Volume 28 — Pennsylvania State Reports

<p>When a statute prescribes a mode for inquiring into and determining the regularity, and legality of a municipal election, and the returns made thereof, the remedy provided by the statute must be followed, to the exclusion of the common law mode of redress.</p> <p>And when the judgment of a particular tribunal is'made final on the merits, they cannot be drawn in question in another court, in a proceeding different from the statutory mode, no more than the decision of the constituted tribunal could be.re-examined in a collateral proceeding.</p> <p>The Commonwealth is bound by statutes, made to prevent tortious usurpations, and to regulate and preserve the right of all elections.</p> <p>The provisions of the Act of the 2d February, 1854, incorporating the city of Philadelphia, prescribing the manner and form of inquiring into and determining elections for municipal officers, excludes all other remedies for matters which might have been investigated in the mode prescribed by that act.</p>

<p>Where the pleas of autrefois convict and not guilty, are both submitted to the jury at the same time, and the jui-y find the defendant guilty, but render no verdict upon the plea of autrefois convict, it is error to enter judgment on the verdict.</p> <p>On such a plea, although the court may influence and in some cases control thejury, it is a question'which they alone must decide.</p>

<p>Executors, when empowered by the will to sell real estate, may maintain ejectment for it.</p> <p>Where a testator authorized his executors after they obtained knowledge of the condition of his estate, to convey at their discretion lands to his children as each might select, the children have no estate in the land until it is conveyed to them, apd one of them cannot take a tract of the land without the consent of the executors, nor maintain possession against them.</p> <p>Unless executors act in bad faith in the exercise of the discretionary powers given to them by the will, a court of equity will not control them. And when occasion demands such control, it belongs exclusively to the Orphans’ Court.</p>

<p>Appear from tbe Court of Nisi Prius.</p> <p>A bill in equity was filed in the Supreme Court at Nisi Prius, by Margery Price and others, claiming to be the heirs and next of kin of Thomas Smith, deceased, against Ebenezer Maxwell and Joseph Seattergood, executors of the last will and testament of the said Thomas Smith, deceased, and also against Samuel Bettle and others, being some of the persons or committee having charge, management, and control of “ The Friends’ Boarding School at West-Town.” This bill of complainant set forth in substance:</p> <p>1. That Thomas Smith died upon the 30th April, 1856, unmarried, and without issue, and seised and possessed of a large amount of real and personal property.</p> <p>2. That on the 10th April, 1856, he made his will, by which he devised and bequeathed, after payment of debts, his property to defendants, Maxwell and Scattergood, his executors, in trust for the benefit of “The Friends’ Boarding School at West-Town”; and that the co-defendants are persons having charge of that institution, and represent all the interests in controversy.</p> <p>3. That “The Friends’ Boarding School at West-Town” is a religious and charitable institution within the state of Pennsylvania.</p> <p>4. That the complainants are the parties who would have been entitled to the real and personal estate, if the said Thomas Smith had died intestate.</p> <p>And charging—</p> <p>That inasmuch as the said Thomas Smith died unmarried, and without issue, within one calendar month after the execution of the said will, devising and bequeathing the real and personal property to a charitable and religious institution, they, the complainants, are entitled to so much of the same as is so bequeathed and devised.</p> <p>And praying—</p> <p>An account, and a decree that the complainants are so. entitled, and an order upon the executors to transfer the same to them, in such proportions as they are entitled, and for further relief.</p> <p>The answer of the defendants</p> <p>1. Admits — the making of the will, by Thomas Smith, on the 10th of April, 1856, and his death on the 20th April, 1856.</p> <p>2. Denies — that “ The Friends’ Boarding School at West-Town” is a religious or charitable institution, — and avers the same to be “A literary institution in the state of Pennsylvania."</p> <p>3. Neither admits nor denies the pedigree of complainants.</p> <p>4. Avers — that Thomas Smith, on the 3d of August, 1841, made a certain “ other last will and testament,” and avers that the real estate therein mentioned is part of that of which Thomas Smith died seised.</p> <p>5. Avers — that even if the devise in the will of the 10th of April, 1856, is invalid, that it is no revocation of the devise in the “former last will,” of the 3d August, 1841; and that the devise in the last-mentioned will is valid.</p> <p>6. Avers — that the devise in the will ,of April 10th, 1856, is valid, and not within the meaning of the Act of 26th April, 1855.</p> <p>7. Admits the value of the estate to be</p> <p>dollars: that Smith died unmarried, and without issue.</p> <p>8. Gives a statement of the origin, &c., of “ The Friends’ Boarding School at West-Town” — referring to certain exhibits attached to the answer.</p> <p>9. Admits debts of decedent to the amount of about $22,000.</p> <p>A general replication was filed, and the cause was referred to David Webster, Esquire, as examiner.</p> <p>The following is a copy of the will of 10th April, 1856:—</p> <p>“ Be it remembered that I, Thomas Smith, of the city of Philadelphia, late lumber merchant, being now in declining bodily health, but of sound disposing mind, memory, and understanding, do make and ordain my last will and testament, as follows, and thereof do appoint my friends, Ebenezer Maxwell and Joseph Scattergood, the executors — that is to say:</p> <p>“ I give, devise, and bequeath all my estate, real and personal property, and effects, whatsoever and wheresoever, unto my executors aforesaid, their heirs, executors, administrators, and assigns for ever; — In trust, nevertheless, in the first place, to pay and satisfy all my just debts and liabilities of every kind; and to the extent which may be found necessary and expedient for this purpose of my will, I do hereby fully authorize and empower my said'executors, by public or private sale, at discretion, to sell and dispose of any part or parts of my real estate, and to grant, convey, and assure the same to the purchaser or purchasers in fee simple, without liability on the part of any purchaser to see to the application of the purchase-money. And after all my just debts and liabilities shall have been paid and discharged, then as respects all the residue of my estate, both real and personal, in trust for the uses and purposes of Friends’ Boarding School at West-Town, and to make, execute, and deliver such deeds, conveyances, assignments, and assurances of the same or any part thereof, as the Yearly Meeting’s Committee, for the time being charged with the care and management of the said boarding school, by any minute or minutes of their proceedings shall order, direct, and appoint, and for no other use or purpose whatsoever. Provided always, and it is my will and direction, that the residue of my estate hereby given and devised for the uses and purposes of the said boarding school at West-Town, to the extent of sixty thousand dollars of the value thereof, shall coi^titute a permanent fund, the yearly income of which shall be applied exclusively to the increase of the salaries of teachers, both male and female, who are and shall be from time to time employed as such at the said boarding school.</p> <p>“ I revoke all wills and testaments by me heretofore made, and declare this only to be and contain my last will and tqgtament.</p> <p>“ In witness whereof I have hereunto set my hand and seal this Tenth day of the Fourth' month, in the year of our Lord one thousand eight hundred and fifty-six (1856).</p> <p>Thomas Smith.</p> <p>“ Signed, sealed, published and declared by Thomas Smith, as and for his last will and testament, in the presence of us, who, at his request and in his presence, have subscribed our names hereto as witnesses.</p> <p>Thos. Williamson,</p> <p>P. Williamson.</p> <p>By the will of the 3d August, 1841, the testator devised to Charles Roberts and Thomas Evans, and the survivor of them, and the heirs and assigns of such survivor, all his real estate, particularly describing it, and being part of the property devised in the will of 10th April, 1856, under and subject to the payment of the yearly rents and mortgage debts, with the interest, charged on such estate.</p> <p>The devisees named to hold such real estate in trust for such uses and purposes, and to make such deeds of conveyance of the said premises, or any part thereof, and to grant, convey, and assure the same unto such persons, and for such estates and uses as the committee for the time being, having charge of the boarding school, under the care of the Yearly Meeting of Friends of Philadelphia, known by the name of “ Friends’ Boarding School at West-Town,” shall by their minutes or by any minute of their proceedings appoint.</p> <p>A bequest to William Parker of thirty-two shares of the capital stock of the Kensington Bank.</p> <p>Bequest and devise to testator’s mother, Grizzell Smith, absolutely and in fee of the residue of his estate, real and personal, after his “ debts (other than mortgage debts) and funeral expenses [should] be first paid and discharged out of the same.”</p> <p>Lastly — Appointment of said Charles Roberts and Thomas Evans to be executors.</p> <p>On the hearing before the examiner, Passmore Williamson and Joseph Parker, the subscribing witnesses to the will of 1841, neither of whom could distinctly remember the circumstance of the execution, but severally testified to their signatures as witnesses and that of the testator. Passmore Williamson further testified that both wills were written by witness’s father, Thomas Williamson, and that the will of 1841 was enclosed in a sealed envelope, and that he knew the same to be in Thomas Williamson’s possession from 1846, and that he had received it from him to produce before the examiner, and that the seal was broken at the time th§ other will was being prepared.</p> <p>On this envelope the following endorsement was written in pencil: “ Revoked will of Thomas Smith. Charles Roberts and Thomas Smith, executors.” On the will the following endorsement was written in pencil: “ Sixty thousand of said estate to he a permanent fund, the income of which to he applied to the increase of the salaries of teachers. Ebenezer Maxwell and Joseph Scattergood, executors.” These endorsements were in the handwriting of Thomas Williamson. The estate was valued by the appraisers at $112,500.33; less commissions and expenses.</p> <p>The school to which this devise was made was established by the yearly meeting of Friends, held in Philadelphia, for Pennsylvania and New Jersey, in October and November, 1794, and the school had continued under the charge and care of the same, or a committee appointed by such meeting.</p> <p>The report of a committee appointed by the yearly meeting, embraced the forms of a bequest to the institution; a devise of real estate for its use, and of a subscription to be opened for its establishment and support. They also reported a set of rules and regulations to govern in the admission of the pupils to the school, and in conducting its affairs and imparting its instructions. These rules provide for a committee on instruction, who was to have the selection of the books to be used in the school, and the system of instruction to be adopted.</p> <p>A committee on admissions, to whom all applications for the admission of pupils, to be paid for out of the gratuitous funds, were to be made. A committee on accounts. A superintendent, who, under the direction of the committee, was to have the general supervision and control of the institution. The duties of the teachers are defined, and among those the following:—</p> <p>“As the objects of the yearly meeting in establishing the institution is to afford to the youth of our religious society, placed therein, an education consistent with its principles, the teachers are expected to be vigilant and discreet in requiring a compliance with the rules, and endeavour, by example and precept, to exercise such a religious care and influence over the pupils, as will induce a love and esteem for the doctrines and testimonies of our religious society, on the part of those under their charge.”</p> <p>The Scriptures were required to be frequently read. And Bevan’s View of the Christian Religion, as professed by the Society of Friends, and Barclay’s Catechism, among others, were designated by the committees and used in the school as text-books in imparting religious instruction.</p> <p>Under this state of facts, the complainants contended that the devise and bequests to this school, contained in the will of Thomas Smith, of the 10th of April, 1856, were to a charitable use, and therefore void, under the lith section of the Act of 26th April, 1855, because the will in which they were contained was executed by the testator within one calendar month of his death. That' section is as follows:—</p> <p>“ Section 11. That no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will,'attested by two credible, and at the time, disinterested witnesses, at least one calendar month before the decease'of the testator or alienor, and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee next of kin, or heirs, according to law: Provided, That any disposition of property within said period, bona fide made for a fair valuable consideration, shall not be hereby avoided.”</p> <p>The defendants maintained that the devises in this will were not, in the true sense and meaning of this law, “ in trust for religious or charitable uses.” But if this will was therefore void, the will of 1841 remained unrevoked, and the appellees would be entitled to the property under it.</p> <p>The judge presiding at Nisi Prius dismissed the bill, and the complainants appealed to the court in banc.</p>

<p>This was an action of ejectment by Joseph Walker and others, heirs at law of Joseph Walker, deceased, against William Walker,</p> <p>Err,or to the Common Pleas of Chester county. to recover twenty acres of land in Chester county. The land in dispute was part of a larger tract, of which Joseph Walker died seised on the 2d day of November, 1818. The defendant claimed under a devise in the will of Joseph Walker, deceased, to his son Enoch Walker, and by regular conveyances from the devisee to himself.</p> <p>The will of Joseph Walker was as follows:—</p> <p>“ I, Joseph Walker, of Tredyffrin township, in the county of Chester, and state of Pennsylvania (farmer), being in good health, though almost deprived of sight, but being of sound mind, memory, and understanding, think it necessary at my advanced age to settle and adjust my worldly affairs, by making and ordaining this my last will and testament, in manner and form following:—</p> <p>“ I order and direct all my just debts and funeral expenses to be paid by my executors, to be hereinafter appointed. I give and bequeath unto my son, Isaac Walker, during his natural life, the farm he now occupies, described as follows, beginning — (here follows a description of the premises), supposed to contain about one hundred and nine. acres, be the same more or less, together with the privilege of the water to take and convey the same through my other land, in the same manner it is now used, three and a half days in every week for ever, with the privilege of taking and using in the same manner waiter of Rohoboth spring, through the meadow hereinafter to my son Thomas, and with privilege to clean the watercourse when necessary. But it is my will and I do hereby direct my son Isaac to lay off and convey to proper persons, six perches in breadth along the east side, two along the south side of the graveyard lot, until it comes straight with the west end of the present burying ground, for the use and convenience of Friends belonging to that meeting, after the decease of my son Isaac Walker. I give and bequeath this described lot of land unto my grandson Joseph Walker, son of Isaac Walker, to him, his heirs and assigns, for ever, subject to the following legacies to be paid when the said tract of land comes into the said Joseph’s possession. First, to my son Lewis Walker, two hundred pounds, to the surviving children of my daughter Naomi two hundred pounds, and to my granddaughters Anna James and Naomi Rhoads, twenty pounds each, and twenty pounds to my great-grandson Joseph Rowland, if he attain the age of twenty-one, but if he should die before that age, it is to be paid to the said Anna James and Naomi Rhoads equally. And one hundred pounds to the heirs of my son Joseph Walker, and with twenty pounds unto each of my grandchildren Walker, Sarah, and Eli Yarnall. I give and devise unto my son Thomas Walker, and to his heirs and assigns, subject to the following legacies, all my mansion-house and farm of one hundred acres or thereabouts, conveyed to me by my father, and the mill, and I also give, devise, and confirm to him, my said son Thomas, and to his heirs and assigns for ever, the ten acres of land bounded on the east corner of the above described tract devised to my son Isaac and grandson Joseph, and on the county line and Reese Howell’s land, and I also give, devise, and confirm to him, my said son Thomas, and to his heirs and assigns for ever, all that tract of ninety acres of land or thereabouts, lying between the tract before devised to my son Isaac and grandson Joseph, and the tract hereafter devised to my three sons, Jesse, Lewis, and Enoch, being part of the tract originally of three hundred and sixty-eight acres of David Powell's land, for which last-mentioned two tracts, that is to say, of ten acres and of ninety acres I have given to my said son Thomas, assurances of conveyance to him in fee simple by will or by deed, and I give unto my son Thomas, his heirs and assigns, nine acres off the west end of the hill land, which I bought of Isaac Potts, and I do hereby charge the mansion-house, farm, and mill given to my son Thomas, with the payment of seven hundred and fifty pounds to my son Enoch Walker, and with the sum of five hundred and fifty pounds to my son Lewis Walker, and with the payment of one hundred pounds to my daughter Naomi Thomas’ children, and with seven hundred and fifty pounds to my son Jesse Walker, and with one hundred and eighty-seven pounds ten shillings to my grandson William Walker, son of Jesse Walker, and finally with the payment of all my debts and dues and demands justly owing by me, if my personal estate, which I pledge for the same, should not prove sufficient to satisfy the same. I give and devise to my son Jesse Walker, his heirs and assigns, twenty acres of land, beginning at the corner of the mansion-house farm granted to Thomas Walker, reserving to said Thomas the privilege of the tail race continuing through the land, thence along Beaver’s line down to the line of the ninety acres tract granted to Thomas, thence along his line so far that on running a line back parallel with Beaver, it will contain twenty aeres. And I do hereby grant to my son Jesse, eight acres of the hill land adjoining the nine acres granted to my son Thomas, which I bought of Isaac Potts. And I do hereby grant and devise to my son Lewis Walker, twenty acres of land adjoining and running parallel with the twenty acres granted to my son Jesse, with eight acres of the hill land adjoining on my son Jesse’s part, to him, his heirs, and assigns. And I do hereby grant and devise to my son Enoch Walker, twenty acres of land adjoining and parallel with the twenty acres granted to my son Lewis, which will extend to the Swede’s ford, be the same more or less, and I grant unto my son Enoch the remaining part of the hill land bought of Isaac Potts, it being eight acres more or less; the above three grants of twenty acres are to include all the land laying between the ninety acre tract granted to Thomas Walker and the mansion-house tract, he the same more or less. Thomas to have the privilege of continuing the tail race through the tract granted to my son Jesse. I also give and devise to my son Jesse Walker, for and during his natural life, the dwelling-house, barn and mill or mills, at Laxawaxen falls in Pike county (formerly Wayne), with the ten acres part of the tract originally granted to William Halbert and Thomas Griffith tract, which lays on both sides of the Laxawaxen creek near or eontidious to the lower mills, and also that adjoining tract in said county, being No. 2, in the Marshall deed to Thomas Cadwalader, Esq., originally granted to Mordecai Roberts, for four hundred and thirty-nine acres and eighty perches, thence from the upper corner of said tract to the north-west corner of the tract granted to George Morton along the line of said tract to the north-east corner, thence along the east end of said tract and that line continued until it strikes the Griffith tract, at his decease, to his wife Catharine Walker, if she be living, for and during the term of her natural life, provided she continues his widdotv; but in case she should marry, my executors are to pay her two hundred pounds in lieu thereof, which they are to collect from the said property, and I give and devise the same and every part thereof to their son William Walker, his heirs and assigns, and as far and conserning all the residue and remainder of my estate at Laxawaxen in the county aforesaid, conveyed to me by Thomas Cadwalader and Mary his wife, I order and direct my executors or their survivors, or their executors or executors of each survivor, to demise the same at such rent for such term or terms as they may think most beneficial, or dispose of the same in fee simple if it should be by them deemed advisable, and which I hereby authorize them to do, and after deducting all proper charges to divide the rents or amount of sales as may be in eight equal parts, one part whereof I give to my son Isaac, one part to my son Thomas, one part to my son Lewis, one part to the heirs of my son Joseph, one part to my son Enoch, one part to my daughter Naomi Thomas’ children, one part to my daughter Zilla’s children, and one part to my daughter Priscilla’s children, equally; the children of such as may die previously, taking the share of their respective parents equally. I release my son Joseph from all debts due me, and I also release my son Enoch from all debts due me, and it is my express will and intention that the devises and bequests herein-before given to my respective sons and daughters, as well as any grants by me given, shall be taken and received upon this consideration only that they do respectively release and exonerate my estate of and from all debts due and demands, of every sort whatever, for labouring service or otherwise, by them or any of them claimed of me, or to be claimed of my executors; and I do hereby appoint Isaac Thomas and Enoch Walker, my sons, executors, of this my last will, hereby revoking all former wills by me made, and declaring this to be my last will and testament. In witness whereof I, the said Joseph Walker the testator, have hereunto set my hand and seal, this thirteenth day of twelfth month, 1817.</p> <p>Joseph Walker, [seal.] -</p> <p>Signed and sealed in the presence of us,</p> <p>Thos. J. Walker,</p> <p>Wm. Webb.”</p> <p>The plaintiffs contended, that the devise to Enoch Walker of the premises in dispute, was but of a life estate, and showed that he died in March, 1854, before the bringing of this suit. The facts were agreed upon by the parties in the nature of a special verdict.</p> <p>The court below (Haines, P. J.) entered judgment for the defendant.</p> <p>The plaintiffs removed the cause to this court, and assigned here for error, that the court below erred in entering judgment for the defendant.</p>

<p>The sale of the real estate of a decedent, by his executor, for the payment of debts under a power contained in the will, does not divest the lien of a judgment entered in the lifetime of the testator.</p> <p>A sale by an executor under a testamentary power, is not a judicial sale.</p>

<p>A testator, after devising to his wife a house and lot for life or widowhood, and bequeathing to her a legacy of fifteen thousand dollars, also for life or widowhood, upon condition that she received them in lieu of her provision under a marriage settlement, bequeathed various legacies to his brother, nephews, nieces, and step-son by name, giving also certain bequests in the fourth, fifth, and sixth clauses of the will, to religious and charitable uses, and added to the same will the following residuary clause. “ All my real and personal estate not hereby bequeathed which I may have at my death, I leave to be equally divided as per ratio in the bequests herein made among my heirs and relatives — the fourth, fifth, and sixth bequests not inclusive.” Held,</p> <p>1. That the widow and step-son were entitled to share in the residue, in proportion to the value of the devises and legacies given them in the former part of the will.</p> <p>2. That the testator used the words “ heirs and relatives” not in their legal sense, but as designating the objects of his bounty under the will.</p> <p>3. The testator having in clear and distinct language designated which of the legatees were to be excluded from the residuary estate, it cannot be inferred that he intended to exclude others not mentioned.</p> <p>4. That the devises and bequests in the will to the widow, being for life or widowhood, she will take but the same interest in the residuum.</p>

This was an appeal, by Anne E. Biddle, from the decree of the Orphans’ Court, confirming the report of an auditor making distribution of the balance in the hands of Henry J. Williams and George W. Biddle, Esquires, executors of Mary Biddle, deceased.

Caleb Perkins made his last will and testament on the 24th March, 1841, and died shortly afterwards.

This was an action of ejectment by Deininger et al., executors of Andrew Beck, deceased, against Wm. Graybill and Philip Swartley. On the 3d of April, 1826, the executor of one Redline sold the land in question to Philip Swartley, under whom both parties in this action claimed title.

<p>Certificate from Nisi Prius.</p> <p>On the 30th January, 1855, a bill in equity was filed by Sir Thomas Whichcote, administrator of Marianne Whichcote, his late wife, and in his own right, against Hartman Kuhn, Henry Becket, and John B. Newman, executors- of James Lyle, deceased, in which was set forth, that James Lyle died on the 10th August, 1826, having first made his last will and testament, dated 24th July, 1826. That by the said will the testator, after appointing the respondents his executors, and empowering them to make sale and conveyance of any part or the whole of his real and personal estate, devised and bequeathed all his estate of every kind and description to such executors, their heirs and assigns, in trust to make as nearly as might be a division of such estate, into two equal parts, and that one of such parts to be held by them in trust for the separate use of testator’s daughter, Mary Becket, during her life, and that free and clear of debts, liabilities, engagements, or contracts of her husband, in every respect as if she were a feme sole, with the right to take, receive, enjoy, and dispose of the interest, rents, issues, and profits at her sole will and pleasure, during her natural life, and after the death of Mary Becket, then in trust as to one moiety of the equal part of the one-half bequeathed to her for life to educate, maintain, and support the child or children of Mary Becket, whom she might have under the age of twenty-one years, until the arrival of such child or children at twenty-one years respectively, then in trust of the moiety of such half if there should be but one child, or a proportional part if more than one, for the sole and separate use of such child or children respectively, their heirs, executors, administrators, and assigns for ever; and that free and clear, if females, of any debts, liabilities, or engagements of their husbands, and subject, as to the income thereof, to their own and absolute control. And as to the other moiety of the equal half part of his estate devised and bequeathed to Mary Becket for life, in trust to apply and appropriate the rents, interest, and income of it in such manner and to such objects as Henry Becket, the husband of Mary Becket, might from time to time direct, limit, and appoint during his life, and from and after his death then in trust for the child or children of Mary Becket, their heirs, executors, administrators, and assigns, in like manner, to all intents and purposes, and subject to the same provisoes, restrictions, and limitations as were mentioned with regard to the moiety of the equal half part of his estate thereby firstly disposed of after the death of his daughter, Mary Bechet.</p> <p>As to the remaining equal half part of his estate, he devised and bequeathed it to the same persons in trust for his daughter, Ellen Kuhn, for her separate use for life, and subject to the same provisions and limitations as the part devised and bequeathed to Mary Bechet. That Mary Bechet died on or about the 21st day of November, 1827, leaving her husband, Henry Bechet, and two children, Marianne Bechet and Hamilton Bechet, both of whom were then in their minority, her surviving. That Marianne being still a minor, in contemplation of marriage then shortly intended between her and Sir Thomas Whicheote, a subject of Great Britain, and domiciled in England, certain articles of agreement or marriage settlement bearing date the 9th day of July, 1839, for the purpose of securing and settling the fortune of the said Marianne Bechet, were duly executed, in England, by and between Sir Thomas Whicheote of the first part, and by Marianne Bechet and Sir John Bechet, brother of Henry Bechet, and uncle of Marianne, of the second. And by Lord Villiers and Christopher Turner, Esquire, trustees under the settlement of the third part. In this marriage settlement it was recited and agreed as contained in the following abstract or synopsis:—</p> <p>“ And whereas, under the will of the said James Lyle, deceased, the maternal grandfather of the said Marianne Bechett, she, the said Marianne Bechett, is entitled in possession to the income of one equal fourth part of the real and personal estate of the said testator, consisting of landed property situated at or near Philadelphia aforesaid, and of stoch in the public funds of the said United States, moneys due and owing on the bonds of persons resident in the said United States, and other property, which, or the securities of the same, and the evidences of the title thereto, are at Philadelphia aforesaid, or elsewhere in the said United States, and the said Marianne Bechett is in lihe manner entitled in expectancy, after the death of her said father, to the income of one other equal fourth part of the said real and personal estate of the said James Lyle, deceased, and is also entitled in expectancy, on the decease of her said father, and on the decease without issue, of her brother Hamilton Bechett, or on one of these events, or on some other event or events, to the remaining two-fourth parts of the income of the said real and personal estate, but by reason of the said will of the said James Lyle, being in the said United States, and no copy or abstract thereof being in this country, the particulars of the said property and the extent of the interest of her the said Marianne Bechett, of and in the same, and of any trusts or limitations to which the same may be subject, are not known to the parties to these presents. And whereas, upon the treaty for the said intended marriage, it was proposed and agreed in consideration thereof, that the said Sir Thomas Whichcofce should settle his estates (consisting of divers manors or lordships capital and other messuages, lands, tenements, and hereditaments situated in the county of Lincoln), in such manner as to secure to the said Marianne Beckett for her life, in case the said intended marriage should take place, and she should survive the said Sir Thomas Whichcote, an annuity or yearly rent-charge of ¿21500, to be issuing out of the said estates or some part thereof, and subject thereto, and to such charge for the portions of younger children of the said intended marriage, in the event of there being four or more such younger children as hereinafter mentioned, that the said estates might stand limited to the use of the first and other sons of the said intended marriage, successively in tail mflJe, and it was also proposed and agreed by and on the part of the said Sir John Beckett and Marianne Beckett, in consideration of the said intended marriage, and of the settlement so to be made of the estates of the said Sir Thomas Whichcote, that such covenants or articles of agreement should be entered into for the settlement of all the fortune of her, the said Marianne Beckett, in possession, reversion, remainder or expectancy, and whether vested, contingent, executory or otherwise, as hereinafter expressed and contained. To the intent that the income of the said fortune should, during the joint lives of the said Sir Thomas Whichcote and Marianne Beckett, be charged with the payment of an annuity of £500 to her the said Marianne Beckett, for her separate use by way of pin-money, and subject thereto, should go and be enjoyed by the said Sir Thomas Whichcote, and should after the decease of either of the said parties, be enjoyed by the survivor of them for his or her life, and that after the decease of such survivor, the whole of the said fortune should be settled upon or for the benefit of the children of the said intended marriage (other than an eldest or only son for the time being, entitled to the first estate of inheritance in possession or in remainder of and in the said estates of the said Sir Thomas Whichcote). And it was further proposed and agreed, that in case the number of the younger children, between whom the said fortune of the said Marianne Beckett should become divisible, should be four or more, the sum of ¿210,000 should be provided, to be raised out of the said estates of the said Sir Thomas Whichcote, to be added to the said fortune of the said Marianne Beckett, for the augmentation of the portions of the said younger children. And whereas, the settlements so proposed and agreed to be made of the estates of the said Sir Thomas Whichcote are or are intended to be effected by other indentures already prepared, and bearing or intended to bear even date with these presents.”</p> <p>“The said parties of the first and second parts were therefore within one year, to be computed from the day of the solemnization of the said intended marriage, at the costs and charges in all things of the said Sir Thomas Whichcote, to settle and assure all said real estate, lands, tenements, hereditaments, and premises, moneys, securities for money, stock in any public funds, or fund, company, or companies’ debts, bonds, bills, and securities whatsoever, and other personal estate of, in, or to which the said Marianne Beckett now is, and also of, in, or to which she or the said Sir, Thomas Whichcote in her right shall, at the time of making such settlement, be seised, possessed, interested, or entitled, whether at law or in equity, and whether in possession, reversion, remainder, or expectancy or otherwise, and whether vested, contingent, or executory, present or future, unto, and to the use of them, the said George A. F. Viscount Villiers and Christopher Turner, or the survivor of them, and their or his heirs, executors, administrators and assigns, upon and for such trusts and purposes as are hereinafter mentioned concerning the same, that is to say, — in case it shall appear that the said fortune of the said Marianne Beckett, or any part thereof, is wholly or partially subject to any settlement or trust for the sole and separate use of her the said Marianne Beckett, free from the control of any husband, or to any settlement or trust upon, or for the benefit of any child or children of her, the said Marianne Beckett, then upon such trusts and in such manner as shall be proper and sufficient for confirming such settlement and trusts, for the sole and separate use of her, the said Marianne Beckett, with or without restriction upon alienation by her, as the case may be, and upon or for her child or children, or any of her children, as to all or such part or parts of her said fortune as shall appear to be subject to such settlement or trusts, according to the true intent and meaning of such settlement, or settlements and trusts respectively, and to the full extent thereof. And as to the whole of the said fortune of the said Marianne Beckett, in case it shall appear that the whole thereof is free from any such settlement or trusts as aforesaid, or as to such part or parts of the same as shall appear to be free from such settlement or trusts, and also as to the whole or such part or parts of the same as shall appear to be subject to any such settlement or settlements, or trusts (subject to the same and to such confirmation thereof as hereinbefore mentioned), upon and for the trusts, intents and purposes, and with, under, and subject to the powers, promises, declarations and agreements hereinafter declared, expressed and contained.” Amongst which is a power to sell real estate and to collect the personal estate, and to convert the whole thereof into money, and to invest the balance, after payment of all charges, in the names of the trustees in the public stocks or funds of Great Britain, or at interest in or upon any government or real securities in Great Britain, and out of the income to pay £500 sterling, yearly and every year, to the said Marianne Beckett alone, and without the said Sir Thomas Whichcote, her intended husband, notwithstanding her coverture, and as if she were sole and unmarried, for her own, sole, and separate use, as and for her pin-money. The payments to be made quarterly. The residue to be paid to Sir Thomas Whichcote, and after the decease of either of them to permit the survivor to take the dividends, interest, income, &c., for and during the term of his or her natural life, and after the decease of the survivor there are provisions made for the issue of the intended marriage which it is not necessary to state. And it was provided further,</p> <p>“ That in case there shall be no child or children of the said intended marriage, or in case the said trust premises or any part thereof, shall not become vested in any such child or children of the said intended marriage, either under the trust hereinbefore declared, or under any appointment or appointments to be made in exercise of the powers hereinbefore contained, or either of them, then and in such case, they the said trustees, and the survivors and survivor of them, and their or his heirs, executors, administrators or assigns, shall in the event aforesaid, stand possessed of the same or so much thereof, as shall not become vested as aforesaid, or be otherwise disposed of under the powers herein-before or in the said intended settlement to be contained, and the interest, dividends, and yearly proceeds thereof, from and immediately after the determination of such of the trusts hereinbefore declared, as shall take effect, and in the meantime subject thereto, in trust for such person or persons, and upon and for such trusts, intents and purposes, subject to such charges, limitations, powers, provisoes and declarations, and in such manner in all respects as the said Marianne Beckett, notwithstanding her intended coverture, and whether she shall be covert or sole, by her last will and testament in writing, or any codicil or codicils thereto, or any writing purporting to be, or in the nature of her last will and testament, or any codicil or codicils thereto, shall direct or appoint, and in default of or subject to any such direction or appointment as last mentioned, in trust for the said Marianne Beckett, in ease she shall survive the said Sir Thomas Whichcote, her executors, administrators and assigns, absolutely (but not so as to revoke or make void any appointment by will previously made by her during her coverture, without some other act for that purpose done by her). But in case the said Marianne Beckett shall die in the lifetime of Sir Thomas Whichcote, then in default of or subject to such appointment as aforesaid, in trust for such person or persons as would, have been the next of kin of her the said Marianne Beckett, and entitled to her personal estate according to the statutes for the distribution of intestate’s effects, if she had died a spinster and intestate, for their own use and benefit, and to be divided in the same shares and proportions as if the same had been the personal estate of her the said Marianne Beckett (subject always and without prejudice to the life interest of the said Sir Thomas Whichcote, under the trusts hereinbefore declared).”</p> <p>The bill further charged that Henry Becket, the father of Marianne Becket, was a natural born subject of Great Britain, and has always so continued a subject, though residing in the United States. And that the intended marriage was afterward, in July, 1839, duly solemnized between Sir Thomas Whichcote and Marianne Becket, she being then about nineteen years of age, and both continued to be domiciled in England. That she attained the age of twenty-one years on the 27th April, 1841, and after-wards died intestate without issue, on the 10th day of May, 1849, and without having executed any appointment or settlement under the agreement or marriage settlement of 9th July, 1839. That on the 25th May, 1852, letters of administration on her estate were duly granted by the register of Philadelphia to Sir Thomas Whichcote. The bill further sets forth that Lady Whichcote took no estate in the premises under the will of her grandfather, James Lyle, during her minority; or if she took any it was subject to be defeated by her death in her minority, and only vested in her free from any contingency, when and after she became of full age.</p> <p>That the property so devised and bequeathed, was in ease of her marriage, clothed with a trust for her sole and separate use, and as she married while yet a minor and continued covert until her death, it could not under any circumstance become freed and discharged therefrom. That being subject to such trust for her separate use, the operation of the marriage settlement of the 9th July, 1839, was merely to confirm the trust for her separate use, but did not otherwise alter or affect her absolute interest therein; and the same therefore upon her death, so far as the same consisted of personal estate, both principal and interest, and all arrears thereof, vested absolutely in the complainant, who is now entitled to have the whole thereof paid over to him as the administrator, for his own use and behoof; and so far as it consisted of real estate, that he is entitled to have all arrears of the annual income or proceeds thereof, due at the time of the death of his •wife, in the hands of the trustees, also paid over to him as administrator, for his sole use and behoof; and to have the income and profits of the same since her death, paid over to him for his own use during his natural life.</p> <p>The bill then alleges a demand upon the respondents by the complainant for the personal estate, and the income and profits of the real estate, and a refusal to pay the same over to him, or account to him as administrator, or to pay to him the income and profits of the real estate.</p> <p>It concludes by a prayer for an account of the estate in the hands of the trustees, and that they shall abide all such further orders and decrees as to the court shall seem meet, &c.</p> <p>The answer of defendants admitted the main facts of the cause as set forth in the complainant’s bill; and also set forth that shortly after the death of James Lyle, an informal division of his estate was made as nearly in conformity with the directions and intentions of the testator as could be done, and that the whole interest, dividends, rents, and income of the divided and undivided moiety of the estate, constituting the share of Mary Becket, was duly accounted for and paid over to her for her seperate use until her death. That from her death to the time of answer filed, they have, according to the provisions of the will, accounted for and paid over to Henry Becket, for his use, the one-half of the income of this share, as provided for and directed in the will. That during the interval between the death of Mary Becket and the majority of Lady Whichcote, the other half of the dividends, and income of the other half of the estate, devised and bequeathed to Mary Becket, was carried to a separate fund. That on the 27th April, 1841, the date of Lady Whichcote’s majority, the accumulated fund amounted to $55,802, after deducting the expenses incurred for and on account of herself and her brother, Hamilton Becket. That her portion of this fund then amounted to $27,651.30, and which was invested by them under the directions of the will; and that the whole income of this fund, from that day to the present, has been accounted for and paid to the complainant. And the income of the residue, being one-eighth of the testator’s whole estate, real and personal, or one-fourth of Mrs. Becket’s share, was from that time duly accounted for and paid to the complainant until the death of Lady Whichcote.</p> <p>The respondents then answer that they are advised that the capital of the estate, so far as it consisted of personal estate, would, at her death, have vested in and passed to the complainant, or be now recoverable by him as her administrator, had not the marriage settlement of the 9th July, 1839, limited his estate therein to an equitable interest for the term of his own life. That they are further advised and believe that he is entitled under the articles to the income of the personal estate for and during the term of his natural life. And that they have in accordance therewith accounted to him and paid over the interest and income of the said personal estate accrued since her death, and the accounts thereof settled and closed with him.</p> <p>In bar therefore of the said bill, so far as it asks an account of income of personal as well as real estate to the death of Lady Whichcote, and of interest and income of personal since her death, the defendants plead the settlement and the closing of the said accounts with the complainants. They also aver that they are advised, that from and after the death of Lady Whichcote, the complainant was not in any manner entitled to the rents or profits of the real estate of said moiety. But that Henry Becket, one of the defendants, who, as the respondents are advised, is entitled for the term of his life to the rents and profits of this real estate, under the influence of motives and considerations with which his co-defendants have no concern, has appropriated, and intends to appropriate, the rents and profits of the said real estate to the complainant while they, Henry Becket and complainant, both live. They allege that they have, therefore, from the death of Lady Whichcote, accounted for and paid to the complainant the rents and profits of the real estate, as well as the interest and income of the personal, which would have been receivable by her, if still living; and that the accounts thereof have been fully settled and rendered in writing.</p> <p>The defendants then demur to so much of the bill of complaint as prays that rents or income of the real estate, since the death of Lady Whichcote, shall be decreed to him, and to all such parts as pray an account or discovery or other relief as to such subsequently accrued or accruing income of the said real estate. And for cause of demurrer show: First, That if the said marriage settlement had never been made, the .complainant would have had no interest, legal or equitable, in the said real estate, for the reason that as an alien he would have been incapable of taking or holding as a tenant by the curtesy. And for the further reason that the only estate of the said Marianne Lady Whichcote therein, was under a trust for her separate use, not admitting of tenancy by the . curtesy. In the portion of the said real estate, of which under the will the rents are subject to the order and direction of Henry Becket during his life, the interposition of this equitable life estate would prevent the complainant from taking an estate by the curtesy at the death of Henry Becket. Secondly, That under the marriage articles, the complainant could not take or acquire any interest, for life or otherwise, unless the said articles had been carried into effect or confirmed in the lifetime of his wife, by a subsequent proper assurance made by himself and wife, and acknowledged by her according to the statutes in that behalf, and no such assurance was alleged to have been made at any time.</p> <p>They further demur to so much of the bill as is founded upon the allegation that the complainant is absolutely entitled as administrator to the capital of the personal estate, and the payment and transfer of the same to him. And for cause of demurrer show that he is not entitled as administrator or otherwise, for the reason that from and after his wife’s death his estate therein was, by the effect and operation of the marriage articles, limited to an interest for his own life only, or the right to receive the income during his life. That the eldest son, if any, of the intended marriage, was to he provided for out of his own estate, from which the said Lady Whichcote was to receive a jointure. And that for this, the equivalent was the settlement of her fortune upon the younger children in expectancy, with no reservation except that of an allowance to her for pin-money during the marriage, and a surviving interest to her for life. That the covenant by her uncle stood in the place of the performance by her of which she might be incapable on account of her minority: but that the complainant was bound by the articles from their date as to the personal estate as fully as if she had been of full age, or had afterward confirmed them. They therefore demur to the parts of the bill referred to, and pray the judgment of the court whether they shall be compelled to answer .thereto.</p> <p>The answer concludes with a prayer that the defendants may be hence dismissed with their costs.</p> <p>There was a general replication and joinder in demurrer.</p> <p>On the 80th April, 1857, the death of John B. Newman, one of the executors of James Lyle, was suggested; and, by agreement, the style of the suit was amended accordingly; and, on the same day, the Court of Nisi Prius, Mr. Justice Woodward sitting, after argument, dismissed the bill of complaint. Whereupon the complainant had the record certified to the Court in Banc.</p>

<p>A testator devised, “ I give and bequeath unto my daughter E. A., a lot or piece of ground (describing the lot) at the death of her mother.” And in a subsequent clause of his will directed as follows: “ It is my will that neither of my children shall sell or convey any part of the real estate hereby willed to them, but shall receive the rents, issues, and profits thereof during their natural lives, and after their or either of their deaths, their portions shall be equally divided among their children and their heirs; and if either of my children should die without issue, their portion shall be equally divided among the survivors.” E. A. was afterwards married and had three children, all of whom were dead. Held,</p> <p>1. That the will being under the Act of 8th April, 1833, by the devising clause, a fee simple was granted to E. A.</p> <p>2. The limitations contained in the clause afterwards inserted, are not inconsistent with a fee being limitations, to the heirs of the first devisee— first to the lineal, then to the collateral, being together to her heirs generally.</p> <p>3. Being a devise to E. A. for life, with remainder to her children in fee, it vested in the children when born, and opened to let in others born after-wards, and descended on their death to their parents, and the devise over fell entirely.</p> <p>4. Since the act of 1833, an estate tail general may descend according to our law of lineal descents; and hence, a devise to children, to take distributively, is a valid definition of lineal descent, and therefore of entailment. Per Lowrie, J.</p> <p>5. Persons who might be interested in the estate, are properly made parties to the bill, and if minor children are improperly made parties, it will not affect the rest of the bill.</p>

<p>A testatrix devised as follows:</p> <p>“ I give and bequeath all my messuage, plantation, or tract of land situate in the township of Pennsbury, to my granddaughter, A. B. T., for and during her life, provided she shall not leave issue at her death, but if she shall leave lawful issue at her decease, then it is my will that my plantation shall go in fee simple to her heirs for ever.</p> <p>“ In case my said granddaughter, A. B. T., should not leave issue at her death, I give and devise my said plantation to the children of my sister B. B., it to be sold, and the proceeds divided between them, share and share alike, and if any of my said nieces or nephews, the children of my said sister B., should be deceased leaving children, their shares respectively to go to said children.”</p> <p>The will was dated prior to the Act of 1855, but the death of testatrix was subsequent to its passage, the devisee having a child living. Held,</p> <p>1. That the devise created an estate tail general, in A. B. T.</p> <p>2. That such estates are included in the Intestate Act of 8th April, 1833, regulating descents of real estate, and descend to the heirs generally, and not to the eldest son. Per Loweie, J.</p> <p>3. Under this rule of interpretation, the court will incline to construe a devise in doubtful cases, to create an estate tail, where it is to descend to all the children equally, as favouring the heir, and being in exact accordance with our law of lineal descents.</p> <p>4. That the testatrix having died after the passage of the Act of 27th April, 1855, though the will was written and executed before, the devise is subject to the provisions of that law.</p> <p>5. The purpose of that act is to convert words of entailment in estates thereafter created, into words of general inheritance in fee, and thereby repeals the statute de donis conditionalibus.</p> <p>6. By this devise the lineal heirs of A. B. T. are to take the remainder, not</p> <p>as persons selected out of the number of her lineal descendants, but as such lineal descendants of every degree from the first taker, and according to our law of descents, and therefore under the rule in Shelly’s Case, they take an estate tail. _ .</p> <p>_ 7. That the devise over being on an ^definite failure of issue, that is of issue living at the death of the first taker, does not prevent the devise from creating an estate tail.</p> <p>8. The limitation to the issue in fee simple for ever goes for nothing, as being inconsistent with the lineal descent with which the estate starts.</p> <p>9. An estate tail has but one life’s duration, if the donee dies without leaving issue at his death; but it is not shortened by the fact of there being a limitation over on that condition.</p> <p>10. A fee is converted by implication into an entail, by a subsequent limitation over on an indefinite failure of issue: but if the limitation over be on default of issue, at death, no such implication can arise, and the limitation over merely reduces the fee to a conditional one.</p>

<p>Error to the Common Pleas of Schuylkill'county.</p> <p>This was an application for a writ of mandamus by Jacob Kline against Samuel Heffner and others, members of the Town Council of the borough of Pottsville.</p> <p>On the 23d day of June, 1856, the relator filed a petition setting forth that he was a citizen and owner of real estate in the borough of Pottsville; that the defendants were members of the town council, and that an Act of Assembly had been passed on the 8th day of April, 1850, enacting “ that the town council of the borough of Pottsville shall have the power and authority, and it is hereby enjoined and required” to open a certain alley in the borough of Pottsville: that he had notified the defendants of the passage of this law, and had requested them to open the alley, and that they had refused to do so, and prayed that a writ of mandamus might be issued. Whereupon the court granted a rule to show cause why the mandamus prayed for should not issue.</p> <p>On the 24th of July, 1856, the defendants appeared in pursuance of the rule, and resisted the application on the ground,</p> <p>1. That the relator was a private citizen, .who had no right to prosecute in this form for the alleged public wrong complained of in his application.</p> <p>2. That the respondents were not by name or description enjoined by the act to open the alley; and if any mandamus could issue, it should be directed to the corporation, and not to them as individuals.</p> <p>3. That the act is unconstitutional, there being no adequate provision made for payment of damages to the owners of property which might be injured by the opening of this alley.</p> <p>They further alleged that the town council, in the year 1851, made an attempt to qpen the alley, and had been resisted by the owners of property over which it would pass, and threatened with legal proceedings if they attempted to enter by force: that the alley was not required for any public or useful purpose: that the corporation was in debt, with a limited power of taxation: that the damages claimed by the property owners would be large, and that to open the alley would be a useless expenditure of public money.</p> <p>On the 29th of August, 1856, the plaintiff amended his petition by setting forth and describing the real estate which he owned in the borough of Pottsville, and showing that the alley if opened would pass through his lot, and alleging that the opening of the alley as prayed for would greatly enhance the value of his property.</p> <p>After argument, the court below made the rule absolute, and an alternative mandamus issued.</p> <p>On the 3d November, 1856, the defendants filed an answer, showing cause why a peremptory mandamus should not issue against them. In this the objections contained in the former answer were renewed, and stated farther that there was no money in the borough treasury by which any damages incurred could be paid in any reasonable time, and that the other owners of property through which the alley would pass had notified the defendants that they would require the damages to be paid or security given before entrance on the property. That they did not conceive themselves bound to become security for the: corporation, and reiterated that it would be a useless expenditure of public money to open the alley as prayed for in the. application.</p> <p>To this answer the relator filed a general demurrer, and the respondents joined therein. After argument, the court below rendered a judgment for the plaintiff on the demurrer.</p> <p>Thereupon the defendants sued out a writ of error and removed the cause to this court, and assigned here for error:</p> <p>1. The court erred in granting the writ of mandamus.</p> <p>2. The court erred in giving judgment against the defendants.</p>

This was an action of ejectment brought by Joseph W. Hun-sicker, Esquire, against George Law and Enos Beam, to recover 12 acres and 18 perches of land. The land in dispute consisted of two tracts or parcels, the one containing 9 acres, and the other 3 acres and 18 perches.

<p>1. A party who encourages another to buy land, acts as his agent after the purchase, adjusts the lines, pays the taxes, assists in the sale, and receives a commission off the purchase-money, cannot afterwards buy up and assert a better title to part Of the land. He is estopped to deny the right in -whose existence he induced the purchaser to confide.</p> <p>2. An omission to assert a right, will postpone only where the silence of the party is a fraud; but acts done are on a different footing, and by these a party may be postponed without fraud, upon the principle that between two innocent persons the loss shall fall upon him whose acts occasioned it.</p> <p>3. Where the title to a part of the land sold is defective at the time of sale, but the adverse title to it is' afterwards purchased by one who by his previous acts is estopped from setting it up against the vendees, the defence to the payment of the purchase-money on account of such defect is thereby extinguished.</p> <p>4. The receipts of the agent for services and commissions as such, and for repayment of money advanced for the owner, are competent evidence.</p> <p>5. Where the owner of a junior survey which interferes with an older and unoccupied survey, takes possession of his survey, by erecting improvements upon and' clearing and cultivating his land outside the lines of the interference, and uses the balance of it, including the interference, as owners usually do their adjacent timber lands, by taking firewood, fence rails, or timber for the use of a saw-mill, for a period of twenty-one years, this would be such possession as would give title under the statute of limitations to the part within the lines of such interference.</p> <p>6. But occasional entries upon the interference for lumbering purposes, would not constitute such a possession as is essential to confer a title under the statute of limitations.</p> <p>7. The rule of estimating damages for failure or defect of title, to a part of, the land conveyed, is the relative value which the part taken away bears to” the whole, and that is to be estimated with regard to the price fixed by the parties for the whole land.'</p> <p>8. In such cases, it is competent for either party to give evidence of peculiar advantages or disadvantages of the part lost, and reasonable latitude should be allowed while the inquiry is confined to the proper point.</p> <p>9. But the expense of erecting improvements on an adjoining tract of land, is an undue latitude, and the admission of such evidence is error.</p>

Error, to the Common Pleas of Susquehanna county. This was an ejectment brought by John Carr, against Hermon Storch, Dorsatus Norton, Eve Carr, and C. N. Miller, to recover the possession of 102 acres and 121 perches of land. The premises had formerly belonged to Slocum Carr, a brother of the plaintiff, and on the 15th of December, 1852, Slocum, Carr and Eve his wife conveyed them to the plaintiff.

This was an appeal by Levi H. Crouse from the decree of the Court of Common Pleas of Chester county, distributing the pro-coeds of the sale of the real estate of Jacob Crouse, in -which the parties agreed upon the following statement of facts. 1856. July 14. It is agreed between. Matthew Stanley and Levi II.

This was an action of ejectment brought by John M. Wetherell,' against Robert L. Curry, to recover a lot of ground in West Philadelphia, containing in front or breadth on the Haverford road, sixty-seven feet six inches, and extending in length or depth, crossing several streets, about one thousand feet, to the Schuylkill river road. After the suing out of the writ, Hannah Raymond, devisee of Josiah Raymond, was admitted on petition and affidavit to defend as landlady.

These were two actions of trespass quare clausum fregit, brought by Andrew Hance against John B. McCoy. The plaintiff and defendant are owners of adjoining tracts of land, the plaintiff’s lying west and the defendant’s east of the division line between them. On this division line each of the owners and oc- ■ cupants made and kept each different parts of the fence.

Error, to the District Court of Philadelphia. This was an action on a ground rent deed, brought by Thomas Gibbs and Sally Ann his wife against Richard Wilson, administrator of Jesse Brown, deceased, and Margaret Wilson et al., terre tenants. On the 19th October, 1820, John IP. Brinton conveyed a lot of ground in Philadelphia to Jesse Brown, reserving a ground-rent of $22.50. On the 80th January, 1822, Brown was discharged as an insolvent by the Court of Common Pleas.

Error, to the District Court of Philadelphia. This was a scire facias on a mechanic’s lien, at the suit of Trout, Johnson & Co. against The Fourth Baptist Church of Philadelphia, and B. Q. Gibbon & Brother, contractors. The lien was filed on the 3d January, 1855, for $1750, and was for window sills, door-frames, columns and ornaments, &c., and for hauling and setting the same as per special contract.

' ( This was a scire facias on a mechanic’s lien by Campbell & Pharo against James Nelson, owner, and McClellan & Rheem, contractors. The defendant, Nelson, was the owner of a four story brick messuage with back buildings, situate at the corner of Broad and Callowhill streets in the city of Philadelphia. The main building contained in front, on Callowhill street, about eighteen feet six inches, and extended in depth, along Broad street, about fifty feet.

<p>Appeal from the decree of the Common Pleas of Bucks county, distributing the proceeds of the sale of the real estate of William Beek. The property sold consisted of twenty-five acres of land, situate in Doylestown township. About the 1st of April, 1855,</p> <p>Beek commenced the erection of a large building forty feet high, two hundred and fifty feet long, with two wings of fifty feet square each, on the same land, the buildings and grounds being designed for holding agricultural and other public exhibitions. The grounds were graded and enclosed with a high, tight board fence, with entrances and ticket offices. Stalls and pens for cattle, &c., extended around the greater part of the enclosure. There were gas works erected in a separate building, for the purpose of lighting the main structure. The principal building was so far completed, that an exhibition, commencing 21st August, and continuing four days, was held in it and on the grounds.</p> <p>After the commencement of the buildings, The Doylestown Bank, and various other parties, recovered judgments against Beek, the owner of the premises.</p> <p>On the 28th of October, 1855, the main building was prostrated by a storm. The foundation walls were left entire, and so was the floor with the exception of some holes broken through it by the falling timbers. The other improvements remained unaffected.</p> <p>Subsequent to this, Wigton & Brooks, with a number of others, filed liens for work and labour done and performed, and for materials furnished about the erection of the building and other improvements.</p> <p>On the 22d of March, 1856, the property was sold under a venditioni exponas, issued upon one of the judgments, subject to a first mortgage of $528 00, and the proceeds of that sale, $558 55.49, were in court for distribution.</p> <p>The court appointed M. Yardley, Esq., an auditor to report the facts and make distribution. Before the auditor the fund was claimed by the appellants, on their mechanic’s liens filed, and by the judgment-creditors. The auditor decided that the appellant’s liens were lost by the destruction of the building, and reported in favour of awarding the fund to the judgment-creditors. To this report exceptions were filed; but the court below (Smyser, P. J.) dismissed the exceptions, and, delivering the following opinion, decreed distribution according to the auditor’s report.</p> <p>“ The lien of mechanics and material-men attaches to the -building primarily, and to the land only incidentally, as necessary to the proper use and enjoyment of the building. If no building is erected, there is no lien on the material, merely as such; and, on the other hand, if the latter is furnished on the credit and for the use of the former, the lien exists, whether the material is actually ¡out into the building or not. It follows, therefore, that when the building ceases to exist, by its being destroyed by fire or any other accident, the lien, having no longer anything to attach itself to, or in which it ean inhere, is gone. A fortiori is this the case when such destruction precedes the filing and entry thereof.</p> <p>“ These principles are definitely asserted and settled in the case of The Presbyterian Church v. Stetler, 2 Casey 246. The only question that seems to be left for the consideration of the court, is, whether in this instance there has been a total destruction of the building as such. This, the facts found by the auditor, and the evidence returned, fully establish; and our personal knowledge, drawn from a view of the wreck, if we were at liberty to bo governed by that, most entirely justifies and sustains them. There is nothing left to repair; if reconstructed, it would be an entirely new erection, with the exception, perhaps, of the foundations and part of the flooring. It is sufficiently manifest that nothing of the kind was contemplated by the former owner or contractor. What the sheriff’s vendees may intend, we have, of course, no means of ascertaining. But, were such a thing to be done, the labour and materials employed therein would be the foundation of new and independent liens, which would be almost valueless, if the old original liens are to be considered as attaching to the new structure.</p> <p>“Neither can this class of claimants be suffered to take out of the fund in court, a sum equivalent to the value of the materials remaining on the ground, after the overthrow of the building. Being resolved into its original elements again, the case is, for the purposes of lien, as though there had never been a building erected out of them. They are there, but they are not in any structure. There is none in existence, for which, or on the credit of which, they were furnished. The lien attaches to the building, and not to the material, merely as such; and here there is now material only.</p> <p>“ It -is not like the case mentioned in 12 Harris 507, of a building partially or wholly taken down by the contractor, to correct a faulty construction. There, all that is done, may well be regarded as part and parcel of the original construction itself. It is in no sense, either a new building, or the repair of a former one.</p> <p>“ The stalls, ticket offices, gasometer and shed over it, are the mere appurtenances of the main building; and these liens are not filed specifically against them; nor, I imagine, could they have been. As incidents they follow the fate of their principal. In some of the claims filed, these outside erections are not named at all. In others, they are merely referred to in general terms, as appurtenances pertaining to the convenient use of the main building, which alone is described in the manner required by law. It cannot be successfully pretended that a lien can continue to attach to a mere appurtenance, after it has ceased to bind that to which the latter was appurtenant. These claims only purport to bind the sheds, fences, &c., as appurtenances to the building. That being destroyed, they cease to be appurtenant. It cannot be claimed, that, although no longer bound as appurtenances, they may be as separate or independent structures, for in that point of view, the liens filed are wholly worthless, for want of necessary and legal description.</p> <p>“ Whatever we may think of the hardship of the case of this class of creditors, we must not forget that they are clothed with special privileges and preferences, to the destruction of that equality in which equity delights; and that, not so much on the ground of their being a more meritorious class, as because the growth and improvement of the country is supposed to be promoted thereby. Being a privileged class, they may be entitled to a liberal construction of the law in their favour, especially in matters of form or mere technicalities; but although entitled to a liberal, they have no right to a latitudinarian construction, embracing matters neither within the letter or the spirit of the law. In an absolute sense, it is just as hard for the creditor, who advances the funds for the erection of the building, to lose his money, as for the man •who puts into it his labour or material, and, apart from positive law, he has an equal right to repayment. If postponed on principles of public policy, the preference should cease when the policy ceases. Now where a building is blown down or destroyed, the policy, from that moment, is the other way; for, if the original claims still remained liens on the reconstructed building, then, so far as improvement depends on privileged liens, it would be arrested or greatly impeded, instead of being promoted.</p> <p>“ These being the views of the court, we have no alternative but to confirm the report of the auditor, and to decree distribution of the fund in court to and amongst the judgment-creditors, according to schedule or statement ‘ A’ accompanying the report.</p> <p>“Decree accordingly. By the court, Dec. 2d, 1856.”</p> <p>From this decree Wigton & Brooks and the other mechanic’s lien creditors appealed, and assigned here for error:—</p> <p>1. The court erred in decreeing distribution of the fund to the judgment, in preference to the mechanic’s lien creditors.</p> <p>2. The court, erred in refusing to appropriate any part of the fund to the liens filed by the appellants respectively.</p>

Error, to the Common Pleas of Pilce county. This was a feigned issue, directed by the Court of Common Pleas of Pike county, in which David Selden was plaintiff, and Thomas S. Christophers and Thomas Vermilya were defendants. The real estate of Thomas S. Christophers had been seized and sold on judgments against him in favour of various persons, for the use of David Selden, for the sum of $9100. Selden was the purchaser.

This was an appeal from the decree of the Court of Common Pleas of Schuylkill county, distributing the proceeds of a sheriff’s sale of certain real estate. Held: the property extended, and the rental fixed at $1300. Under this extent, Mrs. McGowan continued to retain the possession. These facts, it was alleged for Slater, precluded Barber & Lee from claiming any part of the fund in court.

This was an action on the case sur assumpsit, by William Ellsbre against Manson Ellsbre. The affidavit of the plaintiff was filed, deposing, to his belief, that the debt due exceeded one hundred dollars. On the 29th May, 1855, an award of arbitrators was filed in the case, finding $21.73 in favour of the plaintiff, and on the 8th of June, 1855, the defendant filed the plaintiff’s receipt, acknowledging satisfaction in full, for debt, interest, and costs.

This was an appeal from a justice of the peace, taken by the county of Northampton, in a suit brought by Mahlon West against the county for constable fees, on the commitment of vagrants and drunkards by justices of the peace.

Error, to the Common Pleas of Bradford county. This was an action of trespass on the case brought by Lewis I). Eowler against George Jenkins, in which the parties agreed upon the following case stated, with liberty to either party to sue out a writ of error. The lands of the parties were situate in the township of Gran-ville in said county, and joined each other.

On the 26th day of April, 1856, Benjamin D. Garrigues gave to J. B. Ayers a single bill, with warrant of attorney to confess 1 judgment for the sum of 1$360, payable one day after date. This judgment-note was given under a parol agreement, that it was not to be entered nor execution issued upon it until after a certain judgment, which Garrigues had given to Boggs & Kirk, should be entered, and execution issued upon it.

This was an action on the case brought by John Koehler against Samuel Schnable, to recover damages for obstructing a certain private way. Koehler, the plaintiff, and Jacob Warner (of whom the defendant Schnable was tenant) owned adjoining lands, and the road in question followed the line, each one having his fence set back so as respectively to contribute equally to the road.

On the 22d February, 1855, upon the petition of William Homer and others, the court appointed viewers for the purpose of viewing, and if they deemed it necessary, to lay out a public road. The viewers made a report to the following April Term, laying out the road as prayed for in the petition. At August Sessions a petition for review was filed, and also the following exceptions to the report of the viewers, by Tabitha Kirk.

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an action of debt brought to August Term, 1843, by the Township of Covington against Edwin Dyer, upon the following bond: — •</p> <p>Know all men by these presents, that we, Aaron Bloss and Edwin Dyer, are held and firmly bound unto'the auditors of the Township of Covington, for the use of said township, in the sum of one thousand dollars, to be paid to the said township, to which payment well and truly to be made, we do bind ourselves, and each of us, for, and in the whole; and each of our heirs, executors, administrators, jointly and severally by these presents, sealed and dated this twelfth day of April, one thousand eight hundred and forty-one. The condition of the above obligation is such that if the above bounden Aaron Bloss, supervisor of Covington Township, shall duly perform the duty of supervisor for the ensuing year, as provided by the Acts of Assembly, then this obligation to be void, otherwise to remain in full force and virtue.</p> <p>A. Bloss. [seal.]</p> <p>Edwin Dyer, [seal.]</p> <p>Signed and delivered in presence of) Asahel G-raves. j</p> <p>The plaintiff filed a statement, and averred that “ Aaron Bloss did not perform the duties of supervisor, as provided by the Act of Assembly, &c., to the damage of the plaintiff of five hundred dollars. Therefore they bring suit,” &c.</p> <p>The Act of 3d April, 1830, provides as follows :—</p> <p>“ That before any supervisor or supervisors of any township within the county of Tioga and Huntingdon shall proceed to act, in their official capacity, he or they shall become bound with one or more sufficient sureties, for the .due performance of the duties, as provided by the Act of the 6th of April, 1802, either of the auditors elected as aforesaid, is hereby authorized and empowered to take such surety in favour, and for the use of such township or borough; provided, that so much of the Act of the 6th of April, 1802, as is by this act altered or supplied, be and the same is hereby repealed.”</p> <p>On the trial in the court below, the defendant objected to the admission of the bond in evidence, upon the ground of the variance between the bond set forth and the bond offered. The court overruled the objection, and, at the instance of defendant’s copnsel, sealed a bill of exceptions.</p> <p>The defendant’s counsel prayed the instruction of the court on the following points:—</p> <p>1st. That upon the pleadings and evidence in this cause the plaintiff cannot recover.</p> <p>2d. That, at the time of the execution and delivery of the bond on which suit is brought, there was no law in force requiring a supervisor of the township of Covington to give bond, conditioned for the performance of the duties of his office as such, and that the bond on which suit is brought is not, therefore, valid and binding upon the defendant.</p> <p>3d. The condition of the bond on which suit is'brought, is not in accordance with the Act of 3d April, 1830. That act requires the supervisor to give bond for the due performance of the duties as provided by the Act of 6th April, 1802; and not that he shall perform the duty of supervisor as provided by the Acts of Assembly, and the condition of the bond being more extensive than the requirements of the Act of Assembly, is void, and no recovery can be had upon it.</p> <p>4th. The bond was not taken by either of the auditors of the said township of Covington.</p> <p>The court below (Williston, P. J.) answered the points as follows:—</p> <p>“ The court charge the jury in answer to the 1st point of the defendant. We decline charging you as requested by defendant’s counsel.</p> <p>“ To the second and third points of defendant, the court charge the jury; they are of opinion that, at the time of giving the bond in this suit, the Act of 1830, requiring security to be given by supervisors in Tioga county, was not repealed. That the bond is not void, as requiring more than the act requires, and, on the whole, that the said bond is valid and binding on the defendant.</p> <p>“ To the fourth point, the court charge the jury that the bond being taken to the auditors of the township, for the use of the township, was properly taken.</p> <p>“ To this charge the counsel for-defendant excepted, and prayed the court to reduce the same to writing, and filed of record, which is done December 25, 1849.”</p> <p>The jury found for the plaintiff $239.52, and judgment was entered on the verdict.</p> <p>The defendant purchased this writ, and assigned in this court for error, The admission in evidence by the court below of the bond, and the answer of the court to the defendant’s points.</p>

This was an action of assumpsit by Benjamin Nehf against Gustavus G. Schollenberger, founded upon the alleged guaranty of the following note:— “Pottsville, Dec. 27, 1854. “ Thirty days after date I promise to pay, to the order of Benjamin Nehf, two hundred dollars, without defalcation, for value received. “ L. C. Leib. $200. Endorsed, “ G. G. Schollenberger, “ Benj.

<p>When a note payable to the order of the payee is endorsed by one not a party to it, the endorsement unexplained is an agreement to be liable for the note in the hands of third persons after the payee has placed his name there as first endorser.</p> <p>On such an endorsement, unaided by other evidence, the payee cannot recover against the endorser.</p> <p>The payee may show aliunde that the endorsement was made-for the purpose of obtaining a credit with him for the maker of the note; and in such ease the endorser will be regarded as a guarantor.</p> <p>If the maker is insolvent at the maturity of the note, this is prima facie evidence that a demand upon the maker and notice to the guarantor, would be unavailing, and would dispense with the proof of them.</p>

<p>Error, to the Common Pleas of Tioga county.</p> <p>This was an action of trespass by John W. Schoff against Winthrop Beach. The action was commenced before a justice of the peace, and removed into the Common Pleas by appeal. The parties were engaged in lumbering on the Cowanesque river, a public highway. The defendant, in the spring of 1854, started six rafts of boards which he intended to run to Columbia to market. He left with them on the 21st April, and ran them until he arrived at Culver & Slosson’s mill-dam, where he found a spar-raft, belonging to the plaintiff, lodged upon the dam; and, as he alleged, in the only course by which he could run his rafts over the dam. This spar-raft had been lodged there from some time in March. The defendant, with his workmen, went upon the raft and cut the fastenings which held the spars together, and took off two of the spars, one of which they conveyed to the beach and secured it, and the other went adrift.. This having made room to pass, the defendant went on down the river with his rafts. The remaining part of plaintiff’s raft continued upon the dam. The plaintiff came there upon the same day, and had notice of what was done, but it does not appear that he took any means to secure his raft. The water rising carried the spars down the river a short distance, and lodged them against the piers of a bridge.</p> <p>This action was brought to recover damages for the spar which went adrift, and the expense incurred in getting the others together and rafting them in again.</p> <p>On the trial in the court below, the defendant presented the following points:—</p> <p>1. That, if the plaintiff contributed to the injury, he cannot recover, although the defendant might have been guilty of negligence.</p> <p>2. If the jury believe from the evidence, that the plaintiff’s raft was run, and left by him, in the course for three or four weeks, and until the next freshet, and the defendant, in descending the river with his rafts, was obstructed by the plaintiff’s rafts, the defendant had the right to remove the plaintiff’s spars to effect a passage, and, in doing so, is not liable for the loss of the plaintiff’s spars, unless he was guilty of gross or wilful negligence.</p> <p>The court below (White, P. J.) answered these points as follows : — ■</p> <p>“ Defendant’s first point is not applicable to the facts of this case. It is not shown that plaintiff contributed to the injury for which suit is brought. The cutting of the raft and occasioning the spars to go adrift, was the act of the defendant and those in his employ. This constituted the injury, and was neither authorized nor participated in by the plaintiff. Nor can it be said in any just sense that he was guilty of that kind of negligence or carelessness, which authorized the application of the rule, ‘ That for an injury occasioned by the joint carelessness or misconduct of two persons, neither can sustain an action against the other.’</p> <p>“ Upon defendant’s second point the jury were instructed that it was the duty of the plaintiff to remove his spars from their position on Slosson & Culver’s dam within a reasonable time after they were lodged there; that he was liable to all persons using the navigation who were obstructed or impeded by his raft, for whatever amount of damages such obstruction occasioned, and that such persons had the right to remove the raft in pieces or single spars, if it could not be removed otherwise. But they had no right to destroy it, or any portion of it, wantonly and uselessly. On the contrary, they were bound to exercise such care in removing it as an ordinarily careful man would have used in the removal of his own property from the same or a similar position. If by such care defendant could have saved the raft, he ought to have done it; and for not doing it he is liable to pay for the spars that were lost, and the extra expense of getting those together which were afterwards recovered upon the bridge piers at Osceola. In other words, the plaintiff is entitled to a verdict for all the damages he has sustained by reason of the conduct of the defendant and his employees so far as you believe it to have been characterized by a useless, wanton, and wilful destruction or waste, from negligence, or by not exercising that care to save the plaintiff’s property which persons of ordinary prudence and caution usually manifest in the care of their own property. Defendant excepted to the charge before verdict upon the points put by him, and so much of it as had relation to those points is written out and filed.”</p> <p>The jury found for the plaintiff $55.56, and the court entered judgment upon the same.</p> <p>The defendant sued out this writ, and assigned here for error, the answer of the court below to the points presented.</p>

<p>The Act of the 21st April, 1846, authorizing the Courts of Quarter Sosrions to vacate roads, “ existing by prescription or lapse of time,” is a constitutional and valid exercise of legislative authority.</p> <p>Bights vested by adverse user and limitation derive their force from positive enactments, from the usages of government, or from the customs of the people, all of which are forms of law-making, and legislation may provide for divesting rights so acquired.</p> <p>Bights vested by contract are expressly guarded and protected by the constitution.</p> <p>If the legislature may compel one man to allow another a private road over his land, where such road is necessary, it is but a corollary to this, that they may provide for the vacation of such a road when it shall have become useless.</p> <p>Such rights grow up out of necessity, and ought to be regarded as morally dependent upon the continuance of the necessity. Per Lowkie, J.</p>

<p>The Act of 25tli April, 1850, authorizing the owners of unenclosed woodland over which a way had been used, to enclose the same on clearing such woodland, as if no way had been used through the same, is prospective in its operation, and has no application to a case where the right acquired by user was perfect before the passage of the act.</p> <p>Farley v. Fisher, 11 Harris 501.</p>

Error, to the Common Pleas of Lehigh county. This was a proceeding in the court below, by Jacob Lazarus against the Lehigh Yalley Railroad Company, to recover damages for injuries alleged to have been sustained by the petitioner, by reason of the making of the defendants’ railroad. A venire was awarded, and on the 6th June, 1855, a report was filed, finding that the plaintiff had sustained damages to the amount of $1200. Roth parties appealed.

<p>The owner of land adjoining a navigable river owns the soil to low water mark, subject to the public right of navigation to high watermark as it exists naturally.</p> <p>Where a spring of water on the land of such owner situated below high water mark, has been cut off or injured by the construction of a railroad over his land, he is entitled to compensation in damages for the injury thereby sustained.</p>

<p>Certifícate to the Court of Nisi Prius.</p> <p>This was an action on the case brought by Thomas Monaghan, originally against the District of Richmond, in which the City of Philadelphia was substituted as defendant after the passage of the Consolidation Act. The cause was referred to arbitrators, the rule having been entered by the plaintiff, and an award was made in favour of Monaghan for five hundred dollars, on the 12th March, 1856. An appeal was entered on the 1st of April succeeding, and costs paid, but no affidavit was made or recognisance entered into. Notwithstanding the appeal, the plaintiff issued a fieri facias to January Term, 1857.</p> <p>A rule was entered at the instance of defendant to show cause why this execution should not be sot aside. This rule was argued before Mr. Justice Knox on the 29th December, 1856, and the same was discharged by the court.</p> <p>The defendants caused the record to be certified to the court in banc, and assigned for error, 1st; That an appeal from the award of arbitrators has been properly entered in said cause, and that said appeal was still pending and undetermined.</p> <p>2d, That the execution was not in proper form, the defendant being a municipal corporation, and that it should have been a mandamus execution under the Act of Assembly in such case provided.</p>

<p>Error, to the Common Pleas of Chester county.</p> <p>This was an amicable action, in which John and William Davis were plaintiffs, and William Buckman defendant. The parties agreed to the following amicable reference:—</p> <p>“ It is agreed, April 11,1856, that the above amicable action be entered upon the records of the Court of Common Pleas of the county of Chester, as of April Term, A. D. 1856, and that the same be referred to Joseph Wylie, John Marsh, and David Williams, who, after having been severally sworn or affirmed to perform their duties with impartiality and fidelity, shall proceed, without the formal entry of a rule or issuing of an order of court, to try and determine the following question between the parties, to wit, what sum of money, if any, the defendant shall pay the plaintiffs for said defendant’s having failed to comply with a certain contract entered into between the said parties, of which the following is a copy, to wit: ‘Articles of agreement made this 8th day of February, 1856, between William Buckman, of Bucks county, and John and William Davis, of Chester county; that the said William Buckman lets his farm, situated in Westcaln township, Chester county, for the term of one year, the said John and William is to pay the sum of $295 rent and all taxes. The rent to be paid on New Year’s day. Interest to be deducted for three months. Possession to be given April the 1st, 1856, ending April 1, 1857. The said John and William Davis to have a sufficiency of firewood; to sow all grass seed which the farm may require at their own expense. That the said Buckman reserves the privilege of cutting and hauling wood; the nine acre field joining J. McFarland for corn; the stalk ground for oats; the hay, straw, and corn-fodder to be consumed on the farm. Witness our hands and seals, this 8th day of February, 1856;’ which said contract was signed and sealed by the said parties; and the said farm therein mentioned, being the same premises, bounded by lands of Richard McPherson, John McFarland, and fronting on the Wilmington road, containing about 75 acres of land, which Peter Phipps, by certain articles, under seal, dated January 21, A. D. 1856, granted to said William Buckman, and of which the said Peter Phipps and one George W. Stackhouse, now holding the same, refuse to deliver the possession to the said William Buck-man, or to the said John and William Davis, by reason whereof the said defendant is prevented from and unable to fulfil his aforesaid contract with the said plaintiffs, by delivering to- them the possession of the said farm, wherefore the said plaintiffs aver they have sustained great damage.</p> <p>“ The award of the said referees, or a majority of them, to be final and conclusive between the parties. Said award to be filed in the said court within five days after the same shall have been made, and judgment to be entered thereon by the prothonotary, unless exceptions be filed thereto within ten days thereafter, founded on some plain mistake of fact or law made by the said referees.</p> <p>“ Witness our hands and seals, the day and year above written.</p> <p>William Buckman, l. s.]</p> <p>John Davis, l. s.]</p> <p>William Davis, l. s.]</p> <p>Witnesses present,</p> <p>James Wilson,</p> <p>John F. Baird.”</p> <p>This was acknowledged by the parties before a justice of the peace.</p> <p>The referees made the following award:—</p> <p>“We, the referees named in the foregoing amicable action, certify, that having first been severally sworn or affirmed to perform our duties with impartiality and fidelity, we heard the parties, their proofs and allegations, and do award in favour of the said John Davis and William Davis, the plaintiffs, and against the said William Buckman, the defendant, the sum of $400.</p> <p>“Witness our hands, this 11th day of April, A. D. 1856.”.</p> <p>The submission and award by mistake was filed in the recorder’s office on the 12th May, 1856. And on the 17th May, 1856, was entered and filed in the office of the prothonotary.</p> <p>On the 22d May the defendant filed the following exceptions verified by his own affidavit:—</p> <p>1. It was one of the terms of the agreement between the parties, that the award of the referees should be filed in the Court of Common Pleas of Chester county, within five days after the same should have been made, which was not complied with.</p> <p>2. The award has become null and void by reason of the same not being filed in the said court within the time fixed by the agreement of the parties; the benefit and advantage thereof having been waived by the failure of the plaintiffs to file the same.</p> <p>Same day, other exceptions filed by defendant, verified by his affidavit.</p> <p>1. The referees decided the cause without hearing any testimony or evidence of any kind, or even the statements of the parties, or either of them in the presence of each other.</p> <p>2. The referees were requested by the defendant to hear his statement, but refused to do so.</p> <p>3. The plaintiffs, or one of them, out of the presence of the defendant, ma’de representations to some of the referees relative to the ease.</p> <p>4. The referees erred in matter of law, as they considered that the defendant would be entitled to recover from Peter Phipps and James W. Phipps the amount awarded with costs, and this consideration influenced the award.</p> <p>5. The arbitrators misbehaved themselves,</p> <p>1st. In deciding the case without evidence.</p> <p>2d. In refusing to hear the statements of the defendant.</p> <p>6. The arbitrators made a plain mistake in matter of law in considering that the defendant would be entitled to recover from Peter Phipps and James W. Phipps the amount of the award with costs, which they did; and in making the award larger than they would otherwise have done on the ground that it would ultimately make no difference to the defendant what the award was, as the said' Phipps would be liable for the amount; and in considering what the conduct of the said Phipps was in relation to a transaction between the said defendant and the said Phipps, which could not and did not affect the cause of action in this case.</p> <p>After argument, the court, on the 8th December, 1856, entered .judgment on the award in favour of the plaintiffs for $400.</p> <p>An execution issued for the damages, with interest from the 17th May, 1856, the date of the filing of the award in the prothonotary’s office.</p> <p>The defendant thereupon took this writ and assigned here for error,</p> <p>1. The court erred, in assuming cognisance of the case, and in directing judgment to be entered on the award.</p> <p>2. The reference was not made under any Act of Assembly giving the court jurisdiction of the report, or authority to enter judgment upon it.</p> <p>3. The court erred in overruling the following exception: “ It was one of the terms of the agreement between the parties that the award of the referees should be filed in the Court of Common Pleas of Chester county, within five days after the same should have been made; which was not complied with.</p> <p>4. The court erred in overruling the following exception: “ The award has become null and void, by reason of the same not being filed in the said court, within the time fixed by the agreement of the parties; the benefit and advantage thereof having been waived by the failure of the plaintiff to file the same.”</p> <p>5. The execution is not warranted by the judgment, the judgment having been entered December Term, 1856, for $400, and the execution having issued on the same day for $400, and interest from May 17, 1856.</p> <p>6. The arbitrators made a clear mistake, in matter of law, in awarding to the plaintiff $400, for his damages for the non-performance, by the defendant, of his agreement to deliver possession of a farm of the annual value of only $275.</p>

<p>Certificate from tbe Court of Nisi Prius.</p> <p>This was an action on the case sur assumpsit, brought by A. Gr. Rowland & Co. against the Lehigh Coal and Navigation Company, to recover damages for the non-delivery of coal according to contract.</p> <p>On the 9th February, 1853, Rowland & Co. gave an order to the agents of the company, defendants, for 5000 tons of coal. On the 12th of the same month an additional order for 2000 tons, and on the 9th of March a further one for 3000 tons, making, in the aggregate, 10,000 tons. This coal was to be delivered during the boating season of 1853. These orders were accepted by Noble & Hammett, the Philadelphia agents of the Lehigh Coal and Navigation Company.</p> <p>The following is a copy of one of the orders, with the conditions attached:—</p> <p>The Lehigh Coal and Navigation Company make the following conditions and stipulations in regard to all orders for their coal, viz.:—</p> <p>Cargoes of coal, for shipping, are sold, deliverable at Bristol, on the Delaware, on board of vessels, during the season of canal navigation; and all contracts for the delivery of coal, not executed during the current season of canal navigation, shall expire with the close of said season.</p> <p>All coal for which orders are given, must be taken by the purchasers, regularly, in full monthly proportions, during the season of canal navigation; but no purchaser shall be entitled to more than a monthly proportion of his order, unless found consistent with the convenience of the company to deliver it; and each cargo is to be paid for as delivered.</p> <p>Captains of vessels sent by purchasers for their coal, must take an order from the company’s office at Philadelphia, report themselves, on arriving at Bristol, to the company’s agent, and take their regular turn in loading, according to the time of their arrival, and, when loaded, sign their bills of lading.</p> <p>Every exertion will be used to give despatch, but the company is not to be liable for demurrage, nor for any consequence resulting from unavoidable delay.</p> <p>The coal, when delivered on board of vessels, boats, or barges, is to be at the risk of the purchasers. Bills of lading, or other regular evidence of shipment, to be proof of delivery, as regards both time and quantity.</p> <p>The officers of the company will, when requested by purchasers, exert, without charge therefor, their best efforts to procure vessels, boats, or barges; but the company declines all responsibility in' relation thereto, reserving to itself, however, the right, if purchasers neglect to send vessels, boats, or barges, of shipping the coal to them for their account, at their risk, at the current rate of freight, and in the full monthly proportions.</p> <p>The company will not be responsible for damages resulting from the non-delivery of coal, if caused by combination or strikes among miners, boatmen, or labourers, or by breaches or other unavoidable accident in the mines, or in the canals or railroad, or by other causes beyond their control.</p> <p>Orders will not be binding, unless acknowledged and accepted in writing by the company.</p> <p>Orders for coal must be in writing, subject to the above conditions ; and if for coal to be delivered in Lehigh scow-boats, subject further to the printed conditions on the back hereof.</p> <p>[Across the face of this was written—</p> <p>“Accepted — Noble & Hammet, Agents.</p> <p>“ Per S. Caldwell, Jr.”]</p> <p>Philada., 9 March, 1858.</p> <p>To Messrs. Noble & Hammet, Philadelphia,</p> <p>Agents for the Lehigh Coal and Navigation Company. Please deliver on board boats at Frankford, the quantity and descriptions of coal as stated below:—</p> <p>Tons Lump Coal, made over 5 in. round holes, ■ @ $</p> <p>“ Steamboat “ “ through 5 in. “ @ $</p> <p>“ Broken “ “ over 2f square holes, @ $</p> <p>1500 “ Egg “ through 2i- “ and over If, @ $ 3.42J.</p> <p>1500 “ Stove “ “ “ If “ “ 1, @ $ 3.55.</p> <p>“ Chestnut “ “ “ 1 “ f, round,</p> <p>Terms--equal to cash, from date of bill of lading, or other proof of shipment.</p> <p>This order is subject to the conditions and stipulations above defined.</p> <p>To be shipped as above.-ft. of water,-bridges.</p> <p>The above is the quantity we were at liberty to increase our order of Feb. 9.</p> <p>A. G-. Rowland & Co.</p> <p>[The following are the conditions on the back of the above: — ]</p> <p> Conditions of sale of coal, deliverable in boats at Mauch Chunk, Bristol, or at other points, by the Lehigh Coal and Navigation Company. </p> <p>Coal purchased, deliverable into boats at Mauch Chunk, will, at the request of the purchasers, and upon their account and at their risk, be forwarded direct, in Lehigh scow-boats, to the extent of the company’s ability, and at the current rates, in cash, of freight, tolls, and towing, upon the manifest weights, to the places and ports which have heretofore been usual along and through the Lehigh, the Delaware, the Morris, and the Delaware and Raritan Canals; the company reserving the right of transhipping the coal at Bristol, should there occur a deficiency of boats, and' for such transhipment the usual charge of twenty-five cents per ton will be made.’</p> <p>For coal deliverable in boats as they reach Bristol from Mauch Chunk, the prices will be twenty-five cents per ton less than the prices for similar coal on board vessels at Bristol.,</p> <p>Coal, deliverable as above in boats at Bristol, will also be forwarded in the boats, as heretofore, to the usual places and ports, subject to the conditions above stated in regard to coal delivered at Mauch Chunk.</p> <p>When coal is sold, deliverable by the company at places other than Mauch Chunk or Bristol, the delivery will be in the boat; and the coal will he at the risk of the purchaser, from the time of the arrival of the boat at the place to which it is consigned.</p> <p>The purchaser is, in all cases, to unload the boats, and to pay alb wharfage and extra towing and moving at the port of destination.</p> <p>A demurrage of two dollars and fifty cents per day will be charged for each boat not unloaded within two working days from the time of its arrival.</p> <p>Copy of Mauch Chunk manifest to be proof of shipment, both as to time and quantity.</p> <p>After the 1st of November, shipments in the boats from Mauch Chunk will not be made to places east of New Brunswick.</p> <p>The other orders and conditions were similar to the above.</p> <p>The defendants delivered under these contracts 3201 tons of coal; and the plaintiffs brought this suit to recover damages for the non-delivery of the remaining 6799 tons.</p> <p>During the season of 1853, the shipments of coal to Philadelphia were interrupted in the whole for about two months, by breaches and impediments in the Delaware division of the Pennsylvania Canal. The defendants claimed to have delivered to the plaintiffs their full proportion of the coal brought to the Philadelphia market by them during 1853; and to have been exonerated from any liability for the portion not delivered, by causes beyond their control. They also contended, among other things, that they were only liable to be called upon by those who had given orders on their agents, for a full monthly proportion of the orders held by such persons, and that by not calling for it in due monthly proportions, the parties waived their right to call for such proportions at a subsequent time.</p> <p>The defendants requested the court to charge the jury—</p> <p>1. That under the orders in evidence, the coal specified therein was deliverable only during the season of canal navigation; and that when the canals on the route from Mauch Chunk, or any of them, were not navigable, and this without the default of the company, the coal was not deliverable under said orders.</p> <p>2. That all coal under such orders was required to be taken, that is, called for by the plaintiff, regularly, in full monthly proportions during the season of canal navigation; and that the company was not in default, if it delivered such quantity of coal as was called for by the plaintiff under the orders, nor in default, merely for not delivering coal which was not so called for.</p> <p>3. That the coal specified in the said orders was not deliverable, except in monthly proportions; that no more than a monthly proportion could be asked for in any one month of the season of canal navigation; and that what coal, was not called for by the plaintiffs in any month or months, could not be demanded in any subsequent month or months, but the right thereto was waived by the plaintiffs.</p> <p>4. That if the jury believe that the interruption in the navigation of the Delaware division of the state canal prevented the delivery by the defendants of the full amount of the coal specified in said orders, they are not responsible for such non-delivery.</p> <p>5. That if there was a short supply of coal, in consequence of an interruption of the navigation, without the default of the defendants, the plaintiffs were not entitled to the full amount of the orders; and the company would not be responsible, if it delivered to them a fair proportion of the coal along with her other customers.</p> <p>6. That if the jury believe that the breaks in the Delaware division caused a stoppage of navigation for two months, and that the ordinary season lasts for eight months, in such case, one-fourth of the delivery of coal under said orders was excused to the company.</p> <p>7. That the course pursued by the plaintiffs, in calling from time to time for the delivery of coal, and in requesting it to be sent to other places than Frankford, is proof of the construction put by them on the meaning of the words “ must be taken” as found in said orders, viz.: that the coal was not to be delivered until specially requested by the plaintiffs.</p> <p>8. There is no mutuality in said orders; and as the plaintiffs were not legally liable to take and accept the coal under the general order, if they did not specially call for it, and if the same were not tendered to them, so on the other hand, the defendants are not liable for non-delivery of coal not called for by the plaintiffs.</p> <p>His Honour charged the jury as follows :—</p> <p>“ The contract was to supply 10,000 tons of coal, which were expressly made deliverable during the season. There were three different contracts. Each of these contracts is entire — not composed of eight distinct contracts, each for a separate month. If company had failed to deliver the proportion in any month, and if they had offered the full amount of coal afterwards, and the plaintiffs had refused to take it, the company would have had their action. Plaintiff is to take coal in full monthly proportions, if offered to him, and he can have no more; but the company is not compelled to give it in any one month, but can offer it at any time afterwards. If, by accident, company had been unable to deliver any coal during the whole season, a different case would have arisen, for the contract ends with the year; but there is no provision of the same kind with regard to each month. When the Lehigh Company found themselves unable to deliver coal in July and August, they were bound to deliver it in September, or during the season. If the canal had broken one day, that wa§ no reason why coal should not be delivered next day; and so with regard to months, and everything less than a year. There is no .fact to show company was not able to deliver coal at some time during the season. You, gentlemen of the jury, must determine the amount of damages; a person deprived of coal in this way is entitled to recover the profit — the difference between whatever he could have sold it at, and the contract price — that is what he can recover. The contract with Packer makes no difference. The damages in this case are not to be measured by Packer’s contract.”</p> <p>The jury found for the plaintiffs $3920, and judgment was ent.ered thereon by the court. Whereupon the same was certified to the court in banc, at the instance of the defendants. The</p> <p>errors assigned here, were the rejection of the testimony as above, and to the charge of his Honour, Judge Black, to the jury.</p>

Error, to tbe District Court of Philadelphia. This was an action of assumpsit, brought by Nelson Gavit against Snodgrass, Reed & Co. On the 10th day of June, 1848, the parties entered into a written agreement by which the plaintiff agreed to furnish to the defendants the necessary fixtures and machinery for a paper-mill which they were about to build at New Alexandria, in Westmoreland county.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Stuart & Brother against Blum & Simson. The declaration was in assumpsit upon the common counts, and the bill of particulars furnished was for goods sold and delivered. On the trial, the plaintiffs’ book was admitted and showed an account against defendants for $7779.35, from 29th July, 1852, to September 3, 1852. The defendants then gave in evidence the plaintiffs’ receipts, dated 22d October, 1852, for their three notes, each for $2435.81, making in all $7307.43; and another receipt for another note amounting to $471.95, which notes made the amount of the account. The defendants also produced and gave in evidence the several notes described in these receipts, and put the same in evidence. The plaintiffs then filed, by leave of the court, four additional counts, on the notes respectively, and alleged that these notes were unpaid, but that they, the plaintiffs, were induced by certain false and fraudulent representations of the defendants to give up the notes and sign the following agreement of composition:—</p> <p>“We the undersigned, creditors of Blum & Simson, do hereby agree with them and with each other, to accept in full payment of the debts due, or to grow due to us respectively, forty per centum of the principal sums thereof, in manner following, tlxat is to say: fifteen per cent, cash, fifteen per cent, payable in one year, and the remaining ten per cent, payable in eighteen months, without interest: provided that this agreement shall be consummated with us within thirty days from the date hereof.</p> <p>“ Philadelphia, March 21, 1853.”</p> <p>This was signed by a portion of the general creditors of the defendants.</p> <p>The plaintiffs also gave in evidence the following agreement of defendants, made with them the same day:—</p> <p>“We hereby agree to give to Stuart & Brother, in settlement of their debt against us, Fifteen per cent, in cash, Fifteen per cent, in acceptances of S. & D. Teller, at twelve months from this date, and Ten per cent, in acceptances of S. & D. Teller, at eighteen months from this date.</p> <p>“And we further agree that if we pay to another creditor a greater sum-than 40 per cent., that we will pay to said Stuart & Brother a similar amount, provided such an amount exceed one thousand dollars. . Blum & Simson.</p> <p>“Philadelphia, March 21, 1853.”</p> <p>The plaintiffs also asked and obtained leave to file two additional counts on this last agreement.</p> <p>On the 7th April following these agreements, Stuart & Brother carried out the agreement by giving up to Blum & Simson their notes for $7779.38 upon the payment of $3111.72, being 40 per centum in cash and notes endorsed by Martin Seidenbach, and which were paid at maturity. The plaintiffs alleged that they were induced to sign, the agreement by the fraud and misrepresentation of the defendants. That they had been doing a prosperous business for a number of years, and were in good credit. And that in the autumn of 1852, they purchased a larger stock of merchandise than in former years, and sold the goods, or a portion of them, in a clandestine manner, and that they made a false statement of their assets and liabilities, and by these means induced the plaintiffs and others to sign the agreement of compromise. It was also proved that the defendants settled with some of their creditors, at fifty per centum on their claims; with others, at seventy-five cents in the dollar '; and some, who refused to settle on other terms, were paid in full.</p> <p>The defendants’ counsel presented the following points:—</p> <p>1. That if the plaintiffs accepted the notes in full of the goods, •the plaintiffs cannot recover for'the goods.</p> <p>' 2. That if the plaintiffs accepted the notes at twelve and eighteen months, in payment of the original notes, they cannot recover the amount of the notes.</p> <p>3. That the plaintiffs cannot recover upon the agreement of March 21, 1853.</p> <p>4. That if the plaintiffs made an arrangement, other than was declared in their composition deed, they cannot recover.</p> <p>5. That the plaintiffs are not entitled to recover.</p> <p>The court below (Sharswood, P. J.) charged the jury, inter alia, as follows :—</p> <p>“ The jury are at liberty to infer — if they are satisfied to do so from the evidence — that the statement exhibited, or the facts alleged, to any of their creditors, were repeated to all. If the signature of any of the creditors to this release was fraudulently obtained, as it is a mutual agreement, it was fraudulent and void as to all.” *********</p> <p>“Put, independently of such a controlling circumstance, I cannot say that the plaintiffs are in law concluded, by receiving the amount of their composition notes, when there has been actual and positive fraud; when the party has acted mala fide — which is the plaintiffs’ allegation in this ease; and whether it was so or not, you are to decide; there can be no such thing as a confirmation: what was once a fraud, will be always so. The reason of the distinction is, that a contract infected with that - kind of fraud— which must be proved, and not presumed from the circumstances of the parties — is not merely voidable, but void; and confirmation, without a new consideration, would be a new fact. Upon the footing of actual fraud, plaintiffs had a right to receive from defendants what they did receive in part payment of their demand; that they were entitled to that, one way or the other; and I am not prepared to say that the receipt concludes them from setting up the fraud. I say, therefore, in answer to defendants’ second point, that it is true — unless the acceptance of these notes was induced by the fraud of defendants.</p> <p>“As to the agreements of March 21,1853, the general principle in regard to these compositions is, that any private agreement to the advantage of the creditor over any other creditor is void. It is true, quite a plausible argument might be used to these, that there is nothing unfair in this particular agreement; that it was not to give plaintiffs an advantage, but to prevent others from gaining an advantage. I do not say how it would be, if all the creditors had made jffie same agreement; but there is no evidence to leave to the jury of that. It does not do to split hairs upon such a subject as this. It would have been well for the plaintiffs to insist upon the insertion of it in the composition deed, as a part of the open composition; or, to have written it over their names, before they signed and sealed. I affirm defendants’ fourth point, that plaintiffs cannot recover on the agreement of March 21,1853, if that agreement was made as the consideration upon which plaintiffs signed the release or composition; but I decline the fifth.</p> <p>“ The sixth, I decline to charge as requested, because there is a question of fact submitted to you in the case.</p> <p>“ If you find from the evidence that defendants were guilty of fraud in misrepresentation or conduct, of their true condition, upon which the plaintiffs were induced with the other creditors, to become parties to the composition; that composition is void, and plaintiffs can recover upon the original notes. If you are not satisfied from the evidence that there was such fraud, the defendants are entitled to your verdict.”</p> <p>The jury found a verdict for the plaintiff for $4946.89.</p> <p>The defendants moved for a new trial, which was overruled. They then moved to have judgment entered upon the common counts, and the counts on the notes, which was refused, and judgment entered on the verdict generally.</p> <p>The defendants then removed the cause by writ of error to this court, and assigned here for error, that the court below erred in permitting the several amendments, in their answer to defendants’ points, and in the general instructions to the jury.</p>

This was an action of assumpsit by Jacob Kichline against Amos Rodgers. On the 24th of March, 1851, Henry B. Duffin, being indebted to Jacob Kichline, gave his promissory note for $321, payable thirty days after date, and gave Amos Rodgers, the plaintiff in error, as his surety on the note. Kichline brought suit against Rodgers on the note, and obtained an award of arbitrators, but died before the cause came to trial in court, and his administrators were substituted.

This was an action of assumpsit brought by Solomon Steckel against Peter Steckel. The declarations contained the common counts. The plaintiff claimed to recover contribution of a moiety of the amount of a promissory note made by Eli Steckel, and endorsed by the plaintiff and defendant for the accommodation of the maker. The note was as follow's: — ■ “$600 Allentown, July 16th, 1852.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit brought by the assignees of James, Iszard & Co., against Arthur, Burnham & Co., to recover $687.11, for certain glass jars alleged to have been sold and delivered by plaintiffs to the defendants.</p> <p>On the trial in the court below, the plaintiffs offered in evidence the following letter : — r</p> <p>Philadelphia, Jan. 17, 1856.</p> <p>Mr. Samuel James,</p> <p>Dear Sir: We find, in going over the amount of glass on hand, that is useless, upwards of twenty boxes. That our account would show a balance of $142 in your favour. There has been considerable loss of the glass which you ought to Have renewed months ago, and which has been at your risk. We have also had considerable expense in removing it from place to place. Our sales of glass show less disposed of than we have already paid for, atíd , we sold all that could be used.</p> <p>The best offer we can make, under the circumstances, is our' note at four months from, date for $120, and we offer more than we are satisfied is due, because we wish to settle the matter.</p> <p>Yours, respectfully,</p> <p>(Signed) Arthur, Burnham & Co.</p> <p>To this offer, the defendants’ counsel objected, upon the ground that the letter was written for the purpose and in view of a compromise, which compromise was not effected.</p> <p>The court overruled the objection, and admitted the letter in. evidence. ’ To this ruling of the court, the defendants took an exception, and filed their bill of exceptions. The defendants proved payment to the plaintiffs of $450.</p> <p>The jury found for the plaintiffs $342. The defendants took a writ of error.</p> <p>The admission of the foregoing letter was. the only error assigned.</p>

This was an action of trespass, vi et armis, by Henry Ellis against Henry Wilson and Moses Strouse. Strouse recovered a judgment against Ellis in April, 1853, for $99, before a justice of the peace, upon which an execution was issued and put into the hands of Henry Wilson, a constable. Under this execution Wilson levied on two horses, a stage, a sleigh, and some harness, as the property of Ellis.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action- of assumpsit by Henry Fricke et al., dealers in coach trimmings, against Joseph Ruch, a coach manufacturer.</p> <p>At the time Ruch commenced his purchases from Fricke, he was given a pass-book, in which the transactions between the parties were entered; and from time to time, during a number of years, settlements of the accounts were made in it. Whilst these dealings were taking place, Ruch gave to Fricke a check on the Tradesmen’s Bank, dated 5th March, 1855, and a large number of his promissory notes to the order of the plaintiffs. There was no evidence to show that the check had been presented for payment, but it appeared that at the time the check was dated, and for twenty-six days afterwards, Ruch had not sufficient funds to meet it. Some of the notes which had passed between the parties were in the possession of Ruch, and were offered on the trial as a set-off against Fricke’s claim. His pass-book showed that he had been credited with certain of the notes which he had given to Fricke.</p> <p>During the trial, and after a partial examination of Fricke’s books of original entries, Ruch was called upon to produce his pass-book; he did so; when Fricke relinquished any further examination of his books, and relied upon the pass-book in the possession of Ruch as containing a true statement of their accounts. It was contended on the part of Ruch, and there was some evidence to show, that he had so little knowledge of English as to be unable to read the entries in the pass-book. There was also some evidence, which was disregarded by the jury, that Ruch had been overcharged for articles sold him by Fricke.</p> <p>The counsel for Ruch requested the instruction of the court upon the following points:—</p> <p>1. That if the jury believe that the defendant could not read and understand the entries in the pass-book furnished him by the plaintiffs, he is not precluded from proving the overcharges of goods contained therein, and he is not bound for the prices stated in the pass-book.</p> <p>2. That the fact that the defendant received a receipt for two notes for $690, when the receipt should have been for three notes, is a strong presumption that the defendant could not read or understand the English language.</p> <p>3. That in the absence of any proof to the contrary, the jury should find from the evidence that there were no other transactions between plaintiffs and defendant, and if they so find, the defendant is entitled to a credit for all the notes in evidence drawn by defendant to order of plaintiffs, and paid in bank for their account.</p> <p>4. That the entries in the pass-books of notes and cash are improper entries, and should be discarded by the jury.</p> <p>5. That if they believe the evidence of the defendant, and find thereby that the plaintiffs’ account has been overpaid, the jury should find the amount of overpayment and interest thereon for the defendant.</p> <p>The court (Hare, J.) charged the jury as follows:—</p> <p>“ The plaintiff in this case relied in the first instance on his own book of original entries, as well as on the defendant’s passbook; but in order to obviate the objections which have been taken to his entries, he now limits himself solely to the defendant’s book; you will therefore not rely on the plaintiff’s book as proof of the entries which it contains, and will look at it only so far as it corroborates or contradicts the statements made by the defendant’s witness with regard to the plaintiffs’ charges. Entries in a pass-book, coming from the possession of a purchaser, are evidence of an express or implied agreement to purchase at the price named in the pass-book. When the parties agree expressly or by implication on price, they are bound by it, and cannot complain that it is too high, unless on the ground of fraud; and hence, while systematic effort to overcharge, such as one of the witnesses has stated, may amount to fraud if the jury give credit to his testimony: the mere fact of an overcharge, or of a charge above what are said to be current or market rates, is but slight evidence that fraud has been committed; although such as it is I leave it to the jury.</p> <p>“ In opposition to the defendant’s evidence on this point, stands the defendant’s pass-book, which shows a long course of dealing between him and the plaintiffs, and stated accounts at successive intervals. The statement of an account need not be by a meeting between the parties for the purpose of settlement, but may equally well grow out of a statement by one party placed in the hands of the other, and acquiesced in and acted upon by him, as in this case such statements are ratified by carrying the balance struck in accounts repeatedly to others during a series of years, in a book which, like a pass-book, comes from and goes back into the hands of the party who seeks to impeach them, they are entitled to great weight, and should be held conclusive unless he can prove fraud or mistake, and not only allege the existence of error, but puts his finger upon it and establishes its existence. In this instance it is said that the defendant cannot read English; if so, it is a circumstance for the consideration of a jury, but a circumstance which would be entitled to more weight if the dispute arose out of a single transaction, or the execution of a particular instrument," instead of in the course of a business extending through many years, and affording ample opportunity for inquiry or examination. It is proved that the defendant could read figures, so that they must have informed him as to price. He knew what he had bought and used in his business, so that he need not have been in the dark with regard to kind and quality, if the plaintiffs charged more than he had agreed, or was willing to give, a comparison of one of these elements with the other would have enabled him to detect the error. Besides, if the defendant consented, expressly or impliedly, that the account should be kept in a language with which he was imperfectly acquainted, he ought, in justice to himself and the plaintiff, to have asked some one to interpret what he did not understand. The evidence of overpayment, and in support of the set-off claimed by the defendant, consists in the notes given before the bulk of the debt which the plaintiff originated.</p> <p>“ Notes proved to have been given by a purchaser to a vendor, are evidence of payment, hut are not evidence of a set-off, and although they should be presumed to have been given for an existing debt, unless there is evidence to the contrary, this presumption may be rebutted by showing that they were given for another account, and does not arise with reference to debts contracted after they are delivered.</p> <p>“ I say in answer to the first point, if the defendant could not read English, it is a circumstance for the jury, but that in view of the manner in which the accounts were kept in the defendant’s book by the plaintiffs, it was emphatically the defendant’s duty to himself and the plaintiffs, to have called in some one to have explained them to him. I say under the third point, that a note made and delivered by one man to another, and taken up by the maker is evidence of payment by the maker to the payee, but is not evidence of a debt due by the payee to the maker, nor of a set-off against the payee. I say on the first point, that the law imposes no restrictions on pass-books, and one entry is as proper in such a book as another. An entry in defendant’s passbook is or may be evidence against him, although an entry of money loaned, and not of goods sold.”</p> <p>The verdict of the jury was for the plaintiffs for $5198.20.</p> <p>The errors assigned were the charge of the court, and the admission in evidence of the check without proof that it had been presented for payment, or the drawer notified of its non-payment.</p>

This was an action of replevin brought by Dewit C. Morris against Joseph Ruch and Charles Gallen, to recover two carriages and two horses. The sheriff’s return to the writ of replevin was, “ Replevied and summoned as commanded.

This was an amicable action in which Philip H. G-oepp was plaintiff and The Borough of Bethlehem defendant. The parties agreed upon the following case stated for the opinion of the court.

<p>T0 authorize the Court of Quarter Sessions to incorporate a borough under Act of 3d April, 1851, it should appear upon the record that there is a town or village to he incorporated, and that a majority of the freeholders therein petitioned for the incorporation.</p> <p>The court has no jurisdiction to incorporate a territory of one and three-fourths miles square, a part of the lines of which run through a wilderness, and which contains no “ collection of houses collocated after a regular plan in regard to streets and lanes.”</p> <p>The want of jurisdiction can he taken advantage of in any stage of the proceedings, and is not waived hy an omission to interpose it in the court helow.</p>

<p>Where the offence of fornication was committed more than two years before the commencement of the prosecution, it is barred by the Act of Limitations of the 10th March, 1852, although the birth of the illegitimate offspring took place within two years from the prosecution.</p> <p>On an indictment the defendant may take advantage of the Statute of Limitations without pleading it.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>The facts of the case are sufficiently stated in the opinion of Ms Honour Mr. Justice Black.</p>

<p>Certificate from Nisi Prius.</p> <p>This was a bill in equity filed by John Waterman and Martha his wife, in right of said Martha.</p> <p>The bill states that Joel Middleton died in Burlington county, New Jersey, leaving his will, dated June 26, 1818, which was proved in said county September 13,1828, wherein he bequeathed to John M. Cook the interest of sixteen hundred dollars, to be paid yearly during his life, and at his decease the principal sum to such of his children by his then wife as should attain full age; that Samuel Bunting and Jediah Middleton took out letters testamentary, as executors of said will, and paid said Cook during his life the interest of said $1600, or as muela thereof as they admitted to be in their hands. That said Cook died in or about 1848. That Martha Waterman and her brother, Joel M. Cook, are the only children of testator by the wife he had at the date of the will, who attained a greater age than ten years; that she is above the age of thirty years, aaad is entitled to half the said sum of $1600, or so much thereof as remained after paying testator’s debts.</p> <p>That Samuel Bunting died about 1839, leaving Jediah Middletoaa sole surviving executor; who made bis will, dated December 7,1847, appointing Anna Middleton executrix, and James P. Ellis executor, and died in Philadelphia county, about 1851; and the said executor and executrix both took out letters testamentary from the register of wills of said couaaty, on the 12th of July, 1851, and so became executor and executrix also of the will of Joel Middleton, deceased, and at least the sum of $459.19, of the said sum of $1600, had come into the hands of Jediah Middleton, as said surviving executor, aiad remained in his haaads at the time of his death, and came since into the hands of his said executor and executrix.</p> <p>That the complainants had, within six months before filing the hill, repeatedly demanded of said executor and executrix, the half of said $1600, or so much thereof as came into or ought to he in their hands, with interest since the decease of said Cook, and have tendered them a refunding bond with two sureties, in double the sum admitted by them to have come into their hands, &c., according to the law of New Jersey, which refunding bond they now file of record.</p> <p>That though the will of Joel Middleton directed the said sum of $1600 should be caused to produce interest, the said Jediah Middleton had used the same as his own estate, and since his death, his executor and executrix, the defendants, have continued to use the same, or as much thereof as came into their hands, as the estate of their testator, and refuse to pay the same to the complainants.</p> <p>To this bill, the respondents demurred, for the following reasons:</p> <p>1. That the case is not cognisable in equity. 2. That the remedy at law is full and complete. 3. That the claim is not cognisable in this court, because less than $500. 4. That the claim comes under no head of this court’s equitable jurisdiction. 5. That defendants are not, in law, executors of Joel Middleton’s will. 6. That the remedy to recover bequests must be by action of debt, detinue, account render or on the case.</p> <p>On the 17th January, 1855, the court entered the following decree: “ The demurrer is sustained, for the reason that the present defendants cannot be treated as executors of Joel Middleton. If they have money in their hands belonging to the plaintiffs, the remedy is at law, and not in equity.”</p>

This was an action of assumpsit brought by Jacob Fink against Balliett & Hallman, to recover for work and labour .in coaling wood for the defendants. A book belonging to the defendants was produced on the trial under a notice from the plaintiff, containing the following entry:— “ Agreed with Jacob Fink to coal the Miller job and make good coal. We to pay him 32 cents per cord, and give him six yards of check in bargain, delivered up check. Jacob Fink.

Error, to the Common Pleas of Chester county. This was an action of replevin, in which William Dripps was plaintiff, and Joseph M. Christian defendant.

This was a feigned issue to determine the right to the proceeds of the personal property of Field & Siegel. George Field was engaged in the mercantile business, in the borough of Easton, and had a considerable stock of goods, and had incurred debts and liabilities in the prosecution of his business. On the 1st September, 1847, Field and John Siegel, Jr., entered into partnership in the store, and with the stock of goods which Field then had on hands.

The plaintiff, William Richardson, brought this scire facias on a mortgage against Michael Murphy, the defendant, to recover the sum of $2500. The' defendant pleaded payment with leave to-give the special matter in evidence. On the trial, the plaintiff gave in evidence the mortgage and accompanying bond, and there rested.

This was an action of assumpsit by Boggs & Kirk against Charles Hutchinson, on the following promissory note, given by the defendant to Robert Comly. $841.61. Philadelphia, January 13,1855. Four months after date I promise to pay to the order of myself, eight hundred and forty-one 61-100 dollars, without defalcation. Yalue received. Signed, Charles Hutchinson. Endorsed, Charles Hutchinson. Boaas & Kirk.

This was action of debt brought in the name of the Commonwealth of Pennsylvania, for the use of the county of Northampton, on the official bond given by Jacob Cope as sheriff. The breach assigned was the discharge of Daniel Lachenaur from custody, who had at April Sessions, 1854, been convicted of the offence of conspiracy, and on the 1.2th' May, 1854, had been sentenced to imprisonment for the term of three months, and to pay a fine of $2500 to the county.

This was a bill in equity, in. which Frederick Patterson was the complainant, and Alexander Silliman respondent. On the 1st November, 1851, the Kentucky Bank, by its agent John C. Bullett, Esquire, leased to Frederick Patterson and Alexander Silliman the veins of coal known as the “ Tuscarora” mines, situated in Schuylkill county, for the term of twenty years from the date of the lease.

<p>Error to- the District Court of Philadelphia.</p> <p>The facts of this case sufficiently, appear in the opinion of Mr. Justice Knox.</p>

<p>Error, to the Common Pleas of Chester county.</p> <p>This was an action of assumpsit, brought by the West Chester and Philadelphia Railroad Company against Eber Hickman, to recover the amount of ten shares subscribed by him to the capital stock of the company. By an Act of Assembly passed the 11th April, 1848, certain commissioners therein named were appointed to open books in the city of Philadelphia and the borough of West Chester, to take subscriptions tó the capital stock of the future corporation. The whole number of shares was fixed at 12,000, of the sum of $50 each, and also provided, that when the commissioners, or a majority of them, should certify to the governor, under oath or affirmation, that 6000 or more shares were subscribed, and that the sum of $5 had been paid on each subscribed share, he should issue letters patent incorporating the subscribers, and those who should thereafter subscribe, into a body politic, with the usual immunities and privileges. By a supplement passed to this act on the 15th April, 1850, the number of commissioners was increased, and the letters patent were to issue upon certificate that 1200 shares had been subscribed, and $5 per share paid thereon. This certificate having been previously filed, the governor, on the 18th September, 1850, issued letters patent, under the great seal of the Commonwealth, incorporating the plaintiff, and the company was duly organized on the 15th October, 185°.</p> <p>After the organization, the subscription books, which had been opened by the commissioners on the 19th June, 1848, and marked respectively “A”, “B”, and “ C”, being one for each of the counties of Philadelphia, Chester, and Delaware, were handed over to the directors, and other'books were also opened by them to fill up the authorized number of shares of stock, and these books were respectively marked “D”, “E”, “F”, “G”, “H”, “I”, “J”, “K”, ■‘‘LI” to “L 8".</p> <p>Of these books, those opened by the commissioners, and book “D”, afterwards opened by the company, were headed with the form of contract prescribed by the original act, and which was signed by all the original subscribers. After the organization of the company, a proviso was adopted and added to the form of the contract, which together were as follows:—</p> <p>“We, whose names are hereunto subscribed, do promise to pay to the president and managers of the West Chester and Philadelphia Railroad Company, the sum of $50 for every share of stock set opposite our respective names, in such manner and proportions and at such times as shall be determined by the president and managers of said company, in pursuance of an Act of General Assembly of this Commonwealth, entitled ‘An Act to authorize the Governor to incorporate the West Chester and Philadelphia Railroad Company.’ Provided, nevertheless, that the subscription hereto shall be binding only in the event of an aggregate of $300,000 being subscribed, inclusive of all former subscriptions and of such subscriptions as shall be made absolute or become so by the fulfilment of their conditions. Witness our hands, the 21st day of October, 1850.”</p> <p>This contract was subscribed by the defendant and others, in book “A”, thus:—</p> <p>“ October 31, Eber Hickman, .... 5 shares.</p> <p>“ “ Eber Hickman, .... 5 shares.”</p> <p>The same form of contract was contained in books “E” and “G”, and subscribed by various persons.</p> <p>In books “ G” and “ H”, the form of the contract is the same down to the proviso, which is as follows: “ Provided, That if the said railroad should not be located on the land of any one or more of the subscribers, then this subscription shall be of no force or effect. And provided, also, That interest shall not be payable or demanded of the subscribers, upon the shares hereto subscribed, during the construction or prior to the completion of the said railroad.”</p> <p>In book “I”, the proviso is: “Provided, nevertheless, That subscriptions hereto shall be binding in the event of the location of the road being fixed and determined by the president and managers so as to pass within one mile of the borough of Media, in the county of Delaware.”</p> <p>In book “J”, the proviso is: “That subscriptions hereto shall be binding only in the event of the location of the road being fixed and determined by the said president and managers so as to pass at or near Wilcox’s Mills, called Glenn Mills, and within one half-mile of Penn’s Grove, in the county of Delaware.”</p> <p>In the .remaining books, the contract is the same as that subscribed by the defendant in book “A.” .</p> <p>The plaintiffs proved upon the trial that the road is located through the lands of the parties subscribing upon that condition, within half a mile of Media, and that the conditions contained in the contracts in books “G”, “I”, and “ J”, had been fulfilled by the company. They also proved the regular calls for instalments of stock from 17th January, 1852, until the 14th November, 1853, on which day the tenth and last instalment of $5 per share was called for, and of all of which notice had been given in newspapers published in Philadelphia, Chester, and Delaware counties.</p> <p>The principal question on the trial was, whether the proviso qualifying the defendant’s contract was satisfied before the commencement of the action.</p> <p>Samuel B. Thomas, Esq., secretary, and late treasurer, of the company, was called to testify, and after stating that he was secretary of the company since July, 1852, and treasurer since June, 1855, and that since he had been secretary, he had possession of the books, documents, and papers of the company, and among these, the subscription-books from “A” to “L 8”, inclusive, and which have always been recognised by the corporation as the evidence of subscription to stock, and thereupon produced the same books. Whereupon the plaintiff offered the books in evidence to show the number of shares purchased and subscribed for before the commencement of this action. To this offer the defendant objected, and the court sustained the objection, and sealed a bill of exceptions.</p> <p>The plaintiff then, by the proof of handwriting of individual stockholders, proved the subscription in book “A” of 4302 shares, equal to $215,100.</p> <p>By the conveyance of land, release of damages, and for certain advantages to be enjoyed by the company, to twenty different persons, 139 shares, equal to $6950, of stock. The plaintiff also proved by S. B. Thomas the payment by instalments, either in whole or in part, of 30 shares, of which the original subscriptions had not been returned to the company, amounting to $1500.</p> <p>The plaintiff further proved by Dr. John P. Jeffries the signatures of subscribers to 518 shares, in addition to those already proved, the witness stating that his knowledge of the handwriting was obtained by going to the persons and seeing them write since the commencement of this suit, for the purpose of being able to prove their signatures; and that he was sent by the company with that view, and it was the only knowledge he had of the handwriting of the individuals subscribing, and by comparing it with the signatures contained in the books of subscription.</p> <p>They then called as a witness Francis J. Davis, and asked:— “Are you acquainted with the handwriting of F. Curran Philpot ?” (the said name appearing in the subscription-book as a subscriber to stock.) The witness answered: — “ I have seen one or two letters which purported to be written by F. Curran Philpot. They purported to come from him, and I have no doubt they did so come.” (These letters were addressed to some of the members of Mr. Galliner’s family, whose daughter the witness married.)</p> <p>The plaintiff’s counsel then proposed to ask witness, “Were the contents of those letters of such a character as to enable you to judge of certainly whether they came from Mr. Philpot, as they purported to come, or not?”</p> <p>To this question the defendant’s counsel objected. The court sustained the objection, and sealed a bill of exceptions.</p> <p>■The plaintiff’s .counsel then proposed to ask witness, “From the knowledge thus acquired of the handwriting of said Philpot, is the signature now shown to you in this subscription-book “D”, in the proper handwriting of the said Philpot, or not?”</p> <p>To this question the defendant’s counsel objected. The court sustained the objection, and sealed a bill of exceptions.</p> <p>William F. Griffits testified that he had been treasurer of the company from July, 1854, to July, 1855, and in that time had received payment in full or in part of the purchase-money of 640 shares, exclusive of those previously testified to by other witnesses. Among them, were the Lancaster Bank, 100 shares; Daniel Tyler, 34 shares; Malone, Clark & Gonder, 204 shares; B. M. Sherman, 35 shares; Richard Norris & Sons, 40 shares; Murphy & Allison, 32 shares.</p> <p>The certificates to Tyler, and to Malone, Clarke & Gonder, were issued in payment of wo'rk done by them as contractors on the road, but were not on any general list of subscribers; and the certificate to Sherman he believed to be of the same kind; and the certificate to Norris & Sons was in part payment of a locomotive for the use of the road.</p> <p>S. B. Thomas was recalled, and testified to the payment, in whole or in part, of 107 additional shares, 5 of which were to an individual for cross-ties furnished for the road; and to Sydney Fairlamb, 6 shares, in payment of land damages for right of way; and 26 additional shares to Murphy & Allison. Of the whole 58 shares, $15 was paid in cash, and the balance settled under a contract for furnishing cars for the road.</p> <p>P. Frazer Smith, Esq., was called and offered as a witness. It was admitted that he was a stockholder in the company, and upon objection made to his competency, he was rejected by the court, and a bill of exceptions sealed.</p> <p>It was admitted and agreed, that of the shares of capital stock subscribed, as proved by the plaintiff’s witnesses, 467 shares were subscribed after the 17th January, 1852, and 391 shares were upon special conditions, as contained in subscription-books “G”, “H”, “I,” and “J.”</p> <p>Of the 4302 shares subscribed in book “A,” 23 shares were released by the managers of the company to compromise disputes, and because the estate of a subscriber was insolvent.</p> <p>The plaintiff again offered, in connexion with the other proof given in the cause, the eighteen subscription books heretofore described, for the purpose of proving the number of shares subscribed to the capital stock of the company before the institution of this suit.</p> <p>The defendant’s counsel objected to the proposed evidence. The court sustained the objection, and sealed a bill of exceptions.</p> <p>On the 20th January, 1855, a resolution of the board of managers was passed, directing the secretary to give notice, calling in the stock in full, and requiring those who had paid part of the instalments to pay the balance, and those who had paid the instalments according to previous calls, be required to pay in full, on or before the 27th February, 1855, and that on failure so to do suits would be instituted against all delinquent subscribers. This notice was duly published, and this suit was brought on the 26th July, 1855. The plaintiff’s testimony being closed, the defendant declined giving any testimony. Whereupon the plaintiff requested the court to charge the jury: — ■ ’</p> <p>1. That the contract made between the plaintiff and defendant for the sale and purchase of ten shares of the capital stock of the said company being admitted, the plaintiff is entitled to recover in this action, the purchase-money of the shares so purchased, if the terms of the proviso or condition of the said contract was fulfilled before the commencement of this action.</p> <p>2. It is no objection to the proof given of this fulfilment that the managers of the company called for the payment of instalments by the resolution of January 17,1852, and subsequent resolutions before, as is alleged, the sum of $300,000 was subscribed, even if that were distinctly proved.</p> <p>3. To enable the plaintiff to recover the principal sums sued for in this action, a special advertised call is not necessary, or if so, the necessity is satisfied.by the call and publication of January, 1855, as published in Delaware, Chester, and Philadelphia counties, before suit brought.</p> <p>4. The plaintiff has given evidence for the consideration of the jury, sufficient to establish the fact of the fulfilment of the said condition before this action was brought, which, if believed, entitles the plaintiff to recover in this action.</p> <p>5. The plaintiff is entitled to recover the penalty for non-payment, of one per cent, per month, given by the Act of Assembly, upon each instalment properly called for from the time notice of such call was given by publication, and there is evidence of such calls and publication, for the consideration of the jury.</p> <p>6. The payment of $5 per share by the defendant on each share subscribed by him, after the incorporation and organization of the corporation plaintiff, in a book opened by the managers of the said company, is not requisite to the validity of the defendant’s contract. The proviso of the act of incorporation requiring such preliminary payments is confined to subscriptions made by the commissioners before the organization of the company.</p> <p>7. The evidence given by John P. Jeffries of the several signatures of subscribers to stock on the books of the company, is to be regarded as legal proof for the consideration of the jury.</p> <p>The court below (Haines, P. J.) charged the jury and answered the points as follows:—</p> <p>“This action is brought by the West Chester and Philadelphia Railroad Company against Eber Hickman, to recover the value of ten shares of stock subscribed in the said road, together with interest at the rate of one per cent, per month for non-payment. No question is made as to the authority of the company to take subscriptions and, on ordinary occasions, to enforce payment, nor is there any denial that the name of the defendant subscribing to ten shares of the stock, is in the proper handwriting of the said Eber Hickman.</p> <p>“The agreement, however, under which the defendant subscribed, being special in its character, and requiring $300,000 to be subscribed' before the said subscription should be binding, it is contended by the defendant that this requisition has not been complied with, according to the terms of the contract, and that the»plaintiffs cannot recover. The terms of the contract are as follows: — £We, whose names are hereunto subscribed, do promise to pay to the president and managers of the West Chester and Philadelphia Railroad Company the sum of $50 for every share of stock set opposite to our respective names, in such manner and proportions, and at such times, as shall be determined by the president and managers of the said company, in pursuance of an Act of the General Assembly of this Commonwealth, entitled An Act to authorize the Governor to incorporate the West Chester and Philadelphia Railroad Company. Provided, nevertheless, that the subscription hereto shall be binding only in the event of an aggregate of $300,000 being subscribed, inclusive of all former subscriptions and of such subscriptions as shall be made absolute or become so by the fulfilment of their conditions.’</p> <p>“ It cannot be denied that the plaintiffs exhibited subscriptions to an amount greater than the sum required, but many of them were of a character which excluded them from the jury-box, and these are not in evidence. Among these which the court ruled out, will be found all those having special conditions to the number of 291 shares ; all those shares of stock which were given for land damages, 149 shares; those issued for work and materials, 445; those subscribed after instalments called in; those which have been released, and also those proved by John P. Jeffries, to amount of 518 shares. These, making an aggregate of 2105 shares, and being deducted from the amount exhibited, did not leave the amount required by the agreement. In the opinion of the court, these were not available funds, such as was required by the agreement of the parties; and the plaintiffs, failing on this point, cannot recover in this action, and your verdict must be for the defendant.</p> <p>“ I might stop here, but inasmuch as the case will be taken up for revision, I deem it proper to notice another point made by the defendant’s counsel. Under the act of incorporation, the commissioners therein appointed were required to exact a payment of $5 on each share of stock subscribed, and it was provided that no subscription should be valid unless the same was then paid. This, it has been contended, extended not only to subscriptions taken before the commissioners, but also by the company after its organization. I consider this a sound objection to the recovery of the plaintiff. The terms of the Act of Assembly are peremptory, and the distinction made by the plaintiffs’ counsel between the commissioners and the company in regard to this point is, to my mind, without any sound reason. The decision in Qasey, referred to in the argument, does not rule this case. For both the foregoing reasons,' I lay it down to you that the plaintiffs have failed to sustain the action, and your verdict must be for the defendant.</p> <p>“ The plaintiffs’ counsel request me to charge on the following points:— •</p> <p>[Points read.]</p> <p>“ 1st. Considering the Act of Assembly as a part of the contract, and the payment of the sum of $5 made, the proposition may be affirmed.</p> <p>“ 2d. Had this sum been subscribed of sound available funds, directly after the instalment of that date had been called in, it would have been no objection to the fulfilment of the contract; but the proof, on the part of the plaintiffs, shows that the whole instalments had been called before some of those offered in evidence were subscribed; and it is further shown, that a comparatively large amount was subscribed after several instalments had been called in. If the company called in these subscriptions before the sum of $300,000 were subscribed, they could neither compel the payment of the principal nor the interest, as the subscription was not binding, and the call not legal. With these observations the point may be generally affirmed.</p> <p>“ 3d. I do not believe the defendant, by the call of January, 1855, could have been made accountable, if no call had been made on him previously, and he had not been accountable before that notice had been published.</p> <p>“ In other words, if the defendant’s liability had ceased prior to the call of January, 1855, that notice would not have revived it. The point, to my mind, is outside the true question at issue, and whether answered affirmatively or negatively would not affect the result.</p> <p>“ 4th. This point is directly negatived.</p> <p>“ 5th.- I have said distinctly that the plaintiffs have not proved enough to entitle them to a verdict. This it would seem to me to be sufficiently broad to include the whole case. If they cannot recover principal they cannot recover interest.</p> <p>“ 6th. This has already been answered in the negative.</p> <p>“ 7th. This is negatived.”</p> <p>A verdict was rendered for the defendant.</p> <p>The plaintiffs sued out this writ, and assigned for error, the rejection of the subscription-hooks, the evidence of Davis in relation to Mr. Philpot’s handwriting, and also in rejecting P. Frazer Smith, Esq., as a witness. The charge of the court and the answers to the points were likewise assigned for error.</p>

<p>Where F., a director of a railroad company, upon consultation with friends and acquaintances of C., a large stockholder in the company, subscribed for him and in his name for forty additional shares of stock, to relieve the company from embarrassment, C. being at the time a resident of a foreign country, and immediately advised C. of what he had done, who never made any reply, either to F. or to the company, and the accruing dividends on the original stock of C. were applied by the company to the. payment of the stock so subscribed for him, and nearly seven years after the stock was subscribed, and he informed of it, he demanded and sued for the dividends declared upon the original stock, alleging that the subscription of stock by F. was unauthorized by him, it was Held, —-</p> <p>1. That the silence of G. for so long a period after being informed of the fact, was evidence to be submitted to a jury of his ratification of the act of F. in making the subscription.</p> <p>2. That the ratification of an unauthorized act by the silence of the party, is not confined to cases where the relation of principal and agent exists between the person doing the act and the party to be affected by it.</p> <p>3. The silence of the party, with a knowledge of what has been done for him and in his name, is evidence of ratification, more or less expressive according to the circumstances in which it occurs. *</p> <p>4. Although ratification- of an unauthorized act of a stranger may not be implied as a conclusion of law from -the silence of the party, yet it is not therefore incompetent to be submitted to a jury as a circumstance from which with others they may imply such ratification.</p> <p>5. A director of a railway stands in a fiduciary relation to a stockholder, and in acting for him in his absence, cannot be regarded altogether as a stranger or intermeddler.</p> <p>6. The statute of limitations will not run against the dividends of a stockholder in an incorporated company, in this state, until after demand and refusal, or notice to the shareholder that his right to the dividends is denied.</p> <p>7. Whether it would be a bar in any event under the Act of 1847, dubiiatur.</p>

This was an action of assumpsit brought by The West Chester and Philadelphia Railroad Company, to recover from William. Held: which certificate or evidence of stock shall be transferable at his or her pleasure, in person or by attorney duly authorized, in the presence of the president or treasurer, one of whom shall keep a book for that purpose, subject however to all payments due or to become due thereon.’ It does not, and it cannot, however, absolve the…

<p>Error to tbe Common Pleas of Northampton county.</p> <p>This was an action brought before a justice of the peace by the Township of Forks against Peter Woodring, to recover the sum of $34.57 expended by the supervisors of the township in making repairs to certain bridges, which repairs it was alleged the defendant, Woodring, was bound to make. The case was brought to the Common Pleas by appeal, and narr. filed, which, under the rules of court for the third judicial district in all appeals from justices of the peace, is in indebitatus assumpsit for money had and received by the defendant to and for the use of the plaintiff. The defendant was the owner of a mill, and the bridges in question were over the head-race which conveyed the water through his own land to his mill at the points where it crossed two public roads. These roads were laid out and used before the race was dug. About the year 1806, a man by the name of Andrew Stocker, who then owned the mill, dug the race so as to obtain a greater fall of water, and placed bridges over it at the points where it crossed the roads, and kept them in repair so long as he continued owner of the mill. The premises passed through several owners, all of whom it was alleged had successively made the necessary repairs to the bridges.</p> <p>The defendant became the owner of the mill property in 1842. In the year 1849 the bridges became dilapidated, and, according to some of the witnesses, dangerous for heavily laden teams, and the supervisors of Porks township, in which they were situated, notified the defendant to have them repaired. Having failed to do so, the supervisors made the repairs at the expense of the township, and thereupon this suit was brought.</p> <p>The defendant submitted the following points:—</p> <p>1st. That there has been no legal obligation shown requiring defendant to keep these bridges in repair, and therefore plaintiff cannot recover.</p> <p>2d. That no legal presumption arises to make defendant liable, if it even has been proved that the former owners of this mill site did repair these bridges.</p> <p>3d. That, if even defendant was bound to keep these bridges in repair, this action is not the way to compel him, and cannot be sustained. If liable, he is subject to indictment for refusing, and not to a civil action for the recovery of the amount expended by the township.</p> <p>4th. That, there being no proof that, as defendant ever requested the township to make these repairs, their so doing was a voluntary courtesy, so far as defendant was concerned, and this action cannot be sustained.</p> <p>5th. That, the proof being that the payment for these repairs had not been made by plaintiff, when this suit was brought, there can be no recovery by them in this suit.</p> <p>6th. If even the court should be of opinion that, under the law and evidence in this case, defendant was bound to keep these bridges in repair, and could be sued in an action like this, for work done upon them by the supervisors, plaintiffs cannot recover unless they have proved that there was añ actual necessity for the work that was done.</p> <p>The court helow answered the 4th and 6th points of defendant in the negative, and the 5th in the affirmative. And on the questions arising on the first three points, charged that the action might be sustained as brought, reserving the point whether Wood-ring, the defendant, by virtue of the agreement of his predecessors in the estate to repair, is liable in this action for money expended by the plaintiff in repairing the bridges ?</p> <p>The jury found for the plaintiff $43.66. A motion was made for a new trial, the rule for which, after argument, was discharged, and judgment entered for the defendant on the point reserved, non obstante veredieto.</p> <p>The error assigned was, That judgment should have been entered on the verdict in favour of the plaintiff.</p>

<p>A testator devised his real estate to his son W., and then bequeathed to his daughter J. “ the sum of $300 to her, her heirs and assigns, to be paid within one year after my decease by my son W. out of the profits of the real estate bequeathed to him.” He afterwards in his lifetime, by articles of agreement, contracted with his son to convey the real estate devised to him in consideration of §3600 payable on delivery of the deed. A deed was afterwards delivered, but no money was paid nor obligations given for the consideration. But by proceedings before an auditor in the Orphans’ Court it was found that the consideration was the support and maintenance of the grantor and his wife for life, and the payment of the §300 given by the will to the testator’s daughter. It was Held,</p> <p>1. That the legacy to the daughter was demonstrative and not specific.</p> <p>2. That the real estate charged was a mere auxiliary fund provided to secure its payment.</p> <p>3. That a subsequent sale of such real estate by the testator in his lifetime, does not extinguish the legacy.</p>

<p>A testator devised and bequeathed the residue of his estate to his executors “ in trust to collect the rents, income, and interest, and to pay one equal fourth part” to and for the use of each of his four children respectively. Among which residuary estate, was stock held by the testator in a manufacturing company, upon which large surplus profits over and above the current dividends declared had accumulated, and continued to accumulate for several years after his death, when with the consent of the executors and legatees, the capital stock of the company was increased, and the new stock distributed among the stockholders in proportion to the stock held by them respectively, and the old certificates issued to the testator were surrendered and cancelled, and new certificates for the whole amount of stock, including the increase, were issued to the executors, the surplus earnings or profits being applied to the payment of such increased shares of stock. It was Held,</p> <p>1. That the surplus fund accumulated by the company over and above the current dividends at the time of the death of the testator, was a part of the principal of the fund and was subject to the trusts contained in the will.</p> <p>2. That the surplus fund accumulated at the time of the death of the testator, was so essentially a part of the stock itself, that it would have passed by a sale of the stock alone.</p> <p>3. That there was no bequest to the legatees of the stock itself, but only of the income of it, and their interest in that is limited to the rents or dividends accruing after the death of the testator.</p> <p>4. That the accumulations on the stock after the death of the testator, were as much a part of the income of the principal as the current dividends, and as such belong to the legatee of the income or profits for life.</p> <p>5. Such accumulations after the death of the testator, although they might be withheld for a time upon reasons beneficial to the interests of the parties entitled, the right to them could not be affected by any mode adopted for their distribution, or the evidences given to secure them.</p> <p>6. The value of the stock held by the testator at the time of his death, represented by an equal amount in value of the new stock issued, is the principal, and remains subject to the trusts in the will; and the remainder, although in the form of certificates of stock, is to be regarded as income since his death, and to be distributed accordingly.</p> <p>7. The principle of judicial convenience, which rejects apportionments of income or payments recurring at brief intervals of time, is to be restricted to current dividends and payments, and has no application to large accumulations extending over a number of years.</p>

Peter Mayer died on or about the 25th January, 1846, having first made his last will and testament, in which he appointed A. K. Witman and A. Grcisinger his executors, who took upon themselves the trust, and filed an account in August, 1847. Upon this auditors were appointed, and the report filed and confirmed in February, 1848.

<p>Where an Act of Assembly incorporating a bank declared that its affairs should be conducted by thirteen directors, “ a majority of whom, the president being one, shall form a quorum for the transaction of business, but ordinary discounts may be made by the president and four directors,” Held, that the president or cashier could not lawfully discount paper for the bank without the presence and concurrence of the requisite number of directors mentioned in the act.</p> <p>Where the charter of a bank declared that, “ the rate of discount at which loans shall be made, shall not exceed one-half of one per centum for thirty days,” Held, that the bank could not by any arrangement or contrivance exceed the limited rate of discount without violating its fundamental law and running counter to the chief end of its existence.</p> <p>A stockholder in a bank is entitled to an injunction to restrain its officers from the continued commission of acts which are contrary to law, and may endanger the existence of the charter, where, upon the affidavits exhibited on both sides, the truth of the charges is left in doubt. Under such circumstances the awarding of an injunction can do no injury, and only gives the stockholders a proper measure of protection.</p>

<p>This was a motion to quash a writ of quo warranto issued out of this court, at the relation of the Attorney-General against the. Commercial Bank of Pennsylvania.</p> <p>The information upon which the writ had issued charged that the bank had been incorporated by an Act of Assembly passed 21st March, 1814; that in and by said act it was expressly enacted and declared to be a fundamental article of said corporation, that the rate of discount at which loans might be made by the said corporation should not exceed one-half of one per centum for thirty days; that in and by said act it was also expressly enacted and declared to be a fundamental article of said corporation, that the said corporation should not deal or trade in anything but bills of exchange, gold or silver bullion, stocks of banks incorporated by the state of Pennsylvania, and United States treasury notes, or goods pledged to the said corporation for money lent and not redeemed in due time, or goods which might be the produce of their lands; that by an Act passed 25th March, 1824, the charter of said bank was continued to the 1st Wednesday of May, 1835; that by several subsequent acts, viz. 2d March, 1831, 26th April, 1844, and 2d April, 1849, the said charter had been further continued from time to time by the legislature, subject to all the provisions, restrictions, and limitations contained in the original act of incorporation; that the said bank had repeatedly violated and broken the fundamental articles of their act of incorporation, and greatly perverted and abused their corporate powers in this, that for many months past the said bank had been in the constant practice of discounting promissory notes at exorbitant and usurious rates of interest, far exceeding the rate of one-half of one per centum for thirty days; that the said bank received, in the month of May, 1854, $2115.50 for such usurious, unlawful, and prohibited discount; in the month of June, $1845.50; in July, $2213; in August, $1727.50; in September, $1160; in October, $2040; that between May and October the said bank received between eleven and twelve thousand dollars, profits made exclusively from usurious discounts of promissory notes. That the said bank had also for a long time past, to wit, from the 1st May, 1854, been engaged in dealing in promissory notes contrary to the express prohibition contained in the fundamental articles of incorporation. That the said bank, in committing the several unlawful acts aforesaid, have wilfully abused their corporate powers, perverted the objects for which they were incorporated, usurped powers and functions which were expressly prohibited to them in their fundamental law, and by reason of the said abuses, usurpations, and unlawful acts, have forfeited the corporate rights and franchises conferred upon them by the several Acts of Assembly aforesaid.</p> <p>The defendants filed the following reasons in support of their motion to quash the writ of quo warranto :—</p> <p>1. Because the suggestion does not set forth with legal precision the facts upon which is founded the charge of the said supposed usury.</p> <p>2. Because the-suggestion is defective in this — that it sets forth legal conclusions instead of facts — that it sets forth, instead of specific offences -against the charter, vague and undefined generalities not capable of being met and answered.</p> <p>3. Because the case set up is not a case- of forfeiture under the law.</p> <p>4. Because, if it were a case of forfeiture, the discretion of the court would induce them to forbear the imposition of so great a penalty upon the offence laid.</p> <p>5. Because there is not to be found in the case anything to lead the court in the' discretionary exercise of their authority over the writ to grant a rule:</p> <p>Upon the calling of the motion the counsel for the Commonwealth moved for leave to amend their information by adding twelve additional counts, which set forth the offences charged in the original information in a variety of ways.</p>

<p>Quo warranto. This case was argued on several demurrers taken by the defendant to an information filed by the attorney-general, upon which information a writ of quo warranto had issued out of this court. The original information consisted of two counts. In the lsi count it was charged that the defendant “ for many months past has been in the constant practice of discounting promissory notes at rates of discount exceeding one-half of one per centum for thirty days.” In the 2d count it was charged that the defendant “ has for a long time past, to wit, from the 1st May, 1854, been engaged in dealing in promissory notes, contrary to the express prohibition contained in the fundamental articles of incorporation.”</p> <p>The original information had, upon motion of the Commonwealth’s counsel, been amended by filing twelve additional counts. Of these the 8th count charged that the bank “ for many months past has been in the constant practice of discounting promissory notes at exorbitant and usurious rates of interest far exceeding the rate of one-half of one per centum for thirty days — that the bank on the 8th May, 1854, discounted certain promissory notes, and received an usurious, unlawful, and prohibited interest or discount for so doing, amounting to $233.50;” and setting out the same offence in the same terms on forty-three other days, with the amounts of usurious discounts received on each day.'</p> <p>The 9th count charged that the bank “ heretofore, to wit, on the 26th October, 1854, and at divers other days before and since, discounted promissory notes at rates of discount exceeding one-half of one per centum for thirty days.”</p> <p>The 10th count charged that the bank “ heretofore, to wit, on the 31st day of August, 1853, and at divers other days before and since, discounted bills of exchange at rates of discount exceeding one-half of one per centum for thirty days.”</p> <p>The 11 th count charged that the bank “ heretofore, to wit, on the 4th May, 1854, and at divers other days before and since, made loans at rates of discount exceeding one-half of one per centum for thirty days.”</p> <p>The 12th count charged that the bank “ on the 31st August, 1853, discounted a bill of exchange for the sum of $5000, dated the 4th August, 1853, drawn by S. L. Hodge upon Farnham, Kirk-ham & Co., Philadelphia, accepted by them, and payable at the city of Philadelphia, 6 months after date — that the bank discounted this bill at a rate of discount greatly exceeding one-half of one per centum for thirty days, viz., at the rate of one and one-eighth of one per centum for thirty days, with intent to evade and violate the law,” &c.</p> <p>The 13th count was the same as the 12th, except that the bill of exchange which was alleged to have been discounted at a usurious rate, was of different date. It was for the same amount, between the same parties, and va-s, like the other, payable at Philadelphia.</p> <p>The 14th count charged that the bank, “ on the 6th July, 1854, and on divers other days, before and since, has dealt in promissory notes, by purchasing the same at rates of discount greatly exceeding the rate of one-half of one per centum for thirty days.”</p> <p>To this information the defendants first demurred generally; under which demurrer they raised the question, whether the attorney-general, since the passage of the Act of 3d May, 1850, relating to district attorneys, had authority to institute this proceeding against them.</p> <p>They also demurred specially to each several count of the information, and assigned as causes of demurrer:—</p> <p>1. That in all the counts the defendants are averred to be subject to the fundamental articles, provisions, and restrictions contained in the original Act of Incorporation of 21st March, 1814, and in the Act of 25th March, 1824; whereas it appears, by the several Acts of Assembly referred to in said counts, that their corporate existence had been extended from time to time, and that, by virtue of the Act of 2d April, 1849, extending the charter for fifteen years, they became subject to the General Bank Act of 16th April, Í850, and that, consequently, they ceased to be subject to the Acts of 1814 and 1824.</p> <p>2. They assigned as causes of demurrer to the 1st, 8th, 9th, 10th, 12th, 13th, and 14th counts, that the said counts do not aver that the said supposed discounts were upon loans made by said defendants.</p> <p>3. They assigned as causes of demurrer to the 1st, 8th, 9th, 10th, 11th, 12th, 13th, and 14th counts, that the said counts do not specify any of the particulars of such alleged unlawful discounts — that they do not specify the names of parties, the dates of the discounts, the time of forbearance, the sums forborne, or the sums to be paid for such forbearance.</p> <p>4. They assigned as causes of demurrer to the 2d and 14th counts, that they are therein charged with dealing in promissory notes “ contrary to the express prohibition contained in the fundamental articles of incorporation,” whereas no such prohibition is contained in such fundamental articles.</p> <p>5. They also assigned as cause of demurrer to the 2d and 14th counts, that they are therein charged with dealing in promissory notes, but that the said counts do not allege any facts to maintain such averments, or any of the particulars of such alleged dealing.</p> <p>6. They also assigned as causes of demurrer to the 1st and 14th counts, that they were double and multifarious.</p>

This was an action of ejectment by Richard D. Wood and John Deverenx against John Eigard for sixty acres of land. The land in dispute is part of a tract which was surveyed on the 23d May, 1797, in pursuance of a warrant dated October 20, 1796, to John Belt, whose title by regular conveyances became vested in the plaintiffs, to whom the Commonwealth granted a patent on the 24th January, 1855.

<p>Error to the Common Pleas of Perry county.</p> <p>This was an action of covenant, by James Rice against Henry Hippie, to recover the arrearages of ground-rent reserved in a deed. On the 30th October, 1795, Abraham Landis was the owner of a tract of land in what is now Perry county. He caused to be made and signed the following:—</p> <p>“ Articles of agreement between Abraham Landis, of, &c., and the purchasers of tickets for the drawing of lots to be by him laid out in the manner hereafter mentioned, on his tract of land in Tyrone township, &c. — Witnesseth that said Abraham Landis is to lay out 72 lots, beginning at the great road, &c. [Description of land and manner of laying out lots.] Every purchaser of a ticket or tickets for the drawing of a lot or lots, shall be entitled to receive a ticket or tickets upon their signing this article and paying three pounds for each ticket, which ticket when drawn shall be entitled to the number or lot drawn against its number, for the making of a good and sufficient deed of conveyance (subject to the yearly ground-rent of one dollar, now valued at seven shillings and six pence), I, the said Abraham Landis, do hereby bind myself, and we, the purchasers of tickets, do hereby obligate ourselves to build a house two story high on the front of each lot, which building or some other house of such height on some part of such lot as such purchaser may choose, always leaving room for building two story houses on the front of said lots, or higher, if they see cause, and also in all such buildings there must be no other than stone or brick chimneys; and, further, we, the said purchasers, do each of us bind ourselves to make a building of some of the aforementioned description within the space of three years from the drawing of the lots, otherwise to give up and quit all claim to such lot or lots as are not so improven and built upon, and, of the time of drawing said lottery, I, the aforesaid Abraham Landis, do undertake to give public notice by advertisement at least three weeks before the drawing of the lottery. For the true performance,” &c. Dated 1795. Recorded 3d November, 1806.</p> <p>John Bigler became the purchaser of a ticket, and drew lot No. 13, in the town of Landisburg, for which Landis executed and delivered to him a deed, in which, after reciting his title and the making and drawing of the lottery, and that Bigler drew lot No. 13, “ he for, and in consideration of, the sum of ¿63 lawful money to him in hand, paid by the said John Bigler, at and before the ensealing and delivery of these presents, for one ticket in the above-mentioned lottery.” He conveys to him in fee simple, with following reservation: “ And it is further covenanted and agreed by the said John Bigler, for himself, his heirs, executors, administrators, or assigns, to and with the said Landis, his heirs, executors, administrators, or assigns, that he or they will pay, or the said lot is subject to the payment of, the yearly ground-rent of one dollar, valued at seven shillings and six pence, and the purchaser is likewise obliged to build a house two stories high on the front of each lot, which building, or some other house of such height on some part of such lot as such purchaser shall choose, always leaving room for two story houses on the front of each lot, or higher if they see cause; and, in all such buildings, there must be no other than stone or brick chimneys, and such within three years after the time of drawing said lots, otherwise to give up and quit all claim to such lot or lots as are not improven or built upon in the said time.”</p> <p>Abraham Landis’s claim to the quit-rents, by a regular chain of conveyances, is vested in the plaintiff, James Rice, who claims to recover the ground-rent for sixteen years. And Henry Hippie, by a regular chain of conveyances, holds the title of John Bigler to lot No. 13.</p> <p>The foregoing facts were agreed upon in the nature of a case, for the opinion of the court, whether the plaintiff has any legal claim to quit-rents, or such a claim as the law will enforce.</p> <p>The court below (Graham, P. J.) gave the following opinion, and entered judgment for the plaintiff on the case stated:—</p> <p>“ There is no conflict of testimony in this case, and the counsel have submitted it to the court upon the foregoing evidence, to be considered a case stated for the opinion of the court, upon which judgment shall be entered, the question presented being one of law for the court to decide, and not a fact for a jury, and either party to take a writ of error without oath or bail. The town of Landisburg w'as laid out by Abraham Landis, the proprietor, in 1793. The lots were assigned to ticket holders by lottery. There were no blanks, but each holder of a ticket received the lot drawn against the number of his ticket. The holders paid £3 for a ticket, and in addition to the price paid for a ticket, each lot was to be subject to a yearly ground-rent of one dollar, and to be conveyed by the proprietor subject to said rent. Lot No. 13 was drawn by John Bigler and conveyed to him by Abraham Landis, by deed dated 9th November, 1807, for the consideration of ¿63. In the deed there is the following clause: — ‘ And it is further covenanted and agreed by the said John - Bigler for himself, his heirs, executors, administrators, or assigns, to and with the said Abraham Landis, his heirs, executors, administrators, or assigns, that he or they will pay, or the said lot is subject to the payment of the yearly ground-rent of one dollar, valued at seven shillings and six pence.’ It is admitted that the defendant is in possession of this lot No. 13, by regular chain of title from John Bigler the alienee of Abraham Landis, and that the quit-rents are claimed and unpaid from 1841. The evidence shows that the plaintiff, by regular chain of title from Abraham Landis, is the owner of the quit-rents.</p> <p>“ The defendant’s counsel contend that the lot being disposed of by lottery, as recited in the deed and quit-rents reserved, there can be no recovery — that the consideration grows out of an illegal transaction.</p> <p>“ If this suit was to recover the price of the ticket (£3), there could be no recovery, for the mode in which the lots were assigned to ticket holders would bring the case within the provisions of the Act of 17th February, 1762, and the case of Seidenbender v. Charles, 4 S. $ M. 151. That case was an action' upon a note given for the price of a ticket.</p> <p>“ The present case is different. The lottery only decided the choice of lots, which we presume were of unequal value. The price of each ticket was ¿63, and every lot was subject to a ground-rent of one dollar per year. This reservation was retained in the real estate by Landis, the proprietor of the town, and' although he may have disposed of a part of his interest in the realty in an illegal manner, which would have prevented him from recovering the price to be paid for the interest conveyed, this could not affect the validity of his title to the estate or interest retained which he never agreed or intended to convey.</p> <p>■“ Suppose Landis, in place of reserving, by the terms- of his lottery and subsequent deeds, a ground-rent of one dollar upon each lot, had only stipulated to convey, and actually conveyed the one undivided half of each lot, could the purchasers, after obtaining their deeds for an undivided half, not only have refused to pay the purchase-money, but taken the whole because the mode adopted to dispose of the half was illegal? But this attempt now to claim an interest which they never purchased, is virtually the same. That a ground-rent is real estate is decided in Cobb v. Biddle, 2 Karris 445, Juvenal v. Patterson, 10 Barr 283, and the other authorities there cited. The defendant too is without merit. The lot has doubtless passed through many intermediate hands from 1807 down to the present claimant with this reservation upon the face of the title. The rents it appears were paid till 1841, and there would be no equity in giving him what he never purchased, and what those from whom he derives his title never claimed.</p> <p>“ Judgment is entered for the plaintiff for $ 16 up to 1st of April, 1856.”</p> <p>The error assigned was that the court below erred in entering judgment for the plaintiff on the case stated.</p>

<p>Error to tbe Common Pleas of Dauphin county.</p> <p>This was an action of ejectment brought by William Willis to recover from Charles Swartz a small piece or strip of ground, fronting nineteen and one-half inches on State street, in the borough of Harrisburg, and extending in depth one hundred and seven feet six inches, at which place it is twenty-one inches in width. William Willis, in 1842, was the owner of a lot of ground containing fifty feet in front on State street, and in that part of Harrisburg formerly known as “ Maclavsburg,” bounded by State street, Myrtle alley and a ten feet alley, and extending back one hundred and seven feet six inches to other property belonging to him. Some time in the summer or spring of 1842, Willis agreed to sell to the defendant, Swartz, the eastern half of this lot, to begin twenty-five feet from the corner of Myrtle alley, and extend to the ten feet alley. Swartz being desirous of building a house upon the lot, he procured Daniel E. Wilt, with whom he had contracted to build his house, to assist in staking off the ground, and who on the trial testified as follows: — _</p> <p>“ I was the contractor to build this house on State street for Swartz; I was called on by Swartz in the latter end of June or beginning of July, 1842, to come and stake off the ground to put his cellar wall on; no house then there but the one on the corner of Second and State streets, none on State street; a steep bank there; I took along with me a" ten foot pole; as we were going up we told Willis we wished to stake off the building; he came there; I asked him if regulators had given them a starting point ? he said they had; he walked down the bank, and there was a stake drove in; they had drawn a pencil-mark across it for a corner; Willis said that was the corner of his lot, and fifty feet from that up was his ground; that Swartz was to have the upper twenty-five feet, and the lower twenty-five feet he was going to keep for himself; the ground was very uneven; we' drove the stakes and drew a line tight, and Willis and myself measured off the twenty-five feet, and then drove centre stakes where Swartz’s corner was; then measured off the other twenty-five feet; Willis there all the time till we were done; he said he had fifty feet there; I commenced where we put the twenty-five feet stake to build the house; foundation dug out for the cellar wall; I guess the foundation was dug out the next day, where I put the stakes; Squire Davis, Shoemaker, and Samuel Bryan, were then the regulators. Willis said the regulators had regulated it; the house was finished that fall by me.”</p> <p>On the 20th August, 1842, Willis and wife executed and delivered to Swartz a deed for the lot sold, in which the lot is described as “ beginning at a post on State street, in the borough of Harrisburg, twenty-five feet from the corner of State street and Hawthorn or Myrtle alley; thence along State street towards Third street, twenty-five feet to a post, the corner of a private ten foot alley; thence along said ten foot alley towards South street, one hundred and seven feet six inches to a post on other property of said Willis; thence at right angles along the line of other property of the said Willis, towards Hawthorn or Myrtle alley, twenty-five feet to a post; thence towards State street, one hundred and seven feet six inches to the place of beginning, being part of two lots numbered in the plan of Maclaysburg with the numbers ‘ ten’ and ‘ eleven.’ ”</p> <p>Swartz executed a mortgage to Willis on the same day to secure the consideration, and in which the premises were described in the same words.</p> <p>The court below (Pearson, P. J.), after stating the circumstances connected with the case and reviewing the testimony, instructed the jury as follows:—</p> <p>“ The case turns on the faets.proved by Mr. Wilt. If the plaintiff pointed out his corner on Myrtle alley, and assisted in measuring off his lot, and fixed the corner between his and defendant’s lots, and aided in the location of the site of defendant’s house, even by mistake, he cannot now have his mistake corrected to the injury of the defendant. If he committed a mistake then in fixing the boundary of the lot he had sold and was about to convey, and the defendant took possession and made improvements under a mutual mistake, he must hold. Where one of two innocent persons must suffer through a mistake, he whose act caused it shall suffer, rather than throw the loss on an innocent man. There can then be no recovery of any portion of the house, if you believe the evidence of Mr. Wilt, and that both vendor and vendee were equally ignorant and honestly mistaken. The residue of the lot, it is contended, stands on a different basis. That but little, if any, improvement was made on it. If you believe the plaintiff fixed the stake, as stated by Wilt, for a division between him and defendant, and a few weeks after made a deed calling for straight lines, and at that time it was his intention to convey, and the defendant to receive a deed by the same corner and landmark shown and fixed, running through to the rear of the lot without offset, that line cannot now be changed, although the defendant thereby obtains about one foot eight inches more front than was intended to be conveyed. He will hold the land between that stake and the ten foot alley.</p> <p>“ A correction of such an error now might throw the defendant’s lot into a less advantageous shape than he had a right to expect at the time of the purchase. It is quite probable that the plaintiff lost land from the west side of his lot, by a change in the east line of Myrtle alley, and that the defendant gained land by a change of the ten foot alley; of that you will judge; and that supposition is strengthened by the alleged' fact that plaintiff’s ■western fence, until within the last four years, stood out further on the alley than it is now erected; that it had to be moved to correspond with the line of the alley. But all of these facts will not change the position of the parties if the plaintiff pointed out the spot, stated by Wilt, as the line of defendant’s lot, and intended to sell and convey, and the defendant to buy and receive by that line. It must stand, notwithstanding the loss which the plaintiff has suffered on the west, and the probable mistake in fixing the line between them.”</p> <p>The jury found for the defendant; and the plaintiff thereupon removed the cause to this court, and assigned the charge of the court for error.</p>

<p>If one of several tenants in common purchase an outstanding title, it will enure to the benefit of all.</p> <p>If the land be sold at treasurer’s sale to a stranger, and a tenant in common takes an assignment of the deed before the time for redemption has expired, it will confer upon him no independent title as against his co-tenants in common.</p> <p>The declaration of a vendee at the time of making a purchase of land, that “he was going to buy it for his son,” without any proof of a previous agreement to do so, or evidence that the son furnished the money to pay for it, is insufficient to create a trust in favour of the son.</p> <p>A receipt in a deed for the purchase-money, is no evidence whatever of the fact of its payment against a stranger, but is a mere ex parte declaration, not under oath, and taken without any opportunity to cross-examine.</p> <p>Where a party claims as a bona fide purchaser for a valuable consideration paid, without notice of a trust, he must affirmatively prove the payment of the consideration by other evidence than the receipt upon the deed.</p>

<p>Written articles of agreement for the purchase and sale of land, may be waived or surrendered by parol.</p> <p>A mere parol agreement which is insufficient to ground a decree for specific performance, may be sufficient to rebut an equity.</p> <p>If a vendee who had paid no part of the purchase-money, with the consent of the vendor cancelled and destroyed the articles of agreement, he had thereafter no estate in the land which would be bound by the lien of a judgment against him, or pass by a sheriff's sale, under process issued upon such judgment.</p> <p>If a debtor have no title to, or interest in land, evidence that the transfer of such land from the legal owner to a third party, was accompanied with declarations that it was done to defraud his creditors, or the transfer made even with that motive, is immaterial and irrelevant, as the creditors have no such relation to the subject matter as entitles them to impeach the transfer.</p>

This was an action of ejectment by George Shryock against Daniel Waggoner, Zachariah Cullison, Susannah Cullison, Ferdinand Rath, and Mary Rath, for fifty-five acres of land.

This was an action of ejectment by Samuel W. Sharp against Jacob Long and Hugh Y. Brady, for a tract of land containing 176 acres. The title to the premises had been in James McKeehan the elder, who lived upon them many years, and made his will dated the 16th November, 1829, and admitted to probate on the 29th March, 1831.

<p>That a draft drawn by a firm is payable to the order of one of the partners, and by him endorsed, is not an indication that it was not drawn by the firm, in the usual course of its business.</p> <p>Where a draft or bill drawn in the name of a firm by one of the partners, is offered for discount, the presumption is, that the drawing of the draft was a partnership transaction, even though it was made payable to the order of one of the members of the firm.</p> <p>Actual knowledge that negotiable paper was given without the consent of a partner, is a good defence to the non-consenting partner, but the presumption that the paper is what it purports to be cannot be overthrown by a mere matter of form in inserting the name of one of the members of the fiz’m as payee.</p> <p>If a note of the firm be given for the private debt of one of the partners, the right of the person receiving to recover, will depend upon the consent of the remaining partners: but the paper is good against the firm in the hands of a bonafi.de lzolder.</p> <p>That'the draft or bill was discounted at the request of the partner who drew the draft in the name of the firm, and whose name was inserted as payee, and who endorsed it, and that the proceeds were drawn by him, does not change the presumption that the paper was what it purported to be. limasen v. Nogley, Mohan & Go., 1 Casey 297.</p> <p>In an action against the firm, on such papei-, it is not error to reject evidence showing that the partner having the paper discounted appropriated the proceeds to his own use.</p> <p>Evidence that the partners held the real estate, used in their partnership tz’ansactions as tenants in common, and that the counsel of one of the partnez-s advised him not to enter into partnership, or that the partner having the paper discounted, did not pay over to the other partner his proportion of the profits of the concern, having no tendency to disprove the existence of partnership, is not admissible.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>This action was originally brought before a justice of the peace by Samuel E. Schmeck against Tobias Barto, on the following promissory note:—</p> <p>“ $50.00. “ Reading, June 9, 1852.</p> <p>“ On demand, I promise to pay to Levan Mannerback, or order, fifty dollars without defalcation, for value received.</p> <p>“William Regar.”</p> <p>Endorsed,</p> <p>“ Tobias Barto,</p> <p>“Levan Mannerback.”</p> <p>The summons issued on the 6th December, 1854, and was carried to the Common Pleas by appeal. The only witness examined for the plaintiff in the court below was Matthias Mengel, Esq., who testified as follows:—</p> <p>“I am acquainted with William Regar’s handwriting (note shown him); believe that to be his signature. Am acquainted with Tobias Barto’s handwriting; believe his name on back to.be his handwriting. Am acquainted with Levan Mannerback’s handwriting ; that is his signature; believe William Regar was insolvent when this suit was brought. Constable returned nulla Iona at that time. Summons issued by me on December 6, 1854, served December 7, 1854.</p> <p>“ My impression is, Levan Mannerback’s name was not on note when it was brought to me. Can’t say that I gave Barto notice before suit brought; don’t think note was in my hands ten days before suit brought.”</p> <p>The court below (Jones, P. J.) charged the jury as follows: — ■</p> <p>“ From Kyner v. Shower we must infer that Barto intended to give credit to Regar’s paper as an original promissor — but in what character, and how far, depends on circumstances. Whether absolutely bound as surety, or contingently as guarantor, the character might be shown by proof, but we have none in this case —we have nothing but the naked facts, that these signatures are those of the maker of the note and of Barto, and that the maker was insolvent before the proceeding was instituted against Barto. That being so, and this being a note endorsed by Barto out of the usual course, the engagement of Barto with regard to it is to meet any form of engagement that the payee might see fit to write over his name; as against Barto, it is all one, as if the note was joint and several by him and Regar. The holder could write such an engagement over his name.</p> <p>“ The jury will find for the plaintiff.”</p> <p>The verdict and judgment being for the plaintiff, the defendant removed the cause to this court, and assigned the charge of the court, and direction to find for the plaintiff, for error.</p>

This was an attachment execution at the suit of Patrick Mangan against Jacob Miller, John Elliott, and John Charters, with notice to the Lebanon Bank as garnishee. Mangan had a judgment against the defendants obtained on the 19th April, 1852, for $382.52. On the 26th day of September, 1856, Jacob Miller, one of the defendants in the above-recited judgment, deposited in the Lebanon Bank the sum of $440, and received a certificate for it as follows: — ■ “ $440.

<p>A notice of tbe dishonour of a note, endorsed by the testator, given to one named as executor in the will, who had not joined in the probate or qualified as executor, but who had not renounced at the time of the notice, and who did not refuse the notice, is sufficient to charge the estate.</p> <p>The law treats executors appointed in a will, as entitled to the office until they renounce it, if they are not legally incompetent to fill it.</p> <p>If competent, their appointment avails to make them the representatives of the estate so far as relates to acts in which they are merely passive, before they have qualified themselves for the active duties of the trust.</p> <p>The appointment of executors is only provisional, and requires the approval of the law before it is complete; and hence the title to the office is derived rather from the law than the will. Per Lowme, J.</p>

John Herr died in 1838, having made his last will and testament in writing, dated the 16th August, 1837.

On the 4th December, 1854, Margaret Weigand presented her petition to the Orphans’ Court of Lancaster county, setting forth, That her father Henry Shirk died in the year 1836, leaving a will, containing the following provision : — “ I give and bequeath to my daughter Margaret, the interest arising from a bond on my son Henry, marked No. 6, dated March 4th, 1824, for $500, the principal to be secured by my executors, and the interest thereof paid to her yearly and every year…

<p>"Where a testator bequeathed a legacy of $1500 to one of his executors, in trust to pay sixty dollars annually to his married daughter for her sole and separate use, “ and in ease my said daughter should decease before the money given in trust aforesaid shall have been by her received, then I give and bequeath the same or'such part thereof as may be remaining, to the heirs of my said daughter,” and the trustee paid to the legatee sixty dollars annually for the period of twenty-five years: Held,</p> <p>1. That such payments did not exhaust the fund.</p> <p>2. That the trustee had no beneficial interest in the legacy.</p> <p>3. That it was the duty of the trustee to invest the fund safely so as to make it productive, and negleoting to do so, he is chargeable with the interest of it.</p>

Err,or, to the Common Pleas of Lancaster county. This was an action of debt on a bond in the name of the Commonwealth for the use of the administrator of John Hart, deceased, against Jacob McAlister and Benjamin Hess, upon the trial of which the following facts appeared: — ■ Elizabeth and Eve Hackman being seised as tenants in common of a tract of land, Elizabeth died intestate in 1846, leaving as heirs her sister Eve and the children of five deceased sisters.

<p>Appeal from the Orphans’ Court of Lancaster county.</p> <p>John N. Lane, of the city of Lancaster, died on the 30th January, 1856, seised of a large amount of real estate, intestate, unmarried and without issue, and leaving neither father nor mother, brothers nor sisters, surviving him, but children of deceased brothers and sisters. And also George W. Webb and Susanna Webb, the children of John S. Webb, deceased, who was the son of Martha C. Webb, deceased, a sister of the intestate.</p> <p>On the petition of James B. Lane, the real estate was valued and appraised, having been divided by the inquest into nineteen purparts. Several of the heirs having accepted purparts at the appraised value, George W. Webb and Susanna Webb, by their guardian, appeared and elected to take purpart No. 10, valued at $375, which was awarded to them by the court. From this decree James B. Lane appealed.</p> <p>The question presented in the case is, whether under the Act of 27th April, 1855, the children of a deceased nephew are entitled to inherit with living nephews and nieces, the share to which their father would have been entitled if living.</p>

<p>Where an instrument of writing is offered in evidence, which in the body of it recites “ as witness my hand,” and is signed by the party sought to be charged and a seal is affixed to his name, it is error for the court to presume as matter of law that there was no evidence of sealing.</p> <p>From the fact of signing the jury may presume the sealing and delivery, although there be no reference to sealing in the body of the writing, if there be a seal affixed to the name. Long v. Eamsey, 1 S. & R. 71.</p> <p>To admit such paper in evidence it is not necessary that the party offering it should first prove that the seal had been affixed before delivery.</p>

<p>The declarations of a person not in possession of the land, nor the owner of it at the time the declarations are made, cannot he received to impeach a title derived from such person, especially if not made in the presence of the party against whom they are offered, or communicated to him afterwards.</p> <p>A person will not be received as a witness to impeach or destroy a title conveyed by his own deed.</p> <p>The declarations of a party while holding the legal title, may he given in evidence against his grantee, but where the vendee has accepted a conveyance without any knowledge of such declarations, it is for the jury to say to what extent he shall he affected by them.</p> <p>If there he any evidence at all of a disputed fact, it must he submitted to the jury; and where such evidence is circumstantial and there are facts on both sides, it is peculiarly the duty of the jury to determine their weight and value.</p>

These were two actions of debt on bond, in the name of the Commonwealth, for the use of John Stub and others, one against the executors of Henry Deck, deceased, and the other against the administrators of George Forrer, deceased. The bond sued upon was dated the 10th day of August, 1838, in the penal sum of $7000, and signed by William Stub, George Forrer, and Henry Deck.

<p>The records of accounts in the state treasurer’s office do not partake of a judicial character; but are mere books of accounts, and as such are open to correction as fully as the private account books of the citizen.</p> <p>A clerk in such office who made an entry of credit for more money than was paid, is a competent witness to prove the error.</p> <p>An entry on the books of the department of money received, is not, as to the person paying, an admission of the receipt of such amount.</p> <p>When the correctness of an entry made by a clerk is in dispute, all other entries in the same books which may throw any light on the matter under investigation may be given in evidence.</p> <p>The declaration of a party made to a third person after he has remitted money, of the kind and amount sent, is inadmissible as part of the res gestee.</p>

<p>Error to the Common Pleas of Blair county.</p> <p>This was an action of assumpsit, brought by Robert Moore, in 1842, against Henry L. Patterson. The plaintiff resided in Huntingdon and the defendant in Hollidaysburg, and had a wharf and warehouse there, and was a common carrier on the Pennsylvania Canal. In the fall of 1841, Stewart & Horrell, warehousemen at Water Street, shipped on canal boats belonging to the defendant 1577 blooms for the plaintiff, Robert Moore, to be delivered in Pittsburgh. Of these blooms, 430 were not delivered to the plaintiff’s consignee at Pittsburgh; and this action was brought to recover the value of them. The plaintiff died pending the action, and his executors were substituted.</p> <p>On the trial in the court below, the plaintiffs proved the shipment of the blooms, to the number of 1577, on the defendant’s boats, and produced the manifests signed by the masters of the boats. They also proved that but 1147 of these blooms were delivered for Moore to the consignee at Pittsburgh. These blooms were made at “Elizabeth Forge,” on Spruce Creek, by Hileman & Hammond, by whom they were sold to Moore, and delivered to Stewart & Horrell at Water Street for him.</p> <p>The defendant resisted a recovery, and showed that after the blooms arrived at his warehouse in Hollidaysburg, Mr. Hammond, of the firm of Hileman & Hammond, came there and stated that there was a mistake in the shipment of those 430 blooms for Moore, and wished to have them shipped to Pittsburgh on account of Hileman & Hammond, and which was acordingly done. That the matter was afterwards arranged by Moore settling with Patterson and paying him the balance of the freight on the 1147 blooms. And that Moore, through his son Joseph Moore, agreed to take from Hileman & Hammond other blooms in place of the 430, and released Patterson from any liability.</p> <p>The defendant gave in evidence the following paper produced on notice by the plaintiffs: — '</p> <p>“ Mr. Robert Moore, 1841,</p> <p>Pittsburgh, February 10th, 1842.</p> <p>To Mechanics’ Line Dr.</p> <p>For freight on 1147 pieces blooms from Hileman & Hammond, weighing 109,865 lbs @ $7.25 2000 . . $398.26</p> <p>Received on the within $75 . . 75.00</p> <p>323.26</p> <p>Received on the within $250 . . 250.00</p> <p>73.26</p> <p>Received, June 14th, 1842, of Robert Moore, seventy-three dollars and twenty-six cents in full.</p> <p>H. L. Patterson.”</p> <p>They then called John T. Horrell, who deposed: “ At one time Joseph Moore, a son of Robert Moore, came to the warehouse to see what blooms were sent to Pittsburgh for his father, is the only knowledge I have of his doing business for his father. I gave him a statement, and he went to Hollidaysburg with it, and returned. I had lived a few years with Mr. Moore. Joseph did not attend to his father’s business then — I did. I did not know any other person he had to attend to business for him, when he got the account of blooms given Joseph. Mr. Moore was not in the iron business at the time.”</p> <p>Cross-examined: “ Could not say what age Joseph was at the time. He must have been seventeen years of age, but I do not recollect anything about his age. When he returned to Water Street he gave me a good deal of insulting language, with regard to a statement Mr. Nelson had given him — that we had made one shipment wrong, as Mr. Nelson told him that we had not shipped them for his father, hut had shipped them for Hileman & Hammond.”</p> <p>Re-examined by plaintiff: “ The only evidence I have of his agency was his coming back and censuring us for the error. I have seen Joseph in his father’s store in Huntingdon.”</p> <p>Lewis Mytinger sworn: “ I was acquainted with Joseph Moore. Suppose he is now approaching twenty-eight or twenty-nine. Have no certainty of his age. Do not know of his attending to business for his father. The old man kept store in Huntingdon — do not know of his keeping store for his father.”</p> <p>They then offered the deposition of William Nelson, to which the plaintiffs objected on the ground of incompetency of witness; he being liable to Patterson, in case of a recovery, for his negligence. The court overruled the objection, and the deposition was read as follows:—</p> <p>“ I was clerk for Henry L. Patterson, the defendant in this case, in his warehouse, in Hollidaysburg, in 1841. Henry L. Patterson carried some blooms from Water Street for Robert Moore. They were in several lots. They were manufactured by Hileman & Hammond, at the forge on Spruce Creek. After carrying some few lots, manifested Hileman & Hammond for R. Moore. These manifests were made by Stewart & Ilorrell, at Water Street. There was one certain lot of something, over 400 pieces, came to Hollidaysburg, to Mr. Patterson’s warehouse, manifested as above stated.' After they were put out of the boat, Mr. Hammond, of the firm of Hileman & Hammond, came to see about those blooms, and stated that there was a mistake in the shipment of that lot. That they were not intended for R. Moore at all; but they had a lot at Water Street for R. Moore; and those that had come there, should be sent to Pittsburgh, as their own; that is, Hileman & Hammond, and Mr. Moore should take this lot at Water Street; and that lot of blooms was sent to Pittsburgh, for Hileman & Hammond, according to Mr. Hammond’s direction.</p> <p>“ After some time R. Moore’s son, who was attending to his business, called at the warehouse of II. L. Patterson, to see about their bloom account, having a statement with him from Water Street. We went to compare them, to see how the number of pieces agreed. When we came to this lot of 400 and some pieces, I then explained to him how it came. He likewise got a statement of the matter. This Mr. Hammond happened to be in town the same day; Mr. Hammond and Mr. Moore got together, and came into the office. They then got to talking about this lot of blooms. Mr. Hammond told him the same thing he had told me, as I have stated before. He told Mr. Moore that that lot of blooms, laying on the lower end of the wharf at Water Street, was his father’s (R. Moore’s) blooms, and he mentioned the number of tons; but I do' not recollect; it was either 10 or 20, a considerable larger lot than this that went to Pittsburgh, which Mr. Hammond said would be the amount of blooms due them at that time. Mr. Moore replied, Very well; we will take these blooms, and send them to the east, instead of the west. Mr. Moore said he was satisfied, as there was more in this lot than that went to Pittsburgh. They parted with this understanding, that this lot of blooms, which was at Water Street, should be taken in place of that sent to Pittsburgh. I forgot to lift the statement I gave Mr. Moore, previous to this arrangement. I had a full understanding from them, that this was satisfactory to the parties. In my first conversation with Mr. Moore, I thought there might be some difficulty; but after the parties (Hammond and Moore) had met and talked the matter over, I was satisfied that all was over. I was satisfied that all was perfectly arranged.”</p>

<p>Error, to the Common Pleas of Blair county.</p> <p>The facts of this case are fully stated in the opinion of Mr. Justice Knox.</p>

Bell, Johnston, Jack & Co., brought four actions of debt, to April Term, 1856, against John W. Duncan, to recover the amount of two promissory notes on which the defendant was the endorser, and of two drafts upon one of which he was drawer and upon the other endorser, amounting in the whole to about $8000. Statements, together with copies of the notes and bills, were filed with the prseeipes.

<p>Error to the Common Pleas of Bedford county.</p> <p>This was a scire facias to x-evive a judgment in favour of Job Mann, administrator of the estate of Joseph S. Morrison, against Nicholas Crysher and Michael Thomas. The defendants pleaded usury, payment with leave, &c., and Michael Thomas filed a specification of special matter of defence, in which he alleged that he was the surety of Crysher in the judgment, and that the plaintiff had a sufficient lien against Orysher’s real estate, but suffered it to expire, and that such real estate had been afterwards sold, and brought a sum sufficient to have paid the judgment, if the lien had been preserved.</p> <p>.Crysher confessed judgment on the 2d September’, 1856, and on tbe same day a jury was sworn as to Thomas. On the trial the defendant called Daniel May, and offered to prove that Mr. Barclay was the counsel and agent of J. S. Morrison, during the lifetime of the latter, who resided in the state of Missouri, and that whilst he resided there, Thomas, one of the defendants, gave notice to Barclay to push the judgment or he would no longer stand for the money. That Thomas was the security of Crysher, and that at the time the notice was given, the principal had property out of which the debt could have, been levied and the money made. This evidence was objected to, but the court allowed the evidence to be given, except as to the notice to Barclay. The court were of opinion that the notice should have been given to the principal.</p> <p>The defendant tendered a bill of exceptions to the rejection of such testimony, and the same was sealed. There being no other testimony offered, the court directed the jury to find for the plaintiff.</p> <p>They accordingly rendered a verdict for $492.39, upon which judgment was entered.</p> <p>The defendant took a writ of error, and specified that the court erred in rejecting the testimony as to the notice to Barclay, and in directing a verdict for the plaintiff.</p>

On the 15th January, 1857, Samuel Hatfield, the plaintiff, caused a summons in assumpsit to be issued against M. A. Swiler, the defendant, and which summons was made returnable on the first day of the succeeding term, being the 19th day of January. It was served personally on the defendant before the return day. The defendant caused an appearance de bene esse to be entered by attorney, who, on the 25th January, 1857, moved to set aside the summons and the service.

<p>Appeal from the Common Pleas of Cumberland county.</p> <p>This was an appeal by John Browett, administrator of George W. Singizer, deceased, from the decree of the Court of Common Pleas, distributing the assets of George Keeseman, in the hands of Richard Anderson, his assignee for the benefit of creditors.</p> <p>George W. Singizer and George Keeseman were equal partners in trade. In 3 853 Singizer died; after which Keeseman continued to collect the firm assets, and out of them to pay the firm debts until 1854, when he failed and made an assignment to Richard Anderson for the benefit of his creditors. At this period there were still debts of the firm unpaid, and some assets of the firm uncollected. John Brandt, administrator of George W. Singizer after the failure of Keeseman, received assets of the firm to the amount of $285.96, and was compelled to pay out of the assets of his intestate the balance of the debts of the firm, amounting to $995.81, making a balance of the debts of the firm overpaid by him of $709.85.</p> <p>Richard Anderson subsequently settled an account of his trust, in which he charged himself with the proceeds of the separate property of Keeseman to the amount of $1583.69, and prayed credit for expenses, &c., amounting to $242; leaving a balance for distribution among his creditors of $1341.68. Upon the petition of the assignee this account was referred to an auditor to make distribution of the said balance among the creditors entitled to the same.</p> <p>John Brandt, the administrator of George W. Singizer, claimed to receive out of this balance the one-half of the debts of the firm overpaid by him out of the assets of his intestate, to wit, $354.92.</p> <p>This claim was disallowed, and the assets in the hands of the assignee were distributed to the individual creditors of Keeseman.</p> <p>From this decree Brandt appealed, and assigned for error, that the court erred in rejecting his claim as administrator of Singizer.</p>