Volume 20 — Pennsylvania State Reports

This was an action of debt by John Gibson for use of James McCowan v. Robert M. Gibson, in the Common Pleas to September Term, 1849, on a promissory note under seal, for $50, dated April 22,1839, executed by defendant, and payable one year after date to John Gibson or order. On the trial, a deposition, offered on the part of the plaintiff, was objected to on account of mistake in the notice.

Error, to tbe Common Pleas of Indiana county. This was an action of debt by Matthew Shearer for the use of Catharine McKee v. Getty & Thompson. Before entering a rule to arbitrate, a narr. was filed stating the action to be founded on a writing obligatory, under seal, dated 16th May, 1848, for the payment of $458 in money. Arbitrators were chosen, and they awarded no cause of action. January 1, 1850, the plaintiff appealed.

This was an appeal by Thomas J. Keenan, from a decree of distribution of a balance on the account of James Keenan, administrator de bonis non of the estate of John Biggert, deceased. The question in the case was, whether the real estate of John Biggert was converted into personal estate at the death of Elizabeth Holland, who was one of his daughters.

<p>Error to the Common Pleas of Fayette county.</p> <p>This was a suit by Adam Richards, surviving John Mustard, deceased, v. Moses W. Nixon.</p> <p>The action was upon a single bill of the defendant, given to the plaintiff, dated December 12, 1840, for $230.69 for balance due them for their work, as carpenters, done to a brick house, built by defendant on a tract of land then and for many years before in his possession as his own. In 1842-3, he disclaimed title, whereupon it was, in 1843, sold as the property of his father, William Nixon, in whom the title appeared to be. Credits — May 7,1841, $40; April 1, 1842, $50.</p> <p>The summons issued June 23, 1847. Narr. filed July 30, 1847. August 2, 1847, defendant filed affidavit of defence, and pleaded payment, and payment with leave, Sfc. Same day, replication non solvit: issue and rule for trial. 1848, September, on list, continued, December, on list, continued by consent. December, on trial list. December 11, 1849, defendant added the plea of bankruptcy. It-was filed, with leave of the Court, and plaintiff excepted.</p> <p>The plea of bankruptcy set forth a discharge on 25th March, 1843, as a bankrupt, by the District Court of the United States for the Western District of Pennsylvania, under Act of Congress of August 1841.</p> <p>The allowance of such plea was the first error assigned, the plaintiff contending that it should not have been allowed after more than ttyo years’ delay and issue joined upon the pleas of payment, &c., the cause having been four times on the trial list.</p> <p>Upon the trial in January, 1851, the plaintiff gave in evidence the single bill declared on, and rested.</p> <p>The defendant thereupon offered in evidence the record of his bankruptcy above stated, upon his petition, filed June 13, 1842. It appeared from it that the Court appointed August 15, 1842, as the time of hearing, &c., on which day he was declared a bankrupt, and S. W. Black was appointed assignee. September 22, 1842, petition for final discharge. The Court appointed 8th December, 1842, for hearing. November 23, 1842, exceptions to discharge filed by A. & L. Clark. December 8, 1842, continued. On 25th of March, 1843, he was discharged.</p> <p>The defendant offered to read the final certificate of discharge. The plaintiff’s counsel objected on the ground that the time of hearing for the final discharge was not fixed by a continuance to a day certain; that is, that the 25th March, 1843, when it appears he was finally discharged, was not a day fixed for the hearing : it appearing, also, that certain persons had, before that time, objected to his discharge, and filed exceptions. The Court overruled the objections and admitted the evidence, and plaintiff’s counsel excepted. This was assigned as the second error.</p> <p>The certificate of discharge was read.</p> <p>A due-bill to John Mustard was returned for $130. Richards not noticed. A. & L. Clark returned as creditors.</p> <p>Defendants rested.</p> <p>The plaintiff now showed that he had duly served upon the defendant a notice that his discharge and certificate as a bankrupt would be impeached for fraud, and the grounds were specified. On the trial, evidence was given for the purpose of proving fraud. The deposition of William Nixon, the father, was given in evidence on the part of the plaintiff. In it he stated that in the month of March, 1842, he purchased from the defendant all the sheep he owned, &c. He stated that it was done to cancel a debt which the defendant owed him for the sheep. A field of oats, and one of corn, was also given up by defendant to the deponent.</p> <p>After the plaintiff had rested, the defendant’s counsel gave in evidence several judgments against him as surety of Foster, Nixon & Co., obtained in the spring of 1842, which were liabilities created prior to February, 1842.</p> <p>E. Bailey was examined, and testified that he paid to the Bank of Brownsville, a certain note of William Nixon for $658; that he paid it at the request of William Nixon, ¡who furnished him with the money. He further said that a judgment was given by William Nixon to H. Griffith, the endorser, for his security.</p> <p>• The plaintiff then offered to prove that E.‘ Bailey claimed to have that judgment paid out of the proceeds of sale of land of William Nixon, which was sold in 1848. This was offered, as expressed, to show the fraud of the whole transaction.</p> <p>This testimony was rejected, on the ground that it was not rebutting evidence. ‘ Exception was taken on the part of the plaintiff. This was the subject of the third assignment of error.</p> <p>The plaintiff’s counsel claimed the Conclusion to the jury, but the Court decided that the defendant’s counsel were entitled to it.</p> <p>The plaintiff’s counsel submitted several points; some of which were, viz.:</p> <p>4. That in such a case as this, it is not incumbent on the plaintiff to give direct evidence that the transfers and exchange in question were voluntary on the part of the defendant. It is sufficient if the design to hinder, delay, and defraud creditors, or any one creditor, can be fairly inferred from all the evidence in the cause.</p> <p>Answer. If the jury believe that the defendant was really indebted to William Nixon, to the amount of the property transferred to him, and that transfer was not made voluntarily and in contemplation of bankruptcy, this would not be a fraud on the Act of Congress, so as to affect the validity of the discharge. No design to hinder and delay’ creditors can be inferred by the jury from a fair transfer of property, in payment of a bond fide debt; and such a transfer could not be considered fraudulent, either under the Act sof Congress or otherwise. It is true that a transfer of property may be fraudulent under the Act of Congress, although there is no actual 'design to hinder and delay creditors, if done voluntarily and in contemplation of bankruptcy.</p> <p>5. That it was incumbent on the defendant to show that the transfers of the sheep, corn, and oats, and exchange of wagons, were made bond fide and for a valuable consideration.</p> <p>Answer. It is the duty of the defendant to satisfy the jury that the transfer of this property was for a valuable consideration and bond ,fide debt, and that defendant was indebted to William Nixon to the amount of the value of the property transferred. The Court further charge you, that if William Nixon had a present right to sue, the plaintiff must satisfy you that the transfer was made in contemplation of bankruptcy, in order to avoid the discharge.</p> <p>The Court further charged the jury as follows : “ The first inquiry was, was there a bond fide indebtedness ? If not, then there is an end of the matter. 2. If there was indebtedness,’ was the transfer voluntary and in contemplation of bankruptcy? Voluntary. We say where one has a present right of action, and property is transferred in discharge of the indebtedness, and there is no evidence as to whether the debtor made,the offer, or the creditor made the claim, it may be presumed by the jury (where the contrary would involve a legal fraud) that the demand proceeded from the creditor. In contemplation of bankruptcy. Insolvency is not conclusive of this. Assignments to creditors standing in close relationship is not sufficient evidence. The intention to prefer must be accompanied with the contemplation of bankruptcy. Where the transaction is fair, the debt meritorious, the whole of the property not disposed of, other debts paid in the usual way, and the ordinary business of the debtor pursued afterwards in the usual way; — if'the bankrupt be a merchant, and he adds new-stock ; if a farmer, and he afterwards sows and plants in the usual way — these are circumstances which fix the intention, the quo animo.</p> <p>“ The next inquiry will be, has there been actual fraud ?”</p> <p>Verdict was rendered for the defendant.</p> <p>The first section of the Act of 21st March, 1806, provides that in all cases where any suit has been brought in any Court of Record within this Commonwealth, the same shall not be set aside for informality, if it appear that the process has issued in the name of the Commonwealth, against the defendant, for moneys owing or due, or for damages in trespass, or otherwise, as the case may be; that said process was served on' the defendant by the proper officer, and in due time; nor any plaintiff nonsuited for informality in any statement or declaration filed, or by reason of any informality in entering a plea; but when, in the opinion of the Court, such informality will affect the merits of the cause in controversy, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence on or before the trial of the cause; and if, by such alteration or amendment, the adverse party is taken by surprise, the trial shall be postponed until the next Court.</p> <p>Error was assigned to the admission of the plea of discharge in bankruptcy. 2. To the admission in evidence of the certificate of discharge. 3. In rejecting the evidence referred to in the bill of exceptions. 4. In allowing to the defendant’s counsel the conclusion to the jury. 5 and 6. To the answer to the fourth and fifth points on part of plaintiff. 7. To the further charge of the Court.</p>

<p>Error to the Common Pleas of Beaver county.</p> <p>This was an ejectment by James E. Mcllroy and wife, David Patton and wife, Jane Jordan, and others, v. John and Thomas Sheik. The action was to March Term, 1850, and was for a tract of land containing fifty acres or thereabouts, bounded by lands of the plaintiffs on the north and west, of Robert Stoddart on the south, and of John Sheik on the east, being part of a survey called “Shrewsbury.”</p> <p>The plaintiffs below claimed as devisees under the will of William Jordan, deceased, and on the trial of the cause endeavored to deduce title from the Commonwealth to the testator. For this purpose, they offered and gave in evidence —</p> <p>A patent to Dr. John Morgan, dated June 7, 1785, for a tract of land called “Shrewsbury,” containing 300 acres and allowance.</p> <p>An official copy of a survey of the “ Shrewsbury” tract, dated March 17, 1785, on a warrant dated December 27, 1784.</p> <p>Deed from Dr. John Morgan, to Elizabeth Newman, dated June 21, 1785, for the whole tract.</p> <p>Power of attorney from William Newman and Elizabeth Newman, his wife, to Henry Newman, dated October 15, 1810, authorizing him to sell, &c., with the power of substitution; also, a substitution appointing Presley Neville, of Pittsburgh, in the place of Henry Newman. The power of attorney and substitution were admitted under objection and exception taken by defendant’s counsel; but as the deed made in pursuance thereof was rejected by the Court at a subsequent stage of the trial, the admission became immaterial.'</p> <p>A deed from Presley Neville, attorney in fact, to James Jordan, dated June 9, 1813, was offered by plaintiffs, objected to by defendants, and rejected by the Court.</p> <p>The plaintiffs being therefore unable to proceed with the chain of title thus commenced, after calling some witnesses to prove when William Jordan came upon what was called the “Shrews-bury” tract to reside, then offered in evidence a deed from William Henry, sheriff of Beaver county, to James Jordan, dated February 3, 1806, for 200 acres of land on Flougherty’s Run, purporting in the deed to have been assessed and sold as the property of John M. Stillman, for the county taxes of 1800-1 and 2, and for the road tax of 1803.</p> <p>To support this offer of the sheriff’s deed, the plaintiffs offered and gave in evidence the duplicate of Moon township, No. 1, for the year 1808, showing an assessment for county rates and levies on the list of unseated lands, in the following words and figures, to wit:</p> <p>John M. Stillman and adjoin- I No. of acres I Valuation I Dollars 1 Cents ing James Jordan. | 200 | | 300 | 90</p> <p>Without showing more, the deed was admitted by the Court, and read in evidence. And in support of the deed the only additional evidence offered was a surplus bond, dated May 5, Í806, for $25.60, filed June 8, 1806, and signed by James Jordan. No evidence being offered to show any authority for the sheriff to sell, nor any compliance with the law in regard to selling unseated lands for road taxes.</p> <p>The plaintiffs, having given in evidence the duplicates of Moon and Hopewell townships for a series of years, to show the number of acres variously assessed in the names of James and William Jordan, and the assignment of the sheriff’s deed, by James to William Jordan, dated Sept. 20, 1808, then called a number of witnesses to fix the lines of the “Shrewsbury” survey; gave in evidence the will of William Jordan, deceased, and proved themselves to be the devisees therein mentioned.</p> <p>The defendants offered and gave the following evidence:</p> <p>Application of William Wusthoff, dated July 1, 1785, for 400 acres of land — improvements made in 1770. Warrant to William Wusthoff, dated October 17, 1785, for 400 acres of land. Official copy of survey made on same, dated October 17, 1785, called “Strabane.” Patent to James O’Hara, dated March 3, 1T89, for the same. Will of James O’Hara, dated September 15, 1819. Deed from the executors of the will of James O’Hara, to David Harper and Hamilton Giles, dated June 10, 1823, for(193 acres and 134 perches of said tract. Deed from David Harper and wife to Hamilton Giles, dated August 16, 1823, for their interest in 118 acres and 93 perches of the same. Deed from Giles and wife, to John Bolen, dated December 1, 1828, for 118 acres and 93 perches, as described in the deed of Harper and wife to Giles. Deed from John Dolen and wife, to Samuel Hood, dated April 12, 1883, for part of the tract, to wit, 95 acres and 137 perches, Deed from Samuel Hood and wife, to John Sheik (one of the defendants), dated April 1, 1835, for the same, which embraced the land in dispute.</p> <p>A number of witnesses were then called to prove that the lines of the “Strabane” or O’Hara survey were well marked on the ground, and corresponded in age with the date of the official survey. Also to prove that John Dolen had gone into possession of the land long previous to the date of his deed from Giles and wife to him, which hears date December 1,1828, and describes his possession by fixed courses and distances, and defined boundaries; and that he occupied and claimed from and after the 1st December, 1828, according to the lines described in his deed.</p> <p>Gilmore, J., charged the jury, inter alia, as follows :—</p> <p>“ The plaintiffs have shown a good title and a right to recover, unless the locality in dispute is not comprehended in their tax deed, or it is otherwise defective; or they are barred by the statute of limitations. The tax deed to James Jordan is dated 3d February, 1806. The assignment from him to William Jordan is dated 25th September, 1808.</p> <p>“This deed is for 200 acres of land in Hopewell township, assessed as the property of John M. Stillman, and for taxes of the year 1800,1, 2, and 3.</p> <p>“The only assessment proved was for the road-tax of 1803. The sale-was for $38, and there is a surplus bond for $25.69, dated May 5, 1806, and marked, filed 8th June, 1806. As to the identity of the land assessed, with that patented to John Morgan as 300 acres, and called ‘ Shrewsbury,’ you have first the evidence of Mr. Potter, one of the Commissioners of the county, that he could find no assessments for Hopewell township earlier than the year 1803; also of Mr. McCallister, who says that Hopewell township was formed during the last war. Daniel Leieh says the ‘ Shrewsbury’ tract went by the name of the Stillman tract. This, then, in connection with the fact that no tract in either Moon or Hopewell was assessed as the Shrewsbury tract, would be, perhaps, satisfactory to the jury, that the tract assessed in the name of John M. Stillman was the Shrewsbury tract. The fact that the assessment is made for but 200 instead of 300 acres, may be accounted for by the evidence of such witnesses as Rpbert Hood and others, that the father of Robert Hood purchased, at an ea.rly period, 100 acres off the Shrewsbury tract. It is true, some of the witnesses are unable to say when the purchase was made precisely. Leich recollects that Hood was there as early as 1810. The lines are found separating the 100 acres from the other portion of the tract, and it appears to have been assessed to Hood as early as 1802. It is further in evidence, that the duplicates containing the assessments cannt be found in the office prior to 1802.</p> <p>“ It does not appear by what authority the 100 acres was stricken off to Hood; but we are of opinion that a transaction so ancient as this was, and not questioned for fifty years, is sufficient from which to presume authority. This, then, would validate the assessment. It is not questioned but that the title is, and was out of the Commonwealth. And as to the 200 acres assessed, they must be considered as unseated, unless some other person than Hood was in possession of the tract; and if there was, we have failed to perceive the evidence.</p> <p>“ Many things required by the Act of 1804, under which the sale was made, have not been complied with, and one in particular has been complained of by the defendants — that there is no evidence that the sheriff had any warrant to sell. But we are of opinion that if the jury believe that the land was unseated, the title out of the Commonwealth and that an assessment was made, all pther irregularities or omissions are cured and barred after the expiration of five years from the sale, if the purchaser, or his assignee, or those claiming under them, were in possession for that length of time. The evidence is that William Jordan, according to the recollection of Leich, tools possession as early as 1810; in this he is corroborated by the assessments. James Jordan is assessed as early as 1806, 7, and 9. It also appears that this possession has been continued ever since. Dolen did not come on earlier than 1829, according to the evidence.</p> <p>“ The next, and perhaps the most important inquiry for the jury, will be, whether this land is covered by the Shrewsbury survey.”</p> <p>The Court, explained the general principles which govern with respect to surveys, and referred to portions of the evidence as to the surveys.</p> <p>“But the .defendants say if the jury should find against them on every other point, still they have a, good title by virtue of the statute of limitations of 1785.' How is this? Jordan went into possession in 1809, and has been in possession ever.since. It is probable from the evidence that Dolen took possession in the year 1829. He is first assessed in 1880; this suit was brought in the beginning of 1850; Dolen’s article is dated 1st December, 1828; so that [if he was in possession 21 years before the bringing of this suit, it is as much as can be said. But if the plaintiffs were in possession before this, claiming the whole, and their title was perfect before Dolen entered, the defendants would be confined in their defence to the part enclosed or cultivated for 21 years before the bringing of this suit. As to the part, if any, cleared or enclosed more than 21 years before the commencement of this suit, we have no evidence of either its position or quantity; no surveyor has marked it, no witness has designated it with certainty, no evidence was offered to you from which you could form or dictate any description. If therefore you find for the plaintiffs it must be general;■ and if they choose to take possession of any improvement made more than 21 years before this suit was brought, the defendants may regain possession by bringing ejectment against them.”]</p> <p>November 25, 1851, verdict was rendered “for the plaintiffs.”</p> <p>It was assigned for error, 1. That the Court below erred in charging the jury that “ the plaintiffs have shown a good title, and a right to recover, unless the locality in dispute is not comprehended in their tax deed,” and “ that if the jury believe that tho land was unseated, the title out of the Commonwealth, and an assessment was made, that all other irregularities or omissions are cured and barred after the expiration of five years from the sale, if the purchaser or his assignee, or those claiming under them, were in possession for that length of time.”</p> <p>2. Error was also assigned to the portions of the charge last before recited, and enclosed in brackets.</p>

<p>Error to the Common Pleas of Clarion county.</p> <p>This was a feigned issue directed by the Court between James E. Breading and George E. Arnold, as surviving partners, and various other creditors of Alexander & Mcllroy, as plaintiffs, and John H. Boggs, as trustee of William Elliott, and others, defendant.</p> <p>The issue was directed in the Court below to try whether the judgment to December term, 1850, in favor of John II. Boggs,, trustee, v. Alexander & Mcllroy, was fraudulent and void as to plaintiffs, or in violation of the provisions of the Act of 17th-April, 1843, and the proviso of the 4th section of the Act of 16th. April, 1849, in reference to assignments.</p> <p>Henry Alexander and James G. Mcllroy, partners, iron masters in Clarion county, confessed a judgment to Jacob Painter Co., for the sum of $7934.90, which was entered on the 6th December, A. d. 1850, in the Common Pleas of Clarion county. Upon this judgment a writ of fieri facias was issued on the sixth December, 1850, and all the personal property of the defendants was levied upon and sold by the sheriff, on the 8th of January, 1850, for the sum of $2179. Under the same writ of fi.fa. the defendants, Alexander & Mcllroy, having waived inquisition, the sheriff levied upon and sold, on the 4th day of February, 1851, the real estate of the said partners for the sum of $11,300.</p> <p>These sums, amounting to $13,479, were brought into Court for distribution, and so much of the fund as was applicable to the judgments prior to that of the plaintiffs in the issue, was distributed by order of the Court. The balance remained in Court to await the decision of the feigned issue.</p> <p>The judgment in favor of John H. Boggs was entered on the first day of January, 1851. The judgment in favor of Logan, Wilson & Co., who were some of the plaintiffs in the issue, was entered on the 4th January, 1851; that of Breading &' Arnold, and others of the plaintiffs, were entered on 17th January, and others on the 24th January, on awards of arbitrators.</p> <p>The judgment in favor of Boggs was entered in pursuance of a bond of Alexander & Mcllroy, dated 25th December, 1850, containing authority to confess judgment. In the bond Boggs was not called trustee, but he was so styled in the narr. and in the docket entry of the judgment. Before the entry of the judgment in favor of Boggs, the plaintiffs in the issue had brought suits, and rules to arbitrate were entered.</p> <p>A declaration of trust, dated 30th December, 1850, was executed by Alexander, Mcllroy and Boggs, in which it was stated that Alexander & Mcllroy were justly indebted to certain persons, who were named, exceeding fifty in number, in amounts stated, and amounting in all to about $8074.86, which was stated in the bond as the amount of the indebtedness. It was also stated as agreed upon between the parties, that the bond in question was to be held by Boggs in trust for the creditors named in the instrument ; and it was provided that if the fund were insufficient to pay the claims of all of them, each one was to receive in rateable proportion.</p> <p>On the 25th April, 1851, the bond and declaration of trust, being on the same paper, were filed in the case of Boggs. The declaration was not recorded.</p> <p>In the counter statement, the deposition of H. Alexander was stated, and he testified, inter alia, that their home creditors, including the furnace hands, farmers, and others, renewed their applications for judgments or the money; that he proposed to put them on an equality by giving a general judgment for the benefit of them all. He further testified that when he made the proposition he did not know whether Breading et. ah, and other Pittsburgh creditors, whose claims had been forwarded for collection, had obtained judgments or not, but before the bond was signed he learned that judgments had not been obtained for them.</p> <p>He further stated that at the time the judgment bond was signed by himself and James G. Mcllroy, he did not know that Alexander & Mcllroy were in insolvent circumstances, but then believed that if the property of the firm could be sold or disposed of for its real value, it was sufficient to pay all their debts; and it was his opinion at that time that all their creditors were secure upon their property, and that all would eventually be paid. He further stated that the judgment bond by Mcllroy and himself to John H. Boggs in trust, was not given for the purpose of hindering, delaying, or defrauding the plaintiffs, James E. Breading and others, or any other of the creditors of Alexander & Mcllroy, or defeating their claims, but with a view to secure the persons, in whose favor said judgment bond had been entered, their just claims, and to save costs by avoiding numerous suits or separate confession of judgments.</p> <p>The counsel for the plaintiffs in the issue contended in the Court below:—</p> <p>That the declaration of trust not having been recorded or filed till the 25th day of April, 1851, the bond and judgment thereon were void as to plaintiffs.</p> <p>That, Alexander & Mcllroy knowing themselves to be in failing circumstances, at the time of signing the bond in favor of Boggs, and intending thereby to prefer certain creditors to the exclusion of the plaintiffs, the judgment was void as to the plaintiffs.</p> <p>That the bond and accompanying declaration of trust, upon which the judgment was entered, operated as an assignment of the balance of the funds of Alexander & Mcllroy, and were intended so to operate, and not being recorded, the judgment was void as to plaintiffs.</p> <p>Galbraith, J., inter alia, charged the jury</p> <p>“ The judgment of Boggs was entered on the 1st of January, 1851, and those of the plaintiffs in this issue were obtained on the 17th of January, 1851, by award of arbitrators; and they claim, that the balance of the money, not distributed, should be paid a.nd applied on their judgments, and hence have attacked the judgment of Boggs on two grounds: 1. That it is fraudulent as against subsequent judgment-creditors; and 2. That it is in violation of the provisions of the Acts of 17th April, 1843, and the proviso of the 4th section of the Act of 16th April, 1849. This is denied on the part of Boggs, who stands as trustee for some fifty-two creditors of the firm of Alexander & Mcllroy, according to a declaration of trust written on the same paper with the bond, and is said to have been executed at the same time, although bearing date five days afterwards, to wit, the 30th of December, 1850. The judgment was entered up by a declaration upon it filed the 1st of January, 1851; and the bond itself, with the declaration of trust accompanying, was filed on record on the 25th of April, 1851.</p> <p>“The first branch of the issue involves the consideration and the fairness of the judgment in favor of Boggs, or in other words, whether the judgment is fraudulent and covinous in fact; whether the debts which it professes to cover are honestly due by the firm of Alexander & Mcllroy to persons named in the paper attached to the bond, called the declaration of trust. This part of the issue does not seem to be insisted upon, on the part of the plaintiffs.” “ The next branch of the issue is—</p> <p>“ Whether that judgment is in violation of the provisions of the Acts of 1843 and 1849. This involves the legal construction of those Acts of the Legislature, and is more a question of law than of fact in this case. ■</p> <p>“In order to understand properly the provisions of the Act of 1849, it is necessary to keep distinctly in view the subject to which it relates, to wit, the subject of assignments for the benefit of creditors. That there is much obscurity in the proviso to this 4th section is apparent.” He supposed it was “the result of the operation of more than one mind. To one the idea of preferences to creditors releasing was prominent, and the effort in the first part of the section is to avoid the effect of any condition for release: to the other that of really securing what was not in danger, that is, the lien of a bona fide judgment, and is contained in the form of a proviso, not really appropriate to the section in which it is inserted, but to the original law of 1843, which was evidently what was in the mind of the draftsman of that proviso. It was certainly not intended to depart from the subject-matter of the first part of the section, to wit, that of assignments for the benefit of creditors.</p> <p>“Was this judgment-bond then an assignment of itself? This would involve a perversion of language. By an assignment, the assignor parts entirely with his dominion over the property assigned — his right to possession or control over it. In the confession of a judgment he does neither until it is taken out of his possession by an execution and sale.</p> <p>“ The judgment was entered on the 1st of January, 1851, in the usual way, by an attorney, in virtue of the warrant of attorney. On the. 25th of April the paper was filed, indicating the - persons to whose use the moneys should be applied. The plaintiffs’ second point asserts that this would avoid the judgment as against the plaintiffs whose judgment was obtained in the mean time, to wit, on the 17th of January, 1851. To this we answer in the negative — that it was not a matter of any concern to the plaintiffs, provided the debt was justly due and Iona fide, to whoso use it was marked on the docket.”</p> <p>“Ikq fourth point of the plaintiffs is that the judgment is void without the assent of the persons to whose use the money was marked. To this we dissent. The express assent of the persons for whose benefit the judgment was confessed was not necessary to its validity. It being for their benefit, their assent would be presumed, in the absence of all evidence showing any dissent on their part.”</p> <p>May 3, 1852, verdict was rendered for defendant, and on May 8, judgment entered and distribution decreed, the same to be delayed for three weeks.</p> <p>Error was assigned to the charge.</p>

Error, to the Common Pleas of Hrie county. This was a case stated between the School Directors of the West Ward of the city of Erie v. N. Blickensderfer. It was stated for the opinion of the Court below, in order to have determined the question, whether or not “ moneys owing by solvent debtors”' are taxable for school purposes.

This was a scire facias on a judgment obtained by The Monongahela Bank of Brownsville v. William Baily. It was issued for the use of Basil Brownfield, against Baily, the defendant. The suit in which the judgment was obtained was brought to June term, 1841, on a promissory note for $1500. April 5, 1841, judgment was entered for $1580.63.

This was a feigned issue directed by the Court, in which George A. Lyon and David K. Turney were plaintiffs, and Hampton, Smith & Co. were defendants. George A. Lyon had a judgment against John Lyon entered on 31st August, 1849; Turney had a judgment against John and Jacob B. Lyon entered on 24th July, 1849; and Hampton, Smith & Co. had a judgment entered previously, viz., on 15th June, 1849, against John and Jacob B. Lyon.

<p>1. Ignorance of duty on the part of the guardian, through which the interests of the minor have suffered, is within the definition of misconduct, and is a ground for his removal.</p> <p>2. The provision in the Act of 29th March, 1832, that persons of the same religious persuasion as the parents shall be preferred by the Court in their appointment of guardians, should be observed when practicable; but a difference of persuasion is not a ground for the discharge of a guardian, if no constraint is put upon the conscience of the minor, or the impressions made by the parent on the mind of the child attempted to be erased.</p> <p>3. That the decree of removal was confined to two of five wards, is not a proper ground of complaint on the part of the guardian; or that he was directed to pay his own costs. ■ '</p> <p>4. On appeal by the guardian alone from such a decree, this Court, on the application of the complainant, will not remove the guardian from his appointment as to the other minors. Besides, where there has been a hearing in the Court below, and a decision on the merits, the decree will not be altered in this Court for anything short of palpable injustice.</p>

This was an ejectment by John Brownfield v. Isaac Brownfield, for about 30 acres of land in Union township, Fayette county. . The. dispute arose on the construction of the will of Thomas Brownfield. It was dated 3d September, 1814; proved 14th October, 1815.

This- was a.n action of ejectment by the Society of United Brethren, for propagating the Grospel among the heathen, v. Luke Thayer, for about twenty acres of land.

Error, to the Common Pleas of JErie county. This- was a feigned issue directed in April, 1852, by the Common Pleas of Erie county, between Monroe Hutchinson, as plaintiff, and John McClure, S. C. Marsh, and A. Freer, as defendants. It was -directed to determine the right to a part of $4280.52 raised by the sheriff of Erie county, out of certain personal property of Squire Hall, on execution against him, in favor of McClure and others.

This was an appeal by William Piper from the decree of the Court, removing him as trustee under a deed of trust, dated the 9th March,. 1849, by which John George Woods and Mary Ann his wife, conveyed to the said William Piper certain real estate in trust.

In each of these cases, five viewers had been appointed by the Court of Common Pleas of Allegheny county, to view the premises and assess… Held: that the declaratory Act of 1844 was not unconstitutional; and that a company under a charter to make a lock navigation in a public stream, has not the same privilege as a riparian owner, but must pay for all damage done to the property of others, w'hen required so to do by the terms of its charter; and injuries resulting from the…

This was an action of trespass quare clausum fregit, by Alexander S. Porter v. James McGinnis, Robert McGinnis, and Robert McGinnis, Jr. Alexander S. Porter brought this action of trespass quare clausum fregit, &c., in the Court of Common Pleas of Clarion county to May Term, 1849, against James J. McGinnis et al., for breaking and entering the enclosure of said Porter, “ that is to say, a certain enclosure situate in the township and county aforesaid, and bounded on the…

Error, to the Common Pleas of Washington county. This was an action brought to August Term, 1847, by Daniel McCoy v. William Danley. It was an action on the case for the continuance of a nuisance. After the suit was brought, William Danley died, and his administrators were substituted.

<p>Error to tbe Common Pleas of Allegheny county.</p> <p>This was a proceeding by Michael Thomas v. The Perrysville and Zelionople Turnpike or Plank-Road Co., under the Act of incorporation of 5th April, 1849 {Acts, p. 402), and the 9th section of the Act of 14th May, 1850 {Acts of 1851, p. 854), to recover damage done by the location of the road through the farm occupied by Thomas. The company was incorporated under the Act of 5th April, 1849, subject to the provisions and restrictions of the Act of 26th January, 1849, regulating turnpike and plank-road companies: Acts, p. 10, &c. To this latter Act a supplement was passed, which was approved on the 7th April, 1849. The second section of the supplemental Act allowed an appeal from the assessment of the freeholders to the Court of Common Pleas.</p> <p>On the trial of the appeal in this ease, it was proved, on the part of Thomas, that he was a tenant of the land in question, and that his lease had two years to run from 1st April, 1852, and that the road run 75 rods through the land.</p> <p>A witness, called to testify as to the amount of damage, was objected to on account of his having been a viewer in the case; .also, objection was taken to plaintiff’s proving any damage done, ' inasmuch, it was alleged, as his remedy was against his landlord. The witness was admitted.</p> <p>Another witness was objected to as being one of the owners of the land. His admission was excepted to. He testified that the rent of Thomas was $400.</p> <p>Several points were submitted on the part of the company, as follows:</p> <p>1. That the plaintiff, being a mere tenant or occupier of the land through which the defendants’ road passes, is not entitled to recover for the cost of any new fence which might be required by the diversion of the road from the old line; the remedy therefor, if any, belonging to the owners of the soil, and not to their lessee.</p> <p>2. That, if the tenant is entitled to any allowance on the footing of the necessity of fencing to protect his crops, it is only to the extent of the value of the fenees upen the old road, or the eost of their removal; or to such a proportion of the value of the new fences, as the term of his lease from the time of the entry by the defendants would bear to the whole duration of a new fence.</p> <p>3. That, if the amount of land taken in consequence of the deviation, is less than the amount restored by the abrogation of the old road, the tenant has not sustained injury thereby for which he is entitled to recover, and that if he is entitled to recover by reason thereof, the annual value of the land, or the reasonable rent thereof, would be the measure ef damages therefor.</p> <p>4. That the plaintiff had a right, under his lease, to move the old fence from that part of the road which is now superseded, and to cut or take from the land the amount of timber which would be required to make the said fence reasonably sufficient for the purpose of protecting his enclosures.</p> <p>5. That the tenant being evicted from the possession of the land occupied by the new road, by title paramount, has a right to an abatement ef the rent to the extent" of the loss.</p> <p>M’Clurb, J., in reply to the first point, charged:—</p> <p>“The plaintiff is entitled to damages for his actual expenses in repairing, moving, or making fences. Plaintiff is a tenant, and all is disadvantage in his case.</p> <p>“ 2. The Court charges negatively, and the jury may deduct what he can get for his fence, however, when he has ceased, by the termination of his lease, to use it.</p> <p>“ 3. The restoration of the old road may he estimated .as an offset to the damage done by taking the new one. You will consider whether the old road is worth reclaiming ,at .all for the time he could use it.”</p> <p>Th.e fourth point was affirmed. To the fifth the Court charged negatively, adding that the eempany was not liable as a trespasser, but for damages.</p> <p>Verdict was rendered for plaintiff for $100.</p> <p>Error was assigned to the admission of the two witnesses; and to the testimony objected to, and to the answers to the 1st, 2d, 3d,-and 5th points.</p>

<p>Error, to the Common Pleas of Allegheny county.</p>

This was a proceeding by John Rea v. The Perrysville and Zelionople Turnpike or Plank-Road Company, under the Act of 5th April, 1849 {Acts 402), and the 9th section of the Act of 14th May,. 1850: see Acts of 1851, p. 354.

<p>■Where the hill of exceptions to evidence is not on the paper-hook, and it not appearing on the record whether the admission of evidence was right or wrong, the presumption is that the judgment of the Court, in admitting it, was right.</p>

<p>1. A testator died in March, 1833, having devised his real estate to his wife for life, and after her death the property was to be sold, and distribution made among the collateral kindred of himself and wife. The widow died in March, 1850, and the estate was sold in that year. In 1826, estates passing either by devise, or under the intestate laws, except to or for the use of father, mother, husband, wife, children, or lineal descendants, were subjected to a tax of 2} per cent. The 13th section of the Act of 10th April, 1849, provided, where estates have boon devised to a widow or other person during life, and the remainder to collateral heirs, that immediately after the death of tbe testator the estate shall be appraised, and after deducting the valuation of the life estate, the collateral inheritance tax on the remainder shall be immediately due and payable; and the 14th section imposes, as to all estates of decedents who have been dead more than one year and which estates are subject to collateral inheritance tax, interest from the death of tbe decedent on all taxes not paid, at tbe rate of 12 por cent., unless the tax be paid within nine months from the passage of the act:</p> <p>It was held, that the estate in remainder was within the words of the Act of 1849, and the tax not being paid within the the time specified, was liable to 12 per cent, interest from the death of the testator.</p> <p>2. Held, that the administrator with the will annexed was bound to pay, for the use of the Commonwealth, 2J per cent, on the fair market value, at the death of the testator, of the interest which the collateral kindred took in the estate, the then value of the life estate being deducted; and also twelve per cent, interest per annum, from the death of the testator.</p> <p>3. The ease stated being defectively stated, the writ of error was quashed.</p>

This was an ejectment by St. Clair’s heirs v. Shale & Kennedy, for a tract of land in Ligonier township, containing 328 acres. See 9 Barr 252, &c., for a former report of this case. The plaintiffs claimed as the heirs at law as well of Gen. St. Clair as of Capt. Bayard.

This was an action of ejectment by Robert Wray v. George Miller and William Long, to recover the possession of 100 acres, more or less, of a tract of land ■ warranted and surveyed in the name of Millisent Wade, and patented to John Mifflin on the 7th October, 1774, and calling for 301 acres, 2d August, 1851. Plea, not guilty.

This was an action of assumpsit to May Term, 1849,. by Solomon Sartwell v. William P. Wilcox, to recover the sum of $1000. The declaration contained the usual counts for money had and received, and a special count on an agreement in venting, hereafter referred to.

<p>Error to the Common Pleas of Indiana county.</p> <p>This was an action of ejectment' by Nicholas Altemus v. Matthew Criswell, for above 164 acres of land, being the north end' of a certain tract, warranted in the name of William Morrell, and which Altemus, by articles of agreement, dated 4th April, 1840, agreed to sell to Criswell, and covenanted to convey in fee simple. The tract adjoined a tract of land surveyed in the name of Robert Hogg.</p> <p>In March, -1842, Altemus tendered to Criswell a deed for the land agreed to be sold.</p> <p>At the time of the contract, and till the trial of the case, Andrew Campbell, who resided on the survey in the name of Robert Hogg, was in possession of about.seven or eight acres of the northeast corner of the northern half of the Morrell survey, and, it was said, had acquired title to that much of it by the statute of limitations ; and the defendant claimed a deduction from the amount of the consideration mentioned in the article of agreement, on account of the quantity of land in; the occupancy of Campbell.</p> <p>It was assigned as error, That the Court erred “in leaving it as a, question of fact to the jury to find whether that part of the William Morrell survey, which was in the possession of Andrew Campbell, was included in the contract between the parties.”</p>

This was a writ of error by Joseph Nixon, Sarah Sfcerm, W. Nixou, and J. S. McLarren, plaintiffs in error, v. S. C. Cole, J. F. Cole, and James Robertson, defendants in error.

This was an action of assumpsit, brought in the Common Pleas of Armstrong county, by Shunk v. Waugh and others, as partners. The writ was served on Waugh only.

<p>Error to the Common Pleas of Gcreene county.</p> <p>This was an ejectment by Peter Myers against John Owens, David Owens, and David Keener, to recover about fifty acres of land.</p> <p>1 Peter Myers, the plaintiff, claimed the land in dispute, under a conveyance from Samuel Cleavenger, attorney in fact of Shoemaker and Willis, who held the title from the Commonwealth, by patent dated in 1796. The deed from Cleavenger to Myers was dated February 28, 1842, and recorded March 1, 1842. The evidence was not set out at length on the paper-books j but it was stated, on the part of the plaintiff, that it was testified that Peter Myers purchased the land from Cleavenger, as attorney, by articles of agreement in 1834. His deed was not recorded till after the record of that of the defendants hereafter referred to.</p> <p>On the part of the defendants, it was shown, that as early as 1803, Thomas Owens, their father, entered upon the land in dispute, and took possession of a small improvement, which had been made by a man named Moore. That the elder Owens occupied the land, adversely, until his death in 1833. His children, the plaintiffs in error, remained in possession after his death, and occupied the land at the time of trial.</p> <p>On the 8th of March, 1836, John Owens, one of the defendants, whilst in actual possession of the land, agreed in writing with Cleavenger for the purchase of the Shoemaker and Willis title. There was also evidence that there was a parol agreement to the same effect, prior to this date. In pursuance of this agreement, a deed was executed by Cleavenger to the defendants, dated May-11, 1839, recorded Sept. 28, 1840.</p> <p>It was in evidence, that Cleavenger declared that the land in dispute was intended for the Owens’; that he wished the old man and his children to have the benefit of his improvement.</p> <p>It was also in evidence, that in 1844, after the alleged purchase by Myers from Cleavenger, the interest of Peter, Thomas, and John Owens (children of Thomas Owens, deceased), in the land in controversy, was levied on and sold by the sheriff to David Owens, and that Myers, the plaintiff, admitted that he was present at the sale. There was no evidence that he then objected or gave notice of his claim to the land.</p> <p>The Court charged the jury, in part, as follows:—</p> <p>“We may observe, that Owens (plaintiff in error), likewise had an improvement right, and 'in fact from the evidence might have hetd title under the statute of limitations, if he had not thought proper to acknowledge the title of Shoemaker and Willis. We say to you, then, that plaintiff and defendant, having purchased from the attorney in fact of Shoemaker and Willis, must entirely rest on these titles, and cannot go into the improvement title, for the purpose of modifying or establishing their rights here. This contract must be decided the same as if both the parties had been strangers to the land, until their purchase from Cleavenger.”</p> <p>In reference to the presence of Myers at the sheriff’s sale, the Court charged, that the presence of Myers, and his silence at the sheriff’s sale, under the circumstances proved (more particularly if David Owens knew before that Myers claimed the land), would not amount to an estoppel.</p> <p>It was assigned for error:—</p> <p>1. The Court erred in charging the jury that “ the defendant (below) having purchased from the attorney in fact of Shoemaker ancl Willis, must entirely rest on this title, and cannot go into the improvement title for the purpose of modifying or establishing his rights,” and that “this contract must be decided the same as if both the parties had been strangers to the land, until their purchase from Mr. Cleavenger.”</p> <p>2. “ That the presence and silence of Myers (the plaintiff below) at the sheriff’s sale, would not amount to an estoppel.”</p>

<p>Error to the Common Pleas of Cfreene county.</p> <p>This was an action of assumpsit by Shriver v. Stephens, under the Act of 11th March, 1842, relative to partition fences. The plea was non assumpsit and payment.</p> <p>On the part of the plaintiff, a witness testified that he was one of the township auditors, and acted in this case as a fence Viewer. That he was sworn as auditor, but had no recollection of talcing the oath as fence viewer. He and another auditor (the plaintiff, Shriver, being the third auditor), viewed the fence in question which had been built by Shriver, and made a certificate. The view was had at the instance of Shriver.</p> <p>The certificate offered in evidence was signed by the two auditors who acted in the matter,' and was to the effect that they met on the premises, and after examining the partition fence between the parties, reported that they believed.it would “cost $10 to make a sufficient fence eight rails high on said line.”</p> <p>It was admitted that Stephens was at the view of the fence, but that he did not know when he went there that the object was to view the fence.</p> <p>Defendant’s counsel objected to the certificate being read, 1. Because the Act of Assembly requires five days’ notice to be given, and there was no evidence of notice."</p> <p>2. That it does not certify that the fence already built is sufficient, nor what proportion of the expense of building the new or repairing the old fence should be borne by each party.</p> <p>8. That it further appears that the viewers were not sworn.</p> <p>The Court sustained the objection, on the ground that five days’ notice was not given to the defendant before the view; the Court being of opinion that previous notice was required, in order to give the party who was bound to make the fence, or a portion of it, the opportunity of repairing the same, and to prevent the viewers from condemning it.</p> <p>It was assigned for error : The Court erred in rejecting the certificate offered in evidence by the plaintiff without .proof that five days’ notice had been given to defendant of the meeting of the fence viewers.</p> <p>It was alleged, 1. That no notice was required by the Act to be given to the adverse party .of the meeting of the viewers.</p> <p>2. That if notice to the defendant was necessary, he waived it by his attendance at the view.</p>

Appeal by Jacob F. Brant from the decree of the Common Pleas of Bayette county, distributing the net proceeds of sale of his real estate. His estate was sold under a writ of vend, ex., issued August 5, 1851, tested 7th June, and the property was sold on the 3d September, 1851.

<p>1. Foreign attachment is a remedy against debtors who are non-resident in the Commonwealth, and are absent. Domestic attachment is a remedy against resident debtors absenting or concealing themselves. .</p> <p>2. The mere absence of a debtor from this state, engaged in a contract on a railroad in Maryland, he not having removed his family with him, his wife having gone to her father in Pennsylvania, in which state the debtor had been residing for years and of which he was a native, without any evidence appearing of his intention to change his residence, will not render his property liable to foreign attachment.</p>

<p>Appeal by Elihu Gregg, one of the heirs of Nimrod Gregg, deceased, from the decree of the Orphans’ Court of Fayette county.</p> <p>See the opinion of Woodward, J., for the material facts of the case.</p>

<p>It is not a bar to an action against the sureties of a collector of state and county taxes, that at the time of his appointment he was in default as collector for the previous year. The Act prohibiting such, appointment is but directory: the appointment was not void.</p>

Appeal by Jacob Morgan from the decree of the Court of Common Pleas, Washington county, distributing the fund arising from the sheriff’s sale of A. C. Morrow’s personal property, on several fi. fa’s. Appeal by John Morrow from the same decree. Writs of summons were issued in several cases against Adam C. Morrow, returnable to the first Monday of April, 1852.

This was an action of ejectment by J. A. Coulter and Bickard Coulter, Jr., against Joseph Philips and others, to recover the undivided eighth part of 400 acres of land, formerly the property of Jacob Philips, deceased. The writ was issued oh 29th July, 1845. Benninger and Morrison, two of the defendants, took defence for 183 acres and 134 perches, being the amount included in a deed by the heirs of Jacob Philips, deceased, to Barbara Lear.

This was an action of ejectment by Isaac Ankeny v. Henry Al-bright, for 363 acres of land, warranted to Henry Hains, situate in G-reenville township, in the county of Somerset. The plaintiff claimed title under a sale for taxes in the year 1820, and showed a warrant and survey, and assessment of taxes for years 1817,1818, and 1819.

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of slander, brought by Simon Sommer and Barbara, his wife (for the slander of the wife), v. Henry Bash.</p> <p>The plaintiff, with Martha Bash, who was a sister of Barbara Sommer, resided with and composed the family of Martin Bash at the time of his death. The moneys and other property of the deceased in his possession at his death, it was stated, remained in their custody and possession until claimed by the administrators of the estate.</p> <p>It was charged in the declaration, that in a discourse concerning certain gold and silver and personal estate of Martin Bash, then deceased, the defendant said there was silver and gold in the old man’s house; that the silver came to light, but that Simon • and the two girls took the gold. Further, that there was $3000 in money in the house, and that they took $1000. Further, that Sommer and His wife and sister-in-law stole $1000 in gold and silver from the old man, thereby meaning that the said Barbara with others had feloniously taken and stolen $1000 from Martiir Bash; and that she .with others had stolen $1000 of the personal estate of Martin Bash, deceased; and that she with others had stolen the gold of Martin Bash, deceased, &c.</p> <p>It was testified that Henry Bash, the defendant, who was a son of Martin Bash, deceased, said, that on the day on which his father was buried the money was counted; that he had left silver and gold; that “the silver was brought forward, but the gold was not;” that “ Simon and the girls stole it.”</p> <p>It was also testified that, on another occasion l¡Jian that upon which the words above referred to were spoken, the defendant said, “for Sommer, he stole his father’s money” — “he would steal anything he could get his hands on.”</p> <p>Eor these declarations, three actions of slander were brought against Henry Bash: one by Martha Bash; one by Simon Sommer ; one by Sommer and Barbara, his wife, and a recovery was had in each case. A writ of error was taken in each case.</p> <p>On the trial of this action, the counsel for the defendant asked the Court to instruct the jury, 1. That if plaintiffs (being co-heirs and entitled to distribution) were in the possession of the goods and chattels of the estate of Martin Bash, deceased, during the interval that elapsed between the death of said deceased and the granting of letters of administration on said estate ; and if, during said interval, the plaintiffs appropriated a portion of said goods and chattels to their own use, such appropriation would not constitute the crime of larceny; and for a person (being a co-heir) to say that they stole said goods and chattels so appropriated, would not subject him to an action of slander.</p> <p>2. That, inasmuch as there has already been a recovery by Simon Sommer, the husband, for the same words, this suit cannot be maintained.</p> <p>Knox, J., instructed the jury “that the words laid in the declaration were actionable; and if they believed that the evidence substantially proved the speaking of the words as laid, the case was made out, and the plaintiffs were entitled to recover such damages as the jury thought just and right, in view of the nature of the charge, the manner in which it was made, and the injury likely to result from it.</p> <p>“And'further; that the recovery by Simon Sommer, in his own name, for words spoken of himself, would not bar a recovery in this case for the slander of his wife, even although the words were uttered at the same time.”</p> <p>The refusal to instruct as requested was assigned as error-</p>

This was an action by George Findley and 'Pamelia Findley, for the use of William Clarke, against Elias Raker, It was an action of debt, on three bonds, dated 29th April, 1846, for $500 each, given by Elias Baker to George and Pamelia Findley, who assigned the same to Wm. Clarke. These bonds were given for part of the purchase-money of a tract of land sold by said Findleys to said Baker, for the consideration of $3000. Deed dated 28th April, 1846, with special warranty.

Error, to the Common Pleas of Westmoreland county. This was an action of ejectment to February Term, 1850, by Joseph Craig v. David McKeown, for about 200 acres of land. The land in dispute had belonged to the father of the plaintiff, who devised it to him on certain conditions. A judgment was obtained in the year 1842 against Joseph Craig and another, in Huntingdon county.

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by Jamos Morrison v. James M. Dávis & John McEadden, partners, under the name of Davis & Co., and owners of the “Reliance Portable Boat Line,” to recover damages for the loss of merchandise shipped in Philadelphia to be delivered in Pittsburgh.</p> <p>The declaration contained five counts, 1. Charging the defendants as common carriers in the usual form.</p> <p>2. Charging them as common carriers, and averring that they undertook and promised to take care of and safely and securely carry and convey the goods, &c., and deliver the same to the plaintiffs at the city of Pittsburgh, without any exception.</p> <p>3. Averring that the defendants “ undertook, and faithfully promised the said plaintiffs to guaranty the safe delivery of the said goods, wares, merchandise, and chattels for the said plaintiff at Pittsburgh, in the county aforesaid, without exception.”</p> <p>4. That said defendants “undertook, and faithfully promised the said plaintiffs to insure the safe delivery of the said goods, wares, merchandise, and chattels for the said plaintiff, at Pittsburgh, in ths county aforesaid.”</p> <p>5. That they “ undertook and faithfully promised the said plaintiffs to insure the said last-mentioned goods, wares, merchandise, and chattels, and to be and become the insurers thereof fro.m the city of Philadelphia aforesaid to the city of Pittsburgh, in the county aforesaid; and in case of the loss of the said goods, wares, merchandise, and chattels, or any part thereof, or of damage or injury to the same, or of any part thereof, during the carriage, transportation, and conveyance and delivery thereof, by the said defendants, to be responsible therefor to the said plaintiff, and liable for the value thereof.”</p> <p>The defendants plead non assumpsit.</p> <p>The death of James M. Davis was suggested, and the jury were sworn as to John McEadden, the survivor.</p> <p>On the part of the plaintiff was given in evidence the bill of lading, as follows:—</p> <p>RELIANCE PORTABLE BOAT LINE.</p> <p>James M. Davis, No. 249 and 251 Market Street, Philada.</p> <p>John McEadden & Co., Canal Basin, Pittsburgh.</p> <p>Philadelphia, Oct. 1, 1847.</p> <p>Received and collected the following packages, in apparent good order, marked as per margin, which we promise to deliver in like order to John McEadden & Co., on presenting this receipt and payment of freight, at our warehouse in Pittsburgh, within eight days (Sundays excepted), unless unavoidably detained, of which affidavit of captain shall be evidence, at the following rates per 100 pounds.</p> <p>Railroad time, eight days.</p> <p>(Then followed rates of freight and enumeration of packages.)</p> <p>James M. Davis & Co.,</p> <p>By John M. Craig.</p> <p>It was admitted that the damage done amounted to $717.92.</p> <p>The plaintiff then offered, in support of the 3d, 4th, and 5th counts, to prove by depositions, and by oral testimony, that the defendants held themselves out to the public, by advertisements in the newspapers, and by circulars sent to their customers, as insur-’ ers, and as guarantying the safe delivery of all goods carried by them, without exception; and that one of their circulars was delivered to a customer by the defendants in the presence of the plaintiff, at the time he contracted for the carrying of the goods; and also what were the declarations of the defendants at that and other times in relation to their liabilities as- insurers, and particularly, that when one of the deponents asked as to his own goods, “what about the insurance ?” the defendants handed him a circular; that the plaintiff was present at the time, being at the' same time that the plaintiff was shipping his goods; and also to show that the plaintiff before that time had other goods forwarded by the defendants, and that they had then held themselves out to him as insurers.</p> <p>To this offer the defendants objected, because, 1. The defendant is bound only according to the written contract.</p> <p>2. The advertisements and circulars never came to the plaintiff’s knowledge.</p> <p>The Court sustained the objection on the first ground,_ to which the plaintiff’s counsel excepted.</p> <p>The plaintiff then offered to prove, in addition to the above offer, that he paid a higher rate of freight in consideration of the agreement to guaranty the safe delivery of said goods.</p> <p>Objected to by defendant’s counsel; objection sustained, and the plaintiff’s counsel excepted.</p> <p>The defendant’s counsel then read in evidence sundry depositions, tending to show that the injury arose from an inevitable accident, to wit: from an extraordinary flood in the Juniata Division of the Pennsylvania Canal, and among them, depositions of the boat’s crew, especially tending to show that when the boat started on its voyage, one of the horses had by an accident become lame, and that, by reason thereof, great delay was occasioned in making the voyage, without which the goods would have arrived in safety.</p> <p>The plaintiff’s counsel then read in evidence sundry depositions, tending to show that, notwithstanding the flood, the injury could, by proper care, have been avoided; and also gave other evidence, tending to show that the defendant’s boat, at the time of the disaster, had not made the usual progress, nor accomplished so much of the voyage as other boats starting at the same time and subsequently; and that said boat could not have reached her point of destination within the time limited in the bill of lading.</p> <p>Various points were submitted on the part of the plaintiff, which the Court declined to answer further than they were answered in the general charge.</p> <p>For the material points in the case, see the opinion delivered by Lowrxe, J., in this Court.</p> <p>Error was assigned to the rejection of the evidence mentioned in the two bills of exception.</p> <p>Also to the refusal to answer the points specifically and fully; and to the charge, as follows:—</p> <p>6. The Court erred in that part of the charge having reference to the effect which the delay caused by the lame horse of the defendant had upon the excuse of the carrier; and in instructing the jury in effect “ that the law does not transfer the fault of starting on the voyage with insufficient horse power, so as to make it an element in testing the inevitableness of the disaster at Piper’s dam.”</p> <p>7. The Court erred in charging the jury that common carriers “are only answerable for the ordinary and proximate consequences of their negligence, and not for those which are remote and extraordinary.” And in charging that the ordinary consequence of the fault charged in this case is the loss of time, and the penalty is measured accordingly, even though a conjuncture of other extraordinary circumstances has greatly increased the extent of the injury. ' ...</p> <p>... 8. The Court erred in charging that, “where a carrier is guilty of delay in transporting goods, his liability is to pay for the delay. This liability is not changed by the subsequent destruction of the goods by reason of ■ extraordinary circumstances within the influence of which they were brought by that delay. The discovery of new and remote consequences does not change the liability which attached on the happening of the fault. The law does not make this delay an element in testing the inevitableness of the final disaster.”</p> <p>9. The Court erred <in instructing the jury, in effect, that the facts proved in relation to the lame horse, were not to be taken into consideration in deciding upon the liability of defendant for the loss of plaintiff’s goods.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of ejectment by Beall v. Barlow, the landlord, and Read, his tenant, to recover a lot of ground in Allegheny city.</p> <p>The question was, whether Barlow, from the record itself, was visited with notice that the person from whom he purchased the lot in dispute was the attorney of Trainer’s heirs, when the said person purchased the lot at sheriff’s sale.</p> <p>The lot had been the property of Schoyer, who conveyed to Seville, by deed dated 20th October, 1836. Judgment was had in favor of Schoyer v. Seville for $480, being No. 186, of July Term, 1837. The judgment was for the use of Trainer, and the attorney, named on the margin of the record as counsel for the plaintiff, became the purchaser of the lot at sheriff’s sale, on 29th January, 1844, it having been sold on execution on that judgment; and on 14th May, 1846, he received a deed for the lot in his own name from the sheriff. As attorney of the plaintiff in the execution, he receipted to the sheriff, and thus the amount of his bid was settled. He afterwards, viz., on 8th July, 1848, conveyed the lot to Douglas, who conveyed to Barlow, under, whom Read was a tenant.</p> <p>After the purchase of the lot by the attorney, it was again sold by the sheriff, under a judgment against Trainer (the time of sale was not stated on the paper-book), and at that sale Beall, the plaintiff in this ejectment, was the purchaser.</p> <p>The question reserved by the Court was, whether Barlow was protected against the claim of Trainer, or of the plaintiff claiming under him.</p> <p>Lowrie,.J., entered judgment in favor of th% plaintiff on the reserved point; and the entry of such judgment was assigned for error.</p>

This was an action of ejectment by John H. Hickman v. Andrew Soles, for lot No. 47 in McKeesport. Soles owned a lot adjacent to the one in dispute, and, by mistake in the location of his lot, erected a dwelling house on this lot.

<p>"Where the judge who presided at the trial of the cause has died, without having sealed the bills of exceptions taken at the trial, the writ of error may be continued, to afford the party an opportunity of having it sealed by the other members of the Court, or by the succeeding president judge, to whom the facts may be shown by testimony, the notes of counsel, or of the deceased judge, or of his associate in office.</p>

This was the case of a writ of quo warranto, issued from the Supreme Court sitting at Pittsburgh, in 1850, upon the complaint and suggestion of James Tod, against th'e president, managers, and company for erecting a bridge over the Allegheny river opposite to the city of Pittsburgh. The original Act for the incorporation of the company was approved on the 20th March, 1810.

<p>1. The assignee of a chose in action, not negotiable, takes it subject to all the defences to which it was subject in the hands of the assignor.</p> <p>2. The defence founded upon the set-off of cross-demands is a right secured by statute, and, under the law of Pennsylvania, exists as well where the defendant is only the equitable owner of the cross-demand, as where he has both the legal and equitable title to it.</p> <p>3. The maker of a note under seal, before notice by him of the transfer of the note, acquired a claim against the payee arising on a bond of the payee to a third person: It was held, that the claim having been acquired before notice of the assignment of the note, was available as an off-set in a suit on the note against the maker by the equitable assignee.</p>

This was a feigned issue between Wbarton Chancellor, as plaintiff, and James Schott, defendant. James Schott obtained a judgment against Senry Chancellor in the District Court of Philadelphia, for the sum of $3240.' It was an amicable action in case entered by agreement filed October 20, 1845. January 28, 1846, judgment. February 16, 1846, fi. fa. issued, to which nulla Iona was returned.

Erroé to the Common Pleas of Philadelphia county. These were two actions of covenant, originally brought before an alderman, by Frances Allison et al. v. John D. Spear, to recover arrears of ground-rent. Appeals were entered to December Term, 1849, Nos. 184,185; they were tried together, and verdicts were rendered for the plaintiffs.

There were two issues formed in the Court below, upon the precept of the Register of Montgomery county, to try the validity of the will and codicil of Catharine Saylor, deceased, formerly Catharine Smith. In the issues Samuel Kurtz and others were plaintiffs, and Godfrey Saylor was defendant. The testatrix was twice married.

<p>1. The executors of a decedent, who has made an entire contract, and died before it was completed, may excuse the other party from the full performance of it, and in that event he may recover from the estate for the work already done.</p> <p>2. Where evidence is given of a fact, whether the evidence as to it he clear or slight, though the Court may express an opinion upon it, the evidence should ho submitted to the jury.</p>

This was an appeal by Thomas B. and Aaron Hallowell, from the decree of the Orphans’ Court of Montgomery county, dismissing a citation which had issued, on their petition, against George Hallowell, one of the executors of the will of Thomas Hallowell, deceased. Thomas Hallowell died on 29th April, 1848, leaving a will, in which the petitioners and respondent were appointed the executors.

This was an amicable action of assumpsit by James Munroe against George Sauer, entered in the Court of Common Pleas, on the 4th September, 1849, to recover $70.89, the moiety of the cost of a party-wall erected by the plaintiff below, in Fifth street, above Master street, in the district of Kensington, and which had been used by the defendant, in the erection of an adjoining building.

This was an action of assumpsit for contribution, brought by C. S. Carpenter, executor of the -will of Powell Carpenter, deceased, v. Isaac Koons. In 1829, Isaac Koons, the defendant, and K. A. Parrish, were tenants in common of a large lot of ground on Willow and Fifth streets, Philadelphia. On the 27th ^February, 1829, they mortgaged the same to the contributors to the Pennsylvania Hospital, to secure $8000.

<p>Appeal from the District Court, Philadelphia.</p> <p>This was an action of trespass by Thomas Bogue v. William Deal, Thomas Tustin, and Thomas J. Jeffries. Deal was the sheriff of Philadelphia county, Tustin was his deputy, and Jeffries was the plaintiff in the execution hereinafter mentioned. The action was brought for seizing and selling certain personal property, viz., horses and carriages, on an execution in favor of Jeffries against Samuel Archer.</p> <p>It was alleged in the declaration, that the defendant seized and unlawfully converted the goods of the plaintiff.</p> <p>Bogue and Archer had been partners in a livery stable, and jointly owned the horses and carriages sold.</p> <p>On the 29th December, 1849, Jeffries’ execution against Archer alone was issued, which was returned “Levied on the personal property of the defendant on the 29th of December, a. d. 1849, and sold the same January 17, 1850, for the sum of $1144.”</p> <p>Previous to the sale, a notice signed by Bogue was served on the sheriff, to the effect that the property levied upon belonged to Bogue; that the firm had been dissolved, and the interest of Archer transferred to Bogue on the 8th January, 1850.</p> <p>It was however contended on the trial, on the part of Bogue, the plaintiff, that, before the levy, viz., as early as the 13th December, 1849, he, Bogue, purchased the interest of Archer in the partnership property, and had the sole possession.</p> <p>On the part of the defendants it was contended, and evidence given to show that the partnership had been dissolved in November, 1849; but that Bogue then sold out his interest in it to Archer, and that the latter was in the sole possession when the levy was made.</p> <p>On the part of the plaintiff, there was given in evidence, as rebutting evidence, a written agreement under seal between Bogue and Archer, dated the 8th day of January, 1850, viz., after the levy and before the sale, by which it was agreed that the firm of Bogue & Archer be dissolved; and Archer assigned to Bogue all the money, stock, and effects of the partnership,'and all rights to the lease of the premises used by the firm, for $1230; Bogue to pay the partnership debts, &c. This agreement was offered as rebutting evidence. Before it was offered, Archer had been examined on the part of the defendant, and he testified that the stock, when levied on, belonged to him, &c., and that he never perfected the sale to Bogue.</p> <p>On the part of the plaintiff in error it was alleged, that there was not evidence that the sheriff removed any of the property, either before or after the sale; or that he took possession of it otherwise than by the act of levy; nor that he delivered possession of it, after the sale, otherwise than by making sale of it.</p> <p>On the trial, however, it was testified that Tustin conducted the sale; that Jeffries was present but was not heard by the witness to give directions. Seven or eight horses, several vehicles, and six or seven sets of harness were sold. Jeffries bought two horses. The witness added, “ the articles I saw go away. Bogue’s establishment was broken up.”</p> <p>On the trial, several points were submitted on the part of the defendants, viz.:</p> <p>1. That the plaintiff is not entitled, in this suit, to recover against the three defendants jointly.</p> <p>2. That if, at the time of the levy, the property levied on was the joint property of Bogue and Archer, the plaintiff cannot recover.</p> <p>3. That if the?jury believe that the interest of Bogue in the goods levied on was, in November or December, sold by him to Archer; that afterwards, and before the levy, said Bogue and Archer entered into treaty for the re-sale of Archer’s interest to Bogue; that Bogue was then permitted to be at the stables, and attended to the business while the treaty was pending, and that afterwards, béfore it was finally closed and its terms agreed on, the levy was made, the plaintiff cannot recover.</p> <p>4. That the paper dated January 8, 1850, is not evidence in this suit of the time when the partnership was dissolved, nor of what was the actual consideration in the transfer or agreement made that day.</p> <p>The Court declined to charge'the jury as requested in defendant’s first and second points, and affirmed the said defendant’s third point, and also affirmed the defendant’s fourth point, with this qualification, viz., that the said paper was evidence for the purpose of contradicting Archer, and further charged:</p> <p>That if the goods, at the time of the levy, belonged to Bogue, the verdict must be for the plaintiff for the value of the goods.</p> <p>That if the goods, at the time of the levy, belonged to Archer, the verdict must be for the defendant.</p> <p>That if the goods were the joint property of Bogue and Archer, at the time of the levy, the sheriff, though he had a right to seize and make an inventory, had no right to take the goods out of the plaintiff’s possession and deliver them to the purchaser.</p> <p>The effect of the sale was, quoad the goods sold, a dissolution of the partnership, and the purchaser became a tenant in common with the plaintiff, subject to the partnership debts, with the right to enforce an account. * * * * “ It is supposed that a technical difficulty exists, from the fact that the plaintiff was not the sole owner of the goods; but it appears to me that the difficulty does not exist here; that the proper mode to take advantage of such difficulty is by a plea in abatement; but if the defendant plead not guilty, it shall be good, but then the plaintiff shall only recover damages for his interest, whatever it may appear to be; the measure of damages is the plaintiff’s interest without regard to the debt.”</p> <p>May 17, 1850, verdict for plaintiff for $675 damages.</p> <p>It was assigned for error: — 1. The Court erred in refusing to charge that the plaintiff is not entitled in this suit to recover against the three defendants jointly, as requested in defendant’s first point.</p> <p>2. The Court erred in refusing to charge that if, at the time of the levy, the property levied on was the joint property of Bogue and Archer, the plaintiffs cannot recover, as requested in defendant’s second point. ■</p> <p>3. The Court erred in admitting in evidence the paper of January 8, 1850, offered in evidence by said plaintiff for the purpose of showing what was the agreement of parties on that day.</p> <p>4. The Court erred in charging that the said paper of January 8, 1850, was evidence for the purpose of contradicting Archer.</p>

The property consisted of three parts: No. 1. Containing about 102 acres; No. 2. Above three acres; and No. 8. Above eleven acres. The property was sold by the sheriff on 4th April, 1850, to Frederick W. Nagle and Solomon Dech,-for '$4050. No encumbrances were mentioned in the conditions of sale.

William H. Gresner, committee of Philip Morris, a lunatic. This was a proceeding under the provisions of the Act of Assembly passed April 2, 1831, and a supplement thereto, passed March 14, 1836, incorporating the Philadelphia, Wilmington, and Baltimore Railroad Company.

<p>Certiorari to the Orphans’ Court of Delaware county, in the matter of the appeal of Justis Culin, administrator of the estate of Benjamin Wright, deceased, from the decree of the said Court. The dispute arose under the will of Israel Urian.</p> <p>The testator devised to his wife all his estate, both real and personal, during the term of her natural life. He further devised, from and after the decease of his wife, to his eight children, (Hannah, who was then married, being one,) all his estate, both real and whatsoever then remained of the personal estate, to be equally-divided between them. But he added that he left in trust to a person named, the share allotted to his daughter Hannah, to be paid to her “on the conditions following,” which were, that if her husband should continue to refrain from taking strong drink to excess for one year after the decease of the testator’s wife, then his said daughter’s portion should be paid to her as to his other children. But if the said husband should prove to be of intemperate habits, then the interest only to be paid to her annually by the trustee, and at her decease the principal sum to be paid to her son.</p> <p>The husband of Hannah died about five years before the decease of the widow of the testator.</p> <p>In the account of the administrator cum testamento annexo of Israel Urian, deceased, the balance of proceeds of personal and real estate exceeded $4700. An auditor was appointed to make distribution, who reported in favor of the payment to Hannah, the daughter of the testator, of her share of the estate, absolutely. On the part of the heirs of her son exception was taken to the report.</p> <p>October 5, 1852, the report of the auditor was confirmed.</p> <p>It was assigned for error, that the Court should have ordered that the money be paid to the trustee named in the will for investment, the interest only to go to Hannah during her life, and at her death the principal sum to be paid to the representatives of her son.</p>

<p>Error to the Court of Common Pleas of Schuylkill county.</p> <p>On 4th October, 1850, a judgment was obtained in Schuylkill county in favor of The Bank of Danville v. William Donaldson. A fi. fa. was issued and a levy made upon real estate of the defendant; inquisition was held and the property condemned. The property was sold by the sheriff for $52,650. On 11th March, 1851, exceptions to. the levy and sale were filed, and a rule granted to show cause why the levy and inquisition, the writ of venditioni exponas, and sheriff’s sale should not be set aside. On 2d May, 1851, the sale was set aside, but the Court refused to set aside the inquisition, and granted leave to amend the levy.</p> <p>Error was assigned to the refusal -to set aside the levy and inquisition.</p> <p>The levy was on “all those undivided thirty-five and eighty-three one-hundredth parts, equal to an undivided interest of 1521 acres in ten adjoining tracts of land, containing together 4366 acres and 6 perches, less a certain interference stated, with the appurtenances, consisting of houses, engines, coal mines, railroads and fixtures, &c., excepting out of the levy the undivided interest of Donaldson in town lots in the town of Donaldson, located on one or more of the said adjoining tracts.</p> <p>Also his undivided interest in each and every town lot in Donaldson. It was alleged in the exceptions that in the case of lots sold by the owners, the coal beneath them had been reserved.</p> <p>In the exceptions it was stated that in the levy the interest of Donaldson in the coal under the town was separated from his interest in the coal in the ten adjoining tracts, and that such separation would be prejudicial to the whole of his interest and lessen its value.</p> <p>2. That the levy and description of his interest in the town lots was vague and calculated to mislead.</p> <p>3. That his interest in the ten tracts of land, as described in the sheriff’s advertisement, was vague and repugnant.</p> <p>4. That in the sheriff’s advertisement the valuable improvements on the ten tracts were not specified, and that in the advertisement it was not stated that the tracts were generally good coal land.</p> <p>Depositions were taken on the part of the exceptors.</p> <p>The action of the Court has been before stated.</p>

<p>This case, was brought up from tbe Nisi Prius.</p> <p>It was an action of ejectment by children and heirs of Henry Homiller, deceased, for a lot of ground on the east side of Third Street, in the Northern Liberties, in the possession of P. W. Birmingham, defendant below, who was a tenant under James H. Hart. Hart claimed to hold possession as the sheriff’s vendee of Jacob Martin, whose right, title, and interest in the premises in question had been purchased by the said Hart.</p> <p>It yas conceded on the trial that Henry Homiller, at the time of his death, was the owner of the property, both parties claiming under him.</p> <p>The plaintiffs proved that they were the children of the said Henry Homiller, and gave in evidence his last will, dated 1st September, 1821, and admitted to probate, 26th December, 1821, in the register’s office of the city and county of Philadelphia.</p> <p>Samuel was a son of the testator; and the lot in question, devised to him in said will, was the subject of the ejectment.</p> <p>A portion of the will relating to Samuel was as follows:—</p> <p>“ I give and bequeath unto my son Samuel the use of the store and back building, called the slaughter-house, and one cellar thereof, as now occupied, by him, during the life or widowhood of my said wife, he paying therefor unto my said wife, while she remains my widow, unmarried, yearly, the sum of fifty dollars for her life.” He further directed, that after the decease or intermarriage of his said wife, whichever shall first happen, his lot of ground on Third street shall be divided into two lots, agreeably to a plan intended to be made thereof; and he devised to his son Samuel, his heirs and assigns, the store he then occupied, and the lot of ground back as far as the slaughter-house, at such a valuation as shall be made thereof by six respectable bricklayers and carpenters.</p> <p>By the will, the rest, residue, and remainder of his estate, real and personal, not disposed-of, was, after the death or marriage'of his widow, devised by the testator to his six children, including Samuel, in proportions stated in the will.</p> <p>Samuel died about 1835; his mother died, unmarried, about 1845; and, after her death, the lot devised to Samuel was valued on 26th August, 1845, at $2250.</p> <p>Jacob Martin was an executor of the will of Henry Homiller, and was living at the trial of this case. He had not been discharged.</p> <p>A judgment was obtained by Jacob Martin v. Samuel Homiller, the legatee, to December Term, 1824, on which a vend. exp. was issued to June Term, 1827, and the right, title, and interest of Samuel was sold to Jacob Martin, the plaintiff in the judgment,' for $100. The interest of Samuel was described in the writ and sheriff’s deed as subject to the yearly rent of $50, and to the valuation to be made as directed by the will.</p> <p>On 29th April, 1842, a judgment was obtained by" Hart and others v. Jacob Martin, and the right, title, and interest of Martin in the lot was purchased at sheriff’s sale by Hart, for $60. In the writ and in the sheriff’s deed to Hart, acknowledged on 10th April, 1847, the property was described as subject 'to the yearly rent of $50 per annum, payable to Catharine Homiller, during her life or widowhood, and also subject to a valuation to be made of said building and lot, after the decease or marriage of the said Catharine Homiller, agreeably to the last will and testament of Henry Homiller, deceased, and it was conveyed under and subject to the aforesaid yearly rent, and to a valuation, &c.</p> <p>On the part of the plaintiffs, a witness testified 'that he had leased the premises in question from Jacob Martin, as executor, and that Jacob told him, after the sheriff’s sale to Jacob, that he had bought the property for the heirs of Henry Homiller.</p> <p>It was further testified, that,' at the sheriff’s sale of the premises, on the execution against Jacob Martin, a notice was read in the presence of Hart, in which it was stated, that the interest conveyed to Jacob Martin by the sheriff’s deed, ceased on the death of the widow; and that the purchaser under the sale about to be made, would take the premises subject to the valuation of $2250, and also to the approval of the devisees and legatees claiming by virtue of the will. The notice was signed by one as attorney for legatees and devisees.</p> <p>The Court charged, inter alia, that if the evidence was believed, Hart, the defendant, had full notice of the title of Martin, and bought subject to the valuation made in 1845.</p> <p>As to whether the plaintiffs could maintain the ejectment, it was observed, that, on the part of the plaintiffs, the Court was requested to charge that Hart had but a possessory right, which was at an end before the ejectment was instituted, and that the plaintiffs were entitled to recover. That, on the other hand, it was contended that the will and sales vested in Hart an estate in fee.</p> <p>The Court charged that this ejectment could be sustained in lieu of a bill in equity. That, inasmuch as the title of the defendants was at an end unless the money was paid, subject to which the lot was sold, either the plaintiff could recover or the estate could be recovered by the executor. But he instructed the jury that the ejectment could be sustained, and that if Hart bought with notice as to how Martin held the land, the plaintiffs were entitled to recover; the premises to be released in a reasonable time to be designated by the jury.</p> <p>• Verdict was rendered on 13th December, 1850, for the plaintiffs, the premises to be released on the payment by the defendant, within sixty days, of $2964.37, with interest from that date.</p> <p>To the instruction error was assigned.</p>

Appeal of George H. Potts, one of the assignees of a judgment in the name of Stokes, Ferguson & Williams v. Charles Lawton, to January Term, 1851, from the decree of the Court of Common Pleas of Schuylkill county, distributing the proceeds of the personal property of the said defendant, sold under a writ of alias fi. fa. issued against said defendant at the suit of the Miners’ Bank of Pottsville.

This was an action of covenant to March Term, 1850, by Peter Ehrman v. Isaac R. Davis, for arrears of ground-rent. William Eryer was the owner in fee of a lot of ground on Wood street, in the county of Philadelphia. By deed dated 6th March, 1835, he conveyed the lot to J. Johnson in fee, subject to a yearly ground-rent of On Vlth Peeeniber, 1836, a judgment was obtained by George B. Reese v. William Fryer, the owner of the rent, in the sum of |20,000.

<p>Error to the Common Pleas of Chester eounty.</p> <p>' This was an appeal, entered to January Term, 1850, by the defendants in the action, from the judgment of a justice of the peace, in a suit by B. W. Jones and two others, trustees of the Doe Run Valley Church, v. Phipps and Harvey, administrators, &c., of Ellj| Phipps, deceased, in which suit the judgment of the justice was 'for the plaintiffs for $50 and costs.</p> <p>The plaintiffs declared in assumpsit, and the plea was non assumpsit, and payment with leave, &c.</p> <p>The suit was founded on a paper which, was signed some years prior to 1849, and was as follows:-</p> <p>“ As the want of a house for public worship in the village of Doe Run has long since been noticed and lamented, and at this particular period a more general feeling is manifested to-erect a house for the purpose aforesaid; in order to ascertain the amount of means that could be depended on for this purpose, we, the subscribers, do each of us agree to pay the sums set opposite our respective names, for the purpose of building a house for the purpose and in the place aforesaid, or its vicinity, to be under the control of the Presbyterian denomination of Christians; with the understanding that when, in the opinion of at least three of the principal contributors, sufficient money is subscribed to justify the undertaking, they shall give notice to that effect by appointing a time and place of meeting of contributors, for the purpose of choosing a building committee, and making such other regulations as may be agreed upon.”</p> <p>It was signed by about 200 persons, including Jones, G. and A. Mitchell, and Ellis Phipps, the latter agreeing to pay $50.</p> <p>In June, 1849, after the death of Ellis Phipps, J. M. Thompson drew up a notice purporting to be signed by him, B. W. Jones, George Mitchell, and Andrew Mitchell (but whether signed by the last three named did not appear), which was served on one of the defendants below, who stated at the time that he would not attend. This notice announced that a meeting of the contributors would be held, &c., for the purpose of choosing a building committee, and making such other regulations as might be agreed upon. At the time and place named for the meeting of the contributors, neither of the defendants below attended, and but eight persons were present, who proceeded to elect Benjamin W. Jones, George Mitchell and Andrew Mitchell a building committee, and then declared them trustees of the funds contributed, and to he invested with all the rights of the contributors for their use, and to have the whole power of the contributors for the purpose of collecting the money then subscribed, or which might thereafter be subscribed, in such manner as they might deem advisable. The persons thus appointed the building committee selected the site for a church, and erected the-building. Suit was then instituted against the defendants below to recover the $50 alleged to have been subscribed by Ellis Phipps. The defendants below contended that there was no promise which would bind the intestate during his life, or his representatives after his death; that there were not mutual prómises, and-, at most, the subscription was but a-promise of a gift, which could not take effect till the delivery of the thing given.</p> <p>On the part of the defendants a number of points were submitted, the first of which was, that to every contract there should be parties who have given their reciprocal or mutual assent to the performance or non-performance of some act. 2. That the paper signed did not contain the names of parties with whom any agreement was made, or to whom the money was to be paid. 6. That the paper was merely experimental, contemplating a future agreement between the subscribers, which was never made. 8. That the decease of Phipps, before the time appointed for the meeting of the subscribers, rendered it impossible for him to attend, and no action could be maintained against his representatives. 10. It was not shown that any three of the principal contributors, before the meeting was called, came to the conclusion that sufficient was subscribed to build the church, and that such fact should have been shown.</p> <p>Haines, J., inter alia, charged the jury that the jiaath- of Phipps, previous to the time when thejneeting was called, did not 'discharge his estate from liability, he never having erased his name from the paper. Notice of the intended meeting was given to one of the defendants; and there is no evidence that others of the subscribers, not notified, have complained. That a moral consideration was sufficient to support a promise, and that, where several promise to contribute to a common object, the promise of each is a good consideration for the promise of the others.</p> <p>He further charged, that it was not material that the subscription paper did not contain the names of persons to whom payment was to be made. There was a provision for the call of a meeting to carry out the object, and the plaintiffs were appointed to build the church and receive the subscriptions. There were therefore, substantially, parties contemplated, and authority given to raise them when their services were required. He referred to the opinion of Chancellor Walworth in the case of Stewart v. The Trustees of Hamilton College, 2 Denio 413.</p> <p>Verdict for $50 damages.</p> <p>The charge was excepted to, and various errors were assigned to it.</p>

These were five actions of ejectment. In each ease John McCawley was plaintiff. They were severally brought against S. Murphey, William R. White, D. Taylor Pratt, Maurice White and others, and Lydia M. Weaver. They were brought for the one undivided third part of five several contiguous lots of ground in the city of Philadelphia. McCawley, the plaintiff below, claimed an undivided third of the several lots.

This case was brought into the Supreme Court from the Orphans’ Court of Chester county.

This was an action of debt on a ground-rent deed, brought in the name of John B. Newman and others, devisees in trust for the estate of James Lytle, deceased, for the use of R. M. Huston, v. Elkinton.

This was a scire facias by Thomas Hansell v. Samuel Webb, with notice to terre tenant, on a mortgage executed by Webb in favor of Hansell, and the scire facias was returned, served on Stimul Lutz, as terre tenant. The mortgage was dated 10th July, 1847, and was for the payment of $750 in two years from the date, with interest payable semi-annually, and if the interest •were not paid within thirty days after it became due, then the principal might be demanded.

Error, to the District Court, Philadelphia. This was an action to March Term, 1851, by Fanny Guggenheim v. Joseph D. Ellis, for breach of a promise of marriage. One of the pleas was non assumpsit, with leave, &c. The case was tried before Stroud, J. On the trial it was proved, on the part of the plaintiff, that the defendant had paid attentions to the plaintiff, and wrote letters.to her.

<p>Appeal from tbe Register’s Court of Philadelphia county.</p> <p>The will of Thomas Shields, dated 17th July, 1832, and relating to both personal and real estate, had been proved on 25th and 26th December, 1845. Two executors were appointed, viz., David Shields and David Weatherly, and letters testamentary were issued to Weatherly, who had no interest in the will, except as executor. He stated that he had settled his accounts and been discharged; and it appeared that, on the 9th May', 1848, on his petition as acting executor, he had been discharged.</p> <p>On 23d September, 1848, at a Register’s Court, an application was made, on the part of David Shields, for leave to prove the republication of the will, and the Court directed testimony to be taken. Weatherly, the former executor, was examined, and he testified, that, on one occasion, the testator read the will to him ; and, at a future time, in the fall of 1845, the testator wished him to take it for safe-keeping, and he took it home. On the said last occasion, the testator said it was his will, and he wished the witness to take care of it; Mrs. Thompson was present at the time.</p> <p>Mrs. Thompson testified, that the testator, in the fall before he died, gave the will to David Shields to read. She said she saw the testator hand the will to Weathe'rly.</p> <p>On 30th December, 1848, at a Register’s Court, the depositions were read, and the application was dismissed. From such decree David Shields appealed.</p> <p>The exceptions were, that the Court erred in overruling the evidence of republication; and it was alleged, that the testimony . proved the republication of it.</p>

A judgment was entered on 12th November, 1851, in favor of Harlan Clayton as assignee of Sharpless Clayton v. Yarnall Bailey. A rule was granted to show cause why the judgment should not be opened and the defendant let into a defence. The rule was made absolute, and on 19th August, 1852, verdict was rendered for plaintiff for $317.50.

<p>When a creditor has in his hands the means of paying his debt, but does not use it but gives it up, the surety is discharged as far as the security surrendered would have reached to pay.</p>

<p>Appeal by Simon Brolaskey from the decree of the Common Pleas, Philadelphia.</p> <p>The petition of Mary Harrison was presented to the Court of Common Pleas of Philadelphia county, calling upon Simon Brolaskey for an account, as her trustee.</p> <p>An answer was filed, denying any indebtedness on account of the trust fund; alleging that the balance of the fund had been paid over to the cestui que trust, on the 2d of June, 1831, and that no claim had been made against him from that time until the 10th of July, 1850.</p> <p>An instrument of writing in the nature of a declaration of trust, was executed on the 26th of November, 1833, by William Payne, Jr., stating that he held for Mary Harrison the sum of $1900, upon the following trusts:—</p> <p>That I will lay out and invest the same in my name, in some safe and productive stock or fund, or at interest upon real securities, and that I will (with the consent in writing of the said Mary Harrison during her life), alter, vary, and transpose the said stock, funds, and securities, at my discretion, and that I will pay and apply the interest and dividends and produce thereof to such person or persons, and for such intents and purposes, as the said Mary may from time to time, notwithstanding her coverture, by any writing or writings under her hand (but not so as to dispose of or affect the same, by any mortgage, sale, or charge, or otherwise in the way of anticipation), direct and appoint, and in default of such direction and appointment, into her own hands, for her sole and separate use and benefit, independently and exclusively of her present or any future husband, and without being in any wise subject to his control, interference, or engagement, her receipts, notwithstanding coverture, to be a sufficient discharge for the same, and upon this further trust, in the case of the death of the said Mary, to hold the said money, stocks, funds, and securities, and the annual produce thereof, upon and for such trust, intents, and purposes, as the said Mary, notwithstanding her coverture, shall by her last will and testament in writing, or any codicil or codicils in writing thereto, or any writing or writings in nature of or purporting to be a will or codicil, direct or appoint, and in default of such direction or appointment, and so far as no such direction or appointment shall extend, then in trust for all such persons or person, as would by the intestate laws of Pennsylvania, at the decease of the said Mary, have become entitled to the personal estate if her said husband, or any future husband, had died during her lifetime:</p> <p>It being, however, clearly understood, that the said Mary may, by any writing under her hand, direct to be paid over to her or to any other person or persons whomsoever during her lifetime, any part or parts of the said sum of $1900, or of the stock, fund, or securities in which it is invested, provided that the same, when added together, shall not amount to more than $900, it being the distinct intention, that the remaining principal of $1000 shall, in any event, be entirely governed by and subject to the trusts'already above declared and expressed, and shall not be subject to the power thus given over the- said part of $900. All expenses and proper charges to be allowed me for the faithful execution of this trust.</p> <p>• On the 2d of January, 1836, William Payne filed his account, showing a cash balance against him of $710.69, and a certificate of loan for $335, in all amounting to $1015.69. On the same day Brolaskey, the appellant, was appointed in his place, and as trustee he receipted for the cash and certificate. An auditor was appointed. Brolaskey produced two receipts, one dated January 2, 1836, for $710.58 in cash, signed Mary Harrison, and another dated June 2, 1836, for $330.78 in full of the trust, also signed by her. This last was composed of cash $61.25, and of a bill for $269.53, making $330.78.</p> <p>The auditor was of opinion that the payments to Mrs. Harrison were in violation of the instrument of trust, and were no discharge to Brolaskey. He, however, declined to charge interest, except from July 10, 1850, as no claim had been made upon Brolaskey for-principal or interest till application to him on July 10, 1850, a period of more than fourteen years from the receipt. He was charged with the cash balance received from the former trustee, and with the certificate, the expenses of the audit, &c., amounting to $1075.69.</p> <p>Exceptions to such report were filed, but they were dismissed by the Court, and Brolaskey appealed. Exception was taken to the confirmation of the report, and to the overruling of the exceptions.</p>

This was an action of replevin, issued by Josiah Harlan v. Anne, Mary, and Edward Harlan, for two articles of machinery for a woollen and cotton factory, viz., a picker, valued at $150, and a speeder, valued at $90. The plea was, that the picker was the property of Louis Lagarenne, and the speeder the property of Ziba Pyle, assignee of Mary Harlan. Replication, averring the right of property to be in the plaintiff.

<p>Appeal from the decree of the Court of Common Pleas, Philadelphia.</p> <p>The issue in this case arose on bill and answer. The complaint of Joshua M. Raybold and Mary his wife, against Mary E. Raybold, widow of Frederick A. Raybold, Esq., was exhibited in the Common Pleas, Philadelphia.</p> <p>It appeared that, by deed, dated 1st January, 1845, Joseph Wimer and wife conveyed to Frederick A. Raybold certain real estate, viz., certain property on Catharine street, Moyamensing, and also, a lot in Moyamensing. The property was conveyed subject to a mortgage.</p> <p>It was alleged in the bill, that the property was purchased by F. A. Raybold, with the separate money of the wife of J. M. Raybold, and in trust for her separate use. That the said Mary, a few days before the date of the deed, furnished F. A. Raybold with the consideration-money, viz., $525, with which he was to purchase the property, in trust for her. The deed was made to F. A. Raybold without a trust being declared. That, in 1845, in compliance with her request, a deed was prepared, under the direction of F. A. Raybold, whereby the estate was to be conveyed to a trustee, for the use of the complainants and their children, the rents to be paid to her; or, at her option, she to occupy the property; and, after her death, in trust for her husband during life, and then in trust for their children. It was alleged that the trust was approved of by the wife, but that the deed was not executed.</p> <p>F. A. Raybold died on 2d May, 1851, having made a will, of which the defendant was executrix, and, after certain bequests, residuary devisee.</p> <p>It was further alleged that, after the death of F. A. Raybold, was found amongst his papers, the deed to him from Wimer and wife, folded up in paper, on which was endorsed in his handwriting as follows.:—</p> <p>“ Deeds, &c.</p> <p>“Property in Moyamensing, held by me in trust for Joshua M. Raybold, wife, and children.” Signed by him.</p> <p>Also, “ To be conveyed by me to Joshua M. Raybold, at any time he may desire it.” Signed by him, and dated July 18,1848.</p> <p>That from the time of the purchase, Mary Raybold occupied the premises, without interference of her husband. It was further alleged, that the conveyance by the defendant was refused, on the ground that F. A. Raybold became surety in a bond for J. M. Raybold, the husband, for $600, and that the deed could be held for the indemnity of the respondent.</p> <p>In the answer, it was denied that the real estate in question was purchased for the separate use of the wife, or that it was paid for with her separate money. It was alleged, that the deed to F. A. Raybold was made as it was at the request of J. M. Raybold; that the property was held in trust for him, and wife, and children, and that the delay in executing the deed was owing to the draft of the deed not being returned to the decedent, and afterwards, by other relations arising between the decedent and J. M. Raybold. That, in the year 1849, the decedent became security for J. M. Raybold, one of the complainants, at his instance, for $600, and that this was done on the security of the property of which he had the legal title; and, also, that the decedent became.further liable as security for J. M. Raybold, for $150. That, further, the same person was indebted to the' estate of the decedent above $400. That he received, under the will' of the decedent, certain stock, which has been transferred.</p> <p>It was submitted, whether the defendant was not entitled to indemnity for the $600, before a conveyance was decreed.</p> <p>Testimony was given that Mary Raybold, one of the complainants, had saved money, given to her by her husband, from time to time, for herself and for housekeeping purposes, and from money received from boarders; and that this money was used in paying for the property purchased from Wimer.</p> <p>Evidence was given of declarations made by the decedent, that the property purchased from Wimer belonged to the wife of J. M. Raybold. That he spoke of the property as belonging to J. M. Raybold’s wife, and, on some occasions, he may have spoken of it as being the property of J. M. Raybold.</p> <p>It was ordered by the Court; that the executrix of the decedent acknowledge and deliver a deed conveying to a person named the real estate in question, upon the trust, that he will lease the same, and pay the rents to Mary Raybold, or suffer her to occupy the premises, or lease the same, and receive or take the rents during her life, for her own separate use, so as the same shall not he liable to the debts, or be in the power of her, husband; after her death, the property to be held for the use of her husband, if surviving; and, after the decease of the survivor of the two, then the property to be held in trust for the use of their children; and, if there be no children, then in trust for the use of the right heirs of J. M. Raybold. It was further ordered, that the deed contain a power of revocation in favor of Mary Raybold in usual form.</p> <p>It was also decreed, that the plaintiff recover costs.</p> <p>Error was assigned, 1st, To the decree that the respondent execute a conveyance. 2d, To the' decree that she pay costs. 3d, In decreeing that the respondent convey before the claims of the deeedent had been discharged, and indemnity given for liabilities.</p>

<p>1. A policy of insurance was executed to the amount of $5200 on 104 bales of cotton, valued at $50 per bale, shipped at Savannah for Philadelphia, freight to be 75 cents per bale, with primage and average accustomed: in the policy it was stipulated that'“no loss or average shall in any case be paid under five per cent, unless general.”</p> <p>On the voyage, during a storm, four bales of the cotton were washed overboard, and an action of covenant for their insured value was brought:</p> <p>It was held, that the percentage was to be counted on the whole value of the cotton insured, and not on each .bale separately, and that there could be no recovery for a loss or damage under five per cent., unless it happened by way of general average.</p> <p>2. The insurance company having denied its liability because the loss was • loss than five per cent, of the whole invoice; and also because by the custom of the port of Philadelphia such a loss was not recoverable, the jury negatived the custom; but on the other ground judgment was entered for the company : it was held, that these defences were not inconsistent, and that the finding against the custom did not preclude the company from having judgment on the other.</p>

This was an action of scire facias, by Patrick Sweeny v. David McGittigan, owner, and Thomas Ash, contractor, upon a mechanic’s claim for work done and materials furnished, in and about the erection of a brick dwelling-house, on the east side of Delaware Seventh, south of Fitzwater street, in the district of Moyaraensing. The claim was entered in the Court of Common Pleas on 8th September, 1845.

Error, to the Common Pleas of Chester county. These were two suits, one brought by James M. Sellers, administrator of the estate of-Davis, deceased, v. Frederick Holman, surviving executor of Frederick Holman, deceased, the other by the same plaintiff v. Samuel Holman, administrator de bonis non cum test. an. of Frederick Holman, deceased. The writs were issued on 3d April, 1851. The cases were tried together.

On 20th March, 1849, a petition .was presented to the Quarter Sessions, asking to have a strip of ground, marked in a diagram accompanying the petition, separated from the township of Norwegian, and annexed to the township of East Norwegian. Commissioners were appointed, who reported that in their opinion “ the prayer of the petitioners should be granted.” Exceptions to the report were filed on the 19th June, 1849. These proceedings were undetermined.

<p>Error to the District Court, Philadelphia. >V‘’'</p> <p>This was an action on the case brought by Clement L. Hughes v. The Farmers’ Hay and Straw Market Association, for excluding him from the market. The summons was issued on 17th February, 1851.</p> <p>The association was incorporated by the Act of 13th April, 1838. The company was authorized to hold real estate. It has power to make rules and ordinances relating to the .admission of members, and the ordering of the other concerns of the corporation. It is enacted, that the “ company shall not buy or sell any hay or straw, directly or indirectly, for the benefit of the said company, nor any other article of personal or real property not absolutely necessary for the purposes of the incorporation.”</p> <p>The company had a market site in the Northern Liberties. The practice had been to allow farmers the free use of the market, for the sale of hay and straw, being the product of their own farms, upon paying a small charge, 25 cents per load, to the company, for weighing their hay. The plaintiff was a farmer, occupying a farm of over 100 acres. At the time of bringing suit, he was a stockholder in the company.</p> <p>A by-law of the company provided that no “ huckster shall be allowed to sell hay or straw in the market, without having a written license from the board of directors, signed by the president.”</p> <p>A notice, dated December 16, 1850, was directed to hay and straw dealers, to the effect that the permission before awarded to them, of entering the premises of the association, for the purpose of selling hay and straw, is withdrawn by the directors, and they were notified not to enter. The by-law under which the notice was given was adopted on 5th November, 1844.</p> <p>It was proved that the plaintiff, in 1850, had altogether about 375 tons of hay, of which only about 150 tons was raised on his own farm. He was excluded from the market, and the suit was brought to recover therefor.</p> <p>The Court below directed a nonsuit, which was assigned as error.</p>

Error, to the Common Pleas of Philadelphia county. This was a feigned issue directed by the Register of Wills to try the validity of the will of Ann Ryan, late the wife of the plaintiff, which was dated 27th January, 1852. In the issue Thomas Ryan was plaintiff and Peter McMahon defendant.

<p>Error to the Common Pleas of Delaware county.</p> <p>This was an action on the case for an obstruction of a way, brought by Esther Jackson v. William Garrett. It was brought to determine the right of way across land of defendant to. a public road.</p> <p>The case was tried before Haines, J. He stated the case, generally, as follows :—</p> <p>“Benjamin Lobb, who died about the year 1770, devised the land through which the contested road passes, to his son Isaac Lobb, who held, it till his death, which happened about the year 1803. Isaac Lobb, the elder, devised the same tract to his son Isaac Lobb, the younger, who held it till his death, which happened in 1843; and the plaintiff holds a life estate in the same land, and is now in possession. Thus we have a title in the plaintiff, derived from former owners as far back as the year 1770.</p> <p>“ On the other hand it is admitted that Thomas Garrett, the grandfather of the defendant, purchased the land through which the contested portion of this road passes so early as the year 1773. He owned it until his death, which happened in the year 1839, when the defendant became the owner of it, in common with his brothers and sisters; and in 1844, he obtained from them a deed for their shares, and became the lawful owner of the whole tract. Thus a title in the defendant is traced from the year 1773, through former owners down to the present occupier.”</p> <p>“It appears that Thomas Garrett, as early as 1795, owned two tracts of land, one whereof was situated above, or north of the Lobb tract, and the other below, or south of the same, both of them adjoining the premises of Isaac Lobb, and his tract lying directly between them. The private roád, a part of which is now in dispute, ran through the three tracts, from a public road, skirting the southern border of the lower Garrett tract, to a public road skirting the northern side of the upper Garrett tract. The plaintiff, being in the possession of the Lobb premises, claims the right of using that part of this private road which runs through the upper Garrett tract, and it is this supposed right which is now-interrupted.</p> <p>“ The private wa.y here spoken of has been used for a period beyond the memory of the oldest witness, and is remembered so long back as 1795 as being used indiscriminately by the families of Thomas Garrett and Isaac Lobb, whenever either of them had occasion, and in whatever manner their conveniences required. Two alterations at different times have been made in the location of the road: one in the year 1800, at the upper termination of the road, on the land held by Thomas Garrett; and one about 1807, at the crossing of the line between Thomas Garrett and Isaac Lobb, a part of which change was on the ground of each of the owners of the premises, and could not therefore have been made without the consent of both.' With these exceptions, the road has maintained its position from the earliest recollection thereof to the present moment.”</p> <p>On the trial several points were submitted on the part of .the defendant: the third and fourth and fifth were as follows:</p> <p>3. The foundation of the presumption of. a grant arising from the use of a way over another’s land, is the difficulty of accounting otherwise for a long-continued use, injurious to the interest of the owner and adverse to his will, and any evidence therefore which sufficiently accounts for the use in any other way rebuts and defeats the presumption.</p> <p>4. In this case there is evidence that the way in question passed not only over lands of Thomas Garrett, but extended to and. over those of Isaac Lobb; also, that its origin had reference to the convenience of Thomas Garrett only, and not to that of Isaac Lobb, and that it was used by Isaac Lobb by the. consent of Thomas Garrett, and by both parties for their mutual accommodation, which evidence is explanatory of the enjoyment, weakens the presumption of a grant, and tends to repel and defeat it.</p> <p>5. There is evidence for the consideration of the jury that the use of the way by Isaac Lobb was with the consent and by the leave of Thomas Garrett; and, if the jury believe that evidence, it explains the nature of the use, divests it- of any claim to an adverse character, and the plaintiff is not entitled to recover.</p> <p>Haines, President J., charged the jury, intqr alia, as follows: “ The law applicable to this case appears to be well settled, viz., ‘that an uninterrupted enjoyment of a right of way, over the land of another, for the space of twenty years and upwards, unanswered and unexplained, affords presumptive evidence of title.’ This presumption may be repelled by evidence which accounts for the possession or user, without resorting to a title by grant or otherwise; but, in the absence of such evidence, tending to show that the long-continued use of the way may be referred to a license or other special indulgence that is either revocable or terminable, the conclusion is, that it has grown out of a grant by the owner of the land, and has been exercised under a title thus derived.”</p> <p>To the third point, he answered: “ It is immaterial what is the foundation of the presumption of a grant arising from the use of a way over another’s land; it is enough, in the present instance, to know that satisfactory evidence which accounts for the use, otherwise than under a claim or assertion of right, rebuts and defeats the presumption.”</p> <p>To the fourth, he answered: “ There is evidence in this case, that the way in question passed not only over lands of Thomas Garrett, but extended to and over those of Isaac Lobb also; but I do not recollect any evidence that its origin had reference to the convenience of Thomas Garrett only and not to that of Isaac Lobb and those under whom he claimed. The jury will say, from the whole case, what was the origin of this road, and to whose convenience it had reference. They will also say whether the evidence is satisfactory or otherwise, that Isaac Lobb used the road in question by the consent of Thomas Garrett. If they shall come to the conclusion that such was the fact, then it will explain the nature of the enjoyment, and will weaken the presumption of a grant and tend to repel and defeat it.”</p> <p>He further charged: [“If the enjoyment is shown to have originated in mistake, or by favor or license; or if it was commenced and continued in any manner which does not indicate an assertion of right, the enjoyment is not adverse, and the presumption is not created. But the enjoyment, without interruption, for more than 21 years, as in this case, is evidence of a character so strong of the existence of a right, that it leads to the legal conclusion of an adverse enjoyment, and the jury should not suffer themselves to infer mistake, favor, or license, upon small and trifling circumstances. Still the jury should not forget that either of these, satisfactorily shown, is sufficient to repel the presumption of a grant,”] &c.</p> <p>June 1, 1852, verdict for plaintiff.</p> <p>It was assigned for error: 1 and 2, that the Court erred in not sufficiently answering the defendant’s third point, and in the answer to it.</p> <p>3. In the answer' as quoted to the third point, and to the portion of the charge in brackets.</p> <p>4. In saying in answer to the fourth point, “ They (the jury)' will also say whether the evidence is satisfactory, or otherwise, that Isaac Lobb used the road in question by the consent of Thomas Garrett.</p>

This was an action of covenant by John Sweeny v. The Frank-N lin Fire Insurance Company of Philadelphia, upon a policy of | insurance.

<p>1. A constable cannot lawfully purchase at his own sale, and one deputed by him to make the sale is subject to the same disability. But where the constable personally attends and superintends the sale and employs one merely as a crier, the latter may purchase at the sale.</p> <p>2. Such a purchase, if not actually fraudulent, would be only voidable and not void: but where the proceeds of such purchase are applied to the debt of the defendant in the execution, the latter cannot take advantage of the illegality except by claiming a resale or demanding the property, after tendering the purchase-money.</p>

This was an action of covenant to March Term, 1850, by A. J. Brazier v. W. L. Banning, to recover ground-rent. Held: under the second section of the Act, that a judgment taken for a part of a claim admitted to be due, whilst the residue was denied on a statement of facts which constituted a defence, was the only judgment which could be recovered in that action.

Benjamin Sharpnack having made a will, dated March 10,1832, died about the 10th November, 1834. He had never been married, and at the time of his death left, as his next of kin, the appellant, Ann C. Stook, a daughter of' a deceased brother, and three sisters, Mary and Sarah Sharpnack, and Elizabeth Hergesheimer, wife of George Hergesheimer, formerly Elizabeth Sharpnack.

This ease was brought tip from the Nisi Prius. It was an action of trespass on the case to March Term, 1850, by Kenderdine v. Phelin, for debauching the plaintiff’s daughter. The narr. contained two counts; in the one was alleged a carnal knowledge and getting with child, concluding with a per quod in the usual form; in the second the death of the daughter was also alleged. The plea was not guilty. The case was tried before Gibson, J., in December, 1851.

The writs of error in these eases were issued on feigned issues, directed by the Common Pleas of Montgomery county, in -which James R. Smith was plaintiff and George B. Reiff was defendant. Daniel Reiff, a brother of the defendant in the issue, had been a storekeeper, and was indebted to the plaintiff, a merchant of Philadelphia, for dry goods purchased at various times.

<p>This was a certiorari issued to the Common Pleas of SchuyUdll county, at the instance of Thomas Kimber and others.</p> <p>The object of the certiorari was to have a review of the proceedings or judgment of the Court of Common Pleas in the matter of an appeal to that Court by Kimber and others, from the decision of the County Commissioners raising the valuation of certain lands, and otherwise acting in relation to the assessment of taxes.</p> <p>Kimber and others were the owners of the undivided half part of a tract of land, called the “Wolf Creek tract,” in Cass township, Schuylkill county.</p> <p>Some years before the triennial assessment in 1850, the owners of the tract had leased several coal veins on the tract, which leases had not expired at the time of the assessment in 1850. The lessees, under the terms of the lease, had certain houses erected on the land, and several engines placed upon it. Under the terms of the lease the steam-engine and other improvements mentioned were to bo the property of the tenants, at the expiration of the lease.</p> <p>The assessors assessed the half of the houses on the land, 42 in number (three of which only were stated to belong to the owners of the land), and the one-half of the engines, at $3551, and assessed the land at $30 per acre. Notice was given by the assessor of the assessment, the amount of taxes assessed, and of the time and place of appeal. At the time appointed for the appeal, the owners of the land appeared by their agent, and objected to the houses, engines, and breakers being assessed to them, as those articles did not belong to them, but were the property of - the lessees of the mines. No objection was made to the valuation of the land.</p> <p>After the appeals were held, the commissioners of the county, as it was alleged, finding that all the lands in Cass township were valued too low, compared with the lands of equal value in the adjoining townships, raised the valuation of this tract to $40 per acre, and retained in the assessment the articles objected to as belonging to the lessees of the coal mines and not to the owners of the land.</p> <p>The commissioners gave no notice to the owners of the land of the raising of the valuation, or of their intention to raise the valuation, and the first knowledge the owners of the land had of the increased valuation, was the demand by the collector for the taxes charged upon the increased valuation and upon the articles objected to at the appeal.</p> <p>An appeal was made from the decision of the commissioners to the Court of Common Pleas of Schuylkill county, under the Act of 1850. , '</p> <p>On the 18th June, 1851, by order of the associate judges (the president judge dissenting), the appeal was dismissed.</p> <p>The case was brought up by certiorari, and it was assigned for error, that the Court erred in dismissing the appeal, and in not reducing the valuation to that returned by the assessors, and in refusing to strike out of the assessment the property not belonging to Kirnber and the other owners.</p> <p>The appeal'to the Court'was taken under a provision in an Act of Assembly, passed 26th April, 1850, applying only to the county of Schuylkill (see Acts of 1850, p. 627-8).</p> <p>It is provided, in the 7th section of the Act, as follows:—</p> <p>“ That any freeholder of the county of Schuylkill, or owner of property in said county, who may feel aggrieved by the assessment of the property of such freeholder or owner, and be dissatisfied, with the decision of the commissioners of the county upon an appeal to them made from the said assessment, may appeal from the decision of said commissioners to the Court of Common Pleas of said county, and for that purpose may present to the said Court, at the next term thereof, after the said commissioners shall have informed such freeholder or owner of their decision, a petition setting forth the facts of the case, and the said Court shall proceed at the earliest convenient time, to be by them appointed, and of which notice shall be given to the said commissioners, to hear the said appeal, and the proofs in the case, and shall make suclj decree, affirming or reducing the assessment complained of, having due regard to the valuation and assessment made of adjoining or neighboring estates or property, or in the case of a double assessment of the same property, wholly striking out the one assessment co'mplained of, as to them shall seem just and right,” &c.</p>

The object of the proceeding in this case was to have a review of the proceeding or the judgment of the Court of Common Pleas' of Schuylkill county, in the matter of an appeal to that Court by Joseph… Held: at which the owners did not attend, the county commissioners raised the valuation of the lands above referred to, to $113,210.

<p>Á person seised of the title to the undivided two-third parts of a tract of land subject to the right in the hpirs of S. P. to all stone or fossil coal existing in the undivided half part of the said tract, conveyed to two persons all his interest in the said land, “ excepting and for ever reserving the liberty and privilege for the heirs and representatives of S. P. deceased, to dig, take and haul away all the stone coal that is, or may hereafter be found on the above described tract of land.”</p> <p>It was held that no part of the stone coal passed to the grantees under the said deed. Whether the words used in the deed would estop the grantor or those claiming under him from claiming any part of the stone coal as against the heirs of S. P. not decided</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was a scire facias ad eomputandum et rehahendum terram issued in favor of Samuel McKelvy, against Erasmus De Wolfe, who survived William McGlensey, who were at one time trading under the firm of E. De Wolfe & Co. The writ of sci.fa. was dated 3d May, 1844.</p> <p>Two judgments had been obtained in the District Court, Philadelphia, against William Hall & Co., of which firm Samuel Mc-Kelvy was a partner. The first of the judgments was for $724.73, in favor of Wolfe & Boswell, and the second was for $1469.52, in favor of E. De Wolfe & Co. Writs of testatum fi. fa. on these judgments were issued to the county of Allegheny, and, on the 22d March, 1839, were levied on the interest of Samuel McKelvy in certain real estate situate in the city of Pittsburgh, between Penn street and the Allegheny river, upon which were erected seven two^story brick dwellings, &c., and brick and lumber yards. An inquisition was held on the premises, and the jury found that the premises were of the clear yearly value sufficient, beyond all reprises, within the space of seven years, to satisfy the debt, interest, and costs in the writs mentioned. They also found that the clear yearly value of the premises was $2000. The return to the writs being made, writs of liberari facias were issued, and on 3d June, 1839, alias writs were issued; and on the 25th June, 1839, the sheriff of Allegheny county delivered possession of the premises to the agent of the plaintiffs in the writs.</p> <p>In 1844 the writ of scire facias ad eomputandum, before mentioned, issued, commanding the sheriff to notify De Wolfe to appear and show cause why he ought not to account to McKelvy for the appraised value of the premises, from the time of judgment, by the proceedings aforesaid paid, until, the time of the issuing of this writ; and why the tenements should not be delivered to McKelvy, &c.</p> <p>The possession of the premises was retained till the 1st April, 1845, being five years and above nine months; on which day the possession was voluntarily surrendered.</p> <p>The material question in the case was, whether the parties receiving possession under the writs of liberari facias were bound to account for the amount of the valuation and appraisement, or only for the amount actually received by them. If they were hound to account for the amount of the appraisement, it was alleged that their debts would have been paid in about 16 months, and that the premises should have been redelivered about the 25th September, 1840.</p> <p>On the 18th May, 1847, it was agreed between the parties to the sci. fa. ad computandum, that a judgment quod computet should be entered. Auditors were appointed.</p> <p>Before the auditors, a plea on part of the defendant was filed, in which it was alleged that he used reasonable skill and diligence in the management of the premises; and that he had not, at the date of the issuing of the writ in this ease, collected or received any other moneys than those stated in his account, and that he had not (then) received the amount of his judgments; but that $921.93 thereof remained unpaid at the time of the issuing of the writ of sci. fa. in this case, and claiming for labor and expenses. To this plea was appended an account, stating a balance of $921.93 against the plaintiff in this proceeding.</p> <p>This plea was traversed, and it was denied that the defendant had skilfully let and managed the premises; and it was alleged that the premises were worth the yearly sum of $2000, &c.; and the plea was also demurred to as insufficient.</p> <p>A replication was filed, and a joinder in demurrer.</p> <p>The auditors certified certain issues of fact and law. After-wards, viz., on 30th November, 1847, a jury was called.</p> <p>The plaintiff’s counsel offered in evidence the deposition of Grey, Pentland, and of nine other persons. Objection was made to the part of the deposition of Pentland, in which was contained the answer to the question, What did Dr. Black then offer to take the property at, if extended ? The answer, in part, was as follows :—</p> <p>My answer to the question is this, that either Dr. Black offered $2000, or that Mr. Rind offered $2000, or that one of these persons offered $2000, and the other $1500. I am not able to distinguish which.”</p> <p>This evidence was objected to, as hearsay and as not relevant, and it was rejected.</p> <p>On part of the plaintiff, other depositions were given in evidence.</p> <p>On the part of the defendant, was given in evidence the deposition of O. Metcalf, Esq., and also the depositions of a number of others.</p> <p>Mr. Metcalf was counsel for a creditor or creditors of McKelvy, and he stated that, in 1842 or 3, he was called on by Grey, who said that a design existed to have the property in question sold for a small sum, &c.; and the witness testified, that after he discovered that the property had been up for sale,' and that condemnation had been confessed, he and Grey each left with the sheriff a standing bid for the property.</p> <p>In the deposition of Gfrey referred to, it was therein, inter alia, stated that, at the request of MeKelvy, he was present at the inquisition, and was sworn; and that he there stated, that he believed the property to be worth $2000 a year; that he would have been willing then to execute a lease, as was proposed, for the payment of the rent of $2000 á year; that he -did not want to take the property himself, but was willing to go security in the lease. He afterwards said, the lease that was proposed was to be for the term of seven years. That, in the presence of the jury, he proposed to the attorney of De Wolfe & Co.-, to join in a lease until their debt would be paid, or for seven years.</p> <p>He further said, in reply to a question, that if he held the property under a liberari facias, and were liable to be turned out on paying the debt, he said that this would have qualified the matter very much.</p> <p>To part of Metcalf’s deposition before referred to objection was made, on part of plaintiff, because,</p> <p>1. It purports to contradict James Grey, a witness, previously examined, and who was not interrogated on the subject.</p> <p>2. That it does not contradict him, and is irrelevant.</p> <p>3. That it was a consultation between counsel and client, and it is the privilege of the client that the conversation should not be revealed.</p> <p>The Court admitted the evidence, and exception was taken.</p> <p>Certain points were submitted to the Court, and Jones, J., charged the jury, and the counsel for the plaintiff excepted to the charge.</p> <p>The exceptions were, 1. That the Court charged that the taking possession by defendant under his liberari facias of the premises, which were delivered to him according to the valuation and appraisement of the inquest, at the clear yearly value of $2000, was not conclusive; but that he might be allowed to show that the actual rents, issues, and profits were less, and that he was only accountable for what he received, if he used skill and diligence in the collection thereof.</p> <p>2. The Court being requested to charge upon the weight and efficacy of that part of Grey’s deposition in which he stated an offer on his part to become the surety of MeKelvy, the plaintiff, and Ryan, in a lease of the premises at $2000 a year, with a knowledge of the inquisition and extent, and the consequences thereof (if the jury believed the security to be sufficient), charged that it was not conclusive evidence of the annual value, if made upon the assumption of a long lease, and with a view to improvements; nor is it strong evidence of the annual value, taken as it was with respect to the number and kind of improvements.</p> <p>3. The Court charged that it was impossible for the defendants to make any such lease as the witnesses spoke of, or a lease for any time, which would not be determinable upon the payment of the judgments and costs.</p> <p>4. That the plea, to be pertinent to the matter, must be understood to refer to the premises as they were when taken in respect to the number and kind of improvements, and not to their capabilities for improvement, u</p> <p>5. That if they should find that the defendants did use the skill and diligence required by law, then they should further find how much they did receive.</p> <p>6. The defendant’s counsel asked leave of the Court to separate the account current of McOaskey, the agent of De Wolfe & Co. in the management of the property, from his deposition, and to send it out with the jury. This was allowed, and plaintiff’s counsel excepted.</p> <p>December 6, 1847, verdict of the jury was rendered, in which the jurors say, that they find that the defendant did, from the time the premises were delivered, until the time of the institution of this suit, proceed with all reasonable diligence and skill to let and manage the premises and collect the annual rents, issues, and profits, and collect as much as the premises were capable of producing, and that the rents, &c., collected until the 1st April, 1845 (the time of redelivery of possession), amounted to $3734.49.</p> <p>On 31st December, 1847, judgment was entered for the defendant on the demurrer.</p> <p>On 9th February, 1850, the auditors were directed to proceed, and on the 30th March, 1850, their report was filed, and the Court ordered judgment to be entered for the defendant.</p> <p>It was asigned for error, 1. The Court erred in their charge in answer to the plaintiff’s first prayer, and in entering a judgment in favor of defendant on the demurrer.</p> <p>2. In their charge as to the effect of Grey’s deposition embraced in the plaintiff’s second prayer.</p> <p>3. In rejecting that part of Pentland’s deposition embraced in the plaintiff’s first exception.</p> <p>4. In admitting that part of O. Metcalf’s deposition embraced in plaintiff’s second exception.</p> <p>5. In allowing the defendant to separate the account current from McCaskey’s deposition, and send the same to the jury.</p>

This was au action of assumpsit by the Ocean Bank of the City of New York v. William H. Lord and J. H. Grill, trading as the firm of William H. Lord & Co., upon a promissory note in the following words, viz.: Philadelphia, June 2, 1851. $716.56. Six months after date we promise to pay to the order of Daniel Adee, seven hundred and sixteen dollars and fifty-six cents, without defalcation, for value received. Signed, Wm. H. Lord & Co. Endorsed, Daniel Adee.

This case came up from the Nisi Prius. It was an action on the case by John Hagerty v. Jesse Godley, to recover damages for injuries sustained by the plaintiff by the falling of a storehouse owned by the defendant, and situate on Granite street, Philadelphia.

This was an action of ejectment, in the District Court, Philadelphia, brought by George N.'Tatham, on the 25th of February, 1851, against William Jones, to recover possession of a frame dwelling and lot of about 2]- acres of land upon Windmill Island, in the river Delaware opposite the city of Philadelphia, lying south of, and adjoining to the canal cut through the said island, and bounded on the south by a fence and a line of trees, and east and west by low water mark of…

This was the case of an attachment execution, issued under the Act of 16th' June, 1886, relating to executions. The execution attachment in question, was- issued on the judgment of Sheetz v. Samuel Schlater, for $106.18. The attachment execution issued against Samuel Schlater, defendant, and John Hobensack, as garnishee.

A WRIT of quo warranto, in the name of the Commonwealth ex relatione Michael Murphy, was issued in this case, upon a suggestion filed on the 10th January, 1858, with leave of Court. No rule to show cause had been previously granted, or notice given to the respondent.

This was a suit brought before a justice of the peace by Jacob Saeger v. the Burgess and Town Council of the borough of Allentown, to recover back the amount of taxes illegally assessed, which had been paid by Saeger, the plaintiff, to the tax collector. The illegal tax was one laid for borough purposes upon moneys at interest.

.This was an action of replevin by Tindall v. Cadwalader, for certain cattle belonging to the plaintiff, which had been distrained for rent. Gregg, the tenant of Cadwalader, received cattle to pasture on the land demised, and the cattle of the plaintiff were there in the daytime and sent home in the evening. Whilst on the premises they were distrained for rent due by Gregg.

<p>Error to the Common Pleas of LeMgh county.</p> <p>This was an action brought before a justice of the peace by-Weaver v. Kuntzman, on an alleged warranty of a gray horse, which had been sold by Kuntzman to Weaver for $90, — and paid for by Weaver. On the part of the plaintiff, it was alleged that the defendant warranted the horse to be sound, whereas he was spavined and unsound. The horse was left at, the farm of the defendant, who sent him back, and, after some months, he was sold as a stray.</p> <p>On the trial, the plaintiff proved by Eiley, that he saw the horse in Weaver’s possession, and that he, the witness, rode him and thought he had the bone spavin. To this testimony the defend: ant’s counsel excepted.</p> <p>Another witness testified, that after the sale to Weaver, Kuntzman said he had warranted the horse “ solid and sound in his hands.”</p> <p>Another stated that Kuntzman said he would warrant the horse solid and sound, so far as he knew.” He said “ the horse had no " failings so far as he knew.” “ I don’t know that he warranted him to be without failings.”</p> <p>A. I. Seagreaves was also examined and said, that Weaver-brought a gray horse to him; that he examined him, and he observed a spavin lump on his leg; that the affection might have existed for several months without being discovered till the horse became lame. He said that when he saw him he was lame; and that he would not have given $40 or $50 for him. He said he saw him since, and the enlargement and lameness had disappeared. He said he could not say it was the same horse which was bought from Kuntzman. The testimony was excepted to on part of defendant.</p> <p>Another witness testified that Kuntzman said that he would warrant the horse solid and sound, so far as he knew; that he said the “horse had no failings so far as he knew.”</p> <p>Other testimony was given on part of the plaintiff.</p> <p>On the part of the defendant it was testified, that the horse was not lame whilst Kuntzman had him; that he had a lump on his hind leg, but that it was not spavin.</p> <p>The defendant’s counsel offered to prove that the horse was worth $90 when Weaver bought him. It was alleged that this was overruled. The judge said he had no note of the offer and exception, but, if agreed to by counsel, he would seal the bill. It was sealed. This was the third bill.</p> <p>It was alleged that it was further offered to prove that the horse was not spavined two months after the sale to Weaver and while in his stable. The judge made the same statement as with respect to the third bill.</p> <p>Also offered to prove that the horse never went lame since he was returned by Weaver. Overruled. Fifth bill.</p> <p>Also offered to prove that the horse was worth more after he was returned than Weaver paid for him. Overruled. Sixth bill.</p> <p>It was- offered to prove that the horse was not lame when he was returned, and had no spavin. Overruled. Seventh and eighth bills.</p> <p>Also offered to prove the price paid for the horse at public sale when sold as a stray. Objected to and overruled, and exception taken. Ninth bill.</p> <p>The judge charged that the plaintiff could not recover unless there was a warranty of the soundness of the horse. Also, that “if, as it seemed from the testimony to have been, it was a warranty of soundness so far as Kuntzman knew, then the vendee must show that Kuntzman knew, at the time of the sale, that the horse was unsound.” Also, that if he had warranted the horse, knowing him to be unsound, the vendee, if he had paid for the animal, might return it and recover the price paid, with interest from the time of the return.</p> <p>He charged that the evidence of Seagreaves was of no consequence unless the horse was the one sold by the defendant.</p> <p>Verdict was rendered for the plaintiff for $95.70</p> <p>Error was assigned to the admission of the evidence of Diley and Seagreaves, and in overruling the evidence as stated in the other bills of exception; and to the eharge that, supposing Kuntzman to have warranted the animal, the vendee, if he had paid for it, might return it, and recover the price paid, with interest from the time of the return.</p>

<p>Error to the Common Pleas of Lehigh County.</p> <p>This was an issue joined between Amos Bacher, as plaintiff, and The Washington Beneficial Society of the Borough of Allentown, as defendant.</p> <p>In January, 1843, Bacher was admitted as a member of the said society; but was expelled therefrom on the 11th September, 1848. He made application to the Common Pleas for a rule to show cause why a mandamus should not issue for his restoration to membership; and an issue was directed as above stated.</p> <p>By an article of the by-laws, it was provided that a member of twelve months’ standing was entitled to receive three dollars per week, when declared by judges to be in such state of bodily or mental disease as to make him a proper subject for the benefits of the society: and by another article it was provided that, if any member, whilst in the receipt of the weekly allowance, was detected at his occupation or any other business or employment, except giving orders or instruction for his business, he was liable to expulsion and forfeiture of all rights and interest in the funds of the society.</p> <p>In another article it was provided, that no member shall he expelled without having first had a copy of the charge or charges exhibited against him (except in certain specified cases), certified from the minutes by the secretary and delivered at his usual residence at least twenty-four hours before; and, in case of his neglect to attend, he shall be considered guilty and expelled accordingly.</p> <p>. On the trial, there was offered in evidence, on the part of plaintiff, a notice to Bacher to appear at the next stated meeting .of the society. The notice was signed by the secretary, and was dated on 9th, and was served on the 11th September, 1848. The paper was objected to, principally as not containing the whole of the notice. Its admission was excepted to.</p> <p>There was next offered a written communication to the society from the attorney of the plaintiff, requesting his reinstatement. The paper w'as read at a meeting of the society. Its admission was excepted to.</p> <p>It was also proved, under objection, that the secretary, of the society, who served the notice upon Bacher to'appear, stated that the notice was served upon him only an hour or two before the meeting was held at which he was expelled.</p> <p>Bacher was not present at the meeting of the society when he was expelled.</p> <p>On the part of the society, it was offered to prove by P. H. Lehr, the secretary, that the plaintiff waived all irregularities in the notice, at the time of its service, and that he promised to attend the meeting. He was objected to, as incompetent, on the ground of interest, and was rejected.</p> <p>' On the part of the society, it was also offered to prove the statement made by the secretary to the society, on the evening of the expulsion, in regard to the notice which he served on Bacher. It was rejected.</p> <p>The minute-book and record of the proceedings of the society, at meetings on 14th August and 11th September, 1848, were offered. They were rejected.</p> <p>Evidence was given with the view to show that Bacher had performed labor or attended to business whilst receiving the allowance out of the funds of the society.</p> <p>Jones, J., charged the jury, inter alia, that the Court could examine only into the regularity of the proceedings of the society, not their justice (see 8 W. 8er. 247-250; 4 Barr 519): 8 Harris 251, Commonwealth for Fischer v. The German Society. He submitted to the jury, whether a copy of the charge exhibited against Bacher, certified from the minutes by the secretary, was delivered at his residence, at least 24 hours before the trial before the society. He charged, that the society had no right of itself to dispense with such form, or to act on the subject, unless the defendant appeared and took defence, or unless he waived the irregularity.</p> <p>The judge further charged, that if the jury found for the relator they must not take into view, in the estimate of damages, his costs and expenses in this proceeding; but that he considered, that expulsion from the society, into the treasury of which he had paid his weekly duos until he became entitled to the benefits of the society, was an actual injury, for which damages should be given, but only to the extent of that injury. That there was nothing in the case to inflame the damages.</p> <p>Verdict for plaintiff, for $75 damages.</p> <p>Error was assigned — 1. To the admission of the notice to Bacher to appear. 2. To the admission of the application to restore Bacher. 3. To the admission of the statement of the secretary, that Bacher had not received timely notice. ' 4. To the rejection of the secretary of the society as a witness. 5. To the rejection of the statement made by the secretary to the society, as to the conversation with Bacher when the notice was served upon him. 6. To the rejection of the minutes in the minute-book of the society, “containing the proceedings of the meetings of August 14 and September 11, 1848, as stated in the 7th'bill of exceptions.” 7. To the portion of the charge, viz., that expulsion from the society was an actual injury, for which damages should be given to the extent of that injury.</p>

This was a suit brought by the firm of Craige-& Peterson against the firm of Christie & Shaw, on a promissory note and book account. The note was dated 2d June, 1851, signed by Christie & Shaw, for $332.42, payable six months after date to the order of Craige k Peterson. The book account was for goods sold and delivered in June and July, 1851, amounting to $130.90. A copy of the note and book account was filed.

This was a proceeding had on the application of Weber v. Steckel, before a justice of the peace. In June 1850, cattle of the defendant broke, from the highway, through the fence of the plaintiff, into his field in which wheat and rye were then growing. The cattle were driven out by the plaintiff and others in his employ, to the barn of the defendant and left there. The plaintiff afterwards made application to a justice of the peace.

This ease came up from the Nisi Prius. It was an action on the case, in assumpsit, by the Bank of Mobile v. Charles P. Relf, upon a draft for $1851.73, dated February 13, 1849, drawn by C. C. Hazard on Relf, to the order of J. M. English, cashier, who endorsed it to the Bank of Mobile.

Error, to the Common Pleas of Wayne county. This was an amicable action in debt, entered November 16,1849, by Warren Leonard v. C. W. Wheelock. The pleas were nil debet, payment, set-off, with leave to give the special matter in evidence; and also, specially, a discharge under the bankrupt law of Massachusetts and New York.

This was the case of a lien for materials furnished by Taylor and Williams, the same amounting to $>568.21-|-, and being filed against thirty-two three-story brick houses, situate in the district of Spring Harden, sixteen of them being situate on the north side of Wood street, between Broad and Thirteenth, &c., the said buildings forming a continuous row of houses; and the other sixteen being situate on the south side of Bloom alley, between Broad and Thirteenth streets,…

Error, to the Common Pleas, Philadelphia. This was scire facias, under the Mechanics’ Lien Act, by John Kelly against John Brown, owner, and William G-. Marshall, contractor, for materials furnished.

This was an action of assumpsit, brought by Thomas Neilson against George D. Wetherill & Co., on a promissory note, of which the following is a copy. $933 . Philadelphia, July 20, 1850. Six months after date, we promise to pay to the order of Thomas Neilson, $933 without defalcation, value received, payable at the Bank of Northern Liberties. Geo. D. Wetherill & Co. The plea was payment with leave, &c., and notice of special matter was given.

This was an action on the case by George Peabody v. The President, Directors, and Company of the Rank of the United States. It was brought on two obligations of the Bank of the United States. By one of these, the bank promised to pay at the banking-house of De Rothschild & Brothers, in Paris, 2580'francs, on 15th October, 1841. A copy of this paper, which had been filed of record, was withdrawn by the plaintiff with the leave of the Court, before judgment.

This was an action on the ease brought by John Stuber against George Reimer, for obstructing a private way. .

This was an appeal from the judgment of a justice of the peace, • in an action of trespass brought by Nathan Rex against George Lauchner and others for taking and carrying away a quantity of grain in shock. On the trial, on the part of the plaintiff was offered the deed of Charles Fritzinger and wife to Nathan Rex, the plaintiff, for above seventeen acres of land. This was objected to on the part of the defendants, but was admitted.

<p>The endorser being also the payee of a negotiable note transferred before it became due, no evidence of irregularity in the transfer having been given aliunde, is not a competent witness for the maker, in an action against the maker by the endorsee, to prove that the note had not been negotiated in the regular course of business, that it was without consideration as between the maker and the payee, and that the endorsee knew it when he took the note. The rule in Walton v. Shelley re-affirmed.</p>

This was an action of assumpsit by Robert Whiteside et al., as executors of the will of Robert Whiteside, deceased, v. Samuel Whiteside, executor of the will of Samuel Whiteside, deceased. It was brought to recover a legacy. In 1812 Cochran Whiteside, a brother of Samuel Whiteside, deceased, died in Westmoreland county, unmarried and without issue. Samuel Backhouse received letters of administration, and filed an inventory amounting to $1026.72.

This was an issue of devisavit vel non, between Norris as plaintiff, and Priscilla T. Sheppard, Josiah M. Reeve, William, Emma, Letitia, and Richard M. Reeve, defendants. The issue had been directed to try the validity of an alleged will of Dr. M.. M. Reeve. Dr. Reeve had been a physician for a number of years in Philadelphia, and in the year 1851, left for Central America to join a party engaged in mining operations at Fort Bowen,'on the Isthmus of Panama.

The material question in dispute in this case related to the construction of a part of'the •will of John Meckley, Senior. The portion of the will in question was as follows :— “I give and bequeath unto my son John, his heirs and assigns, for ever, the plantation which he has in possession, about 92 acres, in Lancaster county.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit by John Maulé to the use of Felton Bartle v. O. Ashmead, administrator of the estate of Rebecca Peiffer, deceased. A verbal lease of a piece of land was made in April, 1845, by Rebecca Peiffer to John Maulé, for five years, to run from the 1st of April, 1845, at a rent of $100 for the first year, and $150 for each of the other four years. In pursuance of the lease Maulé took possession in the spring of 1845. He continued in possession for about ten months, and then transferred his lease to Felton Bartle, for $313, including the stock then on hand. Bartle took possession and continued therein for about three years. It was alleged that he was a good farmer, kept stock, and put on the land a good deal of manure; and thus considerably increased the value of the land.</p> <p>The land had belonged to Gceorge Peiffer, who, in 1834, died intestate. Whether he left children did not appear. In July 1847, the petition of Rebecca Peiffer, as administratrix, was presented to the Orphans’ Court, stating that George Peiffer died indebted, and did not leave personal estate to pay his debts, and praying for an order of sale of the land above referred to. An order of sale was granted, and on the 8th September, 1847, the land was sold, and the sale was confirmed on 14th September, 1847. A deed was executed by her to Bunting, the purchaser, dated 9th October, 1847, which did not contain any reservation in favor of Maulé. Bunting conveyed to Steinmetz, and a notice by him, dated 18th December, 1847, was served on Bartle to quit the premises on or before the 1st April following, or pay at the rate of $300 per year, &e. Possession of the land was got by Steinmetz on the 1st April, 1845.</p> <p>After this evidence was .given, Stroud, J., directed a nonsuit, which the Court, in banc, refused to take off.</p> <p>The entry of the nonsuit and refusal to take it off, was the subject of the assignment of error.</p>

This was an issue directed between the Commonwealth of Pennsylvania, ex relatione John G. Fisher and others, as plaintiffs, and Francis Juker and others, as defendants, in the matter of a quo… Held: between the hours of one and three in the afternoon, for the election of trustees.

Error, to the District Court, Philadelphia. This was an action on the case 'in name^of Susan Hylands^ a minor, by her next friend Thomas Hylands, v. Jacob Peters and others. The action was brought to recover damages for an injury sustained by Susan Hylands, on the 23d August, 1851, while travel-ling on the state railroad from. Downington to Philadelphia, in a railroad passenger car belonging to the defendants.

The case of Kline v. Kline was the case of a writ of foreign attachment in debt, issued by Peter Kline v. Michael Kline, on 8th March, 1847. The sheriff returned attached, &c. The plaintiff declared on a bond for $266, dated November 30, 1818, payable on 30th November, 1819. The plea was, payment with leave, &c. It was stated on the paper-book that there was a receipt endorsed' 7th April, 1821, for 43 .cents paid.

■ This case came up from the Nisi Prius, Philadelphia. It was an amicable action, in which Peter Dickes was plaintiff, and Thomas Yaughan was defendant. The action was entered into in order to determine what title existed in Peter Dickes the plaintiff, to certain real estate which had been devised to him in the will of his father, Peter Dickes, Senior, and which the plaintiff had agreed to sell to Thomas Yaughan, the defendant in the issue.

Appeal by Edward W. Pennell et al., from the decree of the Orphans’ Court of Philadelphia county, in the matter of the account of David Hartley, guardian of Henry Carlton Hartley, a minor, deceased. Henry Carlton Hartley was an only child. His mother, before her marriage with his father (the accountant) had inherited from her grandfather certain real estate in Philadelphia.

This was a writ of quo warranto, on the ground that the railroad company had forfeited its charter by a failure to lay a double track, within the time thereby required. The same application had previously been made in the Court of Common Pleas, and the opinion of the Court thereon, will be found reported in the Legal Intelligencer of December 24th, 1852.

This was a scire facias in favor of David Armstrong and Joseph Paxon, v. Isaac C. Ware and Others, Trustees, &c., owners or reputed owners, and Theodore A. Foster, contractor. It was on a mechanic’s lien. The building against which the lien was filed was a brick church, first built in 1816, one story high, being one room, standing about 25 feet back from the street.