <p>3. What is the'effect of the said receipt; for six hundred dollars, on the rights of the parties?</p> <p>If the court shall be of opinion with the plaintiffs, judgment to be entered for them; for such sum as the court shall order; if for the defendant, judgment to be entered for the defendant. The papers herein referred to, to be considered as parts of this special verdict. The said Isett and his executors resided in Greensburg, Pennsylvania, at the times mentioned. Out of the personal estate; the defendant, as the administrator of his sister Barbara, retained fifty pounds, the amount of a pecuniary legacy to her; and also, fifty pounds for her services, agreed to be due to her by the testator, on his death-bed; which sums are not .credited to the defendant, in his administration account of the estate of John Brenizer, deceased, and which sums were retained by the defendant, as administrator of the said Barbara, who died about the 6th of December, 1820.</p> <p>The court below gave the following opinion;</p> <p>“The exception to the form of the suit is fatal. The claim for a legacy is not ex contractu. There is, therefore, no implied promise to pay. It is not founded on any kind of contract. Walker’s Executors v. Wiley and Wife, 12 Serg. & Rawle, 96. Wilson v. Wilson, 3 Binn. 557. It is a good consideration for a promise; but here, no express promise is alleged.</p> <p>“The defendant sold the land exclusively under the powers in the will. He received the money under the will exclusively, as executor of the estate. He held it for the uses of the estate, to be applied and appropriated under the laws of the commonwealth, and the provisions of the will. The will is the title by which the plains tiffs claim the money. If their claim is not good, under the will, they have none other. -The defendant, therefore, has a right to resist any suit against him as executor. As executor, he might have pleaded in abatement, the want of a refunding bond. The plaintiff, by shifting the liability, cannot deprive him of this right.' As We deem this point conclusive, it is-unnecessary to examine any other.”</p> <p>Extract from the will. — “As to such worldly estate, &c. As soon as convenient, after my decease, all my property, real and personal, shall be sold at public sale by my executors, hereinafter named, and the monies arising therefrom,, to be equally divided among my nine children, excepting Barbara is to have fifty pounds more than any of the rest of my children; to be paid to her, by my executors, out of the first money that cQmes to hand arising from my estate. And, as I have already advanced to John fifty pounds, for which he has given me a bond, it is my will, that my son John shall not receive any more monies arising from my estate, until each of my other children shall be made equal with him, &c. Out of the monies arising from my personal estate, and hand money of the plantation, all my children shall be .made equal, excepting Barbara’s fifty pounds, over and above any of the rest of my children. And all the sums charged against my children in my book, to be settled Out of the first monies arising out of my es? tate, still reserving Barbara’s fifty pounds. After all are made equal, the residue of .the purchase money of my plantation to be equally divided among my nine children, to wit, &c. to them, their heirs and assigns for ever, to be paid to them as hereinafter dir rected.</p> <p>“ And it is my will, that my executors shall have full power to give a clear and indisputable title to the purchaser, or purchasers, of my lands. And, if my executors should not be able to sell my lands, shortly after my decease, it is my will, that they shall rent the place to the best advantage, until an opportunity offers. Michael and David Brenizer to be executors.”</p>

<p>IN ERROR.</p> <p>Damages for detention, are recoverable in a suit for a penalty, by the party grieved: but it is otherwise in the case of a common informer.</p>

Writ of error to the Court of Common Pleas of Adams county. In the Court of Common Pleas of Adams county, a Capias was issued to November Term, 1825, at the suit of the Bank of Gettysburg, against Henry M. King, in which he was arrested, and together with Edward Kitchen, gave the sheriff a bail bond. The present suit was brought on the bail bond to August Term, 1826.

Writ of error to the Court of Common Pleas of Cumberland county. The plaintiff in error was defendant below. The following case was stated for the opinion of the court, the facts therein set forth having been agreed to by the parties, and the same to be considered in the nature of a special verdict, reserving to either party the right to take a writ'of error.

<p>Writ of error to the Court of Common Pleas of Perry county.</p> <p>The plaintiff in error was plaintiff below, in trespass vi et armis, in which the jury gave a verdict for the defendant, and the court entered judgment with treble costs.</p> <p>The charge of the court below to the jury, which the plaintiff excepted to, states the points of law arising there, and was as follows;—</p> <p>Charge of the Court. — “ We are of opinion, if the evidence is true, that the court of appeal was legally constituted, and had jurisdiction of the case of Samuel Shoemaker. His name appearing on the roll of the company, being regularly noted as an absentee, and his name duly certified to the court of appeal, conformably to the provisions of the acts of assembly, notice of the appeal being given, and the co.urt not having remitted the fine, but certified the same to Captain Nesbit, and he having issued his warrant, we say, upon these facts, if proved to'the jury, an action of trespass could not be sustained against the captain. It is immaterial whether Shoemaker was in fact, and in truth, a regular member of the company or not. His name being in the roll, and regularly returned on oath to the court-of appeal, their refusal to remit his fines, and having duly certified their proceedings to the captain, was sufficient authority for him to issue his warrant. The court of appeal had jurisdiction of the offence. The captain was bound to carry their sentence into effect. His process was regular; although it might have been erroneous, trespass would not necessarily be sustained. What was the captain to dp ? The fine regularly imposed, although erroneous, could not be released by the captain. It would overthrow the whole militia system, if captains of companies were liable in trespass and to vindictive damages, in all cases of error before courts of appeal. The plaintiff is not without remedy. If fraud or deceit be practised upon him, no doubt, an action on the case would lie for falsely enrolling an individual in a company, against a captain, or any other officer who might practise it.</p> <p>“ You must decide facts. If they are as we state them, and they are not controverted, we think the defendant is entitled to your verdict."</p> <p>Errors assigned: — •</p> <p>“ 1. The Court erred in charging the jury, that an action of trespass would not lie against a militia captain, by a person who had been improperly enrolled in his company, for acts done in pursuance of a warrant issued by him for a fine imposed by a court of appeal; but that the only remedy in such case, for such a person, was an action on the ease for falsely enrolling him.</p> <p>“ 2. The Court erred in rendering judgment against the defendant for treble costs.</p> <p>“3. There is error in taxing treble costs, by makingthree times the amount of single costs; they should be half single-costs, and'fourth single costs."</p>

R. Jacob, the defendant below, and the right to his service guarantied. Proof was given of the price to be paid, and that part was yet due. Ben sued out a Habeas Corpus, in the Court of Common Pleas, against D. R. Jacob, on the 19th of February, 1819, returnable the 20th of February, when he was discharged. The defendant belowendeavoured to prove service of notice on Jane Jacob of this Habeas Corpus.

<p>Writ of error to the Court of Common Pleas of Jldams county.</p> <p>The plaintiff in error was defendant below.</p> <p>The judgment in the court below was in debt for three hundred dollars, on a forfeited recognisance. In February, 1827, the defendant, George L. Shriver, was bound over by a justice of the peace, in a recognisance in the sum of three hundred dollars, to appear at the next court of Quarter Sessions, to answer the complaint of ill treatment of his apprentice, Elias Thompson, and not depart without Ieaye. The parties appeared in court, and on hearing, the master was thought by the court to have maltreated his apprentice, not in such a degree as to justify the court in dissolving the indenture, but yet demanding some punishment. He was, therefore, directed to pay the costs; but he refused, in open court, to comply with this order, on the ground, that the court had no authority to impose on him the payment of costs. The court, therefore, ordered his recognisance to be forfeited, and by the record, it appeared it was forfeited. The declaration stated the recognisance and its forfeiture. The pleas were nil debet and payment.</p> <p>The defendant in the court below requested the court to instruct the jury, that if the defendant always answered when called, it was a compliance with the condition of the recognisance. But the court charged, that this was not sufficient: he ought to have complied with the order of the court. The defendant excepted. The jury found a verdict for the plaintiff for three hundred dollars, and judgment was entered -thereon.</p>

<p>Writ of error to the Court of Comm.on Pleas of Cumberland county. The plaintiffs in error were plaintiffs below, in assumpsit for money lent and advanced, money paid, laid out, and expended, and money had and received. Pleas, non assumpsit and payment, with leave to give the special matters in evidence.</p> <p>The cause of action appeared^ by the following receipt, signed by the defendant, and given in evidence by the plaintiffs on the trial:—</p> <p>“Received, November % 7th, 1814, of John Greigor, by the hand of Michael Haber, three hundred dollars, on sundry executions which were put into the hands of Adam Greigor, deceased, who served as deputy constable for the aforesaid John Greigor, per me,</p> <p> “A. Wills ” </p> <p>The nature of the case appeared from the following charge to the jury:—</p> <p>“ This is a suit for money had and received. The evidence shows, that the money claimed by the plaintiffs was received by the defendant, in virtue of his office as a justice of the peace; being the amount of debt, interest, and costs, in a number of suits brought before him, by different plaintiffs against various defendants; in which trials were had, judgments rendered, and executions issued, and put into .the hands of Adam Greigor,.as deputy constable of John Greigor, and the monies paid over by John Greigor to the defendant. It is now alleged, that the constable was not liable: That the debt, interest, and costs, &c. were not due, or had been paid: That there was mistake and fraud in the settlement and receipt of the money, and the defendant should refund. It is objected, that no notice was served on the defendant, agreeably to the provisions of the acts of assembly, &c. We have no doubt, the law requires a previous notice, before this suit can be sustained; The money was received by the defendant as a justice of the peace; received by him in his official character. The computation and reckoning were by him as a justice of the peace. All his dockets are made by him as a justice. If there is fraud, it is official fraud; and if mistake, it might have been rectified without suit, if notice had been served. We think the plaintiffs cannot recover.” To this charge the plaintiffs excepted.</p> <p>Two errors were now assigned^ — . .</p> <p>“ 1. The decision of the court was erroneous, that previous notice to the defendant was required by the act of assembly of the 2'lst of March, 1772, of the'swit, whether the money, which it was brought to recover back,, was received by him.through mistake, or fraudulently. ■ •</p> <p>“2. That the court took from the jury the decision of the facts which had been adduced in evidence.” ’ ,</p>

<p>INBEUOE,</p> <p>In no c^'se can a continuance be demanded by reason of an amendment, unless where the opposite party is thereby taken by surprise, and of that matter, generally, the court must judge.</p>

<p>Writ of error' to the Court of Common Pleas of Cumberland county, in an action of ejectment, in which the plaintiff 'in error was plaintiff belów, and claimed two undivided sixth parts of a tract of land.</p> <p>The facts material to the case appearing in evidence on the trial, were as follow:—</p> <p>Robert Coffee béing seiséd of the whole tract in question, died about the year 1800, leaving a widow and five children, having duly made his last'will, as follows:— , '</p> <p>“ I give 'unto my beloved wife, Nancy, during her life time, or widowhood, all.my estate, real or personal, to be by her applied towards raising and schooling my children, and at her decease, the remainder, if any, to-be divided according to the laws of'this commonwealth, share and share alike. And, in case she should see cause to marry, she is to have only her bedding-,' and an equal share with the children that may then be living, out of my estate; and the remaining executor or guardian's of the children, to take care of iheir parts. And I do hereby constitute and appoint my loving wife, Nancy, and my trusty friend, John Reynolds, as executors to this, my last -will and testament, hereby empowering them, if they think fit, and .get what they judge a sufficient price for it, to sell and convey a small tract of land, (the tract in.question,) belonging to me in Southampton township, Cumberland county, adjoining my brother,Thomas Coffee, John Lain, and others, containing near one hundred acres, be the same more or less, hereby giving, them, or the survivor of them, full power to sell and convey, and to make, execute, sign, seal, and deliver a conveyance, or conveyances, for the same, in as full and ample a manner as I could do were I living, and present. And the money that may. be'got for it to be laid out on other property, or to the best advantage, except what may.be necessary for keeping, schooling, and raising the children, until they are empowered to call for it, agreeably to the former part of this.” • - )</p> <p>Nancy, the widow, intermarried with M‘Knight, in 1805. John Reynolds, the co-executor,. died in 1814. '-It appeared, that MiKnight, on his marriage, took possession of the land; and during the infancy of th.e- children, and down to the year 1817, held the whole, or greater part of it. Thomas and John, two of the sons of the testator, after they came of age,.appear to have been in possession of a part for a number of years; and, at one time, the land was rented, and the rent, as the witness said, payable to the heirs. It was sworn, that Thomas sold, by parol, his interest under .the will, to M'Knight, in 1806, for two horses, which he received; and, that John also, by parol,' sold to MiKnight his interest, for one hundred and fifty dollars, which he received. A receipt was also produced, signed by John, and given to M'Knight, dated the 15th of April, 1818, for four hundred dollars, “for my share and a half {ho had purchased a half share,) in the estate of my late fatherOn the other hand, it was sworn,-that in 1821, by the unanimous consent of the heirs, (except an infant child of Robert, who had died,) a partition was made of the property by a surveyor, employed for the purpose, into six shares, divided by metes and bounds, and that Thomas and John drew'their shares by lot with the rest. Mrs. M‘Knight, the-mother, also, drew, her share. Mrs. M'Knight objected; for what reason is not stated; and the partition appears to have been abandoned. The.youngest, child of the testator came of age-i'n 1819. In March, 1822, M‘Knight, together with his wife, the executrix, under the alleged power in the will, by deed, reciting a consideration in money, and recorded in July following, sold and conveyed, in fee simple, the whole tract to Williamson, the' de.■fdndant. - ■</p> <p>Ciarle, the plaintiff in the ejectment, derived his claim as follows : — In April, 1819, the executors of John Krisher, obtained a ■judgment by confession, before a justice of the peace, against Thomas and John Coffee,, two of fee sons of fee testator, for four hundred "and fifty-eight dollars. A transcript of this judgment being filed in the prothonotary’s office in May, 1820, after sundry executions, and a levy upon the interest of Thomas and John in the land in question, a sheriff’s deed was, in due form, made'to Clark, the plaintiff, for the two undivided sixth parts of Thomas and John.</p> <p>The plaintiff, on the trial, presented sundry points of daw to the court. None of them, except the fourth’, is material. The answers ■ to the rest were not complained of.' The fourth point was: “That if the children w-ere all of age, several years before the alleged sale to Williamson, and all married, and all necessity of schooling, raising, and supporting them, had long ceased, and the widow was married in 1805, then the widow and her husband had no power to sell the land at all in 1822.”</p> <p>The court charged theju'ry: “ The plaintiff purchased at sheriff’s sale the alleged estate of John and Thomas Coffee in the tract of land of their father, as described in his will; and this ejectment is brought to recover the possession. Suppose the suit was by Thomas and John Coffee against the defendant, could they recover? Old Robert Coffee, the father of John and Thomas, owned the land. He made his will, and appointed his wife executrix, with J. Reynolds, executor. Reynolds soon after died. .In that will, the widow, as surviving executrix, had power .to sell Ihe land referred.to, and the proceeds were directed to be appropriated in a particular way. What did Thomas and John take under the will?; The legal estáte, by.the operation of the will,.and the act of assembly of 1792, was vested in the executors. They had a right to take possession of it, and a right to sell. Thomas and John either were to take a legacy, in money, out of the proceeds of the sale, or at most, had an equitable interest in the land. If the executors had denied the trust, of refused to execute-it, they might have been compelled by ejectment. But if they have not denied-the trust, nor refused to execute it, I cannot see how an ejectment could be sustained against them.-The law gave them the fight to possession, and the legatees, as such, could not deprive them of it. There was a discretion vested'in the executors, or survivor, as to the sale, and price, by the will. The power to sell is not limited to the period of the infancy of the children, as contended for by the plaintiff’s counsel, and a sale was actually made by the executors to D. Williamson, and the deed recorded before the sale by the sheriff to Mr. Clark. It might ope-, rate most'unjustly if the plaintiff’s construction were given to the will. Suppose the- facts to Be as John Coffee, (a witness,) stated, that Thomas did actually sell out his share to M‘Knight, who had married the executrix, and that Johm Coffee did sell out his also, and both did actually receive, in money, the whole amount of their interest,, from the husband of the surviving executrix, long before the judgment on which the sale to the plaintiff was made. If such were the facts, in connexion with the sale, as stated, I cannot see how the plaintiff can recover in this suit. As to the fourth point proposed, we cannot answer in the affirmative: We refer to the remarks made-before taking up the points, as a fuller answer to this proposition." ■</p> <p>In the charge of the court to the jury, three errors were now assigned, viz. •' ■</p> <p>1. That the executors o.f JR. Coffee were entitled to the possession of the land, and could not be deprived of it by the heirs, and the plaintiff could not recover.</p> <p>2. That the power to sell was not limited to the infancy of the children; and in réfusing to answer the plaintiff’s fourth point in the affirmative. .</p> <p>3. That if T. and J. ■Coffee sold their interest to-M Knight, who married the executrix, and^received the price before the judgment and the sheriff’s- sale, and if the executors sold to Williamson, whose deed was recorded, -the plaintiff could not recover, without any reserve as to thé possession, clearing, &c., or want of notice toKrisher’s executors, or Clark, of the parol salé, &c.</p>

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

<p>Appeal by the plaintiffs from the decision of the court below.</p>

<p>IN ERROR.</p> <p>Declarations by a principal in a bond to a witness, in the absence of the surety;, that a judgment note, which he gave him to deliver to the party was to secure him, accompanied by proof, that the note was delivered to the party, and he entered up judgment and collected monies thereon, are good evidence, as part of the res gesta• .</p>

<p>IN ERROR.</p> <p>In a foreign attachment against A. as defendant, and a Scire Facias against B., executor of C., as garnishee, to recover a legacy bequeathed,by C. to A., it is a good defence, that C. was surety for A.! and the executor had been sued, and was likely to be compelled to pay the money; and the court will direct a conditional verdict for the plaintiff! to prevent issuing execution till the .executor be rendered safe.</p> <p>Query, if a legacy can be attached ?</p>

<p>IN ERROR.</p> <p>A'judgment.confessed on an amicable Scire Facias on a former judgment, is a valid lien against subsequent encumbrancers, though the original judgment did not legally exist.</p>

<p>IN ERROR.</p> <p>The certificate of aprothonotary, that a writ, declaration, or statement, cannot be found in his office, is admissible in evidence, to prove the loss of such papers.</p> <p>The docket entries of a suit, appearance, plea, and issue, are admissible in evidence to show, that a suit has been brought; and whether the suit was an ejectment for a particular tract of land, may be proved by parol.</p> <p>An agreement, admitting the defendant in ejectment to be in possession of the land in controversy, does not preclude the plaintiff from showing how the defendant .got into possession.</p> <p>Jf a deputy surveyor has included too much land within the lines of a survey, he cannot, without the knowledge and consent of the party for whom it was ■made, throw out a part, including cleared fields, and the best land. If he do so, the party injured is bound to apply for redress to the Board of Property, and obtain a resurvey. But, if after the survey is returned, and before application for redress is made, any third person acquires a right to the land thrown out, by actual settlement, or the purchase of a warrant, the party injured by the act of the deputy surveyor, cannot, especially if his application for redress has been long delayed, recover against such third person.</p>

<p>In an action of trover brought by administrators for certain bonds, given to the intestate by the defendant, who refused to surrender them, on the ground that they had been given up to him by the intestate, who was his father, the declarations of the intestate, made in the absence of the defendant, tending to negative the allegation of the defendant, were held not to be admissible in evidence.</p> <p>In trover for bonds, the measure of damages is the amount which may be recovered on them.</p> <p>Therefore, where an intestate had agreed to convey to the defendant a tract of unpatented land, by “a good deed or lawful conveyance,” and bonds were given for the consideration money, which bonds afterwards came into the hands of the defendant, in an action of trover for the bonds, by the intestate’s administrators, the defendant may prove, by way of defence, that he paid for patenting the land, for the funeral expenses of the intestate, and that ne had worked for the intestate, who had promised to pay him for his services.</p>

This case came before the court on an appeal from a decree of the Orphans’ Court of the city and county of Philadelphia. On the 19th of November, 1824, auditors were appointed by the Orphans’ Court to settle and report upon the accounts of Margaret Montgomery, late Torr, and John Torr, Administrators of Josiah Torr, deceased.

On the return of a writ of error to the Mayor’s Court of the city of Philadelphia, it appeared, that William Douglass, the defendant below, was indicted in that court for an alleged violation of the ordinance of the 6th of June, 1796, “to prevent the erection of wooden buildings, within certain limits of the city of Philadelphia, by which it is enacted as follows: — • “Section 1.

<p>APPEAL.</p> <p>Where the sheriff sells personal property as the goods and chattels of the defendant in the execution, which are claimed by another, the court out of which the execution issues, cannot, under the act of the 16th of April, 1827, determine to whom the property belonged, and award the money accordingly. The remedy of the claimant of the goods is, by action against the plaintiff in the execution, or the officer, or both.</p>

<p>• A case was stated for the opinion of the District Court for the city and county of Philadelphia, from which this case came up on a writ of error, to be considered as a special verdict. It was as' follows:—</p> <p>The plaintiff in error, who was also plaintiff below, brought an action of covenant upon an indenture of apprenticeship, against John Levering, who was guardian of Solomon Rauch. By this indenture, which was made on the 1st of May, 1826, and the parties to which were Solomon Rauch,ith the consent of his guar dian, John Levering, the said guardian, and Michael Velde, the said Solomon Rauch was to serve Michael Veldé four years, five months and ten days. The usual covenants were followed by these wofcIs: — “And for the true performance of all and singular the covenants and agreements aforesaid, the said parties bind themselves each unto the other, firmly by these presents.” The jury found, that the apprentice had absented himself from his master’s service on the 29th of July, 1827, without his leave, and-did not return; and they assessed the damages at four hundred and fifty-four dollars and twenty-five cents, for this breach of covenant by the apprentice, subject, nevertheless, to the opinion of the court, on the liability of the defendant under the indenture. The court below were of opinion, that the defendant, John Levering, was not liable for a breach of the covenants in the indenture, committed by the apprentice,-and accordingly rendered judgment on the special verdict for him; which the plaintiff now assigned for error here.</p>

<p>IN ERROR.</p> <p>Where a defendant, in custody'on an execution, gives bond with surety to take the benefit of the insolvent laws, and forfeits his bond, a second execution may be issued against him. But if, when he is in custody under the second execution, the plaintiff discharges him from prison, without the assent of the surety, the debt is satisfied, and no action can be maintained against the surety upon the bond.</p>

<p>CASE STATED.</p> <p>Testator bequeathed to his sons-in-law, J. and R., twenty thousand dollars, in trust, to place the same out at interest, and to apply the interest to the support and education of all the children of his son, H., born, and to be born, during their respective minorities; and to divide and pay the principal in equal parts and shares to the said children, when, and as they severally and respectively arrived at the age of twenty-one years. At the time of testator’s death, his son, H,, had five children, and afterwards, at the time the eldest child attained the age of twenty-one year?, had five more; at which time the whole ten were living; and it was agreed he might have more. Held, that the principal of the legacy was to be divided among those children who were living at the time appointed by the testator for its distribution, in exclusion of those who might be born afterwards.</p>

Writ of error to the Court of Common Pleas of Philadelphia county, in which a case was stated for the opinion of the court, with liberty to turn the same into'a special verdict. Jesse Stanley, the defendant, has' been in the possession of a-house and lot in the city of Philadelphia, since the year 1826, as tenant, from year to year, at.a rent of two hundred and twenty-five dollars per annum,, payable quarterly, on the 20th days of February, May, August, and November.

In the District Court for the city and county of Philadelphia, from which the record of this case was returned on a writ of' error, the defendants in error, who were plaintiffs below, brought an action on a bond, given to their testator by Lewis Enters, the-plaintiff in error, dated the 8th of October, 1813, conditioned for the payment of two thousand two hundred and sixty-six dollars and sixty-seven cents.

<p>IN ERROR.</p> <p>Where the injury complained of is a dontinuing one, and such continuance is the ground of a new action, it is error to lay in the declaration affirmatively, that any part of the injury accrued after the commencement of the suit.</p> <p>But where the only act which is actionable, has passed before the writ issued, and the consequences of it, though continuing, are not the ground of a new action, it seems, the law is otherwise.</p> <p>But if it be not, and the time is laid under a videlicit, or is insensible, or impossible, the error is cured by verdict.</p>

This case came before the court on an appeal from the decision of the District Court for the city and county of Philadelphia, under the act of assembly of the 16th oí April, 1827, “relative to the distribution of money arising from sheriffs’ and coroners’ sales,” &c. A case was stated for the opinion' of the District Court, from which it appeared, that Howell obtained a judgment in that court against Alkyn on the 15th of September, 1826, for one thousand three hundred and…

<p>On the return of a writ of error, by which the record of this case was removed from the Court of Common Pleas of Northampton county, it appeared, that Henry Driesbach, the defendant in error, brought an .action of assumpsit against Frederick App and Ludwig Kleppinger, executors of Michael App, deceased, for the share alleged to be due to him as one of the residuary legatees of the said Michael App.</p> <p>The declaration contained two counts, the first of which, set forth in substance, that the said Michael App, on the 2.5th of March, 1808, made his will; by which, among other things, he directed, that the whole of the residue of his estate should be sold by his executors, and as equally as possible, divided among his four children, Frederick App, Mathias App, Leonard Hisley, and Henry Dreisbach: That lie appointed the defendants his executors, who proved the will, and that the sum of seven hundred and nine dollars and sixty-three cents, beyond all debts, funeral expenses and specific legacies, came into the hands of the executors, of which they became liable to pay to the plaintiff, one hundred and seventy-seven dollars and forty cents, one-fourth part thereof, which they promised to pay.</p> <p>The second count was for one hundred and seventy-seven dollars and forty cents, money had and received by the defendants, for the use of the plaintiff.</p> <p>The defendants pleaded non assumpserunt, non assumpserunt' infra sex annos, and payment with leave, &c. The plaintiff took issue on the first plea, and to the last, replied non solverunt and issue. To the second he replied, “that the sum demanded is for a share of the residue of the estate of Michael Jlpp, deceased, bequeathed to the plaintiff, by the last will and testament of the said Michael Jlpp, and the money received in trust, and wrongfully withheld from the plaintiff” The defendants rejoined, that no such monies were received or withheld by them, and issue.</p> <p>The will of Michael Jlpp, so far as it is material, was in these words:—</p> <p>“I have sold to my son, Frederick Jlpp, a piece of land, situate in Lehigh township, Northampton county, as per agreement made, executed the 18th of November, in the year 1780, for the sum of three hundred pounds; one hundred pounds have been paid to me by my son. The other two hundred pounds shall be settled with him after my decease, on account of his portion.</p> <p>“ It is my will, that my son-in-law, Leonard Hisley, shall receive fifty pounds, in advance, because he has not received from me as much as the other children have; and these fifty pounds shall be paid by my herein after named executors, to him the said Leonard Hisley, his heirs, or attorney, as soon as sufficient money is in their hands.</p> <p>“It is further my will, that all the rest of my property shall be sold by my executors, and, as much as possible, equally divided among my four children, Frederick App, Michael App, Leonard Hisley, and Henry Dreisbach.”</p> <p>The plaintiff, having proved the execution of the article of agreement of the 18th of November, 1780, referred to in the will, offered the same in evidence; to which the defendant’s counsel objected, on the ground, that it was irrelevant, and not material to the issues trying. The court, however, overruled the objection, and permitted the instrument to be read in evidence. The defendants’ counsel thereupon tendered a bill of exceptions.</p> <p>An exemplification of an account, settled by Frederick App, one of the executors of Michael App, deceased, before the register of Northampton county, on the 8th of May, 1813, having also been offered in evidence by the plaintiff, was objected to by the defendants’ counsel, but admitted by the court, who sealed a second bill of exceptions.</p> <p>The defendants then gave in evidence three receipts, given by Henry Dreisbach to Frederick App, one of the defendants, one of them dated the 13th of November, 1809, for ten pounds seven shil* lings and nine-pence; another, dated the 11th of November, 1815, for twenty-seven dollars and twenty-six cents; and the third, dated the 11th of November, 1815, for ten dollars; it being admitted, that the last mentioned receipt was for so much received in full for any monies which might be recovered on the bond of Jacob Eyerly, mentioned in the administration account as a lost debt. They also gave in evidence two receipts, proved by the deposition of Mathias App, which, translated from the German, ran thus:—</p> <p>“The 26th of August, 1803,1, Frederick App, have fully set* tied with my father, Michael App, all what is unsettled, (or out* standing,) what was unsettled I have received in full. So much from me.</p> <p> "‘Frederick App. " "Witness,{Henry Dreisbach, Mathias App." </p> <p>“ The 26th of August, 1803,1, Michael App, have fully settled vvith my son, Frederick App, all what was unsettled (or outstand* ing>) what was unsettled I have received in full. So much from me.</p> <p> “Michael App. </p> <p>“ Witney 5 HenrV Dreisbach, witness, ‡ MatMas App,,</p> <p>The defendants then gave in evidence the record of the Orphans* Court of Northampton county, frbm which it appeared, that thé account, settled and filed in the register’s office on the 8th of May, 1813, was duly confirmed by the Orphans’ Court bn the 20th of August, 1813. In this account the sum of two hundred pounds, due from Frederick App to Michael App, was mentioned, but it was not introduced into the inventory, nor charged to the exe* eutors.</p> <p>For the purpose of rebutting the evidence adduced by the defen* dants, the plaintiff examined Robert Stewart, who testified, that about the year ÍS02, he, at the request of Michael App, the testa* tor, called on Frederick App, one of the defendants, and asked him Why he did not pay the old man, his father, his dowry, according to the agreement entered into between them: That Frederick re* plied, “he would not: That his father and brother, Mathias, had cheated him; he had lent his father one hundred pounds in good money, and they had made it all out of one load of rye meal, and paid him in continental money: That he could not pay the dower any further; for if he did, this good for nothing Philip Scholl\ would get it, and it would be of no use to the old people, or to any of them.” The witness then stated to Frederick App, that he had seen an instrument, by which he, Frederick App, was bound to pay the dower, and he ought to do it. Frederick App said he would not» The witness then told him, the old man had offered him one-half to collect it; and if he, Frederick Jlpp, said again he would not, he, the witness, would see how he could get it. Frederick Jlpp then said, if the old man would forgive what was back, he would pay it from that lime on. There were two or three years back, the witness thought. He told him, he expected the old man would agree to it. The witness added, that the old man did agree; he sent for his son, Mathias Jlpp, who came in from Selin’s Grove, and the witness understood they settled. He further stated, that it was twenty-one or twenty-two years since Henry Dreisbach moved away to the Genhessee country, in the state of New York, where he had lived ever since.</p> <p>The plaintiff also read in evidence the deposition of Mathias Jlpp, taken in this cause; and by consent, the court read the notes of Mathias JLpp’s evidence taken on the trial. The object of this evidence was, to show the nature of the transaction between the father and son; but as no part of it was returned with the record, it is impossible to state what it was.</p> <p>The evidence being closed, the counsel for the plaintiff, requested the court to charge the jury on the following points:—</p> <p>“ 1. That the sum of two hundred pounds, directed by the testator in his will, to be reckoned up, or to be accounted for by his son, Frederick Jlpp, after the testator’s death, was not an advancement to the said Frederick Jlpp, in as much as the testator did not divest himself of all property in the same, in his life time, but made a disposition thereof by his will.</p> <p>. “2. That the circumstance of the testator having made Frederick Jlpp, (his debtor,) his executor, is not an extinguishment of the debt; the executor in such case, being a trustee for the parties interested in the estate, and accountable in equity, for the debt due by him.</p> <p>“ 3. That this suit having been brought for a share of the residue of the estate of the testator, bequeathed by the will, it was right and proper to join both the executors, they having both proved the will.</p> <p>“ 4. That the plea of non assumpsit infra sex annos, cannot avail the defendants, they being considered as trustees for the next of kin, of whom the plaintiff is one, and the statute of limitations does not apply in cases of trust.</p> <p>"5. The court are requested further to charge the jury, that in a suit for, a legacy, if the jury are satisfied that the executors have received assets sufficient to satisfy and pay all debts and legacies, the law will imply a promise on the part of the executors to pay, and it is not necessary to prove an express promise.”</p> <p>The defendants’ counsel submitted to the court the following propositions, on which they requested the jury might be instructed:—</p> <p>" 1. That unless it appears that Frederick Jlp>p and Ludwig Kleppinger, have both actually received monies of the estate, to a share of which the plaintiff would be entitled under the will of Michael App, deceased, the plaintiff cannot maintain this action.</p> <p>“ 2. That if the jury believe, the two hundred pounds, mentioned in the will, were intended by the testator as an advancement to Frederick App, no part of that sum can be recovered from the defendants.</p> <p>“ 3. That if the plaintiff’s wife has been advanced by the testator, the plaintiff must bring that advancement into account, as so much of her portion of the estate under the will.</p> <p>“4. That the appointment by a testator, of his debtor, to be an executor, is'at law a release of the debt; and if Frederick App were indebted to the testator in the alleged sum of two hundred pounds, he could only be held answerable for it in the settlement of his accounts in the Orphans’ Court; and as he is not charged with it in his account, settled before the register, on the 8th of May, 1813, and confirmed in the Orphans’ Court of this county, on the 20th day of August, A. D. 1813, he cannot be made answerable for it in this action.”</p> <p>Answers of the court to the points propounded by the plaintiff’s counsel:—</p> <p>“ 1. It appears, that on the 18th day of November, 1780, Michael App, the testator, and Frederick App, one of the executors, entered into a contract for the sale, by the former to the latter, of a tract of land, for the consideration of three hundred pounds, to be paid by Frederick App to Michael App; one hundred pounds of this consideration money, it seems conceded, were paid, and the article of agreement states, ‘ and the residue of two hundred pounds, he, Frederick App, is to account for after the decease of his said father, Michael App. ’</p> <p>“In the will of the testator, he says, ‘I have sold to my son, Frederick App, a piece of land, lying in Lehigh township, Northampton county, as per agreement, made the 18th day of November, in the year 1780, for the sum of three hundred pounds. One hundred pounds were paid to me by my son, Frederick App; the other two hundred pounds shall be settled with him after my decease, on ac* count of his portion.’</p> <p>“ The defendant alleges, that these two hundred pounds were settled by him with the testator in 1803, at the time the receipts, proved by the deposition of Mathias App, were given; and, that Mathias App proves, that the alleged two hundred pounds were only an advancement.</p> <p>“ If the testator did intend this sum as an advancement to his son, and the son also so understood it, it must be so considered in the decision of the cause, and what was the understanding in relation to this, the jury will decide from the evidence. They are the proper judges of the facts. From the article of agreement, and the will, independent of the parol evidence, the inference is very strong,. that these two hundred pounds were considered as an advancement, and if the testator so declared it by his will, it was a good advancement in law.</p> <p>“ 2. The naming a debtor executor, and his acceptance of the trust, do not extinguish the debt. He has always been held a trustee in Pennsylvania, as soon as he takes upon himself the execution of the will, to the amount of his debt. He has actually received so much money, and is accountable in his personal character, to those legally entitled to it, as the same hand is to receive that is to pay. There is no ceremony to be performed in paying the debt, and no mode of doing it, but by considering the money to be in his hands.</p> <p>“ 3. The court admit, that the suit has been correctly brought against both the executors, but if both have not jointly received assets, they are not jointly liable, each being liable for his own acts; and in this case, there is no proof, that Ludwig Kleppinger ever received any part of the estate into his hands, or in any way made himself liable for any part of it.</p> <p>" 4, The plea of non assumpsit infra sex annos, does not. apply to cases of legacy or trust.</p> <p>“ 5. In suits for legacies, when the jury are satisfied, that the executors have received assets sufficient to pay and satisfy all debts and legacies, the law will imply a promise on the part of the executors; and no express promise is necessary to charge them, and of course, where they have not received such assets, no promise can be implied.”</p> <p>Answers to the points propounded by the defendants’ counsel::—</p> <p>“ I. Unless it appears, that Frederick Mpp and Ludwig Kleppinger, have both actually received monies of the estate, to a share of which the plaintiff would be entitled under the will of Michael Jlp'p? deceased, the plaintiff cannot maintain this action.</p> <p>“2. If the jury believe the two hundred pounds, mentioned in the will, were intended by the testator as an advancement to Frederick Jlpp, no part of that sum can be recovered from the defendants.</p> <p>“ 3. If the plaintiff’s wife was advanced, she and her husband would, in case Michael Jlpp had died intestate, be obliged to bring the amount so advanced, into account; but they cannot be compelled to do so in this case, where there is a will disposing of all the property of the testator,</p> <p>“4. The appointment by a testator of his debtor, to. be an executor, is not a release of the debt, in Pennsylvania.’ In such case, the executor is considered a trustee, as explained in the second answer to the points propounded by the plaintiff’s counsel. He is accountable for it in his personal character, by a civil action, or by a settlement of his account in the Orphans’ Court. And although, .fee is not charged with it in his account, settled before the register on the 8th of May, 1813, and confirmed in the Orphans’ Court of this county, on the 20th of August, 1813, he can be made responsible by a civil action, the opposite party showing a clear mistake; such account is only prima facie evidence in favour of the executor settling such account, and is not conclusive. The opposite party-may show errors on the face of the account, and the jury would have a right to investigate those errors. If Frederick App, were indebted to the testator in the alleged sum of two hundred pounds, he would be held personally answerable for it by an action in this court, or by a proceeding in the Orphans’ Court in adjusting his accounts. Such settlement and confirmation would not defeat the present action. The court, at the same time, are decidedly of opinion, that Ludwig Kleppinger should not be charged with the whole, or any part of the two hundred pounds, if the jury believe he received no part of it.”</p> <p>> The defendants’ counsel excepted to the charge of the court, who' sealed a bill of exceptions.</p> <p>The jury found a verdict for the plaintiff for two hundred and forty-four dollars and thirty-one cents; and a motion made for a new trial on behalf of the defendants having been overruled, a writ of error was taken out, and the following errors assigned in this court;—</p> <p>“ 1. That the Court below erred in admitting in evidence the article of agreement, mentioned in the first bill of exceptions.</p> <p>■ “ 2. That the Court erred in admitting in evidence the copy of the administration account, as settled by Frederick App before the register, mentioned in the second bill of exceptions.</p> <p>“ 3. That the Court erred in charging the jury on the first point propounded by the plaintiff, and on the second point propounded by the defendants, and should have taken upon themselves to decide ■ the legal effect of the language used in the article of agreement and will, and charged the jury, that the two hundred pounds therein mentioned, were to be considered as an advancement.</p> <p>“4. That the Court erred in charging the jury on the second point propounded by the plaintiff, and third point propounded by the defendants, in regard to the law, where a testator makes his debtor his executor, and in regard to the manner of the liability of such executor.</p> <p>“5. That the Court erred in charging the jury relative to the statute of limitations, and its effect, and operation in this case, and also in regard to the law of advancements as applicable to this case.</p> <p>“ 6. That the Court erred in charging the jury, that in suits for legacies, the suit is correctly brought against two executors, where only one is liable for the money, and that this suit is correctly brought; no evidence having been adduced, that Ludwig Kleppinger ever received any money, or was liable for any.</p> <p>" 7. That under the evidence in the cause, no such action as that set forth in the plaintiff’s declaration, was maintainable; no monies having ever come to the defendants’ hands, belonging to the estate of the deceased.”</p> <p>“ 8. That there was no issue formed by the plea of the statute of limitations, and the replication and rejoinder thereto; or, if so, it was an issue as to the actual receipt of money by the defendants* which the plaintiff did not support by proof.</p> <p>“9. That the Court below erred in not setting aside the verdict* and granting a new trial. .</p>

<p>In determining whether a legacy is charged on the land, in case of a deficiency of personal estate, the whole will must be taken together.</p> <p>A legacy held to be a charge upon the land, from a view of. the whole will.</p> <p>An executor or guardian is personally liable for interest which actually comes into his hands, and which he neglects to put out, or pay over, according to his duty; but he is not liable for compound interest.</p> <p>Therefore, where a testator directed, that nine thousand dollars should be put out by his executors at interest, for the benefit of a legatee, who was to be supported, and educated out of the interest, and that the surplus interest should be kept out at interest until the legatee should attain the age of twenty-one years; Held, that the executors wete not personally liable for compound interest.</p> <p>If a testator has in his life time put out the money bequeathed, at fiveper cent., and it does not become due until after his death, the legatee is only entitled to five per tent, until the money becomes payable.</p> <p>And generally, if the testator directs money to be put out on land security, and no more than five per cent. Gan be obtained on such security, the executor is only answerable for the irte per cent, received.</p>

<p>This cause having been tried before Mr. Justice Tod, at Nisi Prius, where a verdict was rendered under his direction for the defendant, a motion was made on behalf of the plaintiffs for a new trial, which now came on to be heard.</p> <p>The facts given in evidence on the trial, as they appeared from a statement furnished by the counsel, were as follows:—</p> <p>“The defendant was one of the commissioners appointed to receive subscriptions to the Bank of the United States. The books were opened in July 1816, and after remaining open twenty days, a deficiency remained of three millions of dollars. The books were opened again on the 26th of August, and the defendant subscribed for the amount which remained.</p> <p>“ The plaintiffs allege, that they afterwards applied to the defendant for some of the shares (two thousand eight hundred and twenty-five,) which he had subscribed for, and he agreed to let them have them.</p> <p>“Part of the subscription was in funded debt of the United States. But the bank was not organised until the 4th of November, and this part of the subscription could not be paid by transfer, until subsequently to that day. The interest, therefore, of the United States’ loan, which became due on the 1st of October, was received by the individuals who still continued to hold the stock; and the defendant, on the 2d of that month, received the amount payable on his funded debt, subscribed to the bank, including that for the two thousand eight hundred and twenty-five shares which he had agreed to sell to the plaintiffs.</p> <p>“ On the 5th of November, the bank resolved, that the subscribers should be required to pay the interest on the United States loan, which became due since the 1st of July, 1816.</p> <p>“On the 7th of November, a resolution was adopted, to reconsider the resolution of the 5th. On the 25th of November, the resolutioa of the 5th of November, was rescinded; and, on the 7th of January, 1817, the cashier was authorised to return the interest to such subscribers as had paid it to the bank.</p> <p>“The amount received by the defendant, of interest, on the pro>portion of the United States’ stock, subscribed for the shares sold by him to the plaintiffs, was one thousand and fifty-nine dollars and sixty-seven and a half cents.</p> <p>“For the recovery of this sum the plaintiffs brought their suit by agreement to enter an amicable action, dated the 22d of November, 1822, and filed the 27th of November, 1822.</p> <p>The defendant pleaded non assumpsit, and non assumpsit infra sex a-nnos.</p> <p>The charge of the court was in favour of the defendant on the latter plea, and the verdict was given accordingly.</p>

Writ of error to the District Court for the city and county of Philadelphia, in a Scire Facias upon a claim filed by the defendants in error, under the mechanics’ lien law.

<p>This case came before the court on á writ of error to the District Court for the city and county of Philadelphia, where it was an action on the case, brought by the plaintiffs in error, Joseph Paul and Jonathan Wainwright, executors of Thomas Paul, deceased, against John Shallcross and Joseph Wilsonthé defendants in error, to recover damages for the breach of a written agreement, dated the 17th of February, 1824, for the sale by the plaintiffs to' the defendants of certain real estate.</p> <p>The cause was tried, and the jury found the following special verdict:—</p> <p>“ The jury find that the property was sold on the 17th day of February, 1824, by the plaintiffs to the defendants, by virtue of the following agreement:—</p> <p>“ Pursuant to the last will and testament of Thomas Paul, deceased, will be sold at public vendue, on Tuesday, the 17th of February, 1824, at 1 o’clock, P. M., on the premises, three, lots of land, with their appurtenances^ situate in Lower Lublin township, Philadelphia county, and village of Bustleton, on the turnpike road, eleven miles from Philadelphia.</p> <p>“ Lot, No. 1; Whereon is erected a large stone and frame tavern house, stone .stabling and frame sheds, two wells of good water, one of which has a pump in it.</p> <p>“ Conditions made known at the time of the sale, by</p> <p>‘‘JosephPaul . I Executors. “ Jonathan Waimoright, 5</p> <p>“ Feb. 2d, 1824.</p> <p>“ The conditions of sale of the real estate of Thomas Paul, deceased, are, one-half of the purchase money to be paid on the 1st day of April next, the remainder to be paid on the 1st day of April, 1825, with interest, to be secured by bond and mortgage on the premises. If the purchaser fails'to comply with the conditions of sale, the property will be sold again at the risk of the purchaser.</p> <p>Sighed, “ Joseph Paul, ' \ F , “ Jonathan Wainwright, ^</p> <p>“ Bustleton, Feb. 17th, 1824.</p> <p>“ Lot, No; 1. Seventeen hundred and fifty dollars.</p> <p>Signed, “ Joseph Wilson,</p> <p>“ John Shallcross.</p> <p>“ That the defendants failed to comply with their agreement, and on the 1.3th of May, 1824, the plaintiffs tendered to the defendants a deed duly executed for the property, and a bond and mortgage to be by them executed; but the defendants would not execute them, nor did they pay any part of the purchase money.</p> <p>“ That the property was readvertised for sale upon the 14th day of June, 1824, on account of the default of the former purchasers, and at their risk and expense.: that on the said 14th day of June, 1824, previously to such resale, the defendants entered into the following agreement, viz.—</p> <p>“ Will be sold at public vendue, on Monday the 14th of June, 1824, at two o’clock, P. M. on the premises, a tavern house and lot of land, with the appurtenances, situate in the village oí Bustle-ton, in Lower Lublin township, Philadelphia county, on the turnpike road, eleven miles from Philadelphia. The tavern house is large, part of stone and part of frame, with stone stabling'and frame sheds, two wells of good water, one of which has a pump in it.</p> <p>•N. B. — The above property is to be sold on account of the default of the former purchasers, and at their risk and expense; conditions made known at the time of sale, by</p> <p>“Joseph Paul, ? Executors to the estate of “ Jonathan Wainright,$ Thomas Paul, deceased.</p> <p>“May 27th, 1824.”</p> <p>“ Conditions of sale. — One-half cash on the 1st day of July', the balance in twelve months from this date,- with interest, and to be secured by a bond and warrant of attorney, and a mortgage on the premises. If the purchaser fails to comply with the conditions of sale, the property may be sold again at the risk and expense of the purchaser.</p> <p>“June 14th, 1824.”</p> <p>John Shallcross and Joseph Wilson, agree with the executors' as follows: — That they will take the above named property at their former purchase of one thousand seven hundred and fifty dollars; six hundred dollars to be paid on the 1st day of JLugust, upon which the deed is to be executed, and the balance to be secured by a bond and warrant of attorney, and mortgage on the premises, payable in one year, with interest: That the property shall be immediately insured in some insurance office in Philadelphia, at the expense of the said Shallcross and Wilson, and the policy deposited with the executors; and that one hundred dollars shall, within two weeks, be deposited in the hands of the executors, which one hundred dollars shall be forfeited in case these terms are not complied with. The expenses occasioned by their non-compliance, to be paid by the said Shallcross and Wilson.</p> <p> “John Shallcross, </p> <p>“ Joseph Wilson.</p> <p>“June 14th, 1824.”</p> <p>"At the same time, John Northrop entered security for the performance of the defendants, as follows, viz.—</p> <p>“ I engage that the above one hundred dollars shall be deposited within two weeks from this day.</p> <p>Signed, “John Northrop.</p> <p>“June, 14th, 1824.”</p> <p>“ In consequence of the said agreement, the contemplated sale did not take place. The plaintiffs tendered the defendants no deed or other paper, relating to the sale of the 14th of June.</p> <p>“The defendants did not payor deposit the one hundred dollars, nor insure the property, nor pay, or secure the purchase money, nor any part thereof; nor did John Northrop comply in.any respect with his engagement. The plaintiffs instituted a suit against Northrop to September Term, 1824, No. 456, and obtained judgment, but issued no execution.</p> <p>“ The plaintiffs advertised the property for sale on the 9th day of December, 1824, on account of the default of the former purchasers, and at their risk and expense, and sold it to John Dickinson for one thousand three hundred dollars. The expenses of the re-sale amounted to sixty-six dollars and ninety-two cents. The plaintiffs filed a paper, stating, that they had always considered the judgment against Northrop as a security for so much, and agreeing to release the same upon the payment of four hundred and fifty dollars, with interest and costs of suit. The jury find for the plaintiffs four hundred and fifty dollars, if the court should be of opinion, that in point of law upon the above-facts, they could recover that amount; and if not, for the plaintiffs one hundred and sixty-six dollars and ninety-two cents.</p> <p>The court entered judgment for one hundred-and sixty-six dollars and ninety-two cents, upon which the plaintiffs took out a writ of error, and assigned for error, that the court gave judgment for the plaintiffs for one hundred and sixty-six dollars and ninety-two cents, when they ought to have given judgment for-the plaintiffs for four'hundred and fifty dollars... . -</p>

On a writ of error to the Court of Common Pleas of Philadelphia county, it appeared that this action was originally brought before Justice Lotjghhead, by David Steioart against Charles Harlan, to recover the sum of thirty-five dollars. On the 22d March, 1826, the justice gave judgment for the plaintiff; on the 29th of the same month, the defendant appealed, and entered into the recognizance required bylaw. On the 30th of the following.

<p>On a writ of error to the Court of Common Pleas of Philadelphia county ^ the facts appeared to be these:—</p> <p>On the lst'of December, 1827, an action was commenced before Isaac Boileau, Esq'., a justice of the peace, by Undrew Vanderslice and others, the defendants in error, against Catherine Beidman and- Michael Faunce, and Elizabeth his wife, the plaintiffs in error, “on a plea of debt or demand arising on contract.” The claim was for goods sold and delivered. On the 26th of December, 1827, judgment was rendered for the plaintiffs, from which the defendants appealed to the court of Common Pleas, to March Term, 1828. On the 18th of Jlpril, 1828, the plaintiffs entered a nolle prosequi, as'to Elizabeth-Faunce, one of the defendants; and on the 11th of the following November took out a rule of arbitration. ' On the 3d of December, 1838, the arbitrators made an award in favour of the plaintiffs, from which one of the defendants, on the. 18th of the same month, appealed, paid the costs, and entered into the proper recognizance; but filed no affidavit as required by law.</p> <p>On the 20th of December, 1828, the plaintiffs obtained a rule on the defendants to show, cause why the costs paid in on the appeal, should not be taken out of court; and on the 27th of the same month, they took the costs out of court. No further proceedings were had until the 12th of January, 1S29, when the plaintiffs applied to the court for. a rule to show cause “ why the defendants’ appeal should not be dismissed for the want of an affidavit, on appealing.” This rule the court made absolute, and ordered the appeal to be dismissed.</p> <p>In these proceedings^ two errors were assigned: — ■</p> <p>1. 'That the entry of a nolle prosequi, as to orie of the defendants, vitiated the proceedings, and the-action, and judgment could not be sustained. - . . ’ '</p> <p>2. 'That the Court'of Common Pleas erred, in making-absolute the rule to dismiss the appeal, because the plaintiffs had waived the irregularity by receiving the costs, and by .delay.</p>

Writ of error to the District Court for the city and county of Philadelphia. The defendant in error was plaintiff below. After argument by Keenile for the plaintiff in error, and Brewster for the defendant in error, the opinion of the court, (in which the point decided is fully stated) was delivered by

<p>IN ERROR.</p> <p>A suit upon an administration bond, may be arbitrated under the act of the 20th of March, 1810.</p> <p>If a party appear by counsel before arbitrators, and do not object to the want of proof of the service of the rule to arbitrate, at the time of their appointment, he cannot avail himself of the objection, on a writ of error.</p>

Upon a writ of ei’ror to the District Court for the city and county of Philadelphia,'the case was this; — ■ A Scire Facias was issued against the defendants below, upon a claim filed in the office of the prothonotary of the District Court for the city and county of Philadelphia, on the 15th day oí November, 1817, in these words; — “Robert TV.

<p>A promise to pay a specialty debt, which has been discharged by a certificate of bankruptcy, does not revive the original .debt, as a debt by specialty. The original debt is merely a consideration, which renders the new promise available.</p>

This cause having been tried at Nisi Prius, a verdict was rendered on the 13th of February, 1829, in favour of the plaintiffs, for ten… Held: or claimed by the said association at the time of passing this act, shall be, and the same are hereby transferred to, and vested in the corporation hereby-created, absolutely and completely to all intents and purpose's; and the articles, rules, and regulations heretofore entered into by the said association, and not inconsistent with…

<p>Under the act of assembly of the 24th of March, 1812, incorporating tli township of Moyamensing, the three commissioners elect, are not competent to take part in deciding on the validity of their own election,</p> <p>It is illegal, under the provisions of that act, for the commissioners elect to be sworn in before their election has been returned and approved.</p> <p>Though the act of incorporation constitutes the commissioners whose term had not expired, judges of the election, and gives them full power and authority to approve thereof, or to set aside the same, and order a new election, as the law may require, yet, the superintending jurisdiction of the Supreme Court is not thereby ousted; but they may inquire into the legality of the proceedings of-the commissioners in setting aside an election, by granting an information in the nature of a writ of Quo Warranto.</p> <p>The commissioners have no right to set aside an election as to those persons who had a clear majority after deducting illegal votes.</p>

<p>APPEAL.</p> <p>A sale of real estate by an executor, indirectly to himself, in pursuance of a power in a will, is not a good execution of the power, but the executor takes the estate clothed with the same trusts to which it was subject in his hands previous to the sale; and it matters not whether the executor made advantage by his purchase or not.</p> <p>Such a sale is not void, but voidable. It may be ratified by those who are. entitled t'o call it in question; but a ratification by the heirs and devisees will not prevent the creditors of the testator from taking the land in execution as his estate..</p> <p>The act of the 4th of A/iril, 1797, limiting the lien of debts on the real estate of a decedent'to seven years; protects such estate only in the hands of a bona fide purchaser, and not in the hands of an executor, who has himself become the purchaser.</p>

In this case the petitioners prayed for a road to be laid out from the West Chester road, at the intersection of a road leading from the falls of Schuylkill, to intersect- the road leading from the borough of Chester to Germantown. The viewers laid out and reported a road according to the prayer of the petitioners, which report was set aside on the report of reviewers, that the said road was unnecessary.

Writ of error to the Court of Common Pleas.of Northampton county, in an action of replevin, brought by George Naux, the defendant in error, against Godleib Snyder, the plaintiff in error, for taking and unjustly detaining ten thousand chesnut rails, of the value of three hundred dollars, and three thousand chesnut posts, of the value of two hundred dollars.

<p>APPEAL.</p> <p>A joint bond cannot, as against a surety, be shown to have been made so by mistake, instead of a joint and several bond, by evidence dehors, unless the evidence leave no doubt, that a mistake, in point offact, has been committed, and the instructions of the parties departed from. '</p>

<p>This action, which was debt on a judgment, obtained in the island of Barbadoes, by the plaintiff’s intestate, against Susanna B. Polgreen, administratrix of Thomas B. Polgreen, upon whose estate letters of administration de bonis non were granted to the pre- ; ent defendant, by tbe register for the probate of wills, &c. for the ity and county of Phit.adelphia, was brought in this court to July Term, 1815.</p> <p>The case will be best understood from the pleadings. The decla■ation was as follows: — ,</p> <p>:cPhiladelphia.County, ss. •</p> <p>v ■ ££Of the Term of June, 1815, No. 34.</p> <p>££ JPbrahdm Bickley, administrator de bonis non of the goods ind chattels, rights and credits-which were of Thomas Bickley Pol-green, deceased, unadministered, was summoned to answer David Brodie, administrator of all and singular, the goods, and chattels, rights and credits, which were of Samuel Francis ' Lightfoot, deceased, at the time of his death, of a plea, that he render unto the ■said David Brodie the sum of twenty thousand dollars, lawful money of the United Slates, which .he unjustly detains from him, and whereupon the said David Brodie, by Benjamin Tilghman, his attorney, complains, for, that whereas the said Samuel Francis Lightfoot heretofore, to wit, at a Court of Common Pleas in and for the island of Barbadoes, and within the jurisdiction of the said court, on the 25th day of February, in the year of our Lord one thousand seven hundred-and-ninety-two,.by the consideration and judgment of the said court, recovered against the said Susanna. Dorothy Polgreen, administratrix of. all and singular the goods and chattels, rights- and credits of the said Thomas Bickley Polgreen, as well the sum of two thousand pounds current money of the said island of Barbadoes, which, in and by the said court, were then and there adjudged to the said Samuel Francis Light-foot, for the non-payment of a certain debt due upon a certain bond or obligation under áéal, made and executed by the said Thomas Bickley Polgreen, on the 5th day of fLugust, .in the year of our Lord one thousand séven hundred and seventy-two, to the said Samuel Francis Lightfoot, as also the sum of two thousand pounds, current money of the said. island of Barbadoes, for his costs and charges by him about his said suit expended in that béhalf, to the said Samuel Francis Lightfoot, by the said court, of his own assent, then and there adjudged, whereof the said Susanna Dorothy Polgreen, administratrix as aforesaid is convict,- which said judgment still remains in that court in full force and effect, in nowise satisfied or annulled. And the said David Brodie, in fact saith, that the debt, damages,' costs, and charges aforesaid, in form aforesaid recovered, are of great value, to wit, Qf the value of six thousand four hundred and thirty-two dollars, lawful money of the United ■States, to wit, at the county aforesaid: And that neither he, the said David Brodie, since the decease of the said Samuel Francis Lightfoot, nor the said Samuel Francis Lightfoot, during his life time, have obtained execution, or received payment of the said judgment, or any part thereof, from the said Susanna D. Polgreen, during her life time, or from ..the said Abraham Bickley, since the death of the said Susanna Dorothy. Polgreen, by reason whereof, an action has accrued to the said David Brodie, to demand and to have of and from the said Abraham Bickley, the said, sum of six thousand four hundred and thirty-two dollars, above named; nevertheless,-the said Abraham Bickley hath not, (though often requested,) paid the said sum of money, or any part thereof to the said Samuel Francis Lightfoot, during his life time, nor to the said David Brodie, since the death of the said Samuel Francis Lightfoot, (to which said David Brodie, after the decease of the said Samuel Francis Lightfoot, to wit; on the 8th day of June, Anno Domini, one thousand eight hundred and fifteen, administration of all and singular the goods and chattels, rights and credits, which were of the said Samuel Francis Lightfoot at the time of his death, who died intestate, was in due form of law granted by the register of wills for the city and county of Philadelphia,) but he, to do so, hath hitherto wholly refused, and still doth refuse, to the damage of the said David Brodie, twenty thousand dollars, and thereof he brings suit, &c. And.the said David Brodie brings here into court, the letters of administration aforesaid, &c.’’</p> <p>To this declaration, the defendant put in the following pleas, viz.—</p> <p>“1. And the said Abraham Bickley, for a further plea in this behalf, with the leave of the court first had and obtained, according to the form of the statute in such case made and provided, saith, that the said David Brodie ought not to have, and maintain his action aforesaid thereof, against him; because, he says, that the letters of administration granted to him, the said Abraham, were so granted by the register for the probate of wills, and granting letters of administration in and for the city and county of Philadelphia, to wit; on the 9th day of May, in the year of our Lord one thousand seven hundred and ninety-six; and that he had not, at any time, and has not now, any other letters of administration; and that he has not received, administered, or medd.led with any goods, chattels, rights or credits, which were of the said Thomas Bickley Polgreen, but such as' he might rightfully receive and administer, under the said letters: and he further says, that the letters of administration of the said Susanna Dorothy Polgreen, in the plaintiff’s declaration alleged, (and under which she was impleaded and sued, and under which she confessed the judgment in the said declaration alleged,) were not granted by the said register, nor by any register for the probate of wills, and granting of letters of administration within the commonwealth of Pennsylvania, nor by any register, or other officer, or person authorised to grant letters of administration in any state, district, or territory, within the United States, but that the same were granted in parts beyond the seas, out of the jurisdiction of the United States, and of the state of Pennsylvania, and out of the jurisdiction of all the states, districts, and territories of the United States, to wit; at the island of Barbadoes: without this, that any other letters of administration were ever granted to the said Susanna Dorothy Polgreen, and without this, that any other judgment, as the plaintiff in his declaration has alleged, was rightfully rendered: all which he-is ready to verify. Wherefore, be prays judgment, if the said David Brodie, administrator, &c. ought to have, or maintain his aforesaid action against him, &c.</p> <p>“2. And the said Abraham Bickley, for a further plea in this behalf, with the leave of the court, first had and obtained, according to the form of the statute in such case made and provided, saith, that the said David Brodie ought not to have and maintain his action aforesaid against him; because, he says, that heretofore, and before the letters of administration of the said Susanna Dorothy Polgreen, granted in the island of Barbadoes, and herein after mentioned, to wit; on the 14th day of May, in the year of our Lord one thousand seven hundred and ninety, letters of administration of the goods and chattels, rights and credits of the said Thomas Bickley Polgreen, were duly granted by the register for the probate of wills, and granting letters of administration in and for the city and county of Philadelphia, to one Adam Hubley, and afterwards, and after the death of the said Adam Hubley, to wit; on the 9th day of May, in the year of our Lord, one thousand seven hundred and ninety-six, letters of administration 'of the goods and chattels, rights and credits, of the said Thomas Bickley Pol-green, unadministered by the said Adam Hubley, were duly granted by the said register to the said Abraham Bickley, the letters of administration of the, said Susanna Dorothy Polgreen, granted in the island of Barbadoes, being then in full force; and that he, the said Abraham, had not at any time, and has not now, any other letters of administration; and that he has not received, administered, or meddled with any goods, chattels, rights or credits of the intestate, but such as he might rightfully receive and administer under the said letters: and he further saith, that the letters of administration to the said Susanna Dorothy Polgreen, in the said plaintiff’s declaration alleged, were not granted by the said register, nor by any register' for the probate of wills and granting letters of administration in the state of Pennsylvania, nor by any register, or other officer, or-other person authorised to grant letters of administration in any state,'district, or territory, within.the United States; but that the same were granted in parts beyond the seas, and out of the jurisdiction of the United States, and of the state of Pennsylvania, and out of the jurisdiction of all the states, districts, and territories of the United States, to wit; at Barbadoes: without this, that any other letters of administration were ever granted to the said Susanna Dorothy Polgreen; and without this, that any such judgment as the plaintiff in his declaration has alleged, was rightfully rendered: all which he is ready to verify. Wherefore, he prays judgment, if the said David Brodie, administrator, &e. ought to have, or maintain his aforesaid action against him,” &e.</p> <p>“3. And the said Abraham Bickley, administrator, &e. for a further plea in this behalf, with the leave of the court first had and obtained, according to the form of the statute in such case made and provided, saith, that the said David Brodie ought not to have and maintain his action aforesaid thereof, against him; because, he says, the letters of administration, granted to him, the said Abraham Bickley, were so granted by the register for the probate of wills and granting letters ofadministration in and for the city and county of Philadelphia, to wit; on the 9th day of May, in the year of our Lord one thousand seven hundred and ninety-six, and that he had hot, at any time, and has not now, any other letters of administration, and that he has not received, administered, or meddled with any goods, chattels, rights, or credits of the intestate, but such as he might rightfully receive and administer under the said letters: and he further says, that the letters of administration of the said Susanna Dorothy Polgreen, in tho said,plaintiff’s declaration alleged, were not granted by the said register, nor by any register for the probate of wills and granting letters of administration in the slate of Pennsylvania, nor by any register, or other officer, or other person authorised to grant letters of administration in any state, district, or territory, within the United States, but that the same were granted in parts beyond the seas, and out of the jurisdiction of the United States, and of the state of Pennsylvania, and out of the jurisdiction of all the states, districts, or territories of the United States, to wit; at Barbadoes: without this, that any other letters of administration were ever granted to the said Susanna Dorothy Polgreen; and without this, that any such judgment as the plaintiff in his declaration has. alleged, was rightfully rendered; all which he is ready to verify. Whereupon he prays judgment, if the said David.Brodie, administrator, &c. ought to have, or maintain his aforesaid action against him.</p> <p>“ 4. And the said Abraham Bickley, for further plea in this behalf, with leave of the court first had and obtained, according to the form of the statute in such case made and provided, saith, that the judgment in the said declaration alleged, so as aforesaid confessed, and rendered against the said Susanna Dorothy Polgreen, as administratrix of the said Thomas Bickley Polgreen, was not rendered under any letters of administration, granted by the register for the proffate of wills, and granting of letter^ of administration in- and for the city and county of Philadelphia, nor under any letters of administration, granted by any register, or other officer, or other person, authorised to grant letters of administration in the-commonwealth of Pennsylvania, or in any state, district, or territory in the United States; but that the said judgment in the said declaration alleged, was confessed and rendered against the said Susanna Dorothy Polgreen, under letters of administration, granted in parts beyond the seas, and out of the jurisdiction of the United States and of the state of Pennsylvania, and outpf the jurisdiction of all the states, districts, and territories of the United States, to wit: at the island of Barbadoes. Without this, that any other letters of administration were ever granted to the said Susanna Dorothy Pol-green; and without this, that any such judgment as the plaintiff in his declaration has alleged, was rightfully rendered; all which he is ready to verify. Whereupon he prays judgment if the said David Brodie, administrator, &e. ought to have, and maintain his aforesaid action.”</p> <p>To the first, third, and fourth pleas, the plaintiff demurred. To the second, he replied, “ that the said didam Hubley, administrator, &c. has not paid the debt or sum of money, in the declaration mentioned, either to Samuel Francis Lightfoot, during his life time, or to the said David Brodie, administrator, &c. since the death of the said Samuel Francis Lightfoot, but the same remains unpaid and due.”</p> <p>The defendant joined in the plaintiff’s demurrers, and demurred to his replication to the second plea. '</p>

<p>in error.</p> <p>The appeal given by the eleventh section-of the act of the 8th of March, 1815, incorporating the Schuylkill Navigation Company, from the report of appraisers, or a jury, assessing damages, is analogous to an appeal from the award of arbitrators, and is to be governed and regulated in the same man■ner. Consequently, if the company appeals, and obtains a reduction of the amount of the report, the complainant is not entitled to recover costs accruing since the appeal.</p> <p>But when the appeal is tried by a jury of an adjoining county, not bordering on the river Schuylkill, under the provisions of the supplemental act of the 1st of February, 1821, and the company succeeds in reducing the amount of damages reported by the first jury, they are bound to pay the costs of the jury brought from the adjoining county. .</p>

'• The president, managers, and company, of the Germantown and Perkiomen Turnpike Road, removed to this court the order of the Court of Quarter Sessions of the county of Philadelphia, dismissing the exception filed by them to the plan of the Third Division of the District of Kensington, together with the proceedings thereon.

The record of this case.having been returned on a writ of errob to the Court of Common Pleas of Lehigh county, accompanied by four bills of exceptions to the rejection of evidence, it appeared; that the plaintiff in error, John Stahl, brought án action in the court below against John Jarrett, the defendant in error, for money had and received, by the latter to the use of the former..