Volume 27 — Pennsylvania State Reports

This was an action of ejectment brought by James Fox and Richard Fox, to recover eight hundred acres of land in Taylor township, Centre county. The plaintiffs- claimed title under two warrants, surveys, and patents.

<p>A treasurer’s sale of several tracts of unseated land separately assessed, at a time, for one price, is void. The Act of Assembly gives no authority, except for the sale of each tract separately.</p> <p>Where three tracts are mentioned in the assessment by their respective warrantee names, and the quantity in each given, and that quantity aggregated and valued at a certain amount per acre, this constitutes a separate assessment of each tract.</p> <p>Whore several contiguous tracts owned by the same person are assessed as one tract, it may be presumed that the owner so returned them, and a sale as one tract in that form would be proper as being a strict execution of the lien. But a joint sale of tracts severally taxed is unauthorized.</p>

<p>To make the deed or mortgage of a married woman, of her land valid, it is necessary to show by legal evidence that no fraud was practised upon her, but that she executed it with a full knowledge of its contents, and that her will was perfectly free and that her mind accorded with the act.</p> <p>If her husband uses his influence and power over her in such manner as to control her unduly and so as to make her act under Ms will and not her own, the deed is void.</p> <p>To make her execution valid, there must be no imprisonment of her mind, nor advantage taken of her weakness, and she must act voluntarily and not by compulsion either physical or moral.</p> <p>Those facts can only be proved by the certificate of the magistrate, that he examined her separate and apart from her husband, that he made the contents of the deed fully known to her, and that she declared her execution of it to be voluntary and free from any sort of coercion.</p> <p>Such a certificate is conclusive in favour of one who accepted it in good faith, and paid his money without knowing or having any reason to suspect that it is untrue.</p> <p>But if the certificate be false in fact, and the grantee knew it, or knew of circumstances which would put an honest and prudent man upon inquiry, then it may be contradicted by parol evidence.</p> <p>When the certificate is overthrown by evidence that the examination was in the presence of the husband, that the wife was not properly informed as to the nature of the transaction, or that she was under the influence of fraud or coercion, it goes for nothing.</p> <p>The declarations of the wife, not made in the presence of the grantee, while the deed was being prepared, of her unwillingness to execute it, are admissible in evidence as part of the res gestee.</p> <p>The cases of Sehroeder v. Becker, 9 Barr 14, and Louden v. Blythe, 4 Harris 532, affirmed.</p>

Error, to the Common Pleas of Berks county. This was an action of trespass quare clausum fregit brought by John R. Edelman against Joseph Yeakel and others.

<p>An assignment of a patent by an attorney in fact to which he signs his name “ H. E. S., Attorney for J. M.,” and in which the name of the assignee is not stated, is not at law a good execution of a power to sell land.</p> <p>But where it contains the acknowledgment of the receipt of the purchase-money from a person named, and it is proved that the money was paid upon the understanding that the land was to be conveyed, it would, be sufficient in equity to induce a chancellor to decree a conveyance.</p> <p>Where an individual purchased land under articles of agreement, and with his consent the land was transferred to another, under a parol agreement that the land was to be divided between them, and such division is made, and the parties take possession of their respective parts, such an agreement is not void for want of being authenticated by a memorandum in writing according to the requirements of the statutes of frauds and perjuries.</p> <p>The notes of counsel showing what a deceased witness testified on a former trial between the same parties touching the same subject-matter, are evidence, when proved to be correct in substance, although the counsel does not recollect the testimony independent of his notes, and does not recollect the cross-examination.</p> <p>When a party produces a deed from a third person, purporting on its face to have been duly executed and acknowledged, the possession of it by the grantee or by the party producing it, is prima fade evidence of delivery</p>

<p>The officers of the Land Office have no authority to grant warrants, for any but unap2>ropriated -land.</p> <p>A warrant and survey for lands vested in the Commonwealth by oschoat, granted either before or after the time for the traverse has expired, is a nullity, and confers no title on the warrantee.</p> <p>The title of the Commonwealth to escheated lands can only be divested in the manner prescribed by the statutes relating to such estates.</p>

Robert Patterson instituted an action of debt on an article of agreement against William H. Patterson, and on the 12th of December, 1858, recovered a judgment for $2427.86. The defendant sued out a Avrit of error, and at the folloAving May Term the judgment was affirmed in this court. The plaintiff issued an execution returnable to December Term, 1854.

<p>The refusal of the Court of Common Pleas to take off the confirmation from a report of auditors, on the account of an assignee under a voluntary assignment, is not a decree from which an appeal will lie to this court.</p> <p>Nor will it enable this court to review the original decree confirming such report where the appeal has not been entered within a year from the date of such confirmation, as provided in the Act of Assembly.</p> <p>Where the petition is in form or substance a bill of review on facts subsequently discovered, or which the appellant had no opportunity of presenting at first, the case might be different. Per Black, 3.</p> <p>A creditor who has a lien upon a particular portion of the assigned estate, and out of the sale of a part of which he realizes a portion of his claim, is entitled to his pro raia dividend on the whole claim out of the general assets in the hands of the assignee to an amount sufficient to pay the balance of his demand in full, although a portion of the estate upon which he holds the lien remains unsold.</p> <p>An assignee in such case who has paid claims in full which, upon a distribution, are only entitled to a pro rata payment, cannot claim to be subrogated to the rights of the lien creditor, for the purpose of indemnifying himself for such payments beyond the assets in his hands.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>On the 22d of May, 1854, Emma C. Hudson commenced an action in the Court of Common Pleas of Lancaster county against the Pennsylvania Railroad Company, to recover damages for injuries to George Hudson, resulting in his death. George Hudson left at his death a widow, the said Emma C. Hudson, but no children, nor father; but left his mother, Mary Hudson, surviving him. The action was brought under the 39th section of the Act of 15th April, 1851, which provides, that whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow, of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned. The declaration was filed .May 25, 1854. By the Act of 26th April, 1855, it is provided, that the persons entitled to recover damages for any injury causing death, shall be the husband, widow, children, or parents of the deceased, and no other relative; and the sumvrecovered shall go to-them in the proportion they would take his-or her personal ■ estate in case of his intestacy, and that without liability to creditors ; and that the declaration shall state who are the parties entitled in such action. On the 1st of June, 1855, the suit was referred to the Honourable Townsend Haines, Honourable John J. Pearson, and John Evans, Esq., by agreement filed, whose award was to be final and conclusive. On the 7th of December, 1855, the report of the referees was filed, finding for the plaintiff the sum of $4200, after crediting $300 paid. Accompanying this award the referees filed a paper, in which they say, “ whether the widow will recover for her own use, or in trust for herself and the next of kin, as declared in the latest act, we are not called on to determine. That question must be decided by the court when the ■money is paid. We are clearly of opinion that ho other action will lie for this injury, and the damages awarded are intended to be in full of all claims against the defendant by the representatives of the deceased.”</p> <p>The amount awarded has been paid by the defendant, and for the purposes of the present motion is agreed to be considered in court; and on the 17th of December, 1855, Mary .Hudson, the mother, moved the court to direct that one-half of the sum recovered, after payment of expenses, should be paid to her the said Mary Hudson, and that the judgment be marked one-half to her use accordingly. On this motion the court below, Judges Lonq and Hayes, were divided in opinion, and on the 3d of April, 1856, the motion was denied upon a divided court, from which decree this appeal is taken by Mary Hudson.</p> <p>The error assigned was the denial of the motion.</p>

On the 16th January, 1851, Joseph Golmley and Simeon Briggs mortgaged to Emanuel C. Beigart a lot of ground with a foundry and other buildings erected on it, in the city of Lancaster, to secure the payment of $6000. The premises afterwards were conveyed to O. 0. M. Caines, subject to this mortgage.

Adam Becker died in October, 1854, leaving a widow and three children surviving him. The personal property left by deceased amounted, according to the appraisement, to $52.50, and a house and lot of four acres of land at $165, making in all $217.50, which the widow claimed to retain for the use of herself and family under the Act of 26th April, 1850.

<p>Where a testatrix directed her real and personal estate to be equally-divided “ between the children of my brother John, deceased, and the children or heirs of my sister Hosanna, deceased, and the children or heirs of my sister Catherine, deceased, and the children or heirs of my sister Juliann, deceased, and my brother Jacob or his heirs or legal representatives.” It was held, that the children described take by classes and not per capita.</p> <p>Where the bequest is not to the several children of brothers and sisters, but to the children of the several brothers and sisters, and the classes are distinguished by the repetition of the word “ and” between each of them, it amounts to a classification, and the children in each instance take their parents’ share.</p> <p>In construing devises or bequests in favour of the next of kin, the court has regard to the legal and customary principles governing' the descent and distribution of estates, which is according to classes and is presumed to be the intention of a testator unless the contrary appears.</p> <p>The rule of construction is, that in all doubtful cases, the claim of the heir shall have the preference.</p>

This is a proceeding in the Orphans’ Court by Sarah Montgomery, to enforce the payment of a legacy given to her by the. last will and testament of her father, Francis Smith, deceased.

Christian Gryder died in the year 1854, having first made his last will and testament in writing, and leaving a widow and five children surviving him.

Christian Herr died on the 1st May, 1850, having made his last will and testament, in which he appointed Christian S. Herr, David B. Herr, and Abraham.Eorry to be his executors, and gave to them as trustees a portion of his estate for the use of his daughter, Susanna Brady, during her life, and to be paid to her children after her death.

Error, to the Common Pleas of Cumberland county. This was an action of debt, brought by the executors of Robert Laird, deceased, against David Grier, administrator de bonis non with the will annexed of James Moore, deceased, with notice to John Moore and wife, and Mary Moore, in which the following facts appeared:— James Moore, by his last will and testament, which was proved the 20th June, 1834, directed a part of his real estate, to wit, a house and lot of ground with a…

This was a proceeding to view and lay out a road. The viewers were appointed at April sessions on the petition of citizens of Little Britain township. During the same sessions, the court, on motion of the attorney for the petitioners and affidavit filed, substituted another for one of the viewers previously appointed. On the 31st July the report of the viewers was filed, laying out the road prayed for byv certain courses and distances.

<p>Error to the Common. Pleas of Lancaster county.</p> <p>Samuel Groff, the plaintiff below, and plaintiff in error, brought suit against Ephraim Ressler, before a justice of the peac.e, on the 7th day of May, 1852, on an account for work and labour done. The summons was served on the same day, to appear on the 11th of the same month. On the day of appearance the cause was postponed until the 15th of May, 1852. On the 11th Ressler brought suit against Groff in his own name, before the same justice, on a note under seal in favour of Hildebrand & Mayers for $34.19, and endorsed in blank by the payees to Ressler, and the day of appearance being likewise for the 15th of May. On that day neither of the parties appeared, and judgment was entered in favour of Groff in his suit for $33.65, and in favour of Ressler against Groff for $40.59. On the 20th May, 1852, Groff assigned his' judgment to Peoples & Rohrer, and on the 29th of the same month Ephraim Ressler appealed to the Common Pleas. In October, 1852, the plaintiff entered a-rule of reference, and the arbitrators awarded him $33, and from this award Ressler again appealed. Ressler died shortly after, and his administrator was substituted as defendant. The cause came on for trial in the Common Pleas; the defendant set up the note and judgment obtained on it as a set-off against the plaintiff’s demand.</p> <p>• After this defence* was set up, the plaintiff endeavoured to show by testimony that the note had been transferred by Hildebrand & Mayers to Ressler, conditionally, and that they were only to be j)aid for it if Ressler recovered it from Groff. The plaintiff also contended that the set-off was inadmissible, because Ressler did not set it up as a set-off before the justice; and because Ressler could not maintain a suit in his own name on the note under seal in favour of Hildebrand & Mayers, and by them endorsed in blank.</p> <p>The court below (Long, P. J.) submitted the testimony to the jury, with instructions that “ if it was a conditional transfer — that is if Hildebrand & Mayers were only to be paid if Ressler recovered from Groff, the set-off cannot prevail; if it was an absolute transfer, then it would be a subject of set-off.”</p> <p>The other matters were ruled against the plaintiff.</p> <p>The jury found a balance in favour of the defendant, upon which the court entered judgment.</p> <p>The plaintiff obtained this writ, and assigned here for error the ruling of the court below on the matters above stated.</p>

This was an action of ejectment by Samuel Rice against John Steacy and Gainer Pierce, in which the jury found the following special verdict:— “ That Martin Herr, of Strasburg .township, Lancaster county, being seised of a certain messuage or tenement and parcel of land, situate in the borough of Strasburg, containing 5 acres and 61 perches, strict measure, in October 1805 made his last will and testament, proved April 27, 1810, and letters testamentary issued to Martin Herr,…

<p>Error to the Common Pleas of 'Lycoming county.</p> <p>This was an action of ejectment brought by James Huling against Jacob Coder and Franklin S. Peterman, to recover the one undivided half of a tract of land in Lycoming county. On the 4th day of July, 1846, the plaintiff Huling and the defendant Coder entered into articles of copartnership, to be conducted at Hughe'sville, in Lycoming county, and to continue three years. At the time this partnership was formed Huling was embarrassed, and another was entered into dated the 3d of July, 1846, but proved by the subscribing witness to have been executed the latter end of the month, by which Huling engaged with Coder as a clerk, and leased to him the lot and storehouse, used by the concern, for three years, at $20 per year. ' On the 10th of July, 1848, Coder purchased the land in dispute from George M. Keim, for $3060.70, payable in instalments, viz. $720 on delivery of the deed, $780 on the 1st day of July, 1849,1850, 1851, respectively. The amount of the first payment was borrowed by Coder, and a note given, with a surety for the amount, and which remained unpaid at the time of trial. A saw-mill propelled by water-power was first erected on the premises, and after-wards also a steam saw-mill. In the year 1850 Coder sold an undivided half of the land to Peterman, who was his brother-in-law, and Peterman became from that time connected' with the lumbering operations at these mills. - Pie alleged that he had paid off the three instalments due on the land to Keim, and had taken a transfer to himself of the bonds and mortgage.</p> <p>Huling alleged that he was a partner in the store with Coder, and that the land was purchased by Coder for them jointly, and the improvements made by funds taken from the store, and work and materials paid for in goods, and that the instalments to Keim were paid out of the proceeds of lumber made at the mills. He claimed that though the deed was made to Coder, he was the equitable owner of the one undivided half of the premises, and that Coder held the legal title as a trustee for him to that extent.</p> <p>Coder & Peterman having assumed the entire control and management of the real estate and store, and having excluded Huling from all participation in either, denying the existence of any interest in him in either the real or personal property, he brought this ejectment to May Term, 1852, to recover a moiety of the land.</p> <p>After the commencement of this action a suit was commenced against Coder by a Philadelphia creditor for goods purchased for the store, upon which he confessed a judgment, and his interest in the land was levied on and sold to A. A. Winegardner for $4630, who shortly after assigned the sheriff’s deed to Peterman.</p> <p>The business at the store was carried on in the name of Jacob Coder, and the lumbering business, after the sale to Peterman, in the name of Coder & Peterman.</p> <p>On the trial in the court below the plaintiff relied, to prove the existence of the partnership, upon the article of agreement of the 4th of July, 1846, and the repeated declarations of Coder that they were partners, and that Huling had an interest in the land.</p> <p>The defendants, on the other hand, denied the existence of the partnership, and relied upon the agreement of the 3d of July, 1846, to prove that Huling was a mere clerk at a stipulated salary, and also upon the fact that he had previously failed in business, and was largely indebted, and upon his frequent declarations to various witnesses that he had no interest in the store, but was a mere clerk for Coder.</p> <p>The defendants also offered the judgments confessed by Coder, and the proceedings upon them under which the premises were sold by the sheriff, to show that if Huling had any title it was divested by that sale. This.was objected to and rejected by the court.</p> <p>They then offered the same judgment and proceedings, for the purpose of showing the amount paid by Coder for goods purchased for the Hughesville store. The court rejected this as irrelevant.</p> <p>The agreement between Coder & Peterman for the sale of the one-half of the land, -which was also objected by the plaintiff, and rejected by the court.</p> <p>The court below (Jordan, P. J.), after reciting and commenting upon the facts of the case, gave the following instructions to the jury: — •</p> <p>“You will then inquire, whether a partnership existed between the parties, commencing July 4,. 1846, and continued till after the purchase was made from Keim — and if there was, whether the purchase was made by Coder in his own name, but for the joint benefit of himself and Huling. If Coder and Pluling were partners in the store, Huling would have an interest in the goods furnished to the hands out of the store for work done upon the land, and if he had an interest in the land, and was equally interested in it, he would have an interest in the lumber manufactured from timber growing upon it, and would, in an action between him and Coder, be liable to account for his share of the expenses.</p> <p>“ The testimony in this case presents a singular state of facts, and shows how difficult it is, when men depart from that fair, upright rule, by which we should all be governed, to preserve consistency. We find conflicting declarations and acts of these parties ; and from all these facts and circumstances you will determine their rights.</p> <p>“ Huling, in this action of ejectment, asks to be put in possession of the one undivided half part of the two tracts of land; and if you are satisfied the purchase of them was made by Coder for himself and Huling, with money in which Huling had an interest, he will be entitled to your verdict. If you, however, from all the evidence, are satisfied that Coder made the purchase on his own account, and with his own money, the defendants will be entitled to your verdict. It does not follow, that because Coder and Huling entered into partnership in the mercantile business, they were also in the real estate, purchased during the existence of the partnership, by one of the partners.</p> <p>“ This is not a contest between Huling & Coder and their creditors, but between Huling and Coder.</p> <p>“ It is alleged by the defendants that no part of the money paid by Coder, or agreed to be paid by him, for the land, belonged to Huling. Whether it did or not is a question for you. If it was purchased with the means of Coder, and the purchase was made by him for himself, Huling ought not to recover.</p> <p>“ When a party alleges a trust, the proof lies on him who alleges it. If a man purchase land under an agreement that another shall be equally concerned, equity will consider him as holding for himself and the other, as tenants inmommon; and if a partner buy lands with the partnership funds, and take a deed in his own name, a resulting trust will accrue to the other partner.</p> <p>“A number of entries in the books have been referred to by the counsel, to which the court have not referred in their charge ; the books you will have out with you, and the letters, and it will be your duty to examine them carefully, and, from all the evidence, render such a verdict as you think is right between these parties, under the instructions you have received.</p> <p>“ The court instruct the jury that if they find for plaintiff they find one undivided half part of the land described in the writ of ejectment.”</p> <p>The jury found for the plaintiff, the one undivided half part of the land.</p> <p>The defendants sued out this writ and assigned the following errors: — ■</p> <p>1. The court erred in admitting the agreement of the 4th of July, 1846, between Huling and Coder, in evidence.</p> <p>2. The court erred in rejecting the evidence of Coder’s indebtedness to merchants in Philadelphia, for goods brought into the store; the judgment obtained on said indebtedness, and subsequent proceedings to the sale of the land.</p> <p>3. The court erred in rejecting the evidence of advancement made by Peterman, in payment of the purchase-money to Keim, and in the erection of the steam saw-mill, and other improvements, and for Coder on the amount of his indebtedness in the store.</p> <p>4. The court erred in rejecting the agreement of the 1st of January, 1850, between Peterman and Coder.</p> <p>5. The court erred in charging the jury in the following words : “ Huling, in this action of ejectment, asks to be put in possession of the undivided half part of these two tracts of land, and if you are satisfied that the purchase of them Avas made by Coder for himself and Huling, with money in which Huling had an interest, he would be entitled to your verdict.”</p> <p>6. The court erred in saying to the jury, that if they found for plaintiff, they should find one undivided half part of the land > described in the Avrit of ejectment.</p>

<p>In an issue directed to try whether a deed from a father to his son was delivered in the lifetime of the former, the will of the father, dated nearly two years before the deed, was rightly admitted in evidence, not to countervail the deed if properly delivered, but to show how the issue arose, and what was the relation of the parties to the estate of the father.</p> <p>Contracts made on Sunday are not void at common law.</p> <p>Our Act of 22d April, 1794, interdicts every kind of worldly employment on Sunday, and inflicts a penalty for its violation, but does not expressly annul or avoid the act done.</p> <p>An executory contract made on Sunday is void and cannot be enforced by action; but an executed contract consummated on Sunday, which needs not the aid of the court to enforce it, will not be avoided on that ground.</p> <p>Hence, a deed previously signed and acknowledged, but delivered on Sunday, will pass the title to the grantee.</p>

<p>Where there is only a line between the lands of parties, each has a right to insist upon a common partition fence along it.</p> <p>Where neither party insists upon such a common partition fence being made, it will be presumed that they mutually agree so to occupy their respective parts that it shall not be needed.</p> <p>Where one party insists upon the partition fence being made and makes his share of it, and the other, refusing to put up his part, is injured by the cattle of the other going upon his land in consequence of the fence not having been made, the injury being the result of his own negligence, he can not maintain an action for the damage thereby sustained.</p>

<p>Error to the Common Pleas of Northumberland county.</p> <p>■ This was an action of covenant commenced before a justice of the peace, in the name of Elizabeth Bright against Daniel Druckenmiller, and removed into the Court of Common Pleas by appeal. The cause was arbitrated, and an award in favour of the plaintiff, from which the defendant appealed. On the trial in the Common Pleas the following facts appeared.</p> <p>On the 10th day of February, 1858, John Young, agent of Elizabeth Bright, leased to the defendant a house and lot in Sun-bury for one year from the 1st April, 1853, at a rent of $55. The defendant took possession on the 30th March, 1853. After the award of arbitrators, the plaintiff, with the leave of the court, filed an amended declaration, setting forth the covenant as made with John Young-, agent of Elizabeth Bright, and to the filing of which exception was taken by the defendant as introducing a new cause of action subsequent to the award.</p> <p>On the trial, the defendant alleged that the premises were so much out of repair as to be untenantable, and offered to prove by the depositions of Lydia and M.ary Druckenmiller that Elizabeth Bright, the plaintiff, promised after he had taken possession of the house, to have the necessary repairs made at her own expense. The court rejected the depositions.</p> <p>The jury found for the plaintiff $62.25.</p> <p>The errors assigned were to the court permitting the plaintiff to file an amended natr., and to add the name of John Young, agent, and to the rejection of the depositions of Lydia and Mary Druckenmiller.</p>

<p>■ Railroad Companies are liable at common law for the damage, done by fire, occasioned by the negligent management of their locomotive engines ; and for the risk of such damage, no compensation can be allowed at the taking of the land for the construction of the road.</p> <p>The risk, of damage by five from locomotives, to buildings erected or to be erected on land over which the railroad passes, is not the subject of compensation and assessment by the viewers appointed to assess “the damages sustained or that may be sustained,” by the owner of the land.</p> <p>For injury accruing to an individual by the proper and ordinary use of a railroad, no damages can be recovered, either under a report of viewers as prospective damages, or by a common law action after the injury occurs.</p>

This was a scire facias by J. 0. Crawford against Plunkett’s Creek township to revive a judgment which had been entered on a certified record from the Common Pleas of Lycoming county. The parties agreed upon the following case stated:— “ On the 6th day of April, 1846, the plaintiff in this case, in due course of law, -recovered a judgment against Plunkett’s Creek township, then entirely in Lycoming county, for $380.69, with the costs of suit.

The plaintiff in this action was a supervisor of the township of White Deer, for the year 1848-9, and- this action was brought against the township to recover the sum of $176.33, the costs.and expenses incurred by him in prosecuting an individual for obstructing a highway in that township. .

This was an action of slander by Charles Stees against Dr. George S. Kemble. John Darr was a hired man in the employ of the plaintiff, and the defendant alleged that he attended Darr’s family professionally at the instance of Stees; and that after-wards, in settling with Darr, Stees had deducted the amount of it from Darr’s wages. Stees denied all these allegations, and refused to pay the bill, and Kemble brought a suit for its recovery before a justice of the peace.

<p>Error to the Common Pleas of Snyder county.</p> <p>This was an amicable action, in which Barbara German was plaintiff, and Peter German and Israel German, executors of the last will and testament of John German, deceased, were defendants. The parties agreed upon the following case stated, with liberty to either party to sue out a writ of error:—</p> <p>“ It is hereby agreed that the said plaintiff is the widow of the "said John German, late of Perry townshijN That the said John German died on or about the 8th day of October last, having previously thereto, viz., on the 8d day of March, 1855, made his last will and testament in writing, which said last will was duly proven before James W. Pennington, register of wills in and for the county of Union (of which the said Perry t'ownship then constituted a part), on the 27th day of October last, which said last will is made part of this case stated. That said last will contains, among other things, the following provision, viz., 4 and concerning such worldly estate wherewith it hath pleased God to bless me in this world, I will that my wife Barbara shall have the sole control over the farm or plantation on which I now live, and also another tract of land, adjoining lands of Jacob Martin and Philip Schnee, during her natural life or widowhood, in such a manner that she can rent the same to one of my sons, or to any person she may choose, and the income thereof to be at her disposal.’</p> <p>“ And also the following other clause, viz. 4 As to my personal property, I will that my wife Barbara shall have privilege to choose and keep during her natural life or widowhood, all such personal property as she thinks proper, and the remainder (that is, such property as my wife Barbara may not choose to keep) shall, by my hereinafter named executors, be sold at public sale, &c.’</p> <p>“ And of his said last will appointed the said defendants to be the executors. The said will also contains the following clause: ‘ After the death both of myself and my said wife Barbara, I will that my hereinafter named executors shall sell at-public vendue or outcry, all such property as may be then left, both real and personal, after giving due and timely notice thereof, and divide the proceeds thereof amongst all my children or their issue, share and share alike.’</p> <p>“ That in pursuance of the said last will, the said Barbara, widow as aforesaid, chose to retain certain articles of personal property, which were valued at the sum of twenty-two hundred and ninety-eight dollars and forty-seven cents, as per list of said articles, and appraisement thereof filed, in the Register’s Office of Union county appears, a copy whereof is hereby made part of this case stated. That said defendants here were advised that the said Barbara is not entitled to retain the said property under the provisions of the said will without giving bail for the return of the same after her death, and that she is not entitled to any part of the same, and they being unable to decide the same themselves, therefore submit the following question to the court and pray their decision of the same, whether the said Barbara, under the provisions of the said will and her choice as aforesaid, is, or is not entitled to the said personal property chosen by her without giving bail for the same, and if not entitled to retain the whole of the said property so chosen; then whether she is entitled to any part thereof, and what part. If the court find that she is entitled to the whole of the said property, then judgment to be entered for plaintiff for $2298.47, to be released' by plaintiff upon the said chosen articles being given over to her by said defendants and payment of costs. If the court find her entitled to some of the said property, but not all, then judgment for plaintiff for the appraised value thereof, to be released upon the same terms. If the court find she is not entitled to any part of the said property then judgment to be entered generally for defendants.” ■</p> <p>Among the articles chosen by the widow were the following: — ■</p> <p>1 -lot threshed wheat ....... $131.00</p> <p>1 lot of wheat in the sheaf ...... 220.00</p> <p>Cash for wheat sold ....... 221.09</p> <p>Promissory note and interest against Peter German . 98.04</p> <p>$670.18</p> <p>The court below (Wilson, P. J.) rendered a judgment for the plaintiff for $1628.34J, being the appraised value of the articles chosen by her after deducting therefrom $670.13, the value of the articles above stated. This judgment to be released upon the property being delivered to the widow by the executors, she giving security as provided in Act of 24th February, 1884, § 49, to secure the interest of the parties in remainder.</p> <p>Barbara German, the plaintiff, sued out this writ of error.</p> <p>The errors assigned were, to the refusal to enter judgment for the whole amount of the appraisement, and also in requiring the plaintiff to give security for the property.</p>

<p>The limitation of twenty days allowed for appeals in certain cases has no application to appeals from decrees of the Orphans’ Court adjusting an administration account.</p> <p>A specialty differs from a simple contract, in this, that the former needs no consideration to support it, where none was contracted for.</p> <p>A voluntary bond given by a father to a trustee for the use of his minor child, is valid, and the executors paying it after his death are entitled to credit for the amount in their account, although the father in a will subsequently executed, made a devise to the child in lieu of the bond, which the guardian of the child refused to accept.</p> <p>Where the bond was made payable “ ten years after date,” whether the father should then be living or dead, there is no ground for holding it to be a donatio mortis causa.</p>

William Hendershot died in October, 1854, and letters of administration on his estate were granted to John D. Kunyan, the appellant. An appraisement was had, and, at the instance of the widow, property to the amount of $300 was set apart for her, and returned to and’ approved by the Orphans’ Court, on the 4th December, 1854.

<p>Error to the Common Pleas of Orawford county.</p> <p>This was an action of ejectment by Peter Brown against Samuel Shontz for 130 acres of land in Crawford county. Jacob Shontz, the father of the defendant, had been the owner of 428 acres of land in Sadsbury township, embracing the land in controversy. Several years prior to 1838 he conveyed to his sons, Christian and John, 100 acres each, off of the eastern end of the tract. And on the 21st day of September, 1838, he and his wife, by an instrument of writing, conveyed the balance to his two sons, Jacob and Samuel, 100 acres to the former, and the balance to the latter. He also in the same instrument transferred to them his live stock and farming utensils. Jacob and Samuel Shontz, the sons, in the same instrument bound themselves to well and sufficiently maintain, support, and keep the said Jacob and Rebecca, their father and mother, during their natural lives, and the life of the survivor of them, and provide them with good and sufficient meat, drink, apparel, lodging, and attendance in sickness and in health, and also to pay all debts due now and owing by the said Jacob Shontz.” And it further provided that the land- “ is to be held in security to Jacob Shontz and Rebecca, his wife, for the performance of the within agreement.” In pursuance of this agreement, Jacob and Samuel took possession of their respective parts of the tract, and a deed was made to Jacob for his part on the 31st day of December, 1838, and recorded on the 8th February, 1841. No conveyance was made to Samuel by his father and mother, but he remained in possession of the land under the agreement, it being assessed in his name, he paying the taxes, and his father and mother living with, and being maintained by Mm until they both died in 1847.</p> <p>The plaintiff alleged that the sale made to Jacob and Samuel in 1838, was fraudulent and void; and to show the indebtedness of the father at the time of the sale, they gave in evidence a conveyance from H. J. Huidekoper to Jacob Shontz the elder and James McConnell of 200 acres of land, in trust for the heirs of George McConnell, of which intestate they were administrators. Under an order of Orphans’ Court, these administrators, on the 10th of April, 1832, sold the land to David Shontz, a son of Jacob, for $500. The sale was confirmed on the 14th September, 1832, and a deed made to David Shontz by the administrators on the 25th April, 1834. This deed contained a covenant of special warranty, and was signed by the administrators with their own names, without designating themselves as administrators. This same land was sold at treasurer’s sale on the 10th of June, 1834, to II. J. Huidekoper for the taxes of 1832, assessed in the name of George McConnell's heirs. On the 13th of May, 1839, Jacob Shontz, the elder, called on Huidekoper, and procured a transfer of this tract, and another of 100 acres, purchased at the same sale by Huidekoper, to himself, and gave his judgment bond for $300 to Huidekoper for the consideration.</p> <p>On the 3d of June, 1823, James McConnell and Thomas McConnell entered into an article of agreement with John Brown, for the sale to him of 280 acres of land in Crawford county, the estate of their deceased father, Hugh McConnell, and at the same time gave to him a bond in the penal sum of $2000, with Jacob Shontz as their surety. The condition of this bond was that the McConnells should on or before the 3d day of June, 1824, at the cost and charges of Brown, make the necessary deeds for conveying a good, sure, and indefeasible estate of inheritance, in fee simple, in the same 200 acres of land to Brown, and in the mean time permit him quietly and peaceably to hold and enjoy the same. James and John McConnell and their wives on the 16th August, 1825, executed a deed to John Brown in pursuance of the bond and agreement. Eighty acres of this same land had been devised by Hugh McConnell to the heirs of George McConnell, deceased. Under the provisions of an Act of Assembly passed for the purpose, James McConnell and Jacob Shontz, as administrators of George McConnell, conveyed these 80 acres on the 11th August, 1825, to Brown, for the consideration of $300. Brown went into possession, and he, and those claiming under him, have held it ever since, except the 80 acres, which were recovered in ejectment in 1846 by the heirs of George McConnell. Jacob Shontz, upon notice, appeared and assisted in defending that case.</p> <p>John McMiehael and George W. Richards were sons-in-law of Jacob Shontz, and after his decease, in 1847, took out letters of administration on his estate. In 1851 Huidekoper brought suit on the bond given him by Jacob Shontz in 1839, and the administrators confessed judgment for $212, the balance of debt and interest. A fi. fa. was issued on this judgment, and the land in dispute levied upon, extended, a refusal by the administrators to accept at the rental, and a ven. exp. issued to sell the same, which, upon application of Samuel Shontz, was set aside by the court, and the administrators directed to apply for an order to sell real estate for the payment of the debts. The petition set forth no debt except the one due Huidekoper. On the 5th of April, 1853, the land in dispute was sold under an order of the Orphans’ Court to Peter Brown, the plaintiff, for the sum of $66. Samuel Shontz caused notice of his title to be given at the sale.</p> <p>Upon the trial in the court below, the plaintiff contended:</p> <p>That the deed of Samuel Shontz and wife of 21st September, ■1838, to their sons, Jacob and Samuel Shontz, was a voluntary conveyance, and as such, fraudulent and void against subsequent as well as prior creditors.</p> <p>That the title bond of the 3d June, 1823, given by Thomas and James McConnell, with Jacob Shontz as their surety, to John Brown, was a subsisting debt against Jacob Shontz ; and that his liability thereon accrued upon the eviction of Brown from the 80 acres, part of the land designated in the bond, in 1846.</p> <p>That on the covenants contained in the deed of James McConnell and Jacob Shontz, Sr., to David Shontz, of the 25th April, 1834, they were liable for the taxes assessed upon the land in 1832 for which it was sold in 1834; and that when he purchased it, and took a transfer of the title in 1839 to himself, and gave his bond to Huidekoper, it was but the continuance of a liability which had existed previous to the deed to his sons.</p> <p>That in view of these subsisting debts, the reservations in the deed for the benefit of himself and family were fraudulent in law, and rendered the conveyance null and void as to creditors.</p> <p>That the decree of the Orphans’ Court, awarding and confirming the sale, was conclusive of the title.</p> <p>The defendant maintained: That the deed of the 21st of September, 1838, was not a voluntary conveyance, but made on a good and sufficient consideration.</p> <p>That no debt was shown to exist against Jacob Shontz, prior to the sale to Jacob and Samuel in 1838.</p> <p>That the bond given to Brown in 1823 was satisfied by the deed made by the McConnells in 1825, and accepted by Brown, and discharged Samuel Shontz as security in the same.</p> <p>That Jacob Shontz was not liable for the taxes of 1832, of the land sold to David Shontz, and that the consideration-money of his purchase in 1839 from Huidekoper created no debt which Jacob and Samuel, the sons, were liable to pay, or which would avoid the conveyance previously made to them by their father.</p> <p>That a deed for a valuable consideration is presumed to be bona fide, and cannot be avoided without proof of collusion and fraud.</p> <p>The court below (McCalmont, P. J.) sustained the positions of the plaintiff, without giving any distinct and binding direction to the jury as to whether the conveyance was voluntary or otherwise.</p> <p>The jury found for the plaintiff.</p> <p>The answers to numerous points presented on both sides, and the general charge of the court, all of which are very voluminous, formed the subject-matter of the errors assigned.</p>

This was an ejectment brought by Catharine Meanor and others, heirs at law of John Hamilton, the elder, deceased, against John Hamilton, the younger, and others, to recover the five undivided… Held: and the sale was in consequence void. Because as administrator, either with or without funds in his hands applicable to this debt, he stood in such a relation of trust and confidence to the estate as precluded him from purchasing it on his own account.

This was an action of assumpsit brought by Samuel Stafford against Cyrus A. Stafford. The plaintiff is the father of the defendant. In 1847, the plaintiff was the owner of a farm in Erie county containing 109 acres, and on the 13th of January of that year, he conveyed it by deed, duly executed by himself and wife, to the defendant.

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action of ejectment brought by Simon Drum against David Painter. On the 3d December, 1834, Philip Drum, the father of the plaintiff, and Christina his wife, executed a conveyance to defendant for the land in controversy. In the deed the grantee was bound to pay the creditors of the grantor all debts due to them up- to the date of the deed,, and to provide for said grantor and wife during their lifetime'. The deed also gave to Painter the rights, goods, and chattels of Philip Drum. The grantor died on 10th June, 1845, and -Richard Nanning was appointed his administrator. The plaintiff obtained a judgment against the administrator, Nanning, before a justice of the peace, on.31st O-ctober, 1845, for $99.99 and costs. Transcript was filed, and the judgment assigned to John Eagle. A fi'. fa. was issued, and the interest of Philip Drum in his lifetime in the land in question levied upon. An inquisition was held, and the property extended; afterwards the inquisition was set aside, and, at the instance of the defendant, a rule was obtained to show cause why the judgment should not be opened and execution set aside, on the ground that no sci. fa. had issued to the widow and heirs. This rule was discharged in February, 1851. In May, 1851, the land was condemned, and in August sold under a ven. ex. by the sheriff to Simon Drum, the plaintiff, and a deed acknowledged to him.</p> <p>On the trial, it was proposed to prove what family Philip Drum had at the execution of the deed to Painter, for the purpose of showing that it was an unusual transaction, and as evidence that the deed was fraudulent: which was objected to by defendant, and rejected by the court, and an exception sealed.</p> <p>It was further proposed to prove on the part of the plaintiff,, that the deed from Drum to Painter was made with a view and for the purpose of defrauding his creditors; and that the plaintiff was, at the time of the execution of the said deed, a creditor of the said grantor, and that the deed was made for the purpose of defrauding him. That plaintiff was a creditor, by a contract which entitled him annually to payments during the life of said Philip Drum. This was objected to by defendant.</p> <p>The court rejected the evidence, and decided that the sheriff’s deed being on a judgment, without any notice to the widow and heirs, conferred no title on the plaintiff: and, further, that the debt upon which the judgment was obtained, was a liability of Philip Drum at the time he made the deed to Painter, and was provided for by that deed; and being thus provided for, Painter was liable to pay it. And for these reasons the plaintiff was not entitled to recover.</p> <p>These rulings of the court were the errors assigned.</p>

<p>Error to the Common Pleas of Cambria county.</p> <p>Henry Glass, the defendant in the court below and also in this court, was the owner of a tract of land in Cambria county, a small piece of which he had agreed to sell or exchange with Enos McMullin, who owned an adjoining tract of. land. Subsequently, on the 23d January, 1851, they made a further contract, embracing the piece of land which had been surveyed to Enos McMullin ■ previously when they entered into the article of agreement upon which the present action was based. This was a family arrangement, at which John Glass, the father of Henry Glass, was present;- he- was also the uncle of Enos McMullin, who was the cousin of Henry Glass. By this article of agreement, under the hands and seals of the parties, Henry Glass' acknowledged to have received from Enos McMullin the sum of $350, and in consideration of which payment Henry Glass granted, bargained, and sold unto the said Enos McMullin the land therein described. The land was afterwards surveyed and found to contain about 49 acres, of which McMullin took possession, made some improvements on it, and Henry Glass directing some of his hands to cut timber upon this land, McMullin entered the present action of trespass qu. el. freg., to which the defendant pleaded not guilty and liberum tenementum, and upon these issues the case was tried.</p> <p>Upon the trial of the cause the defendant offered M. Leavy, Esq., who drew the article of agreement, to prove that no money was paid, and that none was to be paid, but that the true consideration was that John Glass should execute a will in favour of Henry Glass, and by which he agreed to devise the farm upon which he resided to Henry Glass, subject to a legacy to his sister, of $200. He further testified that he drew the will in accordance with these terms, which was executed by John Glass, and, which remained unrevoked and uneancelled in his possession.</p> <p>To the reception of this evidence the plaintiff objected, upon the ground that it was incompetent for the defendant to contradict his admission under seal of the receipt of the $350, which objection was overruled by the court below.</p> <p>The court below (Taylor, P. J.) ruled pro forma that the consideration, as proved by Leavy, was a valuable one, reserving the point. The jury found in favour of plaintiff, and assessed damages at $1.50.</p> <p>On a subsequent day judgment was entered for the defendant non obstante veredicto, upon the ground that a court of equity would not decree a specific performance of the contract for want of mutuality, and being voluntary on the part of Henry Glass.</p> <p>This ruling of the court, and the reception of the testimony of Leavy, was assigned for error.</p>

<p>A purchaser of land at treasurer's sale, may after the expiration of the two years consent to receive the redemption-money, and if he receives it as such, the transaction will he a redemption of the land, and not a purchase of it.</p> <p>Whether it is a purchase or a redemption is a question of fact for the jury.</p> <p>A party who is hound hy agreement with the owner of the land, to pay the taxes for which it was sold, would not he permitted even after the two years to defeat the title'of the owner, hy purchasing it hack at the price of a redemption.</p>

This was an. action of ejectment by Richard S. Coxe against Lyman Gibson and Samuel G. Hathaway, for a tract of land in Shippen township, McKean county, containing 990 acres. The plaintiff traced a regular chain of title from the Commonwealth to himself, and rested.

<p>Error to the Common Pleas of Warren county.</p> <p>This was a feigned issued to try the right of Roswell Reed and others, to the money in court arising from the sheriff’s sale of certain tracts of land in Warren county, sold on five ven. exp.’s. The narr. was in assumpsit, with averment of plaintiff’s right to the money. The defendant, Russell, the treasurer of the county, denied this averment and joined issue thereon.</p> <p>The plaintiffs below bought certain tracts of land at treasurer’s sale, and gave their bonds for the surplus. « These bonds were entered up, executions had upon the judgments, and the money made brought into court. The plaintiffs were the defendants in the executions, obligors in the bonds, and purchasers at treasurer’s sale. They contended that the title to the land was in them at the time of the sale, and therefore they were entitled to the surplus money arising from the bonds.</p> <p>To show title, the plaintiffs gave in. evidence the deed of the treasurer of Yenango county (the production of the assessments being waived) to the commissioners of that county,' dated 31st December, 1816, for five tracts in Warren county, numbered 5228, 5230, 5231, 5232, and 5223; and the deed of the commissioners of Warren county, dated 9th March, 1825, to Perkins Nichols for a number of tracts, including the above named; and his deed, dated 3d November, 1828, to Roswell Reed for the same tracts; and the last will of Roswell Reed, proved 25th June, 1839, by which the lands were devised to the present plaintiffs. The tracts were sold at treasurer’s sale by Robert R. Russel, treasurer in 1852, to the present plaintiffs, who gave the surplus bonds which were entered up for the use of S. P. Johnston. Fi. fa.’s were issued upon these judgments, the tracts were levied upon and sold to Roswell Reed and others for $2900. The money was brought into court, and is the subject of this issue.</p> <p>The defendant claimed for Johnston the money, alleging title in him at the time of the treasurer’s sale in 1852. He exhibited a patent to George Mead for the five tracts, dated 14th June, 1798, together with the warrants and surveys; a deed from George Mead to George Taylor, and from Taylor to Plumstead, dated 27th May, 1800, and a deed from the heirs of the latter to Samuel P. Johnston, dated the 11th November, 1848, each of which deeds embraces the tracts of land for which the surplus bonds were given.</p> <p>' By the Act of 12th March, 1800, it was provided that the counties of Crawford, Erie, Mercer, Venango, and Warren should form one county under the name of Crawford county. By the Act of 1st April, 1805, the provisional county of Venango was organized, and Warren annexed to it. By the Act of 6th March, 1819, the provisional county of Warren was organized for judicial purposes, and the commissioners of Warren were authorized to call on the commissioners of Venango for the purpose of examining, liquidating, and receiving such balances as might be due to Warren, and reserved for the use of the same under the Act of 12th March, 1800.</p> <p>The Act of 1820, “ a supplement” to the act just mentioned, provided that it should be the duty of the commissioners of Warren county to order the collection and payment of all county and road taxes due and assessed on seated property and unseated lands, and of all taxes due said county previous to its organization for judicial purposes, which might remain unpaid by the several collectors; and to collect said taxes on unseated lands as they were collected in other counties; and to keep an account of all moneys paid into the treasury.</p> <p>The Act of 10 th May, 1852, enacted that the act entitled ‘A supplement to the act entitled An act to organize the provisional county of Warren for judicial purposes,’ ” passed the 18th day of January, 1820, shall be so construed as to authorize the sale, by the commissioners of Warren county, of lands lying within the county of Warren, which had been purchased by the commissioners of Venango, and which were unredeemed; and that the sale of said lands by the commissioners of Warren county is hereby confirmed, and made valid to the purchasers: Provided, That this act shall not affect any action now pending, nor any owner of lands who may have redeemed, or attempted so to do, within twenty-one years from the time of the treasurer’s sale to the county of Venango.”</p> <p>The questions raised upon the trial sufficiently appear in the points presented to the court (McOalmont, P. J.), the answers to which formed the assignments of error as follows:—</p> <p>The court erred, 1. In answering the plaintiff’s first point in. the affirmative, viz., That the treasurer’s deed to the commissioners of Venango county being unredeemed for a period of five years, divested the title under which the defendant claims.</p> <p>2. In answering plaintiffs’ fourth point in the affirmative, viz., That the Act of January 18, 1820, authorized the commissioners of Warren to sell and thereby collect the taxes due upon land within the limits of the county of Warren, which vest in plaintiffs a good title.</p> <p>3. In answering the plaintiffs’ fifth point in the affirmative, viz., That the Act of May 6, 1852, confirms and makes valid the title in the plaintiffs.</p> <p>4. In answering defendant’s first point in the negative, viz., The sale of unseated lands for taxes made to the commissioners of the county by the treasurer for more than a sum sufficient to cover the taxes in arrears, and the costs of the sale, passes no title whatever, and hence the sales and deeds in evidence from John McOalmont, treasurer of Venango county, to Alexander McOalmont, John Wilson, and Abraham Selders, commissioners of said county, for tracts No. 5223, 5228, 5230, and 5232, and dated December 31, 1816, did not divest or pass the title of the former owner.</p> <p>5. In answering the defendant’s second point in the negative, viz., That even if the deeds referred to in the preceding points divested the title of the former owner, the deed in evidence from Robert Falconer and others, commissioners of Warren county, to Perkins Nichols, and dated March 9,1825, did not pass that title..</p> <p>6. In answering the defendant’s third point in the negative, viz., That the sale to Nichols as recited in the said deed of March 9, 1825, was irregular and defective even if the grantors therein named had had authority to make it, and without other evidence, conferred no title whatever, and the plaintiffs in this issue can have no right to the money in court by virtue of it.</p> <p>7. In answering the defendant’s fourth point in the negative, viz., That the plaintiffs are estopped from claiming the money in court arising from the sale on their own bonds and judgments thereon by them confessed.</p> <p>8. In admitting in evidence the deed from the treasurer of Venango county to Alexander, McOalmont et al., commissioners of Venango county, for tract No. 5228, sold for more than the arrearages of taxes and the costs accrued.</p> <p>9. In admitting in evidence the deed from the treasurer of Venango county to Alexander McOalmont et al., commissioners of Venango county, for tract No. 5232, sold for $53.33, being a sum much greater than the arrearage of taxes and the cost accrued.</p> <p>10. In admitting in evidence the deed from Robert Falconer et al., styling themselves therein commissioners of Warren county, to Perkins Nichols for the said several tracts of land.</p>

Ejectment by Jacob Miltenberger and Rachel his wife, late Rachel Croyle, and Susanna McCracken, late Susanna Croyle, against John Croyle and others. The plaintiffs and one of the defendants are the heirs at law of Mary Croyle, who was intermarried with Philip Croyle, and in whom the legal title to the land in controversy was vested.

This was an action of ejectment brought by Andrew Banks against Henry Ammon. The facts of the case and the points raised upon the trial sufficiently appear in the opinion of this court. -, for plaintiff in error.

This was an action of ejectment brought by Russell and William Hewett against Mary Reynolds, widow of John Reynolds, deceased, and Sarah, Elizabeth, and Nancy J. Reynolds, minor children of the said John Reynolds, and William Bracken, their guardian, and Horace Goodrich, tenant, to recover sixty-two acres of land in Waterford township.

Ejectment for 67 acres of land. In 3.838 Jeremiah Smith, the father of the plaintiff in error, was in possession of and claimed the land… Held: and the land was condemned. Under a ven. ex. the land was sold to James Smith, defendant in error, for $440, $150 of which was paid at the time of sale, and the balance in about six months afterwards. • The sheriff then made and acknowledged his deed to James • Smith. ■ Afterwards Jeremiah Smith made a quit claim deed of the land in…

<p>Error to the Common Pleas of Indiana county.</p> <p>This was an action of ejectment brought by A. Wier et al. v. John Dougherty. The facts of the case plainly appear in the opinion of this court.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action on the case by David Sampson against David A. Grier, to recover damages for personal injuries sustained by him in consequence of being thrown into an open vault, alleged to be on premises owned by defendant. The property was situated in the village of Temperanceville, and contained 120 feet fronting on the south side of the Pittsburgh and Steubenville Turnpike Road. Several houses had been erected on this lot, the front walls coming to the line of the street. In front of them'and extending eight feet into the road, were vaults, communicating with the basement of the buildings. This was covered over with plank, .and contained openings to admit fuel, &o. In 1849 the title to this property was vested in a man of the name of Smith, and was levied and sold as his property by the sheriff to the defendant, Grier. After the sheriff’s sale the defendant alleged that Smith and his tenants remained under a parol agreement, and that a reconveyance was to be made of the property as soon as Smith would refund to Grier the amount of the purchase-money and the amount of Grier’s debt against Smith. Under this arrangement Smith remained until 1853, when the tenements upon the lot were consumed by fire. An insurance was in existence, the amount of which the defendant Grier received, which reimbursed him for the money paid on the purchase and his debts. The fire had consumed the plank which covered the vault in the street or road, and it remained open.</p> <p>Grier resided in Allegheny City, and the premises remained vacant. On the 14th March, 1854, the plaintiff returning from market in a buggy met a coal team, loaded, opposite the premises, and passing to the left hand side, his horse took fright and leaped into the vault, dragging the buggy, in which were the plaintiff and his daughter, after hipi; and for the injuries thereby sustained this suit was brought.</p> <p>The plaintiff, for the purpose of proving that Grier was the owner of the premises, called the insurance agent to prove that Grier claimed the insurance and the amount of it was paid to him. The evidence was objected to, but admitted by the court.</p> <p>The plaintiff also proved, under objection and exception by the defendant, that there was a hole or well in the vault, near where the plaintiff was thrown in. John McCloskey, a stockholder in the Pittsburgh and Steubenville Turnpike Company, was objected to on the ground of interest, but the objection was overruled and the witness sworn.</p> <p>The defendant offered to prove the condition of the road at some distance from the place where the injury occurred, and that the road in those places was more dangerous than at the locus in quo, and that the same place was more dangerous before the vaults were made than at the time of the injury.</p> <p>This evidence was objected to by the plaintiff and rejected.</p> <p>The defendant then offered to prove the parol agreement before stated, between Grier and Smith. The court rejected it, because it did not show the title in Smith.</p> <p>He also offered to prove that Smith, after the fire and at the time of the accident, had such possession of the premises as the nature of the case admitted of, to wit, exercising acts of ownership by the removal of parts of the ruins, and payment of taxes, &c.</p> <p>Per Quriam. — You may show that the property was assessed in the name of Smith, and that he paid the taxes so assessed, and the offer will be received and evidence admitted. Otherwise it is rejected.</p> <p>The defendant submitted, among others, the following points:</p> <p>If the jury believe from the evidence that plaintiff attempted to pass, a wagon meeting them (at the time of the accident) on the left hand side, when there was room for conveniently and safely passing to the right, this is such a disregard of the customs and law regulating the passing of vehicles meeting each other on public roads as amounts to a want of ordinary care, and the plaintiff cannot recover.</p> <p>If the jury believe that the hole into which the plaintiff fell was in the turnpike road, that the same was not made by the defendant: that the lots of ground which the plaintiff' alleges belong to the defendant, are bounded by and extend no farther than the south side of the turnpike road: that the wall or bank over which plaintiff fell was in the turnpike, some six to ten feet in front of and outside of said lots, and that the hole into which he fell was between said lots and said wall, then the plaintiff cannot recover.</p> <p>That if this hole in the road was dug, and this wall erected by Wm. S. Smith, the former owner of the lots, such digging and erection was a trespass on the rights and premises of the Turnpike Company. That by the purchase at sheriff’s sale by the defendant, of the title of the said Smith, no right, title, interest, or claims of any kind whatsoever passed to the ground occupied by the same, but the same and every part thereof in front of the line of the said lots, belonged to the said turnpike road, and the defendant is not responsible for any accident which may have occurred by reason of said nuisance.</p> <p>That if Smith, the former owner of the lots, put a public nuisance on the highway in front of said lots, neither this nuisance nor its consequences passed to the sheriff’s vendee: nor is he liable for the injuries arising from the wrongful acts committed by Ur. Smith, or the gross neglect of duty by the turnpike company.</p> <p>That the said defendant had no right to dig down or fill up any part of said turnpike road, nor was it any part of his duty to fill up this hole in the road.</p> <p>That there is no evidence in the case showing any negligences or the commission of any unlawful act by the defendant, which in law would render him responsible for the injury sustained by the plaintiff.</p> <p>If, as alleged by the plaintiff, the road on the left side was unsafe, and this was known to the plaintiff at the time, and instead of keeping to the right of the approaching teams, as law and custom direct (or waiting 'till they passed), he took the left hand and dangerous side, and drove on at a rapid pace, such conduct was reckless and imprudent, and the defendant is not liable for the consequences.</p> <p>The court below (Williams, J.), after reciting the facts, charged the jury as follows :—</p> <p>“ There can be no question that a vault or. cellar one hundred and twenty feet long and eight or ten feet deep, situate as this was on or in a public street or turnpike road passing through the village of Temperanceville, was a public nuisance. But this area or vault was not excavated or made by the defendant, but by Smith, the former owner — and it is therefore contended that the defendant is not liable for the nuisance. If this be so, there can be no recovery against the defendant, in this action: but is the law as contended for by defendants counsel ? There is no evidence that the vault, when covered with plank as it was when defendant purchased the property, was dangerous to persons passing along the road. There is no evidence that it became dangerous until after the destruction of the buildings by fire. The defendant was then the owner of the premises; as such owners are bound to take proper care thereof, so as to prevent the consequences of a public nuisance, the defendant is liable. He (the defendant) is liable for any injury occasioned by his nonfeasance or negligence in leaving open or unprotected, a deep vault in front of his property, and used in connexion therewith, whether the vault be on or within the line of the public street or road.</p> <p>“ It is alleged in defence that the area was excavated and the vault made before the defendant became possessor of the property. 'The defendant’s liability for the nuisance, after the destruction of the buildings and the covering of the vault, is precisely the same as if he had actually constructed the vault, for the use of the houses: Irwin v. Sprigg, 6 Grill 200; Campbell v. Ilardinghame, 8 Campbell 898.</p> <p>“Nor is it any valid excuse that the defendant never actually lived on the premises.</p> <p>“ The evidence, if believed, shows that the defendant was aware of the destruction of the buildings by fire, that he visited the premises shortly after their destruction in company with the agent of the insurance company in which the buildings were insured, and that he saw or might have seen their condition. If the defendant knew that the premises were destroyed by fire, it was his duty to look to their condition after the fire and ascertain whether the property was in such a situation as to be dangerous and a public nuisance, and he is liable if he neglected his duty in this respect. Every owner of property is bound to take proper care of it, and to see that its condition is not such as to become a nuisance, and if he fails in duty in this respect, he is liable for the consequences. He cannot set up his ignorance arising from negligence as an excuse for the omission of his duty.</p> <p>“ The defendant’s liability, under the circumstances, for the nuisance complained of, is the same as if he had actually erected the houses and made the vault in front thereof, as was done by Smith, the former owner. It is immaterial that it is not shown that defendant was in the possession of the property before the fire. After the destruction of the buildings the property was left vacant and the possession followed the legal title. That was in the defendant, and he is therefore liable if he suffered the premises to become a nuisance. The right of the plaintiff to recover for the injury he received'in being thrown into the vault, and defendant’s liability, therefore, depends upon a few plain and well settled principles of law.</p> <p>“ 1st. The plaintiff is not entitled to recover if the injury was the consequence of his own want of ordinary care, notwithstanding the defendant may have been guilty of gross negligence in leaving the coal vault in front of his property open and exposed, and a nuisance to 'those travelling along the turnpike road.</p> <p>“ 2d. If the injury was occasioned by the mutual negligence of the plaintiff in driving his buggy, and of defendant in leaving the vault exposed, the plaintiff is not entitled to recover.</p> <p>“ When the injury is shown to have been occasioned by mutual negligence, the injured party cannot recover damages. The law in such a case regards the injury as the result of want of proper care on the part of the person injured, and not as the result of the carelessness or default of the other party.</p> <p>“ 3d. But in case of an injury occasioned by falling or being thrown into a dangerous opening or vault, on a public street or road, it is not incumbent on the plaintiff to prove the exercise of ordinary care on his part, but the proof of the want of ordinary care on the part of the plaintiff lies on the defendant. The burthen of proof of want of ordinary care rests upon the party alleging it.</p> <p>“ The defendant alleges that the accident happened in consequence of plaintiff’s negligence, and he is bound to prove it. The jury will determine from all the evidence in the case, whether the plaintiff failed to exercise ordinary care, and was guilty of negligence — and whether the accident was owing to want of ordinary care on plaintiff’s part.</p> <p>“ If the plaintiff exercised ordinary care in driving along the road at the time of the accident, he is entitled to damages for the injury he received.</p> <p>“ It will be the duty of the jury to apply these principles to the facts of this case, in determining the question of defendant’s liability. Whether the injury was occasioned by the plaintiff’s negligence or want of ordinary care in driving his horse and buggy at the time of the accident, or whether it was the result of mutual negligence on the part of plaintiff and defendant, are questions of fact for the determination of the jury, under all the evidence in the case.</p> <p>“ By the law and the custom of the land, it is the duty of persons travelling in wagons or other vehicles, meeting each other on the public road, to pass on the right hand side of the road. But this is not an inflexible rule, it admits of exceptions. Where one on horseback, or in a light buggy, meets a loaded wagon, and it would be difficult or inconvenient for the loaded team to turn out and pass to the right, it is altogether proper and usual for the person on horseback or.in a light wagon to pass to'the left hand side of the road. The law or custom which requires persons meeting on a public road to pass to the right, applies to, and is intended' to regulate the duty and conduct of, those travelling on the road as between themselves.</p> <p>“ The plaintiff and the public had a right of way over any and every part of the road — in the middle, on the right or left hand side of the travelled part thereof — and therefore I cannot charge yon as requested by defendant, that plaintiff’s taking the left hand side of the coal teams, amounts to a'want of ordinary care.</p> <p>“Whether the plaintiff failed to exercise ordinary care, and was guilty of negligence in passing to the left of the coal teams, and whether such want of ordinary care was the cause of the injury complained of, is a question of fact for the determination of the jury.</p> <p>“ If the plaintiff’s horse became frightened and jumped into the vault, without any want of ordinary care or skill on the part of the plaintiff, and the injury was occasioned in consequence of there being no protection or barrier around the vault, the plaintiff is entitled to recover.</p> <p>“ If the jury find that the plaintiff exercised ordinary care, and was not guilty of negligence, it will then be your duty to ascertain and determine the amount of damages to which plaintiff is entitled.</p> <p>“ This is not a case for vindictive damages. But the plaintiff, if entitled to recover, is entitled to full and fair compensation for the injury he received. The injury was of a serious character— the plaintiff lost for a time the use of his right arm — whether he will ever regain the full use of his right hand, would seem to be doubtful. A person who, in the exercise of ordinary care, falls or is thrown into a deep pit or vault, improperly left open and exposed on a public road or highway, by the owner, ought to be fully compensated for all the injury he may receive.</p> <p>“ Extravagant damages should not be given, but full compensation for the injury should be made.</p> <p>“ The charge of the court sufficiently answers the points submitted by defendant’s counsel — and so far as they are not answered they are refused.”</p> <p>The jury found for the plaintiff $1500 damages.</p> <p>The errors assigned in this court were to the rejection,and reception of the evidence, as above stated; to the charge of the court, and refusal to answer defendant’s points.</p>

<p>A judgment entered on a narr., reciting a bond and warrant of attorney to confess judgment, but without any appearance for defendant or formal confession of judgment, will be set aside as irregular.</p> <p>The entry on the back of the nair., “ Narr. with confession of judgment,” is not a confession of judgment, but a mere memorandum or endorsement.</p>

This case depends upon that of Lytle v. Colt’s Executors. The real estate of James Lytle, the defendant below in that case, was sold, and the proceeds of sale were brought into court for distribution. An auditor was appointed, who allowed to the judgment of Colt’s executors, for use of Marvin v. Lytle, the full amount appearing to be due upon it, upon the ground that the court below had refused to set it aside. The case was submitted without argument by

This was an action of assumpsit on a promissory note. Judgment was entered February 23, 1856, for a want of an affidavit of defence. Execution was issued the same day and put into the sheriff’s hands on the 25th. March 26, 1856, defendant entered bail for the stay of execution, which was approved by the President Judge. April 22, 1856, defendant moved the court to set aside the execution on the ground that bail had been entered for the stay.

<p>Error to the Common Pleas of McKean county.</p> <p>This was a feigned issue to determine the right to ‘the money raised by the sheriff’s sale of the personal property of R. P. Wright. On the 6th of March, 1865, the plaintiff, Gideon Irons, obtained two judgments against Wright, one for $250, and the other for $450, upon which he caused executions to be issued and placed in the hands of the sheriff on the 7th March, 1855. On the 13th March, 1855, McQuewans & Douglass issued two writs for about seventeen thousand dollars against the same defendant, and which came to the sheriff’s hands on the same day. On the day following R. P. Wright applied to O. L. Stanton, one of the associate judges of McKean county, who made the following order: “ For satisfactory'cause I hereby direct th efi.fa.’s now in the hands of the sheriff, to be returned on the above stated judgments, until next term, and all proceedings stayed in the mean time.” The executions were returned the same day by the sheriff in pursuance of the order of Judge Stanton. Of these proceedings no notice was given to Irons or his attorney. On the 19th of March the plaintiff applied to the same judge, and upon hearing, notice having been given to the other parties, the former order, staying the executions, was rescinded, and the writs directed to be proceeded in as if such order had not been made. The executions were accordingly, on the 24th March, 1855, handed back to the sheriff. No levy had been made on these writs prior to the order to return them. On the McQuewan & Douglass writs a levy was made on the 22d of March, the property advertised on the 23d, and a copy of the same levy attached to the Irons executions on the 24th of the same month. The property was sold on the 30th March, 1855, for the sum of $13,832.37, which was brought into court for distribution. This feigned issue was directed to try the right of the plaintiffs to have their executions satisfied out of this fund.</p> <p>The court below (White, P. J.), after stating the facts, instructed the jury as follows:—</p> <p>“ The case of the Commonwealth v. Magee, 8 Barr 240, is decisive of the power of the judge to make the order without notice, and of the right of the sheriff to obey it.</p> <p>“ The return of the writs, although their vitality may not have been destroyed, annulled their lien. This existed only while the sheriff had them in possession, and ceased to exist as soon as they were returned by order of a competent authority. It attached again on the 24th of March, but too late, as the lien of defendant’s writs intervened on the 13th. The mistake of Judge S., if not occasioned by the fraud of defendants, would not modify or change the legal effect of his act. The attorney of MeQuew.an & Douglass had no authority to consent to the rescission of the judge’s order, or to agree that the rights of these parties should be placed as they were prior to the granting of it. Such assent or agreement without leave from them, was simply void and did not affect their rights.”</p> <p>The jury found for the defendants.</p> <p>The cause was removed to this court, and the foregoing instructions to the jury assigned for error.</p>

This was an action of replevin by Richard Mullin against John O’Donnell to recover a dun mare. The defendant pleaded property, and to support it gave in evidence a suit brought against the plaintiff before a justice of the peace on the 4th May, 1855, to appear on the 10th, and on that.day the cause continued to the 19th of the same month. On the 13th of May Richard 'Mullin drew up a paper and signed it, agreeing.to confess judgment to the plaintiff for the sum of $77.50.

<p>Error to the Common Pleas of Erie county.</p> <p>Ejectment by Ansel Gifford against John and Milton Gifford.</p> <p>Both parties claimed through Thomas Ashtley. Plaintiff gave in evidence a deed for the land in controversy from Ashtley. to one Joseph Neeley, and one from Neeley to himself, dated December 9, 1851. By articles of agreement the land had been sold by Neeley to James M. Gifford, who paid the purchase-money, and directed the deed to be made to his son, the plaintiff. Defendant John Gifford claimed by virtue of a sheriff’s sale of the land as the property of James M. Gifford, and deed of sheriff to him. This sale was made upon a ven. ex. under a judgment for costs in favour of Burch et al., who were defendants in a suit brought in the name of William Leonard, as plaintiff. On the day of trial the court marked the cause for his use by permitting the addition “James M. Gifford use of.” To the admission of the record of this suit in evidence plaintiff objected; the evidence was admitted, and at plaintiff’s request a bill of exceptions sealed.</p> <p>There was some evidence tending to show that the deed was made by Neeley to plaintiff for the purpose of keeping the property out of the reach of his father’s creditors.</p> <p>The counsel for plaintiff presented, inter alia, the following point, and requested the instruction of the court thereon:—</p> <p>4.. That the sheriff’s sale and the evidence in this case confer no title on John Gifford, there being no judgment against James M. Gifford to warrant the issuing of an execution against his property.</p> <p>The court (Galbraith, P. J.) answered this in the negative.</p> <p>The errors assigned were, the foregoing answer, the admission in evidence of the record of the suit, James M. Gifford for use of Leonard v. Burch et al., and the answer of the court below as quoted in the opinion of this court to defendant’s third point.</p>

This was a scire facias on a judgment, in which the commissioners of Washington county were plaintiffs, and Michael Slusher, Robert Doak, and James Marsh were defendants. Slusher, in 1848, was appointed collector of state and county taxes in Amwell township. He gave the usual collector’s bond, with Doak and Marsh as his sureties. Judgment was entered on this bond to No. 30, November Term, 1848. A scire facias issued March 16, 1853.

Adolph Eberhart conveyed to Sarah Tate, wife of Lee Tate, a tract of land, reserving air annual rent of fifty dollars during his life. On 1st April, 1854, Tate and wife conveyed to William Neil for $2500, giving- him a judgment for $850 to indemnify him against the rent reserved by Eberhart out of the land. One-third of the purchase-money was paid by Neil in cash, for the remainder he gave judgments payable in one and two years.

Josiah Hutchman had a judgment against Robert Wallace entered August 5, 1851. Under this judgment in September, 1858, he purchased at sheriff’s sale the oil-mill, containing the engine which is the subject in controversy. This judgment ivas satisfied out of the proceeds of the sale. Turnbull and Welker had a judgment against Wallace entered April 24, 1852, of which Hutchman became assignee and owner.

This was an action brought by Laws, Rhodes & Barr to recover the price of certain Hour sold by them to Samuel H. Lucas. William Rhodes, one of the plaintiffs, was also a member of the firm of S. Cook & Co., who were indebted to S. McClurkan & Co. McClurkan & Co. issued a foreign attachment for their claim against Cook & Co., making Lucas garnishee. Rhodes appeared to the attachment, and a verdict was rendered against him, and judgment accordingly.

Error, to the District Court of Allegheny county. This was a scire facias on a mortgage brought by Matilda Blackford’s executor against William Stoops. The mortgage was dated the 1st day of April, 1852, and was given by Stoops to Mrs. Blackford, who was at the time a married woman, to secure $2000 which she loaned to him, and being money which she owned in her own right.

<p>Under the Act of 1851, the widow of a decedent is entitled to three hundred dollars out of the proceeds of the sale of real estate in preference to a judgment-creditor, in whose favour the husband had waived the benefit of the Act of 1849, exempting $300 worth of property from levy and sale.</p>

This was an action of trespass brought by Henry Cyphert, by his next friend, against John A. McCloskey, Dennis Burgoon, and others, to recover damages for taking and carrying away the property of the plaintiff. Solomon Cyphert, the father of the plaintiff, became insolvent in 1849, and his property, both real and personal, was sold by his creditors.

This was an action of assumpsit, brought by Lucretia Morris against Abner Garrison, guardian of Lucretia Morris. Levi Morris, the husband of the plaintiff, and the father of the ward, died on the 20th January, 1842. His daughter Lucretia was theu eight or nine years of age. The defendant was appointed her guardian on the 18th June, 1849.

Upon the petition of Jane Hunter, the court, on the 8th November, 1841, appointed James Lee, the appellant, guardian of her child Clara, who was then under the age of one year. The appellant accepted the trust, and discharged the duties thereof in such a manner that his conduct in his fiduciary capacity was not questioned.

This was a bill in equity, filed by-Elizabeth Loomis against Dyer Loomis, executor of Dyer Loomis, deceased, to compel respondent to account, and pay the debts and legacies out of personal estate, and to enjoin him against the sale of real estate.

James McKennan, by his will proved in 1845, appointed John H. Shryock, Leonard .Shryock, and James A. McCahan his executors. The Messrs. Shryock alone discharged the duties of executors until 1855, when they were discharged on their petition after settling an account. James A. McCahan then assumed the duties of executor, and used the funds of the estate for the payment of his own debts.

This was an amicable action between Isaac M. Pennock, trustee of J. G. Woods et ux., plaintiff, aüd George Wilson, defendant, as follows:— “ And now, November 1st, 1856, it is hereby agreed by and between the parties to the above writ, that the following case be stated for the opinion of the court, in the nature of a special verdict. “ Isaac M. Pennock, the plaintiff above named, by proceedings in the Court of Common Pleas of Allegheny county, on the 9th day of February,…

Error, to the Court of Common Pleas of Hrie county. This case arose upon the following case stated:— “Now to wit, May 19, 1856, it is agreed by and between the parties to this suit by their attorneys, that judgment shall be entered in this case against the defendant and in favour of the plaintiffs, and liquidated at the sum of ten hundred and forty-one dollars and twenty-six cents, with costs of suit, release of errors, &c., with interest from this date. “ It is further…

<p>Any material alteration of commercial paper, unaccounted for by bim who holds it, is fatal to a recovery upon it.</p> <p>The Acts of Assembly of 6th April, 1830, and of 11th April, 1848, were intended to obliterate the common law distinctions in Pennsylvania, between instruments joint, and those joint and several, in the classes of cases provided for by those statutes.</p> <p>An alteration therefore of a negotiable note made by two, by interlining the words “ or either of us,” is not such a material alteration in this state as will avoid the note.</p> <p>The terms of the legislation, though limited-to undertakings that are joint and several, are applicable to contracts that are joint and not several.</p> <p>The distinction between joint and joint and several contracts, always had regard to the remedies, the parties being bound according to the tenor of the instrument to which they put their signatures, it is evidence against each of them, but the discharge of one by taking action against the other, is the peculiarity which the statutes have taken away.</p>

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action of assumpsit against the defendant, Struthers, on his endorsement upon a draft or bill of exchange, of which the following is a copy: — ■</p> <p>“New York, February 23, 1854.</p> <p>“ $5000. Four months after date pay to the order of Tilden & Co. five thousand dollars, value received, and charge to the account of Edward Hazen.</p> <p>“ To Jas. T. Foster, Esq.</p> <p>“ 78 Beaver street, New York.”</p> <p>Which was accepted by Foster and endorsed by “Tilden & Co.,</p> <p>“Thos. Struthers,</p> <p>“W. A. Irvine.”</p> <p>After proof of the handwriting of all the parties down to the defendant inclusive, the plaintiff gave in evidence that the notary public on the 26th June, 1854, “ demanded payment at the place of business of James T. Foster at No. 78 Beaver street, New York, as designated on said draft, and protested the same for non-payment the samé day.” On the morning of the 27th June he deposited notices of protest in the post office, addressed to the respective endorsers at their places of residence.</p> <p>■ The defendant offered in evidence a deposition of one of the firm of Tilden & Co., to whose order the draft was made payable, which was objected to by plaintiff, the objection overruled, and an exception sealed.</p> <p>The defendant further offered William A. Irvine, another endorser, to prove inter alia that the draft was made by Hazen, Foster, Tilden & Co., for the purpose of taking up other protested paper given for the purchase of land; after objection by plaintiff, the witness was admitted, and an exception' taken.</p> <p>It appeared that Foster resided in the city of Albany when the bill was drawn and at its maturity, but when in New York did business at his room at the Irving House, and ivas occasionally at No. 78 Beaver street — the office of the North Carolina Copper Company, in which he was a stockholder.</p> <p>The court was requested, inter alia, to charge the jury:—</p> <p>2. That if they believe that James T. Foster never lived or had a place of business at No. 78 Beaver street, then the notary was not further bound to inquire after him.</p> <p>3. That if the acceptor in his acceptance designated this place of business, he was bound to provide funds for payment at that place, and in default, a demand at that place and protest in due form, makes the endorsers liable.</p> <p>The court (Galbraith, P. J.), upon these points, charged the jury as follows:—</p> <p>“ To the 2d and 3d points, it is answered that we cannot charge in accordance with them; we cannot say to the jury as requested in the 2d point, there being no evidence that James T. Foster ever lived or had a place of business at No. 78 Beaver street: on the contrary, the uncontradicted evidence being that he never did reside there, and equally clear from the evidence that he never had a place of business there, and the whole evidence showing that both his domicile and place of business was elsewhere; that his residence was either at Albany or Greenbush, and that he had some sort of office or business place while in New York, at the Irving House in that city; and there' being no evidence that he had either removed from the state or absconded. The notary, or the plaintiff, or some one for him was bound, in order to make the endorsers liable, to go further in efforts to make a demand upon the acceptor, and so to show' by evidence that he had made inquiry after him, or account satisfactorily for not so doing.</p> <p>“ The third point raises the question whether the mere note at the bottom of the bill, put there by the drawer of the bill, not, as we think, as designating the place of payment, but as the room where the acceptor might at that time be found, to signify his acceptance. The acceptor writes his name as acceptor without designating any place of payment. This, we think, is no designation of the place of payment, and is certainly no evidence o'f either residence or place of business at that place, particularly in opposition to the uncontradicted affirmative evidence, that that was neither his place of residence or business. It is true the notary, Leslie Irvine, calls it his place of business, but in his cross-examination explains it very clearly, showing that he so called it merely from the number at the foot of the bill. These two points are therefore determined in the negative, and this determines in effect the cause with defendant. We do not say .that the number at the foot of the bill would be of no importance under any or all circumstances. When diligent and faithful search had been made for the acceptor without success, it might be, as a last resort, proper to make search for the acceptor there, and finding no information in relation to him, make demand of any one he might find there; but that is not this case.”</p> <p>The jury found for defendant.</p> <p>The errors assigned were the admission of the endorsers as witnesses, and the answers to the 3d and 4th points, as above.</p>

<p>It is well settled that failure of title to part of the land sold, affords a pro tanto defence against payment of purchase-money, unless it appears that the purchaser has taken the title at his own risk.</p> <p>Where by articles, it was agreed that land within certain boundaries should be conveyed, and a deed was made purporting to be the same number of acres, but described differently from the articles, and there was a failure of title to a part of the land, this was a good defence against the recovery of a portion of the purchase-money.</p> <p>Such a defence might be bad to a bond given to a wife to induce her signature to the deed.</p>

Error,' to the Common Pleas of Orawford county. This was an action of covenant brought by Minor T. Carr against Sarah Lowry, administratrix of the estate of S. B. Lowry deceased, upon a sealed contract made May 22, 1844, between plaintiff and the intestate. The plaintiff, for a certain consideration, granted to the intestate, his heirs and assigns, the privilege of making and continuing in use through a lot of land belonging to plaintiff a tail race for a mill.

<p>Error to the Common Pleas of Erie county.</p> <p>This was an action of assumpsit by David Sterrett against Peter Wright, to recover for the use and occupation of a farm in Erie county. The defendant is the son-in-law of the plaintiff, and in 1848 the plaintiff purchased a farm of one hundred acres, divided it into two parts, and made a gift of the one-half of it to the defendant, upon which he moved with his family, and for four years afterwards continued to use and cultivate the other portion of the farm, the rent of which, per annum, the witnesses stated, would be worth from $40 to $80: to recover which this action was brought.</p> <p>The court below (Galbraith, P. J.) ruled that “ the relation existing between the plaintiff and defendant rebuts the implication of a contract, and defeats the plaintiff’s right to recover in the absence of any express agreement to pay.”</p> <p>The jury found for the defendant.</p> <p>The above instructions, inter alia, were assigned for error.</p>

The Ebensburg and Susquehanna Plank Road Company, before locating their road, surveyed two routes, one called the Eastern and the other the Western.

This was an action on the case brought by Andrew Barkley and Elizabeth his wife against John Thompson, for defamatory words alleged to have been spoken by the defendant of and concerning Elizabeth Barkley.

This suit was brought by Giles Stanford against Horace Bunce, in 1851, before a justice of the peace. Judgment was entered for plaintiff for $73.75, and the defendant appealed. On the trial in the Common Pleas it appeared that $50 of the amount claimed was a payment to- defendant on a conditional sale of land by him to Stanford. The plaintiff offered in evidence the deposition of Susan Bunce, a resident of the county.

<p>The error'of a prothonotary of the Common Pleas, who was also prothonotary of the District Court, in filing in the latter a report of viewers, and an appeal therefrom, required to be filed in the Common Pleas, will not deprive a party of his right of trial by jury upon complying with the requirements of the law on his part.</p> <p>The opposite party, in such case, can have a rule to have the proceeding’s amended, so as to show that the affidavit and recognisance were taken in the proper court, in default of which amendment the appeal may be stricken off.</p>

This was an action of debt brought by Margaret II. Myers, widow of Dr. John J. Myers, against The Keystone Mutual Life Insurance Company, to recover $5000 on a policy of insurance, alleged to have been issued on the 4th April, 1854, for seven years on the life of her husband for her use. Dr. Myers in November 1853 took a risk on Ms life for $2000, and paid the first semi-annual premium thereon of $19.95.

<p>Although advisable, it is not imperative upon the auditor-general, prévious to the settlement of the account of a public officer, to give notice of the time and place of such settlement.</p> <p>The omission to give notice after settlement does not avoid the proceedings of the accounting officers, but extends the time of appeal until sixty days after notice given.</p> <p>The settlement of the accounting officers is conclusive, unless appealed from within the time prescribed. ■</p> <p>Service of a summons in a suit brought by the Commonwealth, is equivalent to a notice, if no other has been given, and in such case the defendant may appeal within sixty days thereafter1, proceedings on the suit to stay until the appeal is disposed of.</p>

<p>Error to the Common Pleas of McKean county.</p> <p>This was an action of assumpsit, brought for money expended, &c., by the overseers of the poor of Keating township against the overseers of the poor of Bradford township.</p> <p>On the 15th September, 1849, an order was issued by the justices of the peace to the overseers of Keating township for the maintenance of a pauper, who had come into said township the day previous: he had just returned from the West, was sick, and a proper subject for relief. Immediately after the service of the order upon them, the overseers of Keating township took charge of him, employed a. physician to attend him, and furnished him with boarding and clothing. On the 11th November, 1853, they applied to two justices for an order to remove him to Bradford township, which was issued the same day. They then removed and delivered him to the overseers of Bradford, who refused to receive and provide'for him, but took no appeal from the order of removal. The pauper returned to Keating township and continued a charge there.</p> <p>The further history of the case and questions presented on the trial appear in the exceptions to the evidence and charge of the court, as specified in the assignments of error.</p> <p>1st. The court erred in admitting the evidence contained in the first bill of exceptions as follows:—</p> <p>1. On the trial plaintiffs offered the complaint made by G. W. Starks and Ebenezer Gallup, overseers of Keating, before J. Chadwick and P. Gallup, Esqs., for an order of removal of Aurelius Beeman, of Bradford township, dated the 11th November, 1853, and the order of removal of same date, issued by said parties for the purpose of showing the legal settlement of the pauper. Defendants objected to their admission on the ground that it does not appear that defendants had a hearing before the justices upon the complaint or order, or notice to appear. Objections overruled and offer admitted, plaintiffs proposing to follow up the evidence offered by proving the execution of the order of removal.</p> <p>Exception by defendants and bill sealed.</p> <p>2. The court erred in rejecting the offer contained in the second bill of exceptions, as follows:—</p> <p>“ Defendants called Gherdis Corwin, and proposed to prove by him that Beeman’s last place of legal settlement at the time of issuing the order of maintenance in September, 1849, was in Keating township, and not in Bradford township. Plaintiffs object to the admission of this offer on the ground that the question of settlement is decided by the adjudication and order of removal of the parties given in evidence and not appealed from. Objections sustained — offer rejected — exception by defendants, and bill sealed.”</p> <p>8. The court erred in rejecting the offer contained in the third bill of exceptions as follows:—</p> <p>“ Defendants further offer to prove, in connexion with proof already given, that J. Chadwick was elected a justice of the peace in and for Keating township, and so continued until the 1st of February, 1853, at which time the borough of Smethport was incorporated, when he continued to act as a justice of the peace for said borough, his residence having been when elected within the boundaries of said borough as subsequently organized, and he having continued to reside within said boundaries. That the pauper had a legal settlement in Keating township, prior to the erection of the borough of Smethport, and that at the time of the granting of the order of removal he had a legal settlement in that part of said township which was included in the borough of Smethport — the offer is made for the purpose of showing the incompetency of Justice Chadwick to grant the order of removal. Court reject the offer. Counsel for defendants except, and at their request this bill is sealed.”</p> <p>4. The court erred in the charge in saying “ The order of removal and proceedings thereon unappealed from were conclusive upon the overseers of Bradford as to the question of the pauper’s legal settlement, and the liability of Bradford township for his maintenance;” and they also erred in the general doctrine of the whole charge.</p>

<p>Where the evidence is, that on an account being presented to a debtor, “ he said he would attend to it, fix or settle it before he went away," it is insufficient either as an acknowledgment of the debt or a promise to pay it, which will remove the bar of the statute of limitations.</p> <p>Where a copy of an account is presented to a defendant and left with him, in an action brought for the same debt, where the defendant fails to produce the account left with him, the presumption is, that there was no difference between that presented and that proved, or it would have been shown by thd production of the paper.</p> <p>AVhere the plaintiff sent his account to a third party to present to the defendant for payment, that party had such an agency in the matter as would make a promise to him to pay the debt, available to the plaintiff.</p>

The plaintiffs in error, Huldah L. Tucker et al., were the owners-of a farm across which the Erie and North-East Railroad Company located their road. Upon the land were a saw-mill, woollen factory, &c., which were injured because of the obstruction by the railroad to the free flow of the water driving the machinery.

Proceedings were instituted against Bryan, Kennedy & Co. before an alderman, under the act relating to sealers of weights and measures, of 15th April, 1845, in order to recover the penalty of $5 for the alleged violation of that section of the act that provides for the annual testing of scales and weights by'the regulator.

<p>Error to the Common Pleas of Somerset county.</p> <p>This was an action of ejectment, brought by Anna Bloodgood against John Coughanour, to recover the possession of 307 acres of land. The plaintiff showed a title from the Commonwealth to Benjamin Shoemaker, and a devise from him to his son, Samuel Shoemaker. On the 16th December, 1816, Abraham Morrison, as the agent of Samuel Shoemaker, sold the land by articles of agreement to William Hardy, on which a part of the purchase-money was paid. The plaintiff is the daughter and heir-at-law of Samuel Shoemaker, having been intermarried with Francis Blood-good. To December Term, 1836, the plaintiff, and her husband then living, brought an action of ejectment against Hardy, and on the 4th of April,-1839, an award of arbitrators was made in the cause, finding in favour of plaintiff, to be released on payment of $259, with costs of suit. There was no time fixed in the award for the payment of the money found to be due. Hardy, by his agent, shortly afterwards sold and conveyed the land to Frederick Oldfather, in consideration of $900, and offered to pay the amount to Abraham Morrison, the plaintiff’s agent, and to Gebhart, the attorney in the cause, who both refused to receive it. He then paid the amount to the prothonotary. Oldfather conveyed the premises in 1840 to William Glessner, .one of the defendants. Coughanour was a tenant under Oldfather and Glessner from 1840 until after the bringing of this suit. To September Term, 1839, a habere facias possessionem was issued, which was not executed. Another issued to August Term, 1841, which was stayed. A third writ was issued to December Term, 1842, and the sheriff and G-ebhart, the agent and attorney of the plaintiff, went upon the premises to execute it. While there, Coughanour, the tenant of Oldfather and Glessner, agreed to hold the premises under the plaintiffs. The sheriff returned the writ, “ nulla bona as to costs, and possession delivered to plaintiffs, including houses and barns, all now in possession of John Coughanour.” Coughanour, in 1847, accepted a lease from Glessner for one year, and another in 1848, for two years, and remained in possession at the bringing of this suit. The writs of hab. fa. pos. and the return were, upon a rule to show cause, set aside by the court in 1854, as having improvidently issued.</p> <p>A number of points were raised in the court below, on the admission and rejection of testimony, and on the effect of the former recovery and proceeding on the judgment; but the only matters reviewed by this court, were on the points made by defendant:—</p> <p>That one judgment in ejectment to enforce the specific performance, as the law stood in 1839, was conclusive, and that therefore this action could not be maintained.</p> <p>That the setting aside of the hab. fa. pos. vitiates and annuls all the acts and proceedings under it, including the lease from plaintiff’s agent to Coughanour.</p> <p>The court below (Fisher, P. J., holding a special court) answered these points as follows :—</p> <p>“ The law is correctly stated. As a mere legal proposition we accede to it, but we cannot perceive its applicability to this case. This action is not an equitable action brought to recover purchase-money due on articles of agreement. Such an action has been already brought and decided, and (if you believe the testimony of Sheriff Mowry) possession given under it to the plaintiff, and the defendant went into possession of it as her tenant. But this action is brought on the legal title which plaintiff contends is in her, against an alleged tenant who, she contends, at the expiration of his lease, refused upon due notice to quit the demised premises and redeliver to her the possession.</p> <p>“ The defendants further request the court to charge the jury that the setting aside of the said writs of habere facias possessionem vitiates and renders null and void all the proceedings and acts done under and in pursuance of them. The court answer that this proposition is not correct.</p> <p>“ As regards the last two points, which we have answered in the negative, we further instruct you that the return of the sheriff to the last writ of habere facias issued on the judgment obtained in the ejectment brought by Mrs. Bloodgood and her husband against William Harding, ‘ that the possession of the premises, had been delivered to the plaintiff,’ at the time it was made, was conclusive of the fact stated in it — upon William Harding, the defend ant; upon William Glessner, who claims,under him, and upon Coughanour; whether he be the tenant of Bloodgood, or Oldfather, or Glessner — and that all acts done under it, previously to its having been set aside, are good. Nor could the setting aside of the proceedings afterwards falsify the fact stated in the return, nor undo the acts already done. And if, while the proceedings were in full force, and before they had been set aside, Coughanour became the tenant of Mrs. Bloodgood, as stated in the testimony of Sheriff Mowry, the fact that the writ was afterwards set aside could not, and did not, operate to change the relation of landlord and tenant previously created between Mrs. Bloodgood and Coughanour. Had Judge Burrell, when he set aside the proceedings, awarded restitution to Harding or those claiming under him, and had that decree been carried into effect, it would have presented a different case; but restitution was not awarded. If Coughanour became Mrs. Bloodgood’s tenant, as the sheriff swears he did, he is her tenant still.”</p> <p>The jury found for the plaintiff.</p> <p>The instructions above quoted {inter alia) were assigned for error.</p>

This was an action of covenant upon a general warranty, instituted by Hezekiah D. Gamble, against the executors of Francis McClure, deceased. The plaintiff, Gamble, was evicted from the' possession of 101 acres of land, being part of a larger tract conveyed by Francis McClure to Vm. McClure, Jr., by deed dated 30th May, 1805, containing a covenant of general warranty, for himself, his heirs and assigns. Wm.

<p>A purchaser of land at sheriff’s sale with notice that another had the right to remove a house erected on the land, cannot claim damages for such removal.</p>

Sterling. John Craham, executor of Alexander Roseburgh, deceased, petitioned the Orphans’ Court on the 6th September, 1856, for the specific performance of a contract made by his testator on the 12th day of April, 1855, with Jane R. Sterling, for the sale and exchange of real estate.

<p>Error to the Common Pleas of JErie county.</p> <p>This was an action of ejectment brought by Wareham B. Williams againgst Rebecca Bentley et al., to recover the possession of 100 acres of land. Henry Crammond, by his agent, Judah C. Spencer, entered into an article of agreement with William Bentley for the sale of the land now in dispute. On the 30th December, 1850, all of the purchase-money had been paid except $60, when the following agreement was executed:—</p> <p>This agreement, made the 30th day of December, 1850, between William Bentley, of Venango township, county of Erie, and state of Pennsylvania, of the first part, and Wareham B. Williams, of the borough of Wattsburg, county and state aforesaid, of the second part, witnesseth, that the said party of the first part does hereby sell, assign,.transfer and set over, unto the said party of the second part and to his heirs and assigns for ever, all his right, title, and interest, of, in, and to a certain piece, parcel, or. farm of land, situate, lying, and being in the town of Venango, in the county of Erie, and state aforesaid, and lately occupied by the said party of the first part as his farm, and bounded as follows, to wit: (here the description follows), containing 100 acres and allowance, more particularly described in a certain article of agreement made and executed by J. C. Spencer (the agent for said land), to the said party of the first part. And the said party of the first part does hereby authorize the said J. C. Spencer to execute a deed to the said W. B. Williams for the said land.</p> <p>The said Wareham B. Williams, the party of the second part, does hereby, as a consideration for said premises, agree to pay the debts or claims against the said party of the first part to the following named persons, to the following amounts, if they should amount to so much, to wit: H. Janes, $5; Harper, Ross & Gould, $2; Haynes, $1; J. Robinson, $1; Prentiss Brown, $3 — in all $12. Also, the party of the second part is bound and agrees to pay not far from $60 to the former owners of said premises, it being as near as may be the amount yet due on said premises. And further, the said party of the second part further agrees to pay the said party of the first part $100, the receipt of which is hereby acknowledged. And the said party of the second part further binds himself to support and maintain the said party of the first part at his own house, to wit: at the house of the said party of the second part, in a good and comfortable manner, and to provide him with all necessaries suitable with his condition in life, and to provide him with all necessary attention during the term of his natural life, and to assist him to visit his friends. And the party of the first part shall have liberty to go and come when he pleases. And the said parties do severally bind themselves each to the other, their heirs and assigns for ever, to perform each and every of the conditions on their part to be performed.</p> <p>At the date of this agreement one Shadduck, a tenant of Bentley, was upon the land, and refused to give up the house he occupied to one Baird, to whom Williams leased in the spring of 1851. Bentley, it seems, “made his home at Williams’s,” until April or May, 1851, but occasionally would go away and return again. In the summer of that year he married Rebecca, defendant, and with her and her son, W. C. Pratt, the other defendant, moved upon the premises, Shadduck having left them. On the 16th June, 1851, Bentley, without being requested so to do, paid Spencer the $60, the balance of the purchase-money. The deed was made to Bentley, but never delivered. In August, 1851, Marshall, attorney for Williams, went to Spencer to tender to him the balance of the purchase-money, but Spencer replied that Bentley had paid the whole of it on the 16th June. No money was counted or offered.</p> <p>The defendant, Rebecca Bentley, claimed title as sole devisee under the will of her husband, William Bentley, proved 29th November, 1852.</p> <p>The counsel for plaintiff presented the following points, and prayed the instruction of the court thereon:—</p> <p>1. If the jury believe from the evidence that William Bentley on the 30th day of December, A. D. 1850, was competent to make a contract, and that the said W. B. Williams acted in good faith in undertaking to pay the debts of the said Bentley, and to support him through life, the writing bearing date December 30,1850, and given in evidence by the plaintiff, divested the said Bentley of all his title to said land as fully as if he had made a deed of quitclaim, and thereby conveyed to the said Williams his entire interest in the land in dispute.</p> <p>2. Upon the execution and delivery of the said writing by Bentley to Williams, the rights of the parties became fixed, and Bentley could not rescind the said contract without the consent of Williams.</p> <p>3. If the jury believe the evidence of J. C. Spencer, William Bentley on the 30th day of December, 1850, had an equitable interest in the land in controversy, which was the subject of bargain, sale, and conveyance, and having on the said day conveyed all his interest in the same to the plaintiff, no interest in the said land passed to the defendant Rebecca Bentley by the will of William Bentley.</p> <p>4. If the writing or agreement of December 30,1850, conveyed the right of Bentley in and to the land in controversy to the said plaintiff, the payment of the $60 by the said Bentley on the 16th day of June, 1851, to J. C. Spencer upon the original contract without the request of Williams or demand of Spencer, gave the said Bentley no right or title to said land, and it was not necessary for the plaintiff to tender the said sum of money to Bentley before bringing this action.</p> <p>5. If the jury believe from the evidence that the said Williams furnished the said Bentley with suitable support and maintenance while the said Bentley remained in the family of the said Williams, and was ready and willing to continue to do so, but the said Bentley left his house without reasonable cause, the said contract is as binding on the said Bentley and his devisee, as if Williams had supported him to the time of his death.</p> <p>6. If the jury believe from the evidence that the said Bentley, at the time he made the agreement given in evidence, was fully acquainted with the condition of Williams’s house and family, it is to be inferred (without evidence to the contrary) that he knew the rooms he was to occupy and their condition.</p> <p>7. If the jury believe from the evidence that the said Williams paid debts of the said Bentley, paid money to himself, boarded and supported him from December to April or May following, in pursuance of the said agreement, his equity is paramount to that of the defendants, who have not shown that they have paid a dollar for the land in controversy.</p> <p>8. The contract given in evidence was an executed contract on the part of Bentley, nothing more for him to do, and the delivery thereof to Williams fully invested all the title of Bentley in Williams, and the plaintiff is entitled to recover in that case unless the jury are satisfied from the evidence that there was fraud practised on Bentley in obtaining said conveyance — fraud must be proven, and not inferred.</p> <p>The defendants’ counsel presented to the court and requested instruction to the jury upon the following, among other points:—</p> <p>3. That the contract in this case is an executory contract, and to entitle the plaintiff to recover he must show -that he has performed his part of the contract fairly and substantially — and if he has neglected to provide comfortable and suitable lodging, maintenance and attention to William Bentley and family, and fairly paid the debts agreed to be paid, he cannot recover.</p> <p>4. That the plaintiff is not entitled to recover under any aspect of this case without having first tendered to Bentley the purchase-money that remained due on the land, and which he agreed to pay and made no offer to pay to Mr. Spencer for over seven months aftep it was agreed to be paid by him.</p> <p>5. That the tender to Mr. Spencer was not sufficient. Mr. Marshall told him he had the money, but neither showed nor proved that he had in fact any — or that he was authorized by Williams to make such tender — nor has he brought the money into court.</p> <p>6. That where the party has not or does not exhibit to the court a case of clear equity, calling for the specific performance of the contract, the party will be turned round to a suit at law for damages — and if they are not satisfied that the evidence exhibits a case clear of suspicion or unfairness in the making of the contract, or that the contract was not fairly complied with by the plaintiff, then he cannot recover, but will be left to an action of damages against Mr. Bentley’s estate.</p> <p>The points were answered as follows by the court (Galbraith, P. J.), to plaintiff’s 8th and defendant’s 3d:—</p> <p>“ The main question in this case is contained in the plaintiff’s last and eighth point, and the converse of it in the defendant’s third point; that is, what is the character of the writing given in evidence by the plaintiff, dated December 30th, 1850 ? Upon the determination of that question is involved most of the other principles in the cause — whether that writing is an executed or ah executory contract. It becomes very important, therefore, to. determine its character. In many of its features, it is an execu-. tory contract. Some portion of it is expressly so, and seems as though it was intended to be so, as much as it could be drawn under the circumstances. Still, has it all the substance and necessary form of an absolute and unconditional deed of conveyance ? It commences by calling it an ‘ agreement’ in its caption, and entirely different from an indenture or deed of conveyance, implying that there are contained stipulations yet to be performed on both sides. Again, it appears upon its face, that the vendor, William Bentley, was not the holder himself of the legal title, that he claimed but an equity. It authorizes the supposed agent of the holder of the legal title to execute a deed to the plaintiff. This authority might be revoked, and J. C. Spencer — the person named — might cease to be agent. All this is negative of an executed conveyance. Again, there is no habendum, or tenendum, no delivery of possession, or authority to take possession, nor was possession in fact taken in pursuance of it, for although James Williams, the son of the plaintiff, says he went into possession, on his cross-examination, it appears that he was at one time on the place and took some hay from it and put up some rails on the fence. Yet, take the testimony as true, it would come, far short of such a possession under the writing as would make it an executed contract in equity. And although we have not in Pennsylvania, as in England, the public livery of seisin, yet there: must be something equivalent to it. Under our recording ^ets,' which probably render the acknowledgment and recording of a deed equivalent to a deed with livery in England, without a recording, an executed and acknowledged deed dispenses with the formal and open ceremony of livery of seisin; and for some purposes there may be a shade of difference between a writing acknowledged by the party — the vendor — and all executed in such a manner as t© be the subject of proof by witnesses so as to admit it for record. Upon the whole, then, without multiplying reasons, we say that the writing here is but an executory contract, and not an executed one in the sense contained in these points. The plaintiff’s eighth point is thus determined in the negative, and the’defendant’s third point in the affirmative.”</p> <p>To plaintiff’s 1st and 2d:—</p> <p>“ In answer, then, to the plaintiff’s first and second points, we say that all might be true as stated in those points, and yet it would not necessarily follow that the plaintiff would be entitled to recover. There are many other circumstances, such as we shall explain more fully in answering other points, which would defeat the plaintiff’s equity, and therefore avoid his recovery; these points are therefore decided in the negative.”</p> <p>3. “ To the third point, it is answered, that according to the testimony of J. C. Spencer, Wm. Bentley had an undoubted equitable interest in the land, but we do not assent to the conclusion of this point.”</p> <p>4. “We do not assent to the premises or conclusions of this point, and for reasons which will be explained in answer to-the defendants points.”</p> <p>5 and 6 answered in the affirmative, if on consideration of the whole case, they are applicable to it.</p> <p>' 7. “ To the seventh point it is answered, that the plaintiff must recover upon his own equity, without regard of that of the defendants. They stand on their possession, and are entitled to retain it, unless the plaintiff has shown such equitable title from William Bentley as to entitle him to a specific performance of his contract against him or those claiming under him.”</p> <p>Defendant’s 4th and 5th answered in the affirmative. ■</p> <p>6. “ The evidence shows that there were some improvements on the land; the defendant’s witnesses estimate the value of the land in 1850 at from $900 to $1000, and now at some $1200 or $1500— the plaintiffs from $500 to $600. There is some evidence of payment of debts by Bentley himself, and it is claimed that portions of the money were furnished by Williams. That there was money paid by Williams on the contract, and that he furnished boarding for some time — from one to four months — is admitted, and some evidence is given of the kind of boarding and lodging furnished by the plaintiff. All this the jury will determine if the case is; such as to render it necessary to be ascertained. The will of Bentley is dated 10th Nov. 1852, by which he devises the property to Rebecca his wife, and it is proved the 29th of that month.</p> <p>“ The contract may be such as to he good at law to enable the plaintiff to recover the amount paid, for the board and the damages for the rescission of it by the vendor — Bentley; and if so might be a good foundation for an after suit; and in that case the land would be bound in the hands of the devisee for the payment. If the contract was good and binding in equity, and such as should be enforced if fulfilled by the plaintiff, and he has not done everything he was bound to do, or tendered performance of it; or if, on the principles we have endeavoured to explain, it was entered into under circumstances of haste, surprise, or imbecility, so as to be the subject of imposition, and advantage taken, the verdict should be for the defendants. If it was such as a court of equity would enforce on the principles stated, and the plaintiff has done all he was bound ro do, or tendered performance and it was refused, the verdict should be for the plaintiff.”</p> <p>The verdict of the jury was in favour of defendants.</p> <p>The foregoing answers were the errors assigned.</p>

Error, to tbe District Court of Allegheny county. This was an action on tbe case by John Dugan against the President, Managers, and Company, for erecting a bridge over tbe Monongahela river opposite tbe borough of Pittsburgh, in tbe county of Allegheny, to recover damages sustained in the loss of a coal-boat, laden with bituminous coal, which was wrecked in November, 1853, against the second pier of the defendants’ bridge from the Pittsburgh side.

The Youghiogheny Navigation Company was chartered by the legislature in 1844, for the improvement of the navigation of that river by the erection of locks and dams. By the Act of 1849, the company was made liable for injuries to private property in the same manner as the Monongahela Navigation Company by the Act of 1848.

<p>Unreasonable delay in the entering of a judgment note by one to whom it has been assigned will discharge a guarantor, unless the money could not have been made by a diligent entry and pursuit of the judgment.</p>

Andrew Leech owned a store which was conducted by his wife. On the 8th April, 1852, he sold it to her, and she in the month of July following sold it for $2200, taking negotiable notes in payment. Leech died in August, 1852. James Donaldson and' Joseph Leech became his administrators, sold his real estate, and filed their account, which was confirmed absolutely, showing a balance of $2564.61 for distribution. Auditors were appointed to distribute this fund.

Error, to the Common Pleas of Payette county. This was an action of ejectment by Robert Brownfield, against Julia Mackey and James Mackey. The land in dispute was part of a tract of land which Stephen Mackey, Sr., who died in March, 1819, directed by his last will and testament to be sold by his executors.

Error, to the Common Pleas of Armstrong county. This was an appeal from the judgment of a justice of the peace. Barbara Patrick brought suit against Samuel Rhodes on a note for $18.12, given for stone sold to him. Under her husband’s will she occupied a room in the mansion-house, and received one-third of the proceeds of the farm; the other part of the house, and the farm, were occupied by her sons.

<p>The words “clerk sleeps in the store” in an application for insurance copied into the policy, are mere description of occupancy and not a warranty for the future.</p> <p>Whether a statement in a policy shall be taken as a warranty, is a question of interpretation, to be ascertained as in other contracts.</p> <p>The rule seems to be, that such representations in a policy are construed to be warranties, when it is apparent that they had in themselves or in the view of the parties a tendency to induce the company to enter into the contract on terms more favourable to the insured than without them. If the court cannot say so, then they are treated as representations, and left to the jury.</p>

<p>Error to the Common Pleas of Indiana county.</p> <p>This was an action on the case to recover damages for malicious prosecution. On the 11th April, 1853, James W. Laughlin made information against John Clawson, charging him with the larceny of certain gold coin. A hill of indictment was laid before the grand jury, the prosecutor was examined, and the bill ignored. Laughlin alleged that he had lost the coin on the public road leading from Jacksonville to his residence; that it was tied up in a linen rag, that Clawson came along the same road that evening, found the money, and appropriated it to his own use. It appears that the parties had had, the same day, some difficulty about the payment of taxes. Clawson, on his way home that evening, called upon Laughlin to get him to settle his taxes. Laughlin alleged that he then asked Clawson if he had found any money on the road; that an evasive reply was given, and finally Clawson denied having found the money. In making change, Clawson is represented to have pulled something out of his pocket, which he threw behind him. This was afterwards picked up, and was said to have been the same rag in which the money was tied. It appears that on the next day, Laughlin was out hunting the money, and said he did not know where he lost it. There was some discrepancy in his statements as to the description of the money lost; and some time afterwards, gold coin of different denominations was found in Jacksonville. The district attorney (Mr. Paige) was consulted early in the proceedings instituted against Clawson. After the grand jury ignored the bill, Clawson brought this action.</p> <p>The counsel of defendant requested the instruction of the court upon the following point, inter alia:—</p> <p>That if the jury believe the testimony, on the part of defendant, there were such reasonable grounds of suspicion as would constitute probable cause for the prosecution.</p> <p>Which the court answered, as follows:—</p> <p>It is urged that probable cause is a mixed question of law and fact. The authorities on this subject must be reasonably construed. They mean that the question of probable cause must not be left loosely to the jury to decide, upon their unskilled conceptions of the law. It is surely ashing a court to go beyond judicial function, when they are called upon to say that a given state of facts is sufficient to create a suspicion of guilt in the mind of a reasonable and prudent man. This seems one of those duties which fall peculiarly within the province of the jury. It is the duty of the court to state what probable cause is, to fix the standard to which the evidence shall come, to announce what the law demands as establishing probable cause; but it remains for the jury to determine what facts are proved, and also whether those facts are sufficient to found a reasonable suspicion of guilt in the mind of a prudent man. This latter cannot surely be a question of law, upon which the court must give a binding instruction. From its nature it involves an inquiry of fact, and cannot be determined by the application of any principle of law known to us.</p> <p>“At the same time that we decline giving a binding instruction on this subject, we feel free to give our opinion upon the facts, with which the jury may agree or disagree as they see fit. We think if the jury believe that Laughlin and wife testified truly before the grand jury, there was reasonable ground of suspicion, sufficient to constitute probable cause. This opinion we found on the belief of the jury: 1st, that Laughlin actually lost the money on the road; and 2d, that Clawson had in his possession, at Laughlin’s house, the identical rag in which the money was wrapped when lost. The jury will consider all the testimony adduced by plaintiff, tending to show that defendant’s story was a fabrication — some evidence that he did not describe the money correctly at first, or gave a different description of it lately; and the evidence of money corresponding in kind to that lost, being recently found in Jacksonville. We suggest that this last circumstance should be considered with caution, as it is of a nature easily manufactured.”</p> <p>The jury found for the plaintiff, $6.71.</p> <p>The errors assigned, were to those parts of the answer which are italicised; and also, that the court erred in submitting as a question of fact to the jury, whether the facts as proved amounted to probable cause; and in not instructing the jury whether the facts submitted to them to find, did or did not amount to probable cause.</p>

This was an action on the case brought by Samuel Youngblood by his father and next friend, William Youngblood, to recover damages from William Earhart for injuries done him by a bull belonging to Earhart, the defendant below. Samuel Youngblood was employed by James Long, a tenant on .the farm of Earhart.

<p>Error to the Common Pleas of Lawrence county.</p> <p>This was an action of ejectment brought by Eli Pitzer against Aaron Bender, to recover 25 acres of land situate in North Beaver township, Lawrence county.</p> <p>■ The case was tried at a special court held by Hon. J. M. Burrell, and involved, as a leading feature of the case, the boundary line as originally located between lots Nos. 26 and 27, in the first district of donation lands.</p> <p>■ After much evidence had been given on both sides, defendant offered to prove, for the purpose of fixing the boundary, what Andrew Jenkins (now deceased), who was an old resident of the neighbourhood and a surveyor, said or declared as to the line trees of lots Nos. 26 and 27, where they were situated, and that they had been cut down, and that these declarations had been made on the land.</p> <p>This was objected to by plaintiff’s counsel, and the objection was sustained by the count.</p> <p>The jury found for the plaintiff, and the defendant removed the cause to this court, where the rejection of the foregoing offer was the only error assigned.</p>

<p>Appeal from tbe Common Pleas of Gíreme county.</p> <p>On tbe 16tb April, 1853, tbe Farmers’ and Drovers’ Bank of Waynesburg recovered a judgment for $1500 against Abel Jones, wbicb was entered on tbe appearance docket against “A. Jones,” and transferred to and entered in the judgment docket in the same manner. On tbe 30th November, 1853, another judgment was entered in tbe same manner in favour of Cole & Howard. And on the 16th December, 1853, Brooks, Tibbals & Fulton, and Frederick Fickey & Sons, respectively, entered judgments against the same defendant, but which were docketed against “Abel Jones.”</p> <p>The real estate of Abel Jones was sold at sheriff’s sale, and the money, amounting to $ 100] .50, was brought into court for distribution.</p> <p>, An auditor was appointed to make distribution. On the hearing before this auditor, John 0. Flenniken and Charles A. Black, respectively, testified that they knew Abel Jones, were familiar with his signature, and never knew him to sign his name any other way than “A. Jones: ” and that they knew of no other A. Jones to whom it would apply in Greene county. Mr. Flenniken, five or six years ago, had known Adolphus E. Jones, who signed his name A. E. Jones, who about that time left the county.</p> <p>The auditor was of opinion that entering the judgments on the lien docket against “A. Jones,” was not such notice of record to the creditors of Abel Jones as they Avere entitled to have, or as the law requires. He therefore refused to appropriate any of the money to the judgment of the bank, or that of Cole & Howard, but distributed it fro rata to the judgments of Frederick Fickey & Sons, and that of Brooks, Tibbals & Fulton.</p> <p>Exceptions were filed to this report by the counsel of the bank and of Cole & Howard.</p> <p>The court below (Gilmore, P. J.), after argument, confirmed the report of the auditor, and decreed distribution accordingly.</p> <p>From this decree the Farmers’ and Drovers’ Bank of Waynesburg appealed.</p> <p>The errors assigned Avere to the confirmation of the report of the auditor.</p>

Bill in equity. The bill set out that the respondents were a corporation under the Act of 12th April, 1842, entitled “ an act to incorporate the Erie and North-East Railroad Company, and for other purposes.” The act provides, inter alia, that the “ president and managers of said company, by themselves or their agents, shall have power to construct a railroad from the borough of Erie to some point on the east boundary line of the township of North-East, in the county of…

<p>In Equity. Ooram Lewis, C. J., and Black and Knox, Js.</p> <p>The bill avers the incorporation of complainants by the Act of the G-eneral Assembly of Ohio, of February 18, 1848, and the supplement of December 10, 1850, and the Act of the General Assembly of Pennsylvania, approved May 5, 1854, entitled “An Act relating to the Sunbury and Erie Railroad Company, and the Cleveland, Painesville and Ashtabula Railroad Company;” and alleges their right to construct a railroad from the Erie and NorthEast Railroad, at the extreme boundary of the city of Erie, in a south-westerly direction, along and across said city and its streets and to the Ohio state line, and that they had surveyed and marked said route; and that the city of Erie passed resolutions denying complainant’s legal right to erect bridges across the streets of Erie, and in pursuance thereof removed its bents and other materials by which such constructions were being carried on; and prayed for a special injunction to prevent the interference of defendants until final hearing, and then for a perpetual injunction, and concluded with a general prayer for further relief.</p> <p>At the preliminary hearing, respondents filed affidavits denying the allegations in complainants’ bill, and they also gave in evidence an exemplified record from the Court of Common Pleas of Erie county, by which it appeared that a few days before the filing of this bill, a bill, of which this was a copy in all its material parts and allegations, had been there filed and a motion made for a preliminary injunction, which had been there argued, considered, and adjudicated upon, and the motion for a preliminary injunction overruled; that that case was then pending in said court for final hearing, and argued that they could not be compelled to answer the same bill in two courts of concurrent jurisdiction at one and the same time, and moved the court to dismiss this bill with costs to respondents.</p>

This was a bill in equity, at the suit of the County of Mercer against The Pittsburgh and Erie Railroad Company, and the officers and directors of the same company. The bill of the complainants charges that the railroad company was incorporated by virtue of an Act of Assembly approved the 21st April, 1846, with the powers and privileges therein contained, and those conferred by the several supplements thereto.

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of debt by George Le Fevre against S. Watson Carr, to recover four bonds amounting to $2500, payable to John Thompson or bearer, issued by the Chartiers Coal Company, incorporated by the legislature of Pennsylvania. The special verdict finds the following facts in th.e case: the capital stock of the company was not to exceed $200,000 in 10,000 shares of $20 each, and by the act of incorporation, it was provided that each stockholder shall be liable in his individual capacity for the debts and performance of all contracts entered into by the company, to the amount of the balance unpaid on the stock of said stockholder, so that the subscribed stock of each stockholder shall be liable for the said debts and contracts. On the 7th February, 1850, the whole of the stock was subscribed, 250 shares being taken by the defendant, who at the time paid $500 on account of his subscription. On the 18th October following, he received the company’s certificate for 250 shares. On the 20th August, 1850, the treasurer of the company drew on Carr for $375, the amount of the sixth and last instalment due on his stock.</p> <p>In their stock ledger on the 9th February, 1850, the company charged themselves with certain coal lands, contracts for harbour, and lands at harbour, assigned and conveyed by one Remington to the company, valued and appraised, at $100,000, and receipted for by Remington to the subscribers to the capital stock of the company, among whom was Carr, who had a receipt for $2500. This sum with his cash payments of $10 upon each share appeared on the books of the company to his credit, balancing the charge for his stock, $5000.</p> <p>On the 1st October, 1850, the president and directors of the company (Carr being one of the directors, and secretary, and present at the meeting) for the purpose of raising means to meet the existing liabilities of the company contracted in the construction of their road, &c., authorized bonds of the company to be issued to the amount of $60,000, in sums of not less than $100 nor exceeding $1000, bearing interest at the rate of 6 per cent, per annum, redeemable in three years from their respective dates. Of the bonds So issued the four in this suit are part, and being pay-, able to Thompson or bearer, Le Eevre became the holder of them without any transfer in writing from Thompson, who was a stockholder and treasurer of the company.</p> <p>At a meeting of the directors of the company, Carr being present, the following preamble and resolutions were adopted :—</p> <p>“ Whereas but $10 on each share of the capital stock have been called in or paid by the stockholders, and whereas on the organization of this company a prospective value or estimate was placed upon contracts or lands conveyed to the company by Z. W. Remington, and whereas, contrary to the estimates at the time of the organization of the company, $100,000 cash subscriptions proved insufficient to carry out the plans and purposes contemplated by their charter, therefore</p> <p>“ Resolved, That it becomes a duty imperative on this board to require and demand the additional unpaid instalment of $10 per share on each share of stock issued or subscribed, to be paid into the company forthwith.</p> <p>“ Resolved, That the bonds of the company heretofore issued will be received in the payment of the said additional instalments.</p> <p>“ Resolved, That the stockholders unable or neglecting to pay the said additional instalment on each share, may return their old certificates and receive therefor new certificates for stock to the amount of their actual cash payments.</p> <p>“ Resolved, That the secretary furnish the stockholders with a copy of the foregoing resolutions.”</p> <p>After the passage of these resolutions, and before Le Eevre became the holder of the bonds sued on, Carr having paid the $2500 cash, being ten dollars per share, and being unable and having neglected to pay the further sum of $10 per share, tendered to the president of the company his original certificate for 250 shares, and demanded a new certificate of stock to the amount of $2500, his actual cash payment, which new certificate the president refused to give.</p> <p>Judgment was entered upon the special verdict in favour of defendant. This was the error assigned by Le Fevre, plaintiff in error.</p> <p>Before the case stated was agreed upon and submitted to the court, Carr, the defendant, demurred to the plaintiff’s declaration and made the following points:—</p> <p>1. There is no privity of contract between the plaintiff and defendant, and the defendant can only be chargeable by force of charter; the proviso affords a security “ for the debts and performance of all contracts entered into by the company to the amount of the unpaid stock,” and was designed as a general protection to the creditors of the company in case of its insolvency, and not to give an action to any particular creditor for his own. exclusive benefit.</p> <p>2. If an action could be sustained by any particular creditor on his claim, it cannot be done until said claim be established by judgment against the company; for individual stockholders cannot be required to contest the claims against the company, and are not supposed to be provided with the means of defence against them.</p> <p>3. If the plaintiff be a bona fide holder of the bonds or creditor of the company, his remedy is, first to obtain judgment against the company, and then by bill in equity, in his own behalf and behalf of such other creditors as there may be, to enforce the liability.</p> <p>The court (Hampton, P. J.) overruled the demurrer, and entered judgment of respondeat ouster thereon. This judgment, and the admission in evidence of the four bonds, the books and charter of the company, were assigned by Carr for error.</p>

<p>The general rule is, that where a person obtains the possession of land under a contract with another for the purchase of it, he will not be permitted to set up an independent title to protect a hostile possession. He must pay thepurchase-money or restore the possession.</p> <p>Hence to a scire facias upon a mortgage given to secure the payment of the purchase-money, due on the mortgaged premises, the mortgagor cannot set up a want of title as a defence.</p> <p>But when the parties at the time of the execution of the mortgage agreed that the money should not be paid until a certain specified claim should be decided and settled, the rule would be different.</p> <p>Where the legal title to land is held by one, to secure certain claims, and the holder of one of the claims obtains judgment for the amount against the equitable owners, and sells the land, the purchaser will only take the equitable title of the defendant, unless the holder of the legal title was instrumental in making the sale, or his assent to it appears of record.</p> <p>Where a party purchases at sheriff's sale, pending an action of ejectment for the premises, in which the persons whose title he purchases are parties, he is affected with notice of it, and bound by the decree in the case as much as if he was an actual party to it.</p>

<p>Error to the Common Pleas of Carlon county.</p> <p>This was an action of covenant, brought by Ezekiel W. Harlan and Robert Henderson against The Leliigh Coal and Navigation Company, upon the following agreement under seal:—</p> <p>This indenture, made the twelfth day of April, in the year of our Lord 1847, between the Lehigh Coal and Navigation Company of the first part, and Ezekiel W. Harlan and Robert Henderson of the second part, Witnesseth, That the said party of the first part, for and in consideration of the payment of the rent and performance of the covenants and agreements hereinafter mentioned, on the part of the said party of the second part hereto to be paid, performed, observed, and kept, have let and demised, and hereby do let and demise unto the said party of the second part, the right and privilege to mine and take away stone coal from the veins known as the R. and S. veins, and any other veins intermediate between said veins and the Q. vein, in the Sharp Mountain, on the land of the said party of the first part near to tbe town of Tamaqua, in the county of Schuylkill, and state of Pennsylvania: to have and to hold the rights and privileges hereby demised unto the said party of the second part, from and after the 1st day of April, 1847, for and during the term of three years thence next ensuing, fully to be complete and ended on the 81st day of March, A. D. 1850; yielding and paying therefor unto the said party of the first part, their successors and assigns, the rent or sum of 25 cents per ton, for each and every ton (of 2240 pounds) during the said term, so mined and taken away, of the size that would, in the ordinary course of screening, pass through an inch square mesh, and over a three-eighths inch square mesh, and commonly called chestnut coal; and for all coal of a larger size than the above, fifty cents per ton (of 2240 lbs.), making a deduction on the whole of said rent of 5 per cent, as is hereinafter provided.</p> <p>And it is further covenanted and agreed, by and between the said parties, that the said party of the second part shall mine and take away from the said veins, and from the P. and Q. veins now in possession of the said party, at least fifty thousand tons of coal in each and every year during the continuance of this lease, provided the said veins, by all proper management, means, efforts, and exertions, can be made to yield or produce the said quantity of coal above specified; said party of the second part shall use all necessary and proper diligence and precautions that may be required to enable them to mine and take away the quantity aforesaid, by running gangways and chutes, day and night, in such manner as may be directed by the mine agent of said party of the first part. But if the said party of the second part shall not use, in the opinion of said agent, the necessary means, efforts, and exertions in working the said veins, and shall, in consequence thereof, fail to mine and take away the said quantity, they shall, notwithstanding, pay to the said party of the first part the same amount of rent, as if they had mined and taken away the full quantity of 50,000 tons, as above specified. All the rent that may accrue by virtue of these presents shall be paid by the said party of the second part to the said party of the first part, their successors and assigns, in quarterly payments, on the first day of the months of July, October, January, and April.</p> <p>And it is further mutually covenanted and agreed, by and between the said parties, in manner following, that is to say:—</p> <p>1. That the said party of the second part shall and will, at the expiration of every quarter during this lease, furnish to said party of the first part, a statement signed by themselves, of the number of tons of coal mined during the then next preceding quarter; and the weight of such coal shall be ascertained, fixed, and determined by the railroad scales near Tamaqua, attested by the superintendent of said scales; for all of which the said party of the second part shall pay quarterly the rent hereinbefore stipulated to be paid, less the deduction of five per cent, as aforesaid, unto the said party of the first part, their successors and assigns; and, on failure to pay the rent accruing under this lease, as the same shall become due, according to the terms and conditions hereof, in manner aforesaid, it shall and may be lawful for the said party of the first part, their successors and assigns, to enter on the said demised premises, and to distrain the goods and chattels then and there found, and to proceed with and sell the same, according to the usual course of distress for recovering rents in arrear.</p> <p>2. That all the coal the said party of the second part may mine as aforesaid, shall be screened and prepared in the best possible manner, and be at all times subject to the inspection and approval of the mine agent of the said party of the first part. And should said agent, at any time or times, decide that the coal is not properly prepared, it shall not be permitted to go to market till properly selected.</p> <p>3. That all the refuse coal or dirt, taken out of said veins, shall be deposited in such position or places, as the said mine agent may from time to time direct.</p> <p>4. That the said party of the second part, will, at their own expense, and subject to the direction and approval of the superintendent and engineer of the said party of the first part, make all the necessary improvements for opening and working the said veins, by driving a slope from a point to be selected by said superintendent and engineer, into the R. or P. vein, at this latter point driving a tunnel across into the S. vein, and bringing the coal from both veins by said slope to the head of the inclined plane now in use for the Q. vein, and thence transferring it to the breakers and screens now in use for the coal from said Q. vein; the said party of the second part also providing, at their own expense, all the additional machinery required for breaking and screening said coal. The said improvements to be completed on or before the 1st day of April, 1848.</p> <p>5. That the veins shall be worked in the manner directed by the said company’s mine agent, and all the coal shall be taken out as clean as shall be consistent with safety, and the gangways left in good working order at the expiration of this lease, and the mine agent, or the superintendent, of the said party of the first part, shall have the right at all times of free ingress and egress to and from said vein, to see that the terms, conditions, and stipulations of this agreement are faithfully observed and performed.</p> <p>6. That the said party of the first part, their successors or assigns, shall have the right and privilege to keep at the expiration, or sooner determination of this lease, all the machinery hereinbefore stipulated to be provided by the said party of the second part, said machinery to be taken at a fair and just valuation to be made thereof.</p> <p>7. That the said party of the second part shall and will, at their own cost, lay railroads in the drifts and gangways of said veins, and keep the same in good order and repair, and also shall and will furnish all the rails, to be of white oak or yellow pine, the drift cars, prop timber, boards, planks, and slabs necessary and requisite for the said railroads, gangways, and drifts, subject to the like approval of the mine agent or superintendent of said party of the first part, but nothing herein contained shall be construed as authorizing said party of the second part to cut or carry away any timber from land belonging to the said party of the first part.</p> <p>8. That the said party of the second part shall and will, at their own. expense, keep the roads, chutes, engines, screens, breakers, and all other machinery in good working order during the continuance of this lease, and, at the expiration, or sooner determination thereof, shall and will surrender the said demised premises and all their right and claim to such roads, machinery, and other improvements as may be constructed or used for properly working the said veins, excepting the additional machinery for breaking and screening as is hereinbefore excepted, unto and for the use and benefit of the said party of the first part, their successors and assigns.</p> <p>9. That on failure to pay the said rent, in manner aforesaid, or if the said veins shall remain unworked for the space of thirty days at any one time, or if the said party of the second part shall transfer or assign this lease, or underlet the premises, without the consent of the said party of the first part first had in writing, or if the said party of the second part shall in the opinion of the agent of the party of the first part neglect, refuse, or be unable, on their part, to comply with or perform any of the said covenants herein set forth, then, and in either of such cases, this lease and every matter and thing therein contained may at the option of the said party of the first part, their successors or assigns become void, and then, and in that case, the said party of the first part may re-enter on the said demised premises and hold the same as if these presents had not been executed, without prejudicing or affecting any claim they may have for rent or for damages they may sustain for breach by the party of the second part of the covenants above specified, anything hereinbefore contained to the contrary thereof notwithstanding.</p> <p>10. That, if the said party of the second part cannot procure, without cost, the right of way through lands owned by others than the party of the first part, then, and in that case, the said party of the second part shall, for the purpose of securing such right of way, institute the proceedings and observe, in all respects, the formalities required by the Act of Assembly of the 5th of May, 1832, entitled “ An Act regulating lateral railroads,” and the cost of such' proceedings shall be borne by the said party of the first part. And, upon the payment of said cost of proceedings, and of all outlays consequent thereon for the obtainment of said right of way, the said party of the second part engage to convey to the said party of the first part, by good and sufficient deeds, and clear of all encumbrance, the lands not now belonging to the said party of the first part, which it may be necessary to occupy with said improvements, "and which may be acquired with or by amicable arrangement with the owners thereof, or by proceedings under the above-mentioned Act of 5th of May, 1832.</p> <p>11. That whenever a dirt fault shall occur in said veins, the said company shall and will allow the said party of the second part a fair and just price for running the gangways through all such dirt faults, exceeding ten yards lineal, provided, however, that soft workable coal shall not be considered faults. And, in case the rock or slate closes in so as to cut off the coal, and render it necessary to cut away the rock or slate, in order to obtain the necessary width of gangway, then, and in such case, the said party of the first part shall and will pay the whole expense of removing such rock or slate faults, they, the said party of the first part, at all times being first consulted, and approving, by their assent in writing, of running such gangways in or through any faults.</p> <p>12. That the said party of the first part will make a fair allowance for the railroad iron and for the spikes necessary for laying the railroads in the main drifts or gangways upon completion of the same, said allowance to be made by deducting it from the rent hereinbefore stipulated to be paid; but no allowance will be made for repairs. And a fair allowance, to be determined by the mine agent of the party of the first part, shall also be made for running the slope and doing the other work necessary for opening the said veins, provided the mode of opening the said veins shall have been upon a plan approved of by the engineer of the said party of the first part, the said allowance to be made by deducting it from the ■rent hereinbefore agreed to be paid.</p> <p>13. The said party of the second part hereby agree that the mine agent of the party of the first part shall at all times have free aceess to their mining books and accounts, for the purpose of verifying the returns made of the quantities of coal which may be taken from the several veins hereinbefore mentioned.</p> <p>And for the just and true performance and observance of their respective covenants and agreements aforesaid, the said parties do mutually bind themselves, their respective heirs, executors, administrators, and successors, each unto the other, firmly by these presents.</p> <p>In witness whereof, the said party of the first part have caused their common or corporate seal to be hereto affixed, and the said party of the second part have hereto set their hands and seals the day and year first above written.</p> <p>The facts of the case, and the points raised, are fully stated in the opinion of Mr. Justice Woodward.</p>

<p>A constitution is a plan or frame of government, which lays down certain great and fundamental principles, according to which the several departments it calls into existence, are to govern the people; but all auxiliary rules which are necessary to give effect to these principles, must of necessity come from the legislature.</p> <p>A- law that is unconstitutional, is so, because it is either an assumption of power not legislative in its nature, or because it is inconsistent with some provision of the federal or state constitution.</p> <p>The amendment to the constitution adopted in 1850, does not expressly require that an election to fill a vacancy in a judgeship shall take place at the next general election after the vacancy happens.</p> <p>The Act of 27th April, 1852, which prescribes that such vacancy shall be filled by an election, at the next general election, which shall happen more than three calendar months after the vacancy occurs, does not conflict with the constitution, and is a valid and binding exercise of legislative power.</p> <p>Such enactment restrains the right of election in no other wise than regulation is restraint.</p> <p>Where a vacancy occurs within three months of a general election, and it is filled by appointment by the governor, such appointment can continue only to the first Monday of December, succeeding suchyirei general election.</p> <p>When a vacancy occurs again by the expiration of such appointment, the office may again be filled by appointment by the governor, to continue till the first Monday of December succeeding the next general election.</p> <p>_ A law intended to take away, or unnecessarily postpone and embarrass the right of election, would be set aside as unconstitutional. But a provision prescribing three months for deliberation in the choice of a successor, in case of a vacancy, is a reasonable time, and based upon the analogies of the constitution.</p> <p>Where a judge died on the 15th day of July, and the next general election thereafter occurred on the 14th day of October, more than three months had not intervened, whether the day of the death be included or excluded in the computation.</p> <p>Conforming to the rule of excluding one of the days, less than three months had elapsed.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an ejectment brought by Isaac P. Lykens against Charlemagne Tower and William Whelan, to recover a lot of ground on Mahantongo street, in the borough of Pottsville, on which was erected a brick dwelling-house.</p> <p>On the 8th of August, 1845, Jacob Geisse and Isaac P. Lykens, the plaintiff, entered into an agreement in writing, in which Lykens agreed to build for Geisse, on or before the 1st day of April, 1846, a hotel, according to certain plans and specifications. The hotel was to be built on a lot belonging to Geisse, in Centre Street, Pottsville, and to be called “ The Eagle Hotel.” Lykens was to find all the materials, and have all the work done, and when the hotel was finished, to give Geisse the possession of it without further charge or trouble; extra work to be paid for at a valuation. In consideration of which, Geisse agreed to pay Lykens $7500, to be paid on orders drawn on Geisse by Lykens as the work progressed, to enable him to pay for the labour and materials. The agreement also contained the following clause: “ and the said Lykens also agrees to take a certain lot owned by the said Geisse, and by him purchased of Henry Shelly, on Mahantongo street, in said borough, at the price of seven hundred dollars, to be a part of the consideration-money above-mentioned; but the said Lykens is not to have any title to said lot of ground un.til the completion of said hotel, at which time the said Geisse agrees to make to him or his assigns a good deed for the same.”</p> <p>Sometime in the fall of 1845, while the work on the hotel was in progress, Lykens took possession of the lot mentioned in the agreement, and proved on the trial that Geisse said to a number of individuals that the lot belonged to Lykens. To a person who called upon him in the presence of Lykens to purchase the lot, he said that the lot belonged to the latter. When the street commissioners notified him to have his sidewalks in front of the lot paved, he referred them to Lykens, alleging he had sold it to him, •and the latter being notified by the officers, had the pavement made. And on several occasions when individuals who had performed work at or furnished materials for the hotel building called with orders from Lykens, Geisse refused to pay the orders, alleging that what money he had paid, and the price of the lot, were equal to the work done at the building.</p> <p>On the 31st January, 1846, Geisse and wife conveyed by deed of that date, the lot in controversy to William Whelan, and gave the latter a judgment in the penal sum of $2500 to indemnify him against three several judgments of $100 each, standing open against Greisse, and also against the claim of Lykens under the article of agreement above-recited.</p> <p>Lykens continued to work at the hotel, and about the 1st of April, 1846, Greisse moved into it with his family and opened it as a hotel, Lykens continuing to do some work at various parts of the building until some time in May, 1846. The building was never entirely completed by Lykens, there being still some work to he performed at it when he finally left off, the amount or value of which did not appear in any part of the case.</p> <p>To December Term, 1846, Lykens brought an action of ejectment for the lot in dispute, against Whelan, who had obtained possession under his deed, and in June, 1849, a verdict and judgment were rendered in the cause for the defendant. And that judgment was affirmed on a writ of error brought to this court. The case is reported with the evidence in 3 Harris 483.</p> <p>On the trial of the present cause this verdict and judgment were set up by Whelan, apd Tower who occupies under Whelan, as a bar to this ejectment, because the first suit was founded upon an equitable title under the articles of agreement.</p> <p>The plaintiff presented the following points, and prayed the instruction of the court thereon to the jury.</p> <p>1. Although the written agreement given in evidence contains the stipulation, “ that the said Lykens is not to have any title to the said lot of ground until the completion of the said hotel, at which time the said Greisse agrees to make him or his assigns a good deed for the same,” yet, if the jury believe from the evidence in the case that after the signing of the said agreement, and after Lykens had done more than seven hundred dollars’ worth of work on the building, that Greisse agreed with Lykens that the lot was paid for by work done on said building, and that the lot then belonged to Lykens, and that Lykens then entered into possession of it with the assent of Greisse, and expended money on it, the equitable title to the lot became vested in Lykens, and is sufficient to enable him to recover in this suit.</p> <p>2. That the written agreement between Greisse and Lykens given in evidence, does not mention any time when the lot was to be taken by Lykens in payment, on account of work done and materials furnished by him, and it was competent-for Greisse and Lykens by parol, at any time while the title to the lot remained in Greisse, to agree with Lykens that the lot should be taken by Lykens in payment for his work, and if the jury believe from the evidence in the case that Greisse, while he retained the ownership of the lot, did agree with Lykens that the lot was paid for by work done at the building, and that Lykens took the lot in payment to the amount thereof as so much money on account of his work, that the. equitable title and interest in the lot became vested in Lykens, and nothing remained in Greisse but the legal title, and that no subsequent breach of the written contract, if any such occurred on the part of Lykens, would divest the equitable title acquired by Lykens in the lot.</p> <p>3. That if the jury believe the evidence of Matthias Riffle, Richard Owens, Bernard Reilly, and Isaac Severn, that the lot was paid for by work done at the hotel, and the equitable interest and title of the lot was vested in Lykens, and in order to recover in this action, he is not obliged to show that he afterwards finished the building.</p> <p>The court below (Hbgins, P. J.) answered these points as follows:—</p> <p>The court charged the jury that the previous action of ejectment given in evidence, barred the present action, and directed a verdict for the defendants.</p> <p>As the court were about to direct the entry of the verdict, the plaintiff’s counsel put to the court a number of points in writing, and request their instruction to the jury thereupon. The court answered under their view, as above stated, the points are immaterial, but pro forma as the counsel desire the opinion of the SuSupreme Court upon them, the court answer the points in the negative.</p> <p>A verdict was accordingly entered for the defendants.</p> <p>The above instruction, and the answer to the points, were the errors assigned.</p>

<p>Where A. purchased land by articles of agreement from B. for $10.00, $300 of which to be paid in hand, and a bond and mortgage to be given for the balance, and upon which agreement he paid $300, but refused to receive the title and complete the purchase by giving the bond and mortgage, he being insolvent; B. brought ejectment to enforce the payment of the purchase-money, or rescind the contract, and before the trial the wife of A., out of her own means, paid the balance of the purchase-money, and had the deed made by the vendor to herself; and a creditor of A. afterwards obtained judgment against him and sold the premises, and the purchaser brought an action to recover the possession:</p> <p>Held, if the transaction by which the title was vested in the wife of A. was free from fraud, the plaintiff was not entitled to recover.</p> <p>The creditors of A. would have had the right to protect his interest under the agreement, by coming forward and paying the,money due upon it, but were not entitled to the benefit of the arrangement made by the wife of their debtor, with her own means, on condition that the property was to be her own.</p>

<p>Where two individuals in possession of distinct portions of premises execute a joint mortgage of them, it is presumed that they are equal owners of such premises and equally liable for the mortgage debt.</p> <p>If the legal title be vested in one of the mortgagors, and he afterwards conveys to the other the part occupied by the latter for a nominal consideration, it will be the mere conveyance of the legal title in accordance with a preexisting equitable right.</p> <p>Where the part of him in whom the legal title was originally vested, is sold on a judgment entered subsequent to the mortgage, and the purchaser at sheriff’s sale of such part pays off the mortgage to prevent a sale of the premises under it, he is not a volunteer, but entitled to recover a moiety of the amount in assumpsit from the other mortgagor.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit, brought by Samuel Allen, sheriff of the city and county of Philadelphia, against Henry W. Gault.</p> <p>An action of partition was brought in the District Court for the said city and county to December Term, 1852, No. 544, in which John Miles and Josephine Miles, by her next friend William Hunt, were plaintiffs, and Eben Perry and Josephine Perry, his wife, late Josephine Miles, in right of said Josephine, and George Plitt and Sophia his wife, were defendants, to have partition of a house and lot of ground, No. 30 South Third Street, in the city of Philadelphia.</p> <p>Under an order of sale in this case, the premises were exposed to sale by the sheriff on the 4th July, 1853. The conditions of this sale were the usual conditions, requiring from the purchaser a payment of $50 at the time of sale, and the balance within ten days, otherwise the property might be sold again at the risk of the purchaser, who should make good any deficiency on the resale.</p> <p>At this sale the premises were struck down for $10,400, to the defendant, Henry W. Gault, who signed'his name as purchaser in the sheriff’s sales-book. He failed to pay the purchase-money, and an alias order of sale was issued, under -which the premises were again exposed to sale by the sheriff on the 5th September, 1853, and purchased by Charles • H. and George Abbott, for $9550.</p> <p>This action was thereupon brought by Samuel Allen, the then sheriff, who had made the sale to Gault, against him, to recover the diiference between the price bid'at the first and second sales.</p> <p>At the trial of the case the plaintiff put in evidence the record of the proceedings in the partition suit, and proved by the sheriff’s clerk, the reading aloud of the conditions at the opening of the sale made on the 4th July, 1853, the purchase by Gault fox $10,400, his failure to comply, and the resale on the 5th September, Í853, to the Messrs. Abbott for $9550.</p> <p>The defendant contended at the trial that the rule of caveat emptor does not apply to sales in partition, and that he was not bound to comply with his purchase, by reason of the absence of any evidence of title in the parties to the partition, and of proof to show the extinguishment of a ground-rent of five pounds reserved without clause for redemption on the 13th of July, 1772, out of a lot of ground in Third Street, of which the premises purchased by the defendant at sheriff’s sale were a part. The premises so purchased were conveyed on the 13th May, 1773, by the then owners, under and subject to a moiety of the ground-rent of five pounds. No evidence was given on either side, at the trial, in relation to the ground-rent, except the original deed of 13th July, 1772, reserving the rent and the conveyance of 13th May, 1773, subject to a moiety of it.</p> <p>The court below (his Honour Sharswood, P. J.), however, directed the jury to find a verdict for the plaintiff, for the difference between the price bid by Gault, at the first sale, and the price at which the property was struck down at the second sale, subject to the opinion of the court in banc on the following point reserved :</p> <p>Whether the plaintiff is entitled in law to recover upon the evidence ?</p> <p>The cause was afterwards argued upon the point reserved, and judgment entered thereon for the defendant, the court (by Judge Sharswood) delivering the following opinion:—</p> <p>“ The simple question presented by the reserved point is, whether in an action by the sheriff to recover the difference on a resale of land, sold by him under an order of sale in proceedings in partition, from a former bidder, it is necessary to show title in the parties to the partition ?</p> <p>“The question may be stated thus broadly, although perhaps it might be narrowed in this case to the question, whether evidence of a defect of title is sufficient answer to such an action. In point of fact, however, both questions are the same. - If a sheriff’s sale in partition, is a judicial sale, subject to the rule of caveat emptor, then it is not necessary that such title should be shown, nor would the absence of all right and title be any defence.</p> <p>“Upon all proceedings for the recovery of debts, the plaintiff hath a right to payment out of whatever title or interest his debtor may have, and the rule of caveat emptor, in such cases, is necessary to secure the rights of creditors. The reason of the rule does not apply in cases of partition.</p> <p>“Whether adversary or amicable, it is a proceeding for the benefit of the owners. The law steps in to do what either parties not sui juris are by law incapable of doing, or which one or more of several tenants in common unreasonably refuse to do; while all that passes under the proceedings is unquestionably only the right and title of the parties, it is so far their mere act and conveyance that the courts have invariably interfered to control and set aside such sales on the mere ground of inadequacy of price.</p> <p>“ Partition at common law in England was confined to coparceners, and could never result in a sale to a stranger. If the subject-matter could not be divided, it might be assigned to the parties in turns, or the profits divided in a similar way. Upon every such partition there was an implied general warranty. The statutes upon which partition between tenants in common depend, do. but extend the remedy which subsisted at common law between coparceners. The reason why the law annexed the implied warranty in case of partition by writ, was owing to the compulsory nature of the proceedings. It would be highly unjust if the title to one of the purparts totally failed, and the person to whom it had been allotted was evicted, that he should have the whole. Seeing that the law cast that particular part upon him, he should think that ubi eadem ratio ubi eadem lex, when the legislature made partition between joint tenants and tenants in common compellable by writ, the same principle ought to apply. There is, however, an opinion by Judge Kennedy, supported by some elementary writers, in Weiser v. Weiser, 5 Watts 281, to the effect that no warranty is annexed in partition under the statute, but simply a right to def aign the warranty paramount, and recover for the rate, yet I have been able to find no case to that point. The present chief justice, while presiding in Lancaster county, has held expressly the contrary, Strohecker v. Nousel, 5 Penna: L. J. 327; whether he be right or not in the construction he puts upon the 3d section of the statute 31 H. 8, c. 1, it seems at all events most reasonable and just to hold that as between the parties upon a division, they are bound to contribution in case of eviction.</p> <p>“Without venturing to express a decided opinion upon this point, it is sufficient, so far as the question before us is concerned, to refer to the language of the 2d section of the Act 11th April, 1799, by which a sale is authorized where the inquest returns that the property cannot be divided without prejudice to, or spoiling the whole. The order is for the sale of the “ lands and tenements,” whereas the various acts in regard to taking land in execution speak of the “ defendant’s real estate.” The judgment of quod partitio fiat is to be entered by the court upon the appearance of the parties, or on default being made after an examination of the title, and a quantity of the parts or purparts of the respective defendants, as well as of the plaintiffs. It is settled, however, that the judgment in partition does not affect the title to the land.</p> <p>“ It is worthy of remark that while no rights of creditors call for the rigid application of the rule of caveat emptor to sales in partition, on the other hand the interests of minors and married women require that property put up under such circumstances, should enjoy the fairest advantages to produce a full and fair price. It cannot be expected to do so unless the bidder be allowed a calm and advised examination of the title after the sale. Such examination cannot be satisfactorily made beforehand. If all the bidders must take that trouble and incur that expense, competition will necessarily be reduced, as we find is practically the case with sheriffs’ sales under executions. If a case should now and then occur where tenants in common, unable to exhibit a marketable title, may be prevented from making sale at all, the inconvenience will be partial and temporary, compared with the serious evil which may be expected to result from the contrary doctrine.</p> <p>“Rule dismissed, and judgment for defendant.”</p> <p>The plaintiff obtained this writ, and assigned the following points for error:—</p> <p>1. The court erred in deciding that, in an action by the sheriff to recover the difference on a resale of land sold by him under an order of sale in proceedings in partition from a former bidder, it is necessary to show title in the parties to the partition.</p> <p>2. The court erred in deciding that, in such action, defect of title is a sufficient defence, and that caveat emptor does not apply.</p> <p>3. The court erred in deciding that the absence of proof of the extinguishment of the ground-rent of five pounds reserved by William and Edward Farmer in the year 1772 out of the lot of ground, of which the premises sold under the order of sale in this case were a part, was such a defect of title as constituted a defence to this action.</p> <p>4. The court erred in deciding that the absence of proof of the extinguishment of the ground-rent aforesaid. could be set up as defence to this action, and that the defendant was not precluded from this defence, by his having failed to take a rule to set aside the sale at a proper time, which was the sole mode by which he could have raised it.</p> <p>5. The court erred in entering judgment for the defendant on the point reserved.</p>

<p>Where a question arises under that part of the Constitution of the United States, and the Act of Congress, which requires full faith and credit to be given in each state to the public acts, records, and judicial proceedings of every other state, our courts will take notice ex-officio of the local laws of the state from which the record comes.</p> <p>Whenever the proceedings are reviewable in the Supreme Court of the United States, where the states are not regarded as foreign states, and where their local laws are noticed without being pleaded or proved, the same rule prevails in the state courts.</p> <p>By the Constitution and Statutes of Ohio, the Probate Court is a court of record, and has jurisdiction to hear and decide a case of habeas corpus.</p> <p>The strictness with which the proceedingsof inferiortribunalsare scrutinized, applies only to the question of jurisdiction, and when that is established, the maxim omnia rite acta applies to them as well as to courts of general jurisdiction.</p> <p>An authentication of a record, certified by the same person as judge, and also as clerk of such court, is good under the Act of Congress, where the individual was legally empowered to act in both capacities.</p> <p>Where the record describes the person certifying as sole judge of said court, it is not necessary to set forth that he is the chief justice or presiding magistrate of the court.</p> <p>Such record in the courts of the State of Ohio, would be ground for an action of debt, and evidence to charge the defendant with the amount awarded against him, and being rendered by a court of competent jurisdiction, and certified in substantial compliance with the Act of Congress, it is entitled to the same effect here.</p>

<p>Where a testator has given complete directions for the drawing of his will, and which has accordingly been put in writing in his lifetime, and he is prevented by the extremity of his last sickness, from either signing it himself or giving express directions to another to sign it for him, the will will be good, if otherwise established.</p> <p>When the object is to bar a writ of error by matters of fact, which do not appear on the record returned, they should be brought to the view of -the court, either by a plea or a motion to quash the writ.</p>

<p>A ward who delays commencing proceedings to charge his guardian with negligence for eighteen years after arriving at age, is barred by the lapse of time.</p> <p>The statute of limitations protects the party in such case, although the proceedings are in the Orphans' Court, the same as if it were a common law action.</p>

<p>A dealer in the popular, and therefore in the statutory sense of the word, is not one who buys to keep, or makes to sell, but one who buys to sell again.</p> <p>Parties who manufacture locomotives and sell them only at their shop or manufactory, are not liable to the mercantile tax, imposed upon dealers by the Act of 22d April, 1846.</p> <p>Such locomotives are their own exclusive manufacture, within the meaning of the Act, notwithstanding a portion of the materials used in their construction, are purchased by the manufacturers, in such a state of progress as to be adapted to the purpose designed with less labour than the raw material would require.</p>

<p>This was an amicable action of debt in the Court of Nisi Prius at the suit of the Commonwealth against The City of Philadelphia, in which the parties agreed upon the following case stated, in order to have the matter determined by the Supreme Court:—</p> <p>“ ‘ The guardians for the relief and employment of the poor of the city of Philadelphia, the district of Southwark, and the townships of Northern Liberties and Penn,’ was a body politic and corporate, created by an Act of the General Assembly, approved March 5, 1828; the corporate body was composed of twelve persons, who were annually chosen in respective numbers by the corporate authorities of the city of Philadelphia, the districts of the Northern Liberties, Southwark, Spring Garden, Penn, and Kensington; and subsequently the authorities of the district of Moyamensing were authorized to elect to the corporate body. This corporation was charged with the care and employment of the poor of the city and districts named, which were all within, and embraced nearly the whole of the territorial limits of the county of Philadelphia. Several of the rural districts in the county were authorized to provide for their own poor, and formed no part of the said corporation.</p> <p>“ This corporation had conferred upon them the power to assess and collect taxes, and from time to time was authorized to borrow money for the purposes incident to their organization, and incurred debts amounting to upwards of $600,000, upon which interest was paid semi-annually by their treasurer. This officer was a member of the corporation, and his appointment was provided for by the act constituting the corporation.</p> <p>“ By an Act of the General Assembly, approved April 29,1844, entitled ‘ An Act to reduce the state debt, and to incorporate the Pennsylvania Canal and Railroad Company,’ all public loans or stocks whatsoever, except those issued by the Commonwealth, were made liable to the payment of a tax of three mills on every dollar of the value thereof. By the 42d section of this Act, it was provided as follows: ‘ And it shall be the duty of the treasurer of each county, incorporated city, district, and borough of this Commonwealth, on the payment of any dividend or interest to any holder or agent claiming the same, on any scrip, bond, or certificate of indebtedness issued by the said incorporated city, district, or borough aforesaid, to assess the tax herein made and provided for state purposes, upon the nominal value of each and every said evidence of debt, said tax to bo deducted by the said treasurer, on the payment of any interest or dividend aforesaid, and the same shall be held by him, until paid over to the state treasurer.’ ”</p> <p>“ The treasurer of the said corporation, at the times of the payment of the interest to the holders of the loan of said corporation, deducted therefrom the amount of said tax. The loanholders protested against the deduction of the said tax, and the same was retained by the treasurer, and not paid over to the state treasurer, until such time as the legal rights of the parties and the Commonwealth in the premises should be determined. The said loan was not at any time assessed nor returned for assessment by the several holders thereof, nor was any state tax thereon at any time assessed, levied, or collected in any manner.</p> <p>“ By a further Act of Assembly, approved February 2, 1854, commonly called the Consolidation Act, the aforesaid corporation of the guardians of the poor was abolished, and all their estate vested in the corporation of the city of Philadelphia, created by that act. Among the estate of the said corporation of the guardians of the poor, which passed to the city of Philadelphia by force of the said act, was the reserved fund before mentioned, which the latter corporation holds for the use of those entitled thereto.</p> <p>“ If the court shall be of opinion that the loan before mentioned was liable to the said tax, and to be deducted and retained by the treasurer as aforesaid, then judgment to be entered in favour of the Commonwealth for the sum mentioned in the said schedule; and if of a contrary opinion, then judgment to be entered in favour of the city of Philadelphia.”</p> <p>The statement annexed showed the receipt of the tax from 1st July, 1845, till 1st July, 1854, both inclusive, amounting to $18,286.38.</p>

This was a scire facias upon' a municipal claim brought in the name of “The Commissioners and Inhabitants of the District of Moyamensing,” or “ The City of Philadelphia,” to the use of Matthew Thompson, against George B. Wood.

<p>Error to the District Court of Philadelphia.</p> <p>This was' an action of ejectment brought September 2, 1854, by Charles C. Jackson against Sarah Ann Martin, to recover the undivided half part of a messuage and lot of ground on the north side of Mulberry (Arch) Street, in the city of Philadelphia.</p> <p>In 1813, Christian Bagendorff conveyed the one-third part of the premises in question to Francis Le Campion and Elizabeth his wife, their heirs and assigns for ever. In 1818, under proceedings in partition, the remaining two-thirds of the property were adjudged by the court to Le Campion and wife, and a deed was made to them, therefor, by the sheriff, April 15, 1818; the record showing that they elected in open court to take the same in that way, and that the respective parties were represented by their counsel: Nathan R. Potts, Esq., appearing for Le Campions, plaintiffs, and Joseph R. Ingersoll, for the defendants.</p> <p>Francis Le Campion died in 1823, having made his will, by which Elizabeth, his wife, was appointed executrix. The will directed either a house in Front Street, occupied as a bake-house, or the property in question, to be sold for the payment of debts. It also devised to her another house in Front Street, and gave her one-half of his personal estate. The residue of the estate was given to Sarah Ann Hubbs, now Sarah Ann Martin. The executrix elected to sell the bake-house, and made sale accordingly.</p> <p>On the 2d April, 1832, Elizabeth Le Campion executed a mortgage, payable in one year, in favour of George Knorr, for the undivided half part now in controversy. Judgment in a sei. fa. on this mortgage was obtained in February, 1850. An alias levari facias subsequently issued, under which the property in dispute was sold by the sheriff to Jackson, the plaintiff below, on May 5, 1851, and deed-poll executed June 14, 1852.</p> <p>On the 9th of April, 1851, Elizabeth Le Campion brought an action of ejectment against Sarah Ann Martin, in which a rule of reference was entered and award found, 12th December, 1853, in favour of defendant, from which no’ appeal was ever taken.</p> <p>On the part of Sarah Ann Martin, the defendant below, it was contended that the evidence showed that the property had been originally purchased with her husband’s money, and that although the deed was to both him and his wife, a resulting trust arose in his favour; that he had treated the property by his will as his own and disposed of it as such; that Elizabeth Le Campion, by acting as executrix and taking a benefit under the will, was estopped from disputing its provisions; that Mrs. Martin, the defendant, had entered into possession of the premises, upon the death of Francis Le Campion, and had continued in the adverse possession thereof so as to bar this action; that she was in possession at the time of the execution of the mortgage to Knorr, and Elizabeth Le Campion was out of possession; that the mortgage was negotiated by Mr. Potts, as agent of the mortgagor and mortgagee, with notice of Mrs. Martin’s claim; that public proclamation of her claim had been made at the sheriff’s sale at which Jackson purchased; and that these facts constituted notice to the mortgagee and to Jackson.</p> <p>To sustain adverse possession, Mrs. Martin gave in evidence receipts to tenants for rent of the premises paid to her. Two of these receipts, to F. Sheble & Co., who occupied the premises in June, 1833, were given after the date of the mortgage, and bearing date respectively November 6th, 1832, and December 6th, 1832, were signed: “ For Elizabeth Le Campion, S. A. Hubbs.” Before that time, from -the 29th of September, 1829, until the 29th of March, 1832, the premises were in the possession of tenants occupying under a lease from Mrs. Le Campion, the lease having been written by Mrs. Martin, then Miss Hubbs. It was also in evidence, that Mrs. Le Campion had, at different times before the execution of the mortgage, handed the rent received from tenants by her, to Miss Hubbs, and also declared that it belonged to her.</p> <p>Mrs. Martin, after proving Mrs. Le Campion’s mental incapacity to testify, offered to. prove her declarations explaining how the two receipts mentioned above came to be taken in that form. The. offer was rejected.</p> <p>The instruction of the court to the jury was requested by the defendant upon the following points :—</p> <p>1. If this property was originally purchased with the husband’s money, and the deed was taken in its present form, without the knowledge or assent of the husband, the wife became a trustee for him.</p> <p>2. If the wife took out letters testamentary, and entered upon the execution of her trust, as executrix, the law will not allow her, while acting as 'such, to assume a position antagonistic to the trust, and create an estate in derogation of the same.</p> <p>3. If the wife took any benefit or accepted any devise or legacy under the will, or acquiesced in its provisions, she is estopped from disputing its validity. ,</p> <p>4. If either the plaintiff or the mortgagee, prior to the purchase or mortgage, had notice or knowledge that the property was purchased with the husband’s money, or that the wife was acting in hostility to her trust as executrix, or that she had taken a benefit under the will, or had notice or knowledge of other equities of Mrs. Martin against Elizabeth Le Campion, these defences may be made, in the present action.</p> <p>5. The possession of the premises by the defendant, and the fact that the mortgagor was not in possession at the time of the execution of the mortgage, was legal notice to the mortgagee, and the pendency of the ejectment of Le Campion v. Martin’s tenant major at the time of the sheriff’s sale, was. notice to the plaintiff, and whatever else would put the mortgagee or plaintiff upon inquiry which would lead to knowledge of the adverse claim, is notice.</p> <p>6. The tenancy of the premises by the plaintiff under the defendant, prior to the purchase, or the possession of the premises by the defendant at the time of the purchase, or the public proclamation at the time of the sheriff’s sale, is notice to plaintiff of defendants’ claim, if notice is necessary.</p> <p>7. The adverse possession of the premises for twenty-one years by the defendant, is a bar to the action.</p> <p>The court, without answering specifically the points presented, charged the jury, that there was no evidence whatever of notice to Knorr; that he was not bound to look for the will of Francis Le Campion; that notice to Mr. Potts was not notice to Knorr, and that there was no question of fact connected with the defence under the statute of limitations; and also, that Sheble went in -as .the tenant of Mrs. Le Campion, and that the receipts afterwards signed by Miss Ilubbs alone, could not alter the- lease, and give her a title, when at first she was but an agent. A verdict was. directed to be entered in favour of the plaintiff.</p> <p>The errors assigned -were :</p> <p>1. That each of the several points presented had not been spe~. cifieally answered.</p> <p>2 and 3. To the charge of the court.</p> <p>4. The exclusion of Mrs. Le Campion’s declarations. (Neither a copy of the bill of exceptions, nor its full substance, was quoted in connexion with this specification.)</p> <p>5. The direction to find in favour of plaintiff.</p>

This was a scire facias upon a mechanic’s lien, filed by Abraham W. Rand, against Charles Harlan, owner, and Lewis W. Leeds, contractor. Harlan, the owner, contracted with a builder, named Singerly, to furnish the materials, and erect the building against which the lien was filed. Before the building was finished, Leeds proposed to Singerly to put into it a heater of a new construction, to warm it throughout.

This was an action of covenant, brought by Joseph Battin and Samuel Battin, trading under the firm of J. & S. Battin, against Marcus G. Heilner and Percival Heilner, trading under the firm of M. G. & P. Heilner.

<p>In an action on a judgment for costs entered in a court of competent authority in a sister state against a plaintiff, such judgment cannot be impeached, because the exemplification of the record does not show a warrant of attorney to institute the suit.</p> <p>Where the presumption of payment of such a judgment depends upon time alone, nothing short of twenty years is sufficient.</p> <p>Evidence is not admissible that the defendant, during ten years since the judgment was entered, was a man of wealth.</p> <p>Although an exemplification of a record does not show a taxation of costs, it will be presumed, where a judgment is entered stating the aggregate of the costs.</p> <p>Interest is not allowed on costs upon a judgment, unless they have been actually paid, and then only from the time of payment. ■</p>