Volume 3 — Wharton's Pennsylvania Reports

<p>A special allocatur is still necessary in the ease of a certiorari, to remove proceedings in the Quarter Sessions on the opening of a road in the County of Philadelphia, notwithstanding the provisions of the act of 13th June, 1836, “relating to roads, highways and bridges.”</p>

A writ of foreign attachment in case issued out of this Court, returnable to the present term, in which Maris & Son were plaintiffs, and Schermerhorn and Marsh were defendants.

<p>A second writ of error is not a supersedeas of execution, although bail has been given; if the first writ abated by the act of the party, as by suffering a judgment of nonpros.</p>

<p>1. The 14th section of the act of the 26th of March, 1814, which provided that when a majority in number and value of the creditors of an insolvent, should consent in writing thereto, it should be lawful for the Court to make an order, that the debtor shall be released from all suits, and the property he might afterwards acquire, be exempted from execution for any debt contracted, or cause of action created, previous to such discharge for seven years thereafter, was not unconstitutional in respect to a dissenting creditor, where the contract with such creditor was made after the passing of the act of 1814.</p> <p>2. The act of the 16th of June, 1836, which repeals the act of 1814_, does not impair any right acquired by an insolvent under the 14th section of the act of 1814.</p> <p>3. It seems that the act of limitation, does not run during the seven years allowed to the debtor, by the act of 1814.</p>

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Allen Megargel and John Dewees, trustees of Joseph Lewis, an insolvent debtor, against Joseph Saul, Israel Lancaster and Ann G. Lewis, to recover possession of a certain tract of land, situate in the county of Philadelphia.

<p>This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Frederick Stoever against Robert Rice, to recover a certain messuage and lot of ground, situate in the City of Philadelphia.</p> <p>On the trial of the case before Barnes, President, on of January, 1834, the circumstances appeared to be as follows:</p> <p>The defendant was tenant of the premises in question, under one Robert Fleming, who claimed to be owner of the same in fee simple, by virtue of a sheriff’s sale upon an execution.</p> <p>*On the 1st of July, 1811, John Cook, being then the owner of the premises, mortgaged them to Robert Fleming, for the,sum of $3000 ; which mortgage Fleming assigned oh the 31st of May, 1813, to John Dickson and Robert Fleming (himself) executors of Robert Gordon, deceased.</p> <p>A judgment was obtained in the District Court of Philadelphia, on the 11th of June, 1812, by Daniel Mann against John Cook, which judgment was renewed from time to time. It became á lien on the premises on the 19th of September, 1821.</p> <p>In 1822, Fleming agreed with Cook to take the premises off his hands, and that a title should be made to him under the mortgage.</p> <p>Accordingly a scire facias was sued out by Robert Fleming, who survived John Dickson, and who, with the said John Dickson, were surviving executors of the last will and testament of Robert Gordon, deceased, assignee of Robert Fleming, against John Cook to December Term, 1822, of tbe District Court of Philadelphia. And on the 80th of November, 1822, under a judgment confessed in that suit, the premises were sold by the sheriff to Fleming, who purchased them through his counsel and agent, Mr. Peters. The sheriff agreed with Mr. Peters, that the mortgagee’s receipt for the purchase-money should be accepted in lieu of. the purchase-money; and Mr. Peters directed the sheriff to have a deed of the premises drawn to Fleming the purchaser, which was accordingly done, and notice given to Fleming by Mr. Peters, that the deed was lying in the sheriff’s office. Some weeks or months after the sale, the premises were taken possession of by Fleming, but without the sheriff being in any way privy to that act; and were held by Fleming, by himself, or his tenants, down to the time of the trial. He never offered the sheriff the receipt for the purchase-money, nor did he call for the deed which was drawn for him, or pay the costs of the action, or take any other step towards perfecting his title; on the contrary, when the sheriff’s officer called on him for the costs, he was unable to get them from him; nor had they been paid or offered to be paid, down to the time of the trial; nor had a receipt been tendered for the purchase-money.</p> <p>Between two and three years after the sale to Fleming, and after the sheriff who made the. sale had died and been succeeded by another, viz. on the 23d of May, 1825, Fleming obtained from the District Court, a rule upon the new sheriff to show cause why he should not acknowledge to him a deed of the premises sold him by the former sheriff. That rule was then made absolute. After obtaining it, Mr. Thomas Mitchell, as the agent of Fleming, prepared a deed from the new sheriff to Fleming, which he placed in the sheriff’s office, to be executed and acknowledged, Mitchell being assured by the said sheriff, that the acknowledgment would be made.</p> <p>These steps being taken, nothing further was done by Fleming *for two or three years more, and until the second of the sheriffs aforementioned, had got out of office, and a third come being at sheriff’s, prothonotary’s, and other offices, the deed drawn by Mitchell, and the other papers belonging to it could not be found, though diligent search is said to have been made for tliem.</p> <p>A venditioni exponas issued to March Term, 1829, under the judgment mentioned above to have been obtained by Daniel Mann, against John Cook, and the premises were sold under it to the plaintiff, Frederick Stoever, jun., on the 24th of March, 1828, to whom the sheriff acknowledged a deed,- and who thereupon brought this action to recover possession of the property.</p> <p>Beside the foregoing facts, showing, as was contended, the unreal character of the sale of the premises to Fleming, under the mortgage, it was contended on the part of the plaintiff, that circumstances appeared on the face of the papers exhibited by the defendant, which made the reality, of the mortgage itself questionable.</p> <p>The plaintiff contended,</p> <p>1. That the mortgage itself was unreal.</p> <p>2. That the sale to Fleming under the mortgage was a mere cover for the mortgagor’s (Cook’s) property. That there never was any design on the part of Fleming, to take a deed from the sheriff, -until alarmed into it by the levy made under Mann’s judgment in 1828.</p> <p>3. That Fleming could not lawfully purchase the premises at a sale held by himself as executor, it being the case of an executor purchasing at his own sale.</p> <p>4. That though the mortgage and the sale under it were bona fide and legal too, the defendant had forfeited by his laches all the equity upon which he otherwise might rely to resist the plaintiff’s claim, by long and extravagant delay to take a deed and perfect his title.</p> <p>5. In answer to the suggestion, that Fleming, apart from his right as a purchaser, stood in the position of a mortgagee in actual possession of the mortgaged premises, and could not be expelled from them, but upon payment of the mortgage-money due him, the plaintiff replied, — 1. That if Fleming were a mortgagee in possession of the mortgaged premises, he could not under the law of Pennsylvania retain possession against the plaintiff. 2. That Fleming’s possession was tortious and fraudulent, and therefore could not avail him. 3. That Fleming was not the mortgagee ; having ten years before the period in question, namely in 1813, assigned the mortgage for a valuable consideration, and by deed regularly executed and recorded, to the estate of Robert Gordon, deceased, and having never since then had any concern in it, except as Gordon’s *executor. That the possession was not taken by Fleming as Gordon’s executor, but in his own individual capacity appeared in various way. 1. By the deposition of Mr. Peters. 2. By the paper produced by Mr. Mitchell. 3. By the two deeds being drawn to Mr. Fleming in his individual capacity. 4. By the fact of Fleming’s agent signing the conditions of sale, “for Robert Fleming.” 5. By the absence of all proof to the contrary.</p> <p>The learned Judge, however, charged the jury as follows: “This is an action of ejectment: there is a single question of fact in the ease, and that is whether there was a sufficient consideration for the mortgage: that is the only question of fact made. Other circumstances have been commented on. There is no evidence to justify you in presuming that the mortgage was fraudulent. My instructions to you, are to find a verdict for the defendant.”</p> <p>The jury found a verdict accordingly; and the plaintiff took a writ of error, and assigned several exceptions; but the only error alleged in the argument, was in the charge as above stated.</p>

<p>IN ERR'OR.</p> <p>1. In assumpsit on a contract alleged to have been made with the plaintiff, a native of France, by an agent of a society, of which the defendants were members, upon which contract the plaintiff came over to this country, to teach the art of making sewing silk, it was held that a deposition of a third person, stating certain conversations between the said agent, and the plaintiff and the deponent, relating to the situation and prospects of the plaintiff, ought to have been admitted in evidence; but the Judge having, at the conclusion of other testimony, offered to admit parts of the deposition in evidence, and the counsel for the plaintiff not offering the deposition at all in evidence after the offer of the Judge, it was held that he could not assign this for error.</p> <p>2. On the trial of the same cause, the plaintiff’s 'counsel offered in evidence a certificate of the Franklin Institute, sotting forth that they had awarded to the plaintiff a silver medal, “ as a testimonial of the satisfaction they had experienced from the silks exhibited by him.” Held that the certificate was properly rejected.</p> <p>3. It was also held that a witness examined on behalf of the plaintiff, could not be asked whether he was “ present when a bill relative to the employment of the plaintiff, by the United States, was before the House of . Representatives of the United States, and what then took place,” nor whether he was “ present at a conversation between the envoy of a foreign government and the plaintiff, at which the. former made offers to the latter, to induce him to go over to his country, to teach the art of reeling silk,” &c.</p>

<p>IN ERROR.</p> <p>1. In assumpsit for money had and received, the plaintiff gave in evidence an order drawn by Y. Z. & Co. upon the defendant, whieh stated that a certain sum had been placed in their hands by W. S. & Co., for the payment of freight on certain barrels of flour, shipped by B. & P., per schooner Forrester, consigned to W. S. & Co., provided no claim was made on the same by B. & P., for a violation of contract on the part of the plaintiff, in not consigning the schooner to W. S. & Co.; and requested the defendant, should B. & P. authorize the same by admitting that they have no such claim, to pay over the said sum to the plaintiff. The plaintiff then offered a witness to prove that the defendant had received from the drawer the money mentioned in the order. Held, that the evidence was admissible, although it was not accompanied with the stipulation to produce other proof of a promise by the defendant to pay ; the plaintiff not having been called upon at the time to give such stipulation.</p> <p>2. It was held also in the same case, that a bill of lading for the flour mentioned in the order, signed by the plaintiff and another, and containing a receipt endorsed, signed by W. S. & Co., for the flour mentioned in the ' bill of lading, and stating that payment of freight was refused on account of a supposed violation of contract, and to be regulated in Philadelphia with the shippers — was admissible'on the part of the plaintiff.</p> <p>3. One offered as a witness on the part of the plaintiff, stated on his voire dire, that he was attorney in fact for the plaintiff, and had a demand of his own against the plaintiff, but that the plaintiff was able to pay him without the money, though he supposed that he should get his portion of it; that he had not settled with the plaintiff, and could not tell which was debtor; nor had this money been appropriated to pay him. Held, that under the circumstances, he was a competent witness.</p>

<p>IN ERROR. •</p> <p>1. In an action by A. to the use of B. against C., upon an alleged promise by C. to pay the plaintiffa debt which O.’s father (D.) owed him, for sea-stores furnished by the plaintiff to a certain vessel in 1827 and 1828, then owned by D., and which vessel was transferred in 1832 by D. to C., the plaintiff having proved that E. the master of the vessel, had, after the transfer, paid certain claims against the vessel, proposed to ask a witness whether E. had not told him that he paid the money by authority of the defendant, out of the earnings 'of the vessel: Held, that the evidence was properly rejected.</p> <p>2. It was also held, that the plaintiff could not ask what D. said, in the absence of C., as to the ownership of the vessel.</p> <p>3. The goods in the above case were furnished from a store belonging to B., but which was kept by A. in his own name, during the absence of B.; the defendant having given some evidence to show that B. was in partnership with E., offered m evidence a receipt signed by E., in 1831, acknowledging the receipt of a promissory note from D. “ on account of ' store bill of E. and B.” : Held, that it was to be presumed that the note was negotiable, and .that B. had been made responsible upon it, and that therefore the receipt was admissible.</p> <p>4. Held, that if the transfer of the vessel was made on condition that the defendant should pay the claim of the plaintiff, or if the defendant at the time agreed to pay it, there might be a consideration for the promise. Secus, if the transfer was made without such condition, and the promise was made a year afterwards.</p> <p>5. Whore an action is brought-by A. to the use of B., proof of B. being- in partnership with ^another person who is equally interested in the amount, will not defeat the action. If the fact is material to the defendant, he may have it put on the record by motion to the Court.</p> <p>6. It is not error that the Court requested the jury if they found for one of the parties, to find specially as to certain matters of fact in dispute in this cause, especially if the jury find'for the other party.</p>

<p>1. A married woman having a separate estate may give or lend the income • of it, if at her disposal, to her husband as to any other person. When it is uncertain whether money received by such husband was intended as a gift or a loan, the jury in an action against the husband’s executors may take into consideration among other circumstances, evidence given to prove that harmony did not always exist between the husband and wife.</p> <p>2. Where money has been lent by a wife, having a separate estate, to her husband, the statute of limitations does not begin to run against the debt, until the death of the husband.</p> <p>3. Interest should be allowed on such debt, in an action against the executors of the husband, from the time of his death; and where there has been coercion or other improper eonduct on .the part of the husband, the jury may give interest for the time before his death.</p> <p>4. Where on the trial of an action against an executor on an alleged assumption of his testator, the defendant’s counsel admitted that certain manuscript account books, offered in evidence by the plaintiff’s counsel, were in the hand-writing of the testator, it was held that this admission did not estop the counsel from questioning the authenticity of a particular in his address to the</p> <p>*5. Where an action was referred to arbitrators, undér the act of and on the trial before the arbitrators the was offered as a witness, having assigned her interest, and the sum of $50 was fixed by the arbitrators as the amount of costs, and paid by her to one of the . arbitrators, and she was then examined as a witness; but no record was made of the payment of this .sum, and the arbitrators found for the plaintiff, with costs; and the money paid by the plaintiff, was applied towards the payment of the arbitrators’ fees, and other expenses of the arbitration, but was inadequate for the purpose, and afterwards the plaintiff died; it was held that the notes of her testimony before the arbitrators could not be read in evidence on the trial in court, although the full amount of the remaining costs was paid in during such trial.</p>

<p>CASE STATED.</p> <p>1. It is well settled, that when real estate is ordered to be sold, and the proceeds bequeathed, the persons beneficially interested may elect to take the fund as real estate.</p> <p>2. If a married woman, having a separate estate, becomes discovert, the restraints upon the disposal of the estate inconsistent with its general character, which attached during coverture, cease to exist while she is sui juris.</p> <p>3. A testator appointed W. R. and M. W. executors, and empowered them to sell certain real estate; and the moneys thence arising she bequeathed to her two daughters, A. 0. and M. W., and to her son W. R., equally to be divided among them; but the share allotted to her daughter A. 0. she directed to be held by her brother W. R., in trust for her separate use, and not to be liable to her husband’s control, &c.; adding, “ and it shall be in her power to dispose of the same by any writing in the nature of a will, notwithstanding her state of marriage ; and if she shall die without having made such disposition thereof, then the said personalty shall go to her daughter R.” Letters testamentary were granted to W. R. alone. At the date of the will, the husband of A. C. was alive. After his death, W. R. and A. 0. conveyed their undivided two-thirds of the real estate to M. W. Held that the conveyance was valid, and vested the whole title in M. W.</p>

The President, Directors, and Company of the Belvedere Bank, brought an action on the case in that Court, against William Eichman and Christopher Midler; and on the 11th of July, 1837, obtained a judgment for the sum of $1628 98, upon an award of arbitrators.

On the return, of a certiorari to the Court of Quarter Sessions of Lehigh County, to remove the proceedings on an appeal by the overseers of the poor of the township of Upper Milford, against the overseers of the poor of the township of Lower Maccungie, the following facts appeared.

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case, brought to March term, 1835, by The Columbian Steam Boat Company against John S. Adams.

<p>IN ERROR.</p> <p>1. Where an act of incorporation provided that each member should pay to the trustees, for the time being, of a certain corporation his proportion of certain expenses, and declared that the trustees should have power to sue for and recover the same, it was held that the action against a member for his proportion of the expenses, ought to be brought in the name of the trustees, and that they might declare both in their natural and official capacities'.</p> <p>2. Where an act of incorporation of a certain company ised the assessment of certain rates upon each member, “ his heirs and successors,” in respect to his land ;■ it was held, in an action against a person who had purchased the land of one of the ^'original corporators, that the books of the corporation were admissible in evidence against him to prove amount proportion thereof.</p> <p>3. The 4th section of the act of 20th March 1810, which provides that appeals from the decisions or orders of two justices, shall be decided on the facts and merits only, was intended to apply to the case of an appeal from the judgment of one justice, in a civil suit or proceeding.</p> <p>4. Where an action was brought before a justice of the peace in the name of A. B. “Treasurer of the Penn’s Manor Meadow Company,” it was held, that the plaintiff had a right on the appeal to amend by substituting the trustees of the company as plaintiffs, so as to conform to the act of incorporation; and that it was error to refuse the amendment.</p>

<p>IN ERROR.</p> <p>The condition of a bond, reciting that the obligor had sold a certain tract of land to the obligee and that there were certain incumbrances on the land, existing by judgment and otherwise, declared that the bond should be void, if the obligor, his heirs, executors, &c., should, at all times' thereafter, save, indemnify, and keep harmless, the obligee, his heirs, &e., against all judgments, liens, claims, demands, suits, actions, charges, dues, troubles, and expenses, whatsoever, by reason of any mortgages, judgments, arrearages of purchase money, &c.: in debt on the bond against the executors of the obligor, it was Add, that it was not a sufficient breach, that the obligor had not paid the arrears of purchase money, due to the commonwealth, without showing that the commonwealth had instituted some proceeding against the land, to obtain payment, or that the obligee had paid the money to the commonwealth; although it was alleged, that the defendant had promised to pay; and that in consequence of a promise to pay the amount, the plaintiff had released a purchaser under him, from a lien for the money due to the commonwealth.</p>

<p>CERTIORARI.</p> <p>In April, 1836, a petition was presented to the Court of Quarter Sessions of Bucks County, praying for the appointment of a jury to view and lay out a certain road. Viewers were accordingly appointed, who reported that they had viewed and laid out the road applied for. Their report was filed at September Sessions, 1836, and confirmed nisi on the 13th of September. At December Sessions, 1836, upon petition, a jury of review was appointed, who reported to February Sessions, 1837, that they weret not able to agree. This report was confirmed nisi on the 14th of February. On the 13th of May, 1837, the clerk of the Sessions issued an order to open the road, as laid out by the viewers; which order was quashed by the Court of Quarter Sessions; and the Supreme Court, on appeal, affirmed the decree of the Sessions quashing the order.</p>

<p>IN ERROR.</p> <p>1. The merits of a judgment obtained before a justice 'of the peace, cannot be inquired into on the trial of an appeal from a judgment given by him on a scire facias upon the original judgment, unless, perhaps, it appear upon the record of the original suit, that the justice had not jurisdiction thereof.</p> <p>2. Therefore, it was held, that on the trial of an appeal from a judgment of a justice of the peace, on a scire facias guare executio non, it was not competent for the Court to go into evidence showing that the title to land was involved in the original suit; although by the practice of the Court, the declaration on the appeal was for money had and received, and the plaintiff opened his case upon the original cause of action, and gave in evidence the promissory note upon which the suit was brought, v</p>

<p>IN ERROR,.</p> <p>1. A notice sent through the post office to the maker of a note, is not such a demand as the law requires, where his residence is supposed to be ascertained.</p> <p>2. Where the notary was informed, on injury, that the maker resided in or near a post-town in an adjoining county, it was held that a demand sent through the post office was not sufficient to charge the endorser.</p> <p>3. Where a note has been discounted by a bank, it seems that it would not be due diligence, if the notary inquired only of the directors and officers of the bank, respecting the residence of the first endorser.</p> <p>4. It is settled, that whether or not due diligence was used in making inquiry for the endorser, is a mixed question of law and fact: The Court are to give their opinion on the law to the jury according to the circumstances as they appear; but the jury must decide the fact whether there was due diligence or not.</p>

<p>IN ERROR.</p> <p>1. Where an assignment was made by a sheriff of a replevin bond, to the defendant in the replevin, who brought suit against the obligors and obtained judgment by confession against one of them, who was an inhabitant of another state, it was held, that the remedy against the sheriff was suspended during the continuance of the proceedings upon the bond; and that a suit could not be maintained against him after such assignment, without judicial evidence of the insolvency of the obligors.</p> <p>2. The mere taking an assignment of a replevin bond does not discharge the sheriff.</p>

<p>IN ERROR.</p> <p>1. On the trial of an issue to determine the validity of a will, one of the subscribing witnesses having proved its execution, testified, on the cross-examination, that he heard of there having been a former will: Held, that he could not be asked, on such cross-examination, whether he had ever heard the plaintiff say what had become of that former will, and whether it was destroyed.</p> <p>2. On the trial of the same issue, a witness was called by the defendant, and asked if he was present at any conversation between the plaintiff, the principal devisees under the will, and the testator, about the disposition of his property, and what that conversation was: Held, that the question was properly overruled: not being connected with the testamentary disposition then in issue.</p> <p>3. On the trial of such issue, evidence is not admissible to prove the contents of a former will, unless notice has been given to produce such former will, or some evidence be given or offered, to show that it has been destroyed: And it was held, that a witness could not be asked if the plaintiff ever told him what had become of such former will.</p> <p>4. Where the validity of an alleged will is contested on the grounds of imbecility of mind and undue influence on the testator, it is not error to charge the jury, that “ facts and circumstances were the primary evidence on which they must rely, and not the opinion of witnesses as to the soundness or capacity to make a willnor is it error to charge in such case that “ the influence exercised in procuring a will which is sufficient to set it aside, must be such as destroys free agency. There must be imprisonment of the body or mind ; and that unless the jury were satisfied that there was such physical force exerted, arising from actual duress, or imprisonment of the body, or such mental force^ arising from threats, as prevented free agency, they were not to consider the influence exerted by the testator’s daughter as improper, or sufficient to invalidate the will.</p> <p>5. It is not error, that the Court below allowed a party to recall a witness and ask him a question which might have been asked at a former stage of the cause ; unless, perhaps, the witnesses of the other party as to the point had been dismissed, after the testimony in chief was closed.</p>

<p>in error.</p> <p>1. In slander, though evidence of all the words alleged need not be given, it seems necessary that at least some of those that are actionable should be proved as they are laid. ' .</p> <p>2. It is not actionable to say of a physician that he is “a two-penny bleeder.”</p> <p>3. A declaration in slander charged the defendant with asserting of the plaintiff 11 He is not a physician, but a two-penny bleeder.” — The words sworn to by one witness were “If doctor F. is a two-penny physician I am none ; I am a regular graduate, and no quack.” Another witness swore to the-following words, “ Doctor F. is no regular bred physician; he has no diploma; he kills his patients, and bleeds them to death.”— Held, that the proof did not support the declaration.</p> <p>4. It seems that it is not actionable to charge a physician in Pennsylvania with want of a diploma, or of a collegiate training.</p>

<p>IN ERROR.</p> <p>1. A case stated for the opinion of the Court, ought, like a special verdict, to contain facts, and not the mere evidence of facts.</p> <p>2. A presumption of one fact from others, is an inference of fact; and although according to the rule of law, the jury may bo bound to make the presumption, yet the Court cannot make it without them.</p> <p>3. "Where a case was stated for the opinion of the Court below, setting forth that the ancestor of the defendant executed a bond to the plaintiffs’ testator more than twenty years before the bringing of the suit, and setting forth also various circumstances alleged by the plaintiffs as sufficient to repel the presumption of payment arising from the lapse of time; and the Court below, on this case, gave judgment for the plaintiffs; the Supreme Court, on error, reversed the judgment; and remitted the case to the Court below for further proceedings.</p>

<p>IN ERROR.</p> <p>1. The law is now settled in Pennsylvania, that in replevin a set-off is inadmissible in the sense in which that term is commonly used; but under the defalcation act the tenant may in replevin deduct from the rent due, the damages he may have sustained by the landlord’s breach of covenant in the same lease, relating to the demised premises, and constituting part of the consideration of the rent.</p> <p>2. Where a lease recited that the lessee was to make certain alterations and improvements in bulk windows, &e., and that the lessor agreed to contribute a certain proportion of the amount, and at the expiration of the lease he was either to receive back such proportionate sum, the lessee leaving the premises as he received thenq or to take the improvements made by the lessee at a fair valuation, with the deduction of such proportionate sum; and after the expiration of the term, no valuation having been made or attempted, the lessor sold the premises with the improvements to a stranger, and distrained upon the goods of the tenant for the rent in arrear, it was held, in replevin by the tenant, that he could not sot off against or deduct from the rent due, the value of the improvements or damages for taking them.</p>

<p>IN ERROR.</p> <p>1. A witness cannot be interrogated by the party calling him, as to irrelative matters although on a previous cross-examination he has been questioned as to such matter, and given testimony.</p> <p>2. On the trial of an action for work and labour done, in furnishing gas fittings for the defendant’s house, a witness produced by the defendant having given evidence to "x'show that the work was badly done, was asked in his cross-examination whether the had not made the gas fittings at the Exchange, and certain other public places: held, that the defendant’s counsel could not ask the witness whether the gas fittings made by the plaintiff for those places were not defective as to render it to remove them.</p>

<p>IN ERROR.</p> <p>1. In an action on tlie case for a libel the declaration averred that the plaintiff was an applicant to the Court of Quarter Sessions for a tavern license, and that the defendant maliciously, &c, intending to injure him, &e. presented to the judges of the said Court a remonstrance, containing the false, scandalous, malicious words following, viz. speaking of the tavern for which the plaintiff was an applicant, “It, (the said tavern meaning,) is not designed for the accommodation of travellers, but merely calculated, (thereby meaning that the said plaintiff intended it,) as a place of resort for the idle and dissipated.” Held, that the plaintiff could not produce evidence on the trial of his good conduct and character.</p> <p>2. Where words which might otherwise be libellous are contained in a remonstrance which a citizen has a right to present to a public authority, malice must be proved by the plaintiff; and unless it be proved the action is not maintainable, although the allegations are shown to be false.</p>

<p>APPEAL.</p> <p>1. It is a general rule, that when a will contains two clauses, totally inconsistent and incapable of being reconciled, the latter shall have a preference.</p> <p>2. A testator directed that his wife should have, during life, the annual interest or income arising from the rents and sales of one equal third part of his whole estate, lands and tenements, whether the same consisted of legal or equitable titles, after all necessary expenses, &c., in recovering the same and completing the titles thereof, &c. first deducted. In a subsequent clause he directed that his personal estate, after certain deductions, “ and also deducting thereout so much as may be necessary for discharging my just debts, and completing my titles to my Kentucky lands,” should be divided among certain persons: Held, that the cost and charges of completing the titles to the Kentucky lands were to be paid out of the personal estate. -, '</p>

<p> APPEAL. </p> <p>1. A petition under the Acts of Assembly relating to trusts and trustees, ought to set forth enough to show the nature and ground of the claim, so that it may appear upon the record what was asked and what was done.</p> <p>2. But where the petition stated that the trustee had in his hands a portion of the estate of A. B. to be disposed of according to the will of A. B., the greater part of which was payable to the petitioner, and that on the settlement of his accounts a certain sum was found to be in the hands of the trustee, of which a certain sum was payable to the petitioner ; and it appeared by the answer that all the circumstances were known to the respondent, and had been before the Court on a previous citation, and were upon its records, and no exception was taken in the Court below to the form of the petition, this Court refused to reverse the decree, on the ground of the petition being defective in setting forth the case.</p>

An application was made to the Court, on the 26th of January, 1838, by Mr. Keating on behalf of one William P. Overick, under the following circumstances.

<p>Writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought in that Court by David Hartley and Sarah Ann his wife, in her right, Jane Pennel and Edward Pennel, a minor, by Nathan R. Potts, his guardian, and John C. Jones, against Isaac H. Jones, Peter Weyant, Jacob Moore, and Isaac Rush, to recover divers messuages and lots of lands, situate in the city and county of Philadelphia.</p> <p>The facts upon which the controversy between the parties arose, were principally as follows:</p> <p>Isaac Jones died on the 29th day of December, 1829, seized of the premises in question, and leaving two sons, John C. Jones and Isaac H. Jones; and four grand-children, the children of a deceased daughter, viz. Isaac Rush, Edward Pennell, Sarah Ann Pennell, who married David Hartley, and Jane Pennell. In the year 1807 lie executed a will bearing date the 15th day of January, in that year, by which he devised the principal part of his estate to his son Isaac H. Jones and his children, and to his grandson Isaac Rush; and reciting that his son John C. Jones had already received from him a full share, or more, of his moneys and estate, and had squandered it away, he bequeathed to him the sum of five dollars, cash, &c.</p> <p>On the 13th day of March, 1826, Isaac Jones, the testator, executed a conveyance to Thomas R. Tunis in fee, for the consideration of $10,000, expressed in the deed, of all his real estate situate in the city and county of Philadelphia. This deed was absolute on its face.</p> <p>On the 19th day of May, 1828, Thomas R. Tunis and wife executed a reconveyance of the same property to Isaac Jones in fee.</p> <p>The will of 1807 was proved in the office of the register for the probate of wills for. the city and county of Philadelphia, on the 1st day of June, 1830. The executors therein named having renounced, letters of administration were granted to John C. Jones, and Isaac H. Jones. John C. -Jones appealed from the probate of the will; but the appeal appears to have been withdrawn in December, 1830.</p> <p>*This ejectment was brought in the District Court to September term, 1833. The sheriff returned “summoned,” as to Jones, Weyant and Moore, and nil habet as to Rush; and found twenty other persons in possession as terretenants, who, under the provisions of the act of assembly, were added as defendants. One of these terre-tenants was a Dr. Matthews.' On the trial of the case, before Judge Stroud, in January, 1836, the defendant’s counsel offered evidence to prove a republication by parol of the will of 1807, between the date of the reconveyance by Jones and the death of the testator; which evidence the learned judge refused to admit. The defendant’s counsel then offered to prove by parol, that the conveyance to Tunis was not absolute, but was in fact made in part to raise a certain sum of money to pay the debts of Isaac Jones, and after the accomplishment of that object, to reconvey to the grantor. This evidence also was overruled, and a verdict passed for the plaintiffs.</p> <p>A writ of error was taken out; and after argument, the Supreme Court decided that the republication of the will might be proved by parol; but that two witnesses were necessary to the proof, and that the identity of the instrument must be established ; but that it was not necessary that the will should be actually present at the time of replication, nor that the subscribing witnesses should prove the repuhlication; and that it was not necessary, that the declaration should be made at the same time to the witnesses. It was also held, that the parol evidence offered to prove that the conveyance to Tunis was in trust for the grantor, was not admissible. (See 2- Wharton’s Reports, 103.)</p> <p>A venire facias de novo having been awarded, the cause came on again for trial, before Pettit, president, on the 24th of February, 1837, when the plaintiff’s counsel gave in evidence the conveyance to Tunis, and the reconveyance, and proved that the plaintiffs were the descendants of Isaac Jones.</p> <p>The defendant’s counsel then gave in evidence the will executed in 1807, the renunciation of the executors, and the letters of administration granted to John C. Jones and Isaac II. Jones; and produced several witnesses to prove declarations of the testator relating, as was alleged, to the will of 1807, with the view of showing a republication of it after the reconveyance by Tunis.</p> <p>Witnesses were then produced on the part of the plaintiffs, to rebut this evidence, and to prove, among other things, that a new will was made by Isaac Jones, after the reconveyance by Tunis. It is not material to this report to state further the evidence of these witnesses, excepting the following testimony of one Nathan Bunker.</p> <p>“ I knew old Isaac Jones: some short time before his death I had *a conversation with him about making his will. It was between the loan of $20,000 from an insurance of which I was a director, and his death. • lie called on me, and stated that he had solicited Thomas R. Tunis to act as executor to a will he was about to- make; that Mr. Tunis consented, on condition that I should be with him; after some delay I consented to actwith Mr. Tunis as executor. I am unable to call to my recollection all that he said; he spoke much of his intentions; he said what disposition he intended to make; he said he was an old man, and desired to have his worldly affairs arranged, and consulted me about it. I recollect, too, his referring to a young man, a cooper, who was then working for us as a grandson. He spoke of him with sympathetic feeling, and perhaps made some inquiry as to his habits ; as far as I know it was favourable ; I think the young man was an apprentice, but am not certain. He spoke of his previous misfortunes, his paying large sums for his son John, the one at the salt business up town, a long while before. His general views consisted with my notions of equity.' I told him I would not act on any other will. He said he had consulted Thomas R.‘ Tunis, whose views corresponded with mine on that point. I never saw the old gentleman afterwards; he said then he would make his arrangements accordingly. When I heard of his death, I was under the impression he had made a will, and that I was an executor, but heard nothing of it; never was called to act.”</p> <p>The learned judge, in his charge to the jury, after mentioning the circumstances attending the conveyance, and the reconveyance, stated, that by the conveyance of 1826, the will of 1807 was revoked, and that to give it validity again, it was necessary to prove that it was republished by the testator between the 19th of May, 1828, and the day of his death. He then stated the law as it was laid down by Judge Sergeant on the writ of error in this case as reported in 2d Wharton’s Rep. 110. He then remarked in substance “ that it sometimes occurs that a jury are obliged to cut a knot which they cannot untie. This may be, when the facts are nearly in equipoise, and there is no other mode of settling a controversy. But perhaps a contest about the republication of a revoked will does not present such a case. The burthen of proof is upon the party asserting the republication. If the evidence be of an inconclusive character; if the truth be involved in doubt and obscurity; if the jury do not see their way clearly and satisfactorily, the law of the land furnishes a rule for the government of all who are interested: the intestate act, which has been deemed by experienced judges, (see 16 Serg. & Rawle, 87,) as making, in ordinary cases, an equal and just distribution of estates of deceased persons, may then relieve the jury by being allowed to go into operation. The language of the Supreme Court is as follows: £ The evidence to establish a republieation ought *to be clear and satisfactory to establish the intention to republish, as well as the identity of the writing referred to.’ ”</p> <p>The judge then summed ujd the evidence, and recapitulated some of the main arguments of the counsel on both sides.</p> <p>In the course of his remarks on this part of the case, he said in substance as follows: “It has been argued by the plaintiff’s counsel, that as it appears from Mr. Bunker’s testimony, that Isaac Jones intended at one time to make a new will, so it may be inferred from various matters in evidence that he did so after the reconveyance by Mr. Tunis; and that it was destroyed or lost without the consent or agency of the maker of it, and that he, therefore, died under the impression that such a new will existed, and that the will of 1807 was fraudulently preserved and produced on the part of the defendants. The judge referred to several parts of the testimony on which an effort had been made to sustain the argument. He told the jury that they would decide for themselves in these matters, as in regard to the other facts of the case ;• he- said he thought they were entitled to consideration; -and if the jury adopted the views urged by the plaintiff’s counsel upon this subject, there was an end of the cause.”</p> <p>The judge then called the attention of the jury to the reply which the defendant’s counsel had made on this point; recapitulated their argument, and told -the jury it was for them to determine between the parties.</p> <p>The judge also said that changes in the estate of Mr. Jones’s property and of his family from 1807 till the period of his death, had been commented on by the counsel on both sides, in aid of their causes respectively. The judge thought them as the counsel had alleged them to- be, proper for the consideration of the jury, in connection with the rest of the cause, and that it was for the jury to decide in relation to them.</p> <p>Whereupon, the counsel for the defendant excepted to the charge of the judge.</p> <p>The judge remarked, that as he was- not aware he had charged upon the law, except in exact obedience to the directions of the Supreme Court, whose opinion he had read to the jury, he requested the exception or exceptions to be stated:</p> <p>Whereupon, the counsel for the defendant stated two exceptions.</p> <p>“ First. To so much of the charge as related to- the doubt and *obscurity, and the intestate law, and to all that the judge said as to the duty and power of the jury on that head.</p> <p>Second. So much of the charge as related to the argument ■ of the plaintiff’s counsel concerning the making by Isaac Jones of a new will after his conversation with Mr. Bunker, and the destruction or loss of such will; and to the judge’s stating to the jury that he thought that the parts of the testimony on which an effort had been made to sustain this argument were entitled to consideration; and that if the jury adopt the views urged by the plaintiff’s counsel upon this subject, there would be an end to the cause.”</p> <p>The counsel also said, that while they stated th.ese two exceptions under the request of the judge, they claimed and reserved the right to make any other and further exception to the whole or any part of the said charge.</p> <p>The jury found for the plaintiffs, and the defendant took a writ of error, and filed the following assignments of error.</p> <p>“ 1. That it does not appear that any writ issued out of the Court below, under the signature of the prothonotary and seal of - said Court.</p> <p>2. That it does not appear (except by certain docket entries returned with the record) that the sheriff df*the said city and county made a return of any writ between said parties.</p> <p>3. That the writ (if any) issued in the Court below without a precipe, signed by the counsel or party.</p> <p>4. That a declaration was filed after the verdict in the above case without the consent of or notice to, the counsel of the said plaintiffs in error.</p> <p>5. That the cause was tried in the Court below without an issue joined between the parties.</p> <p>6. That a verdict was had and a judgment thereon entered, against Caleb B. Matthews, although he never appeared in the said Court, or joined issue with the said plaintiffs below.</p> <p>7. That the said action is improperly brought — in this that the said defendants in error have joined therein different persons, in possession of different properties, in -different situations, and holding under different titles, in the same writ.</p> <p>8. That the verdict and -judgment thereon are irregular and illegal — in this that a general verdict and judgment were entered in the above suit against different persons, in possession of different properties, in different situations, and holding under different titles.</p> <p>*9. That the learned judge erred in charging the jury that ‘It sometimes occurs that a jury are obliged to cut' a knot they cannot untie; this may be, when the facts are nearly in equipoise, and there is no other mode of settling a controversy than by a verdict; but perhaps a contest about the republication of a revoked will does not present such a case. The burthen of proof is upon the party asserting the republication. If the evidence is of an inconclusive character; if the truth be involved in doubt and obscurity; if the jury do not see their way clearly and satisfactorily, the law of the land furnishes a rule for the government of all who are interested. The intestate act, which has been deemed by experienced judges (16 Serg. & Rawle, 87,) as making in ordinary cases an equal and just distribution of the estate of deceased persons may then relieve the jury, by being allowred to go into operation.’</p> <p>10. The learned judge erred in charging the jury: ‘It has been argued by the plaintiffs’ counsel that as it appears by Mr. Bunker’s testimony, that Isaac Jones intended at one time to make a new will so it may be inferred from various matters in evidence that he did so after the reconveyance by Mr. Tunis, and that was destroyed or lost without the consent or agency of the maker of it, and that he therefore died under the impression that such a new will existed, and that the will of 1807 was fraudulently preserved and produced. That the jury would - decide for themselves in regard to these matters, as in regard to the other facts of the cause. That they were entitled to consideration; and that if the jury adopted the views urged by the plaintiffs’ counsel upon this subject, there was an end of the cause.”</p>

<p>IN ERROR.</p> <p>Where a lessor has covenanted to make certain repairs and improvements in the demised premises, and has failed to perform his covenant, the tenant is entitled in replevin to such defalcation or deduction from the amount of the rent due as is equal to the proportionate part of the damages for the year; but he is not entitled to a deduction of the whole amount of the damage which he has sustained: Therefore, where the goods of the tenant were distrained for the third quarter’s rent, it was held, that ho could not deduct the damages which he had sustained during the quarters preceding.</p>

<p>IN ERROR.</p> <p>1. An act authorising the incorporation of a company to make a canal, provided that books should be opened in which subscriptions should be entered in a prescribed form, by which each subscriber promised to pay a certain sum for every share of stock, in such manner and times as should be determined by the president and managers. The certificates, or evidence of stock, were declared to be transferable at the pleasure of 'the holder, in the presence of an officer of the company, who was to keep a book for that purpose, subject however to all payments due or to become due thereon; and the assignee holding such certificate, having first caused the assignment to be entered in the books of the company, was to be a member of the corporation. It was further enacted, that if, after thirty days notice of any instalment being called for, any stockholder should neglect to pay his proportion thereof, he should pay at a certain.rate per month in addition, and in a certain event the stock should be forfeited, or in default of payment by any stockholder of any instalment, the president, &c. might, at their election, cause suit to be brought to recover the same with the penalty. Under this act A. subscribed for certain shares which he transferred to B. After certain instalments had been called for, but before they were payable, B. transferred the stock to 0. in the presence of the proper officer, on the books of the company. 0. assented to the transfer previously to its being made, but never gave any personal notice of his acceptance of the transfer, nor called for a certificate. Held, that B. was not liable to pay any instalment which became due after its transfer.</p> <p>2. Whether an original subscriber would be liable after a transfer regularly made and accepted, dubitatur.</p>

<p>IN ERROR.</p> <p>One devised as follows: — “ I give and devise to my wife A. all my estate situate in the township of E., for and during her natural life, and to her issue by me begotten, his or her heirs and assigns forever ; but if no heir by me should live .to the age of twenty-one years, or marry, my will then is that my real estate shall be equally divided between my sister S.’s children and the children of my brother W., provided he should have any.” The testator died on the day after the date of his will. His wife was then enciente of a child who was born after the death of the testator, and survived her mother, but died under the age of twenty-one years, and unmarried. Meld, that the limitation over to the children of S. and W. was an executory devise, and not a contingent remainder, and consequently that the children of W., who might be born after the death of the posthumous child, would be entitled to take.</p>

<p>QUO WARRANTO.</p> <p>1. Amendments of the pleadings in quo warranto may be admitted at the discretion of the Court.</p> <p>2. On a quo warranto to show why the defendants hold and exercise a certain office, it is not sufficient, in general, to aver, that they were “ duly elected” to the office.</p> <p>3. But where a plea, in addition to this, set out the time and place of the election, and averred that it was held in pursuance of the authority granted by the charter, and of the provisions of an act of assembly, copies of which were annexed, it was held, that this was sufficient.</p> <p>■its to show why they ex-lorporated company, they [January, 1837, they were p the original charter, and ly (which provided for an annual election,) and thereby became entitled to all the rights, privileges, &c., of directors; and further, that on the 1st of May, 1837, they were again duly elected directors, agreeably to the provision of a certain other act of assembly, and to certain resolutions of the corporation; and that on the 2d of May, 1837, at a meeting of the directors it was resolved, that in case the last mentioned election should prove to have been irregular and illegal, then, in obedience to the 4th section of the charter of incorporation, the persons so elected would continue to hold and exercise their offices by virtue of their election in January preceding. On demurrer to this plea, it was held, that as either election, if valid, would constitute a sufficient defence, the plea was bad for duplicity and uncertainty.</p> <p>5. An act of assembly incorporated in the first section certain persons therein named, and all other persons thereafter becoming members of “The Philadelphia Savings Institution,” in the manner thereinafter mentioned. The object of the corporation was declared to be to receive deposits of money, and pay interest thereon. Por the security of the depositors it was made the duty of the members to raise a certain capital, which was to be divided into shares. The fourth section provided, that there should be a meeting of the members annually in the month of May, for the choice of directors from among the members. The fifth section provided, among other things, that the directors should have power “to provide for the admission of members, and furnishing proofs of such admission.” By a subsequent act of assembly it was declared, that stockholders should have a right of voting for directors, and that they should be eligible for directors. A by-law was passed by the directors elected in pursuance of this last act, providing that every person holding one share of stock should be a member of the institution, and that upon a transfer of his stock, such person should cease to be a member: Held, (1st,) That the directors had not the power to elect members, but merely to provide for their admission; and (2d) that if they had the power, the by-law was an unreasonable exercise of it, and inconsistent with the design of the charter, and therefore invalid.</p>

<p>Writ of error to tbe Court of Common Pleas, .of County, to remove tbe record of an action of ejectment b!S_ by Anthony E. Miller, against JolaMj^^^^muel Brooke,'HH John Drehr,' impleaded with Jam<! and Joseph Cresson (as to-each of ’ est inventus,) and John Hirst, and sll sion, to recover “a certain tract of la! township, in the county of Schuylkill, coS perches, and allowance, &c.; bd! by lands late of Jacob Merkle, Davies and others; on the south by the Sharp 33» land surveyed to John Keller, late John Kershner, de! the west, by lands of the plaintiff, of which the above! and on the north by lands surveyed to George Taylor, now, or late of Jacob Keim.”</p> <p>In pursuance of an act of assembly, the cause was removed from the Common Pleas, of Schuylkill county, in which it originated, to the Court of Lehigh county, and came on for trial before Banks, President, on the 15th of February, 1837.</p> <p>The plaintiff claimed under a sheriff’s sale of the land in question in the year 1818, as the property of one Levi Blew, who was alleged to have gained a title to it by improvement; and also under a warrant to him dated the 25th April, 1835.</p> <p>The defendants claimed under the same improvement right, and a warrant dated 4th of August, 1824, to John Sehall, for 120 acres, as for vacant land; a survey on this warrant of 195 acres, dated the 9th of September, 1824, and a patent for the same, dated the 7th of April, 1825.</p> <p>A great deal of evidence, both written and parol, was given on each side, and testimony offered, and admitted or rejected, in respect to which exceptions were taken. As the general features of the case, and the particular points which were the-subject of exception, are sufficiently stated in the charge of the Court' below, and the opinion of Judge Huston, in this Court, it is not deemed necessary to give an abstract of the evidence in this place.</p> <p>The counsel for the defendants requested the Court to charge the jury on the following points.</p> <p>1. “ A warrant, survey, and patent, having been issued on Levi Blew’s improvement, no second warrant could legally issue on -the same improvement and settlement right, and therefore, the warrant of the plaintiff is void. . -'"</p> <p>2. If the jury believe on the evidence, that there is more than four hundred acres of land in one body,-and whereon the improvement and settlement under which the plaintiff claims title, was made, on which he may a£ any time lawfully locate his, warrant-without interfering with any part of the land in question in this suit, the plaintiff cannot recover without a. survey made "on the ground; anda survey may be made without attaching it to all the adjoiners called for in the warrant.</p> <p>*3. Anthony F.hfingy¡*dtfg'purchased an imperfect title founded only, stands in the situaffected by all his acts affecting the 5e purchased when the vendor is out of j for the title purchased, the Levi Blew improvement, and for the iestion having issued, and the title from the Cressons, having been recorded prior to the ^plaintiff’s warrant in 1835, he is affected with notice ation at that time, that he could acquire no title to the land in question under his warrant.</p> <p>5. If the jury believe that the paper given in evidence, dated the 11th day of May, 1829, was signed and sworn to by James Blew, and accompanied the title papers from Crosby to John Schall and Thomas S. Ridgway, and from them to the Cressons, for the fifty-two acres and one hundred and twenty-nine 'perches; the plaintiff, who stands in no better situation than James Blew, cannot recover. And if the jury believe that James Blew disclaimed or concealed his title in any other manner at the time Crosby and Levi called upon him in 1829, for the purpose of ascertaining whether the heirs of John Blew claimed title to the improvement, he is now estopped from setting up any title he then may have held. The plaintiff, under the evidence, stands in his shoes and he cannot recover.</p> <p>6. If James Blew did purchase the improvement land in 1818, and neither himself nor Anthony E. Miller claiming under him, took any step to perfect the improvement right, and during all that time suffered Levi Blew and those claiming under him to be in the possession, and in 1825 or ’6 Levi had a survey made circumscribing the improvement lands, excluding the land in question, and the title to that improvement was afterwards perfected under Levi Blew’s improvement by official survey and patent from the commonwealth in 1829, and ■ still excluding the land in question — the plaintiff cannot now extend the boundaries of that improvement-right beyond the boundaries of the patent thus obtained.</p> <p>7. The Cressons are bona fide purchasers of a good and legal ''title upon the face of it, for a valuable consideration, and are not affected by any secret agreements or acts, of which they had no notice. '</p> <p>8. If the jury believe, that James Blew, under whom the plaintiff claims to hold, was nol ijjJhjj possession of the improvement for a period of seven years before the 25th January, 1830,-the time of the purchase by the Cressons under the patent from John Schall and *Thomas S. Ridgway, it is an abandonment law of his right under the improvement — more especially as it does not appear under the evid^fcjj^^he plaintiff has ever been in the possession of any pa:^^^^^^^¡a£ement on the land in question.”</p> <p>The Court charged in substance as f31</p> <p>“It appears from the evidence, that oIS large tract of land from a man by the name^ as the year 1804; that when he came to have off by survey, a part of the land was supposed to' another right, and that part was thrown out of his sul person who made the survey at this time, told old John Blew and his sons, that this part .might possibly be held by improvement, and expressed a doubt as to the validity.of the right by which it was claimed. The land thus thrown out, was north of what has been called- the mortgage line, and which has been so often pointed out to you on the plots exhibited. The sons of old John Blew did go on this strip, then thrown out of his close by their father, to hold the same by improvement; this is proved by Michael and Levi Blew, if you think them entitled to belief. That they did go on the land is testified to by others. Levi commenced an improvement on the east end, Michael in the middle, and young John Blew on the west end. The old man, it is stated by the witnesses, was moved on Levi’s improvement, in the year 1808, where he died the next year. Old John Blew had, in his lifetime, conveyed to his sons Michael and Levi, the land he had purchased of Moyer; from this time Michael and Levi claimed all the land, as well that claimed by purchase from Moyer, as the strip on the north of it claimed by improvement. It turned out that Moyer had no right to the land he sold to old John Blew ; this is a point agreed upon by both parties. In or about the year 1810, James Blew agreed with his brothers Michael and Levi to build a saw-mill on the land. He was to build the mill and pay $100, and was to have the one-third of the land, and to receive one-third of the profits of the saw-mill; James testifies that he did build the saw-mill and pay the $100, but that he did not receive the one-third of the profits. Other witnesses testify to the fact that the saw-mill was built by James. About this time, it is testified, that Michael and Levi became'indebted to a man named Price, in the sum of $500. Price wanted the money, which they were unable to pay. Price agreed to give'time to them, if they would give him security for the- debt. They prevailed on James, to go-, their security, and agreed to give him all their land if he had the debt to p^y. James testifies that he had. to pay the debt. Levi also testifies that James did pay the debt. Some short tinfB after this, Michael and Levi sold the land to one PLighes./The sale purported to be a sale of all their lands. Hughes them $400. Hughes became doubtful of the *titMfj^g^e contract, by consent of all, was rescinc]jrifl^^B^el and Levi agreed to to he had paid them. They gave John Adams as payment. Suit was afterwards brought against the money to December term, 1817, in favour of and judgment was obtained against all the defend-bj default on the 19th of February, 1818. A fi. fa. was Aon this judgment, for a debt of $410. A levy was made r the land, but it was not described in the levy; an inquisition was held on the land, in which there is a description. The land is described as adjoining Klouser’s, and also calls for the land shown by the plots exhibited to adjoin this land on the east. The land thus levied on was sold on a venditioni exponas to James Blew, for $70 50, and the sheriff executed and delivered to him a deed for the land as described in the inquisition, dated the 26th of October, 1818. Levi states, that he was living on the land at the time of this sale. Some of the witnesses testify that the improvement of Levi has always been occupied from the time he commenced it until the present time; that some one always resided on it; this is a fact, of which you will judge for yourselves from the evidence. The question now is presented, how much land, and what land did James buy at this sheriff’s sale ? Did he buy the improvement of Levi ? or did he buy the twelve hundred acres south of the mortgage line ? This is a warmly contested point; it is a point of much importance in the decision of the cause, and therefore, the Court brings it very particularly to your notice, as worthy of your patient and careful examination. Michael testifies that all the land was sold by the sheriff to James. He was party and ought to know how much of his land was levied on and sold: did he give in the levy, or know what the levy was on ? Was he present when the inquisition was held, or when the sale was made ? If he was, he ought to know; if he was not, his knowledge would not be so full, nor would it be entitled to much weight with you. You will recollect that evidence was given that Michael had left the country in the fall of 1817, and that he did not return until after the sale. If you believe that was the fact, what Michael has said on this point would not be ■ very satisfactory. It would go to show that he did not know much about it. You will then take into consideration all the testimony in regard'to the time, cause, and manner in which he left the country, and from this make your decision whether he did leave the country before the ^pvy and sale or not. If he was not in the country at the time of the levy and sale, what he has testified to as to the land sold,'flight not to have any weight. James testifies that he bought aST the land; and that after the sale, and before he got his deed ufeom the sheriff, he called on Levi, who was then residing on his ^fch^jmnent, and told him he bought all the land. Levi testifie^^HBBÉí.ever heard of James claiming his improvement until to sell to in 1829. This would contradict1 *diree^y- Which of the two do you believl credit is due to the is for to det? and not for the Court. You have seen these two witnessed heard what they have said, and where they do not agree, must decide between them, and say which of them you will belief The sheriff’s deed you will have out with you; — it calls for twelve hundred acres; the lands are not described in it by courses and distances. It calls for lands of Klouser; this land is some distance north of the mortgage line. The plaintiff contends that this deed is for the improvement as well as for the land claimed by the purchase from Moyer. The defendants contend that the deed is not for the improvement, and that it covers no land north of the mortgage line. Which of the parties is right as to the fact, you must decide from the evidence: what land was levied on and sold, whether it was the land south of the mortgage line only, or whether it embraced also the improvement north of it— in the consideration of which you will consider the description in the inquisition and deed, aided by the testimony given by each party on this point. No land but that levied on could be sold, so that the- ouly difficulty is as to what was thus levied on and sold. This fact the Court must entirely leave to you. The next point worthy of your consideration is this: — If the land was sold to James by the sheriff, has he kept up his improvement and residence on the land since his purchase as the law requires ? This is a point about which much has been said. What then are the facts in regard to it ? Levi, it appears, was living on the land at the time of the sale. He was a defendant in the proceeding. The land was sold as his property and that of Michael. Levi lived on the land until 1824; he then leased the land to Hummel for five years; Hummel went on the land, and remained there two or -three years, and then transferred his lease to one John Miller. Miller remained on the land until the lease expired— this was in 1829. Miller then took a lease for one year from Crosby, and then another year from Brooks. This would bring it up to 1831. Was Levi, after' the sale the tenant of James ? Hid he hold his possession under James’s right ? Did he thus connect his possession with the right of James ? If he did, then the testimony, if you believe it, would prove his residence up to the spring of 1829, by his tenant. You will recollect that Levi testifies that he never heard that James claimed his improvement until 1829. If you believe this, it would tend to- prove, and would prove, that he did not hold possession under James; for it is not probable that he held under James, if he had never heard of his claim to the land; he would not hold under a right if he had no knowledge.</p> <p>You will also recollect, that James testifies that he called on Levi immediately after the sheriff’s sale, and told him he had bought it; that when he heard that Levi had left the land, he took his brother Isaac, and went to Levi, and told him he had heard that he had left the land; that Levi told him it. was all right; that he had put Hummel *on for him; that he then went to Hummel and told him the land was his. You will also recollect the testimony of Barnhart, and of James taking clover seed to Levi to be sown on the land. Levi also states, that after he had left the land in 1824, that he saw James, and that James said he had heard that he had left the land, and that he was afraid he would lose it. Was Levi the tenant of James, and did he put Hummel on the land for James ? If he was the tenant of James, and put Hummel on for him, then the residence would be for his use and benefit, and under his right. If Levi was not the tenant of James, and did not put Hummel on for him, and did not hold for or under him, and had never heard of his claim or right, then James would have failed to keep up his residence according to the requirements of the law; and this would be fatal to the plaintiff’s recovering in this suit. There is another point of importance connected with this; and this is, how much and what land did Levi claim by his improvement ? Levi states, that he never claimed by improvement south of the mortgage line: that in 1820 he threw off all he had in possession south of the mortgage line, to avoid the payment of taxes ; that in 1825 he had his survey made, and did not go further east than to the Schall survey. If Levi never did claim south of the mortgage lino by his improvement, then the plaintiff could not recover any land on this improvement south of this line, in this suit. Michael testifies, that when they found out that Moyer’s right was not good, that Levi and he then went on to hold the eight hundred acres by improvement, Levi claiming the east four hundred acres. He did not state when it was, but you will say, whether it was not before the levy and sale, for it is agreed on all sides, that Michael did not remain on the land after the sale. If the Moyer right was not good, and this land was vacant, they might go on to hold it by improvement. But did they do this ? This is a fact for you; you will decide it. Which of those two witnesses do you believe on this point ? If Levi was the tenant of James, and as such holding possession under him, he could not throw off any of the land that he was then in possession of as his tenant, without the knowledge or consent or acquiescence of James, as a tenant cannot thus dispose of the rights of his landlord. If he was not the tenant of James, then he might limit his possession and claim to any quantity and part of the land he thought proper. Then you will determine the fact of residence and possession — whose was the possession — what kind of possession was it — how was it continued from time to time, and for whose, and on what land ? — are all facts which the Court leaves you to decide. To constitute a good improvement in point of law, the settlement must be actual —there must be an actual personal residence on the land, and this actual personal residence must be kept up from time to time with a manifest intention to make it a place of abode. If Levi was not the tenant of James, and James was not in possession of the land from 1818 until 1831, either himself or by his tenant, then *his right would in laiY be abandoned and lost, and the plaintiff could in that case not recover in this action.</p> <p>What the possession was, and under whom, you will decide. Another question is, did James in 1829 disclaim all right to this land, or to Levi’s improvement? This is also an important question, and requires your careful examination. Levi states, that upon his agreement to sell to Crosby, and before he had made title, he, with Crosby, called on James and told him of the agreement to sell; that James then said that the improvement belonged to Levi; that the rest had all left it; that Levi had stuck to it; that it belonged to him, and that the rest of the heirs of John Blew had no claim to it. James testifies, that when Levi and Crosby called on him in 1829, he told them it did not belong either to Levi, or the heirs of John Blew; that it had belonged to Levi and Michael, but had been sold from them by the sheriff, and he had bought it; and that it was his. Here again you have a direct contradiction. Which of the two is worthy of belief? If you believe Levi, it would amount to a full disclaimer, and would bar the right of James, and all claiming the land from him by subsequent grant, and the plaintiff could not recover. It is not for the Court to say which of the two you will or ought to believe: that is your duty, and as such is left to you. You also have in evidence on this point, the paper dated the 11th of May, 1829, purporting to be signed by James, his mother, and Andrew. Is the name of James, which is placed to this paper, his own handwriting ? It is not pretended that it was signed by any other by his authority or direction: it is insisted upon, that it is his own handwriting. Esquire Reber testifies that the body of the paper was written by him; that he signed his own name to it, but that he does not recollect that James was before him. He states that the name of James Blew is in the handwriting of James Blew. James testifies that he has no recollection of signing it; that it looks like his handwriting; that it is a little smoother and lighter than his; that he could not say it was not his, but for the fact, that at the time of its date he was resisting the claim of Crosby, and directing his tenant to keep him off the land, which he did. James also testifies, that when he was examined on the former trial, he did not say that he,had made an affidavit before Esquire Reber: that what he did state was, that they wanted him to do it, but that he had not done it. In this he is contradicted by both Mr. Loeser and Mr. Bannan; they testify, that on the former trial James did say that he had made an affidavit before Esquire Reber. They have produced their notes of his testimony as then taken,-and it is there written down as they have now sworn. This is certainly strong testimony. James now insists, that they misunderstood him. If James did state as Mr. Loeser and Mr. Bannan have sworn, it would contradict him so directly, and that too on a point so material, that but little reliance could be placed on his But still the did he so is left for to he was misunderstood, and you are satisfied of that fact, it ought not to detract from his credit. We have his testimony: will the testimony in regard to this part of the case be believed ? It is for you to say whether you believe James Blew, or whether you believe the other witnesses. In weighing James Blew’s testimony, you will take into consideration the contradiction as proved by Ridgway, Loeser and Bannan, as to what he means took place in their presence. ' This is important. You will recollect — the Court need not repeat it — he swears positively that it did take place; they swear as positively that no such conversation did ever take place. Andrew states that on one of the occasions he was present, and states the same that James does. Then do you believe James and Andrew, or do you believe the other witnesses ? One or the other of the two sets must be grossly mistaken, to say the least of it. You have seen and heard the witnesses, and you will be able to say which of them are witnesses of truth. You will, in weighing the testimony of each witness, take into consideration the contradictions as proved against him. This will apply to each witness that is contradicted. If a witness is proved to have been false in a material point, and you are satisfied that the falsehood was wilful, then no reliance should be placed on his testimony, when it stands alone and unsupported. No fact should be taken as proved by the testimony of such a witness, unless it is corroborated or supported by other proof, either direct or circumstantial. You will then decide the facts. In doing this, you must determine which of the witnesses is entitled to credit. There is much contradiction — you will reconcile it if you can. If' you cannot reconcile it, then you must determine which is worthy of belief, and which not. This is so peculiarly your duty, that the Court forbears giving any opinion, or even intimation in regard to it. If the land in dispute was vacant at the time Schall took out his warrant, then the plaintiff cannot recover. You must be satisfied from the evidence, that the land in dispute was held by the improvement of Levi; that it was levied on and sold by the sheriff to James; and that he kept up the improvement by residence on the land; otherwise the plaintiff cannot recover; for if you find any one of these points against the plaintiff, it would be fatal to his rights, and he could not recover.</p> <p>Before answering the defendant’s points, we will draw your attention to the warrants and patents in relation to which we are requested to charge you.</p> <p>The defendants have given in evidence,</p> <p>1st. A warrant to John Schall for one hundred and twenty acres, dated the 4th of August, 1824, as for vacant land. A survey on this warrant of 195 acres, dated the 9th of September, 1824.</p> <p>Patent for the same, dated 7th of April, 1825. Deed from Schall *and wife to the Cressons for the same land, dated the 1st of December, 1828, for $1656.</p> <p>2nd. The application of Crosby on Levi Blew’s improvement, dated the 4th of March, 1829. Warrant for the same dated the -7th of March, 1829, for one hundred and eighty acres. Survey dated the 14th of May, 1829, of fifty-two acres and one hundred and twenty-nine perches.</p> <p>Deed of' Levi Blew and wife to Neal Crosby, dated the 26th of March, 1829, for one hundred and eighty acres. Deed, Crosby to Schall and Bidgway, dated the 12th of May, 1829.</p> <p>Patent to- Schall and Bidgway, 15th of June, 1829.</p> <p>Deed, Schall and Bidgway to the Cressons, for three-fourths of the land, dated the 26th of June, 1830, for $1680.</p> <p>Deed from Schall and Bidgway to Aaron Eberly, for one-fourth of the land, dated the 25th of January, 1830, for $560.</p> <p>3d. The plaintiff’s warrant is dated April 25th, 1835, and is for four hundred acres.</p> <p>Answer to the defendants. 1st point: — If Levi Blew, at the time he had his southern line made in 1820, and his survey in 1825, and at the time of his sale to Crosby, was the owner of the improvement made by him, then no second warrant could legally be granted for the land granted by the warrant given in evidence by the defendants, nor could any other warrant be legally granted on the improvement of Levi Blew; and in that case the ' plaintiff’s warrant would be void. But if the- improvement of Levi Blew was. on and for four hundred acres, and the land granted to the plaintiff by his warrant, and that improvement and the land claimed thereby was sold to James Blew by the sheriff; and James Blew kept up the settlement and residence on the land; and if Levi was his tenant after th© sheriff’s sale, up to the time he left the land, and put Hummel on ; and if he put Hummel on the land for James, the warrant granted on the application of Crosby for Levi’s improvement, andi survey thereon of fifty-two acres and one hundred and twenty-nine perches, would not prevent the plaintiff from taking out a warrant on this improvement for the four hundred acres claimed by the improvement ; and in that case his warrant would not be void.</p> <p>If the plaintiff could not take out his warrant on his improvement, how could he get his title for the land not granted by the Crosby warrant ? That warrant covered the land on which Levi resided — when this was cut off, no residence had been made on the residue. If he was obliged to take up the land as vacant, that would oblige him to abandon his improvement, and his right would then take precedence but from the time he would make this application, which would be unjust, as he might thus lose his right to the land. If the plaintiff has the right to the land, the warrant and patent, on the application of Crosby, would be for his use, but this trust would not *be beyond the fifty-two acres one hundred and twenty-nine perches surveyed and patented; so that to recover the rest of the -land he might take out a warrant on the improvement for the whole of the four hundred acres; and in this case the warrant of the plaintiff would not be void.</p> <p>Answer to the second point. On what land the improvement by virtue of which the plaintiff claims title was made, is a fact for the jury to determine. The plaintiff might locate his warrant by survey on vacant land, without attaching it to all the ad-joiners called for on it. But if the jury believes that Levi’s improvement was bounded on the south, east, and north by official surveys well marked on the ground, and that those lines were claimed to by him before and up to the sheriff’s sale to James as his boundary, and also by James after his purchase; and that the plaintiff’s warrant calls for the same land, on which the improvement was made, and this suit is brought to recover land which was claimed by the improvement and on which it was made, then the plaintiff can recover without a survey made on the ground, although there might be other vacant land there on which he might locate his warrant, without interfering with any part of the land in question in this suit.</p> <p>We answer to the third point, as requested therein.</p> <p>Answer to the fourth point. The patent for the Levi Blew improvement, and for the land now in question having issued, and the titles from the patentees to the Cressons having been recorded prior to the date of the plaintiff’s warrant in 1835, would be notice to him of their existence. But whether the plaintiff acquired title to the land in question under his warrant, depends upon whether an improvement was made on the land in question prior to the defendant’s warrant for it, and whether the plaintiff has shown himself to be the owner of that improvement, and whether on his part and those under whom he claims, such actual residence on the land, as is required by law, was made and continued from time to time, as we have stated to you in another part of our dharge.</p> <p>Answer to the fifth point. The Court charge the jury as requested in this point.</p> <p>Answer to the sixth point. If James Blew did purchase the improvement land in 1818, and neither himself nor Anthony F. Miller took any steps to perfect the improvement right, and during all that time suffered Levi Blew and those claiming under him to be in possession, and in 1825 or 1826 Levi had a survey made circumscribing the improvement lands, excluding the land in question, and the title to that improvement was afterwards perfected under Levi’s improvement, by official survey and patent from the commonwealth in 1829, still excluding the land in question, the plaintiff could not now extend the boundaries of that improvement beyond the boundaries of the patent so obtained. But the question recurs, did James take to the improvement if he did buy it ? Was Levi his * tenant ? Did Levi Hummel on the land as the tenant of James ? for if Levi was the tenant of James, and in possession of the land under him, he could not sell the land nor any part of it, nor could he throw any part of it off so as to affect the right of James, unless James did assent to, or acquiesce in such sale, or throwing out part of the land, or concealed or disclaimed his right to it. How the facts are in regard to these matters is for you to decide from the evidence.</p> <p>Answer to the seventh point. The Cressons claim under an original title; by that title they had notice that the right to the land was as vacant land. They were bound to know whether the land was vacant or improved at the time their warrant was obtained. If James Blew had a right to the land under the sheriff’s sale, by virtue of the improvement of Levi Blew, that right could not be divested by the officers of the land office granting a warrant and patent to Sehall, nor would it being sold to the Cressons for a valuable consideration, vary the case; this would not defeat the improvement right of James, if it was bona fide made and he had not been guilty of negligence, whereby the Cressons, as innocent purchasers for a valuable consideration, had been injured: beyond this the Cressons cannot be affected by any secret agreement or acts of which they had no notice. The Cressons would not be affected by the verbal agreement between James and his brothers about this land, from the proof which has been given.</p> <p>Answer to the eighth point. The Court charge as requested in this point.”</p> <p>The defendant’s counsel excepted to this charge; and the jury having found for the plaintiff, the record was removed to this Court, and the following errors assigned.</p> <p>“ 1. The Court erred in admitting the evidence as set forth in the first bill of exceptions.</p> <p>2. The Court erred in admitting the evidence as stated in the second and third bills of exceptions.</p> <p>8. The Court erred in rejecting the evidence as set forth in the fourth and fifth bills of exceptions.</p> <p>4. The Court erred in rejecting the evidence as set forth in the sixth bill of exceptions.</p> <p>5. The Court erred in their answer to the first point submitted by the counsel of the defendant below.</p> <p>6. The Court erred in their answer to the second point sub-*by the counsel of the defendants below, and in submitting to the jury facts of which there was no evidence.</p> <p>7. The Court erred in their answer to the fourth point submitted by the counsel of the defendants below.</p> <p>8. The Court erred in their answer to the sixth point submitted by the counsel for the defendants beloAv.</p> <p>9. The Court erred in their answer to the seventh point submitted by the counsel for the defendants belowi</p> <p>10. The answer of the Court to the eighth point submitted by the counsel of the defendants below, is at variance with the body of the charge.</p> <p>11. The Court erred in charging the jury, that the improvement upon the land could be kept up by Levi Blew and those who Avere in possession under him, for the benefit of James Blew; and that James Blew and the present plaintiff are not affected by the acts of Levi Blew, while in possession, in circumscribing the claim under the improvement right.”</p>

<p>IN ERROR.</p> <p>In an action for an assault and battery, the defendant gave in evidence in mitigation of damages, the record of his conviction in the Mayor’s Court, on an indictment for the same assault, and a receipt of the sheriff for the fine and costs of the prosecution: Held, that there was no error in the judge charging “that the record of the defendant’s conviction in .the Mayor’s Court having been given in evidence by the defendant himself, it was no longer matter of doubt that an assault had been committed ; and the plaintiff would be entitled to some damages.”</p>

<p>IN ERROR.</p> <p>In debt on bond by A. assignee of B., tbe obligee, against 0., tbe obligor, it appeared, that at the time of giving the bond, a settlement was made, and releases executed, of all claimswhich A. and B. had against 0., and which 0, had against A.; and A. having said, “ Now you will go and buy another judgment against me,” 0. replied, “I will not buy any judgment against you. I will pay the bond when it becomes due Held, that after this agreement, 0. could not set off a judgment against B. which was assigned to him after the execution of the bond.</p>

John Garrett, brought an action on the case, against John W. Stitt, and George Wall, trading under the firm of John W. Stitt & Co., and filed a declaration in assumpsit upon a bill .of exchange, dated the 2d of January 1837, drawn by E. E. Haskell upon J. W. Stitt & Co., and accepted by them,.for $750, in favour of E. E. Haskell, and endorsed by him to the plaintiff.

Hans Hamilton brought an action against David Milne and James Milne, trading under the firm of David Milne, upon a promissory note drawn by the defendants, dated the 13'th of February, 1837, at four months, for $173 40, in favour of David Lawson, and endorsed by him to the plaintiff.

<p>IN EQUITY.</p> <p>1. Where a general power of appointment is given and executed, the intention of the party executing the power is to be sought only in the instrument by which the appointment is made; and the construction of that instrument cannot be affected by any other clauses in the instrument by which the power was created.</p> <p>2. A. devised certain real estate to trustees in fee, in trust for the separate use of her niece H. P., for life, with remainder to her child or children surviving her; but if H. P. should die without leaving a child or children, &c., surviving her, thqn the testator devised the estate to such person and persons, and for such estate, &c., and in such manner, &c., as she, the said II. P., by her last will, &c., should nominate and appoint; and for want of such appointment, the testator devised the estate to E. K. P. in fee. II. P. married after the death of the testator, but had no issue, and made a will, by which she devised to her executors the real estate which, by the will of A. was made subject to her appointment, to hold the same, in trust, to permit her brother, E. K. P. to receive the rents, &c., during life, and at and from his decease to convey the same to the eMldren of the said E. K. P., their -heirs and assigns forever An equal proportions.” At the date of the will, and at the death of H. P., E. K. P. had two children, who died in' 1835, unmarried and without issue, leaving their father and mother surviving: Held, that the limitation of the remainder was not confined to the children of E. K. P. living at the date of the will and the death of H. P., but extended to all who might come in esse to the time of the death of E. It. P., and consequently, that E. K. P. was not entitled to call for a conveyance of the legal estate from the trustees.</p>

<p>IN ERROR,.</p> <p>1. The bond of a.married woman, though she join in it with her husband, is absolutely void; and a judgment entered on such bond by virtue of a warrant of attorney annexed, executed by the wife together with her husband, is also void as respects the wife and her estate; and a judgment upon a scire facias issued upon such judgment, is also void as respects the wife and her estate. Per Kennedy, J.</p> <p>2. A married woman being sfeisod in fee of certain real estate, her husband by deed of bargain and sale conveyed all his right, title and interest in his wife’s real and personal estate to a trustee, his heirs, executors, administrators and assigns, in trust, to permit the wife to manage, let and demise the real estate, and receive the personal estate for her separate use, with power to her to bargain and sell, and by any deed, conveyance, or assurance, in the law executed under her hand and seal, in the presence of two or more credible witnesses, to grant and convey all or any part of the premises, unto any person or persons, and for such uses, &e. as she should think proper, and receive and apply the purchase-money for her sole and separate use, &c.; with power also to appoint by will. Afterwards, the husband and wife executed a bond and warrant of attorney, in the presence of two witnesses, of whom the trustee was one. Judgment was entered on the bond, by virtue of the warrant of attorney, and a scire facias quare executionem non was issued and judgment obtained upon it. Afterwards, the land of the wife was sold by virtue of proceedings upon a mortgage given by the husband and wife, and the surplus proceeds, after satisfying the mortgage, were brought into Court. Held, that the judgment on the scire facias was not a lien on the land; and that the plaintiff was not entitled to be paid out of the fund in Court.</p>

<p>IN ERROR.</p> <p>1. Although the acceptance of a deed in pursuance of articles of agreement is prima facie and generally an extinguishment of the agreement, yet if the vendor fraudulently induce the vendee to accept a deed by making him believe that the whole of the land contracted for is included in the deed, the agreement is not merged, and the vendee may maintain an action upon it.</p> <p>2. And such action may be maintained, although the vendee has paid the full amount of the consideration money to the vendor.</p> <p>8. The vendee in such ease may maintain an action of assumpsit for the non-performance of the contract, and is not obliged to bring an action for deceit: nor would an action of covenant be proper.</p> <p>4. In an action on an agreement to convey land, where the plaintiff had paid the consideration money, and the defendant had fraudulently omitted in the deed of conveyance part of the land contracted for, it was held not to be error, that the judge told the jury, that though, as a general rule, the value of the property was the measure of damages, yet they were not imperatively restricted to that standard, but might include in their verdict the necessary expenses of the plaintiff, if they deemed it prudent and reasonable to do so.</p>

<p>Where a building was commenced in June 1835, and a person who furnished materials without filing any claim, commenced a personal action against the contractor, after the expiration of six months from the time of furnishing the materials, and without making the owner a party,_ or giving him notice of the suit, and obtained judgment and sold the building and lot, by virtue of an execution upon the judgment, as the property of the contractor, within two years from the commencement of the building, it was held, that the purchaser at the sheriff’s sale acquired no title.</p>

, to the use of William T. Smith, against Robert C. Martin. It appeared from the record of this suit, that the following declaration was filed by- the plaintiff in the first instance. “ Robert C. Martin, late of the city aforesaid, merchant, was attached to answer John Stillé, Jr., to the use of William T. Smith, of a plea of trespass in the case, &c. And thereupon the said John, by C. Ingersoll, his attorney, complains, that whereas heretofore, to wit, on the first day of…

<p>APPEAL.</p> <p>1. Where an assignment for the benefit of creditors provided for the payment, in the first instance, of an alleged debt, to the son of one of the assignees, who, in point of fact, was not a creditor, the preference being fraudulently intended for the benefit of the assignor himself, it was held, that the whole assignment was invalidated by this circumstance, and that the assignee was not entitled to receive the proceeds of real estate of the assignor, for the benefit of the remaining creditors in the assignment, as against judgment creditors of the assignor.</p> <p>2. Where the proceeds of property sold under an execution, are brought Into Court for distribution, and claimed by an assignee under a voluntary assignment for the benefit of creditors, and by judgment creditors of the.assignor, it is not necessary to make the creditors named in the assignment parties to the proceedings.</p> <p>3. Where an assignment for the.benefit of creditors contained a provision for the payment in the first instance, of an alleged debt to the son of one of the assignors, it was held, that evidence of declarations of assignors, made after the assignment, tending to show that the person preferred was not in fact a creditor, and that the arrangement was intended for the benefit of the assignor and his family, was admissible, in proceedings between the assignee and judgment creditors of the assignor.</p>

<p>A party is not entitled to an allowance in his bill of costs for the expense of office copies of deeds and other documents produced on the trial in support of his title.</p>

<p>This was a suit in equity, instituted by Mary Cutbbert against Hartman Kuhn, Dr. Bobert Hare, John Piare Powel, Samuel Powel, Samuel Powel Griffitts, and Charles Willing.</p> <p>The bill set forth, that by indenture made on the fifteenth day of July, A. D. 1794, between Elizabeth Powell, of the city of Philadelphia, widow, of the one part, and Thomas Cuthbert, of the other part, reciting as is therein recited, the said Elizabeth Powel did grant and convey unto the said Thomas Cuthbert, his heirs and assigns, a certain' lot or parcel of ground, situate on the east side of Penn street, in the said city, containing in breadth on the said street sixty-five feet; bounded northward by an alley ton feet wide, eastward by the river Delaware, southward by ground late of William Allen, Esquire, and westward by the said Penn street, together with the appurtenances; yielding and paying therefor and thereout, unto the said Elizabeth Powell, her heirs and assigns, the yearly rent or sum of one hundred and six Spanish silver dollars, and two-thirds of a dollar, in two equal portions, on the twenty-fifth day of March and twenty-fifth day of September in every year forever thereafter.</p> <p>That by sundry mesne conveyances and assurances in the law, all that part of the said lot of ground, so conveyed by Elizabeth Powel to Thomas Cuthbert, situate between the east side of Little Water street or New street, in the said city, and the river Delaware, and containing in breadth sixty-five feet, together with the appurtenances, had become vested in the complainant, in fee, subject to the said ground rent of one hundred and six dollars and two-thirds *of a dollar, which, by agreement among the heirs of the said Thomas Cuthbert, on partition being made among them, Avas to be paid out of that part of the said large lot of ground Avhich is noAV held by the complainant.</p> <p>That the said Elizabeth Powel, after the execution of the said conveyance, made her last will and testament in writing, bearing date the twenty-second day of May,. A. d. 1819, and proved on the tAventy-fifth day of January, A. d. 1830, wherein she devised certain messuages and lots of ground, and also all her ground-rent estate, (so called,) to the Right Rev. William White, Protestant Episcopal Bishop, Edward Burd, Esquire, Thomas Mayne Willing, Esquire, and Edward Shipp en Burd, Esquire, and their heirs, upon the following trusts, and subject to the powers, provisions, conditions and limitations therein mentioned; viz. “to the use of her nephew, John Hare Powel, for and during his natural life, without impeachment of waste, and from and after the end, expiration, or sooner determination of that estate by forfeiture, or otherwise, in his lifetime, then to the use of the said trustees and their heirs, during the lifetime of the said John Hare Powel, in trust, to support and preserve the contingent uses and estate thereinafter given or limited, from being defeated or destroyed; and for that purpose to make entries and bring actions, as occasion shall be or require; but nevertheless to permit and suffer the said John Hare Powel, during his lifetime, to receive and take the rents, issues and profits thereof, to and for his OAvn use and benefit; and from and immediately after the decease of the said John Hare Powel, to the use of his first son, my great nephew, Samuel Powel, for and during his natural life, without impeachment of waste: and from and after the end, expiration, or sooner determination of that estate, by forfeiture or otherwise, in the lifetime of the said Samuel Powel, then to the use of the said trustees and their heirs, during the life of the said Samuel Powel, in trust, to support and preserve the contingent uses and estate thereinafter given or limited, from being defeated or destroyed; and for that purpose, to make entries and bring actions, as occasion shall be or require, but nevertheless to permit and suffer the said Samuel Powel, during his life, to receive and take the rents, issues and profits thereof, to and for his own use and benefit; and from and immediately after the decease of the said Samuel Powel, to the use of his first son, lawfully to be begotten, and the heirs of the body of such son, lawfully issuing ; and for default of such issue, to the use of the second, third, fourth and fifth son and sons, and all and every other the son and sons of the said Samuel Powel, lawfully to be begotten, severally, successively, and in remainder, one after another, as they shall severally be in seniority of age and priority of birth, and of the several and respective heirs of the body and bodies of all and every such son and sons lawfully issuing; the elder of such sons, and the heirs of *his bqdy, lawfully issuing, being always preferred, and to take before the younger of such sons their bodies issuing: and for default of such issue, then to the use of the second, third, fourth and fifth son and sons, and all and every other the son and sons of my nephew, the said John Hare Powel, lawfully to be begotten, severally, successively, and in remainder, one after another, as they shall severally be in seniority of age and priority of birth, and of the several and respective heirs of the body and bodies of all and every such son and sons lawfully issuing; the elder of such sons, and the heirs of his body, lawfully issuing, being always preferred, and to take before the youngest of such sons, and the heirs of his and their bodies issuing; and for default of such issue, then to the use of Samuel Powel Griffitts, Junior, (son of Dr. Samuel Powel Griffitts,) and his heirs forever: Provided he, the said Samuel Powel Griffitts shall be living at the time of such default of issue as aforesaid; but if the said Samuel Powel Griffitts, Junior, shall not be living at the time of the default of issue last above-mentioned, then, and in such case, to the use of my great nephew, Charles Willing, (son of my aforesaid nephew, Thomas Mayne Willing,) and his heirs forever; being intended by me as tribute of respect to the memory of my father, whose name he bears.”</p> <p>That the said William White, Edward Burd, Thomas Mayne Willing and Edward Shippen Burd, or such of them as survived the testator, and accepted the trust, afterward resigned their said office of trustees, or have been discharged therefrom by the District Court for the City and County of Philadelphia, and that Hartman Kuhn and Dr. Robert Hare have been appointed by the same tribunal to succeed them in'the said office of trustees.</p> <p>That in pursuance of certain proceedings in the Court of Quarter Sessions for the County of Philadelphia, an order has been made by the said Court, for the opening of Lombard street, from its present termination at Front street, to the river Delaware ; by means of which, a certain portion of the said lot, belonging to the complainant, comprising about thirty-six feet in breadth, by about ninety-one feet in length or depth, has been taken for the public use; and damages have been awarded by the said Court to the complainant, to the amount of eight thousand dollars, of which a portion is payable on account of the said ground-rent.</p> <p>That the complainant is willing and desirous to pay off and extinguish such proportion of the principal amount of the said ground-rent as is equal to the part thereof, issuing out of so much of the said lot of ground as has been taken as aforesaid for the public use, or to pay off and extinguish the whole of the principal amount of the said ground-rent; but she is advised, that in consequence of the provisions and limitations in the will of the said Elizabeth Powel contained, there is no authority in any person at present to receive the same, or to give a sufficient release, discharge, or extinguishment *of the same, or any part thereof; and that the due apportionment of the said ground-rent cannot be obtained by the ordinary process of the courts of law.</p> <p>The bill then prayed an injunction to restrain the defendants from proceeding to recover the whole amount of the ground-rent, and any undue proportion thereof, and for further relief.</p> <p>The answer of the defendants, Hartman Kuhn, Robert Hare, John Hare Powel, Samuel Powel, a minor under twenty-one years of age, by his guardian John Hare Powel, Samuel Powel Griffitts, and Charles Willing, admitted the conveyance of the lot as stated in the bill; that Mrs. Powel made her will as there set forth; that the trustees resigned and were discharged; and that the defendants Kuhn and Piare were appointed in their place; and that Lombard Street had been opened through the lot and damages assessed for the same.</p> <p>The answer then proceeded to aver that after the assessment of damages in the Quarter Sessions, an auditor was appointed by that Court, to make distribution of the said damages, &c., between the complainant, and the estate of the said Elizabeth Powel, devised in trust, as stated in the bill; and that the said auditor made his report thereon to the said Court, on the 21th day of February, A. D. 1836, and therein reported, that the value of the • ground-rent payable by the said complainant to the said John Hare Powel, was $1822 22, and that that sum ought to be paid to the trustee of the said estate, out of the said sum of $8000 ; which report was confirmed absolutely. The answer further stated that the complainant did, by her son and agent, Mr. Allen Cuthbert, make known to the said John Hare Powel, her request and desire that the said ground-rent should be entirely extinguished and released; and'that the said John Hare Powel, should agree and consent that the said sum of $1822 22 cents should be received by the trustees, in lieu, and as a full satisfaction thereof, and be by them held, appropriated and invested as part of the said trust estate: and in consideration thereof, and of other circumstances, the said John Hare Powel did present his petition to the District Court for the City and County of Philadelphia, on the 16th day of April, A. D. 1836, praying that the said Court would order and direct that the saicl Hartman Kuhn and Robert Hare, should receive and take the said sum of $1822 22 cents; which sum was included in and formed part of a larger sum of $6097 22 cents, the assessment and apportionment of other damages, awarded to the said trustees of the estate devised as aforesaid; and should hold the same upon the uses, trusts and dispositions, contained in the will of the said Elizabeth Powel, of and concerning the real estate, devised and bequeathed thereby, in trust, for the use of John Hare Powel, as set forth in the said bill, according to the force and effect of an act of the 2d of A. D. entitled, *“ An act relative to part of the estate of Elizabeth Powel,” and should invest the same according to the provisions thereof, to be approved by the Court. And the said Court made the order as prayed, and in the foregoing words. And afterwards, viz., on the 26th day of October, A. d. 1836, the said Hartman Kuhn and Robert Hare, having this authority to receive the said sum of money, the said Court of Quarter Sessions made an order, that the treasurer of the County of Philadelphia, should pay to them as trustees of the said estate, the said sum of $1822 22.</p> <p>That the County of Philadelphia then being, and having for some time been unable to pay and satisfy the damages awarded as aforesaid, the county board did sometime in the year 1836, authorise and direct the commissioners of the said county, to borrow a large sum of money, on the credit of the county, at five per cent, per annum, and to issue therefore certificates of debt, not redeemable before the year . ; and part thereof was directed to be appropriated by the said commissioners to payment of damages for streets opened, &c., and among them Lombard street as aforesaid; and the said trustees, considering it to be most advisable for the estate, did subscribe thereto the whole amount of damages awarded to them, to wit, the sum of $6097, which included the said sum of $1822 22, and did agree with the complainant, who was represented by her said son and agent, Allen Outhbert, that in consideration of their subscribing the whole sum of $1822 22 and receiving it in extinguishment of the said ground-rent, the said complainant would convey to them as trustees, for the uses and purposes of the trust, one or two sufficient, good, and irredeemable ground-rents of the yearly value of $106 61 and receive therefore the said subscription to the said county stock for $1822 22; and that the said complainant failed to perform her said agreement, having been advised, as the defendants are informed by the bill, that the trustees aforesaid cannot extinguish or release the said ground-rent.</p> <p>The answer further set forth, that the defendants were advised, and humbly insisted, that neither the said Hartman Kuhn, and Robert Hare, trustees as aforesaid, nor the said John Hare Powel, have any right, title, or authority to extinguish or release the whole or any part of the said ground-rent, payable by the said complainant, and that the complainant is not entitled to claim an apportionment of the said rent, but that the whole is chargeable on the remainder of the said lot or parcel of ground; and that the said trustees . ought to be reinstated in, and have full possession of the whole of the said ground-rent, and that the complainant should take and receive the said sum of $1822 22 subscribed in county stock as aforesaid in the full value of the said ground-rent.</p> <p>*The case came on for hearing on a former day on the bill and answer; when an objection having been taken that the tenants of that part of the lot which lies westward of Little Water street, ought to have been made parties, the Court gave leave to amend by adding the necessary parties.</p> <p>The case accordingly stood over for the purpose; and on a subsequent day on the petition of the persons holding that part of the lot which lies between Front and Little Water street, they were admitted as parties, and the bill was amended accordingly.</p> <p>The case came on again to be heard on the amended bill and answer.</p>

<p>IN ERROR.</p> <p>1. If husband .and wife live together, any business in which she may be engaged is presumed, unless the contrary be shown, to be conducted by her with his knowledge, and as his agent. If he know that she is conducting business in his, or her own name, and do not prohibit or prevent her, or make known his dissent, or disapprobation, he is liable on such contracts as she may make, and is liable, civilly, for such frauds or other torts as she may commit in the course of such business. If the wife buy goods without her husband’s knowledge, and he afterwards learns that she has purchased them, if he permit lier to use them, or to retain possession of them, he is liable for the price. In such a case the possession of the wife is the possession of the husband. If, when applied to for payment, he disavow all participation in her business, and deny that the purchase was made on his behalf, the seller may elect to treat such disclaimer as a disaffirmance and recission of the contract, and may retake the goods, or, if they be withheld from him, may bring trover or replevin for them. If either the husband or the wife procure the delivery of goods under the fictitious pretext of a purchase upon credit, without intending that the seller should be paid for them, this is such a fraud as would vitiate the sale, and prevent the property from being changed by the pretended purchase. In order to prove such a fraud, it is not absolutely necessary to prove a false pretence, or other direct artifice, in respect to the individual purchase sought to be avoided. It may be shown that the transaction immediately in issue was one of a scries of acts, which, *taken together, evince the existence of a preconceived design to obtain possession, without paying for them, of a quantity of goods of which those in question are a part. Thus it may be shown, that the quantity of goods purchased, on credit, from many persons was inordinately large, in proportion to the regular purposes of the apparent business of the party obtaining them ; that they were not kept or dealt with in a place or in a manner to indicate'that they had been fairly acquired, for the purposes of regular business ; that forced sales were made, at an undervalue, of goods bought shortly before on credit; that the subsequent conversations and deportment of the party.were indicative of a design to evade payment, and to make unjust appropriations of the property. The effect of such evidence is for the jury. It seems, however, that this doctrine ought not to be extended so far as to enable the original vendor, who has been imposed upon, to follow goods into the hands of purchasers who have become interested in them bona fide, in the regular course of business.</p> <p>2. If the vendor, after full knowledge of all material facts, has affirmed the sale, he cannot afterwards elect to disaffirm, and treat it as a nullity. But the vendor is not estopped from disaffirming the contract on the ground of fraud, by any acts of affirmance taking place before discovering the fraud, or its full extent and character. Nor is it an estoppel to have brought actions on other contracts of a similar character. But the delay to disaffirm the contract, or acts inconsistent with its disaffirmance, are circumstances proper for the consideration of a jury, who will decide whether the vendor has affirmed it with proper knowledge of the facts relied on for its disaffirmance.</p> <p>3. In replevin the plea of non-cepit admits the property to be in the plaintiff, and puts in issue only the taking and detention. Although the taking were rightful, or excusable, the plaintiff will recover if the detention by the defendant were wrongful; and, generally speaking, the property being admitted by the plea to be in the plaintiff, any detention will be wrongful. As to goods delivered to the plaintiff in replevin, and remaining with him, he can only recover damages for the caption and detention. But as to goods eloigned he may, in addition thereto, recover their value in damages,</p> <p>'4. If different persons, either before or after suits brought, agree to divide among themselves the amounts, if any, that may be recovered, each of them is liable to the defendant for costs. They cannot, therefore, be made witnesses for one another, by exchanging mutual releases. The costs of suit must be paid before any of them can be examined.</p> <p>5. If a party before he has opened his case, endeavor to introduce it to the jury by cross examining the witnesses of the opposite party, the judge before whom the cause is tried, may arrest such cross-examination, and prevent the questions from being put in that stage of the cause.</p> <p>6. A witness produced to show, that certain goods which he sold to the defendant on credit, in New York, were sent by defendant to auction in Philadelphia, and sold for cash, cannot be asked, for the purpose of identifying the goods sold at auction with the goods sold by the witness to the defendant, whether tickets, resembling those which were on the . goods when sold to the defendant, were not sent to the witness in a letter written to him by a correspondent in .Philadelphia. It must be shown by the writer of the letter, or by some other competent means, that those tickets had been attached to the goods sold at auction.</p> <p>7. Against a party demurring to evidence, every fact is taken pro confesso which the jury might, with the least degree of propriety, have inferred from the evidence.</p>

<p>in error.</p> <p>In an action against executors to recover a debt due by their testator, it appeared, that the testator had a large estate at the time of his death, and that previously to his death he had conveyed portions of his real estate to his three sons, each of whom gave him a bond for part of the consideration-money, payable in one year after his death, and at the time of the execution of the bonds, it was agreed that the amount should not be paid, but that they should be given up to the obligors respectively, at or after the testator’s death; an endorsement to which effect was made . by the testator on the bonds: Held, that under these circumstances, the bonds were not tó be considered as assets for which the executors were ■liable; and that if the conveyance to the sons was invalid as against creditors, their remedy was by proceeding against the land.</p>

<p>IN ERROR.</p> <p>1. In an action against the surety in a bond given in the Orphans’ Court, to secure the distributive share of the plaintiff in the property of an intestate, where the defence was, that the plaintiff had executed a release to the principal obligor, of all demands arising from the said bond, it was hdd, that evidence was admissible of what took place before and' at the execution of the release, to prove that a fraud had been practiced upon the plaintiff in respect to the execution of the release, although it was not alleged that the defendant was present or privy to the fraud.</p> <p>2. Although a release may have been obtained by a fraud practised upon the obligee by the principal obligor in a bond, jet if the surety were not a party to the fraud, and the obligee suffer several years to elapse without bringing suit, or giving notice to the surety of the fraud practised, during which time the principal becomes insolvent, these circumstances will in equity discharge the surety.</p>

This was an appeal from the decree of the Orphans’ Court of Northampton County, on the settlement of the accounts of Jacob Frauenfelt and Conrad Frauenfelt, executors of the will of Jacob Frauenfelt, deceased. *In the Court below, the accounts of the executors were referred to an auditor, who reported that there was a balance in the hands of the executors of $1461 29, to be paid to the children of the testator, according to the directions of the will.

<p>in error.</p> <p>1. Where an action for work and labour done had been brought by A. against B. before a justice of the peace, and on the hearing C. was offered as a witness for the plaintiffs, and objected to, on the ground that he was a partner of A. in the contract, and the witness was rejected by •the justice, who dismissed the suit on the ground that it could not be maintained by A. alone, and another suit was then brought by A. and C. jointly, against B. for the same cause of action: it was held, on the trial of that cause, fthat the defendant was estopped from denying that the action was well brought; although it appeared by the evidence that the contract was with A. alone, and that 0. was not interested.</p> <p>2. Where an action of assumpsit for work and labour done, was instituted before a justice of the peace in the names of A. and B. (for the use of A.) plaintiffs, against 0., it was held, that it could not be amended on the appeal, by striking out the name of B., so as to make the action conform to the evidence, which was, of a contract with A. alone.</p>

<p>IN ERROR.</p> <p>1. Evidence of the contents of an instrument alleged to have been lost cannot be given without previous proof of its due execution, which includes proof of its delivery; and where a witness called to prove the former existence of an instrument, testified that it had been put into the hands of A. as an escrow, and A. on his examination said that he could not recollect on what occasion, or with certainty to whom it was given up, and that he should not have given it up without the consent of both parties, it was held, that evidence of the contents of the instrument was properly rejected.</p> <p>2. In an action of covenant on an agreement by which the defendant covenanted to raise a certain dam to a certain number of inches above its then height, and to maintain and keep it at that height, and in good order, casualties excepted, it was held, that evidence was not admissible on the part of the plaintiff, to show the condition of the dam previous to the agreement.</p> <p>3. In covenant on articles of agreement by which the defendants, (the Schuylkill Navigation Company,) covenanted to raise a certain dam, and to maintain it at a certain height, it was held, that persons employed as superintendents and agents of the defendants in repairing a breach in the dam, were competent witnesses for the defendants, to prove that repairs were made with all due expedition, and in a proper manner.</p>

This was an appeal from a decree of the Orphans’ Court of Montgomery county, in the matter of the administration of the goods of Sarah Saulnier, deceased.

An application was made at the last term of this Court by a society of physicians, for a certificate, entitling them to a charter of incorporation, under the provisions of the act of assembly… Held: unless called and announced in two or more of the daily papers published in Philadelphia, at least one week before the time at which the said meeting is intended to be held.” Among the by-laws which were annexed to the constitution, were the following. “ C'haf. II. Section VIII.

This was a writ of error to tbe Court of Common. Pleas of Montgomery county. On the return of the record, it appeared that a writ of scire facias issued- out of that Court to January term 1834 at the suit of Robert Jamison, against Syndonia Jamison, who survived Plugh Jamison, upon a mortgage dated the 31st day of January, 1827, executed by the said Robert Jamison and Syndonia Jamison.

<p>Insurance was made, in the sum of §2000, upon the freight of a vessel, at and from Philadelphia to Tampico; at and from thence to Laguna or Oampeachy ; and at and from either to Philadelphia or New York. By the terms of the charter-party, the charterer bound himself to pay, as the freight or hire of the vessel, during the term of the contract, the sum of §2000, “ to become due, owing and payable in manner and form following, viz. on the arrival of the said vessel and delivery of cargo, there shall be due, owing and payable the full and just sum of $1000, payable in Mexican dollars; and on the return of the said vessel to the port of Philadelphia, there shall be due, owing and payable the further sum of §1000; the said two sums making the $2000 before named.” Held, that this was to be considered an entire contract in reference to the insurance; and, the vessel having been lost on her outward voyage, that the assured wore entitled to recover the whole amount insured.</p>

*The case was as follows:— David Woolmer of the borough Norristown, said county, made his will, dated the 8th of August, 1827, and thereby, after sundry legacies made the following bequest. “ Sixth.

On a writ of error to the Common Pleas of Montgomery county, it appeared that Samuel Sherwood brought an action of trespass quare clausum, fregit, &c. against Jacob Adle to the term of May, 1836. The defendant pleaded not guilty, and a justification, viz. an order of the Court of Quarter Sessions for the widening of a certain street in the borough of Norristown, called Penn street, the defendant being a street commissioner.

<p>IN ERROR.</p> <p>The plaintiffs, holding liens for materials furnished for the erection of certain buildings, and a sale being about to take place of the buildings, under an execution, an agreement was entered into between the plaintiffs and A., who had previously purchased the buildings, subject to the liens, that the sheriff’s sale should not prejudice the plaintiffs’ liens, and that A. should either bid up the property, so as to pay the liens in full, or that ho should buy the property, and pay the liens. The property was purchased by A. who shortly afterwards made a general assignment of his property for the payment of creditors, with certain preferences, including therein the plaintiffs: Held, that the assignees were bound by the agreement entered into between A. and the plaintiffs; and that the liens of the plaintiffs continued, and might be enforced against the property, notwithstanding the sheriff’s sale and the assignment.</p>

This was an appeal from a decree of the Court of Common Pleas for the City and County of Philadelphia, in the matter of the settlement of the accounts of John Flanagan, assignee of Jacob Snyder and Charles W. Roberts. It appeared from the record of the Court below that on the 12th of May, 1885, the inventory and appraisement were filed, and bond given. On .the 11th of May, 1886, the accounts of the assignee were filed.

This case came before the Court on a motion to dissolve an injunction which had been granted on the filing of a bill by William Jarden, against the Philadelphia, Wilmington and Baltimore Railroad Company.

<p>J. 0. & W. II. S., who were the owners of a vessel, gave an order to the ' plaintiffs to make insurance on the vessel, on a voyage from Philadelphia to Canton and back, and also on $15,000 in specie out, and goods home in the same vessel, and for the same voyage. On the same day. I. C. & W. II. S. gave their promissory note, with an endorser, to the plaintiffs for the amount of the premium on both risks, payable in fourteen months. The specie was insured, was obtained by a note of W. L. & Co., borrowed from them by J. 0. & W. II. S., and discounted at a bank, where the specie was obtained, and handed over to "W. L. & Co., in whose books the transaction was thus entered : “Charge adventure to Canton, per Caledonia, in Co. with J. C. & W. II. S., with our note 23d inst., six mo. for $15,000, to be for account of J. C. & W. II. S. — the property ours — the profit or loss to be for J. C. & W. II. S.” which was approved by the latter. When the note for the premium became due, the endorser paid twenty per cent, of the amount, and he was thereupon exonerated by the plaintiffs from further liability. At the time of the insurance, J. C. & W. II. S. did not communicate to the plaintiffs the fact, that any other person '“'was interested in the specie. Held, that under all the circumstances, W. L. & Co. were to be considered as the owners of the specie and the proceeds, and J. C. & W. II. S. as their agents, and that W. L. & Co. were liable to the plaintiffs, for the amount of premium unpaid.</p>

This was an action of trover, brought by Mordécai D. Lewis and Gleorge M. Stroud, assignees of Lynd, Backus & Co. against The Bank of Penn Township in the county of Philadelphia. On the trial before Kennedy, J., at a Court of Nisi Prius held in Philadelphia, on the 10th of November, 1836, the case appeared to be as follows.

This was an action of ejectment, brought by James Murphy against Isaac S. Loyd, to recover six undivided eighth parts of a lot of ground, situate on the south side of High street between Schuylkill Fifth and Sixth streets, in the city of Philadelphia.

This case was tried before Judge Sergeant, at a Court of Nisi Prius held in Philadelphia on the 14th of March, 1838; and now came before the Court on a motion for a non-suit.

This was an action 'of trespass quare clausum fregit, &c. brought in this Court by John C. Schuler against the Northern Liberties and Penn Township Rail Road Company, its officers, agents, &c. The case was tried before Sergeant, J., at a Court of Nisi Prius held at Philadelphia on the 15th of November, 1886, when-the plaintiff proved his title to the close upon which the alleged entry was made, and gave in evidence the act of assembly for the incorporation of the rail-road…

A WRIT of quo warranto was issued out of this Court at December term last, upon the suggestion of Abraham Keyser, F. W. Bockius, Samuel Johnson, W. H. Stokes, Daniel Billmeyer, Joseph Handsbury, and Joseph Dickinson, against Charles Bonsall, John Green, Charles J. Wister, Williain Wister, Samuel Betton, Samuel Harvey, and Justice Johnson, setting forth that the complainants were on the 1st of May, 1837, duly elected trustees of a certain corporation called and known by the…

This was an action of indebitatus assumpsit, brought by Richard Coe against William Wallace Cook, to recover for the carriage and conveyance of certain goods belonging to the plaintiff, on board of the Ship Globe, on a voyage from Canton to Philadelphia.

<p>APPEAL.</p> <p>The act of the 30th of August, 1831, which provides, that after the passage of the act, no claim of a mechanic, filed in pursuance of the act of 1806 should continue to be a lien for a longer term than five years from the day of filing the same, unless a scire facias was sued out within that time, did not apply to claims which had been filed before the passage of the act.</p>

<p>This was a suit in equity, instituted by Robert L. M‘Ilvaine and Ellen Rosalie, his wife, against John Grethen, executor of the will of Allen Armstrong, deceased, and guardian of Allen Armstrong.</p> <p>The bill charged, that Allen Armstrong died in March, 1832, leaving a will, dated in the same month, whereby, inter alia, he gave to his wife all his household and kitchen furniture, for her sole and separate use ; and therein declared it to be his intention “ that that devise, and that which he should hereafter devise to her should be in full satisfaction and lieu of dowerand after-wards further gave and devised to her, “ the yearly sum of six hundred dollars for and during her natural life, if she should so long remain his widow, to be paid to her quarterly, by his executors, out of the income of his estate, real and personal. And if she should marry again, this yearly payment to cease.” He further directed his executors when, but not until, “moneys should be collected sufficient to pay from the income of his estate, all the annuities given by his will to his wife and others,” to rent a house for her, for the sum of three hundred dollars, or purchase one for her for six thousand: and provided that on her marriage, she should have neither the rent nor the house.</p> <p>The bill further stated the appointment and probate of the will by John Grethen, John C. Stanbridge, and Richard M. Burke, as executors; the dismission of Stanbridge from the ex-ecutorship by the Orphans’ Court in 1834; the absence of Burke, and his residence out of the state; and charged, that Grethen was the sole and acting executor of, and trustee under the will. It stated the surviving family of the testator, to be his said widow, two children of a former marriage, one of whom, Kitty, died unmarried, and Jane W., who married, and died, leaving one daughter, her only issue; and one son, Allen, by his last marriage. It stated, that he left a large personal estate of the appraised value of $84,000, which was much reduced, and real estate of the value of $20,000, or thereabouts: and it stated the intermarriage of the complainant, Robert L. M‘I1-vaine, with Ellen Rosalie Armstrong, the widow of the testator, on the 6th of June, 1837.</p> <p>The bill charged, that Grethen had paid various sums on account of the said annuity of $600 to the complainant, Mrs. M‘Ilvaine, up to June, 1837, but not so much as was due to her; that he had not at any time paid her any part of the house-rent, nor had he purchased a house for her: that he had since her second marriage, refused to make any payments to her; and it alleged her right to the said annuity of $600 during her life; and also to the $300 house-rent, or a house in lieu thereof; and that the condition against her marriage was void. The bill prayed an account of the estate; *and that the defendant should be decreed to make to the complainants regular payments of the said annuity of during the life of Mrs. M'llvaine; and also of the $300 house rent, or to buy a house not exceeding in value $6000, for their use during her life; and also prayed arrears, and the general relief.</p> <p>The answer admitted the material facts contained in the bill; and set forth the whole will, which, besides the bequests mentioned, contained the following:—</p> <p>To the testator’s daughter, Jane W. $400 yearly, during life, for her sole and separate use; and after her death, to her issue, if any, $6660.</p> <p>To his daughter Hetty, the same.</p> <p>To his sister Jane, $200 yearly, for life, to her separate use, so long as she remained the wife or widow of her then husband.</p> <p>To his sister Susan, $200 yearly, for life, if she so long remained a widow; which two bequests were not to be paid until after payment of the annuity to his wife, daughters, and son.</p> <p>He appointed the defendant sole guardian of the person and estate of his son Allen, until he should attain twenty-one.</p> <p>He then gave $400 yearly to his son, until he should be sixteen ; then $500 until he should be of the age of twenty-one years; then $750 until he should be twenty-five: and in case of the death of his son before twenty-five, unmarried and without issue, he gave to his said wife one half of the said annuity for life, if she should so long remain his widow; the other half to his daughters. And in the same way he devised if his son should die after twenty-five without issue.</p> <p>He authorized and empowered his executors to take charge of all his real estate, and to manage, repair and lease the same, and collect rents, and out of rents, &c. to pay taxes and expenses, and the several yearly sums thereinbefore bequeathed, and to invest the surplus, if any: and gave to Allen, after twenty-five, the income of his estate during life, after paying the annuities before-mentioned: and after his death devised to his issue, if any, all the. estate, share and share alike: and if he died without issue, then one-half of the income to be paid to his, testator’s, wife during life, if she should so long remain a widow, and the other half to his other children, and the principal to their issue; but the estate not to be divided until after the death of the testator’s wife, or her marrying again: and then made disposition of it, in the event of the death of his daughters without issue.</p> <p>The answer alleged an election on the part of the testator’s widow to take under the will, and payments to her in consequence thereof, until her second marriage: and that the respondent had not bought a house, nor paid the house rent, because the estate was never sufficiently productive, after the payment of all the annuities, because the complainant had never expressed her desire to *keep house, and because she had married a second time. And it denied any arrears of the annuity of $600; declared the income of the estate to be about $1700; and set forth the accounts.</p> <p>The answer further denied the jurisdiction of this Court, because the remedies and relief prayed by the bill are cognizable in the Orphans’ Court, which has the sole and exclusive jurisdiction- touching all matters connected with the distribution of the assets of the decedent; and that this Court can have jurisdiction only upon appeal from the Orphans’ Court, where the accounts of the executor were alleged to be still pending. And it alleged the want of parties in the bill, viz., of Jones, the guardian of the issue of Jane W., and of the testator’s sisters, and of Burke the other executor, (as to whom it Avas stated in the ansAver, that he resided in NeAV York, and had given a power of attorney as executor to the defendant to act for him). And it alleged the condition that the complainant remained a AvidoAV to be valid and operative, both at law and equity.</p> <p>The cause Avas heard on the bill and answer. Mr. Ingraham appeared for Jones, the guardian of the child of Jane W.; Mr. Rice, for' one of the testator’s sisters; Mr. J. A. Phillips, for the other, and for the defendant.</p>

<p>in error.</p> <p>1. In an action against three joint obligors in a bond, the sheriff returned, that he had summoned one, and “ niliil habent,” as to the others: Held, that one of the obligors not summoned was not a competent witness for the defendant, although the latter paid into Court a sum sufficient to cover the principal and interest of the bond, and the costs of suit.</p> <p>2. By articles of agreement, A. contracted to sell to B. a certain number of acres_of coal land, and to execute a deed to him, on the' payment of a certain sum of money. Afterwards B., by articles of agreement, sold to 0. the said contract, on certain terms, viz. the payment of a certain sum of money at the time the deed was to be delivered by A., provided C. should be satisfied as to the title to the land; for which purpose a reasonable time was to be 'allowed for the investigation of the title. After this A. conveyed the land to 0. with general warranty. In an action by B. against C., on a bond given by him for the purchase-money, under the contract, it was held, that 0. could not set up as a defence, that the title to the land was defective, in consequence of which he had failed in an attempt to recover the land by ejectment.</p>

<p>IN ERROR.</p> <p>1. In an action for breach of a warranty in the sale of goods, it appeared that the sale was made by A. as the agents of the defendants, and that after the plaintiff discovered the alleged defects in the sale of the goods, A. guaranteed that the goods should prove to be of the first quality, and that he would refund as much as two disinterested persons should certify to be just. An award was made, finding that a certain allowance should be made: Held, that A. was nevertheless a competent witness for the defendant.</p> <p>2. Goods were sold to the plaintiff by A. as agent and consignee of the defendants, who were manufacturers abroad, on the plaintiff’s notes at six, seven, and eight months. The plaintiff discovering certain defects in the goods, refused to give the last note; whereupon A. entered into a guaranty that the goods should prove to be of the first quality, and stipulated to refund as much as two disinterested persons should certify to • be just. After this, the amount of the note was paid to the defendants. Two persons were appointed referees, who disagreed and an umpire was appointed, who, with one of the referees, made an award, finding that a certain allowance should be made : It seems, that this award was prima facie evidence of the extent of the defendant’s liability, and that it was a question of fact for the jury, whether the defendant had not ratified the award so as to be operative upon both plaintiff and defendant.</p>