Volume 3 — Rawle's Pennsylvania Reports

Judgment was entered in this court of March Term, 1818, against the defendant, and on 2d November, 1820, a scire facias post annum et diem was issued upon it, which, on the 6th November, 1820, was returned “ made known.” Nothing further was done until 1st January, 1827, when by order in writing of the plaintiff’s attorney, judgment was entered for want of an appearance to the scire facias.

<p>Where a paper contains the substance of a will, with the usual act of execution subjoined, though without the names of subscribing witnesses, the fact that it has been thus found in the decedent’s possession, ought, without actual publication, to be taken for prima facie evidence of its having been adopted as a testamentary act.</p> <p>Where, on the other hand, it is destitute of every formal act of authentication, the presumption ought to be adverse, in the absence of proof of actual publication, or any other act of recognition equally satisfactory.</p> <p>Where a paper was headed, “ My last will and testament, &c.” the face of which was blotted and blurred, and indicated the first essay of a mind untrained to method and arrangement, in which whole sentences were obliterated, and entire passages cut off, crossed out, and repeated with material variations, in addition to which the decedent began anew on a fresh leaf, to make, not a fair copy of what preceded it, but an entirely new draft varying from it in essential particulars, and this was left unfinished, it was held that it contained no sufficient intrinsic evidence of a testamentary intention, to entitle it to be admitted to probate as a will.</p> <p>Though a rough draft may be a testament, where the intent is clearly apparent, yet it is otherwise if it appear that the decedent viewed it as a mere outline to be filled up and completed by more detailed provisions; or that having viewed it at one time as complete, he had cancelled it, and used it as a memorandum for a new disposition.</p>

<p>In all sales of goods there is an implied warranty, that the article delivered shall correspond in specie with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon himself the risk of determining not only the quality of the article, but the land he purchased.</p> <p>Therefore if the defendant sell, and the plaintiff purchase an article as blue paint, and it is so described in the bill of parcels, this amounts to a warranty, that the article delivered, shall be blue paint, and not a different article.</p> <p>In order to sustain an action on an implied warranty in a contract for the sale of goods, it is not necessary that the plaintiff should, before bringing suit, redeliver or tender the-the article to the defendant.</p>

<p>If the real and personal estate of a decedent are together sufficient to pay his debts, and leave a surplus to be distributed among his widow and children, the administrator is . guilty of no misconduct in supplying out of the personal estate, the urgent wants of the widow and children, though that estate alone is not sufficient for the payment of the debts.</p> <p>Where the estate of an intestate is considerably in debt, and debts to a large amount are due to it, which cannot be immediately collected, and the administrator does not appear to have retained money in Iris hands an unreasonable length of time, he is not personally chargeable with interest paid by him, on debts due by the estate.</p> <p>Where the administrator of an embarrassed but solvent estate, in the course of collecting doubtful debts by suit, is obliged to bid at sheriff’s sales under judgments obtained by him, for lands of debtors who have nothing else to levy upon, in order to prevent a great sacrifice of the property, and it appears from all the circumstances attending the transaction, that he purchased for the benefit of the family, and was considered by them as having done so, and they not only made no objection to what he had done, but when he offered either to keep the land and account for the price of it, or hold it as their trustee, they returned no answer to his proposal, they cannot afterwards treat him as a purchaser on his own account, and make him account for the price, provided he has in making the purchase, acted with good faith and as a prudent man would have done in his own case. ,</p> <p>And if the administrator has, under an order of the Orphan’s court, sold a portion of the real estate of the intestate, partly on credit, more advantageously than it could have been sold for cash, and afterwards being pressed for money for the purposes of the estate, he disposes of some of the securities he has taken for the price, at a discount, he is not personally chargeable with the discount, if under all the circumstances, he promoted the interest of the estate by doing so.</p> <p>Counsel fees, and the expenses of the administrator in prosecuting suits, &c. for which no vouchers were produced, allowed under all the circumstances of the case.</p>

<p>Testator devised as follows, viz. “ Igive to my son C. K. my messuage and plantation, situate, &c. which I had from my father, with the buildings, &e. with the rents, issues, . to him during his natural life, and if he shall leave lawful issue, then to them, their heirs and assigns forever; but for want of such lawful issue, then it shall return to my son J. IC; and if he should leave no lawful issue after his decease, then to my next lawful heir, and to their heirs and assigns forever.”</p> <p>At the date of the will, the testator had another child, a daughter. C. IC, the son, at the time the will was made had no issue, nor had he any subsequently until after the death of the testator.</p> <p>Held, that C. IC took on estate tail.</p>

<p>Testator, being the .owner, in whole, or in part, of four contiguous tracts of land, which were in part bounded by a water course, devised one of them, situate on-the west side of the water course, to his son B. under whom the plaintiff derived title. To his son H. the defendant, he devised his “ undivided moiety of certain four acres, called ‘ the saw mill land,’ together with all the rights and privileges thereunto appertaining.” This undivided moiety of the four acre tract had come to the testator with a privilege appertaining to it, of swelling the water back to the southern boundary of the land devised to his son B. By the same will, the testator gave to his son H., the defendant, the privilege of erecting a dam, at any point between the land devised to his son B., (the plaintiff’s land,) and the land on the eastern side of the creek, devised to another son I., with a right to dig a race through i.’s land. The defendant erected a dam across the creek within the limits mentioned in the last devise; and afterwards erected another dam, at a considerable distance below, for the use of “ the saw mill land,” where there had many years before been a dam erected, but the pse of which had been abandoned, at least thirty-eight years. • • *</p> <p>Held, that the wholc'of the property in the water course under the testator’s control, passed by these devises to the defendant: that having been used by him in part, by the erec tion of the first dam, no presumption could arise from lapse of time, of any release or extinguishmentof his right to any other part of it, and that consequently he had a right to erect the second dam. .</p>

<p>The water power to which a riparian owner is entitled, consists of the difference of level between the surface where the stream in its natural state first touches his land, and the surface where it leaves it. It may be occupied in whole, in part, or not at all, without endangering the right, or restricting the mode of its enjoyment, unless where there has been an actual adverse occupancy for a period commensurate with the statute of limitations.</p> <p>A right by prior appropriation, has regard to the quantum of water drawn from a stream, common to both parties, and not to the quantum of fall.</p> <p>An award of referees is to be set aside only for plain error in fact or law, and not for suspicion of error.</p>

<p>It is not necessary that the warrant of a county Treasurer for the commitment of a delinquent collector of taxes, should show upon its face, that such previous proceedings were had under the act by virtue of which it was issued, as authorised the Treasurer to issue it. Nor is it necessary that it should appear, that at'the time and place mentioned in the warrant issued by the commissioners of the county to the colléctor, at which he was required to pay over the taxes collected by him to the Treasurer, the board of commissioners were in session, ready to make “ abatement or allowance for mistakes” in the duplicate, or for “ indigent persons” therein named and assessed, who were unable to pay, &c.</p> <p>It is not necessary to the validity of such a warrant, that it should run in the name of “ The Commonwealth of Pennsylvania.” It may issue in the name of the county Treasurer.</p>

<p>in error.</p> <p>Error to the Court of Common Pleas of the city and county of Philadelphia.</p> <p>On the trial of this cause, the plaintiff below’, William S. Warder, offered evidence to prove, that it is the custom of trade in Philadelphia, in respect to the purchase and sale of cotton, that the vendor shall answer to the vendee for any latent defect in the article sold, which shall upon examination be discovered, without either warranty or fraud on the part of the vendor. He also offered evidenpe to prove such custom, where the damage arises from' fraud in packing, on the part of the exporter of the article, unknown to the vendor.</p> <p>He further offered evidence to prove, that by the custom of trade in Philadelphia, the vendor of certain other merchandise is liable to the vendee for any latent defect in the article sold, without war? ranty or fraud on the part of the vendor. '</p> <p>To the admission of all this evidence, the counsel for the defendants below objected, but a majority of the court, composed of the two associates, (Hallowell, President, not concurring with them,) admitted the evidence, and at the request of the counsel of the defendants below, sealed a bill of exceptions.</p> <p>After the evidence above stated had been admitted, and it had been proved that the defendants below, had sold to the plaintiff below, fifty bales of cotton, of which a portion was damaged, the counsel for the defendants requested the court to instruct the jury as follows :</p> <p>First. That the defendants, as vendors of merchandise within the city of Philadelphia, were not by law liable to the plaintiff as vendee, for any latent defect or damage in the article sold, unless there be a warranty by, or fraud on the part of said vendors.</p> <p>Second. That a custom among traders in the city of Philadelphia, that the vendor of merchandise shall be liable to the vendee for any latent defect or damage in the article sold, without warranty or fraud on the part of such vendor, is contrary to law, and not binding on the defendants.</p> <p>Third. That a custom among traders, engaged in buying and selling cotton within the city of Philadelphia, that the vendor shall be liable to the vendee for any latent defect or damage in the cotton sold, without warranty, or fraud on the part of the vendor, is contrary to law, and not binding on the defendants.</p> <p>Fourth. That a custom among traders in the city Philadelphia, that the vendor of cotton shall be liable for fraud in the packing, with which the said vendor had no privity, connexion or knowledge, and in the absence of any warranty or fraud by such vendor, is not sufficient in law to charge the loss in consequence of such fraud on the vendor, nor is such custom binding on the defendants.</p> <p>Fifth. That a custom, to be good and sufficient in law', must have been immemorial and uniform, and must be certain, compulsory and reasonable, and is not binding on the defendants, unless possessing all these qualities.</p> <p>The majority of the court, composed of the two associates, refused to charge the jury upon any of the said points, according to the request of the counsel for the defendants, but delivered their opinion as follows:</p> <p>First. That the evidence proved a custom, by which the plaintiff could recover, if he had brought himself within it, without warranty or fraud on the part of the defendants.</p> <p>Second. That whether he had brought himself within it, W'as a question of fact for the jury, depending, among other things, on the question whether the damage had been discovered, and the defendants notified of it in a reasonable time.</p> <p>Third. That if the plaintiff knew the defendants were consignees or agents in the sale made by them to him, and if they had before the discovery of damage, and demand made, settled with and remitted the proceeds to their principal, the defendants were not responsible.</p> <p>To this opinion also, the defendents counsel excepted.</p> <p>contended that no evidence can be legally admitted to establish a custom, in a particular portion of the state, and not extending to the state at large. It has been repeatedly decided in this country as well as in England prior to the Revolution, that such a custom cannot be proved. Edie v. The East India Company, 2 Burr. 1222. Stoever v. Whitman, 6 Binn. 416. Thompson v. Ashton, 14 Johns. 316. Dunhower v. Bull, 16 Johns. 375. Seizas v. Wood, 2 Caines, 54. Perry v. Aaron, 1 Johns. 132. Jackson v. Wetherill, 7 Serg. 4" Rawle, 480. In Gordon v. Little, 8 Serg. 4" Rawle, 533, it is true, evidence was held to be admissible, tending to show the custom with respect to the liability of common carriers on the western waters of this state, but the opinion of the court dn this point was not unanimous, and Chief Justice Tilghmax, who was one of the majority, said, that a party who sets up a custom, must satisfy the the court that the case is not embraced by the general rules of law. There was no general rule of law which extended to carriers on the western waters, and therefore evidence of custom was received. The same observation may be made with respect to the way going crop, as to which, a custom was allowed to be proved, in Stidlz v. Dickey, 5 Binn. 285. The distinction is. between cases in which there is, and those in which there is not a general rule of law. With respect to the case before the court, the general rule of law is well established, and cannot be controverted by evidence of custom.</p> <p>But supposing evidence ,to be admissible to prove a custom of trade,. relating to the article which was the subject-matter of the contract,the admission of evidence to prove a custom as respects merchandise of a different kind was clearly wrong.</p> <p>The court did not hear M‘lhaine, who was of counsel for the defendant in error. ,</p>

<p>A sale by the sheriff of a part of mortgaged premises, under a younger judgment against one claiming title under the mortgagor, exonerates the land sold from the lien of the mortgage, though the mortgage is not yet due, and no default has been made.</p> <p>In such case, the part of the property not sold by the sheriff remains proportion of the debt due on the mortgage, as should be rated to its comparative value with the whole property mortgaged.</p>

<p>Though the seller is answerable to the buyer that the article shall be in specie the thing for which it was sold, yet if there bo only a partial adulteration which does not destroy the distinctive character of the thing, the buyer is bound by the bargain. And in doubtful cases the test seems to be, that the article shall be merchantable under the denomination affixed to it by the seller.</p>

In this cause, a verdict was, by agreement of the parties, rendered for the plaintiffs, for the sum of one hundred thousand dollars, subject to the opinion of the court, whether upon the evidence, the plaintiffs were entitled to recover a residuary bequest contained in the will of James Wills, deceased.

<p>An action cannot be maintained against a corporation, by one, who, by their appointment, has acted as a judge and inspector of a corporation election, to recover indemnity fbr the amount of damages and costs, previously recovered against him by a corpora-tor, for having fraudulently and maliciously refused his vote when offered; whether a promise of indemnity be considered as having been made before the election, or after it has taken place, and the plaintiff been sued or threatened with a suit by the aggrieved corporator.</p> <p>And tíie record of the suit brought against the plaintiff, by such corporator, is conclusive evidence, that the vote was fraudulently and maliciously rejected when offered.</p>

APPEAL. Appeal from the Circuit Court of Bucks county. Held: &c. on the sixth of August, 1800, made return, finding that the premises could not be parted and divided, and valuing and appraising the same at and for the sum of nine hundred and eighty-two pounds one shilling and four pence, subject to the dower of the said Sarah Pidcock, widow of the intestate, which the inquest valued and…

<p>On the return of a writ of certiorari to the court of Quarter Sessions of Northampton county, it appeared that a petition was presented to that court, at its session in November, 1828, by divers inhabitants of the borough of Easton, setting forth that they “ laboured under great inconvenience for want of a road or highway, to lead from the north termination of Front or Water street, in the said borough, by the nearest and best route to intersect the road leading from the said borough, along the Delaware, to John Sandt’s tavern.” Viewers were accordingly appointed, who reported in favor of the road. On the application of adverse petitioners, reviewers were appointed, who reported against the road. Their report was made to the August sessions, 1829, and at the same sessions, a petition was presented, praying for a re-review, which was granted. At the Novemher sessions, 1829, the re-reviewers made a report in favor of the road.</p> <p>To this report, four exceptions were filed in the court of Quarter Sessions, of which it is now necessary to notice only the last, which was as follows, viz.</p> <p>“ The court of Quarter Sessions had no jurisdiction in the matter, the road laid out being entirely within the limits of the borough of Easton.'’</p> <p>On the 26th of January, 1830, the court of Quarter Sessions quashed the proceedings, for- the reason assigned in this exception, without giving any opinion upon the'other exceptions.</p>

in error. Writ of error to the Court of Common Pleas of Lehigh county. In this action of assumpsit, in which the plaintiff in error, John J. Krause, assignee of John Moll, for the use of the creditors of the said John Moll, was plaintiff below, and the defendants in error, Christian F. Beitel and Frederick JVewhardt, were defendants, a case was stated for the opinion of the court below, which it was agreed should be considered as a special verdict.

APPEAL. Conrad Kreider together with his wife, having on the 7 th ofNovember, 1823, executed a voluntary assignment of his real and personal estate to Owen Rice and Jefferson K. Herbman, for the benefit of his creditors, under certain conditions expressed in the deed, the assignees on the 29th of November, 1828, agreeably to the provisions of the act of the 24th 'of March, 1818, and its supplement, presented to the court of Common Pleas of Northampton county the accounts of…

<p>Burglary may be committed in a house in the city, in which the prosecutor intended to reside on his return from his summer residence in the country, and to which, on going into the country, he had removed his furniture from his former residence in town; though neither the prosecutor nor his family had ever lodged in the house, in which the crime is charged to have been committed, but merely visited it occasionally.</p> <p>an not necessary to charge prisoner with having broken and entered the prosecutor’s house with an intent to commit a felony therein.</p>

<p>In assize of nuisance, a plea in abatement, that, pending the writ, and since the last continuance, the defendant had abated and removed the nuisance complained of, is inadmissible, and may be treated by the plaintiff as a,nullity.</p>

<p>The plaintiffs loaned in Philadelphia to the defendants, seventeen thousand dollars on respondentia, by the ship Juniata, at and from Liverpool to Canton, and thence to Philadelphia, No respondentia bond was executed at the time, as the shipment was to be made at Liverpool, and it was uncertain whether it would be in specie or goods, but it was to be given subsequently, and in the mean-time, an agreement was made by the parties, that bills oflading outward at Liverpool for seventeen thousand dollars, if specie should be shipped, or for twenty thousand dollars, value of goods at par, if specie should not be shipped; (“ in which ease the lenders should only be liable to average and entitled to salvage, as if it had been a specie shipment;”) and also, bills of lading of the returns at Canton, should be assigned to the lenders, as collateral security for the bond to be given. The vessel sailed from Liverpool with seven hundred pieces of goods to the value of twenty thousand dollars, but without specie, and she was immediately afterwards stranded and lost; in consequence of which, forty-five of the seven hundred pieces were totally lost, and six hundred and fifty-five saved, hut in a damaged condition. Held, that the plaintiffs were not liable for the damage of .the goods saved, but only for the part totally lost; the meaning of the agreement being, that they should he exempt from damage, as they would have been, if specie had been shipped.</p>

<p>Testator devised to his wife certain real estate, and “ also, all his household goods and fur* niture, moneys, bonds, mortgages, outstanding debts due and owing to him, and all other his personal estate of what nature.or hind soever." He devised to trustees, for the use of his son, certain other real estate, and to the same trustees, for the separate use of his daughter, certain other real estate, declaring in his will that the husband of his daughter, should not, in any event, nor by reason of any cause, ways or means whatsoever, have any right, claim or interest in his estate, in right of his wife or otherwise, nor receive any benefit or advantage therefrom. These devises and bequests disposed of the whole of the estate the testator then possessed. After the execution of his will, he acquired other real estate, and died indebted to various persons, without having republished his will, or made any codicil disposing of the reql estate made after its execution. Held, that the bequest of the testator’s personal estate to his wife, was not specific, and that there was nothing in the will winch showed an ihtention to exemptit from the payment of his debts, and that consequently, it was to be applied to that purpose before the real estate acquired after the execution of the will, could be resorted to.</p>

<p>The original and all the supplementary accounts of an executor constitute parts of one whole, and taken together, contain an exhibit of the proceedings of the executor in relation to the estate ; and although it may sometimes be expedient to file exceptions to the different accounts, as they are from time to time settled, yet it is unnecessary to do so, the whole being open to exceptions, until the final adjustment of the estate.</p> <p>The Orphan’s Court ought, therefore, on the final settlement of the estate, to examine into the subject-matter of the exceptions then filed to the preceding accounts, although the settlement of such accounts may have been duly published, confirmed nisi, and afterwards confirmed absolutely, in consequence of no exceptions having been filed within the time prescribed by the rules of court.</p> <p>It seems, however, that if the parties have been heard in the Orphan’s Court, a re-investigation by that court cannot be required, except, perhaps, on a petition in the nature of a bill of review, which can only be necessary after the final decree.</p> <p>No appeal lies from the decree of the Orphan’s Court to the Supreme Court, except upon the settlement of the final aocount of tire estate, and upon the appeal, the Supreme Court may examine into the exceptions to the original and supplementary, as well as the final account. The appeal brings up the whole case for examination.</p> <p>What is a final decree of the Orphan’s Court,on an administration account.</p> <p>It seems, the Orphan’s Court may make a final decree, so as to discharge the executor, although there may be outstanding debts due to the estate, but this should be done with great caution, and not without express notice at least to the legal representatives.</p> <p>Where a son continues with his father after he has arrived at full age, and is supported by him, without any contract to be paid for his services, but with a view to a provision by will, he cannot, in general, after the death of his father, support a claim against his estate, for a compensation for labour, &c. It must be a strong case to induce the court to listen to such a claim.</p> <p>And where the services were rendered at so distant a period as to be barred by the act of limitations, and a settlement appears to have taken place between the father and son, it is to be presumed, that all accounts between them were settled, and the son cannot afterwards, as his father’s executor, take credit for such claim in his administration account.</p> <p>Still less can he do so, where it appears, that at the settlement, the claim was asserted by the son, and withdrawn on being objected to by the father.</p> <p>Where this court has any doubts as to the facts of a case, coming before it on an appeal from the Orphan’s Court, it will direct an issue to try them; but it will refuse to do so, where the parties have had abundant time to furnish the court with the necessary testimony, and the facts, from what appears to the court, are involved in no doubt.</p> <p>Interest cannot be allowed to an executor on the balance of his administration account, where the effect of it is, to give him compound interest, which cannot be permitted under any circumstances.</p>

<p>A covenant in a deed of partition between A. and B.' that they shall at their equal and joint expense, cause the canal or race through their respective lots from the dam, &c. -to be widened and improved in the manner therein specified, and the race and head gates at all times forever to be kept in order at their equal and joint expense, does not render them jointly liable for work done to the canal, &c. by order of A. alone, and it is error in the court to charge the jury, that the covenant in the deed of partition, and the fact of the work having been done, were some evidence of a joint agreement on the part of A. and B. with the plaintiff to do the work.</p> <p>Nor are the declarations or admissions of A. without any authority being shown from B., to make a contract binding them both jointly, any evidence whatever of a joint contract.</p> <p>Nor are the circumstances of B. having been frequently at the place when the work was done, and having his agents there, while it was going on, and saying nothing to the plaintiff to induce him to believe, that he was to look to A. alone for payment, any evidence of jB.’s liability.</p>

<p>The plaintiff has a right to support his cause of action by proof of the facts stated in the declaration, whether they are sufficient in law to entitle Mm to recover or not; and this can only be prevented by a demurrer which admits the truth of the facts as set forth. If there be a defence, the defendant must avail Mmself of it, when the whole case is before the court and jury, by a direction on the law arising from the facts.</p> <p>This court, however, will not, on a motion for a new trial, reverse the judgment of the Circuit Court, for the rejection of testimony, wMch, if admitted, would not give the plaintiff a cause of action.</p> <p>The erection of any tiling in the upper part of a stream of water, wMch poisons, corrupts, or renders it offensive and unwholesome, is actionable.</p> <p>The erection of a tan-yard comes witMn the operation of this principle, provided it has the effect of corrupting and rendering unwholesome the water in the stream below, so as to be injurious to the other proprietors.</p> <p>The limitation of these principles, is, either where there has been an appropriation for a period of twenty years, which, in law, raises a presumption of right, or it arises from contract.</p> <p>One, who by a lease has a right to so much of the water of a stream, as shall be needful and proper for the supply of a tan-yard, and the working of a bark-mill, and is bound to return all the water which he diverts for such purposes, over and' above the quantity wMch should he necessarily used and consumed in conducting the business, without unnecessary and unavoidable loss, diminution or waste, into the c-reek above a dam situated lower down the stream, has no right to return it polluted by admixture with substances of a poisonous or unwholesome nature, to the injury of the lessor, or those claiming under him.</p> <p>Although what is necessary to the enjoyment of the thing demised, passes with it as an appurtenant, without express words, yet what is merely convenient does not</p> <p>Therefore, a lease of a piece of ground for a tan-yard and bark-mill, with the use of so much of the water of a stream as may be necessary for conducting the business, does not carry with it a right to the lessee, to empty the contents of his tan-yard into the stream, or to dispose of Ms surplus tan on the adjoining land of the lessor.</p>

obtained a rule to show cause why the entry of special bail in this case should not be stricken off. Kittera opposed the rule.

<p>Afi.fa. issued by the consent of the defendant after the expiration of pyeax and a day from the date of the judgment, and levied upon land owned by him when the judgment was entered, and upon which it continued to be a lien from its date until the levy, but which was conveyed by him within the year and a day, is regular, as against his alienee; there being no allegation or pretence by the party complaining, that any defence could have been made, if instead of an execution a sci. fa. had been issued.</p> <p>Such assent need not appear on the record or even be in writing, and it may be proved by the evidence of the defendant himself.</p> <p>As long as the defendant in a judgment is alive, a sci. fa. quare executio non may be served on him alone, without notice to terre-tenants, where there are any. And in the event of the defendant’s death, a sci. fa. is to be served on his executors or administrators.</p> <p>If terre-tenants, whose interests are at stake, know of any defence, the court, upon an application made by them in due time, will permit them to make it.</p> <p>This court cannot, on a writ of error, judge of the regularity of an execution issued in the court below, where the question involves matters of fact, which do not appear on the record.</p>

<p>Although a deed purporting to convey a title to land, cannot he given in evidence without some proof of title in the grantor, yet the rule does not apply in the same extent, to a deed containing merely an executory contract between the parties, for the future procurement and conveyance of a title to land.</p> <p>The plaintiff having given in evidence thirty-seven patents dated the 12th March, 1795, to J. P. for certain lands in the county of N. which were the lands in dispute, and a deed dated the 12th July, 1795, for the same lands from the patentee to J. W. and a deed of previous date, viz. the l7th March, 1795, for the same lands from the said J. W. to the plaintiff, without any evidence to show, that J. W. at that time, had any interest in them or any prospect of acquiring any, and without showing under what arrangement, J. W. obtained the subsequent deed from J. P. the defendant, with a view to show, that J, W. obtained the deed from J. P. in pursuance and fulfilment of articles of agreement, which he had entered into with W. P. and M. W. on the 11th September, 1794, prior to the deed from J. W. to the plaintiff, offered the said articles of agreement in evidence, stating that he should also offer in evidence- bonds and a mortgage given in pursuance of the said articles of agreement: Field,- that the articles of agreement were admissible in evidence to show the origin of J. W.’s connection with these lands; what his interest was before and at the time he conveyed them to the -plaintiff, and the terms and conditions upon which he subsequently obtained the title by conveyance from J.P.</p> <p>A deposition of one, who, when it was taken, was not a party to or interested in the sdit, but afterwards became so, is not admissible in evidence. But where the parties to a suit depending in this court, entered into a written agreement, “ that the evidence which had been taken in the ejectment depending in the county of I. of B. C. v. J. B. and others, and also against C. D. shall be admitted to be read on the trial, saving all legal exceptions, which might have been made in those actions,” it was held, that such deposition was admissible'in evidence, though the action in which it was taken, was not then depending, but had been tried and determined before the date of the agreement ; it appearing, that the suit in which the deposition was taken, was the only ejectment that B. C. had ever brought against 3. B. and others in the county of I. and the deposition offered the only evidence taken in that suit.</p> <p>Deeds, not shown to have any bearing upon the matter in controversy,' are not admissible in evidence.</p> <p>Where the judge, who tried the cause, stated to the jury, that he thought they would agree, that unless those persons who were interested in the land, and sold it to 3. W. consented, and most explicitly, that he should have it clear of all claim on account of the purchase money, it would not be just or equitable, that he should have it so, the charge was held to be right, taken in connection with all the evidence given in the cause.</p>

<p>The estate of a testator is not liable for the funeral expenses of his widow.</p>

<p>An apprentice is not witliin the meaning of the act of the 14th of February, 1729-30, supplementary to the “ Act for the preventing clandestine marriages” which prohibits clergymen and others from joining in marriage “ indented servants” without the consent of their masters or mistresses.</p>

<p>The execution of a disputed specialty is fully proved by the production of the subscribing witnesses, who recognize their signatures, and remember the transaction, though neither remembers any formal delivery, and tho positive evidence of another person present at the time. A failure of memory, on tho part of the subscribers, is sufficient ground for introducing the other testimony.</p> <p>M. a native of P. after an absence of seventeen years in S'. A. returned to the U. S. with no purpose of resuming his foreign residence. He resided with his father; styled himself in an instrument as of P. and made a new contract for another foreign residence in A. for a limited time. Held, that the domicil of origin was revived: and that the new absence for a special and temporary purpose, and without a view of indefinite residence, effected no change.</p> <p>If a foreigner asks for a dividend of a decedent’s estate, he must take it subject to the priorities, established by the law of the forum. Qw. If the assets had been taken away from the foreigner’s own country by an irregular removal ?</p>

having brought suit in this court to July term, 1827, against Gabriel Ticlienor, and declared in assumpsit, the defendant, on the 10th of December, 1831, pleaded in abatement, that before the commencement of this suit, the plaintiff had brought suit against the defendant for the same cause of action in the District Court of the United States, for the Mississippi district.

IN ERROR. Writ of error to the Court of Common Pleas of Philadelphia county. The defendant in error, John Dean, was plaintiff below, and the plaintiff in error, William Lee, was defendant below.

<p>The presentation of a petition to the Orphan’s Court, setting forth, that the petitioner’s father died seized ofthe premise's therein described, leaving a widow and seven children, and praying the court to award an inquest to make partition, &c. does not estop the petitioner from afterwards maintaining an ejectment for the same premises, and proving, that they were the estate of his mother, who was his father’s first wife, and descended to him as her heir, to the exclusion of Ids brothers and sisters, the children of a second wife.</p> <p>A plaintiff, who claims under an equitable title must do equity before he can recover in ejectment.</p> <p>Where, therefore, the defendant has acted with good faith, he is entitled to be re-emburscd the money he has expended in perfecting the title and making improvements, but if he has acted mala fide, and endeavoured to defraud the plaintiff, he is not entitled to the benefit of this principle, or if he bo entitled to any tiling, it is only to the balance, which may appear to be due after deducting the rents, issues and profits during the time he enjoyed the land.</p>

<p>Where, in a voluntary assignment, the benefit of creditors, provision was made for the payment of a note particularly described therein, the court permitted the assignor to be examined to prove, that at the time of the execution of the assignment, there was not in existence such a note as that described, but that there was a note answering the description in every particular-, except that instead of being drawn by the assignor in favour of A. as stated in the assignment, it was drawn by A. in favour of the assignor, and discounted by the present holder for liis accommodation, and that he intended to provide for the payment of that debt.</p>

<p>Whether, where an execution is levied upon ail the goo'ds and chattels of an inn-keeper,, consisting of a variety of household and kitchen .furniture, and, also, of a quantity of" liquors and bar furniture, which are suffered to remain in his possession. between thirteen and fourteen months before any step is taken to effect a sale, it retains its lien,, dubitatur.</p> <p>If a plaintiff, after having levied an execution on personal property, directs the sheriff" “to stay proceedings until further orders’, the levy to remain,” the lien of the execution, is gone, as respects third persons, whether purchasers or execution creditors, if the; object of the arrangement was a security for the debt; and it is of no consequence whether the execution bo returned or not, or whether or not third persons had notice of it.</p>

<p>Parol evidence is admissible to prove, that by the original Contract for the sale of a lot of ground then enclosed by a fence, the whole was intended to be embraced, but that the vendor fraudulently omitted a part of it in the articles of agreement and deed subsequently executed between the parties.</p>

<p>IN ERROR.</p> <p>Error to the District Court for the city and county of Philadelphia.</p> <p>The defendants in error, who were plaintiffs below, brought this action on the case against George Shronk, executor of Godfrey Shronk deceased, in which they filed a declaration containing three counts.</p> <p>The first count was for money had and received by the testator to the use of the plaintiffs below.</p> <p>The second count was upon an account stated between the plaintiffs below and the defendant as executor of Godfrey Shronk, concerning divers sums of money due and owing by the said Godfrey Shronk in his lifetime to the plaintiffs below, upon which account the said Godfrey Shronk was found to have been in arrear to the plaintiffs below in the sum of four hundred and ninety-eight dollars, and seventy-three cents, which the defendant below as executor promised to pay.</p> <p>The third count was as follows, viz: — “ And whereas the said Godfrey Shronk since deceased in his lifetime heretofore, to wit, from the fourteenth day of April in the year of our Lord one thousand eight hundred and twenty-three, to the first day of November in the year of our Lord one thousand eight hundred and twenty-seven, was the supervisor of the public roads and highways of the unincorporated part of Penn Township in the county aforesaid, and had as such received divers large sums of money, to wit, the sum of six hundred' dollars of like lawful money which he the said Godfrey Shronk should have appropriated and expended for and towards the defraying of the expenses incident to the keeping the said public roads and highways in repair: and whereas also afterwards, to wit, on the fourteenth day of March in the year of our Lord one thousand eight hundred and twenty-eight, at an election for choosing a supervisor for the said unincorporated part of the said township, four capable and discreet freeholders or inhabitants were elected, to wit, John F. Warner, George Esher, Robert Watkins and Joseph R. Hopkins, whose duty it was to settle and adjust the accounts of the said Godfrey Shronk deceased, he in his lifetime, to wit, during a part of the preceding year, having served in the office of supervisor of the public roads and highways of the unincorporated part of the said township, and the said George Shronk as executor as aforesaid having produced the accounts of the said Godfrey Shronk for all sums of money by him expended on the highways and of all sums of money by him received, the said freeholders or inhabitants so chosen to settle the accounts aforesaid, did adjust and settle such accounts so produced to them as aforesaid and allowed such charges as they thought reasonable, when there appeared to be due from and remaining in the hands of the said George Shronk as executor as aforesaid the sum of four hundred and ninety-eight dollars, and seventy-three cents, for which sum they, the said freeholders, gave their order in writing signed by them, and directed, the same to be paid to Samuel Deal, the succeeding supervisor of the said unincorporated part of the said township, according to the act of assembly in such case made and provided, and the said George Shronk as executor as aforesaid in consideration thereof afterwards, to wit, ón the first day of June in the year of our Lord one thousand eight hundred and. twenty-eight, at the county aforesaid undertook and then and there faithfully promised the said plaintiff, that he, the said George Shronk as executor as aforesaid, would well and truly pay and satisfy the said plaintiff the said sum of four hundred and ninety-eight dollars, and seventy-three cents, lawful money as aforesaid, when he should be thereunto afterwards required, yet,” &c.</p> <p>The defendant pleaded non assumpsit, payment and set-off; non assumpsit, payment and set-off by the testator; no assets and plene adminisiravit, with leave to add, alter and amend.</p> <p>The jury found a verdict in favour of the plaintiffs for five hundred and forty-three dollars, and forty-nine cents, upon, which, after motions for a new trial and in arrest of judgment had been overruled by the court below, judgment was entered.</p> <p>The defendant removed the cause by writ of error to this court, where the following errors were assigned:—</p> <p>“ First. The township is unincorporated, and has no right to sue, nor can it be sued, nor had the supervisors thereof any authority to bring this action.</p> <p>“ Second. The declaration is informal and insufficient in this, viz.</p> <p>“ 1. The first count avers, that the testator in his lifetime w'as indebted to the plaintiffs for money received by him for the use of the plaintiffs: whereas the money received by the testator was to his own use and not to the use of the supervisors who brought this suit; the supervisors last mentioned having no existence until after the death of the testator, as appears by the third and last count in the narr.</p> <p>“ 2. The second count avers, that the executor accounted with the defendants in error about money due from the testator to the said defendants in error in his, the testator’s lifetime; whereas the testator could not have owed those who had no existence until after his death.</p> <p>“ 3. The third count avers, that upon the settlement therein mentioned, a balance of four hundred and ninety-eight dollars, and seventy-three cents was found in the hands of the executor, whereas the balance, if any, was against the testator and not his executor.</p> <p>“ 4. The narr. contains no averment, that the testator ever assumed or promised to pay any one, or that in consequence of any matter declared upon the testator ever became liable to pay any sum of money to any one, or that in pursuance thereof a right accrued to any one to have or maintain any action against the testator or his executor.</p> <p>“ 5. The only claim laid in the declaration against the testator is in his capacity of supervisor, whereas the action is brought against or names him in his individual capacity only.</p> <p>“ Third. The last count in the narr. exhibits the whole claim of the defendants in error, embracing in a settlement therein mentioned, amounts, over which the settlers had no control.</p> <p>“ Fourth. The settlers had no authority to settle the accounts of a deceased supervisor.</p> <p>“ Fifth. The declaration avers, that the executor promised to pay Samuel Deal on an order in his favour on the said executor by the said settlers. The settlers had no authority to give this order. Deal was not plaintiff, and no recovery could be legally enforced on a promise to one not plaintiff to the action.</p> <p>“ Sixth. The claim set forth in the narr. cannot be recovered in an action of assumpsit. The only remedy being that prescribed by the act of assembly of the 6th of April, 1802.”</p>

<p>An infant, who hires a horse to go to one place, hut goes to another, and kilh¡ the animal by severe usage, may plead his infancy in bar of an action on the case for damages.</p>

<p>IN ERROR.</p> <p>On a writ of error to the District Court for the city and county of Philadelphia, it appeared that this action was brought by the defendant in error, John JY. .Hawthorn, as surviving partner of the late firm of MClintock, Hawthorn ¿p Co. to recover the amount due upon a promissory note, drawn by John G. Gannon in favour of, and endorsed by John Smyth, the defendant below and plaintiff in error, for three hundred and sixteen dollars, and twenty-five cents, dated JYeio York, February 9th, 1826, and payable six months after date.</p> <p>On the trial in the court below the plaintiff offered in evidence the depositions of William Seaman and John M‘ Quade, to prove that he had received the note in question from M‘Clintock after the dissolution of the partnership; that a letter had been written by M‘Quade to the defendant below, and put into the post office at Hew York on the 15th of August, 1826, directed to the defendant in Philadelphia, informing him that the note had not been paid, and that it had been returned by M‘Quade to M‘Clintock. This evidence was objected to by the counsel for the defendant, because no notice had been given to him to produce the letter, and because the contents and words of the letter were not set forth in the depositions.</p> <p>The Judge before whom the cause was tried overruled the objection, and admitted the evidence, which was the first error assigned in this court.</p> <p>The defendant below then produced and gave in evidence a letter from the plaintiff below to him, dated October 30th, 1826, in which the plaintiff declared, that he was the legal representative of M'Clintoch then deceased, and another letter from .the plaintiff to him dated 5th April, 1827, in which he declared that the firm of M‘Clintock, Hawthorn Sp Co. had been dissolved on the 9th of November, 1825. The defendant further proved, that after the dissolution of the firm, M‘Clintock continued to reside in New York, and transact business on his own separate account; that he received consignments from the defendant, and transacted business with him, and that he died in the month of September, 1826. After having established these facts the defendant gave in evidence two notices to the plaintiff to prove the consideration paid by him for the said note, and the manner in which it came into his possession.</p> <p>The plaintiff then proved that MClintoch was largely indebted to the firm of M‘Clintock, Hawthorn and Company, and also produced a statement in the handwriting of the defendant, as follows, viz.</p> <p>“ Balance due by MClintoch, Hawthorn Sp Co. as furnished -----$ 20,39</p> <p>J. G. Gannon’s note.....316,25</p> <p>336,64</p> <p>Cash received at sundries .... 310,53</p> <p>26,11</p> <p>J. G. Gannon’s note protested ... 316,25</p> <p>1290,14</p> <p>The counsel of the defendant contended in the courtbelow, 1. That the note in question had been passed to M‘CUntock individually, after the dissolution of the firm of MClintoch, Hawthorn Sp Co. and could not be recovered by the plaintiff as surviving partner.</p> <p>2. That under the circumstances of the case, it was necessary for the plaintiff to prove the consideration paid by him for the note, and the manner in which it came into his possession.</p> <p>3. That sufficient legal notice had not been given to the defendant of the non-payment of the note by the maker.</p> <p>His Honor instructed the jury substantially as follows: — That the note, on which this action was brought, was a note with a blank indorsement to which the law attributed a character of the most sacred kind: That it was of the utmost importance to the commercial world that a note of this kind should pass free and untrammelled from hand to hand, and that if it were not so the operations of business would be greatly impeded: That the law permits a note with a blank indorsement to pass by delivery even after it has been dishonoured, but in that case the holder takes it subject to all defences to which it would have been subject to in the hands of the payee: That “ the possession of the note by the plaintiff in this instance was sufficient prima facie to entitle him to recover, and the defendant cannot call upon the plaintiff to prove the consideration paid, and the manner in which the note came into his possession, without a ground of suspicion having been first made to appear, which has not been done on the part of the defendant in this case; the plaintiff’s possession of the note is therefore in this respect sufficient to entitle him to recover, if he can make out his casein other respects. But the holder of the note when due is bound to make a demand for payment on the maker, and upon his neglect or refusal to pay to give notice thereof to the indorser in a reasonable time, and though the indorser may not be able to show that he has suffered, because of the holder’s delay in giving him notice, he may still stand upon his rights, and if he has not received such timely notice as the law says he is entitled to, he is discharged and your verdict must be for the defendant. Is that the case here? the maker bad the whole of the 12th of August, the last day of grace, to take up the note; the 13th was Sunday; on Monday the 14th August, if the indorser had come forward, his contract would have been complied with ; Monday was therefore the first day, on which the indorser was liable. It is very true, that strictly speaking, notice should generally be sent by the next mail. The law requires that the holder should use due and reasonable diligence. This is a question of fact for your decision, and must depend upon the special circumstances of the case. Mr. Seaman, the notary, on Monday morning, inquires of M‘Quade as to the place of the defendant’s residence. M‘Quade only knew that he resided out of the city of JVew York, but did not know where; and goes to receive information from MClintock; the same day he goes to Gannon’s house again to demand payment. This was an act of favour to the indorser of which he cannot reasonably complain. And on the next day, viz. Tuesday, the 15th, he puts into the post office a notice to the defendant residing here. Was this reasonable diligence? I leave it to you to judge, under all the circumstances of the case. The defendant denies that he ever received such notice. If the notice was put into the post-office in proper time, it is all the law requires. There is no proof of its miscarriage ; it rests on the defendant’s assertion only. If it miscarry, it is the defendant’s misfortune, but the plaintiff in this case having done all the law required of him by putting it into the post office, is not to be held responsible for it, if he put it in in proper time, which you will judge.”</p> <p>Errors were also assigned in this court in the charge thus given to the jury.</p> <p>cited 1 Starkie, 357. 359. 371.373. Dennis v. Barber, 6. Serg. Sf Rawle, 420. Patton’s Adm’r. v. Ash, 7 Serg. 4* Rawle, 116. Campbell v. Wallace, 3 Yeates, 271. Mliee v. Reiff, 4 Yeates, 340. Whart. Dig. 303. no. 375. Smedes v. Utica Bank, 20. John. Rep. 372. 3 Cow. 662. United States v. Barker’s adm’x. 4 Wash. C. C. Rep. 469. 12 Wheat. 559.</p> <p>cited 2 Phill. Ev. 19, 20. Smith v. Bank of Washington, 5 Serg. dr Rawle, 322. Stewart w Allison, 6 Serg. Sp Rawle, 329. 6 Wheat. 104. 13 John. Rep. 470. 3 Pick. 180. Leazure v. Hillegas, 7 Serg. Sp Rawle, 320. Williams v. Smith, 2 Barn. Sp Aid. 501. 1 Chitty on Bills, 279.</p>

<p>An administrator de bonis non, can claim nothing but the goods, &c. of the intestate remaining in specie, unconverted and unchanged at the time of the death of the original administrator:</p> <p>Therefore, an administrator de bonis non, cannot-maintain a scire facias upon a judgment on an administration bond to recover a balance due from the original administrator to the estate of the intestate.</p> <p>Quere, whether the representatives of a deceased co-administrator, and co-obligor, can be made liable for the assets of the intestate, which came exclusively to the possession and management of his surviving co-administrators and co-obligors, who settled an administration account, charging themselves alone with the amount of such assets ?</p>

<p>Where the board of managers of a turnpike company authorised two of their number (the plaintiffs) to borrow twelve thousand dollars of a bank for the use of the company, pledging the stock forits repayment, and the defendant, and several other members of the board entered into a written agreement to guarantee each one twelfth part of that sum to the borrowers, if the stock should not be sufficient, and the money was borrowed accordingly and applied to the use of the company, who set apart one thousand dollars to meet discounts, and the plaintiffs after that sum was exhausted, continued to renew the note from time to time, paying the discounts and curtailments required by the bank, out of their own funds until the whole was ultimately paid off;</p> <p>Held, that the contract was an entire one; that the defendant’s liability continued as long as the loan continued; that the plaintiff’s cause of action accrued when the whole of the money was paid, and that if suit was brought within six years from that time, the act of limitations was not a bar.</p>

IN ERROR. Writ of error to the District Court, for the City and County of Philadelphia, in an action of assumpsit brought by the defendant in error, Edward Hudson, against Fishhourn Wharton, and Thomas F. Wharton, to recover the sum of one hundred dollars paid by the plaintiff to the defendants under the following circumstances: Laws were passed by the state of New Jersey on the ,26th of January, 1819, and 23rd of February, 1820, and by the state of Pennsylvania, on the 6th…

<p>Testator appointed his wife and his two sons executors of his will, by which he authorised them, and the survivors and survivor of them his said executors, the better to enable them to pay his debts and legacies, and to make division of his estate among his residuary devisees, to sell and dispose of all or any part, of his real estate at public or private sale, &c. His widow did not join in malting probate of the will and tailing out letters testamentary, which was done by the sons. She did not appear before the Register, or make or send to him any renunciation either written or verbal. It did not appear she was asked to join in proving the will and taking out letters testamentary, or that any notice was given to her of the time of its being done by the others. The other two executors agreed to sell a lot of ground, part of the estate of the testator, to the defendant, and a deed to him from the three executors was written, but the widow refused to execute it. A deed was afterwards executed by the other two executors and tendered to the defendant, who refused to accept it, saying at the time, that he had no money to pay for the property. An action of assumpsit was then brought against the defendant, in the name of the three executors, in which the declaration set forth the sale of the lot by the sons, two of the plaintiffs ; that the defendant upon his contract became liable to pay them the price agreed upon, and concluded by assigning a breach in the nonpayment thereof to the said two executors. After the trial of the cause in the court below, the widow signed and sealed a renunciation as executrix.</p> <p>Held, that the action could not be supported.</p> <p>Held, also, that the deed tendered by the two executors to the defendant, was not sufficient to vest in him a good title to the lot.</p> <p>A widow’s claim to dower may be barred by her election, by matter in pais, to take a deyise in her husband’s will.</p>

APPEAL. This was an appeal from the decision of the District Court for the City and County of Philadelphia, relative to the distribution of. money arising from the sale, by the sheriff, of certain real estate belonging to the defendant.

IN ERROR. On a writ of error to the District Court for the city and county of Philadelphia, it appeared that the plaintiffs in error Thomas and William H. Hart brought this action on a promissory note drawn by Samuel Heilner fy Co. dated the 14th of June, 1816, at sixty days, after date for $405,74 in favour of Conrad Krider, by whom it was endorsed to the plaintiffs.

<p>If the recognitors who are sworn in an assize of nuisance cannot agree and are discharged, the panel cannot afterwards be resummoned, and tire whole of them sworn, to afforce the assize.</p> <p>Nor can those who were not previously sworn, be sworn with a tales and take the assize.</p> <p>Nor can a writ be awarded commanding the sheriff to summon a new set of recognitors.</p>

<p>The regular confirmation by the Orphan’s Court of an administration account, shewing a deficiency of personal assets for the payment of the debts of the decedent, is a final settlement, within the meaning of the act of 1st of April, 1811; and authorizes the Orphan’s Court to make an order for the sale of the real estate of the decedent, for the payment of his debts. '</p> <p>If the question, whether or not a partition has been made, is presented to the Orphan’s Court, as an incident to the principal subject before them, they must decide it; or they may, if they think proper, direct an issue to determine it.</p> <p>When lands devised to several, as tenants in common in fee, have been appraised in separate lots by persons chosen by the parties, and the devisees enter into a written agreement, declaring that they have made a full and just partition thereof, according to the appraisement and allotment, and enter into and hold possession of the same, this is a valid and binding partition, notwithstanding the agreement contain a stipulation that the parties shall contribute equally to the payment of an existing claim upon a part of the estate, and a covenant that they shall before a certain day execute a deed of partition, or such other legal assurance, as may be deemed necessary.</p> <p>An agreement by a. feme covert malting partition of her real estate, is binding, without a separate examination and acknowledgment; particularly if it be to her advantage, and not objected to by her, or those claiming under her.</p> <p>If the devisees of lands as tenants in common, make partition by agreement, and the portion of one of them be sold by order of the Orphan’s Court for the payment of the debts of the testator, that court has power by virtue of the act of 1st April, 1811, to decree contribution by the other devisees.</p>

<p>The declarations of a person while holding the legal title to an estate, that ho was merely a trustee for another, who had paid the purchase money, are admissible in evidence against those claiming under him, although he be, at the time such declarations are offered in evidence, in full life, within the reach of the process of the court, and capable of being examined as a witness.</p>

<p>IN ERROR.</p> <p>On a certioraH to the court of Quarter Sessions of Lehigh county, the record of that court in the matter of the application for the division of Maccungie township, was returned to this court, where the exceptions filed by the appellants to the proceedings of the court below were argued by</p> <p>Opinions, agreeing with each other, were delivered by Ross, J., and Kennedy, J., in which the circumstances of the case are so fully and minutely stated, that any other report of it would be superfluous.</p>

<p>A. § B. brought an action of assumpsit against O. in which they declared upon an alleged agreement, that the said C. in consideration that they would enter satisfaction on two judgments which they held against him as administrators of D. for the purpose of enabling him to make a perfect title to one E. for a lot of land which C. had sold to him and which was bound by those judgments, promised to give to A. and B. a new judgment for the aggregate amount of the two judgments on which they at his request had agreed to enter satisfaction; averring, that confiding in the said promise, they did enter satisfaction &e. Before the trial of the causo took place, A. died and his son was offered as a witness to prove the agreement after having executed to a third person, an assignment of all his interest in the suit and the money for the recovery of which it was brought, and offered to pay into court all the costs which had accrued and a sum sufficient to cover all which might thereafter accrue; Held that he was incompetent on the ground of interest, notwithstanding the assignment &c. because in the event of the plaintiffs failure to recover ■ in this suit, the estate of the witness’s father A., of which he was entitled to a distributive share, would be liable to make good to those interested in the estate of D. of which he was one of the administrators, his proportion of the amount of the two judgment upon which satisfaction had been entered.</p>

<p>The mere possession of a bond by one of several co-obligors, is no evidence that he has paid the whole debt.</p> <p>Therefore, in an action by one co-obligor who alleged he had paid the whole debt, against the other for contribution, where the joint liability of the plaintiff and defendant was admitted, it was held to be error to permit the bond to be given in evidence by the plaintiff to prove that he had paid the whole debt.</p> <p>The declarations of a third person, as to a disputed fact, made in the presence of both parties, is evidence, though not conclusive, against a party who has consented to submit the fact to Iris decision; even where such third person is capable of being examined as a witness.</p>

Error, to the District Court for the city and county of Philadelphia. Held: containing twenty feet one inch in front. At the time of this conveyance there was erected on the lot granted, a frame building, on the lower story of which there was nineteen feet two and a half inches in front.

<p>A judgment given by one of two joint assignors of real estate for the benefit of creditors, to the other, prior to their assignment, must be postponed to the debts provided for by the assignment, though the judgment has been subsequently transferred to one, who, with notice of the assignment, paid value for it.</p>

MANDAMUS. This was a rule to shew cause why a mandamus should not issue commanding the commissioners of Huntingdon county to draw an order on the treasurer of said county for the payment of a bill of costs in the case of the Commonwealth v. Parkes.

<p>Devise to “ my nephew J. G. and his four children, and also to W. R. to be equally divided between them during their natural lives and afterwards to revert to tho male heirs in a lineal descent of my nephew J. G. whose male heirs are only to possess my estate in tail, and their male issue who bears the name of C. forever.” W. R. died befare, and J. C. the nephew, after tho testator. The plaintiff was the eldest son and heir of the said J. G. the nephew : Held, that tho plaintiff took five-sixth parts as tenant in tail in remainder, and the one-sixth part of W. R. by way of executory devise, and upon the events which had taken place, was entitled to the'possession of three-sixth parts immediately.</p> <p>A devise of the third part of the proceeds of an estate, is equivalent to a devise of a third part of the estate itself.</p>

<p>The lien of a mechanic under the act of 17th March, 1806, and its supplements does not extend beyond the description of the property in the claim filed.</p> <p>Where therefore a claim is filed against a building, and the lot on which it is erected, without more, the lien does not extend to the adjoining ground as appurtenant to the building.</p> <p>A right of way from necessity extends to a single way. It is always from strict necessity and this necessity cannot be created by the party claiming the right. It never exists where a man can get to his property through his own land however inconvenient the way through his own land may be.</p> <p>How far the concealment or not giving notice of a claim to land, or to a right of way through another’s land, will prevent the subsequent assertion of such claim.</p>

<p>The court, even in a capital case, may discharge a jury, helbre verdict, hr a case of absolute necessity; but mere inability to agree does not constitute such a case; nor does it arise from the illness of some of the jury rendering them incapable of continuing longer in a state of privation and- restriction, without endangering their lives, if such illness can be removed by permitting them to have refreshments, and the court against the consent and prayer of the prisoner, refuse such refreshments, unless a majority of the jury agree to receive them, which they decline.</p> <p>If a jury has been discharged before verdict, under such circumstances, the prisoner may plead them in bar of another trial.</p>