Volume 3 — Sergeant & Rawle's Pennsylvania Reports

Appeal. RULE to shew cause why the appeal from an award of arbitrators should not be set aside. A compulsory rule for arbitration had been entered by the defendants, and on the 1st November, 1816, an award was made, in favour of the plaintiff, for 771 dollars 50 cents.

In Error. ERROR to the District Court of the city and county of Philadelphia. The defendant below was served with a rule of arbitration, and not appearing at the prothonotary’s office, arbitrators were appointed without him. The arbitrators met at the time and place appointed, and the defendant not appearing, they heard the plaintiff’s evidence, and made an award in his favour.

HABEAS CORPUS. David Johnson, at whose instance the habeas corpus in this case was issued, was in custody of Holloway, keeper of the prison of Philadelphia, on two commitments by Judge Badger: — first as the runaway slave of Mr. Levin Frazier of Dorchester county, in the state Of Maryland; second on a charge of fornication and bastardy.

<p>Where pr ceedings liar been confirn ed in this Court on error, and the record ordei ed to be sen! back, it is to be considere as out of this Court, ■whether actuallj sent back or not. Where proceedings have been confirmed in this Court on error, and the record ordered to be sent back, it is to be considered as out of this Court, whether actually sent back or not. i ¡ ¡</p> <p>Even if st this Cour the issue on nut tiel reco would be wi the plaintiff, where the d claration do not state it t be in the Court below but only tha judgment was given in the Court bi low. Even if still this Court, the issue on nul tiel record-would be with the plaintiff, where the declaration does not state it to be in the Court below but only that judgment was given in the Court below.</p> <p>Query, Ii judgment ci be entered f the defenda on a report auditors in : count rende finding that the defenda was in surp sage? Query, If judgment can be entered for the defendant on a report of auditors in account render, finding that the defendant was in surplusage? ■</p> <p>But the 1 is well setth that the defendant ma; maintain an action of de against the plaintiff for the amount so found in surplusage. But the law is well settled, that the defendant may maintain an action of debt against the plaintiff for the amount so found in surplusage.</p>

FREDERICK EBERLE, and fifty-eight others, members of “ the German Evangelical Lutheran Congregation «in and near the city of… Held: by the members of the said congregation, for certain, officers of the same, viz. for elders and wardens, did unlawfully, and oppressively, and with force and violence, riotously, and routously, make and raise, and cause to be made and raised, a great noise, tumult, riot, and disturbance; and then, and there, in further pursuance of…

In Error. ERROR to the District Court of the city and county of J Philadelphia. brought an action of replevin against Harris, for fifteen boxes of liquorice paste ; and, on ^ tr*aí» case was as follows. The liquorice paste belonged to Mr. Hinkle of Boston, who transmitted it to Silas' E. Weir of Philadelphia, auctioneer, with directions to sell' it at auction. It was accordingly put up at auction, and sold-on the 23d August, 1812, to the defendant, Harris.

ACTION on a policy of insurance on the brig Madeira, at and from Philadelphia to Charléston, and at and from thence to Madeira. , ' • , ' [ ■ , 1 , ' , . Held: in consequence of which she was condemned and sold.

Quo Warranto. THIS was an information in the nature of a quo -warranto against George G. Woelper, George Honey, Frederick Frické, John N. Fisher, and Frederick Hceckley, five of the defendants, for usurping the office of vestrymen of the corporation called, The Ministers, Vestrymen, and Church-wardens of the German Lutheran Congregation in and near the city of Philadelphia, in the state of Pennsylvania: and against Henry Block, William Berg, and- John Kohler, the three other…

In Error. ERROR to the District Court of the city and county of Philadelphia. On the 10th July, 1811, an agreement was signed by Samuel Ewing, administrator,, with the will annexed of George Taylor deceased, during the absence of the executor of the said Taylor, and William Lewis, to enter an amicable action as of June Term, 1811. The action was accordingly entered on the 27th November, 1811.

Certiorari; THIS was a certiorari to Alderman Badger, to certify a conviction by him of the defendant, for a breach of the sabbath, to which the following proceedings were returned. “ The Commonwealth v. Abraham Wolf. Charged on oath of James Pusey with having done and performed worldly employment on the Lord's day, commonly called Sunday. Warrant issued 29th July, 1816.

<p>On informations in nature of a quo -warranto, at common law, where there is no relator, the Court cannot give judgment that the defendant shall pay costs; nor have they authority to declare that any part of the fines shall go to the prosecutors.</p>

CASE stated. Patrick Byrne, the testator, was, at the time of his death, indebted to the plaintiffs in the sum of three hundred and fifty pounds and upwards, Irish sterling, monies belonging to them in right of their mother, who was the testator’s first wife.

Demurrer. THE defendant was sued as indorser of a promissory-note, which fell due in August, 1811.

THIS was an action on a policy of insurance on goods on board the ship u Julius Henry” on a voyage from Baltimore to Hamburg, with liberty to touch at Toningen. Held: that actual trading is not necessary. The law is infringed whenever the vessel attempts to trade illicitly. The decree of the 6th August, 1807, was a lawful decree. It was confined to territory, of which Bonaparte was sovereign de facto. Hamburg acquiesced in his power.

<p>The Supreme Court will not entertain an appeal from a judgment of the Orphans’ Court entered pro forma and without prejudice.</p> <p>It will not proceed in such cases even with the consent of parties.</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Philadelphia county.</p> <p>Moses Gillingham recovered against Joseph Guilky, 71 dollars and 4 cents, before Justice Worrell, on the 19th September, 1810. In March, 1814, he issued a scire facias before the same magistrate upon this judgment, on which he had judgment for 85 dollars 67§ cents. The defendant appealed to the Common Pleas from the latter judgment; but, that Court, on motion, dismissed the appeal, being of opinion, that the act of assembly did not authorise an appeal from a judgment upon a scire facias. It afterwards appeared, that the record did not contain the recognisance required by law, in case of appeal.</p> <p>A scire facias is in the nature of an original, and the defendant may plead to it. 6 Bac. Ab. 103. scire facias A. In Grey v. Jones,(a) there was a scire facias, plea, and demurrer. It .was objected, that the plea was wrong, because it was said in it, that the plaintiff ought not to have his action, &c.; but it was held good, and the demurrer withdrawn. A scire facias is a new action, and requires a new warrant of attorney. 6 Johns. 108.</p> <p>The act of assembly giving jurisdiction to justices, is confined to contracts. A scire facias is merely a judicial writ; it is a continuance of an old action, not a commencement of a new one. 2 Tidd’s Prac. 983. But it is a fatal objection to the reversal of the decision of the Court below, that no recognisance appears to have been taken; as required by the act of 20th March, 1810. And the whole proceedings must be certified on an appeal. 2 Browne, 190.</p>

Certiorari.’ THIS was a certiorari to remove the proceedings of Michael Keppele and Jacob Baker, esqs. two of the aldermen of the city of… Held: and by virtue of which she was then in actual possession of the premises, and ending on the 1st May, 1817; and this deponent verily believes, she is legally entitled to hold the premises, by virtue of the said leassjfuntil the said 1st May, 1817. “ Sworn, &c. “ JUDITH M'CALL” And offered to enter into recognisance with sufficient…

CASE STATED. Catherine Dupuy, deceased, was authorised by the will of her father John Dowers, to dispose of one-fifth part of his estate, among such of his grand-children as she thought proper, “ by any writing under hand and seal, executed in the “ presence of two or more credible witnesses ;” and in case no such disposition should be made, the property was to be equally' divided among all the testator’s grand-children.

In Error. ERROR to the Common Pleas of Lehigh county, in an action of assumpsit, brought by the overseers of the poor of the township of South Whitehall against the overseers of the poor of the township of North Whitehall, for money paid by the former to the use of the latter. These two townships formerly constituted one township called Whitehall, which was divided on the 22d November, 1810, into North Whitehall and South Whitehall townships.

Ejectment. A RULE had been obtained by H. Jacobs and John i?. Jacobs, to shew cause why they should not be substituted defendants, instead of Hoo-bs, the defendant.

<p>In Error.</p> <p>ERROR to the District Court of the city and county of Philadelphia.</p> <p>On the trial of this action, (which was an action of slam der,) in the Court below, the defendant offered as a witness his son-in-law, William Nag-lee, who was objected to by the plaintiff, on the ground of his being “ interested in the “ event of the suit, or if not interested, yet that he supposed himself to be so.” In support of this objection, the plaintiff proved by the testimony of Samuel Na~ glee, that William Naglee, about two years before this suit, had said, “that he would give five dollars out of a his own pocket if he could have the suit settledand, ■ moreover, added, that “ every cent which should be re- ' “ covered in this action would be deducted out of the “ estate of his wife,” (the daughter of the defendant.) The Court rejected the witness as incompetent, because “ if “ he was not interested, he supposed himself to be soto which decision the defendant excepted.</p> <p>There are several dicta in favour of the position, that a witness who thinks himself interested is incompetent; but the law is not so. Any prejudice or bias of that kind goes to his credit only. 4 Burr. 2254. A remote, or contingent, or doubtful interest does not disqualify. 5 Johns. 256.. 3 Dali. 506. The interest must be positive ; a legal fixed interest in the event of the suit. 1 Johns. 486. 10 Johns. 21. 2 Atk. 229. Proof that a witness has confessed himself interested does not disqualify him; otherwise if the party producing him has confessed it. 5 Mass. Rep. 261. 8 Mass. Rep. 48 T. It is expressly laid down in Phillips on Evidence, 41, that a witness is not incompetent, because he thinks himself interested. The interest must exist at the time the witness is offered. 2 Binn. 501. In this case it was only proved, that two years before the witness had said his wife’s fortune would be lessened by the plaintiff’s recovery,</p> <p>The witness thought that his wife’s father would deduct the whole damages recovered against him in this suit from his wife’s fortune ; so that the witness and his wife were the real defendants. That a witness who thinks himself interested is disqualified, is distinctly asserted in many cases. Fotheringham v. Greenwood,(a) cited in Bac. Ab. Vin. Evid. 1 Dall. 62. If a creditor acknowledges an expectation, that he shall be bettered by the event of the suit, he is incompetent. 2 Dali. 50. No case in Pennsylvania has over-ruled these decisions in Dallas's Reports. So by Parker. C. J. in 5 Mass. Rep. 518, if a witness testifies under the impression of interest, he is incompetent. In 8 Johns. 428, it is stated as the rule, that if the witness thinks himself interested in favour of the party calling him, and he cannot be released, he is not a witness; otherwise, if he thinks himself interested against the party calling him. So also in 2 Munf. 148, it is held that a witness considering himself interested is incompetent. The only authority to the contrary is Phillips’s Law of Evidence; but the note to the New York edition shews, that the current of American authorities is opposed to the law as laid down by him.</p>

In Error. ERROR to the District Court of the city and county of Philadelphia, in a replevin which was submitted to arbitrators. An award was returned and filed in the prothonotary’s office, on the 20th April, 1816, in favour of the plaintiff, for 221 dollars and 66 cents.

CASE STATED. Error to the Common Pleas of Bucks county. Held: to make a tenancy in common in a will. The word “ equally” in a will, was held to make the estate a tenancy in common, in Rigden v. Vallier, 3 Atk. 733.(g) So “ part and part alike” Cro. Car. 75, “share and share alike,” and “respectively.’’ Ib. Heathev. Heathe.(h) l Eq. Ca. Ab. 537. Cas. Temp. Talb. 27. Stiles, 434.

• , ( ' • : : . ALLISON., brought an action of trespass and false imprisonment against Rheam, in this Court. Held: that trespass lies against the party and his attorney, for- issuing a capias ad satisfaciendum, on a judgment against an administratrix. In an action on the case; we should be put to prove express malice. They cited also Caines’ Rep. 267. contended, That this process, was voidable, not void, and, therefore, trespass .did not lie.

In Error. ERROR to the Common Pleas of Philadelphia county. This was an action brought by Parker against McLaughlin, , r .. ri before a justice or the peace, m which judgment was given ^ just^ce in favour of the plaintiff, for 85 dollars and five cents, and costs, on the 13th October, 1813. The defendant appealed to the Court of Common Pleas. The plaintiff filed a declaration, in which he laid an assumption of the defendant on the 16th November, 1813.

Quo Warranto. THIS was a rule to shew cause, why leave should not be granted to file an information in nature of a quo warranto, against Joel B. Sutherland, at the relation of George F. Lehman, to enquire by what authority the said Joel B. Sutherland exercised the office of Lazaretto physician, for the port of Philadelphia.

HABEAS CORPUS. George Crispin, the relator, on the 27th December, 1801, being a poor child, was bound by the overseers of the poor of the township of Lozver Dublin in Philadelphia county, as an apprentice to Jacob Miles, for the term of 17 years, from the 13th January, 1802. Miles, on the 4th May, 1814, in consideration of 60 dollars, assigned the indenture to Joshua Jones, the defendant, in the presence of Thomas F. Gordon, a justice of the peace of Philadelphia county.

In Error. THIS was a writ of error to the Common Pleas of Lancaster county, which was heard at a special session of this Court, held by virtue of an act of assembly passed for that 'purpose, in March last, and decided at this Term. But, as the opinions of the Judges contain a minute detail of the facts and principles involved in the decision, and as a report of the arguments would extend to a very inconvenient length, it has been thought preferable to omit them.

Indictment. moved for a writ of error upon an indictment and sentence or the defendant for burglary, on the ground that the indictment stated the breaking and entering to be into a mansion house, and not a dwelling house. And also that the Court made it a part of their Sentence, that the defendant’s goods and chattels should be forfeited, and that his lands and tenements should be forfeited for life.

In Error. ERROR to the Common Pleas of Lebanon county. This suit was an action of debt on a bond, brought by Casper Dasher, assignee of John Elder, assignee of Chris* tian Michael, assignee of Peter Leinaweaver, sen., against Peter Leinaweaver, jun., to which the defendant pleaded payment, and gave notice of the special matter.

In Error. ERROR to the Common Pleas of Lebanon county. executor of Margaret Bickel, deceased, for the use of John Adam Lautermilch against Tost Kneagy, administrator of Erhardt Heckedorn, upon a single bill given by Heckedorn to Margaret Bickel. No declaration was filed; but the plaintiff made a written statement of the cause of action, according to the act of assembly.

In Error. ERROR to the Common Pleas of Lebanon county. Breidenbach, the plaintiff below, brought this action upon an arbitration bond entered into by the defendant, on the 4th August, 1786, to abide the award of arbitrators for damages alleged to have been done prior to that time, by the defendant, to the bark mill and spring of the testator, by damming up a streamlet of water on the defendant’s land.

In Error. ERROR to the Quarter Sessions of Dauphin county. Ream, the defendant below, was indicted for forgery. The indictment contained foul' counts, upon the second of which he was convicted.

<p>Where it was not stated in the report of reviewers of a public road, that they were all sworn, the proceedings were quashed.</p> <p>In the Matter of the review of the Road leading from the south end of Samuel Morrison’s Lane to the rolling mill of John Neff & Co.</p>

In Error. THIS was a writ of error to the Common Pleas of Dauphin county, in a suit brought there by Moodie against Miles. Held: that bare evidence of an acknowledgment of a debt, within six years, without any evidence of a promise or intent to pay, avoids the statute. Here Miles admitted, by his acknowledgment, that “ Moodie had a right to something, but questioned the quantum. This amounted to a promise to pay as much as the services were worth. 3.

<p>In Error.</p> <p>ERROR to the Common Pleas of Lancaster county, in an action on the case, brought by Rank, the plaintiff below, against Ream, for debauching his daughter and getting her with child, by which the plaintiff lost the service and comfort of his daughter and servant, and was put to great trouble and expense, and was subject to great pain, anxiety, and distress of mind, &c.</p> <p>contended, that the action was improper. It should have been trespass. The action on the case prevailed in England', near thirty years ago, but has since been changed. It was a mistake of Judge Buller, which introduced a wrong practice. The practice here may also have been to support case ; - but that practice has been erroneous. The forms in the old books, in these actions, and others which are analogous, are in trespass vi et armis; as for taking away an apprentice, per quod, &c. Reg. brev. 109 ; for putting poison in meat, per quod, &c. Ib. 97 for assault and battery on a servant, per. quod, &c. lb. 102. Rast. Ent. 455.pl. 20. 605. pl. 1. 592. pl. 4. Thomps. Ent. 388. pl, 160; for taking the plaintiff’s wife and goods, per quod, &c. Lill. Ent. 441. Cro. Jac. 538. So in a similar case, for breaking and entering the plaintiff’s house and debauching his servant, per quod, &fc. the action was trespass. 2 Lutw. 1496. In Russell v. Corne,(a) it is said by Holt C. J. that “aman cannot maintain an action “ against another for assaulting his daughter, and getting her “ with child; but he may maintain an action against another “for entering his house, and assaulting and getting his “ daughter with child, per quod servitium amisit; and that “is a great aggravation. In Turridge v. Wade,(b) in the year 1769, the suit was trespass; and an assault and battery on the .daughter was laid. So an assault on the plaintiff’s daughter was laid in Postlethwait v. Parkes.(a) Trespass was .brought for taking plaintiff’s son and heir, and marrying him. Fitz. N. B. 206. G.</p> <p>I do not deny that trespass lies; but the plaintiff has his election to bring case or trespass. He may wave the trespass if he pleases. The criterion that distinguishes trespass from case is, whether the injury is immediate or not. Reynolds v. Clark.(b) Scott v. Shepherd.(c) In this action the consequential damage is the foundation of the claim. Three cases have been tried in this county like the present, in all of which the action was an action on the case. Lyon v. Hamilton, in 1800, in the Circuit Court of Lancaster county. Spear v. Patterson and Zurtman v. Miller, in the Common Pleas.</p>

In Error. ERROR to the Quarter Sessions of Dauphin countyy upon an indictment and sentence against the plaintiffs in error, the defendants below, for conspiracy.

In Error. ERROR to the Common Pleas of Dauphin county. Frederick Hummel, executor of George Toot, deceased, brought an action of covenant against T. Sweitzer, on articles of agreement by which the said Sweitzer, and a certain Samuel Howard, deceased, agreed to sell and convey a tract of land in Virginia, to G. Toot, deceased. The purchase money was paid by Toot in his life time, and the breach of covenant assigned, was the not executing a conveyance to him.

In Error. ERROR to the Common Pleas of Lancaster county, in which a bill of exceptions to the opinion of the Court was returned with the record. The suit was brought by Dufresne, the plaintiff below, against Kean and Foster, to recover the balance due. on a note given by them to him. The defence set up, was, that Kean and Foster were partners when the note was given, and after the dissolution of the partnership, Kean gave the plaintiff another note in satisfaction thereof.

Appeal. THIS was an appeal from the Orphans’ Court of Dauphin county. John Bickle, jun. and Sarah Bickle, (now the wife of John Young,) were administrators of Henry Bickle, deceased. John Bickle, jun., who was the acting administrator, settled a final account in his own name, on which a balance of 1058 dollars and 9 cents was due to him, having paid debts of the intestate beyond the assets to that amount..

<p>In Error.</p> <p>ERROR to the Quarter Sessions of Lebanon county.</p>

In Error. THIS was a writ of error to the Common Pleas of Lancaster county. An action was brought by Fowler against Zeigler, and a rule of reference entered under the “ act re- “ gulating arbitrations.” The arbitrators made an award in favour of the plaintiff. The defendant paid the costs, and entered an appeal within twenty days, according to the provisions of the act of assembly.

In Error. ERROR to the Common Pleas of Dauphin county.. ERROR to the Common Pleas of Dauphin county.. THIS was a feigned issue, directed by the Court of nmon PÍeas of Dauphin county, in which John Carothers plaintiff and Henry Wolf defendant; the object being to whether a bond, given by David Peiffer to his father, ob Peiffer, a short time before David became insolvent, bona fide, and for a valuable consideration. The dispute between the creditors of David Peiffer.

In Error. ERROR to the Common Pleas of Lancaster county. brought an action against John Pedan and Henry Strickler, executors of Hugh Pedan, deceased, for a legacy bequeathed by the testator to his daughter, Mrs. Cox. Before the return of the writ, the plaintiffs entered a rule of arbitration in the prothonotary’s office, and had a copy of it served by delivering it to the wife of Pedan, one of the defendants ; but no copy was served on Strickler, the other defendant.

<p>APPEAL.</p> <p>THIS was an appeal from the Court of Common Pleas of T 7 Lebanon county,</p>

In Error. THIS was a writ of error to the Common Pleas of Dauphin county, in a suit brought by Nagle and Miller as assignees of the Sheriff, against Boas and Egle, upon a bail bond, to December Term, 1815. The sheriff returned summoned ; and the plaintiffs filed their declaration at December Term, 1815, and took judgment by default, at the next Term.

In Error. ERROR to the Common Pleas of Lebanon county, in an action against the defendant, Henry Koppenheafer, for slander of the plaintiff’s wife, Susanna, in which the Court below arrested the judgment, after a verdict for the plaintiff. The slanderous words alleged in the declaration to have been uttered by the defendant, were in German, meaning in English, as follows, “ what is a woman that makes a libel ?

In Error. ERROR to the Common Pleas of Lancaster county, in which Musser and Herr, the plaintiffs below, brought three suits against Groff, to April Term, 1815, numbers 256, 257, and 283. The prcecipe in each was for “ summons in debt, “ on promissory note not exceeding 250 dollars.” The plaintiffs took out a rule of arbitration in each case, and the same arbitrators were appointed in each suit, to meet at the same time and place.

In Error. ERROR to the Common Pleas of Lebanon county. Held: that the declaration of a devisee, that in. his opinion the testator was not of sound mind, was not evidence. It does not appear, that John Miller was interested in supporting the will. The devise of 300 acres of land to him was charged with 3500 pounds.

<p>A writ of error abates by thedeath of one of the plaintiffs in . error, before errors assigned.</p>

<p>An act permitting the owners of lands adjoining any navigable stream of water, declared by law a public highway , to erect dams,andprescribing a special proceeding for injury to the navigation, eomprehendsastream declared a public high- . way after the passage of the act; especially ifthesummarf remedy given topersonswho sustain damage, is extended by the act to streams thereafter declared public highways.</p>

In Error. In Error. ERROR to the Common Pleas of Union county. had moved, at a prior term, to quash the writ of error in this case, because it was not sued out by the plaintiff in error. ■ The facts were, that the writ of error was sued out by John Montgomery, one of the landlords of Vanhorn, the tenant; but Vanhorn, alone, was the defendant on record.

<p>t The plaintiff , in ejectment cannot recover on the weakness of the defendant’s title, he must shew i title in himself.</p> <p>Where a new survey is made, calling for the lines of an old survey, ► there is no occasion to mark the trees [ anew.</p> <p>I Query, whe- ^ ther, in gene- • ral, possession is notice of a claim.</p> <p>But if there is a sale of land by the sheriff, as the property of A, and B, who is in possession, stand b\, knowing that he is represented as the tenant of A, and does not contradict it, he cannot afterwards contest the title of A, with the purchaser.</p> <p>The k Vurt are not hound to answer questions, unless they are pertinent to the issue, and fairly arising out of the evidence,</p>

In Error. ERROR to the Court of Common Pleas of Mifflin county. This was an appeal to the Court below, from the judgment given by a justice of the peace in favour of M-Conachy, the plaintiff below, for 83 dollars, 82 cents. The appeal to the Court of Common Pleas was on the 20th July, 1814.

<p>Residence is not necessary to make an ad verse possession within the statute of limitations; the possession may be adverse by inclosing and cultivating tije land.</p> <p>The Commonwealth cannot be affected bj the act of limitations. But Query, how-far it operates as to private persons,where the legal estate remains in the Commonwealth with an equitable interest in those persons.</p> <p>But unquesr lionably the act of limitations runs from the date of a patent, whatever it might do before.</p>

In Error. ERROR to the Common Pleas of Luzerne county. This was an action for the recovery of the penalty of 50 pounds, under the act against clandestine marriages, passed the 14th February, 1729-30, brought against the defendant, a justice of the peace, for marrying the son of the plaintiff, an infant under the age of 21 years, without his father’s consent. • ' On the trial of the cause in the Court below, the plaintiff offered in evidence, the copy of a notice served on…

<p>In Error.</p> <p>ERROR to the Common Pleas of Luzerne county, and bill of exceptions to the charge of the Court.</p>

In Error. ERROR to the Court of Common Pleas of Northumberland county. This was an indebitatus assumpsit, brought by James Ash and others, administrators of James Craig, deceased, against John Patton, administrator oí John Patton, deceased. The declaration contained counts for goods sold and delivered, money had and received, money paid and expended, and money lent. The pleas were non assumpsit, payment, and non assumpsit infra sex. annos.

In Error. THIS was a writ of error to the Common Pleas of Mifflin county, on which a bill of exceptions was returned with the record.

<p> HABEAS CORPUS. </p> <p>On a habeas corpus issued in this case, it appeared, that the defendant, the sheriff of Northumberland county, held Joseph Kerr, the relator, by virtue of an attachment issued against him by the register’s court of Northumberland county, for a contempt, in disregarding and disobeying a citation issued from the register’s court, on the 28th of October, 1816, by which, the said Joseph Kerr, was cited to be and appear , , „ , , , „ , . at the register s office on the 18th November, 1816, and then and there, to exhibit to the said register, a true and just inventory, and just account of his administration of Robert Irwin, deceased, or to shew cause why an attachment should not issue against him, agreeably to an order of the said court for that purpose convened. The attachment commanded the sheriff to keep the said Kerr safely, until he should make a full settlement of the estate of Robert Irwin, deceased, one of whose administrators the said Kerr was. It was issued on the 10th June, 1817, signed by the register, and tested in the name of the president of the register’s court, (who was the president of the Common Pleas).</p> <p>The register’s court has no power to settle the accounts of administrators, and of course no power to cite an administrator to settle his account. This power is by the act of 27th March, 1713,(a) vested in the Orphans’ Court.</p> <p>By the act of 17th June, 1712, § 4. (Pardon’s Dig. 573. note,) the register general may call to his assistance, two or more justices of the Common Pleas, and settle the final accounts of executors and administrators, as well as decide on caveats. This act has never, been repealed ; and so far as respects caveats is constantly acted on.</p> <p>said, that the act of 1712, was impliedly repealed by the act of 1713.</p>

In Error. ERROR to the Common Pleas of Columbia county, in ejectment for 150 acres of land. The case was argued by Hall and Watts, for the plaintiff in error, and Bradford and Huston, for the defendant, and is fully stated in the opinion delivered by the Chief Justice.

In Error. ERROR.to the Common Pleas of Union county. This case was argued by Bellas and Fisher, for the plaintiffs in error, and Hall and Watts, for the defendants in error.

<p>Although the act ot 8th April, 1785, directs, that e< every warrant shall be directed by the surveyor general to the deputy surveyor of some district, in order that the same warrant may be duly executed,J> yet a survey made under a warrant not directed lothe deputy surveyor of any particular district, accepted by Un- burvey- or general, and notin conflict with any other survey, is good evidence of title, The act only deprives the party of his priority of survey, on such ,tro nl«ant Although the act ol 8th April, 1785, directs, that e< every warrant shall be directed by the surveyor general to the deputy surveyor of some district, in order that the same warrant may be duly executed,J> yet a survey made under a warrant not directed to the deputy surveyor of any particular district, accepted by Lin- survey- or general, and notin conflict with any other survey, is good evidence of title. The act only deprives the party of his priority of survey, on such warrant. Although the act '>( 8th April, 1785, directs, that e< every warrant shall be directed by the surveyor general to the deputy surveyor of some district, in order that the same warrant may be duly executed,J> yet a survey made under a warrant not directed lothe deputy surveyor of any particular district, accepted hy the burvey- or general, and notin conflict with any other survey, is good evidence of title, The act only deprives the party of his priority of survey, on such warrant. Although the act ol 8th April, 1785, directs, that e< every warrant shall be directed by the surveyor general to the deputy surveyor of some district, in order that the same warrant may be duly executed,J> yet a survey made under a warrant not directed tothe deputy surveyor of any particular district, accepted hy the survey- or general, and notin conflict with any other survey, is good evidence of title, The act only deprives the party of his priority of survey, on such warrant.</p>

In Error. ERROR to the Common Pleas of Luzerne county, in an ejectment brought by Fisher Gay against David Perkins, for a part of a lot lying in the 2d division of Kingston township, Luzerne county. . t The plaintiff below claimed title to the premises in dis-' pute, under a certificate granted in pursuance of the act of 4th April, 1799, on the 16th January, 1804, to Philip Jackson and Elijah Shoemaker, for lot No. 3, in the 2d division of Kingston.township, containing 42…

In Error. ERROR to the Common Pleas of Somerset county. ; • , ) 1 . l 1 l “ This was an action of trespass quare clausum fregit brought by Bechtel against Rhoads for entering upon his land, and cutting and carrying away trees. The plaintiff gave in evidence a warrant for the land, dated Sls't December, 1814, and a receipt for the purchase money on.that day; a survey on the 16th March, 1815, and a patent, dated the 26th April, 1815.

In Error.' ERROR to the Court of Common Pleas of Somerset county, in which a bill of exceptions was returned.

In Error. ERROR to the Common Pleas of Westmoreland county, and bill of exceptions.

In Error. THIS was a writ of error to the Court of Common Pleas, of Indiana county, in an ejectment, on which a bill of exceptions was returned to the charge of the Court.

In Error. ERROR to the Common Pleas o.f Allegheny county. The single question in this case was,'whether the wages of a bar-keeper in a tavern are to be considered asservants’ wages, so as to entitle him to a preference under the intestate law. of the 19th April, 1794, sect.14. . ' Courts have restricted the term “ servants” used in the act, to persons employed in the house, and about the intestate’s person.

In Error. ERROR to the Court of Common Pleas of Westmoreland county, in an action, of covenant• The testator, Robert McGuire, by articles of agreement, dated 1st March, 1813, covenanted to sell and convey to A. Hamilton certain lands; in consideration whereof, Hamilton covenanted to pay him 300 dollars by certain instalments.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Allegheny county.</p> <p>Overstreet appealed to the Court below from an award of arbitrators appointed under the act of 20th March, 1810. The plaintiff moved the Court to strike off the appeal, but they refused the motion.</p>

In Error, ERROR to the Common Pleas of Cumberland county. This was an ejectment by James Fenton and wife, the plaintiffs below, against Elijah Galbraith and Alexander Watt. The evidence which was given on the trial in the Court below was placed on the record, and by that it appeared, that Samuel Galbraith, deceased, had conveyed sundry tracts of land to his sons, Elijah, John, and William, by several deeds, dated about the 8th May, 1810.

In Error. ERROR to the Common Pleas of Franklin county. brought this action of covenant to January Term, 1801, in which the. first count of the declaration set forth, “ that whereas… Held: that on a conveyance of land with a covenant of warranty, the grantee may recover without eviction, by suit: he may give up the land, if the title is not good; but he gives it up at his peril, and must prove that he yielded to a better title. They cited also Chipman’s Rep. (Vermont,') 68.

In Error. ERROR to the Common Pleas of Cumberland county, in an ejectment brought by the lessee of Robert, William, Ezekiel, and Mark Dunning, against Elizabeth and James Carothers, in which a bill of exceptions was returned to the charge of the Court.

<p> In Error. </p> <p>ERROR to the Court of Common Pleas of Cumberland county.</p>

• In Error. ERROR to the Court of Common Pleas of Adams county. Henry Slobaugh, the plaintiff in the Court below, brought an action of debt on a single bill for 100 dollars, against Isaac Sadler. The single bill was given for a horse, sold by the plaintiff to the defendant, and the debt, including interest, would have amounted to more than 100 dollars, but the ; defendant gave in evidence the plaintiff’s warranty of the horse, and a breach of the warranty.

<p>If in a deed of bargain and sale, the premises convey an estate(i to the grantees or any of them, their or any of their heirs or assigns,” and the habendum «to them, their heirs and assigns for ever,” the grantees hold as tenants in common.</p>

<p>A writ of error takes effect from its delivery to the prothonotary of the Common Pleas,not from the time of its issuing.</p> <p>In computing the twenty days within which a writ of error is not permitted on an award of arbitrators, either the day of filing the award, or the day of filing the writ of error, is excluded.</p>

In Error. ERROR to the Court of Common Pleas of Adams county, upon a homine replegiando, in which the question • was, whether a negro woman, Belinda, the plaintiff below, was duly registered under the act of 1st March, 1780. In the Court below judgment was given for the plaintiff.

In Error. ERROR to the Common Pleas of Franklin county, and bill of exceptions. Samuel Dryden, sen., commenced this action by issuing a summons in debt founded on assumption for money had and received, money laid out and expended, and money lent, not exceeding 1500 dollars, against Samuel Purviance and Samuel Dryden, jun. The summons was served on Purviance only, and he alone appeared.

<p>In ejectment, immediately on the plea of not guilty being put in, the cause is ready for trial, without any formal joining of issue.</p> <p>No other plea than not guilty can be pleaded in ejectment.</p>

In Error. THIS was a writ of error to the Common Pleas of Bedford county, in the return to which the Court of Common Pleas of Bedford county sent up the record of a domestic attachment, by virtue of which the property of the plaintiff in error was seized by the sheriff, and delivered to trustees, appointed by the Court, under the act of 4th December, 1807. moved to quash the writ of error, on two grounds. 1.

In Error. ERROR to the Court of Common ERROR to the Court of Common Pleas of Bedford county. brought this action of covenant against John Dickey and William Ward, founded on articles of agreement.

<p>In Error.</p> <p>ERROR to the Court of Quarter Sessions of Hunting-don county, to remove an indictment and conviction o&forcible entry.</p> <p>The only question was, whether the following description in the indictment, of the land into which the defendants entered, was sufficient. A certain close of two acres of ara- “ ble land, situate in Shirley township, in the county afore- “ said, being part of a large tract of land adjoining lands of “ Andrew Dimond and Henry HoshelD’ The Court below had arrested the j udgment. ■</p> <p>The descriptions in indictments in general, are not more " certain than the present. [He then referred to fourteen precedents of indictments in similar cases in Huntingdon county.] The land could not be otherwise described, except by course and distance; which it is not in the power of a prosecutor to obtain, as the defendant may keep possession by force and prevent the obtaining of a survey. It is sufficient, if the description be as precise as is required in an ejectment. Hawk. b. 1. c. 64. sect. 37. And if the prosecutor is restored to the wrong land, the Court will rectify the error.</p> <p>The description of two acres, part of a large tract, is too general. It is not said to whom the large tract belonged. If restitution were awarded, the sheriff cannot know where to make it. In ejectment the notes of the- Judge will shew to what land the plaintiff proved title, and relief in a summary way will be given. But here the prosecutor may elect any two acres in the tract he pleases.</p>

<p>In an award the sum for which judgment is to be entered must be expressJy mentioned, or reference made tosome- ’ thing extrinsic by which it may be ascer~ • tained.</p>

In Error. ERROR to the Court of Common Pleas of Cumberland county, in an ejectment brought by Janies Martin and others against John Youst and others. Both plaintiffs and defendants claimed under James M’-Lene, who, on the 23d March, 1793, entered into articles of agreement for the sale of the land in dispute to John Martin, deceased.

In Error. THIS was a writ of error to the Common Pleas of Adams county, in an ejectment brought by Hugh Dunwoodie against James Reed, in which judgment was given for the defendant, upon a special verdict. devised as follows, by his will, dated the 29th October, 1771. “ Then with respect to my real estate or plantation “ whereon I now live, (describing it,) with all other my “ rights and claims unto lands, I give and bequeath the same, “ with all its appurtenances unto my…

THE plaintiff sued the defendant for trespass quare clausum fregit, and taking away money and goods. The case was arbitrated under the act of 20th March, 1810, apd 250 dollars were awarded to the plaintiff. After the award was filed, the plaintiff filed a declaration laying the damages at more than 500 dollars. ' ■ moved the Court to ; stay proceedings, on the ground that the matter in controversy did not amount to 500 dollars, and therefore the Court had not jurisdiction.

In Error. ERROR to the District Court of the city and county of Philadelphia. had brought an action, and i obtained judgment, against a certain James Oellers, and in ‘ ord'.-f to obtain a stay of… Held: that after the principal has been taken on a capias ad satisfaciendum, no other execution lies. Here it is not the discharge we rely on, but we contend, that taking the body is a satisfaction of the debt. He also cited, Cro. Jac. 320. 3 Wils. 17. 2 Binn. 218. 382.

In ERROR. ERROR to the District Court of the city and county of Philadelphia, in an action on the case brought by Peterson against Sicard., in the Court below, which was arbitrated under the act of 20th March, 1810.

Ejectment. THIS was an ejectment for 37 acres of land, in Pas-syunk township, Philadelphia county, m which a case was stated for the opinion of the Court, as follows : Theodorus Lord,, being seised… Held: that S, took an estate tail, though the estate was charged with 100 pounds, payable to D, within one year after G, or his heirs, should be possessed of the same premises.

New Trial. THIS action was brought to July Term, 181,?,. and was tried at the Nisi Prizes, on the 15th November last, before Tilghman C. J. The plaintiffs were legatees and residuary devisees under the will of George Schlosser, deceased, and in order to recover in this action it was necessary to prove, that John G. Schlosser, was dead without issue.

In Error. ERROR to the Court of Common Pleas of Philadelphia county. The defendant in error, obtained judgment against the plaintiff in error, before an alderman, on the 1st March, 1817. On the 21st March, 1817, the plaintiff in error, appealed to the Court of Common Pleas; but the appeal was dismissed by the Court, on the ground that it was not entered within the time required by law.

<p>The plaintiff, on taking ont a writ of summons,may proceed to arbitration, though the summons is not served.</p>

<p>With inaccuracies of a Judge, in summing up the evidence, this Court has nothing to do.</p> <p>If the defendant acknowledge the principal debt but disputes the interest, it takes the debt out of the statute of limitations.</p> <p>If the defendant occupied land by the consent and permission of the plaintiff, the jury may presume a promise to pay a .reasonable rent.</p> <p>Assumpsit lies here for the use and occupation of land in Jersey. This action is founded on privity of contract, not on privity of estate.</p> <p>An action for rent by the lessor against the lessee, is transitory. So is covenant by the assignee oí the reversion, under the statute of 32 Hen, 8. c. 84; but debt by an assignee of the reversion, is local.</p>

In Error, ERROR to the Court of Common Pleas of Philadelphia county. This was an action on the case brought by Fuller, the plaintiff below, against Donaldson. The declaration contained but one count for work, labour, and services, and materials found. .The plea was non assumpsit.

In Error. '/ERROR to the C • 1 , . • ( • . ' THIS was an action of trover, brought by the defendants in error, plaintiffs below, for the conversion of a quantity of stone and gravel. It appeared in evidence, that the plaintiffs and their predecessors, had been long in possession of a church, and a small parcel of land adjoining it. Part of this land was inclosed and used for a burial ground, ever since the year 1727; the remainder was uninclosed.

CASE STATED. . James Hamilton, was seised in fee,, in his life-time, of two undivided third parts, and Andrew Hamilton, of one undivided third part of a tract of land, adjoining the city… Held: that if a covenant be made to two, and one dies, the survivor must bring the action. It is well established, that tenants in common have an action jointly Co. Litt. 198. a. and if they make a lease the action is in both their names. Lit. sect. 316. 1 Selw. N. P. 405. 5 Sm. Laws, 395.

1. Previously to the application made by George Rex to award an inquest, &x. a writ of partition had been issued at the suit of another of the heirs, out of the District Court for the city and county of Philadelphia, which writ, and the proceedings thereon, are still depending in said Court. 3. No notice of the application to the Orphans’ Court was given by George Rex, to the widow and other heirs.

<p>Award.</p> <p>THIS case was argued by Browne and Rawle, for the ■ plaintiffs, and Chauncey and Binney, for the defendant.</p>

CASE STATED. This cause, which was an ejectment, was submitted to the Court on a case stated. A certain Jeremiah Hornketh, the younger,- was entitled to the land in dispute, as administrator of his deceased father, Jeremiah Hornketh, under a lease to the latter, dated the 28th November, 1812, for the term of seven years.

<p>Where a levy on land is made by virtue of a fieri facias, after which an inquisition is held, and the land condemned, and a venditioni is issued, but countermanded by the plainiiff, who receives the debt and costs of the defendant, the sheriff is entitled to the same commissions as if the land had been sold.</p> <p>The sheriff is entitled to thefeeof three dollars for summoning* the iury, takjng the inquisition, and making return thereor; but be is not entitled to $ l 50 more, tor making the levy; nor to % 1 20 for notifying the defendant of the time and place of the inquisition.</p>

<p>conrts'andto make repairs 0f the state ^ake" these rooms venient, at"1" the expense ot the county, notwithstandi)e.n?u oi're‘ pairing the state house ammmttf the Under the act of 13th March, 1815, the county commissioners were authorised to repair the rooms of the Supreme</p>

In Error. ERROR to the District Court of the city and county of Philadelphia. was collector of the port of Philadelphia, and in that capacity, recovered the amount of a forfeiture, directed by the act of Congress, under which it was recovered, (1st March, 1809,) to be distributed in the manner prescribed by the 9th section of the act of Congress, passed 2d March, 1799, to regulate the collection of duties on imports and tonnage.

New Trial. THIS was a replevin for 631 barrels of flour, tried before the Chief Justice, at Nisi Prius, in November, 1817, when the jury found a verdict for the plaintiff, subject to the opinion of the Court in bank, on a point reserved. The plaintiff, on the 9th March, 1813, contracted to ship 631 barrels of flour on board the Minerva, a Spanish vessel, of which the defendant was master, from Philadelphia to Savanna, at 4 dollars a barrel.

In Error. THIS was a writ of error to the Common Pleas of Lehigh county.

<p>A court martial cannot be held under the sole authority of the Governor, for the trial of militia •who neglect or refuse to attend at the place of rendezvous, in conformity to the orders of the Governor, founded on the requisition of the President of the United States. A court martial cannot be held under the sole authority of the Governor, for the trial of militia •who neglect or refuse to attend at the place of rendezvous, in conformity to the orders of the Governor, founded on the requisition of the President of the United States. A court martial cannot be held under the sole authority of the Governor, for the trial of militia •who neglect or refuse to attend at the place of rendezvous, in conformity to the orders of the Governor, founded on the requisition of the President of the United States.</p> <p>The 3d sect, of the act of 19th March, 1816, does not extend to suits brought The 3d sect, of the act of 19th March, 1816, does extend to onife Vinílfl(Vl\f The 3d sect, of the act of 19th March, 1816, does not extend to suits brought hpfnrp thi» nf»s before the passage of that act.</p> <p>Query, If the provision in that section relative to actions of trespass, is not subject to tbe proviso, that they are constituted under the authority of the United States, or of this state ?</p> <p>Though a party charged has appeared before a court martial, and confessed his guilt, he is not thereby estopped from contesting its jurisdiction.</p>

Mandamus. THIS was a rule to shew cause, why a mandamus should not issue, directed to the defendants, commanding them to draw an order on the county treasurer,, in favour of the relator, the sheriff of the city and county of Philadelphia, for '505 dollars and 44 cents.

New Trial. THIS was an action upon a policy of insurance, tried before Duncan J. at Nisi Prius, in which a verdict was taken for the defendants, subject to the opinion of the Court on the points reserved. The declaration contained a count for money had and received. The policy was on goods shipped in the schooner Emily, and the plaintiff on the trial claimed for a loss and gave evidence of it.