Volume 35 — Pennsylvania State Reports

This was an ejectment, by Joseph P. Trego and Mary his wife, against Rudolph Huzzard and others, for one undivided fifth part of a tract of 240 acres of land, in Young township. The case was before this court, on two former writs of error, and is reported in 7 Harris 441, and 10 Harris 368. Mrs. Trego claimed as one of the heirs of James Dun woody, her father, who was the legal owner of the tract, at the time of his death in 1826.

This was a judgment in the penal sum of $600, entered on the 14th June 1858, on a bond and warrant of attorney, in favour of Emma Kimmell against Theodore Barnett and D. Hamilton, conditioned for the payment, by the defendants to the plaintiff, of the sum of $300, within sixty days from the 9th June 1858.

This was an attachment execution at the suit of S. S. Fowler & Co. against The Pittsburgh, Fort Wayne, and Chicago Railroad Company, served on John Stewart, as garnishee. The parties agreed upon the following case stated, in the nature of a special verdict-:— “ The attachment in the above case was served on J. Stewart, the garnishee, on the 5th April 1859.

Error, to the Common Pleas of JSrie county. This was an action on the case by John Compton against William E..McNair, for the breach of a pa.rol contract for the sale of 100 acres of land, by the defendant, to the plaintiff.

Appeal in Equity from the Court of Nisi Prius. This was a bill in equity exhibited by John Ashhurst and Edwin M. Lewis, who survived Isaac R. Davis,.against The Mon-tour Iron Company, for the foreclosure of a mortgage executed to the complainants upon all the property of the Company, in trust for the bond-holders thereof.

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of replevin by Edward Laguerenne against Alexander E. Dougherty and Wells Walton, a constable, for certain goods and chattels taken by the defendants as a distress for rent.</p> <p>The defendants avowed the taking of the goods as a distress for four months rent due the 31st July 1858, by virtue of a tenancy commenced under the following lease, and continued by the holding over of the plaintiff, after the expiration of the term: — ■</p> <p>Memorandum.— The subscriber rents from Alexander E. Dougherty, the store, No. 39 south Front street (now occupied by me), between Market and Chestnut streets, extending through to, and fronting on Water street, for one year, commencing on the first day of July 1857, at the rate of thirteen hundred dollars per annum, payable in monthly instalments of one hundred and eight dollars and one-third of a dollar (f> 108J,) on the last day of each month, during said term. It is understood and agreed, that the aforesaid premises shall he kept in good condition and repair, at the expense of Edward Laguerenne, and at the end of said term, said premises shall be delivered up to the lessor, his executors, administrators, or assigns, in good condition and repair, as they now are, ordinary wear and tear only excepted. It is further agreed, that the said premises, or any portion thereof, shall not he let or underlet, nor shall this lease be assigned by the lessee, without the consent in writing hereon endorsed by the lessor. It is further agreed, that-if the rent is not punctually paid, as above provided, and any portion thereof shall remain unpaid fifteen days after any instalment shall be due, or upon the breach of any other condition of this lease, the subscriber shall he a mere tenant at sufferance, subject in particular to be -dispossessed by the said Alexander E. Dougherty, his executors, administrators or assigns, without notice or process of law, with release of errors and of damages.</p> <p>E. Laguerenne. [seal.]</p> <p>Philadelphia, June 5, 1857.</p> <p>Alexander E. Dougherty, the owner of said store and premises, hereby agrees to rent the same, upon the terms above stated, to the said Edward Laguerenne.</p> <p>The above lease signed, ] sealed and delivered in V A. E. Dougherty, [seal.] presence of J. W. Ryerss. J</p> <p>On the trial, the plaintiff’s counsel presented certain points in writing, upon which they requested the court to charge the jury, the 4th and 7th of which raised the only material question in this case, namely, whether the plaintiff, after the 30th June 1858, became a tenant by the year, and whether his rent would be due and payable before the termination of the year.</p> <p>The court below declined so to charge the jury, to which the plaintiff excepted; and .a verdict and judgment having been rendered in favour of the defendants, finding the rent in arrear to be $356.99, and the goods distrained to be of like value, the plaintiff removed the cause to this court, and here assigned the same, inter alia, for error.</p>

This was an appeal by George W. Thorn, from the decree of the court below, confirming the sale of a ground-rent of $210 per annum, made by William J. Caner, administrator de bonis non, cum testamento annexo, of James E. Brooks, deceased, under the provisions of the Act of 18th April 1853.

This was an appeal by Edward D. Clery from the decree of the court below, confirming the sale of the real estate of James Banford, deceased, for the payment of legacies.

This was an action of assumpsit by Jacob Hoop, Jr., against Horatio Hoop. The declaration laid the alleged promise by the defendant, to have been made on the first day of March 1857. By reference to the almanac, it appeared that the 1st March 1857 was Sunday.

This was an action on the case by Catharine G. Ogier, the widow of Dr. Septimus A. Ogier, against the Pennsylvania Railroad Company, to recover damages for the negligence of the defendant, which resulted in the death of the plaintiff’s husband.

This was an action of debt by William Davis, Jr., against John H. Warder, on a bond given under the provisions of the Sheriff’s Interpleader Act of the 11th April 1848. At March Term 1857, a testatum fieri facias, at the suit of William Davis, Jr., against Zenas Bliss, was issued out of the court below, directed to the sheriff of Montgomery county; by virtue of which the sheriff levied upon certain goods and chattels in the possession of the defendant in the execution.

<p>Under an authority to a municipal corporation, to curb and pave a public highway, and to file liens for the expense thereof against the lots of ground fronting thereon, a lien cannot be supported against a lot, which is separated from such highway, by a railway running side by side therewith..</p>

<p>This was an application for a charter of incorporation, under the provisions of the Act of 8th April 1888; Brightly’s Purd. 165.</p>

<p>A provision in the charter of a beneficial society, that the corporation shall not be dissolved while nine members remain, is not authorized by law; and a charter containing such a clause will not be approved.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by the Southwark Bank against Christian Gross and William D. Gross, trading as Gross & Brother, upon a promissory note, of which the following is a copy:—</p> <p>“ Philadelphia, 13th June 1857.</p> <p>“ Four months after date, we promise to pay to the order of Cyrus Rex, fifteen hundred dollars, without defalcation, value received, at No 7, South 3d St.</p> <p>“ Christian Gross & Bro.</p> <p>Endorsed, “ Cyrus Rex.”</p> <p>On the trial, the defendants gave evidence tending to prove that the words, “ at No. 7, South 3d St.,” had been added to the note by Oyrus Rex, the payee, after its execution by the makers. And the court below charged the jury that, if those words were added by the payee, after the execution of the note by the defendants, and without their authority, it was void.</p> <p>To this instruction the plaintiff excepted; and a verdict and judgment having been given for the defendants, the plaintiff removed the cause to this court, and here assigned the same for error.</p>

This was an appeal by Collins, Rockafellow & Co., from the decree of the court below, distributing the proceeds of a sheriff’s sale of the personal property of Andrew Drake. On the 1st April 1858, Joseph Kirkner demised, by parol, to Andrew Drake “ The Fountain Inn Tavern,” at Barren Hill, for the term of one year; the tenant to pay the annual rent of $700 and one-half of the taxes; and six months’ rent to be paid in advance.

<p>Appeals in Equity from the Common Pleas of Montgomery.</p> <p>This was a hill in equity by William H. Scheetz and Francis S. Scheetz against Daniel Stout, for an injunction to restrain the defendant from obstructing them in the exercise of their right to enter upon a tract of land belonging to the defendant, in order to clean the bed of a stream called Sandy Run, by the waters of which the plaintiffs’ grist-mill was propelled.</p> <p>The bill set forth that the complainants were the owners in fee, and occupiers of a certain tract of land in Springfield township, upon which was erected an ancient mill, which was, and had been for a long time past, used by the complainants, and those under whom they claimed, as a grist-mill. That the machinery of the said mill had always been propelled by the waters of a creek, called Sandy Run. That the said creek, in its natural course, flowed through a tract of land owned and occupied by the defendant ; thence through land formerly owned by the complainants (but lately conveyed by them to John Fitzwater, reserving, however, the stream of water and one pole of land on each side thereof), into and through the land so owned and occupied by the complainants, and supplied all the power for the operations of their said mill.</p> <p>That for more than thirty years past, the complainants and those under whom they held the said land and mill, had been in the practice, without interruption, molestation, or hindrance from any person whatever, of going into and upon the land so owned by the defendant, and cleaning the bed of the said creek, through the whole course of the same, whenever it became obstructed from any cause whatever; and of placing the earth, &c., so removed therefrom, upon the banks thereof, upon the land owned by the defendant, within one perch of the said stream on either side.</p> <p>That, on the 1st August 1855, the complainants went upon the premises of the defendant, in the manner they had, for more than thirty years before that time, been accustomed, and as they lawfully might, and cleaned out from the bed of the said stream, where it passed through the defendant’s land, certain obstructions existing therein, and deposited the earth, &c., removed therefrom, as they had during all the time aforesaid, in like case, been accustomed, and of right ought, upon the banks of the said stream, upon the land of the defendant; and that the defendant, immediately afterwards, threw back the same into the said stream; and from that time had maintained the said obstruction in the said stream, and refused to permit the complainants to remove the same; by reason whereof the waters of the said stream were prevented from flowing in its channel through the defendant’s land, to the complainants’ mill, as freely and uninterruptedly as it used to do for more than thirty years prior to such obstruction thereof by the defendant; and the operation of the said mill had, in consequence thereof, been greatly retarded and its value lessened.</p> <p>That the complainants had repeatedly requested the defendant to remove the said obstruction from the bed of the said stream; but that he had refused so to do, and had absolutely forbidden them from entering upon his premises for the purpose aforesaid; and denied their right so to do.</p> <p>They, therefore, prayed that the defendant might be restrained, by injunction, from hindering and preventing them in the exercise of their said rights when and as often as the bed of the said stream should, from any cause, become obstructed, &c.</p> <p>The defendant, by his answer, admitted that he had done the acts complained of in the bill; but denied the right of the complainants to enter upon his land for the purposes set forth in their biH.</p> <p>The complainants filed a general replication; whereupon the defendant asked the court to direct an issue to try the facts in controversy. The court below refused to grant an issue, and appointed an examiner to take testimony. Many witnesses were heard, whose testimony it is unnecessary to detail, inasmuch as the result of the evidence is fully stated in the following opinion delivered in the court below, on the hearing of the cause, by Smyser, P. J.:—</p> <p>“ The complainant rests his claim to the right which he asks to have protected by an injunction, on two grounds: 1st. On the ground of a license executed, on the faith of which labour and money have been expended, and which is, therefore, irrevocable: 2d. On the presumption of a grant from adverse claim and user for twenty-one years and upwards.</p> <p>“As by the pleadings, no question is raised as to the complainants’ right to stand upon both grounds of title, at one and the same time, however inconsistent, I shall treat the case as though the evidence in support of both were properly before us for consideration.</p> <p>“ And first, as to the license: We are of opinion that it is not sufficiently proven. The authority to divert the course of the .stream into the new channel prepared for it in 1820, is clearly enough established, and is hardly gainsayed. But the alleged license to enter upon the defendant’s meadow, for the purpose of cleaning and repairing, and depositing the mud, earth, sand, gravel, &c., removed, in the process, from the bed of the stream, upon its banks, within the meadow, rests, as we conceive, solely on the testimony of a single witness, which is insufficient to prevail against the sworn answer. That witness is George Lenhart. John Whitcomb, the only other witness who speaks on the subject, testifies only to the permission to dig the new channel, but says nothing as to the right to clean, repair, &c.</p> <p>“ The testimony of Charles Eeinemare is relied on as establishing circumstances equivalent to the testimony of a second witness. We do not think it is entitled to this effect, for two reasons: 1st. Because the circumstances he speaks of did not transpire until in the year 1847 — being twenty-seven years after the date of the alleged license: 2d. Because the fact itself is, in our opinion, insufficient. The transaction stated by him seems to have been in the nature of a special agreement or arrangement upon and in accordance with special stipulations, involving no necessary recognition of a previously existing right in complainants. It seems rather to have amounted to the exaction of a duty from them, which is the very reverse of the present claim.</p> <p>“ I do not enter into an examination or analysis of Lenhart’s testimony, as this view renders it unnecessary; although there are considerations calculated to disparage it as to the accuracy of his recollections — although not, perhaps, as to his integrity. There is one consideration, however, too obvious and significant to be overlooked. Is it to be conceived, that a right, deemed so important to the party under whom complainants hold, and encumbering the estate of the other party with a quasi easement, would have been created and left to stand upon a mere casual conversation, in a private interview between the parties alone, evidenced by no writings, and not even a witness called in ? — for Lenhart’s presence, according to his own account, was purely accidental, and not called for or provided by the parties. And especially does this seem unusual and strange, when we remember, that the right so created and given, was to be perpetual — extending through all future time, when the witnesses of the oral agreement, even if any had been provided, would be dead, and the proof of it impossible. ’Tis true, every license is not an estate, or even an easement. Still, the hypothesis is, that a permanent right was intended to be created, worthy of a more permanent muniment.</p> <p>“ Secondly. As to the title by user and prescription. We think there is sufficient evidence to show that complainants, and those whose title they hold, exercised the privilege of entering upon respondent’s land within the meadow, and cleaning the new channel and freeing it from obstructions, for the period of twenty-one years and upwards from the time it was dug and the water of the ereek turned into it; and that this was done under a claim of right, adversely and continuously, and with the knowledge and acquiescence of the owners and occupiers of the servient tenement, may fairly and reasonably be inferred from the whole of the testimony. There is too strong an array of positive testimony, by those who were personally engaged in the work, to be overborne by the negative evidence of witnesses, however respectable.</p> <p>“ But we think the evidence does not establish the right to place and leave on the bank the material removed from the channel. The privilege so claimed and exercised, after the lapse of twenty-one years, became a right, which has not since been forfeited or lost by nonuser; and in this right, to the extent hereinafter designated, complainants are to be protected by an injunction.</p> <p>“ The court is of opinion, that the right may and ought to be exercised with as little inconvenience and damage to respondent, as is consistent with its fair and proper exercise; and that there is no occasion or necessity for (and, therefore, we do not recognise the right of) going upon respondent’s meadow along the margin of the stream, with oxen, horses, mules, carts, or wagons, or anything of that sort. The whole extent of the channel within the meadow is but about 200 feet; the amount of dirt and rubbish to be taken out and removed, we are satisfied, from the proof and our own inspection of the ground, can never be great at any one time, and may easily be removed with barrows, hand-carts, and similar means.</p> <p>“ This limitation thus imposed is in accordance with the rule that prohibits the owner of an easement by necessity, from doing unnecessary injury to the servient tenement, and requires him to repair, so far as he can, whatever damage he may have caused; and it is in harmony, also, with the proof, which, taken altogether, shows no exercise of the right here claimed and allowed, on the footing of prescription, otherwise than as the same would have been in the case of a natural easement.</p> <p>“ The new channel is to be taken as substituted by consent for the original bed and course of the stream; but with no other incidents than those that would have pertained to it in its natural channel; and complainants occupy the position of those who have acquired the prescriptive right to enter on the premises of a mprariparian owner for the purpose of cleaning such a stream and removing casual obstructions in the bed thereof, or of repairing such breaches in the banks as would divert the water, without its again returning to its ancient bed or channel.</p> <p>“ This right they have in this substituted channel, according to its actual width and condition at the time of the filing of the bill in this case, as ascertained and described and set forth in the draft and survey of J. Morton Albertson, marked ‘Daniel M. Smyser, Nov. 10, 1858,’ annexed hereto and ordered to be filed herewith, and which is the same referred to and spoken of by the said J. Morton Albertson, in his testimony delivered before the examiner.</p> <p>“ The right thus recognised the complainants must so exercise as to do no unnecessary damage to the defendant. They must, in a reasonable time, and without any unnecessary delay, remove from respondent’s premises the dirt, rubbish, &c., which they may remove from the stream in cleaning it, or so much thereof as is not used in the necessary repairs of the banks; they are to do this, subject to the restriction hereinbefore mentioned, as to the means, vehicles, and instruments to be used, and without prejudice to respondent’s right to the use of the water on his own land in any and all lawful ways, so that the latter, after using it, return it to its proper channel without any unnecessary detention thereof.</p> <p>“In the enjoyment of this right, thus defined and limited, complainants are entitled to be protected against hindrance, molestation, or interference; and, as the case stands before us, by an injunction, which is, accordingly, awarded on the terms and conditions aforesaid.</p> <p>“In regard to the costs, we consider this a fit case for an apportionment of them on equitable principles. The complainants’ right, though partially established, was not so clear and manifest as to dispense with the necessity for proof to establish it, especially when we remember that defendant’s occupancy and ownership is comparatively recent — that the claim had not been asserted or right challenged for some time previously, and that both rested on grounds and evidence of which the defendant may well have been unapprised. The decree, moreover, sustains a part only of the claim challenged by the bill. We think justice will be done, in this part of the case, by directing that the examiner’s fees, which we fix at $75, be paid equally by the parties; and that complainants be allowed all their other costs in the cause, to be taxed and allowed in the usual manner.</p> <p>“ The solicitor for complainants will prepare and present a decree, in accordance with the foregoing directions, giving notice thereof to the solicitor for defendant, according to the rule in such cases.”</p> <p>From the decree made in accordance with this opinion, both parties appealed to this court.</p>

Error, to the Common Pleas of Bucks county. This was an ejectment by Mary Jane Payne against Frederick Wolf, for a tavern property and three contiguous tracts of land in Richland township, containing 54 acres 114 perches. The landlord, T. H. Wilson, treasurer of the Central Insurance Company, who claimed title to the premises, as a purchaser at sheriff’s sale, was subsequently admitted as a defendant on the record.

This was an amicable action .on the case by Abraham Cornell and Christiana his wife, in right of the said Christiana, against Washington Mathews, executor of Samuel Lovett, deceased, wherein the parties agreed upon a case stated for the opinion of the court, in the nature of a special verdict.

<p>In an action against the publishers of a newspaper, for neglecting to insert an advertisement of a public sale of real estate, for which they received payment in advance, the measure of damages, in the absence of fraud, is the amount paid to them for the publication of such advertisement. They are not liable to speculative damages.</p>

<p>Error to the Common Pleas of Philadelphia.</p> <p>This was an action of covenant by Angelina Smith against Jacob W. McCurdy for arrears of ground-rent, reserved by deed from the plaintiff to the defendant, dated the 17th November 1856.</p> <p>The terre tenant of the premises filed the following affidavit of defence:—</p> <p>“ Margaret Haviland, being duly sworn, saith, that she is the owner in fee of the lot of ground described in the copy of the ground-rent deed filed in this cause, and said lot is subject to the ground-rent therein reserved. But said ground-rent does not now, nor did it on the first day of July last, belong to the plaintiff; but did then and does now belong, and is owned by Herman Smith, who purchased the same at sheriff’s sale, prior to that date, and has received the deed for the same; and now claims the same, and has brought suit against the deponent in this court, to June Term 1859, No. 559, to recover the same rent now sued for by the plaintiff in this cause. The said ground-rent was purchased by said Smith at sheriff’s sale, as the property of George Seabrook, under proceedings by a judgment-creditor of said Seabrook; and this deponent is informed, and believes, and expects to prove on the trial of this cause, that said Seabrook, being indebted and insolvent, transferred the said lot to the plaintiff, without any consideration, and to defraud his creditors, on the 29th February 1856 ; she being a person without means and living with him, and the said transfer being merely made to cover said property and secure it for his own benefit; and the said Seabrook procured said Angelina Smith to convey the same to said defendant, reserving said ground-rent, and to hold the same for his own benefit, under the same trust and for the same fraudulent purpose. The said ground-rent, being thus the property of said Seabrook, one of his creditors, viz., the said Smith, obtained judgment against him, and sold it as aforesaid. Deponent is willing to pay said rent to said Herman Smith, he being the rightful owner of the said ground-rent.”</p> <p>The court below gave judgment for the plaintiff, for want of a sufficient affidavit of defence; the following opinion being delivered by Allison, J:—</p> <p>“ This is an action of covenant for arrears of ground-rent. The defendant, by affidavit, denies his liability under his covenant, asserting that the title to the lot of ground out of which the rent was reserved, was originally in one Seabrook, and was by him conveyed to plaintiff, without consideration, and ■ with intent to defraud his creditors; and that Herman Smith, a judgment-creditor of Seabrook, subsequently to the creation of the ground-rent, levied upon the same as the property of Seabrook, sold it under his judgment, and became himself the purchaser at sheriff’s sale.</p> <p>“ This defence is directly in the teeth of the principle, so often affirmed and reaffirmed, that it has become one of the axioms of the law now most firmly established — that a tenant, so long as he remains in possession, cannot impeach or deny the title of his landlord. This principle has, however, an exception as well recognised as the rule itself — that where a lease has been unfairly obtained by misrepresentation, fraud, or trick practised upon the tenant by the landlord, he is not estopped from taking defence to the title under which he entered into possession: 1 Rawle 408; 6 Binn. 45; 4 S. ‡ R. 382; 6 Barr 154. Do the facts, disclosed by the affidavit, bring this case within the exception ? If they do, judgment cannot be entered for the plaintiff.</p> <p>“ The defendant does not assert that any false or fraudulent statements were made, to induce him to take the conveyance of the lot and enter into his covenant to pay rent. ■ He merely sets up a state of facts which, if proved to be true, in a contest between • the'rival claimants to the rent, would pass to the sheriff’s vendee a good title as against the present plaintiff. The fraud upon which a tenant can rest a defence to his landlord’s title, must be a fraud practised upon himself and to his prejudice, not, as is here charged, a fraud upon third parties, and which does not in any sense injure him; for if Herman Smith succeeds in establishing his title to the rent, it does not destroy or in any degree impair the title of the defendant to the lot of ground of which he now enjoys the possession. It would do no more than substitute one landlord for another. Nor can the tenant under such circumstances, by attorning to another, defeat the title under which he holds the land subject to the payment of the rent reserved. The sheriff’s vendee must first establish his right to oust the plaintiff in possession, before the defence here set up by the tenant can prevail so as to defeat a title recognised by himself, and under cover of which he obtained the lot out of which the rent issues.”</p> <p>To review this judgment, the defendant removed the cause to this court, and here assigned the same for error.</p> <p>Hirst, for the plaintiff in error. — The affidavit of defence shows a complete divestiture of title out of Angelina Smith.</p>

<p>A surety in an original obligation who has paid the debt, is entitled to be subrogated to the rights of the ereditor, not only as against the principal, but also as against a subsequent surety for the principal.</p> <p>The doctrine of subrogation does not depend on privity, nor is it confined to cases of strict suretyship; it is a mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay ic; and to relieve him whom none but the creditor could ask to pay.</p> <p>Actual payment discharges a bond or judgment at law, but not in equity, if justice require the parties in interest to be restrained from alleging it, or insisting on their legal rights.</p> <p>A party who attends and cross-examines witnesses, on a short rule to take depositions, waives all objections to the sufficiency of the notice.</p> <p>This court cannot consider an objection to a deposition, that the witnesses examined were not going witnesses, as specified in the rule. That is a matter for the control of the court below.</p> <p>The admissibility in evidence of the exemplification of a record, depends upon the prothonotary’s certificate.</p>

This was an action of trover by Greoge McHenry and John McC. Smiley, assignees of the Western Insurance Company, against Andrew C. Craig and Joseph B. Craig, trading as A. C. Craig & Co., for a promissory note for $2000, of which the following is a copy:— $2000. Philadelphia, April 1, 1857. Twelve months after date, we promise to pay to the order of the Western Insurance Company, two thousand dollars, without defalcation, value received.

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an ejectment by The City of Philadelphia against Rufus Bicknell, Henry B. Fussell, and Maria D. Fussell, for the Talbot Academy lot, in the twenty-fourth ward of the city of Philadelphia.</p> <p>On the 10th March 1808, William Hamilton conveyed the premises in dispute to Daniel Smith, Andrew Petit, and James Traquair, in trust and for the sole use of erecting thereon a house to be appropriated as an academy or seminary of learning for the instruction of youth, and for no other use or purpose whatsoever; provided, that if the said trustees, &c., should neglect to erect the said building within twenty years, it should be lawful for the grantor, or his heirs, to re-enter upon the premises, and hold the same as if the said deed had not been executed.</p> <p>The building was accordingly erected, and used for school purposes until about the year 1855, when it was burned down.</p> <p>On the 18th January 1814, “ The Talbot. Academy in the village of Hamilton,” was incorporated under the provisions of the Act of 6th April 1791; and, on the 23d July 1814, Daniel Smith and Andrew Petit, the surviving trustees, conveyed the lot and school-house to this corporation.</p> <p>Nathan Jones, one of the corporators, had furnished stone for the erection of the building, and Jesse Vodges, the carpenter and builder, had filed a mechanic’s lien against it for $791.30; and for the purpose of extinguishing these claims, the corporation, on the 12th July 1815, mortgaged the premises to Nathan Jones, to secure the payment of the sum of $1000, on the 1st July 1816.</p> <p>Under proceedings on this mortgage, the premises were sold by the sheriff, on the 10th September 1826, to Nathan Jones, for $600; and a deed was. executed to him, on the 27th September 1827.</p> <p>On the 15th July 1837, the widow and heirs-at-law of Nathan Jones conveyed the premises in dispute to Thomas Davis, John Daly, and James Coxey, in trust to permit the members of the Baptist Church, in Blockley township, to occupy the same for a school, academy, or seminary of learning; and, on the same day, the trustees mortgaged the premises to secure the payment of the sum of $300 each, to Ann Jones and Catharine Jones, two of the grantors.</p> <p>Under proceedings on this mortgage, the premises were again sold by the sheriff, to Mary Jones and Catharine Jones, for $700, and a deed therefor was executed to them by the sheriff, on the 27th September 1845. The defendants showed title under Ann and Catharine Jones; and in addition thereto, Bicknell showed a deed from some of the heirs of William Hamilton, deceased, for any interest they might have in the premises.</p> <p>On the 1st April 1852, an Act of Assembly was passed, vesting all the right, title, and interest of the extinct corporation, known by the name of “ The Trustees of the Talbot Academy, in the Village of Hamilton,” in the premises, in the “Controllers of Public Schools of the First School District of Pennsylvania,” for the same uses and purposes as the same were held by the Trustees of the Talbot Academy, during their corporate existence: Pamph. Laws 210.</p> <p>The court below instructed the jury, that the mortgage executed by the corporation of The Talbot Academy, covered the legal and equitable interests in the premises; that by virtue of the proceedings under the mortgage, Nathan Jones obtained an absolute fee simple title in the same; and therefore, the defendants were entitled to a verdict.</p> <p>To this charge the plaintiff excepted; and a verdict and judgment having been rendered for the defendants, the plaintiff removed the cause to this court, and here assigned the same for error.</p>

This was a scire facias by Margaret Lewis, administratrix of Enos Lewis, deceased, against Samuel Townsend, on a mortgage for $6000, given by the defendant to the plaintiff’s intestate, dated the 2d April 1855, to secure the purchase-money of the mortgaged premises.

This was an action on the case by Bridget McGrath against Richard B. Jones and Rudolph Klauder, to recover damages for personal injuries sustained by the plaintiff, by reason of the falling of a party-wall, erected on the dividing line between two lots owned by the defendants, in consequence of their negligence in wrongfully permitting it to remain- standing, though well knowing it to be old, unstable, dilapidated, and out of repair.

Error, to the District Court of Philadelphia. This was an ejectment by Charles Goepp against Zepherin Gartiser, for a house and lot of ground on the east side of Fifth street, between Morris and Moore streets, in the city of Philadelphia. In 1851, Samuel Ebert was the owner' of 21 lots of ground, occupying the east side of Fifth street, between Morris and Moore streets. They were divided into three blocks, by two small intervening streets.

Error, to the District Court of Philadelphia. This was an action of assumpsit by Amasa S. Foster against “ The Pennsylvania Company for Insurances on Lives and Granting Annuities,” to recover the interest on $8187.13 invested in five per cent, loan of the state of Pennsylvania, and held by the defendants in trust.

<p>Error to the- Common Pleas of Schuylkill county.</p> <p>This was an action of debt by The Commonwealth of Pennsylvania, for the use of Samuel Heffner, against Christian M. Straub, formerly sheriff of Schuylkill county, and his sureties, upon his official bond, for his neglect properly to execute a writ of restitution in favour of the plaintiff, Samuel Heffner. The circumstances of the case out of which the plaintiff’s alleged cause of action arose, are fully stated in the case of Heffner v. Betz, reported in 8 Qasey 376.</p> <p>The plaintiff averred in his declaration that, on- the 23d July 1835, Peter Lazarus, administrator 'of George Gass, deceased, obtained a judgment against him for $341.30; that á fieri facias was issued thereon, by virtue of which certain real estate in the borough of Pottsville was levied on, but not condemned; that to December Term 1838, a liberari facias was issued, under which the sheriff placed the said Peter Lazarus in possession; that to March Term 1839, a scire facias ad computandum et rehabendum terram was issued, and on the 14th September 1850, judgment was rendered thereon in favour of the said plaintiff (Samuel Heffner) ; that a writ of restitution was issued on this judgment, commanding the sheriff to redeliver possession to the plaintiff; but that the said sheriff had wholly failed and made default in executing the said writ, and had falsely and deceitfully returned to the said writ, that he could not deliver possession as by the said writ he was commanded.</p> <p>To this declaration, the defendants pleaded four special pleas: 1. That a former suit was pending on the sheriff’s bond. 2. Performance of the conditions of the bond. 3. That neither the said Peter Lazarus, administrator of George Gass, deceased, nor any person claiming under him, was in possession of the premises named in the said writ of restitution, but that the said premises were in possession of and occupied by George Betz and Gottlieb Reger, who claimed title thereto in fee simple; all which facts he truly returned to the said court; wherefore he could not redeliver possession to the plaintiff as by the said writ he was commanded. 4. That the plaintiff had no title to the premises at the time the writ issued.</p> <p>The plaintiff demurred to the first and third of these special pleas, and took issue on the others. The court below gave judgment for the defendant on the demurrers; and delivered the following opinion:—</p> <p>“The first question presented by the pleas and demurrers thereto, is, whether a second suit can be maintained upon the official bond of a sheriff, during the pendency of a prior suit upon the same instrument. The question arises under the Act 14th of June-1886, which has not received a judicial construction by our Supreme Court.</p> <p>“ Under the Act of 28th March 1803, actions of debt or scire facias are given upon the sheriff’s official bond or recognisance, to the Commonwealth or individuals who shall be aggrieved by the misconduct of the sheriff. The verdict is for the damages proved (not the penalty of the bond) and the like proceeding, by .suit, may be had, as often as damages shall be sustained: Commonwealth v. McCoy, 8 Watts 154. But the Act of 1836, in reference to official bonds, works a radical change in the mode of proceeding. By its provisions, judgment is entered for the penalty; but. to protect the rights of all who may be injured by the misconduct of the officer, either before or after judgment for the penalty, the act provides that two or more persons having several interests, may join in suing out the bond, or it shall be lawful for any person to whom a cause of action shall have accrued at any time before judgment, upon a suggestion filed, with leave of the court, to be made party plaintiff on such writ; each party interested may declare separately, and have separate trials and verdicts; the act further provides, that those injured after judgment for the penalty, may proceed by scire facias on such judgment, to recover damages sustained.</p> <p>“ A remedy is thus provided for every case that could arise, either before or after judgment for the penalty, through the medium of one suit; and it is evident, the legislature intended to change the mode of proceeding under the Act of 1803, and avoid a multiplicity of suits and the accumulation of costs consequent upon a separate suit on the same bond, against the same parties, by directing judgment to be entered for the penalty, to stand as a security for after breaches; and requiring those who might have a cause of action before judgment was obtained for the penalty, to become parties to the suit pending.</p> <p>“ That there can be but one judgment for the penalty on the same bond, against the same party, cannot be controverted: see Duffy & Mehaffy v. Lytle, 5 Watts 130. But, conceding this, plaintiff’s counsel contend, that until judgment is obtained, separate actions may be brought by as many as have cause of action; but the first judgment obtained will defeat a recovery in the other suits pending on the same bond. The Act-of 1836 used the same language in giving a scire facias to parties aggrieved after judgment, that is used in prescribing the mode in which those who have a cause of action shall become parties to a suit pending.</p> <p>“ ‘ It shall be lawful for' the party aggrieved to proceed by a writ of scire facias after judgment,’ and, ‘it shall be lawful for any other person to whom a cause of action shall have accrued at any time before judgment upon suggestion,’ &c., to be made a party plaintiff; the act says it shall be lawful for any person to be made a party plaintiff to a suit pending, but it designates no other mode of redress after a suit has been brought. It does not, as the Act of 1803, provide that suit may be brought as often as damages shall be sustained, but it points out a mode in which it shall be lawful to proceed, and,, in the absence qf any qther provision, it necessarily follows that it shall be unlawful to proceed in any other way than that designated by the statute. All acts altered or supplied, are repealed by the 7th section.</p> <p>“Where a remedy is provided by Act of Assembly, the directions of the act must be strictly pursued. Bringing suit as often as damages were sustained, was the mischief of the Act of 1803, which the legislature intended to remedy by the Act of 1836, in permitting but one suit and one judgment, but so moulding such suit or judgment as to give every one aggrieved, the advantage of a pending suit, as fully as if commenced but by one party. Why permit several suits to be commenced when but one can be prosecuted to judgment ? It is difficult to understand, how a party can have a legal right to commence a suit and have a good cause of action, but lose his right and be turned out of court with the payment of costs, without any default or negligence on his part; yet this may frequently occur, if suit may be brought by every one who has a cause of action, and but one can be prosecuted to judgment. The suit first brought, though prosecuted with due diligence, .may, on account of the absence of a witness, sickness of counsel, or other legal ground, be continued, and the’last suit tried first. A second judgment cannot be entered on the same bond, consequently, the first plaintiff is turned out of court, and must have recourse to a scire facias upon the judgment obtained in the second suit, if perchance he is not barred, by the intervention of five years, from all redress against the sureties on the bond.</p> <p>“ The present trial list affords a striking illustration of the impropriety of the construction of the Act of 1836, contended for by plaintiff’s counsel; the suit referred to in defendant’s plea is on the list, and has just been passed; the counsel say it is the next case for trial; if the plaintiff- in this case can recover, there can be no recovery in the suit first brought, so that we would probably have to await the verdict in this case before we could pass upon the other: again, if we are in error in deciding that the present suit cannot be maintained, and in entering judgment for the defendant on the demurrer, our error will be corrected by the Supreme Court, and the case sent back to be again tried. But if there is a recovery in the other case pending, another trial will not avail the plaintiffs, for the bond would be merged in the judgment for the penalty, and- there cannot, as we have said, be a second judgment on the same bond. In these cases, five years have transpired from the execution of the bond; the party, therefore, who obtains the first judgment defeats the claims of the other'; the consequence then would be, that our error of judgment would for ever defeat the present plaintiff’s recovery, although, perchance, his present position in having his cause first tried, gives him -a legal right to recover. These difficulties, and others that might be mentioned, must frequently arise, if more than one action may be brought under the Act of 1836. But we cannot suppose that the legislature intended to make the rights of parties depend upon the absence of a witness, the sickness of counsel, or infallibility of the judge who might try the cause, thus placing their right to recover upon contingencies altogether beyond their control. A second suit might work a serious injury to those made parties to the first, and could be of no advantage to the plaintiff which would not be secured by becoming a party to the first trial.</p> <p>“ Suppose a suit is brought, and all who have a cause of action become parties to it, except a particular friend of the sheriff's,, or some of his sureties, who is of unsocial habits and prefers sailing in his own boat. He brings his suit just before his action is barred against the sureties, and as soon as the five years expire the sureties consider it more to their advantage to pay one claimant than a dozen, and, to avoid the uncertainty of a trial, confess judgment on the second action; this would be a very convenient mode of disposing of all other claimants. Eor the reasons stated, we sustain the demurrer to the first plea.</p> <p>“ The third plea and demurrer raised the question as to the legality of the sheriff’s return in the case of Peter Lazarus, administrator of George Gass, v. Samuel Heffner, to the writ issued, No. 48, September Term 1851, to redeliver possession of the real estate to defendant, Samuel Heffner; to this writ the sheriff made a special return that he did not find Peter Lazarus, administrators, he., the plaintiff in the writ, or any person holding or claiming under said- plaintiff, in possession of the premises mentioned and described in the writ; but he found George Betz and Gottlieb Reger in possession of the same, and stated the title by ■which they claimed, and therefore he could not redeliver the possession to Heffner, the defendant in the suit.</p> <p>“ The truth of the return is admitted by the demurrer to the third plea, and the only question presented is its legality. Was the sheriff required to redeliver possession to Heffner when he found strangers to the proceeding in possession, and not claiming possession through or under the plaintiff ?</p> <p>“ Writs of this kind to redeliver possession to defendants, after an extension and delivery to plaintiff on a liberari facias, are seldom issued in Pennsylvania, and the duty of the sheriff is not settled by any adjudicated cases that we have been able to discover.</p> <p>“ The practice in Pennsylvania upon writs of liberari facias, prior to the Act of 13th April 1807, was conformed to the practice in England upon writs of elegit. Originally in England, the sheriff, upon a writ of elegit, delivered actual possession to the plaintiff, 2 Saund. 69 in note; but this practice had the effect of putting a purchaser who held by title, prior to the judgment on which the elegit issued, and a stranger to the judgment and execution, out of possession; this hardship produced a change in the practice in England, and the sheriff was not required to deliver actual but only legal ’possession of the lands extended, and to obtain actual possession the plaintiff was required' to proceed by ejectment. This mode of practice was adopted in Pennsylvania on writs of liberari facias, from analogy to the practice in England upon writs of elegit, and it was the practice in Pennsylvania, prior to the Act of 1807, for the sheriff, upon a liberari facias, to deliver the legal possession only to the plaintiff, the defendant was not turned out of actual. possession, and the plaintiff could only obtain the benefit of his process by ejectment. See 1 Smith’s Laws 63, note.</p> <p>“To avoid the delay of a second lawsuit, the Act of 13th April 1807 provided, * That, on the execution of a liberari facias, where the defendant or his tenant is in possession of the premises to be extended, the sheriff shall deliver the actual possession thereof to the plaintiff or his agentthe sheriff then can only deliver the actual possession when he finds the defendant or his tenant in possession, and where he finds strangers in possession, he should make a special return of the facts.: see McMichael v. McKeon, 10 Barr 143. Had this been a writ of liberari facias, the sheriff could not put the plaintiff in possession under the Act of 1807. It .is true the Act of 1807 does not embrace writs ad rehabendum terram, but if we have no legislation changing the English practice on writs of elegit, we ought not to adopt a more rigid practice than is sanctioned by their courts, which will not permit the sheriff to give the plaintiff actual possession, lest, perchance, he might commit the very wrong which would be perpetrated in this case, to wit, to put out of possession persons who are strangers to the judgment and proceeding, and who may have a superior title to either the plaintiff or defendant in the writ of possession.</p> <p>“We would prefer, in the absence of statutory provision, to adopt the practice in writs ad rehabendum, prescribed by the Act of 1807 in writs of liberari facias, that is, to require the sheriff, where he finds the defendant or his tenant in possession, to give actual possession to the plaintiff, but where he finds strangers in possession, 'claiming by title adverse to both parties, to return the facts; this will avoid the delay of an action of ejectment, as now practised in England, and, at the same time, guard the execution of the writ from injustice and hardships, in the same manner the legislature have guarded the execution of a liberari facias. To permit a bond fide owner to be ejected from his habitation, by virtue of a judgment of court to which he was a stranger, and of which he had no notice, was a grievance too intolerable to be permitted by the courts of England at a very early day, and hence, their change in the mode of executing writs of elegit, to avoid the very evils we are asked to sanction in this case.</p> <p>“ We do not think it would be very creditable to the courts of Pennsylvania, to adopt a practice long since abandoned in England, by reason of the great wrong it might inflict upon persons strangers to the proceeding, and we will certainly not be the first to adopt, in our courts, the ancient relic of English barbarity. The sheriff, in making his return, followed the Act of 1807, and the practice sanctioned by our courts on writs of liberari facias, and in this we perceive no error. We sustain the demurrers, and direct judgment to be entered on them for the defendants.”</p> <p>The court also instructed the jury to find for the defendants on the issues of fact; to which the plaintiff excepted; and a verdict and judgment having been rendered for the defendants, the plaintiff removed the cause to this court, and here assigned for error, inter alia, that the court below erred in giving judgment for the defendants on the demurrers.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was a judgment entered in favour of Abel Lukens against George.Baker and Mary L. Baker, his wife, late Mary Louisa Spooner, on a bond and warrant of attorney executed by Mary Louisa Spooner, before her marriage with George Baker, dated the 28th February 1858, and conditioned for the payment of $4500, with legal interest for the same-. With the warrant of attorney, the plaintiff filed a declaration, and also an affidavit, ■setting forth the subsequent marriage of the defendants.</p> <p>The defendants applied for and obtained a rule to show cause why the- judgment should not be stricken off; which was subsequently discharged, after argument, by the court below; whereupon, the defendants sued out this writ, and here assigned the same for error; and also that the warrant of attorney was sealed ■and delivered on a Sunday.</p>

This was an action of debt by the Commonwealth of Pennsylvania, for the use of C. Park, and others, against William H. Foster, and others, the sureties of Byron Kingsberry, deceased, who was the administrator of Simon Spalding, deceased, on the administration bond of the said Byron Kingsberry. Simon Spalding, an officer in the Revolutionary war, died in Bradford county, in the winter of 1814.

<p>The charter of a beneficial society granting the power to enact by-laws, must contain a restriction that they be consistent with the constitution and laws of the state and of the Union.</p> <p>The right of membership must be confined to citizens of the state; it cannot be extended to citizens of the United States.</p> <p>An article giving power to the society to expel any members who shall be “ guilty of actions which may injure the association,” will not be approved. ■</p> <p>The power of expulsion is quite proper in cases in which a member has been found guilty of some crime, on a trial in court.</p>

Appeal in Equity from the Common Pleas of Tioga county. This was a bill in equity by The Commonwealth of Pennsylvania, at the relation of the district attorney, against The Wellsboro’ and Tioga Plank-Road Company, and Edward Bayer, the owner thereof, for an injunction to restrain the collection of tolls on the said plank-road, where the same was not properly in order, or properly planked according to law.

This was an action of assumpsit by Jacob Houtz, surviving assignee of John Strimpfler (in trust for the benefit of creditors) for the use of John Manbeck, endorsee of James Betz, against William S. Breitenbach and John R. Breitenbach, on a parol promise, in consideration of an assignment to the defendants of John Strimpfler’s interest in the property of the firm of Strimpfler & Shoemaker, to pay the debts for which Strimpfler was liable as a member of the firm.

This was a foreign attachment in debt, by Thomas T. Hayes against William T. Gillespie, to which the sheriff returned that he had levied- the same upon certain lands of the defendant, and summoned John Gillespie, the tenant in possession, as garnishee. Judgment was entered by default, and the lands levied on were seized in execution and condemned.

<p>Certificate from the Court of Nisi Prius.</p> <p>This was an ejectment by Emma M. Kenyon against Mary Ashbridge, for a house and lot of ground, on the north side of Pine street, between Sixth and Seventh streets, in the city of Philadelphia.</p> <p>Both parties claimed title under Captain Henry Kenyon, who died seised of the premises, some time between the 12th August and 17th October 1833. The plaintiff claimed title as his daughter and heir at law; the defendant, under a will and codicil, alleged to have been executed by him, on the 7th and 12th August 1833, respectively, and which were admitted to probate on the 17th October 'in the same year. The defendant disputed the legitimacy of the plaintiff.</p> <p>About six months previously to his death, Captain Kenyon went to board with Mrs. Mary Jennings. Although apparently in good health, he frequently complained of headache, from a fall received on board of a vessel; and in a short time, a tumor commenced growing on his forehead. Dr. Thomas Harris, a surgeon in the United States navy, performed an operation for the removal of this tumor, and pronounced it to be “ a tumor on the membrane that surrounds the brain;” he found that it had originated on the dura mater, and by pressure caused an absorption of the bone; he laid open the scalp, and dissected the tumor from the dura mater. Captain Kenyon was very ill from the effects of the operation for some weeks.</p> <p>At this juncture, Mrs. Jennings, knowing that he had a sister (Mrs. Ashbridge, the defendant), named it to him, and asked to have her sent for. He refused to have her sent for, and told Mrs. Jennings if she did not want to have his displeasure, never to mention her name again. He said, she was no sister of his; that she had acted in such a manner that he did not wish to see her; that he never wished to see her, and that she should never be anything the better for him or his property.</p> <p>He had partially recovered, when, about three weeks after the operation, he fell in an apoplectic fit; from which time to his death, he remained speechless. After this, Mrs. Ashbridge, the defendant, was sent for; when she came, she was anxious to have a will made. Captain Kenyon appeared to be distressed at her presence. Mrs. Jennings informed her, the captain had made his will, or at least that he had told her so. The defendant was very anxious to find the will, but. Mrs. Jennings kept the keys, and would not allow her to have them. Mrs. Jennings testified, “ One day she told me, she had found the will in a book in the closet, where she little thought to find it; she had it in her bosom. I asked her to let me see it. She said, £ no, she would let no one see it.’ I asked her, who he had left his property to ? She said, ‘ not to them he ought to have left it to; and that she was going to destroy it.’ It was in her bosom, she said, and she was going to destroy it.” To another witness the defendant said, ££ I have found the will; I have got it in my bosom.”</p> <p>The defendant subsequently had the alleged will and codicil drawn up and executed, under which she claimed the property. She then obtained the testator’s keys from Mrs. Jennings, and shortly afterwards had him removed, with all his effects, to his house in Pine street, where he died.</p> <p>The plaintiff, then a little girl, visited her father during his sickness. He had frequently acknowledged her as his daughter; and spoken of her mother as his wife. There had been a separation between them; but he retained and supported this child. He said, that he had made his will, and left his property to his daughter ; but that in case of accident, he had named two of his nephews in England, for that his sister, or her children, should never have anything belonging to him.</p> <p>Oh the trial, the defendant excepted to the admission of evidence that Mrs. Jennings informed the defendant, that the captain had made his will, and her declaration that she had got possession of it, and intended to destroy it; and also to the admission in evidence of the declarations of Capt. Kenyon, that he had made his will in favour of his daughter.</p> <p>The court below (Thompson, J.), in answer to points presented by the plaintiff and defendant, instructed the jury as follows:—</p> <p>££ A will cannot be established by proving the declarations of the alleged testator that he had made a will, for this would have the effect of nullifying the statute, which requires it to he in writing, and signed by the testator, in the presence of two competent witnesses.</p> <p>“ In the case before you, we instruct you that, if you believe the witnesses, Mrs. Jennings and Mrs. Atkinson, that Captain Kenyon declared to them that he had made his will, and if this declaration was made known to Mrs. Ashbridge, and she afterwards declared she had found it, stating the place where she found it, and declared she had it then in her bosom, and refused to show it, declaring her intention to destroy it, or burn it; that the property was not left ‘ to them that he ought to have left it toand that the will has never since been seen or produced; you may presume, from these facts, that Captain Kenyon had made a legal will, and you may presume that she destroyed it in accordance with her declared intent, and that it devised the property in question contrary to her interests. The presumption in odium spoliatoris may arise against her to this extent, in the absence of evidence to explain her conduct, and her neglect or refusal to produce the will. The presumption rests upon the philosophy of actuating or impelling motives, and attributes self-interest as the motive for such an act. These declarations of the testator, and admissions of the existence and possession of the will by the defendant, if you believe the testimony, prove the existence of the will; but cannot be set up to enable the plaintiff to recover upon it, for its contents are no otherwise proved than by the declarations of the testator, and this is insufficient; the contents should have been shown by other testimony. The plaintiff cannot recover on it. But the presumption arising from the fact of the destruction of the will is evidence, to be considered in connection with acts of the defendant in the alleged procurement of the will to be made, under which she claims to hold the property. You will consider these acts, and the presumptions arising from them, when you come to consider the validity of that will in connection with the other evidence in the case on that subject.”</p> <p>To this charge the defendant excepted. The jury found in favour of the plaintiff, as follows: “ That Emma M. Kenyon is the heir at law, and that Captain Kenyon was not compos mentis, when he made his will dated. August 7th 1833, and codicil dated August 12th 1833.” Judgment having been entered on the verdict, the defendant removed the cause to this court, and here assigned for error: 1. The admission of the evidence contained in her bill of exceptions: 2. The charge of the court.</p>

<p>Three years prior to a sheriff’s sale of a tenant’s goods found on the demised .premises, the tenant incurred a forfeiture of his lease, six months’ rent being then in arrear: Held, that the landlord was entitled to be paid the rent in arrear, at the time the forfeiture was incurred, out of the proceeds of sale.</p> <p>The landlord’s right to be paid out of the proceeds of sale depends^ on his ■power to distrain on the goods sold; and a landlord having power to distrain, .after the determination of the term, he is entitled to payment out of the proceeds of a sheriff’s sale of goods found on the demised premises, under an execution against the lessee.</p> <p>The landlord’s right to distrain after the termination of the term, is without limitation as to time; the statute gives him this right, wherever the rent .is in arrear, and he retains theAitle.</p>

<p>A sheriff having two executions in his hands, sold the defendant’s personal property for a sum that was insufficient to satisfy the first writ, and made a levy on the defendant’s real estate for the balance; subsequently, the defendant gave to the sheriff a sum of money, with directions to pay it to the creditor in the junior execution: Held, that, under the circumstances, the sheriff could not make a levy on the money so paid to him, under the first execution; and that he was justified in returning that it was made on the second writ, and paying it to the plaintiffs therein.</p> <p>A sheriff having levied on the defendant’s real estate, cannot, whilst that levy remains undisposed of, seize in execution under the same writ, a sum of money belonging to the defendant, which is voluntarily paid to him, for another creditor.</p> <p>It seems, that a sheriff having two executions against the same defendant, may receive from him a sum of money, to be paid to the holder of the junior execution; and that he is not bound to levy on such money, in his own hands, by virtue of the first writ.</p>

This was an appeal by Henry Zeigler from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate… Held: that while such an agreement might be in some sense legally binding on those who make it, it will not continue the lien on the land as against a subsequent purchaser or encumbrancer, even with notice: ‘ one who buys of the sheriff’s vendee, or enters a judgment against him,’ says Chief Justice Black, ‘ cannot be affected by such an…

<p>Error to the Common Pleas of Schuylkill county.</p> <p>This was an ejectment by the President and Directors of the Williams Valley Eailroad Company, against John Schall and Andrew Jones, for a tract of 144 acres of land in Lower Mahantongo township.</p> <p>The facts of the case are fully stated in the following charge to the jury, delivered in the court below by Graham, P. J.:—</p> <p>“ The plaintiff in this ejectment claims to recover 144 acres and allowance, situate in Lower Mahantongo township, Schuylkill county. The land in controversy was granted by the Commonwealth to John Lesher, by warrant dated Bd November 1784, for 170 acres, including an improvement on thé Broad Top Mountain. Upon this warrant, a survey of 144 acres was made, the 5th of May 1785.</p> <p>“ On the 16th March 1797, John Lesher, the warrantee, conveyed to Ludwig Schwartz, to whom a patent issued the. 25th February 1803. Ludwig Schwartz conveyed to John Snavely by deed of 31st March 1838; and in September 1838, Snavely conveyed to Eobert S. Flemming, Leander N. Ott, James Flemming, Joseph W. Cake, and W. F. Fahnestock. These grantees of Mr. Suavely, by their several deeds of different dates, from December 1839 to January 1840, conveyed to the plaintiffs in this action.</p> <p>“ From the foregoing recital of the plaintiffs’ title, you will see they have exhibited an unbroken chain from the Commonwealth, and unless the defendants have shown a better title, one that will defeat the plaintiffs’, the plaintiffs ought to recover.</p> <p>“ The defendants have shown no title from the Commonwealth, nor any conveyance of the title ‘ acquired by the Lesher warrant and survey, but claim title under the statute of limitations, by virtue of actual possession, by residence, and clearing and cultivation of the land, for a period of twenty-one years, by themselves and those under whom they claim. They have shown a deed from John Myer to Christian Bartche, for 400 acres, dated 3d August 1801, surveyed to John Witman, on warrant dated 1st July 1793.</p> <p>“ This Witman tract lies near to the Lesher survey, and, although there is no evidence of the purchase of the Lesher tract by Bartche, the evidence tends strongly to show he claimed it in some way, either by colour of title, or as an intruder. He put his parents upon this improvement to live; and, when his property was afterr wards sold by the sheriff to William Green, and conveyed by deed of 22d September 1806, it is described as 700 acres. On the 24th February 1807, Green contracted with Joseph Keffer for the sale of the 700 acres, which contract was executed by deed dated 24th October 1810, endorsed on the sheriff’s deed to Green. That Keffer then considered the Lesher tract was a part of this purchase of 700 acres, we think is apparent, from the facts proved by his son, Daniel Keffer, who says, his father claimed it until it was sold, and moved upon it and cleared land, and exercised the ordinary acts of ownership, and that he claimed 700 acres. The land that the saw-mill was on, the Lesher tract, he called 300 acres, and the tavern tract 400.</p> <p>“ In 1818, this Lesher tract, as defendants allege, was levied on by the sheriff, on a warrant issued by the county commissioners, against Joseph Keffer, who was a defaulter as tax collector. It is described as 200 acres, more or less, adjoining lands of Conrad Fager, Leonard Rishel, and others. It was bought by John Hammer, county treasurer, and conveyed by him to the county commissioners in 1819. In 1830, the county commissioners conveyed to Benjamin Becker, Charles Frailey, and John Schall. In 1834, Mr. Frailey assigned his interest to Schall, and in 1848 Schall assigned an undivided fourth to Andrew J. Jones.</p> <p>“ To acquire title under the statute of limitations, the possession must be actual, continued, visible, notorious, distinct and hostile, for a period of twenty-one years, by actual residence upon, or cultivation of the land; and, to include wood-land, there must be boundaries marked and designated by the claimant, or the tract must have known boundaries, and the claim be co-extensive with such known and marked boundaries. The possession must be such as to evidence a claim of ownership to all the world by such unequivocal acts of residence or cultivation as can be seen and known to all observers.</p> <p>“ Although the possession must be continued for a period of twenty-one years to acquire title under the statute, it is not necessary that there should be a tenant living upon the land, or actual cultivation of it every year. When the possession is by tenants, and not by the claimant, a tenant may move unexpectedly, and it may be some time before another can be procured; and good husbandry requires that the soil should have occasional annual rests.</p> <p>“ When, therefore, there is an interruption of the tenancy from this cause, which is not permitted to continue longer than another tenant can be procured, and the cultivation of the land is not suspended further than the practice of proper husbandry would sanction, this would not prevent the statute from running in favour of the claimant. It is not necessary that there should be possession by a personal residence on the land, and by cultivation of the soil; either residence or cultivation, is all the law requires to acquire title under the statute. There is also a distinction as to the extent.of title acquired, dependent upon the mode in which possession is taken.</p> <p>“ Where an entry is made upon an appropriated tract by an intruder, his title is limited to his actual occupancy by residence and cultivation, unless he defines his boundaries; but where the entry is upon a tract of known and designated boundaries by colour of title, the possession is considered co-extensive with the lines by which the tract is designated. An entry is under colour of title when it is made under a purchase from a former claimant by possession, or under a defective title. ■ You will apply these general principles of law to the evidence in this case.</p> <p>“ The evidence shows that Joseph Keffer contracted with Green for the purchase of the 700 acres which Green had purchased as Bartche’s property in 1807, and went into_ possession, the same year, of the tavern tract. Soon after this, according to the evidence of the plaintiffs’ witness, a man named Carl went into the house on the Lesher tract, as the tenant of Keffer. Peter Zimmerman says he lived there in the years 1810,1811, and 1812; and there is evidence of a survey of the Lesher tract at the-instance of Keffer in 1810. We do not recollect any other evidence of a tenant upon the Lesher tract until 1815, when Keffer removed himself to the Lesher tract; but. there is evidence of Keffer working the saw-mill and sawing lumber prior to 1815.</p> <p>“ Keffer continued on the Lesher tract from 1815 to 1824, and during that time cleared land, and cultivated the cleared land, used the saw-mill, and exercised the ordinary acts of ownership.</p> <p>“ In 1819, the Lesher tract, as defendants allege, was sold by the county commissioners as the property of Keffer, and the title vested in the county commissioners, by deed from the county treasurer, who purchased it. There is evidence of payment of rent by Keffer to the county commissioners in 1820, 1821, 1825, 1827, and 1828, and of payment of rent by a man named Speadzer to the commissioners, in the years 1825 and 1827. The evidence of plaintiff shows that Speadzer occupied this house for two years — from 1824 to 1826. From 1826 to 1833, there is a conflict in the evidence as to the occupancy of this Lesher property; the evidence on part of defendants, showing, as they allege, an occupancy during those years by the tenants of the commissioners, or Keffer, who, it is alleged, rented from the commissioners, and Doctor Becker and others, who purchased in 1830; while the evidence of the plaintiffs, as they allege, shows a period of some years — between 1827 and 1833 — that the possession was abandoned, and no tenant upon the land, or cultivation of the fields. This is a fact which we refer to you.</p> <p>“ Was the possession continued from 1808 or 1810 to 1833, or even to 1832, without abandonment or interruption by those claiming the land, except short intervals arising from unavoidable or necessary causes, as to the occupancy of the house or cultivation of the land ? or from 1807 or 1808 to 1829 ? (for some of the witnesses speak of Carl being there as early as Í807 or 1808)— this would give title to defendants, under the statute of limitations, and defeat plaintiffs’ recovery, if this were the whole case. But if the possession was abandoned without unavoidable or necessary cause, arising from difficulty in procuring a tenant for a short ■ time, or permitting the land to have an occasional rest, this would defeat the defendants’ title under the statute.</p> <p>“But the plaintiffs contend that, even if the defendants’ title was perfected by possession up till Í833, the possession was then abandoned, and that the plaintiffs purchased under circumstances that will prevent the defendants using the title they had acquired by their possession prior to 1833, to defeat the plaintiffs’ recovery. This position of the plaintiffs arises under the following facts: — A witness named George Daubert says, he moved into the house on the Lesher tract, and lived there about eight years ; that no one lived there when he moved in; that the house had not been long empty; William Palm lived there before he moved in, and George Bretz and his father lived on the place before Palm; that there was not more than four acres fenced; the fences were bad; that a good deal had been cleared where the fences were burnt; that he moved there by his own consent; no one lived there, and no one came to ask taxes or anything; that Col. Cake came there and asked him how he got there; and witness told him he went there, no one living there, and he did not know who owned it; that he found it empty, and moved in on his own hook; that after he had lived on the place three or four years, he took a lease from Col. Cake, and was to pay $1 and the taxes.</p> <p>“ Col. Cake proves that George Daubert was on the land in the fall of 1839; that it then belonged to The Williams Valley Railroad Company, of which Col. Cake was President, and he leased the land to Daubert.</p> <p>“ John Snavely says he bought the land from Samuel Schwartz for $200; that about the time he bought, Daubert was living there, and he thinks, before he bought, he asked Daubert how' he came there, and Daubert said he just moved there; that nobody told him, and no one lived in it. The witness further says, that at the time he bought, he had no notice of any adverse title, and no knowledge of any, to the best of his recollection.</p> <p>“ Under these circumstances, the plaintiffs claim to be bond fide ■ purchasers, without notice, and that they cannot be affected by defendants’ title under the' statute, even if it had been perfected prior to the plaintiffs’ purchase. That by permitting an intruder to enter for a year, or a month, for we do not see how time can vary the principle contended for, the labour and improvements of twenty years may be swept away by an ancient title, which has been dormant for near half a century. To establish such a principle might be productive of great injury.</p> <p>“ But there is a principle of law, based upon the soundest dictates of justice and equity, which we consider applicable to this case. We must consider both parties here bond fide purchasers for value. Both, doubtless, paid their money for what they considered a good title, and a loss must be sustained by one of the two innocent parties.</p> <p>“ In such cases, the law requires that the party whose negligence, or want of ordinary caution and prudence, has most contributed to the difficulty, shall bear the loss. Which party has acted most imprudently in this case ? The defendants, who, after they had acquired a perfect and undoubted title, did not keep, with watchful care, a tenant in their house, to notify all inquirers that they owned the property, and thus keep out intruders who could give no information as to the claimants — or the purchaser, Mr. Snavely, who says he asked Daubert how he got there, and, upon being told that he went there without permission from any one, went away and made the purchase ?</p> <p>“ Had Snavely inquired, Daubert could have told him that Palm, a former occupant, had left about six months before Daubert went in, and that George Bretz and his father lived in the house before Palm, for.Daubert swears to the facts; and had Snavely examined the premises for evidence of occupancy, he must have discovered unmistakeable marks of former possession-. both ancient and recent, for Daubert says at that time about four acres were under fence, and the fence had been burnt off a part; and Mr. Lewis, who was on the premises last week, says there were old fruit trees around the house, and others apparently about twenty-five years' old, which, in 1837, when Snavely purchased, must have been planted but a few years. Under these circumstances, ought a man of ordinary caution and prudence to make further inquiry, and would such inquiry have resulted in ascertaining the nature and extent of the possession prior to Daubert’s entry, and under whom it was occupied ?</p> <p>“ Should you be of opinion that ordinary prudence and care required further inquiry by Snavely before he purchased, which would have resulted in a knowledge of the plaintiffs’ title, then he is not in the position of a purchaser without notice, nor entitled to protection from the consequences of his own rashness and imprudence. We see nothing in the evidence to give the plaintiffs a stronger equity than Snavely. They purchased from him about eighteen months after his purchase from Schwartz, and with the same means of obtaining information that Snavely had.</p> <p>“ Title by the statute of limitations is peculiar in some respects. Although it is as perfect and absolute as a legal conveyance, it is not susceptible of being recorded as a deed. Its record is upon the ground, and in the knowledge and recollection of those living in the vicinity. It would be almost impracticable for a title to be acquired by twenty-one years’ actual possession, unless in a very obscure and sparsely settled portion of country, without such occupancy being generally known to those residing in the vicinity of the land; and after a title 'has been thus acquired, it is not necessary that an unintermitted actual possession should be kept, if the claimant leaves upon the ground unmistakeable marks of recent and long-continued possession, which may be seen and read by all honest and anxious inquirers after the title, and which are sufficient to induce inquiry which would result in ascertaining the truth. •</p> <p>“ Even in the case of an unrecorded deed, when the purchaser is guilty of culpable neglect, in not recording his deed and not taking possession, when there is enough known to the second purchaser to put him upon inquiry, this will defeat his title. In Boggs v. Yarner, 6 W. & S. 472, which was the case of an unrecorded deed, Judge Rogers, in delivering the opinion of the court, says: ‘ The evidence of notice should be of such a nature as to convince every reasonable and dispassionate mind that the subsequent vendee knew of the existence of a prior and superior title, or that he ought to have known, inasmuch as there was enough known to him to put him upon inquiry, which the law deems equivalent to actual notice.”</p> <p>“You will then determine whether, in 1837, when this property was purchased by Snavely, there were such marks of recent and long-continued possession upon the ground as ought to have induced further inquiry by the purchaser. If there were, this, in law, is considered equivalent to actual notice, and would defeat the plaintiffs’ recovery, if you believe that, prior to Snavely’s purchase, the defendants had perfected their title by the statute of limitations.</p> <p>“ On the contrary, if you are not satisfied that Snavely acted rashly and imprudently, in purchasing without further inquiry in reference to the occupancy and title of this property, under all the circumstances of this case, but his conduct was that of a man of ordinary prudence and caution, and the defendants are the more culpable party, in permitting an intruder 'to enter upon their land, then the plaintiffs would be in the position of purchasers without notice, and their title would be superior to the defendants’.”</p> <p>To this charge the defendants excepted; and a verdict and judgment having been rendered for the plaintiffs, the defendants removed the cause to this court, and here assigned the same for error. The following opinion was delivered in the court below, on a motion for a new trial, by Graham, P. J.:—</p> <p>“ The defendants ask for a new trial on the ground of misdirection'by the court to the jury, and because the verdict is contrary to the evidence. The legal question presented is upon the nature of the title acquired under the statute of limitations. The' defendants contend that when perfected by twenty-one years’ possession, and that nothing short of twenty-one years’ adverse possession will defeat it.</p> <p>“ The question presented in this case, is novel, and is worthy of careful examination. On the trial, we submitted the question of negligence, to the jury. That it was a question of loss between two innocent parties, and the law required that the party whose negligence or want of ordinary caution and prudence has most contributed to the difficulty, should bear the loss. We submitted to them to find whether the defendants, by negligence to keep up their notice of title by possession for seven or eight, years, and permitted George Daubert, an intruder, to enter upon and occupy the premises, who had no claim of title, and could give no notice of claim to the purchaser of the legal title, under a warrant, survey, and patent from the Commonwealth; or Mr. Snavely the purchaser, by omitting to make further inquiry of Daubert and others, with the evidence which the premises afforded of long-continued and recent possession — had been guilty of the greater negligence. Of this.instruction the defendants complain, and that we did not give to the jury a positive direction, that if the title of defendants was perfected by twenty-one years’ possession, prior to Daubert’s entry, the defendants were entitled to their verdict.</p> <p>“After a more careful examination of the law,, applicable to this case, than we had an opportunity of making during the progress of the trial, we think if there was an error committed, it was in favour of and not against the defendants.</p> <p>“ It is conceded, that title acquired under the statute of limitations, is as valid and effectual as title acquired in any other'mode; but it must also be conceded, that such title has no greater validity or sanctity than any other legal title. We cannot therefore conjecture any reason why such negligence as would destroy a good legal title acquired in one mode, should not destroy a similar title acquired in another mode, in favour of a bond fide purchaser for value. It is not the validity of the respective titles of the parties that is the subject of controversy. We may assume, either would be good in the absence of the other; but when they come in conflict, which shall prevail ? If one party, by negligence, has permitted another to acquire a title perfectly good upon its face, without affording him the means of notice of a superior title, such neglect, by reason of the injury which would be inflicted upon the purchaser, will enable him to recover against a title which would have been conclusive against his grantors. Thus a second purchaser will prevail against an older and better title held by unrecorded deed, and this by reason of the neglect to give notice, such as the law requires of the older title. But possession by the first purchaser, is notice when the deed is not recorded. A purchaser who holds by deed, has two ways of protecting his title — by possession or recording his deed. A claimant under the statute has but one mode of giving notice — that of possession. He has no deed to record; but because he has but one mode and not two, as the purchaser by deed has, is he to be excused from giving notice by continued possession, and to be permitted to let an intruder enter and occupy for six or seven years, who can give no information to an inquirer who is about to purchase a title by warrant, survey, and patent ?</p> <p>“ It is true, cases may be imagined, where the rule of continued possession, after title acquired under the statute, to protect against title by patent from the Commonwealth, might operate harshly, as the case put by counsel, where the land had become valuable by labour, clearing, and improvements of twenty-one years. The owner may live a distance, and occupy by his tenant. The tenant moves unexpectedly, without notice to his landlord — an intruder enters who has no knowledge of any title or claimant, and a speculator, after inquiry of the person in possession, buys up a good legal title, before the proper owner has any knowledge of the removal of his tenant. This is putting an extreme ease, and extreme cases are not always the best way of illustrating the correctness of general principles. Were we to attempt to bend and accommodate legal rules to meet the real or supposed hardship of each particular case, the only tenure by which we would hold our acquisitions would be prescribed by the opinions of the judges, for the time being, impossible to be known until delivered, in place of a symmetrical system of principles and rules, built up by the labours of the learned through a series of ages.1</p> <p>“ But a fair set-off to this argument is the case propounded by plaintiffs’ counsel. An honest labourer builds his cabin and clears a potato patch on an appropriated tract, and claims to the extent of the survey; the land is mountainous, sterile, and unproductive, and in place of attempting to clear and cultivate a farm, and erect comfortable buildings, he wisely concludes to erect a little sawmill, and by sawing the sparsely scattered timber upon the sterile soil, which has only afforded sufficient nourishment to raise an occasional sapling to the dignity of a saw-log, he succeeds in filling the mouths and partially covering the backs of his wife and children for twenty-one years. But the timber is exhausted; the saw-mill becomes useless, and starvation is at his door. He sells his title — or the sheriff sells-it for him — for a mere trifle, to a speculator, who shrewdly conjectures there is more value under than upon the surface. The purchaser has a perfectly legal and indefeasible title, which can only be lost by adverse possession for twenty-one years, say the counsel for the defendants, and he therefore wisely determines to abandon the trouble of keeping the cabin tenanted, which is too dilapidated to be occupied and rented to keep up the possession, to be replaced by a new one. This useless expenditure he avoids hy permitting it to go to decay, which he may safely do, if the argument of defendants’ counsel is sound, that his title is perfect and cannot be impaired for twenty-one years. He lives in Pottsville or Philadelphia, and pays his taxes promptly, as most speculators are careful to do; and this, he is advised, is all that is required to protect his title from the cormorant maws of his brother speculators. Eighteen years roll around; his neighbour hears of untold millions realized by investments in Schuylkill county coal lands; a title, perfect on its face, is offered to him; although eager and anxious, he is cautious and prudent; he procures a surveyor, goes upon the ground and discovers the land; careful examination is made, to ascertain if the title which he is about to purchase has been impaired by possession. But the cabin and fences have mouldered away, the sawmill disappeared, and the cleared land is covered with timber, the growth of eighteen years. No vestige of the marks of previous occupancy can be discovered. He makes the purchase, builds his railroad, sinks his shaft, erects his engine, expends every dollar of his means upon this mine of untold wealth, and just as he is about to realize a return for his expenditures, his neighbour brings an ejectment upon the title of the former occupant, long since obliterated from notice, and must necessarily recover, if the position assumed by defendants’ counsel is tenable; that a title once acquired under the statute can only be defeated by twenty-one years’ adverse possession. These illustrations we think sufficient to dispose of the argument attempted to be drawn from the hardship of extreme cases on either side. If established and known legal principles are to be modified to meet extreme eases, it is time enough to commence the dangerous work when cases arise requiring such remedy. We . do not consider the present case requires a departure from or modification of settled rules of property. Both parties doubtless purchased honestly, believing they obtained good title, and we are willing to place them in a' position in which they have placed each other — of speculators buying a very valuable tract of coal land for a very small consideration. Neither party has contributed by labour or expenditures, to increase its value. Their merits are equal, and the land must be given to the party to whom the law gives the better title. In Woods v. Earmere, 7 Watts 384, Chief Justice Gtbson says, that possession of a tenant is notice of his actual interest, whether as a lessee or purchaser, ‘ and where the occupant has not an opportunity to register his deed, or a deed to register, nothing short of it couldprotect him.’ The possession of an intruder is therefore no notice of the title of any one; and that a title of which no notice is given either by registry or possession, is Valueless against a subsequent purchaser, is ruled in many cases.</p> <p>“ In Boggs v. Varner, 6 W. $ 8. 469, Boggs held by an unrecorded deed, a house and lot in Pittsburgh. He and those claiming under him occupied the house for many years. Varner lived on what was formerly part of the same lot, and was in habits of daily intercourse with the family of Boggs. In 1825, the house was burned, and the house was unoccupied until 1828, when Varner purchased the same title under which Boggs held by unrecorded deed. And in the chain of title by which Varner held the adjoining lot, the lot of Boggs was referred to as adjoining. Under this circumstance, although Varner had express knowledge of Boggs occupying the lot until the house was consumed by fire, a recovery by Boggs on his unrecorded deed was defeated.</p> <p>“The case of Wright v. Wood, 11 Harris 130, is to the same effect. The defendant claimed under an unrecorded deed from Jane Vanschuyver. The plaintiff under a deed from the heirs at law of the defendant’s grantor. The land was occupied for many years by those claiming-under the unrecorded deed. The Vanschuyvérs had not been in possession from 1821 till their conveyance to Wood, the plaintiff, in 1847, a period of twenty-six years. The administrators of Wright, who held under the unrecorded deed, sold to Osmond by order of the Orphans’ Court, which was confirmed in March 1838. Osmond took possession 1st April 1838, paid $1000, and continued in possession until 31st March 1842. In consequence of some difficulty between Osmond’s and Wright’s administrators, Osmond refused to comply with his contract, and removed from the- premises. On the 1st April 1842, Iléllings took possession, without. leave from any one, as an intruder, and remained till March 1847. The heirs of Jane Vanschuyver conveyed to Wood, in December 1846 and January 1847, and upon this conveyance Wood recovered against those claiming under the unrecorded deed, and possessing under it.for twenty-six years. It- appeared, also, that Hellings, the intruder, before he took possession, applied to the administrators of Wright for permission to do so, and was referred hy them to Osmond. From this the inference would he irresistible, that Hellings had»a knowledge of the difficulty between Wright’s administrators and Osmond, the purchaser, and that proper inquiry by Wood of Helllings, the occupant, would have developed a,full knowledge of the title under the unrecorded deed. But, in answer to this, the court say: ‘The possession of one, either in person or by his tenant, is notice of his unrecorded title; but the possession of an intruder cannot he held to be notice of the title of a stranger. The evidence was clear that the possession of Hellings had no connection whatever with the title under which defendant claimed. It is barely possible that an inquiry of Hellings would have elicited some information in regard to the claim of Wright. A mere possibility will not suffice to obviate a difficulty occasioned by the neglect to comply with the recording acts.’</p> <p>“ The cases we have cited, clearly establish the principle that occupancy by the claimant or his tenant is notice of his title, but the occupancy of an intruder, with or without inquiry of him, is no notice. A purchaser is not required to make inquiry of the occupant, but then he purchases at his peril, and takes it with notice of the title under which the occupant holds.' If he holds under an unrecorded deed, the purchaser is affected with notice. If the occupant enters and holds as an intruder, the purchaser takes a title, paramount to any title of which he has no means of obtaining notice. If we are correct, the defendants cannot complain. The instruction to the jury was more favourable to them then the law justified, in submitting whether the plaintiffs or defendants were more culpable, — the former in not making further inquiry, or the latter, in permitting an intruder to occupy, for six or seven years, when possession was the only notice of title they could give. Suavely did more than the law required, in inquiring of Daubert, the occupant, how he held the premises. He would, under the circumstances, have been protected without any such inquiry. Col. Cake and others, in their purchase from Snavely, in September 1838, are also purchasers without notice, for Daubert was still in possession as an intruder, and took a lease from Col. Cake in the fall of’1839. If notice of title is required when it can he given, the law and the weight of evidence is with the plaintiffs. And why a title under the statute of limitations should not require possession to protect it equally with an unrecorded deed, we can discover no reason. Suppose an unregistered deed is lost or destroyed, can it he that, because the claimant has but one way of giving notice, and not two, he will be excused from taking and continuing possession to protect his title from subsequent purchasers ? • The law abhors secret trusts and titles, and will not sustain them to the prejudice of the innocent, who would thereby be subjected to loss by the negligence of a party who has omitted to give such notice as the nature of his title will permit.</p> <p>“ Should it be contended, that this case is different from the cases cited of a subsequent purchaser against a prior unrecorded deed, when both claim through the same title, because in the present case, the parties'claim through separate and distinct titles, the answer is that such distinction does not exist. To acquire title under the statute, title must he shown out of the Commonwealth. Without showing title in some one, the defendants have no case. But title is shown in John Lesher, the warrantee, by warrant and survey and patent to Ludwig Schwartz, the vendee of Lesher, in 1803. Both parties therefore necessarily claim through Lesher and Schwartz. If the defendants claimed by unrecorded deed from Lesher or Schwartz, the subsequent deed to Snavely must defeat their title. Why, if the law requires them to keep up notice of a title by deed, shall they be permitted to abandon their .evidence of title by possession, the moment such title is required ? A purchaser cannot put his deed in his desk and remain passive for twenty-one years, and protect his title by the payment of taxes alone. And we can recur to no principle of' law or equity, that permits all notice of title to be obliterated and abandoned, and then such title to be reasserted at the expiration of any period short of twenty-one years, against a bond fide purchaser for value, without notice, or the means of obtaining it. For the reasons stated, we think the verdict is in accordance with the law and evidence of the case, and we will not disturb it.</p> <p>“ The motion for a new trial is overruled, and judgment entered upon the verdict.”</p>

<p>A party assigned Ms property to a trustee, in trust, first for the payment of his debts and the expenses of the trust; then, to invest one-third of the surplus, and pay the interest thereof to his wife for life; to pay the interest of the remaining two-thirds to himself during his life; if his wife should survive him, at Ms decease, to pay the said two-thirds to his heirs, or devisees; but if his wife should not survive him, the whole surplus to remain in trust, the interest to be paid to himself annually, and at his decease, the principal sum to whomsoever he should bequeath it, or in default of such bequest to his heirs in equal shares; the grantor subsequently revoked the trúst except as to the payment of debts and the provision for his wife: Held, that the grantor took an absolute interest in the two-thirds of the surplus of the assigned estate.- ■</p>

This was an appeal by George McAuley from the decree of the court below, distributing the proceeds of a sheriff’s sale of his real estate. On the 12th July 1855, George McAuley mortgaged the premises out of which the fund was raised, to John Dornan, to secure the payment of his bond for $200. At December Term 1857, judgment was entered on the bond accompanying this mortgage; and a fieri facias was issued thereon.

This was an attachment execution, issued on a judgment in favour of Hibbert Chalfant against John Odgers, and served on Roderick R. Williams and others, trading as Edward Davis & Co., as garnishees.

This was an action of assumpsit by Thomas B. Cannon and John H. Cannon, executors of Greorge P. Sites, deceased, against Edmund Steelman, on a check for $225, dated the 14th April 1858, drawn by the defendant, on the Manufacturers’ and Mechanics’ Bank, to the order of the plaintiffs’ testator.

<p>A will was executed by the testator and attested by the subscribing witnesses, at the same time, and in the presence of each other, but the subscribing witnesses wrote their names first, and the will was then signed by the testator: Held, that this was a sufficient execution and attestation of the will.</p> <p>The English statute of wills is more exacting in its requirements than ours; and therefore, the decisions under it are not of authority in construing our statute.</p>

This was an action of scire facias by The Accommodation Saving Fund and Loan Association against Charles W. Schober, and terre tenants, upon a mortgage dated the 11th October 1855, conditioned for the payment of $2600 within one year from the date thereof, together with lawful interest for the same, payable monthly, on the first Thursday of each • and every month thereafter ; and also for the payment of the sum of $26, on the fipst Thursday of each and every month…

Appeal in Equity from the Common Pleas of Philadelphia. This was a bill in equity by John R. Sower against The City of Philadelphia, for an injunction to restrain the defendants from opening Wilson street, from Haines street to Mill street, in the twenty-second ward of the city of Philadelphia, through the lands of the complainant, until the damages sustained by him, by reason of the opening of the said street, should be paid or secured to be paid according to law.

This was an action of trespass by Adaline B. Morley, by her next friend, Nelson P. Bosworth, against Ranson W. Coolbaugh and George Coolbaugh, to recover damages for an assault and battery.

This was an action of replevin by Francis K. Shipper, Abraham Detwiler, and Isaac Detwiler, trading as Shipper & Detwiler, against Robert R. Decan, master of the ship Westmoreland, for 652 bushels of white wheat.

Appeal in Equity from the Common Pleas of Philadelphia. This was a hill in equity by Catharine Berryhill against Elizabeth Hauptman, administratrix of John Hauptman, deceased, who was the trustee for the complainant, under the will of her father John Hauptman, Sr., for an account of the trust estate. The complainant died during the pendency of the suit, and it was revived by Catharine Ann Irwin, her administratrix.

This was an action on assumpsit by Reeves, Buck k Co. against Thomas Baumgardner, as endorser of two promissory notes, of which the following are copies:— Philadelphia, December 15th 1855. $3146.91. Twelve months after date, I promise to pay to the order of myself, thirty-one hundred and forty-six dollars and ninety-one cents, without defalcation, value received. William L. Heleenstein. (Endorsed), William L. Heleenstein, Thomas Baumgardner, David Longenecker.

Error, to the District Court of Philadelphia. This was an action of assumpsit by Teresa Clark against Ann Maguire, administratrix of John Maguire, deceased, on two due-bills of the defendant’s intestate in favour of- the plaintiff, one for $423, and the other for $1300, both dated the 1st July 1841. The defendant pleaded non assumpsit, payment with leave, &c., and the statute of limitations.

<p>To enable a married woman to acquire and hold property against the creditors of her husband, she must make it clearly appear, that the means of acquisition were her own, independently of her husband.</p>

This was a quo warranto, at the relation of Harrison Ross against Ezra Baxter, calling upon him to show cause by what authority he claimed to exercise the office of commissioner of roads and highways, in the township of Granville, in Bedford county.

Error, to the Common Pleas of Luzerne county. This was a scire facias on a mortgage by The North Pennsylvania Coal Company against James Stevens, returnable to the second return day of the term. The writ was returned nihil as to the defendant; but George W. Keyser appeared and was admitted to take defence as terre tenant.

On the 8d December 1855, the petition of citizens of the townships of Canton, Troy, Granville, and Armenia, was presented to the court below, praying for the- erection of a new township out of parts thereof, to be called Alba. Commissioners were appointed, who reported in favour of the erection of the new township; but on exceptions being filed, the court granted a review, and appointed new commissioners.

This was an action of debt by Newton P. Fassett, executor of Samuel Rexford, deceased, to recover a balance alleged to be due-on three promissory notes made by the defendant in favour of the-plaintiff’s testator.

Appeal in Equity from the Court of Nisi Prius. This was a bill in equity by Robert Patterson and others, creditors of the Conestoga Steam Mills, a manufacturing company, incorporated under the act of 17th April 1849, against James B. Lane and others, stockholders in the said company, to render them personally liable for the debts of the company, on the ground that the capital stock of $500,000 was not actually paid as stated in the certificate filed in the office of the…

This was a scire facias by John W. Brackney against David L. JMeeker, reciting a recognisance of bail for an appeal from the judgment of a justice of the peace. The defendant pleaded nul tiel record.

This was an amicable action of debt by The City of Philadelphia against James Hunt, wherein the parties agreed upon the following case stated:— James Hunt, defendant, has received from the state authority a license to act as auctioneer, under the first section of the Act of April 8th 1842, entitled “ A further supplement to the several acts relating to auctions and auctioneers, and for other purposes.” According to the custom of auctioneers, he advances money on goods, and…

On the 7th August 1858, the petition of Jacob Bean and other inhabitants of the township of Upper Saueon was presented to the court below, for a public road, “beginning at a public road leading from Locust Valley to Allentown, at a certain point in said road, between the lines of lands of John Newcomer and A. Witman, and Richard Clewell’s dwelling-house, thence by the nearest and best route, until it intersects a public road leading from the former-mentioned road to…

This was an action of covenant by Simon Brolaskey against the Hope Mutual Insurance Company of Philadelphia, upon a policy of insurance against fire, issued by the defendants on the 19th June 1856, whereby they insured the plaintiff, for the term of one year, against loss or damage by fire, to the extent of $3500, on a three-storied frame building, known as the Kursaal, on Cape Island, Cape May county, New Jersey.

Error, to the Common Pleas of Chester county. This was an action on the case by The Burgesses and Inhabitants of the Borough of West Chester against William Apple and Gideon Miles, to recover the sum of $75 and costs, which one Davis Bishop had recovered against the corporation for the wrongful act of the defendants.

This was an action of covenant by Ezekiel W. Harlan and Robert Henderson against The Lehigh Opal and Navigation Company, upon a covenant alleged to be contained in a coal lease from the defendants to the plaintiffs, that the places therein designated were veins of stone coal. The breach alleged was, that the supposed mines were not coal-mines, and did not contain stone coal, contrary to the tenor and effect of the defendant’s covenant.

<p>Appeal from the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by John EL Irwin and others, residuary legatees of John P. D. Muhlenberg, deceased, from the decree of the court below, upon the accounts of Elhanan W. Keyser, one of the executors of the said John P. D. Muhlenberg.</p> <p>John P. D. Muhlenberg, by his will, dated the 11th December 1848, appointed Elhanan W. ICeyser and Daniel L. Woods, his executors, and gave them power to sell and dispose of his real estate. Daniel L. Woods had acted as the testator’s agent, during his lifetime, in the collection of the rents of his real estate.</p> <p>After the death of Muhlenberg, Mr. Woods continued to collect the rents of the estate, and deposited them in bank, to the joint credit of the executors; and when payments were made, it was by their joint check.</p> <p>This course was pursued until some time in 1852, when Woods ceased to deposit the rents received; but this was not discovered until 1856, when the bank refused to pay a joint check, drawn by the executors in payment of a claim against the estate. Keyser immediately demanded an explanation of Woods, who admitted his failure to deposit the moneys collected by him, but said that he had loaned them upon good security; which turned out to be untrue. ICeyser at once gave notice to the tenants, forbidding them to make any further payments to Woods, and subsequently collected the rents himself, for which he faithfully accounted.</p> <p>On the 8th December 1852, a rule was taken on the executors to show cause why an attachment should not issue against them, for non-payment of a dividend to one of the legatees, under a decree upon a former joint account. A few days afterwards, the necessary amount was deposited by Woods, and the rule was abandoned.</p> <p>The executors filed separate accounts, and the auditor to whom they were referred, charged Woods with a deficit of $3400 ; the legatees contended, that ILeyser ought to be surcharged with this amount, on the ground that he had been guilty of negligence in suffering Woods to be guilty of a devastavit. But the auditor refused to surcharge him; and the court below having confirmed the auditor’s report, and decreed accordingly, this appeal' was taken by the legatees.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action on the case by Andrew Dryburg against The New York and Washington Printing Telegraph Company, for carelessly, erroneously, and untruly transmitting to him a message from Robert Le Roy in New York.</p> <p>On the 26th November 1855, Robert Le Roy, a resident of New York, went to the office of the defendants, and left with their clerk the following message, to be transmitted to the plaintiff, who was a florist in Philadelphia:—</p> <p>“New York, 26th November 1855.</p> <p>“ To A. Dryburg, S. W. cor. 19th and Race:</p> <p>“ Send me, for Wednesday evening, two hand bouquets, very handsome, one of five, and one of ten dollars.</p> <p>“ Robert Le Rot,</p> <p>“ 8 West 22d St.</p> <p>In the messuage, as received in Philadelphia, the words “ two hand bouquets,” read “ two hundred bouquetsand was so delivered to the plaintiff. On the same day, Mr. Dryburg inquired of Mr. Le Roy, by telegraph, “ are the two hundred bouquets intended for pyramids; are the five and ten dollar for the table or hand.” To this he received the following reply, on the same evening: “ I wrote simply two hand bouquets, and not two hundred ; I want two bouquets for the hand — one at five, and the other at ten dollars.”</p> <p>The original message was received from Mr. Le Roy, by the company, for transmission, upon the following terms and conditions :—</p> <p>“ To provide against mistakes, in the transmission of messages, every message of consequence ought to be repeated, by being sent back from the office at which it is to be received, to the office from which it is originally sent. Double the usual price for transmission will be charged, when a message is so repeated, and a report made, by special messenger, to the party sending the same, whether it has been received by the party to whom it was sent, and if not, why not. Or fifty per cent, in addition to the usual rates will be charged, for either repeating or reporting only.</p> <p>“ The company will not be liable for any loss or damage that may ensue, by reason of any delay or mistakes in the transmission or delivery, or from non-delivery of unrepeated messages, but only engage to use reasonable efforts to secure the services of competent and reliable employees, so as to have their business transacted in good faith.</p> <p>“ Nor will the company be responsible for mistakes in the transmission, nor delay in the transmission or delivery, nor for non-transmission or non-delivery of any repeated message, to any extent beyond ten dollars, unless it be insured.”</p> <p>Neither of the messages was required to be repeated, nor insured or paid for as such. The plaintiff, between the time of the receipt of the first and second messages from Le Roy, cut and procured a large quantity of expensive flowers for the purpose of making a number of bouquets, and brought this action for the damages alleged to have been thereby sustained.</p> <p>The defendants alleged that the word “hand” was written “ hund” in the original message, and»proved that the person who transmitted it was a skilful operator.</p> <p>The jury, under the instruction of the court, found a verdict for the plaintiff for $100, subject to the opinion of the court upon the following point reserved, to wit, “whether upon the whole of the evidence the plaintiff is entitled to recover ?” The court in lane subsequently gave judgment for the plaintiff upon the reserved point, and the following opinion was delivered by Sharswood, P. J.:—</p> <p>“ Mr. Le Roy of New York transmitted, in the usual way, by the defendants’ line, a message to the plaintiff, a florist, for two hand bouquets. By the negligence of the defendants, as the jury have found, the message received by the plaintiff was an order for 200- bouquets. In consequence of which the plaintiff suffers damages. The point reserved was, whether the plaintiff could recover in this, which was an action on the case.</p> <p>“ As to the private notice of defendants, that they only insured the correct transmission of messages where they are repeated back, and paid for as such, we do not think it applies here, for many reasons. It was not brought to the knowledge of the plaintiff, and if it had been, could not have exempted the defendants from liability for actual negligence. It was not here the improper working of the telegraph wire, or the misunderstanding by the receiving officer of the signs used, which might be corrected by repeating back the message. But the error was in the clerk who transmitted the order — he negligently read the word ‘ hand’ ■ as though it was ‘hundred.’ It is evident; then, that if the message had been repeated back, it would have been reported all right. What the company, defendants, insure against, when they do insure, is not the negligence of their officers, but those delays and mistakes in the transmission which are unavoidable. '</p> <p>“ On the main question we have had considerable difficulty. If the defendants are to be considered as the agents of Mr. Le Roy, it seems clear, that they are not liable to an action by the plaintiff. Unless the agent or servant commits some actual trespass, his constituent or master is alone responsible to the party injured by his negligence. This is the well-known rule, which is shortly expressed by the term respondeat superior: Lane v. Cotton, 12 Mod. 488; Colvin v. Holbrook, 2 Qomst. JR. 129 ; Denny v. The Manhattan Company, 2 JDenio 118.</p> <p>“ But how can the defendants be considered as the agents or servants of Mr. Le Roy, in a proper sense ? To constitute them such, he ought to have had some control over them in the transmission of his message. He should, at least, have had a right to be present to oversee that his business was properly done, so as not to subject him to responsibilities to strangers, if not the right to take it in hand and do it himself. A man employed to make a coat for another, cannot subject his employer to an action by a third person, for the consequences of negligence. One who contracts to build a house, or ship, or carriage for another, is in no case his servant. This was the position of the defendants. They contracted with Mr. Le Roy to deliver a certain message. To the plaintiff both the defendants and Mr. Le Roy are principals. If he is injured by the negligence of either of them, his recourse is to the party guilty of the negligence, and to him only. These responsibilities — independent of contract — and resting upon no privity between the parties, are incurred to strangers. The most striking illustration is that of a nuisance or obstruction of a public way, by which an individual incurs special damage; and in regard to real estate, perhaps, the suffering it to be in a noisome or dangerous condition by the proprietor after notice, without regard to the original contract. Rule dismissed, and judgment for plaintiff.”</p> <p>To this opinion the defendants excepted; and having removed the cause to this court, they here assigned the same for error. '</p>

<p>The possession necessary to take a parol contract for the purchase of lands, out of the statute of frauds, must be taken and maintained under and in pursuance of the contract, and must be exclusive in the vendee.</p> <p>The purchaser by parol, of an undivided interest in lands, is incapable of such a possession as will take the case out of the statute of frauds.</p> <p>The payment of a part of the purchase-money of a tract of land, raises a resulting trust in favour of the party by whom such payment is made.</p> <p>A party who has an equity resulting from the payment of a part of the purchase-money, cannot defend in ejectment without a tender of the balance of the unpaid purchase-money; at most, he can only have a conditional verdict.</p>

<p>Error to the District Court of Philadelphia.</p> <p>This was an action of assumpsit by John C. Bullitt and Frederick Fairthorne, trustees of the estate of John Tams, an insolvent, against William Tams, for money had and received by the defendant for the use of the insolvent, at different times between the 2d January 1851, and the 4th October 1853, under an alleged fraudulent arrangement between them.</p> <p>John Tams was discharged as an insolvent debtor, on the 9th October 1852, after a protracted opposition; and the plaintiffs were appointed trustees of his estate. It was alleged in this action, that William Tams, the defendant, who was a brother of the insolvent, had been the fraudulent receiver of his moneys, and had in his hands, at the time of the insolvent’s discharge, and before and afterwards, large sums of money belonging to John Tams, which were concealed from his creditors; and to recover these moneys the present suit was brought.</p> <p>The defendant pleaded, inter alia, the following special plea, to which there was no replication:—</p> <p>“ And the said defendant, for a further plea on this behalf, by leave of the court for that purpose first had and obtained, according to the form of the statute in such case made and provided, saith, that the said plaintiffs ought not to have or maintain this their said action against him, because he saith, that on the 20th day of December, A. D. 1851, one Edwin Tams, in the District Court for the city and county of Philadelphia, No. 720, issued an attachment execution sur judgment, against the said John Tams, the assignor of the said plaintiffs, and summoned the said William Tams as garnishee, which was on a judgment of June Term 1851, in said court, No. 454, D. S. B., for the sum of $8000; wherein and whereby said attachment was levied, and seized upon all the goods, money, and property, here sought to be recovered in this action from the said William Tams, and being the same money, goods, and property mentioned in the said plaintiffs’ bill of particulars, as given to and furnished to the said defendant’s counsel; and also being the same property, money, and subject here in controversy; and it was so proceeded in said action and attachment execution, that on the 18th day of May 1853, a verdict was rendered in favour of the said Edwin Tams, against this defendant for the sum of $3137.50, and on the 8th day of June 1853, a judgment was rendered in favour of the said plaintiff on said verdict, which said judgment, on the 29th day of March 1854, was affirmed by the Supreme Court, and on the 16th day of May 1854, the whole amount of said judgment was paid by the said William Tams, and the same was satisfied of record in favour of the said Edwin Tams; and this defendant avers, that all the money, goods, chattels, wares, merchandise, and property mentioned in said plaintiff’s declaration and bill of particulars furnished to the counsel of the said defendant, and which these said plaintiffs now have sued for, was thus attached and seized before any assignment was made by the said John Tams to the said plaintiffs, as the trustees of the estate of John Tams, an insolvent debtor, and that all the money, goods, and effects which this defendant then had or held, when said assignment was made to the said plaintiff, had been and were seized and attached by said Edwin Tams, and by said attachment received from this defendant; and that since the issuing of said attachment this defendant has never had or received any money, goods, chattels, or property belonging to the said John Tams; wherefore he prays judgment whether the said plaintiffs ought, or ought further to have or maintain their aforesaid action against him.”</p> <p>John Tams, the insolvent, had made an assignment of his stock of goods to the defendant on the 11th November 1850, and the attachment pleaded grew out of that assignment. The case was before this court on error, and is reported in 2 Qasey 97.</p> <p>After the discharge of John Tams, a dispute having arisen between him and the defendant, as to the state of their accounts, arbitrators were selected, by whom a settlement was made between them. At the arbitration, an account was produced and read, to which no objection was made by the present defendant, except as to a single item. The papers relating to this arbitration were destroyed; but a copy of this account was produced and offered in evidence on the trial of the present cause; the defendant 'objected to the admission of this paper in evidence, but the court overruled the objection, and sealed a bill of exceptions. There were also other exceptions to evidence, which are sufficiently noticed in the opinion of the court.</p> <p>The defendant gave in evidence the record of the attachment set forth in his special plea, and presented the following points in writing, upon which he requested the court to charge the jury: — ■</p> <p>1. That it appearing from the evidence, that an attachment execution having been issued at the suit of Edwin Tams v. William Tams and others, December Term 1851, No. 720, on the 20th December of that year, and on a judgment for $8000, and served on all the garnishees, and that on the 13th of May 1853, a verdict was rendered against William Tams for $3137.50, which was subsequently paid, under a judgment in the Supreme Court, by him, it being before John Tams took the benefit of the insolvent law, and the question having been then tried and decided, that the purchase by William Tams from John was fraudulent; and the jury having found the value of all the fraudulent property which then passed into William Tams’s hands, to be of but $3137.50, it is conclusive against the assignees, the present plaintiffs, and therefore they cannot recover for any property which was held by the defendant, belonging to John Tams at the time of the service of said attachment, and the time of the trial of said cause, whether obtained fraudulently or otherwise.</p> <p>2. That under the evidence in this case, the plaintiffs having-shown that, if there was any fraud in the sale of John Tams to William Tams, it was at the time of the purchase and transfer of the goods on the 11th of November, A. d. 1850, and all the money under that sale, and the proceeds of it was received by the defendant prior to the issuing of the attachment of Edwin Tams, in December 1851, and a court and jury having fixed the value of all the property thus alleged to have been fraudulently obtained by the defendant, neither John Tams nor his assignees can now recover any other sum, as the price of the goods or money so received; and, therefore, the verdict of the jury should be in favour of the defendant.</p> <p>3. That even should the jury be of the opinion that the sale of the 11th of November 1850 was fraudulent, and that all the goods in the store of John Tams were transferred to William Tams for the purpose of hindering, delaying, and defrauding his creditors, the extent of that fraud having been fixed by an attachment, and settled by a verdict and judgment, anterior to John Tams having taken the benefit of the insolvent law, there was no property thus held and attached which could pass under the assignment, on his discharge as an insolvent debtor.</p> <p>4. There being no evidence that William Tams had ever received any money or goods belonging to John Tams, but what was transferred on the 11th of November 1850, when the purchase of the store and stock of goods was made, there can be no recovery in this action.</p> <p>The court below declined so to instruct the jury, to which the defendant excepted; and a verdict and'judgment having been given for the plaintiffs for $2647.22, he removed the cause to this court, and here assigned for error: 1. The admission of the evidence excepted to on the trial. 2. The refusal of the court below to charge as requested in the defendant’s points.</p>

Appeals from the Orphans’ Court of LehigJi county. These were two appeals from the decree of the court below upon the accounts of Peter Horrace and David Mertz, executors of Frederick Miller, deceased, the one by The Charitable Society of the Evangelical Association, a society incorporated by the state of Pennsylvania, and the other by The Evangelical Association, an unincorporated religious society.

<p>A testator bequeathed a legacy in the following words, “ to my two brothers O. and J., or their heirs or assigns, to share and share alike between said. G. and J., or their heirs or assignsHeld, that the children of G. and J. took by classes, and not per capita.</p>

<p>An action will not lie against a municipal corporation for neglecting to construct a proper system of drainage, in consequence of which a citizen's store was overflowed from an extraordinary fall of rain, and a stock of goods therein was damaged.</p> <p>A power to construct sewers, given to a municipal corporation by statute, does not impose upon the corporate authorities an obligation to exercise the power conferred.</p> <p>A municipality having power to grade its streets, is not responsible in damages for an injury sustained by a citizen, in consequence of the particular grade adopted.</p> <p>Nor is it liable for neglecting to provide a sufficient number of inlets to its sewers, which were sufficient when constructed, but have ceased to be so, in consequence of the increase of population and the greater extent of territory graded and built upon.</p> <p>Where any person has a right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, there the right and the authority give rise to the duty; but where the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed.</p> <p>The opinion of witnesses, examined as experts, who are evidently unlearned in the scientific principles of which they speak, is entitled to no consideration with a court and jury; mere matter of opinion is entitled to no weight at all, unless it comes from persons who first give satisfactory evidence that they are possessed of such experience, skill, or science, as entitles their opinions to pass for scientific truth.</p>

Error, to the Common Pleas of Chester county. This was an action of assumpsit by Anderson Black, administrator of Hannah Irwin, deceased, against Robert Brown and James Brown, executors of James W. Brown, deceased, for money had and received by the defendants’ testator to the use of the plaintiff’s intestate.

Error, to the Common Pleas of Bradford county. This was a foreign attachment by Clark, Bass & Dibble against Belden B. Strong, in which Daniel B. Strong, executor of John Strong, deceased, was summoned as garnishee. And judgment having been obtained against the original defendant for $403.66 and costs, a scire facias was issued against the garnishee, to which he pleaded nulla bona.

On the 18th August 1859, the petition of divers citizens of the Village of Little Meadows, comprising a majority of the freeholders of the township of Apolacon, residing within the limits of the town desired to be incorporated, was presented to the. court below, praying that the Village of Little Meadows might be incorporated into a borough with the following boundaries:— “ Beginning at the 40th mile-stone in the New York state line ; thence along said line, one and…

On the 17th June 1857, a judgment was entered in the court below, in favour of Sobieski Ross against Norman H. Rogers, for $225.39, on which a fieri facias was issued, by virtue of which a tract of 50 acres of land was levied on and extended. And on the 24th June 1859, Henry H. Dent, the owner of the premises, subject to the lien of the judgment, intervened, and obtained a rule to show cause why the plaintiff should not be restrained from proceeding against his land.

This was an appeal by Solomon Newman and others, the devisees, and their alienees, under the will of John Brink, deceased, from the decree of the court below, charging the land devised with the payment of the sum of $5425 to the administrator with the will annexed of the said John Brink, deceased.

* This was a scire facias by Krug & Kohlman against Jacob Light-foot, on a mechanic’s claim for $53.06, which was filed against a “one-storied brick kitchen, or back building,” erected on the easterly half of lot No. 40, in Bell, Edwards & Breed’s plan of lots in the borough' of Birmingham, “being twelve by fourteen feet square, and one story high.” The defendant filed the following affidavit of defence:— “ Before me, personally came John Lightfoot, agent for Jacob…

<p>Appeal from the Common Pleas of Lehigh county.</p> <p>This was an appeal by Pretz, Gausler & Co. from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of A. H. Gilbert. The contest was between the judgment-creditors of the defendant, and the appellants, who claimed under a mechanic’s lien.</p> <p>A. H. Gilbert was the owner of a three story brick hotel, at the north-east corner of Front and Race streets, in the borough of Catasauqua, which was erected and completed in the year 1853; the house was 40 feet in front on Front street, and 60 feet in depth on Race street.</p> <p>In 1857, Gilbert erected a three story brick kitchen, 20 feet in breadth, by 22 feet in depth; adjoining the main building on the east, with which it communicated in each story. • The front of this kitchen was 40 feet back from the street, and the back wall was on a line with the rear end of the main building. The appellants filed their claim for $5228.58 for work and materials in and about the erection and construction of this building.</p> <p>The court below held that this was not such an erection as came within the purview of the mechanic’s lien law, and accordingly decreed the fund in court to the judgment-creditors, to the exclusion of the appellants. From this decree, the present appeal was taken.</p>

This was an action of assumpsit by Anthony F. Miller, Benjamin Tyson, Andrew M. Sallade, H. H. Muhlenberg, and G. A. Nicolls, executors of Henry A. Muhlenberg, deceased, against James Dundas and George M. Stroud, for the value of a quantity of coal taken by John Bittinger, the defendants’ lessee, from the land of the plaintiffs. The defendant, Stroud, was not served with process.

This was an ejectment by Philip Fenstermacher against Daniel Moyer and Solomon Moyer, for one undivided fourteenth part of a messuage and tract of land, in Upper Macungie township, containing 161 acres, or thereabouts.

This was an appeal by Ann Dillinger from the decree of the court below, distributing the estate of John Dillinger, deceased, in the hands of Henry Dillinger, his executor.

This was an action in the case by Iva Bullock against Solomon Bennet, John M. Randall, and John Randall. The declaration was in trespass, charging that the defendants, with force and arms, broke into the plaintiff’s saw-mill, cut, damaged, and destroyed the machinery thereof, pulled down and destroyed the mill-dam belonging thereto, and ejected and expelled the plaintiff from the possession and enjoyment thereof.

Error, to the District Court of Philadelphia. This was an action of trespass by John D. Rosenberger against Joseph T. Hallowell, William W. Hallowell, Henry Simpson, and Sarah Wistar, for levying on and selling the plaintiff’s goods under a distress for rent, in disregard of his claim for the benefit of the exemption law.

<p>Error to the District Court of Philadelphia.</p> <p>This was a scire facias by Mary Ruby and John Ruckstool and Eliza A. Ruckstool, which Mary Ruby and Eliza A. Ruckstool were trustees of The Heart and Hand Female Beneficial Society of Philadelphia, against Gharles Still and Sarah K. his wife, on a mortgage given by the defendants to the female plaintiffs, as trustees, on the 19th February 1856, to secure the payment of $500 and interest, in one year from the date thereof.</p> <p>The following affidavit of defence was filed by Charles Still, one of the defendants :—</p> <p>“ Charles Still, one of the above-named defendants, and on behalf of his co-defendant, being duly sworn, &c., saith: That they have a just and legal defence to the whole of plaintiffs’ claim in the above case, the nature and character of which is as follows: That the said Eliza A. Ruckstool, one of the above-named plaintiffs, before and at the time of the commencement of this suit, and at the time of the execution of the mortgage on which said suit is brought, was and still is married to one John Ruckstool, then and yet her husband, who is still living, to wit, at Philadelphia aforesaid, in the county aforesaid; and this deponent for himself and his co-defendant further says, that they have not, nor has either of them any knowledge of John Ruckstool joined as a party plaintiff in this suit, except as the reputed husband of the said Eliza A. Ruckstool — his name does not appear in the mortgage on which this suit is brought — nor have this deponent and his co-defendant, or has either of them, at any time had any transactions of business or otherwise with him. All of which the deponent expects to be able to prove on the trial of the case.”</p> <p>The court below, on motion of the plaintiffs’ counsel, gave judgment for want of a sufficient affidavit of defence, which was here assigned for error.</p>

This was a feigned issue under the Sheriff’s Interpleader Act of the 10th April 1848, wherein Mary Jane Horter was plaintiff, and M. L. Hallowell & Co. defendants, to determine whether a stock of dry goods levied on by the sheriff, under an execution against Washington Horter, the plaintiff’s husband, and claimed by her, were the property of the said Mary Jane Horter.

<p>An action of covenant upon articles of agreement for the sale of land, to recover the purchase-money, is in effect an equitable proceeding to compel specific performance of the contract, and is governed by the same equitable principles.</p> <p>A court of equity will not compel specific performance of a contract for the sale of land, unless the vendor can make a marketable title.</p> <p>A court of equity will not force a title upon a purchaser, which is not so free from difficulty, as to law and fact, that on a resale, an unwilling purchaser shall be unable to raise any question, which may appear to a judge sitting in equity, so doubtful, that a title involving it ought not to be enforced.</p> <p>If the vendor cannot make such a title as the vendee is bound to accept, he must refund what has been paid, and bring ejectment; when the vendee must pay the balance of the purchase-money, or surrender the possession.</p>

<p>In an action against husband and wife, brought with a view of charging the wife’s separate estate, the plaintiff must set forth in his pleadings such facts as bring the case within some one of the exceptions contained in the Act of 11th April 1848.</p> <p>Where the declaration contains no averment respecting the origin of the debt, the plea of coverture is a good defence for the wife; and if the plaintiff wish to avoid its effect, he must set forth-in a replication the special circumstances which make the wife liable, notwithstanding her coverture; or amend his declaration so as to set forth these circumstances.</p> <p>A joint action cannot be supported against husband and wife, under the 8th section of the Act of 11th April 1848, unless the debt were contracted by the wife; the word “ or” in the proviso to that section is to be read “ and.” The plaintiff in such action must aver and prove not only that the debt was incurred for necessaries for the support and maintenance of the wife’s family, but that it was contracted by herself, or in her name by her authority.</p> <p>This reading of the 8th section of the Act of 1848, does not exclude the case where a married woman contracts debts, not for necessaries, but to improve her separate estate; for this class of cases is provided for in the 6th section of the act.</p> <p>Where a joint action is brought against husband and wife, with a view of charging the wife’s separate estate, she is the substantial party defendant, and may appeal from an award of arbitrators, without her husband joining in the appeal.</p> <p>After such appeal by the wife, the action proceeds properly against her, impleaded with her husband, and the jury should be so sworn, and the verdict taken accordingly.</p> <p>If the wife, who is the sole party defendant in the issue tried, obtains a verdict in her favour, she is entitled to recover her costs from the plaintiff.</p>

<p>Though a -will speaks for some purposes from the period of execution, and for others, from the death of the testator, yet it never operates until the latter period ; and therefore, where a testator, by his will, expressed his intention to dispose of the bulk of his estate by notes and deeds, and after certain specific bequests to his wife, gave a pecuniary legacy to one granddaughter, who, he declared, should have only the sum so bequeathed to her; but died without making any other disposition of his property; it was held, that he died intestate as to the property not-specifically bequeathed, and that the same descended to his heirs at law, including his said granddaughter.</p> <p>An estate owned by the testator at the date of his will, will not pass under it, where the intent is clearly expressed that it shall not, but shall be reserved for future disposition by deeds and notes.</p> <p>Where, in a will, there is a general intent, and also a particular one, and these are inconsistent with each other, the particular is to be sacrificed, to the general intent.</p> <p>Merely negative words are not sufficient to exclude the title of the heir or next of kin; there must be an actual gift to some other definite object.</p>

<p>Under the Act of 21st April 1855, the City of Philadelphia has power to construct culverts, within the boundaries of the former municipalities of the county of Philadelphia, and to file liens for the expenses of constructing the same, against the lots fronting thereon, subject only to the restrictions contained in that act.</p> <p>It is not necessary that the owners of property fronting on the street on which such culvert is constructed, should petition therefor; the only restriction is, that the owners of property should not be charged more than seventy-five cents per foot, for each foot of ground fronting on such street.</p> <p>The Act of 4th April 1837, in connection with the acts for the introduction of water into the district of Spring Garden, authorized the authorities of that district, under certain restrictions, to build culverts, and to assess the whole expenses thereof upon the lot-holders; the Act of 16th April 1840 authorized the filing of liens therefor; the Act of 2d February 1854 transferred these powers to the City of Philadelphia; and the Act of 21st April 1855 repealed all restrictions upon this power, and authorized the construction of culverts of any capacity, subject only to the condition that the property owners should not be charged more than seventy-five cents per foot therefor.</p>

This was an appeal by Isaac Dean, from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of… Held: that an amicable revival of a judgment which had previously no legal existence, is a good judgment, and creates a valid lien; and in Cash v. Tozer, 1 W. £ 8. 525, where there was a defective judgment against two of three nominal defendants,, upon an amicable revival, signed by all of the defendants, the new judgment became a valid…

This was an ejectment by William F. Detweiler against Jonas G. Hagey, for a lot of ground in Hellertown, Saucon township, 10 feet in width, by 125 feet in length. The suit was brought in order to fix the boundary between the plaintiff’s and defendant’s lots.

Error, to the Quarter Sessions of Philadelphia. This was an action of debt by The Commonwealth of Pennsylvania against Gebhard Harres, on a forfeited recognisance in $10,000, conditioned for the appearance of E. L. Snow, to answer a charge of receiving stolen goods.

This was an appeal by Thomas J. Leiper, in his own right, and as guardian of the minor children of Samuel M. Leiper, deceased, from the decree of the court below, distributing the estate of the said Samuel M. Leiper, deceased, in the hands of Mary B. Leiper, his widow and surviving executrix.

SA~* ' ' This was a scire facias by John M. Gries against The President, Directors and Company of the Bank of Pennsylvania, on a mechanic’s claim for $3500, upon a contract for the performance of work and labour done as an architect, in and about the erection and construction of the defendants’ banking-house, in Chestnut street, in the city of Philadelphia.

This was a scire facias by the City of Philadelphia, to the use of James Deehan, against Richard Wistar, on a municipal claim for $286.45, for paving Fifteenth street from Centre to Green street in front of a lot of ground owned by the defendant.

This was an action of replevin by Elias E. Hemingway against Martin Reinheimer, for two black mares of the value of $400. The defendant gave a property-bond to the sheriff, and retained possession; and pleaded non cepit, and property.

This was an action of debt by Robert J. Douglass against J. Eastburn Mitchell, executor of Thomas S. Mitchell, deceased, on the following instruments:— $3500. On demand, I promise to pay Robert J. Douglass, or order, thirty-five hundred dollars, with interest from date (without defalcation) for value received. And I do hereby confess judgment therefor, and release errors; and I hereby also waive all siay of execution from and after the maturity of the above note.

<p>The acceptor of a bill of exchange is not to be admitted to vary the terms of his acceptance, by parol evidence.</p> <p>Where a bill is accepted “ payable when in funds,” the burden is upon the plaintiff to show that the acceptors were in funds. In such case evidence tending to prove that anote deposited with the acceptors, was subject to a prior appropriation by the drawer, is admissible under the general issue.</p>

This was an action of assumpsit by Lewis Dela against David Z. Evans on a promissory note, of which the following is a copy:— “Philadelphia, April 4th 1857. “Dolls. 601t%V “ Two months after date, I promise to pay to the order of Wm. B. Gendell, six hundred and one dollars t6q%, without defalcation, value received. “ D. Z. Evans. Endorsed — “ Wm.

This was an action of debt by Martin Hayward against James Haviland and William K. Deacon, on a bond given under the 11th section off the Act of 12th July 1842: Brightly's Purd. 29, pi. 61. .

This was an action on tbe case by Samuel Sutton, for the use of William M. Kennedy, against The North America Building Association, for unjustly refusing to permit the plaintiff, Samuel Sutton, to transfer seventeen shares of the defendant’s stock to William M. Kennedy.

Error, to tbe District Court of Philadelphia. This was an action of assumpsit by William McKnight against The Philanthropic Savings, Loan and Building Association, to recover back a sum of money paid to the defendants on an usurious contract. On the 23d June 1854, the plaintiff, who was the holder of five shares of stock in The Philanthropic Savings, Loan and Building Association, was the successful bidder for a loan of $1000 at a premium of 28 per cent..

This was an action of covenant by The Globe Mutual Insurance Company, to the use of Alanson Marsh, against The Commonwealth Insurance Company, on a policy of re-insurance, dated the 19th December 1855, whereby the defendants re-insured the plaintiffs against loss, to the amount of $1300, upon the British brigantine “ Speed,” lost or not lost, at and from Halifax, Nova Scotia, to Hull, England; “subject to such risks, valuations, and conditions, including the risk of premium…

This was an appeal by Depue S. Miller from the decree of the court below distributing the estate of Christian Butz in the hands of his assignees in trust for the benefit of creditors. On the 7th July 1855, Depue S. Miller obtained a judgment against Christian Butz for $5900. And on the same day, Butz assigned all his estate to Herman S. Heckman and Depue S. Miller, in trust for the benefit of his creditors.

This was an ejectment by Edward T. Hallowell against George H. Armstrong and Eobert McQuiston, for a house and lot on the north side of Lombard street, in the city of Philadelphia, eighteen feet front, by sixty feet in depth, commencing at the distance of 222 feet eastward from Nineteenth street.

<p>In an action for the purchase-money of lands, the defendant cannot resist the plaintiff's right to recover, on the ground of a failure of title as to a portion of the property, if he has disabled himself from placing his vendor in statu quo, by conveying the title to a third party.</p>

<p>Error to the District Court of Philadelphia,</p> <p>This was an action of assumpsit by Oliver Sproule against Samuel K. Ashton, as endorser of a promissory note, of which the following is a copy:—</p> <p>$300. Phila., March 24th 1851.</p> <p>Twelve months after date, I promise to pay to the order of Oliver Sproule, three hundred dollars, with lawful interest from date, without defalcation, for value received (not to be deposited in bank). • Geo. E. Murray.</p> <p>Endorsed — Samuel K. Ashton.</p> <p>At the maturity of this note, no demand of payment was made on the maker, nor was any notice of non-payment given to the defendant. It was protested for non-payment on the 11th March 1858, shortly before the commencement of othis suit.</p> <p>On the trial, the plaintiff gave the note and protest in evidence, and proved that he loaned the sum mentioned in the note to George E. Murray, on the faith of the defendant’s endorsement.</p> <p>The defendant called George E. Murray as a witness, who testified as follows:—</p> <p>“I live on Eleventh street, below Chestnut; I am a dentist, and know the plaintiff; he was in my employ three years; I had paid him several sums of money; my wife knew of it, and the plaintiff collected money for me and kept it; kept $25 from Mr. Winchester; he then arranged with me, after the year had expired, and the note was due, that I was to pay him, by instalments, the amount of this note, as it suited my convenience. This was about three years ago. IThe instalments were to be paid as suited me, and he agreed with me, that he was to have no claim on the defendant. I never took receipts. The plaintiff told me yesterday that he had an account. I have a claim against the plaintiff, for teaching him dentistry; he was about three years under my tuition'.The usual fee is $200. The plaintiff said- he would never make a claim on defendant. Three or four days after this arrangement, he sued me; it was in August or September, A. D. 1852, that he arranged with me to pay in instalments, and the plaintiff remained two years with me. He said, he did not hold the doctor responsible. At the time the note matured, I had stocks, which the defendant knew of, and which I would have transferred to him if he had been pushed. I offered to do so, but as I made the arrangement with the plaintiff, I did not transfer the stocks. It was previous to the arrangement with the plaintiff, that I made this offer. I kept the stocks' after the plaintiff agreed with me not to hold defendant.”</p> <p>Gross-examined. — “ I did not pay this note at maturity, because it'was not claimed, and no demand was made; the plaintiff had collected my money, $25, and said he would give me credit for that on account of the note, and I have paid him amounts; the stock I owned then was in the Moyamensing Building Association, and the Odd Fellows’ Hall Association; I owned eight shares of the Moyamensing Building Association, $50 a share; I had paid in $50 or $55 on each- share; I was several years a director; outside of the plaintiff’s claim, then, I owed. nothing; I gave the defendant no consideration for endorsing this note; the defendant was to endorse the note, and there was nothing said to the defendant to secure him; I tendered to the defendant security two years afterwards, but having made an arrangement with the plaintiff for time, I did not secure the defendant. I told the plaintiff, that I would transfer to the defendant to secure him (the defendant), and the plaintiff said, I need not do that, and that he would not look to the doctor for it, and I did not secure the doctor.”</p> <p>The defendant’s counsel then moved the court to strike out the evidence of the protest, which was overruled, and the defendant excepted.</p> <p>The defendant’s counsel presented the following points in writing, upon which he requested the court to charge the jury:—</p> <p>1. That the Act of April 5th 1849, does not apply, and no recovery can be had.</p> <p>2. That if the jury find from the evidence, that the plaintiff agreed with Murray, after the maturity of this note, to give him time, and received part of the money, agreeing to take the-balance in instalments, in such event the defendant is not liable.</p> <p>3. That if the jury believe the maker of the note forbore to secure the defendant, in consequence of the plaintiff agreeing not to look to defendant, the defendant is not liable.</p> <p>The learned judge declined to answer the defendant’s points, because they were not presented before the commencement of the summing up, as ■ required by the rule of court; but charged the jury as follows:—</p> <p>“ The Act of 1849 applies to this note, and it was quite sufficient that the note was protested before this action was brought.</p> <p>“ It is said, that the time given, discharged the defendant. The law is not so. The plaintiff was not bound to proceed against Murray short of six years.</p> <p>“It is said, that an agreement was made by the plaintiff, to give time, and he gave it to Murray. This is not enough. There must be a consideration to make such agreement available.</p> <p>“ If the $25 was agreed to be credited to this or any other debt, I can see no consideration for any time given in that. You can’t pay part of a debt as a consideration for a new bargain.</p> <p>“ If plaintiff was told by Murray, that he meant to transfer sufficient stock to secure defendant, and he had the means, and therefore agreed not to look to defendant, he is discharged.”</p> <p>To this instruction the defendant excepted; and a verdict and judgment having been rendered for the plaintiff for $446.87, the defendant removed the cause to this court, and here assigned for error: 1. The refusal of the court below to strike out the evidence of the protest: 2. The charge of the court.</p>

Appeal in Equity from the Court of Nisi Prius. This was a bill in equity by The Harmony Fire Company against The Trustees of the Fire Association of Philadelphia, for an injunction to restrain the defendants from making a dividend of their profits to the exclusion of the complainants.

. This was an information before J. S. Steeple, a justice of the peace, against John Scully, for having performed worldly employment on the Lord’s day, commonly called Sunday, contrary to the provisions of the Act 22d April 1794.

This was an action of assumpsit by John White against Samuel Williams, in which the parties agreed upon a case stated, in the nature of a special verdict, wherein the following facts were embodied:— Jonathan White died intestate, on the 23d July 1825, seised in fee of divers pieces of real estate, and among others of a lot of ground on the north side of Callowhill street, between Fourth and Fifth streets, in the city of Philadelphia, leaving a widow, Catharine White, and six…

<p>The promise of one partner that the firm will pay the debt of a third person, is not binding on his copartners: the authority of a partner over his co-partners does not extend so far.</p> <p>In an action against three persons on a promise to pay the debt of another, a joint promise by them all must be proved: proof that they were partners, and that one of them promised for all, is not sufficient.</p> <p>The taking of a judgment by one member of a firm, in favour of the firm, for an amount which included a debt owing to a third party, is not evidence of a contract by the firm to pay the debt of such third person.</p>

<p>Appeal from the Common Pleas of Bradford county.</p> <p>This was an appeal by John Waters from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of J. W. Spencer.</p> <p>On the 1st July 1858, John Waters, by articles of agreement, contracted to sell to J. W. Spencer, a farm in Burlington township, Bradford county, for the sum of $1400; the purchase-money to be paid as follows: $100 in cash, $650.45 to certain creditors of Waters, the payment of whose claims was assumed by Spencer, and for the balance, $649.55, Spencer was to give Waters his note payable on or before the 1st January 1860.</p> <p>On the same day, Spencer gave Waters his judgment-note for $649.55, on which judgment was entered up, on the 3d July 1858.</p> <p>On the 5th July 1858, Waters executed and delivered to Spencer, a deed conveying the legal title to the land, with the understanding that the judgment was to remain a lien for the balance of the purchase-money. By this deed, Waters acknowledged the receipt of the purchase-money, released to Spencer, his heirs and assigns, all his (Waters’s) “ estate, right, title, interest, claim, and demand whatsoever, in law or equity,” in and to the land, and concluded with a covenant of general warranty. This deed was recorded on the 9th July 1858.</p> <p>On the 26th August 1858, H. H. Mace recovered a judgment against Spencer for $660, on which execution was issued; and on the 1st September 1859, the land was sold by the sheriff, for $1220, and the proceeds were paid into court for distribution. There were a number of other judgments against Spencer, subsequently to that under which the sale was made.</p> <p>The auditor appointed to report distribution of the proceeds of sale, appropriated the same to the subsequent judgment-creditors, to the exclusion of Waters’s judgment; and the court below having confirmed the auditor’s report, and decreed distribution accordingly, this appeal was taken.</p>

This was an action of assumpsit by Charles A. Miner and Eliza R. his wife, against Thomas E. Atherton, executor of Elisha Atherton, deceased, to recover a legacy of $1400 given by the will of the testator to his daughter, the said Eliza R. Miner.