Volume 3 — Grant's Pennsylvania Cases

<p>This was an ejectment, brought in tbe Court of Common Pleas of Northumberland County, to April term, 1803, to , recover possession of a valuable tract of land in that county.' The facts of the case were as follows:—</p> <p>Robert Moody, who had originally owned Che land, made his last will and testament on the 11th August, 1778; by which he directed and empowered his executors thereinafter to be named, or any two of them, as the exigencies of his family might require, or as some or any considerable just demand against his estate made necessary, to sell, convey and make over any part or parcels of his lands and real estate. In the conclusion of his will he appointed his wife and two particular friends of his, st., William Maclay and Dr. William Plunket, his executors. -He died in 1780.</p> <p>After making this will, he had a child born; and the widow, not being acquainted with the law which provided for a child thus situated, but supposing that the child would be cut off by a will made before its birth, and being discontented with provisions that her husband had made in regard to herself, concealed the document, and took out letters of administration as if there ¿had been no will at all.</p> <p>Intelligence having got abroad of the existence of a will, Mrs. Moody was sent for and questioned about the paper, which she finally produced: and all acts which had been done by the administrators were now set aside; the executors, Mr. Maclay and Dr. Plunket, being considerably displeased by the widow’s disingenuous and improper conduct.</p> <p>After what had thus happened, Mr. Maclay and Dr. Plunket declined to meddle with the estate, and were unwilling that the widow should do so either. Accordingly all parties renounced the executorship; Mr. Maclay on the 26th March, 1785; Dr. Plunket on the 28th May following, and the widow on the same day: she in her renunciation consenting to the grant of letters of administration c. t. a. to the three persons hereafter mentioned, and whom the other two executors as hereinafter stated had selected to succeed them. The renunciation of all parties was in writing, and the instrument of renunciation was given to the Register of the county, John Simpson, Esq., and filed in his office. Though thus themselves renouncing the executorship, Mr. Maclay and Dr. Plunket, who were warmly attached to the deceased and felt an interest in his children— of whom he had left four of quite tender years — still determined that the estate should go into proper hands, and accordingly procured three other friends of theirs — st., Robert Robb, John McPherson, and David Ireland, who were also friends of the deceased testator — to assume the duties of the administration. And it having been understood that on the renunciation of the executors, the new persons would at once assume the office of administrators with the will annexed, all parties, the renouncing executors, and the new administrators c. t. a. met by appointment at the Register’s office, where probate of the will, the renunciation of the executors and the swearing in of the administrators with the will annexed, were officially performed at one time. Messrs. Robb, McPherson, and Ireland, who on the 28th May, 1785, thus assumed the administration c.t. a. did so by the particular and urgent request of the executors, Dr. Plunket urging “ that he was old and blind and could not take it in hand;” Mr. Maclay being “ much abroad,” and the widow “ insisting hard” that these should take it in hand.</p> <p>The administrators gave no security, such as is required by the act of 1713 relating to administrations. They proceeded, however, to sell the 'land, and did sell and convey it; acting, as it appeared, under authority and as agents of these same executors who had renounced, and who subsequently approved of what they did. Moody’s children at this time were all minors and young. The money raised by the sale was necessary to their support, and it was all faithfully applied. The defendants entered under their deeds into possession, and made improvements ; and the lands in virtue- of these and otherwise between 1790 or thereabouts, when the defendants entered into possession, and 1803, when this suit was brought, had become valuable. The plaintiffs, accordingly, while' bringing suit, tendered on the trial to the defendants the sum of $2000 to be applied to the reimbursement of principal and interest; and further they agreed to pay the value of all permanent improvements, deducting the profits received by the defendants —such value to be ascertained by arbitrators, or otherwise, under the direction of the court; and execution on the judgment to be obtained in this suit, to be stayed till full payment should be made of the sum found due from them on the prin- . ciples aforesaid.</p> <p>In the course of the trial, which was at great length before CHAMPMAiy, President Judge, and where the matters both of law and evidence were argued ably much at length (the¡ property in the present suit having been valuable, and there being other suits depending in which the same questions were involved as were to be considered in this case), the following questions arose:—</p> <p>1. Whether the grant of the letters of administration was void for want of security ? If so, whether the certificate of the Register, under his official seal, that no security had been given was evidence of that fact? Whether, supposing the letters good, Robb, McPherson, and Ireland — the administrators cum testamento annexo — had power to sell as administrators c. t. a. ?</p> <p>The court below was of opinion that the letters of administration gave no authority, and, in fact, were void, from the circumstance that security was not shown to have been given.</p> <p>2. Whether McPherson, one of the administrators, and who had made a deed with a warranty of good title as against Moody’s heirs, the present plaintiffs, was a competent witness to prove the title good as against them; Fulmer, the defendant and purchaser, having released him in form from the obligation of his warranty to him.</p> <p> The cowrt bebió had received the witness as competent.. </p> <p>3. Whether Ireland, another of the administrators was so;' the circumstances being the same in his case as in McPherson’s.'</p> <p> The court below had considered him competent. </p> <p>4. Whether the declaration of a certain Lucy Hood — a daughter and heir of Moody, the testator, and the wife of John Hood, one of the plaintiffs in the suit, his wife being joined with him — that she disapproved of this suit, &c., could be given in evidence.</p> <p>The court below had received evidence of her declarations, notwithstanding her coverture.</p> <p>■ 5. Whether a certain John Vandyke was a competent wit-mess for the defendant, and to disprove the plaintiffs’ case; Vandyke himself haying purchased from Robb, McPherson, and Ireland, and his title being the same as that of the defendant’s ; but he not having any interest in the very land which was the subject of the present ejectment. '</p> <p> The court below had considered the witness as competent and received his testimony. </p> <p>6. Whether various deeds from the administrators c. t. a. could be given in evidence, to show, not a legal title under them in the defendants, “but to show in what situation the defendants stood with relation to the original vendees, to put the whole of the circumstances of the case before the court and jury, and so to show generally a want of equity in the plaintiff’s cáse.”</p> <p>The court below, considering the case one not for the application of the most technical rules of law, admitted all these deeds in evidence.</p> <p>7. Whether the executors named in the will of Robert Moody — st., Mr. Maclay, Dr. Plunket, and the widow Moody— had a right to sell his land by virtue of the power contained in his will, after they had all renounced in the manner above btated and after letters of administration had been granted to Robb, McPherson, and Ireland, as administrators c. i. a., who were still alive, and actually acting in their offices.</p> <p> The court below decided that the- executors had power to sell after they renounced, if they chose so to do ; and that they might employ agents to help them. </p> <p>The jury having found a verdict for the defendants, the above seven questions came for final decision to this court; the first six on the plaintiff’s exception to the admission of evidence, and the seventh — the one, namely, as to the power of executors to convey under a will after they had all renounced the executorship, and when administrators c. t. a. were actually by the request and action of the executors themselves, in office, and acting — on an exception to the judge’s charge generally.-</p>

<p>1. A demand of appraisement and exemption under the act of 1849 should be made at the time of the levy, but may be made afterwards if not at so late a time as to postpone the sale.</p> <p>2. When the debtor is at hand at the time of the levy, or in circumstances reasonably convenient for the purpose, he is bound to demand the appraisement before the plaintiff is put to the cost of any further proceeding.</p> <p>3. If debtors see their property levied on and advertised without claiming the exemption they elect to waive it, and the sheriff or constable may disregard a demand coming so late as half an hour before the sale.</p> <p>4. When a debtor at the time of levy alleges the property levied upon to be the property of another, he cannot afterwards claim it and demand an appraisement and exemption.</p> <p>5. A conveyance or transfer of property in fraud of creditors estops the debtor from demanding $300 of it, or of its proceeds.</p> <p>6. A bachelor debtor may have the benefit of the exemption law of 1849.</p>

<p>Error to tbe Court of Common Pleas of Lycoming County.</p> <p>Tbe plaintiffs in error were defendants below.</p> <p>Assumpsit. On tbe 20th day of May, A. D. 1856, Peter M. Hanna drew bis bill of exchange on Thomas & Eogers, of Baltimore, as follows:—</p> <p>“$400. Williamsport, May 20,1856.</p> <p>Sixty days after date, pay to the order of myself, four hundred dollars, value received, and place to account of</p> <p>Peter M. Hanna.</p> <p>Thomas & Eodgers,</p> <p>. Baltimore, Maryland.”</p> <p>Indorsed “ Wm, McKinney,</p> <p>Bowman, Mabie & Co.,</p> <p>Peter M. Hanna.”</p> <p>The bill of exchange, so- indorsed, was taken to Messrs. Tomb & McCurdy by Peter M. Hanna, some time before its maturity, who discounted the same for him, as the agents of the Cecil Bank of Maryland, and paid him the proceeds.</p> <p>Tomb & McCurdy received the notes of the Cecil Bank, with which they discounted notes and bills of exchange. These notes and bills they were accustomed to charge up and send to the Cecil Bank. For doing this business they received a compensation from the Cecil Bank, varying with the amount of business done, from five to nine hundred dollars per annum. The indorsement of the name of the firm of Bowman, Mabie & Co., on the bill of exchange, was made by A. K. Mabie, one of the members of the firm, without the knowledge of Messrs. Bowman & Vanderbelt, the other partners, for the accommodation of Peter M. Hanna, the drawer.</p> <p>At its maturity the bill was presented to Thomas & Rogers, who answered that they had no funds, and was duly protested, and notice given to the indorsers.</p> <p>Defendants requested the court to charge</p> <p>1. That if the jury believe that Peter M. Hanna brought this note to the agents of the Cecil Bank, with all the indorsements upon it, and received the money for the same, that these facts were sufficient evidence to the said bank that it was accommodation paper, and sufficient to put said bank on inquiry as to the assent of the partners to the indorsement.</p> <p>2. That the Cecil Bank were bound to know the business of Bowman, Mabie & Oo.</p> <p>■ 3. That if the jury believe, from the evidence in the case, that this note was discounted by the agents of the Cecil Bank, an institution incorporated by the State of Maryland, that the establishment of agencies in this State was a penal offence, under our act of Assembly, in all concerned in establishing such agencies; and that therefore the plaintiffs cannot recover.</p> <p>All of which the court answered in the negative.</p> <p>The plaintiff requested the court to charge that if the jury believe the evidence in this cause, this bill was, at the time.it was received by the plaintiffs, a negotiable instrument payable to the bearer; was received by him in the ordinary course of his business, and for a good and valuable consideration; the plaintiff therefore took it free from all infirmities of which he had no knowledge at the time, and is prima' facie a bona fide holder entitled to recover. The single fact that the drawer was the bearer of the note, negotiated its discount and received the proceeds, is not sufficient to throw upon the plaintiff the burthen of proving that the indorsement was made with the knowledge of the members of the firm, or that the transaction was within the ordinary business of the firm.</p> <p>To which the court gave an affirmative answer, and told the jury that, under all the evidence in the cause, plaintiff was entitled to recover.</p> <p>The answers of the court were assigned as errors.</p>

This was an appeal from the decree of the Court of Common Pleas of Snyder County, making distribution of the proceeds of sale of the real estate of Robert W. Kern. The facts of the case appear sufficiently from the opinion of the court below, as follows:— Graham, P. J. — In the matter of the distribution of the money arising out of the sale of the real estate of R. W. Kern, late treasurer of Snyder County, sold by the sheriff of said county.

<p>Error to Common Pleas of Beaver County.</p>

<p>1. Where a sale is made of land, no one shall be permitted to receive both the money and the land; and hence, where one receipts the proceeds of the sale of land, this is an affirmation that his title has passed to the purchaser by virtue of the sale.</p> <p>2. The committee of a lunatic is but the bailiff of the court, and his acts, so long as they are unauthorized and unsanctioned by the court, can have no effect in divesting the lunatic’s title to real estate.</p> <p>3. Qui facit per alium, facit per se, is a maxim which applies as well to powers created by law as to those conferred by acts of the party.</p> <p>4. It is not necessary in order to bind a lunatic that the court should go through the idle and unnecessary form of a sale, if a result equally advantageous to the lunatic can be attained by adopting a fair and informal one already made...</p> <p>6. The decisions of a court are binding until reversed by appeal, writ of. error or otherwise, and cannot be overhauled in collateral actions.</p>

<p>1. The Supreme Court have the supervision and control in equity of private corporations, and this involves the power of issuing all sorts of process necessary to effectuate that control.</p> <p>2. It is not necessary in order to sustain a bill in equity Under the power to supervise and control private corporations that the case falls within the class of irreparable injuries.</p> <p>3. The trustees of an incorporated religious society alone can represent it in malting contracts.</p> <p>4. A meeting of the church members of a religious corporation and pew-holders, as such is not a meeting of the incorporated society, and it cannot instruct the trustees in their duties or assume any power over them.</p>

<p>Error to tbe District Court of Alleghany County.</p> <p>Assumpsit by Alexander H. Miller, administrator of ¥m. Hopkins, deceased, against ¥m. Reed impleaded with John Christy.</p>

<p>Error to the Court of Common Pleas*of Cambria County.</p> <p>Ejectment by Philip Sehettiger against Clemens Hopple and Henry Hopple.</p>

<p>1. Where the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification.</p> <p>2. Where the error assigned is to the charge of the court, the part of the charge referred to must be quoted totidem verbis in the specification.</p> <p>3. A settlement made by the auditor-general and state treasurer is conclu sive, unless appealed from within sixty days after notice of it.</p> <p>4. Where no notice of a settlement by the auditor-general and State treasurer has been given before the commencement of the suit, the suit in an action claiming the amount found due may be regarded as notice.</p> <p>5. When an official bond is signed by the ofiicer and his sureties, and delivered to the proper officer, it is an authority to fill up the blanks with the names of the obligors.</p>

<p>1. It is tbe duty of road viewers to endeavor to obtain releases from owners through whose lands they lay out a road; and, in ease of failure, to assess the damages, and to make report thereof to the court.</p> <p>2. When the report of road viewers is not made at the term next after the issuing of the order, parties have a right to consider the application as abandoned.</p> <p>3. The law does not provide for notice to parties interested in road views and orders, but the getting up a petition to the court, the appointment of viewers and their visiting the ground, are circumstances of notoriety, to put all parties on their guard, that they may know when to attend court to be heard.</p> <p>4. An order of 30th Sept. 1854, extending the time for making a report on an order to view a road, made Dec. 10, 1853, but which had not been acted upon, is null, the original order being/«acias.</p> <p>5. If a view cannot- be had in time to report to the next term after the order issued, a continuance of the order from time to time should be obtained in open court and docketed so that the record may be notice that the order is still pending.</p>

<p>Error to the Court of Common- Pleas of Greene County.</p>

This was an action of assumpsit by Edward S. Durban v. Yenango County, to recover compensation for the publication of the trial list of the Court of Common Pleas in his newspaper. In the court below, John S. McCalmont, J., entered judgment for plaintiff’ and filed the following opinion:— “Under a rule of court established by one of our predecessors, it became the duty of the prothonotary to have the trial list published in the plaintiff’s newspaper.

<p>Appeal from the Court of Common Pleas of Alleghany County.</p> <p>In 1852 Wm. Larimer, Jr., subscribed one hundred shares to the stock of the Pittsburg and Steubenville Railroad Company. He paid the first instalment, $500. On the 6th of January, 1855, he made an assignment. On the 13th of August, 1855, a judgment was rendered against him for the balance due on said stock, and the penalty- of one per cent, per month allowed by law for the non-payment of instalments. The auditors appointed to report on the distribution of the fund in' hands of Larimer’s assignee, allowed a dividend to the company on the principal sum, but not on the penalty. The exception taken to this was overruled by the court, which is assigned for error. The points raised will appear from the opinion.</p>

<p>Where a special contract is executed a recovery may be had in a general indebitatus assumpsit, on the common money counts.</p>

<p>Error to tbe District Court of Alleghany County.</p>

<p>1. An order of the Court of Common Pleas to o;¡Den a judgment is wholly within its discretion, and not reviewable in the Supreme Court.</p> <p>2. Where a court has jurisdiction of a kind of cases, but from some circumstance has no jurisdiction of a particular case in which a judgment has been entered by default, it is not error for the court in opening the judgment at the defendant’s request to impose the condition that he shall "waive the want of jurisdiction in the court. ’</p>

<p>Error to the District Court of Alleghany County:</p> <p>This was an action of ejectment, brought by Joseph Toe v. John Toe, his son, for a tract of land of 85 acres in Chartiers township. Before the trial of the case in the court below, Joseph Toe died, and his daughters, Mrs. Silk and Mrs. Achelson were substituted as plaintiffs, each claiming an undivided third under the will of their father, made a few days before the suit was brought. The remaining third was devised'to his son, the defendant. The plaintiffs showed the legal title in Joseph Toe from 1809, and the last will of Joseph Toe, dated March 23, 1858. < .</p> <p>< Defendants claim by parol sale in 1832 and possession, since that time, with improvements, and called witnesses in support of their claim. Samuel Graham testified that in 1833 he was at Toe’s when John was lying sick (having returned from a trip down the river), and the old man said: “He always intended to give John this farm, if he would only stay and take care of it. If he ever got -well and went down the river again' he would sell the farm over his (John’s) head and put. the money in his pocket, and John might then go and push for himself. I never .knew any one to occupy the farm from that time to the present but John, although the old man was living on it: John did all the selling, marketing, &c.” Mrs. Toe died in 1850.</p> <p>Samuel Frew testified that in 1848 he was contractor for the carpenter work of a house, built on the farm, worth about $1,500. That John did the business, made the contracts, &c. That the brick were burnt on the place, and the stone and timber obtained from the farm, and that the hands were boarded on the farm, old Mrs. Toe being housekeeper.</p> <p>Samuel Lee testified that he had hauled joists for the new house in 1848. “ I saw the old man Toe there and Mrs. Toe; he told me that John was going to build himself a house; that he had given him the farm, and that he would have a good deal of heavy hauling up the' hill before the house was built; he said that John was to keep him and the old lady as long as they lived; I don’t know who had possession of the farm, John or the old man, they all lived together.</p> <p>James Trunick testified that at one time, the old man said the arrangement between them was that John was to keep them and have the farm. The impression on my mind is, that John was to keep them and have the place at their death. The old man said it would be time enough then, and that it was right enough for a man to hold the title while he lived.</p> <p>It was in evidence that John had transacted the business of the farm for many years, but that the whole family lived together, and that most of the family expenses were paid by marketing, &c., by old Mrs. Toe and the daughter. That after Mrs. Toe’s death in 1850, the old man and John lived together in the new house. That John married in the spring of 1857, and that in December, 1857, the old man went to live with his daughter, Mrs. Achelson, about a mile distant from the farm, and that he died in May, 1859.</p> <p>The plaintiffs called various witnesses in rebuttal.</p> <p>It was shown that the farm was assessed to the old man from 1809 to the time of his death.</p> <p>William Perkins testified that he was assessor from 1843 to to 1853; that in assessing the farm he sometimes saw the old man, sometimes John, and sometimes both together; I assessed the farm to the old man, by their direction; I assessed John as a single man by his direction.</p> <p>Nathaniel Patterson testified that he lived on the adjoining farm from 1825 to 1837 ; that he was very intimate with the old man; I never knew any change in the possession from 1831 to 1837; I wrote his will in 1833; the old gentleman and his wife, John and Margaret (Mrs. Achelson) constituted the family; Margaret did the marketing; either the old gentleman or the old lady called and requested me to come up; I wrote the will at my own house, and took it up to the old man’s house; read it over to him, and he signed it; I left the will with the old man ; my impression is the farm was left to John, he paying certain legacies; recollect the girls were named, but don’t recollect the amount.”</p> <p>Stephen Woods testified that since 1885 he had three times-run lines between the Toe farm and adjoining farms, and that in each case the old man acted as owner, when there was a dispute as to the line.</p> <p>Moses Chess testified to having destroyed the will of 1833, by the old man’s directions, who said “ it was my will at one time, but is not now.” Other witnesses testified to various acts of ownership exercised by the old man down to the time of his leaving the farm in December, 1857.</p> <p>The court below, Williams, J., charged the jury as follows:</p> <p>“The plaintiffs have shown title under the will of their father, to the undivided two-thirds of the land described in the writ. The defendant claims the land under a parol contract with his father, but the evidence in support of his title, under the alleged contract, fails in two essential particulars.</p> <p>“ 1. It does not show that defendant took, and maintained possession of the land, under and in pursuance of the contract.</p> <p>“2. It does not show that he. made such improvements thereon as cannot be reasonably compensated in damages.</p> <p>“Nor is the defendant’s title, under the contract, strengthened by his possession, as that was not adverse or exclusive. The evidence wholly fails to establish such part performance of the alleged contract as will take the case out of the statute of frauds and perjuries, and therefore the court declines to charge, as requested, in defendant’s points, and instruct the jury that the plaintiffs are entitled, under the will of their father, to recover the undivided two-thirds of the land in controversy.”</p> <p>Which instruction of the court, and the refusal to affirm any of the eleven points submitted by defendant’s counsel, were assigned for error.</p>

Covenant on a policy of insurance issued by defendants to C. Fogle, and his successors in office, on a frame church in tbe borough of Brookville, Jefferson Co., Penna., for five years from the 5th of November,' 1851. The church was destroyed by fire on the 24th of May, 1856, within five years.

Execution attachment. The plaintiffs were owners of a large amount of the bonds of the Erie Canal Company, issued for the construction of… Held: at the time of the service of the attachment in this case, and for a long time before, and now holds the bonds of the said Erie Canal Company, due and payable the first day of January, A. D. 1850, to the amount or sum of three hundred thousand dollars, which said sum of three hundred thousand dollars is still due and unpaid, and…

<p>1. The Supreme Court may order Courts of Nisi Puros for the trial of criminal cases in the proper counties, and award venires for summoning jurors, and make such other orders as are necessary for the trial of the oases.</p>

This was an action of assumpsit originating before a magistrate upon a contract of subscription, of which the following is a copy:— “We the undersigned, citizens of Edinboro and vicinity, feeling the necessity of an institution of learning in our midst, affording greater advantages for education than common schools, do hereby agree to pay to E. W. Gerrish, Prentice Burlingham, Josiah J. Compton, Alfred Green, I. B. Taylor, Wm.

<p>1. A decree of distribution by the Orphans’ Court is conclusive upon all questions, until reversed.</p> <p>. 2. An administratrix cannot set off a debt due her against the claim of a distributee. The Orphans’ Court is not competent to try such an issue, but it properly belongs to the Common Pleas.</p>

In this case twenty-one barges were levied on, on a fi.fa. in No. 85, April Term, 1861, of the District Court. After the levy, libels were filed by Nease & Co., and others, and the barges attached for work and materials furnished in their construction. They were then sold on they?. /«., and the question of distribution of the proceeds of sale referred to an auditor.

<p>Assumpsit. — Error to the Court of Common Pleas of Somerset County.</p>

<p>1. If a creditor lias in bis bands tbe means of satisfying his debt and chooses not to retain it, but suffers it to pass into the hands of the principal debtor, the surety will be released pro tanto, unless he has consented to the conduct of the creditor.</p> <p>2. The renewal of an indorsement of an accommodation note, if it be not the making of a new debt, is a distinct acknowledgment of an old one.</p> <p>3. From each successive indorsement a perfectly natural presumption arises that the indorsers knew the sums for which the notes were respectively given to be due.</p> <p>4. Equity never gives relief to a party who has slept upon his rights for a period so long, that his claim would have been barred in a court of law.</p>

The plaintiffs in error were defendants below. Assumpsit, upon a promissory note of which the following is a copy:— $2014 94. May 15, 1849. Four months after date I promise to pay unto T. Stevens, James A. Thompson and B. Smith, or order, at the Bank of Gettysburg, two thousand and fourteen dollars and ninety-four cents, without defalcation, for value received. M. C. Clarkson. Indorsed — Thaddeus Stevens, James A. Thompson, Eobert Smith. Protested September 18, 1849.

<p>Error to the Court of Common Pleas of Dauphin County.</p>

<p>Error to the Common Pleas of Dauphin County.</p>

<p>A stipulation in the condition of a bond, waiving all law or laws tliat would prevent tlie obligee, bis heirs, executors, or administrators from levying on and selling the obligor’s property, is a waiver of the 'exemption law. It is a mode of pledging property otherwise exempt, and can be got rid of only upon the ground of fraud, accident, mistake, or other equitable principle.</p>

<p>An assignment made in tlie State of New York, and valid by the laws of that State, may be recorded in Pennsylvania and operate as an assignment against all persons claiming subsequently to the time of recording, and prior to that against purchasers and creditors having actual notice of it.</p>

<p>1. Acts of tbe casbier of a bank in pursuance of authority from tbe board of directors, although in violation of tbe law of its existence, bind tbe bank.</p> <p>2. As between a bank and those who contract with it in an unauthorized business, the new enterprise would become a part of its appropriate business, in the conduct of which it would be liable for the acts of its agents.</p> <p>3. It is a universal rule in the law of agency,- that in order to bind the principal upon a contract made by an agent, that the contract must be within the authority committed to the agent, and the authority should be strictly followed.</p>

<p>A confession of an award before a board of arbitrators with a right to appeal therefrom within thirty days, and without any judgment entered thereon will not support an execution.</p>

<p>1. The statute of limitation begins to run on a note payable on demand, from its date, and no demand of payment is necessary before suit brought.</p> <p>2. If a note be made payable at a certain time after demand, demand is necessary before suit brought, and the statute of limitations does not begin to run until the prescribed period after demand has elapsed.</p> <p>3. When a note or bill is made payable a stated number of days after demand, or after sight, a demand and lapse of time thereafter are conditions precedent to any right of action.</p>

<p>1., In an issue to try the validity of a will alleged to be revoked by a subsequent will which has been destroyed, the declarations of the testator, up to near the time of his death, concerning it, were competent evidence to show that the destruction was not by his direction.</p> <p>2. Where a will is alleged to have been destroyed, the declarations and acts of the person charged with doing it are competent evidence upon the issue as to who did destroy it.</p>

<p>Error to the Court of Common Pleas of Bedford County.</p> <p>The facts sufficiently appear in the opinion of the court, delivered June 5th, 1861, by</p>

<p>1. Personal estate is the primary fund for the payment of legacies, unless the will imparts a clear intention to charge them upon the realty.</p> <p>2. When assets are received by the executor sufficient to cover the expenses of administration, satisfy the debts, and pay the legacies, the real estate is discharged from further liability.</p> <p>3. If assets are wasted or misapplied by the executor, who acts as trustee for the legatees, the loss falls upon them.</p> <p>4. The real estate charged is liable on a deficiency of assets, but not on the misapplication, waste, or insolvency of the executor.</p>

<p>1. To support an action against a wife, even for family necessaries, it must be averred in tbe declaration, as well as shown by the evidence, that the debt was contracted by herself, and not by her and the husband jointly.</p> <p>2. ÍTer exclusive ase of the articles purchased, as building materials for a house being built by her, will not make her liable; the cause of action against her arising solely from her personal contract.</p> <p>3. A joint promise by the husband and wife is, in law, but the promise of the husband.</p>

<p>A married woman cannot part with her interest in lands by a contract in which her husband does not join.</p>

<p>Where two execution ereáitors have the same defendant and agree that one shall hid off certain of the property, and the other certain other of the property at the sheriff's sale, and then sell it put at private sale, for the benefit, first, of the purchaser, and the residue of the proceeds to go to the other creditor — the mutual promises are a sufficient consideration to support the contract, and it is not fraudulent as to creditors.</p>

<p>“ After verdict judgment shall not he stayed or reversed for that there is no right venue, so as the cause were tried by a jury of the proper county or place where the action is laid.”</p>

<p>1. A contract to make title to real estate by a judicial sale contemplates no time for its completion inconsistent with the due course of the process of the law.</p> <p>2. ' A contract to make title to real estate by judicial sale, provided it did not sell at more than $24,500, is not cancelled by a sale at a higher price than that, provided the bid is not made good, and the property returned unsold for want of buyers.</p>

Ejectment for four'acres of land. Plaintiffs deduced their title from the commonwealth by a warrant -for three hundred acres of land in Susquehanna County issued to J. B. Salisbury, Dec. 2, 1851, followed by survey — return, and patent to Salisbury February 10, 1852. Defendant claimed under a warrant to Andrew Allen, for three hundred acres of land, embracing the land in dispute, dated August 20th, 1774, and survey thereon duly returned in 1775. Defendant also proved that Wm.

<p>Error to the Court of Common Pleas of Bradford County.</p>

<p>Future estates limited upon a life estate wkicR are not sure to take effect in possession witRin twenty-one years, and tRe usual fraction after tRe determination of tRe life estate, are void in tReir creation.</p>

<p>Appeals from the- decrees of the Orphans’ Court of Philadelphia.</p> <p>Exceptions to auditor’s report.</p>

<p>1. The statute establishes twenty-one years’ adverse possession as a bar to an action for the recovery of land. Nothing short of that period is sufficient, and no more than that period is required.</p> <p>2. In cases where the statute of limitations gives title to land, rules for presuming a conveyance cannot be substituted by the court.</p> <p>3. As the statute of limitations does not apply to incorporeal hereditaments, the courts have applied its principles in the form of rules presuming a grant after an adverse enjoyment for twenty-one years.</p>

Action by John D. Longwell v. Bethuel Bentley, for partition of a tract of land containing about 51 acres and 106 perches. Plea, non tenet insimul. The case was once before in this court, and is reported in 11 Har. 99, to which the reader is referred for the facts.

<p>1. Where the plaintiff claimed-that by contract he was entitled to demand for certain services rendered, the one-tenth part of the amount received by the defendant from a certain estate, the account of the defendant as acting executor of the estate, and his account as trustee under the will — the agreement for instituting the suit and division of the estate between them, and the valuation and distribution of the real estate between the parties to the suit and others were competent testimony, even though the accounts were pending before an auditor.</p> <p>2. Where one party gives in evidence what a witness has previously testified to for the purpose of conti'adietion, the other party may give all the witness said on the same subject matter, bitt not every part of the testimony npon totally different subjects.</p>

<p>Certificate from Nisi Prius.</p> <p>Action on the case for words spoken tending to injure plaintiff’s credit and business.</p> <p>The plaintiff, William Qolbert, was largely engaged in the manufacture of bags and envelopes, and in the printing business, and up to the time of the alleged slander enjoyed a good mercantile standing. On the 15th August, 1855, he purchased on a credit of thirty days a bill of goods from the firm of Caldwell & English, of which defendant was a member, amounting to $1,075. On the 21st August, 1855, and before the maturity of the note to Caldwell & English, he had occasion to provide for the payment of a note of $703 to John Earnham & Co., and obtained the money from Moses Nathans, an auctioneer, as an advance on the goods before purchased of Caldwell & English, and placed them in his possession as security for the money advanced. The goods having appreciated in value, they were, on the 29th Aug., 1855, sent to Myers & Claghorn, auctioneers, by whom they were sold the next day at auction. About that time defendant called on Mr. Nathans and spoke the alleged slanderous words, which fully appear in the following testimony given on trial: — ■</p> <p>Moses Nathans sworn. — I am an auctioneer, 2d above Spruce. I made plaintiff an advance of $700 on 14 bales muslin, to be sold at expiration of 30 days if not redeemed. Colbert called to see me a few days after, and I advised him to sell them prior to the 30 days; I sent them to Myers, Claghorn.& Co., and they were sold.</p> <p>I received a note from Myers, Claghorn & Co. I called to see them; they told me the money was attached in their hands.</p> <p>Mr. Caldwell called at my store ; Mr. Colbert was there. I remarked I had just been speaking to Mr. Colbert about the attachment. Colbert said the money was not due, and that when it was due it would be paid; he said, I’ll give you half cash now and a note for the balance.</p> <p>I walked front with Mr. Caldwell. Caldwell then told me Colbert had purchased the goods under false pretences; that he purchased them for the purpose of making bags, and he (Caldwell) afterwards found them at Myers’ auction store; that he would not have had them sent there in that way for the value of the bill; that he had behaved very badly. He said, “ my -|- goods were sold also.” I asked him if they were paid for ; he said they were. He then told me to let Colbert have no more money. I said there would be money from sales of other goods. He advised me to keep it and not give him any more. I told Caldwell when Colbert brought the goods I offered him $600; he said it would do him no good, and showed me a note of $700 he wanted to pay ; .that he wanted it to pay a note of John Earnum & Co., qf over $700, and that less would not do. I offered him six hundred dollars; he said six hundred would do him no good. The goods were in m'y hands for a few days. It was an ordinary business transaction. When Colbert offered him half in gold and the balance in a note, Caldwell refused it; said he wanted his money.</p> <p>Being cross-examined, witness says: Caldwell says that they were bought to make bags of, and instead of that they were sent to auction. They were left with me a few days prior to Aug. 20, 1855, the sale was to take place on the 30th August. The intention was to have them sold at auction; other lots were also sold that were got of Mr. Caldwell. There was no limit; they were sold and J per yard below cost. Colbert could have had the money to pay Caldwell one-half; it was due him from me. The other sales had not been accounted for. He was boisterous and peremptory in his manner, and said he must have the money.</p> <p>S. J. Megargee sworn. — I am of the firm of Megargee & Bro’s. I am ' acquainted with plaintiff — he dealt with us — he had credit with us; don’t recollect to what extent. It was withdrawn a year last spring.</p> <p>We heard reports that were injurious. We withdrew the' credit from Mr. Colbert in consequence of hearing of some goods being sent to Myers & Olaghorn’s auction house, and ' being replevied. We notified Mr. Colbert of it at the time, that being the reason. The substance of what I heard was that he had bought goods for one purpose and sent them to auction for another.</p> <p>John Muckloe sworn. — I was formerly in the employ of Colbert. Have not been for some months. He did an extensive business; kept some 50 or 60 girls at work, and several sewing machines. Made in 1855 from ten to fifteen thousand bags per week. I made the purchases for the house from March to after August. Purchased on credit. The first bill was purchased in June or July — a small lot on July 15tH or 18th at 30 days. Second bill was bought August 15th; that was double the amount of the first bill. After the transaction with Caldwell, couldn’t do business on credit." Immediately after the money was stopped he was protested, and then- the business fell off. After that I could not obtain credit, ^rom doing a very large business, we had to give up the business. The business declined almost altogether after these transactions. The business declined from 20,000 bags per week to one hundred. ,1 was present at a conversation between Colbert and Caldwell. Mr. Caldwell said, “ Why did you send my goods to auction ?” I told him that if he was alarmed, if he would step round to the office it could be arranged. Caldwell said he had treated him very badly — 'had no right to send the goods to auction. Colbert said he had a right to do what he pleased with his goods, and would give him $500 down in gold, and his note for balance at six months. He told Caldwell he had no right to injure his credit, and that he was doing him great injury. Caldwell said he would consult his partner. Plaintiff assured him he should get his pay, and hoped he would spread no report to his prejudice. Caldwell said he had never mentioned it out of his own store, and never should.</p> <p>Plaintiff was doing a business of $-a year before that— when I left he could not pay my salary. It was some time after the protest, I couldn’t buy goods on credit; think it was over a week after the goods were bought of Caldwell before they were sent to pawnbroker’s.</p> <p>Whereupon Mr. Justice Woodward ordered a nonsuit, according to the act of assembly in such case made and provided.</p> <p>To this order the plaintiff excepted, and assigned the same for error.</p>

<p>1. A party after Raving given in evidence part of a conversation, an admission, a deed, a contract, a record, a letter, or any otker document, cannot suppress tRe remainder.</p> <p>2. TRe fact tkat a witness Ras refreshed his recollection by looking at a paper in which the facts within his knowledge and hearsay are both set down together does not make the hearsay evidence.</p> <p>3. When a party admits a letter or other document to be genuine by using it as such, he cannot afterwards deny its authenticity when his opponent desires to use it.</p> <p>4. The declarations of an. alleged agent cannot be given in evidence to charge his principal, unless it is first shown that he was an agent, secondly, that the scope of his general authority embraced the subject he was speak-v ing of, and, thirdly, that he referred to', some act of his own which he was' then or had recently been doing or causing to be done.</p> <p>5. When payment is voluntarily made by a corporation for lands they wish to occupy or have occupied, as full compensation, it is to be presumed that the parties measured the loss by the same rule that the law would apply to it.</p>

<p>1. Neither the heirs nor the creditors oí the heirs can receive anything out of the ancestor’s estate, so long as any debts of the ancestor which are valid and subsisting liens remain.unpaid, even though it is taken by one of the heirs at a valuation fixed by an inquest, and his recognizance given therefor.</p> <p>2. If an administrator pays debts to a larger amount than he has in his hands, he can only reimburse himself by settling an account.</p> <p>3. A debt paid by an administrator is not assigned to him, but extinguished, and he has no right of subrogation to the original oreditor.</p> <p>4. After an administrator has shown in the legal manner that there is a balance due him from the estate, he has a right'to recover it out of the personalty, if there be any left, or out of the land.</p>

<p>Eeros to the Court of Common Pleas of Chester County.</p> <p>Assumpsit.</p>

<p>Error to the Court of Common Pleas of Pihe County.</p>

<p>1. When an act names a great number of persons, and then enacts that they, “ or any three of them, be and are hereby appointed commissioners,” it is in the alternative, and the whole iramber named, or any three of them, are appointed at the election of the individuals named in the act.</p> <p>2. When it is the office of commissioners named to make proof under oath of certain facts specified in an act of incorporation, a surplus number of witnesses does not vitiate the proof or impair the effect of the evidence.</p> <p>3. The fact that the subscribers to the capital stock of a corporation do not, at the time of subscription, pay five dollars on each share subscribed, is not ground to invalidate the charter.</p> <p>4. No form of words is required in order to create a corporation. A grant of the power to perform corporate acts implies a grant of corporate powers.</p>

<p>1. The Supreme Court have power by certiorari to review the proceedings of Courts of Quarter Sessions incorporating boroughs.</p> <p>2. Nothing can be heard on certiorari except what appears of record.</p> <p>3. The legislature not having subjected the Court of Quarter Sessions to the operation of bills of exception, there is no way in which testimony or the ruling of the court touching its competency or effect 'can be got on the record.</p> <p>4. After the jurisdiction of the Court of Quarter Sessions has attached in the matter of a borough incorporation, it cannot be ousted by the recantation of some of the petitioners.</p> <p>5. The limit of a borough incorporation is a matter of discretion with the Quarter Sessions, and not reviewable in the Supreme Court.</p>

<p>Appeal from the decree of the Court of Common Pleas of Montgomery County.</p>

<p>. Error to the Court of Quarter Sessions of Philadelphia.</p>

<p>1. When a policy of insurance stipulates that the aggregate amount insured in this and other companies .on the property shall not exceed two two-thirds of the estimated cash value thereof, and greater insurance is made with notice to the company, the forfeiture is waived by subsequently making and collecting an assessment on the premium note.</p> <p>2. When there are several policies on the same property with condition that only two-thirds of the estimated cash value shall be insured, in case of loss each policy is only liable its pro rata amount of said two-thirds of the cash value.</p>

<p>Error to the District Court of Philadelphia.</p>

The testatrix by her last will made a bequest in the following words:— “Item.

<p>Appeal of Elizabeth M. Beatty and of Charles Haesler from the decree of the Court of Common Pleas of Schuylkill County, distributing the proceeds of the sheriff’s sale of the personal property of John S. Struthers.</p> <p>John S. Struthers and O. H. P. Eeed were co-partners in trade, as J. S.'Struthers & Co.,, and as such were the lessees of a coal-mine, called the Diamond Colliery, in Tuscarora,. in Schuylkill County.</p> <p>On the 18th day of April, 1855, a judgment was entered on a judgment note in the Court of Com,mon Pleas of Schuylkill County, in favor of Elizabeth M. Beatty against John S. Struthers, for $612 12, and on the 12th day of May, 1855, a judgment was entered on a judgment bond in favor of Charles Haesler, against John S. Struthers, for $2,000.</p> <p>On the 29th day of May, 1855, writs of fi. fa. were issued on these judgments, under which the sheriff levied upon and sold the interest of John S. Struthers in the partnership property of the firm of Struthers & Eeed, for $1,900; and also individual property of John S. Struthers to the amount of $252; the execution of Elizabeth M. Beatty having the precedence, having been first delivered to the sheriff.</p> <p>At the time of the sale, the firm of J. S. Struthers & Co. were indebted to miners and laborers, for work done for the firm at fhe Diamond Colliery, to the amouñt of $4,493 15.</p> <p>The miners and laborers claimed that the proceeds of the sales should be applied to the payment of their claims against the firm. The execution creditors claimed the proceeds as being the value of the interest of John S. Struthers in the firm, subject to the payment of the partnership debts, which included the claims of miners and laborers. The sheriff paid the money into court. An auditor was appointed, who distributed the proceeds of the sale of the interest of John S. Struthers in the firm of Struthers & Eeed among the miners and laborers, as well as the proceeds of the sale of the individual property of John S. Struthers.</p> <p>The execution creditors filed exceptions to the report of the auditor. The court overruled the exceptions, 'and confirmed the report of the auditor, from which judgment this appeal is made.</p>

<p>1. An owner who in 1852 paid the road taxes returned for collection for the years 1850'and 1851, is not liable to have his unseated lands sold for additional taxes assessed during these years, but not returned until 1856. Per Supreme Court.</p> <p>2. The authority to lay an assessment “not-exceeding one cent on the dollar upon real and personal estate, offices, trades and occupations,” for road purposes, and also, “ the levy of an assessment and collection of the same,” for the purpose of discharging any Just debt due a former supervisor or overseer of the poor, is vested directly in the supervisors, without application to the court. Per White, Pres. Com. Pleas, approved by Supreme Court.</p>

<p>Error to the Court of Common Pleas of Susquehmna County'.</p> <p>Ejectment by the plaintiff below, Lewis P. 'Wilmarth, against Crawford Titus, for thirty-five acres and one hundred and twenty perches of land, surveyed to Wilmarth by virtue of a warrant, dated 6th of December, 1858. The action was brought as an appeal from the decision of the Board of Property, in admitting a survey of Crawford Titus,'the defendant.</p> <p>The plaintiff claimed a settlement from 1814, and proved an actual residence of his father, from whom the property descended to him, from that period continuously. He proved by Charles Tingley the establishment of the lines by which he claimed his. boundary from near that time. He had a house and barn upon the lot, and had raised grain, and occupied it as a means of supporting his family. A large part of his farm was on a lot called the Baldwin survey, which adjoined the land on which he resided, and which is now in dispute. A few years since it was ascertained that the Baldwin warrant did not cover this piece of vacant land; and Crawford Titus, living in the vicinity and learning this fact, conceived the design of getting the land and a house which was erected thereon, which happened to be for the time unoccupied, and which belonged to Mr. Wilmarth.</p> <p>Accordingly on the 27th of October, 1853, he made an application for the land, stating that he had an improvement upon the land of one acre, and dating his improvement in 1849. Upon the trial it was proved and not controverted, that he had never improved upon the lot, but that the house covered by his survey and the improvements had all been made by Wilmarth.</p> <p>As soon as the attempt of Titus to get the land was known to Wilmarth he applied for a warrant for the land and entered the caveat against the survey of Titus.</p> <p>The evidence in the case establishes the following facts:—</p> <p>1. That Wilmarth entered upon the land in 1814, for the purpose of residence and settlement, and raised grain and made it the means of supporting his family, and has continued to reside there to the present time.</p> <p>2. That around this land he has, from about 1814, had well defined lines, and that his claim has always extended to those lines.</p> <p>3. That the residence, occupation, and claim were notorious, and that Titus lived in the immediate vicinity and must have known of the claim.</p> <p>4. That in addition to the house in which Wilmarth resided there was upon the premises another house, on the northwest side of the road, at the date of survey unoccupied, and around it about four acres improved. This had been built by a brother of plaintiff, who on the 21st of November, 1853, conveyed it to the plaintiff.</p> <p>It was admitted that when Wilmarth entered, he supposed it to be surveyed land, and that it was covered by the Baldwin warrant.</p> <p>On the 21st of November, 1853, Wilmarth made an application for the land, and on the 6th of December, 1853, a warrant issued, and it was surveyed on the 13th of the same month.</p> <p>This survey included the land which had always been claimed by Wilmarth. The survey for Titus excluded about five acres on which the house and orchard and barn of Wilmarth were erected, and leaves that in a triangular piece.</p> <p>Defendant requested the court to charge the jury as follows:— '</p> <p>1. That if the jury believe, from the evidence in the case, that the plaintiff went on to the land in controversy, under a claim of title from Blackman under the Baldwin warrant, and made his improvement under said claim, that then he gained no rights as a settler to said land.</p> <p>2. That unless the plaintiff went on to said land as land belonging to the State, and with the bona fide intention of making a settlement thereon, and make his improvements in pursuance of said intention; and claimed to defined limits, that he acquired no rights to said land against a subsequent warrantee, and cannot recover.</p> <p>8. That if the plaintiff went into possession of the land under the Blackman deed, and under the Baldwin warrant, and by mistake made improvements, and built his buildings over the line, he got thereby no rights as a settler, and certainly not beyond his actual improvements.</p> <p>The court, Wilmot, J., charged as follows: — ■</p> <p>The plaintiff in this case claims in virtue of an actual resident settlement upon the land in dispute, and made applications therefor on the 21st of November, 1853, claiming an improvement as early as 1814. • On this application, a warrant was issued to plaintiff, dated the 6th of December, 1853, on which a survey was made on the 13th of the same month.</p> <p>The defendant made application for the land, claiming an improvement of one acre, made in 1849. A warrant issued to him, dated the 2d of November, 1853, on which a survey was made the 17th of the same month.</p> <p>On the 25th of November, 1853, the plaintiff entered a caveat, which was heard by the Board of Property, and dismissed on the 9th of March, 1855. On the 4th of August, 1855, the plaintiff institutes this suit.</p> <p>The paper title of the defendant is prior in date to that of the plaintiff, but in our view this cause rests upon the facts touching the improvement and actual settlement upon the land. Has the plaintiff, or those under whom he claims, kept up an actual bona fide resident settlement upon the land in dispute, making improvements, cultivating the land, and raising crops thereon — making it a place of permanent abode, and the means of supporting a family — and this prior to the inception of the defendant’s title? If so, the plaintiff would be entitled to recover, unless you find that the land became abandoned, and thus open to entry..</p> <p>It seems that when Thomas Wilmarth purchased of Black-man he supposed the land in dispute was covered by a warrant known as the Baldwin.warrant, and it is claimed that, therefore, he acquired no right as a settler under the pre-emption laws of the commonwealth. If the evidence of Charles Ting- - ley is believed, Thomas "Wilmarth, under whom the plaintiff claims, resided upon and improved the land forty years ago. He purchased of Blackman in 1825, and at that time supposed the land was covered by the Baldwin warrant. In this he was mistaken, and actually built his house upon vacant land of the commonwealth, improving and cultivating several acres. The court do not think that this mistake as to the real situation of the land would preclude his acquiring the rights of a settler, provided all the requisites of residence and improvement are complied with ; and the court decline to charge as requested in the within points submitted by defendant’s counsel. You must believe, in order to entitle the plaintiff to recover, that not only an actual resident settlement was kept up on the land— that there was no abandonment, but that the claim was defined by known boundaries. A settler cannot make an indefinite claim, reaching out in any direction that may ultimately suit his interest and convenience, but must define its extent by known boundaries and limits.</p> <p>The evidence of an abandonment in this case' is very slight indeed, and if there was no abandonment, and the jury believe the evidence of the plaintiff touching the early and continued residence and settlement upon the lanfl, with claim to known boundaries embracing the land in question, in the opinion of the court the plaintiff would be entitled to recover.</p> <p>The jury found for the plaintiff.</p> <p>The charge of the court is the error assigned.</p>

<p>1. In an action of covenant against a corporation, the seal to the instrument upon which the suit is brought must be proved to be the seal of the corporation.</p> <p>2. A corporation may adopt the seal of another or an ink impression, but such adoption or impression must be proved.</p> <p>3. To prove a seal to have been adopted by a corporation, a resolution of the board of directors is not indispensable.</p> <p>4. Whether an instrument is sealed or not is for the court, but whether or not the seal is that of the defendants is for the jury.</p>

<p>Error to tbe District Court of Philadelphia.</p> <p>Mechanics’ lieu.</p>

Error -to tbe District Court of Philadelphia. Ejectment. In tbe year 1835, George Cleaden was seized in fee of two adjoining lots of ground, with tbe three story brick messuages thereupon erected, situate on tbe west side of Delaware Fourth Street, in the city of Philadelphia, one at the distance of ninety-five feet and tbe other at the distance of one hundred and ten feet south from tbe south side of Carpenter Street.

<p>Error to the District Court of Philadelphia.</p> <p>Execution attachment.</p>

<p>1. Books of original entries are admissible to prove work done or a sale and delivery of goods ex necessitati rei, and on the principle that the entries are part of the “ res gestee." ' - ,</p> <p>2. Book entries, to be evidence, must have been made contemporaneously with the sale and delivery of the goods, or with the performance of the work.</p> <p>3. Books of original entry are evidence of the sale and prices and delivery of the goods.</p>

<p>1. When ■words are written, the general rule is that the court is to interpret them, but when they are merely spoken, the sense and meaning are for the jury.</p> <p>2. When a jury have fixed the meaning of words, the legal effects and consequences are to be determined by the court.</p> <p>3. When a mechanic who had been employed by a contractor was about to quit work for fear he would not get his pay, and the owner told him to do the work for him and he would see him paid, the debt is his own, and not another’s, and he is bound by his parol promise.</p>

<p>1. In practice a return is often made after the return day, and is sometimes allowed to he made after the lapse of several years, to avoid apparent irregularities.</p> <p>2. Where a writ is a nullity, the. defendant should ask the court to strike it off.</p> <p>3. It is irregular to try one process, in proceedings on another, and it cannot he done.</p>

<p>1. Personal property having been sold while in the hands of a bailee, without any actual change of possession, it was not error in the court to refuse to charge that the sale was a fraud in law, and leaving the question of fraud in fact'to the jury.</p> <p>2. If the transaction is not fraudulent per se, the party alleging fraud must prove it to the satisfaction of the court and jury.</p>

<p>1. A justice of the peace has jurisdiction of a cause of action by a defendant against a constable, for selling property which he had claimed to hold under the $300 exemption law.</p> <p>2. Trespass is the appropriate action against a constable for selling property claimed under the $300 exemption law.</p>

<p>1. ' It-is the duty of the court to interpret a contract, and of the jury to determine whether it is established by proof.</p> <p>2. When covenants are mutual and dependent, either party suing on them must allege and show performance on his-own side before he can recover from the other.</p> <p>8. A refusal by the court below to grant a new trial is not assignable for error.</p>

<p>1. The words, “with stay of execution until the day of payment,” do not amount to an express waiver beyond that day.</p> <p>2. The words, in a bond, “ with stay of execution until the day of payment,” do not, even after the time of payment has arrived, amount to a legal stay within the exception of the act of Oct. 13,1857.</p> <p>3. The legislature may alter or abridge the remedy for breach of a contract, provided the alteration be not so great and unreasonable as to amount to a substantial impairing of the obligation. .</p>

<p>Error to the Court of Common Pleas of Schuylkill Oouniy.</p>

<p>Error to the Court of Common Pleas of Montgomery County.</p> <p>Case stated, the following extract from which raises the question decided by the court:—</p> <p>“ The defendants are a religious corporation, duly constituted by an act of assembly of the Commonwealth of Pennsylvania, and resident within the said county. • As such corporation they have the following personal properly, to wit: Sixteen thousand eight hundred and seventy-five dollars, which is invested on bond and mortgage, at an annual interest of six per cent.; and two thousand five hundred dollars of the five per cent, loan of the State of Pennsylvania, which was purchased at 84, for $2,100. The whole of the annual income arising from the said personal estate constitutes a part, and the principal part, of the salary of the pastor of the said Presbyterian church in the township of Abington, and no part of the said income is appropriated to or used for any other purpose.</p> <p>“ The whole of the said personal estate of said corporation has been assessed, returned and taxed for state and county purposes, as follows:—</p> <p>“ Eor state tax, sixty dollars ; for comity tax, sixty dollars. The corporation hold the church edifice and five acres of ground connected therewith, which is not assessed for taxation.</p> <p>“ The question for the opinion of the court is, whether the said personal estate is subject to taxation, in whole or in part, for either or both said purposes.</p> <p>“ If the court should be of opinion that it is all taxable for both purposes, then judgment to be entered in favor of the plaintiffs and against the defendants for the sum of one hundred and eight dollars and seventy-five cents. If of opinion that no part of it is taxable for either of said purposes, then judgment to be entered for the defendants. If of opinion that a part is taxable for either or both purposes, then judgment to be entered for such sum as the court may find the defendants are legally liable to pay, at the rate of thirty cents to the hun- ■ dred dollars, for state purposes, and thirty cents to the hundred dollars for county purposes.”</p> <p>The court, Smyzer J., entered judgment for plaintiff for the sum of $108 75, and this is the error complained of.</p>

<p>Appeal from tbe decree of the. District Court of Philadel-</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of replevin brought by Thomas Price, plaintiff in error, who was plaintiff below, against Charles MeCallister and Wells Walton, defendants in error, who were defendants below, for a billiard table which was rented by Halfman & Newman, tenants of the defendant McOallister, and keepers of an hotel and billiard saloon, from Thomas Price, the plaintiff, to whom it was to be sold when he had paid a certain sum, which table was distrained by McOallister for rent due from Halfman & Newman. To the plaintiff’s declaration the defendants filed their avowry, and the cause was submitted to the court below, upon a ease stated, setting forth the above facts, upon which, after argument, the court entered judgment for the defendants, and this is the error complained of.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia.</p> <p>Exceptions to auditor’s report.</p> <p>Allen Armstrong, late of the city of Philadelphia, died«on the 22d March, 1832, leaving real and personal estate. His will was dated 15th February, 1832. His wife, Ellen R., was first provided for; and after her death or second marriage, the interest provided for her went to his children.</p> <p>These were Hetty Maria, who died in 1833, unmarried ; Jane W., afterwards married to William H. Jones, of Somerset County, Maryland; and Allen Armstrong, junior, to whom the bulk of his property passed under the will.</p> <p>Jane W. Armstrong, afterwards Mrs. Jones, died on giving birth to her only child, Jane W. A. Jones, upon the 15th May, 1837 ; and on the 16th June following, William H. Jones, her father, became her guardian.</p> <p>By the terms of the will of her grandfather, this minor granddaughter was entitled to the sum of $6,660, on the death of her mother, who, by its provisions, was entitled to receive the interest of that principal sum for life. Her guardian receivednothing from 15th May, 1837, until the 8th May, 1855, when, upon the decree of the Supreme Court, the principal was paid to the guardian.</p> <p>The question of interest is the only one now open upon this, legaey.</p> <p>This case was before the Supreme Court in 1855, and on the 17th day of March the following decree was entered:—</p> <p>And now, to wit, this 17th March, 1855, these causes having been argued by counsel and fully considered by the court, it is ordered.’ adjudged and decreed, -that the decree of the Orphans' Court, allowing Jane W. Jones the legacy claimed of $6,660, be confirmed, and that so much of said decree as relates to interest on said legacy, and to the allowances made by the auditor to David Winebrenner, as assignee of Allen Armstrong, be reversed and set aside — and that the amount of said allowances be paid to Jane W. Jones, on account of the interest due on her said legacy, and that the •account be referred to J. K. Findlay, Fsquire, to ascertain and report what amount of personal estate still remains applicable to the interest of said legacy.</p> <p>And, subsequently,</p> <p>April 11th, 1855, on motion of the counsel for appellee and appellant, it is ordered by the court that the “ duties of the auditor appointed by the court on "the 17th of March, 1855, be enlarged, and that he be required to state an account and report distribution of the funds in the hands of the trustee.”</p> <p>The auditor reported,</p> <p>That having notified J. Murray Eush, Esq., counsel for appellant, and C. Guillou, Esq., counsel for appellee, of the time and place of meeting, he was on the 5th of April, 1855, attended by those gentlemen and by J. A. Phillips, Esq.</p> <p>Mr. Eush represents William H. Jones, the appellant, guardian of his daughter, Jane W. A. Jones, and also the said William H. Jones in his own right.</p> <p>Messrs. Guillou and Phillips represent Mr. W inebrenner, and Mr. Guillou, Allen Armstrong, the grandson of the testator.</p> <p>Mr. Eush for William H. Jones, in his own right, as husband of testator’s daughter. Jane W. claims one-third of the principal sum of the annuity bequeathed by the testator to his daughter, Hetty Maria, that is, one-third of $6,660, on the ground that the decedent, as regards this sum, died intestate. There is no specific bequest of this sum in the seventh item of the will in the event of Hetty Maria dying without issue, and thq residuary bequests in the eighteenth item, Mr. Eush contends, are exclusive of the special bequests to the daughter; and there being nowhere in the will any disposition made of this principal sum of $6,660, in the event of Hetty Maria dying without issue, the testator, as regards this sum, has died intestate, and that W. H. Jones, as the husband of Jane W., upon taking out the letters of administration on her estate, is entitled to one-third of the said sum, subject to the debts of his wife dum sola. To sustain this position, Mr. Eush referred the auditor to the seventh, eighteenth, and twenty-second clauses of the will, and cited Eoper on Legacies, 321, 4 Ves. 59, Phillips v. Chamberlain, 5 Madd. 412; Bland v. Lamb, 2 Ves. Sen. 285.</p> <p>The fact that Hetty Maria died without issue is conceded.</p> <p>The auditor is of opinion that the residuary bequest is not exclusive of the bequest to Hetty Maria in the seventh item, and this is also the construction put upon that clause, in the opinion of the court, by Mr. Justice Woodward (ante, page 169). It is there shown why the bequest to Jane was, and that to Hetty Maria was not, exempted from the operation of the eighteenth clause. “ Hetty Maria dying without issue,” says the learned judge, “ the devise over of the principal of her annuity never took effect. But in Jones’ case there was a devise over of the principal and a birth of issue to take.” The bequest to Hetty Maria, therefore, upon her death without issue fell into and formed part of the residuum bequeathed to Allen Armstrong in the eighteenth clause. The auditor therefore reports that the said W. H. Jones is entitled to no part of the bequest made by the testator to his daughter Hetty Maria.</p> <p>2. The claim of W. H. Jones, as guardian of his daughter, Jane W. A. Jones, for interest on the legacy of his ward.</p> <p>The widow of the testator died April 1,1854. Hetty Maria, the daughter of testator, died prior to June, 1834.</p> <p>Allen Armstrong, the son of testator, was born on the 7th January, 1825.</p> <p>Under the will of his father, he was entitled to an annuity of $400 till he was sixteen years of age; $500 till he was twenty-one, and $750 till he was twenty-five. In other words, he was to be paid $400 per annum till the 7th of January, 1841; $500 till the 7th January, 1846, and $750 till the 7th January, 1850, when he became, by the will, the residuary legatee for life of the whole income of the real and personal estates of the testator, which might yearly remain after paying taxes, repairs, and expenses, and the certain yearly sums bequeathed by the testator to his wife, daughters, and sisters.</p> <p>Mrs. Jones, the wife of W. H. Jones and the daughter of the testator, died on the 15th May, 1837, in giving birth to her daughter, the said Jane W. A. Jones. Mrs. Jones, during her life, was entitled to an annuity of $400. By the decision of the Supreme Court in this case, her daughter is entitled to the principal sum of that annuity, $6,660 (which has been paid), with interest thereon from the mother’s death. But the estate was not competent to pay the legacy of Miss Jones and the interest thereon in full, and the annuities of the widow and Allen.</p> <p>The honorable court, in their opinion, delivered by Mr. Justice Woodward, concur with the former auditor in the opinion that it would “ now be a hopeless task to review the whole estate to ascertain from time to time with any precision what periodical abatement should have been made from Allen’s annuities,” and say “ that although they will not overhaul the estate so far as it has been administered for the purpose of giving her her interest, she has a right to be first served out of the funds on hand, and as far as they will go towards satisfying her just claim to interest on her legacy, they should be so applied.”</p> <p>The auditor has not the wish, nor, under the opinion of the court, has he the power to overhaul the administration of the estate, but he does not think that he is precluded from an examination of the face of the accounts of the executors and trustees, given in evidence before him. The auditor cannot hold the executors or trustees responsible for over payments to Allen, or disturb a single item either on the debit or credit side of their accounts, but if he can he thinks he may ascertain the amount of Miss Jones’ interest from the face of these accounts. There is a mode of calculation which the auditor thinks ascertains the just claim to interest on her legacy and does not disturb the past administration of the estate. This calculation was suggested and made by the learned counsel for the appellant. It meets the approval of the auditor, and has served much to lighten the labor of investigating the case.</p> <p>The accounts which were put in evidence before the auditor, are the third and fourth of the executors, and the first, second, and third of the trustees. It appears by the third account of the Pennsylvania Company, that on the 7th of January, 1850, the day on which Allen ceased to be an annuitant, and became a residuary legatee under the will, there was a balance due the estate of . - . $3,491 65</p> <p>From the death of Mrs. Jones up to that time, there was paid to Allen on account of his annuity, the sum of .... $5,800 00</p> <p>"Which, added to the aforesaid balance, makes the sum of .... $9,291 65</p> <p>Or, in other words, this would have been the sum to be distributed pro rata to the arrears, respectively of Miss Jones’ interest and Allen’s annuity, if neither had been paid a dollar.</p> <p>■By ascertaining, then,-the full amount of arrears due to Miss Jones on the 7th of January, 1850, and also the full amount of arrears due to Allen up to that date,' a pro rata distribution of the said sum of $9,291 65 to the arrears of Miss Jones’ interest will give the amount she was justly entitled to on that day.</p> <p>The mother of Jane died on the 15th May, 1837.</p> <p>The amount that was due to Jane on the 7th January, 1850, was from June, 1837, till December, 1849, twelve and a half years, at $400 per annum .... $5,000</p> <p>During the same period the amount due to Allen was for—</p> <p>Eour years and six months .at $400 per annum $1,800</p> <p>Eour years at $500 per annum 2,000</p> <p>Eour years at $750 per annum 3,000</p> <p>$6,800</p> <p>Add amount due to Jane .... 5,000</p> <p>$11,800</p> <p>The percentage which the aforesaid sum of $9,291 65 pays on this total is 0.78. 74.271, making Jane’s share $3,937 14.</p> <p>This is the sum she was entitled to on the 7th January, 1850, and which she would and ought to have received if the payments to Allen had been reserved, and a pro rata distribution made between them on that day, or the accountants had made the proper abatements on Allen’s annuity as they paid it.</p> <p>But Jane is further entitled to be paid $400 per annum from .the said December, 1849, till the 8th May, 1855 (when the principal of her legacy was paid) . . . $2,151 67</p> <p>Add to this heryiro rata share as above stated 3,937 14</p> <p>Total.....' $6,088 81</p> <p>Erom which is to be deducted the sum already paid her on account of interest . . . 1,400 00.</p> <p>Balance ..... $4,688 81 Which the auditor reports as the amount of interest which is due to the said Jane W. A. Jones on her legacy, and to be paid out of the fund in the hands of the accountants.</p> <p>The auditor further respectfully reports, that the personal estate now in the hands of the Pennsylvania Company for insurance on lives and granting annuities, applicable to the payment of the interest of the said Jane W. A. Jones’ legacy, is as follows:—</p> <p>Cash......$1,569 49</p> <p>140 shares of Girard Bank stock, which at its present</p> <p>quotation, 11 3-8, is worth . . . 1,592 50</p> <p>$3,161 99</p> <p>The accountants to be charged with any appreciation, and credited with any depreciation of said Girard stock.</p> <p>To which report Messrs. Gfuillou and Phillips, for Mr. Winebrenner, filed the following exceptions:—</p> <p>I. Awarding interest to W. A. Jones.</p> <p>II. In the calculation of interest, and in the selection of the grounds for its ascertainment.</p> <p>III. In fixing the amount due to Jane at $5,000 — and in stating Jane’s pro rata share to be $3,937 14.</p> <p>IY. In awarding to her as due $2,Í51 67.</p> <p>Y. In awarding that there is due to her on account of interest, $4,688 81 — which should be paid out of the fund in the hands of the accountants.</p> <p>J. Murray Bush, for W. H. Jones, filed the following exception:—</p> <p>The auditor erred in refusing the amount claimed by W. H. Jones arising out of the share of Hetty Maria Armstrong, as to which there was an intestacy.</p> <p>All of which the auditor overruled, and this is the error assigned.</p>

<p>1. When the record of a magistrate has supplied one transcript for the purpose of a lien, and by its entry a lien has been obtained, the magistrate’s record has spent its force in that direction.</p> <p>2. An execution from a justice’s docket upon a judgment more than five years old, without a previous warning by scire facias, is irregular.</p>

<p>1. There is no law that requires the Orphans’ Court to order an issue to try facts arising in the settlement of an administrator’s account.</p> <p>2. After an auditor has made his report it is too late to ask for an issue to. try a fact upon which he has passed.</p> <p>3. Administrators usually have no interest in a question of distribution, and hence no right to appeal for anything decided therein.</p>

The defendants were the owners of a mill and dam on the Tionesta Creek. Plaintiffs were the owners of some timber rafts which were injured in running over the dam. The-questions presented for the adjudication of this court fully appear from the following points put by the defendant, and the charge of the court. 1.

<p>Error to the District Court of 'Philadelphia.</p> <p>Assumpsit.</p>

Assumpsit. The declaration, in this case was as follows:— “Orrin P. Ballard, the defendant in this cause, was summoned to answer Sarah L. Pitch, the plaintiff in this cause, of a plea of trespass on the case upon promises, and thereupon the said plaintiff, by E. W. Baird, her attorney, complains for thát whereas, heretofore, to wit, on the twentieth day of October, in the year of our Lord one thousand eight hundred and forty-eight, at Troy, in the county aforesaid, the said…

<p>Appeal from the decree of the Court of Common Pleas of Philadelphia, confirming the auditor’s report on the account of Jacob Stearly, trustee and administrator cum testamento annexo of the estate of Henry Apple, deceased.</p>

<p>1. When the relation of parties is such as to negative the idea that services were rendered in expectation of payment, they cannot he made the basis of a legal claim.</p> <p>2. When services have been rendered in expectation of a legacy, the law will imply no promise to pay for them. .</p> <p>3. Where a person went to live with another apparently as a friend, and so continued to live during his life, although sufficient for a consideration for an express promise, such a promise must he direct, clear, and positive, in order to sustain an action- on it.</p> <p>4. Declarations which may he only expressions of intention, are not a promise sufficient to sustain an action; although declarations of a man, stating what he has agreed to do, are evidence against him.</p>

<p>1. When fraud, accident, or mistake is made clearly to appear in a written instrument, it may, by parol evidence, be made to conform to the ascertained intent of the parties to it.</p> <p>2. A vendee of land on which a survey had not been closed, may show by parol that at the time of the purchase the vendor represented that the deed “would and should” extend over and cover certain specified land, upon which representation the vendee relied, and had the deed reformed accordingly.</p>

<p>1. Semble that tlie assignee of a mortgage is protected from secret equities of all others than the mortgagor.</p> <p>2. A mortgagee is a purchaser in form, although he has no estate in the land mortgaged, and the transaction is governed by different principles from those which apply to a chose in action.</p> <p>3. Where a chose in action is capable of alegal assignment, and is assigned under the act of 28th May, 1715, the assignee must take it discharged of the equities of third persons, for in such ease he stands on his legal rights, and does not need the interposition of a chancellor.</p> <p>4. An assignee of a chose in action for value is not bound by a parol agreement not known to him, which has been made with a stranger to the contract he bought, and which was intended to destroy the legal effect of the record.</p> <p>5. When one of two innocent persons must suffer, he must bear the burden or loss whose act or neglect has been the occasion of the suffering.</p> <p>• 6. Laches in the holder of a secret equity will postpone him. Even an equity in an obligee will be lost by neglect to assert it, and a fortiori will a third person lose his right by any laches which causes an injury to a purchaser of a chose in aotion.</p> <p>7. The holder of a secret equity against the obligee, collateral to the contract, may not by action or inaction unnecessarily expose others to loss in purchasing the contract.</p>

<p>Error to the Court of Common Pleas of Philadelphia.</p>

<p>A deed of trust for tbe separate use of a married woman, made by berself in contemplation of immediate marriage, without the consent of her intended husband, may be avoided by him as a fraud on tbe marriage contract.</p>

<p>1. An order of the Court of Common Pleas founded on a previous decree to pay money cannot he appealed from; only the decree and not the order is the subject of appeal.</p> <p>2. .In equity remaining executors can demand the enforcement of a decree against a late co-executor.</p>

<p>Parol evidence is not sufficient to prove a trust seventeen years before suit brought to enforce it, and eleven years after the death of the alleged trustee when other rights have attached.</p>

<p>No third title can he purchased by an agent or a tenant, and made use of to defeat that of the landlord.</p>

<p>1. A married woman may contract by her husband in regard to her own separate property.</p> <p>2. The question of the wife’s liability to a contract should be raised in the court below; it is too late to dispute it in the Supreme Court.</p>

<p>1. It is immaterial to the purchaser of negotiable paper whether it is business paper or accommodation paper; the maker is equally liable on either.</p> <p>2. A member of the board of directors and one of the finance committee of an incorporated company may purchase a note given by an individual for the accommodation of the company, and recover from the maker where he is not the agent of the company to sell the note.</p>

<p>1. An administrator is chargeable with interest received by him before he pays over the amount in his hands to the distributees.</p> <p>2. He is but a trustee, and is bound to account for whatever he receives.</p>

<p>1. A mortgage given as collateral security for the payment of present liabilities and future advancements, which the mortgagees were under no contract to make, takes rank as to these future advancements, and as against other mortgages and judgments, from the date of such advancements, and not from its own date.</p> <p>2. In Pennsylvania, a prior incumbrancer in making future advances is bound to take notice of a prior and intervening recorded incumbrances, in the same manner as if he were about to accept of a new and independent liability from the party, without reference to any prior incumbrance.</p>

<p>1. A confession of judgment by one partner for a partnership debt does not discharge the other partners from liability for the same debt, since the act of April 6th, 1830.</p> <p>2. “A promise, however express, made by one 'member of a dissolved co-partnership, to pay a partnership debt already barred by the statute, does not revive the debt as to his copartners.”</p> <p>3. Payments of interest on such' a debt, when made by the liquidating partner within the six years, and in due course of settlement of the affairs of the firm, will keep the debt alive as to the firm, and the firm as to the debt. Whatever is done in good faith by the liquidating partner for payment of the debts of the firm, especially before they are barred by the statute, binds the firm.</p>

<p>1. Technical rules of construction are only applicable to wills in cases of doubtful interpretation, and are never allowed to defeat an intent plainly expressed.</p> <p>2. Where the testator bequeathed a certain fund to a trustee, in trust to pay the interest at his discretion to A B, and in case of his death, “ without leaving issue,” to pay the principal to the children of C D, it was held :</p> <p>(1) That the trust created was a good one in Pennsylvania.</p> <p>(2) That A B took no absolute interest under the will, and simply an interest in the income of the fund.</p> <p>(3) That the bequest over to the children of O D was good.</p> <p>(4) That the body of the legacy was not attachable by a creditor of A B.</p>

<p>Appeal of. Benjamin Chew, executor, from the decree of the Orphans’ Court of Philadelphia County.</p>

<p>Certificate from Nisi Prius. In Equity.</p>

<p>Error to the District Court of Philadelphia.</p>

<p>1. A mill propelled only by water at the time of filing a lien against it, but afterwards propelled by steam, and being two stories high, with a low stone basement, and a window in the gable end, was described as a two-story frame steam grist mill, with an accurate description as to location. Held : That as no. one could be misled as to the property covered by the lien, the description was good.</p>

<p>1. A formal recognizance for a’ prisoner’s appearance to answer a criminal cliarge, may be moulded out of entries in the court’s docket, which recite an offence, and the fact that on a certain day the prisoner and his bail recognized in a certain sum conditioned for the former’s appearance to meet his trial.</p> <p>2. A forfeiture of a recognizance by the Court of Quarter Sessions is a judicial act and conclusive of the breach of it.</p>

<p>Appeal from the Orphans’ Court of Susquehanna County.</p>

<p>1. The Supreme Court have not original jurisdiction in equity, between citizens outside of the city of Philadelphia.</p> <p>2. The jurisdiction in equity over private corporations extends throughout the State.</p>

<p>Error to Common Pleas of Schuylkill County.</p>

<p>1'. A partnership debt is recoverable against the executors of a deceased partner, even pending a suit against the survivors.</p>

<p>Certiorari to the Court of Quarter Sessions of Bucks County.</p>

<p>Appeal from the decree of the Orphans’ Court of Philadelphia County.</p>

<p>One who has brought suit in the Court of Common Pleas against the administrator of a decedent, in which, after, pleas in bar filed, verdict and judgment have passed against him, cannot afterwards enforce payment of his claim in the Orphans’ Court against the estate of the decedent. The Court of Common Pleas and Orphans’ Court being courts of concurrent jurisdiction, he is estopped by the judgment from asserting a right to participate in the distribution of the fund before the auditor.</p>

The parties on the record were as follows:— The Girard Fire and Marine Insurance Company, Garnishees of John Roth & Co., v. Field, Merrit & Co. Same v. Same. These were actions of scire facias against the garnishees in foreign attachment.

Assumpsit. Error to the Court of Common Pleas of Erie County. Prior to October, 1860, the Orescent Oil Company bad sunk an oil well at Tidioute, in Warren County, and soon thereafter leased the well to L. L. Lowry, ihe plaintiff, and John C. Ford.

<p>1. A majority of a church congregation may direct and control consistently with the particular and general laws of the organism, hut not in violation of them.</p> <p>2. When the charter of a religious congregation reserves the right in a majority to make a connection with any other Christian denomination when they shall think it to their advantage, they are not thereby empowered to dissolve such connection when made, apd the right under this clause is exhausted by the act of union.</p>

<p>1. When carriers provide that they shall not be liable for unavoidable' dangers of the navigation, they mean dangers that are unavoidable by them, supposing that they have exercised all the precaution, care, and skill that the law usually demands of common carriers.</p> <p>2. When carriers prove that an accident fell upon them without any previous fault of theirs, and that they had a proper vessel and crew, and did all in their, power to extricate themselves, they shall be as free from liability as from fault.</p> <p>3. A loss by collision without fault on the part of the carrier boat is covered by the exception in the bill of lading of “ unavoidable dangers of the river navi gallon,” and the carrier is not liable, even though the collision was caused by the negligence of those navigating the other vessel.</p> <p>4. A carrier is bound to carry safely, and if he fail to do so, the burden of proof of a valid excuse is cast upon him.</p>

<p>Error to the Common Pleas of Clinton County.</p> <p>This case was before in the Supreme Court, and is reported in 10th Casey’s R. p. 88, to which reference is made for a statement of the facts. After a second trial in the Common Pleas, where the ruling was in accordance with that of the Supreme Court, it was brought back by the plaintiff, on a writ of error, and the opinion of the court affirming their former ruling and the last judgment of the Common Pleas was delivered by Thompson, J., whose opinion is not given here, it having been marked to be reported in the State Reports.</p>

<p>At Nisi Prius, coram Lewis, J.</p>

<p>At Nisi Prius.</p> <p>Suggestion for a quo warranto.</p> <p>William Lafflin suggests that Samuel Allen, Esq., was duly elected high sheriff of the city and county of Philadelphia on the second Tuesday of October, 1852, and that said Allen appointed one Jesse Christopher keeper of the debtors’ apartment of the Philadelphia County prison, and that said Christopher gave the proper security and acted as the deputy of-the said Allen until some time in 1855, when he was appointed to the same office by the inspectors of the Philadelphia County prison, and, under said appointment, now usurps said.office.</p> <p>And further, that on the second Tuesday of October, 1855, George Magee was duly elected sheriff of said county, and duly qualified, &c., and entered upon the duties of his office. That he then appointed the relator, William Lafflin, keeper of the debtors’ apartment of the said Philadelphia prison; that the said Lafflin demanded of the said Christopher to have the custody of the said debtors’ apartment and to enter upon his duties as keeper thereof, he having first entered into the proper security, and that said Christopher refused to deliver to him the custody of the said debtors’ apartment, and prayer for process to said Jesse Christopher to answer by what warrant he claimed to have and enjoy the franchise of said office.</p> <p>Defendant moved_ to quash the writ on the ground that it alleged no title to the office. January 21, 1856, the court overruled the motion to quash.</p> <p>Lewis, C. J. — The questions arising in this cause ought to be carefully considered and decided on a final hearing. We see no peculiar hardship in requiring the defendant to present his defence in the usual way. He is in possession, and can suffer no serious injury from the delay of a few weeks.. His motion to quash the writ is therefore overruled.</p> <p>Woodward, J. — I dissent on the ground that the relator alleges no title whatever to the office, and therefore I would quash his writ. ■</p> <p>Respondent then pleaded several pleas, to the third of which relator demurred, and replied to the fourth.</p> <p>These pleadings raised the question for determination so clearly stated in the opinion.</p>

<p>At Nisi Prius. In the matter of exceptions to the Master’s report.</p>

At Nisi Prius, coram Strong, J. Partition in equity between Emeline Griffith, complainant, and John S. Phillips and others, defendants. The facts and question for determination fully appear in the report of the Master in Chancery, to whom the matter was referred for determination, filed February 21st, 1861.

<p>1. The rolling stock and equipments of a railroad company may not he seized in execution after the company has become insolvent or has mortgaged its stock and equipments; hut in such cases the equity that would restrain a sale, springs out of the insolvency, or the trusts -(ft-eated hy the mortgage.</p> <p>2. Where, however, there is a question in a case whether the company had power to mortgage, the court, without deciding it on a motion for a special injunction, will enjoin creditors and the sheriff from proceeding to sell property covered hy the mortgage, hut directing that the lien of the fi. fas. shall continue till further order.</p>

<p>At Nisi Prius.</p> <p>Motion for special injunction.</p>

<p>A volunteer mustéred into tie service of tlie United states for “ during tie war,” under the act of Congress, approved July 25th, 1861, cannot claim the benefit of the stay law of 18th April, 1861. The term for which such volunteer enlisted being necessarily indefinite, the stay law, as applied to such a case, is unconstitutional.</p> <p>A writ of assistance with fi. fa. for costs is civil process within the meaning of the stay law.</p>

<p>In Equity. At Nisi Prius.</p> <p>These were bills in equity praying an injunction against the defendants, United States collectors and assessors, to restrain them from proceeding with the assessment and collection of a tax of three per centum on all clothing manufactured, by the complainants since the first of September last. The complainants allege that the tax is unlawful, because they have paid in full, the duty or tax on the materials used in the clothing, and have added nothing thereto but the laborin making them into garments. The application for the injunctions was argued.</p>

<p>Tbe answer to a bill of complaint responsive to the matters complained of, is conclusive evidence in favor of defendants, there being no opposing testimony.</p>

<p>Bill in Equity at Nisi Prius. Motion for preliminary injunction.</p>

<p>At Nisi Prius.</p>

<p>At Nisi Prius.</p> <p>At a subsequent sitting of tbe court, coram Mr. Justice Strong, and before judgment had been entered on the verdict in the preceding case, defendants petitioned its removal into the Circuit Court of the United States for the Eastern District of Pennsylvania, under the provisions of the-fifth section of the act of Congress of March 8, 1863, upon which, after argument, the following'opinion was read and order made by</p>

<p>1. When a defence depends wliolly on the construction of the Constitution of the United States and. acts of Congress, the courts of the United States have jurisdiction of the subject-matter, without regard to the citizenship of the parties.</p> <p>2. An officer acting in good faith under a warrant purporting to come from his superior, whom he is bound to obey, is acting under “ color of authority,” whether the superior transgresses his power, or the warrant be irregular or not.</p> <p>3. This case (after verdict and before judgment) was properly certified into the Circuit Court, and must be tried in the same manner as if brought here by “ or as if it had been brought in said court by. original process.”</p>

<p>Rule to show cause why the above cases shall not be removed to the United States Circuit Court.</p>

<p>The act of Congress of March Ed, 1863, providing for the removal to the Circuit Court of the United States actions arising from any act done under color of the authority derived from, and executed under the President of the United States, is unconstitutional. —</p>

<p>The plaintiff, an ex-United States Minister to Bogota, on coming to New York from Washington, where he had been to submit his accounts, was arrested by order of the defendant, who was Secretary of State for the United States, and incarcerated in Port Lafayette. To recover damages for this arrest and imprisonment this action is brought, and defendant, under the provisions of the act of Congress of March 3,1863, moves to transfer the action to the United States Circuit Court for trial.</p>

<p>A criminal case cannot be certified to the United States Circuit Court for trial under the 6th section of the act of Congress of March 3, 1863, chap. 81, until indictment has been found in the State court.</p>

<p>Ooram Lowrie, Chief Justice.</p> <p>Habeas Corpus for the release of relator held as a drafted soldier.</p> <p>-The return of respondent denied the jurisdiction of the court, and was as follows:—</p> <p>RETURN.</p> <p>To the Hon., dc. dc. dc.:—</p> <p>Edward S. Wright, Provost Marshal of the department of the Monongahela, having constructively in his custody, as Provost Marshal of said department, Elry McLain. 'For return to a writ of habeas corpus issued by the Hon. Walter H. Lowrie, directed to said Captain E. S. Wright, Provost Marshal of the 22d Congressional District of Pennsylvania, and all other persons restraining the liberty of Elry McLain, dated the 26th day of August, 1863, commanding him to produce before your honor the body of said Elry McLain, would respectfully submit, that he is not Provost Marshal of the 22d District, Pa., but is the Provost Marshal of the department of the Monongahela, and the said Elry McLain is held as a soldier in service of the United States, in the Provost Guard of the department of the Monongahela, now doing duty in Pitts-burg.</p> <p>The said Elry McLain was drafted into the United States military service under the provisions of an act of the Congress of the United States, approved July 17,1862, entitled An act to amend the act calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion, approved February 28,1795, and the acts amendatory thereof, and for other purposes, and certain orders made by the President of the United States, through the War Department, entitled respectively General Orders No. 94 and No. 99, and dated respectively August 4, 1862, and August 9,1862. The said orders, being made in pursuance of the said act of Congress, and the latter order being .entitled “Regulations for the enrolment and draft of three hundred thousand militia,” and respondent asks that said act of Congress and said orders here produced in court may be taken and considered as a part of this return. That said Elry McLain was a citizen and resident of Fayette County, Pa., and was between the ages of 18 and 45 years, and was liable to do military duty under said act of Congress and said orders of the President, and he was regularly, and your respondent, is advised, legally drafted in the United States military service on 16th October, 1862. That said Elry McLain failed to report at Camp Howe, the place of rendezvous designated for drafted men. That by virtue of the said orders and also a general order issued by General Canby, charged with the execution of the draft in the Department of Western Pennsylvania, and dated Pittsburg, Dec. 18, 1862, herewith produced, and which respondent asks to be taken as a part of this return. The said Elry McLain was arrested as a deserter or recusant by Capt. William B. Coulter, Provost Marshal of the 21st District, Pennsylvania, and was brought to Pittsburg and placed in custody of the Provost Marshal of the department of Monongahela, and by him held as a deserter. That said arrest took place in August, 1863, and the said Elry McLain was placed in respondent’s custody on the day of August, 1863, to be dealt with as a recusant or deserter. That afterwards, to wit, on the 12th day of August, 1863, the said Elry McLain, by consent of Major-General Brooks, in command of the department of the Monongahela, and with the consent of said Elry McLain, was mustered into military service of the United States, in the Provost Guard of said department, to serve for the period of nine months, the time for which he had been drafted. That he is flow charged with desertion and recusancy for which he was arrested, but no charges in form have as yet been made, nor will be prosecuted for said offence or offences, if he continues faithfully to discharge his duty as a soldier in said Provost Guard, as he has done since he entered said service. That by a further order of the War Department, dated July 1st, 1863, he is ordered to make known to your honor the cause of detention of the said Elry McLain in obedience to the writ of habeas corpus issued by your honor, and to submit to your honor that said Elry McLain, being, as above stated, in the military custody of the United States, charged with desertion and recusancy, he ought not to be required to produce the body of said Elry McLain before your honor.</p> <p>Sworn and subscribed before me this 3d day of September, 1863,</p> <p>Thos. J. Keenan,</p> <p>Pro. Sup. Ct., W. D.</p> <p>Edward S. Wright,</p> <p>Capt. and Provost Marshal.</p>

<p>In eases of imprisonment under Bederal authority, not judicial, the State and Red-era! courts have concurrent jurisdiction.</p>

<p>Common Pleas of Centre County.</p>

At Nisi Prius. In Equity. These three bills in equity were filed in tbe Supreme Court for tbe Eastern District by tbe plaintiffs above named, against the Officers of the Enrolling Boards of the First and Fourth Congressional Districts, praying for injunctions to restrain the defendants from further proceeding with or under the enrolment requisition and draft, under the act of March 3d, 1863, and particularly from all proceedings against the said plaintiffs.

At Nisi Prius. In Equity. Motion to dissolve the preliminary injunction ordered in this case, as previously reported. On the 12th December, 1863, Mr. Knox, for the defendants in each case, applied to Mr. Justice Strong, then holding the Nisi Prius, to dissolve the injunctions theretofore granted in said court. Judge Strong received the motions, and appointed the 30th December instant for their hearing, and, as in the former proceeding, requested his brethren to sit with him.