Volume 3 — Watts & Sergeant's Pennsylvania Reports

• This was an action of replevin by Charles Smith and Seneca Beans against Thomas Sands. The defendant, as constable, on the 17th of August 1837, distrained a field of corn and oats 'on the premises of the plaintiffs in Solebury township, Bucks county, on behalf of the Library Company of Philadelphia, in trust for the Loganian Library, for $177.77 arrears of rent-charge due them on the 1st of March 1837.

THIS was a writ of error to the District Court of the city and county of Philadelphia; in which this action of replevin was brought by Andrew C. Craig, the defendant in error and plaintiff below, against the plaintiff in error and defendant below, Samuel Smyth, for 350 hogsheads of molasses and 25 hogsheads of. rum, of the value of $9000.

THIS was a writ of error to the District Court of the city and county of Philadelphia; in which a verdict and judgment were rendered for the plaintiff below.

It was a scire facias brought by Levi Custer, executor of Eve Custer, to the use of Mathias Brumback, against Abraham Detterer and Christian Detterer, administrators of Christian Detterer deceased, with notice to Abraham Krupp, Jacob Harley, Jacob Hallman, Christian Detterer, Jun., Abraham Detterer, Jun., and the trustees of the Presbyterian congregation of Norriton and Lower Providence, terre-tenants.

THIS was an action brought by Edward Coleman and Louis Hurford, executors of William Coleman deceased, to the use of Harriet Coleman, guardian of the minor children of James Coleman deceased, against Rebecca W. Lukens.

THIS was a writ of error to the Common Pleas of Northampton county. It was an action of trespass quare clausum fregit brought by Joseph Unangst and Christian Brown, against Abraham Shortz and others, in which a verdict and judgment were rendered in favour of the plaintiffs below. It was the same case which was brought up and reversed on a former writ of error, and is reported in 5 Whart. 506.

THIS was an appeal from the decree of the Common Pleas of Bucks county, distributing the fund in the sheriff’s hands arising from the sale of the defendant’s real estate under a writ of venditioni exponas, at the suit of John B. Pugh.

This was an action brought by Mariano de Aycinena, executor of Juan Fermin de Aycinena, against Adolphus Peries, administrator with the will annexed of James Yard. The declaration contained seven counts, of which five were for money paid and services rendered, by Don Juan Fermin de Aycinena, and the two others for money paid and services rendered, by his executor, Mariano de Aycinena.

The plaintiff below and plaintiff in error, David Barnet, brought this action of account render against Samuel Yohe, to recover a balance alleged to be due to him as partner of the late firm of Yohe, Barnet & Co. There had been a previous partnership between the plaintiff and defendant, under the firm of Yohe and Barnet.

WRIT OF ERROR to the District Court for the city and county of Philadelphia, in which George Moyer and Joseph Robinson brought this action on the case against the Philadelphia, Germantown & Norristown Railroad Company.

THIS was an action brought by the Contributors to the Pennsylvania Hospital against Thomas Stewardson, surviving executor of Henry' Drinker, deceased, in which the following case-was stated for the opinion of the court. Henry Drinker, the elder, formerly of the city of Philadelphia, died in June 1809, having first made his last will and testament, bearing date the 28th of the 3d month 1808, which was after-wards duly proved, and letters testamentary granted to the executors.

This was an action of assumpsit, brought by Hopkins & Brother against John White & Co., in which the plaintiffs filed the following bill of exchange: Philadelphia, March 23, 1839. $853.20. Six months after date, pay to the order of Hopkins & Brother, eight hundred fifty-three dollars and twenty cents, for value received; and charge my account. Yours, &c. (Signed,) J. E. Foster. (Endorsed on face,) “ Accepted,” .

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which John Fox brought an action of trover-against the Commissioners and Inhabitants of the Kensington district, of the Northern Liberties, for the wrongful taking and conversion of a horse. The defendant pleaded as follows: And the said, the Commissioners, áte., by their attorney, come, áte., and say, áte.

THIS case is reported in 2 Watts ép Serg. 327, and came again before the court, in consequence of a difference of opinion between the parties, as to two items in the accounts, not disposed of at the former hearing. The defendant hád, since that time, paid over to the plaintiffs the sum of $27,911.45, without prejudice to the plaintiff’s claim to a further amount. This claim consisted of two items.

THIS was a writ of error to the Common Pleas of Montgomery county, to remove the judgment and proceedings, but not the executions. A summons in debt was issued in that court to May term 1838, by Jesse Tomlinson, assignee of Thomas Tyson, against Levi Jarrett, which was returned served, and the plaintiff obtained a judgment by default for want of appearance on the 3d of July 1838; debt and damages, $2288.98.

<p>THIS was an action of assumpsit, brought by Judah Dobson, ' in the Common Pleas of Bucks county, to December term 1838, against Reynell Coates, Thomas Wood, G. W. Ridgely, M. O. Callaghan, Charles Roberts, J. M. Hibbs, James R. Scott, Rowland Stephenson, John Maulson, Robert Pitman, Alve E. Loring, Joseph F. Warner, C. H. Bessonett and Wilmot Martin, who survived Thomas G. Kennedy, formerly associated under the name of Bristol Lyceum, to recover the price of certain books alleged to have been sold and delivered to the Bristol Lyceum. The sheriff made return to the writ, that he had “ summoned G. W. Ridgely, James R. Scott, Joseph F. Warner and Thomas Wood, and nihil as to the rest of the defendants.” The plaintiff filed ,a declaration against the defendants, who were summoned, and on the 24th day of June 4889, entered judgment against Scott, Warner and Wood, for default of appearance. G. W. Ridgely having appeared to the writ, pleaded non assumpsit, and payment w'ith leave, &c., to which plea the plaintiff replied non solvit and issue, and on trial a verdict and judgment were rendered for the plaintiff. The facts of the case, and the points involved in it, are stated in the opinion of the court.</p>

THIS action was instituted by William Wharton, executor of Sarah L. Shaw, deceased, against Joseph S. Shaw, administrator de bonis non, with the will annexed, of Mary Shaw, deceased, to recover a legacy which the plaintiff alleges his testatrix became entitled to receive in her lifetime, under the will of Samuel Shaw, of which Mary Shaw the testatrix of the defendant was executrix, in conjunction with Thomas Shaw executor of the same, and became a trustee of the money or…

<p>THIS was a writ of error to the Common Pleas of Monroe county. It was an ejectment brought by James Postens against William Postens, to recover a tract of 106 acres of land, in which a verdict and judgment were rendered in favour of the plaintiff below, James Postens. It was the same land which was the subject of a former ejectment by William Postens against James Postens, in which William Postens succeeded, and which is reported in 4 Whart. 27.</p> <p>Both parties were sons of Jacob Postens, deceased, and derived title under him; the plaintiff claiming as purchaser at sheriff’s sale under a judgment and execution against the administrator of Jacob Postens, and the defendant under a deed to him from Jacob Postens in his lifetime.</p> <p>The plaintiff gave in evidence a judgment on the 25th March 1832, in a suit by Jacob Stroud’s executors against James Postens, administrator of Jacob Postens, deceased, for $474.57, and sale thereon by the sheriff on an alias venditioni exponas, and a sheriff’s deed, dated 29th November 1833, to James Postens, the plaintiff.</p> <p>The defendant then produced a deed dated the 18th December 1828, from Jacob Postens to himself, recorded the 20th December 1828, and showed that notice of it was given at the sheriff’s sale above mentioned. This deed, in consideration of $2000, conveyed “ a piece of land containing, by estimation, 106 acres, more or less, being the full half of the farm whereon Jacob Postens now lives, and known and distinguished by the back end of said farm, and embracing the land whereon the new barn was built for the said William Postens, as it has been said,” &c.</p> <p>The plaintiff, in order to prove that Jacob Postens, the grantor, was indebted at the time of this conveyance, which was alleged to be a voluntary one, gave in evidence the cause of action in the above-mentioned judgment, viz: first, a bond dated November 25th 1795, Jacob Postens to John Lee, in the penalty of £66 10s 8d, conditioned for the payment of £33 5s 4d, on the 16th of April 1796, with an endorsement signed by Jacob Postens, without date, promising to pay the amount to the executors of Jacob Stroud, on the 1st June 1830, witnessed by James Postens, and a receipt 29th June 1830, of $50 from James Postens on the same: second, a bond of the same date, between the same parties, and with like penalty, condition and endorsement, with a receipt of $35.31, from James Postens on account.</p> <p>The plaintiff, also, gave in evidence two other judgments against Jacob Postens, at the suit of himself, one entered January 31st 1829, for $527.37, on bill obligatory of the 2d August 1810, for $250, with interest; the other entered 31st June 1829, on bond and warrant of attorney dated 27th January 1829, for $3311.62.</p> <p>The plaintiff then produced and proved by William V. Buskirk, a settlement in writing between Jacob Postens and his son James Postens, which was the consideration of the bond for $3311.62. It was a statement of James’s claim for wages, with interest from year to year, beginning August 2d 1811, and ending April 27th 1829, cast up in the sum total, amounting (after several deductions for clothing, medicine, &c.,) to the sum of $3311.62, signed by Jacob Postens and James Postens, and countersigned by Jacob Brown, William V. Buskirk, and Simon S. Wetherill, as done in their presence, January 27th 1829.</p> <p>The defendant cross-examined this witness as to Jacob’s being aged, and with poor hearing, and having had a stroke of the palsy, and getting asleep occasionally, and as to the circumstances attending the transaction, and the manner in which the three persons, together with Daniel Stroud, who was called on to act as their clerk, conducted themselves in their inquiries and examinations, during the settlement of the accounts between the father and son, and the footing they were on with them. The plaintiff then offered to ask the witness the following question: What was the character and standing of S. Wetherill, Jacob Brown, and Daniel Stroud? To which the defendant objected, and the court overruled the objection and sealed a bill of exceptions.</p> <p>The witness then stated, that they stood very fair, as far as he knew, and proceeded to state other matters; one of which was, that they were not arbitrators—they were there to help them settle.</p> <p>The plaintiff afterwards called Jacob Brown, to show the settlement to have been deliberate and fair. Both these witnesses stated that James Postens came for them, to come and help at the settlement.</p> <p>The defendant then went into evidence respecting the deed to him. That it was made to the defendant at the time of his marriage with a daughter of Capt. Hornbeck, it being understood or expected by Jacob and William, that Capt. Hornbeck would give his daughter an equivalent. Hornbeck subsequently conveyed to William land in New Jersey, said to be of equal value. No money was paid by William to his father. Some witnesses said, the arrangement was, that Hornbeck was to convey to William a certain mill property in Jersey, different from that which he did convey; and that Jacob and William afterwards complained that he had not. William did not go to live on the tract in dispute, but resided in Jersey. The defendant also gave a great deal of evidence to show that James rented the place of his father, and never worked for him for wages; and on this point the evidence was contradictory. He also gave evidence to prove that Jacob, at the time of the settlement, was 75 years old, infirm, and not capable of transacting business.</p> <p>Rebutting evidence was given by the plaintiff on these and various other matters. Among others was the deposition of Jacob Sheimer, of which the following portion was objected to by the defendant, but admitted by the court, and exception taken.</p> <p>“ In the latter part of the winter following the fall when the deed was executed, I was at the old man’s house, who complained that Capt. Hornbeck was to do certain things which he had not done; that he was to have given to William a deed for the place on which William then lived, called the mill property, but had not done it; at the same time saying, that he had always intended that William should have the property that he had given him a deed for, and wished him to come and live on it; that it would be a home for them; and that Capt. Hornbeck was to have given William a deed for the mill property, if he gave William a deed for the premises in question; and complained that Hornbeck had not done as he had promised.”</p> <p>The plaintiff further gave in evidence the declarations of the defendant, that Hornbeck was to convey to him the mill property.</p> <p>The plaintiff offered to prove the value in 1830, and 1831, of a tract of land in Chesnut Hill township, which belonged to Jacob Postens. To this the defendant objected, but the court admitted the evidence and sealed a bill of exceptions.</p> <p>The plaintiff also offered to prove Jacob Postens’ declarations as to James Postens’ management of the farm; which was objected to, and admitted, and exception taken by the defendant.</p> <p>The plaintiff offered to prove Jacob Postens’ declarations, that he had hired James; which the defendant also objected to, but the court admitted, and sealed a bill of exceptions.</p> <p>The plaintiff offered to prove by Stogdell Stokes, a sale to the witness by William Postens, in 1819, or 1820, of a house and lot in Stroudsbui’g, for $1100, of which he paid in goods, &c., $832, and gave Jacob Posten’s credit for the rest; William saying at the time, he was about moving to Jersey, and his father could make the witness a title. To this the defendant objected, but the court admitted it, and exception was taken by the defendant.</p> <p>Daniel Stroud, Esq., was called as a witness by the plaintiff, and on his cross-examination by the defendant, said, that James Postens called on him to attend the settlement. The plaintiff then offered to prove what James Postens said to the witness at the time he called on him to attend the settlement as stated above, in relation to his attending the settlement. To this the defendant objected, but the court admitted it, and the defendant excepted. The witness stated that James professed to deliver a message from his father.</p> <p>The plaintiff proposed to the court the following points:</p> <p>1. That the acknowledgment of Jacob Postens on the bond held by the executors of Jacob Stroud, deceased, did not create a new debt from that time, but by repelling the presumption of payment left the original debt in full force.</p> <p>2. That the judgment of James Postens on the single bill of 1810, was in point of law, for a debt precedent to the conveyance to William, and that if the judgment, No. 72, of January term 1819, was also for indebtedness incurred previously to December 1828, it is also a debt precedent to such conveyance, and if the conveyance tended to delay, hinder, or defeat its collection, it is void.</p> <p>3. That if at the time of the conveyance of the 18th of December 1828, Jacob Postens had not other property sufficient beyond doubt to pay his debts, such indebtedness avoids the conveyance.—Admitted.</p> <p>4. That the circumstance of William Postens never having taken or attempted to take possession of the property during his father’s lifetime, is a strong circumstance to show the voluntary character of the conveyance.—Admitted.</p> <p>5. That even if it were agreed on the 18th December 1828, between Jacob Postens and Benjamin Hornbeck, that each would settle $2000 worth of property on their child, that would not be good against creditors at the time, more" especially if Hornbeck did not carry his agreement into effect, until nearly 18 months after, or if he could not have been legally compelled to do so.</p> <p>6. That if Jacob Postens was induced to execute the deed of 18th December 1828, to William Postens, by a promise of Jacob Hornbeck, that he would convey the mill property spoken of by the witnesses to his daughter, the wife of William Postens, which he did not then mean to perform, and has not yet performed, it was a fraud upon Jacob Postens, and no title would vest in William under that deed.</p> <p>7. That the judgments of Stroud’s executors, and of James Postens, against Jacob Postens, are evidence of indebtedness to the amount, and unless they are proved to be fraudulent or collusive, they ought to be considered by the jury as evidence of the debt to that amount.</p> <p>The court charged the jury in substance as follows:</p> <p>The parties claim title to the land in dispute under their father, Jacob Postens. The plaintiff derives his title under a judgment entered in Northampton county on the 26th March 1832, upon a bond given "in the lifetime of Jacob Postens to Jacob Stroud. The deed of the sheriff under this judgment to the plaintiff, is dated 29th November 1833, and vests in him all the interest of Jacob Postens at the time of his death to the lands in controversy. The defendant claims the land by virtue of a deed from Jacob Postens dated the 18th of December 1828, recorded on the 20th of the same month. This deed being older than the judgment under which the plaintiff claims, and having been duly recorded, conveys the better title, unless from the evidence it should appear to the jury that it had been obtained by fraud, or being a voluntary deed, is defeated by a prior indebtedness of Jacob Postens. The voluminous evidence in this case has been introduced for the purpose of affirming these two positions, and on the part of the defendant of repelling them. The first inquiry then is, as to the actual fraud in obtaining the deed from old Jacob Postens. If that deed of Jacob to William, was obtained by fraud, misrepresentation, and deception, then the defendant cannot avail himself of it, and the plaintiff is entitled to recover. The facts upon which this point is raised are to be found mainly in the evidence given by the depositions of Sheimer, Van Auken and Westbrook, and in the evidence here given by Van Oys. On the part of the defendant is the evidence of Judge Stoll, and of Benjamin Horn-beck and Jacob Hornbeck. It is then for the jury, from all the evidence, to determine whether this deed was procured by improper contrivance, false statements, and fraud, on the part of William Postens. That no money was paid, nor any other valuable consideration passed from him to his father, is clear, from all the testimony. Natural love and affection, and a desire on the part of the old gentlemen to advance to the greatest possible extent the interests of his son, were in his mind the moving causes to the execution of the deed. Should the jury be of the opinion that this deed was not improperly obtained, they will be led to the next inquiry.</p> <p>2. Was this a voluntary deed, so as to be void as against prior creditors ? The defendants contend, “ that if this deed were made in consideration of a conveyance, or gift of other property or money by Jacob Hornbeck to his daughter, then it is upon valuable consideration,, and not a voluntary deed, even if no other than natural love were the moving cause in the mind of Jacob Postens.”</p> <p>To this the court reply, that a settlement by a father upon his son after marriage, as against creditors, if voluntary on his part, does not acquire validity from the fact that the father of his son’s wife, in consideration of such settlement, gave a similar amount to his daughter. So far as Jacob Postens and his creditors are concerned, this deed is not the less to be considered as a voluntary deed in consequence of the agreement of Jacob Hornbeck to give the like amount to William Posten’s wife.</p> <p>This deed, then, is to be taken as a voluntary deed from the father to his son: and, if it tended to hinder, delay, or defeat prior creditors, is void. Here, then, are raised for the consideration of the jury, what have been treated and discussed as the main and material questions in the case; and they are these:</p> <p>1. What was the amount of debts due by Jacob Postens on the 18th December 1828?</p> <p>2. What was the amount of his property at that time?</p> <p>3. Was his property, exclusive of that conveyed to William, sufficient beyond all doubt for the payment of his debts ?</p> <p>The debts due, as claimed by plaintiff, are:</p> <p>1. The judgment under which the property was sold to plaintiff, 1474.57.</p> <p>2. A judgment in favour of plaintiff, entered on the 31st January 1829, upon a note dated 2d August 1810, $527.37.</p> <p>3. A judgment in favour of plaintiff, entered same day, upon a bond dated 27th January 1829, $3311.62.</p> <p>The validity of the two first judgments appear to be clearly established, and the contest relates mainly to the third. This judgment was confessed to James by his father, upon á settlement of an alleged hiring of James by his father, extending from 1810 to the time of settlement (27th January 1829). A great variety of testimony has been introduced for the purpose of showing that there was no hiring, and that the contract between James and his father was a renting of the property on shares. If this were so, then this judgment could not affect William, for it is only upon the ground that there was a subsisting contract of hiring that there could have been any indebtedness to James prior to 1828. If it had been originally a renting, the parties could not after-wards, by any agreement between themselves, have converted it into a hiring, so as thereby to affect the vested interest of William under his deed.</p> <p>This part of the case, then, is to depend upon whether, under the evidence, the jury believe the agreement between James and his father were a hiring or renting. If-it were a renting, then in 1828 the father could not have had any contract with James, upon settlement of which James could found his judgment; and in that case that judgment could not be taken into account in ascertaining the amount the father owed in 1828. And then, too, there seems little question that he was beyond all doubt able to pay his debts, without any recourse to the property conveyed to William.</p> <p>If the jury, under the evidence, believe the contract to have been a hiring of James, then they will inquire whether, including this judgment, or rather the amount of wages then due James, the property of the father was beyond all doubt sufficient, without including this land, to pay all his debts. The jury should investigate this part of the case with great care and deliberation, as upon the view they take of it the cause will probably be decided.</p> <p>When this cause was before tried, nearly all the legal questions involved in it were settled. A few points have been submitted for the charge of the court, by the plaintiff, which have been substantially answered in the foregoing part of the charge. So far as it is necessary to reply to them further, the court do so by affirming the positions taken in the points, except the sixth; and that is correct, with this qualification—that if William were a party to the fraud, and the promise of Jacob Hornbeck were the only consideration. But, if Jacob Postens, intending to benefit his son by the conveyance of the land, was induced to seek the arrangement with Hornbeck by his desire to advance his son’s interest, the failure of Hornbeck to comply with his part of the contract, whatever may have been the motives which induced such failure, would not avoid the contract.</p> <p>To this charge both parties excepted.</p> <p>Errors assigned:</p> <p>1. The court erred in admitting the evidence mentioned in the 1st, 2d, 3d, 4th, 5.th, 6th and 7th bills of exceptions.</p> <p>2. In their answer to the first point proposed by the plaintiff’s counsel.</p> <p>3. In charging the jury that the judgment of James Postens for $3311.62 was evidence of indebtedness to the amount, unless shown to be fraudulent or collusive.</p> <p>4. In withdrawing from the jury the fact of the validity of the judgment in favour of Stroud’s executors, and in charging the jury that the same was clearly established.</p>

THIS was an action of covenant, brought by Jacob Sterner and Michael Altemus, administrators of Michael Sterner deceased, against John… Held: used, occupied and enjoyed the same. Yet protesting that the said John Gower hath not performed, done or kept anything in the said articles of agreement contained, and the said omission therefrom on his behalf to be performed, fulfilled and kept according to the tenor and effect, true intent and meaning thereof, the said plaintiffs…

<p>In order that a protest may be evidence for the insured, it must be made within twenty-four hours after the vessel is moored on her arrival at her port of destination, or certainly before the goods have been landed, or the condition of the cargo ascertained.</p> <p>If the extension of the protest be delayed till afterwards, the mere noting the protest within the twenty-four hours would not make it evidence.</p> <p>The naked fact shown by the insured that the goods after arrival were found damaged by sea-water, is not evidence of a loss from a peril of the sea.</p>

THIS was an appeal from the Orphans’ Court of Northampton county. Letters of administration were taken out to the insolvent estate of Isaac Salkeld, and auditors were appointed to examine the account of the surviving administrator, and to make a pro rata distribution among the creditors.

<p>Where an ejectment is served on a tenant who does not notify his landlord to appear, the court will open a judgment obtained by default and permit the landlord to be made defendant and contest the title.</p> <p>But this will not be permitted on the application of one who is in possession, and states himself to be the agent of other persons, who have long since sold, and admits he has never paid rent; though he says he has made repairs.</p>

EJECTMENT for a lot on the west side of Front street, in the district of Southwark, in which the following case was stated for the opinion of the court: John Tittermary, being seised of an estate of fee simple in the premises, executed a conveyance to his daughter, Eleanor Mercer, bearing date April 11th 1806. John Tittermary died, and Eleanor Mercer continued in possession of the premises to the time of her death.

AN amicable action was entered in the Common Pleas of Northampton county, in the name of George Kocher and Edward Kocher, against Jacob Saylor, trustee of Catharine Kocher, a lunatic, Jacob Saylor, guardian of Juliana Kocher, and Philip Roth, guardian of Sarah Ann Roth; and a case was stated for the opinion of the court, to be considered in the nature of a special verdict, with liberty to either party to have a writ of error.

Thomas Lyle, the plaintiff below, brought this action of trespass vi et armis against William R. Thompson, Swain, Demarest, and others, for seizing his brig Franklin, and detaining her three days, when about to proceed on her voyage from the port of Philadelphia to New Orleans.

This was an action on the case brought by John Ottenkirk against Mishael Pugh, administrator of Catharine Irick, deceased, in which the declaration was as follows: Mishael Pugh, administrator of Catharine Irick deceased, was summoned to answer John Ottenkirk of a plea of trespass on the case, &c. And whereupon the said plaintiff by John Freedley, his attorney, complains, that whereas- one Christopher Irick (which said Christopher is the only son and heir of Catharine Irick…

A CASE was stated for the opinion of the court, in order to determine whether in the election of assignees of the Bank of Pennsylvania, under a recent Act of Assembly, the state treasurer had the right to vote for each share of the capital stock of that • bank held by the commonwealth. If he had, then the election which had taken place, to be adjudged illegal and void.

This was an action of debt brought by Philip Brotzman against Jacob Bonnel and Solomon Westbrook, (the former of whom only was served with the process,) to recover the penalty given by the Act of 29th September 1770, for harbouring, concealing and entertaining one John Houser, the apprentice of Brotzman, the plaintiff. A verdict for the plaintiff was rendered in the court below, for the sum of $387.67, and Bonnel sued out this writ of error. The plea below was nil debet.

THIS was an action of trespass, brought in the Common Pleas of Monroe county by the defendant in error, William Postens, against the plaintiff in error, James Postens, for the recovery of mesne profits of land, for which he had brought an action of ejectment against James Postens, and obtained a verdict and judgment. The suit was brought on the 8th of July 1839, of September term 1839, No. 12.

ON the 31st January 1842, the attorney-general, on behalf of the commonwealth, filed a bill against the defendants, setting forth that “ The President, Directors and Company of the Bank of Pennsylvania,” being a banking corporation, the chief place of business of which is situate in the city of Philadelphia, established under and by authority of the laws of the said commonwealth, is made and constituted by'said laws, the depository of the public moneys of the said…

<p>Bequest to executors, and the survivor of them, in trust for R. C. H. the sum of $30,000, to be by them invested for his use, and that of his legal representatives, either in real or personal estate, according to their best discretion—the legacy to be paid at the end of three years after decease of testator, unless in the judgment of the executors, or survivor, it may sooner he paid without injury to his estate generally, and to the interests of those to whom the residue was given. Held, that after the three years, action lay by the legatee to recover it.</p>

<p>A member of the “ Franldin Beneficial Association of Lancaster” is entitled to relief, in case of disability or sickness, only from the date of his application for such relief, and not from the time such sickness or disability accrued.</p>

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>Robert R. Church against The Trustees of Dickinson College, owners, and Henry Myers, contractor. This was a scire facias upon a mechanic’s claim, filed as a lien against the Grammar School building belonging to Dickinson College.</p> <p>The sureties were making the defence, and they produced in evidence a resolution of the board of trustees, authorizing Wm. B. Biddle, Charles M’Clure and Frederick Watts, Esqs., as a committee to release Henry Myers, the contractor, from all liability whatever on account of his contract; “ Provided that Christian Humerich and Jacob Senejr, the sureties, consent thereto and agree that the same shall in nowise interfere with their liability to the college for the said Myers.” Attached to this resolution was the written assent of Humerich and Sener, in pursuance of the provision; and then followed the release by the committee of the board of trustees.</p> <p>The defendants then offered Henry Myers as a witness. The plaintiff objected to his competency, on the ground that he still remained liable to his sureties, in the event of a recovery by the college against them. The court overruled the objection, and sealed a bill of exception.</p>

Sarah Hannah against William Swarner. Ejectment. On the 6th of April 1815, Joseph Smith died, having first, on the 6th of March 1815, made his last will and testament, by which he directed his executor to sell all his estate, real and personal, and out of the purchase money to pay certain legacies to his five children, and one grand-child.

Samuel Patterson and William Patterson, administrators of Arthur Patterson, deceased, against H. K. Bear. This was a feigned issue, directed by the court to try the right to the money arising from the sale of the real estate of John Gamber. The only question in the cause was, whether the plaintiffs were entitled to the money, and if so, how much ?

John Harper against John M’Keehan. This was an ejectment for 380 acres in Carroll township, first brought in the name of John M. Woodburn, in whose place John Harper was afterwards substituted.

The Carlisle Bank against George Barnett. Scire facias to revive a judgment. The parties agreed to the following facts, to be considered in the nature of a special verdict, and which were submitted to the court upon written arguments: John D. Creigh gave a note to the Carlisle Bank, dated 27th December 1837, for $2500, payable 60 days after date, with George Barnett, James Marshall, James M’Kee, and John Junkin, sureties— all jointly and severally bound.

<p>An administrator has no power to deliver a deed executed by his intestate in his lifetime, in pursuance of a contract for the sale of land; he must first apply to the Orphans’ Court for leave to prove the contract and execute and deliver a deed.</p>

John Endress, assignee of Michael Spang, against the administrators of Samuel Sherk, deceased.. This was an action of debt upon a bond conditioned for the payment of $1900, and a sealed note for the payment of $1000. The defendants pleaded specially, that before the date of the-assignment of the bond and note by Spang to Endress, Spang was indebted to Sherk, by judgment, for $6000; by bond for $1000; and by a sealed note for $400.

Jacob Zeigler against Thomas J. Rehrer, owner, and John Brenizer, contractor. Scire facias on a mechanic’s lien. The claim filed in this case was for lumber furnished for a house, the items of which were all set out, with the month and day of the month when each was delivered, but not the year.

Daniel Umbehauer and Henry Umbehauer against Andrew Aulenbaugh. Ejectment. For the former report of this case see 8 Watts 48. The facts upon this trial were precisely the same; and it was brought up for the purpose of getting this court to review their former decision, and was again argued by

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>William S. Bishop against William Reed, Rody M’Gee, Calvin Holmes, and Sarah M’Nutt. This was an action of ejectment fora lot and two houses in the town of Millersburg, which the plaintiff claimed by virtue of a deed from Reed and M’Gee, (the other defendants were tenants), dated the 9th of July 1840 — consideration f850. It was acknowledged on the day it bore date by both Reed and M’Gee, and left with the scrivener, who was also a° justice of the peace, to be taken by him to obtain the signatures and acknowledgment of the wives of the grantors; who executed and delivered the deed, but at what date was not certain. Reed set out for Erie about the 20th of July, and the acknowledgments were taken after that and before his return, which was on the 3d of August. The deed was never recorded. The defendants offered and proved that Bishop and A. C. Ramsey had taken a contract to construct two locks, Nos. 70 and 71, being the. outlet locks from the Erie canal into Lake Erie. Their contract was dated the 20th of April 1840; but at the foot, above the signatures, was written—“ This contract not to be binding on the commonwealth until approved by the board of canal commissioners.” It was approved about the 13th of June. It contained the following clauses: “ The contractors do further agree, that they will not re-let or transfer said contract or any part thereof, to any other person or persons whatever; and that they will personally superintend the work during its progress.” “ It is further agreed between the said parties, that in case the work upon this section shall not be commenced within 40 days from this date, or if at any subsequent period the said contractors should in the opinion of the superintendent or engineer refuse or neglect to prosecute the contract, &c. &c., or shall sub-contract or re-let said lock or lock section or any part thereof, or shall not give personal superintendence to the work, the said engineer shall have power, with the consent of one of the canal commissioners, to determine that this contract has been abandoned, and such determination shall put an end to his contract, &c. And the superintendent may immediately proceed to dispose thereof in the same manner as if it had never existed.”</p> <p>A. C. Ramsey, the partner of Bishop, had been written to by the superintendent, urging him to come on and make some satisfactory arrangement, but telling him he had taken the contract too low—instead of which he sold his share in the contract to a man called Martin. The engineer had also written to Bishop. Bishop knew that Ramsey had sold to Martin. On the 8th of July he was told that it was said at Erie his contract would be at an end unless he came soon. On the 9th he closed his bargain with Reed and M’Gee, assigned his contract, and got their deed for the two lots and their note for $150, making together $1000, the price they were to pay for the contract. The scrivener says: “ It was stated they were to get the work on the contracts; the matter was arranged before they came to my office. I understood the contract was going on.” Another witness, one of those chosen to fix a price on the house, says: “ Bishop said he would insure them to get the locks.” An engineer in another part of the state mentioned to the parties the clause against selling or assigning contracts. Bishop said, “ it had been customary, there would be not much doubt about their getting it.” This was about the time the assignment was made. This witness also proved, that “ about ten days after this, M’Gee started to Erie, in as short a time as a man could prepare for such a job.’ When M’Gee got to Erie, he found the contract had been declared abandoned, and was advertised to be re-let on the 4th of August; and he sent a man with a letter for Bishop, who went to Erie, and again to see the canal commissioners at Lancaster, but could not get the contract back. It was also proved that after this Bishop said it was a hard case; he thought they Would have got the work, and he thought he would give back the property, and did give up the note for $150.</p> <p>All the evidence proving fully these facts, was objected to, but admitted, and was to be considered as if a bill of exceptions to each, except the scrivener, who in fact proved the substance 'of the whole case; but others the same facts more precisely and specifically.</p> <p>The court below (Parsons president) was of opinion that the plaintiff was not entitled to recover, and so instructed the jury.</p>

<p>In an action of debt upon a sealed note it is competent for the defendant to prove that it was given for the balance due upon another note, for which he received no consideration.</p> <p>Although an implement may have been long in use, yet an invention of a mode of making it in a different manner, which produces a new and useful result by a new combination of old materials, entitles the inventor to a patent for the new implement, and not alone for an improvement of an old one.</p> <p>In an action upon a note given for a patent right, the plaintiff cannot recover, if it appear upon the trial that the invention for which the patent was granted was not new or useful, although both parties acted in good faith in giving and receiving the note.</p>

. Isaac Koons & Co. against Adam Miller. This was an action founded upon a book account, and the only question was, whether the plaintiff was entitled to recover interest. The court below thus stated the case and charged the jury:— Banks, President. “ The plaintiffs were merchants doing business in Philadelphia, at the times the defendant contracted with them the debt now claimed. The only question now made is as to the interest on the account.

<p>If a judgment be opened upon an affidavit of defence, and the defendant let into a defence upon the merits, he will not, upon the trial, be permitted to take advantage of a technical exception to the form of action.</p>

■ ERROR to the Common Pleas of Lebanon county. Jacob Bitner against Christian Shuey. In this case the defendant appealed from a judgment against him before a justice of the peace, and at the same time appealed from two other judgments against him before the same justice at the suit of other plaintiffs. The three suits, in which there were three different plaintiffs, were marked for trial at the same term. The defendant subpoenaed the same witnesses in the three suits.

<p>A higher security for a debt given by different parties or for a different sum, will, in the absence of proof of the intention of the parties, be presumed to have been accepted only as a collateral security, and not in satisfaction of the debt.</p> <p>A merger takes place only where the debt is one, and the parties to the securities are identical, which works a dissolution, not of the debt, but of the original security. Extinguishment or satisfaction of the debt, depends upon the agreement and intention of the parties, which is rightly referred to the jury as a question of fact.</p>

Andrew Pierce for the use of A. D. M’Bride and John M’Clay, his assignees, against Robert M’Keehan. This was an action of debt on two bonds, for real debt, $891 each, of Robert M’Keehan to Andrew Pierce, dated 3d of April 1837, and falling due 1st of April 1840 and 1841, and given by M’Keehan to Pierce in payment for a tract of land, formerly the property of Joseph Pierce, which, by divers mesne conveyances, became vested in Andrew Pierce.

Benezer Hale, and other execution creditors of S. B. Hickcox & Co., against John A. Weir. This was a feigned issue directed by the court to try the right to money raised on the sale of the personal property of Samuel B. Hickcox & Co. The plaintiffs, Benezer Hale, Josiah Elder & Co., William Reed and Henry M. Bayard, were respectively creditors of Samuel B. Hickcox & Co., and had each issued writs of fieri facias against them, before the sheriff sold their personal property.

Hannah Parks against George Dunkle. This was a feigned issue directed by the Orphans’ Court of Berks county, to ascertain whether the plaintiff was entitled to an inquest on the real estate of her late husband, Jacob Rothermel, deceased.

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>This was an action of debt by J. J. Myers and Jacob Squier, endorsees of Thomas Underwood, against William Barr, James Hannan, William Woodburn, and Samuel Hinkley, in which the plaintiffs declared upon a negotiable note of the defendants to Thomas Underwood, for $250, endorsed to plaintiffs before its maturity, which was given in evidence.</p> <p>The defendants alleged that the consideration of the note was a sale of 2000 morus multicaulis trees by the plaintiffs to the defendants, and that Thomas Underwood was the mere agent of the plaintiffs in making the sale and taking the note, and its consideration failed by reason of the plaintiffs not having delivered the trees according to their contract, which was given in evidence, as follows:</p> <p>Carlisle, September 7, 1839.</p> <p>On or before the 21st of November 1839, we promise to deliver to William Barr & Co., 2000 morus multicaulis mulberry trees, in good order, and free from damage of any kind, except such as may happen from hail, frost, or bad weather. It is understood that the said trees are to be cultivated and taken care of in a proper manner until the time of delivery. The above trees are those now growing on a lot in the occupancy of J. J. Myers and J. Squier, west of Carlisle, and the said trees are growing on the west end of said lot.</p> <p>. John J. Myers & J. Squier.</p> <p>Per John J. Myers.</p> <p>JYewville, September 11, 1839.</p> <p>I certify that the within multicaulis trees were sold by me for J. J. Myers and J. Squier, to be delivered to Barr, Woodburn, Hinkley, and Hannan; and that I received their notes for value for the said trees, which I have given over to said Myers and Squier, except the last note, which I hold; and that I have satisfied J. J. Myers and J. Squier for said trees with said notes.</p> <p>Thomas Underwood.</p> <p>The defendants then called Thomas Underwood, who testified as follows:</p> <p>The original agreement was executed on the 7th of September 1839, the time it bears date. I presume this is one of the notes given in part payment of that contract. (The note of 1st of November 1839, in suit.)</p> <p>Cross-examined—1 think it was some time in September, I came here on my own business. In conversation with Dr Myers and others, who had mulberry trees to sell here, I was induced, with a view of making something, to embark in the business. I did agree with the doctor to furnish me with trees at 30 cents apiece; all that I could make over that should be my profits, without any further writings that I know of. I went on to Newville, there offered trees for sale, and Mr Barr, Woodburn, or some one or more of them, seemed inclined to purchase, and there were three or four of them agreed together that if they could bargain for the trees they would buy them. In consequence they appointed W. M. Woodburn to come and see the trees. Accordingly him and I came to Carlisle for that purpose, and we saw the trees, and others that were growing, owned by other persons. On returning to Newville he appeared more satisfied, enough to encourage the others to go into the purchase. Accordingly they appointed Mr Barr to go the next day, and we came down the second day, Barr and myself, and examined those trees with others growing east of town. When we returned, he encouraged them to agree. They did agree. Mr Barr then drew up those notes—those that were to pay for the trees. They were to pay me 40 cents a tree, for which, after they had given me their notes, I gave them something similar to that agreement of Squier and Myers, signed by myself I told them being as I was going away not to return, I could not deliver the trees myself, but would procure for them more responsible men than I was, and asked them if they would give up the paper I gave them, if I would procure one from Myers and Squier. They agreed they would. I then came to Carlisle with the notes I received, and gave them to Dr Myers, and asked him to give something of this kind for those men in Newville. Accordingly, after arranging the notes, he wrote this agreement (one of 7th of September 1839). When I returned to Newville with it to exchange for the one I had given them, Mr Hannan expressed some doubts as to whether they ought riot to have something to show that I had actually satisfied Mr Squier and Dr Myers for those trees, and I think Mr Hannan wrote this matter on the back of this agreement, and I signed it. That finished the transaction. When we came down to see the trees, we did not call on Dr Myers or Jacob Squier. I was to pay Dr Myers and Mr Squier. Nobody else was to be responsible to them. I think I sold them the trees on my own account. The reasons for my thinking so, are that neither those men in Newville nor Dr Myers knew what I was making on the trees. Never made any return of sale to Dr Myers. When I came to see the doctor, after the sale, I paid him with those notes. I paid the doctor the first thing I done before I received anything from him. I gave him the notes the same day, and at the interview. I came to Dr Myers and paid him with the notes the first thing I did when I came to town from Newville. Then I asked him to give me this article for those men. This was after I settled with him for the trees. I stated to him the same I did to those in Newville—that I would be away and could not attend to the delivery of the trees.</p> <p>I don’t know that any place was designated. Before I engaged the trees, the Dr and I went over the ground. Those I agreed to purchase were on the west end of the lot—those on the east side were the least trees. I lived in Dillstown at the time of the purchase.</p> <p>Certainly, I stated those trees were growing in Dr Myers’s lot. I took them there and showed them to them.</p> <p>I of course told Dr Myers I had sold the trees when I gave him the notes. More than likely I told Dr Myers what I got for the trees; but I can’t remember. I was not bound to take any trees from Dr Myers, unless I made sale of them. I retained my profits out of the notes, amounting to $200.</p> <p>There was money paid on the contract—$50 was paid—it was paid to me by those men who purchased the trees. When I came to Carlisle to pay the Doctor for the trees, to make up his amount of $600, 1 gave him my own note for the $50. It has not since been paid.</p> <p>The plaintiffs then called several witnesses, who testified that the trees were carefully taken up about the middle of October, bound up in bundles of 100 each, and put away in the cellar of the plaintiffs, at Carlisle, where they remained, ready to be delivered to the defendants, when called for; until the following spring, when they were taken to the residence of the defendants, at Newville, and tendered to them; but they refused to receive them.</p> <p>The defendants requested the court to charge the jury:</p> <p>1. That by the agreement of the 7th of September 1839, the plaintiffs were bound to go to the defendants and transfer or offer to deliver the trees mentioned in the agreement; and if the jury believe that the trees were too ponderous or bulky, then the plaintiffs were bound to go to the defendants a reasonable time before the time stipulated for the delivery (21st November 1839), and ask them to appoint a time and place when and where they would receive them.</p> <p>2. If the jury believe that the plaintiffs, when they received the note in suit, knew that the consideration of the same was a sale of multicaulis trees to the defendants, and at the same time gave an engagement in writing to deliver the trees on or before the 21st of November then next, and they failed to deliver them according to their contract, they are not bond fide holders of the note, without notice, such as are privileged from the effect of an equitable defence by the payers of the note.</p> <p>3. If the jury believe that the consideration of the note on which suit is brought, was 2000 multicaulis trees, to be delivered to the defendants on or before the 21st of November 1839, and the trees were not delivered or offered to be delivered to the defendants until the following April or May, the consideration failed, and the plaintiffs cannot recover.</p> <p>The plaintiffs requested the court to charge the jury:</p> <p>1. If this was a case of sale, the plaintiffs were not bound to deliver the trees at Newville, but the place of sale was the place of delivery. And if the trees were seasonably taken up by the plaintiffs, bound up in convenient bundles, prepared and ready for delivery before and on the 21st of November 1839, and the defendants made no demand and never sent for the trees, there is no such want of delivery on the part of the plaintiffs as to constitute a defence in this case.</p> <p>The court below adopted the distinction taken by the plaintiffs, and instructed the jury that the plaintiffs were entitled to recover.</p>

<p>A and B purchased an estate which was encumbered by liens to the whole amount of the purchase money: each entered into a separate covenant to the other to pay one-half of these liens, specifying which each was to pay: B failed to pay, by reason of which the property was sold by the sheriff, and purchased by A. Held, that the covenants were mutual and independent, and that A’s right of action against B was not affected by the fact that he had not paid the entire amount which he had covenanted to pay; nor by the fact that B had not covenanted to pay the whole amount of the lien upon which the property was sold, a part of it having been excluded by mistake in the calculation: and that the measure of damages in such case was the difference between what A paid for the whole property, and what he and his co-vendee had agreed to give for it.</p>

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>This was an ejectment by William Means against the Presbyterian Church, in the borough of Shippensburg and county of Cumberland.</p> <p>The parties admitted the original title to have been in Edward and Joseph Shippen, who, by deed dated 2d of June 1794, conveyed the same to John Means and Robert M’Call, as trustees, for purposes thus expressed in the deed:</p> <p>“ Whereas the said John Means and Robert M’Call have, by ■ their humble petition, prayed the said Edward Shippen and Joseph Shippen to grant a lot of ground in the said town of Shippensburg to them, the said John Means and Robert M’Call, their heirs, executors, and administrators, in trust for the use of the Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship and burial-ground; and the said Edward and Joseph Shippen, being disposed and willing to favour the said petition for the pious use and purpose aforesaid, therefore do, in consideration of one shilling in hand paid by John Means and Robert M’Call, grant, alien, enfeoff, and confirm to the said John Means and Robert M’Call, their heirs, executors, and administrators, 4 in trust for the use of the Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship,’ (the lot of ground described), to have and to hold the said described lot of ground, hereditaments, &c. &c. to the said John Means and Robert M’Call, their heirs, executors, and administrators, in trust for the use of the said Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship for ever, and for no other use or purpose whatever.”</p> <p>Samuel Hill, sworn. I knew old John Means and Robert M’Call. Doctor M’Call died first. William Means, the plaintiff in this suit, is the oldest son of John Means, who is also dead. I came to Shippensburg in the fall of 1794. I saw the installation of a clergyman on this property now in dispute. I think about two or three years after I came to Shippensburg, the Rev. Mr Walker was installed in “that church. I think Mr Walker continued pastor of that church for twenty-two or twenty-three years. The Rev. Mr Strong succeeded him as pastor. The Rev. Mr Smaltz was a supply for a short time before Mr Strong came there. Mr Strong continued there about eight years; Mr Smaltz about a year. The congregation was all that time called the Associate Reformed Presbyterian Congregation. As long as Mr Strong was there, it was called so, too.</p> <p>The Rev. Henry R. Wilson succeeded Mr Strong. He continued to preach in the same church until about a year and a half ago. The congregation is not altogether the same — there are a great many more. He preached there, I think, sixteen or seventeen years. I have held part of a seat there for thirty years and more, during Mr Walker’s and Mr Wilson’s time. They are not the same body of people, with the usual changes, that worship there. Not many of Mr Walker’s members worship there, as members. A good many of his hearers did attend there.</p> <p>The defendants then called a number of witnesses to prove that the worshippers in this congregation were always the same, making the usual allowances for deaths and acquisitions; and that about 1823, the church building was greatly enlarged and improved ; and that the Rev. Henry R. Wilson was then installed as pastor, and officiated as such for many years; and that the same congregation are now in possession of the church.</p> <p>To rebut this, the plaintiffs gave evidence to prove that the congregation was originally called Seceder; and that it was always, up to 1823, in connection with and under the government of the “ Associate Reformed Church,” and up to that time was always represented in the “ Associate Reformed Presbytery of Big Spring.” That at that time, when the Rev. Henry R. Wilson was installed as pastor, there was a large accession from a Presbyterian church in the vicinity. That the Rev. Henry R. Wilson was a member of the Presbyterian church, and in connection with the General Assembly; and that since his election, the congregation had always been represented in that body, and never since in the “ Associate Reformed Church.”</p> <p>The plaintiff then gave evidence to show a reorganization of the Associate Reformed Presbyterian Congregation, at Shippensburg, in 1839, after which this ejectment was brought.</p> <p>The plaintiffs’ counsel presented the following points, upon which they requested the opinion of the court:</p> <p>1. The deed from Edward and Joseph Shippen of the 2d of January 1794, to John Means and Robert M’Call, was available to vest the estate described in it in the grantees as trustees “ for the use of the Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship,” and by the terms of the deed it could not be converted to any other use or purpose.</p> <p>2. If the jury believe that previously to 1794, and ever since, there was and has been two distinct sects of Christians, one called “ Presbyterians,” who have a regularly organized church government, at the head of which is the “ General Assembly,”, and the other called the “ Associate Reformed Presbyterians,” who have also a separate and regularly organized church government, at the head of which is the “ General Synod;” and the deed of the 2d of June 1794, was in trust for the use of an Associate Reformed Presbyterian Congregation, as distinguished from a Presbyterian Congregation, then it is unlawful to devest the estate and interest of the Associate Reformed Presbyterian Congregation, and vest the same in a Presbyterian Congregation in ecclesiastical connection with the “ General Assembly.”</p> <p>3. If the jury believe that a congregation in connection with the Associate Reformed Church or sect of Christians and their judicatories, were in possession of the property in question as early as 1796 or ’7, and théy and their ministers remained in possession from that time, claiming the property as cestui que trusts under the deed of 1794, for four and twenty years, and during all that time remained in strict connection with all the judicatories of the Associate Reformed Church, to wit, the Big Spring Presbytery and Associate Reformed Synod, it conclusively identifies as matter of law a congregation in that ecclesiastical connection as the cestuis que trust under the deed.</p> <p>4. If the jury believe that the grantors in the deed of the 2d of June 1794, made that grant in favour of an Associate Reformed Presbyterian Congregation in ecclesiastical connection with the Associate Reformed Synod, as a distinct sect of Christians, and that the congregation now in possession is Presbyterian, and in ecclesiastical connection with the General Assembly, then the defendants have no title or right to the possession of the property in question.</p> <p>5. If the grant by the Messrs Shippen by their deed of 1794, was in trust for a congregation in connection with the Associate Reformed Church, as a distinct religious body, and such a congregation went into possession of the property, and the organization of the congregation after a period of twenty-one years or more, or at any other time or for any cause, was dissolved or lost, the estate would not thereby become extinct or lost; but would remain in the trustee, and would attach to the congregation whenever it became reorganized, whether that reorganization was composed of the same individuals as those dissolved or not; if the jury believe that the reorganization was composed partly of the old members, partly of their descendants, and partly of others; and all of whom are within the bounds or geographical position of, and belong to the ecclesiastical connection contemplated by the original grant.</p> <p>6. That the question who constitutes the cestui que trust under the deed of 1794, is not to be determined by the identity of the individuals who at successive periods worshipped as a congregation in the house in question, but by their ecclesiastical connection.</p> <p>7. That the charter of incorporation granted to the defendants cannot change or affect the rights of ownership in the property in question, nor convert the trust as expressed in the deed from its original purpose.</p> <p>8. If the deed of the Messrs Shippen was in trust for a congregation in ecclesiastical connection with the Associate Reformed Church, no portion of that congregation, however large, could change the purpose of the grant, and convert the property to the use of a congregation having a different ecclesiastical connection.</p> <p>The defendants requested the court to charge the jury upon the following points:</p> <p>1. The deed of 1794 mentions and intends a congregation then in existence at Shippensburg.</p> <p>2. If, on the terms of the deed, there be any doubt what congregation was intended, it may be ascertained from the facts, as proved by Raum, Hill, Devor, and the papers, to be the one then, and immediately after, meeting and worshipping together, and soon after using and building on the lot,</p> <p>3. The deed cannot be construed to mean either an exclusively Associate Reformed congregation, nor an exclusively Presbyterian congregation; but most properly means one composed of people of both denominations—particularly if there was then there such a mixed congregation.</p> <p>4. If the congregation that worshipped together in 1794, and before and after, and built the house in 1797, and enlarged it in 1822, and successively employed Mr Walker, Mr Strong, and Mr Wilson, and occupied and regularly worshipped in the house from 1797 till 1839, was composed of Associate Reformed and Presbyterian people, promiscuously, and of substantially the same body of people, their families, and descendants, with the exception of the usual changes by deaths, removals, accessions, &c.; and if no change has been shown to have taken place in their religious faith and principal doctrines, the defendants are entitled to hold, the house and lot.</p> <p>5. If there was the congregation mentioned in the deed, and it did occupy the house from 1797 till 1824, and then cease to exist, and became extinct; and if another congregation was created in 1839, though similar to the first, the new one would not be entitled to the property.</p> <p>6. If the present plaintiffs (though calling themselves a congregation) consisted of but four, or nine, or even thirty persons, first associated themselves together, or were associated by an exclusively Associate Reformed Presbytery in 1839, being then members of another and different congregation, and then elected Wm. Means and Henry Carlisle as elders, who were then also members of another and different congregation; and if all those persons, (or almost all), continue still members of another and different congregation, and not of the congregation at Shippensburg; and if all of them, except one or two, do not reside at Shippensburg, but from 4 to 11 miles off, they cannot recover in this suit.</p> <p>7. A verdict cannot be given in favour of the plaintiffs unless it is clearly shown, not only that defendants are not entitled to hold the property, but also that the people prosecuting this suit are the same, and the only congregation mentioned in the deed, and entitled to recover it from all others.</p> <p>8. If the deed gave the lot to a mixed congregation, and the present plaintiffs are exclusively Associate Reformed people, they cannot recover.</p> <p>9. By the deed of 1794, it is not any part of the description of the grantees, nor is it a condition of the right to use the lot, that the congregation should be attached to any presbytery, synod, or other ecclesiastical body; and it is no valid objection to the right of the defendants that they may have attached themselves either to the Second Presbytery of Philadelphia, or to the Presbytery of Carlisle.</p> <p>10. But even if connection with a church judicatory can have any effect in this case, still, if this congregation attached itself to the Philadelphia Presbytery, (which was an Associate Reformed Presbytery), which was attached to the synod of that church; if an agreement was made in 1822 between the judicatories of both denominations, (and both professing the same faith and doctrines), by whieh the Philadelphia Presbytery became attached to the General Assembly of the Presbyterian Church, and it was left optional with the congregations to preserve a separate presbyterial character; and the Philadelphia Presbytery was again divided into several, of which the Carlisle Presbytery was one; that under these arrangements, and by their own approbation, this congregation passed with these changes, and became attached to the Carlisle Presbytery, and has so continued in peace and good order; and still more—if the Associate Reformed Presbytery of Big Spring ceased to exist about 1821 or 1822, or at least was suspended and dormant from then till 1825, and this congregation never again joined it, such facts would not defeat defendants’ right to the house and lot.</p> <p>11. It is not the law, that a few individuals belonging to an old and numerous congregation, can detach themselves from it, from time to time, and join other congregations; and after the lapse of years, attach themselves to two or three other persons who never did belong to it, (all still being members of other congregations), and set themselves up as alone constituting the old congregation, so as to turn out the original congregation who have held the property peaceably for 47 years.</p> <p>The court thus charged the jury:</p> <p>“ As early as the 2d of June 1794, Edward and Joseph Shippen conveyed a lot of ground, numbered on the general plan of Snippensburg 216, to John Means and Dr Robert M’Call, their heirs, &c., “ in trust for the Associate Reformed Presbyterian Congregation at Shippensburg, for a place of public worship for ever,” Sec., “ and for no other use or purpose.” The original trustees are dead, John Means surviving Dr M’Call, and the present plaintiff, William Means, his heir at law. It is admitted and proved, that the present plaintiff seeks a recovery for the use of an Associate Reformed Congregation in connection with the Associate Reformed Presbytery of Big Spring, organized in February 1839, by the Rev. Mr Sharp, under the direction of that presbytery, of which he is a member, in the manner particularly detailed by him in his testimony.' The congregation in possession of the property deny the plaintiff’s right to recover, and say they are the cestuis que trust embraced within the provisions of this deed—in other words, they say they are the congregation contemplated by the Messrs. Shippen at the time their grant was made. This the plaintiff denies, and asserts that the congregation for whose use he brought this suit is the one (reorganized) for whom the trust was originally designed. The proper settlement of this difficulty will, I think, dispose of the principal one in the cause. You will observe by the terms of the deed, that this property was given in trust for “ the Associate Reformed Presbyterian Congregation at Shippensburg.” The definite article “ the” is prefixed—it is for the Associate Reformed Presbyterian Congregation, &c., obviously indicating a congregation then (1794) in existence in the borough of Shippensburg. The grantors, however, not only contemplated their grant for the benefit of a congregation then in Shippensburg, but in trust for an Associate Reformed Presbyterian one located there. Now there is no single denomination that answers in its connection and name the precise terms of the description used in this deed. If the Messrs. Shippen had stopped with the “ Associate Reformed,” the case would have been free from difficulty; or if they had said for the Associate Reformed and Presbyterian, there would have been no room for doubt as to who were intended, and the court could have executed the trust without inconvenience. But a difficulty has arisen in the grantors having embraced, by the terms used to designate their beneficiary, the names of two separate and distinct religious denominations—separate in their organization and ecclesiastical connection. The Associate Reformed body is one, and the Presbyterian body another. It becomes, then, indispensably necessary for you to inquire into the character of the congregation, before and at the date of this deed; and if there was a congregation in Shippensburg at that time, composed of members from both these bodies, answering the description of the cestuis que trust, it is a powerful circumstance in aid of your determining who were meant when this deed was executed. You will, of course, recur to the testimony in the case, as the only true criterion by which you should be governed. The principal, and, I believe, only witness, as far as I can now recollect, who speaks of the congregation before 1794, is John Raum. Samuel Hill speaks of it from the fall of 1794, which is after the deed was executed; and subsequently, he speaks of the installation of Mr Walker having taken place two or three years after he came there, and of the congregation being called the Associate Reformed Presbyterian, &c. Mr Moody speaks of it from April 1803, and after; that in its ecclesiastical connection from that time until shortly before or about the time Mr Wilson came there, it was under the care of the Associate Reformed Presbytery of Big Spring; that about the time Mr Wilson came there it was under the care of the Second Presbytery of Philadelphia; and on the dissolution of that body, under the care of the Carlisle Presbytery, both of which were, and the latter still is, under the care of the General Assemby of the Presbyterian Church. Neither of these two, so far as I can remember, said anything about the character of the congregation, other than its name and ecclesiastical connection. John Raum does, and goes back as early as 1790, or thereabouts, and speaks of the congregation worshipping in Ship-pen’s Grove, and in the German Church, before the one in dispute was built; and says “ the congregation, before the church was built, were part Presbyterians and part Seceders, and continued so afterwards; that the church was called the Seceder Church at that time; that there was a Presbyterian Church at Middle Spring, where some families who had horses and conveyances went to from Shippensburg, &e.</p> <p>The Associate Reformed Church is a branch of the Seceder Church, and very cofnmonly embraced with others in the general name of Seceders. Were they then the congregation meant by the Messrs. Shippen ? Or, were they the Associate Reformed part of the congregation with the Presbyterians, spoken of by the witness as composing one congregation, designed by the Messrs. Ship-pen to be embraced within the provision of this trust 1 If they were the one meant, are they the same congregation continued down by regular succession from that time until the present, making the usual allowance for deaths, removals, &c. 1 Upon this last inquiry I think the evidence clear and satisfactory. So far as the individual members are concerned, they seem to be the same; but the congregation is in a different ecclesiastical connection. This change in their ecclesiastical connection, however, does not alter their identity as cestuis que trust, if they were and are those named in the deed. The trust is there made without any reference to any ecclesiastical connection; and indeed, from the terms of it, it would be impossible to form one so as to meet the precise name used by the grantors. There is no one body answering in its ecclesiastical connection in its name and style to the Associate Reformed Presbyterian denomination. The Associate Church is presbyterian in its government and discipline ; the Reformed Presbyterian Church (the covenanters as they are commonly called) is also presbyterian in its government and discipline; so is the Associate Reformed Church, and so is the Presbyterian Church; but all are different in their ecclesiastical connection. The use of the names of two distinct bodies, by the grantors, as parties to be beneficially interested in their grant, shows the impossibility of ecclesiastical connection entering into their minds at the time of making it. This ecclesiastical connection, therefore, spoken of in the testimony and by counsel, so long as it is confined to a body answering in its faith, government, and discipline either branch of the cestuis que trust named in the deed, cannot affect the right of either, if otherwise entitled to the property. The connection was admitted in evidence mainly for the purpose of enabling you to judge of the identity of the congregation with that named in the deed. You must determine from all you have heard whether the congregation now in possession of the property was the one intended by the terms used in the deed; or whether the Associate Reformed Congregation, organized or reorganized in 1839, and for whose use this suit was brought, is the one for whose benefit this property was originally given ? Or whether it was designed for a mixed congregation, composed of both denominations, Associate Reformed and Presbyterian ?</p> <p>If the mixed congregation was designed, neither branch of these denominations can oust the party in possession. The plaintiff must recover on the strength of his own title, and not on the weakness of his adversary. How the facts are, you must determine, and find your verdict accordingly.”</p> <p>Answers to plaintiff’s points:</p> <p>1st and 2d answered in the affirmative.</p> <p>3d point. We cannot, under the facts and circumstances of this case, answer this point as here requested. Twenty-one years’ adverse possession doubtless gives right to the party in possession, as argued by counsel; but it must be adverse—and if the persons in possession are the same with those for whose use the grant was made, their ecclesiastical connection could not make their actual possession to operate in favour of another denomination not in possession of the property at all.</p> <p>4th point. We cannot instruct you as here requested.</p> <p>5th point, in the affirmative, if the facts are as here stated.</p> <p>6th point, in the negative.</p> <p>7th point, in the affirmative.</p> <p>8th point. This is also true, if the facts are as here stated.</p> <p>Answers to defendant’s points:</p> <p>1st and 2d answered in the affirmative.</p> <p>3d point. This is also true, if the facts are as here stated.</p> <p>4th point. This is also true, if the facts are as here stated.</p> <p>5th point. The trustees would support the estate for the beneficiaries entitled to it; and if the congregation designed by the Messrs. Shippen did for a time cease to exist, and another composed of members as indicated by plaintiff’s point, were subsequently organized, coming within the terms of the trust, they would be entitled to the enjoyment of it.</p> <p>The 6th, 7th, 8th, and 9th points are also true in law, if the facts are as stated.</p> <p>10th point. The first branch of this point we also answer in the affirmative, if the facts are correctly stated. The latter part I have no recollection of any evidence on which it can be predicated, and cannot instruct you as requested.</p> <p>11th point. This is also true as a general proposition of law.</p>

<p>The recital in a sheriff’s deed that the sale was made by a former sheriff, is not conclusive evidence of the fact; but the party claiming under it may show by other proof, that it was in fact made by the same sheriff who made the deed.</p> <p>A writ of venditioni exponas is directed generally to the sheriff of the county; and if the sheriff who receives the writ goes out of office before it is executed, his successor may proceed upon it to sell the property, and malee a deed to the purchaser.</p> <p>A trust as to real estate purchased at sheriff’s sale, cannot be established by parol evidence; nor is it competent for the defendant, in an action of ejectment against him or one holding under him, to prove a fraudulent combination between him and the purchaser to defraud creditors.</p> <p>A confirmation by the Orphans’ Court of a sale of real estate by an executor made in pursuance of its authority, is not complete until the purchase money be paid and a deed delivered. A sale and confirmation alone is not such a parting with the title, as would defeat a pending action of ejectment by the executor.</p>

Samuel S. Jackson against Jacob Keppel. This was a feigned issue under the Act of Assembly providing for the distribution of the proceeds arising on sale of real estate of the defendant in execution.

<p>If an Act of Assembly prescribe the form of the condition of a bond, and specify the nature of the acts and duties which the officer shall be bound to perform, it may be considered as directory; and notwithstanding it may designate acts arid things to be done beyond those specified in the Act, it is good as to those which are specified, and recovery may be had upon it against the sureties; unless the Act prescribes the form of the bond, and provides that it shall be taken in that form, and no other.</p> <p>An action may be brought against the sureties of a public officer immediately upon tho settlement of his accounts, notwithstanding the provision in the 9th and 10th sections of the Act of 1811; the state treasurer is not bound to wait six months after the settlement before bringing suit.</p> <p>A collector of tolls, who held his office for several successive yeaTS, and gave a bond each year, with different sureties, made payments throughout the whole time, which the commonwealth applied to the discharge of those debts which were first due by him, without regard to the date of the payment; held to be rightly appropriated.</p>

William Michael against William Siltzell. In this action the plaintiff declared in indebitatus assumpsit for $425, the price of a house and lot sold and conveyed by him to the defendant; for money had and received to the same amount; and for a balance of account settled.

<p>A certificate of proof by a subscribing witness to an agreement concerning lands, or an acknowledgment of it by the party before a magistrate, is enough to dispense with the common law evidence of execution.</p> <p>The terms of the recording Acts do not restrain their operation to specialties, but embrace all contracts concerning lands, provided they be in writing.</p> <p>It is not a good objection to the admission in evidence of an agreement for the sale of land, which is the subject matter of the action, that it does not particularly specify its location; especially if the party offering it, propose to follow it by proof of possession taken under it.</p> <p>In an action of ejectment against four defendants, upon all of whom the writ had been served, and against all of whom some proof had been given, the refusal of the court to direct the jury to find a verdict for two of them, that they might be examined as witnesses for the other two, is not error.</p>

<p>QUO WARRANTO. The Commonwealth of Pennsylvania, at the suggestion and on the relation of Jacob Africa against John Shaver.</p> <p>In October 1841, John Shaver was duly elected to the office of sheriff of the county of Huntingdon, and was duly commissioned by the Governor on the 3d of November 1841. On the 1st of November 1841, a prosecution was commenced against Shaver for bribing Christian Couts, before his election, to vote for him and support him for the office of sheriff. At January sessions 1842, he was tried and convicted; and at April sessions following, sentenced “ to pay a fine of $100 to the commonwealth, for the use of the county of Huntingdon, the costs of prosecution, and be imprisoned in the jail of that, county for one month, and be in custody until this sentence be complied with; and ordered by the court that John Simpson, coroner of the county, take John Shaver, the sheriff, into custody, and that he execute the said sentence upon him; and for this purpose the sheriff is ordered to deliver to the said coroner the keys of the jail of the said county, and the clerk of the sessions is ordered to certify said sentence to the coroner.”</p> <p>Whereupon, on the 18th of April 1842, his excellency, the Governor of Pennsylvania, issued the following supersedeas to the commission of John Shaver:</p> <p>“ Whereas, by a commission under my hand and the great seal of the State, bearing date at Harrisburg 1841, you, the said John Shaver, were duly commissioned sheriff of the said county, having been first returned according to law; and whereas, at the January sessions of the Court of Quarter Sessions of the said county, you, the said John Shaver, were tried and convicted of a misdemeanour ; and subsequently, to wit, on the 16th of April 1842, sentenced by the same court to pay a fine of $100 to the commonwealth, for the use of the said county, that you be imprisoned in the jail of said county for one month, as the law directs, pay the costs of prosecution, and be in custody until the sentence be complied with. Now, know you, that by virtue of the power and authority vested in me by the constitution and laws of this commonwealth, and for the causes above stated, it fully appears to me that you have not behaved yourself well in said office, and that you ought not any longer to exercise the said office of sheriff conferred upon you by virtue of such commission, I, David R. Porter, Governor, &c., do hereby revoke, annul, and supersede the aforesaid commission to you, bearing date the 3d of November 1841, and all and every of the powers, rights and duties incident thereto, and thenceforth you exercise or perform any of the duties of sheriff of said county of Huntingdon, or by virtue of the commission aforesaid, or to take any of the fees or emoluments which shall appertain to said office. Given under my hand, &c., this 18th of April 1842.”</p> <p>Notwithstanding, John Shaver continued to exercise the office and duties, and receive the emoluments of the office; whereupon this writ of quo warranto was sued out.</p>

Daniel Houser and Frederick Sherk, executors of Jacob Houser, deceased, against John Irvine, who survived Franklin B. Smith, partners trading in the name of Smith & Irvine. Smith and Irvine were partners in trade until the 13th of February 1832, and previous to that time were indebted to the plaintiffs’ testator by simple contract in the sum of $1129.32.

<p>APPEAL by George Lowman, administrator de bonis non, with the will annexed, of George Lowman, deceased.</p> <p>This was a petition by George Landis, assignee of Peter Landis and Elizabeth his wife, who was a legatee under the will of George Lowman, deceased, to compel the payment of the legacy. It appeared that an account had been settled by the administrator de bonis non in 1835, and that there was a balance in his hands of $1171, a share of which was claimed by the petitioner, under the will of the testator, which directed his estate to be equally divided amongst his children.</p> <p>The defence set up was—the testator in his lifetime held a bond of Peter Landis, for an amount greater than the legacy claimed, which the respondent claimed to set-off against the petitioner’s claim.</p> <p>The court below was of opinion that the set-off could not be allowed, and decreed the payment of the legacy into court, there to await the further order of the court relative to its payment to the wife.</p>

<p>ERROR to the Common Pleas of York county.</p> <p>Henry Peterman against Charles Gasche, with notice to Mathias Futterer, terre-tenant. The plaintiff had a judgment against the defendant for $400, payable in instalments of $50 a year, from 1835 to 1842, inclusive, which was entered in 1834. In 1839, the plaintiff issued this scire facias, with notice to the terre-tenant, calling upon the defendant “ to show why the said Henry ought not to have his execution against him for the debt and damages aforesaid,” &c. Upon the trial the jury found the following special verdict:</p> <p>“ That the four first instalments, due the 1st of April 1835,6,7, and 8, were duly paid by the defendant, and the costs of the original proceeding. That before the next instalment became due, the plaintiff issued his scire facias quare executionem non, and that nothing has been paid on the judgment, except the four first instalments and costs, as aforesaid. If, upon these facts, the plaintiff is entitled to recover a judgment de terris, then they find for the plaintiff, and pray the court to enter judgment, according to the requirements of the law, otherwise they find for the defendant.”</p> <p>On the 4th of January 1841, it was ordered, directed, and adjudged, that judgment be revived for and during the period of five yeai’s against the defendant’s real estate, to secure the payment of the four last instalments, which were not due when the writ of scire facias was issued. Same day, judgment for plaintiff on plea of nul tiel record.</p>

ERROR, to the Common Pleas of York county. The Commonwealth of Pennsylvania, at the instance of John L. Mayer, administrator de bonis non with the will annexed of Conrad Sherman, deceased, against Samuel Forney.

Samuel M’Dowell against Elias Baber and Roland Diller. This was an action of trover and conversion, to recover the price of the one-half of 291 tons of iron ore.

ERROR, to the Common Pleas of Dauphin county. This was an action of debt upon a negotiable note, by Benezer Hale, endorsee of John Snyder, against Theophilus Fenn. The defendant pleaded payment with leave, &c. and the plaintiff gave him notice to furnish the special matter which he intended to give in eyidence.

Joseph Lyter, for the use of Shammo & Finney, against John P. Leebrick.

The overseers of the poor of the borough of Lewistown against David W. Huling, Esq. The parties agreed to the following facts, to be considered in the nature of a special verdict: The defendant, and one Elias W. Kulp, were overseers of the poor of the borough of Lewistown for the year 1832.

This proceeding originated upon the petition of Alexander M’Elroy, assignee of Thomas Cook and Sarah his wife, to the Orphans’ Court, to compel the payment of a legacy to the said Sarah, given to her by the will of Alexander Scroggs, deceased, and alleged by the petitioner to be charged upon the lands of James Montgomery and David Brandt, the appellees. That part of the will of Alexander Scroggs, deceased, which is material to the subject, was as follows.

Charlotte W. Tyler, guardian of Sarah E. Tyler and Edwin Tyler, minor children of Edwin Tyler, deceased, against Harrisburg Bank. This was an action on the case to recover the damage sustained by the plaintiffs from the defendant’s refusal to permit the transfer of 130 shares of bank stock held in the bank in the name of Edwin Tyler, deceased, which they alleged was not his property, although the certificates of stock were in his name.

This was an action of trespass quare clausum, fregit, by Jesse Beale against John Patterson. - The plaintiff gave in evidence a warrant to Jesse Beale for 100 acres of land in Madison township, Perry county, dated the 8th of February 1838, and a survey made the 31st of December 1838, of 110 acres duly returned.

<p>The Court of Common Pleas has not power to set aside an award made under the Act of 1705, and refer it back to the same referees. But upon such report being referred back, if the parties appear before the referees, and try the matters in controversy, the error will be thereby cured.</p>

John Miller, administrator of Michael Maderia, deceased, against John S. Hiester. The facts of this case, and the questions of law raised, are fully stated in the opinion of the court.

Abraham Roland against Jacob Miller. This was an action of debt upon a bond, dated the 1st of April 1839, from the defendant to the plaintiff, in the penal sum of $1300, conditioned for the payment of $650, with interest at or upon the 1st day of April 1840, “ provided the said Abraham Roland shall pay, and have cancelled all and every judgment of record that now stands open against him, before the day of payment herein stipulated, without fraud or further delay, then the…

Peleg Brown against Nathan Brown and George W. Ralph. This was an action of debt founded upon a judgment obtained in the Supreme Court of the State of New York. The writ was issued to January term 1840, and was served upon Ralph alone, who appeared,- and in July 1840 pleaded in abatement the pendency of a bill in the Court of Chancery in the State of New York, between the same parties, for the same cause of action.

George Himes against Jacob Keller. This was an issue directed to try the right to the proceeds of the sale of the real estate of Peter Ege, in the hands of the sheriff. The plaintiff in error was the plaintiff below, and claimed the whole amount of a judgment: John H. Weaver v. George W. Woodburn, Peter Ege and Joseph A. Ege, for $2950. John H. Weaver sworn.

<p>Money contributed by individuals and deposited in the hands of a stake-holder as a wager upon the result of an election,'cannot be recovered back in a joint action by the contributors.</p>

This was an action of covenant by John Witman and George Witman, devisees of Bartholomew Witman deceased, and Elizabeth Witman, Catharine Witman and Susannah Witman, heirs of Samuel Witman deceased, who was also a devisee of Bartholomew Witman deceased, by their guardian, Andrew Greiner against John Paul. The action was brought upon a general warranty contained in a deed from John Paul to Bartholomew Witman conveying a tract of land.

Howell Hopkins, endorsee of the Southern Loan Company, against the Cumberland Valley Railroad Company. This action was founded upon the following note: Office of the Cumberland Valley Railroad Co., Carlisle, March Gth 1839. Six months after date, the Cumberland Valley Railroad Company promises to pay to the order of James Johnson, the sum of eight thousand dollars, without defalcation, for value received. Payable at the bank of the United States.

David Ferguson, for the use of John Cochran, against Thomap Finney. This was an action of assumpsit, in which the plaintiff declared for money had and received, and gave in evidence the following receipt: Received, May 5th 1824, of David Ferguson, two bonds payable by Jacob Frantz and Philip Brown, to Adam Brightbill, each bond for $400.

Abraham Fernsler against Henry Moyer. This was an action on the case brought by the plaintiff to recover damages for the seduction of his ward by the defendant. The court below instructed the jury that the plaintiff was not entitled to recover; that the relation of a guardian to his ward was not such as entitled him to recover damages for the loss of service, which is the gist of the action.

Esther Sheffer against George Dice and Andrew Dice. This cause involved the interpretation of the will of Jacob Sheffer, deceased; the question being, whether it created an estate for life or in fee in the plaintiff. “ In the name of God, amen. I, Jacob Sheffer, of York township, York county, concluded to make my will and testament while I have my good knowledge and understanding, thanks be to God fob it.

Daniel Mortberger, administrator of Samuel Ely, against William Silvis. This was an action of assumpsit, in which the plaintiff declared upon the promise of the defendant to pay him the amount of a judgment and execution of Mortberger, administrator of Ely, against valentine and G. M. Brobst, which had been levied upon the real estate of Valentine Brobst, in consideration that the plaintiff would forbear to sell the said estate upon the execution.

Elijah Boyce against George M’Culloch, Anthony Shorb, John Lyon, David Stewart, and William M. Lyon. This was an action of ejectment brought to enforce the specific performance of a contract made 11th of March 1829, between the plaintiff, and Gilbert S. Loyd, by which Loyd covenanted to sell and convey the land in controversy to the plaintiff, in consideration of $1 per acre, payable in instalments of $20 per annum, the last of which fell due in 1834.

The commonwealth against William Laub and others, his sureties. This was an action of debt upon the official bond of the defendant, as treasurer of Adams county, to recover the amount of moneys paid to him for tavern licenses, and licenses for the sale of foreign merchandise, and tin and clock pedlars.

<p>Whether a widow be entitled to recover interest upon a sum secured to her by recognizance, in a proceeding in partition in the Orphan’s Court, may, under particular circumstances, be referred to a jury.</p>

Shafner & Co. against Gilmore & Davis. Amicable action, in which the following facts were stated in the nature of a special verdict:— A fieri facias at the suit of Shafner & Co. against James R. Kirby, was placed in the hands of the sheriff on the 5th of December 1840, in the morning, and a levy made on merchandise of the defendants, consisting of various goods, &c., all personal property.

THIS was an appeal by John Mumper from the decree of the Orphans’ Court of York county, sustaining the exception to the report of auditors on the account of Henry Sidle, executor of the will of Michael Mumper, sen’r, deceased. Michael Mumper, sen’r, died on the 1st of June 1837. On the 3d of July 1837, his will was proved before the register of York county, and the same day letters testamentary were granted to Henry Sidle, the executor named in the will.

ADAM MENSCH against Henry Fox. This was an action of debt on bond given for the purchase money of a tract of land sold and conveyed to the defendant by the plaintiff as the administrator of Henry Leisir, deceased, by an order of the Orphans’ Court.

<p>ERROR to the Common Pleas of Berks county.</p> <p>This was an action brought by John Britton against Jacob D. Ludwig, to recover the amount of three executions issued by F. •Linderman, Esq., a justice of the peace; one at the suit of Lincoln & Goodhart v. Levi Bechtel, innkeeper, for $16.34, beside interest and costs; another at the suit of Herman Umstead v. same, for $99.84; and the other at the suit of Levi Bechtel, saddler, for $64.06 —amounting in all to $180.24.</p> <p>On the 19th July 1839, these executions were placed in the hands of John Britton, then the constable of Union township, Berks county, who proceeded to levy upon three horses, and some other articles as the property of the defendant in the executions. Shortly after or at the time the levy was made, Jacob D. Ludwig became bail for the delivery of the goods to the constable Britton, who left the same in defendant’s possession, and within twenty days entered special bail before the justice. Upon the entry of special bail the justice superseded the executions by directions in writing to the constable, upon the payment of costs. On the 29th of July 1839, the defendant -in the executions, in company with Ludwig, ' the special bail, called on the constable with the supersedeas, and paid the costs demanded by the constable, and took the following receipt in the handwriting of the constable, viz :</p> <p>“ Received July 29, 1839, of Mr Levi Bechtel, $2.13^- in full of my fees on three executions, and advertising, it being for suits brought by H. Umstead, Levi Bechtel, and Lincoln & Goodhart.”</p> <p>Subsequent to this proceeding, the constable was requested by some of the plaintiffs in the executions to proceed with the sale of the horses, &c., notwithstanding the entry of special bail and supersedeas by the justice, and in pursuance of this request the constable demanded the goods of Ludwig, and brought the above action to recover the amount of said executions. On the trial of the cause it appeared that there was an omission by the constable of about 30 cents costs, but it did not appear that Ludwig had any knowledge of it.</p> <p>The plaintiff gave in evidence the record of the judgments on the docket of F. Linderman, Esq., by which it appeared that special bail had been entered in one case only.</p> <p>Paper, dated 19th of July 1839. Inventory of goods; articles enumerated; bail on the same day by J. D. Ludwig, viz:</p> <p>“ I will go bail for the delivery of the above-mentioned articles, to be- delivered on the 27th instant, at 2 o’clock in the afternoon, or pay the debt and costs. Witness my hand this 19th day of July 1839.”</p> <p>The defendant gave in evidence proof of notice on the plaintiff to produce supersedeas.</p> <p>Ezekiel Beard affirmed. They, Ludwig, Britton, and Bechtel, were at my house in July 1839. Levi Bechtel had a small note from F. Linderman, Esq,, to John Britton, stating that Levi Bechtel had entered special bail, Jacob D. Ludwig, and on their paying the costs ho might stay the proceedings; this receipt was given at the time, and the costs were paid at the time.</p> <p>The plaintiffs in the executions were not willing that the proceedings should be thus arrested, and the constable proceeded to demand the property, and for its non-delivery brought this suit.</p> <p>The court below thus instructed the jury which was the subject of exception.</p> <p>“ Did the justice supersede the executions ? If he did, there can be no recovery by the plaintiff. If he superseded them on the payment of the costs, was that done ? If it was, then there can be no recovery in this suit. If the costs were not paid, that is the costs of the executions, the constable might proceed to demand and sell the property, and in that case would be entitled to recover. Whether the costs of the ,executions_ were paid or not, you will decide from the evidence; if they were, the plaintiff cannot recover.”</p> <p>The jury rendered a verdict for the plaintiff.</p>

<p>A testatrix, by her will, devised a part of her plantation to her son, and another part to her three daughters, and authorized her son, whom she appointed her executor, with the consent of her three daughters to sell the plantation if he thought proper. He sold the whole tract, with the assent of the daughters, for a certain price per acre. Held, that the devisees were entitled to the purchase money in the proportions measured by the quantity of land devised to each, without regard to value as to quality.</p>

<p>ERROR to the Common Pleas of Berks county.</p> <p>Elijah Deckert, Esq. against Peter Filbert and Anthony Bickle, This was" an action of trover, brought to recover the value of a stock of goods, which had been the property of the firm of Bickle & Sticker.</p> <p>On the 30th of January 1839, William Bickle, one of the firm, under his hand and seal, made a voluntary assignment of all the goods and effects of the partnership to Peter Filbert and Anthony Bickle, the defendants, and delivered the same to them, in trust for the benefit of the creditors of the firm, of whom certain ones were preferred. This deed was regularly recorded and bond given by the assignees, and an inventory and appraisement made amounting to $14,434.</p> <p>On the 11th February 1839, Frederick Sticker, in the name of Bickle & Sticker, made a voluntary assignment of the same property to Elijah Deckert, Esq., the plaintiff, in trust for the benefit of all the creditors of the firm without preference. This deed was also regularly recorded, bond given by the assignee, and an inventory and appraisement of the goods and effects filed, which, it appeared, was not made actually, but by copying’ the same from the former one filed by the first assignee. On the 2d of February 1839, Frederick Sticker published a dissolution of the partnership.</p> <p>The question of property presented by the issue depended upon the validity of these assignments. The court below, (Banks, President), was of opinion that the facts exhibited by the evidence proved the express dissent of each partner to the assignment made by the other, and, therefore, neither had any validity. The plaintiff took nothing by his action.</p>

This was an action of replevin by Rudolph Miller against Elizabeth Leidig, in which the jury found the following special verdict: John Kitch died in 1813, seised of a tract of land situate in Cumberland county, containing 140 acres 4 perches. He left a widow named Elizabeth, the above-named defendant, and also several children.

Rachel Stewart made her will, in which she appointed William Johnson her executor, and devised to the said “ William Johnson, his heirs and assigns, in .trust, as hereafter mentioned,” all her estate, of every kind and description, to the use of Elizabeth Baird. On the 17th of May 1822, William Johnson proved the will, and filed an inventory amounting to $1744.62-^. He died without settling any account of said trust, or of his executorship.

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>Elizabeth Crangle, widow' of Henry Crangle, deceased, and Robert J. Fleming, guardian of Henry Crangle, minor son of Henry Crangle, deceased, against the chief burgess, assistant-burgess, and town council of the borough of Harrisburg.</p> <p>This was an action of ejectment “ for a lot containing between 3 and 4 acres,” in the borough of Harrisburg. The title was vested in Henry Crangle, who devised the same to his widow for life, with remainder in fee to his son, Henry Crangle. The defence was, that the borough of Harrisburg had a right to appropriate this lot for the purpose of supplying the inhabitants with water, by virtue of the Act of Assembly for that purpose; and that the plaintiff, Mrs Crangle, had leased the lot to B. Hale, which lease had not expired when the ejectment was brought; but the latter ground of defence failed for want of proof of the fact.</p> <p>The defendants offered the petition of the president and town council of the borough of Harrisburg, under the fifth section of the Act of 26th March 1839, presented to the Common Pleas of Dauphin county on the 25th of August 1840, with the appointment of the viewers thereon; its continuance on the 18th of November 1840, returnable to January term 1841; the order of the court of the 11th of January 1841; the report of the viewers, dated the 15th of January 1841; with parol proof of the acts of R. J. Fleming relative to said view, and his declarations relative thereto; for the purpose of showing that the plaintiff assented thereto, and thus waived the benefits of the constitutional provision, (if such provision be operative), and for the purpose of showing that the defendants pursued the course pointed out in said Act of Assembly, and that the plaintiff could not maintain the present action. The plaintiffs objected to the evidence as stated in the offer, as immaterial and irrelevant, and that the acts of R. J. Fleming could not prejudice his ward’s estate, or Mrs E. Crangle’s. The evidence was given, showing a valuation and assessment of damages to the amount of $1087.50. Exceptions were filed to the report, but never disposed of by the court.</p> <p>The defendants then gave in evidence a bond of Samuel Pool and Michael Burke, datéd the 18th of June 1840, to R. J. Fleming, guardian of the minor son of Henry Crangle, in the penalty of $2000, with the following condition:—</p> <p>“ Whereas, the corporation of the borough of Harrisburg, by the location of their water-works, have taken one or more acres of land from the estate of Henry Crangle, deceased, and whereas the constitution requires that when lands are taken by any corporation for public use, the said corporation shall pay for or secure to be paid, the amount or valuation of the land taken. Now the condition of this obligation is such, that if the said Samuel Pool and Michael Burke, or either of them, shall pay or cause to be paid unto the aforesaid R. J. Fleming, guardian as aforesaid, the full amount or valuation of the land taken by the corporation for their water-works, as soon as the amount or valuation can be ascertained, without fraud or further delay, then this obligation to be of no effect, otherwise to be and remain in full force and virtue.”</p> <p>This bond was tendered to R. J. Fleming on the day of its date.</p> <p>The court (Blythe, President) instructed the jury, that the defendants having neither paid nor secured to be .paid to Elizabeth Crangle the damages done to her land, could not resist her recoverjr in this action : that the Act of Assembly, by virtue of which the borough claimed, afforded it no protection whatever. Verdict and judgment were rendered for the plaintiffs, for 2 acres 28 perches and 35-100ths of a perch.</p>

Samuel Hughes against Thaddeus Stevens, James D. Paxton, and others. This was an action of trespass quare clausum fregit, which involved the question of title to the locus in quo.

Eli Overdeer against John Fursht, with notice to Conrad Fursht, terre-tenant. Scire facias post annum et diem. On the 18th of February 1834, a judgment was entered in the Common Pleas of York county in favour of the plaintiff, against John Fursht, for $1500, conditioned for the payment of $736.14. John Fursht was at the time owner of certain real estate which became bound by the judgment, and which on the 1st of April 1837, he conveyed to Conrad Fursht.

John Good against Jacob Good. This case is reported in 9 Watts 567. The error now assigned was to the principles of defalcation adopted by the court in their charge to the jury. Hays, President.—The plaintiff, John Good, claims the amount due to him upon four bonds: the first payable on the 1st of April 1834; the second on the 1st of April 1835; the third on the 1st of April 1836; the fourth on the 1st of April 1837, each for the sum of $500.

Rule on James MTlhenny, administrator 'de bonis non with the will annexed of Robert Shannon, deceased, to .show cause why he should not pay to James Stewart, administrator of Jane Stewart, deceased, a legacy bequeathed to her under the will of the aforesaid testator.

This was an action of trespass by James Thompson against William Lee, to recover the price of a pair of oxen taken by the defendant. The defendant, who was a constable, justified under an execution at the suit of Peter Renter against Seth Moore. The oxen had belonged to Seth Moore, who transferred them to Henry Hileman, who transferred them to the plaintiff.

<p>If a vendor of land or real estate, after having put the vendee in possession agreeably to the terms of sale, and received part of the purchase money, take possession of it again and use it, without the consent of the vendee or his heirs, he or his assignee to whom he has sold the land a second time, is chargeable in an action of ejectment brought against either by the first vendee or his heirs, with the rents, issues, and profits, as long as he holds- and uses the same, to be applied to satisfy any balance that may be due and unpaid, of the purchase money at the time of retaking the possession, so far as the profits may be requisite for that purpose, when sufficient to answer it.</p> <p>If the regaining the possession by the vendor in such case, be effected by means of collusion with the tenant of the first vendee or his heirs, it is not necessary that a tender of the residue of the purchase money should be made by the latter before instituting an action of ejectment to recover the possession.</p> <p>The defendant in the ejectment in either case, will not be permitted to give evidence of the value of the improvements made by him on the land, which were not necessary for the profitable enjoyment of it.</p>

<p>The vendor of land, who has sold his claim or title merely, which, whether it be bad or good, the vendee agreed to take at his own risk, is a competent witness for the vendee in an ejectment by him to recover possession of the land upon such title, though part of the purchase money remains unpaid.</p> <p>A warrant taken for land in August 1776, in the name of R. M., whereon a survey was made in 1787; a settlement made on it in 1825 by the lessee of H. G. & H. W. claiming to be the owners of the warrant and land, which was assessed with county taxes from 1805 till 1817 inclusive, and sold by the commissioners of the county on account of the taxes not being paid, in 1820, at which sale the commissioners bought the land and sold it again in 1830, and after passing through the hands of three persons, the land was purchased and redeemed in 1831 by the lessors of the tenant, who was still residing thereon, cannot be considered as abandoned.</p> <p>Such warrant would seem to be good and rendered available by the Acts of Assembly of the 9th April 1781 and the 5th April 1782, notwithstanding it was granted by the Penns, former proprietaries of the State, as a province, after the 4th July 1776, when it ceased to belong to the Penns, and became an independent State.</p> <p>If A., believing himself to be the owner of land under a warrant and survey, which happen to be void, leases it for a term of years to a tenant, who according to the terms of his lease erects a dwelling-house and makes other improvements, and resides with his family thereon until the expiration of the lease, when he obtains a warrant for the land in his own name, founded on his personal residence while he was a lessee to A., the latter will be entitled to the benefit of such improvement.</p> <p>Where an agreement in writiiig, without date, altogether executory in its terms, contains, among other things, a stipulation that a certain sum of money shall be paid on the 1st of May 1838, the necessary inference is, that it was made before that day; and the agreement being in writing, it is not error in the court to draw this inference and to instruct the jury accordingly.</p> <p>An attorney employed to support the title of a defendant in an ejectment against that of the plaintiff, will not be permitted during the pendency of the action, or after judgment rendered in it against his client, but before the latter is turned out of possession under the judgment, to purchase the title of the plaintiff; and if he does, his client or the assignee of his client, may claim the benefit of it in a second action of ejectment brought by the latter to recover back the possession of the land from the vendee of the attorney; provided he pays or tenders before instituting his action, the amount of the money to the -vendee of the attorney, which the attorney paid and was bound to pay for the title so .purchased by him.</p>

<p>ERROR to the Common Pleas of Erie county,</p> <p>This was an action of debt on an insolvent’s bond, brought by Penderson Avery, the plaintiff in error, against Charles W. Seely and Samuel Hays, the defendants in error. The defendant, Seely, was arrested in Erie county, by the sheriff thereof, by virtue of a testatum writ of capias ad satisfaciendum, sued Out of the Common Pleas of Luzerne county, at the suit of the plaintiff in this case; and, being thus under arrest in the custody of the sheriff, gave the bond in question, with Samuel Hays, the other defendant, as his surety. The condition of the bond, after reciting that Seely was arrested and in custody of the sheriff by virtue of an execution issued “ by the prothonotary of the county of Luzerne, at the suit of Penderson Avery,” stated, “ that if the said Seely shall appear at the next term o.f the Court of Common Pleas of the said county, &c., or in default thereof, and if he fail in obtaining his discharge as an insolvent debtor, that he shall surrender himself to the jail of the said county,” then, &c. In the bond itself Erie county was mentioned as the residence of both the obligors, and was the only county mentioned in it. At the next succeeding term of the Common Pleas of Erie county, Seely presented his petition for the benefit of the insolvent laws, upon which the court made an order for proceeding thereon, without having come to a final determination of the same when this action was commenced. Seely did not appear at the next Court of Common Pleas of Luzerne county, and present his petition to the same for relief under the insolvent laws.</p> <p>The question in the court below was, whether Seely ought not to have appeared at and presented his petition to the Common Pleas of Luzerne county, during its next term; but having failed to do so, did his bond thereby become forfeited ? The court below was of opinion that he was not bound to appear at and present his petition to the Common Pleas of Luzerne county, but at the Common Pleas of Erie county, as he had done; and accordingly rendered judgment for the defendants. The plaintiff alleged that' the court erred in doing so; and that it should have rendered judgment in his favour.</p>

WRIT OF ERROR to the Common Pleas of Luzerne county. William M’Coy against James Michew, Neal M’Connell and Dennis M’Garatty. This was an action of ejectment for a tract of land in Hazle township, Luzerne county, containing 294 acres or thereabouts. The summons issued against James Michew, Neal Connor and Dennis Rodey.

<p>ERROR to the Common Pleas of Columbia county.</p> <p>This was an action of trespass by Isaiah Shuman against Daniel Costenbader, William Kitchen and James Donaldson. The questions argued in this court arose out of the special pleading of the-parties, which was very voluminous and not material to the merits of the cause as it was decided. The whole case is very fully stated in the opinion of the court. The cause was argued by</p>

<p>ERROR to the Common PJeas of Bradford county.</p> <p>Henry W. Haydock against George Tracy. Case in assumpsit. The plaintiff declared for goods sold and delivered to the defendant ; for goods sold and delivered to the defendant and one Ridgway, the recovery of which was barred by the Statute of Limitations, but which the defendant promised to pay. The only proof given in the cause was the deposition of Humphrey B. Dunham, the material parts of which were as follows:</p> <p>“ In the fall of 1837, he called on the defendant Tracy, and presented to him an account for merchandize furnished him (Tracy) and one Ridgway, by the plaintiff. Tracy acknowledged the correctness of the account so presented, but said he supposed it had been settled by his agents in New York, who had compromised with his creditors generally, and, as he supposed, with all; that, however, he had receipts or accounts, which would show whether it had been settled or not; that he would examine them, and provided he could not find proof of its settlement, he would satisfy the claim, either by remitting the amount, or, as he expected soon to visit the city, by calling on Haydock, the plaintiff, personally, and paying it. This is all the defendant said about it; and the only time he ever presented such an account to, or called on the defendant.”</p> <p>“ On looking at the paper handed to him, marked ‘ No. 1/ and annexed hereto, he thinks it is not the account above mentioned, presented to the defendant; that is" to say, it is not the same paper. According to the best of his recollection and belief upon the subject, he left with the defendant, the bill so made out and presented to the defendant, as above mentioned, and did not preserve a copy of it. The bill or account so presented to defendant, was not of the same amount, nor were- all the items or dates the same as those of ‘No. 1,” (the main difference, however, being that the interest on the account presented to defendant was computed to about the time it was presented: whereas, in paper ‘ No. 1,’ it appears to be computed to September 19th 1839.) ^The account so presented to defendant, the correctness of which was acknowledged by him, as aforesaid, was an account for merchandise furnished on the 20th of February and the 31st of July 1826, as per bills previously rendered, amounting together to the sum of $127.03, on which there was Credited, as of July 3Lst 1826, the sum of $30, and on which also, interest was computed and added, at the rate of 7 per cent, per annum on the balance, allowing six months credit on each of the said several bills.”</p> <p>“ The promise made by the defendant to pay the account above mentioned, as above stated, was made on Sunday; and he saw the defendant in the year 1837, on no other day but Sunday.”</p> <p>The court (Lewis, President,) instructed the jury that the evidence given did not sustain the plaintiff’s declaration, and he was not entitled to recover.</p>

<p>ERROR to the Common Pleas of Columbia county.</p> <p>This was an action of ejectment brought by Albert B. Ashton and Alfred R. Ashton, by their next friend1 John R. Ashton, and Isaac S. Ashton, John R. Ashton, Samuel R. Ashton and Augustus Ashton against Christian Ash and Jacob Ash, to recover a tract of land containing 247 acres 49 perches. Both parties derived their respective claims to the land from a warrant in the name of Robert Wilson, dated the 26th of January 1774, a survey made in pursuance thereof, and a patent founded on the same to Alexander Bartram, dated 29th of March 1775, reciting a deed of conveyance from Robert Wilson, dated 27th of January 1774.</p> <p>The plaintiffs, to establish their right to the land, offered, first, to show by a proclamation of the Supreme Executive Council of the State, issued the 8th of May 1778, in pursuance of the 3d section of the Act of the 6th of March 1778, that Alexander Bartram was attainted of high treason, having failed to render himself as therein required, and abide his legal trial for the treason thereby charged against him; that by reason thereof his right to the land became forfeited, and his title thereto vested in the State; that the State afterwards by deed, dáted 24th of March 1787, and executed by Charles Biddle, Vice-President, on behalf of the State, after reciting the proclamation and the failure of Bartram to render himself and abide his trial, by reason whereof and by force of the Act of Assembly aforesaid, he was attainted of high treason, and all his estate, real and personal, within the State was forfeited to its use, &c.; and that the 'agents for the State for the sale of confiscated estates in the county of Northumberland, having previously given due and legal notice of the day and place of sale, on the 28th of February 1787, sold the land at public sale, at the court-house in Sunbury, to Alexander Power for £51, in consideration whereof, and of the payment of the £51 by Power, did grant, bargain and sell the land in fee to him. A certified copy also from the minutes of the Supreme Executive Council was included in the offer, showing that Charles Biddle was Vice-President of the same at the time, and that he executed such deed of conveyance on behalf of the State.</p> <p>The defendants objected to this evidence, but the court overruled the objection and admitted the evidence; the defendants excepted. This exception was made the ground of the first error.</p> <p>T,he plaintiffs then gave in evidence a regular chain of title by deeds of conveyance from Power down to Samuel Ashton, of whom the plaintiffs were the heirs at law.</p> <p>The defendants claimed under a sale and conveyance of the land by the county treasurer for taxes, assessed in 1814,1815 and 1816; and after proving an assessment made upon it as unseated in 1814, offered a deed of conveyance, dated the 15th of November 1816, from James Loughead, county treasurer, to Daniel Montgomery. This was objected to by the plaintiffs. The defendants then gave evidence of an assessment made on the land as unseated for the year 1820, amounting to. #5.66, and offered in evidence another deed, dated the 5th of August 1822, from William Wilson, county treasurer, to John C. Boyd, in connexion with the first treasurer’s deed, and a regular succession of deeds of conveyance from the vendees of the two treasurers down to the defendants; with evidence also showing that they had been in possession of the land under these deeds more than five years, and had made improvements thereon of great value. It being understoqd that no bond had been given by the purchasers at either of those treasurer’s sales for the surplus money after paying the taxes and costs accrued thereon, this evidence was offered for the purpose of showing in the first place, that the defendants, though no such bonds had been given, had acquired a right to the land by virtue of their possession for five years, under the clause in the 3d section of the Act of the 3d April 1804, (4 Smith’s L. 202), directing the mode of selling unseated lands for taxes, which declares that “ no action for recovery of said lands shall lie, unless the same be brought within five years after the sale thereof for taxes as aforesaid.” And in the second place, if they were not entitled to hold the land, that they might have the value of their improvements ascertained by the jury, and paid by the plaintiffs agreeably to another clause in the proviso to the same section, providing “ where a recovery is effected, that in such cases the value of the improvements made on the lands after the sale thereof for taxes, shall be ascertained by the jury trying the action for recovery, and paid by the person or persons recovering the same before he, she or they shall obtain possession of the lands so recovered.” This evidence was objected to by the plaintiffs, and the court overruled it. To the opinion of the court the defendants took exception, which is the basis of the second error assigned.</p>

<p>ERROR to the Common Pleas of Union county.</p> <p>George Darr against John Egbert and Michael Smith. This was an action of debt upon an insolvent bond. John Egbert was arrested upon a ca. sa., at the suit of George Darr, and gave bond for his appearance at the next term to take the benefit of the insolvent law; his application was rejected, whereupon he surrendered himself to prison in discharge of his bail. While thus in prison he executed another insolvent- bond with Michael Smith as his surety to George Darr, the same plaintiff, conditioned for his appearance at the next term to take the benefit of the law; this bond was approved by an associate judge. He did appear, and his application was again rejected by the court. This suit was brought on the last bond. The defence was, that the bond was illegal and void, and therefore there could be no recovery upon it.</p> <p>Lewis, (President), was of opinion, upon a question of evidence which determined the cause, that however illegal the bond was, the defendants were estopped from asserting its illegality; that having taken the benefit of it, they must abide the consequence; and directed a verdict for the plaintiff.</p>

<p>ERROR to the Common Pleas of Union county.</p> <p>George Kleckner against John Klapp. Assumpsit, founded upon the following agreement:</p> <p>Article of an agreement made and entered into the 25th of March 1836, between George Kleckner,. of Hartley township, Union county, Pennsylvania, of the one part, and Henry Charles of the township, county and state aforesaid, of the other part, witnesseth, that the said George Kleckner does, by these presents, agree to lease for rent, unto the said Henry Charles, all that parcel or tract of land, &c., for the term of three years, containing 100 acres, more or less, &c.; and the said Charles agrees to cut no timber more than is necessary for making fences, no hay nor straw to be Sold nor given off the place; the said Charles is to pay all the taxes that may be assessed against said property; the house and lot occupied by Doughenbach is to be excepted; and the taxes of the said lot and house the said Charles shall be exempted from paying. For, and in consideration of the above-mentioned property, said Charles does agree to pay the said Kleckner $60 for the first year, $80 for each of the other two years, and give bail for the yearly rent of the above-mentioned condition. ,In testimony whereof we, the said parties, have hereunto set our hands and seals the day and date above-mentioned.</p> <p>George Kleckner,</p> <p>H. Charles,</p> <p>John Klapp, Surety.</p> <p>Witness, Charles Mason.</p> <p>The defence was, that it was a joint obligation, upon which this action against the surety alone could not be maintained.</p> <p>Lewis, (President), instructed the jury that the action was well brought, and that the plaintiff was entitled to recover.</p>

<p>ERROR to the Common Pleas of Northumberland county.</p> <p>Mary Weeks against Jacob Byerly and Jacob Haas. This was an action of ejectment for a tract of land.</p> <p>Henry Repley and his wife died seised of a tract of land, leaving issue, three children: John, Mary married to Jesse Weeks, and Elizabeth. They made a partition of the land into three parts. That which was allotted to Weeks and wife contained 71 acres; and for which this ejectment was brought. The parties executed mutual releases to each other. That to Jesse Weeks, after reciting the regular chain of title down to Henry Repley and to Margaret Repley, his wife, proceeded as follows : “ who being so thereof seised, died intestate, leaving issue, three children, viz.: the said John, Mary, the wife of Jesse Weeks, and Elizabeth, the wife of Adam Gilger, to whom the same, by the laws of the commonwealth, did come. Now know ye that the said John Repley and Jane his wife, Adam Gilger and .Elizabeth his wife, and in consideration of the sum of $91, to them'-in hand paid by the said Jesse Weeks, at and before the sealing and delivery thereof, the receipt whereof they do hereby acknowledge, and thereof acquit and for ever discharge the said Jesse Weeks, his heirs, executors and administrators, by these presents have, and each and every of them hath remised, released and- for ever quit-claimed, and by these presents do, and each and every of- them doth remise, release and for ever quit-claim unto the said" Jesse Weeks, and to his heirs and assigns, all the estate, purparts and dividends, right, title, interest, property, claim and demand whatsoever, of them the said John Repley and Jane his wife, Adam Gilger and Elizabeth his wdfe, in law or equity or otherwise howsoever, of, in, to, or out of,” &c. &c.; and concludes thus : “ To have and to hold, all and singular, the premises hereby remised and intended só to be, with the appurtenances unto the said Jesse Weeks, his heirs and assigns, to the only proper use and behoof of the said Jesse Weeks, his heirs and assigns for ever.”</p> <p>It was proved that Jesse Weeks paid $91, the amount mentioned as the consideration of the deed, for owelty of partition. The land was levied and sold by the sheriff, as the property of Jesse Weeks, and purchased by Jacob Haas, the defendant. On the subject of notice, the following proof was given and evidence rejected :</p> <p>James Porter, sworn. I was in the court-house when the property of Jesse Weeks was crying. I saw a notice in writing on the court-house door. Don’t know who it was signed by. I don’t know who it was put up by. I don’t know whether Weeks was here at the time or not, but I think he was.</p> <p>Mary Weeks, sworn. I don’t know anything of any papers put up at the court-house door. There is none in my knowledge or possession. Never seen any'such paper among my husband’s papers.</p> <p>The plaintiff offered to prove the contents of the paper spoken of by the witness, to wit: that bidders were notified that Jesse Weeks had only a life estate in the property then selling as his; that it belonged to his wife, Mary Weeks, as one of the heirs of John Repley, deceased ; and also, to prove that Haas had knowledge of this.</p> <p>James Porter, sworn. I was here when the land was crying. I had no conversation with Haas. I read the notice.</p> <p>This evidence was offered and rejected because it did not appear by whom the notice was put up,- or by whom signed, or in whose behalf given; and because the notice itself was not produced, or its loss accounted for.</p> <p>The court below was of .opinion, that as to two-thirds of the land in controversy, Jesse Weeks was a purchaser, inasmuch as he derived title to it by virtue of the deed to him from the other two heirs; but that as to the other third, he took in right of his wife; and therefore the plaintiff was entitled to recover the one undivided third of the land, and as to the other two-thirds, they directed a verdict for defendants.</p>

<p>A grantor with covenant of general warranty is not a competent witness in an action of ejectment, in which the outstanding title granted by him is set up as a defence.</p> <p>Whether an actual settlement has been made, duly prosecuted or abandoned, must necessarily be a matter of fact referrible to the jury. The interruption of the settlement for a period of six months would not of itself amount to an abandonment, unless accompanied by acts or declarations indicative of such an intention.</p> <p>To acquire title by actual settlement, under the Act of 22d of September 1794, it is necessary that grain should be raised: this is not to be construed as meaning grain in its confined sense, but every esculent which maybe and frequently is used as a means of supporting a family, and which may be derived from the cultivation of the soil.</p>

George W. Jones against George Gundrim. Replevin. Leonard App and Henry C. Oyer, being the owners as tenants in common of a forge and lands, leased the same for a term of years to Joseph Allen, in consideration of the'making of certain specified repairs, and the payment of one ton and a quarter of bar-iron. Joseph Allen assigned the lease to the plaintiff. .

William Clark against Thomas Myers, late sheriff. This was an action against the sheriff for taking insufficient sureties upon a writ of replevin at the suit of John Jackson against William Clark. The plaintiff offered in evidence the record of the trial, verdict and judgment in the action of replevin, Jackson v. Clark.

<p>One whose ark is obstructed by a dam in Penn’s Creek cannot use the common law remedy of abatement; but must resort to that provided by the statute.</p> <p>In an action of trespass for destroying a mill-dam et alia enormia, it is competent for the plaintiff to give evidence of the amount of loss which he sustained by reason of the stoppage of his mills.</p>

<p>ERROR to the Common Pleas of Northumberland county.</p> <p>The county of Northumberland against John Bloom, late treasurer. This was an appeal by the commissioners from the report of the auditors settling the account of John Bloom as treasurer for the year 1840, who reported a balance in his hands of #4660.34. The only question of law was, whether the plaintiff might not charge the defendant with omissions ánd errors in the settlement of his account as treasurer for the year 1839. The court below (Lewis, President) was of opinion against the plaintiff, and instructed the jury to find according to a calculation presented to them.</p>

<p>However general the terms of a contract may be, it only comprehends those things in respect to which it appears the parties proposed to contract. Hence, after the dissolution of a partnership, one of the firm assigns all his interest in the effects, for a valuable consideration, and takes a covenant of indemnity against all debts due by the firm. Held, that such indemnity will not cover a debt which did not appear upon the partnership books, and was not made known to the assignee at the time of the contract of indemnity.</p> <p>The Statute of Limitation, in New York, is not an available defence for one who had been beyond the jurisdiction of their courts, during the time which had elapsed; and the same construction will be given to their statute here.</p>

<p>CERTIORARI to the Quarter Sessions of Union county, to which there was an appeal by the overseers of the poor of Beaver township, Union county, from the order of two justices of the peace, removing Jonathan Zerley, a pauper, from the township of Washington to the township of Beaver, in said county. The case came up on an exception to the opinion of the court.</p> <p>The court below quashed the order of removal, on the ground that it was granted by two justices of Washington township; but the parties agreed to reinstate the case, that the main question might be decided.</p> <p>Jacob Zerley resided in Beaver township from the year 1824 until the spring of 1841, when he purchased property in Washington township, and removed to it. His son, a lunatic, who was born in 1806, always lived with and formed part of his father’s family. The father died in Washington township, soon after he removed to it. Jonathan, the son, became chargeable to Washington township after the death of his father; and the question was, to which township he was legally chargeable.</p> <p>The court below affirmed the order of removal.</p>

This was an action on the case by the West Branch Bank against Thomas Moorehead, founded upon his endorsement of a note of Daniel Musselman. The defendant pleaded payment. Daniel Musselman had two notes in bank, one endorsed by William Donaldson, which fell due on the 29th of April, and another endorsed by Thomas Moorehead, which fell due on the 4th of May, upon which this suit was brought.

Jacob Farley against John Ranch. This was an action of slander, in which the words alleged to have been spoken were: “ You are going to swear like you swore a hole in the still-kettle, for old Isaac“ thereby meaning that the said Jacob Farley committed perjury on the trial.of a certain issue,” &c. The defendant pleaded “ not guilty, with leave to justify.” The cause was tried principally upon the plea of justification; and the defendant called several- witnesses to prove…

This was an action of assumpsit by Davenport, Wycoff & Co. against Seneca Freeman and Almond Woodcock, founded upon the endorsement by the defendants of the negotiable note of John Earl, Jun. The plaintiffs gave in evidence the note of John Earl, Jun. to the defendants, for $500, and their endorsement of it to the plaintiffs; and then proved the.waiver of protest by the defendants.

This was a report of viewers, in favour of a public road in Silverlake township. Exceptions^ were filed to it in the court below, which, upon argument, were overruled; and the road was “ confirmed, and ordered to be opened.” The error assigned in this court was, that the court omitted to fix the width of the road.

Harvey Bailey against Samuel Stewart. Debt on bond. Harvey Bailey and John Fisher entered into the following agreement: “ Article of agreement, made this 21st of March 1835, between Harvey Bailey and John Fisher.

Nicholas Kindt- against Nancy Rohr. This was an action of covenant founded upon the following agreement: “Article of agreement, indented, made and concluded this 10th day of January 1840, between Nancy Rohr of the one part, and Nicholas Kindt of the other part, witnesseth, that the said Nancy Rohr doih, for the consideration hereinafter mentioned, agree to make a clear deed for 10 acres of land, lying on Water street, thence south along Stiles’s lot and others far enough to…