Volume 23 — Pennsylvania State Reports

<p>Appeal from the decree of the Orphans’ Court of Philadelphia, in relation to the distribution of the estate of Mrs. Matilda W. Smith. She died in 1848, leaving ten children surviving her, and leaving a will, of which the following is the material clause:—</p> <p>“ I will and bequeath all my property, real and personal, to my children (except my daughter Letitia, who is otherwise amply provided for), to be equally divided among them. In case of the death of any of my children without issue, his, her, or their portion or portions to be equally divided among the survivors. I hereby appoint my sons William, Harrison, and John my executors, and request them to dispose of my estate as above directed.”</p> <p>Her son John died in 1849 without issue, and leaving the appellant, his widow, who administered upon his estate. The amount for distribution is $53,881, consisting of proceeds of personal property, and income of the real estate. The claim of John’s widow to a share in the distribution was rejected, and hence this appeal.</p>

<p>1. Until the jury in a capital ease are sworn, they may be discharged by the Court and the case continued.</p> <p>2. A criminal trial does not begin till the jury is empannelled and sworn; and the party charged is not in jeopardy till that time.</p> <p>3. On an indictment for murder, eleven jurors were empannelled, when, the panel being exhausted, a tales was awarded. After its return, the Commonwealth’s counsel challenged for cause the tenth juror empannelled, and the juror was discharged, the prisoner’s counsel objecting. Another juror was then called, in whose selection the prisoner declined to participate. He was empannelled; but before another juror was called or any of the jurors were sworn, on motion of the Commonwealth’s counsel the jurors empannelled were discharged and the case continued. At the next term the prisoner was arraigned, and judgment being given against him on his special pleas to the former proceeding, he refusing to plead further, the plea of not guilty was entered by direction of the Court, and he was convicted of murder in the second degree. Held, that he had not been in jeopardy in thefirst proceeding.</p> <p>4. A challenge may be made on the part of the Commonwealth at any time before the oath is tendered to the juror; and the mere passing of the juror by the District Attorney over to the party charged or his counsel is no waiver of the right of challenge on the part of the Commonwealth.</p> <p>5. Though a juror challenged for defect of religious belief may be heard by the Court in reply, yet it is not a ground of error that he was not so heard, it not appearing that he offered to testify.</p> <p>6. It is a good cause of challenge to a juror that when on a jury in another case at the same term, he said he was “ a Tom Paine man, and would as lief swear on a spelling book as on a Bibleand that on a former occasion while a member of the panel of jurors, he had said that he had tried to acquit any one the judge desired to have convicted.</p>

<p>1. An action of debt by a landlord against a tenant for rent,being founded upon the actual enjoyment of the premises, an assignment by the lessee to another, -with the assent of the landlord, would be a defence in such an action ; but where the action is not founded on the privity of estate but on the lease itself and the covenants qr promises contained in it, an assignment of the term by the lessee even with the assent of the landlord does not discharge the lessee from his express contract to pay rent, even though the landlord received some rent from the assignee, no discharge of the lessees from their contract appearing.</p> <p>2. Whether the landlord in an action of assumpsit against his lessees under a written lease, wherein the rent was payable quarterly, could recover rent for a fractional part of a quarter averred in the statement to be due on the day on which the possession was delivered to new tenants (who were recognised by the landlord,) and not denied in the affidavit of defence, notwithstanding which the Court below entered judgment for the plaintiff, was not decided by this Court.</p>

<p>1. 'Where an agent receives money and gives due notice to his principal, he cannot be sued for it without a previous demand, as he is in no default; but if he neglects to give notice of its receipt, an action lies without a previous demand.</p> <p>2. Brokers received a draft for collection, and after a reasonable time for its collection had elapsed, a suit was brought against them for the amount of the draft. Held, that a demand previous to instituting suit was not necessary.</p>

This was a proceeding by writ of foreign attachment, issued on 28th December, 1850, by W. Malone and E. Buckman v. Edward Lindsley. The writ was served on Henry Oroskey of Philadelphia, as garnishee. The defendant appeared d. l>. e. to the writ. On 4th March, 1851, he obtained a rule to show cause why the writ should not be quashed, on the ground that he was a resident and inhabitant of the state of Pennsylvania when the writ issued.

Appeal by William Faries, administrator of the estate of his deceased wife’Elizabeth, from the decree of the Orphans’ Court of Philadelphia making distribution of the estate in his hands.

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of assumpsit, in which Andrew, Thomas, and James Manderson, executors of the will of Peter Browne, deceased, were plaintiffs, and Charles Lukens was defendant. The following facts were agreed upon, and stated for the opinion of the Court.</p> <p>John C. Browne, late of the county of Philadelphia, being seised of the real estate in question, made his last will and testament, dated on the 22d day of September, 1819, and the codicils thereto dated March 2, 1825, and August 4, 1832, made a part of this case.</p> <p>He thereby devised the use, income, and profits of all his estate, real and personal, to his wife Hannah Browne, during her natural life, provided that she should so long remain his widow; but if she should marry, she should only Have what the law would allow her out of his estate.</p> <p>That upon her death, or intermarriage, he directed his estate to be equally divided between all his children, “ which may then be alive, or who may have left legitimate heirs, share and share alike,” &c.</p> <p>The said John .0- Browne died seised of said estate, leaving a wfidow, the said Hannah, and issue, three children, two of whom afterwards died without issue, leaving Peter Browne the survivor of the three children, to whom and his heirs, his mother, Hannah Browne, afterwards, viz. on the 30th day of August, 1837, by indenture of that date, sold and conveyed all her interest in said estate under the said will; afterwards the said survivor Peter Browne, by his will dated January 16, 1840, made part of this case stated, authorized his executors therein named to sell and convey all or any part of his estate; and he afterwards died seised of that estate, leaving issue one child. Under this power the executors, by indenture dated the 22d day of December, 1840, sold and convoyed to the plaintiffs all the estate or interest in a lot or piece of ground of which the said Peter Browne so died seised.</p> <p>Afterwards, viz. on the 1st day of February, 1853, the plaintiffs in writing made part of this case, agreed to sell, and the defendant agreed to buy, the whole of said lot of ground before referred to. The plaintiffs tendered to the defendant a deed for said premises, and demanded payment in accordance with the agreement; but the defendant refused to comply, alleging that the plaintiff could not convey to him a good and sufficient title in fee simple to said premises.</p> <p>If under the above facts the Court should be of the opinion that the plaintiffs had a right to sell and convey an indefeasible estate in fee simple in said premises, then judgment to be entered for the plaintiffs, damages to be settled by counsel; but if in the opinion of the Court they had not a right to sell and convey such a title, then judgment to be entered for the defendant, with the right in either party to bring a writ of error.</p>

<p>The decision of the Surveyor of the City- of Philadelphia directing the removal of a party-wall is conclusive, no appeal therefrom lying to the Common Pleas; and under the Act of 5th April, 1849, tho Common Pleas may cause the wall to he forthwith removed.</p>

This was an appeal by Nancy Nolen, from a decree of distribution of the balance of her account, as administratrix of the estate of Spencer Nolen, her late husband. An auditor had been appointed to report distribution, and a claim of the accountant herself for $1610 was submitted to the auditor.

<p>1. Where land is devised at a valuation or a price to be paid by the devisee, the title passes subject to the charge or lien for the price, if the devise be accepted.</p> <p>2. Where the devisee’s title to the land is sold at sheriff’s sale, and in all the proceedings the title is described as taken and sold subject to the unpaid valuation charged upon it, the sheriff’s vendee takes the land so charged.</p> <p>3. If after this there should be funds in the hands of the executors of the said testator, and the said devisee’s share thereof should be sufficient to pay the charge on the land thus devised, this would not of itself operate as an extinguishment of the charge, for that would be the application of the devisee’s funds in order to discharge the duty of the sheriff’s vendee.</p> <p>4. When afterwards the title of the sheriff’s vendee is sold at sheriff’s sale subject to the same charge, the second vendee takes the title thus burdened.</p> <p>5. A petition of the executor of the will by which the charge was made having been presented to the Orphans' Court, in pursuance of the 59th section of the Act of 24th February, 1834, relating to executors and administrators, this Court decreed that the said second purchaser pay to the said executor the valuation money, with interest and costs, within a time designated ; and in default thereof, the payment to be enforced by a writ of levari facias against the land charged.</p>

<p>1. Au investment by a guardian or other trustee, unless authorized by the deed of trust or by law, in the stock of an incorporated company, is at his own risk, even though persons generally considered men of prudence have made similar investments.</p> <p>2. Though a guardian who made an unauthorized investment in stock may be relieved by the adoption of his act by the party interested if competent to act in the matter, yet a guardian who had invested in the stock of the Schuylkill Navigation Company, which subsequently depreciated, and in other canal and bank stock, was not relieved from responsibility by the mere enumeration or recital of such stocks in a deed of settlement made, in contemplation of the marriage of the minor ward, by the intended husband and the ward to a trustee for the use of the ward, it not appearing that the trustee then knew when or by whom the stocks were purchased, and no account of the guardian being then filed, and which, when filed, was immediately excepted to.</p> <p>3. The guardian is not entitled to be allowed fees paid by him to counsel employed in sustaining his claim to allowance for such depreciated stock.</p> <p>4. The commissions of the guardian upon the sums received should be deducted at the time the money is received by him, and .interest is chargeable only on the residue.</p> <p>5. Ordinarily, six months is allowed to make investments.</p> <p>6. A guardian is chargeable with interest on the balance due by him during the proceeding on his account under exceptions filed at his instance.</p>

<p>1. Though it was provided in a policy of fire insurance that the conditions annexed were “to be used and resorted to to explain the rights and obligations of the parties” in cases not specially provided for; yet in an action by the assured on such a policy it was Held that the assured might show tho knowledge of the agents of the insurance company of the character of the property; that the description was as prepared by such agent; and'that the omissions in the policy complained of by the Company were made by him because he considered them immaterial; therefore the validity of the policy did not depend on the completeness of the written description.</p> <p>2. One of the questions propounded to the applicant for insurance on a woollen factory was what kind of lamps are used and are they all covered: if any open lights are used state in what rooms: Held, that this question referred to the lamps which were habitually used and not to the hand-lamp used to light up with.</p> <p>3. One of the inquiries made was whether the property proposed for insurance was mortgaged; and if so, the amount. In the reply the encumbrances by ground-rent and mortgage were stated. Afterwards another mortgage was executed .and an existing policy was assigned as collateral security for it: Ileld, that tho execution of the second mortgage, -without notice to tho Company, did not avoid the policy.</p>

<p>1. By the Act of 10th April, 1848 (Acts 449), exclusive jurisdiction is conferred upon the District Court, Philadelphia, of a claim for materials existing against several buildings and apportioned among them, notwithstanding the apportioned claims are severally less than the sum to which the jurisdiction of the said Court is limited — the whole claim being within the jurisdiction of the said Court.</p> <p>2. The Common Pleas having no jurisdiction of such claim, it was properly stricken from the record.</p>

<p>Error, to the District Court, Philadelphia.</p> <p>This was an action of assumpsit by Samuel E. Dale and Elizabeth Jane Dale against John Gr. Michener, to recover the value of 109J ounces of gold dust, and some coin, the latter amounting to about $22.60.</p> <p>The plaintiffs claimed by virtue of an alleged donatio causa mortis, made by their brother James E. Dale, who died on board the steamer Panama, at sea, in the Pacific Ocean, in August, 1850. He had been a sailor, but leaving that employment he went to California and worked as a miner. He died on his voyage from San Francisco to Panama. Immediately before his death, he had in his possession the gold dust and coin. These were afterwards delivered to the Consul at Panama, by whom the gold dust was converted into money, and remittance made to' Michener, the defendant, who, at the instance of the father of Dale, had received letters of administration, at Philadelphia, on the estate of the deceased. The amount received was claimed by the plaintiffs, who were the brother and sister of the decedent.</p> <p>It was said that the gold dust and coin were the whole estate of Dale except his clothing, at the time of his death.</p> <p>On the trial, it ajopeared from the deposition of M. Lent, the purser of the steamer Panama, that James E. Dale, about six hours before his death, sent for Lent to see him. Lent went to him. He was in the steerage of the boat, with a man who appeared to be a sailor, also a steerage passenger. Dale was sick with cholera, and the man was attending to him. Dale had in his hands, loose, some coin, and a bag of gold dust tied up. He told the sailor to give the bag and coin to Lent, which he did. “ In answer to questions put to him by” Lent, “ he said his name was James E. Dale ; that he was twenty-six years of age; that he was not married.” Lent “ asked him, who he wanted to have his effects ? He said, his sister and brother.” Lent “asked him where they lived? he replied, in Philadelphia; and that was all he said.” In answer to subsequent interrogatories, he said, “ the gold dust and coin was given to me in the presence of James E. Dale, and at his request, and he wished his Irother and sister to have it;" and “James E. Dale did not inform me that he had any property, otherwise than by directing the sailor to deliver to me the bag of gold dust and coin, and by saying, that he wished it to go to his Irother and sister.”</p> <p>By the same deposition it appeared that Dale died about six hours after the said conversation, of the cholera, with which he was then suffering.,</p> <p>It was also testified by a witness that he gave to the said James E. Dale about fourteen ounces of gold dust, to bring to the witness’s family in Philadelphia. It appeared that a suit had been brought against the defendant as administrator, for the value of the said 14-J ounces of gold dust.</p> <p>On the part of the defendant points were submitted.</p> <p>The judge, inter alia, charged that if the jury found that Dale was dangerously ill, and believed he was about to die, and then expressed his desire that the gold dust and coin should become the property of his brother and sister in the event of his death, and that the same was delivered to Lent to be delivered by him to them, and that his intention was that this property and no more should be given to his brother and sister; and that Dale died within a few hours after, of the sickness with which he was then suffering, in such event the plaintiff could recover the amount received by the defendant.</p> <p>But, that, if the jury found that when the gold dust and coin were put into the hands of Lent, by direction of Dale, the intention of the latter was, that all his effects whatever they might be, and not merely the gold dust and coin, should become the property of the plaintiffs, then the verdict should be for the defendant.</p> <p>The third point submitted was, that if the proceeds of the gold dust received by the defendant was the whole of Dale’s estate, he could not dispose of it by a gift which would take effect as a donatio causa mortis. As to this point, the judge charged that it was correct, but that he reserved the point.</p> <p>Verdict was rendered for the plaintiffs.</p> <p>A number of specifications of error was made; the first three were to the admission of the testimony of Lent; the fourth was to the charge; the fifth was to leaving it to the jury to determine the meaning of the words used by Dale, which were alleged to constitute the donatio causa mortis. 6. In leaving it to the jury to determine his intention. 7. That if the plaintiff's were entitled to the proceeds of the gold dust, their remedy was several and not joint. 8. That the evidence was not sufficient to establish a donatio causa mortis. 9. That if the gold dust was the principal part of Dale’s property, he could not dispose of it in the manner in question. 10. That a donatio causa mortis is subject to the debts of the deceased; and if it be necessary to pay the debts, the administrator was entitled to retain the proceeds for that purpose. 11. iThat being liable for debts, the administrator is entitled to retain it until all claims are ascertained and settled. 12. If there was in this case, a gift of the gold dust, the remedy of the plaintiffs was for the balance after settlement of the administrator’s accounts. 13. That the plaintiffs could not recover in this action. 14. In reserving the third point charged upon. It was intimated in the argument that from the point being reserved the jury might have considered it doubtful.</p>

<p>Error to the District Court, Philadelphia.</p> <p>This was an action of covenant by The Philadelphia Life Insurance Company v. The American Life and Health Insurance Company, on a policy issued by the defendants on the 11th February, 1851, whereby they insured the life of Sarah Riddle for the sole use and benefit of the plaintiffs, in the sum of $2000 for the term of five years. Narr. filed on 21st December, 1852, and on the same day the defendants submitted four special pleas, and fifthly, the ple'a of set-off.</p> <p>In relation to the latter plea, it appeared that on the 24th February, 1851, the American Life and Health Insurance Company insured the life of Maxwell Nushaum for $2500, with the privilege to him of insurance for another year. On the 31st May, 1851, they obtained an insurance of $1000 of the risk from the Philadelphia Life Insurance Company, for the term of one year; but the time when the year was to begin or end was not stated. It was stated in the policy to be its intent and meaning that if the declaration made by the secretary of the American Insurance Company, on the faith of which this second insurance was made, was untrue, the policy was to be void. In the declaration by the said secretary it was declared that he believed Nusbaum’s age did not exceed thirty years, and that “ he is now in good health.”</p> <p>This declaration was dated on the 31st May, 1851.</p> <p>By a memorandum on the policy of the same date, signed by the secretary of the Philadelphia Company, it was agreed that in consideration of an extra premium of $30, included in the premium on this policy, the party insured had permission to go to California.</p> <p>It afterwards appeared that Nushaum was then dead, having lost his life in the fire which took place in California on the 4th or 5th May, 1851. The material question was whether the risk under the second insurance commenced from its date, or from the date of the first insurance. In the application of Nushaum for insurance, liis name was stated as Maxwell Nusbaum, merchant, Harrisburg, to California.</p> <p>In the proposal by the American Insurance Company, he was stated as going to California. At the time of the second insurance it was known to both companies that Nusbaum had left Philadelphia for California, but neither of them knew that he was then dead. His death was not known to them till some weeks after the second policy was made. The American Insurance Company then claimed the $1000 under the second insurance, as an off-set to the claim of the plaintiffs on account of the insurance of the life of Sarah Riddle. The secretary of the American Insurance Company was examined on part of the defendants, under objection, and stated that they had taken the risk on the life of Nusbaum, and that he inquired of the secretary of the other company if they would take half of it; or rather he offered him part of the risk on the policy. He agreed to take it, and a copy of Nusbaum’s application to the American was made out, and the plaintiffs issued to them a policy of $1000 of the $2500, and for which the company, which was defendant, paid to the plaintiffs two-fifths of the whole premium received from Nusbaum. He said that no objection was made to the date of the plaintiff’s policy to the defendants.</p> <p>The jury found for plaintiffs $2053.38; and under the plea of set-off, they found for the defendants $1095, subject to the opinion of the Court, and afterwards judgment was entered for the plain tiffs for $958.33.</p> <p>The material assignment was the instruction to find for defendant under the plea of set-off.</p>

<p>Error, to the District Court, Philadelphia.</p> <p>This was a feigned issue between Wharton Chancellor as plaintiff, and James Schott defendant. See a report of the case when up on a former occasion in 8 Harris 195, &c.</p> <p>James Schott, under a judgment in his favor against Henry Chancellor entered in October, 1845, had a levy made on certain household furniture in the possession of Henry Chancellor at his residence. The property was claimed by Wharton Chancellor by purchase at a previous sheriff’s sale, under a judgment in his favor against the said Henry Chancellor, entered October 18, 1845, for $8820. This issue was directed to try the right of the said Wharton Chancellor to the property levied upon. On the former trial it appeared that the sheriff had returned on the writ of Wharton Chancellor a sale, in October, 1845, of the defendant’s household furniture, to the amount of $2694.80. The purchase was for the plaintiff in the writ. No credit was, however, given by the plaintiff, on the docket, for the amount. The property remained in the possession of Henry Chancellor.</p> <p>Hannah Chancellor, the mother of Henry, by her will dated in 1848, but proved in 1847, devised the third part of her estate to trustees in trust, inter alia, to pay to Wharton Chancellor all moneys which at her death were due to him by Henry, and the balance of her personal estate was to be put at interest, and the interest thereof and the rents of her real estate were to be paid to Henry Chancellor, without being liable for his debts.</p> <p>It was testified by one of the trustees that the share of the personal estate of the testatrix so devised, exceeded $25,000. Also that he paid to the agent of Wharton Chancellor $7500; on which occasion a receipt was produced, signed by W. Chancellor, for $10,850.70. The agent of W. Chancellor claimed but $7500, which was paid to him; and the residue was paid to Henry Chancellor. A portion of the said balance was expended in repairing the trust property, and the witness knew when he paid it, that it was to be so expended. In the receipt, dated November 23, or 29, 1847, were stated loans of $500 on 29th September, 1842; of $3500 on October 29,1842; and of $3500 on November 11,1842; in all to the amount of $7500, which with interest added were stated to amount to $10,850.70.</p> <p>The answer of Wharton Chancellor to a bill of discovery was read on the part of the defendant. In it, it was stated that on the 18th October, 1845 (the date of the entry of the judgment in his favor against Henry Chancellor), he was a creditor of the latter to a large amount. On the 9th April, 1839, he loaned him $500, with interest, amounting on 18th October, 1845, to $695. On 29th September, 1842, he loaned him $500, with interest, amounting at the same date to $591.67; and on the 29th October and 11th November, 1842, he loaned him two sums of $3500 each, amounting with interest to $8243.08. That these loans were intended for the temporary accommodation of Henry Chancellor. He stated that besides these loans, he had advanced to his brother Henry various sums of money. That, at the time of the advances, nothing was said or agreed upon as to the return of the money, as it never occurred to him that Henry would be able to return it— but that he considered these advances were, in legal contemplation, loans.</p> <p>He further stated that after the amount realized by the sheriff’s sale was deducted, there remained due to him on the loans before stated the sum of $6869.57, which, with interest due thereon, amounted, on 20th November, 1847, to $7708.19. That, in addition thereto, he advanced to Henry, in September, 1844, $300; and in 1845, ’46, ’47, and ’48, various sums exceeding in all $7400 — which were unpaid. That he had determined to receive under the will of his mother but $7500, which was all he did receive from the trustees. He denied that the judgment was designed as a mere security until he could receive payment out of the estate of his mother, but alleged that the sheriff’s sale and purchase was considered by him an absolute extinguishment of so much of the indebtedness, and that he had no intention that Henry should again acquire an ownership in the said property.</p> <p>He further said that, as he had settled in his own mind the sum he intended to receive from the trustees, he did not examine the statement of the account nor the receipt. Also that the judgment was not thought of at the settlement, and that the amount received by him did not discharge his entire claim even after deducting the •amount realized by the sheriff’s sale.</p> <p>It was contended on the part of Wharton Chancellor, that if, after deducting the amount of the levy, a greater sum was due to him, at the time of the payment by the trustees, than was actually paid him, his title to the property sold was not affected by such payment.</p> <p>The judge, inter alia, charged the jury to inquire, — 1. What was the debt for which the judgment was confessed ? Upon that point they had the record. The judgment was entered merely on a warrant of attorney; and that there was evidence in the answer that there were other debts. But he observed that the judgments included at least two of the items composing the $7500. The jury were to inquire what was the debt at the time of the entry of the judgment. 2. Was the judgment paid in full ? The receipt was for $10,850.70, and for that sum the trustees took credit in their account. If the plaintiff chose to take of that sum but $7500, that could not alter the legal nature of the transaction. 3. That jf the jury believed that the settlement between the trustees and Wharton Chancellor, to which Henry was a party, covered or included the whole debt for which the judgment was confessed, without allowing credit for the sum of $2694.80 (the amount of the sale), their verdict must be for the defendant; and he refused to instruct them as requested on part of the plaintiff, that if more was due to Wharton Chancellor, on any account, after deducting the amount of the levy, than was receipted for, his title was not affected by the receipt; or, secondly, if more was due on any account, by Henry Chancellor, than the plaintiff actually receipted for, or than he authorized any one to receive, his title is not affected.</p> <p>Yerdiet was rendered for the defendant.</p> <p>Error was assigned to the refusal to charge as requested.</p>

This was an action on the case by S. N. Chittenden & Gr. Johnson v. The New York Union Mutual Insurance Company, to recover for an alleged insurance on two wooden buildings in Carbondale, Which were burned on 25th March, 1852. The defendants were incorporated in New York, and had their office in Johnstown.

These were two actions of assumpsit, one by Caldwell & Co., and the other by Wright & Co., v. Lincoln & Reynolds, as Lincoln & Co. The declarations contained counts for money lent, money paid, for work and labor and materials, for goods sold and delivered, &c. The general issue was pleaded with leave, &c. The plaintiffs owned furnishing houses; Caldwell & Co. being jewellers and silversmiths, and Wright & Co. being dealers in china ware and table furniture; and the suits…

<p>1. If the slanderous words alleged contain a charge of fornication, no colloquium is necessary to be averred.</p> <p>2. The charge of fornication involved in the words “ she is a loose character, a bad character,” may be sufficiently averred by an innuendo without a colloquium. Such words involve the charge of fornication.</p>

<p>1. Advancement is a question of intention; that which was a gift at first cannot subsequently become an advancement.</p> <p>2. Where a father having five children, and being worth about $25,000, quitting the lumber business gave to his two sons his remaining- stock and some other property and money, amounting in all to about $5000, and also the use of his lumber-yard, for which no lease was made or any covenant or agreement to pay rent; and. in speaking of the matter, he said “he had given this to the hoys —that “ he had presented them with it,” &c.; and in relation to the lumber-yard, he said that they were to pay the taxes on it as an equivalent for rent. He had also made presents to his three married daughters, that to the exceptant, on her marriage, amounting to about $1100: Held, that these provisions to the sons were^to be considered as advancements, and that they wei-e not bound to pay rent for the yard.</p> <p>3. Though the 48th section of the Act of 29th March, 1832, relating to Orphans’ Courts, forbids the wife’s distributive share of the proceeds of real estate to be paid to her husband without security, yet where the payment was made to the wife, and her husband joined with her in the receipt without objection on her part, it was Held that she was not entitled to charge the estate with the money so paid to her.</p>

This was an action on the ease, by R. T. Evans v. R. C. See and C. Remington, brought on 10th September, 1852. The writ was served on See only. It was brought to recover $380.83, portion of the purchase-money of a house and lot on Market street, Philadelphia, sold by Evans to them on the 17th October, 1835. The lot was subject to a ground-rent of $30 per annum. The rent was paid till 1820, but was in arrear from 1820 till 1835.

<p>1. Tlie exemption of goods by the Act of 1849 from sale on execution may be waived by the debtor.</p> <p>2. Where at the time of contracting a debt the exemption was waived, it was Held to be binding though the sale was objected to by the debtor when it was about to be made.</p>

In the account of the administrators with the will annexed of Catharine Ritter, deceased, credit was claimed for $348, paid to Abraham Klinker, for boarding Catharine Ritter from March, 1833, till April, 1840, with the exception of about one year during that period, when she boarded elsewhere. The receipt of Klinker for the amount in question was dated June 21,1852.

<p>Appeal from the decree of the Common Pleas of Bucks county.</p> <p>This was an appeal from a decree of distribution of proceeds of sheriff’s sale of the personal property of John M. Wilson. A. M. Magill leased to Wilson certain premises for one year, commencing on 1st April, 1853. The rent was to be $250 for the year, payable quarterly in advance. The first quarter’s rent, due on 1st April, was paid when possession was taken. Under Purdy’s execution a levy was made on 9th June. The writ was returnable to September Term. The property ivas sold in June. After the sale, but before the return-day of the writ, the landlord gave notice to the sheriff that he claimed one quarter’s rent (viz. the quarter’s rent payable in advance on 1st of July), out of the proceeds of sale. The money was considered in Court.</p> <p>Smyser, J., referring to the case of Anderson’s Appeal, 8 Barr 218, relative to the lease of the Bedford Springs, directed that the landlord take $48.08 out of the money in Court, on account of the rent of the second quarter, and that the residue after taking out the costs of this proceeding be paid to the execution-creditor.</p> <p>Error was assigned to the decree that the landlord take the amount of rent for two months and nine days, out ¡of the money in Court.</p>

This was an action of partition by John D. Longwell v. Bethuel Bentley, for partition of a tract of land containing about 54 acres and 106 perches. The summons was issued 8th April, 1850. The plea was non tenet insimul. The case was tried in September, 1853. On the trial, evidence was given on part of the plaintiff, to show that Alvin, Bacon lived on the land in 1804, and died in possession of it in 1813. Also a deed to him by Charles Pleasants and others in March, 1809.

This was an action of ejectment to September Term, 1851, by Mary Heffner (formerly Mary Swartley) v. Jacob Heffner and another. Both parties claimed under Philip Swartley. He was the father of the plaintiff, and purchased the property for her in 1826 for the sum of $700. She paid $200, and Philip) Swartley charged the balance, $500, to her in his book of advancements, and it was taken out of her share of his estate after his death.

This was an action of trespass on the case, commenced on 11th Nov. 1851, by Joseph Headley against S. H. Wallace. In the declaration it was alleged that the defendant had maintained certain dams across a brook, commonly called Yanakon Creek, and by means thereof caused the water of the brook at different times to overflow the plaintiffs’ land, whereby it had been injured.

<p>Error to the Common Pleas of Bucles county.</p> <p>This was an amicable scire facias sur mortgage, entered in the Common Pleas of Bucks, wherein Samuel Hutchinson was plaintiff, and James Terry and Peter Uhler, terre tenant, defendants. The case was put at issue on the plea of payment with leave, &c. It was tried at September Term, 1853, and verdict rendered for the plaintiff.</p> <p>The action was founded on a mortgage given by James Terry to Hutchinson, on certain real estate in Bucks county, to secure the payment of $200. It was dated and acknowledged on the 14th of July, 1847; and recorded in the recorder’s office of Bucks county, on February 8th, 1848. The acknowledgment purported to have been taken in New Jersey, before one of the commissioners of the county of Mercer.</p> <p>Subsequent to the recording of the mortgage, to wit, on the 2d of February, 1850, Peter Uhler obtained a judgment for $46.50 against James Terry, in the Common Pleas of Bucks, on a transcript from a justice of the peace. A fi. fa. on this judgment was issued to April Term, 1851; and the sheriff levied on the real estate of Terry, which was so mortgaged to Hutchinson. Yen. exp. was issued to September Term, 1851, under which writ the sheriff returned that on the 8th of September, 1851, he sold the land in the writ named to Peter Uhler, who was the plaintiff in the execution. Uhler paid the purchase-money, receiyed his deed from the sheriff, and took possession of the premises. This amicable action was then instituted to determine whether the premises were bound by the mortgage in the hands of Uhler, the purchaser at the sheriff’s sale; and on the trial of the case the foregoing facts were pro5ren. The plaintiff also called witnesses to prove that Uhler and his attorney had actual or constructive notice of the mortgage before the sale.</p> <p>On the part of the defendant evidence was given with the Ariew of disproving notice.</p> <p>On the part of the defendant the Court was requested in writing to charge, That the judgment of Uhler was a lien prior in point of time to the mortgage of the plaintiff; and that the sale by the sheriff, under the judgment, discharged the land from any lien of the mortgage.</p> <p>The Court was also verbally requested to charge the jury on the following points:</p> <p>1. That the mortgage was not acknowledged as the laws of Pennsylvania required.</p> <p>2. That the record of the mortgage, under such defective acknowledgment, was no notice to Uhler, either as a creditor or purchaser ; and that a knowledge of the mortgage on the part of Uhler or his attorney, derived from seeing it on record, would not affect him with notice.</p> <p>8. That notice to affect Uhler must have been given to him before he obtained his judgment.</p> <p>Smyser, J., charged that the acknowledgment of the mortgage was defective, it not appearing to have been made before a commissioner appointed by the Governor of Pennsylvania to take acknowledgment of deeds; and that it was not legally recorded.</p> <p>On the authority of Solms v. McCullough, 5 Barr 473, he charged that if Uhler bought the land at the sheriff’s sale with notice of the unrecorded mortgage, the land in his possession was liable for the mortgage debt.</p> <p>Error was assigned to the portion of the charge last referred to; 2d, That the Court erred in refusing to charge as was requested in writing.</p>

On the petition of James and Samuel McClenaghan, grandsons of Samuel Whiteside, deceased, a citation was awarded in January, 1858, to Samuel Whiteside, -Jr., executor and devisee of the land charged, to show cause why the Court should not decree payment of a legacy out of land devised to him by his father.

Error, to the Common Pleas of Bucles county. This was an action of ejectment by Elizabeth Pearson, a claughter of Joseph Wilkinson, deceased, v. Joseph P. Wilkinson and James M. Wilkinson, to recover the undivided third part of 117 acres 151 perches of land in Bucks county.

This was an action of ejectment brought in August, 1849, in which William Wood was plaintiff, and Robert Wright defendant, to recover the whole of a tract of 164. acres of land situate in Bristol township, Bucks county. The plaintiff claimed under deeds from children of Jane Yanschuyver, executed respectively in October, 1846, in. December, 1846, and on 3d January, 1847.

<p>1. A tenant, generally, cannot dispute the title of his landlord, nor can he purchase an outstanding title and under it withhold the possession from his landlord; but when he becomes the owner of the title under which his landlord claims, either by purchase from the landlord or at sheriff's sale under a judgment which encumbers it, he may defend his possession.</p> <p>2. The tenant was not estopped from setting up his title as a purchaser at sheriff’s sale of the interest of the person under whom his landlord claimed, because he had made an ineffectual attempt to enforce a mortgage against the same land which was successfully resisted by the plaintiff who alleges it as an estoppel.</p>

<p>A bill of exchange was drawn on 3d July, 1850, in Philadelphia, blanks being left therein for the time the bill had to run before maturity and for the names of the payee and acceptor. The bill was sent to anjigent of the payors in London where it was negotiated. It was Held that it was to be presumed that the drawers intended the bill to be received as having been drawn in Philadelphia at the time of its date — that the party purchasing the hill in London was to be supposed as having in contemplation the law of Pennsylvania providing indemnity for dishonored bills — that the bill was therefore subject to the provision of the Act of 30th March, 1821, imposing damages at the rate of twenty per cent., and not to the Act of 13th May, 1850, which reduced the damages to ten per cent, on bills drawn after the 1st August, 1850.</p>

This was an appeal from the judgment of a justice of the peace, in an action by J. L. Day v. The County of Luzerne; which was brought to recover for service rendered as a surgeon in a post mortem examination held before an inquest convened by a justice of the peace. The proceeding had been approved of by the Court. The plea was non assumpsit.

This was an action on the case by George Kemmerer v. Charles Edelman and William Edelman, to recover damages done to the land and water-power of the plaintiff, by the swelling back of the water of Lehigh Creek, alleged by the plaintiff to have been occasioned by a dam erected in 1832, and which was continued by the defendants; but which was attributed by the defendants to other causes.

<p>Error to tbe Common Pleas of Delaware county.</p> <p>This was an action on the case by Richard Aspell against The Pennsylvania Railroad Company.</p> <p>It was alleged in the declaration that the plaintiff became a passenger in the cars of the Pennsylvania Railroad Company from 'Philadelphia-to Morgan’s-Corner; that the car was not stopped at the latter place so as to allow him to alight safely — that in attempting to alight, he was, by reason of the rapid motion of the cars, thrown upon the ground, and one of his feet injured.</p> <p>The plea was not guilty. Yerdict for plaintiff for $1500.</p> <p>The plaintiff took passage from Philadelphia for Morgan’s Corner in March, 1851, in the night line. Just before reaching the latter place, the state agent endeavored to give the usual signal to the engineer to stop, by pulling the bell-rope. The rope did not operate, though the speed of the train was checked by the engineer in order more safely to pass certain switches. The speed of the train increasing, other signals were made to the engineer to stop, but whilst the train was in motion the plaintiff leaped from the car, though warned by the conductor and brakesman not to do so, and informed that the train would be stopped and backed to the station. The plaintiff’s foot was injured.</p> <p>The Court below charged that the pulling the bell-rope and the announcement of Morgan’s Corner warned the plaintiff that he had arrived there, and was expected to prepare for leaving. That though he was warned not to jump, he could nevertheless recover for the injury received. That the agents of the company, in announcing to the passengers the place of arrival while the cars were in motion at the rate of from seven to ten miles an hour, did not exercise the degree of diligence and care which the law required. That the train should have been stopped, before such announcement as to the place was made.</p> <p>It was further charged that in this ease a contract existed, and the train should have been stopped. That the announcement of Morgan’s Corner caused the plaintiff, in going to the platform, to be in a position of danger, and although it was imprudent in the plaintiff to jump from the car, though warned of the danger, yet the agents of the company being in fault, the plaintiff could recover.</p> <p>It was further chai’ged that the imprudence of the plaintiff might be considered by the jury in fixing the damages.</p> <p>The portions of the charge referred to were assigned for error.</p>

This was an action by John Laporte v. E. M. Bishop, deceased. The plaintiff was a legatee under the will of Gilbert Chamberlain.

Error, to the Common Pleas of Susquehanna county. This was an action of debt by Asher Peck v. J. M. Chittenden and J. II. Wells, administrators of the estate of Charles II. Wells, deceased, who had been a partner with Sidney B. Wells under the name of Wells & Co. It was founded on an instrument of writing, in which it was stated that Wells & Co. had borrowed of Asher Peck $85, to be paid on demand with interest.

Error, to the Common Pleas of Lehigh county. This was an appeal from the judgment of a justice of the peace, in an action by George Meitzler v. George Breinig, brought to recover for clothing and materials for such, and for other articles sold to the defendant’s wife, who, at the time, was living separately from him. It was alleged on the one part, that she had left him with sufficient cause ; on his part, that she had not such cause.

<p>Error to the Common Pleas of Chester county.</p> <p>This was an amicable action entered into between George Chris-man, as plaintiff, and Lewis- L. Bachman, as defendant. The following facts were agreed upon : — •</p> <p>Joseph Carey died in 1842, intestate, leaving a widow, Lydia, and several children. After his death, part of his real estate was sold under order of Orphans’ Court for payment of debts, leaving three pieces of property unsold. In 1845, his widow intermarried with Levi Ganger. Whilst he was residing on a part of the property, George Chrisman, the plaintiff, on the 28th of September, 1848, recovered judgment against him on an award of arbitrators for $144.16. On October 10, 1849, an alias fi. fa. was issued on the judgment, and levy was made on the interest of Levi Ganger in the real estate of Carey. Such interest was condemned, and was sold by ven. exp. to the plaintiff, on the 25th December, 1849. Deed was executed on 30th January next following.</p> <p>On the 17th September, 1849, the widow' and heirs petitioned the Orphans’ Court for an order of partition or valuation; and partition was made into three parts, and appraisement of each made. The parties in interest refusing to take, turn portions of the property were sold on the 28th November, 1849, to Lewis L. Bachman, the defendant, who afterwards made the first payment on each property, and gave bonds and mortgage to the administrators for the residue of the purchase-money. The sale was confirmed on 28th January, 1850.</p> <p>Before the execution and delivery of the conveyance to the defendant, actual notice was given to him of the sheriff’s sale to the plaintiff of the right and interest of Levi Ganger.</p> <p>The question was, whether the plaintiff was entitled, by virtue of his purchase at sheriff’s sale, to the annual interest of one-third of the purchase-money of the real estate which had accrued since the 1st of April, 1850. If so entitled, then judgment to be rendered for him for $>86.70, being for two years’ interest.</p> <p>The decree of the Orphans’ Court was in the words of the Act of Assembly, ordering the interest of the widow’s share to be paid annually to her, &c., and at her death the principal sum to be paid to the heirs of Carey.</p> <p>October 31, 1853, the Court directed judgment for the plaintiff.</p> <p>Such judgment was assigned for error.</p>

<p>Error to the Common Pleas of Bucks county.</p> <p>This was an action of assumpsit by Rachel Little (who was widow of Thomas Little, deceased) v. Jacob Walton, administrator of the estate of Samuel Hartley, deceased, who was administrator of the estate of Thomas Little, deceased.</p> <p>Letters of administration were granted to Samuel Hartley upon the estate of Thomas Little, deceased, on the 15th of May, 1832. He died shortly after, and letters of administration on his estate were granted to Cyrus Hartley and Jacob Walton. These administrators filed an account of the administration of Thomas Hartley upon the estate of Thomas Little, showing a balance of $294.44, which was confirmed by the Orphans’ Court, April 23d, 1833.</p> <p>Letters of administration d. b. n. on the estate of Thomas Little were granted to Joseph Hough on the 9th of Sept., 1833 ; and on the 31st of December, 1833, the administrators of Hartley paid the above balance of $294.44, to Hough, the administrator d. b. n. Hough became insolvent, and he was discharged from the administration, January 23d, 1839, and letters granted to Samuel A. Smith, one of his sureties in the administration bond. Smith filed a settlement as administrator of Little, and charged himself with the proceeds of the sale of real estate, paid the debts of the deceased, and distributed the balance among Little’s heirs; but he did not charge himself with the amount of the personal estate received by Hough from Hartley’s administrators.</p> <p>The present suit was instituted the 14th day of May, 1850, by the widow of Little, to recover the one-third of the balance of the personal estate of her husband.</p> <p>On the trial of the case, the defendant’s counsel offered in evidence the receipt before mentioned from Hough, the administrator d. b. n., to Hartley’s administrators, dated the 31st of December, 1833, and also the settlement of Hough, showing the receipt of said balance by him.</p> <p>This was objected to by plaintiff’s counsel on the ground that the administrators d. b. n., at that time, and before the Act of 24th of February, 1834, which went into operation on the 31st of October of that year, had no right to receive the money under the law as it then existed, and that it was therefore a mispayment.</p> <p>The Court admitted the evidence, and exception was taken.</p> <p>Smyser, President Judge, charged that the Act of 24th February, 1834, gave to the administrator de bonis non the right to recover a balance in the hands of the former administrator; and that the administrator de bonis non was bound to distribute it amongst the creditors or heirs — that in this case the administrator de bonis non, having received the fund, and paid it over to his successor, the latter only, if any one, was liable to a suit by the plaintiff.</p> <p>He observed that this view of the law rendered it unnecessary to decide upon the plea of the statute of limitations, and, upon the objection, that the plaintiff did not make a legal demand for her share of the fund till after seven years from the death of her husband.</p> <p>February 10th, 1852, verdict for defendant.</p> <p>It was assigned for error that the court erred, — 1. In admitting in evidence the receipt from Hough, the administrator d. b. n., to the administrators of Hartley’s estate. 2. In charging that the plaintiff was not entitled to recover.</p>

This was an action of assumpsit, by Eliza Beaver and Henry Kauffman, administrators, &c., of John Beaver, deceased, v. Samuel ■Beaver, in which the plaintiffs claimed the one-half of an alleged loss of $557.02, on the sale of apples, in the purchase of which he alleged the decedent and the defendant were concerned; and also one-half of the interest on.the money invested therein. It appeared that the apples were purchased in the fall of 1847.

Error, to tbe Common Pleas of Bradford county. This was an action of debt to May Term, 1847, on book account, by Robert Pendleton and another v. Henry W. Tracey. The case was on the trial list for February Term, 1852; but Wilmot, President Judge, having been concerned as counsel in the case, it was certified for trial before the Hon. E. Gr. White, President Judge of an adjoining district. A special Court was accordingly appointed, and was held by White, J., in November, 1853.

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an action by Michael Murphy v. Howard, Earl, and Weaver, in business under the name of Howard, Earl & Co. The declaration contained two counts, one for the use and occupation of part of a house for one year from 1st April, 1851; and the second was on an agreement to pay $200 for the premises for the time above referred to.</p> <p>In February, 1851, Rogers, Sinnickson & Co. occupied the premises under a lease from Murphy, the plaintiff. In that month they notified Murphy that they intended to leave the premises on the 1st of April following. To this Murphy objected on the ground that they had leased for a longer period. After that, viz., in March, 1851, Murphy told the clerk of Rogers & Co. that he had an opportunity of leasing the premises, and would release Rogers & Co. It appeared that Earl and Weaver applied to W. L. Whitney, who stated that he was the agent of Murphy, and inquired if the rooms in question were for rent, and they were informed that they were for rent for one or for five years. At their request, Whitney drew an instrument of Writing, stating that Whitney, as agent for Murphy, agreed to bind himself to let the premises to Weaver for a period not less than one year, nor more than five years, at $200 per year. The paper was handed to Weaver. The instrument was not copied into the paper-book, but it seemed to be intimated that it was signed by either Weaver or Earl. Its date was not stated. Soon afterwards the agent perceived that the defendants, who were an Express Company, were in possession. They were in possession before the 1st of April, but not after that day. The agent stated that the rooms were occupied by others when he leased to Weaver. He stated that he received the keys of the room on the 1st of April, 1851, under a protest by him. He said he got the keys from the agent of Rogers & Co.</p> <p>On the part of the defendants, it was proposed to ask the witness whether the keys were not delivered to him, as the agent of Murphy, on the 1st April, 1851, and whether the defendants before that time did not deny that they had leased the rooms'. This was rejected.</p> <p>It was admitted that the defendants had leased from Rogers & Co., prior to the 1st April, 1851, and had paid to them rent till that day. ■</p> <p>On part of the: defendants it was offered to prove “ that Michael Murphy had no interest in the property leased, at the time he leased it, and had no right to lease it.”</p> <p>This was objected to, and was rejected. It was the 3d bill.</p> <p>Jordan, President Judge, instructed the jury that if they believed that Weaver, one of the firm of Howard, Earl & Co., agreed to lease the property for one year, at the amount stated, viz., $200 per year, the plaintiff was entitled to recover.</p> <p>Yerdict for plaintiff for $214.</p> <p>It was assigned for error, that the Court erred in rejecting the evidence stated in the third bill of exceptions.</p>

This was an action of assumpsit, brought in November, 1847, by John Jackson, who was a laboring man advanced in life, against Jacob Dingee, to recover wages for four years’ sendees, alleged to have been rendered to Dingee in the capacity of a hired servant on his farm, between 1842 and 1846. The plea was non assumpsit infra sex annos.

This was an action on the case, by David C. Wilson against James S. Huber, for deceit in relation to the character and circumstances of one Richardson. The plaintiff resided in Wilmington, ■Delaware, and being engaged in the business of brickmaking, was called upon, on or about the 22d of October, 1850, by Richardson, who resided in Philadelphia, for the purpose of procuring bricks for certain houses he wa.s erecting.

This was an action of debt, in the name of the township of Branch, v. Joel Youndt and others, brought on the bond of a collector of road taxes. Youndt was one of the supervisors of Branch township in the year 1844, and was appointed collector of road taxes. The other defendants were Jiis sureties in the bond in suit.

<p>1. Where the plaintiff in an action in the Common Pleas on a contract recovers less than $100, and there is nothing oh the record to show that the demand was reduced by set-off, the presumption is that the amount in controversy was within the jurisdiction of a justice of the peace.</p> <p>2. Testimony given in the Court below on the hearing of a motion relative to costs, forms no part of the record, nor can it be brought up by bill of exception.</p> <p>3. Where the Court below, in a question whether a plaintiff who had recovered less than $100 in an action in ¶ the Common Pleas on a promissory note for $100 was entitled to costs, heard testimony in order to show1 how the amount recovered was reduced below that amount. Held, that the testimony being no part of the record, the decision of the Court below founded on it was not the subject of review.</p>

Kepner. By article of agreement, dated 23d Oct. 1850, Jonas Bock sold to Samuel M. Kepner a farm, containing above 287 acres, for a consideration .exceeding $8500.

Pleas of Tioga county. This was an action of trespass by Franklin Russell v. Billings and May, to recover the value of a horse claimed by the plaintiff, which had been levied on and sold under process issued in a proceeding before a justice of the peace by Billings v. Albert Russell. The plea was not guilty.

This was an action of replevin, by James Kimball v. John G. Young, for a span of sorrel horses. Kimball was an innkeeper, in Wellsboro’, Tioga county. Young, the defendant in the replevin, was a contractor for carrying the mail twice a week between Wellsboro’ and Coudersport in Potter county. He sub-let the contract to Cornelius Culp.

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an appeal from the judgment of a justice of the peace, in an action by Isaac Beach v. Peter Parmeter and two others, for an injury done to his mare, in 1849, whilst passing on the public highway. The plaintiff had sent his son on an errand, and whilst riding on the mare he met the defendants in a buggy. The defendants continued in the road, and, whilst passing, the leg of the animal was struck and injured. It was said that the body of the mare, except the leg which was struck, was outside of the wagon track, on the foot path; and it was alleged that the defendants could have turned aside sufficiently to have avoided a collision. The mare was turned out on the side which was usual, and a log lay within eighteen inches of the wagon track on the side to which the mare was turned.</p> <p>White, President J., inter alia, charged “that a footman or equestrian has a right of way as well as the driver of a carriage or lumber wagon. The enjoyment of this right is regulated by reason. A footman or horseman cannot compel a teamster, who has a heavy draught, to leave the smooth beaten track of the road, if there is sufficient room to pass on either side. And where a road is narrow, or there is difficulty in passing, and it becomes impracticable or dangerous for the teamster to give part of the way, and the horseman ean pass by riding out of the road, it is his duty to do so. If he refuses, and a collision ensues which occasions injury to his horse, it is attributable to his own negligence or obstinacy, and he is without remedy. So if the collision is entirely accidental, resulting from the vicious conduct of the animal which he rides, whether induced by fright or any other cause.” Ho further observed, that if the injury was “the result of accident” no blame could attach to the defendants, and they could not be held liable “ to pay damages for an act whieh was not caused by them.”</p> <p>Verdict was rendered for the defendants.</p> <p>The portions of the charge referred to were assigned as error.</p>

This was an issue of devisavit vel non, in which Samuel Daniel was plaintiff, and Joseph Daniel was defendant, and was directed to try the validity of the will of William Daniel, deceased. The verdict was for the plaintiff.

This was an action of ejectment by William O. Reynolds and Jane his wife, against Samuel 0-. Turner and Samuel Wadhams, for three acres of land in Plymouth, Luzerne county, being part of lot No. 49, called “ New Holland.” The plaintiffs claimed under John Smith. The title to lot No. 49, containing 121 acres, was shown to be out of the Commonwealth, but was not proved to have ever vested in the said John Smith.

<p>1. Where the public, for above thirty years, had been permitted to occupy as a sidewalk a portion of ground in a village, in front of a private building, and the owner extended into the sidewalk or near to it a hatchway leading to his cellar, and interrupted the passage, permitting the interruption to remain for several days without enclosure or other protection against accident, it was Held, that he was liable to a person who was injured by falling into the same in the night time, no want of ordinary care on the part of the person injured appearing.</p> <p>2. The burden of proof of want of ordinary care on the part of the person injured lay upon the party alleging it, .viz., the defendant.</p> <p>3. The Court had a right to express an opinion as to the character of the injury sustained.</p>

This was an action of ejectment brought to June Term, 1846, in which George N. Eckert and S. Guilford were plaintiffs, and William Bil&nd and others were defendants. It was brought to recover 60 acres of land in Pinegrove township, which the plaintiffs claimed to be part of 440 acres and 31 perches, surveyed on a warrant to Conrad Lengle, dated 3d April, 1794, and patented on 6th April, 1795, to James Wilson.

A petition of Thomas B. Hallowell and Aaron Hallowell, acting pxecutors of the will of Thomas Hallowell, deceased, was presented to the Orphans’ Court, in which it was represented that their account as executors had been filed and confirmed, showing a balance in their hands of $974.49, which was insufficient for the payment of debts of the estate: and that the testator by his will devised the ivhole of his estate.

This was an ejectment to April Term, 1851, by Hannah Pierce, who survived Marmaduke Pierce, James and Samuel Hunlock v. Henry Hakes, to recover 100 acres of land in Hanover township, Luzerne county. Both parties claimed the land in controversy under the will of Samuel Jameson, who died in 1843. The will was made on the 6th September, 1842, and was proved before the register of Luzerne county on the 26th April, 1843.

<p>Error to the Common Pleas of Delaware county.</p> <p>This was an action of covenant to May Term, 1851, by George Jordan against John Stewart, on a deed of conveyance by Stewart to Jordan, which, on the part of Jordan, the plaintiff, was alleged to contain a clause of general warranty, warranting the title to the lands conveyed.</p> <p>On the 20th of June, 1884, John Stewart and wife conveyed to George Jordan a tavern house and tract of land in Delaware county for $2250. The plaintiff went into possession and continued to occupy till April, 1847, when an action of ejectment was brought by Mary Crawford and others on a title paramount to that of Stewart against Jordan, and a recovery had for four-fifteenths of the property conveyed. The judgment in this action was reviewed by the Supreme Court, and affirmed; anda habere facias possessionem executed. The plaintiff in this suit then purchased the adverse claim for $1000, paid the costs and counsel fees, and brought this action to indemnify himself for the loss sustained.</p> <p>The defendant pleaded non est factum — denying that he gave a deed of general warranty.</p> <p>The deed exhibited contained appropriate words of special warranty, with words interlined which converted the clause from a special to a general warranty. The words interlined were, “or any other person whatsoever.” The defendant alleged that the deed was altered by the interlineation after its execution. The plaintiff alleged that it was done before its execution. The evidence adduced on either side had relation to this question.</p> <p>John L. Pearson, of Delaware county, a justice of the peace and a surveyor and conveyancer, wrote the deed, and was a witness to its execution. He died in 1842.</p> <p>The deed was entered for record on the day of its date, and remained in the recorder’s office at Chester for upwards of five years. It was taken from the office by Jordan, the plaintiff, in 1839, and soon after Pearson, by an affidavit endorsed on the deed and taken before a justice of the peace, alleged^that he was present and saw the deed executed and delivered — that the interlineation in question was made by the affirmant in his proper handwriting, before the deed was signed by Stewart and wife, “ and was made known to them.” He further affirmed as to the handwriting of the grantors and the witnesses, of whom he was one. This affidavit, dated 25th November, 1839, was offered in evidence, and rejected. The first bill of exceptions related to the rejection of'the affidavit.</p> <p>The second bill related to the admission of testimony. The defendant called a witness to prove that John L. Pearson called at his house with the deed in question in 1838 or 1839, and that in conversation with Stewart, the defendant, he stated that he had been sent there by Jordan, to get the deed re-acknowledged by Stewart. The declarations of Pearson, thus alleged to have been made, were objected to; the objection was overruled, and the plaintiff excepted. The deed was not re-acknowledged.</p> <p>The interlineation was not in the record of the deed.</p> <p>It was testified by the person who recorded the deed, that before the affidavit of J. L.’ Pearson was put upon it, he, in company with Jordan, examined the record to ascertain whether the interlineation was on the record. Jordan insisted that the interlineation existed when the record was made. Jordan then said he had had the deed for two or three weeks — and said that there was some talk of commencing an action for the land, and he had come to see whether the words interlined were recorded. The witness further said the color of the ink of the interlineation was not different from that used on the rest of the deed.</p> <p>Testimony was given of the good character of J. L. Pearson, the scrivener.</p> <p>The plaintiff’s counsel asked the Court to charge that the presumption of law is, that an interlineation in a deed was made prior to its execution and delivery; and that this presumption stands in place of proof till the contrary appears.</p> <p>The Court charged the jury that in considering whether the interlineation in the deed was made before or after its execution, the appearance of the deed and of the interlineation, and all the circumstances relating to the transaction, together with the character of the conveyancer, were proper subjects for their consideration. He observed that the interlineation was of material importance to the holder of the deed; and he refused to instruct the jury that the presumption of law was that the interlineation was made before the execution and delivery of the deed, and that such presumption stood in place of proof till the contrary appeared; but he referred the deed, and all the evidence relating to the interlineation, to the jury to determine whether it was made before or after the execution and delivery of the deed.</p> <p>March 5th, 1853, verdict for defendant.</p> <p>The rejection of the affidavit of J. L. Pearson, the subscribing witness, endorsed on the deed, was assigned for error. 2. The admission of the testimony as to declarations made by Pearson in 1838 or 1839, when he submitted the de,ed to Stewart for re-acknowledgment, that in doing so he was acting at the instance of Jordan, the plaintiff. 3. In refusing to charge as was requested.</p>

This was an action on the case by The Philadelphia Mutual Insurance Company v. The Washington Mutual Insurance Company.

This was an action of trespass by Luther Kellum against John F. Green. The plaintiff elaimed the land in question under Luther Kellum, his father, who, in 1810, entered upon land, part of which was in controversy, and which was covered by a warrant in name of Jonathan Nesbitt, and was holding the same at the time of his death, which took place about seven years before the trial. The plaintiff claimed under the statute of limitations.

This was a claim filed at the instance of The Board of Health v. The Sector, &e., of the Church of Gloria Dei, for the paving, &e., of the cartway of Swedes’ Court, which commences at Second street near Christian street, and extends from Second street about 146 feet to a piece of ground, formerly used as a burial ground, but it was not used for any purpose when the claim was filed. The defendants were charged as owners or reputed owners.

<p>The terms “vegetables and roots prepared or otherwise/-’ used in the memorandum clause of a policy of insurance as -warranted by the assured free from average, Held to include pinkroot, though as an article of commerce previously dried or prepared, deprived of its germinating qualities and in no way succulent or perishable in its nature, the assured having failed to show any usage of trade to control the ordinary meaning of the terms.</p>

<p>Error to the Common Pleas of Chester county.</p> <p>A writ of ejectment was issued on 20th November, 1849, in favor of Elizabeth Cox and John Wilde against James Lynch, for a tract of above 86 acres. In July, 1850, the death of Elizabeth Cox was suggested, and William Cox and others, her children (except Henry T. Cox) and their husbands, were substituted. Elizabeth Cox claimed as sister of John Lynch, and John Wilde was supposed to be the representative of another sister of John Lynch.</p> <p>The original plaintiffs in the action claimed to recover the land as heirs of John Lynch, who died in 1828. The deed for the property in question was from Robert Gregg and wife to John Lynch, and was dated 21st April, 1828.</p> <p>On the part of the defendant it was alleged that the property was paid for with the money of James Lynch, and that the latter took possession of it soon after its purchase, in 1823, and had since been in possession by himself and tenants, and had improvements made on it. James and John Lynch were Irishmen, and were cousins.</p> <p>On the part of the plaintiffs, it was testified by J. Hodgson, that John Lynch came to the farm with James Lynch and his family in 1823, soon after it was purchased. During the summer he removed across the road, and died during that fall. He was unmarried. He left two sisters. The witness said that between 1833 and 1836 he had a conversation with James Lynch, the defendant, in relation to the sisters of John, who were in Ireland, and that James wanted him to go to Ireland and purchase their interest in the land for him. He said that James Lynch left the property about 1834, and went to Maryland.</p> <p>The witness was examined as to the mesne profits, and testified that certain letters were in the handwriting of James Lynch, the defendant. ■ In one of the letters, which was signed John Lynch, (John Lynch was a son of James) and dated in May, 1849, it was, inter alia, stated that John Lynch died on the 24th August, 1823, and had left a small property in the care of his father, “ which property he bought in the year 1823, and for which he paid $860.” The letter.was addressed to Mrs. Cox in England.</p> <p>On the part of the defendant it was testified by Robert (fregg that he bought the property in question from James Hodgson, in 1823. That in February, 1823, James Lynch came to him to buy it, and it was shown to him. In a few days after he returned with John Lynch. James said he would be willing to give $860 for it, under certain conditions, which were agreed to. No article of agreement -was made, but in March, 1823, the witness removed James and his family to the land. John Lynch said that if James was not able to pay all the money for the land, he would assist him. The witness thought that John wrote the deed — but James paid the money. He stated he did not know where James got the money. This was in 1823. That John Lynch said it made no difference whether the deed was made to him or James, for they •were the only two cousins in the country — that he had lost his health, and did not expect to live long, “ and it would be James Lynch’s property anyhow.” He stated that John said he had two sisters who were married.</p> <p>He further stated that John said to James, when they were looking at the land, that he thought it would suit him — told James that he had the buying of the land, and must make the bargain.</p> <p>Another witness said that Keenan, a tenant of James, came to the land in 1833-4.</p> <p>It was stated in the paper-book that James Lynch had continued to- occupy the land by himself or tenants since 1823. Evidence was given of improvements, by direction of James, in the second and fourth years after he took possession.</p> <p>Evidence was given of the mesne profits.</p> <p>On part of the defendant, evidence was given to disprove the character of Hodgson.</p> <p>On part of the plaintiffs, witnesses were called to sustain the character of Hodgson.</p> <p>Points were submitted on each side.</p> <p>The judge charged that if the verdict were for the plaintiffs, they were entitled to recover mesne profits from the death of John Lynch, and that the jury might give damages not only for rents and profits, but for cutting timber, and any other injury done by the defendant to the property.</p> <p>tie also charged, inter alia, that in order to entitle James Lynch, the defendant, to hold the property, it must be clearly shown not only that “ James furnished and paid the purchase-money, or part thereof, but that the conveyance was made tp John under the express understanding and agreement that he would hold it for the use of James.” He expressed the opinion that no such clear evidence existed in the case.</p> <p>In reply to points proposed on part of the defendants, one of which was that twenty-one years’ exclusive and adverse possession gave title to land in Pennsylvania against all persons capable of suing, and that the possession in this case was of that character, and was adverse and exclusive, the Court charged that if the heirs of John knew of the fact that John held the legal title, then twenty-five'years’ possession without claim would be corroborative of the right of the plaintiffs; but that the plaintiffs were beyond sea, and there was no evidence of their knowledge of the condition of the matter until 1849; that twenty-one years’ possession will give title, if it be adverse and exclusive, but th,at in this case, according to the evidence, the possession was unknown to the plaintiffs ; and Elizabeth Cox, being a married woman until within a few years, was protected by her coverture.</p> <p>December 28, 1858, verdict was rendered for the plaintiff, and for Henry T. Cox (who, though a son of Elizabeth Cox, had not been substituted), for the undivided half of the land, it not having been proved in the case that John Wilde, one -of the plaintiffs, was the representative of another sister' of John Lynch.</p> <p>Various specifications of error were filed: the first, that the verdict was in favor of Henry T. Cox, who had- not been substituted, — and others applying to the instructions referred to, including the instruction as to recovery of mesne profits.</p> <p>On part of plaintiff in error, in support of the position that where one man pays the money for land and the conveyance is made to another, a trust arises by operation of law in favor of the person who paid the money, reference was made to 3 Bin. 302; 2 Ser. & R. 521; 5 Watts 27; 8 Ser. & R. 492; 5 Barr 132; 2 Story’s Eq. 1201; 1 Harris 638, opinion in Beck v. Uhrich. The Court below held that words are necessary to raise such a trust. Parol evidence may be given to establish a trust: 4 W. & Ser. 150. The existence of the trust does not depend on the intention of the parties. The question of a resulting trust should have been submitted to the jury.</p>

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an action of ejectment, brought in November, 1851, by Josiah Emery against Lyman Spencer and others, for about 150 acres of land.</p> <p>The plaintiff claimed under a warrant of 26th November, 1836, for 150 acres, adjoining the Strawbridge survey on the marsh on the north and east, J. Steele, No. 5982, on the west, James Wilson, No. 4202, on the south, and situated in Delmar township, in the county of Tioga. The purchase-money, $40, and office fees, and $4.50, were paid. The warrant was put into the hands of the deputy surveyor soon after it was issued, as appeared from the entry in the location look; but no survey was made upon it till the 5th of August, 1850, when a survey was made by S. McDougall, then deputy surveyor. The tract was first assessed with taxes in the year 1841, and for that and the subsequent year Emery paid them. On the 18th of June, 1844, it was sold for taxes and bid off by J. E. Donaldson, to whom a deed for it was executed by the treasurer on the 16th September, 1844. On the 15th June, 1846, it was again sold for taxes, and bid off by the county commissioners, and on the 14th of June, 1851, redeemed by Donaldson, who, on the 14th July, 1851, conveyed it to the plaintiff.</p> <p>It appeared that tire original warrant was lost, and that a certified copy of it was obtained soon after Spencer took possession of the land, and upon such copy the survey was made.</p> <p>The defendants claimed by virtue of an- alleged pre-emption right acquired by actual residence and settlement made upon the land prior to the plaintiff’s survey, and gave evidence to show that Lyman Spencer (one of the defendants) went into the possession of the land in November or December, 1849; that he first commenced chopping on it in November, 1849; that he erected a log house on it during that month, and that his son-in-law, Thomas Shaw, moved into it the latter part of November or the early part of December, of that year; and that he or some other person continued to reside on the land without interruption from the time he first took possession till the time of the trial. Whether this residence upon and occupancy of the land, in connexion with the improvements made on it, constituted a settlement, was ultimately submitted to the jury, it being alleged, on the part of the plaintiff, that the possession of the tract was rather for the purpose of cutting and taking timber from it. than for the purpose of cultivation. There was no evidence on the part of the defendants that the land had ever been assessed in their names, or' that they had paid any money for it to the Commonwealth.</p> <p>It was admitted on part of the plaintiff that some one resided on the land from December 1, 1849, till time of trial, but it was alleged that Lyman Spencer, who claimed the land, only resided on it awhile in the summer of 1851, when he moved off, and had not resided on it since.</p> <p>Certain evidence offered, mainly with the view of showing notice to Spencer of the warrant to Emery, the plaintiff, was rejected.</p> <p>Evidence was given intending to show that, before Spencer took possession of the land, Emery was under the impression that his warrant had been laid.</p> <p>On part of the plaintiff, two points were submitted: the first was to the effect that if the jury believed that the defendants had notice before they took possession of the land that the plaintiff had a warrant for it, they could not acquire a title to it by settlement, no matter what their intentions were in going upon it.</p> <p>2. That, if the defendants took possession of the land for the purpose of cutting and removing the timber, and not for the purpose of residence and cultivation, they acquired no pre-emption right, and could not set up the entry as the commencement of title by settlement.</p> <p>White, J., in his charge, inter alia, observed that it was alleged on part of the plaintiff that since the passage of the Ac't of 10th March, 1817, no right could be acquired by settlement; and, 2. That his warrant had priority over defendants’ settlement, it being descriptive, and under the circumstances of the case the land not having been abandoned, and Spencer having notice of the plaintiff’s claim. He observed: “ The case of Stockwell et al. v. Robinson, 1 Barr 482, giving a construction to the effect of the proviso in the 2d section of the Act of 28th March, 1814 — rules the first position advanced by plaintiff — the 2d section of the Act of the 28th of March, 1814, and the 3d section of the Act of 10th March, 1817, being the same substantially, with the ■ exception that the Act of 1814 refers to the purchase of 1768, and the Act of 1817 to the purchase of 1784. We therefore charge you-that *a preemption right to vacant lands of the Commonwealth can be acquired by settlement since the passage of the Act of 10th March, 11817, which was intended merely to change the price of land in the purchase of 1784, and to permit warrants to issue for vacant lands without settlement, and that a warrant surveyed upon land held by a bond fide settlement would confer no title on the warrantee, and would not affect the claim of the settler.”*</p> <p>He charged that though the warrant was descriptive, and the purchase-money and fees paid, and though Spencer had notice, in 1847, of the plaintiff’s claim, and also in 1849, before making his improvement and settlement, yet as no survey was made on the warrant till August, 1850, nearly fourteen years after it was issued, no sufficient reason being shown why the survey was not made, and the plaintiff never having taken possession or improved any portion of the land, it was a case of abandonment, falling within the rule stated in the case of Strauch v. Shoemaker, 1 W. Ser. 116; and Wilhelm v. Shoop, 6 Barr 21, and other cases. He further charged that under the evidence, if the jury should be of the opinion that the improvement made by Spencer, commencing in November, 1849, and continued, constituted a bond fide settlement, it would be an intervening title, having priority over the plaintiff’s warrant and survey.</p> <p>As to a settlement, he quoted from the 8d section of the Act of 80th December, 1786, and added, that it was not necessary that the claimant himself should reside on the land; that he may make his settlement through the agency of another, and continue it by his tenants; that there was no fixed rule for determining the degree of diligence with which an improvement must be prosecuted in order to preserve the settlement claim; that each case must depend on its own circumstances; that reasonable diligence must be used, and what constituted it was to be decided by the jury. There must be the intention of residing permanently, and of deriving from it, by cultivation, the means of supporting a family, and not a residence manifestly to derive profit from the timber upon it. The object of Spencer in entering upon the land was referred to the jury, and if it were merely to strip the timber off the land and then abandon it, he had not acquired any right by settlement.</p> <p>Verdict was rendered for the defendants.</p> <p>Error was, in substance, assigned to the charge that a preemption right could be obtained. 2. That this was a case of abandonment. 3. That, notwithstanding a warrant is descriptive, and the purchase-money and fees paid, it must be surveyed and returned in a reasonable time — that what constitutes reasonable diligence is within seven years a question of fact for the determination of the jury; but if the survey be not made and returned within seven years, it is then a question of law for decision by the Court. 4. In charging that this was a case of legal abandonment. 5. That knowledge by Spencer of the 'issuing of the warrant could not affect the defendant. 6. In charging, that, if the improvement constituted a bond fide settlement, it would have priority. 7. In charging, that it was not necessary for the claimant, in person, to reside on the land. 8. To the charge on the subject of diligence. 9. To the rejection of the evidence mainly offered to show notice of the plaintiff’s claim by Leet, from whom Spencer purchased; and — 10. In not answering in the affirmative the plaintiff’s first point as to notice by Spencer of the plaintiff’s warrant.</p>

<p>Error to tbe Common Pleas of Chester county.</p> <p>This was an action of ejectment by Maria R. Olwine v. William W. Holman, who had for his guardians George Baugh and H. Neff, to recover the undivided half part of lot No. 47, in the town of Bath, at Chester Springs, Chester county; and also the undivided half part of the one hundredth part of the Bath lot in said town, which lot contained 101 perches and fifty-nine hundredths. The plaintiff claimed under deed to her by Abraham Olwine, dated 18th February, 1852.</p> <p>The claim was under James Bones, who at one time owned a tract of 152 acres, on which was the Yellow Springs, now called the Chester Springs. In 1814, he had a town laid out on this tract, which he called “Bath.” The lots were 101 in number. The lot which embraced the spring was called the “ Bath Lot.” The others were numbered from 1 to 100. He determined to grant with each lot conveyed a right to the Bath lot. He disposed of a number of the lots, and with each one conveyed he granted the one-hundredth part of the Bath lot. On the part of the plaintiff, it was contended that the deed conveying each lot, also conveyed a fee simple title to the undivided one-hundredth part of the Bath lot; whilst on the part of the defendant it was contended that the right granted was a right appurtenant to each of the 100 lots, viz. a right to go upon the Bath lot, and use the water of the spring.</p> <p>A portion of the lots was disposed of by a lottery, and lot No. 47 was one of them. The title exhibited on part of the plaintiff was as follows :—</p> <p>A deed from James Bones and wife to Jacob Nailor and James Dilworth, dated 27th November, 1814, for lot No. 47, and the undivided hundredth part of the Bath lot, to hold as tenants in common.</p> <p>This deed was recorded on 9th April, 1824.</p> <p>2. A deed from the sheriff of Chester county to Abraham Olwine, dated 11th March, 1830, for the interest of Jacob Nailor in the said premises.</p> <p>3. A deed from Abraham Olwine to Maria R. Olwine, the plaintiff, dated February 18, 1852, for the interest obtained under the sheriff’s sale and deed.</p> <p>The defendant claimed under the statute of limitations, which to be effective it was necessary should go back to February, 1831, the action being brought on 23d February, 1852.</p> <p>It appeared that some of the lots conveyed by James Bones were fenced and built upon. A majority of them were not fenced separately, but were used for farming purposes by Bowes, and so used until 1830. This was the case with lot No.,^7. In 1830 Bones removed from the farm, and Anthony W. Olwine, — who was his son-in-law, — in April, 1830, took possession of the premises which Bowes left. The character of the agreement under which he entered, did not appear. Afterwards Bones and wife, by deed dated 14th April, 1831, conveyed to said Anthony W. Olwine- the tract of 152|- acres, being the same farm on which the lots had been laid off; but in this deed were reserved thirty-four lots, which had been previously conveyed by Bones to other persons, and lot No. 47 was one of those reserved, the same having been previously sold to Nailor and Uilworth.</p> <p>On the next day after the date of this deed, viz., on the 15th April, 1831, Anthony W. Olwine mortgaged the whole tract to Thomas Woodward for $7500, with a reservation of 24 of the 34 lots reserved in the deed by Bones; but lot No. 47 was not one of the 24. It had, with seven others, been inserted in the draft of the mortgage, but they were erased.</p> <p>To May Term, 1847, a fi. fa. was issued on a judgment of Woodward against Anthony W. Olwine for $500, and under this the mortgaged premises were levied upon, with the exception of the lots reserved in the mortgage. On an alias vend. exp. to February Term, 1838, the premises levied on were sold, and were struck off to Abraham Olwine, but he not having fully complied with the terms of sale, a deed -was executed for them by the she^ riff to Margaret Holman, who was the next highest bidder, conveying the mortgaged premises subject to the reservations therein. Margaret Holman took possession of the premises and of lot No. 47; afterwards had an expensive house built, partly on lot No. 47, and continued to occupy it till her death. After her death, it was, in 1850, taken by her eldest son, Frederick Holman, under proceedings in pai’tition; and he died in 1851, leaving his son William W. Holman, a minor, as his heir, who was the defendant in this suit.</p> <p>From the time that Anthony W. Olwine entered into possession of the farm in 1830, until 1836, he used lot 47 with the Bath lot, lot No. 47 not being separately enclosed, but being in one of the fields which was cultivated. The land was assessed in the name of Anthony W. Olwine till 1838, when Mrs. Holman took possession. In 1836, Anthony W. Olwine sold the undivided half of the spring property to Joseph Wood for above $7000. In this sale the half of lot No. 47 was included. In some months after-wards, Olwine and wife, and Wood, united in a sale to Horace Weeks for $42,000. This sale purported to be of the whole tract of 152 acres, reserving about 12 lots, lot No. 47 not being included in the reservation. Subsequently, the sale under the mortgage took place as the property of Anthony W. Olwine.</p> <p>Haines, J., in his charge to the jury, observed that Anthony W. Olwine used the property as his own — paid taxes, and, on two occasions, sold it as his own. He expressed the opinion that the evidence, if believed, was sufficient to establish an adverse possession of the lots in dispute — that this was a question for the determination of the Qourt, and he instructed them that a hostile possession, for a period of 21 years, had been shown on the part of the defendant. That the Bath lot was in the same category as lot No. 47.</p> <p>Two points had been submitted on part of the plaintiff; the first of which was, that the possession of one tenant in common is the possession of the other, and to constitute ouster so as to give title by 21 years’ possession, the possession must commence by some clear, open, positive, and unequivocal act, amounting to an open denial of the right of the co-tenant. The 2d was, that no such ouster had been shown by the defendant.</p> <p>As to the first, he observed that the jury, under the circumstances referred to, might presume an actual ouster, though none be proved; and he disaffirmed the second point.</p> <p>Verdict was rendered for the defendant.</p> <p>It was assigned for error: 1. That the Court erred in charging that A. W. Olwine held the property adversely. 2. That in the opinion of the Court the evidence was sufficient to establish an adverse possession for 21 years of the lots in dispute. 3. In charging that the Bath lot stood in the same category with that of Lot 47. 4. In disapproving the plaintiff’s second point. 5. In charging that A. W. Olwine mortgaged lot No. 47 to Thomas Woodward. 6. In charging that Abraham, Olwine concealed his title to the said lots, and suffered them to be sold as the property of another.</p>

<p>Certiorari to the Quarter Sessions of Lancaster county.</p> <p>To April Sessions 1852, a petition was presented to the Quarter Sessions of Lancaster county, alleging inconvenience for want of the. extension of Charlotte street, in the city of Lancaster, from its northern termination at James street to the Lancaster and Harrisburg Turnpike Road, in said city; and praying for the appointment of viewers to lay out the same. Viewers were appointed, who met, and were sworn ; but not agreeing, no report was made. The order was returned, and was endorsed, “filed August 6, 1852; no report.”</p> <p>To November Sessions, 1852, a petition for the appointment of reviewers was presented. Objection was taken, but reviewers were appointed. To January Sessions they reported an extension of the street. At April Sessions exceptions were filed, and in June following, at an adjourned Court, the report was set aside. On the same day, on motion of counsel, and without petition, alias reviewers were appointed. To August Sessions the alias reviewers reported the proposed extension. Exceptions were filed, hut in January, 1854, the report was confirmed, and certiorari was after-wards taken.</p> <p>The assignment of errors was to the effect, — 1. That the Court had no jurisdiction in relation to the extension of streets in the city of Lancaster. 2. That it erred in appointing reviewers on the failure of the first to report in favor of the extension; 3. In issuing the alias order of review without petition to that effect. 4. In appointing alias reviewers at an adjourned Court, the proceedings not having been continued over from the regular term. 5. That in the petitioner’s proposed extension the point of terminus was not designated with sufficient precision.</p>

John Retallic brought an action of debt against the Rev. William Beates, to recover the penalty of ¿650, prescribed by Act of Assembly for marrying á minor without the consent of the parents. In the declaration it was charged that the plaintiff’s son, alleged to be a minor, was married by the defendant on the twentieth of June, 1852. At the trial it was offered to prove that the marriage took place on the 27th June.

The county of Lancaster brought suit to November Term, 1852, against Isaac Messner, on a bond, dated 22d April, 1851, executed by him and Richard Davis to the county of Lancaster in the penal sum of $>716.66, conditioned for the payment to the said county of the one-third part of the expense of erecting a bridge over Muddy creek in said county, “ when the superstructure shall be completed.” It was stated in the bond that the “proffered contribution” was the inducement which…

<p>1. Subrogation being founded on principles of equity may be enforced where there is no contract for a transfer of the security.</p> <p>2. To prevent a sale upon execution the defendant in the judgment gave to the judgment-creditor a promissory note with an endorser for the amount of his claim and received the single bill on which the judgment was founded. The note having been discounted was ultimately paid to the bank by the endorser thereon, and he afterwards procured from the creditor an assignment of the judgment on which satisfaction had not been entered. Held, that the endorser was entitled to payment of the judgment in preference to a subsequent judgment entered previous to the giving of the note.</p>

<p>1. Where a testator gave to his son John $500 as an advancement and afterwards made his will devising all his estate equally among his seven children, in which he refers to the fact of the advancement and then says, “ further I will that, if my estate amounts to more than seven times five hundred dollars, my son John is to have a proportional part of it.” Held, that John was entitled to nothing until the other children received $500 each, and that in all beyond that he was entitled to share equally with them.</p> <p>2. Where the meaning of a will is doubtful, the rule of equality among children may be taken as a guide of the interpretation.</p>

F. Shoenberger. E. E. Shoenberger was in failing circumstances on the 28th January, 1850. Judgments had been obtained against him, and some writs of ft. fa. were issued. On that day eight writs of foreign attachment were issued against him, numbered from 4 to 11, inclusive, of April Term, 1850. They were all delivered to the sheriff in the afternoon and evening of the 28th January, before any 'service had been made of either of them.

■ At October Sessions, 1852, a petition was presented relative to a road to lead from a point at John Beigh’s barn, on the road from Harrisburg to Northumberland, to a point at John Low’s, &c. By Act of 17th April, 1846, it was enacted that thereafter the number of viewers appointed by the Court of Quarter .

<p>1. A husband cannot be tenant by the curtesy of his wife’s estate in reversion or remainder expectant on an estate of freehold unless the particular estate be ended during the coverture. '</p> <p>2. The wife having died during the lifetime of her mother, the widow of the intestate, her husband had no estate by curtesy in the third to which the widow was entitled during life; and on the death of the latter such third part descended to the heirs of the intestate unencumbered by any claim'on the part of the husband or his creditors.</p> <p>3. A tenant from year to year had authority to lay a pavement required by a borough ordinance to be made by the owner or occupier, and the expense thereof was chargeable against the tenant for life.</p> <p>4. But a tenant for years, if there be no agreement or statutory enactment in support of it, cannot charge ordinary repairs to his landlord by deducting them from his rent.</p>

<p>Error to the Common Pleas of Lebanon county.</p> <p>This was a suit in the name of Philip Fisher, late sheriff of Lebanon county, for the use of the Lancaster Bank, v. John C. Seltzer. It was brought to recover from the defendant the difference between the amount of his bid, when the real estate of Jonathan Wright was up for sale, and the price it sold for at a future Sale, and for costs, &c., of the sale.</p> <p>The real estate was subject to a mortgage for $6000, dated March 9, 1850, and recorded subsequently, viz., on 30th April, 1850. Martin Wingert obtained a judgment against Wright for above $3000, and judgments were afterward obtained by the Lancaster Bank and D. Moulfair. A fi. fa. was issued to April Term, 1852, which was levied on the mortgaged premises, and they were condemned. A vend. exp. was issued to November Term, 1852, on the judgment of Moulfair, and the sheriff returned that the property had been “ knocked down to John C. Seltzer” for the sum of $7000, but that he refused to sign the conditions of sale, and that the property remained unsold.</p> <p>An alias vend. exp. was issued to January Term, 1853, and the sheriff returned a sale to Martin Wingert for $1500.</p> <p>In the second condition of sale, at the time the bid was made by Seltzer, it was prescribed that “ no person shall retraet his or her bid.”</p> <p>In the sixth it was prescribed, that if the purchaser should neglect or fail to comply with the conditions, “ he shall pay all costs and charges.”</p> <p>A special verdict was rendered, in which it was stated, that previous to bidding Seltzer had been informed of the existence of the mortgage, but that he believed the property would be sold discharged of the mortgage; that on being informed by the crier that the land would be sold subject to the mortgage, he publicly retracted his bid. Notwithstanding the retraction, the property was struck down on his bid.</p> <p>The verdict was conditional, depending on the.question whether Seltzer could lawfully withdraw his bid.</p> <p>Pearson, J., expressed the opinion that, conditions may be annexed to sales at auction: Babington on Auctions 30. That one of the conditions in this case being the payment of “all costs and charges” in case of neglect or failure to comply, tiffs was the penalty prescribed in case of failure, — that by this was meant the legal costs and expenses of a second sale , and he directed judgment to be entered for the plaintiff for $40. "</p> <p>It was assigned for error that the Court erred in the construction of the sixth clause of the conditions of the sale by restricting the meaning of the words “ eosts and charges” to the mere costs and expenses of a second sale.</p> <p>The case was submitted.</p> <p>In the argument on part of the defendant in error, it was alleged that a sheriff has no right to impose any other conditions at a sale than the law imposes: 5 Barr 242, Randolph’s Appeal. That ordinarily a bidder has a right to retract his bid before the property is struck down: 3 Term Rep. 148. If the conditions were valid, they were binding on both parties: 19 Law Lib., Babington on Auctions 18; 6 Barr 486. In this case the obligation was not mutual and was void: 3 Term Rep. 653. By the terms “ costs, charges, and expenses” are meant such costs, &c., as Courts take notice of by their officer : 2 Wilson 268, referred to in 13 Ser. &. R. 79; 1 Ashmead 110.</p>

This case was argued before, but no judgment was pronounced. Tbe real estate of Reuben Smith was levied upon, and was subsequently, viz., in January, 1851, sold on vend. exp. for $961— after deducting costs, there remained for distribution $941.50.

Appeal by John Ely from the judgment of the Common Pleas of Lebanon county, directing the entry of a judgment to be stricken from the record. Henry G. Clark gave a note, as follows:— $2030.69. Mt. Joy Tp., Lancaster Co., Dec. 20, 1851.

<p>Error to the Common Pleas of Berks county.</p> <p>This suit was commenced by Umstead against the administrator of Eland before a justice of the peace, and carried by appeal into Court, where the plaintiff got a judgment for $7.28, and the defendant brought this writ of error.</p> <p>Bland and Umstead were adjoining owners of land, and in 1844 they entered into a written agreement under seal, for the maintenance of a partition fence, each agreeing to maintain a specified half. In 1851 the part which Bland had contracted to keep up was swept away by a flood in the river Schuylkill, and, he being dead, Umstead gave notice to his administrators to restore it, which they neglected to do, and Umstead did it himself, and claimed to charge them for the expense.</p> <p>The defendants offered to prove that before the repairs became necessary, Bland had died, and his land had been sold and conveyed to others, and that his estate had been fully settled up and distributed. The overruling of this offer involved the whole principle of the case.</p>

<p>1. After giving a life estate, the testator allowed the plantation, after the end of the life estate, to come to the next male heir nearest in kindred and relation to himself, “according to law, and so on in succession on that line.” Held, that the person who became seised of the remainder at the testator’s death was seised in fee simple.</p> <p>2. By the words according to law was meant that the estate should descend in the same manner the law would have given it to the heir of the testator; and the words “and so on in succession on that line” do not necessarily mean that the estate shall go to heirs of the body of the devisee, but simply to his heirs as contradistinguished from the heirs of the tenant of the life estate previously given.</p>

This was an action of ejectment, to November Term, 1852, by David Graff, assignee of John M. Downey, v. William McCaskey and Adam Ellet. The defendants in some way held under Robert A. Evans.

A suit had been brought before a justice of the peace in the name of William Patton and Christian Umble, as trustees and assignees of the late firm of Eby & Lightner, v. Christian Yost. Eby & Lightner, as partners, were merchants in Lancaster county. Christian Yost was a farmer, residing in their neighborhood.

This was an action on the case to November Term, 1851, by Henry Wissler v. Benjamin Hershey, for obstructing a right of way claimed by the plaintiff over the farm of the defendant, and through his barn-yard to the plaintiff’s wood lot. The farm of the defendant and the wood lot of the plaintiff formerly formed parts of the same tract, which belonged to Michael Kauffman.

<p>Past cohabitation and the agreement of the father of the female that the obligor might marry his daughter, though she was of full age and thus competent to contract marriage without his consent, were a sufficient consideration for a bond conditioned for her proper treatment and that the obligor, her intended husband, would not desert her.</p>

This was an appeal from the decree of the Court, decreeing a divorce, on the application of the husband on account of the desertion of his wife. Isaac Eshbach petitioned the Court for a divorce from Esther his wife.

At April Sessions, 1852, a petition was presented alleging inconvenience, for want of a public road leading from a point on the lands of Samuel B. Heise, at the end of Second Street in Columbia, thence by the nearest and best'route until it intersects the turnpike road leading from Columbia to Marietta, &e., at the point where an extension of said Second Street in its present course would strike the said turnpike in Columbia.

This was an action of trespass on the case by A. N. Brenneman v. John E. Shroder, for the improper use of or interference with an alley along which the plaintiff had a right of passage. The alley was six feet in width, extending along the property of the plaintiff up to and along a property of Shroder’s, the defendant, at the head of the alley, as to which property Shroder had the right of way along the alley. This property Shroder had purchased from John Metzgar.

<p>Appeal from tbe decree of the Orphans’ Court of Lancaster county.</p> <p>This was an appeal by John Strohm, for himself and others, from the decree of the Orphans’ Court, confirming the report of an auditor reporting distribution of moneys in hands of Jacob Eehl, administrator de bonis non of Henry Rush, deceased, the net amount for distribution being $724.80.</p> <p>Henry Rush died in 1811, having made his will, dated 11th May, 1811, by which, after directing the payment of his debts, he bequeathed to his sister Nancy, intermarried with Henry Kendrick, ¿6400, “ during her lifetime, to enjoy the interest of the same, but not touching the principal; and after her death- to be equally divided between her lawful children.”</p> <p>He next devised to his brother, Jacob Rush, two-thirds of his remaining estate — and next bequeathed to his brother John Rush’s four children “all and every part” of his “remaining property.”</p> <p>Lastly, he nominated Henry Shearer executor of his will.</p> <p>Letters testamentary issued to Henry Shearer, who, on 24th June, 1811, submitted an inventory of personal estate which had come to his hands, amounting to $2984.38-|-. Subsequently, viz., fifteen or more years before the audit, Henry Shearer died intestate, without having rendered any further account of the estate of the testator. In 1852, Sarah Haines received letters of administration de bonis non of the estate of Henry Share. On the 9th February, 1853, she exhibited in the register’s office her account of said estate, showing a balance in her hands due the estate of Henry Share of $1741.81-J-. On the 1st day of April, 1853, Jacob Fehl took out letters of administration de bonis non cum testamento an■nexo on the estate of Henry Rush; and on the 16th day of May, 1853, he exhibited and filed his account in the register’s office, showing a balance in his hands of $767.55, due said estate.</p> <p>Nancy Kendrick, the devisee, died about 1845; her will was proved in January, 1845.</p> <p>The balance in the hands of Fehl, the administrator de bonis non, was claimed by children and representatives of Nancy Kendrick, as entitled to the ¿6400 legacy on her death. Their claim was resisted by persons claiming under the bequest of the remainder of the estate. On the part of the latter it was contended, before the auditor, that Henry Shearer, the executor, was necessarily trustee of the specific legacy of ¿6400, to put it to interest for the use of Nancy Kendrick during her life, and pay the principal to her children after her death. It was alleged that Henry Shearer received sufficient assets to pay the ¿6400; and having received it, the children of Nancy Kendrick should be referred to his estate, and not to the money in the hands of the administrator de bonis non, which it was alleged on their part had been raised out of the remainder of the estate of Henry Rush, the testator, and should b,e paid to those who were entitled to the remainder of his estate.</p> <p>The auditor remarked that the money for distribution was the first portion of the estate of the testator which was submitted for distribution, and that it should be applied to those claiming under the specific bequest of ¿6400. He observed, that if the fund in the hands of Sarah Haines, as administratrix of the estate of Henry Share, be part of the estate of Henry Rush, there could be no injury done by appropriating the balance in the hands of Jacob Fehl to the specific legacy; for when that is paid or provided for, the other fund becomes a part of the residuum of his estate for distribution among the residuary legatees. He accordingly reported a distribution of the amount in question amongst the claimants under the specific bequest in part payment of their claims.</p> <p>It appeared that the fund in dispute, in the hands of Jacob Fehl, arose from a charge in favor of Henry Rush, the testator, on real estate left by his uncle, but which money was not payable till the death of Veronica, the widow of the uncle; and that the widow died in 1852, about seven years after the death of-Nancy Kendrick.</p> <p>Exceptions to the report of the auditor were filed, which were overruled, and the report was confirmed.</p> <p>It was excepted, in effect, that the Court erred in decreeing the fund to the children of Nancy Kendrick, and not to the appellants, who claimed as entitled to the remainder of the estate after the payment of the ¿6400 legacy.</p>

The Supreme Court sitting at Harrisburg in tbe Middle District of the Court, on May 17, 1854, on application of counsel of defendants, granted a special allocatur in this case, returnable before the said Court on tbe 1st June, at Harrisburg, where tbe case was subsequently argued.

Ejectment by Abner Stigers and others, heirs of John Watt deceased, against George Thomas and James Conley. Stigers holds a warrant dated April 6, 1842, and Thomas one dated in May, 1842; but the plaintiff’s principal reliance was upon an outstanding title under a Maryland warrant, with which he did not show that he had any connexion. That warrant was issued in 1753, and a patent was obtained under it in 1754, not including the land in controversy.

Petition of John Forster, for the appointment of viewers, under the Act of 2d April, 1831, sect. 15, to estimate the damages done to his land, in the erection of a railroad bridge, report thereon, and appeal to the Court. The plaintiff was the owner of an island opposite to Harrisburg, a portion of which is crossed by the railroad bridge of the defendants. The bridge was built in 1836 or 1837, burned down in December, 1844, and rebuilt in 1846.

<p>X. A railroad company is responsible for fires caused by the careless emission of sparks in the running of their engines.</p> <p>2. XVhere a house was set on fire by sparks from a locomotive engine and there was evidence that the weather was very dry and windy, and that sparks flew from the defendants’ engines to a great distance and also set fire to several fields and fences near the same time and place, it was for the jury to decide whether this was sufficient evidence of carelessness.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>This was a feigned issue in which Daniel and Abraham Zimmerman were plaintiffs, and John Zimmerman was defendant, directed to try the validity of an alleged will of Isaac Zimmerman. The plaintiffs were the executors of the will, which was dated the 11th June, 1850.</p> <p>On part of the plaintiffs, the subscribing witnesses to the will were examined as to its execution, and the capacity of the testator.</p> <p>The admission of the will was objected to, because it referred to a written agreement between the decedent and his sons; because the widow of the testator was alive; and because among the papers transmitted from the register, and attached to the alleged will, were two drafts of the lands of the decedent. The will was admitted. The drafts were not offered in evidence.</p> <p>The written agreement was then produced in evidence, and the plaintiffs rested.</p> <p>On part of the defendant was then offered evidence, by which he attempted to prove the want of a sound disposing mind and memory in the decedent; and also duress.</p> <p>On part of the plaintiffs was then given testimony with the view of establishing competency in the ' decedent to make a will, and the absence of constraint.</p> <p>The defendant’s counsel requested the Court to charge the jury, —1. That the paper writing, purporting to be the will of Isaac Zimmerman, was not a valid will, because—</p> <p>First, — It is not a will complete in itself, but refers to an agreement between him and his two sons, which has no testamentary character, and cannot be proved as a will, and directs that that agreement shall be and remain in full force after his death; if his wife survive him, until after her death, &c.; and the widow did survive her said husband.</p> <p>Secondly, — The said paper writing orders that if Mary, the wife of Isaac Zimmerman, should survive him, that his will should not take effect until after her death.</p> <p>2. The survey is improperly attached to the will, and the will is therefore void.</p> <p>3. If the jury believe that the said Isaac Zimmerman was a feeble, easy, good-natured man, and was influenced contrary to his wishes to make such a will, it is not valid as a will.</p> <p>In the will, the testator devised to Daniel Zimmerman, his son, a certain tract of land, of about 100 acres, at a sum of $8000, to be paid in 27 annual &c.</p> <p>To Abraham, his son, he devised two other tracts of land, containing about 100 acres, at the sum of $8000, in the same number of annual payments.</p> <p>It was directed, in the seventh clause of the will, that the agreement made between the testator and Ms two sons, Daniel and Abraham, bearing the same date as the will, should remain and continue in full force after his death; if his wife survived him, until after her death; and that she should receive the rents and covenants therein set forth in lieu of her dower.</p> <p>In the 8th clause it was directed that if his wife survived him, his will should not take effect “ until the tim'e of her death.” His two sons were appointed executors.</p> <p>By the agreement or lease referred to, dated 11th June, 1850, the testator leased to his said two sons, Daniel and Abraham, a tract of land containing 200 acres (being the same land devised), to hold the same from the date of the agreement during the lifetime of the testator and Ms wife, or the survivor, at the yearly rent of $200, to be paid to the lessor during his life, and to his wife after his death, if she survived him; the lessees were to occupy subject to other conditions stated in the will. The witnesses to it were the same persons who were witnesses to the will.</p> <p>Jones, President J., charged: — “ The theory of the defence is that Isaac Zimmerman was a feeble, easy, good-natured old man, and was influenced contrary to his wishes to make this alleged will, and that therefore, it is not a valid will. *It is not every influence exercised over a testator that vitiates his testament, even though that testament may be contrary to his wishes in many particulars. The influence of a wife, for instance, the result of a long life of devotion to her husband’s happiness, may be exercised in giving a direction to his disposition of his property, and that disposition may be at variance with the judgment and wishes of the husband, yet there would be nothing in that to invalidate his will.* Persons standing in those near and dear relations are allowed to exercise the influence they acquire. That influence must not, however, destroy the free agency of the testator. His will must be the expression of a free will. The influence may give direction to, may lead the testamentary disposition, but must not control it. The law is expressed very forcibly upon this subject in Browne v. Molliston, 3 Wharton 129; and in Small v. Small, 4 Greenl. Rep. 223, from which the true rule is to be deduced. It is for the jury to apply these principles to the facts of the ease.</p> <p>“ The will is not invalid for the reasons suggested in the first and second points of the defendant.”</p> <p>Verdict was rendered for the plaintiffs.</p> <p>Error was assigned to the part of the charge between asterisks. 2d and 3d. In not charging as requested in the first point. 4th and 5th. In not charging as requested in the 2d and 3d points. 6th. In admitting in evidence the will, the admission of which was objected to, 1. Because certain drafts were annexed to it without authority; 2. Because it referred to the agreement; 3. Because it was not to take effect until the death of the widow, and she was still living.</p>

The present question arises on the interpretation of the will of Henry Etter, so far as it relates to the land devised to his son Henry. His will was made in 1848, and among other things he devises to Henry a tract of land, “ to hold the same during his natural life; and from and immediately after the death of my said son, I give and bequeath the said premises unto his lawful issue, if such he shall have any to survive him.

Action on the case by John Ryan against the company for damages occasioned by the breaking of his arm while in the employment of the company, and through the carelessness of their agents. The plaintiff, with many others, was employed by the defendants to make repairs on their road, and the work was carried on partly by means of a train of gravel cars, made to dump to either side, and moved- by locomotive power.

Pleas of Dauphin county. Action by William Rewalt and Elizabeth his wife, against the executors of her grandfather, Michael Ulrich, to recover a legacy claimed by her under his will. Her title to the legacy was not disputed ; but the defence was that her title was only for her life, with a quasi remainder to her children, or to the testator’s children, and that she had not given bail in accordance with the Act of Assembly; and this defence was sustained below.

Assumjmt by Samuel Forscht against the borough for a reward of $1000, offered by the burgesses for the detection and conviction of the person who set fire to Mrs. Beitzel’s barn in said borough, on the evening of the 22d December, 1850. Forscht made information against one Michael Fisher, and he was tried and convicted.

Error, to tbe Common Pleas of Lebanon county. This was an action of trespass to August Term, 1852, by Ann C. Coleman and others, by their guardian John Reynolds, v. Samuel Houck and George Snow, for taking ore from one of the Cornwall ore banks or mine hills in Lebanon county.

Error, to tbe Common Pleas of Oentre county. H. Montgomery brought an action on the case to August Term, 1849, against D. A. Stewart, as executor of the will of William Stewart, deceased, to recover for medical services rendered to the testator. The pleas were non assumpsit and non assumpsit infra sex annos. On 11th September, 1850, verdict for plaintiff for $142.50.

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action of debt, brought on 5th March, 1851, in favor of Shitler v. Bremer, on book account for goods sold and delivered and on defendant’s promise to pay. The plea of the statute was interposed.</p> <p>The book account was for tobacco sold on 29th July, 1840, amounting to $109.68; and evidence was given of the plaintiff’s book. To avoid the statute, a letter, alleged to have been written by defendant, was offered, elated July 6, 1846. It was objected to ; and to prove the handwriting in it, a witness testified that he never saw Daniel Shitler write; “ I have seen his writing; I have seen order’s signed by him, that children brought to me as teacher, when he was a school director; there is a general resemblance to his handwriting. This looks like it — resembles it — can’t say I believe it to be his writing, for there is a possibility of mistake.”</p> <p>Another witness testified that he had seen defendant write; “ can’t say this is his writing; can’t say I believe it; there is- a slight resemblance of some letters; seven years since I saw his writing; no resemblance in D’s as he writes now.”</p> <p>The letter was admitted. In it, the writer requested the plaintiff to wait about two months longer, then he would come down and pay some, and all before long, and interest from April last, 1846, till paid. Jones, P. J., charged that the letter, if believed to have been written by the defendant, took the case out of the operation of the statute of limitations.” Verdict for plaintiff. The instruction was assigned for error.</p> <p>(See the case of Suter v. Sheeler, 10 Harris 308.)</p>

This was a scire facias to January Term, 1852, in the name of Hannah Hehn, who sued by her committee, Daniel Wenriek, to revive a judgment against Daniel Hehn, entered on 15th November, 1834. Hannah Hehn, in 1812, was declared a lunatic, and John Klapp was appointed her committee. He died about the year 1850, and Daniel Wenriek was appointed in his stead.

This was a writ of quo warranto, issued at the instance of the school directors of East Pennsborough township, to Gardner and others, to show by what authority they acted as school directors over a portion of the township. The defendants represented themselves as acting under the authority of an Act of Assembly, passed on 21st March, 1852 (Acts, p. 377), as follows:— Section 11.

Ejectment by George Funk, surviving executor of the will of George Funk, deceased, v. Sophia Morrison and others, for a house and lot of ground in Bedford. The writ was issued on 2d February, 1852. Plea, not guilty. The ground in dispute belonged to George Funk, who by his will, proved in 1814, directed it to be sold by his executors. The executors sold it in December, 1814, to Samuel Funk for $1300.

<p>1. A case will not be reversed on account of an expression of opinion by the Court as to which of certain witnesses are most entitled to credit, or upon evidence in the case which, however, is submitted to the jury for its decision.</p> <p>2. In an action of trespass for injury inflicted by the defendant upon the plaintiff in an attempt by the plaintiff to take a horse and carriage from the possession of the defendant and another, it was competent and material for the plaintiff to show that he was authorized by the owner of the horse to take it from the possession of the defendant.</p> <p>3. Where the injury for which the action was brought was inflicted with a knife, it was not error in the Court to instruct the jury that if the attack was wanton and unprovoked and with a deadly wjpapon, they might give exemplary or even vindictive damages if necessary to repress the practice of carrying deadly or dangerous weapons, even though there was no proof of any such practice in the community. The direction was right without the reason, and the jury might infer that unless it were necessary to repress such practice vindictive damages should not be given.</p> <p>4. In an action of trespass for an injury inflicted with a knife evidence of his general good, peaceable character was not admissible on part of defendant for the purpose of rebutting malice. Evidence of character is not admissible in civil suits except where it is directly in issue, and where from, the nature of the issue such evidence is of special importance in the suit trying._ Whether the act charged or complained of be indictable or not is not material.</p> <p>5. In such an action there was offered on part of the defendant, without qualification but generally, the record of an indictment against him containing three counts, two of which were for assault and wounding with intent to kill and murder, and the third for assault and wounding, being the same occurrence as was the subject-matter of the suit trying, and in which proceeding the defendant was acquitted on the first two counts, and convicted upon the third and sentenced, it being stated by the judge to have been offered for the purpose of showing the punishment already received and of disproving an intention to kill: — ■</p> <p>It was Held not to have been error in the Oourt to charge that the record was strong evidence that an assault and battery had been committed, but that it was not conclusive that the defendant did not stab the plaintiff, as if the knife were not drawn and used till after the fight commenced and the blood became heated the killing would not have amounted to mwder; yet that the absence of an intention to kill did not shelter the defendant from civil responsibility to the party injured.</p>

Appeals from the decree of the Orphans’ Court of Lancaster county, on the account of Adam Bare, surviving executor or trustee under the will of John Meixel, deceased. There were two appeals in this matter, one by John L. Martin, for his wife and John Strohm, claiming as residuary legatees under the will of John Meixel, Senior; and another by Adam Bare, the surviving executor. John Meixel died in May, 1822, leaving both real and personal estate.

<p>1. To affect a bank, to which application is made for a loan on mortgage security, (a mode of business out of the usual course of bank accommodation), with notice of an unrecorded deed, actual notice should be brought home to the president and directors or to some other officer to whom such matters have been specially given in charge. Yague rumor to the cashier of the bank of such a deed was not notice to the bank or sufficient in law to put it to inquiry.</p> <p>2. Marriage articles relating to one-half of the female’s real estate, executed previous to the marriage, were not recorded, and subsequently the husband and wife executed a mortgage of her real estate to a bank for the purpose of procuring a loan. Though the cashier testified that he heard the marriage articles frequently talked of in and out of the bank, whilst the loan was negotiating — that they were spoken of before the board of directors, but whether in session or individually he could not say — but that he never heard whether they regarded real or personal estate and did not know who were the trustees, and did not certainly know from whom he acquired the knowledge and had never informed the counsel of the bank, applied to in the- negotiation of the loan, of the existence of the marriage articles.</p> <p>, It was Held, that the Court might have charged that this did not amount to notice to the bank of the unrecorded articles, instead of referring the evidence to the-jury to decide whether such notice to the bank had been proved or not.</p> <p>3. It was not a leading question to ask a witness whether it was or was npt made known to the Board of Directors of a bank (of whom he was one) that certain property proposed to be mortgaged to the bank bad been previously conveyed; or whether he as a director had or had not any knowledge of such conveyance. .</p> <p>4. The statement of the witness that the existence or otherwise of the articles in question vras referred to the president of the bank (who it appeared was a lawyer) and that at the next discount day it was made known to the board that the property was clear of encumbrances, was pertinent and competent evidence on the part of those claiming under the mortgage to the bank.</p>

<p>This was an action of dower, by James Gray and Mary Ann his wife v. William C. McCune, brought on 23d June, 1853, to recover dower in two tracts of land, formerly the property of John McCune, the first husband of the said Mary.</p> <p>John McCune aforesaid was seised of three tracts of land, one, on which he lived, containing about 190 acres, and another of 75 acres, chiefly timber land, and the third containing about 200 acres. By a first wife he had five children, William McCune, the defendant, being one of them. So owning the said lands, he became married to the said Mary Ann about 1824. By deed, dated 13th September, 1832, he conveyed to his son William, the defendant, 45 acres of the timber tract, including a small tenant house and four acres of clear land, $1000 being mentioned as the consideration of the deed. And by another deed, dated 11th March, 1883, he conveyed to the defendant about 70 acres, being part of the tract on which he lived, $1500 being stated as the consideration. His wife Mary Ann, plaintiff, did not join in either of these conveyances. Both deeds contained a covenant of special warranty against him and his heirs.</p> <p>By his will, dated 27th December, 1834, he devised to his wife Mary Ann certain personal property; and he devised to her and her five children, “to them, their heirs and assigns for ever,” the plantation he then lived on, to enjoy the same for their use and support, viz., to his wife Mary Ann, the one-third part of the rents and profits during her natural life, and her five children to enjoy the remainder of the rents and profits; and after the death of their mother, and after the youngest child came of age, they might sell the land. He also gave to her said five children a piece of woodland, containing above 15 acres. He devised to his other daughters certain real estate. He died in June, 1835. The will was proved on 26th June, 1835. On the trial it was proposed, on part of the plaintiffs, to prove the annual value of the land, in which dower was claimed, since the death of John McCune. The evidence was allowed so far as respected the value of the lands since the suit was brought. Exception on part of plaintiffs.</p> <p>On part of defendant was offered an instrument of writing, signed by Mary Ann McCune, the widow, under seal,-and having two witnesses; to be followed by proof that she procured the will to be made by which the devises to her and her children were made in consideration of the conveyances made to William McCune; and that she since the death of her husband declared that she had executed the release for the purpose of confirming the title to him clear of claim of dower on her part.</p> <p>The instrument was addressed “ To all to whom these presents shall come.” In it was stated- that by the will of her husband, bearing date, &c., provision was made for her in lieu of her right of dower : and it proceeded, “ now know ye that I, the said Mary Ann McOune, do hereby agree to take under the provisions of said will and testament, and accept of the bequests therein to me, in lieu and full satisfaction of right of dower, at common law. In witness,” &c.; dated 3d July, 1835. It was under seal, and had to it two witnesses.</p> <p>The paper was objected to, — first, as not being a release. 2. Because neither the defendant nor any one. under whom he claims, nor the land in question, is referred to in the paper. 3. Because no benefit or consideration passed to her from the defendant.</p> <p>By consent the offer of the defendant was to be put into the form of a special plea, and the plaintiffs to reply.</p> <p>It was further objected that the paper was nothing more than an offer to take under the will; and further, that it was not competent to prove by parol the meaning of the paper. The evidence was admitted, and exception was taken.</p> <p>A witness testified that Mrs. Gray, in September, 1849, said to him that she had desired her husband to leave her the property she had in possession — that she desired him to leave her property separate from that of William, and he should hav'e his property separate from her — that she was satisfied; — that she said she had not signed the deed, but had signed an agreement of release to the same effect.</p> <p>Another witness was examined, who testified that he was the executor of the will of John McCune — that it was reported that the widow was not satisfied, and that he got the release drawn, supposing it would bind her, and that she signed it in his presence. He said that the widow got the property which had been bequeathed to her. He said further that the property given to her and her children wras more valuable than all the rest of the estate left by the testator.</p> <p>Graham, P. J., inter alia, charged that the paper alone would not defeat the plaintiffs’ claim, but that he considered parol evidence admissible to ascertain the object and intention of the parties in its execution; and he instructed the jury that if they were satisfied that the paper was intended by Mrs. Gray, at the time it was executed, as a release of dower in the lands sold to the son, in consideration that her husband had yielded to her request in making his will and had devised to her the most valuable part of his estate, their verdict should be for the defendant.</p> <p>Verdict for defendant.</p> <p>Error was assigned to the rejection of evidence of the value of the land before suit brought, and the value of the timber cut by defendant in the last year; to the admission of the paper signed by the widow, and parol evidence in relation to it; and to the part of the charge referred to.</p> <p>The case was submitted.</p>

<p>Error to the Common Pleas of' Berks county.</p> <p>Action of assumpsit, brought January 3, 1851, by Daniel Zacharias, executor of the will of Matthias Zacharias, deceased, v. George Zacharias. The declaration was for money had and received, with the common fnoney cotints. Pleas, non assumpsit and non assumpsit infra sei annos.</p> <p>Matthias Zacharias, the plaintiff's testator, came from Germany to this country, many years ago, and lived with and worked for Daniel Zacharias, the father of the defendant. He saved some money which he placed in the hands of Daniel Zacharias, last mentioned, to take care of it for him, and lend it out upon interest, which he did. He lent some of it to Adam Barnhard; and it was alleged, on part of the plaintiff, that some of it was lent to the defendant, and his bends taken therefor.</p> <p>Matthias Zacharias continued to live with Daniel Zacharias until shortly before Daniel’s death, when he went to live with Oeorge Zacharias, the defendant, where he died in June, 1850.</p> <p>Shortly before his death, Daniel made a will, in which he directed that if Adam Barnhard did not pay the one hundred pounds, that the same should be paid by his executors and deducted from his daughter “ Catharine’s inheritance.” Daniel Zacharias, the father of defendant, died in 1827.</p> <p>It appeared that the amount of the principal of the bond of Adam Barnhard, with seven years’ interest, viz., $378.67, was, on 31st December, 1832, paid to the defendant by o.ne of the executors of his father’s will; and in the receipt it was stated that the amount was “received for Matthias Zacharias.”</p> <p>It was testified that the defendant and his wife took good care of Matthias.</p> <p>Edmund Zacharias, a son of the plaintiff, testified that in 1850 he told the defendant that he knew he had received seven or eight hundred dollars of the testator’s money — that the defendant said he had, but nobody could prove it. He said his father put the money of Matthias out on interest, and he got the money from his father and gave him bonds for it; and that when his father came to die, he (the defendant) promised him that he would take care of Matthias as long as he lived, and would also take care of 'his money, and then his father gave him back his bonds. He said that when Matthias came to him he paid him wages, and after he could not earn wages, he worked for his board — that he asked the witness to say nothing about the last will of the decedent, and said he would “ satisfy my father.”</p> <p>Jones, President Judge, charged that it is only when a trust is of the kind exclusively cognisable in equity, that it is beyond the operation of the statute of limitations. The defendant received the money from the executor in 1832; at any time after that he was liable to be called on for it by Matthias Zacharias, and the statute began to run from the time the money was received. He further charged that acknowledgment, to take the case out of the statute, should be sufficiently definite to found an action upon as a distinct contract; and if so, if made to a stranger, it will -not avail.</p> <p>Verdict for defendant.</p> <p>The charge, with respect to the statute and the acknowledgment, was assigned for error; and also that the Court induced the jury to believe that $378.67 was all the money the defendant received.</p>

<p>1. Purchasers in buying land subject to a widow’s thirds received a deed, “under and subject to a dower charged thereon;” and retained out of the. purchase-money the amount of the said charge and by an agreement under seal agreed to pay all charges on the estate to the amount of the purchase-money. They conveyed to others without charging the premises with the said thirds, receiving the whole purchase-money.</p> <p>Held, that having been subsequently compelled to pay the thirds, the same could not be recovered back from a subsequent purchaser, though in the conveyance to the latter the land was described as having been formerly conveyed, “under and subject to a dower charged thereon.”</p> <p>2. The reference to the encumbrance in the subsequent conveyances was for the protection of each vendor in the event of the lien being enforced against the estate by the heirs; but it did not enlarge the rights or restrict the liability created by the express agreement referred to and the implied one with subsequent vendees.</p> <p>3. The claim of the plaintiff was not rendered more effectual by suing in the name of those who conveyed to the defendant.</p>

<p>Appeal from the decree of the Orphans’ Court of Lancaster county.</p> <p>Christian Newswanger died in 1845, leaving a widow and three children, one of whom, Barbara, was married to Benjamin Gfochenaur. Benjamin G-ochenaur, the husband, and David Newswanger administered on his estate in March, 1816, and submitted an inventory Amounting to $1652.52. Benjamin Gochenaur, the husband, received a portion of the estate into his hands. He died on 31st December, 1851, leaving a widow, (said Barbara,) hit no children. The administrators of his estate, on 26th January, 1852, submitted an inventory, amounting to above $1300. His. widow claimed $300 under the Exemption Acts, out of the personal estate of her husband, and the same was set apart for her. The administrators of G-ochenaur’s estate on 19th February, 1853, submitted an account, exhibiting a balance of $5136.55|-, in their hands for distribution. To this account exceptions were filed on 19th March, ■ 1853, for B. Gochenaur’s widow, one of which was to the effect that the accountants had not paid to her certain money which Benjamin G-ochenaur, her husband, as administrator, had received on account of her share in her father’s estate. April 11, 1853, on motion the Court appointed an auditor, to report distribution of the balance among those entitled. The heirs appeared, but no creditors appeared except the widow, who by her exceptions to the account, it was said, made the first attempt to demand either in her husband’s lifetime or since his decease, the amount in controversy.</p> <p>It appeared that the heirs of the estate of Newswanger made amicable partition of the estate real and personal. The auditor considered the share of Barbara Gochenaur in her father’s estate to be about $2193, and that her husband had received of it about $1986.</p> <p>One witness testified that he saw him draw $415, and he said “ It is my wife Barbara’s, and it is to be hers.” This was in 1850.</p> <p>Another witness stated that Benjamin Gochenaur told her that he had got from the notes and articles he bought at the vendue about $700. This was in 1847. He said he would take this money and pay his debts on which he wais paying interest, but that it -was Barbara’s money, and “she shall have it.”</p> <p>Another testified that she was present in 1850, and'saw Benjamin Gochenaur get $700. He said it was his wife’s; he ought not almost to take it to pay his debts — that was all he said. But, she added, he always said it was hers and she should have it again. Ort cross-examination she said, every time he received any money, he said “ it was his wife’s and should be hers.” He said he would use it. She said that she saw him get money in 1846 and 1847.</p> <p>The co-administrator stated the amount received by Benjamin Gochenaur on account of his wife’s share at about $1786.</p> <p>The auditor allowed her claim, referring to authority for the position that a reduction of possession of his wife’s property by the husband was not identical with conversion, but only evidence of it —that it was primáfaeie evidence of conversion, but that the presumption of intent may be repelled by evidence. In relation to the matter of reduction he referred to 12 Vesey 497, Baker v. Hall; 16 Vesey 413; 4 Rawle 477-8, Siter’s Case; 5 Whar. 138, Hind’s Estate; 6 W. & Ser. 290, Timbers v. Katz; 1 Barr 329, Gray’s Estate; 2 Barr 71, Woelpper’s Appeal; 5 Barr 157, Rogers v. Fales. He observed that this case did not rest upon subsequent-' admissions by the husband, but upon his declarations at the time he received the money. He allowed $1786, with interest from the 1st of May, 1850, which was several months previous to her husband’s death.</p> <p>Exceptions were taken to the report. The Court confirmed the report except with respect to the interest which accrued in the lifetime of the husband, which, referring to McGlinsey’s Appeal, 14 Ser. & R. 64, was disallowed.</p> <p>Exceptions were filed: The first being that the Court erred in taking jurisdiction of the claim of the widow, inasmuch as the estate was solvent. 2. In allowing the claim or any part of it. 3. In allowing interest.</p>

<p>1. Two persons, IV. and It., being liable as sureties for another, and one of them holding a judgment against the debtor for a debt paid for him, agreed in writing under seal, in 1847, that if any loss is sustained in final settlement of the debts and claims paid by them for the said debtor, the loss sustained by them be equalized between them.</p> <p>In 1849, another agreement in writing was made between the parties, in which provision was' made for payment of the joint debts of the parties thereto, and for a settlement after the expiration of a lease by R. to "W. for six years, it being stated in the said second agreement that “it is understood between the parties that anything herein contained shall not render void or of no effect an article of agreement made September, 1847, in reference to losses that might be sustained in consequence of the liabilities for J. P.”</p> <p>It was Held, that the second agreement did not prevent a suit being maintained on the first agreement before the expiration of the lease — the first agreement was not merged in the second — the agreements were distinct, one applying to liabilities for which they were sureties, the second to other debts due by them jointly, — and the first agreement was the subject of a separate suit.</p> <p>2. Evidence of payments by defendant on the joint debts, was not admissible in an action on the first agreement.</p> <p>3. In an action on the first agreement it was proper evidence for the plaintiff to show that before the suit was brought he had arranged some of the debts for which he and the defendant were sureties, though he had not actually paid the substituted securities till after the institution of the suit, but before the trial.</p> <p>4. AVhere two persons are jointly and severally bound in unequal sums as sureties for another person, an agreement in writing under seal between themselves to equalize the loss will be obligatory and may be enforced in an action at law.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an action of covenant, by Daniel Hartman, administrator of the estate of W. Callender, deceased, on a policy of insurance, issued by the defendants on the life of the plaintiff’s intestate, in which he was defeated on the ground of misrepresentations made by the deceased, and judgment was entered in favor of the defendant: see 9 Harris 466. On this judgment the defendant issued a fi. fa. against the plaintiff for the costs to be levied de bonis propriis, and on motion, the Court below refused to set it aside, and hence this writ of error.</p>

<p>Where copartners purchase goods, together and give a promissory note therefor with one of them as maker and the other as endorser, the latter is not liable on his endorsement unless he be duly notified of the dishonor of the note.</p>

<p>1. An administrator has no right to alter the terms prescribed by the Orphans’ Court in an order of sale; but if he do so and the terms under which the sale has been made are reported to the Court and the sale is confirmed, they will have the same effect as if prescribed in the order.</p> <p>2. It is irregular in an administrator without the leave of the Court, to extend the time of payment prescribed in the order. If an extension of payment be material to those interested, the matter should be reported to the Court, to direct a resale or otherwise order in the premises.</p> <p>3. A purchaser under an order of sale directed by the Orphans’ Court, who has utterly failed to comply with the terms of sale, has no estate in the premises legal or equitable; and a judgment by a third party against him at such time is no lien on the premises.</p> <p>4. By the terms of the sale, confirmed by the Orphans’ Court, one-half of the purchase-money was payable on 1st of April — but no part was then paid. On 4th April a judgment in favor of a third person unconnected with the sale was entered against the purchaser. On 19th May, 1849, the administrator conveyed to the purchaser receiving a portion of the first payment in cash and a judgment bond with surety payable on 1st June, 1849, for another portion of it; and other judgment bonds for the balance of the purchase-money ; and .judgments were entered on the bonds on 21st May, 1849, several months before the revival of the first judgment. Held, that the judgments to the administrator were entitled to payment in preference to the first judgment.</p>

Ejectment by Daniel Maulfair v. George Uhler, John Hean, and Eliza Ashmead, for two pieces of improved land. This was the same property in dispute in the case of Ashmead v. Hean, 1 Harris 584. The property formerly belonged to John Hean. He was indebted to Edward Ashmead in two bonds, one for $1000, payable on 1st May, 1841, the other for $248, payable on 1st April, 1847; and Ashmead placed the bonds in the hands of counsel for collection.

<p>Certiorari to the Court of Quarter Sessions of Clearfield county.</p> <p>In the matter of the exceptions to the confirmation of the report of the viewers appointed to view and lay out a road, from the public road between James Gallaher’s and John Borabaugh’s, to the town of New Washington, in said county.</p> <p>On the 30th of April, 1850, a petition was presented to the Court of Quarter Sessions of Clearfield county, signed by twenty-nine of the citizens of Burnside township, in said county (nineteen of whom subsequently signed petitions for reviews, and remonstrances), praying the appointment of . viewers to view and lay out a road “ from the public road between James Grallaher’s and John Borabaugh’s, at the north-east corner of James Gallaher’s fields, to the town of New Washington.” On the same day viewers were appointed, and the order was issued. At September Sessions, 1850, the viewers reported a road from the point above named “to a public road near New Washington,” which.report was confirmed nisi.</p> <p>At the ensuing December Sessions a remonstrance was presented against the confirmation of the report, and the matter was continued. At the same time a petition, signed by twenty-nine persons, was presented, praying for'a review, which was endorsed — “not a majority of original viewers of former petition. By the Court.”</p> <p>At February Sessions, 1851, another petition for a review was presented, which was granted, and the order issued. No action was had on the original report.</p> <p>At May Sessions, 1851, the reviewers reported a road “from the north-east corner of James Gallaher’s field, to the main street of the town of New Washington,” one mile and six rods in length, which was confirmed nisi. The original report, at the same time, was confirmed absolutely. At the ensuing September Sessions, the review was marked “ continued;” and at the same time another review was granted on petition, and viewers appointed, who reported at December Sessions, 1851, a road similar to the one reported by the former reviewers, between the same points, 287 perches in length. This report was confirmed nisi.</p> <p>At February Sessions, the last-mentioned report was set aside, and a petition signed by sixty-eight of the citizens of Burnside township was presented, praying the Court not to confirm the original report, and asking for a view, which was granted, and viewers appointed. At May Sessions, 1852, they reported a road, substantially the same as that reported by the two former sets of reviewers. Exceptions were filed by one as attorney of the original petitioners. This report was confirmed nisi. At September Sessions, following, this report was marked “ referred back to viewers to report as to damages,” and a remonstrance against the original report, signed by eighty-three of the citizens of Burnside township, was heard and filed of record. At December Sessions, 1852, another remonstrance of the same character, and praying the confirmation of the last report, was also heard and filed. The report was referred back to the viewers for informality, and was returned to the Court, reporting the damages at $20, and was accompanied by releases for half that amount. This report was marked “ not confirmed. By the Court.” An order to open the road according to the original report, was .in the hands of the supervisors, when the certiorari in this case was issued.</p> <p>It was assigned for error: 1. The Court erred in confirming the original report, because the viewers neglected to give notice, obtain releases, and report damages, as required by the Act of the 6th of April, 1843, the provisions of which were extended to Clearfield county by the Act of 7th May, 1844-. 2. It was error to confirm the original report absolutely, and, at the same time, confirm the review nisi. 3. The original report should not have been confirmed, because the viewers did not confine themselves to the points named in the order, but laid out a road to an entirely different terminus. 4. In the original report, as is shown by the face of the record, the road was not laid out “ with a due regard to private property.” 5. It was error to refuse to grant a review on the petition presented at December Sessions, 1850. 6. The report of the viewers presented at May Sessions, 1852, when it was returned corrected, after haying been referred back for informality, should have been confirmed.</p>

<p>Error to the Common Pleas of Columbia county.</p> <p>John C. Drake & Co. obtained a judgment, on 9th September, 1852, against A. B. Knabb, for $380.18.</p> <p>Knabb had brought an action of trespass against John Robison to November Term, 1848, for seizing and selling certain personal property, exempt by law from levy and sale upon execution ; and on 12th September, 1858, he obtained judgment for $200. It was said that the judgment was for the value of the goods, with exemplary damages. Sixty dollars of the amount of the judgment was assigned by Knabb, but the whole was unpaid, when Drake & Co. had an attachment execution issued upon their judgment against Knabb, with notice to Robison as garnishee, and had $140 of the amount of the said last judgment attached.</p> <p>A case was stated in which Drake & Co. were plaintiffs, and Knabb was defendant, to determine whether the $140 was liable to attachment.</p> <p>Conyngham, J., considered that the exemption Act protected the property itself, but not its representative. That after sale of the property Knabb could have maintained either replevin or trespass ; that by a recovery in trespass the purchaser’s claim was affirmed; and he considered that the proceeds would be as liable to attachment as the proceeds of a voluntary sale. February 9th, 1854, he directed judgment for the plaintiff for $140. Such judgment was assigned for error. ..</p>

<p>Appeal from the decree of the' Common Pleas of Lycoming County, directing distribution of certain proceeds of sale of real estate of John E. Youngman, sold by the sheriff on 3d March, 1854.</p> <p>John R. Campbell, on 8th November, 1848, obtained a judgment in the Common Pleas of Lycoming county, against John E. Young-man, for $3000, on a single bill, with warranty of attorney. To December Term, 1848, a fi. fa. was issued on this judgment, and personal property was levied on and sold for $971.50, and $946.97, the balance, after deducting costs, was appropriated to this judgment. To September Term 1849, a fi. fa. for the residue was issued, and real estate of defendant was levied on. Venditioni exponas to December Term, 1849, and- on 8th of December, 1849, one piece of property was sold to John R. Campbell, plaintiff, for $200, and another piece to George W. Youngman, for $500. Youngman having neglected or refused to pay the amount of his bid, an action of assumpsit, for its recovery, was instituted by the sheriff, to April Term, 1850, in which, on the 7th of February, 1852, a verdict was rendered in favor of plaintiff for the sum of $564.91.</p> <p>On the 15th of February, 1851, the Court opened the judgment of John R. Campbell against John E. Youngman, on defendant’s application and allegation that the judgment was paid. On the trial of this case, the plaintiff showed his judgment, executions, and sales, and was charged with the proceeds of the sales of the personal and real property, no objection being made at the time by the plaintiff or defendant, or any creditor of John M. Young-man. The defendant, besides these credits, showed a receipt from John R. Campbell, to him, dated November 8,1848, for two notes, di-awn by J. M. Cummings in his favor, one for $1011.22, at twelve months: and one at eighteen months, for $1041.57, received by Campbell as collateral security; and proved that Campbell had given up these notes to Cummings, the drawer of them, whether with or without Youngman’s consent, did not appear. His consent, however, was not shown. These notes, with the proceeds of sales of personal and real property, left a balance due Youngman from Campbell; and on 5th February, 1853, a verdict ivas rendered for the defendant.</p> <p>Youngman had brought suit against Campbell, to April Term, 1850; and on the 8th February, 1853, a verdict was rendered in Youngman’s favor for $371.66. On the trial of this case, the judgment of Campbell for $3000 was shown, and that it had been opened; and that on 5th of February, 1853, there was a verdict for plaintiff for the $371.66, as before stated; judgment was entered by consent on the verdict on the 8th of February, 1853. The Court instructed the jury in this case that the plaintiff was not barred from recovering, by the verdict and judgment in the case of Campbell against Youngman; that even if the plea of set-off had been put in, the defendant therein could not have recovered, as it was neither an adversary suit, such as could have been arbitrated, or an action pending.</p> <p>On 8th September, 1853, the money arising from the sale of the real estate purchased by Greorge W. Youngman, was paid into Court by the executors of the sheriff.</p> <p>On 30th January, 1854, was presented the petition of John R. Campbell for leave to take the money out of Court.</p> <p>On 6th February, 1854, the answer of the creditors of John E. Youngman to above petition was filed, in which the facts set forth in the petition were admitted, but it was denied that there was any appropriation of the fund, by the Court, or that the facts as stated, amounted to such; and alleging further, that the judgment of John R. Campbell was fully paid, exclusive of the $500 alleged to have been claimed as a credit by said John E. Youngman, and that there was the sum of $504.31 due by Campbell, applicable to the payment of his judgment against John E. Youngman, after fully paying the same, which would have been recovered in that issue, had the law permitted it.</p> <p>At the time of the sale of John E. Youngman’s real estate by the sheriff, to wit, on the 6th of December, 1849, there was one judgment prior to Campbells, in favor of Jacob Rodarmel, entered on the 3d of June, 1848. The judgment, under which the fund in Court was claimed • adversely to John R. Campbell, was in favor of Louis Troutman. It was entered on the 24th of November, 1848. The name of an attorney for him was on the record. No application had leen made by either of the judgment-creditors of Youngman, to have the money brought into Court, although the sheriff had made return to the writ of venditioni exponas, in due time, that the real property had been sold; or to interplead or be heard on the trial of the case of Campbell against Youngman. Rut on the 7th of February, 1853, a motion was made, and a rule granted on George W. Youngman, the purchaser of part of the real estate of John E. Youngman, and the judgment-creditors of John E. Young-man to show cause on the first day of the then next term, why the judgment in favor of the sheriff, except so much of it as might be applied to the Rodarmel judgment, should not be marked for the use of L. M. Troutman.</p> <p>On the 8th of the same month, a motion was made by counsel, to show cause why the judgment should not be marked for the use of John B. Campbell. Both these rules were discharged by the Court, that the rights of neither party might be prejudiced, when the question of distribution came up.</p> <p>Jordan, J., stated that when the credit of $500 with its interest was claimed and allowed John E. Youngman, Campbell had a lien prior to that of Troutman, and that amount having been credited to Youngman and charged against Campbell, it would be wrong to permit Troutman to take the money out of Court. That Troutman, although not a party to the suit of Campbell against Youngman, or Bennett (the sheriff) against Youngman, had counsel in Court, who, from December, 1849, till February, 1853, made no claim to the proceeds of sale of the real estate.</p> <p>On 3d March, 1854, the fund in Court was directed to be paid to Campbell, after deducting the prior lien in favor of Rodarmel.</p> <p>To such decree exception was taken.</p>

<p>Errur, to the Common Pleas of Union county.</p> <p>This was an action' of partition in the name of George Brown, trustee of the German Reformed Congregation, worshipping in St. Peter’s Church, Kelly township, Union county, v. The Evangelical Lutheran Church and Congregation, worshipping in the same church, and attached to the West Pennsylvania Synod. Plea, non tenent insimul.</p> <p>On the 30th August, 1802, there was conveyed to Christian Zerbe and George Renninger, above seven acres of land, then in White Deer township, now Kelly township, Union county, for the consideration of <£20.14, “in trust to and for the use of building or erecting a school-house and a German Lutheran Church on the same, and a burying ground.”</p> <p>On the 24th November, 1815, Zerbe and Renninger executed a deed, in which it was recited that “ the members of the Presbyterian Reformed Congregation have contributed towards purchasing the aforesaid piece or parcel of land, and willing to contribute towards building a churchtherefore, in consideration of the sums of money contributed as aforesaid, and to be contributed towards building a church, they have “ granted, permitted, allowed, and confirmed the full rights, liberty, and privilege, unto the members of the said Presbyterian or Reformed Congregation, in common'with the members of the Lutheran Congregation, of, in, and to the aforesaid premises and church, when built.”</p> <p>It was stated in evidence that the school-hous'e was constructed soon after the purchase of the lot, in the construction .of which members of both congregations united.</p> <p>Articles of association, dated the 15th of May, 1819, were entered into by members of the two congregations, in 'which it was, inter alia, stated that they had resolved to erect jointly a house for the worship of God, “ on a lot which has been purchased by both congregations, and appropriated for that purpose.” In one of the articles it was provided that “ the members of both congregations shall have an equal right and interest in the church and land belonging to the same;” in another, that “the members of both congregations shall have their time of worship alternately,” &c.; and in the seventh article it was, inter alia, provided, that each one that will be a member of the church, shall contribute “towards the erection and keeping in repair of the same, and in consideration for so doing, he and his heirs, with all others, shall have an equal right, share, and claim, in and to said church, the church-yard, and the land belonging to the same.”</p> <p>In the 13th article it was provided that all church furniture, necessary to have, should be purchased jointly, &c., and to be the property of one as much as of the other congregation.</p> <p>The contributions towards building a church were, by Lutherans, $912; by members of the Reformed congregation, $177; and by strangers, $73.</p> <p>The premises were used and occupied for a number of years-by the two congregations.</p> <p>. In 1846, the Lutheran congregation procured a charter of incorporation. Afterwards this action of partition was brought by the Reformed congregation.</p> <p>It was alleged that a grave-yard was commenced some time before the written purchase of the land, which has been gradually enlarged, till it occupies nearly an acre, and requires additional enlargement.</p> <p>It did not appear whether or not the Reformed congregation was concerned in the original purchase of the premises.</p> <p>Wilson, President Judge, in his charge observed, that so far as the articles of association were confirmatory of the deed from the trustees a title passed, for, without the consent of the Lutheran congregation, the trustees had no power to convey any of their rights and privileges; but he observed that the association was by the members of the two congregations, for the purpose of erecting and building, and securing to each contributing member and his heirs, a right and claim in the church, &c., and not to the congregation and its successors. He therefore charged, that no interest had been shown in the plaintiff, the Reformed congregation, to sustain the action.</p> <p>But he further charged that the policy of the law forbid the partition of a grave-yard, or a sale under such a proceeding; that the laws authorizing and regulating partition, do not contemplate the partition of property situated as the premises in question.</p> <p>Verdict was rendered for the defendants.</p> <p>It was assigned for error that the Court erred, first, in the instruction that the plaintiffs had not such an interest or title in the premises as would sustain partition; second, that the policy of the law forbid, the partition of a church or grave-yard; and, third, in directing a verdict for defendants.</p>

<p>Error to the Common Pleas of Union county.</p> <p>This was an action in ease by Jacob Farley v. John L. Fisher, for obstructing an alleged private right of way, to the damage of the plaintiff. The action was brought in 1851. No special damage was claimed in the narr. The plea was, not guilty.</p> <p>The father of the plaintiff owned a tract of land of about 104 acres, taking possession of it about 1810. He either made or used a road previously existing through adjoining lands, and it was used by the family till Jacob Farley, the plaintiff, became the owner of his father’s tract in 1827; and he used the road till it was obstructed by Fisher, who, in 1850, purchased some of the land over which the x’oad ran.</p> <p>On tlie trial points were submitted on part of the defendant: 1st. That if the jury believed that the people generally in the neighborhood of this road, have used it as a horse and foot path without hindrance or obstruction for fifty years, then the plaintiff has failed to show that it is his private way, and he could only recover by averring in his declaration, and proving some extraordinary and special damage suffered by himself. 2d. That under the pleadings and evidence in this cause, if it has been used as a public foot path, the plaintiff cannot recover. 3d. That if the jury believe, that where this right of way is claimed, had been uninclosed woodland, and was cleared and fenced by the defendant for the purpose of farming and tillage, he was protected in doing so and authorized by the Act of Assembly of the 25th April, 1850, and the plaintiff cannot recover.</p> <p>The Court instructed the jury that a continued, uninterrupted, and adverse use of a way under a claim of right and with the knowledge and acquiescence of the owner of the land over which it passed for a period of twenty-one years or upwards, will authorize a recovery in damages by the person claiming such right which is interfered with.</p> <p>The first point was answered in the affirmative. In respect to the question involved in the second point, the Court submitted to the jury to inquire whether the evidence showed a private right by such user by which the Court intimated such a right of way could be acquired; but instructed them that if the way had been used as a public foot path, common to the use of any person who had occasion to use it as a foot path, the plaintiff could not recover under the evidence and pleadings in the case. As to the third point, the Court instructed the jury that the Act of 25th April, 1850,-in relation to roads through uninclosed woodland, did not give the owner of the land the right to obstruct a road by fencing where a right of way had been acquired by use for the length of time from which such a right would be presumed.</p> <p>The jury being out, the had them informed that when they agreed on their verdict they should seal it and bring it into Court the next morning. After sealing their verdict they separated, and the next morning they rendered a “verdict for the plaintiff.” The jury were sent out again to determine an amount of damages — the defendant’s counsel objecting. They afterwards, 25th February, 1853, found for plaintiff one dollar.</p> <p>It was assigned for error, — 1 and 2. That the Court erred in the answers to the first and second points. 3. In submitting to the jury to find whether this was a public or private road, it being alleged that there was no evidence of a private right of way. 4. In refusing to have the verdict recorded as first rendered.</p> <p>The 21st section of the Act of April 25, 1850, is as follows:—</p> <p>“ No right of way shall hereafter be acquired by user, where such way passes through uninclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to inclose the same, as if no such way had been used through the same before such clearing and inclosure : Provided, that the provisions of this section shall in no way affect any suit or suits now pending in any of the Courts of this Commonwealth in relation to any right of way or any other matter embraced in this section.”</p>

Appeal by John F. Dentler, from the decree of the Common Pleas of Northumberland county, directing distribution of certain proceeds of sale of real estate sold on execution on a judgment against Levers & Quiggle. Charles Kelchner was the owner of the house and lot sold, and whilst owner, viz. on 2d January, 1843, a judgment was entered against him in favor of J. P. Hackenburg. It was revived to January Term, 1848.

This was an issue wherein Peter R. Hoffman, who intermarried with Sarah McCarty, was plaintiff, and Lloyd McCarty was defendant, and was formed to try the validity of an instrument alleged to be the will of Ann McCarty. The alleged will was dated 22d April, 1847, and Ann McCarty died in that year. A caveat to its being admitted to probate was filed on 14th January, 1848, by Lloyd McCarty, the brother of the deceased. In the caveat it was objected: 1.

J. and C. Cummings. Samuel Gibson had sold land to Andrew J. and Charles Cummings for $2400, and to secure the price of it, he received bonds and a mortgage on the land sold for $1900, and a judgment note for the remaining $500. The mortgage was recorded on the 1st September, 1851, and judgment was entered on the note the next day; and in February following judgments were entered also on the mortgage bonds.

<p>Error to the Common Pleas of Union county.</p> <p>This was an action of trespass by Henry W. Snyder v. A. Thomas, sheriff, and others, for taking and carrying. away 47 barrels of flour from a mill formerly the property of Samuel Long. The plea was, not guilty.</p> <p>Long was the owner of the mill in 1850, in which year it wa3 levied on and sold as his property by the sheriff; and, on the 16th December of that year, the sheriff executed a deed to Jacob W. Smith, who, on the 18th December, conveyed it to Michael Wagner.</p> <p>Long continued to occupy the mill, transacting business in the name of Wagner. It was alleged, on part of defendants, that the arrangement was a contrivance to hinder or defeat the creditors of Long.</p> <p>On the part of the plaintiff it was alleged that he furnished money to Wagner with which to buy wheat, of which flour was to be made for his use; and that a portion of this flour was taken by the sheriff and those acting with him.</p> <p>On part of the plaintiff was shown a note as follows: — ■</p> <p>New Berlin, February 11, 1852.</p> <p>Henry W. Snyder, Esq.,</p> <p>Sir, — I have bought one hundred bushels of wheat, now in the mill. If you wish to have the wheat, you will have to send me the money, &c.</p> <p>Send the money by the bearer, Samuel Long, and take his receipt for the same. Signed, Michael Wagner.</p> <p>Received, February 11, 1852, fifty dollars on the above order.</p> <p>Samuel Long.</p> <p>Also a receipt as follows:—</p> <p>$300.00.</p> <p>Received, March 11th, 1852, of H. W. Snyder, three hundred dollars in trust, for which I am to account in grain purchased, and to be purchased for him. Signed, Michael Wagner.</p> <p>In relation to the receipt for $300, a witness, James Harrison, stated that he was present, when the money was paid; that Wagner was to buy wheat, oats, and rye, and convert the wheat into flour, &c.</p> <p>Samuel Long was examined, and stated that Wagner brought $300 to him at the mill and said he should buy wheat, &c., for Snyder — the, wheat was to be made into flour. He bought wheat and made 47 barrels of flour, which was the same that Sheriff Thomas, one of the defendants, took. The other defendants were with him.</p> <p>Another witness, Aurcmd, said that he was employed in the mill — that 47 barrels of flour were made for Snyder, and it was standing in the mill, and was taken away by the defendants. -He further said that he told Snyder that the flour was ready, and that Snycler said we should wait till the roads got better. This was about two weeks after the flour was made and packed.</p> <p>Another witness said that the flour was in the mill for several weeks. That he told two of the defendants that it was Snyder’s flour.</p> <p>The sheriff’s deed to Smith for the mill was shown, and the agreement of Smith and Wagner, dated 18th December, 1850, for the purchase of the mill.</p> <p>On part of defendants was shown a judgment in favor of Jacob Reichley v. Samuel Long, for $151.51 — fi. fa. to May Term, 1852, levied, on 1st May, on 4T barrels of flour, and 34J bushels of wheat; and the return of the writ.</p> <p>Testimony was given that Snyder said he would look to Wagner for his money.</p> <p>It was observed on the paper-book that other of defendants’ testimony related to contradictions of Samuel Long’s testimony. The testimony in contradiction was not stated.</p> <p>Various points were submitted on part of defendants. The first was, that if Snyder furnished $300 to Long in trust, to be accounted for in grain, and Wagner put the .money into the hands of Long, and he purchased grain and made flour of it, and whilst it was in the mill, before delivery of it to Snyder, it was taken away by defendants, Snyder had not such property in the flour as to maintain the action.</p> <p>2. That if 100 bushels of the wheat of which the flour was made was purchased by Wagner before he received any money from Snyder, and before the arrangement stated in the receipt of March, 1852, and this wheat or the flour from it was mingled with other wheat or flour, the whole to be delivered to Snyder, the latter had not such possession as to maintain trespass.</p> <p>As to this point, see opinion of Lewis, J.</p> <p>The 3d was, that if Snyder stated that he would look to Wagner for the money he advanced, it is evidence that he did not claim to be the owner of the flour.</p> <p>The 4th was, that no such possession had been shown in Snyder as will enable him to maintain the suit.</p> <p>5. That there was nothing in the arrangement which would require Wagner to deliver to Snyder the flour made from the wheat bought with the money advanced by Snyder.</p> <p>6. That the plaintiff was not entitled to recover.</p> <p>Wilson, President Judge, charged the jury that, whether the flour was made from wheat purchased by Wagner or Long, the miller, for Snyder, was a question for them. If it were, the position of Wagner and Long in respect to the mill, could not affect Snyder, and was not material in this suit.</p> <p>He observed as to Long’s testimony, that testimony offered to contradict a witness, should relate to a matter material to the issue. Also, that Long’s testimony was corroborated by that of others; but the credit of witnesses was for the jury.</p> <p>He added, that if Snyder had established his title to the 47 barrels of flour, then it was a question of law whether he had such possession as to maintain trespass. To maintain trespass, generally, there should be in the plaintiff either actual possession or a right to immediate possession flowing from the right of property. If Wagner was the agent of Snyder, such agency would not be inconsistent with a right in Snyder to immediate possession of the flour: King v. Humphreys, 10 Barr 217. The letter of 11th February, 1852, would seem to imply a previous understanding or conversation between Wagner and Snyder about getting wheat for the latter; or to let him have wheat. He further directed the jury that if they found that the grain was purchased for Snyder, paid for with his money, and manufactured and put into barrels for him, the barrels being purchased for Snyder, and the barrels and flour kept separate and ready for delivery, which Snyder postponed after he had notice of the flour being ready for delivery, he would have such right to immediate actual possession, accruing from the right of property, as would enable him to maintain trespass.</p> <p>He refused to instruct the jury as requested in the first point— also as requested in the second point, referring to his general charge. As to the third, he instructed that the declaration of Snyder as to looking to Wagner for indemnity, would not preclude him from maintaining this action. As to the fourth, he refused to instruct, and referred to his general charge. As to the fifth, that Wagner might have accounted for the grain purchased by him with Snyder’s money, by furnishing flour from a similar quantity of wheat; but that this would not be conclusive against Snyder’s right to recover, if his money paid for the specific wheat out of which the flour was made, and which was set apart for him in the mill.</p> <p>He refused to instruct as requested in the sixth point.</p> <p>May, 1854, verdict for plaintiff.</p> <p>The first assignment related to the rejection of various questions proposed to be put to Long as to his position with respect to the mill.</p> <p>The second assignment was that the Court erred in permitting a question to be put to C. Cawley, a witness for defendants, on his cross-examination, viz.: The plaintiff offered to ask the witness whether he did not call on Justice Roush, on the same day that he states Long called on him in town, and cause an attachment execution to be issued against Long, with notice to himself to attach the price of ten barrels of flour spoken of. This was offered to contradict the statement of the witness that certain flour, contracted for by the witness with Long, was not to be paid for until the whole fifty barrels were delivered. It was objected to as irrelevant and not a cross-examination.</p> <p>Cawley’s evidence in chief was not stated in the assignment of error nor in the bill of exceptions, nor in the digest of evidence in the paper-book.</p> <p>The third assignment was, that the Court erred in admitting on part of plaintiff, testimony by Squire Roush that Cawley, the witness for defendant, had ordered him to issue an attachment execution on Settler’s judgment v. Long. This was offered to contradict Cawley. It was objected that the cross-examination of Cawley as to that matter wras as to a matter collateral to the issue; and that his answer was conclusive on the plaintiff. The statement of the Court was to this effect: The defendants called Charles Cawley to contradict Long (a witness for plaintiff) as to his testimony that the flour was to be paid for as delivered by the load. Cawley states that it was not to be paid for until all of it was delivered. The plaintiff then cross-examined him to the alleged fact that on the same day that he got the first ten barrels of flour he gave Squire Roush notice of it, and directed an attachment execution to attach it; this being offered as some evidence to show that the flour was to be paid for as delivered. Cawley denied directing the attachment to be issued, and the justice was called in order to contradict Cawley and to sustain Long.</p> <p>The testimony was admitted.</p> <p>The fourth assignment was, that the Court erred in the answers to the several points, and in refusing to answer them as requested. Fifth. That the Court erred in ruling that under the evidence in the case there was either such possession or property shown in the plaintiff as enabled him to maiptain the action.</p>

This was a certiorari to a justice of the peace on a summary conviction under the Act of 16th March, 1847, for disturbing a religious meeting.- s Information was made before David Botdorf, a justice of the peace of said county, that, at a given time and place, “ whilst the Evangelical Lutheran Congregation were assembled for the purpose of religious worship, and transacting business pertaining to such worship, Burkhart, the defendant, was guilty of disturbing them in their…

<p>1. The faults of third persons are not allowed to benefit or prejudice either party to a suit in his right or duty of compensation.</p> <p>2. When a wrong is done, under circumstances arising from the fault of third persons, which, making due allowance for the infirmities of human temper, furnish a reasonable excuse for the violation of public order, then there is no foundation for exemplary damages, and the plaintiff is entitled only to compensation.</p> <p>3. Where there is a reasonable excuse for the violation of the public order arising from the provocation or fault of the plaintiff, but not sufficient to entirely justify the wrong done, there<oan be no exemplary damages, and the circumstances of mitigation must be applied to the actual damages.</p> <p>4. If the plaintiff, in company with other persons, was guilty of making a great noise and disturbance around the defendant’s house, and refused to withdraw or cease when requested, these circumstances will go in mitigation of the actual damages suffered by the plaintiff in consequence of the forcible means adopted by the defendant to suppress the annoyance.</p>

<p>Error to the District Court of Allegheny county.</p> <p>Action on the case against the railroad company for the loss of the life of William McCloskey by the negligence of the agents or servants of the company. The action was brought by the administrator of the estate of the deceased.</p> <p>William McCloskey, on the 1st March, 1853, put on board the company’s cars at Pittsburgh a drove of horses destined for Philadelphia. It appeared in evidence that the regulations of the company required that, before any undertaking to carry live stock should he made, the owner of the stock should sign an agreement to travel on the cars containing his stock, and give his care and attention to it, act under the orders of the conductor, and release the company from all liability for personal injury, however incurred ; and there was some evidence, hut strongly contradicted, that such an agreement had been signed by him, and that he knew of the regulation.</p> <p>When the train was on its way, on the 3d March, about 11 o’clock at night, near Newton Hamilton, it was stopped by the bursting of a flue of the engine. Arrangements were immediately made to warn approaching trains of the accident; but, for reasons not necessary to mention, the warning failed to reach the train from the west, and a collision followed, which caused such injury to McCloskey that he died in a short time. The jury found that the collision arose from the gross negligence of the company’s agents.</p> <p>i When it happened McCloskey was not in the cars containing his stock, and those cars sustained no injury; but he was in the emigrant car, which was crushed by the collision, and the jury found that he was there by the direction of the conductor.</p> <p>' McCloskey, at the time of his death, was childless and unmarried, and he left two sisters as his next of kin, and it did not appear that they had suffered any pecuniary loss by his death. It was therefore contended that no more than nominal damages could be recovered; but Williams, J., thought otherwise, and instructed the jury as appears in the opinion of this Court.</p> <p>He further instructed them that the direction of the conductor entitled McCloskey to be in the emigrant car, and that the release from liability, if signed by McCloskey, did not protect the company from damages occasioned by the gross negligence of its agents. These instructions were the principal matters complained of as error. The plaintiff had a verdict and judgment for $4500.</p> <p>By the Act of 1st April, 1836, it is provided, that if any person shall become injured, either in person or property, through or by reason of the gross negligence or wilful misconduct of the driver of any public stage, &c., carriage, or car, employed in the conveyance of passengers, or through or by reason of the gross negligence or wilful misconduct of any engineer or conductor of any locomotive, engine, &c., “such driver, engineer, or conductor shall be deemed guilty of a misdemeanorand ón conviction shall be punished by a fine not exceeding $50, and by imprisonment not exceeding twelve months, “provided that the provisions of this Act shall not interfere with the civil remedies against the proprietors or others to which the party injured may by law be now entitled.”</p> <p>By the 18th section of the Act of 15th April, 1851 (Acts, p. 674), it is enacted, that no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff, but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.</p> <p>Section 19. That whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.</p>