Volume 24 — Pennsylvania State Reports

<p>1. An act contrary to public policy means one that is contrary to the very spirit of a people's general customs, laws and institutions.</p> <p>2. If a sale of a store of goods is not in fact fraudulent, it will not be declared fraudulent in law, or contrary to public policy, for want of an open and unambiguous change of possession, if there was an actual delivery of possession in such a form as usually and naturally attends such a transaction.</p> <p>3. Where one made an honest purchase of a store of goods, and received the actual and exclusive possession of it: but continued it in the same place, and allowed the signs and other outward appearances to remain unchanged, and put in, to conduct it, his own son, who had, sometime before, been clerk in the same store, suffering the vendor, who lived in part of the house, to be about the store assisting in its business; these circumstances did not make the sale voidable by the creditors of the vendor, or require its condemnation as matter of law.</p>

<p>1. Though the right of a vendor of goods to rescind the sale, because of the failure of the vendee or of his refusal to pay, continues so long as any weighing, measuring or other thing remains to be done on his part, yet this test does not apply to the question of the vesting of the title in a case where the vendor has no cause of rescission.</p> <p>2. Weighing and marking goods and setting them aside are evidence of a perfect sale so as to vest the title in the vendee, but not proof of it, nor essential to it.</p> <p>3. That the bargain is by words in past or present time is not conclusive evidence of a perfect sale; for if it appear that the vendor did not then own the article contracted for, or that it was not yet in existence, or not selected out of a lot of similar articles, then the subject-matter of the contract remains undefined, and it is incompatible with the very nature of things to call it a perfect sale.</p> <p>4. Where a contract of sale is in lawful form, the vesting of the title depends upon the intention of the parties, to be derived from the contract and its circumstances ; but such intention cannot be inferred where the vendor has no title or the goods are not specified.</p> <p>5. Where the evidence consisted of a writing in these words, “we have this day sold to W. L. & Ob. 400 tons of pig metal now at our landing or that will soon be delivered there,” it was held that this was not, by itself, sufficient evidence of a perfect sale of a specified lot of metal.</p> <p>6. Where the same thing is sold to two different persons by contracts equally valid, and the second vendee is without notice of the first sale, he who first obtains the possession is entitled to the property.</p>

<p>A married woman, since the Act of 1848 as before, may mortgage her separate real estate for her husband’s debt; and may also covenant that a writ of scire faaias may immediately issue on default of payment of the mortgage debt.</p>

<p>1. It belongs to the very nature of residuary devises and legacies that they must take the burden of paying all debts and legacies not specially provided for.</p> <p>2. A bequest of all one’s household furniture and personal property to his wife, subject to the expense of his funeral, is a specific bequest, clear of debts, and throws them upon the residuary devisee and legatee.</p> <p>3. Where all one’s “ personal property” is bequeathed, with directions to sell on a certain contingency, this does not include the debts due to him.</p>

<p>1. Process in foreign attachment is not merely, a proceeding inrem; hut it is also a proceeding against the garnishee personally.</p> <p>2. All that is requisite to sustain proceedings in foreign attachment against a garnishee is that Tie he within the jurisdiction of the Court when the writ was served, and that the property attached be in the possession of himself or agent, though the goods he within a foreign jurisdiction at the time the writ was issued.</p> <p>3. A proceeding in foreign attachment against a garnishee was maintainable though at the time of the issuing and service of the writ'the goods in question were in Ohio, in the possession of an agent of the garnishee.</p> <p>4. A stranger has n'o right to object that an agent has exceeded his authority.</p> <p>5. An agent left in charge of goods cannot execute a mortgage or hill of sale of them without authority from the principal; hut a subsequent ratification of such act by the principal cannot divest an interest in the goods acquired by another person previous to the ratification.</p> <p>,6. If it he not apparent that an answer as prayed for would have benefited the party submitting it, a neglect or refusal to answer it is not assignable as error.</p>

Ejectment by John Blocher v. Hiram Dougan and Thomas Buchanan, for a tract of land containing 150 acres. Writ issued 21st November, 1848. April, 1854, verdict for plaintiffs. See the opinion of Woodward, J., for a statement of material facts and points in the case.

This was an action of assumpsit by Josiah Kurtz, administrator, &c., with the will annexed, of Thomas Gibson, deceased, against James C. Cummings, to recover the first instalment of purchase-money for a house and lot; with a second count in the narr. claiming damages for non-compliance with a parol contract for the sale of the same.

This was an action in case to August Term, 1852, by Philip Ery v. Joseph Moorhead, executor of the will of James Nelson, deceased, to recover a quantum meruit for his work, labor, and services. About fourteen or fifteen years before the trial, Ery, the plaintiff, agreed to live with Nelson and his wife, and serve them as long as they lived; and in consideration of his services, upon their death, he was to have, as long as he lived, all the property they left.

<p>ERROR to the District Court of Allegheny eouniy.</p> <p>This was an action of ejectment by William Reed and Molton C. Rogers, for an alleged island, called Killbuck or Smoky Island, situate in the Allegheny River, near its mouth, containing above 40 acres.</p> <p>William Reed, by his written application, dated 3d September, 1849, applied to the land office for. the purchase-of what was termed the remaining part of Smoky or Killbuck Island, with the bar on wbicb tbe lower end of Killbuck Island stood before 1829, not covered by tbe warrant of E. G. Nelson, situate in tbe Allegheny River. Three persons were appointed to appraise the territory applied for, from whose report it appeared that most of the ground applied for was then “a gravel bar, frequently covered by high freshets, but bare at ordinary stages of water.” They also stated that the ground was once the base of Smoky or Kill-buck Island, and they reported it to contain 44 acres and 68 perches, excluding the ground covered .by Nelson’s survey, and the part claimed by Ledlie under a patent to Robinson; and that, having regard to the “ wood, fishing, and other advantages, and local situation,” they valued it at $ 135 per acre.</p> <p>In the report several questions were suggested, amongst which was, whether a bar in the river, that was formerly an island, was a subject of grant by the state.</p> <p>On the 28th December, 1849, an informal caveat was entered in the land office, by Jonathan Rush, mayor of the city of Allegheny, addressed to the surveyor-general, protesting, on behalf of the citizens of Allegheny, against the issue of any order of valuation or survey for what was once Killbuck or Smoky Island; and a caveat was filed by William Robinson, Jr., on the 1st of November, 1849, against the issuing of a warrant to William Reed, on his application. The third Monday in September, 1851, was appointed for a hearing of the parties in the case of the caveat, before the board of property; and, on the 15th of September, 1851, the board of property directed the surveyor-general to issue a warrant to William Reed, on his payment of the one-third of the valuation thereof. On the 15th of September, 1851, William Reed paid the state treasurer $1999.12-|, being the one-third of the .purchase-money for 44 acres and 68 perches of an island called Smoky or Killbuck; and thereupon the same day a warrant of survey was issued, directed to the deputy-surveyor of Allegheny county, in favor of Reed. The survey was made, and a copy or draught thereof, dated October 17,1851, was certified and returned to’the land office. According to this survey, the island contained 48 acres and 127 perches. For the land embraced in this survey, called Smoky or Killbuck Island, the action was brought.</p> <p>The defence set up was, that, at the date of the plaintiff’s application and warrant of survey, there was no such island as Killbuck or Smoky Island in the Allegheny River — the said island, formerly known as Killbuck or Smoky Island, having been swept away prior to the date of the plaintiffs’ application — and that the Act of 27th January, 1806, does not authorize an application and warrant of survey for the land described in the writ, the same being a sand-bar and the bed or shore of the river.</p> <p>2d. That the land described in plaintiffs’ survey is not located on the site of what was formerly Smoky or Killbuck Island.</p> <p>3d. That the city of Allegheny, the defendant in this ease, was not in possession of the land claimed by the plaintiffs at the date of the institution of this suit, and that the city has never asserted or claimed title to the said land.</p> <p>It was stated by the Court, that it was admitted and. shown that, at the time of the passage of the Act of 27th January, 1806, for the sale of islands in the Delaware, Ohio, and Allegheny, there was an island situate in the Allegheny Itiver, near its mouth, known as Killbuck or Smoky Island, containing from 30 to 40 acres; that it was inhabited and cultivated as a farm; but that, by the flood of 1832, the greater part of the soil and surface of the island was washed away; and that the residue of the soil and surface was carried away in 1839 or 1840, leaving a gravel bottom or sand-bar, surrounded by water at an ordinary stage of the river, but covered when the water was from 6J to 7 or more feet deep in the channel of the river.</p> <p>Whether the officers of the land office were authorized,, by the Act of 27th January, 1806, to grant the warrant for the survey of the land in question, was reserved.</p> <p>Verdict was rendered in favor of the plaintiffs, and .on the point reserved judgment was afterwards rendered for the plaintiffs. In directing judgment, the Court (Williams, J.) observed that, after the soil of the island was washed away, the title still remained in the Commonwealth, the site of the island not .having become permanently a bed of the river, but only being submerged at intervals ; that the decision of the board of property in the matter was entitled to great consideration; and that, the board of property having authorized the issuing of the warrant, he did not consider it his duty to overrule their decision, and pronounce the warrant to be void.</p> <p>Error was assigned to the decision of the reserved question in favor of the plaintiffs.'</p> <p>It was, inter alia, contended that the decision of the board of appraisers was conclusive of the facts found by it; was analogous to the decision of the commissioner of patents in ease of reissue on account of defectiveness of specification from inadvertence and mistake: his decision being impeachable only for fraud: 4 How. 380; 15 Id. 228; and that, by the Act of 1806, it was not • requisite that an island in the Allegheny River applied for should be susceptible of cultivation, as is required in regard to islands in the Susquehanna: 5th section of Act 1806, and 1st section of Act of 2d April, 1822.</p>

<p>ERROR to tbe Common Pleas of Allegheny county.</p> <p>This was an action on tbe case by Sarab M. Robb against William McCormick, for breach of promise of marriage, brought to November Term, 1853. There were several counts in tbe narr. In tbe first count it was alleged that the defendant promised to marry tbe plaintiff on tbe 22d September, 1852.</p> <p>On part of tbe plaintiff, a witness testified that be saw the defendant visiting at the bouse of tbe plaintiff before tbe 22d September, 1853; saw him there three or four times. Tbe plaintiff bad a son and two daughters.</p> <p>Another witness testified that on tbe 20th September, 1853, tbe defendant called to see tbe plaintiff on a visit, and she was absent. Tbe defendant told tbe witness that be had been summoned to go to Cleveland, and be thought it would be painful to her, under the circumstances, for him to go away without letting her know, and be wished tbe witness to tell her.</p> <p>Tbe witness further said that again be saw tbe defendant at bis own bouse, and told him that be came, at the request of tbe plaintiff, to see him about tbe marriage contract pending between him and the plaintiff Tbe defendant said the contract was hrolcen. Tbe witness asked defendant if be bad not promised to marry tbe plaintiff, and be said be bad. The witness told him that the plaintiff bad given up her bouse and discharged her boarders. Defendant said he pitied her, but that be would make all right. Tbe witness further stated that tbe 22d September was fixed for tbe wedding, and that the plaintiff was at home that day. She bad made arrangements to leave ber bonse on tbe day after tbe wedding was to take place. She gave away part of her furniture.</p> <p>Another witness was called, and it was proposed to prove by her that she was invited by the plaintiff to the wedding with the defendant, which was to take place at the plaintiff’s house on the . 22d September, 1853.</p> <p>This was objected to on the ground that there was no proof of a promise on part of defendant, prior to the date of the alleged invitation.</p> <p>HamptoN, J., was of opinion that there was evidence from which the jury might infer a promise of marriage by the defendant prior to the 22d September, 1853. The evidence was admitted.</p> <p>The son of the plaintiff was examined, and testified to an interview with the defendant on the 1st of October, in which the latter said that the marriage contract was broken, and that he would take the consequences.</p> <p>On the part of the defendant, after other testimony, it was proposed to prove that the son of the plaintiff, who had been examined on part of the plaintiff, told the witness in the month of September, before the 20th, that the reason why his mother was breaking up housekeeping was because she was going to move to Steubenville. This testimony, it was stated, was offered for the purpose of showing, by. members of the family, the general design of the family in breaking up housekeeping. The evidence was rejected.</p> <p>The jury were instructed, in reply to the three first points submitted on part of plaintiff, that if there was a marriage contract which the plaintiff was ready and willing to perform, but which was broken by the defendant, she was entitled to recover. That such contract need not be proved by witnesses who were present when it was made, but that it might be shown either by the admissions of the defendant, or by circumstances from which it might be inferred; and thirdly, that if the jury believed the evidence of the second witness examined, and of the son of the plaintiff, the admissions of the defendant, as testified to by them, were evi-, dence of the existence of a marriage contract. And in reply to the third point submitted on part of defendant, the Court further charged, that it was a question of fact for the jury whether the plaintiff was ready and willing, and offered to marry the defendant. In reply to the fourth point, the Court charged, that if a contract of marriage existed prior to the 22d September, and that the parties had appointed that day for the celebration of the marriage ; that the plaintiff was ready to perform, but that the defendant neglected and refused to attend, for the reason that he had changed his mind and never intended to fulfil the contract, and subsequently declared the contract broken off, the plaintiff was not bound to tender a compliance before suit brought.</p> <p>April, 1854, verdict for plaintiff for $1500.</p> <p>The answers referred to were assigned for error.</p> <p>It was, inter alia, contended that though the assent of the plaintiff maj be made out by circumstantial evidence, yet there must be proof of an express promise by the defendant: 6 Modern, Hutton v. Han-sell; 2 Barr 83 ; 1 Harris 334, Moritz v. Melhorn.</p> <p>There should have been an offer by the plaintiff to marry, and a refusal by the defendant: Saunders on PI. ‡ Bv. 348; 2 Car. & P. 631; Addison on Qontracts 579; 2 Barr 83.</p> <p>Before the evidence objected to as to the invitation to the wedding, evidence had been given from which a promise of marriage might have been inferred, viz., the defendant’s visits to the plaintiff, and the circumstances of his call on the 20th September to account for his intended absence.</p> <p>In an action for breach of promise, an express promise need not be proved: 2 Starkie’s Hv. 941; 6 Mod. 172; Holt 458. A promise may be inferred from those circumstances which usually accompany such engagements: 15 Mass. 1. The previous visits of the defendant, and his call on the 20th September, and statement than made, indicated a contract of marriage prior to the 22d September, and on the 1st October the defendant declared the contract was broken; and the defendant never having had any interview with the plaintiff after the 20th September, the contract which was broken must have existed before that time. His declaration dispensed with any further offer on part of plaintiff. Her readiness and willingness before, and on the 22d September, was shown by her preparations for the occasion, and the other circumstances of the case.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>This tvas an action of debt by Thomas Hind and Andrew Fleming, administrators of the estate of Andrew Fleming, deceased, vs. John. C. Parry, to recover the amount alleged to be due upon a bond given by the defendant to Andrew Fleming in his lifetime, in the penal sum of $9000, conditioned for the payment of $4820.on or before the 1st day of April, 1837. The bond was dated the day of August, 1836. Its consideration was the purchase of certain lots of ground in Pittsburgh.</p> <p>On the bond a number of payments were endorsed, reducing the amount of the principal to the sum of $2520, which, with interest on that sum from the 1st day of April, 1852, was claimed by the plaintiffs.</p> <p>To secure the payment of the bond, the defendant executed a mortgage, hearing even date with the same; which was duly recorded, and which was a lien on the lots owned by the defendant. On the margin of the record of the mortgage, in the recorder’s office, the following entry was made :</p> <p>“ I, Andrew Fleming, do hereby acknowledge to have received satisfaction in full of this mortgage.</p> <p>“ Witness my hand and seal this 14th day of October, A. d. 1852.</p> <p>“Andrew Fleming.” [l. s.]</p> <p>The bond remained in the hands of Andrew Fleming during his lifetime. He died in the month of November, 1852, having first made his will; and the plaintiffs, his administrators, with the will annexed, having found the bond amongst his papers, had this suit instituted.</p> <p>The defendant, in pursuance of a rule of Court, made an affidavit of defence, in which it was stated that the mortgagee voluntarily entered satisfaction on the record of the mortgage, which satisfaction the deponent believed was partly in consideration of payments by him to the mortgagee, and as to the residue was by way of gift to the defendant and in consideration of natural love and affection towards the deponent, whose wife was a daughter of the mortgagee ; and that the satisfaction was meant and intended as a gift and discharge of the mortgage and bond.</p> <p>He further stated that certain moneys paid by him to the decedent in his lifetime, subsequent to the entry of satisfaction, and to his heirs since his decease, were made and intended by deponent on account of other indebtedness of the deponent to the decedent, and not on account of the bond or mortgage referred to.</p> <p>On the trial the affidavit of the defendant was read on the part of the plaintiffs.</p> <p>A witness testified that a few months before the death of Fleming, the defendant applied to the witness to borrow money on mortgage, and that he said he thought he could have the mortgage of Fleming removed in a short time; and that he afterwards showed to the witness the certificate of the recorder that the mortgage was satisfied.</p> <p>The defendant’s ledger was 'offered in evidence on part of the plaintiff, to show that the interest account was kept up till December 29, 1852, on the bond. It was objected to as not tending to prove what was alleged, and as irrelevant. The evidence was rejected.</p> <p>The will of Fleming, dated 6th March, 1852, was offered in order to show the improbability of a gift of the residue of the bond to the defendant or his wife. It was objected to on part of the defendant, on the ground that it did not tend to show the intention of Fleming as to the entry of satisfaction, the will being dated more than five months before the entry. It was overruled.</p> <p>The inventory of his estate was offered, and was overruled.</p> <p>The declarations of the wife -of the defendant, as to' the debt in question, as to whether it was relinquished or not, were rejected on the ground that there was no evidence that she was authorized to act as the agent of her husband.</p> <p>It was also offered to prove the number of the heirs of the obligee; but it was disallowed, and exception was taken.</p> <p>The Court directed a verdict for the plaintiffs, subject to the opinion of the Court on the whole case, considering all the evidence to be true; but reserved the questions: 1. Whether the entry of satisfaction on the mortgage operated as a discharge of the bond, and the debt secured by it.. 2. Whether the entry of satisfaction on .the mortgage, no money consideration having been paid, operated as a' valid gift of the residue of that debt, the bond being retained by the obligee under the circumstances of this case.</p> <p>Hampton, J., in his opinion, subsequently given, observed that the case depended on the legal effect of the entry of satisfaction, and the defendant’s affidavit of defence; and referring to the case of Phillips v. The Bank of Lewistown, 6 Harris 408, and to the case of Selfridge v. The Northampton Bank, 8 W. $ Ser. 820, and other authorities, he directed judgment on the first question reserved to be entered for the defendant.</p> <p>The overruling of evidence and the judgment as to the points reserved, were assigned for error.</p>

<p>If a suit at law be brought in the name of an equitable claimant describing himself as assignee of the legal party, it is proper to allow an amendment making the legal party the plaintiff for the use of the equitable one.</p> <p>Where an attorney, on a process issued by him for his client, purchases bank-stock of the defendant for less than his client’s claim, and takes the title in his own name, the statute of limitations begins to run, against the client’s right to claim the stock as a trust for him, from the date of the purchase, and not from the time when he is notified of it.</p>

<p>Proceedings commenced under an Act which is repealed before their completion, are not revived by a repeal of the repealing Act, there being no terms in the last Act ratifying, confirming or reviving the proceedings under the original Act and no private interest having vested under the proceedings.</p>

<p>ERROR to tbe Common Pleas of Westmoreland county.</p> <p>Action of ejectment by William Jack’s Executors v. Andrew Arnold, to recover a portion of tbe real estate of Henry Jack, deceased, which tbe plaintiffs claimed to belong to William Jack, their testator, under the will of his brother, Henry Jack, deceased-.</p> <p>Henry Jack, by his will, dated 7th May, 1829, devised all of his real and personal estate, by the same devise, to his three brothers, Matthew, William, and Wilson Jack, as joint-ten ants, &c. The terms of the will are hereafter stated. He died in January, 1837.</p> <p>Matthew Jack, by his deed, dated 15th September, 1838, conveyed all the interest he had acquired under the will of Henry, to his brother Wilson, and he died on the 20th of November, 1843, without issue.</p> <p>William Jack died on the 28th of February, 1852, leaving a widow and eight children. By will, dated 11th August, 1848, he devised his interest acquired under the will of Henry Jack, to his executors, for the use of his widow and children.</p> <p>Wilson Jack survived both of his brothers, and died on 29th October, 1852, unmarried, and without lawful issue, having made his will, dated 31st July, 1852, by which he devised the land in dispute, together with other lands which he claimed under Henry Jack’s will, to Andrew Arnold, the defendant, who claimed the entire estate of Henry Jack under the will of Wilson Jack, on the ground that Wilson became entitled to the whole as the survivor of his brothers Matthew and William. By the clause in the will of Henry Jack, under which the defendant claimed, he devised all his property or estate, whether real, personal, or mixed, unto his brothers “Matthew, William, and Wilson Jack, as joint-tenants, and to the survivors or survivor of them, and the heirs of said survivor; to be assignable by my said brothers, or their survivors, at any time, or in any manner they think proper; provided the said brothers or their survivors shall all, or both, if one be dead, assent to such assignment; but the survivor of them may assign and convey, or devise at his pleasureexcepting however to some of his relatives referred to.</p> <p>On the part of Arnold, the defendant in the suit, it was contended that the devise to the three brothers was of estates for life, with vested cross-remainders for life, and a contingent cross-remainder in fee to the survivor.</p> <p>On part of the plaintiffs, executors, it was contended that the estate devised by said will was an estate in fee simple to such of the brothers as survived the testator, as tenants in common; and, as all three survived him, the share of William Jack passed to the plaintiffs, under his will.</p> <p>A case was stated, stating the foregoing facts,; the Court, if they considered the plaintiffs entitled to recover, to enter judgment for whatever portion of the estate they were entitled to recover. Otherwise, judgment for the defendant with costs.</p> <p>October 4, 1854, judgment was entered for the plaintiffs for the undivided third part of the lands in dispute'.</p> <p>Such judgment was assigned as error.</p> <p>By the 1st section of the Act of 31st March, 1812, concerning joint-tenancy, it is provided as follows: “ If partition be not made between joint-tenants, whether they be such as might have been compelled to make partition or not, or whatever kind the estate or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by derise, and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose in the same manner as if such deceased joint-tenants had been tenants in common. Provided always, That nothing in this Act shall be taken to affect any trust estate.</p> <p>It was contended that Henry Jack, the testator, intended his devisees to take as joint-tenants. He used the term “ joint-tenants,” which being technical terms, it is to be presumed that he used them in their legal sense: Doug. 340; 6 Durn. East 352; 4 Ves. 329; 5 Id. 401: unless the context indicates the contrary. If the de-visees took absolutely in common on the death of the testator, then the estate devised could not go to “ the heirs of the survivor.” The restraint upon alienation should also have some meaning. If the devisees took as tenants in common, the restraint was inconsistent with such interest; but, if as joint-tenants, it prevented the survivor from losing his right of survivorship. If the testator intended the devisees to take absolute estates upon his death, there was no reason for the restraint without his own consent.</p> <p>It was further 'contended, that the Act of 31st March, 1812, did not interdict a right of survivorship expressly given; that by the said Act it was merely meant to declare that such a right would no longer be implied, and that it did not forbid either a grantor or devisor from creating, in express terms, an estate fettered with a limitation of the fee over to the survivor; or from creating a joint-tenancy by express words.</p> <p>It was further contended that the limitation “ to the survivors or survivor of them, and the heirs of said survivor,” was not meant to provide against the death of the devisees during the lifetime of the testator. One of the reasons for the construction, limiting the death to the life of the testator, was that when the gift was immediate, it was to be presumed that the intention was that the devisees should take as tenants in common, which was inconsistent with indefinite survivorship: 2 Jarman 631; 10 Earr 245; 1 Harris 152. Put here the devisees take expressly as “ joint-tenayts,” which is inconsistent with a limitation of sur-vivorship within the life of the testator. The estate also is limited to the heirs of the survivor. The devisor conferred upon the devisees the power to grant a fee, which was not inconsistent with a limited estate in them; and the restriction, that after the death of one of the devisees it should require the concurrence pf both of the survivors to convey, evinces a clear intention not to vest an estate of inheritance in any of the devisees except the survivor.</p> <p>Since the Act of 81st March, 1812, the mere use of the terms “joint tenants” does not create a joint tenancy; but it is contended, on part of the plaintiff in error, that it was the intention of the testator that the last survivor should take the whole at whatever period of time it occurred.</p> <p>A limitation to survivors will not be construed to mean an indefinite survivorship, unless by the use of express words it appear that the testator meant that the last .survivor should take the whole: 2 Jarman 450. The words “ to my brothers, &c., as joint tenants, and the survivors and survivor of them and the heirs of said survivor,” do not expressly indicate that an indefinite survivorship was intended by the testator, inasmuch as the use of the word survivors indicated that the testator intended to refer to a period when two only of the three might be living. Any intimation by a testator of a division or a severalty of interests, is sufficient to make a tenancy in common: 5 Binney 20; 2 Jarman 117. The words relative to assigning, referred to the manner in which the estate was to be enjoyed, and not as indicating the kind of estate which was to vest in them. Where the testator speaks of the survivor being allowed to assign, he meant HIS OWN snARE, and not the whole estate: The case of Johnston v. Moore, 10 Barr 245, cited. In all cases where there is a devise to two or more, and to the survivors and survivor of them and the heirs of the survivor, the words of survivorship refer to the death of the testator, and vest the fee in such of the devisees as survive him: 1 Sams 152, Caldwell v. Skilton; 10 Barr 245, and eases there referred to; 4 Sarris 827, Jessup v. Smith; 25 Wend. 119; 2 Jarman 451. If the construction now contended for prevail, it will give to the widow and children of William Jack the one-third of the estate devised by Henry, his brother. But if the construction contended for, on part of the defendant below, be sustained, the entire estate of Henry Jack will pass under the will of Wilson Jack, the last survivor, to one who is a stranger to the blood of Henry Jack, which, it was said, was a destination he most probably never intended.</p>

<p>1. Obligors in an instrument under seal made for fraudulent purposes, cannot shield themselves from liability by alleging their own fraud; therefore a husband can recover upon an agreement to pay to him a certain sum of money, which was made for the purpose of defrauding his wife out of her interest in 7iis real estate sold to the obligors.</p> <p>2. The seal importing a consideration and one being expressed in the instrument in suit, the plaintiff needed no aid from equity but could recover on his legal rights; and the defendant was not entitled in equity, to relief from the consequences of his own fraud.</p>

<p>In the ease of a seire facias to revive a judgment of revival, a plea that the defendant was discharged as a bankrupt at a time which was after the original judgment hut before the judgment of revival, was bad. Though a demurrer to such evidence might have been properly overruled as the evidence was in accordance with the plea, yet on the whole record the plaintiff was entitled to judgment.</p>

<p>1. A .recognisance taken in term time before the ,clerk of the Court of Quarter Sessions for the appearance, at the next Sessions, of a party charged therein with passing counterfeit money, is presumed to have been taken by the direction of the Court; and such presumption is not negatived by the words “ Taken and acknowledged before me” and signed by the clerk.</p> <p>2. The remedy on such a recognisance may be either by seire facias in the Common Pleas or by action of debt.</p>

<p>1. Parties have no right to responses to propositions unconnected with the facts of the case.</p> <p>2. It is incumbent on the plaintiff in error, when he desires the opinion of the Court of review upon a question of law, to present in his paper-book the facts upon which it arises; and if this be not done it will be presumed, if the presumption be not excluded by the nature of the case, either that the question was immaterial or that facts existed which justified it.</p> <p>3. A prior possession is sufficient to entitle the plaintiff in ejectment to recover against a mere intruder.</p> <p>4. One who enters on vacant land, with a view to acquire a title under the laws of the state, may recover against one who turns him out without right.</p> <p>5. A landlord may recover against a tenant without showing any other title than such relation and the termination of the tenant’s rights under the lease.</p> <p>6. In such cases the plaintiff may recover notwithstanding the existence of an outstanding title in a third person, or in the Gommonweaah.</p>

<p>1. Where cumbersome articles are to be delivered at a specified time in performance of a contract, and no place is fixed upon for their delivery, the vendor is not bound to carry them to the vendee, but must apply to him a proper time before the day of delivery to appoint a reasonable place for delivery.</p> <p>2. Where, in an ejectment by the holder of the legal title, the defendant sets up an equity under an article of agreement, it is incumbent on him to perfect it by doing or offering to do, or showing a readiness and ability to perform all that he was bound to do; and if liens exist against the land to excuse delay on his part, he should be ready to pay as soon as they are removed.</p> <p>3. Where the defendant agreed to pay for Certain real estate in bricks, and accepted an order in favor of third parties and delivered to them a quantity of bricks; it was admissible for the plaintiff, the holder of the legal title, to show that the defendant had sued for and recovered the value of the bricks from the persons to whom he had delivered them, and therefore had paid nothing for the real estate in question.</p> <p>4. Where the defendant agreed to pay for real estate in bricks, and the defendant had neither offered the bricks since the plaintiff was able to make a perfect title, nor was ready to furnish them, their value was properly assessed in money, and time afforded to raise it. The deed being filed in Court for delivery on payment, the defendant was not interested in the appropriation of the money by the Court.</p> <p>5. Where a period of four months was fixed upon in the verdict for payment by the defendant, and judgment was not entered thereon till the expiration of the four months, execution issued immediately after the judgment became absolute was not premature.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by James Gormley and Ann his wife v. Richard Mahon and Julia his wife, on a promissory note, as follows:—</p> <p>Pittsburgh, Nov. 13, 1853.</p> <p>Six months after date I promise to pay to Ann McCann or order, one hundred dollars, for value received, without defalcation, with interest from date at eight per cent.</p> <p>Julia MahoN.</p> <p>Richard Mahon plead non assumpsit,” and Julia Mahon plead “coverture.” An affidavit of claim was made, in which James Gormley stated, “ that he is the husband of Ann Gormley, formerly Ann McCann; that the copy of the note filed was a true copy of the one in suit; and that no part .of the principal or interest has been paid.” .</p> <p>An affidavit of defence was made by Julia Mahon, in which it was stated that defendants have a valid and legal defence to the plaintiff’s entire claim in this case, as she is advised and believes; that at the time said debt was contracted, and notice given, she was a married woman, and still was so; and “ that said debt was not contracted for necessaries for the support of herself or family, but for other purposes.”</p> <p>(Signed) Julia MahoN.</p> <p>Afterwards, viz., October 7, 1853, a narr. was filed; and on 17th October an amended narr. was filed; but neither was set out in the paper-book.</p> <p>Williams, J., in bis opinion, observed that the affidavit of de-fence was insufficient, because it set out no valid defence to the claim, nor any fact from which such an inference could fairly be drawn; and he directed judgment against Julia Mahon to be levied of her “separate goods and chattels, lands and tenements.”</p> <p>Such judgment was' assigned for error. It was also assigned for error, that judgment was given for the whole amount of the claim, when part of it was usurious.</p> <p>In the paper-book, on part of plaintiffs in error, it was stated that the plaintiffs in the action had not alleged in the affidavit of claim or in the pleadings that the debt was contracted for necessaries, or in the management of the separate estate of Mrs. Mahon.</p> <p>In the Act of 11th April, 1848, it is declared, that every species of property, real, personal, or mixed, belonging to a woman at the time of her marriage, or accruing to her during the cover-ture, shall be “ owned, used, and enjoyed by such married woman as her own separate property,” &c. It is, however, provided, that nothing in the Act shall be construed to protect the property of any such married woman from liability for debts contracted by herself, or from levy and execution on any judgment recovered against her husband for the torts of the wife; in such cases execution to be first had against the property of the wife.</p> <p>By a subsequent section it is provided, that, in cases where debts may be contracted for necessaries for the support of the family of a married woman, both husband and wife may be sued, and if no property of the husband be found, the separate property of the wife may be levied upon; but judgment is not to be rendered against the wife unless it has been proved that “ the debt was contracted by the wife, or incurred for articles necessary for the support of the family of the said husband and wife.”</p> <p>The Court below was of opinion that the wife should have stated in her affidavit the purpose for which the money was borrowed; and that, this not having been done, it might be inferred that it was borrowed in the management of her separate estate. But, under the pleadings, it was not considered, on part of defendants, necessary to state that this was not the case, or that the debt was not contracted for necessaries. Reference was made to the case of Williams and Wife v. Coward and Wife, Legal Journal, July 22,1854; and to the Act of 25th April, 1850.</p> <p>The Act of 1848 has effected a radical change in the condition of a femé covert. In respect of ber separate estate she is to be considered as a feme sole: 1 Jones 272, Cummings’ Appeal; 1 Harris 480, Goodyear v. Rum-baugli and Wife; 4 Id. 134, Sbeidle v. Weisblee. It is not imperative, by tbe Act of 1850, that a feme covert should manage her estate through a trustee.</p> <p>The rule of Court requires a specific affidavit of defence.</p>

Ejectment by Henry Barr v. D. Weld, R. Clark, and others, for one acre and one hundred perches of land in the village of Sugar Grove. Both parties claimed under John Barr. John Barr and wife, by deed dated 31st October, 1815, in consideration of one dollar, conveyed to Zalmon Burrett, R. B. Miller, and D. Brown, the ground in dispute, “ on behalf and in trust for the Utica School-House,” to them “ in trust as aforesaid for ever;” with a covenant of general warranty.

This was an action of debt to April Term, 1851, by John Caldwell against Thomas and Joseph Axtell, on a bond dated 11th October, 1844, executed by them, under the penalty of $500, for the delivery of certain cattle, sheep, hogs, household and kitchen furniture, “and also the clothing of the wife of Thomas Axtell, to be given up to her or her father, at any time when called on the above-mentioned property “to be kept in safe and good keeping for the benefit of said Ann…

<p>ERROR to the Common Pleas of Grreene county.</p> <p>This was an ejectment in name of William Cook v. James Morford, for 400 acres of land. The summons was issued on 22d August, 1821. Description filed 26th March, 1844. In the docket entry it was further stated: “ Defendant plead not guilty, and the death of plaintiff before impetration of writ. June 11th, 1845, death of plaintiff suggested, and William Cook, executor, substituted.” September 21,1847, death of defendant suggested. September 23, 1847, Jesse Morford, son of James Morford, substituted as defendant.</p> <p>On the trial in September, 1853, the will of William Cook, dated 26th February, 1813, and proved on 6th August, 1817, was given in evidence.</p> <p>In the counter statement it was stated that in January, 1787, the Commonwealth granted to Robert Morris a number of tracts of land in Greene county. Afterwards, on 30th March, 1795, Robert Morris and wife conveyed the said land, the land in suit included, to Edward Tilghman. That Edward Tilghman, by deed dated 6th May, 1798, conveyed the premises to William Cook, of Annapolis, declaring in the deed that the conveyance to him by Robert Morris, was in trust, and that tbe conveyance to William Cook was in execution of tbe trust.</p> <p>A declaration of trust by William Cook, dated 16th January, 1799, and recorded on 15th June, 1836, was briefly referred to on the paper-bdok, but no copy of it was set out.</p> <p>William Oook, the elder, devised to William Cook, his son, all his real estate in Pennsylvania, and requested him to convey to Henry Nichols and others, the parts of the said estate which they claimed to hold in common with him, in virtue of a certain deed or declaration of trust executed by him.</p> <p>It was alleged in the counter statement, that, by virtue of the deed of Edward Tilghman to William Cook, the elder, and the will of the latter, the estate in the property in dispute was in the persons named in the will of William Cook; that William Cook, the son and devisee, held the legal title, but held it as trustee for the use of the several persons interested. It was alleged that this was the condition of the property when the ejectment was brought, and till 14th May, 1846, when William Cook, the son and devisee, and his wife, conveyed to Josiah Pennington and George Cook, as trustees.</p> <p>On part of the defendant, the deed of William to Pennington and Cook was given in evidence.</p> <p>After the testimony was closed the plaintiff’s counsel moved the Court to substitute Josiah Pennington and George Cook, trustees, &c., as plaintiffs under the Acts of 1850 and 1852. They were substituted, under objection on part of defendant.</p> <p>In the 4th section of th’e Act of 26th April, 1850 (Acts, p. 591), it is enacted, “That when the title of a plaintiff in ejectment to lands may have been changed, by sale or assignment, after action brought, the suit shall not be affected thereby; but the purchaser or assignee may prosecute said action; and the verdict and judgment in said action shall enure to him in the same manner that they would have enured to the said plaintiff if no sale or assignment had taken place; and the purchaser of the real estate in controversy may be substituted on record, by motion in open Court.”</p> <p>By the 2d section of the Act of 4th May, 1852 (Acts, p. 574), the name of a party to a suit may be changed when it appears to the Court that a mistake or omission in the name or names has been made.</p> <p>The Court was asked in the second point submitted on part of the defendant, to say, “ that as William Cook, the elder, in whose name this suit was brought, died in 1817, and this suit having been instituted after his death, viz., in 1821, the plaintiff cannot recover. And in the third point, that William Cook, the younger, having conveyed all his title to the land in dispute after suit brought by Pennington and Gook, he could not recover more than costs in this suit. See 5 W. & Ser. 427; 4 Yeates 382; 4 Ser. & B. 130; 6 Harris 377, Alden v. Grove.</p> <p>In answer to tbe second point the Court charged that it seemed more reasonable to suppose that William Cook, who was the plaintiff, was the son and devisee.</p> <p>And to the third he charged in the negative, observing that a substitution had been permitted under the Acts of 26th April, 1850, and of the 2d section of the Act of 4th May, 1852.</p> <p>September 22,' 1853, verdict for plaintiff.</p> <p>Error was assigned to the answer to the second and third points.</p> <p>The Act of 26th April, 1850, as to transfer and substitution, should not apply to pending actions where the transfer or sale was made before the passage of the Act. .The Court should have charged that after William Cook, the younger, on the 14th May, 1846, conveyed the land in dispute, there could be no recovery in the suit: 5 W. fr Ser. 427; 4 Yeates 382; 4 Ser. B. 130. If the ejectment was rendered inoperative as a means of recovering the land, it ceased to be an obstruction to the operation of the statute of limitations. The defendant’s possession at the date of the deed from-William Cook, the younger, to Pennington & Cook, had been adverse for more than 40 years. The suit brought in 1821 was an admission of the defendant’s possession, and 25 years elapsed afterwards before the conveyance to Pennington and Cook: 5 Ser. B. 270; 13 Johnson 229. If the suit had been tried between the date of that conveyance and the passage of the Act of 1850, there could not have been a substitution or recovery — the adverse possession would have protected the defendant, and of this advantage he should not be deprived by the Act of 1850. As to the prospective operation of statutes were cited 4 Ser. ¿f B. 410 ; 7 Barr 283; 6 Id. 1982 Shaw 16.</p> <p>[That the Act of 1850 is applicable to actions pending when it was' enacted, see 6 Harris 377, Alden v. Grove.]</p> <p>The legislature cannot take the property of one individual, with or without compensation, and give it to another : 5 W. Sp Ser. 171, Norman v. Heist; 2 Barr 22; 1 Id. 209. The case of Dillon ¶. Dougherty, a case decided at Pittsburgh at the next preceding term, referring to the operation of the Act of 1850, was also referred to.</p> <p>The defendant should have proved that the person in'whose name, as plaintiff, the suit was instituted, was dead, as it was denied on the trial by the request to charge: 9 Watts 100. It was further alleged that the 7th section of the Act of 24th March, 1818, relative to actions by executors or -trustees, authorized the substitution. The conveyance by a trustee passes the legal estate and substitutes the grantee as trustee in the grantor’s stead: 8 Watts 522 ; 12 Ser. JR. 448; 1 Watts 535; 1 Barr 491. The interest of a trustee in the land is not that kind of right or title which is devested by transfer during the pendency of the suit.</p>

<p>1. One who receives a conveyance for life is an assignee within the meaning of the 12th section of the Act of 21st March, 1772, authorizing proceedings against a tenant holding over.</p> <p>2. Where the jurors in such a proceeding, after being duly sworn, cannot agree, or absent themselves, or adjourn to another day without the consent of the justices, the latter may discharge them and issue a new precept to the sheriff directing him to summon a new jury. The same course may be pursued where some of the jurors absent themselves after being sworn. And where the two justices unite in issuing a new precept for another jury, and the new jury is sworn and the parties appear, and the cause is finally tried before the last jury, this is an effectual discharge of the jurors previously sworn in the case. One information was sufficient in the proceeding.</p> <p>3. The proceedings before a former jury who reported in favor of the tenant, not being a part of this record or appearing to have been in evidence on the last trial which was the only one up for revision, or otherwise exhibited to this Court, no opinion was expressed as to their effect.</p> <p>4. Proceedings were instituted before two aldermen by one claiming as landlord, and the jury found for the tenant. A few days afterwards complaint was made by the same person to two other aldermen, and a jury was summoned and met on the 13th April and were sworn and adjourned till the 15th, when only ten of the jurors met, and two other persons were called by the sheriff and were sworn with the others. The jury not agreeing, and the magistrate refusing to discharge them, adjourned till the 20th April. Previous thereto, viz., on the 17th, one of the magistrates discharged the jury, and on the following day a new precept was issued to the sheriff, without any now information, and he summoned a third jury, who reported in favor of the complainant, and an execution was issued against the defendant for costs accruing in the three last proceedings. It was Held that the proceedings were regular, and that the defendant was pi’operly chax’geable with the costs of the proceedings necessary to regain the possession.</p>

<p>1. Delivery of a deed is essential to its validity, and it is a question for the jury to determine.</p> <p>2. A presumption arises from the recording of a deed and its possession hy the grantee that it has been duly delivered; but it may be rebutted by proof that the grantor took away the deed immediately after its execution, and kept it in his own possession during his life.</p> <p>3. Where a grantor had a deed drawn by a justice of the peace and executed it, without any evidence of knowledge of it by the grantee, and took it away, and after the grantor’s death it was found in his drawer, and the grantee had it recorded and subsequently conveyed the premises: it was Held that though the grantor subsequently declared to a stranger that he had given the land to his son — that he would keep the title during his life, but that the son would get the land after his death — the delivery was not established and the deed was insufficient to pass the title.</p>

CERTIORARI in the name of Valentine Specht v. The Commonwealth of Pennsylvania. Under this writ there was sent up by the alderman, the record of an action of debt in the name of Henry Kirk, who sued as well for the Commonwealth as for himself, v. Valentine Specht. The plaintiff claimed tbe penalty prescribed by tbo Act of 14th April, 1851, for selling or retailing spirituous, vinous, or malt liquors on the Sabbath-day, except for medicinal purposes: Acts of 1851, p. 548.

<p>Appeal from the decree of the District Court of Allegheny county.</p> <p>This was an appeal by George Philip Yierheller, from the decree of the Court confirming an auditor’s report relative t.o distribution of proceeds of sheriff’s sale of the land of Christian Pack.</p> <p>G. E. Warner and Jacob Painter, by articles of agreement, dated July 30, 1844, sold to Michael O’Neil a certain lot of ground situated in the reserve tract, for the sum of $850, to be paid in eight years from the date thereof; the deed to be made upon payment of the same. O’Neil took possession, and after-wards, by articles of agreement, dated August 22,1851, sold the same lot of ground to Christian Pack for the sum of $4000. The last instalment of $850 was to be paid according to the original agreement between Warner and Painter and the said O’Neil. It was also stipulated that a good- and sufficient deed was to be given when the consideration-money was all paid. Pack erected some improvements.</p> <p>In pursuance of this purchase, Pack paid O’Neil $1500 of the purchase-money; and afterwards gave O’Neil a judgment for $683.40, being for part of said purchase-money, which judgment was entered September 3, 1852. There was also a judgment entered by Charles Swartz v. C. Pack, October 7,1852, for $300. On the 2d day of November, 1852, Jacob Geyer and William Baxter entered a judgment against Christian Pack and Henry Yierheller, for 1003.13; and on the same day, Henry Yierheller had a judgment entered against Christian Pack for $1400. May 10th, 1853, this judgment was opened, the lien to remain as security. June 13, 1853, judgment confessed for $1400, interest from October 5, 1852. This judgment was assigned to Philip Yierheller, June 14, 1853. There was also a judgment entered by Conrad Yan Burén v. Christian Pack, April 28, 1853, for $196.36. These constituted all the liens of record against Christian Pack.</p> <p>The interest of Christian Pack in the land was levied on and sold on a vend. ex. issued upon the judgment of Geyer § Baxter ; and Philip Yierheller became the purchaser for the sum of $1250.</p> <p>The money was brought into Court, and, on motion, an auditor was appointed to report distribution.</p> <p>He reported against allowing any part of the proceeds to the judgment of O’Neil — and also reported in favor of Geyer & Baxter, in opposition to the claim of Philip Yierheller as assignee of Henry Yierheller. His report was confirmed.</p> <p>Exception was taken: 1. That $683.40, less $114.52, with interest, should have been appropriated in satisfaction of the judgment of O’Neil v. Pack. 2. In not allowing $300, with interest, in satisfaction of the judgment of Swartz v. Pack. 3. In not distributing the balance, pro rata, between the judgments of Geyer & Baxter, and of Henry Yierheller, for the use of Philip the assignee.</p>

This was an ejectment by Samuel P. Geiger v. David Miller & William Caler, for the undivided half of a tract of land, warranted in the name of Isabella Somerville, containing nearly 400 acres. The writ was issued on 11th August, ,1851. The Somerville tract was advertised for sale by the commissioners of Somerset county, in-, 1830.

<p>1. A report of a road by road commissioners under the Act of 13th April, 1843, relative to roads in Erie county (Ads p. 218-19), was irregular, in which it did not appear whether the road was to he a public or private road — in which there were no courses noted or reference to improvements, nor was accompanied by a draft of the road, and in which the width of the road was not fixed, the power of determining the width being in the road commissioners.</p> <p>2. An order to open the road which merely directed the pathmaster to open a road “ commencing on the plank-road between Bliss and Sears, and running west on the line between Bliss and Sears to Israel Hibbard’s east line,” was void for uncertainty.</p> <p>3. The report of the road commissioners and the order to the pathmaster were admissible in mitigation of damages, in an action of trespass for opening a road under it, but were not a justification of the defendants in opening the road.</p>

<p>1. A judgment-creditor agreed, in lieu of her judgments, to accept the bond of another conditioned to provide for and maintain her during life or pay her, if she preferred it, $150 per annum; the bond to be secured by a mortgage of land of Hie obligor. A person employed to prepare the instruments and to have the mortgage entered of record withheld it from record till the property became otherwise encumbered by claims, in one of which he was interested as a joint defendant, to an amount beyond its value; and the debtor became insolvent.</p> <p>In an action on the ease by the party injured, it was Held that she could recover from the agent all that she had lost or was likely to lose by his default —all that the mortgage, if duly recorded, would have been worth to her.</p> <p>2. The right of action accrued when the engagement to put the mortgage on record was violated, and the plaintiff was not bound to delay suit against the party agreeing to put the mortgage on record, till the obligor in the bond had made default in making the annual payment.</p> <p>3. It was not necessary for the plaintiff to prove that she had paid or expressly promised to pay the defendant for the service to be performed — the law implied a promise on her part to pay a proper compensation.</p> <p>4. On the death of the defendant after the institution of the suit and before trial, the action did not o&afe,but survived against his personal representative, as provided by the 28th section of the Act of 24th February, 1834.</p> <p>5. A Court may adjourn at any stage of progress in the trial of a cause.</p> <p>6. After a jury was called into the box at a regular term and before it was sworn, the Court adjourned till a,n adjourned Court, the other jurors being dismissed. The jurors selected met at the time appointed and were sworn, the defendant refusing to challenge because the panel might be filled from bystanders.</p> <p>Held that the refusal to challenge was a waiver of the right, whether his reason for refusing was good or bad.</p>

ERROR, to the Common Pleas of Somerset county. This was an ejectment by Skinner and wife, late Mary White, suing as heirs and legal representatives of Sarah White, late. Sarah Kush, deceased, v. Jacob Starner. The land, for the recovery of which this suit was brought, was held by Elijah White under an improvement right. He, on the 23d of April, 1827 (his wife Sarah joining), conveyed his interest by deed of general warranty to John King. Deed recorded 9th May, 1827.

Action of ejectment by William Wurts and Others, heirs of John Wurts, deceased, v. Andrew Black, to September Term, 1851, for 85 acres of land, being part of donation lot No. 1888, containing 200 acres, in the 2d district of donation lands, in Lawrence county. The plaintiffs claimed to hold under a patent from The Commonwealth to David Bedle, 'and bj transfer on the patent by David Bedle to John Wurts, who died intestate.

<p>Erkoe to the Common Pleas of Armstrong county.</p> <p>This was an amicable action of partition, in favor of Eliza Jones and others, heirs of Thomas Smith, deceased, v. George Hawk, entered into on 2d August, 1852, and, on the same day, judgment quod partitio fiat was confessed by defendant’s attorney. A writ departitione faoienda was issued to September Term, 1852, and the real estate was divided by the inquest into two parts, marked A. and B., in the schedule annexed, each containing 189 acres and 138 perches.</p> <p>20th September, 1852. Inquisition confirmed by the Court, and rule granted on all persons interested, to appear at the next term, and accept or refuse the premises. Rule returned, served on George Hawk, the defendant.</p> <p>On the return day of the rule, the plaintiffs’ attorney claimed for them the priority of choice of the purparts, on the ground that plaintiffs held the elder title. This was denied by the defendant, who alleged that the title had passed out of the plaintiffs, and become vested in John L. Leech, by articles of agreement dated 27th April, 1852, and that Leech was the real party in this suit. Thomas Hickenlooper purchased from the plaintiffs the undivided one-half part of the premises, by an article dated 16th January, 1825, and he conveyed his interest to the defendant by deed, dated February 23, 1844. The interest of Hawk was sold at sheriff’s sale, at June Term, 1849, for $1150, to John L. Leech, who, by an arrangement between Hawk and Leech, purchased it in trust, and for' the benefit of Hawk; and, in pursuance of this arrangement, entered into an article of agreement with Alexander Sheldon on the 18th Dec., 1844, (the time when the money was first paid to the sheriff, and the sheriff’s deed made to Leech), to convey the land to Sheldon, on being paid $1948.10, to wit, $595.32 in hand, $676.39 on the 18th January,, 1850, and $676.39 on the 18th December, 1851. It was agreed between Hawk and Sheldon, at the same time, that Sheldon should hold the property for the use of Hawk, and convey it to Hawk, or to any Other person, as Hawk should direct. The object of all the parties was to save the land for Hawk. Sheldon was to have no interest in the land, but to hold it until he was reimbursed what he might advance on it. Hawk got a lien against his land satisfied, in order to save Leech from paying that amount of money to the sheriff; and Hawk and Sheldon raised the hand-money on the article, which also was paid to the sheriff. Hawk afterwards paid Sheldon the amount advanced by him on the contract, which was but small, the most of the money having been paid by Hawk. Hawk and Sheldon having had some misunderstanding, Sheldon, at the solicitation of Leech, and against the wishes of Hawk, transferred and surrendered the article to Leech on the 5th July, 1851. Leech immediately brought an ejectment against Hawk for the land, which was referred to arbitrators, who filed their award on 24th September, 1851, in favor of Leecb, for the land described in the writ, to be released on payment of $326.52, on or before 23d June next. - On 18th December, 1851, Leech receipted to Hawk, on the back of the article, for $676.39, in full of the last payment. On 23d June, 1852, John L. Leech receipted to Hawk, by Cochran and Grosser, on the award in ejectment, for $357.41, the debt, interest, and costs in full; and on same day conveyed all of his interest in the land to George Hawk. On the 17th December, 1851, Hawk gave Cochran and Gosser a mortgage on the land, conditioned for the payment of $1669.70; and also, on the same day, entered into an article of agreement with Cochran and Gosser, that if they would furnish money to pay Leech, and satisfy the claim of Henry L. Patterson, so as to save the land for Hawk, that the deed should ,be made by John L. Leech to them, who were to hold the land until they were reimbursed the money advanced by them to Hawk. Cochran and Gosser advanced the money, in pursuance of this arrangement, as soon as the deed was made by Leech to Hawk. Hawk immediately, on the same day, conveyed to Cochran and Gosser.</p> <p>On 24th September, 1853, the Court decreed to the plaintiffs the priority of election or choice of parts; whereupon, by attorneys, the part marked B was elected, and was awarded to the plaintiffs. No order was made as to the other purpart.</p> <p>It was assigned for error that the Court erred in awarding to the plaintiffs the priority of choice, and decreeing to them purpart marked B. 2. In not decreeing the purpart marked A. to either party. 3. In not opening the judgment of quod partitio fiat, and setting aside the whole proceedings.</p> <p>It did not, however, appear from the paper-book that any application had been made to the Court below to open the judgment of quod partitio fiat.</p> <p>It was alleged that the right of priority of election was in Hawk. That'the attorney in fact had not power to elect for some of the legal plaintiffs; that the Court should have awarded the other part to Hawk, or granted a rule to show cause why it should not be sold; and, thirdly, that there was no evidence submitted to the Court of authority in the attorney-at-law to enter the action, and that, if so, the whole proceeding was void: 5 Harris 89, Bellas v. Dewart. Leech should have been made a party to the suit; and so should Cochran and Gosser.</p> <p>Leech was not a party, but acquiesces; Cochran and Gosser, if mere lien-creditors, should not be parties: 2 Pa. Hep. 124. 2. If the decree of the Court be defective because the other part was not assigned to Hawk, or directed to be sold, this writ of error will not lie, as it lies only to a final judgment, except to the judgment of quod partitio fiat. The Court cannot make an assignment until election, and Hawk made none; and no sale can be ordered unless upon application. The proceedings may be sent back for informality: Act of 16th June, 1886, § 1, Laws, p. 785 ; 10 Barr 169; 7 Barr 371; 1 Harris 361; Id. 117; 9 Barr 184, 230; 2 Jones 44; 3 Harris 313. 3. It does not appear from the paper-book that there was any application to the Court to open the judgment of quod 'partitio fiat. It is too late to call for a power of attorney.</p>

<p>Certiorari to an alderman of Pittsburgh, in the county of Allegheny, to remove tbe record of a proceeding in the name of The Commonwealth of Pennsylvania v. Francis Van Swartow.</p> <p>In the record of conviction, it was stated by the alderman that information, on oath, had been made before him, at the city of Pittsburgh, in the county of Allegheny, by Joseph Bishop, that Francis Van Swartow, on the Sabbath day, being the 9th April, 1854, in the borough of Birmingham, in the county and Commonwealth aforesaid, unlawfully did sell and retail spirituous liquor, not for medicinal purposes, contrary to the 2d section of the Act of Assembly, approved the 14th day of April, 1851, entitled, &c. Defendant brought up, and case continued till 15th April, 1854, at 2 o’clock, P.M. And the record proceeded to state that, now, April 15th, 1854, before me, &c., an alderman, &c., the complainant and the defendant appear — whereupon, he (the alderman) proceeded to examine into the truth of the complaint ; and certain witnesses named, being sworn, say that the defendant, Francis Yan Swartow, on Sabbath day, bemg the 9th day of April, 1854, at his house, in the borough of Birmingham, county and state aforesaid, did sell and retail spirituous liquor, commonly called whiskey — the spirituous liquor so sold at the time and place aforesaid not being for medicinal purposes. And the said defendant produces the following named witnesses, viz., &c., who were severally sworn, but “ fails to contradict the proof aforesaid; whereupon, it appears to me (the said alderman) that the said defendant, Francis Yan Swartow, is guilty of the premises charged upon him in the said information, and set forth in the above record; and I do convict him thereof, and do order and adjudge that he pay the sum of $50, as follows, one moiety thereof to be paid for the use of the Commonwealth, and the other moiety to be paid by the said Francis Yan Swartow to Joseph Bishop, the informer.” And it proceeded to adjudge that, in ease the defendant did not pay the $50, and no goods or chattels could be found belonging to him, whereby to levy the same by distress, that the defendant, said Francis Yan Swartow, be committed to the common jail of Allegheny county, for the term of thirty days, according to the Act of Assembly aforesaid. In witness, &c.'</p> <p>Signed, Thomas Steel, [l.s.]</p> <p>See the case of Specht v. The Commonwealth, antea 104, where the terms of a portion of the Act of 1851, in question, are quoted.</p> <p>It was assigned for error, — 1. The magistrate erred in convicting the defendant under the second section of the Act of 14th of April, 1851, the same being unconstitutional and void. 2. The record does not exhibit sufficient on its face to show jurisdiction in the tribunal before which the proceedings were had. 3. The record should set forth the Act of Assembly whenever it is local, in order that the Court may judge of the legality of the conviction. 4. The record should set forth the evidence in full, in accordance with the rules and principles of the common law process upon which the conviction is founded. The 5th was that the proceeding, being in its consequence a qui. tarn proceeding, should have been in the name of the informer, as well as in the name of the Commonwealth.</p> <p>It was alleged that the Act of 14th April, 1851, was contrary to the 7th article of the amendments to the constitution of the United States, providing that, “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved;” and to the sixth section of the 9th article of the constitution of the state, providing that “ trial by jury shall be as heretofore, and the right thereof remain inviolate.” The legislature cannot restrict the right of trial by jury: 1 Binn. 424; 3 Penna. Bep. 260-1. The process, under such an Act as the one in question, should conform strictly with the rules and requirements of the common law: 2 Parsons 265-8; 1 Ashmead 410.</p> <p>2. It was said that the action was under a private statute, under which the provision in question was limited to Allegheny county, and that the Act should have been set out in the record, that the Court may judge of the legality of the conviction: 1 Ohitty’s Burn 813-821-825.</p> <p>As to the 3d assignment was cited: 2 Parsons Eq. Gas. 231-2. 4. "Where the statute does not point out the course to pursue, the whole of the evidence should be set out in full, and not its result : 7 Term Bep. 152; 1 Burr. 1163; 1 Ohitty’s Burn 140, 841; 1 Parsons 265-269. 5. The proceeding being in its consequence a qui tarn, proceeding, should have been in the name of the informer as well as in the name of the Commonwealth.</p>

<p>1. The plaintiff agreed to sell his right, title, interest and claim to land, there being no covenant of warranty; the land being described in the agreement as generally being within tract No. 3133, and having erected thereon a saw-mill and other improvements, it being alleged that one of the vendees had previously examined certain lines on the ground by which the plaintiff claimed; but it was afterwards ascertained that most of the land was within another survey No. 4821; Held that no fraudulent misrepresentation by the vendor being found, and the mistake in the number of the tract not rendering the title either better or worse, the defendant being considered as taking the risk of a paramount title, the payment of the purchase-money could be enforced by ejectment.</p> <p>2. The fact that the vendees had made valuable improvements on the property did not alter the case; they were not entitled to remain in possession till reimbursed for improvements and expenses.</p> <p>3. The six months allowed by the jury for payment of the purchase-money having expired during the pendency of the writ of error, the same length of time after the affirmance of the judgment was allowed for its payment.</p>

<p>1. The Act limiting the lien of a decedent's debts to seven yeai's does not apply to the compensation decreed to the executor or administrator, such claim not being a debt of the decedent, but a part of the expenses of administration.</p> <p>2. The sale of the estate of the decedent may be properly ordered to pay such balance. ~</p> <p>~ ~ ~. In the distribution of the proceeds of such sale, the decree of the Court ordering the sale was conclusive of the fact on which it was founded, viz., that a balance was due the executors for which the land</p>

<p>1. A county commissioner has no right to purchase for himself land sold at a treasurer’s sale at a price less than the amount of taxes and costs charged against it; hut he may purchase at a price exceeding-the taxes and costs.</p> <p>2. A bond for the surplus beyond the taxes and costs is indispensable to the validity of a treasurer’s sale; but after a deed.had been given it was incumbent on the plaintiff, who claimed under the warrantee, in an ejectment against the purchaser at -treasurer’s sale, denying the existence of such a bond, to show that none was given; or at least to show some ground for his assertion before he could require the purchaser to prove that a bond was given.</p> <p>3. The right of the treasurer to make the sale may be shown by the books from the commissioners’ office in which the taxes .were charged; and whether the charges therein are regular or irregular is not material. ^</p> <p>4. Such books or papers may be given in evidence in ejectment, if shown to belong to the commissioners’ office by any one who knows the fact. The' clerk who made the entries therein need not be called- *</p>

<p>ERROR, to the C/ommopi Pleas of Lawrence county '.</p> <p>Action of assumpsit by Dickson & McClymond v. Josiah Stephenson, as endorser of a note of Greorge Lilford, as follows:—</p> <p>New Castle, May 29, 1852.</p> <p>. Three months after date I promise to pay to the order of Josiah Stephenson, at the Rank of Pittsburgh, $500, without defalcation, value received.</p> <p>$500. George Lileord.</p> <p>The drawer negotiated the note to Dickson & McClymond, of New Castle, who endorsed the same to Williams Co., of Pittsburgh ; and on its maturity, viz., on the 1st September, 1852, at the request of the latter, it was presented for payment, and was protested for non-payment, by a notary, at Pittsburgh. The protest was dated 1st September. Two notices of the demand of payment and protest were sent by mail to Dickson & McClymond, who caused one' of them to be served on Josiah Stephenson, on the 8d or 4th' September. The person who served the notice said be thought it was served on tbe 3d September.. Tbe. notice ' to Stephenson was dated September 2; 1852, and'"it" was stated therein that tbe note “ has been protested this day, at- tbe request of W. H. Williams & Co., bankers, for non-payment; demand for-payment having been first duly made, &c.” - _ •</p> <p>■ Tbe deposition of tbe post-m‘aster at Pittsburgh was taken, and be stated that in September, 1852, the mail for New Castle was closed before seveh o’clock, A. M., and left tbe office at about half-past seven, or between that and eight; that .at that .time tbe business hours of wholesale■ merchants were from 7 A. M. to 6 p. M; of, brokers, from 8 tc 4; and of bankers, from 9'to 3.</p> <p>The deposition of "the notary was read, and be stated that on tbe 1st September, 1852, about 4 o’clock, p. M., be received thq note in suit for protest, if not paid. That be presented it and protested it in the course of tbe same evening; • that' the notices ■ of protest were placed in the Pittsburgh post-office on tbe morning o'f the 2d September, at 9 o’clock. A notice to Stephenson, and one to Dickson & McOlymond, were enclosed in tbe same envelope, and directed to Dickson & McCIymond, at New Castle! He said it was usual to direct the notices' of protest to tbe last endorser or endorsers, where they live at a distance, and where we' do not know the residence of the’ prior endorsers.</p> <p>He further stated, that upon inquiry of the post-master at Pittsburgh, about that time, he was informed that the mail for New Castle closed at 12 o’clock at night. Sometimes, however, letters were placed in the mail at 2 or 3 o’clock in the. morning. He further stated, that the late hour of 4- o’clock, p. M., at which notaries receive notes for protest from brokers — the time necessarily consumed in making demands — drawers', sométimes living out of the city — and the time occupied in making out certificates of protest -and registering thereof, (which is-a copy of certificates,) make it sometimes impossible to have all- notices served' and sent the same night.</p> <p>Three questions were submitted: 1st. Whether the notice .'served . upon the alleged endorser does not by its own terms discharge him from liability, it being alleged that it showed that no demand of payment was made on the 1st September, which was-the last day of grace. 2d. Whether the notice, if good upon its face, was served in time to make the endorser liable. 3d, Whether there was sufficiently certain evidence of service of notice, to submit the case to the jury. ■</p> <p>A&New, President Judge, as to the first proposition, charged, that it being stated, in the notice of protest, that payment of the note had .been first duly demanded, it was meant that the demand, preceded the protest.</p> <p>As to the 2d proposition, the Court observed.: “Notice óf demand and non-payment must be sent by the first mail of the next day at the farthest, after payment has been demanded. But when the mail of the next day after dishonor closes at an unseasonable early hour, as at 12 o’clock, of the night before, or 2 or 3 o’clock in the morning, it is sufficient if it be put in the next mail. If the jury believe the testimony of Snowden, the notary, as to the time of the closing of the mail, and he is not positively contradicted by Anderson, the postmaster, who fixes no precise time of closing, only that it was before 7 o’clock, A. M., the depositing of the notice at 9 o’clock, A. M., of the 2d September, was done in time. But if the mail of the 2d did not close till 7 o’clock, A. M., it was too late.” The case of Lawson & Covode v. Salem Bank, Am. Law Reg. of 1853, p. 617, cited.</p> <p>As to the 3d proposition, the Court charged: “ The defendant called Hosea Lewis, who stated that the notice of protest was handed him by Dickson, one of the plaintiffs, who said he got it out of the post office, and directed him to serve it on the defendant, which he did on the 'same day. As to the day this took place, he first said it was on the 3d or 4th of September, 1852; then, on being asked, he said he thought it was on the 3d; and on cross-examination, repeated his belief that it was on the 3d. The proof of notice lies on the plaintiffs. * * * * The protest being in evidence, and the witness being called by the defendant to contradict it, the jury, not the Court, must determine what the evidence proves. If the letter containing the notice arrived in New Castle on the 2d of September, service of the notice would do on the 3d, but not on the 4th. But if it arrived on the 3d, service on the 4th would be sufficient. We consider it immaterial whether the notice comes, as in this case, from the holders or from the plaintiffs, the rule, in Pennsylvania, being ‘ that -when it is given by the holder directly it is soon enough if it reach the particular endorser as soon as it would have reached him circuitously through the subsequent endorsers, each of whom is entitled to an entire day to hand it in:’ Etting v. Schuylkill Bank, 2 Barr 357. In that case the endorsers lived in the same city. The testimony here shows that the letter deposited in the post office at 9 o’clock, A. M., of the 2d, must have left after 12 o’clock at night, of that day, and consequently could not have reached New Castle until the 3d. If this be so, the notice was sent in due time, and served by. the plaintiff likewise in time.”</p> <p>May 24th, 1854, verdict for plaintiff.</p> <p>It was assigned for error, that the Court erred in their charge as to the three propositions.</p> <p>The note should have been presented for payment on the 1st September, that being the last day *f grace. Reference was made to the case of Etting v. Schuyl-till Bank: 2 Barr 355; 2 Hill 588, cited in Brightly’s N. P. Bego. 484</p> <p>2. Where there is a regular intercourse between the places by post, the notice should be sent by the next post after the dishonor, if a reasonable time remains for writing and .forwarding the notice: 2 G-reenleaf ’s Hv. 186.</p> <p>3. The notice in this case was given by the holders, Williams & Co. The holder, when the note has been dishonored, may resort either to his immediate endorser, and then he must give him notice within the proper time; or he may resort to any or all of the other endorsers, in which case he must give them notice respectively in the same manner as if each were the sole endorser, for the holder is not entitled to as many days as there are prior endorsers, but each endorser has his own day: Story on Promissory Notes, § 330, and authorities there cited. The law-merchant is part of the j-us gentium, and Pennsylvania should conform: 2 Barr 104. The notice then should have been served on Stephenson (the endorser) at latest on the 3d. But the witness is uncertain whether it was served on the 3d or 4th. “ Where a witness testified that he gave notice in two or three days after the dishonor, notice in two days being in time, but notice on the third day being too late, it was held not sufficient evidence to go to the jury, and the plaintiff was nonsuited:” 2 Greenleaf’sHv., § 186.</p> <p>The testimony of the postmaster was, that but one mail for Newcastle left Pittsburgh on each day, and that it closed before 7 o’clock. The notary placed the notice in the post-office at 9 o’clock, A. m., of the 2d September. It could not arrive at Newcastle before the evening of the 3d, as the mail of the 2d had been closed before it was deposited in the post-office. The notary (as the agent of the holders) was entitled to the 2d of September to prepare the notices, and would be bound to serve notice on the endorsers within business hours of that day, if they resided in the same town: Story on Promissory Notes, § 289. And would be bound to send it the next day after dishonor, if residing out of town, by the next practicable mail: Id. 288. It was contended that, as business hours in Pittsburgh (among merchants) began at 7 o’clock, and the mail being closed, according to the post-master, before 7 o’clock, it would be unreasonable to require service on endorsers before 7 o’clock, or to require notice to be put into the post-office before that time. Reasonable diligence is all the law demands. If so, the deposit, in time for the mail of the 3d September, was,in time: 17 Mass. 499; 1 Hill 263; the case of Lawson v. Covode, cited by Judge AGNEW: 1 Smedes tf Marshall 261; 24 Maine 458, and authorities therein cited; Story on Promissory Notes 325; Byles on Bills 160 ; 23 Pick. 307.</p> <p>Notice to an endorser is in time, if given on the day of the dishonor, or in the course of the next day; and it is not requisite to give such notice by the very next mail after dishonor of the note. The next day is early enough; and, if there be two mails a day, it is not material by which the notice is sent: 17 Mass. 453.</p> <p>No particular form of notice of dishonor is requisite: Story on Pro. Notes 348; 4 Barn. $ Cress. 340; 10 Ad. ‡ Bilis 125; 3 Met. 495. It is sufficient that the notice state the fact of presentment, and that the holder looks to the endorser for indemnity. Whether the demand was duly and regularly made, is matter of evidence at the trial: 11 Wheaton 431; Mills v. United States Bank, 1 Pick. 406. The statement in the notice in this case, that the note had been duly protested for non-payment, was not calculated to mislead. The notice meant that it was presented in due time: 2 Penna. Rep. 63; 7 Taunton 167: 2 Ser. $ R. 63; 2 Karris 483. The facts were in dispute, and were properly submitted to the jury; 7 W. $ Ser. 264.</p>

Action of assumpsit to June Term, 1852, by Milton Lawrence, administrator of the estate of David Minesinger v. Jonathan Duncan, to recover certain; money paid to the defendant by Minesinger for the purchase of land.

<p>Bill in equity in tlie Supreme Court, and motion for a preliminary injunction. The bill charged that the defendants were partially filling up one of the locks at the outlet of the state canal at Pittsburgh, and casting an arch over it in such a manner as entirely to obstruct the use of it, and prayed for injunction to prevent them. The defendants admitted that they were doing so in the construction of their road, and urged as an excuse that that portion of the canal had never been of any valuable use to the state, and that for many years it had lain in a condition of utter abandonment and desolation: and such seemed to be the fact.</p>

<p>1. The’ statutes of Pennsylvania in relation to waste forbid to tenants for life such acts as at common law constitute waste, except they be such, as in the judgment of the Common Pleas and according to the terms of the Act of 1848, are requisite to “ the reasonable and necessary use and enjoyment” of the estate.</p> <p>2. At common law the working of open mines by a tepant for life is not waste (see Neel v. Neel, 7 Harris 323); and in Pennsylvania, whilst the right of possession is unquestioned, the working of open mines by a tenant for life is not waste.</p> <p>3. Though a Court, by virtue of its common* law powers, might restrain unskilful mining and wanton injury to the inheritance by a tenant for life; yet not such mining as is subject to no other objection than its liability to exhaust the mine.</p> <p>4. If our Courts under their Chancery powers may direct an account between tenants for life and those in remainder'as to coal mined by the life tenant, yet estreyement is not the remedy for obtaining relief in such a case.</p> <p>5. A tenant for life, claiming under a will, sold to a coal company all her right, title and interest to the coal in the land, without limit as to the quantity 'of coal to be taken therefrom:</p> <p>• It was Held that estrepement did not lie in favour of those entitled in remainder, to restrain the Company from working largely, for sale, a mine which had been worked during the life of the testator for the use of the farm and for sale in the neighborhood.</p> <p>•6. The testator, after deyising to his wife the one-third part of the net proceeds of the rents, issues and profits of certain real estate during her natural life, devised to his son and daughter all her real estate not otherwise devised; and directed that in case of the death of either of the children before attaining the age of twenty-one years, without lawful issue, the said real estate should go to the survivor:</p> <p>The daughter diedyirai, in her minority and without issue, and the son after-wards died, also in his minority and without issue:</p> <p>It was Held that there being cross-remainders in fee, on the death of the sister the brother took her share not as her heir at law, biit under the will of the testator; and on the death of the son without issue, the half brothers and sisters of the testator could not take from the son, because they were not of the blood of the ancestor, the testator. But the children of a deceased sister of the whole blood of the testator, being of his blood, took the estate on the death of the son.</p>

<p>ERROR to the Common Pleas of Westmoreland county.</p> <p>This was an action of ejectment to August Term, 1854, by William Cannon and Jane his wife, James Sweeny and Isabella his wife, and others, v. James Braden and David Ferguson, for a tract of land containing 225 acres, more or less.</p> <p>A case was stated in the nature of a special verdict.</p> <p>John Braden was the owner of the land in dispute, and died seized of it in 1823, having made his will, which was without date, but was [Droved on the 28th January, 1823. He devised to his wife and his two eldest sons, William and John, and his daughter Jane, certain personal property; and to his wife, during her widowhood, tbe third of what his farm would rent for. The remainder of his personal property was to be sold, and the proceeds divided as directed; his four youngest daughters were each to receive $ 100 each, on their arrival at the age of 21 years; and if the personal property was insufficient for the purpose, the balance was to be made up out of the real estate; if the proceeds exceeded $400, it was to be divided between his two eldest sons when 21 years of age. He further gave to each of his four youngest daughters $100 in trade, to be paid them when of full age, by his two eldest sons, William and John.</p> <p>He further bequeathed to his two eldest sons, William and John, all his real estate, to be equally divided between them, except $400 out thereof, which he bequeathed to Ms youngest son James, to be paid at the time he arrived at the age of 21 years. He was also to have his maintenance, and schooling to a certain extent paid out of the real estate. It was added: “ And also if any of my sons depart this life without a legal heir, his part or portion of him or them so dying shall go and be equally divided among the survivors of my sons. And my will and meaning is that in case of any of my daughters departing this life without a legal heir of her body begotten, her or their part or portion so dying shall be equally divided among her surviving sisters or sister.”</p> <p>The said testator left a widow named Isabella, who died in , and issue three sons, William, John, and James, the last named being the defendant in interest here. William died unmarried, without issue, and intestate, about- the year 1846. And John also died in January 1854, unmarried, without issue, and intestate.</p> <p>The testator also left issue, Jane, the wife of William Cannon, Isabella, the wife of James Sweeny, Sarah, the wife of Leslie Sweeny, Agnes or Nancy, the wife of Andrew Brown, and Margaret, the wife of David Elder, all of whom are still in full life, the four first named of them being the plaintiffs in this case.</p> <p>The plaintiffs claimed as heirs at law of William Braden and John Braden, the younger, deceased, who they alleged took the land in dispute, in fee simple, on the death of John Braden the elder, under and by virtue of his will, as they survived him; and that having an absolute estate in the same as tenants in common in fee, upon their deaths it descended to their brother and sisters as their heirs at law, of whom the plaintiffs are four out of six.</p> <p>The defendant, James Braden, claimed the whole land by virtue of the will of his said father, John Braden, the elder, deceased, under that clause of the same which limits the estates in the land to the survivors of his said sons.</p> <p>October 5th, 1854, judgment was entered for the plaintiffs for the four undivided sixth parts of the land demanded in the writ. The judgment was entered as of- the 21st August, 1854, nunc pro tune.</p> <p>The judgment was assigned for error.</p> <p>The Court below must hare supposed that the estate devised to William and John was an estate in fee to such of the two as survived the testator; and that both having survived him and died without issue, the estate descended to their heirs generally under the intestate laws. But it was contended that the devise, created in William and John an estate tail', with remainders to such of his three sons as should survive. That the words legal heir meant heirs of the body, and not heirs generally, reference was made to 8 Burn. f Mast 488; 2 Jarman 274; 2 Yeates 400. That the testator did, not mean dying without heirs generally was manifest, for the reason that the estate was devised over to those who would be heirs generally, so that he must have meant children: 9 Barr 130, Lapsley v. Same; 3 Ser. R. 470, Clark v. Baker; 17 Ser. £ R. 441; 1 Wharton 130 ; 6 Watts 18; 9 Id. 447, 450; 5 Rawle 231; 6 Barr 45 ;■ 7 W. ¿ Ser.. 96. ’ ■'</p> <p>In this case, James, the survivor, had no immediate interest in the land; his interest depended on the contingency of the death of his brothers without issue; and whether they died without issue, before or after the testator, is of no consequence so far as regards his interest. The time when his interest was to vest, is fixed by the will; but it is contended, on the other side, that his right to take must depend, not on the fact of his brother’s dying without issue, but upon the fact whether or not they both survived the testator.</p> <p>By the first clause of the devise to William and John, the testator intended to give them afee, as he uses the words, “ all my real estate;” and he indicates the same by charging it with the payment of legacies to his children: 2 Jarman 179, and authority on margin: 2 Binn. 464; 6 Id. 94. They were to hold as tenants in common.</p> <p>2. By the second • clause he contemplated several possibilities. 1. That one or both the devisees might die without leaving children in his own lifetime, which would create a lapse; this he prevented by limiting it over to the “survivors or survivor of his sons.” 2. If they or either of them died in his lifetime leaving children, such children would take their parents’ share, by substitution under the Act of 19th March, 1810: Newbold v. Prichett, 2 Whar. 46.</p> <p>3. He intended this limitation to the “survivors or survivor” to refer to such as survived himself, because the gift was immediate and in possession; the devisees w.ere to take as tenants in common; and this construction gives effect to all the parts.of the will: See Doe v. Sparrow, 13 East 358; Clayton v. Lowe, 5 Barn. & Ald. 636; Caldwell v. Skilton, 1 Harris 152. Also, Jarman on Wills, tit. Limitation to Survivors 632; Johnston v. Morton, 10 Barr 250.</p> <p>It is not probable that he, intended to create an estate tail — the devisees were to have all his real estate; and he limited the legacies to his daughters, by the same phrase as the devise to the sons over to the survivors; and certainly he did not intend these legacies to go over upon an indefinite failure of issue of such daughters, perhaps long after his death. ■</p>

Frederick Holman, who died on 21st August, 1820, seised of a hotel at Chester Springs,- and some lots of ground, in his will directed that his wife Margaret, “ during her widowhood or natural life,” should “have and enjoy in full” all his “estate and effects, real and personalbut in case of her second marriage, or death, all to be sold by his executors, and of the' proceeds the widow to have one-third, and the residue to be divided equally among his six children.

See the report of this case in 10 Harris. The auditor reported an account in which the executor was charged with interest on moneys received by him and charged in his first account, from the times of receipt respectively, and credited with interest on the sums paid by him from the date of the respective payments.

<p>1. Before the Act of 14th April, 1853, giving jurisdiction to a single judge of the Quarter Sessions in Philadelphia county, one judge only of that Court had not jurisdiction of cases arising under the poor laws.</p> <p>2. The clerk of the sessions, in a controverted matter, had no power to enter a judgment or order in the absence of the judge who directed it although a written order had been transmitted by the judge for the purpose. The sentence, judgment, or order in a case in the sessions should be pronounced in open Gourt.</p>

These were three cases of scire facias issued on claims filed against three adjoining houses on Vine street, for lumber furnished for their erection. There was an apportionment to each of the houses. The pleas were non assumpsit, set-off, and payment with leave, &c. The plaintiffs were Campbell & Pharo v. Furness, builder, and Pratt, owner.

Ejectment to September Term, 1853, by Frederick Stoever v. James B. Rogers, to recover the possession of. .a lot of ground about 30 feet wide by 100 deep, being the site of the western abutment of the old bridge at Schuylkill Falls. The Schuylkill Navigation Company was admitted as co-defendant. , The plaintiff and the company each claimed under conveyances from Robert Kennedy and Conrad Carpenter.

After testimony was heard before the auditor, an issue was asked on the part of the accountant, to try whether the good-will of said house was of any value, and if so what; and other facts. The auditor, in his report and distribution, charged the accountant with $900 for the'good-will of the said house; but the Orphans’ Court directed an issue' to try its value, and the jury found - $124 as its value.

<p>ERROR to the District Court, Philadelphia.</p> <p>George Ferree brought suit to recover $800 and interest, for rent claimed as due him by Wilkinson. The latter claimed a set-off, to the amount of $250, being one-half the sum at which Fer-ree had sold to him the fixtures and the good-will of a store. These had been sold for $500, which Wilkinson had paid. On his part testimony was offered to show that the title of Ferree to one-half of the fixtures had failed. On Ferree’s par/; witnesses were examined, who testified that the fixtures were in fact worth only from $15 to $25.</p> <p>The judge below instructed the jury that, if they found that the title to the part of the fixtures had failed, then they should allow as an off-set against Ferree’s claim the real value of the articles as fixed by the testimony, and not the price paid by Wilkinson to Ferree; that the price so paid was not conclusive. To this instruction exception was taken: and it was assigned for error.</p> <p>The jury found for plaintiff $300, allowing but $18 for the fixtures.</p> <p>The measure of damages was not the value of the articles at the time of the sale, but the price set upon them by the parties and actually paid by the vendee. A party selling, as his own, personal property of which he is in possession, warrants the title; and if, by reason of defect of title, nothing passes, the purchaser may recover back his money, though there be no fraud or warranty on the part of the vendor: 8 W. Ser. 361, per SergeANT, J., in Charnley v. Dulles. The claim of set-off was not in the nature of an action for breach of contract, but for money had and received. The money may be recovered back, the party electing to consider the contract at an end: 5 W. $ Ser. 106, ROGERS, J., in Smethhurst v. Woolston.</p> <p>It was submitted as improbable that the defendant paid for the fixtures much more than they were worth. But it not being alleged that the plaintiff warranted the value of the fixtures, or made any fraudulent representation with respect to them, if the title failed as to part of them, the measure of damages was their real value. The price paid was not conclusive evidence of the damage suffered: 1 Smith's Leading Cases 77 (43 Law Lib. 145), and notes; 4 Hill 625 ; 10 Barbour 211; 5 W. $ Ser. 106 ; 2 Starkie on Hv. 1243; 5 Cowen 152; 1 Porter 273; 3 Baiole 44.</p>

<p>Error to tbe District Court, Philadelphia.</p> <p>This was an action of indebitatus assumpsit, by The Susquehanna Boom Company v. Jerome Gr. Kidder, to recover for service rendered. *</p> <p>In 1846, an Act was passed for the incorporation of the “ Susquehanna Boom Company,” by which the company was authorized to erect and maintain, between Williamsport and the mouth of Quineshehocque Creek, a boom or booms, with piers, for the purpose of stopping and securing logs, and other floating lumber —the booms not to impede the navigation. By the 6th section, the corporation was authorized to charge and collect toll or boomage upon the lumber boomed, rafted, and secured, viz., 50 cents per 1000 feet, board measure, for certain kind of logs; and for other lumber in proportion; and they were to have a lien on the lumber thus boomed, for the payment of boomage and other expenses, till paid. By a,subsequent section it is provided that if any person had lumber on the river which he did not desire to be rafted at the booms of the company, he was to give notice in writing to the,company, and in that event it was to be turned through the booms, for which eight cents for each board log might be charged, and a reasonable compensation for other kind of lumber — for which a lien to exist till paid.</p> <p>The defendant alleged that his agent, who had charge of the lumber, had not made any contract for the boomage of the lumber — that the boom of the Company was not completed, and that the Company had no right to charge toll.</p> <p>On the part of the plaintiff a witness testified that he was present at a conversation in 1851, between the agent of the Company and an agent of the defendant, and that a conversation had between the two in regard to booming the logs -was reduced' to writing by the agent of the defendant; one asserting that it was, a contract, and the other that it was not. The paper was subsequently left at the offece of the defendant in Boston. The witness said he,did not know whether or not the price was stated in the paper.</p> <p>On the part of the plaintiff it was further testified that the boom of the company was used by an agent of the defendant in the spring of 1850, for stopping several thousand of his logs, and that without the boom they would have gone down the river — that the main boom was not extended as far as it afterwards ivas, but that there was then sufficient room in it for the plaintiff’s logs.</p> <p>Evidence was given under objection as to what the stoppage of logs in the boom in question was worth. This was the subject of the 1st and 2d bills of exception.</p> <p>A number of points were submitted on part of the defendant: 1. That before the company could charge toll, it must be shown that the boom was constructed according to the Act of incorporation. 2. That the Act having provided a special remedy for the collection of toll, it must be pursued. That to enable the plaintiff to recover for toll, they must allege in the declaration and prove a special contract to pay the toll. The 3d and 4th were to the same effect: the 6th and 7th were to the effect that none being laid and proved, there could be no recovery.</p> <p>HARE, J., reserved the points, except the first and fifth. He affirmed thejfrsi; and as to the fifth, he charged, that the plaintiff could not recover by virtue of the power conferred by the Act to demand tolls. But he charged, that if there was a valid contract in reference to the use of the boom, the plaintiff could enforce it. “ All that the law requires to constitute a contract, is a benefit conferred by one party, and accepted by the other as a matter of business, and not as a gratuity, and with the assent or understanding that the one is to incur a debt or obligation, and that the other is to be entitled to make a charge. When this is the case, it is not necessary that the price should be fixed, for the law will imply that he who performs the service shall receive as much as he reasonably deserves to have.” He added, “ In the present instance a conversation took place between the agents of the parties, in which the price to be paid for the use of the plaintiff’s booms came in question, although it was not fixed, and in which the defendant’s agent said that he would not use the booms, because they were full of logs. Subsequently, these logs were removed by the plaintiffs’ agent, to make way, it is said, for the defendant’s logs, which came down the river, and floated, or were towed by the defendant’s agent, into the booms. This, with the other evidence in the case, is evidence whereon the jury may find that the defendant is liable to pay for the use of the booms. If they find that the use of the booms was a business transaction as between him and the plaintiff, in pursuance of the previous conversation, they may find a verdict for as much as the service thus rendered was reasonably worth.”</p> <p>January 13th, 1853, verdict for plaintiff for $400.</p> <p>Error was assigned to the admission of the evidence as to the value of the service rendered. That the Court did not answer fully the 2d, 3d, 'and 4th points. In the answer to the fifth and subsequent points; and in the charge as referred to.</p> <p>Though a turnpike company cannot collect tolls on the ground of an implied assumpsit arising from the mere user of the road, where the charter contemplates collection at the toll-houses (2 Penn. Pep. 462), yet an action at law can be maintained on an express agreement tc- pay toll : 2 Parris 164, Beeler v. Turnpike; 3 Watts 128, Dorman v. Turnpike Company. The proprietors of a canal bridge may commute the toll for a certain sum by the quarter or year: 1 Pick. 304. In English cases collected in Grant on Corporations 160, assump-. sit on engagements express or implied, has been allowed to recover duties incident to a port.</p>

■ Appeal from the decree- of the Orphans’ Court, Philadelphia, lipón the report of an auditor appointed to' adjust the account of the executors of the will of John Hoff, and to' report distribution. The appellants, Newell and wife, were residuary legatees. under the wijl.

John Hoff, by bis will, dated 15th February, 1848, after directing the payment of all his lawful debts, directed as follows: — 1. “ Should my wife Frances Henrietta Hoff survive me, from the day of my death, during her widowhood, I give her a life estate in tho house and lot I reside in, together with the appurtenances thereto belonging, including the various articles of furniture, and the various provisions on the premises, together with the policy of insurance thereon.”…

<p>1. A conveyance of land Pounded on a road or street gives tlie grantee a title to the middle of the road or street, if the grantor had title to it and did not expressly, or by clear implication, reserve it: and if the road or street be vacated, the adjoining owners claiming under the grantor have a right to use the land it had occupied as their own, the party on either side not extending his dominion beyond the centre of the street.</p> <p>2. The legislature has the power to vacate a public street without the consent of those whose private interests may be affected by it, and without providing for compensation for the injury.</p> <p>3. The answer to a bill in equity denying the statement in the bill, and averring otherwise, is to be taken as true, in the absence of evidence to tho contrary.</p>

This was an action of trespass on the case by William Beach v. William Wheeler, for maliciously instituting suit against the plaintiff in October, 1849, and having him arrested and imprisoned. The suit by Wheeler against Beach was for an alleged infringement of a patent procured by Wheeler, on 25th April, 1846, for an improvement in curry-combs.

This was an action by Anderson v. Primrose on two negotiable notes, each dated 12th July, 1853, payable by Primrose to the order of Brettargh & Stedman, each for $540; endorsed by the payees.

<p>ERROR to the District Court, Philadelphia.</p> <p>This was an action of trespass by W. B. Dick v. Lindsey & Cooper, for taking away certain cloths, cassimeres, vestings, a show case, and other articles of shop furniture.</p> <p>An execution against W. McMackin, a tailor, was levied upon his stock of store goods and shop furniture, and on the 9th August, 1851, the property was sold at public, sale. The plaintiff, through an agent, had a portion of the property purchased, and-the net amount, exceeding $700, was paid to the execution-creditor. The property was left in McMackin’s store, in order that he might make up the goods' into clothing, and thus make profit upon it; he accounting to Dick for the price paid for the property.</p> <p>In September following, Lindsey & Cooper having obtained judgments against McMackin, had the goods again levied on. Notice of Dick’s purchase was given, but the goods were eventually sold under Cooper’s execution, and this action was afterwards brought.</p> <p>On the trial, it was testified, under exception, by a witness on part of the defendants, that the agent of Dick said at the place of sale, before the salé began, that several of McMackin’s creditors were going to purchase the goods; and the witness thought he added, and return them to him; and that every bid the witness made would be against McMackin. The witness said he made but one bid, did not get what he bid for, and did not communicate the statement to others. He said the room was crowded. He added that the reason he did not purchase was because the goods were sold too -high.</p> <p>Another witness stated that he stopped bidding at the sale when he heard that the goods were being bought in for McMackin, except in one instance, where the agent seemed to manifest no interest in the lot offered. He further stated that the goods were sold for 25 per cent, less than he would have given for them, and that • Cooper was present. The witness said he heard what he stated from the. previous witness, and not from the agent.</p> <p>The agent was called, and testified that he had said to the person first examined, that he had understood that a number of Mc-Mackin’s friends had made up a sum of money to buy in the goods and let him have the use of them, and that he, the agent, was desirous that the money should buy as many of the goods as possible ; but- that he had no recollection of saying that every bid would prejudice McMackin.</p> <p>Steoud, J., charged, that if the goods were purchased by the plaintiff and left with McMackin to be made into clothing, and disposed of at his pleasure, he to retain the profits, or were given to him, they were liable, in his possession, to sale upon execution against him.</p> <p>In answer to the second point submitted by the counsel of the plaintiff, he charged, that no inference could, legally, be drawn from the fact of the goods remaining with McMackin, after the purchase, to show that they belonged to him.</p> <p>To the third point, he charged, that as between the purchaser and McMaekin’s creditors, the goods were liable to execution. To the fourth, That the declarations of the agent were admissible, even though he was not authorized to request other bidders not to purchase, or to make statements in regard to the destination of the goods. To, the fifth, he refused to charge, that unless the statement of the agent, that the goods purchased were to be for McMackin’s benefit, was false, the request to. other persons not to bid, did not invalidate the sale.</p> <p>Verdict was rendered for the defendants.</p> <p>Error was assigned to the first two paragraphs of the charge, as quoted, and to the answer to the points as stated.</p> <p>The authority of the agent was merely to purchase the goods, and his declarations were outside of such authority: 10 Ves. Jr. 123; 6 Watts 487 ; 2 Whar. 340. 2. As retention of possession, by a. former owner, of personal property sold at sheriff’s sale, is not an index of fraud; the possession in him should not be an indication of title in him; 2 Berma. Rep. 478-481, Myers v. Harvey. 3. The bailment in the case was not a gift nor a sale, but a bailment for sale. 6. If the allegation that the goods purchased were to be left with the defendant, were true, it did not invalidate the sale: 1 Harris 515, Walter v. Gernant.</p> <p>The statement that it was designed to purchase the goods for McMackin prevented competition. The declarations of the agent were not admitted as independent declarations, but as part of the res gestee — they were not foreign to the business in which he was employed: 8tory on Agency, §§ 134-137. His declarations respecting the subject-matter are in the nature of original evidence, and not of hearsay: 1 Grreenleaf, § 113. Where evidence of his act is admissible what he said about the act whilst doing it is so: 8 Watts 392.</p> <p>3. Where a chattel capable of consumption is left, with the debtor, by a purchaser at a judicial sale, and is left with him for his use and consumption, or if the same chattel is not to be returned to the lender, it will be liable to execution as the property of the debtor: 1 Jones 264.</p> <p>6. A false representation will avoid a sale: 1 Harris, Walter v. Gernant; so a representation intended to make a. debtor’s property sell for less than it otherwise would, should also avoid it. Where the plaintiff on the sale of a barge by auction, falsely stated to the company that he had built the barge for the defendant, but had not been paid for it, on which no person bid against him; it was hold that he acquired no title by the sale: Fuller v. Abraham, 6 J. B. Moore’s Rep. 316.</p>

<p>ERROR to the Common Pleas, Philadelphia.</p> <p>Daniel Fisher, the holder of a promissory note, brought suit against John Smith, before a justice,of the peace, on a promissory note, as follows:—</p> <p>Philadelphia, Sept. 6, 1852.</p> <p>Four months after date, I promise to pay to the order of John Smith, forty-three dollars and twenty cents, value received.</p> <p>(Signed) StepmbN McGowan.</p> <p>(Endorsed) John Smith,</p> <p>' Daniel Fisher.</p> <p>On the trial a notary testified that he received the note in suit from the Northern Liberty Bank for protest. That his custom, when the residence of the drawer and endorser were not upon the note, was to inquire of the clerks of the bank and look in the Directory, and inquire of persons who he thought might know, as to their residence. That he had no distinct recollection of what he did in this case, but had no doubt that he pursued his uniform practice. He further stated that, being unable to find the drawer and endorser, he returned the note to the cashier of the Bank of Montgomery County, from which it had been sent to the Northern Liberty Bank, informing the cashier that he had made diligent search for the drawer and endorser, bnt was unable to find them.</p> <p>Kelley, J., charged, tbat due diligence had been exercised in the matter, and that the verdiet should be for the defendant.,</p> <p>Such instruction was assigned for error.</p> <p>It is incumbent on the holder of. a note to make reasonable effort to ascertain the residence of the drawer: 2 W. §• Ser. 405. Inquiry merely of the directors or officers of the bank, respecting the residence of the first endorser, is not due diligence: 3 Whar. 116. Inquiry must be made of the parties ; QMtty on Bills 450; Story on Fro. Notes 316'. The holder cannot avail himself of the ignorance of the notary, but must show that he himself made proper effort .to ascertain the residence: 5 Barr 181-2, Haly v. Brown; 7 Louis. Bep. 11. The plaintiff himself should have been inquired of: 3 Green-leaf 233.</p> <p>The note being dated at Philadelphia, it was the proper place where to make inquiry as to residence: 2 Oaine’s Bep. 127. No evidence was given on the trial as to the residence of the defendant or of the maker.</p>

A petition of Elizabeth Tanner, a feme- covert, and John Tanner her husband, a.s guardian of his children, was presented to the Orphans’ Court, praying for a citation to George R. Vanleer,. tenant, to. show cause why an order of sale, free of his lease, should not be made under the Act of 18th April, 1853: Acts, page 503, &e. The date of the presentation of petition was not stated.

IN this case the rector, churchwardens, &c., in trust for Christ Church Hospital, were plaintiffs, and the county of Philadelphia was defendant, arid a case was agreed upon to the following purport :— In an Act of 6th April, 1833, it was declared that it' appears that Christ Church Hospital has, for many years, afforded an asylum to numerous poor and distressed widows, &c., -and it was enacted that the.real property, including ground-rents, belonging and payable to the said…

' The deed, in which was alleged the nominal consideration of $100, was absolute in its terms, and was for all the estate, real, personal, and mixed, of the grantor, wheresoever the same may be situate.

<p>TROVER, in the District Court of Philadelphia for 44,000' segars. Pleas, not guilty, and former recovery. The suit was brought by Zane against Simes & Co., in March, and tried on the 1st November, 1853. On the trial, the plaintiff below gave in evidence the receipt of the defendants for segars, “ as collateral security for the payment of $416 in sixty days” from the date, 20th August, 1851; and then called witnesses, who testified that on the 24th March, 1852, the plaintiff had demanded a settlement fronj the defendants, and failed to obtain it; and that, on the 7th December, 1852, he had demanded a return of the segars, and they were refused. He further gave evidence that, in the fall of 1851, the defendants commenced selling the segars by retail, and sold some of them at prices varying from one to six cents apiece. It seems also that the plaintiff below further gave in evidence the record of a former action in the same Court, brought by Simes & Co. against Zane on the 16th March, and tried on the 3d December, 1852, wherein Simes & Co. claimed the amount of a bill of exchange, $60.80; and also the loan of $416, which the segars were intended to secure; that to that claim Zane pleaded payment; and there was a general verdict 'in his favor, and a judgment entered thereon. And here the plaintiff rested.</p> <p>The defendants, Simes & Co., then called witnesses, who gave evidence tending to show that the defence in the former action was founded upon the pledge of the segars, and upon the sale of them by the defendants; and also that the segars were not worth more than from $5 to $7 per thousand.</p> <p>On this evidence the judge charged the jury, that it was for them to decide whether the whole or only a part of the value of the segars was allowed to Zane in the former verdict, and this, was the matter complained of here. Zane obtained a verdict and judgment for $321.66.</p> <p>argued that Zane could not divide his claim for the segars so as to recover in two actions what he might have, and- therefore is presumed to have, recovered in one of them: 15 Johns. 229; 16 Id. 136; 6 'Watts 373; 5 Barr 153.</p> <p>The verdict in the former action decides no more than that segars enough had been' sold to pay Zane’s debt. There was no conversion of those remaining unsold, until the demand made after the former action.</p>

Philadelphia,. Ejectment for a bouse and lot on tbe Moyamensing.road, below Carpenter- street, and for an undivided half of a lot and 4 houses on .Fifth street, below Christian. John W. Hansell died seised thereof in March, 183.1.,. having made his will devising them, to his son David,' without words of inheritance, and with remainder, “ in case David should decease without issue,” to the testator’s brothers and sisters.

Feigned issue, under the Sheriff’s Interpleader Act of 1848, on the plaintiff’s claim to 252 pieces of printed goods taken in execution at the suit of Fales, Lothrop & Co. against C. W. & S. H. Smith.

<p>1. Testator devised a lot of ground to his sister and two nephews in equal shares, and to the survivor of them, provided the nephews “ leave no heirs and if the sister should survive she should have the sole disposal of it. The sister died, and it was Held that the nephews took the whole in tail with vested cross-remainders in favor of the survivor; and that by barring the entail they became seised in fee.</p> <p>2. The law never raises an executory devise out of a substitutionary clause, that can be construed as giving a remainder.</p>

<p>ERROR to tbe District Court, Philadelphia.</p> <p>Wells’s executor claimed against the church the amount of a certificate of loan of $950 with interest, issued under the seal of the church, and dated 27th July, 1838. This not being denied, the defence was placed on a plea of set-off, under which the defendants claimed pew rent from March, 1848, after the death of the plaintiff’s testator, up to the time of the trial, on one of the pews in the church, granted to him by the trustees, “ subject to a yearly rent-charge of $45.” It appeared that, after the testator’s death, in 1842, his family continued to occupy the pew, and pay the rent; but that since 1848, the rent had fallen in arrears $303.34.</p> <p>The judge of the District Court charged the jury, that there was no evidence to support the set-off, and this is the matter assigned for error here.</p> <p>A pew in a church is personal property, and as such is usually, sold and transferred, and is not a right extinguished by death: 6 W. Ser. 301; 10 Mass. 323; 5 Png. L. P. P. 562; 14 Qonn. 280. His executor is bound on the covenant implied in the reservation of the rent: Qo. Lit. 209 a; 19 State Pep. 9; Rawle on Oov. 362, note 2, 1st ed.</p> <p>A pew is real estate, and the duty of paying the rent devolves on the heirs and not on the executors: 13 Mass. 128; 16 Wend. 28; 5 Png. L. é P. P. 562; 10 Qonn. 280; 7 Parr 329.</p>

In 1832 Mrs. Ann Dunkin, of Philadelphia, died, leaving a will, dated 20th July, 1881, wherein she devised all her estate to her executors, in trust, after payment of debts, to receive the dividends and income thereof, and divide the same “into two equal parts, and pay one of said equal parts to her granddaughter, Ann, wife of John S. Van Rensselaer, for her own sole and separate use, notwithstanding her covertureand the other half to the children of the said Ann, who was…

Isaac M. Post and wife, by deed dated 17th April, 1852, in consideration of $550 paid by Eliza Ann Hutchinson, wife of Jeremiah L. Hutchinson, conveyed to her, her heirs and assigns, a house and lot of ground, with the appurtenances; to have and to bold tbe same unto the said Eliza Ann Hutchinson, her heirs and assigns, to and for the only, sole, separate, and proper use and behoof of the said Eliza Ann Hutchinson, her heirs and assigns for ever, subject to a yearly…

This was an action of covenant by Howland Vanatta v. M. M. Convers, to December Term, 1851, to recover a small portion of purchase-money upon a tract of land sold by Vanatta to Convers by articles of agreement of 17th February, 1851, by which the plaintiff agreed to convey to the defendant by deed with general warranty, a tract of 100 acres, for which the defendant was to pay $700, all to be paid by 1st May, 1851. Before the 1st of May, 1851, the defendant paid about $650.

<p>From tbe Nisi Prius, Philadelphia.</p> <p>This was an action of replevin by Ward & Carryl, trading in tbe name of Ward & Co., v. Robert Taylor, for a barque or vessel, called “ Tbe Royal Saxon,” ber boats, tackle, apparel, and furniture.” Ward died after the issuing of tbe writ. The value endorsed on the writ was $6000. The writ issued on 24th February, 1848. Bail was not given by the defendant, and the vessel was delivered to tbe plaintiff.</p> <p>In September, 1847, “ The Royal Saxon,” a British merchant vessel, then owned by Robert Mclntire, of Londonderry,- Ireland, sailed from that port for the port of Philadelphia, with cargo and passengers, having on board James C. Ingleby, master, Thomas Wall, first mate, and a crew of mariners. The vessel was destined for Philadelphia, or for any other ports or places in the United States, &c., at tbe option of tbe master, as freight or cargo might offer, for a term not to exceed twelve months, or until her return in the intermediate time to her ultimate port of discharge in the United Kingdom. Tbe mariners were shipped and hired at Londonderry, to serve as mariners on board the barque during the voyage. The vessel arrived at tbe port of Philadelphia, having these mariners on board, about October 27, 1847.</p> <p>By virtue of a writ of foreign attachment, issuing out of the Supreme Court of Pennsylvania, at the suit of Magee •& Co., of New Orleans, creditors of the firm of Robert & William E. Mc-Intire, the “ Royal Saxon” was attached by the sheriff of Philadelphia county, on the 8th November, 1847, and bail demanded in $20,000, Captain Ingleby being summoned as garnishee. Afterwards, on the 20th January, 1848, the vessel was attached in foreign attachment, at the suit of Robert Bell, another creditor of R. & W. F. Mclntire. Captain Ingleby not giving' the bail demanded, the vessel was detained at Philadelphia, the officers and crew remaining on board until the sale. Rules were obtained from the Supreme Court for the sale of the vessel.</p> <p>After these rules were obtained, viz., on 21st January, 1848, a libel for mariners’ wages was presented to the District Court of the United States in admiralty, on behalf of the first mate and nine of the mariners; and on the same day process in attachment in rem was issued, to which the marshal returned that on.the 21st January, 1848, he attached the vessel, and found a sheriff’s officer on board claiming the custody of the vessel. The marshal and sheriff each kept a man on board, who continued in charge till the sale by the sheriff.</p> <p>On 24th January, the answer of the captain was submitted, in which the wages claimed rvere admitted; and on the 25th his petition was presented, praying a sale.</p> <p>On the 4th of February a sale was ordered. On the same day motion was made by counsel for leave to intervene on behalf of the attaching creditors.</p> <p>In the Supreme Court, notwithstanding opposition by the garnishee, and motion on his part that the vessel be discharged from the custody of the sheriff, a sale of the vessel was ordered on the 29th January, 1848; and on the 9th February, 1848, the sheriff sold the vessel to Ward & Carryl for $2800.</p> <p>On the 4th February, the admiralty judge ordered the vessel to be sold; and on the 15th February the marshal sold it to Taylor for $1600, and he was put into possession of it by the marshal. Afterwards, viz., on the 24th February, 1848, the writ of replevin was issued.</p> <p>On the part of the defendant it was contended on the trial of the replevin, that the Court of Admiralty had the exclusive legal custody of the vessel.</p> <p>The case was tried before Woodwaed, J., on the 15th February, 1854. Under a charge by the Court, verdict was rendered for Car-ryl, the plaintiff.</p> <p>It was contended that seamen could not come into a court of common law to recover their wages except by personal suit against the master and owner of the vessel: Allott 793; and that they could not be deprived by any proceeding in a common lato court of their remedy in the admiralty court, which it was said was the only court competent to enforce their lien on the vessel: 3 Kent 196, 7; 1 Oonk. 76; 9 Wheaton 409-; The Bold Buccleugh, 22 JEng. Law and Mq. 62-73; 1 Sumner 78, and other authorities. Also cited the case of Taylor v. The Royal Saxon, 1 Wallace, Jr., 311, 235.</p>

The defendant below, being a lock-tender at Manayunk, in the employ of the Schuylkill Navigation Company, was convicted by a justice of the peace of an alleged violation of the Act of 22d April, 1794, prohibiting worldly employment on the Lord’s day. The act of the defendant consisted in opening the lock-gates of the Schuylkill Canal, to admit of the passage of boats upon the demand of their owners or captains engaged in navigating the canal.

<p>1. A lease of land for one year from the first day of April expires on the last day of March of the next year: the first day of April when the lease was to commence being included in the term.</p> <p>2. Land belonging to eleven heirs of a decedent was leased by seven of them, by lease under seal, for one year from the first day of April next following. During the lease the land was sold to one of the lessors by order of the Orphans' Court, and by the conditions of sale, the deed was to be made on the 1st April following: but it was delivered by the administrators on Saturday the 31st of March; Held that the rent became payable at any time after 12 at night of the 31st, and was therefore payable when the deed was to be delivered; and the delivery of the deed on the 31st of March did not entitle the purchaser to the rent as becoming due after he acquired title.</p> <p>3. The lease being by the lessors jointly, the plaintiff, being one of them, could not recover under it his fractional part of the rent. The contract being joint, the remedy on it must be joint also. If there had been no contract, and the action by one of the heirs had been for use and occupation, whether he could recover his proportional part of the rent not decided.</p>

<p>• 1. When abandonment arises from mere lapse of time, and there is no dispute as to the length of it, it is a question of law to be decided by the Court without regard to the intention of the parties.</p> <p>' 2. After a lapse of twenty years without residence on the land, a claim by settlement would be lost by abandonment.</p> <p>■ 3. Where the excess of the land unpaid for under a warrant in 1792, did not exceed ten per cent., and survey was returned within a reasonable time and payment for the excess made, actual possession of the land without residence thereon was notice, in the interval, of the warrantee's equity; but where on a warrant in 1792 for 50 acres, the survey alleged to have been made under it containing 136 acres, only 50 aeres being paid for, and without return of survey till 1852, although slight evidence of cultivation existed, yet without actual residence on the land, the warrantee had no equity against a subsequent warrantee, claiming by warrant and survey in 1848, with payment of purchase-money and return of survey before the return of survey under the older warrant.</p> <p>4. The attention of the Court below not having been directed to a particular point, this Court refused to notice the omission of it in the charge as a ground of reversal.</p>

<p>ERROR to the Common Pleas of Northampton county.</p> <p>There were two actions in ease by Edward Lawall; one against Stephen D. Rader, and the other against Charles Rader, both to August Term, 1849.</p> <p>On the 29th of January, 1846, Lawall and Stephen D. Rader made an agreement in writing, under seal, by which Rader bound himself to build and finish for Lawall, in good and workmanlike manner, a house, including cellar, foundation wall, steps, &c. A roof was not specified in the contract. Lawall, on his part, agreed to pay for the house the sum of $890, to be paid in specified amounts, at specified times.</p> <p>The first payment of $145 was made on the 6th of February, 1846, and a receipt for that amount was written on the back of the agreement, and signed by Stephen D. Rader. At the same time a note was given for the same money, made jointly by S. D. Rader and Charles Rader; the understanding at the time being that in case the house should not be built according to the contract, Lawall might have his remedy upon the note.</p> <p>Afterwards a further agreement was endorsed on the first agreement, as follows:—</p> <p>“ It is further agreed this 21st day of June, 1846, between the within-named parties, that the said Stephen D. Rader is to put a slate roof on said house, and that the said Lawall is to pay $35 over and above the amount within named for putting on said roof. Witness, &c. Signed by the two parties, but not under seal.</p> <p>On part of the plaintiff it was alleged that the house was not built according to contract, and the two suits were instituted. In the suit against Stephen D. Rader, a breach of contract was alleged in the first count; the other was upon the note.</p> <p>In the other suit, the declaration was upon the note only.</p> <p>In each case the plea was non assumpsit. The cases were tried together.</p> <p>On the trial, the note was given in evidence, and also the two agreements; and evidence was given, on part of the plaintiff, in order to show that the house was defectively constructed.</p> <p>McCartney, President Judge, in his charge, observed that the construction complained of as defective was in the body of the building, for which the first agreement under seal provided, and not in the slate roof; and charged that the two contracts were consistent, and not in collision with each other; and that the defects provided for in the first agreement could not be remedied by an action in ease.</p> <p>Yerdicts were rendered for the defendants.</p> <p>Error was assigned to the instruction.</p> <p>It was contended that the two agreements could not be executed together, and that the character of the last agreement was to determine the character of both. Cited 2 Watts 457, Yicary v. Moore; 6 W. Ser. 439, Ellmaker v. Insurance Company. This rule renders more than one suit on the agreements unnecessary.</p> <p>There were cited 5 Oowen, 506, Franchot v. Leech; 6 Harris 44, Harley v. Parry: 2 Whar. 75; 2 W. ¿ Ser. 216.</p>

<p>1. Each assignment of error must be specified particularly and by itself; and errors not assigned according to the rule of Court are considered as waived.</p> <p>2. An assignment that “the Court erred in confirming the z-eport of the auditor” was not sufficient to indicate the point intended to be raised.</p> <p>3. The power of the Orphans’ Coui-t “to make distribution” of estates in the hands of executors and administrators, “ to and among the persons entitled to the same,” embraces creditoi-s as well as heirs, next of kin, and legatees. The power to make distribution among heirs or legatees involves the power to ascertain the amount of the debts.</p> <p>.4. 'Each person has the right to be heard in support of his own claim and in opposition to every other claimant who interferes with it.</p> <p>5. An executor in the settlement of his account is chargeable with a debt due by himself to the estate.</p> <p>6. Where the facts have been found by an auditor and his report confirmed by the Court, there must be flagrant ei-ror to justify this Court in interfering with the report.</p> <p>7. Where it does not appear from the record whether the auditor was sworn or not, after approval of the report by the Court it will be presumed in this Court that he was qualified, or that it was waived at the hearing.</p>

<p>1. The constitutional right of trial by jury exists only in actions at common law, and after issue joined, and not after judgment, and does not exist in motions for summary relief against abuse of the process of tbe Court.</p> <p>2. Because the grounds upon which a judgment entered on warrant of attorney, without suit, was stricken oif do not appear of record, it is not to he presumed that the Court below acted without sufficient evidence; the presumption is to the contrary.</p> <p>3. Where a warrant of attorney under which such a judgment was entered, had not been filed in the Court below, as regularly it ought to have been, whether inserted in the bond or annexed to it, or conferred by a sqiarate paper, it may be produced and examined in the Court of error, and the facts involved may be determined by the latter Court or an issue directed to try them.</p> <p>4. All the papers relating to the power to confess judgment must be construed as one instrument.</p> <p>5. A bond, dated 27th January, 1854, was conditioned for the payment of the principal sum at any time within three years, three months, and fifteen days from the date thereof, with interest; the first payment to be made “ on the 27th day of July next ensuing the date hereof, and thereafter half-yearly from that day” — Provided, that if at any time default be made in the payment of interest “ for the space of sixty days after any specified payment shall fall due,” then the whole principal debt shall, at the option of the obligee, be payable immediately, and payment enforced; — and provided, also, that the lien of the bond shall be limited to certain mortgaged premises, and shall not be entered up or become a lien upon any other property “ unless default be made in the payment of interest as above specified, when the same may be at once entered and execution had thereon.”</p> <p>A warrant of attorney, stating the condition of the bond and the first proviso therein, was executed of the same date. On the 20th October, 1854, judgment was confessed by attorney, the bond and warrant not being filed of record; which judgment, the Court below, after receiving evidence by depositions of the payment of interest on the 23d September, 1854, directed to bo stricken off.</p> <p>Held that it appearing from the warrant of attorney produced in this Court, independent of the depositions, that the interest on the bond was not in arrear for sixty days, judgment was irregularly entered, and was properly stricken off.</p>

<p>After judgment on bond and warrant of attorney entered in the District Court, Philadelphia, judgment on transcript thereof was entered in Chester county. Subsequently, the judgment in the District Court was 'stricken off because entered contrary to the agreement of the parties. Held that the judgment in Chester county depending on the first judgment fell with it.</p>

<p>ERROR to the Common Picas of Chester county.</p> <p>This was an action in ease by John Chrisman v. Charles M. Wheatley, to December Term, 1853, for having diverted a portion of the water of a small stream from its natural channel, and also for having corrupted the water in the natural channel, part of which flowed into an artificial channel, to the injury of the plaintiff.</p> <p>The stream of water, in its natural channel, flowed over the land of Ohrisman, the plaintiff. In 1791, the farm of the plaintiff, and also the farm a part of which was occupied by the defendant, belonged to Lewellyn Davis, who, on 21st February of that year, conveyed to his son, Joshua Davis, the farm of 96 acres and 86 perches, now belonging to the plaintiff, together with the privilege of digging and keeping in repair a dam and artificial watercourse leading from the stream on the upper tract belonging, at the time of the trial, to Joseph Funk, and through a part of said tract into the farm conveyed to said Joshua Davis. The watercourse was stated in the deed to be “ for the use and purpose of watering the meadows in the above described tract of land for the use and benefit of Joshua Davis,” his heirs and assigns, for six days out of seven, when needed for that purpose; and at all other times, and when not so needed, the water was reserved for the use of the upper tract. The artificial watercourse leads along a meadow-bank, and passes through the plaintiff’s barnyard (where he was accustomed to use it to water his horses and cattle) to another meadow.</p> <p>The defendant was the manager of lead-mines of the Brookdale Mining Company, whose works were on land leased 'from the said Joseph Funk, being a part of the upper tract of Lewellyn Davis, and also of works of the Wheatley Mining Company: and it was alleged by the plaintiff that impure water from the mines was pumped up into the channel of the stream so as to render it unfit for watering his cattle and for domestic jrarposes, and that the water was diminished in quantity.</p> <p>On the trial, the deed to Joshua Davis was given in evidence on part of the plaintiff; and testimony was given to show that the water of the stream was diminished in 1853, and that it was caused by a portion of the stream being carried to the Wheatley Works.</p> <p>On part of the defendant, evidence of a contrary character was given, and that the water from the mine was not usually unfit for the use of horses and cattle.</p> <p>After the defendant’s case was closed, the plaintiff offered to prove that he had enjoyed the use of the water for watering his cattle in the fields and barnyard for above twenty-one years. It was objected that such evidence was contrary to the limitation in the deed. The objection was overruled, and evidence was given of the plaintiff having used the water of the ditch for twenty-five years for watering his cattle.</p> <p>The plaintiff also offered to prove that the water in the artificial channel rvas muddy, and unfit for watering cattle. This was objected to as immaterial, but was admitted.</p> <p>The defendant’s counsel, in their second point, asked the Court to instruct the jury that the defendant was entitled to a reasonable use of the water for the purpose of his business, and that if the jury believed that no more than a reasonable quantity for such purpose was used, as for the creation of steam to drive his engine, the plaintiff had no cause of complaint. The Court declined to affirm the point. "</p> <p>The defendant’s counsel, in the third and fourth points, also asked the Court to charge that the plaintiff’s right under the deed to Joshua Davis was not to be extended to admit of compensation on account of the water in the artificial watercourse being rendered unfit for watering his horses or cattle.</p> <p>HÁINES, President Judge, charged that the defendant, claiming under the owner of the upper tract, had the right to the use of the stream on his land for any legal purpose, provided he returned it to its channel uncorrupted and without any essential diminution ; and that the size and capacity of the stream should be considered; and that any interruption of the plaintiff’s rights, whether those of a riparian owner or by means of the artificial construction on his own ground, was an injury for which an action would lie, unless too trifling for the law to notice.</p> <p>He further charged that though the -plaintiff’s claim under the deed was not to be extended beyond its terms, or to purposes not contemplated in it, yet that if the plaintiff showed a use by him of the water for twenty-five years for purposes not granted by the deed, or adverse to it, the plaintiff had a right to recover damages for any essential, perceptible diminution or impurity affecting such right.</p> <p>January 8, 1855, verdict for plaintiff for $341 damages.</p> <p>Error was assigned, first, to the admission of testimony as to the use of the water ■ for watering cattle for above twenty-one years. Second, in admitting testimony to show that the water in the artificial channel was rendered muddy or impure. Third, to the charge, in reply to the second point, that the defendant was not entitled to the use of a reasonable quantity of the water for his business, &c.; and, fourthly, to the charge in reply to the defendant’s third and fourth points.</p> <p>The purposes for which the water in the ditch was to be used were expressly limited to watering the meadows, and, the terms thus appearing, there was no ground for presuming a grant for other purposes: 20 Pick. 291; 2 Metcalf, 457; 6 Ser. R. 185; 7 Watts 382; 8 Crunch 229; 9 Lana, 301. The use of the water for watering cattle in the barnyard, through which the water passed from one meadow to another, was not such a use as the defendant was bound to notice or prevent. Having the right to the water for irrigation, his waste or use of it for other purposes was not material to those who claimed under the grantor, and therefore could furnish no ground for the presumption of a second grant.</p> <p>As to the third and fourth points.. There was no evidence that the upper proprietor ever was aware of the water of the ditch being used for watering cattle. Such knowledge, if possessed, should have been shown, as such knowledge and acquiescence is the only evidence on which a presumption of a grant could be founded: 9 Ser. ¿> JR. 26 — 33, Cooper v. Smith. Besides, such use was not injurious to the owner of the land above, and he could not sue therefor: 5 M. Welsby 220.</p> <p>As to the second point, the question is, whether the use of the water is to the injury of the other proprietors, or not: 4 Mason 401; 3 Kent 440. The use should be'reasonable, so as not to render it useless to others interested, or materially diminish it, or affect it® application by proprietors below: 3 Gaine 307; 15 Conn. 356; 17 Johns. 306; and the extent of the use was for the jury: 6 Barr 32.</p> <p>It was a part of the plaintiff’s case, that he had used the water in the ditch for various purposes, for more than twenty-one years; and having omitted to show it at first, was permitted afterwards to prove its use for above twenty-one years. The admission of the evidence was discretionary with the Court: 4 Harris 305. The right to the water was claimed by user for twenty-one years and more. The terms of the deed, “ for the use and purpose of watering the meadows, ho., only showed the inducement to the grant, and were not words of restriction. But the grantee was entitled to the entire beneficial use of the water. The use for twenty-one years manifested the construction by the parties.</p> <p>But, independent of any right under the deed, the user for twenty-one years and more, for watering stock, gave a title by prescription to use the water for that purpose in its natural state and ordinary purity. It amounts to a conclusive presumption of a right: 10 Ser. JR. 69, Striekler v. Todd. It is not necessary to show a knowledge, by the defendant, of the use of the water in any particular way: 8 Harris 331, Garrett v. Jackson. (See also same book, p. 458-463, Beimer v. Stuber.)</p> <p>The answer to the second point, in connexion with the whole charge, was in accordance with the decision in Miller v. Miller, 9 Barr.</p>

ERROR, to the Common Pleas of Northampton county. This was an action to January Term, 1851, in which Samuel Yohe was plaintiff, and The County of Northampton was defendant. Samuel Yohe, the plaintiff, was treasurer of the county of Northampton for the years 1848 and 1849.

<p>ERROR to tbe Common. Pleas of Bradford county.</p> <p>This was an action on the case by Lewis D. Eowler v. George Jenkins, for removing a fence, by which injury was sustained by the plaintiff.</p> <p>Eowler and Jenkins owned lands adjoining each other, the division line running east and west. A public road had been laid out on the division line through their unimproved land. Subsequently each party cleared off his land to the road, and put in a crop of wheat, and in the spring following each one built a fence to secure his crop, the fences meeting at the centre of the road, and obstructing it. It did not appear from the evidence brought up that the road had been opened when the fence was removed. A witness testified that he was one of the commissioners when the road was laid out. He added : “ After we were there, and laid.out the road, there was no act of any commissioner, to my knowledge, by way of opening the road. I think it was not cleared out or opened on the side of the hill where it was laid until after -the crop of wheat was taken off.”</p> <p>After Jenkins had his wheat taken in, and after Eowler had commenced to cut his wheat, a part of the fence was removed by Jenkins, and cattle got into the field. Eor the injury caused by them the action was brought.</p> <p>On part of the defendant the Court was, inter alia, asked, secondly, to charge, that if the parties by agreement or otherwise built their fences so as to meet in the centre of the highway, either of them might at any time remove the part of the fence •put up by him in the highway, and that the other party had no right of action for injury to his crops by cattle of others coming upon his land over the part of the highway from which the fence had been removed.</p> <p>Wilmot, J., charged that the “ road was laid by authority, and dedicated to the public use, and the fence was an illegal obstruction.” That the second point was correct with the qualification, that if the defendant threw down the fence out of motives of malice towards the plaintiff — that he acted from a wicked and wanton purpose to do tbe plaintiff an injury, tbe action could be sustained.</p> <p>Verdict for plaintiff for $8.</p> <p>Error was assigned to tbe portion of tbe charge referred to.</p> <p>All contracts against-tbe general policy of tbe common law, or tbe provisions of a statute, are void: 4 Ser. R. 172; 3 Watts 264; 5 Barr 452. It is not material that tbe defendant bad enjoyed benefit from tbe contract: Olvitty on Qon. 653: 4 Ser. M. 151 — 173. Tbe fence was a nuisance, and could be abated by any one. Tbe act being lawful, an improper motive did not change its character: 9 Harris 501. Jenkins bad tbe right to relieve himself from a continued, violation of law.</p> <p>It was alleged that there was such evidence of tbe laying out and opening tbe road as made tbe fence a nuisance; tbe commissioner did not testify to an actual opening of it on tbe ground where tbe fence was placed.</p> <p>It is not contended that an action could be sustained against tbe defendant if be bad failed to erect tbe fence; but that after it was erected be bad no right to remove not all of it, but sufficient to enable cattle to enter — not acting from a sense of duty to tbe public, but out of malice toward. tbe plaintiff, and for tbe purpose of doing him injury.</p>

Action of debt by John Brown and John Hinkle, administrators, &c., of George Hinkle, deceased, v. Solomon Hummel, administrator, &c., of Christian Hummel, deceased. Held: and the proceedings confirmed in the Orphans’ Court of Northampton county.

<p>ERROR to the Common Pleas of Susquehanna county.</p> <p>This was a scire facias on a mechanic’s lien, in fayor of Negus & Stilwell v. A. Bryant. Plea, payment, with leave, &c.</p> <p>The plaintiffs, being carpenters, by a written contract, dated 5th June, 1852, agreed to build for the defendant a tavern-house, after an annexed plan and specification, which were to be considered a part of the contract; the work and materials to be as described in the specification annexed. The consideration was to be $2000, payable in instalments, the last on 1st April, 1853. Credit was given on $1039.90; the claim filed being for $1715.19. The specifications were particular and numerous. The work was to be done in a good and workmanlike manner. Lumber to be of good quality and well seasoned. The house was to be painted two coats white outside, with first quality quaint. “ Principal story to be ready for the masons by the middle of August, &c., and all to be completed by the middle of October.”</p> <p>Agreement as to bill of $383 for extra work was signed by the parties, August 27, 1852.</p> <p>It was stated, on part of the defendant, that the work was not completed till the 12th December, before which time the defendant commenced business in the lower rooms, extending it as fast as the other stories admitted of it. That the seventy doors in the house had’shrunk, and so with respect to the floors, and that the outside paint in places pealed off. The plaintiffs’ excuse for this was, that the doors were fitted, hung, and primed before the plastering was done, and were then taken down and piled in different parts of the house, and were afterwards re-hung, and found to be too large; and that the defendant directed them to be trimmed or reduced till they would shut.</p> <p>As to the floors, it was alleged, on part of defendant, that their shrinking was caused by mortar suffered to fall upon them, without protection from shavings or otherwise, and that the plaintiffs were present at the time and made no remonstrance on the subject. The plaintiffs alleged that the paint peeled off because the wood work had, at the time, contracted dampness from the plastering.</p> <p>On part of plaintiffs a witness testified that he worked at the building, and that the defendant was there every day whilst the work was progressing. He stated the age of the building and the number of the doors. He further said that they had a plan of the work; that Bryant had it in his possession; heard Bryant say, on the trial before arbitrators, that he did not know where the plan was; he did not say that he had looked for it. It was a working draft, showing the rooms, their size, &c., and the work. He added, [The work was done according to this plan, except in those respects where Bryant desired changes to be made.] The part in brackets was objected to — see argument.</p> <p>The witness further stated, that by the original plan there was to be a hall on the north end, &c. He said “ I made this draft (nozv exhibited), showing the original plan, and the plan as changed,” &e. By which party the draft was produced was not stated.</p> <p>Exception was also taken to the admission of testimony, that the witness, being requested by one of the plaintiffs to examine the building with a view to testifying, called about a week before the trial, and was refused permission by defendant to go through the house.</p> <p>The Court, inter alia, charged as follows: “ That the defendant being present during the progress of the work, taking no exceptions, and making no complaint at the time; and having occupied and enjoyed the benefit of the plaintiff’s labor, he ought not to be permitted to claim entire exemption from all liability to pay, unless he shows clearly a default, on the part of the plaintiffs, in such important and material respects as would make it inequitable for them to call on him for payment.</p> <p>“ 4. That if the paint material was good; if it was put on at a proper time, and in a skilful and workmanlike manner, and the peeling off was in consequence of the dampness arising from the plastering the building, or other cause over which the plaintiffs had no control, then it is the loss of defendant, and he cannot claim any allowance therefor.”</p> <p>Further, If “ the doors were planed off by the order and direction of the defendant himself, as testified to by the plaintiffs’ witnesses, then the fault lies with the defendant, and he cannot justly claim a deduction or allowance from this cause.” And if the shrinking of the floors was caused by the careless manner in which the plasterers allowed them to be covered with mortar, or from' being subjected to extraordinary heat, the plaintiffs not being responsible' for defects arising from these causes — they were not the subject of defence.</p> <p>"Verdict was rendered for the plaintiffs.</p> <p>Error was assigned: 1. To permitting the witness to prove that the work was done according to the plan or working draft except where defendant desired changes. 2. Permitting proof of the refusal by defendant of permission to the witness to examine the house previous to the trial; and 3, 4, 5, and 6, to the portions of the charge stated.</p> <p>The plan was a part of the original contract, and notice should have been given to defendant to produce it before testimony was given in relation to it: 7 Barr 23; Tidd 803; 1 Grreenleaf 560; 1 Stark. Hep. 225. 2. The defendant should not have been prejudiced for refusing to permit a stranger to the controversy, a selected witness, to go through his house. 3. From the mere presence of the defendant in the house whilst the work was in progress, no presumption to his prejudice should have been drawn: 5 Watts 460, Young v. White. 4. The plaintiffs agreed to do their work well; and if the paint should not have been on at the time it was, it should have been postponed : 10 Watts 110; Ohitty on Con. 630; Platt on Oov. 582. The doors should have been removed out of the house whilst the plastering was being done, especially as the work was delayed: 11 Ser. f B. 319; 2 Id. 415; 8 Id. 333. As to the floors, the plaintiffs should have remonstrated against injury to the floors from the plastering..</p> <p>The plan had been in the possession of the defendant, and on being called on for it before the arbitrators, he said he did not know where it was. Notice to produce it was therefore unnecessary. Whether its loss was sufficiently proved was a question for the court: 9 W. $ Ser. 77. The evidence of refusal to permit an examination of tbe building was proper.</p>

This was an action of debt by James Gr. Smith against The Cash Mutual Eire Insurance Company, on a policy of insurance dated 28d July, 1852, for one year, for $1000, upon a stock of store goods, contained in a frame building of one and a half stories, situate in Washington township, Wyoming county. The Act of incorporation was passed on 14th April, 1851 {Acts 543).

•Action in case, by O’Neil v. Root & Blay. The original narr. was in assumpsit, for goods, wares, and merchandise, sold and delivered. The case was arbitrated and award rendered for the plaintiff for $109.65, from which the defendants appealed. Upon the trial, January, 1852, the plaintiff’s books were given in evidence; and then an offer was made, on his part, to prove that he had lent to the defendants $300, for which a note was received.

Tbis was a case stated in which Reese Gr. Calvert and others were plaintiffs, and John Talbot, executor of the will of John Talbot, deceased, was defendant. John Talbot, about the 6th June, 1883, intermarried with Hannah Calvert, sister of Reese Gr. Caivert, an agreement, not under seal, having been previously executed by the proposed husband and wife, dated on that day, in Delaware county.

<p>ERROR to the Common Pleas of Bucles county.</p> <p>This was an ejectment to September Term, 1854, by William Lovett and another, executors of the will of John Lovett, deceased, v. W. Mathews and J. Flack.</p> <p>On the trial, the plaintiffs offered in evidence a certificate, or certified copy of a record of the Probate Court of Lenawee county, in the state of Michigan, containing a copy of the last will and testament of John Lovett, deceased, there admitted to probate and recorded.</p> <p>To its admission several objections were made, all of them to the effect that the record had not been authenticated according to the Act of Congress; and on this ground it was rejected.</p> <p>The plaintiffs’ counsel then offered letters testamentary, granted by the register of wills of Bucks county, Pennsylvania, to the plaintiffs, upon the estate .of the said John Lovett, late of Michigan, said estate being in the said county of Bucks, together with a copy of the will and probate, and bond to the Commonwealth, dated September 1st, 1854. These were objected to for the same reasons before stated, and were rejected, as it was stated, because it appeared from the record itself that the register admitted the copy of the will to probate, and granted the letters, without legal authority.</p> <p>The rejection of each offer was assigned for error.</p> <p>The copy of the record of probate was in conformity with the provisions of the 12th and 17th sections of the Act of Assembly of 15th March, 1832, relating to registers and Registers’ Courts.</p> <p>The 12th section provides that “ Copies of wills and testaments proved in any other state or country according to the laws thereof, and duly authenticated, may be offered for probate before any register having jurisdiction, and proceedings thereon may be had with the same effect, so far as respects the granting of letters testamentary, or of administration with the will annexed as upon the originals,” &c., relating to the authentication, which, when made, shall be sufficient proof for granting letters testamentary, &c.</p> <p>The 17th section provides that “All original wills, after probate, and the copies of all original wills produced under the provisions of this Act, shall be recorded and filed by the register of the respective county, and shall remain in his office,” except, &e. “ And the copies of all and such of the probates thereof, under the public seals of the Courts or offices where the same may have been or shall be so taken or granted,” &c., “shall be adjudged and are hereby enacted to be matter of record and good evidence to prove the gift or devise thereby made.”</p> <p>The mode of authentication prescribed by the Act of Congress is not exclusive of any other w’hich the states may adopt: 1 Q-reen-leaf Bv. 505.</p> <p>The decree of the register of Bucks county, unappealed from, was primá facie evidence of its validity, and could not be reversed collaterally: 7 Harris 485, Holliday v. Ward; 5 Ser. §• R. 212, Logan v. Watt; 1 W. Ser. 398, Loy v. Kennedy.</p> <p>In addition to objections to the certificates founded on the Act of Congress, it was contended that the paper referred to in the second bill was merely an uncertified copy of the certificate and proceedings which had been before rejected. 2. That it was not authenticated as the Act of Assembly of 15th March, 1832, required; and 3d. That it was not sucb a record as could be given in evidence under the 17th section of the said Act.</p> <p>To an objection that there was not proper evidence that the register of Bucks county had admitted the will to probate, because the certificate of that fact was not signed by him, it was replied, on part of plaintiffs in error, that the certificate has the seal of the officer but not his signature; but that the defect was not noticed in the Court below. It was further contended that the signature was not material, and that it could be supplied: 1 Ser. R. 97; 2 Id. 394 ; 2 Penna. 209.</p>

<p>ERROR, to the Common Pleas of Susquehanna county.</p> <p>This was an action of debt by Sutherland v. Taylor, on a promissory note dated Prattsville, May 11, 1848, for $250, signed D. L. Taylor, and payable to one Noble, or bearer. The defendant alleged the note to be a forgery.</p> <p>On the trial, I. Scudder was called on the part of the plaintiff, and testified that he had seen Taylor, the defendant, write, and that he thought the signature to the note to be his. The note was read in evidence.</p> <p>The defendant then gave testimony to show that he was not in Prattsville on the 11th of May, 1848, the date of the note, but was between one and two hundred miles distant on the 9th May, and for some weeks afterwards.</p> <p>On his part, I. Scudder, previously examined, was called, and testified that lie had seen the plaintiff write, and was acquainted with his handwriting; and that the body of a certain letter there produced was in his handwriting, but that he thought the writing on the margin of it was in a different hand. The letter referred to was one dated Prattsville, June 14, 1849, addressed by the plaintiff to Taylor, the defendant, relating to the note. On the margin of the letter was written, in part, to the effect that positive proof could be found that Taylor was not at Prattsville at the date of the note, and stating, “My book also shows that.” The plaintiff denied having -written the matter on the margin of the letter.</p> <p>After I. Scudder was examined, D. 0. Scudder was examined on part of the defendant. He testified that he was acquainted with plaintiff’s handwriting; that the body of the letter was in his handwriting, but could not say that the writing on the margin was his. He further said, upon further examination, I believe the writing on the margin to be his. But added, “ If the postscript and marginal writing were by themselves, I should be uncertain as to their being plaintiff’s hand; I believe them to be his from the connexion in which they are found, being on the letter.. If they stood alone, I should not recognise them as plaintiff’s hand, on account of their being finer than I’ve ever seen him write. But seeing it on the letter, with the other writing, I believe it to be his.”</p> <p>The writing on the margin was rejected, but the letter was read.</p> <p>Other witnesses were called' to testify to the signature to the note.</p> <p>The Court observed to the jury that a genuine note is presumed to bear a correct date, and to have been made at the place purported; but that if the jury were satisfied that the defendant was not at Prattsville on the 11th May, 1848, it rested on the plaintiff to explain the contradiction.</p> <p>November, 1853, verdict for plaintiff for $329.62.</p> <p>The rejection of the writing on the margin of the letter was assigned for error.</p> <p>The marginal writing should not have been excluded from the consideration of the jury. Where a witness has seen a person write and declared he knows his writing, he may compare the writing in question with writing known or admitted to be in the handwriting of the party: 1 Pa. Rep. 180; 1 Harris 648, Porter v. Wilson; 6 Ser. ‡ R. 312; 5 Binn. 349.</p> <p>The writing on the margin was not proven to be in the handwriting of the plaintiff. The Court may decide whether a paper is sufficiently proved, or may refer it to tbe jury witli the direction not to consider it of any validity unless satisfied of the proof: 5 Bin. 348, 352; 3 Id. 539.</p>

<p>Executors were chargeable with interest on so much of a balance decreed to he in their hands on the settlement of a former account, as was not required to meet contingencies, though the amount was deposited in bank and there remained.</p>

<p>ERROR to tile Common Pleas of SehuyllciU county.</p> <p>This was an action of ejectment to June Term, 1846, by Frederick G. Werntz v. Andrew Russel, Gains Moore, and the Miners’ Bank of Pottsville, for a, tract of ahoye 32T acres of land, situate on the Sharp Mountain, in Branch township, formerly Norwegian, bounded by lands of Hollenback, Klauser, Allen, the New York and Schuylkill Coal Company, and others.</p> <p>The plea was, not guilty, and, on February 17, 1853, verdict was rendered for the plaintiff.</p> <p>The plaintiff claimed under a sale for taxes in the year 1834, under an assessment, for the year 1831, of 300 acres of land, as the property of Samuel D. Franks; a purchase by the county commissioners, and a sale by them,'in 1843, to himself. The regularity of the assessment and sale was contested; and it was further alleged, that the assessment in question was of two other warrants in the name of Samuel D. Franks, on the Mine Sill, in same township, about three miles from the land in dispute.</p> <p>On part of the plaintiff, was given in evidence a warrant to Samuel D. Franks, dated December 23,1824, and survey thereon on 13th May, 1825, for 216 acres 148 perches; an assessment in his name for the year 1825 for 200 acres, in Norwegian township. 2. A warrant to the same, dated August 3, 1825, for 200 acres, and survey thereon on 6th October, 1825, of 111 acres.</p> <p>In 1826, ’27, and ’28, Samuel D. Franks was assessed for 400 acres. In 1829 the quantity assessed was reduced to 300 acres. In 1831 the same quantity of land was assessed in the same name; and evidence was given of a sale, on 9th June, 1884, of 300 aeres, in tbe name of Samuel D. Franks, as being in Norwegian township, for county and road taxes of 1831, and purchased by the county commissioners. On January 28, 1848, the land was sold at commissioners’ sale to Frederick G. Werntz, the plaintiff.</p> <p>There was given in evidence a connected draft of the said two surveys, which, adjoined; and evidence was given of the location of the surveys on the land claimed in the writ.</p> <p>From 1843 till 1853, the assessment was in the name of the plaintiff.</p> <p>A part of the land surveyed on the said warrants to S. D. Franks, appeared to be at the time vacant; but the greater part of it was on land included on the John Gunkle warrant of 1788.</p> <p>The defendants claimed under patent to John Gunkle, dated April 11th, 1798, for 398 acres and allowance; and deduced title to Andrew Russel in March, 1833, when he conveyed one undivided fourth to Miller and Rex; one-fourth to John C. Offerman; one-fourth to Gaius Moore, and retained one-fourth. The interest of Offerman became vested in the Miners’ Bank of Pottsville.</p> <p>Evidence was given that the greater portion of Franks’ surveys claimed by the plaintiff were located on the Michael Gunkle warrant, recited in the patent to John Gunkle.</p> <p>Evidence was given, in order to show that the assessments in the name of Samuel D. Franks, under which the plaintiff claimed, were made of two other surveys of land of Samuel D. Franks’, situate on the Mine Hill, about three miles north-east of the Michael Gunkle tract. The westernmost of the two Franks’ surveys last mentioned covers the Otto tract, and was on land formerly claimed by the Forest Improvement Company. One of these surveys w'as in April, 1823, for 149 acres 113 perches, under warrant in January, 1823; and the other was made in May, 1824, for 203 acres 14 perches, under warrant of 28th August, 1823.</p> <p>The defendants also offered in evidence a deed of release from Werntz, the plaintiff, to Benjamin De Forest, Jr., dated September 28, 1844, for the consideration of $20; and also .offered to prove that the description in the release was of the Otto tract. This'was offered with the view of contending that the plaintiff’s claim under the tax sale was to the Otto land, and that such claim was released. The release was rejected.</p> <p>The defendants showed assessments in their own names from 1834 till 1839, inter alia, as follows:—</p> <p>Russel, Andrew, 96 acres, &c., being one-fourth of a larger tract, &c.</p> <p>Russel Andrew (one-fourth of warrant in the name of M. Gunkle), 96 acres, &c.</p> <p>Moore, Gaius, 96 acres of land, Sharp Mountain.</p> <p>Offerman, John C., same.</p> <p>It was admitted that the taxes on the Michael Gunkle tract thus assessed, from 1834 till 1848 inclusive, were paid.</p> <p>It did not appear that the Michael Gunkle survey was assessed for 1831, or any part of it before 1834, when interests therein were assessed as before stated.</p> <p>It was also alleged, on their part, that the taxes for the year 1831, assessed to Samuel D. Franks, for which the land was sold, in June, 1834, were not entered in the treasurer’s office until 16th January, 1834, less than five months before the tax sale; that the taxes for the year 1831, on the unseated as well as on the seated land, were placed in the collector's duplicate; that there was in the treasurer’s office, a book labelled, “Unseated Land Book,” containing entries of unpaid taxes from the year 1822 to 1835; that from the entries in this book the treasurer received the payment of taxes on unseated land, and made the lists for the sale of unseated lands ; that the tax for which the land was sold was entered in the book under the following head:—</p> <p>Norwegian township County tax, on Unseated Lands for 1831 —Philip Drehr, Collector, entered Jan. 16,1834 : Franks, Samuel D.,.- 4.05</p> <p>Also evidence that this record was a copy of the original return of the collector, which was marked, entered January 16, 1834. ,</p> <p>In connexion with this paper, evidence was given that the paper was made up by the clerk of the commissioners; that the collector was in the practice of going to the commissioners’ office to make a list of taxes he could not collect; and then taking it to the treasurer’s office to procure credits; and that the treasurer advertised all land entered on these lists, whether seated or unseated.</p> <p>’The plaintiff then proposed to prove by John IClauser that he was the assessor for 1826, and that he called on Michael Hollert-bach, who lived on land adjoining, to inquire as to the owners of the land embraced within the warrant to S. D. Franks, of 23d December, 1824, and 3d of August, 1825, and was informed that Nicho and Judge Franks claimed it, and that he assessed it in their names.</p> <p>This was objected to, on the ground that the assessment sliould designate the land intended to be assessed; and that the conversation with Hollenbach was not evidence. The objection was overruled, and the second bill sealed.</p> <p>For the purpose of showing the location of the land, there was given in evidence an official connected draft of a number of warrants and surveys, including the warrant to Samuel D. Franks of 23d December, 1824, for 200 acres.</p> <p>Also the assessment for 1825, for Norwegian township, containing, inter alia, an assessment in name of Samuel D. Franks, of 200 acres — and of Nicho Allen 300 acres.</p> <p>For the purpose of showing the location, there was offered a manuscript book, entitled “ Return of Lands surveyed in Schuylkill County, by the different Deputy Surveyors, and furnished the Commissioners of said County, agreeably to the Act passed the 3d of April, 1804; by Frederick Lauderbrun, D. S.,” and in con-nexion with the book the following testimony:—</p> <p>Samuel B. Fisher testified. I don’t know the time Frederick Lauderbrun was deputy surveyor; that book came into my possession among John Drehr’s papers; I think Drehr was not deputy surveyor at the time of his death ; I was deputy surveyor at one time.</p> <p>The plaintiff then offered in evidence another manuscript book, entitled “ Return of Unimproved Lands to the Commissioners of Schuylkill County, taken from the Entries of Pusey W. Jackson, Deputy Surveyor of said County, from the first day of June, 1830, to this date, June 3, 1831.</p> <p>“ Signed, ' P. W. Jackson, D. S.”</p> <p>Also, in connexion with the foregoing, the following testimony:</p> <p>Samuel B. Fisher. Both of these books I found among John Drehr’s surveying papers; I bought the papers from the widow of John Drehr, one or two years after his death. Drehr was deputy surveyor after' Lauderbrun, but not immediately, P. W. Jackson succeeded Lauderbrun. 1</p> <p>Evidence was also given' proving that the heading or title of one of the books was in the handwriting of Lauderbrun, and the other in the handwriting of Púsey W. Jackson — the books were not signed at the end, and the entries in both of the books were made in the handwriting of several persons.</p> <p>F. B. Kaercher. I am clerk of the county commissioners. I have never seen any return of the deputy surveyors of unseated land for 1825. I made search this morning. I have never seen any return of that kind in the office. There is no minute-book as far back as 1825 ;■ none further back than 1848.</p> <p>The first book contained an entry, “ 1824, December 23. S. D. Franks, Esq., 200 Norwegian — Adjoining lands of the New York Coal Company, Michael Hollenbach and George Klauser.”</p> <p>Also, 1825, February 11, Nicho Allen, 300 Norwegian, adjoining land of Hollenbach and others.</p> <p>The second book contained the following entries (inter alia) under the following head:—</p> <p>“ Return of unimproved land to the commissioners of Schuylkill county, taken from the entries and drafts of Frederick Lau-derbrun, late deputy surveyor of Schuylkill county aforesaid. June 3, 1831.</p> <p>“ Signed, P. W. Jacksok, D. S.”</p> <p>Date of warrant.</p> <p>1825, August 3, S. D. Franks, Esq., Ill acres Norwegian, adjoining S. D. Erante’ otter land — land of John Adams, Philip Zimmerman and others.</p> <p>1824.</p> <p>Deo. 23, S. D. Franks, Esq.,-216, 115 — Norwegian, adjoining, &c. Also 1824, December 8, Nicho Allen, 107, 115, Norwegian, adjoining land of S. D. Franks, Michael Hollenbach, New York and Schuylkill Coal Company, and others.</p> <p>It was objected that the books were private books, and therefore not evidence in the case. The objection-was overruled, and the third bill sealed.</p> <p>Evidence was then given, on part of plaintiff, with the view of proving that the land on Mine Hill, on which the warrants of Samuel D. Franks were located, had been surveyed on older warrants ; and that the land in the years 1825-6, and 1831, had been assessed to the persons claiming under such older warrants, and that the taxes had been paid.</p> <p>The defendants gave in evidence a deed of assignment of 17th February, 1848, by Frederick Werntz, in trust for creditors.</p> <p>Points were submitted on each side.</p> <p>Heg-INS, President Judge, charged, that in the case of unseated land it is the land which is assessed, and that it was immaterial in what name it was assessed if there was sufficient evidence to satisfy the jury what land was assessed and sold, and that it was unseated; and that the only question for the jury to decide was, whether the land which was surveyed on the 13th of May and 6th of October, 1825, in pursuance of the warrants to Samuel D. Franks, and located on the Sharp Mountain, was the same that was assessed and purchased by the plaintiff. The 400 acres was assessed from 1826 till 1829, but in the latter year the quantity was reduced to 300 acres. The quantity was immaterial further than as tending to show what land was intended to be taxed. The identity of the land sold was referred to the jury.</p> <p>In reply to the tim'd point of the plaintiff, he charged, that the two surveys in name of Franks, adjoining each other, together containing a less quantity than he might have appropriated on a single warrant, the assessment and sale of both surveys as one tract, in the absence of evidence that they differed in value, was not such an irregularity as avoided the sale; but if they did differ in value, the defendants, claiming a legal title to the land, might take advantage of it and set it up >as a defence.</p> <p>In reply to the fourth point of plaintiff, he charged, that the assessments to the defendants of part of the tract were illegal and void, and that the payment of taxes under such assessments would not invalidate the title of the plaintiff under 1 the commissioners’ sale in 1843.</p> <p>To the 5th point, he charged, that the plaintiff was entitled to recover notwithstanding the deed of trust since the institution of the suit.</p> <p>In reply to the defendant's first point, he charged that the land taxed and sold ought to be described in the assessment so as to 'designate it with reasonable certainty; but if any uncertainty exist in the record as to what land was assessed and sold, other evidence, either written or parol, may be resorted to, and that such uncertainty on the record alone will not vitiate the title. To the second point, he charged, that it was not necessary that the land should be so designated in the assessment as to lead the owner to a knowledge of its being assessed. To the 3d, 4th, and 5th points he charged, that though the acts contemplated the ■ assessment of each tract separately, yet that the propriety of the assessment of several adjoining tracts as one tract, will depend on the circumstances of the case. To the sixth, he charged that though during the time the commissioners held the claim to the land the taxes assessed upon it in the name of the defendants were paid, yet that this was not to be considered as a disclaimer of the title acquired by them by the treasurer’s sale. And to the 7th point, he charged that though the tax of 1831, for which the land was sold was not entered of record in the treasurer’s office for one year before the sale, the sale was not on that account void.</p> <p>February 17, 1853, verdict for the plaintiff.</p> <p>Error was assigned: 1. To the rejection of the release. 2. To the admission of the evidence of John Klauser, as to the mode of obtaining information previous to assessment. 3. To the admission of the two manuscript books referred to in the third bill of exceptions. The assignments from the 4th to the 10th, inclusive, were to the charge in relation to the assessments; and the 11th and 12th were to the charge on the defendant’s 6th and 7th points respectively. The 13th was, that the tax for 1831 not being-entered in the treasurer’s office on the unseated land list or land book, until after the title was acquired by Miller and Rex and others, so that they could ascertain what taxes were due upon the land and retain the amount out of the purchase-money, the tax of 1831, though unpaid, w'as no lien on the land, and the sale for it conveyed no title.</p> <p>The release was primá facie evidence: 8 Harris 111; 2 Id. 412; Id. 469; Id. 22. 2. The evidence of Klauser should not have been admitted. The land should have been designated in the assessment: 6 W. <f- Ser. 477 ; Id. 522; 3 Id. 245; 5 Id. 449; 6 Id. 477; 16 Ser. $ R. 851-369 ; 4 Watts 443; Id. 363; 9 Id. 325; 13 Ser. £ R. 269.</p> <p>3. The books admitted were in the handwriting of different persons; not signed at the end; not produced from the commissioners’ office; no evidence given that they were ever there; not produced from the deputy-surveyor’s office, but by a private person. The Act of 1804 requires a return by the deputy surveyor, under oath or affirmation, and no oath or affirmation was attached to either of the books in question.</p> <p>4. The jury should have been satisfied what land was taxed; but the land should have been designated in the assessment: see authorities before cited.</p> <p>6. It was contended that two adjoining tracts were not assessable as one tract, though belonging to the same person: 9 Watts 326, Morton v. Harris; 2 Id. 412. In the case of Harper v. MeKeehan, 3 W. Ser. 238, one survey had been made, including both tracts. 7. If the owners of land have their interests separately assessed it is regular. 8. Land should be assessed in such manner “ as will or may lead the owners to a knowledge of their being assessed: Kennedy, J., in Dunn v. Ralyea, 6 W. $• Ser. 477. 11. The land being assessed to the defendants whilst the commissioners held it, and the taxes being paid, the commissioners must be considered as relinquishing all claim to it, and had no right to sell it: opinion of KENNEDY, J., in Hunter v. Albright, 5 W. f Ser. 426; 7 Watts 400; 7 Harris 271. 12. As the tax of 1831, under which the land was sold, was not entered of record in the treasurer’s office for one year before the sale, the sale was void. There was in the treasurer’s office a book called “ Unseated Land Book,” containing entries of unpaid taxes from 1822 till 1835. In this book was entered “Norwegian township county tax, on unseated lands, for 1831,” entered January 16, 1834, Franks, Samuel D., $>4.05. In March, 1833, Miller and Rex and others acquired their claim to the land in dispute, which was before the land was entered in the treasurer’s office. The tax for 1831 was placed in the collector’s duplicate, and he was thus charged with it; it was not a lien on the land till placed on the unseated land list, and no sale could be made of it till the expiration of one year from the entry on such list.</p> <p>The release was merely a disclaimer of any interest in the plaintiff in the Otto tract. Klauser’s testimony was to identify the land which he had assessed : 2 Pa. Rep. 500, Keyscr v. Huldey.</p> <p>As to the books, it is admitted, that if they had been in the commissioners’ office, or had been brought from the office of the deputy surveyor, they would have been admissible. The proof was, that Drehr was deputy surveyor when he died, and the books were got from his widow. They were made under directions of an Act of Assembly, and were admissible: 2 W. & Ser. 65-69 ; 7 Id. 386; Id. 259; 6 Barr 221.</p> <p>4th assignment. The part of the charge objected to is supported by the case of Strauch v. Shoemaker, 1 Pa. 166, and other cases. 5. The identity of the land was properly referred to the jury. As to the 6th, 9th, and 10th assignments: Two pieces of unseated land adjoining, owned by the same person, of the same quality, though acquired by different purchases, may be assessed and sole! together: 8 W. ‡ Ser. 238, Harper v. McKeehan; 7 Id. 154. The assessment in Morton v. Harris, 9 Watts 326, was of four separate tracts, assessed at different valuations. But the assessment made by the proper officer of both tracts as one, would be but an irregularity, which would not vitiate the sale: 13 Ser. B. 363; 2 Pa. 496; 7 W. # Ser. 260; 5 Id. 465; 4 Id. 269; 1 Id. 328, 333. A stranger has no right to question such irregularity : 9 Watts 325; Id. 344; 1 W. Sf Ser. 506; 5 Watts 548; 1 Bawle 223. In this case the assessment as one tract was acquiesced in by Judge Franks by the payment of taxes for five years before the sale, viz., from 1825 till 1830. He died in 1881.</p> <p>In 1834, and till the passage of the Act of 9th March, 1847, and 25th April, 1840, parts of or separate interests in a tract, were not assessable: 13 Ser. ‡ B. 151-4; 7 W. § Ser. 391.</p> <p>But if the assessment of undivided interests were valid, by a mere assessment of an undivided interest, in a different name, for a different quantity, under a different title, and made at the instance of the claimants, the title of the county, and all taxes in arrear and the costs incurred, would not be relinquished and forfeited. The cases in 5 W. Ser. 423, and 7 Harris 271, do not apply to this case, as in those cases the controversy was between the county commissioners and innocent purchasers from them, who, through the irregular acts of the agents of the county, were induced to expend their money: 6 Watts 281, cited.</p> <p>As to the 8th assignment. If the owner of unseated land withholds his title from record, and fails to perform the duty required by law, he has no right to require precise certainty in the assessment. The case of Dunn v. Ralyea, 6 W. §• Ser. 477, was an assessment of a donation tract, which are usually assessed by their number.</p> <p>12 and 13. The lien of tax is created by the assessment, and the tax is due when the assessment is completed by the assessors and commissioners. The stay is from the time the tax is due, not from the time it is entered by the treasurer. But the return was made into the treasurer’s office two years before the sale, viz., on 21st May, 1832, the sale being in June, 1834.</p>

<p>1. A person -who knows that there' is a mine on the land of another, of] ■which the latter is ignorant, may nevertheless buy it. The ignorance of the/ vendor does not of itself render the transaction fraudulent on the part of the purchaser. ■</p> <p>2. The mere fact, therefore, that the vendee of a right to dig up all minerals and mineral substances of value, and remove the same from the land of the vendor, was aware, at the time of the purchase, of tho existence of a valuable deposit of sand chrome on the land, of the value of which the vendor was ignorant, though he knew of the deposit, is no ground for impugning the validity of the conveyance.</p> <p>3. If the vendee, during the negotiation for the purchase, had wilfully made any misstatement of a material fact, and thus misled the vendor, and induced him to sell at a lower price than he otherwise would, the contract would have been a cheat, and the conveyance void.</p> <p>4. Mere inadequacy of-price is not sufficient to set aside a deed. It is sometimes regarded as a suspicious circumstance when coupled with other strong evidence of fraud.</p> <p>.5. Duress to invalidate a deed must be of the person. A threat to sue the grantor for a good cause of action will not invalidate it.</p> <p>6. An offer on the part of the plaintiff, in an action of ejectment, in the nature of a bill in equity for the rescission of a conveyance, to prove that the defendant, having knowledge of the nature and value of sand chrome, of which a large body existed on the plaintiff’s land, concealed that knowledge, and actively put in circulation a report that sand chrome was of no value, and thus impressed the public mind in the neighborhood of the plaintiff with that idea, for the purpose of enabling him to make extensive purchases of lands containing sand chrome; and that in consequence of an erroneous impression thus created, the defendant was enabled to buy most of the chrome lands in the neighborhood, including the plaintiff’s tract, was properly rejected; no offer being made to show that the declarations of the defendant proposed to be proved were made to the plaintiff, or in his presence, or were communicated to him.</p> <p>7. Evidence that the plaintiff was a poor man was properly excluded.</p> <p>8. The defendants had a right to file of record, during the trial, a disclaimer of all right to the land doscx'ibod in the writ, except as to the privilege of taking out chrome.</p> <p>9. The rejection of offers to prove conversations of defendant, without stating what the conversations were or that they were relevant, is not error.</p> <p>10. A declaration by defendant that it was his intention “ to monopolize the chrome business,” is not evidence in an action brought to set aside a conveyance of a chrome right in the land of the plaintiff.</p> <p>11. A witness having testified that he had received a letter from defendant, the contents of which he communicated verbally to the plaintiff, it was not error to permit the letter to be read to the jury — it being evidence of the defendant’s fair dealing in relation to tho contract sought to be set aside, and relevant to the point in controversy.</p>

<p>Appeal from the decree of the Court of Common. Pleas of Delaware county, directing distribution of part of the proceeds of sheriff’s sale of the real estate of Thomas J. Peirce.</p> <p>By article of agreement, dated 2d February, 1850, William, Hendrickson agreed to sell a small tract of land, for which Peirce agreed to pay $1800, viz.: $600 on the delivery of the deed; the remainder to be secured on the property.</p> <p>Peirce applied to Joseph G. Hendrickson, who agreed to lend him $500, provided he could have the amount loaned, and $100 more, which Peirce previously owed him, secured upon the property purchased, prior to any lien in favor of William Hendrickson for part of the purchase-money. To this arrangement William Hendrick-son soon after agreed.</p> <p>Afterwards a mortgage by Peirce to J. G. Hendrickson was prepared, and in it it was stated that the $600 to be secured was “ part of the consideration-money” of the estate mortgaged. The deed and mortgage were delivered at the same time, viz., on 25th March, 1850. At the same time Peirce executed a judgment bond or note in favor of William Hendrickson for $300.</p> <p>On the same day the three parties went together to the office of the prothonotary and recorder, who were the same person.</p> <p>The mortgage was first entered, and a few minutes afterwards the judgment was entered. The agreement as to priority of lien was merely verbal, and not noted on the record. Some months afterwards, viz., on 12th November, 1850, William Hendrickson assigned the judgment to Edith Martin.</p> <p>The property was afterwards sold by the sheriff, and $493.91 was paid into Court for distribution.</p> <p>On application of Peirce, the judgment for $300 was afterwards opened, and on account of a deficiency in the quantity of land, it was reduced to $150.</p> <p>The claimants to the fund for distribution were Joseph G. Hen-drickson and Edith Martin, the former claiming the whole fund by virtue of the mortgage, and the agreement with William G„ Hendrickson, that it should have priority over the judgment. On the part of Edith Martin it was alleged that she had no actual notice of such agreement previous to the assignment of the judgment to her.</p> <p>The Court below directed the judgment of Edith Martin to be first paid, and the balance to be paid on the mortgage; and from such decree Hendrickson, the mortgagee, appealed. Exception was taken to the decree.</p> <p>William Hendrickson would be precluded by his agreement from receiving the money, and estopped from disputing the statement that the mortgage was for purchase-money, and had thus, under the Act of Assembly, priority of lien: 1 Parris 380; 10 Barr' 530. [See Cake’s Appeal, 11 Parrish] Edith Martin was in no better situation: 1 Gtreenl. Pv. 189-90. The statement in the mortgage was notice to her. As a general rule the assignee of a chose in action occupies the place of the assignor, and is bound to make inquiry into any circumstances which may operate against the payment of the claim assigned : 1 Pa. Rep. 257-261, Frantz v. Brown; 4 Whar. 500. Her judgment as against Peirce is-not affected.</p> <p>It was further contended that if the mortgage was not entitled to preference, it wras entitled to a pro rata share of the fund.</p> <p>The judgment being entered on the day the deed was delivered, therefore purported to be for part of the purchase-money of the land. The mortgage to J. 6r. Hen-drickson could not be for purchase-money of the land sold by William Hendrickson, and Edith Martin had thus no notice from the record of the agreement in question. The agreement, though binding on the parties to it, was not binding on her. She took the bond subject to any defence against its payment, and she lost half of it; hut she was not bound to inquire into a collateral agreement not affecting the quantum of the debt. She was only bound to inquire as to matter of defalcation, or want of consideration : 9 Ser. ¿f- R. 137, Davis v. Barr, and 1 Pa. Rep. 260, Frantz v. Brown; 1 Pallas 29.</p>

<p>1. When it appears that the judge who presided at the trial of the case was satisfied that a paper was not produced only because it could not he found after faithful search, this Court will, as a general rule, accept it as an established fact. But if the proof be manifestly insufficient, the case should be reversed.</p> <p>2. When the possession of a paper has been traced from hand to hand, and proof is made of careful search by the last person known to have had it, this is sufficient for the admission of parol evidence of its contents.</p> <p>3. Suit was brought in 1847, but no declaration was filed till 1854. The statute of limitations could not be applied by counting any portion of the time which elapsed after the issuing of the original writ.</p> <p>4. A long delay after instituting a suit may be evidence of abandonment, and the Court might not compel the defendant to plead. But this advantage is waived by pleading issuably and going to trial.</p> <p>5. A moral obligation is a sufficient consideration for a direct promise.</p> <p>6. A married woman possessing a separate estate, induced the plaintiff to do work for her son, by promising payment; and after its completion and during coverture acknowledged the obligation, and after divorce á vinculo matri-monii renewed the promise:</p> <p>Held that the moral obligation previously existing was a consideration for her express promise after discoverture, and that she was liable.</p>

Appeal by Moroney, a meclianic’s lien creditor, from the decree of tbe District Court of Philadelphia, in the matter of the distribution of the proceeds of the sheriff’s sale of the real estate of Joseph Montgomery. The case turned entirely on the validity of several contemporaneous mortgages on contiguous lots, and which the Court treated as one, given by Montgomery to Cadwalader.

<p>This was a bill in equity of Edward S. Sandford against The Catawissa, Williamsport & Erie Railroad Company, and E. W. Paul and others, carrying on business under the name of the International Express Company, submitted to the Supreme Court in equity, at Philadelphia.</p> <p>In the bill it was alleged that the said railroad company have attached to their passenger trains, for the purpose of carrying express matter, a suitable and convenient car, and that the same had been used by a firm engaged in such business, known by the name of Howard $ Company, from July, 1854, till about the 30th October, 1854; but that the said railroad company had entered into a contract with other persons who carried on business under the name and style of the International Express Company, for exclusive carriage upon the road of express matter. This arrangement was complained of, and an injunction was asked for.</p> <p>It was alleged that the complainant was a stockholder of the said railroad company.</p> <p>In the answer it was alleged that the railroad company had been advised that they were not required by law to transport in their passenger trains articles of bulk or weight greater than that of baggage; or articles of less weight and bulk not properly of the denomination of baggage. Also that no person could, without the company’s license, intervene as a common carrier or otherwise, between them and the owners of property carried in their freight or passenger trains, to superintend, control, and meddle with its reception, transport, or delivery; and that every license from the said company to any person to act as a common carrier,- or otherwise in that behalf, is from its nature exclusive. Further, that the business of common carriers acting as express agents had not been practised at the date of the incorporation of the said railroad company in 1831.</p> <p>It was also averred that the complainant was a partner in the firm of Adams & Co., an express company of extended business, and that application was made for that company, and for Howard & Co., which was the company named in the bill, for the express agency for the railroad company, and that a contract was made with the latter company. It was further averred that, after the proposition for the latter company was accepted, the complainant became possessed of stock in the railroad company, and that his complaint was not made with any view to promote bis interest as a stockholder in the railroad company, but for other considerations.</p> <p>In the proposal on the part of the International Express Company was a provision as follows :—</p> <p>“ 4. This contract to be for three years; and the said express company to have the exclusive right of said railroad for all express purposes, at the various stations on said road, in so far as the said railroad company control the matter, and shall continue so to control the same: provided, nevertheless, that nothing in this contract shall be construed to restrain the said railroad company from carrying any freight, baggage, or passengers, at their advertised rates, for any individual or individuals, company or companies, whatever.”</p> <p>The prices were to continue for one year, from the ist November, 1854, when they might be revised.</p> <p>The proposal was accepted by the superintendent of the. railroad company, on October 28,' 1854, and was approved on the 28th November.</p> <p>The charter of the railroad company was obtained under the Act of 21st March, 1831, by the 20th section of which (see Acts, page 169) it was provided that the company, to be incorporated, shall “ be required to transport to the termination of the said railroad, or to any other point on the said railroad, in the order in which they, their officers, and agents, shall be requested to transport the same, all goods, wares, minerals and merchandise, or other articles which shall have been deposited at the company’s depots, or convenient to the said road, so that equal and impartial justice shall be done to all owners of property, by the said company, who shall pay or tender to the officers of the company the toll and freight due, under the Act, on the goods, wares, minerals, and merchandise, or other articles which they may wish transported.”</p>

<p>ERROR to tbe Common Pleas of Adams county.</p> <p>This was an action of assumpsit brought 6th September, 1852, in favor of Kenneth McLennan v. Samuel S. McNair, to recover the price of 20 head of cattle, the claim being for $886.09. The plea was payment.</p> <p>The cattle were sold by Daniel McLennan to the defendant, in Adams county, on 24th October, 1851. The plaintiff resided in Jefferson county, Ohio, and claimed to be the owner of the cattle, and that Daniel McLennan was his agent for the sale of the stock, having no interest in the same. In a settlement between Daniel McLennan and the defendant, for the cattle and for a number of sheep sold at the same time, an account, owing by Daniel McLennan to the defendant, was deducted from the amount of the purchase, and a note given for $160, which v'as payable to Daniel McLennan, three months after date, at the Bank of Gettysburg. The note was not negotiable. At the same time a receipt was signed by Daniel McLennan, agent, by wbicb be acknowledged to bave received “ of Samuel S. McNair, as agent for Kenneth McLennan,” tbe sum of $381.91, in full for 20 bead of cattle, &c., and 19 head of sheep.</p> <p>The note for $160 was not paid, and being offered to plaintiff’s counsel on the trial was refused.</p> <p>On 8th November, 1851, suit was brought in the name of Daniel McLennan, against the defendant; and on 10th November of same year, a suit was brought, at the instance of Daniel, in the name of Kenneth McLennan, against the defendant. That suit was discontinued on 6th September, 1852, and this suit instituted on the same day.</p> <p>On the trial points were submitted on part of the defendant, viz. That if there was no disaffirmance by the plaintiff of the credit, for more than three months after he had been informed of the transaction, then he was not entitled to recover more than the difference between the claim credited and the price of the cattle. The 2d was to the effect that the suits brought by Daniel McLen-nan against the defendant, were not a disaffirmance by the plaintiff of the contract. 3. That the disaffirmance by the agent, without the direction of his principal, was not, in law, a disaffirmance by the principal, where his own acquiescence has been of unreasonable duration.</p> <p>EiSHER, President Judge, in his charge, observed that it was; admitted that the cattle belonged to the plaintiff, and were sold by his agent to the defendant, who purchased them with a knowledge that they belonged to the plaintiff, and that he was dealing with an agent; and he charged that the crediting of the claim against the agent was a fraud on the principal, and was not binding on him unless ratified by him, of which no evidence had been given; and that there being no material fact in dispute, verdict should be rendered for the plaintiff.</p> <p>Verdict was rendered for plaintiff for $399.91.</p> <p>Error was assigned to the statement in the charge as to the admission and the knowledge of the defendant; also to charging affirmatively on the points submitted; and in instructing the jury that the plaintiff was entitled to recover.</p>

<p>1. Under the Act of 1794, a premeditated intention to destroy life is indispensable in order to constitute murder in the first degree.</p> <p>2. Murder by drowning is not, under the Act of 1794, necessarily murder in the first degree; it is not- one of the modes of destroying life enumerated in the statute,</p> <p>3. The Act of 1794, providing that “ all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated hilling, or which 'shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degreethe jury, in case of conviction, to ascertain the degree. Under an indictment charging that the defendant feloniously, wilfully and of his malice aforethought, cast a certain E. T. into a dam of water and held her in and under the water till drowned, he was found “guilty in manner and form as he stands indicted."</p> <p>It was Held that the defendant was not convicted of murder of the first degree, hut of murder of the second degree.</p> <p>4. Where a defendant has heen found guilty in manner and form as he stands indicted, this Court, on error, will not look into the evidence for the purpose of ascertaining the character of the offence; the indictment is alone to he considered.</p> <p>5. The sentence of death was reversed and annulled, and the record remitted to pass such sentence as is authorized for conviction of murder in the second degree.</p>

This was an action of assumpsit by the Exchange Bank of Pittsburgh v. Elias Baker, as endorser of a note of which Peter Hewitt was drawer, dated September 15, 1843, for $2200, payable to the order of the endorsers ninety days after date. On 16th December, 1853, before the note fell due, at the instance of the drawer and endorsers, judgment by confession was entered against the drawer for $2200, the amount of the note, with interest from 17th December, 1853.

ERROR, to the Common Pleas of Blair county. This was an action of covenant by George Mulhollan and William Lyon v. John Miller, founded on an agreement under seal or lease by the plaintiffs to Miller, dated 30th March, 1848. By the instrument referred to, the plaintiffs leased to Miller the privilege and right to mine and dig coal on their land south of a line of land in dispute between them and Shoenberger.

This was an action of covenant to March Term, 1849, by James Boss v. Dysart & Earhart. It was referred to arbitrators, whose award for the plaintiff for $661.57 was filed on 29th June, 1849. It was stated on tbe record as follows: “And now, 18tb July, 1849, Joseph Dysart appears, makes oath, pays costs, and appeals from the award of arbitrators in this case.

On 10th November, 1853, a petition from The York Water Company was presented to the sessions, praying for the appointment of viewers to lay out a private road through land of Samuel Weiser. Viewers were afterwards appointed, who, to April sessions 1854, reported in favor of a road, and recommended that it be opened 16J feet wide.

<p>1. A judgment, entered on the day on which the defendant’s land is sold at sheriff’s sale, is a lien on the land at the time of the sale, although entered at a later hour of the day than the sale, and is entitled to share in the proceeds after payment of prior liens.</p> <p>2. Judgments against the defendant, entered several days after the sale, are not entitled to payment out of the proceeds in preference to creditors to whom the defendant, after the entry of the said judgments, assigned the residue of the fund.</p>

<p>1..Whenever tiie flefect in the declaration is such as would he'amended in the Court before which the case is tried, it will lie cured by the verdict, ,</p> <p>2. In an action for broach of promise of marriage, a promise by the man may be inferred from such attentions on his part'as usually characterize matrimonial engagements; but the opinions or inferences of witnesses from tho conduct of the parties is not admissible as evidence of mutual promises.</p> <p>'3. The promise of the plaintiff may also be implied from her encouraging and receiving the attentions of the defendant; and her declarations in expectation of marriage are also, evidence for this purpose, as part of-the res gestee.</p> <p>4. In such a,suit, judgments confessed by the defendant in favor of relatives were not admissible as evidence of a promise of marriage on his part.</p> <p>5. In the action for breach of promise of marriage, which is founded on contract, the character of the parties is, not directly involved; and therefore in answer to' evidence of specific acts of impropriety on the part of the plaintiff, ,such as permitting another to take undue liberties with her person,,evidence of her general good character and conduct was not .admissible.’</p> <p>6. Where evidence was given of marked attentions by the defendant to the plaintiff, so long continued as to'indicate courtship, they were properly referred to the jury, in connexion with his declarations, as evidence on the question of mutual promises by the parties.</p>

This was an action on the case by Joseph Merkel v. Jacob Zitzer, for seduction of the plaintiff’s daughter, a minor of about 17 years of age when the alleged seduction took place. In the second count of the declaration it was averred that a promise of marriage had been previously made. Lucinda, the daughter, was examined to prove the seduction.

John Sterrett and James Potter were engaged for a number of years as partners in mercantile business, prior to 1849, and failed. In order to a settlement of their accounts, on the 17th September, 1849, they entered into an agreement, under seal, to submit their accounts to three persons named, who were to examine the same, and report the amount due from the one to the other ; upon which report judgment was to be entered by the prothonotary'of Mifflin county.

deceased, exhibited by the administrators of bis estate. Tbe account referred to tbe sum of 200?. given by the will of tbe testator to his executors in trust for bis daughter Margaret; the material question being tbe liability of the estate of Michael Hengst to account for tbe same. The account was exhibited in November, 1854. John Herbach died possessed of considerable estate, leaving six children.

This was an appeal by Israel Spangler from tbe decree of tbe Orphans’ Court, on tbe account of Jesse Spangler, guardian of tbe appellant.

<p>Appeal by Jacob Laucks from the decree of the Court of Common Pleas of Berhs county, directing distribution of proceeds of sale of his real estate sold under a writ of venditioni exponas.</p> <p>On 6th January, 1852, Laucks purchased from Christopher Shearer a lot of ground in Reading, for $175, and received a deed therefor of that date. On the same day, Shearer loaned to Laucks $100, and for the two sums, amounting to $275, Laucks gave to Shearer a judgment-bond, on wh'ich was endorsed a waiver of all right under the Exemption Act.</p> <p>On 3d January, 1852, Laucks purchased from Shearer another lot adjoining, for $160, and receiving a deed he gave another judgment-bond to Shearer for the amount of the purchase-money, with a waiver endorsed.</p> <p>In March, 1852, Laucks commenced building a house on the lot first purchased, and it was completed before the sheriff’s sale.</p> <p>On 5th April,' 1852, and - on 27th May, 1852, and on 19th April, 1853, J. Dickinson obtained three judgments against Shearer, as to which all claim to exemption was waived.</p> <p>On 16th and 18th April, 1853, mechanics’ liens were entered, exceeding $400. Two other judgments were subsequently entered, amounting to about $20. ■ '</p> <p>In April, 1854, a fieri faeias was' issued on one of Dickenson’s ' judgments, and'the lots and house were levied on. Laucks claiming $300 under the Exemption Act of 1849, the property was apraised, and the inquisition was returned. In April, 1854, the property was sold, the house and lot being sold for $800, and the other lot for $160, the balance for distribution exceeding $900. An auditor was appointed, who reported against the claim of Laucks for $300, on the ground that he had waived the exemption in favor of Shearer and Dickenson, and the Court confirmed the report. Laucks appealed, excepting to the decree, the question being whether a waiver of claim to exemption is binding if the debtor afterwards makes claim in due time, and appraisement is made and returned.</p> <p>If a debtor do not claim in proper time,. his claim is gone: 7 Harris' 257, Hammer v. Freese; 9 Harris 211, Bowyer’s Appeal. He cannot yield his right in favor of a junior creditor, nor assign it to a third person. His assignment of it amounts to an abandonment of it: Id. 214. He may therefore waive it in favor of his creditors. A person for a fair consi- ' deration may waive any private right existing in him: 4 Yeates 555; 2 Bin. 169; 4 Mass. 516; 7 Ser. ¿- R. 369. The waiver of exemption is not against statute law, the public is not interested in the matter, and the waiver is not against public policy: Story’s Hq. 298.</p> <p>The sheriff’s return cannot alter or impair the right of the appellee.</p> <p>By the erection of the building the fund was considerably increased.</p>

<p>Appeal from the decree of the Court of Common Pleas of Lancaster county.</p> <p>This was a bill in equity by the administrator of the estate of Samuel Ankrim, deceased, against Charles T. Todd and Susanna his wife, and William A. Todd, and others, their children, eight in number, under circumstances as follows:—</p> <p>John W. Kennedy was the owner of above 87 acres of land, which was bound by a judgment for $300, entered on 14th June, 1843, in favor of Samuel Ankrim. Kennedy, on 29th April, 1844, conveyed the land to Susanna Todd and her children, and their heirs. There was paid in hand above $1200, and the judgment of Antrim was to be arranged by Mrs. Todd; and, on the 29th April, 1844, she executed in his favor a judgment-bond for $300, which was entered of record on 2d May, 1844; and was payable on 1st April, 1845. On the same day the judgment of Antrim v. Kennedy was released. Susanna Todd and her husband received possession of the land and retained it. One year’s interest was paid on Antrim’s bond.</p> <p>It was alleged that the conveyance of Kennedy to Mrs. Todd and her children was subject to a lien of $233.33, payable to Eleanor Ash during life.</p> <p>In the answer it was alleged that Susanna Todd, at the time of the purchase, was a married woman, and was still so; and that the purchase was made for the joint benefit of herself and her children, the money paid in hand having been furnished for the purpose by her mother-in-law, the grandmother of her children. Further, that in addition to the lien for $233.33, to which the property by virtue of the conveyance 'was to be subject, there was a further lien upon it of $250, the interest of which the defendants had been compelled to pay.</p> <p>It-was alleged that the land was not bound, either in law or equity, for the payment of the judgment of Antrim.</p> <p>No replication was filed. The plea of the statute of limitations was offered and was overruled, and the case was heard upon bill and answer.</p> <p>The Court below decreed that the judgment of Antrim for $300, and interest thereon, be made out of the land. Such decree was the subject of exception.</p> <p>The conveyance being to Susanna Todd and her children, and their heirs, she and her children toot the fee jointly, as tenants in common: Oo. Lit. 9a; 5 Barr 367. Her children made no contract, and their interest in the land should not be bound for the judgment.</p> <p>This case is not the subject of Chancery jurisdiction as limited in Pennsylvania, and there was no special contract which protects it against the bar of the statute of limitations, by which Courts of equity are governed, as well as Courts of law: ¡Story’s Bq. 529; Id. 1520.</p> <p>The plaintiff may proceed against Kennedy, the release of the lien of his judgment having been stricken off by order of Court; but the judgment is not now a lien on the land conveyed. Equity will not relieve against a general rule of law: 1 Story’s Bq. 11 — 15; Com. Digest, “ Chancery” 3; B. 823. The bond was void both in. law and equity: 3 Wharton 309. If an action on simple contract could have been sustained against her, it was barred, more than eight years having elapsed after the contract was made, or the claim was due: 2 Vesey 138; Id. 154-5.</p> <p>It was admitted by the pleadings that the land was sold witb a warranty against encumbrances beyond $233; whereas there was a further encumbrance of $250.</p> <p>The proceeding in this case is in rem, and is within the jurisdiction of chancery. Married women and their interests in land can be reached in no other way: 66 Law Lib. 91-3; 67 Id. 325; 1 Myl. $ Or. 111. _ A married woman may charge her separate property, with or without her husband: 2 Ves. Ir. 144; the case of Patterson v. Robinson cited, See Law Register 240, of February, 1855. The statute of limitations cannot affect a charge by a married woman of her separate estate; no implied promise in such a case can arise. The statute began to run only when the bond was avoided: 2 P. Wms. 144; 23 Eng. Qom. Law 452.</p> <p>.Kennedy is insolvent.</p>

This was an attachment execution issued in favor of Chaffees & Stout v. Samuel & David J. Risk, partners, and P. W. Housekeeper, and eight other persons as garnishees. S. & D. Risk were engaged in mercantile business, and failed in 1852.

<p>ERROR to tbe Common Pleas of Dauphin county.</p> <p>This-was an action of assumpsit by George A. Bock and A. D. Inglis, using the firm of Bock & Inglis, endorsers of a bill of exchange, v. George M. Lauman, J. 0. Rockafellow, and James Moore, doing business under the firm of Lauman, Rockafellow & Moore, endorsers. The writ was served on Lauman & Rocka-fellow only.</p> <p>The bill of exchange was in form as follows:</p> <p>$4500.00</p> <p>Buffalo, August 20, 1853.</p> <p>Four months after date, pay to the order of A. D. Patchin, President R. and N. T. C. R. R., $4500, at tbe Rank of Commerce, in New York, value received, and charge to the account of</p> <p>W. C. Tallmadge, Agent.</p> <p>To R. Pomeroy, Treasurer Ruffalo and New York City Railroad Company, Ruffalo.</p> <p>Accepted for and on account of the Ruffalo and New York City Railroad Company. R. Pomesoy, Treasurer.</p> <p>Endorsed, A. D. Patchin, President R. and N. Y. C. R. R.</p> <p>Lauman, Rockafellow & Moore.</p> <p>The narr. contained a special count charging the defendants as endorsers; and also money counts. The plea was non assumpsit.</p> <p>On part of the plaintiffs it was alleged that the defendants were liable under the special count for the whole amount of the bill; or "on the money counts for what had been paid for it.</p> <p>On part of the defendants it was alleged that the transaction was usurious, and that therefore there could be no recovery against them.</p> <p>It was testified by G. S. Robbins, a banker or note-broker in the city of New York, that the firm, of which he was a member, sold a draft of the same general description as the one on suit, on the 2d September, 1853, to the plaintiffs in this suit. That he did not know for whose accommodation it was drawn. That it was sold on account of A. D. Patchin, President of the Ruffalo and New York City Raüroad Company — Patchin, as president, having employed them to sell it for him — and that the proceeds were paid to Patchin for his use as president of the company. The endorsement of the defendants was upon it at the time of sale, which took place in the city of New York, at a discount of 15 per centum per annum.</p> <p>He further testified that he did not know whether or not the draft was issued to pay debts of the company — that at the time of the sale nothing was said contrary to what the draft imported, and that it was sold as a valid subsisting security for the payment of money, and before maturity.</p> <p>The deposition of W. C. Tallmadge, the agent, taken under a commission, was also read under objection on part of the plaintiffs on the ground of incompetency. He stated that he drew the draft as agent of the Ruffalo and New York City Railroad Company, by direction of the president, and for the accommodation of the company, as he supposed; that he had no knowledge as to what value, if any, was received by the defendants, nor did he know for whose use or accommodation the defendants or either of them endorsed the same. He also said he drew a number of drafts, of a similar character with the one in suit, all of which were delivered to Patchin, the president of the company, and that he did not know that any of them were issued to pay debts of the company to the defendants or to any other person, nor whether they were used for that purpose.</p> <p>It was testified by Philip Irwin that the defendants were contractors for making the whole of the Buffalo and New York City Railroad, 90 miles in length. Their work was commenced in February, 1851, and was closed in the fall of 1852. The defendants took stock in the company for part of their claim for work.</p> <p>It was conceded by the defendants, so far as respected this case, that the partnership between the defendants existed down to the time of endorsing the bill in suit; no question to be raised, on the part of the defendants, as to the power to endorse the paper on the ground of its being merely accommodation paper.</p> <p>The draft, not being paid, was protested.</p> <p>One of the interrogatories (the 7th) submitted on part of the defendants under a commission entered, was in regard to the law of New York in respect to the effect of taking or reserving a greater sum of discount than at the rate of 7 per cent, per annum on purchasing a draft from the acceptor of it, when the same is endorsed for his accommodation; and how far, if at all, such a draft would be valid as against the endorsers.</p> <p>To this interrogatory two counsellors in New York testified that the endorsers of such a draft would not be liable. As authority for such opinion'reference was made to sections 1, 2 and 5, of title 3, chapter 4, of part second of the Revised Statutes of the State of New York; 1 Barlow’s Chancery Reports, pages 43 and 251; 4 Comstock’s Reports, pages 226, 363, and 463; also to the case of Aeby v. Rapelge and others, 1 Hill’s Reports 9; Jones v. Hake, 2 Johnson’s Cases, page 60 ; Wilkie v. Roosevelt, 3 Johnson’s Cases 66; 2 Id. 60; Munn v. The Commission Company, 15 Johnson’s Reports, page 44 ; Bennett v. Smith, 15 Johnson’s Reports, page 355; Id. 430; also chapter 43, section 1, of the Laws of 1837.</p> <p>In the year 1828 a provision of an Act of the Legislature of New York was enacted, as follows: — “ All bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured, or agreed to be reserved or taken, any greater sum or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed shall be void: lut this section shall not extend to any hills of exchange or promissory notes, payable to order or bearer, in the hands of an endorsee or holder, ivlio shall have received the same in good faith, and for valuable consideration ; and who had not at the time of discounting such bill or notes or paying such consideration for the same, actual notice, that such bill or note had been originally given for a usurious consideration, or upon a usurious contractVide section 5th of Act of 2 vol. 2d Ed. of Bev. Stat. 761.</p> <p>But by the Act of 15th May, 1837 (p. 486), the said provision was changed by an enactment as follows: — “ All bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, (except bottomry and respondentia bonds and contracts), and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved, or taken, any greater sum or greater value for the loan or forbearance of any money, goods or other things in action, than is above prescribed, shall be void; but this act shall not affect such paper as has been made or transferred previous to the time it shall take effect.”</p> <p>In the sixth section of the said Act of 1837, it was enacted as follows: — ■</p> <p>“ Sect. 6. Any person who shall directly or indirectly receive any greater interest, discount, or consideration, than is prescribed in the said title, and in violation of the provisions of said title or this Act, shall be deemed guilty of a misdemeanor, and on conviction thereof, the person so offending shall be punished by a fine not exceeding $1000, or imprisonment not exceeding six months, or both.”</p> <p>In 1850, the following enactment was made in relation to corporations, it being entitled “ An Act to prohibit corporations from interposing the defence of usury in any action:—</p> <p>“ Seat. 1. No corporation shall hereafter interpose the defence of usury in any action.</p> <p>“ Sect. 2. The term corporation, as used in this Act, shall be construed to include all associations, and joint-stock companies having any of the powers and privileges of corporations, not possessed by individuals or partnerships.</p> <p>“ Sect. 3 This Act shall take effect immediately.”</p> <p>A special verdict was rendered, finding that the draft was drawn by Tallmadge as agent of the company, a corporation created by the laws of New York, on the treasurer, in favor of the president, accepted by the treasurer, and endorsed by the president in his official capacity, and by one of the defendants with authority to make the endorsement. That the draft was drawn, endorsed, put into the market, and discounted by the plaintiffs as stated in the depositions of Robbins and Tallmadge — which, together with the interrogatories, were made part of the verdict; nothing being stated in regard to what was the law of New York on the subject, but submitting that if the plaintiffs were entitled to recover, judgment to be rendered in their favor for the amount of the draft, with interest at the rate of. seven per cent. — or for such less sum as in the opinion of the Court they were entitled to recover.</p> <p>In an elaborate opinion by PeaRSON, President Judge, it was observed as follows: “ The construction given to this statute (the Act of 1837) by the Courts of New York, is conclusive and binding on all other Courts, state or federal, when passing on a contract made and to be executed within that state. The lex loci contractus furnishes the rule for its exposition, and however hard, and even unjust, we may consider the rule of construction, we are . not at liberty to depart from it, but are bound to enforce it. The principle is well established in nearly all of the Courts in this country and England, that where a bill or note is of binding efficacy as a contract, and could be recovered in an action by the holder against the maker or endorser when due, it may be sold in the market at any rate of discount whatever, without the purchaser incurring the penalties prescribed against usury. On the other hand it is equally clear that under the decisions of New York, where a bill or note is made for the purpose of raising money on it, and is discounted at a higher premium than the legal rate of interest, and where none of the parties whose names are on it, can as between between themselves, maintain a suit on the bill or note when it becomes due, provided it had not been discounted, the discounting thereof at a higher rate of premium than seven per cent, will be usurious, and render the same void: see Jones v. Hake, 2 Johns. Gases 60; Wilkie v. Rosevelt, 3 Johns. Gases 66, 206 ; Grisvold v. Woddington, 15 Johns. Rep. 57, 355; Powell v. Waters, 17 Johns. 176; Marion v. McCullum, 20 Johns. 288; Cram v. Hendricks, 7 Wend. 582; Sanmorio v. Bruner, 1 Gill Johns. 477, recognised in 1 Hill 10; 2 Renio 621.</p> <p>“ The true test of the validity of the instrument as an obligation which can be sold in the market, is the right of any one to maintain an action upon it before it is discounted: Powell v. Waters, 8 Gowen 669, 686; 2 Renio 621. And it cannot be considered as having legal existence as a note or bill, until delivered to some one, by whom an action can be maintained when it shall fall due: •8 Gowen 697 ; 15 Johns. 57.”</p> <p>Pie further observed, “that the question of notice to or knowledge by the purchaser of the character of the paper seemed to be 'treated by the Courts of New York as unimportant:” 8 Goiven 669; 1 Rill 9; 1 Gill # Johns. 477; 15 Johns. 44; Id. 535; 3 Johns. Gases 206 ; 10 Paige 326.”</p> <p>He further stated: “We consider the law settled, that where paper is usurious in its formation, or an act of usury is committed in the manner of putting it into the market, an endorser will be responsible to a bona fide holder. By his endorsement he not only contracts for the solvency of the drawer, but for the validity of the paper; and if from either cause a subsequent holder is unable to collect it, he may resort to the endorser on his contract. Nay more, if tbe note were forged, he would be responsible as an endorser. This doctrine has not, in any case, been applied to an accommodation endorser who never made any contract with the holder, or received any money from him, but is solely applicable to securities rendered invalid by usury committed prior to the endorsement.”</p> <p>^ íjt 5{í ?j< iji</p> <p>“ Some conflict of decision exists in the different states as to the extent of an endorser’s responsibility, who is- called on to guaranty paper, valid in itself, but which he sells in the market at a rate of discount exceeding legal interest. By some Courts it is held to be a usurious contract, and void; in others, that the usury must exist in the original concoction or disposition of the security which first rendered it obligatory. In New York it is clearly settled, that such a sale and guarantee is not usurious; as the contract only binds the endorser or guarantor to refund the money received, leaving the holder to look to the original obligor alone for the balance: 21 Wend. 285; 4 Sill 472; 13 Johns. 52.</p> <p>He further observed that, in New York, it has been decided, in a number of reported cases, that an endorser can set up usury as a defence, as the contract is rendered void by the statute, and no one can recover on a void contract. All that either drawer or endorser has to do, is to establish the usury; and the security is, by the statute, made absolutely void. If the person who actually received the money is entitled to relief, a fortiori should he' be, who did not receive it, but was a mere surety for its re-payment.</p> <p>In relation to the Act of 1850, he observed: — “ The construction of this statute does not seem to have come under the consideration of the Courts, so far as we can learn, and we are bound to construe it in connexion with their other laws. There is nothing in the Act repealing, or even tending to repeal, the statutes of New York against usury. The person lending money at usurious interest, to a corporation, would still subject himself to the penalty imposed by the third section of the code, and to a criminal prosecution under the sixth section of the Act of May 15,1837. These laws are left in full force against the lender. Nor is there anything in the Act of 1850 declaring the contract valid in favor of the borrower — it merely prohibits the corporation from interposing the defence of usury. The object of the legislature appears to have been the punishment of both parties — the corporation for borrowing, and the lender for furnishing the money at usurious rates. The contract remains as it was before under the statute— void as to every other person.”</p> <p>As to the evidence of Tallmadge, the agent, he observed:— '</p> <p>“ The plaintiff’s counsel have further contended, that as the law of the fokum must govern in conducting the trial, we must discard from our consideration all of the evidence tending to impeach this draft in the hands of the plaintiffs — bond fide holders —without notice of its situation when they discounted it. The evidence would be clearly admissible in New York, and nearly every reported case shows that it is there received. Such also is the rule of law, as settled in England and the other states, in like cases. Why shall the law of evidence be different in Pennsylvania ? The statute makes the contract void; and it has long since been declared that the statute comes in like a “ TYRANT,” and sweeps off the paper, in whosesoever hand it may be found. We have applied the same doctrine to negotiated paper in Unger v. Boas, in 1 Harris 601, when given for a gaming debt; and it is equally applicable to every other case, where the security is declared void by statute. The evidence was, in our opinion, clearly admissible, and is very conclusive in making out the case.”</p> <p>Thus expressing the opinion that the negotiation of the bill in question was usurious by the laws of New York, and rendered the bill void as against the defendants, endorsers of it, he directed judgment to be entered in favor of the defendants on the special verdict.</p> <p>It was assigned for error: — 1. The Court erred in rendering judgment for the defendants. 2. In not discarding from their consideration all of the evidence tending to impeach the draft in the hands of the plaintiffs, bona fide holders, without notice of its character when they discounted it. 3. In receiving in evidence the testimony of counsel as to the law of New York, because, where usury is relied on as a distinct and substantive ground of defence, it should be specially pleaded; and such evidence was not competent in Pennsylvania in order to defeat the plaintiffs, who were third parties, without knowledge of the circumstances under which the bill originated, or which might invalidate it in their hands. 4. In receiving the deposition of Tallmadge, he, as a party to the bill, being incompetent to prove that it was an accommodation bill when passed to the plaintiffs -without knowledge of its character; and the subject-matter of his testimony was not admissible to affect the plaintiffs.</p> <p>The law of New York is to govern in the construction of the instrument; the law of Pennsylvania in its enforcement. Accommodation paper is governed by the same rules as paper founded on a real business transaction: 3 Kent 85 — 6; 8 Harris 384; Byles on Bills 214; 9 Watts 141. It is not material whether the endorser receives the money or not: 7 Wend. 227; Byles on Bills 177.</p> <p>Fraud or want of consideration is no defence for either the maker or accommodation endorser of a promissory note against a bona fide bolder: JByles on Bills 1T5; 2 Gfreenleaf’s Kv. 111-114; Id. 121-125; 9 Harris 417; Story on Pro. Notes 195; 1 EÜI 287.</p> <p>The sale of tbe bill in suit was lawful by the New York Act of 6th April, 1850, the first section of which provides that “no corporation shall hereafter interpose the defence of usury in any action.” The Act of 1850 was passed to enable corporations to raise money at a greater discount than 7 per cent., if necessary. This transaction being lawful on part of the company, is binding upon it; and if lawful as to it, how can it be unlawful as to any other party thereto ? Leavitt, J., in the case of Curtis v. Davitt, decided in 1854, and reported in Í7 Barbour 311-367, 8, observed that the Act of Í850 was in the nature of a repeal of the penalties and forfeitures relating to usury; and if the penalties and forfeiture are repealed, there is nothing in the way of recovery in this case. Why should an endorser, who was aware of the character of the bill, bo permitted a defence which the maker could not make ? If the endorsement be made at the time of making the note, the endorser is to be treated as an original promissor: 3 Kent 98, 9; 4 Pick. 385.</p> <p>But was the contract in this case usurious ? It is said, to constitute usury, there must be a loan or forbearance of money. 2. Taking therefor more than the legal rate of interest. 3. A corrupt agreement, or intention to take usury. Both parties must be cognisant of the facts and circumstances which constitute usury: 1 Barbour 43. In this case the plaintiffs had no knowledge of the character of the paper. It was simply a purchase by them, and the statute of usury has no application as to an endorser in relation to a note sold in the market: 3 Comstock 344-359.</p> <p>The Court below considered the law settled that when paper was usurious in its formation, or an act of usury is committed in putting it into market, an endorser will be liable to a bona fide holder, as by his endorsement he contracts for the validity of the paper — but supposed that this principle was not applicable to the case of an accommodation endorser, who made no contract with the holder, nor received any money from him, but was solely applicable to securities rendered invalid by usury committed prior to the endorsement. That accommodation endorsers were not an exception, reference was made to 7 Johns. 360; 1 Barb. Ch. B. 43; and 9 Barb. 647.</p> <p>We take the position that if the purchaser of an accommodation bill be a bona fide holder for value, without notice of anything which renders the bill invalid, he may recover from his immediate endorser at least the amount which he paid for the bill: 5 Ban-dolfhZ33; 4 Humphries 244; é Whar. 222; 1 Harris 270, Van-tine v. Wood; 2 Benio 621; 7 Johns. 360; 6 Hill 244; 1 Barbour 13; 8 Qowen 669. There is no reported decision in Neiv York that an endorser can set tip the defence of usury when the drawer cannot do so. The case of Ballingalls v. Gloster, 8 East 482, cited in this connexion.</p> <p>The opinions expressed by the counsel in New York as to the law of that state, were expressed in view of a supposed state of facts which do not exist in the case; and the Act of 1850 was not referred to by them.</p> <p>Tall-madge was not a party to the bill, and was not within the rule that a party to a bill or note actually negotiated cannot be a witness to impeach it. The paper was passed by the railroad company directly to the plaintiffs, and was therefore not received by them in the usual course of business: 4 W. Ser. 287, Parke v. Smith. But if there was error in the admission of Tall-madge, Robbins testified that he sold the bill for Patchin, the president of the company, and paid the proceeds to him. Thus the defendants were mere accommodation endorsers. The bill being mere accommodation paper, it had no legal existence till negotiated: 20 Johns. 288; and was not before binding between the parties as a contract, none of whom could have maintained an action upon it. Therefore its negotiation with plaintiffs was in law a loan of money, and being usurious was invalid in their ■hands: 20 Johns. 288 ; 2 Eenio 621; and -whether the plaintiffs knew or not that it was before unavailable: 8 Oowen 669; 1 Kill 10; 3 Grill Johns. 483.</p> <p>The distinction between the purchase of a note and a loan is settled. A note -which has been negotiated by the maker, and which may be enforced against him by the holder at maturity, may be sold at a greater discount than seven per cent, without involving the penalties of usury. But the note must be perfect and available to the holder to make it saleable by him. The test is the right to maintain an action upon it if due: 15 Johns. 55. If a party takes more than legal interest, he must be presumed to have intended to do it.</p> <p>To the allegation that the plaintiffs believed the bill to be business paper, it may be replied that no questions appear to have been asked by them, arid no communication made. A bond fide holder is one who takes paper at the legal rate, and without notice of its being tainted with usury. If ignorance be a protection, the statute may be evaded by silence. But notice is not necessary by the laws of New York, in order that the statute may operate, even in the case of a bona fide holder. By the Act of 1837 all notos- or bills upon which more than the prescribed rate is taken are void, whether the holder had notice or not: 3 Johns. Oases 66; 8 Oowen 670; 15 Johns. 354-5; 7 Wend. 569; 10 Paige 326.</p> <p>The only effect of the Act of 1850 is to prohibit a corporation from interposing tbe defence of usury. The bill, as between the other parties to it, remains as before — void. The case in 17i7i Barbour merely decided, with respect to the Act of 1850, that it operated on existing as well as subsequent suits.</p> <p>It appeared from the depositions that the bill was accommodation paper, not negotiated before discounted by the plaintiffs, and that it was discounted at the instance of the agent of the company at more than seven per cent, per annum, and the proceeds paid to the president of the company for its use. According to the authorities the legal inception of the bill was its negotiation to the plaintiffs. Before that no action could be maintained upon it. Its being discounted at more than the prescribed rates was a loan, and not a purchase, and usurious and void as to the defendants, whether the plaintiffs knew the character of the paper or not; and the defence in this case is not impaired by the Aot of 1850. The defendants put their names to the bill which was liable to be affected by usury, if improperly negotiated, and did nothing to induce its usurious negotiation to the plaintiffs; and, as sureties, they are entitled to avail themselves of the defence.</p> <p>By the law of New York, where a note is business paper, it may be sold for more than seven per cent. — where it is not business paper it cannot. The plaintiffs were bound to inquire into its character. In the case of Vantine v. Wood, 1 Harris, there was a false representation. The case would be the same if the defendants had got the money. The defendants here signed in blank— and they had no agency in the negotiation of the bill. Other cases exist where the note was negotiated out of the state of New York. The proviso in the Act of 1828 in favor of Iona fide holders was repealed by the Act of 1837. The Act of 1850 was not designed to be a repeal of the usury laws, but was rather intended to be penal in its character as to corporations. It is not limited where a corporation is drawer, but may apply where it is an endorser.</p> <p>The note in suit was not usurious in its origin, and was bought in the market as business paper. Where a party, who sells a note, does not put his name upon it, it is treated as a purchase and not as a loan. The Act of 1850 is applicable only to the case of a loan, and not to a purchase.</p>

<p>ERROR, to the Common Pleas of Berks county.</p> <p>This was an action on the case, to April Term, 1854, by Samuel Kindt v. Jacob and Daniel Stout, to recover damages for flooding the cellar and garden of the plaintiff. Pleas, not guilty, and order of the supervisors, and the statute of limitations. The defendants were the owners of land situate on the side of a hill. The water from rain and snow had, for fifty or more years, been conveyed along a watercourse through their land to ponds upon it. .In ordinary seasons the ponds were sufficient to contain the water; but in extraordinary seasons there was an overflow, and the water would run upon the plaintiff’s land. In 1844 the ditch leading to the ponds was closed by the defendants, and the water was thrown upon the public road, where it was prevented, by slight elevations in the ground, from reaching the plaintiff’s land. The accumulation of water upon the road injured it, and in the fall of 1848, at the solicitati®n of the defendants, one of the three supervisors, another one of them having refused, consented to the construction of a ditch to convey the water from the road, and he directed the defendants to dig it. They dug a ditch two or three feet deep near the track of the road. It did not appear that they were paid for digging it. The effect of the ditch was to convey the water to the base of the hill, whence it flowed upon the plaintiff’s land, upon his meadow and yard, and into his cellar, and did him other injury.</p> <p>Jones, President Judge, charged, that he did not consider that the plea of the statute of limitations would avail the defendants. He observed, that the closing of the watercourse in 1844 was not productive of any injury to the plaintiff, but relieved him from injury in extraordinary seasons. That the supervisors, as they had a perfect right to do, authorized the ditch dug in 1844 to be constructed by the defendants, and for this act the defendants were not responsible to the plaintiff. That the only act for which they were so responsible was the obstruction of the watercourse. That that act was not immediately injurious to the plaintiff; still if, as its consequence, since the road ditches were opened, more water was brought down upon the plaintiff’s land, and more injury done to him than would have been done if the old watercourse were open, the defendants were answerable. He further charged, that the cost, care, and trouble of the suit were not to enter into the estimate of the damages.</p> <p>January 18, 1855, verdict for $175.</p> <p>Error was assigned to the charge as to the statute of limitations, and that the defendant's were answerable for the closing of the watercourse, if, since the road ditches were opened, injury therefrom was sustained by the plaintiff.</p> <p>It was contended that the only wrongful act of the defendants for which they were answerable to the plaintiff, was the closing of the watercourse, and that this being done in 1844, any action therefor was barred by the statute. By the Act of 1718, the statute begins to run from the happening of the cause of action. The opening of the ditch in 1848 was the proximate cause of injury to the plaintiff, and for this act the defendants were not responsible. That the statute begins to run from the commission of the injurious act, and not from the time when consequential injury accrued, reference was made to 7 Barr 27 ;■ 5 Barn, f Ores. 259, Howell v. Young; 4 Sam. 331; 4 Leigh 474; 4 Ala. 493; 1 Sandf. 98; 2 Strobh. 344. Fraud makes an exception, and in such case the statute runs only from the time of discovery.</p> <p>2. The act of diverting the water in 1844’ was too remote as a cause of action. Further, it was committed on the lands of the defendants where the plaintiff had no easement. Easement is a privilege which one man has on the lands of another. If, therefore, the closing of the watercourse in 1844 was a public injury, it did not injure the plaintiff.</p> <p>There is no difference in principle between diverting a stream of water constantly running, and water collecting from rain or snow flowing occasionally. The right to divert water from its accustomed flow to the land of another, is an easement, which can be acquired only by grant, user, or a license executed. To acquire such an easement in Pennsylvania by user, 21 years’ enjoyment is necessary, in analogy to the Act of Limitations of 1785, in relation to lands: 10 Ser. B. 63, Strieker v. Todd; 2 Watts 330, Hoy v. Sterret; 5 Whar. 597.</p> <p>Obstructing the accustomed flow of the water, and causing it to flow on to plaintiff’s land, was a continuing nuisance. Every continuance of a nuisance is' a fresh one, and in this case every flow of rain water constituted a new nuisance. It is therefore contended that the plaintiff had a good cause of action so long as no right was acquired by the defendants by a user of 21 years. 1 Salic. 11, “Every new dropping is a new nuisance.”</p> <p>As to the limitation. In actions on the case in which consequential damage is the gist of the action, or where the damage is continuing, the limitation begins to run from the accruing of the consequential damage: 16 Hast 215; 6 Bing. 489; 1 JL. f M. 161; 1 Oar. cf P. 541. This principle is recognised in the case of Howell v. Young, 5 Barn. 0. 259. In the cases cited on the part of the plaintiffs in error, the damage was not continuing.</p> <p>The ditch was cut with the consent of one supervisor only, and at the- instance of the defendants. It was contended in the Court below that authority from one -supervisor was not sufficient to authorize the ditch to be cut. 2. That if a majority of the supervisors had ordered it, yet if the road was injured by a deep and dangerous ditch alongside of it, the supervisors would have been guilty of a nuisance. 3. If the consent of the supervisor was obtained by the defendants merely for their own advantage, and not with a bona fide intent to repair the road, it did not free the defendants from liability to the plaintiff.</p> <p>But if the wateroourse had not been closed, there would have been no occasion for the ditch. It was the closing of the watercourse which occasioned the necessity, if there was such, for the ditch. But if the ditch had been cut, and the watercourse had remained open, less water would have flowed upon the plaintiff’s land; and for the injury done by such excess of water, the closing of the watercourse was the proximate cause.</p>

<p>1. The forms in which assessments of unseated lands are made and entered, and the mode of certifying or transmitting them to the county treasurer, are matters of oficial practice, entirely at the discretion of the commissioners of the several counties, subject only to the condition of being intelligible; and they must be expected to be very various.</p> <p>2. The authority of the treasurer to sell unseated land for taxes depends upon the facts: that the land was unseated at the. time of the assessment; that a tax appears to have been, and was in fact, assessed upon it by the proper officers; and that the tax has been due for one whole year, and remains unpaid. The absence of either of these facts involves exemption from the penalties of the Acts of 1804 and 1815.</p> <p>3. This authority has been restricted by construction, in some instances, for the protection of innocent persons, who, relying on the customary forms of taxation, may have been led into the mistaken supposition that tnere was no tax charged upon the land, hut only against the owner personally : S Watts 260 ; 4 W. & Ser. 133 ; 8 State R. 169; 14 Id. 404.</p> <p>4. The tax hooks in the offices of the commissioners and treasurer are not intended to give notice of the liability of land for taxes; hut are merely the mode in which the tax accounts are kept; and they are open to he corrected or proved erroneous when any interests depend upon the fact expressed by them.</p> <p>6.Placing land taxes on the collector’s duplicates is not, of itself, a declarar tion by the taxing officers that the land is seated, and has no tendency to mislead any one into the supposition that the land is not to be charged as unseated; though a departure from a well known usage in this regard has been allowed such an effect.</p> <p>6. The purpose of an inquiry into the mode in which the tax books are kept in any county is generally to show how they ought to be understood by the Court and jury ; and then it is relevant to notice the usages of the office in keeping them prior and up to the time of the entry that is to be interpreted; but when a new usage has been introduced the older ones may oast no light upon the entries made under it.</p> <p>7. AVhen the owner of an unseated tract of land goes to the treasurer, and offers to pay to him all the taxes upon it, and does pay the amount demanded by him, and the treasurer credits the payment to another tract, and sells this, it is a good payment and the sale is void.</p> <p>8. AVhen the commissioners purchase unseated land for taxes duly assessed and unpaid, the provisions of the law saving all irregularities in the assessment and process, and giving five years for redemption, are as ample a protection to their title as that which is furnished for other cases by the limitation in the Acts of 1804 and 1824.</p> <p>9. AVhen the commissioners do thus purchase unseated land, and within or after five years allow of its redemption, and convey it accordingly, this transaction, by its very nature, discharges the public duty, rescinds the commissioners’ title and revests that of the next preceding owner. If a stranger thus redeems, he discharges the public duty, without acquiring the title for himself: 4 W.& Ser. 298; 10 State Rep. 513.</p>

<p>ERROR, to tbe Common Pleas of BerJcs county.</p> <p>This was an action by James Norton v. The Little Schuylkill Navigation Railroad and Coal Company, to recover damages for an injury received by him through alleged carelessness on the part of the defendants’ agents in running a locomotive engine over their road, leading from Tamaqua to its intersection with The Philadelphia and Reading Railroad opposite to Port Clinton.</p> <p>The Philadelphia and Reading Railroad Company, for the transmission of freight and passengers from the Little Schuylkill Road to their road, constructed a sideling and a bridge with double track of road, leading from their own road at the Port Clinton station across the Schuylkill river,"and connecting with the terminus of the Little Schuylkill Road on the east side of the river. On the west side of the river the two tracks leading over the bridge came together at a centre casting, and the single track switched into the main track of The Philadelphia and Reading Road. Over this connecting road the defendants run passenger trains generally twice a day, on the west side of the river, usually stopping at the centre casting.</p> <p>Edward Burns, the brother-in-law of the plaintiff, having a contract with the Philadelphia and Reading Company for sawing wood, and also being at the time the general agent of that company at the Port Clinton station, employed the plaintiff and others to saw wood. Burns had a portable steam-engine and circular saw, for the purpose of sawing wood, placed on the connecting link between the two roads. On the morning of the day on which the accident happened, the machine was placed on the single track below the centre casting; and in the afternoon it was removed to one of the tracks, about 25 or 80 feet above the centre casting, and between it and tbe bridge. The machine was fastened to the road by wedges. The plaintiff had been working at the station during several weeks, and knew that the defendants’ train ran over the track, and the usual time of running. The machine belonged to the Reading Company, and Burns testified that his instructions were to cut the wood wherever the agents of the company delivered it.</p> <p>On the morning of the day on which the injury was sustained, viz., 20th April, 1850, the conductor of the passenger train of the defendants, saw the party, who were engaged in sawing, at work. He left the station for Tamaqua about 12 o’clock, running on the eastern track, and he returned with a train during the afternoon of the same day, running on the western track on which the machine was fastened, and it was struck, the circular saw was forced against the hand of the plaintiff and his thumb cut off. To recover for this injury the action was brought.</p> <p>The arrangement between the two companies for the use of the sideling and track was not particularly shown — but the superintendent of the Reading Road testified that the track, leading from the main track, was built by the latter company for the joint use of the two companies — that the two companies used it jointly, neither having the right to obstruct the other.</p> <p>On part of the plaintiff in the action it was alleged, that about the time the train left Port Clinton, viz., about 12 o’clock, the machine was, most probably, above the centre casting, and was seen by the conductor of the train, and that he should have returned on the track which was unobstructed. Also, that the machine might have been observed, and the noise made by it in the process of sawing might have been heard, and that the bridge was crossed in a careless or incautious manner, the rails at the time being wet and slippery; and that the conductor in excuse said he had forgot* ten that the machine was on the track. Further, that the plaintiff was lawfully engaged at work for the Philadelphia and Reading Railroad Company; that the use of the track at the time was a reasonable use, and that the other track was left unobstructed; that the right of the defendants to use the tracks was to load and receive passengers without regard to any particular spot, and as long as ample space was left them for those purposes, they had no right to come to the centre casting if it was otherwise obstructed. Whether the machine was placed above or below the centre casting when the train for Tamaqua was started did not certainly appear, but the piles of wood extended beyond the casting towards the bridge.</p> <p>On the part of the eompang it was said that they had a right to run their trains over the road at the time they did; that for such right they had paid the Reading Railroad Company, and that neither that company nor any individual had a right to obstruct them; that nó notice of the obstruction was given; that there was no proof of négligencé on part of their agents; alsoj that when the machine; which was concealed by the bridge, was discovered, the engineer fevérsed the engine, and signalled for applying the brakes. Further, that the plaintiff, at that or any other'time, had no right to bé upon the track employed as he was; and that his being there, obstructing the road, contributed to the injury, and that he could hot recover.</p> <p>JONES, P. J., charged that negligence in the defendant, and a want of it in the plaintiff, weré necessary to sustain the action, unless there were circumstances which took the case out of the Operation of the rule. Hé further charged that if the sawing machine did not obstruct the reasonable daily use of the road,.it might be lawfully there; and if so, the Támaqua train should have been run with regard to the right of the Reading Company to have it there. That whether the machine, on the morning when the conductor saw it, was above or below the centre casting, it was working at piles of wood which extended beyond the centre casting-and towards the bridge. He said if the sawing machine was put there without the knowledge of the conductor, the collision might have been accidental, and no remedy existed; but if the conductor knew it, thé question of negligence on his part was for the jury. He further charged that he considered that the plaintiff was lawfully on the track; and that the defendants’ agent, knowing that thé machine was working along the wood, was bound to look out for it, and to exercise ordinary care and caution in approaching it. Also, that the plaintiff Norton was not bound to look after the position of the switch on the oppoáité side of the river, and that the omission to do so was not negligence on his part.</p> <p>Verdict for plaintiff for $1600.</p> <p>Error was, inter alia, assigned to the charge as to negligence. Also in charging that the machine was lawfully on the road; that if the conductor knew, of its being there, the question of negligence on his part might be considered; and that the plaintiff was not bound to see to the arrangement of the switch.</p> <p>One cannot recover for an injury arising even from the gross negligence of another, unless he himself be free from culpable negligence: 5 W. & Ser. 524; 6 Whar. 211; 1 Coweri 78; 2 Pick. 621; 6 Cow. 189; 1 Vermont 853; 7 Harris 298; 11 Harris 147.</p> <p>The Court erred in charging that the plaintiff was lawfully on the track. This was a material error. They also erred in charging that the agent knew the plaintiff was on the track, or that he might he there, and was bound to look out for him. '</p> <p>When tbe jury are instructed correctly as to tbe general rule, it is not a ground of error that all tbe exceptions to it are not stated: 7 Karris 35Q. What is ordinary care depends on tbe circumstances of the case.</p> <p>Though tbe plaintiff was not entirely without fault, yet if the accident could have been avoided by the exercise of proper care on the part of the defendants, they are liable: 10 Mees. <f> W. 345, Davies v. Mann; 5 Esp. K. P. 0. 44. When the negligence of the defendant is the proximate, and that of the plaintiff the remote cause of the injury, action may be supported, although the plaintiff is not entirely without fault: 24 Vermont 488 ; Am. Law R. April, 1855; 15 Ad. El. 35. Though the plaintiff was in the wrong, the defendants were not absolved from the observance of due and proper care towards him: 16 Am. Law Reg. April, 1855, p. 356; 16 Conn. 421; 58 E. C. L. 376; 4 Karris, Beattie v. Gilmore; 8 Id. 175, Morrison v. Davies.</p> <p>The Court did not charge that the sawing machine could be put on the road merely to obstruct it; but that, as its operation was useful to the Reading company, it could be used on the road if ample space and convenience was left for the train to pass. Though Burns had the machine placed on the road, it is to be considered as if placed there by the Reading Railroad Company, as he is to be considered as its agent, whether the work was done by him by contract for a stipulated price, or by workmen directly employed by the company: 28 Rich. 24, cited in 1 Railway Cases 289; 1 Bos. ¿- Pul. 403. The plaintiff was not guilty of negligence, but was lawfully engaged, being employed by Burns, the agent of the Reading Railroad Company; and the collision might have been avoided by due care on the part of the company’s agent. The conductor should have informed the engineer that the machine was on the track. There was another track to pass upon.</p>

<p>Trespass will not lie against one for removing a gate upon Iris own land, though the plaintiff has a right of way through it, and though he assisted in its erection: hut if erected, under a promise or agreement that it is to remain, case may lie for the labor expended and perhaps for injury sustained by its removal.</p>

<p>ERROR to the Common Pleas of Blair county.</p> <p>Action on the case by Eckel, Spangler & Raiguel against Levi Slingluff and another, administrators, &c., of John Belch, deceased.</p> <p>John W. Potts was the owner of two tracts of land, which was bound by a number of judgments, including two in favor of the plaintiffs. In 1845, a writ of vend. ex. was issued upon a judgment in favor of Lex & Son, and one of the tracts was exposed to sale. A. Bunn, as agent of the plaintiffs, testified that he attended the sale, having been requested by the plaintiffs to bid for them. That during the sale, Belch agreed with him that if he would not bid upon the property, he, Belch, would see the judgment of the plaintiffs paid after the balance of Potts’s land was sold. The agent did not bid, and Belch became the purchaser for $2000. The property was afterwards sold by Belch for about $2800. After distribution of the proceeds of sale of both properties, there was unpaid of the plaintiff’s judgments above $500, and to recover the amount this suit was instituted.</p> <p>Taylor, J., observing that it was objected that a contract such as this was contrary to public policy, and could not, in law, be enforced, referring to the case of Thompson v. Davis, 13 Johnst. 110, expressed doubts upon the subject; but charged that the action could be maintained. Such instruction was assigned for error.</p> <p>The agreement was against the policy of the law which encourages competition at public judicial sales, and was therefore void.</p> <p>There is one class of cases which protects a purchaser against fictitious bidding. Reference was made to Oowp. 395, Bexwell v. Christie; 6 Term Rep. 644, Howard v. Castle; 3 Ves. 622; 2 Oar. if* P. 208; 15 Mees. $ W., Thoret v. Haines; 2 Harris 448, Pennock’s Appeal; 4 Id. 203, Staines v. Shore.</p> <p>Agreements by bidders to prevent competition cannot he enforced: 1 Story’s Hq. 293; 2 Johns. Oases 29; 13 Johns. 112, Thompson v. Davis. In other cases it was held that where two or more persons united their means to purchase, the agreement was calculated to prevent competition, and was void: 6 Johns. 194; 8 Id. 443. To the contrary were the cases in 1 W. Ser. Smull v. Jones; 3 Met. 384; 15 Howard 494.</p> <p>Also cited 25 Maine 14; 5 Houston 87; 13 Louisiana 289.</p> <p>The plaintiffs were the next lien-creditors. There is no confidential relation between bidders: 1 W. Ser. 136-7, Smull v. Jones. Though the sale to Belch may be void, the contract between him and the plaintiffs should be enforced: 1 Jones 207, Fox v. Cash. Though an illegal contract will not be executed, yet when the illegal object has been accomplished, the money or thing which was the product of it may be, as between the parties, a consideration for the promise: 5 Barr 81, Destapies v. Ingraham, cited in the case of Fox v. Cash.</p>

<p>1. A corporation of a sister state may take land in this state by gift or devise to be expended for charitable uses. See remarks on the case of The Methodist Church v. Remington, 1 Waits 218.</p> <p>2. A devise was made of land in this state, “ one-half unto the Methodist Preachers’ Aid Society of Baltimore (a society incorporated in Maryland), and one-half to the Missionary Society of the Methodist Episcopal Church in Nevr York, their successors and assigns for ever, to be disposed of as the managers of said societies shall think best, so that the profits or interests arising therefrom be annually appropriated to the object of said societies for ever the object of the first society being to afford relief to the itinerant ministers of the said church, their wives, widows, and children, and for the education of the latter; the object of the other being to diffuse more generally the blessings of education, civilization, and Christianity throughout the United States and elsewhere. It was Held that the devise was not forbidden by the policy or law of this state, and was valid, there being no evidence in the ease that the corporations by this devise would have a greater income than by their charters they were competent to possess.</p> <p>3. The devise being of the land itself, to be disposed of by the devisees at their pleasure, gave a fee simple in the land, notwithstanding the words “ so that the profits or interests arising therefrom be annually appropriated to the objects of said societies for ever,” and did not impinge on the policy of the law against perpetuities.</p> <p>4. Where a, corporation of another state is generally competent to talce land/ the prohibition, in the statute of wills of the state in which it was created, against all devises of lands to corporations, does not prevent it from taking and holding land in this state by devise of one of our citizens. ' The statute was intended to regulate the testamentary power of their own citizens, not of ours; and to define the capacity of testators and not of corporations.</p> <p>5. It was not a valid objection to the said devise that the charities of the society were not limited in their sphere of action by the lines of this state. The state does not forbid its citizens from creating or fostering by gift ox-bequest chax-itable institutions which operate in other states or countries.</p>

<p>1. The amount of compensation to a trustee must depend on the discretion, which is the reason and conscience of the tribunal having jurisdiction of the trust; and in fixing it, regard is to be had to the amount and character of the trust estate, and to the labor, skill and success attending the administration of it.</p> <p>2. The same rule is applicable to the question of interest, and to counsel fees.</p> <p>3. Where an assignment was made of all the assignor’s estate real and personal for the benefit of his creditors, it was Held that this was a direct and continuing trust, and that the assignor could not allege the statute as a bar to the assignee's obtaining credit for claims existing against the assignor at the time of the assignment, but which were not paid by the assignee till they had been due above six years, the trust having continued for about thirteen years before the sale of the last and most valuable portion of the trust estate.</p> <p>4. The assignment being in trust to pay creditors, was a trust exclusively cognisable in equity; and though jurisdiction over it was vested in the Common Pleas it was vested as an equity power, and the proceeding against the trustee must be according to the course of Courts of Chancery and not by action at common law; and though the assignor if sued at common law by any of his creditors,-might have interposed the bar of the statute to the personal claim, yet the assignee standing in a fiduciary relation to the creditors could not interpose it, and therefore the assignor shall not set it up against the assignee in relation to claims which it was obligatory upon him to pay.</p>

<p>Appeal from the decree of the Common Pleas of Lancaster county.</p> <p>This was an appeal by James B. Lane, from the decree of the Court on the report of auditors referred to in the case of Heekert’s Appeal. The assignment to the appellant was made on 11th May, 1840.</p> <p>• The land, the proceeds of sale of which form the subject of the account, was sold on 3d March, 1853, on payments. The first instalment, exceeding $26,000, was paid on 24th March, 1853, and on the 18th April, 1853, the account of the assignee was filed. On 17th May, 1853, exceptions to it were filed on part of the assignor. In August, 1854, auditors were appointed to j>ass upon the exceptions and to report distribution. It appeared that a bill in equity, on the part of Heckert, had been submitted, perhaps in March, 1853, which was not finally disposed of by the Common Pleas till 21st March, 1854. An appeal to the Supreme Court was taken by Heckert, and, in July, 1854, the decree of the Common Pleas was affirmed.</p> <p>The auditors,- without assigning any reasons for the decision, charged the accountant with interest on the balance of his account, being the cash in his hands, from 17th May, 1853, when exceptions were filed, till 5th March, 1855. Also with interest received after the account was filed. The accountant was allowed two months to invest, and interest was charged afterwards.</p> <p>The exceptions filed to the report of the auditors were to the same effect as those filed in this Court on the appeal, which were,</p> <p>1st. The assignee ought not to have been charged with interest on moneys in his hands, as it appears from the evidence that he could at any time have paid over the amount; and besides, by the first and general exceptions to the amount, he was expressly interdicted- from paying out to creditors any part of the moneys in his hands.</p> <p>2d. The auditors have overlooked the usual allowance always made to assignees for expenses and loss of time in attendance upon audit and for trouble and expenses of distribution to the several parties entitled to the fund.</p> <p>The Supreme Court was asked to allow such sum as they may deem reasonable, including his expenses in the. Supreme Court, which have been increased by printing records and exhibits, which ought to have been attached to paper-book of the assignor, in the case in which he was appellant, and which were given in evidence before the auditors and the Court below.</p> <p>It was observed that the exceptions to the account of the assignee were of such a character as to prevent him from paying out the money. One of the exceptions was general, expressing objection to the sale of the lands, and alleging that a bill in equity in relation to the sale was then pending. It was stated that the money was not used or invested, and no profit made out of it; and that the assignee urged the disposition of the matter before the auditors. - It .was urged that he should not be charged with interest, -unless it had been shown that he had used the money in his business, or invested it, or made profit from it: 2 Story’s Mq. PI. 1277; 2 Fonibl. eh. 7; Jeremy on Fq. Juris, ch. 1; 1 John. Ch. 620; 6 Watts 250. - He should not have been charged with interest during the time the matter was pending before auditors, &c.: 8 Watts 73.</p> <p>Allowance should have been made to him as specified in the second exception. The matter may have been overlooked by the auditors. The expense of printing records and exhibits should also have been allowed.</p> <p>It was alleged that portions of the trust-money had been used.</p>

ERROR, to the Common Pleas of Dauphin county. This was an action of assumpsit to August T., 1853, instituted in the name of Barbara Bucks. for the use of George Shaffner, assignee, v. George Kaylor. Narr. filed May 23,1853, declaring the defendant to have been summoned to answer George Shaffner, assignee of Barbara Bucks, for an indebtedness in the sum of $118, received by the defendant fpr the use of the plaintiff.

<p>ERROR to the Common Pleas of Berks county.</p> <p>This was a proceeding by scire facias on a mortgage executed in 1851, by a husband and wife, of the estate of the wife, for a debt of the husband.</p> <p>On 21st May, 1851, Jacob Miner and Angeline his wife, executed a bond in favor of N. Hicks Graham, conditioned for the payment to him of $1943; and to secure the amount they executed a mortgage of an undivided share or interest of the wife in real estate, in Berks county, to which she was entitled as one of the heirs of her father, who died in October, 1848. The mortgage was acknowledged on the day of its date before the' President Judge of the Court of Common Pleas of Philadelphia, in the manner usual before the passage of the Act of 11th April, 1848.</p> <p>On 4th November, 1853, a scire facias in favor of the mortgagee was issued against Miner and wife on the mortgage, .to November Term, 1853, returnable on 25th November, 1853, being the day -next preceding the last day of the term. It was returned “ Nihil ■habent.” ■ ' „</p> <p>On 21st December, 1853, an alias scire facias was sued out to January Term, 1854, returnable on 2d of January. Returned- “ Nihil habent as to Jacob Miner and Angeline Miner his wife.”</p> <p>February 11, 1854, judgment was rendered for <§2263.70 “by default, for want of an affidavit of defence.”</p> <p>It did not appear that any appearance had been entered.</p> <p>On 27th February, 1854, an affidavit by Angeline Miner, dated on that day, was submitted. In it, it was stated that she was then, and was on 21st May, 1851, and for years previous, a married woman, being the wife of Jacob Miner: that she resided in Reading, Berks county, from September, 1851, till th% fourteenth day of November, 1853, when she went to Philadelphia, and was there till some time in January, 1854, when she returned to Reading. That she never had any notice of the proceeding in this case, or that any scire facias had been issued on the mortgage. Further, that her husband and another, as partners, were indebted to the plaintiff, and that, before the execution of the bond and mortgage, the plaintiff declared that the same were to be only a collateral security, and also alleging merits; and it was further alleged, that her written consent to encumber her estate by mortgage had not been acquired previous to the execution and delivery of the mortgage.</p> <p>The bond was a joint and several bond with warrant of attorney to confess judgment.</p> <p>A'rule was granted to show cause why the judgment should not be opened. On July 1, 1854, the death of the wife was suggested. On 26th July, 1854, the rule was discharged. On 9th October, 1854, a scire facias was issued to substitute the administrator of the estate of the wife; and, on January 8,1855, substitution was directed.</p> <p>A writ of error was taken.</p> <p>On 21st April, 1852, an Act was passed, (see Acts, p. 386-7) providing that, in Berks and Tioga counties, in actions on bonds, notes, &c., and other instruments of writing, including eases of scire facias on mortgage, notwithstanding appearance by attorney, judgment for want of affidavit of defence might be taken after twenty days from the return day.</p> <p>It was, inter alia, assigned for error: 1. That the Act of 1852 did not apply to. the case of scire facias on mortgage after two returns of nihil. 2. That judgment should not have been rendered against the wife, as the mortgage was of her real estate, and her written consent was not acknowledged as prescribed by the Act of 11th April, 1848 (Acts 536.) 5. The Court should have opened the judgment, as she had no actual notice of the writs, although she lived in the county of Berks whilst the writs were in the sheriff’s hands; and because merits were alleged in her affidavit. 6. The administrator of her estate should not have been substituted, it being alleged that her death discharged her and her estate from liability. '7. It was alleged that she was but a surety in a joint obligation, and that her estate was discharged by her death.</p> <p>The Act of 21st April, 1852, was intended to apply to eases where the process had been actually served on the party. A writ of error not abating by the death of the defendant, his executors may be made parties by two returns of nihil: Yelverton 113. So Lord KeNYON thought special bail might be so rendered liable: 1 Hast 89. The practice is liable to abuse: Per Ser&eaNT, J., 2 Watts 492. But to entitle a plaintiff to a judgment upon two returns of nihil habet, the second scire facias should have been issued ten days before the return day: Laws v. McDaniel, D. C., Philadelphia, 3 Penna. Law Jour. 72. Two returns of nihil are treated as equivalent to a service only from necessity, when no service can be made. 2d, 3d, and 4th assignments. — The written consent of the wife should have been first had, and have been acknowledged according to the Act of 1848. 5. The wife had no notice of the writs, though she was in, and resided in, Berks county. This Court have authorized a party to withdraw his writ of error where manifest injustice ha3 been done, in order to allow the Court below to open the judgment and grant relief: See 2 Watts 493-4; 2 Whar. Dig., p. 441, pi. 315. 6 and 7. The estate of the wife was discharged by her death: 6 Ser. cf R. 262; 2 Brown 31; 2 Rawle 428 ; 1 Id. 255. The bond was void as to the wife: 3 Whar. 309; 6 Harris 79, Caldwell v. Walters. The mortgage was joint, and she was but a surety. It was said that the Act of 11th April, 1848, as to joint and several obligors, applies only where all the debtors are jprincipals, and not to the case of a married woman who is inca,-pable of legally executing a bond. Also the mortgage was to secure the bond, and the bond was void as to her.</p> <p>was not heard in reply. In the printed argument, it was stated that two returns of nihil have the same effect as a return of scire feci, where the suit is founded on matter of record: Yelverton 112; 1 Cowen 70; Story 281-8; 2 Watts 492; 2 Tidd’s Pr. 1039. Two returns of nihil are considered as equivalent to a garnishment, a service of the writ of scire facias, or a return of scire feci by the sheriff; and it has been the practice, where there is no appearance on the second return of nihil, to render judgment as where scire feci has been returned: Keüotedy, J., in Warder v. Taintor, 4 Watts 270. The Act of 13th June, 1836, as to service of writs, has made no change in the practice: 2 Whar. 9, Chambers v. Carson. There was then no obstacle to the rendition of a judgment for default of appearance; and a fortiori, on 11th February, 1854, to judgment for want of an affidavit of defence.</p> <p>The execution or acknowledgment of the mortgage is not to be raised in this Court. The mortgage was properly executed and acknowledged: 1 Dallas 17; 3 Wliar. Reference was made to Act of April 9,-1849, validating deeds made, and acknowledgéd by married women since the Act of 11th April, 1848; and to the Act of 18th April, 1853. These Acts have been held to be constitutional: 16 Ser. ¿'JR,. 35; 1 Watts 301; 3 Whart. 84; 1 Harris 400; 7 W. f Ser. 440; 7 Watts 561; 2 Pa. L. J. 17. The' refusal to open the judgment is not the subject of review: 6 Watts 26; 14 Ser. ¿ R. 143 ; 1 Rawle 323; 2 Barr 435; but no merits were shown on the hearing. 6 and 7. The judgment was not 'personal; it created no new lien — it was a mere order to sell the land by virtue of the mortgage. The land belonged to the plaintiff till his debt was satisfied. The judgment survived as to the realty: 9 W. Ser. 85., Rut by the Act of 11th April, 1848 (.Acts 536), both personal and real property of a deceased joint debtor are liable for the debt for which judgment has been obtained, though the other joint debtor be living.</p>

<p>1. A merger of securities is not necessarily an extinguishment of the antecedent debt. Whether or not the new security is to be a satisfaction of the original debt by substitution depends on the intention of the parties.</p> <p>2. A debt by book account was contracted before the 4th July, 1849; and on 21st October, 1851, his sealed note for the amount was given by the debtor to the creditor, and an entry thereof was made in the books to balance the account. The note was afterwards transferred and judgment obtained upon it, and levy made on the debtor’s personal property.</p> <p>'Held, that no intention appearing to extinguish the debt on book account by the sealed note, the debt was to be considered as having been contracted before the 4th July, 1849, and that the debtor’s .personal property was not protected from execution therefor by*the Exemption Act, which was applicable only to debts contracted on and after that date.</p>

<p>ERROR to the Common Pleas of Adams county.</p> <p>This was an action of debt by David Reed’s executors v. Alexander Campbell, for the one-half of $114.88, which was the distributive share of David Reed, in certain moneys which had been in the hands of the defendant as administrator of the estate of Samuel M. Reed, deceased, who died in Adams county in 1830, without issue.</p> <p>Samuel M. Reed had two brothers, one of whom, William Reed, died in Maryland. The other brother, David Reed, had left Adams county and removed to the west.</p> <p>An administration account of the defendant was confirmed in December, 1834, leaving a balance of $114.88, for distribution amongst the heirs. The administrator of the estate of William Reed claimed the whole balance, on account of the absence of David Reed, and of an alleged presumption of his death; and suit being threatened, it was paid in 1884, under advice of counsel. The matter thus remained until the year 1853, when claim for the half of the said balance was made by or on behalf of the executor of the will of David Reed.</p> <p>In the suit interest was claimed from 30th December, 1834.</p> <p>On the part of the defendant it was alleged that the residence of David Reed was unknown to him ; that he left Adams county in 1802, and had not been heard of there when the payment was made. «</p> <p>On part of the plaintiff it was testified that the witness knew Samuel M. Reed first in 1820, and that he talked about David Reed living in western Pennsylvania — talked about Monongahela.</p> <p>Another witness said that David Reed was married, and with his wife and one child moved west more than thirty years before.</p> <p>The deposition of another witness, taken in Armstrong county, was read, in which it was stated that David Reed settled in Armstrong county, Pennsylvania, between the years 1802 and 1805, and died there about fourteen or fifteen years before the deposition was taken, which was in September, 1853. He said he did not believe that David Reed was in Adams county after be came to Armstrong county, and thought that no communication was had, betweert his heirs and their relatives in Adams county, till about a year previously, when a son of David Reed visited Adams county as a drover; and that he did not think the executors of the will of David Reed knew of the death of Samuel M. Reed until informed of it by David Reed, Jr., after his return.</p> <p>It was further testified that David Reed left a number of children.</p> <p>It was stated to have been admitted on the trial that David Reed never returned to Adams county, from the time of his removal, and had not been heard from for many years.</p> <p>On part of defendant a deposition of one of the counsel of the administrator was taken, in. which it was stated that after demand was made upon the defendant by the representative of William Reed, it was said that the other brother of the decedent had not been heard of for more than thirty years, and the deponent advised the defendant that, under the known cirpumstances, if sued, ■he would be compelled to pay, and that he had better pay and save costs; and that payment was made, and he thought-a release was taken.</p> <p>The other counsel, in his deposition, stated that, when the payment was made by Campbell, the papers were left in the possession of his counsel: that he had made search for them, and had not found them.</p> <p>In his cross-examination he stated that he advised an indemnity to be taken against .the claim of the missing heir, and supposed that one was taken, but had no recollection as to it.</p> <p>The Court charged that “ the defendant having failed in sustaining his defence, the plaintiffs were entitled to recover,” and that the verdict should be for $125.50.</p> <p>The instruction was assigned for er-ror.</p> <p>It was said that when the payment was made in 1834, David Reed was in law presumed to be dead: that although, if the payment had been purely voluntary, a recovery might have been had in this suit, yet the payment was made under threat of suit being instituted, and that the case must depend on the facts as known at the time, and not on those since ascertained.</p> <p>The. statement of S. M. Reed, that David Reed had gone to western Pennsylvania, merely indicated the direction, without showing that his location was known.</p> <p>It was stated that there was no law which authorized an administrator to require indemnity against claim by an absent heir— that a refunding bond could only be required for protection against claim ly creditors, and that the jury should have been permitted to determine whether a bond of indemnity had been received.</p> <p>It was contended that, if plaintiffs were entitled to recover, interest was recoverable only from the institution of the suit: Sect. 17 of Act of 29th March, 1832; and Withers’ Appeal, 4 Harris 151.</p> <p>It appeared from the testimony that David Reed was married, and had a child when he removed from Adams county; and it was known that he had settled in western Pennsylvania. It was therefore incumbent on the administrator to make inquiry for him or his family, but it was not done. Within a short time after the settlement of the account, the balance was paid. David Reed was then living, and died in 1838 or ’9, leaving several children. Distribution might have been made under direction of the Orphans’ Court, Act of 24th February, 1834; and by section 58, if made without application to the Orphans’ Court, either without indemnity or on such security as was satisfactory to the administrator, it was at his own rish: Sect. 58, above referred to, and 7 Barr 315, Carter v. Trueman. If David Reed were, in 1834, presumed to be dead, the presumption did not apply to his family.</p> <p>Interest was recoverable from confirmation of the administration account: 6 Watts 379, Patterson v. Nichol.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an amicable action of assumpsit in the name of A. K. Fahnestock and others v. H. H. Clark, upon a case stated, in the nature of a wager, for the purpose of determining whether the defendant had the right to continue to act as an auctioneer in the borough of Harrisburg, by virtue of a commission granted to him by the governor, for the purpose of making sales at public auction in the borough of Harrisburg of goods, lands, and other kinds of property not forbidden by Act of Assembly.</p> <p>In pursuance of a provision in the Act of 18th April, 1853, the defendant, on 22d April, 1853, was appointed an auctioneer for five years. By the 12th section, other persons were forbidden to make sales at auction, or to exercise the business or occupation of an auctioneer, within the said borough. The defendant paid $25 into the state treasury as required by the Act of 1853. On 18th April, 1854, the said provisions were simply repealed.</p> <p>PearsoN, P. J., observing that the employment was called in the Act of 1832, the “ trade or occupation” of an auctioneer, held that it was not an office, referring to the case of Commonwealth v. Binns, 17 Ser. R. 219, for the position that a distinction exists between a mere employment or occupation, though partaking of a public nature, and an office: and, stating that not observing in the repealing Act any design in the legislature to deprive the defendant of the privileges purchased, he was of opinion that the defendant had authority to sell goods in Harrisburg except so far as such sales were forbidden by the Act of 1832, or other laws prior to 1853.</p> <p>Judgment was given in favor of the defendant, and to this error was assigned.</p>

<p>1. By our statute of -wills of 1833, its provisions are not to apply to the disposition of personal estate by a testator whose domicil is out of the state.</p> <p>2. Wills of real estate must be executed and proved according to the law of the place where the land lies.</p> <p>3. A will containing a devise bf the rest and residue of the testator’s real estate, wherever situate, may be proved and registered in this state.</p> <p>4. By our Act of 1832, relating to registers and registers’ courts, so much of the personal estate of a decedent, whose domicil is not in Pennsylvania, as is actually in this state, shall be administered by executors or administrators constituted and qualified according to our laws; and. to authorize such proceeding the probate of the will according to the law of the domicil is sufficient. Therefore, where the original will, made in .this state, by one whose domicil at the time was in California, was offered for probate in Pennsylvania, it was necessary to show that it was executed according to the laws of California.</p> <p>5. In the California statute of wills of 1850, it is enacted that “No will” (except nuncupative wills) “ shall be valid unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.”</p> <p>Held, that the signing by the testator of a marh to his name, written by another, was a good execution of the will by one whose domicil was in California; his will being made in Pennsylvania, when ill, when on a visit, and where,-soon after, he died.</p>

<p>1. Though it was agreed that evidence taken on a former trial of the ease he read, and all exceptions then taken to have the same effect as if taken at the second trial, yet if error was committed on the first trial in permitting interrogatories to he put to the jury, it was cured when the verdict on that trial was set aside, and was not the subject of exception on a writ of error taken after the second trial.</p> <p>2. In a proceeding hy scire facias on a claim for lumber furnished to subcontractors for the erection of a building, the sub-contractors were competent witnesses to prove that the lumber was purchased and delivered to be used in the building.</p> <p>3. In such a proceeding a promissory note given by the sub-contractors to the material-man for the price of the materials, was evidence of the contract price of the lumber procured; and did not of itself bar a recovery against the building.</p> <p>4. It_was not material for the defendants, the owners of the building, to show that the building was taken down on account of defect in its construction and rebuilt.</p> <p>5. The claim filed, containing a bill of particulars of the lumber furnished and claimed for, read on the trial without objection, was properly sent out with the jury, its correctness being established by the evidence.</p> <p>6. Where materials for the construction of a building were contracted for in good faith, and delivered to the contractor for the building, a lien for the price of the same may be had against the building, though they were not used in the construction, nor were of the quality contracted for by the owner of the building, if that fact was unknown to the seller, and if they were of such a character as to justify their use in the construction generally.</p> <p>7. Where the materials furnished are of such a kind that a careful and skilful man, acquainted with the building for which they were designed, might properly believe that they could be used in its erection, and if, in fact, they could be usefully applied in its construction, then the material-man is not bound to inquire into the character of the materials which the contractor had agreed with the owner of the building to use in its construction. ■</p> <p>8. A. claim filed in due time for lumber furnished in and about the erection and construction of the building and appurtenances, describing the building, accompanied by a bill of particulars, in which it was stated that the lumber was delivered for the building in question, designating it, is a sufficient compliance with the requirements of the statute.</p> <p>9. If the materials were not furnished upon the credit of the building, but upon that of the contractor, the material-man could not enforce the claim against the building; and, though furnished upon the credit of the building, if the contract was unfairly made for an exorbitant price, the plaintiff could recover against the building only what they were fairly worth.</p>

<p>Appeal from the decree of the Orphans’ Court of BerTcs county, confirming a sale of part of the real estate of Jacob Breil, deceased. ■</p> <p>' The estate of the decedent had been appraised. A portion of it, viz., part No. 6, consisting of 67 acres, more or less, having been appraised at $845, and not being taken at the appraised price, was directed to he sold by the administrator of the estate. No terms of sale were prescribed in the order. •</p> <p>In the conditions of sale, ten per cent, of the amount of the sale was required to be paid immediately after the sale. At the time of the sale Isaac II. Bechtel had a notice read under which he claimed the land as Ms own. He claimed it under a warrant to himself, dated 24th January, 1854. In the order of sale, an adjournment of the sale was expressly authorized, but none of the heirs present requested an adjournment, and the property was struck off to D. Sayer for $110. The sale was made on the 3d February, 1854. Bechtel was the husband of one of the heirs, and a trustee of another heir. A rule was obtained, to show cause why the sale should not be set aside, exception being taken that the price was inadequate — that notice was given of an adverse claim to the land; and that by the conditions of sale ten per cent, of the purchase-money was required to be paid immediately. The want of terms in the order was not specified as an exception.</p> <p>Depositions were taken, and it was testified that the land with a good title was worth from four to six hundred dollars.</p> <p>The Court below considered that mere inadequacy of price was not' a ground of exception, and, not adverting to the want of terms in the order, reluctantly confirmed the sale; and from the decree appeal was taken by Daniel Breil, one of the heirs.</p> <p>It was excepted that the Court erred in dismissing the exceptions and confirming the sale.</p> <p>•By the 42d section of the Act of 29th March, 1842, the Orphans’ Court, after appraisement of an estate and neglect to take it at the valuation, is empowered to make a decree authorizing and requiring the executor or administrator to expose the estate to public sale, “ at such time and place, and on such terms, as the Court may decree.”</p> <p>The conditions of sale were different from the order in requiring ten per cent, of the purchase-money to be paid immediately. Bechtel, as husband of one of the heirs, and as trustee for another heir, was a party to the proceedings; and as trustee he refused to take and asked for an order to sell the property, and after the sale was ordered, viz., on 24th January, 1854, he took out a warrant for the land, and had notice of his claim given at the sale — and thus prejudiced it.</p> <p>The purchaser was not a party to any misconduct, and should not be deprived of the property.</p>

<p>1. The only effect of omitting to give notice of special matter is to confine the defence to the general matters strictly admissible under the pleas on the record.</p> <p>2. In a Rule of Court it was provided that “Where, under any plea, it is designed'to give the special matter, fraud, want of consideration, particular payments, or defalcation, in evidence, a specification thereof in writing shall, if demanded, be given to the opposite party or attorney, within twenty days after demand made; otherwise no evidence of it shall be admitted.”</p> <p>In an action of debt against administrators, on a bond alleged to have been given by the intestate, issues were joined on the pleas of ml debet and payment with leave, and non est factum, the latter being added on the trial.</p> <p>Held, that though specification of'special matter had been asked for and not given, still the defendants could show that the bond was found in the intestate’s house immediately after his death — -that it was never delivered — and that one of the plaintiffs, who was the obligee in the bond, and for whose use the suit was brought, declared, when the bond was found, that she had never seen it before. Such testimony was not special matter within the meaning of the rule, but was general matter, admissible under the pleadings.</p> <p>3. The plea of nil debet is an improper plea to an action of debt on bond; hut advantage of the irregularity can be taken only by demurrer. If the plaintiff goes to trial upon it, he waives the irregularity, and the plea is to be treated as the general issue. See 5 Hsp. 38; Chitty’s PI, 478.</p>

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>This was an action of covenant to January Term, 1852, by Adam Wilver, as administrator of the estate of Susanna Daniel, deceased, v. John G-eorge Daniel, on a bond or instrument of writing under seal, dated 31st March, 1834, by which the defendant became bound to Andrew and Susanna Daniel, his father and mother, to deliver annually during their lives or the life of the survivor of them, certain grain, &c., produced on a certain farm. Andrew Daniel died on June 1, 1841, leaving his wife surviving, who died in June, 1851. This suit was brought to recover the value of the grain, &c., which it was alleged the defendant had failed to deliver to his mother. The claim was eventually confined to the articles deliverable between the 1st of January, 1849, and the 17th of June, 1851.</p> <p>When the case was put upon the trial list, the only plea was covenants performed, which was entered on 2d December, 1854. On the 22d of January, 1855, when the jury were about to be qualified, the Court, on motion, permitted to be added the plea of set-off; and during the trial, the further pleas of payment and release were added.</p> <p>On 28th December, 1854, notice was served on defendant’s counsel, requiring, under the 67th rule of Court, an exhibition to the plaintiffs counsel, within twenty days, of any paper or papers relied on as matter of defence. And, further, that if under the pleadings then entered, or under any pleas which may be thereafter added by leave of Court, it was designed to give any special matters, fraud, want of consideration, particular payments, or defalcation in evidence, a specification in writing was required to be furnished within twenty days, in pursuance of the 69th rule of Court.</p> <p>In pursuance of the notice, copies of certain receipts were submitted on 18th January, 1855.</p> <p>On part of the plaintiff testimony was given as to the value of the grain, &c., required by the bond to be furnished, and evidence of a similar character was given on part of defendant.</p> <p>Some receipts of the widow were also given in evidence; after which, on part of the defendant, it was offered to prove certain services and boarding, &c., rendered and furnished by the defendant to the intestate, since the date of the last receipt of the infces-tate, for the purpose of showing, under the plea of set-off, that .nothing was due at her death.</p> <p>This was objected to for want of notice under the rule. On part of the defendant it was contended that the evidence was admissible as the pleadings then existed; and also that the notice was not requisite, as the pleadings stood when the notice of the receipts was furnished. Per Guriam. — We are of the opinion that the plaintiff has a right to call on the defendant for a statement of the matter relied on by way of defence, without regard to the pleadings, which may be altered; and although the defendant may alter his pleas ad libitum, he cannot change his notice of special matter without leave of Court, or travel out of it under any additional pleas. The evidence is rejected. First bill.</p> <p>It was then proposed to show what was said by the plaintiff’s intestate at the time the receipts were given and the bond handed over to the defendant, viz., that she wanted no more settlements under that bond. This was objected to, because no notice was given that the defendant relied upon a cancellation of the bond, or any other special matter by way of defence.</p> <p>Per Guriam. — The party relies not on direct performance, but an offer to show that the amount was forgiven and not to be performed, of which notice should have been given. No notice of this matter having been given as assigned, the evidence must be rejected. Second bill.</p> <p>With leave of Court, was then added the plea of payment and release ; and after they were added, the evidence before rejected was again offered; and being objected to for want of notice, was rejected. Third bill.</p> <p>Verdict for plaintiff for $>475.</p> <p>Error was assigned to the rejection of the evidence stated in the first bill, when offered under the plea of set-off. Second, in rejecting the evidence that the bond was given up to the defendant, and that he was released from further claim, as stated in the second bill; and third, in rejecting the same evidence after the pleas of payment and release were added.</p> <p>For a specification of the 69th rule of Court, see the opinion in this case.</p> <p>Under the Act of 1806, the defendant had the right to alter his pleadings, and the Court has no right to make a rule to prohibit it: 8 Ser. B. 258 ; 8 Id. 836. Under the plea of covenants performed, the evidence of set-off or release was inadmissible: 2 W. O. Q. Hep. 456; 1 Ser. N. 25; 8 Barr 270; 8 Leg. Int. 238, Kates v. Dougherty. The alteration of the pleas was therefore indispensable to the de-fence. The rule in question, if strictly construed, may lead tc injustice, and should not interfere with the operation of the Act of 1806: 10 Harris 51.</p> <p>If notice had been given the evidence rejected would have been admissible under the plea of covenants performed, the bond being for the performance of conditions : 15 Ser. B. 10T; 4 Balias 439; 2 Yeates 108; 2 W. O. O. B. 456; 6 Watts 207; 5 Barr 189. The plea of covenants performed, though, strictly speaking, not the general issue, is in the nature of the general issue : 2 Trou. §■ Maly 26. Notice is necessary under such a plea: 4 W. § Ser. 534.</p> <p>The evidence offered was not a set-off, but an equitable defence to the action under the plea of covenants performed, and was not admissible without notice: 10 Ser. B. 142; 16 Id. 28 ; 4 Balias 439. It was decided in Johnson v. Kerr, 1 Ser. B. 25, that in an action of covenant,'a release could not be given in evidence without being pleaded ; but the release in that case was a technical release; whilst the evidence proposed in this case was a verbal forgiveness of the claim. In the case of Martin v. Ilammon, 8 Barr 270, cited, the decision is that the plea of covenants performed is not equivalent to the plea of payment, but admits the foundation of the suit; and that the usual mode of putting the plaintiff to proof of performance is by the addition of ahsque hoc, &e., to the plea of covenants performed. In Kates v. Dougherty, it was decided that under that plea, with.notice, the defendant may show a failure of consideration.</p> <p>The defendant must specify when required in cases where the rule of Court is applicable: 3 Yeates 6; 4 Yeates 561; 14 Ser. B. 176. A defendant is precluded from supplying the deficiency in his notice of special matter by embodying it in a special plea: 6 Barr 147, McCay v. Burr. Also cited 5 Watts 275 ; 2 Wh. 95; 2 Barr 88 : “ it is better to have no rule than to depart from it on slight or frivolous pretexts.” A notice of special matter must be given under a rule of Court, although an affidavit of defence has been filed, setting it out in substance: 5 Whar. 366, Sullivan v. Johns.</p>

<p>ERROR to tbe Common Pleas of Lancaster county.</p> <p>This was an action of trespass to Angnst Term, 1853, by Frederick Schumacher v. Elias Eby, sheriff of Lancaster county, for seizing and selling thirty-two hogsheads of tobacco.</p> <p>The plaintiff was a merchant in the city of Baltimore, engaged in the tobacco trade. On the 14th of May, 1852, John Hiett, then of McConnellsville, Ohio, received from him his acceptances of Hiett’s drafts to the amount of nearly $8000, under an arrangement set forth in the receipt then taken by him from Hiett, as follows:</p> <p>“ Received of' F. Schumacher his acceptances on my drafts of the following amounts and tenor, as advances made by him upon four hundred hogsheads tobacco, part of which is now on the way, and the balance to be packed at McConnellsville and Chesterfield, Ohio, during this current year; and the same to be forwarded to address of said F. Schumacher as fast as circumstances will permit. The advances referred to cover all the tobacco I may pack this season at McConnellsville or elsewhere.”</p> <p>(Then followed a list of drafts amounting to near 8000 dollars.) It was signed, “John Hiett, Baltimore, May 14th, 1852.”</p> <p>All of the drafts referred to were paid by the plaintiff, and in pursuance of the arrangement Hiett afterwards consigned a quantity of tobacco to the plaintiff: but as it did not come forward as rapidly as was desired, the plaintiff proceeded to McConnellsville; and on the 23d of August, 1852, purchased from Hiett the whole of his tobacco, taking from him a bill of sale of which the following is a copy:</p> <p>“ McConnellsville, August 23, 1852.</p> <p>“ I have sold to Frederick Schumacher, of Baltimore, this day, all the tobacco that I have on hand, a part of which is packed, and a part unpacked, some at Chesterfield and some at McCon-nellsville, and some in transit, estimated at 49,194 lbs. at 4 cts., $1967.76; received pay.</p> <p>“JOHN Hiett.”</p> <p>The plaintiff reduced into actual possession tbe whole of this tobacco, except 36 hogsheads then in transit, 32 of which were the subject of the controversy. These had been two days before shipped by Hiett on board the steamboat Aid, bound for Pittsburgh. They were all marked “ John Hiett, care of Frederick Schumacher, Baltimore, Maryland,” and were consigned to William H. Johnston at Pittsburgh, to be'by him forwarded to Schumacher, at Baltimore, and bills of lading taken, deliverable at Pittsburgh to William H. Johnston, or assigns.</p> <p>One of these bills of lading was sent to Johnston at Pittsburgh. Hiett said in his testimony, as to the bills of lading, “ I cannot remember distinctly what was done with them; I had one, it was left in care of J. P. Wharton, but was afterwards lost or destroyed by him, and I cannot now. find it. My best recollection is that one was also given to the plaintiff, Mr. Schumacher, or sent to him in the course of business.”</p> <p>The tobacco arrived in Pittsburgh on or about the 26th of- August, 1852, and was received by Johnston, and delivered to Clark & Thaw, forwarding and transportation merchants. In the receipt or bill of lading signed by them, the tobacco was to be delivered “to Frederick Schumacher,” at their warehouse in Baltimore.</p> <p>The marks on the hogsheads were, as stated, John Hiett, care Frederick Schumacher.</p> <p>One of the bills of lading was sent by Johnston to Schumacher by mail, and it was testified that it was received by the latter on the 29th of August. The tobacco was transported by the Pennsylvania canals and railroad until its arrival at Columbia, where it was, on the éth of September, 1852, attached and seized by the defendant as the property of John Hiett, by virtue of a foreign attachment, issued at the suit of Bagley, Woodward & Co. This suit was brought to recover the value of the tobacco thus attached and seized.</p> <p>On part of the plaintiff two points were submitted</p> <p>1. A sale of personal property in the hands of a bailee, is good against a subsequent attaching creditor without actual delivery. 2. If the jury believe from the evidence that at the time of the sale of the tobacco by Hiett to the plaintiff, it was in transit to Baltimore, to be there delivered to plaintiff, the sale vested the absolute property in plaintiff, the subsequent seizure by the sheriff was illegal, and the plaintiff is entitled to recover in this suit the value of the tobacco at the time of the seizure, with interest.</p> <p>Hayes, J., in his charge, observed, that there was no endorsement to Schumacher of the bills of lading — they continued as originally drawn, showing the property to be in Hiett. Had the bill of lading been endorsed to Schumacher, this symbolical delivery would have completed the sale; but he charged that for want of delivery, actual or constructive, the sale set up by the plaintiff could not be maintained.</p> <p>In answer to a point on part of defendant, be charged that the question was one of legal fraud for the consideration of the Court exclusively, and that the sale was void as against creditors.</p> <p>Error was assigned to the said instructions.</p> <p>The sale of the tobacco to the plaintiff whilst in transit was not void for want of an endorsement by Hiett of the bill of lading from McOonnellsville, Ohio, to Pittsburgh. The rule requiring possession of personal property in order to vest title, is not applicable where the vendor is not in possession of the property at the time of the sale; but a sale of it in the hands of a bailee is good: 7 Barr 89, Linton v. Butz; Story on Bailments 282; so of a ship at sea: 8 Taunt. 177. The endorsement of the bill of lading was not essential. The principal office of a bill of lading is to afford evidence of the contract of delivery by the transporter. As ancillary to that, it is evidence of the right of possession in the person to whom the goods are by its terms deliverable. It is not a negotiable instrument, nor does the assignment of it necessarily import a transfer of the property in the goods embraced in it. See Lord Loughbohou&h’s opinion in Lickbarrow v. Mason, 1 JET. Black. 357.</p> <p>In sea vessels bound for foreign ports, bills of lading are usually taken deliverable to the order of the shipper or his assigns : in such case the owner endorses the bills to his consignee: but a different practice prevails on our canals and western waters, where the name of the consignee at the port of delivery is inserted as the person to whom the goods are to be delivered. In such case no other person than the consignee can endorse the bills. But even the endorsement of a consignee who is the owner is not necessary to a valid transfer of the goods. Per Gibbs, J., in Meyer v. Sharpe, 1 JEng. Oom. L. B,ep. 24; also Blackburn on Sales 275, 295. In this case the bill of lading was deliverable to Johnston, or assigns, and no other than he could endorse it. Cited 2 Gamp. 36. "When the goods were delivered to Johnston at Pittsburgh, the bill of lading which he received had performed its office; and when the receipt or bill of lading received by him was sent to and received by Schumacher, the latter had all the evidence of ownership, and the right of possession.</p> <p>But this would have been the case if there had been no bill of sale or assignment of the goods. By virtue of his advances he had a property in the tobacco the instant it was consigned to him, and delivered to the transporters at Pittsburgh, who became his agents: 9 JEng. Oom. Law 300, Anderson v. Clark; Abbott on Shipping 333; 12 Barb. 310, Dowes v. Cobb. The rights of the parties are to be determined as they existed at the time of attachment: 6 Wharton 53, Hoofsmith v. Cope.</p> <p>The tobacco was shipped to Hiett’s own order, and the bills of lading were not assigned or endorsed by him. As a general rule actual delivery is essential to the validity of a sale of personal property. But when goods sold are at sea, actual delivery being impossible, the law is content with constructive delivery, which is accomplished by an endorsement or assignment of the bill of lading. A bill of lading is like a bill of exchange, and the pro]Derty it refers to passes by endorsement of it, but not hy delivery without endorsement: 1 0. $ P. 53, (12 B. O. L.); 7 M. $ Ghr. 678, (49 B. O. L.); 7 Ad. # El. 29, (34 O. L.); 5 Whar. 205, Bell v. Moss. In this case the bill of lading was sent to the plaintiff as consignee, or factor, and not as owner, and a bill of lading sent to one as consignee conveys no legal title to the property, though the consignor be indebted to the consignee: 2 W. O. O. B. 403 ; Id. 287 ; 7 M. f Cfr. 678; 7 Ad. ^ Ell. 29; 1 0. ‡ P. 53; 3 B. $ 0. 423.</p> <p>By the Act of 14th April, 1834, it is enacted, 1. Whenever any person intrusted with merchandise and having authority t© sell or consign the same, shall ship or otherwise transmit it to any other person, the latter shall have a lien for money advanced or negotiable security given on the faith of the consignment to the person for whose use or in whose name -the merchandise was transmitted, &c.</p>