Volume 32 — Pennsylvania State Reports

On the 8th June 1855, the court below confirmed a report of viewers laying out a public road, leading from another public road between John Smeltzer’s barns to the Saltsburg road, in Kiskiminitas township, Armstrong county, through the improved lands of David Eindley; and directed the same to be opened of the width of thirty .feet.

<p>A promise to pay the debt of another, in consideration of forbearance, is not binding, unless accepted by the other party: there must be a mutual agreement, the consideration being promise for promise; to make it effective, both parties must be bound.</p>

This was an action of trespass de bonis asportatis, by Jackson Bell against William Welsh, sheriff of Westmoreland county, for taking and carrying away sixty cords of chestnut oak bark, of the value of $300. In the fall of 1854, Jackson Bell, the plaintiff, agreed to sell 100 cords of tan bark to one John Kestner, at- $4.50 per cord, to be delivered on the bank of the Pennsylvania Canal.

<p>Errur, to the Common Pleas of Somerset county.*</p> <p>This was an action of covenant by William Henry against the administrators of Joshua E. Cox, deceased. ■</p> <p>The jury found for plaintiff, $ 1881.11, and judgment was entered upon the verdict.</p> <p>The defendants removed the cause to this court, and assigned, inter alia, that the court erred in admitting the evidence contained in certain hills of exception, the nature of which sufficiently appears in the opinion of the court, but which the reporter is unable, from the loss of the paper-books, more fully to state.</p>

This was an action of assumpsit, by The Pittsburgh and Connellsville Railroad Company against Matthew Byers, to recover the amount of three shares of the capital stock of the company, subscribed for by the defendant, on the 13th June 1847. Notice to pay up the subscriptions was published on the 1st March 1857, and this suit was brought on the 16th April 1857. The defendant pleaded, inter alia, the statute of limitations.

This was an action of assumpsit, by The Pittsburgh and Connellsville Railroad Company, against James McCully, to recover a subscription for fifty shares of the capital stock of the company, made by James Crossan, in the defendant’s name, on the 9th June 1846.

<p>A., by his will, devised certain real estate to his widow for life, with power to dispose of the same by will to such persons as she might appoint, with remainder over, in default of such appointment; an Act of Assembly, subsequently passed, without notice to the remainder-men, some of whom were minors, authorized two persons, as trustees, to sell and convey the premises, and dispose of the proceeds according to the directions of the will: Held, that this was not a valid exercise of legislative power, and that a good title could not be made under the act.</p>

This was an appeal by Eli J. Baily, administrator de bonis non of John Cock, deceased, from the decree of the court below directing a sale of the real estate of William E. Coplan, deceased, for the payment of debts. Eli J. Baily, as administrator of John Cock, deceased, on the 13th December 1856, issued a fieri facias, upon a judgment in favor of his intestate, against William E. Coplan, for $2196.42, and levied upon the real estate of the said Coplan, who was then deceased.

This was an ejectment by George Cadwalader against William J. Berkheiser, for a tract of 118 acres 11 perches, in Gaskill township, Jefferson county.

<p>A county commissioner may purchase at a treasurer’s sale of unseated land, and take the title in his own right, provided he hid more than the taxes and costs: 12 Harris 145.</p> <p>After the expiration of a county treasurer’s term of office, and his successor has been duly qualified, a sale by him of unseated lands is void.</p> <p>Unseated lands can only be sold by the county treasurers, in pursuance of public notice, and by open vendue; they have no authority to make private sales.</p> <p>A redemption, after an invalid sale, does not strengthen the owner’s title.</p> <p>Where, after an invalid sale of unseated lands to the county, the commissioners, treating it as a nullity, continued to tax the land, a county commissioner is competent to purchase at a regular treasurer’s sale founded on such new assessment; and is not estopped from setting up a title thus acquired against the former owner.</p> <p>An estoppel can only be pleaded by one who was adversely affected by the act which constitutes it. Consequences which result from a party’s own mistake or neglect are not ground of estoppel.</p> <p>An owner of unseated lands is bound to take notice of the statutes authorizing it to be sold for taxes, and of the entries in the county commissioners’ books.</p>

<p>A sale of unseated lands for taxes will pass the title, though assessed in a wrong name, or by a wrong number, if otherwise designated so as to be capable of identification.</p> <p>The identity of the tract assessed and sold, is a question of fact for the jury.</p> <p>The designation will be sufficient, if it afford the means of identification, and do not positively mislead the owner.</p> <p>An assessment of a tract of donation land by a wrong number will not vitiate the sale, if there be any other designation by which it can be identified.</p>

This was an ejectment by Edward Pendleton, trustee of Maria Cooper, against Thomas Richey, and others, for a tract of 450 acres, in Richland township, Venango county. Held: and the benefits of it enjoyed, by the defendants ever since, they cannot now repudiate it in this case, and claim title and improvements again under the same sale. 3.

This was an action on the case by John Palmer against James H. Silverthorn, to recover the value of an ox, alleged to have been lost by the negligence of the defendant. The parties, in 1856, were the owners of adjoining lands in Conneaut township; their improvements did not extend up to the boundary line. On the 19th April 1856, the plaintiff built a fence one-half of the distance between them, and notified the defendant to build the other half, which he refused to do.

<p>To give title to one of several co-heirs under the statute of limitations, there must he an actual ouster and disseisin of the other heirs.</p> <p>To establish an ouster, in such case, there must be some plain, decisive, unequivocal act or conduct of the party claiming, amounting to an adverse and wrongful possession in himself, and disseisin of his co-heirs.</p> <p>An acknowledgment by the widow, and one of the co-heirs in possession, that the party claiming was the owner of the premises, and that they held under him, is not sufficient to establish an ouster by such party of his co-heirs.</p>

<p>Error, to the District Court of Allegheny county.</p> <p>These were two actions of assumpsit, brought by The Mercantile Mutual Insurance Company of Philadelphia, the one against Mark Sterling, as endorser of a premium note for $600, made by P. A. Alford, captain, and for the owners of the steamboat White Cloud; and the other against Caldwell & Brother, as endorsers of a premium note for $450, made by Mark Sterling, for the steamboat Paul Jones, and owners. .</p> <p>The notes sued upon were as follows:—</p> <p>“ $600. Pittsburgh, March 4th 1857.</p> <p>Nine months after date, we promise to pay to the order of Mark Sterling, six hundred dollars, without defalcation, for value received. Payable at the Pittsburgh Trust Co.</p> <p>White Cloud.</p> <p>P. A. Aleord, Capt. boat and owners. (Endorsed) “M. Sterling.”</p> <p>“ $450. Pittsburgh, February 7, 1857.</p> <p>Nine months after date, we promise to pay to the order of Caldwell & Bro. four hundred and fifty dollars, without defalcation, for value received.</p> <p>Payable at the office of Wm. P. Jones, agent Mercantile Insurance Co., Pittsburgh.</p> <p>For steamboat Paul Jones, and owners,</p> <p>M. Sterling.</p> <p>(Endorsed) “ Caldwell & Bro.”</p> <p>In the first of these cases, Sterling, the defendant, put in the following affidavit of defence; and a similar affidavit was filed by-Caldwell & Brother, in the other case:—</p> <p>Mark Sterling, defendant in above case, being duly sworn, according to law, saith: that he hath a just and legal defence to the whole of plaintiff’s claim in the above case, as he is instructed and believes; that defendant is sued as endorser of a note drawn by P. A. Alford, Captain, and for the owners of steamboat “ White Cloud,” to the order of defendant, for the sum of $600, dated at Pittsburgh, March 4, 1867, at nine months; that said note was given to William P. Jones, agent of the plaintiffs, for the full amount of one year’s insurance of steamboat “White Cloud;” which insurance was effected on the 4th of March 1857, and would expire on the 4th of March 1858. The plaintiffs (the Mercantile Mutual Insurance Company of Philadelphia), during the fall of A. D. 1857, failed, and are utterly unable to meet their liabilities; and deponent is informed, and verily believes, that during the whole year of A. D. 1857, said Insurance Company was insolvent, and utterly unable to pay any losses that might have happened on said steamboat, she being insured for about $6500, and that said company was a fraudulent corporation, without any real means or ability to pay losses or other liabilities, as your deponent is informed and believes. Your deponent is unable to state the precise time of the failure of said company, but believes, from information received, that it was in the fall of A. D. 1857, about five or six months before the expiration of the policy of insurance. M. Sterling.</p> <p>Sworn and subscribed before me, this 2d day of June 1858. '</p> <p>John Birmingham, Prothonotary.</p> <p>The rule of the court below, on the subject of affidavits of defence, provides as follows: that — “ In all actions hereafter instituted in this court, on bills, notes, bonds, or other instruments of writing for the payment of money, on book accounts, in all actions on contracts for the loan or advance of money, whether the same be in writing or not, in all actions of scire facias on mortgages, and liens of mechanics and material-men, under the Act of 17th March 1856, and the various supplements thereto, and in all actions of debt or scire facias on recognisances, judgments, or other records, the plaintiff may enter judgment by default, at any time after the return day and ten days’ service of the writ; provided, he has filed a declaration, if a declaration be necessary, and provided the writ has been duly served; notwithstanding an appearance by attorney, unless the defendant shall have previously filed an affidavit of defence, stating therein, specifically and at length, the nature and character of the same.”</p> <p>The court below gave judgment for the plaintiff, in both cases, for want of a sufficient affidavit of defence; which was herb assigned for error.</p>

<p>A recital, in a declaration, of an executed or past consideration, is not usually traversable, and requires little certainty either of name, place, person, or subject-matter.</p> <p>The plea of non est factum is a nullity in an action of debt on simple contract.</p> <p>The plea of payment admits the cause of action as stated in the declaration, and throws the affirmative of the issue on the defendant.</p>

This was an action of trespass, by James Gr. McElroy against John Wilson, Jr., a constable, and Robert A. Hunter, for levying on and selling the plaintiff’s goods, in disregard of his claim for the benefit of the exemption law of 1849. On the 26th October 1855, Robert A. Hunter, a judgment-creditor of the plaintiff, issued an execution against him, and placed it in the hands of Wilson, the other defendant, who levied on a set of blacksmith tools, axes, &c., in his shop.

This was a scire facias, to revive a judgment entered on the 11th of October 1850, in favour of Benjamin Glyde, against Jacob Keister and Harriet his wife, on the following bond and warrant of attorney :— “ Know all men by these presents, that we, Jacob Keister, of Allegheny county, Pennsylvania, and H. Keister, wife of the said Jacob, are held and firmly bound unto Benjamin Glyde, in the sum of six hundred dollars, to be paid to the said Benjamin Glyde, his certain…

This was an appeal by Campbell, Bredin & Co., from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of Thomas M. Wolf. On the 1st February 1855, two judgments were entered in favour of Thomas McCoy, against Thomas M. Wolf, to December Term 1854, Nos. 172 and 173; the former for $2023.33, with interest and costs; and the latter for $2046.66, with interest and costs.

Error, to the Common Pleas of Armstrong county. This was an action on the case by Lydia Ann Burford, by her father and next friend, John Burford, against Robert Wible, for slander, in charging “ That she had gone nine miles from home, one night, to four different colliers’ shanties, and that she had gone to bed to them.” The defendant pleaded not guilty, and justification.

This was an indictment under the 28th section of the Act of 31st March 1856 (Brightly’s Purd. 1189, pi. 28), against Christian Genkinger and Magdalina Scheible, for keeping and maintaining a house where spirituous liquors were sold and drank, and then and there selling the same without license.

Appeal in Equity from tbe Common Pleas of Indiana county. This was a bill in equity by William M. Lloyd, Robert B. Johnston, and William Jack, trading as Bell, Johnston, Jack & Co., against Archibald Galbraith, David Prosser, and the firm of Bell, Smith & Co., for a decree of subrogation.

This was an action on the case by Thomas Stophel against Henry Rodgers, for negligence in taking care of a quantity of lumber intrusted to him, as a wharfinger, whereby it was lost to the plaintiff. Henry Rodgers, the defendant, was the owner of a piece of ground adjoining the Pennsylvania Canal, in the village of Nineveh, Indiana county. Persons in the neighbourhood had been in the habit of using it as a place of deposit for lumber, intended to be shipped by the canal.

This was an action of assumpsit, by Robert T. Sterrett against Susan M. Brewster, surviving administratrix of Alexander W. Brewster, deceased, on the following due-bills :— “ Erie, Pa.,- Dec. 20, 1849. “ $500. On settlement of a former note, due to Robert T. Sterrett, or order, five hundred dollars, with interest, for value received. Mehaffey & Brewster.” “Erie, Pa., Feb. 28, 1851. “ $193.

This was an appeal by Thomas Mellon, assignee of William Larimer, Jr., from the decree of the court below, distributing the fund in his hands. On the 6th January 1855, William Larimer, Jr., made a general assignment of all his estate, to the appellant, in trust for the benefit of his creditors. On the 31st January 1857, the trustee filed his account in the court below, which, after confirmation, was referred to auditors, to report distribution.

<p>It is as much the duty of a warrantee to return his survey within a reasonable time, as it is to make it on the ground. The consequence of his negligence is that he is postponed to an intervening right which is followed up with diligence.</p> <p>It is the duty of a settler to define his claim, and, if he fail to perform this duty, a subsequent warrantee or settler may compel him to do it, by calling on him to designate his boundaries; when, if he neglect to do it, he cannot complain that land has been taken away from him which he meant to appropriate.</p> <p>But a warrantee, who surveys any part of a prior settler’s claim without first calling on him to define his boundaries, acquires no title thereto.</p> <p>An unsworn copy of án unofiieial survey is not evidence; nor are depositions taken before the board <5f property.</p> <p>Consentable lines are easily proved; but to submit a question of a consent-able line to the jury, without appropriate evidence, is error.</p> <p>If a plaintiff in ejectment include in his writ more land than the defendant claims, and there be no disclaimer or surrender until the trial, the plaintiff, whatever the result as to the contested part of the land, will be entitled to recover costs.</p>

In Equity. This was a bill in equity, exhibited by The County of Crawford against The Pittsburgh and Erie Railroad Company and its officers, for the rescission of a subscription of $200,000 to the capital stock of the company, under which bonds to the amount of $30,000 had been actually signed and delivered.

<p>In Equity. This was a bill in equity exhibited by The County of Lawrence against The North-Western Railroad Company, John Thomas, George W. McMahan, Samuel H. Kneas, Michael Malone, Israel Painter, John Clarke, B. B. G-onder, Anthony- Brinks, Alexander M. White, and John Moorehead, praying that the defendants might be enjoined from disposing of $200,000 worth of the bonds of the county of Lawrence, issued in payment of a subscription to the stock of the said railroad company; and that it might be decreed that the said subscription was made, and that the said bonds were issued without authority, and that they might he delivered up and cancelled; and that if they had been delivered to the other defendants, at a price less than their par value, the said parties might be compelled to account and pay for the same at the par value thereof.</p> <p>The defendants' answered the bill; and from the bill, answers, exhibits, reports of the said company, and testimony taken, the Examiner reported the following facts :—</p> <p>The North-Western Railroad Company was incorporated by Act of 9th February 1853; invested with all the powers, and subjected to -all the duties, restrictions, and regulations, prescribed by the general railroad law of the 19th February 1849, so far as the same were not thereby altered and supplied.</p> <p>It was provided, that the capital stock should consist of 20,000 shares of $50 each, with the privilege of increasing the same to a sum not exceeding $2,000,000. By a supplemental act passed the 10th April 1856, they were authorized to increase their capital stock $1^000,000; and were further “empowered to secure the payment of any or all bonds issued by said company, by a mortgage or mortgages upon their road, or any part thereof, with its franchises, as they might deem necessary.”</p> <p>By Act 18th April 1853, the City of Philadelphia was authorized to subscribe for not more than 15,000 shares of the stock of the company; and was permitted to be represented at elections, and other meetings of the company, by agents duly authorized to act for the said city. And it was further provided, that any corporation that should be possessed of 5000 shares, or more, of the said stock, should, in lieu of voting at the general elections of the company, be entitled to elect one manager for every 5000 shares so held; and that no corporation should be entitled to more than three managers, but a majority of the managers should at all times be elected by the private stockholders.</p> <p>By the act of incorporation, the company was empowered to construct a railroad “ from some point on the Pennsylvania, or the Allegheny Portage Railroad, at or west of Johnstown, by the way of Butler, to the Pennsylvania and Ohio state line, at some point on the western boundary of Lawrence county, and by the most direct and- eligible route.”</p> <p>The 7th section, under which the County of Lawrence made her subscription, provided as follows: — “ That the counties through parts of which said railroad may pass, shall be, and they are hereby severally authorized to subscribe to the capital stock of said railroad company, and to make payments on such terms and in such manner as may be agreed upon by said company and the. proper county: Provided, that the amount of subscription of any county shall not exceed ten per cent, of the assessed valuation thereof; and that before any such subscription is made, the amount thereof shall be fixed and determined by one grand jury of the proper county, and approved by the same; upon the report of such grand jury being filed, the county commissioners may carry the same into effect, by making, in the name of the county, the subscription so directed by the said grand jury: Provided, that whenever bonds of the respective counties are given in payment of subscriptions, the same shall not be sold by said railroad company at less than par value; and no bonds shall be in less amount than one hundred dollars; and such bonds shall not be subject to taxation until the clear profits of said railroad shall amount to six per cent, upon the cost thereof; and that all subscriptions made or to be made in the name of any county, shall be held and deemed valid if made by a majority of the commissioners of the respective counties.” Pamph. L. 54.</p> <p>On the 21st May 1853, the grand jury of Lawrence county, were induced by the representatives of Charles G. Sullivan, George - W. Smith, and James D. Clarke, three of the commissioners named in the act of incorporation to receive subscriptions to the stock of the company, to pass the following resolution:—</p> <p>“ Resolved, That the commissioners of the county of Lawrence, state of Pennsylvania, be and are hereby recommended to subscribe stock to the North-Western Railroad to the amount of two hundred thousand dollars, agreeably to Act of Assembly incorporating said North-Western Railroad Company, and to issue bonds for the payment of said stock; making the conditions such as will best promote the interest of said railroad company and the county of Lawrence.”</p> <p>At this time, the company had not been organized; the act of incorporation was not before the grand jury; and the resolution was passed with reluctance, five of the members voting against it.</p> <p>The company was organized on the 1st June 1853, Sullivan being elected the president, and continuing in office from that date until the 12th January 1855.</p> <p>On the 20th August 1853, two of the county commissioners made the following subscription to the capital stock of the railroad, at the urgent solicitation of Sullivan, the president, and on his representations that it would otherwise be impossible to procure a subscription from the City of Philadelphia, and that the bonds to be issued by Lawrence County would never be used, inasmuch as the Act of Assembly prohibited the selling of them for less than their par value.</p> <p>“ By authority of an Act of the General Assembly of the Commonwealth of Pennsylvania, passed the 9th day of February, A. d. one thousand eight hundred and fifty-three, entitled ‘ An Act to incorporate the North-Western Railroad Company,’ and by virtue of the action of the grand jury of the county of Lawrence, had at May Sessions, A. D. one thousand eight hundred and fifty-three, at the court of said county, fixing and determining the amount of subscription to be made to the said North-Western Railroad Company by said county of Lawrence, we the undersigned, commissioners of said county, do hereby subscribe for and in the name of the county of Lawrence, to the capital stock of the NorthWestern Railroad Company, the sum of two hundred thousand dollars, being four thousand shares in said capital stock. It is understood that, whenever the amount of this subscription is required from the county of Lawrence by the said company, it is to be paid in the bonds of this county — to be given in sums of not less than one thousand dollars each, payable in twenty years after date, or such other time after date as may be agreed upon between the commissioners of Lawrence county and said railroad company. The interest on said bonds to be paid semi-annually, and said interest to be paid by said railroad company until such time as the North-Western Railroad is completed.</p> <p>“ In testimony whereof, we have hereunto set our hands and affixed the seal of the said county of Lawrence this 20th day of August, A. D. one thousand eight hundred and fifty-three.</p> <p>John Randolph,</p> <p>[l. s.] Wm. R. Wallace,</p> <p>Commissioners. ’ ’</p> <p>“Attest — J. W. Reynolds, Clerk.”</p> <p>This subscription was not made on the books of the company, but on a loose piece of paper, and was not agreed to by the other county commissioner. It was never entered on the minutes of the commissioners; but, under it, they subsequently issued, from time to time, to the railroad company, the bonds of the county, to the amount of $200,000, in the following form:—</p> <p>$1000. UNITED STATES OF AMERICA. $1000.</p> <p>No. — County of Lawrence, Pennsylvania. No. — '</p> <p>BONDS ISSUED EOU STOCK IN THE</p> <p>NORTH-WESTERN .RAILROAD COMPANY.</p> <p>EAITH OP THE COUNTY AND STOCK IN THE COMPANY PLEDGED.</p> <p>Know all men by these presents, that the county of Lawrence, in the Commonwealth of Pennsylvania, is indebted to the NorthWestern Railroad Company in the full and just sum of one thousand dollars, which sum of money said county agrees and promises to pay, twenty years after the date hereof, to the said NorthWestern Railroad Company, or bearer, with interest, at the rate of six per centum per annum, payable semi-annually, on the first day of January and July, at the office of the Pennsylvania Railroad Company, in the city of Philadelphia, upon the delivery of the coupons severally hereto annexed; for which payments of principal and interest well and truly to be made, the faith, credit, and property of the said county of Lawrence are hereby solemnly pledged under the authority of an Act of Assembly of this Commonwealth, entitled an Act to incorporate the North-Western Railroad Company, which said act was approved the ninth day of February, A. d. eighteen hundred and fifty-three.</p> <p>In testimony whereof, and pursuant to said act of the legislature of Pennsylvania, and resolutions of the county commissioners, in</p> <p>their official capacity, passed the---, the</p> <p>commissioners of said county have signed, and the clerk of said commissioners has countersigned these presents, and have hereto</p> <p>caused the seal of said county to be affixed, this - day of</p> <p>-, A. D. one thousand eight hundred and fifty-.</p> <p>j</p> <p>, ?</p> <p> Commissioners of Lawrence eounty. </p> <p> Cleric of Commissioners. </p> <p>The president of the company desired to have these bonds in the treasury, in order to procure the Philadelphia subscription; but assured the county commissioners that they should remain there, until expended for work done upon the road in Lawrence county.</p> <p>The company disposed of $198,000 of these bonds; $58,500 at par, and $189,500 at the rate of 64 per cent. They were paid away to contractors on the road, whose estimates were increased in amount, so as to approximate to the value of the bonds at par; but they were in reality valued at 64 per cent., an addition of 56£ per cent, being made to the estimates of the contractors. $2000 of these bonds still remained in the’hands of the company at the time of filing the bill.</p> <p>The defendants Malone, Painter, Clarke, Gonder, and Moore-head were parties to whom a portion of these bonds had been transferred at 64 per cent. They rested their defence on a plea to the jurisdiction of the court.</p> <p>The whole amount of work done on the road, in Lawrence county, did not exceed $16,000 in value. The county never received any certificates of stock from the company; nor voted at any corporate election; nor was the said county ever represented in the company.</p>

Error in the Common Pleas of Allegheny county. This was a proceeding under the Act of 9th February 1848, by Christian Ihmsen against The Monongahela Navigation Company, for the assessment of the damages to his property, occasioned by the construction of the works of the company.

<p>A defendant gave a cautionary judgment, in a penal sum, to secure future advances, and all costs of collection, including attorney’s commission of five per cent, on the real debt and interest; a scire facias was issued to revive this judgment, upon which the parties liquidated the amount of the advances, and the defendant agreed that judgment of revival should be entered for that sum; payments were subsequently made on account: Held, that on a fieri facias to levy the balance due, the attorney’s commission of five per cent, was not recoverable. They should have been included in the judgment.</p>

This was an appeal by Garrett & Martin from the decree of the court below, distributing the proceeds of a sheriff’s sale of the personal property of W. Scott Hay. On the 17th December 1857, afi. fa. at the suit of Rowland Norton, administrator of Albert Ranson, deceased, for $168.67, was levied on the goods of W. Scott Hay, the defendant.

This was a judgment entered in the court below in favour of Mary M. Foster against Horace R. Riddle and S. H. Riddle, on a bond and warrant of attorney, in $10,000, conditioned for the payment of $5500, in six annual instalments, from the 6th May 1853.

This was an action on the case for malicious prosecution, by George Householder against Thomas H. Baird. The declaration, as originally framed, was in case for malicious prosecution; and on the trial the court permitted an amendment to be filed, charging a malicious arrest on a criminal warrant.

<p>Under the lateral railroad law of 25th May 1832, the viewers, and, in case of appeal, the court and jury, are to decide whether the proposed road is necessary and useful for public or private purposes, and to assess the damages of the intervening owner ; but they have nothing to do with the location of the road; that is to be done by the petitioner on his own responsibility.</p> <p>The court is bound to appoint viewers, if the petitioner bring his case within the act.</p> <p>A party cannot file exceptions to a report of viewers, and at the same time from their report.</p> <p>On the trial of the appeal, evidence of what was usually paid for similar privileges, is inadmissible; the party is only entitled to compensation for the injury actually sustained by the location of the road through his land.</p> <p>The lateral railroad acts are constitutional.</p>

This case was originally brought before a justice of the peace by Dr. Thomas Murry against the Directors of the House of Employment of Westmoreland county, for medical attendance to three alleged paupers, Parrel, Prew, and Sullivan, without a previous order of relief. The case came into the court below by appeal.

Quo Warranto. This was a quo warranto, on an information by the Attorney-General, prosecuting as well for the Commonwealth as for Solomon Sartwell, George B. Backus, John C. Backus, Samuel C. Hyde, and A. M. Benton, private relators, against Daniel Kingsbury and others, and all persons who might be stockholders in .the McKean County Bank, and the said Mc-Kean County Bank.

This was a petition by Nathan Conley and others, inhabitants of school district No. 10, in West Deer township, in the county of Allegheny, for a mandamus to John Caldwell and others, school directors of West Deer township, commanding them to appropriate a sufficient amount of public money for maintaining a public school in said sub-district No. 10; to do all things needful for keeping open a public school in the schoolhouse of said sub-district; to recognise by a proper…

This was an ejectment by Christian Ihmsen against Oliver H. Ormsby and others, heirs and legal representatives of Oliver Ormsby, deceased, for one undivided third part of a tract of 25 acres of land, in Lower St. Clair township. The plaintiff showed a survey for a tract of 370 acres 154 perches, by the name of “ Bergen op Zoom,” to John Ormsby, Sr., dated the 6th June 1786, a warrant of acceptance of the 4th April 1788, and a patent of the 11th April 1788.

Error, to the Common Pleas of Armstrong county. This' was an action of account render by John Portsmouth against Thomas Donaldson and Alexander Colwell, charging the defendants as his bailiffs and receivers. On the 10th April 1851, John Portsmouth, the plaintiff, leased a piece of ground to one Curtis Thorp, for the term of five years, for the purpose of a nursery.

<p>In an ejectment to enforce the payment of purchase-money, wherein the defendant confesses judgment in favour of the plaintiff, to be released on payment of a certain sum, on or before a stipulated day, time is of the essence of the contract; and if the money be not paid on or before the day, the judgment becomes absolute and indefeasible.</p> <p>It is the purpose of such ejectment to foreclose the defendant’s equity; and if the money be not paid at the time appointed, he has no longer any interest in the land.</p> <p>The Act 21st April 1846 was only declaratory of the existing law upon this subject.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action on the case by Max Sweitzer against James Yerner, Thomas Holmes, N. R. Holmes, and James A. McKnight, trading as McKnight, Holmes & Co., for the loss of a trunk of merchandise intrusted to them as common carriers. In the first count of the declaration they were charged as common carriers; in the second as bailees for hire.</p> <p>On the 18th December 1856, Henry Heidegger was a passenger on the Pennsylvania Railroad from Harrisburg to Pittsburgh. He had with him two trunks, belonging to the plaintiff, one of which was filled with valuable merchandise, besides some trifling articles of personal baggage.</p> <p>Before arriving at Pittsburgh, an agent of the defendants, who were the owners of the Excelsior Omnibus Line in Pittsburgh, entered the cars, as was customary, to collect the baggage checks of the passengers; and received from Heidegger two checks for his trunks, which he directed to be taken to the St. Charles Hotel, and in return received from the agent, an omnibus ticket of the following tenor:—</p> <p> </p> <p>The trunk containing the merchandise was never delivered, and no account of its loss was given on the trial. The plaintiff gave evidence of the custom of the defendants to carry all such trunks, boxes, &c., as were carried in the baggage car of the Pennsylvania Railroad Company, for which checks were given by the company, and to charge extra for more than one trunk.</p> <p>The defendants’ counsel presented the following points, upon which they requested the court to charge the jury:—</p> <p>1. If the jury believe that the agent of the plaintiff had notice that- the defendants were carriers of passengers and ordinary baggage only, he is not entitled to recover for the loss of such articles as are not included in the terms “ ordinary baggage.”</p> <p>.2. That in the absence of a special contract enlarging their responsibilities, the law would only imply an undertaking on part of the defendants to carry in safety ordinary baggage, or such articles of necessary and personal convenience as travellers usually carry with them, and the plaintiff cannot recover for the loss of such articles as do not fall within the description.</p> <p>3. That under all the evidence in the ease, the plaintiff is not entitled to recover anything, unless it be the value of the brushes, and not even for them, unless the jury believe they belonged to the plaintiff himself, not his agent.</p> <p>4. There is no evidence from which the jury can infer the existence of a custom on the part of the defendants to carry merchandise, or any other articles than such as belong to the class known as baggage.</p> <p>The court declined so to charge, and instructed the jury, pro forma, that if they believed from the evidence that the trunk and its contents in question belonged to the plaintiff; and that the custom of the defendants was to carry for hire all trunks, boxes, or packages, brought by the railroad company, in their baggage car attached to the passenger train, and for which checks were given' to the passengers; and if their agent undertook for a certain sum to carry the trunk in question from the depot to the St. Charles Hotel, received the check from the plaintiff’s agent, and failed to deliver the trunk according to his contract, or to return the check -to the holder, in order to enable him to claim the same from the railroad company, or to account for its loss, they were liable in this action. And that the measure of damages would be the actual cash value of the trunk and its contents, at the time of the loss, with interest thereon.</p> <p>And the court reserved the point whether the defendants were responsible for anything beyond the value of the trunk itself, and the articles of personal baggage contained in it.</p> <p>The jury gave a verdict in favour of the plaintiff for $148.33-, subject to the opinion of the court on the point reserved. And the court in bane, subsequently, entered judgment for the plaintiff on the verdict, when the following opinion was delivered by Hampton, P. J.:—</p> <p>“ The defendants were the' proprietors of a line of omnibuses which ran to and from the various railroad depots and hotels of the two cities, carrying passengers, baggage, and the customary articles of freight, for hire.</p> <p>“In December 1856, Henry Heidegger came from New York to Pittsburgh 'by railroad, having in his possession two trunks belonging to the plaintiff, for which he had received checks from the Pennsylvania Railroad Company. As the train approached this city, an agent of the defendants came into the cars soliciting checks for baggage, and received from Mr. Heidegger his checks, promising to deliver the trunks at the St. Charles Hotel. One of them was delivered, but the other was not, nor was the check returned, or any account whatever given of the lost trunk.</p> <p>“ The trunk contained a valuable stock of fancy dry goods, particularly described in a schedule attached to Heidegger’s deposition on file in this case, together with a few brushes, &c., such as are usually carried by a person on a journey.</p> <p>“ The plaintiff brought this action to recover the value of the trunk and its contents. The defendants contended that they were not responsible for the articles of merchandise, because they were not common carriers of freight, but only of passengers, and such baggage as is necessary or convenient for persons on a journey.</p> <p>“ The plaintiff gave evidence tending to show that the defendants were in the habit of carrying for hire all trunks, boxes, and packages brought or carried by the railroad company, in their baggage car attached to the passenger train, for which checks were given to the passengers, to and from the different hotels and depots in the two cities. That their agent was requested to take care of these trunks, as they were valuable, and that he promised to do so.</p> <p>“ The defendants offered no evidence to show what had become of the trunk, or whether they had taken even the slightest care of it — whether it was lost, stolen, or embezzled by their servants or employees. Their defence rested chiefly, if not entirely, on the ground that they were not responsible, because the contents were articles of merchandise.</p> <p>“ The jury were instructed pro forma, that if they believed' from the evidence that the trunk and its contents belonged to the plaintiff, and that the custom of the defendants was to carry for hire all trunks, boxes, or packages brought by the railroad company, in their baggage car attached to the passenger train, and for which checks were given to the passengers; and if their agent undertook for a certain sum to carry the trunk in question from the depot to the St. Charles Hotel — received the check therefor, and failed to deliver the trunk according to his contract, or to return the check to the holder, in order to enable him to claim the same from the railroad company, or to account for its loss, they were liable in this action.</p> <p>“ The court reserved the question of law for the determination of the court in heme, whether or not the defendants were responsible for the articles of merchandise contained in the trunk.</p> <p>“ The jury found a verdict for the plaintiffs for the value of the trunk and its entire contents, subject to the opinion of the court on the question of law reserved.</p> <p>“ Although the defendants are not to be regarded as common carriers of freight, the fact is established by the verdict, that they are accustomed to carry all such articles as are carried in the baggage car of a passenger train, for which checks are given by the company. By this custom they constituted the railroad company their agents pro hae vice, and rendered themselves responsible for all trunks, boxes, or packages received from the company on checks given to the passengers, unless fraud be shown, or a limitation of their liability by special contract.</p> <p>“ But if this were not so, here was a special contract to deliver this particular trunk at the St. Charles Hotel, for a certain sum paid at the time, which would constitute the defendants special bailees for him, and bind them to the- specific performance of their contract, or subject them to the payment of damages for its breach, unless a sufficient excuse be shown for their failure. But no excuse is shown, no reason assigned, no evidence tending to prove that they made the slightest effort to comply with their agreement. They fold up their arms and say in effect, true, we received your trunk and agreed to deliver it to you at the St. Charles Hotel, but refuse to do so because its contents are different from what we supposed. Such a defence, if admissible, would open a door to the grossest frauds.</p> <p>“ A bailment, according to Blackstone, is £ a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee.’ Or, according to Story, ‘ a bailment is a delivery of a thing in trust, for some special object or purpose, and upon a contract expressed or implied, to conform to the object or purpose of the trust.’</p> <p>“ The ease falls clearly within one of the classes of bailments recognised in the books, and the law imposes on the bailees the just responsibility of their undertaking. They were bound to perform the object of the trust, or show a sufficient reason for their non-performance; neither has been attempted; no account whatever has been given of the goods bailed. The agent who could have shown what became of the trunk is not called, nor his absence accounted for, nor any attempt made to explain the cause of the loss. Under such circumstances, it is difficult to perceive by what rule of justice or morality the defendants should be allowed to escape from all responsibility.</p> <p>“ We are both of opinion, therefore, that the plaintiff is entitled to judgment on the question reserved. Let judgment be entered on the verdict.”</p> <p>To this opinion the defendants excepted, and having removed the cause to this court, they here assigned for error: 1. The refusal of the court below to charge as requested in the defendants’ points; 2. The entering of judgment for the plaintiff on the reserved point.</p>

<p>Error to the Common Pleas of Greene county.*</p> <p>This was an ejectment by Thomas Inghram against John B. Gordon and Harvey Reimer, for a tract of 130 acres of land.</p> <p>The plaintiff claimed title under his father, Arthur Inghram, who by his will, dated the 13th October 1834, devised the same to the plaintiff for life.</p> <p>The defendants proved that from the year 1817, or thereabouts, the plaintiff had claimed to be the owner of the premises in question, under a parol gift from his father, in pursuance of which he had entered into possession, and made valuable improvements; and that the land was levied on and sold by the sheriff, under an execution against the plaintiff, at June Term 1842, to William Rhodes; who, on the 27th June 1843, conveyed the same to John B. Gordon, one of the defendants.</p> <p>Tho defendants then gave in evidence the record of a former ejectment by Gordon against the plaintiff; wherein Gordon had recovered possession of the premises, and proved that the same had been ever since maintained.</p> <p>And, in order to show an outstanding title, they gave in evidence the record of a judgment recovered by Jesse Hook against the plaintiff, for $59.17, under which the premises in dispute had been levied on and sold by the sheriff to E.. W. Downey for $300, on the 18th March 1846.</p> <p>On the trial the defendants presented certain points in writing, upon which they requested the court to charge the jury, the 2d and 3d of which were as follows:—</p> <p>2. That if the land was held adversely to the plaintiff, though his interest was but a life estate, yet, if at the time of the seizure and sale on the judgment of Hook, it was yielding no rents, issues, and profits, that Hook could have had applied to the extinguishment of his judgment, such sale would pass the title.</p> <p>3. If a defendant, before the sale of his land by the sheriff, claimed an interest or title in the land which would be subject to levy and sale, and was in possession a long time under such title, and got the advantage of a sale of a fee simple interest, it would be inequitable to allow him to set up against the sheriff’s vendee a title or interest not subject to levy or sale.</p> <p>The court below answered these points in the negative, to which the defendants excepted; and a verdict and judgment having been rendered for the plaintiff, the defendants removed the cause to this court, and here assigned the same for error.</p>

Mandamus. This was an alternative mandamus, in the name of the Commonwealth of Pennsylvania, on the relation of Joseph T. Thomas, against The Commissioners of the County of Allegheny, setting forth that by Act 24th March 1849, certain persons therein named were authorized to organize a company by the name, style, and title of The Pittsburgh and Steubenville Railroad Company, and that by Act 26th February 1853, the county of Allegheny, through its commissioners, was duly…

<p>A grant of the privilege of raising iron ore on the lands of the grantor, at a certain price per ton, is an incorporeal hereditament; not a mere license revocable at the will of the grantor.</p> <p>Such a right is not exclusive in the grantee, but to be enjoyed in common with the grantor, his heirs .and assigns.</p> <p>Caldwell v. Fulton, 7 Casey 475, distinguished.</p>

<p>Error in the Common Pleas of Indiana county.</p> <p>This was an action on the case by Patrick McLean Sutton and Rebecca, his wife, against David G. Gorman, for words imputing to Mrs. Sutton the crime of perjury. The defendant pleaded not guilty, and justification.</p> <p>On the trial, the plaintiffs’ counsel requested the court to charge the jury as follows :—</p> <p>1. To sustain the plea of justification in this case, the defendant is required to produce the same proof as that which would be necessary to convict, were the plaintiff, Rebecca Sutton, indicted for the crime of perjury.</p> <p>2. That to sustain the plea of justification two witnesses must concur in proving every material fact, sworn to by Rebecca Sutton, a witness on the trial before Squire Riddle, was false, or one witness, and strong circumstances conducing to that end.</p> <p>3. That perjury is the taking of an oath or affirmation wilfully, falsely, and corruptly, in a judicial proceeding, to a matter material to the issue.</p> <p>4. That if the plaintiff is entitled to recover, the plea of justification by the defendant is legal evidence of actual malice, and should enhance the damages to the plaintiff.</p> <p>The court below (BuKETNeTON, P. J.) answered these points in the affirmative; to which the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $250, the defendant sued out this writ, and here assigned the same for error.</p>

<p>On the trial of an ejectment founded upon an equitable title, if the court be of opinion that the facts proved do not make out a case in which a chancellor would decree a conveyance, it is their duty to give a binding instruction to that effect to the jury.</p> <p>When an equitable case is to be adjudicated through the medium of legal forms, it is the province of the judge to determine whether the claim or defence be well founded; the only duty of the jury is to aid him in ascertaining disputed facts.</p> <p>When parties set up title against a deed absolute in its terms, the burden of proof is upon them to show that it was intended only as a security for a debt; and if parol evidence be relied on for that purpose, it must be clear and convincing.</p> <p>If land be conveyed in consideration of a pre-existing debt, due from the grantor to the grantee, and it is the understanding of the parties that the debt shall survive, the deed, is but a mortgage; and this understanding may be proved by parol.</p> <p>But the debt must survive; it is not enough that the evidence of it remain in the grantee’s hands, if the liability be gone.</p> <p>The retention of possession by the grantor is a circumstance of great weight in determining whether a conveyance absolute in form was intended to pass the estate, or to be only a security for the debt.</p> <p>A chancellor will not decree a deed absolute on its face, to be a mortgage, on proof of the mere verbal declarations of the parties; but facts and circumstances must be shown inconsistent with the idea of an absolute purchase.</p> <p>The existence of such facts may be shown by the admissions of the grantor, but it is the facts, not the admissions, which raise the equity.</p>

Oh the 24th June 1857, a judgment was obtained in the Supreme Court for the Eastern District, by R. T. Reid, for the use of William Maher and John Maher, against The North-Western Railroad Company, for $3019.75. On the 26th September 1857, an exemplification of this judgment was filed in the Court of Common Pleas of Indiana county; on which a fi. fa. was issued on the 27th, and on the 29th was returned nulla Iona.

<p>Where a judgment is recovered against the administrator of a decedent, without notice to the heirs, and on a scire facias against them, there is a verdict for a smaller sum than the amount of the judgment against the administrator; a payment out of the personal estate, to the extent of the recovery against the heirs, will discharge the real estate in their hands from all claim on the part of the creditor.</p> <p>The judgment against the administrator is conclusive only as to the personalty, and is no evidence of indebtedness as against the real estate; the judgment against the heirs is the sole evidence of the amount to which the creditor is entitled as against the real estate; and when he has received that sum, from whatever source, the real estate is discharged from liability.</p>

<p>Settlements between guardian and ward, soon after the latter becomes of age, and before opportunity exists to become familiar with the condition of the estate, are to be regarded with a jealous eye. Courts will not permit such transactions to stand, unless the circumstances demonstrate, in the highest sense of the terms, full deliberation and uberrima Jides.</p> <p>But a settlement between guardian and ward, made in good faith and on full deliberation, especially if wise and prudent, under the circumstances, cannot be subsequently impeached by the personal representative of the ward, after her decease.</p>

This was an ejectment by Michael Moyers and Elizabeth Moyers against William Tiley, for a tract of 200 acres of land in Washington township. The case was formerly in this court, and is reported in 1 Casey 897.

This was an action on the case by William Wilson and Francis Wilson, trading under the firm of W. & F. Wilson, against William C. Harry, George B. Harry, and David Wilkins, Sr., owners of the steamboat Tuscarora, as common carriers; to recover damages for injuries to the plaintiffs’ goods, shipped from New Orleans to Pittsburgh. See a former report of this case in 1 Qasey 817.

This was an action on the case, for slander, by Lucy M. Morgan, by her next friend Maria M. Morgan, against James Gosling.

This was an appeal by Jacob McAfoose, Jr., and 0. & H. J. Arnold, from the decree of tbe court below, distributing tbe proceeds of the real estate of tbe said Jacob McAfoose, Jr. On tbe 21st August 1856, Sarab Kenly obtained a judgment against Jacob McAfoose, Jr., for $71.50 and costs; on this judgment a fi. fa. was issued and levied on tbe defendants’ real estate; tbe defendant, thereupon, claimed tbe benefit of tbe exemption law of 9th April 1849, and appraisers having…

<p>A sheriff's sale, under a judgment obtained by the endorsee of a note given for part of the purchase-money, does not pass the estate of the vendor discharged, from the lien of the remainder of the unpaid purchase-money.</p> <p>A sale of the interest of a vendee under executory articles only passes the equitable estate, which is measured by the purchase-money paid, and the purchaser can take only such interest.</p> <p>If the vendor, in whom the legal title resides, become the purchaser of the vendee’s equitable interest, it is virtually a rescission of the contract, and he has no further remedy for the unpaid purchase-money.</p> <p>But when some other creditor than the vendor levies on and sells the vendee’s interest, the vendor’s remedies, if he be not the purchaser, remain unimpaired.</p> <p>Harbach v. Riley, 7 Barr 81, distinguished.</p>

On the 3d April 1855, the following petition, under the Act 24th February 1845 (Brightly’s Purd. 728, pi. 118), was presented to the court below: “ To the Hon. the Judges of the Court of Common Pleas of Allegheny county. Greeting: “ The undersigned, citizens of Moon and Robinson townships, wish to represent to your honourable body — That, whereas the public road leading from the farm of Wm.

On the 24th March 1857, the petition of divers inhabitants of West Deer township was presented, praying the court below to appoint viewers to lay out a road, from a point on a public road, at or near John McConnell’s Mill, in West Deer township, by way of No. 6 School-house, to the Allegheny and Butler Plank Road, at or near Charles Anderson’s, in Indiana township. .

<p>Error to the Common Pleas of Mercer county.</p> <p>This was an ejectment by John Simpson against William L. Breckenridge, for a tract of 100 acres of land, in Coolspring township.</p> <p>In 1820, John Simpson, the plaintiff, purchased a house and lot, in Mercer, from John Findley, and gave him some property of his wife, as part payment of the purchase-money. And in 1829, having made no further payment, by a deed, in which his wife did not join, he released his interest therein to Findley.</p> <p>In 1832, William S. Rankin, being anxious to secure a house for Simpson’s family, offered to give him a tract of land for the house and lot; and sent to him the following proposition in Wl’iting, which was the basis of the plaintiff’s claim:—</p> <p>“ I will give John Simpson one hundred acres of the land next to either Stokely or Newell, for $450; or I will give him the two hundred acres with a clear title for his house and lot.</p> <p>Wm. S. Rankin.”</p> <p>He accordingly made arrangements with John Findley, by which the latter was to convey to him the house and lot, on Rankin paying its value, less what had been paid by Mrs. Simpson’s property; whereupon, Rankin was to convey the 100 acres of land, now in controversy, for the use of Simpson’s wife and children.</p> <p>On the 1st May 1832, John Findley and wife, and John Simpson and wife, joined in a deed conveying the house and lot to Rankin, in consideration of $900. And on the 5th November 1835, William S. Rankin and wife conveyed the 100 acres in dispute to James McKean, in trust for Martha Simpson for life, and after her decease, for the children of the said John and Martha Simpson.</p> <p>In 1832, Simpson moved on to the land in question with his family, and after making some trifling improvements, relapsed into former habits of intemperance, and abandoned the premises. He never paid the taxes, but as early as 1836, they were paid by the tenants of McKean, the trustee.</p> <p>Breckenridge, the defendant, married Simpson’s eldest daughter, and about 1854, purchased the interests of all the other children in the land, for $900, their full value. The trustee and Simpson were willing that he should go on and improve the land. Simpson knew of the purchase, and of Breckenridge’s intention to improve the place, and so far from claiming the land as his own, he went with his son-in-law to employ counsel, to bring suit against Baird, the tenant then in possession. He was then told that the legal title was in McKean, in trust for his wife and children, and made no pretence of any interest in himself.</p> <p>On the trial, the plaintiff’s counsel submitted certain points in writing, upon which they requested the court below to charge the jury; the 1st and 4th of which were as follows:—</p> <p>1. That if they believe the testimony of Benjamin Alexander, the written proposition of William S. Rankin, delivered to John Simpson at the request of Rankin, and accepted by Simpson and complied with, by the parties on both sides, vested a perfect title to the land in question in Simpson, legal as well as equitable, there being no covenant or stipulation in the writing for further assurance.</p> <p>4. That the declarations of John Simpson, as proved by Samuel and Abraham Pew, that he intended to make the deed of the land to his wife and children, would not be any authority to Rankin to convey to a trustee for them; and the jury cannot infer from such declarations to the witness, that he made similar statements to Rankin, especially if the jury believe the testimony of Benjamin Alexander and James McKean, that the proposition to convey in trust for Mrs. Simpson and children came from her and Rankin; and when Alexander and McKean both declined the trust because Simpson’s consent was wanting, Rankin did not allege that it had ever been given.</p> <p>The court below (McCalmont, P. J.) answered these points in the negative, and in their general charge instructed the jury as follows:—</p> <p>“ The plaintiff claims that the memorandum in writing is sufficient to take the case out of the statute of frauds; and of itself a good title on which the plaintiff can recover.</p> <p>“ The statute of frauds requires a memorandum of the contract to be put in writing and signed by the party. Here there was a complete memorandum of a contract when accepted, and agreed to by Simpson. But did he agree to it ? If he agreed to it and conveyed the house and lot, he would have been entitled to the two hundred acres. If he agreed to pay the $450, he would have been entitled to either 100 acres. But the evidence shows that he conveyed his interest in the house and lot, and only claimed one hundred acres. This shows that there was some modification of the written agreement; either that it was written while Simpson had the title prior to 1829, or that Rankin supposed at the time that Simpson had the title, or could get it, and afterwards discovered he could not, but had some legal or equitable claim upon Judge Findley for part of the purchase-money, which Findley recognised and was willing to give him the benefit of; or, according to witness McKean, that Simpson had paid some to Findley, and Rankin wanted to save what Simpson had paid, for the family, and to pay off the balance; and that upon this discovery an agreement was made for the hundred acres in controversy. The transaction was so long ago, and the'witnesses who perhaps knew most about it, Judge Findley and Wm. S. Rankin, kind-hearted old settlers, having within a few years gone the way of all the earth,— that we cannot now tell exactly how the facts were. We may assume it as the plaintiff contends.</p> <p>“ The defendant’s counsel look upon it as a rift or gratuity by Rankin, in consideration of getting Mrs. Simpson’s name to the conveyance; that Findley had the title, and that the memorandum in writing was not in force, but rendered inoperative by reason of the inability of Simpson to perform it. Assuming, however, that Simpson had an equitable claim to the house, and that it was the consideration for the gift of the land in controversy, we are, nevertheless, of opinion that it was such a modification of the writing as rendered it inoperative as a conveyance or agreement in writing, and made the agreement rest wholly in -parol.</p> <p>“ If, then, the agreement being in parol, the purchase-money or consideration was paid by Simpson, the question is whether in consideration that it was through his wife’s property he had got the land from Rankin, or from any other consideration, he agreed that the title should be made to his wife and children. If he assented to this, and gave the title that direction, it was competent for him. to do so, and he cannot recover. Or if all the money coming to him from Findley, which he had paid to Findley, or part of it, was his wife’s, acknowledged by him to be invested for her, and to have been conveyed to Rankin for her benefit, then it was competent for Judge Findley and Rankin, with the assent of Simpson, to carry out the arrangement, and for Rankin to make the deed in trust for her and her children, according to the agreement; and if so, the plaintiff could not recover. But if Simpson never assented to this, if he had a contract with Rankin for the land, and performed the consideration and went into the possession, then the deed from Rankin to McKean would be without authority, and would inure to the benefit of Simpson. In that case Simpson would be entitled to recover.”</p> <p>To this the plaintiff excepted; and a verdict and judgment having been rendered for the defendant, the plaintiff sued out this writ and here assigned the same for error.</p>

<p>Error to the Common Pleas of Westmoreland county.</p> <p>This was an action on the case by Sarah Kilgore against The Pennsylvania Railroad Company, to recover damages for injuries sustained by her whilst a passenger in the defendant’s cars from ■Pittsburgh to Greensburg, in consequence of the defendant’s negligence in prematurely starting the train without giving her time to alight at her point of destination.</p> <p>On the 6th of November 1854, the plaintiff, with her three children, took passage in the defendant’s cars from Pittsburgh to Greensburg. The plaintiff had been sick and was still feeble, and the children were of tender years. The cars arrived at Greens-burg about dusk, and notice was previously given by the conductor of their arrival at that point.</p> <p>Two of the children had alighted; and the plaintiff, with the other child, whilst the cars were in the act of starting, sprang upon the platform, upon which one of the children had fallen prostrate; and in so doing, fell between the cars and the station platform and was seriously injured; and for this the present action was brought.</p> <p>On the trial, the defendant’s counsel presented certain points in writing upon which the court was requested to charge the jury; the 3d and 4th of which were as follows:—</p> <p>3. That although sufficient time may not have been allowed to the plaintiff to get safely off the train, yet if the jury believe that she attempted to get off, and did get off the train while it was in motion, it was such a want of ordinary care of her own person and safety, as will prevent Jxer recovery.</p> <p>4. That if the jury believe that the plaintiff was cautioned by an agent of the defendant of the danger of getting off the cars while they were in motion, and that she refused to heed such warning, and persisted in her attempt to leave the train while it was going, the negligence that caused the injury was her own, and she cannot recover. . .</p> <p>The court below (Burlington, P. J.) instructed the jury as follows :—</p> <p>“ The principle is well settled, that if an accident occurs, or an injury is sustained by the carelessness of the party injured, he has no right to complain of the want of care in others; and this principle applies equally, even when the defendant has been in equal fault, because when both parties are to blame, neither ha¡s a right to complain of the other. If therefore the injury was the result of carelessness in the plaintiff, she is not entitled to recover.</p> <p>“ Assuming the position that the plaintiff was not in fault, was the defendant, or the agents of the company, guilty of carelessness ? It was their duty to have the road and all the machinery in good order, with careful and discreet agents, and that all persons connected with the running of the cars should conduct themselves with all proper prudence and care. In this case the plaintiff only complains of one act of carelessness: that is, in not stopping the train sufficiently long to enable her to get out safely.</p> <p>“ How long a train ought to stop at the various stations may depend upon circumstances. We have no law fixing the time, and of course the court cannot pronounce it as matter of law. Nor is there any rule, by-law, or regulation of the company fixing a time, and of which travellers had notice, and from which a contract might be inferred to comply with such. rules. It depends upon the peculiar circumstances of each particular case; upon the number of passengers to be let out, their age, sex, and condition. Prudence and duty would require of a conductor to detain a train longer to pass out fifty aged females, than five active men. This duty, varying according to various circumstances, is a question peculiarly proper for the decision of the jury to determine.</p> <p>“How long then did the train stop on this..occasion? The. evidence on that subject is very various, and somewhat contradictory. One of the witnesses thinks the train scarcely ceased to move; several others think it stopped as much as two minutes, and some a longer period. The jury will determine this question according to their best judgment, upon the whole evidence, which they believe to be true. Was it sufficiently long under all the circumstances to permit the plaintiff and her children, together with all the other passengers, to leave the cars with reasonable convenience and safety ? We do not think it was the duty of the conductor to go through the train and see that every person was safely passed out of the cars. But it was his duty to know about how many passengers were leaving the train at the station. And it was further his duty to stop the train sufficiently long to enable them to get out without danger to their persons and lives; and if he did not, he was derelict in his duty; neglectful of the safety and rights of the passengers intrusted to his care, and the company would be liable for the consequences, provided the plaintiff was not in fault.</p> <p>“But it is alleged by the defendant’s counsel that the misfortune is attributable entirely to the rashness of the plaintiff; or at least her rashness, although the conductor may have been in fault, was the immediate cause and contributed to the injury. If the plaintiff had been in the car, or on the platform, when the train had started and was in motion, and was in a situation to choose between getting off and remaining on, and with a full consciousness of her danger, with foolish rashness persisted in leaving the car in defiance of warning to the contrary, we would be compelled to tell you, as matter of law, that she could not recover. But we deem this a question for the jury. The evidence, we repeat, shows that she was a feeble and sickly woman, with three helpless children under her charge. She was in a strange place, and it was either dusk or approaching it. Her eldest daughter, with the little boy, had left the car, and she was getting out with the other little girl. The little girl says she was on the lower step when the car gave a jerk, and threw her off the car on to the platform of the station. How are the facts in regard to that ? Where was the mother at that time ? Was she in a position where she could safely choose between leaving the car and remaining on, with a consciousness of the danger she would be in by leaving the car and getting to her children ? Proper allowance must be made for her embarrassing condition under the circumstances, in determining the fact whether she was rash and negligent of her safety or not. If she was, and that was the cause, or in part the cause of the injury, she cannot recover. In that event it would be her own fault, and she must suffer the loss. But if, under the circumstances in which the jury find her to have been placed at the time, she.wag guilty of no rashness, but was reasonably careful of her safety, and the accident occurred from the want of sufficient time for her to get out, in the situation she was placed, and the injury occurred from that cause, then she is entitled to recover.</p> <p>“ If she was in a situation to exercise a cool and deliberate judgment of the dangers that beset her in leaving the train at that time, and was cautioned not to do so; and in the face of, and in defiance of such caution and danger, which she ought to have apprehended, she persisted in getting off, it would be such rashness on her part as would defeat her right to recover for the injuries she sustained, and the consequences thereof. But, if she was not in a situation to exercise such cool and deliberate judgment, and the train had started while she was in the act of getting off, and her condition was one of embarrassment, from her state of health, and the apparent danger of one child, and her separation from the others; and she was in a situation not to appreciate her danger, but embarrassed by surrounding perplexities and difficulties, and in this condition attempted to leave the car, it is a question for the jury to decide, whether her getting off, under such circumstances, would be rashness or negligence on her part. If so, she would not be entitled to recover; but if the jury believe otherwise, then her right of action against the company, if they were in fault, would not be barred.</p> <p>“ This is not the case cited by the defendant’s counsel, where the party, whilst the train was running ten miles an hour, leaped from the car, in defiance of the remonstrances of the conductor and others. In the present case, we have no precise and uncontradicted evidence of the situation of the plaintiff when the train started. The matter must be determined by the jury, under all the circumstances, what position she was in at the time; and whether or not it was rashness and imprudence on her part, to attempt to leave the car; or whether from fright, and her anxiety for her children, the confusion not uncommon to railroad depots, and the natural embarrassment induced by the position, the jury may find she was in, her conduct was rash or otherwise.”</p> <p>To this charge the defendants excepted; and a verdict and judgment having been rendered for the plaintiff for $1383, the defendants removed the cause to this court, and here assigned the same for error. ¡</p>

This was an appeal by James S. Moorhead, administrator of William Moorhead, deceased, from the decree of the court below, disallowing a credit of $249 claimed in his administration account. Williarn Moorhead died intestate in 1853, leaving issue, ten children, and seised of real, but of no personal estate.

<p>Error to the Common Pleas of Somerset county.</p> <p>This was an action of account render by Henry Little against Alexander Y. Stanton, his late copartner.</p> <p>In 1850, the parties entered into partnership for the sale of “ Patent Saw Mill Dogs.” And on the 18th June 1851, the following settlement was made between them:—</p> <p>“ June 18th 1851. — Henry Little and A. Y. Stanton settled up the business of the partnership of the Patent Saw Mill Dogs, and A. Y. Stanton is due H. Little two hundred and ninety-five dollars and eighty-six cents to make him equal with the said Little in the outlays; and is entitled to the half of all the machines unsold. And the said Stanton agrees that Little shall receive the pay hereafter of all the machines sold, until he receives the above amount; and the said Stanton also agrees to pay F. Rininger fifty dollars due by them jointly, and Little to pay for the last three machines got from Pittsburgh, amounting to eighty dollars. The said Little to have the pay for the following machines: John Spangler’s, Jesse Griffith’s, and the one at Thomas’s mill. The said Stanton agrees to use all his exertion to make sale of the dogs. Witness our hands, the date and year above written.</p> <p>“ H. Little,</p> <p>“Attest — S. G. Miller.” “Alex. Y. Stanton.”</p> <p>Judgment quod computet having been entered, auditors were appointed, who treated the above instrument as an acknowledgment of indebtedness from the defendant to the plaintiff, and reported an account against the defendant, showing, a balance of §>808.10, in favour of the plaintiff.</p> <p>To this report, the defendant filed exceptions, and the court below, being of opinion that the settlement of the 18th June 1851 was a statement of the account of the plaintiff with the firm, reformed the account reported by the auditors, and gave judgment for the plaintiff for $157.31. Whereupon the plaintiff removed the cause to this court, and here assigned the same for error.</p>

This was an ejectment by John Dawson and Mary Ann, his wife, against Joseph Mills, for 30 acres of land in East Deer township. In 1794, St. Clair Gibson, under whom the plaintiffs claimed, was seised of a tract of 200 acres in East Deer township. And in 1803, he contracted to sell the northern or improved portion of it to John Thompson, under whom the defendant claimed. On the 26th February 1810, Gibson executed to Thompson a deed for 124 acres 124 perches and allowance.

This was an ejectment by Meeker Waters against Samuel Waters, to enforce the payment of the purchase-money due on two-elevenths of a tract of land in Jefferson township.

This was an action of assumpsit, by Morgan Bell against the executors of John Bell, deceased, for reimbursement of a sum of money paid by him, in exoneration of lands devised to him by the testator, which he alleged was properly chargeable on the residuary estate in the hands of the executors.

This was an action of assumpsit by Arthur Allen against Abraham Lenhart, Joseph R. Allsworth, Benjamin Allsworth, and David Allsworth, copartners under the firm of Lenhart & Allsworths, for wages. The only question in the cause was, whether Joseph R. Allsworth was a member of the firm of Lenhart & Allsworths; and in order to establish this point, the plaintiff offered to prove the declarations of Abraham Lenhart, one of the defendants, as to the persons composing the firm.

This was a scire facias to revive a judgment in favour of Joseph Hill, for the use of Ira B. McVay, against William A. Irwin, Samuel Baird, and Alexander McClurg. The cause was arbitrated by agreement of counsel, and on the 23d November 1857, an award was made in favour of the plaintiff for $637.90, on which judgment was entered.

<p>The rule, that a party will not be allowed to purchase and hold property for his own use and benefit, to which he stands in a fiduciary relation, if contested by the cestui que trust, is inflexible, without regard to the consideration paid, or the honesty of the intent.</p> <p>But the rule does not apply, when the sale is made by a public officer, under proceedings adverse to the interest of the cestui que trust, and the trustee has not the means in his power to prevent the sale.</p> <p>Therefore, a guardian, without funds in his hands, may lawfully become the purchaser for his own use, of his ward’s real estate, sold by the sheriff under a judgment against the personal representative of the ward’s ancestor.</p> <p>A settlement between guardian and ward cannot, in the absence of fraud, be impeached after the lapse of six years.</p>

This was a bill of review by Eli Elannigan, and Ellen his wife, formerly Ellen Newell, Susan Newell, and Sa-rah Jane Newell, children and heirs at law of Robert Newell, deceased, praying for a review of the final account of John Stevenson, deceased, who in his lifetime was guardian of the said Ellen, Susan, and Sarah Jane Newell, as filed by his executors, Samuel Stevenson and Philip H. Stevenson; and an appeal by the said executors from the decree of the Orphans’ Court…

<p>Error, to the District Court of Allegheny county.</p> <p>This was an ejectment by Alexander Negley, against James E. Breading, for a town lot in the first ward of the city of Allegheny, situate on Craig and Canal streets.</p> <p>The plaintiff claimed title under a treasurer’s sale of the lot, as unseated, for the taxes of 1852 and 1853. It was sold on the 13th June 1854, to Henry Sproul for $25, who conveyed his interest therein to the plaintiff.</p> <p>The defendant showed title in B. Patterson, and proved that it had been assessed to him in 1852 and 1853, and that Mr. Patterson was abundantly able to pay the taxes.</p> <p>The court below charged the jury as follows :—</p> <p>“ The authority of the treasurer to sell unseated lands for taxes, depends upon the following facts :—</p> <p>“ 1st. That the land was unseated at the time of the assessment.</p> <p>“ 2d. That a tax appears to have been, and was in fact, assessed upon it by the proper officers.</p> <p>“ 3d. That the tax has been due for one whole year, and remains unpaid.</p> <p>“4th. This authority has been restricted by construction, in some instances, for the protection of innocent persons, who, relying on the customary forms of taxation, may have been led into the mistaken supposition that there was no tax charged upon the land, but only against thé owner personally.</p> <p>“ 5th. If a tract of land, which in point of fact is unseated, be assessed as seated, with the knowledge and consent of the owner, and the commissioners of the county, it must be taken as seated, so far as regards the assessment and collection of the taxes ; and a sale of it for taxes, as unseated, would be void; and this, whether the taxes have or have not been paid.”</p> <p>To this charge the plaintiff excepted ; and a verdict and judgment having been rendered for the defendant, the plaintiff sued out this writ, and here assigned the same for error.</p>

<p>Appeal from the Common Pleas of Orawford county.</p> <p>This was an appeal by James S. Polhemus, from the decree of the court below distributing the proceeds of a sheriff’s sale of the real estate of R. R. McMillen.</p> <p>C. Courtright was the holder of two judgment-notes, one of the firm of McMillen & McTier for $52.98, the other of R. R. McMillen for $362.25. On the 1st December 1856, after the hour of 11 p. M., he sent these notes to the prothonotary, at his residence, and requested that they should be filed. The prothonotary received them, marked them filed as of that date, and the next morning so entered them on the judgment docket.</p> <p>On the 2d December 1856, James S. Polhemus, the appellant, obtained judgment against McMillen, for $967.97; and claimed to come in pro rata with Courtright, in the distribution of the proceeds of sale.</p> <p>The court below refused, on the application of the appellant, to correct the date of the entry of Courtright’s judgments, on the judgment docket; and decreed distribution according to the priority of the liens upon the record. From this decree the present appeal was taken.</p>

This was an action of covenant by John Algeo & Co. against the Merchants’ Insurance Company of Philadelphia, on a policy of insurance on four ice-boats, from Freeport, Pennsylvania, to Nashville, Tennessee. Two other cases on the same policy are reported in 7 Casey 446.

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by The Pittsburgh and Connellsville Railroad Company, against William Robinson, Jr., to recover $5000, for 100 shares of the stock of the said company, subscribed for by the defendant on the 17th February 1853.</p> <p>The facts of the case are sufficiently stated in the charge of the court below, which was delivered by Williams, J.:—</p> <p>“This is an action to recover the unpaid instalments alleged to be due on one hundred shares of the capital stock of the Pittsburgh and Connellsville Railroad Company, subscribed for by the defendant on the 17th of February 1853. The plaintiffs having given in evidence their charter, the defendant’s subscription, the calls for the instalments, and the notice of the treasurer, are entitled to recover unless the defendant has shown that he has a good and valid defence to the action.</p> <p>“ The defendant contends that he is not liable for the unpaid instalments in question, because the subscription was made by him at the request of William Larimer, Jr., the president of the company, with the express understanding that he was not either to pay for or hold the stock for which he subscribed, and that the same was to be. cancelled. In support of this position, he has given in evidence the certificate of William Larimer, Jr., verified by affidavit, showing the fact to be as alleged. This evidence is objected to as incompetent, on the ground that it tends to contradict the contract or agreement of subscription given in evidence by the plaintiff. It seems to me that the objection to the evidence is well founded. No principle of law is better settled than that parol evidence is inadmissible to contradict, vary, or change the terms of a written contract, where there is neither fraud nor mistake in the transaction. This evidence does tend directly and positively to contradict the terms of the contract of subscription, and must therefore be disregarded by the jury. It is not pretended, that any fraud was practised on the defendant to induce him to make the subscription. He must have known, when he made the subscription, that he was thereby rendering himself liable to the company for the amount of the stock for which he subscribed ; and if it was the understanding that he should neither pay for the stock nor hold it, but that the same should be cancelled, it is his misfortune that he did not have the stock transferred to the company or his subscription cancelled during the presidency of Larimer; or that he did not require of Larimer satisfactory indemnity against any demands of the company on account of the subscription, before making the same. If he made the subscription, on the faith of the pledge or assurance of Larimer that he should not be called on to pay for the stock, he must look to Larimer to make good his pledge. It is no- defence to this action for the instalments which, by the very terms of the subscription, he agreed, and became liable, to pay.</p> <p>“But the defendant’s counsel further contend, that the stock subscribed by the defendant was afterwards taken by the company from General Larimer, as his own, by virtue of a previous purchase from the defendant, and that the contract of subscription, if not the stock itself, was.thereby extinguished, and no recovery can be had thereon by the company against the defendant. If the defendant, after he made the subscription, sold the stock to Larimer, and if the company took the same from Larimer, that might amount to an extinguishment of the contract of subscription, and constitute a good defence to this action. But is there any evidence of such a sale and transfer as is here alleged ? Aside from the written memorandum at the foot of the printed contract of subscription, to which we shall hereafter advert, there is not a particle of evidence that the defendant sold, or in any way transferred this stock to Lorimer, or that the latter transferred or undertook to transfer the same to the company. The certificate of Larimer given in evidence by the defendant, tends to rebut the supposition of any such sale or transfer. If such were the fact, why is it not so stated by Larimer ? The fact of such a sale and transfer could have been readily shown. But there is no evidence, either that the defendant sold the stock to Larimer, or that Larimer transferred the same to the company, unless it is furnished by the memorandum in writing at the foot of the printed subscription, which is in these words: ‘This stock is taken from William Larimer, Jr., individually, at the same rates sold to him.’ What is the meaning of this language ? What was intended by this memorandum ? Looking at the memorandum itself in connection with the terms of the printed subscription, it might be difficult, if not impossible, to determine precisely what construction should be given to it. It is ambiguous, if not unintelligible. But with the light thrown upon it by the other evidence, we may possibly be able to discover its meaning. But does it mean what the defendant’s counsel contend that it does ?• Is it an admission by the company that the stock there subscribed had been sold to Larimer, and that the company had taken it from Larimer, at the same rates at which it was sold to him ? It is clear that if the memorandum was made before the defendant, and those whose names follow his, made their subscriptions, it was not intended for any such purpose, and cannot possibly be construed into an admission that the stock so subscribed had been sold to Larimer and transferred to the company. There is no evidence tending to show that the memorandum was made after the subscriptions. What, then, is the presumption ? Is it that it was made after the subscriptions ? I cannot say that any such presumption arises, either from the law or the facts of this case; and if such were the legal presumption, it would, as it seems to me, be rebutted by the testimony of Veeder, who states that he saw the memorandum as early as August 1853, when he came into the service of the company, and that most of the other subscribers whose names are below the defendant’s have paid the instalments called for on their subscriptions. If Veeder is believed, and he is not contradicted or impeached, the memorandum could not have reference to the stock which Larimer transferred to the company on the 5th of January 1855, in pursuance of the resolution of the directors of the 3d of December 1853, because the memorandum was made before either the passage of the resolution or the transfer of the stock.</p> <p>“ Besides, the resolution of the 2d of December 1853 recites the purchase of a specific number of shares of stock by Larimer for the company from the original stockholders; and the plaintiffs have shown by the transfer-book of the company, that between the 14th of February 1848, and the 1st of October 1852, a large amount of stock was transferred to Larimer by the original subscribers ; which is undoubtedly the stock referred to by the resolution of the 3d of December 1853, as shown by the stock-book of the company, in which Larimer is credited with the amounts purchased by and transferred to him, and charged with the amount transferred to the company. This stock, as the resolution of the 3d of December 1853 shows, was purchased by Larimer of the original stockholders for the company. The testimony of Veeder shows that the sum of $2.50 on each share so purchased by Larimer, had been paid by the original subscribers, and that Larimer paid them therefor, either out of his own funds or the funds of the company, the sum of $1.43 for each share so purchased. He had purchased, as the evidence shows, this stock for the company, before the defendant made his subscription, and at the date of defendant’s subscription it was still standing in his name, but having been purchased for, it was the company’s stock. It was doubtless a part of this stock so held by the company for which the defendant subscribed, and it was doubtless the purpose of the memorandum to indicate this fact, and that the defendant was to have it subject to the payment of all future instalments at the rate at which it had been purchased by Larimer. That is to say, the company having already received the first instalment of $2.50 per share, less $1.43 paid therefor, the defendant was to be credited with the difference, $1.07 on each share, and this they are now willing and offer to allow. The evidence shows that the defendant was one of the original subscribers, and that he had transferred to Larimer the stock so subscribed, sometime before he made the subscription in question. But whether this be the meaning of the written memorandum or not, it is clear that it was not intended to show that the stock subscribed for by the defendant had been purchased by Larimer and transferred to the company. For there is not a particle of evidence to show that the defendant ever sold the stock to Larimer, or that Larimer ever transferred it to the company. No such sale or transfer is shown by the books of the company or by any other evidence, and I cannot, therefore, submit it as a question of fact for the jury to determine whether the stock sued for here was or was not a part of the stock purchased by General Larimer, and by him transferred to the company. The plaintiffs’ evidence shows that the stock transferred to the company by General Larimer was purchased by him, before the defendant’s subscription was made, and could not include the defendant’s subscription now in controversy.</p> <p>“ But suppose the presumption and the fact to be that the written memorandum was made after the date of defendant’s subscription, is it such a material alteration of the contract or agreement of subscription as will avoid it and prevent the plaintiffs from recovery thereon ? Without the written memorandum in question, the plaintiffs’ right to recover would be clear and unquestionable. The subscription is absolute and unqualified in its terms, and being made to the company after the granting of the letters patent and the organization of the company, it was not necessary to aver or prove that the first instalment mentioned in the act was paid at the time the subscription was made: 4 Gasey 318. It seems to me, that the memorandum does not materially vary the terms of the agreement. It imposes no increased obligation on the defendant, nor does it require the payment of a larger amount than would be otherwise required of him. It seems to me, that in no view that can be taken of the matter, can the defendant avail himself of the written memorandum to defeat the plaintiffs’ action; and I therefore instruct the jury that the defendant has failed to make out a defence to their action. The plaintiffs offer to allow the defendant a credit of $1.07 on each share, and your verdict should be for the residue, with interest.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $5960.48, the defendant removed the cause to this court, and here assigned the same for error.</p>

This was an action of assumpsit hy The Pittsburgh and Steuben-ville Railroad Company against Edward D. Gazzam, to recover the amount of a subscription of 120 shares to the capital stock of the said company, and the penalty provided for the non-payment of the instalments as called for. On the trial, the court below, after hearing the plaintiffs’ evidence, directed a nonsuit.

This was an action of covenant by Zerobabel H. H. Cropper and Thomas J. Cropper, trading as Cropper & Brother, against The Western Insurance Company, upon a policy of insurance for $3500, upon the hull, tackle, machinery, and apparel of the propeller E. J. Dupont, at and from Baltimore to New York. The declaration averred a total loss by perils of the sea.

This was an appeal from the decision of the commissioners of Schuylkill county, whereby the assessment -of the lands of the appellant, known as “The Valley Furnace Lands,” was, in 1850, raised from $37,000 to $76,000. The appeal was taken under the Act 26th April 1850, and, on hearing, was dismissed. The proceedings were then removed to this court, where the appeal was reinstated: 8 Harris 369. And on the record being remitted, the court below confirmed the assessment.

<p>A .stipulation in a bond and warrant of attorney, that tbe judgment to be entered thereon shall be a lien only on certain designated lands, though it restricts the lien of the judgment, does not exempt the other real and personal property of the defendant from liability for the debt.</p> <p>The lien is but an incident to the judgment, and a restriction of it to certain designated lands does not affect the judgment as a personal security.</p>

<p>The Courts of Quarter Sessions have jurisdiction to lay out and open new streets within a borough, unless clearly excluded by the provisions of the local law.</p>

This was an action on the case by Townsend Brown and Taylor Brown, a minor, by his next friend, against Marshall Entriken, Pennock Martin, Eranklin Gheen, John Gheen, Llewellyn Meredith, and Nathan Taylor, for frightening the plaintiffs’ horse whilst passing along the public highway, whereby he became unmanageable, ran away, and broke his leg. The defendant Nathan Taylor was named in the praecipe, but was not served with process, and the jury was not sworn as to him.

<p>A lease for a term of years, wherein it was provided that the lessee, his heirs, and assigns, might hold the premises so long as he and they should think proper, after the expiration of the term, at the same rent, is a perpetual lease at the will of the lessee.</p> <p>Such a lease may be created under the common law of Pennsylvania, inasmuch as livery of seisin is not necessary to passi an estate which may be equivalent to a fee simple.</p>

<p>Error to the Common Pleas of Bucks county.</p> <p>This was an ejectment by John A. Dougherty against Joseph Barnet, for a dwelling-house, and about half an acre of land, in Bensalem township, Bucks county.</p> <p>In 1857, the premises in question {inter alia) were sold by the sheriff of Bucks county, under an execution against Joseph Barnet, the defendant, and conveyed to Charles 0. Richards, the purchaser, by deed dated the 5th May 1857. On the 20th June 1857, Charles C. Richards and wife conveyed the same premises to John A. Dougherty, the plaintiff, who brought this action to obtain possession.</p> <p>On the trial, the defendant offered to prove that Richards bought the property, at the sheriff’s sale, as the agent of Barnet, and that Dougherty purchased from Richards with knowledge of this fact, at the time of his purchase; to be followed by proof that Barnet had offered to reimburse to Dougherty the full amount which he had advanced.</p> <p>The court below (Smyser, P. J.) rejected this offer, and instructed the jury to find for the defendant. The plaintiff’s counsel excepted to this ruling; and a verdict and judgment having been rendered for the defendant, the plaintiff removed the cause to this court, and here assigned for error the rejection of the testimony so offered on the trial.</p>

<p>Error to the Common Pleas of Chester county.</p> <p>This was an action of assumpsit by Elisha Garrett against William Crosson and Kennedy Crosson, upon a promissory note of which the following is a copy:—</p> <p>$200. London Britain.</p> <p>Ten days after date, we, or either of us, promise' to pay to Elisha Garrett, or order, two hundred dollars, without defalcation, for value received.</p> <p>William Crosson,</p> <p>February 9, 1856. Kennedy Crosson.</p> <p>The defendants pleaded, inter alia, the following special plea:—</p> <p>“And for further plea in this behalf, the said William and Kennedy Crosson say aotio non ; because they say, the said Elisha Garrett did sell to the said William Crosson, a certain tract of land situate in the township of London Britain, for the sum of $2000.40, on and subject to the following conditions, to wit:—</p> <p>“ ‘ Conditions of sale, made this ninth day of February 1856, of a tract of land as prescribed in advertisement, are as follows:—</p> <p>“ ‘ 1. The highest bidder to be the buyer.</p> <p>“ ‘ 5. The purchaser to pay two hundred dollars when the property is struct off to him, or give his note, with approved security, payable in ten days after date.</p> <p>“ ‘ 3. And the further sum of eight hundred dollars on the 25th day of March next.</p> <p>“ ‘ 4. The balance to remain in the property, secured by bond and mortgage, when a good title will be given, with peaceable possession. Elisha Garrett.’</p> <p>“ That, in compliance with the second condition as aforesaid, he, the said William Crosson, gave his note for $200, dated the 9th day of February 1856, payable in ten days, with the said Kennedy Crosson as his security, who was approved of by the said Elisha Garrett, and is the same note here sought to be recovered. That by said conditions, the further sum of eight hundred dollars was to be paid on the 25th day of March following; the balance of the purchase-money to remain in the property, secured by bond and mortgage, and a good title given with peaceable possession. That on the said 25th of March, the said Elisha Garrett was not capable to make, nor could he, the said Elisha, make a good title to the said William, of the said tract, so agreed to be purchased by'the said William, as aforesaid, according to the tenor and effect of the said conditions of sale, by reason of a certain indenture of mortgage upon the said tract of land, given unto Mary M. Russell, to secure the payment of $1087, dated the 27th of April, A. D. 1848, duly recorded. And also, by reason of a certain judgment for $269.64, entered on the 19th day of January, A. D. 1850, by John C. Powley, against the said Elisha Garrett, dated the 10th day of February, A. D. 1851, and to be found in judgment-docket B., page 91.</p> <p>“ Wherefore, by reason of the premises, it appearing that the said note of $200, here sought to be recovered, was given by the said William and Kennedy Crosson, as part of the. consideration-money for the purchase of the tract of land as aforesaid, according to the tenor and effect of the said conditions of sale; and the said Elisha Garrett being unable, at the time specified, to perform his part of the said agreement, contained in said conditions, to wit: to make a good title for the premises so sold and purchased, the said William and Kennedy refused to pay said note, as they lawfully might clo, for the cause aforesaid, and this they are ready to verify. Wherefore they pray judgment, if the said Elisha ought to have or maintain his aforesaid action thereof, against them, &c.”</p> <p>The plaintiff demurred to this plea, and the court below gave judgment for the defendants on the demurrer; whereupon the plaintiff sued out this writ, and here assigned the same for error.</p>

This was an ejectment by Samuel Heffner against John G. Betz, Gottlieb Rieger, and Eredericka Ehlers, for two houses and a lot of ground in the borough of Pottsville. On the 20th August 1833, Samuel Heffner, the plaintiff, was the owner of the property in dispute; and on that day Peter Lazarus recovered a judgment against him, which became a lien thereon.

<p>It is no defence to an action on a joint note, wherein one of the defendants has appealed from an award of arbitrators, that the plaintiff has obtained a judgment against the other defendant upon another instrument, which was a separate security for the same debt.</p> <p>Such judgment does not destroy the joint liability on the note, and is no defence to it. It is but a cumulative security; not a former recovery.</p>

This was an amicable action oí assumpsit by The City of Philadelphia against Clement A. Finley, in which the following case was stated for the opinion of the court:— “ It is agreed that an amicable action shall be entered, entitled as above, and that a case be stated for the opinion of the court, to ascertain the liability of the defendant for a tax assessed by the plaintiff upon certain household furniture (as per bill hereto annexed as a part hereof) belonging to the…

On the 17th August 1857, Rebecca Durnall and Lewis Durnall presented a petition for the laying out of a private road from their plantation, in West Bradford township, to a public road located near by. The court, thereupon, appointed viewers under the Act of 28th April 1857 {Brightly's Purd. 1246), who returned that they had laid out a private road for the use of the petitioners, through the improved land of Hannah Darlington; and assessed her damages at $15.

This was a foreign attachment by Thomas Sinnickson, Henry C. Storms, and Prosper D. Martin, trading as Sinnickson, Storms & Martin, against James G. Painter; which was served on Samuel M. Painter, as garnishee. Joseph Painter, the father of James G. Painter, died on the 14th August 1855, leaving a will, which was proved on the 28th of the same month, and letters testamentary were issued to Samuel M. Painter, one of the executors.

This was a scire facias by The City of Philadelphia, on a municipal claim filed by the District of West Philadelphia, before consolidation, against Julia Ann Britton, for laying water-pipes in front of the defendant’s property.

This was an amicable action of debt brought by The Commonwealth of Pennsylvania against Samuel J. Gr. Nancrede, executor and sole devisee of Joseph Gr. Nancrede, deceased, to recover the sum of $1710.62, the amount of the collateral inheritance tax on the property devised and bequeathed to the defendant by his testator. Joseph Gr.

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by Henry Kessler, executor of Anna Roemer, deceased, from the decree of the court below, disallowing a claim by the appellant against the estate of Henry Roemer, deceased.</p> <p>Henry Roemer died intestate on the 22d July 1832, and administration of his estate was granted to John Marr. On the 5th July 1853, Anna Roemer obtained judgment in the District Court of Philadelphia, against the administrator, for $864. This judgment was revived against the administrator, in 1839, in 1844, and again in 1857; but no proceedings were had to make the heirs of Henry Roemer parties to these revivals.</p> <p>John Marr died in 1854, and administration de bonis non was granted to James Todd; and in 1857, certain real estate of Henry Roemer, deceased, was sold by order of the Orphans’ Court, for the payment of debts, and the proceeds thereof were paid to the administrator. His account having been duly filed, was referred to an auditor, with power to report distribution of the balance in his hands.</p> <p>It appeared, that the real estate from which the fund was produced, had remained in the possession of Anna- Roemer, the mother of the intestate, until her death in 1833. The intestate, Henry Roemer, derived title to the property through his father, John Roemer, deceased; who devised the same to his widow Anna Roemer, for life, with remainder to the intestate in fee. The heirs of Henry Roemer were never in actual possession of the premises.</p> <p>The fund was claimed by the heirs, to the exclusion of the judgment, on the ground that its lien had expired against the real estate of the decedent. The auditor reported in favour of their claim, and his report was confirmed by the Orphans’ Court; whereupon this appeal was taken by the judgment-creditor.</p>

<p>A mortgage was given to secure tlie payment of certain promissory notes made by the mortgagee for the accommodation of the mortgagor, and the renewals of those notes, from time to time, until the whole should be finally paid: Reid, that it was not necessary, in order to constitute notes subsequently issued, renewals of such original notes, that they should have been issued for the same amounts, at the same periods, and that each successive note should have been applied to take up its immediate predecessor.</p> <p>A continuing loan of the same credit, by the issue of new notes, from time to time, would, in such a case, be within the terms of the mortgage; and such notes would be secured by it.</p>

This was an action on the case by Evan Jones against Thomas Crow, for wrongfully casting sawdust into the tail-race of the defendant’s saw-mill, upon Buck Run, in Sadbury township, which flowed down said race into the mill-dam and head-race of the plaintiff, on the said stream, thus obstructing and filling up the said head-race and mill-dam.

. This was an action of ejectment by Robert F. Potts against Jacob C. Hess for a lot of ground in Fifth street, 131 feet south of Diamond street, in the City of Philadelphia. The plaintiff purchased the premises in question, from Parry & Randolph, on the 28th December 1850.

This was an attachment-execution at the suit of E. J. Etting & Brother against Hannum & Price, which was served on Samuel Riddle, as garnishee. About the 10th June 1857, Hannum & Price, the defendants, undertook to build a steam-boiler for Samuel Riddle, the garnishee.

<p>If a railroad company, employed in the transportation of live stock, permit straw or other combustible materials to be used on the cars, and a fire originate therefrom, by which the animals are injured, it is such negligence as will render them liable for the loss sustained.</p> <p>A contract, exonerating the company from all claims which may arise for injury to the stock whilst in the cars of the company, does not exonerate them from the consequences of negligence in the performance of their duty as common carriers.</p> <p>Goldey v. The Pennsylvania Railroad Company, 6 Casey 242, aflirmed.</p>

<p>By a marriage settlement, real estate was conveyed to a trustee, in trust to pay the income to the wife, during coverture, for her sole and separate use, or to such persons as she should appoint, without being liable to the debts of her intended husband; and, after her decease, to convey the same to certain persons therein designated. By the same instrument, the intended husband covenanted with the trustee, that he would not oppose, at any time thereafter, directly or indirectly, or obstruct, litigate, or defeat the uses and estates therein declared, nor any future revocation or change of the same, or any declaration or appointment of uses, which his said intended wife might thereafter, either by deed or will, declare: Held, that this covenant did not confer on the wife a power to revoke the uses declared in the marriage settlement, either by deed or will.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an-action of assumpsit by William Wenrich and Henry Pfeiffer, trading as Wenrich & Co., against Samuel Heffner, on a book account for goods sold and delivered, and also on two promissory notes.</p> <p>On the trial of the cause, the plaintiffs, who were dealers in cattle, gave in evidence their books of original entry, showing the sale and delivery by them to the defendant, between the 24th June and 7th October 1851, of cattle to the amount of $1066.60 ; on which they allowed a credit for $670. And also the defendant’s two promissory notes in their favour, one of them for $225, dated 25th or 30th March 1852, at 40 days; and the other for $100, dated 21st July 1852, at 60 days.</p> <p>The date of the note for $225 appeared, upon inspection, to have been altered from the 25th to the 30th March; and on this ground, the defendant objected to its admission in evidence. The court below, however, admitted the note in evidence, and sealed a bill of exceptions.</p> <p>The defendant gave in evidence his two paid notes in favour of the plaintiffs, and by them endorsed, one of them for $185, dated 29th July 1851, at 60 days ; and the other for $225, dated 5th November 1851, at 60 days. Also William Wenrich’s receipt for $25, dated 21st December 1852, in full.</p> <p>The court below (Hegins, P. J..) charged the jury, in answer to a point presented by the defendant, that there was no evidence that the notes given in evidence by the plaintiffs were given on account of the book account; and, therefore, the plaintiffs were entitled to recover upon those notes, in addition to the book account.</p> <p>To this charge the defendant excepted; and a verdict and judgment having been given for the plaintiffs for $389.77, the defendant sued out this writ, and here assigned for error: 1. The admission in evidence of the note for $225; 2. The charge of the court.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by Lewis Bitting against Joseph Tucker, on an alleged promise by the defendant to pay the plaintiff for a lot of merchandise sold to one William W. Wright.</p> <p>On the trial, the only evidence given by the plaintiff was the testimony of William Samilton, who being swprn, testified as follows :—</p> <p>“ In August 1852,1 was introduced to Mr. Wright by Mr. Morrison. Mr. Wright called on me, at the Tontine House; he -wanted me to take charge of his house; I did so. Wright and myself went to look at the house; whilst there, Mr. Tucker called, he. asked Mr. Wright, where he was going to purchase his liquors. Mr. Tucker took Mr. Wright to Bitting. I was along. Mr. Tucker introduced Mr. Wright to Mr. Bitting; they had some conversation. I did not. I heard Tucker say to Bitting, if he aint good, I am. The amount bought on that day was $550; delivered next day. I went to the Tontine House and got the goods. Mr. Wright set up the business, but he did not succeed. He cleared out. Don’t know on what credit the goods, these goods, were sold.”</p> <p>Cross-examined: — “Eight or ten months after Mr. Wright had closed, I took my bill and saw Mr. Tucker. He said Wright had cleared out. Mr. Wright called the name Tontine House.”</p> <p>The defendant demurred to the evidence, and the plaintiff joined in demurrer. The court below gave judgment for the plaintiff on the demurrer, which was here assigned for error.</p>

<p>The Act 11th April 1848, provides that nothing therein contained “ shall he construed to protect the property of any married woman from liability for debts contracted by herself, or in her name, by any person authorized so to doHeld, that a married woman was not liable for a debt contracted for the avowed purpose of improving her separate estate, unless it were shown that the money was applied to that object.</p> <p>The words “ debts contracted by herself,” mean: 1. Debts contracted before marriage, whilst she was competent to contract, or afterwards as a feme sole trader. 2. Debts for necessaries, after her husband has deserted her, or neglected and refused to support her. 3. And, possibly, debts contracted for the improvement of her separate estate when the money is so applied. But this last point is not decided.</p>

<p>After a possession of thirty years under a devise in fee, there is a presumption of title out of the Commonwealth.</p> <p>A testatrix, in 1793, devised a house and lot, subject to the express condition, that the owners thereof should not build, nor suffer any building to be erected, in the garden spot of said house, nor open, nor permit, or suffer to be opened, if they could in anywise prevent it, an alley through the court in which said dwelling-house was situated; and, in case of failing to perform this condition, she devised the premises over to the trustees of a charity: Held, that this devise over was void for remoteness, as a conditional limitation or executory devise; and that the devisees took an estate in fee, discharged from the condition.</p> <p>In order to pass a title under the Act of 18th April 1853, all persons having a present interest must be made parties.; and, it seems, that contingent or executory interests will not be barred unless the title be set forth in the petition, and the purpose be expressed to bar such contingent interests.</p>

<p>An appeal from an award of arbitrators is not vitiated by an omission of the prothonotary to attest the jurat; if the record show that the affidavit was in fact made.</p> <p>A municipal corporation has a right to appeal from an award of arbitrators without payment of costs.</p> <p>Robinson ». Jefferson Oonnty, 6 W. <& S. 16, affirmed.</p>

This was an appeal by the York County Bank, from the decree of the court below, distributing the proceeds of a sheriff’s sale of personal property, levied on successively as the property of John L. Keys, and of John B. Moore & Co. On the 20th November 1855, John B. Moore and John L. Keys entered into partnership, and the following articles were executed between them:— “ Philadelphia, November 20th 1855. “This agreement, made this twentieth day of November, one thousand eight…

This was an attachment execution issued on a judgment in favour of Louis F. Fackler against Lewis Muelter, and served on Henry P. Wolbert, as garnishee, on the 25th July 1857. .

<p>A testator, by his will, devised and bequeathed his real and personal estate to his wife for life, and after her decease, to be divided among his children, in the proportions therein mentioned; he then provided as follows: — “After the death of my wife, in order more effectually to make a division of my estate, as above directed, I do order and direct, authorize and empower them, my said executors, and the survivor of them, to grant, bargain, sell, and dispose of, either by public or private sale or sales, all my said real estate, &c. Held, that as regarded the shares of the children in the real estate, this was a conversion out and out; and that it was, for the purposes of the will, to be treated as if it had been personal estate at the death of the testator.</p>

This was an attachment execution issued on a judgment for $787.98, obtained by Robert Lucas against The Philadelphia and Sunbury Railroad Company, and served on The Sunbury and Erie Railroad Company, as garnishees.

• V* • - ■ r This was an action of assumpsit by Cornelius Fellowes against Tinsley Jeter, to recover a balance claimed to be due on a promissory nóte, of which the following is a copy:— $4333.33J. New Orleans, March 1st 1853. On the 1st of November 1855, after date, I promise to pay to the order of myself, forty-three hundred and thirty-three one-third dollars, value received, with interest at the rate of eight per cent, per annum, from date until paid.

<p>Under the Act 12th March 1842, the assignees of the Bank of Pennsylvania are bound to receive its notes in payment of debts due to the bank, whether held by the defendant at the time of the commencement of the suit, or acquired afterwards.</p>

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was a quo warranto at the suit of The Commonwealth of Pennsylvania, ex relatione Jonathan K. Krewson, against William A. Field, to inquire by what authority the defendant claimed to exercise the office of county superintendent of common schools for the county of Schuylkill.</p> <p>The information set forth that the relator, Jonathan K. Krewson, was duly elected and commissioned as county superintendent of common schools for the said county of Schuylkill for the term of three years, from the first Monday of June 1857; and that he entered upon and continued to perform the duties of said office until the 2d November 1858, when he received the following notice from'the superintendent of common schools:—</p> <p>Pennsylvania, Department of Common Schools,</p> <p>Harrisburg, November 2d 1858.</p> <p>Sir: You are hereby removed from the office of county superintendent for “neglect of duty and. incompetency.” You will immediately deliver to your successor, W. A. Field, Esq., the books of “ County Certificates” and “Provisional Certificates” in your hands, and the marginal references or “ duplicates” of all certificates, of either kind, issued by you since the first Monday in June 1857; together with all other official records or documents in your possession, or under your control, taking his receipt for the same in detail; upon the presentation of which at this department, your arrearages of salary and express charges will be adjusted.</p> <p>Your obedient servant,</p> <p>H. C. Hickoic,</p> <p> Supt. Com. Schools. </p> <p>To J. K. Krewson, Esq., Minersville, Schuylkill Co., Pa.</p> <p>That the relator had not received any previous notice of any charge against him, either of incompetency or neglect of duty, nor, as he averred and believed, had any such been made; nor had he ever received from the superintendent any specification of any fact, mistake, or act of commission or omission, whereon any such charge could have been based; but that the attempt so to remove him from his office was wholly without charge, specification, trial, or hearing of any kind whatever. That the superintendent, although subsequently requested, had refused to make known to the relator any specification to sustain the allegations of incompetency and neglect of duty; or to give him a hearing upon both or either of said charges.</p> <p>That the defendant, William A. Field, had, from the said 2d November 1858, usurped and intruded himself into the said office of county superintendent, without any right or lawful authority therefor, and claimed to exercise the rights and duties, and receive the fees and emoluments to said office appertaining, to the .great loss, hindrance, and injury of the relator.</p> <p>The defendant by his answer neither denied nor admitted that part of the information which set forth the removal of the relator without charge, specification, trial, or hearing; but alleged :—</p> <p>“ 1st. That the state superintendent of common schools had full power to remove the relator from the office of county superintendent, whenever he became satisfied that the said relator was incompetent, or that he neglected the duties of his said office.</p> <p>“ 2d. That the said state superintendent did become satisfied that the said relator neglected his duty as county superintendent, and was incompetent for the proper performance thereof, and did therefore remove the said relator from the said office.</p> <p>“ 3d. That there being a vacancy in the office of county superintendent of common schools for the county of Schuylkill, the state superintendent had the power to fill said vacancy, and did fill the same by the appointment of this defendant; who, having been duly commissioned, and having accepted the office and entered upon its duties, is entitled to hold the same until his successor is duly chosen and qualified.”</p> <p>The relator demurred to this answer; and the court below, after argument, gave judgment for the Commonwealth upon the demurrer ; whereupon the defendant removed the cause to this court, and here assigned the same for error.</p>

<p>The common law courts have concurrent jurisdiction with the Orphans' Court, of an action against executors to recover a claim against the estate of the decedent.</p> <p>Where a plaintiff, in an action on a promissory note, is notified that proof of consideration will be required on the trial, and there is conflicting evidence on the question of consideration, the jury are to determine from all the evidence in the cause, whether a consideration has been satisfactorily proved.</p> <p>Where there is proof of payments and expenditures by the defendant, for the use of the plaintiff, there arises a presumption that these were made in discharge of the defendant’s indebtedness, when the relation between the parties is of a business character, or when there is nothing to explain the relation between them; when, however, the relation is not that of business, as when money is paid by a father for his son, or by a man for a mistress, other presumptions arise; and it is for the jury to determine, under all the probabilities of the ease, whether they were intended as payments or gratuities.</p>

This was a scire facias on a mechanic’s claim for $600, by John T. Coleman against Christian A. Seltzer, to which the defendant put in the following affidavit of defence :— “ Christian A. Seltzer, the defendant, being duly sworn according to law, doth depose and say, that he has a just and lawful defence to the above action, of this nature, to wit:— “ That the claim, upon which the above action is brought, has been fully paid and satisfied, as will appear by the following…

<p>An executor who, without authority, assumes the charge of the testator’s real estate, is liable to account to the devisees as a trustee or agent; and, as such, it is his duty to keep a regular account with his principals or cestuis que trust.</p> <p>If he neglect to keep such account, he assumes the burden of proving that he did not in fact, and could not,' collect all the rents and profits of the premises.</p> <p>He is prima facie accountable for all the rents, and can only be discharged by proof that he did not collect them, and could not have done so by the faithful exercise of due diligence, within the limits of the powers which he possessed.</p> <p>On an appeal, the facts will be taken to be as found by an auditor or master, unless in cases of manifest error, or plain mistake.</p> <p>An agent or trustee who takes possession of, and himself occupies, a part of the real estate of his principals or cestuis que trust, is chargeable with the highest rent that could have been obtained for it.</p> <p>If an agent or trustee, in consequence of the pendency of legal proceedings between his principals or cestuis que trust, is prevented from paying over the moneys in his hands, it is his duty to invest the fund, and, in default, he is chargeable with interest.</p> <p>He is not to be allowed commissions on surcharges in his accounts. Commissions are given in compensation for trouble and risk; they are not earned as to the rents of property of which he was himself the tenant; and are not to be allowed upon rents for which he has denied his accountability.</p>

This was an action of debt by D. K. Morse against Ransom Millard, on a booh account for goods sold and delivered, amounting to $308.57.

<p>A promise, after attaining majority, to pay a debt contracted during infancy, “ as fast as he got able,”' will not support an action, without proof of ability to pay.</p> <p>A promise, in affirmance of an infant’s contract, must be made to the party in interest, or his agent. Declarations to strangers are unavailing.</p>

This was an action on the case by Huldah Hill, the widow of Burdick Hill, deceased, against Daniel Hill, the acting administrator of the said Burdick Hill, for wrongfully refusing to set apart for the use of herself and family, $300 worth of the real estate of the said decedent. The principal question raised on the trial was, as to the proof-of the plaintiff’s marriage to the defendant’s intestate ; in respect to which, numerous exceptions were taken by the defendant. 1.

<p>Error to the Common Pleas of Warren county.</p> <p>This was an action of covenant by Sterling Waters against James H. Wright. And the only question in the cause was, as to the admissibility of the deposition of John A. Haney, a witness on behalf of the plaintiff.</p> <p>The rule of court, under which the deposition was taken, provided as follows: — “ Rules to take the depositions of witnesses, out of the county, may be entered by either party, reasonable notice, not less than ten days of the time of taking the depositions, having been given to the opposite party, if he lives in the county, and if without, to the attorney on record, or the party. And depositions so taken may be read without subpoenaing the witness. Rules to take the testimony of ancient,Infirm, and going witnesses, without the county, may be entered by either party, reasonable notice being given to the opposite party, or in his absence to his attorney, but such depositions shall be taken de lene esse. The notice for taking such depositions shall be sufficient, if it state particularly the time and place of taking the same, and giving the name of the examining magistrate, or stating generally that the same will be taken by some competent authority in and for said county in which such depositions aré to be taken.”</p> <p>On the 15th July 1858, the plaintiff entered a rule to take the depositions of witnesses, under this rule, and gave the following notice to the defendant:—</p> <p>Common Pleas of Warren Co. Number ,15. September Term 1857.</p> <p>And now to wit, July 15, 1858, rule on the part of the plaintiff, to take the deposition of absent, ancient, infirm, and going witnesses, on reasonable notice, to be read in evidence on the trial of this cause.</p> <p>Penna., Warren Co., ss:</p> <p>Extract from the record.</p> <p>Thos. Clemons, Prothonotary.</p> <p>To the above-named defendant or his attorneys: ,</p> <p>Please to take notice that, in pursuance of the above rule of court, the depositions of witnesses, on the part of the plaintiff, to be read in' evidence on the trial of the above entitled cause, will be taken at the office of Paul A. Way, Esq., in the township of Sewickley, and county of Allegheny, before Paul A. Way, Esq., or some other competent authority, on the 5th day of August, A. d. 1858, between the hours of 10 o’clock A. M. and 8 o’clock p. m. of said day; when and where you may attend, to cross-examine the witnesses, if you think proper.</p> <p>Schofield & Brown, Plaintiff’s Attorneys.</p> <p>The caption of the deposition was as follows:—</p> <p>“ Deposition of John A. Haney, produced, sworn, and examined at the office of Paul A. Way, justice of the peace, in Sewickley township, Allegheny county, Pa., on the 5th day of August, A. D. 1858, between the hours of 10 o’clock A. M. and 8 o’clock p. M., in obedience to the rule of court, and notice hereto attached, to be read in a cause depending in said court, in which Sterling Waters is plaintiff, and J. H. Wright, defendant.”</p> <p>And at the end of it was the following certificate:—</p> <p>“ I certify that the above witness was duly qualified and examined, at the time and place stated in caption, and subscribed his deposition in my presence.</p> <p>“ G. H. Starr, J. P.</p> <p>“ Sewickley Township, 5th Aug. 1858.”</p> <p>The defendant’s counsel objected to the admission of this deposition in evidence, on the ground that there was no evidence that the person before whom it was taken was a justice of the peace; that the initials J. P., at the end of his name, were not sufficient evidence that he was one.</p> <p>The court below (Derrickson, J.) overruled the objection and admitted the deposition in evidence, to which the defendant excepted; and a verdict and judgment having been rendered for the plaintiff for $162.59, the defendant removed the cause to this court, and here assigned the same for error.</p>

This was an action of assumpsit by Kimball, Wells & Co. against Kingsbury & Brown, on a promissory note for $400. The plaintiffs issued a commission to take the depositions of witnesses at Westfield, Chautauque county, New York, directed to Watson S. Hinkley or John G. Hinkley, or either of them, named by the plaintiffs, and Austin Smith, joint commissioner, named on the part of the defendants.

<p>A habeas coipus at common law can only be heard by the court in banc, though a single judge may allow the writ, on sufficient cause shown.</p> <p>The writs of certiorari and habeas corpus may be severally used as ancillary to each other, when necessary to give effect to the supervisory authority of the court.</p> <p>If a habeas corpus at common law issue, and the return show that the prisoner is held by virtue of proceedings in a court, or before a magistrate, over which the court issuing the writ has a supervisory authority, it may issue a certiorari to bring up the record; and thereupon hear and decide the case, or review and correct the proceedings, in order to give effect to the writ of habeas corpus.</p> <p>If a certiorari issue, to bring up a case to a higher court for hearing or review, the court may also issue a habeas corpus to bring up the defendant; and may, in a proper case, admit him to bail, to appear at the hearing, and abide the event; and the form of the recognisance must be adapted to the exigencies of the case.</p> <p>The warrant of arrest, under the Act of 12th July 1842, is an interlocutory proceeding, to hold the defendant to bail, in an action ex contractu, in a case falling within, the terms of the act.</p> <p>If the allegations of fraud, in the plaintiff’s preliminary affidavit, he substantiated to the satisfaction of the judge, and not denied on oath, or otherwise controverted by the defendant, he may be committed to abide the event of the suit.</p> <p>It is sufficient, that the affidavit set forth a ease of fraud in general terms; it is enough in the first instance, that it show probable cause to the satisfaction of the judge; for, on the hearing, the defendant may, on oath, deny all the allegations, and demand full proof of the facts.</p> <p>A commitment is sufficient, that recites the allegations of the affidavit, the arrest and hearing of the parties; and sets forth that, after hearing, the judge was satisfied that the demand of the plaintiff was on contract, and that the allegations were substantiated, “ in that the said defendant had assigned and disposed of his property with the intent to defraud his creditors, and that he fraudulently contracted the debt respecting which the suit was brought.”</p> <p>It is not necessary to specify in the commitment, the particular forms in which the defendant had disposed of his property, or perpetrated the frauds charged against him.</p> <p>The fraud of the debtor gives the statutory remedy to the creditor, and it is • immaterial whether it were committed in or out of the state.</p>

This was an indictment for forgery, at common law, wherein-Edwin R. Biles, the defendant, was charged with having made a false and forged entry in the journal of Hoskins, Hieskell & Co., with intent to defraud the said .firm. The defendant was for several years the confidential clerk and book-keeper-of Hoskins, Hieskell & Co., and had the entire charge of their books, and of the cash received in their business, until it was deposited in bank.

This was an action of trespass by Reuben C. Scott against Henry Magee, John A. Warner, and Jared Sandford, to recover the value of a horse attached by Sandford, as constable, by virtue of an attachment, in favour of Warner, against R. S. Montgomery. On the trial, the plaintiff proved the sale of the horse by J. W. Scott, to himself, and the taking pf it by Sandford. The defendants then gave evidence tending to prove that Montgomery had previously sold the horse to Warner.

<p>The county is not liable, under the Act of 20th April 1840, for the expenses incurred in an unsuccessful attempt to arrest a fugitive from justice, who has taken refuge iu another state.</p>