Volume 29 — Pennsylvania State Reports

<p>Appears from the Common Pleas of YotTc county.</p> <p>On the 1st day of October, 1855, Emanuel Lomman and George-"VV. Machlin entered into articles of copartnership in the mercantile business, having equal interests. On the 23d July, 1856, Rex, Silvis & Co. issued an execution against Lomman for an individual debt of $3220.75, with interest from 1st April, 1856; and, on the same day, by virtue thereof, he levied the interest of Emanuel Lomman in the partnership. On the 26th July, Henry L. King issued an execution against George W. Machlin, the other partner; on the 28th of the same month, Machlin’s interest in the partnership concern was levied under this fieri facias. An execution of Mary Dare against Machlin was issued and levied at the same time as that of King. On the same day that these last two executions issued, but at a subsequent hour, Jacob Coover caused an execution to be issued against Machlin on a judgment confessed that day for $2948.85. On the same day an execution on a judgment, in favour of Jacob Coover against the firm for $2000, was issued and placed in the sheriff’s hands simultaneously, with the one in his favour against Machlin. Under this writ, the sheriff, on the 28th July, 1856, levied on the personal property of the firm. On that same day the sheriff advertised the property for sale on the 5th August, on the writ against the firm, and the interests of the respective partners on the writs against them individually. On the 30th of July, 1856, Dennis Cannon, Jacob Mumma, and Eithian, Jones & Co. respectively obtained judgments, and issued executions against the firm of Lomman & Machlin in the order of time in which the parties are stated above. These executions were also levied on the partnership property.</p> <p>The sale did not take place on the 5th of August as advertised by the sheriff; and, on the 11th of that month, the counsel of the respective plaintiffs in the executions entered into the following agreement:—</p> <p>“ Whereas, there are doubts as to the proper manner of executing the above executions; and, whereas, the largest amount can be realized by selling said property clear of doubt in regard to the title bought by the purchaser: — Now it is agreed by and between the several plaintiffs and defendants in said executions, that, if the sheriff shall at one sale sell all the interests of the defendants in the same, both their interests and the joint partnership interest, no objection shall be made to a sale thus'made, and that the right of no plaintiff shall be affected by such sale; and it is further agreed that the money made on such sale shall be paid into court, and shall be distributed in the same manner as if the sale had been made according to law (if such sale be not made according to law), the rights of the respective parties remaining unaffected by the manner of sale, and the sheriff’s return.”</p> <p>On the 13th of August, 1856, Stevens, Hollinsbead & Co. issued a fi.fa. against the firm for $522.93, and one against Lomman individually for $1088.32, with a credit endorsed of $700. The property was sold by the sheriff on the 18th August, and returned on each execution that he had sold the personal property levied on that and the other writs respectively — designating them by their numbers and terms. Under the agreement, the net proceeds, amounting to $4423.30, were paid into court. And the court appointed John Gibson, Esq., an auditor to make distribution, who reported the following:—</p> <p>Balance for distribution, deducting expenses of auditor, ........ $4370 30</p> <p>To Jacob Coover, Sr.,</p> <p>On fi. fa. to August Term, 1856, are awarded— debt and interest, ...... 2008 00,</p> <p>To Dennis Cannon, On fi. fa., No. 39, August Term, 1856, are</p> <p>awarded — debt and interest, 352 06</p> <p>To Jacob Mumma,</p> <p>On fi. fa., No. 40, August Term, 1856, are awarded — debt and interest, 903 60</p> <p>To Fithian, Jones & Co.,</p> <p>On fi. fa., No. 41,'August Term, 1856, is awarded the balance of this fund, . . . . 1106 64</p> <p>$4370 30</p> <p>Exceptions were filed to this report, but the court below, after argument (Fisher, P. J.), delivered the following opinion, confirmed the report, and decreed distribution accordingly.</p> <p>“It is a well settled principle of the law of partnership that the joint effects belong to the firm. The corpus of the partnership property is joint, and the individual interest is that which remains after satisfying all the joint debts. It therefore follows that a sale of the interest of one partner, either by transfer or execution, passes only the separate interest of that partner, subject to the debts of the firm. The reason that it is so is not in consequence of any right inherent in the creditors, or any equity in them that demands preference, but because it is a part of the contract between the partners. It is one of the incidents of the relation existing between them, established for the purpose of preventing the joint capital from being withdrawn without the consent of all the partners. And so exclusively is that equity in the partners and not in the creditors, that one partner can sell to the other, so as to make his share separate property, Ex parte Peake, 1 Maddock Ch. Rep. 197; and although the reverse was held in Anderson v. Maltby, 4 Brown's C. C. 423, all subsequent cases reject its authority and assert that it was decided on the ground that the arrangement between the partners was fraudulent. But where the transaction is fair and honest, and is an actual transfer of the effects, its validity is not now a controverted question: Ex parte Raffin, 6 Ves. Jr. 191; Ex parte Williams, 11 Ves. Jr. 3. Where there is a disposition of the interest of all the separate partners, whether by sale, voluntary assignment, or execution, the equity which requires that the joint debts should be paid out of the joint effects is destroyed; and the joint creditors can claim no preference for the debts, but must rely upon the individual responsibility of each of the partners: Doner v. Stouffer, 1 Penn. Rep. 205; Baker’s Appeal, 9 Harris 16.</p> <p>“ These principles being established, it follows that in every partnership there is first to be considered their joint interest as a firm; and, secondly, the interest of each partner as an individual.</p> <p>“ In this case it is contended that as the individual interest of Lomman was first levied upon, and subsequently that of Machlin, that there was nothing left to levy upon by the third execution, and this would be so if the sale had been effected, and the property changed before the third execution was issued, for then we would have a case similar to those of Doner v. Stouffer, Baker’s Appeal, and to Kelley’s Appeal, 4 Harris 62: for in each of those cases the partnership creditors had no execution, and the funds sought to be charged had passed from the hands of the original partners who contracted the debts. But this is not so in the case we are considering; for after the writs of execution had been issued against the individual members of the firm, an execution was issued against the firm itself; and from that moment the execution against Lomman bound his individual interest subject to the equity of his partner; that against Machlin his individual interest subject to the lien on the execution of the partnership creditor; and that against the firm the corpus or the partnership effects as such; not for the benefit of the creditors, but to effectuate the equity which is essential to the partnership relation. I admit, if the first two executions only existed, that by sales upon them the whole title would pass; but before that was effected, the third execution came in, and attached itself to the joint interest so firmly that the sale of both the individual interests could not free them from the lien thus created, unless the partnership creditor could claim the money in ¡reference second execution-creditor. If he could not, then the individual creditors could defeat the equity of the separate partners, and substitute the fund pledged at the commencement of the partnership to pay partnership debts into a fund to pay separate debts. Nor does it appear to me to be an answer to this objection, to say if there were only executions against individual partners, the firm debts would get nothing; for where the firm debts have no lien it cannot be otherwise, as we have already shown. But where the lien for partnership debts attached previously to the change of title, through that lien the right of the partnership to have the firm debts first paid is preserved; or, as has been said, ‘through their equity is the payment of the firm debts worked out.’ But to this it will doubtless be objected that the lien of the individual creditors attached first, and that the first fi. fa. created a lien on all Lomman’s interest, subject to the equity of his partners; that the second created a lien on all Machlin’s equity, together with his remaining interest; and that nothing remained to levy upon for the partnership creditor.</p> <p>“ But it must be remembered that a levy does not change the title, nor vest the property in the first execution-creditor. It is true goods are bound from the delivery of the fi. fa. to the sheriff, yet the property of the defendant in them is not altered by the delivery of the writ, until execution and sale by the sheriff. Sewell on Sheriff 259; Watson on Sheriff 175; Duncan v. McComber, 10 Watts 251. And in Lytle v. McHaffey, Mr. Justice Kennedy remarked, “ it has never been said, much less adjudged, that the officer, the creditor, or anybody else, becomes vested by means of the seizure aione with the absolute property in the goods:” 8 Watts 215. The title then not being changed, the third execution having the superior lien was entitled to be first paid, and it was the duty of the sheriff to have sold on that first. If this be so, all the proceeds of the sale being required to pay the firm debts, nothing remains to be appropriated to the two previous executions in favour of the individual creditors, nor anything to sell on their executions; and although in general it is the duty of the sheriff to sell on the first execution, yet where he has an execution that binds the superior interest, and to which all other interests are subordinate, he ought to sell upon it, because he thus sells the whole title; and in cases of partnership, in this way only can the equities of the several members of the firm be preserved.</p> <p>“ The whole interest being thus disposed of on the superior lien, the firm debts should be first paid, and the surplus, if any, would then go to satisfy the individual creditors, according to the proportionate interest of their several debtors, and it seems to me that no other way could be adopted; for, if a sale was made on the fi. fa. against Lomman, his interest would be sold subject to one partner’s equity and the lien of the execution of the firm debt, and the other interest would be sold subject to the firm execution, and that to avoid this confusion and uncertainty as to what was selling, the proper way would he at once to sell on the execution against the firm the whole partnership property, and then distribute the proceeds according to the respective rights of the claimants. The policy of the law certainly is that titles procured through sheriffs’ sales should be free from doubt and uncertainty, that every purchaser should know, if possible, what he is buying, and that everything sold at sheriff’s sale should be so sold, that it would bring a full price; and in no other way could these objects be effected in cases like the present than by selling the whole interest of the joint firm at one operation. In Cooper’s Appeal, where executions were issued first against separate partners and afterwards against the firm, the sheriff sold the whole stock, and the proceeds were finally distributed in the manner we have indicated they should here be. In that case Mr. Justice Lowrie remarked ‘a sale so made would be irregular if it was not a necessary result of the circumstances,’ for the sheriff ‘ to execute his writs so as to join distinct parties and interests in the question of distribution.’ But that learned jurist certainly saw that it must be ‘the necessary result of the circumstances’ of all such cases that a sale must be so made, and that justice could be done in no other way, and only refrained from saying so, as the case did not require him to do so, because the execution of the firm creditor, though last in order of time, was allowed a preference in the court below without objection.</p> <p>“ Had the sheriff sold the property as a whole without the agreement of the parties, then Cooper’s Appeal and Kelly’s Appeal would have been applicable, and the money would have been distributed according to the equities of the different interests concerned. But as the plaintiffs in the several executions in this case have agreed that the rights of the respective claimants as they were at the time of sale, should not be affected by the manner of making the sale, but that the proceeds should be treated in the distribution, as if it had been properly conducted, it became necessary to consider the manner in which the sale ought to have been made, and I have come to the conclusion that independent of the agreement of the parties, it was rightly done. I therefore affirm the report of the auditor, and direct that the money in court be paid out according to the distribution reported by him.”</p> <p>From this decree Jacob Coover, Rex, Silvis & Co., Henry L. King, and Mary Dare, respectively appealed.</p>

<p>No agreement between supervisors and owners of land through, which a public road passes can give validity to a change of the route of such road differing from that reported by the viewers.</p> <p>Where a road has been opened, but not of the legal width, nor upon the ground designated by the viewers, subsequent supervisors, in widening the road to its legal width, must be governed by the road as opened, and its breadth must be regulated from the centre of the beaten track as used.</p> <p>The authority under the order to open a road is exhausted by the action of those to whom it is directed. Another supervisor has no power to relocate the road for the purpose of placing it upon what he supposes to be its recorded site.</p>

At January sessions, 1853, a petition was presented for the appointment of viewers to vacate and supply a' certain part of a road in Lower Windsor township. The viewers were appointed, and afterwards made a report in accordance with the prayer of the petition. Exceptions were filed to this report, and on the 31st day of January, 1864, it was set aside, other viewers appointed, and an alias view directed.

<p>When several persons are authorized to do an act of a public nature, they must all deliberate, though a majority may decide.</p> <p>A road view, under the Act of 1836, will be good if five of the six viewers appointed view the ground, and four of the actual viewers concur in the report; and it is immaterial whether the sixth viewer was absent, or, being present, refused to join in the report.</p> <p>Eoad viewers are required to report to the next term after the order, and until that time their power to do so ia not exhausted, and they may in the mean time meet as often as is necessary for the purpose.</p> <p>It is immaterial that a dissenting viewer was not present at the first meeting, if he afterwards attended and took part in the proceedings.</p> <p>A report, vacating parts of two roads, is not invalid if they appear to have been connected in the petition asking for the appointment of the viewers or reviewers.</p> <p>Where viewers and reviewers differ in their reports, the court may adopt either.</p>

This was an action on the case brought by Alexander Patterson against William Okeson, for obstructing an alleged right of way. The plaintiff and defendant respectively owned tracts of land adjoining each other. The plaintiff purchased the land owned by him from the heirs of Andrew Morrow in 1828, and went into possession at that time by his tenant. The conveyance to him was not made until in 1830. The defendant became owner of the land held by him, in 1848.

This was an action on the case in assumpsit, brought by Eegely & Brother against Charles B. Weaver, to recover the price of a large quantity of anthracite coal sold and delivered to the defendants by the ton. The only matter in dispute between the parties was, whether the ton consisted of 2000 pounds, or 2240 pounds avoirdupois. The plaintiffs contended for the former, the defendant for the latter.

On the 18th July, 1848, the plaintiff effected an insurance, in the company of the defendants, on a frame house, situate in the borough of Lewistown, for the sum of $1000, being two-thirds of the estimated value, for five years. The resident agent of the company went upon the premises and filled up the description and application, and upon that the policy was issued.

This action was originally brought by Joseph Brinthall before a justice of the peace against the county, and removed into the Common Pleas by appeal. The parties agreed upon the following case stated:— The plaintiff claims the amount of the above judgment for fees, which he alleges he is entitled to receive for services rendered while he was constable in the city of Lancaster, and-which have never been paid to him.

This was an action of trespass vi et armis, brought by Frederick Schumacher against Elias Eby, Esq., late sheriff of Lancaster county. John Hiett, who resided at McConnellsville in the state of Ohio, and was engaged in the tobacco trade, on the 23d of August,, 1852, sold to the plaintiff, to whom he was indebted, a quantity of tobacco.

This was an action of trespass vi et amis brought by Adam Mock and Catharine his wife, for the use of said Catharine against John Manderbach. Mock had been in the livery business in the city of Reading, but in December, 1854, he sold out his stock for the sum of $2300, and applied the same to the payment of a part of his creditors. Mock still owed a considerable sum, was without property, and had a wife and eight children.

John Forney died intestate in 1835, leaving a widow and eight children, six of whom were in their minority. The real estate left by the intestate, under a writ of partition and valuation in the Orphans’ Court, was appraised in seven purparts, in 1838.

<p>Where there is no evidence of fraud or mistake, it is error in the court to submit to the jury to find, upon parol evidence, whether thwwritten instrument sued upon truly expresses the contract between the parties.</p> <p>The endorsement by the obligee upon a single bill, that the same shall be of no effect after his decease, does not amount to a cancellation or release of the debt, if made without consideration and the single bill be retained.</p> <p>To make a parol release of a written obligation effective, it must be founded upon a sufficient consideration, otherwise it will be merely an executory gift subject to the control of the donor, and which cannot be enforced against him or his personal representative.</p> <p>But the delivery of a bond to the obligor, or a third person, with intention and direction that it be cancelled, will extinguish the debt.</p> <p>The subsequent presentation of the bond, and the bringing of an action upon it against the intention and direction of the obligee, would be such a fraud upon the obligor, as would enable him to successfully resist a recovery upon it.</p> <p>Where there is evidence given that the obligee delivered the bond to a third person, with directions to destroy it, his declarations to other persons at different times that he did not intend to demand or claim it from the obligor, may be received as corroborative of the evidence of the intention and direction to destroy it.</p>

This was an action on the case brought on the 13th August, 1856, by John Bowser, against Samuel and David Whetstone, to recover damages for obstructing a watercourse, and diverting the water from the plaintiff’s mill. The farms of the Whetstones are situated on Cove Creek, and about two miles from the plaintiff’s mill.

<p>A lessee of laud encumbered with a judgment prior to the lease, under which the premises are levied and sold, is entitled to the waygoing crop sown by him prior to the levy and condemnation, in preference to the sheriff’s vendee. Sallada v. James, 6 Barr 144, and Groff v. Levan, 4 Harris 179, overruled.</p> <p>By the provisions of the Execution Act of lGth June, 1836, sections 105, 111, and 119, a lessee under a lease, of later date than a lien, after a sheriff’s sale under such lien, becomes a tenant at will of the sheriff’s vendee.</p> <p>If the tenant in such case had sown his crop before he was notified of the purchaser’s intention to determine the tenancy, he will be entitled to take it away.</p> <p>Whore a person is in possession of land, under a title that may be determined by an uncertain event, not within his control, it is essential to the interests of agriculture that such a determination of his lease shall not prevent him from reaping what he has sown.</p> <p>• Under an execution law, a lessee in possession, at the time of a sheriff’s sale of the premises, is to be treated either as a tenant for years or at will: if for years, he is entitled to the waygoing crop under the general custom or common law of Pennsylvania: if at will, he has the right to the larger emblements or waygoing crop that belongs by the common law to that species of tenancy. ;</p>

<p>Error to the Common Pleas of JPranMin county.</p> <p>This was an action of dower unde nihil habet by Nancy Pritts against Atchison Ritchey, in which the jury found the following special verdict; upon which they pray the court to enter judgment for the plaintiff, if in law she' is entitled to recover, in whole or in part, otherwise for the defendant:—</p> <p>They find that John McKnight and wife, of Philadelphia, sold, by written articles of agreement, dated 30th of May, 1845, to Joseph Pritts, a tract of land situated in Franklin county, containing 212 acres, for the consideration of $10,625.81, Avhich articles are hereto attached, and that the said Joseph Pritts went into possession of said land in pursuance of said contract in 1845, and continued therein until his death. That he paid on the said contract, to the said McKnight, the sum of $600, 30-th of May, 1845, and $1000 on the 2d of April, 1846. That on the 1st of January, 1847, Joseph Pritts transferred all his right in the said article, to Atchison Ritchey, and directing that the deed of conveyance he made by McKnight to said. Ritchey, which said transfer is endorsed on the articles of agreement. That on the 10th of January, 1847, these last parties, namely, Pritts and Ritchey, entered into articles of agreement, whereby the said Pritts sold the land to Ritchey, on certain conditions and terms therein expressed. That at the time of the sale by Pritts to Ritchey, the said Pritts was insolvent, and so continued until his death, and that a fi. fa. was in the hands of the sheriff of Franklin county, on a judgment, J. S. Black v. said Pritts, No. 29, August 1846. That this judgment was paid out of funds received by Pritts from Ritchey. That a deed was made in pursuance of the agreement between Pritts and Ritchey, by McKnight and wife, to the latter, on the 9th of January, 1847, for the consideration of $10,625.31. That Mrs. Pritts declared whilst on the property, after her husband’s death, that she had no interest in and nothing to do /with said farm. That plaintiff was legally intermarried with Joseph Pritts before the making of these contracts of sale, and so continued until his death.</p> <p>The court below (Kimmbll, P. J.) entered judgment on the special verdict for the defendant.</p> <p>This was the error assigned.</p> <p>The case was argued at May Term, 1856, and ordered for re-argument at May Term, 1857.</p>

<p>Error to the Common Pleas of Bedford county.</p> <p>This action was brought to recover a balance due to the plaintiffs for work done as contractors on the railroad of the defendants. On the 4th November, 1853, John McGovern entered into a contract with the Huntingdon and Broad Top Mountain Railroad Company, to construct section No. 31 of the company’s road, stipulating to do the same in a substantial and workmanlike manner at specified rates for each description of work; and to complete it by the 1st of September, 1854. A monthly estimate of the work and materials furnished was to be made by the engineer of the company, on or about the 15th day of each month, during the progress of the work, and the amount thereof was to be paid to the contractor, deducting therefrom 10 per centum, as security for the faithful performance of the work by the contractor. When all the work should have been completed, a final estimate was to be made and the amount paid to the contractor. For the retained per centage he was to receive one-half in the bonds and the other half in the stock of the company, as payment. This article of agreement also contained a clause that the decision of the engineer shall be final and conclusive in any dispute which may arise between the parties.”</p> <p>On the 6th January, 1854, McGovern, without having commenced the work, assigned the contract to John Hohman and Josiah M. Christy. They commenced and did about half the work embraced in the section, amounting, according to the estimate of the engineer, to $14,794.71.</p> <p>The plaintiffs having received notice from the company to limit their work to $500 per month upon their section, and the company failing to pay the amount of the monthly estimates at the times stipulated in the contract, the plaintiffs abandoned the work. It was subsequently relet by the company to other contractors at higher rates, and the completion cost the company $2470 more than if it had been finished under the agreement with McGovern.</p> <p>The amount of the estimates of the work done under the McGovern contract had been all paid, except the retained per cent-age, which the company alleged had been forfeited by a failure to complete the work according to the contract. To recover this, Hohman and Christy, to September Term, 1855, instituted an action of assumpsit, to which the defendants appeared, a declaration was filed, and issue was joined.</p> <p>The plaintiffs then applied to the court, and obtained leave to amend the action by adding the name of John McGovern for the use of Hohman and Christy, and to file a new declaration. Under this order a declaration in covenant on the contract between McGovern and the company was filed, averring performance on the part of the plaintiffs of all and singular the covenants and agreements in said contract on their part to be done and performed, and assigning for breach that the defendants did not perform that part of the agreement requiring them to pay the plaintiffs the ten per cent, retained until the work should be completed; although the plaintiffs had completed the work to the satisfaction of the engineer, according to the terms of the agreement. To this declaration the defendants pleaded covenants performed absque hoe, &c.</p> <p>On the trial of the cause in the court below, the plaintiffs proposed to prove that the company failed to pay the contractors according to their covenants, by reason whereof the contractors were unable to continue the work. This was objected to by the defendants, and admitted by the court, and exception sealed at the instance of defendants’ counsel.</p> <p>The court below (Kimmell, P. J.) submitted to the jury to find whether the neglect and omission of the defendants to pay for the work according to the contract prevented the plaintiffs from completing the work, and caused them to abandon it; and instructed them if they so found the plaintiffs would be entitled to recover the retained per centage. If they abandoned it, or omitted to complete it from any other cause, they could not recover.</p> <p>The jury found for the plaintiffs $1617.42. A motion for a new trial was refused, and judgment entered upon the verdict.</p> <p>The defendants removed the cause to this court, and assigned for error here the admission in evidence of the failure of the company to pay according to the contract, and the instructions of the court to the jury.</p>

<p>A contract under seal may be so changed by the parties as to reduce the •whole to parol: but every modification of a written, agreement will not have this effect; and it will require clear and explicit proof to so change the character of the contract.</p> <p>A written contract for the grading and masonry of a railroad between designated termini, is not so altered and modified by a change in the route between §ueh termini, as to enable the contractor to recover for the work done, upon a quantum meruit, irrespective of the prices designated in the agreement.</p> <p>Where the monthly estimates of the work done were made out according to the prices designated in the contract, and received and receipted for as under the contract, thus treating the contract as subsisting, the parties thereby waived the consequences of previous changes, and the contractors could not afterwards avail themselves of such changes to recover upon a quantum meruit for work done in pursuance of the written agreement.</p> <p>Where there have been considerable changes and modifications without any intention to abandon or rescind the written agreement, assumpsit may be sustained for the work performed, making the sealed agreement the basis of compensation.</p>

<p>The rule of law which forbids parol evidence to be received to contradict or vary a written agreement, has reference exclusively to the terms in whieh the writing is couched.</p> <p>But evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in.which the contract is conceived.</p> <p>Our courts hold to the rule that plain and unequivocal terms shall not be altered by parol, but that such explanations of the subjectrmatter may be proved as shall give those terms the intended effect.</p> <p>Where a party sold his interest in a mercantile firm to another by a written article of agreement at a stipulated price, the purchaser agreeing to pay the seller's share of the demands against the firm: in an action on the agreement by the seller for the purchase-money, parol evidence is admissible for the defendant, that before the contract was signed, a schedule of the debts of the firm was presented to him, with the knowledge and privity of the plaintiff, and that a large amount of debts owing by the firm were omitted in such schedule.</p>

This was an action on the case brought by John Whaler against Daniel V. Ahl and others, to recover damages for an alleged obstruction of plaintiff’s right to the use of certain water on the stream called the “Big Spring.” This stream has its source in a large limestone spring, and running about three miles discharges itself into Canodoguinnett Creek.

<p>A person indicted, arraigned, and convicted at a regular term of a Court of Oyer and Terminer, may be afterwards legally sentenced at an adjourned term of such court.</p> <p>The testimony given by the prisoner under oath before a coroner’s inquest, previous to him being charged or suspected of the murder of the individual upon whose body the inquest was sitting, may afterwards be given in evidence against him, on his trial for the murder of such person.</p> <p>Where the court suggest to the jury a fact of which there is no evidence, the error is cured if, in immediate connection with such suggestion, the court tell the jury that the absence of evidence of such fact is the strongest circumstance in favour of the defendant.</p> <p>Possession of the fruits of crime by the prisoner is of.great weight in establishing the nroof of murder, where that crime has been accompanied with robbery.</p>

<p>An executor to whom a discretionary power is given to sell lands, which are devised to another, is not liable for the taxes assessed upon the land prior to the sale.</p> <p>Nor is he liable to his vendee where the land was sold for such taxes, upon a warranty in his deed against encumbrances done or suffered by himself.</p> <p>Where an adjoining owner clears over three or four acres upon a tract of land and cultivates it, with a full knowledge of the division lines between the two tracts, and does no act to indicate his intention to limit his claim to a part of the tract, to the exclusion of the residue, the whole tract thus cleared over upon becomes seated, and is not liable to be sold as unseated land.</p>

<p>Defects in mesne process, the object of which is merely to bring an individual into court, are always waived by the appearance of the party.</p> <p>An award of the premises in partition is not vitiated for want of a rule to show cause, returnable on the day of the hearing, if, in point of fact, all persons interested are before the court, and fully heard, and he elects to take who is entitled under the Act of Assembly to priority of choice.</p> <p>The 10th section of the Act of 22d April, 1856, is not applicable to any partition where the valuation was made prior to the first day of October, 1856.</p> <p>Nothing short of the most indubitable phraseology will induce this court to hold that the legislature intended that their acts should have any other than a prospective operation.</p> <p>Where they fix a future day for an act to take effect, they stamp its prospective character upon its face.</p>

This was an action of ejectment brought by William A. Petriken and Margaret his wife, and Hugh Montgomery, against Robert Montgomery, Peter Sheddy, and Moses Covert, to recover 696 acres of land in Clinton township.

This was an application on behalf of William Rawle, Esquire, and the heirs of Charles Kuhn, deceased, of Philadelphia, for a writ of mandamus against Dudley Vaughan and Henry Rauch, supervisors of Colley township, Sullivan county. The relators were owners of a large body of unseated lands in that township, upon which road taxes were assessed.

<p>Error to the Common Pleas of Union county.</p> <p>This was a feigned issue directed by the court, wherein Adam Schrack and others were plaintiffs, and John Roland defendant.</p> <p>On the 11th day of April, 1856, Luther Rank and Charles Roland entered into partnership in a store, at White Deer Mills, in Union county. The store had previously been carried on by Rank and William A. Magee. Under the agreement by which Magee retired, and Roland came into the firm, Rank & Roland agreed to pay the debts owing by Rank & Magee. Charles Roland procured from his father, John Roland, $1000, a few days after the partnership was formed, and gave his note, dated 1st April, 1856, for the amount. John Roland also became surety for Rank & Roland to the amount pf $700. The money thus received from John Roland, and borrowed by the firm, went into the operations of the firm, and was principally appropriated to pay debts owing by Rank & Magee. On the 15th August, 1856, Rank & Roland, being embarrassed, confessed a judgment to John Roland for $1722.50. On this judgment and others executions were issued, and the property of the firm levied and sold, and the proceeds were in court for distribution.</p> <p>A petition was presented to the court, signed by the attorneys of the plaintiffs, creditors of Rank & Roland, alleging that the judgment in favour of John Roland was fraudulent and void, and for the purpose of hindering and delaying the creditors of Rank & Roland. An affidavit was made by William A. Magee, who was not a party to the issue, nor an execution-creditor, but interested in having the money appropriated to the debts of Rank & Magee, assumed by Rank & Roland. Thereupon the court directed this issue. On the trial, in the court below, the defendants’ counsel moved to strike off the issue as having been improvidently awarded, upon the petition of the counsel instead of the parties, and sworn to by a person not a party to the petition or the issue. This motion was refused by the court.</p> <p>The plaintiffs alleged that the $1000 which Roland received from his father, was as a gift or advancement, and proved the declarations of John Roland, to the effect that he had given his son $1000 to commence business in the store.</p> <p>The defendant proved that he had taken a note from his son for the amount at the time he handed him the money, bearing interest, and also produced his book, in which were charged the advancements to his children, and that this sum was not charged against Charles as such.</p> <p>The defendant, among other things, requested the court to charge the jury that the fraud which is declared to be so by the statute is legal and not actual, and under the ruling by the Supreme Court in Levering v. Rittenhouse, 4 Whar. 141, and High’s Appeal, 9 Harris 283, the court is bound to direct the jury, under the evidence developed in this case, that the plaintiff cannot recover.</p> <p>The court below (Wilson, P. J.) charged in part as follows, and answered the foregoing point:—</p> <p>“ The question then is for you, and it is whether, when Charles got the money from his father, it was an irrevocable gift, which is certainly not shown by the note his father took from him at the time. And, 2d, If it was not such irrevocable gift, and no evidence to satisfy you that he changed afterwards to such gift, this would not be an advancement, and John Roland might include it in his judgment without fraud being imputed to him. But if you are satisfied that it was an absolute gift originally, or that he afterwards changed it to an irrevocable gift, the plaintiff would be entitled to your verdict; but if there is not evidence of its being originally or afterwards changed by the parties to such gift, your verdict will be for the defendant.</p> <p>“ Legal fraud is for the court, but not fraud in fact, and the question here presented in this case is, whether the $1000 was an advancement or a loan, which is for the jury under the evidence in the cause, and we therefore refuse to answer the point as a whole, as requested, and refer you to our general charge as to what will constitute an advancement.”</p> <p>The jury found for the plaintiff. Whereupon the defendant sued out this writ, and assigned here for error that the court below erred in refusing to strike off the issue, in admitting evidence of the declarations of defendant to prove an advancement in the absence of the son, and in their charge to the jury, and the answer to the point.</p>

John Bowen brought an action of assumpsit against Jacob B. Masser. On the trial of this cause the plaintiff gave in evidence various indebtedness by the defendant on note, book account, &c., and closed. The defendant then offered in evidence a check drawn by himself in favour of the plaintiff, endorsed by and paid to him for $150. This was offered as evidence of a payment on the indebtedness to the plaintiff.

<p>The refusal of the court to discharge a prisoner on the last day of the second term after his arrest, under the 3d section of the Habeas Corpus Act, is essentially a habeas corpus proceeding, and does not come up with the record on a writ of error taken by the prisoner after conviction and judgment.</p> <p>A prisoner, under that act, can only claim his discharge on the last day of the second term after his arrest, when there has been a competent and regularly constituted court, before which he could have been indicted and tried.</p> <p>The act was designed to prevent wrongful restraints of liberty growing out of the malice and procrastination of the prosecutor, but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.</p> <p>Where the array of grand jurors was quashed at two successive terms after the arrest of the prisoner, for informality in selecting and drawing them,„he was not entitled to be discharged.</p> <p>The statute requiring an addition to be given to jurors, is directory merely, and, to be a mai’k of identity, is properly written as it is commonly known in the community from which the juror is drawn.</p> <p>The addition of “ Mill Boss” to the name of a juror will be presumed to designate his occupation as known and understood in the neighbourhood where he resides.</p> <p>The right of a president judge to exercise his functions within a county, attached by the legislature to his district subsequent to his election, cannot be questioned collaterally.</p> <p>The court will judicially take notice of the legislation by which he claims to exercise his office, so far as to hold him a judge de facto, and as against all but the Commonwealth a judge de jure.</p> <p>The right and powers of a judge de facto, with colour of title, can only be inquired into by quo warranto, at the suit of the Commonwealth. Burnell’s Case, 7 Barr 34.</p>

<p>The record of the acknowledgment of a treasurer’s deed for unseated lands, kept in the Court of Common Pleas, when the deed itself is lost, is evidence of the existence of the deed.</p> <p>After such evidence, together with the treasurer’s sale book corresponding therewith, parol proof of the existence of the deed, its loss and diligent search for it without avail, it was not error to admit in evidence a deed from the alleged purchaser at treasurer’s sale, reciting the treasurer’s deed to him.</p> <p>After a sale of land by the treasurer to a stranger, and the time for redemption has passed, one of two tenants in common may purchase it from the treasurer’s vendee, and such purchase will not enure to the benefit of the other tenant in common.</p> <p>And the same principle applies where the purchase is made by an attorney, and held in trust by him, if he were acting only as the agent of one of the tenants in common in the purchase.</p> <p>A subsequent treasurer’s sale, and a purchase of the land by the heir of one of the original tenants in common, where he purchased with his own funds and for himself, would not enure to the benefit of the other tenant in common whose title had been divested by the previous sale for taxes.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by The Pittsburgh and Connelsville Railroad Company against Clarke & Thaw, to recover the balance due upon a subscription of one hundred shares to the eapital stock of the company. On the 24th March, 1849, an Act</p> <p>of Assembly was approved, authorizing commissioners to open books, receive subscriptions, and organize a company, subject to all the provisions of the general railroad law, approved on the 19th February of the same year, the capital stock to consist of sixteen thousand shares of §50 each. Under this act Clarke & Thaw subscribed the one hundred shares set forth in the declaration, and paid five dollars per share. The company was organized on the 21st August, 1851, and Thomas S. Clarke, one of the defendants, was elected a director, and continued to act in that capacity until the 1st of May, 1854, when he resigned.</p> <p>The defendants pleaded payment, and on the trial in the court below, gave in evidence the following letter, to the admission of which the plaintiffs by their counsel excepted:—</p> <p> “ To the President and Directors of the Pittsburgh and Steuben-ville Railroad. </p> <p>“ I desire to have transferred to me eighty shares of the stock standing in the name of Clarke & Thaw, eighty shares of the stock standing in the name of Henry Graff, eighty shares of the stock standing in the name of William Bingham, eighty-shares of the stock standing in the name of Hays & Black, and do therefore request that authority be given to the secretary to make such transfer.</p> <p>“Edwin M. Stanton.</p> <p>“Pittsburgh, September, 1851.”</p> <p>And that afterwards, on the 25th May, 1852, the eighty share's were transferred, on the transfer book of the company, to Mr. Stanton. The defendants also proved that Stanton was a man of means, and of ability to pay.</p> <p>The plaintiffs then offered to prove that after the date of the foregoing letter, the defendants continued to exercise acts of ownership over the stock up to the time and after the transfer on the books, for the purpose of disproving the existence, or the revocation of the pretended arrangement with Stanton. This offer was rejected, and exception taken by plaintiff.</p> <p>They also offered to prove that the letter was not presented to the board of directors, and when presented to the treasurer, without the knowledge of the board, was withdrawn and concealed. This was also rejected by the court, and a bill sealed at the instance of plaintiff’s counsel.</p> <p>The plaintiff further offered to prove that, after the date of the transfer to Stanton, the defendants suffered themselves to be reported to the mayor of the city of Pittsburgh as holders of one hundred shares of stock, for the purpose of procuring a subscription by the said city of' §250,000 stock in the company. This was also rejected.</p> <p>They again offered to prove, by the minutes of the company in the custody of the secretary, that Clarke, one of the defendants, attended the meetings of the board of directors from 17th September, 1851, till Juno, 1852, and that during that time Stanton was reported as a defaulting stockholder, on his own original subscription, of one hundred shares, and that he refused to pay for the same, and that he was paid for taking the stock, instead of paying for it.</p> <p>The latter part of the offer, that he was paid for taking the stock, was admitted, but the other was overruled, and an exception taken by plaintiff’s counsel.</p> <p>They finally offered lists of stockholders, made and certified respectively, 8th June, 1852, and 27th September, 1852, the first by the president and treasurer, and the latter by the treasurer, with his affidavit thereto, in which the defendants were set down as the owners of one hundred shares, with $500 paid thereon, and that Clarke was one of the directors at the time, and had actual knowledge that they were reported as debtors to the company for the balance due on such stock, to show that the defendants regarded themselves as the owners of the stock, and that the transfer to Stanton was not made bond fide, and that the arrangement for the transfer to him was revoked and abandoned. An objection to its admission was sustained, and the plaintiffs took an exception.</p> <p>The plaintiff’s counsel propounded the following points:—</p> <p>1. That the transfer of stock held by an original subscriber in a railroad company, indebted to said company on such subscription, is invalid, without the consent of the directors as a board, for the purpose of discharging the liability arising from such subscription.</p> <p>2. The act of the treasurer suffering such transfer to be made, is no evidence of the assent of the board of directors, and such assent can only be evinced by some corporate action.</p> <p>3. That no transfer of stock shall have the effect of discharging any liability or penalty incurred by the owner thereof prior to said transfer, and that stock subscribed for and not paid up, although not due or called for, is such a liability as would not be discharged by such a transfer.</p> <p>4. That the letter of E. M. Stanton is an agreement to receive the transfer of the stock within a reasonable time, and that a transfer after the lapse of eight months, without notice to transferree, is not a reasonable time, and he was not bound to accept it without renewed consent.</p> <p>5. That the letter of said Stanton, requesting the transfer of the stock mentioned therein, is not in the nature of an abiding-contract, but the mere expression of a willingness to accept the stock, at that time, and therefore revocable, and that the jury may presume, from the lapse of time, that the said request was revoked.</p> <p>6. That the withholding or suppression by the transferrors of the writing signed by E. M. Stanton, and the retention of said writing in their possession, so that the directors of that period and their successors were not furnished with it as evidence of the liability of Mr. Stanton, had the effect of invalidating said transfer from him, if otherwise formal, and of estopping them from setting up said transfer as a defence.</p> <p>7. That the offer by E. M. Stanton to accept eighty shares from each of four persons (in all 320 shares), was not fulfilled or acceded to by the transfer by three persons, of eighty shares each (in all 240 shares), and therefore not binding on Mr. Stanton, without fresh acceptance; and the omission to transfer all requested invalidates any transfer of a portion.</p> <p>The court below (Hampton, P. J.) summed up the instructions to the jury as follows: — •</p> <p>“ I am not aware that the question now before the court has ever arisen under this Act of Assembly. The case of the West Phil. C. C. v. Innis, 3 Whar. 206, contains a principle which favours the views we entertain in this case. We are not, however, without direct authority on the general question elsewhere. In An. A. on Oor. § 534, the principle is broadly laid down as follows: ‘ When an original subscriber to the stock of an incorporated company, who is bound to pay the instalments on his subscription, from time to time, as they are called in by the company, transfers his stock to another person, such other person is substituted, not only to the rights, but to the obligations of the original subscriber: and he is bound to pay up the instalments called for after the transfer to him. The liability to pay up instalments is shifted from the outgoing to the incoming shareholder. A priority is created between the two by the assignment of the one, and the acceptance of the other; and also between them and the corporation, for it would be absurd to say, upon general reasoning, that if the original subscribers have the power of assigning their shares, they should, after disposing of them, be liable to the burdens which are thrown upon the stock.’ And in support of this doctrine many cases are cited in a note under this section.</p> <p>“We instruct you, therefore, as matter of law, that the company had power to consent to this assignment, so as to release these defendants from the unpaid balance on the eighty shares of stock transferred to Mr. Stanton.</p> <p>“ The amount of this ruling is,—</p> <p>“ 1. The company had power to consent to this transfer, and release the defendants from all liability for the balance remaining unpaid on those eighty shares of stock so assigned.</p> <p>“2. The law presumes that the company did consent to the transfer.</p> <p>“ 3. The law also presumes that Mr. Stanton consented to and accepted the assignment. '</p> <p>“ These three are questions of law for the determination of the court, and we have ruled them all in favour of the defendants.</p> <p>“But one question remains to be disposed of, which is admitted to be the only question of fact for the jury to pass upon, and that is, whether the transfer was bond fide, made in the ordinary course of business. If you should be of opinion that this transfer was so made, then the plaintiffs are not entitled to recover against these defendants any portion of the balance unpaid on the eighty shares assigned to Mr. Stanton. In that event, you will find for the plaintiffs the amount agreed upon by counsel as being yet due on the twenty shares of stock still owned and held by the defendants. But if you find this fact otherwise, you will find for the plaintiffs the amount of their claim. The plaintiffs’ counsel have presented several points, but as the general charge, it is believed, covers all the law of the case, it is deemed unnecessary to answer them in detail.”</p> <p>The jury found for the plaintiffs $723.27, being the balance, with interest, due on the twenty shares not transferred.</p> <p>The plaintiffs sued out this writ, and assigned for error the admission and rejection of the evidence as stated in the bills of exception, and the ruling of the court on the points of law.</p>

<p>It is a principle of equity that the owner of property may follow and reclaim it wherever he can find and identify it, until arrested in the pursuit by the countervailing equity of a bond fide holder for a valuable consideration paid.</p> <p>A person purchasing with notice that the sale is a breach of trust, is particeps criminis, and cannot protect himself against the owner, not being a bond fide purchaser.</p> <p>Constructive notice is such evidence of notice, the presumption of which is so violent that the courts will not allow of it being contradicted.</p> <p>A party receiving from the president of a railroad company, a bond given to the company with an assignment in blank upon it, by such president, which purports to have been done by him as president by order of the board of directors, as collateral security for an antecedent debt due by such president individually, is not such bond fide holder for value, without notice, as can hold the bond against the company.</p>

<p>A transfer of bonds belonging to a railroad company, by the president of the corporation, as collateral security for a pre-existing debt due by himself, no new consideration having passed at the time, is void, although the president was authorized by the board of directors to sell and negotiate the bonds for the company.</p> <p>The onus of proving such new consideration is upon the party claiming to hold the bonds; and it is error to submit the question to the jury where there was no evidence given which would justify them in finding the fact.</p> <p>Where such bonds were pledged as collateral security for money previously deposited with the president as a banker, and no further time was given for the payment of the deposit — the certificates being retained by the depositor, and no change made upon the books of the banker — it was strong evidence that the deposits remained after the pledge of the bonds as before subject to immediate withdrawal.</p> <p>Such facts negatived any inference to be drawn from the pledge of the securities that “ further time’' for the payment of the deposit was given in consideration of such pledge.</p>

<p>Certiorari to Quarter Sessions of Cambria county.</p> <p>This was a proceeding instituted by Thomas H. Porter and Thomas H. Porter, Jr., under the 4th section of the 27th March, 1848, to recover from the Pennsylvania Railroad Company the damages sustained by the construction of their railroad through the lands of the plaintiffs, situate in Washington township, Cambria county.</p> <p>On the 10th June, 1856, Thomas H. Porter presented his petition for and on behalf of himself and his ward, Thomas H. Porter, Jr., in which, after alleging their seisin and the description of the land through which the railroad is made, he sets forth:—</p> <p>“ That the Pennsylvania Railroad Company, heretofore, to wit: Anno Domini 1851, entered in upon the said tract of land, then and aforesaid owned by your petitioner and his ward, and constructed the railroad of the said company, through and over said lands, to the great damage and injury of your petitioner and his said ward. That the said Pennsylvania Railroad Company hath never paid to your petitioner any sum of money whatsoever, for and in satisfaction of the damages by him sustained in the premises ; he, therefore, prays your honours for the appointment of viewers to estimate and determine the damages aforesaid, according to the Acts of Assembly in such cases made and provided, and he will ever pray, &c.”</p> <p>Viewers were appointed on the 12th day of August, 1856.</p> <p>The view was continued by consent of the parties, and on the 12th September, 1856, the court.granted leave to file an amended petition, which, after reciting the former petition, set forth: “ That the viewers appointed by your honours have not yet met to perform their duties; and your petitioner avers that before the time of the presenting of the said petition, your petitioner, after repeated efforts, was unable to agree with the said Pennsylvania Railroad Company respecting the damages justly due and payable to your petitioner in the premises; he therefore, prays your honours to allow this, his petition, to be placed on record, as an amendment of his aforesaid petition, and he will ever pray, &c.”</p> <p>These petitions were respectively sworn to by the petitioner. The view was continued several times by consent, and on the 10th October, 1856, the viewers met upon the ground, and, in the absence of the defendants and their counsel, made the following award:—</p> <p>“ We, the undersigned viewers appointed by the court, as appears by the annexed order of the Court of Common Pleas of Cambria county, having met at the time and place mentioned in the within order of continuance, to wit: at Cresson, on this 10th day of October, A. D. 1850, did proceed to the premises in the said order prescribed, and we do report: That we viewed the premises aforesaid, and do estimate the quantity of land so taken and occupied by the Pennsylvania Railroad Company, and used in the construction of their road over the same, to be one acre and thirteen and four-tenth perches. That the quality of the land so taken and occupied is common mountain slate land, cleared, and at the time of the construction of said railroad, was covered in part by a mill-dam from which a saw mill on the said premises was supplied. That the value,of the land so taken and occupied, is and was at the time of the taking aforesaid, $10 per acre. That the saw-mill aforesaid on the said premises, has been rendered entirely useless and valueless by the destruction of the water power, by means of said railroad. That we did fairly estimate and make allowance for the advantages which have resulted, or which may likely result to the owners of the said premises hereinafter named, in consequence of the opening or making of said road.</p> <p>“ That we did fairly estimate the disadvantages resulting to said owners, from the construction thereof, and having made a fair and just comparison of said advantages and disadvantages, we do determine that the said owners have sustained damages over and above any and all advantages, by reason of the construction of said railroad, to the amount of $2200; and we do find that the said owners are justly entitled to be paid the said sum of $2200, for the damages aforesaid; and we do further determine, that one-half of said sum is payable to Thomas PI. Porter, and the other half thereof is payable to the said Thomas H. Porter, guardian of Thomas H. Porter, for the use of said Thomas II. Porter; they being owners and tenants in common of the said premises.</p> <p>“ In testimony whereof, we have hereunto set our hands and seals, this 10th day of October, A. D. 1856.</p> <p>Signed: John H. Rush, [l. s/</p> <p>, John Ake, [l. s.'</p> <p>John McVicker, [l. s.]”</p> <p>On the 2d December, 1856, the award of the viewers was read and confirmed nisi, and on the 6th of the same month, the counsel of the railroad company filed the following exceptions:—</p> <p>1. The petition does not set forth that the petitioners were unable to agree with the Pennsylvania Railroad Company for the damage done or likely to be done to the property in question.</p> <p>2. The petition does not set forth the absence or legal incapacity of the owners, as a reason why compensation could not be agreed on.</p> <p>3. The damages awarded are excessive.</p> <p>4. The report does not show that there was a hearing of the parties before the viewers; nor was there in fact.</p> <p>5. The action of the viewers was on ex parte statements of the claimants, without the respondents, or any one for them, being present, and in the absence of the ordinary means of forming a just and fair opinion as to the nature, extent, or merits of the claim made before them.</p> <p>6. The report does not describe the property taken and appropriated, either by metes and bounds, courses and distances, by a draft or survey, or in any othér mode.</p> <p>7. The report does not accurately state the quantity of ground which is really required and necessary for the construction and maintenance of the railroad.</p> <p>8. Because one of the viewers, viz.: William Compher, was dead at the time of his appointment.</p> <p>9. Because two of the viewers, viz.: William J. Dougherty and W. Ashcom, who were not present, were not duly notified of the time and place of meeting.</p> <p>10. Because the finding of the viewers that the water-power was destroyed, is erroneous.</p> <p>11. The defendants could have proved, if their case had been heard, that Thomas H. Porter did long agree with them for all his damages, and thereby all claims were liquidated in the said account, which agreement the said Porter still seeks to enforce, thus claiming double compensation for one cause of action.</p> <p>Depositions on both sides were taken and read in the court below on the hearing of the exceptions. The court below, after argument, overruled the exceptions, and confirmed the report of the viewers. **</p> <p>The defendants then removed the record to this court, and assigned the action of the court below in overruling the exceptions, for error.</p>

In Equity. Appeal from the Court of Common Pleas of Crawford county, by J. and W. Walker. William Walker was for many years the owner of a tract of land through which Conneaut creek flowed, and on which he had erected a saw-mill before 1830. The state commenced the construction of the canal, and did considerable work upon it; and in 1843 transferred it to the Erie Canal Company, who completed it.

<p>Error to the Court of Common Pleas of Erie county.</p> <p>The defendant in error obtained judgment against M. W. Keith, to whom the city of Erie, a municipal corporation, was indebted, and issued an execution attachment under the Act of 16th June, 1836, upon his judgment, and attached “ goods, chattels, rights, credits, and moneys of defendant in the hands of the city of Erie.” The sole question in the case, so far as plaintiff in error was concerned, was whether it was liable to be made garnishee. The court below, Galbraith, P., decided that it was, and sustained the attachment, which decision was the error here complained of.</p>

This case originated before a justice of the peace, and was a scire facias against James S. White, as surety on the official bond of Cyrus Elliott, a constable. Two executions were issued on the 19th day of September, 1851, by William Lock, Esquire, in favor of Gr. Kirkpatrick, against Reuben Sharp, and placed in the hands of the constable, and which he failed to return within the time limited by the Act of Assembly.

In October, 1852, Ephraim Martin, the plaintiff below, issued an attachment, under the Act of 12th July, 1842, against Martin Boyles and John Haggerty, and attached property of one of the defendants — Martin Boyles, and of Miles Boyles. Reed and Martin Boyles, defendants in this case below, gave the bond upon which this suit was brought, on the 22d October, 1852, and previous to the trial before the justice to obtain a release of the property so attached.

<p>Where a declaration in an action ex contractu, charges two persons jointly, there can be no recovery unless a joint liability be proved.</p> <p>Where one in possession of personal property, claimed by another, sells a part of it to a third person, the purchaser does not become liable to the claimant, in a joint action of assumpsit with the seller, for the price of the property.</p>

<p>Error to the District Court of Allegheny county.</p> <p>The facts of this case sufficiently appear in the opinion of Mr. Justice Armstrong.</p>

<p>The amount due upon a negotiable note, may be attached in the hands of the maker; but such attachment is unavailing as against a holder to whom the note was endorsed after the attachment, and without notice thereof.</p> <p>Where such note is endorsed after its maturity, a judgment in the attachment will be a good defence to an action by the holder, against the maker.</p> <p>The presumption that the note was endorsed in the usual course of business and before maturity, is of the weakest kind, and liable to be rebutted by the slightest circumstances of suspicion.</p> <p>That.demand was made upon the maker, or the note protested for non-payment, and no suit brought for more than six months after the maturity, were sufficient to repel the presumption, and shift the burden upon the holder of proving that the paper was endorsed to him before it was due.</p>

This was an action of assumpsit. Plea, Non assumpsit infra sex annos.

<p>Error to the Court of Common Pleas of Fayette county.</p> <p>This was an action of assumpsit on a note of Moses Sterrett, the defendant, to B. F. Weston, dated April 27, 1854, payable one year after date. In May, 1854, Weston transferred the note to John Speers, who brought this suit, for his use. Weston was a teamster, and about the time the note was given hired himself to Sterrett, to drive his team, at the rate of $11 per month, and boarded. He was also to move into Sterrett’s house, and board Mr. Sterrett and his hands, for which he was to receive $1.25 per week. About the 1st of March, 1854, Weston moved into Sterret’s house, and took charge of his team, as per agreement; but Mr. Sterrett failed to come to board with him; and after continuing on this way some two and a half months, he gave up his team, and shortly left the premises. On the trial Sterrett claimed, as a set-off to the note, $40, and also $33.39 for goods got on Sterrett’s account out of Franks’ store, as well as $3.75 paid Sheppard by Weston’s order. This was resisted by the plaintiff, who claimed that the principal part, if not all of these items, had been paid by Weston’s work, boarding, viz:—</p> <p>By 2J months driving team, at $11 per month, . . $24.87-1</p> <p>9 weeks boarding himself, at .$1.25, . . . 11.25</p> <p>1 set of harness, . . . . . . .10.00</p> <p>1 leather line, . ......1.50</p> <p>1 horse collar, . . . . . . .1.50</p> <p>Boarding Livingood,......1.00</p> <p>1 ton of hay, ....... 10.00</p> <p>$59.12|</p> <p>But the court (Gtlmore, P.) charged the jury that these payments could not be allowed against the defendant’s items of set-off. The defendant also claimed a set-off for $30 damages, which he alleged he had sustained, by Weston leaving him before the end of the year. And the court charged the jury that Weston’s account could not be received against any of Sterrett’s items of set-off, “ except for the damage which defendant claims for Weston not living up to his contract.”</p> <p>The admission of, testimony of unliquidated damages as a set-off forms the plaintiff’s first bill of exceptions.</p> <p>The plaintiff further offered in evidence, as an additional set-off, two notes for $15 each, given by Weston to one Jacob Hart, dated December 11, 1852; one payable one year after date, and the other payable three months after date, without any transfer or assignment from Hart to Sterrett, or any evidence that they belonged to him even at the trial, or that they had belonged to him before this suit was brought. These were also admitted by the court, upon which they instructed the jury that the possession of the Hart notes now, although they are not payable to Sterrett, or endorsed to him, is sufficient evidence that they were lifted by defendant, and belong to him, and entitle him to an off-set to the full amount.</p> <p>Which charge, and the admission of testimony of unliquidated damages, were assigned for error.</p>

<p>Error, to tbe Court of Common Pleas of Erie county.</p> <p>This was an action against the township of Millcreek to recover damages for an injury to Mrs. Reed, happening to her on account of the upsetting of her carriage, caused by an obstruction in the highway. The Erie and Waterford Turnpike and Parade street, are two parallel roads, running south from the city of Erie, 2l7 rods apart. The road on which the injury happened was, and had been a regularly laid out road since 1824. In 1846 the road commissioners of Millcreek township, upon a petition of citizens, • laid out and opened a new road between the aforesaid two roads, locating it about 60 rods north of the before-mentioned cross road, and vacated the said road. In 1858 the Erie and Waterford Plank-road was built, south from the city of Erie, between the turnpike and Parade street, about thirty rods from the turnpike, and for the convenience of the public, that portion of the vacated road between the turnpike and plank-road was left open and travelled. In September, 1853, Mr. Reed with his wife in a carriage attempted to drive along this road, which at that time was obstructed by timber. The wheel of the carriage struck the timber — overturned the carriage — Mrs. Reed was thrown out and her leg broken; for the recovery of damages for which injury this suit was brought. The road commissioners worked on that road in the early part of the summer of 1853.</p> <p>On the 13th April, 1843, the legislature passed a special act, changing the road laws of Erie county — abolishing the office of supervisor, and giving the entire control of roads to three commissioners. The 20th section, P. L. 217, enacts, inter alia, “ That it shall be the duty of the said commissioners to take the general charge and supervision of all the roads and bridges in each of the said townships in said county (county bridges excepted), and to lay out and alter the same at the request in writing of the citizens of said township, if they shall deem the same necessary,” &c.</p> <p>In 1846, the legislature by sections 8 and 9 of Act of 26th March, P. L. 176, provided a way of setting aside a road laid out by the commissioners, recovering damages, &c.</p> <p>Under this act, Cassimer Siegel, a citizen of Millcreek, commenced proceedings to vacate the road laid out by the commissioners, and restore the old road, in which he was unsuccessful, the court confirming the act of the commissioners.</p> <p>On the trial of this case plaintiffs went through with their testimony and rested, and defendant offered in evidence the township record, vacating the said road and laying out a new road, and also the record of the suit of Siegel in Court of Common Pleas, in which the acts and proceedings of the commissioners in this proceeding were confirmed, which evidence was objected to on the ground that it was res inter alios acta, and that the commissioners had no authority or jurisdiction to vacate a road; that the law 'only authorized them to lay out and alter, not to vacate, which objections were sustained by the court (Galbraith, P.), and the evidence rejected, which rejection constitutes the first and second assignments of error in this case.</p>

A. N. Trask, a merchant in Albion, Erie county, Pennsylvania, on the 26th day of February, 1851, obtained a policy of insurance in the State Mutual Fire Insurance Company, at Harrisburg, on his stock of goods, for the sum of $1200, for one year; the property insured was destroyed by fire on the 2d day of May, 1851.

<p>Where the board of property, upon a caveat, decided in favour of one of the parties, and the other, within six months, brought ejectment for the land, and afterwards became nonsuit in such action, this settled the title conclusively in favour of the party who had the decision of the board of property.</p> <p>In an action of trespass guare clausum fregit, by the person in whom the title became thus vested, against the unsuccessful party, for an injury committed upon the land, after the decision of the board of property, evidence that the locus in quo was within the lines of on old improvement, of which the defendant was at the time of the trespass in actual possession, was inadmissible.</p> <p>From the time that a caveat is entered until the right is determined in ejectment, the right of the parties to sue, for injuries committed upon the land, is suspended.</p> <p>During the time the right to sue in trespass is so suspended, the statute of limitations will not run against the owner, nor operate as a bar against a recovery for such injuries, although the trespass complained of was committed more than six years before suit brought.</p>

<p>Appeal, by Jonathan D. Springer, from the decree of the Orphans’ Court of Payette county.</p> <p>Zadock Springer died in 1845, intestate, leaving a widow and several children, and letters of administration were granted on his estate to J. B. Miller, in February, 1847.</p> <p>In September, 1848, Thomas R. Davidson, Esq., was appointed auditor to ascertain advancements.</p> <p>The auditor filed his report in March, 1849, charging Harvey Springer with $1574, the amount of two notes in favour of the deceased; and Jonathan D. Springer with $3847.011:, amount of note given to Rachel Skiles, Jonathan D. Springer (appellant), and Joshua B. Howell, executors of Robert Skiles, April 1,1838.</p> <p>On 7th February, 1855, on petition of Harvey Springer, the court re-committed this report to the auditor, with instructions to report whether the notes were advancements. Same day auditor reported:—</p> <p>1. The amount due from Harvey, as the notes were in the possession of the deceased, he finds, to be an advancement.</p> <p>2. The amount of Jonathan D. Springer’s claim, for which deceased gave his note to executors of Robert Skiles, for which he retained no evidence of indebtedness from Jonathan, the auditor finds to be a gift to Jonathan by deceased in his lifetime.</p> <p>To this report, J. B. Miller, administrator, filed the following exceptions: — ■</p> <p>1. That the auditor erred in treating the amount of half the note of Harvey and Aaron Springer in favour of deceased, as an advancement.</p> <p>2. In treating half the amount paid Harvey and Job Springer, to invest in land in Illinois, as an advancement. At the same date, Mr. Deford, for Harvey Springer, filed the following exceptions:—</p> <p>1. The auditor erred in the amount fixed as the advancement to Harvey Springer, to wit, $1574.</p> <p>2. In not charging Jonathan D. Springer with the amount paid by his father to Robert Skiles’s estate, as a debt due to his father’s estate instead of an advancement to him.</p> <p>The following testimony was taken and reported by the auditor.</p> <p>Rachel Skiles affirmed: Jonathan D. Springer and myself bought the store goods of Robert Skiles, deceased, under the name of Hugh Thompson and Zadock Springer. Hugh Thompson gave his note for my half, and Zadock Springer gave his note for Jonathan’^ half. We carried on business in partnership for some time afterwards. Zadock Springer brought the note and signed it without a passing remark that I recollect. He laid it down on the counter; I took it up and he never mentioned the matter afterwards.</p> <p>George W. Ratte affirmed: I assisted in taking an inventory of the stock of Robert Skiles, deceased. The stock was purchased by Rachel Skiles and Jonathan D. Springer. Hugh Thompson and Zadock Springer gave their notes in payment for the goods.</p> <p>Hugh Thompson’s deposition: I believe that after the death of Mr. Skiles, Mrs. Skiles asked me to go her security in a note for the payment of a bill of goods which had been ordered before his death, and which arrived after Mr. Skiles had died, and I did so. Zadock Springer came in just as I had signed the note, and handed his son Jonathan a piece of paper, with the remark “ that will do for your part.”</p> <p>The court, on the 4th September, 1855, decided that the note of Z. Springer to Skiles’s executors was a debt of Jonathan to the estate of his father Zadock Springer, and that the second exception of Mr. Deford was sustained and so decreed.</p> <p>The court did not decide the other three exceptions.</p> <p>J. B. Miller, administrator, assigned the following errors:—</p> <p>1. The court erred in sustaining the second exception of the petitioner, and in decreeing that Jonathan D. Springer should be charged with the bond of his father to Skiles’s executors as a debt to the estate of his said father.</p> <p>2. In not decreeing that Harvey Springer should be charged with the amount of his two notes to Zadock Springer, deceased, and treating them as advancements to the said Harvey.</p> <p>8. In granting the prayer of the petitioner, Harvey Springer, and opening the decree of advancements as they were stated by the first report of the auditor.</p>

<p>Under the Act of 12th. March, 1800, a power given by a testator to his executors to sell real estate, may be exercised by the acting executor, after the renunciation of his co-executor, whether the authority conferred be mandatory or discretionary.</p>

The plaintiffs in error were defendants below. This was an ejectment brought to enforce the specific performance of a written contract for the sale of land. The defendants below, by articles of agreement dated the 7th day of December, 1845, sold to Alexander Crow and John Hanaway a tract of land for the sum of $2350, payable four days thereafter.

This was an appeal from the Court of Common Pleas of Mercer county, distributing the proceeds of the sheriff’s sale of the real estate of John S. Huey. Huey was a member of the firm of Douglass, Henlan & Co., and during the fall of 1854, disposed of his interest in the concern to one of his partners.

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an ejectment by Thomas Burford against David, Reuben, and George Burford, to recover the one undivided eighth part of 300 acres of land. The plaintiff and the defendants are children and heirs of Reuben Burford, deceased, and both parties claimed title through him. The plaintiff claimed by descent as one of the heirs at law..</p> <p>The defendants resisted a recovery and showed the will of Reuben Burford, deceased, dated the 12th May, 1847, which was admitted to probate on the 28th October, 1852, being shortly after the death of the testator. The will was objected to by the plaintiff, because it was executed on the 12th May, 1847, and is signed with a mark, and not by signing his name; and also that the probate does not state that the witnesses were subscribing witnesses, nor that he signed in their presence. These objections were overruled, the will admitted, and the question of the legality of its execution reserved by the court. The only part of the will upon the record was as follows :—</p> <p>“ I order, that after my decease, the farm where I now reside, containing 300 acres, more or less, be divided into three divisions, as follows: — Division 1st on the east end of said tract, including the old improvement, beginning at the corner adjoining Elisha Wick, on the district line; thence along said line west, to a post marked as the corner of division first; thence by a south line across said tract to the southern boundary line of said tract; all east of this line to be division first of said tract. Division 2d and 3d of tract to be run off precisely according to the corner made and marked in the presence of John McCullough, who was called on as a witness thereto. I leave and bequeath to my son David Burford, 3d of said tract, the west end whereon he the said David resides. Division 2d of said tract being previously given to my son Greorge Burford by a special agreement in writing.</p> <p>“ I have hereunto subscribed my hand and affixed my seal, this 12th day of May, 1847.</p> <p>“ Witnesses present: his</p> <p>“E. M’Bride, Reuben ¡x¡ Burford.”</p> <p>“ Geo. Shriver. mark</p> <p>The probate was as follows:—</p> <p>“ Armstrong County, ss.</p> <p>“ Before me, register, &c., in and for said county, personally appeared Enos McBride, Esq., and George Shriver, the subscribing witnesses to the within will, who being sworn as the law directs, did depose and say that they were present and saw and heard the testator, Reuben Burford, Sr., sign, seal, publish, and pronounce and declare the foregoing instrument of writing, as and for his last will and testament, and at the time of his so doing, he, the said testator, was of perfect and sound mind, memory, and understanding, to the best of their knowledge and belief.</p> <p>“E. McBride, “Geo. Shriver.</p> <p>“ Sworn and subscribed before me, this 28th of October, 1852.</p> <p>“Wm. Miller, Register.”</p> <p>The plaintiff also alleged that the testator at the time of making the will was so enfeebled in mind by age and bodily and mental infirmity, as to be incapable of making a will.</p> <p>The court below (Buffington, P. J.) instructed the jury that the will was sufficiently executed, or that any defects in its execution were cured by the Act of 1848; and referred the question of the capacity of the testator to the jury, and further instructed them that if they found the testator of sufficient capacity to make a will at the time, “ it passed the estate to the defendants, as well division No. 2 to George, as the other divisions to the other defendants, David and Reuben, and the plaintiff cannot recover.”</p> <p>The jury found for the defendants, and judgment was entered upon the verdict.</p> <p>The plaintiff took this writ of error, and assigned for error here, the admission of the will in evidence, and the instructions to the jury as above recited.</p>

This was an action of trespass de bonis asportatis, originally brought by Rev. David Kirkpatrick against Moses Miller, and removed into the Common Pleas by appeal, where on the trial the jury found the following special verdict:— “ It is admitted that the plaintiff is a clergyman or minister of the gospel of a congregation not incorporated.

This was a feigned issue to try the validity of the will of John Rinehart, deceased, dated September 1st, 1854, in which issue the plaintiffs in error were defendants below. The will was written by Mr. Lucas by the testator’s direction.

George Loar and Charlotte Loar were brother and sister, living together on land of which they were the joint owners. In June, 1844, they made cross-wills in each other’s favour, and died unmarried and without issue, George in 1851, and Charlotte in 1855.

<p>Appeal from the decree of the Orphans’ Court of Erie county.</p> <p>Dyer Loomis, Sr., died January 23, 1842. By his will he directed that “ all my debts and funeral expenses be paid by my executor from the first money that shall come into his hands from my estate” * * * * “ my executor to have the use and occupancy of my estate until Hiram, my youngest son, attains the age of twenty-one years.” He then bequeathed some specific legacies, the' amount of which now payable is $300. Hiram became of age May 14, 1853. The will made Dyer Loomis, Jr., executor. He was in possession of the property, real and personal, at the time of his father’s decease, and so remains to this time. The evidence showed the rents and profits of the farm to be $114 per year, after the payment of taxes and repairs. Testator was indebted at the time of his decease, inter alia, to the United States Bank by note about $400. On the 6th July, 1842, the executor confessed a judgment to the bank for the amount of the note, which was revived amicably against the executor May 1, 1845, and October 5, 1848. The heirs and devisees were never made parties to the suit or judgment. April 31, 1854, more than twelve years from his testator’s death, the executor exhibited an account to the Orphans’ Court, showing a balance due to himself and others of $1762.70, and no personal property, and asked for an order to sell the real estate. This amount was made up of the debt, interest, and costs of the bank judgment, legacies, and advancements made by the executor on account of the estate upon debts which had not been made liens against the real estate. The sale was made and its confirmation excepted to, and a motion made to strike off the order, on the ground that the debt, except the legacies and expenses of administration, were not liens upon the estate: the heirs and devisees not having been made parties to the suit within ten years; and that as to advancements, the executor was in no better position than the creditor would be; and- that the rents of the estate accrued in the testator’s hands were now more than sufficient to pay the legacies and expenses of administration, no other debts being liens. The whole matter -was referred to George H. Cutler, Esq., auditor, who reported that “ at the time the order of sale was granted, the only liens upon the real estate were the expenses of administration and the legacies.” Exceptants claimed that the accrued rents in the executor’s hands should be applied to the payment of debts and legacies. The executor objected, because he alleged “ that the money belonged to the heirs, and could not be so applied.” “This,” says the auditor, “would be correct in case of an administrator, because, on the death of an intestate, lands immediately descend to the heirs. Although this question is by no means free from difficulty, the auditor, upon mature consideration, is of the opinion with counsel for exceptants, and that under the will, in this case, this fund can be so applied. The fourth clause in the will directs the legacies to be paid from his estate generally; and by its fifth clause he directs that after the payment of the legacies, the remainder of his estate, real and personal, should be equally divided among all his twelve children. Therefore the land devised was not vested in possession in the devisees at the time the order of sale was granted.” * * “ It also appears that the land sold amounts in value to nearly ten times the amount of all the liens against the estate. It is said in Davis’s Appeal, 2 Harris 371, that the court ought to decree the sale of so much land only as is necessary to. pay the debts, for the conversion of real estate is not favoured by the law; and the Act of 20th February, 1834, in case of deficiency of personal estate, only authorizes the sale of so much of the real estate as may be necessary to supply the deficiency. It is also the opinion of the auditor that the Orphans’ Court has no power to grant an order for the sale of real estate for the payment of legacies, upon the petition of the executor alone, when there has been no demand of payment by the legatees.” And further recommended that the sale should not be confirmed.</p> <p>To this report the executor filed exceptions.</p> <p>The court confirmed the report of the auditor, and decreed that the executor, Dyer Loomis, Jr., should pay the costs; from which decree the executor appealed, and assigned the same for error</p>

O’Brien & Co. R. O’Brien & Co. were merchants in the city of Erie, and failed in business in September, 1856. Three fi. fas. were issued against them, upon which their personal property was sold. The sale extended through several days, and was finally completed October 11, in the forenoon. The proceeds of the sale overpaid the three fi. fas. about $90, which surplus money was in the sheriff’s hands.

<p>Every court having jurisdiction to hear and determine civil causes, has control over its process of execution in a summary manner, and without the intervention of a jury.</p> <p>Upon a motion to set aside an execution a court may direct an issue to ascertain facts, hut this is for its own satisfaction, the parties have no right to demand it.</p> <p>Where a court has jurisdiction to determine a motion and set aside an execution its decision is final, and cannot he re-examined in a collateral proceeding. The remedy is by writ of error, or appeal.</p> <p>If an alleged error is one which is not the subject of review on a writ of error or appeal, it is then without remedy, and must be regarded as no error.</p>

Error, to the Court of Common Pleas of Brie county. This was an action of ejectment by James Callen v. John Ferguson and Others, for fifty acres of land in Springfield, in said county.

<p>Error to the Court of Common Pleas of Oraivford county.</p> <p>This was an action brought to recover the price of a mowing machine, sold by plaintiffs to defendant. The defence was deficiency in the machine, and that it was not such as represented by the plaintiffs, and of little or no value for the purposes intended.</p> <p>On the 2d day of June, 1855, plaintiffs entered a rule of reference under the compulsory arbitration law, and H. B. Beatty, A. Clark, and William McLaughlin were appointed arbitrators, to meet on the 16th day of the same month. At the time and place fixed for the meeting, Beatty and Clark, two of the arbitrators, met, and McLaughlin not attending, Samuel J. Johnston was substituted by the arbitrators in attendance, and the full board, then consisting of Beatty, Clark, and Johnston, were thereupon duly sworn, and then adjourned to meet at the same place, the court house, on Saturday, the 23d day of June, when Clark and Johnston, two of the arbitrators, only being present, they adjourned to the 7th of July, when only one, Clarke, was present, and adjourned to 26th July, at which time all of the sworn arbitrators attended, and “ continued the cause” to 8th of August, and from thence to the 11th, when the record shows that McLaughlin, who was an original arbitrator, but not one of the three that had been previously sworn in the cause, being absent, two of the arbitrators, Clark and Johnston, substituted William M. Barron, who was duly sworn, and the three thus chosen and substituted proceeded to hear and determine the case, the defendant being absent, and awarded in favour of the plaintiffs.</p> <p>On the 18th of August, 1855, defendant obtained a. rule to show cause why the award should not be set aside, and filed the following exceptions:—</p> <p>1. The full board of arbitrators, viz., Beatty, Clark, and Johnston, having been sworn in the cause and adjourned, they could not afterwards substitute or supply the absence of one of their number, as was done by Clark and Johnston.</p> <p>2. The substitution appeal’s of record to have been made to fill the vacancy occasioned by the absence of McLaughlin, who was not one of the three previously sworn and organized.</p> <p>The exceptions were argued and held under advisement from time to time until November 22,1856, when the following affidavit of William M. Barron was filed:—</p> <p>“ Upon the day of the arbitration in this case, one of the arbitrators being absent, Esquire Clark came out to the front of the court-house, and inquired of me if I would sit on an arbitration, in the presence of Dr. Bemus, and I told him I would if it would not take too long; and as I walked in I inquired who the parties were, when Dr. Bemus said he was one of them, and told me to mind my friends (this remark he made in a jocular manner). I went in and was qualified, when Dr. Bemus said he would go down street and bring up his counsel; and the arbitrators waited an hour for his return and then proceeded to trial. When I was substituted neither the plaintiffs or attorney were present.”</p> <p>The court dismissed the exceptions, and entered judgment on the award.</p> <p>The refusal to set aside the award, and entering judgment for plaintiffs thereon, were assigned as error.</p>

Error, to the Court of Common Pleas of Erie county. Henry P. Haverstick, on the 25th day of July, 1853, purchased a lot in the city of Erie, from “ The Erie Gras Company,” for $1500, and paid the whole of the money on the day of the purchase.

This was an action of assumpsit, by John Weamer, surviving partner of the firm of J. Weamer & Son, against Thomas Juart, to recover a book account for goods sold and delivered. The plaintiffs were merchants in the town of Plumville, from 1848 till 1851, when Joseph Weamer, one of the partners, died. During the existence of the partnership the defendant dealt in the store, and this suit was brought to recover an alleged balance due the firm.

Ejectment for forty-five acres of land in Eallowfield township. The land in dispute was one of the purparts of the estate of Patrick MeCardle, which was allotted to Nancy Moore, a daughter of MeCardle, and mother of the plaintiff. Mrs. Moore was married in 1818 and died in 1823, leaving her husband, Henry Moore, and son Eli Moore, the plaintiff, surviving her, who are still living.

<p>The wages of labour, or the salary of a public or private employment, is exempted from execution attachment by the Act of 15th April, 1845.</p> <p>The proviso to the 5th section of that act applies to all judgments, whether entered in the Common Pleas or on the docket of a justice of the peace.</p>

This was an action of ejectment by the heirs of Henry Shippen, deceased, against Ralph Clapp, to recover 4015 acres of land in Venango county. The title was admitted to have been in Henry Shippen, and the plaintiffs claimed as his children and heirs at law. The defendant showed that on the 4th January, 1838, Henry Shippen made the following last will and testament, which was admitted to probate on the 23d March, 1839 :— “ In the name of God, amen.

This was an action of ejectment by W. B. Williams against William Bentley and others, to recover possession of 100 acres of land in Yenango township, in said county. William Bentley, on the 80th day of December, 1850, was the equitable owner of the land in dispute, by virtue of a purchase from the owners through their agent, Judah C. Spencer, by articles of agreement, upon which Bentley had paid the purchase-money, except about $60.

This was an action brought by Mary Ann Evans against Jared B. Evans, to recover one-third of a certain in-lot, with the appurtenances, situate in the borough of Brookville, in the county of Jefferson, and numbered sixty-five in the plot or plan of said borough, as her reasonable dower, &c., as the widow of Charles Evans, deceased, who died in August, 1848, without issue.

<p>A feme covert by her trustee purchased real estate, and paid a part of the purchase-money and gave her bond, and the trustee a mortgage for the residue. She also gave a bond and mortgage to M., to secure a debt due for repairs to the premises, upon which a judgment was obtained. Iier husband was insolvent at the time of the purchase, and upon a judgment revived against him the property was sold to W. It was afterwards again levied and sold as the property of the wife, upon the judgment of M., for a sum more than sufficient to pay the mortgage of the vendor, and the surplus was claimed by W., as the purchaser under the judgment against the husband, and by M. under his mortgage and judgment against the wife. Held—</p> <p>That M. being found to be a bona fide mortgagee of the wife, without notice of the secret title alleged to be in the husband, his lien would not be cut off by the subsequent discovery of that fact, and he would be entitled to the fund in preference to the purchaser at sheriff's sale of the husband's title.</p>

The plaintiff in error was defendant below. The facts of the case sufficiently appear in the following proceedings :— “ We, the said S. Newton Pettis and John Wightman, do hereby agree to submit the following matters and things (all the law and facts involved in the same) in controversy in our said suit to David Derickson, D. A. Einney, and James R. Dick, mutually chosen by us, to wit: The account for professional and every other description of services rendered and…

This was a scire facias sur judgment in a foreign attachment, at the suit of Lucas Shaw against Pettibone, Hoban & Co. Judgment was obtained against the defendants for $964.94, and in which Born, Garrison and others, -together with the Baltimore and Ohio Railroad Company, were garnishees. To the scire facias the garnishees pleaded nulla bona, with leave to give the special matter in evidence.

<p>Error to the Court of Common Pleas of Hrie county.</p> <p>This was an amicable action of assumpsit by Me Coon & Sherman against Galbraith & Graham, attorneys at law.</p> <p>In January, 1841, the plaintiffs, merchants in the city of New York, sent to the defendants, who were at that time practising lawyers in copartnership, under the firm of “ Galbraith & Gra.ham,” a claim against S. C. Walker, of Erie, for collection.</p> <p>Portions of the claim were collected, from time to time, and remittances made to the plaintiffs in New York, up to the 26th day of May, 1843, when a settlement took place between Galbraith & Graham, on part of the plaintiffs, and S. C. Walker, and on that day paid Galbraith & Graham $144.93, and gave a new note, payable to the plaintiffs, for $418.11, being the balance due on the original claim. Walker paid Galbraith & Graham, September 12, 1843, $317 on the note, and paid John Galbraith, Esq., on the 27th day of March, 1848, $138.14, the balance of the note. The defendants, by letter, dated June 14, 1843, informed the plaintiffs that they had adjusted the claim against Mr. Walker, by talcing other securities, nothing said about any money having been paid by Mr. Walker to them. On the 27th February, 1847, Galbraith wrote the plaintiffs, “For the claim against Walker a number of small notes, &c., were transferred as collateral, to what amount, or how much has been collected on them, I have not been able as yet to ascertain with precision, but have the way all clear now, so that I can ascertain, and will do so as soon as possible, and inform you, and have that closed up, Mr. Walker is now here, came yesterday, and, in a day or two, with his assistance, can ascertain how the matter stands, and shall go at it.” On the 9th of July, 1847, Galbraith again wrote to the plaintiffs that he had not seen Walker, that Graham was absent, consequently was unable to give the desired information in relation to the Walker claim. July 25, 1847, Galbraith issued a writ of foreign attachment, McCoon & Sherman v. S. C. Walker, upon a note dated 26th May, 1843, for $418.11, and attached property of Walker, which suit was not prosecuted to judgment.</p> <p>On the 25th day of February, 1852, Galbraith and Lane remitted to the plaintiffs $156.40, on the claim against Walker, leaving, at that time, a balance due to plaintiffs of nearly $600 on the Walker claim. In the spring or summer of 1852, the plaintiffs placed their claim in the hands of Marshall & Yincent for collection. An amicable action was agreed to be entered, which agreement was made on January —, 1853, but not filed until 5th December, 1853. The defence set up by the defendants was the statute of limitations.</p> <p>On the trial, defendants requested the instruction of the court on the following points :—</p> <p>1. “ That the commencement of this suit, as shown by the record, is the 5th December, 1853, and all claims or causes of action against the firm of Galbraith & Graham, more than six years prior to that date, are barred by the statute of limitations, and the plaintiffs cannot recover in this case.</p> <p>2. “ That the letter of 27th February, 1847, read by plaintiffs, contains a distinct notice to the plaintiffs of the dissolution of the firm of Galbraith & Graham, and all claims for moneys collected by Graham or Galbraith & Graham are barred at any time after six years from that date.</p> <p>3. “Thatthe letters of John Galbraith, of the 27th February, 1847, or at any time afterwards, do not take the case out of the statute of limitations as to the firm of Galbraith & Graham.</p> <p>4. “ That the collection of the balance of the money due from Walker, and paying it over by the firm of Galbraith & Lane, has no operation to take the case out of the bar of the statute of limitations.</p> <p>5. “ That on the whole evidence of plaintiffs, if taken as true, the plaintiffs are not entitled to recover, the claim having been barred by the statute of limitations.”</p> <p>The court (Dbrrickson, J.) charged the jury as follows :—</p> <p>The cases of McDowell v. Potter, 8 Barr 189; Foster v. Jack, 4 Watts 334; Derrickson v. Cady, 7 Barr 31, are directly in point.</p> <p>Upon the other hand, it is contended that the cases of Agnew v. Fetterman, 4 Barr 56, and Downey v. Garard, 12 Harris 52, conflict with McDowell v. Potter, Foster v. Jack, and Derrickson v. Cady. We think they do not, that those cases all can easily be reconciled.</p> <p>The jury found for defendants.</p> <p>The plaintiff sued out this writ and assigned the charge of the court for error.</p>

The defendants were indicted for a conspiracy to commit an assault and battery on Andrew L. Haskell, at February Sessions, 1857, upon which the jury rendered a verdict of guilty.

<p>Error to tbe Court of Common Pleas of Grawford county.</p> <p>This was a feigned issue from the Register’s Court to try the validity of the will of Robert Blair, deceased, in which the plaintiff in error was plaintiff below, and Martha Blair, the widow of the testator, defendant. The will was dated March 4, 1854, and was proved in due form the 8th of the same month. The only question in the Common Pleas was as to the competency of testator to make a will.</p> <p>Mr. Blair was about sixty-five years of age — was an intelligent farmer — read a good deal, and was a man in his situation of considerable information — was fond of anecdotes and relished a joke. The peculiar traits in his character manifested themselves to the latest, as indicated in some of his remarks as narrated by the witnesses — a stranger might regard them as the signs of an unsound mind, but to those who were familiar with him they were perfectly natural. The scrivener commenced writing the will at about noon of the 3d March, and finished about 2 o’clock the next morning. He wrote the will in a room adjoining that in which the testator lay, with the door open, so that the testator could see him. When he had written an item he would go to the testator and read it to him, and pursued this course till the will was written.</p> <p>The defence called several witnesses to support the allegation of Blair’s incompetency to make a will in consequence of imbecility or derangement of intellect.</p> <p>Against this, plaintiff produced the scrivener, whose testimony was foil and explicit, detailing what took place between the testator and himself during the fourteen hours that transpired from the commencement to the execution of the will. He said that Blair’s mind was during the night as bright as ever. Other witnesses corroborated the scrivener.</p> <p>Defendant’s first and thirteenth points. — 1. The intestate laws make so just a distribution of a decedent’s estate, that no other can be set up except upon full and satisfactory statute proof that such was the real intention of the decedent; and hence, a sound and disposing mind and memory in the testator, must be found at the time he so expressed his intention, and this mental soundness consists in ability to reflect upon his business affairs; understand the nature of what he is doing; with a recollection of all his estate — his family relations in life, as well as their condition in general, and the probable effect the proposed disposition will have, and to collect this all in one view.</p> <p>13. Whenever the provisions of an alleged will are inconsistent with natural justice, it requires strong proof of capacity and volition to sustain or establish it to be a valid will, and slight proof of incapacity under influence or fraud, is sufficient to set aside such a will.</p> <p>The court (Galbraith, P.) charged as follows: “ The general presumption of law, in relation to a will legally proved, is in favour of the sanity or capacity of the testator, and the burden of proof is on him who attacks its validity on that ground. (Sterns and Wife v. Vancleve, 4 Wash. C. C. Reports 269, read and commented upon.) If a general state of insanity of the testator is established, then the presumption is changed and the burden of proof thrown upon those who set up the will. The general rule is very briefly and clearly stated in the case of Harrison v. Cowan, at page 555, 3 Wash. C. C. Reports, as to the capacity of the testator. It is there stated, ‘ He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged — a recollection of the property he means to dispose of — of the persons who are the objects of his bounty, and the manner in which it is distributed between them.’ It is not necessary that he should have sufficient capacity to transact business as a person in the full possession of his powers and faculties — much less capacity would be sufficient to make a will than to enter into a contract. I know of no case reported in any of the books in which the general rules of determining a testamentary capacity, are more fully, clearly, and truly stated, than in the case of Leech v. Leech, by Judge Kins of the Common Pleas of Philadelphia, reported in Am. Law Jour. vol. 4 (new series), p. 174 (a considerable portion of the principles stated in that case, read to the jury, and applied to portions of the testimony, on both sides of the cause).</p> <p>“ With these general rules, it is for the jury to consider the whole evidence in the cause. The testimony perhaps pretty clearly establishes that the testator was in a state of great bodily weakness, and had heen languishing for several days, sometimes suffering much from sickness and pain, and that he died in a few hours after the execution of the will, and that his mind was to a considerable extent enfeebled, was a necessary consequence; but the inquiry is for you to ascertain whether it ivas so far enfeebled as to establish testamentary incapacity. The subscribing witnesses who are competent in law to testify to their opinions of his capacity, while other witnesses can only testify to their opinion after stating facts upon which their opinions ■ are founded, have given their opinion now as to the testator’s capacity at the time of the execution of the will and before and after; other witnesses have stated his situation, his acts, conversation, &c., with some detail. As to the mode of testifying, there is no witness more satisfactory than Hugh Blair, the brother of the testator, who, declining to give any opinion on the question of capacity further than to say he did not hear 1 any nonsense’ from him, details minutely the whole conversation, expressions, acts, and conduct of the testator before the execution of the will, about the time and down to the close of life. It is for the jury to say how far they rely on his testimony, and what bearing it has on the point of inquiry, keeping in view particularly the state of the testator’s mind at the time of the execution. Among the witnesses who have detailed acts and conversations upon which' they testify to an opinion against the capacity, is Dr. Clark, who was the attending physician for two or three days before his death, and saw him, and visited and examined him in the evening before his death; describes his symptoms, the nature of his disease and how it operated, both upon his body and mind. The testimony of a physician attending his patient, as a general rule, is entitled to great weight, if he understands what amount of capacity is sufficient to make a valid testamentary disposition of his property.</p> <p>“ The jury may examine and take into consideration the provisions of the will itself, as containing intrinsic evidence on the question of testamentary capacity; for although you have no right to meddle with the motive or determine the wisdom or justice of any man’s disposition of his property as he pleases; yet important evidence may be derived from the provisions of the will, in connexion writh the circumstances of the testator at the time, purposes expressed, and objects mentioned, &c. Perhaps the strongest circumstance against this will — that is, against the testamentary capacity of the testator — may be found in the provisions for Mrs. Blair, in connexion with the testimony of Hugh McMasters the scrivener, and one of the witnesses called by the plaintiff to support it. He testifies that when he was called upon by the testator to draw his will, he stated his purpose to be to ‘ secure a living for Matty,’ or to secure Matty (his wife). The testator’s wife Matty, was living, and they had no children. By law she would he entitled to the one-half of the personal estate, which in this ease was somewhere in the neighbourhood of $6000, consisting mainly of bonds and obligations for the payment of money. By the provisions of the will she would receive interest only during life on somewhat more than the third of the money obligations, without any control of it at her decease. There were some articles of farming utensils, cows, horses, &c., bequeathed to her by name, but whether to her absolutely, or really to be disposed of to the children of John Blair, is matter of controverted construction by the counsel on this trial. The will is written without punctuation from the beginning to the end, and it depends upon the insertion of a point what is its true meaning. If immediately following the word £ pleasure,’ it is an absolute disposition of those articles to her. If the point be placed after the words £ John Blair deceased,’ it would seem to be a mere gift to the children of John Blair, through her hands, or perhaps rather insensible and without any intelligent meaning. The most grammatical construction would be that last stated here, inasmuch as the first clause relating to the home, and cattle, &c., seems more naturally connected with the words £ to the children of John Blair deceased,’ than the next provision relating to the money, commencing with the words, £ and also,’ both being used would seem to indicate the commencement of a new subject. But we are not called on to give construction judicially, of this part of the will. It is not submitted to the jury in this case for judicial construction. It is submitted to the jury for their consideration. The testator had sold his farm and converted it into bonds for the payment of money. It is' urged for the defence, that under these circumstances, the disposition of articles belonging to the farm, of little or no use to her, difficult to dispose of, expensive to retain and keep, and troublesome to manage, would impose a burden upon the widow, rather than secure a living.to her, as the money arising from the obligations would do. The jury will look carefully, then, at the will itself with all its provisions, connected with the circumstances of the testator, his declared purposes and objects, and determine for themselves whether there is anything in it so unreasonable, extravagant, or insensible, as to furnish evidence bearing upon the point of capacity, at the time of the execution of the will.</p> <p>££ The law is generally correctly stated in the defendant’s first six points, excepting that the language used in the first point is somewhat stronger than we have employed in the general charge; and to the second point we say that unsoundness of mind shortly before the decease, is not so much a legal presumption of testamentary incapacity at the time of the execution, as it is evidence to a jury to pass upon under all the evidence in the case.</p> <p>“ To the 13th point, it is answered that the provisions of the will being inconsistent with natural justice, may be a circumstance with the jury, and they must judge from the whole evidence in the case, the force of that circumstance, keeping in view the single question of capacity, at the time of the execution of the will.”</p> <p>The jury found for the defendant, and against the validity of the will.</p> <p>The errors complained of are the answers of the court to defendants first and thirteenth points, and parts of the general charge.</p>

<p>Error to tbe District Court of Allegheny county.</p> <p>This was an ejectment in the name of Oliver C. Taylor, by his guardian, against Joseph Birmingham, to recover a tract of land in Allegheny county, containing 98 acres and 80 perches. John Taylor, in his lifetime, was the owner of the land in dispute, and made his last will and testament on the 14th September, 1844, which, after his death, was admitted to probate on the 5th October of the same year. By this will he devised it as follows: “ To my sons, Alexander and Wilson Taylor, I give and devise the tract of land on which I now live, adjoining lands of William Jackman, James Taylor, and David Dickson, containing 100 and — acres, or thereabouts, with all the improvements thereon, to be equally divided between them, by a line running north and south through the whole tract: the choice of which part each shall occupy is left to themselves, or decided by lot, as they shall think best, to them and each of them, their heirs and assigns, in fee simple for ever.”</p> <p>After the death of their father, Alexander and Wilson entered into possession, and farmed the land in partnership for some years. They also purchased 15 acres and 5 perches, adjoining the eastern end, from the executors of Robert Baldwin, deceased, and received a deed for it, dated 10th December, 1845. They subsequently divided the tract by a line running nearly north and south, after which each occupied the share allotted to him, Alexander taking the east and Wilson the west end of the farm: the part purchased from Baldwin was included in Alexander’s part. And on the 15th January, 1850, Alexander and wife conveyed to Wilson Taylor and Sarah Ann his wife, the part allotted to Wilson, and Wilson and wife executed and delivered a deed to Alexander and Elizabeth his wife for the other purpart.</p> <p>On the 22d of January, 1850, Alexander Taylor, who was then in declining health, made his will, and which contained the following provision:—</p> <p>“ To my beloved wife, Elizabeth, I give and bequeath the tract of land on which I now reside, containing 98 acres and 81 perches, to be hers, for her support and maintenance, so long as she remains my widow; and in the event of her death or marriage, then, in that case, it is my will that it belong and I hereby devise it to my child or children that may be born of her, should she have any by me. In case of the death of my wife Elizabeth during her widowhood, or of her marriage, leaving no heirs by me, then it is my will, and I hereby devise the aforesaid lands to my nephew', Oliver Cromwell Taylor, son of my brother, John Taylor.”</p> <p>Alexander died in April, and his will was proved 6th May, 1850. ' At the date of the will he had no children, but before his death a daughter was born, who was named Elizabeth Jane, and who died in July of the same year.</p> <p>On the 4th of October, 1853, Elizabeth Taylor, the widow of Alexander, conveyed the land, by deed duly acknowledged, to Joseph Birmingham, the defendant in this action, in consideration of $350, and recites the will of John Taylor, the deed from Wilson Taylor and wife, and the will of Alexander Taylor. Under this deed the defendant went into possession. In June, 1854, Elizabeth Taylor was married to Daniel O. Bailey, in the state of Ohio, where they still continue to reside.</p> <p>The plaintiff claimed the land as devisee under the will of Alexander Taylor.</p> <p>The defendant claimed that under the deed from Wilson Taylor and wife to Alexander Taylor and Elizabeth his wife, the said Alexander and Elizabeth took a joint estate in fee simple, which on the death of Alexander survived to his wife, the said Elizabeth. Defendant further claimed that under the will of Alexander Taylor, his daughter was seised of the estate in fee simple, subject to the provision for life or widowhood to her mother, and that on her death her estate vested in her mother under the intestate laws; that a fee to Oliver C. Taylor could not be limited on a fee to testator’s daughter.</p> <p>Defendant further claimed that on the widow’s marriage there were left brothers and sisters of testator “ heirs by me,” his next of kin, who would take under said will, and that plaintiff took no title; that the word heirs does not mean children, the testator using both terms properly in his will.</p> <p>Defendant further claimed that in any event the widow took a fee as survivor, under said deed, of the half of the 15 acres and 5 perches of the Baldwin lands, the half which Wilson Taylor and wife had therein being conveyed, they having received no part of said land.</p> <p>The court below (Hampton, P. J.) directed a verdict for the plaintiff, reserving the points stated. On a subsequent day, after stating the facts, he delivered the following opinion, and entered judgment on the verdict in favour of the plaintiff:—</p> <p>“ Two questions of primary importance in the cause are raised by this evidence.</p> <p>“ 1st. Did Elizabeth Taylor take an estate in fee by survivor-ship, under the deed from Wilson and wife ? If so, the plaintiff cannot recover; if not, then,</p> <p>“ 2d. Did she do anything under the will of her husband to forfeit her right of dower in the land in controversy; and may not the defendant now under his deed from her retain the undivided third part during her life ?</p> <p>“ Other questions were raised and discussed on the trial, but the decision, it seems to me, will dispose of the whole case.</p> <p>“ First, then, as to her right by survivorship. The solution of this question depends on the true character of .the transactions between Wilson and Alexander, leading to and terminating in the deeds of 15th January, 1850. Regarding the form of the deed alone from Wilson and wife as 'a naked purchase and sale of land, there could be no doubt of her right as tenant in fee, to hold and dispose of the premises, under well considered and repeated decisions of the Supreme Court. But if these two deeds, when taken together, and in connexion with the will of John Taylor, and the facts that they first occupied the land together, and subsequently ran a line dividing the land, and each entered into the separate possession of his own part, show only a partition, and not an ordinary purchase and sale, then the mere form of the deed is to be disregarded, and the true intent and meaning of the parties are to be carried into effect by regarding the deeds merely in the light of mutual releases. And in that case the deed would confer on the wife no title by survivorship, and the plaintiff would have a right to recover at least two undivided third parts of the land in dispute.</p> <p>“ The true mode of ascertaining the intention of the parties to a contract, or any other transaction, is to place ourselves as nearly as possible in their situation at the time, with all the facts and circumstances surrounding them. Such a stand-point will afford us a much clearer view than any other. Here, then, we have the two brothers holding in common, as their deeds declare, a large tract of land devised to them by their father, under specific directions how it shall be divided and held in severalty. We find them making a division of the same according to these directions, and each taking exclusive possession of his own portion — then follows the execution and delivery of mutual deeds alike in' everything but the transposing of the names and the description of the property. The consideration in each is one dollar. These facts taken together clearly characterize the transaction as one of partition merely, and not an ordinary purchase and sale, so as to bring it under the rule of law, applicable to the case of survivorship by the wife.</p> <p>“ In overlooking the mere form of the deed, and regarding the substance of the transaction, we have the authority of the Supreme Court in Stehman v. Huber, 9 Harris 260. In delivering the opinion of the court, Mr. Justice Lowrxe says, ‘ When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the' transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one. If the husband has paid money for equality of partition, and the conveyance be to the husband and wife, he acquires an interest in common with her in proportion to the amount.’</p> <p>“ Here, it is not pretended the wife paid any purchase-money, or owelty of partition. True, she released her right of dower in Wilson’s portion, but for that her right of dower was doubled in the portion taken by her husband. Before the partition she and the wife of Wilson each had the right of dower in the whole to the extent of their husbands’ interest respectively, but afterwards each was entitled to dower of the purpart set off to her husband in severalty.</p> <p>“ In 2 Cruise 261, it is said a woman shall also be endowed of an estate in common; but in such case dower shall be assessed in common; for the widow cannot have it otherwise than her husband had it.</p> <p>“ I am of opinion, therefore, that the widow of Alexander Taylor did not take an estate in fee by survivorship under the deed in question, and on this point the law is with the plaintiff.</p> <p>“ A careful examination of the will of Alexander Taylor, and the authorities cited by the plaintiff’s counsel at bar, show clearly that on the death of Elizabeth Jane, his daughter, during the widowhood of the mother, the fee vested absolutely in the present plaintiff, and consequently the law is with the plaintiff on the second question reserved.</p> <p>“ The fifteen acres purchased from Baldwin’s executors are to be regarded in the same light as the rest of the land, and therefore the same rule of law and reasoning apply to both. These fifteen acres were thrown into the amount to be divided, and were as much the subject of partition as the other tract. This ground of defence, therefore, cannot avail the defendant. This point must be ruled in favour of the plaintiff.</p> <p>“ The fourth 'and last question reserved relates to the defendant’s right to retain possession of the one undivided third part of the premises in controversy during the life of the widow, under his deed from her, by virtue of her right of dower.</p> <p>“ The present defendant occupies no better position than his grantor would if she had not conveyed, and the present suit were against her. Could she then successfully defend her right as tenant in dower to retain the one undivided third part of the land in controversy?</p> <p>“It may not be improper here to remark that I can discover, from the evidence, no reason why the widow, or any one claiming under her by proper conveyance, should not have her dower assigned by due course of' law. But that question does not necessarily arise here, and therefore we do not decide it. Granting for the present that her right of dower existed in full force at the date of her deed to Birmingham, and that it might still be enforced in her name for his use, by instituting the appropriate proceedings, we come directly to the question whether that right can avail the defendant in the present action. It is well settled, by repeated decisions in England as well as in this state, that a widow cannot maintain an action of ejectment for her dower, her remedy being either by an action of dower under certain circumstances, or by proceeding in the Orphans’ Court under our Acts of Assembly : see 1 Yeates 424; 5 S. & R. 536; 10 Id. 326 ; 13 Id. 85 ; 2 Wh. 116; 7 Watts 191, and many other cases to the same point. But it may be said, although she could not recover, yet she might defend on such a title. This position would be unsound, for although a defendant in ejectment may stand upon his possession until a ¶ rima facie case be made out; yet when that is done, the defendant must either overturn the plaintiff’s title, or show such title in himself as would enable him to recover if he were plaintiff The reason of the rule which prevents her from recovering, as laid down in the books, is, that she is neither a joint tenant, copartner, nor tenant in common with the heirs or devisees. So that her interest or estate in the lands determines her rights and her remedies.</p> <p>“ The rule of law that would turn a widow out of possession of her deceased husband’s lands, while her right of dower exists, may be characterized as harsh and unreasonable. We can only say in reply, with Lord Chief Justice Db Grey, in 3 Wels. 522, when speaking on this subject, “If the law be so, we cannot determine to the contrary upon inconvenience, or the hardships of the law.” The rule has been too long settled to be modified or disregarded by the courts. The legislature alone can remedy the evil, if evil it be. There are numerous authorities on this subject, but a few only will be cited. In Evans v. Webb, 1 Yeates 424, it was held that a devisee might recover in ejectment against the widow without previously assessing her dower.</p> <p>“ Mr. Justice Yeates, in delivering the opinion of the court, says: 1 On the second point it was very clear, from the books, that a woman entitled to dower cannot enter on the land of her husband until it be assigned to her, and set out either by the heir, terre tenant, or sheriff in severalty,’ and for this doctrine he cites a number of authorities. ‘ If she even recovers dower of the lands, she cannot enter before execution issued.’ On the most minute search we have been able to make, we cannot find any case where it is laid down that the widow may legally enter on the lands for her dower at common law. But a distinction was contended for by the defendant’s counsel, that though the widow could not justify her entry against the heir or devisee, yet such heir or devisee could not recover against her, when in possession as defendant in ejectment. We can see no ground-whatever for the distinction. For if she could hold adverse to the heirs or devisee without an assignment of dower, she could also maintain ejectment to recover such possession.</p> <p>“ In Pringle and Others v. Gaw, 5 S. & R. 536, Duncan, J., says: ‘ By the common law it is well established that if the widow’s claim be in the nature of dower, an ejectment will not lie before assignment. She is not seised of an undivided third part with the heirs. Ejectment is a possessory action, and it is certain she cannot hold the possession against the heir, she is not seised until assignment, of an undivided third part. The widow and heir or heirs are neither tenants in common, joint tenants, nor copartners: 9 Mass. Rep. 13. The same .doctrine is reasserted in Brown v. Adams, 2 Whar. 191, Jones v. Hollopeter, 10 S. & R. 328, Thomas v. Simpson, 3 Barr 68, and many other cases, which it is unnecessary to quote.’</p> <p>“ From the authorities it is clear the defence on this ground must fail on the whole case, therefore the law is with the plaintiff.</p> <p>“ Let judgment be entered on the verdict in favour of the plaintiff on all the questions reserved.”</p> <p>The defendant took this writ, and assigned for error that the court erred in ruling the several points stated in favour of the plaintiff.</p>

<p>Error to tbe District Court of Allegheny county.</p> <p>This was an action of ejectment brought by William McMullin, who sues by his guardian, John Ramsey, against William 0. Leslie, for a certain lot of ground, situate in the First Ward of the city of Allegheny, upon which are erected two brick dwelling-houses, on the corner of Robinson street and Bank lane, in which the parties agreed on the following facts in a case stated:—</p> <p>On the 7th day of February, 1839, William A. Irwin and wife, for the consideration of $ , conveyed the lot of ground in con-</p> <p>trovery to William Hughes, of Allegheny City, in fee simple, which was duly recorded.</p> <p>On the 24th day of February, 1843, William Hughes made his last will and testament, and devised the lot in controversy to John McMullin, in the following words:—</p> <p>“ I bequeath to my son-in-law, John McMullin, the lot of ground in Irwin’s plan, in the bottom, and that John McMullin will have to pay $150 still yet to pay on said lot, and said lot is to be given to William McMullin, as the first son of the above.”</p> <p>The will of William Hughes was admitted to probate June 14, 1843. Shortly after the death of Hughes, John McMullin entered into possession of the lot, paid the $150 as directed by the will, and built two brick houses thereon.</p> <p>On the 9th day of February, 1854, George H. Bell obtained a judgment against John McMullin, in the District Court, for $199, issued execution, the sheriff levied upon the interest of John Mc-Mullin in the lot in controversy, made his return in due form of law of “inquisition and condemnation,” after which a vend, ex-ponas was issued, and the property was advertised for sale by the sheriff on the 1st day. of May, 1857, was sold by him to the defendant, William O. Leslie, for the sum of $155.</p> <p>The deed to the defendant was acknowledged the 16th day of May, 1857.</p> <p>John McMullin is still living.</p> <p>June 26, 1857, the court below entered judgment for the defendant on the case stated.</p> <p>The plaintiff thereupon removed the cause to this court, and assigned for error that the court below erred in entering judgment for the defendant.</p>

<p>M. conveyed a lot to the Commonwealth for an arsenal, in which there was a dedication of a street to the public, which conveyance was recorded in the office of the secretary of the Commonwealth — Held, not to be notice to a subsequent bona fide purchaser for a valuable consideration.</p> <p>The office of the secretary of the Commonwealth is not an office for the recording of conveyances of real estate.</p> <p>The plaintiff below derives title from a mortgage anterior to the date of the deed from M. to the Commonwealth. Query, Would she have been affected by actual notice ?</p>

This was an action of ejectment brought by Robert Halsey against K. L. Blood, to recover possession of 900 acres of land, surveyed upon warrant No. 2370, and situate in Heath township, Jefferson county. The title appeared to have been regularly vested in Wilhelm Willink & Co. In 1830 it was assessed with taxes in the name of Willink & Co., and, as is alleged, sold for their non-payment by William A. Sloan, treasurer of Jefferson county, to one George W. Pelton.

<p>On a trial -for burglary the jury may be discharged, if after consultation they cannot agree, and defendants held for another trial, and a plea of “ once in jeopardy for the same offence” will not avail.</p> <p>On a trial for burglary, the jury may be allowed to separate at the usual times of adjournment, after being cautioned by the court to avoid all conversation about the case.</p>

The real estate of Leander C. Hall & Co. was levied and sold by the sheriff for the sum of $6500, being less than the amount of the judgments and liens of record against them.

Robert Davis was the owner of three lots of ground on Liberty street, Pittsburgh, and entered into an agreement with I. & A. Patterson, builders, to erect on the same three warehouses, for the sum of $9000. The work was begun on the 29th day of March, 1852, and completed about December of that year.

Error, to the Court of Common Pleas of Crawford county. The plaintiff in error was defendant below. This was a judgment entered on a bond with warrant of attorney for $3000. Interest from October 4, 1853.

This was an action on the case by Jacob P. Hutzel against Hiram Eindlay. On the 9th April, 1850, Findlay obtained a judgment against M. & S. Ayres, for $99.43, before a justice of the peace, on proceedings in attachment. Upon this judgment an execution was issued, and placed in the hands of Hutzell, the plaintiff in this case, who was then a- constable.

This was an action of ejectment by Andrew Soles against John Hickman to recover the possession of lot No. 47 in McKeesport. The plaintiff gave in evidence the will of Samuel Brown, dated 30th June, 1849, proved 5th July, 1849, by which he devised the lot in dispute to Martha McGonigle, who, on the 7th July, 1849, took out letters of administration with the will annexed.

<p>A judgment of restitution, given upon the reversal of an erroneous judgment, is conclusive of the matter adjudicated by it: and establishes the right of the plaintiff in error to be restored to all things which he has lost by reason of the erroneous judgment.</p> <p>Its justice arid legality cannot be drawn in question in any collateral action or proceeding; nor will its execution be delayed to abide the final result of the suit in which it is rendered.</p> <p>Where a defendant has been deprived of the possession of the premises under an execution on an erroneous judgment, upon reversal of the same, he is not only entitled to be restored to the possession of the same, but to the crops which he lost, either by judgment of restitution or by action.</p> <p>Qucere, Whether the proper and only remedy in such case is by judgment of restitution, or whether an action on the case may be sustained ?</p>

This was a proceeding to vacate and supply a road. September 13th, 1856.

This was an action of debt brought by S. F. Yon Bonnhorst & Co., for use of Alvin Wilkins, against James Nelson, on the following instrument of writing : “Pittsburgh, January 10, 1852. “ Due S. F. Yon Bonnhorst & Co. ten hundred and seventy-one y4^¡ dollars, for value received, which I hereby agree to pay whenever in my opinion my circumstances will be such as to enable me so to do, any receipt to the contrary notwithstanding.

This was an action of assumpsit by John W. Ery and Jacob Hartman, late partners under the firm of John W. Ery & Co., for the use of the Stark County Bank, against Samuel H. Lucas, to recover the price of 300 bushels of corn.

<p>Error to the Common Pleas of Indiana county.</p> <p>This was an action of assumpsit by John Graff, against Edward P. Emerson, upon the following writing: — ■</p> <p>“ I do agree, provided John Graff sees fit to take twenty shares of additional stock to his present subscription, to pay any loss he may sustain — provided, however, that the same does not amount to move than five dollars on each share, and if the loss on each share does not amount to five dollars on each share, I am only to be held for any amount under, but nothing'over, by way of interest or otherwise, and in case I see fit, I am at liberty to take the above-named twenty shares or any part of them, provided I refund Mr. Graff the amount paid by him on the above shares of Pennsylvania Railroad stock; the above predicated on the Blairsville Branch road, and not to be exacted or in force unless the same is made. Edward P. Emerson.</p> <p>“ August 13th, 1850.”</p> <p>After the date of the above, Graff subscribed the twenty additional shares, and in June, 1852, sold it to William Bennet at $45 per share, and brought this action to recover the loss of $5 per share with interest.</p> <p>The defendant resisted the recovery because the paper was a mere proposition, and he never had any notice that it had been accepted by Graff, and that he could not recover without proof that he had tendered the stock to the defendant, or given him notice before selling it.</p> <p>The court below (Burlington, P. J.) charged, inter alia, as follows:—</p> <p>“ This question depends mainly on the construction of the contract, and the court are of opinion that it was an absolute agreement to pay the loss, provided the sale was a fair one, and the loss not greater than the amount mentioned in the agreement. Dr. Emerson had the power by the contract to take the stock, by paying the full value, but. this right ought to have been exercised within a reasonable time, and if not so exercised, and the stock demanded for a period of nearly two years, nor till after it had been sold by plaintiff, he had no reason to complain of the sale.”</p> <p>The jury found a verdict of $113.20 in favor of the plaintiff, and judgment was entered upon the finding.</p> <p>The defendant removed the cause to this court, and assigned the charge of the court below for error.</p>

This was an appeal by Washington McClintock from the decree of the Orphans’ Court, overruling the report of an auditor appointed to distribute among the creditors of John N. Martin, deceased, the amount in the hands of his administrator. Martin died on the 22d July, 1853, indebted to McClintock in the sum of over $2000, for money collected by Martin for McClintock from Rawle & Lipscomb.

Appeal , from the decree of the Common Pleas of Indiana county. On the 2d day of April, 1850, Robert Johnston conveyed to James Hill a tract of land situate in Indiana county, for the consideration of $500: of this sum $100 was paid at the delivery of the deed; and to secure the payment of the remaining $400, Hill executed to Johnston a mortgage on the premises.

This was a suit brought by “ The President, Directors, and Company of the Bank of Kentucky” against James Gray, on the following three bills of exchange, amounting in all to $8000:— “ Pittsburgh, October 29, 1855. “ Three months after date, pay to the order of ourselves, three thousand dollars, value received, which place to the account of “Wm. A. Jones & Co. “To James Gray, of Fourth street, Pittsburgh, Pa.” Endorsed— “ Wm.

This was an action brought by James J. Lynn against Isaac Lynn, administrator of Charlotte Lynn, deceased, to recover the amount of boarding alleged to be due and unpaid from the mother. J ames J. Lynn lived in Illinois. His mother Charlotte Lynn was an old and infirm lady who had a life estate in a large amount of property in Fayette county. About a year before her death she went to Illinois to reside with the plaintiff.

This was an amicable action brought, wherein the Commonwealth of Pennsylvania is plaintiff, and the Cleveland, Painesville, and Ashtabula Railroad Company are defendants. The parties agreed to the following case stated. The Cleveland, Painesville, and Ashtabula Railroad was originally incorporated by an Act of the General Assembly of the State of Ohio, passed the 18th of February, A. D. 1848.

This was an amicable action in which the county of Washington was plaintiff, and Logan & Dorman defendants, in which the parties agreed upon the following ease stated:— And now, May 21, 1857, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court, in the nature of a special verdict.

This was an action of ejectment brought by Thomas Woods against Robert and David Jack, to recover the possession of the one undivided fourth part of a tract of land in Mifflin township, Allegheny county, containing 318 acres. The plaintiffs and defendants both claimed under a deed dated 31st October, 1803, from Catharine Thompson to Mary Thompson, for life, with remainder to her son William Irwin Thompson, in fee.

<p>Mere comparison of handwriting with others, admitted or proved to be genuine, is not allowed as a means of getting a writing before a jury.</p> <p>Such proof is however legitimate in attacking a writing as false or forged, and especially where other evidence has been given casting suspicion upon the genuineness of the proposed writing.</p> <p>In such case the parties may call experts to aid the jury in the comparison, by giving their opinions as witnesses.</p>

This was a scire facias, issued in the Court of Common Pleas of Allegheny county, in the name of the Commonwealth of Pennsylvania, for use of the Mayor, Aldermen, and Citizens of Allegheny, plaintiff below against St. Clair Denny, defendant below, upon a statement filed at No. 54, October Term, 1855, in said court, for the sum of $1129.95, with interest; being the amount of costs and expenses assessed upon defendant’s lot for grading Tremont street, in Allegheny City.

This was a bill in equity filed by Elizabeth E. Denny, on the 31st day of May, 1856, against Robert M. Brunson, in which the complainant alleged that she was the owner of a farm in Indiana township, Allegheny county, containing about 600 acres, and highly improved, on which were erected a mansion-house, a number of tenant-houses, a grist-mill, &c. She alleged that Brunson, ‘ sometime in the winter of 1856, had entered upon a portion of the farm and committed great damage, by…

This was an action of ejectment, brought by Andrew McClelland and Mary McClelland his wife, against Stephen Richards and Thomas Stentz, to recover about 8 acres of land, adjoining the town of Smithfield, in George township, Fayette county. The property in controversy in this suit was devised to Mary McClelland, by her father Robert Brownfield, by his will dated 30th January, 1815, which will was admitted to probate, March 15th, 1815.

This was a feigned issue, in which Bunn, Raiguel & Co., and others were plaintiffs, and Daniel Ahl, Sr., defendant, to determine whether a certain judgment confessed by Daniel Ahl, Jr., and George W. Ahl to the defendant in this case was collusive or not. Daniel Ahl, Jr., and George W. Ahl were sons of the defendant,' and commenced the retail dry goods business at Pittsburgh, in August 1855.

On the 24th October, 1855, Thomas Irwin, St. Clair Denny, S. Jones, and A. M. Marshall, presented their petition to the Quarter Sessions of Allegheny county, setting forth that, pursuant to an ordinance or resolution of the select and common councils of the said City of Allegheny, “ a street called Ridge street has been laid out from Irwin’s Avenue to the Ohio river in said city, and carried through in part the lands or lots of the undersigned, to their great damage…

<p>A verdict and judgment in favour of a garnishee, in an attachment execution, is not a bar to a recovery by another creditor against the same person, as garnishee of the same defendant.</p> <p>An attachment execution is not exclusively a proceeding in rein, but also a proceeding personally against the garnishee.</p>

<p>An attorney at law, as such, has no power to sell his client’s judgment, and his attempted sale of it will only bind the client when the act is ratified, or adopted by the receipt of the money, or otherwise.</p> <p>A subsequent purchase of a judgment, accompanied or followed by a transfer on the record, will pass the title to such judgment as against a prior purchase not entered of record, and of which the second purchaser had no notice.</p> <p>Where a third party pays the amount of a judgment against a defendant, with the intention of holding it for his own use, although no transfer is taken, it is not a payment and satisfaction of such judgment.</p>

This was action of assumpsit brought by James Leech, against the executors of George Collier, deceased, to recover for work and labour done by plaintiff for A. Leech, Jr. & Co., of which firm George Collier, in his lifetime, was a member. The declaration was in the common counts, in assumpsit — for work and labour done.

<p>An assignment of ehoses in action, without valuable consideration, designed ■ to take effect at the death of the assignor, and where such ehoses in action are not delivered until after the assignor has become insane, passes no title to the assignees.</p> <p>Such an assignment will be set aside, if it appear that it was made for the purpose of defrauding the wife of the assignor of the portion of his estate confirmed upon her by law.</p>

<p>Where a party recovers premises, by a verdict and judgment in ejectment, and is put into possession under the judgment in such action, the defendant cannot afterwards maintain an ejectment to recover compensation for improvements made while in possession, under the condemned title.</p> <p>If the party had such an equity, arising out of the circumstances connected with his claim and possession, as entitled him to compensation for improvements made, it did not constitute a title to the land, but merely an equitable lien, and a right to hold the possession until it was satisfied.</p> <p>Having failed to interpose it as a defence to an action of ejectment brought against him, and to have it enforced by means of a conditional verdict, he cannot afterwards make it the subject of an independent action.</p>

Error, to the District Court of Allegheny county. This action was brought by Alfred B. McCalmont against the County of Allegheny, upon the following case stated. “ It is hereby agreed that an amicable action shall be entered in the District Court of Allegheny County, at No. 858, November Term, 1857, between Alfred B. McCalmont, plaintiff, and the County of Allegheny, defendant, upon the following case stated, which is to be considered as a special verdict: “ That the…

<p>Error to the Common Pleas of Fayette county.</p> <p>■ This was a feigned issue directed by the Orphans’ Court to the Common Pleas, in which William Dennison and Mary his wife w.ere plaintiffs, and Henry L. Page and others were defendants, to determine whether Mary Dennison was an heir at law of Samuel Page, deceased.</p> <p>In a proceeding in partition by the plaintiff in error on the real estate of Samuel Page, deceased, in the Orphans’ Court of Fayette county, Mary Dennison, wife of William Dennison, claimed to be a legitimate child of the said Samuel Page, and asked to be made a party to. said proceedings. This the plaintiff in error denied — hence this issue. Samuel Page married Mary Shank, and three or four months afterwards the said Mary Dennison was born; Page instantly disclaimed being the father of the child, and she was ■ almost immediately removed to her grandfather’s, by whom she was raised, and that she was never recognised by Page as his child. On the trial of the cause the defendants offered to prove by Mrs. Page, the mother of Mary Dennison, and widow of Samuel Page, that she was begotten before and born about three months after her marriage with said Page, and that he was not her father, but that a man by the name of East was. To the admission of this testimony the plaintiffs objected — the court sustained the objection, and overruled the evidence.</p> <p>The defendants then offered to read those parts of the testimony of Anna McBride, Hannah Frances, and James Estep, taken on rules, which showed circumstances going to prove the illegitimacy of Mary Dennison. To all this testimony the plaintiffs objected— the court sustained the objection, and overruled the evidence.</p> <p>The defendants then offered to prove by circumstances that Mary Dennison was illegitimate, and was treated as such by her parents and the family. To that part of the offer of the manner in which the child was treated by her parents, the plaintiffs object, being incompetent as going to prove illegitimacy — the court sustained the objection, and overruled the evidence.</p> <p>The defendants then called Jonathan Newmyer and offered to prove what took place at the time of the birth of the child, that the child was taken to its grandfather’s immediately after birth, and had never been with its mother and her husband. Plaintiffs objected — the sustained the objection, and overruled the evidence.</p> <p>The court then directed the jury to return their verdict for the plaintiffs.</p> <p>The defendants thereupon took this writ, and assigned the rejection of the evidence as contained in the foregoing offers, for error.</p>

James McCracken died on the — day of July, A. D. 1852, leaving heirs four daughters, to wit, Mary Ann, Matilda, Sarah, and Clara; and three grandchildren, to wit, Mary Ann, Sarah E., and William J. Bell, children of a deceased daughter, Eliza, who, in her lifetime, was intermarried with James Bell, who is now the guardian of the three grandchildren; and having first made his last will and testament, letters of administration, cum testamento annexo, were, on the 3d day of…

Henry Fife, Charlotte Jones, and Monroe Stewart, were jointly indicted for the murder of George Wilson. The defendants being arraigned, the counsel of Monroe Stewart moved for a separate trial, which was refused by the court, but no exception appears to have been taken to this ruling at the time, nor was it noted regularly upon the record. The jury was impannelled as to all, and they severally pleaded not guilty.

John Lutz was arraigned for the murder of Richard O’Leary, upon the following indictment: — ■ That John Lutz, late of the county… Held: the said Richard O’Leary in and upon the left side of the back of him, the said Richard O’Leary, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto him, the said Richard O’Leary, then and there, with the said knife, by the stroke aforesaid, in manner aforesaid, in and upon the left side of…

<p>An assignment of error that the court refused to hear the prisoner by himself or counsel, on a motion in arrest of judgment, cannot be examined into in this court, there being nothing on the record to determine whether the fact is as stated in the specification of error.</p> <p>Passing sentence upon the defendant was a sufficient overruling and disposition of a motion in arrest of a judgment.</p> <p>A specification that the court erred in not arresting the judgment because of the insufficiency of the indictment, is bad for generality.</p> <p>Where the indictment charges that the prisoners were in the custody of the defendant, as the keeper of the common jail, at the time he voluntarily permitted them to escape, it is unnecessary to aver that he received them as such.</p> <p>It is not necessary to aver or prove that such keeper had knowledge of the guilt of the prisoners committed to his care, and voluntarily suffered them to escape.</p> <p>It is felony at common law in a keeper to permit the voluntary escape of a prisoner charged with felony, and there is no statute in this state changing such crime.</p> <p>Where the indictment and conviction was for permitting three prisoners respectively, charged with arson, counterfeiting, and larceny, to go at large, a sentence to five months’ imprisonment at hard labour in the county jail, and to pay a fine of §150, and costs of prosecution, is not an unauthorized judgment.</p> <p>The word “ hard,” qualifying labour, may be regarded as surplusage in such sentence.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>.This was an action of assumpsit by John McIntyre against Kennedy, Childs & Co., in which the parties agreed upon the following case stated in the nature of a special verdict.</p> <p>Kennedy, Childs & Co., the defendants above named, owed John McIntyre, plaintiff above named, a sum of money amounting to something more than two hundred dollars ($200).</p> <p>On the second day of January, A. D. 1855, the plaintiff went to the counting-house of the defendants, and asked for two hundred dollars of what they owed him. Mr. Strong, one of the defendants, paid him the amount with two cheeks; one of them drawn by Kennedy, Childs & Co. on H. Childs & Co. for one hundred and thirty-two dollars and ninety-four cents ($132.94), payable to the plaintiff or bearer; and the other described as follows, to wit:</p> <p>Pittsburgh, January 2d, 1855.</p> <p>No. 148. Hoon & Sargent, Bankers, pay to Kennedy, Childs & Co., or bearer, sixty-seven 6-100 dollars.</p> <p>$67.06 E. Eroweneield & Bro.</p> <p>These checks were paid to the plaintiff between the hours of four and six o’clock, on the second day of January, 1855. On the same evening (January 2d, 1855), the plaintiff paid the above-mentioned checks to John Dean, in full of a debt due by the said plaintiff to the said John Dean, for money loaned; and on the next morning (January 8d, 1855), Mr. Dean deposited the said checks in the Farmers’ Deposit Bank of Pittsburgh, and received credit therefor on his bank book.</p> <p>On the same morning (January 3d, 1855), the Farmers’ Deposit Bank sent a clerk to the office of Hoon & Sargent, with the second of the above-mentioned checks, in order to present it, and draw the money; but when he arrived at the office he found it closed, and learned that Hoon & Sargent had stopped payment about 11 o’clock that morning (January 3d, 1855).</p> <p>The Farmers’ Deposit Bank then returned the said second check before mentioned to Dean, Dean returned it to the plaintiff, who now wishes to recover sixty-seven T§-0- dollars (|67.06), the amount which the said check calls for from Kennedy, Childs & Co., defendants.</p> <p>If, on this statement of facts, the court shall be of opinion that the defendants are liable to the plaintiff for the amount of the said check, then judgment for the plaintiff for sixty-seven dollars and six cents, ($67.06), with interest from the third day of January, 1855. If, on the contrary, they shall be of opinion that the defendants are not liable to the plaintiff for the amount of the said check, then judgment for the said defendants.</p> <p>The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.</p> <p>April 26, 1856, the court on this case stated enters judgment for defendants, and against the plaintiff.</p> <p>The plaintiff thereupon purchased this writ, and assigned that the court erred in entering judgment on the case stated in favour of the defendant.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>This was an action on the case by R. & J. Watson against David Holmes and others, late owners of the steamboat “Latrobe,” to recover damages for the sinking of two coal boats, with their cargoes. The plea was, Not guilty, and a verdict and judgment were rendered in the court below in favour of the plaintiffs for $1865.72.</p> <p>The facts of the case, and the points ruled below, sufficiently appear in the opinion of this court, delivered by Chief Justice Lewis.</p>

<p>Wherever a plaintiff seeks to make one man liable for the debt of another, the ease must be clearly proved: and every ambiguity in the evidence weighs in favour of the defendant.</p> <p>A letter addressed by one man to another, requesting the latter to furnish a third party with certain goods, is in the nature of an offer to guaranty the debt of such third party, and not an original undertaking of the writer for the payment of goods furnished to himself.</p> <p>To make the writer liable upon such a letter, it is essential that the plaintiff should accept and give credit on the faith of the letter, and equally necessary that the guarantor should be notified of such acceptance, otherwise there is no contract.</p>

<p>Constructive contracts are fictions of law adopted for the purpose of enforcing legal duties by actions ex contractu, where no proper contract exists, express or implied.</p> <p>Implied contracts arise under circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intention to contract.</p> <p>Express contracts are, where the terms of the agreement are openly uttered and avowed at the time the engagement is entered into.</p> <p>Where a son continues in the employ of his father, after his majority, the law implies no contract on the part of the father to pay the son for his. services, the position of the parties being accounted for by the relation existing between them.</p> <p>Where the father, after the son has been in his employ many years, declared to witnesses that he intended to pay his son for his work, it is not evidence of the existence of a contract for wages between the parties, and it is error to permit the jury to infer a contract from such declarations.</p> <p>Money belonging to a married woman, and lent by her or her husband or by both to a third party, before the Act of 11th April, 1848, may be sued for by the husband without joining his wife in the action.</p>

This was an action of ejectment by Grace Lonergan against • James Fenlon, to recover 80 lots in the Sixth Ward of the city of Pittsburgh. The plaintiff claimed under Kennedy Lonergan, by virtue of proceedings in bankruptcy had in the District Court of the United States for the district of Ohio, on the application of Lonergan. His petition was presented the 20th December, 1842, and, inter alia, contained a description and return of the property in dispute.

This was an action of assumpsit brought by William S. Thompson, for the use of James McGuffey against Arthur H. McClelland, to November Term, 1854, on the following due-bill. “ Due William S. Thompson, one hundred and ninety-four T85% dollars. “ Á.

This was an action on the case for malicious prosecution brought by Fanny Barrett against Philip Graff for malicious prosecution. On the 9fch May, 1855, Graff made an information against the plaintiff, charging her with having obtained goods from him to the value of sixty dollars, by fraudulently representing that she was the owner of a house and lot in the city of Pittsburgh, and a farm in the county of Allegheny.

<p>The certificate of discharge granted to a bankrupt by a federal court, under the Act of Congress of 19th August, 1841, is a complete and conclusive discharge from all debts existing prior to the application, unless the same shall be impeached for some fraud, or concealment of his property by the bankrupt, contrary to the provisions of the act.</p> <p>When a certificate of discharge is so impeached, any other court, in which the question may arise, possesses the same power to try the impeachment, as the court decreeing the bankruptcy possessed to try the right to the certificate.</p> <p>The same fraud or concealment of property, which would, if interposed, have prevented the bankrupt court from decreeing a discharge, will render the certificate unavailing as a discharge from prior indebtedness, when subsequently shown in a state court.</p> <p>On a trial of a cause, in which the bankrupt certificate is set up as a discharge from the debt by the defendant, and impeached for fraud and concealment of property by the plaintiff, the proceedings of the bankrupt court, under which certain real estate alleged to be fraudulently omitted from the schedule by the bankrupt, was sold by the assignee, — an ejectment against the defendant in possession by the purchaser at such sale, and a compromise made of the case are evidence, as part of the res gestee.</p> <p>It is not a valid objection to the proceedings in the federal court, that the assignee set forth in his petition, on an order to sell, that “ he had been informed” that the bankrupt had an interest in the premises, and that he did not expressly aver that he had such interest.</p> <p>Such proceedings were not evidence of the title of the bankrupt, but, in connexion with other competent evidence, were circumstances to be submitted to the jury, on the question of fraud and concealment of his property.</p> <p>Where a deed of real estate was made in fraud of creditors, prior to the passage of the bankrupt act, and such estate omitted from the schedule, the fraud upon the act consisted not in making the deed, but in omitting to return the property.</p> <p>Any concert or collusion between parties to a fraudulent transaction, makes the declarations of one evidence against the other; and it is not necessary that the person whose declarations are offered should have been a party to the original concoction of the fraud, if he, after full knowledge that it was committed, attempts to reap the benefits of the fraudulent transaction.</p> <p>Although the court below erred in the admission of evidence, if, in the charge, the judge gave such cautionary instructions to the jury in regard to it, as renders it reasonably certain that the jury did not base their verdict upon it, this court will not reverse on account of its introduction.</p> <p>A party who seeks to reverse a judgment, for the introduction of evidence, must show not only that the evidence was erroneously received, but that it influenced the verdict against him.</p> <p>In cases of fraud, where the precise question litigated depends upon a view of the whole evidence, the whole volume of proof should be brought up, and spread before the court on the paper-book. Per Woodward, J.</p>

<p>Error to the Common Pleas- of Clarion county.</p> <p>This was an action of ejectment by William B. Workman and James C. Workman against James W. Guthrie and others, to recover the two undivided third parts of seven hundred acres of land in Clarion county. James Hannegan was the owner in fee of the land, and on the 4th June, 1831, by articles of agreement sold the same to Samuel Walters in fee for the sum of $654. Walters, on the 10th of September, 1832, assigned his interest in the land to William B. Workman, James C. Workman, and Edmund Workman, for the sum of $700.</p> <p>The Workmans entered into possession, paid the purchase-money to Walters and Hannegan, but no conveyance was made to them by Hannegan. The Workmans erected a saw-mill, dwelling-house, and storehouse upon the premises, and carried on lumbering operations and mercantile business in partnership until some time in the fall of 1832, or 1833, when James C. Workman left, having sold out his interest, as was alleged by the defendants, to his brother Edmund, and went south, to pursue his profession, he being a physician. After this time the operations were carried on in the name of W. B. & E. Workman, until November, 1842, when the partnership was dissolved, and William B. Workman removed to Philadelphia. Edmund continued the business, alone until some time in 1843. '</p> <p>In 1842, Wilson & Barber, and William H. Lowry, had respectively recovered judgments against W. B. & E. Workman, amounting together to about thirteen hundred dollars. Fieri facias was issued upon each of those judgments, the premises in dispute levied upon, the same condemned, and venditioni exponas was then issued in each case, in May, 1843, with directions to sell as soon as legal notice could be given. While these executions were pending, and the property advertised for sale by the sheriff, an arrangement Avas made by which Guthrie, the defendant, paid off these judgments, Avent into possession of the property, and on the 17th June, 1843, by a deed from which the Avarranty and the seals were erased, it was conveyed to him by “ W. B. & E. Workman, per E. Workman.” And a paper, without date, signed in the same way, was given him, containing a recital of the sale to Guthrie on the day of its date, in consideration of $1400, a description of the property, and an order to Hannegan to make the conveyance to Guthrie. Hannegan aftenvards, on the 19th day of August, 1847, conveyed to John M. Fleming, and the latter, on the 25th October, Í848, conveyed the same to James W. Guthrie, one of the defendants.</p> <p>The defendants proved, on the trial, that in the fall of 1832, or some time in 1833, James C. Workman made a parol sale of his interest in the premises to his brother Edmund. The proof in reference to that fact, consisted of the repeated declarations of James to various persons, sometimes made in the presence of Edmund, and other occasions in his absence. His declarations also showed that he had received the consideration, the amount of which was not definitely stated by any of the witnesses. After making this sale to Edmund, James left that country, and never returned, the business after that being conducted by W. B. and Edmund, the latter claiming two-thirds of the real estate, and William one-third.</p> <p>The defendants also proved, by a large number of witnesses, that William B. Workman was active in making the arrangement and bargain with Guthrie, in 1843; that he had agreed with him as to the price, and was at the premises when Guthrie went into possession; and that afterwards he expressed hims.elf fully satisfied with the arrangement, and the price paid. And several witnesses testified to his declarations, that he had given a Avritten authority to his brother Edmund to convey the premises.</p> <p>The defendant also showed that he, and those claiming under him, had made improvements, since 1843, on the property, to the amount of $20,000.</p> <p>These same parties brought an action of ejectment for the same premises in December, 1853, and on the 4th of September, 1854, suffered a nonsuit. The present suit was brought to May Term, 1855. William H. Lowry testified on behalf of the plaintiffs, that he “had a survey made of the land for the Workman family in 1854, or in the fall of 1853. That before that time he* made an entry to forbid the cutting of timber upon the land. That this was before the first suit was brought, in 1853. That he- forbid Benjamin Davis, one of the present defendants. That he- made this entry as the agent of the Workmans, and that he had a letter and a power of attorney from them.”</p> <p>The power of attorney alluded to by the witness was from William B. Workman, and H. Wier Workman, attorney for James C. Workman, administrator of the estate of Edmund Workman, deceased, and was dated and acknowledged the- 6th day of May, 1853. Edmund Workman died about 1849.</p> <p>The counsel of the plaintiffs presented the- following points: — -</p> <p>1. That the paper title, given in evidence- by the plaintiffs, is sufficient to entitle them to recover, unless- the defendants have shown a better title.</p> <p>2. To entitle the defendants to the interest of James C. Workman, under the statute of limitations, they must prove that he was ousted, or turned out of the possession of the land by his brothers, or one of them, and that'the land has been notoriously held by the defendants, or by 'those under whom they claim, hostilely and adversely to James, for twenty-one years before suit brought..</p> <p>3. To prove the holding of Edmund and William Workman, or of either of them, hostile and adverse to the rights of James 0. Workman, the defendants must either show a distinct and notorious taking possession by Edmund and William, or either of them, claiming to hold adversely to James, or they must prove some clear, positive, and unequivocal act, amounting to an open and notorious denial of James’s right, showing an intention to turn him out of the possession.</p> <p>4. The fact of James C. Workman going away from the land, leaving his brother in possession, and in receipt of the profits, is not alone sufficient evidence of ouster by his brother. Eor they being tenants in common, the possession of Edmund was in law the possession of James, and his receipt -of the profits the law presumes to have been also for the equal benefit of James C. Workman, and the holding of Edmund Workman under such circumstances could not be considered hostile and adverse to James.</p> <p>5. If the jury believe that James C. Workman did not cease to reside on the land in dispute until the year 1833, the bringing of an ejectment by the plaintiffs in the year 1851 stopped the operation of the statute, even should the jury believe that James had been turned out of the possession by his co-tenant or other person, and his title is not barred by the statute of limitations.</p> <p>6. To establish such a parol sale from James to Edmund Workman as would not be within the statute of frauds, the defendants must prove by clear, unequivocal, satisfactory, and indubitable proof, what the contract of sale was, what land was sold, the conditions of sale, the price, and when it was to be paid, and that the price was paid. They must also prove clearly and unequivocally that Edmund Workman took exclusive possession in consequence of, and in pursuance of the contract. If Edmund was in possession at the time of the alleged parol sale, and continued in possession afterwards, this would not be sufficient proof of taking of possession under and in pursuance of the contract.</p> <p>7. The sale of the land in dispute to James, William, and Edmund Workman, made them tenants in common of the land, and not partners; land is held in partnership where a partnership is formed for that purpose, or where land has been conveyed to an existing firm as partners.</p> <p>8. The sale by Edmund Workman to James W. Guthrie, in June, 1843, did not convey William’s interest, unless he was authorized by William, by a written instrument, to sell, or unless William subsequently ratified the sale -by a written instrument; or unless William, knowing of the' sale, was present when Guthrie took possession, and assented to it and expressly ratified the contract.</p> <p>9. There is no legal evidence that William Workman, before June, 1843, authorized Edmund to sell his interest in the land in controversy.</p> <p>10. Before the jury can find that William ratified the sale, or is equitably estopped from now disputing it, they must be satisfied beyond a reasonable doubt, that subsequently to June, 1843, William Workman has, by some clear and unequivocal act, assented to, and joined in carrying the contract into effect.</p> <p>11. To establish such á parol sale from William to Edmund Workman as would not be within the statute of frauds, the defendants must prove by clear, unequivocal, satisfactory, and indubitable proof, what the contract of sale was, what land was sold, the conditions of sale, the price, and when it was to be paid, and that the price was paid. They must also prove, clearly and unequivocally, that Edmund Workman took exclusive possession in consequence of and in pursuance of the contract; if Edmund was in possession at the time of the alleged parol sale, and continued in possession afterwards,, this would not be sufficient proof of taking of possession under and in pursuance of the contract.</p> <p>12. Though the declarations of James C. Workman, William B. Workman, and Edmund Workman, as to the alleged parol sale, are evidence, yet they áre a most unsatisfactory species of evidence, on account of the facility with which they may be fabricated, and the difficulty of contradicting them; besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.</p> <p>13. The evidence submitted by the defendants is not of that clear, unequivocal, indubitable, and satisfactory nature required by the law to take the alleged parol sale of James to Edmund, and of William to Edmund Workman, out of the operation of the statute of frauds and perjuries.</p> <p>14. The burthen of proof is on the defendants, and it lies on them to prove their case by clear, unequivocal, and satisfactory evidence; if on the whole case the jury feel doubtful where the truth lies, their verdict must be for the plaintiff.</p> <p>15. If Fleming purchased from Hannegan, without paying money for the land, and the receipt in the deed is not proof of payment, he is not a purchaser for a valuable consideration without notice, and the deed from Hannegan to Fleming, and from Fleming to Guthrie, cannot affect the plaintiff’s right to recover in this suit.</p> <p>16. Improvements made with knowledge of a bad title, or after suit brought, cannot in any way affect the plaintiff’s right to recover in this action.</p> <p>And the counsel for the defendants requested the court to charge the jury:—</p> <p>1. If the jury believe that in the fall of 1832, or in the year 1833, James C. Workman made a parol sale, and surrendered his interest in the land in question to his brother Edmund, who took possession in pursuance thereof, and maintained it undisturbed until he sold to Guthrie, in 1843, making valuable improvements; and that Guthrie then succeeded to the exclusive possession, and has maintained it ever since, making large improvements, then the contract is so far executed as to divest the title of James C., and he cannot recover.</p> <p>2. That if, before James C. Workman left the country, he declared he had sold to Edmund, and surrendered or abandoned the possession of the land, which was immediately taken by Edmund and has been maintained by him and his grantees for a period of over twenty-one years before the commencement of this suit, claiming and using it as their own, making valuable improvements thereon, and receiving all the profits therefrom, the jury may presume a grant, and the statute of limitations would bar the recovery of this share by James C.</p> <p>8. If the jury believe that William B. Workman advised and authorized his brother Edmund to sell his interest in the land in question, or being advised of his having done so, approved and ratified said sale; that Guthrie paid the consideration, which was received by or passed to the credit of William, with his knowledge and approval; that Guthrie took possession of the same with his knowledge and consent, and has maintained it by himself, and those claiming under him, ever since and for ten years thereafter, without claim or molestation on the part of William, making extensive and valuable improvements thereon upon the faith of such authority or ratification, then it would be inequitable and unjust to permit William, at this late day and under these circumstances, to disaffirm the sale; that it is relieved from the prohibitory operation of the statute of frauds, and the plaintiff is not entitled to recover.</p> <p>4. That a sale by an agent, acting under a parol authority, if subsequently approved and ratified by the principal, and followed by such possession and improvements by the vendee, as are necessary to give validity to a parol sale, possesses all the force and binding efficacy of a parol sale made directly by the principal himself.</p> <p>5. If the jury believe that W. B. gave to Edmund a written authority to sell his interest in the property, which has been suppressed, mislaid, or kept by Edmund (since deceased), and lost, the plaintiffs cannot recover.</p> <p>The court below (McCalmont, P. J.) charged the jury and answered these points as follows:—</p> <p>“ The defendants claim first under an alleged parol sale by James C. Workman, of his one-third, to Edmund his brother, made as early as 1832 or 1833, and possession taken by Edmund in pursuance of the sale and improvements made; and a written sale made by Edmund to James W. Guthrie in 1843, and possession maintained by Guthrie and improvements made, and money expended on the faith of the contract until the commencement of this suit.</p> <p>“James C. Workman being a tenant in common with his brothers, William and Edmund, the sale of his undivided part to Edmund would be subject to the same rules, and as much within the provisions of the statute of frauds, as a sale of an entire interest to a stranger. The statute requires the contract to be in writing; if not in writing the evidence of it must be clear — it must be satisfactory, and not doubtful. The evidence should show it so that a deed could be made, describing the vendee, the land by its metes and bounds, and the quantum of estate conveyed. The possession must have been taken by Edmund in pursuance of it, and exclusively maintained. Now, as to this, what was the contract between James and Edmund ? Was there an absolute sale ? At that time, it appears, the deed from Hannegan was not obtained, nor were the notes due. The evidence consists of the declarations of James 0., that he had sold to Edmund; that he then left the country, and has not been here since; that Edmund claimed two-thirds, and William B. one-third; that the business was carried on by William B. and Edmund, as partners, until the sale to Guthrie.</p> <p>“ If there was a sale by James to Edmund, we think it would be unnecessary, at this distance of time, to establish the exact amount of the money or consideration which was to have been paid by Edmund to James C., provided the evidence satisfies you that whatever it was, it was paid at the time. I am aware, gentlemen, that this may be a point of some doubt; but where there has been a parol sale proven in all other respects, except the exact amount of money which was to have been paid for the land, the uncertainty in that respect, after the lapse of twenty years, would not defeat the contract, if the evidence shows that the consideration was paid at the time of the contract.</p> <p>“ The parties held the land under an equitable title, derived from Hannegan through Walters. Does the evidence satisfy you that there was a contract between James and Edmund, that the right of James should be transferred to Edmund, and that the consideration was paid ? If it does, and Edmund took possession and maintained it in pursuance of the contract, and made im- . provements on the land, and Guthrie afterwards, up to the commencement of this suit, the contract would be taken out of the statute of frauds. It would be manifestly unjust to rescind the same. It is for you to say whether there was such a contract; you ought to be clearly satisfied of it from the evidence. Your mind should not be left in doubt upon the subject. The declarations of James, his manner of leaving, his continued absence, the nature of the business they were engaged in, the kind of title which they held, are all proper to be taken into consideration, in weighing the evidence of the contract afforded by his declarations.</p> <p>“ The declarations of a vendor are, of themselves, an unsatisfactory species of proof, to be cautiously taken unless made under solemn circumstances, clearly proven, and accounting for not making a written sale. Doubtless the jury would require stronger evidence of a parol sale made by a lawyer in bis office, with pens, ink, and paper about him, than by one unacquainted with law, and where the interest is thought to be of little value, and the solemnities of a written contract dispensed with on account of the suddenness of the movements of the party. Had James C. Workman remained, it would have been singular if his contract had not been reduced to writing, or a written transfer made of the Walters and Hannegan agreement. You, gentlemen, 'are to weigh the evidence. At this distance of time, I cannot, as requested by the plaintiff, tell you that, if all be believed, there is not sufficient proof of a parol contract. But, whether the evidence is credible, or, if so, whether it leaves any doubt as to the existence of the contract, the terms of it, or the payment of the purchase-money, are questions entirely for you. You are the judges of thé evidence and the credibility of the witnesses. You have to find the facts.</p> <p>“ If you find the facts to be, that James made sale of his interest in the land, described in the writ, which they were in possession of, to Edmund, and that he (Edmund) took and maintained possession of it in pursuance of the sale, and paid the consideration-money, then we are of opinion it would be a valid contract so far, executed by the taking of possession, the lapse of time, and making valuable expenditures of money and labor on the faith of it, as to take it out of the requirements of the statute of frauds and perjuries.</p> <p>“ Again — if the contract be not proven clearly in all respects, as to all its requisites to make it a binding contract, yet, if there was a claim then made by Edmund of James’s share, and actual possession maintained exclusively, notoriously, and in hostility to the claim of James, for a period of twenty-one years, it would confer a good title as to James’s share of the land. An entry by James, or by an authorized agent, to survey the land, would be sufficient to stop the running of the statute. Did Lowry make a survey ? If so, was he the agent of James, and did he make the survey within twenty-one years from the commencement of Edmund’s claim ?</p> <p>“ Then, if James C. Workman’s title be not conveyed by a valid parol sale, as we have explained, or by the statute of limitations, it would be your duty to find for him, to the extent of his interest, one undivided third; but, if otherwise, the defendants would be entitled to your verdict for this part.</p> <p>“ Then, as to Edmund’s share, that is not in dispute in this suit. The action has not been brought for it. It is admitted to have passed by the conveyance to Guthrie. But, it is said, that the conveyance to Guthrie, purporting to be signed by Edmund as the agent of William, is inoperative to convey William’s interest— Edmund not being authorized by writing. That, gentlemen, is the law, if such be the facts. The authority of Edmund, as agent of William, must have been in writing; otherwise he had no power to convey, by writing, William’s interest. If there was a written authority to convey, it would be otherwise. There is some evidence of it. Is it credible or satisfactory ? — this is for you. There were two witnesses spoke of it, William Taylor and Mix — the credibility of the latter has been attacked. A party must support his cause by credible witnesses. Do you believe the testimony of Mix ? Some witnesses said hi's character was not good; others said they had not heard anything against it. The probabilities of his evidence, from his position and calling, have been commented on. McNaughten said he had no boat there, and never built but one. Reed said he had built two or three. Then, was it probable that Workman would call on him to sign as a witness? When he refused, why did they not get some other to 'sign it ? Then, if there was no writing from William to Edmund, was there a sale by William to Guthrie, or a parol authority from William to Edmund to sell to Guthrie, and an actual sale made and possession taken by Guthrie in pursuance of the contract ? There appears to be no dispute as to the possession being taken by Guthrie, a.nd improvements made from 1843 to 1853. If there be the requisite proof of a contract of sale proven as to its extent and terms, or a parol authority by William to Edmund to make the sale; then, if the consideration was paid by Guthrie, and expenditures on the land as testified by Beman, we are of opinion that it would be unjust to rescind it. Because no action could be maintained by Guthrie, to recover compensation. He could not be compensated in damages. The statute of limitations would be interposed as a bar to his recovery. The work and labour he has expended— perhaps, for a time, fruitless — would not admit of compensation; the law would not estimate it.</p> <p>“ It may be' said, that if a vendee in parol would allow the time to elapse in which he could bring an action for damages, that it would be his own fault, and that he ought to suffer. But the principles of our decisions are otherwise. He has the contract, on which he relies; not a valid contract to transfer the land, but binding in honour and conscience. He is allowed to take possession and to keep it, in pursuance of the contract. It is the business of a vendor in such a contract not to remain silent. His silence would be a fraud which the statute would not protect, if he remains silent so long that improvements be made, or that labour and money have been expended by the vendee on the faith of it, for which no compensation has been had or tendered, or can be obtained in law.</p> <p>“ In reference to this contract, or whether William was a party to it, you can take into consideration the facts of the judgments against the Workmans, They were obtained in 1842. The plaintiffs in them were pressing the sale of the land. In 1842, according to the plaintiffs, William left, and the partnership ceased. William was aware of the judgments, confessed them, and it does not appear that he made provision to pay them. He left the country, and the judgments still remaining. The sales were stopped; the judgments satisfied by the plaintiffs at the instance of Guthrie, and a written conveyance afterwards made by Edmund to Guthrie. The liens of the judgments were discharged. If done at the request of Edmund, recovery could have been had, within six years, against the parties, for the money paid by Guthrie on the rescission of the contract. Yet these judgments might have been paid and satisfied without the authority of William. If he made no sale to Guthrie, nor authorized Edmund to make the sale, Guthrie’s payment of the judgments was in his own wrong; he could only get Edmund’s title, and William’s title would remain good.</p> <p>“ But, it is competent for you to take into consideration the facts connected with these judgments, the payment of them, and the lapse of time, in weighing and estimating as to the effect of the evidence in proving a sale from William to Guthrie, or an authority from William to Edmund to convey.</p> <p>“ Again — if William, with knowledge that Edmund had sold his (William’s) interest to Guthrie, assented to the payment of the judgment by Guthrie, as part of the consideration, and allowed Guthrie to take possession and make valuable improvements, it would be such a ratification of the bargain as would estop him from recovering here. But, if William did not authorize the sale by Edmund, or did not sell to Guthrie, or with knowledge of the sale ratify it, it would be otherwise; William would be entitled to recover his share.”</p> <p>The learned judge then proceeded to answer the points presented by the counsel for plaintiffs and defendants, as follows:—</p> <p>“ 1st point of plaintiffs answered in the affirmative.</p> <p>“ 2d point answered in the affirmative.</p> <p>“3d point. We answer this substantially in the affirmative. But it was not necessary for them to say that they had turned James out of possession, or even expressly to say that they would keep him out of possession. If they kept the possession, and Edmund claimed his share, and he and William occupied the land and carried on the business under such a claim, and James never interfered in the business; if he left with declarations that he had sold to Edmund, and never came back to the country afterwards, it would be sufficient evidence from which an ouster of James might be presumed.</p> <p>“ 4th point answered in the affirmative.</p> <p>“ 5th point answered in the affirmative.</p> <p>“ 6th point. This point is generally correct, and is answered in the affirmative, with this qualification, that it was not necessary there should have been an actual change of possession on the part of Edmund. If he was already in possession as a tenant in common with James, and if James delivered up to him the possession of his undivided interest, giving Edmund the actual possession and enjoyment of it, it would be sufficient.</p> <p>“ 7th point answered in the affirmative. But we cannot see what difference it makes in this case as to the principles of law applicable to it.</p> <p>“8th point answered in the affirmative, with this addition to it, viz.: ‘ Or, unless there was a valid parol authority to Edmund, so far executed as to take the contract out of the statute of frauds, as we have explained in other parts of the answers and charge.’</p> <p>“ 9th point answered in the negative.</p> <p>“10th point answered in the affirmative, with this addition:</p> <p>‘ Or unless he expressly ratified it by his words.’</p> <p>“ 11th point answered in the affirmative.</p> <p>“ 12th point. We do not consider this a point of law. These reasons operate upon the judges to hold a tight rein over the proof of parol contracts relative to land, and are worthy to be considered by the jury in sifting the evidence. It is proper for the court to admonish a jury with them in the particular cases, as they may arise and be worthy of them. But almost every case is peculiar to itself. The declarations of parties, if loose and not clearly proven, are unsatisfactory. But if made solemnly, with a full view of the consequences of them, intentionally and perfectly understood by the persons hearing them, and perfectly remembered by them and honestly related, may be very satisfactory. With these remarks we assent to the point, as propounding cautionary rules for the jury in weighing the evidence of the contract. But we refuse to answer it as a point of law.</p> <p>“ 13th point answered in the negative.</p> <p>“ 14th point answered in the affirmative.</p> <p>“ 15th point answered in the affirmative.</p> <p>“ 16th point answered in the affirmative.</p> <p>“ 1st point of defendants answered in the affirmative.</p> <p>“ 2d point answered in affirmative, if the facts be so, as qualified by our answer to the plaintiffs’ 5th point.</p> <p>“ 3d point answered in the affirmative, if such be the facts.</p> <p>“ 4th point answered in the affirmative.</p> <p>“ 5th point answered in the affirmative.”</p> <p>The jury found for the defendants, whereupon the plaintiffs sued out this writ, and assigned the charge of the court and the answer to the points for error.</p>

This was an appeal from the decree of the Orphans’ Court of Armstrong county. D. Phelps,. Esq., was appointed auditor, and made the following report:— John Bradford, the intestate, died in Franklin township, in this county, on the 22d of August, 1855, leaving a widow, the accountant, and collateral heirs, to wit: one brother, Samuel Bradford, the exceptant, and children of Eleanor Bonner, deceased, who was a sister of the intestate. John Bradford left no issue.

<p>By the spirit and true meaning of the amendments of 1850, to the Constitution, providing for the election of judges, the first Monday in December is made the terminus a quo and ad quern of j udicial commissions.</p> <p>The commissions of the judges of the Supreme Court, both as to the special tenures assigned to the first five judges, and the general tenures of fifteen years of the subsequently elected ones, are to be computed from the first Monday of December next succeeding their election, to the first Monday of December in the year of their limitation.</p> <p>Hence, the commission of Chief Justice Lewis being for six years from the first Monday in December, 1851, falling upon Van first day of the month, would not expire until the first Monday in December, 1857, which was the seventh day of that month.</p>

This was an action of replevin by Rowland Cromelien, and Amelia his wife, against Henry Dewitt and Archibald Brink, brought 10th April, 1854, for 216 oak logs, 88 pine logs, 1300 railroad ties, 65 pieces of ship timber, and 248 cords of bark, of the value of $1166.50. The sheriff returned, replevied, and upon a claim property bond given, property redelivered to defendants.

<p>Error to the Court of Common Pleas of Lehigh county.</p> <p>This was an action of covenant by Benjamin Rupp against The Mutual Eire Insurance Company of Sinking Springs, in Berks county, on a policy of insurance. The defendant is a corporation chartered in 1843, and organized on the mutual plan, each insurer being a member of the corporation. Its corporate powers are vested in a board of thirteen managers, who are elected annually. The company has no capital stock, but defrays all expenses and losses by assessments on the members. By the seventh section of the charter, “ any member who shall sustain loss by fire shall give immediate notice to the president of the company, who shall appoint a committee of three of the managers, that shall examine and inquire into the same; and the said managers, with all convenient expedition, shall inquire into the same, and after ascertaining the sum which said party shall be lawfully entitled to, shall make provision and payment as specified.”</p> <p>On the 1st November, 1850, the plaintiff caused his dwelling-house to be insured in this company, in the sum of $1000, furniture therein at $600; and on th,e 20th October, 1854, the house, with a part of its contents, was consumed by fire. Information of the fact was communicated to the company, and on the 21st of the same month, the president appointed a committee of three managers, under the seventh section of the charter above quoted, who met on the 24th of the same month on the premises. The committee adjourned to meet in Reading, at the annual meeting of the company, on the 1st Monday of November, 1854. The plaintiff did not attend this adjourned meeting, and on the 15th November, 1854, the committee again met at his residence to ascertain the loss. They made a report to the president, by which they award “the sum of $1000 for the loss sustained, to wit: the sum of $500 for the buildings, and the sum of $500 for the household goods and kitchen furniture, &c., therein destroyed, and direct the treasurer to pay the said amount to the said Benjamin Rupp, or his assignees, &c., out of the funds received from assessment No. 8, now to be levied by the company to meet this, with other losses lately sustained by members of the said company.” The plaintiff, claiming that his loss greatly exceeded the amount reported by the committee, refused to receive the same; and the company refusing to pay any greater sum, this action was brought.</p> <p>On the trial in the court below, the plaintiff, under objection, gave evidence by witnesses of the value of the buildings destroyed.</p> <p>The defendants presented, among others, the following points:—</p> <p>That the power of ascertaining the amount due to the plaintiff for the loss which he sustained 'by the fire of October, 1854, is by the charter vested in the committee of three of the managers, who wrnre appointed by the .president for that purpose; that their decision, when made in accordance with the charter, is binding on both parties, and that from it there is no appeal.</p> <p>The court below answered this point as follows:—</p> <p>“ The important point in the case is the 2d point presented to the court by the defendant, namely, that the ascertainment of the loss by this committee, if in accordance with the charter, is binding and conclusive on the plaintiff. There is no provision in the 7th section that it is to be binding and conclusive; and I am of opinion that the power given to a committee to examine, and to the managers to inquire and ascertain, was for a different purpose than to make the ascertainment conclusive on both parties. I do not think, therefore, that this 2d point of defendant is well taken, and I answer it therefore in the negative.</p> <p>“ But although this ascertainment of the loss is not binding and conclusive, the report of the committee and the testimony of its members are before you, and if you consider their estimate of the damages sustained by the plaintiff the correct one, you have the right to adopt it.”</p> <p>The jury found for the plaintiff $1776.50, and judgment was entered on the finding.</p> <p>Thereupon the defendants sued forth this writ, and assigned, inter alia, the answer of the court to the above stated point for error.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action brought by Messrs. Raymond and Fullerton against Edward and Charles Middleton, on a promissory note of which the following is a copy:—</p> <p>Philada., 2d Mo., 22, 1858.</p> <p>$2600.</p> <p>On the 10th day of December next, for value received, I promise to pay to John W. Middleton twenty-six hundred dollars, payable and negotiable without defalcation at the Kensington Bank.</p> <p>Signed Middleton & Co.</p> <p>Endorsed, John W. Middleton.</p> <p>Pay to order of Charles Abert.</p> <p>R. J. Walker,</p> <p>Charles Abert.</p> <p>Pay to order of C. F. Yerkes, Cash’r.</p> <p>J. Hockley,</p> <p> Cash’r. </p> <p>The note, at maturity, was duly presented for payment, and dishonored.</p> <p>The jury rendered a verdict for the plaintiff, subject to the following reserved point:—</p> <p>Can the plaintiffs, as holders of the said note, maintain an action thereon against the defendants in their own name ? If they can, then judgment is to be entered on the verdict in favour of the plaintiff. If not, then the plaintiffs are to be nonsuit.</p> <p>And afterwards, on consideration of the said reserved point, the learned judge decided the. same in favour of the plaintiffs, and directed judgment to be entered for them, which was done.</p> <p>Specifications of error. — 1. The court erred in entering judgment in favour of the plaintiff on the point reserved.</p> <p>2. The court erred in refusing to enter judgment of nonsuit on the point reserved.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Daniel Stonemetz against the Accommodation Loan and Saving Fund Association.</p> <p>Daniel Stonemetz was a member and director of the loan association, and was elected one of the committee on short loans, and chosen chairman of said committee.</p> <p>The duties of the committee on short loans were to inquire into the character of the persons desiring loans, and the sufficiency of the securities offered for loans. The chairman was elected every six months.</p> <p>Stonemetz was elected chairman in March, 1854, and re-elected several times, serving for two years. The duties of the committee were chiefly performed by Stonemetz, and were quite laborious. "When Stonemetz took the office of chairman there was no salary attached to it, nor did any of the other officers of the association receive any salary or compensation, except the secretary.</p> <p>On the 6th of September, 1855, the following resolution, on which the plaintiff bases his claim, was passed by the association:—</p> <p>“ Resolved, That the salary of the chairman of the committee on short loans be two hundred dollars annually, from the commencement of the association, and that an order be drawn for the amount, and that hereafter his salary be paid quarterly.”</p> <p>This resolution was offered in evidence by the counsel of Stonemetz, and also the following order of the secretary of the association, made in pursuance of the above resolution.</p> <p>“ Philadelphia, September 10, 1855.</p> <p>“ Mr. George M. Kinsler, Treasurer of the Accommodation Loan and Saving Fund Association, please pay to D. Stonemetz, or order, the sum of three hundred dollars, by order of the board of directors. $300.</p> <p>Attest, Jacob C. Munch,</p> <p> Secretary.” </p> <p>To the admission of the order the defendants below objected, objections overruled, and defendants’ counsel excepted.</p> <p>The defendants below asked the learned judge to nonsuit the plaintiff. This the learned judge refused to do.</p> <p>The defendants below then offered in evidence the following resolution of the association, passed September 13, 1855, being the next meeting after the one which passed the resolution to pay Stonemetz :—</p> <p>“ September 13, 1855.</p> <p>“ On motion it was resolved, that so much of the minutes of September 6, 1855, as relates to the salary of the chairman of the committee on short loans, be, and the same is hereby, reconsidered.</p> <p>“ On motion it was resolved, ‘ That the resolution be referred to a committee of five, to report at next meeting on the state of the association.”</p> <p>There was no evidence offered by the plaintiff of a demand having been made by him for the amount of the salary. The learned judge charged the jury under the evidence: That they might render a verdict in favour of the plaintiff for his services from March 6, 1854, till September 6, 1855, at the rate of $200 per annum, according to the resolution of defendants of that date, and that plaintiff was entitled to interest thereon, and was not entitled to payment for the six months following September 6, 1855.</p> <p>A verdict and judgment having been rendered in favour of the plaintiff, the defendants took this writ, and assigned for error that the court below erred in charging the jury that the plaintiff was entitled to compensation for any portion of the time that he performed the duties of chairman of the committee.</p>

<p>A stockholder of a bank, who is entitled to a pre-emption of additional stock authorized to be issued, cannot maintain an action against the bank for refusing to permit him to subscribe for such new stock, without proving that he demanded and offered to subscribe for the same.</p> <p>This is a material averment in the declaration, and must be proved as laid.</p>