Volume 3 — Watts's Pennsylvania Reports

WRIT of error to the court of common pleas of Alleghany county. This was an action of ejectment, brought in the court below to November term 1819, by the defendants in error, to recover the possession of three hundred acres of land, situate in Pine township on the head waters of Pine creek west of the Alleghany river. Both parties claimed by virtue of settlements, alleged to have been made on the land in dispute, under the act of the 3d of April 1792.

<p>WRIT of error to the court of common pleas of Mleghany county.</p> <p>This was an action brought by William Blackstock and George Blackstock, partners trading under the firm of William Blackstock & Co., against Jacob Beltzhoover, in which a verdict and judgment were rendered in favour of the plaintiffs below. The action was brought to recover the amount of two promissory notes, drawn on the 24th of November Í828, by Henry Holdship and Son, in favour of and indorsed by Jacob Beltzhoover or order, and delivered by the makers to Thomas Hind; one for 1016 dollars payable in ninety days, and the other 1020 dollars and 33 cents payable in one hundred and twenty days. Hind transferred these notes to Blackstoek & Co. before they became payable; and the payment of about 1100 dollars of the notes was resisted in this suit, on the ground that the notes exceeded, to that amount, the sum due to Hind by the makers. The remainder was admitted to be due, and is stated to have been since liquidated. To introduce evidence to this effect, the defendant offered to prove that Blackstoek & Co. had notice, before they received the notes from Hind, that the defendant alleged a want of consideration as to the notes, and they therefore stood in the situation of Hind himself; and also that Hind was the real plaintiff in this suit, and the plaintiffs only agents or trustees for him. To establish this defence the defendant proved that tire notes were lodged at the Branch Bank of the United States in Pittsburgh by Hind, for collection, on the 26th of November 1828, and were withdrawn by him on the 3d of February 1829 ; that it was not usual to withdraw notes from that bank and deposit them for collection in another; that Hind gave no reason for withdrawing them, and Blackstoek &' Co. never kept an account there. On the 5th of February 1829, the notes were, placed for collection in the Bank of Pittsburgh, by Blackstoek & Co., where they remained till they were protested at. maturity. On the 3d of February 1829 a notice was published in the Pittsburgh Gazette, as follows :</p> <p>“ Caution. — The public are cautioned against taking by indorsement, or otherwise, two certain notes, drawn on the 24th day of November 1828 by H. Holdship and Son, one for 1016 dollars payable in ninety days, and one for 1020 dollars and 33 cents payable in one hundred and twenty days after date, to Jacob Beltzhoover or order, and given to Thomas Hind. The drawers have a legal and just defence against said notes, which they will insist bn whenever attempt shall be made to enforce the payment thereof.</p> <p>“ Henry Holdship and Son.”</p> <p>William Blackstoek at this time lived in Alleghany town, and was a subscriber to the Pittsburgh Gazette : his paper was regularly sent to the Alleghany Bridge, and no complaints were made of its not being received. Hind was told of the advertisement the day it appeared.</p> <p>The defendant then proved the service of a notice on the plaintiffs previous to the trial, calling on them to produce the books of Thomas Hind, and various other documents; and also a notice to the plaintiffs, that the defendant intended to show on the trial that no.valuable consideration was received for the notes in question, except as to the amount admitted in the affidavit of defence ; and that the want of consideration would appear by reference to the aQcounts, copies of which they then furnished, and also by reference to Hold-ship’s books, and the bboks of Thomas Hind.</p> <p>The defendant then offered the following evidence that the notes in question call for the sum of about 1100 dollars more than was due to Thomas Hind at the time they were given : that as to this sum the defendant received no consideration. The defendant proposed further to prove by circumstances, that as to the sum last mentioned, the notes include a debt of J. H. Lambdin to Thomas Hind, which the defendant never agreed to pay, and did not know to be included in the notes until shortly before this publication in the Gazette. Among a great variety of facts tending to make out this defence are the following : that defendant is nota book-keeper himself, nor acquainted' with the science and business of book-keeping ; that his boobs at the paper mill in Pittsburgh were kept by Thomas Hind himself, and his books at his store kept by other clerks ; that his business was very extensive and multifarious; that he confided altogether in his clerks to keep and settle his books; that at the instance of Hind, in the absence of the defendant Henry Holdship, and before the late partnership of Holdship and Son was commenced, defendant was charged in the books at the store as debtor to Hind' with two notes; that the defendant never gave such notes; that they are not entered on his bill book; that the notes were never seen by the defendant or his clerks at the book store. Defendant will show by strong circumstantial evidence, that they were given by J. H. Lambdin for his own debt, and then charged to defendant, the said Lambdin being insolvent. Defendant will show that the said Lambdin, at the time these notes were given by him, was a clerk in the employ of H. Holdship, and was guilty of many frauds against him ; that between him and Hind there was a very marked intimacy. H. Holdship having lately associated his son, a young man, in his business, the new firm became responsible for the debts of H. Holdship. The account of Thomas Hind was balanced by the clerk at the book store, and the notes signed by the son of H. Holdship and indorsed by defendant for accommodation, without any investigation or understanding of the account by Holdship or his son.</p> <p>This evidence was rejected and a bill of exceptions sealed.</p> <p>In the course of the trial the defendant called on John M’Donald, Esq. who, being sworn as a witness, stated that he was president of the Bank of Pittsburgh ; that he knew all about the assignment and transfer of these notes, but having been the attorney of the parties in interest and consulted by them, he knew it professionally. The defendant then proposed to ask him, whether Hind was not the real plaintiff; whether Blackstock & Co. were not stakeholders; and who was his client in this suit. These questions were objected to by plaintiff and overruled by the court, and exception taken.</p> <p>The following errors were assigned.</p> <p>1. The court erred: in overruling the questions proposed to the witness John M’Donald, Esq. .</p> <p>• 2. In rejecting the testimony offered as set forth at length in the bill of exceptions.</p>

- In an action of slander, in which the plaintiff in errpr was the plaintiff below, the declaration set forth, that the Rev. C. G. Schwerger Barth, the defendant, uttered the following words of the plaintiff as a minister of the gospel: “ That it was against the will of Mrs Boyer, the widow of the Rev. John Boyer, and that if he [the Rev. Daniel Rahauser meaning] said he [meaning the said Rev. Daniel Rahauser] preached the funeral sermon, he [meaning the said Rev. Daniel…

<p>An execution issued upon an award made in a proceeding under the act of 1705 before a judgment was entered upon it, is void; and a sale of the defendant’s real estate to the plaintiff, by the sheriff, on such execution, confers no title.</p>

WRIT of error to the court of common pleas of Alleghany county. This was an action of assumpsit, instituted against James Gibson, and founded on what are popularly called promissory notes for the delivery of pig metal, given by Gibson, jointly and severally with Thompson M’Kean, to the plaintiffs belovv.

WRIT of error to the court of common pleas of Alleghany county. This was an action of assumpsit brought by Richard Boyce for the use of Benjamin Temple against John Wilkins, Jun. On the death of the defendant below, his administrators were substituted. The facts of the case were briefly these.

<p>Managers and officers do not form an integral part of a corporation. An omission to elect them at the time appointed by the charter, will not dissolve the corporation: its functions may be suspended thereby, and restored by subsequent elections..</p> <p>A judgment of a justice against a plaintiff, on the merits, from which he appeals to the common pleas, and discontinues his suit, is a bar to any other for the same cause of action.</p>

This was an action of ejectment brought by the plaintiff in error in the court below against the defendant., to recover the possession of a messuage and lot of ground fifty feet in width by two hundred feet in length, situate in a village called “ Georgetown,” in Mercer county. Both parties professed to derive their respective claims to the land in dispute from George Sheakly, who was admitted to have been the owner of it.

This was an action for a malicious prosecution by James Cotton against H. I. Huidekoper. Cotton had been indicted for an assault and battery with intent to kill Huidekoper, and the grand jury returned the bill “ ignoramus,” and this suit was instituted.

<p>ERROR to the common pleas of Alleghany county.</p> <p>This was an action of covenant by Henry Shrum for the use of Thomas Astley against Robert Campbell. On the 2d of January 1805, Thomas Astley and James Gibson sold, by articles of agreement, a tract of land to Henry Shrum, the plaintiff On the 27th of September 1814, Henry Shrum entered into an agreement, under seal, with Robert Campbell, to convey to him the same land, in consideration of the sum of 34Í dollars and 75 cents, “subject to the payment of all the purchase money and interest, now due on an article of agreement between Thomas Astley and James Gibson of the one part, and the said Shrum of the other part, dated the 2d of January 1805.?’ On the 1st of August 1821, Shrum executed a mortgage to Gibson to secure the balance due on his purchase. Campbell being in possession under his purchase, Shrum procured the legal title from Astley, who was invested with Gibson’s interest., and made a tender of it to him, and demanded the payment of the money due to Astley, which Campbell refused to pay, and this action of covenant was brought to compel the payment. The defendant pleaded non est factum, and- covenants performed. On the trial the plaintiff offered in evidence a deposition, taken upon a notice, a copy of which had been left at the defendant’s house with his son. It was objected to on the ground that that was not a good service of notice. The objection was overruled and exception taken. The defendant relied upon these positions as constituting his defence : that the plaintiff was guilty of laches and was too late in endeavouring tio enforce the contract; that the mortgage to Gibson was an incumbrance on the land; that he had entered into no covenant such as was set out in the plaintiff’s declaration; that the clause in the agreement on which the plaintiff rested his claim to recover was-not a covenant by the defendant, but a condition, which could only be enforced by a proceeding in rem.</p> <p>The court below (Shaler, president) ruled all the points against the defendant.</p> <p>The jury rendered a verdict for 2446 dollars and 65 cents damages, in favour of Shrum, to be released by the payment by Campbell of the purchase money to Astley in one year, or by Campbell otherwise fulfilling the contract between Shrum, and Astley and Gibson; but no execution to issue until satisfaction was entered on the mortgage: the deed from Shrum to Campbell to be left in court to be taken out by Campbell upon his payment of the damages or performance of his contract.</p>

<p>WRIT of error to the court of common pleas of Mleghany county.</p> <p>This was an action of assumpsit, brought by George Wells, the defendant in error, against the plaintiffs in error, Linton Rogers, George W. Taylor, impleaded with Hiram Kauntz, Jacob Harbaugh and David Moody, owners of the steamboat Lark, to recover the value of fifty barrels of flour, which were received from the plaintiff below on board the boat by Kauntz, the captain and part owner, who failed to render an account of the disposition or.proceeds of the property. ,</p> <p>The plaintiff below gave in evidence, on the trial, articles of agreement, showing the ownership of the defendants. Amongst other things, it is stipulated that “ each owner shall draw .his equal share of the profits of the running and work done by her, according to the amount of stock which he may hold.” There is nothing in the articles in relation, to the authority of the captain, or to the owners’ liability for his acts.</p> <p>The account, and a receipt for the flour by Kauntz, were offered in evidence, and objected to by the defendant’s counsel. The objection was overruled, and an exception sealed.</p> <p>Samuel M’Donald; a witness on behalf of the defendants below, testified that he was the clerk on board the Lark. He did not know of any partnership between the defendants except, as owners of the boat. They did not do business together as merchants. The fifty barrels of flour were got by Kauntz from Wells. The other owners 0/the boat had no knowledge of the .transaction. Witness did not kno'W of the owners of the boat giving Kauntz authority to purchase flour oF any other commodity. The flour was not purchased for the use of thv° boat, and was not used on board the boat. It was taken to Louisvilú?- The witness did not know to whom it was there sold, or given. Wn!ei1 the flour was got, the witness had been on board two or three week?- The flour was sold by Kauntz. Witness did not know at how Per barrel. Kauntz stated he purchased</p> <p>mackerel with the price .of it. The boat, had not full freight without the flour. There was no entry in the boat book showing what became of the flour. Wells haa more or less freight every trip.</p> <p>The court below charged the jury, that the contract or agreement Of Kauntz, the captain’ and part owner, was binding upon all the defendants, without regarid to the custom or course of trade; and this direction was the error complained of,</p>

<p>To give effect to the statute of limitation, the possession of an occupant, by a colourable title, is co-extensive with his title ; but the possession of an avowed intruder is confined to the land actually occupied by him.</p> <p>An entry upon a tract of land which had been previously appropriated by warrant, survey and patent, a possession of it for twenty-one years, and the payment of taxes during that time, is a good title to the whole tract.</p>

<p>ERROR to the common pleas of Mercer county.</p> <p>This was an ejectment brought by the heirs of Nathan Patterson deceased, the defendants in error, against Lodge and Lodge, who put in the plea of Not guilty, and took defence for the undivided four-sevenths of two hundred acres, being the shares of Andrew Patterson and three others, heirs of John Patterson deceased, who owned and died seised of the tract. The plaintiffs proved that Nathan Patterson deceased bought an improvement right from Thomas Laughead, and paid 500 dollars for it; stating that the purchase was made for himself and his brother John. Laughead, when he sold, had a cabin on the south east end of the tract; some grain in the ground, and from six to eight acres cleared. Nathan Patterson deceased, went on the land in 1802, and in 1803 put up a new house on another part of the tract, in which he remained till his death about the year 1812, claiming and paying taxes for the whole tract. His family have lived on it ever since, paying the taxes. After moving into the new house, in 1803, Nathan leased the old cabin to a tenant. In 1802 or 1803, a survey containing three hundred and ninety-five acres was made for Nathan.</p> <p>The defendants then produced John Chambers, Esq. asa witness, who testified that John and Nathan came out together. While the witness lived with Nathan in 1803, Nathan showed him the division line and the part which John was to have, which was the south side. He showed where the division line would have been, if John had lived. He said they held the tract between them. In 1806, Nathan said he was going over the mountains and would get some of John’s money to renew his store. He told wiiness, after John’s death, he had bought Lodge’s part of John’s share, and was paying it out of the store, and wanted to have a settlement with him that- fall. The witness heard Nathan say he had got the share of Mary, who died.</p> <p>Andrew Christy testified that after'John and Nathan came out and settled on the tract, Nathan began to improve on the north end, and John on the south end; that one end was called Nathan’s and the other John’s; that Nathan lodged at John’s until John’s death in February 1803; that Nathan said he and John were partners. John had property which Nathan sold after his death at public vendue, and which amounted to from 200 to 400 dollars. The notes at the vendue were taken in Nathan’s name. Nathan set up the two hundred acres called John’s, and bought them in himself. After Nathan’s death that end of the tract w.as commonly unoccupied.</p> <p>The defendants then offered as a witness Nathan Patterson, Jun., a son of Andrew Patterson deceased, and grandson of John Patterson deceased, and therefore an heir at law of the said John Patterson. His testimony was objected to, and rejected by the court below, to which the defendants’ counsel excepted.</p> <p>The following, amongst other points, were submitted to the court below by the defendants’ counsel:</p> <p>2. That if the jury believe Nathan Patterson originally entered on the land as one of the heirs at law of John Patterson, and purchased the right of some of the co-heirs, the statute of limitations does not run against the other heirs of John Patterson deceased until there is an express ouster.</p> <p>3. That as one of the heirs of John Patterson deceased, Nathan had a right to enter on the land, and his so entering is not an adverse possession to his co-tenants in common ; and getting a survey made in his own name, paying the taxes, receiving the profits, and even setting up the land for sale and buying it in himself, unless express notice is brought home to his co-tenants of these acts, they are not such as will oust his co-tenants so as to leave the statute of limitations to run between them.</p> <p>On these points the court below (Shippen, president) decided against the defendants.</p> <p>The following errors were assigned.</p> <p>1. In rejecting the evidence offered in the bill of exceptions.</p> <p>2. In not charging as the defendants requested in the defendants’ second and third points.</p> <p>3. In charging that if one tenant in common enters on and takes-the profits of the whole, and claiming the whole originally, for twenty-one years, the jury may and ought to presume an actual ouster, and it is not necessary to prove an actual ouster or express notice to the other heirs.</p> <p>4 In charging that Nathan Patterson having the land of his brother John set up and sold at vendue, and purchasing it himself, would be a circumstance entitled to weight, as to his having after-wards entered and held the land adversely to the title now set up as a defence.</p>

<p>To set off one judgment against another is not a legal power, nor is its exercise demandable of right: it is discretionary, and the propriety of its exercise cannot be questioned upon a writ of error.</p>

<p>WRIT of error to the court of common pleas of Alleghany county.</p> <p>This was an action of ejectment brought in the court below, to January term 1829, by the heirs of Samuel Scot!, the defendants in error, against John Watt, to recover a lot of ground situate in Pitt township. On the trial of the cause it was admitted that Samuel Scott, the father of the defendants in error, anterior to 1814, died seised in fee of the lot, and that it thereupon descended to them as his heirs at law. The plaintiff in error derived his title to the lot from James Jelly, who, in 1814, bought it at a sale made by the administrators of the deceased, under a decree of the orphan’s court of Alleghany county. The administrators made a return of the sale and their proceedings to the next orphan’s court after the sale took place. The purchase money, being 851 dollars, was paid by Jelly to the administrators. They executed a deed of conveyance to him, and he took possession of ihe lot shortly after. Since that time he and those claiming .under him have had possession down to the present. No objections appear on the record of the orphan’s court to have been made at any time to the sale. Nor was any irregularity alleged to exist in the proceedings and sale, except that the sale, upon its being returned to the orphan’s court, did not appear, from any entry made to that effect on the records thereof, to have been approved and confirmed by the court. This was the only objection raised against the sale;. and upon this ground the court beiow directed the jury that no title passed under it to Jelly. The court below, among other things, was requested to instruct the jury, that if a confirmation of the sale by the orphan’s court were held necessary to give validity to it, after so great a lapse of time, payment of the purchase money, execution of the deed, and possession of the lot under it, the confirmation ought to be presumed by the jury, as no objection appeared on the record to have been made against the sale, nor any shown to exist that could have justified the orphan’s court in setting it aside. This however the court refused to do.</p> <p>Two errors were assigned.</p> <p>1. That the court erred in charging the jury that without a confirmation of the sale no title passed.</p> <p>2. That the court erred in charging the jury that there were no facts in this case from which a confirmation could be presumed, and in taking away from the jury all power of passing on the facts of the case.</p>

<p>WRIT of error to the court of common pleas of Jilleghany county.</p> <p>This was an action on the case for a malicious prosecution, brought by Robert Finney against Nathan G. Campbell, the plaintiff in error, to recover damages under the act of 1705, which enacts that “ if any person, &c. shall be imprisoned or prosecuted without probable cause, he shall have double damages against the informer- or prosecutor, to be recovered by an action at common law.” The plaintiff below in his declaration counted on the statute, and the jury found a general verdict for the plaintiff for 450 dollars damages. The defendant below moved for a new trial, which motion was overruled by the court, who directed judgment to be entered for 900 dollars, double the amount of damages found by the jury. The plaintiff in error alleges that the court below erred in rendering judgment for double the amount found by the jury. ■</p>

<p>ERROR to the common pleas of Butler county.</p> <p>Michael Owen and James Parker, the plaintiffs in error, were plaintiffs below, and brought this action of ejectment against William Simpson, the defendant in error, to recover a tract of land containing two hundred acres.</p> <p>The following was the case stated for the opinion of the court below:</p> <p>W. W. Fetterman obtained a judgment, No. 47 of July term 1826, in the common pleas of Butler county, against William Simpson and Thomas Simpson, for 35 dollars, with costs amounting to 14 dollars and 4¿ cents, entered from the 1st of April 1826. On the 4th of July 1826, a precipe for a fieri facias, on this judgment, was given to the prothonotary, which was filed as No. 2 of October term 1826 by the prothonotary on the day after ifs date. A fieri facias then issued which was indorsed as follows : “ No. 2 of October term 1826, W: W. Fetterman v. Thomas Simpson and William Simpson', fieri facias, debt 35 dollars, interest from the 1st of April 1826and a statement of the costs, 14 dollars and 4-| cents. The body of this writ purported. to be a fieri facias in the Commonwealth v. John Stevenson, for a debt of 45 dollars and 26 cents. Under this fieri facias a levy was made on the tract in dispute as the property of the defendants, an inquisition held, and the property condemned, as appears from the return indorsed. On the execution docket at No. 2 of October term 1826, regular reference is made to the original suit, No. 47 of July term 1826. The levy was also correctly docketed. A venditioni exponas, W. W. Fetterman v. Thomas Simpson and William Simpson, then issued, No. 59 of April term 1828, on which the land was returned sold to Michael Owen and James Parker on the 11th of April 1828, for 22 dollars and 50 cents, to whom a deed was executed by the sheriff and duly acknowledged. If the court should be of opinion that the sale was good, and that the fieri facias No. 2 of October term 1826 could be amended, then judgment to be entered for the plaintiffs; otherwise judgment for the defendant.</p> <p>On this statement of the case the court below (Bredin, president) directed judgment to be entered for the defendant; which is now assigned for error.</p>

WRIT of error to the court of common pleas of Venango county. This was an action of slander brought by Frederick Kahle, the defendant in error, against the plaintiff in error, Lee Tipton.

<p>In an action to recover back purchase money paid for a tract of land, on the ground that the Vendor had no title, having previously sold it to another, that other person is a competent witness for the plaintiff to prove the payment of the purchase money by him, and that he was in possession under his purchase.</p>

<p>A deed cannot be given in evidence until some interest is shown to have existed in the grantor.</p> <p>The plaintiff in ejectment must recover on the strength of his own title; and where an outstanding title, better than his own, is shown, he must fp.il to recover.</p> <p>When the defendant claims under one to whom the plaintiff had assigned his interest in a treasurer’s deed for the same land, the plaintiff will not be estopped from claiming under a better title subsequently acquired.</p>

<p>Upon a question as to the credibility of a witness, the certificate of the clerk of the sessions that he had been elected constable, is inadmissible, both as to the fact itself and the evidence to establish it.</p>

<p>ERROR to the common pleas of Alleghany county.</p> <p>Assumpsit was brought by Warden, Arthurs & Co., the defendants in error, against Johnston and Rhodes, the plaintiffs in error, to recover the value of castings for ploughs furnished by them at their foundry to the plaintiffs in error.</p> <p>At the trial Abraham Nicholson was produced and sworn as a witness on behalf of the plaintiffs below, who testified that he was in their employ. After the castings were got and taken down the river, the witness went to Zanesville, where he-saw Rhodes. Rhodes asked the witness if the plaintiffs below had said any thing about pay for the castings. Here Johnston’s counsel objected to any evidence being given of what Rhodes said to the witness about Johnston being his partner, or any statements made to the witness' by him relative to the matters in controversy, as no proof of partnership between the defendants had been given. This objection the court below overruled; to which the counsel of Johnston tendered a bill of exceptions. The witness then testified to the admissions of Rhodes of the existence of the partnership.</p> <p>John Arthurs, one of the plaintiffs below, was then produced, and proved the book produced to be their book of original entries, and the absence of the clerk who made the entries. The book containing charges for castings against Johnston and Rhodes, which solely constituted the plaintiff’s cause of action, was then offered in evidence and objected to by Johnston’s counsel generally; and especially, as furnishing evidence that castings were made for, and delivered to Johnston and Rhodes, and as evidence of partnership between them. These objections were overruled by the court below, and the book was admitted generally; whereupon the counsel of Johnston tendered a bill of exceptions.</p> <p>Johnston’s counsel then offered to prove, by a witness, that.he had heard both Johnston and Rhodes say that Rhodes was indebted to Johnston at the time castings were furnished; and offered also in evidence the insolvent petition of Rhodes in which he had returned Johnston a creditor, to rebut the declarations of Rhodes as proved by Abraham Nicholson, and as evidence that Rhodes had given ploughs to Johnston in payment of said debt. To the admission of this testimony the plaintiff’s counsel objected. The court below sustained the objection: to which the counsel of Johnston excepted.</p> <p>The court below in their charge, by Shaler, president, instructed the jury, that if A contracts with B to deliver articles at a specified period, and if in the intermediate time B and C enter into partnership, as upon such a contract it is to be presumed that payment is to accompany delivery,- if credit is given' at the time of delivery, it must be presumed to be done upon the credit of the partners; and this, whether the existence of the partnership was known tó the plaintiff who gave the credit, or not; if the existence of the partnership was known at the time, no doubt could be raised; but if a credit be given where there is a secret partner, the credit is supposed to be given as well to him as to those associated with him, upon the ground that as he is entitled to the profits, so he in equity should be responsible for loss in the present case.</p> <p>The following, errors were assigned.</p> <p>1. The court erred in admitting evidence of what Rhodes, one of the defendants below, said about Johnston being his partner, before any proof of partnership had been given.</p> <p>2.. The court erred in admitting plaintiff’s book containing charges against Johnston and Rhodes, which constituted plaintiff’s sole cause of action, without having first proved partnership between the defendants.</p> <p>3. The court erred in rejecting evidence offered by defendant Johnston, of indebtedness of defendant Rhodes to said Johnston at the time castings were furnished.</p>

<p>APPEAL from the circuit court of Butler county.</p> <p>This was an ejectment by Samuel A. Gilmore against John Thompson and others to recover a tract of land.</p> <p>The plaintiff had a legal title for the land. The defendants relied upon a sale of the land to them by the treasurer for taxes. In answer to which, the plaintiff proved that the tax for which the land had been sold to the defendants had been paid previously to the sale. The only question which arose in the case was, whether the defendants were entitled to recover compensation for improvements made on the land by them after their purchase ? The court instructed the jury in the affirmative; and this was the ground of appeal.</p>

<p>In an action of ejectment, it is not competent to give evidence of the parol declarations of the plaintiff, that he had abandoned a title which he had acquired under a deed.</p> <p>A witness is incompetent when the effect of his testimony may he to preserve a fund for the payment of a debt due to himself.</p> <p>A certificate by a third person of the amount of a debt due by him to the defendant, is not admissible in evidence to affect the plaintiff’s rights. The debts must be proved by the usual evidence of their existence.</p>

WRIT of error to the court of common pleas of Jlllcghany county. The Pittsburgh and Steubenville Turnpike Road Company brought this action against George A. Dorman, the plaintiff in error, for tolls incurred by him whilst a stage proprietor.

<p>ERROR to the common pleas of Alleghany county.</p> <p>This was an ejectment for part of lot No. 219, on Wood street, in the city of Pittsburgh. The plaintiff, Andrew N. M’Dowell and wife, claimed to recover the possession of the property, as heirs of William Porter deceased, by virtue of certain proceedings in partition, in the common pleas of Alleghany county, instituted on the 17th of August 1829, and perfected on the 25th of April 1831, between them and llie other heirs of William Porter, viz. Alexander Brackenridge and wife, Samuel Smith and wife, and William A. V. Magaw and wife. By these proceedings the property in dispute was assigned to the plaintiff.</p> <p>On the trial of the cause, Alexander Brackenridge was offered as a witness on behalf of, the defendants, and objected to by the plaintiff. The objection was overruled by the court, and the witness admitted ; to which the plaintiff’s counsel excepted.</p> <p>The witness then testified that he was the only heir residing in Pittsburgh. On the 1st of April 1824, without any power of attorney, he renewed leases for a term of three years for the property which then was, and continued until the 25th of April 1831, to be held in common amongst the heirs. He collected the rents as they became due: On the 1st of April 1827, he again, without any power' of attorney or instructions, renewed the leases for three years. This was acquiesced in by the plaintiff, to whom the witness always remitted his share of the rents, keeping with him a regular account. On the 1st of April 1829 the witness renewed leases for the property for one year. As the 1st of April 1830, when these leases were to expire, approached, he made a proposition to all the heirs, and, by letter dated the 14th of January 1830, to the plaintiff, to build upon the property joiutly, or to give a lease of it for seven or ten years; and, in case they should conclude to build, that a lease for one year had better be given in order to make arrangements. To this proposition he received no positive answer from the plaintiff; who agreed, however, by letter dated the 19th of February 1830, to the suggestion to rent for one year. The witness, considering that this reply to his proposition amounted to no specific instruction, that as a part owner of the property he was entitled to an answer to the whole of bis proposition, and that every thing stood in the same position as before, then executed on the 1st of February 1830 a lease under seal for seven years to John Wallace, under which the defendants now claim to hold possession, and which was signed by him as “Attorney for William Porter’s heirs.” He leased without exhibiting any authority to the tenants, who took it for granted that he possessed it. The plaintiff removed to Pittsburgh during the summer of 1830, where he has resided from that time up to the present. The witness went on as usual, collecting the rents as agent for all tire heirs, which he paid over from time to time without keeping' a particular account, sometimes taking a receipt for the same, and sometimes not. He had also charge of a judgment against Anthony Bulen, owned by the heirs. On the 17th of September 1830 the plaintiff gave him a general receipt for 200 dollars on account of this judgment. Under the old leases the annual rent of the property was 476 dollars 50 cents; under the new lease for seven years, 801 dollars 62 cents. On the 3d of December 1831 the plaintiff gave the witness a'general receipt for 265 dollars 92 cents, who did not know whether the plaintiff was aware at what rate he was receiving rent. In December 1831 the witness left a general account of rents and moneys paid and received in the course of his agency, at the office of the plaintiff. The witness had conversations with the plaintiff as to the dissatisfaction which Magaw, another heir, had expressed about the lease for seven years. The plaintiff then expressed no dissatisfaction on his part about the lease, of which he seemed to have a knowledge. The witness had informed the plaintiff of the lease by letter directed to Lewistown or Harrisburg, to which, however, he received no answer from the plaintiff. The witness distrusted his own authority to make the lease, but- relied upon the acquiescence of the other heirs. He became aware that Magaw was, and then expected that the others would also be, dissatisfied. Since the trial with Magaw, the witness discovered that the plaintiff was not satisfied about the lease, although he had. never expressed dissatisfaction to the witness. The witness never told the plaintiff of the lease, but conversed with him repeatedly about it as a matter existing.</p> <p>Dr Samuel Smith, one of the heirs, testified, that he removed to Pittsburgh on the 1st of November 1830. The first time the plaintiff mentioned to him the lease for seven years, the plaintiff expressed his astonishment that it had been executed. The increased rent was never a subject of conversation between them. The plaintiff uniformly expressed to the witness his determination to have possession of the property as soon as the partition should be confirmed, thinking it useless to proceed until then. The witness was satisfied that the plaintiff, who lived with him at Lewistown at the time, never received a letter apprising him of the lease for seven years. Both of them supposed it would be for one year. A long lease was not thought of by them. He never heard the plaintiff say that he was satisfied with the lease, but heard him telling a tenant he would have to go out.</p> <p>The lease for seven years was then read in evidence, to which the plaintiff’s counsel excepted.</p> <p>It was further proved on the trial that after the lease was executed, a new pavement was laid, and the buildings were repaired by the tenant.</p> <p>The following errors were relied on by tbe plaintiff in error.</p> <p>1. The court erred in permitting Alexander Brackenridge to be sworn and examined as a witness.</p> <p>2. The court erred in admitting in evidence the lease signed “A. Brackenridge, attorney for the heirs of William Porter” to John Wallace, dated the 1st of February 1830.</p> <p>3. The court erred in not instructing the jury in the manner requested by the counsel for the plaintiff on the several points submitted.</p>

<p>ERROR to the common pleas of Jllleghany county.</p> <p>This case is identical with the preceding, with the exception of a slight shade of difference in the facts, which is pointed out in</p>

This was a scire facias upon a mechanic’s lien, instituted by the defendants in error against James B. Morgan, who was sued with Jean Barbeau, for work done and materials furnished in the erection of a steam saw-mill on the premises of Morgan,' in the Northern Liberties of Pittsburgh.

WRIT of error to the court of common pleas of Alleghany county. This was a scire facias upon a mechanic’s lien, brought by Robert Wallace against James Tilford, the plaintiff in error. The lien was filed against a brick house “ situate on an eminence between the Pittsburgh and Greensburgh turnpike, and the village of Lawrence-ville.” The scire facias recited the words of the lien, as to the situation of the building.

<p>The notice required by the act of 1772 to be given to a justice previously to a suit against him, must set forth clearly and explicitly the cause of action on account of which the plaintiff claims amends.</p> <p>It is not necessary that a debtor should have absconded for the space of six days from his place of usual abode with a design to defraud his creditors, in order to authorize the granting of a doihestic attachment against him.</p> <p>The' oath to ground a domestic attachment should pursue the terms of the act of assembly; to use in it the alternative, that the debtor “has absconded from the county, or does evade civil process,” renders it defective.</p>

This was an ejectment for a tract of fifty-one acres of land, brought, by Samuel Jack against John Dougherty and James Dougherty. John Dougherty, one of the defendants, was admitted to have been originally the legal owner of the land in dispute.

WRIT of error to the court of common pleas of Mleghany county. The plaintiffs in error were the plaintiffs below. The case was an ejectment brought for the recovery of a tract of land containing one hundred and fifty acres.

<p>ERROR to Westmoreland county.</p> <p>This was an action of ejectment by George W. Trout against Joseph Stokely to recover the possession of a lot of ground, under the facts which are stated in</p>

WRIT of error to the court of common pleas of Jllleghany county. This was an action of ejectment for four-hundred and fifty acres of land, in which William Nickle, the plaintiff in error, was the plaintiff below. He claimed as one of the heirs of John Nickle deceased, and as alienee of the other heirs, by deed dated the 25th of March 1826.

<p>Where the warrantee of a tract of land north and west of the rivers Ohio, &c. has failed to make a settlement and improvement within the time required by the act of the 3d of April 1792, and an actual settler, entering without a vacating warrant, made the improvements required by that act, continued in possession until 1817, and in other respects did all that was required to obtain a title under the commonwealth, but for a time had left the possession, it is held that there was no implication of a contract between the settler and the warrantee, or an equity arising out of these circumstances, which would in any manner entitle the settler to recover any part of the land.</p>

This was an action of debt, brought by William Docherty against Samuel Stevenson and James Taylor, on a recognizance to prosecute a writ of error. The plaintiff below entered a rule of reference under the compulsory arbitration law. At the meeting of the arbitrators there was no attendance or acquiescence on the part of the defendants. An award was filed in favour of the plaintiff for the amount of the recognizance, and judgment thereon entered.

THIS was an action of trover, brought in the common pleas of Alleghany county, by the defendants in error against Frederick Rapp. Palmer and Mills were merchants residing at Parkersburg, Virginia, on the Ohio river. They employed one Blinn, who had charge of a keel boat, to carry a quantity of corn, to be delivered to Hugh M’Shane at Pittsburgh.

This was an action of ejectment brought by Michael Allen against William M’Masters and Alexander M’Kee, the defendants in error, to recover a tract of land on Chartier’s creek, containing one hundred and thirty-two acres. The plaintiff deduced a regular title from the commonwealth to James Richardson for the tract in dispute.

<p>L. executed and delivered to W, a deed in fee simple, for a lot of ground in consideration of a certain sum of money; and at the same time W. executed and delivered to L. a covenant, that he would reconvey the same to him upon the payment of the same amount of money within one year. Held, that these papers constitute a mortgage, and are to be so construed, although it appear by parol that the parties did not so intend it.</p>

The appellant, Thomas Livingston, assignee of Samuel Stevenson, instituted an action of trover against William Bell, Jun., John Alexander and Thomas Stevenson the appellees, to recover certain bonds, notes, book accounts and merchandize of the value of 50,000 dollars. The plaintiff claimed the property by virtue of an assignment made to him by Samuel Stevenson under and conformably to the insolvent laws, and dated the 24th of November 1832.

<p>Since the passage of the act of the 6th of April 1830. a judgment against one of two defendants, upon whom alone process has been served in an action upon a note, is not a bar to a subsequent action on the same note against the other defendant, upon whom process was not served; although an execution had issued upon the first judgment from the justice before whom the judgment was obtained.</p>

WRIT of error to the common pleas of Mleghany county. This was an action of ejectment brought by William Robinson and others, heirs of John Wilkins deceased, the plaintiffs in error, against Ruth Hopkins, to recover lots No. 49 and 50 in the plan of the town of Alleghany. The plaintiffs exhibited a deed from Matthew Ernest to John Wilkins, for the lots in question, dated the 16th of May 1797, acknowledged before James Robinson, Esquire, and recorded on the 27th of May 1799.

The following is the substance of the case as stated for the decision of the court below. William M’Donald was constable of Ohio township for the year 1830. On the 19th of April of that year he gave bond, with the defendants in error as his sureties, to the commonwealth, in conformity with the twenty-ninth section of the act of the 20th of March 1810 and its supplements, conditioned for the just and faithful discharge of his office.

The plaintiffs in error were plaintiffs below. It was agreed between the parties that an amicable action in case should be entered, and that all matters at variance should be referred to Walter Forward and W. W. Fetterman, Esquires, who, in case of disagreement, were to choose a third referee; that the said referees should meet on ten days notice by either party; that the said referees should, in their report, state the facts of the case; that upon this report the…

<p>By a forbearance in general, without adding any particular time, is to be understood a total forbearance. And he who promises to pay the debt of another, in consideration of such forbearance, is not liable to pay it if the original debtor has been sued.</p>

James Manown, the defendant in error, brought, an action of trespass guare clausum fregit against the plaintiffs in error, to prevent them from landing.with ferry boats and passengers on his land. A public road passes through Manown’s farm to the edge of the Monongahela river. Chess owns the land on the opposite side, and keeps a ferry. Manown contends that Chess has no right to land his passengers at the end of the road terminating at low water mark on Manown’s land.

<p>ERROR to the common pleas of Mleghany county.</p> <p>M’Ginn, the defendant in error, was the plaintiff below, .and brought this suit before an alderman (o recover the price of a wheel furnished by him to Alexander. The suit was taken, by appeal from the .judgment of the alderman, to the common pleas, where the plaintiff filed a declaration in assumpsit. The defendant pleaded non assumpsit, payment and set off, with leave to give the special matters in evidence; which plea was, subsequently, on motion, withdrawn, and a plea in abatement filed, that the promises and undertakings alleged in the declaration, if made at all, were made jointly with two other individuals still living.</p> <p>The court thus charged the jury.</p> <p>“The defendant has pleaded in abatement, that he was, at the time of the transaction, a partner with others in the purchase of the property for which this action is brought, and that the purchase was made on behalf of the partnership. The question of the existence of a partnership is submitted to the jury ; but how far the defendant can avail himself of it, if it did exist, as alleged, is matter of law. If the plaintiff, at the time of the sale knew nothing of the partnership, and gave credit to the defendant individually, although the article purchased was for the use of the firm and was applied to the partnership concern, I conceive that the plea of co-partnership cannot avail the defendant. The true criterion is not whether, the partnership existed, but whether the plaintiff had knowledge of it, and gave credit on the responsibility of the partners jointly, or on that of the defendant personally. If on the responsibility of the firm, the plea is sustained and the action defeated ; but if on the individual responsibility of the defendant, the plaintiff must recover; and of this you are to judge.”</p> <p>Verdict and judgment were rendered for the plaintiff.</p> <p>Errors assigned.</p> <p>1. There was a mis-trial, there being no replication to the plea in abatement.</p> <p>2. The court erred in instructing the jury, that the true criterion was not whether the partnership existed, but whether the plaintiff had knowledge of it, and that, although the article purchased was for the use of the firm and was applied to the partnership concern.</p>

In a suit in the common pleas, in which William Aslin was plaintiff, and Samuel Hamilton, the plaintiff in error, was defendant, Aslin.recovered judgment. Hamilton took out a writ of error to the supreme couit, by whom the judgment was reversed, and a venire de novo awarded. Aslin paid the costs incurred in the supteme court, and took down the record to the common pleas, where the cause was again tried, and a verdict and judgment rendered in his favour.

WRIT of error to the common pleas of Alleghany county. This was an action of ejectment brought in the court below to April term 1831, by Algeo, the defendant in error, to recover the possession of a lot of ground, No. 9, on the plan of the Garrison lots, situate in the city of Pittsburgh, bounded by Liberty and Hand streets.

This was an issue directed by the court to try the right to money made by the sheriff out of the sale of the real estate of Joseph Ford ; in which John M’Kee was plaintiff, and Robert Gilchrist defendant. Joseph Ford having' been the owner of the land, on the 18th of February 1820 conveyed it to his father Alexander Ford. On the 9th of March 1820 the judgment of the plaintiff, John M’Kee, against Joseph Ford, was obtained.

<p>An amicable action was instituted before a justice of the peace for a sum exceeding 100 dollars, and was submitted to referees, who awarded 300 dollars in favour of the plaintiff. In lieu of the award the parties made a compromise for 240 dollars, for which sum judgment was entered by the justice by mutual consent. Held, that the judgment, thus entered, was a bar to a subsequent action brought for the same subject matter.</p>

<p>ERROR to Armstrong county.</p> <p>This was an action of ejectment by Wilson Jack against Mary Crest, Thomas Blair and others, to recover the one undivided tenth part of a house and lots of ground in the borough of Kittaning.</p> <p>Samuel Jack and John Crest were the owners as tenants in common of the lots and house which were the subjects of controversy; Samuel Jack died intestate, and his estate descended to his four brothers and one sister, Matthew, Henry, William, Wilson and Mary. Thomas Blair intermarried with a daughter of Mary,'who was the widow of John Crest, went into the possession of the lots, and by the permission of some of the tenants in common built a house upon them. There,^vas no evidence of any consent of Wilson Jack, the plaintiff, but on the contrary the proof was that he and Blair were not on good terms: they did not speak to each other. It was proved that Wilson Jack, the plaintiff, was in Kittaning when the house was being built, and gave no notice to Blair to'desist, nor made any objection. The defendants therefore contended, that he was not entitled to recover without reimbursing Blair his proportion of the moneys expended in building the house. But the court (Young, president) was of a different opinion, and instructed the jury that thé plaintiff was entitled to recover, and they found a verdict accordingly.</p>

Ejectment by Henrietta Dracourt against Charles Yan Bonhorst, Hugh Toner and Mary Wusthoff. The case depends entirely upon the construction of a clause in the will of Peter Magnier deceased; and is an ejectment for the two lower rooms of a three story brick house in the city of Pittsburg.

<p>ERROR to Westmoreland county.</p> <p>This was an action of debt upon a single bill by Henry Beems against John Clifford and Thomas Clifford. Beems had been a tenant and resided upon the land of James O’Harra; during his term he sold property to the defendants, John and Thomas Clifford, and took the note upon which this suit was brought for the amount. Beems removed from the property in April 1829, and the two Cliffords succeeded him as tenants, and the property they purchased being in their possession on the land until April 1830, the landlord distrained it for rent in arrear by Beems, and sold it. This was set up as a defence by the Cliffords to the payment of their note; and the question which arose was, whether the distress was legal. The court below (Young, president) was of opinion that the landlord had no right to distrain the property, and therefore the matter offered was not available as a defence; and this opinion was assigned for error.</p>

<p>ERROR to Fayette county.</p> <p>This was an action of trover by Joseph Bixler against Wilson Clement. On the trial,'of the cause the plaintiff proved that he had assigned all his interest in the claim for which the suit was brought, produced the prothonotary’s receipt for all costs which had accrued, offered George D. Stevenson as security for all costs which might accrue, who was admitted to be sufficient security ; and then the counsel offered Joseph Bixler, the plaintiff, as a witness, who was objected to by the defendant and admitted by the court, who sealed a bill of exceptions at the instance of the defendant. The'plaintiff recovered for the use of the person to whom he transferred his claim, and a fieri facias was issued for the amount of the judgment with full costs. The errors assigned were in the admission of the plaintiff as a witness, and in the execution for costs which had been paid by the plaintiff below.</p>

<p>Where due notice of a commission, regularly obtained, to take the deposition of a witness has been given to a party who fails to file cross interrogatories within the usual time, and waits until the commission is executed and returned, he cannot then, without an order of court and previous notice to the other party, take out a commission to “ cross-examine” on “ cross interrogatories” filed, and embrace in them leading questions to the witness.</p>

WRIT of error to the court of common pleas of Alleghany county. This was an action of ejectment for twelve acres of land, brought by Sarah Stewart, the defendant in error, against Robert Stewart and another, the plaintiffs in error. Title was admitted to have been in John Stewart deceased, the husband of'the plaintiff and father of the defendants below, for the whole tract of .which the ground in dispute is a part.

This was an action on the case, by George W. Howard against Daniel Bemus, a physician, for negligence and want of skill in his profession, by reason of which the plaintiff lost his leg. There had been a former trial of the cause, in which Francis Ross had given evidence, and he was called again on this trial and gave evidence.

George W. Taylor and Linton Rogers hired a steamboat to William Srodes and Henry J. Beer, by charter party dated the 22d of of November 1830, from the day of its date until the 1st of July following, at 225 dollars a month.

This was an action of ejectment by Vincent Owens against Isaac Vanhook and Elisha Hunt for a lot of ground in the town of Bridgeport. In the year 1815 the property in question was assessed as a house and lot for a tax of 42 cents, as the property of Elisha Crane, and was put into the collector’s duplicate of seated lands. The assessor was called as a witness, and proved that the lot was vacant and unimproved in 1815.

This was an appeal from the judgment of an alderman, before whom Hiram Badgley, the plaintiff in error, had recovered a claim for wages as the keeper of a billiard table for George Beale, the defendant in error.

WRIT of error to the court of common pleas of Alleghany county. The following was the case stated for the opinion of the court below, to be considered as a special verdict, with leave to either party to take a writ of error. An action on the case for consequential damages was brought by Hughey against Kennedy, before justice Beltzhoover, who entered judgment for Hughey for 30 dollars and costs of suit.

This was an action of trespass m et armis brought by Stokely, who was plaintiff below, against the plaintiff in error. The nan. set forth, generally, that the defendant below, Robinson, had committed an assault and battery on the plaintiff. On the trial the plaintiff produced several witnesses who testified to the fact of an assault and battery, and as to the extent of the injury inflicted.

WRIT of error to the court of common pleas of Alleghany county, in a suit upon a promissory note brought by Elderkin Potter, the plaintiff below, against John H. Irwin, the defendant below, in which a verdict and judgment passed for the plaintiff below.

This was an action of assumpsit by John Willet against William Willet to recover the price of a gun and a horse. The testimony exhibited the facts, that the gun aud the horse were in the possession of the defendant, and were claimed by the plaintiff.

George Aiken and James Chedwick, executors of David Aiken deceased, who were the plaintiffs in this suit, obtained a judgment before a justice against James Ross and George M’Combs, upon which an execution issued to John Parchment, the defendant, who was a constable, and which he did not return within twenty days.

This was an action of ejectment by Cornelius Comegys against Louisa Carley and Job Carley, for eighty-five acres of 1 and. The plaintiff and defendants were owners of adjoining surveys, the respective titles to which were indisputable; the difficulties arose out of a question of boundary.

WRIT of error to the court of common pleas of Washington county.

The plaintiff in error was plaintiff below, and instituted an action of replevin against the defendant for one sorrel horse of the value of 150 dollars. The property was replevied. The defendant pleaded property and claimed the horse under a purchase at constable’s sale, by virtue of an execution issued by the defendant against a former owner. The jury rendered a verdict “ for the defendant, 28 dollars and 75 cents.” A motion was then made by the plaintiff for a new trial.

This was an action of debt on a bond, brought by William Smith and wife, formerly Fanny F. Wrenshall, against James Gray, the plaintiff in error.

<p>ERROR to the common pleas of Jllleghany county.</p> <p>This was a scire facias brought in the name of the Commonwealth for the use of Nancy Knox and Samuel Davis against John M’Masters, owner of lot No. 393 in the city of Pittsburgh.</p> <p>It is enacted by the act of the 7th of April 1832, that the court of common pleas of Alleghany county, on petition, should appoint fifteen or more freeholders to decide whether an alley, which it was intended to open, or which had been opened, from the Diamond to Fifth street, in the city of Pittsburgh, was necessary for public use. If necessary, the act directs that they shall proceed to lay out the same for public use, &c. and assess the damage done to any lot or lots (taking into consideration the advantages accruing, as well as the injury done), and shall apportion the damages separately upon the lots, or parts of lots benefited, according to a fair estimate of the benefit conferred on each lot, and designating the person to whom such damage is done and payable. Freeholders were appointed in pursuance of the act, who made report the 30th of July 1832, which was confirmed the 6th of July 1833. By the report, the viewers decided that the alley was necessary for public use; they also found for Nancy Knox 800 dollars, and for Samuel Davis 212 dollars 50 cents, as a compensation to the said Nancy Knox and Samuel Davis for lots and other properly taken for the purpose of opening said alley, the whole amounting to the sum of 1012 dollars 50 cents. These damages, so assessed, the viewers apportion upon the owners of certain lots, designating them, benefited by the alley: and, among others, they assess the sum of 300 dollars on lot No. 393, owned by John M’Masters, the defendant in the scire facias. On the 6th of April 1833, which is since the report, but before the confirmation of the report of the viewers, the legislature directed, that the damages assessed and apportioned by the viewers appointed by the act of the 7th of April 1832, &c. shall, if approved by the court, &c. be a lien on the premises on which damages are assessed. The act further directs the manner of recovering the damages by scire facias in the name of the commonwealth. The plaintiffs have brought a scire facias, reciting the above facts, to which the defendant has demurred, and assigns as cause of demurrer, that the acts of the 7th of April 1832 and the 6th of April 1833 are unconstitutional and void.</p>

The action below was instituted upon the official bond of Jacob Hanson, as one of tbe auctioneers of the city of Pittsburgh, against the plaintiff in error, John D. Davis, his surety. The claim upon which the cause of action is founded, arose out of a transaction be, tween Dr John T. Stoxe deceased, and Hanson, on the deposit of a quantity of books, &c. left with Hanson to be sold at auction.

<p>A scire facias upon a recognizance of bail on an appeal, must recite the suit pending and the authority of the justice of the peace to take the recognizance ; it is, otherwise, defective, and there can be no recovery against the defendant on it.</p>

<p>Where there was an amicable submission to two arbitrators, who, in connexion with a third to be chosen by the two, were to decide whether certain work done by the plaintiff’s was in conformity with their contract, and whose decision was to be binding and conclusive between the parties, and the two arbitrators, without the concurrence of a third, made an award in favour of the plaintiffs for extra work, evidencé of the submission and award was properly rejected on a subsequent trial between the parties.</p> <p>Unliquidated damages, arising from deficiency in the performance of a contract for the erection of a building', may be given in evidence as a set-off against the plaintiff’s claim under a mechanic’s lien, but will not authorize the jury to find a balance in favour of the defendant. A certificate to that effect, found by the jury, will be quashed, while the judgment upon the finding is faultless, and will not be reversed.</p>

WRIT of error to the common pleas of Alleghany county. The defendant in error, Francis Irwin, was the plaintiff in the court below, and brought this action against the plaintiff in error, Thomas Collingwood, for a breach of covenant of warranty of title to a tract of land, which the latter had sold and conveyed to the former, by his deed bearing date the 29th of February 1820, and containing a covenant of general warranty.

' This was an amicable action of ejectment, in which David Gilleland was plaintiff, and James M’Kelry was defendant in the court below, and was brought to recover a tract of land containing twenty-eight acres.

The plaintiff in error, William Cubbage, was the plaintiff below, and brought an ejectment to recover from the defendant, Thomas •Nesmith, part of lot No. 44, on Penn street in the city of Pittsburgh.

This was an action of debt brought by John Verner, the defendant in error, to recover from Matthew B. Lowrie, Esq., an alderman in the city of Pittsburgh, the penalty of 50 pounds for marrying a son of Verner, who was a minor, under the age of twenty-one years» ‘without a license or the consent of his parents. The plaintiff below offered in evidence a notice apprizing the defendant. that suit would be brought against him in the common pleas.

<p>Judgment cannot be entered on an award made under a submission by parol, out of court, and not restricted to matters in variance in the cause. Such an award can only be enforced by action.</p>

<p>Comparison of handwriting is evidence in a suit for a libel, where it goes in corroboration of other evidence tending strongly to prove the handwriting of the libel to be that of the defendant.</p> <p>Depositing a libel (which was in the form of an anonymous letter) in the post-office, where it was mailed and despatched, together with the fact of its production by the plaintiff on the trial, is sufficient evidence of its publication, without the oath of the person to whom it was addressed, who, living out of the state, was out of the jurisdiction of the court.</p>

This suit was originally brought by the defendant in error, Alexander Long against Thomas Jones, the plaintiff in error, before an. alderman, to recover the price for which he had contracted to dig coal for Jones, by whom an appeal was taken from the judgment of the alderman.

<p>ERROR to the common pleas of Mleghany county.</p> <p>The defendant in error was the plaintiff below, and brought against Margaret Colwell an action of assumpsit for money had and received under the following circumstances. Colwell leased to Peden a house for one year from the 1st of April 1833, at the same time contracting to make certain repairs before that day. Peden was to pay 100 dollars per annum, of which 25 dollars, the last quarter’s rent, was to be paid by him in advance on his taking possession, as a continuous security, and the balance monthly. Peden entered and continued in possession, paying the monthly rent until July, when Colwell issued a warrant of distress to enforce the payment of the 25 dollars stipulated to be paid in advance, which was collected by the officer executing the warrant. Peden then abandoned the premises, alleging as a reason, the want of repairs and the presence of a nuisance, and immediately instituted an action before a magistrate for the 25 dol•lars thus paid, who rendering judgment in favour of Colwell, Peden appealed to the common pleas.</p> <p>Error assigned.</p> <p>The court erred in charging the jury that the money paid under the landlord’s warrant could be recovered in an action for money had and received; that the plaintiff was not bound to resort to trespass or replevin.</p>

WRIT of error. This was an action of trespass by John Clugh against Robert Criswell and others, for tearing down his mill-dam in Toby’s creek. The defendants justified themselves on the ground that the stream was a public highway, and the dam was illegal.

This was an action of covenant, in which George Smith was plaintiff and Thomas Ligget defendant, below. It was brought on articles of agreement, dated the 13th of September 1830, by which the plaintiff below undertook to build the brick work of a warehouse for the defendant.

<p>ERROR to the common pleas of Alleghany county.</p> <p>This was an action of trover and conversion by James Morgan against George W. Taylor, in which the plaintiff thus described the note which was the subject of the action. “ That whereas the said James heretofore, to wit, &c., at &c. was lawfully possessed as of his own property of a certain promissory note in writing, made and drawn by one William Williams, whereby he, the said William .Williams, promised to pay to the said James Morgan a certain sum of money, to wit, the sum of 29 dollars, at a certain time therein mentioned and now past, &c.”</p> <p>And the plaintiff to support the declaration offered iu evidence a paper in these words.</p> <p>“November 2d, 1825.</p> <p>“ Due James Morgan 29 dollars, value received, for work done by him.</p> <p>“William Williams.”</p> <p>The defendant objected to the evidence on the ground of variance between it and the declaration, but the court overruled the objection and sealed a bill of exception. The court (Shaler, president) instructed the jury that the measure of damages was not confined to the amount of the note and interest, but they might also allow additional damages for the detention, if they believed the circumstances of the case justified it. This was assigned for error.</p>

<p>To my friend I, my executor, I give and bequeath all my two hundred and fifty shares of capital stock which I hold in the Union Bank of Pennsylvania, together with such interest as may have accrued thereon from the last dividend immediately preceding my decease, as also, &c., all which I give and bequeath to my said executor in trust to and for the use of my two grandsons, to wit, H and J, to be transferred and paid unto them when they shall respectively arrive at the age of twenty-one years, or to their legal representatives. Held: that this is a specific legacy, which is extinguished by a sale of the stock in the lifetime of the testator.</p> <p>The annihilation of a specific legacy, or such a change in its state as makes it another thing, annuls the bequest, for reasons paramount to considerations of intention.</p>

<p>WRIT of error to the court of common pleas of Jllleghany county.</p> <p>This suit was instituted by Samuel Young against Thomas Taylor and James Taylor, composing the firm of James Taylor & Co., the plaintiffs in error, to recover the amount of the following draft, ®r order, of which Young was the holder.</p> <p>“$169 20. Pittsburgh, August 27th, 1825.</p> <p>“Pittsburgh Iron Manufacturing Company,</p> <p>“Please pay to Samuel K. Page & Co., or order, 169 dollars 20 cents for value received, which' charge to account of</p> <p>“Yours</p> <p>“James Taylor & Co.”</p> <p>Indorsed — “ Samuel K. Page & Co.”</p> <p>By an article of agreement, dated the 15th of January 1825, a partnership was formed between Samuel K. Page and James Taylor & Co. of the one part, and the Pittsburgh Iron Manufacturing Company of the other part, for the purpose of carrying on the business of the latter company. On the 12th of August 1825, James Taylor & Co. published a dissolution of their connection with the Pittsburgh Iron Manufacturing Company in the Pittsburgh Gazette, to which Young was at the time a subscriber. On the 2d of September 1825, Page published a notice of bis retirement from the some company. On the 25th of March 1826 there was a dissolution of a partnership between Samuel K. Page and James P. Stuart; and on the 28th of the same month the failure of Page became known. At this period, and for some time after the failure of Page, who was indebted to Young, Yoimg was absent. After his return he received an assignment of the order from Page, and presented it for payment to the agent of the Pittsburgh Iron Manufacturing Company, by whom payment was refused. It was not proved on the trial that notice of the presentment and non payment had been given to the drawers previous to the institution of suit. The praecipe for the suit was dated the 9th of May 1826. Previous to the date of the order there had been dealings between Young, as a member of the firm of George Young & Co., and the Pittsburgh Iron Manufacturing Company. At the time the order was drawn, and for some months after,, the drawers had funds in the hands of the last named company.</p> <p>On behalf of the plaintiff below the following points were submitted to the court.</p> <p>1. That the fact as proved, that James Taylor & Co. were, at the time of giving the order, partners in the firm upon which it was drawn, is sufficient and a waiver of all additional notice of non acceptance or non payment by, or presentation to, the drawees.</p> <p>2. That sufficient evidence has been given, of previous dealings between the parties, to have rendered it necessary on the part of the defendants to show actual knowledge of the holder of the bill (the plaintiff), of the dissolution of “the Pittsburgh Iron Manufacturing Company : and that an advertisement in the gazette was not sufficient notice to the plaintiff.</p> <p>The counsel of the defendants below submitted the following points.</p> <p>. 1. The plaintiff has not proved a presentation to the drawees, of the order on which this suit is founded, in due and reasonable time, and is therefore not entitled to recover.</p> <p>2. No notice to the drawers of the presentation and non payment of the draft in question has been proved, and the plaintiff is therefore not entitled to recover.</p> <p>3. The failure to present for payment the draft in question to the drawees until the 28th of March 1826, is such negligence as takes away all legal right from the plaintiff to recover in this case.</p> <p>In the charge of the court below, the cause was regarded as turning on the point, whether notice, either actual or presumptive, of the dissolution of the partnership between the drawers and the Pittsburgh Iron Manufacturing Company, had been brought home to the holder, Young, at the time he received the order. The court viewed the drawers and drawees as being, at the date of the order, in fact partners, in reference to Young: and, considering the order as purporting to be drawn by a member of the firm on the firm itself, and in the light of a promissory note, decided, that although there was great delay in presenting it to the drawees for payment, it was not binding on Young to give to the drawers notice of the presentation and non payment.. As regarded Page, in whose favour the order was drawn, there was a dissolution of the partnership at the date of the order, of which he was affected with notice. But the notice which Page had, did not extend to, or affect Young. As there had been previous dealings between Young and the Pittsburgh Iron Manufacturing Company, the notice published in the gazette was, as to him, not sufficient. Whether this notice, combined with public notoriety on the' subject, formed sufficient grounds for inferring that he had a knowledge of the dissolution, was for the jury to determine. If he had that knowledge, no matter in what manner acquired, at the time he received an assignment of the order, he could not recover. The remote period after the order was drawn, at which it was transferred to him, and then not until after Page’s failure, was a circumstance that should have put him upon inquiry ; and with reasonable prudence he might have ascertained the fact of the dissolution of partnership before the order was drawn-. If he had no knowledge of that fact at the time of the transfer, he was entitled to recover.</p> <p>The following errors were assigned.</p> <p>1. The court erred in their answers to the first, second and third points submitted by the counsel of the defendants below.</p> <p>2. The court-erred in charging the jury that the notice of the dissolution of the partnership between the defendants below and the other, members of the Pittsburgh Iron Manufacturing Company, which Page had, was not extended to Young.</p> <p>3. General errors.</p>

WRIT of error to Butler county. This was an action of covenant by Michael Sweeney against John M’Culloch, on articles of agreement for the sale of a tract of land, containing two hundred acres, by the defendant to the plaintiff. The breach assigned was, that the defendant had not made a good title to the plaintiff for the land which he agreed to sell and convey.

WRIT of error to the court of common pleas of Jlllegkany county. The following was the case stated for the opinion of the court below. The plaintiff is one of the aldermen of the city of Pittsburgh, and was, in January 1828, duly elected mayor of the said city; was reelected, and served until January 1830 in that capacity.

WRIT of error to the common pleas of Venango county. Scire facias on mortgage by Hugh Lee against Jacob Hoflman. On the 10th of March 1825, Jacob Lee gave a mortgage to Hugh Lee, on a tract of land, to secure the payment of money due Lee on three notes, amounting to about 160 dollars. There was proof that in 1826 Jacob Hoffman agreed to sell the mortgaged premises to his son John. Jacob had paid part of the money, about 80 dollars, as he alleged.

This was an action of assumpsit brought by John H. Irwin, the plaintiff in error, to recover from Samuel Workman a sum of money in the hands of the latter as sheriff of Washington county.

IN pursuance of an ordinance of the city of Pittsburgh, inflicting a penalty for forestalling upon information • to M. M. Murry, Esq., mayor of the city, William Deel was convicted and sentenced to pay a penalty of 20 dollars. And James Young, under another ordinance, was convicted of a similar offence and sentenced to pay a penalty of 20 dollars. Deel took out a certiorari and removed the proceeding to this court.

The plaintiffs in error were the defendants below, against whom Lent, the defendant in error, brought this action to recover the price of work done, and materials furnished, in the construction or repair of a steamboat, of which the plaintiffs in error were joint owners. On the trial of the cause, John White was produced as a witness by the plaintiff below, and objected to by the defendants on the ground of his being interested in the event of the suit. .

Debt on bond not exceeding 2000 dollars, by John Huber against Christian Ley’s administrators. The defence was, that the bond was given in consideration of a conveyance of land by the plaintiff to the defendant. Many questions were raised in the court below, but only one was presented to and settled by this court.

APPEAL by Samuel Bowman from the decree of the orphan’s court of Lebanon county, confirming an account settled therein by the executors of his guardian, Henry Herr. Henry Herr in his lifetime had been the guardian of Samuel Bowman, the appellant in this case, and two other of the minor children of John Bowman, who died intestate, leaving ten children, and seised of a valuable real estate.

This was an action by the Bank of Swatara against Innis Green, founded on his indorsement of a note.

<p>ERROR to’the common pleas of Dauphin county.</p> <p>This was a scire facias upon a recognizance of special bail by Samuel Boyer against John Johnson; in which the following facts were agreed to by the parties.</p> <p>Samuel Boyer, the plaintiff, sued out a capias ad respondendum in the court of common pleas of Dauphin county against a certain John Snevily, being No. 227, returnable to April term 1832, for debt on a promissory note on which bail was required in 60.0 dollars, on which the sheriff of said county made return of cepi corpus bail bond; and on the 31st of March 1832 the plaintiff filed a statement under the act of assembly of the 21st of March 1806. On the 21st of May 1832, John Johnson became bound in recognizance taken before the prothonotary in the sum of 600 dollars, as special bail of the said John Snevily. On the 9th day of June 1832, a paper signed by the said John Snevily as defendant, in the following words, viz. “ I do hereby agree to appear and confess judgment to the plaintiff in this suit for the sum of 267 dollars 89 cents, with release of errors and costs of suit, and with stay of execution to the 9th day of August 1832,” was filed with said suit, and a judgment entered thereon accordingly by the prothonotary. On the 29th of June 1832 a bail piece was issued at the instance of said John Johnson, at which time the said John Snevily was still in the county of Dauphin aforesaid, but the said bail piece was never executed or returned by the said John Johnson. On the 10th of August 1832 Samuel Boyer, the plaintiff, sued out and issued a capias ad satisfaciendum on the said judgment against the said John Snevily, being No. 104 of August term 1832, returnable on the 20th, being the third Monday of August, and the first day of the August term ; on which capias ad satisfaciendum the sheriff of said county made return non est inventus.</p> <p>This suit is brought by the said Samuel Boyer against the said John Johnson on the aforementioned recognizance by scire facias, returnable to November term 1832, No. 157 ; and it is agreed that the record of the said suit, No. 227, April term 1832, be annexed to and made part of this special verdict, containing the recognizance aforesaid, and the capias ad satisfaciendum and sheriff’s return thereon, No. 104, August term 1832.</p> <p>It is agreed that the regular terms of the court of common pleas of Dauphin county commence on the third Monday of January, ,April, August and November of each year, to continue two weeks; and that the said John Snevily prepared his petition for the benefit of the insolvent laws, sworn to in Philadelphia on the 31st of October 1832, and sent the same by mail to Harrisburg, which was filed in the court of common pleas of Dauphin county on the 19th of November 1832, as a voluntary application on the 1st day of November term: whereupon the court ordered personal notice to be given to his creditors by the said John Snevily, and appointed the 17th .of December 1832 for his hearing : and it is further agreed that the said Samuel Boyer had no notice of this application, or of the order and proceedings of the court thereon,prout the said petition and the record of the several orders and proceedings thereon, which are to be annexed to and made part of this special verdict. On the 7th of December 1832 the said John Snevily returned to the county of Dauphin, after an absence of more than five months, and on the 8th of December 1832 he was arrested at the suit of a certain Abraham Stayman, and imprisoned in the jail of Dauphin county; and while so confined, on tbe 22d of December, he, the said John Snevily, filed another petition for the benefit of the insolvent laws in said court, on which said petition he, the said John Snevily, was discharged by the said court, under the insolvent laws, on the 29th of January 1833, prout said petition and the record of the several orders of the court and proceedings thereon, which are to be annexed and made part of this special verdict. The said John Snevily was confined in the said jail at the suit of the said Abraham Stayman from the said 8th of December to the said 29th of January 1833.</p> <p>If the court shall be of opinion that the said Samuel Boyer, the plaintiff, has a right to recover on the' case above stated, then judgment to be entered against the said John Johnson, the defendant, for the surn of 267 dollars 89 cents, with interest from the 9th of June 1832, and costs of suit; but if the court shall be of opinion that tlie plaintiff is not entitled to recover, then judgment to be entered for the defendant, with costs of suit. The judgment so entered to be subject to a writ of error from the supreme court, at the instance of either party.</p> <p>The court below (Blythe, president) rendered a judgment for the plaintiff.</p>

<p>If a judgment be confessed before, and entered by, a justice of the peace, for a sum exceeding 100 dollars, the merits of it cannot afterwards be inquired into by the justice; he has no further jurisdiction over the subject.</p> <p>A transcript of a judgment of a justice for a sum exceeding 100 dollars, may be filed in the common pleas, and upon a scire facias quare execulio non and judgment thereon, an execution may issue, although there had not been an execution from thé justice, and return of “ nulla bona.”</p>

This was an action upon an insolvent bond, by (he Commonwealth against the administrators of Gowen Henry. The case presented the following facts.

This was an action of debt for a legacy of 8000 dollars under the will of Benjamin Vernor deceased, by James Vernor Henry, against the executors of the deceased.

WRIT of error to the common pleas of Dauphin county. ■ This was action of replevin by the Bank of Pennsylvania against John Wise, Thomas Elder and Jacob M, Haldeman, in which the jury found the following special verdict.

This was an action of ejectment for about the one sixteenth of an acre of land, in which George Fisher was plaintiff, and the President, Managers and Company of the Lancaster, Elizabethtown and Middletown Turnpike Road, substituted in the room of Wm. Coyle, were defendants.

<p>The duties and liabilities of trustees appointed by will, and the principles upon which they will be charged upon the settlement of their accounts.</p>

This was an action of ejectment by George Boyer and Samuel Boyer, executors of George Boyer deceased, against Jacob .Smith. All the facts and bills of exceptions are clearly stated in the opinion of the court. The cause was argued by

WRIT of error to the common pleas of Cumberland county. This was an action on the case by Andrew Frazier against Christian Miller. The declaration contained one count, for the erection of an obstruction on the land in the possession of the defendant, by which the water of Middle-spring was dammed back upon the land and mills of the plaintiff.

The facts of this case, upon which the judgment of the court was founded, are fully stated in the opinion of the court. The cause was argued by

<p>What lands are described by a warrant, must be judged of from the warrant itself, and from testimony descriptive of their local situation: the intention of the warrantee, as to the lands designed to be appropriated, is not a subject which should be inquired into.</p> <p>The testimony of a witness who is dead, or out of the state, which was given in a trial of an ejectment by one tenant in common, cannot be given in evidence in the trial of an ejectment for part of the same land by another tenant in common.</p> <p>In what cases the field notes of a former deputy surveyor, or a draft made by him, or by a person who was his known and acknowledged assistant, and when such testimony may be given as evidence of title and boundary, is here examined.</p>

The following facts were agreed by'the parties to-be considered as a special verdict.

A petition had been presented to the court for the appointment of men to view the ground for a road from the Bucks county line to the Shafferstown road, and report was made in favour of the road; to which exceptions were filed and overruled,’and the report confirmed nisi.

<p>ERROR to the common pleas of Perry county.</p> <p>This was an issue directed by the court of common pleas to try the right to money made by the sheriff out of the sale of S. Duncan and J. D. Mahon. William J. Miller was the plaintiff below and in error, and George W. Harris, administrator of R. T. Jacobs, defendant. The proceeds of the sale of Duncannon Forge, 11,500 dollars, was the subject of the controversy. The claimants were :—</p> <p>George Metzger. Mortgage of Duncan & Mahon, dated the 7th of July 1828, to secure the payment of 2000 dollars, on the 7th of July 1832. Entered 8th of July 1828.</p> <p>Anthony Stocker. Mortgage of Duncan & Mahon, dated the 12th of July 1828, to secure the payment of 4000 dollars, with interest from date, payable half yearly in Philadelphia. Entered 22d of July 1828. Under this the plaintiff claimed.</p> <p>Alexander Henry. Mortgage of Duncan & Mahon, dated the 6th of July 1829, to secure the payment of 3874 dollars 40 cents, with interest, payable half yearly in Philadelphia. Entered 22d of September 1829.</p> <p>Robert Clark. Mortgage of Duncan & Mahon, dated the 16th of April 1829, to secure the payment of two bonds of 3000 dollars each, first due the 1st of April 1832, the second due the 1st of April 1835; interest from the 1st of April 1829. Entered 9th of June 1830. This mortgage and the bonds secured by it were assigned by Clark to Jacobs, the defendant’s intestate, on the 30th day of April, A. D. 1831, and the payment of them guarantied by indorsement thereon.</p> <p>After these several mortgages were given in evidence, the plaintiff gave in evidence a deposition of J. D. Mahon, Esq.-to these facts, “ that he and S. Duncan were engaged as partners in the iron business at Duncannon Forge : .that the money secured by the mortgages was borrowed from Stocker and from Henry «i through the agency of S. Duncan, for the use of the firm of Duncan & Mahon, and was so applied : that the mortgages were the primary security for the payment of the money. When the mortgage was given to Robert Clark, he stipulated that it should not be entered on record for some time, so as that they might be able to borrow money in Philadelphia upon the security of an unincumbered estate.”</p> <p>No question arose about the right of George Metzger to have his money: the difficulty was as between Stocker, Henry & Jacobs, which was entitled.</p> <p>Stocker had, besides his mortgage, a judgment bond, of the same date, for 4000 dollars, which he entered in Philadelphia on the 16th of August 1830.</p> <p>Henry had also a judgment- bond for his debt, which was never entered.</p> <p>The judgment of Stocker, in Philadelphia, bound the real estate of Stephen Duncan in that county, which was previously subject to a mortgage of Duncan & B. Stiles, on Walnut street property, for 7000 dollars, with interest, to Daniel King : also to a mortgage of the same to Thomas Williams, on Front street property, for 4000 dollars and interest.</p> <p>The interest which Stephen Duncan had in real estate in Philadelphia, was as tenant by the courtesy of the property hereinafter mentioned.</p> <p>On the 28th of December 1832 the following notice was served on William J. Miller.</p> <p>To Clements S. Miller, Esq. attorney of William J. Miller, trustee of Mrs Mary Miller, and representative of the late Anthony Stocker, mortgagee in a mortgage executed in his favour by Stephen Duncan and John D. Mahon, esquires, upon certain real estate situate in Perry county, Pennsylvania, upon which is erected a forge and probably other improvements.</p> <p>Whereas the said Duncan & Mahon also executed a mortgage dated the 16th of April, A. D. 1829, on the same, property to Robert Clark, for the security of two bonds of 3000 dollars each, with interest,-which mortgage has been duly assigned, together with the bond to Richard T. Jacobs now deceased, and recorded in the said county of Perry on the 9th of June 1830, in the office-for recording of deeds in deed book D., volume first, page 104, &c.; but-when executed not precisely known.</p> <p>Understanding that the bond to secure which your mortgage was executed is a judgment bond, or a bond with authority-to confess judgment.</p> <p>Now, as the administrator of the estate of the said Richard T. Jacobs deceased, I hereby require you to enter your bond on record, and obtain judgment thereon, so as to bind the real estate of Stephen Duncan, situate in the city and county of Philadelphia, whether a life estate or in fee simple, or otherwise, and so that the same may be paid out of the proceeds of sale of the same, when sold; otherwise I will object to your receiving payment of the same out of the mortgaged property in Perry co,unty. This notice is not to be considered as admitting priority of payment as to your mortgage over t hat of Richard T. Jacobs deceased, on the sale of the mortgaged property.</p> <p>George W. Harris,</p> <p>Administrator of the estate of Richard T. Jacobs deceased.</p> <p>A similar notice was served on Alexander Henry by William Grimshaw, Esq. who testified on the subject as follows:</p> <p>“In the month of December 1832 I received a letter from Washington Harris, Esq. of Plarrisburg, containing a notice, which notice I served personally upon Alexander Henry, Esq. to whom the same is directed, on the 15th day of the same month. In reply toa question put by me to Mr Henry, whether or not he held a judgment bond of Stephen Duncan, as an accompaniment to the mortgage, he replied in the affirmative, and, to the best of my recollection, submitted it to my inspection. He at the same time stated to me that Mr Bayard, his attorney, was then absent at Washington, but was expected shortly to return; that he would willingly transfer the mortgage on Duncan’s property to the administrator of the late Mr Jacobs on being paid the amount; that he did not like to enter up judgment on Duncan’s bond in Philadelphia county, as requested in the above notice, without consulting Mr Bayard; but at the same time he offered the bond to me, with permission for me to enter it in said county if I chose.</p> <p>“ This offer I declined, saying to Mr Henry, to thé best of my recollection, that it would not be professionally proper for me to act as attorney for two parties; nor would it be treating Mr Bayard with due courtesy, especially as'he was so soon expected to return to the city.</p> <p>“ On Mr Bayard’s return, which, I think, was in about a week afterwards, I waited upon him at his office in Walnut street, and renewed the request to enter up judgment, in conformity with the notice, stating to Mr Bayard that Mr Henry had offered to permit me to enter it, and my reasons for declining; and also citing to him some decisions in courts of equity, which had been transmitted tome by Mr Harris, to show that Mr Henry was in this case legally required to conform, and also repeating the representation which I had made to Mr Henry as to the sum in question being nearly equal in amount to the whole provision by the late Mr Jacobs for the support of his orphan children, and my opinion that if the requisition were not complied with, the administrator would contend with Mr Henry for the distribution thereof. Mr Bayard, however, peremptorily refused to enter up judgment on the said bond, saying that he did not consider that there was any law which rendered it imperative for him to do so, or words to that effect. I have no distinct recollection as to when this refusal was given. It may have been upon a second interview, after Mr Bayard had consulted in relation to the matter with Mr Henry.”</p> <p>At .the date of these notices the liens against the estate of S. Duncan, in Philadelphia, and those .obtained subsequently, will appear by the following account of the sale of the property and the appropriation of the money.</p> <p>Benjamin Stiles agreed to join S. Duncan in a sale of the entire estate, and that Stephen Duncan should-have one half of the proceeds of the sale, and in June 1833, they conveyed the Walnut street property to Saving Fund for ' $35,000 00</p> <p>Front street property to Turner for 6,500 00</p> <p>Union street property to Malony for 4,550 00</p> <p>Deduct mortgage of Williams,</p> <p>46,050 00 4,200 17</p> <p>41,849 83</p> <p>Stephen Duncan’s half, by agreement of B. Stiles, 20,924 91 B. Stiles paid S. Duncan for his interest in the Green Hill property, 10,000 00</p> <p>30,924 91</p> <p>To which add this sum, furnished by B. Stiles, 898 48</p> <p>$31,823 39</p> <p>Which sum was applied to the payment of the following debts : Daniel King’s mortgage paid in full, $7,454 34</p> <p>Bank of North America v. Stephen Duncan. November 10th, 1830, judgment, 10,016 74</p> <p>Alexander Calhoun v. Duncan and Mahon. October 6th, 1832, judgment, ‘ 1,268 47</p> <p>David N. Mahon v. Stephen Duncan. July 27th, 1832, judgment, 2,521 75</p> <p>Hugh Boyle v. Duncan and Mahon. November 22d, 1832, judgment, 1,839 29</p> <p>Same i>. Same. Same dat^, judgment, 1,859 90</p> <p>Same v. Same. April 29th, 1833, judgment, 1,783 35</p> <p>United States Bank v. Stephen Duncan. April 11th, 1833, judgment, 1,187 76</p> <p>White and Harding v. Duncan and Mahon. May 8th, 1833, lien, 354 96</p> <p>M’Credy and Parker v. Same. May 8th, 1833, lien, 541 12</p> <p>Owen M’Gurgan v. Same. June 18th, 1833, two liens, 1,506 42</p> <p>B. Wister and Co. v. Same. June 22d, 1833, lien, 1,489 -22</p> <p>$31,823 39</p> <p>In order to enable Stephen Duncan to make title to the purchasers, William J. Miller, the successor of Anthony Stocker, released the property sold from the lien of the judgment of Stocker in. June 1833.</p> <p>Deposition of T. Mitchell, and statement of facts taken by consent and given in evidence:</p> <p>“ Thomas Mitchell, a witness on the part of the plaintiff in the above cause, being duly affirmed, doth depose and say, that he is a conveyaucer and broker of real estate in the city of Philadelphia, and has been in that occupation for thirty-three years, and is well acquainted with the general value of real estate, and the rate at which it has sold there during that period. That he negotiated the sale of the different portions of real estate, in the city of Philadelphia, in which S. Duncan had a life interest and Benjamin Stiles the reversion, and which were sold respectively to the Savings Bank, Molony,and Turner, in fee by the said Duncan and Stiles; and also assisted in the arrangement by which the life interest in the estate in the county called Green Hill, held in the same manner, was purchased by the said Stiles. Deponent further says, that the only means by which the property so sold to Savings Fund, Molony, Turner and Stiles could have been disposed of at private sale, was the release executed by William J. Miller of the judgment held by him in trust for Mary Miller; and that it could only have been otherwise sold at sheriff’s sale, inasmuch as all the other lien creditors refused to release, and an execution, at the suit of Hugh Boyle, was pending in the circuit court of the United States, on all said Duncan’s life estate in said property, and only prevented by the arrangement effected by said release. The deponent further says, that he is well convinced that the life interest in the city property would not have brought by any other mode 9000 dollars, and that in the Green Hill property 1000 dollars; and that said Stiles declined making this purchase, without he was enabled to make sale of the other property in the city.”</p> <p>Question by George W. Harris.</p> <p>“ What would the property near Frankford, in the county of Philadelphia, the property of Stephen Duncan, probably bring at public sale — or what is its value 1”</p> <p>“ This property, I think, would bring 15,000 dollars, perhaps something more or less. It had been sold to Doctor Duncan in September 1833 ; consideration 5000 dollars, subject to an old mortgage to Hannah Chancellor for 12,000 dollars.”</p> <p>B. Stiles, sworn. “ S. Duncan owned other property in Philadelphia besides that sold to Savings Fund, Malony, and Turner, to wit, houses and lots. He got 4000 dollars from me for his interest. All the estate he had.in the city he got in right of his wife. I do not believe that the interest of S. Duncan in the city property could have been sold at sheriff’s sale for a sum exceeding 8000 or 10,000 dollars. The valuation, division, sale, and my agreement to. allow' Stephen Duncan the one half, was all one transaction; and if S. Duncan’s judgment creditors had had claims beyond the amount of the sum which I allowed him for his interest, it could not have been sold. The amount I allowed him was greatly more than his creditors could have made out of it at sheriff’s sale. I should say more than double as much. This remark I apply to all the property, both in the city and county.</p> <p>“ I should say the Green Hill property was worth 100,000 dollars, and growing more valuable every day. I would hesitate about taking 160,000 dollars; The property is unproductive and brings me in debt at the end of each year. The taxes are very high, 700 dollars. Rent 1000 dollars, all paid in taxes and repairs. It did not produce a dollar to Stephen Duncan.”</p> <p>Upon these facts the court thus instructed the jury :</p> <p>“ Mr Metzger’s mortgage is not embraced in the issue ; it is first in point of lien and is not disputed. The next mortgage is from Duncan & Mahon to Anthony Stocker, trustee of Mary Miller. It is dated the 12th of July 1828, and was recorded the 22d of July 1828. This is for 4000 dollars. In the first issue, the present plaintiff, W. J. Miller, who succeeded Anthony Stocker as trustee, claims this money under his mortgage. Mr Harris, administrator of Richard T. Jacobs, controverts his right to the money ; and he claims it under a mortgage given by Duncan & Mahon for Robert Clark, the 16th of April 1829, and recorded the 9lh of June 1830, and afterwards assigned to Jacobs. If the case depended simply upon the two' mortgages, the plaintiff W. J. Miller, who succeeded Anthony Stocker, would be entitled to recover; there would be no grounds to dispute it, for his mortgage is prior in date, and first on record. But the defendant alleges that the plaintiff has waived or forfeited his right to the money now claimed, so far as regards the defendant’s claim ; or, in other words, that by the acts of William J. Miller he has postponed his right to the money, so as to let in the right under Clark’s mortgage before him. • The controversy consists partly of law and partly of facts ; we must settle the law. and you the facts, and from the two combined you must make up your verdict. As to the facts, it is contended that when Stocker took the mortgage under which the plaintiff claims, he took also a judgment bond ; the mortgage was entered in Perry county the 22d of July 1828, and judgment was entered upon his bond in Philadelphia on the 16th of August 1830. It is said these securities were for the same debt. The mortgaged property was bound here by the mortgage, and the estate of S. Duncan in Philadelphia was bound by the judgment. It is contended that in this way the plaintiff claiming under Stocker had a twofold security; the one here, under his mortgage, the other in Philadelphia, under his judgment. Richard T. Jacobs, assignee of Clark, had resort only to the single fund here, covered by Stocker’s mortgage. It is said, in this state of things all parties were perfectly safe: that the bonds in Philadelphia were amply sufficient to pay the judgment of Stocker, as well as any liens prior to it; and in that way the land here would be left to pay Clark’s mortgage, and that it was sufficient for this purpose after the payment of any antecedent lien. This the defendants say is equity, and that the court and jury are bound to administer the law so ,as to effect this object, if it can be conveniently done. To effect this object,, the defendant, Mr Harris, as administrator of Jacobs, on the 28th of December 1832, gave notice to the (now) plaintiff, Mr Miller, that he must resort to the lands in Philadelphia for the payment of his claims upon his judgment, and not to the mortgage in Perry county. After the service of the notice upon the plaintiff, instead of resorting to the lands in Philadelphia for the payment of his claim, or waiting the ordinary result, he actually released all lien and claim upon a large portion of Stephen Duncan’s estate in Philadelphia, and did not proceed against others. Equity and equal justice are parts of the law of the land, and it is so that when one creditor holds two funds, and a subsequent creditor acquires a lien upon one of them, and not on the other, and there is enough to pay all, the proceeds of the funds must be so appropriated as to pay all: one creditor cannot discharge one fund and hold on to the other, and in this way defeat entirely the claim of the second creditor ; the first creditor holding the two funds must resort to the one not held by the other, if the fund is equally accessible and enough for his purpose : I mean that he must do so on notice from the second creditor of his claim, and the circumstances constituting his equity. * If the plaintiff in this case had a judgment in Philadelphia abundantly securing his whole claim by its lien upon sufficient estate, equally accessible to him as the lands in Perry county upon his mortgage, and, after receiving notice from the defendant, in its terms showing his claim and the equitable circumstances connected with it, if he did voluntarily release his lien in the city with design of throwing the whole burthen of his claim upon the lands in Perry, in such way as to defeat altogether the claim of the defendant, the loss would fall on the plaintiff, and not on the defendant. The law, tempered as it is with equity, in Pennsylvania, would not allow a creditor to wield his claim so as to throw the balance of the estate of the debtor into his own hands, under such circumstances, to the exclusion or injury of a subsequent lien creditor. This is the aspect in which the case maybe presented on the part of the defendant, so far as it regards the claim of William J. Miller.’ This view is controverted by the plaintiff. In point of fact, it is first alleged that the evidence does not show that Stocker released an accessible fund in Philadelphia competent to satisfy his claim. This must be decided by the jury. The private sales of S. Duncan’s interest in Philadelphia, which were bound by the lien of the plaintiff’s judgment, very far exceeded the amount of his claim, including any prior liens. The proceeds of such sales paid off liens against Duncan, and against Duncan & Mahon, to a sum exceeding 30,000 dollars, and still left upwards of 3000 dollars to be paid to Mr Duncan, the chief part of which liens were subsequent in date to the judgment of Stocker. There was in addition to this a tract of land held by Mr D. in his own right, valued at 15,000 dollars, incumbered to the amount of 12,000 dollars, and which has been since sold at private sale for 17,000 dollars. But the witnesses say the property at forced sales would have produced a much less sum. Mr Stiles says not half the amount — perhaps not exceeding 8000 or 10,000 dollars. Mr Mitchell says the property sold would not have brought more than 10,000 dollars. It is doubtful if he included in his estimate the property sold to Mr Stiles by Mr Duncan, at 4000 dollars, and the money paid to himself. These estimates are but matters of opinion, and not so satisfactory as positive facts, where they can be had. The value of the property at a forced sale is the criterion, not what may have been gotten by compromise and private arrangement ; though subsequent arrangement is evidence there was only a sum a little exceeding 7000 dollars a lien on Duncan’s estate, before the lien of Stocker’s judgment, and if he had proceeded upon the notice afterwards given, his claim would have taken grade as of the date of his judgment, and not of the date of the notice. There is a singular difference between the sum for which Duncan’s interest actually sold and the estimated value. But, it may be so — you must decide it. The whole testimony as to the value, its situation, rents, kind of property, location, and the duration of Duncan’s interest, taxes, repairs, amount of private sales, and Duncan’s age, &c., every thing should be considered in fixing the result. ‘ If the fund was ample and accessible, the plaintiff should have resorted to it.’ If it was not, if it was embarrassed, if it required expenditure of money, damage of lawsuits, protracted controversies, and expenditure of money in pursuing such fund, the plaintiff would not have been bound to pursue it; and if the amount did not offer a prospect of getting the whole, he was not bound to pursue it for a part: a plaintiff by a single suit, process, expense, labour, is entitled to his whole claim, and cannot be compelled to seek for it in parts, in different counties and different courts, by different proceedings. The defendant rests upon an equity. This may be repelled by any equity. If doubt, difficulty, contention and expense lay in the way, the defendant should have taken these hazards and expenses upon himself by advancing the money to the plaintiff, or offering to do so, and demanding his security: he could not demand the plaintiff to undertake them ; having two securities, one good and another doubtful and expensive, the law will not interpose. But the subsequent creditor may assume the hazard and take the expense upon himself by advancing the money to the prior creditor and demanding his securities. If such were the facts in this case the defendant would not have a right to interpose his claim. ‘We think further, if the plaintiff had an ample security unobstructed in the life estate, coupled with the separate estate of S. Duncan in the Frankford farm, that his release of the life estate would postpone his claim,- though he did not release the Frankford estate. The question is, had the plaintiff a clear indisputable fund in his reach, subject to his lien in Philadelphia, for the payment of his whole claim, and did he discharge that fund, or lessen ittby his release, so as to render it ineffectual.’ It is also contended by the defendant, that though the released fund might have been sufficient, yet the debt due plaintiff was from Duncan & Mahon, and that the estate in the city was the separate estate of Stephen Duncan, and that therefore it would have been inequitable for plaintiff to have proceeded against the separate estate of Duncan for the joint debt of Duncan and Mahon. ‘ Mahon it is said became insolvent about the year 1833; all the lands and estate of Duncan in Philadelphia were acquired by his wife, and have been sold, and the contest now about the distribution has shown the danger of loss to the parties, unless they succeed in this issue. If the controversy was in reference to Messrs Duncan & Mahon, or if they had estates exhibited here in testimony, and one or the other was likely to be prejudiced, this proposition might be of some weight. But partnership debts are essentially joint and several; and the private property of each partner is liable for the whole. Equity is but another name for justice: our law is made to yield to its dictates; it is moulded into shape and controlled by facts. Now if in fact this property was all required to pay the debts of the parties, and we know of no other in existence, the abstract nature of the debt being partnership, and the land held jointly, can have no avail. For Clark’s mortgage was for a joint debt as well as that of Stocker, and whether one or other of the two be paid out of this fund, it would be in accordance with the original design.’ But it is said the original design of the parties was, when Stocker’s mortgage and bond were given, that the Perry county land was to be the primary fund. We do not think a private understanding of this kind, between the parties, would have any effect upon third persons. The liens of judgments, mortgages, &c. are legal incidents, and their effects and operations are regulated by law. Third persons have a right to look to the liens and the law, and to deal accordingly.”</p> <p>“ It is not so that Calhoun, or any subsequent lien creditor in Philadelphia, could have claimed any right to substitution in prejudice of Mr Clark’s mortgage, which was prior in date. Nor do we consider Stephen Duncan as standing in the light of a security. Nor do I think the equity of defendant is repelled by any thing in S. Duncan’s being the purchaser of the Frankford farm: a recorded lien is notice to purchasers, and he always buys subject to its legal effect.” As to Henry’s case, we think there is but little difficulty in it. The principles above stated, so far as applicable, must be applied to this case. Henry had no judgment or lien in Philadelphia at the time of the notice served. Duncan’s property in Philadelphia was greatly incumbered beyond what it was when Stocker entered his. Upon the service of the notice, he offered to receive the money from the defendant, and to give over to him his securities, and all the defendant could claim was to be put in his place. The plaintiff, Henry, was not obliged to enter up a new judgment; to employ new counsel, to expend his money in procuring an additional lien, when he had one in Perry with which he was satisfied. If these facts are so, he is in no default, and is entitled to the money secured upon his mortgage.</p> <p>“Exceptions were taken by the plaintiffs and by the defendants in the respective cases.”</p> <p>Error assigned.</p> <p>The charge of the court to the jury is erroneous: the exceptionable parts are designated by inverted commas.</p>

<p>Respecting judicial sales of real estate, the rule is caveat emptor. A defect of title cannot be setup as a defence in an action upon a bond given to an administrator for the purchase money of a tract of land sold by an order of the orphan’s court.</p>

Gibson, Esq. and Mary Ege, executors of Michael Ege, Jun., who was one of the administrators of Michael Ege, Sen. In obedience to a citation issued at the instance of the heirs, appellees, Mary Ege and John B. Gibson, Esq., executors of Michael Ege, Jun., filed an account of his administration of the estate of Michael Ege, Sen. deceased, to which exceptions were filed: the account was referred to an auditor, who reported the facts; and on his report, the decree of the…