Volume 2 — Wharton's Pennsylvania Reports

Mb. Bayard moved for judgment in this case, which was an alias scire facias sur mortgage, brought by Thomas Chambers, administrator (cum testamento annexo,) de bonis non of Thomas Duncan, Esq. deceased, against Charles Carson, surviving administrator of the goods, &c. of John Carson, deceased; the writ having been returned “ nihil” A doubt was expressed at the bar, whether such judgment could be regularly obtained, since the act of 13th June, 1836; the 39th section of which…

An action was brought in this Court to December term, 1835, by Agnes Thomas, guardian of the person and estate of Mary Ann Allen, against William Folwell, jun., and Samuel N. Davis, executors of the will of Richard F. Allen, deceased; and a case was stated for the opinion of the Court as follows: “ Richard F. Allen, and Susan J. Allen, his wife, executed to Anthony J. Thomas, on the fourth day of December, 1829, a deed of trust as follows: ‘This Indenture made the first day…

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of trover, brought by Lewis Adams against Samuel Nicholas, to recover two gold watches. ~ On the trial before Stroud, X, on the tenth day of June, 1835, the plaintiff claimed the articles in question, under the will of one Moses Holmes, dated the 29th day of October, 1832; the defendant claimed to hold under an alleged donatio causa mortis, made by the…

This was a writ of ¡error -to the District Court for the City and County of Philadelphia, to remove the record of an action of trespass, vi et armis, brought in that court, by Andrew M'Dowell against Edmund Shotwell, Peter Albright and George Hoffner, to recover damages for seizing and carrying away the goods of the plaintiff. ' On the trial below, the plaintiff proved, that on the 26th of October, 1832, the defendants seized and carried away from his house, which he had…

<p>This was a writ of error to the District Court for the city and county of Philadelphia, to remove the record of an action on the case brought by George H. Cress against Francis Murphy.</p> <p>The plaintiff declared in indebitatus assumpsit, for goods sold and delivered. At the trial before Joptes, J., on the pleas of non assumpsit and payment, &c., the plaintiff gave in evidence his book of . original entries, showing alleged sales of wood to the defendant at different times; the first entry commencing with the 9th of June, 1831, and the last purporting to have been made on the 20th of December, 1833. The defendant then gave in evidence certain receipts, signed by the plaintiff, acknowledging the payment of money to him, and dated at different periods between the 12th of October, 1832, and the 21st of September, 1833, and amounting altogether to $134. He also examined witnesses to prove that in point of fact, the contract for the sale of the wood was made, not with himself, but with a certain firm of Miller and Murphy, which was composed of one Miller and one Albert Murphy, a son of the defendant; and also gave in evidence a bill or account for the wood in question, headed “ Wood delivered to Miller and Murphy,” and sundry receipts given by the plaintiff to Miller and Murphy, and to Albert Murphy. The plaintiff then offered in evidence as rebutting testimony, his book of original entries, containing the following entries, which appeared to have been crossed over with a pen, viz:</p> <p>“ 1832—F. Murphy, Dr.</p> <p>Wood delivered to sell on commission, at 75 cents.</p> <p>Sept. 24—Delivered 8£ cords hickory.</p> <p>Oct. 12— “ 9 “ “ ”</p> <p>Which entries were objected to by the defendant; but the court overruled the objection, and admitted the evidence. The plaintiff then called witnesses to prove that the defendant purchased the wood, either on his own account, or as a partner with Miller and Murphy.</p> <p>The judge in his charge said, “ If the defendant be a partner with Miller and Murphy, he is still liable in this action—because he ought to have pleaded the non-joinder of the other partner in abatement of the suit. It is too late now to take advantage of this omission. If the plaintiff discovered the fact after the suit was commenced, he has a right to charge the defendant individually, unless the defendant himself takes advantage of the omission to abate the action. You are to judge of the weight of the evidence. If you find that the wood was sold to the defendant on his private account, he is liable. If it was sold to the firm of Miller and Murphy, and the defendant was a secret partner of that firm, he is liable. But if the wood was not sold to the defendant on his private account, and the defendant was not a partner of the firm of Miller and Murphy, he is not liable.”</p> <p>The jury having found for the plaintiff the whole amount of his claim, the defendant took a writ of error, and assigned the following exceptions.</p> <p>“ 1. The court below erred in the admission of the entry in the plaintiff’s book, showing wood delivered to the defendant to sell on commission, as rebutting evidence.</p> <p>2. The court erred in charging the jury that if the defendant was a partner of the firm of Miller and Murphy, he is liable in this action, because he did not plead the non-joinder of the other partner in . abatement.</p> <p>3. The court erred in charging, that if the wood was originally sold to the defendant on his private account, he is liable, when it clearly appeared that even if the defendant originally made the contract for the wood, there was subsequently a change of credit given, and the liability was transferred to Miller and Murphy.</p> <p>4. The court erred generally in charging the jury in point of law.”</p>

<p>IN ERROR.</p> <p>1. In assumpsit on a promissory note drawn by the defendant in favour of the plaintiff, it appeared that the plaintiff and defendant had been concerned together in a contract made with a canal company, for the construction of a portion of the canal: Held, that evidence was admissible on the part of the defendant, by way of set-off to the plaintiff’s claim, that he (the defendant) had made certain payments for materials and labour in reference to the said contract, to an amount exceeding the plaintiff’s claims and leaving a balance due to him.</p> <p>2. It seems, that since the act of 4th April, Í831, a claim for a balance arising from partnership transactions, may be set off in assumpsit, although such balance has not been ascertained by auditors in an action of account.</p>

<p>IN ERROR.</p> <p>1. In assumpsit for use and occupation, it is not necessary to render the defendant liable, that he should actually have held possession for the whole time laid in the declaration, if he became tenant by contract and retained the control and command of the property under such contract.</p> <p>2. The plaintiff by a parol agreement, let to A.a certain warehouse for ayear, commencing on the 1st of January, 1830, at a certain rent payable quarterly ; A. continued more than two years in possession, and then made an assignment of all his estate and effects to the defendants, for the benefit of his creditors. The defendants paid rent to the plaintiiF to the 1st of July, 1832. On the 3d of July, having closed the business previously, they tendered the key to the plaintiff*: Held, that they were liable in assumpsit for use and occupation for the quarter ending on the 1st of October, 1832; and that their liability was personal and not representative: but naming them as assignees in the suit was not error.</p>

<p>CASE STATED.</p> <p>1. The act of the 19th March, 1810, which declares that no devise or legacy, in favour of a child or other lineal descendant of a testator, shall be deemed to lapse by reason of the death of such child, &e., in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator, &,c., was intended to give a benefit to the issue, and not to confer any right upon the devisee or legatee, to control the devise or legacy.</p> <p>% Therefore, where A. made her will, by which she devised and bequeathed certain real estate to her son B., and then B. made his will, and devised all his estate among his children, and afterwards died in the lifetime of A., leaving several children; it was held, that the children of B. took under the will of A., and not under the will of B.</p> <p>3. Where one who was entitled to a share of the personal estate of a deceased ancestor, and also to a share of the proceeds of the real estate of the same ancestor, which had been sold under proceedings in partition, made her will, and therein bequeathed “ the moneys due or to become due, from the estate” of such ancestor; it was held, that the proceeds of the real estate, as well as the personal estate, passed by this will.</p>

At the trial on the 19th of January, 1836, before Jones, J„ the defendant’s counsel gave in evidence a bond (which was produced by the plaintiff on notice,) executed by George Emerick, the drawer of the note, to the plaintiff, dated the 27th day of February, 1832, in the penal sum of $10,Q00, with the following condition, “ The condition of this obligation is such, that if the above bounden George Emerick, his heirs, executors or administrators, shall, and do well and truly…

<p>■When a trustee becomes the purchaser of the trust estate, the cestui que trust may set aside the purchase.</p> <p>The principle extends not only to a trustee, properly so called, hut to judicial officers and all other persons who in any respect have a concern in the disposition and sale of the property of others; and it is immaterial whether the sale is public or private, judicial or otherwise, or for a bona fide price.</p> <p>By an indenture between the plaintiffs and defendants, (who were an incorporated company for making insurance on lives and granting annuities,) reciting that A. by his last will, &c. having charged his estate with the payment of an annuity of $500 to his widow, it was agreed between the legatees and executors that the same should be secured to her from certain funds therein mentioned and provided for by a purchase from the said company or otherwise; a part of which funds consisted in two bonds executed by B., each conditioned for the payment of $7000 in seven successive annual payments with interest, which bonds were secured by a mortgage of certain real estate; and reciting among other things, that it had been agreed to purchase the said annuity of the company, and that it had become necessary to sell and dispose of the said bonds and mortgage; it was witnessed that,the plaintiffs, in consideration of $8000 to them paid (for the purposes aforesaid and to the intent that the said agreements should be fulfilled) by the said company, had assigned, &e. the said bonds and mortgage, and the money thereby secured, (then amounting and reduced to $10,000 in all,) and the mortgaged premises, to the said company, their successors and assigns forever: Provided, that when the company should receive any of the instalments payable on the said bonds, the amount so received should be deemed to be on account of the said $8000, and that the interest received by them should be applied in like manner to the payment of interest on the said sum of $8000 and the balance or residue paid to the plaintiffs : and further, that when the company should have received the full amount of $8000, then all their estate and interest, power and authority should cease, and if there should bo in their possession any balance or surplus, they would in like manner pay it over: and further, that a paramount right of purchasing the last instalment in each bond should be reserved to the company ; but if they should not purchase the same, they would not interfere with the recovery thereof, but on demand re-assign the same to the plaintiffs, &c.: and further, that the said company should have full power to extend or alter the time ibr paying any instalment except the last, but in such ease such instalment should be deemed and accounted for by the said company as if the same had been actually paid off, &c.: and finally, the plaintiffs appointed the said company their attorney for them and in their names, (if necessary,) but for their own use, to sue for, recover and receive from the obligor the sum of money due upon the said bond, &c.: Held, that this instrument did not make the defendants trustees for the plaintiffs in any other respect than to pay over to them any surplus that they might receive beyond the $8000 and interest; and the defendants having, after the last instalment became due, brought suit upon the mortgage, and by virtue of an execution sold the mortgaged premises at sheriff’s sale, and purchased the same for $7000, and having afterwards sold the same by private contract for $10,000, it was held that they had a right so to purchase, and that they were not accountable to the plaintiffs for the profits made by them.</p>

<p>Upon a writ of error to the Court of Common Pleas for the county of Northampton, the case was thus:—</p> <p>Jacob Sterner and Michael Altemus, administrators of the goods, &c. of Michael Sterner, deceased, brought an action of covenant in that court, to April Term, 1835, against John Gower.</p> <p>The first count of the declaration recited the execution of certain ' articles of agreement, dated the 14th day of September, 1827, whereby Michael Sterner, the intestate, covenanted “ on or before the 1st of November, next ensuing the date, by good and lawful deed or deeds, well and sufficiently to grant, convey and assure unto the said John Gower, his heirs and assigns, in fee simple, clear of all incumbrances, a certain tract of land, situate in said township of Hamilton, beginning at a large black oak tree, a corner of John Young’s land, thence in a direct line to the east corner of the house occupied by John Brake, thence by or near the old smithshop to a middle fence, and in the same direction on as far as the said Michael Sterner’s land extends, thence along John Jones’ line to the line of the old tract, thence to follow the lines of the said old tract to include the whole thereof; and also, all the land belonging to the said Michael Sterner, east and north of the two first mentioned lines or courses, containing one hundred and forty-five acres." In consideration whereof, the said John Gower, &c. covenanted on the execution of the deed or deeds as aforesaid, well and truly to pay or cause to be paid unto the said Michael Sterner, his executors, administrators, or assigns, the sum of one thousand dollars, in manner following, to wit: “ The amount of the judgment which Rudolph Drach holds against the said Michael Sterner, to be paid' on the delivery of said deed, and seventy-five dollars annually until the remainder is paid. The first to be paid on the first day of April, a. d. 1829, and the said John Gower is to advance as much money to the said Michael Sterner, as will pay for patenting the said tract of land; and upon his, the said John Gower, paying the money aforesaid, and executing notes or bonds for the payments aforesaid, the said Michael Sterner to give unto the said John Gower possession of the premises.” The declaration then proceeded, “ And whereas, on the same day and year first aforesaid, at the county aforesaid, and at the time of sealing, signing and delivering of the articles of agreement aforesaid, it was verbally agreed by and between the said Michael Sterner and the said John Gower, that the said tract of land should-be measured according to the metes and bounds in the said articles of agreement mentioned, and the number of acres therein contained precisely determined. And it was then and there further agreed by and between the said John Gower and Michael Sterner, that if the said tract of land should be found to contain more than one hundred and forty-five acres, then the said John Gower should pay to the said Michael Sterner, at the rate of one thousand dollars for one hundred and forty-five acres, for each and every acre that should be contained therein, over and above the said one hundred and forty-five acres therein mentioned as aforesaid; which said two last mentioned agreements it was then and there intended by the parties should have been inserted in the aforesaid articles of agreement, but were omitted therefrom by the mistake of the scrivener; and that afterwards, viz. on the first day of October, in the year last aforesaid, at the county aforesaid, the said tract of land was surveyed and the quantity therein contained was ascertained to be one hundred and seventy-two acres and one hundred and fifteen perches, with the usual allowance, &c. And whereas, afterwards, viz. on the same day and year aforesaid, at the county aforesaid, it was further verbally agreed by and between the said Michael Sterner and the said John Gower, that the time for the execution of the said conveyances for a part of the said tract of land, to wit, for one hundred and fifty-nine acres, part thereof as aforesaid, should be changed, and that the same should be made and executed on the twenty-sixth day of November then next, instead of the first day of November then next, as was in and by the said articles of agreement stipulated and provided.” The declaration then averred performance on the part of the intestate, the execution and delivery of deeds, &c. and the neglect and refusal of the defendant to perform the contract on his part, or to pay the $1000 for the 145 acres, or for the additional 27 acres and 115 perches contained in the tract, agreeably to the survey, at the rate of $1000 for 145 acres—and then proceeded to negative in detail the performances and payments required of him.</p> <p>The second count set forth the written contract, and the parol extension of the time for performing it by the execution and delivery of the deed for a part of the premises, for which no patent had been obtained until the 26th of November, then next; the performance by the intestate of the contract on his part; and averment of non performance by the defendant.</p> <p>On the trial before Judge Mallery, at August Term, 1835, the plaintiff gave in evidence the articles of agreement, mentioned in the declaration, dated the 14th day of September, 1827. Also a deed executed by Michael Sterner, dated the 1st of October, 1827, whereby he conveyed to the defendant 13 acres and 115 perches of land, for the consideration of $100; with a receipt for the purchase money subjoined.</p> <p>Also, a deed executed by Michael Sterner, dated 21st November, 1827, whereby he conveyed to the defendant, 159 acres of land, for the consideration of $900 ; with a receipt for the purchase money subjoined.</p> <p>The plaintiffs then called. Michael Meisner, Esq. as a witness, and offere4 to prove by him and other witnesses ;—</p> <p>“ That at the time the article of agreement on which the suit is brought was executed, it was agreed by the parties thereto, that the land agreed to be sold and conveyed by the said Sterner to the said Gower, should be surveyed, and that if the tract should be found to contain more than 145 acres, the surplus should be paid for by the said Gower, at the rate of $1000 for 145 acres, and on the same terms and payments as are mentioned in the said article.</p> <p>That this was part of the original contract, and the parties directed the scrivener to insert it in the said articles of agreement, and that it was omitted entirely through his mistake. That the defendant has frequently said, both before and since the execution of the deed for the premises in the said article of agreement mentioned, that he had purchased the same at the rate of $1000 for 145 acres, and that he was bound to pay Sterner or his representatives at that rate for the land; and that the sum which he was bound to pay them considerably exceeded one thousand dollars.”</p> <p>To the admission of which evidence, the defendant by his counsel objected, on the ground that such testimony was inadmissible to support an action of covenant, and went to set up a new and distinct contract for the one which was in writing, and wholly inconsistent therewith; and that parol evidence was not admissible in this issue, to vary the written contract between the parties, after the plaintiffs had shown the completion of the contract by the execution and delivery of the deeds for the premises; and that the same was irrelevant to the issue trying.</p> <p>. The court, however, admitted the evidence, and the defendant took a bill of exceptions.</p> <p>In his charge to the jury, his Honour, the President, told them that they were entitled to take the parol evidence in connection with the articles of agreement, and the other written evidence in the cause. And that the defendant was not entitled to interest on the money paid by him for patenting the land; it being the construction given by the court to the contract, that the money for patenting was to be the cash part of the payment, to be paid down by him.</p> <p>The defendant excepted, also to this charge, and assigned for error,</p> <p>“ 1. The admission of the parol evidence.</p> <p>2. So much of the charge as instructed the jury that the evidence of the parol variance, alteration or difference in the contract from the written agreement, if credited, was sufficient to sustain the action in the varied form in which such parol evidence presented it to the court and jury.</p> <p>3. So much of the charge as instructed the jury that the plaintiff in error was not to be allowed interest on the sums advanced for patenting the land, &c. beyond the payments specified in the articles of agreement.”</p>

<p>This was an appeal by Robert Lewis, from the Orphans’ Court of Delaware County, where certain proceedings had taken plaice in partition, under the following circumstances.</p> <p>Azariah Lewis of Newtown township, in the county of Delaware, died on the second day of July, 1831, seized of the real estate which was the subject of the proceedings in this case, .and leaving a paper writing purporting to be his last will and testament, wherein the said real estate was devised to his són Robert Lewis the appellant in fee, subject to the payment of certain legacies, and also to certain privileges to his daughter Hannah Lewis. Against the probate of this paper a caveat was entered in the office of the register of said county; a register’s court was called, and an issue directed to the Court of Common Pleas to try the question whether the paper writing was or was not the last will and testament of Azariah Lewis, deceased. In November of the same year the issue was tried, and a verdict was rendered in favour of the plaintiff confirming the said paper writing; but the judgment on the verdict was reversed on a writ of error to the Supreme Court, for an erroneous direction of the court to the jury upon the effect of certain evidence.*- The issue came on again to be tried in the month of August, 1834, when a verdict was rendered in favour of the defendant and condemning the said paper writing; and the judgment on this verdict was affirmed by the Supreme Court.† Robert Lewis, however, continued in possession of the real estate under the paper writing purporting to be a ■will.</p> <p>On the 8th of-May, 1835, Henry Pratt presented his petition to the Orphans’ Court of Delaware County, setting forth in substance that Azariah Lewis lately died intestate, leaving a widow named Hannah, since deceased, and issue three children, to survive him, to wit, Margaret, intermarried with Jacob Maulé, Hannah Lewis and Robert Lewis, and also several grandchildren, viz. Susan intermarried with Henry Pratt the petitioner, and Unity Garrett (the said Susan and Unity being children of Unity Garrett, a daughter of said decedent who was intermarried with Jehu Garrett and died in the life-time of said decedent,) and also Hannah intermarried with Anthony Baker, Adam B. Williamson, Azariah L. Williamson, Enos Williamson, Jun., Walter Williamson and Elizabeth Williamson, the said Hannah, Adam, Azariah, Sarah, Enos, Walter and Elizabeth being children of Sarah Williamson a daughter of the said decedent, who was intermarried with the said Enos Williamson, and died in the life-time of the said decedent; and that the said decedent died seized in fee of a certain plantation and tract, situate in the township of Newtown in the county aforesaid, bounded by lands of Eli Lewis and others, and containing one hundred and sixty acres more or less; and praying the court to award an inquest to make partition or valuation of the premises, &c„</p> <p>This petition was held under advisement by the said court, from the 8th of May to the 24th of November following, when the following affidavit was presented on the part of Robert Lewis the appellant, in opposition to the prayer of the petition, and ordered by the said court tó be filed.</p> <p>“ Delaware county,, ss.</p> <p>Robert Lewis being affirmed according to law, says that the aforesaid Azariah Lewis gave and devised the plantation and tract of land, in the said petition mentioned- and described, to this affirmant; that the said affirmant is now seized and hath actual possession of said real estate under and by virtue of said devise, and that he holds and claims to hold and enjoy the same- under and by virtue thereof.</p> <p>Robert Lewis.”</p> <p>Affirmed and subscribed before me, a Justice of the peace, in and for said.</p> <p>County, Nov. 24.1835.</p> <p>Abraham Kerlijv.”</p> <p>On the same day an inquest was awarded, returnable the fourth Monday in Feb. 1836.</p> <p>On the 9th of February, 1836, the writ of partition was executed, and was returned on. the 22d of February following. The inquest found that the property could not be parted and divided without prejudice to the whole; they therefore valued and appraised the same at a certain sum. On the same day the inquisition was confirmed nisi, and the following exceptions to the confirmation of the inquisition were filed.</p> <p>“Exception 1st. The aforesaid real estate was devised to the exceptor by the last will and testament of Azariah Lewis, is now held by the exceptor under and by virtue of the said devise, and held by him adversely to the heirs at law of the said Azariah Lewis; is in his occupation and possession, arid therefore not the subject of an inquest under the authority of the Orphans’ Court.</p> <p>Exception 2d. The said exceptor is the sole owner of the said real estate, and is in full and complete possession of the same.</p> <p>Exception 3d. Neither Anthony Baker nor Hannah Baker, nor Caleb or Sarah West have any interest whatever in the said real estate.”</p> <p>Whereupon a rule was granted upon the petitioner, to show cause why the said inquisition and return should not be set aside; returnable on the fourth Monday in May following.</p> <p>On the 22d of August 1836, after argument, the opinion of the Court was delivered by Judge Darlinotoií, as follows :—</p> <p>“ Upon the petition of Henry Pratt who intermarried with one of the lineal descendants of Azariah Lewis, deceased, to this Orphans’ Court, setting forth that he died intestate, seized of certain real estate in the township of Newtown, a writ was awarded to the sheriff commanding him, that he should cause the said real estate to be parted and divided to and among the children and representatives of the said deceased, if such, &c. otherwise to value and appraise the same according to law: The sheriff has returned a valuation which is offered for confirmation. Robert Lewis, the only son of Azariah Lewis, has filed three exceptions, the last of which has not been pressed in the argument, and the two first are in substance, but one, viz.: that the real estate which is supposed to be the subject of these proceedings, is not held in common between him and the other parties named, but that he is the sole owner ; it being devised to him by the last will and testament of Azariah Lewis, deceased.</p> <p>The facts proved and conceded are, that Azariah Lewis died in the year 1831, seized of the real estate in question, leaving a paper writing purporting to be his last will and testament, wherein and whereby this real estate was devised to his son, Robert Lewis, in fee. Against the probate of this paper a caveat was entered in the office of the Register, a Register’s Court called and an issue directed to the Court of Common Pleas to try the question, whether the paper writing was or was not the last will and testament of Azariah Lewis, deceased. In November 1831 the issue came on to be tried and a verdict was rendered in favour of the plaintiff, but the judgment on the verdict was reversed for an erroneous direction of the Court to the jury upon the effect of certain evidence. The issue came on again to be tried in the month of August 1834, when a verdict was- rendered for the defendant, condemning the paper in question as the last will and testament of Azariah Lewis, deceased ; and the judgment on this verdict was affirmed upon a writ of error to the Supreme Court. So the matter as to the contested will yet rests. Robert Lewis however continues in possession of the real estate, and'claims to hold it as his separate estate under this paper purporting to be a will.</p> <p>• The proceeding to obtain partition in the Orphans’ Court among the heirs of a decedent has always in some degree resembled, the bill for partition in Chancery; and the act of the 29th of March, 1832, entitled “An act relating to Orphans’ Courts,” seems to intend' that the jurisdiction shall be somewhat enlarged, and the proceedings still more closely assimilated to those of a Court of Chancery. But no provision has ever been made by the legislature for the case-which is not unfrequent in Chancery, of a party preferring his bill for partition, whose title to his alleged purpart is denied or disputed or enveloped in difficulty and doubt. In such a case a Court of Chancery would either dismiss the bill or hold it for a reasonable time, until the plaintiff should make good his title at law by ejectment; or perhaps in a case where the party filing the bill was in possession, would direct an issue topnquire into the legal title; and it would seem by analogy to this course, that an Orphans’ Court should either stay proceedings or refuse to confirm them; as they did in the case of Spangler v. Rambler, (4 Serg. <5p Rawle, 192.) But it does not appear to us that even a Court of Chancery would withhold its proceeding to make partition for an indefinite length of time or until the right of the party should be irrevocably established at law. Ejectment is but a possessory action, although it is the usual method oí trying titles to land; and neither one ejectment nor many (in England) will settle the title; unless the conduct of the party be such as to require him to be perpetually enjoined by a bill of peace; and in Pennsylvania by the act of the 13th of April 1807, not less than two concurring verdicts in ejectment, and judgments entered thereon, can bar the right to lands ; yet it is presumed a- Court of Chancery would not delay partition longer than to have the title once established at law, or require the question to be more than once fairly submitted to a jury; Brown v. Brown, (2 Vern. 232;) and according to. the opinion of the Supreme Court in the case of Spangler v, Rambler above referred to, an Orphans’-Court need not even wait for one ejectment, if upon a feigned issue a verdict has passed against the paper writing alleged to be a will.</p> <p>If we were to direct an issue, as it is suggested, we may and ought, so as under the 55th section of the act relating to Orphans’ Courts to ascertain the fact, whether Azariah Lewis died intestate or not, and consequently whether the present plaintiff or petitioner was entitled to the undivided share which he claims to have laid off to him, or which is the same thing, whether the paper in question is or is not his last will and testament, would not the former issue directed and found against the validity of that paper and judgment rendered upon the verdict be conclusive 1 If so, such a proceeding would be useless.</p> <p>If we were to put the petitioner to his action at law, the termination of one ejectment in his favour would still leave the title doubtful and the question of will or no will as to real estate in a state of uncertainty, which could not be settled until a second or perhaps a third ejectment should be tried; and it is not contended that an Orphans’ Court should, more than a Court of Chancery, wait so long, but should proceed under the 36th section of the act on the application of any lineal descendant.</p> <p>Upon the whole we think the view taken by the Supreme Court in the case before referred to, (Spangler v. Rambler,) an unobjectionable one as applied to our laws relating to Orphans’ Courts; although we do not fully appreciate the force of all the reasoning of the late learned chief justice. It appears they took or rather recommended a course somewhat analogous to that which would have been required by a Court of Chancery, and instead of sending a party to law to establish his title by a single ejectment, they would •content themselves with the decision of the court and jury upon an issue of devisavit vel non. The Chief Justice says, “if an issue had been sent from the Register’s Court and the writing exhibited as the will of Michael Rambler been determined to be no will, it would have been the duty of the Register’s Court to have taken for granted • that Rambler died intestate, and the Orphans’ Court ought to have proceeded to a partition of his lands.” In this case such an issue was sent, and a verdict and judgment had against the paper now 'set up as a will.</p> <p>Rule discharged, and Inquisition confirmed.”</p> <p>On the 11th of November 1836, Robert Lewis appealed from the decree of the Orphans’ Court. '</p> <p>In this Court the following exceptions were filed:—</p> <p>“ 1. The said real estate is held, occupied and possessed by Robert Lewis, the aforesaid appellant, solely and in his own right as devisee of the said Azariah Lewis, deceased, and adversely to the claim of the said petitioner and appellee; and "is therefore not .subject to partition under the authority of the Orphans’ Court.</p> <p>% The Court erred in discharging the appellant’s rule to show eause why the return to the writ of partition should not be set aside, and confirming the said inquisition.</p> <p>S. The Orphans’ Court had no jurisdiction of the matter.”</p>

This was a writ of error to the Court of Common Pleas of Lehigh county, in which William Beyer brought an action of replevin against William Fenstermacher and George Plortz.

Qrr a writ of error to the District Court for the City and County of Philadelphia, it appeared that an action of ejectment was brought in that Court, by David Hartley, and Sarah Ann his wife, in her own right, Jane Pennell, and Edward Pennell, a minor, by N. R. Potts, his guardian, and John C. Jones, against Isaac H. Jones, Peter Weyant, Henry Moore, Isaac Rush, and others, to recover a certain tract of land in the county of Philadelphia.

<p>CERTIORARI,</p> <p>1. The act of the 16th of June, 1836, “ relating to the jurisdiction and powers of the courts,” did not repeal the 7th sdction of the act of the 18lh of April, 1791, regulating the removal of indictments into the Supreme Court.</p> <p>2. A special allocatur is therefore necessary to authorise such a removal.</p> <p>3. The writ of certiorari is the proper mode of remoying an indictment into the Supreme Court.</p>

<p>Writ of error to the Court of Common Pleas, for the City and County of Philadelphia.</p> <p>In the Court below, Edward Whelan issued a scire facias under the mechanics’ lien-law, against Edwin J. Hill, upon a claim filed on the 15th of November, 1834, for $19 95; being for stone furnished by the plaintiff, for the construction of a certain building owned by the defendant.</p> <p>On the 16th of December, 1834, the plaintiff instituted a personal •action against the defendant, before an alderman, who after hearing the parties, gave judgment for the defendant.</p> <p>The scire facias on the claim, was issued on the 13th May, 1835. The defendant pleaded in bar, the former judgment in his favour, given by the alderman; to which the plaintiff demurred; and the Common Pleas gave judgment for the defendant on the demurrer.</p> <p>The plaintiff having removed the record to this Court, assigned the following errors:</p> <p>“ 1. The Court below erred, in deciding that the judgment of the alderman was conclusive between the parties in this cause.</p> <p>2. The Court below erred, in entering judgment for the defendant, upon the demurrer to his plea.”</p>

This was an appeal from a decree of the Court of Common Pleas for the city and county of Philadelphia, made on the settlement of the accounts of Isaac Norris, Esq., trustee of the estate of Ann Eliza Johnson.

Appeal by Wm. M'Laughlin, from a decree of the District Court for the City and County of Philadelphia, distributing the proceeds of a sheriff’s sale of a certain messuage and lot of ground, in the city of Philadelphia, sold by virtue of a writ of venditioni exponas, issued in an action brought by William McLaughlin against John Smith, administrator of John Mooney.

This was a writ of error to the Court of Common Pleas, of Montgomery County, to remove the record of an action upon the case brought by Christopher Yeakle against Jacob Nace* for disturbing a right of way. On the trial which took place on the 8th of September, 1836, it appeared in evidence that the lands of Yeakle and JVace were originally comprised in one large tract of one hundred and thirty-eight acres, three roods and seven perches* and were owned by Thomas Coombe.

<p>On a writ of error to the District Court for the City and County of Philadelphia, the case was as follows:—</p> <p>Charles Remington and James Remington, trading,under the firm of C. & J. Remington, brought an action on the case against Andrew D. Caldwell, to March Term, 1834, of that court. On the 10th of July, 1834, they filed a declaration in indebitatus assumpsit, containing the common money counts, and on an account stated; to which the defendant pleaded non assumpsit, and payment; with leave, &c. On the 17th of January, 183.5, the plaintiffs, by leave of the court, filed four new counts, as follows:—■</p> <p>“ And the said plaintiffs, by Charles Wheeler, their attorney, further complain and say, that at the county aforesaid, viz. on the first day of May, in the year 1829, the said defendant, in consideration that the said plaintiffs would cash the check of one Warnet Myers, on the Bank of the Northern Liberties, payable to the said defendant, by the name or description of Andrew Caldwell, or order, for $150, dated Philadelphia, May 9th, 1829, he, the said defendant, would guaranty the payment of the said check to the plaintiffs. And the said plaintiffs aver, that in pursuance of said contract, they cashed the said check, by paying the said defendant, viz. the said sum of $150. And the said plaintiffs aver, that they duly presented the check, having the order of the said defendant in their favour endorsed thereon, at the said bank, viz. on the said 9th day of May aforesaid, and demanded payment thereof, but received none. And they further aver, that they often afterwards demanded payment thei;eof at the bank aforesaid, without receiving any.</p> <p>And the plaintiffs further complain and say, that, viz. on the 9th day of May, 1829, one Warnet Myers, viz. at the county aforesaid, drew his check on the Bank of the Northern Liberties, in favour of the defendant, by the name or description of Andrew Caldwell, or order, for $150. And the said defendant, then and there, for the sum of $150, then and there paid to him by the plaintiffs,- endorsed the said check to the plaintiffs. And the plaintiffs aver, that on the day and year last aforesaid, they presented the said check at the said bank, and demanded payment thereof, but received none. And the said plaintiffs aver, that they immediately gave notice of the non-payment thereof to the'said defendant; by reason whereof the said defendant then and there became liable to pay the said plaintiffs the said sum of $150, and being so liable, he, the said defendant, in consideration thereof, assumed and promised the said plaintiffs, to pay them the said sum of money, when he, the said defendant should be thereunto requested.</p> <p>And the said plaintiffs further complain and say, that, viz. on the 9th day of May, 1829,'one Warnet Myers, viz. at the county aforesaid, drew his check on the Bank of the Northern Liberties, in favour of the defendant, by the name or description of Andrew Caldwell, or order, for $150; and the said defendant, for the sum of, viz. $150, then and there paid to him by the plaintiffs, endorsed the said check to the said plaintiffs; and the plaintiffs aver, that on the day and year last aforesaid, they presented the said check at the said bank, and demanded payment, but received none. And the said plaintiffs aver, that they gave due notice of the non-payment thereof to the said defendant, by reason whereof the said defendant then and there became liable to pay the said plaintiffs the said sum of $150 ; and, being so liable, he, the said defendant, in consideration thereof, assumed and promised the said plaintiffs, to pay them the said sum of money, when he should be thereunto requested.</p> <p>And the said plaintiffs further complain and say, that, viz. on the 1st day of May, 1829, one Warnet Myers, viz. at the county aforesaid, drew his check in favour of"the defendant, by the-name or description of Andrew Caldwell, or order, for $150, upon the Bank of the Northern Liberties. And the said defendant, for the sum, viz. of $150, then and there paid to him by the plaintiffs, endorsed the said check to the said plaintiffs; and in consideration of the said prompt and immediate, payment of the said money, the said defendant agreed to waive notice of the refusal by the bank to pay the check, at maturity, if the bank should refuse to pay it, and would be himself responsible for the payment thereof. And the said plaintiffs aver, that at the maturity of the said check, to wit, on the 9th day of May last aforesaid, they presented the said check at the said bank, and demanded payment, but received none, by reason whereof, the said defendant then and there became liable to pky the said plaintiffs the said sum of $150, and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the same day and year lkst aforesaid, viz. at the county aforesaid, assumed and promised the said plaintiffs to pay them the said sum of money, when he should be thereunto requested.</p> <p>Charles Wheeler.”</p> <p>On the 24th of January, 1835, the defendant obtained a rule to show cause why the above counts should not be struck off; which rule, on the 31st of January, 1835, was discharged.</p> <p>The cause came on for trial on these pleadings before Jones, J. on the 18th of May, 1836, when the plaintiff’s counsel produced as a witness one Richard Richmond, who, being duly sworn, said, “I was present when Caldwell presented this check” (being the same check then exhibibited to him by plaintiff’s counsel, and after-wards given in evidence as hereinafter stated) “ to Remington to change. Remington refused changing the check, because he did not think Warnet Myers was good for the money. Caldwell told Remington that he (Caldwell) would be responsible for the check, and if he would change it, he might take out the amount of a bill. Remington then counted him down $75, and gave him a check for the balance, deducting the bill. I presented the check at the bank twice. Payment was refused at the bank. I recollect Caldwell’s stopping one day at Remington’s and telling him if he would present the check on a certain day, he (Caldwell) thought it would be paid. I do not know whether the check was presented on the day then named by Caldwell, or not. Some time afterwards I heard Remington say to Caldwell,‘You ought to pay this check.’ Caldwell replied, “ No, you took the check on your own responsibility, and I think you ought to lose it.’. I think the check was dated ahead.” Being cross-examined, he said: “ The check which I have stated Caldwell passed to Remington was dated the 9th of May, 1830. It was for $150. I never saw Warnet Myers write, I do not know his handwriting. I never saw Andrew D. Caldwell write, I do not know his handwriting. I put no mark on the check at the time, by which I can say this is the same check which Caldwell passed to Remington. I never presented any check of W. Myers’s at bank, except one for $150. I do not know that this check now shown to me (the same exhibited to witness by plaintiff’s counsel) is the same which I saw Caldwell pass to Remington, except that I never presented but one check of W. Myers’s to bank, except one for $150. I do not know that this one is the same. I did not see the check when Caldwell passed it to Remington. I was a yard off.” Whereupon the plaintiff’s counsel offered to give in evidence the check which he had exhibited to the witness, purporting to be drawn by W. Myers, and endorsed by Andrew D. Caldwell, dated May 9th, 1820, for $ 150, to which the defendant’s counsel objected; but the learned judge overruled the objection, and admitted said check to be given in evidence, and referred it to the jury to decide upon the evidence aforesaid, whether the check so offered was the check to which the transaction between the parties spoken of by the witness as aforesaid, related ; and the same was accordingly given in evidence.</p> <p>The counsel for the defendants took a bill of exceptions to the opinion of the Court admitting the check in evidence ; and a verdict having been rendered for the plaintiffs, removed the record to this court, and assigned the following errors :</p> <p>“ 1. That the court below erred in permitting the plaintiff below on the 17th January, 1835, to file, four new counts on causes of action entirely new, distinct and different from those on which the action was originally brought and the narr. filed.</p> <p>2. That the judge who tried the cause erred in permitting the paper purporting to be a check, dated May 9th, 1829, to be given in evidence; the same not having been identified, and no evidence having been given of the handwriting of the drawer or endorser thereof.</p> <p>• 3. That the judge who tried the cause erred in referring it to the jury to decide whether the said check was the check to which the transaction between the parties spoken of by Richard Richmond related: there being no evidence that it was the same check, for the jury to pass upon.”</p>

<p>This was a writ of error to the Court of Common Pleas of the County of Northampton.</p> <p>In the court below,-Elizabeth Kauffman brought an action on the case against “ John Kauffman and John Kauffman-the younger, executors of the last will of Jacob Kauffman, deceased; Jacob Kauffman, devisee of the said deceased, and Samuel Jacoby, tenant of the lands and tenements whereof the said deceased 'died seised, and which he devised to Jacob Kauffman.” The process was returned “ nihil,” as to Jacob Kauffman the devisee.</p> <p>The declaration, which was in assumpsit, set forth that “ Whereas the said Jacob Kauffman, now deceased, to wit: on the 5th day of April, in the year of our Lord'one thousand eight hundred and fifteen, at the county aforesaid, made his last will and testament in writing, and executed the same in due form of law, and did thereby, amongst other things, give and devise to" his wife Elizabeth, a certain tract of thirty-six acres, situated in Lower Saucon township, with a dwelling-house and stable, and certain other improvements to be erected thereon by his executors, to be occupied and enjoyed by her during her natural life, and directed his executors to place at interest the sum of £200, and pay the interest thence arising, to his said wife, in half yearly payments, the first to be made in six months after his, the testator’s decease; and he thereby also devised to his son, John Kauffman, a certain tract of seventy-eight acres of land, situated in Lower Saucon township aforesaid; and directed, among other things, that he should deliver thereout, unto the said Elizabeth, annually, during her natural life, six bushels of rye, two bushels of wheat, three bushels of buckwheat, and four bushels of Indian corn, all in good and merchantable grain, and fifty pounds of good fat pork. And he also devised to his son, Jacob Kauffman, the plantation on which the testator then lived, containing one hundred and six acres, under, among other, the following conditions: that he, the said Jacob should deliver unto the said Elizabeth, annually, during her natural life, six bushels of rye, two bushels of wheat, three bushels of buckwheat, and four bushels of Indian corn, all in good merchantable grain, and fifty pounds of good fat pork.</p> <p>And whereas afterwards, and after the death of the said Jacob Kauffman; and before the probate of the said last will and testament; to wit: on the second day of May, in the year last aforesaid, certain disputes having arisen among the heirs and devisees of the said Jacob Kauffman, deceased, Jbe same were by the consent and agreement of the said John Kauffman, one of the executors, named in the said last will and testament, and guardian of the minor children of the said Jacob Kauffman, deceased, of the said John Kauffman, the younger, the other executor, and one of the devisees therein named, of Christian Gernet intermarried wfith Elizabeth, one of the daughters of the said Jacob Kauffman, deceased, and of Jacob Kauffman; being all the-persons interested' in the said estate, submitted to Matthias Riegel by the name of Matthew Riegel, Christian Roth and Philip, Bahl, who were to view the premises and make report to the said parties of their opinion on the aforesaid premises. And the said Matthias Riegel, Christian Roth and Philip Bahl, did thereupon afterwards, to wit: on the fifth day of May, in the year last aforesaid, at the county aforesaid, make their report in writing, and publish their award by and between the said parties amongst other things in manner following, that is to say—‘ First, we do report and award, that John Kauffman and Jacob Kauffman, the devisees in the said last will and testament mentioned, shall at their joint costs and charges, purchase, procure and deliver, unto their mother, the widow, to her only absolute use and disposal, one good milch cow, one complete bed and bedstead, with all appurtenances, one iron ten plated stove complete, and sufficient pipe, one table, two chairs, one iron pot, one frying pan, and other kitchen furniture as she may be in need of. And in case the said Elizabeth, their mother, should be taken sick, or otherwise become helpless during her widowhood, the said John Kauffman and Jacob Kauffman, shall at their joint costs and charges find and provide,, a sufficient nurse for her. Further the said John Kauffman and Jacob Kauffman, shall at their own joint costs and charges, dig and wall up a well with a pump fixed therein, if the depth of the well will admit thereof, on the lot of land devised to the said Elizabeth, by the said Jacob Kauffman, during her lifetime, as near the house to be erected thereon as can conveniently be done. And further the said John Kauffman and Jacob Kauffman, shall jointly, yearly and every year, during the widowhood of the said Elizabeth, their mother, cut and haul to her house from off the premises devised to her, six cords of firewood; shall further deliver to her annually, one barrel of cider, provided any apples grow on the premises devised to them, and shall allow unto her so many apples as she may want. And each of them, the said John Kauffman and Jacob Kauffman, shall annually deliver unto the said Elizabeth, their mother, three bushels of good rye, two bushels of wheat, three bushels of buckwheat, and four bushels of Indian corn, over and above the quantity saddled' by the last will and testament of the said Jacob Kauffman, on the estate devised to them by the said testator. And each of them, the said John Kauffman and Jacob Kauffman, shall annually in half yearly payments, pay unto the said Elizabeth, their mother, over and above the twelve pounds saddled on the estates devised to them respectively, the sum ' of six pounds, that is, John Kauffman six months after the decease of the said Jacob Kauffman, the sum of three pounds, and at the end of one year after the decease of Jacob Kauffman, the sum of three pounds money aforesaid. And Jacob Kauffman, six months after the decease of the said Jacob Kauffman, the sum of three pounds, and at the end of one year after the decease of Jacob Kauffman, deceased, the sum of three pounds money aforesaid. And further, each of them shall annually deliver into the stable, on the premises devised to her, one ton of well cured hay’—Which said award was afterwards to wit: on the same day and year aforesaid, at the county aforesaid, made known to- and read to the parties thereto aforesaid, and assented and agreed to by them respectively.</p> <p>And thereupon afterwards, to wit: on the ninth day of May, in the year of our Lord last aforesaid, at the county aforesaid, the said last will and testament of the said Jacob Kauffman, deceased, was duly proved before the register for the probate of wills, &c, in and for the county of Northampton, 'and letters testamentary thereon issued to the said John Kauffman, and John Kauffman, jr. the executor therein named, who took upon themselves the burthen of the execution thereof. And the said submission and award, and the .assent of the parties thereto having been duly acknowledged according to law before Joseph Horsfield, Esquire, one of the justices of the peace in and for the county of Northampton, aforesaid, was thereupon ; to wit: on the said ninth day of May, in the year last aforesaid, at the county aforesaid, recorded in the office for recording of deeds, in and for the said county of Northampton, in deed book A, volume 4, page 303, &c. as in and by the said record relation being thereunto had will more fully and at large appear.</p> <p>And whereas afterwards, to wit: on the twenty-ninth day of November, in the year of our Lord one thousand eight hundred and twenty-nine, the said Jacob Kauffman sold and conveyed ninety-one acres, parcel of the said premises so as aforesaid devised to him by the said last will and testament of the said Jacob Kauffman, deceased, unto one Charles Krámer, and to his heirs and assigns; and it was thereupon understood and agreed by and between the said parties, and the said Charles Kramer then and there undertook and agreed, and then and there faithfully promised the said.1 Elizabeth, that the said premises so then and there conveyed to him should be liable for as well the said sum of money, duties and services charged upon and made payable, and to be rendered and performed out of the whole of the said premises so as aforesaid devised to the said Elizabeth, as well by the said last will and testament as by the said award; and that he the said Charles, his heirs and assigns, holding and occupying the, said premises, would well and truly render, pay and perform the same, in the same manner that he the said Jacob Kauffman, whilst owner of the whole of the said premises was'liable to pay and perform, and had paid and performed the same.</p> <p>And whereas afterwards, to wit: on the fourth day of December, in the year of our Lord one thousand eight hundred and twenty-nine, at the county aforesaid, the said Charles Kramer and Julian ■ his wife, by their indenture did for the consideration therein mentioned, and for the further consideration of the paying and performing by the said Samuel Jacoby, of the said several sums of money, services and duties, so as aforesaid due, owing and to be performed and paid by the said Jacob Kauffman, out of the whole of the said premises; and by the agreement of the said Charles as aforesaid, by the said Charles, his heirs and assigns, out of the said tract of ninety-one acres so as aforesaid conveyed to the said Charles; did grant and convey to the said Samuel Jacoby, his heirs and assigns, a certain tract of twenty-four acres and forty-eight perches, parcel •of the said tract so as aforesaid devised to the said Jacob Kauffman, as aforesaid. In consideration whereof the said Samuel Jacoby undertook, and then and there faithfully promised the said Elizabeth Kauffman, to pay and deliver and to perform and render to her the ■said Elizabeth, all and singular the sums of money, articles, things, services and duties, which were to be paid, done and performed, out -of the whole of the said premises, so as aforesaid devised to the said Jacob Kauffman to the said Elizabeth, as well by and according to the terms of the said last will and testament as by the said award. And that he the said Samuel Jacoby, his heirs and assigns, holding and occupying the said premises, would well and truly pay and perform the same in the same manner that he the said Jacob Kauffman whilst owner of the whole of the. said premises was liable to pay and perform, and had paid and performed the same.</p> <p>And the said Elizabeth further in fact says, that the said Jacob Kauffman, the devisee, during all the time in wljich he held the said premises, to wit, from the decease of the said testator until the twenty-seventh day of November, in the year of our Lord one thousand eight hundred and twenty-nine, when he, so as aforesaid, sold and conveyed to the aforesaid Charles Kramer, did yearly and every year, pay to the said Elizabeth, in half-yearly payments, the sum of sixteen dollars, the interest of a moiety of the said sum of two hundred pounds by the said last will and testament set apart for the use of the said Elizabeth, and did also deliver to her, the said Elizabeth, annually, during all the time last aforesaid, six bushels of rye, two bushel's of wheat, three bushels of buckwheat, four bushels of Indian corn, in good and merchantable grain, and fifty pounds of fat pork, pursuant to the directions of the said last will and testament; and did also, during all the time last aforesaid, deliver to her, the said Elizabeth, three cords of fire-wood, half a barrel of cider, and allowed to her, the said Elizabeth, as many apples as she wanted; and did deliver to her, the said Elizabeth, yearly and every year, three bushels of good rye, two bushels of wheat, three bushels of buckwheat, and four bushels of Indian corn, over and above the quantity settled by the said last will- and testament on the estate devised-to him by the said testator, and did also pay annually in half-yearly payments to the said Elizabeth, the further sum of three pounds, over and above the said sum of six pounds settled on the said estate so devised to him, the said Jacob, by the said last will and testament; and did also annually deliver to her, the said Elizabeth, at the stable, on the premises so devised to her, the said Elizabeth, one ton of well cured hay, pursuant to the directions of the hereinbefore recited, award.</p> <p>Nevertheless, neither the said John Kauffman and John Kauffman, the younger, the executors, nor the said Jacob Kauffman, the devisee, nor the said Samuel Jacoby, the tenant, as aforesaid, nor hath any or either of them, or any other person, from the said 27th day of November, in the year of our Lord one thousand eight hundred and twenty-nine, until the day of the bringing of this suit, paid, rendered or delivered unto the said Elizabeth, the said sums of money or any of them, or the said articles, things, duties and services, or any them so directed to be paid, done, rendered, performed and delivered out of the said premises, so, as aforesaid, devised to the said Jacob Kauffman, as well by the said last will and testament as by the said award, although thereto repeatedly requested. But they, the said John Kauffman and John Kauffman, the younger, the executors, the said Jacob Kauffman, the devisee, and the said Samuel Jacoby, the tenant, have heretofore and during all the time last aforesaid, refused to pay, deliver and perform the same, and still do refuse to the damage of the said Elizabeth, one thousand dollars ; and therefore she brings suit, &c.”</p> <p>The defendants pleaded non assumpserunt; and issue being joined, the cause came on for trial before Judge Mallery on the 27th of January 1836, when the plaintiff gave in evidence the will of John Kauffman, deceased, the articles of agreement and award, and the deeds of conveyance and award mentioned in the declaration; and also gave parol evidence as to what took place at the time of the sales and execution of the deeds. The defendants also gave parol evidence in relation to the same matter. The Judge charged the jury, that the plaintiff could not recover unless it had been expressly agreed, that the defendant, Jacoby, took the premises subject to the matters specified in th,e award; and unless the reservation was omitted to be inserted in the deed of conveyance by the mistake of the scrivener.</p> <p>The jury found “ that at the time when Samuel Jacoby purchased the 24 acres 48 perches of land mentioned in the declaration, he agreed to take the same subject to the sums of money, articles and services, enumerated as well in the last will and testament of Jacob Kauffman, deceased, as in the award of the arbitrators, mentioned in the plaintiff’s declaration, to be paid, rendered, doné and performed, by Jacob Kauffman, the devisee therein named; and that in the deed executed by Charles Kramer and wife to Samuel Jacoby, the articles enumerated in the said award, were omitted to be enumerated and reserved by the mistake of the scrivener. If, under these facts, the Court shall be of opinion that the plaintiff is entitled to recover, then the jury find for the plaintiff, $142 28 to be levied of the said tract of 24 acres 48 perches of land so conveyed to him, the said Samuel Jacoby, as mentioned in the plaintiff’s declaration, together with costs of suit.”</p> <p>The defendant’s counsel moved for a new trial, and in arrest of judgment, and filed several reasons. After argument, the Court, on the 22d.of August, 1836, discharged the motion for a new trial, and ordered judgment to be entered for the defendants. Judge Banks, (who succeeded Judge Mallery, as President of the Courts of Common Pleas of that district,) delivered the judgment of the Court as follows:</p> <p>“ It would appear from the declaration, that the suit was brought to recover the money and articles to which the plaintiff was entitled by the will, as well as the money and services -and articles she was entitled to from Jacob under the award. It is now stated, that the recovery was had only for the money and articles the plaintiff was entitled to under the award. The calculation which was sent out with the jury, has been shown us, from which it would appear that this was so.</p> <p>Many reasons have been urged for a new trial, and as many in arrest of judgment. We will not notice them all, as the individual who delivers this opinion, was not on the bench when the trial was had. His opinion will be formed chiefly from an examination of the record. The suit is brought against all the defendants, as if this claim was a charge on the land mentioned in the declaration.</p> <p>The claim now made, does not arise' out of the will of the testator, but out of the award. By the terms- of the award, the money, services, &c. are not made a charge upon the land; neither are they made a charge by the terms of their agreement to abide by the award; nor is it laid in the declaration, that they were a charge upon the land, by virtue of the award or of the agreement; nor is it found to be the fact by the verdict.</p> <p>By the award, John and Jacob are to procure and deliver the articles, &c. at their joint costs and charges in part, and each to perform certain things, and deliver certain articles individually, and each to pay a certain sum of money. There is nothing in this award, that would make these things <a charge upon the land.*</p> <p>There is in the agreement, a stipulation that the parties fully $gree to the award, and it then proceeds, “ we do hereby covenant, grant and agree for ourselves, our heirs, executors and administrators, that we will abide by the same; and faithfully fulfil the same in all and every its various parts, to the full intent and meaning thereof.” ...</p> <p>This agreement does not make the matters mentioned in the award, a charge upon the land; nor is it very easy to see how the executors can be made parties to this suit. It does not arise out of the will. The claim is not founded on the will. This agreement is individually for themselves and their executors, &c. and heirs. Each one- binds himself; and the executors do not bind the estate of their testator for the performance of thjs award, nor do we know that they could do so. The claim m.ay afterwards have been made a charge on the land by Jacob Kauffman, Kramer, and Jacoby, but that would not entitle the plaintiff to judgment , in this case. If that were so, the executors would not be in any .way chargeable, nor would the estate of their testator be in any manner subject to the payment of the sum now claimed. ■ Npr is the estate of old Jacob Kauffman at all liable to the payment of the money, or for the perfonnance of the matters contained in this award. This claim so far as regards the executors of Jacob Kauffman, deceased, is not a charge upon the land either by the will of their testator, by law or by agreement. How then can judgment be entered in this case for the plaintiff.</p> <p>The case of Pidcoch v. Bye, is cited as -an authority; but that case is unlike this. There the sum claimed was a charge upon the land by express act of assembly, and the defendant had agreed to pay it. It is also urged upon us, that by this case it is decided that if a plaintiff has a cause of action, he may recover it in any form of suit. We do not think that any such principle is established by that case. In actions of this kind, the plaintiff must- have a good cause of action against the persons sued, or he cannot get judgment against them. There must be legal parties to the suit; and unless the action lies against all the defendants, the plaintiff cannot recover. It was. not necessary to join the executors in this case. The cause was not to be reached through them, -nor could it be reached through them for this claim. We think that the action cannot be maintained in its present form, and that on the facts found by the jury, the plaintiff is not entitled to judgment.</p> <p>The Court therefore enter judgment for the defendants.”</p> <p>The plaintiff sued out this writ of error, and assigned the following errors:—</p> <p>“ 1. That on a motion in arrest of judgment, the Court could not enter a- judgment for the defeñdant, but could only arrest the judgment.</p> <p>2. That there was no sufficient cause shown, for arresting the judgment, or entering a judgment for the defendants.</p> <p>3. The Court ought to have rendered judgment for the plaintiff, on the verdict of- the jury.”</p>

<p>Writ of error to the District Court for the City and County of Philadelphia, in which John H. Reid and William Leckie, co-partners under the firm of Reid and Leckie, brought an action of assumpsit, to December term 1833, against John Geoghegan.</p> <p>The declaration contained three counts. ' The first count was on the acceptance by the defendant, of a bill of exchange, dated Dublin, January 13th, 1826, payable 31 days after date, for thirty-six pounds sterling, drawn on the defendant by Thomas Morrison, payable to his own order, and endorsed by him. The second count was on a promissory note, drawn by<the defendant on the 23d day of December 1825, at Dublin, for £30 sterling payable two months after date in favour of Thomas Morrison, and by him endorsed. Thei’e was also a count for money lent, &c. The declaration averred, that at the time of the making of the bill of exchange and promissory note, the plaintiffs were and still are non-residents of the United States; to wit, that they are residents of Dublin in the kingdom of Ireland, &c.</p> <p>The defendant pleaded non assumpsit and payment, set-off, non assumpsit infra sex annos, actio non accrevit infra sex annos, &c. The plaintiff réplied non solvit, &c., and that the plaintiffs were and are non-residents, &c.</p> <p>The case was tried before Pettit, President, on the 2d of March 1836, when the plaintiff offered Thomas Morrison, the drawer of the bill and endorser of*4 the note, as a witness to prove the handwriting of the defendant. The defendant’s counsel objected to the competency of the witness; but the learned Judge admitted him, and the defendant’s counsel excepted to the decision.</p> <p>The Judge charged the jury that the plaintiffs having been beyond seas when the cause of action accrued; were not bound by the japse of six years since the bill and note were payable, but that upon the law the plaintiff was entitled to recover; to which also the defendant’s counsel excepted; and the jury found" for the plaintiff</p> <p>A rule to show cause why a new trial should not be granted, having’been discharged,* the defendant removed the record to this Court, and assigned the following errors, viz.:—</p> <p>“ 1st. That the Court below erred in admitting Thomas Morrison as a witness to prove the hánd-writing of John Geoghegan, the - defendant below.</p> <p>2d. That the Court erred in charging the jury, relative to the statute of limitations, and its effects and operations in this case.</p> <p>3d. That the saving clause in the 5th section of the act of 27th March 1713, about limitation of actions relating to persons beyond seas, does not extend to actions ori the case, brought to recover the amount of promissory notes or bills of exchange.</p> <p>4-th. That the issue formed by the plea of the statute of limitations, and the replication thereto, was insufficient to support the plaintiff’s cause of action.”</p>

<p>Error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought bv Archibald Robertson and George P. Little, against George Yohe.</p> <p>The plaintiffs declared in assumpsit.on a promissory note drawn by the defendant in favour of the plaintiffs, for $276, dated Philadelphia, February 14th, 1836, and payable on demand. The defendant pleaded non assumpsit, and payment with leave, &c.</p> <p>On the trial before Stroud, J. on the 18th day of February, 1836, the plaintiffs proved the hand-writing of the defendant, and gave the ' note in evidence.</p> <p>The defendant’s counsel then examined one Daniel M‘Intyre, who testified as follows:</p> <p>“ The plaintiffs were lottery brokers, and kept their office in the Shakespeare Buildings; the office was for the sale of foreign lottery tickets: it was the only office at whieh foreign lottery tickets could be furnished. I was in the employ of Yeates and M‘Intyre ; they sold Union Canal tickets only; the Union Canal tickets were furnished from their office, which was also in the Shakespeare Buildings. I was frequently in Robertson and Little’s office : their general mode was to take due bills similar to this, (the note given in evidence) for all tickets sold by them. The checks I received from Yohe were for Union Canal tickets; he never gave us a due bill for his Union Canal tickets.” Being examined on the part of the plaintiffs, he further said, “Robertson and Little also sold Union Canal tickets; Yohe dealt in lottery tickets.”</p> <p>The defendant then produced one Charles Rogers, who testified as follows: “I was in the employ of the plaintiffs in February, 1831. This note is filled up in my hand-writing;” and having produced a certain book, which he was required by a subpoena duces tecum to produce, he further testified, “ this is the plaintiffs’ sale book for the sale of foreign lottery tickets, this entry in the book— viz.</p> <p>Sale Book—New York Extra 4.</p> <p>1831.</p> <p>February 14th, - 44 tickets=Yolie—$176.’</p> <p>under date of 14th of February, 1831, is in my handwriting, and appears to be for the sále of forty-four tickets, in New York Lottery, extra 4, to Yohe, amounting to $176. I do not know, nor can I say that it forms a part of the consideration of this note. I should think from the similarity of the date of the entry and the date of the note, that it does; and it is impossible at this distance of time, and after so many transactions with Mr. Yohe, to have any recollection about it. I do not know of my own knowledge, that there were' any money transactions between the plaintiffs and the defendant; there might have been; the plaintiffs often lent money to their customers; transactions like these in this entry, occurred daily; there are several entries of similar amount ($176) in the book against defendant. This book exhibits nothing but sales of foreign lottery tickets; I cannot say what was the consideration of the remaining one hundred dollars of the note; we kept no ledger account with defendants, since I have been with the plaintiffs; I presume the $176 dollars of this note was for New York lottery tickets, but as I said before, I have no recollection on the subject; I judge from the entry merely.” Being cross-examined, he said, “ the plaintiffs also dealt in Union Canal lottery tickets; we often supplied Mr. Yohe with Union Canal tickets; we took due bills like this for all kinds of tickets; many entries occur in the books of sales of tickets, charged without the names of the purchasers; I have no other reason for my supposition as to the consideration of the $176, than the similarity of dates and the filling up of the note and entry in the book being in my handwriting; balances of previous sales were frequently .added and included in one due bill. There do not appear to b.e any charges for foreign tickets against the defendant which would make up the amount of this note; loans of cash were not entered, but a memorandum was made >on a slip of paper placed in the drawer, and at the next settlement with the customer, our practice was to include it in the note or due bill. I think in 1834,1 had charge of the collection of several notes of the plaintiffs’, this amongst them. I left word for the defendant to call at our office—he did, I asked him to pay the note, he was exceedingly abusive, used very harsh language, said he would never pay it; he did not deny the note—I think it was shown to him, but am not certain; he did not allege any want of consideration or illegality in the transaction.” Being re-examined on the part of the defendant, the following question was put to him, viz. “ can you from recollection name any sale of Union Canal tickets, the amount and day of sale to the defendant?” to which he answered, “Yohe’s name appears in several entries as a purchaser of Union Canal tickets, but I cannot pretend to recollect the dates or amounts of any such sale.” And being further interrogated, the witness said, “I cannot from recollection say I ever charged Mr. Yohe with any Union Canal tickets.”</p> <p>The defendant then produced John Ely, Jr., who testified as follows, viz. “ I am one of the house of Yates & M'Intyre, our office was exclusively for the sale of Union Canal tickets, we sold no other kind; there was no other office for the sale of foreign lottery tickets, but Robertson & Little’s : the brokers were supplied with their foreign lottery tickets by Robertson & Little. I have seen them have such due bills as these.”</p> <p>The testimony on the part of the defendant being closed, the plaintiffs’ counsel summed up his case, and the defendant’s counsel proceeded to address the court and jury, and argued “that the plaintiffs could not recover, the contract being for an illegal consideration, and requested the judge so to charge the jury; and further requested the judge to charge the jury, that if even one part of the note was given for a legal consideration, the other part being illegal, the whole note was void, and the verdict must be for the defendant.”</p> <p>The counsel for the defendant having concluded his address to the jury, the plaintiffs’ counsel presented to the judge three additional counts in assumpsit, viz. one for goods sold and delivered, and the others for money lent and advanced; to which the counsel for the defendant objected, but the learned judge delivered his opinion “ that he could not prevent the plaintiffs from filing the counts, it being a right given to them by law, over which he had no direction,” ■—to which opinion the counsel for the defendant excepted.</p> <p>The counsel for the plaintiffs having concluded his address to the jury, the judge charged them as follows.</p> <p>“ The promissory note given in evidence, on its face imports to have been given for a valuable consideration; and from the nature of this instrument, this is sufficient evidence of that fact, until disproved by. the defendant, which might have been done in this case, as the suit is between the original parties to this note. The first inquiry for you then is, has the defendant proved that it was not given for a legal consideration ? His defence is, that the consideration was the price of foreign lottery tickets. If from the evidence you are satisfied that this was so, for the whole amount of #276, your verdict should be for the defendant; and if you think that any part of the sum was for foreign lottery tickets, then the plaintiffs cannot recover on this note. They have however added, a few minutes since, other counts, one of which is for goods sold and delivered; and some loose evidence has been given of purchases of Union Canal lottery tickets by the defendant of the plaintiffs. If you can apply this evidence to such a purchase, you may find a corresponding part of the debt claimed by the plaintiffs, as due under this count.”</p> <p>The jury found for the plaintiffs the whole amount of their demand.</p> <p>In this court the following errors were assigned.</p> <p>1. “ That the judge erred in permitting the plaintiffs below to file he three additional counts, changing their original cause of action.</p> <p>2. That the judge erred in not charging the jury that the defendant having impeached the original consideration of the note, and shown it to „be for an illegal consideration, the plaintiffs could not recover.</p> <p>3. That the judge erred in charging the jury that the plaintiffs might recover on the count for “goods sold and delivered ’’</p> <p>4. That the judge erred in charging the jury that there was some loose evidence of a purchase of Union Canal tickets by the defendant; and for that amount, the plaintiffs might recover under the count for goods sold and delivered.</p> <p>5. That the judge erred in charging the jury that there was some loose evidence of a purchase of Union Ganal lottery tickets by the defendant of plaintiffs, and if they could apply this evidence to such a purchase, they might find a corresponding part of the debt claimed by the plaintiffs as due under the count for goods sold and delivered, when in fact there was no evidence of such a purchase.</p> <p>6. That the judge erred in not charging the jury that there was no evidence of any goods sold and delivered, and that he ought not to have left the jury to draw such an inference, as that of a sale, when there was no fact to warrant it.”</p>

<p>Error to the Court of Common Pleas for the city and cpunty of' Philadelphia.</p> <p>In the court below, John Dupuy brought an action of assumpsit against Reuben Manley, to recover one quarter’s rent of a house in the city of Philadelphia, alleged to be due in August, 1835. The cause came on for trial on the 17th of May, 1836, when the plaintiff gave in evidence a written agreement, of which the following is a copy, to wit: • '</p> <p>“ I promise to pay to John Dupuy or his legal representatives, fifty dollars per quarter of a year for the rent of his house No. 106, Cedar street, rent to commence on the 26th of February, 1830. Agreed to this 4th of March, 1830. Reuben Manley wishes to have an opening in the wall between No. 104 and 106, about the size of a common light glass; he promises to repair the same when required.”</p> <p>“ Reuben Manley,” (signed.)</p> <p>The plaintiff also produced William Stokes as a witness, who swore as follows.</p> <p>“ I was called upon by Dupuy a year or two ago to make a,distress for rent in 1834. I did make a distress for $50 for one quarter, on goods in that house, as the property of Reuben Manley. I seized the goods as his property. Mr. Manley occupied the house No. 104, not No. 106. Persons named Montegu occupied the house No. 106. They said they owed no rent; and sent for Manley. Manley came and told them “ You shan’t have trouble ; I’ll release you from responsibility.” The tenant and Manley were both by. Manley said ‘ Don’t trouble yourself; I’ll take the goods off from your shoulders.’ The tenant said ‘ our rent to Mr. Manley is not due.’ The first distress was in March, 1834; the next distress was in June, 1834, of Montegu’s goods. Mr. Montegu paid me the money. There were four, five or six distresses regularly after this. Montegu' never paid a quarter’s rent without distress. The bill was made out against Manley. He said ‘ you know where there is plenty of goods—go get the money there.’ Montegu has goné off.”</p> <p>The counsel for the defendant then requested the judge to charge the jury—</p> <p>1. That the removal of Manley from the premises, was under .the circumstances, sufficient proof of the termination of the tenancy.</p> <p>2. That the receipt of money (rent) by the plaintiff from Montegu, the occupant of the house, after Manley had so removed from the premises, and after the plaintiff had gone to the premises to dis-train for five or six successive quarters, was such a recognition of Montegu as his tenant as to discharge Manley from liability.</p> <p>3. That the defendant telling Montegu he would release him from responsibility, was no recognition on the part of the defendant of the continuance of his lease.”</p> <p>The judge however charged the jury:</p> <p>“ 1. That the removal of the defendant was not conclusive proof of the termination of his tenancy.</p> <p>2. That the receipt by the plaintiff of money (rent) from Montegu, the occupant of the premises, after going to the premises to distrain, might not be a recognition by the plaintiff of Montegu as his tenant, so as to discharge Manley from liability.</p> <p>3. That Manley telling Montegu he would release him from responsibility, was under the circumstances, a declaration from which they might infer the recognition by him of the continuance of the lease.”</p> <p>The jury found a verdict for the plaintiff, and the defendant removed the record to this court, and assigned the following errors, viz.</p> <p>1. “ The court erred in not charging the jury that the removal of Manley, the plaintiff in error, was under the circumstances, sufficient proof of the termination of the tenancy.</p> <p>2. The court erred in charging the jury that said removal was not conclusive proof of the termination of said tenancy, the counsel for plaintiff in error requesting him to charge that it was sufficient proof of the termination of the tenancy.</p> <p>3. The court erred in not charging the jury that the removal of the plaintiff in error from the premises, and the plaintiff below receiving rents from Montegu, the occupant of the hpuse, after dis-training for five or six successive' quarters upon Montegu’s goods, subsequently, was such' a recognition by him of Montegu as his tenant, as discharged Manley from liability.</p> <p>4. The court erred in charging the jury that the receipt by the plaintiff below of money (rent) from Montegu, after going to the premises to distrain, might not be a recognition by the plaintiff below of Montegu as his tenant.</p> <p>5. The court erred in not charging the jury that Manley telling Montegu he would release him from responsibility, was not under the circumstances, such a declaration from which they might infer the recognition by Manley of the continuance of his lease.</p> <p>• ' 6^ The verdict was not supported by the evidence and law of the case.”</p>

<p>Tuts was an action of covenant brought in the Supreme Court to March term 1836, by John Luciani against the American Fire Insurance Company, on a policy of insurance against fire.</p> <p>The policy was dated the 14th day of November, a. d. 1833, and was limited to one year; but the insurance had been continued by successive annual renewals endorsed on the policy, but without any seal affixed to the endorsements, and with variations as to the amount insured and the premium; the last renewal-having been on the 14th day of November 1835. The loss happened on the 10th of January 1836.</p> <p>The following declaration was filed.</p> <p>“ The American Fire Insurance Company of Philadelphia were summoned to answer John Luciani of a plea, that the said company keep with him 'the covenants made by the said company with the said L. according to the force, form and effect of a certain policy of insurance, between them made, &c. And thereupon the said J. L., by I. H. his attorney^ complains, for that whereas heretofore, to wit, on the fourteenth day of November, one thousand eight hundred and thirty-five, at Philadelphia in the state of Pennsylvania, by a certain instrument, or policy of insurance, sealed with the common seal of the company aforesaid, which the said L. now here into court brings, the date whereof is the same day and year aforesaid; reciting, that whereas, the said company had received' of the said L. the sum of 24 dollars 50'cents, premium for insuring on merchandise, six thdusand four hundred dollars, on furniture, five hundred dollars, and on fixtures, one hundred dollars; the capital stock, estate, and securities of the said company should be subject and liable to pay, make good, and satisfy unto the said J. L., his heirs, executors, administrators, or assigns, all such damage or loss which should; or might happen by fire to the property above-mentioned, from the date thereof to the full end and term of one year, not exceeding in the whole the sum of seven thousand dollars, according to the amounts as above-mentioned; unless the said company shall within thirty days after the proof of such damage to, or loss of the merchandise, furniture, and fixtures aforesaid insured, furnish the said insured with the like quantity of any, or all, of the said goods, and of the_ same quality as those so injured by fire, or should make good the damage or loss by paying therefor.</p> <p>And the said J. L. further says, that during the continuance of the said policy, the aforesaid goods specified in the said policy, happened to be, and were set on fire, and were much burnt, damnified and hurt by the said fire, and that the loss and damage which happened „to the said goods by the said fire, amounted to a large sum of money, to wit, to the sum of ten thousand dollars, whereof the said the American Fire Insurance Company then and there had notice and full and sufficient proof. And yet the said company or their officers, workmen or assistants, or any of them, did not after proof of -said loss and damage so happened to the said goods, give direction for putting the. same in as good a condition as the same were before, by the fire, or make good the loss or damage by paying therefor. Neither did the said .company within thirty days, or at any time since, after proof of the-" damage, or, loss aforesaid, to the aforesaid goods, furnish the said J. Li with the like quantity of all or any of the said goods, or of the"-Same quality of those so injured by the said fire, nor make good tlje^damage or loss aforesaid, by paying therefor, which they ought tqr have done, according to the form and effect of the said covenant jn that behalf made ; and that the said American Fire Insurance Company, though often requested, have not kept their said covenant with' the said J. L. whereby the said J. L. says, he is damnified to the; value of ten thousand dollars, and therefore he brings suit, &c.” j</p> <p>The defendants craved oyer of the instrument, and demurred generally.</p> <p>On a former day Mr. Hadehursl, .for the plaintiff, obtained a rule to show cause, why the declaration oh the record should not be withdrawn; and the. folio wing substituted:</p> <p>“ The American Fire Insurance .'Company, a body politic and corporate in law, were summoned to answer John Luciani of the county aforesaid, of a plea that they'.keep with him the covenants made between fhem, according to the force, form and effect of a certain deed made by the'said The American Fire Insurance Company to the said J. L., and so fórth, Whereupon the said J. L. by I. H., his attorney, complains, for that whereas by a certain deed commonly called a policy of insurance, made by the said The American Fire Insurance Company, and -by them sealed with their common seal, on the fourteenth day of November, in the year of our Lord one thousand eight hundred and. thirty-three, at Philadelphia, to wit, at the county aforesaid, which said deed sealed as aforesaid, the said plaintiff now into court brings, bearing date the day and year aforesaid; reciting that the said The American Fire Insurance Company had received of the said plaintiff seven dollars premium for making insurance, according to the tenor of their printed proposals and conditions thereunto annexed, upon merchandise generally, wholesale and retail, composing the stock of a confectioner, in a brick-building, No. 205 North Second-street, namely, on merchandise, sixteen hundred dollars, fixtures, one hundred dollars, and household goods, three hundred .dollars—they, the said The American Fire Insurance Company, did thén and there covenant, promise and agree, to and with the said plaintiff, that in consideration thereof the capital stock of five hundred thousand dollars, estate, and securities of The American Fire Insurance Company should be subject and liable to pay, make good and satisfy unto the said insured, his heirs, executors, administrators or assigns, all such damage or loss which should or might happen by fire to the property above-mentioned, from the date thereof to the full end and term of one year, not exceeding the sum of two thousand dollars, unless the said company should within thirty days after the proof of such damage or loss, furnish the said insured with a like quantity of any or all of the said goods, and of the same quality as those so injured by fire, or should make good the damage or loss by paying therefor, according to an estimate thereof to be made by arbitrators indifferently chosen, whose award in writing should be conclusive and binding on all parties. And it was thereby agreed by the said parties, that that policy should expire at twelve o’clock at noon, on the fourteenth day of November, in the year of our Lord one thousand eight hundred and thirty-four. And whereas, also, on the twenty-eighth day of May, in the year of our Lord one thousand eight hundred and thirty-four, the said The American Fire Insurance Company, as appears by endorsement on the said policy of insurance, received of the said plaintiff one dollar by way of premium, for an insurance of five hundred dollars; namely, on merchandise, three hundred dollars, and furniture, two hundred dollars, on the terms and conditions aforesaid, until the fourteenth of November, in the year of our Lord, one thousand eight hundred and thirty-four, at noon. And whereas the said The American Fire Insurance Company, on the fourteenth day of November, eighteen hundred find thirty-four, at the county aforesaid, in consideration of the sum of ten dollars and fifty cents, paid to them by the said plaintiff, as appears by endorsement on the said policy, did agree to continue the said insurance for one year, ending at noon on the fourteenth day of November, eighteen hundred and thirty-five, for the sum of three thousand dollars, namely, on merchandise, two thousand four hundred dollars, on furniture, five hundred dollars, and on fixtures, one hundred dollars. And whereas, also, on the seventeenth day of March, eighteen hundred and thirty-five, the said The American Fire Insurance Company received of the said plaintiff the sum of five dollars, by way of- premium for an additional insurance on the said merchandise, furniture and fixtures, on the terms and conditions aforesaid, until the fourteenth day of November, eighteen hundred and thirty-five at noon. And whereas the said The American Fire Insurance Company, on the fourteenth day of November, eighteen hundred and thirty-five, at the county aforesaid, in consideration of the sum of twenty-four dollars and fifty cents, paid to them by the said plaintiff, by endorsement on the said policy, did agree to continue the said insurance for one year, ending at noon on the fourteenth day of November, eighteen hundred and thirty-six, for the sum of seven thousand dollars, that is to say: on merchandise, six thousand four hundred dollars, on furniture, five hundred dollars, and on fixtures, one hundred dollars. And the said plaintiff in fact, further says, that at the time of making the said policy of insurance, he, the said plaintiff, was interested in the said insured merchandise, furniture and fixtures, in the said policy.*; of insurance mentioned, and thereby intended to be insured tó¿a large amount, to wit, to the amount of seven thousand dollars, t6,wit, at Philadelphia aforesaid, and remained, and continued so infested therein, and owner thereof, from the making of the said policj||^£dnsin$ice till this time. And the said plaintiff doth aver, that affSÉwardsV’td wit, on the tenth day of January, eighteen hundred and jhir-t-y-six, at the county aforesaid, while the said policy of insurance was in "full force, the said merchandise, furniture and fixtures, now'óf .great value, to wit, of the value of seven thousand dollars and over, were then and there injured, and wholly destroyed by firé, whereof notice and due proof, after-wards, to wit, on the twelfthjday of January, in the year last mentioned, was given by the said plaintiff, to the said The American Fire Insurance Company ; and the said The American Fire Insurance Company did then and there' become liable to pay the said plaintiff the said sum of money, unless the said company should within thirty days after the proof of such damage or loss, furnish the said insured with a like quantity of any- or all of the said goods, and of the same quality as those so injured by fire, or should make good the damages or loss by paying therefor, according to an estimate then to be made by arbitrators, indifferently chosen, whose award in writing should be conclusive, and binding on all parties.</p> <p>And the said plaintiff did then and there require them to pay him the said sum of seven thousand dollars so by them assured in manner aforesaid, unless they should make good the said damages as aforesaid, according to the form and effect of the said deed and of the covenant in that behalf so made as aforesaid. Yet the said J. L. ' in fact saith, that the said The American Fire Insurance Company have not paid to him the said sum of seven thousand dollars or any any part thereof, nor made good-the said damage in manner aforesaid, contrary to the form and effect of the said deed, and of their covenant so made by them in that behalf as aforesaid. And so the said John saith, that the said The American Fire Insurance Company, although often thereto requested,-have.not kept with and performed to him their aforesaid covenant, but have broken the same, and to perform the same have altogether refused, and still do refuse, to the damage of the said John of ten thousand dollars, lawful money of the United States, and therefore he brings suit, &c.”</p> <p>Mr. Hazlehurst now contended that the amendments ought to be admitted, as they set forth no new cause of action; and according to the cases, so long as the plaintiff adheres to the original ground of his claim, he has a right to amend. Rodrigue v. Curcier, (15 Serg. <5* Rawle, 83.) Coxe v. Tilghman, (1 Wharton’s Rep. 287.) Even after judgment on demurrer, the Court will grant leave to amend. Burke v. Huber, (2 Watts, 311.) The question then is, whether the renewal of an insurance is not to be considered as a re-execution of the instrument. The instrument is the same, and so are the parties. It is not a substituted agreement, but a continued one. In Vickary v. Moore, (2 Watts, 451,) there was an agreement for an alteration, which resolved the whole into parol. In the present case, there was no modification. In Gower v. Sterner, at this term, {ante, p. 75,) it was held that the plaintiff might declare in covenant upon a specialty amended by parol. In Moliere v. The Penn. Fire Ins. Co. (5 Rawle, 247,) covenant was brought under circumstances like the present, and the exception was not taken.</p>

This was a certiorari to the Court of Quarter Sessions for the county of Philadelphia, to remove the proceedings in the matter of the opening of a street called Adelphi street; between Fifth and Sixth streets, and Waln-ut and Prune streets, in the city of Philadelphia.

<p>Writs of error were issued in the above cases to the District Court for the City and County of Philadelphia, under the following circumstances.</p> <p>By an act of assembly passed, on the 28th of March 1835, entitled “ An act to re-establish the District Court for the City and County of Philadelphia,” it was declared that “ in all actions instituted in the said Court, on bills, notes, bonds or other instruments of writing for the payment of money and for the recovery of book debts; and in all actions of scire facias on judgments, and on liens of mechanics and material men, under the act of the 17th of March 1806 and the various supplements thereto, it shall be lawful for the plaintiff, on or at any time after the third Saturday succeeding the several return days hereinbefore designated, on motion, to enter a judgment by default notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and character of the same: Provided, that in all such cases no judgment shall be entered by virtue of this section, unless the said plaintiff shall within two weeks after the return of the original process, file in the office of the prothonotary of the said court, a copy of the instrument of writing, book-entries, record or claim, on which the action has been brought.” (§ 2.)</p> <p>By the 3d section of an act passed on the 11th of March 1836,. supplementary to the act of 1835, it was declared that each of the judges of the said court should have power to render judgments by default under the preceding section; and by the 14th section of the same act, it was enacted that the provisions of the said section should bp extended to “ all actions brought on contracts for the loan or advance of money, whether the same be reduced to writing op not: Provided, that in all such cases no judgment shall be entered by virtue of this section, unless the plaintiff shall within two weeks after the return of the original process, file in the office of the prothonotary of the said court, an affidavit setting forth the terms of the said loan or advance, with the date thereof.”</p> <p>In the first of the above-named cases, it appeared on the return of the record, that Edmund Dougherty brought an action on the case against John R. Sleeper to June term 1836 of the District Court, upon a promissory note drawn by the defendant in favour of Elijah Sparks or order, dated the 3d day of February 1836, at 90 days for $178 75.</p> <p>On the 14th of May 1836 the plaintiff filed a copy of the promissory note, upon which the suit was brought. Upon the note was endorsed, under the date of February 8th 1836, an assignment by Sparks, of all his right and title in the note to Dougherty, the plaintiff.</p> <p>On the 8th of June 1836, the defendant filed two affidavits of defence. The first was made by one Norton, who swore that Sparks, the payee of the note, was indebted to him in a sum of 127 dollars and 71 cents, for certain hogs sold and delivered to him. That Sparks had absconded and left the country; and that he, the defendant, had issued a foreign attachment against him, to March term 1836 of the District Court; and attached the amount of the debt due to Sparks by Sleeper, and summoned Sleeper as garnishee. That previous to issuing the attachment, he had called on Dougherty, the plaintiff, who told him that he did not know of any notes given by any one in Sparks’s favour, or of any debt due to Sparks. That Dougherty is father-in-law of Sparks; and that he, the deponant, expected to prove, on the trial of the cause, that no consideration ever passed between them for the note; and that Dougherty did not become the holder of the note until after the issuing of the attachment, if he did before the note came to maturity. The deponent also swore to his belief, that there was a good defence to the claim of Dougherty on the note to the amount of his claim, under the foreign attachment; which, including .the debt, interest and costs, would cover, or nearly so, the amount of the note.</p> <p>The other affidavit was made by the defendant. It set forth that since he gave the note, he had been served with a writ of' foreign attachment at the suit of John D. Norton against Elijah Sparks. That he is informed that Sparks has absconded; and that he was advised by counsel that he would not'be safe in paying the amount of the note to Dougherty. That he does not know when Dougherty became the holder, but was informed that he stated at the time of issuing the attachment, that he was not the holder of it.</p> <p>On the 25th of June 1836, the District Court, on motion of the plaintiff’s attorney, granted a rule to show cause why judgment should not be entered, notwithstanding the affidavit of defence.</p> <p>On the 2d of July, the rule was made absolute : judgment was entered for the plaintiff; and on the 5th':of July, the damages were assessed by the prothonotary at $181 50.</p> <p>In this Court the error assigned; was the entering of judgment notwithstanding the affidavit of defence:</p>

<p>This was a writ of error to the District Court for the city and county of Philadelphia, in which court Josiafi Gaskill jr. brought an action on the case against William A. Dick, to recover damages, for the non-performance by the defendant of a certain agreement or guarantee.</p> <p>The writing upon which the action was brought, was made on the 1st day of May, 1834, and the defendant therein stipulated as follows :</p> <p>“ The said William A. Dick, for his part guarantees, that Samuel Loyd, for whom he is guardian, will stay with, and work for the said Josiah Gaskill, Jr. until he become twenty-one years of age, if he shall live to that age, which will be oh the 19th of May, 1838: and the aforesaid Josiah Gaskill, Jr. for hiá.part, is to teach the aforesaid Samuel Loyd, the art and trade of a house carpenter; and provide for his board and washing suitable for an apprentice; and pay to him or his. guardian .the sum of $20 per year, from the time he commenced, which was on the 30th day of December, 1833. For the performance of this article, each party binds himself under a penalty of one hundred dollars, by subscribing his name hereunto.”</p> <p>The following declaration was filed.</p> <p>“ Philadelphia County:</p> <p>William A. Dick, late of said county, yeoman, was attached to ‘answer Josiah Gaskill, Jr., of a plea of trespass upon the case ,* and thereupon the said plaintiff complains, &c., for that, whereas heretofore, to wit, on the 8th day of May, 1834, at the said county, by a certain agreement, then and there made between the said Josiah and William, in consideration that the said Josiah, at the request of the said William, would teach Samuel Loyd, his ward, the art and trade of a house carpenter, and provide for him board and washing, suitable for an' apprentice, and pay to him or his guardian, the sum of $20 per year, from the 30th day of December, 1833, he, the said William A. Dick, guardian of the said Samuel, undertook, and then and there faithfully promised the said Josiah, that the Said Samuel should stay with, and loorh for the said Josiah, until he, the said Samuel should become of age, which will be on the 19th of May, 1838; and for the performance of his said agreement, bound himself in the penalty of $100; and although the said Josiah has in every respect complied With his part of the agreement aforesaid, and was ready and willing to perform his said agreement, yet the said Samuel Loyd hath not staid with and worked for the said Josiah Gaskill, Jr., as aforesaid, but had before the commencement of this suit, wholly left the employment of the said Josiah, and refused to stay with and Work for the said Josiah, whereby he hath sustained great loss and damage, to wit, $300, at the county aforesaid, and therefore he brings suit,” &c.</p> <p>The .case was submitted to referees under the act of 1705, who reported in favour of the plaintiff, and assessed the damages at one hundred dollars.</p> <p>The District Court rendered judgment on the report of the referees; upon which the plaintiff took a writ of error; and assigned the following error:</p> <p>“ Because the District Court for the city and county of Philadelphia, had not jurisdiction of the action, and accordingly erred in rendering judgment on the report of referees.”</p>

<p>IN' ERROR,</p> <p>1. The widow of an intestate, tenant in common, may maintain a writ of dower, as at common law, for her third of her husband’s proportion of the land.</p> <p>2. The acts of assembly which direct the method in which partition may be made in the Orphans’ Court of the real estate of an intestate, and the widow’s share set off to her, are confined to the casein which the intestate was sole seized.</p> <p>3. The wido.w qf an intestate, tenant in common, cannot maintain an action of partition in the common law courts against the co-tenant of the intestate..</p>

<p>Error to the Court of Common Pleas for the City and County of Philadelphia.</p> <p>Robert H. Wright issued a scire facias in the Court below, against Eliza Barnes, upon a claim filed under the mechanics’ lien-law. The claim was for bricklaying work done at two three-story brick buildings, adjoining each other in the city of Philadelphia. Annexed to the claim was the following bill and apportionment:</p> <p>“ Mrs. Eliza Barnes,</p> <p>To Robert H. Wright, Dr.</p> <p>1835, April 29th.—For bricklaying to two houses in a court leading from Bird’s court to Currant alley, in the city of Philadelphia, betweed the 29th of April and the 23d of May, 1835, $56 12|</p> <p>By cash, - - - - - 13 00</p> <p>Amount due, - $43 12J</p> <p>The said R. H. Wright hereby apportions, agreeably to the provisions of the act of assembly, passed on the 30th of March, 1831, the amount of his. claim, among and between the said houses as follows: Against the first described house, he charges for half of the annexed bill, to wit, $21 56; and against the second described house, he charges for one-half of the annexed bill, to wit, $21 56 ; and he herewith files the said apportionment.”</p> <p>On the trial, it was proved that the defendant made a written contract with one William Page, a carpenter, to erect the two buildings at a stipulated price; he finding all the materials, and doing all the work of every kind: that Page, the contractor or builder, employed the plaintiff to do the bricklaying work in question, at two dollars per day: that the plaintiff was a master workman, having men employed under him. Before making his contract with Page, he inquired of Mrs. Barnes, -what kind of pay Page was, who stated that she did not know'—that all she had to do, was with Page. Page superintended all the work, and gave instructions to plaintiff, and paid him $18 on account, during the progress of the building.</p> <p>Page after the plaintiff had finished his work, left town, and never returned. After Page left town, the plaintiff made out a bill against him for the work done, and presented it to Mr. Dawson, the agent of the defendant, for payment. This bill was not against the buildings, but against Page personally, for days’ work; and at the time of presenting it, the plaintiff inquired of Mr. Dawson, if he had any chance for a lien. Page also employed carpenters by the day, in the same way.' The building was not finished by Page according to contract, but the defendant was obliged to employ another person to finish it. The defendant had overpaid Page, the amount contracted for.</p> <p>During the trial, the plaintiff’s attorney having proved that William M. Jones was in New York on a temporary visit, and that his family l-esided here, offered'in evidence his notes of his testimony given before the arbitrators in this case; and at the same time, ottered to prove that they were substantially correct. The correctness of the notes was admitted; but the evidence was objected to. The Court, however, admitted it, -and the defendant’s counsel excepted.</p> <p>Jones testified that he served a notice on the defendant, on the 20th of November, 1835, of the time and measurement of the plaintiff’s work—that he gave two notices; one a written, the other a verbal one.</p> <p>The defendant’s counsel then requested the Court to charge the jury as follows: '</p> <p>1. “ If the plaintiff agreed to do’ the work under a personal agreement with Page, he is not entitled to recover here, but must look to Page.</p> <p>2. If the plaintiff performed his work under a special agreement with Page, for a fixed sum, and agreed to accept of a particular mode of payment, he has no lien.</p> <p>3. If the plaintiff was employed by Page by the day, he is a day workman, and has no lien.</p> <p>4. That the pa3^ments made by Page to Wright, during the progress of the buildings, establish that the plaintiff looked to him, and not to the buildings for his wages.</p> <p>5. If the plaintiff did the work upon the credit of Page, he is not entitled to recover here.</p> <p>6. If the plaintiff did the work under an agreement with Page, the claim should have been filed against him, ‘ and not against the defendant.</p> <p>7. That the evidence does not support the claim filed, and the plaintiff therefore, is not entitled to recover.</p> <p>8. That the plaintiff cannot recover here, because the amount of his bill is apportioned separately between the buildings ; and the scire facias has been issued jointly against both.</p> <p>9. That the act of assembly does pot authorise a mechanic to apportion the amount of his bill, against two or more adjoining buildings, but only a material-man.”</p> <p>The Court, (Randall, J.) charged'the jury as follows:</p> <p>“1. If the plaintiff agreed to do the work, and look to the personal responsibility of Page for the payment, he had no right to file a claim against the buildings, and consequently cannot recover in this action; but the burthen of proving such an agreement is on the defendant.</p> <p>2. The second point is similar to the first, and the law is as stated in the proposition.</p> <p>3. It is only the principal of each branch or trade, that has a lien on the"buildings for his labour—his journeymen labourers have none; but it makes no difference what the agreement may be, whether by the day or not; an agreement to receive a stipulated sum per day for his services, will not in itself, make the plaintiff a journeyman, so as to deprive him of his lien.</p> <p>4. The payments made by Page to the plaintiff, do not conclusively establish that the plaintiff looked to Page for payment, and not to the buildings. ■</p> <p>5. The law is so—if the plaintiff did the work upon the personal credit of Page, he cannot recover in this action.</p> <p>6. The law is not so. If the plaintiff made an express agreement with Page, who was not the owner of the ground, still in filing his claim, he had a right to state it as against the owner, naming him, and making him defendant in the scire facias, as it is a proceeding in rem, and the judgment only binds the property described in the claim.</p> <p>7. This is a matter of fact for the jury. If the plaintiff agreed to do the work by the day, he cannot have it measured. He cannot change the contract from a day contract, and charge the defendant with one by measurement; and he must credit the defendant with what he received on account from Page.</p> <p>8 and 9. These are both matters of record, in which, if there is error, the defendant can have the benefit of it hereafter. A mechanic has a right under the act of assembly, to make an apportionment as the plaintiff has done, and the scire facias has issued properly against both buildings.”</p> <p>The jury having found for the plaintiff, the defendant took a writ of error; and assigned the following errors:</p> <p>1. “ The Court below erred, in admitting the testimony of William M. Jones.</p> <p>2. The Court below erred, in charging' that an agreement to receive a stipulated sum per day for. his labour, would not make the plaintiff- a journeyman, and deprive him of his lien.</p> <p>3. The Court erred, in charging that if the plaintiff did the work under an agreement with Page, the builder, it was not necessary to file the claim against him, but it might be filed against the owner alone. -</p> <p>4. That the claim does not support the scire facias; as the claim is apportioned separately between the buildings, and the scirefacias has been issued jointly against both.</p> <p>5. That the act of assembly does not authorize a mechanic to apportion the amount of his bill, against two or more adjoining buildings, but only a material-man.”</p>

<p>IN ERROR.</p> <p>1. By an agreement in writing between the plaintiff and defendant, it was witnessed that the plaintiff agreed to give the defendant three horses, and gear belonging to them, for the sum of 8 ¿00; and in consideration thereof, the defendant agreed to work out the amount, by carting certain articles at seventy cents per thousand, until the horses, &c. Were paid for: and it was further agreed that the plaintiff was to pay the defendant, one half ofthe amount which he (the defendant,) earned for carting during the season, until the horses, &c. were paid for. The agreement then proceeded : “ and it is fully understood that the said horses, gear, &c. is the property of (.the plaintiff,) until worked out or paid; this agreement to thecontrarynolwithstanding. The said (defendant) further agrees to attend to the carting, and furnishing carts, as many as are necessary, for deliveiing brick to buildings, and wood to the kiln, at the price stipulated above, to the brick-yard; and at the end .of the season, which is the first of January, 1836, which ever party is in debt on settlement, the same is to be paid in cash; and in case the said (defendant) refuses to cart at any time when called on, the said horses, &c. are to be returned, and this agreemdnt is to be null and void, and the said (defendant) forfeits the balance of cash remaining with (the plaintiff,) as collateral security.” In replevin fjr the horses and gear, the court below charged the jury that the plaintiff derived title to the horses under the above agreement, and that if they found that there had been a demand by the plain-" tiff upon the defendant to cart, and a refusal by him, then the verdict should be for the plaintiff without any regard to the state of the accounts between the parties; that many view of the ease, it would be wholly unnecessary for them to examine into these accounts, and that it was immaterial in this action what way the balance was: Held, that this direction was erroneous.</p> <p>2. Evidence of a demand made by the plaintiff upon a person in the employment of the defendants, as a carter, he being at the house of the defendant at the time, held, not to be admissible as evidence of a demand upon the defendant; there being no proof that the demand was communicated to the defendant.</p>

This case came before the court, on a writ of error to the District Court for the City 'and County >Jaf 'Philadelphia, to remove the record of á judgment entered for want of the affidavit of defence required by the act of the 28th March, 1835.

Or- a writ of error to the District Court for the City and- County of Philadelphia, the case was thus:— To the June term, 1828, of that Court, Andrew B. Spence issued a summons in partition to Helen Margaret Dewar, and James Spence, to show wherefore partition should not be made between them, of “ a certain three story brick messuage or .tenement, and lot or piece of ground situate on the south side of Francis street, in the county of Philadelphia, containing in breadth on…

This was a writ of érror to the District Court for the City and County of Philadelphia, to remove the record of an action brought by Eliza Croskey, and Joseph A. Clay, copartners, trading as lumber merchants, under the firm of Ashmead & Croskey, against Henry L. Coryell; and Náthaniel Jackson.

<p>IN ERROR.</p> <p>An order drawn by a contractor on the Post Master General, in the following words:</p> <p>“ Sir,—On the first day of January, 1836, pay to my order $5000, for value received, and charge the same to my account, for transporting the U. S. Mail, and oblige</p> <p>Your friend, J. R.”</p> <p>Was held not to be a negotiable bill of exchange, so as to entitle the holder to sue in Ms own name.</p>

<p>IN ERROR.</p> <p>1. The 5th section of the act of the 24th of March, 1818, requiring voluntary assignments for the benefit of creditors, to be recorded within thirty days, was not confined to the case of an assignment for the benefit of all the creditors of the assignor.</p> <p>2. An assignment made in 1833, of property to a particular creditor in trust, to sell the same; and after paying himself, and three other creditors of the assignor, to return the surplus to the assignor, which was not recorded within the time required by the act of 1818, was held to be void, as against the creditors of the assignor.</p> <p>3. The trustees of an insolvent debtor possess all the right of his creditors, to set aside a fraudulent or irregular assignment; and may therefore recover property which is the subject of a voluntary assignment previously made, but not recorded according to law.</p> <p>4. The case of Thomson v. Dougherty, (12 Serg. Ramie, 448,) overruled.</p>

<p>APPEAL.</p> <p>1. A declaration made by a married woman in the Orphans’ Court, under the 48th section of the act of the 29tb of March, 1832, that she is willing that her share of the proceeds of real estate, sold under proceedings in partition, sllall be paid to her husband without security, &e., is not binding on her, if made before the amount of such share has been duly ascertained and fixed.</p> <p>2. If such declaration be duly made after the sum has been so ascertained, it seems that it cannot be retracted.</p>

<p>IN ERROR.</p> <p>1. Where the holder of a promissory note on the day that it became due, accepted from the maker a check drawn upon a bank, by a firm consisting of the maker and a third person, dated six days afterwards, which check was to be in full satisfaction of the note, in case it was paid at maturity ; it was held that this amounted to a suspension of the remedy against the maker, and discharged the endorser.</p> <p>2. A special plea which sets forth the facts of an agreement, may be good on demurrer ; although the legal effect or result thereof is not averred.</p> <p>3. Thus in assumpsit on a promissory note against the endorser, the defendant pleaded specially, that the plaintiff on the day the note became due, agreed to accept from the maker a check upon a bank drawn by a firm, consisting of the maker and a third person, dated six days afterwards, which check was to be in full satisfaction of the note, if paid at maturity, and that the check was accordingly accepted, &c.; it was held that the plea was good, although it did not aver that it was an agreement to give time to the maker, &e.</p>

<p>Writ of error to the District Court for the City ah'd County oí Philadelphia. Upon the return of the record, it appeared that Henry Simmons brought an action on the case to December Term, 1835, of that Court, against George G. West; and within the period required by law filed a copy of the note upon which the suit was brought, viz. a note for $116 75, dated January 20th, 1832, drawn by the defendant in favour of William Fulmer, and by him endorsed to the plaintiff. There was no copy of any protest filed with the copy of the note.</p> <p>On the 19th day of February, 1836, the defendant filed the followinfi affidavit of defence.</p> <p>“ Henry Simmons v. George G. West.</p> <p>) V ;</p> <p>Dis’t Court, Dec.’35. 707.</p> <p>George G. West, the above defendant, being duly affirmed, saith, he has a just and full defence to the above action, and as defence thereto the deponent says, that true it is that he signed the note on which this action is instituted, but that, on the 12th day of January, preceding the date of said note, (1832) he had been discharged under the insolvent laws of this commonwealth, and that at the time of said discharge, William Fulmer, the payee of said note, was- a creditor of deponent, and that said note was, with others, given to said William. Fulmer, previous to said discharge, as security for the payment to him of the debt owing to him, in consideration that he, the said William Fulmer, would not oppose the discharge of deponent as aforesaid ; and therefore the deponent saith, that the said note is void, as he believes ; together with other facts in possession of the defendant.”</p> <p>On the 15th of March, 1836, the plaintiff’s counsel obtained a rule on the defendant, to show cause why judgment should not be entered for want of a sufficient* affidavit of defence.</p> <p>On the 19th-of March, 1836, during the pendency of the rule to enter judgment, the defendant deposited in the prothonotary’s office, in the usual way, a further affidavit of defence, as follows:</p> <p>“ Simmons v. West.</p> <p>) > )</p> <p>Dis. Court, Dec. ’35. 707.</p> <p>George G. West, the above defendant, being sworn according to law, saith, as a further defence to the above suit, that previously, as he is confident, to said note coming into possession of above plaintiff, deponent informed said plaintiff that said note was null and void, the same having been obtained from deponent by the payee, fraudulently; and the consideration for the said note being, that the payee, to whom deponent owed a debt at the time the said note was given, would not oppose his discharge under the insolvent laws of this commonwealth; and that on the payee’s promising to withdraw his opposition as aforesaid, the said note was given, and deponent was discharged ; and further deponent says, that the plaintiff has not, as he is confident, given any consideration for said note, and received it with full notice of the facts aforesaid.’’</p> <p>The District Court gave judgment for the plaintiff after argument;* and the defendant took a writ of error, and assigned the following errors.</p> <p>1. “That the court below erred: in-granting to the defendant in error, who was plaintiff in the suit below, a rule on defendant below to show cause why judgment for want of a sufficient affidavit of defence should not be entered.</p> <p>2. That the affidavit of defence filed by the defendant below on March 19th, 1836, is a sufficient affidavit to prevent the entry, of judgment under the act of assembly of March 28, 1835.</p> <p>3. That the affidavit of defence, endorsed as filed March 19,1836, was filed properly and in due time, within the meaning of the act.</p> <p>4. That the court below erred in ordering that judgment should be entered for plaintiff' below.</p> <p>5. That the entry of such judgment is altogether erroneous and illegal.”</p>

<p>This was a writ of error to the District Court for the City and County of Philadelphia.</p> <p>In the Court below a scire facias had been issued in the name of the Commonwealth to the use of Richard F. Allen & Co. upon the recognizance of George Rees, Esq. late sheriff of the City and County of Philadelphia. s</p> <p>The suit was brought to recover damages, on the ground that the defendant, Rees, had not executed a certain writ of fieri facias, which had been placed in his hands by the said Richard F. Allen. On the trial before Judge Stroud on the 21st of April 1836, the following evidence was gone into :</p> <p>It was admitted that George Rees was duly commissioned sheriff of the city and county, at the time the fieri facias of the plaintiffs was placed in his hands.</p> <p>The plaintiffs next gave in evidence a certified copy of the recognizance, entered into by George Rees and his sureties to the Commonwealth, when he entered upon the duties of sheriff as aforesaid.</p> <p>The plaintiffs next gave in evidence the appearance docket of the District Court of the term of December 1831, No. 588, as follows:</p> <p>f Ann M‘Clarnon v. James M'Clarnon & Charles C. Many.</p> <p>h I [ J</p> <p>District Court, Dec’r. 1831. D. S. B. No. 198.</p> <p>And now, Feb. 15, 1832, the defendants by I. Norris, Esq. their attorney, confess judgment to the plaintiff for $6000.’</p> <p>* Ann M'Clarnon v. - James M‘Clarnon.</p> <p>] > J</p> <p>' District Court, June Term, 1832. No. 755.</p> <p>Amicable action entered by agreement, filed 19 June 1832, and that judgment be' entered in favour of the plaintiff for $1170 80.’</p> <p>* Hannah Vickery v. James M‘Clarnon & Charles C. Many.</p> <p>"] I C J</p> <p>District Court, June 1832. No. .756.</p> <p>Amicable action case, entered by agreement, filed June 20, 1832, and that judgment be entered for the plaintiff for $700.’</p> <p>‘ William Lehman v. James M'Clamon.</p> <p>j > )</p> <p>District Court, June 1832. No. 757.</p> <p>Amicable action entered bv agreement, filed 20 June 1832, and judgment in favour of the plaintiff for $400.’</p> <p>. ‘ Rachel Smith v. James M‘Clarnon & Charles C. Many.</p> <p>District Court, June Term, 1832. No. 758.</p> <p>Amicable action case, entered by agreement, filed 20 June 1832, and that judgment be entered in favour of the plaintiff for $344 88.’</p> <p>‘ Richard F. Allen & Co. v. James M'Clarnon & Charles C. Many.</p> <p>District Court, Dec’r. Term 1831. No. 588.</p> <p>Amicable action case, entered by agreement, filed March 3,1832, and judgment to be entered in favour of the plaintiffs for $1139 40, payable by instalments. Execution to issue upon non-payment of any instalment.’ ”</p> <p>The plaintiffs next gave in evidence the execution docket of the District Court, as follows, viz.</p> <p>‘ Ann M‘Clarnon v. James M‘Clarnon.</p> <p>1 > )</p> <p>Fi. fa. to Septr. Term, 1832. No. 57.</p> <p>Real debt, $1170 -81 Interest from 18 June, Costs, '</p> <p>Return— Placed in the hands of the sheriff, See “ 58.” 10 minutes before 12 a. m. 19 June, 1832.’</p> <p>‘ Same .v. Same & Chas. C. Many.</p> <p>)</p> <p>,Fi. Fa. to Septr. Term, 1832. No. 58.</p> <p>Real debt, $3000</p> <p>Interest from 15 February, Costs,</p> <p>Sheriff’s Return:</p> <p>‘June 19, 1832, 10 minutes of 12 a. m., levied on stock of dry-goods of defendant, and sold part of the same to sundry persons for $106, which money I have made, and the residue of the said goods sold to Ann M‘Clarnon, the plaintiff, for $2961 53, and the terms of sale not complied with by her, wherefore the same remains unsold, and the same left in the hands of the plaintiff at her risk.</p> <p>So answers George Rees, Sheriff.’</p> <p>‘ Hannah Vickery v. M'Clarnon & Many.</p> <p>) > )</p> <p>Fi. Fa. to Septr. Term, 1832. No. 67.</p> <p>Real debt; $700 Interest from 15 April, Costs,</p> <p>Placed in Sheriff’s hands 15 minutes past 10 a. sr. 20 June, 1832.’ Return—(See “ No. 58.”)</p> <p>‘ Lehman v. James M'Clarnon.</p> <p>) > )</p> <p>Fi. Fa. to Septr. Term, 1832. No. 66.</p> <p>Real debt, $400 Interest from 29 April,</p> <p>Placed in Sheriff’s hands same time as the foregoing.’</p> <p>Return—(See “No. 58.”)</p> <p>‘ Rachel Smyth v. M'Clarnon & Many.</p> <p>1 > )</p> <p>Fi. Fa. to Septr. Term, 1832. No. 67.</p> <p>Real debt, $344 88 Interest from 16 May, Costs,</p> <p>Placed in Sheriff’s hands same time as the foregoing.’</p> <p>Return—(See “ No. 58.”)</p> <p>‘ Allen & Co. v. M'Clarnon & Many.</p> <p>7 > )</p> <p>Fi. Fa. to Septr. Term, 1832. No. 87.</p> <p>Real debt, $1139 40 Interest from 22 February, Costs,</p> <p>Placed in Sheriff’s hands 5 minutes past 5 p. m. 23 June, 1832.’</p> <p>‘ Return—</p> <p>Levied on stock of goods—subject to prior levy. So answers (See “ No. 58.”) George Rees, Sheriff.’</p> <p>The plaintiff next read in evidence the following notice :</p> <p>‘Sir: ' Philadelphia, 14 July, 1832.</p> <p>You will please to take notice that I shall apply to the court for a rule upon the sheriff to bring the money made upon the executions in the above cases, into Court.</p> <p>George Rees, Esq. S. Brashears,</p> <p>Sheriff. for Allen and others.’</p> <p>Also the</p> <p>Minute Book, D. C. page 392:</p> <p>‘ M‘Clarnon v. M‘Clarnon Fi. Fa.. Sept. 1832. No. 57</p> <p>Same v. Same 58</p> <p>Vickery v. Same et-al. 61</p> <p>Lehman v. M'Clarnon 66</p> <p>Smith v. Same 67</p> <p>Allen v. Same w 87</p> <p>On motion of S. Brashears, the Court grant a rule upon George Rees, Esq. late sheriff, to bring the money into Court in the above cases. Returnable 27th October.</p> <p>April 27, 1833. Affidavit of S'. Brashears as to service of notice of rule on the sheriff in the above cases filed, and rule absolute.’— (Minute Book 1833, page 18.)</p> <p>Also the</p> <p>Minute Book 1833, pagfe 18:</p> <p>‘ Allen, et al. v. M'Clarnon, et al.</p> <p>) > )</p> <p>District Court, March, 1832. ■ No. 282.</p> <p>On motion of S. Brashears the Court grant a rule upon George Rees, Esq. late sheriff, to show cause why an attachment should not be awarded against him for the amount of the debt and costs in the above cases. Returnable 4th May.’</p> <p>Also the following notice:</p> <p>‘ Sir:—You will please to take notice that the rule heretofore served upon you in the foregoing cases to bring the money into Court, will be called up on Saturday next, 16 March, 1833, at 10 a. m. S. Brashears,</p> <p>George Rees, Esq. fo,r Allen & Co.’ Sheriff.</p> <p>March 9, 1833.,</p> <p>Also, the following notice:</p> <p>‘Allen v. M'Clarnon.</p> <p>On motion of S. Brashears, the Court grant a rule upon George Rees, Esq. late sheriff, to show cause why an attachment should not be awarded against him for the amount of the debt, interest and costs in the above case.' Returnable 4th May 1833, at 10. a. m.’</p> <p>27th April, 1833.</p> <p>Also, the following:</p> <p>‘ Commonwealth v. George Rees.</p> <p>) > )</p> <p>District Court, J. 1833.</p> <p>The defendant, George Rees, Esq. is desired tb produce on the trial of the above case, the book containing the sales of the goods levied upon in the above cases.</p> <p>January 22, 1834.’</p> <p>The evidence being closed on the part of the plaintiffs; and no evidence being offered on the part of the defendants, the learned Judge charged the jury,—</p> <p>“ That they might consider the return of the sheriff to the execution upon the judgment in favour of Ann M'Clarnon, against M‘Clarnon & Many,’ that Ann M'Clarnon had purchased all the goods levied upon, (except the part stated in the return to have been bought and paid for by other persons,) as evidence of the value of the remainder of the goods returned as not sold; that this was not conclusive evidence, nor would he instruct them to regard it of as high a character as prima facie evidence; but it was the return of a sworn officer, and they might receive it for as much as they thought it worth; that in England, the sheriff generally caused the goods levied upon to be appraised, and returned this appraisement as their value; that here he had stated that they had been.sold for a certain sum. If they, considered" this to be a fair criterion of their value, then the plaintiffs had received no damage; as executions prior to them were in the sheriff’s hands, and were entitled to be paid in preference, and were of an amount much larger than the amount of the sale of the goods, according to the return.”</p> <p>The jury found for the defendants; and the plaintiffs removed the record to this court, and assigned.the following errors.</p> <p>“ 1. The, court erred in charging the jury that they might consider the return of the sheriff to the execution upon the judgment in favour of Ann M'Clarnon against M‘Clarnon & Many, namely: ‘ That Ann M‘Clarnon had purchased all the goods'levied on except the part stated in the return to have been bought and paid for by other persons,’ as evidence of the value of the remainder of the goods returned as not sold.</p> <p>2. The court erred in charging the jury that the said return was the return of a sworn officer, and that they might receive it for as much as they thought it worth; whereas in truth the return was not under oath; and if it had been under oath, it would not have been competent testimony for the sheriff in an action against him.</p> <p>3. Because the court erred in charging the jury that if they considered the return a fair criterion of the value of the goods, then the plaintiffs had received no damage; as executions prior to theirs were in the sheriff’s hands, and were entitled to be paid in preference, and were of an amount much larger than the amount of the sale of the goods, according to the return; whereas the court should have charged the jury, that the said return of the sheriff was either a legal criterion or not, instead of leaving it to them to form indefinite views in respect to testimony, upon which the law was to determine.</p> <p>4. The court erred in submitting documentary evidence to the interpretation or construction of a jury, instead of giving to it a judicial interpretation or construction, whereby the court materially impaired the rights of the plaintiffs.”</p>

Writ of error to the Court of Common Pleas for the City and County of Philadelphia. By an act of the legislature of Pennsylvania, passed on the 17th day of February, 1831, a company was incorporated for the purpose of making a rail-road from the city of Philadelphia to the borough of Norristown.

Writ of error to the Court of Common Pleas for the City and County of Philadelphia, By an act of the legislature of Pennsylvania passed on the 8th day of February 1834, entitled “An act supplementary to an act entitled “ An act to incorporate the Philadelphia, Germantown and Norristown Rail-road Company,” the company were authorised to alter, in certain respects, the course of the road as directed by the act of 1831.

<p>IN ERROR.</p> <p>The book of original entries of the plaintiff is admissible in a scire facias on a claim under the mechanics’ lien law, to prove that the materials fbr which, the suit was brought, were ihrnishedat and for the particular building which is the subject of the lien.</p>

<p>Air action was brought in this Court, by .James Stevenson, trustee of Wm. Crooke Stevenson, Elizabeth Stevenson, Susan Stevenson, and Anne Stevenson, against Sanfuel Grant, and Henry Seaton, surviving executors of the last will of William Stevenson, deceased. An action was also brought by James Stevenson, trusr tee of Wm. Crooke Stevenson, against the same defendants.</p> <p>In these actions, a case was stated for the opinion of the Court,- as follows:</p> <p>“ William Stevenson of the city of Philadelphia, died in December, 1832, having previously made his last will, bearing date December 1, 1829, to which are annexed sundry codicils, bearing date respectively—[1] 1829, December 1; [2] 1-829, December 26; [3] 1830, August 28; [4] 1830, November 11; [5] 1832, January 25; [6] 1832, March 24; [7] 1832, August 24; [8] 1832, September 22; [9] 1832, October 8; [10] 1832, October 12; [11] 1832, December 3; [12] 1832, December 5.</p> <p>The said will and codicils, were duly proved December 20,21, and 26,1832; and on the 2d and 3d of January, 1833, letters testamentary, issued from the register of Philadelphia county, to Rowland Stevenson—the widow and executrix—and to. the defendants, the present surviving executors.</p> <p>By the said will, the testator bequeaths as follows: ‘</p> <p>“ Item.—I give and bequeath unto the children of my nephew, John Hunt Stevenson, deceased, a legacy or sum of fifteen thousand five hundred dollars, to be paid to their grandfathers, John Wister and James Stevenson, in trust, to be placed out and continued at interest, for the benefit of the said children: and, upon their arrival at the age of twenty-one years, to pay to them respectively, their respective equal part thereof, and to apply the interest thereof, in the mean time accruing,' for the equal support, maintenance, and education of the children of my said deceased nephew, John Hunt Stevenson; .and in case any or either of-the children of my said deceased nephew shall die in their minority, without leaving any 'issue, then I give the párt and share of him or them, so dying, to the survivors or survivor of the said children.”</p> <p>“ Item.—I give and bequeath to Grace Osborn Stevenson, and William Crooke Stevenson, two of the children of my said nephew, John Hunt Stevenson, deceased, to each of them, a legacy or sum of eight hundred dollars a piece, to be paid to their grandfathers, aforesaid, in trust, to be placed out and continued at interest until they respectively shall ari’ive at full age; and in case both or either of them, the said Grace Osborn Stevenson, and William Crooke Stevenson, shall die before attainixxg the age of twenty-one years, without leaving any issue, then I give and bequeath the said legacy intended for such decedent or decedents, and all the interest accrued thereon, and all accumulation thex’eof, unto all the then surviving children of my said nephew, John H.unt Stevenson, deceased, in equal parts.” * * ' * * , - # #</p> <p>“And all the rest, residue, and remainder of all my estate, both real, personal and mixed, whatsoever aixd wheresoever, including all such articles a,s I have hei'einbefore given to my said wife, for life, I give, devise, axxd bequeath in manner following—that is to Say;,J # # * #</p> <p>“ Two full, equal nixxth parts thereof, unto the children of my nephew, John Hunt Stevenson, deceased, their heir's, executors, administrators, and assigns, forever, to be equally divided between them, part and share alike.”</p> <p>In the third codicil to the said will, dated August 28th, 1830, the testator reduces his said bequests, as follows:</p> <p>“Whereas, I have in xny said will, given and bequeathed unto the children of my nephew, John Hunt Stevenson, deceased, a legacy or sum of fifteen thousand five hundred dollars, and since the date of my will, two of the said children have died, I do now revoke the said legacy of fifteen thousand five hundred dollars, and hereby give and bequeath to the children of my said nephew, John Hunt .Stevenson, deceased, a legacy or sum of ten thousand five hundred dollars, to be paid in the manner, and subject to the provisions set forth in my will, with regard to the said legacy of fifteen thousand five hundred dollars.”</p> <p>“ I hereby revoke the legacy given in my said will, to Grace Osborn Stevenson, of eight hundred dollars; she, the said Grace Osborn Stevenson, being one of the said children of my nephew, John Hunt Stevenson, deceased, who have died since the date of my said will.” •</p> <p>In the fifth codicil, dated January 25, 1832, to his said will, the testator further reduces his former bequests, as follows:</p> <p>“ Item.—I hereby revoke the legacy of ten thousand five hundred dollars, given in my above mentioned codicil, to the children of my deceased nephew, John Hunt Stevenson; and I do hereby give and bequeath to the children of my said deceased nephew, a legacy or sum of eight thousand dollars, to be paid in the manner, and subject to the provisions in the said codicil referred to.”</p> <p>In the sixth codicil to the said will, dated March ’24, 1832, the testator makes the following further revocation:</p> <p>“ First.—I revoke the devise of two-ninth parts of my residuary estate, given and devised by me to the children of my nephew, John H. Stevenson, deceased,—and, in lieu thereof, I give and bequeath to each of the said children, a legacy or sum of one hundred dollars a piece, to be paid to their grandfathers, or either of them, for the use and benefit of the said children.”</p> <p>In the 11th codicil to the said will, dated December 3, 1832, the testator further revokes, and- disposes, as follows:</p> <p>“ I hereby annul my bequest to the children of my nephew, John Hunt Stevenson, deceased, except that to the son William Crooke Stevenson; and should he not live to attain the age of twenty-one years, what I have left to him, I direct shall be equally divided between his sisters, share and share alike.”</p> <p>The children of John Hunt Stevenson, the said nephew of the testator, were at the entry of these actions: William Crooke Stevenson, Elizabeth Stevenson, Susan Stevenson, and Anne Stevenson.</p> <p>John Wister, one of the grandfathers of the said children, and their co-trustee with James Stevenson, under the will, renounced the said trust, by deed of renunciation, dated August , 1834, and filed - 1834, in the Register’s Office for the county of Philadelphia.</p> <p>The questions for the opinion of the Court, are, to what extent, and in favour of which of the legatees, the three bequests aforesaid, of $8000, $800, |100, were in force and unrevoked at the death of the testator.</p> <p>1. If the Court shall be of opinion that neither of the said bequests remained in force, except as to William Crooke Stevenson, then judgment to be entered for the plaintiffs ■' in the second suit, for so much as remained unrevoked in regard to him.</p> <p>2. If the Court shall be of opinion, that any of 'the said bequests remained unrevoked, in regard to all the legatees, then judgment to be entered in the first suit for the plaintiffs, for so much as remained so unrevoked.</p> <p>3. If the Court shall be of opinion, that none of the said bequests remained unrevoked in regard to all the legatees, then judgment to be entered in the first suit for the defendants.</p> <p>The amount of the judgment in each case, to be settled by the attorneys of the parties, upon the principles established by the Court, in their opinion; and in case of disagreement, by a referee, to be appointed by the Court.”</p>

Aw action was brought in this court to the present term, by Holme against John C. Harrison, executor of the last will and testament of William Maghee, deceased; and the following case was stated for the opinion of the court. “ William Maghee was seized inter alia in his life-time, as of fee, of and in the lots and premises mentioned in the case entered, and made his last will and testament, dated the sixth day of September, 1821, in the words following : ‘ Be it remembered,…

<p>On the 26th of January 1837, a rule was granted on the Commissioners of the county of Philadelphia, requiring them to show-cause why a mandamus should not issue, commanding them to draw warrants on the county treasurer for damages due to Thomas Hewitt and Norris Stanley, on the opening of Leonard street or M‘Ginnis Court, and Carbon street; which rule was founded on the following affidavits.</p> <p>“ Henry M. Phillips being duly sworn, doth say, that on the twentieth day of January 1837, he presented to the Commissioners of the county of Philadelphia, (all three being present,) an order drawn by the Clerk of the Court of Quarter Sessions for the county of Philadelphia, and certified under the seal of said court: whereby the said court ordered that the Treasurer of the county of Philadelphia pay to Thomas Hewitt or to Henry M. Phillips, Esq. his attorney, the sum of five hundred dollars, (being the sum awarded for his damages on the opening of Carbon street in the city of Philadelphia,) out of the county stock, and demanded from the said commissioners their warrant upon the treasurer for the said sum, which was refused; the commissioners asserting, they could not draw any warrant for sums not ordered by the county board to be paid. This affiant further saith, that he presented the same order to Geo. W. South, Esq. County Treasurer, and demanded from him payment. The treasurer replied that he could not pay it, though there was more than that amount in the treasury for county purposes. This affiant further declares, that as he has been informed and verily believes, there was, at the time he made the above demands, and still is, in the county treasury a sum of money, not otherwise appropriated by law, more than sufficient to pay the amount of the above-described order. And this affiant further saith, that on the 7th of April 1835, he presented the said order.to the county commissioners and treasurer for- payment; which was refused, there being (as they alleged) no funds in the treasury sufficient for that purpose; and further this affirmant saith not.”</p> <p>(Copy of the order above described.)</p> <p>“ In the Court of Quarter Sessions for the County of Philadelphia.</p> <p>The viewers appointed by this court to view and inquire what damages the owners of property will sustain by reason of the opening of Carbon street from South to Spruce streets, made report to the said court on the 3rd day of December 1834, that Thomas Hewitt has sustained damage to the amount of five hundred dollars; which said report was by the said court on the sixth day of April, a. d. 1835, confirmed absolutely.</p> <p>And it is ordered by the said court, that the Treasurer of the County of Philadelphia pay to the said Thomas Hewitt or to Henry M. Phillips, Esq. his attorney, the aforesaid sum of five hundred dollars out of the county stock.”</p> <p>“ On this twentieth day of January in the year one thousand eight hundred and thirty-seven, before the subscriber, an alderman in and for said city, personally appeared Norris Stanley, who on his solemn oath did-depose and say, that on the 20th of January 1837, he presented to the Commissioners of the county of Philadelphia an order of the Court of Quarter Sessions of the said county, signed by the clerk and certified under the seal of the said court, directing the treasurer of the county of Philadelphia to pay to him, the said Norris Stanley, the sum of eighteen hundred dollars, and demanded payment thereof; that he received for reply from one of the county commissioners, (on behalf of the said board) that the order could not be paid, and the commissioners could not draw any warrant upon the county treasurer, as they had not the legal right so to do. That this deponent then on the same day presented the same order to George W. South, Esq. County Treasurer, and demanded payment; that the treasurer replied, it could not be paid, although there was plenty of money in the treasury. And further this deponent saith not.”</p> <p>(Copy of the order above referred to.)</p> <p>“ In the Court of Quarter Sessions for the county of Philadelphia.</p> <p>' The viewers appointed by this court to view and inquire what damages the owners of property will sustain by reason of the opening of M‘Ginnis Court or Leonard street from South to Shippen streets, made report to the said court on the 30th day of October 1835, that Norris Stanley has sustained damage to the amount of eighteen hundred dollars ; which said report was ,by the said -court on the twelfth day of July 1836, confirmed absolutely.</p> <p>And it is ordered by the said court, that the treasurer of the county of Philadelphia pay to the said Norris Stanley the aforesaid sum of eighteen hundred dollars out of the county .stock.”</p> <p>To this rule the Commissioners made the following return:</p> <p>“ The undersigned commissioners of the County of Philadelphia having been served with rules in the above cases to show cause why a mandamus should not issue to them, to draw warrants on the county treasury for the amount of damages respectively due to the relators, make the following return to the same.</p> <p>1st. That there is not in the county treasury at this time, nor w:as there at the time of the application of the relators to them, any funds applicable to the payment of such orders; the whole balance then in the treasury being demanded for current expenses, and otherwise specifically appropriated. The amount actually in the treasury was $56,032 76; the amount due, but not collected from the tax fund of 1836, was $29,700 96; in all $85,733 72. The arrears of taxes of 1836, will not be paid in all probability till the 1st of April 1837. The county are now liable for requisitions under various acts of assembly, exceeding the amount actually in the treasury, and will before the 1st of April, 1837, be liable to requisitions, amounting in all to $101,963 65, leaving a deficit of $16,229 93. On inquiry of the county treasurer, they are satisfied that this statement is correct, and that there can be no change till .the county board shall be convened, and authorise the rate per centum of county tax for the current year. By the act of assembly constituting the county board, the commissioners are prohibited from convoking the board during the sessions of the legislature, and must give ten days previous notice of the time of meeting. It may be assumed therefore, that no means of relief can even be authorised before the 10th or 15th of April, 1837, and that no part of the fund so authorised can be realised and made available, till the 1st of September, 1837. The whole amount of requisitions above stated, $101,963 65, will be called for before the 1st of April, 1837. The estimated deficit on the 1st of September next, is $41,229 93. The commissioners, therefore, have no hesitation in making returns to the rules of your honourable court, that there is no money in the treasury applicable to the payment of damages due to the relators, nor will there be, until the county board shall take such measures for the relief of the county, as to them may seem expedient.</p> <p>2d. The' commissioners further return, that by the act of 10th of April, 1834, constituting the county board, the power of authorising loans on the credit of the county, is vested exclusively in that body; and by the 38th section of the act of 16th June, 1836, the county board is authorised, when they deem it expedient, in all cases of ' loans authorised by them, to appropriate the proceeds thereof, and certify the same; and in • no case shall .any part of the proceeds of said loans be paid out of the county treasury, except under such appropriations. That in pursuance óf said .authority, the" county board, at a meeting held on the 15th of July, 1836, (the proceedings of which are made part of this return,) authorised a loan of $440,250, and especially appropriated the proceeds thereof. By reference to these proceedings, it will be seen that $409,195 was to be borrowed forthwith, to-be appropriated in the manner therein specified; and holders of orders for damages in pertain enumerated cases, (not however comprising those of the relators,) were authorised to take certificates of said loan, bearing five per cent, interest, in satisfaction of the said orders. That besides this loan of $409,195, to be forthwith raised, a further loan of $31,055 was authorised, conditioned on the state of facts hereafter to be set forth. The proceeds of this loan were also specifically appropriated, with power of subscription; and among the appropriations thus made of the said conditional loan, was $6,625, to pay damages on M'Ginnis’ court or Leonard street, comprising the claim of Norris Stanley, one of the relators, and $4,850 on Carbon st. comprising the case of Hewett the other relator. The contingency on which this loan was to be authorised, was the following.</p> <p>By the acts of 3d April, .1804, (4 Smith, 198,) and 25th of March, 1805, (4 Smith, 232,) regulating the opening of streets, &c. in the City and County, of Philadelphia, after providing for the assessment of damages, it is enacted that unless the same shall be paid within one year next after the return made by the viewers, all such proceedings as aforesaid shall be void and of no effect. More than a year having elapsed from the time of the return of the viewers of damages, in the cases to be settled by the loan of $31,055, without the payment of the damages, in consequence of the want of funds in the county treasury; the County Board deemed it expedient to make the borrowing of that amount conditional on the decisions of your honourable court, either on a case stated, or application for a mandamus on the question arising out of the provisions of the act of assembly first referred to, in the cases in which rules have been taken on your respondents. It appears by the affidavits that in'the case of Carbon street, the report of the viewers in favour of Thomas Hewitt, was made to the Court of Quarter Sessions on the 3d December, 1834, and the certificate of the board was issüed on the 15th of July, 1836; more than ‘a year expiring after the return of the viewers withodt payment of the damages ; thus presenting the case contemplated by the board. If on the case thus presented, the court should be of opinion that the lapse of one year under these circumstances has not avoided the proceedings, the relators would be compensated out of the loan which the commissioners would be authorised to raise; if it has, the relator is entitled to no damages from the county.</p> <p>In the case of Leonard street, it appears that owing to some misapprehension unknown to your respondents, the amount to pay damages on Leonard street, was comprised in the loan of $31,055, although a year had not elapsed after the return of the viewers, the return being on the 30th of October, 1835. Still the case being specifically provided for by the certificate, and your respondents having no authority to borrow money, or to appropriate it when borrowed, except according to the certificate, there is no relief in their power.</p> <p>The commissioners in showing cause why the mandamus in these cases should not issue, have made this detailed return in order to show the court,</p> <p>1. That there is no money in the treasury which is not wanted to defray the current expenses of the county, and that there is not sufficient even to defray them.</p> <p>2. That if there were, the claims of the relators are both specifically provided for in the certificate and schedule of the county board, issued and dated the 15th of July, 1836, and could not be paid out of the ordinary receipts of the treasury.</p> <p>All of which is respectfully submitted.</p> <p>J. Engelman,</p> <p>C. F. Hoecklev,</p> <p>County Commissioners.” .</p> <p>The certificate of the County Board, referred to in the foregoing return, was as follows:—</p> <p>“ In pursuance of the authority conferred by law; the county board issue the following certificate.</p> <p>An additional .funded debt of four hundred and forty thousand, two hundred and fifty dollars is hereby authorised on the credit of the county, to bear an interest of five per cent, per annum, and no more; payable half-yearly; the principal payable the 1st of January, 1860, or sooner, with the consent of the holder.</p> <p>The county commissioners are authorised, on the terms, and únder the restrictions hereinafter provided, to issue proposals forthwith, for a loan of four hundred and nine thousand, one .hundred and. ninety-five dollars, part of said loan of four hundred and forty thousand, two hundred and fifty dollars.</p> <p>The said amount, when realised, to be appropriated as follows:</p> <p>1st. To the payment of outstanding warrants, as per schedule, one hundred and thirteen thousand, six hundred and forty-three dollars and ninety-six cents, $113,643 96</p> <p>2nd. To the payment of road-damages, as per-schedule B., one hundred and eighty-nine thousand four hundred and twenty-nine dollars, and thirty-three cents, 189,429 S3</p> <p>3rd. To Eastern Penitentiary, four thousand dollars, 4.000 00</p> <p>4th. To Moyamensing Prison, thirty thousand dollars, ' - ■ 30.000 00</p> <p>5th. To Vagrant’s Apartment, thirty thousand dollars, 30.000 00</p> <p>6th. To rebuilding bridge near Bridesburg, ten thousand and sixty-six dollars and seventy-one cents, 10,066 71</p> <p>7th. To meet deficiency in receipts for 1836, twenty-six thousand dollars, 26.000 00</p> <p>8th. To Mayor’s Court, Northern Liberties, five thousand dollars, 5.000 0Q</p> <p>9th. To pay damages on Lybrand street, in case the Supreme Court shall decide to grant a mandamus on the county commissioners to draw their warrant therefor, or on a case stated to that effect shall determine that the same shall be paid : more than a year having elapsed after the final confirmation of the report, without the payment of damages ; and in case the Supreme Court shall decide that the same shall not be paid, the proceedings having become null and void, then into the treasury for county purposes, 1,055 00</p> <p>$409,195 00</p> <p>The said commissioners are hereby further authorised, in case only the Supreme Court shall, on said application for a mandamus on case stated, decide that the above-mentioned amount of one thousand and fifty-five dollars shall be paid as damages, to issue proposals for an additional loan of thirty-one thousand and fifty-five dollars, at five per cent., reimbursable as aforesaid, being the balance of the larger loan of four hundred and forty thousand, and two hundred and fifty dollars, to be appropriated to pay the amount of all awards of damages for streets and roads named in schedule C., confirmed prior to the date of this certificate, and remaining unpaid. The said sum of thirty-one thousand and fifty-five dollars not to be borrowed, unless the decision of the Supremé Court be as aforesaid.</p> <p>The terms and measures of advertising for and taking the said loan of four hundred and forty thousand two hundred and fifty dollars, or any part thereof, shall in all réspects be the same as wg§ provided for in the act of the 10th of April, 1834, except that the certificates shall be for the shares of fifty dollars ; and' the county commissioners shall append to their advertisement for proposals, a copy of the 40th section of the act of the 16th of June, 1836, entitled an act regulating election districts, &c.; and that the said proposals shall be opened in the presence of the county commissioners, the county treasurer, and at least two of the commissioners of the sinking fund, a majority of whom shall decide which are the best proposals for the said loan; and further, that any .person interested in appropriations, No. 1 and No. 2 aforesaid, may at any time after the 25th of July, 1836, and before the negociation of the said loan of four hundred and nine thousand one hundred and ninety-five dollars, on presenting and delivering up his warrant on the treasurer, be allowed to receive a certificate of county stock for the amount of his said warrant, with which he shall credit the county as cash, but no certificate shall-issue for a fraction of fifty dollars. The same right to take stock in the provisional loan of thirty-one thousand and fifty-five dollars, to be extended to damages for streets and roads, confirmed prior to the date of this certificate, when such decision of the Supreme Court shall be had.</p> <p>The two said loans of four hundred and nine thousand, and one hundred and ninety-five dollars, and thirty-one thousand and fifty-five dollars, making altogether four hundred and forty thousand, and two hundred and fifty dollars, to be considered as loans authorised prior to the 1st of August, 1836, and within the scope and effect of the 40th section of the act of the 16th of June, 1836, creating a county sinking fund.</p> <p>Witness our hands at Philadelphia, this 15th day of July, a. v. 1836.”</p> <p> Second Report. </p> <p>“ In pursuance of authority conferred by law, the county board issue this supplementary certificate, hereby authorising the commissioners of the County of Philadelphia, to advertise and receive pro-' posáis for a loan, on the credit of the county, of two hundred and five thousand dollars, being part of the larger loan of four hundred and nine thousand, one hundred and ninety-five dollars, authorised on the 15th of June last, and to negociate the same on the most advantageous terms that can be had therefor. The notice, terms and conditions of said loan of two hundred and five thousand dollars, except so far as relates to the rate at which the same may be negociated, to be in all respects the same as in the case of the said larger loan of four hundred and nine thousand one hundred and ninety-five dollars. The said loan of two hundred and five thousand dollars, when negociated, to be appropriated for the purposes specified in schedule E, and for no other purposes whatever. Provided that nothing in this supplemental certificate shall be taken to affect the right of any of the creditors of the county, mentioned,in the former certificate and schedules thereto appended, to take certificates of said larger loan, in liquidation of their respective claims. In witness whereof we have hereunto set our hands and seals, this 5th day of October, a. d. 1836.”</p>

Benjamín Warner, of the City of Philadelphia, died in the month of September, 1821; having made his last- will and testament as follows:— “ Be it remembered, that I, Benjamin Warner, of the City of Philadelphia, Bookseller, being of sound mind, memory and understanding, do hereby make my last will and testament, in manner following, that is to say— First—I will that all my just debts and funeral expenses shall be duly paid and satisfied, for which, and other purposes…

<p>This was a writ of error to the District Court for the City and County of Philadplphia, to remove the record of an action of trespass vi et armis, de bonis asportatis, &c. brought by John Streeper against i hristian Eckart and W. B. Freeston.</p> <p>The circumstances, which led to the action, were as follows:—■</p> <p>On the 17th of August 1832, Christian Eckart obtained a judgment before a magistrate against one Thomas Jefferies for the sum of $70 55. On the 30th of August following, Thomas Jefferies executed a bill of sale to John Streeper of three horses and five' carts for the price or sum of $375. An execution issued in the suit of Eckart v. Jefferies on the 11th of September, and was levied on the horses and carts which were then in the possession of Jefferies. Streeper, the alleged vendee, gave notice to the constable on the 25th of September, that the horses and carts belonged to him; and that they would be claimed from any person who might be possessed of them. The constable nevertheless proceeded ro sell them; and .Streeper brought this action against him and Eckart to recover damages for the taking.</p> <p>On the trial before Pettit, President, the plaintiff proved the bill of sale, and an article of agreement entered into between him and Jefferies on the 31st of August 1832, as follows:</p> <p>“Article of agreement, .made and concluded between John Streeper and Thomas Jefferies, of the Northern Liberties, (carter,) -—To wit: the said John Streeper agrees to let to the said Thomas his three horses, two of which are bays and one a spotted horse. Being the same three horses which the said John, Streeper bpught of the said Thomas on the 30th inst. Likewise, five carts, on snares. That is, the said Thomas is to have the use of the said horses and carts to work with; and the said John is to find feed for the horses sufficient, and keep the carts pi'repair; and to receive the one-half of what the said Thomas may earn by the use of the said horses and carts. And he, the said Thomas, is to keep them in profitable employ. If not, the said John is at liberty to take them, and deprive the said Thomas of the use of all, or either. Witness their hands, August 31st,. 1832.”</p> <p>The plaintiff also examined several witnesses to prove, that Jefferies was indebted to him prior to the 30th of August 1832, and had agreed to transfer the horses and carts to him in consideration thereof; and that the horses and carts were actually his property, and merely hired to Jefferies.</p> <p>The defendant’s counsel produced the judgment and execution against Jefferies, under which the property was sold.</p> <p>The learned Judge charged the jury as follows:—</p> <p>“ Pettit, Pres’t.—The amount of property in question in this case, is not large; but the principles involved are of some importance. Christian Eckart, the defendant, is charged in this action of trespass with having illegally taken certain horses and carts, claimed as belonging to John Streeper, the plaintiff. It is not disputed that the property was taken on an execution, but of the hands of one Jefferies. Eckart’s case is substantially this. He obtained a judgment against Jefferies, before a justice of the peace, on the 17th of August 1832, when Jefferies was the undisputed owner and possessor of the property, which became the subject of dispute. Execution was issued on the 11th of September 1832, and this property was found in the actual possession of Jefferies, and levied on. Streeper says that between the date of the judgment, and the day of the levy, he took possession of the property as a purchaser, and hired it again to Jefferies; and he asserts, that in this he did what was lawful. Now, here the plaintiff is met by a principle of law, viz.: that after .a judgment has been obtained, a transfer by the defendant, of his goods and chattels, is looked upon as wearing a deep complexion of fraud, and . as subjecting to a very jealous examination the conduct of both alienor and alienee; and that even where there is a full consideration, if the possession remain with the debtor, the act is void, as against creditors. 10 Sei-g. <§■ Ramie, 424. A party claiming against the creditors, would be bound to remove all doubt of the fairness of the transaction, even if possession accompanied the transfer. With this preliminary caution, of which the defendant has the advantage, the jury will look at the plaintiff’s cage ; for if it is not shown that he was a creditor of Jefferies’s, there is an end of the controversy. The plaintiff alleges, that he was a creditor; the defendant denies it; and the point is for the jury, as a question of fact.</p> <p>(The Judge here repeated some of the testimony, and noticed some of the arguments ; and under the above remarks, left the question of fact for the decision of the jury.)</p> <p>But suppose the jury are satisfied that Streeper was a creditor of Jefferies, then the question presents itself: was there such a transfer of property as the law will sustain 1 As a general proposition, it is certainly competent to a debtor to make a bona fide sale of personal property, notwithstanding there is a judgment against him. As a general proposition, it is equally true that horses and carts may be lawfully hired out by the owner of them, to another person. The effort here, I understand to be, by a combination of these two principles, each true by itself, to control and defeat, or rather to escape from the effect of another general proposition, which must be admitted to be true, to wit: that possession must accompany the transfer of personal property, or it is void- against creditors.</p> <p>This brings us to the inquiry, what kind of possession does the law require ? The answer is, that the possession must be absolute and exclusive. There must be nothing colourable about it. I refer of course to property capable of delivery, as this was. So far as the alienor is concerned, the possession must be substantial and continuing in its character. No device or contrivance which the wit of man could suggest, short of an open and unequivocal possession, would be allowed to defeat the rule of law.</p> <p>The putting a third person in charge with the alienor, is but a concurrent possession, and would be inoperative. The taking possession of horses and carts for a single night, followed by a restoration of them in the morning, on an alleged contract of hiring, when the design that they should be restored, existed at the time of the taking possession, would be a device in fraud of the law, and would not be permitted to prevail. Where'the object of the whole arrangement is a mere security on the goods, and the former owner is allowed to retain them, or after a formal and temporary possession, intended so to be, is suffered to obtain them again with all the visible marks of ownership, the arrangement is void as against creditors. Any mere temporary possession taken with a vieVv of evading the rule of law relative to unequivocal possession, but which is followed by placing the party and the property visibly in the face of the world, just where they were before the alleged transfer, would be fraudulent. In thus stating the law, I do but carry out the principles of the decisions of the Supreme Court. If the rule which those decisions have recognised, not as new, but as old and previously well established law, could be so readily eluded, they would have been pronounced to but little purpose. The rule certainly has vigour enough for self-protection.</p> <p>Then what is the case here ? Mrs. Jefferies and Mr. Shaw both say, that the object was to secure Mr* Streeper. Mr. Shaw suggested the sale of the 30th of August, the delivery of temporary possession, and the return of the property under a contract of hiring as manifested by the paper-dated the 31st of August. The plaintiff’s counsel have fairly met this point, and treated the two papers of the 30th and 31st of August, as having been executed in pursuance of an original purpose existing before the date of the first of them. If Streeper .took the articles on the 30th of August with-an understanding existing at the moment, that he was to restore them the next day on a contract of hiring; and Jefferies the next day accordingly re-took them into his own use and possession, the transaction was fraudulent in law, and void as against Eckart’s execution.</p> <p>Another point was suggested by the defendant’s counsel, namely, that Eckart was not liable in this suit, even supposing Streeper to have a legal claim upon the property. The case is Tree from legal difficulty on this head. If Eckart knew of the levy, and after receiving notice of Streeper’s claim, approved of the proceedings of the constable; if he attended at and gave his sanction to the sale under his own execution, he is liable; for the trespass, if any was committed.”</p> <p>The plaintiff’s counsel excepted to the charge; and the jury having found for the defendants, he took a writ of error from this court.</p> <p>The following specifications were filed-</p> <p>1st. “ The judge erred in charging the jury that a conveyance - by an individual of his goods and chattels after a judgment is obtained against him, wears a deep complexion of fraud, and that even where there is a full consideration, if the possession remain with the debtor, the act is void against creditors.</p> <p>2d. The judge erred in charging the jury that there was not such a transfer of property as the law will sustain; because the possession of personal property must be exclusive and continuing in the person to whom it is transferred.</p> <p>3d. The judge erred in not charging the jury that inasmuch as horses and carts and so forth are the subject of ordinary hiring, that suffering the alienor to take possession - of them after a transfer for a full consideration to be uséd for the benefit of the alienee. That the_ alienee has such a property in them as will enable him to maintain an action against any person who may take them.</p> <p>4th. The judge erred in not charging the jury, that from the evidence there was a full consideration paid for the horses and cans, and possession taken of them under a bona fide sale; and that the plaintiff was entitled to a verdict.</p> <p>5th. The judge erred in charging the jury, that a party claiming against the creditors would be bound to remove all doubt of the fairness of the transaction, even if possession accompanied the transfer.</p> <p>6th. The judge erred in charging, that “the taking possession of horses and carts for a- single night, followed by a restoration of them in the morning, on an alleged contract of hiring, when the design that they should be restored, existed at the time of the taking possession, would be a device in fraud of the law, and would not be permitted to, prevail. . ■'</p> <p>7th. The judge erred in charging, that “ if Streeper, the plaintiff, took these articles on the 30th of August with an understanding existing at the moment, that he was to restore them the next day on a contract of hiring, and Jefferies the next day accordingly re-took them into his own use and possession, the transaction was fraudulent in law, and void against Eckart’s execution.”</p> <p>The case was submitted without argument.</p>

<p>IN ERROR.</p> <p>The charter of a private corporation provided, that if any member should be found breaking the rules of the society, he should be served with a notice to attend to answer at the next stated meeting, after which a decision should be held' by ballot; and if two-thirds considered him guilty, he should be dealt with agreeably to the by-laws. The by-laws . provided that no member shall be entitled to receive any benefit from the society whose complaints are the result of intoxication,” &c. A member having been expelled, by the requisite majority, on the ground ofintoxication, after due notice, &c. brought an action in the Court of Common Pleas to recover the allowance granted to disabled members. Held, that the regularity of the proceedings to expel him could not be inquired into in that action; and that the court had no jurisdiction to compel payment of the allowance, by such action.</p>

<p>Of a writ of error to the District Court for the City and County of Philadelphia, it appeared that Henry D. Steever brought an action on the case for slander, against Tobias Beehler, to the term of September, 1833.</p> <p>The first count of the declaration charged the defendant wi< speaking the following words to the plaintiff: “ You are a villa! and a swindler, and you conspired with others to cheat me.” The second count laid the words to be spoken of the plaintiff, “ He is a villain and a swindler,” &c. In the third count the words were thus laid ; “You are a cheat, a villain and a swindler, and conspired with others to cheat.” In the fourth count the words were, “ You are a damned villain and a swindler, and you conspired with others to cheat and swindle me out of my money.”</p> <p>At the trial of the cause before Pettit, President, on the 21st of November, 1836, a witness named Vantine was produced on the part of the plaintiff, who testified as follows:</p> <p>“Some time, I think in the middle of July, 1833, or rather the latter part of it, as I was sitting at my breakfast, I heard a very loud talking in the street. I then went to the door and looked across . the street, and saw Mr. Steever and Mr. Beehler at the corner of Race and Third streets, at Sellers & Davis’s store. I then went down to the corner, and saw Steever and Beehler standing both on the pavement, near the sill of the door. Mr. Beehler was shaking his fist about; appeared to be very much agitated, and calling him ugly names; among the rest, he said, “ you are a liar and swindler, and a damned villain, and you have conspired with others to cheat me out of my money;” these are the very words; at the same time shaking his fist under his nose; I thought he was going to strike him; appeared to be in a great passion; he was talking constantly; he was near to Steever when he spoke the words to him ; had his sleeves rolled up; I stood there about five minutes; he called him those names twice in my hearing, whilst I was there; I then left, and went to my shop, which is the fifth door above Race, in Third street; there were people collected together, from thirty to fifty, some from Mayland’s factory, opposite ; I could not hear any thing Steever said, if he spoke; when Beehler advanced, Steever retreated ; Beehler and Steever were both there when I left; when I left, the croud had not'separated; Mr. Sellers appeared to be trying ta pacify Beehler; I could not hear what he said.”</p> <p>The plaintiff’s counsel then asked the following question of the witness ; “ What is the general size and build of Mr. Beehler’s person 1” to which the defendant’s counsel objected; but the learned judge allowed the question to be put, and the defendant’s counsel excepted. The witness answered, “ Beehler is a very stout man, stout built; you will not see many men as stout. It was between seven and eight in the morning; the two houses adjoining me are fifteen feet each, and Mayland’s factory is three times that, I suppose; my house is the third house, and fifth door; a cartway between the tavern; I was sitting in the room back of my shop when I heard the noise ; it was very warm weather; I did not know whose voice it was, till I went to the door, and I,found it was Beehler’s voice; I think Steever was at this time a clerk in Mr. Richards’ compting house; Beehler is a sugar-refiner; carried on business in Ann, above Vine street, and below Third; it is a large establishment.”</p> <p>A witness named Halliday testified to the same words as the preceding witness; and in answer to a ¡similar question, which was also excepted to, said, “ Beehler was about six feet high, and strong or stout in proportion.”</p> <p>Another witness named Sellers, swore, that as near as he could recollect, Beehler said, “ I believe you are conspiring with others, to cheat me out of my money.” On his cross-examination he said, “ I took the reference of the words spoken by Beehler at our store, to be to some money transactions between him and M‘Caraher; he referred to some debt due by M'Carahef to him; I did not know of any assignment of M'Caraher preferring Richards; Beehler is in Europe now ; Beehler appeared, at the time in the store, to listen to what I said; did not speak in that tone of voice as before.”</p> <p>The plaintiff’s testimony being closed, the defendant’s counsel offered a witness named Eckstein, to .prove that the defendant was in the habit of signing notes for the accommodation of Alexander M'Caraher; that it was' through th,e influence of the plaintiff that this was done, and that the notes wei’e unpaid at the time of M‘Caraher’s failure; which evidence was ■ objected to on the other side, and rejected by the court.</p> <p>The defendant also produced as a witness Mark Richards, who, after" testifying to matters not important now, was asked the following questions:</p> <p>“ Had you any conversation, the day before the occurrence at Sellers and Davis’s store, with Beehler respecting the assignment of A. M'Caraher ?”</p> <p>Again. “ Had you any such conversation within forty-eight hours of the occurrence V’</p> <p>Again. “Was Beehler a creditor of A. M‘Caraher!”</p> <p>Again. “ Was Steever, the plaintiff, in the habit of drawing notes for, and assisting A. M‘Caraher in raising money!”</p> <p>Again. “ Did Beehler express dissatisfaction with the order in which the creditors of A. M'Caraher were preferred in his assignment!”</p> <p>The plaintiff’s counsel objected to these questions, and the court refused to allow them to be put.</p> <p>The plaintiff’s counsel on the cross-examination, asked the following question, ‘What family has the plaintiff, and how many children has he!’ The defendant’s counsel objected, but the court allowed it to be put; and the witness answered that the plaintiff had three children, that he got his living as a clerk, or perhaps occasionally acted as an arbitrator, and all would depend on his good character.</p> <p>The defendant’s counsel then offered in evidence, in mitigation of damages, the assignment of A. M‘Caraher, dated July 19th, 1833, to Mark-Richards and E. Vansyclde; the plaintiff having been stated to be the confidential clerk of the former; to show such a disposition of M'Caraher’s property by the assignment, as was injurious to the defendant and likely to produce loss to him; and that Mark Richards the assignee, was so largely preferred in the assignment as a creditor, as probably to absorb the funds of the estate. The learned judge however, refused to permit this evidence to be given.</p> <p>The defendant’s counsel again offered the testimony of Eckstein, and proposed to put the question to Richards, before mentioned, but the court again rejected them. To all which decisions the defendant excepted.</p> <p>The evidence having been closed on both sides, the counsel for the defendant requested the judge to charge the jury as follows:</p> <p>1. “ That none of the words stated in the declaration are under any circumstances actionable, except the words “ you,” or “ he” “ conspired with others to cheat me.”</p> <p>2. That if the jury find for the plaintiff, no damages can be given, except for those words which are actionable; and that the words having been spoken in theheat-of passion, and an offer of an apology having been promptly and repeatedly made, are strong circumstances in mitigation of damages.</p> <p>3. That if the jury believe from the evidence,'that the words used by the defendant were as stated by Mr. Sellers—“ I believe you are conspiring with others to cheat me out of my money”—these words are not actionable, and there is a variance between the words as laid and as proved, and the verdict ought to be for the defendant.</p> <p>4. That if the jury believe, from the evidence, that the words were Spoken by the defendant in the heat of passion, and merely as general abuse, and were neither intended by him, nor understood by the bystanders as charging the plaintiff with having committed an indictable offence, but referred merely to the defendant’s belief that the plaintiff was privy to, or had influenced Mr. M'Caraher, in making his assignment, to provide for Mark Richards, and others, creditors, in preference to the debt due to defendant for accommodation notes lent by him to M'Caxaher, then the verdict ought to be for the defendant.”</p> <p>The judge charged the jury as follows:</p> <p>“ This is an action on the case for slanderous words. The plaintiff alleges in his declaration that the defendant falsely and maliciously uttered the following words, addressed to the plaintiff:</p> <p>£ You are a villain and a swindler, and you conspired with others to cheat me.’ And in another count—</p> <p>‘You are a. damned villain and a syvindler, and you conspired with others to cheat and swindle me out of my money.’</p> <p>One witness, Mr. Vantine, says he twice heard the words, ‘You are a liar and swindler, and a damned villain, and you conspired with others to cheat me out of my money.’</p> <p>Another witness, Mr. Halliday, testifies to the words, ‘ You are a liar, a damned scoundrel, and a swindler, and you conspired with others to cheat me,’ as nearly as the witness could recollect; and the witness added that the defendant repeated the charge more than once.</p> <p>So far it would seem that the words as laid were substantially and almost literally proved; and if the jury adopt as true the testimony of these witnesses, this I understand is not denied.</p> <p>Another witness, Mr. Sellers, testified to the words, as far as he could recollect them, “You are a liar, and I believe you are conspiring with others to cheat me out of my money.” Throwing out of view for a moment the words swindler and villain, which are in the plaintiff’s declaration, and which by themselves would be mere words of opprobium, in which the vulgar are privileged to indulge; the other words as laid, ‘ you conspired with others to. cheat me out of my money,’ are actionable in themselves; conspiracy to cheat being a crime involving moral turpitude, and punishable by indictment, and the imputation of such a crime being actionable, (3 Serg. dr Rawle, 258.) No damages can be given except for the actionable words. 'This being the prima facie view of the case, the other words come into operation as mere epithets, having no other effect than as tending to show the state of mind in which the actionable words were uttered. In this view they may possibly aggravate the character of the actionable words.</p> <p>These remarks answer the first and second of the points submitted in writing by the defendant’s counsel, to be charged upon by the court, excepting so much of the second point as relates to the heat of passion, and an offer of an apology; in regard to which I will say a few words presently.</p> <p>The only other witness examined was Mr. Richards, who was called by the defendant’s counsel. The jury will recollect his testimony with that of the other witnesses.—From th'e whole, the jury have an opportunity of forming a judgment in regard to the situation and station of both plaintiff and defendant, and in relation to the time, place, and circumstances under which the words were uttered, and also to the matter of the alleged offer of an apology. The plaintiff claims damages. Before making a brief remark or two on that topic, which I shall do without encroaching upon the province of the jury, let us look to the grounds of the defence.</p> <p>1. On legal grounds—It is said ‘ that if the jury believe from the evidence that the words were spoken by the defendant in the heat of passion, and merely as general abuse, and were neither intended by him, nor understood by the bystanders, as charging the plaintiff with having committed an indictable offence; but referred merely to the defendant’s belief that the plaintiff was privy to, or had influenced M'Caraher in making his assignment to provide for Mark Richards and other creditors in preference to' the debt due to the plaintiff, for accommodation notes lent by him to M‘Caraher—then the verdict ought to be for the defendant.’</p> <p>The first branch of this position ending with the words “ indictable offence,” is true as a general proposition; but some explanation becomes necessary. Where the words are actionable of themselves, it must be satisfactorily shown to the jury that they were not used and not understood in an offensive sense as imputing the crime. It is not enough that a single witness who may have happened to know more of the parties than others of the individuals who heard the words, now at the time of the trial, gives his opinion as to their meaning.' The true question is what was understood at the time, and what might have been reasonably understood by the hearers. The words should be understood in court as „ail mankind would understand them. They ought not to be taken on the trial differently from what all mankind would understand them out of court. (3 Serg. Sg Raiole, 261.)</p> <p>Again, as to the second branch of the defendant’s fourth point. If there had been an express reference in words to a specific pecuniary loss, and an allegation of cheating by the party alone, the whole charge explaining itself at the instant, and showing no indictable offence whatever, no action would lie. But the case might be different where a defendant, referring to such a pecuniary transaction, made the charge of a conspiracy with others to cheat; for that which would not be criminal, if done by the individual, might become so, if performed by means • of a conspiracy or combination with others. Further than this—where the words in themselves unexplained at the time of their being uttered, do impute an indictable crime of moral turpitude, there is no principle of law which will authorise the Court to sáy, that the .verdict ought to be for the defendant. And .as to an independent extraneous interpretation, or glossary of the words, the modern and true rule is thus stated by Judge Duncan in the case of Eckert v. Wilson, (10 Serg. S¡- Rawle, 64):—“ That no subsequent explanation given on the trial, showing a reference to a transaction not indictable; can shield the slanderer from the whole texture of these' words,intrinsically considered as they ought to be, and explained as they appeai'ed to be by the time and manner of. speaking them.”</p> <p>The third point submitted by the defendant, will now be better understood than if noticed before the fourth. It is for the jury to determine, whether that to which each, of the three witnesses testifies, is true, without contradiction by any other witness; or whether there is a contradiction. It is in evidence that the denunciations made by the defendant, were repeated.</p> <p>The jury are hot restrained from the conclusion, that each of the varied forms of language was used. If that view be adopted, and it is the view upon which the plaintiff’s counsel argued the cause, then the answer to this third point becomes unimportant. Should a different view, however, be taken, and the jury concur in the suggestion, that the only words used were those stated by Mr. Sellers, then it would be for the jury, considering the time, place, and circumstances of the utterance, and the tone and manner of the defendant, to decide whether the criminal charge laid in the declaration, was made by the defendant or not. The mere form of expression would not require the Court, in point of rigid law, to exclude the case from the consideration of the jury. It would not be for the Court to pronounce peremptorily, that there was such a variance as to require a verdict for the defendant. This point was proposed to me in writing, just as I was about to charge the jury; and though it may have been before adverted to by counsel, yet it is due to candour, that I should add, that I did not understand the cause to have been argued on either side, as if this point were material, or as if a charge on it was expected..</p> <p>With the principles before stated in view, the jury will decide, whether their verdict shall be for the plaintiff, or for the defendant. If for the plaintiff, then there remains a very important part of your duty. The question of damages is for the jury. If the plaintiff has sustained an actual injury, the jury-may .award him compensation. Outrage to the plaintiff’s feelings and peace of mind may be considered. Trouble, inconvenience, expenses, loss of time in seeking redress, may be taken into the account. The jury may sometimes give damages to deter a defendant, and'others from similar misconduct, by correcting the defendant, especially in cases of perseverance in the slander or justification of it. This should be done cautiously, however, and only when strong circumstances demand it. The jury must exercise a prudent judgment in each case. But the defendant says here, that the damages, (if any) should not be high; and this brings us to the defence secondly in point of fact.”</p> <p>[The judge here referred to the testimony of Mr. Sellers and Mr. Richards upon the subject of an offer of a compromise, and stated the view which counsel on each side had taken of this evidence, and then proceeded as follows:]</p> <p>“ Certainly an outrage persevered in, deserves more severe reprehension than one retracted; expressions of sorrow, and an offer to compromise, ought to be carefully weighed by the'jury. Though they do not wipe out the offence, and relieve the party entirely from the claim' for damages, yet it is the province of the jury to say, what effect is to be given to.-the circumstances. While, therefore, I would advise the jury to regard this matter as worthy of serious consideration, with a view to a mitigation of the damages, yet the precise degree of strength which belongs to it, is for their own determination.</p> <p>The violent temper of the defendant has been referred to on both sides. As to general bad temper, the law will not recognize it as a justification. The jury will judge of the effect of the testimony, after having heard all the arguments of counsel.</p> <p>Again, the defendant’s counsel alleged, that the defendant spoke the words in the heat of passion, and while smarting under a severe pecuniary loss. The connexion between defendant and M‘Caraher .—between M‘Caraher and Mr. Richards—and between Mr. Richards and plaintiff, has been referred to. The connexion between the plaintiff and defendant, as to any business, is not very clear; but these matters have been adverted to.</p> <p>The law makes allowance for human frailty, for a sudden heat of passion, and provocation; but it will not permit a justification of a slander, nor even a mitigation of damages upon a principle of revenge. If a man has provocation, and has time for reflection, it is his duty to reflect. It is agreed on all hands, that nothing occurred that morning, even as to M‘Caraher. The law will not extend its indulgence for a violation of its obligations to him, who sleeps upon his provocation. It gives one charged with slander, an opportunity of pleading a justification, and making good his words. If he will not take that course, the provocation must be fresh to entitle him to the favour of the law. Then, as to the amount of damages. Though this point belongs peculiarly to the jury, yet I may remark, that if you find for'the plaintiff', you should look well to -your verdict.</p> <p>While it does justice to the plaintiff and the public, let me advise you to take care, that it does not show passion, or prejudice, or undue excitement; let it be such as you can reflect upon with satisfaction hereafter; such as will not be regarded as startling or extravagant, but will exhibit calmness, and the exercise of a sound discretion and judgment. As to the alleged and reputed wealth of the defendant, let me caution you not to'be misled on this point. It is not often that there is danger of too small a verdict in cases of this description. Where a decided and actual-injury has been inflicted, and so perseveringly pursued, as to require unequivocal punishment, and there is no other mode of inflicting it, than by the assessment of damages, a wide scope may be taken by the jury. Each case, however, should be graduated by its own peculiar circumstances. If the jury can do full justice to the pláintiff and to the community, without taking so wide a range, then the mere fact of a man’s possessing property, whether inherited, or earned by his own industry, ought not to induce a jury to do more than that full justice, looking to the whole case, requires. A poor man, it is true, may feel a given verdict more than a rich one; and a measure of damages, which may be sufficient to do what is right in regard to one, may be insufficient in regard to the other. But after all, the justice of each case must be the object to be obtained by the verdict of the jury.”</p> <p>The jury found for the plaintiff-, with $2550 damages; and the defendant removed the record to this Court, and assigned the following érrors:—</p> <p>1. “Because the court below erred in admitting evidence of the general size and build of the defendant below, and of what family, and how many children the plaintiff below had.</p> <p>2. Because the court below erred in rejecting the evidence of Samuel Eckstein, a witness ^on behalf of the defendant below, on wdiose being sworn, it was proposed to be proved by him, in mitigation of damages, that the defendant below was in the habit of signing notes for the accommodation of a certain A. M'Caraher? that it was through the influence of the plaintiff below that this was done; and that the notes were renewed by the same influence; which notes remained unpaid at maturity, and which maturity occurred after the assignment of said A. M‘Caraher had been made.,</p> <p>3. Because the court below erred in over-ruling the following questions, put by the counsel of the defendant below, to Mark Richards, a witness on his behalf, to wit :■ -</p> <p>“ Had you any conversation, the day before the occurrence at Sellers and Davis’s store, with Beehler respecting the assignment of A. M^araherl”</p> <p>Again. “Had you any such conversation within forty-eight ’hours oMie occurrence?”</p> <p>Againlr “ Was Beehler a creditor of A. M'Caraherl”</p> <p>Again. “ Was Steever, the plaintiff, in the habit of drawing notes for, and assisting A. M‘Caraher in raising money 1”.</p> <p>Again. “ Did Beehler express dissatisfaction with the order, in which the creditors of A. M'Caraher were preferred in his assignment ?”</p> <p>Which evidence of Samuel Eckstein was offered, and the said questions put, both before and after the offer to give in evidence the assignment of said A. M'Caraher, and as alleged, erroneously rejected.</p> <p>4. Because the court below erred in rejecting the assignment of A. M'Caraher, offered in evidence by the counsel of the defendant below, dated the 19th of July 1886, to Mark Richards and E. Yansyckel, (the former of whose confidential clerk the plaintiff below was stated to be in the opening of the plaintiff’s counsel) in order to show, (prout the said assignment) in mitigation of damages, such a disposition of -the said A. M‘Caraher’s property, by said assignment, as was injurious to the defendant below in this case, and of such a character as probably to produce loss to him; that the said M. Richards, in whose employment the said plaintiff below was in manner before shown, and who was an assignee under the said assignment, was so largely preferred therein as a creditor, as probably to absorb the funds of the estate.</p> <p>5. Because the court below erred.in not charging the jury as requested, by the 'defendant's counsel in the first of the points, upon which they requested'the judge to charge the jury, that none of the words stated in the declaration are, under any circumstances, actionable, except the words “ you,” or “ he conspired with others to cheat mebut, on the contrary, that the words (in the view he stated of the case on this point) may possibly aggravate the character of the actionable words.</p> <p>6. That the court below erred in stating to the jury, in answer to the first part of the defendant’s counsel’s fourth point, that it is not enough that a single witness, who may have happened to know more of the parties than others of the individuals who heard the words, now at the time of trial, gives his opinion as to their moaning ; and that the judge did not give a distinct answer to the rest of the said fourth point of the defendant’s counsel; and his answer thereto was too vague, and did not give such instructions to the jury as the said counsel had a right to require; and, indeed, what he said, was not an answer thereto.</p> <p>1. That the judge below erred in his charge to the jury upon the third of the points of the defendant’s counsel, in not stating to them, that, if they believe the words used by the defendant, were as stated by Mr. Sellers, the words in the said point mentioned, were not actionable, and there is a variance between the words as laid and proved, and there ought to be a verdict for the defendant; but said that the mere form or expression would not require the court, in point of rigid law, to exclude the case from the consideration of the jury, and it would not be for the court to pronounce peremptorily that there was such a variance as to require a verdict for the defendant, and then telling the jury, that with these principles in view, [those herein stated throughout his answer on this point] they would decide whether the verdict ought to be for the plaintiff or defendant.</p> <p>8. Because the judge below, in charging upon the question of-damages, told the jury that trouble, inconvenience, expenses, loss of time in seeking redress, might be taken into the account, when there was in fact not a particle of evidehce given of any expenses, nor of how much loss of time the plaintiff had sustained.</p> <p>9. That the judge below erred in charging the jury, that “ the jury may sometimes give damages to deter a defendant and others from similar misconduct, by correcting the defendant, especially in cases of perseverance in the slander, or justification of.it.”</p> <p>10. That in charging the jury further on part of the defendant’s counsel’s second point, (as to the'words being spoken in the heat of passion, and as to the offer of apology) the judge did not tell the jury that these were strong circumstances in mitigation of damages, as requested by the said counsel: and as to the former, (the words being spoken in the heat of passion) said that general.bad temper the law will not recognise as a justification, and the jury will judge of the effect of the testimony, after having heard all the arguments of counsel. Again, that the defendant’s counsel allege that the defendant spoke the words in the heat of passion, and while smarting under a severe pecuniary loss; and after observing that the connexion between the plaintiff and defendant, as to any business, is not very clear, the judge said that th’e__ law makes allowance for human frailty; for a sudden heat of passion and provocation; but it will not permit a justification of a slander, nor even a mitigation of damages, upon a principle of revenge; that the law' will not extend its indulgence to him who sleeps upon his provocation; the provocation must be fresh, to entitle him to the favour of the law.</p> <p>11. That the words laid in the third count of the plaintiff’s declaration, are not actionable, being laid as a conspiracy to cheat generally, and therefore not sufficiently explicit.”</p>

<p>1. The Supreme Court had no power under the acts passed previously to the 16th of June, 1836, to compel a trustee to pay over trust moneys in his'hands; and in default of such payment, to dismiss him from the trust.</p> <p>2. Proceedings to obtain relief, under the 13th section of the act of the 16th of June, 1836, conferring upon the Supreme Court the jurisdiction and powers 'of a Court of Chancery in certain cases, must be by bill and subpoena: The Court will not grant relief upon petition.</p>

<p>IN ERROR.</p> <p>A legacy cannot be attached in the hands of an executor, for the debt of the legatee, by process of foreign attachment.</p>

<p>Writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case, brought by Gedi'ge N. Baker and Benjamin Baker, trading under the firm of G. N. & B. Baker, against John Y. Clark.</p> <p>The plaintiffs were lumber-merchants, and the action was brought to recover the price or value of certain lumber furnished by them, and used in the erection of certain buildings belonging to the defendant.</p> <p>At the trial before Judge Stroud, on the 12th of November, 1835, it appeared that an agreement was entered into on the 17th of January, 1831, between the defendant and one Charles R. Middleton, a carpenter, who was dead at the time of the trial, for the erection of the buildings in a certain specified manner, and for a certain price, to be paid by the defendant to Middleton, by instalments. Shortly after this date, as was testified by a witness, a conversation took place between Middleton and the defendant; when, upon the former representing that the terms were too low for him, the defendant said that he should not lose any thing by the contract; and it was agreed that the work should go on, some alterations having been made in the plan. The defendant’s counterpart of the contract, however, was cancelled, but at what time did not appear.</p> <p>The plaintiffs produced several witnesses who had furnished materials for the buildings, to prove that they had been paid in whole or in part by the defendant. The plaintiffs’ books of original entries were also produced ; showing the lumber, for the price of which the suit was brought, to have been furnished to “ C. R. Middleton for John Y. Clark.”</p> <p>The defendant’s counsel, after examining a witness to prove the original contract, and also to prove payments to Middleton by the defendant, offered in evidence a certificate, signed by Charles R. Middleton and Enoch Middleton, bricklayer, and dated the 22d of June, 1832, setting forth that all bills, either for work done or for materials found for the buildings, were paid, and consequently that no claims or liens could be filed against them. The admission of this paper was objected to by the counsel for the plaintiffs, and rejected by the court; whereupon the defendant’s counsel excepted.</p> <p>After other testimony had been given in support of the claim, the plaintiffs’ counsel examined one John M. Ogden, who proved that he had measured the work at the request of Middleton; and that at the time Middleton called upon him for the purpose, he had some conversation with him in relation to the contract between him and Dr. Clark. The counsel for the defendant objected to any statement of the conversation between the witness and Middleton, in the absence of the defendant; but the court overruled the objection, and admitted the evidence, to which the defendant’s counsel excepted. The witness then stated, that he asked Middleton how it was that the buildings were to be measured, haviiig understood that there was a contract. He, (Middleton,) said there had been a contract, but it was cancelled and thrown aside, &c.</p> <p>The plaintiffs’ counsel then called Enoch Middleton, who testified to conversations had by himself and his brother Charles R. Middleton, with the defendant, in relation to the contract, and the erection of the buildings, showing that the contract had been abandoned, and that the buildings were erected under an arrangement by which the defendant was to pay for the materials furnished. He also testified as to a payment made by Middleton to the plaintiffs, having been on account of other buildings.</p> <p>The defendant’s counsel then again offered in evidence the certificate beforementioned, signed by the Middletons, “to contradict and explain the evidence in relation to the payment made by Charles R. Middleton to the plaintiffs;” but the plaintiffs’ counsel objected; and the paper was again rejected by the court, and the defendant’s counsel excepted. '</p> <p>After further testimony given, the counsel for the defendant proposed to ask the witness the following question. “ Have you stated verbally, or in writing, that all the bills for work, labour, or materials, done or furnished to these buildings, were paid prior to the institution of this suit, or on, or about the 22d of June, 1832,” which question was objected to by the counsel for the plaintiffs, and overruled by the court; whereupon the counsel for the defendant excepted to the opinion of the Court.</p> <p>The jury having found for the plaintiffs, the defendant took a writ of error, and on the removal of the record, assigned the following errors.</p> <p>1. “In receiving evidence of conversations between John M. Ogden and C. R. Middleton, as evidence in relation to a contract made between C. R. Middleton, and Dr. Clark; the same not having taken place in Dr. Clarke’s presence.</p> <p>2. In rejecting the certificate signed by C. R. Middleton and Enoch Middleton, when offered in evidence by the defendants, on several occasions.</p> <p>3. In refusing to allow E. Middleton to be asked, whether he had not stated verbally or in writing, “ that all the hills for work, labour and materials were paid.,” prior to the- institution of this suit, or on or about the 22d June, 1832.”</p>

<p>This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit brought in that court to June Term, 1832, by Ann Carpenter, John Smith and George Knorr, administrators of the goods, &c.. of Conrad Carpenter, deceased, against Robert Kennedy.</p> <p>The declaration contained five counts : The first was on a promissory note made by the defendant, dated the 6th of June, 1823, for $3500, payable to Conrad Carpenter and William Overington, at ninety days, at the Bank of Germantown, and endorsed, (as alleged,) by Overington to Carpenter; laying a promise to the testator. The 2d count was for motley had and received, (viz. $5000,) on the 8th of September, 1823, by the defendant, to the use of the intestate; and promise to the intestate. The 3d count was for the same sum, had and reóeived on the 14th of February, 1828, by the defendant, to the use of the 'plaintiffs ; and promise to them. The 4th count was for the same sum lent and advanced, &c. on the 14th of February, 1828, by the plaintiffs, to the use of the defendant; and promise to the plaintiffs. Tire 5th count was for the same sum lent and advanced, &c. on the 8th of September, 1823, by the intestate, to the use of the defendant; and promise to the intestate.</p> <p>The defendant pleaded non assumpsit and payment with leave, &c.; non assumpsit infra sex annos; actio non accrevit infra sex anuos; and set-off; and issues being joined on these pleas, the case came on for trial on the 7th of October, .1835, before Judge Jones ; when the plaintiff having proved the handwriting of the defendant to the note, gave it in evidence, as follows: ' .</p> <p>“§3500 Philadelphia, June 6th, 1823</p> <p>Ninety days after date, I promise to pay to Conrad Carpenter and William Overington, or order, at the Bank of Germantown, thirty-five hundred dollars, without defalcation, for value received.</p> <p>Robert Kennedy.</p> <p>Credit the drawer,</p> <p>Conrad Carpenter.”</p> <p>Endorsed,</p> <p>William Overington,</p> <p>Conrad Carpenter.</p> <p>The plaintiff then proved that the note was drawn and endorsed for the accommodation of Kennedy, and discounted at the Bank of Germantowm. .It was several times renewed; the last renewal being on the 6th of June, 1823, for ninety days. The note became .due on the 4th of September. Carpenter the intestate died on the 24th of August, J823 ; consequently before the note fell due. It remained in the hands o'f the bank unpaid until Febru ary, 1828. On the 13th of that month, Knorr, one of the plaintiffs, paid one-half of the amount due upon it, and on the 18th, Overington paid the other half. The receipt given by the cashier of the bank to Knorr was as follows:—“ Received of George Knorr, acting administrator to the estate of Conrad Carpenter, deceased, $2212 16, in full of one-half of the principal and interest on a note of Robert Kennedy for $3500, endorsed by Conrad Carpenter and William Overington, and discounted in the Germantown Bank, and regularly protested on the 7th of .September, 1828, which the said Robert Kennedy has failed to pay, and which is in full against the estate of Conrad Carpenter, deceased, as a surety.”</p> <p>The learned Judge, after stating the evidence to the jury, expressed himself in substance as follows</p> <p>“ This action was commenced the 23rd of May, 1832. One of the points made in this case depends upon the act of limitations. In deciding this point, it is important to keep in view the character of the transaction between these parties. The note was for the accommodation of the drawer, as it appears by the evidence. The endorsers were in effect sureties; and as between them and the drawer, they have the rights of other sureties. They might, it is true, have paid the note as soon as it became due, but as between the parties, it was the duty of the drawer to have paid it. And it was the breach of this duty on his part, that continued the liability of the endorsers after the time of payment had elapsed. This action is founded on an implied promise, on the part of the drawer, to pay his endorsers what they should be ultimately obliged to pay for him ; and the action is maintainable on this ground. The endorsers could not sue the defendant for not paying the note, as he was bound to do, without having first paid it themselves. Their cause of action therefore against him did not accrue until they paid the note, which was not till February 1828. If the jury believe the evidence, then this is within six years of suit brought. Another point raised by the defendant, relates to the form of the action. It is said that Mr. Knorr alone could bring this suit, and that he must sue in his personal, not representative character. I think that under the circumstances in evidence, the action may be maintained by the plaintiffs in their representative character. It would be impossible for the plaintiffs to show the ground or reason of this payment by them to the Germantown Bank, without showing the contract of their intestate. It is not like the case of the sale of goods which came to the hands of an administrator, where possession by him is evidence enough of his title to sell them and recover the price. Connected with this point is another position, viz : that the plaintiffs must, if they can sue at all; sue on the note. I think otherwise; the action may be brought upon the implied promise by the defendant to re-pay so piuch money as Carpenter or his estate should be obliged to pay. It is also contended that no action can be brought by the plaintiffs jointly, unless the payment for which they seek to recover was made out of a joint fund. This proposition is involved in the answer to the preceding. The fund from which the note was paid is not a material inquiry in this case. The receipt taken by Mr. Knorr from the Germantown Bank (if believed), shows the character in which he claimed to act; and thereds evidence to the same effect. He went to the bank, and in the character of administrator discharged a liability of his intestate. He had a right to say that he would act in that character and not personally. A party paying money, has the right not only to direct thdapplication of it, but also to say in what character he pays it. His paying it in the character of administrator, repudiates the idea that he was the purchaser of the note for his own purposes. It is also contended in this case, that there is no evidence of the payment of money. It is said that to maintain an action for money paid, laid out and expended, there must be proof of the pajnnent of money; and payment by a check upon a fund deposited in bank is not sufficient. I am of opinion that a payment by a check upon a bank is evidence of a payment in money, to sustain an action for money paid. These remarks embrace all matters of law which have been discussed.”</p> <p>The jury found for the plaintiffs, and the defendant took a writ of error, and assigned several errors in respect to the admission of testimony on the trial; which as they were only slightly pressed on the argument, and were not noticed in the opinion of the court, are omitted. The errors relied upon were principally in the charge of the court.</p>

<p>This case came before the Court again (see ante. p. 9,) on a rule obtained on the 14th of February, by Mr. M‘ Glare on behalf of the defendant, to show cause why the judgments upon the scire facias and a levari facias since issued to Dauphin county, should not be set aside.</p> <p>On the hearing, the circumstances appeared to be as follows.</p> <p>On the 10th day of July, 1789, John Carson, the- defendant’s intestate, gave a mortgage upon certain lands in Dauphin county, to one Frederick Pigou of London, to secure the payment of £3781 5s. 4c?. sterling. Upon this mortgage a scire facias was sued out in the Court of Common Pleas of Dauphin County, to September term, 1793, and this suit was removed by the defendant, into the Supreme Court in Philadelphia, to April Term, 1794, where judgment was entered for the plaintiff by agreement of parties for £2156 7s. 4c?., on the 30th day of December 1797. On the same day this judgment and mortgage were assigned to Thomas Duncan, (the plaintiff’s testator,) who was the brother-in-law of the defendant, John Carson, for a full consideration; and the judgment was. afterwards marked to his use upon the docket of this Court.</p> <p>Nothing further appears on the records of this court, until May, 1834, when the present plaintiff issued a scire facias post mortem, and post annum et diem, upon this judgment, directed to the sheriff of Philadelphia county, returnable to the term of July, 1834, when the sheriff made his return “ nihil habet.” An alias scire facias was then issued to December term, 1834, upon which a similar return was made; and on the 15th day of December, 1834, judgment was entered on motion of C. Chauncey, Esq. for the plaintiff.</p> <p>On the th day of February, 1836, a scire facias post, annum et diem was issued upon this judgment, directed to the sheriff of Philadelphia county, returnable to March term, 1836, which was returned by the sheriff “ nihil habet,” and an alias was issued to July, 1836, upon which the sheriff made a similar return, and on the first day of this term, judgment was entered for the plaintiff on motion, in open' court. On this judgment a levari facias was issued on the third day of February, 1837, to the sheriff of Dauphin county, with a clause stating that it had been suggested by the affidavit of the plaintiff, according to the provisions of the 76th sec. of the act of 16th June, 1836, that there was no property on which the execution could be levied in Philadelphia. Under this execution, the mortgaged premises in Dauphin county, were levied upon by the sheriff and advertised for sale on the 14th of March following.</p> <p>The rule was obtained on the following affidavit of the defendant, viz.</p> <p>“ Before me, a justice of the peace, in and for the county aforesaid, personally came Charles Carson, administrator of John Carson, deceased, who being duly sworn, doth deposé and say, that his father died a number of years since in Dauphin county, and that administration of his estate was granted by the register to this deponent, and to his brother John P. Carson, who is likewise now dead seven or eight years since. Deponent further says, that he has resided constantly in the county of Dauphin, and borough of Harris burgh for the last six years, and that no writ of scire facias, or citation, or notice of any kind has been served on him, or given to him by the sheriff of Philadelphia county, or any other person, of any proceeding being had in tne Supreme Court of Pennsylvania, on the above judgment, which this deponent believes was settled and paid off many years before the death of his father. Deponent further says, that he knows among other things, of Thomas Duncan’s getting 100 acres of land of his father, part of the old farm, which would at one time have sold for $100 an acre; and he believes he got deponent’s mother’s share in her father’s Stephen Duncan’s estate, of which Thomas Duncan was one of the executors. Deponent further says, that the first notice he had of this matter was a few days since, when the sheriff mentioned the fact of his having a writ of execution to this deponent; and further saith not.”</p> <p>Mr. M‘ Clure now contended that the judgment should be set aside, as entered improvidently, and contrary to law, for several reasons. First, The scire facias post mortem, &c. on the original judgment of 1797, was in the name of Thomas Chambers, administrator, &e. without any notice of F. Pigou, the original plaintiff. Second, That this proceeding had been had after the lien of the judgment had expired. By the act of 1799, establishing the Circuit Courts, it is declared that no judgment shall bé a lien upon lands, except in the county where it is given; and by the act of 1705, proceedings by scire facias on a mortgage, must be in- the county where the land lies. But here the proceeding was had in á distant county, and that too more than thirty-five years after the judgment was rendered, when it must, on the face of the record, be presumed to have been satisfied. Cope v. Humphreys, (14 Serg. Raivle, 15.) And by the rules of this court, (.5 Raiole, 364,) ño judgment can be entered on a warrant of attorney more than 20 years old, without notice given to the defendant, if he be within the state of Pennsylvania ; and by the acts of 1798 and 1836, judgments do not continue liens on real estate, longer than five years, unless, renewed. Again, these judgments were erroneous, because the scire facias was not in accordance with the 34th sec. of the act-of 21st Feb. 1834, which requires that the widow and heirs, or devisees of a decedent, shall be made parties to any action by which it is intended to charge the real estate of the decedent. And finally, that the. scire facias in this case was not served in the manner prescribed by the 39th sec. of the act of 13th of June, Í836, directing the service of writs of scire facias to be in the same manner as in cases of summons. As to the execution, if the court had jurisdiction of the case, they might perhaps frame a writ of execution, but they had no jurisdiction, and therefore could not issue execution to Dauphin county; and there was no precedent for a testatum levari facias. On these grounds he contended, the judgments and executions should be set aside, and the plaintiff remitted to his remedy by suit on his bond, or ejectment on his mortgage, if the claim were not really and in fact satisfied.</p> <p>Mr. Bayard and Mr. Sergeant, (with whom was Mr. Chauncey,) for the plaintiff—first showed the facts of the case, which were not on the record, viz:</p> <p>That on the 3rd of February, 1808, John Carson, the defendant’s intestate, by a written instrument of that date, recognised the assignment of the judgment and mortgage to Thomas Duncan, on the 30th December, 1797, on which Thomas Duncan was to give him credit ás of the 14th March, 1798, for one-hundred acres of land, at £1500, ($4000,) and for a horse at £35, ($93 33)—and he, John Carson, agreed that the judgment should be considered as revived, and the mortgage renewed to Thomas Duncan, That in November, 1820, Charles Carson, the present defendant, (his father then being dead,) recognised the existence, of the mortgage in a letter to his uncle, Thomas Duncan, requesting his assistance- in procuring a loan from one of the city banks, upqn this property; and on the 4th. of January, 1821, executed an instrument, acknowledging that Thomas. Duncan had agreed that his mortgage should b,e postponed to the. mortgage then to be given to one of the banks for such loan. That, in 1824, an adjustment of the claim of Judge Duncan, upon John Carson’s estate, under this mortgage, was made by James Duncan, acting on behalf of his brother Thomas, and John M. Foster, Esq. on behalf of Charles Carson, the defendant; when it was agreed by these gentlemen, that after giving credit for 100 acres of land at $4000, and a horse at $93 33, the sum of $5143 04, was due to Thomas Duncan on the 14th of May, 1824. And finally, that a writ of scire facias was sued out upon this mortgage, in the Circuit Court of Dauphin County, to December term, 1828, by the executors of Thomas Duncan, (he being then dead,) against the present defendant, and his late brother, administrators of John Carson, to which they pleaded (among other things,) “ a former recovery,” by the judgment entered in this court in December, 1797; whereupon that suit was discontinued in the year 1833, and the scire facias in this county, issued in 1834, in the name of the present plaintiff, who had been substituted for the executors of Thomas Duncan, who had been regularly discharged. They also exhibited a deed, executed by John Carson, on the 6th of March, 1802, conveying all his wife’s interest in her father’s estate, to James Duncan, for the sum of $2000, acknowledged to be received by him. From these facts, the plaintiff’s counsel said it was evident that the defendant had no merits—as he did not pretend that he had paid any thing himself, but swore that he believed the whole had been paid in his father’s lifetime; which was contradicted, not only by the father’s acknowledgment in 1808, but by his own repeated recognitions since his father’s death; and the suggestions as to the 100 acres of land, and his mother’s share of her father’s estate, were both fully answered by the facts before the court. In applications of this kind, there are < two questions. 1st. Does the party .come forward in time ? 2d. Does he show good cause for setting aside the judgment! In neither of these respects, has the defendant entitled himself to the interference of the court. There was a judgment regularly entered in 1797, on which the defendant never asked to have satisfaction entered. Two years also have elapsed since the judgment, in 1834; during which the defendant might have asked the action of the court; and it is not competent for him to say he did not know of it, for it was his duty to know it; knowing as he did, that there was a judgment here on which a scire facias might be issued, and especially after his plea of “ a former recovery,” to the suit in Dauphin county. But even if he had been in time, the defendant has not shown good cause for setting aside these judgments.' As to merits, he has none clearly, from the facts of the case; and there is no irregularity in the proceedings. The scire facias was properly issued in the name of the present plaintiff) under the provisions of the act of twenty-third of April, 1829, reciting the original judgment in favour of Pigou, and the assignment to Thomas Duncan. Then, as to the act of 1834, referred to;—in the first place, it cannot control this casé, for it did not go into effect until the 1st of October, 1834, whereas the first writ of scire facias was issued in May, and returned to July, 1834; and the alias necessarily conformed to it. But if any part of the act could apply, it would be the 23d sec. which requires a scire facias to issue to the personal representatives, as was done in this case, and not the 34th sec. which applies only to cases of actions originally brought against executors, &c. whereby the land of a decedent is to be charged; and not to the case of a scire facias on a judgment obtained against the decedent, in his lifetime, or upon a mortgage given by him. Neither does the 39th section of the act of the 13th June, 1836, apply to this case. That directs the mode in which a scire facias is to be served when the defendant can be found within the county, but does not affect the practice of entering judgments upon two returns of “ nihil,” which is in fact a dispensation with service, from the necessity of the case; for the record being within the county, the plaintiff cannot follow the defendant to any -other place, and therefore, he, having been once within the jurisdiction of the court, must continue so until the judgment is satisfied. As to the alleged presumption, that the judgment of 1797, was satisfied; in the first place, there is no such presumption, in opposition to the evidence before the court; and in the next place, that judgment never was a lien, but an order of this court, authorising a sale of the land, under the mortgage ; which was, and still continues to be a lien upon the land, recorded in the county where the land lies, and remaining unsatisfied to this day. The writ of execution, though called a testatum levari facias, was in fact, an original levari facias ; and the clause suggesting that there is no property of defendant in this county, was introduced from caution, but does not affect the character of the writ. The court had a right to issue it, in order to carry into effect the judgment' obtained in 1797, which by the act of 1799 remained in this court, and must be executed by its own process.</p>

<p>Aw action was brought in this court to the present term, by William S. Hallowell, Elizabeth Hallowell and William R. Hallowell, minors, suing by their guardian William S. Hallowell, against Stephen Phipps, Charles Phipps, Robinson Phipps, Deborah Phipps and Sarah Phipps; and a case was stated for the opinion of the court, as follows:</p> <p>“ Thomas Phipps, being in his lifetime duly seized of divers parcels of real estate, by his last will and testament dated the 30th of March, 1832, devised various portions thereof to his several children, to hold to them respectively in severalty; and, inter alia, the premises in the declaration described, to his daughter Frances Phipps in fee simple.</p> <p>By codicil dated the 15th of July, 1832, the testator declared that in case of the death of any of his heirs, under age and without issue, their portion should be equally divided amongst the rest of his children.</p> <p>Thomas Phipps died on the 17th of July, 1832, leaving the following children, viz., Stephen, Thomas, Charles, Joseph, Amy since intermarried with W. S. Hallowell, all of full age, and Deborah, Robinson, Sarah and Frances, minors—and two grandchildren, Elizabeth S. and William R. Hallowell, the children of Mary P. his daughter, who was the wife of W. S. Hallowell.</p> <p>The said Mary P. Hallowell died after the execution of the will, and seven days before the execution of the codicil thereto, viz. on the 10th day of July, 1832; and her death was known to Thomas Phipps before his codicil was made.</p> <p>Prances Phipps died on the third of June, 1835, under age, unmarried, and without issue, leaving the above named Stephen, Charles, Robinson, Amy, Deborah; and Sarah, her brothers and sisters, and the said Elizabeth S. and William R. Hallowell, her nephew and niece, her surviving. Her brothers Thomas and Joseph Phipps, had died in February, 1834.</p> <p>The question for the consideration of the court is, whether the said Elizabeth S.. and William R. Hallowell, take any and what estate in the premises, under the said will and codicil. If the court should be of opinion that they take the same estate that their mother would have taken if alive, then judgment to be entered for the plaintiffs and defendants, according to the respective parts and.purparts set forth in the declaration-.</p> <p>If the court are of opinion that the said Elizabeth S. and William R. Hallowell have no interest in the premises, then judgment to be entered in favour of William S. Hallowell and Amy his wife in right of said Amy; and in favour of each of the defendants that they shall respectively take one-sixth part of the premises, and that a writ of partition issue accordingly; and that the said plaintiffs, Elizabeth S. and William R. Hallowell, shall take nothing.—The judgment of the court not to be affected by the form of the pleadings.”</p> <p>The will and codicil referred to in the foregoing case, were as follows.</p> <p>“ Be it remembered, that I Thomas Phipps, of the city of Philaadelphia, do make and publish this my last will and testament, in manner following; that is to say,—</p> <p>Item. I give and bequeath unto my daughter Amy, my house and lot in Eighth street in which I reside; together with all my household goods and kitchen furniture therein contained, together with the insurance thereon, to her heirs and assigns forever.</p> <p>Item. I give unto my son Stephen, in addition to what I advanced him to prefer him in business—the amount advanced him was three thousand dollars—I likewise give and bequeath him my house and lot in Shippen street near Front street. I further give him his note I hold for thirteen hundred dollars, together with a note for five hundred dollars, due me from the board of health; likewise a mortgage of twenty-two hundred dollars on ahouse and lot in Race street, at the corner of the passage to Cherry street meeting. The house and lot in Shippen street, I give to him his heirs and assigns forever. I likewise give unto him a claim of one thousand dollars on lot corner of Arch and Third.</p> <p>Item. I give to my daughter, Mary Hallowell, the wife of William Hallowell, my three houses, commencing at the corner of Coomb’s alley and Second street, adjoining each other, to her and to her heirs forever, subject to the payment of two thousand dollars to my daughter Sarah—likewise give her all the insurance thereon made.</p> <p>Item. I give to my sons Thomas and Charles Phipps, the sum I advanced them some time past, to prefer them in business—say seven thousand dollars, and the house and lot they now occupy; the corner of Arch and Third streets, to them and their heirs and assigns forever, subject to the payment of one thousand dollars to their brother Stephen Phipps.</p> <p>Item. I give unto my son Joseph Phipps, a mortgage I hold on Israel Howell’s property, for six thousand dollars; likewise a loan due from Cherry street meeting, it being money I lent them—say three thousand dollars.</p> <p>Item. I give unto my son Robinson Phipps, bonds and mortgages I hold on the property formerly Grace Hastings, deceased, corner of Second and Market street, for five thousand three hundred and thirty-three dollars thirty-three cents, and a mortgage for one thousand dollars, on land belonging to Joseph Walton, and cash twenty-six hundred and sixty-seven dollars.</p> <p>Item. I give unto my daughter Frances Phipps, my house in Arch below Fourth, to her heirs and assigns forever; likewise a mortgage I hold on John Wall’s property for two thousand dollars; likewise a mortgage I hold on property near Chester, formerly belonging to Philip Stimmel for two thousand dollars.</p> <p>Item. I give to my daughter Debby Phipps, my two story brick house and lot in Shreves’ alley, running back to church property, to her heirs and assigns forever. I give to her an obligation due from directors of the poor for four thousand dollars; likewise four thousand dollars due me from the City of Philadelphia.</p> <p>Item. I give unto my daughter Sarah a certificate of a loan to the Lehigh Coal company for three thousand and one hundred and twenty five dollars; and a certificate of the Spring Garden stock for three thousand dollars; and a lien of two thousand dollars on the property the corner of Coomb’s alley and Second steeet, left my daughter Mary, subject to the payment of two thousand dollars; likewise cash to the amount of eight hundred and seventy-five dollars. , -</p> <p>I nominate and appoint my daughter Amy, my sons Stephen Phipps, Thomas Phipps, Charles Phipps and Joseph Phipps my executrix and executors, to carry this my will into full effect.</p> <p>I likewise nominate them guardians of my children under age, at the same time requesting that Amy shall have the personal care of them all, knowing that her desire is to bring them up in the fear of the Lord.</p> <p>3 mo. 30th, 1832.”</p> <p>“ In the case of the death of any of my heirs under age without issue, their portion to be equally divided amongst the rest of my children.</p> <p>7 mo. 15th, 1832.”</p>

This was a writ of error to the Court of Common Pleas of Lehigh County, to remove the record of an action on the case brought by Benjamin Reigel against John K. Krause, John Redrock, and others, for overflowing his land, and obstructing and impeding the waterwheel of his grist-mill, by erecting a dam across the Lehigh creek, immediately below his property, On the trial before Banks, President, in September 1836, the plaintiff gave in evidence, a deed to him from Henry…

This was a writ of error to the Court of Common Pleas of Le-high County, to remove the record of an action of ejectment brought by Charles Sorber against John Wack,… Held: that where a contract has been so far executed that it would be unjust to refuse to carry the contract into full effect, its terms should be enforced. In those cases the contract must be so far executed that the parties cannot be placed in the situation they were in, before the contract was entered into.

This was a certiorari to the Court of Quarter Sessions of Bucks county, to.remove the proceedings and decree- of the Court, upon exceptions filed to the report of the commissioners appointed to layout a State road in Lehigh and Bucks counties. The case presented to the court for adjudication was as follows.

This was an appeal from a decree of the Orphans’ Coart of Le-high County, in the matter of the distribution of a balance remaining in the hands of the administrator of the estate of Daniel Kramer, deceased.

<p>A lease of lands to A., his executors anil administrators, for the term of twelve months, and so from year to year as long as both parties please, with a covenant not to assign without the special license under seal of the lessor, and a proviso, that if the lessor should determine the lease, the lessee should be reimbursed all reasonable expenses in building, fencing, and improvement upon the premises, the value of the improvements to be ascertained in a certain way ; does not vest any title to the freehold ill the lessee, so as to subject his interest to the lien of a judgment.</p>

<p>CERTIORARI.</p> <p>Under the act of 9 th March, 1771, a settlement was not gained by a purchase of a freehold estate, and a residence thereon for a year, if the pauper, being uncértificated, refused to give security to indemnify the township, &c. on a requisition to that effect, made within a reasonable time after his coming; and such pauper might lawfully be removed from his freehold, into the township from which he came.</p>

<p>Ox the return of a writ of error to the Court of Common Pleas of Northampton county, it appeared that a special action on the case, for deceit, was brought by Philip Messinger and Peter More, against Christian Hagenbuch, to recover damages from the defendant, for falsely and fraudulently deceiving the plaintiffs, by affirming that a certain, tract of land which they agreed to purchase from him, contained 100 acres, when in truth the defendant well knew that the said tract contained but 84 acres and 45 perches, and not any greater quantity of land.</p> <p>The declaration contained four counts. 1. For inducing the plaintiffs to execute a certain article of agreement, by which they agreed to pay to the defendant $9500, in consideration of which the defendant agreed to convey to the said plaintiffs, the said tract in fee simple, as tenants in common. 2. The second count set forth that relying upon the false statements of the defendant, the plaintiffs collected from sundry persons indebted to them, large sums of money to meet their engagements with the defendant, which sums of money afterwards lay idle in their hands. 3. That relying upon the false statements of the defendant, the said Philip Messinger, with the consent of the said Peter More, contracted with a certain Wm. Levers, to demise to him a part of the premises for one year, upon which contract the said Wm. Levers brought suit and recovered $381 damages, by reason of the failure of the said Philip Messinger to comply with the said contract, which failure was owing to the deceitful statements of the defendant. 4. That relying upon the false statements of the defendant, the plaintiff, Philip Messinger, with the consent of Peter More, prepared to remove with his family upon the said premises, and to keep a house of public entertainment, but was hindered therefrom by reason of the false statements of the defendant, and for the space of one year was thrown out of employment, &c.</p> <p>The defendant pleaded not guilty; and the cause came on for trial on the 29th of November, 1836, when the plaintiffs gave in evidence certain articles of agreement, made the 5th day of March, 1832, between the defendant and them, by which the defendant covenanted to convey to them, on or before the 1st day of April, then neprt ensuing, a certain messuage and lot of land “ situate in Upper Nazareth township, in the county of Northampton, adjoining lands of — Kind, John Dech, &c. containing about one hundred acres, strict measure, more or less,” in consideration of which the said Philip Messenger and Peter More agreed to pay to the said Christian Hagenbuch, the sum of $9500, as follows, viz.: $5000 on the 1st of April following, when the deed and possession were to be delivered; and the balance on the 1st of April, 1833.</p> <p>The plaintiffs also proved that at the time the agreement was made, the defendants represented the number of acres to be about 100, “ that there might be a little more or a little less.”</p> <p>The plaintiffs then offered in evidence the books of assessment in Upper Nazareth township, from the year 1826 to 1831, both inclusive, for the purpose of showing that the defendant had returned the number of acres in 1826, 1827, and 1828; as 63, and in 1829, 1830 -and 1831, as 81: to the admission of which documents the defendant objected, but the court overruled the objection, and admitted the evidence.</p> <p>After other testimony had been given to show the actual number of acres, and the knowledge of the defendant, the plaintiffs offered in evidence a lease made on the 24th of March 1832, by Philip Mes-singer to Wm. Levers, of the premises, describing them as the same which the said Philip Messinger recently purchased from Christian Hagenbuch, “ containing about 100 acres,” for the term of one year; together with the record of an action of covenant, brought by William Levers against Philip Messinger, upon the said lease, in which there was a recovery against the said Philip Messinger, of $381. To the admission of which evidence, the defendant’s counsel objected, and the court sustained the objection; to which ,the plaintiffs’ counsel excepted.</p> <p>The plaintiffs then offered Wm. Levers to prove the payment of the damages recovered by him, in consequence of the non-performance of the covenants to deliver possession of the demised premises ; but the court rejected this evidence also, and the plaintiffs’ counsel excepted.</p> <p>On the part of the defendant, the deposition of a certain Eugene Augustus Freeauff, taken under a commission issued to the kingdom of Saxony was offered in evidence. It appeared that a. certain slip of paper, containing merely the following figures and words—</p> <p>“15 acres 124 perches.</p> <p>10 “ 13 “</p> <p>18 “. 72 “ ”</p> <p>had been attached to the commission, and the witness was interrogated as to the handwriting, and for what purpose it was written, &c. In his answer to the interrogatories, he stated that he recognized the handwriting to be his own, but had no recollection of the subject-matter, nor at what time, nor by whose order it was done, &c.</p> <p>The plaintiffs’ counsel objected that the evidence was irrelevant, and the paper referred to not proved, but the court overruled the objection, and¿permitted the deposition- to be read, to which the plaintiffs’ counsel excepted.</p> <p>A verdict having been rendered for the defendant, the plaintiffs took a writ of error, and assigned for error the rejection of the evidence offered by them, and the admission of the deposition offered by the defendant.</p>

<p>On a writ of error to the Court of Common Pleas of Montgomery county, it appeared that two writs of foreign attachment had issued out of that court against Samuel Barnett, on which Henry Barnett and others, executors of the will of Frederick Barnett, deceased, were summoned as garnishees. Judgment having been duly obtained at the third term, a scire facias issued in each suit, against the garnishees, and the following case was stated for the opinion of the court, to be considered as a’special verdict.</p> <p>“ Frederick Barnett, the elder, by his last will and testament, dated the 4th day of March, a* d. 1830, devised his estate as follows : ‘ My will is that all the moneys remaining in my executors’ hands, after such deduction, shall be equally divided to and among all my children, share and share alike; that is to say, to my sons William, Philip, John, Henry, Frederick and Samuel Barndt, and my daughter Catharine, the wife of John Shellenberger, and my daughter Elizabeth, the wife of Daniel Ott, including the moneys I have advanced to some of my children, as will appear, into each share so advanced, to make said shares equal with including said advance, and one equal divided ninth part or share to be equally divided to and among my grandchildren, the children of _my son Andrew Barndt, deceased, including into said share what I have advanced him, my said son Andrew, in his lifetime; but it is my will that the proportionable share which would come to my son Samuel Barndt, shall be retained in the hands of my executors until my said son Samuel shall return to these parts, or shall legally authorise some person to receive the same from my executors, and execute a sufficient release for the same; and incase my son Samuel should not return in his lifetime, or authorise some person to receive the same ■as aforesaid, then my will is-, that his proportionable share shall go and be divided to and among my .other Children, share and share alike.’ Letters testamentary were duly granted to the abovenamed garnishees, the executors therein named; of whom Frederick Barnett, the younger, is now dead. The said executors of Frederick Barnett, the elder, deceased, have made settlement of the estate of their testator $ and the share of Samuel Barnett under said will, is now on deposit in the Bank of Montgomery County, awaiting the •decision of these suits. - ...</p> <p>In this court to November Term, 1831, Nos. 4 and 12, writs of foreign attachment were issued at the suits of the .above plaintiffs respectively, against Samuel Barnett/ thé son of said testator; the record and proceedings in which suits are hereby made a part of this case. v " .</p> <p>If under these proceedings the plaintiffs are entitled to judgment in the above suits against the executors of Frederick Barnett, for the amount of Samuel’s share of the estate attached in their hands, then judgment to be entered accordingly:' the amount to be ascertained by attorneys, or by reference to the prothonotary. If the court shall be of .opinion that the plaintiffs cannot recover, then judgment to be entered for the defendants.”</p> <p>On the 14th of January, 1837, the Court of Common Pleas ordered judgment to be entered for the plaintiff in each of the said actions; to reverse which, this writ of error was sued out</p>

<p>IN' ERROR*</p> <p>A. one of the children of an intestate, took a tract of land of the intestate, under proceedings in partition, at a certain valuation, subject to á lien for the shares of the parties’, and afterwards conveyed the tract to B., as whose property it was sold to C. at sheriff’s sale, on a subsequent judgment, “ subject to all legal incumbrances, by mortgage or otherwise, created prior to the entry of the judgment,” &c. C. conveyed to the defendant, subject to the widow’s third ; the interest thereof payable to her during life, and the principal to be divided among the heirs of the intestate, at her decease. The heirs of the intestate assigned to the plaintiff all their right and title to the widow’s third, as well the arrears of interest as the principal, and the defendant gave a bond to th® plaintiff for the amount so assigned. Held, (1), that the share of A. of the valuation money was extinguished by his becoming the owner of the land upon which it was charged.. (2) That as regarded the arrears of interest due in the lifetime of the widow, the plaintiff was not entitled to recover; the right to the same being in her administrator, and not in her next of kin.</p>

<p>Writ of error to the Court of Common Pleas of Delaware county, to remove the record of an action upon the case brought by Abel Worrall against Joseph Rhoads, to recover damages for obstructing the plaintiff’s right of way from his dwelling-house and farm into the public highway.</p> <p>Several witnesses were examined on the trial, who proved that the plaintiff^ and those under whom he claimed, and others, had for about forty years used a road across the defendant’s land to get to the public highway. The land over which the road passed was unenclosed, and partly woodland. It also appeared that different tracks had been used across the lands indjscriminately, according as individuals wished to go in one direction or another.</p> <p>When the evidence was closed, the plaintiff’s counsel requested the court to charge the jury upon the following points.</p> <p>“ 1. That an adverse enjoyment of a way over another’s land for twenty-one years, is a ground for the jury to presume a grant.</p> <p>2. And that in this case, if the jury believe from the evidence that the plaintiff, or the occupiers of his farm, have used a way uninterruptedly upon and over the land of the defendant for more than twenty-one years, they have a right to presume a grant, whether the ground over which the way has been used be improved or unimproved land.</p> <p>3. That the circumstance of individuáis using different tracks through the woods, and coming out at different points into the public road, does not militate against the plaintiff’s right, if the jury shall believe from the evidence that he has used the right of way from his own land, over the land held by the defendant, for more than twenty-one years before the commencement of this suit.”</p> <p>The court (Darlington, President,) charged the jury upon these points, as follows:</p> <p>“ In answer to the two first propositions, the jury are advised that by analogy -to our act of limitations, an uninterrupted adverse usage and enjoyment of aright of way or other easement over the land of another, will give him a title still to enjoy it; for as such a possession would give him a possessory right to the land itself, it is reasonable that it should also give a right to a minor interest arising out of it. Such a possession authorizes the jury to presume a grant or conveyance of some sort of the right of way; but at the very foundation of such presumption is the difficulty of accounting for such an adverse .possession or enjoyment, without such a grant or conveyance, and this presumption would be strong indeed if the enjoyment of the easement or way were over the improved or valuable fields, 'meadows, gardens, or other enclosed lands of another, and with the appearance of being adverse to his will and injurious to his interest. But this presumption may be weakened or rebutted by proof “ that -although the enjoyment was with the acquiescence of the owner of •the inheritance, it was not adverse, but with the leave of the owner of the soil-,” and I think the presumption of a grant may also be weakened and rebutted by the -nature and situation of the land over which the way is claimed, for I cannot believe that the mere travelling of ■a neighbour or neighbours over one track, or over many and promiscuous ones, over unenclosed commons, or unenclosed woodland •even for twenty-one years or more, ought to be considered as the' •adverse enjoyment of an easement, from which a jury should be -bound to presume a grant. Such an enjoyment of a way could be well accounted for without the necessity of presuming a grant; it may be well referred to tire leave or sufferance of the defendant, or it would be somewhat like mutual trespasses, or a mixed possession of unimproved woodland, where the possession will be adjudged in •him who has the title, and the possession of neither of them adverse. And unless the jury in this casé are bound to presume a grant of this right of way, which in our opinion they are not, the plaintiff has no right to recover.</p> <p>8. As to the third proposition, it is true if the plaintiff shall have ■shown a right to a way over the lands of the defendant by a usage 'of twenty-one years, on the principles above stated, the circumstance ■of individuals using different tracks through the woods, or coming out at different points, does not militate against such right of the ■plaintiff.”</p> <p>■ The jury found for the defendant; whereupon the plaintiff took a 'writ of error, and filed the following reasons:</p> <p>“ 1. The court erred in refusing to charge the law as stated in the 1st and 2d points submitted by the plaintiff’s counsel.</p> <p>2. The court erred in charging the jury that they were not bound :to presume a grant of the right of way.</p> <p>3;- In not charging the jury that the plaintiff was entitled to a way from necessity.</p> <p>4. The court erred in their charge to the jury. They should have charged in favour of. the plaintiff upon the question of usage of the right of way.”</p>

<p>IN' ERROR.</p> <p>The plaintiff conveyed a tract of land to the defendant by deed, which contained the following clause: “ Excepting, nevertheless, the aforesaid premises are subject to a lien or dowership thereon, in favour of E. T. during the term of her natural life, according to the form and effect of an act of assembly,” &e. On the same day the defendant signed an agreement by which he declared that he held himself bound to the plaintiff for the balance of the purchase-money, “ of a certain tract of land purchased of him after paying off all the judgments and demands against the said estate.” The land was after-wards sold by virtue of an execution upon a judgment against a former owner, and purchased at the sheriff’s sale by the defendant. Held, (Í) that the clause in the deed did not control the agreement, and consequently that the defendant was entitled to deduct the amount of the dower of E. T. from the purchase-money; (2) that the purchase-money ought to have been applied by the defendant to pay off the incumbrances in the first instance, and that it was error to charge the jury that unless the sale by the sheriff to the defendant was procured by fraud, ho held by title paramount, and therefore that the consideration of the agreement had failed.</p>

<p>Where lends situate in Dauphin county had been sold by virtue of an execution upon a judgment obtained in 1797, in the Supreme Court in Philadelphia, on a scire facias upon a mortgage, it was held, that the acknowledgment of the sheriff’s deed could not, under the act of 1836, be made before the Supreme Court in the Eastern District, but must, if made in that court, be made at its session in the Middle District.</p>

On a habeas corpus to the keeper of the prison of the county of Philadelphia, to bring up the body of Charles M'Donald, it appeared that the prisoner was in custody under several sentences of the Recorder’s Court of the Northern Liberties, &c. at February term, •1837, viz. one for keeping a tippling house, and five for assaults and batteries.

<p>This was a writ of error to the Court of Common Pleas of Northampton county, to remove the record of an action of debt brought in that court to term 1835, by Samuel Ott, assignee of Peter Ott, who was assignee of Andrew Whitesell, against Robert Lyons.</p> <p>The plaintiff declared oh two bonds, each dated the 26th day of February 1817, given by the defendant to Andrew Whitesell, and assigned by Whitesell, on the 22d of October 1825, to Peter Oft, and by Peter Ott, on the 2d of April 1835; to the plaintiff: the first bond for $600 payable on the 1st of April 1821; and the second for a like sum payable on the 1st- of April 1822. The plea was payment, with leave, &c.</p> <p>On the trial'before Judge Banks, on the th of 1836, the plaintiff gave in evidence' the two bonds, upon each of which were endorsements of interest to the first of April 1834, and on the first bond two receipts for $100 each, on account of principal.</p> <p>The defendant then gave in evidence an article of agreement between Andrew Whitesell and Robert Lyons, dated the 8th of February 1822, reciting Lyons’s indebtedness to Whitesell by five bonds, each conditioned for the payment of $600 annually, on the 1st of April in each year, from 1818 to 1822, which were secured by a mortgage : that a small part only had been paid, and that Whitesell was willing to allow further time for payment of the principal sum on his fulfilling the agreements therein contained, viz.: That the said Robert should pay the said Andrew $100, immediately after the execution of said agreement, and $200 42 being something more than arrears of interest on the 1st day of April 1822, and the sum of $100 on account of the said principal, together with the interest on the whole principal sums on the first day of April in each succeeding year until the whole should be paid: and the said Whitesell agreed that if Lyons should make the payments of the said bonds and mortgage, he would wait for the payment thereof during the times aforesaid: and it was further agreed and understood that the said agreement was not to affect the security of the said mortgage or bonds, and in case the said Robert Lyons should fail to comply with the agreement, it should be at the option of the said Andrew Whitesell to consider the agreement void, and to proceed upon his bond and mortgage. The defendant also gave in evidence an agreement made on the 28th day of January 1826, between Peter Ott and Robert Lyons, as follows: “Whereas J, Peter Ott, having purchased from Andrew Whitesell the bonds and obligations against the within named Robert Lyons, and having and do hereby agree for myself, my heirs, &c. to stand by and fulfil the stipulations and conditions contained in the within memorandum—and it is now fully understood that the said Robert Lyons agrees to pay on the first of April next, $100 with the interest, and so on yearly, and every year $100 with the interest, until the whole obligations are paid.” The defendant then gave in evidence one of the said bonds payable on the 1st of April 1820, for $600, which bond had been assigned to Petfer Ott, and settled with him by the defendant. The defendant then offered in evidence two bonds, dated the 26th of February 1817, from Robert Lyons to Andrew Whitesell; the first payable on the 1st of April 1818, for $600, the second on the 1st of April 1819, for 600 dollars; which bonds had not been assigned to Peter Ott, but were paid by Lyons to Andrew Whitesell before the agreement of the 28 th of January 1826.</p> <p>To the admission of wdiich two bonds with their endorsements in evidence, the plaintiff by his counsel objected.</p> <p>1st. “Because in the notice of special matter given him by the defendant’s counsel, there was no notice that these bonds would be offered in evidence.</p> <p>(The notice of special matter referred to after stating the suit, proceeded as follows :—“ Under the pleading in this case, the defendant will offer in evidence, on the trial thereof, an agreement, whereof the following is a copy; the covenants of which, he avers, have been kept by him.” Then followed copies of the agreements above recited.)</p> <p>2d. “ Because the bonds offered in evidence were paid and settled before the agreement of the 28th, of January 1826, and the defendant could not show anything that was done before that date, for the purpose of affecting said agreement or the bonds now in suit.”</p> <p>The court overruled the objections and admitted the evidence; and the plaintiff’s counsel excepted to the decision.</p> <p>A verdict having been given for the defendant upon the evidence, the plaintiff removed the cause to this court, and assigned for error the admission of the evidence.</p>

<p>This was a writ of error to the Court of Common Pleas of Chester county, where an action of partition had been brought by Mary Ann Way and Joseph Morris Way, minors, by their guardians Jeremiah Barnard, junr., and Maris Taylor, against Mary Ann Gest, Joseph Gest, John B. Gest, Deborah Gest, Elizabeth Gest and Jacob T. Gest, also minors, who appeared by their father John Gest, to obtain partition of a tract of 'land, situate in West Marlborough township, and county of Chester, containing about 67 acres.</p> <p>■ A case was stated in the court below to be considered as in the nature of a special verdict, the facts of which were as follows:</p> <p>On the 5th of April, 1799, Jeremiah Barnard, of the township of West Marlborough, made his last will, containing among other things, the following devises:</p> <p>“ Item. I give and devise to my youngest daughter, Judith, all the lands and premises bounded and described as follows, (describing it,) containing sixty seven acres, together with the appurtenances. Also a small lot or piece of ground, that I bought of Samuel Thornton, situate in East Fallowfield township, bounded by lands of Matthew and George Welch, Caleb Phipps, Richard Barnard, and Doctor John Sturgis, containing four acres and twenty perches of land, with the appurtenances, all which, to be delivered to her at the age of eighteen years, to hold to her from thence after during her natural life, and then after her decease, to her lawful issue, provided that she hath issue who are or shall live to be twenty-one years old, or to have lawful issue, to hold to them their heirs or assigns forever.”</p> <p>“ Item. I give and devise to my second daughter, Mary, all that part of my plantation described and bounded as follows, (describing it,) which said described premises to be delivered to my said daughter Mary, at the age of eighteen years, to hold to her from thence after during her natural life, and then after her decease, to her lawful issue, provided that she hath issue, who are or shall live to be twenty-one years old, or to have lawful issue, to hold to them, their heirs and assigns forever.”</p> <p>“ Item. I give and devise to my eldest daughter, Ann, all the remainder and residue of my plantation, not before devised, containing about sixty-eight acres, with the appurtenances, (with certain exceptions,) all which to be delivered to her, (subject as aforesaid,) when she arrives to the age of eighteen years old, to hold to her from thence after during her natural life, and then after her decease, to her lawful issue, provided that she hath issue who are or shall live to be twenty-one years old, or to have lawful issue, to hold to them, their heirs and assigns forever.”</p> <p>“ Item. It is my will, that if any of my daughters die without lawful issue, or if having issue, and such issue all die in their minority, without leaving lawful issue, then I give the land and premises so to them before allotted, to my other child or children’s lawful issue, as tenants in common, to hold to them, their heirs and assigns forever.”</p> <p>On the 24th of August, 1799, Judith, the youngest daughter, died without issue.</p> <p>On the 26th of August, 1799, the testator executed a codicil, not altering the will in any essential particular.</p> <p>On the 28th of August, 1799, the testator, Jeremiah Barnard, died.</p> <p>At the time of his death, his two daughter’s Ann and Mary were under age. Mary afterwards intermarried with Joseph Way, on the- day of October, 1812, and had two children, Mary Ann Way, born in 1813, and Joseph Morris Way born in August, 1815, which children are the plaintiffs in this suit. Ann afterwards intermarried with John Gest, on the 15th day of December, 1819, and had seven children, viz. Mary Ann Gest, Joseph Gest, John B. Gest, Deborah Gest, Jeremiah Gest, (who died unmarried and without issue, before bringing this suit,) Elizabeth Gest and Jacob T. Gest, which children (with the exception of Jeremiah Gest deceased,) are the defendants in this cause. The said John Gest and Ann his wife, survived the said Jeremiah Gest, (deceased,) and both they and the said Mary are still in full life; the said Ann being about thirty-seven years old, and the said Mary Way being.about thirty-five years old.</p> <p>The part allotted to Judith in the •'will of the testator, is described at this day as follows, viz.—“ A plantation and tract of land, situate in West Marlborough township, and county of Chester, bounded by lands of Jeremiah Barnard, the heirs of Dr. Wm. F. Mitchell, Job Lamborn, and others, containing sixty-seven acres, be the same more or less, with the appurtenances,”—which premises the plaintiffs allege they hold as tenants in common with the defendants, and claim to have partition of the same,- and one half thereof to be allotted to them, viz. one fourth thereof to each of them.</p> <p>If the court shall be of opinion with the plaintiffs, judgment to be entered that partition be made accordingly to the declaration, with costs; if with the defendants, judgment to be entered for defendant with costs.</p> <p>The court below gave judgment for the plaintiffs, that partition be made between the parties, &c. as demanded; whereupon the defendants sued out this writ of error.</p>

<p>IN ERROR.</p> <p>1. A pardon by the President of the United States, reciting that J. B. was convicted at a Circuit Court of the United States, of passing a counterfeit bank note, and sentenced to three years’ imprisonment, and concluding, “ I doboreby remit unto him, the said J. B. the remainder of the said sentence, and order him to be liberated from further imprisonment,-on payment of the costs,” was held ;to restore the competency of J. B. as a witness.</p> <p>2. In ejectment by a person claiming under a deed from Nathaniel S., who was alleged to have purchased the premises at a sheriff’s sale, it was held that parol evidence was not admissible to show, that the acknowledgment by the sheriff was originally of a deed to Nathaniel S., and that afterwards the prothonotary’s clerk, at the instance of Chirles S. and by collusion with him, erased the name of Nathaniel S., and substituted that of Charles S.; the defendant claiming by deed from Charles S.</p>

<p>The president, managers and company of the Schuylkill Navigation Company brought an action on the case in this court against John Moore, to recover damages for drawing a greater quantity of water from their canal than, it was alleged by them, he was entitled to under his grant.</p> <p>The plaintiffs were incorporated by the act of 8th March 1815, with authority to use the water of the river Schuylkill for the purposes of navigation, and to grant out the water power for manufacturing purposes. Under this authority numerous grants were made.</p> <p>By indenture of bargain and sale, dated the 1st of February 1830, between the Schuylkill Navigation Company and John Moore, reciting that a certain Mark Richards had agreed with the company on the 3d of November 1827, for the purchase of a lot of ground thereinafter described at forty dollars per acre, and on the 25th of January 1828, for the purchase of 100 inches of water power at Flat-rock canal at the annual rent of six dollars per inch, to commence that day and payable half-yearly; and on the 13 th of March 1828, for the purchase of the further quantity of 200 inches of water power at Flat-rock canal at six dollars per inch ; the rent of 100 inches to commence 1st of March 1829, and 100 inches 1st of June 1829; which water power was agreed to be granted tó the said Mark Richards on the usual conditions and subject to the former grants of water power: And reciting further that the. said Mark Richards and wife, on the 4th of January 1830, granted to the said John Moore the lot and the aforesaid water power of 300 inches of water, to be drawn from the Flat-rock canal for the use of mills or 'any mill work except for making gun-powder or for sawing timber logs or lumber, together with the appurtenances: And that the said Mark Richards did therein desire and request the Schuylkill Navigation Company to make the conveyance and grant of the said lot and water power on the terms and conditions of their sale to him—the whole rent 1840 dollars per annum being paid up to the 1st of December 1829: The plaintiffs then conveyed the lot; describing it by courses and distances, &c. proceeding as follows:—“ Together with the right and privilege of keeping the passage now cut from the said canal within the said lines of the above described lot continued to the said canal through the western bank of said canal, which bank is 20 feet wide and is intended to be left open and used as a towing path and road along the western bank of the said canal; and of the rail-way now made through the land of the said company from the said passage so cut as aforesaid to the said public road, and thence across the said public road as far as lies in the power of the said company as the owners of the soil of the said road to grant the right of keeping the said, raceway across the said road to the above described lot of ground; and of placing in the passage or opening so cut as aforesaid by him within the said .limits, a forebay or tunnel of good and substantial construction, whereby the water may be drawn from the said canal to the above described lot of ground for the use of mills or any other water works now erected, or hereafter to be erected on the said lot, except for making gun-powder or for sawing any timber logs or lumber, which are hereby absolutely prohibited; which forebay or tunnel shall have sliding gates placed therein so that the whole water may be, as occasion requires, entirely stopped from entering into it, and the same shall be' so arched over or covered as to prevent it impeding in any degree the said road or towing path: And together with the privilege of drawing from the said canal through the said forebay or tunnel from time to time and at all times hereafter forever, so much water as can pass through two metallic apertures, one of fifty square inches and the other of 250 square inches respectively, under a head of three feet to be measured from the middle of each of the said apertures, respectively to the face of the water of the said canal opposite to the above described lot of ground, when the same is as near as may be on a level with the late top before the same was recently changed and raised, of the present great dank erected by the said company across the said river at the head of the said canal, together with the privilege of building a bridge across the said canal,” &c. “ To have and to hold the said described lot of ground, hereditaments and premises, and the right of drawing from the said canal the quantity of 300 square inches of water in manner aforesaid under a three feet head, with the appurtenances and privileges hereinbefore and and hereinafter mentioned, under and subject to all the restrictions and limitations in these presents mentioned and contained.” Yielding and paying the said rent, &e: .The.,deed contained a covenant by Moore to pay the taxes and the .ren.t—erect and support and maintain the forebay and tunnel and keep in repair the side banks of the canal—not to encumber the road—and to erect- at his own expense and forever support in' good order the two metallic apertures, one of 50 square inches and the other of 250 square inches, through which the said 300 inches of water under three feet head were to pass—and to prevent all leakages, &c.: and it was provided that it should be lawful for the grantors and their agents to enter on the premises for the purpose of examining the fixtures and the placing of such metallic apertures.and ascertaining their size and whether any leaks existed in the premises which might occasion more water to' be drawn from the said canal than was thereby granted; and if they found any such defects or leaks, or on due notice the same were not forthwith removed and remedied, it should be lawful to shut down the sliding gates until such defects and leaks should be removed .and 'remedied without any abatement of rent. Or it should be lawful for the company to make repairs at their, expense and distrain for the same as rent. The grantee covenanted to open the.gate during heavy rains to prevent overflowing; that he would hot manufacture gun-p'owder, or saw timber under a forfeiture of the premises and stoppage of water and ré-entry. In case of any break of the dam, the company was to repair within 30 days, or the rent should be suspended, but no other damage. If the water of the dam in the opinion of the company should be insufficient to furnish the quantity necessary for navigation and to answer their sales, they retained the right to enter on the premises, and withhold the 200 inches of water from passing through the metallic aperture of 250.square inches so long and until the water which might be furnished by the great dam, should in the opinion of the company be sufficient to answer the purposes of the navigation.</p> <p>Previously to this conveyance to the defendant, Mark Richards the grantee, had made certain alterations in or additions to the aperture hereafter described, which increased the flow of water into the forebay: and in a bond taken by him from the defendant, it was stipulated that any action which might be brought against him by the 'Schuylkill Navigation Company, should be defended by Richards; and if it should be decided that the defendant had no right to draw the water in the manner then practised,The obligation should become void, &c.</p> <p>On the trial before Gibsost, C. J., at a Court of Nisi Prius, held in Philadelphia, the plaintiffs after reading the deed to the defendant, introduced the following testimony :</p> <p>Frederick Erdman. “We were directed to examine the mills by the company. This memorandum was made by Mr. Gill, from minutes he made on the ground; I don’t recollect the date; we were directed, and made the observations at the time when the mills would best permit; we examined the mills from one end to the other, not exactly in regular rotation, but as might suit the mills; at the north mill was a rectangular aperture longer than it was high ; I don’t recollect the dimensions ; I have no memorandum of the square one, more than the report made at the time. As to the other mill—the south one has what they called a conical tube; the aperture was circular; it opened into the forebay; the conical tube was inserted into the forebay; the funnel part was all in the fore-bay ; it projected some distance inside, and the tube some distance outside ; the length of the tube was about eight feet; I should suppose about one-eighth of it inside the forebay, and about seven-eighths outside; I don’t know that that dimension was correctly taken; it is merely from memory. I was present at the experiments that were made on the 6th of November, 1830, on the flow of water through an aperture and through a tube; something like that exhibited; several persons were present; 1 was requested by Mr. Jos. S. Lewis to prepare an iron plate to suit the smallest diameter of the conical tube, which, on measurement, I found to be seven and twenty-five-one hundredth inches; likewise a rectangular plate of twenty-five inches long and two inches high; both of which plates were inserted into the forebay that the conical tube was inserted in. As regards the time, I think this was done the day before the experiment was made, on the 6th ; the water was drawn through the conical tube, I think first; if my memory serves me right, there was a nail placed exactly one foot below the surface of the water; the forebay was then filled, and the gate drawn, to permit the water to pass through the conical tube; the water was exhausted; drawn' down to the nail; that is, one foot, in one minute and twenty-eight seconds; the forebay was filled again, and the water let through the plain circular plate ; the time occupied in drawing down the same distance, was four minutes and eighteen seconds; the forebay was filled again, and drawn through the rectangular aperture of twenty-five inches long and two inches high; the time occupied in drawing it the same distance as the other experiments, was two minutes and forty-six seconds; the aperture at the north mill, I think was metallic in all its parts. Cross-examined—I am not regularly in the employ of the company; I have been employed occasionally in some part of their works, and was, at that time, employed to take their measurement; I think we gave notice to Dr. Moore; we called there, and made the measurement, in rotation with the rest of the mills; I don’t know that they had any prior notice—not from me; I don’t recollect that any was given; I don’t recollect exactly the thickness of the iron plate—may be' a quarter of an inch; not measured,-1 believe, as to thickness; I did not take .the thickness of the rectangular plate ; the thickness of the circular .plate was about 'a quarter of an inch; I did not measure it; as near as I can recollect from the view of it; I made no note of it; ~I did not observe the vena contracta, when the water came through the circular plate; I did not look for it; my attention was occupied in watching the time by a stop-watch, and the nail ; the experiments were tried once at each opening at each aperture; my attention was always drawn to .the stop-watch and the nail; the subject was then new to me ; I had-never seen any such experiments before; I have not read exactly of experiments of that kind'; but I have of drawing water though a conical tube; I don’t recollect the author; it was a work treating of hydraulics ; an elementary work; I think it is quite likely I saw it in Gregory; I am not positive; it was seven or eight years ago probably; I never read any of the experiments of Venturi;' I never saw any of them put in practice; I never worked, at Wilson’s mill on the canal; I have been there and seen the forebay; it is a square rectangular opening; the first mill on Manpyunk canal; the passage on each side is rectangular above and below the aperture; the last time I saw it was at the time we took the measurement; that was the only time I recollect of; I think the smallest part of the conical tube was at the place of its passing through the plank into the forebay; that was seven and twenty-five one hundredth inches, as near as we could measure the diameter; that gives a little rising forty-one square inches; it was the same size as the circular plate.”</p> <p>Edward H. Gill. “ I was present at the measurement of the different apertures; the measurement was in March, 1831,1 believe; I can’t give the opening at Dr. ^foore’s mill, where it is rectangular; this is the measurement; north mill, nine feet six and a half by three inches; the aperture, that is three hundred and forty-three and a half square inches; the south .ipill is a circular aperture of seven and a quarter inches in diameter, equal ■ to forty-one and twenty-eight and a quarter one hundredths square inches; carried out here to a great many places of decimals ; there was a conical tube at that mill; this is the form of it ;■ the dimensions were given by Mr. Erdman to me; it was not measured while I was there, except on thd*smallest part; these aré ’the dimensions given me by Mr. Erdman ; we examined) I believe, all the other mills at Manayunk; in the other mills, the water was generally passed through a rectangular opening'; we examined Smick & Gorgas’s; Lea, Newman & Co.’s; Moses Key’s; William Rowland’s; Samuel Eckstein’s, (paper mill); Charles Y. Hagner’s; Thomas B. Darragh’s; Andrew Adams’s; Joseph Ripka’s; Thomas M‘Dowell’s ; John Keating’s John Rush’s; T. & S. Wagner’s; I was occasionally in the service of the Schuylkill Navigation Company at that time; I am now in their service as an engineer; generally retained for the company.” Cross-examined. “ I believe I made out and served no notice on defendant; served no written notice ; I was not present at the experiments; we had the water drawn'off to examine the rectangular opening; we requested it to be done; I saw the water’ drawn through the opening; I did not measure the size of the water coming through; I don’t recollect whether I measured the opening myself; Mr. Erdman and one of his men, and myself, were there; I don’t know who measured; it was measured with calipers ; Mr. Erdman furnished them; we took the size with the calipers, and applied it to a rule; I don’t recollect the 'size of the calipers; they might extend a foot; may be not so much;' we had not to apply them more than once, I bhlieve; I can’t tell the head of the water at that time in the forebay, nor the state of the water in the river; I have no recollection of remarking that the aperture was larger than it ought to be.” Re-examined,. “ I did not know at that time what the aperture ought to be; I think I did when I made my report; I will not be confident; I was emploj'ed mei-ely to measure and ascertain how much the apertures wei-e below the level of the water-line in the canal; what head there was; I put in marks above the apertures at this mill, so that it might be measured down from these marks to the water; we drove nails in the lintels over the apertures, and then measured up from the apertures to those nails; the nail was not driven where the water ought to be, but a memorandum made of the measurement from the nail of the distance ; then when the water was let in from the forebay, measuring from the nails'to the surface of the water, and deducting that from former measurement, was the head of water on- the aperture; I don’t recollect wdiether the water was then-above the proper line; it always has been running over the waste weir; when I made a measurement, we only used the calipers to take the height; not the length; we measured the length generally with a rule; the aperture was very long; we had two pieces of wood prepared for the purpose, and passed them; placing them on one another, and marked on both where each came to; my remark of applying the calipers but once, was intended to apply exclusively to the circular opening of seven and a quarter inches; the circular aperture I saw measured ; the measurement of fourteen andi twenty-five one hundredth inches, was taken by Mr. Erdman prior to that time; we took but one diameter of the circular aperture; 1 calculated the number of inches in the rectangular opening; I believe it came out exactly three hundred and forty-three and a half, without any fraction ; I never studied hydraulics or hydrostatics.”</p> <p>Mr. Erdman, being recalled, said: “ I measured the pipe, and gave them accurately to Mr. Gill; I believed them.to be so; as accurate as I could give them ; the calipers were mine; they were said to be steel; about from eight to ten inches would be the extent of them; we had a two-foot rule; an engineering rule.”</p> <p>Thomas Gilpin. “ I have been thirty years conversant with waterpower, chiefly at Brandywine, but I have also been acquainted with many of the mills and water-powers in this district and in Maryland ; I have seen the mills in the eastern states; in 1828,1 passed through the eastern states, with a view of seeing the different water powers; and the manner in which water was applied and delivered at many of the mills in New England; I have had several mills in Maryland and on the Brandywine; they are'within three or four miles of Wilmington; twenty-five mills on the Brandywine; in all cases that I have been acquainted with or examined, the water has flowed to the water-wheel through rectangular openings, which have been made larger or smaller, to afford the necessary quantity of water; I know what a pitch-back wheel is; I have seen them frequently; the water is delivered through the. same description of aperture; wherever it is desiiable to have a water-wheel larger or smaller than the water-wheel.which is to be supplied, the wheel must be a pitch-back, because the water goes on the back of the wheel; it is not on the front; it is loading the wheel, the advantage of being delivered so as to revolve against the current; I never saw a tube-wheel; very little acquainted with them; water is used to very little advantage in tube-mills; I never thought them worth attending to.” Cross-examined. “ The water passes into the natural channel again at Brandywine; all the channel is used for a mile; the waterpower at one mill has three feet water moré than we can use; the mill above up never pools water on us; I am not acquainted with the water at the falls of Passaick at all; I do not know of any general custom or manner as to delivering water by the inch; I know nothing of it; I have known the theory of the delivery of water, three or four—within ten years; my knowledge was derived principally from books; I never made any experiments myself; I don’t recollect what work; I am not acquainted with the theory of the contracted vein at all.”</p> <p>, James P. Espy. “ I did experiment in a small way several years; 5 or 6 years ago; I mean beginning then; the last were in the fall of 1830, in a large way, connected with the Franklin Institute; was a member of the committee, hut have .not the notes; the last experiments were made after the patent, on the patent tube; a great variety of experiments were made; Mi% Richards paid the expense of this patent; I am not certain how Mr. Young was connected with Mr. Richards; I was at one experiment at the mill; I think not a rolling mill; a spinning mill I think; Mr. Young made the hole in the forebay; I was induced to believe that Mr. Venturi had come very near the best mode of delivering the greatest quantity of water, and I wanted to verify his experiments ; Mr. Richards had the right of using the patent on his own mill; I had other views besides verifying Venturi’s experiments; I wished to try other fluids besides water, at least mercury; which I did, and found a very nearly similar result; also to ascertain whether this increased discharge was connected in any way with the atmospheric pressure. I was unable to satisfy myself on that point with my own small experiments, and I entered more freely into those of' the Franklin Institute, which had a height of 50 feet. I never thought of capillary attraction, but I did of the attraction of cohesion; I thought the atmosphere had something to do with, and the air getting in, certainly reduces the velocity. Mr. Richards told me the company would not permit him to use a hole higher than three feet below the forebay; he wanted to use it a foot higher up; all other things being equal, the higher up, the greater the force; it occurred to me, that if the same quantity could be taken at the height of one foot, and carried and delivered at the wheel, two feet higher, it would increase the power, and in that way I considered it as a new invention, and I was entitled to a patent; it would increase it in the way of delivering it higher up; it would enable us to pass a great deal more under a head of one foot, than without this adjutage; three times I believe as much as six; but without my notes I cannot tell exactly. Suppose the head and fall. Take a head of one foot; just half as much will flow out as four; I found the increase was not as much under a head of one as three; under three, it gave as much as a twenty-five feet head or flow; the head of one foot; it goes on increasing to about three feet and a half or four feet, at which is .the maximum efiect of the tube; under that will flow as much as flows under a simple atmosphere of thirty feet plus the heighth of three and a half or four feet; it ceases to have the great efiect after a considerable extent; above three and a half feet you have the thirty-three feet of the atmosphere; you have very near fifty-three feet.” Cross-examined; “ I meant the pressure of the atmosphere on the reservoir, and the removal of it at the end of the tube; we had some tubes quite too wide, and into these we thrust a stick and it resisted the efiefct; the atmosphere presses at the rate of fifteen pounds the square inch; the more you flare the tube until it reaches such a width that it ceases to flow, it increased the quantity; the patent tube gave within a fraction of three times the mere opening; a head of three feet amounted to as much as twenty-seven plus three; extending the tube beyond the opening and widening it, increases the quantity; the first time my attention was ever particularly turned to the contracted vein, was, about 1817; Dr. Patterson said the reason of the increased flow from'Venturi’s tubes was not known; I heard him lecture on the subject in 1816 or 1817; he lectured both on the contracted vein and adjutages ; the former he explained; referred to Venturi’s lectures at the university; I imagined that I was the first that ever invented making the water come to the wheel higher up ; I did not think I was the inventor of increasing the flow of water through conical tubes, as I think the patent will show; I had been long acquainted with Venturi’s 'adjutages, and imagined every body else was that had any knowledge on the subject; I read the work in various periodicals, and among the rest, the Edinburgh Encyclopedia; Dr. Robertson- says expressly the cause is not understood ; if there is the smallest particle of air gets in near the contracted vein, it destroys the flow; Venturi does say it is connected in some way with the atmosphere, that is, the inner discharge. Mr. R. never has availed himself of any sales under this patent that I know of. The tubes were fastened together with joints, and it was extremely difficult to avoid the air; the material was tin and some copper; sometimes fastened them with tallow, and afterwards soldered.”</p> <p>On the part of the defendant, the following testimony was given:</p> <p>Walter R. Johnson. “ The aperture is eight hundred and sixty-one one-thousandths of an inch; the water at the distance of one quarter of an inch is seven hundred and fortyriwo one-thousandths; I have made experiments on a smaller scale, and have satisfactorily convinced myself that there is that contraction of the vein; it is stated by Newton, that the proportion is about sixty-six one hundredths between the vein and the orifice ; the theoretical calculation being one hundred, the actual discharge is sixty-two ; the contraction is thirty-eighty one hundredths, the difference; I made experiments on the flow of water, through apertures and adjutages; I think in the winter of 1829-30; the law of adjutages varies with their form. If we apply an adjutage externally to the vessel, that w'hich is expanded outwards wall occasion the greatest flow; something depends upon the length too; the relation between the length and the diameter is given in the books; I think nine to four is given by Bossuet, two-tenths at the smallest .opening internally; the smallest diameter is the one 1 refer to ; the length is nine-fourths of the smaller diameter; I think the highest result 1 could obtain with an apparatus not perfect; I obtained a result of one, eighty-seven hundredths to one; these experiments were made by opening two openings in a circular vessel, (we call a plain aperture that which has technically speaking, no adjutage,) and another made at the same horizontal level, to which the adjutages more than one were applied ; the mode of making the experiment was to apply two vessels at the same instant, and withdraw them at the same instant, and measure the quantity which has flowed into each vessel; I think that Venturi states that the cylindrical adjutage of the same size with the plaiii aperture, gives an increase; that apertures flaring outwards, makes it more than double what theory would have given to the plain aperture; my adjutage was in all eases horizontal, but I conceive that immaterial; I think it would make no difference that the adjutage was inclined downwards; it would take off no more of the pressure of the atmosphere ; the water moves more slowly when it comes out of a bell-mouthed adjutage; I believe there was an investigation by the committee on water power of the Franklin Institute on water wheels ; I was not on that committee ; the experiments on adjutages were as I understand subsequent; I did, not see the experiments ; an extensive series of experiments was made on adjutages; S. V. Merrick was chairman of that committee appointed to institute a series of experiments to ascertain 'the value of water power; Mr. Espy, Reeves, Professor Bache, was added to the committee afterwards ; I never compared their results with my own. I can’t give the date of the experiments ; I think it was 1831; not certain; it occupied considerable time; I was led to suppose they lasted several weeks ; if made of the form of the vena contracta, and of the length, the funnel or cap would make no difference in the discharge of water; both theory and experiment give that result.” ■</p> <p>Richard Rambo. “ I am a mill-wright by trade ; I have done millwrighting at Manayunk a good deal, at one time or other; first was in 1823,1 guess; before Manayunk was built, I repaired, altered Captain Power’s. It was from a grant of this canal pitch back wheel; I always considered that there was an advantage in making the penstock in that shape; it lets down the water more together; it is a little like Towers’ and more like Jerome Keating’s which we commenced in 1825, and finished in 1826; both of them are inclined in ■the same; all are that I built; I built one for Mr. Brooks; I believe it was in 1824; it was funnel-shaped too ; pretty much like this; I made one for Mr. Darrach; his w7as more like an overshot; not so much funnel-shape; it has some; I made his, I guess, about 1825 or 6. I have made w7hat we call tube wheels; there is an upright shaft putin it to drive back saw carnages; only used for saw-mills or some like affair; made one on Chester creek, a good many years ago; 1827 before; water is delivered on a shoot or funnel; it is tight; it is taken out of the forebay or wherever it may suit; twelve oneway, 15 the other; the largest end is where it receives the water, and the smallest where it delivers it out at the wheel; mostly make them tapering; I don’t know whether it was any great advantage ; it was the form used any how, for tube wheels; used as long as I can remember; I was three or four years ago, four and better, at Manayunk; the water was too low sometimes ; I had nothing to do with it; when we were building, working at Mr. Keating’s, Mr. Keating called me out to look at the canal; I did look at it, and it was down.” Cross-examined.—“ I believe Mr. Towers held the water under the Navigation Company; I understood so; these tube wheels are sometimes used for grinding corn; for flour mills it used to be; 1 examined Mr. Mark Richards’s mill in 1826; I went to see whether the apertures were of the right size where the water was let on; all the apertures I examined there, were made by straight lines; I can’t recollect whether metallic on every side or not; I reported to the company as it was at the time, according to the fact, whether metallic or not, as it was, as near as I could; I fixed some of the apertures myself; I examined all; those that were fixed by others; some were not ready; Gorgas’ had not theirs on, and I reported it as it was, those that had and had not; I know Mr. Young; have seen him frequently; he used to be engaged at Mark Richards’s factory; I don’t know whether he is now or not; water had sunk in the canal; boats going through, had drawn it down below the usual height; rolling mill, was I think about building when I went away; spring of 1829; I can’t tell whether it was built or not; they -were talking about building it any how. The day I spoke of was owing to the number of boats going through ; Keating’s opening is at right lines; square at the ends, as well as at the top and bottom.”</p> <p>Lewis Oust. “I am employed by the watering committee of Philadelphia; employed since commencement of iron pipes; we have laid funnel-mouthed pipes at the reservoir; the first main that was laid, about 14 years ago. Mr. Joseph S. Lewis, (President of the Schuylkill Navigation Company,) was chairman of the watering committee at that time. The funnel-mouth was 22 inches at the small end, which was the size of the pipe; the other 30 inches, which was in the reservoir; it was done so that the water would give a full supply; if it was all of one size, there would be a vacany; it has been in use ever since; when the branches-off are made from the main pipe in the streets, wherein they are made, they are funnel-mouthed, and twice as large as the main; so as to receive a full body of water ; there is one at every street in the city where the iron pipes are laid; I should suppose the difference in the quantity of water is about one-eighth.” Cross-examined. “ These pipes were laid under the direction of F. Graff; the hole of the muzzle was inside the reservoir; the hole of the large part; the same as you put a funnel in a bottle; it swells more sideways than up and down; it also swells up and down; some of the branches are small and won’t admit of enlarging up and down, and are flat; they are made more large ini the width on that account.”</p> <p>Walter R. Johnson being re-called, stated the results of experiments made on the preceding day. “ The first experiment was that on the adjutages. The water in the forebáy was drawn down from one mark to the other; two marks being placed in the forebay to mark the beginning and end of the experiment; in the first experiment, it was drawn from one to the other, in fifty-six seconds with the adjutages. By the second experiment, in fifty-three seconds. In this experiment there was a little defect in the descent of the water, as it was waving, &c. The third experiment was made in fifty-five and three-quarter seconds. The second series of experiments was with the circular orifice, which I found to be seven and twenty-five-one-hundredth inches in diameter. In the first experiment, the time was one hundred and thirty-four and three-quarter seconds. This aperture or orifice I presume to be placed at the same level with that in the adjutage. I was apprehensive that it (the flow) was arrested too soon, but I don’t know that I could have varied it one second. The second experiment was made in one hundred and thirty-eight and three-quarter seconds; and the third was made in one hundred and forty and one-half seconds. The third series was to ascertain the effect of the contracted vein. The contracted vein was five and seven-eighth inches in diameter to the size of the orifice, which was seven and one-quarter inches. The area of the contracted vein will be twenty-seven and one hundred and eighty-eight-one-thousandth square inches; the area of the orifice itself is forty-one and two hundred and eighty-two-thousandth square inches. I calculated the proportions between the areas—the one is sixty-five per cent, of the other. Newton I thought before, was sixty-six; but it is the square root; we tried it several times by the calipers. The fourth series was on a rectangular opening twenty-five and oné-tenth in length, by two inches in breadth. The largest was horizontal; same level as the circular orifice. I found by the first experiment, it gave one hundred and six and one-half seconds the flow; the second experiment gave one hundred and five and three-quarter seconds the flow. I made a comparison between the quantity that flowed in these two last experiments, taking their mean time of one hundred and six and three hundred and thirty-six one-thousandth seconds. I compared them with the time found by the first series, with the adjutages actually employed at the mill. The mean of them being fifty-four and eleven-twelfth seconds. I called it fifty-five, and compared it with the time of the rectangular opening, and found that the quantity flowing through the adjutage in a given time was one and nine thousand three hundred and thirty-four ten-thousandths. I compared the smallest of the experiments, and found it showing that it is about double through the adjutage than through the rectangular opening; the rectangular opening contains five and two-tenth square inches. The rectangular opening plain like this will give a greater quantity of water than the circular opening. The flow of liquids is not as the heights, but as the square root of the heights. The rectangular being placed vertically, would give a different result. We can’t compare well two together of different form. The stream was smaller, out of the rectangular opening than the orifice itself.”</p> <p>Besides this parol testimony, the plaintiffs gave in evidence 23 •deeds, most of which bore date previously to the grant to the defendant, containing clauses similar to that in the defendant’s deed; and they alleged that the ajutages had not been used at any of the other mills, at Manayunk. The defendant also gave in evidence a letter addressed to Mr. J. S. Lewis, as Chairman of the Watering Committee of Philadelphia, dated in the year 1819, in which the effects of the funnel-mouth were stated and discussed. He also exhibited various works on hydraulics and hydronamics, showing that the mode of drawing water complained of, had been known and taught for many years.</p> <p>The learned judge who tried the cause, reserved for the court in bank, the construction of the terms of the grant; but he charged the jury that the turning point of the cause-before them was, whether the preceding purchasers of similar privileges had omitted to use the adjutages, because it suited their convenience to receive the water without them, in which case it would have little or no effect ; or whether these other purchasers took the water in the way they did, because they considered that to be the true meaning of the contract. In the latter case, he.instructed the jury that the defendant would be bound by this practical construction, and the verdict ought to be against him.</p> <p>The jury having found a verdict for the plaintiff, the defendant moved for a new trial, and filed the following reasons :</p> <p>1. “ Because the privilege of drawing water is limited only by the size of the aperture and the head of water; and the true' construction of the deed authorized the use of the adjutages.</p> <p>2. Because the power of procuring a supply of water by means of adjutages, was an extrinsic circumstance, which entered into and formed part of the contract.</p> <p>3. Because the acts of the other purchasers of water privileges at Manayunk, could not affect the rights or vary the contract of the defendant.</p> <p>4. Because the jury should have been instructed that if the state of the improvement in the mechanic arts was such as to render the delivery of water as practised by the defendant, a matter of ascertained principle, the exercise of that knowledge was lawful and proper.</p> <p>5. Because there was no concealment, fraud or misrepresentation, on the part of the defendant.</p> <p>6. Because at the time of executing the grant, the manner of receiving the water contemplated by the defendant, was known to the plaintiffs, and no restriction was introduced into the deed.</p> <p>7. Because the attention of the jury was drawn to a wrong point, when it was especially, called ’ to the exercise of the privileges granted by the plaintiffs to the owners of mills at Manayunk.</p> <p>8. Because there was no evidence of usage in favour of the construction of the terms of the grant, as the jury has construed them by their verdict.</p> <p>9. Because the verdict is against the weight of the evidence.</p> <p>10. Because the learned judge erred, in not telling the jury that upon the face of the deed, the defendant had a right to draw the water in the way he did. The jury in their consideration of the extrinsic circumstances had a right to be informed, and to know that according to the legal construction of the deed per se, the defendant had a right to draw the water in the way he claimed to draw it.</p> <p>11. Because the verdict is for the plaintiff when it should have been for the defendant.”</p>

<p>APPEAL.</p> <p>Where a guardian, about nine -months after his ward came of age, stated his account with him and produced his vouchers, and the account with the vouchers was examined by A. in the presence of both parties, and founcl to be correct; and the ward received the balance appearing upon the account, and some time afterwards, submitted the account and vouchers to B., who also found them to be correct; and four years afterwards the ward applied to the Orphans’ Court for a citation to the guardian, to settle his account in the office ; it was held that the Orphans’ Court was right in refusing the citation ; there being no allegation of any specific error in the account settled between the parties.</p>

A rule having been obtained in this case, to show cause why the defendant should not be discharged on ■ common bail, Mr. Chester for the plaintiff, produced the following affidavit, which had been filed previously to the issuing of the writ. “ James Nevins, - v. Robert Merrie, jr. Supreme Court, July Term, 1837.

<p>HABEAS CORPUS.</p> <p>1. Where a prisoner indicted for a misdemeanor moved at the second term to quash the indictment, on the ground that the grand-jury had not been returned according'to the act of assembly, and the court held the question under advisement during the term, it was held, that the delay was equivalent to a postponement with his consent, and that he was not entitled to be discharged under the act of 1785.</p> <p>2. The power of discharging a prisoner under the act of 1785, where he has not been tried at the second term, it seems is confined to the court in which he was indicted ; and the Supreme Court will not interfere, if the commitment is unexceptionable on the face of it.</p>

<p>1. The inference of payment of a bond and other specialty from lapse of time, is a presumption of law, and a subject of legal direction The rebuttal of such presumption by circumstances, is also a matter lor the court; though the truth of the facts or otherwise, is to be left to the jury.</p> <p>2. A judge has a right to analyze the evidence, to present the questions of fact, resulting from if, to the jury, and to express his opinion of its weight—leaving the jury, however, at full liberty to decide for themselves.</p>

<p>Aw action of trespass quare clausum fregerunt was brought in this court, to July term 1829, by William White Ball and others against Daniel Slack, John Morrison and John Sansom.</p> <p>On the trial which took place at a Court of Nisi Prius, held at Philadelphia on the 21st of November 1832, it appeared' that the plaintiffs were the children and heirs at law of one Joseph Ball, by whom the title to the land in question was claimed under the following documents, which were given in evidence, viz.:</p> <p>A certificate signed by the deputy surveyor general of the province, and certified to be a true copy from the original remaining in the Surveyor General’s Office at Philadelphia, on the 31st of January 1764, as follows :</p> <p>“ Pennsylvania.—By virtue of a warrant from the commissioners, dated the 24th of ye eleventh mo, 169.0, directed to the surveyor general, I do by authority from him, certify into the Secretary’s Office that there was surveyed and laid out the same day unto Gunner Rambo, old renter, three several tracts or parcels of land, in the township of Shakamaxunk, and county of Philadelphia. The first piece or parcel beginneth at ye mouth of Gunner’s Creek, from thence running up the several courses of Delaware river to a corner post of Peter Nelson’s land, thence N. 16° W. by the said Nelson’s land, 110 perches to a corner white oak standing near unto the above said Gunner’s Creek, from thence following down the several water courses thereof to ye place of beginning; being fifty-four acres of land, swamp and cripple. ’, The second piece or parcel beginneth at a corner post óf John Tonk’s land, standing by the side of a meadow, thence following up the several courses of the said meadow 105 perches to a corner of Peter Nelson’s land; thence N. N. W. by the said Nelson’s land 177 perches, to a corner tree, standing by the side of a swamp or cripple; thence by the several courses thereof, to a corner tree of Robert Turner’s land; thence S. 36° Westwardly by the said Turner’s land, 58 perches to a corner post of the aforesaid John Tonk’s land; thence S. S. E. by the same 140 perches to the place of beginning, being 103 acres of land. The third piece or parcel (being swamp, meadow and cripple) beginneth at a corner post of Peter and Miekell Nelson’s meadow and cripple, thence S. S. E. by ye same, 104 perches to a corner post standing . by the river Delaware, thence up the same 41 perches, thence N. N. W. by a line of trees 97 perches," to a corner post standing on the fastland of Peter Nelson’s, thence along the several courses of the said fast-land to ye place of beginning, being 26 acres; containing in all the three aforesaid tracts or parcels, 183 acres; which is accordingly entered and recorded in the Surveyor General’s Office at Philadelphia.”</p> <p>Endorsed.—“Return for Gunner Rambo’s 183 acres of land in Philadelphia county. Pat’t dated 24 Feb. 1691-2. Old rent. Gunner Rambo, &c. forever—after leaving a cart way through his said land yt may be most convenient for Rob’ Turner, his'heirs and assigns to pass and repass from and to ye said Rob’ Turner’s plantation adjacent to his the said Rob’ Turner’s meadow which he at present hath or for the future may have right unto—No. 2103.</p> <p>William Brigdale, R. S.”</p> <p>An indenture of lease and release, dated the 21st of March 1728, between Anthony Palmer of Shackamaxun in the county of Philadelphia, Gent., and Thomasine his wife, of the one part, and William Ball of the city of Philadelphia, merchant, of the other part, in which after reciting that, “ whereas, in and by a certain indenture bearing date the 20th of June 1697, between Gunner Rambo of Shackamaxun aforesaid, old renter, of the one part, and Major George Lillington, Esq. of the island of Barbadoes, planter, of the other part, the said Gunner Rambo for the consideration therein • mentioned, did grant, bargain, sell and confirm, unto the said Major George Lillington, all the said Gunner Rambo his three several tracts or parcels of land, swamp and cripples, in Shackamaxun in the county of Philadelphia, by the metes and bounds thereof respectively in the same indenture specified, containing in the whole 183 acres with the appurtenances, and all the estate, right, title, interest, claim and demand, which he, the said Gunner Rambo, had to those 8 acres of land, which he the said Gunner, gave unto Jacob Young, then deceased, and which was then occupied by John Tonk, who married the said Young’s pretended widow, to hold to him the said Major George Lillington, his heirs and assigns foreverand also after reciting divers other mesne conveyances, the said Anthony Palmer and Thomasine, his wife, in consideration of the sum of £2400, lawful money of Pennsylvania, to them in hand paid by William Ball, did grant, bargain, sell, alien, enfeoff, release ana confirm, unto the said William Ball, his heirs and assigns, “ all and singular, the said recited tract or parcel of land, meadow, swamp and cripple, which lying contiguous in one entire tract in Shackamaxun aforesaid, is bounded and limited by the metes and bounds thereof thereinafter specified, and then agreed to be called and always in time to come, known by the name of Hope Farm: beginning at the mouth of Gunner’s Creek, and running up the said creek on the several courses thereof 291 perches to a line of Robert Rawle’s land, then by the said line S. S. E. 4 perches to a corner post, then by another line of the said Rawle’s land N. 60° E. 178 perches and a half to a white oak; then N. 31° E. 14 perches and a half, by another line of the said Rawle’s land to a Spanish oak; then by the land of Daniel Worthington on the same course 70 perches to a white oak; then by a certain swamp or cripple belonging to the said Daniel Worthington and the said Robert Rawle, N. 65° E. 24 perches to a gum tree; N. 85° E. 12-perches to a maple; S. 74° E. 12 perches to a small saplin; N. 81° E. 7 perches and a half to a small white oak; N. 85° E. 25 perches to a black oak; N. 80° E. 18 perches to a white oak; N. 63° E-15 perches to a post; N. 52° E. 14 perches to a white oak; N. 49° E. 33 perches to a swamp oak; N. 56° E; 14 perches to a maple ; N. 65° E. 19 perches to a white oak; N. 72° E. 12 perches to a white oak; N. 60a E. 35 perches to the line' of John Oxley’s land ; • then S. S. E. by the same one 196 perches to a meadow belonging to Robert Rawle aforesaid; thence by the same and the meadow, late of Joseph Pidgeon, W. by S. 40 perches ; then W. 62 perches to a gum; then S. 31° E. 26 perches to an -ash-tree by a small creek; then down the same on the several courses thereof 247 perches to the river Delaware; then down the said river 572 perches to the place of beginning: containing by computation 676 acres besides the flats thereto belonging: together with-the messuage or tenement on the same described great tract, called. Hope Farm, aforesaid, erected and being, and together with all and singular the out-houses, barns, stables, buildings, gardens, orchards, meadows, marshes, swamps, cripples, flats, woods, underwood, timber, and trees, ways, waters, water-courses, fishings, fowlings, hawkings, huntings, rights, liberties,-profits, privileges, emolhments, advantages, hereditaments and appurtenances whatsoever unto the said last described tract of land (then called and intended to be thereafter known by the name of Hope Farm) belonging, or in any wise appertaining, and the reversions and remainders of the .same thereby granted premises, and the^rents and profits thereof, and all the estate, right, title, interest, use, possession, property, claim and demand whatsoever of him the said Anthony Palmer and Thomasine, his wife, of, in and to all and singular the premises, and dll patents, deeds, writings and evidences concerning the same.”</p> <p>' The will of Wm- Ball, dated the.24th-. of May, 1737, and proved the 11th of November, 1740. The record of certain proceedings in partition in the year 1755, between William Ball and others, devisees of William Ball, by virtue of which a certain allotment was made to William Ball; and the sheriff’s deed for the allotment which described it as being exclusive of a certain “ three perch lane •and landing, and a 60 foot lane and landing as represented in the said plan, which are set open for the common use of all the parties in the -said writ named.” The allotment to each of the other parties had this clause, “ exclusive of the said lanes and landings set open as aforesaid.”</p> <p>The plaintiffs claimed under this William Ball.</p> <p>The following parol evidence was also given on the part of the plaintiffs.</p> <p>John Hewson, affirmed. “ I was half-brother of Mrs. Ball. My father died in O.ctoher, 1821, 13th' or 14th. He was named one of the .executors of Wm-Ball. Joseph Ball .is deceased. My father moved on to the property in the. spring of the year 1774, on the other side of Gunner’s creek, now occupied by Dr. Dyott. I am about 62 or 63 years old. Don’t recollect distinctly before the year 1776. My father occupied the dwelling-house now occupied by Dr. Dyott, and all the ground on which the buildings are erected, excepting the lower part of it, which I think is occupied by 3 or 4 buildings now. There was a road formerly went dowh from the Point-road to the dwelling house, and then went up along shore and separated the two properties I am speaking of. I mean the lower part and that which my father occupied. The upper part was occupied by my father. This road was shut up by mutual consent, to hinder people from going over my father’s premises. My father rented the lower property from Mr. Ball, before the change of the road, in 1792 or 3. I think Mr. Ball occupied the mansion house during summer. It stood in the neighbourhood of the present mansion house. The first recollection that I have, the lower part was occupied by a Mr. Clark, a dyer from Scotland. I can speak distinctly from 1776. My recollection is clear to that time, some indistinct to 1775. My father resided in the dwelling-house, now occupied by Mr. Dyott’s people as a dwelling-house. Dr. Dyott’s brother did live in it.. My father carried on there what was formerly denominated the calico printing business. One of the buildings is used ás a glass house ; one as a place to make crucibles or pots for the glass; the third as a clay-house; the fourth as a batch-house. My father at first occupied about an acre and a half, I presume. The lot occupied by- Mr. Clark, exclusive of the flats, was about three quarters of an acre. I don’t know whether Clark had the flats in his possession or not. Clark was not there above a year. After the British left the city, it was let to a person that used to catch eels. He occupied it some years. He occupied the little stone building and the lot. The point between Gunner’s creek and the river Delaware was always under the administration of old William Ball. After my father came into the possession of the lower part, he put on a dye or copper-house, in which the little building formerly put up swas taken in. The dye house built for Clark, now the batch-house. My father always kept every body off from the flats; never suffered any body to take a spit of mud off from the flat, from the eastern side of Gunner’s creek, up to the line of the property which he rented. He never prevented any body, nobody offered to do it, while Mr. Wm. Ball lived. Mr. Wm. Ball gave me and my father leave to take mud. In the year 1807, and I think 8> we surrounded the whole property with a log-wharf, from the next property to Dr. Dyott’s, now Rowland’s, all round to the Point-road. I mean that we inclosed the fast-ground above high water mark. In doing this, we enlarged or extended the fast-ground about 15 or 20 feet round the whole. That part was sometimes overflowed at high'tide, and we raised it and extended it. That part taken in was always covered by high water. I mean the old fast-ground was .sometimes overflowed; that we took in was always covered at high water. In doing this, we took the mud off from the flats clear down to the mouth of Gunner’s creek, about one spit deep, in order that the flats'should not be dug into too deep holes. This was done with the consent of Mr. Ball: with his perfect knowledge; he often came and looked at it. He gave his full consent that it should be done. We would not have done it without fit. I was in partnership with my father. T superintended, directed, and assisted in the work. We went up Gunner’s creek, clean up to the causeway, at the road, taking off the mud. We were’full a year, rather better, engaged at the work.’ No objection was made to our doing it by any body whatever. I think my father left those premises in 1811, about a year after Mr. Ball’s death. I took them then, and had them in possession several years, from 1811, till 1S19, or 20. Took them from the executors of William Ball, my father, I. Inglis, and Joseph Ball. Part of them, on' which the large glass-house stands was leased to Dr..Dyott; the other part, all the rest of the property from about 1819 or 20, until about 1830. I continued to hold until Dyott purchased,—June I think. The part occupied by Dr. Dyott, I fenced off, about three quarters of an acre. I think the executors, or the M‘Connell’s, took charge of all the flats, from the time that Mr. Dyott first leased. I remember one night, there were men set to work to cut a new channel across them, and I sent in word to the executors, and they came out, and it was stopped. Did not know the men. This was several years ago. Don’t distinctly remember the year, some years since Dr. Dyott had the glass house. The same ;persons built a log wharf and sunk it the best part of the way over the creek. A storm came and Washed it away.- This was 6 or 7 years ago. The present bridge was built about 30 years ago. The last dam 5 or 6 years,—been several. Recollect a dam as long as there has been a stone bridge there,—think in 1795. 'The sinking of the log wharf impeded the fishing boats in getting up the creek. I have seen them often ground in getting by; I think I can recollect about fifty years. To the best of.my knowledge, it has not raised ten feet, I do not believe it has one. I say ten feet to give a little latitude. My signification is that I do not believe it has raised at all. I was three years absent, from 1783 to 1786; besides that I have not been absent from the place more than a month, at any specific time until the year 1830. T resided in the neighbourhood, and carried on business on the place. My age is about 63. There was a wooden bridge below the stone bridge, before the stone bridge, with flood-gates, for a great mapy years; after the flood-gates Avere destroyed, they sunk a large sluice there ; that did not answer the purpose. I mean by. the mouth of Gunner’s creek, Avhere it enters into the Delaware at low-water mark. I mean the channel, the deep part of the creek. The distance from high water mark to the mouth of the creek is about 200 yards. I believe it to have been always the same as it is now. I have passed the road and causeway forty years, and observed it. The object of the wharf we built was to guard against the overflow of the ground in freshes. Before the wharf was built, there was made ground there; the high water came up to the edge of it, and we extended the wharf beyond that 15 or 20 feet. The beginning was at Mr. Rowland’s glass house, beginning at his wharf, surrounded the whole of the made ground to the Point-roa-d, next to the stone wall. The object of building that wall was to keep off the high tide from overflowing the whole place, in freshes. Before there was a bridge or causeway, the tide flowed up the creek, a mile, or mile and a half., It flows now to the dam, and if that were taken away, it could go up the flats a mile. There have been flats always on each side of the creek. A large crop of spatterdocks. The flats along the river were of the same soft mud., The width of the flats, on both sides, was 100 yards. Where the logs of the wharf were put down, it was rather gravelly, -—sand, gravel, and mud mixed. When the wharf was first built, the depth of water at high water, on the' Delaware, was from three and a half to four feet on the creek, from three to two feet as it run up towards the Point-road. The log wharf sunk was there some time,—can’t say whether a year or half a year, before the storm drove it away. They used the bay as harbour for the fishing boats, and to anchor their boats on the flats. I think -it was before the coal people began to sink their wharf, that the log wharf was sunk. I mean the wharf that the contention is about. The log wharf was not more than one-third, perhaps one-fourth the way down the creek from the bridge. It was covered on the lower side of the creek from the Point-road. It got so far across the creek, and the executors put a stop to it. It got about two-thirds across the creek, as near as I can recollect. I presume that there were seventy- or eighty feet, perhaps a hundred, of wharf. I think that the channel was attempted to be cut before this wharf was sunk. Won’t say that it was not simultaneously,—rather think about the same time. Know of but the one wharf sunk. The depth of the water at the face of the wharf my father built, did not diminish materially until the time Dr. Dyott built. Dr Dyott has built the wharf further out on the Delaware side; part of his wharf is out to the channel, so that sea vessels can come up. I think the coal wharf is sunk a little below low water mark, and therefore we could not have taken mud from the place where it is. If it is not below low water mark, we did take the mud from where it is. I have never been round the whhrf to examine. At common low w ater, I believe the water don’t leave the wharf. 'I only speak by guess. Joseph Ball died about seven years ago.”</p> <p>John H. Connell, affirmed. “ The children of Joseph Ball are William White Ball, Joseph Inglis Ball, Benjamin .Ball, George B. W. Ball, Charles H. Ball, and Harriet S. Ball. Joseph Ball died, I think in 1825,-October. I rented this place in connexion with Mr. Hewson, in 1816; the glass-works, the lower property on -which .the glass-house stands, with the flats. It was a verbal lease. We had a steel furnace on the upper part of the ground, for manufactory of steel. The western side of the lane, taking the lot on which the glass-works was erected down to-the mouth of Gunner’s run. Had the property from 1816 till 1820. Part of the ground on which the pier stands was a part of- what we had. I saw them take the mud from off a part of it, to fill up the pier. .There is a kind of passageway under the pier, a kind of bridgé^ Part of the pier stands out into the water and a' part of it on a point of land. Nothing passed except that I gave a notice from Mr. Chauncey.' Mr. Slack and Mr. Sansom were at work on the outer end of the pier; they were wharf builders. Mr. Morrison was there, was standing on the wharf, presumed superintending these men. They were throwing the mud in from the point of land, that was above the pier. Don’t think there was any mud below the pier. They had top logs on and bolted, and were throwing in mud. ■ I recollect seeing about fifteen or twenty men throwing mud in; but did not pay any particular attention. I went as the agent,^representing the interest of these young Balls. I did not give any consent—recollect delivering the note, and telling Mr. Morrison he had better desist from it. He made an observation he had no-hostility to any of our family, that he was merely representing the Lehigh Company. The reason I addressed Mr. Morrison, was, fhat I looked upon him as representing the company and the most ostensible person. I think I do recollect the property 25 years. ’ I think in 1814 or 15, some persons undertook to finish a wharf on a part of the western side of the creek, and going two-thirds into the creek, into the channel. I recollect seeing persons at work there at the wharf in 1814 or 15, but who authorized them cannot say. Had nothing to do, to prevent its being completed, no dockage paid for boats on the flats. In 1818,1 received something over $130 for rafts lying on those premises, commencing at Rowland’s steel furnace wharf, and going down to the mouth of Gunner’s creek." They lay on the flats outside of the wharf. I received wharfage for flats extending down to the mouth of Gunner’s run. The rafts were generally made fast to the wharf. I do not know that I ever saw a boat or vessel made fast to the wharf. The rafts were afloat at high water ; the rafts lay along the Delaware front, and inside the point of the run. There is a front of the wharf on the Delaware, and a front towards the creek. I have seen rafts lying double, and the outer; raft paid wharfage to me. Will not undertake to say, that this lay out to the mouth of the run. When a raft was made fast outside to a raft made fast to the wharf, I have received twenty-five cents a day for the inner, and twelve and a half for the outer. I do not recollect any instance, in which the raft was not either fastened to the wharf, or to a raft inside. They lay on the wharf, in 1814 or 15, very near the bridge. They did not get as far down as where the pier now stands, that’s very certain. When I saw the men filling up the pier, they were standing on the mud, throwing the mud into scows or arks. They were anchored on the eastern side of the pier. I always call the eastern side the upper side. I supposed something like twelve or fifteen feet above the pier. I mean the eastern side of the pier. The ark was something like twelve or fifteen feet, and the men were on the upper side of the pier. Did not see the mud thrown from the ark into the pier.”</p> <p>Christian Pote, sworn. “ I have known the mouth of Gunner’s creek about 27, 8, or 9 years. Was in the habit of going in and. out of the creek. The direction I always took to get into the mouth of that creek at low 'water, was to range Wood street. The inward corner of the upper side of the pier stood dry. The lower corner of the inside stands in the channel of the old creek. The out énd from the in corner on the lower side I have seen 8 or 10 feet dry, may be more, never measured it. I should say the mouth of the creek to the nearest part of where the pier now stands, is 25 or 30 feet, as near as I can tell. The piece of ground between that and the mouth of the creek, I have seen that dry ; cannot say whether exactly at low water or not. The water now comes up to the very pier. It has been, may be, 15 or 18 months that I have perceived it to do so. It has been occasioned*by their digging mud from the lower side, and having vessels laying there making beds. Saw persons two or three days after that pier was sunk', digging mud there. There appeared to be 10, 15, or 20 persons employed in it. They put the mud into that pier, as fast as the wharf builders built the pier up. There was a scow or ark lying on the upper side, on the eastern side up the river. They took the mud from both sides of the pier. There is an old log, on a big stone, one end of the log sticks out from under the pier now. 1 have stood on that large stone, now buried inside of that pier,—that I have been on dry. That stone was commonly dry at low water, never knew any variation in the mouth of the creek in my time, before the pier was built. I lived in Wood street part of the time, part of the.time above Dr. Dyott’s factory, and part of the time in Beach street, with the exception of 3 or 4 months, 4 or 5 years ago, I lived in Jersey. I have lived in that neighbourhood all my life. I followed fishing. I think in 1814 or 15, Mr. Earle and Mr. Ridgway attempted to cut a new creek there—confident Mr. Earle was one. I have followed the business of glass-blowing on Mr. Dyott’s premises, and on James Bulland’s, now Rowland’s. On Mr. Dyott’s premises when Mr. Dyott had them; worked for Dyott, and previously for John H. Connell and Mr. Hewson. Followed glass-blowing off and on about seventeen years. Sometimes glass-blowing and sometimes fishing. In fishing, worked as a hired hand—sometimes at, Darby creek, sometimes at Tinicum, Thompson’s point; and. all down the river., I believe I was about 13 years of age when I commenced fishing. Wood street is in Kensington, the upper end.' If you followed Wood street strait to the river, it yvould come out at the mouth of the creek. Wood street is now crooked. Wood street if prolonged, would strike the river about forty or fifty feet below the pier. Our fishing boats returning would draw about 18 or 20 inches or two feet. I cannot tell whether the stone I spoke of, was a rock or not, two or three feet bare on the top, may have been put there or not, not very high, flat on the top, three or four inches above the mud, might have been more, never measured it. I have been out there bathing frequently—numbers of boats employed in fishing that came in and out of that preek, Generally lay on the flats, anchored on them on the east and south side, both—anchored at high water, and when the tide went out they lay on the mud. Might have been 30 or 40 that generally anchored in that place. The people that owned the boats lived in Queen street, and Wood street, &c. I am now employed in Dr. Dyott’s factory. ,'Have been émployed there this time a little better than three months. Worked before with him. Some of the fishermen owned on the river, and some did not, but not above Wood street, but not so as to touch the creek, that I know of. It is common for one man to own more than one boat.4 Sometimes two or three. The height of the old'wharf, above the mud is about five feefi, the face or front of it. There has been a new part added to the old—built out. Still a great many boats for fishing are there, sometimes for shad, sometimes rock fish, sometimes cat fish. I said that I had seen the mud bare on the inner side of the pier, two or three days after that pier was sunk; and frequently before it. Don’t know that it was under any particular circumstances. I suppose it would be bare now, if it were not for their digging it away, and the heavy vessels lying there. When I saw it bare as mentioned, they were throwing in mud from the lower side, and the upper side both. When the tide was in, the water came up to the road, and was then one and a half to two feet deep, ;all along the stone wall, on the flats. Not much channel there along the road, when the tide is down.”</p> <p>James Cornwall. “ I have been acquainted with the ground something like thirty years; haVxe seen the .pier pretty often; the place where it stands has, before the pier was built, been free of water, at tin.’es; at low water, generally bare a considerable way down, sometimes all the way to the point; from the upper side of the pier it was commonly bare at common tides ; won’t pretend to say that it was much farther down; the upper side has been bare at common tides; as to the other, won’t pretend to say; sometimes very low tides; then it would be bare clear away out beyond the point of the creek ? some little water puddles, in places, in the channel of the creek, in some parts; have seen it so at the point, that nothing there but puddles ; have known a change in the mouth of the creek; there is a little difference now from what used to be; the pier has altered the mouth of the creek; it has thrown up a bar near the mouth, and turned it alongside the pier; it appears to have thrown the mouth higher up; the mouth of the creek does not empty down exactly as it did; never observed any such alteration before the pier was built; it appears now to empty out nearer to the pier than it formerly did; it turns the mouth further up the river; you could trace the line of the creek 30 or 40 feet below the pier—not much-less. I am going on 53 years of age; my memory is distinct back about 28 years, of this ground; the north-west wind produces extraordinary low tide; if it lasts a considerable time, it produces more. 1 am a house carpenter; I have sometimes known when the tide has been so that the water would hardly leave the flats for any distance hardly; the depth of water at the bridge at high water, .is eighteen inches or two feet.”</p> <p>Christian Faunce, affirmed. “ I have known this property since my memory, (I am in my fifty-second year,) 47 or 48 years, I suppose ; I cannot say, that the bed of the creek, the channel of the creek, the course of it has altered any except since the pier was built; the place, the mud-flats, where the pier stands now, was left bare at common low water; perhaps 20 or 30 feet below the pier, on the inside part of the pier; the lower side, the south side. I live a little below the creek; my property adjoins it nearly; I see it daily; have not been in the habit of going in and out much; can’t say I ever took any particular observation as to where the mouth went into the Delaware; it always appeared to me that the mouth of the creek led into the Delaware pretty much in one place; the bed of the creek is deep enough at any time to see where it is..”</p> <p>John Smith, sworn. “ I have frequented, about that creek as long as I can remember; am past 34 years old; have followed fishing, and worked within 100 or 200 yards of it continually; before the pier was built, the ground on which it stands' was chiefly bare at - common low'water, some parts of it, as well as I recollect; I have frequently seen where the pier was put some of it bare, whether all ,1 cannot say; I helped to take a great deal of mud off from that point; probably 13 years ago ; may have been a little more or less; for doing up some property there of Mr. Hewson or Mr. Ball; I did it for Mr. Hewson, at the time he had it ;• took it off the point, above -where the pier stands; the mud wras-generally hard there, further down, about where the pier stands; have- not seen any mud taken since, the pier was erected; have seen a machine the lower-side of the pier; they had scows to put the mud in, and were making it deeper to float their coal vessels; this was two or three years ago, I believe. The mouth of the creek has not varied to my recollection, an inch before the pier was built. As a fisherman used to go into the creek. Had no occasion to go any where when the water was up ; could go any where. When the tide was down, we went very low down into the mouth of the creek. I never took any particular range, but- always, at 'dead low water, went in about Wood street. Wood street is thrown up a little I believe, of late years. Cannot tell exactly when it was I saw the machine there. The mud taken off 13 or 14 years, was put on this property that Di\ Dyott claims, by direction of John Hewson ; helped my father carry it off.” ■</p> <p>Jacob Faunce, sworn.—“ I have followed fishing about 40 years. Have seen the mouth of Gunner’s creek pretty often. Have seen the pier. Have seen the ground. bare on it, but did not take any particular notice. Can’t say whether it came down to it or not. Can’t tell whether the mouth of Gunner’s creek changed before the pier was erected ,• it seems to me to have pretty much the course it always did. Have not made a practice much of going up that creek, this many years.” ' .</p> <p>The Defendants then gave in evidence a deed dated the 16th of May, 1744, from Anthony Palmer, with Thomasine his wife, to George Baker; and several mesne conveyances by which the title to h certain tract adjoining that of the plaintiffs, was vested in the ' Lehigh Coal and Navigation Company, under whom the defendants held. In the deed to the Lehigh Coal and Navigation Company, this tract of land is described as follows: “ A certain lot or piece of land situate in Kensington, in the township of the Northern Liberties, and county of Philadelphia, containing in breadth on Queen street, or the road to Point-no-point, 70 feet; and extending in depth from the said road, down to low water mark of the Delaware river. Bounded southwestward by John George Rees’s lot, northwestward by said Queen street, northeastward by land of William Shippen, and southeastward by the river Delaware.” The defendants also produced a license dated the 21st of May, 1829, from the Board of Wardens, for the erection of a wharf, and gave the following parol evidence:—</p> <p>John Rice sworn.—“I reside near the property in Kensington: born there, within forty feet of the Brusstar lot, the lot on which the company have built their long wharf: follow fishing and catching .shad: was born 13th April, 1766 : going on 67 years, old. Before 1774 a boy: \after the revolution occurred, was pretty active: beforej was a boy and used to go, to swim up the creek. There was a flood-gate below where the bridge now is, and two sluices; before 1774, I used to cross and go up the place where Dyott’s is. Two large Locust trees: when the British were in Philadelphia, the guard used to lay there. The old house, Baker’s, was on the lot at that time. At that time it was banked up with a temporary bank of logs; before that it was banked off about 70 paces down: logs may lay there yet. Outside of the-wharf were mud flats to'low water mark. When the British were in Philadelphia, the flats at that time, and for a year after; my father fished then; I fished then with my father. Don’t believe at that time, to the best of my memory, that the flats were more than 00 or 70 feet from high water mark. The building that Mr. Dyott has now, the upper one: dye house was there, and at high water when fishing, we used to go near to that: we hauled the seine there: no wharf then there: used to tread a log at high water. It was called the old glass house. When the British left Philadelphia, they opened the dam of the old creek: the old low water mark was not more than 50 or 60 yards from that place: very little point at that time. New channel nearer to Dr. Dyott’s than the old one. In 1805, they erected this present bridge. The centre of the bridge is 14 paces above the flood-gate: 23 paces further down to the lower sluice at that time. That I consider at that time to be the lowermost part of the creek, and the flood-gate the uppermost. At the Rice’s line, and Brusstar’s lot. I step! off a few days ago, from the Point-road to which in 1805, was low water mark, 155 paces; from the same starting place, it is now 185 paces. Baker’s wharf was built about 1805, and that was built somewhere about low water mark; I found my judgment from that. The next view I took was at the old glass-house wharf, two or three days ago. I remember that years ago, that I used to go there at low water. I did not get on the wharf; but saw it by the willow tree, 155 paces. Continued on—last winter I went to the steamboat when she lay there, and took a view of the creek. I stepped it off, and found it was fifty paces from the pier to the steam-boat. Where she lay, was in 1805, altogether outside of low watermark. The river was frozen last winter; the steam-boat lay just below where the upper creek came out in 1805: the lower part just below: I took a range then up the middle part of the bank wharf; the new works ; new glass-house wharf put down by Mr. Ball many years ago. I thought that the channel run nearly the course of that: lower than now. The upper part was 14 paces below the centre of the bridge. My step is about a yard: may be something less. Used to step a yard very exact. ■ I did not take much notice of the ground when the pier was sunk. In 1805, Dr. Shippen who was well acquainted with my mother, owned the flats above Brusstar’s lot; offered to sell to my mother. I thought the flats were about 30 paces below; above Brusstar’s lot: shortly after the pier was finished, they brought their vessels and loaded coal on the lower side: large schooners and brigs; don’t know whether they floated at low water. I have seen the slag and cinder laying outside of the wharf. With regard to the pier—I remember well, I think, that where the pier is now, some years back, part of the pier was the deepest watef, inside of the stone bar, which lies off part of their property and lower part of the Brusstar lot. Vessels worked in when the tide was low—tolerable good.water. The stone bar is well known to every body. The company have buoyed the bar sometimes—I have seen it buoyed. I saw a large vessel laying on it last fall, I think. There is a small channel between the stone bar, and the Rice’s wharf; not so much as there used to be. One half of the mud taken up by the machine was thrown on front of the Rice’s lot—one half belonged to me. .-It was put on the half down. I think it was two years after the pier was built. The mud they brought out was generally pretty sandy; made ground at that time. Conrad Baker’s'wharf was one of my marks, the lower one, when I took my view. The old steel furnace was the other. I heard that I was summoned as a witness, and, that I-would be examined—never told a soul. Told Mr. Barker that the creek was moved. The time I refer for the moving down was 1805.- I never thought in going in that the creek ranged with Wood street. There was no Wood street. I know of no Wood street-. If Wood street were opened, it would come out 40 or 50 paces lower down than the line of the two lots. According to the plan, it takes along the fence of the coal company. It appears to me that it takes the counting house on the wharf. Twenty years ago, to the Delaware, it would go 40 or 50 paces below the line of the coal lot. I gave surveyor my opinion that it was bent to make an elbow. The Rice, property is next to the Binder lot, on the southwest side, from Queen street, to the low water mark of the river Delaware. The line of the Rice property would come within about 20 feet of the pier. If the creek emptied into the Delaware 40 feet below the pier, it would run 20 feet on the Rice property.</p> <p>Martin Cramp, sworn.—“I. reside in Kensington, -and havé resided there 69 years, since my birth. Binder, and 1 own part of the property next to the Lehigh company’s lot. My business is that of a fisherman. I can recollect from 56 to 57 years. I remember that the creek makes more down now within a few years, than it did many years ago. It emptied itself many years ago above the coal pier of the coal company, about ten or fifteen yards, perhaps, more above. I used to go up and down that creek frequently. I did know the old glass works above the creek. They used to throw their cinders out of doors; they were near enough high water mark, and they drifted to one place and another. At the new works, I see a good deal of stuff thrown out the south side of their long wharf. 1 had boats; they used to lay on the mud flats at low water. The bar of rocks lies the lower side of the pier of the coal company. There was deep water between the shore and the bar. After enter-' ing the passage and running up about 50 yards, they might go either northeast or south any one. It is 15 or 20 years, or more, since I first observed an alteration in the creek. It went on gradually ; some years more and some less. The channel of the creek has changed all the way down from the bridge. It fills up ever since it was stopped out.’ Ever since the dam was built above the bridge. P canno.t remember when the dam was first put there. It is beyond my recollection the first part of it; it has been broke three or four times. There has been a dam always. When I first knew it, it was an old dam. There was a flood-gate there, and that let the tide out and in. It was partly where the bridge is now, the arch at the road; right under the middle of the road. I do not say that that made the alteration in the creek. I cannot remember where the road began; never took much notice then of such things as did not concern me. When I went into Gunner’s creek, I ranged it with nothing. Going up of down, I ranged it with my oars, as the tide was. I have lived in the property thirty-two years. I received that by my wife, eight or nine years ago. Never lived on that I had by my wife. I lived in a house about three or four hundred yards from the creek, below—fished from there. My boats lay down; away down; I forget the name of the street; about one hundred yards above. I lived there before the British came to Philadelphia—don’t know when that was. After that, I lived with Peter Baker as a hired boy; that was near there, above Jacob Faunce’s line. Our boats then lay right off there. Sometimes at the'wharf, according as how the tide was. I commenced fishing for myself, and lived close by Peter Baker’s; at first with him. Then lived with my mother-in-law, a year or so—the house that my wife owns now, Rice’s. Owned one or two boats. They staid mostly on the shore by the wharf, Rice’s wharf. Next lived where I live now, above Wood street; I suppose about 40 or 50 yards; in Queen street. Boats have been kept sometimes in the .creek, and sometimes at the wharf—mostly at the wharf though. The distance from the rpad along the creek to the pier, is from 150 to 200 yards. I have seen broken pots laying outside of the wharf towards the creek, not towards the Delaware. Married Rice’s sister 40 years or better. There has been a division of the property between Mr. Rice and Binder and me; the line run. The lot next to the coal company belongs to Binder and me: next to that Binder’s, then mine, then Rice’s. The side of the pier this way, ranges with the company’s yard. Binder and my lot, then next is twenty-four or five feet wide. Then Binder’s about twenty-two feet. Then mine twenty-five feet; then Rice’s the balance of the Rice lot. There is very little water in going into the creek at low water now. So low that you cannot get up with a small boat now. I have taken a haul or two with a small seine above the creek; hauled in above the glass-house. When I first remember, the road was lower down, and there were sluices in it. Next was a flood-gate, somewhere about where the bridge is now. That was when the British were in Philadelphia; I believe torn away. The tide run up two miles before there was any dam, I know that from the time the bridge was broke. I remember a log or two laying there; may be a hundred yards from the bridge; the left hand going up the bridge. I remember the building of a wharf on the Ball side, but cannot say'what year it was built. I mean Rowland’s steel furnace by the old glass-house.”</p> <p>Peter H. Pote, affirmed.—“ Live in Wood street. Shall be 60 years old 19th of February. Borh there. Acquainted with Gunner’s creek, ever since I was ten years of age, going in and out, was one year absent, the year 1794. The-tongue 'of land has increased within 18 or 20 years to my recollection. It has been owing to Mr. Rowland’s building a wharf, out near where the old glass-house, steam factory lot called now. I remember the building of the wharf, cannot exactly state the year. ■ It has appeared to me to be continually increasing ever since that. It has had the effect to gather in loose mud and one thing and another, at the mouth. The mouth is about 30 or 40 feet from where it was formerly. My business was fishing. The boats'”generally lay upon the fiats that the coal company owns at this time ; sometimes at the old bridge. I was laying just outside of the dam, when it was carried away in 1831; laying just below where Dr. Dyott’s wharf now is; exactly where the stream of water came out. It was about five hours ebb, within two hours of low water. The course the water took was within about 50 yards from the east side of the coal pier, the upper side .towards Mr. Dyott’s above the pier, up the river. Dr. Dyott had begun his wharf coming along, towards the coal pier. It had then come farther than the old wharf, very trifling, might have been in a range with the old one up at that time. I recollect the old sluices, they were before the present bridge; the flood-gates first, then the sluices, then the bridge. The road ran on the dam. I think it was day before yesterday, I saw Mr. Dyott’s men carrying mud, and throwing out on the side his glass-works are, on the cinders' towards his works; can’t tell where they brought the mud from. Saw them unload but one at that time. I saw Mr. Michael Dyott’s men sink their scows with mud at the time the dam gave away. I cannot say, whether the increase'of the tongue of land had any effect in turning the mouth of - the creek, where it empties at low water. The fishermen’s boats continue to lie about there on the flats. The” dam broke on the inside.' The quantity of water coming down, the body of rain, caused it. I saw the logs that came-down grounded on the point on both sides, that made some stoppage-of the water. The whole of the flats were covered with water, when the water rushed down; remained covered from three to four hours, as long as the water came passing down out of the dam.. When the tide was low, the creek took out in the old channel, the same bed as before. When the tide was high both out and. above. I am able to say that the mouth has changed 30 to 40 feet 'within 20 years. This is my opinion. I took no range, had to go lower down to get in. We used to range by Wood street in old times, to come in against Wood street, come up along shore and sound with our oars till we got in. All the change that I speak of is within 20 years. Know of no change before, since Mr. Rowland’s wharf was built. It might have been a couple of months before the dam was repaired completely. It was where there is no wharf, that they were throwing the mud, day before yesterday, taken out of a scow by four men. It was Dyott’s scow; did not know any of the men—was within 15 yards. First observed the change of the creek within 20 years; can’t pretend to say how long it has been as it now is. The whole change that I speak of was within eighteen or or twenty years ago. It is making at this present time, farther down, notwithstanding the pier. The mouth of the creek strikes about 10 feet above the- upper corner of the pier, the low water mark of the creek, both sides of the creek run under the platform, between the pier and pier head; the increase did not go on very last, 18 or 20 years to make 30 or 40 feet. Follow fishing yet; always made a custom of going up and down that creek: never had any other place to land: keep my boats, on the coal1 company’s flats, on the farther side of the creek; I have permission from the company to let my boats lie there, when they are not bringing, in coal, so that we keep them out of their way. Never saw the mud bare, below the pier, on the outside of the creek. When the dam gave way, the water made a new channel through the mud, and that was 50 yards above where it is now. It might be 30 or 40 yards, below the mouth of the creek where we struck that’we ranged with Wood street.”</p> <p>Frederick Tees, affirmed.—“Live up the Point road : lived there 35 years, last day of last February: have known Gunner’s creek above 50 years: lived part of the time in Kensington, part of the time, adjoining on the creek. Last July was a year the dam carried away. The water took a right straight course from the bridge into the river: I remember the course of the creek, 30 or 40 years, but cannot say where it came into the river Delaware, but to the best of my knowledge, considerably higher up than it does now: near the glass-house. Judge by my own observation, going up and down for 30 or 40 years : can’t say for certain as to the spot: I have fished above the bridge, but more outside. I do not know when it first struck my judgment that it was higher up, no particular object that I judge by. I recollect the flood-gate and sluices. The flood-gate was in the middle of the road : the sluice along the side. The road ran where it does now. There was only one sluice at the time I am speaking of: flood-gate and sluice both.”</p> <p>William Binder, sworn.—“ Been acquainted with this creek something rising 50 years: born in Philadelphia.: my grandmother lived in that neighbourhood : when the British' came to Philadelphia, my father being in Philadelphia, my mother took refuge there: 40 years ago : nearly in a state of natúre : no improvement above, till Norris’s wharf at that time, I used to swim in it: just after the British left Philadelphia, my father settled there. The creek emptied itself in a nearly straight line, except a little cove -at the point, on the north side towards Ball’s: they used to bring wood up the creek to the bridge : a vessel with wood coming up. to the bridge, would come up in a straight line: where the bridge now is was a flood-gate, below that a sluice. I have seen the' present pier head. Should not think the distance from the bridge to the mouth of the creek was then more than 150 yards,—never measured it,—short distance. I own property immediately adjoining. The company’s pier is far south of where the creek was. The company’s pier is away out in deep water. I should suppose the creek ran and emptied above the pier, 150 feet, at least 100 above. The property immediately adjoining was my father-in-law’s: next adjoining the company’s lot or orchard: never gave the creek more thought after I left Kensington: left Kensington in about 1790. The property of my brother and myself, own the lot adjoining the coal company’s lot. Where the company’s pier now stands I think must,have been near the channel; there are rocks outside, on which people used to go and cut their names on them. The accumulation is from year to year, no great amount in a year. Petty’s island has'increased greatly and so has Windmill island.”</p> <p>Fanny Pote, affirmed.—“ I am better than 70 years old: live in Kensington, in Wood street: lived there above 60 years, remember the creek they call Gunner’s run. I do not know rightly how far it ran up the meadows. The creek used tb run straight out from the bridge, until you come to low water mark, and then it had a little turn. It has filled up a great deal, and has thrown the creek more down than it used to be. They throw any thing out of the glass-house, and it turns the creek more down than it used to be. Ever since they have been there at-work, they have been in the habit of throwing things down. Been in and out of the creek in a boat, many times: many hundred times: the mouth of the creek straight out from the bridge, just at the low water mark a little turned. Did not take any notice of any rocks. I cannot tell to what time the course was straight out from the bridge. I never saw the change before to-day. I know it has filled up, and must come from somewhere. I never ‘saw any body throw any thing in. I went up to my son’s, this morning, he lives above the glass-house, Jacob Pote, I just looked over, and'found that the creek was away down to what it used to be. Never took much notice of it. I cannot tell to what year it ran straight. Sometimes the flats get partly all dry. Sometimes they don’t, just according to the tide. Sometimes, they 'would have to row a piece round to get into the creek. Could telf easy enough when they got far enough. My husband dead near 15 years. He had quit six or seven years before he died. Up to that time, I had not been in the habit of watching the creek: Not 50 years that I used to go up and down the creek-: I guess it is better than 40 years : it is not 40 years since I stopped going up and down: very often went up and down since he followed fishing, but not since it has made down so low. Can’t tell how long since, I went up and down. I live in Wood street.”</p> <p>Isaac Coates, sworn.—“ My residence in Beach street, about 100 feet from Palmer, three squares from Wood street. Lived before the British came here, apprentice to Manuel Eyre. Was born in 1761; going on 72. Remember Gunner’s Creek, when I was a boy. I have passed backwards and forwards over the bridge. The creek used to eject out pretty straight until it got out a piece, and then took a turn way down towards Wood street, towards the city. I had no particular mark of the creek’s going out. But it emptied into the river somewhere about the upper side of the pier. The mouth of tho creek, above the upper side of the pier, came pretty close, I guess, to the pier. All the notice I have taken, about two years ago, I went to see Lawrence the wharf builder—the wharf near completed. I saw a thoroughfare through the pier. I said, I think, the creek was higher than this. I am a ship-carpenter. I never came off in a boat. Saw a great many freshets.”</p> <p>The following memorandum, in the handwriting of John Lukens, formerly Surveyor General, was then given in evidence.</p> <p>“ Memo. March 16, 1773.”</p> <p>“ Being called upon to go in company with Hugh Roberts, Joseph Fox and Charles West, to the bridge over Gunner’s run or creek, on the road to Point-no-Point, and after placing a surveying instrument over where they said the middle of the creek formerly was. They set the course to the place they said the creek’s mouth at low water mark was. The same was found to be S. 7° E. • From the same station, the chimney in Marmaduke Cooper’s new house, bears S. 15° E. and the steeple of Christ Church bears S. 43° 45' W. Carefully examined.</p> <p>Pr. Jno. Lukens, Sr. Gen.”</p> <p>Benjamin Moore. “I was, last Thursday, on the bridge that - crosses Gunner’s creek. I endeavoured to ascertain the station mentioned in the memorandum as near as I could. After taking observation of the course of the creek above the bridge, with the eye, and some distance below the bridge, I took a station, thirty feet south-west of the middle of the bridge, rather nearer W. than S. W. and ten feet from the S. E. wall of the bridge. I then put the compass to bear S. 7° E. as mentioned in the memorandum, and directed a person to stand in the range between Dr. Dyott’s wharf, the new projection into the creek, and the pier head, the west end of the pier. And in the range with the course that I took, put up a pole there. I then got it measured from th'at pole to the pier head,' 220 feet. I then took the course to the chimney of the house, that was said belonged to Isaac Cooper, son of Marmaduke Cooper, found it bore S. 15° E. differing half a degree from the memorandum; strong 15° E. full. Then took the course to the steeple of Christ Church; found that to be S. 43°- 45'- -W. same as in the paper. Then measured from the bridge to the head of the pier, the north end I call it, according to the course of the creek. It measured 520 feet; would not be much less in' a direct line. Then tried the courses of some of the streets that had been laid down about that time or a little before, in order to ascertain how near the compass these traversed now. I found it varied about half a degree. I felt pretty well satisfied in my mind; that the -station I had was not far off from the station spoken of in the paper. I believe I had it as near as it could be ascertained. Mr. Enoch Lewis told me he had been engaged in an operation of this sort.' He was here during this trial. When he went out of .court, he told me he was very unwell, that he would have to go home. His home is West-town School. He thought it was likely they would not want him here very soon. After I went home-I compared what I had done with the old map. -Applied to the map the measure from the bridge to the Brusstar lot, to see how it would correspond; likewise the angle that Queen street now made with the course S. 7° E., and found that a line drawn from the point where I stood, that is this measure on the map, to the angular point, the point the angle made,.would pass through that narrow part that is delineated on the'plan, Evans’. Last winter, sometime in December I think it was, when the river was frozen over, it was a favourable opportunity to get a measurement across from Bishop street; it runs down- from Queen street, parallel to the lines of the Brusstar lot, &c. I measured across at right angles with Bishop street, to the S. W. si.de' of the company’s wharf, up the river—put a nail in a post—that line was right, the S. W. line of the company’s wharf. It was 506 feet from Queen street. Then measured across the wharf; found that within about two feet of the line. It was not far in, 12° E. Their N. E. line went about two feet further. Did not range the pier, it was a very cold day. The most prominent part was within the line, two feet from there up to Queen street. I should suppose from the appearance, that the pier was not far from right. Could not be far from being within the Brusstar lot. Its exact position could only be determined by going lip to Queen street, and ranging down; but that I did not do; it was very cold weather. The reason' I took thirty feet S. was that I ranged the creek above and below, and thought it about right. The pole not standing there now. The pole appeared to me to be about ten feet offfronvDr. Dyott’s new work, ten or twelve feet. I measured with a tape-line from Queen street down. The space occupied by the bridge is fifty-nine feet—the arch twenty-one feet. Been acquainted with that neighbourhood about four years. Never till I got into the business of surveying.”</p> <p>Calvin H. Barker, sworn. “ I was at the dam soon after it broke, a year ago last summer, sometime in the summer. The water run pretty nearly a straight course out above the range of piles, the row of piles standing on that side of the creek, called the company’s N. line. There is two hundred foot between that line and the seventy feet lot. The general range of the water was ten or fifteen feet above the piles. Ran out to the fiver. It was several weeks before they got the dam repaired. They repaired it several times and it broke out. It run out that course, till it got down. It run out there until it got so low, that the tide left it, the old channel being lower. It was three or four weeks before the dam was finally mended: it mightbe more. ' There were arks sunk across the new channel, loaded with mud; filled there by Dr. Dyott’s people. They were building a whar-f; at work every day. I think that the arks loaded with mud came from up the river, from up near the Bake-house. There is no particular use made of the flats opposite the glass-house. Very soft mud—large business there. Out of the houses next the bridge, they throw their refuse stuff into the water. The upper one on the creek tumble it right out rather into the creek. I-Iave seen them throwing it out. Commenced working there two years ago last April, saw them soon after. Working for the Lehigh Company. Know nothing of the property before that time. I have seen mud taken off outside in the Delaware, and put into Dr. Dyott’s wharf. Am employed by the company as clerk, agent in shipping coal. No coal there now, nor since July.”</p> <p>Samuel H. Fisher, sworn. “ The pier is 80 feet, two inches short, from the outer part to the inner. Intended to be 80 by 50, a little short of both. Three or four months building the pier. On the N. E. side, it comes to their line. It does not come to the company’s south line by 16 or 18 feet, on. the side next to the Rice’s property. When I went to Ball’s line or basin, with the Lehigh Company, all the mud that was thrown into that pier for the purpose of filling it up, with the exception of four, certainly six ark loads was dug from the company’s flats, S. W. of the creek, the inner side of the creek. Superintended the building of the pier. Took off two hundred feet, a foot thick—not all put into the pier, a part was put on the wharf on the N. W. part of their property on Queen street. From four to six ark loads of mud and sand I removed from this tongue of land, north of the pier, probably thirty feet from the pier; commencing six to ten feet north of the pier up 'towards Dr. Dyott. Never saw any rocks, took it off, eight to ten inches in depth; considerable portion sand.” . ,</p> <p>James Altemus, sworn. “Reside in West Kensington. Lived there 33 years, age 63.' My recollection runs back 40 years. Lived in East Kensington, from 1792 to 1794. Was in my 24th year when I moved to Kensington. About. 18 or 20 years ago, seen-from the bridge, the creek bore up from the bridge, and there made a turn and bore down. I have seen the pier of the Coal Company. It appeared to be joining on Mr. Rice where the creek emptied into the Delaware, according to my calculation, it did so, about 40 feet from the upper side of Hewson’s landing. In 1818,1 was assessor and collector. The property was assessed as Hewson’s. Earle and Ridgway come next to Hewson, I think 200 feet. Then Samuel Brusstar’s loti We concluded that .they went down to low water mark, we did not think there was any'thing between them and the river Delaware. I received the taxes, Mr. Earle paid the whole tax on their lot. Mr. Brusstar himself, on his lot. Was last collector in 1817-8. Only two years. Collected in 1818 the tax of 1817. In making the assessment followed the triennial assessment, which had been the year before. In 1818, Gunner’s creek did not run in front of the Brusstar-lot.”</p> <p>Michael Day, affirmed. “Reside in Kensington. Have collected the taxes in East Kensington twelve years, and in West Kensington three years. The Frankford road is" the line between East and West, the Cohocksink creek the northern boundary; thence Queen street, call it the Point-road generally. For several years, I collected from the Benton estate, a part, and the balance from Clayton Earle. I assessed all that, property for something like 13 years, I think, we considered them to go to low water mark. * Never undertook to measure the distance. This is the assessment book for 1819, my signature at the end.</p> <p>Page 15. John Hewson, Jun., Glass-house and lot, $2000 Earle and Ridgway, Water-lot, 360 feet, 1867</p> <p>That means on Queen street. > Samuel Brusstar’s estate, Water-lot, 70 feet, 267</p> <p>That is on Queen street, lying along Wood street. I assessed it in that way for several years; then it was assessed in the name of the Coal Company. I collected the taxes, Clayton Earle pays for 160 feet, the Coal Company I suppose 270 feet. 1829 was the last year I collected. The year 1832, last assessment. I never noticed any change of the creek, passed .there a thousand times, if it has had any I have not observed it, it has been so gradual. I recollect ■ travelling backward and forward there for something like 30 or 40 years. I considered ourselves as assessing all north of the creek to the Hewson glass-house. Never took notice that the creek cut off the front of those lots. I have lived within four or five squares of this place, for something like 50 years. Was absent some pait of the time, but that was my regular home. Never absent more than a year at a time, and not more than twice, as much as a year. The first in my early life, and in 1812-3 in North Carolina, about fifteen months.”</p> <p>John Sexton, affirmed. “ Am a wharf builder, have been 38 years in this city. It is very commonly the case, for them to fill up where a wharf extends out, particularly on the lower, side by the ebb tide. In some situations it fills up with the flood. It depends on the situation of the river in my opinion. I have seen wharves built within twenty-five years, that have filled up a foot every year or nearly so. The wharf on the upper ,side of Pegg’s run, sunk by Conarrow, that Ephraim Haines occupies now. There was when it was sunk, twenty-two or three years ago, something like eighteen or nineteen feet of water, and now it runs bare long before low-water. Another instance on the south side of Cohocksink creek, 19-feet water when sunk. Now about two feet water. The wharf-at Pegg’s run is filled up most at the front. It is more than sixty feet from where low-water mark then was, to where it is bare now, Cohocksink creek' the same. The wharf 'at Cohocksink creek built some years before Mr. Haines’; think in 1796 or 7, not certain which. In a certain set of tides, it will fill up and makes land and bars, particularly where there is any obstruction thrown in the way. 1 don’t know of any greater depth of water filled up than that I have mentioned. I did not build Rowland’s wharf, don’t recollect the time when it was built.”</p> <p>The plaintiff then gave the following additional testimony.</p> <p>John Hewson, called again. “ I omitted in my testimony the other day, that Mr. William Ball authorized me and my father to keep olf any person from taking off mud. I stated that no person made any attempt. I correct it; several persons did attempt it. Also since the executors, I forget the gentleman’s name. I think Mr. Earle attempted to take some of that mud, and was stopped by the executors. To my knowledge for 55 years, Mr. Ball and his successors. With respect to the positión of the rocks. There is a rock lays'under the ground, on which the S. W. glass-house now stands. I have made several attempts to get wells sunk, have got down 3 or 4 feet and come to the. rock and desisted. This rock extends itself about two-thirds of the m,ade ground to the creek, and forms a natural barrier to the creek. The rock which extends out to the creek is about five feet above the level of the water at low-water in the creek. I am well acquainted with the bed of that creek. I brought some shallop loads of stone for Mr. -Leiper up it. I presume it is about 300 yards from Rowland’s wharf to what is called the mouth of the creek. This reef of rocks in the river runs up and down the river in a southerly direction. I never examined the character of the stone of the rocks in the river. They lay off in the river, about 150 yards, rather below the mouth of the creek, but very little. Any one may see the ripple of the rocks when the tide is half down.' The rock is nearer to the lower glass-house than the upper one;. rather between. When the pots are broken, I had them thrown out to cool, but they are so valuable, that we had them collected, to grind over, to make new pots; nothing has been thrown there to fill up, but about 40 feet of the ground close up to the bridge has been taken away by the wash of the water. I remember an old trunk up by the bridge, a part-of it lays there yet. There was a little trunk that carried off the water from the wharf out the creek. It is buried in the earth. The mouth of that trunk was just over the wharf. The pond up above, where some of Mr. Dyott’s buildings now stand. This is under the earth 6 or 7 feet. The rock is 40 or 50 feet from the side of the wharf; that ground that I banked in. The change of the creek from the bridge to the land opposite the rock, has taken off about 40 or ¿0 feet from Mr. Ball’s ground. There have been 15 feet added to the old wharf on the creek side,'on the made ground, within the last fifty years, beginning at the Point-road. About the same on the Delaware side. I'know the time when the channel was about 40 feet above the present bridge.”</p> <p>Frederick Aufert, sworn. “I remember when the dam was broke, I went to look at it, summer before last. There were several arks laid across the creek at the time, loaded with coal; how many 1 don’t know, there were several at high water in the middle of the creek, they were totally under; so that a batteau could float over, as the tide fell they had to haul the batteau over. There were a few logs floated down and came crosswise. The arks were lying about midway up the creek. Of course, they had an effect, they stopped the creek as the water fell, .'and the water had to find some way to get out. Don’t recollect how long they remained there. I do not recollect seeing them before the dam broke. I went down to see the dam, and saw them there, they stopped the water and it went bodily over all the flats. Opposite the old creek, where the sluice used to come out, that is about 30 or 40 feet this side of where the bridge is now, I saw some rocks, and appeared to me as if they were founded in the bottom, the opposite side of the creek, towards the Delaware. I did not take notice'what way they extended, they appeared to be level with the mud; how large I could not tell. I have been on them. Some years back, I helped to dig mud off the flats, this side of the creek, towards the Point-road, dug for me, and I helped carry it out. It joined the Brusstar line. Earle, got it' afterwards, don’t know who had it before: They had the privilege of taking mud out for their dam. This was in 1806; I mean the dam, not the present dam, but the one before, close up to the bridge. I helped to carry the mud. My employers were David Faunce and Francis Hoffman. The best part of the dam was'built of mud from there. I carried mud there eleven days. Had no scows: hand barrows. The dam broke in the night, the next morning I went to look at it: it was forenoon: I can’t tell whether I had taken breakfast, of after. I am a shoemaker by trade; and' fishing. 1 never measured the distance from my house to the dam. I live in Wood, about midway between Queen and Prince streets. Had not been on the bridge the day before the dam broke. There was a great body of water came down the creek, I don’t remember the exact time of tide when I saw it; all overflowed. Part of the dam broke when I was there; came with great force. There had been heavy rains. I reckon it took nearly all that day, or more, for the water from the meadows to be discharged. I can see the meadows daily. See them from my windows.</p> <p>John Sexton, called again by the defendants. “ I put some sluices in that creek about four or five feet above the arch of the bridge on the upper side, in 1806. Charles West, old Mr. Ball, and Mr. Norris, managers at that time. The meadows above all under water. Below, the course of the creek seemed to run very close to the side of a building on the north side of the creek, the first building below the bridge, and I thought would wash it away if something was not done. After it was stopped sometime, observed rubbish, thrown out. Noticed that the creek took a pretty straight course out from the bridge, at that time it appeared to take a straight course to low-water mark. Did not see any rock.</p> <p>William Hough, sworn.—“ Am employed by Dr. Dyott at the glass works. It will be eight years the 8th of next May. At the time of the freshet, the water was annoying us a good deal in the glass-house yard. It was above the wharf. I had occasion to go across the yard, to that side close to the' creek. I observed that the dam above was bursted. It was pretty early in the morning, 7 or 8 o’clock. Saw a great deal of stuff, lumber, some boards and pine wood coming down. I observed that instead of going its usual course down the creek, it made its way across the flats; and seeing the water going' a contrary course to what T- had seen before, I began to look a little to see the reason of it. I saw, that not quite half way below the piles, from there to the bridge, there were some arks laying across the creek. I had seen some before, very frequently ; they were arks loaded with coal. Before I had seen them frequently, but this time I observed particularly, that they did not rise at high water. I saw the water striking in a strong torrent against these arks, and then flowing across the flats. I thought it then my business, as soon as the water fell, to see the reason why the arks did not rise. When the water fell and tide was down, that evening or next morning, I walked down the fiats, and believe it was fifteen or twenty yards below the'piles; there was a body of stone put in the midst of the creek: not common building stones; flat stones rather of a sandy nature; free from mortar, or any corrosive substance, flat, 12 to 18 inches broad. About as many as a coal ark would hold. Good part of them there to this day. On 'this bed of stone, lay together twp.'chal arks, connected together with a little pin : lay in a horizontal direction, dipping towards the creek, and they held both water and co'al. From the edge of these two arks, lay five or six arks more, all in one line—one completely on Dr. Dyott’s flats, and one or two ort the opposite side of the creek. And close adjoining to these arks, a large plank, about two and a half or three inch plank, about twenty feet, which had come down, that dashed up and formed a complete dam; the water struck against this, ahd the plank turned it Over on to the Dr.’s flats; with the force of the current, and wood floating, it knocked off some dirt about ten or twelve feet, and gullied more than a foot deep. The bottom all round hard and solid, with a great many hard roots— dock. Walked down round the point; saw an old quarter of a dollar. Returning back, there is-a sort of elbow, or turn in the creek, the surface of a large rock inclining northwest, about six or seven feet from the elbow—may be eight. In the centre of the rock, a small hole about ten or twelve or fourteen inches square. The whole surface of the rock appteared not less than twelve or fourteen feet square. Have since been on the rock several times. It lays, about an inch more or less, four feet above the bottom of the creek. Not less than four feet. The broken pots are a very valuable article. I believe that not a piece as large as my hand is put in the river. I believe no man ever saw it; I never did. The height of the old wharf above the flats, composed of three logs one upon another, all of which are worn away; the bottom one remains with the iron. When we have taken -cinders, &c. we have laid them there, and notwithstanding, there have been left from four to six feet within four or five years. I mean the side wharf next the Goal company. All on the Delaware side is a new wharf. We have, looked at the rock. I believe it was in the last spring, probably May or June, the last time we looked at it. The logs are washed away, by being rotten. What I call the old wharf is as it now stands on that side ; there is no other. The water at high tide runs higher than the former height of the logs ; difference in tides, some not so high, some higher. The. four to six feet have been taken away, in a strait line from the first glass-house down to the second, in some places, four feet, in some as much as six, and in some places, we have laid mud on to keep it from washing away. At the southeast corner of this old wall: this was done from two to four weeks ago. The cinders and rubbish is thrown out at the glasshouse door, and when the tide comes it washes away. More washed away when the cinders are thrown at. least six feet. From the upper glass-house to the bridge, there are logs, and I believe there was a fence. I believe that the logs remain as they were. I believe neither gain or loss. There is an old log that covers; through this is a kind of conductor. That log comes between the second and third log—opens and there is a piece of leather. I saw it in 1825, and it had then nothing gained or lost. This log conducted the water out of the creek, into a lciud of basin or reservoir, made to receive the tide water. The logs are all pretty much as they were ; some part washed away. At a common high tide, the water will go over these- logs. The bottom is bare there close up to the logs, at low water; not more than a few inches. The bottom is always bare the whole extent; one part six or seven feet, in some places rather more. I think it may be ten feet against the wall; the end next the bridge. I cannot say whether gain or loss, at the place where the pipe is—may be a little gain; lower down, loss. The ground may have gotten a little higher, right up against the upper glass-house. The cinders and rubbish are thrown out below there, and washed away. There may be some broken glass in it, a little. About the general quantity that there is in coal arks, in those I have spoken of. I cannot vsay at what time in the night the dam broke, but when I got up the next day I saw it. Saw the arks there the day before; had been there two or three days. They remained six to eight days, during which time I saw the fishermen haul their boats over—sometimes on the Dr.’s fiats.”</p> <p>Michael Dyott, sworn.—“ I saw the arks: in May or June, the fresh. The water came down with tremendous force. Saw two lines of arks,' lying across the creek. Saw the plank. Several large logs drove down against them. The water came with a tremendous force and was forced over the flats, and took away a prodigious quantity of soil. Have been there a little more than three years. Broken pots are not thrown away; we work them over again; they are of too great value. Every broken pot is worth four dollars.- The ground has washed away as - much as five or six feet between the two glass-houses. Had mud put on the point.”</p> <p>Benjamin Moore, called again by defendant.—“ At the same time that I took the course before, I took the course of the creek from the bridge to the bar, and it was south two degrees west. The distance from the bridge to the north side of the pier is 520 feet. The first coprse of the creek from,the pier upwards is north thirty-five degrees east, as near as I could direct the sight. The course above the bridge, about the same range as below the bridge. From the station I took to the head of the pier, is south fourteen degrees west. Where the creek runs under.”</p> <p>In the course of the trial, the defendants offered in evidence an old draught, purporting to have been made by Lewis Evans, before the revolution, showing the course and situation of the creek, and the boundary of the adjoining land; the following testimony having been givenin relation to it. The admission ofthis draught was objected to on the part of the plaintiff, but it was received by the judge, who at the same time expressed great doubt as to the propriety of admitting it. •</p> <p>Benjamin Moore, affirmed.—“ I am professionally a surveyor; live in Green street, Northern Liberties; one of the regulators of the Kensington District. 'I am well'acquainted with this plan, Lewis Evans’. We use it frequently in the surveys we make in the District. The District, incorporated, extends from Hanover street to Norris’s line, beyond Gunner’s creek.”</p> <p>Joseph P. Norris, affirmed.—“ Lewis Evans was a surveyor here formerly. I believe he made a map of the middle colonies. I suppose he resided in Philadelphia. I have had in my possession surveys made by him. I do not recollect whether I have now or no.. That I alluded to was part of the township of Norriston, which I gave up to my brother. I have seen his hand-writing. This signature is very much like his writing on the draft that I mentioned. I presume he is dead. I believe he died in-prison in New York. The owners of the ground along Gunner’s run, are sometimes assessed. Never .knew this draft referred to. We had one made in 1770 ; I delivered it up about a year ago to John C. Browne. I mean the owners of the ground above. Browne was an owner above, and his father before him. William Ball was treasurer of the Gunner’s Run company. I was for a time; and John C. Browne. He lived in Kensington. I have the papers, a number of them, of the late Isaac Norris. This is a paper, copy of an original in my possession. I had no personal acquaintance with Lewis Evans. I imagine he died before I was born. I imagine about 1760 or 1765.”</p> <p>Ephraim Haines, affirmed.—“I believe that this is the same paper, that I received from John C. Browne, subsequent to this controversy, and took to the office. I think very soon after the suit commenced.”</p> <p>Joseph Watson, affirmed.'—“ This book being in the possession off the Lehigh company, I returned it to Mr. Browne, and again asked for it and received it, and placed it in the hands of Mr. Scott. I am' president of the company.”</p> <p>Benjamin Moore, called again.—“ The regulation of part of the-District has not been made. It is now going on. The other surveyor is taking another part. When he and I are together, we have referred to this survey, as the best document that we can refer to; and I know of none that we can refer to for that time, better than that. When I was appointed regulator of the district, John C. Browne was president of the corporation. He told me that he had a plan. George F. Kremmell’s plan adopted by the court. It appears to be nearly a copy of it. I do not know of any public act of the corporation adopting this plan. John C. Browne lent me this plan to take a copy of it. I made a copy of it. I was appointed by the commissioners.”</p> <p>At the close of this evidence, the following agreement was entered into by the counsel: .</p> <p>“ That the verdict of the jury shall be given for the defendants; under the charge of the court that the title of the plaintiffs commences-at high water mark, on the fast-land, without prejudice to the rights of either party, or inference from, the finding of a jury. The court to have the power on the judge’s report of the evidence, to decide any question of fact or to order a new trial: and all other questions of law to be considered as reserved.”</p>

<p>The first three of these actions were tried together, (by consent) before Sergeant, J. at a Court of-Nisi Prius, held in Philadelphia, on the 18th of November, 1836. The fourth case was tried before Rogers, J. at a Nisi Prius-in Philadelphia on the 30th of November, 1836. A verdict was rendered in each case for the plaintiffs ;• and they now came before the cotirt on a motion for a new trial.</p> <p>The first suit was brought by Joseph. Wood, Thomas Wood, ■ Thomas Bowman, and Richard C. See, trading under the firm of J. & T. Wood & Co. against John Connell, Francis Worley, and Thomas Welsh, copartners under the firm of John Connell & Co.; the second suit was by Durden B. Carter; the third by Samuel Bell and Henry Sterling, trading under the firm of Bell and Sterling; and the fourth by Thomas Meredith and Edward Spencer, who survived Thomas Mummy, late trading under the firm of Mummy, Meredith and Co. against jthe same defendants.</p> <p>The actions were in assumpsit, for goods alleged to have been sold and delivered by the respective plaintiffs to the defendants. Process had not. been served upon John Connell. The other defendants pleaded non assumpserunt.</p> <p>The plaintiffs having proved the sale and delivery of the goods to John Connell; viz. by Wood and Co. on the 9th of June, 1829, by Carter on the-8th of June, 1829, by ..Bell and Sterling on the 1st of September, 1828, and by Mummy and Co, on the 3d of June, 1829, gave in evidence the following papers:</p> <p>“ Memorandum of John Connell’s situation in business, according to his representation of it, on the 1st of April, 1828, including sales made out of his stock, to the first of April, 1828:—</p> <p>Amount of stock belonging to Anderson and Co., taken by John Connell, April 1st, 1828, $9,044 00</p> <p>Amount- of goods in Philadelphia, bought by John Connell, in Philadelphia, in May, 1828, 9,959 04</p> <p>Amount of stock belonging to Anderson and Co., in the retail store, taken by John Connell, 1st April, 1828, 9,130 36</p> <p>$28*133 40</p> <p>Deduct for sales made from 1st April to August 1st, 1828, ------ 11,453 96</p> <p>$ 16,679 44</p> <p>Deduct for amount of goods sent to Cincinnati, - - - - $1,700</p> <p>Deduct for goods in the hand of auctioneer, 2,600</p> <p>- 4,300 00</p> <p>Balance on hand 1st August, 1828, - - $ 12,379 44</p> <p>“ The foregoing schedule, exhibits the" amount of goods in the hands of, and belonging to John Connell, merchant of Pittsburgh, state of Pennsylvania, on the 1st day of August, 1828; which goods, or the amount thereof, he agrees to hold subject to a co-partnership, now about to be formed between him and Francis Worley, merchant, residing in Philadelphia, and Thomas Welsh, merchant, residing in Baltimore, and trading under the name and firm of Worley and Welsh, in the city of Philadelphia; and further, the said John Connell agrees to place in the said co-partnership now about to be formed, the above amount, $12,379 44, at the rate or value of $9,000, and to be received and taken by the above named parties, at the specie value of $9,000.</p> <p>“In witness whereof, we have subscribed our names, the 1st September, 1828. John Connell,</p> <p>Worley & Welsh.”</p> <p>■ “ Articles of agreement and co-partnership entered into, and agreed upon, by John Connell, residing in the city of Pittsburgh, state of Pennsylvania, on the one part, and Francis Worley, merchant, residing in the city of Philadelphia, and Thomas Welsh, merchant, residing in the city of Baltimore, on the other part; witnesseth that the above named John Connell, of the city of Pittsburgh, and the above named firm of Worley and Welsh, of Philadelphia, have this day formed and entered into a co-partnership, to carry on and conduct the mercantile business, under the name of John Connell, in the city of Pittsburgh, and state of Pennsylvania, on the following terms: The said John Connell does agree and hereby bind himself, his heirs, executors, administrators and assigns, to place in the said concern as above named, the amount and full value of $12,379 44, of goods or merchandize, agreeable to the annexed statement: the same to be taken and held by the above named parties, at the specific value of $9,000, as a capital stock in trade: And the above named firm of Worley and Welsh, agree and bind themselves, their heirs, executors and administrators, to place in the above named co-partnership, or let remain in the hands of the concern in Pittsburgh, carried on under the name of John Connell, the amount of $2,000 out of the bill of goods or merchandize bought in the name of John. Connell, from the firm of Worley and Welsh, under date of the 26th August, 1828; and they further agree and bind themselves, to place in the above concern, or let remain out of the goods bought subsequently to the date thereof, for the concern of John Connell, the further sum of $3,000. The said $3,000, it is however agreed upon, .is not to be placed in said concern of John Connell, before the first day of July, 1829, unless it can be made convenient to the firm of Worley and Welsh: And it is further agreed upon by the parties hereto named, that on and after the 1st of March, 1829, the business of the concern, shall allow John Connell an interest of six per cent, per annum, on $7,000: and after the said Worley and Welsh, shall have placed the additional sum of $3,000 in the business, which will then make a capital stock of .$5,000, placed in the concern by them, then the concern shall allow to John Connell an interest of six per cent, per annum, on $4,000. It is further understood and agreed upon by the parties herein named, that after paying the expenses necessary or unavoidably accruing in the business, then there shall be an equal division of the profits that may or shall be made in the business; that is to say, one-half to John Connell, and one-half to Worley and Welsh: And it is further agreed by the said parties herein named, that the co-partnership shall continue to exist for the term of three years, from the date thereof, unless sooner dissolved by the mutual consent .of the partners.</p> <p>“ In witness we have hereto subscribed our names, the 1st September, 1828. John Connell,</p> <p>Worley & Welsh.”</p> <p>It was agreed that the name of the firm, Worley and Welsh, was written in both places in which it is signed in the foregoing paper, by Francis Worley.</p> <p>The statement, or “ memorandum of John Connell’s situation in business,” and the “ articles of agreement,” were written upon the same sheet of .paper: the latter immediately following the former.</p> <p>The plaintiffs also proved that goods sold by them to Connell were sent to the store of Worley and Welsh; and read in evidence, (the books having been produced upon notice,) the ledger of Worley and Welsh, at pages 467—397, &c. containing the account of John Connell.</p> <p>The day-book of Worley and Welsh, at page 78, and date of 2d September 1828, showing “bills payable,” charged to John Connell, $2,169 36.</p> <p>The sales book of Worley and Welsh, under date of 26th and 28th August, 1828, showing sales to John Connell, $4,084 29.</p> <p>John Connell’s ledger at page 71, containing account with Worley and Welsh, beginning 17th October, 1828, and ending 15th May, 1829.</p> <p>The same ledger, at page 148, containing an account with Thomas Welsh of Baltimore.</p> <p>The same ledger, pages 22, 23, 24, ‘ bills payable’ account.</p> <p>The same ledger, pages 37, 54, a profit and loss account, and .page 16, John Connell’s own account.</p> <p>The plaintiff then offered in evidence, an assignment for the benefit of creditors, dated 21st July, 1829, from John Connell to Francis Worley, preferring in the first class, Worley and Welsh, A. M'Donald, Daley and Co., William Lippincot, PI. Holdship and Son, Barnitz and Shaub, Robert Patterson, Jacob David, John Latta and Co., and John 'White and Co. The preference to Worley and Welsh, was to the extent of $11,323 22, the amount of acceptances or advances, and did not cover the further sum of $1,470, due for goods sold. The preferences to the others above named, were for the full amount of their claims.</p> <p>The counsel for Worley and Welsh opposed the admission of this assignment in evidence. Their objections were overruled, and it was read.</p> <p>The plaintiffs’ counsel next gave in evidence a correspondence between John Connell and Worley and Welsh—and letters from Worley and Welsh to Thomas Welsh, and from Thomas Welsh to Francis Worley. Also, certain entries in-John Connell’s blotter, under date of 15th May, 1829: and also in Worley and Welsh’s day-book, p. 124, 132, 144. Also, sundry drafts by John Connell on Worley and Welsh, and'one by Thomas Welsh on John Connell.</p> <p>A witness produced by the plaintiffs, proved that Welsh, who resided in Baltimore, was occasionally in Philadelphia, and at the store of Worley. ></p> <p>The defendants then gave in evidencé, the counterpart of the articles-of agreement of the 1st September, 1828, subscribed as the one already produced, on which was the following indorsements: the whole paper being in the handwriting of Francis Worley, excepting the signature -of John Connell, which was admitted, to be genuine.</p> <p>“June 1st, 1829.</p> <p>We, the subscribers, parties to the within agreement, do hereby mutually agree to revoke, annul and make void, said instrument of writing, from the date of the same, for reason of inability to fulfil the stipulations as named therein, by the parties of the first part, and the parties of the second part, having never received any part or portion of profits therefrom, and hereby agreeing to relinquish all claims to the same, it is agreed this instrument shall be null and void from its date, as though it had never existed; and it is hereby further acknowledged and declared by us, that.there never has been any contracts or liabilities incurred by virtue of it, or from a knowledge of its existence.</p> <p>In witness of the same, we have hereunto subscribed our names and firm</p> <p>' i; John Connell,</p> <p>Worley & Welsh.”</p> <p>Parol evidence was also given on the/part of the defendants, with the view of showing that no partnership existed in point of fact, at the date of the sale of the goods; and that at all events, Welsh was not privy to the agreement. Evidence was also given on both sides in relation to the presence of John Connell in Philadelphia, at the date of the alleged revocation of the articles of agreement.</p> <p>The defendants also offered in evidence the deposition of Connell, taken under a commission, with his cross-examination, which was made with a reservation of the1 right to object to the competency of the witness. The court rejected this testimony. .</p> <p>In the cases tried before, Judge Sergeant, the jury were charged in substance as follows:—</p> <p>These cases depend more on questions of fact than of law. The legal principles involved, seems to me to have been settled on former trials. The sales of goods were made by the plaintiffs, about the 8th or 9th of June, 1829, except the first sale by Bell and Sterling, which was on the 1st of September, 1828, the date of the articles of co-partnership. This presents a curious question; and if you should find for the plaintiffs, you will separate the respective claims of the plaintiffs, Bell and Sterling. The sales were made to John Connell alone; but the allegation is, that Francis Worley and Thomas Welsh were dormant partners; and if they were so at the time of the s'ales, the plaintiffs are entitled to recover. Dormant partners, when discovered, are liable. The late law relative to limited co-partnership, has altered the liabilities of partners, but it does not apply to this case. Partnership is a hazardous contract. In this, case both must be partners of Connell, to enable the plaintiffs to recover. A dormant partner may be known: he is not always!a secret partner: but the allegation of the plaintiffs here is, that it was a secret partnership intended to be concealed. The plaintiffs to prove the partnership, rely on the articles of agreement.. They are strong evidence—what the law calls prima facie evidence- They are based on certain statements annexed, arranging the terms and stipulations of the partnership; and if there were nothing else but their construction to be decided, they would be clear beyond a doubt. The articles of agreement are not prospective; they are present in their operation. Suppose the co-partnership had been prosperous, they would have bound Connell. It is said that they were fraudulently obtained, because John Connell was then insolvent, and imposed on Worley and Welsh. If they chose to trust his representations, it was their own folly. It would not render the articles void as to third persons, though it might be a good defence between themselves.</p> <p>The great and difficult points of defence, remain to be considered, and they are—■</p> <p>1. That the articles of agreement were abandoned and relinquished by the parties.</p> <p>2. That they were revoked befoi'e the sales by the plaintiffs, to Connell.</p> <p>3. That at all events, Thomas Welsh was not a party to the agreement, and therefore not a partner.</p> <p>1. The defendants allege that the articles of co-partnership were abandoned: you will inquire when, where, and why they were abandoned. There was no immediate discovery of the insolvency of John Connell. It don’t appear to have been known till after-wards. It is suggested by the defendants, that he knew he could not carry them into execution. To show that the parties acted on this agreement, the plaintiffs’ counsel has resorted to the books, acts and correspondence of the parties, from 1823 to 1829. You have heard the comments of the counsel, that it was not intended this partnership should be known; and you will examine whether all these documents and papers sjrow an interest beyond the ordinary course of dealing between vendor and vendee: a peculiar and extraordinary interest. The assignment, so far as it shows a partnership, is evidence; in any other view, it has nothing to do with it; so far as the assignment and acts under it show a partnership, it is evidence, and no further. So as to the non-production of papers, and the evidence of the defendants under oath. You will judge and determine how far the parties dealt with each other, without any peculiar motive or concert. The defendants should give clear and satisfactory evidence on this head, to show that the articles were waived or abandoned.</p> <p>2, It is alleged, it was annulled or revoked. It purports to have been done on the 1st June, 1829. As to facts previous to its execution, it is not entitled to any weight; and if objected to, would not have been admitted in evidence. As a revocation, the parties had a right to make it; and from the time the paper was executed, it is a valid revocation. We do not know when the revocation was executed. It is admitted, it was not before the 4th of June, 1829, when Connell was in Philadelphia. If the date it bears is disproved, it is incumbent on defendants to prove some other date: that has not been done: when all the evidence is given, the date is still afloat. If you can satisfy your mind, it was éxecuted before the sales, it is a good defence for the defendants; but it is incumbent on them to show it.</p> <p>3. The last inquiry is, was Mr. Welsh privy to the articles of 1st September, 1828? They purport to be-signed by Connell, Worley and Welsh, but are executed only by. Connell and Worley. One partner has no right to make a co-partnership for his partner. The other partner has a legal right to dissent, but if no such dissent appears, and we have no evidence of it, the next question is, was the partnership conducted with his approbation and knowledge 1 If there was passive privity, he is liable. If he did not dissent, did he know of it? It is not necessary to have positive evidence; you may have circumstantial evidence: it is a delicate inquiry;—did Francis Worley sign these articles without authority? Welsh lived in Baltimore; did not take an active part, but had a right to inquire and examine into the business; it was the duty of Worley to inform Welsh ofwhat he had done;, the. connection was carried on nine months; terminated by misfortunes, of which the sale at auction in February and March, 1829, was' the first symptom. As to the release, if there was a partnership, it was a palpahle fraud.</p> <p>_ The case depends on a single question, whiéh has been subdivided : you will make the -scrutiny. If prosperous, would it not have been held a valid agreement ? Clouds and doubts, hang about it. The case has been argued by counsel on both sides, with unusual care and ability, and you will determine between the parties.”</p> <p>The jury found for the plaintiffs respectively.</p> <p>In the case of Meredith v. Connell, Judge Rogers, charged the jury as follows:—“ This suit was originally brought against Worley and Welsh, and John Connell. The sheriff was unable to serve process on Connell, and the suit is now trying between the firm of Meredith and Spencer, surviving partners of Mummy, Meredith and Spencer, and the firm of Worley and Welsh. The action is founded on a partnership which the plaintiffs alleged to have existed on the third of June, 1829, the time the debt was contracted. The plaintiffs have shown that at that time J. Connell purchased goods of the plaintiffs', amounting to the sum of eight hundred and twelve dollars and thirty one cents. The suit is brought to recover that sum with interest. In addition to proof of the debt, the plaintiffs have also shown, that on the first of September, 1828, Worley and Welsh entered into articles of co-partnership with Connell, to continue for the space of three years. The articles and the signature to the articles, are in the handwriting of Worley: but admitting that Worley had authority to bind his partner, this would be sufficient evidence, prima facie to enable the plaintiffs to recover. For, although the plaintiffs, at the time of the credit, were not aware of the existence of 'the partnership, yet if the partnership did exist, the plaintiffs are liable. It is, what in law is called a sleeping or dormant partnership. The dormant partners are entitled to a share of the profits, and for this reason the law adjudges that they are answerable for the debts. It is not the actual reception of profits, that constitutes a partnership, but a capability of receiving them if made. It is no manner of consequence that J. Connell was only known in the transaction, nor is it of any weight that the firm of .Worley and Welsh received no benefit. If, therefore, you should believe that Worley and Welsh were the partners of J. Connell, on the third of June, 1829, your verdict should be in favour of the plaintiffs. i</p> <p>But the defendants contend, that they are not liable to this action.</p> <p>1. Because Connell imposed on Worley and Welsh, by false representations.</p> <p>2. Because the articles of co-partnership were never acted on or carried into effect by the parties, but were abandoned and relinquished.</p> <p>And, 3dly, Because Thomas Welsh never consented to the partnership, either before, at the time, or after the first of September, 1828; but that he remained ignorant of the partnership until his arrival in Philadelphia, in May, 1831: and that he always denied the legality of any claims on that account against the firm.</p> <p>The two first grounds of the defence exonerate Francis Worley as well as Thomas Welsh. In the third, the defendants contend, that although Worley is bound, yet Welsh is not, because Welsh was unacquainted with the transaction. It will be your duty to examine this case under these three aspects: for if the defendants are right in any one of the positions they have taken, your verdict should be in favour of the defendants. It will be advisable for you to examine the case, under the two first grounds of the defendants’ defence, with the special recollection that these grounds discharge Worley from all claims of the creditors of Connell, as well as his partner Welsh. It will facilitate your inquiries, to examine these first, because, if you are of opinion with the defendants on either of these points, there is an end of the cause; and because, if you should be of a different opinion, it must have a material bearing on the third point.</p> <p>The first allegation of the defendants, as I before observed to yo» is, that Connell imposed on Worley and Welsh by false representations. On this part of the case, the court instructs you, that fraud avoids all contracts, and if the jury believe there was fraud in the contract of the first of September, 1828, the contract is void. But fraud is not to be presumed. Every man is presumed to be innocent. until the contrary appear. The defendants must satisfy you of the fact of fraud,either by positive testimony,.or by proof of such circum stances as usually attend fraud. As proof of fraudulent concealment, the defendants rely upon a point, which they say appears, that at the time they entered into the articles of co-partnership, Connell was largely indebted, and that he did not disclose his circumstances to Worley and Welsh. This indebtedness is inferred from the deficit, upwards of twenty-eight thousand dollars, which appears in the account of John Connell. The plaintiffs have endeavoured to show how this deficit occurred, whether satisfactorily or not is for you to judge. They insist that it arose from the conduct of Worley and Welsh. But supposing the fact to be as-stated, has such fraud been shown as. will avoid this contract. When a case of a mature similar fo this was .before a former jury, I gave them this .charge. I have no reason to change the opinion, as then formed, after some deliberation. All the evidence we then Lad, and that we have now-is derived from the articles of co-partmership itself. We know not what took place at the execution of the articles, for the witne'ss if any were present, (and it is probable there were none, at any rate, there are no subscribing witnesses,) have not been produced. I' shall not now read the statements contained in the articles, but I desire' you to do so, and •to .ask yourselves, what proof is there in the cause, that these representations were not true to the letter ? I then thought, and still think, that if Connell was largely indebted' at the time, and Worley and Welsh did not choose to inquire into his circumstances, it is as much a proof of folly On their part as fraud on his. I know of no law which will compel a person to disclose his circumstances in such a case, nor can they now say there was such a fraud on the part of Connell as avoids the contract; and that they are not liable as partners particularly as between them and creditors. The nonfulfilment of the stipulations in the partnership alone would not be such a fraud as to avoid ‘the contract, so as to free a dormant partner from a debt contracted by the partners. To have this .effect, it must be such a fraud as io avoid the whole contract from .the beginning.</p> <p>2d. Ground of defence. That the articles of co-partnership were never acted on, or carried into effect, but were abandoned and relinquished by the partners.</p> <p>The defendants contend, that although they executed the articles of the 1st of September, 1828, yet that nothing further was done. That in effect, as soon as the partnership was formed it was dissolved. That at any rate, it was dissijlved before the third of June, 1829, the time the debt was contracted. If this be true, the defendants are not liable. If the parties- merely executed the articles .without more, the plaintiffs have no -right of action. If J, Connell continued to carry on business on his own account, as before, after the date of the articles, the plaintiffs cannot recover. In the case of a dormant partner, which this most clearly is, the dormant partner may withdraw without making the dissolution of the partnership publicly known. And in this particular, a dormant partnership differs from a known ostensible partnership. In the latter, notice must be .given of the dissolution, whereas, in the1 former it is not necessary. So, the law is, that a partnership formed by articles for a definite period, may be dissolved by either party, before the termination of the period. If, then, the jury should believe that nothing more was done than the mere execution of the articles of co-partnership, or that the partnership was dissolved by mutual consent, or by the will of one of the parties before this debt was contracted, your verdict should be in favour of the defendants. But if this was a subsisting partnership on the 3d of June, 1829, there is nothing in this part of the defence. And here you must remember, that the burthen of proof is thrown upon the defendants. The presumption is, that John Connell was trading for the company and not for himself alone, under the name of John Connnell, as was agreed on in the articles of the 1st September. It is not probable, that pei’sons of the intelligence of these parties, would enter into articles merely for the purpose of setting them aside. The defendants must prove negatively, that no act was done in pursuance of the articles, or affirmatively, that the partnership was dissolved before the debt was contracted. To show that nothing further was done than merely signing the articles, the defendants rely upon the books of Worley and Welsh, and J. Connell, and also upon the negative testimony of the four clerks of Worley and Welsh, who have been examined. You have heard the arguments of the defendants’ counsel, on this branch of the ease, urged certainly with great zeal and apparent conviction; yet when you recollect, that it was the object of all parties to this contract, to conceal the partnership from the world, you will agree with me in thinking, that there is not much weight in these suggestions. If the partnership had been noted in the books, or referred to in such manner as to give a knowledge of its existence to the clerks in the store, the objects of the parties would have been frustrated. It would soon have ceased to be a concealed partnership. And the observations may be applied with perhaps less force, to the correspondence of the parties, and the silence of Welsh, Worley, and Connell. This is the case of creditors, who are seeking to recover a debt from an alleged partnership, and they have a right to require that strict .proof be given that no act has been done in pursuance of the partnership. If dissolved, they have also a right to require that the defendants should give the jury some evidence from which they might be able to ascertain with some reasonable certainty when the partnership was dissolved, where it was dissolved, and how it was dissolved. If no act was done, but the articles fell still-born, as has been said, or if the partnership was dissolved at any time before the 3d of June, 1829; it may be asked, (it has been asked,) why were not the articles cancelled; or why was not some memorandum made; or why was not some person called in to witness the fact that the parties had agreed; or that one of them had determined to proceed no further in the actual or contemplated partnership ? You are the exclusive judges of the facts in the cause; but although this is your undoubted right, yet, I think it my duty to say to you; that in the opinion of the court the defendants have failed in their two first grounds of defence. It would be dangerous to the public to defeat honest creditors on the testimony on which the defendants rely on this branch of the case.</p> <p>It becomes my duty to direct your attention to the third and last point in the cause:)That Thomas Welsh never consented to the partnership, either before, at the time, or after the 1st of September, 1828 ; that he remained ignorant of the transaction until his arrival in May, 1831; and that he always denied the legality of any claim on account of the partnership. You will observe, that the court considers this as the turning point of the cause. Your attention should therefore be directed particularly to it. . The law which bears upon this part of the case, is this: One partner cannot, without the consent of his co-partner, introduce a stranger into the firm, nor can he, without his consent, make him a member of another firm. It is not' according to the course of ordinary commercial dealing, and is- not, therefore, within the scope of the general authority of a partner. But although consent is necessary, yet such consent may be shown, either expressly, (that is, from written memorandum, or otherwise,) or the consent may be implied or proven, by the acts, declarations, or conduct of the parties. I do not mean to say that it may be implied, or proven, by the memorandum or acts, declarations or conduct, of one of the parties. But it may be shown from the act of one, declaration of another, and the memorandum or conduct of the third. You must take them all together; and from the whole evidence you must decide whether, in point of fact, a partnership did exist. And here let me observe, that the defendants’ counsel have complained, not a little, that the court have admitted, what they have beén pleased to term irrelevant testimony. I know of no such testimony. ’ The whole is pertinent to some one of the three points in the cause. It is all competent testimony; and although you may deem some of it but of little weight, still, there was no reason for excluding it from your consideration. If, then, the jury believe that. Worley signed the articles of the first of September without authority—that there was no subsequent authority, and that Welsh had no knowledge of the transaction, or that if he had, he dissented from it, and refused to ratify it, the defendants are not liable. Under such ■circumstances, the objection to the recovery would cease to be a ■technical one, but would be a defence involving the substantial ■merits of the case, so far as regards Mr. Welsh. It is also a principle of law, from which we are not permitted to depart, that this being a joint suit, the plaintiffs must recover against all or none. If Welsh was not a partner, the remedy must be against Worley and Connell. But, if Welsh assented to the transaction, either before, at the time, or after the first of September, and before the third of June, 1829, or if he knew of it, at any time before the third of June, •1829, and did not expressly dissent, he is as much bound as Worley, .the other partner. It would be inequitable and unjust, that Welsh should enjoy all the benefits of a prosperous business, and should be permitted to secure himself from loss, if the business should prove •unsuccessful. The law therefore makes it his duty, as soon as he •comes to a knowledge of the transaction, to disavow all participation in the concern; and unless he did so, he is bound. And here let me observe, that if Welsh was ignorant of the partnership until .after the assignment of Connell to Worley and Welsh, his receipt of •his share of the debt due the firm of Worley and Welsh, from the •firm of Worley, Welsh and Connell, cannot affect him, as he would stand in the situation of any other creditor whom the debtor might ' think proper to prefer. But if a partnership did exist of which he was aware, it would be a highly dishonourable and discreditable .transaction; subtracting from the other creditors under false pretences the funds which ought to be appropriated to the payment of their debts. The burthen of proof in this part is thrown upon the .plaintiffs. They must prove not only the debts and the articles of .copartnership of the first September, but they must further show, that, it met the approbation of Welsh; that he assented to the arrangement, either before, at the time, or afterwards, and before the banloruptcy of Connell; or that when he became acquainted with the •transaction, he did not dissent. You will also recollect, that if knowledge of the partnership is brought home to Welsh, he must then show that he dissented. This is a peculiar case. It is not •necessary for the plaintiffs, who are strangers, to bring further proof of the partnership. From the nature of the case, this cannot be expected, for it is evident that the parties intended it to be concealed. We do not even now know how a knowledge was obtained by the plaintiffs. The fact of Welsh’s assent to the partnership or .his knowledge of it, may be inferred from circumstances. For although consent or knowledge is necessary, yet this, as has been before observed, may be shown either directly, or it may be inferred from the acts, declarations, or conduct of the parties. You, gentlemen, are bound to form your conclusions from the whole evidence, from the entries in the books of one or all, the declarations of another, and the acts, declarations and conduct of one and all of the parties to this contract. A written authority is not necessary-. The third point, as has been already observed, is based on the supposition, that Worley was a partner of Connell until the dissolution of the partnership, by the insolvency of Connell, in July, 1829. ■Taking this then, as conceded, the plaintiffs’ counsel insist, that Mr. Welsh must have known of the existence of the partnership before July, 1829. They say, that it is highly improbable, that Worley, who was an honest man, would have engaged in so important a concern without a previous understanding with Welsh. That it does not appear who were present when the articles were executed. That Welsh may have been present for aught that appears. They say that it is still more improbable that Worley would have withheld a knowledge of it from Welsh until May, 1831, or even until July, 1829. That this is attributing to Worley such imprudent and culpable dishonest conduct, a moral forgery, as would have led to an immediate dissolution of the partnership. But that Notwithstanding all this, the partnership of Worley and Welsh still continues without any apparent abatement of confidence on .the part of Welsh in the fidelity and prudence of Worley. They also insist, that a partnership was in contemplation before Connell left Pittsburgh. That Welsh was desirous that Wo.rley should extend his business. That in pursuance of this understanding, Connell come on to Baltimore prepared with his statement; that he then saw Welsh, and that he' afterwards went to Philadelphia and concluded the arrangement with Worley, who signed the articles as he supposed he had power to do, for himself and partner. That Connell was again in Baltimore on the 5th of September: he must have then informed Welsh of the-whole arrangement. That Connell, immediately after he arrived at Pittsburgh, drew, riot on Welsh and Son, but on Thomas Welsh. That the defence impeaches the honesty as well as the prudence of Worley. The force of these suggestions is well worthy your serious consideration. The plaintiffs’ counsel also say, that Mr. Welsh is presumed to be acquainted with the business of the firm of which he is a member. That he had access to the books and other papers, belonging to the firm, which he did or might have examined. That an examination must -have shown him, that the account of Com nell had been closed, and a balance struck on the first of September that immediately afterwards, Connell’s accounts had swelled from a comparatively small sum to upwards of $13,000 ; that the drafts- and acceptances by the firm for Connell, of which the plaintiffs contend, Mr. Welsh must have been aware, were also of such an amount, as plainly to indicate some change in the relation of Connell. That this must have led to some inquiry by Mr. Welsh, of the reasons of the change. To this the defendants have replied, that Welsh did not examine the books. That he had no opportunity to examine them, not having been in Philadelphia about this- time. Of these different allegations, you are the proper judges. The plaintiffs also insist, that Welsh’s own acceptances show a knowledge on his part. That these transactions took place without compensation, and are not in the usual course of business. But this the defendants deny, and say, that it is usual for merchants in the city to accept the drafts of their country customers without any compensation. The plaintiffs also say, that while Connell was drawing on Worley and Welsh, in Philadelphia, they were sending on their drafts on Connell to Pittsburgh, to be discounted. That there was a mutual accommodation between them, arising from the connection between them as partners. The plaintiffs and defendants’ counsel have both appealed to the books and the correspondence between the parties. The defendants say, that not a word is said in either about the alleged partnership. That it is natural, that if a partnership did exist, there would be some reference made, or mention made of it. To this however, the plaintiffs reply, that the very object of the parties was concealment, and that the correspondence particularly between Worley and Welsh and J. Connell, shows something more than the ordinary relation of debtor and creditor. That the firm of Worley and Welsh, not only furnished goods from their own stores, but that they were in the habit of purchasing goods at auction and elsewhere, and forwarding them without orders to Pittsburgh. That on various occasions they manifested more than ordinary interest in the success of Connell’s business; and used language to him in one letter, which a merchant would not venture to use to his customer. The plaintiff also relies on certain expressions used by F. Worley, in his letter of instructions to the confidential agent in Pittsburgh. The plaintiff also complains, that the annual statements, and some part of the correspondence between Worley and Welsh, and between W. and W. and their clerk, Durborow, have been withheld or destroyed. The parties, Worley and Welsh, have been examined, and you have heard their account of the matter; of their statement, and of the whole case, you will judge. They deny that any papers have been withheld; although it is admitted that some were destroyed, whether improperly or not you will judge. If you should believe that papers ever in existence have been withheld or improperly destroyed, the inference of law is very unfavourable to the defendants. It lays them open to the charge of impropriety and unfair dealings : to the imputation, we have a right to conclude, that if produced, they would have shown that a partnership did exist, of which'Welsh had full knowledge.</p> <p>In forming your verdict you must recollect that this is case of dormant partnership. That it was the object of the parties to conceal a knowledge of the partnership from the world. That the plaintiffs are strangers and cannot be expected, nor does the law require that they should furnish positive proof of the fact of partnership. That you must take the evidence as a whole, and not in detached parts.</p> <p>If then, on a full view of the whole case, you should be of opinion, that on the third of June, 1829, the time the debt was contracted, Worley and Welsh, and Connell, were partners, your verdict should be in favour of the plaintiffs. But if you should be of the opinion with the defendants on either of these grounds of defence, your verdict should be for the defendants.</p> <p>If you should find for the plaintiff, you will give him interest on his debt, by way of damages.</p> <p>In conclusion, let me remark, that you will throw out of view, all considerations arising from the hardship of the case, the smallness of the claim of the plaintiffs, or the consequences of the verdict to the defendants. Courts and juries are not selected to dispense favours, but to do justice. It is our duty to uphold and protect property, and to remember that the law is founded on the purest principles of morality and fair dealing.”</p> <p>The jury found in this case also for the plaintiffs.</p> <p>A motion was made for a new trial in each case. The reasons for a new trial in the cases tried before Judge Sergeant, were as follows:</p> <p>“ Because, the court admitted in evidence the assignment, dated July, 1829, and the proceedings under it from John Connell to Francis Worley.</p> <p>2. Because the court erred in refusing to admit the evidence of John Connell taken on the commission, and his exparte affidavits.</p> <p>3. Because the court erred in charging the jury.—(a) That a dormant partner need not be a secret partner, (b) That although fraud was proved to have been committed by John Connell on F. Worley, or Worley and Welsh, in procuring the contract of the 1st of September, 1828, still that it would bind the defendants in a controversy with third persons, (c) That the reason why the books did not furnish evidence of a copartnership, was, that the copartnership was intended to be kept a secret. (d) That Thomas Welsh was bound to prove his dissent from the agreement of the 1st of September, 1828. (e) In placing too much dependence on the facts of the plaintiffs, and passing over the facts proved by the defendants.</p> <p>4. Because the verdict is against law and evidence. («) There was no evidence that a copartnership had ever been carried into effect, under the articles of agreement of September 1st, 1828. (6) There was evidence that the said articles of agreement were never acted upon or carried into effect, but had been abandoned and relinquished by both and each of the parties, before the sale of the goods by the plaintiffs to John Connell, (c) There was evidence that the said John Connell had committed a fraud on F. Worley, or Worley and Welsh, in the execution of the said articles of agreement, dated the 1st of September, 1828. (d) There was evidence that the said articles of agreement had been annulled before the contract for the sale of the goods in question, (e) There was no evidence that Thomas Welsh had ever authorised the signature of Worley and Welsh to the agreement, dated the 1st of September, 1828, or that he subsequently approved of, or conformed to the same.”</p> <p>The reasons marked 1, 2 and 4, were also filed in the case of Meredith v. Connell. The exceptions to the charge of the judge in the latter case, were as follows.</p> <p>(a) “ Because the court erred in charging the juiy, that there was no distinction between a dormant partner and a secret partner, and that secrecy was an essential feature in the existence of a dormant partnership. (6) In charging the jury, that it was of no manner of consequence, that John Connell only was known in the transaction, (c) In charging the jury, that they ought to examine the case of the two first grounds of the defence, with the special recollection, that these grounds discharge Worley from all claims of the creditors of Connell, as well as his partner Welsh. (d) In charging that the first and second grounds of defence, if rejected, would have a material bearing on the third ground, (e) In referring to the existence of a previous similar case, in such a manner, as to warrant an inference as to its result. (/) In charging the jury, that if Worley and Welsh did not inquire into John Connell’s circumstances, it was as much proof of folly in Worley and Welsh, as fraud in John Connell —that there is no law which compelled John Connell to make his affairs known to Worley and Welsh, and therefore Worley and Welsh could not, in consequence of any concealment, upon these points, set up the defence of fraud, in the agreement of the 1st of September, 1828. (g) In charging the jury, that the defendants’ counsel had argued with apparent conviction, that there was no partnership, yet there was not much weight in these remarks, because it was the object of all the parties to conceal the partnership. (/«) Because the court instructed the jury, that the defendants had failed on the two first grounds of their defence, and that it would be dangerous to the public that they should succeed, (i) In charging that a positive act of dissent was indispensable on the part of Welsh* if he ever arrived at a knowledge of the articles of the 1st of September, 1828. (7c) In recapitulating and laying stress on the arguments and evidence of the plaintiffs, and passing over without comment or notice, the evidence and arguments of the defendants. (7) In directing the jury, that the defendants’ argument, that the books did not show a partnership, was entitled to no weight, because it was the object of all the parties to conceal the partnership, (m) In. placing reliance on the suggestion that Worley would not have signed the articles of agreement without the assent of Welsh. (n}, In charging the jury that the consent of Thomas Welsh to the eopartnership could be proved by the acts, declarations, memoranda, conduct and book entries of the other parties, beside himself—and in giving to the jury too wide a scope in drawing the conclusion of partnership against Welsh, in the absence of any proof of the special authority proved by him.”</p> <p>The following additional reason was afterwards filed in the case of Meredith v. Connell.</p> <p>“ Because the court permitted the concluding counsel for the plaintjffs to introduce new views of the case not taken by his colleague, and did not confine him to' a 'reply to the arguments of the defendants’ counsel, and the enforcement of the grounds taken by his colleague.” c</p>

Aw action on the case was brought in this court to July term, •1836, by James Arrott against Henry Pratt; and at this term a rule was obtained on the part of the defendant, to show cause why an order should not be made on the plaintiff to produce certain papers for the inspection of the defendant.