Volume 3 — Pennsylvania State Reports

<p>May 11. — This was an aciion of replevin for a gray mare of the value of $100, brought by Christian Shenk, the defendant in error, who was plaintiff below, against James Moore, the plaintiff in error. Bonds were given, and the defendant held the property. The defendant pleaded property, to which the plaintiff replied property in hims.elf, and on this issue the cause was tried.</p> <p>The controversy in this case grew out of a trade or exchange of mares between Christian Shenk, the teamster of Christian Shenk, the plaintiff, and Jan es Moore, the defendant. 'It appeared that on or about the 12th'of August, 1841, Christian Shenk, with a team of five horses, came into the village of Georgetown, Lancaster county, and stopped his team in the street, opposite to where one of the witnesses examined in the case was engaged in loading his cart, to •which a gray horse was attached. He approached witness, and expressed a desire to trade a sorrel mare, then in his team, for his gray horse. Witness declined to trade, but directed him to James Moore, who was the owner of a gray mare, as a person with whom he might probably be able to carry his object into effect. Shenk went directly to Moore, who was standing by his mare in the street. A trade or exchange was shortly made between them, in and by which Shenk agreed to give his sorrel mare and $25 to boot, for the gray mare of Moore. An exchange of animals was made immediately by the parties, and Shenk paid over the boot-money to Moore. Representations, as to the soundness of the respective animals, were made by both parties. Shenk stated that the sorrel mare was sound, and would work well wherever she was hitched. Moore made a similar statement as to the gray mare. It was also mutually agreed, that if either mare did not prove sound, or work well, as she had been represented, either party might return his animal, get the other, and thus rescind the bargain. The time within which the right of re-exchanging was to terminate, was not specified. Some of the witnesses swore, that as Shenk was about leaving with his team, Moore, who had been driving the sorrel mare in a light wagon, called to him, and said that he might expect him on the Monday following. It was proved, that the sorrel mare did not work as represented. On the Monday after the trade, Moore took the sorrel mare, and in company with two of his neighbours, who were examined as witnesses, went to Christian Shenk’s, the plaintiff’s, house, for the purpose of returning her, with the boot-money, and of getting the gray mare again. Learning that Shenk was not at home, but had gone to Lancaster with the team, he proceeded in that direction, and met the team in charge of Christian Shenk, with whom the trade and bargain had been made. Moore told Shenk, he had brought back the sorrel mare and boot-money, that she would not work as represented, that she did not suit him, and that he wanted the gray mare again, according to the trade. Shenk refused to exchange. Moore then left, saying he would send the sheriff or constable to Shenk. After proceeding some distance in the direction of Lancaster, Moore and the persons with him turned into a lane, and rode back for the purpose of overtaking Shenk on his wrayhome. They overtook him ascending a hill. Moore rode up to him, and asked if he still refused to give up the gray mare. Shenk said he did. Moore then stopped the team, unhitched the gray mare from her place, took off her gears, put the blind bridle on the sorrel mare, and said to Shenk, who had been opposing all the time, here is your mare, and here, pulling out $25, is your money. Shenk refused to take either the mare or the money. Moore then let the sorrel go, and laid the money down on the bank by the wagon, and, calling the attention of Shenk to it, mounted the gray mare and rode away.</p> <p>On the trial, Christian Shenk, with whom the trade had been made, was offered as a witness on the part of the plaintiff. To his admission, the counsel of the defendant objected, on the ground that he was a party interested. To sustain his objection, he called and examined three witnesses, who proved, that at the time of the trade Christian Shenk, the witness offered, represented himself as the owner of the team. The court, however, overruled the objection, admitted him to testify, and this decision constituted the first bill of exception. Christian Shenk then testified, that he was the wagoner and cousin of Christian Shenk, the plaintiff, and that he had authority from him to trade or sell any one of the wheel horses he chose. The plaintiff, in examining one of his witnesses, asked him the following question: « Did you see on Monday, the 16th day of August, three men take a gray horse from ShenJc’s teamV The inquiry suggested by this question was objected to by the defendant, on the ground that the issue was property, and not trespass. The objection was overruled, and this formed the second bill.</p> <p>The following are the material parts of the charge of his honour, Judge Hays, to the jury :■ — •</p> <p>“ By the contract of sale or exchange made at Georgetown on the 12th of August, the property in the gray mare passed with the possession to the plaintiff, and the property in the sorrel passed with the possession to the defendant. It was a contract executed. And the question is, whether by the act and conduct of James Moore, in taking the gray mare by force from the team of Christian Shenk, on the 16th of August, the property of the plaintiff in her was divested, and restored to the defendant. It is true a man may take his own property wherever he finds it, provided he can do it peaceably. By the terms of the contract, if the sorrel mare did not work, as Shenk had stated she would, or was unsound, James Moore had a right to return her with the money received, and demand the gray mare. But this did not justify him in seizing her by violence; in stopping the wagon on the public road and forcibly taking her out of the team. Suppose, on arriving at the plaintiff’s house, he had found him at home and his horses in his stable, and had said to him, Mr. Shenk, I here come to return the sorrel mare and the money I received, on the exchange. This mare does not suit me; she will not work, as it was represented she would; I will take back the gray. The plaintiff expresses his belief that the sorrel will work, offers to try her, and says he is unwilling to give up the gray, until it is ascertained that the other will not perform. The defendant then declares he will have her, and while the plaintiff refuses and forbids him, he goes to the stable, opens it, and, against the consent and will of the plaintiff, forcibly takes possession, and rides her' away. Would this have changed the property? I am of opinion that it would not; that if the property was in Christian Shenk before, it would have continued in him still. And the effect is precisely the same of the conduct and acts of James Moore in stopping the team, and against the will and consent of Christian Shenk, the wagoner, repeatedly stating his dissent, forcibly ungearing this gray mare and taking her away. James Moore had no more right to do that, than he had to go into Christian Shenk’s stable against his consent, and take her from one of the stalls. I therefore instruct you, that, in point of law, such a forcible taking by James Moore did not change the property or restore it to him ; but that it remained just where it was before. If, according to the contract of the 12th of August, the property was after the delivery in Christian Shenk, the plaintiff, it remains in him, and he is entitled to recover it in this action.”</p> <p>To the charge of the Court, the defendant’s counsel excepted. The jury found a verdict for the plaintiff, with six cents damages and six cents costs. The judgment on this' verdict was a judgment awarding a return of the property; on which, a writ de retorno habendo was issued. To this writ the sheriff returned, “Writ read and property demanded of the defendant, who says, he has it not; therefore it is eloigned.” The attorney of the defendant moved the court to grant a rule to show cause why the above writ should not be quashed. After argument, the court denied the motion. The learned judge, in denying the motion, delivered the following opinion</p> <p>“ The motion in this case is founded upon the supposed distinction between a verdict for the plaintiff and a verdict for the defendant, in actions of replevin, brought to try the right to personal property. The distinction is this. Where the jury find for the defendant, in a case in which the chattels have been delivered by the sheriff to the plaintiff, the verdict must give damages for the taking and detention, and the judgment award a return of the chattels; but when the chattels have been retained by the defendant, and the jury find for the plaintiff, the verdict must be of damages for the value of the chattels, and there can be no judgment for a return of them.</p> <p>“The cases, under Ihe circumstances last mentioned, do so far sustain the idea of the distinction, as to sanction a verdict for the value of the property, and confer the title on the defendant; but they do not go the length of deciding, that if the verdict be for the plaintiff, without finding the value in damages, a judgment de retomo habendo may be rendered upon it. See 5 Serg. &Rawle, 131, 4 Watts, 68.</p> <p>“When the action of replevin is resorted to for the purpose of trying the right to personal property, there is no colour of reason for the distinction. The parties ought to be regarded as standing upon equal ground and entitled to the same measure of redress, whichever may prevail. On the determination of the issue of property, if the verdict be for the defendant, he is entitled to the property itself ; if it be for the plaintiff, why should he not have the property likewise? Either should be allowed to take the equivalent in damages, if the jury find the value. Equality of right between the parties is so consonant with the character and object of this action, (replevin in Pennsylvania,) that nothing short of positive and express decisions to the contrary would warrant the denial of a judgment for the return of the goods to the one party, if, under similar circumstances, it would be granted to the other. In truth, the argument in support of the rule was founded on the ita lex scripta est, rather than any discoverable reasons of equity or policy. But see Gibbs v. Bartlett, 2 Watts, 34.</p> <p>“ In the present case, the verdict was for the plaintiff, finding six cents damages and six cents costs; and this, it was said, must be considered as finding the value of the gray mare (the property in issue) to be six cents. But the jury did not find the value, either specifically or by finding such an amount as indicated that to have been their intention. The jury found for the plaintiff on the issue of propertythat is to say, that the gray mare in question was the property of the plaintiff. The judgment on this verdict was a judgment awarding a return of the property; on which, the writ de retorno habendo was properly issued. Without such a judgment, the replevin bond would be nugatory.</p> <p>“ I am accordingly of opinion, thatthe motion to quash the said writ be denied. Motion denied.”</p> <p>The defendant thereupon took this writ of error, and assigned here the following errors :—</p> <p>“1. The court erred in admitting Christian Shenk, as a witness, to testify; he was not competent.</p> <p>“2. The court erred in admitting the testimony contained in second bill of exceptions.</p> <p>“3. There is manifest error in the whole charge of the court to the jury, and, particularly, in that part where the court say, ««That the question is whether by the act and conduct of James Moore in taking the gray mare by force from the team of Christian Shenk, on the 16th of August, the property in him was divested, and restored to the defendant.” This was not the question. The question was one of property, and not force; and all that part of the charge which states, that the forcible taking could not change the property, is erroneous. The court should have instructed the jury, that if the sorrel mare was returned according to contract and the same rescinded, then the gray mare was the property of Moore. And they erred in saying, that the property in the gray mare remained in Christian Shenk, after the rescinding of the contract by Moore.</p> <p>“ There is, also, error in the charge of the court, making the fraud and misrepresentation a warranty, and the whole charge is erroneous in law.</p> <p>“4. The court erred, in not quashing the writ of de retorno habendod’</p> <p>cited Wilk. on Replevin, vol. 6, Law Lib. 43; Shearick v. Huber, 6 Bin. 5.</p> <p>The question in this case in the court below, was property, and not trespass. The court therefore erred particularly in that part of their charge to the jury, where they say, “that the question is whether by the act and conduct of the defendant, James Moore, in taking the gray mare by force from the team of the plaintiff, Shenk, on the 16th of August, the property in him was divested, and restored to the defendant.” This was not the question; it was one of property, and not force; and all that part of the charge which states, that the forcible taking could not change the property, is erroneous. The court should have instructed the jury, that if the sorrel mare was returned according to contract and the same rescinded, then the gray mare was the property of the plaintiff. The court also erred in saying, that the property in the gray mare remained in the plaintiflj after the contract had been rescinded by the defendant; and in making the fraud and misrepresentation a wárranty. Misrepresentation, &c., vitiates contracts. He cited, 1 Story’s Eq. ch. 6, sec, 200. 201, 203, 213, 214, 215; Fonb. Eq. 115, note to 115, 111, 117, 118; McLane v. Fullerton, 4 Yates, 522; Perkins v. Gray, 3 Serg. & Rawle, 331; Marshv. Pier, 4 Rawle, 273, 283; McFarland v. Newman, 9 Watts, 55; McCabe v. Moorehead, 1 Watts & Serg. 513.</p> <p>Again, the court below erred in not quashing the writ de retorno habendo. Here the verdict was for the plaintiff, with six cents damages and six cents costs. In replevin, where the property is delivered to plaintiff, there the verdict is for the defendant generally; and the jury find damages for the taking and detention, and the defendant is entitled to a retorno habendo of the goods. But where the defendant holds the property, gives bond, and the verdict is for the plaintiff, the verdict is in damages, the measure of which is, the value of the property, and no recovery of the article itself. Fitz. N. B. 69, L. and in note C, Dublin edition of 1793; 2 Penna. Practice, 166, 167, 168, 176; Easton v. Worthington, 5 Serg. & Rawle, 130; Marsha. Pier, 4 Rawle, 290; Etter v. Edwards, 4 Watts, 68; Chaffe v. Sangston, 10 Watts, 265; 1 Saund. 347, notes.</p>

<p>Where an article of agreement for the sale of lands contained, on the part of the vendor, the following stipulation: “The said A. hereby agrees to sell unto the said B. and 0,, their heirs and assigns, one undivided half part of two hundred acres of land, situate on Elk Creek, in the county of Erie, and including the mouths of said creek; said two hundred acres to be cut off the lands of the said A. by lines hereafter to be designated by the said A., B. and C., or a majority of them, so as to embrace within said two hundred acres the lands at the harbour of said Elk Greek best suited for the site of a city intended to be located on the same:” — Held, that these words were not only a description of the premises agreed to be sold, but also a representation by the vendor, that there was a harbour there, which, being the assertion of a material fact, would affect the contract, and attaint it with fraud, if it were proved to be untrue.</p> <p>Xf, in such case, the court had submitted the construction of the article of agreement to the jury, and instructed them that they might infer from it alone, misrepresentations by tlie vendor, it would have been error; but, where other evidence had been given, to submit the said agreement, with all the other evidence in the cause, to the jury, and to instruct them «to weigh all the facts in the case, and to say, whether they tend to prove that the vendor misrepresented the condition of the mouth of Elk Creek, relative to a harbour,” and if they believed the vendor had practised a fraud upon the vendees, in relation to the existence of a harbour at that place, that then such fraud would entirely vitiate the contract, is not error.</p> <p>Where a contract is made under a mistake, or in ignorance -of a material fact, one which is of the very essence of the contract, it is voidable and relievablc in equity. And it seems, that this rule applies not only to cases where there has been studied suppression or concealment by one side, which would amount to actual fraud, but also to many cases of innocent ignoranee and mistake on both sides.</p> <p>Where a contract was made under the persuasion that the Legislature of Pennsylvania and the Congress of the United States would pass laws, the one for the termination of the Erie Extension of the Pennsylvania Canal at the mouth of Elk Creek, and the other making appropriations for a harbour at the same point; and where the main and only inducement to entering into this contract was, the mutual expectation of the parties that the land immediately adjacent to the mouth of said creek would become the site of a great city, as the direct consequences of the improvements thereafter to be made at that place by the general and state governments ; it was held, that where the basis and inducement" to making such contract utterly failed, without any fault imputable to any person, it -would be contrary to equity to compel the payment -of the purchase money.</p> <p>Where a deed is sought to be made effectual, on an event unexpected to both parties, the party seeking to enforce it is unjust and inequitable in his demand.</p> <p>Where parties to a contract have presupposed some facts or rights to exist, or that they will thereafter exist, as the basis of their proceedings, which in truth do not exist, or are prevented from happening by unforeseen causes ending in mutual error, under circumstances material to their character and consequences,, such contract, on general principles, is inoperative and invalid.</p> <p>If a mistake have been made on the trial, either in the admission or rejection of evidence, or in the charge, which, it is apparent, did not prejudice the case of the exceptant, it is not error, for which a reversal will be decreed.</p> <p>Evidence, that there was no harbour at the mouth of Elk Creek, and not the slightest probability that one would be constructed, was relevant and admissible; as it went to contradict the representation of the vendor, that there was a harbour there.</p> <p>In an action to recover a part of the purchase money of lands sold, want of title in the vendor to the property, if proved, is a complete defence to the action in law and in equity, and evidence to show it is admissible.</p> <p>Where evidence has been admitted, whether it be secondary or not, or whether it were properly or improperly admitted, becomes immaterial, if the Court, in their charge, rule out the point of defence to which such evidence was applicable.</p> <p>If the Court allow a party to take out a portion of a deposition and part of a sentence, leaving what stands to convey a different meaning from what it would do with the context, it is palpable error.</p> <p>The journal of the House of Representatives of the United States, together with a letter of the Secretary of Wav, and a report of a Topographical Engineer, reported to the House in pursuance of a resolution, if properly authenticated, are evidence to prove, that there was no harbour at the point designated, and that it was practicable and in the contemplation of the government to make an artificial harbour there. But they ' are not evidence to prove, that third parties had knowledge of the facts contained in them, merely because they were the acts of authorized and accredited agents of the government, and such third parties are not bound to lake notice of them.</p> <p>The mere expression of opinion by a witness who was acquainted with Lake Erie and the harbours thereof, was not evidence of the practicability of making a good artificial harbour at the point designated, similar to those already constructed on the lake. The fact, that a good harbour could be made there, was evidence; but proof as to harbours and their construction elsewhere, was not admissible.</p>

Error, to the court of Common Pleas of Mifflin county. May 22. This was an action of ejectment brought by Georgé Mitchell against C. Landis, j. Bratton, and C. Bratton, for a tract of land, in Olive township-, Mifflin county. The facts of the case are presented in the charge of the court below, and in the opinion of this court.

<p>Error to the Common Pleas of Mifflin county.</p> <p>This was an action of replevin, brought by Joseph Alexander against Dennis and Hoybeck, for nine hundred bushels of potatoes. The evidence showed, that Mr. Alexander purchased the potatoes from a person on board a canal boat, at Northumberland, and paid ten dollars on the bargain; that when the boat came to Lewistown, where Alexander resided, the person from whom he bought was not on board, and that the defendants, admitting they were present when Mr. A. bought, claimed the potatoes themselves, by virtue of a prior sale to them by Mr. A.’s vendor, of which sale they did not think it was their business to give him notice. There was no evidence as to how or when the quantity of the potatoes was to be ascertained, as between Mr. Alexander and his vendor, other than an admission of Mr. A. that he was to give 62J or 65 cents per bushel for them delivered at Lewistown. Verdict and judgment for the plaintiff.</p> <p>Among the errors assigned here, was one, that «the court erred in not charging the jury that, if they believed there was no delivery of the potatoes to Alexander at Northumberland, and that the seller was to deliver them to Alexander at Lewistown, at 62| or 65 cents per bushel, the property, and right of immediate possession of it, would not pass to him, as long as the quantity remained to be ascertained.”</p> <p>cited 2 Kent, 492; 2 Miles, 492.</p>

<p>In an issue formed to try whether a judgment was fraudulent as to creditors; a judgment creditor of the defendant, who is not a party to the issue, may become a competent witness, by disposing of his judgment; provided the act was bond fide, and not dictated by necessity to give it effect, by his testimony.</p> <p>Where the issue was formed to try, on the pleas of non assumpsit and payment, with leave, &c., “whether any,and, if'any, what amount was due from the defendant to the plaintiff, at the time the judgment was confessed,” it was held, that, in strictness, the form of the issue was wrong, and that it should have been to try whether the judgment was collusive as to creditors, or not.</p> <p>Under the issue formed to try the questions involved in this case, the directions in the charge of the court, that a judgment fraudulent in part is void in the whole, as to creditors, was held not to be error.</p> <p>Where a plaintiff is not prevented, by the form of the issue, from putting forth the . strength of his case, and has not been prejudiced by the informality, he will not be permitted to assign it for error.</p>

May 25. This action was brought by Silas Alexander and Cyrus Alexander, for the use of Cyrus Alexander, the plaintiffs in error, against James Alexander, to recover money paid by the plaintiffs, for the use of the defendant.

May 27. This was an action of dower unde nihil habet, brought by Elizabeth Simpson, late Elizabeth Smith, widow of James Smith, deceased, the defendant in error and plaintiff below, against William A. Thomas, the'defendant below and plaintiff in error.

May 28. This was an action of ejectment, brought by Samuel Hepburn, the plaintiff in error, who was plaintiff below, against John Snyder and others, for the undivided third part of three thousand acres of land, in Lamar township, Clinton county. The action was instituted, as appeared by the paper book, to compel the specific execution of an agreement between the plaintiff and one Tunison Cor-yell, under whom the defendants held.

June 1. This was an appeal by John Foster from the decree of the Court of Common Pleas of Centre county, distributing the proceeds of sale of the real estate of Ephraim Hockman, in the hands of the sheriff. The facts in this case are so fully and clearly presented in the opinion of this court, delivered by his honour, Judge Burnside, that a statement of them here is deemed superfluous.

<p>To make the declarations of the obligor in a bond evidence to affect its validity, against the obligee, they must be accompanied with proof of such confederacy between the parties, as would, in, other cases, make the. acts of one the acts of the other.</p> <p>When a conspiracy, between the obligor and a third person to defraud the creditors of the obligor, has been satisfactorily proved, it:may be shown, that the obligee engaged in it subsequently, by less than proof of express declarations, or flagrant acts of participation.</p> <p>When it appeared, by the proof of a conspiracy between the obligor and such third person, that the obligee was to h,e a principal actor in the execution of the plot, and he performs the part assigned ; i him in it, by arriving at the house of the obligor, who was his brother, making a fo¡ -nal settlement with him, and receiving the bond, which is entered up just on the nick of time to take precedence of the other creditors, who were then preparing to pounce upon the - property of the obligor, it was held, that these facts, combined with the consanguinity of the parties and the desperate circumstances of the obligor, were proper to be lef| to the jury, as circumstantial evidence of collusion.</p> <p>In such a case, the intrinsic evidence of the whole transaction may properly be left to the jury, to connect the obligee with the original scheme; and such evidence, in connection with the acts of the obligee, is sufficient to shift the burden of exculpatory proof upon the latter.</p> <p>Where a daughter of the obligor, who proved the execution of the bond after a settlement at which papers were used and calculations made, farther testified, that her father said, he had borrowed §800 from her uncle, and that the latter afterwards said, he had lent her father an additional hundred, and where none of the papers or calculations were produced at the trial, nor any attempt made to account for the residue of the consideration, amounting to §5000, such evidence, although by no means entirely demonstrative of fraud, was proper to be left to the jury.</p> <p>In such a case, testimony to prove the circumstances of the obligor was competent.</p>

June 3. This was an action of debt on surplus bond. On the 11th day of June, a. d. 1838, Christian Thudium, the plaintiff in error, and defendant below, became the purchaser of a tract of unseated land in Toboyne township, Perry county, warranted in the name of Waters Dewees, for the sum of $60, sold by David Deardorf, treasurer of the county, for the non-payment of taxes.

June 4. Action of trespass for mesne profits. Edward Shippen and Joseph Shippen, by deed, dated the 2d day of June, 1794; conveyed a lot of ground, in the borough of Shippensburg, &c., to John Means and Robert McCall, in trust, for the Mse of the Associate Reformed Presbyterian congregation, at Shippensburg, for a place o'f public worship, for ever, and for no other purpose.

<p>Deeds, for the separation of husband and wife, are valid and effectual both in law and equity; provided, their object be actual and immediate, and not a contingent or future separation.</p> <p>Where articles of separation under seal, between husband and wife, contemplate an immediate separation, and are carried into effect in good faith by the husband, and contain nothing unreasonable ; the wife, after the death of the husband, will not receive the aid of a court in any attempt to violate them.</p> <p>A wife can acquire a separate estate, which a court of equity will protect.</p> <p>At law, no contract can be made between husband and wife, without the intervention of trustees; but in equity, where the contract is reasonable and has been consummated, it will be sustained without such intervention.</p>

<p>One, who voluntarily pays money by mistake to another who claims it as a debt, may recover it back, only where the payment was made in a mistake arising from misconception, error or ignorance of fact, and ,not where he alleges a mistake of the law merely.</p> <p>One person will not be allowed gratuitously to alter the position of another and affect his rights and liabilities, by voluntarily assuming to understat'd his own legal, duties, and after paying a claim on the .footing of such assumption, to draw it into question upon the allegation of a mistake of his duty.</p> <p>The legal effect of an attachment laid upon a debt is, to restrain the garnishee from paying over the money, either to his individual creditor or to the attaching creditor, until the attachment is disposed of, and* then only according to the result of that proceeding.</p> <p>Where, after the service of the attachment, the individual creditor of the garnishees filed his petition, and was subsequently declared a bankrupt; it became the duty of the garnishees to notify the assignee of such bankrupt of the attachment, to enable, him, if he claimed the money, to become a party to it, and then wait its determination.</p> <p>But where the garnishees paid over the money to such assignee while the proceedings on the attachment were pending, and gave no notice of the attachment to the assignee until after he had filed his account in the United States Court, charging himself with the money, a period of nearly .two years from the time he received the same; it was held, that under the circumstances such a case of laches on the part of the garnishees was-presented, as would go far to deprive them of the right to recover back the money, even had it been paid under a mistake of fact.</p> <p>A subsequent promise by the assignee to pay the money back, if there were a consideration for it, amounted to no more thán a consent to return the same, if under the circumstances he would be justifiable in doing so.</p>

<p>A decision of the board of property upon a caveat, is final and conclusive upon the rights of the parties, unless an ejectment be brought by him against whom it is made within six months; and this, whether the parties claim under warrants or improvements.</p> <p>It is the duty of a deputy-surveyor to note on his return of survey, any interference or adverse claim; and this operates as a caveat against accepting the survey, and prevents the surveyor-general from granting a patent, without notice to the parties claimant.</p> <p>The duty of a deputy-surveyor to note an interference or adverse claim, did not originate under the act of 1802. That act is but a recognition of a practice to that effect, which had obtained before its enactment.</p> <p>The act of the 22d of January, 1802, has no operation, so far as regards the limitation ^ of six months, within which time ejectment must be brought; but for the reasons set forth in the preamble of said act, it provides, that «no caveat, note or survey, or writing in the nature of a caveat,” shall continue to bar the issuing of a patent to the person against whom such caveat may be entered, for a longer period than two years, unless proceedings under the act be commenced by the parties interested, within that time.</p> <p>Under this act, there is no hearing or action by the board of property, and, therefore, no room for the operation of the limitation created by the act of 1792.</p> <p>Where a deputy-surveyor made the following note on the warrant or survey of A., « The above described tract of land is claimed to be held on warrants by the heirs of B.f it was held, that such Teturn was too general, although it operated as a caveat, and required the action of the board of property.</p> <p>The proceeding on a caveat before the board of properly assumes the form of an action, to which there must be proper parties.</p> <p>Where the parties to proceedings before the board of property were stated thus: « The heirs of A. against B. on caveatit was held, that the case, in such form, was not in a state for trial, and that the names of the heirs should have been ascertained by B., and they made parties to the proceedings.</p> <p>In such case, notice served on the widow, and on two of six heirs of the testator, was held, not to be sufficient; and that, under proceedings so irregular, those served with notice were not bound to appear, although, had all the heirs appeared, such irregularity would thereby have been cured.</p> <p>Where a testator, by his will, devised all his real estate to his executors, for a special purpose; it was held, that the executors were vested with a power over the real estate, coupled with an interest and a right to its possession, beyond the control of the heirs of the testator, and that, in such case, the proper parlies to proceedings on a caveat were the executors, and on them the requisite notice should have been served, quasi executors.</p> <p>In such a proceeding, where the heirs are made the parties, the executors have a right to disregard the service of notice upon them; aud if they do not appear, the dismissal of the caveat and the granting of the patent, will not bar their right to recover, in an action of ejectment brought by them, as executors, against the patentee.</p>

June 8. This was an action of trespass, brought by David White, the plaintiff in error, who was plaintiff below, against Henry Cooper, late sheriff of Perry county, for levying upon and selling a Store of dry goods, under sundry executions against Wilson Welch.

<p>A., by her last will, gave and bequeathed thus: “ I give and bequeath to my son B., and to his heirs and assigns, all the residue and remainder of my estate, of whatsoever kinds the same may be,'Subject to the maintenance of my son Joseph, for and during his natural life.” B., who was also the executor, having received money of the said estate, purchased a tract of land, which he afterwards sold to C., and took from him two bonds for §891 each, to secure the payment of part of the purchase money. Some time after- ' wards, B., being indebted, made an assignment for the benefit of his creditors. Held, that in an action brought to recover the amount of the said bonds, in the name of B., for the use of his assignees, the declarations of B., made whilst he was the owner of said lands, that he had bought the same with mohey bequeathed to him for the maintenance of his brother Joseph, were evidence against B.,'the legal plaintiff, and also against his equitable assignees, who stood in his place.</p> <p>The assignees of'B. having taken his place in regard to the said’ bonds, a chancellor would compel them to execute the original trust, at the instance of the cestui que trust, or his legal representative, as readily as he would compel B. himself to execute it.</p>

- June 8. Amicable action* to try, whether Jeremiah Latshaw or Gro.ve had the right to a judginent against, one Garber, at the suit of Joseph Latshaw, entered to the use of Grove.

June 9. This was an action of debt on an award of, referees, brought by John Hume, the plaintiff in error, against Samuel Hume, to recover two certain sums of money payable by the defendant to the plaintiff, under said award.

<p>Statutes of limitations do not extend to the Commonwealth; and’ this rule applies as well to personal actions «against a surety on an official bond, as to entries on land, and similar cases, unless the Commonwealth be expressly named and her rights thereby-waived.</p> <p>A judgment in the name of a treasurer for the Use of the Commonwealth, is substantially a judgment for the Commonwealth; and is exempted from the operation of the statute ¡uniting the period for which a judgment shall continue a lien on lands.</p>

<p>In an action on a bond against one of two joint and several obligors, the obligor not sued is a competent witness for the defendant under the plea of non est factum.</p> <p>But if his testimony do not sustain the plea, the judgment will not be reversed, although the witness was rejected.</p>

June 10. This was an appeal by creditors, who claimed under the official recognisance of the sheriff, from the decree of the Court of Common Pleas of Perry county, appropriating the money raised by a… Held: that a lien in favour of the Commonwealth is not discharged by a judicial sale; as such sales are subject to such liens.

<p>In error from the Common Pleas of Cumberland county.</p> <p>June 10. This was an ejectment by Biddle, to enforce by a conditional verdict, as stated in a written offer filed on tbe trial, the payment of certain debts due by himself and his vendee, John Moore, under whom defendants claimed, which, on dissolution of the partnership between them, Moore had agreed to pay; and also to enforce payment of the purchase money due under the articles.</p> <p>The property claimed in the suit consisted of the Big Pond Furnace estate, which had been vested in Moore & Biddle, as tenant's in common • and a right to dig ore in other land, which was in Biddle solely. .</p> <p>By the articles of dissolution it was agreed, that tbe estate of Biddle, claimed here, should be vested in Moore on certain conditions. The articles ran thus:—</p> <p>“Agreement made the 21st day of January, 1839, between Edward M. Biddle of the one part, and John Moore of the other part, witnesseth, that the. partnership heretofore existing between the said parties, under the name of < Moore & Biddle,’ is hereby dissolved; and the said E. M. Biddle doth hereby agree to sell and convey to the said John Moore all his right, title, and interest of, in, and to the Big Pond Furnace, and all the rights, lands, and tenements and appurtenances, ore banks, privileges, &c., thereto in any manner attached, viz., pig-metal, iron, stock, horses, wagons, carts, and implements thereto belonging and used in the ordinary business of said furnace. Also the ore bank conveyed by Abraham Seevers to E. M. Biddle, called the Pond Bank, all debts due to said firm of Moore & Biddle, and any and every property, real, personal, and mixed, belonging to said firm.</p> <p>“In consideration whereof, the said John Moore doth hereby covenant and agree, to pay and assume the responsibility of all the debts, dues, and demands which are now due and owing by the said Moore & Biddle, or for which they are in any way liable, except as follows : The sum of $2000, (a part of a debt,) due to the Southern Loan Company, Philadelphia; the sum of $1000, or thereabouts, due to the borough of Carlisle; a debt due to N. W. Woods, of about $1200, and now in the hands of Charles B. Penrose, Esq., for collection; also a debt due the Carlisle Savings’ Fund Society, for $800; amounting in the -whole to about $5000; which said several debts the said E. M. Biddle doth hereby covenant and agree to pay; and to enable him to do so, he, the said E. M. Biddle, is first to receive the notes of Jennings & Craig, of Philadelphia, and of C. Sellers & Sons, of Philadelphia, (for the payment of pig-iron, part of which has been delivered them, and part yet to be delivered, per contract,) for the above amount of $5000. The proceeds of the notes thus to be received shall be, by the saidE. M. Biddle, applied to the payment of the aforementioned debts in full, so as to discharge the said John Moore from any liability from the same ; and in case of the failure of either Jennings & Craig or Sellers & Sons to pay their paper at maturity, the said E. M. Biddle is not to have recourse to the said John Moore to make good any part of the same; the said E. M. Biddle assuming the responsibility individually for the amount, as soon as he shall receive the forementioned notes. And the said John Moore and Edward M. Biddle do mutually covenant, that neither one nor the other shall continue to be liable for the debts payable and due by the firm of Moore & Biddle, for a longer time or period than the first day of April, 1840; that before that time each shall either pay or arrange the debts payable by him, so that the other shall be discharged therefrom. And the said John Moore does further covenant and agree, to pay to the said E. M. Biddle the sum of $2000, as follows: $1000 payable on the 1st April, 1841, $500 on the 1st April, 1842, $500 on the 1st of April, 1843; and upon the payment of the first thousand by the said John Moore, then the said E. M. Biddle is to make a general deed of conveyance to the said John Moore, his heirs and assigns, of all his interest in the Big Pond Furnace, lands, and estate; the said Moore also agreeing to give him bonds and security for the future payments. On the execution of this agreement, said Biddle is to deliver up to said Moore all possession, papers, &c., connected with the Big Pond Furnace estates.</p> <p>“If the notes of Jennings & Craig and C. Sellers & Sons should not amount to the debts which E. M. Biddle hereby agrees to pay, then the said John Moore hereby agrees, that he will pay such balance as may remain after the appropriation of the amount of said notes. Witness the hands and seals of the parties, the day first written E. M. Biddle, [l. s.]</p> <p>John Moore, [l. s.]”</p> <p>Pursuant to the agreement, two notes of C. Sellers & Sons, at six months — one of February, 1839, for $1100, and the other of 18th March, for $837 36 — were delivered to Biddle. The latter of these was applied in payment of the debt due the Savings’ Fund, mentioned in the articles. The former was discounted in bank, and the proceeds applied to the borough of Carlisle debt, also in the articles. Judgment was had against Biddle on the endorsement by the bank, in which Moore entered bail in stay of execution. The debt was paid out of the proceeds of Moore’s property, under a sheriff’s sale subsequently mentioned.</p> <p>The plaintiff gave in evidence a judgment against Moore & Biddle, on a note of Jennings & Craig, for $750, in 1845, by the Bank of the United States, by which it had been discounted for the use of Moore. This debt was one which the plaintiff sought to recover in this action, by specific direction, in the conditional verdict.</p> <p>The defendant’s first exception was to the admission of evidence of a judgment by Keller against the firm, in 1844, for $55 86, paid by Biddle.</p> <p>The plaintiff’s first exception was to the rejection by the court of an account between Woods and the firm, and also the evidence of Woods himself to prove a debt due from the firm. Evidence of this debt, embracedinthe agreement, due from the firm over and above the payment -by Moore as hereafter stated, and a settlement by Moore & Biddle, February 9th, 1844, of the amount of the consideration due under the agreement, coupled with proof, that the debts now offered to be proved (one was admitted, as wrill presently be seen) were embraced therein, was also rejected, and constituted the third exception of plaintiff. It seemed, that this was a different one from that which Biddle was bound by the articles to pay, as it was subsequently proved that that particular debt was paid by Moore.</p> <p>The defendant’s second exception was to the admission of proof of a debt due from the firm to Barnitz. Suit had been brought, but there was no narr, &c. The objections were for this reason, and also that it was controverted and could not be tried in this suit. This was one of the debts for which, specifically, recovery was had.</p> <p>Moore, the defendant, was a tenant of John Moore. The real defendants were Martin and Seevers, who claimed title as purchasers at sheriff’s sale. The Southern Loan Company having brought suit against J. Moore, in 1841, obtained judgment and issued execution. In 1843, a venditioni issued for the sale of the property now7 in question, with many others. Some of the latter were sold, and the sale adjourned. Another partial sale took place in November, and in December the furnace, &c., was sold to the real defendants here.</p> <p>They then gave evidence of knowledge by Biddle, that the property was advertised as the property of Moore, and also that Biddle was present at the first attempt to sell, and gave no notice of any claim. There did not appear any direct evidence that he was present at the time the sale was affected.</p> <p>They also proved the application of the proceeds to the payment of the judgments of the Southern Loan Company, the balance due the borough of Carlisle, and to the residue of the claims which Biddle agreed to pay but did not; that the particular debt of Woods mentioned in the agreement was paid by Moore.</p> <p>The plaintiff then proved, that under the advice of his counsel, he had abstained from giving notice of his claim at the sale, as the amount was uncertain, and that he was directed not to come to the sale, by his counsel.</p> <p>It appeared pretty certain from the evidence, that Biddle was not present. C. Moore, the defendant, and tenant of J. Moore, stated, he had some conversation before the sale, with Martin, who spoke of Biddle’s claim to the works; and also that he had a conversation with Seevers, before the sale, and that he, Seevers, was aware Biddle had a claim; that afterwards he said, he knew all about it, and did not care about it. The witness also said, he did not fully explain the claim; did not know the amount bel ween the parties; did not know what Seevers’s and Martin’s understanding of Biddle’s claim was; they did not tell him what it was. His character for truth was the subject of much evidence.</p> <p>The plaintiff’s and defendants’ points, and the answers by Hepburn, President J., contain the charge of the court, and the grounds on which the parties respectively relied; and so far as excepted to, were:—</p> <p>The court refused the instructions prayed for in the defendant’s 3d, 4th, and 5th points, vi?.:</p> <p>“ 3. As the plaintiff cannot recover the privilege of the ore bank, as conveyed by Abraham Seevers to Edward M. Biddle, he cannot thus separate the property into parts, so as to render both useless in separate hands, and enforce specific execution as to a part by ejectment.</p> <p>“4. As all the debts are paid enumerated in the articles of agreement to have been paid by Edward M. Biddle, this ejectment cannot be sustained to enforce the payment of any other debt of the firm assumed to be paid by John Moore.</p> <p>“5. No conditional verdict can be rendered in this action in favour of the plaintiff, to be released on the payment of any such debts to the respective creditors, nor to Edward M. Biddle, nor generally according to plaintiff’s proposition.”</p> <p>6. Withdrawn.</p> <p>“ 7. The defendants cannot -in this suit be called on to investigate and try all claims which the plaintiff may choose to present against the firm, without previous notice of the existence of such claims. They are not and cannot be prepared for such purpose; and since the first of April, 1840, that is a matter between the creditors and John Moore, over which Edward M. Biddle has no control ; and any determination in this suit of sums supposed to be due to creditors would not be binding on them ; nor would it facilitate the recovery or add any new security for their claims; for the estate of Edward M. Biddle, if he have any, is as liable without, as with a recovery in this action; the payment of such debts cannot therefore be enforced in this suit.”</p> <p>Answer. — £‘ The first two sentences of this point we assent to ; but we cannot instruct you, that the debts due by the firm of Moore & Biddle, when this agreement was made, are matters in which the creditors of that firm and Moore have the exclusive interest. Edward M. Biddle has an undoubted interest in being relieved from the debts of the firm, against which he had provided in his article of sale to Moore; and he can by this action enforce the payment of such of them as he has been legally called on to pay, such as suits have been brought against him for, as part of the consideration money for which he sold this property. But the defendants are not, nor do we think they could be, called upon to pay any, and every debt, that existed when this agreement was made; and which have since become barred by the statute of limitations, and which have never been legally or adversely demanded from Edward M. Biddle. Debts of this character, when offered in evidence, were rejected by the court, and consequently are not read before you. We said then, and now repeat, that no voluntary payment, or assumption by Edward M. Biddle, of debts assumed by John Moore, under their article of agreement, wrould enable Biddle to recover them in this action; which is for the specific execution of that contract. If Biddle chose to vary the terms of it, by assuming the payment of debts he was not compelled to pay under it, he cannot enforce their repayment against the land in an action for the specific execution of the original agreement, after the property has passed into other hands, and after those debts are barred by the statute of limitations. The sums supposed to be due, in the language of this point, w'ould not be binding on the plaintiffs, if they choose to institute personal actions for their recovery. But so far as the evidence is before you, we have not rested on supposition. One of the claims has been liquidated by an adverse suit and judgment actually entered. The other is fixed by the plaintiff’s claim in his suit for its recovery, and the amount, as proved by his counsel, not disputed. A recovery here might or might not facilitate a recovery in those suits, or add a new security to the creditors ; but whether it does so or not, is not the main question in this cause. It is the rights of Edward M. Biddle that are sought to be protected here; and your verdict, if in his favour, though it may not add a security, or facilitate a recovery by the creditors of Moore & Biddle in actions against that firm, will unquestionably secure Biddle from any positive loss on account of these debts, by compelling their payment, or restoring to him his portion of the property sold, if they be not paid within the time limited by you in your verdict. The estate of Edward M. Biddle would be liable for the judgments obtained against him and Moore, but certainly not to the extent it would be, if a recovery is had by him in this suit. We cannot instruct you, that the payment of the debts, so far as admitted in evidence, cannot be enforced in this action. On the contrary, we think they can, and so instruct you.”</p> <p>Eighth point. — “ If the plaintiff should obtain a verdict in his favour to be released on the payment of a large sum of money in a given time to creditors; if not paid in the time specified, the title would become absolute in the plaintiff. He could then contest the claims of the same creditors, and if he should defeat them, he would hold the land in fraud of the rights of the defendants.”</p> <p>Answer. — “ We assent to the first branch of this point. But it is out of the power of the plaintiff now to contest the payment of th.e United States Bank. The sum is fixed by a judgment, and that is binding; and if Barnitz’s claim be defeated on a trial, the bond to that extent would be relieved; for the court would, even after your finding, have such a controlling influence over the verdict as to prevent money from being paid on it, that had subsequently been determined wrong and improper. But as to the amount of Barnitz’s claim, there seems really to be no dispute; and the evil anticipated, if there be one, seems only to exist in imagination as to what might happen under certain circumstances, rather than what is honestly feared in reference to that particular case.”</p> <p>Ninth point. — “Edward M. Biddle having engaged in his contract with John Moore, that upon the payment to him of the first $1000, on the 1st of April, 1841, he would give him a deed, &c., per agreement; and JohnMoore having overpaid him in the said sum of$1000, viz., having paid him $1100, with interest, from the 7th of June, 1838, he thus coupled himself to the deed, and is now to be considered in possession of the lands under the deed. The plaintiff cannot therefore recover the possession of the lands in this action. The plaintiff cannot complain of John Moore’s not having given bonds and security, because he has never got a deed, nor was one ever tendered.”</p> <p>Answered in the negative,</p> <p>Tenth point. — “By the agreement of the parties, Edward M. Biddle could in no event hold the legal title as a means of enforcing payment of more than the first instalment of $1000 to him; and that being paid, he cannot recover the bonds in this action. For the performance of the residue of the contract, the parties stipulated the manner of performance, and the plaintiff can only look to his contract and an action upon it; and unless the plaintiff tendered a deed before suit brought, he cannot recover.”</p> <p>Answered in the negative.</p> <p>Eleventh point. — “If the jury believe the testimony of Carson Moore, that he had conversations with Sheriff Martin and with Abraham Seevers, before and after the sheriff’s sale, about Mr. Biddle’s claim and about the amount of the partnership debts for which the property was liable, as he detailed the facts in evidence; and he did not know, nor inform them of the nature of the claim of Edward M. Biddle, whether it was a lien on the land or a title to it, and if a title, under what circumstances held — nor the amount — it would neither constitute notice to Seevers and Martin, actual or constructive ; and so would not defeat the defendant’s defence in this particular, nor enable the plaintiff to recover. To affect the defendants with notice, the law requires, that it must have been given by the party interested in the property, and in reference to the sheriff’s sale of it. Vague reports from persons not interested in the property, nor knowing the facts, will not affect the purchaser’s conscience; nor will he be bound by notice in a previous transaction which he may have forgotten. A mere assertion of Carson Moore that Mr. Biddle had a claim or encumbrance, &c., was insufficient to affect the purchasers with notice.”</p> <p>Answer. — To affect a party with notice, it must be given by one interested in the property, and in reference to a sheriff’s sale of it. Vague reports from persons not interested in the property, nor knowing the fact, will not affect the purchaser’s conscience, nor will he be bound by notice in a previous transaction, which he may have forgotten. But if notice of facts, in reference to the title of a tract of land about to be sold by the sheriff, be given by the tenant in possession of that property to the person who contemplates buying it, and he fails or neglects to follow it up by proper inquiries, at the proper place, he acts upon his peril, and must reap the consequences. The mere assertion of Carson Moore, that Mr. Biddle had a claim or encumbrance, was insufficient to affect the purchasers with notice of that claim; but if they knew of the claim, and so stated, it is sufficient ; and if knowing it, they failed to make the necessary inquiries in reference to it, so as to perfectly understand it, it is their own fault, and they have nobody else to blame.</p> <p>Twelfth point. — “ If Edward M. Biddle was present at the sale and gave no notice of his claim, or, if not actually present, he resorted to any means to procure the purchase to be made in ignorance of his claim, he cannot recover in this action.”</p> <p>Answer. — This is the law.</p> <p>(This was not the subject of exception, but is noticed in the opinion of this court.)</p> <p>Thirteenth point. — u If the property in dispute was levied on and advertised as the property of John Moore, after the terms of dissolution published, and offered by sale by public outcry on the 14th of October, 1843, by the sheriff, and on the 4th of November, in the same year, as the property of John Moore; and Paul Martin and Abraham Seevers were present; and Edward M. Biddle was present when the property was offered, and talked on the subject to Mr. Todd, as testified, and no notice was given by Mr. Biddle of any claim upon the property, and the property was afterwards advertised and offered, and cried for sale in the same way; and Edward M. Biddle knew that it was to be again offered for sale, and he absented himself at the time of sale appointed, for the purpose of avoiding giving notice of any claim he had; and he did nothing by act or deed to repel any presumption that -would arise from his presence at the former attempt to sell: if Abraham Seevers and Paul Martin became the purchasers under such circumstances, the plaintiff cannot recover.”</p> <p>Answer. — “The case of Epley v. Witherow, we think,has gone as far as the law will ever go in Pennsylvania. That case falls short of the prayer of the defendants in this point. Entertaining the opinion expressed, we decline giving you the instructions desired.”</p> <p>Plaintiff’s points. — 3d. “ That the plaintiff, Edward M. Biddle, had a right to retain the legal title of his interest in the property sold, as a security for the performance of the contract by John Moore; and that this action is the proper form to recover the property, or secure the payment of the consideration money.”</p> <p>Fourth point. — “ That Edward M. Biddle was not legally, or in duty bound to attend the sale of the property by the sheriff, or to 'give notice of his title; and if he was not actually present when the property was sold, he is not at all affected by the absence of actual notice.”</p> <p>Fifth point. — “That the plaintiff is entitled to a verdict; tobe rendered upon the payment of the purchase money and debts due according to the following calculation:”</p> <p>The instalments of $1000 and $500 respectively due the 1st of April, 1841, 1842, 1843, with interest to January 13, 1846, (apparently the day of trial.) The debts due Keller, Barnitz, and the Bank of the United States, allowing a credit for the amount of the Sellers’ draft paid out of Moore’s property, with like interest.</p> <p>Answer. — “ If under the evidence in the case, as applied to the law stated to you by the court, you find for the plaintiff, he is entitled to your verdict to be released upon the payment of the sums stated in this point in the manner there indicated, (if the calculations are right;) within such reasonable, time as, under all the circumstances of this case, you think will do justice between the parties.”</p> <p>The jury found for the plaintiff, &c., “ to be released on the payment to him of $1025 99, and $150 92 to Charles Barnitz, and $1060 23 to the trustees of the Bank of the United States, on the 1st of July, 1846, -with interest from this date, with six cents damages and six cents costs.”</p> <p>The plaintiffs assigned for error the non-admission of their evidence. The defendants, the admission of the evidence as to Keller and Barnitz’s claims, and the answers to plaintiff’s points; the answer, or refusal to answer, defendant’s points given above; and also that the verdict was illegal, as it affects and embraces the interest's of strangers to the action.</p> <p>contended, that the plaintiff was entitled to no verdict; but certainly none such as he himself asked for, and as the court instructed the jury to find.</p> <p>That this form of action was adopted from necessity only, (8 Serg. & Rawle, 418,) and it had been the subject of much complaint, that proper powers were not given to obviate it. This was now done, and the courts could proceed in a regular manner by bill in chancery.</p> <p>That a statutory remedy having been provided, it must, under the act of 1806, be followed, and the former anomaly abandoned, for there cannot be concurrent remedies of this character in law and equity. 3 Wheat. 187.</p> <p>That on the settled principles of our law there can be no recovery; for Moore was to pay but $1000 before he got his deed, and that amount having been paid, he is to be considered as having already the legal title, and consequently that cannot be used against him for any purpose. Brown v. Metz, 5 Watts, 164; 2 Penna. 145. And though this amount was paid after suit brought, there could be a recovery for costs only. 10 Watts, 222; 5 Watts, 272.</p> <p>That under any circumstances this verdict was defective, as it was in favour of persons not parties, which cannot be allowed; 4 Bla. Com. 377; 2 Atk. 51; 3 Johns. Ch. Rep. 311; for those persons would not be bound by this proceeding.</p> <p>These creditors have no right to go into chancery; for until they have obtained a verdict and judgment at law, they will not be recognised there. 1 Eq. Dig. 339, 346 — 349,412; 4 Johns. Ch. Rep, 671; 2 Johns. Ch. Rep. 283, 141 — 144.</p> <p>The ejectment could only be used where it would restore the parties to their original position, (7 Watts, 139,) which cannot be done here.</p> <p>That the court erred as to the effect of want of notice. The presence of the party at the offer to sell as the property of Moore, without giving notice, coupled with his knowledge of the intention to sell in that way, raised a presumption of his acquiescence.</p> <p>The cases of Sutherland v. Perry, 2 Penna. Rep. 145, and Brown v. Metz, cited by the counsel for Moore, are inapplicable to this case. In Brown v. Metz, the vendor was bound to make a deed before the third bond was payable, and it was held, after the payment of four bonds, that the vendor could not recover without having tendered a deed before suit brought. Both these cases proceed on the principle, that the vendor having covenanted to convey upon the payment of a certain portion of the purchase money, which was paid, the detention of the title by him was wrongful and against his covenant. But here Biddle has performed his covenants; and Moore, the vendee, has violated his in every particular. That a plaintiff having a title to recover at law, may tender satisfaction of an equity at the trial, is established in Snyder v. Wolfley, 8 Serg. & Rawle, 332. He may hold the title as a security for the purchase money, and use it as an engine of specific performance, without a tender. Smith v. Webster, 2 Watts, 478. As to the objection to the suit and to the verdict rendered, they cited Lessee of Black v. Hepburn, 2 Yates, 333 ; Stephenson v. Clippinger, 6 Watts, 420 ; Youst v. Martin, 3 Serg. & Rawle, 432; Seitzinger v. Ridgway, 9 Watts, 496. This ejectment is virtually a bill in equity, entrammelled by forms or technical objections. The court, through the medium of a jury, can do whatever a chancellor could on a bill for a specific performance. In relation to the knowledge of the defendant of the plaintiff’s claim, they cited.Lewis v. Bradford, 10 Watts, 67. Martin and Seevers knew the fact. It had been communicated to them by the tenant on the land. Biddle was not at the sale. This was determined by the jury. There is reason to doubt if he were present at a former time, when the property was offered but not sold; but if he had been, it would not have concluded him. It is said, in Epply v. Witherow, 7 Watts, 167, that a purchaser is not bound by a notice in a previous transaction, which he may have forgotten. He cannot, therefore, have the benefit of an estoppel against the owner, for not giving a notice at such previous sale; when he, the purchaser, would not have been bound by it had it been given. The questions on the part of the plaintiff below resolve themselves into this: can Martin have the benefit of the plea of the statute of limitations against such of the creditors of Moore & Biddle as hold claims barred by the statute, if pleaded ? In Stub v. Leis, 7 Watts, 43, it was held, that in an ejectment by the vendee, on articles of agreement to recover the land, where the vendor makes no objection to the execution of the contract, it is not competent for the defendant, being a terre-tenant, and claiming title, to set up a defence, that the plaintiff has not performed his contract with the vendor. Then why give the terre-tenant the benefit of the statute, where the partners, who are parties to the agreement of sale, are not disposed to take advantage of it? Hesser v. Steiner, 5 Watts & Serg. 476. In assumpsit, on a promise to pay the debt of another in consideration of forbearance, the fact, that it was barred by the statute of limitations, furnishes no defence; for non constat that it will be pleaded, and the act of limitations can only be taken advantage of by the person to be affected by it. Martin cannot therefore compel Moore and Biddle to plead the statute. There is no more hardship in his case, than in that of the person who promises to pay the debt of another. It is sufficient to show an existing debt; non constat that the act of'limitations will be pleaded.</p>

<p>Error to Common Pleas of Franklin county.</p> <p>June 11. This was an action of replevin, brought by Helser & McGrath, the plaintiffs in error, against Pott & Shreiner. Pott avowed for rent in arrear, and Shreiner, the other defendant, who was a constable, made cognisance, &c. The plaintiffs replied, no rent in arrear, non tenuit, and that Pott liad no estate in the premises. The facts of the case, as slated in the opinion of this court, delivered by his honour, Judge Rogers, are these:—</p> <p>William Pott was the owner of the Warren iron-works, in the county of Franklin, which, by articles of agreement, dated the 1st of April, 1836, he sold to William Bowers. For certain considerations therein mentioned, Pott agreed to convey the tract of land, with the appurtenances, to Bowers, retaining, as the security for the unpaid purchase money, the title in his own possession for a time not to exceed fifteen years. Bowers took possession of the property, paid part of the purchase money, and Pott retained the title, according to the contract. On the 1st of April, 1841, Bowers leased the property, consisting of a forge, furnace, and saw-mills, with the appurtenances, to Benjamin Fisher, for five years; in consideration whereof, Fisher bound himself to pay to Bowers the sum of $800, yearly and every year during the continuance of the term, payable in bar-iron of good merchantable quality, drawn to order, at $5 for one hundred pounds at the works; no iron to be drawn less than one half inch by an inch and a half, &c. On the 21st of January, 1842, Bowers being largely indebted, assigned his property for the benefit of his creditors, to the plaintiffs, Helser & McGrath. After providing for creditors of the first class, the deed of assignment proceeds thus: “For the second class, all the other creditors of the said William Bowers to be equally paid, as far as the said effects herein assigned will pay and satisfy, except William Pott, Esq., who is a large creditor of the said William Bowers, holding the title for the unpaid purchase money of the furnace and forge tract in said township of Warren, containing three hundred acres or thereabouts, and about sixteen hundred acres of mountain land, situate in said township ; and the said William Pott having a lien on the same for the balance of the purchase money, amounting to the sum of $12,000, or thereabouts, to which, said property and the proceeds thereof are appropriated, and which said William Pott, as a creditor, is postponed to the creditors of the second class, under this trust.” It further appeared, that Benjamin Fisher, the tenant, being insolvent, on the 5th day of May, 1842, his stock, consisting of iron ore, coal, &c., was sold by the sheriff to James Dickey, who sold the same to the plaintiffs. Helser & McGrath took possession of the premises, and agreed, that they would work up to the best advantage the stock bought of Dickey, and that, after all the liabilities and expenses for working and purchasing the stock were paid, they would pay the balance to William Pott, on the note of Bowers & Fisher. On the lease from Bowers to Fisher was the following endorsement:—</p> <p>“ We, the undersigned, promise to comply with the wdthin article, so long as we carry on the iron-works, by being released, as to the rents, at any time we see proper to give up the iron-works, which rent we agree to pay to William Pott, by Mr. Bowers’ order, and which works we will give up on the first day of April, 1844.</p> <p>(Signed,) Solomon Helser,</p> <p>William McGrath.</p> <p>«May 12th, 1842.”</p> <p>On the trial, the defendants offered in evidence the article of agreement, dated the 1st of April, 1836, between William Pott and William Bowers; also the deed of assignment, dated 21st of January, 1842, from William Bowers to Solomon Helser and William Mc-Grath; and also the lease, dated 1st of April, 1844, from William Bowers to Benjamin Fisher, together with the agreement endorsed thereon, signed by Solomon Helser and William McGrath, dated the 12th of May, 1842. To reading the said lease and agreement thereon to the jury, the counsel of the plaintiffs objected. The court overruled the objection, admitted the same in evidence, and sealed a bill of exceptions, which constituted plaintiff’s first bill. They then called William Bowers as a witness.' The counsel of the plaintiffs objected to his competency; whereupon he was sworn upon his voire dire, and said, “I have not any claim to the land. I have no claim or title to the land, further than that article of agreement. I have paid on the article the amount credited. I have given up the land to Pott. I have built a barn on it this summer for Mr. Pott. Mr. Pott holds me liable for rent, and the building of the barn is to be taken out of the rent. I have no written agreement with Pott on the subject.” The counsel of the plaintiffs continued their objection to the witness, when he executed a release at bar, dated the 31st of October, 1845, which was read to the court; whereupon, the court overruled the objection to the witness, and directed him to be sworn in chief. This decision of the court constituted the plaintiff’s second bill of exception.</p> <p>On the part of the plaintiffs, inter alia, a paper, dated the 13th of May, 1842, and marked (A), was offered in evidence, of which the following is a copy:—</p> <p>“I do hereby agree and bind myself, that I will not in any way hold Solomon Helser and William McGrath, (assignees of William Bowers,) for rent or rents due, or becoming due (on the lease now in possession of Benjamin Fisher) after the stock is worked up, wdiich said Helser & McGrath purchased from James Dickey; provided, they give me the privilege of renting them to such person or persons as I may think proper. Witness my hand and seal, this 13th day of May, 1842.</p> <p>(Signed,) William Bowers.”</p> <p>The counsel of the defendant objected to the evidence offered, and the court sustained the objection. The rejection of this evidence constituted (he plaintiff’s third bill of exception.</p> <p>The plaintiffs renewed the offer of this paper, after they had proved by William Bowers, that it was in his handwriting, and the court again rejected it; which formed their fourth bill of exception.</p> <p>The court (Black, President) charged the jury, in substance as follows:—</p> <p>“If you believe the evidence before you, William Bowers was entitled to distrain for the rent claimed, and your verdict ought to be in favour of the defendants, finding the amount of rent in arrear, and also the value of the goods distrained.”</p> <p>To which charge of the court the plaintiffs excepted, and the court sealed a bill of exception. The jury found for the defendants; whereupon the plaintiffs took this writ of error.</p> <p>Errors assigned.</p> <p>“1. The court erred in admitting in evidence the lease from Bowers to Fisher, and the agreement thereon, mentioned in the first bill of exceptions.</p> <p>“2. The court erred in admitting Bowers as a witness, as mentioned in the second bill of exceptions.</p> <p>“3. The court erred in rejecting the paper signed by Bowers, dated 13th May, 1842, marked A, mentioned in third bill of exceptions.</p> <p>“4. The court erred in rejecting the paper signed by Bowers, dated 13th May, 1842, marked A, mentioned in the fourth bill of exceptions.</p> <p>“5. The court erred in charging the jury, that W. Pott was entitled to distrain for the rent claimed, and that the verdict ought to be for the defendants, finding the amount of the rent in arrear, and the value of the goods distrained;</p> <p>“ Whereas, the charge ought to have been, that, as there was no demise, and no proof of a demand of the alleged rent in iron, according to a bill or order drawn, the defendant, William Pott, had no right to distrain, and the verdict ought to be for the plaintiffs.”</p> <p>contended, that Pott was not the landlord of Helser & McGrath. Thé deed of assignment made by Bowers did not alter the relations between Pott and Bowers. It was not and did not purport to be a re-conveyance of Bowers’ equitable interest to Pott. It only recited the facts. Pott had a lien for the balance due on the articles of agreement. The legal title was in him. Pott was no party to the assignment. If the assignment had any effect, it was only to appropriate the lands and the proceeds to the payment of the balance due to Pott. Bowers still had a large equitable interest on which the assignment did not operate.</p> <p>The endorsement on the lease, signed by Helser & McGrath, did. not make them the tenants of Pott. The latter was not a party; entered into no obligations as lessor; did not own the reversion. Helser 6 McGrath engaged to comply with the terms of the lease. They stepped into Fisher’s shoes. Bowers was still the landlord, and Helser & McGrath were his under tenants.</p> <p>The rent was payable in bar-iron, to be drawn to order. The tenants could not know the kind of iron wanted until it was particularly designated. 6 Bac. Abr., tide Rent; 13 East’s Rep. 18; 7 Com. Law Rep. 115 ; 20 Com. Law Rep. 194; 6 Law Lib. 3; Ibid. 71.</p> <p>Bowers had the control of the rent. Easton proved, that Pott acquiesced in the act of Bowers releasing Helser & McGrath from the rent; at least there was evidence of acquiescence, which should have gone to the jury.</p> <p>Bowers should not have been admitted as a witness. He was the real owner of the rent, notwithstanding the release in court. Whatever rent was recovered, would be credited to his advantage on the articles between him and Pott.</p> <p>Whatever words are sufficient to explain the intention of the parties, that the one should divest himself of the property and the other come into it for a determinate time, amounts to a lease. 6 Watts, 368; Bacon’s Abr. tit. Lease, K; Woodfall’s Landlord and Tenant, 118, 119, 121. Bowers, by his deed of assignment to the plaintiffs, had in effect surrendered his equitable title in the premises to Pott. Such at least was his intention. The agreement between Bowers and Fisher, beyond all doubt, amounts to a lease. What is the writing on the back of it, signed by the plaintiffs, but an agreement by them to pay to Pott the same rent that Fisher was to pay to Bowers ? In short, it was but an adoption of the terms of the old lease by the plaintiffs on the one side, and by Pott on the other. The contract was not only to pay the rent to Pott, but it was a contract made with him. Pott took the agreement and kept it; and Bowers, so far from being a party, signed his name as a witness to the other agreement, that was executed at the same time, and precisely in the same manner, and which must be construed to be a part of one and the same contract.</p> <p>The point as to the avowant not having demanded the rent, nor furnished a bill for the particular kind of iron, is not raised by the pleadings. The general avowry must be supposed to he drawn in form, according to the facts proved in the case. Ewing v. Vanars» dall, 1 Serg. & Rawle, 372. And the existence of every fact alleged in the avowry, and not specially traversed by the pleading, is admitted. Hill v. Miller, 5 Serg. & Rawle, 357. The issue that comes nearest raising the question, when drawn up in form, admits the tenancy in the manner, and on the terms alleged, and only denies that there is any rent in arrear. 5 Serg. & Rawle, 357 ; Albright v. Pickle, 4 Yeates, 265; Weidel v. Rosenbery, 13 Serg. & Rawle, 181; Williams v. Smith, 10 Serg. & Rawle, 205. Here all the rent was in arrear, and is still in arrear, whether demanded or not.</p> <p>But it is not necessary before distraining to make a demand of the rent. Royer v. Ake, 3 Penn. Rep. 465; Bacon’s Abr. tit. Rent, I. The tenant can relieve himself by tendering the rent (Ibid.); or offering on the premises, after distress made, to comply with the terms of his lease. Ibid.; 2 Rawle, 13.</p>

<p>An entry or memorandum in writing made by the owner of lands in a book, called by him his deed book, in the regular course of business, is receivable in evidence as an acknowledgment of title in the person named therein; against him who made the-same, and those claiming under him by subsequent grant.</p> <p>A sheriff’s vendee claiming title under the alleged grantor, and who purchased with notice of the title of a prior grantee, stands in the same situation as the grantor; and an entry in the grantor’s own books and in his own handwriting, would be persuasive evidence,.and in some cases conclusive proof, against the grantor or his subsequent grantee; but the effect to be given to such evidence depends upon the entry itself and the accompanying parol proof.</p> <p>Where an entry was made in the books of a grantor, thus: “ Granted lots Nos. 3 and 4, by deed,'dated the 25th of March, 1790, to E. 0.,” bounding and describing the lots, which entry was crossed; and in different ink the following memorandum was made: “ Give (or gave) a new deed to W. B., Esq.,” it was held, that the natural inference to be drawn from these entries without further explanation, was, that some contract or understanding existed between the grantor and E. C., who was his sister, and was married to W. B., in relation to the two lots; and whether it were a sale for a valuable consideration) or a gift accompanied with possession, was of no consequonce, as in either case the title would pass, which could not be impaired without the assent of the grantee or devisee. *</p> <p>In the absence of the deed, such entries, with parol proof that the grantor said his sister was the owner of said lots, is some evidence of a contract or gift, which was consummated by deed.</p> <p>A deed implies a consideration; for it must be taken, that if it were made, it was made in the usual form, passing a fee, and for the valuable consideration expressed therein.</p> <p>It seems, that it was not necessary that the precise nature of the agreement should appear; since whatever it may have been, this evidence was sufficient to justify the jury in finding a contract.</p> <p>It seems, that the memorandum with the parol evidence which is to be taken most strongly against the grantor, is to be understood without further explanation, as importing a legal and perfect title, from which a jury might infer all the formula necessary to complete the title, including delivery.</p> <p>If the entry in this case were crossed after the marriage of E. C., the grantee or donee, with W. B., it would not divest her rights, or those of her heirs, in the property.</p> <p>If the title to the lots were ever vested in E. C., she could not be divested of it without her consent; and if she were then a feme covert, that consent could only be given in the manner prescribed by the statute.</p> <p>As the defendant was a purchaser at sheriff’s sale; the plaintiff can only avail himself of the title of which he gave notice at such sale.</p>

<p>Writ of error to Quarter Sessions of Bedford county'.</p> <p>June 11. The Commonwealth of Pennsylvania, plaintiff in error and plaintiff below, against George W. Bowman and Joseph W. Duncan. The defendants were indicted: “ that for a long time ago, before and until the time of the,obstruction and nuisance hereinafter mentioned, there was, and still of right ought to be, a certain common and public highway, in the borough of Bedford and county aforesaid, commonly called and well known by the name of the public and great square of said borough, for all good citizens of this Commonwealth, to go, return, pass, repass, and ride and labour, on foot and on horseback, and with their cattle and carriages at their free will and pleasure, and that on the fifteenth day of April, in the year of our Lord eighteen hundred and forty-three, a certain house, erection and building made of bricks, mortar, and other materials, had been built and erected by certain persons to the jurors aforesaid as yet unknown, which said house, erection and building, took in, encroached upon, stopped up and obstructed a certain part of the aforesaid common and public highway called the public and great square of said borough, being in length thirty-nine feet and upwards, and in breadth twenty-one feet and upward — whereby the said public and common highway was obstructed and stopped up, so that the good citizens of this Commonwealth could not with their cattle and carriages, on foot and on horseback, go, return, pass and repass, ride and labour at their free will and pleasure, as they had been accustomed to do; and that George W. Bowman and Joseph W.Duncan, late of the said county, yeoman, the said house, erection and building so as aforesaid built and erected, and as aforesaid taking in, encroaching upon, stopping up and obstructing a certain part of the aforesaid common and public highway, on the fifteenth day of April, in the year eighteen hundred and forty-three, and from that time until the day of taking this inquisition, with force and' arms, at the borough of Bedford, in the county aforesaid, and within the jurisdiction of this court, unlawfully and injuriously, did keep, maintain and continue, and still doth keep,"maintain and continue; whereby the said common and public highway during the time aforesaid hath been and yet is obstructed and stopped up, so that the good citizens of this Commonwealth, during all that time, have been and yet are obstructed and hindered in going and returning, passing and re-passing, riding and labouring, on foot and on horseback, with their cattle and carriages, at their free will and pleasure, in and along the said common and public highway, as they had been used and accustomed to do; to the great damage and common nuisance of all the good citizens of this Commonwealth in and along the said public and common highway, going, returning, passing, repassing, riding and labouring on foot and on horseback, and with cattle and carriages, & c.”</p> <p>On this indictment the defendants were tried on the 28th of August, 1843; when the jury returned a special verdict, finding in substance the following facts: The building stated in the indictment was erected on a part of the great square of the town of Bedford, in the county of Bedford, previously to the year 1800, at the expense of the county, and for the purpose of being used as offices for the prothonotary, register, recorder, sheriff and commissioners of the county. It was used for that purpose, from the time of its erection until the year 1829, when a new court-house and offices were erected on another part of the same square, in which the courts have been held, and the public offices kept since that time. A part of the old building the jury found was then used as an office by one of the defendants, who was the county treasurer, and the other part was occupied by the other defendant, as a printing-office: the commissioners having leased it to him, reserving a certain yearly rent to be paid into the county treasury. The town of Bedford was laid out by the proprietary in 1766. The old building always has been, and now is, under the control of the county commissioners. Whether the defendants were guilty, or not guilty, the jury said they were ignorant, and that they therefore found the above stated facts, which they referred to the court for their judgment thereupon. It appeared that on the same day this verdict was rendered, the counsel of the defendants moved in arrest of judgment, on the ground that the facts stated in the verdict did not amount to guilt in the parties indicted; and that when all the facts and circumstances which appeared of record, were taken and considered together, it was manifest that the offences charged in the indictment had not been committed by the defendants. On the same, day, the following agreement in writing was made and signed by the counsel of the parties respectively.</p> <p>“If any formal error has been made in the special verdict in this case, it is agreed that' it shall be amended so as to make it right.</p> <p>“It is also agreed that if thS court shall give judgment against the defendants, the sentence shall not be executed, nor any thing done in pursuance of the judgment, until the defendants shall have a full opportunity of being heard before the Supreme Court on writ of error.”</p> <p>After argument of the motion in arrest of judgment, his honour, Judge Black, was of opinion :</p> <p>1. That the authorities had a right to erect a court-house and other public buildings for the use of the county, on the great square mentioned in the verdict; and a building erected for such a purpose is not a nuisance so long as it continues to be used for public purposes, and occupied by a public officer of the county.</p> <p>2. That such a building becomes a public nuisance if it be wholly abandoned by the authorities, and be occupied only by private individuals for private purposes.</p> <p>3. That the county treasurer being required by statute to keep his office in such building as shall be appropriated for that purpose, the building is not a public nuisance-while occupied by him.</p> <p>The judgment was therefore arrested. The Commonwealth thereupon removed the record to this court by writ of error, and assigned the following errors:</p> <p>1. The court below erred in arresting the judgment.</p> <p>2. In deciding that the authorities had a right to erect a courthouse and other public buildings for the use of the county, in the great square mentioned in the verdict; and that a building erected for such a purpose is not a nuisance as long as it continues to be used for public purposes, and occupied by a public officer of the county.</p> <p>3. In directing\that,the building mentioned in the special verdict as occupied by the county treasurer, is not a public nuisance so long as occupied by him.</p> <p>contended that the county has no property in the public square of the town of Bedford ; and that the building complained of and set out in the indictment, and in the special verdict, was a nuisance. They cited, 2 Smith’s Leading Cases, 139, 140, and referred to the authorities there cited. Rung v. Shoenberger, 2 Watts, 23; Commonwealth v. Alberger, 2 Whart. 469.</p> <p>They argued, that the cases established the doctrine, that the public square was a public highway, and that the county had no control over it. The buildings seriously affect the interests of the town, and are a nuisance, injurious to the sale of private property in the square.</p> <p>In the grant by the proprietaries of the town, there is no designation of the uses for which this public square was granted. The intention was to appropriate it to public purposes. Purdon’s Digest, 190, Act of 15th April, 1834. Under the report of the grand jury, the county treasurer was directed by the commissioners to keep his office in this building. He was liable to a penalty of $500, if he kept his office anywhere else. Commonwealth v, Alberger, 1 Whart. 485. In this case, there was a designation of the uses to which the grant was to be appropriated. There was no evidence to show, that the occupation of the public square complained of, was to be appropriated for any other than public purposes and uses.</p>

edford county. June 11. Jacob Houser, the plaintiff in error and plaintiff below, brought this action against John Kemp, who was a constable, to recover damages for taking in execution and selling one wagon, sets of horse-gears, and bells, which the plaintiff alleged to be his property.

Error, to the Common Pleas of Bedford county. June 11. Held: that where an appeal lies, the party may, by treating it as regularly in court, waive a defect that would otherwise be fatal. He also cited. 16 Serg. & Rawle, 349. The defendant was misled by the justice as to the time within which he could appeal. Cochran v. Parker, 6 Serg. & Rawle, 549.

June 11. Ejectment for fifty acres of clear land, .with the appurtenances, and three hundred and fifty acres of woodland, brought by William Lee, the defendant in error, who was plaintiff below, against David Bishop, to August Term, 1843.

<p>In applying the proceeds of a tenant’s goods sold on execution, to the landlord’s lien under a lease of the Bedford Springs for a term of years, commencing the 1st of April, at an annual rent payable the 1st of each September, tho conclusion of the watering season; it was held, that the apportionment of the year’s rent should be made on the basis of the interval between the commencement of the current year and the day of payment, and not on the basis of the whole year.</p>

In error from the Common Pleas of Bedford county. June 12. Case for slander. In the declaration filed, August 19, 1844, the words were set out, “ I (meaning the said defendant) say she (the said plaintiff, meaning) swore false.” To this there was a plea of not guilty, with leave to give the special matter and circumstances in evidence. After an appeal from arbitrators w'as filed, the plaintiff obtained leave to file an amended declaration.

June 13; The Commonwealth of Pennsylvania, for the use of George May, against John McVicker. — This was an action of debt on the official bond of the defendant, who was the sheriff of Bedford county. It was alleged that the sheriff had violated one of the conditions of his bond, in taking the goods of the plaintiff, on an execution against another.

June 15. Benjamin Moser, for the use of Lewis H. Shitler, brought a suit against Solomon Hoch, before a justice of the peace, and recovered a judgment for $50. From this, the defendant appealed, and the cause being arbitrated, an award was made in favour of the plaintiff for the same sum. Hoch, the defendant, then, on leave given, paid the debt, interest and costs, into court.

<p>Error to the Common Pleas of Berks county.</p> <p>John Shitz against John Dieffenbach. Ejectment for a house and-lot in Stouchsburg, Berks county, the title of which was in Samuel Bright, by a deed dated April 4th, 1832, from Henry Gable and wife to him. The deed was not recorded. Some time in 1832, Bright had a note discounted in the Lebanon Bank, with Shitz as his endorser; and as a security for his liability as endorser, Bright handed him the.deed. The note not being.paid, was protested, and due notice given to Shitz, the endorser, who afterwards paid the same and took it up. Bright continued in possession of the premises, until the 20th of April, 1833, when he made an assignment for the benefit of his creditors. The assignees sold the house and' lot to John Forry, on the 8th of March, 1834, and gave him a deed. The defendant proved a regular chain of title from Forry to himself. The assignment and all subsequent deeds were duly recorded.</p> <p>The plaintiff claimed a verdict to be released, upon the payment of the money and interest, which he paid for Bright to the Lebanon Bank.</p> <p>The court below (Banks, President) instructed the jury, that the plaintiff was not entitled to recover, and directed a verdict for the defendant.</p> <p>The deposit of the title-deed constituted an equitable mortgage. In Reikert v. Madeira, 1 Raw-le, 325, it was taken for granted that such a mortgage was good. If the defendant had called for the title-papers before he purchased, as he was bound to do, he v/ould have found that the title was pledged as a security for the debt we claim to recover; he therefore holds subject to our equitable mortgage. Whatever puts a party upon inquiry is notice. 2 Watts, 465; 2 Penna. Rep. 439.,</p> <p>In England, Russell v. Russell, 1 Brown C. C. 269, in 1783, appears to be considered tbe leading case upon the subject of equitable mortgage by a deposit of title-deeds, although we have the same doctrine at a much earlier date. Fitzjames v. Fitzjames, Finch, 10, in 1763, and Head v. Egerton, 3 Peere Williams, 279, in 1734, such a mortgage is held valid, but the decision in Russell v. Russell has often been regretted. Ex parte Combe, 17 Vesey, 371; Ex parte Hooper, 1 Meriv. 9; Ex parte Haigh, 11 Vesey, 403, and 9 Vesey, 118, note 1, Summer’s edition. It is yet a question in that country, whether all the title-papers ought not to be delivered. Ex parte Wetherell, 11 Vesey, 401. It would rather seem they must. Powell on Mortgages, 1054; Ex parte Pearse, 1 Buck. B. C. 625. Such a lien has never prevailed in Pennsylvania; and what was said by Justice Rogers in Reikert v. Madeira, has reference to the law as understood in England; the point did not arise; the whole current of decisions in Pennsylvania, and the policy of the legislature has been averse to this kind of lien; and our recording acts, by their very terms put them aside. And Freedly v. Hamilton, 17 Serg. Sc, Rawle, 70; Adams’ appeal, 1 Penna. Rep. 447, and Powers v. Oyster, 3 Penna. Rep. 239, settles the question.</p>

<p>Error to Common Pleas of Berks county.</p> <p>June 16. This case has been twice before this court upon former writs of error, and came up again upon the testimony of the same witnesses. The different aspect under which the case now presented itself, arose from the proof of an' additional fact, which' is fully explained and stated in the opinion of the court. For a report of the leading facts in this case, and the on decisions on questions of law, arising upon the answers and charges of the court below, on the former writs of error, see 6 Watts, 72, and 1 Barr, 68.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>June 19. The Commonwealth of Pennsylvania for the use of Peter Stub, Jacob Stub, and Sarah Ansbach, plaintiffs in error and plaintiffs below, against William Stub, George Forrer, and Henry Deck, defendants in error.</p> <p>This was an action of debt on a bond given in the Orphan’s Court by the defendants — the two last as sureties — in the sum of $7000; and was brought to recover the shares of Peter Stub, Jacob Stub, and Sarah Ansbach, in the balance of the personal property of their father, Adam Stub, deceased, remaining in the hands of William Stub, one of the executors of the will of the said deceased.</p> <p>The plaintiff gave in evidence the bond, which recited, that “whereas certain moneys, goods and effects, have come into the possession of said William Stub, and may hereafter come into his possession, to be administered;” and was conditioned', “that if the above-bounden William Stub, executor as aforesaid, shall render a true and just account of the management of the property and estate of said deceased under his care, and shall in all respects faithfully perform the duties of executor; then the above obligation shall be void,” &c. It was proved, that William Stub was indebted to the estate at the time this bond was given, as appeared from his account, filed some time previously; and that proceedings to have him removed from his trust were then pending.</p> <p>The defendants offered to prove, that at the time this bond was given, there was in court the sum of $13,000; which arose from the sales of the real estate of the decedent; and that the court ordered this bond to be taken to entitle William Stub, who was insolvent, to take the same out of court. This testimony was admitted by the court, under an exception by the plaintiffs.</p> <p>In support of the evidence offered, the defendants then called and examined the following witnesses :—</p> <p>William Strong testified, in substance, that he was concerned as counsel in the trial of the case of Leiss and Stub ; that in that case $13,000 had been paid into court, to the credit of the estate of Adam Stub ; that William Stub, as one of the executors of his father, made application to the court for leave to take out the one-half of said sum of money; that he, as counsel, resisted said application, on account of William having refused to execute a deed, and on account of his insolvency; that on the argument of this question there was an offer made, that William should give bail. There was no other matter then before the court, on which bail was demanded ; nor does he remember that he was called on to give bail. He thinks this bond is the one that was then given; that he objected to William taking the money; that the bond was voluntary on the part of William; that there had been a citation awarded to have William discharged from his office of executor, before that time.</p> <p>George G. Barclay testified, that he was in court when this matter took place. The taking the money by William was resisted, as was said, because he was insolvent or unsafe; that he was present when the subject was spoken of; that he thinks the bond was drawn in court, when the subject of giving bail for this money was talked about; that the only matter before the court at the time was this money; that no bail was then spoken of for any other money.</p> <p>John S. Gibons testified, that he wrote this bond and witnessed it, but had no recollection of the bond or its conditions, at all.</p> <p>James L. Dunn testified, that he was in court when this took place, and when the application was made by William to take the money out, and when this bond was given; that it was resisted by Messrs. Smith and Strong; that Messrs. Gibons and Barclay were William’s counsel; that Messrs. Smith and Strong insisted upon security before William should take the money out of court; that the defendants were offered by William as his sureties ; that the bond was then drawn up by Mr. Gibons, at the counsel table; that the witness told Mr. Forrer, in German, as he understood but little English, that this bond was for the security of the payment of this money in court, by William to the heirs directly, and Forrer told this to Deck; that the amount of the bond was named by the court; that the witness did not read the bond; that the bond was handed by Mr. Gibons to him, and that he then told Forrer what he has stated; that this all took place in court, and at the bar.</p> <p>The bond was dated on the 10th of August, 1838, and the rule to show cause why William Stubs should not take out the one-half of the money in court, was granted on the 13th of August, 1838, and on the next day made absolute. On the argument of the rule to show cause, the application to take the money out of court was resisted, on the ground of the applicant’s insolvency, and his refusal to execute a deed.</p> <p>The jury returned a verdict for the defendants; and the only question here was, whether, under the evidence, there was any thing to leave to the jury to authorize them to reform the bond.</p> <p>Errors assigned. — «1. The court erred in admitting the evidence mentioned in the first bill of exceptions.</p> <p>“2. The court erred in submitting to the jury whether there had been a mistake of fact, and permitting them to reform the bond.</p> <p>“3. The court erred in charging the jury as follows: — ‘If you believe that the defendants only intended to go security for the money which William was then about to take out of court, and believed that they were only going security for this sum; and that they were led to this belief by what was said and done by the other party or his counsel, there made at the time the bond was executed, then the plaintiff cannot recover.’ ”</p> <p>The question here is, whether parol evidence was admissible to reform the bond; that is, to show that the bond was never intended to cover any other liability than the amount of money sought to be taken out of court, under the rule to show cause. He argued, that the bond covered, and was intended to cover, not only the money about to be taken out of court, but that which was then in his possession, or which might thereafter come into his possession, in the execution of his trust. It was intended to cover the whole trust of William Stub, as executor, and there was no evidence to the contrary. He admitted that a bond might be reformed by parol evidence, which was clear and undoubted; certainly, where there was a mistake of “fact.” This case, he contended, came not within any of the exceptions to the rule. Here there was no evidence to show any thing like misrepresentation by the obligees; no evidence of mistake by the scrivener. Under an allegation of mistake by a scrivener, the proof must be clear that he inserted what he was not directed, or omitted to insert what he was directed. The direction must be clearly proved. This was an attempt to reform a bond on a naked allegation of mistake. He cited Stein v. Shirk, 1 Watts & Serg. 195 ; Bank of Waynesburg v. Fordyer, 1 Barr, 454.</p> <p>It is in vain to allege, that there was not a mistake by and between all the parties interested in the bond in question. It was the understanding and intention of the parties, that the bond was to be a security for the money in court, and confined expressly to it; the whole testimony proves this fact. The application to dismiss the executor was for alleged malfeasance in the execution of his trust. The mismanagement charged in the petition for the citation, related expressly to the real estate : there is no charge of misrepresentation here. Bond drawn in the sum of $7000, by an experienced member of the bar. The security was intended to be confined to one-half of the $13,000 in court; it was not given in a sum sufficient to cover the whole amount of the estate.</p> <p>He cited, Mollier v. Pennsylvania Fire Insurance Company, 5 Rawle, 347; Bowman v. Beitenbender, 4 Watts, 290, and Parke v. Chadwick, 8 Watts & Serg. 96, to show that parol evidence was admitted to prove the nature and extent of contract. 1 Johns. Ch. 609; Gillespie v. Moore, 2 Johns. Ca. 585; De Reimer v. De Cantillon, 4 Johns. Ca. 85. Bond reformed by chancellor by parol evidence, 1 Day, 139; Rankin v. Mortimer, 7 Watts, 375. Parol proof to show intention of parties; and deed reformed thereby. The parol testimony must be clear and satisfactory, and it is for the jury to pass upon.</p>

<p>Error to Common. Pleas of Lebanon county.</p> <p>June 22. This was an action of ejectment, for a .messuage and tract of land, situated in East Planover township, Lebanon county, containing about four acres, brought by Andrew McGill, Jeremiah McGill, Rebecca McGill, and Sophia McGill, the said Jeremiah, Rebecca, and Sophia, by their next friend Solomon Kline, defendants in error, who were plaintiffs below, against Jacob Heft and Conrad Hix, plaintiffs in error.</p> <p>Conrad Hix; who was the owner of the premises in dispute, entered into an agreement in writing in 1823, to sell and convey the same to James McGill, for $200; $75 to be paid in April, 1824, and the residue in annual payments. The deed to be made by Hix, when the $75 were paid, but to be retained by him until the whole purchase money was paid. In April, 1824, James McGill took possession and paid $52, of the $75. Several small payments were afterwards made by James McGill; but at no one time did he make the full payment required by the agreement. James McGill continued to reside on the premises, until October, 1829, when he died, leaving a widow and four children all in their minority. Mrs. McGill, with her family, remained in the undisturbed possession of the property, until the latter part of the year 1834; when Hix instituted an action of ejectment against her, to enforce the payment of the unpaid purchase money. That ejectment was tried at April Term, 1838, and involved the question of the amount of purchase money due and unpaid. A verdict was rendered for the plaintiff, to be released on the payment of $110 72, if paid before the first of April, 1837. Mrs. McGill with her two youngest children continued in possession until the spring of 1838; when, upon being told by Hix, that he would turn her out if she did not leave, she gave up the possession. The amount due, as fixed by the verdict, or any part of it, was not paid. Hix then took possession and remained in possession until the spring of 1841, when he sold to John Heft, who went into, possession. Heft was to pay $300, and was to have a bond of indemnity against the claim of'the McGills with bail. In July, 1842, Heft had paid $92, and made some considerable improvements on the premises,' which he had rented to Jacob Heft, one of the defendants. In March, 1841, Jeremiah McGill, one of the sons of James McGill, deceased, tendered to Conrad Hix the sum of $125, and said he wanted his land back again. Hix refused to take the money, saying the least he would take was $300. The matter remained in this situation, until January Term, 1843, to which this ejectment was brought by the four children of James McGill, deceased, one of whom, Andrew, was then of full age, and the others minors, suing by a next friend. The plaintiffs claimed as the children and heirs of James McGill, deceased, under the written agreement entered into between their father and Conrad Hix,- one of the defendants.</p> <p>The plaintiffs, after proving that Hix had stated, after the death of James McGill, that he owed him but $50 on the land, which would have been paid had he lived, offered to prove the annual value of the property on the. 1st day of April, 1838, when Hix went into possession, for the purpose of showing, that the whole, or a part of the unpaid purchase money had been extinguished or paid. The defendants objected; but the court overruled* the objection, and sealed a bill of exceptions, which was defendants’ first bill of exceptions. It was then proved, that in 1838 the premises were worth about $25 a year. The plaintiffs then called Elizabeth McGill, the widow of James McGill, deceased, as a witness. The defendants objected to her on the ground of interest; whereupon the plaintiffs offered the release of the proposed witness, of all her interest in the land in dispute, right of dower, &c. The defendants still objected to her competency, on the ground of interest; whereupon the court overruled the objection, and admitted the witness to testify. This was defendants’ second bill of exception. The witness then testified, that James McGill, her husband, died in 1829, leaving four children, Andrew, Jeremiah, Rebecca, and Sophia; that Andrew was twenty-two years of age on Christmas day, 1843, and that Sophia, her youngest child, would be sixteen years of age in May, 1845; that Hix got possession on the 1st day of April, 1838, and that the family had been out of possession ever since ; that it was after the trial here in court, he got possession; and that she gave up the possession when Hix told her he would turn her out if she did not go. At the time she gave up the possession, her two youngest children were living with her, and the others were out from home. At this stage of the trial, the plaintiffs paid into court the sum of $75, to cover the claims of the defendants.</p> <p>The defendants then offered in evidence the record of an action of ejectment, in the Court of Common Pleas of Lebanon county, of November Term, 1835, in which Conrad Hix was plaintiff, and Elizabeth McGill, the widow of James McGill, defendant; which was instituted to recover the unpaid purchase money, due on the agreement between Hix and McGill, and in which the plaintiff obtained a verdict, on which judgment was entered, to be released on the payment of $110 72, the amount of the unpaid purchase money, before the 1st of April, 1837. The plaintiffs objected, and it was rejected; which constituted the defendants’ third bill of exception.</p> <p>They also offered to prove, that after the judgment obtained, November Term, 1835, No. 14, wherein the parties were Conrad Hix v. Elizabeth McGill, widow of James McGill, ejectment •for the same premises; that before and after the judgment, Conrad Hix, over and over again, offered to give up the property to the widow and creditors, provided they would pay him his money, which was refused; that the administrator of McGill obtained an order for the sale of the said land, from the Orphans’ Court; that McGill was insolvent at the time.</p> <p>The above evidence was offered to repel the evidence given in this cause, and to rebut the equity of the plaintiffs’ right to recover under the agreement given in evidence by plaintiffs, after so great a lapse of time, and valuable improvements made; and further, to rebut the evidence given on the part of the plaintiffs, as to their right to have a credit for the rents, issues, and profits.</p> <p>Objected to, and rejected; and this was defendants’ fourth bill.</p> <p>The plaintiffs presented six points, and the defendants five; upon which they requested the court to charge the jury. Of these points, the following, being the first, fourth, fifth, and sixth, of the plaintiffs’, and the first, second, third, and fourth of the defendants’, are only material here.</p> <p>Plaintiffs’ points:</p> <p>«1. That the title of the plaintiffs in this case, as exhibited by the evidence, is an equitable one; and all the plaintiffs were obliged to do, previous to instituting their suit, was to tender to Mr. Hix anci the father of the plaintiffs. The above we ask to be told the jury, so far as Conrad Hix, one of the defendants, is concerned.</p> <p>“4. That the plaintiffs having brought $75 into court to meet the claims of the defendants, if that sum is sufficient the plaintiffs are entitled to a verdict, if nothing stands in the way but the claims of Conrad Hix, under his agreement with Jacob McGill.</p> <p>“ 5. That the defendants acquire no right to retain the property, from the fact of making improvements; provided they were made with full notice of the plaintiffs’ rights.</p> <p>“ 6. That if the jury believe $75 more than sufficient to meet and answer the just claims of the defendants, they are to say how much shall be applied out of the said $75, to those claims.”</p> <p>Defendants’ points:</p> <p>“ 1. That the plaintiffs cannot recover, because minors cannot sue j that the plaintiffs were minors, and were incapable in law to commence any suit or action at law.</p> <p>“ 2. That the plaintiffs cannot recover in this suit, because no tender made before this suit brought, of the money really due on the articles of agreement, on which the plaintiffs found their action.</p> <p>“ 3. That the plaintiffs cannot in this suit defalcate, or set off the rents, issues, and profits of the premises, for which this action of ejectment is brought, against the moneys due on the articles of agreement.</p> <p>“ 4. That the plaintiffs cannot recover in this suit, until they tender amends for all the improvements made by Hix and Heft, since Hix went into possession, in 1838.”</p> <p>The general charge of his honour, Judge Eldred, so far as material here, was as follows :</p> <p>“ The question is, whether the plaintiffs have shown enough to entitle them to recover in this suit. Their claim is under the article of agreement made by their father, James McGill, with Conrad Hix, one of the defendants, for the purchase of the land in dispute, under which a part of the purchase money was paid before the death of James McGill; and possession taken and continued by him, until his death; and by his widow, the mother of the defendants, some years after-wards. This is an equitable claim ; and as the legal title is in the defendants, it was necessary for the plaintiffs to prove, that they tendered, before the suit was brought, the balance due on the contract. Have they done so ? If the evidence can be relied on, they did offer to Conrad Hix, one of the defendants, $125. Was that all that was due on the contract, including interest ? If it was, and they now have in court, and ready for the defendant, the amount due and interest, there is nothing in the way of a recovery by the plaintiffs, so far as Conrad Hix is concerned. The money tendered before suit was brought, was not in specie; nor was it necessary, if Hix made no objection to receiving it on that account, but declined doing so for other reasons. These are questions of fact for the jury; and it is an affirmative answer to die plaintiffs’ first and fourth points, and defendants’ second point of law, on which instruction has been asked by the counsel.”</p> <p>In answer to the plaintiffs’ fifth point, and the defendants’ third and fourth points, the court said, “that if the jury believe from the evidence,, that John Heft was not a bond fide purchaser without notice; his claims, or the claims of Jacob Heft, if in possession as a mere tenant of John, without having paid any thing, are no bar to the plaintiffs’ recovery. The jury will ascertain from all the evidence, the amount due on the contract, with the interest; and in doing so, they may deduct from the price agreed on for the land, a reasonable rent for the premises, from the time the defendants came into possession. In fixing on this rent, they should take from the annual value of the land, all taxes and such necessary repairs as are really necessary for the fair enjoyment of the premises, whether it be in repairing of fences and buildings, liming the land, &c. But new buildings or improvements not necessary for the fair and reasonable enjoyment of the premises, should not be taken into consideration by the jury. If Heft has put up buildings, not necessary for such fair and reasonable enjoyment of the premises, when he knew of the equitable claim of the plaintiffs, he did it with his eyes open, and it is a matter exclusively between himself and Conrad Hix, from whom he purchased : we believe the rule here indicated to be the correct one, in a case like the present; were it not so, a person might be improved out of his land; or improvements might be made upon the land of such value that he could not pay them, or of a kind that they would be of no use to him; and he would, perhaps, be compelled to give up his land, if he were compelled to pay the value of the improvements, before he could obtain possession of them. At the same time, persons who enter into possession, as defendants here did, should be' allowed all reasonable expenses incurred for the purpose of enjoying the benefit of the property.”</p> <p>The court refused to answer plaintiffs’ sixth point, as requested; but said that if the jury, under the law as laid down, found a verdict for the plaintiffs, they would also find how much was due on the contract, to be settled on the principles before laid down.</p> <p>The court also refused to answer defendants’ first point, as requested, so far as it relates to the present action of ejectment.</p> <p>Both parties excepted to the charge.</p> <p>The jury found a verdict in favour of the plaintiffs, and said, defendants should take $21 75, out of the money paid into court. Their finding was based upon the following calculation as exhibited:—</p> <p>Balance due on purchase money, on 1st of October, 1829, $5000 00 Interest from the 1st of October, 1829, to the 17th of December, 1842, ...... 39 57</p> <p>$89 75</p> <p>Rent from the 1st of April, 1838, to the 17th of December, 1842, at $18 per year, .... $84 00</p> <p>5 75</p> <p>Allowing for necessary repairs for the years 1838, and 1839, - - . - - - - 16 00</p> <p>Leaves the balance, $21 75</p> <p>The defendants sued out this writ of error, and assigned for error here, the bills of exceptions, and the charge and answers of the court to the points submitted.</p> <p>To the admission of evidence offered by plaintiffs below, to show the annual value of the premises from the time Hix took possession, in 1838, for the purpose of showing that the purchase money was thus paid or extinguished, we objected for the following reasons : — The action trying was ejectment; and this was evidence to recover mesne profits. We hold the law and practice to be established in Pennsylvania, that mesne profits cannot be recovered in ejectment, without notice from plaintiff of such intention. Dawson v. McGill, 4 Whart. 230; Cook v. Nicholson, 2 Watts & Serg. 28. We offered the record of an ejectment by C. Hix v. Mrs. McGill, widow of James McGill, for the purpose of showing a recovery of this land, with a condition of release on payment of the amount unpaid on tire agreement of James McGill by a specified time. This evidence was in some measure rendered admissible, after the evidence of Mrs. McGill, that Hix had threatened to turn her out of possession, and that she left in consequence. If the heirs of James McGill had been defendants in that action, that verdict, uncomplied with, would have been for ever conclusive against their recovery on that title. Treasler v. Fleisher, 7 Watts & Serg. 139.</p> <p>Then the question is, whether, under the circumstances, the plaintiffs in this action Could be affected by the recovery in the record offered. James McGill had died in possession under the contract; his widow continued in possession for six years after, without any other title; her children living with her, without any other guardian ; she defending upon this very equitable title, having the amount to be paid to secure the title ascertained. If that record was not evidence, and evidence of the conclusive character, was it not evidence in another view? It certainly was, if laches can be imputed to these plaintiffs, as minors, at all. This question is better applicable to show this recovery in ejectment as a fact, with others stated, to impute delay and backwardness in the parties in interest, and thus raise the question of relinquishment of the contract. See Youst v. Martin, 3 Serg. & Rawle, 429.</p> <p>The father had been dead six years before Hix brought his action; two years had elapsed before Hix took possession, and then five more before these plaintiffs stirred in the matter.</p> <p>The minors in this case sue by a next friend. I am aware that we have a decision of the court, that suits may be brought by next friend ©f minor, without previous sanction or appointment by the court. But since the act of 13th April, 1807, it may be questioned, whether a minor can institute an action of ejectment, without guardian. The 1st section says, “ And minors may sue by their guardians, as in other cases.”</p> <p>The evidence of mesne profits was properly received; as it wms offered to show that a part of the unpaid purchase money was extinguished. Evidence of the annual value of the property was a part of the plaintiffs’ case to enable them to recover the premises, but not to recover the mesne profits beyond the land. Wykoff v. Wykoff, 3 Watts & Serg. 481. The authorities cited on the other side were, where the plaintiff sought a recovery for mesne profits. The record of the suit of Conrad Hix v. Elizabeth McGill, the widow, was not evidence in this action. The plaintiffs in this suit were neither parties nor privies to that. They do not claim through Elizabeth, the defendant in that suit, and they cannot be prejudiced by any act of her’s. She had no interest in this suit, and would have been a competent witness, without a release.- 20 Eng. Com. Law Rep. 420. The courts have encouraged the practice of minors suing by their next friend. But if minors could not thus sue, it can only be taken advantage of by plea in abatement. 7 Johns. Rep. 372; 1 Chitty’s Plead. 346. Campbell v. Galbreath, 5 Watts, 523.</p>

June 22. This was an action of debt brought by Michael Kreider, for the use of Christian Kreider, the defendant in error, who was plaintiff below, against Charles Greenawalt, on a joint and several bond, executed and delivered by Benjamin Stees, Charles Greenawalt, the defendant, and Adam Ritscher. The pleas were payment, and payment with leave to give the special matters in evidence, on which issue was joined and the cause tried.

June 23. This was an action on the case brought by George Eckert, the defendant in error, who was plaintiff below, against Thomas L. Batdorff, administrator of John Batdorff, deceased. This suit, and three others by different plaintiffs, were commenced at the same time, against the same defendants, and brought to August Term, 1840.

<p>Error, to Common Pleas of Lebanon county.</p> <p>June 23. This was an action of debt for an escape, brought by the defendant in error, against the plaintiff in error, upon his official bond given as sheriff of Lebanon county. The following breach of the condition of the bond was assigned m the declaration filed. “ That a certain Israel Long, on the third day of November, in the year of our Lord one thousand eight hundred and forty, in the court of Quarter Sessions of Lebanon county aforesaid, was convicted of fornication and bastardy on the body of Mary Long, and was then and there sentenced to pay Mary Long, the mother of the said illegitimate child, fifteen dollars for her lying-in expenses, and to pay her, the said Mary Long, fifty cents a week from the birth of the said child, (viz.: from the second day of June in the year of our Lord one thousand eight hundred and forty,) until it arrives at the age of five years, if it should so long live, (to wit, to the second day of June, in the year of our Lord one thousand eight hundred and forty-five,) and to enter bail in the sum of five hundred dollars to the directors of the poor of Lebanon county, to indemnify said county by reason of said bastard child, pay the costs of prosecution, and stand committed until the sentence was complied with. By virtue of which said sentence of the Court of Quarter Sessions of Lebanon county aforesaid, the said George Karch so being sheriff of said county of Lebanon as aforesaid, to wit, on the third day of November, in the year of our Lord one thousand eight hundred and forty, at the county aforesaid, took and arrested the said Israel Long by his body, and kept and detained him the said Israel Long in custody and imprisonment in the jail of Lebanon county from thence until the fifteenth day of December, in the year of our Lord one thousand eight hundred and forty; on which fifteenth day of December, without the leave or license and against the will of the said Mary Long, the aforesaid George Karch, so being sheriff as aforesaid, wrongly suffered the said Israel Long to escape from his custody and imprisonment, and to go at large wheresoever he would; and the said Israel Long did then and there escape from his imprisonment and go at large wheresoever he would out of the said custody and imprisonment of the said George Karch, the defendant, so then being sheriff as aforesaid; and the fifteen dollars adjudged to the said Mary Long for her lying-in expenses, and the fifty cents a week from the birth of the child until it arrives at the age of five years, (if it should so long live,) being then and still wholly unpaid and unsatisfied, to the said Mary Long, whereby, &c.”</p> <p>It appeared that Karch was both sheriff and jailor, at the time of the escape.</p> <p>After giving the bond in evidence, the plaintiff proved the conviction and sentence of Israel Long for fornication and bastardy with Mary Long, by the records of the Court of Quarter Sessions. The plaintiff then called Frederick Embich, the deputy-sheriff of Karch, who testified that Israel Long was taken into custody by the sheriff and committed to jail, pursuant to the sentence of the court; that before that sentence had been complied with, he saw Long on the pavement in the street, shovelling off snow, and engaged in making a road down to the stable, outside of the jail-yard; and also that at the request of the witness, the sheriff permitted Long to go with witness down to his house, a hundred and sixty or a hundred and ninety yards from the jail door, to make’a path through his garden.</p> <p>The defendant offered to prove, «tliat Israel Long was insolvent before he was sentenced by the court, and had no property or estate at the time he was sentenced, out of which he could have paid the costs, lying-in expenses, fyc., or any part thereof.” To the admission of, this evidence, the plaintiff objected; The court sustained the objection ; and the rejection of this evidence constituted the defendant’s fifth bill of exception. The defendants then offered in evidence the bond of Israel Long, to taire the benefit 'of the insolvent laws, to show, that at the time he was shovelling snow, See., he had given such bond, and was not in jail under the sentence. Objected to by plaintiff, and objection sustained by the court. This decision of the court formed the defendant’s sixth bill. The refusal of the court to permit the defendant to prove by parol evidence, that Israel Long was discharged from imprisonment in pursuance of the bond, constituted defendant’s seventh bill. The other bills of exception taken by the defendant, to the admission and rejection of evidence, were waived on the argument here. :</p> <p>The jury returned a special verdict in the following words: “ They find, that the amount of the bond is $15,000, and find for the plaintiff, and assess the damages at $145, if in the opinion of the court, the plaintiff is entitled to recover damages for all the payments up to this time; if not, and that the plaintiff is only entitled to recover damages for the amount due at the commencement of the suit, then we assess the damages at $51, and costs of suit.”</p> <p>The court directed judgment to be entered on the verdict for $145. This direction of the court constituted defendant’s last exception.</p> <p>The court certainly erred in not permitting us to show, that no actual damage had been sustained.</p> <p>The action of debt against the sheriff for an escape, was first given by the statute of Westminster 2, c. 11, Roberts’ Digest, 13, for the escape of an accountant found in arrear. The statute of 1 Richard 2, cap. 12, Roberts’ Digest, 393, 394, gives an action of debt against the warden of the Fleet prison, for escapes of prisoners in execution. Upon the equity of these two statutes, the action of debt is held to be maintainable against any jailor or sheriff, for the escape of one charged in execution. But this action is not brought under these statutes. It is brought upon the official bond of the sheriff. The bond is provided, and form given by the sixty-fifth'section of the act of the 15th of April, 1834, Purdon’s Digest, 970; and that act was passed as a substitute for the act of the 28th of March, 1803, Purdon’s Digest, 972; 1 Smith, 45 ; and supplies and repeals all its provisions, except parts of the fourth and the eighth sections. Now by the fourth section of this act, it is provided that, “ upon such suits, it shall be proved what damage hath been sustained.” As a matter of course, where a plaintiff is bound to show a certain fact in order to entitle him to recover the debt, he has a right to contradict it, and in this case we offered to do so. The principle for which we contend was decided in Commonwealth v. McCoy, 8 Watts, 154, in which the doctrine was laid down by the court, at length. We asked the court to be permitted to show that even if all the allegations made by the plaintiff were true, he yet had sustained no real injury.</p> <p>Again, the bond of Israel Long, filed on the 5th of February, 1841, should have been received in evidence, and the question left to the jury to say whether he was not out under the discharge given in pursuance of that bond.</p> <p>By the forty-seventh section of the act of the 16th of June, 1836, Purdon’s Digest, 561, criminals confined under a charge of fornication and bastardy, may be discharged upon compliance with the previous provisions of the act relating to insolvent debtors.</p> <p>The fourth and sixth sections of the same act provide, that the applicant shall give bond with condition to appear, &c., upon which any judge, or the prothonotary, may make an order for the discharge of the prisoner. The bond having been filed, it is to be presumed that the order was made.</p> <p>The court were right in rejecting the evidence of insolvency; Wolverton v. Commonwealth, 7 Serg. & Rawle, 273; Shulerw. Garrison, 5 Watts& Serg. 455; and also in rejecting the parol proof of the discharge of Israel Long, without first proving the existence of such ah order. Pur. Dig. 555, A., sect. 4; Loughry v. McCullough, 1 Barr, 503. There is no authority to discharge on giving bond in cases of fornication and bastardy, under the insolvent laws of June, 1836. Plaintiff was entitled to have the damages assessed up to the rendition of the verdict. The act of Assembly contemplates this, when it provides &r assessing the damages for any breach of the conditions of the bond'subsequent to the judgment.</p>

<p>Error to the Common Pleas of Lebanon county.</p> <p>June 23. Michael Wagner, the defendant in error and plaintiff below, brought ejectment against Cyrus K. Snavely, the plaintiff in error and defendant below, for a'lót of ground situated in the township of South Lebanon, Lebanon county, containing -'three acres. On the trial, the plaintiff gave in evidence the record of a judgment for $213 13, in favour of the borough of Lebanon, against Cyrus K. Snavely, the defendant, entered on a bond with warrant of attorney, in the Court of Common Pleas of Lebanon county, to April Term, 1843, No. 75, on the 6th day of May, 1843, and payable on the 8th 'of May, 1843. On this judgment it appeared a writ of fi. fa. was issued to August Term, 1843, No. 11, which was returned by th.e sheriff, “made on personal property $91 45, and levied on real estate and condemned, as per inquisition annexed. Levied on about three acres of land, more or less.” The land so levied on and condemned, was sold by the sheriff .under a writ of all ven. ex. to Michael Wagner, the plaintiff, for-$129; and the deed of the sheriff to Wagner for the land so purchased was acknowledged in open court on the 8th day of January, 1844. It was admitted on the trial, that the defendant was in possession at the time of the levy and sale, and that he continued in possession.</p> <p>“Defendant, to maintain the issue on his part, offered to prove-that the lot in dispute was taken at the valuation and appraisement, under the intestate laws, by Cyrus K. Snavely, the defendant, in right of his wife; that Cyrus K, Snavely paid no money; but that the valuation of the whole real estate, after deducting all. expenses, gave to each of the children of the intestate more money than the amount of the lot taken at the appraisement" by Snavely in right of his wife, and that C. K. Snavely received in the settlement of the whole real estate a small balance in right of his wife, and received a release, and executed releases for the same to the other heirs.”</p> <p>■ -It appeared from the paper book, that this evidence was offered for the purpose of showing that Cyrus K. Snavely, who took this property at the appraisement, had at most but a life-estate in it, which could not be sold by the. sheriff in the manner it was sold. The plaintiff objected to the evidence, on the ground that as the defendant in the judgment was in possession at the time pf the levy and. sale, and at the time of suit brought, he could make no defence. The court sustained the objection, and the rejection of this evidence constituted the bill of exception, and the only error assigned here.</p>

June 23. This was an appeal do the Court of Common Pleas of Dauphin county, by Michael C. Clarkson, late superintendent of the Gettysburg Extension of the Pennsylvania Railway, the defendant in error and defendant below,.from the settlement of his account with the Commonwealth of Pennsylvania, the plaintiff in error and plaintiff below, made by the auditor general and state treasurer, on the 10th day of September,-1839.

June 24. In this case, Jacob Seibert, the relator, upon the following petition and affidavit, obtained a rule to show cause why a mandamus should not issue to “ The Corporation of the German Reformed church of Heidelberg,” the respondents, plaintiff in error and defendant below, to restore the said Jacob Seibert to the standing and rights of a member of the said corporation. “ The petition of Jacob Seibert, of the township of Millcreek, in the county of Lebanon, and state of…

<p>A covenant of guaranty for the payment of a bond, is no part of the bond, and does not pass by an assignment of it.</p> <p>The statute, which gives an action to the legal assignee of a bond, does not give him an action on a contract, which, though ancillary, is collateral to it.</p> <p>To recover on such contract, the suit must be instituted in the name of the assignor, for the use of the holder.</p>

Error from the Common Pleas of Dauphin county. June - 25. ’ Replevin for a wagon, harness, horses, &c. The pleas were non cepit, and property in Lynch. The direction of the court, that the evidence of a want'of transfer of possession was conclusive of fraud, the defendants claiming under process and sale thereon, and disposed of. the whole case, excepting as to the wagon. A brief statement will sufficiently explain the questions of law raised on this voluminous record.

Error, to the Common Pleas of Dauphin county. June 30. This was a scire facias on a recognisance of bail for stay of execution, in which F. K. Boas, endorsee of Charles A. Snyder, was plaintiff, and Hiram H. Hetzel, the recognisor, defendant. It appeared that Boas, the endorsee of a promissory note, had brought debt against a certain E, P. Hughes, the drawer.

June 30. McCormick moved the court to mark on the record, for the use of W. W. Rutherford, the sum of $240 of a judgment for $274 59, obtained by the Harrisburg Bank against Philip German. The motion was founded on the following statement of facts, agreed upon by the parties:— “The above-stated judgment was obtained by the Harrisburg Bank, on a note drawn by Philip German, the defendant, which was endorsed by Jacob Baab.

<p>A testator, after making certain bequests, directed thus : “ Then my will is, that the remaining part of my goods, stocks, &c., shall be impartially appraised; and after such appraisement made, that the same shall be eqtially divided between all the heirs." Held, that the testator, by these expressions, and his intention as collected from the whole will, meant his own heirs, who could only be ascertained by resorting to the statute of distribution ; and that, taking the statute for the rule, the remaining part of the property bequeathed, descended to his children and grandchildren, per stirpes.</p> <p>The rule under the statute, not only designates who are to take, but also the quantum of the estate to be taken.</p> <p>By “ all the heirs," the testator meant his children, and his grandchildren, who, in his eye and by intendment of law, constituted but one heir.</p>

<p>Error, to Common Pleas'of Dauphin county.</p> <p>July 1. This was an action of debt on a bond of indemnity brought by Peter Fertig, Martin Hocker, John Stahl, and Lewis Williams, the plaintiffs in error, who were plaintiffs below, against John C. Bucher, who was jointly and severally bound with Simon Sallade, Christian F. Haenlen, John B. Thompson, Jacob Baab, and Benjamin Stees, as obligors in said bond. It appeared that William Cochran was elected sheriff of Dauphin county in the fall of 1836 ; and that the plaintiffs, on the I9th of October of that year, entered into a recognisance, and gave the requisite bond as his sureties. On the same day, but previously to executing the recognisance and bond, the plaintiffs required to be indemnified; when William D. Boas and Thomas J. Rehrer took a list of twelve names and proceeded to call upon the persons whose names were on the list, for the purpose of getting them to execute a bond of indemnity. Bucher’s name was first on the list, and they first called on him at his store. After telling him of the difficulty under which the sheriff elect laboured in getting bail, they informed him, that three or four had agreed to go bail, provided ten or twelve others would go back bail, and with them bear the loss. Bucher, after looking at the list of names, and after considerable conversation, signed the bond; but cautioned them not to give it up, until they had all the names to it which were on the list. They promised that they would not give it up, until the names on the list had been obtained to it. Amongst the names on the list, were those of Dr. Reily and James Peacock. They also represented to Bucher, that John Stahl, one of the plaintiffs, was to be Cochran’s deputy, and that there would be no danger. It appeared that Boas and Rehrer found difficulty in getting the names on the list, to the bond. Dr. Reily and James Peacock refused to sign it, when they became discouraged and gave it up; whereupon Boas threw the bond, into his desk, where it remained for many years. They had, however, obtained six names to it. Rehrer and Boas were examined as witnesses, and stated that they never said any thing to the plaintiffs in relation to the bond, or the names of the persons who had executed it. Boas stated, that the reason why he did not say any thing to the plaintiffs upon the subject was, because the business had all been concluded and bail given, before they had obtained the names which were then to the bond. The bond was given up by Boas to Stahl, in 1842. It appeared from the bond of indemnity which was given in evidence, that the persons who executed it bound themselves, their heirs, executors, &c., or any of them, to pay to. the plaintiffs, “or either.of them, their heirs, executors, administrators and assigns, their and each of their first and fair proportion of all and any sum or sums of money which they the said Peter Fertig, Martin Hocker, John Stahl, and Lewis Williams, or either of them, may have to pay in consequence or by reason of their joining with and becoming the bail and sureties of. the said William Cochran, in the aforesaid official recognisance and bond; the said Peter Fertig, Martin Hocker, John Stahl, and Lewis Williams, always bearing their fair and just proportions of any loss, injury, or damage which may be incurred by the official misconduct of the said William Cochran, &c.” ■ It was admitted that the amount of liability incurred by the plaintiffs, as the sureties of William Cochran, was $691 21, with interest from the time they paid the same; and they claimed of Bucher, the defendant in this suit, his proportionate part of this sum under the bond of indemnity. His honour, Judge Eldred, after stating the facts, charged the jury as follows :</p> <p>■ “The defendant alleges, that it is not his bond, and that he is not bound to pay. That it was executed under a promise that it should not be delivered unless the whole twelve names were obtained, that they might be equally liable with him; and that this not having been done, the bond was not perfect, and that it never was delivered. And if it had been, it was in direct violation of the agreement of Boas and Rehrer, who must be regarded as the agents of the plaintiff.</p> <p>“The plaintiff, on the exhibition of the bond, is prima facie entitled to recover. But the court instruct the jury that if the testimony of Boas and Rehrer is to be relied on, and that is a question for them to decide, the plaintiffs are not entitled to recover. The condition on which Judge Bucher executed the bond has never been complied with. The twelve names were not obtained, and it was agreed that the bond should not be delivered unless they were. A man may well agree to sign a bond of this nature with the names of twelve responsible persons, when he would not do it with a less number. If this bond is good now against Bucher, it would be good with but one responsible name. It may be,a hardship on the plaintiffs; but it does not appear that Bucher asked them to go security for Sheriff Cochran. In fact it does not appear that the plaintiffs went bail in consideration of this bond, signed as it is; for Mr. Boas says that before they procured the names to the bond now to it, they (the plaintiffs) had entered into the security. At any rate, J. C. Bucher executed the bond on the express condition that it should not be delivered until the twelve names contained on the list were put to it; which was not done.”</p> <p>To this charge, the plaintiffs excepted; and the jury having returned a verdict in favour of the defendant, they took this writ of error.</p> <p>The instruction of the court to the jury was assigned for error here.</p> <p>Taking judgment from one of four joint and several obligors does not affect the responsibility of the others. In this case, however, but one was sued. “ The. obligee has a right to treat-'it either as the joint or single bond of each at his pleasure.” Kennedy, 8 Watts, 448.</p> <p>Striking out the .name of one of four sureties in a bond by the principal, executed as a joint bond, does not avoid it. 14 Serg. & Rawle, 405. The rest of the sureties are still bound. 8 Watts, 448.</p> <p>Though a bond be written, as if to be executed by two or more joint and several obligors, and is executed by part only, yet it is valid against those who execute it. Cutler v. Whitmore, 10 Mass. Rep. 442.</p> <p>A bond executed by nine persons as obligors, upon certain terms and conditions, and subsequently delivered by five of the obligors, without the knowledge or consent of the remaining four, upon terms and conditions different from those originally stipulated, is not obligatory upon the latter, Lovett v. Adams, 3 Wendel, 380.</p> <p>Where a party to any instrument seals it, and. declares, in the presence of a witness, that he delivered it as his deed, &c., he is bound by it. 12 Eng. Com. Law Rep. 351.</p> <p>Leaving off a signature of a bond does not avoid it. 16 Eng. Com. Law Rep. 146. '</p> <p>A bond signed by one surety, which contained in the body of it the names of two, is not recoverable against the one that signed it; unless it be proved that he dispensed with the execution of it by the other. Sharp v. United States, 4 Watts, 21.</p> <p>Where a bond is executed by the sureties, and not by the party named as principal, it does not bind the othér sureties. Barrington v. Bank of Washington, 14 Serg. & Rawle, 405; 1 United States Dig. 433, pi. 7, 14, 24, 29; 2 Pick. 24; 17 Mass. 591.</p> <p>A bond executed by nine persons on certain conditions, and after-wards delivered by five of them without the knowledge or .consent of the other four, does not bind the latter. 3' Wend. 380.</p> <p>Where a bond is not delivered to the obligee, but put into his hands by one having no authority to deliver it, the obligee cannot maintain an action on it. 7 Pick. 91. -</p> <p>Where B. executes a bond as surety for A. and delivers it as an escrow, on condition that C. shall execute it as co-surety, and C. executes and delivers it, on condition that D. shall also join therein as co-surety, but D. does not unite in the bond, neither B. nor C. is liable in law or equity. 2 Leigh, 157.</p>

July 1. Appeal by Thomas Finney from the decree of the Court of Common'Pleas of Dauphin county, in the matter of the distribution of the money raised by a judicial sale of the real estate of Jacob… Held: that it is not necessary that a judgment should be revived in order to maintain its lien on money in the sheriff’s hands.

July 6. Feigned issue directed to try the right to money in the hands of Merceir. Bartlett claimed under a judgment against M. J. Clark & Co., and an attachment of execution; McDuffie, under an assignment on the day succeeding the service of the attachment from J. Caldwell and M. J. Clark of these funds executed by the latter.

<p>Investment of trust funds in stock of a bank which has suspended specie payments, a breach of trust.</p> <p>So of an investment in stock in the individual name of the trustee, without addition of his character as trustee; and the cestui que trust may require an account for the amount thus invested, with interest.</p>

Error from the Common Pleas.of Bradford county. July 6. One point only arose on this record. The plaintiffs sued on an insolvent bond, on which one of the obligees had been discharged from arrest, and his application as an insolvent dismissed.

Error from the Common Pleas of Bradford county. • July 6. Overton brought ejectment against Edmund Siclder and others; and on the trial, before Conyngham, President J., gave in evidence the record of a judgment against the defendant and others; a fi. fa. issued, and returned “levied,” on the land in question; also a venditioni under this judgment, reciting the fi. fa. as issued against the defendants, omitting however the name of Edmund Sickler; advertisements, a sale, and…

Writ of error from the Common Pleas of Luzerne county. July 6.' This was an ejectment brought on a mortgage given for the purchase money of land; and the defence set up was, an alteration of a note accompanying the mortgage; The following is a copy of the note and the alteration:— « ‡100 00.

<p>In error from the Common Pleas of Wayne county.</p> <p>July 7. Trespass for taking a horse. The plaintiff proved a levy and sale of the property while in his possession under an execution issued on the same day that a judgment was confessed by B. Rogers to Henry Rogers. He then proved that two days previously, a constable was about to levy on (his horse under a judgment against one Moore, when Moore said he had sold the horse to plaintiff, who would pay the amount of the executions. Plaintiff did pay one, and gave his note for the other. Defendant then proved an assignment by Moore to B. Rogers, which in the charge of the court is stated to have been for this horse, among other things, made some months previously to the sale to Ward, but Moore continued in possession as before. He also proved by Moore, that he told Ward about the time of the sale, that Rogers had a writing on the horse, but he had shown it to several .persons who said it was invalid. He told him it was a lien ; that he thought there would be sufficient to pay Rogers on an order on a third person, which he had given him; he also admitted he was indebted to Ward at the time of the sale to him. It was also proved that Rogers did not provide for the keeping of the horse after the assignment or sale to him ; and that Moore had said the sale to Rogers was for the purpose of keeping it out of the way of executions. Defendants requested an instruction that if plaintiff purchased with notice of a pre-existing purchase by Rogers, or a lien created in his favour, he was concluded.</p> <p>The court (Jessup, President J.) instructed the jury that the paper gave no title as to creditors or boná fide purchasers. That notice of the lien would not bind the party as a creditor: to bind a purchaser it must be clear and explicit; and if the statement by the person selling, was, that it was invalid, or had been paid, it was insufficient. That if Ward took the horse in payment of his own debt, and paid executions which might have been levied, he was in the situation of a purchaser at a sale under the executions. Though a mere volunteer would be bound : with this qualification he negatived the proposition of defendant. *</p> <p>The exceptions w'ere to the charge, and that the action could be maintained on the de'cláration filed. • The original action was trespass, but on appeal from the justice, the declaration was in assumpsit, but there does not appear to have been any question on this point raised before the assignment of errors.</p> <p>The sale by Moore to Rogers was binding on him and also on his vendee with notice. He is a mere volunteer and not a creditor, as far as the evidence shows. There is no case which places a creditor redeeming an article from execution in the position of a purchaser under the execution.</p> <p>There was no certain evidence whether notice was brought home to Ward before his purchase, but even if there was, the previous sale was fraudulent and void. Over v. Blackston, 8 Watts & Serg. 71.</p>

Error from the Common Pleas of Bradford county. July 7. This action was to recover the amount of a counterfeit bank note passed to the plaintiff by defendant, under the following circumstances :- — One Mills, having- borrowed money of plaintiff requested Horton, the defendant, to pay it out of a debt owing by himself to Mills. Horton called on defendant,)and with his own money paid part of the amount due by Mills, on his account.

In error from the Common Pleas of Luzerne county. July 10. This was a proceeding to open a railroad across the land of the plaintiff in error, from the mines of the defendants, to the public works on tbe Susquehanna, under the act of 1832, Purd. Dig. Canals and Railroads. From the report of the reviewers, the plaintiff in error appealed.

July 11. This was an action on the case for the loss of horses &c., in crossing a ferry.

<p>In error from Common Pleas of Bradford county.</p> <p>July 15. This was a feigned issue directed to test the right of the parties to the proceeds of a sheriff’s sale of the personal property of L. Smith, in which a special verdict was found, in substance, as follows: L. Smith drew a promissory note, falling due June 30th, 1845, for discount at bank, which was endorsed for him by Tyler et ah, as sureties. While this note was maturing, he gave to Tyler the following instrument:</p> <p>«$>1000. Athens, February 15,1845.</p> <p>«For value received, I promise to pay Francis Tyler and Levi Westbrook, or bearer, one thousand dollars, with interest, by the first day of June next. And I do hereby authorize any attorney of any court of record in Pennsylvania, to appear for me and confess judgment for the above sum to the holder of this single bill, with costs of suit, hereby releasing all errors and waiving stay of execution and the right of inquisition on real estate; also waiving the right of having any of my property appraised which may be levied upon, by virtue of any execution issued for the above sum.</p> <p>«L. Smith.</p> <p>This was to secure them, as endorsers of the above-mentioned note.</p> <p>On this, a judgment was entered on the 10th of March, and an execution was left with the sheriff on the 2d of June. Under this, the money was paid into court arising from the sale of personal property. Prior to the sale, which was on the 2d and 3d of July, Overton left with the sheriff an execution on a judgment in his favour. The jury found that Tyler had paid the first-mentioned note, after protest, and on or before the 3d of July.</p> <p>The court (Conyngham, P. J.) gave judgment for Tyler, and this writ of error issued.</p> <p>The days of grace are part of the contract. 1 Pet. S. C. Rep. 25 ; Thomas v, Shoemaker, 6 Watts & Serg. 179; nor will the fact, that a warrant of attorney is attached, alter or in any way affect that right — it is to be construed as if the note and the warrant were distinct instruments. A suit, then, not being maintainable before the 5th of June, of course no execution could issue for the same debt at an earlier period.</p> <p>contended, that by the agreement the judgment was to be entered as for an amount due on the 1st of June, and that the character of the note, if such it was, merged in that contract. But there never was a privilege of the days of grace; the judgment could not pass from hand to hand; and subsequent holders would certainly be bound to defalk any payments made on account of the judgment. These are principles irreconcilable with the rules regulating commercial paper. 3 Penna. Rep. 374; 1 Watts, 135; 1 Miles, 162; 6 Johns. Ch. Rep. 281; 2 Term Rep. 640.</p>

<p>In error from the Common Pleas of Bradford'county.</p> <p>July 15. Replevin. — The plaintiff having given evidence of title to the property, the defendant rested his title on a constable’s sale as the property of the plaintiff’s brother. Having shown a judgment before a justice of the peace against Sill and C. Camp, the brother of plaintiff, in Wysox township, offered in evidence an execution issued “to the constable of Herrick township,” and the return by the constable of Standing-Stone township. It was conceded that Standing-Stone was an adjoining township to Herrick, in which the defendant resided; plaintiff residing in • Wysox. That the constable of Standing-Stone lived four miles-from Sill, and five and a half from C. Camp, and was the nearest constable to the justice. That Sill lived a half mile from the line of Standing-Stone township. That the constable of Herrick lived ten miles from Camp.</p> <p>The return was “taken on, &c. &c., March 10th. The above property was sold for $39 75. Sale indemnified by Gordon (the defendant below,) 11th March, property replevined. II. S., constable of Standing-Stone.”</p> <p>The court-(Conyngham, President J.) rejected the evidence; which was the error assigned here.</p> <p>conceded no authority could be found, ruling that process directed to a constable of one township could be executed by another; but he relied on the protection to which purchasers were entitled, under the presumption that all process would be rightly executed, and cited Paul v. Vankirk, 6 Binn. 124; Smith v. Schell, 13 Serg. & Rawle, 336; Thompson v. Hamlin, 6 Watts, 492.</p> <p>relied on the want of authority, and cited Purd. Dig. 631; Smith v. Schell, and Paul v. Vankirk, ut sup-., recognising this doctrine.</p>

In error from the Common Pleas of Bradford county. July 17. Case stated, with leave to bring a writ of error. In 1833, judgment was entered by confession against Henry Wells, to secure a note payable in three years. In the same year Henry Wells died, having devised to his three sons, George H., James PI., and Henry S. Wells, certain lands as tenants in common. To George H. Wells, he devised other lands in trust for his daughters, Susan and Francis.

July 18. This was an action of ejectment brought by Hulet Smith, the defendant in error, against Augustus Huey and John Huey, the plaintiffs in error, to recover nine acres of land in Shamokin township.

<p>In error from the Common Pleas of Columbia county.</p> <p>July 20. The plaintiffs declared in assumpsit, “for that said defendant, for the purpose of inducing the delivery of a canal boat, called the Caroline, to W. Faux, by plaintiffs, did promise and agree with plaintiffs, by the name of B., F. & Co., to go bail for the said W. Faux delivering of a canal boat the then next spring, of such dimensions as might be agreed on, to the said plaintiffs;” that relying thereon, plaintiffs did deliver the Caroline; and W. F. then entered into a contract with the plaintiffs to deliver a canal boat of the size, &c., of the Elizabeth, (as in the contract below.) They then averred the value of a boat like the Elizabeth, and that of the Caroline, and the non-delivery by defendant or W. Faux, in compliance with his promise and undertaking, though often requested so to do,” &c.; and that W. Faux was utterly insolvent.</p> <p>On the trial, plaintiffs gave in evidence the following instrument : — ■</p> <p>“ Mr. Faux called on me this morning to go his bail for the delivery of a large Pennsylvania canal boat next spring, of such dimensions as may be agreed on. I agree accordingly to go bail for Mr. Faux’s delivery of a canal boat next spring, as above.</p> <p>“B. Frick & Co. M. McDowell.</p> <p>« McDowell’s Mills, 28 July, 1841.”</p> <p>And having proved that the plaintiffs, whose names are set out in the agreement, constituted the firm of A. Frick & Co., they further offered an agreement, of which so much as is material here is given below; together with proof of the delivery of the Caroline.</p> <p>The agreement was as follows:</p> <p>“It is agreed between Charles,F. Mann, Benjamin P. Frick, and Thomas Ryan, of the one part, and William Faux, of the other part, as follows: Said William Faux, for the consideration hereinafter mentioned, is to build for the said Mann, Frick & Ryan, a canal freight boat, to run on the Pennsylvania canal, of the size and tonnage of the canal freight boat Elizabeth, of Catawissa, to be made of, &'c., and to deliver said boat in the canal at Bloomsburg, at the opening of the navigation, on or before the 10th day of April, in the spring of 1842; that the said Mann, Frick & Ryan, will pay to the said Faux such sum as said boat shall be reasonably worth, or as boats of her size, tonnage, and finish may sell for in the market at the time she shall be delivered, as follows, viz.: a cash payment of f200, paid by the said Mann, Frick & Ryan, to the said Faux for the canal boat Caroline, is to be credited as part of the purchase money of the boat so to be built; the notes respectively due on the 5th day of July, and 5th day of October, 1841, as part of the purchase money of the Caroline, are to be paid when demanded, after becoming due, and credited as payment of the boat to be built by this agreement. The said boat Caroline is to be returned to the said Faux by the said Mann, Frick & Ryan, &c.; and the said Mann, Frick & Ryan, of the one part, and the said William Faux, together with Matthew McDowell, who hereby becomes bound as surety with him for the faithful performance of his part of this agreement, bind themselves the one to the other in the sum of one thousand dollars, as stipulated damages.</p> <p>“ In witness whereof we have hereunto set our hands and seals, this 29th day of July, a. d. 1842. •</p> <p>“Charles F. Mann, [l. s.]</p> <p>“Thomas Ryan, [l. s.]</p> <p>[l. s.]</p> <p>“William Faux, [l. s.]</p> <p>[L. S.]”</p> <p>The court rejected the evidence, and directed a verdict for the defendant; and this rejection was assigned for error here.</p> <p>contended, the objection to this agreement is, that it was not signed by one of the partners; but this is immaterial, as the contract on our part was complete by the delivery of the consideration. 4 Com. Dig., tit. Fait, A. 2, C. 2, p. 262, 269; Hennessey v. The Western Bank, 6 Watts &Serg. 310. Certainly W. Faux was bound; and if he was, the defendant is. Coe v. Cook, 3 Whart. 369. He also cited 2 Hall, 211; 10 Mass. 444; 12 Mass. 137; Bonn v. Aitkin, 6 Watts & Serg. 165. That the non-sealing partner ratified and confirmed this contract. Story on Partnership, 178, 179; Gow on Partnership, 58, n.</p> <p>contended, the agreement by McDowell was not relied on by plaintiffs, but a new one executed, in which B. Frick, by not sealing, was not a party, and consequently neither bound himself nor was able to take advantage of it; that his affirmation of the contract would not serve to render him responsible; Hennessey v. Western Bank, ut sup.; Bellas v. Hays, 5 Serg. & Rawle, 427, 438; and the remedies must be mutual; that there was another objection taken, viz., that this was not the same contract that defendant agreed to.</p>

In error from Common Pleas of Northumberland county. July 21. Assumpsit against Parke and others, for work done on lands, of which defendants were tenants in common, in which Parke alone was summoned, and appealed from the judgment of the justice. On the trial before Anthony, President J., alter the plaintiff had proved the cause of action, defendant called G. Heckert, one of the defendants, who was not served with process, and was released by defendant Parke.

From the Court of Common Pleas of Northumberland county. July 21.

<p>If a defendant be in possession at the time of serving the writ in ejectment, the plaintiff has a right to proceed to trial, unless that is rendered unnecessary by judgment by default, or confession.</p> <p>If a defendant, after the service of the writ, quit the possession of the land for which the ejectment was brought; such act does not affect the' plaintiff’s right to proceed to a verdict, so as to recover judgment for his costs of suit, and also for damages in that action (if notice have been given) for the mesne profits, or in another action of which the judgment in the ejectment is the foundation.</p> <p>The regular plea in ejectment is, not guilty ; and what is called a disclaimer, which is sometimes improperly entered on the record, is inappropriate to the action.</p> <p>Under the plea of not guilty, the defendant can take defence on the trial as to the whole or any part of the land in controversy, on any ground available to him, in law.</p> <p>Where, therefore, a defendant at the time the writ was served, was in possession of a part of the land for which the ejectment was brought, and which he shortly afterwards threw out by .moving his fence so as to exclude it, and entered on the record that he made defence only for that portion of the land included within his survey and fence, which did not embrace the part ultimately recovered by the plaintiff; it was held, that notwithstanding the said a'cts and entry of defence on the record by the defendant, the plaintiff had a right to proceed to recover a verdict and judgment for the part belonging to him, and was consequently entitled to his costs of suit.</p>

<p>Error to the Common Pleas of Northumberland county.</p> <p>July 22. A judgment in favour of E. Bulkley, against Jacob Ulp, and Jacob jEckert was entered of record, in the Court of Common Pleas of Northumberland county.</p> <p>Under an attachment in execution issued on this judgment, the sheriff attached money in the hands of a certain John Paul, and summoned him, as garnishee. In answer to interrogatories exhibited by the plaintiff, the said John Paul said, that at the time of the service of the attachment in execution upon him, he was one of the school directors of Point township, Northumberland county, and was also treasurer of the board of school directors; that he had in his custody, as treasurer aforesaid, the public money to be applied to the support of the schools in said township; that Jacob Ulp, one of tire defendants, had been a teacher of one of the said schools, and that there was due to him, for services, the sum of --dollars. That the said garnishee, at the time of the service of the writ aforesaid, had not.any money in his hands, due and owing to the defendants, or either of them, except as aforesaid.</p> <p>It was agreed by and between the parties, that the answers of the garnishee to the interrogatories of the plaintiff, were the facts of the case, and should be considered by the court as a case stated, subject to a writ of error by either party. Judgment to be entered in favour of the party, who, in the opinion of the court, was entitled to recover, under the law and facts. The court below (Anthony, President) were of the opinion, that money in the hands of the treasurer of the board of school directors, in his official capacity, could not be legally attached, and directed judgment to be entered for the defendant. Whereupon, the plaintiff sued out this writ of error.</p> <p>submitted the case here, without argument.</p>

<p>Error to the Common Pleas of Union county.</p> <p>July 22. In 1845, issues were directed to try whether the legatees of Douglass were entitled to receive the proceeds of a sheriff’s sale, of the real estate of Spiegelmoyer, executor of said Douglass; and the only question was, the effect of the transcript of his account under which they claimed; if it were a lien, they had a preference. - On the 21st of July, 1843, a certificate of an extract of the record was obtained from the Orphans’ Court, and filed in the Common Pleas as follows:—</p> <p>«September Term, 1839. The final account of Daniel Spiegelmoyer, executor of F. Douglass, deceased, showing a balance in the hands of the accountant of $1217 04J. September 16, 1839, confirmed.”</p> <p>«August 19, 1839. The final account of Daniel Spiegelmoyer, executor of the last will, &c., as passed by the register, and certified to the Orphans’ Court, filed 16th August, 1839. September 16th, 1839, confirmed nisi.”</p> <p>Then followed an extract from Douglass’ will, immaterial here.</p> <p>« December 24-, 1839. Exceptions to the final account of Daniel Spiegelmoyer as the executor of F. Douglass, filed, and G. S. appointed auditor by the court.”</p> <p>The exception was not to be found.</p> <p>The objections to this, as evidence on the trial of the issues, were, that there was a reference to an auditor who had not reported, that exceptions were filed, and that there had been no settlement in the Orphans’ Court; but his honour (Wilson, President J.) admitted it. The admission of this evidence was the error assigned. It was stated and assumed by the court here, that the legatees were the except-ants.</p>

In error from the Common Pleas of Northumberland county. July 22. Debt on bond of collector of tolls appointed by the Canal Commissioners of the Commonwealth, against one of his sureties.

In error from the Common Pleas of Union county. July 22. Held: that one not interested in the legal consequences of a judgment, is a competent witness.

From the Orphans’ Court of Columbia county. My 23. Peter Drenkle, by written articles, agreed to sell a tract of land to K. & J. Drenkle, for $3000, payable in annual instalments of $500, “ and to make, execute, and deliver a good and sufficient deed of conveyance for the same,” possession to be delivered on 1st April, 1836. The purchasers, also, acknowledged satisfaction of the legacies due from their father’s estate, in consideration of this conveyance.

July 23. After verdict, the counsel for defendant requested his honour, Anthony, President, J., to enter on the record the following minute:— « This case was given to the jury on the morning of Thursday the 17th of April, and the jury retired to deliberate upon their verdict. The court then adjourned until half-past 2 o’clock, n. m. of the same day; during the interval, and between the adjournment and the time for the meeting of the court, his honour.

<p>In error from Common Pleas of Northumberland county.</p> <p>July 23, 24. Assumpsit by plaintiff in error on defendant’s note for $1150, dated 1st March, 1838, to the order of Edwards & Verr.ee, and by them endorsed. The defendant having withdrawn all pleas but payment, with leave, &c., read a notice, that said note was without consideration ; that Edwards applied to Lawrence for a loan for ten days, and obtained $580, giving his check for $600, and pledged the note in suit as a collateral, to be returned on payment of his check. That before and at the expiration of the ten days, the specie was tendered and the check and note demanded, which were refused ; and that defendant took the note from Lawrence after it became due, and wdth full knowledge that payment was refused and would be required, to show what consideration he paid.</p> <p>He then, under objection as irrelevant and not included in the notice, (first exception,) proved a receipt in November, 1837, of two notes, for $1167 92 and $964 32, of defendant, by Edwards & Verree, to be paid by them at- maturity. Also, by their letter, a receipt of the note in controversy, in March, 1838, to enable Edwards & Verree to take up the former notes, which they were unable to do according to their agreement. Also, (second and fifth exceptions,) the payment or settlement by Donaldson, the defendant, of the notes for $1167 92 and $964 32, which matured in March. Also, (third exception,) a suit by Lawrence in the District Court of Philadelphia, against defendant, on this note, in which the writ issued, October 25lh, 1838.</p> <p>The fourth exception was the admission of the evidence of Edwards, and one of the endorsers who had been discharged as a bankrupt. He stated that the note in suit was deposited as collateral security for the $600 check, according to the notice. That when the check fell due, he took the amount in gold in a handkerchief in his hand, and offered to pay it to Mr. Lawrence, to relieve the note of Donaldson ; that Lawrence said he had not time to attend to it, and seemed very short about it; and that Lawrence neither gave him the note nor check. He was not sure he showed the gold to Lawrrence.</p> <p>The defendant then called Lawrence, who was the plaintiff in the action mentioned above. He stated in his examination, that nothing was advanced on the Donaldson note; but it was given as a collateral security for previous advances of plaintiff’s money. In his cross-examination he stated he did make an advance at the time of receiving the note. This discrepancy was submitted to the jury, and for the purpose of this case is sufficiently stated here, as the jury under the charge found no advance was made.</p> <p>The sixth exception was to the evidence by Lawrence, whether he was in the habit of advancing on his own account and keeping separate accounts: not pressed here.</p> <p>The seventh exception was to proof of the purchase in 1838, of $600 in gold, by Edwards or for his use.</p> <p>The eighth was to the want of proper formalities in a commission to take testimony: but the objections do not appear on the paper book.</p> <p>The ninth was to proof under the commission by the clerk who sold the gold to Edwards, that he purchased it, and at that time alleged it to be, for the purpose of making a tender, with the privilege of returning it if that was refused.</p> <p>The charge of his honour, (Anthony, P. J.,) so far as is at all material here, was as follows:</p> <p>“In case the jury believe there was nothing advanced by Lawrence at the time he got the Donaldson note, then we instruct you, in the language of Gibson, C. J., in Petrie and Clark, 11 Serg. & Rawle, 388, that, “ in regard of a pledge there is a decisive difference between the pawning of a security for an antecedent debt, and the procuring of it for money advanced at the time.” If pledged for an antecedent debt merely as security, it would stand as it would if it were a bond, subject in' the hands of the holder to every equity that could be set up against it in the hands of Edwards and Verree, from whom Lawrence obtained it; and if there was no consideration between the maker and payees, (Donaldson and Edwards and Verree,) the plaintiff would be in no better situation, and could not recover. But if it were delivered to Lawrence as collateral security for a debt then created, on the faith of such endorsement, without notice of any equity between the maker and payee, then Donaldson could not defend himself by showing failure of consideration between himself' and payee. 10 Watts, 270; 6 Wharton, 220. The jury will therefore determine whether the plaintiff or his agent took the note now in suit for a previous debt, as collateral security; or whether he took it for money loaned at the time it was transferred to him. If he took it as security for a pre-existing debt, that debt still remained unsatisfied. The note was subsidiary to the principal debt, running parallel with, collateral to it. When collected it would go to the credit of the principal debt, or if the principal debt be paid off, the debtor is entitled to a restoration of the collateral security, as Donaldson could show him that as between him and Edwards and Verree there was no consideration, and if he has done so, then the plaintiff can recover nothing. But if the note was taken for money loaned at the time of the transfer, Donaldson .is bound to pay the amount which was loaned on the faith of the note, together with interest from the date. What that amount was, is as a fact for the jury.”</p> <p>Plaintiff’s points. — «1. That a legal and sufficient tender is not proved.</p> <p>«Answer. That a tender is an offer to pay money to another in satisfaction of a debt, or .for any other purpose. In strictness of law, where a tender is made, the money must be counted down in gold or silver, and offered to the party; but where one approaches another, and offers to pay him a. certain sum of money, and has it with him in specie, ready to pay, the other party dispenses with the counting down of the money by refusing to receive it before it is counted. If the jury believe that Wm. C. Edwards had $600 with him in specie, in his handkerchief, in his hand, as sworn to by him, and offered the same to John Lawrence, and if Mr. Lawrence refused to receive the gold, it was not necessary for Mr. Edwards to count down the same to him, for by the refusal of Lawrence to accept the gold, his conduct dispensed with a regular tender; but if Mr. Lawrence did not refuse to receive the money, then a regular, legal tender was necessary by counting down the money, and offering it to the said Lawrence.</p> <p>“ 2. That defendant cannot avail himself of the tender by Edwards, further than Edwards and Verree could, if sued directly on the loan.</p> <p>“3. That the alleged tender being neither pleaded, nor the money brought into court, cannot avail defendant as a defence even against the payment of interest on his note.</p> <p>“Answer to 2d and 3d points. If the jury believe that the note of Donaldson was pledged by Edwards and Verree to John Lawrence, as collateral security for the payment of an antecedent debt, and was an accommodation note given by Donaldson to Edwards and Verree, without consideration; then the holder of the note would be in no better situation after the transfer to him, than Edwards and Verree. This note then being given as collateral security, Donaldson, the maker, would be in the nature of a surety, and could avail himself of the tender,by Edwards further than Edwards and Verree could if sued directly on the loan; for when the creditor has the means of payment in his hands from the principal, by tender or otherwise, and refuses to accept or receive the payment from the principal, the surety is discharged. And it is not necessary for the present defendant to plead the tender by Edwards, nor bring the money into court, in order to avail himself of the alleged tender as a defence, if the same were made in a proper time by Edwards and Verree to the full amount of the money for which the Donaldson note was pledged as security to John Lawrence.”</p> <p>The errors assigned were the admission of the testimony in the nine bills of exceptions; the charge of the court, that if no advance was made and it was an accommodation note, nothing could be recovered; and as to the tender.</p> <p>The onus under the pleadings was upon the defendants, and it is clearly shown that plaintiff holds this note to secure previous advances; he is an innocent endorsee without notice. The evidence in the first and second exceptions was clearly irrelevant, as it is perfectly immaterial that this was accommodation paper. The witness in the fourth exception was incompetent, as he was a party to the negotiable instrument. Bank v. Walker, 9 Serg. & Rawle, 229 ; Guest v. Espy, 2 Watts, 268; Bank v. McCalmont, 4 Rawle, 311; Jordan v. Davis, 5 .Whart. 338; Harrisburg v. Foster, 8 Watts, 304; Griffith v. Reford, 1 Rawle, 196-198, 6 Serg. & Rawle, 115.</p> <p>The notice of special matter is ample and legal. It is not necessary to state in the notice, how, or by whom, we intend to make out our defence. All that is necessary is, to apprize the plaintiff of the nature of the defence, and what will be proved to sustáin it. Edwards was a competent witness. In our offer of him as a witness, we did not purpose to infringe upon any rule or decision of this court. Whether the endorser is a competent witness for the defendant, depends upon the character of the testimony he is called upon to give. He cannot be called to establish a want of consideration in a suit upon the note against a maker. He cannot be a witness to invalidate the note, or to show the foundation of the transaction, nor to prove that a business was an accommodation note for the benefit of a third person. But Edwards was offered to prove the tender; and he was admitted for that purpose, and that purpose only. We showed that the note was an accommodation note; and Fenton and Fallon were called upon to prove the handwriting of Edwards, and that the notes were paid by Donaldson. The evidence was clearly relevant, and properly received.</p> <p>Edwards was a competent witness to prove the tender. He was divested of all interest by his discharge under the bankrupt act. The rule of policy does not exclude him. The rule, as to the admission of a party to a negotiable note as a witness, is clearly laid down in Chittyon Bills, 654, in note 1, where all the authorities on this subject are collected. They also cited Woodhall v. Holms, 10 Johns. 231; O’Brien v, Davis, 6 Watts, 498; Bank of Montgomery county v. Walker, 9 Serg. & Rawle, 336; Harrisburg Bank v. Forster, 8 Watts, 304; 11 Serg. & Rawle, 388; 6 Whart. 220; 10 Watts, .270.</p>

July 24. The plaintiff brought an action on a note under seal, drawn by the defendant to plaintiff’s order, for $600. The defendant, under exception, proved the declarations of his father-in-law, who was the father of plaintiff, made in the absence of plaintiff, and shortly after the payment of the money; that he had loaned the sum of $600 to defendant as an advancement to his daughter, and that he had sent the money by his son Robert, the plaintiff.

<p>Error from the Common Pleas of Columbia county.</p> <p>July 24. In ejectment the plaintiff claimed title under a warrant to Thomas, in 1814, interest from 1804; survey the September of the same year, with endorsement of Thomas’s residence and improvement; a patent in 1816, and mesne conveyances to himself from the warrantee; with proof of residence by Thomas in 1804.</p> <p>Defendant gave in evidence a warrant to William Benson, in 1793, adjoining land granted to John Barrow; a survey in March, 1794, and a patent the same year to John Nicholson. He then showed the certificate of balances due the Commonwealth by Nicholson, in 1796 and 1800; and the warrant from the governor in 1807, to Evans and others to sell the lands of Nicholson; a return of sale of five tracts in 1809, including the Benson tract, to the state; a deed from the Commonwealth in 1839, and conveyances from her grantee. He then called a surveyor, who stated he knew the location, and the land in plaintiff’s survey in dispute here was included in the Benson tract. That the latter runs over some adjoining surveys. The first error assigned was, for permitting plaintiff, on cross-examination, to ask the witness whether he found the lines of the Benson survey on the ground. He was able to find the lines of two out of the four surveys called for by Benson; as a surveyor, he was of opinion this survey was not made on the land. The witness stated many reasons for his opinion, and mentioned particular courses that were called for, but not marked on the land, but as the plans referred to were not furnished to the reporter, a particular statement of his evidence would not throw any more light on the case. He then proved a connected draft of eleven adjoining tracts including that of Benson. These called for the two tracts, the lines of which he stated he had found.</p> <p>It is believed these facts are all that are required to the understanding of the points of law raised in the case, so far as they can be collected from the paper book.</p> <p>To the first point, viz., that if the land was within the Benson survey, the defendants must recover; the court (Anthony, President J.) said, if there was no survey in fact, and the law would not presume one from the circumstances, the plaintiff could recover,</p> <p>pj., 2. That the survey and patent to Nicholson, more than twenty years before plaintiff’s warrant issued; the sale to the Commonwealth, and by it to the defendant, fifty years having elapsed, raised a conclusive presumption that the survey was made. The court replied in substance, that if there was an entry in 1804, by Thomas, the presumption would not be conclusive as against his title, as twenty years had not intervened between the Nicholson survey and the inception of his title.</p> <p>3. That if not conclusive, it could only be rebutted by showing there was no survey in fact; the facts that no marks corresponding in date were to be found, and that the survey interferes with old and adjoining surveys, was insufficient. The court affirmed the proposition, unless the jury should believe, from the whole evidence, there was no actual survey, adding, that a survey was unnecessary where the bounds of old surveys fixed those of the new; but if they did not correspond, a survey was necessary.</p> <p>4. That if a block of surveys was made in 1794, nearly surrounded by older ones, marking lines of old surveys on the division lines was not essential;. and the interference with older surveys after this lapse of time was immaterial. The court affirmed this, saying, however, that the finding of the lines of the adjoining surveys to the north in 1773, was not sufficient Jo establish a survey, if the jury believed no survey was made.</p> <p>The introduction of the plaintiff’s case to the jury, in the course of cross-examination, to’matters not having reference to the examination in chief, is settled to be erroneous.</p> <p>The presumption, from lapse of time, of the validity of our survey, was not to be left to the jury to be rebutted. 1 Binn. 146; 5 Serg. & Rawle, 104; 3 Serg. & Rawle, 283 ; Spring v. Caul, 2 Watts, 390 ; Martz v. Hartley, 4 Watts, 261; Lilly v. Kinzmiller, 1 Yeates, 28 ; 2 Yeates, 311.</p> <p>If there was a block of warrants, the division lines need not have been marked.; McB.ea v. Plummer, 1 Bin. 287; and the drafts we gave in evidence showed there was such a block, of which this was one of the surveys.</p> <p>After a witness had stated his knowledge of the location of a survey, it was proper to ask him if it ever was located on the land, or merely in the office of a surveyor on a draft.</p> <p>Twenty-one, and not twenty years, is essential to raise a presumption of a survey having been duly made. 13 Serg. & Rawle, 121, 384, and 3 Watts & Serg. 222.</p> <p>If a mere chamber survey, the land remained vacant. As to the point that this is one of a block, they should have proved it by the warrants and surveys. But there was no evidence whatever of the other warrants constituting the block. Spring v. Caul, 2 Watts, 394. Either this, or a distinct survey of the tract they claimed, was essential to avail themselves of the older adjoining surveys as boundaries.</p>

<p>Notice of protest is not required to render a firm liable on an endorsement,'where all the members of the firm are members of the house which drew the bill.</p> <p>A bank receiving a bill for collection, or as collateral security only, is bound to follow the usual course of business, and give notice of non-payment to the endorser; but if the endorser have knowledge of the non-payment, or for other reasons the notice be unnecessary, the bank will not be liable for a neglect to notify.</p>

<p>An agreement to discharge a surety of a tax collector, and accept another in his place, does not in fact discharge him until the agreement has been performed, and the substituted surety has given a bond: for the new security must be such a one as would have been a good original security under the act of Assembly.</p> <p>Whether a verbal discharge, of which no minute was made, would be effectual. Qu.</p> <p>A notice by a surety to the creditor to push the principal or give him clear, and that principal’s property would pay, and he, the surety, would pay nothing, will not discharge him in the event of the creditor failing to sue the principal.</p>

<p>In error from the Common Pleas of Northumberland county.</p> <p>July 28. This was ejectment for the moiety of a tract of land, which Pleasants claimed as purchaser from Bellas, whose title was alleged to be derived from Willianj. Ross, the ancestor of the defendants. The defendants claimed under an older title subsequently purchased, and also relied on the defect in the proof of plaintiff’s title.</p> <p>The plaintiff gave in evidence the following instrument:</p> <p>“ I agree hereby to convey, and do grant, bargain, and sell, to Hugh Bellas, one undivided moiety of the tract of land on which I live. In consideration of one dollar, value received, March 20th, 1822, conveyed to the said Hugh Bellas, in fee, viz.: to him, his heirs and assigns, for ever.</p> <p>-_- [l. s.]</p> <p>« This is to certify, that I do agree, and am willing to comply to the same. William Ross.</p> <p>« Witness present,</p> <p>John Mectjm.”</p> <p>He then offered an agreement under the hands and seals of Bellas and Augustavius Ross. Having proved a search for the subscribing witness, and that he lived in the state of Ohio, and having given proof of his handwriting, and of that of Bellas; and it being admitted that William Ross died prior to 1830, and that Augustavius Ross was his eldest son; the defendánt objecting, the court admitted the fol- ■ lowing paper:</p> <p>This is the 1st exception. It was dated August 9, 1830, and it was thereby agreed, that a warrant should be taken out in the name of Augustus Ross, for fifty acres, in, &c., including the improvement of the heirs of William Ross, deceased; one-half of which land was to be the property of said heirs, on their paying one-half of the purchase money and expenses respecting the title in one year from date; “ but the right and title to the whole should be H. Bellas’, until, that time, in fee;” on the payment being made to him, he should hold but one moiety in fee. Bellas agreed to advance the purchase money and expenses, to be repaid by Aug. Ross, with interest, who also agreed to convey to Bellas, or his appointee, the title under said warrant, in trust for the purposes of the agreement.</p> <p>Plaintiff then gave in evidence the record of an ejectment by-William Ross, to August Term, 1822, for the same property, wherein Aug. Ross was substituted as defendant, on the decease of William,, in which suit there was a verdict for defendant, in 1825, and proved the payment by Hugh Bellas, of $20 87, the costs on an appeal from arbitrators in 1823, to the prothonotary. This was offered to show part of the consideration of the agreement above stated. Its admission constitutes the second exception. It was admitted that Hugh Bellas was Ross’s counsel in this proceeding. He then showed a warrant in August, 1830, interest from 1808, endorsed, “ Executed 12th January, 1831;” and a receipt generally for purchase money and fees; also a certificate that no survéy was to be found in the office of the surveyor-general.</p> <p>Having proved a search among the papers of the deputy, he proved the lines of three sides of the survey were found on the land, corresponding with the date of the alleged survey. Also, by the deposition of the surveyor, that he did make the survey on the warrant, in the presence of Aug. Ross, his brother, and a woman he supposed to be the sister, who made no objection to it, or to the warrant. On cross-examination, he stated, he was employed by Bellas, who stated the Rosses had agreed he was to have one-half of the land; that finding the survey interfered with one for Daniel Levy, he refused to return it, but was instructed to do so by the surveyor-general, with a note of the interference. From all Bellas’s acts and instructions, he (Bellas, or the surveyor-general) considered the survey good, and Ross’s claim good; nor did they abandon it or intimate any intention of doing so.</p> <p>Defendant showed a patent to Philips, in 1830; the record of a judgment against him in 1835; a levy and sale of the tract patented in his name ; and an agreement for a sale of the premises, (those in dispute,) by the.sheriff’s vendee to the defendants here, in 1836 ; consideration, $275; and gave evidence of the payment of the consideration.</p> <p>Also, a judgment for $15 10 on the article of 1830, by Bellas against Aug. Ross, in 1843, and a sale of his interest to William Ross.</p> <p>They also proved the survey to Aug. Ross was within the marked lines of a survey for Daniel Levy: the warrant to Levy was not, however, produced.</p> <p>> They then gave evidence of improvements, since the purchase of the Philips’ title.</p> <p>The fifth exception was for the court refusing evidence that the land was increased in value by lapse of time. The sixth, that the survey for Ross was within the lines of Levy’s warrant: rejected, because that survey was not given in evidence.</p> <p>The court also rejected evidence that Bellas, on the trial of Williams’s ejectment, gave evidence of this warrant, and that he would set up this as a defence. This was not included in the assignments of error on the paper book.</p> <p>The court, (Anthony, President J.,) having recapitulated the evidence, said the counsel for the parties had included all the law of the case in their points.</p> <p>The plaintiffs’ points were, 1. That sufficient was shown by them, ■unless defendants had proved a good title. 2. There was no evidence of a survey in the name of Levy, which would prevent a verdict for plaintiff. 3. The patent to Philips, the sheriff’s sale, and the proceedings; against Aug. Ross were not sufficient to bar a recovery. 4. There was no evidence of laches to postpone plaintiffs. 5. That on the whole evidence, plaintiff was entitled to recover. All these were answered affirmatively.</p> <p>1. The defendant’s first point was, that the article of 1822 was an agreement to convey; that the lapse of twenty-three years, without an attempt to enforce the agreement, the original party having died, and the plaintiffs having stood by, and seeing valuable improvements made, it ought not to be enforced.</p> <p>Answer. — The agreement or deed of 1822, the defence of the ejectment, the application for, and obtaining the survey, and the evidence relating to such survey, are sufficient to entitle the plaintiff to recover; and the improvements by defendant are no bar.</p> <p>2 and 3. If Ross, at the date of the article, had a defective title, or if his sons purchased in a legal title, recovery could not be had. These were answered affirmatively; but the facts were deemed to be in evidence.</p> <p>4, Was as to the effect of a prior survey for Levy, which the court refused to answer as requested, because there was no evidence of such survey.</p> <p>The bills of exception above stated, the want of answer to the first clause of defendant’s first point, and the answers to plaintiffs’ and defendant’s points, were the errors assigned.</p> <p>argued that the paper of 22d March, 1822, is an executory agreement to sell, and could not be enforced against the heirs of Wm. Ross, after such a lapse of time and improvements. The warrant of 14th August, 1830, and survey, gave no title, because the owner of the warrants knew that land had been previously appropriated; and because the return of survey was not accepted by surveyor-general; for, by the return, it appeared, that the land had been appropriated. The levy and sale by the sheriff; of an undivided third of the land, as the property of Aug. Ross, at the suit of H. Bellas, estops the plaintiffs from claiming an undivided half of the interest so sold, for the benefit of plaintiffs’ vendor.</p> <p>contended that the plaintiffs in error, as heirs of their father, (who sold to Mr. Bellas, under whom defendant in error claims,) were mere volunteers, and that they being in possession, could no more purchase up an outstanding title to destroy the right of their father’s vendee, than their father himself could ;• but that such purchase of an outstanding title would enure to the use and benefit of such vendee.</p> <p>That Augustavius being the only child of age when his father died, very properly took measures with his father’s vendee, to secure for the younger children the advantages of the sale; and they would be bound by what he did in furtherance of that object.</p>

<p>Error, from the Common Pleas of Union county.</p> <p>July 29. Assumpsit for work done. Plaintiff called a witness to prove the number of days his men had been employed. Witness stated he worked for plaintiff as his apprentice, while he was doing the work for defendant; that he kept an account of the work done by plaintiff and his hands; entries were made in the book on the last day of each week that they were engaged in the matter; if only one day in the week, at the end of that day; that he was present every day; that he had counted but one, and on that day was twice at the house, and saw the men engaged in the work.</p> <p>Plaintiff then offered the book containing the entries; defendant objecting, the court said the witness might give from the book the number of days, if he knew it by looking at the list. The witness then stated the number of the days.</p> <p>This was the question here.</p> <p>The book offered and received in evidence, was not such a book of original entries as is recognised by law. Walter v. Bollman, 8 Watts, 544; Rogers et al. v. Old, 5 Serg. & Rawle, 404; Wright v: Sharpe, 1 Brown R. 344; Nicholl v. Baldwin, 4 Watts & Serg. 290, 10 Watts, 249,</p> <p>The work was not performed by the job. The plaintiff resorted to the very best mode of proving the work done, the hands by whom it was performed, and the number of days each worked, viz.: a book kept by a disinterested witness, who swears that he made the entries at the end of each week, and that the book is correct. McCoy v. Lightner, 2 Watts, 350.</p>

Error froln the Common Pleas of Northumberland county. July 29. This was an action by Gibson and others, named in the subscription paper stated below, to recover the first instalment as therein stipulated for.

In error from the Common Pleas of Union county. July 29. This was an action in 1844, by a witness in a cause tried May Term, 1835, to recover his daily pay.

In error from the Common Pleas of Northumberland county. July 29. In assumpsit, the plaintiff having proved a note drawn by defendant, and endorsed by himself, offered the deposition of Small, taken in a previous suit between the same parties. It was objected to, because not taken in the present suit, and because the notes referred to were not produced or identified.

<p>The fees of officers are part of the plaintiff’s costs which he is supposed to have paid to them, and which he collects ostensibly for himself, but actually for them, by his execution : and such has been the practice from the foundation of the state as a province.</p> <p>Where a judgment was obtained against a defendant, and the debt, interest, and costs of the suit were arranged by the parties thereto; held, that the officers, under the practice which had so long prevailed, might proceed to collect their fees from the defendant, by suing out an execution against him,.in the name of the plaintiff, notwithstanding the plaintiff’s agreement to pay such fees in exoneration of the defendant.</p>

July 30. This was an appeal by John Beckley, one of the administrators with the nuncupative will annexed of Daniel Beckley, deceased, from the'deeree of the Orphans’ Court of Northumberland county, dismissing a certain exception to the report of the auditor, arjd confirming the same.

July 30. This was an ejectment against the vendee of the plaintiff’s vendor, in which a conditional verdict was found to be released on payment of certain sums, the original purchase money, ■without interest. The main question was raised on the plaintiff’s exception to the charge of the court, as to the right to interest on the unpaid purchase money.

In error from the Common Pleas of Union county. August 1. Assumpsit by Horton against Tamany, late partners. The defendant, among other matters, pleaded the discharge of Tamany as a bankrupt before the commencement of the action before the justice, and contended on the trial that this was a fatal defect.

Sept. 8. This was an appeal by John Cornelius, the plaintiff in error, who was defendant below, from the judgment of a justice of the peace, in an action of trover and conversion brought against him by William Garwin, administrator of G. Vanarsdallen, deceased, the defendant in error, who was plaintiff below. The original suit was instituted before the justice, in May, 1844, and judgment therein for $75 in favour of the plaintiff.

<p>A lot of land, part of a larger tract, was conveyed “ to the employers of a certain school,” to hold the same for an “ English school-house, and no other purpose.” A schoolhouse was built upon the lot, and occupied as such for some years, and was then discontinued for seven years, when the vendee of the original grantor, who had purchased the larger tract, entered upon the lot, and removed the school-house. Trespass being brought against the vendee by them residing in the vicinage; it was held:</p> <p>That the “ employers, &c.,” not being incorporated, were incapable of taking the fee; and that the legal title remained in the grantor, not to the use of the public at large, but to that of the employers.</p> <p>That the legal title of the defendant entitled him to hold the possession against any one who could not show such an equity as a chancellor would enforce.</p> <p>That the purpose for which the lot was to be used was the substantial consideration for the grant, upon the terms of which, the nature of the plaintiff’s equity depended.</p> <p>That a school like this is not a charity: and the doctrine, that courts will not let a charity fail for non user, is inapplicable to such a school.</p> <p>That the discontinuance of the school for seven years raised a legal ■ presumption of abandonment; and this abandonment being irretrievable, the vendee had a right to enter.</p>

Sept. 9. John Jordan, by his next friend, David Jordan, the plaintiff in error and plaintiff below, brought trespass against H. S. Frink, a constable, and H. M. Brackenridge, an execution creditor, before a justice of the peace, to recover damages for seizing and taking away a mare, which the plaintiff alleged was his property, on an execution against David Jordan, the father of the plaintiff.

<p>In a suit by landlord against tenant to recover rent for demised premises, destroyed by fire during tenancy; evidence that the property was insured, and landlord received insurance money, or that landlord received a sum of money for los3 of said property, out of a general relief fund, is immaterial to the issue, and cannot be used as a defence.</p> <p>If a landlord take possession of the ruins of his premises destroyed by fire for the purpose of rebuilding, without the consent of his tenant, it is an eviction; if with his assent, it is a rescission of the lease, and in either case the rent is suspended.</p>

<p>Error to the District Court of Allegheny county.</p> <p>September 10. This was a case stated for the opinion of the court, in an action of ejectment, brought by the heirs at law of Margaret McClure, deceased, the plaintiffs in error, against Hezekiah Douthitt, George Wilson, and Thomas Stevens, the defendants in error.</p> <p>The facts, as collected from the opinion of his honour Judge Grier, in the case stated, are the following: .</p> <p>« Alexander McClure died seised of the land in dispute, having first made his last will and testament, which, so far as material to this case, was as follows : ‘ As to my worldly estate, I dispose of it as followeth: — To my beloved wife Martha, I leave all my personal estate at her disposal, and all the benefits of my real estate during her natural life. And having given my sons their share of the land, there remains one-half of the tract my son William and I live on, in my right, which / bequeath to my daughter Margaret, wife of Francis McClure, to be divided according to the conveyance. In short, my will is, that Francis and Margaret, my son-in-law and daughter, have my share of that land.’ Alexander McClure had two sons, to whom he had advanced their share of his land in his lifetime.</p> <p>«To Richard, he had given a farm of a hundred and ninety-three acres, and to William, the undivided half of the land now in dispute, and referred to in the will.</p> <p>« On the 30th of May, 1805, and after the death of Alexander McClure, Francis McClure executed and acknowledged a deed of the interest of himself, and Margaret his wife, in this tract of land, to William McClure; but his wife, although she signed the deed, and was named as a party in it, never acknowledged it.</p> <p>“ On the 10th of April, 1810, William McClure conveyed to the defendant, Douthitt.</p> <p>« The plaintiffs were seven of the nine children and heirs of Margaret McClure, who died before her husband, Francis McClure.</p> <p>“ The plaintiffs contended, 1st. That the devise in the will of their grandfather, Alexander McClure, was to their mother; and their mother never having conveyed her title, that they were of course entitled to recover.</p> <p>“ 2. That if the devise be construed, as a joint devise to the husband and wife, that is, a devise for life only, and not in fee, that they were entitled to recover, as heirs of their grandfather.”</p> <p>His honour Judge Grier, (omitting his argument,) said in substance, as follows: — “ The whole case turns on the construction of the will of Alexander McClure; for plaintiffs’ counsel very properly conceded, that if the fee is given to their father and mother jointly, they, the plaintiffs, are estopped by the deed of their father, as he survived their mother.</p> <p>“ 1.1 think these points are so plainly against the plaintiffs, that they will hardly admit of a dispute. There is no necessary contradiction between the two clauses of the will respecting this property. The first gives it to Margaret, the second to her and her husband jointly; by the last, her fee is conditional, and not absolute, and dependent on her surviving her husband; and even if the last clause were contradictory, and not merely explanatory and restrictive of the estate granted in the first, the last would prevail. If the words of this will do not convey a joint estate to the husband and wife, it would be hard to tell what words could convey such an intention. They are 'these: < In short, my will is, that Francis and Margaret, my son-in-law and daughter, have my share of that land.’ ”</p> <p>The court directed a verdict and judgment to be entered for defendants ; whereupon the plaintiffs sued out this writ, and assigned here the judgment of the court below for error.</p>

September 11. This was an appeal from the judgment of a justice of the peace. Robert Criswell, the defendant in error, commenced this action, which was trover for a car, against John B. Millar and John N. Millar, the plaintiffs in error, before a justice of the peace. It appeared that the amount of damages claimed by the plaintiff as stated on the docket of the justice, was $20.

Sept. 11. This was an action on the case brought by John Rowand, plaintiff below, and defendant in error, against Arthur McGill, Edward W. Hays, James Stewart, Griffith Bennett, and Prescot Metcalf, defendants below, and plaintiffs in error, to recover the value of two trunks and their contents.

<p>Where it appeared on the docket of the justice, that the action was trover for a mare of the value of $50, and the action was submitted by consent to referees, who awarded for the plaintiff a sum less than $20, it was held, that the plaintiff was entitled to an appeal.</p> <p>Where an appeal from the judgment of a justice of the peace was taken on the 17th of June, 1845, and entered to October Term, 1845, and the motion to quash the appeal was not made until the 6th of December, 1845, after the cause had been referred to arbitrators, a trial upon the merits had before them, and their award filed; it was held, that the application to quash was too late.</p>

Sept. 14. This suit was commenced before a justice of the peace, by David Sands, the plaintiff in error, against George Rolshouse, the defendant in error. The justice gave judgment in favour of the plaintiff; whereupon the defendant appealed. The cause was marked for trial, and put upon the trial list, for October Term, 1845.

This was a writ of error to the Common Pleas of Allegheny county.

<p>In taking an inquisition of death, super visum coyyoris, the coroner, as a public agent, has authority to order a post mortem examination at the public charge; and the physician or surgeon employed by him, to perform such service, as employed by the county, and is entitled to a reasonable compensation from the county, for his services.</p>

September 14. This was an action of trover for certain lumber, brought by Andrew Purdy, the plaintiff in error, and plaintiff below, against Henry McCullough, the defendant in error. The material facts out of which the controversy in the present case arose, are the following: One Edward Wright held a note, given by a certain George F. Eldred,. for $147, payable in lumber.

<p>Error to the District Court of Allegheny county.</p> <p>Sept. 15. In the court below, the action was debt, brought by the Allegheny County Mutual Insurance Company, on the premium note of Thomas A. Hillier, a member of the said company. The defendant claimed to be a sufferer by the fire, in the city of Pittsburgh, of the 10th of April, 1845, and pleaded non-assumpsit, payment with leave, &c., and set off. On the trial in the court below, after the evidence had been closed, the parties agreed that the evidence be considered as a case stated, in the nature of a special verdict, for the opinion of the court, on which the court should render judgment, with leave to either party to take a writ of error. The questions raised and submitted under the evidence were the following:—</p> <p>1. Whether the defendant’s loss came within his policy.</p> <p>2. If it did, whether it could be set off in this action; as the funds of the company were admitted to be insufficient to pay all the losses sustained by the fire.</p> <p>The material facts of the case are fully stated in the following opinion of his honour, Judge Grier, on the case stated. .</p> <p>“ This is an action brought by the Allegheny County Mutual Insurance Company, against Thomas A. Hillier, on his premium note of $160, given for the insurance of defendant’s stock of looking-glasses and furniture in a house in Wood street, on which live per cent, was paid at the time of insurance.</p> <p>Owing to the losses sustained by the company from the fire of the 10th of April last, the company have made calls on the members for the balance due on their notes, and the additional one per cent, according to the form of the charter, and now demand the balance of defendant’s premium note, $152, together with one per cent, on $3200, the amount insured, (viz., $3200,)in all the sum of $184, with interest from the 10th of July, 1845.</p> <p>The defendant claims to set off' the sum of $100 on account of Iiyury sustained by the removal of his goods from the building at the time of the great fire in April, 1$45. His house was not on fire, nor were his goods injured directly by the fire, but the fourth house from his was at one time on -fire, (though afterwards the fire was extinguished,) and there was a reasonable ground of apprehension, that his house would be consumed in that terrible conflagration, such as would justify the precaution of removing his goods to save them from the fire.</p> <p>On these facts, two points have been submitted to the court.</p> <p>1. Whether the injury thus sustained by the defendant’s goods is a loss within the policy, for which he has a right to claim contribution from the plaintiffs; and,</p> <p>2. If it be, whether it can be set off in the-present action, it being admitted the company is wholly insolvent) and the amount of its funds insufficient to pay all its losses. . ■</p> <p>By the policy of insurance, the plaintiffs covenant to settle and pay to the defendant all loss or damage, not exceeding, in the whole, the said sum of $3200, which shall or may’ happen to die aforesaid property by means of fire during the time this policy remains in force.</p> <p>Can it be said that the defendants’ goods in this case have suffered damage by means of fire ? I think not. ■ His goods were not burnt} they were not injured by the fire; thp house containing them was not on fire, nor was it necessary to remove them in order to save them from burning, although- the removal was but a prudent precaution, under the circumstances of the 'case. Admitting that the insurers would be liable in cas'es where goods are injured by the fire engines in .putting out a fire, when the building containing the goods was actually on fire, or- by the removal of the goods under the same circumstances, although the goods may not have been burnt, but in fact were injured by water, or by breakage in the act of saving them from fire; yet this must be on the ground that the fire • is the proximate cause of tire injury, and by a liberal construction of the policy,'the goods may be said to have suffered damage by means of fire; and I believe it has been the custom of insufers to pay losses incurred in such cases. • But in the present case, the fire, though it may be said to be the remote cause of the injury, the causa causans, it cannot properly be called the proximate cause. The property was not on fire, neither the house which contained it, nor were the goods injured by endeavours to extinguish the fire, or save them from it. The plaintiffs have not insured against apprehensions of fire, and the injury sustained originated not from necessity to save them from impending fire, but from the prudent anticipation of damage from it.</p> <p>I have not been able to find any case in point. The case of the City Fire Insurance Company v. Corlies, 21 Wend. 367, cannof be construed as an authority against my present position. In that case, the'goods insured ’were destroyed by the house being blown up by the city authorities to stop the great fire in New York, and to save it and others from being burnt, as it otherwise certainly would. But the insurers in that case were held liable, because fire was the proximate cause of the loss, for the court there say, “ The company agrees to make good unto the assured all such loss or damage unto the property as shall happen by fire. Thus far there is no limit to their undertaking. If the loss happen by fire, unless there was fraud on the part of the assured, which is not pretended in this case, it matters not how the flame was kindled, whether it be the result of accident or design, whether the torch be applied by the honest magistrate or the wicked incendiary, whether the purpose was to save the city as in New York, or the country as at Moscow. And I may add, whether the fire be applied to gunpowder in the basement, or by a burning shingle on the roof. Hence, it has been held, that the insurers are liable where the house has been burnt by the negligence of servants, or of the owner, because the fire is the proximate cause of the loss and the negligence, but the remote cause. See Walker v. Maitland, 5 Barn. & Aid. 174; Bush v. Insurance Company, 2 Barn. & Aid. 73; Waters v. Insurance Company, 11 Peters, 222; Insurance Company v. Coulter, 3 Peters, 222; 10 Peters, 518.</p> <p>Nor can this case be compared to those cases in marine insurances, where, to escape from some imminent peril that is insured against, it is necessary to cut away the mast, or a cable, or throw overboard a part of the cargo, or to cases of general average from jettison, &c. This doctrine is founded on the necessity of a sacrifice of a part in an imminent peril, to save the remainder, and is an act beneficial to the insurer. This doctrine might apply to cases of injury necessarily inflicted on property in extinguishing the fire, but cannot apply to accidental injury to goods incurred from a removal of goods as precaution against injury by an apprehended fire.</p> <p>The decision of the first point being conclusive of the case, an opinion on the second is not necessary. But I think that point, also, is against the defendant. By the peculiar constitution of mutual insurance companies, the insured are also the insurers. If the company be insolvent, and their whole means are insufficient to pay all their losses, their whole fund must be collected, and fairly apportioned according to their legal parity, or by equitable apportionment. This could not be done if set-off were permitted.</p> <p>Let judgment be entered for plaintiffs, for tbe sum of $184, and interest from lOtb July, 1845, $8 5Q ; in all, $192 50.</p> <p>The defendant, thereupon, sued out this writ of error, and assigned in this court the following error :</p> <p>The court erred in directing judgment to be entered forthe plaintiffs.</p>

<p>Where the original sealed protest of a foreign bill of exchange was destroyed by fire, and the foreign notary, who made the protest, testified, that he was at the time a notary public duly commissioned, that his term of office had expired, that no successor to him had been, or could be appointed, and that the laws of the state gave him no authority to certify any document under his former notarial seal; it was held, that a sworn copy of the original protest by such foreign notary himself, being the best evidence of which the nature of the oase admitted, ivas sufficient to supply the want of a seal.</p> <p>Where all that is necessary to constitute notice to the drawer of a foreign bill of exchange of the protest thereof, is proved by the testimony of the foreign notary, except that he did not expressly say, that the notice put inte? the post-office by him was addressed to the drawer at the place where he resided; the legal presumption is, that the notary did all that the law exacted of him, as an officer or an agent.</p> <p>The five per cent, allowed by statute on the protest of a foreign bill of exchange, need not be specially demanded in the declaration. t</p> <p>In an action by the holder of a dishonoured foreign bill of exchange, against the drawer; the plaintiff is entitled to the amount of the bill and five per cent, additional, with interest on the whole from the date of the protest to the date of the judgment below.</p>

<p>A.'B. and C. formed a partnership in 1830, under the firm of B. & Co. In 1833, B. went out of the firm, but continued to hold his interest in the real and personal property thereof. In 1836, changes in those having an interest in partnership property having taken place, and B. having then sold out his whole interest to A., A. gave to B. a bond of indemnity to save him harmless from all loss or responsibility on account of the partnership of B. & Co., or any modification therein by change of parties, &c. In 1838, one M. recovered a judgment against B. and another, as members of a firm of A. & Co. B. having paid this judgment, brought suit against A. on the bond of indemnity, alleging, that A. & Co. was a modification of B. & Co. Held, (1st) that B., to support this action, must prove, first, the payment, or at least recovery of the judgment against A. & Co.; second, that he was a member of the firm of A. & Co., of which the judgment is prima facie evidence, but not conclusivo; third, that A. & Co., was a modification of B. & Co. (3d) A. never having been a party to the shit against A. & Co., the writ not having been served on him, and having.no notice thereof, may controvert the record of that suit, to show that B. was not a partner of A. & Co., and that there was a good defence known to B. of which he could, and ought to have availed himself. (3d) If B. suffered judgment to go against him either through ignorance, carelessness, or design, he cannot visit the loss on A., who only promised to indemnify him from responsibility arising from the firm of which he ■ had been a member. (4th) The expression in the bond of indemnity of 1836, “ that the said B. has now sold out his whole interest to A,” is not irreconcilable with proof, that B. ceased to be a member of the firm, or that the firm ceased to exist, in 1834.</p> <p>A record of a suit in Ohio, attested by the deputy clerk of the proper court — a law of that state enabling such deputies to perform the duties of their principals — and certified by a judge of that court, of which it appeared by the record that another member was the chief justice, was neither attested, nor certified as required by the act of Congress of 1790, and on both grounds was improperly admitted in evidence.</p> <p>A court is not prohibited from receiving a record, although not certified according to thi act of Congress, if proved as a foreign record.</p> <p>A receipt endorsed upon a record is part of it, and, as such, proper evidence.</p>

<p>Error to the District Court of Allegheny county.</p> <p>September 16. This was an action of ejectment, brought by the plaintiff in error to recover from the defendants in error the undivided moiety of a„tract of land, containing- about one hundred and seventy acres, situated on the waters of Chartier’s creek, in Alle: gheny county. • -</p> <p>The facts of the .case, necessary to elucidate the points decided •here, are fully stated in the opinion of the court.</p> <p>On the trial, in the court below, the plaintiff proposed to ask a witness the following question, viz.: “Whether the intention of Mrs. Jones, the testatrix, as to the alteration of her will and the object of it, were not well known and talked of in the family of Mrs. Jones, both before and after the alteration was made ?” To this question the defendants objected, and the court sustained the objection! This was plaintiff’s Jirsi bill of exception.</p> <p>The plaintiff th.en offered in evidence, the separate declarations of Eleanor McIjCee, made since her marriage with Alexander McKee, admitting that she held the land in dispute in trust for the plaintiff. The defendant objected, that the admissions of the wife were not evidence against the husband. The court sustained the objection; .and this decision of the court constituted plaintiff’s second bill of exception. By the court, (Judge Grier:) This decision is not to be taken, as excluding declarations of the wife made in the presence of ■the husband, or .declarations of the husband himself. '</p> <p>The jury, under the instructions of the court, found a verdict for the defendants; whereupon the plaintiff sued out this writ of error, and assigned for error here the points involved in his bills of exception ; and that, on the whole evidence, the case .ought not to have been .taken from the jury by the court, but submitted to their deliberate consideration.</p>

Sept. 17. This was an action of debt on a judgment bond for $997 54. A declaration was filed, and judgment confessed in favour of plaintiff below for above sum. On the 2d December, 1845, an affidavit of defence to the whole of plaintiff’s claim was filed, and, on motion, the judgment was opened, and the defendant let into a defence. The cause was ordered by the court to be put on the trial list.