Volume 26 — Pennsylvania State Reports

<p>A petition for habeas corpus will be denied when it appears by the petitioner’s own showing that he is legally confined.</p> <p>Upon a habeas corpus the judgment even of a subordinate state court having jurisdiction of the subject-matter, cannot be reviewed in this court; but such judgment, however erroneous, must be taken as legal and valid until reversed on writ of error or appeal.</p> <p>This principle is applicable, cl fortiori, to the judgment of a federal court.</p> <p>A party convicted in one of the federal courts of an offence against the United States, and confined in pursuance of a sentence pronounced there, cannot be discharged on habeas corpus by this court.</p> <p>Contempt of court is a substantive criminal offence; and the power to punish it belongs to the court in which it is committed.</p> <p>The District Court of the United States, like all other courts, has authority to punish a party for contempt in disobeying its process; and its judgment upon an offender of that class is conclusive and cannot be re-examined in a state court.</p> <p>A conviction and sentence for contempt are not the less conclusive because the contempt was committed while the District Court was investigating or trying to investigate a matter which it had no right finally to determine.</p> <p>The proceeding against a party for contempt is wholly distinct and separate from the cause pending when the contempt was committed: as distinct as an ' indictment for peijury is from the proceeding in which the false oath was taken.</p> <p>It is no defence, on a trial for contempt, to show that it merely obstructed the progress of an investigation which the court would have been obliged in the end to dismiss for want of jurisdiction.</p> <p>If such a defence were good and legal, the party accused would bo bound to make it on his trial for the contempt: he could not withhold it until after . his conviction, and then, by means of a habeas corpus, produce it before a different tribunal.</p>

<p>This was a proceeding, by quo warranto, in the name of The Commonwealth ex rel. John Tyler, Jr., against William F. Small.</p> <p>The suggestion filed set forth that, on the 5th day of June, 1854, an election was held in the Second Brigade of the First Divison Pennsylvania Volunteers, for brigadier-general of the brigade — that the return of the election stated that the majority of votes for brigadier-general .had been given to William F. Small, and who was returned as elected.</p> <p>The election was contested, and a board of officers, called by Major-General Patterson, consisting of himself, Brigadier-Generals Cadwalader and Reilly, who convened on the 20th July, 1854, and on the 26th December, 1854, made out a report, which was transmitted to the secretary of the Commonwealth on the 28th December, 1854, deciding that the election had been illegally conducted; and that the same be set aside, and a new election be held. The reasons stated by the board are as follows: — ■</p> <p>“ The commissions of some officers and muster rolls, furnished by officers claiming to command companies, were produced, many of which (if they ever had any legal existence) had not paraded for several years, and were not equipped for service as contemplated by law. The annual inspection and returns had not been regularly made, which increased the difficulty of ascertaining what companies composed the brigade.</p> <p>“ It must be apparent that under these circumstances, that in the disorganized condition of the brigade, an inspection should be made of each company, and the record of their existence established previously to a new election.</p> <p>“ At some of the polls voting by proxy was illegally permitted, and a few members allowed to vote for all the other names of members upon the muster roll of their companies, and there were cases where the whole number of votes polled clearly exceeded the number of members of the companies.</p> <p>“ The judges of the election in most cases were not even duly qualified, and the election was conducted in many of the essential requisites with great carelessness and want of observance of law.”</p> <p>On the 9th January, 1855, a new election was ordered by the brigade inspector of the brigade, to be held on the 22d of January, 1855, and on the 13th January, 1855, a similar order was issued by Major-General Patterson. On the 10th of January, 1855, Governor Bigler issued a special order to General Patterson, directing him to issue an order for a rigid inspection of the brigade prior to the election.</p> <p>This latter order was countermanded and revoked by Governor Pollock on the 17th January, 1855, and General William F. Small directed to resume the command of the brigade, &c.</p> <p>On the 22d of January, 1855, the election as previously ordered was held, and the relator John Tyler, Jr., returned as elected, and the return transmitted to the secretary of the Commonwealth.</p> <p>On the 3d of February, 1855, by a special order issued, Governor Pollock set aside and reversed the decision of the board of officers, of the 26th December, 1854, setting aside the election of William F. Small for the following reasons:—</p> <p>“ That the board did not proceed and decide according to law in the premises.”</p> <p>“In not stating in which of the companies voting by proxy had been permitted, and how many illegal votes were given, and for whom, and whether such votes would have changed the result of the election.”</p> <p>“ That the board erred in not stating in their report in which of the companies ‘ the judges of the election had not been duly qualified.’ ”</p> <p>That the allegation in the report of the board that the brigade was disorganized, in consequence of the neglect of former officers to keep records, &c., did not prevent the volunteers from electing their officers, and did not show that the election was illegal.</p> <p>That the decision of the board was not rendered in time.</p> <p>The decision of the board was, therefore, directed to be reversed and annulled, and a commission directed to be issued to William F. Small, as Brigadier-General of the Second Brigade, and which was accordingly done — to date from the 5th day of June, 1854.</p> <p>The suggestion of the relator suggested further that the said' William F. Small has, since the 1st day of March, 1855, usurped upon the Commonwealth, the privileges, office, and franchises, and liberties of Brigadier-Greneral of the Second Brigade, First Division, of Pennsylvania Volunteers, without any sufficient authority therefor, &c. • ‘</p> <p>The case was heard before the court in banc, at Philadelphia, upon the suggestion of the relator, and answer of the respondent.</p>

<p>Appeal from the Common Pleas of Montgomery county.</p> <p>This was a bill in equity, filed by Daniel H. Mulvany against John Kennedy, to compel the defendant to restore to him a certain way to which he claimed right. William Kennedy was the owner in fee of a tract of limestone land containing 138 acres, with a front of seventy perches on the river Schuylkill, and on the 25th June, 1833, sold and conveyed to William Bethel, thirteen and one-half acres of the same, with the use of a certain private railroad to convey limestone to the river, and the use of a landing of one hundred and eighty feet on the river. There was also a cart or wagon road at this time to the landing.</p> <p>Between 1835 and 1840 the Reading Railroad was constructed through the lands of William Kennedy, and instead of building a bridge over the road, built it further up, and the road was then shifted to that place so as to pass under the bridge, and from there it proceeded in a direct course to the river, and the landing.</p> <p>In the year 1839 or 1840, the Schuylkill Navigation Company raised their dam, which was a short distance below the landing, and changed their tow-path to that side of the river on which this landing was situated.</p> <p>The company then dug a basin back from the landing and communicating with it, for the use of William Kennedy, and over the channel erected a bridge which was used as a tow-path bridge, and also as a cartway to give access from Bethel’s quarry to the landing on the river. The eastern abutment of this bridge was on Kennedy’s land, and the western on the land claimed now by plaintiff. This bridge was the only means of access from Bethel’s quarry to the landing, and he and his tenants availed themselves of it for six or seven years, and then ceased to use the landing altogether.</p> <p>On the 23d March, 1852, William Bethel and wife conveyed the thirteen and one-half acres in fee to the plaintiff with all the ways, landings, privileges, and appurtenances.</p> <p>William Kennedy and wife, on the 1st April, 1843, had conveyed the residue of the tract to John Kennedy, the defendant in this ease.</p> <p>The plaintiff alleged that the effect of digging the basin and the channel or entrance to it, and the bridge over the latter, was to destroy the bed of the old road in that vicinity, to render uncertain its locality, and to increase the distance and the grades, over a narrow bridge under the control of the navigation company.</p> <p>The plaintiff also complained that in cleaning out the basin, large quantities of mud and earth were deposited by the defendant’s workmen upon his land.</p> <p>The defendant, after the deed to him of the 1st April, 1848, entered into possession of the premises conveyed to him, including the channel and basin, and has continued to maintain and use the same ever since. The plaintiff notified the defendant to have them filled up, and the road restored as it was, failing to do which the plaintiff filed this bill of complaint.</p> <p>The defendant, in his answer, alleged that the basin and channel of which the plaintiff complains, were dug and made by the Schuylkill Navigation Company, under and by agreement between the company, William Bethel, under whom the plaintiff claims, and William Kennedy, under whom defendant claims, and that the then owners used the roads and .bridge, and acquiesced in the arrangement for a number of years. He also suggested that if the plaintiff had any remedy, it was against the navigation company, by whom the acts were done, of which his bill complained.</p> <p>To the answer there was a replication, and an examiner was appointed to take the testimony. After hearing and argument, the court below dismissed the bill, and the plaintiff appealed.</p>

This was a bill in equity filed in the Supreme Court, in the Middle District, at May Term, 1856, by Sarah L. Keene, of the city of Philadelphia, against the Burgess and Council of the Incorporated Borough of Bristol, in the county of Bucks.

This was a bill in equity filed by Isaac Abrahams against Samuel Hunt, praying an account of certain partnership dealings between the parties. The parties were drovers and butchers, and in 1841 formed a partnership which continued till December, 1847. The keeping of the accounts, collecting money, and the general financial affairs of the concern, were under the care of Hunt.

This was a bill in equity filed by the surviving executor of George W. Morgan against Freeman Scott, to compel specific performance of an agreement for the sale of land. ; The complainant was authorized as executor to sell or let on ground-rent the real estate of his testator by a special Act of Assembly, passed 29th March, 1851.

<p>Where the owner of real estate died after the making of an article of agreement for the sale of it, the rescission of the contract after his death, worked a reconversion of the estate into land, each distributee or legatee taking such interest in the land as the will or the law would have given him in the price, after payment of the debts of the decedent. ,</p> <p>As to the creditors of the decedent, neither the agreement of sale nor the death of the owner worked any conversion of the real into personalty, whether their liens were acquired before or after the contract of sale, previous to or at the death of the decedent.</p> <p>Where such lands were held by the decedent as tenant in common with others, the parties in interest would be entitled to immediate possession as tenants in common, or to partition, to hold in severalty, subject to the paramount rights of the creditors, to be ascertained and enforced by proceedings in the Orphans’ Court.</p> <p>Where such lands are held by a trustee, a court of equity will not decree a conveyance of them to the executors to enable them to sell them for the payment of the debts of the decedent.</p>

This was an action of trespass, brought by Cornelius Hunsicker, William R. Haynes, and A. Spalding, for taking and carrying away 63,000 feet of boards. In February, 1853, Hunsicker purchased of C. W. Miller the boards in question, which were piled up at a saw-mill which Miller was carrying on at the time, and for which he gave him a horse, a wagon, and $100 in money.

This was an appeal by E. H. Butler from the decree of the Court of Common Pleas of Philadelphia, confirming the report of an auditor distributing the assets .in his hands as trustee of Reynell Coates, M. D., an insolvent debtor. On the 4th of May, 1842, Coates was discharged under the insolvent laws. Samuel C. Paris and William Abbott were the trustees, who never gave security and never acted, but on the 3d of July, 1850, by writing filed, renounced the trust.

<p>Where persons acting in a fiduciary capacity are interested in the purchase of real estate sold by them, at the time of sale, or become so immediately afterwards and before the payment of the purchase-money, any profit which they make in the transaction belongs to the parties beneficially interested in the trust.</p> <p>The equity of the cestui que trust in such cases, is superior to that of a co-purchaser, who had full notice of the trust.</p> <p>The acceptance of a part of the proceeds of sale might bind the heirs or devisees not to disturb the title of a purchaser, but would, not estop them from claiming the advance on the sale from the trustees.</p>

This was an action brought by the “ Penrose Ferry Bridge Company” against George H. Crossman, to recover the amount of the latter’s subscription to the capital stock of the company. Pearson Serrill and thirteen others were named in the act incorporating the company, as commissioners, and authorized to receive subscriptions and organize the company.

This was a feigned issue to try the right to certain property, seized by the sheriff of Philadelphia county, on an execution against John and Abraham H. Dunlap, issued at the suit of Anthony Bournonville, and which said property was claimed by William Dunlap, the plaintiff in error in this case. John and Abraham Dunlap had been carrying on the business of coachmaking in Philadelphia.

This was an action of assumpsit by George Bowers against William Bowers, in which the following facts appeared: Bom ulus J. Bowers died in 1851, intestate, being indebted to the plaintiff, who was his father, by two promissory notes, amounting to the sum of |657.37.

This was an action on the case for conspiracy by Michael Mur phy against Charles Kelsey and Ephraim K. West; the process was served on Kelsey alone. The case was very voluminous, but the leading. and material facts were as follows: Murphy, the plaintiff, was a coal merchant, residing at Pottsville, and in the year 1845 sold a quantity of coal, amounting to about $3000, to Ephraim K. West, who was a coal dealer, and kept a yard in the city of Brooklyn.

Cebtieioate from the Court of Nisi Prius. This case originated in the transactions of the banking-houses of Samuel J. Beebe and George W. Beebe, doing business in New York as Beebe & Co.; R. M. Ludlow and R. M. Ludlow, Jr., as Ludlow & Co., in Philadelphia; and S. Beebe Ludlow, as S. Beebe Ludlow & Co., in San Francisco. The facts of the case sufficiently appear in the opinion of his Honour, Mr. Justice Black.

This was an execution attachment at the suit of Archibald Mcllree against Robert Guy, garnishee of McIntyre & Gibboney. The firm of McIntyre & Gibboney, manufacturers of cotton and woollen goods in the city of Philadelphia, in June, 1849, became embarrassed and in failing circumstances.

■ This was an ejectment brought by Daniel Smith and wife, against Joshua Grim and Andrew Giltner, to recover -two tracts of land; one containing 30 acres, and the other 79 perches. John Notestein was the owner of the premises in dispute, and on the 9th of March, 1844, conveyed the 30 acre tract by deed to Catharine Fry, who was married to Daniel Smith in 1847. • The consideration named in the deed was $500, but no money was paid.

Error, to tbe District Court of Philadelphia. This was an execution attachment issued upon a judgment, wherein Edwin Tams was plaintiff, and John Tams, with notice to Richards, Bispham & Co., and William Tams, garnishees. Edwin and John Tams had been partners in the china, glass, and crockery ware business, and on the 9th of February, 1850, dissolved partnership, John purchasing Edwin’s interest, and continuing the business.

<p>Error to the Common Pleas of Bucks county.</p> <p>This was an action of trespass, vi et armis, by Ralph Lapp, against Henry Albright. The latter was a justice of the peace, and, dui’ing some proceedings before him, he alleged that Lapp used insulting and contemptuous language, whereupon he committed him for contempt to the jail of Bucks county for the period of twenty-four hours.</p> <p>On the trial the plaintiff proved the imprisonment, and gave in evidence the warrant charging Lapp with “abusive and contemptuous treatment of Henry Albright, one of our justices of the peace, in and for said county, while in the execution of his office, and with unlawfully disturbing and obstructing him therein.”</p> <p>The plaintiff then offered to prove “ the conversation, and all matters that took place in the office of the justice of the peace, Henry Albright, at the time the alleged contempt was committed, as stated in the warrant of commitment, on which the plaintiff was arrested and put to prison, for the purpose of showing that no contempt was committed.” This was objected to by the defendant, but admitted under exception by the court.</p> <p>The court charged that a justice of the peace had power to commit for contempt.</p> <p>The jury found for plaintiff $50, and the defendant removed the record to this court by writ of error.</p> <p>The error assigned was to the admission of the evidence above stated.</p>

<p>Error to the Common Pleas of Philadelphia.</p> <p>This was an attachment execution, issued by Eliza Scott to the use of Daniel Miller & Co. against James Grill, defendant, and Robert Newlin, garnishee.</p> <p>The garnishee filed answers to interrogatories propounded by the plaintiff, in which he admitted that he had in his hands $25, belonging to the defendant, at the service of the attachment upon him, out of which he claimed to retain the sum of $20 to pay counsel he had been obliged to employ in the case.</p> <p>The plaintiff ruled the garnishee to plead, and he entered the plea of nulla Iona.</p> <p>On the trial before the jury the only evidence was the answers of the garnishee to the interrogatories.</p> <p>The jury returned a special verdict “ that there was tbe sum of $25 in the hands of the garnishee belonging to the defendant at the time the attachment was served.” The court reserved the point of whether the garnishee was entitled to an allowance for the amount paid counsel. Afterwards judgment was entered on the verdict for $25 and costs.</p> <p>The garnishee brought the record to this court, and assigned for error</p> <p>The refusal to allow his expenses, and entry of judgment against him for costs.</p>

<p>An attachment execution, to attach a debt due to the defendant from an an insolvent estate, is not premature, although laid before the final settlement of the account of the executor, or decree of distribution.</p> <p>The case of Gochenaur’s Executors v. Hostetter, 6 Barris 414, approved.</p>

<p>A copy of a rule on a garnishee to answer interrogatories left at his dwelling-house, in his absence, with an adult member of his family, is a sufficient service.</p> <p>A mistake of the clerk in the date of the entry of the rule, was amendable at any time, and forms no ground to reverse the judgment.</p>

<p>Where a party assigns securities in the hands of an agent for collection, to a third person, an action for money had and received will lie against the agent, in the name of the assignee, for the amount received by the agent upon such securities.</p> <p>When one of two partners retires, relinquishing to the other all his interest in the partnership property, the remaining partner has the same dominion over it, as if it had always been his own property.</p> <p>Where the retiring partner stipulated that the remaining partner should pay the debts of the firm, a suit on the contract was his only means of enforcing the obligation.</p> <p>A voluntary assignee of a limited partnership cannot avoid an assignment made contrary to the provisions of the 21st section of the Act 21st March, 1836. Such assignee represents only the assignor, and not the creditors.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action on the case by George C. Carson and Charles Newbold, trading as Carson & Newbold, to recover damages occasioned to their property by the falling of a building owned by the •defendant. The building in question was erected by Godley in the summer of 1850, near the corner of Dock and Second streets, ■Philadelphia. The building was five stories Mgh, the lower story front being of granite and the remainder of brick. Godley, who •was a merchant, superintended the erection of the building himself, without having employed any master-builder or architect for that purpose. While the building was in progress, Godley had several conversations with the superintendent of public stores of the United States, who informed the defendant that if the government leased the stores they wanted them of the strongest kind, and for the storage of heavy merchandise. After the building was completed it was examined by the officers in charge of the custom store-houses, and upon their examination and knowledge of the building, leased for the use of the United States government by the collector of the port, and possession taken on the 25th July, 1850. The lease contained no stipulation as to the manner in which the building was to be used, or covenant as to its fitness or adaptation to the purpose of storing goods. The lower story of the building was used for storing iron, hardware, &c., and on the second floor the officers commenced storing sugar which was under bond.</p> <p>In the afternoon of the 9th August, 1850, Godley visited the store in company with the officer in charge of that department of the customs, and upon examination they found a small crack in one of the arches. ■ Mr. Godley proposed to have it walled up or otherwise secured, but the officer did not wish to have it done at that time. On the following morning, while the workmen were still engaged in putting in the sugar in the store, it fell, destroying a large quantity of sugar belonging to the plaintiffs, the value of which they seek to recover in this action.</p> <p>The evidence as to the character of the materials and the strength of the building and its adaptation to the purpose of a government warehouse was conflicting. The officers testified that they did not lease it upon the representations of Godley, but upon their own knowledge and examinations; nor in storing did they rely upon his opinion of its capacity, but upon their own opinion of its strength to sustain the weight they had ordered to be placed in it.</p> <p>On the trial the plaintiff offered to prove that Godley had built other stores in the same row previously, which had fallen shortly .before he commenced building the store in question. The defendant objected, but the court overruled the objection and admitted the testimony.</p> <p>The counsel for the defendant presented the following points, and prayed the instruction of the court thereon:—</p> <p>1. That if the jury believe the plaintiffs’ goods were stored in the warehouse belonging'to the defendant, at the time the same was leased to and in the occupancy of the United States, by the order and direction of the United States, and without any authority from the defendant, the plaintiff cannot recover.</p> <p>2. That if the jury believe that any representations made by 'defendant, relative to the character of the building, were never communicated to plaintiffs, and that plaintiffs were -not induced by fraudulent representations of defendant to store Ms goods on the premises in question, plaintiffs cannot recover.</p> <p>. 3. That where a tenant rents a building generally, without specifying any particular purpose, he has no right to use it for any. purpose for which its open visible, construction unfits it, and if he. does so, the owner is not responsible.'</p> <p>’. 4. That if the building in question was erected under the supervision of an officer of the United States Custom House, in accordance with his suggestions, 'and with a full knowledge on his part of its imperfections, if any, and was so taken and received by the United States, plaintiffs, being parties whose goods were •; stored in the bmlding by order of the government, cannot recover; in this suit.</p> <p>• 5. That after the possession of the premises was given to the United States, the control over them, so far as the defendant was. concerned, ceased, and that defendant could not compel the government officers to permit him to brick up the arches, or shore up the wall containing them against the consent of the officer in charge, Colonel Harris; and that the officer could have resisted any attempt on his part to do so, and, if he deemed proper, expelled him from the building.</p> <p>6. That the defendant was only bound to employ reasonable skill and care in the erection of the store'; and if the jury are satisfied he did so, and that the persons employed as mechanics were good workmen in their particular branches, the materials good, and reasonable skill employed in its design and construction, the defendant is not liable.</p> <p>7. That if the government officer in charge of the building, Colonel Harris, was warned by defendant of the mode in which the building was being loaded, and an offer was made to brick up the wall containing the arches, and to do everything requisite to insure the safety of the building, which was declined, the defendant did all he had power or the law reqMres him to do, and the plaintiffs, cannot recover.</p> <p>8. That if the jury believe the orders given by Colonel Harris to desist storing were disobeyed by the gang of men employed, and’ that the building fell in consequence, the plaintiffs cannot recover..</p> <p>9. The arches in this building being perfectly visible to the eye ; of the occupants, and the peculiarity of their construction known to them, they were bound to use them with such caution as their structure required; and if they imprudently overloaded them, the owner is not responsible.</p> <p>10. That if Colonel Harris would not permit Mr. Godley to brick up these arches, Mr. Godley is not responsible for the injury which, has occurred, in consequence of their giving way.</p> <p>11. That having no right to interfere with the building, Mr. Godley was only required to offer to strengthen it, anc^ if that offer was rejected, he is not liable in this suit.</p> <p>12. That if the jury believe that the attention of Colonel Harris was directed to the storing of the sugars, and' the offer' Wás made' to- him by Mr. Godley to do anything that should be necessary’ to secure the building, which offer was repelled, Mr'. Godley, as' landlord, had no right- to brick up the arches contrary to his wishes.</p> <p>His Honour, Judge Knox, charged the jury as follows:—</p> <p>“Did'the defendant cause the-building in question to be constructed in a proper manner, and with good' materials, and by-' competent workmen ? Or was there negligfence in the erection of the building, either as to the design or in the execution of it ?</p> <p>“ In determining the question of negligence, the jury should consider the purposes to which the building was to be put, and they should also consider the evidence as to the directions given, and the desire expressed by the government officer t'o have'the building erected in a particular manner.</p> <p>“ If there was negligence on the part of the defendant, then the’ jury are to inquire whether- this negligence was the cause of the injury; if it was, the plaintiffs are entitled to recover to the extent of the injury sustained. If, however, there was no negligence on the part of the defendant; if the building Was properly constructed, of good materials, and by competent-workmen; or, if the injury' was sustained by reason' of the want of due care on behalf of the government or its employees, as to the manner of using.the building, the plaintiffs cannot recover.”</p> <p>“ The points were answered as follows</p> <p>“ 1st. In the negative.</p> <p>“ 2d. In the negative.</p> <p>“ Bd. This proposition is correct; but'if the evidence'is believed] this building was leased for heavy storage, and might legally be used as such.</p> <p>“4th. We have already said that the facts mentioned in this' point may and- should be considered by the jury, in determining whether there was default on the part of the defendant'; but we cannot say, as matter of law, that the knowledge of Colonel Harris of an imperfection in the erection of the building, even if suggested by him, would excuse the defendant in an action brought by a stranger.</p> <p>“ If the defendant knew that the building was to bé used for heavy storage, he was bound to use reasonable care and skill in-preparing it for such a purpose; up to the time'it'was leased to the government, it was under his exclusive control and direction.</p> <p>“ 5th. Answered in the affirmative.</p> <p>“ 6th. Answered in the affirmative.</p> <p>“ 7th. If the jury believe that the building was loaded beyond what would have been reasonable for a building properly constructed for heavy storage, and that by this the injury was sus-' tained, the plaintiffs cannot recover; or, if the jury believe that the injury was sustained for the reason that the employees- of the' government were negligent in the manner of storing away the-' sugars, the plaintiffs cannot recover; but we cannot say that the offer to brick up the arches ‘was all that the defendant had power to do, or all that the law required him to do.’</p> <p>“ 8th. There is no‘evidence that we recollect that the men were-instructed by Colonel Harris to cease storing, but merely to take "the’ whole building to place the sugars in. We have already said that if the injury was caused by the negligence or misconduct of the men, the plaintiffs cannot recover.’</p> <p>“ 9th. Answered in the affirmative.</p> <p>“ 10th and 11th. If the jury are satisfied that the injury might-have been prevented by bricking up the arches, and that the defendant offered to do it, and was prevented’by the ’ government Officer having charge of the building, the plaintiffs cannot recover.</p> <p>“,12th. This has been already substantially affirmed.- The defendant is only liable for his own negligence, and not for that of those over whom he had no control.”</p> <p>The jury found a verdict for the plaintiffs for $3123.38. A motion made by defendant’ for a new trial was overruled; aridthe defendant took a certificate to the court in banc, and assigned for error the charge of the court, the answers to -the points, and the admission of the evidence above stated.</p>

<p>Whore a •warrantee has two surveys of different .tracts of'land made upon the same warrant, and accepts a patent for one of them, the other is subject to appropriation by a settler, the same as if it had never been surveyed.</p> <p>An order of the board of property, cancelling the first patent, accepting the other survey, and directing a patent to issue upon it, is void as against the • rights of the intervening settler.</p> <p>A warrant holder having two surveys made and returned on the same war- . rant, must make his election between them, and this he does when he accepts .a patent for the one, the other being then subject to appropriation by warrant or settlement as unappropriated land.</p>

<p>Error to the Common' Pleas of Chester county.</p> <p>This was an ejectment brought by Ann Ransley against Joseph' Stott. On .the 14th February, 1777, James Sharp was seised of the premises in dispute, and on that day executed his last will and testament, in which he devised them to his daughter Sarah in fee tail. His'will was admitted to probate on the 16th October,-1812, although the testator had died prior to the year 1780.-Sarah, the devisee, was born on the' 8th November, 1765, and T^-as intermarried with Robert Kenny, by whom she had several children, all of whom died in their minority, except Ann, the plaintiff in this • case, and she, before arriving at age, was intermarried with James Ransley, who died about the year 1843.</p> <p>Robert Kenny, the husband of Sarah, died in October, 1819.-Sarah,' his widow, and the devisee under the will of James Sharp,. died in October, 1850. Upon this state of facts, the plaintiff sought to recover as the issue in tail of Sarah Sharp.</p> <p>The defendant alleged that the entail was broken by virtue of a deed made by Robert Kenny and wife; On the 13th of April, 1787, for the land in dispute, and a common recovery suffered in pursuance of it.</p> <p>This deed is an indenture of four parts, between Robert Kenny, of the' county of Chester, in the state of Pennsylvania, yeoman, and Sarah Kenny, his wife, formerly Sarah Sharp, daughter of James Sharp, late of said-county, deceased, of the first part;' Frederic Phile, of the' city of Philadelphia, in the state aforesaid, practitioner in physic, of the second part; Elias Hadley, of the said city of Philadelphia, in the state aforesaid, gentleman, of the third part; and Charles Gilchrist, of the city Of Philadelphia,. merchant, of the fourth part.</p> <p>This deed was made to lead the uses of a common recovery to' be suffered with single voucher for the use of Charles Gilchrist,his heirs and assigns. The consideration of ¿6400 is acknowledged to have been received of him, by Robert Kenny and wife and was made for the purpose of barring and extinguishing all estate' tail in the premises conveyed, and all reversions and remainders expectant and depending thereupon. The deed then conveys' the' premises to Frederic Phile, his heirs and assigns, to' the intent' that he may become a good and perfect tenant of the freehold.</p> <p>The instrument declares that the common recovery suffered' shall be for the use of the said Charles- Gilchrist, his heirs and assigns, and concludes with a covenant for further assurance.</p> <p>The deed was acknowledged before Edward Shippen, president’ judge of the Common Pleas of Philadelphia, April 14, 1787, ah' appears by his certificate of that date, which does not state that' the contents of the deed were made known to Sarah Kenny.</p> <p>The records of the Supreme Court exhibit a writ of entry, sur disseisin en le post or precipe, in which Elias Hadley is named as plaintiff, and Frederic Phile, defendant, which was entered as if issued out of that court for lands and messuages in Sadsbury, ■■ Chester county, January 2,1787, with a return in the usual form, endorsed; and also a writ of seisin between the same parties, tested and allowed April 12, 1787, with a return without date, stating the same to have been executed April 3, 1787. But-no’ other parts of the recovery roll could he found, though docket entries of the case exist upon the record, which agree with the recovery stipulated for in the deed.</p> <p>The evidence showed that Gilchrist went into possession shortly after the date of the deed, and that all the title deeds of the land were handed over to him, and that extensive and valuable improve-' ments had been made by him and those claiming under him.</p> <p>The defendant claimed under Charles Gilchrist, named in the'' foregoing deed, and insisted that the entail in Sarah, wife of Ro-' bert Kenny, was barred by virtue of that deed, and the common recovery suffered or presumed to have been suffered in pursuance' off the provisions thereof.</p> <p>The plaintiff^ on the other hand, averred that, assuming that a' common recovery had been regularly suffered according to- the deed, the entail was not barred except so far as regarded the right of Sarah Kenny; the deed and proceedings contemplated' by it being inoperative as to the rights of Ann Ransley.</p> <p>The court below (Haines, P. J.) directed the jury to find a verdict for the defendant.</p>

<p>Error, to the Common Pleas of Montgomery county.</p> <p>These cases were ejectments, brought by Wilhelmina Brendlinger against Charles Brendlinger, to recover the one-third of one-seventh of two lots of woodland, containing about 10' acres each, and against Jacob Feather, to recover the same interest in another tract of the same quantity. The plaintiff showed that the title was vested in Jacob Brendlinger, who died seised of the same, leaving five children and the issue of two children deceased, and that she was one of the three children of a deceased son.</p> <p>The defendants claimed through a sale by the executors under the will of Jacob Brendlinger, dated 19th August, 1845, which contained the following clause: “ My personal as well as my real property (both tracts of land) are to be sold publicly, and the real property subject to the dower above mentioned, for my wife Mary, whensoever three of my yet living children think proper, and the income shall be equally divided amongst my five yet living children.” In another part of the will he says, “ The third part of the purchase-money is to remain in both tracts of land (the one whereon I at present, as well as the other where my son Charles lives), for her dower as long as she lives, at 5 per cent.”</p> <p>Charles was then living on a tract of land in Douglas township, and using it as a farm, and about two miles distant, in the same township, was a wood lot of the testator, of ten acres, from which Charles was accustomed to get wood for his farm. The testator lived on a tract in New Hanover township, and used it as a farm, and had two other wood lots in that township of near ten acres each, and which he used to get wood from, one of them being two miles and the other three miles distant from his farm. About 20 or 30 rods from Charles’s farm or tract was another wood lot of about tbe same size as tbe other lots, which Charles used as a wood lot, in connexion with his farm, and perhaps for pasturing cattle. This lot had formerly been connected with Charles’s tract, but the testator had disconnected it by selling off an intervening portion, reserving, however, unto himself, his heirs and assigns, “the privilege and use of a road where the same now passes through said lot, to pass and repass with a team for ever.” This was the connexion between the tract and the wood lot in 1845, when the will was written.</p> <p>The question raised was whether, under the will, the executors could convey these wood lots, under the authority given to sell the farms.</p> <p>The court below (Smyser, P. J.) decided, that if the jury should find that these wood lots had. been used with the farms, and were necessary to them respectively; that for a long time before the date of the will, each farm and the wood lots in the same township had formed one plantation, and were blended together in use and enjoyment; and that the testator so regarded them in his will, then those lots would pass to the purchasers under the sales made by the executors. The jury found for the defendants, and these instructions were assigned for error.</p>

<p>Executors who are empowered in a will to sell real estate, may maintain an action for mesne profits in regard to such real estate, both for such time as the defendant was in possession before the death of their testator as well as after-wards.</p> <p>Cobb v. Biddle, 2 Harris 444, affirmed.</p> <p>In such action it is of no importance whether the original entry and possession of the defendant were' lawful or tortious, if he withheld the possession after the plaintiff was entitled to it he became .a wrongdoer.</p> <p>The action, though in form trespass, is really for use and occupation, involving the statement of an account; and it is not error to permit the plaintiff to send out a statement, based on the evidence,'to aid the jury in their calculation.</p>

<p>Error to the Common Pleas of Philadelphia.</p> <p>This suit was an action brought before a justice of the peace by Thomas Collins against Thomas Chadwick, to recover the sum of twenty-five dollars, for selling defendant’s house and lot.</p> <p>The claim was resisted on the ground that the plaintiff was not a licensed real estate broker, and could not invoke the aid of the law to enforce a contract in violation of an Act of Assembly.</p> <p>The judge below overruled this defence, and the jury found for the plaintiff the sum of $>25.</p> <p>The defendant took this writ, and raised the same point in this court on his assignment of errors.</p>

<p>Where A. gave to B. his single bill for §1000, dated the 2d of April, 1851, payable one year after date, and before its maturity, A. and B. agreed on Sunday, without the knowledge or consent of the surety, that if A. would pay to B. $160, on the 1st day of April, 1852, being one day before the maturity of the single bill, B. would extend the time for the payment of the balance for one year from that time; and A. on the 1st April, 1852, paid the §160 — which B. received and credited on the single bill: It was Held,</p> <p>1st. That the agreement was made on sufficient consideration:</p> <p>2d. Such agreement if proved to the satisfaction of the jury would discharge the surety who had not consented to it.</p> <p>3d. That the agreement though made on Sunday, and void as an executory agreement, the payment of the money afterwards, and its receipt by the obligee, constituted a new contract which was binding on the parties.</p>

<p>Error to the Common Pleas of Montgomery county.</p> <p>Morgan Reese, the plaintiff, was on the 24th day of May, 1850, the owner of 82 shares in the capital stock of the Montgomery County Bank. Up to that day he had not paid in his stock in full; on 51 shares he had paid $40 per share, on 16th May, 1836 ; and on 31 shares, $20 per share, which was of the second series of stock. These were all the payments which had been demanded by the Bank, up to the 14th April, 1849, when there was a call for $10 on each share for which $40 had been paid in, and for $30 per share on the other, to be paid on or before 18th May, 1849. Notice of this action of the bank was published in the Norristown newspapers. On the 2d February, 1850, the bank resolved to increase the stock by allowing those of the stockholders “ who had paid up their instalments in full,” to subscribe for one additional share for every six shares of the stock they then held, and for that purpose books were to be opened at the banking house between the 13th and 31st of May, I860. On the 24th of May, 1850, Reese went to the bank and paid the arrears upon his 82 shares of stock, amounting to $1440, and tendered $700 in gold coin in payment of 14 shares of the new stock then being distributed, and demanded the same. The officers of the bank refused to receive it, or to permit him to subscribe for any part of the stock.</p> <p>The capital stock consisted of 8000 shares, the par value of which was $50. Of this amount 7101 shares had previously been subscribed for, and 899 shares were to be distributed.</p> <p>This action was brought to recover damages for the injury sustained by refusing him permission to subscribe his proper proportion of shares of the new stock, which it was ascertained by calculation would have been ten shares.</p> <p>. The cause was previously in this court on a writ of error, when it was decided that the holders of the stock had a right to subscribe for the new issue, in the proportion of the stock then held by them; and for refusal to permit a stockholder to subscribe, an action would lie against the bank; and “ the market value, after the additional stock was subscribed, was the proper measure of damages for depriving the plaintiff of the right.”</p> <p>The principal question on this trial was as to the amount of damages the plaintiff was entitled to recover. The plaintiff proved that between the refusal of the bank and the time of trial, the stock had sold in open market for $72.50 per share.</p> <p>The following points (among others) were submitted to the court in writing by the defendant below:—</p> <p>That if the plaintiff is entitled to recover at all, the measure of damages should be according to the amount of capital paid in by him, and that if the jury believe the testimony of George Shannon, the plaintiff’s share of this new stock, on this basis, would be six shares, thus entitling the plaintiff to recover $20, with interest from the 24th May, 1850.</p> <p>That if the court cannot charge as requested in the last point, then they are requested to charge the jury that if the plaintiff is entitled to recover at all, the measure of damages should be according to the number of shares he would have been entitled to, if all the new stock had been distributed to and among all the stockholders of the bank; and that if the jury believe the testimony of George Shannon on this point, the plaintiff would have been entitled to nine shares of said new stock upon this basis, thus entitling the plaintiff to recover $45, with interest from May 24, 1850.</p> <p>The court below, (Jones, P. J., holding a special court,) after stating the facts and the questions arising, instructed the jury as follows:</p> <p>“ That brings us directly to what is the measure of the damages in this case. That question' does not seem to have been formally argued in the Supreme Court, nor, indeed, to have arisen there. ‘Since the stock of the Bank,’ say the court, .‘might be affected by the increase of its amount, its market value, after the additional stock was subscribed, is the proper measure of damages for depriving the plaintiff of his right.’’</p> <p>“ The word after does not indicate any specific date at which that measure of damages is to be ascertained by the then market value. And, indeed, no date can be specifically fixed. It might have happened in this case, as it often has in others, that the stock remained at par for a time after an increase of stock. Then there could be no damage on the day of the refusal, or for some time after, and nothing but nominal damages could be recovered for the invasion and deprivation of the plaintiff’s right.</p> <p>“But, suppose that sometime after the refusal to receive the subscription, and before trial, in the case I have supposed, the stock should run up far above par — is not that high price above par the measure of damages ? I cannot see that we can have any other measure of damages, when the damage is merely to make the plaintiff whole. That is the measure in this ease.</p> <p>“ The dividends do not follow the deprivation of the right to subscribe. The bank never had the money of the plaintiff, which he tendered for those ten shares, in hand, and so is not liable for their dividends. A trustee is liable for such profits as he makes out of the trust fund, but not for such as might have been made, when the fund was not in his hands. This can proceed upon the denial of a right, simply.</p> <p>“ What has been the highest price, at open public sale, of this stock, between 24th May, 1850, and this day ? The difference between that and par, multiplied by ten, the number of shares the plaintiff was entitled to subscribe for, covers the damages in this case.</p> <p>“ There are numerous points submitted to the court by the defendant corporation, which were handed in so late that I have really not had an opportunity to give them a careful reading, much less to answer them elaborately; so that, in so far as they are not answered affimatively, or at all, in this charge, they may be considered as answered in the negative.”</p> <p>The jury found for the plaintiff $237.50 damages.</p> <p>The Bank thereupon removed the record to this court by writ of error, and filed the following assignments:—</p> <p>1. The court erred in admitting evidence of the highest price at which the stock of said Bank had been sold.</p> <p>2. The court erred in their answer to the points submitted by the defendants below.</p> <p>3. The court erred in charging the jury “ that this is not exactly a case of retention of so much of the plaintiff’s stock, it is a refusal to allow the exercise of a right, which if allowed, would have resulted in his acquiring so much stock. The case pro.ceeds in the obstruction of a right, and is to be redressed by so much damages as will fully make him whole.”</p> <p>4. The court erred in charging the jury, as follows: What has been the highest pi-ice, at open public sale, of this stock between 24th May, 1850, and this day ? The difference between that and par, multiplied by 10, the number of shares the plaintiff was entitled to subscribe for, covers the damages in this case.</p>

<p>Error to the Common Pleas of Northampton county.</p> <p>This was an action of assumpsit by John Hibler against Joseph Unangst, to recover the sum of $735, being the amount of wines and liquors sold by Hibler to George Wenner, a son-in-law of the defendant, Unangst.</p> <p>Wenner had two stores, one' at Allentown, in Lehigh county, and the other at Bethlehem, in Northampton county, and the plaintiff alleged that the liquors were sold to Wenner upon the guaranty of Unangst.</p> <p>Charles Snyder, an agent of the plaintiff, testified, — “I told Unangst that Wenner was about purchasing two bills of liquor, one for the Bethlehem store and one for the Allentown store — two bills. I then said, from what I heard since I was in Easton, and from people in the country, that George Wenner was going down, likely to fail; others spoke different; that I was selling for Hibler, and would not like to sell unless I made a bona fide one-^ — to be safe, you know. He observed, ‘if George Wenner is not good enough, I am: I says yes, for $10,000, if he requested it.’ He said nothing more, smiled, and we went out in the bar together; we there talked, and it was repeated again in the presence of John Boas; he was near enough to hear it, but whether he did, I don’t know; a number of persons were in the bar-room; he asked me to go to the bar and take a drink: my impression is that Boas was in the bar: we both took a drink. I took Wenner’s orders and filled them with confidence.”</p> <p>The following points were submitted to the court by the defendant below:</p> <p>1. That if the jury believe the evidence as given by Charles Snyder, it amounts at furthest to a mere overture on the part of Unangst, and there being no proof of its acceptance by Hibler, it is not binding on the defendant.</p> <p>2. That if the jury believe that Unangst did guaranty the payment ^of a future indebtedness of an indefinite amount on the part of Wenner to Hibler, he was entitled to notice of its acceptance by Hibler and the amount thereof, and no such notice being given, the plaintiff cannot recover in this suit.</p> <p>The court below (McCartney, P. J.) charged the jury as follows:—</p> <p>“ This is an action on an alleged guaranty of the insolvency of George Wenner, given by Unangst to Hibler. A guaranty is a contract, and as to its general requisites stands upon the same footing as other contracts. A contract is an agreement between competent parties upon a sufficient consideration to do an act allowed by the municipal law, and in a guaranty all these must be found. There must be the consent of both parties, an offer on one side and its acceptance by the other, and of this consent you must have proper evidence. In the English system the contract of guaranty is by statute required to be in writing, and when reduced to writing, the language is construed most strongly against the guarantor. In Pennsylvania a guaranty need not be in writing, but as a protection against fraud the evidence of the promise of guaranty is to be clear and explicit, that there may be no room to suspect mistake or any unfairness in the transaction: Petriken v. Baldy, 7 W. Ser. 430. The usual mode of making a. guaranty of a future credit is, that the guarantor offers (makes a pollicitation) to guaranty; and when the offer is accepted and goods sold on the faith of it, the merchant selling the goods gives notice of the acceptance. The guarantor is entitled to this notice, unless indeed the agreement to accept be simultaneous with the offer: Kay v. Allen, 9 Barr 320. Notice is merely one of the steps required to complete a guaranty. If the parties complete the contract, the one by offering and the other by accepting the offer, and all in the same conversation, no further notice is required. For in a guaranty, as in every other contract resting in stipulation, the concurrence of consenting minds creates the obligation, such consent being once established need not be repeated. In the present case the parties met at Boas’ tavern in Easton, and the plaintiff alleges that the guaranty was there made; an offer on one side, its acceptance on the other, and a communication of that acceptance to Unangst; all this the plaintiff alleges took place there at that time. No subsequent notice of acceptance is pretended. This raises for you the question, ‘Do you believe from the evidence that XJnangst, at Boas’ tavern, offered to guaranty Wenner to an indefinite amount, or to the amount of $10,000, or less, and that this offer was accepted at that time by Hibler through his properly authorized agent, Snyder V (The attention of the jury is directed to each term of this question.) You will not confound Snyder’s subsequent actions in the ease with the contract as evidenced at the time of its alleged completion at Boas’. The evidence of the contract (if one were made) are the facts that occurred at that time and place. The evidence that Unangst made an offer to guaranty, or that his offer -was accepted at the time, is slight. But it is for your consideration — you will interpret all the symbols. The question whether Snyder had authority as agent of Hibler to malee a contract of guaranty, and whether the merchandise (the liquor) was delivered to Wenner, are also for your consideration. If you find that Snyder had such authority, that the merchandise was delivered to Wenner and that there was a contract to guaranty consummated at Boas’, your verdict will be for the plaintiff, otherwise for the defendant. You are the judges of the credibility of the witnesses.”</p> <p>The jury found for the plaintiff the .sum of $1006.94, damages, &c.</p> <p>The errors assigned were: that the court did not answer the points of defendant, and the instructions contained in the charge.</p>

<p>Error to the Common Pleas of Wayne county.</p> <p>This was an amicable action at the suit of The Commonwealth against The County of Wayne, in which the following facts were agreed upon, as a case stated for the opinion of the court, each party reserving the right to sue out a writ of error.</p> <p>At the September sessions, 1850, an indictment was found against one Benjamin Lane, containing three counts; one for rape, one for an assault with intent to commit a rape, and one for an assault. On this indictment he was tried and acquitted, and costs imposed on him by the jury, and he was accordingly so sentenced by the court and committed to jail; he remained in jail for three months when he was released by giving an insolvent bond, with surety, but he never obtained his final discharge; whether, under this state of facts, the county is liable for costs. If the court find the county is liable, then judgment to be entered against them for |64.41, and if the court are of opinion that the county is not liable, then judgment to be entered against the Commonwealth.</p> <p>The material part of the opinion of the court below (J. M. Porter, P. J.) was as follows:—</p> <p>“ Here the indictment for the principal offence was for a felony, ■and the jury could not therefore move judgment when they acquitted, and put the costs on the defendant, although the remaining counts only charged misdemeanours. The whole were tried together, and the same verdict that acquitted him of the misdemeanours acquitted him of the felony also.</p> <p>“How are the costs then in cases of acquittal for felony to be paid ? The Act of 20th March, 1797, § 1, Brightly's Big. 426, pi. 11, provides, All costs accruing on all bills of indictment found by the grand jury of the city or any county in this commonwealth, charging a party with any felony, breach of the peace, or other indictable offence, shall, if such party be acquitted by the petit jury, on the traverse of the same, be paid out of the county stock, by the city or county in which the prosecution commenced.’</p> <p>“By the Act of 23d September, 1791, § 14, Brightly 643, pi. 14, it is provided, ‘ Where any person shall be brought before a court, justice of the peace, or other magistrate of any city or county of this commonwealth, having jurisdiction in the case, on the charge of being a runaway servant or slave, or of having committed a crime, and such charge, upon examination, shall appear to be unfounded, no costs shall be paid by such innocent person, but the same shall be charged to and paid out of the county stock 'of such city or county.’</p> <p>“ The Act of 28th March, 1814, § 13, Brightly 426, pi. 8, provides, ‘In case of conviction in any Court of Oyer and Terminer, Quarter Sessions, or Mayor’s Court, all costs shall be paid by the party convicted, but when such party shall have been discharged according to law, without payment of costs, the same shall be paid by the county. In cases of surety of the peace, the costs shall be paid by the defendant, the prosecutor, or the county, as the court may direct. ■ In all other cases, all costs shall be paid according to the laws heretofore enacted and in force.’</p> <p>“ The present case does not come within the provisions of the Act of 1814, because he was not convicted. See 4 Ser. B. 451. And this is the plain reading of the law.</p> <p>“Under the acts of 1791 and 1797 above quoted, the county would be liable to pay the costs in this case. Does the Act of 1804 so change the law as to take away such liability. That act of 1804 only authorizes the petit jury, on acquittal, to impose the costs on the defendant or prosecutor, where the offence with which he is charged is below the grade of felony.</p> <p>“ As here, the first count in the indictment charges a felony, of which the defendant was acquitted, we think the case is not within the Act of 1804, and that the county is liable to pay the costs, and we enter judgment on the case stated for the plaintiff.”</p>

<p>It is the duty of the coroner to hold an inquest super visum corporis, in all cases where there is cause to suspect that the deceased has been feloniously destroyed.</p> <p>It is his duty in such eases to avail himself of professional skill and aid, and his contract will bind the county to the payment of a reasonable compensation, for making a post mortem examination.</p> <p>The case of Allegheny County o. Watts, 3 Barr 462, affirmed.</p>

<p>In an action against a prosecutor, a magistrate and constable, for conspiring together to arrest and imprison a person without probable cause, evidence that each one acted illegally' or maliciously against the plaintiff, will not support the action, without proof that the defendants conspired together to do such acts.</p>

<p>Where on the traverse of a libel for divorce, which contains a general allegation of cruel and barbarous treatment, if .the respondent goes to trial without having demanded a specification of the particular acts relied on to sustain it, he will be presumed to have waived such notice.</p> <p>Whether certain ambiguous words proved to have been uttered by the respondent involved a threat of personal injury, was a question to be determined by the jury.</p> <p>Words and acts not implying any such threats were properly submitted, to show the terms on which the parties lived.</p> <p>Breinig v. Meitzler, 11 Harris 156, affirmed.</p> <p>The record of a surety of the peace by the wife against her husband, which was dismissed by the court, was not evidence against her on the trial of the divorce.</p> <p>The amount of alimony is a question for the discretion of the court which pronounces the decree, and is not subject to review in this court.</p> <p>It is the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a divorce, such reasonable sum as will enable her to carry it on.</p> <p>The husband has not an absolute right to annul a decree for alimony, by the mere presentation of his petition agreeing to receive and cohabit with his wife.</p> <p>The court may annul or suspend the sentence in a proper case, but are not bound to do so in every case. It is by the words of the act left to the discretion of the court.</p>

<p>Where one was indicted for keeping a gambling-house, and his recognisance was forfeited, a person who lost money at play, in such house, was not entitled to claim any part of such recognisance:</p> <p>1 st. Because the risking his money was a voluntary act, and volenti non Jit injuria.</p> <p>2d. Because the Act of 1794 provides the only method by which money lost at play may be recovered back, and the remedy provided must be strictly pursued.</p> <p>3d. Because such a claim is not within the provisions of the Act of 22d April, 1846, not being the direct result of the crime, nor is the amount of the injury fixed and ascertained by the same evidence which proves the offence against the public.</p> <p>4th. When a statute creates a right, and limits the time for bringing an action upon it, and the limitation is suffered to expire without any action, the right itself is gone, and cannot be revived by being claimed in another proceeding.</p>

, The defendant below, David Jillard, was indicted., for selling spirituous liquors in violation of the Act of 14th April, 1855. The indictment was found at December. Term, 1855, and came on for trial on the 7th February, 1856.

<p>Where a defendant in a criminal prosecution is acquitted on the plea of the statute of limitations, the jury may still impose the costs of prosecution upon, him.</p> <p>But the costs accrued upon former indictments for the same offence, which were quashed or judgment arrested upon conviction, cannot be taxed, in such case, as part of the costs of prosecution.</p>

<p>A judgment entered on bond and warrant of attorney is neither within the letter nor the reason and spirit of statute 8 & 9 Wm. 3, eh. 11, § 8.</p> <p>Executions upon such judgments are controlled under the equitable powers of the courts in this state, in such manner that no injustice may be done to defendants.</p> <p>On a judgment entered upon bond and warrant of attorney for a stated sum given as indemnity to the plaintiff, execution may issue without scire facias, suggestion, or other proceedings to ascertain the damages.</p>

<p>Appeal from the decree of the Court of Common Pleas of’ Lehigh county.</p> <p>■ This was an appeal by Charles Seip from the decree of the court distributing the proceeds of the sheriffs’ sale of the real estate of Adam Kline. David Heimbach died in 1834 seised of the premises out of which the proceeds arose, and which had been accepted at the valuation by his son Solomon. An adjoining property had been taken under the same proceedings by Daniel M. Heimbach. These were mill properties, Daniel’s being on the upper part of the stream, and both mills being propelled by the same waterpower. After accepting the property under the valuations and giving the recognisances, Daniel sold to Solomon an additional water privilege for $500. Afterwards Daniel’s part was sold under proceedings on the recognisances by which the title of Solomon to this additional waterpower was defeated. Solomon conveyed his part to Adam. Kline, as whose property it was sold by the sheriff, and the proceeds brought into court - for distribution. After paying undisputed liens, there remained the sum of $880.86. This amount, by a report of a commissioner, filed September 11, 1849, was distributed to Benjamin Ludwig. Exceptions to this report were filed by Jacob D. Boas, which were argued on the 6th February, 1851, and on the 28th November 1851, were dismissed and the report confirmed absolutely.</p> <p>On the 10th December, 1851, Charles Seip, assignee of Daniel' M. Heimbach, appeared by his counsel and obtained a rule to show cause why the confirmation of the report should not be opened for a rehearing, and Seip be permitted to take out of court the balance of the fund under an assignment from Daniel M. Heimbach. This rule as to the hearing was made absolute on the 8th May, 1852. Testimony was taken and returned, and on the 17th December, 1853, the court below discharged the rule.</p> <p>On the 16th December, 1853, the day before this last rule was discharged, Seip, by his counsel, presented a petition, setting forth that the fact of the payment of the recognisance to Daniel M. Heimbach by Solomon was alleged on one side and denied on the other, and that this fact was material to the decision of the matter, with an affidavit of the attorney annexed. This issue, was refused, and the money being decreed according to the report, Charles Seip, appealed to this court and assigned for error the refusal of the court below to grant the issue prayed for.</p>

<p>When articles of agreement are entered into for the sale and purchase of real estate, the purchaser is considered in equity the owner of the land, subject to the payment of the stipulated price; and this results, not from the payment of the purchase-money, but from the contract.</p> <p>If the premises are sold at sheriff’s sale, on a judgment against the vendor entered before the date of the contract, for a sum exceeding the amount the vendee was to pay, the latter is entitled to the surplus in preference to a creditor of the vendor, whose judgment was obtained after the date of the articles.</p> <p>In sheriff’s sales, interest is allowed on liens to the day of sale.</p>

<p>,Appeal from the decree of the Court of Common Pleas of Bucles county, distributing the proceeds of the sheriff’s sale of the real estate of Michael F. Snyder. Henry Sames, the appellant’s intestate, on the 4th April, 1846, recovered a judgment against Isaac Afflerbach for the sum of $400. Afflerbach sold the real estate upon which this judgment was a lien, to Michael F. Snyder, against whom George Hager obtained a judgment on the 24th July, 1850, for $881.88; and on the 7th April, 1858, obtained a judgment against the same for $1000. On the 28th March, 1851, by an agreement signed by Henry Sames and Michael F. Snyder, and reciting the judgment against Afflerbach, it was agreed that “ the above judgment be revived for another period of five years, for the said sum of $800 (the 'penalty), with 'release of all errors, agreeably to the Acts of Assembly in such case made and provided,” and was filed and entered upon the appearance and judgment dockets.</p> <p>• The real estate of Snyder, purchased from Afflerbach, was sold by the sheriff, and the proceeds were brought into court for distribution. The court below, being of opinion that the amicable revival of the judgment not being signed by Afflerbach, the defendant in the judgment, but only by Snyder, the terre tenant, it was ineffectual to preserve the lien, and decreed the proceeds first to Hager’s judgment, and the residue to Christman’s.</p> <p>■ From this decree the administrator of Sames appealed.</p>

<p>Error to the Common Pleas of Chrbon county.</p> <p>This proceeding was instituted by Jacob Beer against Jacob Cole, under the Act of 14th April, 1851, before a justice of the peace, and removed into the Common Pleas by appeal.</p> <p>In addition to the facts stated, in the opinion of his Honour, Mr. Justice Knox, the defendant on the trial of the cause in the court below, showed that 23 or 24 years before the trial, one Jedediah Irish owned the land on which the road is claimed, and that in clearing his land he changed the location of the road, and then offered to ask the witness, “ What did Irish say was the purpose for which he opened the road at the time it was being opened?” To which defendant objected, and the court sustained the objection, and the plaintiff excepted.</p> <p>The court below charged substantially that the defendant had established the existence of the road.</p> <p>The jury found for the defendant.</p> <p>The plaintiff sued out this writ, and assigned for error the charge of the court and the rejection of the evidence above stated.</p>

<p>In every insurance upon a vessel, there is an implied warranty upon the part of the assured, that at the time of sailing, the vessel shall be seaworthy for the voyage insured.</p> <p>This principle as applied to steam vessels requires, not only that the hull shall be staunch, tight, and strong, but that the machinery shall be properly constructed, and of sufficient power to perform the contemplated voyage.</p> <p>If a ship, in a short time after leaving port, becomes leaky and founders, or-is obliged to return without any visible or adequate cause, the presumption is that she was not seaworthy when she sailed.</p> <p>In such cases the onus probandi is thrown upon the assured to show that the inability arose from causes subsequent to the commencement of the voyage.</p> <p>A waiver of seaworthiness, when not expressed in the contract of insurance, is only to be inferred upon clear evidence that the insurer knew the vessel was unfit to perform the voyage insured, or that a full representation of the defects of the ship was made by the assured before the completion of the contract.</p> <p>The fact of seaworthiness is for the jury, and the presumption is in its favour, and the onus upon the party denying it; but this may be shifted by the inability of the vessel to perform the voyage without any accident or adequate cause to account for the failure.</p> <p>Upon a motion for a nonsuit the court is not bound to give specific answers to points propounded — the granting of the nonsuit is a sufficient answer.</p>

<p>The conditions attached to a policy of insurance are as much a part of it as if incorporated into the instrument itself.</p> <p>Where- three adjoining houses were insured in one policy, for a specified sum on each, and one of them which was occupied as a shoe store was after-wards, without the knowledge or consent of the insurers, changed into a grocery store, in which gunpowder was kept, and from an explosion of which all the houses were injured, the conditions annexed to the policy requiring groceries and gunpowder to be specified and pay a higher rate of premium,</p> <p>It was Held, That the contract was entire, and that there could be no recovery for the injury to any of the houses, although the owner did not know that the tenant kept gunpowder in the house.</p>

<p>Error, to the Common Pleas of Wayne county.</p> <p>This was an action on a policy of insurance at the suit of P. W. Slockbower and R. B. Slockbower, against the Lycoming Mutual Insurance Company.</p> <p>On the 19th February, 1852, a man by the name of Ronk, effected an insurance with the • defendants for five years, on a building in Honesdale for $383, and gave a premium note for $66.60. In the application, the estimated cash value of the property was $500. Ronk conveyed the premises to Slockbower, and with the consent of the company transferred to him the policy of insurance, and his premium note was substituted for Ronk’s.</p> <p>The plaintiff was desirous of obtaining an additional insurance on the property, and applied to the agent of the company for that purpose, who declined taking any further risk upon the property.</p> <p>On the 9th of August, 1853, Slockbower took an .insurance on the same building in the North American Insurance Company for the sum of $300, of which he gave notice to the company, defendant, through his attorney.</p> <p>The secretary replied to this notice, stating that any further insurance on the property would conflict with the terms of the policy held from the defendants, and he was referred to M. A. Bidwell, the agent of the defendant. The plaintiff alleged that Bidwell had consented to the increase of the insurance, and had collected assessments from the defendants since then, both of which facts were controverted by the defendants.</p> <p>The building was consumed by fire in March, 1854, and this suit was brought to recover the amount of the insurance.</p> <p>A recovery was resisted by the defendants on the ground that they were only liable in any event to pay the pro rata of $333 -in connexion with the other insurance of $300.</p> <p>The policy on which the suit was brought, contained the following clauses:—</p> <p>“ And provided, further, That in all eases of other insurance upon the property .hereby insured, whether prior or subsequent to the date of this policy in case of loss or damage by fire, the insured shall not be entitled to demand and recover on this policy -any greater proportion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on ■the said property.</p> <p>. “ And it is also agreed, that this policy is made and accepted subject to and in reference to the terms and conditions of the act of incorporation and by-laws of the said company, which are to be used and resorted to, to explain or ascertain the rights and obligations of the parties hereto in all cases not herein otherwise provided for.”</p> <p>“ It is also agreed, that the aggregate amount insured in this and other companies on the above-mentioned property shall not exceed two-thirds of the estimated cash value."</p> <p>On the trial in the court below, the defendants among other things requested the court to charge the jury,</p> <p>. That if the jury believe the property was insured for more than two-thirds of its value, then this policy is void, and the only evidence of its value to be regarded by the jury, is that fixed on ■it by the parties in their application for insurance.</p> <p>That the policy is void by the act of the plnintiff in getting an insurance in another company, without the consent of the defendants.</p> <p>The court below (Barrett, P. J.) after stating the facts and the ■points, charged as follows:—</p> <p>“ The Lycoming Insurance Company had a right at the time they were notified of the additional insurance to object to it, by the terms of their policy. It was the duty of the plaintiffs to give them notice of it, and they did so through the letter of Mr. Drake. rThey might have acted upon it, and have withdrawn their responsibility. Did they do so ? If they did, and thereafter treated the ■policy as void, their responsibility ceased. If they did not, but continued to treat it as a good, valid, and subsisting policy, claiming from the plaintiffs the benefits accruing to the company under it, they should be held to its conditions. Their consent to the second policy was certainly necessary, but that consent may be inferred from their acts. If they gave their consent either express or implied to remain insurers after the second policy issued and with ■full knowledge qf it, the jury may infer that they deemed such additional policy warranted by the increased value of the property. If not on this account, did they agree to become co-insurers with the other company, and does the- evidence and the acts of the company satisfy you that such was the case ?</p> <p>“ The defendants do not allege that they at the time of such 'notice declared the policy void, or abandoned it. On the contrary, they continued to levy regular assessments upon it and collect the same from the plaintiffs up to the time the property was destroyed by fire, and, according to the evidence of Mr. Bid-well their agent, levied one or two assessments afterwards.</p> <p>■ “ Does the evidence satisfy you that the company consented to the second policy of insurance ? If they did, and on account of the increased value of the property, the plaintiffs would be entitled to recover the full amount of the policy. If however they only consented to become co-insurers with the other company, then the ■plaintiffs would only be entitled to recover from the defendants their proportion of the loss estimating it at $333.”</p> <p>(1st point stated above). “This point is affirmed: no other evidence of value was admitted. If, however, a second policy was recognised by defendants, the applications in both cases would be evidence.”</p> <p>To the 2d point. “ This point in the affirmative, unless the defendants, by their own acts, afterwards continued it in force. They had no right to mislead the plaintiffs by treating it as a valid policy, if they considered it void.”</p> <p>3d point. “ This is fully answered in our general charge, and depends on the question of fact, already submitted.”</p> <p>. The jury found for the plaintiffs $333.33. •</p> <p>The insurance company sued out this writ, and assigned for error the charge of the court and the answers to the points.</p>

This was an appeal from the decree of the Register’s Court, reversing the decision of the register, admitting to probate, and issuing letters testamentary thereon, of the will of Mrs. Anne Josephine Fransen, deceased.

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an amicable action of ejectment by Peter Barker and Elizabeth his wife, late Elizabeth Kline, against William K. .McFerran, to try the right to one undivided eighth part of a lot of ground and three tenements, situated in the city of Philadelphia. Peter Kline, the grandfather of defendant and father of Elizabeth Kline, died on the 13th August, 1845, having previously, on the 14th July, 1845, made his last will and testament, in which he specifically devised the premises in dispute to the defendant. The last clause contains a revocation of all former wills, and concludes, “ In witness whereof, I have hereunto set my hand and seal,” &c.</p> <p>The testator’s name appears at the end of the will, and also his mark. And it is attested by James Walker, R. Alex. Philson, and Daniel M. Fox. On the 20th of August, probate of the will was made before the register by Philson and Fox, two of the subscribing witnesses, as follows, “ that they were present and did see and hear Peter Kline, deceased, the testator therein named, make his mark, seal, publish, and declare the same, as and for his last will and testament, and that at the doing thereof he was of sound and disposing mind, memory, and understanding, to the best of ;their knowledge and belief.” And on the same day letters testamentary were issued by the register to one of the executors named in the will. Walker and Philson, two of the subscribing witnesses, are now deceased. Eox, the other witness, testified, “that he drew the will of Peter Kline, and that he knows that he was a witness to the will because his signature is appended thereto as such, and the testator’s name is in his handwriting, but beyond that fact he has no memory concerning it. That in the course of his business as a conveyancer he has. drawn many wills for different persons, but in regard to the will of the said Peter Kline he does not now recollect any circumstance whatever. That relative to its execution his memory is a blank.”</p> <p>On the 3d of January, 1856, the decease of R. Alex. Philson, one of the subscribing witnesses, was proved before the register, .and the handwriting of his signature to the will identified.</p> <p>Elizabeth Barker is a daughter of Peter Kline, and claims the one undivided eighth part of the premises.</p> <p>The only questions raised in the cause were, whether the evidence showed such an execution of the will as would entitle the defendant to hold the devised premises, and the effect to be given to the decree of the register admitting the will to probate.</p> <p>The foregoing facts having been embodied in the form of a .case stated, the court rendered judgment for the defendant.</p> <p>Whereupon the plaintiff took a certificate of error.</p>

<p>Error to the Common Pleas of Bucks county.</p> <p>This was an ejectment by Eliza Scott against Edward Ivins, to recover two small pieces of land, tbe one containing 120 perches, and the other 93 perches.</p> <p>The plaintiff claimed the premises under the will of her father, Robert Scott, which so far as material was as follows:—</p> <p>“ I give and devise to my daughter Acksah Quintan, and to her heirs, my tract of about seventy-five acres of land in the said township of Falls, known by the name of the Turkey-hill Farm, together with a bond of twelve hundred dollars I hold against her husband, Alexander Quintan. Also, six hundred and fifty dollars to be paid to her by my executors, in one year after my decease, with moneys arising out of my personal estate, and in case of the death of my said daughter Acksah without issue, the land hereby devised her shall revert back and descend to my daughter Eliza Scott aforenamed, to her, her heirs and assigns for ever, together with the six hundred and fifty dollars, if not before received by my said daughter Acksah in her lifetime, and if her death should happen in the lifetime of her said husband, he to take and enjoy the rents and profits of the farm aforesaid during his life. The farm aforesaid to be subject and to pay the same quantity of rent to my said wife during her natural life that I receive therefor, whether it may be in the possession of my said daughter Acksah, or otherwise notwithstanding.”</p> <p>Robert Scott, the testator, died leaving five children, among whom were Acksah Quintan and Eliza Scott. Acksah and her husband were both dead before the commencement of this suit, leaving no issue. The other three children of the testator were dead, each leaving issue.</p> <p>The defence rested principally upon the ground that the devise gave to Acksah Quintan an estate tail, which, upon her dying without issue, reverted to the heirs of the testator, and that if Eliza could recover at all, it would only be one undivided fourth part, as one of the heirs of Robert Scott.</p> <p>His Honour (Smyser, P. J.,) charged the jury as follows:—</p> <p>“ Three questions are presented in this case for determination.</p> <p>“ 1. Is the land or any part thereof claimed in the plaintiff’s writ, and now in the possession of the defendant, part of the farm devised by Robert Scott to Acksah Quintan, and, on failure of issue, to the plaintiff?</p> <p>“ 2. Is the plaintiff’s right to recover the same, if it ever existed, barred by the statute of limitations ?</p> <p>“ 3. If the plaintiff is on both the foregoing grounds entitled to recover, does she recover the whole, or only her undivided part _ as one of the heirs of Robert Scott ?”</p> <p>(After instructing the jury on the first and second points, to which part of the charge there is no exception by either side, the court instructed them as follows on the third question presented.)</p> <p>“ The answer to this will depend on the construction given by the court to the clause in Robert Scott’s will, devising the ‘ Turkey-hill Farm.’ (The court here read the clause to the jury inconnexion with the codicils.)</p> <p>“ If the limitation of the estate in question is an executory devise, then the plaintiff, if she recovers, recovers solely the whole. If it is void by way of executory devise, and creates merely an estate tail in Acksah Quintan, the first taker, then she having died without issue, the property would revert to Robert Scott’s heirs, and the plaintiff would only recover her share as one of them. The solution of this inquiry depends on whether an indefinite failure of issue is meant, or a definite failure, — that is, a failure within a life or lives in being and 21 years after; if the first, it is an estate tail in the first taker. If the second, it is a good executory devise, and the limitation over to Eliza Scott, the plaintiff, would take effect.</p> <p>“We are of opinion that a definite failure of issue is meant, to wit: at the time of Acksah Quintan’s death. The farm and the $650 are coupled together, in the limitation over, showing, as I think, that it was in the testator’s mind that both should take effect at the same time. But it is expressly provided that the money is to go to plaintiff, ‘ if not received by my said daughter Acksah in her lifetime;’ and the farm is to go over ‘together ;with’ the $650. The language of both the codicils confirms this view, as showing what was the general intent of the testator as to the time when the limitations over of the property given conditionally to Acksah, should take effect. In them he plainly indicates the time of her death as the period in his mind for the occurrence of the contingency. Although not decisive of the particular intent in the clause in question, they throw light upon it. We search out the intent of the testator as we can gather it from the four corners of the will; for, if legal, it will and ought to govern. Regarding this devising clause, then, as a good executory devise; it follows that the whole title and right of recovery, whatever you may find to be its extent, is .in the plaintiff, so as to entitle her, if she recovers at all, to recover an entirety, and not-an undivided purpart.” • •</p> <p>• The jury found for the plaintiff for one of the tracts described in the writ.</p> <p>■ The defendant brought this writ, and assigned for error the foregoing instructions of the court.</p>

<p>Error to tbe Common Pleas of Delaware county.</p> <p>This was an action by Frederick Fairlamb, administrator, of -Elizabeth Fairlamb, deceased, against Joseph Gibbons, executor of Joseph Gibbons, deceased, to recover a legacy bequeathed to the said Elizabeth.</p> <p>The parties agreed upon a ease stated in the nature of a special verdict, on which the court below rendered a judgment for the plaintiff for $6000, with interest, from 21st December, 1858. The defendant brought this writ of error.</p> <p>The facts of the case, and the points involved, are sufficiently stated in the opinion of his honour, the chief justice.</p>

<p>Appeal from the Register’s Court of the city and county of Philadelphia.</p> <p>Christopher Ruoff died on the 28th of August, 1853, at about six o’clock, p. M. About nine o’clock of the morning of his death he asked Christian Hininger to write his will, and said if he should die he wanted all his property to go to his wife. Hininger went to his own house, which was near to Ruoff’s, and wrote the paper in question, and brought it back and read it to the deceased, and he said that was his will. Hininger says, “ he was very weak in Ms body, but had his full senses. I raised him up in bed for him to sign the will, and he took the pen in his hand; he said he was too weak to write his name and that it would do as well without it, because he requested all persons -to witness that he left everything to his wife.”</p> <p>The same facts were testified to substantially by three other witnesses who were present.</p> <p>On this proof the register admitted the paper to probate as the last will and testament of Ohi’istopher Ruoff, and issued letters to the widow. John Ruoff, a brother of the deceased, appealed to the Register’s Court. The court sustained the appeal and reversed the decree of the register, and also refused to grant a precept demanded by the appellant for an issue.</p> <p>' From these decisions of the Register’s Court, Pauline Ruoff, the widow, appealed to this court.</p>

<p>This court will not interfere with the decision of the court below in road views upon matters of fact, and depending upon evidence other than the record, unless there has been manifest error; and no evidence will be noticed except such as was before the Quarter Sessions and sent up with the record.'</p> <p>A report of viewers laying out a road is not vicious because it was drawn .by the attorney for the petitioners.</p> <p>An attorney at law has no authority as such to administer an oath, but if done in the presence, and by the direction of a person having authority, it will be valid and binding.</p>

This was an action of ejectment brought in the court below by-Alexander B. Carver, against James W. Paul, to recover a certain strip or piece of ground, being the northern part of the soil of Tidmarsh street as formerly laid out between Twelfth and Thirteenth and Christian and Catherine streets, in the consolidated city of Philadelphia.

These are five suits in equity, brought respectively by four of the granddaughters and one grandson of James Lyle, deceased, against the defendants, who are trustees under his will. Their object is to obtain a conveyance of the legal estate in the subjects of the trust. The testator’s will was dated July 26, 1826, and he died on the 10th of August following, leaving two children: Mary, the wife of Henry Beckett, and Ellen, the wife of Hartman Kuhn.

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal from the decree of the Orphans’ Court of Philadelphia, confirming the report of an auditor, distributing the amount in the hands of H. G. Jones, Esq., administrator of the estate of William Spier, deceased.</p> <p>The intestate died at Philadelphia on the 10th day of June, 1853. He left a widow, Anna M. F. Spier, surviving him, who at the time of his death, was living in the city of Gottingen, in the kingdom of Hanover. Spier had been in this country about five years. A short time before his death, he had written to her to join him in this country, which she promised by letter to do. In the mean time Spier died, and his property was taken possession of by an administrator, and converted into cash, after which Mrs. Spier arrived in this country.</p> <p>.' Before the auditor Mrs. Spier claimed to have $300, under the Act of 14th April, 1851. But her claim was disallowed, and the fund was distributed to the creditors of Spier, leaving a balance of $16.93, which was awarded to her.</p> <p>Among the claimants was a Mrs. Julia Sackriter, who claimed the sum of $352.50, as housekeeper and nurse of the decedent; the auditor allowed $50 of this amount, rejecting the balance of the account.</p> <p>Mrs. Spier filed exceptions to the report of the auditor, which the court below dismissed, delivering the following opinion, per Thompson, P. J.:—</p> <p>“ The decision of the auditor upon the claim of the widow of the decedent, to an allowance of $300, under the provisions of the 5th section of the Act of April 14,1851, is entirely correct. That act was designed to prevent the family of a decedent from being deprived of a home immediately upon his death, and the property ■which the law exempts is to be retained by the widow. Neither the intention nor the language of the act apply to the case of a wife who has lived in a foreign country for years, separated from her husband, and who never formed part of his family here.</p> <p>“ The exceptions to the claim of Mrs. Saekriter, for services rendered to the decedent, as allowed by the auditor, do not appear to be sustained. The fact that the decedent, some time before his death, settled with her for her services to him, proves that he recognised them as not gratuitous. The testimony proved that after the decedent had been taken ill, and before his removal to the hospital, the claimant returned • and took charge of his house and property, and remained there during his absence, and until his death; for this service the auditor has allowed her the sum of $50, which the evidence seems to justify. It is also objected, that Mrs. Saekriter is a married woman, and on that account is not entitled to receive payment for her services. It appears, however, that Mrs. Saekriter was left by her husband to obtain her own living. He permitted her to receive payment from the decedent in his lifetime; and even if she could not sue in her own name, at law, surely a court of equity ought not in such a case to reject her claim.</p> <p>“ The exceptions are therefore dismissed, and the report confirmed.”</p> <p>Whereupon Mrs. Spier appealed to this court.</p>

This was an amicable action of debt, in which the Commonwealth of Pennsylvania was plaintiff, and John Runk and others, receivers of the President and Managers of the New Hope and Delaware Bridge Company, were defendants. The New Hope and Delaware Bridge Company was incorporated by acts of the legislatures of Pennsylvania and New Jersey, passed in 1812 and 1813. The last dividend made by the company was on the 1st October, 1836.

<p>Certiorari to the Common Pleas of Philadelphia.</p> <p>This was a proceeding under the charter of the North Pennsylvania Railroad Company, and the 11th section of the Act of 19th February, 1849, entitled “An act regulating railroad companies” to assess damages sustained by James Davis and Nathan Leeds, by reason of the railroad company having appropriated for a depot certain property held by Davis & Leeds under a lease from Charles W. Warnick and Frederick Leibrandt.</p> <p>The petition for the appointment of viewers was presented by the railroad company. The case showed that Davis & Leeds were in possession of the ground under a lease from the owners for two years from the first of April, 1852, at an annual rent of $600 per annum, with a covenant on the part of the lessors to renew' the lease for three years at $800 per annum. The railroad company purchased the reversion from Warnick & Leibrandt, and entered upon the premises in the summer of 1853.</p> <p>The reviewers were appointed on the 6th of May, 1854, and on the 7th of July following, reported $4000 in favour of Davis & Leeds, “ for damages, including the damages for non-renewal of the lease.”</p> <p>To this award the railroad company filed exceptions, the substance of which was, that after the case was closed, James Davis, one of the claimants, held conversations with some of the viewers in relation to the damages, and communicated with one of them on the same subject by letter.</p> <p>Testimony was taken by both parties on the subject of the exceptions, and on the 25th November, 1854, after argument, the court below dismissed the exceptions and confirmed the report of the viewers.</p> <p>The railroad company removed the cause to this court and assigned the dismissal of the exceptions for error, and also that the Court of Common Pleas had no jurisdiction, and the viewers had no authority or jurisdiction to award damages for a breach of contract in the refusal to renew the lease.</p>

The defendant pleaded not guilty. On the trial in the court below, the jury found a special verdict, of which the following are the material facts:— The defendant was collector of state and county taxes for the borough of Susquehanna. The plaintiffs’ property in that borough was assessed as follows: — Machine shops, foundries, freight and passenger house, $27,000 valuation.

This was a scire facias on a mechanic’s lien, filed by John M. Stettler, the plaintiff below, against The Third Associate Beformed Presbyterian Church, for tin-roofing, &c., furnished in the erection of the church. The lien was filed on the 24th July, 1854. The defendants pleaded that after the work was done, &c., the building, on the 2d of April, 1854, was consumed by fire, and that plaintiff ought not to have or maintain his lien.

This was a scire facias on a mechanic’s lien, filed by Joseph Singerly, against Richard Cawley, owner and contractor.

<p>A vendee onee fairly in possession of land under articles of purchase, but ousted by illegal means, is entitled to recover in an action of ejectment, without bringing into court the balance of the purchase-money due upon the articles.</p> <p>Time is not of the essence of real contracts, unless made so by the express agreement of the parties, or plainly indicated by the attending circumstances.</p>

This was an action of assumpsit, brought by Coleman; Hutton & Co. against Frank Smith, on the following bill or draft:— Bio Janeiro, 20th of March, 1850. — Bs. 9,360 $>000, at four months precisely from this date, you will pay by this sole of exchange, to me or to my order, the amount of nine contos, three hundred and sixty milreis, in paper currency, value received per “American barque Lydia Ann,” and the day it is due you will effect the payment. Frank Smith.

This was an action brought by the Boston Locomotive Works against John W. Middleton, on the following promissory note:— $2084. February 24, 1858.

<p>In a suit by the holder of a negotiable note who purchased it at a greater rate of discount than six per cent, per annum, against the.maker, it is no defence to any part of the amount of the note, to show, that it was made for the accommodation of another, who endorsed and sold it to a person from whom the plaintiff purchased it, at a discount of one and one-half per cent, per month.</p> <p>A party may lawfully purchase any security, at a greater discount than six per cent., if it be a fair purchase, and not resorted to as a contrivance to evade the statute against usury.</p>

<p>Where partnership property was sold on separate executions against the individual partners, at the same time, by a joint sale, it leaves the interests standing in the proceeds as it existed in the property at the time of the levy.</p> <p>In such case the fund must be distributed subject to the settlement of the accounts between the partners.</p> <p>Where one of the partners was in advance, more than the whole amount of the proceeds, his separate creditors, after deducting the amount of partnership executions, were entitled to the whole fund, in exclusion of the other partner, and his separate execution-creditors.</p>

On the 31st July, 1851, James I. Boswell entered into a limited partnership with two' other parties, both of whom resided out of this state, to carry on a general wholesale dry goods business. The business was conducted in the-name of James I. Boswell, who was the only general partner. The firm having failed, a general assignment was executed, and the. assignees settled their account, which was confirmed, and an auditor was appointed to make distribution.

<p>Where the conditions of a sheriff’s sale stipulate that a designated proportion of the purchase-money shall be paid when the property is struck down, such payment is not to be construed as a penalty for, but a pledge to prevent, a failure to complete the purchase.</p> <p>A first purchaser failing to pay such stipulated sum is liable for the difference and resale, although the property was not set up again immediately as stated in the conditions, but was afterwards resold on an alias writ.</p> <p>The first purchaser is not discharged from his liability for the difference on a resale, by the fact that a holder of the mortgage upon which it was sold, became the purchaser at the second sale.</p> <p>Whether the sale did or did not discharge the mortgage debt, does not affect his liability for the difference between the sale and his bid.</p>

<p>Where a building association who holds the bond of one of its members for the amount of money advanced, including a premium on the loan, forfeits the membership of the obligor and proceeds upon the bond for its recovery, the transaction is to be treated as a loan, and not as a means of enforcing his contributions as a member.</p> <p>As a loan, no more can be recovered than the amount actually advanced, ■with interest, deducting the payments made.</p> <p>Voluntary money associations cannot charge their members any more than strangers with usurious interest.</p> <p>The Act of 8th May, 1855 (P. L. p. 519), does not retroact on this case to enable the association to recover the premium.</p>

<p>The offence of usury under the Act of 2d March, 1723, does not consist in the making of a corrupt bargain, for more than the legal rate of interest, but for talcing it on any bond or contract.</p> <p>Where one demanded and received from another $25 for the loan or forbearance of $600, for six days, it constituted usury under the act.</p> <p>The English statutes of usury have never been in force in this Commonwealth.</p>

This was an action of assumpsit brought by William R. Seaver against William H. Blair and Thomas H. Hutton, trading as Blair & Hutton. Seaver was a salesman in the employ of the defendants, tea merchants, and claimed compensation for his services for one year. The defendants were the successors of Russel & Blair, having purchased the interest of Russel.

This was an action on the case brought by Henry Earle against George Vanleer. The narr. was in deceit for false and fraudulent representations in the sale of a horse, and warranting him to be sound and kind in harness. The defendant pleaded not guilty, and upon this issue the cause was tried.

This was an application to the Supreme Court sitting in banc at Philadelphia by Susan Wilson for a writ of habeas corpus, to be directed to the keeper of the jail of Philadelphia county.

<p>Error to the Common Pleas of Montgomery county.</p> <p>This was an action of covenant brought by Aaron Schwenk against The County of Montgomery, upon an article of agreement, dated 27th September, 1852.</p> <p>Qn the trial of the cause, in the .court below, the plaintiff offered in evidence the agreement signed by the plaintiff and Michael Hartzell, one of the commissioners of the county, and with the county seal affixed to it.</p> <p>The admission of the agreement as evidence was objected to by the defendant, and rejected by the court, to which the plaintiff excepted.</p> <p>It was again a second and third time offered under different aspects, and after witnesses had been examined in relation to its execution, and each time rejected, and bills sealed.</p> <p>The verdict was for defendants.</p> <p>The plaintiff sued out this writ, and the only error assigned here was as follows:—</p> <p>The court below erred in rejecting the offers contained in the first, second, and third bills of exceptions sealed at plaintiff’s request.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action of debt, brought by Henry W. Gault against James Vinyard, Próthonotary of the Court of Common Pleas of Philadelphia county, to recover the penalties under the Acts of 1814 and 1821, for taking other and greater fees than the fee bill allows, and for not keeping up in his office a fair table of fees as required by the Act of Assembly. The declaration contained seventy-six counts, twenty-two of which alleged that the defendant took other fees than the fee bill allows; twenty-six counts alleged the taking of greater fees than the fee bill prescribes, and twenty-eight counts charged the omission to put up in his office a table of fees, &c.</p> <p>His Honour (Gibson, J.) being of opinion that the court had not jurisdiction of the cause, directed a nonsuit.</p> <p>The plaintiff moved to take it off, which was disallowed.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was au action of assumpsit brought by Martha Burr against the administratrix of her deceased son, Israel R. Burr, upon a promissory note, of which the following is a copy:</p> <p>“Philadelphia, May 29, 1832.</p> <p> u </p> <p>“ Three hundred and sixty-five days after date, I promise to pay Martha Burr, four hundred dollars, or the interest thereof yearly, at six per cent.</p> <p>(Signed.) Israel R. Burr.”</p> <p>The defendant pleaded the statute of limitations, and the principal question in the case is, whether the evidence submitted by the plaintiff was sufficient, if believed by the jury, to avoid the bar of the statute ?</p> <p>Mary Penny, the daughter of the plaintiff, and the sister of the defendant, was the only witness examined. She testified as follows:</p> <p>“ I knew decedent, he was my brother; plaintiff is my mother. About two years before his death, I was present at an interview between him and my mother, at my daughter’s residence, Walnut street, above Eighth. Mother was making a visit to me and my daughter. In the meantime, brother Israel came to see us. Mother says, ‘ Israel, can thee let me have a little interest money on that note which I hold of thine?’ He said, ‘How much would thee like, mother ?’ She said, ‘ Four or five dollars,’ and he gave her seven. He said, ‘ Is that sufficient ?’ She said, ‘ It is for the present.’ They had a conversation at the same time, but I don’t recollect what it was. I was very ill at the time; I was confined to my bed in the second story back room in my chamber; the conversation took place there.”</p> <p>Israel Burr, the maker of the note, died in September, 1851.</p> <p>The learned judge of the District Court, reserving the point as to the sufficiency of the evidence, charged the jury, that if they believed the evidence, the plaintiff was entitled to recover; and the jury returned a verdict for the amount claimed to be due on the note, $400 principal, and $322 interest, upon which verdict judgment was entered for the plaintiff.</p>

This was a bill in equity filed in the Eastern District of the Supreme Court by tbe Erie and North-East Railroad Company, upon which tbe complainants moved for a special injunction. The bill set forth tbe act of incorporation dated tbe 12th day of April, 1842.

<p>Error to tbe Common Pleas of Delaware county.</p> <p>This was an action of debt upon an award by Charles D. Manley, administrator with the will annexed of Rebecca Lobb, deceased, against William Hood and George Lobb, administrators of Benjamin Lobb, deceased.</p> <p>The plaintiff’s testatrix was the sister of defendant’s intestate, and prior to -the year 1836, they lived together, — Rebecca being the housekeeper of the family. Benjamin Lobb died in 1836 or 1837, and administration was granted to the defendants, his son and son-in-law. Rebecca preferred a claim against the estate of her brother for services, and the matter was submitted to the arbitrament of three men, who awarded to her on the 10th of October, 1837, $1000 in addition to what she had received. This action was instituted on the 9th of May, 1853, to recover the amount of this award with interest. The process was served upon George Lobb, and returned “nihil” as to William Hood, the other administrator. George Lobb appeared and pleaded to the action.</p> <p>On the trial in the court below, the plaintiff offered the declarations of George Lobb, admitting that the estate of his intestate owed the plaintiff’s testatrix the sum of $1000, which was objected to by defendant’s counsel, but admitted by the court. The award was also offered in evidence and admitted under an exception by the defendant.</p> <p>The court also, against the objection of the defendant, admitted evidence that after the death of Benjamin Lobb, Rebecca lived with George Lobb as his housekeeper. It was testified by a witness, under a similar objection, that at a settlement of the matters pertaining to .the estate of Benjamin Lobb, deceased, between George Lobb and William Hood, the administrators, that the amount of the award in favour of Rebecca was left in the hands of George Lobb, and that he received a credit for the principal and interest in such settlement.</p> <p>The jury were sworn as to both defendants, and on the trial the defendant submitted the following points:</p> <p>■ 1. If the jury believe that an arrangement and settlement was made among the parties interested in the estate of Benjamin Lobb, deceased, to the effect that George Lobb should be credited as administrator, &c., of Benjamin Lobb, deceased, with the amount of the award in favour of Rebecca Lobb to that amount, and that this arrangement was acceded to by Rebecca and settlement made accordingly, the remedy against the administrators upon the award is extinguished, and the suit should be brought against George Lobb personally.</p> <p>2. There is evidence in the testimony of Robert B. Hannum of the existence of such an arrangement.</p> <p>3. An award to be binding must be made in pursuance of a submission between the parties to be affected, and must be certain.</p> <p>4. There is no evidence of Rebecca Lobb having made any submission to the referees; and, as far as she is concerned, they acted without authority from her.</p> <p>. 5. The award has not that certainty which the law requires.</p> <p>6. The award given in evidence does not agree with that declared upon, nor is it made evidence by the proper averments, and the plaintiff is, therefore, not entitled to recover.</p> <p>The court below (Haines, P. J.) charged the jury as follows: — ■</p> <p>“This is an action brought by Charles D. Manley, administrator cum testamento annexo of Rebecca Lobb, deceased, against William Hood and George Lobb, administrators of Benjamin Lobb, deceased, to rceover a sum of money said to have been due by Benjamin Lobb, in his lifetime, to Rebecca Lobb, in her lifetime. It would seem from the deposition of Joseph Esrey, that George Lobb and William Hood agreed to submit to certain referees, pertain matters of dispute between them, and that Rebecca Lobb, who it appears had a claim against the estate of which these gentlemen were administrators, also submitted her claim to the same referees. The parties appeared before the arbitrators, and Rebecca also appeared, and the claims of all of them were urged and passed upon, and an award made giving to Rebecca Lobb the sum of $1000. What was done between the other parties it is not necessary to notice, as it does not affect the case you are trying. The award is in these words—</p> <p>‘ Marple, 10th mo. 12th, 1837-</p> <p>. ‘We the subscribers met and awarded to Rebecca Lobb, for services done for her brother a number of years to be, in addition to what she had, $>1000.’</p> <p>“It is said, and I am- requested to charge you, that ‘there is no evidence of Rebecca Lobb having made any submission to the referees', and as far as she is concerned they acted without authority from her.’ I cannot say there is no evidence of this sort, for Rebecca attended before the arbitrators, had the claim considered, and an award made in her favour, and it is for you to say whether the evidence is sufficient of a submission on her part or not. The whole submission was verbal, and it strikes the court that the fact of her appearance before the arbitrators, and a submission of her claim at that time, was a sufficient submission.</p> <p>“It is further said, and I am requested to charge, that ‘the award has not that certainty which the law requires;’ and that ‘the award given in evidence does not agree with that declared upon, nor is it made evidence by the proper averments, and the plaintiffs are therefore not entitled to recover.’</p> <p>“ In regard to the first branch of this position, I cannot affirm it in terms: it strikes the court that the case furnishes enough to give sufficient certainty to the award: nor can I affirm the second branch here mentioned; there cannot be a question as to the fair understanding of the award, nor do I conceive that the averment in the declaration so far disagrees with the award as to create any substantial difference.</p> <p>“ It is true that an award to be binding must be made in pursuance of a submission between the parties to be affected, and must be certain. I have already said that in the opinion of the court there is evidence of a submission by the parties to this action, that an award was made and that it has sufficient certainty to be binding upon them.</p> <p>“It seems, however, that subsequently to this submission and award, an arrrangement and settlement was made between George Lobb and his co-administrator, William Hood, or rather between the guardians of the minor children of Sarah Hood and the executors or administrators of Benjamin Lobb, and that in that settlement, which extended to the accounts between the administrators, the sum awarded to Rebecca as due her from the estate of Benjamin Lobb, yras retained by George Lobb. It can scarcely be doubted from the evidence in the cause that such an arrangement took place, as the evidence is full upon the point, and I have to say to you that ‘ if you believe that an arrangement and settlement was made among the parties interested in the estate of Benjamin Lobb, deceased, to the effect that George Lobb should be credited as administrator, &c., of Benjamin Lobb, deceased, with the-amount of the award in favour of Rebecca Lobb, and pay Rebecca Lobb that amount — and that this arrangement was acceded to by Rebecca Lobb, and settlement made accordingly, the remedy against the administrators .upon the award is extinguished, and the suit should be brought against George Lobb personally.’ It is due to justice to say, that there is evidence in the testimony of Mr. Hannum, of the existence of such an arrangement, which you ought not lightly to disregard.</p> <p>“From this witness we may learn that at the settlement before mentioned, the whole matter in relation to the estate of Benjamin Lobb, real and personal, was taken into consideration, and that the settlement included the rights and interests of the parties in the real estate as well as the personal. In this view, the evidence is irresistible to prove an arrangement such as before indicated. We have then the fact proved without contradiction, that George Lobb took upon himself, by the settlement of the parties, the payment of the sum awarded to Rebecca Lobb. This was the arrangement entered into by those interested in the estate of Benjamin Lobb, deceased.</p> <p>“ It is said, however, that Rebecca Lobb was not present at the settlement, and did not agree to it at the time or subsequently thereto. This is a question of considerable importance in the cause, and is worthy your serious consideration. If Rebecca Lobb did not agree to the arrangement by which she was to look to George Lobb for payment, and relinquish her rights against the estate of Benjamin Lobb, she cannot be made to pursue George Lobb, and her action is properly conceived against the administration. If, on the contrary, she did agree to the arrangement, and did relinquish her claim against the estate of Benjamin Lobb, deceased, then the present action is improperly conceived, and she cannot recover. The evidence on this point is plain and readily remembered. Mr. Hannum saw her while the arrangement was being made — he says she stated she had never been paid. ‘I stated to her that if she held them both responsible, says the witness— meaning the administrators of Benjamin Lobb — they could not settle it in that way unless security should be given. She said she was perfectly satisfied it should be settled in that way: it would be safe with George.’</p> <p>“ There is other evidence to this point which I need not refer to. -This evidence, I repeat, is to the point of her agreement, and is very strong that she did agree. If the jury believe that she did so agree, then this action cannot be supported, and your verdict should be for defendant. This is a question for you to decide.”</p> <p>The jury found for the plaintiff, $1997.33, and judgment was rendered on the verdict against both defendants.</p> <p>The errors asigned were to the admission of the evidence as stated, the charge of the court, and the entry of judgment against both defendants, while but one was summoned and pleaded to the action.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action brought by Woodhouse against Quinn, before an alderman, on the 4th of March, 1851, and brought into the Court of Common Pleas by an appeal. Before the alderman the plaintiff set out his cause of action to be for “ brick sold and delivered, on account of which defendant contracted to pay a certain judgment, for the payment of which the plaintiff in this suit was held as security, which judgment the defendant has failed to pay and satisfy.” In the Common Pleas, the plaintiff filed a declaration containing the common counts in assumpsit, and laying the cause of action as accrued on the 10th of March, 1851. The cause was tried in the Common Pleas in the absence of the defendant and his counsel, and, as was alleged by him, by a jury that had not been selected in that case, but had remained in the box after trying several other cases, and were sworn in this cause without having been selected by ballot to try this cause.</p> <p>The defendant made a motion for a new trial, which was overruled by the court.</p> <p>Errors assigned: 1. The court below had no jurisdiction; the damages, if any, sustained by the plaintiff below, being consequential, and such are not within the jurisdiction of a justice of the peace.</p> <p>2. The court below erred in permitting the plaintiff below to declare and recover upon an entirely different and distinct cause of action from that on which he brought suit before the justice.</p> <p>3. There was error in the court below permitting the same jury that sat in the former case to be sworn in this case, without having drawn them by ballot, &c., as directed bylaw, the defendant being absent, and not represented by counsel.</p> <p>4. The cause of action, as set forth in the narr., arose after the bringing of the suit, to wit, on the 10th March, 1851.</p>

<p>Error, to the Common Pleas of Indiana county.</p> <p>This was an action of assumpsit, brought by Isaac Gosser, against William H. Richardson, to recover for certain improvements made on premises conveyed by Richardson to Gosser. In addition to the facts stated in the opinion of his Honour, Mr. Justice Black, it appeared that Gosser had brought an action of covenant on the general warranty in the deed, and recovered in that the amount of the purchase-money paid.</p> <p>The jury found for the plaintiffs.</p>

This was an action of ejectment for eighty-one acres of land, in which David Baldridge and wife were plaintiffs, and John McFarland defendant. The parties agreed upon the following as the facts of the case:— In this case it is agreed that the land in controversy belonged to Gen. Arthur St. Clair, in fee, prior to 16th August, 1795.

<p>Error to the District Court of Allegheny county.</p> <p>On the 25th day of May, 1852, William Lamping issued a writ of foreign attachment against John Hance, with notice to William Bingham as garnishee, and which was served on him by copy on the same day.</p> <p>On the 5th of June, 1852, Wm. Bingham & Co. received at Pittsburgh, from steamers “Malta” and “Empress,” eleven hogsheads of tobacco, marked “Hance & Green,” to be forwarded by Bingham’s Line, to W. Starr & Sons, at Baltimore. Bingham & Co. gave a receipt as follows:—</p> <p>“ Received of steamer Malta, the following packages, marked as per margin, which we promise to deliver to W. Starr & Sons, Baltimore, &c.</p> <p>“ Hance & Green ..... 4 Hhds. Tobacco.”</p> <p>Judgment was obtained in the attachment suit against Hance, on the 28th January, 1853, and a scire facias issued against Bingham, the garnishee, to which lie pleaded milla bona. Interrogatories were filed, to which the garnishee answered that he had not at the time of the service of the attachment upon him or since, any property of the defendant Hance in his possession, and denied all knowledge of Hance’s interest in the eleven hogsheads of tobacco, shipped to Baltimore. Hance resided in Belmont county, Ohio, and was a member of the firm of Hance & Green. On the trial the answers of the defendant were read, and it was proved that "the tobacco was shipped by Hance & Green to W. Starr & Sons, at Baltimore, to be sold and accounted for to them. The value of Hance’s interest in the tobacco, it was admitted, was more than sufficient to pay the amount of the judgment.</p> <p>The defendant demurred to the evidence. The court below (Hampton, P. J.) entered judgment for the plaintiff.</p> <p>The defendant, Bingham, prosecuted this writ of error.</p>

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an action on the case by David Mohney and William Girtz against George Cook, for injuries done to the plaintiffs’,boat, by a dam erected by defendant in Redbank Creek, in Armstrong County. The evidence in the case shows that the plaintiffs were the owners of a flat-bottomed boat, which was laden with pig-metal, and was descending the creek on its way to market, in the month of November, 1852. The boat was strongly built, and had a skilful pilot and an efficient crew. Before that time the defendant had erected a dam across the creek, of the height of three or four feet, and continued to maintain it there. The plaintiffs’ boat, while descending the stream, was wrecked on this dam, on the Sabbath day. The boat sunk with the metal. This action is brought to recover damages for the injury to the boat, and expense, &c., of reshipping the metal. Redbank Creek, “ from its mouth up to the second great fork,” which includes the site of this dam, was declared a public highway by the Act of 21st March, 1798.</p> <p>The defendant relied upon the Act of the 23d March, 1803, as justifying the erection of the dam; and that the plaintiffs, being engaged in a violation of the Act of 22d April, 1794, forbidding worldly employment on Sunday, were not entitled to recover.</p> <p>The court below (Burrell, P. J.) charged the jury as follows:—</p> <p>“ The plaintiffs sue to recover damages for injuries received by their boat in passing down over defendant’s dam, in Redbank Creek. This stream is declared a. highway by the Act of 21st March, 1798. Afterwards, in order to encourage the erection of mills, much needed in the newer settlements, the Act of 1803 was passed, permitting owners of adjoining lands to construct dams in certain streams which had been declared highways, “provided they shall not obstruct or impede the navigation in such streams, &c.” The defendant then had a right to construct his dam in this stream, keeping within the proviso in the statute. It is scarcely necessary to say, indeed it is not seriously disputed, that this dam, such as it is shown to be, is an obstruction to the navigation. Taking this for true, it is still for the plaintiffs to show that the injury to their boat was caused by the dam, and while they were exercising ordinary care and shill in its navigation. If they have shown this, they would be entitled to recover damages, unless there be some other ground upon which they are defeated.</p> <p>“ It is alleged by defendant, and not disputed by plaintiffs, that the alleged injury occurred on Sunday; that they started to run out their boat on the morning of that same day, and arrived at the dam about noon, and that they were then in the pursuit of their worldly employment and business. The question raised is, can they recover at all under these circumstances?</p> <p>“ Christianity is said to be part of the common law of Pennsylvania, and the observance of the Sabbath one of its requirements. It is however true, that so long as it remained only a moral or religious duty, there was no civil penalty for its breach. But in 1794, the non-observance of the Sabbath by following worldly employment was prohibited by the legislature, and a punishment by fine annexed to the act. The plaintiffs’ counsel do not pretend that they are within the exception in the statute in favour of “work of necessity and charity.” The act of the plaintiffs, in starting and running their boat on Sunday, was unlawful — and as much one of the mala prohibita as any act made punishable by statute only. It is then while they are in the actual commission and doing of this forbidden thing that they are injured by an obstruction in the stream. The injury is incident to their conduct, and is one which eould not have happened when it did if they had not been running their boat at that time. It is true the same thing might have happened to them the day before or the day after — and it might not — the argument is not to be either strengthened or weakened by the suggestion of possibilities. So whether the dam was or was not a nuisance before and after that particular Sunday, is not important, as the whole difficulty comes from the fact that the alleged injury occurred on that day.</p> <p>“ The liability of the owner of the dam does not arise merely because his dam is too high for boats to pass safely, but it is predicated upon the right of the party injured to use and enjoy the stream as a highway, for the purposes and in - the manner in which he was using it when injured. If the stream were not a highway at all, or not a highway for a particular boat, we apprehend the basis of the right to recover for injury to that boat wmuld not exist. If the legislature had forbidden the navigation of Red-bank by metal boats, the stream would not be a highway for such boats. If the navigation there was forbidden during a particular month, there would be no right of highway during that month. The argument is that the prohibition of all worldly business on Sunday necessarily includes a prohibition of the use of highways by those whose pursuits are there carried on. The plaintiffs’ worldly employment was boating metal on a public highway ; the use of the highway was the means by which, and the highway itself the place where their business was transacted. Now if they are forbidden by law to transact their business at all during a particular month or a particular day, it follows that the means and appliances of their avocation are included in the prohibition during that month or day.. If the use and occupation of the highway be forbidden them, the stream ceases to be a highway as to them for the time being. It is conceded the right of highway exists on Sunday where not taken away, and so if a mere traveller in his skiff had passed over this dam on Sunday, and sustained injury in the passage, he would have a right to recover, because he is not forbidden by the statute to travel, and therefore his right of highway continues on Sunday. By the Act of 1803, the legislature provided for the supply of fish in the highway streams, but by the Act of 1794, fishing in them on Sunday is prohibited. Now a fishing party would have as much right to sport in this stream as the plaintiffs had to follow their business upon it on the Sabbath, and if the sportsmen should lose their boat upon a dam, would they not have the same right to recover damages ? . They are all governed by the same law, and if one is to be protected from the accidents he may encounter whilst acting in violation of it, there seems no reason why the other should not be protected also.</p> <p>“ The point then is — had the plaintiffs a legal right of highway in Redbank on Sunday ? We have seen that their use of the highway for carrying on their worldly business was forbidden, and was therefore unlawful. It seems plain they could not have a legal right to do an illegal thing, — and if they had not, their right of highway, the basis of their right to recover for injury sustained from a nuisance in the highway, is wanting in the case.</p> <p>“The defendant’s counsel have urged the analogy which exists between this case and that of Sunday contracts. The analogy is denied — let us examine it. Since the Act of 1794, contracts made on Sunday have been held entirely void. It was once decided at Philadelphia that they were void at common law. But the Supreme Court in Kepner v. Keifer, 6 Watts 231, exploded this idea. Now, as some suppose, are they held void inasmuch as both parties to them acted wrong and immorally in bargaining on the Sabbath, and for this reason neither is permitted to recover by way of punishment. But we find that in fact the question is always raised by one of the parties who desires to escape from the contract. He is rewarded for his immoral act by a decision against the validity of the contract, while the other party, who loses its benefits, is the only one punished. The true ground is clearly enunciated by Judge Kennedy in Kepner v. Keifer— “that the execution of the contract on the Lord’s day, came within the prohibition of the Act of 1794, and was therefore void.” The true doctrine then is that the Sunday contract is void, because it is an act of worldly business, and the parties are held to have no legal rights or remedies arising out of a transaction done at the forbidden time. And herein lies the analogy. If the party seeking to enforce his Sunday contract is turned out of court without remedy, and upon these grounds, upon what principle can the plaintiffs demand to have all their rights and remedies preserved in relation to matters arising from their violation of the Act of 1794?</p> <p>“We are of opinion that the plaintiffs had no legal right of highway in itedbank Creek for the pursuit of their worldly business on the Sabbath day — that he who has no right of highway at the time he sustains injury from a dam in that stream, has no remedy to recover damages in a civil action from the owner of it — and further that the plaintiffs, at the time of the alleged injury, were acting in violation of the Act of 1794, the injury being incident to and concordant with their unlawful act — and that therefore the law withholds all remedy from them. They cannot for these reasons, in our opinion, recover in this suit. This conclusion we think follows both reason and analogy, and is in furtherance of the well defined policy of our law, illustrated by recent decisions of our highest courts — which is to preserve the Sabbath day from the desecration of worldly business and employment.</p> <p>“ To which opinion of the court, the counsel for the plaintiffs did then and there except and pray the court to seal a bill of exceptions, which is done.”</p> <p>The jury found for the defendant.</p> <p>The charge of the court below was assigned here for error.</p>

<p>The Act of Assembly of 9th April, 1849, exempting §300 from levy and sale, does not operate in favour of defendants subject to be sued by foreign attachment.</p> <p>Qucere, Whether the wife, in the absence, and without the express authority of her husband, can make a valid demand of exemption of property from levy and sale under Act of 9th April, 1849.</p> <p>Among attaching creditors, when process is served the same day, there is no preference, and all must be paid pro rata.</p>

<p>This was a bill in. equity filed by the Mayor, &e., of the City of Allegheny against the Ohio and Pennsylvania Railroad Company, praying for an injunction to restrain the company from using certain grounds in the said city, called the “South Common,” in the manner they were then doing. The bill set forth in substance, that pursuant to the provisions of an Act of Assembly, passed the 11th of September, 1787, a town was laid out opposite “Fort Pitt,” and adjoining it. One hundred acres were reserved as a common pasture. That the lots were sold, and the owners became entitled to the right of common upon this reservation: and that by the 20th section of the Act of the 13th of April, 1840,. the right of the Commonwealth to all the lands in the City of Allegheny, except such as had been appropriated by grant and by authority of law, became vested in the said city, for such public uses as were recited in the Act of 1787, and such other public uses as the Select and Common Councils might from time to time enact and ordain; with a proviso that no part of the common shall be applied to any other purpose without releases -first had from such persons as might by law grant a right to the whole or any part of said common.</p> <p>That the defendants being a corporation created by Acts of Assembly of the states of Ohio and Pennsylvania, and wrongfully intending to appropriate the common to their use, located their railroad over, through, and upon this- common, passing along the south side of it to Federal street. And that the defendants pretend that on the 15th day of August, 1850, a resolution was passed by the councils of the City of Allegheny to the effect following:</p> <p>“Resolved, by the Select and Common Councils, that as far as the title of the city extends, the right of way fifty feet wide through the common of the city to Federal street, along the south side of the South Common, as the same had been located by the said company, shall be granted to said company free of charge:” whereas no such resolution had been passed, and if it were passed by the councils, that the releases required by law had not been obtained.</p> <p>And that the corporation, under colour of such pretended resolution, had entered upon the common and laid down and constructed three railroad tracks upon it, and appropriated to their use a space more than fifty feet wide along the south side of the common to Federal street, and have continued to disturb and destroy the peaceable and quiet use of it, and have appropriated the same to their use for their railroad, cars, engines, locomotives, horses, carriages, wagons, &c., for carrying on their traffic and business. And intend and threaten to erect upon it buildings for car-houses, depots, and other structures.</p> <p>The bill further charged the erection of a stone wall and platform on the common, and alleged' that it was destructive of the use of the common, and that it was used by the company for the receipt and delivery of freight and passengers, and greatly diminished the value of the lots in the city fronting upon the common,- and that it will be a great and irremediable nuisance.</p> <p>And the bill further charged that the company kept their freight and passenger cars standing upon the common day and night, and receive and discharge freight there and use it as a place of receipt and deposit; and that the great noise, steam, and smoke of their locomotives and trains, and the collection of wagons, horses, and carts and other vehicles, and by the receipt and discharge of horses, cattle, sheep, freight, and passengers, in and upon the common, they deprive the lotholders of the peaceable and quiet use of the common and of their own habitations.</p> <p>'The complainants deny the power and authority of the company under the resolution of the councils to use the common in the manner charged in the bill, and that the powers therein conferred have been fraudulently exceeded by the company, and that the said acts are contrary to equity and good conscience, and tend to the manifest wrong, nuisance, and irremediable injury of complainants, for which they have no adequate remedy at law, and concludes by a prayer for an injunction and for general relief.</p> <p>The respondents in their answer alleged that they were authorized under the resolution of the Select and Common Councils of the City of Allegheny to occupy and use the said common with their road in the manner they had heretofore done. That the construction and occupancy of the road was with the knowledge and acquiescence of the city, and that the pasture on the common, which it was alleged was interfered with and destroyed, was of no practical or appreciable value.</p> <p>The erection of the platform, as charged in the bill, was admitted, but it was denied that it in any way interfered with the use of the common by those who had the right of pasturage. They further admitted, that they kept their cars, engines, &c., standing upon the track or tracks of their road, over and on the common, for the purpose of receiving and discharging freight and passengers, and claimed a right to do so, but denied the use of the ground of the common outside of their track or road as a depository for freight, &c., and allege that they are not in any manner responsible for the use which may be made of it by others who resort to their road, for the purpose of leaving or carrying away freight or passengers.</p> <p>The answer further admitted that the company intended to extend their road from its present terminus to the city of Pittsburgh, as they are authorized to do by their charter, and alleged their right to appropriate so much of the common as shall be found necessary for the lawful purposes of the road, making compensation to the owner or owners of the same, or to the holders of the rights or easements in the common.</p> <p>They further alleged that the councils of the City of Allegheny had full power and authority to make the grant, as contained in the resolutions of those bodies, and that, under said authority, and the power contained in their charter of incorporation, the company was fully authorized to do and perform all the acts and things complained of. And also, that after the expenditure of large sums of money by the company in pursuance of the action of the councils, the city was estopped in equity from questioning the title of the respondents, or in any way interfering with their enjoyment of the rights thereby conferred. They therefore prayed that the bill might be dismissed, &c.</p> <p>To the foregoing answer the complainants filed a general replication.</p> <p>Upon application, a commissioner was appointed by the court, before whom the testimony was taken, and which, so far as material to the cause, is stated in the opinion of his Honour, the Chief Justice.</p>

<p>In parol sales of land, it is the duty of the courts, in the application of the practice and principles of equity, to reject all the evidence of a verbal contract ; if, being taken together, it fails to make out such a case as isentitled to stand as an exception to the statute of frauds and perjuries.</p> <p>The use and possession of the real estate of a father, by a child, is to be interpreted by the law of evidence that arises from the family relation, and ab between such persons, are to receive a different construction from similar acts between strangers.</p> <p>As between such persons, the evidence of a gift or sale must be direct, positive, express, and unambiguous, and its terms must be clearly defined, and all the acts necessary to its validity must have special reference to it and nothing else.</p> <p>Where P. agreed with his son-in-law, K., that the latter should go into possession of a farm belonging to P.,. and give him one-third of the grain raised upon the same, and at the death of P., K. should have the farm, and K. went into possession in pursuance of the agreement, and made permanent improvements, and P. afterwards brought ejectment against K.,</p> <p>It was Held, That these facts did not constitute such a parol sale as would take the ease out of the statute, the presumption of law being, that the father was putting into experimental operation, for the benefit of his child, an arrangement which he expected to confirm at his death.</p>

<p>Where a son olaimed land, the legal title to whioh was in his father, by a parol gift, and also under a resulting trust, arising from the alleged payment of the purchase-money, such claims are repugnant to, and inconsistent with each other.</p> <p>Equity will not lend its aid to experiments on legal titles, in favour of one who can present no distinct and consistent claim.</p> <p>In such case, the claimant must elect whether he will rely on the gift or trust, and having done so, all other evidence, exoept of the principal fact, should be excluded until that shall sufficiently appear by testimony going directly to the fact.</p> <p>Possession by a son, taxation in his name, and his ability to pay for the land, are not evidence of a parol sale, gift, or trust, as they are not inconsistent with his use of the land and his father’s title.</p> <p>The making of permanent improvements by the son on the land, does not tend to prove the principal fact directly; and where the improvements are merely such as are essential to the use of the land, they have but little weight as corroborative evidence.</p> <p>Where the son is aided by the father and his family in making the improvements, it indicates the family character of the arrangements, and excludes them from the supervision of the law, however unjustly the father may have seemed to act, in reference to the matter.</p> <p>1 The executive minutes are not evidence that a pardon was granted. The pardon itself, or a certified copy, must be produced.</p> <p>See Spalding v. Saxton, 6 Watts 338.</p>

<p>Error to the Common Pleas'of Lancaster county.</p> <p>This was an action of assumpsit, in which Michael Schnader claimed to recover from William' Schnader on a quantum meruit, for the carpenter work of a house.</p> <p>In 1852, Michael Schnader entered into a contract with William Schnader, to do for him the carpenter work of a house, which the latter was building, for the sum of $80, payable half in cash and the balance in lime. In 1853, after the work was finished, the parties met and attempted to settle; including the lime, the plaintiff had received on the work the sum of $79.90, but claimed allowance for extra work. The defendant offered him 10 cents, the balance of the contract price, and $3.50 for extra work, which the plaintiff declined receiving. The defendant afterwards tendered $5 more, making in all $8.60.</p> <p>After Michael Schnader made the contract with the defendant, he took Emanuel Bear in with him, and they did the work together. About the time it was finished, Bear went out, and Michael Schnader paid him for his work by the day. Bear’s deposition was taken, and before being sworn and examined in chief, he was at the instance of the defendant sworn upon his voir dire, as to his interest.</p> <p>On the trial, the plaintiff offered this deposition, and the defendant called witnesses to prove that Bear had been a partner in the work, and the deposition was rejected. The plaintiff offered his book of original entries made í>j himself of the work done, and upon his examination stated: “ This is my day book; I made the entries right down. I put the charges down every Saturday night; did not put it down every day; had it not put down every day; kept it in my head.” The book was objected to, but admitted by the court, and an exception taken by defendant.</p> <p>After the defendant had proved the special contract, and what had occurred at the attempted settlement, the plaintiff again offered the deposition of Emanuel Bear, to contradict the witnesses of defendant, and it was admitted under objection by defendant’s counsel.</p> <p>The principal matter of controversy was, whether there was a special contract at a specified price, and whether there had been extra work done by the direction and request of the defendant. Which matters the court below (Long, P. J.) referred to the jury.</p> <p>The defendant requested the court to charge the jury: — “ 1. If the jury believe that Michael Sehnader and Emanuel Bear were partners in doing this work, the plaintiff cannot recover.</p> <p>“ 2. If, during the progress of the work, and up to the time of its cpmpletion, Michael Schnader and Emanuel Bear were partners in the job, this suit cannot be sustained, even if afterwards they dissolved and Bear sold his interest to Sehnader.”</p> <p>Answers to defendant’s points: — ■“ 1. If the jury believe that Michael Schnader and Emanuel Bear were partners at the time the contract was made, and the contract was made with the plaintiff, Michael Schnader, as one of these partners, the plaintiff cannot recover in this suit.</p> <p>“ 2. If the contract was made with Michael Schnader individually, before he entered into partnership with Emanuel Bear, if such partnership should have been proven to your satisfaction, and such partnership was dissolved, and Bear sold his interest before this suit was brought, then this suit can be maintained. But if such partnership existed at the time the contract was made, this suit cannot be supported. These are facts for your decision.”</p> <p>The jury found for the plaintiff, ¡§30.</p> <p>The errors assigned were the admission of the plaintiff’s book, and the deposition of Bear, and the answer to defendant’s 2d point.</p>

<p>Error to the Common Pleas of Adams county.</p> <p>This was an action of debt, in the name of the Commonwealth of Pennsylvania, for the use of R. Gr. McCreai-y, trustee of Isaac E. Pearson, and Lavina Maria, his wife, against Samuel S. McNair, on a recognisance in the Orphans’ Court of Adams county.</p> <p>The defendant, Samuel S. McNair, took certain real estate belonging to his deceased father, at the valuation in the Orphans’ Court, and entered into recognisance on the 28th April, 1834, to pay to Isaac E. Pearson, and Lavina Maria Pearson, the sum of $65.16, in one year, and the further sum of $32.58, at the death of Lavina McNair, the widow of the intestate. These two sums Constituted the interest of Mrs. Pearson in the real estate of her father. The widow died on the 30th November, 1842. Pearson and wife assigned the recognisance to McCreary, in trust for themselves.</p> <p>On the trial in the court below, the defendant produced the following release:—</p> <p>June 30,1835.</p> <p>Received of Samuel S. McNair, Eighty Dollars, in full of all claim and demand, for the interest of Maria Pearson, late Maria McNair, in and to the farm of which her father, Samuel McNair, deceased, died seised and intestate, and which Samuel S. McNair has taken at the valuation thereof; and in consideration of the above payment, we do for ourselves, our heirs and assigns, release and for ever quit claim the said Sqmuel S. McNair from the payment of our proportion of any dower that may be reserved in said farm.</p> <p>Isaac E. Pearson, [Seal.'</p> <p>Maria Pearson, [Seal.'</p> <p>The handwriting of Pearson to the release was then proved by a witness, and Jacob Myers called, whose testimony was as follows :—</p> <p>“ I was an acting magistrate in Freedom township. I have seen both Pearson and his wife write — him frequently, and her never but once: it was the time the deed was acknowledged.</p> <p>“ They signed this deed in my presence. I saw them sign it. I believe this to be J. E. Pearson’s handwriting (to the release). I have seen Mrs. Pearson write. She wrote her name to the deed. I have no recollection independent of the deed — independent of the comparison. I have no recollection independent of the deed. If' I had not the deed before me, I would not undertake to say anything about her handwriting. From having seen her write her name, I believe this is her handwriting. I know she wrote it to the deed, and, therefore, upon comparing it, I think it is hers. I cannot speak from recollection without comparing it.”</p> <p>The release being offered as the receipt of both parties, was objected to by the plaintiffs and rejected by the court, for want of proof of Mrs. Pearson’s handwriting.</p> <p>It was again offered in connexion with the deed and the testimony of Jacob Myers, and again rejected by the court.</p> <p>It was offered a third time for the purpose of establishing the receipt or release of the husband alone, and as a credit pro tanto for the amount paid, and objected to by plaintiff; but admitted by the court to discharge such interest as may be due, but not as payment of any part of the principal.</p> <p>The wife had never made the declaration required by the Act of 29th March, 1832, section 48, nor had the husband given security as required by the same section of the said act.</p> <p>The court below (Fisher, P. J.) charged the jury, in substance, that the only effect of the payment of the $80 to the husband, on the 30th June, 1835, would be that it would go to the liquidation of the interest accruing on the recognisance, to which the husband was entitled during life, but that from the principal of the fund there could be no deduction.</p> <p>The jury found for the plaintiffs $97.74, being the amount of the principal.</p> <p>The defendant sued out this writ, and assigned for error the rejection of the release as above stated, and the charge of the court, for error.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>Reah Frazer, Esq., obtained in the Common Pleas of Lancaster "county, on the 29th January, 1855, a judgment on verdict against B. E. McMurtrie for $435.18. On this judgment a testatum fi. fa. was issued to Huntingdon county, and levied on the real estate of the defendant, and inquisition held, and the property extended at the yearly rental of $90. Notice having been given by the plaintiff of his election to permit the defendant to retain the premises at the valuation, he, on the 4th day of May, by writing filed, agreed to retain the same at the rental fixed by the inquest. A return of these several proceedings was made to the Common Pleas of Lancaster county. On the 3d of December, 1855, the defendant paid to Joshua Greenland, Esq., sheriff of Huntingdon county, $45.22, the first semi-annual payment of the rental. The plaintiff resided in Lancaster county, and had no agent or attorney in Huntingdon county. On the 5th December, 1855, the plaintiff issued a venditioni to sell the premises. A motion was made to set aside this writ, and a rule granted for that purpose, which the Common Pleas of Lancaster county afterwards discharged. The defendant thereupon sued out the writ of error.</p> <p>The only question raised was, whether the payment to the sheriff of Huntingdon county, the plaintiff not residing there, and having no agent or attorney in that county to receive the payments, was available to prevent the issuing of a vend. exp. and a sale of the premises.</p>

<p>Error to the Common Pleas of Blair county.</p> <p>This was an action of assumpsit brought by Thomas Wilson against Matthew C. Wilson, to recover certain money which the defendant, who resides in Blair county, Pa., had received for the plaintiff, a resident of North Carolina. While the money was in the hands of the defendant the plaintiff wrote him the following letter, dated 2d May, 1851:—</p> <p>“ There is a matter I have insisted to know and which is due to every one of the heirs and it is this sir, the amount of all dues against and in favour of the estate in bonds notes book or proven accounts, that each one may see the amount of money due them, as to the balance of mine I don’t say 1 must have it but that I would like to have at least $250 as soon as you can send it, or $300 would not come amiss. You can send inclosed in a letter in $50’s or $100 notes on par banks, direct your letters to Cedar Grove as heretofore and the receipt I will send as soon as the money is received by me, for whatever amount you send me. Only be careful and send it carefully folded up and sealed.”</p> <p>' The defendant, on the 24th May, 1851, purchased $300, chiefly in bills of North Carolina banks, in all, eighteen bills, of the denomination of $5, $10, and $20, and one of $100, and enclosed the same in a letter carefully folded and sealed in an envelope, and directed to the plaintiff at Cedar Grove, Orange County, N. C. This letter was mailed and forwarded, but never reached its destination.</p> <p>This action was brought to recover the amount, on the ground that the defendant had assumed the risk of the remittance by enclosing a larger number of bills, and of smaller denominations, than directed in plaintiff’s letter.</p> <p>The defendant contended that the instructions were substantially complied with, and that the-departure, if any, was not material, and did not increase the risk.</p> <p>Witnesses were called on both sides, whose opinions differed as to the relative risks of large or small packages of money sent by mail.</p> <p>The court below (Taylor, P. J.) instructed the jury as follows:</p> <p>“ The remittance was at the risk of the plaintiff, and a payment of the claim, if it was made in conformity, substantially, with the plaintiff’s instructions. The directions were substantially complied with and pursued, if there appears to have been no departure which materially increased the risk of remittance; while on the other hand if there was such a departure, there was not a substantial compliance, and the risk and loss would fall upon the defendant. Of this you will judge from the evidence.</p> <p>“ The evidence reviewed, and the cause submitted upon the question as above stated.”</p> <p>The jury found for the defendant.</p> <p>Whereupon the plaintiff removed the cause to this court, and assigned the charge for error.</p>

<p>Error to the Common Pleas of Blair county.</p> <p>This was an action by Joseph Smith against David Watson and William McFarland, as sureties on the official bond of George W. Johnston, as prothonotary of Blair county. The parties agreed upon the following case stated</p> <p>Joseph Smith, the plaintiff above named, was prothonotary and clerk of the several courts of Blair county, and held said offices from the first day of December, one thousand eight hundred and forty-six-, until the first day of December, one thousand eight hundred and forty-nine, when George W. Johnston having been duly elected, entered upon the duties of said offices, and held the same until the first day of December, one thousand eight hundred and fifty-two. And during the term of his office, he, the said George W. Johnston, while discharging the duties of prothonotary, received from suitors at the prothonotary’s office of said county, the sum of $159.17 of costs belonging and due to the said Joseph Smith, his predecessor in office, which were taxed on the dockets of said office and paid to the said George W. Johnston at different times and in small sums as per statement of the same hereto annexed, which, with the records of the cases therein mentioned or referred to, are made part of this case stated. The said George W. Johnston retained the said moneys so by him received, and has never paid the same or any part thereof to Joseph Smith, and has since died insolvent. The defendants are the sureties in the official bond of the said George W. Johnston, and in order to avoid a suit on the bond aforesaid, have requested the plaintiff to have a determination of his claim in this form.</p> <p>If the court should be of opinion that the defendants would be liable for the said money, or any part thereof, so paid to the said George W. Johnston, then judgment to be entered for the plaintiff for such sum, with interest from the first day of December, A. D. 1852; but if the court should be of the opinion that they would not ,be so liable, then judgment to be entered for defendants, costs to follow the judgment, and either party reserves the right to sue out a writ of error therein.</p> <p>The court below (Taylor, P. J.) gave judgment for the plaintiff, upon the case stated, for the sum of $184.40.</p> <p>The defendant sued out this writ, and assigned for error, that the court should have entered judgment for the defendant below.</p>

<p>Husband and wife being regarded in law as one person, are, during coverture, incapable of taking separate estates under a conveyance in lands, either as joint tenants or tenants in common.</p> <p>Under a conveyance to them in fee “as tenants in common and not as joint tenants,” both become seised of the entirety, and, on the death of either, the whole estate goes to the survivor, irrespective of the intention of the parties to the conveyance.</p> <p>Qucere, What would be the effect of such a conveyance since the Act of 11th March, 1848?</p>

<p>An assignee for the benefit of creditors, although not a party to the record, may appeal from the judgment of a justice of the peace against a garnishee, on an attachment execution issued against the assignor.</p>

<p>Error, to the Common Pleas of Berks county.</p> <p>This was issue devisavit vel- non, in which the executors of Peter Hoshauer, deceased, were plaintiffs, and Peter Hoshauer and others, defendants. Peter Hoshauer, on the 15th day of October, 1858, executed the writing which the plaintiffs alleged was his last will and testament. On the trial in the court below, the plaintiffs called the subscribing witnesses and proved by them the execution of the paper by the testator, and their attestation of it as witnesses in his presence and by his request, and that he was of sound mind at the time of so doing. On cross-examination, they said the will was not read over to him or explained at the time of signing; that it had been prepared previously, and they were called only to witness, and were not present at its preparation. The will was written in English.</p> <p>The' defendant proved that Peter Hoshauer, the testator, could neither read nor write, nor understand the English language. That he was 84 years old when he died, on the 23d September, 1855; and then offered to prove that on the 19th September, 1855, he declared to the witness, “that he had made a will; that he had made it as John wanted it; that he had to make it as John wanted it; that he knew it was wrong.” The plaintiffs objected to this evidence, and the court rejected it, and signed a bill of exceptions at the instance of defendants.</p> <p>There being no further evidence offered, the court below (Jones, P. J.) instructed the jury,</p> <p>“ There seems to be nothing in the way of a recovery by the plaintiffs, and the verdict will be so taken.”</p> <p>The charge of the court, and the admission and rejection of the evidence as above stated, were the errors assigned.</p>

<p>The owner of the upper or superior heritage, may improve his lands by agricultural or mining operations, although thereby the volume of water discharged upon the inferior is increased, but he cannot make or dig new channels.</p> <p>But if in doing so, he causes a greater amount of water to pass on to the: lower premises, than the natural condition of the places would occasion, the owner of the latter may lawfully erect on his own premises, a countervailing impediment to such excess ; provided it doijnot intercept the passage of the water which would naturally pass on to his land.</p> <p>In favour of the agricultural and mining operations of the country, where necessary, the natural volume of the water may be increased, but new channels cannot be made for its passage.</p> <p>It is not error for the court to omit to charge upon every possible aspect of the facts, when not requested to do so by the party complaining.</p>

<p>Error, to tbe Common Pleas of Lancaster eounty.</p> <p>This was an ejectment brought by Henry Lineweaver against Thomas Crawford to recover 8 acres and 124 perches of land in Rapho township, Lancaster county.</p> <p>The plaintiff claimed under a warrant to himself, dated 1st May, 1850, and surveyed the 16th of August of the same year, and returned to the land office, where upon a caveat filed, the board of property refused to accept the survey and order a patent to issue thereon.</p> <p>The defendant claimed the land by settlement, and showed that in 1815 he entered and commenced an improvement on a piece of land, containing, according to a survey made in 1827, 124 acres 24 perches, and that he has continued to reside on it. ever since, and to use and cultivate it as a farm.</p> <p>• The plaintiff showed an application entered by Michael Pitner, dated 28th August, 1765, No. 649, for 180 acres in Rapho township, and a survey under that application, dated 80th September, 1765, of 104 acres and allowance, which was returned into the .land office and accepted 1st June, 1768. This survey embraced all the land covered by the defendant’s actual improvements and buildings. The land in dispute was within the lines of the defendant’s survey made in 1827, and was also enclosed in his fences at an early period of his settlement.</p> <p>The plaintiff contended that as the land upon which the defendant’s residence' and cultivation were, had been appropriated by application and survey of Pitner, it was not subject to appropriation by an actual settler, and therefore he could not obtain title to the part in dispute, which was admitted to have been unappropriated land at the time the defendant entered.</p> <p>The defendant contended that the long period intervening between the application and survey of Pitner, without any steps to perfect the title, and without having taken possession, paid taxes, or exercised any acts of ownership over it, was an abandonment of the application and survey, and rendered the land subject to appropriation by warrant and survey, or settlement.</p> <p>The court below (Hates, J., presiding) charged the jury as follows:—</p> <p>“ The whole question in this case turns on the fact of abandonment of the application and survey made in the name of Michael Bitner or Pitner, in 1765, and returned to the office in 1768.</p> <p>“ The application was made eighty-eight years before this suit was brought; the survey.was made the same year with the application, and for eighty-five years anterior to the suit nothing is known of Michael Bitner or Pitner in connexion with the premises.</p> <p>“He is not proved ever to have set his foot on the land included in his survey, or to have made any claim to it whatever. When this settlement and improvement were commenced, which was some thrty-five years ago, as it is. said, fifty years had elapsed since the last transaction in relation to Bitner’s survey, and from that time nothing is known or heard of Michael Bitner or of any claim by him of these premises. Had no return of the survey been made into the office, it is not pretended that his title would have stood in the defendant’s way. But that return, it is argued, had so fixed his title that under no circumstances could the land ever again become vacant. I do not conceive the law to be so: in my opinion, a title may be abandoned :after a survey and return thereof into the office as this was returned; and if the fact be, that for fifty years before Thomas Crawford commenced his settlement and improvement of this land, Michael Pitner did not occupy or claim, or in any way interfere with the same, I think the court are bound to instruct you that he is to be presumed to have abandoned it, and that it reverted to the Commonwealth. In that case it was to be deemed vacant, and being so, gave to the settlement and improvement of Thomas Crawford the same effect as if there never had been an application for or survey made of the same. One effect was to extend his claim over the 10 acres in question, giving him a better title thereto than the plaintiff, Henry Line-weaver, under his warrant and survey of 1850. This would preclude his recovery in this action, and warrant the jury in finding a verdict for the defendant.”</p>

<p>The appraisement of the estate of a decedent, directed by the register of wills under the collateral inheritance tax laws, is conclusive only of the value of the estate, but not of its liability to taxation.</p> <p>Where the estate is not subject to a collateral inheritance tax, the entire appraisement proceedings are a nullity!</p> <p>The case of Christ Church Hospital v. Philadelphia county, 12 Sams 229, affirmed.</p> <p>If a grantor executes a deed and retains it in his possession, and the grantee requests its delivery by a third person, and the grantor gives the deed to such third person, to be handed over to the grantee, when he calls for the same, it is in law a delivery of the deed, though it was not handed over to the grantee, and was found among the grantor’s papers after his death by his executors.</p> <p>The premises conveyed in the deed were not liable to a collateral inheritance tax as the estate of a previous equitable owner, for whom the grantor held the legal title, and who died subsequent to such delivery of the deed, although he devised the same premises in his will to the grantee.</p>

<p>The appraisement of the estate of a decedent, directed by the Register, under the collateral inheritance laws, unappealed from, is conclusive only as to the value of the estate; but not of liability to taxation.</p> <p>A debt released by a will, which was previously barred by the statute of limitation, passes nothing; and the amount of such debt is not liable to be assessed with a collateral inheritance tax.</p> <p>The appraisement under the collateral inheritance laws, and the proceedings upon it, must be in the county where the letters testamentary or of administration were issued.</p>

<p>Error to the Common Pleas of Juniata county.</p> <p>This was an action of ejectment brought by Reuben C. Hale, Esq., against William Miller, to recover a tract of land containing 403 acres and 27 perches, surveyed on the 3d June, 1794, on a warrant to Philip Darr, dated 10th August, 1794.</p> <p>The plaintiff claimed under a treasurer’s sale to himself, made on the 11th June, 1838, for taxes assessed upon the land before Juniata was set off from Mifflin county.</p> <p>The defendant claimed under a treasurer’s sale in Juniata county, made on the same day to Charles Singmaster for taxes assessed in Juniata county.</p> <p>On the trial in the court below, the plaintiff offered the assessment-book from Mifflin county, which was admitted to be a book from the commissioners’ office of that county. It was objected, that the book is not evidence, it must be a certified copy; and that it did not show any assessment by the commissioners of that county. The objections were overruled, and the evidence admitted. The assessment was of 403 acres and 137 perches of land in “ Fermanagh township” in the name of Philip Darr.</p> <p>The plaintiff also offered the treasurer’s deed to himself, dated the 11th June, 1838, for 403 acres and 137 perches in Derry township, surveyed (as stated by the court in the bill of exceptions) in the name of William Darr.</p> <p>■ To this if was objected, that it was not for the same land, and not in same township.</p> <p>' The court overruled the objection, and admitted the deed in evidence. :</p> <p>The plaintiff also proved; that there was no tract of land in the township of “Derry,” in the name of Philip Darr, but that the land lay in Fermanagh.</p> <p>The defendant then offered the assessment of unseated land ip Juniata county, in which Philip Darr’s 403 acres and 107 perches in Fermanagh township, was assessed with a tax of $2.13. ;</p> <p>The clerk of the commissioners was examined, and proved that prior to the sale in 1838, the deputy surveyor of the county madé a return to the commissioners of the unseated lands within the .county, and that two or three months before the sale, the taxes were charged by the commissioners, and aggregated, including the taxes from 1831 to 1837, and this list was given to the printers. And that no previous assessments had been made.</p> <p>The assessment, sale, and deed were objected to by plaintiff, because the taxes were not assessed one year previous to the sale.</p> <p>They were admitted, and the question arising reserved by the .court.</p> <p>The court below (Graham, P. J.) charged the jury as follows</p> <p>“ The plaintiff claims title to the land in dispute by virtue of a sale by the treasurer of Mifflin county, for taxes due and unpaid from 1822 up to 1830. An assessment of taxes is shown for the years 1822, 3, 4, and 5, and a deed by the treasurer to the plaintiff, dated Í2th June, 1838, reciting a sale made to him on the 2d Monday of June, 1838.</p> <p>“ The plaintiff has shown a warrant to Philip Darr, and survey thereon of 403 acres in Fermanagh township, Mifflin county, in 1793 and 4, and the assessment corresponds with the name of the warrantee and survey on his warrant. But the treasurer’s deed recites the land as being in Derry township, and this the defendant alleges is a fatal defect in plaintiff’s title and will defeat his recovery. We don’t think so, if you are satisfied it is the same land, and that there is no land in Derry township warranteed in the name of Philip Darr. The evidence of Major Hough as to the identity of the land appears to us satisfactory. He has been deputy surveyor of Mifflin county for a number of years, and says there is not a tract of 400 acres of unseated land in Derry township, that he has not run the lines of, in whole or part, and that he never heard of a tract in that township warranted in the name of Philip Darr, but there is a tract corresponding with the assessment in Fermanagh township, formerly iñ .Mifflin county and now in Juniata county.</p> <p>“ Should you be satisfied of the identity of the land, the plaintiff’s title is an available one unless the defendant has shown a better one.</p> <p>“ The defendant claims title to the land in dispute by virtue of a treasurer’s sale of the same land in Juniata county on the same day, and a treasurer’s deed in pursuance of said sale for taxes assessed from 1832 to 1837. Juniata, formerly a part of Mifflin county, was organized as a county in Í831. An assessment book of the unseated lands in the county has been given in evidence showing an assessment of taxes on this land from 1832 to 1837, and Mr. Christy, who was then, and has been clerk and counsel to the county commissioners for a number of years, proves that this book is the only assessment of unseated lands in the county. He says that the mode in which the assessments were made was this. Previous to the sale the county surveyor returned to the commissioners a list of unseated land in the county, and two or three months before the sale in June, 1838, which was the first sale in the county, the list was copied into this book, the land valued at 25 cents per acre, and the mill rate estimated on the valuation. That the taxes for the number of years unpaid were aggregated and charged in one sum, and no separate tax for each year charged. The plaintiff contends that this mode of assessment cannot authorize a sale by the treasurer within two or three months after the assessment was made — and that no assessment having been made one year previous to the sale, the title of defendant is invalid and cannot defeat plaintiff’s recovery.</p> <p>“ The Act of Assembly requires that the taxes shall be due and unpaid for one year previous to the sale. It evidently intends that the owner shall have one year to pay his taxes before he can be subjected to the expense of redeeming his land after a tax sale. He must be in default for one year. But how can he be in default in the payment of a tax which has not been assessed, and the amount of which is nowhere to be ascertained? The owner of the land might search in vain for the amount of the tax, and it would be impracticable to pay a tax which never had been assessed, and the amount of which it would be impossible for the commissioners to ascertain, from any papers in their office. The land must be returned and a value put upon it before the tax can be ascertained. If there was any evidence to show that the land had been returned and a value put upon it, one year prior to the sale, from which the tax could be ascertained by calculation by reference to the mill rate for state and county purposes on unseated lands, during the years for which the taxes had been paid on the unseated lands, we would sustain the assessment and sale. But it cannot be said that a tax was due and unpaid for one year, where there was no data from which the amount to be paid could be ascertained until within three months of the sale. The defendant’s title having failed by reason of there being no such assessment as would authorize a sale at the time it was made by the treasurer of Juniata county, you will find for the plaintiff if you are satisfied the land he now claims is the same conveyed to him by the treasurer of Mifflin county, and now in the possession of the defendant.</p> <p>“ This view of the cáse renders it unnecessary to decide the other points which would arise if the sale by the treasurer of Juniata county was a valid one. If it was, the sale on the judgments entered on the surplus bond given by Singmaster, the purchaser, at the treasurer’s sale in Juniata county, would not divest the defendant’s title, for Singmaster had sold to Miller, the defendant, prior to the sheriff’s sale to plaintiff, and the lien of this bond upon the land had expired before the sheriff’s sale to General Hale.”</p> <p>The jury found for the plaintiff.</p> <p>The errors assigned were to the admission of the assessment book from Mifflin county; the treasurer’s deed to plaintiff, and the opinion of the court as to the evidence of identity of the tract; and the instruction that the sale in Juniata was void, by reason of the taxes not having been assessed and due one year before the sale.</p>

<p>A right of way over the land of another is designated in the common law as an “ easement,” and in the civil as a “ servitude;” and is defined to be a chax-ge imposed upon one heritage for the use and advantage of a heritage belonging to another proprietor.</p> <p>If the dominant and servient tenements become vested in the same owner, by the common law, the easement is extinguished by unity of title; by the civil, the servitude is lost by confusion; but it is but the name that is gone, the right remains under a higher title.</p> <p>Upon a subsequent severance of the estate, by alienation of a part, the alienee becomes entitled to all continuous and apparent easements, which have been used by the owner during the unity of the estate, and which are necessary for the enjoyment of the several parts.</p> <p>The owner of an estate may alter the quality of the several parts of his heritage, and if palpable and manifest, the several parts of the estate will go to the alienee in the condition in which they were placed, and with the qualities attached to them by the owner.</p> <p>Where the title to tenements with an alley between them, which had been dedicated to the use of both by a former px-oprietor, became vested in the same person, and the use of the alley was continued by him and his tenants, occupying the respective tenements as theretofore, and the owner’s interest in both was seized and sold at sheriff’s sale to different purchasers, the right of way in the alley, upon the severance of the title, revived and continued as it existed before the unity of the title.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an appeal by the Southwark Bank, to the Court of Common Pleas of Dauphin county, from the settlement made by the auditor-general and state treasurer, assessing the taxes, and settling the account of the bank for taxes, on dividends declared from 1849 to 1854, inclusive.</p> <p>On the 9th day of March, 1849, the legislature passed an act, entitled, 44 An Act to reinstate the capital, and extend the charter of the Farmers’ and Mechanics’ Bank of Philadelphia,” and on the same day it was sent to the governor for his approval. The 13th section of this act regulated the tax on bank dividends, and applied to the several banks of the Commonwealth.</p> <p>On the 14th March, 1849, the legislature passed another act, entitled,44 An Act to provide a more effectual and economical mode of collecting state and county taxes, in the counties of Chester and Franklin,” &c.</p> <p>The 7th section of this latter act supplied the 13th section of the act previously passed on the 9th of the same month, increasing the rate of taxation, and the 8th section enacted,</p> <p>44 That the 13th section of an act, entitled,4 An Act to reinstate the capital and extend the charter of the Farmers’ and Mechanics’ Bank of Philadelphia,’ passed by the legislature in March, 1849, be and the same is hereby repealed, and that henceforth the said section with the proviso thereto, shall not be deemed as a part or portion of said act.”</p> <p>This latter act was sent to the governor on the 14th March, 1849. Both acts were pending before him at the same time. On. the 15th of the same month, he signed the latter act, and so informed the two houses of the General Assembly. On the 16th he signed the act for the reinstating of the capital, and extending the charter of the Farmers’ and Mechanics’ Bank of Philadelphia.</p> <p>On the trial in the court below, the counsel for the Common•wealth offered the journals of the.House of Representatives and of the Senate, for the session 1849, to identify the acts, and to show at what times respectively they were sent to the governor. They were admitted by the court, to which the defendant excepted.</p> <p>The counsel of the bank contended, that the legislature had no power to repeal the act previously passed, while it was pending before the governor. That an act takes effect from the date of its approval; and the act of the 16th supplied, and, so far as it supplied, repealed the act of the 15th, and that the assessment of the taxes upon the dividend must accordingly be made under the law' of the 16th March, 1849.</p> <p>The court below (Pearson, P. J.), on the principal question charged the jury as follows :—</p> <p>“ Independent of the journals of the two houses, showing when these bilk respectively passed the General Assembly, it is impossible to doubt but that the Act of the 15th was before those bodies after that of the 16th, as the thirteenth section of the last-named act is particularly and minutely described in the law of the 15th; for although it is called an act, instead of a bill, in the reference, yet the title is accurately recited, and it is spoken of as having passed the legislature in March, 1849, without any further mention of the date, as none could be furnished; and it is declared that it shall not be deemed and taken as a part or portion of said act.’ Had this been described as a bill which had passed both houses of the legislature, and was pending before the governor for his signature, no one would probably have doubted to what the eighth section of the Act of the 15th of March referred. In our opinion, the description, as furnished, is attended with nearly or quite equal certainty. We cannot doubt the legislative intention was to revoke, repeal, and get clear of the 13th section of the bill afterwards signed on the 16th, and substitute the tax imposed by the seventh section of the Act of the 15th in its stead.</p> <p>“ If such was the intention of the law-making power, is there any constitutional inhibition against it being carried into effect ? The constitution provides, in substance, that every bill which shall have passed both houses shall be presented to the governor. If he approve, he shall sign it, and if not, he shall return it, with his objections, to the house in which it originated, &c. Other methods are pointed out for dispensing with ’ his signature, not now to be considered;' but the governor’s sanction is required, or the other forms of the constitution must be observed, before any bill can become a law. It cannot _ be doubted that had the governor signed the bill of the 16th,' it would have been in the power of the legislative body to have repealed the section under consideration. If it could be done after receiving his sanction, we can see no good reason why it shall not be revoked and stricken out before. It is very true that this cannot be effected by anything less than the whole law-malcingpower. After the bill has left the two houses, and is sent to the governor, they no longer can control it without his consent. He can approve or disapprove, the houses cannot reclaim the bill. But if they, by resolution, ask for its return before it is signed, the governor can remit it, and such has often been the practice. It is, in oar opinion, not the only method of getting clear of an obnoxious provision. We can see no valid objection to the houses passing another bill repealing any portion of the former, whilst it is yet in the hands of the governor, ancl if that functionary approves of the last-named bill, and lends it his signature, it becomes a law, and the obnoxious portion of the former bill is repealed; not by the other bill, but by the law of the land — by an act passed by the whole law-making power. Without the sanction of the executive, in his legislative capacity, the two houses cannot change a bill pending before him. The legislative journals clearly show that the bill which became a law on the 16th was the first of the two which passed the houses and was sent to the governor. Whilst it was pending before him the one signed on the 15th was passed, and immediately received the executive sanction. This, in our opinion, effectually revoked the thirteenth section as fully, to all intents and purposes, as if it had been expunged and stricken out by both houses before it was sent to the governor; and when he signed it the following day it was without that section. We hold that the thirteenth section of the Act of March 16th never was any portion of the laws of Pennsylvania, and any claim for taxes under it was unsanctioned by law. This leaves the seventh section of the Act of the 15th of-March in full force, and under its provisions the settlement of this bank tax was properly made by the auditor-general and state treasurer.”</p> <p>The verdict was for the Commonwealth for the sum of $2,469.20.</p> <p>The bank sued out this writ, and assigned for error the admission in evidence of the journals, and the charge of the court to the jury.</p>

<p>Error to the Common Pleas bf Bawphin county.</p> <p>This was an action of debt for a penalty alleged to have been incurred by the Harrisburg Bank, by reason of its failure to keep its notes at par in the city of Philadelphia, in accordance with the provisions of the 47th section of the general banking law, passed the 16th April, 1850 (which is quoted in the opinion of Mr. Justice Woodward).</p> <p>The annual reports of the officers of the bank made to the auditor-general, from the year 1852, inclusive, stated that “ The notes of this bank are not kept at par in Philadelphia, except for redemption for the state treasurer.”</p> <p>The depositions of the cashiers of several prominent banking institutions in the city of Philadelphia, and also of brokers, proved that while the notes of the Harrisburg Bank wete freely taken in the barter and' exchange of the city of Philadelphia at par, and also received on deposit in limited amounts by the banks from their customers, intermingled with paper of city banks or its equivalent, they were not so received in payment of notes, bills, and drafts.</p> <p>The bank proved by a number of merchants engaged in different branches of trade, that they could make their purchases in the city of Philadelphia with Harrisburg Bank paper on as favourable terms as with city paper, and that for that purpose it was equivalent to gold and silver.</p> <p>The Harrisburg Bank was rechartered, and the new charter went into operation in May, 1852, from which time the bank had paid the two mill tax or penalty up to August, 1854, leaving unpaid from August, 1850, till May, 1852, and the amount due for the last year, ending 1st August, 1853, which latter sum, $850, was paid- after suit brought, and before the trial of the cause.</p> <p>The bank defended on two grounds:—</p> <p>1st. That the notes had been kept at par within the meaning of the Act of Assembly.</p> <p>2d. That all penalty beyond two years was barred by the Limitation Act of 26th March, 1785, limiting actions for penalties in favour of the Commonwealth to two years.</p> <p>The Commonwealth contended that bank paper,'to be at par, must be equal to gold and silver in all the usual operations of trade, finance and commerce, and that the Harrisburg Bank notes did not come up to this standard.</p> <p>2d. That the bank was not in a situation to avail itself of the statute of limitations, not having made the returns for the years to which this defence would apply, of the fact of their notes being under par in Philadelphia, as required by the Act of Assembly.</p> <p>The court below (Pearson, P. J.), on the first question, charged the jury as follows:—</p> <p>. “ Were the notes of this bank at par in the city of Philadelphia ? If they were not, it has incurred the penalty. There has been much discussion, and considerable difference in opinion, as to tho meaning of the expression. Neither lawyers nor business men seem to exactly concur in its construction.' We conceive that, as used by the legislature in this act, it was intended to signify a currency ordinarily equal to gold and silver for all purposes, financial and commercial.</p> <p>“ Bank paper is not at par in a particular place, merely because it will be received in ordinary mercantile dealings; nor is it under par because brokers or money changers will not receive it without some discount or deduction. In the former instance it may be accepted for convenience, and because the merchant desires to sell his commodities, and expects to make a profit thereby. The latter class of men make their living by exchange, and expect to be paid for their trouble whenever they convert one kind of money into another, for the accommodation of the public, whether there is really any difference in the quality of the i funds or not.</p> <p>, “ The refusal of a bank to take the paper in the course of business will not, always prove that it is not of par value, as the act may arise from fear, or a desire to injure the credit of a rival institution ; and the acceptance of it from a customer, for his accommodation, will not always establish the reverse. The possibility of converting small sums into coin in Philadelphia, whether through the action of banks or brokers, without loss to the holder, is no certain criterion, as that may be done through a spirit of accommodation-; but the ability to raise gold and silver coin for sums to any amount likely to come into the possession of any dealer or bank in the city, without loss or discount, would be strong and cogent evidence that the paper was at par. You have a right to hear the combined or separate opinions of merchants, bankers, and brokers; in short, of all men dealing in, or making use of, bank paper, and from their whole statements make up your opinions as to whether the paper of the Harrisburg Bank was or was not equal to gold and silver coin in the city of Philadelphia, for all purposes for which paper of the banks of that city can be ordinarily used. If it was, it may be said to have been at par. If it could not be converted into coin without loss to the holder, so as in his hands to be equal to any other money in the city for that purpose, it was not, at par within the meaning of the legislative enactment. For some purposes the notes of city hanks are not equal in value to gold or silver coin; they are not received in the custom-house, and the holder might be put to some “inconvenience in exchanging them. Yet the trouble is scarcely appreciable, and no actual loss occurs; they are, therefore, at par. If the Harrisburg Bank was in the same situation, its paper may be said to be at par in Philadelphia, as the object of the'legislature was not only to create a safe, but a uniform currency among all the banks east of the Alleghenies.</p> <p>“ Whether the notes of the Harrisburg Bank were or were not at par in Philadelphia, is a question of fact for you, under all the evidence.</p> <p>“ Some of the witnesses mention that this hank had no agency in the city for the redemption of its notes, and therefore they were not equal to city paper. On the other hand, it is said that the fiftieth section forbade the establishment of any agency whatever, in the city or elsewhere, for any banking purpose. It may admit of grave question as to whether that is the true meaning of the prohibition; but we are not required to point out the means to be used by this or any other bank to keep its notes at par. The end must be attained, or the penalty paid, and that was known to the bank when it issued its paper.”</p> <p>On the statute of limitations, the court charged, that “ the claim would not be barred unless notice was given to the Commonwealth’s officers, that the notes were not kept at par in Philadelphia. We do not say that nothing short of notice in the annual report that the notes were under par, and the length of time they so remained, will answer the purpose; but there must be substantial notice of the fact; such as would put officers of reasonable vigilance on inquiry. No laches can be imputed to public officers, to the injury of the Commonwealth.”</p> <p>They were instructed if they found that such substantial notice had been given, and that the notes were not at par, that then the payment of $850, made since suit brought, discharged all the penalty which the bank owed, which the statute would not bar, and were therefore directed in that event to find for plaintiff such nominal sum, as would carry costs. If the notes were at par in Philadelphia, to find for the bank generally.</p> <p>The jury found $1, in favour of the Commonwealth.</p> <p>Both parties excepted to the charge, and sued out writs of error.</p> <p>Errors were assigned to the instructions of the court on the meaning of the word “ par” in the Act of Assembly, and the application of the statute of limitations.</p>

<p>The nonjoinder of a person, who ought to be joined, in an action founded on a joint contract, whether specialty or not, can only be taken advantage of by a plea in abatement, though the joint obligation appear to have been written, by the party not joined.</p> <p>Where defendants plead the nonjoinder of a party in abatement, and afterwards plead in bar and go to trial on the merits, it is a waiver of all defences peculiar to the plea in abatement.</p> <p>Where two partners are present when a partnership' note under seal is given, one writing and the other sealing the note, it is competent evidence to go to the jury, on the question of a joint execution.</p> <p>Where the jury find that the parties sued assented to the signing and sealing of the note, it is not material that they used the name of a firm, in which another who was not present nor assenting was a partner. By whatever name they called themselves, they were liable according to the tenor of the instrument they signed.</p> <p>The subsequent guaranty of the note by a firm of which such third party was a partner, does not affect the liability of the original parties, where the suit is upon the note itself, and not upon the guaranty.</p> <p>Where a judgment is confessed by one of two of the original debtors, and another, for the claim in suit, there is no merger of the original indebtedness.</p> <p>Extinguishment of one security is not to be implied merely from the creditor’s acceptance of a new one, voluntarily given by other parties for the same debt.</p>

John M. Downey, on the 17th September, 1851, executed an assignment of his estate to David Groff, Esq., for the benefit of his creditors. At a subsequent period he made a transfer of the residuum of his estate, which should remain in the hands of the assignee after the payment of his debts, to Dr. Robert L. McLellan.

<p>Where lands are sold by virtue of proceedings in partition, and the one-third part of the purchase-money charged upon the estate, the interest of which to be paid to the widow during her life, and at her death the principal to the heirs of her husband; a judicial sale of the land upon a judgment against the purchaser, will discharge the lien of a mortgage given by him, although the mortgage is prior to all other liens, except the charge in favour of the widow and heirs.</p>

<p>. Where a person claims to be the owner of personal property, his declarations of ownership do not render him incompetent as a witness in respect to such property, hut go to his credibility.</p> <p>It is not possible for a witness to disqualify himself, and deprive a party of his testimony, by his mere declarations of an interest.</p> <p>On the sale of a raft it is proper for the court to refer to the custom of the river which required a measurement, certificate, and payment of money to complete the contract.</p> <p>Where a party takes possession of personal property and uses it without the consent of the owner express or implied, he is a trespasser; and for such a wrong the appropriate remedy is trespass de bonis asportatis.</p>

<p>This was an appeal by Philip Bishop from the decree of the Orphans’ Court of Adams county, in relation to the bill of review and exceptions, at the instance of Sarah Hines, to the second account of Philip Bishop, administrator of Christian Bishop, deceased. One of the items complained of was an allowance of $500 to accountant, for his trouble and responsibility. The court below ordered and decreed that the claim of $500 be reduced to $121.89. And thereupon the accountant appealed.</p> <p>The errors assigned wore—</p> <p>1. The court erred in entertaining and sustaining the bill of review.</p> <p>2. The court erred in its decree altering and reducing the claim of the accountant from $500 to $121.89.</p>

<p>Certiorari to the Quarter Sessions of Blair county.</p> <p>In June, 1852, a petition was presented to the court, praying for the appointment of viewers, to lay out a road from a public school-house in Frankstown township, to the summit of Canoe .Mountain. On the 9th of December, 1852, the order issued; on the 21st of the same month the order was continued; and at April Sessions, 1853, the report was made, and the road ordered to be opened. On the 18th of February, 1854, the report was read a second time, and that part of the report laying out the new road confirmed, and that part vacating the old road not approved. The order to open issued March the 8th, 1854.</p> <p>The errors assigned were—</p> <p>1. The confirmation of the report of viewers, made and returned at the fourth term after the order to view, was irregular and void.</p> <p>2. The order to open was prematurely issued.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>Henry S. Shirk was engaged in the mercantile business in Lancaster county, and in January, 1855, became insolvent. On the 20th of January, 1855, he and his wife executed a deed of voluntary assignment of all their estate to Henry Shaffner, in trust for the benefit of creditors; reserving, however, such property as is exempt from levy and sale by the Act of Assembly of 9th April, 1849, to the amount of $300. At the time of the execution of this assignment, Henry S. Shirk was indebted to the firm of Mulford, Reeves & Co., who, on the 3d of March, 1855, obtained a judgment against Henry S. Shirk for $1298.24; upon which judgment an execution attachment issued, and attached the assigned property in the hands of Henry Shaffner, garnishee. On the 22d of June, 1855, the court granted a rule on the garnishee to show cause why judgment should not be entered against him for the amount of plaintiff’s judgment and costs.</p> <p>The court afterwards discharged the rule.</p> <p>The discharging of the rule to show cause, and not rendering judgment in favour of plaintiffs, was the only error assigned.</p>

<p>Error to the Common Pleas of Juniata county.</p> <p>This was an action of assumpsit brought by Jane Filson, administratrix of Davidson R. Filson, deceased, against Josiah R. Dunbar.</p> <p>Plaintiff’s intestate died in September, 1854, and letters of administration on his estate were granted to the plaintiff. The effects of the deceased were appraised agreeably to the Act of Assembly, and amounted to less than three hundred dollars, and were taken by the widoAV. In March following she sold a part of these same goods to the defendant, and this action was brought to recover the price.</p> <p>The defendant resisted a recovery on the ground that the action could not be maintained by the plaintiff in her representative character.</p> <p>The plaintiff requested the court to instruct the jury—</p> <p>“ That the addition of administratrix is mere surplusage; and under the evidence in the cause, if the jury believe it, the plaintiff is entitled to recover.”</p> <p>His Honour (Graham, P. J.) answered this point as follows:—</p> <p>“The plaintiff’s counsel requested the court to instruct the jury that the addition of administratrix is mere surplusage, and that under the evidence in the cause, if the jury believe it, the plaintiff is entitled to recover. The court instructed the jury that under the evidence, if they believed that the Avidow took the property under the $300 act, she should not recover in this action in which she sues as administratrix, but in an action brought in her own name and not as administratrix.”</p> <p>The jury found for the defendant.</p> <p>The charge of the court was assigned for error.</p>

<p>Where a testator devised as follows: “ I give unto my beloved wife Nancy during her lifetime or widowhood all my estate, real and personal, to be by her applied toward raising and schooling my children; and at her decease the remainder, if any, to be divided according to the laws of this Commonwealth, share and share alike, and in case she should see cause to marry, she is to have only her bed and bedding and an equal share with the children that may then be living out of my estate.” It was Held, That the devise gave the widow the whole estate during her widowhood, and upon her subsequent marriage, an equal share with the children in fee simple.</p> <p>That upon her marriage, her interest in the estate, except her equal share with the children, determined by the limitation contained in the devise, without entry or claim by those who had the next expectant interest.</p> <p>The possession of the widow subsequent to her marriage, without any notice of a hostile claim to the children, or any act demonstrative of an adverse holding, would be considered as permissive and not adverse.</p> <p>Where the widow, after her second marriage, joined with her husband in conveying the entire premises to a stranger, who placed the deed on record and took possession of the land, the possession became adverse to the children, and being continued for twenty-one years would bar their right of entry.</p> <p>The death of the widow at a subsequent period gave no new right of entry to those to whom the estate accrued under the devise, upon her marriage.</p>

<p>Where a person employed by one as a servant, is using|the team of his master, for his own purposes and benefit, and in the absence of, and without any directions from the master, uses the team so negligently as to occasion injury to a third party, the master is not liable for such injury, although he assented to the servant using the team for his own benefit.</p> <p>If one man loans or hires a horse to another, to be used exclusively for the purposes of the latter, the owner of the horse is in no wise responsible for the negligent manner in which the horse may be used.</p> <p>To entitle a plaintiff to a verdict against several defendants as joint trespassers, it must appear that they acted in concert in committing the trespass for which the action is brought.</p> <p>s' Where two or more commit separate trespasses, or do separate acts tending to produce injury to another, without any concert, there is no joint liability, and consequently there can be no joint recovery against them.</p> <p>Where one person places a carriage upon one side of a street, and another without any concert with the former places a team of horses on the opposite side of the same street, and a person passing along is kicked by one of the horses, and thrown against the carriage on the other side and injured, both by the stroke and the fall against the carriage, he cannot recover jointly against the parties who placed the obstructions on the opposite sides of the ^ street.</p>

<p>Appeal from the Common Pleas of Bedford county.</p> <p>This was an appeal by Samuel Brown, surviving executor of John Keefe, deceased, from the decree of the court distributing the proceeds of the sheriff’s sale of the personal estate of Solomon Filler.</p> <p>On the 26th March, 1855, Sarah Duffy, administratrix of Henry Duffy, deceased, obtained two judgments in the Common Pleas of Bedford county, against Solomon Filler; one for $310, and the other for $75. And on the following day one was entered in the same court against same defendant for $500 in favour of John Keefe; and on the same day one in favour of Mary Ann and Margaret Davidson for $272.89. Fieri facias were issued on these judgments in the following order: — On the judgment of Keefe’s executor, on the 27th of March, 1855, and placed in the sheriff’s hands at twenty minutes past three o’clock P. M. On the two judgments of Duffy’s administratrix and of Davidson’s on the same day, received by the sheriff at fifteen minutes before six o’clock P. M. The personal property was levied on the same day by the sheriff, and a part deposited in a room in Filler’s house, and a part removed. The executions were returned with the boy, there not being time to sell prior to the return day. Filler died on the 14th April, 1855.</p> <p>Duffy’s administratrix and Davidson issued venditionis on their judgments, and the property was advertised and sold on the 6th, 9th, and 15th of June, 1855. Keefe’s executor issued a vend, exp., which came to the sheriff’s hands on the 9th day of June, being the second day of sale.</p> <p>The money raised by the sale — $998.52—was brought into court for distribution, and the court appointed an auditor, who distributed the fund .among the creditors as follows :—</p> <p>To the payment of an éxecution and costs in favour of Snively, which was not disputed, $34.14. To Keefe’s executors, deducting an account due from Keefe to Filler, of $107.29, $409.51; and the residue of the fund, after deducting costs and expenses of audit, pro rata, among the executions of Duffy’s administratrix and the' Misses Davidson. Exceptions to this report were filed, and while they were pending, Sarah Duffy and Mary Ann and Margaret Davidson, applied to the court for an issue, alleging that a part of the Keefe judgment was paid, and also that the fi.'fa. on his judgment had been issued to hinder and delay other creditors, and that by reason of the arrangements and agreements made with the defendant and his family, the lien of Keefe’s execution had been postponed in favour of the petitioner’s subsequent executions.</p> <p>The court thereupon directed the issue in which Sarah Duffy was made plaintiff, and Samuel Brown, executor of John Keefe, deceased, defendant.</p> <p>The jury found a special verdict, reciting the judgments and executions, levy and sale, as above stated, adding the following:—</p> <p>“We do also find that the sheriff was spoken to by the plaintiff, John Keefe, in relation to the fi. fa., which was in his hands, and that the sheriff was not delayed in the execution of -the process by the directions of the plaintiff; and that the writ was issued to prevent other creditors from levying on the property.”</p> <p>The court entered a judgment for the plaintiff on the verdict, and. decreed distribution in accordance with it, postponing the execution of Keefe’s Executors v. Filler.</p> <p>Brown, the executor of Keefe, thereupon removed the cause to this Court by appeal.</p> <p>The appellees moved to quash the appeal, on the ground that the record should have been brought up by writ of error to the proceedings on the feigned issue, and not by appeal; and also because of some want of conformity to the rules of court in preparing and serving the paper-book.</p>

<p>Error to the Common Pleas of BérJcs county. ,</p> <p>This was an action of ejectment br'ought by David Potts to-recover possession of a tract of land, containing five acres, more or less, situate in Robeson township, Berks county. The plaintiff. and defendant are owners of adjoining tracts of land. The disputed tract has until recently been woodland. The line between them is described in .the patent to the plaintiff and in the deed of the adjoining land, under which the defendant claims, as running from a chestnut tree corner, in a south-westerly direction, a straight line, one hundred and fifty-four perches. The whole land on the north side of the plaintiff’s property belonged, in 1805, to Peter Myers. The western part he subsequently sold to David Wynn, the middle became vested in Robert Gilmore, and the eastern part in Thomas Wynn and others. The lines separating these properties run nearly north and south, and perpendicular to the line dividing the plaintiff’s property from the Peter Myers land. In 1841 the defendant became the owner of the David Wynn tract. For more than fifty years a fence had stood on or near the line between David Wynn, (now defendant’s) land, and the land of the plaintiff. In 1846, the defendant, in the absence of the plaintiff, removed this fence southward about six rods in some places, and twenty-five feet in others, claiming the newly enclosed land. To recover possession of this tract thus taken from the plaintiff, the suit was brought. Upon the trial the plaintiff having given in evidence his title under the Commonwealth to a tract of land, having the chestnut tree for a corner, and bounded on the north by a line running westwardly to the end of a line running southwardly to a stone heap called “frog pond corner,” and having further shown the removal of the fence by the defendant southward, proceeded to prove that David Wynn, the defendant’s grantor, acknowledged the old fence as the line between him and Potts. The defendant then, after having shown the existence of a stone heap in the line between Wynn and Gilmer, offered to show that Wynn and Wynn’s grantor, on several occasions, asserted his line to be further south than the old fence, and running as far south as the stone heap, on the line between Wynn and Gilmer.</p> <p>To these declarations the plaintiff objected, but the court below overruled the objections, and admitted them under exceptions by plaintiff.</p> <p>That part of the charge of the court below (Jones, P. J.), material to the questions raised in this court, was as follows:—</p> <p>“ It is undoubtedly true that a man may put up a fence upon his own land, and as far within his line as he pleases, — and that will not amount to an abandonment of such of his land as is situated beyond. Of such land, so beyond his fence, he may resume possession at any time, unless he comes to be shut out by adverse possession for twenty-one years. This is upon the supposition of the owner acting from his own mere will, without any arrangement or agreement with an adjoining owner. An occasional trespass of the adjoining owner in cutting timber 'on the land of his neighbour, outside of the neighbour’s fence, would not amount to such an adverse possession as would give the kind of title acquired in that way. But if we were to proceed regularly to farm the land, or to join his fences up to the one set back— and this were persisted in for twenty-one years, he would acquire title to the land so farmed or enclosed.</p> <p>“ David Wynn, under whom the defendant claims, himself seems to have considered this worm fence a line fence; two of his children so testify for the plaintiff. On the other hand there is testimony that David Wynn claimed below that fence — south of it. Witnesses for the plaintiff say that the worm fence came out on the east to the stone heap corner, and that the corner of the new fence is south of where that old stone heap corner stood, at which' the worm fence ended. This again is contradicted; and it is said that the old worm fence ended some six or ten feet north of that stone heap corner at the east, and not at it. Then there is the evidence as to the exercise of ownership, which may be very material in connexion with the declarations of parties who were owners at the time the declarations were made. If one admits a right in another, and the other acts in conformity to the admission, it is very strong evidence that the right is understood between them, as it is admitted. With regard to the acts in this case, as whether Potts ever did cut the timber up to the old worm fence, it is for the -jury to ascertain how they are.</p> <p>“ The whole controversy is as to the true line between these parties — whether it is the old worm fence or the new fence.</p> <p>“If that old fence was the line, made so by the acts of the parties, it would matter not what was called for by the deeds, nor what might be the discrepancy in the testimony of the surveyors, nor what the variations of the compass; none of these could remove the fence or shift the line. Even if the new fence were placed with the utmost mathematical precision on the originally true line, still if Wynn and Potts treated the old worm fence as the true line, and acted upon it mutually, it would become for this controversy the true line, putting aside all others. How the facts are, it is for the jury to say.</p> <p>“ If the old worm fence then is the line, Potts will recover all the lands between the new fence and that old fence; if not, the Verdict would be for the defendant, Everhart.</p> <p>The jury found for the defendant.”</p> <p>The errors assigned were to the admission of the declarations of Wynn, and that the court erred in charging the jury: “ The whole controversy is as to the true line between these parties— whether it is the old worm fence or the new fence.” If the old worm fence is the line, Potts will recover all the lands between the new fence and the old fence; if not, the verdict should' be for the defendant.</p>

<p>Error to the Common Pleas of Dauphin county</p> <p>This was an action of replevin. On the 17th April, 1855, plaintiffs in error, who were plaintiffs below, took up, adrift in the Susquehanna river, an ark-load of lumber, the property of defendant. The Act of 20th Mareh, 1812, provides that any person or persons taking up such lumber “ shall lodge a list by him subscribed within thirty days thereafter, with the nearest justice of the peace of the town or township where such lumber was taken up, of the number, quality, and quantity of the logs, shingle-bolts, boards, shingles, or other lumber, with the marks on the same; and the said justice shall enter the same on his docket, and cause the same to be published at least three weeks, &c. The act also fixes the compensation to be paid to the salvor by the owner of the lumber. To obtain this compensation, Hynicka, one of the plaintiffs went before a justice on the 19th April, 1855, and filed the following statement:—</p> <p>“ George Hynicka returns eighty-nine white pine logs, marked C. D. Chatham and Devling, 17th April, 1855; two platforms of fence boarding or rails, 17th April, 1855, part of an ark marked A. B. Smith, 18th April, 1855. The amount of the above lumber cannot be ascertained.</p> <p>“(Signed) George Hynicka.”</p> <p>Sworn and subscribed 19th April, 1855.</p> <p>C. A. Snyder, J. P.</p> <p>On the 20th April, Smith, the defendant, came to Harrisburg, saw one of the plaintiffs, offered $10 for the services rendered; this being refused, he went to the justice’s office, examined the record, saw its insufficiency, and directed his agents to take possession of the lumber. This they did. Plaintiffs immediately issued their writ of replevin, and had the property delivered to them. After the replevin was executed, and the lumber in the possession of plaintiffs, they had it drawn upon shore and counted, and then furnished a minute description verbally to the justice, which was by him noted upon his docket. This list was not subscribed by any one.</p> <p>The question raised upon the trial will sufficiently appear from one of the points submitted by the counsel of defendant, and the answer of the court thereto:—</p> <p>“ The information made by Hynicka before the justice was not a compliance with the provisions of the Act of 1812.”</p> <p>To this point the court (Pearson, P.) answered as follows:—</p> <p>“ The first section of the Act of 1812 requires the person taking up lumber floating on the waters of the Susquehanna river, to file with the nearest justice, within thirty days thereafter, a particular description of the lumber taken up, the list to be 4 subscribed’ by the party. The marks must also be set forth, and the justice is required to. enter the Same on his docket, and cause it to be advertised in a newspaper; and if the lumber is not taken away in three months, it is forfeited to the finder. In the present case a statement was filed by Mr. Hynicka, and subscribed by him,, but the description.was entirely defective. The only portion applicable to this is ‘part of an ark, marked A. B. Smith.’ It is not stated whether the ark was loaded or empty, or if loaded, the justice is not informed whether it is with lumber, grain, or iron i for the words, amount of lumber cannot be ascertained,’ we consider applicable to the two platforms of boards, rails, &c., before described. Although in our opinion the precise quantity of lumber cannot always be ascertained, yet it can generally be stated with reasonable certainty; so that the owner may have some chance to recpgnise it by the description. Had it in the present case, in addition to what was furnished, mentioned that the ark was loadéd with pine boards and plank, and made an estimate of the quantity, we should have held it to be sufficient. If a raft of boards is described by the number of platforms, kind of boards, marks thereon, if any, and such other matters as can readily be observed, it is sufficient. We do not believe the act intended a more minute description than can be furnished by critical examination, as it might often be highly injurious to the owner to have them drawn and measured; as it would frequently subject him to the expense of re-rafting before reaching his market. But here no description whatever was furnished of the boards, but merely of the ark which once contained them, and at that time had gone to pieces.' This was obviously insufficient.</p> <p>“ Smith, it seems from the evidence, went to the justice’s office, examined his record and saw its insufficiency. He then directed his agents to take possession of the boards, without paying salvage ; and this, in pur opinion, he was justifiable in doing. The plaintiffs then issued this writ of replevin, and we are of the opinion, at that time they were not entitled to the possession of the lumber, for the purpose of securing their salvage : as they had not complied with the Act of Assembly. It is contended, however, that they had thirty days within which to file a description; and did file a minute one within the time. This suit must be tried according to the rights of the parties when the writ issued. If the plaintiffs were tiofc then entitled to retain possession of the lumber as against the owner, for the purpose of obtaining salvage, this proceeding cannot be supported. That they were not, is to our mind very clear. Nor was the defendant bound to suppose that an additional description would be filed. He had a right to treat what was on the record as the end of the proceeding.</p> <p>“ Some days after the replevin was executed and the lumber delivered to the plaintiffs and drawn, a minute description was furnished to the justice; but even this was defective. The list then furnished was not subscribed’ by the person taking up the lumber, nor by any one ; but was given in verbally, and by the justice written down on his docket. He testifies that the paper exhibited was the only one ever furnished by the plaintiffs, or any of them. This also is a departure from the requirements of the statute.”</p> <p>The answer to this point was the error assigned in this court.</p>

<p>Error to the Common Pleas of Olinton county.</p> <p>. This was an action on the case brought by Moses P. Little against Hugh Devling & Co., to recover the first instalment due on an article of agreement for the sale of land. Little, by articles of agreement, dated 17th August, 1854, agreed to sell and convey to defendants on or before the first day of October, 1854, a certain tract of timber land in Clinton county, containing eighteen hundred and fifteen acres, in fee simple and clear of -all encumbrances. The defendants contracted to pay $10 per acre, $8000 of which was to be paid bn the delivery of the deed, and $5075 on the first day of April, 1855, and a like sum on the first day of December, 1855.</p> <p>At the time of making this contract Little had not received a conveyance from D. B. Taylor and others, of Philadelphia, from whom he had purchased the tract of which the above comprised about the one-half. On the 7th September, 1854, this conveyance was made, and Little executed to Taylor and others, two mortgages for the sum of $15,740, to secure the unpaid purchase-money. On the 23d of September, 1854, the parties met at the office of L. A. Mackey, Esq., in Lock Haven, who had drawn a deed for the premises from Little to Devling and others, for the land agreed to be conveyed, which Little had executed and left with Mackey.</p> <p>The mortgages being on record, and several unsatisfied judgments appearing on the records against Little, the contract could not be consummated on that day. The defendants were informed that Mr. Taylor was willing to release the land from the lien of the mortgages Little was to convey to them, if he received $6000 of the $8000, they were to pay in hand. It was then agreed that the defendants should go to Philadelphia and meet Little there on the 29th September, 1854, and that the money should be paid to Taylor, and the releases received there. And that one of the bonds to be given by the defendants should be placed in the hands of Mr, Mackey, as security against the liens of the judgments against Little. The releases were prepared and executed, but the defendants did not meet Little at the time and place appointed.</p> <p>On the 12th of December, 1854, this action was brought.</p> <p>At the trial of the suit, the plaintiff gave in evidence the article of agreement, and having produced and tendered to the defendants’ counsel at bar, the deed, which had previously been left with Mr. Mackey, they called Mr. Mackey, who produced two releases to Mr. Little — one'executed by Cornelius Kidder, Charles S. Gilman, Charles S. Gilman for Campbell Graham, C. A. Birkhead, and James Birkhead, Jr., purporting to release tracts Nos. 3636, 3638, 3633, and 3637, from the lien of the mortgage given to them by Mr. Little, béaring date the 29th day of September, 1854; the other executed by David B. Taylor, Mary S. Bunting, Charles Cadwalader, C. Cadwalader Sellers, and Benjamin E. Taylor, purporting to release the tracts above mentioned from the lien of the mortgage given by Mr. Little to the said releasors and a certain S. B. H. Yance. No authority was shown in Charles S. Gilman to. execute the first-mentioned release for Campbell Graham, and no assignment of the interest of S. B. H. Yance to D. B. Taylor, as recited in the last-mentioned release.</p> <p>Mr. Mackey testified that these papers had been sent to him by Judge Parsons, the attorney of David Í3. Taylor, with instructions not to be given up by him until he should receive for Mr. Taylor the sum of $7000. He further stated that he did not feel autho-. rized to let them go ofit' of his possession without receiving the money which he was directed to demand before delivering them. The court, notwithstanding the objections stated by Mr. Mackey, directed the releases and deed to be deposited with the prothonotary, subject to their further order, which was accordingly done.</p> <p>' The deposition of D. B. Taylor was offered in evidence by the plaintiff and objected to by defendants, but admitted by the court. He testified, that in the latter part of September, Little called upon him to get a release, of the mortgage on the lands, he sold to Devling & Co. He told Little they would give him a release. Pie ordered Judge Parsons to prepare a release, which was done and executed by himself and others in September last.</p> <p>, Judge Parsons’s deposition was admitted under a similar objec-' tion, and he testified to the preparation of the releases.</p> <p>The court" below (Burnside, P. J.) charged the jury as follows:—</p> <p>“ On the 17th of August, 1854, the plaintiff, Moses P. Little, by articles of agreement, agreed to sell and convey, by good and sufficient deed, to the defendants, several tracts and parcels of tracts of land on the waters of Paddy’s Run, in this county, containing in all eighteen hundred and fifteen acres, for the price or' sum of $10 per acre; $8000 to be paid on the first day of October then next, when the deed was made; $5075 on the first day of April, 1855, and the like sum on the first day of December of the same year. On the 14th of September, 1854, Mr. Little, with his wife, executed a deed to the defendants in pursuance of this agreement. No objection is made to the deed, nor is the title questioned. They contend, however,—</p> <p>“ 1st. That suit was brought before a conveyance was tendered.</p> <p>“ 2d. That at the time suit was brought the plaintiffs were not entitled to call for specific performance.</p> <p>“ 3d. That the papers produced at bar did not constitute such a title, under the evidence, as the defendants would be compelled to accept, because one of the releases purports to be made by an attorney in fact, and no power is shown, and the other recites an assignment which is not shown; and the tender is not good under the testimony of Mr. Mackey. »</p> <p>. « rp^g answer to these objections depends on the weight given by the jury to the testimony of Mr, Mackey. (The court read the testimony of Mr. Mackey.) Now on the 23d of September, 1854, the time the parties were all at the office of Mr. Mackey, the plaintiff wag not in such a situation that he could make a deed, which the defendants were bound in law to accept. There were two mortgages on record against him, amounting in all to $15,800 —the sum of $5250 being then due, with interest from the 6th of July, 1853; and there were judgments open in amount about $5000, although it would seem that there was not that amount due upon them. After various propositions made by the plaintiff, Mr. Mackey says that he, Chatham, Stockham, and Churchman, went out into the yard, and after consulting together, came in and made the following proposition to Mr. Little, which was agreed to and accepted by him, viz.: that the parties would go to Philadelphia and meet Little there on the following Friday (the 29th, two days previous to the day on which the deed was to be made, in pursuance of the article of agreement), and there the defendants themselves would pay to David B. Taylor the money due on the mortgages, and obtain his release; and that one of the bonds for $5075 was to be deposited with Mr. Mackey, as security for the liens of the judgments — which bond he was not to deliver up until the judgments were satisfied. That the parties were all agreed to, and satisfied with this arrangement. That Little offered to leave both the bonds, but that they considered one would be a sufficient security against the judgments.</p> <p>“ Did the defendants waive the conditions in the agreement ? If you believe the testimony of Mr. Mackey, we instruct you that it was a waiver in law. They have not shown that they went to Mr. Taylor’s, in Philadelphia. On the contrary, he proves that they did not call on him, although he was there, ready to carry out the agreement as made in Mr. Mackey’s office. The papers and the deed are deposited with the prothonotary, subject to the •order of the court.</p> <p>“ The parties had the right to waive the conditions in the agreement. If you believe they did so, and did not comply or offer to comply with the agreement sworn to by Mr. Mackey, the plaintiff is entitled to your verdict.”</p> <p>The jury found for the plaintiffs $8456.</p> <p>The errors assigned were to the ruling of the court below, directing the releases to be filed, — in admitting the depositions of D. B. Taylor and Judge Parsons, and to the charge of the court to the jury.</p>

<p>Alpromise to marry a minor does not require the consent of the parent or guardian to make it binding.</p> <p>Therefore, in an action by a woman for a breach of promise of marriage made to her whilst a minor, the declarations of her father, that he did not know of the contract nor give his assent to it, are inadmissible.</p>

This was an action brought by John Hatz against Christian Snyder, on a promissory note made by Snyder on the 22d July, 1854, in favour of R. C. Shenk, for $150, at sixty days, and by Shenk endorsed to plaintiff. The note was protested for non-payment. The suit was brought on the 6th December, 1854. On the trial the plaintiff gave in evidence the note and protest.

<p>The true test to ascertain whether a plea of autrefois acquit be a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first.</p> <p>As a general rule, place is only essential upon the question of jurisdiction, and even where it is incorrectly stated, if the evidence establishes that the offence was committed within the jurisdiction of the court, the variance will not be fatal.</p> <p>By the Act of the 23d September, 1791, the Quarter Sessions of the county where a bastard child is born, has jurisdiction to try the reputed father upon a charge of fornication and bastardy.</p> <p>. In such ease it is not necessary to aver in the indietment, the place or county where the fornication was committed.</p> <p>Where the indictment in such cases charges the offence of fornication and bastardy to have been committed within the county in which the ehild was born, and the evidence shows the fornication to have been committed, and the child to have been begotten in another county, the variance is immaterial, and a conviction and sentence is proper.</p> <p>Where a defendant has been once tried for an offence upon an indictment on which he could have been legally convicted and sentenced, the plea of autrefois acquit will avail him to a second indictment for the same offence.</p> <p>Where an indictment is quashed or a judgment arrested upon the suggestion of the defendant, the Commonwealth is entitled of right to a writ of error, and she does not waive it by an unsuccessful effort to convict the defendant upon a new indictment for the same offence.</p>

This was an amicable action of debt by Solomon Oswald, executor of Peter Kopp, deceased, against Simon Kopp and Jacob Kopp.

<p>Where the plaintiff made a lease for a lot of ground to the defendant for the term .of one year, at the nominal rent of one dollar, and afterwards by his acts and declarations showed that he had given the lot to the defendant as a reward for past services, corroborated by the facts that the defendant had occupied the lot ever since, claiming it as his own for more than twenty-one years, and that it had been taxed in his name and the taxes paid by him: Held, These facts constituted a perfect gift of the lot to defendant.</p>