Volume 25 — Pennsylvania State Reports

<p>Error to the Court of Oyer and Terminer and Quarter Sessions of Philadelphia county.</p> <p>On tbe 27th October, 1854, in the Court of Oyer and Terminer for the city and county of -Philadelphia, the plaintiff in error was found guilty of a rape upon Narcissa Emmeline Mudge. A new trial was refused 24th November, 1854, and on the 28th November the defendant was sentenced, as stated below. On the 22d March, 1855, he applied to this Court for a writ of error, which was allowed on special cause shown.</p> <p>In the trial of the case below the record states that the jury were sworn to “ try the guilt or innocence of the defendant of the charge whereof he stands indicted;” and upon his conviction the Court adjudged him to “undergo imprisonment at hard labour in the Philadelphia county prison for the term of four years and six calendar months; that he be fed and clothed and otherwise treated as the law directs.”</p> <p>The exceptions taken were, 1st, to the arraignment of the prisoner, which does not appear to have been pressed or considered, by the Court.</p> <p>2d. Because it appears by the record that the jury by whom the plaintiff in error was tried were sworn or affirmed “ to try the guilt or innocence of the defendant," instead of well and truly to try the “issue joined between the Commonwealth of Pennsylvania and the prisoner at the bar, and a true verdict give according to the evidence.”</p> <p>3d. That the sentence was illegal: 1st, because it condemned the defendant to hard labour, which the law does not authorize. 2d. Because it did not condemn him to solitary imprisonment at labour, which the law authorized and required if the conviction was legal.</p> <p>4th. General errors.</p>

<p>An officer has authority to act until notice of the revocation of his commission, and this whether the revocation be express or implied by the appointment of another person t'o the same office.</p> <p>But when an officer holds for a special term, “ if he- shall so long behave himself well,” there is no implied misbehaviour, nor implied removal, arising, from that cause, by the appointment of another to fill the same office.</p> <p>When by the fair construction of the commission of an officer it is" clear that it was intended to give him the right to the office for three years, if he so long behaved himself well, the failure to give the bond and security required by law for the faithful performance of his duties, previous to his entering upon their discharge, and he enters upon, and otherwise discharges tlie duties without objection; there is nothing in the omission to give the bond' to deprive him of the office; and he may file a bond when objection is made to the omission.</p> <p>But such officer before giving the security required by law, is not the officer dejure — but merely die facto — and when the law prohibits the performance of the duties, before the security is given, it will not aid him in compelling payment for services thus rendered against its direction".</p>

Philip Compiler died in November, 1853, leaving a widow, and real and personal estate which he disposed of by his will, dated 2d November, 1853, admitted to probate 18th November, 1853. By his will he gave to his wife, the plaintiff, “ to the amount of $300, to be taken by her at the appraisement or valuation of his estate” directed to be made by the will.

<p>The ejectment in this ease was brought in the Common Pleas of Bedford county, to November Term, 1854.</p> <p>Verdict for plaintiff November 25, 1854.</p> <p>The facts are somewhat complicated. The title to the land in dispute was in Ann Lehman. On the 7th of April, 1818, Ann Lehman and Abraham Lehman entered into articles of agreement for the sale of the land, together with another tract, with Philip Moser and John Exline. In consideration whereof, the said Moser and Exline bound themselves, jointly, to pay to the said Ann and Abraham the sum of f1000.</p> <p>Upon these articles of agreement an action of covenant was brought to No. 84 of August Term, 1832, in which Ann and Abraham Lehman were plaintiffs, and Philip Moser and John Exline were defendants. Philip Moser died in 1835, and a judgment was obtained against John Exline, surviving covenantor, on the 10th of November, 1842, for $854.23, the balance of the purchase-money with interest due upon said agreement. To No. 197 of November Term, 1842, a.fi.fa. was issued and the land in dispute levied upon, and a vend. ex. was issued to No. 72 January Term, 1843, by virtue of which the said land was sold to S. M. Barclay for $100, who, on the 13th of May, 1843, conveyed the same to the defendant, Peter Arnold, for the consideration of $500.</p> <p>S. M. Barclay died on the 3d of January, 1852, and letters of administration, with the will annexed, were issued to Job Mann and J. E. Barclay.</p> <p>Proceedings were commenced in the Orphans’ Court by the heirs of Ann Lehman, deceased, under the direction of John Cessna, the plaintiff below, acting as their attorney, and carried on by him as administrator de bonis non, with the will-annexed, of the said Ann Lehman against-the representatives of S. M. Barclay, which resulted in making the estate of Barclay responsible to the heirs of Ann Lehman for'the value of the land purchased by him at the. sheriff’s sale, being about $1100-; which proceedings were affirmed in this Court at last May Term:</p> <p>In 1853, and before the meeting-of the auditors in said proceedings, the plaintiff had a- conversation- with William M. Hall, who had been employed by Moser’s-heirs to look after their-interests, in which said plaintiff said that'he also had been spoken to by some of the Mosers. Said plaintiff then employed Mr. Hall to assist in the prosecution of the claim of- the heirs of Ann Lehman, and induced a delay of the assertion of-the claim of the Mosers for the purpose of betterdnsuring a recovery-of the claim of Ann Lehman’s heirs’against the estate of Barclay.</p> <p>The plaintiff claims the land under and: by' virtue of conveyances dated in 1854, from the-heirs-of Philip Moser, deceased.</p> <p>On the trial of the cause, it was proved that Ann Lehman admitted to the witness that the land'in-dispute had been paid for by Philip Moser.</p> <p>Moser went into possession in 1818, and. continued'in-possession of the tract in dispute until his death in- 1835, excepting three years, during which time it was leased' by him to his brother. After his death, his widow and children continued in possession till 1843, when S. M. Barclay obtained the possession under' his purchase at sheriff’s sale, and sold to defendant, Arnold, who moved on the land and continues• thereon.</p> <p>Abraham Miller, a witness Tor plaintiff, proved the possession of Moser of the tract in controversy, and after his death by his widow and children from 1818 down to the period possession was taken by Barclay.</p> <p>Mary Exline, the widow of John Exline, proved that John Ex-line never lived on the tract; that she remembered well when Moser bought it; that her husband had bailed Moser when he bought, and that Moser had paid for the farm, and not Exline; that her husband had often told her this; that Moser went on to the land after he bought. Before he bought, he lived with her and her husband, and was their son-in-law; that she had seen Moser pay money on the land, but could not say how much.</p> <p>Defendant excepted to the testimony of the above witnesses.</p> <p>There was also evidence that Abraham Lehman, the son of Ann Lehman, and John Exline, the father-in-law of Moser, signed the agreement as sureties for the faithful performance of their principals.</p> <p>On this statement of facts, the Court below charged th.e jury: — •</p> <p>“ This is a controversy between the purchasers of the interests of Moser and Exline, as to what title they acquired by their respective purchases. This title as between Ann and Abraham Lehman and Moser and Exline remained unfinished; no deed ever passed, and by the conveyance to the plaintiff by the heirs of Moser, he took no better position in the contract than was held by the heirs through their father; and by the sheriff’s sale Barclay became vested with the rights of John Exline. Neither can claim to be an innocent purchaser without notice. If they choose to buy without inquiry, they took the risk of the title, and if the jury believe that Philip Moser was the purchaser of this land from Ann Lehman — John Exline signing the agreement only as the surety of his son-in-law — and that Philip Moser paid the purchase-money to Ann Lehman in his lifetime, then the plaintiff must recover.”</p> <p>The counsel for plaintiff in error (defendant below) submitted the following points:—</p> <p>1. That the action of covenant against Moser and Exline was well brought, they being joint covenantors, and that Moser having died before judgment, the further prosecution of the action could be maintained only against the surviving defendant.</p> <p>2. That a sale of the land under a judgment, against the surviving covenantor, obtained in an action for the unpaid purchase-money, upon the articles of agreement, settles definitely the rights of all parties connected with, or having an interest in, the purchase, and passes the title of both covenantors, Moser and Exline, to the vendee of the sheriff.</p> <p>3. That the interest of the plaintiff in this case is, at best, an equitable interest, and he cannot ask the Court to enforce his equity until he has done what equity requires at his hands, and therefore he cannot recover without having first paid or tendered to pay the balance of the purchase-money due under the agreement.</p> <p>4. That if the jury believe that the defendant in this case- had no notice of the claim, now set up by the plaintiff, under the Mo1 sers, and that there is nothing in the case that would put him upon such inquiry as would necessarily lead to a knowledge of that claim, he is an innocent purchaser, without notice, and is protected against the latent title, under which the plaintiff seeks to recover.</p> <p>5. That the purchaser at sheriff’s sale became the owner of Ex-line’s interest in the land in dispute, and, as by the terms of the agreement Exline was a joint owner with Moser, the defendant, as alienee of the sheriff’s vendee, became therefore entitled to at least one-half of the land — if the Court should be of opinion that he is not entitled to the whole — in the absence of full proof showing knowledge of the want of title in Exline.</p> <p>6. That if the jury believe that the plaintiff in this case, being the attorney of the heirs of Ann Lehman, and administrator de bonis non of her estate, recovered, with a full knowledge that said Ann Lehman had been paid and satisfied, from the estate of Samuel M. Barclay, who was executor of said Ann Lehman and vendee of the sheriff of the land in dispute, the value of said land', and induced a delay of the assertion of the claim of the Mosers, for the purpose of better insuring a recovery of the claim of Ann Lehman’s heirs against the estate of Barclay, equity will not permit him to recover as vendee of the Mosers against the defendant, an innocent purchaser, without notice of the title thus purposely concealed by the plaintiff.</p> <p>To which the Court answered as follows:—</p> <p>1st, 2d, and 5th. We have already said that the sale to Barclay upon the judgment obtained on the articles of agreement against Exline passed no greater interest to the sheriff’s vendee than was* in Exline at that time, and if the jury believe, from the evidence, that Exline was a principal — prima facie he was one — then the sale passed the one-half of the land to Barclay; but if Exline was the security only — it is not alleged that he paid any part of the consideration — and the purchase-money was paid by Moser to Ann Lehman in his lifetime, then the sale passed no title to Barclay.</p> <p>3d. If the jury believe that Moser paid the purchase-money, then there was no necessity for a tender.</p> <p>4th. Answered in the charge.</p> <p>6th. Answered in the negative.</p> <p>To this opinion and charge of the Court, the defendant excepts, and prays that a hill may be sealed; which is accordingly now done.</p> <p>The following errors were assigned in'this Court: 1st. The Court erred in admitting the evidence of Mary Exline and Abraham Miller. 2d. The Court erred in their answer to the 1st, 2d, and 5th points of the defendant below. 3d. Also, in their answer ■to the 3d point. 4th. Also, in answer to the 4th point. 5th. Also, in answer to the 6th point.</p>

<p>Error to the Common Pleas of Bedford county.</p> <p>This was an ejectment for sixty acres of land. The facts appear to be as follows: — John Whitehead, in March, 1881, made an improvement on the land, and on the 26th November, 1834, had it surveyed, and the lines marked, embracing 60 acres and 148 perches. The improvement was made and the possession continued in strict accordance with the Act of Assembly, until between the 1st and 15th December, 1847. This is not disputed.</p> <p>By deeds duly executed, Whitehead’s title to the land became vested in the plaintiff, to whom a warrant was granted on the 2d September, 1853, upon which a survey was made the 27th of the same month, against the acceptance of which a caveat was entered by the defendant.</p> <p>The defendant claimed under a warrant issued on the 14th February, 1853; upon which a survey was made on the 7th March, 1853, which was accepted by the board of property.</p> <p>J. W. Wesley, who was the last actual resident upon the land under the plaintiff, left it in December, 1847, when it was leased to William Lowry and others, by those under whom the plaintiff in error claims, who have paid the taxes up to this time. Neither Lowry nor the other lessees ever resided on the land, but on adjoining tracts; but set up a claim of possession, sleeping in the house a few nights, using the house, which was in bad repair, to keep hay in, and for the purpose, as Lowry testified, of keeping other people out.</p> <p>Points submitted by the plaintiff in error:—</p> <p>1. That the law raises no presumption of the abandonment of an improvement, from the relinquishment of the possession, for a period of time less than seven years.</p> <p>2. That, if the jury believe that the plaintiff and those under whom he claims, either by themselves or their tenants, occupied the land in dispute and the house thereon erected, having designated the boundaries by an actual survey, with the intention to make it a place of abode and supporting a family, and that the occasional absence therefrom was always attended with the intention to return, the said plaintiff had a right by improvement, and that his perfection of that right, by a warrant and survey, entitles him to recover in this action.</p> <p>Errors assigned: 1st. The Court erred in not answering the points submitted by the plainfiff in error. 2d. The Court erred in charging the jury as follows, viz.: “ The question for the jury to determine is, was this improvement abandoned after December, 1847 ? If it was, the plaintiff cannot recover. The plaintiff says the improvement was kept up by Evans and Lowry, tenants of the then owners, and the payment of taxes. Evans seems to have had a lease for one year. Lowry for four years. Both were men of families, and had their homes with their families as ■well as their property elsewhere than on the land. Neither of them ever resided upon the land, and Lowry says that by the terms of his lease he was not 'required to reside on the land; that he had a few bedclothes and articles of property in the house, and that he slept there a few nights, and this was done to prevent other persons from going upon the land. If these facts are believed by the jury, then this was not such a continued residence settlement upon the land as the law requires, and the defendant was right in treating it as abandoned, and he is entitled to your verdict.”</p>

<p>A holder of land by warrant and survey, may, with the sanction of the Board of Property, contract the lines of his survey and throw out part of his land, so that he do not prejudice other interests; and the part excluded relapses into the general mass of public lands, and may again be appropriated by warrant and survey, as vacant land. ,</p> <p>Where the part thrown out lies within the lines of another survey, it does not become vacant land, but relieves that survey from the consequences of an interference.</p> <p>An older survey cannot be changed, contracted, or enlarged by the adjustment of the lines of a junior survey.</p> <p>Whether a line was actually run upon the ground, or left by the surveyor as an open line, was a question of fact for the jury, and their finding will not be reviewed in this Court.</p>

<p>Error to Northumberland county.</p> <p>The land for which this ejectment was brought, was surveyed on' a warrant granted to John Kreighbaum and Henry Reed, June 15, 1804, and by several intermediate conveyances became vested, on the 25th September, 1829, in Joseph Lyon, under whom both parties claimed. *</p> <p>Phillips, the plaintiff, obtained judgment against Lyon on the 23d December, 1837, on which the land was levied and sold by the sheriff, and bought by the plaintiff, to whom the sheriff conveyed it August 2, 1841. The plaintiff entered upon the land, and remained in possession until 1846.</p> <p>The defendants then showed that, on the 13th July, 1831, Lyon and his wife conveyed the land to Burd Patterson, “ in trust that he should, in two years from the date of the said deed, sell by public or private sale the said land, and with the proceeds thereof pay to the Miners’ Bank of Pottsville all moneys due by him to the said bank in full, if sufficient, and the balance, if any, remain to him, the said Lyon.”</p> <p>Patterson did not sell within the two years; but, with Lyon’s consent, and under the power in the deed of trust, exposed the said land to public sale on the 27th May, 1847, and by his deed of 30th November, 1847, conveyed the same to the Miners’ Bank, under whom defendants claim.</p> <p>The plaintiff then adduced evidence to show that the taxes upon the tract in question for the years 1832 to 1835, remaining unpaid, it was sold by the treasurer of the county in 1836 to Hugh Bellas, Esq., who testified that he held the deed from the treasurer, dated the 30th July, 1836 ; that he had paid the treasurer the taxes and costs, $>10.17; that he informed Joseph Lyon of the purchase, and what he had paid, and he promised to repay Mr. Bellas (as appears by a letter exhibited by Mr. Bellas, dated Philadelphia, June 28, 1836), and added: “I am satisfied he repaid me what I had paid, as above stated. I was agent and attorney for Joseph Lyon in 1836, and for a number of years before and afterwards.”</p> <p>The defendants gave in evidence a deed from Hugh Bellas and wife to the Miners’ Bank, Burd Patterson, Joseph Lyon, and H. Holkins, dated June 30, 1838, for two undivided third parts of eleven tracts, among them the tract in controversy — consideration $1 — to have and to hold their respective interests therein.</p> <p>And John Shippen, president of the Miners’ Bank, testified “ that, from the time the trust deed was made to Patterson, the Miners’ Bank paid all the taxes on the tract in dispute;” and gave in. evidence a draft, dated 21st June, 1836, drawn by Charles G-. Donnel on John Shippen, president of the Miners’ Bank, in favour of H. Bellas, for $52.02, “for land-taxes paid by him for you and J. Lyon;” and testified that the amount was paid by the bank on its own account, and that the $10.17 paid by Mr. Bellas on the tract in dispute, was included in this draft, and paid by the bank.</p> <p>In the course of the trial below, the defendants gave evidence of title out of the Commonwealth, granted by warrant to Benjamin F. Young, in 1793, accompanied by proof that the survey made and returned upon it, included the Reed and Kreighbaum survey, and traced the - title through divers intermediate conveyances to the defendants; but in view of the preceding facts, the Court deemed this evidence immaterial.</p> <p>The Court charged the jury on the material facts, in substance, that the purchase of the tract in controversy by Mr. Bellas for taxes, was a purchase in trust for Joseph Lyon; that the plaintiff’s purchase'at sheriff’s sale of Lyon’s interest on the 2d-August, 1841, and his deed of 6th January, 1842, which were had upon his judgment against Lyon, would only be a lien upon what interest Lyon had in the tract at the date of the judgment, and the purchaser at sheriff’s sale would take no greater interest. The interest Lyon then held was the title to the tract from the Commonwealth, and this was bound by plaintiff’s judgment, if the title had not been divested by Lyon’s deed to Patterson of July 13, 1831, in trust (as above stated). This deed limited the power of Patterson to sell in execution of the trust to two years, and he not having executed the power for near fifteen years, the land would he subject to levy and sale by the creditors of Lyon. But Mr. Bellas holding as trustee for Lyon, or Lyon redeeming the tax title within two years, the title never was divested by the tax sale.</p> <p>Verdict for defendant.</p>

<p>Where the purchaser of goods pays for them with the note of a third person, given to him for a real consideration, and passes the note to the vendor by endorsement, the vendor can only recover on the note; and to enable him to recover against the endorser he must show that the note was regularly dishonoured.</p> <p>But where the note was made for the mere accommodation of the purchaser, and to get him a credit, and he endorses it to the vendor of goods, the maker of the note stands in the relation of surety for the endorser; and the latter, in an action against him on the endorsement, cannot set up by way of defence that the vendor held the note and never demanded payment of the maker.</p> <p>Where the vendee of goods was sued on an accommodation note made for his credit, and endorsed by him over to the vendor, and the case was arbitrated, appealed from, tried in court and reversed on error; on the second trial below the plaintiff amended his declaration by joining a new count for goods sold and delivered, no exception being taken, or anything appearing in the record to show objection on the part of the defendant. Held, that after a defendant goes to trial and takes the chance of a verdict on a declaration thus amended, it is too late to object.</p>

Error, to the Common Pleas of Washington county. This was an application, by the sureties upon the bond given to the commissioners of Washington county by G. Kinnan, who was collector of state and county taxes in Peters township for the year 1849, to be relieved from their said obligation, on the ground of misrepresentation and fraud in procuring the same. Kinnan had been appointed collector for Peters township for 1848, and was reappointed for 1849.

<p>A sale by tbe sheriff on a judgment obtained against a vendor of land, after sale of the land by articles of agreement, passes only the estate left in the debtor after the contract of sale, and conveys to the vendee a right to the purchase-money unpaid — but he takes the estate subject to the payment of liens against the vendor prior to the contract of sale.</p> <p>A sale on such subsequent judgment cannot discharge the lien of those prior to the contract of sale.</p>

<p>An action upon a recognisance of bail for stay of execution may be referred to arbitrators under the compulsory rule.</p>

<p>Error to the Common Pleas of McKean county.</p> <p>This suit was originally brought by Hamilton township against the defendant, before a justice of the peace, for the recovery of a bond or contract signed by defendant (and a surety not named), dated 25th June, 1850. The defendant had contracted to make about 200 rods of a new road for plaintiffs, at 72 cents per rod. No money was to be paid until the job was completed. The road commissioners, however, agreed to advance to the defendant $40 of funds they had on hand, and required him to give the above bond with surety, which was conditioned for making the road according to the contract: in that event the $40 to be deducted from the amount to be paid him, otherwise to remain in full force and virtue. Defendant did some $50 worth of work on the road, and then finding it more expensive than he expected, abandoned and never completed it. And this suit was brought to recover the $40 thus advanced.</p> <p>The bond was made payable to Libby, McManus, and Stanton, Hoad Commissioners of Hamilton township. And when offered in evidence, the defendant objected to its being read in this suit, brought in the name of Hamilton township as above stated, which was overruled, and the bond was read.</p> <p>The defendant then offered, by way of set-off (under his plea of set-off), to prove that he had done necessary work on one of the public roads of the township at a time when extraordinary floods bad rendered it entirely impassible, for which the township had never paid him, although it had adopted and used the repairs so made by him, which evidence was rejected.' Yerdict for the plaintiff for the whole bond and interest.</p>

Blair brought suit before a justice of the peace against defendant on a due-bill for $52.93, with credits endorsed thereon of $46,. At the hearing, the plaintiff withdrew the suit, and confessed judgment for defendant’s costs, which he paid. • The above suit was brought February 25, 1853, and terminated as above, 4th March, 1853. On the 9th March, 1853, Blair brought another suit on the same , due-bill, for the same balance claimed in the former suit.

This was .an appeal from a justice of the peace. The plaintiff below claimed $10 awarded to him by fence- viewers, for work done in making a partition fence. The declaration was in assumpsit; the plea non assumpsit: verdict for plaintiff, $12.80. The auditors who viewed the fence reported that it would' cost $10 to make a sufficient fence.

Bashline, the plaintiff below, on the 7th February, 1852, obtained judgment against Guthrie; on the 16th February a fi. fa. issued; on the 9th March, 1852, the defendant, Guthrie, paid Bashline, the plaintiff, the debt, interest, and costs, and took his receipt in full, and filed it of record in the case, and satisfaction was entered on the judgment.

This was an action of debt on a bond given by Arabella Patterson, the plaintiff in error and the defendant below, to William Robinson, Jr., for the purchase-money of two lots of ground in Allegheny City. In 1848, the plaintiff below conveyed the lots to the defendant, Arabella Patterson. Eighty dollars were paid in hand, and for the balance, the purchaser,'who was a married woman, gave her own judgment-bond.

The opinion of McOalmont, P. J., of the Court below, contains the facts and the law of the case, and was delivered as follows:— “The 36th section of the Act of 16th June, entitled ‘An Act relating to Reference and Arbitration,’ enacts that ‘If the party by whom a rule of reference shall be entered, his agent or attorney, shall fail to cause a copy of the certified, rule, or of the record containing the names of the arbitrators, and of the time and place of meeting, to be…

This was an ejectment, brought by Humes v. McClenahan, for 21 acres of land, each party claiming under a distinct sheriff’s sale. In May, 1831, Thomas Ford conveyed to his son Charles 121 acres, subject to a reservation of 21 acres during the lives of his parents, and which they occupied until they both died — the last four years ago, when this suit was brought.

<p>Where a note is transferred "by a debtor to a creditor in payment of a debt, with a guarantee that it is good as gold, and will be paid when due, and it proves worthless, the contract is broken as soon as made, and the creditor is under no obligation to pursue the note.</p> <p>To warrant a debt as good as gold and silver, is to warrant that it is founded on a legal consideration, that the debtor is of competent ability, and that the -debt will be paid on demand.</p> <p>Where a debtor had transferred a note to his creditor, which he guarantied to be good, payment of which was refused by the maker at maturity, and the creditor demanded payment of the guarantor, who asked him to wait the event of a suit then pending, and he would be sure to be paid, and he waited accordingly: Held, that the creditor could recover against the debtor on the guarantee without previous resort to the maker of the note.</p>

<p>If an executor includes in the inventory his own note to the testator, it does not preclude him from making defence to it; nor is this such an acknowledgment of the debt as takes it out of the Statute of Limitations.</p>

This action was brought in 1848, by McWha, the plaintiff below, to recover of the defendant damages for alleged negligence and unskilful treatment -as a surgeon of the broken leg of the plaintiff.

This was an action of assumpsit, brought for use and occupation by the defendant in error, who was the guardian of the minor children and heirs of Frederick Wenk, deceased. .The defendant pleaded non assumpsit. Verdict for plaintiff. Frederick Wenk died intdhtate about the 1st of April, 1849, seised of the premises; ITaslage, the plaintiff in error, then being in possession as his tenant.

This was an ejectment for a lot in the borough of Saltsburg. In March, 1847, Butler Myers contracted with William P. Gregg for the purchase of the lot in question for the consideration of $100, for which he paid in two notes, on Thompson McCrea, to that amount. Gregg gave a receipt in full for the consideration, stipulating to make to said Butler Myers a warranty deed for the same.

<p>After acknowledgment of a sheriff’s deed in open Court, the title of the sheriff’s vendee cannot be affected by mere irregularities however gross.</p> <p>When both parties claim by sheriff’s sale, made under several executions against the same party, the oldest sale passes the title when there is no evidence of fraud in the case.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was a scire facias guare executionem non upon a judgment, which was entered against defendants, March 6,1855, for $255.64. On the 28th June, 1855, the defendants obtained a “rule to show cause why the judgment should not be opened, and the defendants let into a defence.” This rule was discharged by the Court on the 7th July, when a statement of facts was agreed to by the parties, and submitted to the Court, with a stipulation “ that either party should have the right to take a writ of error to the judgment of this Court.”</p> <p>The only question considered by this Court was, whether the judgment of the District Court on an application to open a judgment by confession is the subject of review here ?</p>

This was an ejectment brought by Beck against Smith for 100 acres of land in the purchase of 1784. Both parties claimed by actual settlement. The land in dispute is part of a larger tract settled by one Moorhead in 1833, who excluded it from his claim by an official survey made that year; after this, Kennedy commenced a settlement on the land, but did not pursue it.

<p>The devise to testator’s wife was as follows: “ This is to be understood, that my wife is to have all the benefit of the farm during her life, and the disposal of one-half at her pleasure, and the proceeds of the other half to be divided among my living children: but should my wife choose, she may have the farm sold, and the products used as before mentioned.” Held, that by this devise the widow took a fee in one half of the farm, together with a power over the whole farm to sell it, and appropriate one-half of the proceeds to herself absolutely, the other half to herself for life, and after her death to her children.</p>

<p>Error, to the Common Pleas of Indiana county.</p> <p>The facts of this case show that the township of Brush Valley was created in June, 1835, out of a portion of Wheatfield township. Before the creation of Brush Valley township, the original township of Wheatfield was indebted to various persons for balances due to them as supervisors of said township; and among others to John Carney, the sum of $231.58, as shown by settlement of 15th April, 1824. Carney afterwards brought suit against Wheat-field township to Sept. Term, 1839; the jury brought in a special verdict, upon which judgment was entered in Carney’s favour for $350, which was paid by Wheatfield township on the 30th June, 1847. This suit was brought to March Term, 1852, by Wheat-field township against Brush Valley township, to recover contribution for the amount paid to, Carney’s judgment, as above stated, by the former. Defendant pleaded non assumpsit and the Statute of Limitations.</p> <p>The Court instructed the jury that the Statute of Limitations was a bar to the recovery of the plaintiffs — to which they excepted.</p>

This was an action on an agreement under seal, in which “ Edmund Evans of Clay Furnace, agrees to weigh off and deliver, on the bank of tha Allegheny river at said furnace to the order of Myers & Hunter 40 tons of pig metal, at $20 per ton. The breach alleged was, that the defendant had not delivered the said 40 tons, and had delivered but 344 tons.

... Tnis was an appeal by Johnston and Sutton from a decree of 'the Court of Common Pleas of Lawrence county, in the distribution of the proceeds of the real estate of Alphonso Keys. Keys owned certain real estate encumbered by divers judgments, all of which were obtained subsequent to the Act of 9th April, 1849 — ■ the Exemption Act. On the 23d April, 1852, defendant gave to Johnston and Sutton a judgment for $25, waiving the right of exemption in favour of plaintiffs.

<p>Error to the District Gourt of Allegheny county.</p>

The question decided in this case grew out of a proceeding in' foreign attachment — in which defendant pleaded the statute of limitations. The plaintiff alleged that he loaned the defendant, in 1837 or 1838, $ 100 ; and proved, that, in 1841, at his request, A. Leimer (the witness) called upon defendant, and requested payment of the demand of plaintiff — that defendant said he could not raise the cash then, and asked for time, and said he would pay with 5 per cent, interest.

On the 6th July, 1855, the plaintiff in error was summarily convicted before a justice of peace, under the 2d section of the Act of 14th April, 1851, relating to the granting of tavern licenses in Allegheny and Clarion counties, of selling malt liquor on the Sabbath day. The case was taken by certiorari to the Common Pleas of Allegheny county, and there affirmed.

<p>Error to the Common Pleas of Allegheny county.</p> <p>The parties in this case agreed upon the following facts, to be considered in the nature of a special verdict:—</p> <p>On the 15th day of May, 1851, the Select and Common Councils of the city of Allegheny passed the following ordinance (which was duly published in one of the public newspapers, published in said city of Allegheny, within fifteen days from and after its passage as aforesaid; the publication thereof, with the time thereof, was duly proved by oath, as required by the charter of said city; and said oath, together with said ordinance, was duly recorded in the office of the recorder of deeds, in and for the county of Allegheny, aforesaid, on the 30th day of May, 1851, in a separate book kept for that purpose, as required by the charter aforesaid), to wit:—</p> <p>“ Sect. 1. Be it ordained and enacted by the Select and Common Councils of the city of Allegheny, and it is hereby enacted by the authority of the same, That the committee on streets be and they are hereby authorized and directed to invite and receive proposals for the grading and paving of Liberty Street, from East Common to East Lane; Liberty Street, from East Lane to Chestnut Street; Federal Street, from the south line of the North Common to Carrol Street; Pitt Alley, from Strawberry Alley to the North Common; Ohio Street, from Webster Street to Duquesne borough — streets within the said city, and to contract therefor, with the lowest and best bidder or bidders, at their discretion.</p> <p>“ Sect. 2. That for the purpose of defraying the costs and expenses of the said improvements, there be and is hereby levied a special tax, to be equally assessed upon the said streets, in proportion to the feet front on them respectively, comprised, and bounding, and abutting as aforesaid.</p> <p>“ Sect. 3. That, as soon as the cost and expenses of the said improvements shall be fully ascertained, it shall be the duty of the street commissioner to assess and apportion the same among the several lot-holders owning property upon the said streets and alleys, according to the rule above indicated, and thereupon to give notice thereof to the owner or owners, or occupants of the said lots, respectively, or to the agent or guardians of such owners, and also to make return of said assessment or appraisement to the mayor of said city.</p> <p>“ Sect. 4. That it shall" be the duty of said mayor, upon the return so made, to cause a duplicate copy thereof to be placed in the hands of the collectors of the proper ward, or wards, or of any of the constables of said city, together with his, the said mayor’s, warrant for the collection of the same; and it shall be the duty of the said collectors or constables, on the receipt of said duplicate and warrant, to collect forthwith the amount of said special tax from the persons charged therewith, and, in case of any default made in the payment thereof, to take such measures for the enforcement of the same as are authorized by law to be employed in regard to any tax or taxes assessed by said city.</p> <p>“ Sect. 5. That so much of any ordinance,- or ordinances, as may conflict with, or be supplied by, the provisions of the foregoing, be and they are hereby repealed.”</p> <p>In pursuance of the foregoing ordinance, Ohio Street was graded and paved from Webster Street to Duquesne borough. (Said Ohio Street being within the corporate limits of said city of Allegheny, and being a street, or public highway, laid out by the state on the laying out of the town of Allegheny, to wit, in 1786.) The cost and expenses of grading and paving Ohio Street, were equally assessed on the feet front bounding and abutting on that street; and according to the assessment so made, there was assessed on the piece of property, described in the above writ of scire facias, the sum of $135.64. Demand of the amount was made on Charles B. Scully, the agent of the defendants (they, the defendants, not residing in the county of Allegheny), and owners of the property described in said writ of scire facias, by S. Tyler, the street commissioner of the city of Allegheny, on the 16th of September, 1852. The amount not being paid, on the 27th of December, 1852,- S. Tyler, the street commissioner aforesaid, filed a statement in the office of the prothonotary of the Court of Common Pleas of Allegheny county, to No. 203 of-December Term, 1852, headed “Ohio Street,” and setting forth, among other things, the names of the owners, viz., the defendants, of the piece of property described in the said writ of scire facias, and, firstly, described in said statement, the amount of the costs and expenses for which the piece of property is liable, and a description of the said piece of property sufficient to identify it, the ward in which it is, and the number of feet it fronts and abuts on said Ohio Street, graded and paved as aforesaid, and the date of the demand1 of the amount the said piece of property is liable, and on whom demand was made — of the truth of which facts the said street commissioner made oath before one of the aldermen of the city of Allegheny, on the 27th of December, 1852, and on the same day filed the statement, with his said«affidavit annexed to said statement, in the office of the prothonotary of the Court of Common Pleas of said county. The said scire facias issuecl December 31, 1852. If the Court should be of opinion, from this state of facts, that the plaintiffs are entitled to recover, then judgment to be entered in their favour for the sum of $135.64, with interest from September 16, 1852, with costs; otherwise judgment for defendants, with costs. The right to a writ of error reserved to the parties, plaintiffs and defendants.</p> <p>The Court entered judgment on the case stated in favour of the plaintiffs. Whereupon the defendant removed the record to this Court, and assigned the entry of said judgment for error.</p>

<p>A party having a legal claim upon another for work done, wagered the amount with his debtor on the event of an approaching election, who gave his note for double the amount of his indebtedness, to be paid to his creditor upon the success of the candidate named. The debtor won the. bet, and the creditor brought assumpsit for his original cause of action. Held, that he was entitled to recover.</p> <p>A bet upon an election, regarded as a contract, is totally void, where there has been no deposit of the thing bet.</p>

This action was brought for the recovery of a promissory note, dated 31st May, 1850, for $728.72, signed by defendant, payable to the order of Bradner & Co., and endorsed, or said to be endorsed, by the payees.

This was a certiorari to remove the proceedings in a ease under the Act of 26th March, 1846, “ to amend the road laws of Erie county, and for other purposes,” which were commenced before a justice of the peace.

Err,or to the Common Pleas- of Warren county. This was an action of trespass quare clausum fregit. The plaintiff showed title to the close in himself, and possession till about three years previously to the commencement of this suit, when he told his son-in-law, Donegan, that he might go on the land and live — that he would help him, and would will it to his wife. This was in the winter, and, in the spring,-the son-in-law moved upon the land.

<p>Error to the Common Pleas of Beaver county.</p> <p>Clarke, Porter, Jones and others, purchased a lot and gave three bonds to Irvine, the vendor, for the purchase-money for $325.33 each, payable August 14th, 1838, ’39, and ’40. In 1843, suit was brought against the obligors, and’ Porter pleaded his discharge under the Bankrupt Act, and a nolle prosequi was entered as to him by the plaintiff on the 4th June, 1844. The suit was twice tried, and ultimately compromised on the 16th November, 1847, by confessing judgment for $333.33; and several of the obligors having, in the mean time, become insolvent, Clarke paid, in 1849, $265.64 of the said judgment. And thi* suit was brought by him to recover contribution from Porter, as co-obligor. To which Porter put in the plea of non assumpsit, and discharge under the Bankrupt Act.</p>

Error, to the District Court of Allegheny county. This was au amicable action of debt on a bond, in which Thomas Holmes is plaintiff, and William M. Shinn defendant. The parties agreed upon a case stated, with liberty to either party to sue out a writ of error. The case stated, comprising copies of many papers and documents, is too voluminous to reprint entire.

On the 18th April, 1853, Truitt & Brothers and the defendant, Muikerheide, voluntarily appeared before a justice of the peace in said county, the plaintiffs by their attorney, A. Kopelin, Esq., and the defendant in person; and judgment was entered by the justice on the confession of the defendant on one claim for $270.90, and on another claim for $202. On the 3d May, transcripts of both judgments were entered in the Common Pleas, Nos. 179 and 180, June Term, 1853.

Plaintiffs Avere merchants in NeAV York, and defendant Ayas a retail merchant in Erie, Pa., and had purchased in 1851 and early in 1852 a bill of goods of plaintiffs.

<p>Error to the Common Pleas of Fayette county.</p> <p>Jacob Balsley, by his will, made in 1809, directed his executors to sell his real estate, including the land in dispute, and divide the proceeds among certain devisees and legatees, of whom his daughter Elizabeth was one. After the death of her father, Elizabeth married John Shallenberger, and they lived together upon the land until her death in 1844, and her husband continued to occupy it till 1850, when he died. Both the husband and wife had issue by former marriages, but none by their marriage with each other. The defendant in error claims the land under deeds from the heirs of Elizabeth. The plaintiff below claims under the will of John Shallenberger^ the husband, dated November 8, 1888, proved 8th August, 1854.</p> <p>On the trial it was proved that in the year 1828, at a meeting of the devisees claiming under the will, called for the purpose of arranging the estate, it was there agreed by the heirs that Elizabeth might take the portion of land which she and her husband were then occupying, instead of the money she was entitled to receive under the will of Jacob Balsley. That Elizabeth agreed to take the land, and that the arrangement was, that if the land came to more money than she was entitled to under the will, she was to pay the surplus; and if to less, that she was to be paid the deficiency. A deed was to have been written, but no writing was drawn, or deed ever executed for the land. John Shallenberger was present, and made no objection to the arrangement.</p> <p>The jury found for the plaintiff below. The Court left it to the' jury to say whether John Shallenberger had consented to his wife’s taking the land; and instructed them that John Shallenberger, under the statute of limitations, acquired a good title to the land by his possession of thirty years, if there was no agreement or election to take the land, with the consent of the husband.</p> <p>The plaintiff’s counsel excepted to the charge, and further alleged, as ground of exception, that there was no evidence of any agreement that would-be binding upon any of the parties, as there was no writing, no possession taken under it, nor no part performance that would make an agreement concerning land good under the statute of frauds.</p>

Joseph Steele died in 1837, having devised a farm to each of his sons Joseph, Daniel, and James. And to his sons Eli and Absalom $658 each, payable when David became of age, and charged the legacies on his real estate.

Error, to the Common Pleas of JErie county. This action was brought to recover from the defendant the balance due upon his subscription of four shares to the capital stock of the company, and 1 per cent, per month interest for nonpayment. The plaintiffs were incorporated by Act of 27th February, 1849, subject to the provisions of the Act regulating Turnpike and Plank-road Companies, approved 26th January, 1849.

This was an. application to the District Court of Allegheny county for an injunction to restrain the defendants from the use of certain works, and from prosecuting certain improvements specified in… Held: that when leave or license to build a college on a common is given by a commoner, by parol, he can bring no action for the encroachment, though no sufficient common be left: 11 Qom. Law L. 347.

<p>A demand, of an appraisement under the Act of 1849, by the defendant in an execution, after the property lei'ied has been set up for sale, and the bid-dings have begun, is made too late.</p> <p>. Where the plaintiff knew that' his property was advertised before the time appointed for the sale, he was bound to find the constable and demand his appraisement before the hour of sale, and before it commenced; and, failing in this, his right to the exemption was waived.</p>

This was an application by defendant below to open a judgment entered upon a bond, and be let into a defence. The consideration upon which the bond was given, was the conveyance by plaintiff to the defendant below of a tract of land, with special warranty, on the 22d November, 1853.

Elias Baker, the plaintiff, brought this action of trespass against King & Shoenberger, for taking and carrying away 1500 cords of wood, which he alleged belonged to him. On the 8th March, 1845, King and others brought an action of ejectment against James Eckels and others, to recover a tract of land surveyed in the name of Samuel Stitt.

On the 28th March, 1837, the will of Robert McClintock was proved before the register of wills of Somerset county, and letters testamentary issued thereon to Rachel McClintock, Alexander McClintock, and H. L. Holbrook; and on the 1st of November, 1841, the executors filed a joint account, showing a balance in their hands of $1792.15J, which was confirmed.

<p>This was an appeal by Thomas Gibson from the decree of the Orphans’ Court of Butler county ordering him to pay the sum of $30.78 presently, and the like sum annually, to Mary Denny, towards her maintenance.</p> <p>Thomas Denny, the father of Mary, died in 1841, having previously made his last will and testament, in which he devised to his sons John and Thomas respectively 74 acres of land, and to his son James 40 acres. And as to his daughter Mary, ordered that she should, “ in case of need, be supported in a comfortable manner of the proceeds of my (his) land, so long as she shall live.” The devisees entered upon and took possession of the land severally devised to them, in pursuance of the said devise. The interest of John was sold at sheriff’s sale, and became vested in Thomas Gibson, the appellant, who was in possession of the same.</p> <p>In June, 1854, the petition of Mary Denny was presented to the Orphans’ Court, setting forth the devise and the charge in her favour upon the land, that Gibson was the owner of a part of the land charged with her maintenance, and also alleging her need of the support ordered by her father’s will. And prayed for a decree that respondent pay to her his proportionate share of such sum as the Court might deem proper and reasonable for her comfortable maintenance.</p> <p>The answer of the respondent admitted that the lands devised were charged with the comfortable maintenance of the said Mary during her life only in case of need, and alleged that she was not in such circumstances as to require a resort to this charge upon the land.</p> <p>The case was heard upon depositions of witnesses taken by the complainant and respondent respectively.</p> <p>His Honour the President of the Court, after stating the case, and tho facts presented hy the evidence, delivered the opinion and made the following decree:—</p> <p>“ From the whole evidence, we are convinced that the petitioner has made out a case of need, not absolute pauperism or want, as Mr. Gibson seemed to think when he refused to acknowledge any liability to Mary, but that need of support in a ‘comfortable manner’ which the testator contemplated. This being the case, the portion of the land devised to John Denny has become liable in the hands of his assignee, and must be subjected to the burthen of the charge upon it: Craven v. Blakeney, 9 Watts 19.</p> <p>"Thomas Gibson, Esq., the respondent, became the owner of John Denny’s 74 acres, as the assignee of the purchaser at sheriff’s sale. By privity of estate he is therefore personally liable to the payment of the charge upon it. This, we think, is abundantly shown in the following cases: Mohler’s Appeal, 8 Barr 26 ; Shaffer’s Appeal, Ibid. 44; Horner v. Horner, 5 Barr 351; Lobaug's Case, 6 Watts 167.</p> <p>" As the legal title still remains in Gibson, who will be liable to Wilson on his contract to convey, and as the land itself will be liable to the decree also, we conceive no personal liability should be visited upon the latter.</p> <p>“ According to the evidence, it would require $2 a week, or $104 per annum, to support Mary. This is charged on the testator’s whole land, 250 acres. The proportion which 74 acres gives of this is $30.78, leaving the other portions to bear their own burden.</p> <p>“ And now, to wit, March 26,1855, the Court order and decree, that Thomas Gibson, the respondent, pay to Mary Denny, the petitioner, until otherwise ordered by the Court, or until his estate in the premises cease, or if his estate in a part cease then in proportion to the remainder, the sum of $30.78 forthwith, with the cost of this proceeding, and a like sum of $30.78 yearly and every year hereafter, during the life of the said Mary Denny; and in default of such payment, that the premises (that is to say, the tract of 74 acres devised to John Denny by his father Thomas Denny, and now owned by the said Thomas Gibson), be sold at public sale at such time and place, on such terms and by such person as the Court shall hereafter on application specially decree, for the payment of the said annual sum and costs.”</p> <p>In this Court the following exceptions were filed:—</p> <p>1. The Orphans’ Court has no jurisdiction.</p> <p>2. The decree is not in accordance with the spirit and meaning of the testator.</p> <p>3. The amount to be paid per annum is more than is justified by the testimony.</p>

<p>The owner of a reversion has a right to sell the whole or a part of it, and the law will apportion the rent; and the right of apportionment attaches ;the instant the sale is made.</p> <p>No action of the purchaser, in dispossessing the tenant of the part purchased after such severance, can affect the rent accruing out of the unsold part, and remaining in the undisturbed possession of the tenant.</p> <p>Nor will the fact that the original reversioner became a party to the trespass, by which the tenant was dispossessed of the part sold, by aiding his vendee to commit it, change the rule, or suspend the rent for that part, which was unsold, and which remained in the possession of the tenant.</p>

This was an action of replevin, in which the jury found the following special verdict:— And now, to wit, January 9, 1855, a jury being duly empannelled, do find on their oaths that, on the day of the issue and execution of this writ of replevin, to wit, on the 18th of February, A. D. 1852, the property mentioned therein was the proper goods and chattels of the plaintiff, and that he had the right to the possession of the same, but that the defendant there held and debarred…

<p>Error to the District Court of Allegheny county. ■</p> <p>The questions in this case were, whether the plaintiff below was entitled to judgment in an action of debt, brought upon a foreign judgment, where the defendant had failed to file a sufficient affidavit of defence, and where another suit was pending for the same cause of action in the state of New York.</p> <p>The plaintiff below filed a transcript of a record from the Supreme Court of the state of New York, in which he had obtained judgment against the defendant and others for $2459.96. The defendant alone was summoned, and the summons returned N. E. I. as to the others. The defendant filed an affidavit of defence, and also a supplemental affidavit, which the District' Court held insufficient, , and-gave judgment for the plaintiff for the amount of the claim and interest.</p> <p>The defendant below took a writ of error, and assigned the following errors:—</p> <p>1. The plaintiff is not entitled to judgment for want of an affidavit of defence in an action of debt, on a judgment in another state, upon filing a copy of the record. v</p> <p>2? The1 copy of the record filed contains no copy of the note, or instrument of writing, and book entines, or statement or specification .of the claim on which the action was brought in the state of New'Nork.</p> <p>3. The plaintiff did not file with his prceciye for the summons, in the office of the prothonotary, a copy of the instrument of writing and book entries, or a statement or specification of the claim, as required by the rule of Court to entitle him to judgment for want of an affidavit of defence.</p> <p>4. There is another suit pending for the same cause of action in the state of New York, that was commenced prior to this action.</p>

<p>Error to the District Court of Allegheny county</p> <p>The action was debt brought upon the following article of agreement:—</p> <p>This agreement witnesseth, that whereas, Peter Jennings did, on the 22d day of July, 1835, purchase from the following heirs of John Snyder, Esq., deceased, late of Allegheny county, viz.: Michael Siegfried and Peggy his wife, late Peggy Snyder, Michael Straw and Elizabeth his wife, late Elizabeth Snyder, Adam Snyder, and John Kuhns and Michael Straw, guardians of Jacob Snyder,' a lunatic, all their seventh parts, each, of two ten acre lots, situate in the Reserve Tract, opposite Pittsburgh, Nos. 242 and 253; and whereas, said Jennings did, on the 25th of July, assign and declare the same to be for the use of W. Robinson, Jr. Now this agreement witnesseth, that in' addition to the sums therein stipulated to be paid by said Jennings, the said Robinson agrees to pay for each of the shares so purchased and assigned by said Jennings, as aforesaid, to Jacob Snyder, of Ross township, the sum of $428.50 each, and 'also $428.50 for the share purchased by said Robinson from John Snyder, of Ross township; the said payments to be paid on the execution of the proper deeds and conveyances for the said shares.</p> <p>Witness my hand and seal, this 28th July, 1835.</p> <p>William Robinson, Jr. [l. s.]</p> <p>The plaintiff alleged a conveyance of the interest of two of the heirs of John Snyder, deceased, and that the plaintiff went with the person who made the purchase and assisted in the negotiations. The plaintiff read the deposition of Peter Jennings, except the following clauses in the cross-examination: — “ The basis of the agreement (written article) was that there should be given a good title to this property by them. Mr. Robinson told me, and so did, Mr. Bradford, that the title was bad.”</p> <p>“Mr. Bradford said I ought to have got a warrantee deed mentioned in the 'agreement, instead of an agreement to sell all the right, title, interest, and claim, and that that would have put an end to the matter.”</p> <p>The defendant in presenting his case proposed to read those omitted parts — the plaintiff’s counsel objected, because they were the declarations of defendant, hearsay, and the contents of written agreements, &c. The Court sustained the objections, and defendant’s counsel excepted and asked the Court to rule out all of the examination in chief, and particularly so much as refers to the same or either of the written agreements.</p> <p>This the Court also refused, and the defendant’s counsel excepted.</p> <p>Eifty-second Rule of the District Court of Allegheny county:— “No objection to any deposition shall be allowed on the trial of the cause in which it has been taken, except that the witness is incompetent. All objections shall be made by filing exceptions within ten days after notice of the filing of the depositions, or receiving a copy thereof, which exceptions shall be heard in the usual course of the argument list. But parts rejected on exceptions as evidence in chief may be heard, if proper, as rebutting evidence. Rule 52 so far as hereby altered is repealed.” Jan. 3d, 1848.</p> <p>The following points were submitted by the counsel of the defendant.</p> <p>1. That the agreement on the part of Robinson is, on its face, a mere nudum pactum, no consideration being stated therein as moving from the plaintiff, and no obligation whatever being imposed upon him thereby.</p> <p>2. That the evidence shows no actual services rendered by the plaintiff upon the basis thereof, and so no claim to a recovery.</p> <p>3. That to entitle the plaintiff to recover, upon the footing of the deed executed by John, in pursuance of a previous sale to Robinson, the plaintiff must have shown some service as a consideration.</p> <p>4. That as to the conveyance of Adam, made upwards of eight years afterwards, and after he had previously sold to Patterson, there could be no recovery in the absence of evidence that it was procured by the plaintiff, or through his instrumentality.</p> <p>5. That if the agreement was abandoned on account of a defect in the title, real or supposed, there can be no recovery under it, and the subsequent conveyances to Patterson, connected with the lapse of nearly twenty years, without any claim shown under it, may be taken as evidence of such abandonment.</p> <p>6. That the agreement is an entirety, and there could be no recovery upon a partial performance, and that the execution of one or two deeds out of the five referred to, without any evidence of the services or agency of the plaintiff therein, would not entitle him to recover pro tanto.</p> <p>7. That the agreement to pay on the execution of the proper deeds and conveyances, imported a good title in each of the heirs enumerated, to one undivided seventh part of the property in question.</p> <p>8. That the title shown to Ann Seabold, a married woman, to one undivided third part of the whole of the said property, in her own right, is to be considered an outstanding title to that extent in the absence of evidence that she had ever become discovert, and is to be regarded as of the period when the contract was to be performed.</p> <p>The Court chai’ged the jury as follows: — “ That the plaintiff, under the agreement of the 28th of July, 1885, was not entitled to recover for any of the shares for which he had not shown conveyances to the defendantThat having shown conveyances from John and Adam Snyder (two of the parties mentioned in the agreement), the plaintiff was entitled to recover the amount agreed to be paid to him by the defendant for each of said shares; notwithstanding he had failed to show conveyances for the shares of the other parties mentioned in the agreement: — That the agreement being sealed with the seal of the defendant, imported a consideration and was binding on him: Yard v. Patton, 1 Harris 278. That having accepted conveyances from John and'Adam Snyder, and having been shown to be in possession of the property, the defendant could not set up the alleged defect in the title of John Snyder under the deed of Meiley and others, to defeat this action: —That there was no evidence that the agreement, as it respects the shares of John and Adam Snyder, was abandoned by the plaintiff; nor was there any evidence of a conveyance by Adam Snyder of his interests in said lots to Thomas H. Patterson.”</p> <p>The Court refused to charge, as requested by the plaintiff’s counsel, in the points submitted by them.</p> <p>The jury rendered a verdict for the plaintiff for $500.</p> <p>The first assignment of error was to the rejection of the parts of the cross-examination of the deposition of Peter Jennings, without having set forth the testimony offered in the specification of error.</p> <p>The second was to the refusal of the Court to rule out the examination in chief of Jennings.</p> <p>The next eight assignments of error were to the refusal of the Court to answer the defendant’s several points as requested; but neither the points nor answers were set forth in the. specifications of error.</p> <p>The case was submitted on the paper-books and printed arguments, by</p>

<p>Error to tbe Common. Pleas of Lawrence county.</p> <p>Replevin for a yoke of oxen. Burry agreed with Nesbit to purchase the oxen in dispute at 3 cents per pound, live weight, and that the weight should be ascertained by the scales at “ Mt. Jackson.” Burry paid $10 as earnest on the bargain. When the cattle were taken to Mt. Jackson, the scales were out of repair, and the weight could not be ascertained by them. Burry offered to have the weight ascertained in some other way, and also to pay the balance of the price; Nesbit refused, and drove the cattle home, and Burry brought replevin.</p> <p>The principal question in the case was, whether, under the circumstances, there was such a change of property in the oxen as to enable Burry to maintain replevin.</p> <p>The jury, under the charge of the Court, Agnew, P., found for the plaintiff; and the instructions of the Court were the subject of the errors assigned.</p> <p>Plaintiff’s 3d point: “ That if the jury believe by the terms of the contract the price of the oxen was $3 per cwt., and $10 thereof paid at the time, and they were to be delivered on the-day of--, in Mt. Jackson, and were so tendered to Burry’s agent, Poak, who agreed to receive them, offered to pay Nesbit the price or balance due, and Nesbit at the time agreed with said agent to take them home again, and feed and keep them at the risk of Burry, and at his expense, it is in law a delivery thereof, and Nesbit became the bailee of Burry; and upon his refusal to deliver, the plaintiff may sustain this action.”</p> <p>Answer: “Answered in the affirmative, if the facts be as stated.”</p> <p>Specification of errors: 1st. The Court erred in that part of their charge which was in these words: “ If the jury believe, upon the testimony of John Poak, and other testimony in the cause, that the price of the oxen could not be ascertained, because of the condition of the scales at Mt. Jackson, and in consequence of this that Nesbit agreed to take the cattle home at the risk of Burry, and to be paid by Burry for their keeping, it would be a delivery, and entitle the plaintiff to recover.”</p> <p>2d. The Court erred in that part of their charge which was in these words.: “ But if, after it was found that the weight could not be ascertained, Nesbit, instead of taking steps to await till the contract could be carried out, or until the weight could be ascertained by the proposed means, when the scales should be repaired, or by some other mode consented to by the parties, undertook to rescind the contract, and refused to carry it out, while Burry was insisting on its fulfilment, and offering to perform on his part, Nesbit having received part payment, the right of property would vest in law in plaintiff, and the plaintiff be entitled to recover its possession.”</p> <p>3d. The Court erred in their answer to the plaintiff’s third point.</p>

<p>Error to the Common Pleas of Jefferson county. .</p> <p>On the 4th of August, 1849, Brown, the plaintiff in error, made a contract with Jacob Strader to deliver him certain lumber the next spring. On the 1st of December, 1849, Brown assigned this agreement to Brooks, and guarantied the payment of the same. The lumber was not delivered. Suit was brought against Strader, and judgment recovered against him, and an execution issued upon which his real estate was levied and sold, but the proceeds were absorbed by prior liens. An alias fi. fa. was issued before the commencement of this suit, and returned nulla bona.</p> <p>The Court (MoGalmont, P.) instructed the jury that, “if there was no personal property from which the money could be made after the rendition of the judgment when the execution was issued, we instruct you that due diligence was used in the prosecution of the claim. If there was personal property when the execution issued which could have been applied to that claim to satisfy it, then it would not have been using due diligence to levy on real estate.”</p>

<p>Since the passage of the Acts of 1832, 1833, 1834, and 1836, the Orphans’ Court has exclusive jurisdiction to make and enforce distribution of the estates of intestates.</p> <p>No common law action can be sustained to recover a distributive share of such an estate, against the administrator, although his account exhibiting a specific balance against him, has been settled in, and confirmed by, the Orphans’ Court.</p>

<p>Error to the Common Pleas of Butler county.</p> <p>Thomas W. Wallace and Roman Eyth were partners under the firm of Wallace & Eyth, and as such purchased goods and merchandise from David Walker, to the amount of $450. After-wards, on the 10th day of May, 1849, the partnership was dissolved. Wallace purchased the interest of Eyth, and gave the note on which this suit is brought, with David Walker as surety, in part payment for his interest in the concern. Some time in the fall of the same year, Eyth assigned this note to Berg & Co., in payment of goods bought of them. On the 27th November, 1849, Wallace made an assignment for the benefit of creditors to David Walker, and shortly afterwards left for California, where he died on the 12th of May, 1852, insolvent. Eyth subsequently also became insolvent.</p> <p>The only question in the cause was, whether the claim of Walker against Wallace & Eyth could be set off against the note in the hands of Berg & Co. ^</p> <p>The Court below, Agnew, P., rejected the evidence of set-off, ■ and this was the error assigned.</p>

Error'to the Common Pleas of Greene county. Martin Smith, on the 6th day of May, 1854, gave his single bill to Hood & Co., for the sum of $1890.44, with power of attorney to confess judgment. On the 24th day of May, 1854, this single bill and warrant of attorney was handed to the prothonotary of Greene county, to be entered as a judgment, who by mistake entered it for the sum of thirteen hundred dollars and forty-four cents.

<p>Error to tbe Court of Quarter Sessions of Fayette county.</p> <p>Samuel A. Fisher and Jacob Clement were separately indicted for burglary, in breaking and entering into the house of Daniel Brubaker, in the town of Brownsville, and on the 9th of March, 1855, were arraigned, tried, and found guilty. Jacob Clement pleaded guilty. Andrew H. Holmes, the plaintiff in error, was indicted as being accessory to the burglary, both before and after the fact, and for receiving the goods stolen by Fisher and Clement from the said dwelling-house. And on the 10th of March, he plead not guilty, and a jury was empannelled, who found him guilty “ in manner and form as he stands indicted.” The indictment upon which Holmes was convicted set forth, with all the precision and technicality of an indictment, the commission of the burglary by Fisher and Clement, and concluded, “ against the form of the Act of Assembly, &c., and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>In the succeeding counts the indictment charged Holmes with being an accessory before the fact, after the fact, and with having received the goods knowing them to have been stolen.</p> <p>After the conviction Holmes’ counsel moved in arrest of judgment, which was overruled, and 'the defendant sentenced to five years’ imprisonment in the Western Penitentiary.</p> <p>Copy of Sessions. Docket Entry</p> <p>The Commonwealth v.</p> <p>Andrew H. Holmes.</p> <p>In the Court of Quarter Sessions, Accessory before the fact, for burglary, &c. Felony, Daniel Brubaker, Pros. True bill, George H. Wood, Foreman.</p> <p>The prisoner being "called on to plead to the indictment, the Commonwealth elected to try the case in the Quarter Sessions, which was accordingly done. Defendant, Andrew H. Holmes, pleads non eul et de hoc, &c. District-Attorney, similiter, &c.; J. N. H. Patrick, District-Attorney, Issue, &c. R. T. Galloway, Clerk of Quarter Sessions. And now, to wit, March 10, 1855, jury sworn, tried, and verdict rendered March 13, 1855, that the defendant, Andrew H. Holmes, is guilty in manner and form as he stands indicted. And now, to wit, March 14,1855, D. Kaine, Esq., moves the Court to arrest the judgment in this case. Reasons filed, and, after argument, the Court overrule the motion in arrest of judgment; and the same day, March 14, 1855, the prisoner, Andrew H. Holmes, brought into Court, and the Court sentenced him to pay a fine of $1 to the Commonwealth, the costs of prosecution, and undergo an imprisonment in the Penitentiary of the Western District of Pennsylvania, in Allegheny county, for a period of five years, to be computed from this date, and stand committed, &c. July 7,1855. Writ of error received and filed.</p> <p>Errors assigned: 1. The record shows that Jacob Clement and Samuel H. Fisher were indicted as principals, and that Andrew H. Holmes, the accessory, was alone tried and convicted.</p> <p>2. The Court of Quarter Sessions had no jurisdiction to try the crimes set forth in this indictment.</p> <p>3. It does not appear from the record that any jury was selected and empannelled, or that the prisoner was tried by a jury.</p> <p>4. It does not appear from the record that the prisoner was present at the rendition of the verdict.</p>

This was a proceeding to assess damages under the Act of 26th January, 1849, entitled “ An Act regulating Turnpike and Plank-Road Companies,” brought into the Court of Common Pleas by appeal, and tried at a special Court before his Honour Judge Mc-Calmont. The facts of the case sufficiently appear in the opinion of the Court.

<p>An amendment of its records and proceedings, allowed and made by a Court of competent jurisdiction, cannot be collaterally inquired into or impeached.</p> <p>One, not a party to the proceedings upon which the amendment was made, cannot, in a different proceeding, deny the regularity and legality of such amendment.</p>

Tbe action was trespass quare clausum fregit. The plaintiff occupied the locus in quo as tbe tenant of James M. Sterrett. The defendants justified on tbe ground that they were tbe contractors off the “Erie and Wattsburg Plank-Boad Company,” which was incorporated by tbe Act of 27th February, 1849; and also set up a license to said company by Sterrett, the owner of the fee.

The plaintiff in error brought an action of assumpsit against the defendant, upon a parol contract, for the sale of a house and lot. The defendant denied the contract, and also set up the statute of frauds and perjuries. Upon the first trial of the cause, the plaintiff, by leave of the Court, filed an additional count,

This is an appeal from tbe decree of tbe Court of Common Pleas of Westmoreland county, distributing tbe proceeds of tbe sheriff’s sale of tbe real estate of Dorsey Dodson.

<p>Error to the Common Pleas of Indiana county.</p> <p>Jane, Polly, and Eleanor Stewart brought an action of ejectment against Samuel Stewart for 50 acres of land in Centre township, Indiana county. On the 29th day of April, 1828, Archibald Stewart, Sr., the father of the parties, was the owner of a tract of land of about 400 acres, of which this land in controversy was a part. On that day he made and executed his will, by which he divided the tract among his family. To his son Archibald he devised 100 acres and allowance to be laid off on the south side of the tract. To the defendant he gave 100 acres and allowance to be laid off to him on the north end of the farm, adjoining lands of Johnson and others, to include the buildings then occupied hy defendant. The residue of the tract he devised to his wife Eleanor in fee. Archibald Stewart, the testator, died in March, 1831. The widow, by her will, dated 4th July, 1831, devised her portion of the tract to the plaintiffs. In 1827, Samuel Stewart, the defendant, went into possession of the land he now occupies, including the land in dispute, under a gift from, or by permission of, his father, and continued in the actual occupancy of it until the trial of this suit.</p> <p>About one year after the death of the testator, Archibald Stewart, Jr., one of the executors (the widow and Jane being the others), procured a surveyor, and divided the land into three parts, according to the directions in the will, as they supposed. Samuel was present, and assisted in the survey, and his part contained 107 acres and 8 perches, and allowance. . The widow did not assent to this division, and died shortly after it was made.</p> <p>The plaintiffs, afterwards, made a deed to Archibald for his part. Samuel continued in the exclusive possession of the part surveyed off to him, and the plaintiffs continued likewise after the death of their mother in possession of the part laid off for her, cultivating up to Samuel’s lines, and assisting in keeping up the division fences, until the commencement of this action, on the 20th April, 1852.</p> <p>The plaintiffs claimed that the defendant was in the possession of land, which, by their father’s will, had been devised to their mother, and by her will devised to them.</p> <p>The defendant relied mainly upon the statute of limitations.</p> <p>The Court instructed the jury, that if the defendant was on the land claiming hy and under the devise, his possession was not adverse, and therefore the statute of limitations would not avail him. And that, before his possession could fairly be considered adverse to plaintiffs, there should be shown some acts of hostility; something to show that after his father’s death he claimed adverse to, and not under the title derived through the will.</p> <p>The jury found for the plaintiffs several acres on the east and south ends of defendant’s farm, including a meadow and other fields, of which he had been in possession from before his father’s death till the time of trial.</p> <p>The instructions of the Court below were assigned for error in this Court.</p>

<p>Appeal by Mrs. Julia Ann Black, from the decree of the Orphans’ Court of Washington county, confirming the report of an auditor, distributing the amount in the hands of William Workman, administrator of Jacob Schaeffer, deceased.</p> <p>The deceased left issue, two daughters, the appellant and Louisa Thompson, and a granddaughter named Mary Ringland, issue of Charlotte Ringland, deceased, a daughter of the intestate, and for whom Colin M. Reed was guardian. Shortly after the death of Jacob Schaeffer, difficulties occurred in the administration of his estate, growing out of claims which he held against his daughters, and of demands which they made upon his estate. To enable the administrator to settle, the heirs signed the following agreements:</p> <p>“For the purpose of closing the estate of Jacob Schaeffer, deceased, as speedily as possible, and preventing further delay, expense, and litigation, we do hereby authorize William Workman, administrator, to settle all disputed claims for and against said estate on such terms as will seem most desirable to him, and on the basis of such adjustment to settle his account, and make distribution of the whole estate in his hands. It is understood that this authority embraces all claims held by the estate against Mrs. Ringland, for notes given .by her to her father, or claims against her paid by him, which claims said administrator is to adjust and dispose of as to him may seem just and equitable.</p> <p>“Witness our hands this 13th of December, 1853.</p> <p>“ C. M. Reed,</p> <p>“ Guardian of Mary Ringland.</p> <p>“ Julia Ann Black,</p> <p>“ George Black.”</p> <p>“ I hereby assent to the cancellation and extinguishment of the claims in the hands of William Workman, administrator of the estate of Jacob Schaeffer, against Charlotte Ringland in her lifetime, and that the distribution of the estate of said Jacob Schaeffer 8hall be made as if such claims had never existed.</p> <p>“ Witness my hand, December 22, 1853.</p> <p>“ Attest: “ Louisa Thompson.”</p> <p>“Jas. Watson.”</p> <p>The administrator at this time held notes and obligations given to the intestate by Charlotte Ringland, and paid by him for her, to the amount of $516.07, and also various claims against Mrs. Thompson and her husband. Mary Ringland’s guardian alleged that Jacob Schaeffer, in his lifetime, had been the guardian of Mary, and that in right of her father, who was deceased, she was entitled to $3000 in Natchez, which had been lost through the intestate’s neglect. Mrs. Thompson and her husband made a claim, the amount of which did not very distinctly appear, for various services rendered to her father. In pursuance of the agreements above recited, the administrator delivered up to Mr. Reed, the guardian of Mary Ringland, the claims he held against her mother, and also the claims against Mrs. Thompson and her husband; they at the same time relinquishing their claims against the estate. The administrator filed his account, showing a balance in his hands of $8203.38, which was confirmed by the Orphans’ Court in February, 1854; and at the May Term following, an auditor was appointed to make distribution. Before the auditor, the appellant contended that Mary Ringland should be charged with the several claims which the intestate had held against her mother, Charlotte Ringland, and which the administrator had delivered up. The appellees relied upon the agreement^, and the settlements made by the administrator in pursuance of them.</p> <p>The auditor sustained the settlements made by the administrator upon these disputed claims, and reported an equal distribution of the balance of the account among the three heirs.</p> <p>To this report the appellant, Julia Ann Black, filed exceptions. The Orphans’ Court overruled these exceptions, and confirmed the report of the auditor; and an appeal was taken to this Court.</p>

<p>Error, to tbe Common Pleas of Cambria county.</p> <p>Patrick Conway, the plaintiff, .brought ejectment against Lawrence Cassidy and Michael Nagle, to recover from them a tract of land alleged to be in their possession, surveyed in pursuance of a warrant in the name of David Hammond, Sr., dated the 25th October, 1773, for “ three hundred acres of land adjoining Joseph Fields, on some of the head waters of Juniata, in the county of Bedford,” endorsed “No. 37,” and a survey of 301-J acres and allowance, by Thomas Smith, D. S., on the 15th of June, 177 6, also endorsed “No. 37.” A tax sale of the same land to James C. McGuire, and a regular title from McGuire to himself. The defendants severed in their defence. Nagle showed an adverse possession of the land he claimed for more than 21 years, and a verdict was rendered in his favour. Lawrence Cassidy gave in evidence, and showed title thereto in himself and his brother Lewis a warrant to Jacob Fawns, dated the 10th of April, 1776, for “ 300 acres of land on the south side of Clearfield Creek, to adjoin an old surveyed line about one mile below, where the path crosses said creek from Frankstown to Kittaning, in Westmoreland county.” A survey thereon of 332 acres 25 perches, per John Henderson, “deputed for this service,” on the 24th June, 1776. For the purpose of invalidating 'the plaintiff’s title under the David Hammond survey, the defendants gave in evidence a survey of 337 acres, made on the 7th November, 1786, by George Woods, D. S., in pursuance of the same warrant, in the name of David Hammond, which latter survey was returned into the surveyor general’s office on the 29th March, 1787. This last survey did not cover the land in dispute, but was located at a different place from the first survey made upon the same warrant.</p> <p>The first survey as located, and the Jacob Fawns survey, under which Cassidy claimed, interfered with each other, and were the subject-matter upon which the questions in this Court were raised.</p> <p>That portion of his Honour Judge Taylor’S charge, which is material, is as follows:—</p> <p>“Which is the better title, the Hammond or the Jacob Fawns?</p> <p>“ The Hammond is the older warrant, and the prior survey. The survey upon it was made on the 15th, and the survey upon the Jacob Fawns on the 24th of June, in the same year. This, if both were indescriptive, or descriptive and not shifted, warrants, would determine the priority of the Hammond. But the defendant alleges that the Hammond was shifted; and that the title under it would date only from the 5th of August, when it was accepted, after the date of the Fawns survey. And such is the law with ■ respect to a shifted warrant. Whether a warrant has or has not been shifted, must be determined by the jury, from the evidence fixing the marks or localities called for, and the location of the survey: but it is necessary to inquire and settle in the first place, what is to be considered a shifting, such as will postpone the title until notice, or until the acceptance of the survey. [The Court here read to the jury the observations of Judge Gibson, in 10 Ser. H. 216, and continued:] It will thus be seen that to constitute a shifting, the survey must be so separated from the place described in the warrant, as to show that it was removed from the ground which was first intended; so as to show a change of intention. When the warrant is not precisely descriptive, but loose or vague in the terms of description, and the location answers the calls with reasonable certainty, it is not shifted, though all the calls may not be precisely met or answered.</p> <p>“ These are both descriptive warrants-; both loose or vague, rather than precise, in the terms of description; as we notice in the description contained in one of them, ‘ on some of the head waters of Juniata;’ and in the other, ‘on the south side of Clearfield Creek, to adjoin an old surveyed line about one mile below where the path crosses said creek.’ The Hammond warrant calls for £ 300 acres of land adjoining Joseph Fields on some of the head waters of Juniata, in the county of Bedford.’ The surrey is shown to adjoin Fields; and it is shown that Fields lies on the head waters of the Juniata, which the plaintiff contends locates the survey according to the literal terms and true and natural meaning of the description. But if it adjoins the Fields (the only certain call in the description), and is not over 40 rods, as the witnesses of the defendant prove, from the nearest Juniata waters, we say that the calls, in any construction of the description of the warrant, are sufficiently met and answered by the location; and that it is not shifted.</p> <p>££ The case then, gentlemen, may be committed to you in a few words. You will regard the survey of 301J acres, made thé 16th of June, 1776, and through a tax sale of which the plaintiff claims, as a valid survey, and the only valid survey upon'the David Hammond warrant, if another survey was afterwards made upon that warrant; and, finding it to be located where the plaintiff claims it to lie, and not shifted, it entitles him to your verdict against Lawrence Cassidy for all the land in his possession, or included within the Jacob Fawns survey, and for which that defendant has taken defence. The other defendant, Michael Nagle, has made out a complete defence under the statute of limitations, and is entitled to a verdict in his favour.”</p> <p>. The defendant excepted to this charge, and the jury found for the plaintiff.</p> <p>The defendant assigned for error, the ruling of the Court that the survey of the 16th June, 1776, was the proper and legal survey of the Hammond warrant.; and also, that the Court had taken the questions of fact from the jury.</p>

This ejectment was brought in 1847. On the 12th April, 1848, the defendant confessed judgment, “ to be released on payment of the amount dup on the article, according to a survey to be made by Judge Irwin.” The next proceeding in the cáse was á writ of hab. fac. pos., which issued to August Term, 1853; and July 27,1853, a rule was taken to show cause why the writ should not be set aside, which was made absolute January 20, 1854.

<p>Where a devise of land contains a limitation to a class, which may include persons not yet horn, the time of the distribution defines the members that are to constitute the class.</p> <p>A testator devised as follows: “ I further will that the plantation I bought of my son Robert, lying near Hill’s Mill, shall be equally divided amongst my son Robert’s children, he and them enjoying the benefits of it whilst he lives.” Held,</p> <p>1st. That Robert took a life estate in the premises so devised.</p> <p>2d. That the division amongst the children was to be made at Robert’s death.</p> <p>3d. That children born after the death of testator, and living at the death of Robert, participated equally with those born before.</p>

- In April, 1822, a man by the name of James Hill, supposing the land in dispute to be vacant, went upon it for the purpose of making a settlement. He raised a cabin upon it, which was occupied by his sons and tenants until 1824, when he sold it to Hugh Cameron. Caméroh went into possession, claiming as vacant land 330 acres, built a new house and barn upon it, cleared and fenced 25 or 80 acres and, in 1827 of 1828, had a survey made including 333 acres.

John Neely died in July, 1851, leaving the plaintiff his widow: the defendant is his surviving administrator.

This was a scire facias sur mortgage, dated September 21,1853, brought on the 3d day of June, 1854, by the mortgagee, Ross, against Kennedy and his wife, as mortgagors. No affidavit or statement of claim, or copy of the bond secured by the mortgage, was, filed.

<p>Error to the Common Pleas of Erie county.</p> <p>Ejectment. The ease in the Court below involved an immense amount of every kind of evidence; some of it brought up from a remote date; and very numerous questions as to the effect of deeds through which the plaintiff, in whom the title had been vested to bring suit, as trustee of parties interested under the last will of Mrs. Susan Wallace, claimed. But though bills of exception were taken to much of this evidence, the Court here refused to pass upon it, because the paper-book of the plaintiff in error did not set forth nor state the deeds or evidence in such a way as to enable this Court to judge what they really were. Though the case therefore involved below a great deal of other matter which the plaintiff in error meant to bring up, the only matters which this Court would consider, arose from this case.</p> <p>John B. Wallace, Esq., in April, 1805, married Miss Susan Binney, who was possessed of a considerable patrimony, mostly real estate, and on June 9, 1806, joined with her in a short but regular deed of bargain of sale, to Horace Binney, Esq., which was not acknowledged .till June 9, 1807, when it was formally , acknowledged by both parties ; by this deed Mr. and Mrs. Wallace conveyed all and singular the lanas, tenements, and real estate belonging to the said Susan, wheresoever the same may be, together with the appurtenances, to have and to hold the same with the appurtenances to the said Horace, his heirs and assigns, to the use of the said Horace his heirs and assigns for ever. In trust, nevertheless, that the said Horace, his heirs and assigns, shall hold the same upon such, trusts and for such uses and purposes as the said Susan, by any instrument of writing in the nature of her last will and testament, being all written with her own handwriting, signed with her name, and sealed with her seal; shall appoint and declare. This deed was never delivered, nor shown to Mr. Binney, nor put upon record, but was put away among other papers of either Mr. or Mrs. Wallace, and its existence for some time apparently forgotten. Mr. Binney never saw it till after Mr. Wallace’s death 'in 1837, when it was shown to him by a son of Mrs. Wallace, who had found it among the papers of his mother’s trust. Between the date of this deed and .December, 1814, Mr. Wallace and his 'wife had sold about $53,000 of her estate for his purposes; and in that month, Mr. Wallace gave to Mr. Binney a bond for $50,000, which Mz*. Binney accepted, to hold in trust for the use • of his sister, Mrs. Wallace; the consideration of this bond being Mrs. Wallace’s- patrimony which had passed into her husband’s hands,' and which Mr. Wallace recited that it had always been his intention to settle. In part payment of .this bond, the lands in question were conveyed in 1824, by a short deed, never ■ recorded, to the then trustee, an assignee of the obligee; but no endorsement was made on the bond. Soon after this transfer, August 14, 1819, Stephen G-irard obtained a judgment, at Phila...delphia, against Mr. Wallace, as endorser of certain notes, and on November 25, 1824, levied on these lands, with actual notice that they were the property of Mrs. Wallace, whose agent forbade the sale; Mr. Girard b,ought them 19th March, 1825, under the sale . made on his own levy. He had no lien at the date of Mr. Wallace’s conveyance, his testatum fi. fa. having been docketed in Erie, October 20, 1824. Immediately after Girard’s purchase he had the ’ assessments charged to his own name, and paid taxes on the property for twenty-nine or thirty years, up to the bringing of this suit. Immediately after his purchase, also, he appointed an agent, who, in May, 1830, went upon the land with surveyors. These got assistance from other parties to run lines and subdivide the property into smaller lots. The land was unseated. Girard’s party remained upon the land three or four days, and divided the property into lots. After this the agent advertised for proposals to make a road, received proposals, and sent them to Girard. Girard died about that time, making the plaintiffs in error his devisees. The agent then corresponded with these last, who sent him power to make leases, which he did make in 1835, ’36, ’41, ’42, ’46, ’49, and ’50, but none prior to July 7,1835. Except in one year, the agent went upon the lands once a year, and sometimes oftener, every year; and was at great expenses of every kind in taking care of the property. This suit was brought in 1853. On the trial below, the counsel for the defendant in error asked the Court to charge in effect that the deed of 1807 constituted an equitable agreement and obligation on the part of Mr. Wallace to settle his wife’s separate real estate upon her, and that, having had himself the benefit of this property, it was a good consideration for the subsequent bond; which instruction the Court in substance gave. The plaintiff in error asked the Court to charge in effect that the possession of Mr. Girard was such an adverse possession as created a title under the statute of limitations ; and also that the omission for twenty-eight years to bring suit, and the acquiescence in Girard’s possession all that time, in his payment of taxes, in his care of the property, and the other facts shown, constituted an abandonment by Mrs. Wallace, or her devisees, of her title; which instruction the Court did not give, but gave instructions in substance the reverse.</p>

Tlie action was ejectment for 100 acres of land in Alleppo township. The title was admitted to be out of the Commonwealth. The land in dispute was part of a larger tract, called “Fox Hill,” which the plaintiff alleged was patented on the 4th August, 1785, to John Hughes and Timothy Ryan.

Jacob D. Mathiot, James Paul, and George T. Paul were partners engaged in the iron business in Westmoreland county. On the 1st day of September, 1852, three judgments, in favour of Ramsey, Graham, and Robb, respectively, were entered in the Common Pleas of Fayette county against the firm. On the 6th day of March, 1854, Samuel C. Cummings, the appellant, obtained a judgment against Jacob D. Mathiot.

This was an ejectment to recover a lot of ground, in which the following facts appeared: Abraham Horbach was the owner in fee of the land in dispute, which he conveyed by deed to Susannah Weaver, on 11th December, 1848, for the consideration of $200.

<p>Where a defendant in an execution issued upon a judgment for a debt contracted pi’ior to the 4th of July, 1849, consented to a levy on articles exempt by the Act of 1836, it was competent for him to withdraw such consent before the day of sale, and the officer selling such articles after notice of such withdrawal, is liable to an action for so doing.</p> <p>This Court will not notice an assignment of error to the charge of the Court below, which does not conform to the rules of this Court, by setting out the exact language of the instruction complained of in the specification of error.</p>

Error, to the District Court of Allegheny county. This was an action on the case for malicious prosecution. Upon the trial of the cause, defendant’s counsel, called Jacob Whitesell, Esq., a member of the bar, who testified as follows:— “ Mr. Sample stated to me the facts of the case, and I advised him to go before the mayor and make information, and have the parties arrested and examined.

This was ejectment for 190 acres of land, part of a tract which had been originally surveyed on a Virginia certificate, for 400 acres, to Robert McClelland, who, by his will proved on the 10th day of July, .1791, demised the same to his two granddaughters, Elizabeth and Jane Archer. Elizabeth was married to Timmans, and Jane, in 1796 or 1797, to Henry Church.

Isaac Shriver, the plaintiff below, brought ejectment to recover from Otho Spragg, and others, 450 acres of land. The title to the premises in dispute, in 1842, was vested in John Shriver, against whom the plaintiff showed a judgment, entered in 1842 — revived in 1844 — and again in 1849; a levy and sale under that judgment to the plaintiff, and a sheriff’s deed to him, acknowledged 18th December, 1851.

$500, dated, 19th. March, 1853, signed by Jesse Lazear, cashier. The bank defended the action on the ground that no such deposit had been made by the plaintiff on the 19th March, 1853, but that such-a .deposit had-been made by him on the 19th March, 1852, which, ha’d' been, subsequently paid by the bank upon the plaintiff’s checks. To sustain this defence, Jesse Lazear, the cashier, was offered as a witness.

• Appeal from the Common Pleas of Westmoreland county. This was a bill in equity to compel a conveyance of land, which the Court below dismissed before answer, and the complainant appealed. The facts of the case sufficiently appear in the opinion of his Honour Woodward, J. '

■ Error, to the Common Pleas of Westmoreland county. The plaintiff was a tanner, and furnished leather to the defendant from time to time, from the year 1828 till 1850, amounting to $844.72.

■ Error to the District Court of Allegheny county. The action was assumpsit, in which a verdict was found for the plaintiff for $694.30, subject to the opinion of the Court upon a reserved point, which, together with the facts upon which it arose, are stated as follows by his Honour Judge Hampton :— “ The point reserved by the Court in this case is, whether the plaintiff is entitled to recover under the evidence given by him; the defendants haying withdrawn their evidence by…

<p>Where, in a suit to recover money, the sum was claimed hy a third party, and he voluntarily appeared and interpleaded, and the amount was paid to him hy the stakeholder, there was no error in directing thejury to he sworn between the plaintiff and the claimant, omitting the original defendant.</p> <p>A verdict having been rendered for the plaintiff, the judgment was properly entered against such claimant alone.</p>

The defendant in error brought an action of covenant against the Farmers’ and Mechanics’ Turnpike Road Company, for breach of articles dated 4th January, 1851.

Error, to the Common Pleas of Jefferson county. On the 14th Juñe, 1849, Evans & McCall purchased goods from Corbet and' Means, to the amount of about $3000, which they were to pay in instalments at specified periods, partly in money and partly in “ good obligations” of third parties. A part of the amount was paid in money, and various notes, ñót negotiablé,of third persons handed over, and these were endorsed by Mr. Evans with his own name.

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>This was a scire facias on a mechanic’s lien,. The defendant pleaded “ no lien,” payment with leave, and set-off. On the 13th February, 1854, the counsel of the parties agreed to and signed a case stated, in the nature of a special verdict, which was filed in the prothonotary’s office, and marked upon the docket, and the cause placed upon the argument list. When the cause was called, the case stated could not he found by the officer, and the counsel not agreeing upon its terms, the Court, on' the application of the' prothonotary, appointed an auditor “ to take testimony, and make report as to the contents or purport of said paper.”</p> <p>The auditor gave notice to the parties, took testimony and reported as follows:—</p> <p>“ The following I judge to have been the substance of the agreement, viz.:—</p> <p>“ ‘ It is hereby agreed by the parties to above suit by their attorneys, that the only question to be considered in the argument of the above case shall be whether a contractor or material-man can file a lien against a house and lot, for the erection of which he had furnished work, labour, and materials, the lot being held by the -on a perpetual lease, subject to a ground-rent of $33 .per annum, and that said lien should be good in law, under the Acts of Assembly, giving contractors and material-men liens. If the Court are of the opinion that a perpetual lease, as above stated, is subject to mechanic’s lien for work, labour, and materials furnished in the erection of a building, then judgment for the plaintiff for the amount of his claim in the above number; if not, then judgment for defendants for costs; each party reserving the right of a writ of error.’</p> <p>“ All of which is respectfully submitted.”</p> <p>The above report was filed on the 26th of April, 1854, and ón the 26th of June was “confirmed by consent.”</p> <p>“ January 20th, 1855. — After argument on case stated, judgment on scire facias for the plaintiff, for the sum set forth in the lien, sum due to be liquidated by prothonotary.”</p> <p>Error assigned: The Court erred in entering judgment for the plaintiff on the case stated.</p>

The action below was assumpsit by Wilder & Co. against Clark & Thaw. The defendant’s warehouse in the city of Pittsburgh, in which goods of the plaintiffs to the amount of $4323.28 were deposited, was consumed by fire on tbe 26th June, 1853.

This was an action of covenant brought to recover ground-rent alleged to be due to plaintiff on a lot in the city of Pittsburgh. On the trial of the cause, defendant’s counsel submitted four points in writing, requesting certain instructions to the jury, all of which the Court answered in the negative, and directed the jury to find for the plaintiff, and reserved the points.

The action against the defendants was as common carriers to recover damages for injury sustained by plaintiffs to their goods, between New Orleans and Pittsburgh. The goods were shipped at New Orleans on board the steamboat Concordia, stipulating for reshipment on a good steamboat. The goods were damaged on board the Concordia between New Orleans and Louisville, by perils not within the exception contained in the bill of lading.

This was a scire facias upon a mortgage by William A. V. Magaw against John P. Garrett and J. R. Mills, with notice to John J. Spearman and Benjamin Spearman, terre tenants. The facts of the case, and the points arising on the record, are fully stated in the opinion of his Honour Justice Knox.

The ejeetment. in this ease was brought by Josiah W. (Smith against James Graham, to recover the possession of 100 aeres of land, situate in Jay township,- being part .of tract N.o, 582, The plaintiff claimed title under a judgment entered in the Court of Common Pleas of Clearfield county, on the 1st June, 1841, against Eusebius Kincade, and which was regularly revived, execution issued, the land .in* dispute levied as his property, condemned and sold by the sheriff of…

Error-to the 'Cominoh Pleas of Fayette county. This was an-ejectment for a house aind lot of ground in -Union-town, brought by Nóah Morrison ’aftd-Ann his wife -against William Thorndell, Jr., and others, in which a verdict ’and judgment were rendered for the plaintiff. The facts of the ease, ’and the questions of law arising upon 'the record, are fully and clearly stated in the opinion of the Court.

This was an ejectment brought by William Nelson and others, against the city of Allegheny, to recover an island in the Allegheny river containing nine and three-fourth acres. On the 22d January, 1828, E. G. Nelson, through whom plaintiffs claim, made application -to the land office, under the Act of 27th January, 1806, for a warrant for the said island.

<p>Certiorari to the Common Pleas of Allegheny county.</p> <p>On the 27th day of January, 1855, James W. Hall, Margaret Hall Ms wife [late Margaret Ewing), John Ewing, and Elizabeth Woods, the two former being the children, and the latter the late widow of John Ewing, deceased, now intermarried with Stephen Woods, presented their petition to the Court of Common Pleas of Allegheny county, alleging they were the owners of a tract of land in said county, and that the railroad company had entered upon and appropriated a portion of the said land for the purposes of their road. On the same day the Court appointed viewers, and on the 1st of March following, the report was filed, finding for the petitioners $1500 damages.</p> <p>To this report the railroad company filed exceptions, one of wMch was to the effect,, that the viewers had made no apportionment of the damages among the petitioners, according to their several interests in the land. These exceptions were overruled, and the report of the viewers confirmed.</p> <p>The only exception pressed in this Court, was the one above stated.</p>

<p>Error to the District Court of Allegheny county.</p> <p>The action below was assumpsit by the Chartiers Coal Company, an incorporated body, to recover from its secretary, Carr, the defendant below, |200 retained by him beyond his annual salary, for extra services which he claimed to have rendered the company in numbering, filling, and countersigning coupon bonds issued by the company. The cause being submitted to the Court below upon a case stated, judgment was entered for the plaintiff below; to reverse which the defendant sued out this writ.</p>

<p>If goods are received by common carriers, with orders to “ ship immediately,” and are stored in their warehouse, the navigation being obstructed, and there consumed by fire, they are liable for the value to the owner as common carriers.</p> <p>If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessary to the carriage, and for the purpose of facilitating it, his liability as a common carrier begins with the receipt of the goods.</p>

<p>Where the plaintiff’s claim before the justice was for §25, in trespass, and referees awarded him §11, the defendant has no right of appeal under the Acts of 1814 or 1845.</p>

<p>The estate of a husband in his wife’s lands, is barred by an actual adverse possession of it by a stranger for twenty-one years, during the life of the wife.</p> <p>The death of the wife after the statutory bar has thus intervened, gives him no new right of entry or action.</p> <p>■ Nor can he avoid the bar of the statute by bringing the action during his wife’s life, in their joint names.</p>

<p>Where additional plaintiffs were added, after an appeal by defendant from ■ an award of arbitrators, and a scire facias was sued out on the recognisance reciting a suit, in the names of the plaintiffs, including those added after the appeal, it was held fatal to a recovery on the plea of nul tiel record.</p>

<p>Error, to the Common Pleas of Fayette county.</p> <p>This was a scire facias sur recognisance. An action of partition was brought by Lewis Mitchell against M. W. Irwin and others — the defendants pleaded non tenent insimul. The plaintiff was ruled to enter security for costs, and Shaw, the defendant, entered into recognisance in the sum of one hundred dollars, as security for plaintiff. A verdict and judgment were entered in the partition in favour of the defendants. This suit was brought to l’ecover plaintiff’s costs. A verdict was rendered for the plaintiff, subject to the opinion of the Court, whether costs were recoverable in the cause. The Court below (Gilmore, P. J.) entered judgment for the plaintiff on the verdict.</p> <p>This was assigned for error.</p>

<p>Error to the District Court of Allegheny county.</p> <p>Tbis was an ejectment brought by Benjamin Ramage to recover from Philip Peterman about three acres of land lying in Jones’s district of the depreciation lands. The plaintiff was the owner of tract No. 12; the defendant, of tract No. 18. The land in dispute was included within the lines of both tracts. The title to the depreciation tracts dates from the patent. The defendant’s patent for No. 18 was dated 30th August, 1786; the plaintiff’s, for No. 12, on the day following.</p> <p>The Court below (Williams, J.) instructed' the jury to find for the defendant. The jury returned into Court with a verdict in favour of the plaintiff. They were thereupon instructed by the Court to retire and reconsider their finding, and having done so, brought in a verdict for the defendant.</p> <p>The counsel for the plaintiff objected to sending the jury out a second time, and requested to have the verdict recorded as the jury had returned it; which the Court overruled.</p> <p>The instruction to find for the defendant, and the refusal of the Court to record the verdict as the jury first brought it into Court, were the errors assigned.</p>

<p>In proceedings under the Act of 3d April, 1830, relative to landlord and tenant, the affidavit of the defendant that the title to land will come in question, will not oust the jurisdiction of the justices; it must he proved like any other fact in the cause.</p> <p>Where the judgment of the justices is affirmed on certiorari, it becomes a judgment of the Court of Common Pleas, from which the writ of habere facias possessionem may issue.</p>

<p>Appeal from the decree of the Orphans’ Court of Allegheny county.</p> <p>The facts of the case are fully stated in the opinion of the Court.</p>

Ejectment for three hundred acres of land brought by Samuel Raiman against William Henry. Henry Woods and Henry Clymer were the holders of the legal title to the land in controversy; and, on the 5th March, 1825, demised the same to Peter Henry, on an improvement lease for seven years.

This was an attachment execution, issued by Raiguel & Co. upon a judgment for $2611.52, obtained by them against Joseph M. Elliott, in which Erancis B. McConnell was made garnishee. The answer of the garnishee to interrogatories filed, and which was the only evidence in the cause, disclosed the following facts: That Elliott, on the 2d October, 1854, executed to garnishee a general deed of assignment for the benefit of creditors, which had never been recorded.

Woodwell was the owner of 160 shares of stock in “ The Bluff Mining Company of Michigan.” The company had made various assessments on the stock, the defendant’s share amounting, at the bringing of the suit, to $344, to recover which this action was instituted. The defendant filed an affidavit of defence, but the Court, deeming it insufficient, rendered a judgment for the plaintiff. The defendant sued out this writ, and assigned the action of the ■ Court for error.

District Court of Allegheny county. This was an action of assumpsit brought by William' Holmes & Co. against Charles A. Israel and others, owners of the steamboat “ Susquehanna,” for .the loss of ninety-six hogsheads of sugar, shipped by Holmes & Co., upon the said steamboat, from Cincinnati to Pittsburgh, upon a bill of ladng, exceptiing the unavoidable dangers of the river and fire.

' The real estate of William Everhart was sold at sheriff’s sale, and John F. Wright, the appellant, became the purchaser at the sum of $25,700. Upon this purchase he paid, at the sale to the sheriff, $400, but failed to pay the residue. The sheriff returned that, he having failed to comply with the terms of sale, the property remained unsold for want of buyers. At the resale, it was sold to J. K. Moorhead for the sum of $19,-800.

<p>Error, to the Common Pleas of Greene county.</p> <p>This was a scire facias on a recognisance in the Orphans’ Court. Joseph Ball, deceased, in his lifetime was possessed of several tracts of land in the county.of Greene, and in 1835, upon petition of some of his heirs, a writ of partition and valuation was awarded, and upon an appraisement returned one of the tracts was awarded to Mark Custer, who entered into recognisance with Lot Lantz as his surety in the sum of $2000, to secure to the heirs of the said Joseph Ball, deceased, the sum of $932, the price at which the said tract had been valued by the Inquest. On the 4th day of June, 1839, the legislature passed- an Act in reference to the real estate of the said Joseph Ball, authorizing the administrator to receive the proceeds and distribute them according to the interests of the several heirs or claimants. The suit was brought in the name of the Commonwealth for the use of Stephen Caldwell, administrator de bonis non of Joseph Ball, deceased. Mark Custer claimed to be an heir of the decedent, and as such entitled to a portion of the proceeds which it was contended should be deducted from the claim of the plaintiff. The amount of his interest did not appear.</p> <p>The defendant’s counsel requested the Court to charge the jury “ that the administrator of Joseph Ball, deceased, cannot recover, the terms' of the recognisance being to pay to the heirs;” and “ that the defendants may retain and hold from this recognisance the'amount of the shares they hold either by descent or purchase.” The Court (Gilmore, P. J.) charged the jury as follows :—</p> <p>“ The Court charge you, the plaintiff is entitled to recover notwithstanding the wording of the recognisance, and that the defendant is' not entitled to deduct from the recognisance what might be his purpart. The Act of Assembly of 4th June, 1839, was passed expressly for the purpose of relieving the Court and jury from the difficult and almost impossible duty of ascertaining the heirs to said estate, and to what each was entitled. This duty has been committed by said Act to the administrator, and we feel disposed to leave, it to him.”</p>

Error, to tbe Common Pleas of Cambria county. This was an ejectment for 80 acres of land. The plaintiff, Burke, claimed under a treasurer’s sale of a larger tract, of which this is a part, made in June, 1816, to James Rhey. The original warrant was in the name of George Messersmith, and in 1814 and 1815 the land was assessed with taxes, for the non-payment of which it was sold.

The action below was debt upon a note under seal. In 1851, James Wade, the defendant, being engaged in erecting a mill, to which he designed to apply both water and steam power, engaged Haycock to perform the millwright work for him, at a stipulated price. Haycock professed to be a practical millwright. Before the work -was completed he left, hut procured another millwright to proceed with the work and finish it.

This was a scire facias at the suit of the bank against George A. Creacraft and Thomas Carson, drawers, and John Marshall and Adam Carson, endorsers. In 1846, Creacraft and Thomas Carson were extensively engaged in the bacon and lard business, and the defendant Marshall, with others, had endorsed for them largely in the bank.

This was an ejectment brought by McDowell against Jennings, to recover tract No. 1155, in District No. 6, of “ donation land.” This tract of land, on tbe 19th October, 1786, bad been allotted to David Jacobs, a private in tbe Pennsylvania line. In 1842 and 1843, it was assessed with taxes; and sold in 1844, by tbe treasurer of tbe county, to McDowell, tbe plaintiff.

This was an action of assumpsit to recover the value of 12 tons of pig metal. In 1846, the plaintiffs, Wilson, Campbell & Willards shipped from Greenupsburg, in Kentucky, 70 tons of pig metal, on the steamboat Waverley, to be delivered to Michael Allen & Co., Pittsburgh.

The action in this case was commenced by foreign attachment, and was brought to recover the amount of a judgment which Hook held against a man by the name of Cumpston. Strawn, the defendant, had purchased a house and lot from Cumpston, upon which Hook’s judgment was a lien, and Hook alleged that Strawn, in consideration of an extension of time, agreed to pay the amount of it to him. These transactions took place in 1841 or 1842.

This was an action of debt brought by Christina Minesinger against the executors of Samuel Patton, deceased. Patton had been the administrator of Joseph Minesinger, a son of plaintiff; and settled his account, in which a balance of $1612.16 was ascertained to be in his hands. This suit was brought to recover a balance due, part of the above-stated sum.

<p>He who claims a special privilege, or the right to be tried before a special tribunal, and in a special form, must submit to a strict construction of his right, and pursue strictly the forms prescribed.</p> <p>A report of viewers, appointed under -the 4th section of the Act of 27th March, 1848, supplementary to the charter of the Pennsylvania Railroad Company, which omits to state the quality and value of the land taken, is fatally defective, and will be set aside.</p> <p>It is not essential to the validity of the proceedings, that the owner of the land to be taken should have notice of the presentation of the petition, and the appointment of viewers.</p>

<p>Error to the Common Pleas of Cambria county.</p> <p>The action was ejectment to recover a tract of land containing 220 acres. Michael Moyers and Elizabeth Moyers, the plaintiffs below, were the owners of the land for which this action is brought;' it was situated on the Allegheny Portage Bailroad, was coal land, and had one or more drifts opened upon it, with some of the fixtures necessary for mining and. loading coal. On the 29th January, 1852, they leased and demised to William Tiley, “their coal-bank and the appurtenances thereunto belonging, together with a privilege of timber for use of coal-bank, for and during the term and space of ten years, commencing from and after the 1st day of March, 1852, and to continue until fully complete and ended.” Tiley, the lessee, was “ to put the coal-hank in good working order for the rent of the first year, and to pay the second and third years one-quarter of a cent per bushel for each and every bushel of coal taken from the said bank, and for the remaining seven years, one half-cent per bushel for each and every bushel taken.” The agreement contained (amongst other things) the following clauses: “ It is further agreed that the said Tiley is to have the privilege of right of way for a more direct railway, provided it does not interfere with any of the buildings on the land of the said Moyers, together with the privilege of building one or more houses or shops for use of said bank, and to occupy them for the term of the lease, free of rent, and to leave them in good order; the buildings to be substantial. It is mutually agreed that if the said coal-bank should stand, by the act of the said Tiley, for one year when it would give coal, it is to be taken as an abandonment of the lease, and to be treated accordingly. It is further agreed that the said Tiley is to leave the bank in good working order; the main gangway to be left open, or in such order so as not to interfere with the taking out of coal after the expiration of this lease; and no other person or persons is to have the privilege of taking any coal from said bank without the consent of said Tiley first had and obtained in writing.” The tract of land in which the coal was found contained 220 acres. It had two openings or coal-drifts upon the tract proper: one denominated in the testimony the Russell drift, and the other the drift above the “ limekiln.” There was a third opening, called the “ O’Neil” drift, starting on an adjoining tract of land, and connecting with or intersecting the Russell drift on the Moyers’ tract.</p> <p>The tract of land upon which this last drift started was in the occupancy of a tenant by the name of Pox. Tiley having failed in an effort to purchase Pox’s lease, purchased the land from the owner, Ross. The Russell drift, through which Moyers’ coalbanlc had been worked, connected with the old Portage Railroad; and it was alleged that this drift became impracticable, by the altered location and grade of the new railroad, and the removal of the old one. Tiley then abandoned this Russell drift, and opened one on his own land, which communicated with the coal on the Moyers tract, and in this way continued taking coal out of ' his own and Moyers’ land.</p> <p>The plaintiffs contended that, by the terms of the lease, the “ coal-bank” referred to the openings or drifts upon the land at the time of the lease, and the defendant not having used or worked them for a year, from the 1st March, 1853, to the 1st March, 1854, brought this action of ejectment to enforce the clause of forfeiture contained in the lease.</p> <p>The defendant contended that all that he had done in the changes of working the coal-mines had been with the knowledge, acquiescence, and advice of the plaintiffs. And also that the true construction of the lease was, that he might take coal from the land at any point, or by any mode most convenient and accessible.</p> <p>The Court below (Taylor, P. J.) instructed the jury, that if the plaintiffs acquiesced and agreed to the manner in which the defendant had conducted the mining operations, they could not recover; but if they had not done so, the failure to mine coal through the bank opened on the premises at the time of the lease for an entire year, would be a forfeiture of the lease.</p> <p>The jury found for the plaintiffs.</p>

This was an ejectment for 3§'0 acres of land, brought by James Downing and others agains't George Kribbs and others. In 1801, or 1802, a man by the name of Samuel Parker commenced an improvement on the land in dispute. He deadened some trees and commenced the building of a cabin, but had no residence or cultivation on the land.

This ejectment was brought by John. Porter against Andrew Dougherty to recover the possession of a tract of land containing 100 acres. The title was originally in John Beacam, whose daughter was intermarried with James Porter, the father of the plaintiff. At the instance of Beacam, James Porter and his wife went on to a tract of land belonging to Beacam in Allegheny county.

<p>Error to District Court of Allegheny county.</p> <p>This was an action of trespass on the case, by John Anderson against James Wood, commenced bn the 16th January, 1845. Ohthe 7th March, 1845, the plaintiff filed his declaration in tort, complaining that he, being a partner in the Globe Cotton Fa'ctory, and having contributed $800 to the capital stock, was wrongfully excluded from the partnership arid business by Wood, his co-partner, with a loss of his capital stock and wages. This 'declaration being demurred to, an fimerided count was filed, to which the defendant also demurred. On the 10th March, 1849, the opinion of the Court was filed, which concluded thus: — “ For these reasons the demurrer is sustained, and judgment thereon in favour of the defendant.”</p> <p>On the 12th 'August, 1852, the plaintiff’s counsel, by leave of the Court, filed an aruended declaration: in the two counts of which he declares upon a contract for the voluntary dissolution of the partnership, and alleges that by that contract Wood agreed to pay him his $800 of' capital and arrears of wages.</p> <p>The defendant’s counsel moved to strike out this declaration, on the grounds.:—</p> <p>1. That the same was irregularly and improperly filed, and</p> <p>that leave to file the same was improvidently and irregularly granted. . ■ .</p> <p>2. That the cause of action set forth in said amendéd declaration, is another and different carise of action from that on which suit was brought, and for which the plaintiff, in his original and first amended declaration counted.</p> <p>3. That the cause of action in said amended declaration, filed on the 12th of August, 1852, is in assumpsit, on promises, whereas the action and original declaration sounds in tort.</p> <p>This motion was overruled.</p> <p>The defendant was ruled to plead, and, on the trial, a verdict was rendered for the plaintiff for $1304. To reverse which, the defendant sued out this writ of error.</p>

<p>Error to the Common Pleas of Somerset county.</p> <p>An action was brought by King & Schrack against Sarah Rowen, before a justice of the peace, to recover a debt which the ■ defendant’s son owed the plaintiffs. Mrs. Rowen employed a man by the name of Garrison Smith to attend to the suit as her agent, and he employed counsel to appear before the justice and make defence. On the day of appearance Smith, and the counsel of Mrs. Rowen, and the plaintiffs and their counsel, appeared before the justice. After some proceedings and convérsation among the parties it ivas stated that judgment should be entered for the defendant. Her counsel then retired, but ascertained afterwards that Smith had confessed a judgment against the defendant for $93.95. He applied to the justice to open the judgment, which was refused, and the defendant then appealed. The appeal was entered in the Common Pleas on the 20th January, 1855, to February term; On the 27th August, 1855, at the third term after the appeal, a rule was granted 'to show cause why the appeal should not be quashed; which rule was made absolute on the 18th September following. To reinstate the appeal this writ was sued out by the defendant below.</p>

Tbe plaintiffs, John Watt & Co., were merchants, doing business in tbe city of Pittsburgh. Tbe defendant resided in Jefferson county, and purchased goods from tbe plaintiffs. On tbe 22d of January, 1850, tbe defendant gave to the plaintiffs a single bill, with J. P. Hoch as surety, with warrant of attorney to confess judgment for tbe sum of $2219.21, payable one day after date, which was entered in the Court of Common Pleas of Jefferson county, on tbe 1st February, 1850.

This was an ejectment for 106 acres of land in Columbus township, Warren county. Both parties claimed under Appollos Terry. The plaintiff, by a conveyance from Terry, dated 22 d January, 1847.

' Error to the District Court of Allegheny county. This was an action of ejectment brought by the executors of John M. Hood, deceased, against Mary and others, children and heirs at law of McClelland Hood, deceased, to recover the possession of a tract of land situated in Ohio township, Allegheny county, called “.Safe Landing,” containing 226 acres.

<p>Where a vendor gave to his vendee a bond conditioned to indemnify the latter against any claim or encumbrance affecting the premises, and to “pay all costs, charges, or expenses necessary to defend the said premises against any such claimsthe obligee is entitled to recover on the bond the amount paid counsel, and other necessary expenses of defending an unsuccessful ejectment brought against him for the premises.</p> <p>Where the vendor had notice of the ejectment brought against his vendee, and an appearance was entered in the cause at his instance, and he was requested by the counsel of the vendee not to interfere in the defence, as his connexion with it might be prejudicial, but he and his counsel assisted in the preparation and trial ■ of the cause, the obligee would not be barred from recovering on the bond the amount paid his counsel for defending against such ejectment.</p> <p>Where a witness is called to prove the value of the services of an attorney in a certain cause, it is not relevant to ask the witness on cross-examination how much he had paid counsel for their services in a suit in which he had been a party.</p>

C. H. Armstrong and James Potts were partners, and being indebted to Jeremiah Platt, gave him a note for the amount, with Hugh Himblewright, the brother-in-law of Potts, as security. In 1851, about the time the note matured, Armstrong & Potts dissolved partnership, .and Potts agreed to pay this note; Platt consented to the arrangement, and Armstrong’s name was to oe taken off the note.

Appeal^fi-om,.the:,décíee off the.,Court of Common, Pleas,-off Armstrong-county The case is fully stated in the opinion of his- Honour, Mr. Jus tice Knox.

Plea3 of Westmoreland county, distributing the proceeds of the real estate of Michael W eaver. On the 18th January, 1853, David Milliron obtained a judgment against Michael Weaver, upon which & fieri facias was issued, and levied on the real estate of Weaver. After the levy, on the 11th December, 1854, Weaver gave the sheriff notice that he claimed the benefit of the exemption law. The appraisers returned that the, property could not be divided.

The action was ejectment, and was instituted to recover the balance of purchase-money due on an article of agreement. The land in controversy was a tract of 82 acres, situated in Washington township, Clarion county, and on which “ Hemlock Furnace” was erected.

This was an action of covenant brought by Oliver Evans against James Hendrickson, on the following article of agreement:— “ Article of agreement, made this- sixteenth day of July, A. D. one thousand eight hundred and fifty-one, between Michael Dravo, John F. Dravo, James it.

This was a proceeding at the instance of the Pennsylvania Railroad Company, under the Acts of Assembly incorporating and regulating the same, to ascertain the damages sustained by the plaintiff in error (O’Hara) by reason of the appropriation by the said company of certain lands lying in the 9th ward of the city of Pittsburgh, for the uses of the said company.

This suit was brought on three several single bills, signed and sealed by John Weaver, payable to Henry J. Eitenour or order, amounting in all to §557, and assigned by Eitenour to John W. Lynch. These notes were given by Weaver to Eitenour in part payment of a tract of land purchased from Eitenour on the 80th of April, 1849.

This was a feigned issue directed by the Register’s Court of Washington county to the Court of Common Pleas, to try the validity of a certain paper purporting to be the last will and testament of Robert Clark, deceased. Robert Clark, at the time of making the alleged will, was an aged and feeble man; he had three sons and five daughters, all of whom were married except his sons Andrew and David, who resided with their father.

This was an action of ejectment at the suit of James Barr and others, heirs of James Barr, deceased, against James Sample and others, to recover the possession of a tract of land containing 100 acres. The parties agreed upon the following case stated, with liberty to either party to sue out a writ of error. James Barr, the father of the plaintiffs, died on the 15th day of August, 1833, seised of the land in dispute.

This was an action of ejectment brought by Leah Kelly against Samuel Kelly, for a tract of land in Wolf Creek township, Mercer county, containing 150 acres. It was admitted that the title to the land in controversy had been in David Kelly — that the plaintiff, Leah Kelly, was his mother and sole surviving parent, and that David Kelly died without issue, but leaving his mother, Leah Kelly, and brothers and sisters, of whom the defendant, Samuel Kelly, was one.

This was an appeal from the order of two justices of the peace, removing Ann West, an alleged pauper, from the township of Cumberland to the township of Jefferson, in the county of Greene. On the 26th of July, 1853, by an order of relief of. two justices of the peace, she became chargeable on the township of Cumberland.

Error, to the Common Pleas of Somerset county. This was an ejectment by the heirs of Solomon Sutter against Henry Landis, for a tract of land containing 200 acres. The facts of the ease are accurately stated in the opinion of his Honour Kimmell, P. J. “ The heirs of .Jacob (Ressner conveyed the land in dispute, on the 2d May, 1883, to Solomon Sutter and Henry Landis.

This was an ejectment brought by Thornton L. Moore and Dorcas his' wife against Abraham Fulton, to recover the one undivided third part of a tract of land in Carroll township, Washington county, containing one hundred and eighty acres. The wife of the plaintiff below, Dorcas Cooper, now Moore, was the daughter of one of the legatees under the will of John Cooper, deceased, under whom both parties claim.

This was an action of debt, brought by Jacob Kiester and Harriet his wife, before a justice of the peace, to recover from George and Jacob Miller, one year’s rent, alleged to be due on the 1st of October, 1853. On the 14th day of February, 1852, Mrs. Kiester leased the premises to the defendants, by a lease under seal, for the term of three years, at the annual rent of $75, payable on the 1st of October of each year.

Error, to the Common Pleas of Washington county. Jobn Pattispn brought this action to recover from James Bell and-James Hplmes 120 acres of land, part of a larger tract called “ Star Port,” containing 400 acres.

<p>Error to tbe Common Pleas of Columbia county.</p> <p>This was an ejectment brought by James Rittenhouse and John Thompson against Barney Hole. The plaintiffs claimed under two warrants dated 11th January, 1793, to Aaron Levy and Mary Weed, the surveys on which were made on the 2d August, 1793, and patented to Walter Stewart 24th March, 1794. The title became vested in Jesse Roberts, who, in 1818 or 1819, moved into a house which stood^n the division line between these two tracts, and continued to reside there until his death, in 1841. His wife and children remained there until the 25th April, 1850, when they conveyed to the plaintiffs. At the time Roberts went into possession, there was a clearing of about twenty or thirty acres, a part being on each of the tracts. Roberts cleared some twenty-five or thirty acres more.</p> <p>The defendant below gave no evidence of title in himself, but showed a warrant to John Graeff, dated 10th May, 1785 — a survey in pursuance of it on the 17th November of the same year, for 409-J acres, and returned for patenting 27th April, 1787. And that he entered in 1847 or 1848, and built a house, &c., within the lines of the John Graeff survey.</p> <p>The Levy and Weed surveys interfere with, and lie across the survey of John Graeff, and the defendant’s house and improvement is within that part of the interference embraced in the lines of the Mary Weed survey.</p> <p>No part of the clearing or improvement made on the Levy and Weed surveys were within the interference with the Graeff tract.</p> <p>The plaintiffs claimed to recover so much of the land as is contained within the lines of the Aaron Levy and Mary Weed surveys, by virtue of the statute of limitations; alleging that the actual possession of those under whom they claimed, of any part of those tracts, gave them the possession of all the land within the lines of their surveys; there having been no actual possession of any part of the Graeff survey, by any one claiming under it.</p> <p>The instruction of the Court below (Conyngham, P. J.) was in accordance with the views of this Court as reported in Waggoner v. Hastings, 5 Barr 300.</p>

<p>Error, to the Quarter Sessions of Bedford county.</p> <p>This was an indictment for erecting and maintaining a nuisance.</p> <p>The town of Bedford was laid out by the Penns in 1766, and on the 9th January, 1793, they conveyed a number of lots adjoining the town to Hugh Barclay, with the following reservation: “ excepting and reserving nevertheless out of the said 7J acres, 1 acre thereof, including the springs, for the use and benefit of the inhabitants of the town of Bedford, particularly for supplying their general pump with water.” The authorities never laid off the acre until 1853 or 1854; but they took possession of the springs, and had the water conveyed by pipes into the town. The barn complained of as a nuisance was built on the land conveyed by the Penns in 1841, by S. M. Barclay, who was then the owner of the land, and adjacent to the springs. He died, and by his will devised this land to S. M. Barclay, one of the defendants in this prosecution, and other children of Dr. E. B. Barclay. Rise-ling; the other defendant, was a tenant under the devisees.</p> <p>The indictment charged, that the defendants had erected a barn near to and above these springs, and that, by the storing of hay. straw, and other vegetable matter in the barn, and the feeding of the same to the defendant’s cattle, and the keeping cattle there, the water of the springs was rendered impure and corrupted, and unfit for use.</p> <p>The second laid that the barn had been built by S. M. Barclay in his lifetime, and that by reason of keeping his cattle, &c., there, the waters of the springs had been corrupted and rendered impure, and that the defendants maintained and continued it to the common nuisance, &e.</p> <p>The defendants pleaded not guilty.</p> <p>The jury found the defendants guilty on the second count, but not guilty on the first count.</p> <p>The Court sentenced the defendants to pay a fine of |1 — pay the costs of prosecution, and be in custody until the sentence be complied with, and commanded the sheriff of the county to abate the nuisance by removing the barn. '</p> <p>Errors assigned: 1. The Court erred in directing the nuisance to be abated by the sheriff.</p> <p>2. Also in commanding him to do so by removing the barn.</p>

<p>One trial and judgment in an ejectment to enforce or rescind a contract for the sale of land, is conclusive of the rights of the parties, whether the judgment was entered on the verdict of a jury, or on an award of arbitrators.</p>

<p>A conveyance of property, to be fraudulent as to creditors, should bear such a ratio to the indebtedness, as to tend directly to defeat the claims.</p> <p>Where the attesting witnesses to a deed proved that no money was paid in their presence, at the time of its execution; the vendor being indebted to an amount equal to one-fourth the value of his property, the bulk of which was included in the deed; and the creditors being in pursuit of their claims, and numerous suits pending against him; and notice having been given to the vendee that he would be required to prove a consideration; it was Held that it was incumbent upon the vendee to prove a consideration by other evidence than the vendor’s receipt.</p> <p>A party to a suit cannot read in evidence his own answer to a bill of discovery filed in aid of the action.</p> <p>A copy of a record from another state, certified to be a copy of tins judgment roll, is sufficiently certified.</p>

<p>Error to tbe Common Pleas of Schuylkill county.</p> <p>These cases arose upon feigned issues directed by the Court under the following circumstances. Marcus G.' Heilner and Percival Heilner confessed a judgment to John Brock for the use of Samuel Heilner, John Brock, Sons & Co., on the 5th of August, 1853, for the sum of $32,700, payable on demand. A. fieri facias was issued and a levy and sale made of the personal property of the Heilners, consisting principally of property used at the coalmines on the premises leased by them as hereinafter stated. The defendants in the foregoing judgment and execution were coal operators, and on the 24th of June, 1846, had leased from Anthony F. Miller and Jacob Hoffman, a tract of coal land containing about 500 acres, for the term of 20 years, for the purpose of mining, at the rate of 35 cents per ton, payable monthly. The lessees covehanted to “ mine and take out not less than 32,000 tons of coal from the veins of said tract in each and every year during the term of the lease.” And in case of failure were to pay for that number of tons, unless the veins should prove faulty, with an option in the lessors to forfeit in case of failure; .the lease also contained a right of distress for rent in arrear. The lessees took possession, and on the 10th of February, 1851, a supplemental lease was made, by which the quantity was increased from 32,000 to 50,000 tons, and the rent was reduced’ from 35 to 27 cents per ton. After the execution of this supplemental lease, Jacob Hoffman conveyed his interest in the land, and assigned his interest in the lease to Benjamin Tyson, A. M. Sallade and H. H. Muhlenberg. And Anthony F. Miller conveyed a portion of his interest in the land and lease to H. A. Muhlenberg, since deceased.</p> <p>When the proceeds of the sheriff’s sale were brought into Court for distribution, the owners of the leases presented their petition to the Court, setting forth the lease and claiming a year’s rent, suggesting that the facts whether the said rent or any part thereof is due, and also, whether, if due, the said claimants are entitled to receive the same out of the said proceeds of sale, are disputed,” and praying the Court, to direct issues to try the said facts. The Court directed the issues. No further issues were formed in the cases, and they were tried without any pleadings.</p> <p>The Court below- (Hegins, P. J.) charged- the jury, that' upon the whole evidence' the plaintiffs in each case,.the-execution-creditors, were entitled' to recover $4980.45, and declined to answer the points submitted by the counsel for the landlords.</p> <p>Whereupon the defendants below sued out this writ, and assigned the charge for error.</p>

This was an action on the case brought by Solomon Dorney against Charles Mertz, for flooding the water back on the plaintiff’s land. Dorney is the owner of a tract of land in South ‘ Whitehall township, Lehigh county, lying on Cedar Creek; and the defendant owns a tract of 23 acres adjoining the plaintiff below, on which are erected a grist-mill and the dam in question. Both parties traced their titles back for many years.

This was a scire facias on a mechanic’s lien. In February, 1852, the defendant, Henry Gaule, rented from Eli K. Price, a certain lot in the city of Philadelphia, for the term of seven years, from the first day of April next ensuing the date of the lease, for the first three years, at a yearly rent of $150 per annum, and $200 per annum, for the remainder of the term, payable quarterly, with the right and privilege on the part of the said Gaule to take upon ground-rent, at any…

<p>Certiorari to the Court of Quarter Sessions of Montgomery county.</p> <p>On the 16th May, 1853, a petition was presented to the Court praying for the appointment of viewers to lay out a road in Lower Salford township, upon which viewers were appointed. A report was made in favour of the road, and, on exceptions filed, the proceedings were set aside. On the 20th of February, 1854, another petition was presented, which described the road as follows:—</p> <p>“ Beginning at a point in the Skippack road, on the dividing line of lands of Abraham Ziegler and Michael Ziegler, Sr., thence by the nearest and best route until it intersects a public road leading from the Springhouse and Sumneytown turnpike-road, from near gate No. 4, on said turnpike, to Alderfer’s Mill, upon the dividing line of lands of Isaac 0. Alderfer and Abraham Alderfer, in the said township.”</p> <p>The viewers were appointed, and an order to view was-issued to them, returnable to the succeeding May Term, but no report was ever made on this order.</p> <p>On the 14th April, 1854, a new petition, signed by the same persons, was presented, praying for an order to view a ro^d as follows:—</p> <p>“ Beginning at a point in the Skippack road, on the dividing line of lands of Abraham Ziegler and Michael Ziegler, Sr., thence by the newest and best route until it intersects a public road leading from the Springhouse and Sumneytown turnpike-road, from near gate No. 4, on said turnpike, to Alderfer’s Mill, upon lands of Isaac 0. Alderfer, at a point-between Alderfer’s School-house and said turnpike-road, in the township of Lower Salford, aforesaid.”</p> <p>The Court, without taking any action on the previous petition, and order, appointed viewers upon this latter petition, and an order issued to them, which was also returnable to May Term. On the 15th of May, 1854, the viewers reported in favour of the road as prayed for in the petition. This report was approved by the Court, and the road ordered to be opened thirty-three feet in width.</p> <p>On the 21st August, 1854, exceptions were filed and a petition for a review also; the exceptions were afterwards overruled, and a review awarded, which also reported in favour of a road, and the original report was finally confirmed by tbe Court. Isaac 0. Alderfer, wbo resisted tbe laying out of tbe road, sued out tbis certiorari.</p> <p>Tbe principal question made in tbe Court below and in tbis Court, was that tbe proceedings were irregular and illegal, and that tbe order of tbe 14tb April could not issue to lay out tbe road while tbe previous order of tbe 20tb February was pending.</p>

<p>Error to tbe Common Pleas of Lehigh county.</p> <p>TMs was a scire.facias on a judgment. On the 25th day of ■ November, 1847, John H. Romig was- indebted to Maria Hoch, the plaintiff, in the sum of $300, and on that day executed to her •a judgment-bond for the amount, with James-Weiler :as his surety. This judgment ivas entered in the Court of Common -Pleas of •Lehigh county, to November Term, 1847. And this scire facias is sued out-against-Romig and Weiler to revive that ..judgment. Before the jury were sworn John H. Romig confessed a judgment to the plaintiff, and the cause proceeded as/to Weiler'-the surety alone. On the trial the plaintiff gave in evidence the bond and judgment.</p> <p>The defendant, to maintain the issue on his part, proved that before the 29th of-December, 1849, he had given notice to the plaintiff to proceed and' “ collect his" money, as he would be bail no longerand that by arrangement ^between the parties, it was afterwards agreed'that-Hoch should have till the 1st of April, 1850. The debt-remained unpaid on the 1st of April, 1850, and on the 6th of .that month, Hoch made - an assignment of all his property for the benefit of his creditors,, the inventory of which amounted' to "$8280.34, of which $1090.33' was personal property. -The pro rata dividend received by the-plaintiff under-the assignment was $67.94.</p> <p>The Court below (McCartney, P. J.)un'structédthe jury as - follows:—</p> <p>“ Formerly the surety had to get a decree in chancery--that the •creditor sue (or''take out execution against) the principal: 1 Watts 146.</p> <p>“In Pennsylvania-we substitute notice for the decree in ckan- - eery: Cope v. Smith, 8 Ser. & R. 115.</p> <p>“ The notice should be as explicit as -a decree that the creditor sue or execute the ■ principal: Erie- Bank- v. Gibson, 1 Watts 147; Greenawalt v. Kreider, :3 Barr 267, 264.</p> <p>“In tbmpresent case there-is -not'that explicit direction to proceed that the law requires in order to relieve the surety.”^</p> <p>The jury found for the plaintiff, and the defendant brought the record up on this writ,-and assigned for error:—</p> <p>1. The Court erred in that part of their charge, in which they say that “the notice "should be-as explicit as-a decree that the Creditor- sue or execute" the principal.”</p> <p>2. The Court also 'erréd in saying ''thdt' “ in the present case there is not'that explicit'dir'ection to. proceed that the law'requires, -in order'-to-relieve- the -surety.”</p>

<p>Error to the Common Pleas of Chester eownty.</p> <p>This was an action on the case brought by Jacob Baugh v. Charles M. Wheatley, under the following circumstances: The plaintiff was a tanner, and resided in Schuylkill township, Chester county, a short distance from Phoenixville. He occupied, as a lessee for years, a tanyard, with its appurtenances, comprising about an acre of ground, from 1824 or ’25 to 1853, and carried on his business during the whole of that time. Upon the property which he thus occupied was a spring of water, which he constantly used for the purposes of his business. A valuable copper-mine having been discovered on the adjacent farm of the late Judge Morris, arrangements were made for working it in the year 1852. A shaft was sunk to some depth, and a small engine set to work ■to pump out the water, which interfered with the operations of the miners. In September, 1853, a larger and more powerful engine was procured, by which the amount of the water pumped up out of the mine was greatly increased. About two weeks after this new engine began to work, the tanyard spring ceased to flow. The engine continued to work till the 13th of January following; it then stopped. Two weeks afterwards the water of the tanyard spring began to flow with its accustomed volume. About the 1st of February the engine started again, and about the middle of the month the water- again left the spring head. In the following June the operations of the mine were suspended, and soon after the water began to flow at the spring as formerly, and continued to do so till the time of the trial.</p> <p>The shaft is about 550 yards from the spring, in a south-east direction. The surface of the ground, at the shaft, is some fifty feet higher than at the spring, and is the highest in that immediate neighbourhood. Several other mines were in operation at the same time with the Morris Mining Company, within two miles’ distance, on lower ground, and with deeper shafts.</p> <p>The suit was brought against Mr. Wheatley, as agent of the Morris Mining Company, to recover damages for the injury which the plaintiff sustained by the loss of the water of the tanyard spring, in his tanning business.</p> <p>The defendant insisted,</p> <p>1st. That no action could, under the circumstances, be maintained against him.</p> <p>2d. That the owner of land through which water flows in a subterranean course, has no right or interest in it, which will enable him to maintain an action against one who, in carrying on mining operations on his own land, in the usual manner, drawp away the water from the land of the first-mentioned owner; and that therefore the plaintiff was not'entitled to recover.</p> <p>The plaintiff submitted the following points:—</p> <p>1. Streams of water are intended for the use and comfort of man. Every occupier of lands has a right to the use of water which flows in the stream on his lands, without diminution or alteration.</p> <p>2. Where a stream of water rises on a man’s land, and flows off upon the surface, and said spring and stream of water has been occupied and used uninterruptedly for twenty-one years and upwards for domestic, agricultural, or manufacturing purposes, the adjacent proprietor has no right to anything upon his own land which intercepts and cuts off the subterranean' streams or trapdykes, which supply the said spring and stream.</p> <p>8. If a person sinks a shaft upon his own lands for mining purposes, and pumps up large quantities of water out of the shaft, so that an ancient spring and stream of water in the adjoining lands of another proprietor, is wholly dried up by reason of the mining operations intercepting the underground streams, which fed the said spring and stream, it is actionable.</p> <p>4. It is a principle of the common law that the proprietor of land, unless restrained by covenant or custom, has the entire dominion not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it, .with this qualification to his dominion, that he must so use his' own as not to injure the property or impair any actual existing rights of another.</p> <p>5. The plaintiff, and those before him, having used the spring and stream of water therefrom, in the manufacturing of leather, for more than twenty-one years, the law presumes a grant of the privilege, so as to control the adjoining owner' of land in the use of his own property, in any manner that shall interfere with or defeat the grant thus supposed to be made.-</p> <p>6. If the jury believe from the evidence that-the defendant, by Ms mining operations on the adjoining lands, cut off underground streams, which percolated and ran into and made the spring and stream of water used by plaintiff at and in his tanyard, so that said stream of water was taken away, and plaintiff deprived of its beneficial use, he is entitled to recover damages commensurate with the injury he has sustained. .</p> <p>The defendant’s counsel also requested the Court to charge as follows:—</p> <p>1. No action lies against a manager or agent of a company for damages done by persons working for said company, in sinking a shaft in a mine by which damage is done to a neighbouring landholder’, where such damage was not necessarily incident to the work, or where it has been caused by the negligence or unskilfulness of the operatives.</p> <p>2. The owner of land through which water flows in a subterranean course has no right or interest in it, which will enable him to maintain an action against one who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner.</p> <p>3. The plaintiff has shown no cause of action that will entitle him to recover in this case.</p> <p>The Court below (Haines, P. J.) affirmed all the plaintiff’s points — and affirmed the first point put by defendant’s counsel, and negatived the second and third propositions.</p> <p>The jury found a verdict for the plaintiff for $175 damages, and the defendant removed the record by writ of error to this Court, and assigned for error the foregoing instructions to the ■jury.</p>