Volume 3 — Penrose & Watts's Pennsylvania Reports

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an action of debt upon a bond, in which Michael Campbell and Charles Campbell, executors of Charles Campbell, deceased were plaintiffs, and George Knox was defendant. The facts of the case appear so fully in the opinion of his honor, who delivered that of the court, that they need not be again stated.</p>

This was a feigned issue to try the right to money, in which Thomas Sheioell was defendant, and William Meredith plaintiff. Held: extended. A lib. fa. issued to March term, one thousand eight hundred and twenty-one, which was returned with an inquisition annexed, valuing the lands at three hundred dollars per annum ; which inquisition concludes in these words, “ which said messuage, &c. I, the said sheriff, have caused to he delivered to the said Maurice and…

Writ of error to the Common Pleas- of Indiana county. Peter Yarnell executed a single bill by whieh he promised tc? pay Thomas Johnston, on the first of December, one thousand eight hundred and twenty-nine, two hundred barrels of salt. Ther payment of which, together with other single bills, was secured by a mortgage on a tract of land.

Nicholas Long guardian of the heirs of Michael Welker, deceased, obtained a judgment against Jacob Welker before a justice of the peace in 1813. The defendant sued out a writ of certiorari, and upon the return of the record of the justice, failing to file exceptions, judgment of nonpros, was entered, agreeably to the rules of court.

This was a case stated in the nature of a special verdict, in which The Commissioners of Butler county were plaintiffs and Adam Henry was defendant.

Writ of Error to Westmoreland County. This was an action on the case in the Court of Common Pleas, brought by the plaintiff, Peter Altman, to compel the performance of a parol agreement made between him and the defendant, Henry Keiffer, on the 3d day of June, 1809, for the purchase of a certain lot of ground in the village of Adamsburgh, in said county, by the plaintiff from the defendant. The plaintiff paid the purchase-money agreeably to the contract.

<p>Error to Fayette county.</p> <p>In the court helow, The Commonwealth was the plaintiff, and sued out a writ of “ summons in debt, not exceeding four hundred dollars” against John and Jacob Springer, executors of Dennis^. Springer, deceased.. A. declarptipn’ w^s filed claiming ninq hqm„ ¿red dollars. The writ was served upon the defendants, who did not appear; and the court on motion of the plaintiff’s counsel, on the second day of the term to which the writ was returnable, rendered a judgment fgr the jffaiqtiff: which they afterwards refused to open.</p> <p>The errors assigned were, first, The variance between the writ and count. Second, That the judgment was rendered in pursuance of the provisions of the apt qf qne thousand eight hundred and six, in an action commenced under the act of one thousand seven hundred and twenty-five.</p> <p>Cited Wingerl v. Connell, .4 Serg. 8? Rawle, 237.</p>

<p>Although an owner of real estate may he entitled to recover, in an action on the case for uso and occupation, against one who has enjoyed the possession ; yet unless he can prove a demise, and a certain rent reserved, he cannot distrain.. And in an action of trespass against his bailiff, he cannot justify by evidence of what the annual value of the premises was.</p> <p>In an action of trespass against a bailiff for distraining goods, he can only justify himself by proof, that a certain rent was reserved, and that it was in arrear. The mere warrant of a landlord is no justification to a bailiff, although he be a constable or sheriff '</p>

<p>The Landlord and tenant act was only intended to he applied to the plain and ordinary case of a demise at a certain rent, and a tenancy, whose termination, is independent of a contingency. If therefore it appears upon the trial of a cause, originating under this act, before two Justices, from whose jurisdiction it was removed to the Common Pleas, by the affidavit of the party,, that it was not such a case as that act intended to provide for, it will'be fatal to the proceeding.</p> <p>The rule of policy, which protects a husband from the admissions of his wife, is inapplicable to such as are in the nature of facts in respect to which, the presumptions to which, they give rise, are not drawn from the credit of the party, but' the fact that such admissions were actually made. In a case, therefore, where the husband is sought for at his own house, for the purpose of making a tenderte him, and his wife refuses to^ive information where he may be found, and declares that iher husband will not except the tender, such declarations may be given in evidence. 1</p>

<p>ft is error 16 Siipercecie the evidence of the cause of action, by counter evidence iri anticipation of its effect.</p>

<p>Error to the Common PleaS of Washington County.</p> <p>This was Rn action of Covenant in which Philip C. Pendleton and others, executors of Philip Pendleton, were plaintiffs, and Elizabeth Swearingen, executrix of Jlnclrao Swearingen, who Was the surviving1 executor of Van Swearingen, was defendant. There was a former suit between these same parties previously to 1807. In 1814 it was tried, and a verdict and judgment Rendered for the plaintiff; — in 1818 this judgment was reversed. In this süit á commission issued to Virginia to take the testimony of Witnesses, which was returned and filed in 1807. These depositions were offered in evidence in the present suit, which was brought in 1826; they were objected to by the defendant, on the ground that they were in the hand-writing of Philip C. Pendleton, one of the plaintiffs. • The proof satisfied the court of this fact; but it appearing, also, that they had been filed in court in 1807, read on the trial of that cause before arbitrators and in court, without the objection which is now made, and that the deponants are dead; the objection was over-ruled; to which the defendants excepted.</p> <p>A deposition written by an attorney, agent, or party, cannot btí read. Summers v. McKim, 12 Serg. 8y Rawle, 405. middleman v. Masterson, 1 Penn. Rep. 454. Patton v. Patton, I Penn. Rep. 200. The fact of its having been read before arbitrators does not differ the case. Cox v. Norton, 1 Penn. Rep. 412. Starel v. Chambers, 2 Yeates, 232, in note. 1 Harris 8? Me Hen. 230.</p> <p>Contended that it was the duty of the party, under the strong circumstances of this case, to give notice of their objection, and ask the court to suppress the depositions. They, suffering them to be read at different periods of the controversy between the parties, thus lulled the plaintiffs into security until the time when such objection would be fatal. This is not that fairness which the law will sanction. Carpenter v. Groff, 5 Serg. 8y Rawle, 162. 3 Stark. 1249. Strickler v. Tod, 10 Serg. 8y Rawle, 73. Hook v. Hackney, 16 Serg. 8y Rawle, 389. Sheeler v. Spear, S Bin. 130. McKim v. Somers, 1 Penn, Rep. 305. 7 Wheaton, 453. 1 Stark. 269. 2 Mad. Chan. 4T2.</p>

This action, in which William Cochran, executor of Chris-, ficen Soxmdn, was plaintiff, and Mcithias Soxman and Cris ticen Soxman, jr. were defendants, originated before a Justice of the Peace from .whose judgment an appeal was entered to the Common Pleas. By consent of parties, all matters in variance between them were referred to three named referees, upon whose award or that of a majority of them, it was agreed judgment should be rendered.

<p>Error tb Veriangó bounty.</p> <p>This suit, in which Jared Woodiborih was plaintiff, and David Rankin Was defendant, originated on the 29 th November, 1821. It was brought Upon a contrast dated the 9th of February, 1S15> by which Rdnkin and Cochran agreed to build a saw mill for* the plaintiff, and <£to have it Completed by November next.” The defendant plead non assumpsit infra sex anrios. The plaintiff requested the court to charge the jufy* “that the statute of limita* tion did not begin to run till Woodworth sustained damage; and that he can recover at any time within six years after the defect iri the work was discovered. The court instructed the jtiry that the Statute of limitation Was not a bar in this case. This opinion Was the dnly error assigned.</p>

This was an action on the case brought by Robert Sprout against John Wilson, for debauching Polly Porter, the alleged servant of the plaintiff. She was sworn, and testified as follows: “That the plaintiff is her brother-in-law; she had resided at his house nine years before the child was born. That on the 27th of March, 1826, she was gotten with child by the defendant; that it Was born on the 27th of November, 1826, at which time she was twenty-eight years old.

<p>Error to Westmoreland county.</p> <p>This was an action of covenant for not conveying a tract of land pursuant to the articles of purchase. William J. Hall was the plaintiff and John B. Connel was the defendant. After the plaintiff had given in evidence the article of agreement between him and the defendant, which contained also a receipt for the hand money, one hundred dollars: the defendant gave in evidence, that previously to the time when he sold the land to the plaintiff he had authorized John Horrell to sell it, and that he had actually sold it at the time when the plaintiff applied to purchase it; which fact was known to the plaintiff, but was not known to the defendant, who resided in the county of Butler. It was also in proof, that when the plaintiff applied to buy the land, he misrepresented its condition and value to-' the defendant. The contract on which this" suit was brought, was in August, and in the following October, and before suit brought, the defendant offered to pay back to the plaintiff the money which he had received, but which he refused to accept.</p> <p>The same offer was made on' the trial of the cause.</p> <p>The court below in answer to a point put by defendant’s counsel, instructed the jury,' that the plaintiff-wds’entitled to recover the money he had paid the defendant, with lawful interest from the time it was paid. That the defendant could not avail.himself of the tender, without pleading it specially, or bringing the money into court on the return of the writ. The defendant excepted to this opinion</p>

<p>It is essential to the right of a landlord to avail himself of the provisions of the “Landlord and Tenant act,” by which to dispossess his tenant, who holds over, that a certain rent for the demised premises, was reserved.</p> <p>‘‘Under the rent of taking caro of the grain of 1'. on the place, and keeping out the cattle,” is so uncertain as. that a proceeding before two justices, under that act/ cannot be supported upon it.</p>

<p>Error to the Common Pleas df Green county;</p> <p>This was a feigned issue, joined in the court of Common Pleas of Green county, under the direction of the court, between Isaac Burson plaintiff and William, Kincaid) John Morrison and Benedict Horner defendants, for the purpose of deciding whether the defendants were entitled to a preference in receiving from thé sheriff of that county the money arising from a sale made by him of •lands, the estate of Dennis Cain, which had been taken in execution.</p> <p>On the 16th of January; 1826, a judgment was entered dn the docket of the court of Common Pleas of Green county by the Prothonotary, upon a judgment bond in favor of John Bell, sr, against Dennis Cain and John Cain for a debt of three hundred dollars with interest from the 12th of the same month. John Cain was merely a surety in this judgment for Dennis. Some time after the entry of the judgment, John Cain the surety died: Dennis Cain the principal debtor surviving, who administered upon the estate of the deceased. Dennis Cain after taking out letters of administration, gave a warrant of attorney to, Andrew Buchannan an attorney of the same court, authorizing him to appear and enter or confess a judgment of revival on the above judgment against himself as the surviving defendant, and also against him as the administrator of John Cain, the deceased, which was accordingly done by an entry of June term, 1828, No. 52. On the 3d of March, 1829, John Bell the plaintiff, for value received,'assigned this judgment to Isaac Burson the plaintiff in error, who afterwards, on the same day, under an agreement made with Dennis Cain the deceased, sealed and delivered a release in the following tei'ms: “I,</p> <p>Isaac Burson, do hereby release-and exonerate the above judgment (meaning the above mentioned) as to the estate of John Cain deceased. Witness my hand and seal the 3d March, 1829, and say it is to be no lien against the estate of John Cain, deceased.”</p> <p>ISAAC BURSON, [l. s.]</p> <p>On the 31st of May, 1828, a judgment for one thousand dollars debt, with interest from the 28th of the same month, was entered upon the docket of the same court, against Leonard Bévins and Dennis Cain, in favor of William Kincaid, John Morrison and Benedict M. Horner, the defendants in this writ of error.</p> <p>On the trial of the feigned issue, the counsel for the plaintiff put several points to the court below, upon which he prayed their direction to the jury. The second is the only one which was argued. It presents this question. — Did the release of Isaac Burson, given by the consent and a¡:>probation of Dennis Cain the surviving defendant in the judgment, and the administrator of John Cain, the deceased co-defendant and surety, release and discharge Dennis Cain or his estate from the lien and payment of the judgment?</p> <p>Upon this point, the court below charged the jury, that “the release of one of the defendants by the judgment creditor, is a discharge of the other. He cannot release the one and hold the other bound. We cannot think it makes any difference (as between the parties to this issue) whether the one released was, in the original contract, a joint.principal or surety: and although Burson may-have been pursuaded to execute the release, by Dennis Cain and Jhe legal representatives of John Cain, yet still the release is a discharge of the judgment, as respects the present defendants; and they have consequently a right to the money, which is the subject-matter of the controversy.” A verdict and judgment were rendered for the defendants.</p> <p>It will not be controverted that as a general rule the release of One of two or more joint debtors, will discharge the rest. Like all other general rales known, it will admit of exceptions. To operate in this way the release should be general. A mere release of the lien of the judgment ought not and cannot operate as a discharge of the debt. What particular form of words will constitute such release has not been judicially determined in this state, but there is a dictum of the Court in the case of the Bank of Pennsylvania, SfC. v. Winger fy Reidebaugh, 1 Rawle, 302, which is. express, that a mere release of.a lien will not discharge the debt. This case very much resembles the present one. The Bank had a judgment against Winger the principal debtor, and Reidebaugh the surety. Reidebaugh?s land was sold, and the Bank believing that the property of Winger was sufficient to satisfy their claim, waived the right of priority in favor of a subsequent judg? ment creditor of Reidebaugh. In the language of the Chief Justice, it waived its preference in favor of a surety to pursue the principal — the very thing that a court of equity would have compelled it to do.</p> <p>Admitting, however, that the release had been such an one as in point of form would extinguish the lien, will not the circumstance of its having been executed with the knowledge and by the request of Dennis Cain, take it out of thé general rule, which has been established in relation to joint debtors? In discussing this question, two points arise, first, the effect of the release as between the parties themselves, second, the effect of it as between the parties and the releasor.</p> <p>As between the parties themselves there can be no doubt. The very case on which the defendants rely, will shew that the rule does not apply to this case. The grounds upon which a release of one of two joint debtors is held to be a discharge of the other is, that it increases the responsibility of the remaining obligor without Ms consent. Judge Huston, in speaking of the rule that a release of one is a discharge of all, in the case of Milliken v. Brown, says, “Has it not its foundation laid deeper than some of the cases suppose, in this, that where several persons have contracted together, and several of them are bound to one, - in a certain way, that one shall not of his own accord, or by collusion with another, change the several responsibilities. ,</p> <p>If, however, as.in this case, the responsibility of Dennis Cain is increased by and with his consent, the .release of the lien against the property of John Cain, cannot discharge the lien against Dennis Cain. On this point Barrington v. The Bank of Washington, 14 S. 4’ R.- 423, 8p Speaker, v. U. States, 9 Cranch, 26, were cited.</p> <p>The second point is as clear as the first. How are third persons effected by this release? To shew that they were not effected, let it be taken for granted that John Cain were still living, and that, his property had been sold, and the proceeds applied to the payment óf this debt — bow then would the case have stood, as between John Cain and the present'defendants? Clearly' John Cain would have been entitled to be'substituted in the place of Isaac Bur son,' and on the sale of Ben nis Cain’s property would have been entitled to the proceeds in preference to the present defendants. On this point 'Fleming v. Beaver 2 Raiole, 128, Sf 1 Raiole 295, were cited.</p> <p>Before the release was executed John• Cain the,surety and releasee died, Thejudgment bond on which the judgment was entered, was joint. It is submitted whether by the death of John Cain, his estate was not discharged, atleastso far as respeols his personal property and other lands not lying within the county of Creen, when the release wás executed. If it was. discharged by his death, the release had nothing to qper^te upon.] And it it was discharged, the administrator as such, could by no act. of his revive the judgment or continue the lien upon the real estate of John Cain. In support of this position a case decided by the Court of Appeals, Va. was cited, 2 Wash. Rep, 136, wherein relief was refused against the Executors of a deceased ob ligor, who was a surety in a joint bond.</p>

This was an action of debt brought iii the court of Common Pleas of Crawford county, by John Tracey against Jabez Goodrich and Jared Shattich, upon an insolvent bond, in the penalty of seventy dollars, conditioned for the appearance of Samuel Lord, to lake the benefit of the insolvent laws.

<p>Articttdments at the common law are not subject to revision on a writ oí- error. But statutory amendments, being- demantlable of right, though involving the exercise of a legal discretion, are.</p> <p>In an action of slander, where the words spoken are so defectively set out as not to be actionable) the declaration may be amended by setting out a good cause of action, providéd the words substituted import a charge generically the same.</p> <p>The omission of the word “firmly” in ah affidavit made to obtain an appeal, is a fatal defect, which cannot be cured by the substitution of a perfect affidavit after the time allowed for an appeal; but such defect in the appeal is waived by the party taking the costs out of court, which were paid by the appellant:</p>

<p>Notice to abidder at sheriff’s sale, that another claims the land, is sufficient to put him in the same situation with regard to a trust, as he as whose property it was, sold. All that is necessary is, to give a purchaser such notice as is sufficient to put him on an inquiry leading to the whole truth. It is not necessary that the notice should contain full, entire, and circumstantial information of every fact which it may be material for the purchaser to know.</p> <p>Notice to counsel in the same transaction is presumptive notice to the client.</p>

Richard E. Bowman brought this action of ejectment against Geo. Tracy, for a house and lot oí ground, with the premises, situate in Smithiield, George township, and occupied by said Traer as a public house, containing forty four perches of ground, number-11 in the plan of. said town, adjoining lots of-.” The writ-contained the same description. The suit was brought to October term, 1823.

<p>It is not necessary to the right of a turnpike company, to recover in an action against a subscriber for stock, that a certificate of stock should betendered before suit brought.</p> <p>The book of the Turnpike company, in which the defendant was credited with the payment of the stock subscribed by him, is prima facie evidence that it was paid; and it is error to reject such evidence, although it should appear to the court that the credit was given, contrary to a resolution of the managers of the -company.</p>

Writ of error to the Common Pléíis of Green coimt}'. This was an amicable action, in which Benjamin Campbell Was plaintiff, and Jesse Kent, Uriah B. Eagen, and Reuben Mickle, were defendants: the issue joined was upon the fact, whe-: ther a certain judgment in the Common Pleas of Green county, at the suit of the present defendants against Samiiel Mickle, was a good and valid judgment or otherwise.

<p>A debtor cannot in an assignment, make a reservation, at the expense ofhis credititors, of any part of his income or property, for his o ven .benefit, nor can he stipulate for any advantage either to himself or family.</p> <p>Such assignment is not only fraudulent and void, as regards the property reserved for the use of the debtor or his family, but is so in foto.</p> <p>When the assignment istainted with either moral or legal fraud, the property does not pass, but remains in the debtor, liable to the execution of those creditors who have not assented te'the assignment.</p>

In this suit, which originated before S justice of the peace, the' jfláintiff in error was the plaintiff below. , The justice rendered á jüdgment upon a re'po'rt of referees in fat'or of the defendant/ from which the plaintiff appealed. The appeal having been fféféetive, the court granted a rule to show cause' why it should nót bes Quashed; and also granted leave' to the plaintiff to file an amended transcript.

This was an action on a bond given by White to Reynolds, conditioned for the payment of $1500, on the 1st of April, 1821; the. consideration of which was one hundred and fifty thousand feet of boards, to be delivered by Reynolds and Crary to White, part at' Maysville and part at Cincinnatti.

Joseph I^yon brought a suit against the .executors of John Walker before a justice of the peace which was . there referred to arbitrators, who made an award for the plaintiff -for one hundred and sixty eight dollars: upon which the justice.entered a judgment; a transcript whereof was filed in the court of Common Pleas in 1821. Pi scire facias P. P: et I). was issued to févivé this judgment, to which the defendants appeared and plead payment toith leave, fyc.

Writ of error to the Common Pleas of Crawford county. In this action on the case, Nathaniel B. Lee was plaintiff, and John Andrews defendant.

This was an action of slander in which James Cary was plaintiff, and Isaac Kellogg defendant. The actionable words were, in substance, that Kellogg charged Cary with stealing a five dollar note. The defendant offered to prove that other persons in the neighbourhood spoke of'their suspicions of Cary, before the time when the alleged slanderous words were spoken by Kellogg.

This was an action on the case for a libel, in which Jacob B. Miller was plaintiff, and John H. Deford was defendant. An action was pending between Mitchell and Snyder in which an award Of arbitrators had been made, .which there was a motion to set aside, on the ground of the misconduct of one of the arbitrators. To establish the fact, upon which it was sought to set aside this award, the deposition of Jacob B. Miller was taken, and sworn to before the prothonotary.

This was an action of ejectment in which Hugh McClelland was plaintiff, and Alexander McCalmont was defendant. The only.question which was presented was, whether unseated town-lots were the subjects of a sale for taxes, in pursuance of the provisions of the act of 3d April, 1804. The court below (Shippen, president,) decided that they were.

William Leckey brought this action before a justice of the peace, against William Fitsimmons, and obtained a judgment there for eighty dollars, from which the defendant appealed.

This was ,an action of assumpsit, in which John Taylor and Su* sanna his wife Were plaintiffs, and the Commissioners of Beaver bounty Were defendants. It was brought to recover1 back money Which the plaintiffs had paid in discharge of taxes assessed upon R tract of land No. 86, to Which they had no claim, interest or conbern in any wity.

<p>Four children, to whom a tract of land was devised, made an amicable partition and valuation thereof, each who received land of more value agreed to pay to the others,-so as to make the shares equal. X'ossessiou was taken of'the several part3 in pursuance of the partition. More than twenty-one years thereafter, one of the devisees, to whom land of less value was allotted, brought a joint-action of eject.ment against the owners of the other shares, in order to compel the payment of the amount clue to him,- in which it was held that he was not entitled to recover.</p>

<p>It is not essential to the right of appeal from the judgment of a justice of the peace, that the claim of the party should be set out on the docket) it sufficiently appears if it be made out in writing and presented to the justice Upon the trial before him.</p>

<p>Writ of error to Venango County.</p> <p>This was an action of debt brought by Jibraham Selders and others, Commissioners of Venango county, for the use of Warren county, against Alexander McCalmont, Thomas Ruling, and William Moore. The action was founded on a bond given by the defendants in error to Jlb'aham Selders and others, commissioners of Venango county, on the 17th day of February, 1819, in the sum of five thousand dollars, conditioned for the payment of two thousand six hundred and forty-two dollars and eighty-seven cents to the said commissioners, or their successors in office; one-half thereof in six months, and the remaining half in twelve, from that date. A warrant of attorney to confess judgment was added to the bond, and in pursuance of it a judgment was entered up in the Common Pleas of Venango county, of February term, 1820, which was opened by agreement of the parties at April term, 1830; the plea of payment with leave, &c. put in by the defendants, upon which issue was taken by the plaintiffs.</p> <p>The cause was tried at June term, 1830; the bond was first given in evidence, and upon it were the following endorsements signed by the plaintiffs, the commissioners of Venango county, and sealed with their official seal at the time of giving the bond.</p> <p>“We, the undersigned, commissioners of Venango county, do* hereby acknowledge that the within bond is given by Jl. McCalmont, Thomas Ruling, and William Moore, for the payment of the taxes and costs due on two hundred and seventy-five tract» of land, situate in the counties of Venango and Warren, sold to Jl. McCalmont and Thomas Ruling, by order of the said commissioners, by John McCalmont, Jr. Esquire, treasurer of said counties, on the twenty-third day of December, 1818, in pursuance of an agreement betiveen the parties to these presents. And we, the said commissioners, do agree, for ourselves and our successors in office, to and with the said Jl. MeCalmont, Thomas Huling and William Moore, that the within bond shall be a lien only on the said two hundred and seventy-five tracts of land purchased by the said Jl. MeCalmont, Thomas Hiding and William Moore. And we do further agree, that any of the said tracts that may or shall be redeemed, agreeably to law, shall be released from said líen, and that the said lien shall only extend to those of the said lands, that shall not be redeemed as aforesaid. ”</p> <p> xt To the Treasurer of Venango County: </p> <p>Sir: — You are hereby required and directed to receive the foregoing bond, and to credit John MeCalmont, Jr., late treasurer, with part thereof; to wit: two thousand three hundred and sixt.y-seren dollars and eighty-seven cents, on account of any balance that may be due from him as late treasurer, and to receipt to him for that sum. You are also directed to pay to JLlexander MeCalmont, Esquire, prothonotary of Venango county, two hundred and seventy-five dollars out of the amount of said bond,' when received ' by you, being his fees for entering the acknowledgments of the deeds of lands sold to Huling and MeCalmont, for which tlio foregoing bond is taken; and which is included therein. Given under our hands and seal of office, 17th February, 1819.”</p> <p>These endorsements upon the bond were also, read in evidenee to the court and jury.</p> <p>The defendants then, on their part, gave in evidence the book of the treasurer, containing an account of the sales of the two hundred and seventy-five tracts of land, showing the sale of them to Mc-Calmont and Huling, two of the defendants; and that a number of them were subsequently redeemed by the owners thereof, and the redemption money upon them paid to the treasurer of the county.</p> <p>It was then admitted that the redemption money so paid in, remained in the treasury of the county for the use of the county, to be credited on the bond in suit; except so much as was paid out by the treasurer to the prothonotary for his fees, as mentioned in one of the endorsements on the bond, and the twenty-five per cent, paid to the purchasers. The reports of the auditors for the years 1819 and 1820 were given in evidence, where the county is charged with the amount of the money for which the bond was taken, and credited by the bond of the defendants, according to the order of the commissioners endorsed thereon. In the report of the auditors for 1820, the county treasurer is charged with six hundred ' and thirty-one dollars and eighty-one cents, received on account of the lands redeemed; and credited with the two hundred and seventy-three dollars, fees paid the prothonotary.</p> <p>The defendants then offered to prove by Robert Mitchell, one of the obligees and county commissioners named in the bond, that the purchase of the two hundred apd seventy-five tracts of land was mapl.e by the defendants,for the use of the county; that the bond was given for the amount of the taxes assessed, and the costs accrued on these lands. That by the agreement between the commissioners and the defendants, the land so purchased were alone to be bound for the payment of the bond. That upon the redemption of any of the lands, the money was to be left in the treasury and credited on the bond; and any tracts not redeemed were to be sold, without the expense of an inquisition. That the defendants were in no event to be personally responsible for any 'part of the amount of the bond. That the lands were purchased by the defendants for the use of the county, at the request of the commissioners of the county; because they believed that they would be sponer redeemed, than if purchased in by the commissioners thpmgelves, agreeably to law. To the admission of this testimouy the plaintiff’s counsel objected, apd the court below over-ruled the objection, and sealed a bill of exception taken by the plaintiff’s counsel thereto, which is assigned for the first error.</p> <p>The defendants, after Robert Mitchell was sworn and gave his testimony, offered the testimony of Jlbraham Selders, another of the obligees, apd pne ,of the epunty pomniissioners named in the bond, to the same effect for which tbc testimony of Mitchell was given, and alsp to show, tji.ai: immediately before and at th.e time of making tjb.e assignment of the bond tQlhe"commissioners of JVavr reji epupty, for wfiose use tips suit was proseepte.d, the commissioners of Venango .county related ap,d explained fully and fruly to the commissioners of Warren county, tjje agreement un.cl.er which the lands were purchased by tfie defendants, apd thp terms and conditions upon which, under that agreement, the bond was given, to the same extent that the defendants offered to make proof of to the pouj’t and jury; grid that the .commissioners agreed to, and did accept the assignment of the bond, subject to the agreement under' which it was gjiven, apd with full knowledge of it; to which the plaintiff’s counsel in likp man per objected, and the court over-ruling fhte pbjection, sealed a second bilj of .exception taken by them, whiph is assigned for the second erpor.</p> <p>The testimony of John McCalnj,ont, which was offered by the defendants, in thp next place, to prove further the nature and terms of the contract, under which the defendants purchased the land, and afterwards gave their hopd, was also objected to, but admitted by the court, and a third bill of exception taken, which is the ground of the third and last error.</p> <p>Contended, that the evidence was inadmissible, and went directly to contradict the writing in a material and vital part.</p> <p>1st. It was inadmissible, even if the transaction were with individuals treating for themselves, in their own rights. %Yeates, 370. 6 Bin. 489. 10 Serg. Sy Rawle, 339. 16 Serg. Sy Rawle, Q8. 1 Raivle, 108. Parol testimony can only be received against a writing in cases of latant ambiguity — to shew a fraud or plain mistake in omitting a clause intended to have been inserted. In Norris Peake, 178, the doctrine is fully explained and the distinction taken, between a latant and a patent ambiguity; and so in page 194. In 1 Phil. Bv. 481, the doctrine is fully laid down, that at law, there could be no question: and the rule is the same in Equity, page 501. 1 Johns. Chan. 425. A mortgage given on a number of lots, it was decided could not be varied or affected by proof of a parol agreement that the lien was to be in a rateable proportion to the value of each. 5 Serg. Sy Rawle, 363, Sy 10 Serg. Sy Rawle, 290, were cases of fraud, and the last was in favor of a surety. 16 Serg. fy Rawle, 345, was a case of latent ambiguity and failure of consideration. In 1 Bay. 461, it was decided that parol testimony was inadmissible to shew that to be in trust, which in the deed was absolute,</p> <p>In the second place, the transaction here was with agents and mere trustees, and the defendants were bound to know the extent of their authority: and would be the more likely to reduce their agreement to writing and therefore the objection to the admission of the evidence was strengthened. Paley on Agency, 4, 5. 11 Serg. Sy Rawle, 377,</p> <p>But in the third place, the defendants were treating with public officers; the transaction was clothed with an official sanction, and •therefore the objection to impugning it by parol still stronger, 3 Serg. <$’ Rawle, 604. 1 Bin. 470. 9 Serg. ¿r Rawle, 260. ■3 Yeates, 17. 13 Serg. Sy Rawle, 60. 9 Serg. Sy Rawle, 156. 4 Serg. fy Rawle, 134.</p> <p>In the fourth place, the transaction, as attempted to be proved by the defendants, would be fraudulent, and they being parties to it; cannot impeach it. It would be a fraud upon the owners of the unseated lands sold, compelling them to pay one dollar for the acknowledgment of each deed and twenty-five per cent, on that and other costs and taxes, and limit materially the right of redemption. It would be a fraud also'upon the county, taking from it the six per cent, per annum on the taxes and costs and accruing taxes, and the ultimate interest in the land in case of no redemption by the owners. 5. Bin. 109. 12 Serg. Sy Rawle, 448, 13 Serg. <5? Rawle, 224. Purd. Dig. 865. Section 4, 5 Sy 6 of Act of 1815.</p> <p>Lastly, I contend that the defendants in this case were estopped from shewing the trust alleged. They had received the benefit as individual purchasers. They had accepted and received the two hum dred .and seventy-five dollars for the acknowledgment of the deeds» and the twenty-five per cent, on the redemption, so far as the land had been redeemed, in the character of purchasers as individuals, which they could hot have received in any other character; and the law will not permit them, when the balance of the money due on their land is claimed from them in that character, to turn round and say that they were not purchasers as individuals, but merely as trustees for the county, 11 Serg. %• Rawle, 422. 17 Serg. fy Rawle, 364. 1 Rawle, 163.</p> <p>whom the court declined to hear.</p>

<p>An eiecutdr ch smi tort is liable to the action of the lawful exe'cutóí or adniinistra. tor, or to that ofa creditor.</p> <p>if there be a lawful executor, he and an executor de son tort m-iy bo joined in an action; by a creditor, or sued severally.</p> <p>An executor de sdntorl may be sited and treated by the oreditor a’S-if he’were the rightful executor, and he should be thus styled in the wi'it and thus- declared against.</p> <p>An executor de son tort may protect himself as the rightful executor, by a proper plea; when he Will be answerable only to those who are entitled to the assetts; and to the extent only as they have come to his hands.</p> <p>An assignment of personal property, which is tainted With either moral or legar fraud, does not pass the property, but it remains in the debtor. Thus, if A-receives goods from B For tile purpose of defrauding creditors, and li afterwards dies, A may be charged in an action as executor de son tort of B, by arty one of his creditors, to the amount of the value of the goods, or his pro rata share of them.</p>

<p>An original deed which was proved in pursuance of the recording act, may b<? read in evidence, although such probate be made after spit brought.</p> <p>A possession of land for twenty-one years may be adverse and hostile, and such as, under which aman may protect himself by the statute of limitations, although he did not know that any other person claimed the land.</p> <p>Whether a defendant in ejectment obtained the possession of land by the consent of and under the plaintiff, is a fact for the determination of the jury,-if the possession was thus obtained, the statute of limitations will not protect the defendant.</p>

Indiaita county. This case, wherein Robert A. Dunlap was plaintiff, and ÉobeH Kelly defendant below, was Submitted by J. B. Alexander fori plaintiff, and White for defendant in error,' Without argument.The facts are süfficiéntly stated in the opinion of the c'ourt, which Was delivered by

<p>An assessment of damages upon a petition for the appointment of “proper persons to view and adjudge the value of so much improved land as was taken up for the use of a turnpike road,” cannot be sustained. The application should be for the appointment of proper persons to view and adjudge the amount of the damages done by making a turnpike road over the land of the petitioner.</p>

<p>An indictment, founded on a statute, must set forth the charge in those words of the statute which describe the offence. Hence an indictment under the statute which makes it indictable by force and violence to take and carry away a negro or mulatto, Etc., was held to be defective, because the words by “force and violence” were omitted.</p>

<p>E^kor to the Common Pleas of Indiana county.</p> <p>In this action of assumpsit, The Indiana and Ebensburg Turnpike Road Company was plaintiff, and James Sinkler defendant below. It was brought to enforce the payment of two shares of the capital stock of the said company, which had been subscribed by the defendant.</p> <p>The plaintiffs below, on the trial, first read in evidence the act of assembly passed February 7th, 1818, entitled, “An act, authorizing the governor to incorporate the president and managers of the Armstrong, Indiana and Cambria Turnpike Road Company. ” See Pam. Lazos, page 74, and a supplement thereto, passed March 27th, 1819. Pam. Laws, page 175.</p> <p>They, also, after having proved the hand-writing of the defendant below, to a subscription paper, which appeared to have been signed by him for two shares,' gave it in evidence. It is in the following words, viz: “We, whose names are hereunto subscribed, do promise to pay to the President and Managers of the Indiana and Ebensburg Turnpike Road Company, the sum of twenty-five' dollars for each share of stock in the said company, set opposite our names, in such manner, in such proportions, and at such times, as shall be determined by the President and Managers of said company, in pursuance of an act of the general assembly of -the Commonwealth of Pennsylvania, entitled, “A supplement to an act entitled, an act authorizing the governor to incorporate the President and Managers of the Armstrong, Indiana and Cambria Turnpike Road Company. Witness our hands, the Bn d day of June, 1810.” To this the plaintiff in error subscribed his name; opposite to which he set two 'shares.</p> <p>The plaintiffs below, then, after .having proved a certain book to be their book of minutes, from which they read an entry of the 22d of October, 1821, showing the appointment of Thomas White, secretary to the Board of Managers, one of the 4lh of December, 1821, requiring the stockholders'to pay three dollars on each share of- stock, on or before the first day of March then'next; and that notice be published in the American and Indiana and Jefferson Whig, and two hand-bills to be posted up in Ebensburg; one of the 26th of August, 1823, directing the treasurer of the company to call upon the stockholders for a second instalment of three dollars on each share of stock, one of the 8th of January, 1824, requiring the stockholders to pay the sum of three dollars on each share, on or before the 16th of February, then next following, and that notice thereof be published in the American and Indiana and Jefferson Whig; one of the 20th of March, 1824, requiring the stockholders' to pay a further sum of three dollars on each share of stock, on or before the 1st day of May, then next following, and that notice thereof be published in the American and Indiana and Jefferson Whig; one of the 3d of May, 1824, requiring the stockholders to pay. the further sum of three dollars on each share, on or before the first day of July, then next following, and that notice be given thereof in the American and Indiana and Jefferson Whig; one of the 24th of August, 1824, requiring the stockholders to pay a further sum of three dollars on each share of stock, on or before the 1st day of October, 1824, and notice thereof to be given in the American and Indiana and Jefferson Whig; and one of the 12th of September, 1825, requiring the stockholders to pay, on or before the 20th of October, then next following, the whole amount of stock, and notice thereof to be published in the newspapers of the borough of Indiana.</p> <p>After this the plaintiffs below read in evidence, from a newspaper published in the town of Indiana, called the “Indiana and Jefferson Whig,” notices given and published therein, by the secretary of the managers, according to some of the orders and resolutions of the board, entered in their book of minutes, and mentioned above, demanding payment by the stockholders, according to the requisitions of the board.</p> <p>The first notice read was dated the 15 th of October, 1823; second, dated April 30th, 1824; third of the date of September 10th, 1824; and the last of the 7th of October, 1S25, which was a notice to the stockholders respectively to come forward and pay the whole amount of the stock by them subscribed, and remaining unpaid.</p> <p>The plaintiffs below next gave in evidence their charter, dated the 18th of December, 1820, and then rested their cause.</p> <p>The counsel for the defendant below, thereupon prayed the court to charge the jury: First, That a sufficient cause of action was not shown by the plaintiffs. Second, That sufficient proof of notice of demand of payment of the instalments, was not given: And third, That the statute of limitations was a bar to the whole of the plaintiff’s claim, and against the several instalments claimed in this action.</p> <p>The court charged the jury in favor of the plaintiffs below, on each of said points; to which the counsel for the defendant excepted. The charge of the court, on these points, is now assigned for error.</p> <p>The two first objections made by the plaintiff in error may be considered together.</p> <p>They are, that, no sufficient cause of action had been, shewn, and that proof of notice of the demand of payment had not been made.</p> <p>By the act of assembly and the terms of the subscription, the managers were to arrange the payments of the stock into instalments. The money was only payable as it might be wanted during the construction of the road.</p> <p>The stockholders entrusted this to the managers, and they direct a special and particular manner of payment, and of giving notice that such payments were required.</p> <p>Unless the officers of'the company, entrusted with the power of giving such notice, give it in the manner the stockholders by their managers, have ordered it should be given, no action will lie.</p> <p>By an examination of the orders of the board, and a comparison of them with the publications proved, it is clear that the notices' of demand of payment, were not given as they ought to have been. M’Conahy V. The Turnpike Co. 1 Penn’a. Rep. 426.</p> <p>In addition to the want of notice of demand by publication, there is an insuperable objection in the fact, that no personal notice was given, or offer of a certificate of the stock made to the defendant in error, which, by the act, was necessary. Svg. on Ven. 481.-1 Sautu 4S1. 8 Serg. 8? Rawle.</p> <p>Is the whole or any part of the defendant’s claim barre'd by the' statutes of limitations? The subscription was made on the 2d June,' 1819. The first demand of payment was made on the 4th December, 1821, and required a payment to be made on the 1st March^ 1822. Will the statute commence running from the time of the promise, or from the time of demand. It would seem to be Unreasonable that a party to whom a promise is made to be performed on request, should be permitted to lie by for any time he chose,- and then, by demand, preclude the promisor from the benefit of the lapse of time. Suppose a promissory note payable’ on demand —it Would be payable the instant it was made. The party holding it, could not at any future period renew his cause of action by merely demanding payment. It would at least require some new acknowledgment of the debt to make the party liable. But in this case no such thing has been shewn — no voting at elections, or any other interference in the concerns of the company.</p> <p>If goods be taken on an execution, which is afterwards set aside for irregularity, the' limitation begins to run .from the time of the taking, and not from the time of the setting aside the execution. 3 Johns. Rep. 528. So when assumpsit brought for attorney’s fees, though düe by the record, the limitation may be pleaded notwithstanding the nature of the evidence by which the claim is to be proved. 1 Lord 'Raym. 2. 3 Lev. 367. 4 Bac. Jib. 403.</p> <p>So also When an administration account of two administrators was settled, on record, and one was indebted to the other, the limitation may be pleaded in an action of assumpsit. Gemberling v. Meyert 2 Yeates, 341. So also when a simple contract debt Was secured by a pawn, although the pawn may be redeemed after six years; yet -an action for the debt would be barred by the limitation. Slay maker v. Wilson, 1 Fetin’a. Rep. 2 IS. Thus it appears that the recurring to the original promise will not save the plaintiff. It is however believed to be clear, that such of the instalments as were claimed more than six years before the action brought, are not recoverable in this action.</p> <p>On the part of the defendant In error, it is considered that all the objections of the plaintiff in error to the recovery of the amount of stock subscribed by him are fully removed by the act of assembly of tlie 10th April, 1826. Pamphlet Laws,p. 325.</p> <p>By the provisions of the act of assembly, under which the plaintiffs below weio incorporated, the managers were authorised to call for payment of the stock subscribed, in such proportions, and at such times as they might deem expedient, giving notice of the time of payment, thirty days previous to thclimc the stockholdefs' were required to make the payment.</p> <p>From an examination of the several resolutions of the Board, re-, ferred to in the bill of exceptions, it will appear, that the Board off managers adhered to the provisions of the act of assembly; but unfortunately they wore not sufficiently careful in 'preserving the newspapers, in which notices of the calls for payment had been inserted. In this particular the company was not singular, and so difficult had the recovery of the stock subscribed to the differeht turnpike companies become, from the many technical objections, taken by the subscribers, that the legislature, by the act iff lOtli April, 1S26, provided “that on the trial of any cause now pending or that may hereafter be brought, the plaintiff shall not be non-suited or affected in any respect on the trial of the same, by reason of any informality in the subscription of the slock, in the advertising for the organization of the company, or for the calling in of stock, if the court are satisfied reasonable notice of the same was given.”</p> <p>Ill the case before the court below, they were satisfied, that .reasonable notice of the calling in of the stock had been given; and the last noted publication by the company, was a call for the whole amount of subscription yet in arrears, and of this thirty days notice had been given.</p> <p>It is contended that this principle is in no níáñner impugned by the decision of the case of ISP Conuhy v. Centre Kishocoquillas Turnpike — contained in Penn’a. Rep. 426. The printed advertisement was offered for the purpose of shewing, that M’Conahy had accepted the charter, and acted under it; — and as the question was; whether ilP Conahy had signed the advertisement or authorized the. publication, the court decided that the admission of the noper mri'-.'üV'WA, c -n- <-¡ < ■vícv1;;’. n-"l, !.b i1cí::-.i 4oes v.nt mil-ac?.fr ' ' ■■ T .''w .1«¡-.Vi i.-.-i-r''l-r <i'6iV0nt p<,Hí\</p> <p>úi 1 fie. !¡. ur.-i ' i" i n"'.. w i1 • ...........! m '<(< fterg -S" ¡hítale, J ií'.ík; i-u, u r m. 6 ¡<y u:-r í"'n ac'/.n, a fio;:? • ;n» áoL •!>' r¡ ’ii :fi¡: v. í,\ i '* l<: : bí.'í) r? Ccrg, f Ríanle, ZOC, ¡ño a ni ni v¡-,ni, ICO;.', wtc "'Oeognír-.ed as binding in all suits brought thereafter.</p> <p>As to the want of the tender of a certificate of the stock before suit brought, it is not considered material; as the promises were independant. And among the various turnpike causes which have been before this court, this exception has' never been thought of. The defendant would only be entitled to a certificate after the whole amount had been paid. Negley v. Sleioart, 10 Serg. Sp JRawle, 359.</p> <p>2. As to thp question raised upon the statute of limitation, it is¡ contended by the defendcnts in this court, that this ease bears no resemblance to the case of a promissory note, payable upon demand; — it is rather considered to assimilate itself to the case of a promissory note, payable after a limited time; upon which it is clear, that the statute would not run, until after the time of payment had elapsed.' Nor is this position at all affected by the’cases referred to by the plaintiff in error on this point.</p> <p>• The action was commenced before the six years had elapsed from the call of any of the instalments (23 July 1827) and it is therefore believed that there was no error in the trial of this cause: in the court below, and that their decision should be affirmed.</p>

<p>Error to the Common Pleas of Fayette County.</p> <p>This was a scire facias to revive < a judgment in which Levi Springer was plaintiff below, and Daniel B. M’Party defendant. The fads which gave rise to the questions argued and decided aro fully stated in the opinion of the court.</p>

<p>Wb.it of error to the-Common Pleas of Westmoreland county.-</p> <p>This was an action of ejectment, for a tract of land, in which 4Andrew Mateer was plaintiff, anti Jlbner Hissim and Michael Kimmcl were defendants.. All parties claimed under llv. same original title, which wos veriecl in Michael ?’Scmmcl, Sen., ¡h<;- ia fher of one of the defendants, a short lime before In”r-; tlcaib. Previously to the 10th of January, IS.ifl, Michael KhsunA, Sen. \u.¡ indebted by bond,, which had been cA.igoed ío JiniSaw Ain leer, the plaintiff, in the sum of two hundred, dolíais, with some yew? interest upon it; on that day he sold and conveyed the land in dispute, one hundred and forty-eight acres, to his two sons, Joseph and Michael, in consideration of fifteen hundred dollars, for which he took their bonds payable at a future day. No pArt of the money was paid during the life-time of the father. A suit was brought by Andrew Mateer, against Michael Kimmel, Sen.j on the bond, to May term, ISIS; but the writ was not served on the defendant, and he died, in .Tune, 1818, intestate. Letters of administration were issued upon his estate to his son Joseph, who got into his hands personal estate .of the intestate, to the amount of about eighteen hundred dollars, exclusive of the bonds, which were given for the consideration of the land before mentioned; for it did not appear very clearly, whether the father had given these bonds, or1 part of them, to his sons in his life-time; or whether Joseph, his administrator, distributed them after his father’s death, in pursuance of an intention which the old man expressed to do so, of which there was some proof. Immediately after the death of Michael Kimmel, Sen., the suit of Andrew Mateer on the bond was renewed against the administrator, and a judgment was recovered on the 11th of January, 1819. Upon this judgment a Ji. fa. issued to August term, 1819, which was returned “nulla bona.” Previously to this, to February term, 1820, Mateer brought a suit on the administration bond of Joseph, the administrator, upon which no further proceeding was had until 1825, when he obtained a judgment by award of arbitrators, for the amount of his debt, interest^ and costs. No execution was issued on this judgment, because before it was obtained in 1824, others had obtained judgments against Joseph, upon which his land, the same which his father conveyed to him, was levied and sold by the sheriff to S. Trevor. At this' time Joseph and all his sureties in the administration bond were insolvent. In 1836 S. Trevor sold to Abner Ilissim, one of the defendants, by articles of agreement, and received four hundred and fifty dollars on account of the purchase-money. Mateer then went back to his original suit, and issued an als. ji. fa. to November term, 1825, which was levied on the land in dispute, and the same was condemned. To May term, 1827, a vend, expos, issued, upon which the land was sold and purchased by Andrew Mateer, the plaintiff. Joseph and Michael Kimmel, soon after they received the conveyance from their father, had divided the land between them; and ir. this suit, Ilissim and Michael Kimmel severed in their defence. There v/as some evidence th»t Ilissim knew of AT\'v-’"\? cl-ir.' 7,die: A r v"’".e ÍA .. .</p> <p>The l y’Tvvy r-A vleed A Tv :y the fact, vAA.V-a • re Ary A .A ,a - "-a; .■ Aker to :>.e - a re; e.i e iAoyAyA? T .'A', ■■ ' ■ '.y ■ -.".a A\ Av ■ aaek;„ knejury LO'.ui' * !”iv > j\c-</p> <p>Cited 2 Jitk. 174. 1 Yeates, 574. Sugdon, 494. 2 Chan. Ca. 116. 12 Serg. fy Raioie, 454. 1 Raioie, 328. 1 Pondb. 262. CWfjoer, 434-5 and 711. 1 Peters' C. C. 460. 1 Raioie, 352. 8 Serg. fy Raioie, 451. 2 Penn. Rep. 91.</p> <p>That the statute of 13 Elizabeth was not applicable to the fact» of-this case, cited Rob. Did. 302. 1 Rawle, 244. 1 Peters Rep. 464. Thai admitting that the defendant Hissim had notice of a claim of the plaintiffs, yet he is but a purchaser with notice, from a purchaser without notice, and therefore he cannot be effected by the fraud, even if it existed, and was proved. 8 Crunch. 462. Cox’s Dig. 340. No. 47. 2 Mason, 252. 4 Wheat. 487.• 6 Crunch. 133. Sugden, 531. Whart. Dig. 210, No. 91.</p>

<p>Error to the Common Pleas of Westmoreland county. .</p> <p>This was a case stated for the opinion of the court, the facts of Which are fully set forth in the opinion of his Honor who delivered that of the court.</p>

<p>alias or pluries capias or summons is a contihunrtce of the originad process;' ii/ therefore, special bail be entered in time in the origina} suit, inr which the writ was returned non esi inventus, it will be a compliance with the c'oiyditions of the bail bond given upon an alius or pluri.es capias»</p> <p>An appearance after the return day of the writ,, but within six wcefes, ís a compliancc with the le^al effect of the condifiórr of a bail bond* and it indy Se ¿dead-cd in bar to an action upon it.</p>

Writ of error to the Common Pleas of Allegheny county. This was an aetio'n of assumpsit by Thomas Patridge against Reverend John Riddle and John Phillips, executors of William Turner, deceased. By the last will of Wm. Turner, deceased, he devised to the minor children of his deceased son John a tract of land, and directed that a patent should be obtained for it; which should be paid for out of his personal estate. The plaintiff, Thos.

<p>A defendant obtained a rule of the court of Common Pleas, to shew cause why an appeal by the plaintiff from a judgment of a justice should not be quashed, during the pendency of this rule, the plaintiff entered a mle of reference, had arbitrators chosen,- who pnule a report ill favor of the plaintiff The judgment upon the award was held t<5 be erroneous, a”d it was reversed.</p> <p>No appeal lies from the judgment of a justice, entered upon an award of arbitratrators, fora sum less than twenty dollars; where the plaintiff’s claim, set out upon the record of the justice, does not exceed that sum.</p>

This was an action of trespass by David Carlisle against Thos'i Hurst and others, to recover damages for an assault and for a battery committed upon bim. The court (Shippen, president,) was of opinion that the plaintiff was entitled to recover, and the -jury found accordingly.

<p>Error to Allegheny county.</p> <p>This was an action of assumpsit brought by Samuel Milligan ¡against James Gallagher, for work and labor performed in 1808. Issues were joined upon the pleas of non assumpsit, and non as‘sumpsit infra sex annos. James Milligan was called as a Witness, and by his examination it appeared, that he was equally interested with his brother, the plaintiff, in the claim for which the suit was brought; and his testimony having been objected to, he executed a release of all his claim to the plaintiff; he was still objected to as a witness, because of his liability for costs; but the court overruled the objection, and sealed a bill of exceptions. To avoid thé operation of the statute of limitations, the plaintiff gave in evidence the declarations of the defendant, that if it could be made appear to him that he owed any thing, he would settle and pay it; but he always accompanied these declarations with the assertion that he owed nothing. Having been asked, if he was willing to swear that he did not make the bargain, he answered, that he would not swear so for all he was worth.</p> <p>The court was of opinion, and so instructed the jury, that th'e statute of limitations, under the evidence given, would not bar the plaintiff’s right to recover. To this opinion the defendant’s counsel excepted, and the court sealed a second bill of exceptions*</p>

Writ of Error to the Common Pleas of Fayette county. This was an action brought by Oliphant and Duncan against Joseph Smith, for erecting a dam in the Youghiogheny river, by which the plaintiff’s boat was hindered from passing up the said river and was .sunk, whereby he sustained damage.' During the progress of the trial, the evidence given established the fact that the dam alleged to have been built and kept up by the defendant, was in the county of Westmoreland.

<p>The act of the 28th of March, 1814, against “any oncers taking greater Or óthff fees, &c., than are expressed and limited in the bill, being penal in its consequence musí be strictly construed, and therefore the ease of taking fees by a person out bf office-, for services rendered vVhile in office, is not within the act, and such person is not liable for taking such fees illegally.</p>

IN ERROR. Error to the Court of Common Pleas of Adams county.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Cumberland county.</p> <p>It was an action by James Neal the defendant in error against James Bredin the plaintiff in error, founded on the following agreement or stipulation:</p> <p>Copy of the agreement or stipulation on which the suit is founded;</p> <p>“Philip Weaver & j</p> <p>Margaret Moor | Legacy under the will of David Smith, vs. )• deceased payable out of the land sold</p> <p>The Executors of | by Sheriff Neal to. James Bredin.</p> <p>David Smith. J</p> <p>(21st February, 1825.)</p> <p>“Received of James Neal, sheriff, the sum of $453 08 on account of the above legacy, being the dividend coming to the plaintiff out of the sale of the real estate, the same to be refunded in case it is improperly received by me. James Bedin.</p> <p>$453 08</p> <p>In this action the following facts were agreed by the parties as a special verdict.</p> <p>The plaintiff as sheriff of Cumberland county, by virtue of sundry writs duly and regularly issued out of that court, sold to the defendant, a tract of land in North Middleton township, for the sum of $6600. The said tract of land was taken in execution and sóidas the estate of David Smith, deceased, and was sold to defendant 20th July, 1824. The said David Smithy as whose estate the said tract of land was levied and sold, by his last will and testament-duly executed and proved, August 1818, devised the said tract of land to his son Michael Smith, and charged it with the payment of sundry legacies to his (testator’s) other children.</p> <p>At the time of the sale by the plaintiff to the defendant as aforesaid, there were sundry judgments remaining due against the estate’ of David Smith deceased, amounting to $2590 97. The sheriff and Commissioners’ costs for making said sale, amounted to $28 34, which being deducted from the amount of the sale, left $4040 60 to1 be appropriated and distributed joro rata, to and amongst the legatees of the said David Smith deceased, which legacies remained unsatisfied, and amounted to $8896 41, and were payable in the proportions stated in the order and decree of the court hereafter' mentioned.</p> <p>Included in the judgments obtained against the estate of the’ said David Smith, deceased, was one in favor of James Giffin, for’ $8678 19, which Was obtained for a debt against Philip Weaver, husband oí Margaret Weaver, one of the legatees under the last will- and testament of the said David Smith deceased for the payment of which the said David was only security.</p> <p>After the death of the said David Smith,- to wit, on the 5th February, 1825, the said Philip Weaver for a valuable consideration, sold, assigned, and transferred the foregoing legacy, payable to his wife Margaret, under the will of the said David Smith, to the defendant James Predin,</p> <p>In consequence of a rule upon the sheriff to bring the money arising from the sale, into the Court of Common Pleas for distribution, the Court after argument, ordered and decreed the money arising from the sale to he paid and distributed in the manner and proportions, set out in their decree.</p> <p>The money for which this suit is brought, is part of the purchase money for said tract of land, and was and is retained by the defendant James Predin by virtue of the assignment from the said P. Weaver, in right of his wife, to him, and is the same money mentioned in the note in writing set out in the plaintiff’s statement in this cause.</p> <p>The plaintiff claims the amount mentioned in the statement filed with interest as stated therein.</p> <p>On the 6th November 1821, there was an assignment by Philip Weaver and wife to James Predin of the first instalment due- on the legacy.</p> <p>All questions as to the admissibility as well as to the legal effect of the matter contained in the statement to be determined by the court.</p> <p>. Judgment to be entered as the opinion of the court may be on the facts herein before and above mentioned, with leave to either par-' ty to take out a writ of error.</p> <p>The decree of the Court of Common Pleas referred to in thiif special verdict was at follows:</p> <p>, 9th Septembers 1824, money considered in Court so far as to eriáble the court to order the distribution.</p> <p>It was moved on part of some of the legatees of David Smithy to have the judgment of James Giffin against Philip Weaver •and David Smith satisfied out of the amount which would be due to him or to his wife, who was one of the daughters of David Smith, who was only surety for Philip Weaver. The facts agree¿bly to statement filed, were given in evidence.</p> <p>Whereupon the court was satisfied that said David Smith was only surety in the bond on which the said judgment was entered.</p> <p>The money for distribution being raised out of the estate of David Smith and Philip Weaver, (or his assignee who stands in the same situation as the assignor) claiming a portion of the said sum, it is right that the judgment should be paid out of that portion of the money that belongs to the principal,- ánd not out of the general fund raised out of the estate of the surety. The annexed statement being made according to the principle stated, the Court orders and decrees “that the said sum of money be appropriated and paid by the sheriff accordingly. To this opinion the counsel for James Bredin, assignor or purchaser, and on behalf of Mrs. Weaver objects and prays the court to file the same, which is done accordingly.</p> <p>The dividend on account of Margaret Weaver’s legacy, out of the proceeds of the sale of her father’s real estate after the payment of all debts amounted to the sum of four hundred and fifty-six dollars and twenty-four cents.</p> <p>The judgment of James Giffin against Philip Weaver and David Smith, which was thus decreed to be paid was entered on the' day of 18 and was out of the judgments included" in the sum of $2590 97, which were a change upon the estate of the said David Smith:</p> <p>The Court gave judgment on the verdict for the plaintiff.</p> <p>Error was now assigned that the Court had given judgment for the whole amount of the plaintiff’s claim. The defendant ought to have been allowed for the first instalment of the legacy assigned to him by Philip Weaver on the 6th of November A. D. 1821.</p> <p>referred to 5 John. ch. E. 52. Simson v- Hart, 14 John. Eep. 63. Commonwealth v. Jones, 3 Serg. fy Rawle, 167. Galbreath v. Black, 4 Serg. £? Rawle, 207. Gourdon v. Insurance Co. 3 Yeates, 327. Rousset v. Insurance Co. 1 Bin. 430. Mann v. JDungan, 11 Serg. 4’ Rawle, 75. 6 Serg. and Rawle, 466. Baughman for usé v- Divler, 3 Yeates, 9. Fo/te v. Barnet, 1 Binn. 358. 15 Serg. 4' Rawle, 63.</p>

<p>One of the heirs of a decedent, who died intestate, petitioned the Orphans’ Court for aninquest on his real estate, describing it as ‘«containing two hundred and twenty seven acres more or less with a grist mill, and several other buildings thereon erected,” upon the writ issued thereon the inquest found that it could not be divided, sj)d valued the same at thirty four dollars and seventy-five cents per acre, “amounting in the whole to seven thousand eight hundred and eighty eight dollars twenty-five cepts,” which was confirmed by the court, and another heir took the same and entered into a recognizance to the heirs. Suit was brought upon this recognizance by one of them, in which it was admitted that there was a de- . -ficiency of twenty acres and sixty-three perches, ani^ that it had been agreed by some of the parties, riot including the plaintiff, at the time of the inquisition, that the land should be surveyed before the return and acceptance by the heir; but that this was not done. Held, that the defendant was not entitled to any de- ■ duction frotp the recognizarice on account of this deficiency. By the decree of the Orphans’ Court, confirming the land to the heir, he became invested with the title to it, ánd the whole proceeding, which before was progressive and executory, was thereby closed and consummated.</p>

<p>Whenever by a rule of court, or an act of the legislature, a given number of days are allowed to do an act, or it is said an act muy be done within a given number of days, the day in which the rule is taken, or the decision made is excluded, fcrtd if one or more Sundays occur within the time, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. So where a decree, under the act of the 16th of April, 1827, relative to the distribu» tion of money arising from sheriff and coroner’s sales, was made on the 12th of April, and an appeal was entered on the 3d of May, the 2d being Sunday, the appeal is in time.</p> <p>A, on the 30th of November, 1820, obtained judgment against P. drawer, and G. indorser, on which fi. fa. issued to August term, 1821, on the 29th of July, 1822, P. obtained a rule to show cause why judgment should not be opened as to him, and proceedings stayed in the mean time; on the 17th of February, 1827, this rule was discharged; to April terih, 1827, fi. fa. issued, and was levied.on a house and lot of P.; on the 17th November, 1828, P. gave evidence to the Court of Common Pleas, that he had satisfied the judgment to1 A, under an arrangement, by which the judgment against G. should stand revived for his use, and that the judgment was for the proper debt of G., and P. was surety only, and the court vacated the levy on P’s Jot, and directed the original judgment to stand revived for the use of P. Before this, several judgments .had been obtained for others against G.</p> <p>On the 9th of January, 1830, the real estate of G. was sold and the proceeds brought into court for appropriation.</p> <p>Held: That P. was not entitled to be substituted as surety', to the injury of other judgment creditors, after he had for eight years appeared on the records of the county as the real debtor, and that the order of the court marking the judgment of A; for his use, was not binding on other creditors who were not parties to it.</p>

IN ERROR., Error to the Court of Common Pleas of Adams county. This was a feigned issue, which it seemed, had been directed by the Orphans’ Court of that county. The order of that count directing tlie issue, was nqt brought up with the record.

IN ERROR. Error to the Court of Common-Pleas of Cumberland county, Sampson Johnston the plaintiff, below brought indebetatis assumpsit for work, labor and services against Urie, and recovered a verdict for three hundred and seventy dollars.

IN ERROR. Error to the Common Pleas of Franklin county. This was an action on the case against the plaintiff in error for negligencias an attorney brought by the defendants in error. The liability of the defendant below depended upon the construction of a receipt which he had given to the defendant’s testator, and the circumstances which occurred.

This was an action of ejectment, in which John R. Dobson was plaintiff, and Thomas Griffeth was defendant, for a tract of land, thus described in the writ: “That the said Thomas Griffeth now is in the actual possession of a tract of land, situate, lying and being in Dickinson township, Cumberland county, bounded by lands of Peter Bge and the Jldams county line, the right of possession,” &c. To January term, 1825, an ejectment was brought for the same land, by the same…

In this case Alexander Davidson was plaintiff below, and Thomas Lusk with notice to A. Carothers, Esquire, was defendant. The following'were the facts of the case: on the 5th April, 1823, and to January term, Davidson obtained a judgment against Lusk, which was a lien upon a tract of land.

<p>Writ of error to the Common Pleas of Cumberland county.</p> <p>This was an action on the case for money had and received, which originated before a Justice of the Peace, from whose judgment the plaintiff appealed.</p> <p>The plaintiff, to support this action, gave in evidence the docket of'Justice Doyle, containing the record of the issuing of a domestic attachment at the suit of Alexander Barr against John Hamilton. The writ, directed to the constable of Carlisle, was issued on the 9th March, 1819, returnable on the 15th March, at 11 o’clock, A. M. This writ Was executed by Richard Miles, who on the 10th March, attached the personal property of John Hamilton, as per endorsement on writ.</p> <p>At the time the writ issued, Richard Miles was a general deputy of the constable of Carlisle, appointed with the approbation of the Court of Quarter Sessions, and so entered on the record of that court.</p> <p>On the 16th March, 1819, Henry Miller sold the personal property of John Hamilton, which had been attached, at public vendue, for one hundred and four dollars and ninety-seven cents.</p> <p>The defendant then gave in evidence, the docket of ’Squire Heap, containing the record of a suit of Isaiah Graham.v. John Hamilton, and four other suits against the same defendant, in which the writs of summons issued on the 5th March, 1819, and Were returnable on the 9th March: on that day the justice entered a judgment in each of the cases for the plaintiff: the judgment of • Isaiah Graham, was for nineteen dollars and ninety-nine cents and costs. Executions were immediately issued upon all the judgments, directed to Hemp Miller. And upon the execution of Isaiah Graham, there was a levy endorsed 9th March, 1819, of the personal property of John• Hamilton. No endorsement upon any other of the executions, except the name of the plaintiff. The property so levied was the same which Henry Miller sold on the 16th March.</p> <p>Miller was there the same day, I served the attachment; at any. rate before the sale of the property, he Said he was indemnified. He said he had levied the property the day before. I was acting constable of the borough of Carlisle. The property was in West Fennsborough township, Cumberland county.</p> <p>The plaintiff requested the court to charge the jury on the following points:</p> <p>1. That upon the issuing of a domestic attachment it becomes a lien upon*all the personal property of the defendant in the county, and therefore the plaintiff is entitled to recover the whole amount of the sale, after deducting costs.</p> <p>2. That there being no levy upon any of the executions given in evidence, except that of Isaiah Graham, Esquire, at all events, the plaintiff is entitled to the balance of the proceeds of sale, after deducting that judgment and costs of sale.</p> <p>3. If the jury believe, that at the time the suits before the justice Were instituted, the plaintiffs therein knew that John Hamilton, had absconded, and at the time the judgments were rendered, that a domestic attachment had issued, and that they are now the real defendants in this suit, they cannot defend themselves by those judgments against the plaintiff’s claim.</p> <p>4. If the jury believe, that Henry Miller knew of the claim of the trustees Under the domestic attachment, before he applied the money to the judgments and executions, and declared, that he was indemnified fo'r thus paying over the money, it is a waiter of the necessity of a demand of a copy of the warrant, as required by the act of 1772, even if such demand is necessary, in a case of this kind.</p> <p>The court answered the first, second and third points in the negative; and said, that their answers to those points rendered the fourth unimportant. '</p> <p>Defendant’s points.</p> <p>1. If John Phillips continued to act as constable, the deputation of Richard Miles, was illegal and void; and he could not execute' the attachment in TVest Pennsborough township.</p> <p>2. The attachment Was not directed to the constable of Carlisle, nor to a person who was a constable: it is illegal, ánd can vest no title in the plaintiff</p> <p>3. The lien of constable Miller attached when he made his levy on the 9th of March, and neither the constable, nor any other person, could execute the attachment on the same property on the 10th, And any such executing, could not affect the first constable’s right.</p> <p>4* If all the executions were in the hands of constable Miller When he made the levy, he had a right to proceed upon them all, and to apply the proceeds to their satisfaction: — the fact of á levy being endorsed only on one, would not defeat the right: — the law considers that as being done, which ought to have been done: — this right was in full force, and unexpired when this suit was brought: —and it is a question for the jury to determine, from all the facts, whether the levy and sale was, or was not made in pursuance of them all.</p> <p>5. The suit of plaintiffs cannot be sustained, without having proved a demand on the constable, (the defendant,) for a copy of his warrant or warrants, before the suit was brought.</p> <p>6. The executions in the hands of the constable, when he made the levy and sale, are a complete bar to any recovery against him,</p> <p>7. The judgments before ’Squire Heap, áre conclusive, and riot open to investigation in this suit, — as to regularity or otherwise.</p> <p>8. Plaintiff’s have not proved any debt to be owing by Hamilton to Barr, and without such proof, the plaintiff can ndt recover.</p> <p>The court answered all these points in the affirmative, except the fifth and eighth, which were in the negative. An exception was taken to the opinion of the court, and was here assigned for error.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of ejectment, in which, in the court below, Jacob Bower was defendant, and Abraham Oyster and George Oyster were plaintiffs. John Worrrtley, in his life time, was the owner 'Of the house and lot in Wó’rmley sburg, for which the ejectment was brought, and both plaintiff’s and defendants claimed title Under him. In 1820, Wormley ■ being indebted to Bower, they made a parol agreement, by which, the possession of the house and lot in controversy, was delivered to Bower, to hold as a security for the payment of his debt, and until it was paid. The proof was, that the annual value of the house was about equal to the interest of the debt. After 1820, Wormley became insolvent and died intestate. In 1825, William Line, Esquire, became the administrator of Wormley, and applied to the Orphans5 Court for an order to sell his real estate, for the payment of debts, and among other parcels of real estate, which he was ordered by the court to sell, was the house and lot for which this ejectment Was brought. Pie sold it to the plaintiffs, Abraham and George Oyster, and the question was, whether they were entitled to recover from Bower, without paying his debt due to him by Wormley.</p> <p>The following points were put to the court below, upon which they were requested to charge the jury:</p> <p>1. A parol mortgage Or pledge of real estate, accompanied by the actual loan of money, and delivery of possession to the niorgagee, is not within the statute of frauds, &c. and is good and available against the mortgagor, and all clalining under him, subsequent to the date of sU&h parol Contract.</p> <p>2. That a sale made by the administrator of such mortgagor Under an order of Orphans’ Court, for the payment of debts, would not defeat the mortgagee’s right of possession, until his debt was actually paid.</p> <p>3. That such sale by an administrator, would not have the same efiect as a sale Upon a judgment, prior in date to such parol mortgage.</p> <p>4. And if the jury find that the defendant, as early as April, 1830, entered into- a parol agreement with John Wormley, in his life-time, by which he agreed and actually loaned to said Wor?n~ ley four hundred and fifty -six dollars, and said Wormley, ,to secure. the payment thereof, then agreed, and actually delivered to the defendant, the possession of the house and lot of ground in dispute, to be held by him until the said money was repaid: and that defendant took possession, and still holds the same under the parol contract, and the money is yet unpaid: and that at the time of Wormley’s death, no judgment existed against his estate, prior in point of date, ánd lien to the date of said contract; add that when the plaintiffs purchased, they had notice of the defendant’s title and claim, and that he claimed to- hold possession, until his debt was paid: then the plaintiffs cannot disturb defendant’s possession, without payment be made of his debt.</p> <p>The court (Reed, President) answered the first point in the affirmative, and the second, third and fourth in the negative; and^was of opinion that the plaintiffs were entitled to recover: The jury found accordingly.</p>

<p>Appeal from the decree of the Court of Common Pleas of Cumberland county, appropriating the proceeds of the sale by the sheriff, of the real estate of' Jesse Kilgore.</p> <p>Kilgore gave an amicable judgment to Thomas Metzler, one to Henry Leppert and one to Abraham Higernell; all of which were entered on record upon the same day, in the order in which they are here mentioned. As to Metzler's judgment, the entry on the docket, as to date, was “entered 14th November, 1828,” Leppert's was “entered 14th November, 1S28, at 5 o clock, P. M.” Higernell's was “entered 14th November, 1828, at 9 o^clock, P. M.” The court below was of opinion, that where it appeared by the record, that a judgment was entered at an hour of the day earlier than an other, it was entitled to priority in payment, and decreed accordingly.</p>

<p>The government of every incorporated town, has a right to improve the streets for public purposes, whether as higli-ways, or places for cisterns or wells. The practice for the inhabitants to sink wells in the street, is by sufferance, and in subjection to the corporate franchise. The title of the corporation to tile soil for uses, that conduce to the public enjoyment and convenience, is paramount and exclusive; and no private occupancy for whatever time, and whether adverse or by permission, can vest a title inconsistent with it.</p> <p>A bye-law or ordinance of a city corporation, which enacts a penalty fora misdemeanor, with imprisonment, in default of payment, on conviction by the Mayor or an Alderman, is void. The charter of the city of Lancaster, does not confer upon the councils, the right to vest in the Mayor and Alderman jurisdiction to convict summarily, or to entertain an action of debt for a penalty. If the charter did give the right to confer a power to imprison on summary conviction, and without appeal to a jury, it would be so far unconstitutional and void.</p> <p>Jurisdiction is expressly given to the Mayor’s Court, “for the recovery of fines, forfeitures, penalties, debts and other demands, cognizable in the City Court,” the exercise of which, stands clear of all objections on constitutional grounds.</p> <p>Note — -Romms, J. — ’Was sitting at a nisiprhis in Philadelphia and took no part in the decisions made at this court.</p>

<p>In cases of misdemeanor as well as felony, where the defendant's special plea in bar has been determined against him on matters of law, a judgment of respondeat ouster, is the proper judgment to be rendered.</p>

Appeal of STULZFOOS and others in the matter of the distribution of the money arising from the estate of J. HAMILTON, deceased. This was an appeal from the decree of the court of Common Pleas of Lancaster county distributing the money raised by the sale of the real estate of James Hamilton deceased, which sale was made by the sheriff on execution after the death of Hamilton. The appeal was taken by John Stulzfoos, Peter Eckert, and JLbraham Royer.

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Lancaster county.</p> <p>Error was brought by the plaintiff in error, who was defendant below, to reverse a judgment entered on a report of arbitrators against him.</p> <p>The submission was in the following words:</p> <p>“Amicable action on the case. We do agree to submit all matters in variance, in the above suit, to Casper Shaffner, jr. Jacob Sherer and John Whiteside, or any two of them, who are to audit the same, and make report to the next Court of Common Pleas for the county of Lancaster. Exparte rule on one days notice.”</p> <p>This agreement was indorsed “under the arbitration law of 1810.”</p> <p>The following entry was made on the docket:</p> <p>‘ ‘Amicable action on the case. And now, January 2d, 1821, by agreement of the parties, in writing filed, all matters in variance in this suit between the parties, are submitted to Casper Shaffner, jr. Jacob Sherer and John Whiteside, Esquire, or any two of them, who are to audit the same, and make report to the next Court of Common Pleas, for the county of Lancaster, and are to meet at the house of John Bachman in Lancaster, on Wednesday the 3d of January instant, at 3 o’clock, P. M.”</p> <p>The arbitrators made the following report, on which judgment Was entered:</p> <p>“We, the subscribers, having ' met and heard the parties, and the proofs by them adduced, do award, in favor of the plaintiffs, and find for them the sum of two hundred and seventeen dollars, as a compensation for having built upon the ground of William Hamilton, and that the alley between the late dwelling of William Hamilton in West King street, and the house of John Bachman, as also the pump and well of water in the back yard, on the line between said lots of Hamilton and Bachman, be enjoyed in common, between them and their heirs and assigns, and that the defendant pay one hundred and seventy-nine dollars and fifty-eight cents, the amount of former costs, ás per bill, together with the costs of the present suit. ”</p> <p>Several errors were assigned, the following only are material to be stated:</p> <p>“1. The referees have awarded beyond the submission of the parties, and have found damages for an alleged encroachment, committed on the lands of William Hamilton, over which they had no control, and have attempted to transfer to defendants certain rights, over the real property of the plaintiff not submitted to them, and have also found costs not incurred in this nor in any other suit between the same parties.</p> <p>“2. The whole proceedings having been under the act of 2lst March, A. D. 1806, the agreement to refer should have been proved, by the subscribing witness, before it Was filed by the prothonotary.</p> <p>“3. There was no notice served on the plaintiff in error, of the award, according to the provisions of the act of the 25th of March, A. D. 1806.”</p> <p>The form of action is case, and under that form of action no award could be made transfering a right to the realty. In an action on the case, nothing can be submitted, except what could be recovered in that action. If the award exceed the submission, it is plain that it is void. 1 Saund. n. 1.216. 1 Bac. Jib. 213, 214.222, 225. Kyd on award, 142. 143. 157. 195. Pratt v. Hacket, 6 John Rep. 14. He contended that the submission was Under the act of 1806, Purdon, 44.- and not under the act of 1810. Indorsing the submission “under the arbitration law of 1810,” could not change the character of the agreement, or give it a character which it did not possess. It Was obviously the intention to make the award, final, which, of course, it would not be, under the act of 1810. That the submission, being under the act of 1806, the proceedings were erroneous, inasmuch as there was no proof of the execution of the submission before it was filed, nor was a copy of the award served on the defendant as is required by that act.</p> <p>The remedy of the defendant below, if he were dissatisfied with the award, was by appeal. He contended that this award could be enforced by execution, and it was therefore good. That it was competent to the defendant to Submit causes of aetion, real and personal, in the same suit, and he was concluded by his submission. Massey v. Thomas, 6 Binn. 333. Davis v. Havard, 15' Serg. 4* Rawle, 165. Harris’ admrs. v. Harris’ admrs. 6 Binn. 422. Hewitt v. Ferman, 16 Serg. 4’ Rawle, 135. ></p>

<p>IN ERROR.</p> <p>Error to the District Court of Lancaster county.</p> <p>The action was assumpsit, by Abraham Gochenauer, - against John Good, who had been a joint endorser with him of a note of one Nicholas Marks discounted by the Farmer’s Bank of Lancaster, and which, in consequence of the insolvency of Marks, they had been compelled to pay, each paying the half. The action was brought by the plaintiff, to recover from the defendant the money which he had paid; and on account of an indemnity which Marks had given the defendant, and out of which he had received, as the plaintiff alleged, the full amount of the sum for which they were joint endorsers.</p> <p>The first count in the declaration explains the case, and is material to understand the exceptions taken on the trial, it was as follows.</p> <p>John Good, was summoned to answer Abraham Gochenauer of of a plea of trespass on the case, and thereupon the said Abraham Gochenauer, by M. M’Kelly, his attorney, complains against the said John Good, Esq. for that, whéreas a certain Nicholas Marks, at the county aforesaid, on the 22nd of February, 1816, by his certain writing obligatory, sealed with his seal, (and which said writing obligatory being in the possession of John Good, Esq. the said Abraham G ochen ayer cannot produce R» the court here,) acknowledged himself to be held and firmly bound unto the said John Good, his heirs, executors, administrators, or assigns, in the sum of $8000, to be paid to the said John Good, or to his certain attorney his executors, administrators or assigns; which said writing obligatory, was, and is subject to a certain condition thereunder written, that if the said Nicholas Marks would well and truly pay, or cause to be paid, to the said John Good, or to his certain attorney, his executors, administrators, or assigns, the sum of $4000, then the obligation to be void and of no effect, or else remain in full force and virtue. And the said Abraham further says, that the said Nicholas Marks, by his certain letter or power of attorney, authorized and empowered any attorney of any court of record of the commonwealth of Pennsylvania, to appear for him, the said Nicholas, and to confess judgment against him, the said Nicholas, for the amount of the pen-penalty of the aforesaid bond: In pursuance of which letter or power of attorney, judgment was entered in the court of Common Pleas for said county of Lancaster, to January term, 1816. No. S99. Reference thereto being had will more fully appear. And the said Abraham Gochenauer further says, that on or about the time of the sealing and delivering of the aforesaid obligation, th$ said John Good, Esq. under his hand and seal, at the county aforesaid, did execute a collateral instrument of writing, wherein he, the said John Good, Esq. did covenant that “the aforesaid bond or obligation, with the warrant, was so made and executed to him,” the said John Good, Esq. “for the purpose of securing and indemnifying him,” the said John Good, “against, or for, on account and by reason of being security with, and endorser for the said Nicholas Marks, for sundry sums of money, by him, the said Nicholas, borrowed and obtained on loan at the Farmers’ Bank of Lancaster, and from sundry individuals or persons.-’7 And he, the said John Good, Esq. in the instrument of writing last mentioned aforesaid, doth further covenant and promise, that in case the said Nicholas Marks do and shall well and . truly pay and satisfy the several debts, sum and sums of money, and all interest thereon, for which the said John Good became bound, with and for him as aforesaid, that then, and from thenceforth, the said bond or obligation, together with the warrant to confess judgment thereon, shall cease and be utterly void and of none effect, and be. surrendered and delivered up to him, and satisfaction be entered on the record thereof, in case the same shall be entered on record,” which said last mentioned instrument of writing, executed as aforesaid, by the said John Good, Esq. the said Abraham Gochenauer brings here into court. And the said Abraham Goche?iauer further says, that in consideration of the aforesaid writing obligatory, executed by the said Nicholas Marks as aforesaid, in' favor of the said John Good, Esq. he, the said John Good, became liable on account of the said Nicholas Marks for the sum of $1000, by writing or endorsin'gbis, the said John Good's name, oñ a note of'hand, or promissory note, dated the 19th March, 1816, at the county aforesaid, whereby the said Nicholas Marks promised to pay at the Farmers' Bank of Lancaster the sum of @1000 to the order of the said John Good, Esq. And the said Abraham Gochenauer further says that the last mentioned note of hand, or promissory note, was renewed, according to the custom of the incorporated banks of the commonwealth of .Pennsylvania, on the 25th June, 1816, at the Farmers Bank, aforesaid for the sum of ,@.950, át which said renewal the said John Good, Esq. and a certain Abraham ,Shenk became endorsers for the said Nicholas Marks. And the said Abraham Gochenauer further says, that the last mentioned note of hand, or promissory note, was continued according to the custom of the said Farmer's Bank, with the said John Good, Esq. and the said Abraham Shenfe as indorsers untill the 1st April, 1817, when the said note of hand, or promissory note, was renewed, aceording to the custom of the said Farmers' Bank, on the. said first of April, for the suni of eight hundred and fifty dollars, at which last mentioned renewal, the said John Good, Esq. and the said Abraham Gochenauer, (the present complainant) became endorsers; andthe said last mentioned note of hand, or promissory nóte, was continued in the said Farmers' Bank, according to the custom of the said bank, with the said John Good, Esq. and the said Abraham Gochenauer as endorsers, until it was protested on the 17th October, 1820, for the non-payment of the balance then due, which amounted to a great sum of money, to wit: @580. And the said Abraham Gochenauer further says, that on account of the aforesaid liability of them, the said John Good, Esq. andthe said Abraham Gochenauer, the said Farmers Bank of Lancaster, on the 27th of August, 1821, at the county aforesaid, obtained judgment against them, the said John Good, Esq. and the said Abraham Gochenauer, for the aforesaid sum of @5S0, together with interest and costs, of which last mentioned’ judgment the said Abraham Gochenauer was compelled to pay the sum of @297, on the 22nd of January, 1823, (although the said John Good, Esq. by the said writing obligatory, executed by the said Nicholas Marks, as aforesaid, had received full value and compensation for the whole .amount of the said judgment, obtained by the said1 Farmers' Bank, as aforesaid,) whereby the said Abraham Gochenauer hath sustained damage and injury to the amount of @500, and therefore he brings suit, &c.</p> <p>The plaintiff added counts for money had. and received; and for money paid, laid out, and expended.</p> <p>The following bills of exception were taken upon the trial of the cause.</p> <p>1. The cause being at issue, and the jury sworn, the plaintiff,, to maintain the issue on his part, having given in evidence the record of a suit by the Farmers’ Bank of Lancaster v. Nicholas Marks, John Good and Abraham Gochenauer, also an accomhiodation note, dated 15th August, 1820, for $580, payable 60 days after date, at the Farmer’s Bank of Lancaster, drawn by Nich-l olas Marks, and endorsed by John Good and Abraham Gochenauer, and the protest of the same, dated the 17th of October, 1820, also the record of the f. fa. issued on the said judgment entered to January term, 1823, No. 97, also, two receipts from the sheriff of Lancaster county; one bearing date the 22nd January, 1823, for the payment of $100, and the other the 29th of January, 1823, for two hundred and Thirty-six dollars and forty cents, marked No. 182, and having proved that he had paid a moiety of the debt and costs on the said fi. fa. the plaintiff then offered the contents of a paper, marked A, as follows, “the plaintiff offers the bank statement, in which it will appear that Nicholas Marks had a note discounted, indorsed by John Good, Esq. for six hundred dollars, on March 24, 1812, which was enlarged on the 23 June, 1812, to fifteen' hundred dollars, and on the 22nd December, 1812, enlarged to twenty one hundred, which note was renewed from time to time, with the same endorser, John Good, until the 25th of June, 1816, when it was renewed, indorsed by John Good, Esq. and Abraham Shenk, for nine hundred and fifty dollars, and so continued, with the same endorsers,.until the first April, 1817, at which time it was renewed, and endorsed by John Good, and Abraham Gochenauer for eight hundred and fifty dollars, and continued with the same endorsers, until the 17th October, 1820, at which time it was protested for $580, and suit brought against Nicholas Marks, John Good and Abraham Gochenauer. The plaintiff offers, in addition, the record of a judgment, entered to January term, 1S16, No 399, for four thousand dollars. John Good v. Nicholas Marks, in connection with a collateral instrument of writing, given by John Good at the time of the said judgment, to wit, the 22nd February, 1816, in which the said judgment is declared expressly to have been given as a mere indemnity for his, John Good’s being indorser in the Farmers Bank of Lancaster, and security for money obtained of divers persons by the said Nicholas Marks-’ ” which was objected to by defendant’s counsel; and on argument, the court sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed The court to seal this, their bill of exceptions, which is done accordingly.</p> <p>2. The plaintiff then offered in evidence, the contents of a paper marked B. as follows, “The plaintiff offers the bank statement, to shew when Abraham Gochenauer became indorser on the note to the.Farmer’s Bank of Lancaster, for Nicholas Marks,” which was objected to by defendant’s counsel; and on argument, the court Sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed the court to seal this, their bill of exceptions, which is done accordingly.</p> <p>3. The plaintiff then offered to prove “that John Good, the defendant, has received three thousand dollars of, the estate of Nicholas Marks,” which was objected to by defendant’s counsel, and the court sustained the objection, to which the plaintiff’s counsel did then and there except, and prayed the court to seal this, their bill of exception, which is done accordingly.</p> <p>The verdict wasfor the defendant, and the plaintiff assigned for error respectively, these three bills of exception.</p> <p>argued that the evidence ought to have been received under the money counts in the declaration, which were sufficient without the special count, Morris V. Taurin, 1. Dal. 51. Repalge v. Emory, 3 Dal. 51. Mas-singer v. Solms, 5 Serg. fy Razóle,4. There is such a privity between Gochenauer and Good, that the former should be considered in the character of a surety, and as such entitled to recover from the latter. Hays v. Ward 4 John. ch. rep. 133. 10 John. Rep. 524. 3 Slarkie’s Ev. 103, Piggot v. Thompson, 3 Bos. d’ Pul. 147. The receipt by Good of the fund is sufficient to make him liable to any person, who was damnified by Marks in the transactions for which it was pledged to him.</p> <p>The special count in the declaration contains no assumpsit, and the plaintiff is left to rest on the money counts alone. The evidence offered must be considered with reference to these counts.</p> <p>The bank statement was not evidence, it was offered isolated and alone, without any proof of its authenticity. It was but secondary evidence;the notes themselves should have been produced. Where an original is of a public nature, an examined copy is evidence, but this rule does not apply to the books of a bank which is convenient to the place of trial. When the bank is located at a great distance, it may be different. JBut the books themselves would not be evidence without proof that they were authentic. Farmer’s Bazik v. Weidner 13 Serg. Razóle, 256. Philadelphia Bank-?. Officer, 13 Serg. fy Razjole, 49.</p> <p>The judgment against Marks in favor of Good, was connected with the instrument of writing which was collateral to'it. That instrument was not prospective in its operation and could not refer to a note which was not in existence at the time, and with which it was altogether unconnected except perhaps by the bank statement which was properly rejected by the court. And besides a note taken in renewal of another is a satisfaction of the first. Slaymaker v. Cunda leer’s Ex’rs. 10 Serg. Razóle, 82.</p> <p>This evidence was irrelevant at the time it was offered: if any subsequent evidence then would render it relevant, the rejection of it, when it was offered, before such evidence was given, is not erroneous, Morrison v. Berky, 7 Serg. 4’ Rawle, 238, Bisenhart v. Slay maker, 14 Serg. 4* Rawle, 246, Weidler v. The Earmer’s Bank, 11 Serg. 4* Rawle, 139. The same remark applies to the evidence contained in the third bill of exceptions.</p> <p>The court cannot judge of all the bills of exception collectively; the bills must be examined separately, and if they are not evidence, severally, they are not evidence jointly. Harwood v. Ramsey, 15 Serg 4* Rawle, 31.</p>

<p>Where B gave a bond to A, conditioned to pay a hundred pounds on the 1st April . 1810, in which C made the following endorsement: “10 April, 1817, I do hereby agree, that the within bond shall be paid in one year after the above date witness my hand the day and year above written,” which was signed by C. Held, that without proving a promise by A, to forbear to sue B, or shewing' some other consideration; A could not recover from C on this agreement.</p>

IN ERROR. Error to the District Court for the city and county of Lancaster. This was a scire facias upon the official recognizance of Henry Reigart, a former sheriff of Lancaster county. The suit was brought in the name of the commonwealth- of Pennsylvania for the use ofJ.

<p>in error.</p> <p>Error to the District Court for the city and county of Lancaster.</p> <p>It was an action of debt brought by Marlin Hoover, the defendant in error, against Peter Burk, plaintiff in error, for carpenter’s work done “in building and finishing a house in MillerstownP— The defendant below in order to show that the house, in the finishing of which the work charged, was done, was the plaintiff’s own property and not his, offered to prove, that - the witness sold two lots of ground in Millerslown, Lancaster county, for twelve hundred' . pounds to Peter Burk, who paid him sixty pounds on account, and at the time, he Burk, “said he had bought them for theplainti S,Martin Hoover f that the seid Martin Hoover paid the witness the balance of the consideration, as agreed upon by Burk, the defendant, on behalf of Martin Hoover,end the witness.- The courtreceived all the evidence so offered except that Burk “said he had bought them for the plaintiff, Martin Hoover,’ this part of the offer the court rejected and upon exception by the defendant sealed a bill. The jury gave a verdict for the. plaintiff.</p> <p>Error was assigned’in the rejection of the evidence mentioned in the bill of exceptions.</p>

<p>Where the question was whether a judgment was paid? the execution with proof of actual psy.i ent over of the money made on it, is good evidence, without producing the levy, or vendue paper, containing an account of the sale of the goods out of which the money was made.</p> <p>Had the object been to prove the contents of the paper called the levy, or the vendue paper, it must have been produced.</p> <p>Neither the conduct of a witness in other . trrnsactions, nor particular instances of misconduct, can be given in evidence.</p>

<p>V» a case where it was a question of fact, whether the defendant had purchased it tract of land, (which he afterwards sold at an advance, of which the plaintiff claimed a partas a partner,) in partnership with the plaintiff, or whether he bought upon an agreement that the advance upon a resale should be applied to pay a specific debt, it is relevant and competent for the defendant to prove that it was sd applied, as it goes to support his defence in part.</p> <p>Where there is a purchase by individuals of a tract of land, and a sale of it again for their mutual benefit, assumpsit by one of them may be sustained to recover his share of the price. Dubitahvr if such transaction constitutes a technical partnershipj If it did, as it related only to a single item, and the equal division of the gain thereby made, and does not require that auditors should settle an account, the action of account render is not essential, but assumpsit may be maintained.</p>

IN ERROR. Error to the Court of Common Pleas of Schuylkill county. This was an ejectment by the defendants in error, who were plaintiffs below, against the plaintiffs in error, who- were defendants below, for fifty three acres of land, in which the plaintiffs obtained, a verdict and judgment. The plaintiff’s title to the land was founded on an improvement,, commenced in 1808, without office right or survey.

<p>IN ERROR.</p> <p>This was a writ of error to the District Court of Lancaster county; and the record returned shewed that the suit was originally instituted in the name of George Christine and Andrew Gotwalt, for the use of George Christine, as plaintiffs below against John M. Whitehill, the plaintiff in error as defendant. It is an action of covenant, brought for the breach of certain covenants alleged to be contained in a deed of conveyance of ten acres of land made by the plaintiff in error to George Christine and Andrew Gotwalt, dated the 27th day of July, 1814. The deed is recited and set forth in the declaration, which states that the plaintiff in error, and his wife, by their certain indenture $c. “in consideration of twelve hundred dollars to them in hand paid by George Christine and Andrew Gotwalt, did grant, bargain and sell, alien, enfeoff, release and confirm to the said George Christine and Andrew Gotwalt, their heirs and assigns a certain tract of land, situate in Bellam township in the county of York” described by certain metes and bounds set forth in the, deed “containing ten acres neat measure, being part of fifty-eight acres and one hundred perches of land late the property of John Whitehill of Donegal township aforesaid deceased, which was decreed by an Orphans’ Court of York county aforesaid held the 15th day of September, 1812, unto John M-. Whitehill” (the plaintiff in error) “one of the sons of the said John Whitehill deceased, (and which James Whitehill, and others the heirs of the said John Whitehitt, deceased,) did by their, deed of release, grant and confirm- unto the said John M. Whitehitt, (party hereto) and to his heirs and assigns forever, to have and to hold the said ten acres of land with the appurtenances, unto the said George Christine and Andrew Gotwalt, their heirs and assigns forever, subject to the quit rent then due thereon or to become due to the proprietary William Penn, of his heirs.” And further, “the said John M. Whitehitt and wife, for themselves their heirs, executors and administrators did thereby covenant promise grant and agree to and with the said Geo. Christine and Andreio Gotwalt their heirs and assigns that the said John M. Whitehitt and wife and their heirs, the above described ten acres of land hereditaments and premises thereby granted and released or mentioned, or intended so to be with the appurtenances Unto the said George Christine and Andrew Gotioalt, their heirs and assigns, against them the said John M. Whitehitt, and his wife and their heirs and assigns, and against all and every other person or persons whomsoever lawfully claiming, o'r to claim, the said above described ten acres of land, or any part thereof, should and would warrant and forever defend &c. ” The whole of the purchase money, was stated to have been paid by Christine and Gotwalt and the possession of the land to have been delivered to them by John M. Whitehitt. The breaches assigned were that “neither he the said John M. Whitehitt, at the time of mating his indenture and conveyance as aforesaid, nor his father the said John Whitehitt before and at the time of his death, had any lawful right or title to the said ten acres of land or any part thereof or property in the same, or to or in the said fifty eight acres and one hundred perches of land or any part thereof, represented, stated, and declared by the said John M. Whitehitt, in the said indenture to have been the property of his said father John Whitehitt, deceased, at the time of his death; of which he the said John M. Whitehitt, in and by the said indenture represented stated and declared the said ten acres to be part and that no lawful right or title ever was derived to the said J. M. Whitehitt, from his said father under or by virtue of the aforesaid decree of the Orphans’ Court aforesaid of York county. Nor did the said James Whitehitt and others the heirs ,of the said John Whitehitt deceased, by their deed of release grant and confirm unto the said John M. Whitehitt, his heirs and assigns the said ten acres with the appurtenances or any part thereof, as the said John M. Whitehitt has represented, stated and declared in the said indenture, but that at the time of the sealing and delivery of the said deed, and at the time of the death of the said John Whitehitt, the lawful right and. title to the said ten aeres and the appurtenances and the said fifty eight acres and one hundred perches of land were vested in John Penn and William Penn, late proprietaries of Pennsylvaniay as part of their man»' of Springeisbury, in the said county of York, and so the said George and Andrew say that the said John M. Whitehill, fraudulently and deceitfully, represented, stated and declared in the said indenture to the said George and Andrew, that the said ten acres of land, with its appurtenances were the property of the said John Whitehill, deceased at the time of his death, that the said ten acres became vested in him and his heirs and assigns, by the aforesaid decree and the release of the said James Whitehill, and the other heirs of the said John Whitehill deceased, when in truth and in fact, no such right and title were vested in his said father, John Whitehill, deceased, or in him the said James White-hill and others, the heirs of the said John Whitehill, deceased, at the time of the sealing and delivery of the said indenture, or at any other time before, whereby the said John M. Whitehill hath not kept with them his covenants aforesaid but hath broken them, and hath not kept and fulfilled his covenant of warranty’aforesaid, but hath broken the same in this behalf, that at the time of the sealing and delivery of the said indenture, the said John M. Whitehill, had no lawful right and title to the said ten acres of land neat measure with the appurtenances, nor was he lawfully seized in fee simple thereof, nor had right or title to convey the same, but that the. lawful right and title to the same at the time of the execution of the said indenture, were vested in John Penn and William Penn, who were lawfully seised in fee simple of the. said ten acres with the appurtenances, as part of their manor of Springesisbury in the county of York aforesaid; and that the said John Penn and William, Penn, aforesaid, to wit: on the first day of November, 1816, entered into possession of the said ten, acres of land with the appurtenances, and evicted the said George and Andrew out of the same, and now lawfully hold the same in fee. simple. ”</p> <p>The plaintiffs below, on the trial of the cause, shewed clearly that the title to the ten acres as well as to the residue of the 38 aeres, and one hundred perches, was in the Penns. That it never had been vested in John Whitehill, the father of the plaintiff in error;, although he had claimed and b.een in possession of' the fifty eight acres, and one hundred perches, for several years during his life,, and down to the time of his death, under p warrant, dated the fifteenth of April, 1763, in the name of -a James Bailey, and p survey made thereon, the 26th of the’ same month, including this with other land and a regular chain of conveyances from the warn rantee to himself.</p> <p>The plaintiffs in the court below, also gave in evidence, a deed of conveyance, dated the third of April, 1816, from John Kaafi felt sheriff of York county, shewing a sale of all Andreio Gotwalts’s undivided moiety, or half part to Christine his co-tenant and co-plaintiff in this suit; by which George Christine, became the sole owner and claimant of the land under the conveyance from the plaintiff in error.</p> <p>A verdict was given for the plaintiffs' and the errors assigned1, material to be noticed, turned on the construction off the deed of the 27th of July,- 1814, from John M. Whitehill to George Christine, and Andrew Gotwalt.</p> <p>Contended that the recital in the deed did not amount to. a covenant of seisin. Among the formal parts of a deed, recital® are not enumerated, but are usually inserted, in the premise and have not such importance, as would be imparted to them if covenants of seisen and title are to be drawn from them. 2 Bla.. Com. 297. To infer a covenant of seisin here would be wholly inconsistent with the express covenant, that the property conveyed was subject to quit-rents, for the former would be broken at the execution of the deed by the existence of the incumbrance off such quit-rent.</p> <p>When there is an express covenant it takes away all covenant® by implication Noise’s case, 4 Coke 80. Frost v. Raymond 2 Caine’s Rep. 88. Here there is an express covenant of general warranty, and a covenant for further assurance, and it would do> manifest injustice to imply a covenant in the face off these coveenants. Implied covenants are not permitted to be broader than express covenants, which are clear of all doubt or difficulty as to the meaning of the parties. Kent. v. Welch, 7 John Rep. 488.. Vanderkarr v. Vanderkarr, 11 John. Rep. 122. Jackson v. Hoffman, 9Cowan. 271. Duncan v. Kieffer, 3 Binn,. 126.</p> <p>An implied covenant cannot exist in a deed which has an express covenant to which such implied covenant is repugnant; and the covenant of seisen which is asked to be implied here, and was broken when the deed was executed, is repugnant to the covenant of warranty, which would be- broken only on eviction, or the- covenant for further assurance, which would not be broken until a demand for further assurance was made. The recital is usually the work of the conveyancer, and is here but a mere description of the property conveyed. To imply covenants from such recitals, would be dangerous doctrine, involving parties in fancied covenants which they never made.</p> <p>But he denied that a covenant of seisin was properly laid in- the declaration, in which great precision is required. Ami. Pre. 299, Carpenter v. Alexander, 0 John. Rep. 291. 3 Caine’s Rep. 73. A breach of a covenant of seisin is set out, but such covenant itself is not, nor is the deed set out in his verbis. The covenant of warranty is set out in the declaration; but if both were set out, there is but one assignment of breaches, and it is doubtful to which of these covenants the assignment of breaches applies. Where there are two covenants set forth there should be an assignment for each. He referred to a manuscript opinion of the Supreme Court delivered by- Tilghman C. J. in the case of Freeman v. Pen-node’s Administrator.* He referred also to 2 Mas. Rep. 433. and 4 Mass. Rep. 408.</p> <p>The recítalas it has been called contains the assertion of a mat torial fqat amounting to a covenant of title. The words used “het jng the property,” import the highest right which can be ?.aquired over real or personal estate. 5 Jacob's Law Hie. 332. It was a plain covenant of seisin, and has been so solemnly decided tp be by this CQurt, from which the court below took the law given in charge to the jury, Christine v. Whitehill, 16 Serg. §* Jlaxolei 98. The words “grant, bargain sell” contain, under our acts of assembly, a covenant of siesin, and are also in this deed. But no set form of words is required to constitute a covenant, any form of words which shew that the parties intended to convey a title will amount to a covenant of that title.</p> <p>It is not properly a recital, which ended with the description of the property, the metes and bounds, but it is a positive averment of the interest which the grantor had in it, and amounts to a covenant of seisin, which so far from being inconsistent with the covenant of general warranty, was altogether coincident with it. But if it be called a recital, recitals will sometimes have the effect of covenants.</p> <p>The claim of the plaintiff is properly spread upon the record it is for breaches of covenants: which may be stated in the words of the covenant, or according to their legal effect.</p> <p>In a declarationfora breach of a covenant in a deed, it issufficient to state that the defendant conveyed to the plaintiff certain lands “in the said deed particularly mentioned and specified” without any further description, Durham, v. Pratt, 14 John. Rep. 372, and the breach may be assigned in as general words as the covenant. Bender v. Fromherger, 4 Dali. 440. But the plea of the defendant; “performance with leave” &c. admits the covenants as set forth in the declaration, Milford v. Roads, 2 Con. Rep. 14. 2 Jacob’s Law, Die 439 Vanhorn v. Frick, 6. Serg. Rawle, 90. Powers v. M’Ferran, 2 Serg. <§’ Rawle, AS. Marlin v. Ives, 17 Serg. Sf Rawle, 365, Fick v. Baldioin id. ISI. Abbott v. Mien, 14 John. Rep. 248. Kellogg v. Wilcox, 2 John Rep. 1 Hamilton v. Wilson, A John Rep. 72. Morris v. Phelps, 5. John Rep. 49. Caswell v. Wendell, 4 Mass. Rep. 108. Nichols v. Walter, 8 ikfoss. Rep. 243. Harris v. Newell, 8 Mass. Rep. 272. Wolverton v. The Commonwealth, 7 Serg. Rawle, 276. Moore v. McBride,J Penn. Rep. 148, 370. Wether oto y. Keller, 11 Aer/p §• Razóle, 272. Peebles v. Reading, 8 Aerg-. ^ Razóle, 495. Lauman v. Thomas, 4 Am. 58. Boyles v. Kelly, 10 Aer¿\ ¿y Rawle, 217. Fisher v. Larick, 3 Aerg\ Rawle, 321. Charnbers v. Mifflin, 1 Penn. Rep. 78. A/ar v. Bradford, 2 Penn. Rep. 384. 1 Powel, 238, 237, 238. 11 Aerg\ <§• Razóle, 139. Douglas, 226, 27, 727. Aew. 155. 2 Com. D. title Covenant D. 2. 566. 2 Roll. Jib. 250. 6 Vin. Covenant, y.. 423. Id. Covenant C. a. 3. Cro. Jas. 359. Cramers. Bradshaw, 10 Jolm. Rep. 2 Mod. 91.</p> <p>The notion of implied covenants is derived from the civil law, and is better suited to an age when courts protected ignorant men, who could not protect themselves; but they are not consistent with the spirit of this age when the people are well informed, and can always guard their interest by express covenants; nor are they consistent with the policy of our laws, which promote and encourage the rapid transfer of property. If they be tolerated, they will, contrary to the intention of the parties, become more operative than express covenants. The covenant of seisin is more extensive than the covenant of general warranty, they conflict with each other, and where the latter is expressed it must negative the implication of the former, expressum facet cessare taciturn. The part of the deed relied on for the covenant of seisin is a mere recital, it is in the premises of the deed, and uses the word “being” which is the language of recital, and contains a description of the property as being that which his father claimed, or owned: this was necessary to describe the property.</p> <p>But the covenants are not set out in the declaration either in tot-idem verbis, or according to the legal effect. The plaintiffs should have set forth that the defendant covenanted that he wás seised,&c. and the breach. This has not been done. — 3 Cha. Ca. 101, Woods, conveyancing by Pozoell, 202.</p>

<p>appeal.</p> <p>Appeal from the Circuit Court of Lebanon county, held by his Honor, Justice Huston.</p> <p>It was an ejectment for a tract of one hundred "and seventy-five acres of land, brought by Margaret Eckert, Polly Eckert and Louisa Eckert, who were minor children of Peter Eckert, deceased, and sued by their guardians, against George Eckert George Boyer and Samuel Fisher. The plaintiffs made title to the land by an alleged parol contract or sale, made by Philip Belt-er t, deceased, to Peter Eckert, his son, accompanied by possession, and improvements made upon the land. ' A former ejectment had been brought against the plaintiffs in this, in which a verdict and judgment was recovered against them, which was taken by appeal from the Circuit Court, in which it was tried, and affirmed in the Supreme Court. The opinion of the court in that case is subjoined in a note to this.</p> <p>Philip Eckert the father of Peter Eckert had eight children; he survived Peter, but died before this suit was brought. The following evidence was gi'ven in the cause.</p> <p> Testimony of the Plaintiffs. </p> <p>Christian Bricker — I walked down the road to see a triangular piece of land; the old man stood before his house at the road, and asked me which way I was going. I said I was going to see this tract of land, I wanted to buy it if I could get a contract. lie said he had nothing to do with it, if I wanted to buy it I must go to Peter. I went to Peter’s house after I saw the land; -when I came there, the old man was there also. Then I tried to make a bargain with Peter and did not agree. Peter said it made no matter, ho would be down soon and pass my house, and then perhaps we could make a contract. After sometime Peter came into m.y house on his way to town — then I had bought another tract.' This was in eighteen hundred and twenty four,in March or April. The old man when I met him at Peter’s house, told me that he had often told Peter, or advised Peter to sell it; that if he was in Peter’s place he would sell it, as it was cut off by the canal, it was unhandy. The old man and I often talZted of the land. He said Peter wanted to pay money on the land, and he refused to take it; he had money standing out himself, and some he was afraid he would lose, and therefore he would not take it. He said he had made a will and Peter need not pay any thing until-after his death. That he had given it to him in his will, and he was to pay yearly a certain sum, the amount witness does not recollect. He said he had given it at twenty-ñve hundred pounds, but the canal had done it damage, and if no damages were recovered, his estate would have to pay five hundred pounds back. This was before I intended to purchase. lie told me more than once how much Peter was to pay yearly. I have forgotten it. I was at the old man’s and worked there after eighteen hundred and twenty-four. He said the Mases lived on that land, and that spited him,, as they never had paid him for it- — this was after Peter’s death. He said he would willingly see the children have it if one of them was a boy. He had made his last will but had now torn it, and made • another one. I lived half a mile from Philip eleven years. Peter,as much as I know,built a house and smoke house, both of rough stone and a granary in the barn. I do not know that Peter planted any orchard, lie made fences on the land and cleared a patch of land.</p> <p>Ido not know that Peter paid the old man rent for the land, the old man said Peter built a new house. Philip had children, six daughters, and two sons, George and Peter. Philip said nothing about Peter having this farm, and his daughters nothing. Pie never talked about the children. I was not at Peter’s when the.house was building,cxcepton Sundays. Philip said Peter might build it as he pleased. I do not know who bought and paid for the timber. Peter hauled it, the old man for a long time before had no team. I do not know that Peter got the horses and farming untensils when the old man quit farming. I do know he got the old man's horses, &c. whether he paid for them I do not know. The old man made no vendue when he quit farming. I do not know who owned the personalproperty. Peter owned some,and the old man some. The old man lived two miles from this place. The old man moved away from the old place to the one where he died two miles from the old place. Geo-rge lived on the old place before the old man moved away. The old man had his horses,stock and farming utensils at theoldplace:he had only one horse after he moved and two cows, and no farming utensils. George moved from this place in dispute to the old place and Peter to this now in dispute. Philip said he would give the old place to George as he could pay for it better, as he had kept house longer.</p> <p>George Lose. I and one Joseph Bricker built the house, so much as I know, for Peter; when. I went to make the bargain Joseph Pricker was with me, the old man was then at Peter’s, no bargain was then made, the old man was once a carpenter. Peter said he did not understand it. Peter and I and the old man talked of it. The old man said Peter and I should consider about it. I came again, and Peter and I made a bargain, and I finished the house. Peter paid me about sixty five pounds,not sure as to the exact sum. Some extra, five dollars to put an arch over the front door. I made a board and John Stoner painted the name of Peter and his wife on it, I have seen it since. The size of the house is forty feet by thirty-two. I cannot tell where the lumber was got. I went with Peter to Dr. Frener’s to buy paint and oil. Peter bought every thing we used, we had nothing to do with the old man. The old man was often there. I cannot tell that he bought any materials. The house was built the same spring they began the canal.</p> <p>Joseph Pricker. Lose and I built the house. We did not make a bargain the first time we took it into consideration. Peter said he did not understand much about buildings, the old man ^yas pres,ent the first time. Lose made the bargain, and he and I built-the house together. I think we got about sixty-five pounds for outwork and five dollars extra for the arched door. Peter paid us our moncy. The house is forty feet by more than thirty. I think we built the house in eighteen hundred and twenty two. I know from the board in the wall. The board states that the house was built by Peter Eckert and Jlnna Maria his wife in eighteen hundred and twenty two. Peter bought all the materials,and brought them as we wanted them. Peter built a bake oven and a house over it, and a smoke house, of stone. I did the Carpenter’s work of these houses. He built a granary in the barn before the house was built. I did the work. This was the first year Peter moved on this place. The old man nearly joined places with Peter — they lived in sight of each other. After the house was built I was at work in Peter’s barn. The old man came and told me, that Peter had offered him money on the land. He would not take it. The old man told Peter to put out the money himself. He had money out himself, and was afraid he would lose some of his own money, Peter was younger and more able to take care of it or look after it. Peter told his father he did not know what would happen, how matters would go about this land. That he had built on the land, and it might be taken from him. The old man said it was made in such a way that no person could take it from him. This was not long after he offered the money to his father. He offered the money in the spring, and this conversation was before harvest. The old man told me, Peter had nothing to pay for his land till after his, the old man’s death, and repeated the former reasons for not taking the money, and that Peter was to pay nothing till after his death. Peter said take the money and give it to your daughters, they have more need of it than I have. The old man said no let them see how 'they will come through the world — they had more than he had when he began house keeping. The old man did not mention the sum Peter offered to him. The old man said nothing about what Peter was to give, or to pay for the land during his, the old man’s life. Pie did not say Peter was to pay rent, and take the price of the buildings out of it. Peter paid for the buildings, as mueh as witness knew. The old man told me when the masons were done they wanted the money, or a note with Interest. That Peter told him ■so, and he told Peter to borrow the money, that he had some which he would give him, but not quite enough, then he went to his sister,Widow Brandt, and from her got what the óld man could not raise, and paid the masons, then Peter got money from the Turnpike and paid the money borrowed from the old man, and widow Brandt. I was there while Peter was lying dead. The old man came to me on the porch. He was crying. He said now his best friend in the world was dead, yet he was glad that Peter and him had settled all their affairs; that Peter owed him nothing and he owed Peter nothing — it pleased him that they had settled it themselves,and he, the old.man, had not to settle with others. The old man told me nothing of how Peter was to have it during his life, nor what he was to give for it. When the old man got any grain from Peter he always paid him for it. The old man told me that he paid Peter for every thing as if he were a stranger. I prepared locust posts, and Imhoff the railb and made fence. I was two days preparing the posts. I do not knfyw how much fence. Peter paid me for my work. I was there eight or ten years ago. I cannot tell the value of the improvement^</p> <p>John Zuch. — I am not much acquainted with the family — but some time after Peter’s death, Jctcob and George Mase came to my barn and spoke to me if I would not go .along to old' Philip Eckert’s house; they said they had something to speak with him, and wanted some body along. I went with them to old Philip Eckert’s; they had a good deal of conversation; and the Mases asked about the affairs between Philip’s and Peter’s estate; they asked if he had any. claim on Peter’s estate, he answered he had no demand. Peter does not owe me any thing. lie said he had made a will in his, Peter’s life time, and in that will ho had given this land to Peter at twenty-five hundred pounds, but if Peter does not get out of the Canal company five hundred pounds, then Peter shall have it'for two thousand pounds. I am not so positive but I think the old man said Peter had offered him money. The old man would not take it, saying he had a good deal of money out already, and was afraid some of it would be lost. This he gave as a reason why he did not take the money. This meeting was after Peter’s death, the next winter, in January. The old man said as soon as the masons did the mason work they came for their money, and Peter had it not; they asked a note with interest; the old man said to Peter that he should not give his note. He had some money, he would give him -some, and he took it. He said he lent it, and Peter paid it back. The Mases were there before I got to the house, they said they would like to know if Peter’s children would be the heirs to that land; they perhaps told me to remember. Q, Hid theMasestcll him to take care what he said, they had a-witness? No. They appeared as friends. I may have been taken as a witness I cannot remember. I went as a neighbor, we were good neighbors. After we left Eckert’s they told me to remember the words spoken in German, to remember that Peter’s children should be the heirs of what Peter was to get out of his estate. I do not remember that they said they had been to a lawyer; they may have said so, but I do not now know any thing about it. I do not recollect any thing about rent, or his giving Peter a receipt for the rent, or who got the rent, while Peter was on the place. I do not know of any receipt for the rent.</p> <p>Adam, Stager. — When I built my barn Philip Eckert came to me for stones. Philip said he would have to pay Peter for them as well as me. I asked why. Philip answered he had given Peter the plantation out and out. lie must pay for them there as well as any place else. I eannotsay what year this was exactly; it was about eight years ago. I lived two or three hundred yards from him. I gave him stone as a present; I cannot tell for what he wanted them, and I cannot tell when Peter’s house was built, whether before or after my barn. I do not know how many stones. He picked tb.em yp on the fields.</p> <p>The Deposition of William Lutz. —Philip Eckert told deponent more than once, that he had given the plantation upon which his son Peter resided, in Lebanon county, to the said Peter. I lived a near neighbor to Philip, and Peter Eckert g.nd knew them well. I went to Philip Eekert’s house, with Peter Daub his son-in-law, after Peter’s death. Philip Eckert asked Peter Daub if he had got the place from the Maces. Yes, he said, he could have it if he would rent it from them. Philip Eckert said yes, if they only had the plantation it would be well. I was present when the guardians of Peter Eckert’s minor children and the Maces were trying to compromise the matter. The guardians offered to give, up the plantation if Philip Eckert would give writings to give Peter’s children an equal share with his other children. Philip said he would not cut them out, but refused to give writings; they could not settle. I have heard Philip Eckert say that he had given, anjaslagen, the said plantation to his son Peter for twenty-five hundred pounds, and if Peter did not recover five hundred pounds from the Union Canal Company for damages, that his Philip’s estate, should make it good to Peter. George Eckert, the brother of Peter, got between two and three hundred acres of land from his father Philip. Philip had only two sons. I also heard Philip advise his son Peter to sell a part of the said land. I also heard Philip Eckert say that his son Peter was nothing in his debt until after his death, then said Peter should pay the said Philip’s estate, twenty-five hundred pounds. I also heard Philip Ecki ert make the widow of Peter an offer, if she would give the plantation to him, he the said Philip would give her three hundred dollars, and in case he could settle with the guardians of Peter’s minor children, he would give her five hundred dollars. The transaction of which Philip Eckert told me, was on the second day of March, eighteen hundred and twenty-six.' ■</p> <p>John Hoffman. — I know nothing about a contract for this land. I had no conversation with Philip about one. Old Mr. Eckert and Lesher and I, contracted with the Canal Company about damages. We joined in getting a survey. Mifflin told us to get Hollingsworth to survey the land damaged by the canal, and we did so; The old man told me if Peter did not get five hundred pounds from theCanal Company, his estate must give five hundred pounds, as he had given him the land. He did not mention how he had given it. We never spoke about it afterwards. This was about two years after they had finished digging the canal. I am one of the administrators of Peter’s estate, John Mace is the ' other. I saw no receipt from Philip to Peter for rent, and know of none; I gave all the papers to the appraisers. There was a due bill from the Turnpike Company. The company were indebted to Peter. X think Mace got the money for it. I never received it. It was brought into our administration.</p> <p>Michael Spang. — I was at Henry Tice's and old Mr. Eckert came there and said he had great trouble, he said he wanted advice from Mr. Tice, who was sick and could not give him advice. I asked what his trouble was and then he told me about this plantation, that he had made a will and willed it to his son Peter for twenty-five hundred pounds, that if Peter did not get five hundred pounds from the Canal Company it must come out of his estate after his death. I said you had best settle with them, that was the best advice I could give. He said they were on the place, the guardians and him, for the purpose of settling, and he made an offer to the guardians to give Peter’s children a share of his' estate, as much as one of the others: not as much as George. The guardians asked how much George had, and how much one of the girl’s or child’s share was; George came and said if they want to know that, Or weigh you while you are living do not settle at all, and then they parted. I know the land thirty years. George lived on it. He married twenty-four years ago, and went on it, lived on it twelve or thirteen years, and moved to the old place. Peter moved to the land in dispute when George went on the Mansion place. I cannot say the year. The old man lived with George several years on the old place. The land in dispute is rented at four or five hundred dollars. It is two miles from town on the road; it was worth as mueh when Peter lived there as now. Peter had it in as good order as now. George built a spring house of stone and a large log stable on it. I cannot say as to the wagon shed and corn cribs. The land was worth more then than it is now, but rents are not so high.</p> <p>Jacob Swope. — I live adjoining this place. I think Peter came there in eighteen hundred and twenty. I know the house Peter built on the land, and a smoke house, and a granary in the barn. He built in a year or two after he came into possession. I think the value of the improvements he made, would be two thous- and dollars. I would hardly do it for that. He worked and managed the land as his own. His father lived in sight while he was building. I never heard the old man say how he had given it to Peter.</p> <p>Jldam Stager,Michael Spang, and Joseph Bricker, testified that the improvements made on the land by Peter were worth two thousand dollars.</p> <p>John Bucher. —I was collector of tax in eighteen hundred and twenty-three. I received from Peter twelve dollars and forty cents, and ten dollars and one cent, this was for eighteen hundred and twenty-two. I was Assessor. I forgot what old Philip returned. Peter returned this land himself. Philip returned what he lived on, and no more. The old man said the canal spoiled a good deal of Peter’s land. <£It spoiled much land of my Peter, or for my Peter.”</p> <p>Peter Smith. — I was Collector in eighteen hundred and twenty four and eighteen hundred and twenty-five. Peter’s tax was ten dollars and seven dollars and fifty cents: he or his administrators paid it. This place was assessed in his name. I did not call on Philip but for the tax where he lived.</p> <p>George Miley. — In eighteen hundred and twenty I took the assessment for mv father. Peter Eckert gave in his assessment of this place. I cannot say whether he or George gave it in. Peter was assessed tor this tract and George for his own.</p> <p>Dr. Benjamin Frener. — Peter bought white lead, &c. for his house. I cannot tell the amount he paid for it. After the house was built the old man and I talked about buildin g it. I said Peter was particular, he wanted venitian blinds. He said Peter was able enough and had money.</p> <p>Jacob Nagle. — Peter Eckert when he was building his new house, got a lightning rod from me for it, and he paid me for it.</p> <p>George W. Kline, Esq. — After Peter’s death, and before the old man’s death, the administrators or one of them, John Mase, and the three guardians,and Philip Eckert met in my office. The object was to compromise the difficulty as to this farm, which arose after Peter’s death, and which it was alleged had been given to Peter. The guardians alleged it was absolutely the property of Peter’s children, and this was denied by Philip. He denied that he had.given it absolutely to Peter. Philip stated there had been an understanding between him and Peter, that Peter was to have this farm, but he had never given him any writing for it. If Peter had lived,there would have been no difficulty about it. He con sidered he had a right to dispose of it as he pleased, never having given him any transfer of it. Philip persisted he had transferred only by words; there was an understanding that Peter was to have it,arid if Peter hád lived there would have been no difficulty,but he sidered he had the light to do with it as he .pleased. Terms of compromise were not carried into effect. No papers of any kind were produced at that time. None submitted to me on either side. Peter died, August eighteen hundred and twenty-five. This may have been ■ six months after, more, or less. Question. Did not you see a paper in the hand writing of L. G'. Hollingsivorth, a ' settle-merit'of rent made b.y Philip and Peter . a short time before Peter’s death, and whether he did not give it .to J. Mace, and whether it was not part of the matter talked of before him? Answer. I never saw this or any other paper until after I was employed as counsel in tire suit brought. Their papers were given to me by my clients. I positively say no paper was produced or mentioned that day in my office. Í have not been counsel since the last circuit court. I have not seen this paper since.</p> <p><£■dam Stager. — I think Peter Eckert was between thirty-five and thirty-six years of age when he died.</p> <p> The Defendants gave in evidence </p> <p>A deed, George Buehler and wife to Philip Eckert, dated in eighteen hundred and two, for- one hundred and sixty-seven ahfes iii consideration of two thousand five hundred and two pounds, acknowledged in eighteen hundred and two, and recorded same year in Dauphin county; Patent, twenty-six August, seventeen hundred and sixty to Ttbraham Weidman for same land. The will' of Philip Eckert, dated twentieth July, eighteen hundred and twenty-seven, roved twenty-ninth November, .eighteen hundred and twenty-eight, was offered in evidence by the defendants, Objected to by the plaintiffs and admitted by the court,and the point noted by the court. Codicil, thirteenth of May, eighteen hundred ahd twenty-eight, was given in evidence with the will.</p> <p>Defendants 'offered to prove that Peter lived on the lower plantation till eighteen hundred ahd twenty, and got from his father all his farming utensils, stock, &c. that George lived here before, and built and paid for what he built. The evidence was objected to by the plaintiffs and the courtadmitted the evidence and noted the point.</p> <p>George Beckly. — For two years I lived a mile from old Mr. Eckert while he' lived on the lower place. I cannot tell the year Peter moved5 it was in the Spring. Peter took along all the things the old man had on the farm, five horses, one colt, two wagons, all the cattle on the place, and two ploughs and two harrows. • I do not know how many cattle. The old man took two cows and one horse. He drove the sheep along and the hogs. I cannot tell on What terms Peter had this place, whether on rent or to be sold to him. He lived there four or five years. I do not knowhow much a year th,e place was'worth. George built a horse stablefor hia hprbes, I cannot recollect any more. Peter worked on the lower farm for his father, I do not know, if he had the place or not. I cannot tell if Peter was married a year, or a year and a half before he moved. Peter had always lived withhis father. I believe he farmed and managed the old place about eighteen hundred and twenty when he married. I and the old man were at Peter’s and saw the stock. The old man lived with George about two years, George built a house there for the old man. I did not count the cows or sheep. I saw them and Peter told me he brought them with him. The stock on the old place belonged all to the old man. Peter had none, Peter himself told me he had none. I did not know George’s stock when he moved. I had a talk with Peter about the house, I came to his new house, and I said you have a fine house, he said yes, if I had it all paid- for; I said you can pay that, he said if my father would give me the money, tie did promise to give me the money to pay the hands off. Peter safd his father gave him the money, almost all, to pay for the house.</p> <p>This was the same year he built his house, I cannot tell the year, it was in the fall,at his own house. I never told this before,! had no conversation since I left the court. I forgot it entirely this morning. It came into my head all at once. George asked me if I had said all, I told him no; and told him what I now say; this was in the court house, I never had any conversation before with George about what I was to swear. I went.to Peter as a friend, when we had this conversation. George’s mother and myself are cousins; I never told this from that time till to day. I know no more.</p> <p>Michael Seltzer. —In eighteen hundred and twenty-one, old Mr. Eckert came to Jonestown for somelumber. He wanted joice, rafters, seantling and boards; I had none of the first that suited — but he picked four thousand feet of boards. Peter got and paid for them. The old man said Peter would come and pay for them. I told the old man to bring a bill for scantling,- and I would get it. Peter brought that bill and the next Spring I got joice, rafters and scantling. That was in April or May eighteen hundred and twenty-two. The whole came to better than sixty pounds. Peter paid for all. The old gentlemen told me it was for a house for his son Peter.</p> <p>John Wyne. — I built a stable on the place for George; George paid me for it. I cannot tell what year George lived there; I also’ built a wagon shed and corn crib.</p> <p>John Heffleflinger. — Stoner made a contract for himself and me at Eckerfs for twenty-three pounds for tending masons. We began and finished the building and plastering. I burnt a lime-kiln which came to six dollars. Sometimes the old man was there,and assisting at getting stone for the lime kiln. This was before the house was built; Peter Eckert paid me twenty-five pounds, five shillings.</p> <p>Conrad Daub. — I built a spring house for George, Weirick helped me, it was of stone. I agreed with George and he paid me twenty or twenty-two dollars.</p> <p>Defendants offered to prove by Lydia Eckert, widow of Philip, a settlement between the old man and Peter. Mr. Norris requires the offer to be reduced to writing. The court refused to require it, and the point was noted by the Judge.</p> <p>Witness. — Peter farmed the old place one year before ho moved up. It is more than I can toll just how he was to go. Peter got all his father had farming with, horses and gears, wagon, ploughs and young creatures and what he had on the farm — The father made no vendue; he got five horses, all he had but one he kept for himself,, and a'good many cows and-young cattle. I cannot tell more~I cannot tell how many'sheep,but three or four he kept,so of the hogs, two ploughs, Í do not know about the harrows, bags, and bagging not made up. Peter sold the grain he raised the year before he moved. Peter came once there, he did not live long after he came there, and said he had money he wanted to pay on the place rather than put .it out. . I told the old man, and he would not take it. I saw Hollingsworth write- the receipt for the rent, I never heard Peter say any thing about it, I only know what the old man told, and it is not in the chest.</p> <p>Articles of Agreement between Philij] Eckert, and George Eckert, dated twenty-third December, eighteen hundred and nineteen.</p> <p>Deed from same to same, dated fourteenth January, eighteen hundred and twenty, for two hundred and thirty-eight acres, consideration three thousand pounds — one thousand pounds in hand, and two hundred pounds a year. Witness — George built a house. I was along when George paid the one thousand pounds. It was paid at Goodharts, in town." I cannot tell the year Peter married) nor how many years he was married. He worked for his father as long as he was single. We lived with George on the old place a year.</p> <p>Jacob Swope. — George built a frame piece to the barn, a stone spring house, a stable for his.horses of logs, a wagon shed and corn crib together, and a hog stable. The rent for that place was four hundred dollars a'year. . The rent was not so high when George lived there, but the grain was higher. There are forty acres of woodland, or above thirty on the lánd in dispute. George lived about ten years on this place., The tract contains one hundred and forty aeres.' The tract of land is good.</p> <p> The plaintiff then gave evidence. , </p> <p>Frederick Stoner. I am a mason. Old Mr. Eckert was there at Peter’s when the cellar wall was built. It was six feet the old man wanted it. My father said he would not do it unless he would pay extra. Old Philip went away and said no more, and we made it no higher. Justas we were finishing the work, the old man was there, and he said Peter had not the money to pay us. My father said he might give a note for it, and the old man went away and said nothing. When we were done with the work Peter paid us the money — the old man was not there.</p> <p>George Shott. I was collector in 1S18 & ’19. I called on George on the land in dispute, and he paid me the taxes for 1818— ninteen dollars and eighty-one cents.</p> <p> Evidence for defendants. </p> <p>Jacob Stouch. The land in dispute rents for four hundred and twenty dollars this year — last year for $433.</p> <p>George TV. Kline. I was counsel between these parties in May, 1829. Christian was then examined and sworn in the usual manner. So was Joseph Bricker and George Lose, and John Bucher and Peter Smith, and George Miley. I am not certain as to Emmanuel. John Zuch and Wm. Leitz, were all examined.</p> <p>The record of the former trial and verdict of the jury were given in evidence.</p> <p> Evidence for the plaintiffs: </p> <p>Adam Stager. I have known George and Peter Eckert, more than thirty years. George took a good stock from this place— four, five or six horses. Here the court said this is wasting time. The Court refused to examine witnesses as to what would lie the wages of Peter for nine or ten years after he came of age. The plaintiffs’ connsel objected to this opinion, and thepoint was noted by the court.</p> <p>The following paper was offered by the plaintiffs:</p> <p>Margaret Eckert, by her guardian ] Jacob Mase, jr. Polly Eckert, J by her guardian, Michael Gar- i man and. Louisa Eckert, by her guardian George Mase. vs. George Eckert, George Boyer and Samuel Fisher.</p> <p>In the circuit court of Lebanon county, of March Term, 1830, No. 1. Ejectment.</p> <p>We the guardians above named, do hereby consent, and for our wards, the plaintiffs, do hereby agree, that if the Jury now trying the above cause, shall find a verdict for the plaintiff, that the final judgment rendered upon the verdict, shall be with a stay of execution thereon, until the first day of July next, and that in the interval, the executors of Philip Eckert shall settle and liquidate the share of Peter Eckert, out of his father Philip Eckert’s estate, under the last will of the said Philip, and if such share shall not amount to the sum at which the land and premises were put to Peler Eckert, by his father, that then in that case, the said guardians shall before the first day of July next, pay to the executors of Philip Eckert, the balance of the purchase money of the said land, and that if the executors shall not settle and liquidate the claims of Peter Eckart, under the will of his father, and receive from the guardians the balance due for the land given to Peter if any such balance shall be found to be due, that then in that case execution shall issue upon the judgment, on,the first day of July next, and theplaintiff be put in possession of the land and premises.</p> <p>Given under our hands and seals, this 16th day of March, A. D. 1S32.</p> <p>JACOB MASE Jr. [seal.] ' GEORGE MASE, Lseal. ] GEORGE FISHER, ? r , WM. NORRIS, 5 L,J</p> <p>Attorneji-s for the plaintiff and all the guardians.</p> <p>HEADS OE THE CHARGE 0/ THE COURT.</p> <p>Much is to be laid out of View, jfcaxes, assessments, of George, and Peter, the personal estate, arid the house, in part at least, and whether plaintiffs, will get more or less by the will.</p> <p>The questions are</p> <p>1. Did the old man give the land to Peter?</p> <p>2. Did he agree to sell it to him?</p> <p>S. Did he at one time make a will by wjrich he devised it to Peter, and did he always allude to this when he spoke of this land and Peter? ' •</p> <p>The court read all the evidence of a gift,principally C. Br icJcer’s and thatof Bucher, Stager and Hoffman. As to the sale I can find no evidence of it. Improvements, without an agreement to sell is nothing. As to buildings,as evidence of agiftorsale they are equivocal, and must be alter the agreement. Were they in consequence of personal property and use of land, oras his own? There was a settlement. Brick-er proves it. About what did they settle; not for the the land, for the old man refused to take money for that, and said that nothing would be due till after his death for that. This settlement is not produced. Notice was given to produce it. If you believe that plaintiffs have it, (and they were called on, and refused to swear they have it not,) and they do not produce it, you may take it, that if produced it would prove against them. If you believe they have it not, lay it out of the questrom.. As_to the possession, he was put on as a son, left there as a son, to whom it was willed — as to the will, the court read all the evidence on the subject This is a most important matter as to its general influence. It tends to prevent a man from acts of kindness to his children; to set children in opposition to their parents; to introduce perjury; to make a man give to one child what he never intended, and rob the rest of his children without his knowledge, and against his will.</p> <p>When you have made a will you say you have given your place to your son; but you do not tell how much he is to pay to his brothers and sisters, and he proves your expressions, and takes it for nothing. There is no'contraet or promise made to Peter. No body ever heard the old man and Peter ever speak together about it. All is talk and loose talk with hirelings at their work, or strangers by accident. Not one old farmer neighbor ever heard of it. Philip’s wife never heard how Peter was there. No man can tell what, when or where this bargain was made. If the old man gave it for nothing — or if he agreed to sell and convey, and Peter has paid for it — if it ever was intended, or understood that the old man was to give a deed, it is one thing and the cases road apply. I can find no evidence of such agreement — if you can you will do so. If it was only a promise to make a will, or a statement that he had made one, the cases have no bearing, for a promise to make a will is not a will, and cannot carry land. If he made a will he could change it. The law is so — it must be so, and the plaintiffs have no pretence to this land.</p> <p>You can all make wills and change them when you please — if not it were better to deprive you of the power at once. ■</p> <p>As to the tender, this land was taken from the plaintiffs by a decision of the court. It is not the law, that if a purchaser is evicted for non payment of money, that he can recover without tendering thc'money due. If then there was a contract to sell, the plaintiffs cannot recover until they tender the money due and bring it into court. If there be a parole contract, there can be no recovery without a tender, and if a will was promised, I have said that this will would not enable the plaintiffs to recover.</p> <p>The only ground of recovery is that it was a gift or a sale, and all the money paid. I have said I see no evidence of either, and without you find that it was a gift to Peter for nothing; or unless you disbelieve all the evidence about Peter having to pay twenty-five hundred pounds, the plaintiffs cannot recover, and your verdict should be for the defendants.</p> <p>The gentlemen admit it was no gift. We do not want execution, said Mr. Norris, until we pay the twenty-five hundred pounds and the guardians can raise or borrow the money. The paper filed does not alter the case. Instead of settling a cause it is calculated to raise as many disputes and law suitsas will waste on.o or two shares of this estate. But it makes an end of all claim as a gift. You may, however, find it Was a gift, if there is evidence of it. If there is no evidence, you cannot say there was a gift.</p> <p>The plaintiffs filed the following reasons for an appeal:</p> <p>1. That the court erred in admitting in evidence the will of Philip Eckert, deceased.</p> <p>2. The court erred in admitting the evidence of George Bcckly, Respecting the stock and farming utensils which Peter received from his father in the spring of eighteen hundred and twenty, when he moved on the land in dispute.</p> <p>3. That the court erred in admitting in evidence any acts of Philip Eckert,after the summer of eighteen hundred and twenty-two, tending to prove that the land in dispute was his and not his son’s.</p> <p>4. That the court erred in refusing to require the defendants to Reduce to writing the testimony they proposed to give by the witness Lydia Eckert, the widow of Philip Eckert, and the mother of Peter the son.</p> <p>5. The court erred in refusing to admit the evidence of dldam Stager, tending to prove that Peter worked for his father many years after he became of age, and the evidence of the value of hi3 wages for each year — the court erred in rejecting this evidence because it was to repel the evidence of the defendants, tending- to prove that the father had in the spring of eighteen hundred and twenty, given Peter all his stock, farming utensils, &c.</p> <p>6. That the court erred in their charge to the jury, in all the matters of law arising from the testimony in the cause.</p> <p>7. That the court erred in charging the jury that there was no evidence of a gift by Philip to his son of the land in dispute, and if there was the proposition filed on the trial by the guardians of the plaintiffs, entirely destroys all claim of right to the land on the part of the plaintiffs.</p> <p>8. That the court erred in charging the jury, that it might be found that the improvements made by Peter on the land were paid for out of the rents of the land when there was not a spark of evidence that Peter was ever considered by hisfather as a tenant in any manner whatsoever: and this was told to the jury when there was the positive evidence of more than three witnesses that the father had given Peter the land; and that he had given it to him out and out, when there was the positive evidence that Peter had expended his own money and labor in building and improving the farm, and not a human being had said that the buildings and improve?ments were to be paid for out of the rents and profits of the land.</p> <p>9. That the court erred in charging the jury that the father always said he intended to give the land to Peter by his will, and to give it in no other way: when there was the express and positive evidence of Ghritian Bricker, Jldam Stager, and other witnesses that Philip Eckert had at various times, and not in the roads, said in the most solemn manner, he had given the land to his son Peter, that he had made it so that no man could take it from him, that he had put it to Peter at twenty-five hundred pounds. Peter to be allowed five hundred pounds out of this sum if he did not get five hundred pounds from the Union Canal Company for damages, done to Peter’s land.</p> <p>10. That the court erred in charging the jury that if a father puts a son on a tract of land telling him that he will give it to him by his will, and in consequence of his gift and delivery of possession, the eon makes valuable improvements on the faith of this gift and delivery of possession, that this gift and possession and improvc-i ment give to the sonno title to the land by thelaws of Pennsylvania.</p> <p>11. Thatthe court erred in charging the jury, that a delivery of possession of land to a son, the father saying that he will give it to him by will, give no title to the son to continue on the land; and on the faith of the father’s promise, if he erect valuable improvements, continuing on the land as the owner of it, paying the taxes aud exercising all acts of ownership, gives the son no title to the land, and that after the death of the son, the father may' by a new \vill give the land away from the widow and children of the son.</p> <p>12. Thatthe court erred in charging the jury that there was no, evidence of a sale of the land by Philip to his son Peter., because there is no witness who testifies that the words “bargain, salé or contract,” were ever used by the father and son in relation to the land, when there is express evidence that the father did say that his son Peter was to have the land at twenty-five hundred or two thousand pounds, and this sum to be paid at the father’s death.</p> <p>13. That the court erred in charging the jury, that the evidence of the gift, and of the sale and of the possession of the land, delivered to Peter, and the improvements made by him on the land, by expending his money and labour, were not in law any bar to his father’s making a new will, and his giving the land away from the widow and children of Peter the son.</p> <p>14. That the court erred in charging the jury, that the plaintiffs could not recover in this suit without taking away from Philip Eckert,the right of every freeman, (so valuable,) to malee his will,, and dispose of his estate at his will and pleasure.</p> <p>15. That the court erred, in charging the jury, that the paper filed did not alter the case, that instead of settling a cause, it is calculated to raise as many disputes and law suits as will waste one or two shares of this estate, this part of the charge being totally without any evidence to support it — for the evidence necessary to efk feet a settlement of Philip Eckert’s estate, was not and could not be before the court in the trial of this cause.</p> <p>16. That the charge of the court to the jury upon the testimony and facts in the cause was in á way to take the decision of the faets from the jury.</p> <p>17. That the court charged the jury that a certain receipt in the possession of the plaintiffs, and not produced by them was against them, when the plaintiffs were the guardians, and t ohn Mace one of the Administrators of Peter Eckert, deceased, was in the court and not examined touching the said receipt: the receijrt it was alleged was given by Philip Eckert to his son Peter in the life time of both.</p> <p>18. That the court erred in charging the jury, that much of the evidence in the cause was to be laid out of view. Such as taxes, assessments, of George and Peter, personal estate, &c. or whether the plaintiffs will get more or less by the will, &c. as it is believed that in all contracts for the sale of property, by parol, all the circumstances in evidence must be taken together, to enable a jury to infer from them a contract, and this particularly, when the transaction is between father and son.</p> <p>19. The judge told the jury as to a sale he could find no evidence of it. In this it is believed there is error,as the word angeschlagen in the German language, imports a contract. They should therefore have been told that if it had this import they might infer a contract from it, and all the other facts and circumstances in evidence in the cause.</p> <p>20. In speaking of the improvements made by the son, the court leaves it to the jury to infer, that they were made out of the personal property given by the father to the son: such as horses and other stock, wagons, ploughs, harrows, &c. Prout the testimony, and out of the rents of the land or use of it. In this it is believed the judge erred, as there was no evidence that the stock was given for that purpose — nor could it be out of the rents, as the proof was that the stone house and other buildings in evidence, were commenced and completed in the spring of eighteen hundred and twenty-two, two years after Peter went into possession.</p> <p>21. The judge told the jury, there is no contract or promise made to Peter. No body ever heard the old man and Peter ever speak together about it. All is talk and loose talk with hirelings at their work, or strangers by accident. Not one old farmer neighbor ever heard of it. His wife never.heard how Peter was there. No man can tell what or when or where this bargain was made. In this it is believed there is error; for if a contract can be inferred from the conduct of both parties, and from the acts of the vendee, such as building expensive houses, &c. &e. which would not otherwise have been erected, &c. otherwise than in pursuance of the contract, all the facts and circumstances in the evidence ought to have been submitted to the jury, with directions that from them they might infer a contract, particularly so, as the terms of the contract were fixed by the old man, both as to thejufice and time of payment, by all his respectable old neighbors and farmers who immediately join his land.</p> <p>22. That from all the facts and acts done of both the contracting parties as given in evidence, the jury ought to have been informed that the verdict should be for the plaintiffs.</p> <p>23. That the verdict of the jury is contrary to the evidence in the cause and against the law of the case. There ought] therefore, to be a new trial.</p> <p>reviewed the evidence, and contended that this case could not be distinguished from Syler v. Eckhart, 1 Bin. 378. It was the case of a gift by a father to his son accompanied by possession, and valuable improvements.</p> <p>There was no distinction between a'gift by parol, and a sale by parol. The estate was given to Peter upon specific terms, and the father told his neighbours all around, that he had .given the place to Peter. He spoke in the past tense and not in the future, of what he had done, not what he would do. Nor is there any distinction between a promise by a father to his son,- to give him a tract of land by his will and possession taken, and improvements made upon it, on the faith of such a promise; and the case of a parol sale or gift, possession and improvements. In either case a title would be conferred, clear of the statute of frauds and perjuries. They took these positions.</p> <p>1. That the evidence proved a gift or sale to Peter & George, respectively.</p> <p>2. That after Peter was put in possession, by his father, and had made valuable improvements, the father was bound.</p> <p>3. And that to take the land from Peter’s wife, and children would be a fraud, and could not be sanctioned by the statute of frauds and perjuries.</p> <p>Part performance takes the case out of the statute, because it would produce fraud to allow that the parol contract should not prevail, after such performance on the part of the grantee or vendee.</p> <p>Such part performance, must be something done, as owner, which the party would not have done, except he considered himself as such, and which would not have been done but on account of an agreement making him the owner. 2 Brown, Ch. Rep. 561. 3 Jlildns, 4. Earl of Elsworth’s case, 2 Strange, 783. Id. 149. Niven v. Belknap, 2 John. Rep. 5.73. Parkhurst v. Vansortland, 14' John. Rep. 15, 31. Ebert v. Wood, 1 Bin. 316. Pre. in Chan. 560. Roberts on Frauds §• Purjuries (New York edition, 1807; 129, 131, 134, 135, 139, 140. Syler v. Eckhart,\ Bin. 378. They contended that the case of Syler v. Eckhart, which a parol gift was established, was not so strong as the present case.</p> <p>Possession taken is a strong circumstance to take a case out of the statute.' Jones v. Peterman, 8 Serg. <£• Raiole, 543. Renick v. Kern, 14 Serg. 8¡' Raiole, 267. Here the evidence was of a gift of the entire estate, and irrevocable, and possession taken, and valuable improvements made on the faith of such gift. Philip sometimes named his will, but this was a mere form of expression, the substance was that he gave it to him “outand out.” It would be to produce a fraud to permit the property now to be taken from his family.</p> <p>They argued to shew that the court had withdrawn the facts from the jury; and that evidence of the will of Philip and of the personal property which Peter got from his father ought not to have been received in evidence. It was calculated to mislead the jury. The question was whether there was a gift or not, and no. act of the grantor subsequent to the alleged gift and in conflict with it as his will was, should have been received. But after evidence had been received of the personal property which Peter got from his father, it was competent to repel its effect; by proving his services after he came of age.</p> <p>The court were mistaken in charging the jury that the plaintiff should have tendered the amount which Peter was to pay on the land. If it were an advancement to Peter, he was not bound to pay until the estate of Philip was settled.</p> <p>The court erred in charging the jury as to the non-production of an alleged receipt from'Philip to Peter. Notice to produce such a paper had been served on the guardians, by whom the plaintiffs sued, but if such a paper existed, the administrator had the custody of it, and the .defendants should have called them.</p> <p>It is not denied that if a parol contract for the transfer of lands is made, and that contract is so far executed, that it would be inequitable that it should be set aside, such contract will prevail. But it must be a clear case, and clearly made out. 3 Yeates, 177.</p> <p>So far from having made out a clear case, the counsel for the plaintiffs do not know whether to call it a gift, a sale, or advancement. There was no contract, but the case was simply of a father who had declared his intention to give the property to his son by his will, which certainly could not bind him.</p> <p>The judge fairly submitted to the jury the question as to the existence of a gift or contract, and the jury have negatived all idea of any such thing. He expresses a strong opinion on this subject to be sure, but this he had a right to do, and it is supported by the evidence.</p> <p>The possession taken by Peter was not in pursuance of any contract, and was perfectly consistent with the relation of father and son which subsisted between him and Philip, independent of a contract, and was like that which his brother George had had of this same property, which it was not pretended could confer upon him any claim. When he did intend to part with a proportion of his estate, he made a deed for it to George.</p> <p>To make improvements of any avail in taking a parol contract out of the statute, proof must be given that the contract was first made. It will not do to prove that the contract was made after the improvements. The improvements too were made out of the funds of the father. There was evidence that a settlement had taken place between them, and the receipt which was given upon that settlement was withheld.</p> <p>If that receipt was evidence connected with the title to the land, the guardians were the persons ip whose possession it should have been, and not the administrators.’</p> <p>The court were clearly right in receiving and rejecting the evidence noted. ,</p>

<p>IN ERROR.</p> <p>Error to tbe court of Common Pleas of York County, where it was a case stated in tbe nature of a special verdict, in which Jacob Jacobs the defendant, was plaintiff, and the plaintiffs in error, defendants. The facts agreed on were that one George-Bitner, at January sessions, 1832, was indicted in the court of quarter sessions of York county, for selling unwholsome provisions, and acquitted by the petit jury, who did not determine whether the county, the prosecutor or defendant should pay the costs of prosecution, their verdict being silent on that subject. The plaintiff was entitled to costs .in the case, and the question submitted was, whether the county was liable to pay the costs of prosecution. The court of Common Pleas gave judgment for the plaintiff to which the defendants brought this writ of error.</p> <p>referred to the act of 1791, 3 Smith, 44, 281. 4 Smith, 205. 2 Strange, 1105, 3 Burr. 12S7. ilgncw v. The Commissioners, 12 Serg. liaiole, 94. Irwin v. The Commissioners, 1 Serg. fy Iiawle, 505. The Commonwealth v. The Commissioners of Philadelphia, 4 Serg. $• Pawle, 541.</p>

<p>IN ERROR.</p> <p>Error to. the District Court of York county.</p> <p>This was- a case stated in nature of a special verdict,by which the only question presented was whether a judicial sale of land, mortgaged to the commonwealth, for the purchase money, made upon another lien, divested the mortgage, and was entitled to be paid out of the proceeds of such sale.</p>

<p>Where hpon the facts, as given in evidence, the plaintiffs might recover, it is error in the court to charge the jury; “If the law is as laid down by the court, the plain tiff lias failed in making- out his case, and is not entitled to recover.’.’</p>

<p>An execution, issued upon an absolute judgment, taken to indemnify the plaintiff, asdic surety of the defendant, for a debt which is not paid by the surety, at the lime execution is issued, is neither erroneous, nor irregular,* nor is it fraudulent , by tlie statute of the 13th Elizabeth, in consequence of having so issued before tne actual payment of the debt, for which it was given as an indemnity. It is a measure to secure him by means intended to produce payment of the debt out of the cilccls of the principal by whom it is due.</p>

in error. Error to the Court of Common Pleas of Yorle county. This was a case stated in nature of a special verdict, in which the following facts were agreed on: Andrew Lau made, and published his will and died.

in error. This was a. writ of error, to the judgment of the District Court of York county, in favor of the defendant upon the following case sta~. ted, in nature of a special verdict. On the first of August, eighteen hundred and twenty-four, Elizabeth Williams, gave a note to F. M. Wadsward and Thomas Kelly, for three hundred dollars, for services to be performed in defending an action of ejectment.

<p>Á justice of the peace has no jurisdiction of a contract concerning the really, where the title to lands and tenements may come in question.</p>

IN ERROR. Error to the District Court of York county. The plaintiffs in error who were plaintiffs below, and trustees of Mam Rutter, under a domestic attachment, brought this suit against William Spangler, sheriff of York county, to recover a surplus, arising from the sale of the personal property of the said Rutter, after satisfying an execution in his hands, upon which he had sold the said property, and which property was attached in his hands, subject to such execution.

IN ERROR. Error to the Common Pleas of Berks county. It was an action of debt, by the defendant in error, the Farmers’ Bank of ■Reading, against James Morgan, David Morgan and Jacob R. Bright, the plaintiffs in error, in which the plaintiff filed the following statement, upon the sufficiency ol which the question'was made here after judgment for the plaintiffbelow. “The above stated action is founded on a promissory note, dated the 7th of September, 1829, drawn by the…

<p>IN ERROR.</p> <p>Error to the district court of York County. John Bucher the defendant in error brought an action of ejectment against John Sennett, for a mill and three acres of land', which he alleged, he had leased to him for one year, which had expired: and gave the following evidence by Joseph Bucher the plaintiff’s nepfiew.</p> <p>“1 was present in March 1830, -when Bucher and Sennett- made their bargain. The bargain was that Sennett was to have the mill, and the house in which the miller lived for one year, to commence on the 1st of April, 1830, at a rent of one hundred dollars — Sennett to keep up all the repairs at his expense, and to gravel the dam, and Bucher to find all timber for the repairs.' I made a memorandum of this; but Sennett left the house before I had finished the writing. This writing was never .signed. Sennett took possession of the mill; and is there still. I do not' know that Sennett saw or read the writing which I had made.</p> <p>The plaintiff then rested.</p> <p>The defendant proved by Jacob Kirk, the subscribing witness, the execution of a lease of the premises in controversy by John Bucher to Jacob Noss for one year from the first day of April 1831, and offered the same in evidence to wit: lease dated the 17th of Dec. 1830, by which Bucher demises the premises to Noss for one yearfrom the 1st of April, 1831, at which time possession will be given to Noss for one hundred and fifty dollars per year, payable quarterly.”</p> <p>This evidence was objected to by the plaintiff, and rejected by the court, and an exception taken by the defendant.</p> <p>The defendant then offered to prove, that the witness of the plaintiff, Joseph Bucher, inconversations respecting said lease, declared repeatedly, that it was a lease for three years and that the plaintiff had also declared that it was for a period of three years. And also to prove that the mill and premises were in bad condition, that for a single year they would not have been worth a rent of fifty dollars, that the defendant made valuable and permanent repairs, at great expense upon the premises, under the eye and with the knowledge and consent of the plaintiff, and that for a lease of three years, the premises might have been worth about 100 dollars per year, That while these improvements were making Bucher was present and said that Sennett should have the property for three years.” This evidence was objected to, and the court rejected the testimony offered, that for a single year the premises would not have been worth a rent of fifty dollars, and that for a lease of three years, they might have been worth about one hundred dollars per year, and received the residue of the testimony offered: to which the defendant excepted, and the court sealed a bill.</p> <p>The defendant then gave in evidence various declarations of the plaintiff going to shew that the lease was for three years and the plaintiff gave testimony to rebut this.</p> <p>The jury found a verdict for the plaintiff: and érror was now assigned in the rejection of the evidence contained in the two bills of exception sealed by the court.</p>

in error. Error to the' Court of Common Pleas of York, county, to a judgment rendered in that court, in favor of the defendants in error, who were plaintiffs below, against the plaintiffs in error, who were defendants below, upon the following case: An action of debt was brought on a bail-bond to April term, 1821.

IN ERROR. Error to the district court for the city and county of Lancaster. This was an action of indebitatus assumpsit for money had and received, brought by Philip Martzell against Christian Stauffer, to recover from the defendant a sum of money, which he bad received for the plaintiff, as a trustee, appointed underthe will of Wendal Martzell, deceased, which so far ,as it related te this case was as follows: “Item.

IN ERROR. Error to the court of Common Pleas of Lancaster county. Held: that after judgment, against principal and surety,there is an end of their relation,it is then too late to en-quire into this antecedent relation, this is merged in the judgment. They referred also to Sterling v. Marietta 8?

IN ERROR. Error to the court of Common Pleas of Berks county. Suit was brought by Creamer the defendant in error, against Moore the plaintiff in error, for a debt before a justice of the peace and judgment obtained by him on the 31st day of December, 1830, for seventy four dollars; and on the same day the defendant entered bail, and appealed.

<p>It is not necessary that a judgment should be revived in order to maintain its lien on •money in the sheriff’s hands.</p>

<p>Writ o,f error to the Special Court of Centre county.</p> <p>This was, an action of covenant, by James McFarlane against Samuel Patton^ upon a general warranty, contained in a deed of conveyance of a tract of land by Patton to, McFarlane, and the breach of the covenant laid in the plaintiff’s declaration was, that the purchase money due to the Commonwealth had not been paid, and was an incumbrance upon the land, which McFarlane was obliged to pay, and did pay, to the amount of two hundred and thirty-thr.ee dollars and thirty cents, in order to obtain a patent</p> <p>The defence was, that inasmuch as the plaintiff had not averred in his declaration, nor proved on the trial, an eviction from the land conveyed, he could not maintain this action of covenant upon the general warranty contained in the deed. The court below was.. of opinion, that the plaintiff was entitled to recover the amount of the money paid to the Commonwealth with its interest, anci so instructed the jury, who fouftd a verdict accordingly^ The question was argued in this court, at June term, 1831, by Potter for plaintiff in error, and Blanchard and Hale for defendant in error, and held under advisement until this term, when, by direction of the court, it was re-argued by</p> <p>In order to establish the position, that an eviction was essential to the maintenance of an action upon a covenant of warranty, cited Co. Lilt. 365. a. % Black. Com. 300, as to, the nature of the warranty: and as Jo the origin of an express warranty, 2 Cain’s. Rep. 194. 2 Institutes, 275. 2 Black. Com. 301. That the remedies to be pursued by the tenant in case of a breach of warranty, in former times, \yere first by voucher; and in explanation of this remedy, was cited Qo.. Litt. 101-6. Second, by writ of warrantia chartae; and that an eviction was essential to the complainants right to recover by either of these remedies. Fitz. N. B. 310, 3151 3lJJack. Com. 1S4. 11 Serg.fyRawle, 115. By these authorities it manifestly ' appears, that nothing but an eviction, is a breach of the covenant of general warranty. And the same doctrine is recognized by all respectable Jirnerican authority, and it is cxpressly’safd, that a lawful eviction must be averred and proved, Hent'v. 'Welch, '! Johns. Rep. 259. Vanderkan v. Vanderkan, 11 Johns. Rep. 122. Kelloggs. Wilcoks, 2 Johns. Rep.4. Clarke v.' MeJLnulty, % Serg. 4’ Raiole, 370.</p> <p>fn this case, then, the incumbrance in favor of the Commonwealth, which the plaintiff volunteered to. pay, is the alleged breach of a covenant real, which runs with the land, and which in law is a covenant of title. In order to come to the conclusion, that the plaintiff can recover in this action, we must forget the nature of the covenant upon which it is founded. ¿íIf the facts are true,5' says the court below, “the covenant’was broken.” As well might they have said, that the plaintiff should recover, without any covenant in the deed at all. If the grantee of land can maintain covenant on the warranty, because of thie' payment of an incumbrance by him, it will be necessary to' decide, that he may maintain an other action on the same warranty, and as often as ineumbrances may be paid by him, and at last he may be evicted; and then an other action on the same warranty will be essential to the administration of justice: this cannot be. Co. Litt. 393.,</p> <p>When Patton conweyed to McFarl.ane and covenanted to war_ r^nt and defend the title, he had it not; the legal title was in the Commonwealth; whose officers, by the act of 22d March, 1820. 7-Smith, 281, were directed to proceed and recover the purchase money.- This proceeding could not have been against Patton, but necessarily must have been in rem, whereby the land in possession of McFarlane would be the object of recovery, and no defence which he could have made, nor any act of his, short of the payment of the money, would have shielded the land from sale. Poes the law then require, that McFarlane should fold his arms, and see his land, of great value, sold, in order to enable him to maintain an action against the warrantor. It is not necessary that the grantee should be evicted by action, in order to enable him to sue oh his warranty: if there is really a better title than that conveyed to him, he may give up the possession to the holder of such better title, and'maintain covenant on the warranty. What reason is there, then, why he should resist a just claim due to the Commonwealth, secured by the'possession of the legal title? Why do so vain a thing, the only consequences of which must be, additional expense, vexation and perhaps loss to all parties interested? Cited Helfenstein v. Wagoner, 13 Serg. fy Raiole, 208. Funk v. Voneida, 11 Serg. S¡~ Raiole, 112. McKennon v. Doughman, Í Penn. Rep. 417. Hamilton v. Cutís, 4 Mass. 349. Sprague v. Baker, 17 Mass. 586. 3 Saund. 181. b. note 10. Foster v. Pearson, 4 Bun fy'Fast 617.</p>

APPEAL. Appeal from the Circuit Court of Lycoming county, held by Justice Kennedy. This ejectment was brought in the name of Jesse Hunt against Robert Craivford.

<p>IN ERROR.</p> <p>Error to the Common Pleas of Huntingdon county.</p> <p>This was an action of ejectment in which Alexander McCormick was plaintiff, and William Martin and William McMutrie, were defendants in the court below. The principal questions in the cause were, whether the land in dispute was subject to gctual settlement in 1827, heing tffen vacant? Was it within the lines of the defendant’s survey? If not, bad it been appropriated by those under whom they claimed, previously to 1827? The parol evidence, which was voluminous, need not be here stated,, as. the opinion of the court helow, will sufficiently explain^ the questions decided. The court thus charged the jury.</p> <p>“The lineson the ground form the true survey; the notes,returns of surveys, and drafts, are only evidence of the survey. liRced is correct, the survey on the ground of George Allen excluded the land in dispute; yet to give McMutrie his distance, you would have to go to the line run-by Hunter an& Wilson. This principle equally applies to Alexander McCormick’s survey: He had an old and early improvement, on which he took a warrant in 1795, calling for McMiUrie as a boundary. Shortly before the. survey was made on that warrant, Wilson and Hunter., were called by ÍDavid McMutrie and dames McMutrie, and old Alexander. McCormick to ñx the lines of McMutrie’s survey, in the name of George Allen. They did so on the 12th and 13th of November, 1S01. On the 18’th pf December, following, olej Mr. McCormick had his survey made in accordance with the line run By Wilson and Hunter, qpd so returned. This binds him, and. it is idle, oy worse than idle, to say thir.ty years after, this was a mistake. If Wilson is believed, old Alexander McCormick conceded that the southern ling of his survey, was’fhe northern boundary of McMutrie’$ claim. McCormick’s return of survey binds him, and by that title, he cannot go a foot beyond it. Old Mr. Me Cor mick pursued a correct course, to have all his boundaries settled before he had his survey returned, so as to prevent disputes with his neighbours. Boundaries fixed by the parties are entitled to great respect, and should never be departed from, where there is no fraud. Alexander McCormick, the elder, devised his estate to his two sons, Robert and Alexander, (the plaintiffs.) Robert’s part adjoined the land in dispute. Is there any evidence that old Alexander McCormick ever claimed it? The lands of Robert and Alexander McCor.i mick have been sold at Sheriff’s sale, and all their title, to the old tract at least, divested. Now as a plaintiff in ejectment must recover on the strength of his own-title, and not on the weakness of his adversary’s, it is manifest, if tjie law be regarded, the plaintiff can derive no right to recover, froin any improvement or title .of his own, prior to the sheriff’s sale. What title then has the plaintiff shewn? The only title he can recover on, is his attempt to build a house in 1S27. This is the only title he has. ' He did not enter on the ground and .cut the timber. He hauled old logs from below Moor’s mill, and commenced building a house. As soon as he was discovered, and when he got it to the square, the McMutries went and' pulled it down, and hauled his logs away. This then is his title, and his only title; and circumstanced as this case is, the only title he can rely on. To January Term 1829, he brings this ejectment, on this title. The defendants contend that the land in dispute is included in this survey on a warrant to George Allen, and made in 1762, and returned into the Land Office on' the 7th of January, 1763. Every man is bound to take notice of a survey returned. It is constructive notice, and binds equally with actual. We have said, if Reed be correct, the first survey made on. the ground excludes the land in dispute; but thé defendants’counsel contend, that after the line was run along the foot of the Piny Ridge, the survey was extended on paper before return; and to prove this, they rely on the fact, that the lines are too short, that Gardner’s survey, • which they have shown, made'on the same day, calls for Allen; that they always claimed their full distance; that old Alexander McCormick so recognized their survey; and that they have been in possession of the general traet, claiming three hundred acres, and their full distance on the ground. If this land was plotted in by the Deputy Surveyor, and so returned in 3'763, and included in that return, it was not vacant; it was not-.-open to settlement and improvement. But as the Surveyor retained the corners, and those corners are found, it is powerful evidence that-the Surveyor'did not plot in any land, or he would have thrown away his corners and called for posts;, and more especially so, when a line is found'on the ground,running from corner to cornerN</p> <p>“We say, if the lines were extended before return, of which the jury will judge, the plaintiff has no pretence of claim. Butsuppose they were not extended, this case presents other points for serious and deliberate consideration. It manifestly appears from the testimony of Wilson, and from, the warrant and survey made and returned, that old Alexander McCormick, recognized this land as the property of McMutrie; that Robert and Alexander McCormick, the plaintiffs, knew that the McMutries claimed it. Part of it had been sold to William Myton, the deed for that was acknowledged before Alexander Mc Cormick, oh the 18th of August, 181S. As to this part of the property in dispute, Alexander McCormick knew it was sold to Myton, who i.s siqce deceased. If- the plaintiff stood still and did not give notice of his claim, if he had any claim, equity will postpone him. If a man looks on and sees another purchase and pay his money, and does not disclose his claim, he will be postponed. - Myton went into possession under his purchase, and under the old title. You will observe, the land in dispute never was’ claimed by the defendants by improvement,it •was always claimedunder thetitle of 1762,as within their purchase. Some actual possession was taken of it, acts of ownership exercised upon it, such'as a farmer usually in Pennsylvania exercises over, his timber lands. Their houndaiy was fixed by Surveyors on that side thirty years ago; now so far as actual possession has been held for twenty-'one years before this ejectment brought, the title is good; for the law is, that actual occupation, however tortious it might be, however destitute of the color of title, either in law or equity, gives a right to the extent of' the inclosure, against all the wo.rld but the State,- 10 Serg. <§-. Rawle 338. Was-there any vacant land here, vacant in the beginning of April 1827? The defendant had exercised acts of ownership oyer it, and claimed it as within their .ho, undary, and that boundary actually run and marked on the ground for'more than thirty years. The survey of Alexander McCormick, ' sen’r. calls for "adjoining Allen.” There appears no vacancy in.the office of the Deputy Surveyor, or in the Land Office. Suppose then it was not without the surveyed or returned lines of Allen. If the jury should so believe, and also be. of opinion, that it was claimed-under ,the old title of McMutrie, and the usual possession that is exercised over timber land, was it open for settlement?</p> <p>We-.think it .was so,- to a honest bona fide, settler. If it was not within .the lines of Allen's return of survey. But you. will observe •that the plaintiff.did not.clear any land, or cut any timber; he hauled logs from .a distance, an April 1827', and got his, house to the square. He never returned to the land, nor did he bring this ejectment till January Term, 1829. Was this diligence? When a man commences, an improvement, he is bound to use diligence. llera belays by from April, 1827, to November, 1829; in th§ meantime the defendants build a house. True he warned them,and throw that house down; still the jury are to determine did he use diligence. If, then, the jury should be of opinion, that the land was not within defendants’ survey as returned, and that he did use due diligence, they may find such part for the plaintiff as was not in. adverse possession, twenty-one years before ejectment brought; and which McCormick did not claim when it was sold to an innocent purchaser, without discovering his title. But if within defendants’ survey, or if he did not use diligence, then they should find for defendants.”</p> <p>The jury found a verdict for the plaintiff, upon which judgment was entered. To reverse which, the writ of error was sued out, and the following errors assigned.</p> <p>1. The court erred in instructing the jury, that the land in controversy,under the evidénce, was open to settlement, if they should be of opinion that it was not within the surveyed or returned line? of George Mien.</p> <p>2. In submitting it as a question for the decision of the jury, whether due diligence had been used by the plaintiff below, in the prosecution of his pretended settlement, when in truth there was no evidence of diligence.</p> <p>3. In not instructing the jury, as matter of law, that the plaintiff could not support his ejectment under the evidence given in the cause.</p>

<p>Error to Huntingdon county.</p> <p>In 1819 the United States obtained a judgment against John Patton and William Simpson his surety: — in Í822 a fi.fa. was issued upon it, which was not given to the sheriff, by order of the plaintiff’s attorney: there was no further proceeding until 1826, when a scire facias was issued against both defendants, for whom there was an appearance and plea of payment. Subsequently, in the same year, Patton confessed judgment; and issue was joined on the plea of payment, with Simpson. Upon the trial of this issue, the defendant gave in evidence the record of several judgments that had been obtained against Patton, between the time of tl)e rendition qf the judgment of the United States, and its revival in 1S26.; and which became thereby a lien upon his real estate, tq the exclusion of the United States’ judgment. There were also given in evidence t]ie following letters of S. Plesenlon, “Fifth Auditor and acting Commissioner of the Revenue,” tp James M’Dowell, Esq. the Attorney of the United Stales, having the charge of this judgment.</p> <p>Treasury Department, Fifth Auditor's Office,</p> <p>March 31, 1825.</p> <p>Sis. — I have received ypur letter pf the f 4th instant. As the indulgence already extended to Mr. Patton has been very liberal, J cannot consent tp any change in the terms stipulated in my letter of the 22nd ultimo, fqr the liquidation of the debt dup by him to the United States, viz. tha\ on the first pf November next, he shall pay three hundred dollars, with the interest that will be due on his bond qp to that date, four hundred eighteen dpllars, eighty-eight cents, and one hundred sixty-nine dollars thirty-four cents, for the addition of ten per cent, accruing on the amount of duties not bondpd, making together the sum of eight hundred and eighty eight-dollars, twenty-seven cents to b,e deposited, that day by him, and anqually thereafter an the first day of November, pgy three hundred dollars, with the interest due up tp that date.</p> <p>Treasury Department,</p> <p>Fifth Auditor's Office, February 17, 1826.</p> <p>Sir, — I have just received a joint letter of this date from the Hon. John Findlay and John Brown, requesting, for certain con-, siderations therein stated, a fqrther indulgence until the first of June next, to pay the first instalment of the debt due by him to the U. States, which vfas to have, been paid on the first of November, last. You will please to give this indulgence to Mr. Patton, and inform him it is given, in the full confidence, that he will at the expiration of the time be prompt in making the payment.</p> <p>The admission of these letters in evidence was objected to, on the ground that neither the official character, nor hand-writing of S. Plesenton was. proved-• A witness was then sworn, who testified that he had done business for the United States, and had corresponded with S. Plesenton the Fifth Auditor of the Treasury, had remitted money to him and received his receipts; had never seen him writing his name, but had no doubt but that the signatures were his. The court over-ruled the objections to the evidence, and sealed s, bill of exceptions at the request of the plaintiff. The negligence of the plaintiff, in suffering tfielien pf these judgments to be lost as against the estate of Patton the principal, and the indulgence given to him till he became insolvent, were relied upon by the defendant, in support of the issue, on his part. In answer to several points put by plaintiff’s counsel, the court instructed the jury in substance, that if they believed that Simpson was prejudiced by the negligence of the plaintiff and indulgence given to Patton, they should find for the defendant; and the jury did so find.</p> <p>Contended; that hand-writing can be proved only by one who has seen the person writing. Vickray v. S. Kelly, 14 Serg. fy Raiole, 372. Bank v. Jacobs, 1 Penn. Rep. 181.</p> <p>That the United Slates is not subject to any rule of law which is based upon the negligence of a party, and that no negligence or expiration of lien can be applied to their prejudice:- That there Was nothing in the letters of S. Plesenton Which would bind the United States, so as its prevent them from proceeding upon their judgment at any time, when they might have been requested so to’do by Simpson the surety. Mere indulgence to the principal will not discharge a surety, unless it be in disobedience of an express request of the surety. On this point were cited Cope v. Smith, S Serg. 4* Raiole, 112. Gardner v. Berree, 15 Serg. fy Rawle, SO. Commonwealth v. Shryock, ibid. 70.</p> <p>The letters of S. Plesenton changed the nature of the contract; and if so, the court will not stop to enquire, whether the surety Was injured thereby or not. Bogart v. Nevins, 6 Serg. <§• Rawle, 371. Baldwin v. King, 5 Johns. Chan. 561. Barry v. Man-dell, 10 Johns. Rep. 595. Whart. Dig. 713, No. 25, Title Surety. Milliken v. Brown, 1 Rawle, 398. If the faith of the United States, as pledged by the letters given in evidence, was kept, the surety was ipso facto discharged. -There shall be no negotiation between the Creditor and the principal, which results in the injury of the surety, unless he be^discharged. Commissioners v. Ross, 3 Bin. 523. Commonwealth v. Shryock, 15 Serg. fy Rawle, 71 People v. Janson, 7 John Rep. 340.</p>

<p>A defendant against whom an aw'ard of arbitrators had been made, applied to the Prothonotary, on the twentieth day, after night, and after the office was shut, to enter an appeal; the Prothonotary having then refused to g-o to his office, at the next court, a motion was made for an order, that an appeal might be then entered nuncprotunc, which the court refused: held tobe erroneous.</p>

This was a feigned issue in which Thomas Todd, administrator of Thomas Beale, deceased, was plaintiff; and George M’ Cxdloch was defendant, directed by the Court of Common Pleas, tp try the right to the proceeds of the sale of the real estate’ of Robert Burns, which was so,Id by the sheriff pf Mifflin co.unty.

<p>Appeal from the Circuit Court of Mifflin county held by Justice Rogers.</p> <p>In tjxis case William, Shaw was. plaintiff, and The Lewistoym <§“ Kishacoquillas Turnpike Road Company was defendant. The facts were the samp as those giyen in evidence, on a former- trial, and which are fully stated in the former report o,f the same case in 2 Penn. Rep. 454. The plaintiff’s right to recover was founded upon the following points, both of which his Honor qnswered in the negative:</p> <p>1. The court are requested, to, charge the jury, that the failure of making the side roads, does npt prevent the plqintifffrom maintaining this suit, but whatevep may be the costs' of- making the side roads is a proper subject for the, jury to defalk in damages.</p> <p>2. That the testimony of Mr. McClay as to, the conduct of-himself and managers, relative to the side roads, is q matter of fact to be left to the jury, to say whether this is not a waiver of that part of the contract, or an implied agreement that whatever the cost of the side roads would be, should be defalked in the final settlement of the accounts.</p>

Writ of Error to the Common Pleas of Centre county. This action was brought by William Lighty for the use of George B. Engles against Anthony Shorb. The plaintiff, to support his action, gave in evidence the following draft: Penn’a. Furnace, July 8, 1830. Barnet and Shorb, Pittsburg, Please to pay Wm. Lighty, seven hundred and fifty-eight dollars, on the first of August, for a tract of land purchased from him. @758. A. Shorb. On the 21 July, Í830, Ji.

This cause, an action of dower, in which Betty Evans, .widow of Thomas Evans, was plaintiff below, and Philip Benner, defendant, was submitted by the counsel, Potter, for plaintiff in er-. ror, and Petrikin for defendant in error, without argument. The facts are fully stated by Justice Kennedy, who. delivered the opin-. ion of the court.

<p>A conveyance of land described as a tract surveyed to a particular person, passes all within the bounds of the survey; such a description is as operative to define the . subject of the grant, as if the courses and distances were included in the deed; and' such deed will vest a good title to the land within the said survey, although the grantor may have had a better title to the land than that described, of which he was ignorant at the time.</p> <p>The common ignorance of both the grantor and grantee of the true boundaries, would perhaps, control an erroneous description of the subject-matter of the grant, founded on the fact of interference.</p>

<p>Writ of error to Huntingdon county.</p> <p>' This is an action of covenant, in which J.acob dike was plaintiff in the court below, and brought hy him before a Justice, from whose judgment there was an appeal, to recover certain rents, charged upon four lots of ground, numbers 76, 77, 94 an<j 95, situate in a town of Huntingdon county, which had bean laid out by him. These lots were sold and conveyed originally to different persons, by deeds mutually executed by ¿Ikc, ¿nd the severalgrantees; in each of which the* habendum was to the grantee, “his heirs and assigns, yielding and paying therefor, and thereunto, the said Jacob dike, his heirs, "executors, administrators or. assigns, the first day of November,' and every year, the annual rent or sum of-one Spanish milled dollar or the value thereof, in,lawful money of Pennsylvania;, the first payment to be made off the first day of November, A. D. 1796, and so on yearly, and'every year forever, thereafter: provided, always, that if-the annual rent, or sum of one Spanish milled dollar, or the value thereof, shall be behind or unpaid, in part or in whole, for the space of five days, after the days oif payment, on which' the same ought to have been paid as aforesaid, that then it shall and may be láwful for the said Jacob dike, his heirs, executors, administrators or assigns, his or their agent, or attorney to recover the 'rent unpaid as aforesaid, by distress of the goods and chattels, and in case they be not sufficient, then of the lot of him, the said W. D. (grantee,) his heirs, executors, administrators or assignees, rendering the overplus, if any, thereof, after costs being first paid, unto him the said TV. D. his heirs, executors, administrators or assigns.” These lots passed through several hands from-the respective grantees, until the.titles'of them all came to be regularly vested in the defendant below, Samuel Royer, as assignee of the same, by deeds of conveyance duly executed. Upon a special verdict in the court below, setting forth the original deeds between Jacob Ake, and his respective imme-* diate grantees, as also the subsequent deeds of assignment and transfer down -to Samuel Royer,,and the several sums of rent which were due and in arear, upon each lot, all mf which had become payable after the assignment to Samuel Royer; and likewise that upon the lots, numbers 76 and 77, there were goods and chattels'at all times sufficient to have discharged the rents thereof, by distress of the same goods; and farther, that no demand was ever made of the rents from Samuel Royer or his tenant, until the bringing of this suit. The court belowr rendered a judgment in favor of Jacob Ake the plaintiff, for the aggregate sum of the rents, due upon all the lots.. x ■</p> <p>A Justice of the Peace had not jurisdiction of the subject-matter of this action. The inconvenience which would result,- from giving jurisdiction to a Justice of -the subject of rent-charge, an incumbrance upon the fee, created by a covenant running with land, is a strong reason to show, that the Legislature did .not intend to give it. The 22d section of,the act of 20th March, 1810, did not design to embrace any other case of rent, but that which'arose on a term of years. And it is equally clear that the 6th section of the act of22d of March, 1814, did not design to submit-to Justices of the Peace, questions arising out of privity of estate. 1 Bin. 220.</p> <p>The action cahnot be maintained without a previous demand. Buskyn v. Edmond, Coke EHz. 5S5. If the action were upon express covenant by the defendant, no demand would be necessary, but it is otherwise where' there is but an implied liability. Roll. Ab. 459. Letter L, Nos. 42.45. Com. Dig. 220. . Title, Rent, LetterD, Ños. 3,4. 1 Rato le, 161. -</p> <p>The remedy . stipulated' by the parties, in the covenant itself, must be pursued-. It is a personal covenant of the alienee, and does not pass to the assignee; for if it did, the plaintiff had a right' of action against all. or any of those who once owned the lots: if an ownership of the lots created a personal liability, the owner could not divest hjmself of such liability by a sale of them. The assignee is not liable. 4 Yeates, 387. All remedies but that prescribed, are excluded by the terms of the covenant. 2 Fern. 382. If the rent due amounted to more than the value of the lot, which is a probable case, would the law endure a recovery of it from the assignee. The remedies may be cumulative as against the alienee, but not against the assignee. An action of covenant will not lie upon a privity of estate, though debt may. 1 Dal. 326. 1 Wash. Ct. Rep. 375.</p> <p>It was also argued, that the plaintiff could not recover the rents of the different lots in the same action, inasmuch as the titles'were vested in the defendant at different times, by different conveyances from different persons..</p> <p>The acts of 1810 and 1814, do, by express terms, give jurisdiction to a Justice of the Peace, in all cases of rents not excéeding in amount one hundred dollars. The lots conveyed have nothing to do with the subject-matter of the action, they are but a medium by which the defendant becomes personally liable. No previous demand is necessary in any case, in order to the maintenance of a common law remedy. The deed is in consideration of the covenants herein after mentioned, to be paid, done and performed by the grantee, his heirs, administrators and assigns.- It is not an implied, but an express covenant, binding upon the assignee who accepts the estate upon the stipulated condition. There are no terms of exclusion, as to the remedy, contained in the covenant; all the remedies are, therefore, concurrent; and either may be pursued, by the grantor. 1 Rawle, 125. That covenant was a proper remedy against the assignee, were cited, 1. Chit. PLAll-274, 3 Berg, fy Rawle, 502. 2 Penn. Prac. 28. 2 Rawle, 159. 1 Rawle, 161. 2 Penn. Rep. 23. 5 Coke Rep. 16. 1 Saund. 241. St at. Hen. 8. Rob. Dig. 227.</p> <p>The court declined to hear any further argument on the point, that the different rents could not be recovered in the same action.</p>

This was an action of replevin, in which Frederick Kessler was plaintiff, and James M’Conahy was defendant. M’Conahy had leased a house to John Boombaugh, and the rent being due, M’Conahy distrained a stove on the premises, for which Kessler took out the replevin; upon the trial the plaintiff' offered Boombaugh the tenantas a witness, to prove that he had, previously to the distress, sold the stove to Kessler, and that when distrained it belonged to Kessler.

IN ERROR. Error to the Common Pleas of Mifflin County. Gallaher and L ’ebo made a bet of one hundred dollars upon a bdrse:race, to be run' at a future time, and each deposited fifty dollars inthe hand- of William, McAllister, which fié, who did not appear upon the ground with his horse at the appointed timé, should forfeit to the' other. Gallaher did not appear, arid McAllister gave up the forfeit to Lebo, upon being indemnified'.

<p>Error to the Common Pleas of Bradford county.</p> <p>In this cáse, in which Lawrence Wiggins was plaintiff, ancl Gustavús JP. Holden defendant, the transcript of- the Justice, before whom the case originated, exhibited the cause of action tó be “debt or demand not exceeding one hundred dollars.5* The parties appeared, and plaintiff demanded of defendant ninety-eight dollars, due on book account'. The defendant offered to off-set a claim ágainst the plaintiff on'book account of more than, one hundred dollars; after hearing 'the parties, and their proofs, the defendant’s claim exceeding the jurisdiction of the’Justice of-the Peace, judg-’ ment was rendered for the plaintiff on his claim,'for'thirty-six dollars and twenty-seven cents, with costs, &e.” The defendant apr pealed to the Common Pleas; and after the first term, the plaintiff,, without filing any declaration Or statement, other than that contained on the transcript of the Justice, entered a rule of reference, and' had arbitrators appointed, who subsequently mejTánd heard.both pariies and made an award in favor of the plaintiff, for fifty-six dollars and eighty-four cents, with costs. To this report the arbitrators appended this note: “the defendant’s claim exceeding the plaintiff’s three hundred and thirty-two dollars, was excluded, as out of our jurisdiction.” Upon this award judgment was entered, to reverse which this writ of error was sued out, ^.nd the following errors assigned: 1 ‘ ; •</p> <p>1. No declaration or statement was filed when'the rule of reference was entered. 2. The transcript of the Justice does not set out any cause of action. 3. The Justice and arbitrators refused to allow any part of defendant’s set-off, because the whole together amounted to more than one hundred dollars.</p> <p>Argued by the plaintiff in error in person; and by</p>

The plaintiff in error was the plaintiff below, and sued out this writ of error to reverse the decision of the court of Common Pleas, setting aside a Bend. Expos, on the ground, that no inquisition had been previously held upon the fi. fa. upon which the land was levied. It appeared to the court, that there was a mortgage upon the land, to secure the payment of certain bonds at different periods, all of which were due.

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action of ejectment for a tract of land, in which the heirs of Elizabeth Evans were plaintiffs, and Hugh Bellas Esq. was defendant in the court below. The facts of the case are so fully stated in the opinion of his Honor, who delivered that of the court, that they need not be repeated.</p>

<p>Error to Union County.</p> <p>This was an issue directed by the Court of Common Pleas, in which Henry W. Snyder was plaintiff, and Daniel Kunkleman, John Kitnkleman, John Snyder, Christian Baldy, and Christian Houtz, were defendants, to try whether the plaintiff was entitled to the money raised from the sale of the personal property of Daniel Kunkleman; and which of the above named defendants are entitled to the residue, if any.</p> <p>The facts were in substance these; Daniel Kunkleman was the tenant (AHenry W. Snyder. Kunkleman was indebted to Snyder for rent and grain sold to him, in a large sum of money; for which he gave his note, dated the 80th April, 1829, payable 1st May. Judgment was signed the 4th of May, 1829. The 2nd May, 1829, Kunkleman applied to Mr. Sterrett, for his professional services, complained of the conduct of Snyder, and said that he had other creditors, whom he liked better, and wished to know ho,w he could fix it, that they would bo paid. He was advised to give judgments, which his counsel thought were preferable to an assignment. This course, after some consultation, was adopted. Mr. Slerrett then ascertained the sum due each of the creditors, in some cases, from papers in the possession of the defendant; and in others from his recollection. He took the judgment notes to the office, had them entered, issued executions, and forthwith, had them placed in the hands of the sheriff. It is the impression of Mr: Sterrett, that he urged the Sheriff to proceed without delay. The creditors were not present when the arrangement was made, but were much pleased when afterwards told of it, at the next court. They gave him no directions about the sale; but some of them were anxious to have their money soon. Mr. Sterrett believed that at theMay court, they asked, if the grain should be sold immediately: they thought the grain would sell better about harvest. Mr. Sterrett said, they would not be injured by a short delay: that it was sufficient, if the sheriff had the money at the September Term. After the executions wrere in the hands of the sheriff, Snyder also issued an execution, which came to his hands, the 7th May, 1829, and on which he was required to proceed. The sheriff, who was examined as a witness, says, that he received the first four executions from Mr. Sterrett, on the 2nd May, 1829. That he ordered him to make a levy, which he did, on the 5th May, on four horses, with geers, eight acres of wheat in the ground, on H. Snyder’s land, a four horse wagon and bed, two distillery kettles, and all the apparatus, one stove with pipes, one corner.cup-board, and six chairs, one looking glass, two saddles, and one large iron kettle. After the levy was made, he told the defendant that if he would give him a bond, with sufficient security, he vfmuld let the property be a while. He thought, as he said, ¿he plaintiffs would bail him. And accordingly, the creditors, viz. John Kunkleman, John Snyder, and Christian Houtz, entered in to a bond to the sheriff, with Daniel Kunkleman, the fifteenth May, conditioned to deliver the property on demand. After he was thus secured, the. sheriff thought he need not sell, as he was himself safe, having the plaintiffs for bail, although repeatedly urg-' ed by Snyder to sell. The Sheriff received Snyder’s fi, fa. the the 7th May, on which he made a levy, subject to prior executions, Snyder wished to have the property sold immediately. The sheriff said the other creditors had given him a bond, and that he thought the grain would sell better towards harvest. Snyder appeared dissatisfied, and wished an immediate: sale. The sheriff told him he was secured, and that he did not care much what he said, the other creditors did not wish him to sell. This was before the May Court.</p> <p>At the May Term, the 18th of May, Snyder having obtained a rule to shew cause why the.judgments should not be opened, the parties made the following agreement:</p> <p>‘ ‘Judgments and executions to remain as they are, and the amount not to be contested either by JohnKunkleman, Christian Houtz, Christian Baldy,John Snyder, or H. TV. Snyder. Daniel Kunkle man to have the right of contesting II. TV. Snyder’s judgment, and shewing that it was given for more than was due if he sees proper. Defendant’s property to be sold forthwith, and the monejr brought into .Court, where each plaintiff may claim the money, and the respective rights of each shall be determined by due course of law, under the direction of the court. May 25, 1829.”</p> <p>After the agreement, Snyder repeatedly called on the sheriff to proceed; but without success. He wrote to him to the same effect, and referred to the agreement, which required an immediate sale. The sheriff then wrote to the other creditors, who told him not to proceed immediately. The sheriff said the grain would bring a better price about harvest; but that he would do as they pleased, either sell or stay the proceedings, as they desired. lie said he would have sold, if they had told him lo do so. He thought, they told him they would let him know when they wanted the property sold: When he told them that Snyder was urging him, they replied, he had no right to the property; that they had secured him and would keep him clear. The property was sold' the 3d July, 1829, for five hundred and forty-four dollars and thirty-cents, which was brought into court for distribution. Snyder issued a ca. sa. against Kunkleman, who, on the 19th December, 1S29, was discharged.</p> <p>The jury under the direction of the Court found a verdict for the defendants; and the plaintiff having excepted to the opinion of the Court, now assigned the same for error.</p> <p>Bellas and Lashells contended, that the conduct of the defendants was a legal fraud, such as wilhpostpone their right to the proceeds of the sale; and cited 1 Rawle 366. 8 Serg. fy Rawle, 444. 11 Johns. Rep. 110. 3 Wash. C. C. R. 60. 17 Johns.. Rep. 274. 8 Johns. Rep. 20. 1 Salk. 320. 12 Serg. Rawle, 41. 13 Serg. Sf Rawle, 345. 8 Serg. fy Rawle, 510. 14 Serg. 8¡- Rawle, 214. 17 Serg. <f* Rawle, 251. 1 Penn. Rep. 57. 2 Rawle, 282.</p> <p>Contended, that whether there was fraud or not, was a matter of fact; and was properly submitted to the jury and passed upon by them in favour of the defendants.</p>

<p>A defendant cannot set-off a debt due to any one but himself; set-off can, b,e made , only by and between the parties. '</p>

Appeal frqm the Circuit Gqurt of Ly corning county, held by Justice Kennedy. This was an actiqn on the case by Edward and John Bartholomew., against Charles Gudykunst, for falsely representing the power and capacity of a stream of water, forge and grist-mill, rented by the defendant to the plaintiffs.

' This action was brought by'Charles Coryell against Matthias J Jipp, to recover one hundred and fifty dollars which was deposited in the hands of o.ipp■, by the plaintiff, as a wager upon a horse-race, made between Coryell and Streetor. The race was run and the wager lost by Coryell, who immediately gave notice to ¿Lpp not to give up the money.

<p>Rent reserved upon a lease for a year, or a term of years, is incident to, and accompanies the reversion; unless they be separated by an express reservation. Thu? the sale and conveyance'of a farm, when in the possession of a tenant, who held the same upon the terms of yeilding to the landlord a certain proportion of the grain raised thereon, was held to vest in the' purchaser the right to receive that proportion of the grain which was growing on the land, at the time of the conveyance td him, which the landlord would have been entitled to, if he had not conveyed.</p>

<p>AVrjt of error to the Quarter Sessi-ons'of Lycoming county.</p> <p>This was an indictment against GRAFFINS and RATHNELL,. Street Commissioners, for neglecting to repair a certain street in the borough- of Williamsport. The defendants were convicted; and two errors were assigned in the court to the judgment. First,_ that the indictment was defective in this, that it did not conclude Wo the common nuisance of the citizens of the Commonwealth of Pennsylvania.” Secqnd, that no indictment .could be sustained against the defendants. .</p> <p>As to the first point cited, 5 Bac. Ab. 152. T1 Serg. §- Rawle, 345. 14 Serg. <§• Rawle, 447. But by the act of incorporation, the Street Commissioners are appointed by the Town Council and have neither funds, powers or duties but what are given to them by the ordinances of the corporation. It is a sufficient answer to the bill of indictment to say, that the defendants were not vested with power to repair- the street, for neglecting which they were indicted. ■ "</p> <p>Argued, that an officer is always indictable for an omission to perform a public duty.. The defendants, ex officio, had the poweruv^rthe street.heingout qfrepaircalled into requisition their duty: and. that they had not funds, was a matter of fact to be urged in their defence before the jury. — As to the form of the indictment, he cited Chit. Crim. Law, Í0.- Reed’s Dig. 442.</p>

This was an action of ejectment by William Feather and Peter Strohoeeker against Leah Strohoeeker.

This was an action brought against the Commonwealth by Job Shepard, in pursuance of the provisions of the “Act for the purpose of adjusting… Held: in all the transactions of the company; and if either of them be minded to sell his share before the said division shall take effect, he shall notify his intention, with the lowest price he will take, to the company, and allow them twenty days to consider thereof, and if they refuse the same, then, and not before, he shall be at…

<p>A Justice of the Peace, who has entered two judgments in the same suit, is not entitled to two trial fees, if on the first day of entering judgment the defendant was not present, and the plaintiff was willing to continue the case: the utmost limit to which his right could extend would be to demand compensation for investigating the plaintiff’s claim and entering judgment by default, for which the fee bill allows but twelve and a half cents.</p> <p>Quere, if a justice who enters a judgment by default which is opened fora rehearing and defence made, and a new judgment entered, is not entitled to two judgment fees.</p> <p>Where a justice charges illegal fees which are endorsed on the execution and collected by the constable, the justice is liable for the penalty although they are not paid over to him.</p> <p>*The act of 28th March, 1814, notwithstanding it inflicts a penalty for taking illegal fees, is a remedial act, and as such should receive a liberal construction.</p> <p>It is not necessary for the justice to make a regular tender of amends, if the other party, by his conduct, dispense with it, by a previous refusal to accept.</p>

This cause was argued by Rathbone Rnd Rarsans fo,r the plaintiff in error. • - The facts of the case are fully detailed in the opinion of th«> court which was delivered by

A suit was brought upon an administration bond in the name of the Commonwealth against Thomas Wilson and Wray Maize, surviving obligors in a bond with John didams and Jas. Barbour, and judgment obtained for the penalty.

<p>In an action on the case against a devisee, to recover a legacy charged on land, in which the issue is upon the plea of payment, it would be error to reject the evidence of the devise, because the action could not be maintained, for want of proper parties.</p> <p>«My son William shall have the tract of land he now lives on, provided he pays to my other «bree children j£300,s &c. is not such a devise as creates a conditional estate in William; but the land is thereby made the fund for the payment of the legacy, and the personal estate is exempted.</p> <p>An action cannot he maintained by the legatee against the devisee of the land alone, to recover his legacy; the executor must be joined.</p>