Volume 34 — Pennsylvania State Reports

This was an action of assumpsit by Philip Gronoble against John Hoy, to recover damages for the breach of a parol contract, whereby the defendant engaged to employ the plaintiff to cultivate a farm upon shares.

This was an action of assumpsit by George Mullin, late sheriff of Bedford county, against Joseph S. Morrison, on a refunding receipt for $1400, dated the 12th April 1823.

This was an appeal by Jaeob Bowman, executor of Samuel Bowman, deceased, from the decree of the court below, for the payment of a legacy of $400, bequeathed by the testator to William Wesley Bear, unto Jacob Bear, the administrator of the legatee.

Eraob, to the Common Pleas of Lancaster county. This was an action of assumptsit by John Zook and Maria his wife, in right of his said wife, against John Gr. Miles md Michael Berry, executors of Peter Shoenberger, deceased, on i parol promise of their testator. .

This was an appeal by Naomi Fisher and others, the widow and heirs of Abraham Kerns, deceased, from the decree of the court below upon the account of Job Mann, one of the executors of the said Abraham Kerns.

<p>This court will not reverse because of an omission, at the trial, to instruct the jury on a material point in the cause, if the attention of the court below were not called to it by the parties.</p> <p>The acts of a party done in ignorance of his rights, will not operate as an estoppel, unless others have acquired rights on the faith of them.</p>

This was an appeal by Margaret Marks from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of Abraham Andrews. On the 5th April 1858, Margaret Marks obtained a judgment against Abraham Andrews for $159. On the 9th April 1858, Albert Hine obtained a judgment against him for $266.58, with a waiver of the benefit of the exemption law.

This was an ejectment by Adam Zubler against Jesse S. Schrack, for a tract of 80 acres of timber land in Green township, Clinton county. The plaintiff claimed title under an improvement commenced in 1832 or 1833, by John Herring. On the 15th July 1839, John Bolinger, a surveyor, at the instance of Herring, made a survey, embracing 165 acres 80 perches; which included Herring’s improvement, and the greater part of the land in controversy.

Errob to the Common Pleas of York county. This was an ejectment by George H. Merklein against William Trapnell for a tract of 100 acres of land in Cbanceford and Peach-bottom townships. After the return of the writ, Eliza Jones, Samuel Morrison, Allison Reed, and Nelson Carver, the defendant’s lessors, appeared and were admitted to defend.

<p>Error to the-Common Pleas of Lancaster county.</p> <p>This was an action on the case by James Mullison, the keeper of a livery stable, against Christopher E. Nagle, a constable, for levying on and selling a horse belonging to the plaintiff, under an execution against Dr. Smith Armor.</p> <p>The facts of the ease are fully stated in the following charge to the jury in the court below, delivered by Long, P. J.:—</p> <p>“ According to the evidence which has been given in this case, it appears, that about the 5th of July 1856, Doctor Smith Armor hired a horse from the plaintiff, Mullison, who resided in Columbia, to go to Marietta, to attend to his professional calling; when he reached there, he hitched the horse at the Cross Key Tavern, and proceeded to visit his patients; during his absence, the horse was taken possession of by defendant (his ground for doing so, was an execution, which had been issued on a judgment obtained by Samuel Hippie against Smith Armor, before John Auxer, Esq.), and in pursuance of the execution, the horse was not only levied upon, but sold to Mr. Lewis Martin, for the sum of $55. After Martin had made the purchase, a replevin was taken out by Mullison, and the horse delivered by the sheriff to Mullison; and the only question now for your consideration is, what ought to be the damages which you ought to award to the plaintiff? He has obtained his horse, and of course you cannot properly allow him damages on that account. Now what ought to he the measure of damages by which you should ascertain the damages which the plaintiff has sustained in this ease ? In somewhat analogous cases, it has been held, that when a sheriff or constable acts in good faith and honestly in levying and selling, by mistake, the property of a stranger, nothing more ought to be allowed than compensatory damages ; which means interest upon the property taken while in possession of the wrongdoer. But if the acts of the defendant were wanton or oppressive, or a malicious invasion of the rights of the plaintiff then you would be justified in allowing exemplary damages. If Hippie, or Nagle, had reasonable grounds to believe that Mullison was the owner of the property which was levied upon, and if, after being satisfied of this fact, the defendant still persisted in holding the property, and selling the same, then this would be a fact, from which an oppressive intention on his part might be inferred. If the constable had no satisfactory evidence of who was the owner of the property, and he found it in the possession of the defendant in the execution, he would not be liable to exemplary damages, if he proceeded to levy upon and sell the property; unless in the mean time he had such evidence or facts brought to his notice, which ought to satisfy a reasonable man that Mullison was the owner of the horse. If he was satisfied before he sold the horse, that the horse belonged to Mullison, this would be an oppressive act, which would justify you in allowing exemplary damages. It will be your province to determine from the testimony, whether the horse was wantonly or maliciously levied upon and sold, or whether he acted in good faith, in the honest and fair discharge of his duty. If so, he ought only to be allowed compensatory damages.”</p> <p>To this charge the defendant excepted. The jury found the following special verdict:—</p> <p>In the above ease, the following facts are found to be disclosed by the evidence: That on the 5th of July 1856, the plaintiff was the owner of a dun horse, which, on that day, was hired to Dr. Smith Armor, and was in his possession; and being so in possession of Armor, was levied upon on an execution issued by Samuel Hippie, on judgment obtained before Squire Auxer, in Marietta, and sold on the 17th of the same month to Lewis Martin. Against Lewis Martin a suit in replevin (August Term 1856, No. 190), was brought, on the day he obtained possession (the 17th of July), and the horse was delivered to Mullison and remained in his possession. In the replevin suit, judgment by default was obtained against Martin, and that judgment remains at present in full force and virtue. That they are ignorant, in point of law, on which side they ought, upon these facts, to find the issue. That, if upon the whole matter, the court shall be of opinion, that the issue is proved for the plaintiff, they find for the plaintiff accordingly and assess the damages at fifty dollars (|50), exemplary damages— but if the court are of an opposite opinion, then they find for defendant.</p> <p>The court below entered judgment for the plaintiff on the special verdict, the following opinion being delivered by Long, P. J.:— “ According to the facts set forth in the special verdict rendered in this case, it appears, that the plaintiff, being the owner of a horse, hired the same to Doctor Smith Armor; that while in his possession, it was levied upon, and taken possession of by defendant, as constable, by virtue of an execution issued upon a judgment obtained by Samuel Hippie, before Squire Auxer. The horse was afterwards sold by the constable, and Levi Martin became the purchaser. The plaintiff then issued a writ of replevin out of this court to August Term 1856, No. 190, against the purchaser. Upon this writ, the property was delivered over to the plaintiff, and on the 8d of September 1856, judgment entered against the defendant by default. The question now arises, is the action of replevin and judgment thereon a bar to the plaintiff’s recovery in this suit ? If that action afforded a remedy to the plaintiff (whether he availed himself of it or not) by which he might have obtained satisfaction for the injury complained of in this suit, then I am of the opinion this action cannot be maintained. But it appears to me, that the subject-matters in dispute in the two actions were not only different, but under no circumstances could the plaintiff have recovered in the replevin case, satisfaction for the cause of action complained of here. The replevin was rather a proceeding in rem. It is true, damages may be recovered, but they could only be for a detention of the horse by him, which was for a very short time, and not for the taking, which is the gist of the action. If the horse had been voluntarily surrendered by defendant to the plaintiff, that would not have defeated this action; it would only have gone in mitigation of damages. That the same object accomplished by operation of law, should produce a different result, appears to me inexplicable. Suppose the defendant had taken two or three horses instead of one, and made sale of all to different persons, the plaintiff would have had a right to issue a replevin against each purchaser, and a judgment in one action would scarcely be pretended to be a bar to a recovery in the other suits. It is true, if the plaintiff had brought a suit for trespass or trover against the defendant it would have stood as a bar against any action against his vendee, because the action was capable of embracing the matter which constituted the cause of action against the defendant’s vendees. But under no circumstances was this the case with the action of replevin, upon which the defendant relies as a bar; all that could be recovered, was the property, or the value thereof, and damages for the detention, which would not reach the cause of action complained of here. The numerous authorities referred to by the counsel for the defendant, on the argument, in our opinion, do not, in principle, reach the case, nor in our opinion have the exceptions to the damages been sustained. Judgment is therefore directed to be entered for the plaintiff on the special verdict for $50.”</p> <p>The defendant thereupon removed the cause to this court, and here assigned for error: 1. That the court erred in submitting to the jury, as a question of fact, whether the plaintiff was entitled to recover vindictive or compensatory damages. 2. In deciding that the plaintiff was not concluded by the previous recovery in replevin.</p>

This was an action of assumpsit hy Samuel Guldin and John F. Guldin, trading as Samuel Guldin & Son, against Herman Y. Linderman and John F. Linderman, executors of Frederick Linderman, deceased, on a promissory note for $600, dated the 3d November 1856, drawn by Daniel B. Linderman to the order of the said Frederick Linderman, the defendants’ testator, and by him endorsed, payable 140 days after date.

Error, to the Common Pleas of Berks county. This was an action of assumpsit by Samuel Guldin, Jr., against Herman Y. Linderman and John F. Linderman, executors of Frederick Linderman, deceased, on a joint and several promissory note, of which the following is a copy:— Union, March 28, 1858. $1600.00.

This was an action of assumpsit by Daniel Young and Nicholas Jones, lately trading as Young & Jones, against Joshua Weida, executor of Abigail Kuns, deceased, on a promise by the defendant’s testatrix to pay a bond of Isaac E. Kemp for $400, dated the 6th April 1860, in consideration of forbearance.

This was an action of debt by The Commonwealth of Pennsylvania, for the use of William and Samuel Cross, against William W. Wilson, late sheriff of Juniata county, upon his official bond.

This was an action of assumpsit by Robert Moore against Henry L. Patterson, to recover the value of 430 blooms, received by the defendant, as a common carrier, and not delivered to the plaintiff’s consignee. The plaintiff died pending the suit, and Joseph Moore and George H. Steiner, his executors, were substituted. The defendants pleaded non assumpsit, and payment with leave, &c. The case was previously before this court, and is reported in 4 Casey 505.

This was an ejectment by James Entriken against Daniel Washabaugh and George W. Anderson, for a tract of 52 acres 13 perches of land, in Broad Top township, Bedford county. The plaintiff’s title commenced with a descriptive warrant to Mary Foster for 50 acres, dated the 2d October 1792; on which a survey was made of 95 acres 60 perches, and returned on the 2d April 1821.

This was an action of assumpsit by Edwin H. Sykes against The Perry County Mutual Fire Insurance Company, upon a policy of insurance against fire, issued by the defendants on the 95th June 1857, whereby they insured the plaintiff, for the term of five years, against loss or damage by fire, to the extent of $666.66-|, on a water-power saw-mill, in Perry county.

<p>Error to the Common Pleas of Bedford county.</p> <p>This was an action of dower by Elizabeth Kelly, the widow of John Kelly, against William Walsh, her late husband’s alienee, wherein she claimed her dower in a tract of 379 acres of land, in Juniata township.</p> <p>John Kelly and Elizabeth Henry were married on the 1st January 1826; at which time he owned the land out of which the plaintiff claimed her dower in this action. Mrs. Kelly, at the time of her marriage, owned a small house and lot in the village of Mussersburg, and some personal property, which Kelly took possession of, shortly afterwards.</p> <p>Kelly treated his wife with much cruelty, and soon after the birth of a child in the spring of 1827, quarrels ensued in reference to it, which resulted in his beating her and finally kicking her out of the house; he retaining the child. On the 6th April 1827, Mrs. Kelly made information against her husband, before a justice of the peace, for assault and battery. At the hearing, on the 8th April, a compromise was effected between them, and articles were signed, whereby they agreed to live separate, that Mrs. Kelly should keep the child, that each should have the property which belonged to them respectively, and neither of them should claim anything from the other. This agreement was lost, and could not be produced on the trial, but the justice by whom it was drawn, testified as to his recollection of its contents.</p> <p>The parties never afterwards lived together, and Kelly retained his wife’s personal property. On the 13th July 1842, he conveyed the premises out of which dower was claimed to William Walsh, the defendant; and died in 1856.</p> <p>The court below (Kimmell, P. J.) charged the jury that the plaintiff was not estopped by the articles of separation, from claiming her dower in her husband’s lands, and directed them to find for the plaintiff.</p> <p>To this instruction the defendant excepted; and, a verdict and judgment having been rendered for the plaintiff, he removed the cause to this court, and here assigned the same for error.</p>

Habeas Corpus before the Court in banc.* This was a writ of habeas corpus issued at the relation of Daniel Barr against Mason Naylor, a constable, returnable before the Supreme Court in bane. It was heard before Justices Lewis, Woodward, and Knox. The facts are fully stated in the opinion of the court.

* This was an action of assumpsit by Edward Wright against Henry Killion and Daniel Killion, trading as H. & D. Killion, on a book account for goods sold and delivered, amounting to $107.68.

* On the 2d December 1857, on motion and affidavit, a judgment was entered in the court below in favour of Stephen Colwell, to the use of David Reeves and Samuel J. Reeves, against Samuel R. Wood, on a bond and warrant of attorney, dated the 29th September 1846, conditioned for tbe payment of $8000 in two years from the date thereof, with lawful interest.

<p>Error to the District Court of Philadelphia. *</p> <p>This was an action of debt by William Agnew, trading as Agnew & Co., against the Independent Mutual Insurance Company, upon a policy of insurance against fire, issued by the defendants on the 3d December 1853, and renewed from year to year; whereby they insured the plaintiff against loss or damage by fire, to the extent of $10,000, upon a stock of merchandise contained in a four story brick and iron store, No. 196 Chestnut Street, Philadelphia. The plaintiff was insured in six offices, for an aggregate amount of $40,000.</p> <p>The policy contained the following condition: — “ In case of fire, or of loss or damage thereby, it shall be the duty of the insured to use their best endeavours for saving and preserving the property, and it is mutually understood that there can be no abandonment to the insurers of the subject insured.”</p> <p>On the morning of the 2d January 1857, about two o’clock, the premises were discovered to be on fire in the third story, which was occupied by a daguerreotypist; and the p-la-mtiff, who occupied the first and second stories of the building, proceeded hastily to remove his goods, consisting of a valuable and costly stock of dry goods. The plaintiff’s goods were seriously damaged by water, and to some extent by fife, and during the process of removal it was alleged that many of them were lost or stolen.</p> <p>After the fire, appraisers were appointed to estimate the plaintiff’s damage by fire. The agreement provided that the appraisement and estimate so made, should be binding on both parties “so far as regards such appraisement; it being understood, that this appraisement is without reference to any other questions within the terms and conditions of the policy, and being so far only as regards the value of such property, as may be found to have been injured or destroyed by said fire.”</p> <p>Before the appraisers, the plaintiff presented a claim for a large amount of stolen goods; and, on reference to the president of the company, he agreed that they should ascertain the amount of the goods which had been stolen, upon the same conditions, and in the same way, that they were authorized to do in reference to the goods injured by fire.</p> <p>The appraisers made an award, wherein the plaintiff’s damage by fire, wras estimated at $11,102.51, and, by compromise, there was allowed for goods alleged to be lost or stolen, $9388.97.</p> <p>On the trial, the defendants excepted to the admission in evidence of the agreement on the part of the president of the company, that the appraisers should estimate the value of the goods lost or stolen; and also of the report or award of the appraisers.</p> <p>The court below (Hake, J.,) in answer to a point presented by the defendants, instructed the jury as follows: — “ The policy is against losses by fire, and does not extend to losses by theft, merely as such. But if it became, and was necessary to throw open the doors of the building to admit firemen and other persons from the street, and to remove the goods in order to prevent their destruction by fire, and if, in consequence of the measures thus taken, some of the goods were lost or destroyed, although by theft, the insurers will be answerable for the loss, because it is a sacrifice for their benefit.”</p> <p>To this instruction the defendants excepted; and a verdict and judgment having been rendered for the plaintiff for $5618.61, they removed the cause to this court, and here assigned for error, inter alia, the admission of the evidence excepted to on the trial, and the foregoing instruction to the jury.'</p>

Appeals from the Orphans’ Court of Philadelphia.* These were two appeals by Michael Pray, from the decrees of the court helow, upon his accounts as trustee under the will of John Pray, deceased, for Mary Ann Spicer and Ann M. Hallett. John Pray, by his last will, dated the 28d of June 1843, whereof he appointed the appellant the sole executor, devised as follows:— “ 2.

This was an action of slander by John Gsell against Samuel Chubb, in which the declaration alleged that the defendant had charged the plaintiff with the larceny of a whip, the property of the defendant.

This was an action of slander by James B. Hesser and Harriet his wife, against William Gr. .Hartranft, for words alleged to have been spoken of the wife, charging her with being a whore. After proving the words substantially as laid, the plaintiffs called Valeria Hesser, and offered to prove the following: — “ About two years ago, Hartranft came and asked the plaintiff if he could not come to see her once in a while — that he could come and no one would know it.

This was an ejectment by John G. Miles and Michael Berry, executors of Dr. Peter Shoenberger, deceased, against Andrew P. Wilson and… Held: appropriated, and distributed, as indicated in the following clauses of his will:— “And as to the remaining part of my real estate not herein-before specifically devised, I devise the same to my executors, to be sold either at public or at private sale, whenever they shall consider it most to the interest of my estate to sell the…

This was an action of debt by William McBride and Effy Derr, administrators of John E. Derr, deceased,, to recover $85, with interest from 1st April 1857, on a bond given by the defendant to the plaintiffs, to secure the purchase-money of certain real estate of John F. Derr, deceased, sold by the plaintiffs by virtue of an order of the Orphans’ Court of Montour county, under proceedings in partition.

<p>Error to the Common Pleas of Northumberland county.</p> <p>This was an action of covenant by William H. Kase against Simon P. Kase, on an article of agreement, under seal, for the sale of the lease, stock, and fixtures of the Roaring Creek Furnace. The defendant pleaded covenants performed, absque hoc; and that certain attachment executions, amounting to $2232.52, had been issued against the plaintiff, out of the Court of Common Pleas of Montour county, and served on the defendant as garnishee.</p> <p>On the trial, the principal grounds of defence were, that there was a great deficiency in the estimated quantity and quality of the stock purchased; and that the defendant had been induced to make the purchase by the fraudulent representations of the plaintiff as to the amount of the business done at the furnace.</p> <p>The court below (Jordan, P. J.) instructed the jury that, if the defendant agreed to purchase at the estimated quantity and quality, he was not entitled to a deduction for any deficiency; but if he purchased, relying upon the plaintiff’s representations as to quantity and quality, and there was a deficiency in these respects, or if the plaintiff sold him. articles to which he had no right, the defendant was entitled to relief to the extent of the deficiency. And that the attachment executions were no bar to the action.</p> <p>. To this charge the defendant excepted; as also to the refusal of the court to permit them to send out with the jury a calculation of the alleged items of deficiency in the stock; and the jury having found a verdict in favour of the plaintiff for $2923.31, and that the same had been attached in the hands of the defendant since the commencement of the present suit'; and judgment having been entered on the verdict, the defendant sued out this writ, and here assigned the same for error.</p>

These were two actions of assumpsit, the first, by Lewis Palmer against Levi Sterner, on a promissory note at sixty days for $155, dated the 9th September 1857, made by the defendant in favour of James F. Linn, and by him endorsed to the plaintiff; and the other, by the same plaintiff against Charles Penny, on a similar note, of the same daté, and for -the same amount.

<p>Two lots of ground were conveyed to the commissioners of a county and their successors in office, in fee simple, for the purpose of erecting thereon a court-house, jail, &c.; the county was subsequently divided, and the seat of justice removed, and trustees were appointed to sell the lots and public buildings and divide the proceeds between the two counties: Held, that on the removal of the seat of justice, and the discontinuance of the original uses for which the lots were conveyed, they did not revert back to the heirs of the original grantor.</p>

<p>Error, to the Common Pleas of Montour county.</p> <p>This was an action of assumpsit by Work, Young & McCouch against Simon P. Kase, as endorser of a promissory note, of which the following is a copy: — ■</p> <p>“ $ 1000.00.</p> <p>Danville, August 25, 1857.</p> <p>“ Sixty days after date I promise to pay to the order of S. P. Kase, Esq., at the City Bank, Philadelphia, one thousand dollars, without defalcation, value received.</p> <p>“ Credit the drawer.</p> <p>Smith B. Thompson.</p> <p>“ Simon P. Kase.</p> <p>Endorsed — “ Simon P. Kase.”</p> <p>The defendant gave the following notice of special matter :—</p> <p>“You are hereby notified that the defendant, Simon P. Kase, will, upon the trial of the above-stated suit, prove that the promissory note in plaintiffs’ declaration mentioned, dated 25th August 1857, made by Smith B. Thompson for one thousand dollars, drawn payable to the defendant, Simon P. Kase, or order, at the City Bank, sixty days after date, and endorsed by said defendant, Simon P. Kase, was endorsed by him, the said Simon P. Kase, for the sole benefit and accommodation of the said Smith B. Thompson, and without any consideration being paid by said Thompson, or any other person, for the same: but that said note note was endorsed by defendant for the purpose of enabling said Thompson to raise money thereon by procuring the same to be discounted. [He will further prove, that said promissory noté was not received by plaintiffs from said Smith B. Thompson in the regular course of business, and for a good and valuable consideration.] He will prove that at the time said plaintiffs received from Smith B. Thompson the above-mentioned promissory note, they, the plaintiffs, held a certain draft, which had been drawn by the Montour Iron Company, J. P. & J. Grove, agents,, upon said Montour Iron Company, dated May 11, 1857, for the sum of five hundred and ninety-two dollars and six cents, payable sixty days after date, to Smith B. Thompson or order, and accepted by said Montour Iron Company, which draft the said Smith B. Thompson had endorsed and delivered to said plaintiffs. That after the said draft had become due and had been protested for non-payment, the said Smith B. Thompson, at the instance and request of said plaintiffs, received from said plaintiffs the said draft hereinbefore mentioned, for the purpose of collecting the same of the Montour Iron Company for said plaintiffs, under an agreement with said plaintiffs, that if he, Thompson, collected and received the money for said draft, he would pay the same to said plaintiffs or their order, and if he failed to collect the same, that he would then return said draft to the plaintiffs; and that the said promissory note in plaintiffs’ declaration mentioned was, then and there, (viz. at the time and place that said Thompson received from plaintiffs for collection the aforesaid draft) delivered by said Thompson to said plaintiffs in pledge, 'and as security that said Thompson would pay over to the said plaintiffs, or to their order, the money which he should collect and receive on said draft, or if he failed to collect of the Montour Iron Company the amount of the said draft, that then he, said Thompson, would return said draft to the plaintiffs, and that upon paying said money, if collected, or returning said draft, if not collected, the said plaintiffs should deliver up to him the said promissory note. He will further prove that said Thompson failed to collect said money on said draft mentioned, or any part'‘thereof, from the Montour Iron Company, and that afterwards, and before the bringing of this suit, the said Smith B. Thompson, or some other person for him, did offer to return said draft to the plaintiffs, and did produce and exhibit the said draft to said plaintiffs, and request said plaintiffs to receive the same and deliver up said promissory note. That said plaintiffs refused to receive said draft from said Thompson, or from the person then and there on behalf of said Thompson making tender of said draft, and refused to deliver up said promissory note. You are further notified, that you will be required to prove on the trial of this cause the consideration paid by you to said Smith B. Thompson for said promissory note in your declaration mentioned.”</p> <p>Under this notice, the defendant, on the trial, offered in evidence, the deposition of Smith B. Thompson, the maker of the note, to prove the facts therein set forth, with the exception of the part within brackets. Before the deposition was taken, the defendant had executed a release to the witness. The court below admitted the evidence, notwithstanding an objection by the plaintiffs, and sealed a bill of exceptions. And a verdict and judgment having been given for the defendant, the plaintiffs removed the cause to this court, and here assigned the same for error.</p>

<p>The equitable transferee of a non-negotiable note takes it subject to all the equities existing between the original parties at the time of the transfer.</p> <p>If one give a promissory note to another in order to obtain possession of his goods, which are wrongfully withheld, it is without consideration between the parties to it.</p> <p>Money paid in order to obtain possession of goods detained by the defendant without colour or pretence of right, may be recovered back in an action of indebitatus assumpsit for money had and received to the plaintiff’s use.</p>

<p>It is not e'rror to admit the testimony of a private surveyor to prove the dividing-line between two counties; the line never having been run or located by the commissioners appointed for that purpose, or by any other authorized person.</p> <p>In an action on a bond given for the purchase-money of real estate, after the defendants have given proof of a failure of title as to a part of the lands conveyed, it is competent for the plaintiff to prove that the defendants have purchased the outstanding title, and have thereby obtained a complete title to the premises. He is entitled to recover on the bond, making an allowance to the defendants for the price paid for the outstanding title, with interest and expenses.</p>

This was an appeal by Noah Sturtevant, Joseph Maxfield, Thomas H. Reilly, and Charles Wannemacher, from the decree of the court below, distributing the proceeds of a sheriff’s sale of the estate of Marcus G-. Heilner. The parties agreed upon the following statement of facts:— On the 1st January 1854, the Locust Mountain Coal and Iron Company leased to Marcus Gr. Heilner a certain tract of coal land, in Conyngham township, Columbia county, for the term of thirteen years.

* This was an appeal by Abraham Aurand from the decree of the court below, distributing the proceeds of the sale of the real estate of Samuel Aurand, deceased, in the hands of his administrator. On the 21st April 1834, Abraham Aurand obtained a judgment in the Court of Common Pleas of Union county against Samuel Aurand, for $600, on which the defendant paid interest up to the time of his decease, but which was not revived by scire facias.

<p>An agreement in writing with certain creditors that they will accept a composition of forty per cent, in full of their respective claims, and that their debtor shall convey all his real and personal property to a third person, who is to pay the forty per cent, as agreed upon; and an absolute conveyance accordingly; constitute together an assignment in trust for creditors within the meaning of the Act of 1818 ; and must be recorded together within thirty days in the proper county; otherwise, they are void against the other creditors of the assignor.</p> <p>The proceeds of property in the hands of an assignee in trust for the benefit of creditors, under an unrecorded assignment, are liable to be attached at the suit of any of the creditors of the assignee, by process of attachment execution.</p>

<p>Appeal from the Common Pleas of Montour county.</p> <p>This was an appeal by William Hancock, from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of John Moore.</p> <p>On the 24th April 1846, John Moore executed to William Donaldson and John McQuhae four bonds for $1000 each; two of them payable on the 1st May 1850, and the others, on the 1st May 1851, with interest; and at the same time, he executed a mortgage of his real estate, to secure their payment.</p> <p>On the 18th December 1858, the mortgaged premises were sold by the sheriff, under proceedings upon the mortgage; and the proceeds of sale, amounting to $3448, were paid into court for distribution. The appellant, who was the assignee of one of the bonds secured by the mortgage, claimed a priority of payment over the other bonds, under the following circumstances :—</p> <p>On the 26th June 1850, William Donaldson (who survived McQuhae) assigned one of these bonds, payable the 1st May 1850, to Mary Simington. This assignment contained a guarantee, by Donaldson, of the payment of the principal and interest due on the bond at the date of the assignment. And the auditor appointed to report distribution of the fund, received, and reported to the court, parol evidence, that Donaldson, at the time of executing the assignment, agreed that this bond should be first paid out of the mortgaged premises. Donaldson, at this time, was the holder of the other three bonds; which, on the 5th and 9th September 1850, he assigned to different persons. These assignments were under seal, and purported to be for a valuable consideration; but no evidence of consideration was given before the auditor. The subsequent assignees had no notice of the previous assignment to Mrs. Simington.</p> <p>Mary Simington, on the 27th March 1856, assigned her bond to Oscar E. Moore; and on the 28th March 1856, Moore assigned it to William Hancock, the appellant.</p> <p>The court below (Jordan, P. J.) decreed that the assignees of the several bonds were entitled to be paid pro rata, and distributed the fund accordingly; whereupon this appeal was taken.</p>

<p>In order to divest the owner’s title, by a sale of the land, as unseated, for taxes, it is necessary that the amount of the taxes and costs should be paid by the purchaser, and the deed delivered to him, during the treasurer’s term of office. The treasurer, after the expiration of his official term, has no authority to receive payment, or to deliver the deed, although previously acknowledged.</p> <p>The treasurer has no right to accept the purchaser’s promissory note for the amount of taxes and costs; it must be paid in cash.</p>

<p>Parties may proceed under the compulsory arbitration law, waiving the original rule and the right of appeal.</p> <p>An agreement to refer all matters in variance to arbitrators to be chosen “ according to law, at the prothonotary's office,'' on a day therein named, with a waiver of the right of appeal, and a stipulation that the proceedings should be under the Arbitration Act, unless the parties agree otherwise; is to be deemed a proceeding under the compulsory arbitration law.</p> <p>If the parties to a reference under the compulsory arbitration law, agree that the award shall be final and without appeal, such stipulation will be enforced by striking off an appeal taken in violation of it.</p> <p>Under the compulsory arbitration law, an award can be set aside, only for misbehaviour of the arbitrators, or where it has been procured by corruption or undue means.</p> <p>An award for a sum certain, is not vitiated by a collateral agreement between the parties, that the party in whose favour it is made, should surrender, at a future time, the possession of certain premises, to the other party.</p> <p>But it is in the power of the court, so to control the execution, as to carry out the agreement of the parties.</p> <p>An agreement to waive the right of appeal, does not take away the power of this court to review the proceedings on writ of error.</p> <p>Where it is agreed, that an award shall be final and without appeal, the striking off of the award, is in the nature of a final judgment, to which a writ of error will lie.</p>

This was a scire facias on a forfeited recognisance in the Quarter Sessions. Held: that a corporation could be held liable in an action- for a malicious prosecution. But the question here is' not, whether a corporation can prosecute or be prosecuted for an offence. . It- is simply, can a corporation suffer loss or injury by the commission of a crime or misdemeanor.

This was an appeal by Sarah E. Yeager, from the decree of the court below dismissing her petition for a review of the accounts of Clarissa Amberson, her guardian. On the 27th July 1840, Clarissa Amberson was appointed the guardian of the appellant, then a minor under the age of fourteen years.

This was an indictment against George W. Williams, charging him with making and passing counterfeit bank notes. It contained seven counts, on the sixth only of which the defendant was convicted.

This was an ejectment by Catharine McCue and others against Michael Johnson and others, for sixty-one acres of land in Donegal township, Butler county. On the 28th May 1849, Michael Maloney, being seised of the premises in question, made a will, by which he devised the same to Michael C. Maloney, a grandson; and by the same will he devised other parts of his farm to Nancy Johnson, Jeremiah Maloney, and Daniel Maloney.

This was an appeal by Theophilus L. Heyer, one of the executors of Jacob Stineman, deceased, from the decree of the court below, making a joint distribution of the assets in the hands of the appellant and his co-executor. On the 12th October 1853, .the will of Jacob Stineman was admitted to probate, and letters testamentary were granted to Jacob Stineman, Jr., and Theophilus L. Heyer, the appellant.

This was a proceeding on behalf of the Overseers of the Poor of the Township of Wayne against the Overseers of the Poor of the Township of Shenango, to charge the latter township with the expenses of a case for the removal of Naomi Gunsolis, an insane pauper, to the Pennsylvania State Lunatic Hospital, and with her maintenance there, &c. In May 1857, the mother of Naomi Gunsolis presented a petition to the Court of Quarter Sessions of Lawrence county, setting forth that her…

Error, to the Common Pleas of Armstrong county. This was an action of trespass by Samuel Rhoads against Matthew Gilleland, George Cousins, a constable, and Thomas L. Long, his deputy, for seizing and selling a certain piebald horse of the plaintiff, notwithstanding an appraisement of the same under the exemption law of 1849.

<p>Error to the Common Pleas of Venango county.</p> <p>This was an ejectment by John Porterfield against Armstrong Ogden and Joseph Ogden, for 30 acres of land on the west side of, and adjoining, the Allegheny river, in Scrubgrass township, Venango county.</p> <p>The tract of land, of which the premises in dispute were a part, was originally settled by John Fritz, under an agreement with John Field, the warrantee, dated the 2d June 1800, whereby it was agreed that when the settlement should be completed, Field should procure a patent for the land, and convey to Fritz 200 ■acres thereof, to he divided by a straight line on the end of the place, including all the improvements of the said John Fritz, as a compensation for his making the actual settlement.</p> <p>About 1819 or 1820, Walter Lowérie, the agent of John Field, the warrantee, and Fritz, the settler, ran a line upon the ground, dividing the land between the parties, in accordance with the agreement; which was ever afterwards recognised and treated as the division line, by the parties, and those claiming under them. It was known as the “Lowerie line.”</p> <p>On the 26th November 1836, James Porterfield, under whom both parties claimed title, had become the owner of the entire tract; and, on that day, he made a contract with his brother, John Porterfield, the plaintiff below, that, in consideration that John Porterfield would take out the office title to the land in the name of James Porterfield, he would convey to him the tract, reserving to himself “ 200 acres, with the usual allowance, off the south end of said tract, laid off by a parallel line with Thomas Kerr’s line,” adjoining on the south.</p> <p>John procured a patent to be issued to James Porterfield, on the 19th December 1837; and on the 30th June 1845, the heirs of James Porterfield, who was then deceased, conveyed the tract to John Porterfield, in fee, by the following description: — “All the right, title, interest, and claim of the said parties of the first part, to what is termed the land jobber’s end or part of a certain tract or lot of land, situate in Scrubgrass township, Venango county, Pa., containing three hundred and ninety-eight acres and fifty-eight perches and allowance, &c. Conveyed by patent from the Commonwealth of Pennsylvania to said James Porterfield, the nineteenth day of December, one thousand eight hundred and thirty-seven, enrolled in Patent Book IL, vol. 38, page 333. (Now it is understood that this conveyance includes all of the aforesaid tract except two hundred acres with allowance, being the south part of said tract, or the part articled for the benefit of John Eritz with John Field, dated 2d of June 1800.)”</p> <p>On the 6th May 1846, Nancy Porterfield, the mother of the plaintiff below, conveyed to Armstrong Ogden, one of the defendants, her life estate in the 200 acres reserved by the heirs of James Porterfield, off the south end of the tract. On the 26th April 1847, Samuel Porterfield, one of the brothers and heirs of James Porterfield, conveyed to Armstrong Ogden his interest in the same premises. And on the 10th May 1847, Joseph, Robert, and George Porterfield, other heirs, conveyed to him their respective interests.</p> <p>On the 18th October 1852, John Porterfield, the plaintiff, contracted to convey to Ogden his interest in the same premises, as one of the heirs of James Porterfield, deceased, by the following agreement:—</p> <p>“ Article of agreement, entered into the 18th day of October, A. D. 1852, between John Porterfield, one of the heirs at law of James Porterfield, deceased, late of Scrubgrass township, Venango county, Pa., of the first part, and Armstrong Ogden, of the same place, of the second part, witnesseth, that the said John Porter-field agrees to sell and hereafter convey, all his right, title, interest, claim, and also the right, title, interest, and claim of William Porterfield and Nancy Smith, heirs at law of James Porterfield, deceased, of, in, and to the within-described lot or parcel of land, situated in the township of Scrubgrass, to the party of the second part, by lands of Thomas Kerr on the south, by lands of Dr. Crawford on the west, by land of John Porterfield on the north, and the Allegheny river on the east. For and in consideration thereof, the said party of the second part agrees to pay $600, in •manner following: $200 on the 1st of April 1853, and $200 on the 1st of April 1854, and the remainder, $200, on the 1st ot April 1855, at which time the said John Porterfield agrees to make, execute, and deliver to the said A. Ogden, his heirs or assigns, the quit claims'and releases of all their right, title, interest, and claim, of, in, and to the within-described lot, tract, piece, or parcel of land, as heirs at law of James Porterfield, deceased, but no other; said James Porterfield having died seised of the same intestate, and without lawful issue ; said tract of land containing 200 acres, and allowance. In witness whereof we have set our hands and seals, the day and date first above written.”</p> <p>Armstrong Ogden procured a survey to be made of 200 acres, and allowance, off the south end of the tract, by a line running parallel with Thomas Kerr’s line, and took possession, claiming up to that line. The “ Lowerie line, is about 19 perches further south, and Porterfield claimed to it. The land in controversy lies between these two lines.</p> <p>The court below (McCalmont, P. J.), in answer to numerous points presented by both parties, instructed the jury — That if Field and Fritz, by a surveyor of their mutual selection, procured a survey of a line, and marked on the ground, to designate the limits of their mutual claims to the tract in question, in which they each acquiesced ever afterwards, not only they, but all claiming under them respectively, or by the designation of boundary so made by them, are bound by it, although the boundary so marked may not correspond with the amount of land in their deeds. That if the heirs of James Porterfield knew that Field and Fritz had made and marked a consentable division line to designate the respective ownerships of the landowners and settler, and, in their conveyance to the plaintiff, recognised and adopted it, or otherwise designated it as the southern boundary of the part conveyed to him, they and all claiming under them by subsequent conveyance and bounded on the north by land of John Porterfield, are bound by it, although entirely mistaken as to the quantity of land south of it. That even if there was a mistake in establishing that line, if, with knowledge, it was acquiesced in for thirty years, the mistake could not, after such a period of time, be corrected; it would bind the parties prior to James Porterfield’s purchase, if they acquiesced in it. And that if James Porterfield, or his heirs, prior to the purchase by Ogden, with knowledge of the facts, agreed to that line, without further survey, it would bind; if not, it would be otherwise, and the defendant would be entitled to a verdict.</p> <p>To this charge the defendants excepted; ‘and a verdict and judgment having been rendered for the plaintiff, they removed the cause to this court, and here assigned the same for error.</p>

This was an action of replevin by Stewart Cowan against David Younkin for a quantity of shingles made by the defendant on a tract of land, the title to which was claimed by both parties. On the 30th October 1773, a tract of land was surveyed to William Plunket, about the location of which there was no difficulty, the lines being run upon the ground.

<p>Error to the Common Pleas of Brie county.</p> <p>This was an action on the case by Robert King against Henry Van Dresor, a constable, for selling the plaintiff’s goods under an execution, in disregard of his claim to have the same appraised and set apart to him, under the provisions of the exemption law of the 9 th April 1849.</p> <p>The only point raised was, whether the plaintiff could recover in this form of action. The defendant below requested the court to instruct the jury that the plaintiff’s remedy, if any, was in trespass, and that an action on the case would not lie.</p> <p>The court below (Derrickson, J.) answered this point in the negative, to which the defendant excepted; and a verdict and judgment having been rendered for the plaintiff for $120.31, the defendant sued out this writ, and here assigned the same for error.</p>

<p>Appeal from the Orphans’ Court of Allegheny county.</p> <p>This was an appeal by The Commonwealth from the decree of the court below, upon the accounts of the Executors of Charles Avei’y, deceased.</p> <p>Charles Avery died in 1858, leaving a widow, but neither father, mother, children, nor lineal descendant. By his will he devised and bequeathed his whole estate to his executors in trust for certain purposes, therein mentioned. The personal estate amounted to $438,760.30, and the real estate to $30,900.</p> <p>The widow, Martha Avery, refused to accept the provision made for her in the will; but subsequently, by an arrangement with the executors, approved by the Orphans’ Court, she received from them the sum of $80,000, and relinquished all claim to the residue of the estate.</p> <p>A part of the personal estate amounting to upwards of $100,000 was involved in difficulties, and could not be settled up within the year. And it was claimed on behalf of the Commonwealth that the sum of $80,000 paid to the widow was chargeable with the collateral inheritance tax; and also that the collateral inheritance tax, on the estate that passed by the will to the executors, not having been paid within one year from the death of the testator, was chargeable with interest at the rate of twelve per cent, per annum.</p> <p>The court below decided both points against the Commonwealth, whereupon this appeal was taken.</p>

<p>Appeal ik Equity from the Common Pleas of Indiana county.</p> <p>This was a bill in equity exhibited by Sterrett, Robinson & Co., and other judgment-creditors of S.‘S. Jamison, against John Montgomery, late sheriff of Indiana county, James M. Richey, and James M. Beatty, to restrain the payment to the sheriff’s assignee of certain notes given to him by the other defendants, in part payment of the purchase-money of certain real estate of the said S. S. Jamison, sold under execution; and to compel the payment thereof into court.</p> <p>This bill resulted in the payment into court of the sum of $3439.39, and the appointment of an auditor to report distribution of the fund.</p> <p>John Montgomery, in 1857, being then sheriff of Indiana county, sold the real estate of S. S. Jamison, under a writ of venditioni exponas, to James M. Richey and James M. Beatty, and accepted from Richey his two judgment notes for $2600 each, and from Beatty his two judgment notes of $250 each, in part payment of the purchase-money.</p> <p>In December 1857, W. H. Weir, as attorney for different persons, had claims against the sheriff, arising out of the sale of Jamison’s property, for about $4000, and for about $300, out of other official transactions; he also, as attorney for William Reed, the appellant, had a claim of $2300 against Montgomery in his private capacity. To secure these claims, the sheriff executed to Reed, through Weir, his attorney, who had notice of the consideration of the notes, the following assignment:—</p> <p>“Whereas, H. W. Weir has a large amount of claims in his hands for collection against me, as attorney for different persons; part of which is for money collected by me, in my official capacity as sheriff of Indiana county, and part for other debts contracted by me. And whereas, I hold two judgment notes on James M. Richey, dated December 7, 1857, each for the sum of twenty-six hundred dollars; one payable 1st of April 1858, and the other 1st September 1858, with interest: also, two other judgment bonds on James M. Beatty, dated 7th December 1857, one for two hundred and fifty dollars, and the other for two hundred and fifty-five dollars; one payable 1st April, 1858, and the other 1st September, ’58, with interest. Therefore, and in consideration of my aforesaid indebtedness, and in payment thereof, I do hereby assign, transfer, and set over three thousand one hundred and five dollars of the aforesaid notes, to those said creditors to whom I am officially liable, as their said attorney may designate, to be distributed as he may see proper. And, if I fail to pay the balance of my official liabilities or indebtedness in his charge for collection, before the 1st September 1858, the time the last of said notes fall due, then, and in that event, I hereby assign and transfer whatever amount of said notes may be required to pay the same in full. I further assign and transfer three hundred dollars thereof to William M. Stewart, in payment of claims in his hands for collection, for which I am officially liable. The balance of said notes, I assign and transfer to William Reed, in payment of my indebtedness to him, hereby excepting and reserving three hundred and forty-five dollars to myself, out of the first money paid on said notes, to be applied to the payment of a claim now pressing collection against me.” .</p> <p>Under this assignment, William Reed claimed to receive out of the fund in court, which was the proceeds of the notes assigned, the sum of $926.60, the ascertained amount of Montgomery’s individual indebtedness to him.</p> <p>The auditor rejected this claim, and distributed the fund to the judgment-creditors of Jamison; and the court below having confirmed his report, and decreed distribution accordingly, this appeal was taken.</p>

<p>Error to the Common Pleas of Cfreene county.</p> <p>This was an action of covenant by Samuel Thompson against Samuel Stokely, on articles of agreement for the conveyance of a tract of land on payment of the purchase-money.</p> <p>On the 20th March 1833, Sapiuel Stokely, by articles of agreement, sold to Samuel Thompson 200 acres of land in Wayne township, for the sum of $100, payable in instalments, with interest thereon; and covenanted, “ upon full and complete payment of the said sum of money, together with interest, at the times mentioned,” to make to Thompson a deed in fee simple for the land.</p> <p>Thompson paid the full amount of the purchase-money and interest, but not at the times when it became due according to the terms of the agreement; and Stokely contended that he ivas not bound to convey until payment of interest on the arrears of interest due; and this was the only question in the cause. •</p> <p>The court below (Gilmore, P. J.) instructed the jury, that the defendant was not entitled to have interest calculated on the interest, from the times the several payments became due; to which the defendant excepted; and a verdict and judgment having, been rendered in favour of the plaintiff for $2500, to be released on the execution of a deed, according to the terms of the agreement, the defendant sued out this writ, and here assigned the same for error.</p>

<p>By the law of Virginia, the retention of the possession of personal property by a vendor, is primd facie evidence of fraud.</p> <p>A fraudulent receipt for payment is a circumstance to be considered in testing the covinous design in the original transaction.</p> <p>Circumstantial evidence may be given in case of alleged fraud, to show that a receipt purporting to be given for one purpose was in reality intended for a different transaction; that it was to operate as a cover of a mere conditional sale.</p> <p>In cases of alleged fraud, an item of evidence is not to be excluded because it is not, in itself, proof of fraud, if it may tend to establish it in connection with other facts in the case. Great latitude is always allowed in the investigation of fraud.</p> <p>Where & primd facie case of fraud is proven, the sufficiency of the evidence to rebut it, is exclusively the province of the jury. They are to judge not only of the facts, but of the inferences fairly deducible from them.</p>

These were two actions of scire facias on judgments, one for ¡$4000, and the other for ¡$10,000, entered by confession, on the 14th July 1842, in favour of Sylvanus Lothrop “ for use,” against Lewis Peterson, Peter Peterson, and James T. Kincaid.

<p>A certiorari to remove the proceedings on an order for the removal of a pauper to the place of his legal settlement, does not bring up the evidence received by the justices, or by the court below, on appeal. This court is confined to a review of the regularity and legality of the proceedings.</p> <p>An order of two justices for the removal of a pauper, followed by notice, and an ineffectual attempt to appeal, after the time has elapsed for that purpose, is conclusive evidence of his place of legal settlement, on a subsequent proceeding for the same purpose.</p> <p>In such case, it is most proper to proceed on the first order of removal; hut if a second proceeding be had, the adjudication on the first is conclusive between the parties.</p>

<p>Appeal from the Common Pleas of Armstrong county.</p> <p>This was a libel for a divorce, a vinculis matrimonii, exhibited .under the Act of 8th May 1854, by John B.. Shoop against Mary M. Shoop, his wife, on the ground that she had by cruel and bar‘barous treatment rendered hi's condition'intolerable and his life burdensome, and had thereby forced him to withdraw from his house and family.</p> <p>' The court below decreed a divorce from the bonds of matrimony, and that the libellant should pay to the defendant, for her reasonable support and alimony, the sum of $33 semi-annually, until the further order of the court; and that the libellant should pay the costs of suit.</p> <p>The libellant, thereupon, took this appeal from so much of the decree as directed him to pay alimony and the costs.</p>

<p>Mere inadequacy of consideration, without warranty or fraud, is no defence to the payment of a bill or note given for the purchase-money of goods.</p> <p>The unsoundness of the article sold amounts neither to want or failure of consideration. In the absence of warranty, the soundness or unsoundness of the subject-matter of the sale has nothing to do with the consideration.</p> <p>In the absence of an agreement by the seller, the purchaser takes at his own risk as to quality. The vendor of a chattel warrants the title, and, in some cases, the species, but nothing more.</p>

<p>Error to the Common Pleas of Greene county.</p> <p>This was an action of assumpsit, originally commenced before a justice of the peace, by William G. Elder, collector of school taxes of Aleppo township, against Alexander McCracken, to recover $6.76, the amount of school taxes assessed on the defendant for the year 1856.</p> <p>On the 4th November 1856, the plaintiff below was appointed collector of school taxes of Aleppo township for that year; and a duplicate thereof was delivered to him, wherein the defendant was charged with the amount of taxes claimed in this suit, accompanied by a warrant for the collection of the same, whereby the plaintiff was required to pay the amount of his duplicate to the treasurer of the said school district, on or before the 1st December 1857. Prior to that date, Elder paid up the amount of his duplicate in full, including the amount assessed upon the defendant. This suit was brought on the 14th October 1858.</p> <p>On the trial, the defendant offered to prove that, after this tax had been assessed, the school directors of Aleppo township entered into a contract with him for the building of a school-house, for which they were to pay him a certain sum, and to release him from any school tax he then owed the township ; that he was ready and willing to perform his contract, in manner and form as agreed upon, but that the directors refused to allow such house to be built; and that for several years before the contract was made, to the present time, there has been no school nearer than four miles of defendant’s house.</p> <p>The court below ruled out this evidence, and the defendant excepted.</p> <p>The defendant’s counsel then presented the following points in writing, upon which they requested the court to instruct the iury:-</p> <p>... 1. That the warrant given in evidence by the plaintiff, being dated on the 4th November 1856, it was a good and valid warrant for two years from the date thereof, upon which to collect the unpaid taxes, and this suit having been brought before the two years had expired, was prematurely brought and cannot be sustained.</p> <p>To this point, the court below (Gilmore, P. J.) returned the following answer: — “ It was competent for the board to issue their warrant returnable in one year or less. They might have extended it to two years, either when first granted, or by amendment before the return day. Not having extended the time, the warrant expired at the end of the year, and the plaintiff can maintain this action, if he has not been exonerated from the payment of these taxes.”</p> <p>2. That if the warrant in this case required the same to be returned in less than two years from the date thereof, it is contrary to law, and is therefore null and void.</p> <p>Answer. — “ We answer this in the negative.”</p> <p>To this instruction the defendant excepted; and a verdict and judgment having been rendered for the plaintiff for.$7.02, the defendant sued out this writ, and here assigned for error: 1; The rejection of the evidence mentioned in his bill of exceptions:</p> <p>2. The answers to the points presented on the trial.</p>

<p>Appeal from the Common Pleas of Cambria county.</p> <p>This was an appeal by David R. Galway from the decree of the court below distributing the proceeds of a sheriif’s sale of the real estate of Erancis Seitz.</p> <p>The proceeds of sale, amounting to $650, having been paid into court, an auditor was appointed to report distribution of the fund among the lien-creditors. The judgment liens greatly exceeded the amount of the fund in court.</p> <p>The appellant, David R. Galway, was the holder of the first judgment lien, amounting to- $621.28, with interest and costs. And before the auditor, Erancis Seitz, the debtor, was called and received as a witness on behalf of the junior lien-creditors, to prove, a partial payment of the appellant’s judgment.</p> <p>Seitz testified to a payment of $215.60 on account of the appellant’s judgment; and also, that he had assigned to Galway a judgment in his favour against Charles Lehman for $173.45, in part payment of the appellant’s judgment against him. The following is a copy of the. assignment:—</p> <p>Erancis Seitz "| In the Common Pleas of Cam-</p> <p>bria county.</p> <p>v. > No. 125, September Term 1854.</p> <p>Judgment . . $173.45</p> <p>Charles Lehman. J Interest from 13 Dec. 1854.</p> <p>For value received, I do hereby assign the above judgment to D. R. Galway. Witness my hand and seal, this 12th day of November 1855. Francis Seitz. [ l. s. ]</p> <p>Witness, T. L. Heyer.</p> <p>The auditor allowed these credits upon the appellant’s judgment, and awarded the balance of the fund to junior lien-creditors. To this report the following exceptions were filed by Gal-way: 1. The judgment of D. R. Galway should have been allowed; in full: 2. The assignment of the judgment against Charles Lehman, imports sufficient consideration on its face, and cannot he impeached by parol: 3. But if it could, the testimony of the defendant in the suit is inadmissible for that purpose.</p> <p>, The court below overruled these exceptions, and confirmed the report of the auditor, whereupon, this appeal was taken.</p>

<p>Error, to the Common Pleas of JSrie county.</p> <p>This was a writ of fieri facias, issued on a judgment in favour of John Curtis against Joseph L. Cook; which was levied on a part of the defendant’s real estate, and subsequently set aside by the court.</p> <p>On the 20th December 1857, John Curtis obtained a judgment against the defendant, in the court below, for $1106.</p> <p>On the 14th October 1858, & fieri facias was issued against the defendant, at the suit of Weiller & Ellis, elder judgment-creditors, by virtue of which a levy was made on five different pieces of real estate belonging to the defendant; an inquisition was held, and the property extended at the annual rental of $1600. The defendant accepted the premises at the valuation.</p> <p>On the 28th December 1858, the plaintiff issued this writ of fieri facias, and caused the same to be levied on other real estate of the defendant, not included in the extent. This property was bound by the lien of the judgment, but had been aliened by the defendant on the 17th June 1858. An inquisition was held, and the property condemned; and on the 22d March 1859, the court below, on application of the defendant, set aside the writ and all procedings under it; being of opinion that the issuing of it was prohibited by the Act 26th April 1855: Brightly’s Purd. 1125.</p> <p>The plaintiff, thereupon, sued out this writ and here assigned the same for error.-</p>

<p>The county of Forest was not organized for judicial purposes until the 21st December 1857, up to which time the entry of a judgment in the county of Jefferson, created a lien upon lands within the territorial limits of Forest county.</p> <p>The Act of 20th May 1857 did not organize the county of Forest for judicial purposes, but merely gave authority to the people of that county so to organize, by the election of judicial officers.</p>

<p>Error to the Common Pleas of Erie county.</p> <p>This was an ejectment by James D. Dean against William Boardman for 27 acres of land in Union township, Erie county.</p> <p>Both parties claimed title under William Clark, who, on the 7th March 1832, was the undisputed owner of the land in controversy. On that day, William Clark and Anna his wife executed a deed of bargain and sale, purporting to convey the premises to their son, Jerry Clark, for the consideration of §400. This deed contained a receipt for the consideration, and was placed on record on the 2d May 1832, but by whom, did not appear.</p> <p>William Clark continued in possession until the 5th January 1842, when he conveyed the premises in dispute to Orlando Pat-tee ; who, on the 2d May 1854, sold and conveyed the same to James D. Dean, the plaintiff.</p> <p>The defendant claimed title under a deed from Jerry Clark and Sophia his wife, for their interest in the premises, dated the 20th August 1853, and recorded on the 2d November in the same year.</p> <p>On the trial, Jerry Clark was called as a witness by the plaintiff, and testified as follows:—</p> <p>“ The deed” (of 7th March 1832) “was never delivered to me; I never paid a dollar of the alleged consideration; I never had possession of the land, and never heard of the existence of any deed to me for it, till the defendant, in 1857, informed me of it. Erom 1832 to 1842, my father occupied the land as before, claiming it as his own, and I never claimed any title to it. In August 1853, defendant, Boardman, came to my house, and said he understood that I was dissatisfied with the manner that he had went on that land; and that he was willing to allow me something to satisfy me — he had a yoke of three-year-old cattle which he said he would give me to sign to him my right in the land as an heir of William Clark. I told him I would do it, hut thought I had no right to it. T. G. King, Esq., drew some kind of a deed, and I signed it. I understood it was to assign my interest as an heir; I thought I had none — I understood Boardman expected to get the other heirs to sign. Cattle worth about $40 to $45. A good title to the land worth about $500 to $600. Boardman made no mention, and gave no intimation of the existence of any deed from my father to me.”</p> <p>Gross-examined. — “ I had worked for my father when a young man, and thought I ought to have a claim against him. I helped pay for the land to some extent; that is, I helped to saw lumber in my father’s mill, and the proceeds of the lumber went to pay for the land. The saw logs were taken off my father’s land, and father helped to get out the lumber. I was then a young unmarried man, and lived with my father as one of the family.”</p> <p>Re-examined in ohief. — “ When Boardman called on me to purchase my interest in the land, I told him I thought I had no interest in it — that I did not know of any; he made no reply. If I had supposed that I had a title to the land, I would not have sold it short of $600. The first that I heard of there being a deed to me for the land on record, was last fall (1857). This suit was expected to come on for trial. I was subpoenaed to attend as a witness. Boardman came to me, and said he understood that I was to be a witness, and he thought it best to inform me that there was a deed to me from my father to the land, in order that I might not be surprised when the deed came into court in evidence. He said he had known of its existence many years before. Board-man resided near my father many years prior and down to 1842, while he (father) was in possession of the land, improving and claiming it as his own.”</p> <p>The court below (Derricksoít, J.), in answer to points presented by both parties, instructed the jury that, unless the deed of the 7th March 1832 was delivered to Jerry Clark, the defendant had shown no title; that the circumstances given in evidence were sufficient to rebut the presumption of delivery arising from the recording of the deed; and that, if the defendant obtained a conveyance of the land from Jerry Clark, maid fide, in such case, a bond fide purchaser from William Clark would not be estopped from impeaching the deed of 1832, under which the defendant claimed.</p> <p>To this instruction the defendant excepted; and a verdict and judgment having been rendered for the plaintiff, the defendant sued out this writ, and here assigned the same for error.</p>

Isaac Davis died in 1855, intestate and insolvent, leaving a widow and three minor children. Letters of administration on his estate were granted to John Latshaw; and on the 18th May 1855, the personal property was appraised at $144.29.

This was an appeal by Joseph C. Thornton, administrator of Joshua Russell, deceased, from the decree of the court below, dismissing the petition of the said Joshua Russell, for a review of the decree of the Orphans’ Court, upon the accounts of Robert Rogers, executor of Mary Thornton, deceased.

<p>Error to the Common Pleas of Venango county..</p> <p>'This was an ejectment by Elliott Brandon against Wallace Bannon and others, for a tract of 400 acres of land.in Sugar Creek township, Venango county.</p> <p>The tract in question was originally surveyed to William Wilson, by virtue of a warrant dated the-19th March 1796. Wilson conveyed to David Mead and Oliver Ormsby, to whom a patent was issued on the 4th April 1801. In 1806, David Mead and wife conveyed their interest in the land to Ormsby.</p> <p>About the year 1801, Oliver Ormsby placed James Bowles, an old soldier, upon the land, as his tenant. Bowles died in 1815, leaving his widow in possession; and in 1817, the widow married John Peoples, and continued to reside with him upon the land until 1823, when she died.</p> <p>John Peoples continued in possession until 1828, when he sold the land to Elliott Brandon, the plaintiff below; from whom it was recovered in an ejectment by the heirs of Oliver Ormsby, commenced on the 7th June 1842. In 1822, Peoples attempted to procure a title to the land by causing it to be sold for taxes, and subsequently surveyed to himself upon his alleged settlement and improvement.</p> <p>The plaintiff claimed title under John Peoples’s alleged adverse possession; the defendants showed title under the heirs of Oliver Ormsby.</p> <p>On the trial, the plaintiff’s counsel requested the court to charge the jury:—</p> <p>1. Whether the entry of John Peoples upon the land in controversy, in 1817, and his subsequent possession thereof, was adverse, is a question of intention, and as such is to be determined by the jury from his contemporaneous acts and declarations.</p> <p>The court below (McCalmomt, P. J.) answered this point in the affirmative.</p> <p>The defendants’ counsel also 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 tract was settled by James Bowles under Oliver Ormsby, and he remained on it till his death, and then his widow occupied, by herself or tenants, till she married John Peoples, and returned with him on to the land again, neither Peoples nor any one claiming under him can set up the statute of limitations as a bar to defeat the title of Oliver Ormsby, or his heirs.</p> <p>Answer. — “ To the defendant’s second point, we say this would, in effect, make the case a question of law; we think, under the facts of this case, the question of adverse possession is for the jury; Abraham Selders, one of the defendant’s witnesses, testifies that Bowles said he had a right for life, and not his wife; John McCalmont, another of defendant’s witnesses, testified that Ormsby gave him authority to turn Charley Gordon off the land in 1816 or 1817; Gordon claimed to have permission from the widow Bowles, who was not then on the land, and Gordon was turned off in 1817; the same witness testified that Ormsby was in Franklin in 1820 or 1821, and sent a line to Peoples, and it was his impression that Ormsby went to see Peoples, and that Ormsby then wanted Peoples to leave the place. From this evidence it appears, that it is a question for the jury whether Mrs. Bowles and Peoples were not claiming adversely, and whether Ormsby did not know of it; and therefore the point is answered in the negative.”</p> <p>3. That if John Peoples did contrive or manage to have the land in dispute sold for taxes in 1822, and the same year procured a survey to be made of 135 acres of it for himself upon his alleged settlement and improvement, and at the same time, changed his assessment from 400 to 130 acres, these acts of his, each and •severally, are evidence going to show that prior to 1822 he had not been holding the land by an independent and adverse title, but in subordination to some superior or supposed paramount title, and that if such were the facts, the statute of limitations did not commence to run until that year, and had not secured to him a •title, prior to the commencement of the former action of ejectment.</p> <p>Answer. — “ To the defendant’s third point we answer: the land ¡was sold for the taxes of 1817,'assessed in 1816 in the fall or winter; the facts stated in this point are for the jury; his trying • to get a good title by treasurer’s deed woulá show a hostility at .the time; whether before that, or not, would throw very little light upon it; it is not inconsistent with an adverse claim for years, nor, on the other hand, with a .claim then but begun.”</p> <p>. To this instruction the defendants excepted; and a verdict and judgment having been rendered for the plaintiff, the defendants sued out this writ, and here assigned the same for error.</p>

<p>The Act 3d April 1851, relating to the collection of taxes in Venango county, which provides that, upon a judgment being obtained upon the bond of a constable and his sureties, for the non-payment to the county treasurer of the taxes collected by him, there shall be no stay of execution, or other stay, but it shall be the duty of the treasurer to prosecute such judgment to execution and satisfaction without delay, does not dispense with the inquisition, and the ordinary proceedings under a. fieri facias levied on real estate.</p>

<p>Where a trust estate becomes vested in the guardian of a minor, which is liable for the payment of the creditors of the trust, it is his duty first to settle an account, as trustee, in the Common Pleas, and then to charge himself with the balance as guardian, and to account therefor in the Orphans’ Court. The whole estate cannot be settled, by filing an account in the latter court, in the first instance.</p> <p>It is error, to charge a guardian or trustee, with funds necessarily invested, as cash.</p>

<p>- Works of internal improvement erected by the state, for the benefit of the citizens at large, do not become a public nuisance, because they may render the neighbourhood unhealthy, by reason of the obstruction of running water, and the consequent overflowing of the adjacent lands; nor is their character changed, by a transfer into the hands of a private corporation, with a requirement that the works shall be kept up for the purposes of their creation.</p>

<p>Error to the Common Pleas of Washington county.</p> <p>This was a quo warranto at the relation of Thomas Porter and others against Nathan Cleaver, Joseph Vankirk, and O. P. Cook, Commissioners of Washington county. The petition alleged that the defendants had, without lawful authority, assessed a tax of forty cents on each $100 of valuation, on the property of the citizens and inhabitants of the said county, to meet the interest due and to become due, in the year 1859, on the bonds issued by the said county to the Hempfield Railroad Company.</p> <p>The respondents, by their answer, admitted that they had assessed the tax complained of, .but claimed that they had done so by virtue of the powers conferred upon them by law.</p> <p>The court below (Gilmore, P. J.), being of opinion that the commissioners had been guilty of an unlawful exercise and abuse of their office, in levying this tax, gave judgment of ouster against them ; whereupon, the defendants removed the cause to this court, and here assigned the same for error.</p>

<p>The execution and delivery of a deed to the grantor’s agent, with instructions to deliver it to the grantee, on payment of the purchase-money, and a subsequent delivery to the alienee of the grantee, after the death of the latter, on his paying the amount due to the grantor, do not give such a seisin to the grantee, as will enable his widow to claim her dower in the land.</p>

<p>A transferree of shares in the stock of an incorporated company, subject to the payment of future calls, is not personally liable for such unpaid instalments, in the absence of any such provision in the act of incorporation.</p>

<p>Appeal from the District Court of Allegheny county.</p> <p>This was an appeal by the legatees of William Riley, Sr., deceased, from the decree of the court below distributing the proceeds of a sheriff’s sale of the real éstate of William Riley, Jr., deceased.</p> <p>William Riley, Sr.,, by his last, will, dated the 21st July 1842, devised and bequeathed as follows*':—</p> <p>“First: I give and bequeath, unto my beloved wife, Lavinia Riley, all my household furniture, and the maintenance and living off the premises on which I now reside, during her natural life or widowhood.</p> <p>“ I do also give and bequeath to my son John, the sum of three hundred dollars, and to my daughters, Jane, Nancy, Lavinia, Margaret, and Mary, seventy dollars to each of them, to be paid out of my estate, in equal annual payments, within ten years after my decease; and to my daughters above mentioned I give, during their remaining single or unmarried (should they desire it), eight acres of land on the east side of the Harmony road, joining John Moon’s line, so as to include a spring in the meadow, and two acres of timbered land on the west side of said road, and a house to be built thereon, for their use- and accommodation, by my executors, out of my estate, whenever my daughters before mentioned, or any of them, require it; the house not to exceed sixteen by twenty-four feet.</p> <p>“After my decease, and the decease of my beloved wife, Lavinia, I give and devise to my son William, his'heirs and assigns, all that messuage and tenement on which I now reside, situated in the township, county, and state aforesaid, to hold to him, the said William, his heirs and assigns for ever. ;</p> <p>“ And lastly, as to all the rest, residue, and remainder of my personal'estate, goods, and chattels, of whatsoever kind and nature, I give and bequeath the same to my"beloved wife, Lavinia, and to my son William.”</p> <p>This will was admitted to probate on the 20th August 1847; and letters testamentary were granted to Lavinia Riley and William Riley, Jr., the executors named therein.</p> <p>William Riley, Jr., afterwards- went to California, and died there, having paid but $48 out of the personal estate on account of the legacies given by his father’s will; and letters of administration on his estate were granted to James Duff and Lavinia Jane Riley, his widow.</p> <p>On the 30th January 1858, the land devised to William Riley, Jr., was sold by the sheriff, by virtue of an execution issued on a judgment obtained against him in his lifetime, and duly revived by scire facias against his personal representatives, with notice to the widow and heirs.</p> <p>The sheriff took the judgment-creditors’ receipt for the net proceeds of sale, amounting to $ 1945.54, and made a special return to the writ; to which exceptions were filed by the legatees of William Riley, Sr., who claimed that their legacies were payable out of the proceeds of sale.</p> <p>The court below appointed an auditor to report distribution of the fund, who reported that the legacies were not liens thereon, and awarded the fund to the judgment-creditors. The court below confirmed the report of the auditor, and decreed distribution accordingly; whereupon, this appeal was taken by the legatees.</p>

This was a mandamus issued, at the relation of David Veech, against the Borough of Uniontown, and its officers, commanding them to repair a part of Main street in the said borough. To the alternative mandamus, the following return was made by the respondents:— “ To the Honourable the Judges of the Court of Common Pleas of the county of Fayette. “The answer of Daniel Smith, president, Richard Miller, James T. Redburn, F. C. Robinson, Charles II.

<p>"Where a judgment is transferred to another county, under the Act of 16th April 1840, the court of such county has no power over it, except for purposes of execution and satisfaction. It cannot inquire into its merits at all.</p> <p>The court in which the primary judgment was obtained can alone take any action operating on the judgment itself; and if that court direct satisfaction to be entered on payment of the money into court; all further process on the secondary judgment is to be arrested, except for its own costs, in a proper case.</p>

<p>An agreement between attorney and client, that the former should have §100, for his services, “ out of the v&rdict,” in an action for unliquidated damages arising from a tort, operates as an equitable assignment, to that extent, of the sum recovered, and is good against an attaching creditor of the client.</p> <p>An attaching creditor stands in the shoes of the debtor; and any equities that could be set up. against the- latter, are equally available against the former.</p> <p>A claim for unliquidated damages -iff an action sounding in tort, is not eapable'of assignment before verdict, so far as it respects the rights of third persons; but as between attorney and client, an agreement to assign the whole or part of a future verdict, is binding; and being founded on sufficient consideration, will be enforced.</p>

This was an action of assumpsit by Dr. Thomas W. Shaw and Dr. A. C. Murdoch against the County of Allegheny, to recover the sum of $30, for services rendered at the instance of the coroner, in making a post mortem examination of the body of one Mary Campbell, in March 1859.

<p>Every element in the definition of what constitutes a title by adverse possession, must exist, otherwise, the possession will not confer title, under the statute of limitations.</p> <p>If there be one element more distinctly material than another in conferring title, where all are so, it is the existence of a continuous adverse possession for twenty-one years.</p> <p>If there be a breach in the continuity of the possession, no title is gained under the statute.</p> <p>A recovery in ejectment by one having the better title, and the attorning of the defendant's tenant to the plaintiff, under the pressure of a writ of habere facias possessionem, is sufficient to break the continuity of the possession.</p> <p>It is not necessary, in such a case, that the defendant’s tenant should be actually evicted, before accepting a lease from the plaintiff: the surrender is equally involuntary, where the attornment is the alternative of actual ouster.</p> <p>It is the duty of the court, to see that there is evidence to go to the jury, on all the points necessary to make title by the statute; and it is, therefore, proper to instruct the jury, that an interruption in the plaintiff's possession for a year, would be a bar to his claim of title under the statute. The fact of possession is for the jury, but the kind and length of that possession, to be effectual, is a matter of law for the court.</p> <p>The payment of taxes by the party evicted under a recovery in ejectment, is not sufficient to preserve the continuity of his possession.</p> <p>It is sufficient, if the points presented to the court on the trial were fairly and properly answered in the general charge; it is not necessary, that a separate answer be given to each point.</p>

<p>Error to the Common Pleas of Fayette county.</p> <p>This was an ejectment by Hugh Campbell, in trust for A. H. Campbell, against James F. Canon, for a house and lot of ground in Uniontown, to enforce the payment of a balance of unpaid purchase-money.</p> <p>On the 4th January 1856, Hugh Campbell, the vendor, obtained a judgment against James F. Canon, the vendee, for $373.38, the amount of unpaid purchase-money due to him, under the articles of agreement for the sale of the land.. And on the 13th January 1855, he filed in the prothonotary's office, a deed conveying the premises to the vendee, dated the 28th July 1852, which was not to be delivered until the balance of the purchase-money was fully paid.</p> <p>On the 26th December 1855, Hugh Campbell, the plaintiff, assigned this judgment to Dr. A. H. Campbell, to be prosecuted at his own risk and costs, and without recourse to .the plaintiff. On the 4th August 1856, this judgment was revived by scire facias, for the use of A. H. Campbell, for the sum of $408.28.</p> <p>On the 3d March 1857, the premises in question were sold by the sheriff, under an execution against James F. Canon, the vendee, at the suit of the administrators of Thomas Rankin, deceased, and purchased by John Canon for $800; to whom the sheriff made and acknowledged a deed, on the 10th March 1857.</p> <p>This ejectment was brought on the 9th March 1857 and, on the 6th May 1857, the court allowed John Canon, the sheriff’s vendee, to be admitted as a co-defendant; but when the cause came on for trial, on motion of the plaintiff’s counsel, the court struck off the name of John Canon as a co-defendant.</p> <p>The proceeds of the sheriff’s sale were applied to the discharge of judgments against James P. Canon, prior in date to the plaintiff’s judgment for the unpaid purchase-money.</p> <p>The court below (Gilmore, P. J.) delivered the following charge to the jury :—</p> <p>“ The question made here is one of every day practice, and if not settled (as we supposed it was), it is high time it should be put to rest. By the laws of Pennsylvania, all the real estate of a debtor, whether it be legal or equitable, is bound by a judgment against him. The legal title to real estate may be in one, and the equitable estate in another, and judgments against vendor and vendee will be a lien only on their distinct estates. Thus, a judgment enforced against the vendor, will only dispose of the legal estate, and leave the vendee at liberty to comply with the agreement made to purchase. And so, a judgment against the vendee, when levied, will only sell the equitable interest of the vendee, and that will be •measured by the amount of the purchase-money paid. Carrying out this principle, it is ruled, that a judgment given by the vendee, on the delivery of the deed, had a preference, as a lien, over prior judgments entered against the vendee before the acquisition of the legal title: Love v. Jones, 4 Watts 465; Auwerter v. Mathiot, 9 S. $ R. 402. The same principle is also ruled in McMullen v. Wenner, 16 S. $• R. 18; Vierheller’s Appeal, 12 Harris 107. It is ruled also in the last-mentioned case, that when the estate is sold on the vendor’s judgment for the purchase-money, the whole title passes to the purchaser; and whether he be the vendor or a stranger, the purchase-money is to be applied to the vendor’s judgment, without respect to its date. The vendor is not paid the proceeds of his judgment because it is a lien, but because he was the owner of the paramount title. In this ease also, the modification which the cases of Wilson v. Stoxe, 10 Watts 436, and Day v. Lowrie, 5 Watts 417, received in Horbach v. Riley, 7 Barr 81, was fully confirmed. In this case, the property was not sold under a judgment for the purchase-money. Nor does it matter that the plaintiff had a judgment on record for the amount of the purchase-money, at the time of the levy and sale. It was merely a remedy which he might, but which he did not use, to enforce his claim against the property. And why should this mere remedy operate to transfer his paramount ownership, and that, too, when he declares upon the very face of it, that he does not mean to part with his title (which gives him a superior remedy) until the purchase-money is paid ? The title of the purchaser is fixed on the moment of the sale. It cannot be enlarged, by the vendor appearing before the auditor, and claiming to take the money on his judgment.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiff, to be released on payment by the defendant of the sum of $>406.90 within nine months, with interest and costs, the plaintiff removed the cause to this court, and here assigned for error: 1. The charge to the jury. 2. The striking off of John Canon’s name as a co-defendant.</p> <p>In this court, the death of James P. Canon, the vendee, was suggested, and John Canon was substituted, as the party next in interest.</p>

This was an action of scire facias upon a mortgage by Eliphalet Williams, the mortgagor, against Mary D. Gorten, administratrix of Orson Williams, and Lorenzo Williams, the mortgagees. The mortgage was dated the 26th September 1837, and purported to secure the payment of the sum of $3000 with interest. On the 7th November 1857, Mary I).

Errob to the Common Pleas of Westmoreland county. This was an ejectment by John ,Q. Robinson against Joseph Stokely for a lot of ground in West Newton, containing one acre, more or less. . . -.

This was an action of assumpsit by Charles Miller against Claudius Dumars, his vendor, to recover damages for the breach of a parol contract for the sale, by the defendant to the plaintiff, of a tract of about 20 acres of land with a fiouring-mill thereon; and the only question presented was, as to the measure of damages.

This was an action of debt by Strickling English against R. R. Robinson, a justice of the peace, to recover the penalty given by the Act of 14th February 1729, for mai-rying his minor son, without the publication of bans, and without his consent.

This was a judgment in debt, in favour of Calvin Springer against Jonah Walters, entered on a judgment-note for $321.49, given by the defendant to the plaintiff. Held: which showed that a considerable balance of the purchase-money was due to Moore, and unpaid; and the inquest, treating this as a lien, condemned the land, and a venditioni exponas was issued.

This was an action of assumpsit by Joseph Logan, for the use of John Watt, against Stephenson Hall and Joseph Logan, late copartners under the firm of Hall & Logan, on three non-negotiable notes, amounting to $490, made by the firm of Hall & Logan in favour of Joseph Logan, one of the firm, and assigned to John Watt, the equitable plaintiff.

This was an ejectment by James Watson and others against Ammond Green and William B. Sutor, for 1000 acres of land in Montgomery township, Indiana county, surveyed on a warrant granted to John Nicholson. The tract of land in controversy, was surveyed on the 16th August 1794, upon a warrant to John Nicholson, No. 3758, dated the 5th March 1793.

<p>Generally, a surrey is to be carried to its calls, unless there be actual lines on the ground, excluding them; in that, case, the lines on the ground will control the calls, for they constitute the survey.</p> <p>When there are no natural monuments or lines called for, by which the closing line is to be fixed and ascertained, and no line on the ground, it follows, of necessity, that the survey is to be closed by a direct line between the termini of the lines on the ground, or as fixed by the courses and distances returned to ascertain these termini.</p> <p>A call, to stand as a boundary, must be indicated to be such, with sufficient certainty to show that it was so intended; and, therefore, the designation of a river in the survey returned, which is neither called for as a boundary, nor are the lines protracted to it, will not overrule a straight line, returned as a boundary, at some distance from the river.</p>

This was an action of assumpsit by William Orgill against John T. Hogg (impleaded with R. & T. P. Ellis, who were not served with process), on a promissory note for $833.46, dated the 7th February 1853, and purporting to have been made by the firm of R. & T. P. Ellis in favour of the plaintiff. On the 1st March 1850, John T. Hogg, the defendant, formed, under the statutes of New York, a limited partnership with Robert Ellis and Thomas P. Ellis of the city of New York.

<p>Though want of jurisdiction may be taken advantage of, in any stage of a cause, yet, where the jurisdiction of the court is primd facie general, but is ousted, in the particular case, by statute, it is advisable to plead it specially.</p> <p>An action at common law will not lie on a decree of the Orphans’ Court, for the payment of a legacy out of the funds in the hands of an executor. The Orphans’ Court has- exclusive jurisdiction to settle and distribute the estate of a decedent.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of assumpsit by the Pittsburgh and Steuben-ville Railroad Company against Thomas Bavington, to recover nine unpaid instalments of $10 each, on twenty shares of the stock of the company, subscribed for by the defendant, with the statutory interest of one per cent, a month, from the time of the respective calls.</p> <p>The defendant was one of the commissioners appointed by the act of incorporation, to receive subscriptions to the stock of the company. He himself subscribed for twenty shares, of $50 each; attached to which was a condition “ that no subscription should become due and valid, until the sum of $200,000 should he bond fide subscribed in the books of the company;” and “provided the road comes within half a mile of Florence.”</p> <p>The defendant .subsequently united with the other commissioners, in certifying to the governor, that above ten per cent, on the capital stock of the company had been subscribed; that he had subscribed for twenty shares; and that the subscriptions certified were in all respects made in good faith, and agreeably to the provisions and requirements of the Acts of Assembly and the laws of the Commonwealth; and that five dollars per share had been paid in on the several subscriptions. On this certificate, letters patent were issued to the subscribers. The road was located more than three miles from Florence.</p> <p>After the cause was at issue, the plaintiffs filed an additional count, predicated on the return of the defendant, as one of the commissioners for receiving subscriptions to the stock, wherein he was stated to have returned himself as a stockholder; and alleging his liability as arising from the certificate, as to the character of the subscription, as returned to the governor, for the purpose of obtaining the letters patent. To this there was a demurrer, which was overruled.</p> <p>On the trial, the plaintiffs gave no other evidence of the original subscription except the return of the commissioners; and a paper signed by the defendant and others, as commissioners, calling a meeting for the first election of officers, after the issuing of the letters patent. They then offered evidence of the calls for the unpaid instalments, which was admitted by the court below under exception. The court also admitted the stock-book of the company, for the purpose of showing the fact of the calls, and the amount of the instalments; to which the defendant excepted. There was no proof of the authority under which the notice of the call for the third instalment was published; but this was supplied as to the fourth and subsequent calls.</p> <p>After the plaintiffs had closed their testimony, the defendant moved for a nonsuit, which was refused.</p> <p>The court below (Hampton, P. J.) charged the jury, that the defendant, by his acts as commissioner, had estopped himself from alleging that his subscription was conditional; and negatived the following points presented by the defendant: — ■ ■</p> <p>• 1. That if thé evidence of the plaintiff is all believed by the jury, the defendant is entitled to a verdict.</p> <p>. 2. That the subscriptions of the defendant were conditional; that he was not bound to pay unless the railroad was carried within half a mile of Florence.</p> <p>3. That there has been no act, on the part of defendant, if the jury believe the evidence, that amounts to a waiver of the condition.</p> <p>4. If the court decline charging, as requested in the third point, the question as to whether the defendant waived the condition, is one for the jury.</p> <p>5. That the resolutions of January 7th 1853, and April 7th 1853, are to be taken as the construction put by the parties in interest upon the subscription under all the circumstances of the case, and that the court and jury are to be governed by it, and that as there is no evidence of a branch road to Florence, the defendant is discharged from the payment.</p> <p>6. That the plaintiff having failed to prove his case, as alleged in his declaration, the defendant is entitled to a verdict.</p> <p>7. That there is no proof of the calls having been made in conformity to the Acts of Assembly; and if the court decline to charge this as a matter of law, it is a fact for the consideration of the jury.</p> <p>8. That no penalty can be recovered for a longer period than six months from the time of the respective calls.</p> <p>9. That the penalty must cease upon the institution of the action, and that no more than ordinary interest can be recovered from the time of the commencement of the suit.</p> <p>10. That by the fourteenth section of the general Act of incorporation, the plaintiff is precluded from recovering penalties at all, in this case; the action not having been brought within two years of the time the penalty was incurred.</p> <p>To this instruction the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs, for $1436.74, he removed the cause to this court, and here assigned for error : 1. The overruling of the demurrer to the amended count. 2. The admission of the evidence contained in his bills of exception. 3. The refusal to direct a nonsuit. 4. The refusal to charge as requested in the points presented on the trial. 5. The charge that defendant was estopped by his acts as commissioner from alleging that his subscription was conditional.</p>

<p>The testimony of experts is receivable, in corroboration of positive evidence, to prove that, in their opinion, the whole'of an instrument was written by the same hand, with the samé pen and ink, and at the same time.</p> <p>A party who seeks to relieve himself from the obligation of his bond, on the ground of actual fraud or misrepresentation, must establish that there was a false representation of a matter of substance, important to his interests, and which actually misled him to his hurt.</p> <p>A false affirmation of a matter resting in opinion, or even of a fact equally open to the knowledge or inquiry of both parties, is not available for such purpose.</p> <p>A representation to the father of the debtors, that the party making it had authority to settle the claims of the creditors, and that unless the father gave his bond for the sons’ debts, the creditors would indict them for obtaining goods under false pretences, and send them to the penitentiary, will not avail as a defence to the bond, even if it were untrue.</p> <p>Such a threat of resorting to a legal prosecution against the sons, will not constitute duress per minas; or prove that the bond was obtained from the father by undue influence, although it was shown that he was nearly sixty-six years of age, and had a mind easily influenced and excited.</p> <p>It is no evidence of failure of consideration, that the bond was given for the debts of third parties, for which the obligor was not responsible; that no time was given to the original debtors; and that suits had been brought against them for a portion of the debts intended to be secured by the bond.</p> <p>In an action on a bond given to secure the payment of the. notes of third parties, evidence is not admissible, that it was agreed such notes should be surrendered, which had not been done, but on the contrary they had been put in suit. This might be'a defence to the notes, but was none to the bond.</p> <p>Nor is parol evidence admissible, that at the time of the execution of a bond and warrant of attorney to confess judgment thereon, it was agreed, that judgment should not be entered up for a certain period, unless upon a specified contingency. This would be in direct conflict with the terms of the warrant of attorney.</p> <p>Effect may be given to such an arrangement, in favour of a junior execution-creditor, but not in favour of the debtor himself; for between the judgment-creditors there is no contract in writing, to be varied by parol.</p> <p>Such evidence is not admissible, to show that the warrant of attorney was used for a different purpose from that for which it was intended; for until the abuse or perversion of the instrument be shown, no fraud appears sufficient to make way for the admission of parol evidence to affect it.</p>

This was an appeal by Alfred P. Anshutz, from the decree of the court below for the specific performance, by the appellant, of a contract entered into by Eye Anshutz, his mother, for the purchase of a lot of ground from Christian P. Anshutz, now deceased, upon the petition of Joseph Woodwell, his administrator.

This was an action of assumpsit, by John Myers against Hugh W. Wier, committee of the person and estate of James Wier, a lunatic, to recover the sum of $68.73, for professional services rendered by the plaintiff, as an attorney, in conducting the proceedings in lunacy.

Appeal in Equity from the Common Pleas of Indiana county. This was a bill in equity, exhibited by Martin Warfel against Robert Cochran, Samuel M. Brown, and George W. Brecht, road commissioners of'Mill Creek township, and Daniel Young, for an injunction to restrain the defendants from damming up and obstructing a brook or creek, which ran across a public highway, called East Lane, adjoining the farm of the complainant. * The bill averred that the brook had run in this…

<p>Error to the Common Pleas of- Venango county.</p> <p>This was an ejectment by Caroline De France, and others, the children and heirs at law of Charles De France, deceased, against Allison De France and Jacob Smith, for a tract of 120 acres of land, in French Creek township.</p> <p>Both parties claimed title under Charles De France; the plaintiffs, by descentras his children and heirs at law; the defendants, under a deed from Charles De France to Allison De France, his brother, dated the 18th February 1846.</p> <p>The plaintiffs gave parol evidence, tending to prove that the deed of the 18th February 1846, although absolute on its face, was only intended as a mortgage, to secure the repayment of the consideration-money expressed therein. This evidence consisted chiefly of conversations between Charles and Allison De France, and between Allison and third parties, to the effect that he intended to reconvey the land to his brother, on being repaid the amount of the purchase-money, with interest. It was also shown that the consideration was but $200, whilst the land was then worth from $600 to $800 ; no patent, however, had then been taken out for the land, nor had the full amount of the purchase-money been paid to the Commonwealth. Charles De France continued in the possession of the land, under a lease from Allison, until the time of his death, on the 8th February 1851.</p> <p>The court below (McCalmont, P. J.) delivered the following charge to the jury, which, at the request of the plaintiffs’ counsel, was reduced to writing, and filed of record:—</p> <p>“ The plaintiffs claim that the deed of 18th February 1846, recorded on the 19th, from Charles De France and wife, the father of the plaintiff, to Allison De France, his brother, the defendant, although absolute on its face, was intended as a mortgage; and that this may be proven by parol; and that it has been established by the evidence.</p> <p>“ In considering the subject of parol mortgages, I will briefly refer to parol trusts, to which they seem to be allied, at least so far as the quality of the proof is concerned. That there may be an express trust created in land by parol, notwithstanding the statute of frauds and perjuries, seems to be decided by the cases, and established, although liable to be shaken. It was announced authoritatively in the case of Kissler v. Kissler, 2 Watts 323 ; and expressly reiterated in the cases of Swartz v. Swartz, 4 Barr 353, in which the authorities were cited, and Murphy v. Hubert, 7 Barr 420. These trusts, I understand, are such as are en-grafted upon the deed by the grantor expressly, at the time of the execution and delivery. As, if one grants land to another by deed, but expresses at the time, that the grantee shall hold the same for the use of other parties. Of late, however, the doctrine of these cases has been doubted so far as recognising a parol trust for the grantor ; and in Porter v. Mayfield, 9 Harris 263, it may be considered as expressly overruled. In Balbeck v. Donaldson, it admitted of a qucere wrhether Murphy v. Hubert, 7 Barr 420, was law. But the case of Murphy v. Hubert was a trust not entirely for the grantor.</p> <p>“ How is it as to mortgages ? It seems to be the law of Pennsylvania, repeatedly decided (Woods v. Wallace, 10 Hams 171), that the defeasance to a deed, absolute on its face, may be by parol. And yet it is somewhat difficult to see the difference in effect between such a case, and that of a trust in the grantee for the grantor; at least, the danger of admitting parol testimony would seem to be as great in the one case as the other. It seems to be as easy to establish by parol a mortgage, as a trust. There are very few, if any, cases in the books, where the proof of the defeasance rested wholly in parol. The reason is, doubtless, that no one now-a-days gives an absolute deed of himself and wife, as security for the repayment of money. True, it may be done. But there are few cases, except where the deed would be procured fraudulently, or the defeasance omitted by mistake. In the latter case, it would be considered the same as if written, and in the former, it would be no deed at all.</p> <p>“ But from the cases, it is certain, that there may be a valid parol defeasance to a deed absolute on its face; or that the deed may be proven to have been intended and delivered as a mortgage or security merely for the loan of money or future advances. We so decide in this case, and instruct you that such is the law.</p> <p>“ But the deed being absolute, the plaintiffs ask for the equitable interference of this court: Murphy v. Hubert, 4 Harris 50. If there had heen fraud in procuring it, it would have been cognisable at law, as well as in equity, and perhaps exclusively a question of fact for the jury. As the plaintiffs claim in equity, we think it becomes our duty to pass, in some measure, on the quality of the evidence, as supporting the allegations.</p> <p>“ In establishing parol contracts for lands it has been held, that’ the evidence must be express, direct, and unambiguous; and that in certain cases the value of it, or whether deficient in quality, must be passed upon by the court: Moore v. Small, 7 Harris 461. The same doctrine is held in parol contracts between persons standing in the position of parent and child: Bash v. Bash, 9 Barr 260. And generally, upon the proof of contracts, by parol, relating to lands, or between parent and child, or in subversion of the letter of a statute, the courts, of late years, have been narrowing and accurately defining the boundaries. Upon a given state of evidence, although bearing upon the question and some evidence of the fact alleged, it has been held to be the duty of the court, as a chancellor, to weigh it, and if insufficient, under the rules of equity, to prove the contract, so to decide, and to take it from the jury. In this, the court is not encroaching upon the province of the jury; for it never was the province of the jury to decide cases in equity; nor questions of fact arising thereon, unless merely to inform the conscience of the chancellor.</p> <p>“ In the ease before us, we think the evidence of the mortgage should be direct and positive and unambiguous. It should relate to a contract made at the time the deed was executed and delivered. By direct and positive I do not mean the evidence of a witness who heard the bargain (Bash v. Bash, 9 Barr 260), but, although proven by declarations or admissions, it must not be an inference from the admission, nor must the declaration be equivocal.</p> <p>“ The declarations of parties are so liable to be misunderstood and misinterpreted, or interpreted according to equities which we suppose ought to exist, that if they are allowed, they should afford direct and positive evidence of the fact alleged. I see no direct and positive evidence in the case, unless it be the evidence of James McGinnes. This witness was not examined on the other trial. He said, that he was at Charles De France’s at one time, when Allison was there; said to Charles — they tell me you have sold your farm. He said — no, Allison had taken it into his care, until he would repay him the amount of money that was against it. He observed, that he had only .given it into Allison’s hands to keep those men from selling it, and it would be better than to have the land sold from him. This might, if believed, be some evidence of the contract for the jury. But is the plaintiffs’ evidence free from ambiguity ?</p> <p>“Was the deed from Charles to Allison absolute, and the trust in parol secret, for the purpose of covering the land from the creditors of Charles, who had not obtained judgments, and thus securing it as a home for Charles and his children ? If so, it was a fraud upon creditors. It would have been bad as to them, but it is good as to Charles, and neither he nor his children could set up such a trust against the defendant: Murphy v. Hubert, 4 Harris 50. The plaintiffs’ evidence leaves it doubtful whether such was not the transaction.</p> <p>“ Or was the deed absolute, in consideration of Allison paying the judgments and debts then contracted, and for the purpose of providing a home for his brother during his life ? If so, it might have been fair and honest as to future creditors, and there could be no action of any kind, if the contract was complied with by Allison De France. The evidence of the plaintiff leaves it doubtful if such were not the facts. Was there an absolute deed, and no agreement for a loan, and Allison the grantee declared that he would hold it for Charles, on being paid the amount expended, it would be a trust by parol, which could not avail the plaintiffs under Porter v. Mayfield, 9 Harris 263. The evidence leaves it doubtful if this were not the case. If the deed was once a mortgage, it would always be a mortgage. But we are of opinion, that the plaintiffs’ evidence is ambiguous, and not clear; and that it is insufficient, on the whole, to prove that there was a defeasance, or to turn the deed into a mortgage.</p> <p>“Nor are we at all satisfied from the evidence, of the equity of the plaintiffs’ claim. It is evident to our mind, that Allison De France would have allowed his brother and wife to have lived on the land twenty years instead of five or six, had his brother so long lived; that Allison received no rent from the lease, but on the contrary, made use of it for the purpose of protecting Charles’s property from his creditors for him. That Charles could not pay the judgments, nor could he borrow money from any one ; and that he understood perfectly the transaction — that his brother had the title, and he had, at most, only the promise or confidence that his brother would take care of him, and sell him the property again, if, in a reasonable time, he could raise the money.</p> <p>“ It may be that the jury would come to a different conclusion. We ourselves believe that the defendant should, if he has not already done it, pay the full value of the land as it was at the time he purchased. We are not satisfied that he would not do so. But to require him to lose his land and improvements on such evidence, would, we think, operate to unhinge title, and to weaken written securities.</p> <p>“ Whatever may be the moral obligation resting upon the defendants, if any, we are satisfied that the evidence is too ambiguous to raise a legal obligation in the present form of action, and that the plaintiffs cannot recover.”</p> <p>The jury having, under this instruction, found a verdict for the defendants, the plaintiffs sued out this writ, and here assigned the same for error.</p>

<p>A testator devised as follows: — “ I direst that my wife, C. S., shall receive so much of my estate as she is justly entitled to, by the laws of this Commonwealth, and no more:” Meld, that the widow, claiming under the will, in addition to her thirds of the estate, was entitled to the $300 allowed to widows by the Act of 14th April 1851.</p> <p>In such case, it is not necessary that the widow should claim the $300 in the mode prescribed by the Acts of 1849 and 1851. The intestate laws fix the measure of her claim, hut not the form of it.</p> <p>Executors, as such, have no right to appeal from a decree distributing the funds in their hands.</p>

This was a feigned issue from the Orphans’ Court, wherein Alexander Hoig was plaintiff, and Simon S. Minium, defendant, to try the right of the parties to the interest or purpart of Henry Minium in the real estate of his father, John Minium, deceased. The issue was entered in the Common Pleas on the 30th August 1847; and on the 23d August 1848, having been reached for trial, and the plaintiff not appearing, a nonsuit was entered against him.

<p>Certiorari to the Mayor of Pittsburgh.</p> <p>This was an information against James ÍTesbit, for having performed worldly employment on the Lord’s day, commonly called Sunday, contrary to the provisions of the Acts of 22d April 1794, and 26th April 1855.</p> <p>The information was as follows: — • Commonwealth of Pennsylvania ] Personally appeared be-v. ' >fore me; Henry A. Weaver,</p> <p>James Nesbit. j Mayor in and for the city of Pittsburgh, James Reed, who being duly sworn, doth depose and say, that on yesterday, being the 2d day of October, a. D. 1859, being the Lord’s day, commonly called Sunday, he, the said James Nesbit, at the city of Pittsburgh, county of Allegheny, performed certain worldly employment or business on said day, the same not being a work of necessity or charity, by driving certain horses to which was attached a carriage in which certain persons, not travellers, but residents of the aforesaid county, were carried over the streets of the city of Pittsburgh, and from the said city, over and along certain roads within the aforesaid county, contrary to the Act of Assembly of 1794, and its supplement approved the 26th day of April 1855.</p> <p>Complainant, therefore, desires that a warrant may issue, and that the aforesaid defendant, James Nesbit, may be arrested and held to answer this charge of performing worldly employment on the Lord’s day. And further deponent saith not.</p> <p>James Reed.</p> <p>Sworn and subscribed, this 3d of October 1859.</p> <p>H. A. Weaver, Mayor, [l. s.]</p> <p>The following is a copy of the record before the Mayor:—</p> <p>The Commonwealth | Charged on oath of James Reed with v. > having done and performed worldly em-</p> <p>James Nesbit. j ployment on the Lord’s day, commonly called Sunday. Warrant issued October 3d 1859. Same day, defendant brought in, and entered into a recognisance for his appearance for a hearing before.me, on October 10th 1859. John T. Logan tent, in $100, sub. con. that the defendant, James Nesbit, appear for hearing on above charge. And now, October 10th 1859, defendant appears, and after examination of witnesses and hearing of evidence, case continued for decision to October 13th 1859. Be it remembered, that on the 13th day of October 1859, James Nesbit, of the county of Allegheny, and commonwealth aforesaid, on consideration of the premises, is convicted before me, Henry A. Weaver, Mayor of said city, at the city aforesaid, of having, at the city aforesaid, done and performed wo'rldly employment and business, by driving certain horses attached to a carriage, in which certain persons, not travellers, were carried over the streets of said city, and along certain roads within the aforesaid county; the same work, employment, or business not being a work of necessity or charity, on the 2d day of October, in the year aforesaid, being the Lord’s day, commonly called Sunday, contrary to the Act of General Assembly of 1794 in such case made and provided, and its supplement, approved the 26th day of April 1855. And I, the said Mayoi*, do adjudge him to forfeit and pay for the same offence, the sum of twenty-five dollars. Given under my hand and seal, at the county aforesaid, on the day and year last aforesaid.</p> <p>II. A. Weaver, Mayor. [ l. s. ]</p> <p>The defendant, having been convicted of the alleged offence, applied for and obtained a special allowance of a certiorari to remove the proceedings to this court; and the record having been returned as above set forth, he suggested a diminution thereof, in this, that the' mayor had not sent up the evidence on which the conviction was founded; whereupon the .court awarded a writ of certiorari to bring up the same, to which the mayor made the following return:—</p> <p>“ To the Honorable the Judges of the Supreme Court of Pennsylvania : — •</p> <p>“ The record and all proceedings, so full and entire as the same remain before me in the case .of The Commonwealth v. James Nesbit, I have already certified under my hand and seal, as before commanded, to your Honourable Court, without any diminution thereof whatever. The testimony taken or heard before me, on the hearing of said case, was not made matter of record, being advised that the same formed no part thereof, under the Act of Assembly and the decisions of your Honours thereon. As to the alleged testimony set out in the foregoing writ, I am unable to certify that the same is correct. Witness my hand and seal, this 2d day of November, A. D. 1859.</p> <p>H. A. Weaver, Mayor.” [l. s. ]</p> <p>The defendant thereupon applied for and obtained leave to take depositions, in order to ascertain what testimony was given before the mayor in this case.</p> <p>Prom the depositions taken before the commissioner, it appeared, that the defendant was in the employment of John T. Logan, who resided in the city of Allegheny, as a gardener. That on Sunday, the 2d October 1859, he drove the carriage of his employer from his residence in Allegheny City, to the Second Pr'esbyterian Church in the city of Pittsburgh, and back to the residence of his employer; which was the offence alleged against him before the mayor.</p> <p>The defendant, in this court, assigned for error:—</p> <p>1. The mayor erred in not setting out on the record of conviction the testimony taken before him on the trial of this case. 2. The mayor erred in'not describing and setting out on the record the act of defendant complained of, explicitly and particularly, so as to enable the court to decide whether the said act was in violation of the Act of 22d April 1794, or not. 3. The evidence taken before the commissioner clearly shows that the defendant below was not guilty of any violation of the Act of 22d April 1794. 4. The act of defendant set out on the record of conviction in this case, is not contrary .to law. 5. The mayor erred in not setting out at large, on his record, the provisions of the Act of 26th April 1855, which is a private and local law, confined in its operation to the county of Allegheny.</p>

<p>The Act of 11th April 1848 renders the estate of a deceased partner unconditionally liable for the partnership debts; and the creditor may demand payment on the distribution of his estate in the Orphans’ Court, notwithstanding the recovery of a judgment at law against the surviving partner.</p> <p>The judgment recovered against the surviving partner, it seems, is not evidence ag-ainst the representatives of the deceased partner, for they were no parties to it. .</p>

On the 8th May 1858, the petition of divers inhabitants of Chartiers township was presented, praying for the appointment of viewers to lay ,out a road from the Middletown road, at or near McClelland’s house, to the Steubenville turnpike road, at or near McLarren’s flour-mill, in the sai'd township.

This was an ejectment by Augustus Drum against Elizabeth Kelly, for the one-half of lot No. 17, in the borough of Blairsville. The facts of the case are fully stated in the following charge to the jury, delivered on the trial of the cause, in the court below, by Buffington, P. J.:— “ This is an .action of ejectment for the one-half of lot No. 17, in the borough of Blairsville.

<p>Error to the Common Pleas of Fayette county.</p> <p>This was an action of assumpsit by John Hertzog against George W. Hertzog, administrator of George Hertzog, deceased, for services rendered and money paid by the plaintiff to the defendant’s intestate, on account of the purchase of a tract of land, known as the Drown Farm. The case was formerly before this court, and is reported in 5 Gasey 465.</p> <p>On the trial, the plaintiff gave evidence that his father, George Plertzog, the defendant’s intestate, had purchased the Drown Farm for him, he undertaking to pay the purchase-money; and that he had paid to his father a portion of the purchase-money, partly in cash, and partly in services. And he claimed to recover the value of the land with interest, less the amount of the balance of unpaid purchase-money.</p> <p>The court below (Gilmore, P. J.) charged the jury as follows:— “ The principal point which the plaintiff makes is this, that his father George Hertzog, at his instance, became the purchaser of the Dr. Drown tract of land for him, he undertaking and agreeing to pay the purchase-money; that he did provide a considerable portion of the means to pay for the land, but, inasmuch as he failed to pay the whole, his father, as trustee, held the purchase in his own name, and died without executing the trust; that the plaintiff then decided not to require from the executor the execution of the trust, but allowed it to be treated as a part of the estate of his father, and to be portioned among his heirs, and under this state of facts, he is entitled to recover the value of the tract at the time of the death of his father, deducting therefrom what has been paid by his father. We are of opinion, that a recovery cannot be had upon this basis. The plaintiff cannot turn round on his heel, and say to the trustee, I find I am unable to pay all I promised you to pay, but keep the land, pay me its full value, and I will allow you what you have paid. The most he can be entitled to, where there has been a failure of this kind, or where the trust had been mutually abrogated, would be, if the trustee keeps the property, to require him to pay what had been contributed by the cestui que trust.</p> <p>“ We, therefore, charge you that, in any aspect of the case, the measure of the recovery here will not he the value of the land, less the amount paid towards the perfection of the purchase by old George Hertzog.</p> <p>“ Under this ruling, therefore, it is not important that the plaintiff should be able to satisfy you from the evidence of Bowman and Stumm, and others, that this was the arrangement in reference to the purchase of the land. We are inclined to believe from the evidence, principally the declarations of old Mr. Hertzog, as proved by plaintiff, that whatever the arrangement was, it was to be perfected by his last will and testament.</p> <p>“ If the jury should' be satisfied from this, that the old man declaimed his intention to bequeath this land to John, and held this as an inducement for him to contribute to the acquisition of the estate, and he did so, and he afterwards disappointed the hopes of the expectant devisee, by dying without any testamentary disposition of his property, then we say to you, that the plaintiff is entitled to recover from the estate of the defendant, any amount which he can show was contributed towards the purchase, with interest from the death of the defendant.”</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been rendered in his favour for $1208, he removed the cause to this court, and here assigned the same for error.</p>

<p>Error to the Quarter Sessions of Westmoreland county.</p> <p>This was an appeal from the taxation of costs, on an indictment for larceny against Isaac Horner and Samuel Horner, by Jacob Harrold, the prosecutor.</p> <p>At November Sessions 1858, two bills of indictment were found against the defendant, at the instance of the same prosecutor, one of them, for conspiracy to cheat, &c., and the other, for larceny. Isaac Horner, one of the defendants, was not arrested.</p> <p>At the February Sessions 1859, Samuel Horner was tried on the indictment for conspiracy, and convicted; and at the May Sessions following, the verdict was set aside, and a new trial granted. The indictment for larceny was continued over from term to term.</p> <p>Immediately after the granting of the new trial, a settlement of the charge of conspiracy was effected between the prosecutor and the defendant, on payment by the latter of the sum of $800; whereupon, the further prosecution of the indictment for larceny was abandoned, and a verdict of acquittal was rendered.</p> <p>The prosecutor thereupon filed a hill of costs for the attendance of witnesses, &c., on the hill for larceny, amounting to $952.16; which, on taxation by the clerk of the court, was reduced to $476.08. From this taxation, an appeal was taken by the county commissioners.</p> <p>The following testimony was taken 5n the taxation of costs, and at the instance of the prosecutor, attached to, and sent up with, the record; and was made a part of his paper-book submitted to this court:—</p> <p>Jacob Sarrold, sworn. — “ I was the prosecutor in this case. The case was settled, day before yesterday, on Wednesday. The terms of the settlement were, that Samuel Horner was to pay $800; don’t know to whom. Mr. Cook was the attorney on behalf of the Commonwealth, and he told me, defendant was to pay $800. Mr. Cook told me the conditions of the compromise were, that the defendant was to pay $800; he did not tell me what disposition was to be made of it; he told me on Wednesday, that the witnesses would not be required on Wednesday, after the case was brought up in court. There were but fourteen witnesses in attendance at May Term 1859, on the indictment for felony. I filed no bill of costs in the case of the conspiracy; I can give no reason why the bill of. costs was not filed in the conspiracy case. The witnesses named in the bill for November 1858, and February 1859, were subpoenaed in both cases; I had subpoenas for each case. I was not present when the compromise was made.”</p> <p>Cross-examined. — “The witnesses from Philadelphia, at February Term 1859, attended on the larceny case; only one subpoena served on Philadelphia witnesses, at November Term 1858; when I speak of the witnesses being subpoenaed in both cases, I refer to the witnesses I subpoenaed in Allegheny, Fayette, and Westmoreland counties.”</p> <p>Re-examined in chief. — “ The witnesses from Philadelphia were examined in the conspiracy case, at November 1858 and 1859. I was directed not to file the bill in the conspiracy case, because the witnesses would not come back if a new trial was granted. The reason why I did not file the bill in the conspiracy case was, because it was settled, and we could not recover it off them, and it was no use of filing a bill; the reason was, the conspiracy case was settled, and the costs could not be paid. I regarded it my duty to make out the bill. James B. Kelly, Bennett Lane, David Tintsman, William Snyder, Philip Keller, the three Kepples, Mr. Reed and I understood him to speak for all of them. I was told that if I filed the bill in the conspiracy, it could not be collected from the county, and for that reason I did not do it.”</p> <p>Cross-examined. — “ When the bill of costs was made out, there was no conversation about the form of the verdicts. I was told the witnesses could not draw double pay; that was one of the principal reasons why I did not file the bill of costs. The larceny case was the longest on hand, and the witnesses attended all the time. Mr. Cook told me he worked hard to put all the costs on Horner he could; Mr. Cook told me that Horner refused to pay the costs or his attorneys for him; Mr. Cook told me he tried hard to settle it, as he could not get the witnesses, and it would accumulate costs in the county; we were not prepared for trial, and would have to ask for a continuance. I knew that Samuel Horner had put away all his property; he had made auctions before February court, and sold us his goods, and was informed he had parted with everything. Mr. Cook advised me to compromise it as soon as possible, to save costs. Neither at the commencement of the prosecutions, nor during their progress, was I informed that the costs would come off the county; as far as I understood, it was carried on in good faith; the bill was filed in good faith.”'</p> <p>Re-examined. — “ I took out an attachment; I did not execute it; I was expecting the witness Tuesday night; I did not go, because they were negotiating the settlement, and believing they could not be brought on an attachment. The attachment was for Reynolds; he told me he would come if his family was in such a situation as he could come. I told him the case could not be tried without him. I knew from my own knowledge that the county was liable for costs in felony. I always told the witnesses that they would get their costs, that somebody was bound to pay them; I was informed by counsel that the county would be liable to costs; I always had an idea the county would pay the costs in the felony case; I was informed, during the negotiation of compromise, that the county would have to pay the costs of the witnesses. I would have yielded my assent to the settlement without knowing that the county was to pay the costs; knowing that Horner had parted with all the goods, and had no real estate, that I would not recover the costs of him in any event, if convicted, and the county would have to pay the costs. The notes were taken in the name of Anspach & Co., and paid over to me.”</p> <p>W. A. Qooh, sworn. — “ So far as I know, this bill of. costs, as taxed, is correct in all its particulars. I am certain that the Philadelphia witnesses attended each term in the larceny case; they attended the first term before the grand jury; we considered them, so far as we could determine, material to the case. There was no arrangement or conversation had in the commencement or progress of the case, as to the payment of the costs. The compromise referred to in Mr. Harrold’s deposition was made chiefly with me; the proposition for it came from the friends, and also from one of the attorneys of Horner & Waltz; on Wednesday, they agreed to give $800, that sum to he applied to the losses and expenses of the eastern merchants, brought about by the conduct of the Horners, and any part that they might see fit, if any, after making their estimate to court; on these terms a settlement was closed. The larceny case was not prepared for trial at the May Term — that is, the Commonwealth was not ready for trial. The $800 was paid in part, and the balance secured by notes; the notes were taken in the name of Anspach, Reid & Co., and passed over to me. The compromise to which I refer was of the conspiracy case, and not of the lhreeny case; the proposition of settlement made to me by one of the attorneys of Horner, referred to this case, he observing at the'time that of course the larceny case must take its course, that we could not settle it; in the same conversation, he said, that he had his doubt, that the verdict of the last court would be set aside,' and that Horner was worth nothing, and that the best thing was to settle. He offered $400, which he said he supposed would cover the expenses of the Philadelphia merchants; I informed him that it would not, and added that I thought all or a part of the costs should be paid by Horner. We failed to settle the case. On the next day, at the request of a mutual friend, I submitted a proposition; it was this: that Horner pay the costs and witness fees, and the outlay or expenses of the Philadelphia merchants, or else give us the goods taken from Isaac Horner’s store and $1000, and we would pay a part of the costs; this they rejected; finally, -the case was settled on these terms: Horner & Waltz to pay $800 to Anspach, Reid & Co., and give the assignee of Kepple the goods identified as his; the $800 to be applied to the attorney’s fees of that and other eastern houses, and if any over, to costs, according to the terms of the proposition which I submitted. The docket costs I have arranged with the clerk of the courts. The question was asked, at the time of the settlement, ‘ What about the larceny case ?’ I answered, that the prosecution can’t settle — we are not prepared for trial, and it is doubtful if we ever can be; my own inclinations, in view of the uncertainty and difficulty of being prepared at any time for trial, and also in view of the costs on the county, which must be greatly increased by circumstances, is to allow it to be disposed of at once. The other counsel, the prosecutor, all concurred in these views of the larceny case; General Foster, aside from his relation to Horner as counsel, approved of them. So-far as I can remember, I have given a condensed statement or history of the settlement of the conspiracy case, and a narrative of what took place as respects the larceny case.”</p> <p>The Court of Quarter Sessions, on appeal, decided that this bill of costs should not be allowed, as an entire claim, against the county; but that each witness and claimant should be left to any remedy he might have by law. The prosecutor, thereupon, sued out this writ, and here assigned the same for error.</p>

<p>A testator devised and bequeathed all his real and personal estate to his widow, with full power to dispose of the same, among my lawful heirs or grandchildren, as she may think proper, at her decease, or before, if she may wish to distribute the whole, or part of the sameHeld, that if a trust were thereby created, it was coupled with a power of appointment, by the exercise of which, by the_widow, in her lifetime, she was enabled to convey the entire interest in a portion of the testator’s real estate, to one of the heirs, discharged from any trust in the hands of her appointee.</p> <p>Where parties have executed a conveyance of real estate, without fraud or mistake, the conditions on which it was made, cannot be affected by parol evidence of loose declarations of the grantor, to third parties, who have no interest in the transaction.</p> <p>In an action of assumpsit, in which the defendant’s promise rests on parol evidence, it is error, even if the consideration for it be adequate, to take from the jury the fact of the assumption; and to charge that, if the evidence be believed, the plaintiff is entitled to recover.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an action of trover by O. T. Wood and Emma A. his wife, for the use of the said Emma A. Wood, against John Mish, for the conversion of five trunks of clothing belonging to Mrs. Wood.</p> <p>On the 13th August 1857, O. T. Wood took boarding for himself and wife at the Perry Hotel, in the’city of Pittsburgh, kept by John Mish, the defendant, at the rate of nine dollars per week. They continued there until about the 10th March 1858, when Mr. Wood, being in arrear $183 for boarding, was notified by Mish that he could remain no longer.</p> <p>Mrs. Wood, thereupon, packed up her trunks, and went out with her husband in search of another boarding-house. On her return, she was excluded from the hotel; and the defendant kept possession of her entire luggage, which he subsequently caused to be sold by auction.</p> <p>On the trial, after Mrs. Wood had been examined, without objection, as to the contents of the trunks, and the value of the articles contained therein; the plaintiff called Franklin H. Eaton, who had listened to the description of the articles given by Mrs. Wood, but had never seen them, and offered to prove by him, the value of such goods as had been described. The court admitted this evidence, notwithstanding an objection by the defendant, and sealed a bill of exceptions.</p> <p>There was a verdict and judgment for the plaintiff for $700, whereupon the defendant sued out this writ, and here assigned for error, the admission of Eaton’s testimony.</p>

<p>Error to the Common Pleas of Washington county.</p> <p>This was an action of assumpsit by the Pittsburgh and Steuben-ville Railroad Company against Andrew Biggar, to recover nine unpaid instalments of $10 each, on ten shares of the stock of the company, subscribed for by the defendant, with interest thereon.</p> <p>The following facts' were stated and agreed upon by the parties, in the nature of a special verdict:</p> <p>“ The Pittsburgh and Steubenville Railroad Company was incorporated by an Act of Assembly, approved March 24th 1849, and letters patent were issued by the governor, dated July 22d 1851. Before the issuing of the letters patent, the defendant, Andrew Biggar, resident in Washington county, subscribed ten shares to the capital stock of the company, in a book provided for that purpose by the commissioners named in the act of incorporation, which subscription is in the words and figures following : — •</p> <p>“ ‘We, the undersigned, agree to pay to the Treasurer of the Pittsburgh and Steubenville Railroad Company, the sums set opposite our respective names, to the stock of said company; provided, that no subscription ■ shall be considered as due and valid, until the sum of $200,000 shall have been bond fide subscribed on the books of the company; provided, the road goes within half a mile of Florence.</p> <p>Andrew Biggar, 10 shares .... $500.’</p> <p>“ The name of the said defendant, as a subscriber of ten shares, is contained in the report of the commissioners filed in the State Department, and also in the letters patent. More than $200,000 have been bond fide subscribed on the books of the said company to the stock thereof. The road of the said company was definitely located on the Harman’s creek route, which is more than two miles from Florence, on the 24th day of May 1852. More than ten per centum of the capital stock, exclusive of the conditional subscriptions, was subscribed before the commissioners, and was by them certified to the governor. The defendant, at the time of his said subscription, paid to the commissioners $5 on each share of the stock so by him subscribed. On the 7th day of April 1858, the following resolution was adopted by the board, viz.: 1 That a committee of three be appointed to make a. report as to what is the conditional stock, if any, subscribed to our road in the neighborhood of Florence, that may be made absolute and available by constructing a branch from the main road to the town of Florence, and which could not otherwise be made available to the company, and make report to the board.’ A committee was accordingly appointed, but no report was ever made by them. The instalments of stock were called in by the company, and made payable as follows: second instalment payable August 12th 1852; third instalment payable 24th September 1852; fourth instalment payable 1st December 1852; fifth instalment payable 1st January 1853; sixth instalment payable February 1st 1853; seventh instalment payable 1st March 1853; eighth instalment payable 1st April 1853; ninth instalment payable 1st May 1853 ; and tenth instalment payable 1st June 1853 ; —each of the said instalments being $5 upon each share of the stock subscribed. The calls of all the said instalments were duly published in Allegheny county; the call for the third instalment was duly published in Washington county, in the Washington Reporter, 15th September 1852; and the call for the fourth and all subsequent instalments was duly published in the same paper, 22d November 1852, and 1st December 1852. The writ of summons in this case was issued on the 26th day of February 1858. After the company was organized, and prior to the 24th day of May 1852, three lines were surveyed by the said company, one of which was by the village of Florence.</p> <p>“ If the court should be of opinion, upon these facts, that the plaintiff is entitled to recover, then judgment to be entered against the defendant and in favour of the plaintiff, for the sum of $450, with interest at such rate, and from such dates, as the court may direct; otherwise, judgment to be entered for the defendant. Both parties reserve the right to sue out a writ of error.”</p> <p>The court below gave judgment for the defendant on the ease stated; whereupon, the plaintiffs removed the cause to this court, and here assigned the same for error.</p>

<p>Prom the lapse of twenty-one years after the return of a survey into the land office, there arises a conclusive presumption of law, that it was regularly made upon the ground, as returned.</p> <p>This is a presumption juris et de jure; and is not to be rebutted by mere negative evidence, that no marks are found upon the ground, where marks might have been expected.</p> <p>The fact that the name of an older survey is written on the draft returned with a younger one, does not carry the lines of the younger survey to those of the older one, if the latter be not called for, as an adjoiner, in the return.</p> <p>The patent being founded on the survey and warrant of acceptance, only conveys title to the land actually embraced in the survey. If the patent erroneously'call for an older survey as an adjoiner, the survey and not the patent will govern, as to the land embraced in the title.</p> <p>Where there was a partition at the suit of the grantee of one of the heirs of a decedent, between himself and the remaining heirs, and in his petition a particular piece of land was excluded from the premises described, and of which partition was claimed; and the other heirs, subsequently, made partition of the land allotted to them in the first partition, and also of the land excluded from it (to which they had another title), and the shares of some of them were allotted in the piece of land excluded from the first partition, and others of them improved and aliened their purparts; these proceedings are evidence against the party at whose suit the first partition was had, in an ejectment for a share of the land excluded from it; for, if the other heirs, on the faith of his admission that the land was so excluded from the title under which the first partition was had, placed themselves in a position from which they could not retire without loss, he ought not to be permitted to show that his admission was a mistake. It would amount to an estoppel in pais.</p> <p>The subsequent proceedings in partition were not, as to such party, res inter alios actce; for they were the consequences of his own act. And if one of two innocent parties must suffer, he must bear the loss, whose mistake has caused it.</p> <p>If both parties were ignorant of the true boundary of the lands of which partition was made, the adoption of a particular line in the plaintiff's petition .would partake of the nature of a compromise of a doubtful right, and if acted upon by the other parties, might constitute an estoppel in pais.</p> <p>The court will not reverse for an error, by which the party complaining of it, could not have been injured.</p> <p>The opinions of surveyors, though sometimes admissible in regard to facts, are not so, as to the construction to be given to a survey, as returned.</p> <p>A judgment upon a writ of error sued out by one of the parties, is no bar to a subsequent writ of error at the suit of the other party, on which different errors are assigned.</p>

<p>An executor or administrator who is guilty of gross negligence in the collection of the debts due to the estate, is personally liable for them, if lost through his delay in enforcing payment.</p> <p>He is a trustee for collection and distribution, and not for investment, and is therefore held to a different rule of liability from that which prevails in case of a guardian.</p> <p>An administrator having been surcharged on exceptions to his administration account, the widow and all the heirs are entitled to participate in the fund, as finally ascertained, though some of them filed no exceptions to the account.</p>

<p>The parol contract of a decedent, to give the plaintiff a certain portion of his estate, in consideration of services rendered, even if capable of being enforced, can only be, when clearly proved, by direct and positive evidence, and when its terms are definite and certain.</p> <p>A pi'omise to give the plaintiff, in consideration of services, “ as much as to any relation on earth,” is too indefinite, to be enforced against the executors of the promissor.</p> <p>The measure of damages, in an action for the breach of such promise, is the value of the services rendered, and not the proportion of the decedent’s estate promised to be given.</p>

<p>A testator made his will, devising and bequeathing to his wife, all his real and personal estate, and afterwards had a child born, who survived his father: Held, that the birth of such child operated as a revocation of his will, as to such child.</p> <p>Testator, by a will devising his whole estate to his wife, provided as follows : “ haying the utmost confidence in her integrity, and believing that should a child be born to us, she will do the utmost to rear it to the honour and glory of its parents:” Held, that this was-not such a provision for an after-born child, as would prevent a revocation of the will.</p> <p>_ The statutory rules, in Pennsylvania, as to the revocation of wills, by marriage and the birth of children, are as follows:—</p> <p>(1.) The will of a single woman is revoked by her subsequent marriage, and is not revived by the death of her husband.</p> <p>(2.) If a man makes his will and marries, and dies leaving a widow, so far as regards the widow, he dies intestate; that is, his will is revoked pro tanto.</p> <p>(3.) If a man makes his will, and has'an after-born child, or children, not provided for in such will, and dies leaving such after-born child, or children, so far as regards such child, or children, he dies intestate, and his will is revoked pro tanto.</p> <p>(4.) If a man makes his will and marries, and dies leaving a widow and child, not provided for in such will, his will is not revoked absolutely, as at common law, but only pro tanto.</p> <p>(5.) If a man makes his will, marries, and dies, leaving a widow, but no known heirs or kindred, it is clearly revoked, so far as to give to his widow, both the real and personal estate absolutely.</p>

<p>A judgment rendered by a justice of the peace, on an award of referees, for a sum exceeding $100, is void for want of jurisdiction; and an executor is not justified in paying such judgment, unless the claim upon which it was founded, be shown to be a just and legal one. .</p>

Mandamus. This was an alternative mandamus issued, at the relation of It. G. Hamilton, against The Select and Common Councils of the City of Pittsburgh, composed of D. Fitzsimmons, and others, commanding them to assess and levy a tax, to provide for the payment of interest upon bonds issued by the said city, in payment of its subscription to the capital stock of the Chartiers Yalley Railroad Company.

This was an ejectment by William Irwin, and others, devisees of' Samuel Irwinj deceased, against William Irwin, and others, the heirs at law of James Irwin, deceased, for a tract of 800 acres of land, in Westmoreland county, called the Jew’s land.