Volume 30 — Pennsylvania State Reports

<p>The legislature has no power to alienate any of the rights of sovereignty, such as that of taxation, so as to bind future legislatures; and any contract to that effect is void.</p> <p>The rights of sovereignty are a trust, to be exercised for the benefit of the people, as occasion may require; not to be abandoned or bargained away at the discretion of their agents.</p> <p>The Act 16th May 1857, for the sale of the Main Line of public improvements, is unconstitutional, in so far as it provides that, if the Pennsylvania Railroad Company shall become the purchasers, they shall pay, in addition to the purchase-money at which it may be struck .down, the sum of §1,500,000; in consideration whereof, the said railroad company, and the Harrisburg Railroad Company, shall be discharged by the Commonwealth for ever from the payment of all tonnage taxes, and all other taxes whatever, except for school, city, county, borough, and township purposes.</p> <p>The canal commissioners, as public officers, and any loan creditor of the state, or tax-payer, have such an interest in the question as will authorize them to maintain a bill for an injunction to prevent the execution of such an unconstitutional act.</p> <p>The act provided that the sale should be made by the governor: held, that as this was not a part of his official duty, as executive of state, but merely ministerial, an injunction might issue against him.</p> <p>The act is not unconstitutional so far as it provides for the sale of the public works ; and the holders of state loan, whether they have a specific lien on the tolls of the public works, or not, have no right to object to a sale thereof by the state.</p> <p>A dissenting stockholder of the Pennsylvania Railroad Company cannot have a preliminary injunction to prevent the company from becoming the purchasers, under the authority of the act. His rights can only he determined on the final hearing.</p>

<p>A railroad corporation may abandon its charter, and dissolve itself, except far as its public duties as conservators of a highway may limit this power; and the legislature may release it from this limitation, and allow a transfer of its duties to other hands.</p> <p>A single stockholder has no right to object to a transfer of all the property of the corporation to another company, under the authority of an act of assembly.</p> <p>But he cannot be compelled by law to accept the stock of the other company in payment for the shares held by him; and a court of equity will restrain the corporation and its officers from entering into a contract to that effect.</p> <p>The dissolution of a corporation is not a corporate act, but an act of the members of the corporation; and its officers in effecting such an arrangement act as trustees of the members, not as corporate functionaries. Under the constitution, a majority of the members of a corporation cannot be authorized to divest the interest of a dissenting stockholder, by a transfer of the whole of its property to another company, to be paid for in the shares of such other company, without first giving security for the interest of such dissenting stockholder.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of debt upon the official bond of Samuel Allen, as sheriff of the county of Philadelphia. The breach assigned was a failure to return a fieri facias placed in his hands, and default in selling the property seized under the Writ.</p> <p>The firm of C. P. Knight & Co. recovered a judgment in the Supreme Court against William McGuire, for $807.85; and, on the 5th December 1853, they issued a fi. fa. upon this judgment, .and placed the same in sheriff Allen’s hands. Under this writ, the sheriff levied upon a leasehold interest for life, and also upon a small stock of groceries in a store.</p> <p>On-the 16th December 1853, upon the affidavit of Benjamin Sharpe, that he was the owner of the goods levied on, an order was made for an interpleader between Sharpe and the plaintiffs. That proceeding terminated on the 11th April 1855, and established that the goods were liable to seizure and sale at the suit of the plaintiffs. On the 12th April 1855, the court granted a rule upon the sheriff to return the fi. fa. on or before the 21st of that month. And on the 19th of the same month, the sheriff sold the goods levied upon for $33.33; but did not return the writ until after this suit was brought.</p> <p>On the trial of the cause, the defendants offered as a witness George K. Wise, who had been an assistant to the deputy-sheriff, but held no appointment from the sheriff: the plaintiffs objected to his competency, but the court admitted his testimony, and sealed a bill of exceptions.</p> <p>The court below (Sharswood, P. J.,) charged the jury: 1. That the life estate could not be sold under the fi.fa. 2. That if the sheriff sold the goods levied on, the damages should be only nominal. To which the plaintiffs excepted.</p> <p>There was a motion for a new trial, on which the following opinion was delivered by the court below:</p> <p>Per Quriam. — “ This was an action on the sheriff’s official bond for not returning a fi. fa., and for not selling goods levied on.</p> <p>“ So far as the latter part of the complaint is concerned, it was left to the jury to say upon the evidence, whether the sheriff had proceeded and sold the goods levied on. They have in effect found by their verdict that the property sold was all that had been levied on, and that there was no liability on the sheriff on this ground.</p> <p>“ As to the former part of the complaint, the non-return of the writ, the fact was that, at the time the plaintiff’s suggestion was filed, the writ had not been returned, although the sheriff had' been ruled to do so, and the time fixed in the order of court had expired. It was left to the jury to say what damage the plaintiff had suffered, and the jury was instructed that if they thought he had suffered no damage, they ought still to find for the plaintiff nominal damages. The plaintiff has no right to complain of this direction. It is true, that the jury were instructed that the lease of the premises being a lease per autre vie, and not thereon subject to be seized and sold upon, under a fi. fa. as personal property, was to be excluded from their consideration altogether. We see no error in this. If, as is clear, the sheriff was not bound in law to sell that interest on a fi. fa., and indeed had no legal authority to do so, the plaintiff could have suffered no loss by his failure to do so, for which the sheriff would be made to respond in damages, under the suggestion filed in this case.</p> <p>“ As to the competency of the agents of the sheriff’s deputy to testify in the ease, it is within the principle well settled, that though an agent may be incompetent to relieve the principal from the consequences of his own negligence, persons employed by him and acting under his orders are. Their liability is too remote and contingent to affect their competency; nor could the verdict and judgment be given in evidence against them, which seems to be the principal ground in which the agent himself is held incompetent to testify in such a case. Rule refused.”</p> <p>The plaintiffs then sued out this writ, and here assigned for error: 1. The admission of the testimony of George K. Wise. 2. The charge of the court.</p>

<p>Municipal claims require substantially the same precision as those of mechanics and material men.</p> <p>A claim which does not state the nature and kind of the work done, or the place where, or the time when it was done, is defective; and should be stricken off, on motion.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Thomas 'vT. Cooke against The City of Philadelphia, to recover back a sum oi^money paid, as he alleged, under coercion, for water pipes, in frohtr of a lot of ground of which he was the owner.</p> <p>The district of Kensington, on the 27th June 1852, filed a claim for $131, against the heirs of Ward, for water pipes laid in front of a lot of ground on Queen street. The pipes were stated therein to have been laid on the 4th January 1852.</p> <p>The lot was subject to two mortgages, dated respectively the 18th June and 8th July 1847. On the 3d May 1852, it was sold at sheriff’s sale for $3250, to Theodore Cuyler, under a judgment for arrears of ground-rent; and the sheriff distributed the fund to the ground landlord and the two mortgages, leaving nothing for the municipal claim, which had not then been filed of record.</p> <p>The plaintiff below traced his title regularly from the purchaser at the sheriff’s sale; and in 1856, being desirous of introducing the water into the premises, he applied for a permit, at the Water Department of the city of Philadelphia, but was told it could not be granted until payment was made of the claim which had been filed by. the district of Kensington, and which, by consolidation, had become the property of the city. The plaintiff paid the claim, received the water, and brought this suit against the city, to recover back the amount.</p> <p>The defendants, on the trial, submitted the following points of law, upon which they requested the court to charge the jury :</p> <p>1. The entire fund arising from the sheriff’s sale, being applicable to the prior ground-rent and mortgages, and having been actually so applied, no adequate fund was raised by the sheriff’s sale for the payment of the claim for water pipes, and the lien thereof was not thereby discharged. '</p> <p>2. The payment of the claim, if a mistake at all, was one of law, and the amount is not therefore recoverable back.</p> <p>3. Independently of the question of lien, the city of Philadelphia has the right to say, and, by ordinance, has said, that water shall not be introduced until the amount of water pipe has been paid.</p> <p>They also gave in evidence the following section of an ordinance of 29th January 1855:</p> <p>“ Section 2. That no permit for the use of water shall be issued, unless at the time of the application, the person or persons shall exhibit the receipt of the proper officer for the amount of assessment or other satisfactory evidence of the payment thereof, for the expense of laying the water pipe on the premises for which the permit is requested.”</p> <p>The judge reserved the points of law submitted by the defendants and charged the jury as follows : — “ The question for the jury is, whether this payment was made under coercion of the threat, that the plaintiff should not have the water without making the payment.”</p> <p>The jury found a verdict] for the plaintiff for $217.32, subject to the opinion of the court on the points, reserved.</p> <p>The court in banc subsequently gave judgment for the plaintiff on the reserved points, and the following opinion was delivered by</p> <p>Shakswood, P. J. — “ This case comes up upon reserved points. The facts are, that the late Kensington district had a claim for water pipe laid in front of plaintiff’s premises, filed June 27th, 1852. The work was done January 4th, 1852. The property was sold by the sheriff May 3d, 1852, and the fund being brought into Court, wras distributed and paid to mortgages of the year 1847. The plaintiff claimed under the sheriff’s deed; and having occasion to introduce the water into his premises, he applied to the proper department of the city corporation for that privilege. He was told chat he could not have the water unless he discharged this claim for water pipe. Under the coercion of that threat, as the jury have found, he paid the money, and now seeks to recover it back in this suit.</p> <p>“ We think that the lien of this claim for water pipe was discharged by the sheriff’s sale. The case of Northern Liberties v. Swain, 1 Harris 113, as far as the opinion of the Supreme Court upon a point not directly before them can be, is an express authority to the point. The counsel for defendant suppose that the Act of 11th March 1846, ought now to rule the point differently. But all that the act of 1846 does, is to save the lien of a municipal claim where the fund is insufficient to pay it, and only to the extent that it is insufficient. By legislation and judicial construction, it is settled that liens for taxes and municipal charges take precedence of all other encumbrances, whether before or after the time when they accrue. The lien, however-, of a first mortgage, is preserved notwithstanding the existence of such a claim, whenever a sheriff’s sale under a claim or encumbrance subsequent to it in date takes place. Upon the sale of the equity of redemption in such a case the municipal claim comes in upon the proceeds, and so far, and only so far, as they are sufficient to pay, it is discharged. It is still a lien, however, having precedency over any mortgage or encumbrance prior in date until it is paid. If the whole estate is turned into money by a sale upon the first mortgage, oías here, upon a judgment for arrears of a ground-rent prior in date to the mortgages, it is entitled still to be paid first out of the proceeds. In other words, as expressly held in Perry v. Brinton, 1 Harris 202, the Act of the 11th April 1835, does not operate to impair the priority of liens for taxes and municipal charges, but only to save the lien of a mortgage from being discharged by a sheriff’s sale in consequence of such lien ; and so far from supposing that the Act of March 11, 1846, had altered the law in this respect, Judge Bell argues from it as confirmatory of that conclusion.</p> <p>“ The fund then produced by the sheriff’s sale in this case was applicable to the payment of this lien. The district of Kensington was thrown upon this fund, and having neglected to make her claim, not only is the lien discharged, but the claim is in law paid. The Bank of Pennsylvania v. Winger, 1 Rawle 295, and Finney’s Administrators v. The Commonwealth, 1 P. R. 240, are full up to that point. The 2d section of the ordinance, January 29, 1855, does not, therefore, apply {Pig. 673). It provides ‘ that no permit for the use of water, shall be issued, unless at the time of the application the person or persons shall exhibit the receipt of the proper officer for the amount of assessment or other satisfactory evidence of the payment thereof.for the expense of laying the water pipe on the premises for which the permit is requested.’ The plaintiff might have produced such evidence. The sheriff’s vendee had paid the full amount of this claim for laying pipes into the hands of the sheriff, and the sheriff was in that case the proper officer to receive it, and the debt was paid thenceforth as truly as if it had been paid to the treasurer of Kensington district. If, through the supineness of its agents, the district never got the money, the sheriff’s vendee or those claiming under him are no more to suffer, than if, after a payment to a treasurer or other tax collector, the money should never actually come to the use of the public.</p> <p>“ It is argued, however, that this money, if paid under a mistake at all, was paid under a mistake of law and not of fact, and, therefore, cannot be recovered back. It is true that the authorities are so. Carson v. McFarland, 2 Rawle 118; Ege v. Koontz, 3 Barr 109. But in these cases the party to whom the money was paid, might in good conscience retain it. If payment was in fact made to a creditor, and the debtor under a mistaken idea that the first payment was a bad one, should pay it a second time, the cases hardly go so far as to say that such second payment could not be recovered back. Bise v. Dickerson, 1 T. R. 285, was a payment made with a full knowledge of the facts; and there are not wanting American eases which recognise this very distinction; Northrop v. Graves, 19 Conn. 548; Culbreath v. Culbreath, 7 Georgia 64; and I can find no case in Pennsylvania inconsistent with it.</p> <p>“ But suppose this point to be as contended for by defendants’ counsel, was this payment a voluntary one ? The jury have found that it was made under the coercion of a declaration, that unless he paid, it, he should not have the privilege of the use of water. The plaintiff was under no moral or legal obligation to pay. The defendants had neither legal or moral title to receive what a former owner had actually paid to the officer of the law, and which they, by the supineness of their officers, had lost. The property in question was a mill about to be started: the use of the water essentia] to carrying it on. To wait until the question as to the liability of the property was settled by legal proceedings, would be a serious and irreparable loss to the plaintiff, even if he could himself bring it to a decision. It is true, there are cases which say that there must be an actual distress of goods to make a payment involuntary; a mere threat is not enough. This is a sound rule as between private persons. . But in the case of a man dealing with a public officer, the rule ought to be different. It has been held that payment to a collector of taxes who has a tax bill and warrant for levying the same in the form prescribed by law, is not a voluntary but a compulsory payment; and if the tax so paid be illegally assessed, it may be recovered back: Joyse v. Third School District, 6 Cushing 567. The same question passed sub silentio in the Bridge Co. v. Frailey, 13 S. & R. 422; Commissioners of Erie v. Dobbins, 7 Watts 513, which were actions to recover back taxes actually paid, on the ground that they were illegally assessed. We think there was no error in submitting to the jury the precise question which was submitted, viz: Whether the payment was made under coercion of the threat that plaintiff should not have the water without making the payment. Rule discharged, and judgment for plaintiff.”</p> <p>The defendants sued out this writ to reverse the judgment, and assigned for error, the refusal of the court to charge as requested in the points submitted on the trial.</p>

<p>Error, to the District Court of Philadelphia.</p> <p>This was an ejectment brought, in the court below, by Henry W. Gault against John Delaney, for a lot of ground on the west side of Tyler street, north of Poplar street, in the city of Philadelphia, containing 16 feet in front, on Tyler street, by 37 feet in depth.</p> <p>The plaintiff below claimed as purchaser at sheriff’s sale under a levari faeias. He gave in evidence a record of the Court of Common Pleas, showing a claim for $14.20 for paving, filed 3d January 1849, by the district of Spring Garden, against Edward and William Beeves, describing a lot containing 32 feet in front, and running from Tyler street to Hutchinson street, a depth of 82 feet; which included the lot in controversy, and three other lots owned by different persons, of which four lots, two fronted on each of said streets; a seire faeias thereon issued December 6th, 1853, and a return thereto as follows, “ Made known by posting a true and attested copy of the within writ upon the premises within described, December 30th, 1853, and by advertising twice a week for two weeks, in the North American, a daily paper published in the city of Philadelphia, agreeably to the Act of Assembly.” This was the only evidence on the record of notice to any body.</p> <p>The 30th day of December, mentioned in this return, was the Friday before the return day.</p> <p>This record further showed a judgment for want of an affidavit of defence, a levari faeias thereon issued December 6 th, 1854, and a return of a sale to the plaintiff for $50. The sheriff’s deed to him, and the summons in ejectment, were also given in evidence. '</p> <p>The defendant below deduced his title regularly under one Robert Pollard, who owned the premises when the claim was filed; and proved that Edward and William Reeves owned no part of said premises at that or any other time, but were then the owners of adjoining premises. He also showed by a receipt that the claim had been actually paid to Joseph Allison, Esq., then solicitor of the said district, on the 30th of May 1850, by one Robert Walker, an owner of the adjoining premises under the Messrs. Reeves, who supposed the claim to be against his lot.</p> <p>To rebut this evidence, the plaintiff below had a receipt as follows, viz.:— ‘</p> <p>“Received, November 1, 1856, of Joseph Allison, the above sum of fifty-two dollars, the amount originally paid having been paid in mistake as upon the wrong property, and is hereby returned. Robert Walker.”</p> <p>At the time this receipt was given, Mr. Allison was no longer solicitor of the district, and this money was refunded to Mr. Walker out of his own pocket.</p> <p>The defendant below objected to the admission in evidence of the record of the Common Pleas, and argued that it was a nullity. 1. Because the claim was in fact paid before the scire facias issued thereon. 2. Because the claim was not filed against the owner or reputed owner. 3. Because the record did not show affirmatively a compliance with the statutes regulating paving in said district. 4. Because the record showed that notice of the claim and scire facias had not been given in conformity with the Acts of Assembly. But the court below overruled the objection, and admitted the record in evidence.</p> <p>The defendant also contended that, if the judgment were not a nullity, the execution under it could only convey the title of the Messrs. Reeves; or that, at least, Delaney, the defendant, must be permitted to make, in this ejectment, the same defences he might have made to the scire facias on the claim.</p> <p>The learned judge, however, diregarded these points, and instructed the jury to find for the plaintiff, which they did. Judgment having been entered on the verdict, the defendant below sued out this writ of error, and assigned for error the admission in evidence of the record of the Oomman Pleas; and also the charge of the court below to the jury.</p>

<p>In an action for a malicious arrest and imprisonment on civil process, the suit being for an alleged infringement of a patent right, it is necessary to prove not only that the plaintiff was the first inventor, and therefore that the patent was invalid, but also that the defendant knew his patent was void on that ground. The possession of the letters-patent constituted sufficient probable cause for the suit, unless the defendant had knowledge of their invalidity.</p>

<p>Ceetipicate from the Court of Nisi Prius.</p> <p>This was an action of assumpsit by Jacob O. Ewing against J. Dickinson Sergeant and William S. Blight, executors of Elizabeth B. Sergeant, deceased, to recover a balance due him as agent of the testatrix in her lifetime. The declaration contained the common counts only; the first set of counts alleging money lent, &c., to the testatrix, and a promise by her; the second set, money lent, &c., to the testatrix, and a promise by the executors; and the third set, money lent, &c., to the executors, and a promise by them. The pleas were non assumpserunt; non assumpsit testatoris; payment and set off, with leave, &c.; no assets; plene administraverunt; and the following special plea:</p> <p>“ And the said defendants, for a further plea in this behalf, by leave of the court here for that purpose first had and obtained, say that the said plaintiff ought not to have or maintain his aforesaid action thereof, against them the said defendants, because they say that heretofore, to wit, on the 23d day of July, A. D. 1853, at the county aforesaid, the said plaintiff filed his certain petition in the Orphans’ Court of the county of Philadelphia, setting forth, inter alia, that the said plaintiff was a creditor of the 'estate of the said Elizabeth B. Sergeant, that these defendants were her surviving executors, that they had not filed their accounts, although more than a year had elapsed since they took out letters testamentary, and praying for a citation commanding them to file their accounts of said estate; whereupon the court granted the prayer of said petition, and awarded a citation accordingly, which citation was duly issued and served upon these defendants, who, in compliance with the requisition thereof, did afterwards, to wit, on the 21st day of October 1853, file in the office of register of wills in and for said county, a full and complete account of their administration of the estate of the said Elizabeth B. Sergeant; and due notice of the filing of said account having been given according to law to all persons interested, and duly proved, and said account having been certified in due form and course to the said Orphans’ Court, the said court referred said account to an auditor to audit, settle, and adjust the same, and report distribution; which said auditor having given like and legal notice to all parties interested of his said appointment, and of the purposes thereof, and of the time and place where he would sit for said purposes, did, at said place, and at said time, and by adjournment from time to time, and at divers other times, sit, as such auditor, for the purposes aforesaid, to hear the parties interested in said estate, and to take proof of, hear, and decide upon all claims against the same, and with full power so to do according to law and the acts in such case made and provided; and having so, after due notice as aforesaid, sat and heard all parties who appeared before him, and taken proof of, heard, and decided upon all claims against said estate, and the said plaintiff with full notice and knowledge of the appointment of said auditor, and the purposes thereof, and of his sitting as aforesaid, not having appeared before him, or made any claim against said estate, the said auditor did make or award, and did report to said court a full and complete distribution of the whole of the balance of said estate, to wit, of so much thereof as remained unadministered in the hands of these defendants, to and among the creditors and legatees of her, the said Elizabeth B. Sergeant; and the said award and report of the said auditor were, subsequently, to wit, on the 3d day of March, A. n. 1854, by the final decree of said Orphans’ Court confirmed absolutely, and said decree of confirmation now, still is and remains in full force and effect, and not reversed or vacated, as by the record and proceedings thereof, remaining in the said Orphans’ Court more fully appears; and these defendants aver that payment and distribution have been made by them in pursuance of said report, and according to the terms thereof, and of the said decree confirming the same; and this the said defendants are ready to verify; wherefore they pray judgment if the said paintiff ought to have or maintain his aforesaid action against the said record, and the force and effect thereof,” &c.</p> <p>To this special plea there was a demurrer, which, after argument, was sustained by the court, and the parties went to trial on the issues of fact.</p> <p>The plaintiff below, Jacob O. Ewing, was for many years the agent of Mrs. Sergeant, haying charge of all, or nearly all of her property. He kept accounts which resulted in an apparent balance against her on the 1st January 1852, of $18,589.53. This balance was the first item in the bill of particulars furnished; and with later items of debit and credit exhibited, as due on the 1st December 1854, the sum of $13,182.71, which, with interest, .was the amount claimed in this action. •</p> <p>On the trial before Lewis, O. J., the plaintiff called for the production of certain accounts found by the defendants among the papers of their testatrix. These were produced, and the plaintiff, after offering evidence tending to show that Mrs. Sergeant had received these accounts in her life time, and examined and acquiesced in them so far as to make them primé faeie evidence against her estate, offered them in evidence; the court admitted them in evidence, notwithstanding an objection by the defendants, and sealed a bill of exceptions.</p> <p>The executors to rebut the case made by these accounts, and also under the pleas of “no assets, ’’and “plene administraverunt,” offered in evidence the record of the Orphans’ Court, referred to in their special plea. This was objected to, and ruled out by the court, and became the subject of another bill of exceptions.</p> <p>The plaintiff, after the executors had closed, offered in evidence the record of an action for mesne profits brought against him by them, in which they recovered a large verdict. This was objected to as irrelevant, but the court, “ being of opinion that the evidence given might justify some claim against Mr. Ewing for not delivering up the property to his principal, according to the terms of the agency for which he is claiming compensation in this action,” admitted the evidence, “ for the purpose of repelling any claim for profits compensated by the verdict.”</p> <p>The admission of this evidence constituted another bill of exceptions.</p> <p>The learned judge charged the jury that the accounts given in evidence, with the circumstances of acquiescence proved on the part of Mrs. Sergeant, were primé facie evidence against her estate; but nevertheless, if any errors were pointed out and established by evidence to the satisfaction of the jury, they might be corrected.</p> <p>Thejuryfound averdict in favour of the plaintiff below for the sum of $13,314.30. The defendants then moved in arrest of judgment, on the ground of misjoinder of counts in the declaration; upon which the court made the following order: “ that the verdict be entered on the counts charging causes of action against the testatrix according to the evidence given on the trial; there being no evidence given on the trial of any cause of action personally against the defendants.”</p> <p>Judgment was entered on the verdict, in accordance with the order of the court; whereupon the defendants removed the cause, and here assigned for error: 1. That the court below erred in sustaining the demurrer to the special plea. 2. The admission and rejection of the evidence mentioned in the several bills of exception. 3. The refusal to arrest the judgment.</p>

This was an action of covenant by Joseph Battin and Samuel Battin against William Johns and Thomas Johns, trading under the firm of William & Thomas Johns, on a similar agreement to the one set forth in the case of Heilner v. Battin, 3 Casey 517. The agreement was signed J. S. Battin, per Daniel R. Bennett, and William & Thomas Johns.

<p>Appeal in Equity from the Court of Nisi Prius.</p> <p>This was a suit in equity by John Graham and others, the children and grandchildren, devisees of John Graham, deceased, against Stephen Pancoast, Seth Pancoast, and Elizabeth S. Pan-coast, for the rescission and cancellation of an article of agreement for the sale of certain real estate, in West Philadelphia, to Elizabeth S. Paneoast, one of the defendants, alleged to have been obtained from the decedent, on the 31st January 1854, by fraud, misrepresentation, and undue influence; and also for the redelivery of certain title deeds, and other writings, relating to the property, obtained by the defendants, at the same time, and by the same means.</p> <p>From the evidence reported by the examiner, it appeared that John Graham, the decedent, on the 31st January 1854, was the owner of a piece of ground on the north side of Market street, in West Philadelphia, estimated by the witnesses to be worth from $10,000 to $15,000. He was then between 87 and 88 years of age, extremely feeble, and resided in the family of his son-in-law, Isaac Bittle, a day labourer, in Coopertown, in Delaware county.</p> <p>On that day, Dr. Seth Pancoast and his father, Stephen Pan-coast, called on the decedent, at Bittle’s residence, no one being present but a granddaughter, Jane Bittle, and offered to purchase the property on a ground-rent of $5000, the purchaser to pay for the water pipes. They urged him to close the matter at once, as they had another property in view, and on his assenting to it, Dr. Pancoast drew up the following article of agreement for the sale of the property to his sister, Elizabeth S. Pancoast:—</p> <p>“ Sold this thirty-first day of January, eighteen hundred and fifty-four, to Elizabeth S. Pancoast, of the district of Spring Garden, county of Philadelphia, all that ground, with improvements, situated on the north side of Market street, in the borough of West Philadelphia, the property of John Graham, of Haverford township and the county of Delaware, for the sum of five thousand dollars on ground-rent, the rent to be paid semi-annually; the water pipes to be paid for by the purchaser. In order to close the bargain, twenty-five dollars is hereby paid in the presence of witnesses.</p> <p>John Graham. [Seal.]</p> <p>Witnesses. — Isaac Bittle, Jane Bittle.”</p> <p>This agreement was signed by Graham, and the $25 paid to him. It was subsequently witnessed by Isaac Bittle and his daughter, and the defendants obtained the title deeds for the property.</p> <p>On the 9th February 1854, N. B. Browne, Esq., the counsel of John Graham and his children sent a written notice to Dr. Pancoast, that Graham, from extreme age and physical and mental weakness, was utterly unfit to manage his own affairs, of which the very inadequacy of the price proposed to he given — about one-fourth of the actual value — was sufficient evidence; and, therefore, no conveyance of the property would be executed; and the return of the title deeds was requested.</p> <p>Soon after the receipt of this notice the defendants proceeded to Ooopertown, taking with them a justice of the peace, and required John Graham to execute a deed for the property. He refused to execute, alleging that his children were not satisfied, that the price was inadequate, and that he himself was not capable of attending to business. He also asked if they had received the $25 which he had sent back to them.</p> <p>A great deal of evidence was given as to the mental and physical capacity of John Graham, the result of which is stated in the opinion of the court; but there was no evidence of the misrepresentations charged in the bill. The court below dismissed the bill without prejudice; and this appeal was taken by the complainants.</p>

<p>Appeal in Equity from the Common Pleas of Montgomery county.</p> <p>This was a bill in equity by Philip Nace against John Boyer and Thomas Shull for the rescission of an executed conveyance, alleged to have been obtained from him by fraud and unfair practices.</p> <p>The bill set forth that on the 29th October 1853, the complainant executed a conveyance of all his estate real and personal, unto the defendants and his son Tobias Nace, in trust, first to pay his debts, and then to invest the residue of the estate, and thereout, after paying the expenses of the trust, to support and maintain the complainant during his natural life, and at his decease divide the same equally among his children. That Tobias Nace on the 21st August 1854, was dismissed from the trust. That the other trustees, the defendants, are the sons-in-law of the complainant, in whom he placed the most unlimited confidence. That the said defendants abused the confidence so reposed in them, and by fraud and deception obtained his signature to the said conveyance. That he executed the same under an entire misapprehension on his part as to the nature and effect of the same, and without a proper knowledge and understanding of its contents; the same not having been read and explained to him as it should have been.</p> <p>That the allegations contained in the recitals of the said instrument were untrue, except as to .his indebtedness, which, in point of fact, only amounted to $1550, whilst he had an estate worth about $8000 to pay the same with. That his son, Tobias, was not then aware of the effect of the said deed, and had since repudiated the whole affair. That complainant had an idiotic son, wholly unprovided for; and that by the said deed he had deprived himself of the means of supporting his said child; complainant being sixty-nine years of age and unable to earn a livelihood for the subsistence of his said child. He therefore prayed that the said instrument might be declared to be null and void, &c.</p> <p>The defendants, by their answer, denied all fraud or unfair dealing in obtaining the deed in question, and alleged that the same was executed with the full knowledge on the part of the complainant of its effect, that it was dictated by himself and read over and explained to him; and that he was fully warned of the consequences of what he was about to do. That they had no knowledge that they were to be named as trustees until the time of its execution, and would not have acted had they believed the same was not executed voluntarily.</p> <p>To this the general replication was filed; and a great mass of testimony was taken before the examiner by both parties, the result of which is fully stated in the opinions delivered in the court below and in this court.</p> <p>The court below (Smyser, P. J.,) after hearing, dismissed the bill, and delivered the following opinion:—</p> <p>“ I have looked into the bill, answer, and testimony in this case, predisposed to grant the prayer of the bill, if there appeared to be any reasonable grounds for supposing that the deed in question was unfairly or unduly obtained.</p> <p>“ The principles applicable to cases of this kind are well settled and understood.</p> <p>“ In all cases of actual fraud, the conveyance is void both at law and equity. So in all cases of duress, either of the body or of the mind and will. So, also, where there is such defect of mental capacity and understanding as indicates the absence of a disposing mind and memory. In all these cases, the instrument is avoided without reference to the question whether the settlement is a reasonable or unreasonable one, or the bargain conscionable or otherwise ; neither is it necessary to show circumvention, undue influence, ignorance, or surprise, except so far as they shed-collateral light on the main inquiry.</p> <p>“ There may, however, be cases of weakness of understanding and feebleness of intellect, but inferior to that sort and degree of imbecility which would warrant a jury in finding a man to be insane, or non compos mentis, or lunatic. In all such cases, so long as a man is legally compos mentis, he is not the subject of equitable protection in his contracts or settlements, unless he has been the subject of surprise, undue influence, deceit, or something equivalent thereto. Otherwise, his will is a sufficient reason in equity as well as law, whatever courts of equity may think of the wisdom of its exercise. With that we have nothing to do, save as an unwise, unusual, or unconscionable bargain or arrangement may go, in aid of other circumstances, to establish an unfair tampering with, and practice upon, a weak intellect.</p> <p>“But if a weak mind, yet legally compos mentis, has been drawn into a bargain by the influence of falsehood and deceit— if one who, by reason of his feeble understanding, is liable to imposition, has been circumvented by cunning, operated upon by artifice, or overcome by undue influence and importunity — if advantage has been taken of a situation of extreme distress or necessity, to obtain some unfair advantage — if the grantor has been importunately pressed, so that an opportunity was not afforded him to act deliberately and understandingly — if he acts under the influence of strong and urgent persuasions from those in whom he reposes special confidence, or who stand towards him in some special relation of trust and confidence — if he was taken by surprise, and he had no opportunity afforded him for suitable deliberation, or such surprise was accompanied by circumvention and fraud, or some contrivance and management to mislead him — if, in a sudden emergency, the opportunity to consult with counsel or friends is denied him — in all these, and many analogous eases, a court of equity will interpose for his relief on the ground of constructive, where the circumstances do not amount to actual fraud.</p> <p>“ Does the testimony in this case make out incapacity such as would amount to disability per se, or fraud either actual or constructive? If either one of these questions can be answered affirmatively, the plaintiff will be entitled to the relief prayed for. If all are answered in the negative, the bill must be dismissed.</p> <p>“As to the first question — had Philip Nace, Sr., sufficient mental capacity to make a will or deed at the time of this conveyance ?</p> <p>“ The presumption always is in favour of capacity. That easts the onus of showing incapacity on those who allege it.</p> <p>“ Here, I think, the preponderance of proof is greatly in favour of the defendants. Six witnesses, to wit: Henry Krieble, Henry Weishley, John Nice, Michael Nace, Tobias Nace, and Sarah Nace (the three last being children of complainant), testify to his incapacity. On the other hand eleven, to wit: Frederick K. Smith, John H. Kaull, George Nace, Wm. Gorgas, John Haag, John Hartranft, Jesse Hildebitle, Jacob Kraft, Jacob C. Moyer, Elias Barndt (a son-in-law), and Philip Nace, Jr. (son of plaintiff), testify with more or less directness, positiveness, and circumstantiality, to his sanity and competency to do the act in question. After making every allowance and abatement on account of the different degrees of knowledge and opportunities for acquiring it on the part of the witnesses on both sides, I think the balance still x'emains as originally inclined. The testimony of his son Philip, with whom he lived before, at the time of, and after the conveyance, and. of his hired man John Haag, is entitled to special consideration, on account of their superior and constant opportunities of observing the state of his mind and conduct. Nor is the testimony on this point of Esquire Smith, corroborated strongly as it is by that of Philip Nace, Jr., Jacob Kraft and others, as to the circumstances of his conduct immediately preceding and at the time of the conveyance, of less importance. The attempted impeachment of Squire Smith, by the testimony of Krieble and Weishley as to the declaration of the former on the 8th of May, I do not think entitled to much consideration. 1st. It is more likely that these witnesses misapprehended Squire Smith’s remark, as stated by himself, than that tlie latter should have made a statement so utterly at variance not only with his sworn testimony, and after, too, he had been subpoenaed to give that very testimony, but with all his previous conduct and his known and acknowledged character as an upright magistrate and a man of probity. 2d. These witnesses do not agree as to Squire Smith’s words, and the same witness varies in each repetition of his statement. Such looseness of recollection may well co-exist with an original misunderstanding. Sd. The testimony of Squire Smith, on the stand under oath, whatever he may have said at any other time, is fully corroborated in every leading and important fact stated, by Messrs. Ki-aft, Philip Nace, Jr., Brandt, and others, who are"unimpeached, and must, therefore, be taken as that of a truthful witness; especially as no corrupt motive, on his part, to falsify, is shown or even suggested. I readily concede, on the other hand, that great respect is due to the knowledge and opinions, on this point, of the daughter and two sons, who have testified against the capacity of their father. Were it necessary, it might be worth while to consider how far the expectation of favour at his hands, in the final disposition of his estate, should he succeed by their aid in getting it again into his own control, may have insensibly influenced their opinions; and such an influence might well be set off against any interest which the son and son-in-law, who testify on the other side, have in upholding this deed; which, after all, only give them such an interest as would be tlxeirs in case of intestacy. It might be profitable, too, to inquire how it was that Tobias Nace, who now alleges his father’s incapacity, was, according to his own testimony, found bargaining with him for the purchase of a portion of his real estate at the very time he now alleges this incapacity to have existed. Also, how it happened that on neither of the two Saturdays, when the old man had gathered his children around him for the very purpose of effecting this arrangement, and when the family was all assembled, and when some of those present were averse to the proposed arrangement, that no one, not even Tobias or Michael, then suggested their father’s incapacity to the scrivener, or among themselves, or to anybody.</p> <p>“ Again, was he non compos mentis also, when, in the spring of 1853, he spoke to Mr. Kaull of a similar disposition of his property, which he then contemplated? Kaull says, positively, that he was not; and the consistency of the act, done with a similar one meditated at a time of acknowledged sanity, is strong evidence that he was not insane at the time he did it.</p> <p>“ And a like argument might be based on the facts of his calling on Squire Smith five or six weeks previously for the same purpose, his returning again at the time appointed, and his intelligent and consistent statement of his plans and wishes then.</p> <p>“ If mad, surely there was method in his madness. So far from the testimony repelling the original presumption in favour of capacity, I think it fortifies and strengthens it.</p> <p>“ But was there any fraud practised or undue influence exerted ?</p> <p>“ 1. As to the fraud. It seems to me, unless we totally reject the evidence of Philip Nace, Kaull, Smith, and Kraft, that this is out of the question. On the contrary, uncommon pains would seem to have been taken that he should fully understand what he was about to do, and its effects; and more than ordinary time for deliberation afforded. As early as the spring preceding, we find him broaching the same plan to Mr. Kaull, who then suggested to him that he had better (to use his own expression) ‘ keep the reins in his own hands.’ The old man, however, persisted, and gave his reasons, which, whether conclusive ot not to the wisdom of the course contemplated, certainly furnished no evidence either of insanity or unfair practice. And it is to be remembered that there is no evidence to show, at that time, any of his sons or sons-in-law had been trying to persuade him to part with his property, or even spoken on the subject. The idea was his own, and the spontaneous product of his own mind; nor, however ill-advised the step, is it one of so uncommon a character or unusual occurrence as to require us, without proof, to presume fraud, circumvention, or unfair practice upon his mind. Whether we may think it wise or unwise for a man to take off his clothes before he is ready to go to bed, we know of many instances in which men, feeling the approach of age with its infirmities, finding memory failing, or physical strength declining, and the cares of business a burthen, have made over their property to their children — reserving a support, and relying on their gratitude and filial duty and affection that such support will be fairly rendered. This forms a good consideration for a conveyance; nor does the subsequent failure of duty on the part of the child, form a ground upon which to avoid the deed, but the grantor must pursue his remedy on his contract or covenants.</p> <p>“In September following, we find him calling on Squire Smith, to procure his services as scrivener to carry out this idea. Owing to sickness in Smith’s family, the matter was postponed; and after a week or two the old man calls again, according to appointment, and arranges for a meeting of the family, together with the scrivener, on the following Saturday. Most of them assemble, and they wait from 1 o’clock until 8 for Tobias, who not coming, the matter is again postponed, and another meeting arranged for the following Saturday. In the meantime, the old man had furnished Smith with his instructions, who took a memorandum of them. On the day of final meeting, Smith testifies that he advised against the measure in the presence of the old man and his children, and afterwards took the old man aside and endeavoured to dissuade him from it — representing the ill effects that might ensue, and referring to difficulties that had arisen in a similar case. The old gentleman, however, was firm in his purpose. The members of the family, too, said he was forgetful, and the arrangement had best be made as he wanted it; and it was made. The old man produced his deeds, sat by the scrivener, and gave him directions. The original memorandum was read over and explained; the deed was read, part by part, as it progressed, and afterwards entire when completed; and its contents, nature, and effect, elaborately explained. This was done again and again, in English and in German. The deed was then executed ; appraisers were sent for; the old man produced his papers, notes, bonds, &e., and an inventory was made.</p> <p>“Now, surely, if we assume that the old gentleman had mind enough to comprehend what was said and done, it would be difficult to imagine what more could have been done to stamp a character of entire fairness on the trairsaction. There was nothing hurried — nothing precipitated: for weeks intervened between the first agitation and the final completion of the matter. The family all notified and assembled, and a postponement of a week in consequence of the absence of the very member of it who now is chiefly relied on to impeach this deed; and the scrivener, the agent by whom this act of fraud on the old man was to have been consummated, and who, I suppose, will not be suspected of complicity, selected, not by the eoncocters, but by the intended victim of the fraud. Surely never was meditated fraud more awkwardly concocted. The general rule is, that a party executing a deed is presumed to know its contents; and where there are no suspicious circumstances to influence it, the rule is that the burthen of proof is on him who seeks to impeach a legal instrument. Here, however, the defendants, if the testimony is believed, have on their part strongly fortified the presumption.</p> <p>“What is there to inspire disbelief? The qualified, and, in some degree, negative testimony of the appraisers (who were only called in late in the day), and of Tobias Hace, who says that he can’t recollect that Smith read or explained the deed in-German; surely, on no principle of the law of evidence, can it be permitted to prevail against the positive testimony of the man who did it, corroborated by the testimony of at least three credible witnesses, one, at least, of whom is beyond all suspicion of interest or bias. If seems to me that the allegation of the bill, that the plaintiff was fraudulently circumvented into signing this deed, in utter ignorance of its contents or effect, is fully disproved by the testimony. The very reason repeatedly given by him for desiring to make this arrangement, to wit, that then he would have no further trouble in taking care of his estate, disproves his present allegation, that he did not know, when he signed the deed, that its effect would be to take the management of his property out of his hands.</p> <p>“But it is said he was persuaded by his sons-in-law, the defendants, to make this deed.</p> <p>“ Suppose he was. Mere pursuasion, unaccompanied by any fraud, deceit, or duress, operating on a mind sui compos, and where there is nothing so unconscionable in the bargain itself as to shock the moral sense, is no ground for avoiding a deed. I grant that, where the bargain is an unconscionable one, such persuasion operating on a mind weak and enfeebled, or depressed, although legally sui compos, will be laid hold of by courts of equity to relieve a party from his own contract.</p> <p>“ But, conceding that the mind of old Philip Hace was weakened for the time, in this sense, by reason of his family difficulties, is there anything in this family arrangement which ought to induce us to desire to avoid it on this ground ?</p> <p>“Was there strong persuasion, in the language of Judge Story, used by those in whom he placed confidence, as there is very great unfairness or inequality in the bargain made ?</p> <p>“ Ho one can read the testimony of Jonas Wenholt, who speaks of the persuasion used at Moyer’s sale, without seeing an evident, although doubtless unconscious, disposition to exaggerate and magnify things in favour of the complainant. He says the way they were working on the old man at the sale, was enough to set a sane man crazy; and yet he did not hear a word of what was said, nor does he know what they were talking about. He saw, but did not hear.</p> <p>“ The language used by Mr. Scholl, after the deed was made, must be interpreted in view of the fact that it was the ebullition of a mind not, perhaps, very fastidious or refined in its conceptions or expressions, and doubtless experiencing a feeling of gratification at the completion of an arrangement deemed necessary or desirable for the interest of all concerned.</p> <p>“ But how is the arrangement an unconscionable one ? It is not a bargain and sale between strangers, but a family arrangement between a father and his children, by which the former, perhaps imprudently anticipating the course of nature, planes in their hands that which, sooner or later, would be theirs at any rate, in consideration of a maintenance and support free from all further worldly care, responsibility, or trouble.</p> <p>“ There is no proof before me, that in this respect the consideration has failed, or that the trustees have neglected or refused to provide for him properly.</p> <p>“Eromthe statements, made on the argument, and the facts appearing in evidence, it is apparent that the income of his estate in the hands of his trustees, will be about $400; amply sufficient for all his reasonable wants and comforts. True, instead of paying the annual income into his own hands, the trustees are to administer and apply it; but they are bound to apply the whole of it for that purpose, if necessary, or required by his wants and necessities; and in case of failure or refusal to do so, chancery would compel them to it. The deed, therefore, does in effect secure to him the entire income, or so much thereof as, in equity and fair dealing, according to the spirit of the instrument, ought to be so applied; and if, in consideration of ease, freedom from care and responsibility, and an easy and comfortable living, he chose, after weeks and months of deliberation, to forego his control over the principal, it was for himself only to measure the advantages with the disadvantages of such a course to himself.</p> <p>“ Neither can I see that this bargain ought to be deemed an unconscionable one, or as furnishing any internal evidence of fraud, because it contains no provision for the benefit of the son, Paul, who is represented as non compos mentis.</p> <p>“ So far as the absence of any provision for his support during the lifetime of his father, is concerned, the law takes sufficient care of that. The 28th section of the Act of 13th of June 1836, makes the parent liable in his estate for the support of a child unable to work or maintain himself. Nor do I suppose that any voluntary conveyance by a father of his estate to trustees, for the exclusive benefit of himself and his family, could divest either him or the estate of that liability. The family arrangement, therefore, leaves the matter just where the law placed it before; and it can only be said, at worst, that the grantor has tied his hands from doing any acts of mere benevolence; which, for his own ease and comfort, his selfish ease and comfort if you please, he had an undoubted right to do; and which he might do, proprio motu, without any fraud or undue influence.</p> <p>“ Then, as- to the absence of any provision giving this imbecile son a larger share than the other children, in the final distribution. He gives to him an equal share with the others; precisely what the law would have assigned to him in case of intestacy. Is this so unusual ? Have we not wills on our own records now, in which an equal share and no more is given by trustees of undoubted capacity to their lunatic children, with no special provision in their favour save providing for the care of the fund in the hands of trustee? Suppose old Philip Nace were now dead, having made his will, giving this son only an equal share with his other children. Would any one be heard who sought to impeach his will on this ground ? Surely not. On an issue of devisavit vel non, would it weigh a feather with a jury ? It may be that such a child, being more helpless, may stand in need of a larger share, and such a consideration, operating on a parent’s mind, would fully warrant and justify such a discrimination in his favour. But must a man make it, on peril of having his will set aside ? It is sometimes said that the law makes the best will. Shall a man’s sanity or competency to make a will be impeached because he has not undertaken to be wiser than the law itself?</p> <p>“ On the whole, after the most careful consideration I have been able to give the evidence in this case, I am of opinion that it fails to establish the allegations of the bill, or furnish any ground for the interposition of a court of equity.</p> <p>“ Was there any oppression ? On the contrary, he was left free to act, and he took his own time for it.</p> <p>“ Was there any fraudulent advantage taken or imposition practised ? So far from it, that everything was done that could be done to possess him fully with the nature and consequences of the act he was about to do.</p> <p>“ Was proper time afforded ? Surely so, if weeks and months are sufficient.</p> <p>“ Did he act improvidently ? No; for he was cautioned, advised, and fully informed.</p> <p>“Was he importunately pressed? The evidence is very slight to show that he was pressed at all; certainly not very importunately. In fact, he conceived and meditated this very step before there is any evidence that he was pressed at all by any one.</p> <p>“Was he suddenly drawn to act, without being aware of the consequences, or having an opportunity to consult counsel or friends ? On the contrary, he took his own time to act, and consulted with whom he pleased, and had the benefit of the advice of disinterested persons whom he did consult.</p> <p>“ Was he of disposing mind and memory ? The preponderance of the evidence is that he was.</p> <p>“ I cannot, therefore, grant the complainant the relief the bill seeks; but the same is refused, and the prayer of the bill disallowed.”</p> <p>Erom this decree the complainant appealed; and, after argument in this court, at January Term 1857, by Krause and Boyd, for the appellant, and by Boyer and Chain, for the appellees, the following order was made:—</p> <p>Lowbie, J. — One of the four judges of this court who heard this cause, having resigned before we had finished our consultations upon it, and the case being somewhat strange in its features, we think it proper that it should be argued again. There is another reason for taking this course. The equitable owners of the property, under the deed sought to be set aside, are necessary parties to the suit, and it is not sufficient to make the trustees defendants. It is, therefore, impossible for us to decide the case on the merits. It is plain enough that all the real parties have been represented under the name of the trustees, but this is not sufficient; they must be parties on the record. Those who are interested only as creditors are properly represented by the trustees, but the equitable owners are not.</p> <p>Considering that proceedings in this form are yet quite unusual in some parts of the state, and that all the testimony has been taken, and the other proceedings had, as if the beneficiaries were parties, we have concluded that we are not bound to follow the usual equity practice, and dismiss this bill for the defect specified, but that we may grant an indulgence, even at this late stage of the case, that will enable the plaintiffs to amend, by making the cestuis que trust parties, plaintiffs or defendants.</p> <p>This can be done by amendment of the bill, and, if necessary, a new subpoena for the new parties. It will Save much expense and trouble, if they will agree that the old testimony stand, and they can add what they think necessary. Then the cause having been decided again by the Common Pleas, will be ready for review by us. In order that the case may be corrected, as well as the parties are able, we reverse the decree.</p> <p>The decree of the Common Pleas is reversed, and the record remitted for amendment, by making the cestuis que trust parties, and for further proceedings.</p> <p>When the cause came back into the Common Pleas, that court, on the 9th October 1857, upon application of the complainant, allowed the bill to be amended by making all the cestuis que trust parties defendants; and also by the complainant charging in more direct and explicit terms, “that just before and at the time it is alleged that he executed said deed or instrument of writing, he was not in a state of mind to do so; but was, by reason of trouble and other causes, over which he had no control, wholly unfit to execute such instrument; and was, as he is informed and believes, at the time, labouring under partial, if not entire insanity; but had, at the time of filing said bill, entirely recovered.”</p> <p>The cestuis que trust were all regularly brought in, and answered the bill; two of them, Tobias and Michael Nace, asking the court to decree in favour of the complainant, and the. others opposing such a decree, and denying the material allegations of the bill. Some additional testimony was taken on both sides; and on the 3d December 1857, the case came on again for hearing, in the court below; when it was decreed that the complainant’s prayer for relief be refused, and the bill dismissed; the costs to be paid by the trustees out of the estate. From this last decree the complainant again appealed to this court.</p>

This was an action of assumpsit by Benjamin H. Guldin against George H. Stickter, to recover back $150 paid by the plaintiff to the* defendant on a parol contract for the purchase of a house and lot in the borough of Pottsville. There was a verdict and judgment for the plaintiff below for $204.40; to reverse which the defendant sued out this writ.

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action of covenant, by Peter Voorhees, Benjamin Marlatt, George Fielder, and Abijah Mount, trading as Voorhees, Marlatt & Co., against William Reybold. The case was tried on the 81st of December 1856, before Knox, J., and resulted in a verdict for the plaintiffs for $1520.20; upon which judgment was entered.</p> <p>It appeared on the trial that, on the 4th of August 1854, the parties entered into the following agreement; — ■</p> <p>“ An article of agreement made, this fourth day of August, A. D. 1854, between William Reybold, of the county of New Castle, and state of Delaware, of the first part, and Peter Voorhees, Benjamin Marlatt & Co., of the state of New Jersey, of the second part, doth covenant and agree with the said William Reybold for all the peaches growing on his two farms in said county; and said Voorhees, Marlatt & Co., doth agree to find baskets to put said peaches in, and pay him seventy-five cents per basket for said peaches, picked, assorted, and delivered at Delaware city, in good merchantable order, at his own proper cost and expense, or as the said Peter Voorhees or his agent may require; said peaches to be paid for at the end of each week, as delivered at Delaware city.”</p> <p>On the same day $500 was paid to the defendant, as security for the faithful performance of the agreement, and the following receipt was given by the defendant’s agent:—</p> <p>“Aug. 4, 1854. Received from Voorhees, Marlatt & Co., five hundred dollars, on account of peach orchard, as per contract to be executed. Anthony Reybold, for William Reybold.”</p> <p>On the following morning, which was Saturday, the defendant delivered his peaches to the plaintiffs, but was requested to take them back again for that day, and not to begin to deliver them, under his contract, until the following Monday, which he did. And, on Monday, the 7th of August, he commenced to deliver his peaches on the wharf, at Delaware City, in accordance with his agreement, and delivered them to the end of the week; but, at the end of that time, neither the plaintiffs, nor any one on their behalf, appeared at Delaware City, to pay the defendant, who was there in waiting. Nor did any one of the plaintiffs, or any one for them, appear at Delaware City, to make payment on the following Monday, on which day the defendant shipped his peaches to them as usual.</p> <p>On Tuesday, the defendant, not having been paid, or received any communication from the plaintiffs, and the peaches already delivered amounting to the sum of $539.25, stopped sending them his peaches, and shipped them to his agent in Philadelphia, to be sold on his own account. And, on the afternoon of the same day, the plaintiffs having ascertained that fact, went to Delaware City, and tried to induce the defendant to continue sending his peaches to them; which he refused to do, alleging that they had broken their contract, and had endeavoured to overreach him. They did not, however, offer to pay for the peaches already delivered, and permit the original security to remain. They subsequently paid the balance of $39.25 due to the defendant.</p> <p>The defendant’s counsel submitted the following points, and requested the court to charge the jury as follows:—</p> <p>1. If they believe the $500, for which a receipt was given on the 4th of August 1854, was received as security, and not as payment in advance, then it was the duty of plaintiffs, under the contract, to have paid for the peaches they had received during the first week, at the end of the first week.</p> <p>2. If the jury believe that the $500 was a deposit as security, it was plaintiffs’ duty to have paid for the peaches delivered at the end of the first week; and, not having done this, defendant was at liberty to regard the contract as at an end, and to dispose of his peaches thereafter at his discretion.</p> <p>3. The written contract of August having specified the place for the delivery of the peaches, the place where payment therefor was to be- made to defendant was also specified, to wit: Delaware City, where the. plaintiffs should have attended, by themselves or agents, at the end of the week, for the purpose of making payment.</p> <p>4. The written contract of August the 4th having fixed the place for the delivery of the peaches, as well as for the payments to be made by plaintiffs — if the jury believe that plaintiffs voluntarily absented themselves from Delaware City at .the end of the first week, and thereby defaulted in payment, defendant was discharged from any obligation to continue to supply the peaches.</p> <p>5. That it was incumbent on plaintiffs to show that one of them, or their agent, was at Delaware City on the day agreed on for the first payment under the contract, ready to make the same, and that defendant was not ready and willing to receive the same.</p> <p>The court (Knox, J.,) delivered the following charge to the jury: — “ The first question of fact for you to decide is — How was the $500 paid? Was it paid in'advance, to apply upon the contract, as payment for the peaches when delivered? If it was, then there was no failure on the part of the plaintiff, as the peaches delivered up to Saturday, the 13th of August, amounted to less than $500, and the next payment would not fall due until the 19th of August. But if the $500 were to remain as security until the end of the delivery of the peaches, then the question arises, whether the failure to pay on Saturday, the 12th, authorized the defendant to rescind the contract ? Upon this point the jury are instructed — That where a contract is made to deliver perishable articles from day to day, at a particular place, to be paid for at the place of delivery at the end of each week; upon failure by the purchaser to make the payment at the time agreed upon, the seller is not bound to deliver any more until payment is made or offered to be made; and, if this payment or offer is delayed beyond a reasonable time, taking into view the nature of the article, the seller may rescind the contract. What would be a reasonable time, would ordinarily be a question of fact for the jury, but the time may be so long as to justify the conclusion as matter of law, that it was unreasonable, or it might be so short, that in law the delay would not be unreasonable; and to apply the principle to the case in hand, the jury are further instructed, that if they find from the evidence that the plaintiffs were not present on Saturday, the 12th, to make the payment for the peaches delivered up to that day inclusive, that the defendant delivered peaches under the contract on Monday, the 14fch, and that on Tuesday, the 15th, the plaintiff was ready and willing to perform the contract on his part, and did offer to perform, by paying for all the peaches delivered up to Saturday, the 12th, inclusive, and to leave the $500 to remain, as originally agreed upon, as security, and the defendant refused to deliver the peaches under the contract — he is responsible for the damages sustained by the plaintiffs in consequence of the defendant’s non-compliance with the contract.</p> <p>“ But if the plaintiffs did not, on Tuesday the 15th, or Wednesday the 16th, offer to pay for the week’s peaches, and leave the security as originally agreed upon (if such was the agreement), or if this offer in terms was not dispensed with by the positive refusal of the defendant to go on with the contract, his neglect to do so, at that time, would justify the defendant in refusing to deliver the remainder of the peaches, as further delay would be fatal to the plaintiffs’ right to call for performance on the part of the defendant.</p> <p>“ The defendant’s first point affirmed. The second, third, fourth, and fifth, are in substance negatived by the instructions given. To which is added: — That a strict performance, according to the letter, required payment at the end of the week; but non-payment on that day, would not of itself justify the rescission of the contract by the defendant. But his right to do so, depends on what took place on Tuesday and Wednesday between the parties, already referred to.</p> <p>“ The measure of damages is the actual injury sustained, and that is to be ascertained by determining what the peaches were actually worth per basket, at Delaware City, at the time they were to be delivered by the contract; and if this exceeds the contract price, the excess is to be multiplied by the number of baskets which the two farms produced, and which were not delivered, and the gross sum will be the loss sustained.</p> <p>“ In determining the actual value of the peaches at Delaware City, the jury will recollect that the plaintiff was to furnish his own baskets; and they will also take into consideration the evidence of what the peaches were sold for at Delaware City, after the 14th, during the season, also, what they were-selling for in the market of New York, Philadelphia, and other places named by the witnesses; and also the quality of the peaches which formed the subject-matter of the contract.”</p> <p>This charge was excepted to by the defendants’ counsel; and the same was here' assigned for error.</p>

Appeals from the District Court of Philadelphia. These were appeals by Charles Norris and Harvey Terry, from the decree of the District Court, distributing the proceeds of a sheriff’s sale of the real estate of William Conaway. The auditor appointed to report distribution of the fund, reported that the ground sold by the sheriff was conveyed to William Conaway, the defendant, in two parcels, one of them on the 1st January 1852, and the other on the 17th February 1853.

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias upon an apportioned mechanics’ claim, by Samuel Forder against William Kooekogey, owner or reputed owner and contractor, and Clement A. Wilson, terre tenant.</p> <p>The claim was filed on the 11th February 1855, against six houses upon Eleventh street above Master street, in the city of Philadelphia, for plastering and materials, alleged to have been done and furnished under and by virtue of a special contract, for a stipulated sum, to wit, the sum of $1110, made by the said Samuel Forder with William Kooekogey, for the erection, construction, and finishing of said houses; and which was done and furnished, in pursuance of the said contract, between the 4th November 1858 and the 11th August 1854.</p> <p>Kooekogey, the builder, suffered judgment to go against him by default. But Wilson, the terre tenant pleaded, inter alia, that the said materials and labour were not furnished and done in and upon the said houses upon a special contract; and, upon this, issue was taken.</p> <p>It appeared .on the trial, that, in 1853, William Kooekogey commenced the erection of the six contiguous three-story brick dwelling-houses, against which the claim was filed. And that, in the spring of 1854, this row of houses was completed and put into the market, and all of them sold by William Koockogey, at private sale, as finished houses. The conveyance to Wilson was on the 21st June 1854.</p> <p>It was also shown that the plaintiff had done some plastering on one of the houses, but on which of them, did not appear; nor was there any evidence that this work was done under the alleged contract. After the plaintiff had rested his cause, the defendants’ counsel moved for a nonsuit, under the Act of Assembly; which the court refused to order, but reserved for the consideration of the court in banc, the point — “ Whether there was evidence for the jury of the existence of the contract alleged in the claim and denied in the plea ?”</p>

This was an ejectment, by Alexander F. Glass, Samuel Shober, Frederick Shober, William Roberts, and James Cummings, against John McBarron, Jacob Eisenhuth, James Taggart, and Wayne Myers, for a tract of land in Rush township, Schuylkill county, containing 412 acres 91 perches.

This was an action of assumpsit by The Girard Bank against Henry Heil, upon a draft, or bill of exchange, drawn by the defendant upon Henry K. Strong, of Philadelphia, for $1500, dated Tremont, November 1st, 1856, payable to the order of the defendant, at three months, accepted by Strong, endorsed by the defendant, and discounted by the Lancaster Bank for the firm of Heil & Hammer.

This was an action of assumpsit, by Henry C. Baird against John W. Moore, to recover the amount of the defendant’s promissory note for $371.46, dated the 28th March 1857, .and payable four months after date to the order of William White Smith, who endorsed it to the plaintiff.

<p>Error to the Common Pleas of Warren county.</p> <p>These were two actions of assumpsit, the one by Blake, Howe & Co. against Thomas Struthers, and the other by Thomas W. Pierce against the same defendant, as endorser of two bills of exchange. The case of Pierce v. Struthers was previously before this court, and is reported in 8 Casey 249. The following is a copy of the bills on which these suits were brought, both being of the same date, amount and tenor:—</p> <p>“ |5000. New York, Eeb. 23, 1854.</p> <p>“ Four months after date, pay to the order of Tilden & Co., five thousand dollars, value received, and charge to account of</p> <p>Edward Hazen.</p> <p>“ To Jas. T. Foster, Esq., 78 Beaver St., H. Y.</p> <p>Accepted by J. T. Foster.</p> <p>Endorsed Tilden & Co., Attica, W. Y.</p> <p>T. Struthers, Warren, Warren Co., Pa.</p> <p>W. A. Irvine, Warren, Warren Co., Pa.</p> <p>Wm. Whitnev & Co., Boston.”</p> <p>These bills were drawn, accepted, and endorsed by the first three endorsers in the city of New York, the parties all being present at the same time; they were then left in the possession of Tilden & Co., and by them negotiated. The memorandum of the residence of the endorsers was placed on the bills by some person after they had been negotiated; when, and by whom, did not appear.</p> <p>At the maturity of the bills, they were placed in the hands of a notary, in New York, who presented them for payment at Ho. 78 Beaver street, on the 26th June 1854, and on the same day, protested them for non-payment. On the morning of the following day he deposited notices of non-payment in the post office, addressed to the respective endorsers, at the places designated on the back of the bills. A notice for Hazen, the drawer, was enclosed to Tilden & Co.</p> <p>It was shown that Foster, the acceptor, never had a place of business at Ho. 78 Beaver street, New York, which was the office of the Horth Carolina Copper Company, where he occasionally called; his place of residence was at Greenbush, opposite Albany, New York.</p> <p>Tilden & Co. had no place of business in Attica, New York, after the spring of 1854, and neither of the firm resided there. The firm was composed of Bryan P. Tilden, who resided in Boston, and David Young, who resided in Roxbury, Massachusetts. When the bills matured, Hazen, the drawer, resided in Oberlin, Ohio, and had done so for several years. No notices for either the drawer or prior endorsers were sent to Struthers or to Irvine.</p> <p>In the case of Blake v. Struthers, the plaintiffs offered in evidence a copy of the notary’s protest, attached to his deposition, and proved by him. This was admitted by the court, and the defendant excepted. In Pierce’s case evidence was given of a custom to notify the endorsers of a bill, when their residence was written on it, otherwise to enclose notices for them to the last endorser.</p> <p>The court below (Derickson, J.,) in answer to numerous points presented by the plaintiffs and defendant, charged the jury: 1. That it was sufficient, in order to charge the endorsers, that payment was demanded at the place designated on the bill, No. 78 Beaver street, New York. 2. That it was immaterial when the alleged places of residence of the endorsers were placed on the bill, as the plaintiffs were not required to notify them, unless they intended to hold them responsible as endorsers. If notice was given to the defendant, and he wished to hold the prior parties liable, it was his business to give them notice. 3. That the act 21st May 1857, had no effect on these bills. 4. That the possession of the bill by Pierce, in the absence of all evidence that he was not a bond fide holder, was sufficient title to enable him to recover.</p> <p>To this instruction the defendant excepted; and verdicts having been rendered for the plaintiffs, and judgment entered thereon, he removed the cases to this court, and here assigned for error: 1. The admission of the evidence excepted to. 2. The charge of the court below, in answer to the points presented.</p>

<p>Where a person endorses an overdue note, he is entitled to notice of demand and non-payment, as much as if it had been endorsed before maturity. It is the duty of the endorsee to present such note to the maker for payment, within a reasonable time, and in case of non-payment, immediately to give notice to the endorser.</p>

These were two actions of assumpsit, the one brought by Crissy & Markley, and the other by Peter L. Laguerenne, against Charles Roth, to recover back the amount of two promissory notes, one of them made by William H. Fleming, and purporting to have been endorsed by William H. Richards; and the other purporting to have been made by Richards, and endorsed by Fleming; which had been purchased by the plaintiffs from the defendant. -The signature of Richards upon these notes…

<p>This was an application for a charter of incorporation, under the provisions of the Act of 6th April 1791: Brightly’s JPurd. 164.</p>

<p>’ A charter for a mining company, desirous of being incorporated under the Act 21st April 1854, should set forth that the parties are in possession of mineral lands, and give a description of them. They should also produce evidence of the truth of such allegations.</p> <p>The Supreme Court have nothing to do with, the allowance of charters, in such cases.</p>

<p>This was an application for a charter of incorporation, under the provisions of the Act 6th April 1791: Brightly’s Purd. 164.</p>

<p>This was an application for a charter of incorporation, under the provisions of the Act of 6th-April 1791: Brightly's Purd. 164.</p>

<p>This was an application for a charter of incorporation, under the provisions of the Act of 8th April 1838: Brightly’s Purd.</p>

This was a proceeding to view and lay out a public road in Uwchlan township. The proceedings were commenced on the 1st August 1855, and after four different views, re-reviewers reported a road from Hartman’s Mill on the west Pikeland Line road, to a corner of Bingaman and Vickers, on the West Chester and Yellow Springs road. This report was read and confirmed nisi, on the 28th July 1856, and the road was ordered to be recorded and opened 83 feet wide.

In the court below, this was an action of covenant, by Samuel M. Creswell against Robert Rancel, wherein the parties stated the following case for the opinion of the court, to be considered in the nature of a special verdict. “ James Ross Creswell, late of the township of West Nantmeal, in the county of Chester, deceased, being seised in his demesne as of fee, of the plantation and tract of land hereinafter mentioned, by his last will and testament, dated the 25th day of…

This was an amicable action of debt, by Jonas Chamberlain against John Criley, in which the parties agreed upon the following statement of facts, to be considered in the nature of a special verdict, and subject to a writ of error. • John Chamberlain, of Sadsbury township, in said county, being seised in fee of the premises hereinafter mentioned, by his last will and testament, dated September 30th, 1854, and codicil thereto, dated October 25th, 1854, and proven April 19th,…

This was an appeal by Robert T. Potts, Lewis Cooper, and William L. Schaffer, Jr., trustees under the will of William Lehman, deceased, from the decree of the Orphans’ Court, distributing the personal property belonging to the trust estate among the devisees of the testator.

<p>Error, to the Common Pleas of Chester county.</p> <p>This was an amicable action of ejectment, by Lewis Anna Pearce, a minor, by her guardian, Azariah Thomas, against Matthew Barker, guardian of Walter Sloan Pearce, for the undivided half of a messuage, plantation, and tract of land, with lots of woodland adjoining, situate in the townships of East Whiteland, West Whiteland, and Charlestown, in the county of Chester.</p> <p>The parties agreed upon a case stated, to be considered in the nature of a special verdict, and subject to a writ of error; from which the following facts appeared.</p> <p>Cromwell Pearce, of East Whiteland township, Chester county, by his last will and testament, proven 13th April 1852, devised, inter alia, as follows:</p> <p>“ I give, devise, and bequeath to my son, Lewis Gr. Pearce, for and during the term of his natural life, all that messuage, plantation, and tract of land, with lots of woodland adjoining, situate and lying in the townships of East and West Whiteland and Charlestown, being three separate tracts, which were conveyed to me during my lifetime, containing in all one hundred and ninety-four acres and one hundred and thirty-six perches, bounded and described as follows, (describing the lands.)</p> <p>“ Item. If my said son Lewis shall, at his death, leave a child or children born in, lawful wedlock, I do hereby give, devise, and bequeath to such child or children, all of the remainder of the above described real estate to them, or it, his, her, or their heirs and assigns for ever, in fee simple. But in case, as I suppose, my son Lewis should die without leaving a child or.children born in lawful wedlock, then I make the following disposition of the aforesaid real estate, containing one hundred and ninety-four acres and one hundred and thirty-six perches,” (devising the same over.)</p> <p>The said Lewis Gr. Pearce married, after the death of his father, the above testator, and died November 14th, 1855, leaving a child, the above-named Walter Sloan Pearce, who was born in lawful wedlock, February 5th, 1854, and leaving his wife enceinte with a child, the above-named Lewis Anna Pearce, who was born January 21st, 1856, after the death of her father.</p> <p>Matthew Barker was appointed guardian of the said Walter Sloan Pearce, December 11th, 1855, and as such, took charge of the entire real estate devised by said will, before the birth of the said Lewis Anna Pearce, and still, by his tenants, has possession of the same.</p> <p>Azariah Thomas was appointed guardian of the said Lewis Anna Pearce, June 9th, 1856.</p> <p>The question for the opinion of the court is, whether, under the will of Cromwell Pearce, the said Lewis Anna Pearce is entitled to the undivided half of the premises mentioned in the above-recited devise. If the court should be of opinion with the plaintiff, judgment to be entered in her favour for the premises claimed in this action.</p> <p>If otherwise, judgment to be entered for the defendant.</p> <p>The court below gave judgment for the plaintiff on the case stated, which was here assigned for error.</p>

<p>Appeal from tbe Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Rachel K. Letchworth and Mary Knight, from the decree of the Orphans’ Court, distributing the estate of Jonathan P. Knight, deceased, in the hands of his executors.</p> <p>The testator, Jonathan P. Knight, died in 1841, leaving him surviving, a widow, Alice, and three daughters, namely, Anna, Rachel, and Mary. His will was duly admitted to probate, and letters testamentary were issued thereupon to William Kinsey and William Hilles, the executors named therein.</p> <p>The widow died in 1844, leaving her surviving the three daughters. Anna, the eldest daughter, intermarried in 1847 with Thomas Thorpe, the appellee, and, having survived her issue, died in September 1849; and Rachel, another daughter, subsequently intermarried with John Letchworth. Mary, the youngest child, arrived at the age of twenty-one years on the 2d of January 1856.</p> <p>The executors, by virtue of a power contained in the will, sold the real estate of the testator, and invested the proceeds in bonds and mortgages; and filed a final account, in which they charged themselves with a balance for distribution.</p> <p>That portion of the will of the testator which controls the distribution of his estate, is in these words, viz.: “ Item. At and after the decease of my said wife, and in case she should marry, and when my youngest child shall arrive at the age of twenty-one years, then it is my will that all my estate shall be distributed by my executors, agreeably to the intestate laws of this Commonwealth ; provided always, nevertheless, that in case all my said children shall die, without leaving lawful issue, during the lifetime of my said wife, then, and in such case, I give, devise, and- bequeath to my said wife all my estate, real, personal, and mixed, to her and her heirs and assigns for ever.”</p> <p>Upon the settlement of the account of the executors of this will, it was claimed, on behalf of the present appellants, that the interest of the testator’s children in his estate was a contingent one, which could not become vested until the arrival of the youngest child at the age of twenty-one years, viz.: on the 2d of January 1856, and that Anna, having died long before that time, without leaving any issue her surviving, had no interest which was transmissible to her administrator.</p> <p>The auditor decided in favour of this claim, and awarded the whole fund to be equally divided between the two appellants, they being the only surviving children of testator.</p> <p>The Orphans’ Court, regarding the interest of,the testator’s children in his estate as a vested one, reversed the decision of the auditor, and decreed that the administrator of the deceased daughter was entitled to one-third of the estate.</p> <p>From this decree the present appeal was taken.</p>

This was an appeal by Mary A. Lipman, Hyman L. Lipman, James Maull, Jr., and Louisa E. Maull his wife, and Anna E. Lehman, from the decree of the Orphans’ Court, distributing the trust funds in the hands of William Crean, trustee under the will of Mary C. Lehman, deceased.

This was an action of trover, brought in the court below, by William T. Rogers and Paul Applebach, assignees of William Beek, against Philip Gilinger, Samuel Groff, Matthew H. Crawford, and Henry C. Hill; in which the parties agreed upon the following statement of facts, to be submitted for the opinion of the court, and considered in the nature of a special verdict.

<p>A defendant may plead a former recovery for the same cause of action, although judgment was entered up in the first suit after the institution of the second.</p> <p>In assumpsit, a former recovery may be given in evidence under the general issue, with the same effect as if specially pleaded.</p> <p>Whether the former suit was for the same cause of action is a question of law for the court, determinable only by the pleadings.</p> <p>In an action of assumpsit on a due bill given for whatever amount of incumbrances might be found against a tract of land conveyed by defendant to the plaintiff, a judgment for the defendant in a former action on the case, between the same parties, for a deceit practised by the defendant in representing himself as the owner of the said tract, and inducing the plaintiff to exchange valuable property for it, when in fact he was not the owner of it, and his title thereto was valueless to the plaintiff, is not a bar to the plaintiff’s recovery, although the due bill was given in evidence in the former action.</p>

This action was originally brought before an alderman, by John Caffrey against Gustavus G. Logan, to recover the sum of $67.25, for his wages as a day labourer, viz.: for 67J days’ work between the 7th of November 1854, and the 5th of February 1855, at one dollar per day. The alderman gave judgment for the plaintiff, from which the defendant appealed.

<p>Error to the Common Pleas of Wayne county.</p> <p>This was an action of assumpsit, originally brought before a justice of the peace, by Austin Welton, against Charles L. E. Wolf, in which the parties submitted the following case stated for the opinion of the court; with liberty to either party to take a writ of error:—</p> <p>“Austin Welton and T. Win. Reffert were partners in the chair and pump business, in Honesdale, and on the 28th June 1852, Welton sold out to Reffert, and a paper of which the following is a copy was executed:—</p> <p>“ ‘ Memorandum of agreement made this 28th day of June 1852, by and between Austin Welton, of the borough of Honesdale, of one part, and T. Wm. Reffert of the same place, of the other part — Witnesseth: The party of the 1st part sells to the 2d part all his interest in the cabinetmaking business and chair and pump business in said borough, and all his claims in the stock and tools of the firm of Welton & Reffert, for one hundred and fifty dollars, to be paid in one year from the 1st day of July 1852, with interest from this date, without defalcation or stay of execution, and the party of the 2d part hereby agrees to pay the party of the 1st part the above .one hundred and fifty dollars as above stated. He also agrees to pay all the debts of the firm of Welton & Reffert, and keep said Welton free from any and all costs and damages in the settlement of the same. To the faithful performance of the above, we bind ourselves, our heirs, executors, administrators, and assigns firmly by these presents. Signed, sealed, and delivered the day and year above written.</p> <p>‘ Austin Welton. [Seal.]</p> <p>‘T. Wm. Reeeert. [Seal.]</p> <p>“ ‘Witness — F. Drake.’</p> <p>“ At the date of the above agreement, C. L. E. Wolf, defendant, became security for Reffert’s performance of this part of contract in writing, as follows:—</p> <p>“ ‘I do hereby agree to and with Austin Welton, that I will be security for the true and faithful performance of the above agreement on part of T. Wm. Reffert, as above written. June 28,1852.</p> <p>‘ Charles L. E. Wole.</p> <p>“ ‘Witness — F. Drake.’</p> <p>“There were several debts owed by Welton & Reffert at the time of the dissolution, and suits were brought before Justice Farnham against Welton & Reffert, and judgments obtained, in one case for $23.39, and in another case for about $10.</p> <p>“Welton then brought suits against Wolf on his above obligation of surety, and obtained two judgments before Justice Farnham for each of the above judgments against Welton & Reffert, which said judgments have been paid by said Wolf, without appeal.</p> <p>“ Subsequently a suit was brought by E. Gr. Reed against Welton & Reffert, and judgment rendered by the justice for $100, which remains unpaid and unappealed.</p> <p>“Welton then brought suit against Wolf, on the above agreement, as surety pf Reffert, and Wolf claimed that the former suits or suit by Welton against him on said agreement was a bar to this suit, which plea the justice sustained, and rendered judgment for defendant.</p> <p>“It is agreed that the suits of Welton against Wolf, above referred to, were all based upon the above-recited agreement of security for Reffert.</p> <p>“If the court are of opinion that the plaintiff is entitled to recover, then judgment to be entered for the amount of the claim before the justice, on this appeal; and if not, then judgment to be entered in favour of the defendant.”</p> <p>The court below gave judgment for the plaintiff, on the case stated, for $100 and costs, which was here assigned for error.</p>

<p>A contract to guaranty the payment of the rent reserved in a lease, is not discharged by the lessor’s consent to an assignment of the term; the lease providing that no assignment shall be valid without such consent.</p> <p>A contract of guaranty creates only a contingent liability, which becomes absolute by due and unsuccessful diligence to obtain satisfaction from the principal, or by circumstances that excuse diligence.</p> <p>Legal diligence is proved when the plaintiff shows that he has pursued the ordinary process of the law to its end, without improper delay.</p> <p>Quere, whether it be sufficient to show the issuing of ay?, fa. against the principal, and a return of nulla bona, after the commencement of the suit against the guarantor ?</p> <p>Such an objection is pi'operly pleaded in abatement of the writ, and not in bar of the right. If apparent on the face of the record, it amounts but to a discrepancy between the writ and the declaration, of which a court of error will take no notice, after a verdict on the merits.</p>

<p>On a transfer of certain shares of railroad, stock, the assignor guarantied “ that the said stock shall yield annually six per cent, dividends for the space of three yearsHeld, that this was a guaranty that the stock was equal in value to one yielding an annual dividend of six per cent., and not merely that the assignee should receive six per cent, annually for three years on the par value of the stock.</p> <p>In an action on such guaranty, the measure of damages is the difference between the actual value of the stock transferred, and one that would yield six per cent, dividends for the ensuing three years.</p>

<p>A promise to pay the debt of another must be proved by evidence that is clear, explicit, and certain, leaving no room for doubt or -misapprehension.</p> <p>Quere, whether a promise by one partner that the firm will pay the debt of another, is binding on his copartners ?</p>

<p>Where a testatrix requested another to sign a paper as her will, and he complied by signing “E. N., for K. D., at her request;” this .is a sufficient execution of the will.</p> <p>What constitutes sufficient proof of the execution of a will is a matter of law for the court.</p> <p>Where a will is attested by two witnesses, if the memory'of one of them is defective as to the circumstances attending its execution, the law presumes, after proof of attestation, the existence of everything else- necessary to give the instrument validity.</p> <p>The rule is different if the witness is able to recollect that things essential were positively wanting. There the presumption is changed.</p> <p>Where the execution of a will is proved, it is not necessary to give evidence that the testatrix knew the contents of it.</p> <p>Such evidence is only required where fraud, practice, or undue influence is charged and proved.</p>

This was an amicable action of covenant by Levi T. Quick, surviving executor of Henry C. Middaugh, deceased, against Elijah Rose, to recover ‘the unpaid purchase-money of certain real estate of the alleged testator, which the defendant had contracted to purchase from the executors.

<p>Appeal in Equity from the Common Pleas of Schuylkill county.</p> <p>This was a bill in equity by Francis W. Hughes against Jacob Kline, Andrew H. Wilson, and Paul Lengel, county commissioners, and Samuel K. M. Kepner, treasurer of the county of Schuylkill, to restrain the sale of certain lands of the complainant for unpaid taxes for the years 1850, 1851, and 1852.</p> <p>The bill set forth that the complainant was the part owner of four tracts of land in Schuylkill county, known as “ The Valley Furnace lands,” which he purchased from Joseph S. Silver, on the 7th March 1853, for $48,750. That the said lands were assessed, at the triennial assessment of 1850, at the sum of $37,000. That notice of said valuation and of appeal were given to the then owners according to law; who acquiesced in the assessment, and did not attend the appeal. That afterwards, the commissioners raised the aggregate valuation of the said lands to $76,000; and that the state and county and the road and school taxes for the years 1850,1851, and 1852 were assessed upon this valuation; thus greatly increasing the amount of taxes to be paid by the complainant ; and that the taxes so assessed were imposed contrary to law. That these lands were advertised to be sold for the said taxes on the second Monday of June 1856; and praying that the defendants might be enjoined from making sale thereof.</p> <p>The respondents in their answer claimed the right to raise the valuation of the lands; which they averred was not fixed at the time of appeal, but was postponed until after the time of holding the township appeals. They set forth that, during their tour through the county, the commissioners ascertained that the lands in question had not been assessed at more than one-half of their cash value, and that, in accordance with law, and to equalize the county burdens, they had raised the valuation as stated in the bill. That the owners of the land had notice of the increased valuation, and appealed therefrom to the Court of Common Pleas, under the provisions of the 7th section of the Act of 26th April 1850 {Pamph. L. 627), alleging that the commissioners, in raising the valuation of the lands, had exceeded their powers, and that the assessment was unreasonable and too high. That the appeal was heard and dismissed, and the assessment sustained. That afterwards the case was removed to the Supreme Court, reversed, and the appeal reinstated. (See 8 Harris 369.) That the case was again heard, before the Hon. Jambs Burnside, at a special court held for the county of Schuylkill, on the 19th March 1855; and that the assessment so made by the commissioners, was affirmed by the court; which judgment; remains unreversed and in full force.</p> <p>The case was heard on bill and answer, before the Hon. J. Pringle Jones, at a special Court of Common Pleas, held for the county of Schuylkill, on the 5th June 1856; when an injunction was granted to restrain all proceedings for the sale of the lands in. question, for the taxes of 1850,1851, and 1852, as prayed in the bill. From this decree the defendants appealed to this court.</p>

This was an amicable action by the West Chester Gas Company against the County of Chester, in which the parties agreed upon the following case stated:— “ It is agreed that an amicable action in the above form be entered in the Common Pleas of Chester county, and the following statement of facts, to be considered in the nature of a special’verdict, be submitted for the opinion of the court.

<p>When a railroad company undertakes the transportation of a passenger for an agreed price, the contract implies that they are provided with a safe and sufficient railroad to the point indicated; that their cars are staunch and roadworthy; that means have been taken beforehand to guard against every apparent danger that may beset the passenger; and that the servants in charge are tried, sober, competent men.</p> <p>When, in the performance of this contract, a passenger is injured, without fault on his part, the law raises, primd facie, a presumption of negligence, and throws on the company the onus of showing it did not exist. í%This legal presumption may be repelled by proving that the injury resulted from inevitable accident, or that it was caused by something against which no human foresight and prudence could provide.</p> <p>Whether such circumstances exist as will repel the legal presumption of negligence, is a question of fact to be determined by the jury, from all the evidence in the case.</p> <p>That a car was thrown off the track by running over a cow, that was unlawfully.on the road, and the passenger thereby injured, is not, in itself, sufficient to repel the presumption of negligence. The company are bound to make provision against such accidents.</p>

This was an action of assumpsit by Isaiah P. Goldey against The Pennsylvania Railroad Company, as common carriers, for the non-delivery of certain horses shipped from Pittsburgh to Philadelphia, in February 1854. On the trial of the cause, before Woodward, J., it appeared, that on Monday, the 6th February 1854, the plaintiff, with several other drovers, presented himself at the freight office of the defendants, in Pittsburgh, to ship a number of horses to Philadelphia.

<p>Where goods have been carried to their place of destination and there deposited in the carrier’s warehouse, to await the owner’s convenience in taking them away, the carriers are only subject, in respect to such goods, to the responsibilities of warehousemen, not to that of common carriers.</p> <p>1'he owner of goods, delivered to a common carrier, is bound to take notice of a usage to store them, on arrival at their place of destination, in the carrier’s warehouse; and the carrier is thereafter liable only as a warehouseman.</p> <p>A warehouseman is liable only for negligence in preserving the property deposited with him.</p>

<p>The vendor’s right of stoppage in transitu is one eminently favoured by the law, and may be exercised at any time before the goods have reached their destination.</p> <p>When an intermediate delivery occurs, before they have reached their ultimate destination, if the p^rty to whom they are delivered, has authority to receive and give them a new destination, not originally intended, the transitas is at an end; but if the middleman be a mere agent to transmit the goods in accordance with original directions, the vendor’s right continues.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an action of trespass, originally brought before a justice of the peace, by John O’Donald against John Hanley, a constable, for levying on and selling goods of the plaintiff, claimed to be retained under the exemption law of the 9th April 1849. The justice gave judgment for the plaintiff for $99.99, from which the defendant appealed to the Common Pleas.</p> <p>On the 2d January 1852, Michael J. Seibert obtained a judgment, before a justice of the peace, against John O’Donald, the plaintiff below, for $65.68. An execution was. issued on the judgment, and under the Act of 9th April 1849, the plaintiff’s goods, consisting of furniture, bar fixtures, liquors, &c., were appraised at $290.91, and the execution returned “no goods, after appraisement and claim of $300 worth.”</p> <p>On the 21st May 1852, a pluries execution was issued on the same judgment, by virtue of which the defendant, John Hanley, levied on certain liquors, not embraced in the prior levy and appraisement. O’Donald claimed to retain the goods levied on, and demanded an appraisement, which the constable refused to a greater extent than $9.09, on the ground that O’Donald had on the former execution selected and retained property to the extent of $290.91. The constable proceeded to advertise and sell the liquors levied on, and applied the proceeds, $84.77, after paying the costs, to the Seibert judgment.</p> <p>On the trial in the Common Pleas, the defendant’s counsel submitted the following points, upon which he requested the court to charge the jury:—</p> <p>1. The plaintiff was not entitled to have three hundred dollars’ worth of property set apart under the Act of 9th April 1849, on the pluries execution, issued on Seibert’s judgment, he having had the benefit of the exemption law on an execution issued on the same judgment before that time.</p> <p>2. The plaintiff was not entitled to the benefit of the Act of the 9th April 1849, a second time, on process issued on the same judgment, without proof that he had parted with the property first set apart to him at its appraised value on an execution issued on the Seibert judgment, and that the proceeds thereof had been by him invested in the property levied off by the constable, under the pluries execution, issued on the same judgment.</p> <p>3. That under all the evidence in the cause the plaintiff is not entitled to recover.</p> <p>4. A stock of spirituous liquors cannot be exempted from levy and sale, under the Exemption Act of 9th April 1849.</p> <p>The learned judge (Hegins, P. J.) answered these points in the negative, and instructed the jury that upon the whole evidence, the plaintiff was entitled to recover; that the measure of damages was the value of the property at the time of the sale by the defendant, and they might adopt the price it then brought as its true value, together with interest from that time.</p> <p>To this charge the defendant’s counsel excepted; and a verdict and judgment having been given for the plaintiff for $110.17, the defendant removed the cause to this court, and here assigned the same for error.</p>

<p>A constable who disregards the provisions of the exemption law of 9th April 1849, by refusing to permit the debtor to select and retain goods to the amount of §300, is liable in an action of trespass.</p> <p>No indemnity will save him harmless in disregarding the act; a bond or obligation given for such purpose will not bind the parties to it. Thompson, J.</p> <p>It is no defence to such action, that the debtor had other property, exceeding §300 in value, which he fraudulently withheld from the officer, and refused to permit him to íevy on.</p> <p>But evidence of such a state of facts is receivable in mitigation of damages; and, if proved, the damages will he only nominal.</p> <p>The benefits of the act were intended for the honest poor, not for the protection of fraudulent debtors.</p>

<p>A defendant against whom a judgment has been recovered for a debt, part of which was contracted before the 4th July 1849, and the remainder subsequently to that date, can only have the benefit of the $300 exemption law, by paying that part of the debt which was contracted previously to the 4th July 1849, and claiming the benefit of the exemption as to the residue.</p> <p>A constable to whom an execution on such judgment is delivered, cannot bo treated as a trespasser for seizing and selling the debtor’s property, in disregard of his claim for an appraisement under the exemption law.</p>

This was an action of debt, by Howard Tilden against William Worrell, on a recognisance of bail in error.

<p>A sheriff’s sale of a lease of coal mines, wherein there is a reservation of the right to re-enter for non-payment of rent, divests the landlord’s right of re-entry, and discharges his lien for arrears of rent due at the time of sale; and such arrears of rent are payable out of the proceeds of sale, in preference to the claims of miners and mechanics.</p> <p>The landlord is entitled to a year’s rent, out of the proceeds of personal property sold on such execution, in preference to the claims of miners and labourers, under the Act 2d April 1849.</p>

<p>Error to the Common Pleas of Delaware county.</p> <p>This was an ejectment by Henry Effinger against George Lewis, Mordecai Lewis, and John Reece Lewis, for half an acre of land in the township of Nether Providence, in Delaware county.</p> <p>Both parties claimed under a lease dated the 18th September 1750, from James Sharpless to James Crozer; the plaintiff under the lessor, and the defendants under the lessee. By this instrument Sharpless demised unto Crozer, his heirs, executors, administrators, and assigns, “ a certain piece or parcel of land, situate and being in Providence township aforesaid, containing half an acre of land, to be opposite to James Crozer’s land on the other side of Crum creek, and adjoining to the said creek, where the said Crozer shall think convenient, above the road leading from Darby, through Springfield, to Providence aforesaid, between the road and the first turn on the aforesaid Crum creek, being a laurel hill, with free liberty to join a dam to, and build one on the said ground, and build or erect mill or mills, and quarry stone and dig earth, as much as he shall think proper, for the said dam, on the said ground; together also with the liberty and privilege to overflow as much of the said Sharpless’s land as he shall think proper, with water for the use of the mills aforesaid.”</p> <p>And it was also thereby covenanted by and between the said parties, “ that the said James Crozer, his heirs and assigns, shall and may deliver up the said premises, farm and privileges, and every the aforesaid, any time during the term below mentioned, giving the said James Sharpless one year’s notice beforehand; and also, it is agreed by the said parties, that the said James Crozer, his heirs and assigns, shall and may hold the said premises, liberties and privileges aforementioned, as long as he and they shall think proper, after the below-mentioned term has expired, paying the said yearly rent below mentioned, in manner below mentioned.” To hold the same at the yearly rent of ¿£3, payable on the 25th March annually, for the term of 100 years, from the 25th March 1751; with a covenant for quiet enjoyment.</p> <p>The parties holding under this lease being the owners of the adjoining land on Crum creek, on the faith of this instrument erected valuable and extensive improvements; and the defendants below, in whom the title of the lessee is vested by assignment, are the owners of two cotton factories, and a manufacturing village, which would be rendered useless for the purposes for which they are used, without the right to flood the plaintiff’s land, as the existence of the water-power depends on such right.</p>

This was an action of trover, by John Briggs & Go. against James Large and John Large, for five casks of madder, of the value of $1445.38. In the summer of 1856, A. S. Lippincott, a commission merchant, in Philadelphia, received on consignment from the plaintiffs below, 90 casks of madder. It was a regular part of his business, as a commission merchant, to receive madder on consignment.

This was an action of replevin by Robert F. Hazlett and Robert M. Slaymaker against John Hare Powell and William G-arrigues. The defendant Powell, and Garrigues, as his bailiff, avowed the taking of the goods as a distress for rent in arrear, to which the plaintiffs pleaded an eviction.

<p>Where a party amends his pleadings on the trial, the granting or refusal of a continuance, is a matter within the discretion of the judge, and cannot be reviewed in this court.</p> <p>A draft drawn by a creditor upon his debtor, in' favour of a third person, does not make such third person a part owner of the claim; and such person having released the parties from all liability on account of the draft, is a competent witness for the creditor.</p> <p>A clause in a policy of insurance against fire, which expressly prohibits camphene or friction matches “ from being deposited, used, kept, or sold in any building insured, or containing any goods or merchandise insured by this policy, unless by special consent, in writing, on the policy, by the secretary and which further provides that “ any violation of this prohibition shall render the policy absolutely voidis not violated by a casual uso of camphene or friction matches by the workmen employed in the building, contrary to the orders of the assured.</p> <p>The use of camphene and friction matches, contemplated in such clause, must be a use by the authority, express or implied, of the assured; a known and permitted use.</p> <p>If, however, the assured knew, or as prudent men ought to have known, of such use, mere orders to the contrary would not avail them: nothing short of an enforced prohibition would save the policy; and if such use was habitual, the law imputes to the assured knowledge and permission.</p>

<p>Appeal from the Common Pleas of Northampton county.</p> <p>This was an appeal by the County of Northampton from the decree of the court below distributing the proceeds of a sheriff’s sale of the personal property of Daniel S. Depue.</p> <p>On the 18th January 1763, Thomas Penn and Richard Penn, the late proprietaries, granted unto Thomas Craig and others a lot in the borough of Easton, in trust for the use of the inhabitants of the county of Northampton, and thereon to erect a common jail or prison, sufficient to accommodate the public service of the said county, and to and for no- other purpose whatever. This lot, Granville John Penn and Richard Penn, who represented the title of the grantors, by deed dated the 24th September 1852, granted and released to the county of Northampton.</p> <p>On the 15th September 1854, the county of Northampton demised a portion of this lot to Daniel S. Depue, by the following instrument, signed by one of the county commissioners:— .</p> <p>“Agreement made the 15th day of September A. D. 1854, between The county of Northampton of the one part, and Daniel S. Depue, of the borough of Easton, of the other part.</p> <p>“ The said The county of Northampton hath demised, leased, and let, and by these presents doth demise, lease, and let unto the said Daniel S. Depue and his heirs and assigns, a certain vacant lot or piece of ground situate on the south-east corner of Pomfret street and Pine alley, containing in front on said street sixty feet, and extending in depth about one hundred and fifteen feet to the jail yard wall, for the term of one year from the 1st day of October next. In consideration whereof the said Daniel S. Depue agrees to pay to the said The county of Northampton the yearly rent of $150, payable quarterly. The said lessee further agrees to leave the premises and deliver up the possession thereof, in as good condition as he finds it, at any time upon three months’ due notice, in case the county should sell the premises or want the same for county purposes. And further that he will not erect any building or other thing which might in any way endanger the safety of the jail yard or the escape of prisoners therefrom, within twenty feet thereof.</p> <p>“ In witness whereof the commissioners and lessee have set their hand and seals hereunto.</p> <p>“ Sealed and executed) in presence of > C. Kitchen. J</p> <p>Henry Messinger, rq , -, Daniel S. Depue.” h</p> <p>On the 22d January 1857, the county commissioners issued their warrant to the sheriff of Northampton county to distrain the goods and chattels upon the premises, for $337.50 rent in arrear, due the 1st January 1857. A distress was made under this warrant.</p> <p>On the 23d January a writ of fieri facias, at the suit of David B. Iiazen against Philip H. Depue and Daniel S. Depue, came to the hands of the sheriff, and was levied on the same goods previously distrained. The sheriff sold the goods levied on, and had in his hands the sum of $284.93, after deducting his costs and expenses.</p> <p>The plaintiff in the j£. fa., David B. Hazen, moved for a rule on the sheriff to bring the money into court; which was granted by the court below, and the following opinion delivered by Maxwell, P. J.:—</p> <p>“ The sheriff having made a special return to this fi. fa., showing a sale of defendants’ property to the amount of $303.50, the plaintiff obtained a rule to show cause why the sheriff shall not be directed to pay this amount, less the costs, into court. In this special return the sheriff states that, upon the day prior to this execution coming into his hands, the commissioners of Northampton county had placed in his hands a warrant of distress, dated that day, under their hands and corporate seal, whereby he was commanded and authorized ‘ to distrain all and singular the goods and chattels upon a certain lot of ground in the borough of Easton, liable to distress for rent, for the sum of $337.50 rent due on the 1st of January, then instant (1857), by Daniel S. Depue (one of the above defendants), to the county of Northampton upon a demise,’ &c. He proceeds to recite his compliance with the requirements of the Act of Assembly, under the warrant, and the making of the distress in pursuance thereof. He then states the placing of the above fi. fa. in his hands by the plaintiff’s counsel, with notice that he would contest the legality of the warrant of distress and would claim the money arising from the sale of the goods under the fi. fa. On the same day, viz., January 23d 1857, he levied on the same goods and chattels so as aforesaid dis-trained for rent, subject, however, to the aforesaid distress for rent. That the exemption of $300 being claimed by defendant, he caused that amount to be appraised to him, and the defendant not having replevied said goods, &e., within the time allowed by law, he proceeded to sell the residue of the goods and chattels in manner directed by law at public sale, of which due notice was given; and sold the same for the sum of $303.50, &c. That he has in his hands the sum of $284.93, to which the counsel for the plaintiff in the annexed fi. fa. denies the right of the commissioners of Northampton county, and claims the same towards the satisfaction of the debt, &c., in the annexed writ of fi. fa.</p> <p>44 The sheriff then states 4 That inasmuch as the aforesaid sum of $284.93 is claimed both by the said county commissioners, and also the plaintiff in the annexed writ of fi. fa., and the sheriff not wishing to decide as to who is legally entitled to the said money, he prays to be permitted to pay into court the said sum of $284.93, the amount of money made by the sale of the said goods and chattels.’</p> <p>44 Thus we have here, in addition to this rule, applied for by the plaintiff in the execution, a petition by the sheriff to allow him to pay this money into court.</p> <p>44 The courts have always deemed it their duty to protect officers, like sheriffs, from injury and loss in the performance of their duties.</p> <p>44 They will, as has been frequently decided, enlarge the time for the return of a writ, where there is a contest as. to property, until the sheriff is indemnified or the right between the contesting parties is tried.</p> <p>44 But it is urged here, that the sale of these goods was not under a writ issued from this court. And also that, the defendant not having replevied, his time to contest is passed, and that the plaintiff in this execution has no right to object.</p> <p>44 The return here does not, as we can see, positively state under which process the sale was made, nor when made. A levy was made under thefi.fa., and a sale was subsequently made, the plaintiff in the fi. fa. claiming the proceeds, as entitled thereunder.</p> <p>44 Now where there has been a sale under a fi. fa. the law is well settled that if the sheriff has any doubt as to the plaintiff’s rights to receive the money, he may pay it into court and thereby discharge himself from responsibility. If a third person claims it, he may rule the sheriff to pay it into court.</p> <p>44 But did not the sheriff, in executing this warrant, act in his official capacity so as to enable him to ask the intervention of this court for his protection in reference to the money, even if the sale had been wholly under the warrant?</p> <p>44 The Act of March 21st 1772, authorizing distress for rent, provides that4 where any goods shall be distrained for any .rent reserved, &c., if the tenant shall not replevy, &c., the person dis-training may, with the sheriff, under-sheriff, or constable, in the city or county where- such distress shall be taken (who are thereby required to be aiding and assisting therein), cause the goods and chattels to be appraised, &c.; and after such appraisement sell, &c., for and towards satisfaction of the rent, &c., leaving the over-plus, if any, in the hands of the said sheriff, under-sheriff, or constable, for the owner’s use.’</p> <p>“ It has been decided in 4 Penn. L. J., 180, under this act, that ‘ a constable may be compelled to assist in the collection of rents by distress, and whenever he acts officially, and he and his sureties are liable for moneys collected or neglected to be collected by him under the landlord’s warrant.’</p> <p>“ In McElroy v. Dice, 5 Harris 169, the Supreme Court, while declaring that the officer is not bound to make the distress, assert that the law may require his interference after the distress made, should an appraisement and sale become necessary.</p> <p>“ Here the sheriff then, if he made this sale under this warrant, acted in his official capacity.</p> <p>“ Taking the whole facts, then, we think that this court is not only authorized, but their duty to protect the officer, requires them to allow the payment of this money into court for distribution.</p> <p>“ If the defendant is concluded by not having replevied, or the plaintiff in execution has no right of interference with this warrant — this can be shown upon the distribution of the money, and the rights of all parties be preserved.”</p> <p>The proceeds of sale having been paid in by the sheriff, the court, after argument, decreed the same to David B. Hazen, the execution-creditor, being of opinion that the county commissioners had no right to lease the lot-in question, and that no binding lease had, in fact, been made. Erom this decree the present appeal was taken.</p>

<p>A condition in a policy of insurance against fire, issued to a partnership firm, that alienation of the insured property, by sale or otherwise, shall avoid the policy, applies to a transfer by one of the partners, on his withdrawal from -the firm, to the remaining partner.</p>

This was an amicable action of assumpsit, by Gann Arthur against The State Mutual Fire Insurance Company, upon a policy of insurance against fire, issued by the defendants on the 25th June 1852, whereby they insured the plaintiff, for the term of one year, against loss or damage by fire to the extent of $1400, on his two brick tenements, occupied by tenants, situated adjoining, on the corner of Main and Biddle streets, in Wheeling, Virginia.

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action of covenant, by Gabriel Winter and Benjamin G. Latimer, late trading as Winter & Latimer, against The Delaware Mutual Safety Insurance Company, on a policy of insurance on the schooner Orb and cargo, from Baltimore to Portland, in Oregon. The policy was for $2500 on the vessel, and $5000 on the cargo.</p> <p>The Orb sailed from Baltimore on the 1st May 1851, and about the 28th July was compelled, by disasters at sea, to put into Rio de Janeiro for repairs. The master, being without the means of repairing his vessel, applied to Maxwell, Wright & Co., the only American house in Rio de Janeiro, under whose care and advice the vessel was surveyed, examined, and repaired at an expense of $3272.14, loaned by them on the vessel and cargo, at the marine interest of 56 per cent.; and the master executed a bottomry and respondentia bond to secure to them the sum of $5104.53. Having no correspondent in Oregon, Maxwell, Wright & Co. made it a condition of the bond that the master should stop at San Francisco, where they had a house, and where also the plaintiffs had an agent. The bond was to be paid at San Francisco, and the vessel to proceed thence to Portland.</p> <p>The vessel having been thus repaired sailed from Rio de Janeiro, on the 1st August 1851, and on the 11th September, when off Cape Horn, again encountered very tempestuous weather, and was seriously damaged. On consultation, the master concluded to put back to some port on the Atlantic; and accordingly, on the 15th October, the Orb again put into Rio de Janeiro, in a damaged state. On being surveyed, the vessel and cargo were both condemned and sold; it being impossible to procure another vessel, by which the cargo might be forwarded to its destination; and the vessel being so much injured, as to be incapable of being repaired at a cost that would not exceed her value when the repairs were completed. The loss on the vessel was $3751.74; and on the cargo, $3869.27.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This case is reported in 2 Oasey 78. The facts which gave rise to the present writ of error sufficiently appear in the opinion of the court.</p>

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an action of the case brought originally by Catharine Strong, who afterwards intermarried with Nicholas Maher, against Dr. William Ashmead and Catharine Strong, for an alleged malicious prosecution. The first three counts of the declaration were in case, for malicious prosecution, the fourth, for conspiracy to injure the plaintiff, by the means set forth in the former counts.</p> <p>On the 18th January 1853, the defendants caused a warrant to be issued-by Alderman Elkinton, of the city of Philadelphia, charging Catharine Strong, the plaintiff, “with absconding, or about to abscond, from the city, with moneys belonging to the estate of Michael Strong, deceased, with intent to defraud heirs.” On this warrant, the plaintiff was arrested, held to bail, and, on the hearing, discharged by the alderman. She then brought this suit for malicious prosecution.</p> <p>On the trial, before Kuos, J., the jury rendered a verdict for the plaintiffs for $2500. Each of the defendants moved for a new trial; and on the 17th January 1857, the learned judge made the following order:—</p> <p>“ The rule for a new trial is made absolute so far as relates to Dr. Ashmead, and refused as to the other defendant — the plaintiffs, by their counsel, assenting to the following conditions imposed by the court, viz., that the damages be remitted above $1000, for which judgment is entered against Catharine Strong, one of th.e defendants, upon payment of the jury fee, and the case is discontinued as to William Ashmead, without any liability upon the part of the plaintiff for his, William Ashmead’s, costs. Mrs. Catharine Strong objecting to this order.”</p> <p>Catharine Strong, the other defendant, thereupon filed the following reasons in arrest of judgment: 1. The plaintiff is not entitled to recover upon the declaration filed. 2. The declaration does not support an action on the case. 3. From the purport of the declaration, the proper form of the action should be trespass vi et armis, and not case.</p> <p>The court overruled the motion in arrest of judgment, and the suit having been discontinued against Dr. Ashmead, entered judgment against Catharine Strong for $1000; which was here assigned for error.</p>

This was an action of assumpsit on a book account, for goods sold and delivered, brought by the firm of Palmer, Thomas & Co. against David Adams. The plaintiffs below filed a copy of their book entries, containing various charges against the defendant for goods sold between the 29th of October 1855 and the 11th September 1856; various credits were allowed, and a balance was struck amounting to $272.35.

• Appeal from the District Court of Philadelphia. This was an appeal by Mark Devine, from the decree of the District Court, distributing the proceeds of a sheriff’s sale of the real estate of Thomas U. Walter.

This was originally a proceeding before two justices of the peace, under the Act of 16th June 1836, by A. C. Bush against Abraham Green and Joseph Walker, to obtain possession of land sold at sheriff’s sale.

<p>A fi. fa. was issued and placed in the hands of the sheriff, to which he returned that he had levied upon and sold certain personal property of the defendants; afterwards, and before the return day, a second fi. fa. came into the sheriff’s hands, by virtue whereof he, by direction of the plaintiffs therein, levied upon other property, claimed by a third person; and the plaintiffs in the second writ indemnified the sheriff, who advertised the property for sale; the plaintiff in the first execution, two days before the time of sale, directed the sheriff to levy on the same property under his writ, which was done, and he likewise indemnified the sheriff: Held, that the proceeds of sale were applicable to the payment of the first execution.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was action of covenant, by Sarah Mifflin against Eliza Williams and others, for arrears of ground-rent. The parties agreed upon the following ease stated, reserving the right to a writ of error to the judgment of the court.</p> <p>“ By indenture made the 31st day of December A. D. 1810, recorded in Deed Book I. C., No. 10, p. 704, &c., between John P. Mifflin and Clementina, his wife, of the one part, and Jphn Workman of the other part, the said John P. Mifflin and wife conveyed to the said John Workman, in fee, five certain lots or pieces of ground, situate on the west side of Delaware Pront street, continued in the district of Southwark, marked in the plan thereon endorsed Nos. 1, 2, 3, 4, and 5. The said lot No. 1 containing in breadth on the said Pront street, 16-J feet, more-or less, bounded northward by lot No. 2; the said lot No. 2 containing in breadth on the said Pront street 16-|- feet, more or less, bounded northward by lot No. 3; the said lot No. 3 containing in breadth on the said Pront street 16J feet, more or less, bounded northward by a three feet wide alley; the said lot No. 4 containing in breadth on the said Pront street 16£ feet, more or less, bounded northward by the said lot No. 5, and each of the said lots containing in depth 90 feet; the said lot No. 5 containing in breadth on the said Pront street 20 feet 9 inches, more or less, and in depth 90 feet, bounded as therein particularly set forth; reserving out of each of the said lots a yearly ground-rent, and out of the said lot No. 5, a yearly ground-rent of eighty-three dollars, payable on the 4th day of April in every year thereafter for ever, to the said John P. Mifflin, his heirs and assigns, free of all deductions for taxes, charges, or assessments whatever, whether ordinary or extraordinary, as well on the said lots of ground as on the rent thereby reserved. And the said John Workman for himself, his heirs, executors, and administrators, covenanted with the said John P. Mifflin, his heirs and assigns, that he, the said John Workman, his heirs and assigns, would well and truly pay to the said John P. Mifflin, his heirs arid assigns, the said rent without any deduction as abovementioned.</p> <p>“ By another indenture made the 14th day of April A. D. 1812, recorded in Deed Book I. C., No. 17, p. 559, &c., between the same parties, the said John P. Mifflin and wife conveyed to the said John Workman, in fee, two certain messuages or tenements, and lot or piece of ground thereunto belonging, situate at the distance of 90 feet westward from the west side of Pront street, in the district of Southwark, containing in breadth north and south about 89 feet 9 inches, more or lets, and in length or depth east and west 112 feet 3-| inches, more or less, bounded as therein set forth, reserving thereout a yearly ground-rent of $>179.50, payable on the 4th day of April in every year thereafter for ever, to the said John P. Mifflin, his heirs and assigns, free of all deductions for taxes, charges, or assessments whatever, whether ordinary or extraordinary, as well on the said lot of ground as on the rent thereby reserved, and the said John Workman, for himself, his heirs, executors, and administrators, covenanted in the said last-mentioned indenture with the said John P. Mifflin, his heirs and assigns, that he, the said John Workman, his heirs and assigns, would well and truly pay to the said John E. Mifflin, his heirs and assigns, the said rent thereby reserved, without any deduction, as abovementioned.</p> <p>“ On the 13th day of May A. D. 1813, the said John E. Mifflin died seized of the said two ground-rents, having made his last will, dated the 24th day of October A. d. 1812, whereby he devised the said ground-rents of $83 and $179.50, inter alia, to Dr. Caspar Wist'ár and Edward Burd, Esq., in trust, to sell and dispose of, and they, by indenture of 28th of June 1815, conveyed the same in fee to the plaintiff.</p> <p>“The said John Workman died on the 1st day of January 1829, seized of the said lot of ground, subject to the said rents thereout respectively reserved, intestate, leaving the said defendants his issue and his heirs at law. Whereupon his estate in the said lots of ground came to and vested in the defendants.</p> <p>“ Under proceedings in the Court of General Quarter Sessions of the Peace, in and for the county of Philadelphia, upon a petition for a jury of view to view and lay out Scheetz street, the viewers for that purpose selected made report on the 30th day of December A. D. 1843, that they had laid out, and did return for public use the following street, 38 feet wide, to wit: beginning at a point on the east line of Second street, in the district of Southwark, at the distance of 90 feet southward from the southeast corner of Cox’s alley, or street, and said Second street, thence extending eastward on a line between T. A. McDonnell, C. M. McIntyre, Samuel P. Watkins, and Jacob Scheetz on the north, and ground of Jacob Scheetz on the south, now thrown open by the said Jacob Scheetz for a street, to a point on the west line of Eront street, at a distance of 86 feet southward from said Cox’s alley, or street, and thereon southward along the line of said Eront street, on the line of Jacob Scheetz and the estate of John Workman, deceased, 38 feet to a point, thence westward of that width on a parallel line 201 feet 7f- inches, passing through ground of the estate of John Workman and Jacob Scheetz, and thence continuing the same line westward a further distance of 201 feet 71-inches, to the east line of Second street aforesaid, at the distance of 128 feet southward from the south-east corner of said Cox’s alley, or street, and Second street, passing through the lands of the said Jacob Scheetz, and on the line dividing ground of H. Osier and Jacob Scheetz, and thence northward on the said line of Second street to the place of beginning.</p> <p>“Which report was confirmed by the said court on the 4th day of June A. D. 1846, and on the 23d day of October A. D. 1846, a jury of viewers duly appointed to assess the damages by reason of the opening of said street, assessed the damages by opening said street, to the heirs of the estate of John Workman, deceased, at $4750, and this assessment was duly confirmed and approved by the said court on the 2d day of April A. d. 1847.</p> <p>“ By an Act of Assembly of this Commonwealth, entitled an Act to open Scheetz street, in the District of Southwark, approved the 29th of March A. D. 1849, it was enacted that the said street should be opened, as it was described in the said report of the jurors in favour of opening the same, and that the damages sustained by the opening of the said street should be paid out of funds of the county of Philadelphia, to wit, $4750, assessed by the said jury sworn or affirmed, October 23d, 1846.</p> <p>“ The defendants afterwards applied for and received payment from the treasurer of the county of Philadelphia, of the said sum of $4750, in two payments, to wit: $2714.29 on the 23d of March 1850, and $2035.71 on the 3d of April 1850, which sums were paid on those days respectively, by the said treasurer to the agent or attorney of the defendants. The defendants have retained the whole thereof, claiming to hold it for their own use, and have refused to pay any part thereof to the plaintiff.</p> <p>“ Twenty feet of the southerly part of the said Scheetz street was laid out upon twenty of the northerly part of the said lot of ground, No. 5, out of which the ground-rent of $83 was reserved, leaving four inches of the said lot not taken by the said street, and also upon twenty feet of the northern part of the said lot of ground of which the ground-rent of $179.50 was reserved.</p> <p>“No part of the said ground-rent of $83 has been paid since the year 1852; and of the ground-rent of $179.50, reserved as aforesaid, a part only, to wit: the sum of $139.50, has been annually paid by the defendants, since the year 1852.</p> <p>“ This action of covenant is brought against the defendants, heirs of the said John Workman, upon his covenant, contained in the said indenture, respectively to recover four annual payments of $83 each, claimed to be due on the 4th April 1853,1854,1855, and 1856, respectively, with interest on the same from the dates they respectively became due; and also a balance of $40, claimed to be due on the 4th April 1853, 1854, 1855, and 1856, respectively, upon the said ground-rent of $179.50, with interest, from the dates the same became due, respectively.</p> <p>“ The defendants claim that they are not liable to pay so much of the said ground-rents as, upon a just apportionment thereof, would be chargeable upon that part of the lots, whereout they were reserved, which was appropriated for Scheetz street, afore- • said.</p> <p>“ It is agreed that the amount of the said ground-rent of $83, properly chargeable on an apportionment upon the four inches of the said lot No. 5, not taken and appropriated for the said Scheetz street, is $1.33; and that the amount of the said ground-rent of 179.50, in like manner chargeable on the lot of ground out of which it issues, not taken and appropriated for the said street, is $139.50.</p> <p>“ If, upon the whole case, the court are of opinion in favour of the plaintiffs, judgment is to be entered in her favour for the aggregate of the following sums, to wit: — ■</p> <p>Due, April 4, 1853, from lot No. 5 $83.00</p> <p>a tt 1854, “ “ “ 83.00</p> <p>it a 1855 “ “ “ 83.00</p> <p>a tt 1856, from lot No. 5 . 83.00</p> <p>it tt 1853, from last-mentioned lot 40.00</p> <p>tt tt 1854 “ “ “ 40.00</p> <p>It it 1855 “ “ “ 40.00</p> <p>a tt 1856 “ “ “ 40.00</p> <p>With interest on those sums, respectively, from the above dates, respectively.</p> <p>“ If, however, the court are of opinion in favour of the defendants, judgment is to be entered in favour of the plaintiff, for the aggregate of the following sums, to wit:—</p> <p>Due April 4, 1853, from lot No. 5 . . $1.33</p> <p>“ “ 1854 “ “ “ . 1.33</p> <p>“ “ 1855 “ “ “ . 1.33</p> <p>“ “ 1856 “ “ “ . 1.33</p> <p>With interest on these sums, respectively, from the above dates, respectively.”</p>

This was an action of assumpsit by John Beenken against Jacob Knight and Charles Doerr, trading as Knight & Doerr, wherein the parties stated the following case for the opinion of the court, to be considered as a special verdict:— “ In 1853, Sebastian Root took a lot of ground on Franklin street, above Poplar street, the ground adjoining then belonging to Mr. Fotteral, and built upon it a three story brick house, four and one-half inches whereof is on the adjoining lot,…

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit, brought by Samuel K. Bye against Algernon S. Roberts, Jr., to recover the value of certain party-walls. The declaration contained the common money counts, to which the defendant pleaded the general issue.</p> <p>On the 21st June 1851, James L. Gihon, being the owner of a vacant lot of ground on Rittenhouse Square, in the city of Philadelphia, contracted with Samuel K. Bye, the plaintiff' below, for the erection of a brick house thereon. The contract contained this clause: “The party-walls to belong to the contractor.”</p> <p>On the 12th June 1854, Gihon sold the premises to Algernon S. Roberts, Jr., the defendant below, with notice that the party-walls belonged to the builder; but no mention of the party-walls was made in his deed to the defendant.</p> <p>On the 9th April 1856, Roberts sold and conveyed the premises to John Fallon, without notice of the plaintiff’s equitable ownership of the party-walls. And this action was brought against Roberts for the value of them.</p> <p>On the trial, the deposition of James L. Gihon was offered in evidence, on the part of the plaintiff, and admitted, notwithstanding an objection to his competency by the defendant. The court charged the jury, that the value of the party-walls could be recovered in this action; and there was a verdict and judgment for the plaintiff, for $338.24.</p> <p>The following opinion was delivered in the court below, on a rule for a new trial, by Sharswood, P. J.:—</p> <p>“ It only tends to confuse the mind to consider this as an action to recover the value of a party-wall under our Acts of Assembly. The plaintiff was the original architect, who contracted to build a house for one Gihon, and, as it is not uncommon, stipulated in his contract that the right to receive compensation for the party-wall, when it should accrue, should belong to him. If then the wall had been used, Bye would have been compelled to sue in the name of Gihon, the legal owner of the claim; Bye having an equity. Gihon sold to Roberts, and gave him distinct notice of Bye’s equity. Roberts was now the legal owner under the Act of 1849, but .subject to Bye’s equity. The notice affected him with the trust; he stepped into Gihon’s shoes, and stood in the same privity with Bye that Gihon did. If, during Roberts’ ownership, the wall had been used, the suit must have been in Roberts’ name to Bye’s use. Roberts was a trustee for Bye. But when Roberts sold to Fallon, without notice, the right of action vested absolutely in Fallon, clear of Bye’s equity. If the walls were afterwards used, Fallon would be entitled to recover for such use, and the money would be his; Bye would have no claim to it. On the sale of the house, the contingent right of compensation may or may not have been a distinct subject of calculation in the consideration: it matters not, if it was or not. It is for the jury to say how much it was worth; whatever it was, when Roberts received the value, it was Bye’s money, and Bye could at once sustain an action for money had and received to his use. If not, Bye has been deprived of a clear right, and is without a remedy. If he waits till the wall is used, he clearly has no right of action against the second builder. Fallon, who bought without notice, is the person entitled to that. Must he wait until then before he can sue Roberts ?</p> <p>“ What action can he then bring ? An action for money had and received, or on the case for wrongfully using the wall. In either event, the time of the accruing of the cause of action is the sale and conveyance, and that, or at all events notice of it, would be the time from which the Statute of Limitations would begin to run.</p> <p>“ We have had considerable difficulty as to the competency of Gihon; the case however having been tried before (when, indeed, the question of Gihon’s competency did not arise), and the point being a doubtful one, we think it will most effectually answer the ends of justice to allow the verdict to stand, the judge before whom the case was tried being willing to sign a bill of exceptions. Rule dismissed.”</p> <p>The defendant thereupon sued out this writ, and assigned for error: 1. The admission of James L. Gihon as a witness. 2. The charge of the court below.</p>

<p>Appeal from the District Court of Philadelphia.</p> <p>This was an appeal by William B. Thomas, from the decree of the District Court, distributing the proceeds of a sheriff’s sale of the real estate of Joseph Brown and William M. Godwin.</p> <p>In 1851, the firm of Brown & Godwin, then composed of Joseph Brown, William M. Godwin, and Francis A. Godwin, borrowed certain moneys from George McHenry & Co.; and to secure the debt, two of the firm, Joseph Brown and William M. Godwin, gave a mortgage, to secure the joint bond of all the partners, for $4000, upon a house and lot in Pine street, of which the mortgagors were tenants in common, subject to a prior mortgage to John Pechin upon the same premises.</p> <p>On the 1st October 1854, the debt due by the firm of Brown & Godwin to George McHenry & Co. was paid; and on the 12th December 1854, Brown & Godwin made a general assignment for the benefit of their creditors to William B. Thomas, the appellant. Prior to this assignment, however, William M. Godwin had become individually indebted to George McHenry & Co. to an amount exceeding $4000; and without the knowledge or consent of Joseph Brown, his co-mortgagor, he made a parol agreement with George McHenry & Co. that they should hold the- $4000 mortgage, as security for his individual indebtedness.</p> <p>In 1856, the mortgage to John Pechin was sued out, and the premises were sold by the sheriff. The balance of the- proceeds of the sale, after payment of Pechin’s mortgage, was paid into court, and an auditor was appointed to distribute the fund, which was claimed by William B. Thomas, the assignee, and by George McHenry & Co.</p> <p>The auditor (Clement B. Penrose) awarded the fund to the assignee; exceptions were filed by George McHenry & Co.; the court below reversed the decision of the auditor, and decreed the fund to be equally divided between the assignee and George McHenry & Co.; from which decree this appeal was taken.</p> <p>The grounds taken by the respective parties will best appear in the opinions delivered in the District Court.</p>

<p>Appeal in Equity from the Common Pleas of Philadelphia.</p> <p>This was a hill in equity, by John Robinson against Lloyd W. Bickley, for the specific performance of an award. The answer of the defendant alleged that the paper purporting to be an award, recited in the complainant’s bill, was illegally made, and that he had previously executed and served a revocation of the submission. The complainant filed a general replication.</p> <p>The following facts appeared from the master’s report: — That on the 23d June 1848, Robinson executed and delivered to Bickley, a bond and mortgage for $5000, on a house and lot on the north side of Arch street, at about the distance of 213 feet 8 inches westward from the west side of Delaware Eront street, in the city of Philadelphia.</p> <p>That subsequently difficulties and differences,, relating to this and other matters, having arisen between the parties, for the purpose of adjusting the same, they made an agreement under their hands and seals, dated the 17th March 1849, and a supplemental one, also under their hands and seals, dated the 19th March 1849, referring all matters in dispute between them, to Charles S. Boker, George W. Ridgway, and James R. Smith, who were to be sworn or affirmed to decide justly between the parties. The award of a majority of the referees was to be final, and without appeal; it was to be consummated within three months from the date thereof; and the referees, or a majority of them, were to make out their award in duplicate, and deliver a copy to each party, within three months from the date of the submission.</p> <p>That on the 19th March *1849, the said referees were duly affirmed, according to the provisions of the agreement, and in pursuance thereof, held- numerous meetings, at which the parties and their respective solicitors attended, and heard the parties and their proofs. Their last meeting was on the evening of the 21st May 1849. On that evening the referees had a long conference; Smith and Ridgway arrived at a definite conclusion, to which Boker would not assent. They both understood- Boker to say that he would not meet again, and Smith said the same. There was no adjournment to any other time, nor arrangement for any future meeting. They never met together again.</p> <p>The terms which Smith and Ridgway had determined on and submitted to Boker, who declined acceding to them, were definitively settled that evening, in the presence of Boker, as they were afterwards drawn up in the award. Smith and Ridgway having, on that evening, definitively settled their award, in the presence of the other referee, concluded their labours, with the understanding that it should be formally drawn up on the following morning, and signed by them.</p> <p>On the morning of the 22d May, before 12 o’clock, the award was written out in duplicate, signed by Smith and Ridgway, and taken by Ridgway to Boker. It was not expected that Boker would sign it, from his remarks on the evening before, but they thought it proper to extend to him the courtesy of submitting it to him again: Boker ivas out; Ridgway then served one copy on the complainant’s counsel, and returned with the other to Boker, who declined signing it, saying he had determined on another course. He desired to state his reasons for not signing it on the back. It was left with him for that purpose.</p> <p>On the morning of the 23d May, Ridgway received back the paper, with the following endorsement, dated 22d May 1849, and signed C. S. Boker: — •“ The undersigned, one of the referees to whom was submitted various matters in dispute between Lloyd W. Bickley and John Robinson, declines signing the within award, preferring that the parties be referred back to their suits at law.” Ridgway served this copy of the award upon Bickley, on the 24th of May. He called at Bickley’s office, several times, for that purpose, on the 22d, but could not find him — he resided out of town, and his counsel declined receiving it for him.</p> <p>On the 22d May 1849, Bickley executed a revocation of the submission, and on the afternoon of that day, between three and four o’clock, after the signing of the award by Smith and Ridgway, and the endorsement of Boker thereon, this revocation was served on Smith and Ridgway, and, on the 23d, upon Boker.</p> <p>In addition to this, it appeared in evidence that Bickley had called on Boker early on the morning of the 22d May; that he there heard that the award was likely to be unfavourable to him; that he then notified Boker verbally that he intended to revoke; and that it was after this interview that Boker declined to sign the award, subsequently presented by Ridgway.</p> <p>The award made by the majority of the referees, under their hands and seals, was as follows:—</p> <p>“ 1. That the bond and mortgage given by John Robinson to Lloyd W. Bickley, June 23d 1848, for $5000, should be given up to said Robinson. That said Bickley should within ten days from the date thereof, acknowledge satisfaction upon the record of said mortgage and said judgment, and pay the costs of said entries.</p> <p>“ 2. That said Bickley should within ten days withdraw the levy made by him upon certain goods claimed by said Robinson, and should stay all proceedings and enter satisfaction at his own cost in the feigned issue arising therefrom.</p> <p>“ 3. That said Bickley should pay to said Robinson $1500, within sixty days from the date thereof, or within ten days give the said Robinson such good endorsed notes for said amount, drawn in such manner, and at such time as should be satisfactory to said Robinson.</p> <p>“ 4. That the costs attending the reference should be paid by Robinson; and that upon the fulfilment of these conditions, the said Bickley and Robinson should respectively and mutually deliver to each other a full release of all demands in any manner arising; and that the books of Perrine & Co., produced in evidence as the property of Robinson, should be given up to him at once.”</p> <p>The defendant having died, pending this suit, it was revived against Margaret Bickley, his executrix; and on the 7th July 1856, the court below made a decree that the award be carried into effect, on or before the first day of August next ensuing. From this decree the executrix appealed to this court.</p>

<p>When an award is made under a submission, the presumption of law is, that nothing is included in the award that was not submitted, and that all that was submitted is included; but the contrary may be shown.</p> <p>Where a submission is in writing, it cannot be directly revoked, except by a written instrument given to the arbitrators, or a majority of them.</p> <p>If one of the arbitrators, during the investigation, refuses to serve because one of the parties has written to him a letter, the other two may go on without him, if a majority have power to award.</p> <p>When an award has been made by a competent number, the presumption is, that the whole case had been first fully considered.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an ejectment, by James Gr. Clark against James Hetherington, John Woolley, and Patrick Burns, for a lot of ground in the borough of Pottsville, being part of a larger lot, numbered 34, in Potts’s and Patterson’s addition to the town of Pottsville.</p> <p>On the 9th October 1830, Morgan P. Old conveyed to Joseph Bomeisler a lot on the south-westerly side of Market street, in the borough of Pottsville, containing in front on said Market street 34 feet, and in depth 114 feet. This included the locus in quo. Both parties claimed under Joseph Bomeisler.</p> <p>The plaintiff gave in evidence a deed dated 27th August 1841, from Louis Bomeisler and wife and Joseph Bomeisler, to James Gr. Clark, the plaintiff, in consideration of $240, for “ all lots, tracts, or pieces of land and reservations, situate in the borough of Pottsville, and county of Schuylkill, Norwegian township, state of Pennsylvania, which we now possess jointly and separately, and are entitled to, and all and every part thereof, and all our right, title, and interest of and in the same,” &c.</p> <p>This deed was recorded on the 13th June 1842, before the deed under which the defendants.claimed.</p> <p>The defendants claimed, under a deed dated the 31st December 1830, from Joseph Bomeisler to William L. Hirst, in consideration of $750, a lot of ground on the south-westerly side of Market street, containing in front 51 feet, and in depth 114 feet, being part of the lot conveyed to him by Morgan P. Old. This is the lot in controversy. This deed was not recorded until the 9th October 1847.</p> <p>They also gave in evidence a deed dated 26th July 1837, from William L. Hirst to Thomas Harvey, for the locus in quo. This deed recited that the premises conveyed were part of a larger lot which Morgan P. Old, by deed of the 9th October 1830, conveyed to Joseph Bomeisler; and which Bomeisler, by deed of the 31st December 1830, granted to William L. Hirst. It was recorded on the 17th March 1840, before the deed under which the plaintiff claimed.</p> <p>On the trial in the court below, the defendants’ counsel submitted the following points, upon which they requested the court to charge the jury:—</p> <p>1. That the deed from William L. Hirst to Thomas Harvey, and the assignment from Harvey to Thompson for the land in dispute, reciting the deed from Joseph Bomeisler to Hirst, bearing date and having been recorded prior to the date and, record of the deed from Joseph Bomeisler to the plaintiff (Clark), was notice to the plaintiff, and he cannot recover in this suit.</p> <p>2. The deed from Bomeisler to plaintiff (Clark) is of itself notice to plaintiff that Bomeisler did not intend to convey, and did not, in fact, convey any ground to the plaintiff, which he (Bomeisler) had previously conveyed to any other parties, and of which the plaintiff took upon himself the risk.</p> <p>3. The plaintiff, under the deed from Lewis Bomeisler and wife, and Joseph Bomeisler, did not take title to any portion of the land in question.</p> <p>The court below (Hegiíts, P. J.) answered these points in the negative, and charged the jury that, upon the whole evidence, the plaintiff was entitled to recover.</p> <p>There was a verdict and judgment for the plaintiff below, whereupon the defendants removed the cause to this court, and assigned for error, the answers of the court below to the points submitted on the trial.</p>

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Stephen Smith from the decree of the Orphans’ Court, in the matter of his account as guardian of Thomas Y. Savage.</p> <p>On the 14th September 1844, Stephen Smith, the appellant, was appointed guardian of the estate of Thomas Y. and William Savage, two colored children, who resided with their mother, in Philadelphia.</p> <p>John M. Savage, the father of the wards, died in Monrovia, in Africa, in 1840, leaving a will, whereby he gave to his wife one-fourth of his estate, and a fourth to each of his children, a daughter and the two sons above named. In case of the death of either of them, in their minority, the share of the deceased was to be equally divided between the survivors. The daughter died, unmarried, and without issue. The guardian filed an inventory in 1845, showing that he had received $14,150, belonging to the sons.</p> <p>In the summer of 1854, Thomas Y. Savage, who had been studying medicine in Canada, determined, with the consent of his mother, to visit Europe for the purpose of completing his medical education. He came to Philadelphia to make arrangements for the necessary funds to pay his expenses, and on the 24th June, he. accompanied his guardian, Stephen Smith, and his uncle, John Henderson, to the office of a conveyancer, when the following bond was executed by the latter, and delivered to Smith.</p> <p>“Know all men, by these presents, that I, John Henderson, of the city of Camden, in Camden county, in the state of New Jersey, gentleman, am held and firmly bound unto Stephen Smith, of the city of Philadelphia, in the state of Pennsylvania, lumber merchant, in the sum of $3000, lawful money of the United States of America, to be paid to the said Stephen Smith, his certain attorney, executors, administrators, or assigns. To which payment, well and truly to be made, I do bind myself, my heirs, executors, administrators, and every of them, firmly, by these presents. Sealed with my seal, dated the 24th day of June, in the year of our Lord 1854. Whereas, Stephen Smith, the obligee above named, is the guardian of Thomas Y. Savage, of Toronto, Canada West, a minor, and at the special instance and request of the above' bounden John Henderson, hath this day advanced unto the said Thomas Y. Savage, the sum of $1500, the repayment of which, with interest, the said John Henderson doth hereby intend to guarantee. Now, the condition of this obligation is such, that if the said John Henderson, his heirs, executors, or administrators, shall cause and procure the said Thomas Y. Savage, on his arrival at the age of twenty-one years, to pay or cause to be paid unto the said Stephen Smith, his heirs, executors, or administrators, the said sum of $1500, lawful money as above said, together with lawful interest for the same in like money; or in case the said Thomas Y. Savage should die, before arriving at the age of twenty-one years, if the said John Henderson, his heirs, executors, or administrators, shall pay or cause to be paid unto the said Stephen Smith, his heirs, executors, or administrators, the said sum of $1500, such as aforesaid, together with lawful interest for the same, in like money; and also shall and do from time to time, and at all times hereafter, well and sufficiently save, keep harmless and indemnified, the said Stephen Smith, his heirs, executors, and administrators, and his and their goods and chattels, lands and tenements, of and from all actions, suits, payments, costs, charges, and damages, for or by reason of the advance aforesaid, then this obligation to be void, or else to be and remain in full force and virtue. And I further hereby empower any attorney, of any of the courts of record in this state, or elsewhere, to appear for me, and after one or more declarations filed for the above penalty, thereupon to confess judgment or judgments against me, as of the last, next, or any subsequent term, with stay of execution until the 1st day of December, A. d. 1854.”</p> <p>On the day of the execution of this bond, Smith advanced to Henderson $1500, by check payable to his order. Henderson received the money, and gave $500 of it to Savage, who then proceeded to Europe.</p> <p>Savage became of age on the 20th November 1854, and on the 21st drew on Smith for $500 in favour of Henderson, for which Smith was allowed a credit.</p> <p>Henderson afterwards absconded. There was no evidence whether or not he paid Savage the whole of the $1500 advanced by Smith, except the declarations of Savage himself to the contrary, in his letters to Smith.</p> <p>.The auditor refused to allow a credit to Smith for the $1500 so advanced, hut reported that he was entitled to credit for so much of it, as was proved to have been actually received by Savage, to wit, $500. Both parties excepted, and the court disposed of the exceptions by charging Smith with the whole $1500. Prom this decree the appeal was taken.</p>

<p>Appeal in Equity from the Common Pleas of Montgomery county.</p> <p>This was a bill in equity by William Buekman against Peter Phipps and James W. Phipps, for the specific performance of a contract for an exchange of lands. It appeared on the hearing, that the complainant had executed a deed to the defendants for the property agreed to be conveyed to them, and that they had gone into possession. The answer alleged fraud and misrepresentation on the part of the complainant, in reference to the contract. The facts are sufficiently set forth in the opinion of the court.</p> <p>The court below made a decree for specific performance; from which this appeal was taken.</p>

<p>Error to the Common Pleas of Tioga county.</p> <p>This was an ejectment brought by Lyman P. Hoyt against Charles S. Whitcomb, Julius Kirkendall, William W. Ballard, and William B. Middaugh, for a tract of land in Middleburg township, containing sixty acres. The land claimed in this action was part of a larger tract, well defined, and marked upon the ground, known as the “Uriah Leet lot,” containing 246x% acres; and until the 18th September 1854, it was vacant or unappropriated land, the title to which had never been taken from the Commonwealth.</p> <p>Previous to 1830, one Uriah Leet went upon this lot, built a frame house, cleared and cultivated 10 or 12 acres, and lived upon it for several years. During this time, one Beebe built a log house upon it, and worked upon the lot under Leet.</p> <p>On the 24th December 1833, Leet’s interest in the land was sold by the sheriff, under a venditioni exponas, to William Willard, Jr. From the fall of 1833, to the spring of 1834, one Blanchard lived upon it; but, whether under Willard or Leet, did not appear.</p> <p>On the 10th March 1834, Willard conveyed the land to Norman Andrus, who went upon it, and resided there until 1839. During this period, he cultivated the improved land, cleared and cultivated 28 or 30 acres, and built and occupied a frame barn and distillery upon it.</p> <p>On the 15th February 1839, Andrus conveyed (by deed, duly recorded on the 21st) to Sylvester Beckwith, who went upon the lot immediately after his purchase, and lived upon it for two years. He then built a house three or four rods over the line of the lot, and upon the public highway, and moved into it. There was no public road which touched this lot; but the Wellsboro’ and Tioga road ran six or seven rods south of it. Beckwith owned ten acres of land adjoining this lot, on the south, through which the road passed, and upon which he had a saw-mill, mill-pond, &c. He built his house on the ten acre lot, upon the road, and nearer to his saw-mill.</p> <p>After Beckwith moved off the land, different persons, under him, lived in the frame house, the log house, and the distillery, which had been changed into a dwelling-house, until 1845-46. About this time, Beckwith commenced using the old frame house as a barn; and the log house, occupied by one Green, was burned down. Green then left the premises for a few months, until the distillery became vacant by the removal of the tenant, when- he returned and lived in it, until September 1852. Beckwith then gave Green permission to take it down, and build another from the materials; but Green and his neighbours took it down, and built Green another house about 40 feet over the line of this lot, upon another piece of land.</p> <p>On the 6th January 1853, Beckwith, being indebted to Benjamin C. Wickham and David H. Tuthill, agreed to sell them a portion of his land, (including the Leet lot) for i$12,000; and to make title by a sheriff’s sale and deed. This was carried out by a sheriff’s sale of the land to Wickham and Tuthill, on the 3d September 1853, and a deed was duly acknowledged to the purchasers. Beck-with continued in possession until the spring of 1856, when he gave up possession to the defendants below, who claimed under Wickham and Tuthill.</p> <p>From 1889 to 1856, Beckwith cultivated the improved land each year, cleared enough more to make about 70 acres, and raised from three to five hundred bushels of wheat upon it yearly, besides other grains and grasses. He fenced the land, occupied the barns, cultivated and grafted an orchard upon it, and paid the taxes.</p> <p>On the 18th September 1854, Lyman P. Hoyt, the plaintiff below, obtained from the Commonwealth a descriptive warrant for 60 acres of this land, upon the back end, unimproved. The warrant was located on the 8th December 1855, and returned 1st February 1856; and this ejectment was commenced on the 29th September 1856.</p> <p>On the 3d December 1855, Wickham and Tuthill obtained a descriptive warrant for the whole of the Leet lot, as improved land, and paid for the same, with interest from the 1st November 1830. The warrant was for 231 acres, and' returned surveyed upon the same 246,$^ acres, embracing the Uriah Leet lot only. In the spring of 1856, another house was built upon the premises, which was occupied by Kirkendall, one of the defendants.</p> <p>The main question in the case was, whether the settlement made by Leet and his successors was lost by abandonment; there having been no personal residence upon the land from the time Green left in September 1852, until the obtaining of the descriptive warrant by Wickham and Tuthill, on the 3d December 1855.</p> <p>On the trial of the cause, the defendant’s counsel offered to prove by Sylvester Beckwith, that he never intended to abandon the land. The court, however, ruled out the evidence, and sealed a bill of exceptions.</p> <p>The defendants submitted the following points, and requested the court to charge the jury as follows:—</p> <p>3. If the jury believe, from the acts of cultivation and cropping, fencing and improving, from the trimming and grafting the apple trees and building the house, the purchase and location of the war-? rant, and all the evidence in the case, that there was no intention of abandonment, then the plaintiff is not entitled to recover, although there was no personal residence upon the land from the time Green went off in 1852 until Kirkendall moved on in 1856.</p> <p>2. That the deed from Norman Andrus to Sylvester Beckwith, dated February, 15th, 1839, and recorded February 21st, 1839, was, after being so recorded, and actual occupation of the premises taken under said deed, constructive notice to plaintiff and. all the world of the settlement, occupation, and claim of the defendants and their grantors, and the plaintiff having such notice prior to obtaining his warrant and survey, is not entitled to recover.</p>

<p>In a proceeding for divorce on the ground of desertion, it is not sufficient for witnesses to testify that the respondent wilfully and maliciously deserted the libellant, in the words of the statute. Uaets must be proven showing that such desertion has taken place, and that it was wilful and malicious.</p> <p>The refusal of a wife to accompany her husband to a foreign country, is not, in itself, a wilful and malicious desertion, within the meaning of the act.</p> <p>Our courts have no jurisdiction to decree a divorce, on the ground of desertion, where the marriage and alleged desertion took place in a foreign country, and the defendant never was within the jurisdiction.</p> <p>The Act of 26th April 1850, giving jurisdiction on the ground of desertion, where the parties at the time of the occurrence were domiciled in any other state, applies only to parties who were so domiciled in some other of the United States.</p>

<p>Appeal from the Common Pleas of Lehigh county.</p> <p>This was an appeal by Amanda Hoffman, from the decree of the court below, divorcing her from her husband James W. Hoffman.</p> <p>On the 29th January 1855, James W. Hoffman presented the following libel for divorce a vinculo matrimonii, to one of the associate judges of Lehigh county, upon which a subpoena was awarded.</p> <p>“ To the Honorable the judges of the Court of Common Pleas of Lehigh county:</p> <p>“ The libel of James W. Hoffman respectfully showeth: That your libellant on the 19th day of November, A. D. 1854, was bound in matrimony, and married to a certain Amanda Goebel, yet from that time until this present time, did not live nor cohabit with the said Amanda Goebel, as his wife, and as such did not own nor acknowledge her to be. And although by the laws of God, as well as by their mutual vows and faith plighted to each other, they were bound to that uniform constancy and regard which ought to be inseparable from the marriage state, yet so it is, that the said Amanda Goebel, the said parties being domiciled in the state of Pennsylvania all the time, hath wilfully and maliciously obtained the said marriage fraudulently, and with force and coercion; and that in order to obtain the said marriage, the said Amanda wilfully and knowingly made false representations to your libellant and his friends, which said false representations (your libellant at the time not knowing them to be false) induced the said libellant to enter into the bonds of matrimony with the said Amanda Goebel. Wherefore your libellant, further showing that he is a citizen of the state of Pennsylvania, and has resided therein for upwards of one whole year previous to the filing of this his libel, prays your honors that subpoena may issue forth to summon the said Amanda Goebel, to appear in this honourable court, at the next term, to answer his complaint aforesaid. And also that this honourable court may decree a divorce and separation from the said nuptial ties or bonds of matrimony heretofore uniting, as above mentioned, this libellant to and with the said Amanda Goebel.</p> <p>“ James W. Hoeemak.</p> <p>“ Lehigh county, ss.</p> <p>“James W. Hoffman, the within-named libellant, being duly sworn according to law, doth depose and say that the facts set forth in the within libel are true and correct, to the best of his knowledge and belief.</p> <p>“ James W. Hoeeman.</p> <p>“ Sworn and subscribed January 29th 1855, before</p> <p>“Jacob Dillinger, A. J.”</p> <p>To the subpoena and alias, the sheriff returned that the said Amanda could not be found within the county. And a notice having been duly published for her to appear on the 5th November 1855, the court appointed a commissioner to take testimony ex parte.</p> <p>It appeared in evidence that in May 1854, the respondent had asserted that she was pregnant by the libellant, and said that ho must marry her, or she would kill herself. This allegation was frequently repeated; and on the 19th November 1854, the marriage took place. On the 11th August 1855, the respondent was delivered of a full grown child.</p> <p>Upon this evidence the court below decreed a divorce on the 12th November 1855. On the 4th February 1856, the respondent, having heard of the decree, presented a petition setting forth that she had no notice or knowledge of any of the proceedings ; denying that the marriage was procured fraudulently, and with force and coercion, or that she made false representations to him to obtain the same; and declaring that the libellant proposed said’ marriage; that he cohabited with her afterwards and begot her with child, which child is still living; that he paid ■expenses of her living after the marriage, and induced her to believe he would live with her, and acknowledge her as his wife ; she therefore prayed that the decree of divorce might be opened, .and the libel and all proceedings thereon be set aside.</p> <p>To this petition the libellant filed an answer setting forth “ that he had been divorced by this court from the bonds of matrimony entered into with the said Amanda Hoffman, and that it is not within the power or jurisdiction of this court to disturb or in any way interfere with the decree made by the said court, divorcing him, the said James Hoffman, as before stated.”</p> <p>On the 10th April 1856, the court below, after argument, dismissed the respondent’s petition; and this appeal was tapen. Numerous specifications of error were assigned, the only ones, however, necessary to be noticed, appear in the opinion of the court, to wit: 1. That the libel was deficient in form and substance. 2. That the facts proved were insufficient to ground a decree of divorce.</p>

<p>Error, to the Quarter Sessions of Susquehanna county.</p> <p>This was an indictment, in the court below, against Levi Davis, Hiram Stevens, and Solomon Lott, for malicious mischief. The indictment was as follows:—</p> <p>“ Susquehanna County, ss :</p> <p>“ Of April Session, in the year of our Lord 1857.</p> <p>“The grand inquest of the Commonwealth of Pennsylvania, now sitting and inquiring for the body of the county of Susquehanna, upon their oaths and affirmations, respectively, do present, that Levi Davis, late of said county, yeoman; Hiram Stevens, late of said county, yeoman; and Solomon Lott, late of said county, yeoman — being evil disposed and malicious persons, on the 27th day of March, in the year of our Lord 1857, in the township of Lenox, and county of Susquehanna aforesaid, and within the jurisdiction of this court, with force and arms, unlawfully, wilfully, wantonly, and maliciously, did remove, take, and carry away, a certain stove, belonging to and being in a certain building, erected by the proprietors thereof, for a school-house, and for the worship of Almighty God therein, situate in said township of Lenox, and couDty aforesaid; and then and there unlawfully, wantonly, wilfully, and maliciously, did take out, remove, and carry away, certain window-sashes, with glass therein, belonging and attached to the said building; and then and there, unlawfully, wilfully, wantonly, and maliciously, did close up the windows of the said building and the door thereof, the said building then and there, and having for many years before that time been a house, used and occupied as a place for holding religious meetings, and for the worship of Almighty God; they, the said Levi Davis, Hiram Stevens, and Solomon Lott, meaning and intending by the removal of the said stove from the said building, and by taking out and carrying away the window-sashes and glass therefrom, and by closing up the windows and the door thereof, to prevent holding of religious meetings, and the worship of God therein; to the great damage and common injury and disquietude of neighbours and others who had been accustomed to attend religious meetings, and the worship of God therein, to the evil example of all others in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania.”</p> <p>The defendants were tried on this indictment, on the 9th April 1857, and having been found guilty, filed the following reasons in arrest of judgment:—</p> <p>1. The indictment in this case is without a precedent, either in English or American jurisprudence, and is defective both in form and in substance; as it sets forth no offence punishable by indictment, either at common law, or under any statute in force in Pennsylvania. The injury described, if any, being a simple trespass, and only to be redressed by civil remedies.</p> <p>2. The indictment is fatally defective in not distinctly averring who were the owners and proprietors of the building alleged to have been closed up, &c., by the defendants. Whether used for public or private purposes, the ownership resided somewhere, and should have been stated. For aught that appears by the indictment, the defendants themselves were the sole and exclusive owners of the house, and no other individuals, nor the public, had any right to use the house for religious meetings, or any other purpose.</p> <p>The court below overruled the motion in arrest of judgment, and sentenced the defendants, Davis and Stevens, to pay a fine of $5 each, and the costs of prosecution. They thereupon obtained this writ of error, and here assigned for error: 1. That the indictment was defective. 2. That the court below erred in overruling their motion in arrest of judgment.</p>

This was an appeal by The Domestic and Eoreign Missionary Society of the Protestant Episcopal Church of the United States of America, from the decree of the Orphans’ Court, confirming the report of an auditor appointed to audit, settle, and adjust the accounts of the executors of the estate of Elliott Cresson, deceased, and also to report specially who were the persons entitled to receive each respective legacy under his will, and what amount was to be paid on the same,…

This was an appeal by John E. Cresson and others, residuary legatees, under the will of Elliott Cresson, deceased, from the decree of the Orphans’ Court for the payment of certain legacies,… Held: and the whole subject was intrusted to their consideration.

This was an action of assumpsit originally brought before a justice of the peace, by Emery Houghton, for the use of John Snyder, against Thomas J. Ott and Abner D. Mohry, as makers of a non-negotiable note. The following is a copy of the instrument sued upon:— $80. Upper Saucon, July 10, 1852. We, or either of us, promise to pay Emery Houghton, or order, the sum of eighty dollars on the first day of June next, with interest till paid, without defalcation, for value received.

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action on the case, by Elisha Reeves against The Delaware, Lackawanna and Western Railroad Company, for killing and injuring the plaintiff’s.cattle, whilst lawfully crossing the defendants’ railroad.</p> <p>The terminus of the defendants’ railroad is at Great Bend, about two miles south of which it is crossed, at grade, by the Newburgh turnpike. Near this crossing there is a deep cut, and the railroad approaches it on a curve, so that it cannot be seen until almost at the intersection. For half a mile before coming to the cut, the railroad and turnpike run nearly parallel, about ten rods apart, and in plain sight of each other.</p> <p>The plaintiff was driving a drove of nearly 300 head of cattle from Great Bend, along the turnpike; and if the train had been in time, the cars would have passed him at a point where there was no danger. When within about thirty rods of the crossing, the plaintiff inquired of an employee of the company, how soon the cars would be along. He was informed they were expected soon, perhaps in five minutes. The plaintiff said he would try and get his drove over; he thought he could get a part of them over, if not the whole. Before the train approached, he succeeded in getting over one division; and whilst a second division was approaching the track, the cars came in sight, at a rate of 25 or 30 miles an hour; the whistle was blown before reaching the crossing, and this so frightened the cattle that, in spite of all efforts to restrain them, they rushed on the track, and several of them were killed, and others bruised and mangled.</p>

Error, to the District Court of Philadelphia. These were two actions of scire facias on mortgages, brought by The Guttenberg Building Association against Augustus Kupfert, the mortgagor, and Henry W. G-ault, the terre tenant; wherein the parties agreed upon the following case stated, with leave to either party to bring a writ of error. “ The plaintiffs are a corporation chartered by the Court of Common Pleas under the Act of April 22d 1850, as a Saving Fund and Building…

This was an appeal from the decree of the District Court, distributing the proceeds of a sheriff’s sale of the real estate of John Murray, Jr. It appeared from the report of the auditor appointed to report distribution of the fund in court, that, on or about the 17th September 1854, John Murray, Jr., was a member of The Washington Central Building Association, and the owner of six shares of their stock, on which he had paid $180.

<p>Appeal from the Orphans’ Court of Monroe county.</p> <p>This was an appeal by Philip Mosteller from the decree of the Orphans’ Court, in the matter of the account of the said Philip Mosteller and Peter Mosteller, administrators of the estate of William Mosteller, deceased.</p> <p>William Mosteller died intestate, on the 28th September 1844, and letters of administration upon his estate were granted to the accountants. Before the auditors, Peter Mosteller, one of the accountants, claimed a credit for $500, for work, labour and services rendered to his father, the intestate, while a member of his family, for six or seven years after he arrived at full age. This claim was contested by the heirs; and the auditor’s report allowing the said Peter Mosteller $450 for his services, having been confirmed by the court, this appeal was taken.</p>

<p>Error to the Quarter Sessions of Philadelphia.</p> <p>This was an indictment for perjury, wherein Philip Rump, the defendant, was charged with having falsely sworn, before the District Court for the city and county of Philadelphia, on the application of Daniel McShane to become a citizen of the United States) that, to his knowledge, the said Daniel McShane had resided in the United States five years immediately preceding his application to be a citizen.</p> <p>The defendant having been convicted and sentenced, obtained this writ of error, and assigned for error: 1. That no offence was charged in the indictment. 2. That the court below had no jurisdiction.</p>

<p>Appeals from tbe Common Pleas and Orphans’ Court of Northampton county.</p> <p>These were four appeals from the decrees of the Common Pleas and Orphans’ Court, in the matter of the accounts of Samuel Wilhelm, one of the executors, and trustee under the will of Peter Miller, late of Easton, Pennsylvania, deceased. Two of these appeals were taken by Alexander Miller, administrator of Peter Miller, late of Ohio, deceased; and two of them by Samuel Wilhelm, the accountant.</p> <p>Peter Miller, of Easton, died on the 3d March 1847, having made his last -will and testament, wherein, after giving legacies to certain benevolent societies, and to Samuel Wilhelm, he devised the residue of his estate to two church corporations, in trust that the real estate should not be sold, but let to good tenants, and the personal estate securely invested on bond and mortgage, the income from both to constitute a fund to accommodate farmers and mechanics with loans; and directed that, if this fund should accumulate beyond the applications made for it, the surplus should be used to erect a widows’ asylum, and a number of small brick houses, for the use of respectable widows and single women, at reduced rents.</p> <p>Of this residuary fund and trust, he constituted Samuel Wilhelm the receiver, financial agent, and manager, with specific powers and directions to lease, improve, and repair the real estate, and to receive the rents, issues, interest and profits of the real and personal, to deposit the moneys received in the Easton Bank, to draw it out for proper purposes on checks, to pay expenses, make loans, keep accounts, employ a clerk, &c.; for which he was to receive 2J per cent, for his services, and the amount necessary for a clerk and books. Provision was likewise made for the appointment of a successor to Wilhelm, for visitors, inspectors of accounts, and the procurement of an Act of Assembly for the better carrying out of the provisions of the will, if necessary, by means of a corporation, &c.</p> <p>The testator appointed Samuel Wilhelm, Philip H. Mattes, John Hoff, Dr. Silas Cook, and J. H. A. Bomberger, his executors; to whom letters testamentary were granted by the register of Northampton county, on the 4th March 1847, and they thereupon entered upon the performance of their duties. At the same time that Samuel Wilhelm took upon himself the office of executor, he also assumed the management of the real estate under the power in the will: he executed leases, made improvements and repairs, collected the rents and income, and paid the expenses.</p> <p>Shortly after the death of the testator, Samuel Wilhelm placed himself in communication with Peter Miller, of Ohio, the testator’s nephew and heir at law, he himself being the next in succession; and on the 18th February 1848, the following agreement for a division of the estate was executed between these parties:—</p> <p>“ Whereas, Peter Miller, deceased, lately died in Easton, Pennsylvania, having made a last will and testament, which has since been proved ; and whereas, it is supposed, that the disposition of the residue of the estate of the said Peter Miller, made by his said last will and testament, is not such as will be sustained in law, in consequence of which the said residue will pass and descend to the heir at law -of the said Peter Miller, deceased; and whereas,, Peter Miller, of Brookfield township, Morgan county, Ohio, claiming to be the son of John Miller, the brother of the said Peter Miller, deceased, claims to be such heir at law; and whereas, Samuel Wilhelm, of the borough of Easton, in the county of Northampton, Pennsylvania, devisee of Catharine Wilhelm, deceased, who died since the said Peter Miller, claims to be entitled to the said residue in right of the said Catharine Wilhelm, who claimed to be the first cousin of the said Peter Miller, deceased.</p> <p>“ And whereas, the said Peter Miller and the said Samuel Wilhelm have agreed that, if the said residuary disposition made by the said will shall be declared invalid, the residuary estate aforesaid shall be equally divided to and between the said Peter Miller and the said Samuel Wilhelm and their respective heirs and assigns, in equal shares.</p> <p>“Now, it is hereby agreed, for and in consideration of the premises, and of the doubts existing as to which of the parties to this agreement will be able to make out their title to the same, and to prevent litigation in relation to the same, that in the contingency of the testamentary disposition of the estate of the said Peter Miller, deceased, being decided to be invalid in whole or in part, that all the estate, real, personal, and mixed, which shall not pass under the said will, but which would descend to the heirs and legal representatives of the said Peter Miller, deceased, as his next of kin, shall be equally divided between the said Peter Miller and Samuel Wilhelm and their respective heirs and assigns for ever; and the said parties respectively covenant and agree with each other that they will respectively execute and deliver, each to the other, his heirs and assigns, the necessary conveyances, assurances, assignments, and transfers for the said estate, real, personal, and mixed, so as to vest in each of them and their respective heirs and assigns for ever an equal moiety or half part of the said estate.</p> <p>“ And it is further agreed between the parties, that legal proceedings be forthwith instituted in the name of the said Peter Miller, for the speedy determination of the rights of the said parties to the said estate, and that each of them shall contribute an equal proportion of the costs and expenses of conducting said proceedings at law.</p> <p>“ In witness whereof the said parties to these presents have hereunto set their hands and seals, this eighteenth day of February, A. D. one thousand eight hundred and forty-eight.</p> <p>“ Sealed and delivered in presence of \ us, Wm. Hackett, S. O. Cook, jun. /</p> <p>Peter Miller. Sam’l. Wilhelm.</p> <p>[Seal.]' [Seal. ”</p> <p>The validity of this agreement was attacked by the administrator of the heir at law, on the ground that it had. been unfairly and fraudulently obtained from his father, by Wilhelm.</p> <p>These parties, at the same time, entered into the following agreement with their counsel, the validity of which was not disputed :—</p> <p>“ It is hereby agreed, that James M. Porter and Matthew Hale Jones shall be employed as our attorneys, to'institute all the necessary legal proceedings to test the validity of the devises and bequests of the residue of the estate of Peter Miller, late of the borough of Easton, deceased, in Pennsylvania and New Jersey, and that their compensation shall be twenty per cent, on the total amount of the real and personal estate, which they shall recover for us, or either of us, to be paid or conveyed to them as they shall recover the several parcels or parts thereof. In the event of failure, they to make no claim on us for compensation, other than the actual expenses they shall be put to in conducting such suit or suits.</p> <p>“ Easton, Pa., February, 1848. \ “ Attest, Wm. Hackett. j</p> <p>Peter Miller. Samuel Wilhelm.”</p> <p>An ejectment was then brought in the name of Peter Miller, in the Court of Common Pleas of Northampton county, to November Term 1848, against Abraham Hillyard, the tenant in possession, the five executors, and the two congregations named as trustees in the will, for a tract of the testator’s land, situate in Forks township, which was defended by Wilhelm and the - other executors; and in August 1849, this court affirmed the judgment of the court below, declaring the residuary devise and bequest to be void, and Peter Miller, the heir at law, entitled to recover. This case of Hillyard v. Miller is reported in 10 Barr 326.</p> <p>The title of the heir at law being thus established, on the 1st September 1849, he presented his petition to the Orphans’ Court for a citation to the executors to account. On the 24th October 1849, J. II. A. Bomberger filed his separate account, which was confirmed nisi. And on the 15th November 1849, John Hoff, another of the executors, filed his separate account, which was likewise confirmed nisi.</p> <p>On the 28th February 1850, Samuel Wilhelm filed his separate account, in which he charged himself with items amounting to $87,154.37, and claimed credit for disbursements to the extent of $80,086.63, and exhibiting a balance of $7067.74 in his hands. In this account he charged no commissions for his services. Annexed thereto he returned a schedule -of bonds, stocks, notes, &c., considered good for $55,280.41, and lost and doubtful claims amounting to $5880.77. Also a memorandum of two judgment bonds, in the hands of Philip H. Mattes, another of the executors, for $1779.47. This account was confirmed nisi, and on the 26th April 1850, Isaac G. Wikoff, B. F. Arndt, and George W. Yates, were appointed auditors, to examine and, if occasion, resettle the account, and make distribution of the balance, &c.</p> <p>In the course of the examination, it was discovered, that the account contained items of credit relating to the real estate, and other matters, which were to be settled by Wilhelm, not as executor, but as trustee under the will. It was therefore agreed, that he should file an account, as trustee, in the Court of Common Pleas, and that it should be referred to the same auditors, so that both accounts might be examined, resettled, and adjusted, and distribution of the balances thereof made, at the same time.</p> <p>Accordingly, on the 29th July 1850, Samuel Wilhelm filed his account as trustee under the will, in the Court of Common Pleas, in which he charged himself with the sum of $20,665.98 received, and claimed credit for $21,468.28, paid out and retained; leaving a balance in his favour of $802.30. In this account he' charged commissions at the rate of 2-£ per cent., amounting to $1026.29. The court referred this account to the same auditors, as agreed upon by the parties.</p> <p>After various meetings and adjournments, and considerable progress having been made in the adjustment of the accounts, the parties executed the following agreement, which was laid before the auditors, and returned and filed with their report:—</p> <p>“ Whereas, Samuel Wilhelm, acting executor, &c., of Peter Miller, late of the borough of Easton, merchant, deceased, has filed and settled his account, as such executor, before the register of the county of Northampton; and has also filed and settled in the Court of Common Pleas of said county his account as trustee and receiver of the rents, issues, and profits of the real estate late of said deceased; and Isaac C. Wikoff, Benjamin E. Arndt, and George W. Yates, have been appointed by the Orphans’ Court and Court of Common Pleas, respectively, auditors, to examine and, if occasion, resettle the same, and make distribution thereupon, and have already entered upon their duties in the premises, — •</p> <p>“ It is agreed as follows: That the auditors aforesaid shall, as soon as practicable, meet and give a hearing to the said Samuel Wilhelm and the party or parties taking exception to both or either of the said accounts, as well the account of the said Samuel a3 acting executor, as also the account of the said Samuel as trustee and receiver of the rents, issues, and profits of the real estate, and thereupon the said auditors aforesaid shall proceed to resettle the same and make distribution.</p> <p>“ That the said accountant shall be charged with all the bonds and mortgages mentioned in the schedule attached to his account filed in the register’s office, that do not fall under the head of lost or doubtful, excepting the bond and mortgage of Silas C. Cook, dated the nineteenth day of April, one thousand eight hundred and forty-four, for seven thousand eight hundred and twenty-five dollars, and the note of the said Silas, dated the third day of April, one thousand eight hundred and forty-six, for one hundred and thirty-nine dollars, and also excepting Susan Gardner’s collateral assignment for thirty dollars.</p> <p>“ That Alexander Miller, administrator of his father, Peter Miller, late of Brookfield township, Morgan county and state of Ohio, deceased, shall be permitted to select from the good securities brought into the distribution by the auditors aforesaid, in full or in part of the distribution share falling to him as administrator, only such as he maiy deem proper; and the said Alexander Miller, by becoming party hereto, agrees to select from the good securities before referred to, which shall be brought into the distribution of the auditors aforesaid, at least two-thirds of the balance of the share which shall be due him after deducting all payments of money, stock, &c., up to the time of the report, provided such an amount of good securities shall be then outstanding, which securities shall be forthwith assigned and transferred to him by the said Samuel, on the report of the auditors aforesaid.</p> <p>“ That the auditors aforesaid shall pass upon both of the accounts before mentioned, and shall make distribution after deducting the payments made to all or either of the parties, by the said Samuel, on account of their distributive shares respectively.</p> <p>“ That all receipts of money by the said Samuel as executor or trustee, since the filing of his accounts aforesaid, shall be brought into the distribution, and that all moneys paid out by the said Samuel on account of said estate for the payment of which said estate was legally liable, shall be credited by the auditors aforesaid. And further, that the report of resettlement and distribution made by the said Isaac C. Wikoff, Benjamin F. Arndt, and George W. Yates, the auditors aforesaid, or the majority of them, when made and filed in the Orphans’ Court and the Court of Common Pleas of Northampton county, shall be final and conclusive upon them, and each and all of them, and that no exception or appeal shall be taken thereto by any or either of the parties interested, but the same shall be held firm and stable for ever.</p> <p>“And the said Samuel hereby agrees, on the report of the auditors aforesaid, forthwith and without objection or delay, to satisfy and resettle, pay and discharge to the parties hereto respectively, the balance of his or their distributive share or shares according to the report to be made by the auditors aforesaid.</p> <p>“And for the true performance of the covenants and agreements herein contained, the parties bind themselves firmly by these presents.</p> <p>“ In testimony whereof, we have hereunto set our hands and seals, this 18th day of November, in the year of our Lord 1850.</p> <p>“ This agreement to be attached to the report of auditors.”</p> <p>Signed, sealed, and delivered in the presence of Henry F. Steckel.” 'Seal.]</p> <p>Under this agreement the auditors proceeded, and resettled Wilhelm’s accounts as executor and trustee, making many important changes in them, which, however, are not necessary to be here stated, inasmuch as the parties were held bound by the above agreement of the 18th November 1850.</p> <p>In the distribution, Wilhelm claimed two-fifths of the balance in his hands as executor and trustee, by virtue of the agreement of the 18th February 1848. This was resisted by Alexander Miller, the administrator of Peter Miller of Ohio, who had died during the pendency of the audit, on the ground, that it had been obtained by fraud, and was otherwise void as against the policy of the law.</p> <p>Much evidence was taken by the auditors in reference to the manner in which this agreement was obtained by Wilhelm; and the following deeds, &c., were given in evidence by him, which it was contended amounted to a ratification and confirmation of that agreement. 1. A deed, dated the 5th September 1849, whereby Peter Miller of Ohio, and wife, conveyed to Samuel Wilhelm two-fifths of this estate. 2. A letter of attorney, dated the 12th December 1849, from Peter Miller and wife, to John Miller; which did not appear to have any material bearing on the case. 3. A deed of partition, dated the 27th December 1849, between Peter Miller and wife and Samuel Wilhelm. 4. Two deeds, dated the 21st November 1849, between Messrs. Porter and Jones of the one part, and Miller and Wilhelm of the other, in which, among other things, Miller and Wilhelm conveyed to Porter and Jones one-fifth of the estate. 5. A refunding-bond of Peter Miller of Ohio, to Samuel Wilhelm, dated the 12th December 1849, which acknowledged that Peter Miller had received, as his share, two-fifths of 500 shares of Easton Bank stock. 6. A receipt, dated the 25th April 1850, from Alexander Miller, administrator of Peter Miller of Ohio, to Samuel Wilhelm, for two-fifths of the proceeds of a certain tract of land, &c.</p> <p>The auditors reported that the agreement of the 18th February 1848 was obtained by fraud, imposition, and undue advantage taken of the heir at law, by Wilhelm; and that it was in plain violation of his duties as trustee under the will of the testator. They, therefore, distributed the balances in both accounts, four-fifths to Alexander Miller, administrator of Peter Miller of Ohio, .and the remaining one-fifth to be divided between Messrs. Porter and Jones.</p> <p>The court below, being of opinion that the agreement of the 18th November 1850 had made the reports of the auditors in reference to the adjustment of the accounts, conclusive between the parties, confirmed the same so far as it resettled the accounts of Wilhelm, as executor and trustee; but set aside so much of the same as rejected his claim-'to share in the distribution. And decreed two-fifths of the balance to Alexander Miller, administrator of Peter Miller of Ohio, two-fifths to Samuel Wilhelm, and the remainder to Messrs. Porter and Jones.</p> <p>From these decrees both parties appealed to this court. Alexander Miller, from so much of the decrees as admitted Wilhelm to share in the distribution; and Wilhelm, from so much of them as confirmed the report of the auditors resettling his accounts.</p>

<p>Appeals from the Common Pleas and Orphans’ Court of Northampton county.</p> <p>These were two appeals by James M. Porter, from the decrees of the Common Pleas and Orphans’ Court, disallowing the exceptions taken by him to the amount of fees charged by the auditors appointed to audit the accounts of Samuel Wilhelm, executor and testamentary trustee of Peter Miller, deceased.</p> <p>The auditors had charged for their services in the two cases $6000, to be divided in the manner specified in their report. The courts below dismissed the exceptions filed by the appellant, and confirmed the reports; being of opinion that the parties were concluded by the terms of the agreement of 18th November 1850 (fully set forth in the preceding cases) from excepting to any part of the reports, except the distribution. Erom these decrees the present appeals were taken.</p>

<p>Under the 3d section of the Act 24th January 1849, a venditioni exponas for the sale of a life estate, can only issue by the order of the proper court, on ten days’ previous notice of the application for such writ, to the tenant for life, as directed in the proviso to the 4th section.</p> <p>A sheriff’s sale of a life estate, under a venditioni exponas issued without such order and notice, is void, and confers no title upon the purchaser.</p>

This was an action of assumpsit, by Henry Imhoff, Jacob G. Imhoff, and Christian Gross, trading as Imhoff & Gross, against Louis Brown and E. Katharina Brown, his wife, upon a promissory note, made by the latter defendant.

This was an ejectment by George M. Evans and others, heirs at law of Oliver Evans, deceased, against Elhanan W. Keyser and Daniel L. Woods, the executors and devisees of J. P. D. Muhlenberg, deceased, and others, for two ninth parts of a lot of ground in the city of Philadelphia.

In June 1857, Thomas Richardson presented the following petition to the court below; whereupon a rule was granted upon The Lehigh Crane and Iron Company, to show cause why the prayer of the petitioner should not be granted. To the honourable the Judges of the Court of Quarter Sessions of Philadelphia county.

Error, to the District Court of Philadelphia. This was an action of assumpsit by Seiple & Erdman against Irwin, Shultz & Peiper, to recover the amount of a bill of goods sold and delivered to the defendants. On the 13th November 1854, the defendants purchased in plaintiffs’ store, on the usual credit, a bill of goods amounting to $173.02. The bill was purchased from one John Wilson, a salesman in the plaintiff’s store, employed to sell goods on commission.

<p>In Equity. Motion for special injunction.</p> <p>This was a bill in equity by Richard S. Coxe against The President, Directors, and Company of the Bank of Pennsylvania, and against William C. Patterson, William Lyttleton Savage, and John D. Taylor, assignees of the said bank, to restrain them from receiving the notes of the bank in payment of the debts due to it, and which passed to the assignees by virtue of a general assignment in trust for the benefit of creditors.</p> <p>The bill set forth that the complainant was the holder of Mary Reeside’s check on the bank for $15,000, dated 26th October 1857, which was presented and marked “good” by the paying teller; and that payment was subsequently demanded and refused.</p> <p>That on the 17th February 1858, the bank, having been insolvent since the 25th September 1857, and having during the interval suspended specie payments, made a general assignment for the benefit of its creditors. That a large proportion of the assets so assigned consisted of debts due to the bank, and that unless these debts were collected by the assignees, there would remain a very small sum, if any, out of which the debts due by the bank, or even a dividend thereon, could be paid by the assignees. And the complainant charged that it was the duty of the assignees to collect the said debts for that purpose; whereas the assignees denied that such was their duty, and pretended that they were required by law to receive payment in the notes issued by the bank. The complainant denied that such notes could be lawfully used in paying debts due to the bank before the assignment; and prayed for an injunction to restrain the assignees from receiving the same in payment, &c.</p> <p>The defendants filed an answer, claiming it to be their duty to permit the creditors of the bank to make payment in the notes issued by it. The complainant moved for a special injunction, which now came on to be heard.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an action on the case, by Francis W. Hughes and Patrick M. Langton against the Mine Hill and Schuylkill Haven Eailroad Company, to recover damages for the burning of property belonging to the plaintiffs, occasioned by sparks emitted from the stack of a locomotive owned by and running upon the railway of the defendants.</p> <p>The suit was commenced on the 26th March 1856, and upon the 22d April 1857, an affidavit and precipe were filed by the defendants, directing the removal of the cause into the Court of Common Pleas of Dauphin county, under the provisions of the Act of 14th April 1834: Brightly’s Purd. 132. The record was actually entered in Dauphin county on the 8th August 1857.</p> <p>On the 20th July 1857, the plaintiffs filed a declaration, and entered a rule of reference, in Schuylkill county, in accordance with which arbitrators were appointed on the 6th August 1857, and on the 5th September 1857 their award was filed in favour of the plaintiffs for $3705. On the 14th September 1857,.the Court of Common Pleas of Schuylkill county set aside the rule of reference, and all the subsequent proceedings. To reverse which order this writ was sued out by the plaintiffs below, and the same was here assigned for error.</p>

<p>A debt due to a non-resident is liable to a foreign attachment, when the debtor is within reach of our process.</p> <p>But a mere contract by a non-resident to sell property, for a certain price, to a person within our jurisdiction, is not such a debt; for the debt is not created until the contract is executed by the vendor.</p>

This was a case stated for the opinion of the court below, between the Pennsylvania State Lunatic Hospital and the Township of Franklin, in which the following facts were agreed upon, with liberty to either party to take a writ of error.

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was an action on the case, by Ogden Pratt against Amos W. Harding, to recover the amount expended by the plaintiff in constructing certain docking on a creek, the boundary of defendant’s land, over which the water flowed to the injury of premises owned by the plaintiff.</p> <p>On the 18th February 1854, the plaintiff and wife, by indenture of that date, sealed by the grantors only, conveyed to the defendant a house and lot in the village of New Milford. The deed contained the following clause:—</p> <p>“In consideration whereof, the said Amos W. Harding doth covenant and agree, to and with the said Ogden Pratt and Sarah E. his wife, their heirs and assigns, to make a good and sufficient docking along the creek side of said lot, to prevent the water from flowing over on said lot, and in case of inability or neglect in making and keeping up said docking, the said Ogden Pratt and Sarah E. his wife, and their heirs and assigns, are to have the privilege of making the same for ever; and to secure the payment of all expenses arising therefrom, they are to have the privilege of adding it to the purchase-money; and further, the lot itself shall always be security to indemnify for said expenses. It is hereby further understood and agreed, that the said Ogden Pratt and Sarah E. his wife, their heirs and assigns, reserve the right of taking the water across said lot in pipes or logs to be laid under ground, at any point where it will not interfere with buildings that said Harding may build; also reserve the right and privilege of making said docking, and the expenses shall be a continual lien on said lot of land.”</p> <p>In June 1855, there were heavy freshets in the creek running along the premises, and much damage was done to the plaintiff by the overflowing of the water. On the 25th July 1855, Pratt gave notice to Harding that he must build the docking, pursuant to his agreement. After a lapse of two or three weeks, the defendant having neglected to comply with this notice, the plaintiff went on and constructed the docking, and brought this suit to recover the expenses thereof.</p> <p>On the trial, the court below being of opinion that a personal action could not be maintained against the defendant, ruled out the evidence of plaintiff’s having constructed the docking, and of the value thereof; and charged the jury that their verdict must be for the defendant, which was here assigned for error.</p>

<p>Error to the Common Pleas of Berks county.</p> <p>These were actions of assumpsit, the first by John H. Kelly against Charles Rick, on two promissory notes made by George Fox, and purporting to be endorsed by Abraham Herbein; and the second by Jeremiah Fisher against the same defendant, on a note made by George Fox, and purporting to be endorsed by Abraham Herbein and Jacob Rahn.</p> <p>. These notes tvere purchased by the plaintiff from the defendant, without his endorsement; and the endorsements of Herbein and Rahn having been forged, they brought these actions to recover back the consideration paid for the notes. Neither of the parties had any knowledge of the forgeries at the time of the sale of the notes.</p> <p>The notes matured in March and April 1856, about which time the plaintiffs had notice from the alleged endorsers that their endorsements had been forged; but no notice thereof was given to the defendant, nor was there any offer shown to return the notes to him, previously to the bringing of these suits, which were commenced on the 27th May 1856.</p> <p>On the trial, the alleged endorsers were offered as witnesses by the plaintiffs to prove the forgeries, and admitted, notwithstanding an objection by the defendant, to which he excepted.</p> <p>The defendant offered to prove in Kelly’s case, that the plaintiff had renewed one of the notes for five days; and also to prove the condition of Eox’s property at the time the notes matured, and that others of his creditors had about that time secured their claims. The learned judge ruled out this testimony, and the defendant excepted.</p> <p>The court below charged the jury that notice of the forgeries and a tender of the notes to the defendant were not necessary in order to maintain these actions. To which the defendant excepted; and verdicts and judgments having been rendered in favour of the plaintiffs, the defendant sued out these writs, and here assigned for error: 1. The admission of the alleged endorsers as witnesses. 2. The rejection of the evidence offered by the defendant. 3. The charge of the court.</p>

<p>Error to the Common Pleas of BerTcs county.</p> <p>This was an action of assumpsit, by the Reading Savings Bank against Jacob Leibersperger, as endorser of a promissory note made by Charles Seitel.</p> <p>The plaintiff filed a declaration and copy of the note sued on, as follows:—</p> <p>$1000.00 Reading, October 6, 185T.</p> <p>Thirty days after date, I promise to pay to the order of Jacob Leibersperger, at the Reading Savings Bank, the sum of one thousand dollars, without defalcation, for value received.</p> <p>Credit the drawer, Charles Seitel.</p> <p>Jacob Leibersperger,</p> <p>Endorsed,</p> <p>Jacob Leibersperger,</p> <p>Henry Dreifoose.</p> <p>To this the defendant put in the following affidavit of defence :—</p> <p>“ Jacob Leibersperger being duly sworn, according to law, doth depose and say, that he has a just and legal defence to the plaintiff’s claim in the above-stated case, the nature and character of which is as follows: — That on or about the 6th day of October, A. D. one thousand eight hundred and fifty-seven, he endorsed an accommodation note for Charles Seitel, of which Charles Seitel was the drawer, for two hundred dollars, but he never did then, or at any other time, endorse a note for said Charles Seitel, for one thousand dollars, nor such a note as the one purports to be on which this suit is brought, and a copy of which is filed, nor did he ever endorse any such note, or any other note, to or for Henry Dreifoose, who is alleged to have endorsed the same to the plaintiffs ; that he never gave or delivered any note to the said Henry Dreifoose, neither did he receive value of any kind for such a note as the one on which this suit is brought from the plaintiffs, or from Henry Dreifoose, or from Charles Seitel.</p> <p>“ Jacob Leibersperger.”</p> <p>The court below gave judgment for the plaintiff, for want of a sufficient affidavit of defence, which was here assigned for error.</p>

<p>Error to the Common Pleas of Lancaster county.</p> <p>These were two amicable actions of debt, the one, by the Board of Directors of the Common Schools of the City of Lancaster against Horace Rathvon, assignee of the Lancaster Bank; and the other, by the Mayor, Aldermen and Citizens of Lancaster against the same defendant; wherein the parties agreed upon the following statement of facts, for the purpose of settling the question of law arising thereon, without regard to form, as if the same had been found by special verdict, with leave to sue out a writ of error, without bail.</p> <p>“ The Lancaster Bank, on the 3d day of February, A. D. 1857, made and executed a voluntary assignment of all its property, real and personal, for the benefit of its creditors, to the said Horace Rathvon. The said assignment was duly acknowledged and recorded, and the trust accepted by the said Horace Rathvon, who has ever since been, and is now, engaged in the execution of said trust.</p> <p>“ The personal property and assets, exclusive of real estate, which were in his hands as assignee as aforesaid, at the time of the assessment of tax hereinafter mentioned, amounted to the sum of $177,151 (one hundred and seventy-seven thousand one hundred and fifty-one dollars), composed of various items, which are set out in a schedule hereto annexed, and made part of this case stated.</p> <p>“ The Board of Directors of the Common Schools of the City of Lancaster, in which the said Lancaster Bank was situated, and in which the said assignee resides and is engaged in the execution of his trust, since the execution of the said assignment, viz., on the 7th day of May, A. D. 1857, assessed upon the said assets, objects, and things in the said schedule mentioned, in the hands of the said Horace Rathvon, assignee as aforesaid, a school tax for the year 1857.</p> <p>“ If said assets, objects, and things in the said schedule mentioned, are so liable to be taxed for school purposes, then judgment to be entered for the sum of seven hundred and eight dollars and sixty cents ($708.60) against the defendant.</p> <p>“ If any portion of said assets, objects, and things in said schedule mentioned are so liable, and not all, then judgment to be entered against the defendant for the sum of forty cents on every one hundred dollars of the value of such portion.</p> <p>“ If neither the whole, nor any portion of the assets, objects, and things in said schedule mentioned ar.e so liable, then judgment to be entered against the plaintiffs. The costs to follow the judgment.</p> <p>“ The said assignment and all Acts of Assembly relative to the subjects of this case stated are made parts of it.</p> <p>“ The liabilities of the said bank exceed the assets in the hands of the assignee.</p> <p>“ All the taxes on the real estate of the said bank have been paid, and the bonus required by its charter.”</p> <p>Annexed to the case stated was the following schedule of the assets in the hands of the assignee at the time of the said assessment, and their value: — ■</p> <p>“ Bills receivable.....$177,151.00</p> <p>“(Of the above, $38,054 have been paid off since the assessment in Lancaster Bank notes, and the remainder may be realized in Lancaster Bank notes.)”</p> <p>In the case of The Mayor, Aldermen, and Citizens of Lancaster, the tax assessed amounted to $1771.51.</p> <p>The court below gave judgment for the plaintiffs; whereupon the defendant removed the causes to this court, and here assigned the same for error.</p>

This case was previously before the court, and is reported in 4 Casey 480. The facts presented on the second trial of the cause were the same as on the former trial.

<p>Error to the Common Pleas of Clearfield county.</p> <p>This was an action of replevin by Thomas Ralston and Robert Beatty, trading as Ralston & Beatty, against John M. Chase, for two rafts of white-pine timber, valued at $300.</p> <p>On the 12th December 1856, one Daniel Britton, who was in possession of a tract of timber land, and engaged in making timber, entered into a written contract with the plaintiffs below, whereby he agreed to sell them 7000 feet of timber, at three cents per foot, 4000 feet of which were then made. After the execution of the contract, the plaintiffs sent their agent, Manning Stevenson, Jr., to receive possession of the timber already'made; witnesses were called, and in their presence the timber was delivered and marked with the plaintiffs’ mark “R. & L.” A schedule of the estimated number and length of the sticks was also made; and Britton went on to manufacture the remainder of the timber called for by his contract. There was no snow on the ground at the time of this delivery, so that it was impossible to remove it; nor was there any timber-hauling in that neighbourhood prior to January 1857.</p> <p>On the 15th January 1857, Isaac Dunlop, a constable, levied upon the 4000 feet of timber marked R. & L., with other timber 'upon the ground, by virtue of two executions issued by a justice of the peace, against Daniel Britton, on judgments in favour of John M. Chase, the defendant below. This timber was sold for $100, and purchased by the defendant, whereupon the plaintiffs issued this writ of replevin for the property which they claimed under their contract.</p> <p>The defendant pleaded property in himself; and the only question made on the trial was, as the sufficiency of the delivery. On this subject the court below (Burnside, P. J.) instructed the jury as follows:—</p> <p>“ To constitute a valid sale of personal property, the possession must pass at the time of the sale. If there is no change of possession, any creditor may levy upon and sell it. Thus if I sell any one of you a horse, and you pay me the price agreed upon; if the horse is left in my possession, any one of my creditors may levy upon and sell him, and the purchaser at the sale would hold the horse, because, no possession having been delivered, the sale is deemed fraudulent in law.</p> <p>“ But the possession of some personal property cannot thus be delivered. Such, for example, is timber made in the woods. It is not pretended that Ralston has not complied with his contract; that he has not made the payments as he agreed to do. Did he take such possession of it as he could ?</p> <p>“ As we have said, timber made, and lying in the woods, is not the subject of manual delivery; but everything in the power of the parties should be done, to indicate a change of possession. A symbolical delivery of a ship at sea, has been held to be sufficient. In this case, if you believe the evidence, the symbolical possession was given, and the plaintiffs exercised acts of ownership over the timber, by marking it. Was there such a delivery and change of possession as the nature of the property was capable of? It is true, it was not hauled to the rafting-ground, immediately; but the evidence shows that the plaintiffs were engaged in hauling their other timber, and after the levy was made, which was on the 15th of January, they could no longer touch this.</p> <p>“ As before stated, your verdict will depend on the evidence as to the delivery and change of possession. If the plaintiffs took such possession as the nature of the property was capable of, they are entitled to your verdict. If they did not, then you will find for the defendant.</p> <p>“ I cannot instruct you, as verbally requested, that this sale was a legal fraud. If it was made to hinder and delay creditors, and you can find the proof in the evidence that such was the purpose of the sale, then it would be fraudulent.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $300, the defendant sued out this writ, and here assigned such charge for error.</p>