Volume 2 — Watts's Pennsylvania Reports

Daniel Rodebaugh brought this action against James Sanks, to recover the penalty of 50 pounds provided by the act of assembly, for marrying his minor daughter; When the plaintiff had established his cause of action, the defendant offered to prove “ that about a week previous to the marriage, when Hugh Frazier, he to whom the minor was married, was there, her father was at home, and treated him with respect and attention; that about that time, Rodebaugh, in conversation with…

John Cummin had sued George Wilson in the common pleas, and previously to filing a declaration or statement, he entered a rule of reference, which he did not serve upon Wilson. This action was then brought by Wilson against Cummin to recover the penalty for not serving that rule, in pursuance of the act of assembly; and the question was, whether the plaintiff could recover, there having been no declaration or statement filed when the rule was entered.

<p>In an action of assumpsit, it is competent for the defendant to show that the plaintiff had once transferred the note upon whjeh suit was brought to another person, who had sued it in his own name erroneously, and against whom a judgment was rendered in favour of the defendant.</p> <p>The form of a suit before a justice of the peace may be changed on an appeal, provided the cause of action remain the same.</p>

In 1824 the trustees of the Academy of the Protestant Episcopal Church of the city of Philadelphia entered into an agreement with Henry Erdly to sell and convey him a tract of land, upon which the purchaser paid 8 dollars. Erdly sold to James Frieze in 1826, and took and entered a judgment for the purchase money, 129 dollars 36 cents.

<p>ERROR to Susquehanna county.</p> <p>This was an action of slander by Franklin Lusk against William Thompson. The declaration contained four counts; the insufficiency of which was the assignment of error by the defendant below. The material parts of the declaration were: And whereas also before the committing of the several grievances by the said William Thompson, as in the first, second and third counts hereinafter mentioned, a certain action had been depending before Lyman Trow-bridge, a justice of the peace in and for the county of Susquehanna, wherein one Jacob M’Kinney was plaintiff, and one Charles White was the defendant; and which said action had been then lately tried by and before the said Lyman Trowbridge, then and there being such justice of the peace in and for the said county of Susquehanna, and on such trial the said Franklin Lusk had been, and was examined on oath, and had given his evidence as a witness, for and on the part and behalf of the said Jacob M’Kinney, to wit, at the county aforesaid. Yet the said William- Thompson, well knowing the premises, but greatly envying the happy state and condition of the said Franklin Lusk, and contriving, and wickedly and maliciously intending to injure the said Franklin Lusk in his said good name, fame, credit and reputation, and to bring him into public scandal, infamy and disgrace, with and amongst all his neighbours, and other good and worthy citizens of this commonwealth, and to cause it to be suspected and believed by those neighbours and citizens, that he, the said Franklin Lusk, had been and was guilty of perjury, and to subject him to the pains and penalties by the laws of this commonwealth made and provided against and inflicted upon persons guilty thereof, and to vex, harass, oppress, impoverish, and wholly ruin him the said Franklin Lusk, heretofore, to wit on the 24th day of October in the year of our Lord 1832, at Susquehanna county aforesaid j in a certain discourse which he the said William Thompson then and there had with the said Franklin Lusk, of and concerning the said Franklin Lusk, and of and concerning the oath and testimony of the said Franklin Lusk in the said cause or action theretofore depending and tried before the said Lyman Trowbridge, then and there being such justice of the peace of the said county of Susquehanna, in which action the said Jacob M’Kinney was plaintiff, and the said Charles White was defendant, in the presence and hearing of divers good and worthy citizens of this commonwealth, then and there in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke to and of and concerning the said Franklin Lusk, in substance, these false, scandalous, malicious and defamatory English words following, that is to say, “ you” (meaning the said Franklin Lusk) “ swore false” (meaning in the said action before the said Lyman Trowbridge, in which the said Jacob M’Kinney was plaintiff and the said Charles White was defendant) “ and are amenable to the laws for it” (meaning that he the said Franklin Lusk had committed perjury before the said Lyman Trowbridge in the said action, wherein he had been sworn and gave evidence as a witness, and was liable to conviction and punishment by the laws of this commonwealth for perjury).</p> <p>And whereas also, afterwards, to wit on the 24th day of October in the year of our Lord 1832, at Susquehanna county aforesaid, in a certain other discourse which the said William Thompson then and there had with the said Franklin Lusk in the presence and hearing of divers good ■ citizens of this commonwealth, he the said William Thompson, further contriving and intending as aforesaid, then and there, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published, to and of and concerning the said Franklin Lusk, and of and concerning the said oath and testimony of the said Franklin Lusk taken in the said action in the foregoing count mentioned, these other false, scandalous, malicious and defamatory English words following, that is to say, in substance, “ you” (meaning the said Franklin Lusk) “ yesterday swore positively” (meaning in the action in the first count mentioned) “that M’Kinney” (Samuel M’Kinney, meaning) “had done all in his power to collect a note, when you” (meaning the said Franklin Lusk) “ knew that M’Kinney” (meaning Samuel M’Kinney) “ had connived to keep a material witness away from court” (meaning a material witness in the action in the first count mentioned), he the said William Thompson then and there meaning and intending that the said Franklin Lusk, in his oath and testimony as a witness in the said action and trial in the said first count mentioned, had sworn and testified positively to what he the said Franklin Lusk then and there knew to be materially false, and was guilty of perjury.</p> <p>And afterwards, to wit on the day and year last aforesaid, at the county aforesaid, in a certain other discourse which he, the said William Thompson, then and there had with the said Franklin Lusk, and in the presence and hearing of divers other good citizens of this commonwealth, of and concerning the said action before Lyman Trowbridge, being such justice of the peace in and for said county of Susquehanna, wherein said Jacob M’Kinney was plaintiff, and the said Charles White was defendant, in which action the said Franklin Lusk was sworn and examined as a witness on the part and behalf of the said plaintiff, and of and concerning the oath and testimony of the said Franklin Lusk in the aforesaid action in the first and second counts mentioned, he the said William Thompson further contriving and intending as aforesaid, then and there, in the presence and hearing of the said last mentioned citizens of this commonwealth, falsely and maliciously spoke and published to, of and concerning the said Franklin Lusk, and of and concerning his said oath and testimony as a witness in the said action in the said preceding counts mentioned, these other false, scandalous, malicious and defamatory English words, ’in substance following, that is to say, “you” (meaning the said Franklin Lusk) “swore false,” (meaning that the said Franklin Lusk had' sworn falsely and perjured himself in the said last mentioned action before Lyman Trow-bridge) “ and 1” (the said William Thompson meaning) “ do not fear your action” (meaning and intending that the said Franklin Lusk was guilty of perjury; and that if he, the said Franklin Lusk, should thereafter sue for the supposed slander, that he, the said William Thompson would prove him, the said Franklin Lusk, guilty of perjury).</p> <p>And afterwards, to wit on the day and year last aforesaid, at the county aforesaid, in a certain other discourse which the said William Thompson then and there had with divers good and worthy citizens of this commonwealth, of and concerning the said Franklin Ldislc, and of and concerning his oath and evidence in the trial of the said cause, in the first count mentioned, as a witness, he, the said William Thompson, further contriving and intending as aforesaid, then and there, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said Franklin Lusk, and of and concerning his oath and evidence as a witness in the action in the said first count mentioned, these other false, scandalous, malicious and defamatory words, in substance following, that is to say, “ I” (the said William Thompson himself meaning) “have made the charge against him” (meaning the charge of perjury), “ and I” (the said William Thompson himself meaning) “shall go on with it” (meaning and intending that the said Franklin Lusk was guilty of perjury, and that the said William Thompson had charged the crime of perjury upon the said Franklin Lusk, and that he, the said William Thompson would not retract it).</p> <p>By means of the committing of which said several grievances by the said William Thompson as aforesaid, he, the said Franklin Lusk hath been ■ and is greatly prejudiced and'injured in his said good name, fame, credit and reputation, and brought into public scandal, infamy and disgrace, with and amongst all his neighbours and other good and worthy citizens of this commonwealth, insomuch that divers of those neighbours and citizens to whom the innocence and integrity of the said Franklin Lusk in the premises were unknown, have, on occasion of the committing of the said grievances by the said William Thompson as aforesaid, from thence hitherto suspected and believed, and still do suspect and believe the said Franklin Lusk to have been and to be a person guilty of perjury, and have, by reason of the committing of the said grievances by the said William Thompson as aforesaid,from thence hitherto wholly refused, and still do refuse, to have any transaction, acquaintance or discourse with him the said Franklin Lusk, as they were before used and accustomed to have and otherwise would have had; and the said Franklin Lusk hath been and is by means of the premises otherwise greatly injured, to wit, at the county aforesaid, to the damage of the said Franklin Lusk, as he says, 5000 dollars, and therefore he brings his suit, &c.</p> <p>The jury found a verdict for the plaintiff for 900 dollars damages; upon which a judgment was rendered.</p>

WRIT of error to Huntingdon county. This was an action of trespass by Dr Peter Shoneberger against Henry Rung and others, for prostrating and removing a stable and shed in the town of Petersburg. The defendants, or some of them, were officers of the corporation, and removed the buildings of the plaintiff, by authority of a resolution of the town council; and the question, therefore, turned upon the right of the defendants to remove them.

<p>WRIT of error to Tioga county.</p> <p>This was an action of ejectment for a tract of land, by Joseph P. Norris against Jesse Burdick, William K. Burdick and William Cowen. The plaintiff, in order to maintain the issue on his part, after having shown the title to have been in James Strawbridge, offered in evidence a certified copy of the record of a judgment in the circuit court of the United States, at the suit of Pearson Hunt against James Reed and others, executors of James Strawbridge deceased, which was there entered, in pursuance of an agreement by the defendants, on the 18th of February 1815, and which was in these words:</p> <p>“We agree that this action be entered in the circuit court of the United States, for the district of Pennsylvania, as of October sessions 1814, as though a scire facias had issued upon the mortgage upon which the action is founded, and that judgment be therein entered in favour of the plaintiff, for 25,959 dollars and 50 cents, with costs of suit. But the said judgment is not to be considered as an admission of assets.”</p> <p>This record contained a copy of the levari facias issued on this judgment, which included the land in question. The evidence was objected to, and the objection was overruled by the court, and the counsel of the defendant requested the court to instruct the jury oh this point: “that the record of the judgment, in the court of the United States, is not a judgment against the land in question; and that-the proceedings on that judgment, as given in evidence, could not transmit any title to the land in question, to the purchaser at marshal’s sale; and therefore no title is traced to the plaintiff.”</p> <p>The court below was of a different opinion and so instructed the jury, who, accordingly, found a verdict for the plaintiff.</p> <p>The admission of the evidence was assigned for error.</p>

The following facts appeared in the case of a scire facias to revive a judgment. Held: and the real estate of Matthias Gist was extended.

This was an action of trespass by Hanover Barney and Caleb A. Townsend against Samuel Sutton, in which the parties agreed to consider the following facts as a special verdict: That the plaintiffs… Held: that the certificate issued to one of the parties was conclusive between them. In the case of Sat’terlee v. Matthewson, 13 Serg. Sg Rawle, the land in controversy, it is believed, did not in fact lie within the seventeen townships.

<p>ERROR to Northumberland county.</p> <p>This was an action on a joint bond of indemnity by Horton and wife against John Cook’s administrators, in which the defendants’ plea was, covenants performed with leave, &c. William P. Brady was a co-obligor in the bond with John Cook, and was still alive, as was proved on the trial. The defendant relied upon this as a defence, and also upon proof of satisfaction. The plaintiffs requested the court to charge the jury, that they were not barred from a recovery, on the ground that the bond was joint and not several. To which the court answered : “ the bond is a joint obligation; John Cook was deceased before the institution of this suit; William P. Brady is living, and the action should have been brought against him as the surviving obligor, and cannot be maintained against the administrators of John Cook, unless William P. Brady is notoriously insolvent : whether he be so or not, is a fact for the jury; if he be, this action can be maintained ; if he be not, but able to pay, this action cannot be maintained.”</p> <p>The jury found a verdict for the defendant.</p>

<p>The render of service, in pursuance of a contract of hiring, gives a legal settlement to the person hired, so as to charge the township where the parties reside with his maintenance, when he becomes chargeable : and to constitute such a contract, any declarations, or acts of the parties, which evince their assent to an agreement expressed at the time, is sufficient; a precise and formal stipulation being unnecessary.</p> <p>An informality in the proceedings of justices to remove a pauper, cannot be taken advantage of, after an appeal to the quarter sessions, and decision there on the merits.</p>

<p>If a creditor, by any contract which can be enforced against him at law or in equity, gives time to his debtor, he discharges the surety.</p> <p>A judgment, being alien on the land of a freeholder, takes away that right of freehold which entitles the possessor to a stay of execution on a judgment before a justice of the peace.</p> <p>The acceptance of a judgment before a justice of the peace by the payee of a note, against a principal payer upon whose freehold there are liens, with á stipulation that he shall be entitled to a stay of execution, is a release of a surety in that note.</p> <p>ERROR to the common pleas of Cumberland county.</p> <p>This was an action by David Creps against John Clippinger,.copromisor with John Cring in a joint and several note.</p> <p>The defence was, that after the note became due, the plaintiff David Creps, and John Cring the principal (John Clippinger being a surety) went before a justice of the peace, and Cring there confessed a judgment for the amount of the note, with a stay of execution for one year. That at that time Cring’s freehold was incumbered by a mortgage in favour of John Clippinger to an amount equal to its value.</p> <p>The defendant requested the court to charge the jury that these facts in law released the surety. To which they answered :</p> <p>“Admitting all the facts in this case, Creps took a judgment against Cring the principal in the note before justice Redett, on the terms prescribed by the law.</p> <p>“It was taken promptly by consent. The year’s stay of execution is allowed by law, and it would have required' a waiver on the part of the defendant to dispense with it. ' The holder of the note was only required to prosecute his claim in the ordinary way prescribed by law. He was not bound to any selection of any particular tribunal.</p> <p>“ The defendant, being a freeholder though incumbered, by the laws regulating the stay of execution before two justices, in this case, was entitled to a year. ' Suppose Creps had selected the common pleas in place of a justice of the peace: we know he could not have obtained judgments, adversely, within a year. Two modes of proceeding were presented to Mr Creps, either in court or before a justice. He selected the prompt and easy mode, and the one probably presenting to him the most likely means of recovery. If he was honestly mistaken, would such mistake release the bail 1 Surely not.”</p> <p>This answer was the error alleged.</p>

This was an action of assumpsit, in which Robert Lawton was plaintiff and James Reed was defendant. On the 23d of February 1833, James Clark obtained a judgment on the docket of Esquire Ramsey against William Harman, by the confession of the defendant, for 270 dollars.

This was an action by John Penn, Sen., who survived John Penn, Jun., against Samuel Alexander, Esq. and Frederick Watts, Esq., administrators de bonis non of James Hamilton, Esq., deceased, in which the parties agreed to consider the following facts in the nature of a special verdict.

This was an issue directed by the common pleas of Adams county, in which Peter Hamm was made plaintiff and Michael Dowdel, sheriff of York county, defendant, to try the liability of the defendant for the amount of a capias ad satisfaciendum directed to him, under the following facts. Previously to 1824, Jacob Hamm was indebted to Peter Hamm for money which, as security in a bond, he had paid for him, and to recover which a suit was pending.

<p>When a vendee is guilty of actual fraud in procuring a title to land, no title passes to him whether the sale be priyate or judicial.</p> <p>Where one enables himself to become a purchaser of land at a sheriif’s sale by the commission of a fraud, no title is vested in him by the sheriif ’s deed, and the former owner of the land may recover the same in ejectment without offering to refund to the purchaser the money which he had paid to the sheriff.</p>

<p>A judgment against a principal and surety, paid by the surety after the death of the principal and marked for his use, will not avail the surety as a defence to its full amount in an action by the administrator of the deceased upon notes given to the intestate in his lifetime, if it appear that the estate of the intestate is insolvent.</p>

IN the common pleas of Cumberland .county. This was a scire facias by the executor of Conrad Gees deceased, against Robert M’Elwaine, administrator of John Shannon deceased, and Robert Lusk, surviving executor of Hugh M’Elhenney deceased, with notice to Joseph M’Elhenney and other terre-tenants.

<p>A defendant, against whom a justice of the peace had rendered a judgment, entered an appeal, a transcript of which the justice promised to file in the common pleas, but which he did not do in time. Held, that the misconduct of the justice was not official, and such as would justify the court in sustaining an appeal entered after the first day of the next term.</p>

Debt on bond by Henry Slabaugh against William Sadler, co-obligor in a joint and several bond with William B. M’Grew.

Debt on bond by Peter Aurand against John K. Boyer, in which this agreement was made by the parties. “ We agree to refer the above action, under the act of 1705, to James L. Dunn and Samuel Baird as referees, with liberty, in case of disagreement, to choose an umpire; report tobe made by the next or any subsequent court of common pleas of Perry county, proceedings in said court to stay in meantime.

This was an action of ejectment by Abraham Kerns against Peter Swope and John King, in which, to maintain the issue on the part of the defendant, there was offered in evidence an exemplification of a deed from Joseph Wharton to the Bank of North America, taken from the records of Huntingdon count]7, together with a memorandum or agreement written at the bottom of the deed, purporting to have been signed by Joseph Wharton, and which was written under the acknowledgement, in…

<p>ERROR to Franklin county.</p> <p>This was an action by William Campbell against Nicholas Baker, to recover the price of certain grain sold and delivered. Nicholas Baker was the manager of John Doyle, who was conducting iron works, and in the course of business executed and delivered this paper to the plaintiff.</p> <p>“ I will come under obligations to pay William Campbell the amount of rye and corn at the time appointed.”</p> <p>“ For John Doyle,</p> <p>“ Nicholas Baker.</p> <p>“December 1st 1823.”</p> <p>The grain was delivered in the mill by the plaintiff, and used by John Doyle ; and this action was brought against Baker to recover on the above paper. The fact appeared upon the trial,'that soon after the date of the paper, John Doyle became insolvent, and went off. The court below (Thompson, president) were of opinion that the obligation bound the principal only, and not the manager; and so instructed the jury, who found a verdict accordingly ; and this was assigned for error.</p>

This was an action of assumpsit by William Moore against Samuel Galbreath for money had and received. The plaintiff and defendant had entered into an agreement to purchase of a third person several bonds, and had mutually contributed funds for that purpose. Upon the purchase having been effected, the bonds were assigned to Galbreath alone, who, the plaintiff alleged, afterwards recovered and received the money from the obligors.

The estate of Andrew Mitchell deceased was insufficient for the payment of his debts, and it was referred to auditor's to marshal the same among the creditors according to priority and preference. Legal notice of the meeting of the auditors was given, and claims were presented and the account drawn out by the auditors and presented to the orphan’s court.

This was an action of debt by Samuel B. Wright, administrator of Moses Leas deceased, against William Weakly, upon this note: “ Six days after date we, or either of us, promise to pay Samuel B. Wright, administrator of Moses Leas deceased, the sum of 95 dollars, without defalcation, value received.

This was a scire facias upon a judgment on a foreign attachment, by James Dennison against Samuel Nigh, garnishee of John Lutshaw, in which the question arose, whether a bequest to Mary, the wife of John Lutshaw, was the subject of a foreign attachment at the suit of his creditor.

This was an action of debt by Thomas Craighead, administrator of John Sterrett deceased, against Sterrett Ramsay and William Ramsay. ■ The cause was arbitrated, and an award made in favour of the plaintiff for 818 dollars. December 23d 1824, Sterrett Ramsay, one of the defendants, appealed and entered into the recognizance, with security, according to the act of assembly.

This was an action of account-render by John Dwen and Elizabeth his wife, late Elizabeth Hagan, against James Bredin.

This was an action by Robert M’Kinney against William Pier, on the following recognizance entered “into by him as bail of D. W. Jackson, who appealed from the judgment of a justice.

<p>ALLEGHANY county. Common pleas.</p> <p>This action was by Thomas Hind against Henry Holdship. The declaration charged the defendant with an assumption to pay a debt due by Patterson and.Lambdin to the plaintiff. One count laid the. consideration to be forbearance : another, an assignment by Patterson and Lambdin to the defendant Henry Holdship, for the benefit of their creditors.</p> <p>The substance of the proof upon which the plaintiff relied, was, that Patterson and Lambdin, being manufacturers and having many persons employed, failed, and desired to prefer the claims of their Workmen: that, at the time they made a general assignment of their property to Henry Holdship the defendant, Mr Patterson expressed a wish to prefer his workmen, but (hey were not preferred by t.he deed, in consequence of a promise of Henry Holdship, at the time, that “ the hands should be paid at any rate.” The plaintiff was one of them : he was not present when the promise was made.</p> <p>The court below was of opinion that the plaintiff was not entitled to recover, because there was no proof that the promise was in consideration of forbearance; and that a promise to a third person to pay the debt of another, was of no validity, unless the consideration therefor moved from the person for whose benefit it was made.</p> <p>These opinions were the subject of the assignment of these errors.</p> <p>1. The court erred in instructing the jury, that the assignment alleged could form no valid consideration for the promise of the defendant, unless the amount or value assigned was in the aggregate greater than the amount of debt and liabilities referred to in the schedule.</p> <p>2. In instructing the jury that the plaintiff could not avail himself of the defendant’s promise in his favour made to a third person, unless the consideration arose from himself: that if the consideration proceeded from the person to whom the promise was made, the person for whose use it is made cannot take any benefit from it.</p>

WRIT of error to Fayette county. The children of John Stidger deceased, presented a petition to the orphan’s court for a writ of partition and valuation of the real estate of their deceased father: the matter was proceeded in until an order to sell was granted, and a sale made to George Bently upon the condition, that one-third of the purchase money should remain in the hands of the purchaser, the interest of which should be paid to the widow annually.

This was an action by the commissioners of Cambria county for the use of the commonwealth against' Moses Canan, John Murray and James C. M’Guire, esquires.

This cause was at issue and called for trial; the plaintiff did not appear, and the court ordered a nonsuit. At a subsequent term, the plaintiff obtained a rule to show cause why the nonsuit should not he taken off, on the grounds that the plaintiff’s claim was meritorious, that he did not know that the cause was for trial, and that another action would be barred by the statute of limitation. The court refused the plaintiff’s motion.

Slander, by Jacob Bruce against John Cooper. In the plaintiff’s declaration the words set out were, “Jacob Bruce” (the plaintiff meaning) “ was guilty of buggary with a mare.” The proof of the words spoken by the defendant of the plaintiff was, that “ he had acted with a mare”—“ he had been guilty with a mare”—and that “ he could prove that Bruce was guilty of acting with a mare.” The defendant’s counsel asked the court to charge the jury, that this proof did not support the…

CRAWFORD county. ■ Common pleas. This was an action of replevin by Philip Mead against Daniel Kilday for a horse.

This was an action of assumpsit by John Anderson, administrator of John M’Farland deceased, against Robert T. Stewart. M’Farland, in his lifetime, was the editor of the “Alleghany Democrat.” The materials in the office were levied on an execution. After his death they were sold to Robert T. Stewart, the defendant, by the sheriff. Stewart purchased the establishment for the benefit of the widow.

<p>A return of survey is prima facie evidence of a survey on the ground, and no legitimate inference can be drawn from the fact that the deputy surveyor was not called as a witness to prove the fact.</p>

ALLEGHANY county. Common pleas. This was an action on the case by Allen and Grant against Scudder Hart and others, surviving partners of the steamboat Bolivar.

<p>Bills or notes of a third person, taken for a precedent debt, without a special agreement to the contrary, are not payment before the proceeds are received. Hence, the assignor of a bill, under such circumstances, is not a competent witness in an action for its recovery; he being liable for his own debt in the event of a failure to recover by the plaintiff.</p>

<p>The circuit court has not jurisdiction of criminal cases which originate in the mayor’s court of the city of Pittsburgh.</p>

Tliis was an action of ejectment by the executors of William Jack against Robert Harbeson and George Bearinger to recover a tract of land upon the following facts and circumstances. A warrant of 3d of March 1774 issued to Mary Graham for two hundred acres, on which a survey of two hundred and eighty-one acres was made and returned.

Replevin. Andrew Smith, the defendant in error, had recovered in ejectment against the plaintiff in error, John Powell, a tract -The court below was of opinion that the property belonged to and passed with the realty, but inasmuch as the defendant had severed it, it was personal so far as regarded, him and the right to maintain this action. The plaintiff recovered.

• This action was by John Kuhns, executor of Henry Isett deceased, against Thomas Hoge. William Johnston gave his note, under seal, dated the 2d day of ' May 1812, by which he promised to pay to Henry Isett, or order, 300 dollars, twelve months after date, with lawful interest from the date. Appended to the note is the following writing: “ I do hereby guaranty the payment of the above note to the said Henry Isett-. “ Thomas Hoge. “ Test.

<p>ERROR to Armstrong county.</p> <p>On the trial of this action, which was by the Commonwealth for the use of Samuel Hutchardson against Jacob Meckling, sheriff and his sureties, for an escape ; the plaintiff offered in evidence the docket of a justice containing the record of the judgment on which an execution had issued against the same Jacob Meckling, at the suit of Samuel Hutchardson, and offered also a receipt of Jacob Meckling for having received himself into custody, which was dated the 16th of July 1829. The evidence was objected to on the ground that, the same receipt was laid in the declaration as of the 18th of July 1829. The plaintiff then .asked leave to amend his declaration to make it correspond with the receipt; this the court refused, and rejected the evidence.</p>

ERROR, to Fayette county. This was an action which originated before a justice of the peace, 'to recover rent for the occupation of a messuage, &c. The form of the suit was, William Piper, agent for F. A. Vandalore against Nathaniel Graham. A declaration was filed in common form in the name of F. A. Vandalore as plaintiff: to which the defendant demurred, and the plaintiff joined in demurrer.

This was an action of covenant by William and James Foster for the use of James Mervin, against John M’Fadden, upon an agreement by which the said Fosters were to sell and convey to the defendant a certain tract of land and three lots. The defendant was to receive a deed on the 1st of May 1826, when he was to pay 300 dollars of the purchase money, and secure the residue.

This was an action on the case for defamatory words, in which James Wilkeson was plaintiff and Josiah Guy was defendant. The cause was arbitrated, and a report for the plaintiff for 6 cents damages, from which the plaintiff appealed and paid the costs of the defendant.

<p>An action may be maintained in the name of the holder of a note which is payable to bearer, although it be transferred after it become due.</p>

WESTMORELAND county. John Gallagher covenanted to convey to William Campbell a lot of ground for a certain consideration, a part of which was paid. Campbell paid a part of the purchase money, and tendered the balance, and demanded a deed, which Gallagher could not give to him because of incumbrances which existed upon the lot. Campbell pleased to rescind the contract, and brought this action before a justice of the peace to recover the money which he had paid on its account.

This was an action by the Westmoreland Bank of Pennsylvania against the administrators of John Kuhns deceased, upon a note of 5 th of March 1833, for 1530 dollars, of John Schaeffer to John Kuhns, and indorsed by him to the plaintiff, by whom it was discounted, and regularly protested for non-payment.

<p>Upon a contract for the delivery of specific articles of provision, the produce of a farm, an action can not be maintained for the recovery thereof without proof of a previous demand upon the obligor at the premises.</p>

This was a suit by the Monongahela Bank of Brownsville against Andrew Porter and William Griffith, who were indorsers of a note of James Tomlinson. In order to charge the defendants, it was necessary to prove a protest; and for that purpose, one made by Israel Miller, a notary public, was offered in evidence ; and objected to, on the ground that Mr Miller was a stockholder in the bank. The court overruled the objection and received the evidence.

<p>APPEAL by defendant from the circuit court of Dauphin county, held by Gibson, Chief Justice.</p> <p>• Benezer Hale, the plaintiff in this case, recovered a judgment againt George Capp and another, in the court of common pleas of Dauphin county, on the 29th of November 1830, for the. sum of 2500 dollars, with stay of execution for two years, and issued a fieri facias to November term 1832, which was levied on the undivided half of a lot. of ground and stable thereon, situate in Harrisburg. An inquisition was held, finding “ that the rents, issues and profits are of a clear yearly value, beyond all reprises, sufficient, within the space of seven years, to satisfy the debt and damages.” This, it was alleged by the plaintiff, was a mistake in drawing up the inquisition; the jury intending to return that they were not sufficient, and to condemn the property. A venditioni was issued to January term 1833, on which the property was sold to the plaintiff, who received a sheriff’s deed, on the 12th of February ensuing. The plaintiff, in November 1833,- instituted proceedings against the defendant, then 'in possession of the stable, before two justices, under the act of the 6th of April 1802, in order to obtain possession. The defendant claimed title in himself, different from that of Capp, and as not holding under him, and entered into recognizance with surety, conditioned to appear at the next court of common pleas, to prosecute his claim with effect.</p> <p>The proceedings being filed in the court of common pleas, the case was removed to the circuit court, where the plaintiff filed a narr., claiming to recover the undivided half part of a frame stable and lot of ground situate in Third street, in the borough of Harrisburg, adjoining property of Michael Burke, &c. The defendant pleaded not guilty, and issue was joined. In the circuit court a verdict was rendered in favour of the plaintiff</p> <p>It appeared that this lot of ground and stable were purchased by George ,Capp and Nathaniel Henrie, and a deed made to them as tenants in common, on the 10th of June 1829.</p> <p>Defendant offered to prove that Nathaniel Henrie, the defendant, and George Capp, the person as whose property the property in dispute was sold, were in partnership in the livery business in Harrisburg; that they purchased the said property out of the partnership funds for partnership purposes, and used it as such from the time of purchasing to the dissolution of the partnership ; that at the time of dissolution, the said property was left in the possession of the said Nathaniel Henrie, by the agreement of George Capp, for the purpose of discharging the partnership debts ; that the.said Nathaniel Henrie, by the agreement of himself and George Capp, was to settle the partnership accounts, and pay off the partnership debts; that the debts owing by the said firm of Capp and Henrie exceeded the amount of debts due the firm and the value of the property in dispute. ' And further, that the plaintiff Benezer Hale, before the time of taking his judgment against George Capp and James Murray, which has been given in evidence by the plaintiff had notice that the said property was so purchased by the said Capp and Henrie, and left in the possession of Henrie for the purposes aforesaid. The defendant further offers to prove, that George Capp, one of the defendants in the said judgment., which has been given in evidence, sold out an interest he had in his livery, in partnership with James Murray, to a certain Samuel Murray; that during the treaty between said George Capp and Samuel Murray, for (.he sale of said interest, Benezer Hale, the plaintiff, was present, and promised to Capp, that if he sold to Samuel Murray, he would take Samuel Murray for the debt due by him, the said George Capp, on the same judgment; and that in pursuance of the said agreement, the said George Capp, after the sale to said Samuel Murray, gave an order to the said Benezer Hale on Samuel Murray, which was taken by the plaintiff, Benezer Hale, in satisfaction of the debt due to him by George Capp by said judgment; on which this property in question was afterwards sold and purchased at sheriff’s sale, by plaintiff, Benezer Hale.</p> <p>This testimony was objected to by the plaintiff, and rejected; and the jury, by direction of the court, found a verdict for the plaintiff.</p>

This was an action of ejectment by Dr William Hays against John Henderson and Thomas Henderson, to enforce the specific execution of an agreement between John Henderson and Dr William Hays, by which the former sold to the latter one acre of ground. During the trial fourteen bills of exception to the rejection of evidence were taken by the defendants, and as many points put to the court upon which to instruct the jury ; all of which resolved themselves into two questions. 1.

, Ejectment by Joseph Hemmich against William High, to recover thirty-six acres and a hundred and fifty-four perches of land, which the plaintiff claimed as devisee under the will of his grandfather, John Hemmich deceased.

<p>ERROR to the district court of York county (Hayes, president).</p> <p>This was an action for a legacy by William M’Gaw against Alexander Thompson executor of Samuel M’Gaw. The will under which the legacy was claimed was proved in 1814; the executor settled his administration account in 1816, in which there was found a balance in his hands of 1524 dollars, with this memorandum, “ part not due.” This suit was brought to November term 1832. The pleas were nil debet and non assumpsit infra sex annos. On the trial, the defendant offered to prove that, the balance in his hands, upon the settlement of his account, was composed of bonds then due and unpaid, and which could not afterwards be collected because of the insolvency of the obligors. The court rejected the evidence, and the plaintiff recovered. Whether this evidence should have been received, and whether the statute of limitation is a good plea in an action for a legacy, were the questions argued in this court by</p>

This was an action in six single bills by John Stouffer and Jacob Stouffer against John. Latshaw., The pleas were, payment with leave, &c., duresse of imprisonment, and non est factum : upon which issues were joined.

(Durkee, president.) This was an amicable action in which Elizabeth Beard was plaintiff, and Jacob Deitz defendant, in which a special verdict was found, the facts of which gave rise to the question, whether the widow’s interest in land taken by the eldest son, at the valuation in the orphan’s court, under the intestate laws, was the subject of taxation under the act of the 25th of March 1831, assessing a taxon personal property.

This action originated before a justice of the peace, in the names of George Boyer and William Boyer, administrators of Michael Boyer deceased, against Eleanor Boyer, for goods purchased by the defendant, who was the widow of the plaintiff’s intestate, at the vendue.

<p>APPEAL by Sarah M. Cohen and others, heirs of Beliah Cohen deceased, from the decision of the orphan’s court of Lancaster county.</p> <p>The heirs of Beliah Cohen presented their petition to the orphan’s court, setting forth that Joseph Simon, by his last will and testament, appointed Levi Phillips, Leah Phillips and Beliah Cohen the executors thereof, of whom Leah Phillips alone survived; that they were interested in the estate of the testator, and the said Leah Phillips was mismanaging the same to their prejudice; and praying the court to award a citation to the said Leah Phillips to appear and show cause why she should not be removed from the office of executrix. Upon the return of the citation a motion was made on behalf of the executrix to quash it, on the ground that the orphan’s court had no power to dismiss an executrix, without offering her the alternative of giving security^ The orphan’s court did quash the citation, and the petitioners appealed.</p>

This was a writ of error to the court of common pleas of Lancaster county, in an action brought by John Townsend against Christian Kerns, John Kerns and John Leech. A verdict and judgment were rendered in favour of the defendants, and the case is now before this courton bills of exception to evidence, and to the charge of the court.

<p>ERROR to the common pleas of Juniata county.</p> <p>John Beale and P. M’Kennan, plaintiffs in error against Jacob Coon, defendant in error.</p> <p>The plaintiffs in error were a committee of Frederick Nipple, a lunatic, and as such sold his personal property to Jacob Coon, the defendant in error, and took his note therefor. They brought suit on this note, to which Coon made defence, and the court permitted him to set-pff a debt due by Nipple, the lunatic, to him, and the jury certified a balance in favour of the defendant. The defendant then issued a scire facias against Beale and M’Kennan, to appear and show cause why execution should not issue against them for that amount, to which the defendants pleaded nul tiel record, and the court rendered a judgment for the plaintiff Coon.</p>

<p>ERROR to the common pleas of Mifflin county.</p>

<p>CERTIORARI to the quarter sessions of Dauphin county.</p> <p>There were applications by thirteen individuals for the appointment of viewers in each case, to assess damage done to each of their lands, by reason of the construction of the Pennsylvania Canal. A report was made in all the cases against the commonwealth, who filed exceptions thereto, which were overruled by the court below, and the records were then removed into this court by certiorari. The exceptions taken and argued are accurately stated by his honour, who delivered the opinion of the court.</p>

THIS case came up by writ of error from the court of common pleas of Cumberland county, in which the plaintiff in error, James Stewart, who was defendant below, was sued by writ oí scire facias, issued from the court of common pleas of that county, on a recognizance taken in the orphan’s court of the same county, for securing a sum of money to Eleanor Martin, late Eleanor Stewart, in lieu of dower.

<p>ERROR to the common pleas of Lebanon county.</p> <p>This was originally an action of debt on three joint and several bonds, in which the executors of John Walter were plaintiffs, and John Kuntz and Peter Ginrich were defendants, Kuntz being a principal debtor and Ginrich a surety. While the action was pending, Kuntz confessed a judgment, and soon after Ginrich died, and a scire facias issued to his executors to make them parties to the original action. The executors defended upon the ground that the death of Ginrich discharged the assets of his estate from further liability; and the court (Blythe, president) being of that opinion, directed a verdict and judgment for the defendants.</p>

<p>A purchaser of real estate from one who holds different tracts of land is not bound to retain out of the purchase money the amount of a judgment which was a lien on the lands, if the other lands of the vendor be sufficient to pay such judgment. And if the plaintiff in such judgment levy on the land thus sold, and the purchaser pay it and take an assignment of it, he may recover the same out of the other lands of the vendor, in preference to another who obtained his judgment against the same defendant subsequently to the date of the purchase.</p> <p>If the land were purchased subject to such judgment, or the price reduced in consequence of its existence, such assignment to the purchaser would be invalid, and he would not be entitled to have the proceeds of the sale of the other lands in preference to other judgment creditors.</p>

<p>In an action against an executor in bis representative character, by a legatee to recover a legacy, the defendant may appeal from an award of arbitrators without the payment of costs.</p> <p>The only-effect of the settlement of an administration account in the orphan’s court is, to show the balance of assets in the executor’s hands after the payment of debts and charges, and can have no bearing upon the amount due to legatees, or to repel presumption of the payment of a legacy which arises from lapse of' time.</p> <p>After a lapse of twenty years, all evidences of debt, excepted out of the statute of limitations, are presumed to be paid. Within the twenty years, the onus of proving payment lies in the defendant: after that time, it devolves on the plaintiff to show the contrary.</p> <p>The rule in regard to the statute of limitation, that when time has begun to run, it suffers no interruption from the occurrence of circumstances that would otherwise prevent its application, does not apply to the case, of a legal presumption from lapse 'of time.</p> <p>A citation to executors, to appear in the orphan’s court and settle their administration account, issued at the instance of the legatee, within twenty years from the time a legacy becomes payable, is a claim of such legacy' by legal proceeding, and a bar to the presumption of payment.</p> <p>The death of a feme covert legatee, whose husband survived her, and that no administration was taken upon her estate, are not such facts as will repel the presumption of payment of the legacy which arises from lapse of time.</p> <p>Though the recovery of a legacy payable upon the death of the testator may be barred by lapse of time, yet a residuary bequest in the same -will, legally prosecuted, within twenty years, may be recovered.</p>

Ejectment for a tract of land in Tyrone township, by William Power against C. Hollman. The plaintiff gave in evidence an application by Michael Kinsloe, a warrant and survey of the land in dispute, and a deed, dated 6th of April 1811, by Michael Kinsloe to William Power.

The style of this action was, Adam B. Kyle, trading in the name of Dinsmore and Kyle, indorsees of William Barber and Sampson Mullen, trading in the name of Barber and Mullen, against George Ege et al. Statement filed setting out the note, its date, amount and time of payment; also stating the transfer by indorsement as follows, viz. “Which said note was indorsed by the said William Barber and Sampson Mullen, on the 3d of January 1832, and thereby made payable to Adam Kyle,…

Replevin by Peter Gloninger against Maria Buehler, William N. Irvine and Peter Keller. George Buehler purchased the goods for which the replevin was brought, and gave his notes for them, with Peter Gloninger, the plaintiff, and George Oves as his securities.

<p>An equitable right to set-off judgments is permitted only where it will infringe n no other right of equal grade; consequently it is not permitted to affect an suitable assignee for value.</p> <p>An irregularity in the assignment of a judgment cannot be taken advantage of by a third person if the assignor make no objection to it.</p> <p>When a set-off has been established for more than a plaintiff’s demand, and the jury certify to the court a sum to be due to the defendant; such finding is not a lien on the defendant’s real estate: it can be made so only by judgment on a scire facias.</p> <p>An inquisition, in case of escheat, which does not find that the decedent died intestate, and without heirs or any known kindred, is a nullity; and a transcript of such finding is not a lien on the lands .of him in whose hands the estate is found to be.</p> <p>A mechanic’s claim, which had not been filed within six months from the time of the completion of the building, and no action brought upon it, is not a lien.</p> <p>He who may at law control the application of two or more funds, shall not be suffered to use his legal advantages in a way to exclude the demand of a fellow creditor whose legal recourse is restricted to but one of them.</p> <p>A bank having a judgment against one of its stockholders, upon a sale of his real estate, is entitled to have out of the proceeds the amount of their judgment; but other judgment creditors, who are thereby deprived of their money, are entitled to be substituted to the rights of the bank, so as to enable them to levy and sell the bank stock of their debtor.</p>

<p>ERROR to the common pleas of Cumberland county.</p> <p>Thompson Brown, assignee of Thomas Gallagher and Henry Fahnestock, who were assignees of Barnet Aughinbaugh and John Clippinger against Barnet Aughinbaugh, administrator of Adam Snoddy deceased, and William Simpson terre-tenant.</p> <p>Previously to the 11th of July 1817, Adam Snoddy was the owner of a tr-act of land which on that day he mortgaged to B. Aughinbaugh to secure the payment of several bonds of 1333 dollars 33 cents each payable on the 1st of April of each year thereafter. On the 18th of June 1818, B. Aughinbaugh, together with John Clippinger, assigned the bond due the 1st of April 1819, to Fahnestock and Gallagher, and guarantied its payment. On the 24th of December. 1818, they assigned it to Thompson Brown, who on the 23d of July 1819, obtained a judgment thereon in the common pleas of Cumberland county against Adam Snoddy, with a stay of execution for nine months. On the 22d of December 1824, and to January term 1825, a scire facias was issued against B. Aughinbaugh, administrator of Adam Snoddy, to revive this judgment, upon which judgment was obtained on the 19th of August 1830, and a fieri facias issued, and was levied on the land originally mortgaged: a venditioni exponas was issued, when William Simpson came in and prayed the court to open the judgment and let him into a defence as to the alleged lien, which was ordered by the court.</p> <p>The foregoing facts having been given in evidence on the trial, the terre-tenant, William Simpson, then gave in evidence a judgment of the Carlisle Bank against Adam Shoddy, obtained on the 1st of June 1819, on which a fieri facias was issued and levied upon the same land, and which was afterwards, on the 10th of August 1820, sold on a venditioni exponas to B. Aughinbaugh for 40 dollars, subject to the mortgage, and the sheriff’s deed was so made. After this the Carlisle Bank obtained a judgment against B. Aughinbaugh, on which a fieri facias was issued and levied on this land, and on the 21st .of July 1824 the defendant, B. Aughinbaugh, agreed to waive inquisition, and that the land should be sold on the 12th of August 1824 without further suit; and it was so sold, and the deed made and acknowledged on the same day to Dr John Simpson, for 3050 dollars. The defendant then further gave in evidence the death of Dr John Simpson, and that his estate was, by a proceeding in partition in the orphan’s court, vested in his son, William Simpson.</p> <p>The plaintiff then gave in evidence judgments of the Carlisle Bank and of Dr John Simpson against B. Aughinbaugh, obtained previously to 1824, and then proved by parol that the alleged judicial-sale of the'land to Dr Simpson originated in a private agreement between B. Aughinbaugh and Dr Johu Simpson, by which the land was sold for 6000 dollars ; 3000 dollars of which was to be paid to the Carlisle Bank in discharge of their judgments against B. Aughinbaugh, by an assignment of stock to that amount, which Dr Simpson had in the bank, and the balance of the purchase money was to be applied to the discharge of the judgments of Dr Simpson against B. Aughinbaugh, all of which were obtained in May 1824, and this arrangement was carried into effect through the medium of a sheriff’s sale for the purpose of making title. The principles raised in the case are exhibited in the following points.</p> <p>, Plaintiff’s points; *</p> <p>1. The court are requested to charge the jury that the assignment of the bond on which judgment was entered, made 18th of June 1818, and subsequent assignments of said bond, transferred so much of the mortgage as was given to secure that bond to the assignee, and that the sheriff’s sale made to Mr Aughinbaugh on the judgment of the Carlisle Bank being expressly subject to the lien of the mortgage, did not divest the land from the lien of the said mortgage so far as respects said bond and the judgment, entered upon it.</p> <p>2. That if the jury believe that A ughinbaugh made a private sale to Dr Simpson of the same land for 6000 dollars, and that the sheriff’s sale to Dr Simpson was on a fieri facias, and for 3100 dollars, and a mere contrivance to make the title, and the said 6000 dollars nor any part of it was brought into court for appropriation, but that the same was arranged between the parties by Dr Simpson’s transferring his stock to Mr Aughinbaugh and entering satisfaction on the judgment which he had against said Aughinbaugh, that then the said sales so made, &c. does not divest the lien of the said mortgage, bond and judgment, so far as respects said bond and judgment, and the plaintiffs would be entitled to recover. .</p> <p>3. That if the jury believe that there was a private sale to Dr Simpson by Aughinbaugh for 6000 dollars, and the sheriff’s sale was a mere contrivance to make the title, and the bid was made of 3100 dollars, less than the purchase money agreed on, to make the appropriation out of that purchase money out of court, so that it might be used to divest the interests of the parties and to prevent the same from being applied according to law to the payment of the plaintiff’s mortgage, bond and judgment, such contrivance was a fraud upon the plaintiff and would not divest his lien, and he would be entitled to recover.</p> <p>4. The mortgage being of record, and expressly referred to in the deed of the sheriff to Aughinbugh, Dr Simpson is presumed in law to have had full notice of it, and the debt due to the plaintiff secured by it and the judgment entered thereon. And when a sheriff’s sale is made under an agreement between a seller and buyer merely for the purpose or as a mode of making the title, and the purchase money is not brought into court for appropriation but is arranged between the parties under their agreement, such sale has no other effect than a private sale, and does not divest the lien of judgment.</p> <p>5. If the jury believe that an agreement was made between Dr Simpson and Aughinbaugh for the purchase and sale of this land for 6000 dollars; that a. fieri facias was issued on the judgment of the Carlisle Bank against Aughinbaugh on the 24th of July 1824, when an agreement was made by Aughinbaugh with the privity and knowledge of Dr Simpson that the property should be condemned and sold on the 12th of August 1824; that it was so sold on the said fieri facias and a deed to the purchaser Dr Simpson made the same day, which was acknowledged the 13th of September 1824; and all this was for the purpose of making title to Dr Simpson who knew that the money was not to be brought into court for appropriation, and consented thereto and received a part of the purchase money in discharge of his own judgments against Aughinbaugh; such arrangement and sale would not divest the lien of Brown’s judgment against Snoddy under the other facts in the cause.</p> <p>Charge to the jury.</p> <p>The plaintiff’s judgment was entered on the 4th of August 1819; the sale to.Simpson was in August 1824; as no scire facias issued within five years after the entry of plaintiff’s judgment, and a sale was made, and the purchaser took and continued actual possession continually from that time, we say, if the facts are true as stated, that the judgment considered per se, has lost its lien as to the present terre-tenant. This position is not controverted, but plaintiffs contend that they are entitled to tack the lien of the mortgage of 11th of July 1817 to it, so as to estimate the lien from that date; if so this issue would be in favour of the plaintiff, but otherwise it should be found for the defendant. We are of opinion that, as B. Aughinbaugh was mortgagee, and as he purchased at sheriff’s sale the equity of redemption in 1820, the mortgage and its lien was extinguished, and if so it cannot now be tacked to the judgment. If it is true, that the transfer of the bond to Thompson Brown was an equitable transfer of the mortgage pro tanto, out of the proceeds of tbe mortgage, even for contribution, the assignee would be entitled. But the mortgage was a unit, the equity of redemption a unit, and there could be but one remedy. If the mortgagee, who was the legal party, became vested with both legal and equitable interest, there was a merger of the equity of redemption. Two suits could not be sustained upon the mortgage, nor could a portion of the interest of Snoddy be sold; and if the remedy on the mortgage was gone, the mortgage itself was virtually gone. The mortgagee could not sustain an action against himself as terre-tenant; a scire facias must be for the whole of the mortgage; it could not be sustained on a partial assignment for a small part. The facts are not disputed, and if they are as stated, the law is on this point against the plaintiff. We are further of opinion that, whether the purchase by Dr Simpson was judicial or private, if he had no notice of the transfer of the bond, and paid his money as stated, that he would hold the property discharged from the lien, and that the recitals in the sheriff’s deed to Aughinbaugh, and that sale being subject to the mortgage, and the fact of suit being brought, and the proceedings upon the bond, would not afford such constructive notice as would affect him. As the facts in the case are not controverted, and as the law, as we have already stated it in reference to such supposed state of facts, is against the plaintiff, it might be unnecessary to answer all the points put by plaintiff’s counsel in detail; yet if the case be sent back from the supreme court, it is important that we should have their opinion on all the points; for the purpose of bringing them up, we answer them in the negative.</p> <p>The errors assigned were in the answers of the court to the points put by plaintiff’s counsel.</p>

This action was tried before the Chief Justice at a circuit court lately holden for the county of Dauphin, where a verdict was given against the defendant: upon which he moved for a new trial; the motion, however was overruled, and judgment entered upon the verdict. From the decision of the circuit court upon his motion for a new trial, the defendant appealed.

Gaius Moore, the plaintiff in error, who was also the plaintiff below, brought this action in the court of common pleas of Schuylkill' county, against Joseph Shelly, the defendant, to recover damages on account of his having refused to perforin his covenants made with the plaintiff, according to certain articles of agreement mutually sealed and delivered between them, on the 4th day of February 1832.

<p>ERROR to the common pleas of Perry county.</p> <p>This was an action of assumpsit in the common pleas, by MichaelDonnelly, administrator of Jane Callaghan, against Robert Clark and Samuel Galbreath. The defendants were administrators of James Cairns deceased, and as such presented their administration account to the orphan’s court, and it was referred to auditors, before whom the matter in dispute was, whether the administrators should be charged with the amount of a note of Robert Clark to James Cairns, the intestate, for 700 dollars, dated the 2d of November 1812. The auditors charged the accountants with it, and the account was confirmed on the 8th of August 1820, finding a balance of 2039 dollars in the hands of the accountants. To January term 1821 a suit was brought on this same note, in the name of Cairns’s administrators, for the use of Sarah Galbreath, against Robert Clark, upon the allegation that James Cairns, in his lifetime, had given this note to Sarah Galbreath. Of this suit notice was given by the defendant to Jane Callaghan and her attorney to make defence, which she declined to do. Judgment was rendered by default, execution issued, the money made and paid to the plaintiff. On the 5th of March 1827, the orphan’s court granted a rule to show cause why distribution should not be made of the balance, which was served on Robert Clark, vyho did not appear, and the court decreed a distribution of the original balance decreed to be in the administrator’s hands. It was for the amount decreed to be paid to Jane Callaghan that this suit was brought. On the trial, the defendant proved that James Cairns had, in his lifetime, given the note before mentioned to his sister, Sarah Galbreath.</p> <p>The counsel of the defendants requested the court to charge the jury on the following points :</p> <p>1. That the report of the auditors, and the decree of the orphan’s court, thereupon, are not conclusive upon the right of Sarah Galbreath to the note for 700 dollars, and the money due thereon.</p> <p>2. That she had a right, on the evidence now given, to sue for and recover the amount of that note.</p> <p>3. That as she brought suit upon said note, after the decree of the orphan’s court against Robert Clark, who was one of the administrators of Cairns, and against whom the amount of the note and interest had been charged as if received by him as administrator, her recovery thereof is equivalent to a recovery by a creditor of Cairns against his administrators, after settlement of their administration account: and that such recovery would be, and in this case is, a good defence against a suit by a distributee; and more particularly if Jane Callaghan had notice, both before and after suit was brought on said note, that the same would be, and was, sued for the use of Sarah Galbreath, and failed or neglected-to make defence therein.</p> <p>4. That if said note was a gift to Sarah Galbreath, or if it was a donatio causa mortis, although it might be rightfully included in the administration account, because the rights of creditors might be affected, yet as between legatees or distributees, the administrators ought not to be charged with it; and these facts may be shown in a suit by a distributee, and if proved, constitute a valid defence.</p> <p>The substance of the answer of the court (Reed, president) was, that the matters contained in the administration account were conclusive, so far as tO'prohibit an inquiry into them in a collateral action for a distributive share; and directed the jury that the plaintiff was entitled to recover.</p>

This was an ejectment by John Eshelman and others, heirs of Christian Dellebaeh deceased, against Joseph Witmer, for a tract of land.

<p>A party to a note which is strictly negotiable, and has been actually negotiated, cannot'be a witness to invalidate it.</p> <p>On the trial of a cause in the common pleas, it is not error to refuse to reject' evidence, on the ground that notice of special matter was demanded, when the cause was pending in a district court, and not furnished to the plaintiff; it not appearing that the district court had any rule to authorize the demand by the plaintiff.</p>

An application was made for the appointment of commissioners to view and attach part of West township to Henderson township. The commissioners made a report in favour of the alteration, and embodied in it the courses, distances and a particular description of the new line ; and also accompanied their report with a draft of the new line.

Adam Bassler applied, by petition, to the quarter sessions of Lebanon county, for a venire to the sheriff of Lancaster county to summon a jury to assess the amount of damage done to his land by the construction of the Union Canal.

ERROR, to the common pleas of Schuylkill county. This was an action of ejectment by James Cresson and others, against John Miller and others, for fifty acres of land; the facts of the case necessary to an understanding of all the questions of law which arose, are fully stated by his honour who delivered the opinion of the court. The cause was argued by

“ Hope” had been a slave of Philip Baker. In 1818 an order of two justices, adjudicating him to be chargeable to the county of Cumberland as a pauper, was made ; and he was removed to the poorhouse. In 1820 the county of Cumberland was divided, and the poorhouse was in tliat part which was called Perry county.

This was an action of ejectment by Sophia Esseck against Jacob Knaub, and was founded on a mortgage conditioned for the payment of 14 pounds 19 shillings and 5 pence annually to the plaintiff during her natural life. The plaintiff claimed a verdict for the land, to be released on the payment of three instalments due before suit brought.

<p>A son, who had been a manager of iron-works for his father in his lifetime, and who after his death became his administrator, on the settlement of his administration account is entitled to a credit for a balance in his favour on the cash book : and is not chargeable with an account against the works managed by him for materials furnished for repairs.</p> <p>An appeal entered on the 8th of October 1830, from a decree of the orphan’s court made on the 8th of October 1829 is within one year, as provided for an appeal by the act of the 8th of February 1819.</p>

<p>WRIT of error to the judges of the court of quarter sessions of Adams county.</p> <p>The record exhibited an indictment against Robert W. Middleton for a libel; on the trial of which, the defendant offered to give in evidence the truth of the facts stated in the alleged libel, on the ground that the matter referred to was of a public character, and likely to aflfect the public interest. The court below (Reed, president) was of opinion, that the character of the alleged libel must be determined exclusively from an inspection of the paper itself; and that inspection did not result in the conclusion that the public interest was at all involved in the matter; and the evidence was rejected. The defendant’s counsel requested the court to seal a bill of exceptions to their opinion, which was done.</p>

This was ail action of ejectment by Shorb, Lyon and others against Thomas M’Namara, for a tract of land in Centre county. Upon the trial of the cause, the plaintiff offered in evidence the deposition of a witness, who detailed acts done upon the land in dispute, by a settler in the course of his making his improvement, and concluded with the expression, that the improvement was continued and kept up to a certain period.

WRIT of error to Dauphin county. The writ, in this case, was sued out in the name of Thomas Finney and Daniel Merlz, terre-tcnants, against Calvin Blythe, who survived, &c., for the use of Martha Crawford ; and the body of the writ called for the record of a suit in which the defendants in error were plaintiffs, and the plaintiffs in error defendants.

The court in their opinion state all the facts which are necessary to a full understanding of the principles determined in the case.

<p>APPEAL by John Downey’s administrators from the decree of the common pleas of Dauphin county, distributing the proceeds of the sale of the real estate of Leonard Sweitzer deceased. Leonard Sweitzer had the legal title to the land sold, and Jacob Steigleman the equitable title to a certain amount of purchase money he had paid for it. Downey’s administrator had obtained a judgment against Sweitzer in his lifetime, but which had not been revived within five years. The only question was, whether, after the death of a judgment debtor, the lien of the judgment is subject, for its continuance, to the provisions of the act of 1798. The court below (Blythe, president) was of opinion that the lien was gone, and decreed accordingly.</p>

This action was by Joseph Wolf against Samuel Clark, in which the following facts were agreed to be considered in the nature of a special verdict. This suit is instituted by the plaintiff against the defendant, Samuel Clark, to recover the penalty of 50 dollars imposed by the act of assembly of the 2d of April 1830, passed for regulating hawkers and pedlers.

Several executions issued against the defendants on the same day, but at different hours of the day ; and upon an order of distribution, the court (Blythe, president) decreed, that the executions should be paid in the order of time in which they came to the sheriff’s hand.

Patrick Ferry’s administratrix brought this suit against Robert Downey and Adam Miller, before a justice of the peace, by whom it was submitted to referees, who made an award for the plaintiff for 9 dollars; upon which judgment was entered by the justice, and from which the defendants appealed to the common pleas.

<p>In an action of covenant on an agreement for the sale and purchase of land, to compel the payment of the purchase money, the plaintiff alleged in his declaration a tender of performance on his part; the defendant pleaded specially that the plaintiff had not, and could not, tender an unincumbered title to the land, and set out certain unsatisfied judgments against the plaintiff which were liens upon it; the plaintiff in his replication alleged matters in excuse for the want of a tender to perform on his part. Held, that this variance between the declaration and replication was fatal, on demurrer to the plaintiff’s action.</p> <p>It is not error to refuse to permit a plaintiff to amend his declaration after a judgment in demurrer against him; such amendment is not embraced within the provisions of the act of 1806.</p>

<p>In what case, and under what circumstances, a legatee will be charged with interest upon advancements ; and the effect of the settlement of an administration account by executors upon the question of interest.</p>

<p>ERROR to Centre county.</p> <p>This was an action of covenant by John Scott against Hardman Philips, to compel the defendant to convey the tract of land mentioned in an article of agreement. The jury found the following special verdict:</p> <p>Articles of agreement, made and entered into the 25th day of January, in the year of our Lord 1814, between Sophia Philips, of Philadelphia, widow, by her attorney, Hardman Philips, and William P. Dewees, of Philipsburg, Centre county,' proprietors of certain lands on the Mushanan and Clearfield creeks, in Centre and Clearfield counties, of the one part, and John Scott, now órlate of Bald Eagle, of the other part. The said parties of the first part hereby agree and engage to sell and release to the party of the second part, a certain tract or piece of ground, situate on the Bald Eagle creek, beginning at a post on the creek, on the division line, between the tracts in the name of Bryan O’Hara and James Lochlan, thence north fifteen west seventy-eight perches to-a post; thence south fifty-seven west two hundred and forty-two perches to a post; thence south sixty-three east seventy-five perches to a post on the creek; thence along the course of the creek to the place of beginning, and containing ninety-five and one half acres, at and after the rate of 10 dollars per acre, payable, 225 dollars the 1st day of April next, and the same sum the same day of the same month of each succeeding year until the whole is paid, the fractional part to be added to the last payment. The said party of the second part moreover binds himself hereby, that he will clear, or cause to be cleared, at pleasure; which being accomplished, and the purchase money, as aforesaid, paid, the parties of the first part hereby promise and engage to make a full and sufficient title to the said tract of land to the party of the second part, his heirs and assigns; and moreover it is agreed, that, for the full performance of these presents, the parties mutually bind themselves in the penal sum of 500 dollars. Witness their hands and seals this 25th January 1814.</p> <p>The plaintiff paid the defendant for ninety-five and a half acres of land, at 10 dollars per acre; and this was the quantity of land contdinecl in the original survey and patent. A survey was made of the land before the trial of the cause: it was found to contain one hundred and seventeen acres. The question presented to the court was, whether the defendant was entitled to recover the price of the actual quantity of land, at 10 dollars per acre, or the price of ninety-five and a half acres, at the same rate as mentioned in the contract. The court below (Burnside, president) was of opinion, that the quantity mentioned in the contract was conclusive of the rights of the parties, and gave judgment for the plaintiff for 500 dollars, to be released on the conveyance of the land by the defendant.</p>

<p>ERROR to the common pleas of York county.</p> <p>This was an action on the case by Samuel Kisler, against Samuel Etter, administrator of Henry Kisler deceased, in which the jury found the following special verdict.</p> <p>Henry Kisler was guardian of the plaintiff. The ward had requested Henry to purchase Fisher’s farm, then advertised for sale, for him; but no definite agreement was made. Both appeared at the sale, which took place in the fall of 1828. Samuel had procured a man to bid for him, who, as well as Henry, bid for the property, and the same was struck down to Henry, who at the time declared that he did not buy for himself, but for his Ward Samuel; and Samuel assented to the purchase, and asked and procured a friend to bail Henry for his performing the conditions of sale. From this it is to be considered, that Henry bought the property for Samuel. Samuel was then twenty years of age. In one month Henry resigned as guardian of Samuel, and Elisha Garretson was appointed in his place. Henry offered the farm to Garretson for his ward on the same terms at which he had bought it, Garretson defelined to take it, and Henry sold before Samuel was twenty-one years of age, for 2000 dollars more than he paid for it, which he received. Henry filed his guardian account of Samuel. The property was bought at Fisher’s sale by Henry for 1266 dollars, subject to a dower of 2134 dollars, of the widow and children of a former owner. On the day of the purchase, Henry paid 100 dollars on account. This money Samuel procured and tendered to Henry before the re-sale of the property, and offered to take the purchase from Henry, and tendered security for the conditions of the sale; but Henry refused to let him have the farm. If plaintiff is entitled to recover, then judgment to be entered for him for 2000 dollars as per agreement. Henry Kisler filed his account as guardian of Samuel on the 6th of April 1829, exhibiting a balance in his hands of 743 dollars. This was presented for confirmation on the 12th of May 1829, and exceptions were filed by Samuel, which are still undetermined. ■</p> <p>The court below rendered a judgment for defendant.</p>

This was an action on the case for'a nuisance, in which Henry Hoy was plaintiff and James Sterrett defendant. The facts were, that Henry Hoy, about 1793, built a small mill upon a stream of water, and continued to occupy and use it for thirty years or more, when James Sterrett, the defendant, who was the owner of the land above on the same stream, built a larger mill and dam.

APPEAL by Adam Dietrich, administrator of Henry Dietrich deceased, who was administrator pendente lite of Philip Dietrich deceased. Philip Dietrich made a will devising his real estate, the validity of which was contested in a feigned issue. During the pendency of this issue, letters of administration were granted to Henry Dietrich, who attended and paid the expenses and counsel fees.

<p>A connected draft of a number of surveys, in the handwriting of a deputy of the deputy surveyor, who had executed the warrants and made some of the surveys, and which was found among the official papers of his principal, is not evidence of boundary in an action of ejectment for a part of the land included in one of the surveys made by him.</p>

John Crawford died intestate, seised of a tract of land : by a proceeding under the intestate laws, the estate was vested in William Crawford, who entered into recognizances to secure the payment of the shares of the other heirs. On one of those recognizances this suit was brought, with notice to Thomas Finney and Daniel Mertz, terre-tenants.

This was an action on the case for work and labour, in which Nicholas Pearce was plaintiff, and the Theological Seminary was defendant. The cause was referred to arbitrators, before whom the parties appeared, and the plaintiff gave in evidence a written contract, upon which the action was founded, and some other evidence, when, upon consultation with his counsel, he withdrew the .paper and all other evidence from the arbitrators, and said they might report no cause of action.

APPEAL by Gregg township from the decision of two justices removing a pauper from Half-Moon township. Thomas became chargeable to Half-Moon township as a pauper, and-by an order of two justices was removed to Gregg township, Centre county.

THE President, Managers and Company of the Schuylkill and Susquehanna Navigation, on the 2d of April 1794, made application, in pursuance of the provisions of their charter of incorporation, for a writ of ad quod damnum, directed to the sheriff of Dauphin county, to be served on Jacob Decker, the owner of lands through which the Company contemplated to locate their canal. The writ was immediately granted, executed, and an inquisition returned.

This was an action of assumpsit by Frederick Hummel against Valentine Greiner and John Keener, executors of Lawrence Keener deceased. ' The writ was returned served on Keener alone. M’Clure and Wilson appeared specially for Keener.

<p>A certified copy of a contract for constructing a section of the Pennsylvania Canal, from the auditor general’s office, is legal evidence, without the production of the subscribing witness.</p> <p>In an action against partners, on one of whom only the process was served, the plaintiff may give evidence of the declarations of the partner not served •with process.</p> <p>In an action for the price of blacksmith-work done, it having been first proved by the journeyman that he made the entries on a slate for two or three days until it was filled, when it was transferred to the book; that he did not remember the items, but knew the account amounted to three or four dollars: it was held that the book account, which was for three dollars and a half, should be received in evidence.</p> <p>Evidence of the existence of a partnership having been given, the partner upon whom the process was not served, is not a competent witness for the defendant, although a release was executed to him.</p> <p>When the existence or non-existence of a partnership depends upon written evidence, it is the province of the court to determine upon their legal effect.</p>

This was an action on the case for slander by David Greer against Patrick M’Kennon; in which the plaintiff thus laid his charge in his declaration. “Who gave you” (the said David meaning) “ orders to feed my straw” (the straw of the said Patrick meaning) “ to your cattle” (the cattle of the said David meaning) Í “You” (the said David meaning) “ did take it,” (the straw of the said Patrick meaning) “for it could be seen at the back of the barn” (meaning and intending that the…

Ejectment by Joseph Hall against George Hamlin and David Zoolc. The defendant, to support the issue on his part, gave in evidence a judgment against Henry Zook, under whom both parties claimed title, in the common pleas of Chester county, in which he was the plaintiff, and upon which the land was sold by,the sheriff to him.

The style of this action was, Alexander Stewa,rt against Christian Behm and Martin Swarr, administrators of Jacob Swarr deceased, who was jointly and severally bound with David Dasher, who signed and sealed the same in the name of Ringle & Dasher. The action was upon a joint and several* note under seal, signed Ringle & Dasher, who were principals, and Jacob Swarr, who was a surety.

Ejectment. Benjamin and Isaac Taylor against John Taylor. Peter Dinkle, being seised in fee of the land in dispute, conveyed the same to Jacob Keller: on the same day, Keller executed a bond in the penalty of 400 dollars, conditioned, upon the payment of the money to Dinkle by Benjamin and Joseph Taylor, that he would convey to them. Joseph did then pay 50 dollars of the purchase money, and he and Benjamin, with Keller as their security, gave bonds to Dinkle for the residue.

John Robins, the appellant, brought this action, being an ejectment,.against Hugh Bellas, to recover the possession of three lots of land, Nos. 20, 22 and 23, situate in Augusta township of Northumberland county. Both parties derived their title from Thomas Robins, who was admitted to have been seised in fee of the lots.

In this action by William Nice against Kirk, Kelton & Co., the only point determined was fatal to the plaintiff’s right of action; and is fully stated in the opinion of the court.

<p>WRIT of error to the common pleas of Tioga county.</p> <p>This was an action of partition by Margaret Power, Sarah Power, Maria Power, Thomas Lewis and others against Josiah Lockhart, who pleaded non tenet insimul. On the trial it appeared that Margaret Power and Thomas Lewis had parted with their title previously to the commencement of the action : and this was made a ground of objection to the plaintiffs’ right to recover. The court below did not sustain the objection, and the plaintiffs obtained a judgment quod partitio fiat, and did make partition.</p>

<p>WRIT of error to Susquehanna county.</p> <p>This was a scire, facias upon a mortgage by Putnam Catlin, assignee of Horace Binney against John W. Robinson, in which a judgment was rendered on motion for the plaintiff on the 15(h of November 1826, for 25,857 dollars ; on which a levari facias to September term 1826 was issued, and the mortgaged property was sold to the plaintiff, Putnam Catlin, for 5000 dollars. On the 30th of November 1829 a motion was made at the instance of Robert Eldridge and others, who were terre-tenants of the mortgaged land, to open the judgment and let them into a defence ; which was made absolute, and they severally pleaded payment with leave, &c. To the opinion of the court opening the judgment, an exception was taken by the plaintiff. On the trial of the cause, Robert Eldridge, one of the terre-tenants, offered the following evidence, which embraced the whole merits, as well of his defence, as of all the other terre-tenants.</p> <p>“That on the 27th of October 1803,- one Elias West made a written contract with Robert H. Rose, attorney in fact of Henry Drinker, then of the city of Philadelphia, now deceased—the then proprietor of a large body of lands, lying in the county of Luzerne, now Susquehanna, on the waters of Meshoppen, Wyalusing, Tuscarora, Tunkhannock and Harery’s creeks, for the purchase of one hundred and fifty acres of the said land, with six per cent allowance for roads, &c. Which lot of land, so purchased of the said Elias West, as aforesaid, was duly surveyed by direction of the said Robert H. Rose. And the said Elias West, in pursuance of such contract, entered into possession thereof, improved the same, and resided with his family thereon. That some time after the making of the said contract, the said Henry Drinker departed this life, having, by his last will and testament, authorised and empowered executors to sell and convey such parts of his real estate as they might think proper; in puisuance of which power they entered into a contract with John B. Wallace for the sale of twenty-two contiguous tracts of land, part of the said large body of lands, including the parcels as aforesaid sold to the same Elias West. On the 21st day of July 1810, the said John B. Wallace convened the several settlers and others claiming interest in (he said twenty-two tracts of land at the house of Joshua Kaynsford, Esq., in Bridgewater township, in said county of Susquehanna, and then and there entered into a new contract with the said settlers, the said Elias West being, one of them, for the purchase, by the said settlers, of their respective lots of land, for the price and sum of 2 dollars an acre payable in equal instalments at the end of three, four and five years from the 1st day of January then next, with interest payable annually from the date of said contract—deeds to be given upon the purchasers respectively, and the payments to be secured by bonds—with letter of attorney and mortgage, which agreement was deposited in the hands of said Putnam Catlin, by mutual consent, for the use of all persons interested therein. “ That previous to the date of the last mentioned contract, Elias West had sold to one Edward Fuller, also a party to said contract, about fifty acres of his original purchase, he retaining one hundred acres with the allowance, &c., for which he contracted with John B. Wallace.</p> <p>“And .such of the said lands were surveyed thereupon, as were not previously surveyed under the contracts with the said Robert H. Rose, by direction of the said Putnam Catlin, (hen the attorney in fact, of the said John B. Wallace, and a map thereof, including' the lot so as aforesaid sold to the said Elias West, was thereupon made out and delivered to the said Putnatn Catlin, for the common use and benefit of all concerned.</p> <p>“That the said Elias West continued in possession of said lot, and enlarged his impiovemenf, with much labour and expense, until the 29th day of April 1812, when he sold and conveyed his right and title thereto to one Samuel Kellum, who went into possession thereof, resided thereon and continued to improve said lot until the 17th of August, 1815, when he sold and conveyed his interest in said lot of land to the said Robert Eldridge for the consideration of 1355 dollars and 43 cents. And the said Robert Eldridge thereupon went into possession thereof, and has continued to possess the same and reside thereon with his family to the present time, making valuable improvements at much labour and expense.</p> <p>“In the latter part of the year 1814, the said Wallace convened the settlers on said lands, and the said Samuel Kellum, among others, at the house of Z. Deans, one of the said settlers, the said Putnam Catlin being also present, at which time it was agreed between the said Wallace and the settlers, that deeds should be immediately executed to the said settlers, and bonds and mortgages given by them to secure the payment of ihe purchase money, according to the tenor and effect of the above mentioned contract; and Wallace then directed said Catlin, who held a letter of attorney from him with full power to convey lands, to make and execute the deeds and receive the securities, which Catlin declined doing under the pretence that he was going to be absent, and could not attend to it. Wallace then promised and agreed to make and execute the deeds forthwith, and cause them to be delivered, which was not done.</p> <p>“ On the 9th of February 1814, in pursuance of the contract by them previously made with the said John B. Wallace, as above is set forth, and in fulfilment thereof, the said executors named in the last will and testament of the said Henry Drinker, conveyed to the said John B. Wallace the legal title to the said twenty-two tracts of land, and the said John B. Wallace, on the 2d day of December in the year last aforesaid, conveyed the same to Horace Binney in trust to and for the sole and separate use of Susan Wallace, the wife of the said John B. Wallace, with power to sell and convey the same. And the said Horace Binney, by virtue of the said power to sell and convey contained in said deed, on the 8th of December, in the year last aforesaid, for and in consideration of the sum of 18,000 dollars to him secured to be paid by the said John W. Robinson, by deed indented, granted and conveyed the said twenty-two tracts of land to the said John W. Robinson in fee : and the said John W. Robinson, to secure the payment of the purchase money, then executed his bond to the said Horace Binney in the penal sum of 36,000 dollars ; and a mortgage of the said twenty-two tracts of land in the usual and customary form, which is the same mortgage on which this suit is brought, it having been duly assigned and transferred to the said Putnam Catlin on the 29r.h day of October 1821. And the said John W. Robinson, on the said 8th day of December 1814, made a declaration under his hand and seal to the effect following, to wit: that whereas the said John B. Wallace had made divers contracts with settlers on the said lands for parts or parcels thereof, to the completion of which he was liable; lie, the said Robinson, acknowledged that he took the said lands subject to such contracts, and engaged for himself, his heirs and assigns, to fulfil and complete the same, no mention being made of such contracts, at his, the said Robinson’s request, that the deeds of conveyance to him might be clear and general, on the face of them.</p> <p>“ On the 22d of October 1818, the.said Robert Eldridge tendered to the said John W. Robinson the whole amount of the purchase money, and interest due on said contract, for his lot of land, which Robinson counted, admitted the amount, and made a memorandum thereof, but refused to accept.</p> <p>“ On the 10th of November 1818, the said Robert Eldridge paid the said J. W. Robinson, on account of bis said lot of land, 175 dollars, and took said Robinson’s receipt therefor; and subsequently paid the whole balance due on said contract to said Robinson.</p> <p>“ And the said Robert Eldridge will further give in evidence, that the said John W. Robinson, having made divers and large payments to the said Horace Binney and Putnam Catlin in part payment of his said bond and mortgage, of moneys received by him from the purchasers of parcels of the said lands, sometime in the month of November 1826 entered into an agreement with the said Putnam Catlin, whereby the said John W. Robinson was released and discharged from the payment of the residue of the said debt, so secured by his bond as aforesaid, and of all the interest which might have accrued thereon and remained unpaid, and also of and from the payment of all such sums of money as he had received from the purchasers of parts and parcels of the said twenty-two tracts of land, and had not previously paid over to the said Horace Binney and Putnam Catlin. And it was also stipulated and agreed, that the said John W. Robinson should deliver up to the said Putnam Catlin all and every one of the mortgages, bonds, notes and other securities held by him for the payment of money of the said purchasers, and also all title papers, agreements and contracts relating to said lands, and confess a judgment in this case on the said mortgage, which agreement was duly carried into effect by the said parties. A judgment having in pursuance of said last mentioned agreement been confessed as aforesaid on the said mortgage, by the said John B. Wallace, without any notice to the said Robert Eldridge, a certain writ of levari facias was issued thereon, commanding the sheriff of • said county to sell the said twenty-two tracts of land in the usual form ; in obedience to which writ he sold the same to the said Putnam Catlin, and on (he 5th of December, in the last mentioned year, conveyed the same to the said Putnam Catlin in fee, for the nominal consideration of 5000 dollars, no part thereof being paid. And the said Putnam Catlin, on the 2d day of April 1827, made a declaration in writing, under his hand and seal, reciting the said purchase and conveyance to him by the said sheriff, and declaring that he did purchase and take all and singular the said twenty-two tracts of land, and that he continued to hold the same in trust for and to the benefit of the said Susan Wallace and her heirs and assignees, ‘ excepting such tracts or parts of tracts as had been duly released from the general mortgage of the said John W. Robinson to Horace Binney, and such tracts or parts of tracts as had been previously sold by the said John B. Wallace previous to the date of said mortgage, and were excepted at the sale by the sheriff;’ which declaration was duly recorded in. the office for recording of deeds in and for said county, on the the 3d day of April in the year last aforesaid. And that the said Putnam Catlin, on the 10th day of July 1828, by deed indented, fraudulently conveyed the said twenty-two tracts of land to one Susan P. Bradford, except such farms thereon as the said Putnam Catlin had, by deeds executed and recorded, conveyed to the several purchasers thereof, to the use of the said Susan P. Bradford, her heirs and assignees for ever.</p> <p>“ And the said Robert Eldiidge will further give in evidence, that since the 4th of May 1826 he has had notice that the said JohnB.Wallace, prior to the date of the conveyance to him by the executors of the last will and testament of the said Henry Drinker, to wit, on the 3d of September 1805, entered into an article of agreement with the Corporation for the relief of poor and distressed Presbyterian ministers, and of the poor and distressed widows and children of Presbyterian ministers, for the purchase of divers tracts of land, and among others the said twenty-two tracts of land, for the price or sum of 1 dollar an acre; which article of agreement recited, that whereas the said twenty-two tracts of land were claimed by the said Henry Drinker,Tfnd it being uncertain whether his title or that of the corporation was the better, the said John B. Wallace covenanted and agreed that he would, at his own expense, take the steps necessary to have the rights decided, and if the decision were in favour of the corporation, they were to convey the same, or so much as should be recovered, to the said John B. Wallace in fee, and that he should give the corporation a bond, with a warrant to confess judgment, to secure the payment of the purchase money, which agreement and covenants have not been complied with nor fulfilled by the said John B. Wallace; whereby the said lands are incumbered to the amount of the said, purchase money and interest, no part thereof having been paid.”</p> <p>To the admission of this evidence the plaintiff objected, but the court overruled the objection and admitted it-; to which exception was taken. The court below were of opinion, that the evidence given was a good defence for the terre-tenant, and so instructed the jury, who found verdicts for them, upon which judgments were rendered.</p>

WRIT of error to the court of common pleas of Bradford county. Lyman H. Hodges brought this action on the case against William Myers and John F. Satterlee, to recover damages for breach of contract. The defendants were administrators of Harry Spalding deceased, who died intestate, seised of real estate. In January 1832, the following proposition and agreement were executed by the plaintiff and defendants.

<p>A settler who makes his improvement by mistake or otherwise, on land previously appropriated, obtains no title by settlement to Ihe-adjoining tract, over which his enclosure extends.</p>

<p>WRIT of error to Tioga county.</p> <p>This was a scire facias upon a mortgage by Michael R. Tharp for the use of Silas Billings against Russel Smith, with notice to Stephen Burlingame, terre-tenant. The facts necessary to understand the only principle in the case, are sufficiently stated in the opinion of the court.</p>

<p>It is not essential to the validity of a survey, in all cases, that the deputy surveyor should have gone upon the ground to execute the warrant; if the land bo bounded on three sides by the lines of older surveys, made by legal authority, and those lines returned in execution of the warrant, it is sufficient.</p> <p>Upon proof of a warrant, return of survey, and patent for land, accompanied by evidence of acts of ownership for more than twenty years, during which time there was no adverse claimant, every thing will be presumed to have been rightly done, in order to support the title of the warrantee.</p>

APPEAL by defendants from the circuit court of Northumberland county. This was an action of ejectment by George Oyster and Sarah his wife against Hugh Bellas and Jacob Weiss. The plaintiff claimed upon a warrant, dated the 18th of November 1793, on which there was a survey returned the 25th of October 1794, and a second survey, called a re-survey, the 25th of August 1814, and a patent upon the latter survey of the 26th of June 1829.

This was an'action of covenant by Hugh Bellas against William A. Lloyd. On the 1st of November 1823, Hugh Bellas was the purchaser of a church and lot at sheriff's sale, and on that day he executed an agreement vesting certain privileges and benefits in certain denominations of Christians, in the said church and lot. On the 25th of.

<p>APPEAL from the orphan’s court of Columbia.</p> <p>Charles Clark, executor of Robert Clark deceased, upon the settlement of his administration account, prayed the court that he might not be charged with interest upon bonds due by himself to the testator in his lifetime until one year after his death ; but the court refused so to settle the account, and the executor appealed.</p>

<p>The declarations of a party who is charged with fraud, when they are not part of the res gesta, but explanatory of a concomitant act, should not be permitted to go in evidence to the jury.</p> <p>A father may authorise his son to contract with an employer and receive his wages for his own use ; but the facts, that the son was out at service, and the father received his wages, of themselves show no relinquishment of the father’s property in the son’s labour.</p> <p>In a question of fraud, the validity of a conveyance from a father to a son depends not on supplementary acts, but on the character of the contract when it was made.</p>

<p>In order to preserve a pre-emption right to land, a personal residence must be kept up and continued upon it until the purchase money be paid, a warrant obtained and survey made. To leave the land without the animus revertendi is a legal abandonment of it.</p>

<p>A surety who has paid the bond debt of his principal will be placed in the situation of the creditor, and be entitled to all his rights ; but not so with regard to a payment by one joint obligor in a bond; his claim against his co-obligor is a simple contract claim for contribution.</p> <p>A and B “ are held and firmly bound to M in the sum of 1000 dollars, to be paid to the said M, his executors, administrators or assigns ; to which payment, well and truly to be made and done, we bind ourselves jointly, and -our heirs, executors and administrators, and every of them firmly by these presents:” held to be a joint obligation, and not joint and several.</p> <p>If an executor, in the regular discharge of his duty, advances money of his own to discharge debts of the estate, he will stand in the place of the creditors thus paid as to the distribution of the estate. But if his course of administration has been irregular, and without regard to the rights of the creditors generally, as where he pays simple contract debts when there are specialties, he has no claim to preference on a deficiency of assets.</p>

<p>CERTIORJlRI to the quarter sessions of Union county.</p> <p>This was an application by John Snyder for the appointment of viewers, to ascertain the damage done to him by reason of the construction of the Pennsylvania Canal, and the appointment and report of those viewers : all the facts of which are fully stated by his honour who delivered the opinion of the court.</p>

<p>APPEAL from the circuit court of Lycoming county.</p> <p>This was an action of ejectment, by Samuel Sheaffer against John M’Kabe and Thomas M’Kabe. The plaintiff claimed title under a treasurer’s sale of the land for taxes. The defendant, who claimed under the title of the warrantee, resisted the plaintiff’s recovery, on the ground that the land was not unseated, but that it had been cleared and cultivated. The fact appeared to be, that the owner of the adjoining land had cleared several acres over his line on the land in dispute, had farmed it, by raising grain upon it, and had made a verbal agreement that he would pay the taxes of the whole tract ¡ for the use of that which was cleared. It also appeared that the owner of the land had paid taxes which had been assessed upon it as unseated.</p> <p>The counsel for the plaintiff asked the court to instruct the jury upon the following points:</p> <p>1. That an accidental or even wilful clearing over the lines of the tract in dispute, by the owner of the adjoining survey, and a cultivation of such part and raising of grain, unaccompanied by an actual residence within the boundaries of the tract, will not render it seated land within the meaning of the act of assembly.</p> <p>2. That even if the part so cleared over and cultivated, was thereby the subject of taxation as seated land, yet the residue of the tract would be considered unseated, and could be held by the purchaser at treasurer’s sale.</p> <p>3. The tract in dispute having been returned for taxation as unsealed land into the commissioner’s office, and taxes paid for it as such, including the year 1818, by the owner Mr Govett, and this long after the alleged clearing over the line, amounts to an acquiescence on the part of the owner that the land was unseated, and he shall not now allege the contrary to the prejudice of the purchaser’s vested rights.</p> <p>4. The verbal lease to George Sheaffer, if any such was given, that he should pay (he taxes ou the whole land for the use of the part so cleared, not having been complied with by-him, cannot affect the purchaser.</p> <p>But the court was of opinion that the plaintiff was not entitled to recover, and so instructed the jury, who found a verdict for the defendant. A motion for a new trial was overruled, and the plaintiff appealed.</p>

Titus Neal brought this action of trespass against Samuel F. Keeler, before a justice of the peace, to recover damages for seizing and taking away a mare belonging to him ; and it came into the court of common pleas by appeal. The defendant pleaded “ not guilty, and accord and satisfactiona verdict passed for the plaintiff for 70 dollars.

WRIT of error to the common pleas of Union county. Upon a sale of the personal property of Daniel Kunkleman by the sheriff, the money was brought into court for appropriation, and was claimed by several. Henry W. Snyder claimed it in satisfaction of a debt greater in amount than the money made. John Snyder, Christian Hautz and Christian Baldy claimed it in satisfaction of several claims which each had.

This was an action of ejectment by gelah Payne against Benjamin Bennet, upon the trial of which these material facts appeared. Archibald M’Allister had brought an ejectment against Bennet, the father of the present defendant, which was compromised by a purchase by Benjamin Bennet from Archibald M’Allister, for a certain price, which was secured by a mortgage.

THE case brought up, on error to the common pleas of Westmoreland county, was this. • Kimmel, the plaintiff, distrained the goods of Boyd for rent.

This was an action of assumpsit for money had and received by the Commonwealth of Pennsylvania against the Pittsburgh and New Alexandria Turnpike Road Company. The facts of the case are sufficiently stated in the opinion of the court to illustrate the principles determined.

<p>Unseated lands, sold for taxes, can only be redeemed by the true owner, or some one authorized by him.</p>

<p>Where the owners of a steamboat took produce to be carried and sold by them for a certain freight, and were bringing back in the same vessel the money which they obtained on the sale of the produce, when the vessel and the money were accidentally consumed by fire : held, that under the usage of trade on the western waters, they were acting as common carriers in going, as factors in selling the produce, and as common carriers in bringing back the money, and were liable for its loss, notwithstanding the accident.</p>

Henry Rishaberger, the defendant in error, was the plaintiff below, and brought this action against John Campbell, John Miller and Benjamin Berry, the plaintiffs in error, to recover damages for an assault and battery committed on him, and for false imprisonment. The evidence fully established that he was dragged to gaol by the defendants, under circumstances of more than ordinary rigour and violence.

This was a suit against the plaintiffs in error, as bail in the official bond of Rishaberger, high constable of the borough of Butler. The proceedings are admitted to be regular and the recovery legal, if the defendants below and plaintiffs here are liable on the bond. The town of Butler was erected into a borough in 1817. The same act of assembly constitutes Milton in Northumberland county a borough, and the first sixteen sections of the law relate to that corporation.

This was an action of covenant by John Moore, the defendant in error, against William Vicary.

<p>The purchaser of a title, perfect on its takes it discharged of every equity of which he had no notice : but if it be the purchase of an inchoate or defective title, he can claim to be in no better situation than he from whom he purchased. face, for a valuable consideration,</p> <p>If he who commences an actual settlement assents to its completion by another, for the use of a third person, and the settlement is so completed, that third person, having procured a warrant, survey and patent, has a perfect title.</p> <p>ERROR to the common pleas of Armstrong county.</p> <p>The facts of the case are fully stated in the opinion of the court.</p>

<p>Evidence to prove that an agent of the alleged owner of a tract of land, granted by parol a privilege to the defendant to overflow a small part of the tract by the erection of a mill and dam, and that the plaintiff, who subsequently purchased the tract from the vendee of such owner, had notice of the parol grant to the defendant, is not admissible, where no authority has been first shown in such agent, nor any interest in the land in such alleged owner.</p> <p>Nor is it competent to prove by parol that the plaintiff and defendant both claimed under the same person, and that such person was the owner of the land.</p> <p>Whether the defendant had an uninterrupted possession of the privilege for a period of less than twenty-one years, from which a grant might be presumed, is a question of fact to be determined by the jury.</p> <p>If the defendant extended the privilege beyond a reasonable boundary, and to an extent never contemplated in the grant, to the injury of the plaintiff, the latter is entitled to compensation in damages.</p> <p>The expenditure incurred in the erection of the mill, in pursuance of such parol grant, is a sufficient consideration to sustain it.</p>

This was a writ of error to reverse a judgment in favour of Henry Shriver and Mark Gordon, administrators of John Shriver deceased, against Isaac White.

WRIT of error to the court of common pleas of Mleghany county. This was an action on the case by Sarah South, the plaintiff in error, against Joseph Denniston, for the seduction of her daughter, Amanda South. The action was instituted by the mother, who was a widow, during the minority of the daughter.

<p>ERROR to the common pleas of Berner county.</p> <p>This was an action of ejectment, brought by the heirs of Isaac Lee Webster against Thomas Smith and others, to recover a tract of land containing three hundred and fifty acres. The plaintiffs gave in evidence a warrant, dated the 18th of February 1785, to Joseph Gilfillan, a survey in pursuance of the warrant on the 15th of July 1785, and a patent to John Lee Webster, in whom the warrant title became vested, as appears from the following recital in the patent, to wit, “ which said tract of land was surveyed in pursuance of a warrant dated the 18th of February 1785, granted to the said Joseph Gilfillan, whose right became vested in the said John Lee Webster and Amos Loney and Francis Holland, as will appear by a minute of the board of property of the 7th of July 1787. And the said Amos Loney and .Francis Holland, by indenture dated the 21st of February 1792, released all their right in said tract, inter alia, to the said John Lee Webster.” They then produced the will of John Lee Webster dated the 6th of March 1795, with a codicil dated the 28th of May 1795, by which the tract of land in dispute was devised to Isaac Lee Webster, since deceased, of whom the plaintiffs are the brothers and sislers and heirs at law.</p> <p>The defendants gave in evidence articles of bargain and sale, dated the 17th of October 1795, between Amos Loney and Thomas Smith, as follows:</p> <p>“Whereas John Lee Webster, in his lifetime, sold the tract in dispute to Thomas Smith for 17 shillings and 6 pence per acre, said land being the joint and undivided property of the said John Lee Webster, Amos Loney and Francis Holland ; and whereas the said sale was, for some reason, cancelled and given up by the said Smith, by the consent of the said John Lee Webster to the said Webster, Loney and Holland, and whereas the said John Lee Webster and Francis Holland are, since the making of said agreement and cancelling thereof, dead, and the said land, or a part thereof, disputed and claimed by older claims and grants : now this witnessetb, that the said Thomas Smith agrees with the above mentioned Amos Loney, the survivor of the said Webster, Loney and Holland, that he, the said Smith, will superintend the suit now depending for the land, and use his reasonable endeavours in procuring evidence and giving such instructions as may be in his power, and for the advantage of said Loney’s interest in conducting said suit; and the said Loney agrees on his part, for himself and his heirs, that said Smith shall have all the land clear of surveys or prior rights, at the price of 17 shillings and 6 pence per acre, which said land the said Amos Loney agrees to convey by a deed of conveyance to the said Smith, his heirs and assigns, upon the said Smith’s paying the purchase money, the one half in one year from the termination of the suit now pending, and the other half in two years. In consideration of which the parties hereto bind themselves, their heirs and assigns, to each other, in the penal sum of 1000 pounds.”</p> <p>The defendants also gave in evidence a contract.or bond dated the 20th of October 1801, executed by John Skinner Webster as¡ the attorney in fact of Isaac Lee Webster, then in Europe, to Thomas1 Smith, in the sum of 631 pounds 10 shillings, Maryland currency, and conditioned that if John Skinner Webster, his heirs, &c., or Isaac Lee Webster or his representatives, shall convey by deed in fee simple the tract in dispute to Thomas Smith, upon the said Smith, his heirs, &c. discharging a bond of the same date given by Smith for 330 pounds 15 shillings, in consideration of the purchase of the land, then to be void, &c. A further condition was added, that if any part of the land were claimed and held by right prior to the patent, Smith should pay at the rate of 17 shillings and 6 pence per acre for what he should hold.</p> <p>It was contended by the defendants that this contract or bond was not complied with by'the plaintiff’s tendering a deed executed by John Skinner Webster, who was only authorised by the will of John Lee Webster to execute deeds of conveyance during the minority of Isaac Lee Webster.</p> <p>The following errors were assigned.</p> <p>1. The court erred in stating to the jury that the recitals of the releases mentioned in the patent from Amos Loney and Francis Holland to John Lee Webster, were sufficient evidence of the existence of such releases against Thomas Smith, who claimed under Loney by a contract of purchase made subsequently to the issuing of the patent.</p> <p>2. The court below erred in charging the jury that the articles of bargain and sale made between Amos Loney and Thomas Smith, vested no title either legal or equitable in Thomas Smith.</p> <p>3. The court below erred in charging the jury, that if they believed the testimony of Mr Potts, that in 1793 Thomas Smith declared he had purchased the tract of land from John Lee Webster, the writing signed by John S. Webster would not cancel the agreement with John Lee Webster, but'might be considered as fixing and settling the terms of that agreement* referred to by the witnesses, and the title tendered would be good, and entitle the plaintiff to a verdict.</p> <p>4. The court below erred in charging the jury, that the plaintiffs were not bound to tender a deed before the institution of the ejectment.</p>

This was an action of ejectment, brought by the defendants in error as the heirs of Robert Bean deceased, to recover a tract of four hundred acres of land. The defendant admitted that Robert Bean died seised, but claimed title to the land by virtue of a deed from Joseph Keck, acting administrator of the intestate, to William Scott, executed in pursuance of an order of the orphan’s court.

<p>Upon a writ of error to remove a judgment upon a scire facias, the court will not examine the regularity of the original judgment, which had been obtained more than seven years before.</p> <p>• A judgment upon a scire facias after two returns of “ nihil,” is warranted by a long established practice, and the refusal of the court to open it is not. the subject of error. But in a case of manifest injustice, the supreme court will permit a writ of error to be withdrawn, to afford the common pleas an opportunity to open it.</p>

<p>WRIT of error to the court of common pleas of Alleghany county.</p> <p>This was an action of partition brought by Gabriel Swayze and Mary his wife, formerly Mary Orrnsby, against Oliver Orrnsby and' Sydney Gregg, by Neville B. Craig, the committee of her person and estate.</p> <p>On the trial of the cause, the point was submitted by the counsel of the plaintiffs to the court below :</p> <p>“ That an actual ouster must be proved; and whether there is such ouster or not, is a question for the jury.”</p> <p>On this point the court charged as follows: “ In the present case there is not only evidence from which the jury may presume an ouster, but the circumstances of the case are such as induce me to say to the jury that there has been no legal or actual possession shown in the plaintiffs,- and that therefore they cannot recover.”</p> <p>This opinion was assigned for error.</p>

<p>ERROR to the common pleas of Beaver county.</p> <p>This was an action of ejectment brought by the sons and heirs at law of William Wilson deceased, who was one of the devisees of Robert Irwin deceased, to recover from James Chambers the plaintiffin error, one hundred acres of land, being part of lot No. 1740, in the^rsf district of donation lands. The following extract from the will of Robert Irwin contains all that is material to the case. After a bequest of personal property to his wife, the testator proceeds: “ I further give and devise to my wife Martha Irwin one hundred acres, with the allowance of land, being the east end of lot No. 1740, lying in the first donation district, bounded east by lot 81, &c. with all the benefits that may arise therefrom, to hold to her the said Martha Irwin, her heirs and assigns for ever. And further, I give and devise the remainder of (he aforesaid lot 1740, being one hundred acres more or less (describing it), to any one of my brothers’ or sisters’ children that shall or may come from Ireland first, with all the benefits thereof, or that may arise therefrom, to hold to his or her heirs and assigns forever, if so be they shall or do come within the term of six years after they shall get lawful word hereof by writing; for which cause I do enjoin upon my aforesaid wife Martha Irwin, her heirs and assigns,'to use all possible diligence to communicate unto my aforesaid brothers’ and sisters’ children the import of this my will as1 soon as a declaration of peace shall be between Europe and America, provided also that all taxes that shall become due on the division last prescribed be paid a'nnually by my aforesaid wife Martha, her heirs and assigns, during the aforesaid time, or until the coming of the aforesaid heir; and if so be no one of the aforesaid brothers’ and sisters’ children doth come within the above mentioned time to inherit the last mentioned part of said land, then in such case I do give and devise the aforesaid last mentioned part in manner and form following : that it shall be divided into three equal parts; the first I give unto my grandson John Irwin Wilson; the second unto my stepson William Wilson, and the third part unto my stepson Joseph Wilson, with all the benefits thereof, or that may arise therefrom, to hold unto the said John Irwin Wilson, William Wilson and Joseph Wilson, each, their heirs and assigns for ever.” The testator further appoinls his wife executrix, and her son James Wilson executor of his will. He also gives directions in the will for sending letters to • his heirs, counby-Down, parish Gervoughy, near M’Kay’s bridge, Ireland, David Irwin, David Cooper.</p> <p>The will'is dated Slstof August 1813, and was proved on the 11th of November 181,3. It is a matter of history that peace was concluded in February 1815.</p> <p>There was also in evidence a deed dated (he 2d of July 1817 from Martha Irwin to Joseph Wilson for the whole tract, as well the one hundred acres devised to her by the will, as the remainder of the tract; all which she undertook to convey as executrix, with a general warranty, for the consideration of 1200 dollars.</p> <p>A deed from Joseph Wilson and wife for the same tract to Joseph Wilson, dated the 5th of April 1819; and a deed from James Wilson to the defendant James Chambers, dated 19th of October 1819.</p> <p>It also appeared in evidence that the one hundred acres, when in the possession of the defendant, were sold for'taxes, and that the defendant became the purchaser, and obtained a treasurer’s deed on the 30th of August 1826. .</p> <p>The plaintiffs offered James Wilson as a witness to prove that he applied to Thomas Henry to write a letter directed to David Irwin and David Cooper, and that Henry did write a letter giving notice to the devisees in Ireland of their interest under the will of Robert Irwin deceased, of which letter no copy was kept, but the contents of which it was proposed (o prove by the witness. To this admission of the testimony thus offered the defendant’s counsel objected. The objection was overruled by the court, and the witness was admitted, who then testified that after Judge Henry had written the letter the witness put it into the postoffice and paid the postage to New York, in the fall of 1825. The witness did not recollect the words of the letter, but stated that the substance of it was about the piece of land being left to the heirs of Robert Irwin. It was the neglect of the widow that notice was not given till 1825. To this evidence the defendant’s counsel excepted.</p> <p>Judge Henry also testified that he wrote the letter in 1825. It was his impression that something, but he was unable to recollect exactly what, was said about a given period in which the devisees in Ireland were to come over. Whether the will was before him or not when he wrote, he did not remember.</p> <p>The following were the only errors assigned that are embraced in the opinion of this court.</p> <p>1. The court erred in receiving parol evidence of the contents of the letter said to have been written in the year 1825, and put into the postoffice, giving notice to the devisees, living in Ireland, of the devise in their favour in the will of Robert Irwin deceased, without the production of either the original or copy of said letter,</p> <p>2. The court erred in their charge in stating that the construction put upon the will was, that the six years were to be calculated from the time of giving notice, and that if notice was given, although ten years after peace was declared, and none of the children of the brothers or sisters of the testator came within six years afterwards to claim and take the devise, then the devise over to the plaintiffs would take effect.</p> <p>5. The court erred in stating to the jury that James Chambers, the defendant,' having derived his title from Martha Irwin, was bound by the will to pay the taxes on the land in dispute, until notice was given agreeably to the will, and until some one of the brothers’ and sisters’ children came to accept and claim the devise within six years, and that having notice by his title of the provision, he was bound by it, and would derive no title by his purchase at treasurer’s sale, and was not entitled to recover the value of the improvements made on the land.</p>