Volume 22 — Pennsylvania State Reports

James Gray, for a lot of ground in Bayardstown, Allegheny county; extending from Penn street to the Allegheny river, adjoining M’Kelvy and others, containing about two acres. The plaintiffs claimed as heirs of John McGregory. It appeared that John McGregory, at one time, had an equitable title to the premises, he having entered into an article of agreement with George Wallace, the former owner, for the purchase of the property.

This was an appeal by J. W. Thompson and others, from the decree of the Court, affirming the distribution made by an auditor on the account of John Scott, assignee under a voluntary assignment by R. A. Cunningham. Cunningham, the assignor, took out letters testamentary on the day of , A. D. 185 , on the estate of Seth Matthews, deceased, and converted the assets of said estate into cash, and used them in his business.

This was a writ of habeas corpus issued out of the Supreme Court at the instance of Philip Schwamble, and directed to the sheriff and jailer of Allegheny county, William Magill.

<p>Error to the District Court of Allegheny county.</p> <p>This was a suit by. F. & W. M. Faber, partners, v. J. Bell, Geo. S. King, and Peter Shoenberger, as late partners, trading under the firm of J. Bell & Co. The process was not served on J. Bell. The declaration contained three counts, the first and second were on a note ; the third was in indebitatus assumpsit. The note was as follows:</p> <p>$57134/100 Pittsburgh, January 31, 1850.</p> <p>On the first day of August next, we promise to pay to order of F. k W. M. Eaber, five hundred and seventy-one dollars and thirty-four cents, payable in good foundry pig metal, at the rate of Pittsburgh six months market price, without defalcation, for value received. Signed J. Bell & Co.</p> <p>On the part of King & Shoenberger it was plead that they did not make the note. On 5th January, 1858, verdict for plaintiffs for $601.68,</p> <p>It appeared that there were three several firms in existence, which were composed as follows:</p> <p>The firm of J. Bell & Co., composed of J. Bell, Geo. S. King, and Peter Shoenberger. Geo. S. King was the acting manager of this firm. They owned Mill Creek Furnace, and were engaged in the manufacture of pig metal. Their furnace was propelled by water-power.</p> <p>Another firm, Geo. S. King Co., was composed of Geo. S. King and Peter Shoenberger. Geo. S. King was the acting manager of this firm. They were also owners of a furnace.</p> <p>A third firm, J. & J. Bell, were owners of Washington Furnace, and were engaged in the manufacture of pig metal.</p> <p>A. J. Wigton, one of the firm of Wigton k Moore, purchased for that firm from F. & W. M. Faber, the plaintiffs, a steam-engine for which they were to pay $1100. The engine was to be ready for delivery on the 8th December, and the terms of payment were to be an order on J. & G. H. Shoenberger for rolled iron. Pig iron was afterwards agreed on, and interest on the two payments of $550 each was agreed on; the interest on the one payment amounting to $10.44; on the other to $21.34—in all $1131.68. After the contract was agreed on, Wigton had a conversation with King, of the firm of King & Co., and King gave him a letter to the Messrs. Faber, dated December 4, 1849.</p> <p>Wigton testified in the case, that he wanted to make a payment on account of the engine through King & Co. and J. Bell & Co., as both of those firms were indebted to him. Against King & Co. he had a note for $600; and against John Bell & Co. he had one for $300. These notes were offered to the plaintiffs, who refused them on account of the manner in which they were drawn. He had also two other notes drawn by J. & J. Bell, the firm thirdly named, in favor of Conrad & McCoy.</p> <p>Wigton gave up to John Bell the note for $600 on King & Co., for which Bell gave a note signed J. Bell & Co. for $560.34, payable to the Fabers, on 1st May, 1850. Bell also gave up to Wig-ton another note signed J. Bell & Co. for $571.34, payable to F. & W. M. Faber, viz. the note in suit. The latter note was to be in part payment of a note for $1000 against J. & J. Bell, which Wigton held. For this $1000, Shoenberger & King were not liable. The $1000 note had been given by J. & J. Bell to Condren & Co. for some mules, sold by them to J. & J. Bell. Shoenberger & King had no interest in the transaction. There was no other consideration for the note in suit than the credit given on the note of J. & J. Bell for $1000; and it did not appear that Shoenberger gave any authority for giving the note in suit.</p> <p>On the 1st February, 1850, a settlement was made between John Bell and Wigton, the account on the one side being:</p> <p>The note of Condren & Co. for $500; interest $17.50: note of King & Co. for $600, and credit on John Bell & Co.’s note in favor of L. L. Moore, $14.18; in all $1131.68, with the statement that- the above was to pay for the steam-engine bought of Messrs. F. & W. M. Faber,—for which J. ft J. Bell gave their note for $571.34, and John Bell & Co.’s note to Messrs. Faber for $560.34; in all $1131.68. This settlement was signed by John Bell and A. J. Wigton.</p> <p>Wigton further testified that at the time the said settlement was signed, he supposed that John Bell had given to him notes as stated in that paper, viz. the note of J. & J. Bell for $571.34, and the note of J. Bell & Co. for $560.34. That the previous agreement between Bell and him was that the settlement was to he made as was stated in that paper.</p> <p>The first note to the plaintiff was paid in pig metal. King was present at the time of the delivery of the metal. Bell was then considered to be in good circumstances as the partner of King and Shoenberger. Bell afterwards failed.</p> <p>It was testified that John Bell transacted no business for J. Bell & Co., at Mill Creek Furnace, without consulting the other partners ; and that Gr. S. King was the acting manager and partner of the two furnaces of J. Bell & Co. and Gr. S. King & Co.</p> <p>There was given in evidence, on part of the plaintiffs, a letter dated December 4th, 1849, from Greo. S. King, signed Greo. S. King & Co,; in which it was stated that he considered Wigton, Moore & Co. good for the amount of the engine. It was added, “ They wish to make their payment through us. We, perhaps, can make it suit to take part metal instead of iron. We will see you on our next visit to Pittsburgh.” Signed Gr. S. King & Co..</p> <p>In answer to a point presented on the part of the defendants, the Court instructed the jury that one partner could not bind his copartners by giving a note in the partnership name for his own private debt, without their assent. One of the points, the seventh, was as follows:</p> <p>To enable the plaintiffs to recover in this case, it must be proven that both defendants, George S. King and Peter Shoenberger, gave such assent as is described in the foregoing points; and that, unless it has been proven to the jury that both King and Shoenberger gave such assent,, the plaintiffs cannot recover, in this case, a verdict against both or either of them.</p> <p>Answer.—“ If you believe that Geo. S. King was the acting and managing-partner in both the firms of Geo. S. King & Co. and John Bell & Co., and that he gave, his assent to the giving of the note by John Bell, in the name of J. Bell & Co. to the Eabers, such assent on the part of King will be sufficient to render both King and Shoenberger liable in this action, under all the circumstances, if established to your satisfaction.” To which answer the counsel for the defendants excepted.</p> <p>The answer to this point was assigned for error.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a case stated entered to April Term, 1852, in which A. Wilkins was plaintiff, and Philip Bircleback was defendant.</p> <p>The parties in this case agreed upon the following facts, to bo considered in the nature of a special verdict.</p> <p>Henry Hannen & Co., being indebted to Philip Bircleback, gave him their note as follows:</p> <p>$113.02. Pittsburgh, Sept. 21, 1850.</p> <p>Four months after date, we promise to pay to Philip Bircleback, one hundred and thirteen dollars and two cents, without defalcation, for value received.</p> <p>(Signed,) Henry Hannen & Co.</p> <p>On the 9th day of October, 1850, Philip Bircleback transferred the above-mentioned note to John Brown, by endorsement in blank, in part payment of the price of a lot of ground, purchased that day from said Brown. At the time of the transfer of the note to Brown, it was expressly agreed in the presence of witnesses, that Brown should look to Hannen & Co. for payment, and that Bircleback should not be liable on the note. The object of the endorsement was merely to transfer the interest of Bircleback to Brown. Afterwards, and before the maturity of said note, it passed from Brown into the possession of Joseph Bingham, who liad notice that Bircleback was not to be considered liable on the note. Bingham got the note from Brown under the pretence that he could settle the note with Hannen & Co., he having an account with that firm. Bingham, instead of settling the note with Hannen & Co., transferred it to A. Wilkins, the plaintiff in this case. It is admitted that the firm of Hannen & Co. is insolvent, and was so at the time of the maturity of the note. The note was duly protested for non-pa.yment, and notice of protest was serve'd on Philip Bircleback, as the endorser. Date of protest, January 24th, 1851, and notice to Bircleback same date. The omission of words of negotiability in the note is admitted not to have been accidental, but designed to prevent its negotiation. If, upon these facts, the plaintiff be, in the opinion of the court, entitled to recover, then judgment to he entered for the plaintiff for the amount of his claim, with costs, &c.; otherwise, judgment for the defendant with costs. The right to a writ of error reserved to each party.</p> <p>Signed by counsel, and filed Oct. 20, 1852.</p> <p>November 16, 1852. Judgment for plaintiff on the case stated, for one hundred and thirteen dollars and 2 cents (113.02), with interest from the 24th day of January, 1851.</p> <p>It was assigned for error that the court erred in entering judgment for the plaintiff, on tfie case stated.</p>

This ease was tried in the Common Pleas on an appeal from the judgment of a justice of the peace, in a proceeding by Jacob Brosi v. the President and Managers of the Allegheny and Perrysville Turnpike Road Company. It was a proceeding had under the general Act of 26th of January, 1849, “ regulating turnpike and plank road companies,” (Acts page 10, &c.,) and of the supplement thereto passed on 7th April, 1849.

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of debt by Spencer Watts v. Aaron A. Hardy, on a recognisance entered into by the defendant before an aider-man, where an appeal was taken by Sarah Jourdon, in a proceeding against her as tenant, for failing to pay rent.</p> <p>In the narr. it was alleged that Watts, having leased a certain house, &c., to Sarah Jourdon, the rent of which she neglected and refused to pay, on the 23d November, 1850, brought “ his suit or action at law to recover the possession of the said demised premises, ‘ according to the Act of Assembly,’ and that there was rent in arrear, and unpaid, &c.; that on complaint to an aider-man he entered judgment against her; and that she delivered up possession, &e. It was averred that the defendant became liable, according to the form and effect of his said recognisance of bail,” &c.</p> <p>The plea was, that the defendant was not indebted in manner and form as in the declaration alleged ; and payment with leave, &c.</p> <p>In the Act of 3d April, 1830, relative to landlord and tenant, it is provided, in the ease of a proceeding against a tenant in case of non-payment of rent, “ That no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgmentand if within the said five days the tenant shall give good, sufficient, and absolute security by recognisance for all costs that may have and may accrue, in case the judgment shall be affirmed, and also for all rent that has accrued or may accrue up to the time of final judgment, then the tenant shall be entitled to an appeal to the next Court of Common Pleas,” &c.</p> <p>A ease was stated as follows:</p> <p>The following are the facts agreed upon by the parties in this case; and upon which, if the court is of opinion the plaintiff can recover, judgment is to be entered in his favor for $292.13, with costs ; but if not, then judgment for defendant for costs.</p> <p>An action was brought by Spencer Watts, the plaintiff here, against a certain Sarah Jourdon, his tenant, to recover possession of the premises leased to her by said Watts, under the Act of 3d April, A. D. 1830, relative to landlord and tenant, before two aldermen, in which proceeding the said Watts obtained judgment “ that he have possession.”</p> <p>Whereupon the said Jourdon appealed to the Court of Common Pleas of Allegheny county, and the following recognisance of bail was taken by the alderman for said appeal:</p> <p>“ I become bail absolute in this case, conditioned for the payment of all costs that has accrued, and all the costs that may accrue, in case that the said judgment be affirmed ; and also for all rent that has accrued, and may accrue up to the time of final judgment.” Signed, “ A. A. Hardy.”</p> <p>Whereupon the proceedings were removed to the Court of Common Pleas. The ease was tried upon the appeal in said Court, in No. 220, December Term, 1850, and the judgment of the aldermen affirmed. Prout record. And now this suit is brought upon the said obligation, to recover $292.13, the rent and costs as aforesaid.</p> <p>The only question raised here, is whether the recognisance or obligation above stated, is sufficient to hold the defendant liable.</p> <p>The Court to enter judgment in favor of the party entitled thereto, upon the facts hereinbefore stated, with leave to either party to take out a writ of error.</p> <p>On the 2d day of July, 1853, the Court ordered judgment to be entered in favor of the plaintiff below, on the case stated, for $292.13, with costs of suit.</p> <p>Such judgment was assigned for error.</p>

There were two actions on the case, one to January Term, 1852, No. 129; the other to April Term, 1852, No. 575, by James R. Smith & Co., for the use of Lewis Cooper, v. Myler & Aber.

William Larimer, junior, by deed dated April 1, 1848, conveyed certain real estate to M. & J. Breidenthal, and took their promissory notes for the purchase-money, secured by mortgage of the premises sold. “The mortgage was duly recorded. On 11th June, 1851, Haigh, Hartupee & Co. obtained a judgment against M. & J. Breidenthal for §1776.97.

This was an appeal by Mary Perry from a decree of distribution of certain proceeds of sale of real estate, sold on vend. exp. to April Term, 1853, in name of James Carnahan for use of William Dilworth v. Emanuel Dyer: issued on a judgment obtained on a mortgage bond. On 24th June, 1853, the sheriff paid into Court $337, stated to be the proceeds of sale.

<p>Error to the Common Pleas of Allegheny county.</p> <p>James Logan obtained judgment before an alderman against John McDowell, on 10th June, 1851, for $15 ; and on same day, John Calhoun became bail by recognisance for stay of execution.</p> <p>An amicable action was entered into before another alderman, in a suit entitled N. B. Craig & Son v. James Logan and John Calhoun. It was stated on the docket that on June 7, 1851, parties appear and defendant, J. Calhoun, for himself and James Logan, voluntarily confesses judgment to plaintiffs for $12 and costs of suit, &c.</p> <p>On Oct. 27, 1851, an attachment execution issued against John McDowell, as garnishee of James Logan and John Calhoun. Nov. 3, 1851, John McDowell appeared and testified that at the time of the service of-the attachment he was indebted to Logan and Calhoun the sum of $15, and the alderman entered judgment against him for $15.' On February 5, 1852, execution issued, and on February 17,1852, McDowell paid the debt, interest, and costs.</p> <p>It did not appear that Logan appeared in person to the suit of Craig k Son, nor was any authority in Calhoun, to appear for him and confess judgment, set forth.</p> <p>A scire facias on the recognisance of Calhoun as bail of McDowell, was issued in favor of Logan, on 30th January, 1852. On 5th February, 1852, the parties appeared, and Calhoun the defendant plead that an attachment for $15 had been served on McDowell, on a judgment against Logan and Calhoun (meaning the judgment in favor of Craig & Son), and that a judgment for that amount had been entered against him (Calhoun) by the alderman. Notwithstanding the plea, judgment was rendered for plaintiff for $16.55, and costs. On 16th February, 1852, this judgment was assigned by Logan to William Shields. Calhoun, the defendant, took an appeal, but it was not afterwards entered in the Common Pleas.</p> <p>Shields, the assignee, took a transcript of the judgment against Calhoun, and had it filed in the Common Pleas, and a fi. fa. was issued.' Calhoun then had a copy of the record of the attachment in favor of Craig & Son filed in Court, and obtained a rule to show cause why the judgment against him in favor of Logan should not be marked satisfied. January 31, 1853, the rule was discharged; and afterwards .this writ of error was taken.</p> <p>It was, inter alia, assigned for error, that the Court erred, in discharging the rule to show cause.</p>

This was an appeal by Cormack Logue, from the decree of the District Court of Allegheny county, directing distribution of proceeds of sheriff’s sale of real estate of John Gall. The sum of $781.97 was paid into Court for distribution. An auditor was appointed. Clarence Shaler was the purchaser of the property. The money was claimed by Clarence Shaler, as the assignee of a judgment in favor of George Ledlie, which was the first lien on the premises.

This was an action of debt to January Term, 1853, by Robert M. Reed and Thomas McCombs against Elisha Bloomer, on a bond. A declaration was filed, and an affidavit of plaintiff’s attorney, as to the amount due, was filed at the time of the issuing of the writ. On 6th January, 1853, an affidavit of defence was filed. On 8th January, on part of the plaintiffs a rule was obtained to show cause why judgment should not be entered for want of a sufficient affidavit of defence.

<p>1. A city being in possession of a public wharf, within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition for use.</p> <p>2. The corporation is liable for special injury maintained by an individual in consequence of its neglect to keep the wharf in order, and case may be sustained therefor.</p> <p>3. It was not material whether the city had adopted ordinances for the regulation of the wharf, or having such, neglected to enforce them. The responsibility is the same in either event.</p> <p>4. When the plaintiff has sustained injury from the neglect of a public, duty which the defendant has impliedly promised to perform, either ease or assumpsit may be maintained.</p> <p>5. Where the injury was the immediate consequence of a peril to which the suffering party was obliged to expose himself in order to avoid the one arising from the negligence of the city authorities, it was sufficiently proximate to sustain the action.</p> <p>6. A steamboat was landed,, at a moderate stage of water, at a proper place at the Monongahela wharf at Pittsburgh, on which piles of iron metal had been lying for a longer time and nearer to the water’s edge than was allowed by the ordinances of the city. The river afterwards rose and the boat struck on the iron, and to avoid such danger was backed into the stream, where it was struck by a floating body, and further injured and sunk: Held, that the wharf being under the exclusive control and regulation of the city authorities (whether rightfully or not, held not to be material), who derived a revenue from its use, the wharfage of the boat having been paid, the city authorities having been guilty of negligence in not having the iron removed, the corporation was liable in an action on the case to the owners of the boat for the injury sustained.</p> <p>7. Though some other place on the wharf might have been more secure, the captain of the boat had a right to select the one in question which was at the time safe, the faith of the city being pledged to render it secure.</p> <p>8. It was not material that the city authorities did not foresee the danger as likely to occur.</p> <p>9. The parties in this case were not in the position of persons equally in fault. Though both parties had an equal opportunity of seeing the danger, they were not bound to equal degrees of vigilance. The city was responsible for extreme care of the wharf; the owners of the boat only to that common prudence which would keep it clear of a manifest peril.</p>

<p>1. On a partner has an implied authority to hind the firm by contracts relating to the partnership business, whether such contracts ho evidenced by bare agreements, oral or written, or by negotiable instruments; and this rule is; applicable to dormant as well as known partners.</p> <p>2. A dormant partner is liable for the contracts of the firm during the time he is actually a partner.</p> <p>3. The acceptance of a promissory note from the ostensible partners by one unacquainted with the existence of a dormant partner, will not preclude the creditor from an action against all who participated in the profits of the partnership.</p> <p>4. A suit on such an instrument may he brought against all the parties.</p> <p>5. The surety in the note who paid the money was entitled to be subrogated to the remedy on the contract; or was entitled to sue for money paid for the use of the partnership, and the promissory note signed by the ostensible partners and the surety was competent evidence.</p> <p>6. In a suit against a dormant partner, involving the question of the existence of a partnership in a steamboat and the time of its commencement, it was Sold, that admissions of the defendant that he was a partner, made after the liability from an injury to goods on hoard of it arose, without stating when the partnership commenced, were evidence of the previous existence of the partnership, taken in connection with evidence of advancements made by the defendant for the construction of the boat, and with evidence of an arrangement, made previous to the liability referred to, by the defendant with the then owners of the boat, or one of them, for the purchase of an interest in it—no evidence having been given by the defendant that his interest was acquired subsequent to the time when the liability arose.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of ejectment brought by John Nichols against Joseph Edmonson and others, to January Term, 1852, No. 121. Joseph Edmonson claimed to be the owner of the land, and the others were tenants. The defendants pleaded not guilty, and on the trial of the cause, a verdict was rendered for the plaintiff, Nichols, subject to the opinion of the Court on reserved questions, which were afterwards decided by Williams, J., in favor of the plaintiff, and judgment entered.</p> <p>Both parties claimed under the will of James McMeeken, bearing date April 27th, 1831, and admitted to probate in Allegheny county, on August 26, 1840. His widow, Mary McMeeken, survived him and lived till 16th June, 1851.</p> <p>The testator died seised of a small piece of land containing about eighteen acres, with two old log cabins in bad repair upon it, for which this ejectment was brought. It was admitted for the purpose of this trial, that the rents, issues, and profits of this land, were insufficient to support the widow.</p> <p>About two or three years after her husband’s death, the widow was taken to reside with her son-in-law, Jacob McMeeken, in the state of Ohio, where she continued to reside until her death; during a period of about eight years.</p> <p>On the 6th of February, 1845, she executed and delivered to Jacob McMeeken a mortgage of the premises, for $150, for her support, which was acknowledged before a justice of the peace in Ohio, and a certificate of the clerk of the Court of Common Pleas of the county where the magistrate resided, with the seal of the Court in due form attached. The mortgage thus acknowledged was recorded in Allegheny county, on the 4th day of June, 1845, and afterwards assigned to Joseph Edmonson, the defendant.</p> <p>On the 10th of Sept., 1845, she executed and acknowledged, in the same way, another mortgage, to secure him for her support, in the sum of $800, which was recorded on the 26th of the same month, in Allegheny county. This mortgage referred to a bond bearing even date, which was also read in evidence, conditioned for the payment of one hundred dollars a year for her support. It. was admitted on the trial that justices of the peace, in the state of Ohio, were at the time of taking the acknowledgments of these mortgages respectively, duly authorized by the law to take the acknowledgments of deeds, mortgages, &c., for land situated in that state.</p> <p>It was proved, by the plaintiff, that the widow and Jacob Mc-Meeken both desired this property to be put to sale under these mortgages. A scire facias was issued on each of the mortgages to April Term, 1850, in the District Court of Allegheny county, returned Nihil. Al. sci. fa. also returned Nihil; and judgment in each case on the 6th April, 1850.</p> <p>Lev. fa.’s were issued, Nos. 853, 354 of April Term, 1850. The property in dispute was sold by the sheriff on both writs, and purchased by Edmonson, the defendant, for $200. Sheriff’s deed duly acknowledged and registered, acknowledged the 4th May, 1850, and delivered. The defendant, Edmonson, has had possession since. It was alleged, in the counter-statement, that neither William McMeeken or Edmonson were parties to the proceedings on the mortgages.</p> <p>The plaintiff claimed title under William McMeeken, son of James McMeeken, the testator, by deed dated 21st July, 1851, above a month after the death of the widow.</p> <p>Three questions arose, and were reserved by the Court, viz.:</p> <p>1. Had the widow power, under the will of her husband, to mortgage the premises in fee ?</p> <p>2. If she had, were these mortgages properly acknowledged ?</p> <p>3. If not, can advantage be taken of that defect by the plaintiff here, after the legal proceedings had thereon, and possession by defendant from the date of his deed up to the bringing of this suit?</p> <p>The will of James McMeeken was as follows:</p> <p>“As to such worldly estate wherewith it has pleased Grod to bless me, I give and dispose thereof as follows: Item, it is my will and I direct and order that all my estate real and personal and everything that belongs to me shall be given into the hands o'f my wife for her use and maintenance as long as she lives, she must not give or sell anything only what is for her own good and support, or for the good of the place, or mortgage if she needs.</p> <p>“ It is further my will and I do order that my son William, directly at his mother’s death, shall have all my land and houses.</p> <p>“ It is further my will and I do order that my daughter Mary is to get, at her mother’s death, my bureau and part of my books.</p> <p>“It is further my will and I do order my son William to give Jacob McMeeken a free deed of that lot his house is on.</p> <p>“ Further it is my will that my son William shall have all the proceeds out and in of my property that now belongs to me.”</p> <p>The second bond and mortgage were printed on the paper-book. In the bond it was stated that thé widow had agreed with Jacob Mc-Meeken for her support at $100 per year, and she mortgaged to him the “ eighteen acres of land,” to have and to hold to him, “ his heirs and assigns for ever,” conditioned on her payment of the money referred to.</p> <p>This mortgage was executed in the presence of two witnesses—one of whom was Wm. McMeeken, the son of James McMeeken, the testator.</p> <p>It was assigned for error that the Court erred in entering judgment for the plaintiff upon the points reserved.</p>

<p>A non-resident partner drew a bill of exchange in the name of the firm on himself, falsely dating it at the place of business of the firm, making it payable to the order of the firm, and accepted it in his own name, endorsed it with the name of the firm, placed it in the hands of a bill-broker, who negotiated it to the holder, and paid to the non-resident partner the net proceeds:</p> <p>It was Held, that the other partner, in a suit against him on the bill by the holder, might defend by showing that it was not a partnership transaction, but that the bill was drawn and negotiated by the other partner for his individual use, and that the holder, who was ignorant of the nature of the transaction, should have inquired into it.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action in assumpsit to November T. 1851, by John A. Weeks v. Alexander Miller, on a promissory note dated 26th May, 1851, signed by Alexander Miller, the defendant, for $5624.75, payable to his own order. It was endorsed, Alexander Miller; Winslow, Lanier & Co.; and in the'latter endorsement it was made payable to the order of John A. Weeks, the plaintiff.</p> <p>In the declaration, it was alleged that the defendant, on the 26th May, 1851, made his promissory note, and delivered it to Winslow, Lanier & Co., and thereby promised to pay to the order of said Alexander Miller $5624.75, in four months, &c., and that the said Alexander Miller endorsed and delivered the same to Winslow, Lanier & Co., and that they endorsed and delivered it to the plaintiff. It concluded to the damage of the plaintiff $6000.</p> <p>The writ was returnable on the 6th October, 1851; and on the 13th October, 1851, a copy of the note was endorsed on, and filed with the declaration. It was as follows:</p> <p>“ $5624.75. Pittsburgh, May 26, 1851.</p> <p>“Four months after date, I promise to pay to my own order, $5624.75, without defalcation, value received.</p> <p>Alexander Miller.”</p> <p>“Endorsed—Alex. Miller, pay to the order of John A. Weeks.</p> <p>Winslow, Lanier & Co.”</p> <p>In a.n affidavit filed at the institution of the suit, was claimed 15624.75, the amount of the note and interest from the 29th of September, 1851.</p> <p>The copy of the note was filed under the 1st rule of the District Court of Allegheny county, viz.: “ In all actions brought in this Court, upon any deed, bond, bill, note, or other instrument of writing, a copy of which shall have been filed within two weeks from the return day, to which the action is brought, it shall not be necessary for the plaintiff, on the trial, to prove the execution thereof; but the same shall be taken to be admitted, unless the defendant, by affidavit filed at or before the time of filing his plea, shall have denied that said deed, bond, bill, note, or other instrument of writing, was executed by him.”</p> <p>The pleas were non assumpsit want of consideration, payment with leave, &c., and set-off. .</p> <p>On the trial M. Holmes testified that he had seen Alexander Miller write, and that he believed the signature to the note to be his. M. O. Kurtz testified that he was clerk in the house of Kramer & Rahm, and that they received letters from the firm of Winslow, Lanier & Co., almost every day. They reside in New York, and the firm of Kramer & Rahm have money dealings with them—that they were their correspondents in New York. He said he believed this to be the signature of one of the partners. The reading of the note in evidence was objected to on the ground, 1. That the allegata and probata did not agree. 2. That there was not sufficient proof of the endorsement of Winslow, Lanier & Co. 3. That the note in suit was not such a negotiable instrument upon -which the plaintiff can sustain a suit in his own name, as it is drawn by the maker payable to his own order.</p> <p>The objections were overruled, and exception taken. The note was read.</p> <p>On part of defendant, Mr. Knox,'the plaintiffs’ attorney, was called, ánd it was offered to prove by him: 1st. That the note was transmitted to him by Winslow, Lanier & Co., for collection: 2d. That this suit was brought by him as their attorney, and at their instance: 3d. That the plaintiff is a mere trustee, and permits this suit to be brought for the benefit of Winslow, Lanier & Co. Further that there was no consideration for the note.</p> <p>Mr. Knox declined to state any information or communications made to him by his client, as having been made to him confidentially as his attorney.</p> <p>The objection of Mr. Knox was sustained, and defendants’ counsel excepted.</p> <p>The defendants’ counsel requested the Court to charge: 1. That the plaintiff could not recover under the declaration and the evidence in the case.' 2. That the note was not such a negotiable instrument as would entitle the plaintiff to recover in his own name. 3. That the declaration was neither certain nor definite, as whether the defendant was sued as drawer or endorser was uncertain. 4. That the plaintiff had failed to trace the title by proving the endorsements of the respective endorsers, and has proved no consideration paid or given by himself.</p> <p>These several propositions were negatived; verdict was rendered for plaintiff for $6078.91½, which appears to have been for the amount of the note and interest on it, from the 29th September, 1851.</p> <p>It was assigned for error; first, That the Court erred in permitting the note to be read—first, because the allegata and probata did not agree: second, Because there was no sufficient proof of the endorsement of Winslow, Lanier & Co. to the plaintiff : third, That this is not such a negotiable instrument, upon which the plaintiff can sustain suit in his own name, as it is drawn by the maker payable to his own order.</p> <p>2d. The Court erred in sustaining the objection of Mr. Knox to testify.</p> <p>The 3d, 4th, 5th, 6th, and 7th assignments were to the answers to the points; and the 8th was to the amount of the judgment, the plaintiff having claimed in his declaration $6000, and the verdict being for $6078.91½, and judgment having been entered on it.</p>

At October Term, 1852, of the Court of Oyer and Terminer for the county of Allegheny, David Jewell was indicted and convicted of murder in the first degree, the verdict being rendered on 8th December. The record showed that the prisoner was then present in Court. The docket entries showed to the following effect: On the 11th December a motion for a new trial was entered, and the Court ordered that the time for filing the reasons be enlarged until the 16th instant.

<p>This was a certiorari issued from the Supreme Court to A. McMaster, an alderman of the city of Pittsburgh, in the matter of a proceeding before him in the name of the Commonwealth of Pennsylvania v. William Johnston.</p> <p>It appeared from the proceedings, that on the 5th September, 1853, the said William Johnston was charged with having, on the 4th September, 1853, performed certain worldly employment on the Lord’s-day, commonly called Sunday. A summons issued on the 6th day of September, and after service of it, the case was continued. On 22d September, counsel on the part of the Commonwealth and on part of the defendant appeared. Several pleas were filed, and witnesses were examined. The record of the aider-man concluded as follows:.</p> <p>“ Be it remembered that on the 26th day of September, a. d. 1853, William Johnston, omnibus driver, is convicted before me, one of the aldermen in and for the city of Pittsburgh, of having done and performed worldly employment or business, not being a work of necessity or charity, on the Lord’s-day, commonly called Sunday, the 4th day of September, A. D. 1853, in driving certain horses, to which was attached an omnibus, in which certain persons were carried over the streets of the city of Pittsburgh, and from the said city over and along certain roads within the county of Allegheny, contrary to the Act of Assembly in such case made and provided, and I do adjudge him to forfeit for the same, the sum of four dollars, to be distributed as the Act of Assembly directs.</p> <p>“ Given under my hand and seal, the day and year aforesaid.</p> <p>Signed A. McMaster, Alderman.”</p> <p>From the testimony it appeared that the said William Johnston was employed as the driver of an omnibus, which, with others, was known as the Excelsior Line; and that he drove from Pittsburgh to Lawrenceville, a distance of about three miles, and back.</p> <p>In the second plea, it was pleaded that the defendant, in driving the horses attached to the omnibus, was doing a work of necessity in this : That the said omnibus was accustomed to run at regular and stated times on Súnday, to and from regular, fixed, and known stations, from Lawrenceville to Fifth street in Pittsburgh, a distance of three miles, for the public conveyance of passengers and persons travelling to and from sundry churches, meeting-houses, and places of divine worship, which they are accustomed to attend on the Lord’s-day, &c.; and to and from their houses and other places at and between said stations, to which said passengers are travelling upon their necessary business, and for the performance of their religious and charitable duties, and for health and recreation, on Sunday.</p> <p>In the third, it was alleged that the defendant was doing a work of necessity in this: That the omnibus was a vehicle for the public conveyance of persons travelling to and from the city of Pittsburgh—running from certain fixed stations, at fixed and regular periods, and for a cheap fare, “ there being no other mode of conveyance for persons between said places;” and that the defendant was driving the horses “ for the public conveyance of persons travelling on said roads, to and from their accustomed places of religious worship, on Sunday; and to and from their houses and other places to which persons were travelling on Sunday, as he lawfully might do.”</p> <p>In the fourth plea, it was alleged that the defendant, in driving the horses, was doing a work of necessity in this: That the said omnibus was a vehicle for the public conveyance of persons travel-ling over and upon said streets and roads in the information mentioned, daily, each and every day of the week, including Sunday, and that he was hired and employed by the proprietors of said horses and omnibus to drive the horses, &c., at and for a certain price per month; and at the time mentioned in the information, he was engaged in fulfilling the contract on his part, “ the public conveyance of persons travelling over and upon said roads and streets by driving horses attached to said omnibus, on Sunday, being a work of necessity and lawful on that day for the purpose aforesaid.”</p> <p>To the second plea, it was replied, that there was no necessity for .the driving of the horses, &c., on the Lord’s-day; and that the said omnibus was not driven for the accommodation of any particular class of persons, but in the same manner, for the same purposes, as on other days of the week; and that it was run for the purpose of carrying passengers to taverns, drinking-houses, and other places of resort; and was driven without reference to the hours of going to church or the accommodation of those persons who were accustomed to attend churches, &c.</p> <p>To the third plea it was replied, that the defendant was driving the horses, &c., “ in the course and exercise of his worldly employment or business, on the Lord’s-day,” &c.</p> <p>The fourth plea was demurred to.</p> <p>By the second section of the Act of 25th September, 1786, for the prevention of vice and immorality (2d Vol. of Dallas’ Edition of the Laws, p. 475), it was enacted, “ That from and after the first day of August next, if any person shall do or perform any worldly employment or business whatsoever on the Lord’s-day, commonly called Sunday (works of necessity and charity only excepted),or shall use or practice any unlawful game, hunting, shooting, sport, or diversion whatsoever, on the same day, and be convicted thereof, every such-person so offending shall, for every such offence, forfeit and pay the sum of thirty shillings, to be levied by distress, or in case he or she refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county.”</p> <p>Sec. 3. “ Provided, always, That nothing in this Act contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, or in lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or stagecoaches or stage wagons from carrying travellers (having the consent of a justice of the peace upon extraordinary occasions), on the Lord’s Day, commonly called Sunday, nor to the delivery of milk or other necessaries of life before nine of the, clock in the forenoon, nor after five of the clock in the afternoon of the same day.”</p> <p>By the first section of the Act of 22d April, 1794, it is provided : “If any person shall do or perform any worldly employment or business whatsoever, on the Lord’s Day, commonly called Sunday, works of necessity and charity only excepted, or shall use or practise any unlawful game, hunting, shooting, sport,,or diversion whatsoever, on the same day, and be convicted thereof, every such,person so offending shall, for every such offence, forfeit and pay four dollars, to be levied by distress; or in case he or she shall refuse or neglect to pay the said sum, or goods and chattels cannot be found whereof to levy the -same by distress, he or she shall suffer six days’ imprisonment in the house of correction of the proper county: Provided always, That nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns, and other houses of entertainment, for the use of sojourners, travellers, or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers or persons removing with their families, on the Lord’s Day, commonly called Sunday, nor to the delivery of milk or the necessaries of life before nine of the clock in the forenoon, nor after five of the clock in the afternoon of the same day.”</p> <p>October 27, 1853. Stokes, with whom was Shaler, for the plaintiff in error.—It was said that the record raised the question whether it was unlawful to travel on Sunday; for if travelling be lawful, the necessary means of doing so are lawful. It was said that travelling does not in a legal sense fall within the description of worldly employment or business: 5 W. & Ser. 302, Jones v. Hughes; 6 Barr 417, Logan v. Mathews. The traveller being justified, those who aid him in doing so are excusable.</p> <p>The word necessity in the Act of 1794, does not import an absolute physical necessity, but should be construed-as permitting those means that are useful or convenient, if not essential to travellers. It was said that the Act of 1794 legalized travelling, and exempted from its penalties all who were by occupation devoted to the convenience of travellers. It was said that the Act should be construed strictly, as it was in restraint of the natural right of the citizen.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was a suit brought on 25th March, 1852, in the name of James B. Smith & Co., for use of Lewis Cooper, v. John Ewer and Benjamin Peck, as partners. The action was brought to recover the amount of a book account of $982.57, with interest from February 28, 1852. On the trial a sworn copy of the book account, filed with the precipe, was given in evidence.</p> <p>On part of the defendants was then produced, as a set-off, a promissory note of James B. Smith & Co. for $931.01, dated April 14, 1851, at eight months, payable to the order of Stuart & Bro., and by them endorsed.</p> <p>On part of the plaintiff, was then given in evidence the assignment, dated October 29, 1851, of the claim in suit, to Lewii Cooper.</p> <p>Williams, J., charged the jury, that under the evidence in the, case, Cooper, the’ beneficial plaintiff, was bound to show that he was a purchaser for value of the claim in suit, in order to defeat, the defendants’ right to set off the note; that the assignment was not evidence of the fact that Cooper was a purchaser for a valuable consideration as between himself and the defendants; and that having failed to show this he was not, under the evidence, entitled to recover.</p> <p>Verdict for the plaintiffs for $42.99.</p> <p>See another suit for the use of Cooper, antea 36, &c.</p> <p>It was assigned for error, that the Court erred in charging that Cooper, the beneficial plaintiff, was bound to show that he was a purchaser for a valuable consideration, and that the assignment itself, although purporting to be for value received, was not any evidence of the fact.</p>

<p>In an assignment of error to the admission or rejection of evidence, the bill of exceptions should be stated in immediate connection with the specification, or the full substance of the bill be stated.</p>

<p>1. A purchaser of real estate at sheriff’s sale is protected against all unrecorded conveyances from the defendant in the execution of which he had no notice. He is bound to look to the records and to the state of the possession at the time when the sale is made, but not to its state at the date of the sheriff’s deed or of its acknowledgment.</p> <p>2. Where the defendants in the execution, at the time the judgment for a debt unconnected with the premises was obtained against them, held the premises in dispute under articles of agreement, and the purchaser at the sale under such judgment (the defendants in the execution being in possession at the time of such sale) at the time of bringing his ejectment had no knowledge that the defendants or their vendee had acquired a conveyance of the legal title: It was Held, that he was not bound to tender the purchase-money before bringing ejectment against one who claimed under the defendants in the judgment and execution by conveyance prior to the said judgment but unrecorded, and who claimed to retain the premises, not as security for the unpaid purchase-money but as an absolute estate and in bar of the purchaser’s claim. When the owner of the legal title acknowledges the trust he may recover the purchase-money unpaid by the defendants in the execution.</p> <p>3. When a verdict pro forma is directed, the point or points reserved should be stated, or a case should be stated or found by the jury for the judgment of the Court. As to case stated or special verdict, see 8 Harris 104; 9 Id. 413.</p>

<p>Error to the Common Pleas of Greene county.</p> <p>This was an action of ejectment by Abraham Syphers v. Thomas H. Meighen and others, for 144 acres of land. The writ was issued on 20th September, 1849.</p> <p>The plaintiff gave in evidence an application by himself, dated 6th February, 1829, with interest from March, 1807l Warrant dated 16th February, 1829. Survey in pursuance thereof dated 18th April, 1831, for 275 acres and allowance, accepted the 21st of March, 1834. Patent to plaintiff, dated 8th May, 1849, which embraced the lands in suit.</p> <p>The defendants gave proof of an improvement made by Alexis Jaclcson, by virtue of which the defendants claimed the land in dispute. Alexis Jackson, on the 14th of August, 1804, sold the same to William Meighen, who on the 1st August, 1806, sold the same to Robert Whitehill. Application of Robert Whitehill, dated 13th April, 1829. Interest to commence from. the 1st of March, 1794. Warrant dated the 4th April, 1829. Will of Robert Whitehill, dated the 24th August, 1829, and proved the 31st thereof, devising the same to the sons of William Meighen. Survey made for the sons of William Meighen in pursuance of the warrant to Whitehill on the 25th of February, 1834. Patent to Felix and Peter Meighen, dated the 2d of September, 1836, for 400 acres. The interest of those to whom the lands was devised, was, by private and judicial sales, vested in the defendants.</p> <p>Defendants further proved that the patent lines of one of the tracts of Willis and Shoemaker, cut off about 75 acres from the Spragg part of the Jackson improvements. The Willis and Shoemaker patent is dated the 16th of December, 1796.</p> <p>On part of the defendants it was further proved that a certain run, which ran from north to south, and parallel with the western line of defendant’s survey, was spoken of by Stewart, under whom the plaintiff claimed, and by Jackson, under whom the defendants claimed, as the boundary between them; and that there is 100 acres between the line of defendant and the run.</p> <p>On part of plaintiff it was proved that Jackson sold 100 acres off his improvements to Caleb Spragg, by article dated 27th March, 1804, for $ 100, which Spragg paid, and that there was no improvement op, the same when Spragg bought, nor for several years after. Spragg afterwards took out a patent in which he embraced this, with a piece of land bought from another person.</p> <p>On part of defendants was offered the deposition (if Jacob Burley, filed in 1837, in a former suit, which was objected to on the ground that the commission was directed to two commissioners, and was executed by but one.</p> <p>The Court overruled the objection, on the grounds that it was read on a former trial without objection; and that one of the commissioners refused to act for the reason that he was of opinion that he had no i*ight to act in that capacity out of his office. Exception on part of plaintiff.</p> <p>The commission was not set out on the paper-book.</p> <p>In a rule of Court it was provided, viz. “Depositions (other than those taken under commission) shall be filed in a reasonable time; or the party at whose instance they were taken may retain them, provided he gives, within a reasonable time, to the adverse party or his attorney, a true copy of the rule, notice, and depositions ; and no objection shall be allowed at the trial, other than to the competency of the witnesses, or to the relevancy or the competency of the testimony, unless the party malting them shall have given notice in writing to the opposite counsel, of his intention so to do, and his reasons for so doing, within ten days after receiving the copy of notice of filing; or shall have moved the Court on the first opportunity to suppress them."</p> <p>Section 7. “ The prothonotary shall give notice to the respective attorneys, of the return of a commission, and the same provision shall apply to the depositions taken under it, as is prescribed in section 4, above, in regard to other depositions filed."</p> <p>The Court was requested to charge the jury: 1st. That the defendant cannot, by virtue of the improvement made by Alexis Jackson, hold more than four hundred acres and allowance.</p> <p>2d. That the defendant, or those under whom he claims, having sold one hundred acres off his improvement to Caleb Spragg, such one hundred acres are to be considered as part of the four hundred acres which he would be entitled to hold, and if with it he has more than four hundred acres and allowance, he cannot hold the excess beyond that amount; but the plaintiff having shown title to it will be entitled to recover such excess.</p> <p>Gilmore, J., charged the jury, that the settlement of Jackson under whom the defendants claimed, being as early as the 1st of March, 1794, and that of Syphers or those under whom he claims being as late as 1807, and the hundred acres sold to Spragg by Jackson, being a part cut off the Shoemaker patent, dated 16th December, 1796, the said Jackson or Meighen had a right to extend westward, if he designated the run as the western boundary before 1807. No person had a right to gainsay this if he did not thereby include more than 400 acres; and this, notwithstanding, he.was paid by Spragg, to whom he sold the hundred acres. Spragg perfected his title afterwards, but not on the Jackson settlement; but connected it with another settlement right which he had purchased. He might have got the title confirmed on the Jackson settlement, but preferred uniting his two surveys in one, to save the expense of two patents.</p> <p>Jackson, as the earlier settler, might have resisted the appropriation of the Shoemaker warrant, embracing any part of what he claimed; but not having designated his boundaries, he might feel that he had been in default, and preferred yielding. It is true he had sold to Spragg and received one hundred dollars for the land; but this, we apprehend, would not prevent him from going west to make up his 400 acres, exclusive of the 100 acres sold to Spragg when there was no settler to gainsay him. If he designated his western boundary, and this was known to those under whom Syphers claimed and recognised as such,'there could be no objection to Meighen afterwards running off 400 acres and allowance, making his western line east of the run.</p> <p>It was assigned for error, that the Court erred in not charging as requested in the first and second points. 3d. In charging that if Jackson designated his western boundary, and this was known to those under whom Syphers claimed and recognised as such, there could be ho objection to Meighen afterwards running off his 400 acres and allowance, east of the run. 4th. In permitting the deposition of Jacob Burley to be read.</p>

This was an appeal by William H. Harper, administrator, &c., of John McBurney, deceased, from the decree of the Orphans’ Court of Eayette county, decreeing distribution of a portion of the proceeds of real estate, formerly of John Smilie, deceased. John Smilie died in 1812, leaving a will dated the 19th November, 1809. The clause of it which was the subject of consideration in this matter, was to the following eifect.

<p>1. An intruder on a warranted tract of land claiming by possession must show the boundaries of his possession as they existed and were claimed 21 years before the commencement of the ejectment against him, otherwise he will be restricted to the land cultivated or enclosed'for that period óf time. It is not to be presumed, without evidence, that he adopts the boundaries of the plaintiff’s survey as his own.</p> <p>2. Where the plaintiff claims under a warrant and survey for 400 acres, the payment of taxes on 200 acres only by the intruder is not sufficient evidence that he adopts and claims to the extent of the plaintiff’s survey. Where the assessment corresponds neither with the plaintiff’s survey nor with the extent of the defendant’s possession as designated on the ground, it will not entitle the latter to enlarge his possession so as to include the quantity assessed.</p> <p>3. After the plaintiff had shown a legal title from the Commonwealth, the defendant gave evidence of a possession by an intruder and a deed from him in 1801. The plaintiff then read, as rebutting evidence, deeds from several of the heirs of the intruder dated in 1846: Held, that the boundaries set forth in the deeds of the heirs were not evidence, against the plaintiff, of the limits and extent of the defendant’s possession under the prior title derived from the intruder himself.</p> <p>4. After the evidence has been closed and the argument commenced, the introduction of new evidence is within the discretion of the Court below, and is not the subject of review.</p>

The material question involved in this appeal, was the validity of the sale of the real estate of Bradford Marcy, deceased.

This was an action of replevin by Thomas W. Ward against Nancy Reed to replevy certain property which had been levied on by virtue of a warrant of distress executed by her. The defendant made avowry, and claimed $949 for rent in arrear. On the part of the plaintiff it was replied that no part of the same was due for rent, alleging’ that since the making of the lease he had been evicted of two acres of the demised premises.

This was an action of ejectment by Greorge Phillips v. Bradford Shumway, for a piece of land lying north of donation tract No. 1986, and running east and west. Held: claimed the southern line as the line of the tract, the deed to Phillips would pass to him all the rights he had to the strip, if it ever were such a part of the donation tract originally, as against one showing no title.

<p>1. A partial payment on a promissory note, by one of two joint debtors, not partners at the time, will not avoid the bar of the Statute of Limitations as respects the other party. The case of Zent’s Executors v. Heart and Eyster, 8 Barr 337, overruled.</p> <p>2. The surety in a joint note made a payment on account within six years, before suit, which he endorsed upon it. In a joint suit upon the note against the two makers, it was Held, that such partial payment by one party was not such an act as justified an inference of a new promise by the other, so as to avoid the bar of the Statute of Limitations.</p>

This was an action of ejectment by Hugh Maguire v. George Long and William Long, to September Term, 1848. Plea, not guilty.

Sarab Burson, the appellant, was first married to John Walton. After bis death she intermarried with Levi Burson. The second marriage was contracted before the passage of the Act 11th April, 1848, to secure the rights of married women. Under proceedings in partition the estate of her first husband was valued, and one-third of the valuation was directed to remain charged thereon during her natural life, the interest thereof to be paid to her annually.

<p>Error to the Common Pleas of Fayette county.</p> <p>This was an action of replevin to March Term 1851, by Thomas Rankin v. Robert Boyle and John P. Boyle, and was brought under the following circumstances.</p> <p>On a settlement between Robert and John P. Boyle and Thomas Rankin, on the 19th December, 1850, the said Robert and John P. Boyle were found to be indebted to Thomas Rankin to the amount of about $3488, for which the latter agreed to wait for one and two years, provided they gave him security for the payment of the same at that time. Robert and John P. Boyle had a store in Masontown, about twelve miles distant, conducted in the name of John P. Boyle & Co., and not being at the time prepared with security, they assigned and released to the said Rankin, all their right, title, interest, and claim “ to the stock of merchandise, accounts, bonds, notes, judgments, and accounts of the firm of John P. Boyle & Co., doing business at Masontown, as a collateral security that the said Robert Boyle shall make, execute, and deliver to the said Thomas Rankin the bond and approved security above mentioned, in five days from this date.” It was added: “ Then it is understood on his compliance with said agreement that this assignment is to be null and void.”</p> <p>It was dated 19th December, 1850, and signed by Robert Boyle and John P. Boyle, and sealed.</p> <p>The goods and effects were not delivered, and remained in the possession of John P. Boyle & Co., as before; nor was there any schedule, inventory, or appraisement of the property taken. John P. Boyle & Co., at the end of five days, refused to deliver the goods and effects; whereupon Thomas Rankin sued out the writ of replevin, gave bond to the sheriff, and replevied and took possession of the goods and effects, which, according to the appraisement attached to the sheriff’s return, amounted to $5602.84.</p> <p>The goods were subsequently sold by the direction of Rankin.</p> <p>The narr. was in the usual form. The pleas non cepit and property. The plaintiff having died before the trial, the administrators of his estate'were substituted.</p> <p>On the part of the defendants it was contended, on the trial, that Thomas Rankin acquired no interest in the property by virtue of the assignment; that the assignment was nothing but a pledge, and the goods and effects never having been delivered, the assignment as such, was absolutely void; that he was not entitled to the possession of the goods, and that the action would not lie.</p> <p>March 17, 1853, a verdict was entered for the plaintiff by consent, with leave to the Court to enter judgment for the defendants, non obstante. On June 23, 1858, the Court directed judgment to be entered on the verdict for the plaintiff.</p> <p>The opinion of the Court was as follows:</p> <p>“We are satisfied that the instrument of assignment constituted a mortgage, which may be with or without a delivery of the possession of the goods. In the case of a pledge the thing itself passes, but in' a mortgage the title to the thing passes, either with or without possession. The pledgee has but a special property in the pledge. It is the actual bailment of personal property as a security for some debt or engagement. In the case of a mortgage the legal title passes to the mortgagee, subject to be reclaimed at a time stipulated, and if not, then the title becomes absolute, though equity will interfere to compel a redemption: Story on Bailments, secs. 286, 287, 288.</p> <p>“ It is not necessary to inquire whether the possession of the goods could have been required from the mortgagors before the expiration of-the-five days; but certainly after that period they were entitled to the possession. If the agreement contemplated leaving the goods in the possession of the mortgagors, under any pretext whatever, it would be void per se as to creditors: Clow v. Woods, 5 Ser. & R. 275. But it would not be void as between mortgagor and mortgagee, and.here no,ereditors interfered. Why, then, should not the contract be completed by the delivery of the goods ? The plaintiffs had the right of possession, and this action was at their service to enforce it. Judgment, therefore, upon the verdict, upon payment of the jury fee.”</p> <p>It was assigned for error: 1st. The Court erred in deciding “that the instrument of assignment constituted a mortgage.” 2d. In not entering judgment for the defendants, on the verdict.</p>

<p>Error to the Court of Common Pleas of Beaver county.</p> <p>This was an action of assumpsit by Hugh Woods v. Daniel H. Wallace, instituted on 19th July, 1850, on a promissory note, as follows:</p> <p>“27th June, 1846.</p> <p>“ Four years after date, I promise to pay to Hugh Woods the sum of Five Hundred Dollars, with four per cent, interest, it being for a lot of goods bought of him, for which he holds a mortgage on half a lot of ground, owned by my father, at Hardscrabble.</p> <p>“Daniel H. Wallace.”</p> <p>It was stated that the plaintiff, on the 27th June, 1846, sold to the defendant a lot of store goods, for which he gave the note above referred to. The plea was payment with leave, &c.</p> <p>The note having been given in evidence, Robert Wallace was called on the part of the defendant, and it was offered to prove by him certain matters specified; to which objection was made on part of the plaintiff, but the objection was overruled.</p> <p>The testimony of Robert Wallace was, inter alia, as follows:</p> <p>Robert Wallace.—The first I knew about the matter, Woods came to my house in the evening, and said he had a lot of goods on hand, which he wanted to dispose of. * * * He said he thought it would suit him (Daniel Wallace) to buy them. I said I had no money, and I did not think that Daniel had any money to buy them with; but that if the goods would suit Daniel, and he (the plaintiff) would take the half of a lot at Hardscrabble, below the Lockhouse lot, Daniel might take the goods. He (Woods) said, “won’t you give me the whole of it?” I said no. I will give you the one-half of it for the goods, and that is all I will 'do. I said, I won’t do that, unless you give four years, so that Daniel may redeem it (the half of said lot) if he is able. That run us till night. I wrote an instrument, showing that I would make a deed if the money was not paid;, and the note was given at that time. He (the defendant, Daniel Wallace) had the right to redeem the lot.</p> <p>Woods came down here in the beginning of 1850, and asked me if I could not sell that lot for him, that he would sooner have the money than the lot. I told him he had better sell the lot himself. He said he was so confined at the paper mill, that he could not attend to it, This was before the note was due. I notified him of a survey to take place to divide the lot. He said he would not have anything to do with the lot, and would not go. I was ready to make the deed at any time.. I notified him that he might have' his choice of the halves of the lot. He said he would not have anything to do with the lot. I was in readiness to deliver a deed for the lot. Daniel notified him that he would not redeem the lot. It was before this, he (Woods) told me to try to sell it for him. He said he would let it go at a sacrifice. He was notified that there was a survey to be made.</p> <p>Cross-examined.—I notified the 'plaintiff (Woods) of the survey in 1851. I owned it all when the note was drawn. It was bought from Charles Morrow. Fisher rented it from me since this transaction. I offered to sell the' whole lot to Dr. Shoenberger, before and after the bargain with Woods. Freeman never made me an offer for the same. It is eleven or more miles from Brighton. I think I did offer to sell it to Dr. Shoenberger after the contract between Woods and Daniel H. Wallace. I offered it for $1200.</p> <p>Examined by defendant’s counsel.—I expected to sell to Shoenberger, and that was the reason of the right of redemption being reserved. I would not have done anything in violation of the contract.</p> <p>The paper termed a mortgage, referred to in the note, was as follows:</p> <p>“Know all men by these presents, That I, Robert Wallace, for and in consideration of the sum of Five Hundred Dollars, in store goods, sold to my son Daniel, for which he, the said Daniel, has given his bond, bearing even date herewith, and stands bound unto Hugh Woods of Brighton, in the above sum of five hundred dollars. That in order the better to secure the said Woods, that I have granted, bargained, sold, assigned and set over, and by these presents do grant, bargain, sell, assign, and set over unto the said Hugh Woods, his heirs and assigns, the within Indenture of Mortgage for the one-half of a lot of ground laying alongside of the canal, below the Hardscrabble Dam, commencing below the Lock-house lot, and running down the Canal to Robinson’s lot, containing two acres and a half, be the same more or less, to have and to hold one-half of the above described property, granted and assigned, or to be unto the said Hugh Woods, his heirs and assigns for ever. Subject, nevertheless, to be redeemed at anytime during the term of four years, or at any time said Daniel Wallace pays the above sum, any time during the above term. In witness whereof, I have set my hand this 27th of June, 1846. Robert Wallace.”</p> <p>The charge of the Court was as follows:</p> <p>“This is an action of assumpsit, brought to recover the amount of a promissory note. * * * * * *</p> <p>“The defence to the note is, that, at the time it and the paper called a mortgage, were given, the agreement between the parties was, that if the amount was not paid at the expiration of four years, the lot upon which the mortgage was given, was to be taken by the plaintiff, in full satisfaction of the claim, and that a deed had been executed and tendered, in pursuance of the agreement, which was refused.</p> <p>“The plaintiff denies the allegation of the defendant, alleging that the mortgage was given as collateral security to the noté; and further, that if any such agreement was made, it was procured by the fraudulent misrepresentations of the defendant.</p> <p>“ The jury will inquire, 1st. What was the agreement between the parties when the note was given ? Did the plaintiff agree to take a conveyance of the mortgaged property, in full satisfaction for his claim; or was the mortgage merely given to secure the payment of the note ?</p> <p>“ The papers upon their face sustain the position of the plaintiff; and the burden of proof is thrown upon the defendant to show clearly that the transaction was different from what appears in the written instrument.</p> <p>“If the jury are clearly satisfied that the agreement was, that the lot should be received as an extinguishment of the claim, unless redeemed within the four years, at the option of the defendant, the remaining inquiry is, as to the fairness of the agreement; and here the,, burden of proof is upon the plaintiff.</p> <p>“ Did the defendant, knowingly and wilfully, misrepresent the value of the lot, or the offers that had been made to his father for it ? and was the plaintiff induced to enter into the agreement by these representations ? If so, it is not binding, and your verdict should be for the plaintiff.</p> <p>“ But if the agreement is found to have been as represented by' the defendant, and there was no fraud in it, and the deed was duly tendered, there can be no recovery.”</p> <p>March 25, 1853, verdict for defendant.</p> <p>Error was assigned to the admission of the testimony of Wallace. 2. In charging the jury that they will inquire, first, what was the agreement between the parties when the note was given ? and whether the plaintiff agreed to take a conveyance of the mortgaged property in full satisfaction of his claim, or was the mortgage given merely to secure the payment of the note.</p>

This was an ejectment by Daniel Kaine v. Alexander Weigley, and Alexander Stewart and Isabella Stewart his wife, for a house and lot of ground. Both parties claimed under George G. Neal. Held: and juries are always instructed, as we now instruct you, that it must be proved, and cannot be presumed or surmised. That is, you must be satisfied of its existence, not merely suspect it.

This was an appeal from the judgment of a justice of the peace, in a suit brought by Johnson Divelbis v. John A. Lyons, on an alleged guaranty of a note, as follows: “ Monongalia Iron Works, 28 Nov., 1846 “ Six months after date the Monongalia Iron Co. promise to pay to the order of Mr. John A. Lyons, forty-nine dollars and fifty-six cents. “ For the Company, E. T. Ellicott.” Endorsements thereon viz: “Sep. 23, ’47.—I assign the above note to Johnson Divelbis, without…

This was an action of trespass by Samuel T. Lewis v. Calvin Springer. The action was brought against the defendant, who was a constable, for levying upon and selling a horse and set of harness, bridle, collar, and chain, then the property of Samuel Lewis. Lewis died, and Alexander McClean, the administrator of his estate, was substituted.

<p>A writ of error will not lie to an opinion of the Court on a case stated, no judgment appearing to have been rendered. No judgment appearing, the writ of error was quashed.</p>

<p>1. The regularity of a judgment cannot he inquired into in a collateral action. If confessed, by an attorney it is conclusive of his authority.</p> <p>2. Where an attorney appears without authority and confesses judgment, the remedy is against him ; or in a proper case, an application may he made to the Court to open the judgment.</p> <p>3. Where judgment is confessed against several by an attorney under an authority from only one of them, it is the duty of the others to make early application to the Court to open the judgment. If this he omitted, and their lands he sold under it, they are concluded from raising the objection in an ejectment by the sheriff’s vendee.</p> <p>4. The giving notice at the sheriff’s sale of the property, of such defect of authority in the attorney, amounts only to notice that the defendants in the judgment then knew of the defect, hut had taken no proper measures to arrest the proceedings.</p>

This was an-ejectment by Cyrus Elliott v. James McGowan, for ten acres of land, more or less, situate in Lawrence county, formerly Mercer, and which was bounded on the south by the line between… Held: on April 28, 1846, on the premises, by Gr.

Error, to the Common Pleas of Mercer county. Held: in trust, the land in controversy. The defendants’ case was as follows: Sale book, of unseated lands in Mercer county, sold for taxes in 1840—entry therein, “warranted.

<p>1. The principle that the public is not chargeable with the negligence of its officers in matters of account, even as against sureties, is applicable to the case of a county or to county commissioners. Remark in Glover v. Wilson, 6 Barr 293, commented on.</p> <p>2. Where a sheriff was liable to the county for fines and jury fees received by him, it was Held, that the sureties in his official bond were not discharged by reason, that after his account for the same had been settled by the county auditors and the balance due by him for the same ascertained, the county commissioners had given to him checks to an amount exceeding the said balance, which were paid to-the county treasurer without deducting the amount of his indebtedness.</p>

This was an appeal entered 2d September, 1851, from the judgment of a justice of the peace, in a suit by The School Directors of Sugar Creek v. John McBride. In June, 1851, this suit was brought against John McBride to recover damages for not building a school-house according to contract, and judgment recovered for $100 and costs, from which the defendant appealed to the Common Pleas of Armstrong county. Narr. in covenant.

<p>Error to the Common Pleas of Jefferson county.</p> <p>This was an action of ejectment to September Term, 1851, by-Eliza H. Burd and others, executors of the will of Edward S. Burd, v. John Patterson, James Wilson, and Ninean Cooper, to recover the possession of above 305 acres of land. The land was claimed under a lottery warrant No. 157, granted to Joriathan D. Sergeant, on the 17th May, 1785, for 300 acres, and a survey made in pursuance of said warrant on the 9th day of November, 1785, of 305f, which survey was returned and accepted on the 25th August, 1786.</p> <p>On the 5th day of October, 1787, a patent issued to Edward Burd, for this tract No. 157, called “ Burd’s Choice,” the title of Jonathan D. Sergeant therein having become vested in the said Edward Burd.</p> <p>On the 9th day of July, 1828, Edward Burd, by his deed of that date, conveyed to Edward Shippen Burd, which deed was acknowledged on the 19th July, 1828, thus vesting the legal title in Edward Shippen Burd.</p> <p>On the 31st day of January^ 1848, Edward Shippen Burd made his last will and testament, in which he constituted and appointed Eliza Howard Burd, Eli K. Price, and Joseph B. Townsend, the aforesaid plaintiffs, executors of his said last will and testament, with power to sell his lands in counties other than the county of Philadelphia, commonly called “ Back lands,” for the purpose of creating a fund in the hands of the said executors, to he applied towards the due execution of the said will, as and when the same might be found necessary and convenient. This will was proved before the register of the city and county’of Philadelphia on the 23d day of September, 1848; and on the 28th day of September, 1848, letters testamentary were granted to the executors.</p> <p>The defendants relied upon an assessment and sale of this tract No. 157, for taxes for the year 1830 and 1831. In 1830, tract No. 157 was assessed in Ridgeway township as follows:</p> <p>Acres. Val. Tax.</p> <p>1830, No. 157, Jonathan D. Sergeant, 305½ 305.50 $>1.05½</p> <p>1831, No. 157, “ “ 305½ 305-50 1.53</p> <p>upon which assessment a sale was made by J. B. Evans, treasurer, to Elijah Heath, in June, 1832, and on the 10th September, 1832., a deed was acknowledged by said treasurer, to E. Heath, for tract No. 157.</p> <p>From the treasurer’s sale list it appeared that the tract was sold for $50. A bond for surplus was not given at the time of the acknowledgment of the deed, but one was given dated 7th February, 1833.</p> <p>On 29th December, 1834, Elijah Heath and wife conveyed 150 acres of this tract to Jacob Moore, by deed of that date, and on the 6th day of October, they conveyed 50 acres more to Ninean Cooper. On the 6th September, 1846, E. Heath sold 100 acres, the residue of the tract, to James Wilson, by articles of agreement. It also appeared in evidence, that Elijah Heath, and those claiming under him, paid the taxes from 1834 up to 1843.</p> <p>James Wilson took possession of the land in 1846 or 1847, and when this ejectment was brought in 1851, considerable improvements had been made on the land.</p> <p>To avoid the sale by the treasurer for the taxes of 1830 and 1831, the plaintiffs proved that their testator wrote to Stewart Steel, in 1830, to pay the taxes on this tract of land, with others in Jefferson county; that the latter paid the taxes for the years 1828 and 1829 ; that, in May, 1832, he wrote to Jared B. Evans, then treasurer of the county, relative to the taxes on the lands of Mr. Burd. The letter was not exhibited at the trial, but the treasurer, on May 14, 1832, wrote to him: “ I received yours, and in reply I have to say the taxes on the lands of Edward Burd are settled for the years 1830 and 1831.”</p> <p>A letter from J. M. Stedman to Mr. Steel was. produced. It was dated on July 31, 1834, and informed him that the lands were sold in 1832, and bought by E. Heath. It further appeared that in or about 1842, Burd requested suit to be brought for the land, but no ejectment was brought till 1851. Stewart Steel testified that in 1830 he paid the taxes for 1828-9; that he did not remember of giving the names of the tracts in his letter to Evans; he supposed he described them as they were described to him by Mr. Burd. Pie said that he advised Burd of the sale, hut he did not know when—he knew the time for redemption had expired.</p> <p>J. B. Evans, the former treasurer, was examined. He said he recollected of getting a letter from Mr. Steel in reference to the Burd lands. There were lands in the county in name of Edward Burd, and from the tenor of his answer, he should think the inquiry was made as to the Edward Burd lands in general terms; hut it might be otherwise. The taxes were paid on the “ Edward Burd lands” before the date of his letter. That he knew of no other lands belonging to a person by the name of Edward Burd. That he .made search for the letter, and thought it was destroyed. He further said it might be possible that the letter referred to the tracts by their number.</p> <p>On the trial, points as follows were submitted on the part of the plaintiffs: 1. That the treasurer’s sale is invalid, no surplus bond having been filed until after the expiration of two years from the sale. 2. That if the jury rely upon the testimony of Stewart Steel that he had charge of the lands, and wrote to the treasurer, in reference to the taxes of the lands referred to in Mr. Burd’s letter, and received the answer read in evidence, the legal title "would not be divested by the treasurer’s sale. 3. That if the testimony of Stewart Steel is relied upon, the defendants cannot avail themselves of the five years’ limitation.</p> <p>On the part of the defendants, the Court was asked to charge that a period of more than five years having elapsed between the time when the land in dispute was sold and a deed delivered by the treasurer to Elijah Heath, before the present action was brought, the action cannot be sustained.</p> <p>The Court instructed the jury to return a verdict for the defendants; and on 16th February, 1853, a verdict for defendants was rendered.</p> <p>It was assigned for error, that the Court erred in taking the case from the jury.</p>

Error, to the, Common Pleas of Crawford county. This was an ejectment by Robert Greenlee against Rebecca Greenlee, for 75 acres of land in Crawford county. The plaintiff claimed the legal title under a conveyance from E. Huidekoper in 1849, in pursuance of a contract made in May, 1842.

<p>1. In order to enforce a parol promise for the conveyance of land, exclusive possession by the claimant, in pursuance of the contract, is necessary.</p> <p>2. A father promised to convey land to his son on condition of his marriage and residence with him. The marriage took place, and the son resided on the land in conjunction with his father. The father refused to convey a part of the land on account of not having a title from the Commonwealth, but promised to convey it when the patent was obtained; and the deed for the other part was executed and accepted: Held, that as to the part not included in the deed, the son had no better title than he would have had if no conveyance had been éxecuted. The promise by the father that the son should afterwards have a title for the part omitted, being a parol promise, in itself gave no right to the land.</p>

Error, to the Common Pleas of Fayette county. This was an action of ejectment instituted in February 1849, in favor of James B. Davidson v. Hope Little, John Bradman, and Aaron Moore, for about 160 acres of land in Luzerne township, Fayette county. Hope Little died before the trial. The plaintiff claimed under a conveyance from Aaron Norris.

A bill of indictment was found against Michael Henry, for obtaining money under false pretences. On the part of the defendant a rule was obtained to show cause why the indictment, should not be quashed on the ground that the facts alleged in it, if true, did not constitute the offence charged. On March 28, 1853, the indictment was quashed, and this was assigned for error.

This was a scire facias in the name of Presley Spruanee, executor of the will of James Jones, deceased, for the use of Robert H. Moore and others, v. Adam Steele and others. It was issued upon a judgment in ejectment recovered in the Common Pleas of Erie county on the 17th July, 1839.

<p>Error to the Common Pleas of Beaver county.</p> <p>This was an action on the case by James McWha v. Dr. Alexander Gr. McCandless, for an injury sustained by reason of alleged malpractice in the setting and treatment of his broken limb. The action was brought to September Term, 1848.</p> <p>The plaintiff, by accident, had his left leg broken about the 24th March, 1847, and the defendant, a surgeon and physician of good standing in his profession and otherwise, was called to set the leg and attend to it.</p> <p>After the leg had healed, this suit was brought to recover damages for malpractice, on the alleged ground of a want of the exercise of sufficient surgical skill and attention to the broken limb, whereby it was alleged the leg had become shorter than the other one.</p> <p>On the part of the plaintiff in error, the defendant in the action, the only testimony stated on the paper-book, was a deposition of one Dr. Duncan, who, inter alia, testified that he had been in practice over two years. That in the' capacity of a student under the defendant, he went with the defendant to visit the plaintiff about a week after the fracture had occurred. The character of the fracture was that of an oblique comminuted fracture of the tibia and fibula of the leg, which was fractured nearly half-way from the ankle to the knee. The bandages were opened so that he discovered that there were splints on the fore' and back parts of the leg, reaching from the ankle to the knee, to keep up extension and counter-extension. He subsequently stated that at the time he referred to, the leg was considerably swollen. He said he did not feel the limb, but so far as he could determine by the eye, the limb appeared to be correctly set. He further testified that on this occasion he heard a conversation between the defendant and the patient in reference to the limb, and heard the defendant give instructions to the plaintiff as to the dressing and position in which the leg was to be kept. The conversation was in substance a complaint by defendant against the plaintiff for having disturbed the bandages and dressing, by loosing them ; the plaintiff defending the act because his leg was painful. The defendant instructed the plaintiff not to disturb the bandages, to keep them moist and keep the leg in the position he left it, viz. horizontally, telling him if he loosed the bandage the leg might be shortened.</p> <p>He further stated that the plaintiff’s habits were intemperate at times before the accident. He expressed the opinion that from the disposition and habits of the plaintiff, no physician could maké him obey instructions as to the care of his leg; nor, considering his disposition and habits, treat his case in the ordinary manner.</p> <p>He said that he saw the leg about six months afterwards; the bones of it were displaced, but whether that was the result of unskilful treatment or improper conduct of the patient, he said he could not tell.</p> <p>On the paper-book furnished on the part of the defendant in error, the plaintiff in the action, was a statement of the testimony of several witnesses, which was however not brought up with the record.</p> <p>September 3, 1850, verdict was rendered for plaintiff for $850.</p> <p>_ _ A motion for a new trial was made, and it was stated on the paper-book that upon consultation the Court declared that if the plaintiff would release all but $500, judgment wmuld be given for that sum. Before release the President Judge, Bredin, died; and after his death a reléase having been filed, releasing the damages above $500, on 5th June 1851 judgment was entered on the verdict.</p> <p>A writ of error was taken. In the Supreme Court a motion was made for the continuance of the case, on the ground that the bill of exceptions to the charge, which it was alleged had been taken in the case, had not been sealed. The case was continued, and in the opinion delivered in the case by Justice Lowrie, a mode was suggested for having a bill of exceptions made up and sealed. See the opinion in 8 Harris 184-5. In pursuance of such suggestions, a petition was presented to the Court of Common Pleas, representing that Bredin, J., had charged in a certain manner; that exception was taken to the charge, which the president judge had been requested to seal and to file the charge, but though the exception to the charge had been noted by the judge, yet the charge was not filed nor the exception sealed.</p> <p>An affidavit was annexed as to the truth of the facts stated in the petition.</p> <p>Testimony was heard, after which a bill of exceptions was sealed. It was as follows:</p> <p>“ In this case the plaintiff, by his counsel, alleged that he had received serious damage by defendant not setting his leg properly, or when set, of not using proper splints and bandages to keep it in place, and in using no means to keep up extension and counter-extension, in consequence of which, and through neglect of defendant not visiting plaintiff, and examining the leg to see that it was right, the end of the bones slipped past each othér, and when knit, the. broken limb is two inches shorter than the other, or thereabouts.” s . '</p> <p>“ After the close of the testimony on the trial of the above case, the Hon. John Bredin, President Judge, charged the jury substantially as follows:—That the defendant was bound to bring to Ms aid the skill necessary for a surgeon to set the leg so as to make it Straight and of equal length with the other when healed, and if he did not,'he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages. And “ if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite professional skill and knowledge, than we now have. But it is due to the defendant to state that, with the exception of the matter complained of in this suit, there is nothing in the evidence given to show that he is not respectable in his profession.”</p> <p>“ To which charge defendant’s counsel, on the returning of the jury, and before verdict rendered, took exceptions, and requested the said judge to seal a bill thereof, and file his charge of record. The said judge noted the said exceptions, but omitted to seal the bill of exception and file his charge, and afterwards died on the 21st of May, 1851, suddenly and without having done as requested; and we, the Associate Judges of the said Court (the present President Judge having been counsel for the plaintiff), on petition of the defendant’s counsel to supply the said charge and bill of exceptions thereto, having heard the same,, and the answer of plaintiff’s counsel thereto, and the evidence adduced in support of said petition and answer, do consider and adjudge that the foregoing bill in substance correctly contains the charge as delivered to the jury in the said action, and do accordingly certify and seal the same, this 21st day of September, 1853.”</p> <p>It was assigned for error: 1. The Court below erred in charging the jury, “ that the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and of equal length with the other when healed, and if he did not, he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages.”</p> <p>2. In charging the jury that, “ if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite skill and knowledge, than we now have.”</p>

<p>Error to the Common Pleas of Lawrence county.</p> <p>This was an application by Thomas Cattison v. Susan Cattison, his wife, for a divorce. In the petition it was averred that his wife had wilfully and maliciously deserted his habitation for upwards of two years.</p> <p>In the answer her absence was admitted, but it was averred that in July, 1847, and for a long time before, the said petitioner, by the indulgence of a violent temper and intemperate habits and by repeated indignities to her person, had embittered her life; and that on the 1st July, 1847, he assaulted her with a knife in his hand and hurt and drove her off; and was guilty of other cruel and barbarous treatment of such enormity, as to make her condition intolerable and her life burdensome, and thereby forced her to withdraw from his house and family.</p> <p>A general replication was made denying the allegations of the respondent, and an issue was asked. ,</p> <p>On the trial, Daniel Cole was offered on the part of the respondent, to prove that she left her husband in the beginning of July, 1847; that she came to his house on the 2d July between 11 and 32 o’clock at night; that she came barefoot, &c. It was then offered on her part to prove her condition and appearance at the time, and what she said on her arrival “ explaining the motive and reason of her coming there.” This was objected to as incompetent, but was admitted.</p> <p>It was also offered on her part to prove, by another witness, that she came to his house on the same night about 12 o’clock. It was then offered to prove, on her part, her condition and appearance at the time, and what she said as explaining the cause and motive of her flight, and that she claimed assistance. This was objected to, hut was admitted.</p> <p>The Court charged that “ The question for the jury is not whether the defendant has suffered such treatment as to entitle her to a divorce. She is not seeking it, but on the contrary desires to remain in the bond of matrimony. But the question is, whether she has suffered such treatment as acquits her of wilful and malicious desertion from her duty and her husband’s roof. Whether this treatment existed, and what her motives in separating from him were, are facts for the jury.”</p> <p>Verdict was rendered for the defendant.</p> <p>Error was assigned to the admission of the parol testimony; and 3dly, to the charge to the jury.</p>

<p>1. The pleadings on the part of the defendant need not be changed on amendment of the narr. Those put in previous to the amendment are applicable to a new narr. subsequently filed.</p> <p>2. If no plea be put in on the part of defendant, the want of it is not a ground of objection on his part in a Court of error. A trial without plea is a waiver of form and a tacit agreement to try the cause on its merits.</p> <p>3. Though the cause of action cannot be changed by a new count, yet the defendant's responsibility may be stated therein in a different form or as arising in a different way, or by several contracts express or implied.</p> <p>4. The name of one superintendent of the Cumberland Road having been omitted as a plaintiff, in instituting a suit for tolls, it was properly added under the provisions of the Act of 4th May, 1852.</p> <p>5. A plea in abatement is not receivable after a plea in bar.</p> <p>6. It being provided in the Act of 14th April, 1845, to regulate tolls on the Cumberland Road, that in no suit for tolls under this Act or under former Acts relating to the same road, shall any plea in abatement for non-joinder of any person or persons jointly liable with the person or persons, be allowed or sustained. It was Held that a plea in abatement was not admissible after the plea of the general issue to the original declaration and a demurrer to the amended declaration, and after the trial was in progress. The Act of 1845 is not to be confined to cases wherein there is no contract.</p> <p>7. The non-joinder of a co-promissor in an action of assumpsit, is no cause of demurrer. Though in the declaration the contract was stated to have been made jointly with other parties not sued, this will not take the case out of the general rule, it not being averred in the narr. that the party not joined is alive.</p> <p>8. The Act of 1845 to regulate tolls on the Cumberland Road, prohibiting a plea in abatement on account of the non-joinder of a co-promissor as defendant, such non-joinder could not be interposed as an objection to evidence offered in the case.</p> <p>9. A general assignment of error as to several bills of exceptions, or to the answers to several points, is not according to the rules of Court. Each point should be the subject of a distinct specification.</p> <p>10. An agreement was made by a commissioner of the Cumberland Road with two stage companies, as to the amount of toll for a limited time, viz. till May, 1848. After the expiration of the time the companies continued to run their stages till 1851, without any other agreement, paying for a part of the time according to the amended agreement, but not paying anything for the latter portion of it; but not notifying the person in charge of the road, of their refusal to be bound by the contract, or without tendering the amount of toll legally chargeable against them: Held, that the defendants were to be considered as tacitly agreeing to be bound by the contract.</p>

This was an action by Samuel McCullough and Martha his wife, for her use, v. Samuel Wiggins, executor of Andrew Wiggins, deceased. It was brought, to recover the amount of a legacy of $100, under the will of Andrew Wiggins, and also the amount of the wife’s share of the personal estate of the testator not disposed of by the will. The farm on which the testator lived, at the time of his death, had belonged to Robert Lytle.

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of ejectment in the names of Jacob Bank-hart and Rosanah his -wife, for the use of said Rosanah; Robert S. Robinson, Isaac M. Robinson by his committee John Larimer, Sarah Robinson, Rebecca Robinson, John W. Robinson and Matthew Robinson, George Plumer, Jesse Grier and Jane his wife, for the use of said Jane; Jesse Sill and Elizabeth his wife, for the use of said Elizabeth; Abraham Gray and Ruth his wife, for the use of said Ruth, v. James B. Parr.</p> <p>A case was stated in the nature of a special verdict, for the opinion of the Court. It was as follows:—</p> <p>Ephraim A. Robinson, who was intermarried with Elizabeth Parr in 1816, died intestate in the year 1845; his wife Elizabeth Parr having died.in the year 1828. Ephraim A. Robinson left issue but one child,.named James' B. P. Robinson, and he left a widow; named Jane, formerly Jane Speer, who was his third wife. James B. P. Bohinson was the issue of the bodies of Ephraim A. Robinson and Elizabeth Parr, his first wife.</p> <p>Ephraim A. Robinson, at the time of (his) death, was the owner in fee of the lands for which this suit is brought; having purchased them after his intermarriage with Elizabeth Parr, and before her death. At his death, the lands for which this suit is brought, descended to his only child, James B. P. Robinson; subject to the interest perhaps which his widow, Jane Speer, had in them under the intestate laws.</p> <p>James B. P. Robinson died intestate, unmarried and without issue in the year 1852, seised in fee of these lands, leaving neither father nor mother, brothers or sisters; but leaving two paternal aunts, Ruth Gray and Elizabeth Sill, two of the plaintiffs; the other plaintiffs are the children of paternal uncles and a paternal aunt, who were deceased prior to the death of James B. P. Robinson,</p> <p>The defendant, James B. Parr and Isaac Parr, who resides in the state of Ohio, are the only maternal uncles and next of kin on the mother’s side, to the said intestate, James B. P. Robinson deceased.</p> <p>If the Court be of the opinion that the plaintiffs, or any of them, are entitled to recover the whole of the lands described in this suit, then judgment to be rendered accordingly.</p> <p>But if the Court be of the opinion that the plaintiffs, or any of them, are only entitled to recover a part of the lands described in this suit, then judgment to be rendered for such of them as may be entitled to recover, for the quantity they are entitled to recover; and for the residue, judgment to be rendered for the defendant. If none of the plaintiffs are entitled to recover any portion of the lands described, then judgment to be rendered for the defendant.</p> <p>If the plaintiffs recover more than four-sixths of the lands described, the costs to be paid equally by the plaintiffs and the defendant. Should the plaintiffs recover not more than four-sixths, then the plaintiffs to pay all the costs, and such judgment to be rendered as will secure their payment according to the above agreement.</p> <p>The right to sue out a writ of error was reserved.</p> <p>In the seventh section of the Intestate Act of 8th April, 1883, it is provided, viz.: “ In default of all persons heréinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the next of kin to such intestate.”</p> <p>Sec. 8. “Provided, That there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children.”</p> <p>Sec. 9. “Provided also, That no person who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein; but such real estate, subject to such life estate as may be in existence by virtue of this Act, shall pass to and vest in such other persons as would be entitled by this Act, if the persons not of the blood of such ancestor or other relation had never existed, or were dead at the decease of the intestate.” '</p> <p>The opinion of Agnew, President Judge, was as follows:—</p> <p>“This is a controversy between the paternal aunts and issues of paternal aunts and uncles, on the one side, and the maternal uncles on the other; the estate having descended from the paternal side. Two questions are raised. First. Whether the 9th section of the intestate law confines the inheritance to the paternal line of kindred, as being of the only inheritable blood through which the estate came; or whether the 11th section extends it to all the next of kin, without distinction of blood. Second. If confined to the paternal line, can the issue of deceased uncles and aunts inherit along with the surviving aunts.</p> <p>“ It is argued for the maternal relatives, that the 9th section applies only to ‘ the cases before mentioned’ in the preceding sections ; and therefore does not control the cases in those which follow, and consequently that the 11th section extends the descent to the next of kin without distinction of blood. This argument would be conclusive had there been no provision for the next of kin previous to the 9th section; but the 7th section which precedes the 9th, and is one of ‘the cases before mentioned,’ provides that in default of all persons before described, to wit, lineal issue and brothers and sisters and their lineal issue, the estate shall descend to the next of kin. If the construction of the 11th section asked by the maternal relatives be right, it follows that the 7th, as qualified by the 9th section and the 11th section, flatly contradict each other.</p> <p>“ But it cannot be supposed, in a bill drawn by the revisers with so much accuracy and care, as will be observed by reading their accompanying report (Hood on Executors 506, &c.), and passed by the legislature without alteration, such a blunder could have been made. We must, therefore, look to see whether these sections are reconcilable and traceable to distinct classes of cases, intended to be provided for. We think they are.</p> <p>“ When the reviewers had finished the 7th section, they had provided for all cases where known kindred in either line existed, and the estate could not escheat. But when they followed the 7th by the 9th as a proviso, they undid the generality of the former, by the restriction of the latter. Consequently, as soon as the stock of kindred to whom the ancestral blood belonged, became extinct, the estate must escheat, notwithstanding there was another line of blood still living. Accordingly, to provide against this, the 10th section gave the estate in fee to the surviving husband or wife, to whom it might well be supposed the intestate would desire that it should descend, on the extinction of the line of ancestors from whom it came. Then follows the 11th section, which, in default of husband or wife, vests it in the next of kin, without respect of blood; and at the same time provides for any misconstruction of the rule of computation of kindred, or the persons who are to inherit, by expressly excluding the common law heir. By this means the finality of the 7th section, which was opened by the proviso of the 9th to exclude a particular line, is again closed by the 11th, which readmits the excluded line, to save the escheat. This is made more manifest by being followed by the 12th section, providing for the escheat. Thus it will be seen'that the 9th operates on one class, to whom as having the’ ancestral blood it may be supposed the intestate would have given it, and the 11th can operate on another to whom he would have given it rather than to the public.</p> <p>“The counsel of defendants, the maternal uncles, allege that Maffit v. Clark, 6 W. & Ser. 258, is decided on the ground that the mother is not of the blood; and- being excluded on that ground as one of “ the before-mentioned cases” referred to in the 9th section, the case does not affect the construction they put on the 11th. This may be true of the immediate point decided. But there is an, aspect in which Maffit v. Clark bears on the question. The mother of the intestate being excluded by the 9th section from want of inheritable blood, is it likely the revisers intended that her brothers and sisters should take, though she' could not, and their kindred to the intestate could only be traced through her ? Yet this will be the construction demanded by defendants’ counsel. James R. Parr and Isaac Parr, the maternal uncles, were brothers of the intestate’s mother. Now suppose the mother had survived, would the inheritance have passed by her and vested in them, though they were obliged to trace kindred to the intestate through her ? The reason which in Maffit v. Clark caused it to pass her, must cause it to pass them also. It would be monstrous to suppose that, she being alive, her brothers and sisters should be preferred before her as to her own son’s estate.</p> <p>“Baker v. Chalfant, 5 Whart. 477, is cited by the defendants’ counsel. The comprehensive reasoning of the Chief Justice, who seldom descended into particulars, seems to impugn the operation of the rule excluding for want of inheritable blood. But a close, examination of the case proves the reverse, and shows that the Court held to the rule of the proviso in the only part of the case to which it could be applied. That case was a conflict between the paternal uncles and the half-sisters of the intestate. Twenty-five acres the intestate purchased, and one hundred and ten acres he inherited from his brother of the whole blood who had purchased it, and ninety acres he acquired by inheritance of one-half from his father, apd by purchase of the other half from his brother. The judgment of the Court gave all to the half-sisters, except the one-half of the ninety acres descended to him from his father, which was given to the paternal uncles. The argument of counsel is not given, but it is clear that the controversy was whether the one hundred and ten acres descending from the brother of the whole blood to the intestate, should go to the paternal uncles, or to the half-sisters of the brother from whom they came. The reasoning of the Chief Justice is intended to show, that there was no reason why the half-sisters should not inherit the estate descending from the brother of the intestate, rather than that acquired by purchase; because they were related in equal degree to both, and could as properly inherit from the first brother, who was a purchaser, after descent cast from him, as they could from the second. But, by awarding to the uncles the half of the tract which came to the intestate by inheritance from his father, the Court emphatically recognises the rule of inheritable blood, when the estate comes from an ancestor, who left relatives still surviving, nearer of kin to Mm than the half-sisters of the intestate, who are not of kin to him at all. In this way did Justice Huston understand Baker v. Chalfant, in Maffit v. Clark, 6 W. & Ser. 262.</p> <p>“As to the second question, it is sufficient.to-say, that the issue of deceased paternal aunts and uncles are excluded by the express words of the 8th section, that there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children: see Good v. Herr, 7 W. & Ser. 256; also Hood on Exectitors 509, Report of Commissioners. Besides, they are not the next of kin according to the 7th section, the surviving aunts being one degree of kin nearer to the intestate than the children of uncles and aunts.</p> <p>“The Court therefore give judgment-in the case stated, in favor of Jesse Sill and Elizabeth his wife, and Abraham Gray and Ruth his wife, for the whole premises, to wit: one undivided half in right of said Elizabeth, the other undivided half in right of the said Ruth, and that the costs be paid according to the agreement, to wit, one-half by the plaintiffs and the other half by the defendant. Judgment as of September 3, 1853.”</p> <p>It was assigned for error, that the Court erred in rendering judgment on the ease stated in favor of Jesse Sill and Elizabeth his wife, and Abraham Gray and Ruth his wife, for the whole premises ; that the judgment of the Court should have been for the said Sill and wife, and the said Gray and wife, for the one undivided half part thereof.</p>

This was originally an action before a justice of the peace, by Rupp and Faulk, for the use of T. J. Rupp, v. Thomas McMaster, and was founded on a book account of $41.86 and interest, and a claim for damages sustained by defective workmanship in the ironing of a wagon. . The defendant claimed, as a set-off, $39, for furnishing iron, &c., and for ironing a wagon, and for cash paid to the plaintiff on account.

This was a scire facias issued in Armstrong county, in the name of John Gaullagher, for the use of John and James Power, now for the use of Andrew Porter Wilson, v. Thomas Caldwell, who survived James Caldwell, to revive a judgment. The original judgment was entered in Huntingdon county, on 26th December, 1882, for $363, interest from 14th August, 1831. Revived 11th January, 1847, for $480.79, by scire facias and two returns of Nihil.

This was an alias scire facias on a mortgage issued to November Term, 1851, in the name of Andrew M. Jones, executor of Benjamin Jones, deceased, and others, v. John K. Shryock, Robert Bingham, and William L. Shryock, late partners, &c. The mortgage was dated on 13th June, 1846, for $2500, and the scire facias was issued to recover two instalments, viz. $600 payable on 1st June, 1849, and $700 on 1st June, 1850.

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of assumpsit, brought in January, 1852, by John Sheeler v. Win. Suter, administrator of the estate of Daniel Tarr, deceased. The plaintiff claimed to recover for services rendered to Daniel Tarr, with whom he went to live in 1828 or 1829, and continued to live with him till the summer or fall of 1845, when he left. It was alleged that he had an agreement with Tarr for wages, at $7 or $8 per month; and this suit was brought to recover for the whole period of service. The plea was non assumpsit, non assumpsit infra sex annos, and payment with leave.</p> <p>On -the part of the defendant it was alleged that the plaintiff had no family, that he had made his home with the intestate, and worked when he pleased; that he was treated and provided for as a member of the family, and that he was not working under any contract for wages, at least for several years before he left. Eurther, that he left the service of the intestate in August, 1845, and as this suit was not brought till January, 1852, the statute applied to it.</p> <p>It appeared that Daniel Tarr died in January, 1852.</p> <p>On part of the plaintiff, it was alleged that such an acknowledgment of the debt had been made by the intestate as prevented the operation of the statute; and to prove this, the testimony of Daniel Tarr was relied on. for the more material part of his testimony, see the opinion in this case.</p> <p>On the part of the defendant points were proposed, the third of which was to the effect that there is no evidence of such an acknowledgment of the debt within six years as will take the case out of the operation of the statute of limitations.</p> <p>To this the Court charged, that, “ The declarations of Daniel Tarr, senior, to Sheeler, shown by Daniel Tarr, junior, if he is believed, would be a sufficiently distinct acknowledgment. He spoke expressly of tbe pay for his labor.”</p> <p>The Court further instructed the jury, that if they found for the plaintiff, the verdict should be for the wages for services from 1831 till 1845, viz. for fourteen years, allowing interest, if they saw fit, on each year, after deducting any annual amount paid in the way of clothing.</p> <p>March 1, 1853, verdict for plaintiff for $2079.75.</p> <p>It was, inter alia, assigned for error, 3. That the Court erred in the answer to the third point; 4. In the charge as to interest.</p>

This was an appeal by O. O. Loomis, assignee of William A. Hill, a judgment creditor of Ephraim Jones, from the decree of the District Court of Allegheny county, directing distribution of the proceeds of sheriff’s sale of the real estate of Ephraim Jones.

This was an. action of debt founded upon the 14th section of the General Manufacturing Act of 7th April, 1849. It was brought in the name of I. N. Erazier, for the use of M. Eldred, Jr., v. William A. Hill. On the trial, it was proved, on the part of the plaintiff, that the claims in question had been assigned to Eldred before the suit was commenced; that it was commenced by Eldred and was being prosecuted by him and for his own use.

William J. Wills, the appellant, was a son of John Wills, late of the city of Pittsburgh, deceased, who died in the year 1822, leaving a widow and three minor children, viz., John, Lawson, and William, and leaving considerable real and personal estate. The widow was appointed the guardian of William, and continued to act as such until her decease, in 1831.

<p>Where both an appeal and writ of error were taken in the matter of a proceeding in the Orphans' Court by a person against his former guardians, in which an issue was directed to the Common Pleas, and the decree of the Orphans' Court was reversed on the appeal, this Court, on the writ of error, simply set aside the proceedings in the Common Pleas.</p>

This was an action of debt by Sidney Doe v. Reuben, Peter, and John Fritts. It was brought on the insolvent bond of Reuben Fritts, in which the other defendants were sureties. The bond was dated January 16, 1851, and was conditioned for the application by Reuben Fritts for the benefit of the insolvent laws under the Act of 12th July, 1842. His petition was filed on the 4th February, 1851, and the 4th Monday of April was fixed for the hearing.

On the 23d October, 1849, there was filed in the prothonotary’s office a bond, dated 8th October, 1849, signed by John Knox, junior, promising to pay to Samuel Flack, or order, $1200 for value received, with an authority to the prothonotary to enter judgment for the same. On the 19th May, 1851, on part of the defendant, was obtained a rule to show cause why the judgment should not be stricken from the record, or opened, and a feigned issue formed to try its validity.

This was an ejectment instituted on 24th May, 1837, by James Patterson v. Thomas Ross, Samuel Ross and others, for 150 acres of land or thereabouts, situate in Brighton township, Beaver county.

<p>1. The admission of evidence on an indictment in the Quarter Sessions, is not the subject of revision in this Court.</p> <p>2. It was not assignable .for error that one of the associate judges, who was the prosecutor in an indictment, sat upon the bench during the trial of the case, the names of the judges not being stated on the record, and it not there appearing that the prosecutor was one of them. Such fact, stated in the opinion of the judge in overruling a motion for a new trial, was not properly before this Court.</p> <p>3. A verdict recorded of guilty of the four last counts in the indictment, is in substance a finding upon all of the counts, and is in effect a finding of guilty upon the four last counts, and of not guilty as to the others.</p> <p>4. A paper returned by the jurors stating their verdict, though filed, is no part of the record, and cannot be used to contradict the record. _</p> <p>_ 5. The verdict entered was “guilty of thp four last counts in the indictment.” After the discharge of the jury, but during the same week of the term, the record was amended so as to read, “ guilty upon the four last counts in the indictment.” Held, that the amendment was merely formal.</p>

This was an action of covenant by David Benford v. George A. Clarke, on an. article of agreement dated 2d February, 1848, by which the plaintiff agreed to manage a tannery, &c. The breach assigned was the non-payment of $500. Plea, payment, set-off, and that plaintiff mismanaged the tannery, &c. On 30th July, 1852, on part of the plaintiff, a rule was entered to take depositions on a commission, and interrogatories were filed.

This was a proceeding had under a petition of Philip Keiffer, Hathan Keiffer and others, praying the Court to appoint viewers (under the Act of Assembly of March 27, 1848,) to assess the damages done them by the Pennsylvania Bailroad running through their farm in Hempfield township, in the county of Westmoreland.

<p>Appeal from the decree of the Common Pleas of Westmoreland county.</p> <p>This was an appeal by John Irwin, Samuel Gamble, James Claason aud others, interested in a judgment entered in the name of John Herron v. James R. Speer & Co., from the decree of the said Court, directing distribution of money raised by sheriff’s'sale of the real estate of James R. Speer, being a furnace property.. The said estate, which was represented to be his individual property, was sold, in May, 1849, on an execution in favor of Hampton, Smith k Co. v. James R. Speer, and was purchased by William Eichbaum for $5200. The net proceeds were for distribution. James R. Speer & Co. were engaged in the manufacture of iron at a furnace in Westmoreland county, in the year 1848, and the personal property about the furnace belonged to them.</p> <p>William Eichbaum claimed the net proceeds of the said sale on a mortgage for $5000 on the premises sold, being the furnace property, executed in his favor by James R. Speer. It was dated 5th July, 1848, and was left for record on sixth December, 1848, at 8 o’clock P. M.</p> <p>The appellants claimed the said proceeds under a judgment to November Term, 1848, confessed in favor of John Herron v. James R. Speer & Co'., for $3000,-and entered also on sixth December, 1848. It was alleged that this judgment was confessed to Herron for the use of the laboring men at the furnace, and others.</p> <p>On 26th February, 1850 (after the real and personal property of Speer & Co. had been sold at sheriff’s sale), application was made, on the part of John Irwin and above twenty others, claiming that the judgment in name of Herron had been confessed in part for their use. A rule was granted to show cause why they should not be substituted as plaintiffs. On May 26, 1850, other applications were made for Samuel Gamble, Peter Olaason and others. The rules were made absolute.</p> <p>On their part it was alleged that the Herron judgment was entitled to priority over the mortgage, on the ground that it was entered of record at an earlier period, on the 6 th of December,, than the mortgage.</p> <p>On the 21st February, 1851, a suggestion was made by Eichbaum, the mortgagee, that the judgment in favor of Herron was void as to other lien creditors; and also, that he was entitled to preference for his mortgage, because it was intended and agreed that it was to be entered before the judgment, and that by the mistake of a common agent it was not so done.</p> <p>A feigned issue was directed to try the facts. After testimony had been given, the. jury were dismissed under an agreement of counsel that the Court , should determine, from the evidence, 1. Whether the judgment of Herron v. Speer & Co. was fraudulent and void as to creditors. 2. Whether the said judgment, if valid, was to be postponed to the mortgage of Speer to Eichbaum.</p> <p>The case appeared to be substantially as follows:</p> <p>On 5th July, 1848, Dr. Speer executed the mortgage in question to Eichbaum, to secure him for endorsements, with the understanding that if Eichbaum would not enter it up till a necessity arose, Speer would give him notice so that the mortgage might be the first lien. Such necessity arose, and an arrangement between them was made to the following effect, viz.:</p> <p>Speer procured a judgment bond to be drawn in favor of John Herron, the object of which was to secure the hands at and about the iron works, and those who had furnished supplies. That neither Herron, the trustee, nor the creditors to be benefited by it, knew of the judgment till some time afterwards. Eichbaum’s mortgage and the judgment were sent by a messenger for entry with the knowledge and instruction of Eichbaum and Speer, that they be entered of record in such a manner that the mortgage should have a preference over the judgment. Written instructions to that effect were given. In the instructions the agent was directed to have the mortgage recorded, and the hour marked on it.</p> <p>2. “ Then put the three judgments—Von Bonnhurst & Co.’s two judgments, and the John Herron judgment; in the prothonotary’s office.</p> <p>3. “ Have fi. fa’s, issued on the judgment of $3352 and Herron’s judgment; thefi. fa. on the Herron judgment to go into the sheriff’s hands first, Von Bonnhurst & Co.’s to be next.”</p> <p>The agent was not present at the trial; but it was represented, in the opinion of the Court below, that he arrived at Greensburg on the evening of the 6th December, and by accident or design, first handed the judgment to the prothonotary between 7 and 8 o’clock p.m., and then gave the mortgage to the recorder at 8 o’clock P.M., at a public-house, the office being closed. The next morning, 7th December, the recorder entered it as if left for record on the 6th, at 8 o’clock p.m.</p> <p>He said it did not appear how long after the entry of the judgment Herron became acquainted with the fact of his being a trustee; but, on the 25th August, 1849, he executed a paper declining the trust, and disclaiming any personal interest. 'It. did not appear that the parties in intérest adopted the act till 26th February, May 26, and August 4, 1850, when applications were made on their part to substitute them as plaintiffs.</p> <p>The Court said that the lien of the judgments might be restrained: 2 Jones 95, Sankey v. Reed. That the judgment, if adopted, must be taken subject to the terms agreed to by Dr. Speer as to its lien being postponed: 13 Ser. & R. 196; 1 Miles 246. Paley on Agency 145-7; Story on Agency sec. 237-250. Adoption cures the want of authority: Story on Agency 249. The Court decreed distribution: 1. To a judgment in favor of J. McMahon, entered on 9th November, 1848.</p> <p>2. To the mortgage of Eichbaum.</p> <p>3. To the judgments of Von Bonnhurst and Herron, fro rata.</p> <p>4. To the judgment of Hampton, Smith & Co., entered on December 7, 1848, if any proceeds remained after the payment of the claims before referred to.</p> <p>From the decree this appeal was taken, and the exception was that the Court erred in entering judgment for the plaintiff, and in decreeing as stated.</p>

<p>School directors are not liable to indictment for not keeping the schools open. The remedy prescribed for. the default, by the 8th section of the School Act of 7th April, 1849, is for the Court of Quarter Sessions, upon complaint in writing by six taxable citizens of the district, and on due proof thereof, to declare their seats vacant and to appoint others in their stead.</p> <p>See, in the opinion, remarks upon the 13th section of the Act of 21st March, 1806, relative to remedies provided or duties enjoined by Act or Acts or Assembly.</p>

<p>1. Though a sale of unseated land for taxes will not divest the taxes assessed upon it for the year of the sale, Liggett v. Long, 7 Harris 499, yet it does divest the lien of all taxes assessed for any year prior to that in which the sale is made.</p> <p>2. Land was sold in 1832 for taxes, and was redeemed within two years from the sale: Held, that such sale extinguished a road tax assessed on the land for the year 1829, though it was not included in the list of taxes certified by the commissioners to the treasurer, and for payment of which the land was sold.</p> <p>3. The road taxes of 1829 having been in law extinguished as respects the purchaser by the sale in 1832, the sale of the land in 1834 for such road tax conferred no title.</p> <p>4. There being evidence in the case that a part of the tract sold for taxes was seated before the taxes imposed since its former sale, or not thereby extinguished, were assessed, it was not improper for the Court, in an ejectment against persons claiming under a sale in 1834, to say to the jury that the testimony tended to show that the land became seated in 1831, and so continued until after the second sale in 1834, no special instruction on the subject having been asked.</p> <p>5. The acceptance by the purchaser of unseated land of the money paid for redemption of the land by one acting as agent for the owners, and the surrender of his deed, destroyed his title under the sale.</p> <p>6. A receipt for taxes paid by the purchaser after the land had been redeemed, is immaterial.</p> <p>7. A letter by the person who afterwards redeemed the land, addressed to the owners of it, giving information of the sale for taxes, and letters relative to the land, written by him or another one or more years after the redemption, and addressed to one of the defendants who claimed from the purchaser at the tax sale, were irrelevant, and inadmissible, on the part of the said claimant, to contradict the alleged fact of his agency when he redeemed the land.</p> <p>8. The rejection of evidence, the admission of which would not have changed the result, is no ground of error.</p> <p>9. Where one professing to act for the owners of land sold for taxes, procures from the purchaser a conveyance in his own name, but professedly received for them, and afterwards claims the title for himself, he cannot retain the possession against the owners till he has been reimbursed the consideration paid for the conveyance.</p> <p>10. The agent was not protected against the claim of the heirs by the expiration of five years -limited by the Act of 1804; nor was he entitled to compensation for improvements on the land, made after the conveyance to him.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This case was brought into the Common Pleas by appeal from the judgment of an alderman in a suit by The Allegheny and Manchester Plank-Road Company v. James A. Speer, to recover the balance due on a subscription for three shares of the stock of the said company at $25 per share.</p> <p>The pleas of defendant were nul tiel corporation, non assumpsit, and that he subscribed on condition that there should be no tollgate in the borough of Manchester, and that there was one erected therein.</p> <p>The subscription, however, was not conditional, and no condition as to the subscription was proved otherwise.</p> <p>The Act under which the charter was obtained was passed on 6th May, 1850, and on the face of the published Act (see page 699) it appears not to have’been signed by the speakers of the Senate and House. It was however approved by the governor.</p> <p>Another Act was passed on 21st April, 1852 (Acts, p. 374), providing, inter alia, that the Act of 1850 is declared to be as valid and effectual as a law, as if the same had been duly signed by the speakers of each branch of the legislature; and also validating acts of the company done previously.</p> <p>On the trial the Court was asked to charge: 1. That to constitute a valid Act of Assembly, it should be signed by the speakers of the Senate and House. 2. That the Act being void, the charter was void. 3. That the company had no corporate existence at the time the defendant contracted to pay for the stock. 4. That the contract being void, the Act of 1852 could not give vitality to it.</p> <p>McClure, J., refused to charge as requested, as he said, at the instance of a corporation in this collateral proceeding; but he charged that the defence was not available.</p> <p>Yerdict was rendered for plaintiff for $55.</p> <p>It was assigned for error that the Court erred in negativing the points submitted.</p>

Error, to the Common Pleas of Erie county. This was an action of trespass quare clausum fregit by Jane M. Walters v. James Caldwell and Daniel McDaniel, to recover mesne profits. The defendants plead not guilty. Daniel McDaniel, Sen., originally owned the land described in the plaintiff’s narr. He died intestate in the year 1813, leaving six children, one of whom was Jane M. Walters.

<p>Error to the Common Pleas of Warren county.</p> <p>This was an appeal entered to September Term, 1852, from the judgment of a justice of the peace in an action of trespass by Ptolme Axe and Emeline Axe his wife, for her use, v. Lemuel Hoar. It was brought for taking away a yoke of oxen, a cooking stove, and other personal property, which, on the part of Emeline Axe, were claimed as her separate property. The plea was, not guilty.</p> <p>On the trial, testimony was given on part of the plaintiff to the following effect:</p> <p>Charles Anderson, sworn: About a year ago I took a yoke of cattle, a cooking stove, a grindstone, and cross-cut saw, and ox-yoke, by directions of defendant; oxen worth from $50 to $60.</p> <p>* * * * * * * * * *</p> <p>I found the property in the possession of this woman, Mrs. Axe. It was not far from the middle of July, 1852.</p> <p>Cross-examined: The oxen were across the river, in Hailey’s field. I called on her for the property. She told me where the oxen were, and I went and got them'. She had the other things at her house.</p> <p>Henry Grander: I have seen the oxen—worth from $55 to $60. * * * . I think the plaintiff got the property the first Monday in June, 1852. It was the first day of June court.</p> <p>Cross-examined: I did not see it then. I thought it came then, because Ptolme Axe wanted my wagon then, to get some things. Plaintiff lives on the opposite side of the river from me, on land left by Mrs. Axe’s first husband. It belongs to her and her children ; never heard that Ptolme Axe bought it.</p> <p>Direct examination resumed: I saw this property two or three weeks before Anderson took it. The day Anderson came she had loaned the oxen to plough.</p> <p>On part of the defendant, the Court was requested to charge, that in order to sustain the suit, there should be evidence that Emeline Axe was the owner of the property in question, or that she was a joint owner with Ptolme Axe, and that there is no sufficient evidence of that fact in this case. 2. The legal presumption is that the property on the premises was the property of the husband. 3. That the possession of the wife is the possession of the husband ; and if found in her custody it is not sufficient from which to infer ownership in the wife.-</p> <p>Galbraith, J., charged the jury, inter alia: “The plaintiff’s' counsel refer to the 39th section of the Act of 25th April, 1850, (.Pamphlet Laws, 1850, page 576). The use, recited on the record, to Emeline is a matter of no consequence; no proof need be offered of that. He, the defendant, offers no evidence. He appears in no other light, by the evidence, than as a trespasser. It is not a matter of his concern whether the property belongs to the husband exclusively, or was the separate property of his wife; and so far as he is concerned in this suit, we think there is sufficient evidence from which it may be presumed that the property here belonged to the wife, and therefore the suit is rightly brought in the name of the husband and wife. The evidence is referred to you, and if you think it sufficient, you will find .for the plaintiff-the value of the property taken, with such damages as you may consider reasonable, under the circumstances. * * * *</p> <p>* * * With these qualifications, defendant’s points answered in the affirmative.;”</p> <p>June 10, 1853, verdict for plaintiff for $83.74.</p> <p>It was assigned for error that the Court erred in charging that it was not a matter which concerned the defendant whether the property in dispute was the exclusive property of the husband or the separate property of the wife. 2. That there was sufficient evidence in the cause for the jury to infer that the suit was rightly brought in the name of the husband and wife. 3. That the Court did not answer the points:</p> <p>In the Act of 25th April, 1850, section 39, it is provided as follows :</p> <p>“ Any suit or suits at law hereafter to be commenced in any of the Courts-of this Commonwealth, touching or concerning or for the recovery of any- property, real, personal, or mixed, belonging or secured to any married woman by virtue of the provisions of the Act relating to the rights of married women, passed the 11th day of April, 1848, may be brought in the names of such married woman and her husband, to the use of the said married woman; and a recovery in such suit or suits shall be for the exclusive benefit of such married woman.”</p>

<p>1. A corporation which is hound by its charter to keep the streets in repair, is liable for an injury occasioned by its neglect to do so; and it is not material whether the neglect was wilful or otherwise.</p> <p>2. The carriage of the plaintiff was upset whilst passing along a way deviating from the street on which he had passed, and leading to the crossing of a stream in a borough, the bridge over which had been carried away by flood, by which accident his leg was broken., It was Held, that although there were other streets in the borough by which the plaintiff could have safely reached the point towards which he was going when the accident occurred, yet if the officers of the borough, permitted the street to be used without warning the public of its imperfect condition, they cannot charge the plaintiff with inexcusable negligence or want of ordinary, care in using it.</p> <p>3. Culpable negligence, or want of ordinary care on the part of the party injured, would have been a defence; but the burden of proving such lay on the corporation, the defendant in the action.</p> <p>4. The act of incorporation prohibited, the borough officers from levying in any one year, a tax exceeding one half of one per cent, on the valuation, “ unless some object of general utility should require the same, in which case the assent thereto of a majority of the taxable inhabitants of said borough shall be previously obtained in writing.” It was Held, that the rebuilding of a bridge to accommodate the public in travelling along a public street, is an object of general utility.</p> <p>5. The people of the borough are the corporators, and they cannot allege their unwillingness to perform a duty as an excuse for its non-performance.</p> <p>6. It is not necessary, in a suit against a corporation for negligence in repairing a street, to recite in the declaration the Act of Assembly which binds the corporation to keep its streets in repair, nor to aver that the corporation had funds to do so.</p> <p>7. If the narr. in such a case were defective, this Court would not reverse for that reason if the point were not made in the Court below.</p>

Indictment against E. R. Sankey. The bill of indictment contained three counts: one for forgery and causing to be forged and… Held: if one who writes a will of a man lying mortally sick, insert a clause in it after the testator is speechless and without memory, and he did not command the writer beforehand to put in that article or clause, it is not forgery under the 5th Eliz. chap. 14, (the general statute on the subject of forgery.) But, singular as it may seem,…

<p>Error to the District Court of Allegheny County.</p> <p>This was an action of assumpsit by William P. Rupp, Administrator, &c., of Simeon B. Pearson, deceased, v. James O’Neal, for the price of a lot of ground sold under an order of the Orphans’ Court for the payment of debts. The suit was to January Term, 1853, the writ being returnable on the first Monday of January, 1853, and was served on 17th December, 1852. An affidavit in support of the claim was filed, the claim being for $825, with interest.</p> <p>On 28th December, 1852, an affidavit of defence was filed, in which it was, inter, alia, alleged that the title was defective; that the fee .simple to the greater part of the property was vested in third parties, and that the sale did not pass such title as the plaintiff agreed to convey, &c.</p> <p>On 18th April, 1853, a rule to choose arbitrators on the 5th May was entered on the part of the plaintiff. On the 24th May, this rule was stricken off at the costs of the plaintiff. On 27 th May, 1853, a rule was granted to show cause why judgment should not be entered for want of sufficient affidavit of defence, the reason assigned being, that “ the facts set forth in the affidavit of defence filed do not amount to a defence in law.” It was stated on the paper-book that, “ on the 18th of June, 1853, the rule to show cause, being regularly reached on the argument list, was by the Court made absolute.”</p> <p>Judgment was entered, and the sum was liquidated at $867.62.</p> <p>It was assigned for error, that the Court erred in entering the judgment: 1. Because the affidavit was sufficient, fully meeting the plaintiff’s affidavit; and 2. If the affidavit was not sufficient the plaintiff, by his rule to plead, his rule to arbitrate, and by his delay, had waived “ objection to the form and substance of the affidavit of defence, and thrown defendant off his guard.”</p> <p>The 66th rule of Court provides, that “ in all actions of debt or assumpsit, when the plaintiff shall file with his precipe an affidavit stating the amount verily believed to be due from the defendant, he shall be entitled to judgment as for want of appearance, unless defendant shall file an affidavit of defence with his' appearance.”</p>

Error, to the Court of Common Pleas of Indiana county. This was an action of trespass quare clausum fregit for digging and carrying away ore, brought by Elias Baker v. Peter Shoenberger, George S. King, and others. This suit was brought on the 30th June, 1847. It was tried before, and verdict was rendered for the defendants. See a report of the case in 6 Harris 138, &c., under the name of Baker v. King.

<p>Error to the Common Pleas of Erie county.</p> <p>This was an action of ejectment by John Galbraith v. Peter Fisher, to May Term, 1850, in the Common Pleas of Erie county. The plaintiff claimed title under a sale by an assignee in bankruptcy ; and the defendant claimed under ‘a subsequent sale under a judgment against the bankrupt which existed at the time of his application for the benefit of the Act on the subject of bankruptcy, and under which the property had been levied on at the time of the said application.</p> <p>A stated case was agreed upon to be considered in the nature of a special verdict. It was to the following effect:—</p> <p>Both parties claim title to the land and premises in dispute from Simeon Dunn, who was the owner thereof on the 5th day of June, 1839, and so continued until divested of his ownership by the proceedings hereinafter mentioned.</p> <p>On the 24th day of June, 1843, the said Simeon Dunn was duly declared and decreed a bankrupt, and upon due proceedings had, in pursuance of the Act of Congress entitled “An Act for establishing a uniform system of bankruptcy throughout the United States,” passed the 19th day of August, 1841, was discharged in the District Court of the United States, Western District of Pennsylvania, and James H. Armstrong appointed his assignee; all whereof was on the same day duly certified.</p> <p>On the 1st day of November, 1844, the said James II. Armstrong, as assignee aforesaid, in pursuance of, and by force and virtue of the power and authority vested in him by law for such purpose, duly sold, and by deed of that date conveyed the said land and premises, under and according to the several provisions of the said Act of Congress, unto Carson Graham, his heirs and assigns.</p> <p>On the 30th day of August, 1848, John Galbraith, the plaintiff in this cause, obtained a judgment in this Court against said Carson Gfraham for the sum of $6000, and after due proceedings were had therein for that purpose the said premises, by virtue of a writ of venditioni exponas to August Term, 1850, No. 54, were sold to the said Galbraith, and a deed by the sheriff, dated the-7th day of February, 1850, was, upon the 8th day of February, 1850, acknowledged, and delivered to him.</p> <p>On the 5th day of June, 1839, Charles M. Reed obtained a judgment in the Common Pleas against said Simeon J)unn, for the sum of $523.26, entered to May Term, 1839, No. 277. To May Term, 1842, No. 45, a seire facias was issued upon said judgment, and a judgment thereon was entered for $613.48, on the 10th day of May, 1842. Upon this judgment a writ of fi. fa. to May Term, 1843, No. 76, was issued, and a levy by virtue thereof was made on the premises in dispute, on the 15th day of April, 1843;' and, after the application in bankruptcy, an inquisition was held, and condemnation had with an appraisement, according to the then existing law, at the sum of $2500; and subsequently thereto sundry writs of venditioni exponas were issued thereon, and by virtue of the third pluries writ to February Term, 1845, No. 122, the sheriff of said county sold the said premises to said Charles M. Reed, on the 1st day of February, 1845, for the sum of $560, and a deed thereafter in pursuance thereof, was by the sheriff duly acknowledged and delivered to said Reed.</p> <p>It was further stated that of -the time of the decree in bankruptcy, and of the appointment of the assignee, the said Charles M. Reed had due notice, as also of the decree, appointment, and proceedings; and it was stated that his. said debt and judgment against said Dunn was provable therein according to the several provisions of the said recited Act of Congress, of 19th August, 1841.</p> <p>If, upon the foregoing state of facts, the Court were of opinion that the title and right to possession of the premises in suit, is in the plaintiff, then judgment to be entered for plaintiff generally, with costs of suit; but if the Court were not of that opinion, then judgment to be entered for defendant for costs.</p> <p>Subsequently, without argument and pro forma, the Court entered judgment for defendant.</p> <p>It was assigned for error, that the Court erred in entering such judgment.</p>

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of ejectment to August Term, 1849, byiJohn H. Shoenberger and Margaret his wife, late Margaret Oust, in her right, and Elorinda Blair, late Elorinda Cust, v. William Jack. The defendant having died, William Jack and others were substituted. It was brought to recover the one-third of a tract of land containing 77 acres, situate near to Greensburg.</p> <p>Both parties claimed under Matthew Jack. The females, who were plaintiffs, claimed as heirs at law of said Matthew Jack, who died, seised of the land, on 3d October, 1843, leaving neither wife nor lawful issue, but leaving two brothers, viz., William, against whom the ejectment was brought, and Wilson; and a sister, Mary Oust, since dead, whose heirs were plaintiffs in this case.</p> <p>Matthew Jack, by his will, dated 19th day of September, 1828, devised to his brothers, Henry and Wilson Jack, his interest in several lots in Kittaning, and lastly, after payment of his debts, he devised “the whole rest and residue” of his estate, “whether real or personal,” “and everything” at the time of his death he might be “possessed of, to his brother, William Jack, and his heirs.” The will was proved on 4th November, 1843.</p> <p>The property, part of which was in dispute, was acquired by Matthew Jack, after the making of his said will; it was acquired by him between 1831 and 1837.</p> <p>The defendants, as heirs of William Jack, the devisee, claimed under the said will and under testimony and evidence offered to show a parol republication of the will. On the trial it was, inter, alia, offered to give evidence, on their part, in order to show that Matthew Jack, after the making of the will, had conveyed to his brothers, Wilson and Henry, the lots in and near to Kittaning, and that he had requested another will to be drawn, leaving out the names of Wilson and Henry, and making William Jack sole devisee; and that such a will was drawn but perhaps from accident or neglect was never signed by him.</p> <p>The testimony of various witnesses was also offered in order to show that the testator, after he had acquired the property part of which was in dispute, said that William Jack was to have all of his property, and that Mrs. Oust was not to have any of it.</p> <p>Burrell, J., decided that parol evidence was inadmissible to prove a republication of the will; and he rejected the evidence offered with that view, and instructed the jury to find for the plaintiffs.</p> <p>Verdict for plaintiffs.</p> <p>It was assigned for error, that the Court erred in rejecting the testimony and evidence offered to show a parol republication of the will. The questions were stated to be, First, Whether a will can be republished by parol; and if this were decided in the negative, then, Secondly, Whether the rule applies to a will made prior to the Act of 1833.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by Francis Sellers, and John Nicols, partners, v. Jenkins Jones. It was brought to recover $403.69, claimed as a balance due on a book account. A bill of particulars amounting to $607.03, was filed, on which credits were allowed to the amount of $203.34, leaving a balance of $403.69.</p> <p>It was alleged in defence, that the defendant was entitled to a credit of $275, being the amount of three' promissory notes of J. & J. Bell, which were payable on 1st. of May, on 1st of August, and on 1st of November, 1849, and were each payable in metal, at the price “Washington Furnace metal sells at on credit,” &c.</p> <p>The pleas were non assumpsit, and payment with leave, &c. Afterwards two' special pleas were filed. In one of them it was alleged that the said notes called “ promissory notes” were endorsed by the defendant and delivered to the plaintiffs who accepted them for the said sum of $275; in the other they were called “notes in writing,” and it was alleged that before the notes were payable, the defendant, on account of goods, &c. delivered and to be delivered to the defendant to their account, endorsed and delivered them to the plaintiffs who accepted them, &c.</p> <p>The plea of set-off was added.</p> <p>The pleas were severally traversed and issue was joined.</p> <p>On the trial the notes were offered in evidence on the part of the defendants, and they were objected to on the ground, 1. That they were not evidence under the pleadings. 2. The notes, so called, are due-bills, payable in iron. 3. They were delivered to plaintiffs prior to the. date of the account. The objections were overruled, and exception was taken.</p> <p>Some letters of J. Jones were given in evidence, for a statement of which see the opinion in this ease.</p> <p>On part of the plaintiffs four points were submitted: The first was to the effect that the notes were “property orders” or notes payable in goods, and were not evidence under the pleas of payment or set-off, without proof- of consideration. 2. That to charge the plaintiffs with the amount of the notes, as payment for goods, &c., the defendant must prove an agreement to that effect; that such agreement was not to be presumed from the mere fact that the notes remained in the possession of the plaintiffs. 3. That if the notes were deposited without any agreement of plaintiffs to receive them as payment, they cannot be set off in this action, and that plaintiffs were under no obligation to pursue the Bells. 4. That an assignment of the orders was not to be construed as payment, unless the metal was delivered to the plaintiffs, &c.</p> <p>It was stated that the firm of J. & J. Bell failed about 1st August, 1850, and that a few days thereafter a return of the notes was offered, but they were refused.</p> <p>Forward, J., charged, inter alia, as follows:—</p> <p>“Were the notes of J. & J. Bell to Jones, received by plaintiffs as cash ?</p> <p>*“The endorsement of Jones in blank might import an actual transfer; but his letters to plaintiff of May 1 and July 12, 1849, would lead us to think that these notes were endorsed to plaintiffs for the purpose of enabling them to demand and receive the sum mentioned therein. In other words, that plaintiffs were- the mere agents of Jones, and not purchasers of his paper. Taking this to have been the true relation of the parties, the plaintiffs were chargeable with ordinary diligence in the agency aforesaid, and are liable for the omission of it, unless it. be shown that the Bells were insolvent,* a fact which cannot be fairly-alleged, inasmuch as their failure in business did not take place until July or August, 1850. * * * * The notes in question were clue respectively 1st May, 1st August, and 1st November, 1849. The time of their transfer and delivery to plaintiffs does not certainly appear. Judging from the testimony, I infer that they were in plaintiffs’ hands before the maturity of either of them. *If received by plaintiffs, before their maturity, the failure of the Bells to remit the metal, ought to have been communicated to Jones without unnecessary delay, or in default of such notice the plaintiffs should have instituted suits against the Bells, and used reasonable diligence to enforce a compliance with their contracts, or obtain damages for their non-performance.* It appears that a part of the iron due on the first note was received by plaintiffs and a credit entered in favor of Jones on their book for the amount.”</p> <p>* * * * * * *</p> <p>He added, *“ Upon the facts in evidence, assuming their truth, my opinion is, that the amount due on the notes referred to, ought to be credited to the defendant, and that your verdict should be rendered accordingly.”*</p> <p>He observed that it would be perceived that the points were answered in the charge, and needed no further attention.</p> <p>Verdict was rendered for the plaintiffs for $128.69. Subsequently a motion for a new trial was made, and a mistake being alleged as to a credit being omitted, the amount of the verdict was enlarged, by consent, to $219.68.</p> <p>The 1st, 2d, and 3d assignments of error were to the parts of the charge between asterisks. 4. In taking the facts from the jury in the portion of the charge to that effect. 5, 6, 7, and 8. That the Court erred in not charging as requested in the 1st, 2d, 3d, and 4th points; and the 9th, was to the refusal to charge specifically on the points.</p>

<p>Appeal from the decree of the Court of Common Pleas of Indiana county.</p> <p>R. B. McCabe, assignee of Andrew W. Porter, and Robert W. Porter,, appealed from the decree of the said Court, on his account. An appeal was also entered by I). Stanard.</p> <p>Andrew W. Porter, and Robert W. Porter, by deed dated 8th June, 1839, assigned all their estate, real and personal, to Richard B. McCabe, in trust for the payment of their creditors. The deed was recorded; and the appraisement exceeded $18,000. McCabe, the assignee, filed an account which was confirmed in September, 1841, showing a balance for distribution of aboye $3000. Distribution was made.- .</p> <p>On 10th August, 1843, Andrew W. Porter and wife, for the consideration of $10, conveyed to D. Stanard, in trust for the wife and children of the said A. W. Porter, 1650 acres of land. This real estate appeared to have been acquired after the assignment.</p> <p>A. & J. B. Stevenson, creditors of A. W. & R. W. Porter, had an action brought in their name against A. W. & R. W. Porter, to May Term, 1846, in the Common Pleas of Venango county. R. W. Porter was not summoned. On 30th November, 1848, judgment was recovered against A. W. Porter for $1147.87. Pi. fa. was issued to February Term, 1849, and a levy was made on one of the tracts of land embraced in the deed of trust, containing 250 acres. Vend. exp. to August Term, 1849. On 18th May, 1849, D. Stanard had paid to one of the attorneys of plaintiff $200, for which a receipt was entered on the writ; and afterwards, Stanard having paid the further sum of $996.19, the balance of the judgment, it was assigned to him by the counsel for plaintiff, to be proceeded in for his use, at his own risk, &e.</p> <p>The testimony of a witness was taken, who deposed that he would have bid $2000, on the 18th May, 1849, for the land levied on, if the sale had not been stopped.</p> <p>Afterwards an application was made to the Common Pleas of Indiana county, by or on the part of D. Stanard, for a citation to McCabe, ithe assignee, to render an account; and the supplementary account, in question in this case, was filed in pursuance of the citation issued.</p> <p>It was intimated on the part of the assignee, that no other creditor, or either of the assignors, joined in asking for the citation.</p> <p>Exceptions to the account were filed on behalf of Stanard, and an auditor was appointed, who reported a balance in the hands of the assignee of $2125.69-f. Exceptions were filed, and at September Term, 1851, the Court decreed a balance of $381.32J, to be in the hands of the accountant. From such decree this appeal was taken.</p> <p>Exceptions were filed in this Court, on the part of the appellant, and also on the part of D. Stanard. The .second exception on the part of the accountant, was to the effect, that the Stevenson judgment was extinguished by the payments by Stanard, and could, not be legally used in procuring the proceeding in this matter.</p>

<p>1. This Court will not reverse for an error which is immaterial.</p> <p>2. The plaintiff claimed the land in opposition to his own deed, in its terms absolute, but contending that it was executed merely as security for a debt. The case was submitted to the jury with instructions that the' plaintiff might recover, 1. If proved that the deed was intended by the parties to it as a mortgage. 2. That the defendant had purchased from the grantee with notice of the plaintiff’s right to redeem; and 3. That the debt had been paid before suit brought:</p> <p>Held, that though it was not strictly correct to add the third position as a condition on which the recovery depended, for if the payment had been made subsequent to the suit there might have been a recovery subject to the payment of costs, yet as the allegation made in the case was of payment before suit, and none was proved or alleged to have been made after suit brought, the error was immaterial.</p> <p>3. Even though the defendant, and his vendor the grantee in the deed, knew that the deed was a mortgage, and yet wilfully denied it, the plaintiff, the grantor therein, could not recover without proving the payment of the debt which it was alleged by him to be intended to secure. By such denial the defendant did not forfeit his claim to the money due by the plaintiff.</p> <p>4. Where there is some evidence of a material fact it is the duty of the Court to submit it to the jury.</p> <p>5. It appeared that upon a transcript, filed in the Common Pleas, of a judgment against the plaintiff in the suit trying, confessed before a justice of the peace for $146.96, there was entered a credit for $100 (being the amount of the consideration mentioned in the deed in question), it being expressed in the receipt to have been received in land, and the receipt was entered thereon for several years before the trial of this case, and though execution had been issued, it was not shown by the plaintiff in the ejectment trying, that the credit was not marked on the execution also:</p> <p>Held, that it was not error in the Court to charge that if such credit were entered with the assent of the plaintiff, or without his objection, if he knew of its entry, it was a strong circumstance against his claim to the land, on the alleged ground that the deed was intended as a mortgage; and though the evidence of the plaintiff's knowledge of the entry on the transcript was not clear, yet if there was some evidence of it, it was the duty of the Court to submit it to the jury.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was a scire facias issued on 2d October, to September Term, 1852, in favor of Daniel Steinmetz v. Peter B. Fraley, on a mortgage of Fraley to Steinmetz. The seize facias was returned “ made known.” The name of counsel was marked on the record opposite to the name of Fraley, the defendant. The scire facias was upon a mortgage dated-- —, 1850, from Fraley to Steinmetz, reciting a bond for $1000, for security of which the mortgage was given.</p> <p>October 22, 1852, an affidavit of defence was made by Patrick Levy, which was filed. In it was stated that he had a just defence to the plaintiff’s demand; that the premises had been conveyed to him by William Deal, sheriff, by deed acknowledged in open Court on the 17th day of January, 1852, they having been sold under execution against the defendant Fraley, to whom they at the time belonged, and that the affiant had since sold the same, with a guarantee against liability for the mortgage. It was further stated as follows:—</p> <p>A judgment was entered by the plaintiff, by virtue of the warrant of attorney accompanying the bond, for $1000, for the better securing of which the mortgage now sued on was given, as by reference to the said mortgage will appear; upon the said judgment an execution was issued, by virtue of which the sheriff levied upon certain goods and chattels of the defendant Fraley, and sold them under this execution, which was the first delivered to the sheriff, (for there were others which came to the sheriff against said defendant Fraley, before the time of sale), and another having the same attorney for plaintiff, the two amounting to about $2600, or less. The sheriff paid to I. Hazlehurst, attorney in fact for A. S. Letchworth (who was plaintiff’s attorney), and for others, $2153.29, less costs, &c., and took receipt therefor, a copy of which is herewith exhibited as taken from the sheriff’s docket, and the execution therein described is for the sanie debt for which this mortgage was given, and this suit is brought. He says that the debt now sued for has been paid; all of which he is advised, and believes he can fully prove upon trial.</p> <p>Signed, Patrick Levy.</p> <p>The receipt of I. Hazelhurst, referred to in the affidavit, was as follows:</p> <p>Received December 9, 1851, from William Deal, sheriff, twenty-one hundred and fifty-three 29-100 dollars, proceeds of sale, less costs, &c. Signed by him as attorney in fact for A. S. Letchworth, Isaac Sulger, and G. W. Thorn.</p> <p>Following was a receipt signed A. S. Letchworth, plaintiff’s attorney, for $4.62, “ my costs.” These receipts were on the sheriff’s docket entry of the case of Daniel Steinmetz v. Peter B. Fraley, 424 March Term, 1851. Fi. fa. Real debt $1000. Interest from September 25, 1850.</p> <p>A supplemental affidavit, made November 10, 1852, was as follows :</p> <p>Patrick Levy being duly sworn, says: That there is a defence to the claim in this case. That this affiant was the owner of the mortgaged premises, and sold them to John McGlensey by deed dated and executed the 5th day of October, 1852; and at the time of said sale it was agreed between this affiant and said John Mc-Glensey, that this affiant should defend the claim herein made, and bear its responsibility, and this defence is for and on behalf of this affiant, and the said, John McGlensey.</p> <p>All the facts stated in his former affidavit of defence, he believes to be true, and he believes that he will be able to prove them upon trial.</p> <p>Notwithstanding the affidavits, the Court directed judgment for plaintiff, as it was stated, for want of a sufficient affidavit of defence.</p> <p>Error was assigned to the entry of judgment.</p>

The question involved in this case arose through exception to an auditor’s report on the accounts of John S. Twells, assignee for the benefit of creditors of Livingston & Lyman. Before the auditor, Morris & Co. preferred a claim by promissory note for above $700 ; and other creditors preferred claims exceeding $11,000. On these claims the auditor allowed a dividend of 8.26-100 per cent.

<p>Error to the Common Pleas, Philadelphia.</p> <p>This was an appeal from the judgment of an alderman in a suit on a book account, by John P. Sanderson v. William Daniels and Samuel B. Smith, and was entered to June Term, 1852.</p> <p>On 7th July, 1852, narr. was filed and rule to plead in eight days or judgment. July 17, 1852, plea in abatement filed to the nonjoinder of a third person, who was a copartner with the defendants. September 20, rule to show cause why the plea in abatement should not be stricken off and judgment entered for want of a plea. October 30, 1852, rule made absolute. December 6, 1852, rule entered to set aside the execution and let defendants into a defence. December 24, 1852, rule discharged.</p> <p>Error was assigned: 1st, to the entry of judgment. 4th. That the prothonotary had no right to assess the damages; and 5th. That the Court erred in not setting aside the fi. fa. and opening the judgment.</p>

There appeared to be two appeals in this proceeding, by persons claiming under the will of Jacob Haars, deceased. One of them was by Michael Light, David Light, and others; and the other was by John Landis, and by the same Michael Light, David Light, and others, who did not appear to have been named as appellants in the other appeal.

This was the case of a writ of habeas corpus, issued at the instance of Michael W. McCabe v. J. M. Christopher, keeper of the debtor’s apartment in Philadelphia. The return do the writ was that the relator was detained by commitments, or warrants of arrest, issued by Judge Hare, of the District Court, dated July 2, 1853, in case of Marchand v. McCabe, June Term, 1853, 626, debt $1120.81; and in six other cases, the claims in all exceeding $7000.

This was an action of trespass on the case, brought by John B. Springer v. Christian E. Spangler. A narr. was filed alleging a special parol contract, and setting out breaches thereof, and claiming damages.

<p>1. Delivery of personal property is not necessary to the vesting of the title, it is only evidence of it; but the delivery should be made in pursuance of the contract.</p> <p>2. After a contract of sale is completed, the risk of the property from accident, as between the parties, is in the purchaser where the loss has arisen from accident and without wrongful detention, or delay in delivering it, or carelessness in keeping it, or other fault, on the part of the seller: but if the loss occurs before the contract is completed it must be borne by the seller.</p> <p>3. In order to constitute a perfect or complete sale, the subject-matter of it-must be specified and defined by the parties, and this cannot be if the greater portion of the property has not been procured by the vendor.</p> <p>4. On 17th October, 1847, the defendants, residing in Philadelphia, addressed the plaintiff residing in Richmond, Virginia, inquiring on what terms he would deliver in New York from 100 to 150,000 hoop poles. To this the plaintiff replied, that he would deliver the quantity specified alongside vessel at Richmond at a price stated. On the 21st October the defendants replied agreeing to the proposed delivery, and stating that they would write in a day or two what they would do with the poles. The plaintiff, by letter of the 25th Oct. acknowledged the receipt of the defendants’ letter, and inter alia stated that the hoops were not all on hand but would be had soon. On the 29th, the defendants replied desiring to know how many of the hoops were ready or would be for a vessel which might be chartered at New York to receive them. On the 5th November, the plaintiff replied that he had upwards of 40,000 ready. On the 15 th and 22d, he again wrote that he had no more hoops ready, but that some boat loads were on the way. On the 25th November the defendants wrote that a vessel had been chartered and would take 50,000, and stating that it was desired that they be tied up in bundles of 30, at the expense of the persons interested; and that the plaintiff should have them all ready on some wharf so that there need be no delay.</p> <p>A flood occurred on the 25th and 26th November, before the last letter could have been received, and many of the hoops, which had been for weeks on the wharf, wore carried away and others were damaged:</p> <p>It was Held, that there was no contract before the plaintiff’s letter of the 25th October, acknowledging the receipt of the defendants’ acceptance of his proposition as to the manner of delivery, and the defendants’ reply of the 29th October, admitting the receipt of the plaintiff’s letter of the 25th; and inasmuch as the greater-part of the hoops were not then on hand, were not in bundles of 30 as suggested, and that the defendants had not been informed that the hoops had been set apart for them, the ownership of the hoops was not then changed but remained in the plaintiff.</p> <p>5. Delivery on a wharf is not delivery alongside of a vessel when there was no vessel present to receive the hoops, having been carried away by the freshet before the vessel arrived.</p> <p>6. To constitute a delivery the hoops should also have been bound in bundles as directed, and set apart for the defendants, and proof given that the defendants agreed as to the delivery or that notice had been given them that the hoops would be or were delivered.</p>

A commission of lunacy was sued out on 8d October, 1850, against Lewis Clark. It was alleged, on the paper-book, that, owing to the absence of two of the jurors, the jury, on the application of the petitioners, was discharged on the 28th January, 1851, and a new jury was summoned. On 22d Pebruary, 1851, an application, on behalf of'the said Lewis Clark, was made to the Court to vacate the order of 28th January.

<p>1. Mere possession of personal property which is not used for purposes of trade, though indicative of title is not title; and the person to whom the possession is transferred must take the hazard of a demand by the proper owner.</p> <p>2. A party, under an agreement with the author, having the exclusive right to publish certain books, the copyright to which was in the author, and which books he was to have stereotyped, sold to others the one-half of his interest, the latter to pay one-half of the cost of the plates, and to publish at their own expense; with the further provision that the latter should not have the right to dispose of their interest in the looks without the consent of their vendor; and in case of the death of either of the vendees or on their dissolution, the former was to have the right to claim the plates upon giving satisfactory notes for the amount paid by the purchasers, with interest.</p> <p>It was Held, that the first owner, on tendering satisfactory notes, had the same right to recover the plates from one to whom the first purchaser had pledged them for advances as he would have had against his own vendees.</p> <p>3. The parties who paid for half of the plates under their contract, had not the right of disposing of them as against their vendor, because they had but a qualified property in them, holding them as tenants in common with him for the mere purpose of publication in subservience to the original contract with the author of the books.</p> <p>4. Having by the pledge to a stranger to the said contract incapacitated themselves from applying the plates to the purposes to which they were designed, the first seller had the right, on tendering proper notes, to recover the value of the plates in an action of trover against him who had them in pledge, whether the latter had or had not notice of the terms on which the plates were held.</p> <p>5. There being no special count or averment in the declaration as to loss sustained by the plaintiff in consequence of the interruption of his business, or for the cost and trouble of obtaining new plates, damages were not recoverable therefor; the measure of damages was the value- of the property converted, with interest from the time of the conversion.</p>

This was an appeal by Joseph M. Bennett from the decree of the District Court, Philadelphia, overruling exceptions on his part to the report of an auditor relative to the distribution of proceeds of sheriff’s sale, on executions by Jo^n C. Hunter and others v. the firm of J. & W. L. Ward. W. L. Ward and J. P. Ward were in the watch and jewellery business, Chestnut street, Philadelphia.

<p>Appeal from a decree of the Common Pleas, Philadelphia, made on 10th December, 1853, on the third account of John Bacon and others, assignees and trustees, under an assignment by the President, Directors, and Company of the Bank of the United States, dated 7th June, 1841.</p> <p>The appellants, Sir James Hogg and others, were holders of post-notes of the Bank United States, dated the 14th day of October, 1839, and the 15th day of April, 1841, issued under a loan made by Messrs. Denison & Co., of London, amounting to £317,000 sterling.</p> <p>The Bank of the United States was incorporated by Act of the legislature of Pennsylvania, of 18th February, 1836. It after-wards became embarrassed, and on the 11th May, 1837, it suspended specie payments, and, after intermediate resumptions and suspensions, it finally suspended on the 4th February, 1841.</p> <p>On the 4th and 5th May, 1841, two Acts of the legislature of Pennsylvania were passed, authorizing the bank to make a general assignment of its assets for the benefit of its creditors. On the 1st May, 1841, an assignment was made to James Dundas and others of assets amounting to about $7,772,250.33, to secure the payment to the city banks of $5,078,444.94. On the 7th June, 1841, a second assignment was made. of assets, amounting to $12,475,300.60, to John Bacon and others. The material question involved in this appeal arose under the terms of this assignment. In the preamble to the assignment, it was stated as follows:—</p> <p>“ Whereas the said party of the first part are indebted to sundry persons, depositors in the said bank and the branches or offices thereof; and also to sundry persons, holders of notes of the late Bank of the United States, incorporated by Congress; and to sundry persons, holders of notes of the present bank, being notes of the ordinary kind, payable on demand, and commonly used in circulation; and also to sundry persons holders of notes of the said bank commonly called post-notes (other than post-notes held by, or issued to, certain banks in the city and county of Philadelphia, for which security was provided and given by an indenture, bearing date the first day-pf May, in the present year, and which are not intended to be provided for and embraced in the present indenture): And whereas the said party of the first part has resolved and agreed to provide an adequate security for the payment of the said deposits, and of the said notes, and of the said post-notes (save and except the said post-notes heretofore provided for as above said), and of the interest to accrue upon them,” &c.</p> <p>The assignment was made to pay the deposits, notes, and post-notes, according to the said preamble.</p> <p>By a statement called the “ State of the Bank,” dated the 7th of June, 1841, it appeared that the post-notes of the bank outstanding at that time amounted to $485,368.34. Post-notes, payable to John Ross or bearer, on account of the Cherokee Tribe, being what was commonly, called the Moss Issue, constituted a part of the post-notes of the bank, and have been recognised as such by the different trustees and auditors and in the final adjudication of all the Courts in the accounts already filed.</p> <p>On the 4th and 6th of September, 1841, the bank made a 3d assignment of assets, amounting to $15,929,038.15, to the said James Robertson and others,-’ in trust for their creditors without preference. This assignment included all the remaining assets, excepting stocks amounting to $15,581,000.13, hypothecated in Europe for more than their value; and sundry shares in Pennsylvania improvement companies, set forth in the schedule annexed to the said assignment, which were subsequently, under legal process, gold for the sum of $1185.</p> <p>On. the 22d March, 1852, the bank executed to Molton C. Rogers and others, a general assignment in pursuance of the directions of the Acts of the 4th and 5th May, 1841. The trustees therein named, by way of distinction, have been called statutable trustees.</p> <p>On the 23d day of August, 1839, the bank executed to Samuel Jaudon, a power' of attorney to borrow money in Great Britain or on the Continent of Europe or elsewhere. And for that purpose, to execute all papers and documents, and deliver all securities or evidences of debt, which the said attorney might, think fit.</p> <p>In pursuance of this authority Jaudon contracted various loans in Europe.</p> <p>1. On the 26th day of December, 1839, at Paris, he borrowed of DeRothschild Fréres ¿S'st’g 900,000. To secure this loan in pursuance of the written agreement between the parties, the bank deposited certain securities, and issued certain instruments called in French “obligation,” translated into English, “debenture.”</p> <p>2. On the 14th day of January and 4th day of July, 1840, at Amsterdam, Jaudon borrowed of Messrs. Hope & Co. two sums of 5,500,000 and 4,500,000, in all 10,000,000 guilders, equal at 42 cents per guilder to $4,200,000; to secure the payment of this loan, Jaudon entered into two written agreements with Messrs. Hope & Co., and deposited certain stocks therein enumerated.</p> <p>These agreements were executed according to the laws of Holland, and remain deposited with the notary public at Amsterdam as thereby required.</p> <p>8. On the 1st day of April, 1887, the bank-borrowed of Messrs. E. Huth & Co., of London, £ st’g 200,000, and to secure the payment issued bonds under the seal of the said bank, with coupons called “warrants,” annexed, payable in the city of London.</p> <p>4. On the 12th day of October, 1839, the bank, by Jaudon, and Denison & Co., of London, entered into an- agreement by which the bank deposited stocks amounting to $4,450,000, to secure the payment of the notes of the said bank, amounting to £ st’g 800,000, with interest, dated at London, the 14th of October, 1839; one-half payable at London, on the 15th day of April, 1841, and the other half on the 15th day of April, 1842.</p> <p>Six hundred and fifty notes, to wit, £ st’g 800,000, were accordingly issued in the city of London, and circulated in that city under the denomination of post-notes or post-bills, in contradistinction to those issued under the Rothschilds loan, which "were called debentures.</p> <p>On the part of the appellants it was stated that these notes were also called post-notes and post-bills in the gazettes and price currents and the newspapers of the United States, at and about the time they were issued, and prior to the 7th of June, 1841. These were in the following form:—</p> <p>Bank of United States.</p> <p>Loan of £800,000.</p> <p>£1000.</p> <p>The President, Directors, and Company of the Bank of the United States, promise to pay the bearer, on the 15th day of April, 1842, at the banking-house of Messrs. Denison & Co., in London, one thousand pounds sterling} with interest thereon from the 15th day of October, 1839, at the rate of six per centum per .annum, payable semi-annually, on the delivery of the annexed coupons.</p> <p>This note forms a part of a loan, &c.</p> <p>For the President, Directors, and Company of the Bank of the United States.</p> <p>Signed S. Jaudon, Attorney.</p> <p>London, this 15th day of October, 1839.</p> <p>On the 15th April, 1841, when the first class of notes, amounting to £ st’g 400,000, were about to become due, Jaudon and Denison & Co. entered into a new agreement. The bank deposited the additional security of $225,000 of Pennsylvania 5 per cent, stocks; the notes when becoming due were cancelled, and new notes at time were issued payable on the 15th day of April, 1842. Coupons for the payment of the interest, payable before maturity, were attached to all the notes.</p> <p>On the 26th day of April, 1853, John Bacon and Thomas Robins filed their third account, containing the sum of $324,747.07, to be distributed amongst the creditors. This account was referred to auditors to report distribution.</p> <p>On the part of the appellants, were presented to the auditors, post-notes issued under the Denison loan, amounting to £ st’s 317,000, with a statement of the amounts received from the collateral stocks pledged, principal and interest, leaving a balance due of $631,400.05, with interest .thereon from the time that Denison & Co., by virtue of the authority vested in them, had sold the collaterals hypothecated as before stated.</p> <p>The Marine Insurance Company of Philadelphia presented a claim of $9557.16, and John Pickens presented a claim of $1890.76. These claims were both for interest on notes and post-notes of the bank sold by them, and by the purchasers paid to the bank in satisfaction of debts due to the bank at the time of the assignment under the provisions of sections 20 and 6 of the Acts of 4th and 5th May, 1841.</p> <p>Washington Jackson also presented a claim for the sum of $43,555.23, with interest from the 29th of June, 1838, alleged to' be due to him as the plaintiff in a writ of foreign attachment against Warwick and Claggett, in which the bank were made garnishees.</p> <p>James Robertson and others, trustees under the assignment of the 4th and 6th of September, 1841, claimed the balance of the fund after paying the dividends to certain undisputed creditors enumerated in schedules attached to'the said report.</p> <p>In the report of the auditors it was stated that notes, such as those issued under the Denison.loan, were not “ commonly called post-notes in Philadelphia and in the United States, at the date of the assignment/’ 'They rejected the claim of the holders of such notes; also the claim of Washington-Jackson; and reported that after the dividends of undisputed creditors were deducted, the following be paid, viz.: 1. The sum of $9557.16 to the Marine Insurance Company of Philadelphia; 2. The sum of $1890.76 to John Pickens; 3. The balance of $249,285.72 to James Robertson and others, trustees as aforesaid..</p> <p>Exceptions to the report were filed on the part of the holders of the notes under the Denison loan, and on the part of Washington Jackson; but, on the 10th December, 1853, the Court overruled the exceptions and confirmed the report.</p> <p>By an agreement of parties, and by "order of Court, a large sum was paid over to the trustees under the assignment; leaving $71,447.92 subject to decision upon the appeals.</p> <p>An appeal was entered for holders of the Denison notes, for whom the whole fund was claimed; and another appeal was entered for Washington Jackson.</p> <p>In the case of Hogg’s Appeal exceptions were filed,. 1. To the decree in favor of the Marine Insurance Company. 2. To the decree'in favor of Pickens. 3. To the decree of $60,000 to Robertson and others, as trustees. 4. To the decision that the notes issued under the Denison loan -were not entitled to a dividend.</p> <p>In the proviso to the 6th section of the Act of 5th May, 1841, it is enacted, That the said trustees (under the assignment authorized to be made by the Bank of the United States), shall receive in payment of debts due to the said bank or to them, at par, the notes or other evidence of debt issued or. created by said bank.</p>

This was a feigned issue in which Pascal Yearsley was plaintiff, and John Flanigen and Geo. W. Carpenter were defendants. The dispute arose upon a claim preferred by the plaintiff to a portion of the fund raised by sheriff’s sale of a building used as a distillery, and a lot of ground.

This was an action by Herman Pennypacker v. J. C. Umberger, brought to recover the amount of a check, drawn by Umberger, the defendant, on the Western Bank, to the order of W. W. Clark, and was endorsed by Clark. The check was drawn on the 4th of March, 1852, and was for $250. The bank was notified by the drawer not to pay the cheek.

This was an action by the Pennsylvania Academy of Pine Arts v. The County of Philadelphia, to recover back certain taxes, county rates and levies, assessed for the year 1852, on the building on Chestnut street, Philadelphia, owned by the said corporation and occupied by it for the exhibition of its works of art, &c. On the part of the plaintiff, it was claimed that the said building was exempt from taxation under the 29th section of the Act of 16th April, 1838, which is as…

Appeal of William Whitney from the decree of the Court of Common 'Pleas, Philadelphia, dismissing his petition for a citation to James Whitaker to settle his account as trustee of the estate of A. W. Adams & Co. Andrew W. Adams and fleo.

This was an action of assumpsit by Charles H. Eckstein and William W. Siegfried, copartners, &c., v. James Clark, on a promissory note of which John Gr. Michener was drawer,' and which was endorsed by James Clark. The note purported to be dated January 22, 1851, and was at four mouths, for $556. The pleas were non assumpsit and payment.

Andrew M. Quain, the decedent, died in August, 1850, without issue, leaving a widow and two brothers, viz.: Margaret Quain the appellant, William S. and Robert M. Quain. Letters of administration were granted to the widow and her brothers, who filed their account thereof. The account was referred to an auditor to adjust, and make distribution of the balance.

<p>1. By the 6th section of the Act of 15th March, 1832, relating to registers, no administration granted out of this Commonwealth confers upon the person the authorities of an administrator under letters 'granted within this state.</p> <p>2. Although the personal property of the decedent is distributable according to the law of the domicil, yet comity does not require that the distribution be made in the country of the domicil; but, on the contrary, the distribution of the fund may be made by the tribunals of the country' under whose authority it was collected; and such distribution need not be confined to creditors, but, in the absence of creditors, may embrace legatees, or next of kin entitled to portions of the fund, and presenting their claims.</p> <p>3. The Orphans' Court of the county in this Commonwealth wherein letters of administration on the estate of one whose domicil at death was in the District of Columbia, was not bound to order the assets collected in this state to be transmitted to the administrator of the domicil by whom the fund in dispute was claimed, but had the power to direct distribution not only amongst creditors of the decedent, but, in their absence, to legatees or next of kin entitled to distribution and submitting their claims.</p> <p>4. The claims of citizens of Pennsylvania are not alone to be protected by such Court, but the claims of citizens of either of the other states or territories may be submitted and allowed, and the residuum alone, after final account, is to be transmitted to the administrator of the domicil.</p> <p>5. Such distribution is not a question of jurisdiction but of judicial discretion.</p> <p>6. The expenses of, collecting the fund depend on the local law and usages, and should be settled by the Court under whose authority they were incurred.</p> <p>7. If the administrator of the domicil, acting as agent of the local administrator, has rendered services for which he is entitled to compensation, or, before the local administrator was appointed the former has rendered services which are an equitable charge upon the fund in Court, he may be permitted to present his claim to the local administrator for adjustment and allowance.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit by S. R. Keemle and II. E. Atkins, in business as Atkins & Co., for the use of John Beal and P. McArthur & Co., v. The Baltimore and Philadelphia Steamboat Company.</p> <p>The material question in the case was, whether the plaintiffs, Atkins & Co., had such an interest in the subject-matter of the suit, as entitled them to bring, the action m their own names, for their own use, and to the use of the owners of the goods having distinct claims.</p> <p>The legal plaintiffs, Atkins & Co., were in the forwarding business, their place of business being in Philadelphia. The owners of the goods, named as equitable plaintiffs, were merchants in Cincinnati, but not connected with each other in business or in the ownership of the goods in question. The defendants ran a line of barges and steamboats between Philadelphia and Baltimore.</p> <p>In the first count of the declaration it was alleged that the plaintiffs, Atkins & Co., at defendants’ special instance and request, caused to be delivered to the defendants, divers goods and merchandise, viz.: 2 boxes, marked, &e., to be carried by the defendants to the city of Baltimore, and to be delivered to the Cumberland Railroad Company at Baltimore. The breach alleged -was non-delivery.</p> <p>The second count was for the same subject-matter, counting against the defendants as common carriers. Negligence was alleged.</p> <p>The plea was non assumpsit, payment, and set-off, with leave, &c.</p> <p>The goods in question were received in Philadelphia, on 7th February, 1851, from the New Jersey Transportation Company, who carried between New York and Philadelphia, by Atkins & Co., who sent them to the wharf of the defendants, and got a receipt, by which it was acknowledged that the goods were received of Atkins & Co., and defendants, by their agent, promised to deliver them in good order to Cumberland Railroad .at Baltimore, to forward to Messrs. McKaig & Agnew, Cumberland. In the receipt dangers of the sea, fire, leakage, breakage, and the acts of Grod, were excepted.</p> <p>It appeared that the plaintiffs paid the freight on the goods in question from New York to Philadelphia, and that the defendants would have been paid their freight by the Baltimore Railroad Company at Baltimore, who would have collected it again at Cumberland from McKaig & Agnew, the agents of the plaintiffs for conveyance from Cumberland to Pittsburgh. The plaintiffs had ' no interest in the goods beyGnd transporting them. It was the practice of the plaintiffs to collect the freight at Pittsburgh from the captain of the steamboat to whom goods were delivered for conveyance down the Ohio, which are repaid by the owners of the goods on delivery.</p> <p>The goods were addressed to the respective vendees at Cincinnati, and thus addressed were severally delivered by the respective vendors to the New Jersey Transportation Company at New York; marked to be forwarded by “ O’Connor’s five day line;” this mark having reference to the general line of transportation west of Philadelphia.</p> <p>On the 7th of February, 1851, the defendants despatched the goods in a steam propeller, to be conveyed via the Chesapeake and Delaware Canal. On the passage down the Delaware, the steamboat encountered large quantities of floating ice, and when a few miles below New Castle, her progress was arrested. The action of the waves caused the ice to operate against its hull, openings were made in the sides, and it filled with water and sunk. The defence set up at the trial was two-fold: 1st, That the damage was the result of inevitable accident; and 2d, That it happened by reason of the perils of the navigation. It was further contended, that the plaintiffs, being mere transportation agents, had not sufficient interest in the goods to maintain the action; and that they could not in one action sue for the damage done to the goods of different parties, having no common interest.</p> <p>The judge charged the jury that the plaintiffs could maintain the action in their own name, and left the case to them on the question of negligence.</p> <p>Verdict was rendered for the plaintiffs for $>3651, the whole amount of the claim.</p> <p>It was assigned for error: 1. That the Court erred in charging that the plaintiffs had a sufficient property in the goods to maintain the action; 2. It was alleged that the plaintiffs could not recover in one action' for the goods belonging to the several .parties for whose use the action was brought, who had not a common interest in the property.</p>