Volume 36 — Pennsylvania State Reports

<p>After reviewers have filed their report in the clerk’s office, it is competent for the court, during the same term, to vacate their appointment, for sufficient reasons, and to set aside all the proceedings thereon.</p> <p>Viewers cannot report during the term at which they were appointed. The filing of their report in the clerk’s office, is not reporting to the court.</p>

This was an appeal by John Fields from the decree of the court below, subjecting him, as the alienee of Abraham Sprowls, a devisee of Henry Sprowls, deceased, to the payment of one-third part of certain legacies bequeathed by the will of the said Henry Sprowls, and alleged to be charged on the lands devised. Henry Sprowls died in 1848, and by his last will, among other things, bequeathed and devised as follows:— “ 3.

This was an ejectment by Duncan McLaughlin, A. N. Meylert, and William B. Clymer, against Lyman McCumber and Christian Keener, for a tract of 200 acres of land in… Held: and the premises were condemned; and on the 19th July 1836, the sheriff of Crawford county sold the tract in dispute, by virtue of a venditioni exponas issued thereon. The title of the purchasers at this sale was vested in the defendants. The plaintiffs claimed title under the heirs of John Field, deceased.

Error, to the Common Pleas of Payette county. This was an action of covenant by Alfred Patterson against Jesse Beeson, on a covenant of indemnity executed by the defendant to the plaintiff, on the 22d September 1852.

<p>The interest or proceeds of a fund in the hands of trustees is liable to attachment.</p> <p>Whenever a party has a right of action, his creditors may attach it, unless it be for wages.</p>

This was a scire facias by The Commonwealth of Pennsylvania, for the use of The City of Allegheny, against Edward W. II. Schenley and Mary E. Schenley, his wife, upon a municipal claim filed in. the. Court of Common Pleas, for the expenses of grading and paving First street, in the city of Allegheny, opposite the lots of the defendant, Mary E. Schenley, and bounding thereon.

This was one of ten writs of scire facias issued upon the same claim, set out in the preceding case, to recover from Edward W. H. Schenley and Mary E. Schenley his wife, the costs and expenses of grading and paving West street, in the city of Allegheny.

This was a scire facias issued upon the same claim as those in the two preceding cases, to recover from Edward W. H. Schenley and Mary E. Schenley, his wife, the costs and expenses of grading and paving Third street, in the city of Allegheny. In this case, the defendants’ counsel presented the two following additional points, to wit:— 16.

<p>Error to the Common Pleas of Hrie county.</p> <p>This was an action on the case by Hiram Cook against Hugh T. Haggarty, for negligence, as a bailee of certain horses beloriging to the plaintiff. The declaration was as follows:—</p> <p>“ Hugh T. Haggarty was summoned to answer Hiram Cook, in a plea of trespass on the case ; and thereupon the said plaintiff, by J. W. Douglass, his attorney, complains, for that, whereas, heretofore, to wit, on, &e., at, &c., the said plaintiff, at the special instance and request of the said defendant, caused to be delivered to the said defendant, certain goods and chattels, to wit, six horses of great value, to wit, of the value of one thousand dollars, to he, by the said defendant, safely kept and pastured, and specially cared for and attended to, in and upon the fields, meadows, and premises of the said defendant at, &c., for a reasonable reward to the said defendant in that behalf; and the said defendant then and there had and received the said goods and chattels, for the purpose aforesaid. Yet the said defendant, not regarding his duty in that behalf, afterwards, to wit, on, &c., at, &c., by himself and his servants, in that behalf conducted himself so carelessly, negligently, and improperly, and by his absolute misuse and abuse, in and about the keeping and pasturing, caring for and attending to the said horses, in and upon his premises aforesaid, that by and through the negligence, misuse, abuse, and improper conduct of the said defendant and his servants, in that behalf, the said goods and chattels then and there became and were greatly injured, damaged, and destroyed, and wholly lost to the said plaintiff, to wit, at, &c.</p> <p>“And the said plaintiff further complains, for that, whereas, heretofore, to wit, on, &c., at, &c., the said defendant, at his special instance and request, had the care of certain other goods and chattels, to wit, six horses of the like description and value, as those in the said first count mentioned, of the said plaintiff, to safely keep and pasture in and upon the premises of the defendant, as aforesaid; and thereupon, it then and there became and was the duty of the said defendant, whilst he so had the care of the said horses, to take due and proper care thereof. Yet the said defendant, not regarding his duty in that behalf, did not nor would, whilst he so had the care of the said last-mentioned horses, take due and proper care of the same, but wholly neglected so to do; and took such bad care thereof, and absolutely so misused and abused the same, that afterwards, to wit, on the day and year aforesaid, the said last-mentioned horses became and were greatly injured and damaged, and wholly lost to the said plaintiff, to wit, at, &c. Whereupon the said plaintiff saith he is injured and hath sustained damages to the value of five hundred dollars; and thereupon he brings his suit.”</p> <p>To this declaration, the defendant pleaded “not guilty;” but on the trial, he moved for leave to amend his plea, by changing it to “ non assumpsit, payment, and set-off.” The court allowed the amendment, notwithstanding the plaintiff’s objection, and sealed a bill of exceptions.</p> <p>By this .change of pleading, the defendant was enabled to give evidence of set-off; and there was a verdict and judgment in his favour for $25. The plaintiff thereupon sued out this writ, and here assigned the allowance of such change of plea for error.</p>

This was an appeal by Mary Hartman, administratrix of Conrad Hartman, deceased, from the decree of the court below, dismissing her petition for a review of a former decree of the said court upon her administration account.

This was an action of assumpsit by The Pittsburgh and Connellsville Railroad Company against John K. Graham, to recover a subscription to the capital stock of the company.

<p>Certiorari to the Quarter Sessions of Allegheny county.*</p>

<p>Appeal from the District Court of Allegheny county.</p> <p>This was an appeal by Robinson, Minis & Miller, from the decree of the court below, distributing the proceeds of a sheriff’s sale of the personal property of Porter, Rolfe & Sweet, and refusing their application for an issue. The facts of the case are fully stated in the following opinion delivered in the court below by Williams, J.:—</p> <p>“ This is an application by Robinson, Minis & Miller, for a feigned issue to try the validity of two judgments in favour of Dilworth & Bidwell, and of Everson, Preston & Co. for the use of Dilworth & Bidwell, against Porter, Rolfe & Sweet. Both parties are execution-creditors of Porter, Rolfe & Sweet, and claim the fund in court of distribution arising from the sale for their personal property. The petition, on which the application is made,, is verified by affidavit; and the only question for our determination is, whether or not it sets forth such material facts in dispute,, and the nature and character thereof, as make it the duty of the court to grant the issue prayed for.</p> <p>“ It is not alleged, that either of said judgments was confessed ■without any consideration therefor, or for a sum exceeding the amount actually due; the only allegation in regard to the'judgment in favour of Dilworth & Bidwell is, that it ‘ was confessed by collusion between the parties thereto, and for the purpose of hindering and delaying said Robinson, Minis & Miller, and other creditors of Porter, Rolfe & Sweet, in the collection of their just-debts ;’ and the allegation in regard to the judgment in favour of Everson, Preston & Co., is, that immediately on its confession, it was assigned to Dilworth & Bidwell; that it was confessed with-the express condition that it should be so assigned,., and by collusion between Porter, Rolfe & Sweet, and Dilworth & Bidwell, for the purpose of hindering and delaying the other creditors of Porter, Rolfe & Co.</p> <p>“ The judgment in favour of Dilworth & Bidwell, as the records show, was confessed on the 21st of June 1858, on a bond with warrant of attorney annexed, bearing date May. 1st 1857, which was before the- indebtedness of Porter, Rolf & Sweet to the petitioners, as is alleged, had accrued or been contracted. It is not alleged that the bond and warrant of attorney were antedated. The judgment in favour of Everson, Preston & Co., instead of being assigned to, was confessed for the use of Dilworth & Bid-well. Now, if these judgments were confessed for the amount actually due, and the contrary is not alleged, they are not rendered fraudulent and void, because they may have had the effect of hindering and delaying the petitioners, and other creditors of the defendants, in the collection of their just debt. And if the defendants were insolvent, the confession of the said judgments was not a fraudulent disposition of their estate, though the effect may have been to give Dilworth & Bidwell a preference over their other creditors: Siegel v. Chidsey, 4 Casey 279. But it. is alleged that these judgments were confessed by collusion between the parties thereto, and for the purpose of hindering and delaying the petitioners and other creditors of the defendants in the collection of-their just debt. If this were so the judgments would, undoubtedly, be fraudulent and void as against the said creditors. But this allegation is unsupported by the averment of a single fact tending to justify it; and, for aught that appears, may have been an inference of the petitioners from certain facts, harmless in themselves, and from which no such inference could be legally or properly drawn. If the judgments were confessed by collusion, why not state wherein the collusion consisted ? Whether in the fact they were confessed without any consideration, or for an amount exceeding the actual indebtedness to the plaintiff? And if confessed for the purpose of hindering and delaying the petitioners, and other creditors, in the collection of their just debts, why not state the facts indicating such a purpose ? It is not easy to perceive how the judgment in favour of Dilworth & Bidwell could have been confessed by collusion between the parties thereto, and for the purpose of hindering and delaying the creditors as alleged, if all the facts disclosed by the record are true, and none of them are denied, and if the record discloses all that was done by the parties — and nothing else is alleged to have been done by them — there is no averment of a single fact or circumstance tending to show that the parties have done anything more than the record exhibits; or that the indebtedness shown by the record does not actually exist. Are we then bound to grant the issue prayed for, on the naked' allegation of the petitioners that the judgment was confessed by collusion, and for the purpose of hindering and delaying them in the collection of their just debt ? The act requires that before an issue shall be directed in a case like this, ‘ that the applicant for such issue shall make affidavit that there are material facts in dispute therein, and shall set forth the nature and character thereof.’ We are of opinion that the petition and affidavit in this case are defective in not setting forth with sufficient precision and fulness the nature and character of the facts alleged to be in dispute. If a party can make out a case which would entitle him to go to a jury, he can certainly show it to the court. He is not required to exhibit the evidence, but he can state with precision the facts which the evidence tends to establish. That is all that is required of the petitioners in this case. Let them state the facts which render the judgments collusive, and which show that they were given for the purpose of hindering and delaying creditors. If the facts are admitted, the issue is one of law for the determination of the court. If they are denied, the issue is one of fact for the determination of a jury; and in such a case it should be granted. Any other construction of the act would only tend to encourage applications, without any good foundation for their support, for feigned issues, in cases where the proceeds of the estates of insolvent debtors are brought into court for distribution. If the conclusion to which we have come in this case needs the aid of authority, it will be found in the following cases: Christophers v. Selden, 4 Casey 165; Russell v. Reed, 3 Casey 166; Seip’s Appeal, 2 Casey 176; Shertzer’s Executors v. Herr, 7 Harris 36; Knight’s Appeal, 7 Harris 493; particularly the case first cited, where the question in dispute is stated with more fulness and precision than it is here, but, in regard to which, the Supreme Court say, that ‘ it is so vaguely stated, that the court ought to have required a more precise statement of the particular facts in dispute,’ and conclude by reversing the judgment and setting aside the order of the court directing the issue.</p> <p>“ And now, to wit, July 8th 1859, the application of Robinson, Minis & Miller for the issue prayed for, is refused; and the auditor appointed to distribute the proceeds of the sheriff’s sale of •the personal property of Porter, Rolfe & Swett, is directed to proceed to distribute the same, and make report thereof to this court.”</p> <p>The auditor having filed his report, and the same having been confirmed by the court, and distribution decreed accordingly, Robinson, Minis & Miller took the present appeal.</p>

On the 9th November 1853, a petition .was filed praying for the appointment of viewers to lay out the road in question; viewers were accordingly appointed, whose report in favour of the proposed road was presented to and approved by the court on the 24th March 1854, and the width of the road fixed. No exceptions were filed to this report. On the 27th March 1854, reviewers were appointed, who filed their report in the clerk’s office on the 30th May 1854.

On the 28th June 1858, a petition was presented to the court below, asking the appointment of viewers, to locate the road in question, “ and to vacate such parts of other roads as it may supersede.” Viewers were accordingly appointed, who, on the 5th October 1858, filed their report in favour of the proposed road, stating that they had located a part of the road on certain designated portions of existing roads, and annexed a draft of the new part of the road; “ and all other…

Error, to the Common Pleas of Crawford county. This was a judgment entered on the 18th July 1848, on a bond and warrant of attorney, dated the 17th October 1844, in favour of J. Stuart Riddle, surviving executor of Henry Shippen, deceased, against Ralph Clapp, in the penal sum of $9000, conditioned for the payment of $4500, or the amount due on an article of agree-, ment bearing even date with the bond.

In Equity. These were two bills in equity exhibited, the one 'by Spencer Mercer and Eccles Robinson, and the other by The Commonwealth of Pennsylvania, at the relation of the Attorney-General, against The Pittsburgh, Fort Wayne, arid Chicago Railroad Company, and The City of Allegheny, for an injunction to restrain them from obstructing and occupying North Canal street, in the city of Allegheny, by changing the grade thereof and maintaining a railroad thereon; to enjoin them…

Error, 'to the Common Pleas of Erie county. This was an action of assumpsit by Barbour & Brothers against Baily K. Fullerton, on a promissory note made in the city of New York, of which the following is a copy:— “ $222.53. New York, August 4, 1857. “ On demand, I promise to pay to the order of James Brenan, Esq., two hundred and twenty-two ffy dollars, without defalcation, for value received. “ Baílx K. Fullerton. .

Pleas of Fayette county. This was-an action of assumpsit by Samuel Tinsman, for the use of Isaac Bailey, against Thomas Eaull, Sr., Thomas Eaull, Jr., and William L. Eaull, upon a promissory note of which the following is a copy:— “ $700.

■ This was a judgment entered by virtue of a warrant of attorney, on the 28th July 1858, in favour of James A. Hutchinson and Edward Simpson, against Ledlie & Ulam, in trust for the benefit of the defendants’ creditors. The bond and warrant of attorney were executed by James E. Ledlie, one of the firm of Ledlie & Ulam, without the knowledge of his copartner.

This was an action of assumpsit by Clarke & West, dry goods merchants of New York, against J. M. Little and E. Watts, to recover for a bill of goods sold to the firm of E. Watts & Co. on the 9th September 1854, amounting to $918.91. The defendant Little alone took defence.

This was an action of debt by Jacob P. Maride against John M. Allen, to recover the sum of $1000, a portion of the purchase-money due on an agreement for the sale of a tract of land, dated the 18th May 1859.

This was an appeal by Solomon Diehl and. others, the heirs at law of Elizabeth Wickert, deceased, from the decree of the court below distributing the balance of her estate in the hands of the said Solomon Diehl, her administrator.

This was an action of assumpsit by Abram Drum, late sheriff of Luzerne county, for the use of Jacob Miller, against Anthony IT. Emley, to recover the amount of the defendant’s bid at a sheriff’s sale of the real estate of Samuel E. Hughes.

This was an amicable action of debt by William L. Schaffer against Cyrus Cadwallader, wherein the parties agreed upon a case stated, in the nature of a special verdict, in which the following facts were submitted for the opinion of the court. On the 16th August 1797, Seth Johnson and wife conveyed to George Hunter, in fee, a square of ground on the south side of Wallace street, bounded by Nineteenth and Twentieth streets, and extending southward to Green street.

Tioga county. This was an appeal by Jacob Larrison and others, heirs at law of Theodoras Larrison, deceased, from the decree of the court below, confirming the account of O. B. Wells, administrator of the said Theodoras Larrison. Theodoras Larrison died on the 5th March 1857, and on the 1st June 1858, the executors named in his will having renounced, administration of his estate was granted to O. B. Wells.

This was an appeal by Elizabeth S. Lytle from the decree of the court below on the distribution of the residuary estate of Dr. Peter Shoenberger, deceased, in the hands of his executors. The fund consisted of the proceeds of real and personal estate.

This was an appeal by A. M. & R. White from thq decree of the court below on the distribution of the residuary estate of Dr. Peter Shoenberger. The decree appealed from was the same referred to in Lytle’s Appeal, supra 131. On the 11th June 1856, Edward Ii.

Appeal in Equity from the Court of Nisi Prius. This was a bill in equity exhibited by John Bradley, as a bondholder of The Chester Valley Railroad Company, secured by a mortgage of the 1st May 1852, as well for himself as for all other holders of like bonds, who might choose to become parties to the suit, and contribute to the expenses thereof, against The Chester Valley Railroad Company, and Shepherd Knapp, Alfred S. Frazer, and Daniel S. Miller, the trustees named in the…

This was a scire facias by Jacob 0. Ewing against the executors and devisees of Elizabeth B. Sergeant, deceased, for the purpose of charging the real estate of the testatrix with a judgment recovered against the personal representatives. The case against the executors was before this court, and is reported in 6 Qasey 75.

. This was an appeal by Jacob R. Snyder from the decree of the court below, setting aside the proceedings for the partition, of the real estate of John Snyder and Catharine Snyder. John Synder and Catharine, his wife, were tenants in common 'of a tract of 9 acres 152J perches of land in the county of Philadelphia.

This was an appeal by the Bank of Montgomery County from the decree of the court below, distributing the proceeds of a sheriff’s sale of the real estate of S. E. Jacoby & Co. On the 18th of August 1854, S. E. Jacoby & Co. executed a mortgage upon the premises in. question, in favour of The Bank of Montgomery County, conditioned, upon its face, for the payment of $15,000, with interest, on the 1st day of April 1855.

This was an appeal by Allin Robinett, surviving partner and assignee of the firm of Robinett, Pollard & Co., from the decree of the… Held: in Bouslaugh v. Bouslaugh, 17 S. “ But whatever effect the deed to Traynor may have had upon the interest of Philip C. Donnelly in the lands of his wife, an interest which at the date of the conveyance was not bound by any judgment, lands of which the wife had and could have had no seisin, we think it clear, that as to her choses in…

<p>In an issue, under the Act of 19th February 1849, to assess the damages done to the plaintiff's -water-power by the construction of the defendants' railroad, it is error, to reject evidence that the cause of mischief complained of could be removed for $140.</p> <p>A water-power situated on one of the smaller streams of the state, is such a property as a railroad company is liable to make compensation for, if damaged by the construction of their road, although the stream may have been declared a public highway, by Act of Assembly.</p> <p>In respect to the great rivers of the state, which are navigable by nature, and therefore public highways at common law, the Mill-dam Act of 23d March 1803 is but a license to the riparian owner, subject to be revoked whenever the interests of the public may require it.</p> <p>But in respect to the creeks and smaller streams, the law is different;-in such case, the soil covered by the water is surveyed and granted to the riparian owners; and they have the right of property in the water-powers upon them.</p> <p>Such right of property is subject to the public easement of their use for purposes of navigation, so far as 'they are capable of it. And it is not necessary, in order to confer such easement on the public, that they should be declared public highways by statute.</p> <p>The only effect of declaring such a stream a public highway, by Act of Assembly, is, to bring it within the remedial provisions of the Act of 23d March 1803. It does not affect the vested rights of the riparian owner.</p> <p>That clause of the Act of 1803 which forbids him who erects or maintains a dam “to obstruct or impede the navigation of such stream, or prevent the fish from passing up the same,” is but declaratory of the common law.</p> <p>That act is a fuller provision for the regulation of the public right, and supplies a statutory remedy for its infringement. But it does not confer a license on the riparian owner, bounded on such a stream; when such an owner improves his water-power, he does it, not under a revocable license, but as the owner of the soil.</p>

<p>A power, contained in a deed of trust, to sell the trust property, “ either for a price or consideration to he paid out and out in money, or upon the reservation of aground-rent,” extinguishable or otherwise, is not well'exeeuted by a sale on credit, the purchase-money to be secured by mortgage upon the premises.</p> <p>The parties having contracted for a sale on credit, the purchase-money to be secured by a mortgage, payable by instalments, a court of equity will not decree a conveyance reserving a ground-rent, extinguishable at the times and in the proportions specified for the payment of the instalments contracted to be secured by mortgage. Nor will the payment of the whole of the purchase-money in cash be decreed.</p> <p>Equity regards compensation in cases of defective execution, if the contract can be substantially executed, as equivalent to performance; but will not enforce a different contract from that entered into by the parties.</p> <p>In case of the death of one of several trustees, a power of sale, under the Act of 3d May 1855, is well executed by the survivors.</p> <p>It seems, that where real estate is conveyed to several trustees, they take as joint tenants, and on the death of one of them, the estate survives to the others at common law; such cases being excepted from the operation of the Act of 31st March 1812.</p>

<p>An attachment execution was issued against an insolvent canal corporation, and served on a banker, who was the president of the company, and with whom its funds were deposited by the treasurer, under an agreement to pay interest thereon, and to hold the same subject to call; the garnishee, who was the holder of a large amount of the bonds of the company, pleaded nulla bona; the court below held, that the attachment would lie, and that the garnishee could not set off the debt due to him by the company, against the attachment: The case was argued in this court before three judges, and the judgment was affirmed.</p> <p>Held, by Iowrie, 0. J., and Strong, J., that an attachment execution would lie against an insolvent canal company; and that the funds attached were subject to the operation of the writ.</p> <p>By "Woodward, J., that the garnishee, under the circumstances of the case, could not set off-the debt owing to him by the company; and by Lowrib, 0. J., that the defence of set-off was not open to him, under the plea of nulla bona, but that any defence of the garnishee, against the attachment, as a creditor of the defendant, should have been specially pleaded.</p> <p>By Strong, J., that the garnishee had the right to set off his debt against the attachment.</p> <p>By Woodward, J., (1.) That the company being insolvent, the Acts of Assembly did not authorize the issuing of the attachment. (2.) That even if the writ could lawfully issue, it could not be levied on the funds in the hands ■ of the garnishee, to the prejudice of the canal and of the public; that the net profits of the company’s business were alone liable to execution, it being an insolvent improvement company. (3.) That the funds were not attachable, because they were within the company’s treasury, and not deposits outside of it.</p>

<p>A mortgage for purchase-money is entitled to priority over a mechanics’ lien against the equitable estate of the vendee, under the contract of sale, although dated more than sixty days prior to the time of delivery and recording, and, by agreement, made to a third person, who advanced the purchase-money.</p> <p>The conveyance of the legal estate to the vendee, and the simultaneous execution of the mortgage to the party who advanced the purchase-money, is not such a merger as will let in the mechanics’ claims against the equitable estate of the vendee.</p> <p>Where mechanics’ liens are entered against an equitable estate, their value depends upon that estate, and they survive or perish with it.</p>

<p>The Supreme Court, sitting in Philadelphia, will not allow a writ of mandamus, even in a case of which they have jurisdiction, if it involve nothing but an ordinary ease relating to the duty of a local or city officer, and have nothing special in its nature or circumstances, that requires the court to take original cognisance of it.</p>

Attachment. This was an attachment against William T. Taylor, and others, members of the Select and .Common Councils of the City of Pittsburgh, for a contempt in not obeying a peremptory writ of mandamus, issued out of this court, in the case of the Commonwealth, ex rel. Hamilton, v. The Select and Common Councils of the City of Pittsburgh: 10 Oasey 496.

<p>In equity, the personal representatives of a widow, entitled to dower in her deceased husband’s lands, may have an account of the rents and profits, thereof, although dower was not assigned in her lifetime, and no proceedings were instituted for that purpose.</p> <p>An election by the widow, filed in the Orphans’ Court, not to accept a</p> <p>Erevision made for her'by the will of her husband, is a sufficient demand of er dower, to enable her personal representatives, after her decease, to maintain a bill in equity, for an account of the rents and profits.</p>

<p>Error, to the Common Pleas of Tioga county.</p> <p>This was an action of assumpsit by H. S. Hastings and George McNitt against John Bower, as endorsees of a promissory note, of which the following is a copy:—</p> <p>“ $1500. White Deer Yalley, November 11, 1852.</p> <p>“ Ninety days from date I promise to pay to the order of S. T. McCormick, at the Bank of Danville, fifteen hundred dollars, without defalcation, for value received.</p> <p>• “John Bower.</p> <p>“ Credit the drawer, S. T. McCormick.</p> <p>Endorsed, “ S. T. McCormick.”</p> <p>On the trial, the defendant proved by a witness, that he had seen this note, in the fall of 1855, in the possession of S. T. McCormick, the payee; that McCormick offered it to the witness in payment of a debt of $500. Another witness testified, that in the latter part of 1856, Hastings told him he had taken the note of McCormick in the spring of 1856; that he “ got it in a dicker that he thought it strange McCormick should hold this note against Bower, while Bower was pushing him on judgments and selling his property, and that if he (Hastings) could not recover it of Bower, McCormick would “ make it right to him.”</p> <p>The defendant then offered in evidence the following receipt, having first proved the body, signature, and endorsement to be in the handwriting of McCormick: — ■</p> <p>“Received, November 11, 1852, of John Bower, a note for fifteen hundred dollars, payable at the Bank of Danville, which note is to be paid by me.</p> <p>“S. T. McCormick,”</p> <p>The court below ruled out this evidence; to which the defendant excepted. The defendant again offered this receipt in evidence, to be followed by proof of its existence in the hands of the defendant, previous to any transfer of the note by McCormick to the plaintiffs. The court again rejected the evidence, and the defendant excepted.</p> <p>The defendant then offered in evidence the records of the Common Pleas of Tioga county, showing a large indebtedness on the part of McCormick to Bower, executions thereon in 1855, the sale of McCormick’s property to Bower, and proof that the plaintiff was present at that sale. This evidence was ipbjected to by plaintiff, rejected by the court, and the defendant excepted.</p> <p>The- court below (White, P. J.) instructed the jury to find a verdict for the plaintiffs, for the amount of the note and -interest. A verdict was accordingly rendered for the plaintiffs for $2071.50, and judgment having been entered thereon, the defendant sued out this writ, and here assigned, for error the rejection of the evidence offered on the trial. -</p>

This was an action of assu,mpsit by Jacob S. Kichline, Reuben Christine, and George Applegate, administrators of Jacob Kichline, deceased, against Amos Rogers, on a promissory note, of which the following is a copy:— “ Dollars 321.

<p>- In an action on the case by a widow against a railroad company, for an act of the defendants’ agents, which resulted in causing the death of the plaintiff’s husband, it is error to charge the jury as follows: “ The question of damages is for you; should you feel it necessary to examine, that question, let fair and exact justice be your guide, and your own good sense will determine it.”</p> <p>Under the Act of 26 th April 1855, the sum to be recovered is .the pecuniary loss which the plaintiffs have suffered from the death of their relation; nothing can be-recovered as a solatium for wounded feelings, or by way of vindictive damages.</p> <p>In such cases, it is the duty of the court to give definite instructions to the jury as to the true measure of damages.</p> <p>The Pennsylvania Eailroad Company v. Zebe, 9 Casey 318, affirmed.</p>

This was an indictment against Robert Shay, Solomon' Rose, Michael Oassiday, Chancey Root, Henry Root, Benjamin French, William T. Fuller, and Augustus Kirlin, charging them with the murder of one Joseph Mayer, on the 12th December 1859, by shooting him with a gun. The defendants demanded separate trials, which were granted.

<p>If one who has a right, by license, to enter upon the land of another, for a lawful purpose, exceed his license or abuse his authority, he is liable for the consequential damages arising therefrom in an action of trespass quare clausum fregit.</p> <p>If'a party who possesses a license to enter on the land of another, take down a gate erected thereon, to enable him to enter, and neglect to restore it to its place, whereby his swine are enabled to trespass upon the plaintiff's land, he is liable in trespass for the damages thereby occasioned.</p> <p>Where there are several counts, all of which are good, it is not error to enter judgment generally, though the evidence may have been applicable to only some of them.</p>

<p>If, on the trial of an indictment for a misdemeanor, the jury acquit the defendant and direct the costs of prosecution to be paid by the county, the latter is not liable to the defendant’s witnesses for the fees for their attendance. They are no part of the costs of prosecution.</p> <p>In such case, the court has no power to make an order on the county commissioners for the payment of the defendant’s witnesses.</p>

<p>Error to the Common Pleas of Franklin county.</p> <p>This was an action of trespass quare clausum fregit, brought by Thaddeus Stevens against John Holker Hughes and Napoleon Hughes, to recover damages for cutting timber upon the plaintiff’s land in Guilford and Green townships.</p> <p>The declaration, which was for a common law trespass, described the close by metes and bounds. To this' the defendants pleaded the general issue, two special pleas denying the title and possession of the plaintiff, and liberum tenementum. To this last plea, the plaintiff replied, by way of estoppel, a former recovery in another action of trespass, brought by Samuel Hughes, under whom the defendants claimed, for a breach of the same -close, in which a case had been stated, and judgment given for the plaintiff on the title: Stevens v. Hughes, 3 W. § S. 465. This judgment was held to operate as an estoppel, and to conclude the defendants ■from again contesting the title, in Stevens v. Hughes, 7 Oasey 381. This left but two questions for the determination of the jury, namely, whether the plaintiff had possession of the locus in quo, at the date of the alleged trespass; and the amount of his damages.</p> <p>On the trial, the plaintiff gave his title in evidence; and there was proof of the repeated use by the defendants, and those under whom they claimed, from 1811 to 1858, of the tract in question, by cutting and coaling the timber thereon; they also paid the taxes; and at one time there was erected on it a tenant house and some collier’s cabins, but they had been long abandoned.</p> <p>The plaintiff proposed to ask a witness the following question: “ How much, was the timber in dispute worth to the owners of the furnace?” The defendants objected to this offer; but the court admitted the question to be put, and the defendants excepted. It did not appear that the witness answered the question, other than by saying: “ If the wood had belonged to me, I would not have taken fifty cents a cord for it.” But evidence of the value of the timber to the owners of the furnace was given by other witnesses, without objection.</p> <p>The court below (Kimmell, P. J.) instructed the jury, that the plaintiff had the legal title to the land; that the defendants, and those under whom they claimed, had not had such possession as would defeat a recovery'; and that the true measure of damages Avas the actual value of the wood cut and carried away by the defendants. To this instruction the defendants excepted.</p> <p>There was a verdict for the plaintiff for $500 damages; and afterwards, on application of the plaintiff, the court trebled the damages found by the jury, and entered judgment against the defendants for $1500 and costs.</p> <p>The defendants, thereupon, sued out this writ, and here assigned for error : 1. The admission of the evidence mentioned in his bill of exceptions. 2. The charge of the court below to the jury. 3. The entry of judgment for treble damages.</p>

<p>Error to the Common Pleas of Franklin county.</p> <p>These were two actions of assumpsit, the first, by Benjamin Deford and Albert L. Webb, trading under the firm of B. Deford & Go. against Hugh W. Reynolds, as surviving partner of the firm of R. McCulloh & Co.; and the other, by Benjamin Deford and Isaac Deford, trading under the firm of B. Deford & Sons, •against the same defendant, to recover balances alleged to be owing to the plaintiff firms respectively by' R. McCulloh & Co. The jury were sworn in the first case only, and it was agreed by the counsel of the respective parties, that the matters in variance in both suits should be submitted to the jury sworn in that case; that the defendant should be charged with all sums legally due by him to either of the firms, and be allowed all legal credits.</p> <p>In 1851, Hugh W. Reynolds, the defendant below, entered into partnership at Chambersburg, Pennsylvania, with Robert McCulloh, since deceased, to carry on the tanning business, under the firm name of R. McCulloh & Co. In the same year, the firm of R. McCulloh'& Co. opened an account with Messrs. Defo.rd, who wrere leather merchants in the city of Baltimore; purchasing large quantities of hides, oil, &e., from them, generally, on six months’ credit, and returning the hides when tanned, to the Messrs. Deford, to be sold on commission. During the continuance of the partnership between McCulloh and the defendant, the plaintiffs did not know who was McCulloh’s partner.</p> <p>The firm of R. McCulloh & Co. was dissolved, by consent, on the 7th April 18-53, when Mr. Reynolds retired from the firm, and public notice of the dissolution was given in the Chambersburg newspapers, on the 14th of the same month. The business was subsequently carried on by Robert McCulloh alone; he retaining all the firm property, and agreeing to .pay the firm debts.</p> <p>Prior to this time, all the drafts drawn by the plaintiffs were upon the firm of R. McCulloh & Co.; and their letters acknowledging the receipt of leather sent to them for sale, were addressed to the firm. But from the time of the dissolution, the plaintiffs drew upon McCulloh alone, and their letters were addressed to him individually. Their account, however,' was kept with the firm until the 31st December 1853; and their clerk testified that he did not know of the dissolution until that date.</p> <p>At the time of the dissolution, the firm of R. McCulloh & Co. was indebted to the plaintiffs in the sum of about $3942.56; but this was more than liquidated, before the death of Robert McCulloh, by the proceeds of leather consigned to the plaintiffs for sale, by McCulloh, and by them credited to the account of the firm, as appeared by the accounts currrent.</p> <p>Robert McCulloh continued to deal with the plaintiffs, purchasing hides and oil from them, and consigning large quantities of leather to them for sale, until April 1854, when he died, being largely in their debt, and his estate was found to be insolvent. After the death of McCulloh, the plaintiffs combined all their accounts into one, embracing the dealings of R. McCulloh & Co. and those of McCulloh alone, subsequent to the 7th April 1853, which they presented to McCulloh’s administrator, and claimed and received a dividend out of his estate, in November 1854, amounting to $1472.</p> <p>On the trial of the cause, the defendants’ counsel presented the following points, upon which they requested the court to charge the jury in the case of B. Deford & Co. v. Reynolds :—</p> <p>1. That if they believe from the evidence, that the plaintiff rendered an account current to R. McCulloh & Co. for the year 1852, which account includes the items upon which this suit is brought, then the credit contained and allowed in such account will be appropriated by law, according to the order of the items of the'account; the first item on the debit side of the account being discharged or reduced by the first item on the credit side, and the plaintiff ought not to recover.</p> <p>2. That if they believe from the evidence, that B. Deford & Sons succeeded B. Deford & Co. in business, and that in rendering their account to R. McCulloh & Co. the plaintiff continued the account in the same manner as before, and as if there had been no alteration in the firm, then whatever balance was due at the time of such change in the firm, from R. McCulloh & Co. to B. Deford & Co., would be gradually diminished by the sums paid in subsequently by the debtors, and particularly would such be the case, if the different firms were composed by one or more of the same individuals.</p> <p>They also presented the following points, in the caso of B. Deford & Sons v. Reynolds:—</p> <p>1. That if they believe, from the evidence, that the defendant was not known to the plaintiff as a member of the firm of R. McCulloh & Co., he might withdraw at any time without being required to give notice of the dissolution of the partnership, and is only chargeable for debts contracted during the time he was actually a partner.</p> <p>2. That if they believe, from the evidence, that there was an actual dissolution of the partnership of R. McCulloh & Co., and that after this time, Robert McCulloh purchased hides of the plaintiffs, and drew drafts upon them, and received bills of the sales of leather, and all in the name of Robert McCulloh, they ought to infer from such facts and circumstances, notice of the dissolution of the partnership of R. McCulloh & Go.</p> <p>3. That if they believe, from the evidence, that at the time of the dissolution of the partnership, Robert McCulloh purchased the stock in the yard, and assumed the payment of the debts of the firm; this constitutes such stock, firm assets, which should first be applied to the payment of firm debts,' to wit, to the liquidation of the balance due from R. McCulloh & Co. to B. Deford & Sons, at the date of the dissolution of said partnership.</p> <p>4. That if they believe, from the evidence, that at the time the defendant retired from the firm of R. McCulloh & Co., there was a balance in favour of the plaintiffs, the said defendant would be liable for such balance; but if the accounts were continued in the same manner as before, without any new account being opened against Robert McCulloh alone, the balance for which the defendant was so liable would be diminished by every payment afterwards made by Robert McCulloh (supposing such payments not to be appropriated to the discharge of any specific item) the first item on the debit side of the account being discharged or reduced by the first item on the credit side.</p> <p>5. That if they believe, from the evidence, that the plaintiffs in the statement of their account, as communicated to Robert McCulloh, after the dissolution of the partnership, or their account as filed in court, upon which this suit is brought, exhibits a balance against R. McCulloh & Co., and that this balance is the result or product of the aggregate amount of the items on the credit side of the account, deducted from the aggregate amount of the items on the debit side, then there has been, on the part of the plaintiffs, an appropriation or application of the credits contained in such accounts to the payment or discharge of the debts sustained on the debit side of said account, sufficient at least to fully pay and satisfy the balance due to the plaintiffs from R. McCulloh & Co., at the date of the dissolution of the partnership.</p> <p>6. That if they believe, from the evidence, that the plaintiffs have made an appropriation of the money arising from the sales of leather made after the dissolution of the partnership of R. McCulloh & Co., to the debts of said firm, they cannot, particularly after having communicated such appropriation to Robert McCulloh, change it without the consent of the defendant.</p> <p>7. That if they believe, from the evidence, that the credits allowed R. McCulloh & Co., in the account sued on, amount to a greater sum than what has been proven against R. McCulloh & Co., in the debit side of the account, then they ought to find for the defendant.</p> <p>The court below (Kimmell, P. J.) charged the jury as follows :—</p> <p>“ The plaintiffs claim to recover in this case the sum of $2898.11. The defendant admits that he entered into partnership with Robert McCulloh in the tanning business in the year 1851; that they were mutual partners; and that the firm name was R. McCulloh & Co. The firm continued to do business until the 14th of April 1853, or about that period, when it was dissolved by mutual consent, and the dissolution 'advertised in the newspapers of the borough of Chambersburg. After the dissolution the business was continued by Robert McCulloh alone. It is alleged here, by defendant, that by the agreement of dissolution, McCulloh released all the firm property and assumed all the firm debts.</p> <p>“ In 1851, the firm of R. McCulloh & Co. opened an account with the plaintiffs, who are leather merchants in the city of Baltimore. They purchased hides, oil, and other articles connected with their business, and the clerk says that they were purchased at six months, and that it was a part of the agreement that after tanning the hides, they were to be returned to the plaintiffs, who were to receive and sell the leather, on commission, within six months, and allow a credit for the amount of the sales. The partners acted, it is said, under this arrangement until the dissolution of the firm of R. McCulloh & Co., in April 1853, and the plaintiffs allege that the business was continued by Robert McOulloh, and the purchases made by him, from their firm, on the credit of the firm of R. McCulloh & Co., without notice of the dissolution, up to 31st December 1853. The plaintiffs never changed their books, from the time the account with the firm of R. McCulloh & Co. was opened, until the 31st December 1853, although the members of the firm changed once or twice; but it is agreed, that you shall consider the whole account as if there had been no change in the members of the firm, charging the defendant with the sums legally due from him, and allowing all legal credits. The defendant says the plaintiffs had actual notice of the dissolution. Robert McCulloh died in 1854, and his estate was found to be insolvent. His administrator paid on the w'hole indebtedness $1472.</p> <p>“There is no controversy here as to the correctness of the plaintiffs’ account, but the defendant says that he cannot be held for the value of the goods and stock furnished to Robert McCulloh, after the dissolution of the firm. At the time of the dissolution of the firm of McCulloh & Co., the account stood as follows:—</p> <p>Charges \ ........$3990.69</p> <p>Credits ......... 649.64</p> <p>. Balance due plaintiffs .... $3341.05</p> <p>“The defendant says that this balance was afterwards paid by Robert McCulloh, and that the plaintiffs have credited on their books to McCulloh & Co. a sum greater than the indebtedness. The account as claimed by plaintiffs stands thus:—</p> <p>Charges to December 31st 1853 .... $12,787.52</p> <p>Credits 9,141.40</p> <p>Balance ...... 3,646.12</p> <p>Add interest to the present time .... 1,011.15</p> <p>$4,657.27</p> <p>Credit amount paid by Trostle $1470.00</p> <p>Add interest to present 313.80</p> <p>1,783.80</p> <p>Balance due now......$2,873.47</p> <p>“ The defendant has requested instructions on seven points.</p> <p>“ Answer to the first point. The defendant admits he was a partner in the firm of R. McCulloh & Co., from 1851 to the period of the dissolution in April 1853, but says that if it was not known to the plaintiffs that he was a partner, they were not entitled to any notice of the dissolution, and that therefore he cannot be charged with the subsequent purchases of Robert McCulloh. We instruct you that, if you believe the defendant was an open partner of the firm of R. McCulloh & Co., and that the plaintiffs sold the goods and furnished the stock on the credit of the company, then the liability of the defendant did not cease with the dissolution, although the plaintiffs may not have known who were the members of the firm. It is scarcely to be expected that the plaintiffs, doing business in Baltimore, should know who composed the firm of R. McCulloh & Co. in Chambersburg. But if the goods were sold to Robert McCulloh, on his own credit, or if Benjamin Deford, or any of the partners, had actual notice of the dissolution, from the time of such notice the defendant’s liability ended.</p> <p>“Answer to the second point. Instead of the word ‘ ought,’ we say you may infer, from the facts and circumstances in the case, that the plaintiffs had actual notice of the dissolution. The accounts of this firm of R. McCulloh & Co. having extended to the day of the dissolution in April 1853, the plaintiff was entitled, as we have already said, to actual notice of the dissolution, and you may infer, from the facts and evidence in the case, that such notice was given; and if such notice was given, from that time the responsibilities of the defendant ceased. The defendant relies mainly, for the establishment of this position, on the testimony afforded by the books of the plaintiffs, and the letters and drafts. He argues that prior to the dissolution, the firm name was always used in the business transactions between the firms, but that thereafter, the entries on the books are made against the firm only for small items, commission, &c., whilst the large items for hides and oil are all charged to Robert McCulloh; and that the drafts were all in the name of Robert McCulloh alone, and, from this evidence, he comes to the conclusion that the plaintiffs had actual notice. The clerk was not able to say how the difficulties in the entries occurred; that he made many of the entries himself; that the goods were furnished on the faith of the firm. The counsel contend that there could not have been such notice, because the credits are all entered to R. McCulloh & Co., and that entries are made against the company down to 31st December 1853. The question of fact is for the jury on all the evidence in the case.</p> <p>“Third point. As there is no evidence in the case'to show that any part of the stock in the yard at the dissolution was forwarded to the plaintiffs by R. McCulloh, it is not required that we shall answer this point.</p> <p>. “ The remaining points from four to seven. The debtor has the right to say how the credits shall be appropriated, and when he omits to do it, the creditor may make the application. If R. McCulloh directed the funds to be applied to the indebtedness created by him after the dissolution, then the plaintiffs could not direct otherwise; but if he was silent on the subject, the creditor had the right to apply them to the balance due at the dissolution, and having done so, no change can be made without the defendant’s consent. In this latter event, that balance would be extinguished. The accounts show the disposition made by the plaintiffs of the credits — they are all entered to R. McCulloh & Co. If, as is assumed, McCulloh, by their agreement of dissolution, was to take the firm property and pay the firm debts, he may have considered and treated the whole indebtedness as his own. Whether there is any evidence of such agreement we submit to the jury. The Trostle credit was appropriated to the whole claim of plaintiffs — you will allow the defendant the benefit of this payment, as of the debt on which it was made ; and if you believe, from your examination of the case, that the plaintiffs are entitled to recover, you will allow all the credits to the defendant that have been proved in the case.”</p> <p>To this charge the defendant excepted; and a verdict and judgment having been rendered for the plaintiffs for $1435.43, he sued out this writ, and here assigned the same for error.</p>

This'was a feigned issue, directed by the court below, to try the validity of two judgments confessed by John Barnett in favour of Diller Ringwalt, for $1200 and $750 respectively, in which the said Diller Ringwalt was ordered to be the plaintiff, and certain other judgment-creditors of John Barnett, the defendants.

This was an attachment execution issued on a judgment in favour of William H. Brown & Co. against'Francis G. Williamson, for $645.15, aud served on John T. Greene and Adam Coover, executors of Johnston Williamson, deceased, the father of Francis G. Williamson, as garnishee. The parties agreed upon a case stated, in which the following facts were submitted for the opinion of the court, with leave to either party to sue out a writ of error.

This was an attachment execution issued by a justice of the peace, on a judgment in favour of Watson & Brown against Evans Benn, and served… Held: that the amount of such wages might be attached for the master’s debt in the hands of the employer; so where a man contracted to repair the streets, and had horses, carts, and men employed to do the work at certain wages, it was held, that the sum due for their work to the contractor was liable to be attached for his debt in the…

This was a scire facias on a mechanic’s claim, by John Eberly against Henry Lybrandt, Frederick Klineyoung, and Christopher Lybrandt. The claim was filed on the 16th February 1856, for the sum of $347.98J, for carpenter work and boarding, done and furnished by the said John Eberly, within six months last past, for and about the erection and construction of a two-story stone and frame house of the defendants, in Safe Harbor.

This was an action of assumpsit by Michael Holcomb, Esq., a justice of the peace, against The County of Cumberland, to recover his fees in 195 cases of conviction for vagrancy, between the 21st January and the 22d April 1859, which he claimed at the rate of 87J cents in each case.

Error, to the Common Pleas of Lancaster county. This was an action of debt by The Commonwealth of Pennsylvania, for the use of Thomas Robinson, trustee of John Kreider and Elizabeth his wife, against William C. Boyd, one of the sureties of John Rawlins, assignee of the said John Kreider and wife, in a bond given by the assignee for the faithful application of the proceeds of certain real estate ordered to be sold by the Court of Common Pleas.

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of assump/sit by Ur. A. R. Egbert against the Adams Express Company, for not delivering, in proper time, a box of drawings or architectural designs, sent by the plaintiff to the building committee of the Touro Almshouse, in New Orleans.</p> <p>In the fall of 1858, the committee of the Touro Almshouse advertised for plans and specifications, and offered a premium of $500 to the successful competitor; and limited the time for presenting .them to the 1st November 1858. The plaintiff was a competitor for this • premium, and, on the 19th October 1858, delivered to James Louden, the defendants’ agent, a box of drawings of plans for the said almshouse. Mr. Louden, not knowing the amount to he charged for freight, sent ’the box to Baltimore, to the agent of the express company there, with directions to mark upon the box “freight paid,” and to charge his office in Carlisle: The freight, $3.50, was charged to Mr. Louden’s office as being paid, for which Louden gave the plaintiff a receipt; but the agent in Baltimore neglected to mark the prepayment of freight upon the box, so that when it reached New Orleans, the committee declined to pay the freight, and it was not delivered to them.</p> <p>The mistake in not marking the freight prepaid having been discovered, the box was again sent to the committee, in March 1859, after the plans submitted had been passed upon, and the premium of $500 awarded to another person. When the box was delivered to the committee, the chairman, at the request of the agent of the express company, convened them to examine the plan's of Dr..Egbert, which were found to be totally unsuited for the purpose for which the building was intended, and not at all adapted, in its ventilation, to the climate in which it was to be erected. The box was returned to the company, and by them to the plaintiff.</p> <p>On the trial, the counsel for the respective parties presented certain points in writing, upon which they requested the court to charge the jury. The defendants’ points, with the answers returned to them by the court, were as follows:—</p> <p>1. That if the jury believe that the box containing the plaintiff’s architectural designs or plans for building the Touro Almshouse, at the city of New Orleans, consigned to R. D. Shephard, G. Keersheed, and James Saul, were received by the consignees, though not until a plan for such building had been selected, and the premium therefor paid, on account of the omission of the defendant to mark the freight of the box prepaid; and the jury also believe that such plan of the plaintiff was totally unsuited for such building, and wholly objectionable, and that had it arrived in due time, it would not have been selected or adopted, nor the premium paid for it; and that the plaintiff would have gained nothing by its being received in due time, and lost nothing by the ' omission of. the defendant to mark the prepayment of the freight to New Orleans, and the plaintiff sustained no actual damage thereby, he is entitled to nominal damages only.</p> <p>Answered in the affirmative.</p> <p>2. Independent of the defendants’ evidence in the cause, there can be no recovery by the plaintiff beyond nominal damages, the plaintiff not having proved any actual damages, and the chance for the premium being a contingent one.</p> <p>Answer. — We cannot answer this point as requested: we will state the law applicable to this position in answer to the plaintiff’s second point.”</p> <p>The plaintiff’s points, and the answers to them, were as follows :—</p> <p>1. That it is incontrovertibly proved that the box set out in the declaration was delivered to the defendant, to be carried and given to the persons to whom the same was directed; that it was not delivered in pursuance of their contract, and therefore, the plaintiff is entitled to recover in this action, and the only question of fact referred to the jury is, how much the plaintiff is entitled to recover.</p> <p>Answered in the affirmative.</p> <p>2. That the intrinsic value of the property sent is not the only measure of damages, but that it is the duty of the jury to take into consideration the nature of the property, the talent and labour of the man necessary to produce the drawings, the reputation which he had involved in obtaining the decision of the committee in his favour, the fact that all his hopes, expectations, and profits were cut off by the negligence of the defendants, are fit subjects for the consideration of the jury in assessing the damages.</p> <p>Answer. — “ If the defendants failed to perform their contract, and if the evidence fails to satisfy you, that if the contract had been performed, it would have been of no benefit or advantage to the plaintiff, then you may take into consideration the time and labour bestowed on those plans and drawings, in expectation of being a competitor for the premium offered. If the plaintiff thought proper to bestow his time and labour for the purpose of being a contestant for the offered premium, and having his designs exhibited before the committee, and he has been disappointed in this, by the wrongful act of defendant, this is a proper subject for consideration, and in this aspect of the case the plaintiff may recover more than nominal damages. What amount of damages, if any, the plaintiff ought to recover, under all the evidence, we submit to you to determine; but in any event, it is admitted that nominal damages may he recovered.”</p> <p>3. That it is the duty of the jury to discard from their minds, any evidence tending to prove what was the opinion of any member of the committee to whom the plans were to he submitted, except that of R. D. Shephard, for so far as the evidence has been given in this cause, it was never submitted to the committee, and all chance of his obtaining the premium, and the reputation which a decision in his favour would have entitled him, was cut off by the gross negligence of the defendant.</p> <p>Answered in the affirmative.</p> <p>To these answers the defendant excepted; and a verdict and judgment having been rendered for the plaintiff fob $375, the defendant removed the cause to this court, and here assigned the same, inter alia, for error. .</p>

This was an action of assumpsit by Mary Albright against John Ranch, to recover compensation for services rendered in the capacity of housekeeper and domestic servant, during a period of two years and nine months. ■ In the beginning of October 1854, the plaintiff entered into the service of the defendant under an express contract of hiring, by which it was stipulated that she should receive, for her services, the sum of $3 per month.

This was an appeal by Amos Shelly and others, judgment-creditors of David Wise, from the decree of the court below, distributing the proceeds of a… Held: the defendant served notice claiming the benefit of the' exemption act, and the appraisers found the property could not be divided so as to set .off a part to defendant under his claim. A vend. ex. issued on Eberly’sj^. fa. to November Term 1858, and the writ was returned by the sheriff, and money paid by the defendant.

This was an ejectment brought by Isaac Kuhn against Jacob Barncord and Rebecca his wife, originally, to recover the undivided moiety of a tract of 82 acres of land, in Montgomery township, Franklin county. On the trial, the court below, notwithstanding an objection by the defendants’ counsel, permitted the record to be amended, by striking out the name of Mrs. Barncord as a defendant; and by extending the plaintiff’s claim to the entire tract.

<p>The verdict of a jury, upon an issue directed by a court of equity, no final decree having been entered in the cause, is not conclusive upon the parties, on the trial of an action at common law, in which the same question is raised.</p> <p>Error to the Common Pleas of Somerset county.</p> <p>This was an action of trespass by David Saylor against Conrad M. Hicks and John J. Fike, for quarrying and carrying away limestone from his land in Somerset township.</p> <p>On the 25th January 1853, David Saylor, the plaintiff, contracted by articles of agreement to sell to Conrad M. Hicks, all the coal a.nd other minerals embodied or imbedded under the surface of his farm, excepting so much limestone and coal as he might require for his own individual consumption and purpose.</p> <p>On the 3d April 1854, a deed was prepared and executed, whereby the plaintiff and his wife conveyed to Conrad M. Hicks, Richard D. Johnson, and James Smith, their heirs and assigns for ever, all the stone coal, iron ore, fossils, -limestone, and all other minerals and mineral substances (exclusive of the surface soil) in, under, and contained within the premises described in the articles of agreement; reserving to the grantors, during their natural lives, and the life of the survivor, the right of taking and using all the stone coal that should be necessary for their domestic use upon the farmland of quarrying and using all the limestone that should be necessary, or that they might desire to use upon and for the use of the farm, as a fertilizer for the same, and so much stone coal as should be needed to convert the said limestone into lime; and also all the minerals within two acres of the farm to be laid off, so as to include the dwelling-house and barn.</p> <p>On the 20th March 1855, the plaintiff filed a bill in equity against the grantees in this deed, charging that the contract was for the sale of the coal only, and that through the fraudulent practices of the defendants therein, the written agreement was made- to include all the coal and other minerals; and that the deed, by specifying more minutely the substances implied under the general term “ minerals,” was, by the said defendants, fraudulently made to enlarge the grant; and that the limestone was not intended to be included therein; and praying that the said deed and articles of agreement might be vacated, and annulled.</p> <p>The defendants filed their answers to this bill, denying the charges therein contained; and when the cause came on for hearing, the court ordered that the cause be referred to a iury, to find, for the information of the conscience of the court, the truth of the following propositions, to wit: 1. Was the agreement, in the plaintiff’s bill mentioned, fraudulently obtained from the plaintiff by Conrad M. Hicks, one of the defendants ? 2. Was the deed, in tlje plaintiff’s bill mentioned, fraudulently obtained from the plaintiff by the defendants, or any, or either of them ?</p> <p>These issues were tried by a jury; on the 15th November 1855, there was a verdict for the defendants; and on the 19th November, the entry was made, “judgment on verdict;” but no decree was made in the equity suit.</p> <p>This action of trespass was brought for quarrying, and carrying away the limestone upon the premises included in the deed of the 3d April 1854; and the defendants relied upon that deed as a justification. On the trial, the plaintiff offered to prove that this deed was obtained by fraud and deceit; and that Conrad M. Hicks, the acting party, had declared at different times, both before and after, and on the day, and at the time, it was executed, that he was getting the coal only. To the admission of this evidence the defendants objected, on the ground that the plaintiff was estopped from contesting the validity of the deed, by the proceedings in the equity suit. The court below sustained the objection, ruled out the evidence, and the plaintiff excepted.</p> <p>There w.as a verdict and judgment for the defendants; whereupon, the plaintiff removed the cause to this court, and here assigned the rejection of the said evidence for error.</p>

Appeals from the Orphans’ Court of York county. These were two several appeals by Michael Gable and Elias Tome, the executors of Yeronica Gable, deceased, from the decrees of the court below upon their separate administration accounts. Michael Gable, one of the executors, filed his separate administration account on the 24th January 1859, exhibiting a balance in his hands, as stated in the account, of $6527.57.

This was an action of debt by The Borough of Carlisle against James W. Marshall, trustee for the widow and minor children of Rev. Robert Emory, deceased, to recover a borough tax of $56.42, for the year 1858, on the moneys of the estate in his hands invested at interest.

This was an action on the.case by Jacob Burgey and Samuel Burgey against Samuel Thompson and Cochran Thompson for deceit in the sale of a horse. The declaration was in assumpsit; the defendants pleaded not guilty; and the cause was tried as an action on the. case for deceit. The facts are stated in the charge of the court below.

This was an ejectment by William Brothers and the other heirs of Joseph Brothers, deceased, against James McCurdy, Ellen E. McCurdy, and Eli Price, for a lot of ground on Third street, in Lewistown.

This was an ejectment by Daniel K. Reamy against Nicholas Walker, for a dwelling-house and lot of ground on the south side of the canal basin, in Hollidaysburg.

This was an appeal by Moses Thompson from the decree of the court below, setting apart for the use of the widow of William B. Henderson, deceased, a portion of the real estate of the decedent, purchased by the appellant at sheriff’s sale. On the 7th January 1854, Brooks, Tyson & Rehn recovered a judgment against the firm pf Henderson & Fugate, of which William B. Henderson was a member, for $1723.28.

This was a foreign attachment by Edward Comford against James M. Pfoutz, for $159.20, in which J. B. MeEnally, an execution-creditor of the defendant, was permitted to interplead and take defence; and an issue was awarded to try : 1. Whether any debt, and how much, was due from Pfoutz to the plaintiff, when this suit was brought ? 2. Whether, at the time of commencing the suit, Pfoutz was liable to be sued by foreign attachment?

■ This was an ejectment brought by Mark Sterling, James R. Hendrickson, William B. Curry, and William Larimer, Jr., against Henry Hecker, for a tract of 400 acres of land in Lower Turkey-foot township, Somerset county. Isaac Hugus was subsequently added as a party defendant.

This was an appeal by Andrew M. Sallade, from the decree of the court below distributing the estate of Benneville Keim, in the hands of John Bertolette and Jacob M. Sallade, his assignees in trust for the benefit of creditors. On the 6th September 1856, Benneville Keim made a voluntary assignment of all-his estate to John Bertolette and Jacob M. Sallade, in trust for the benefit of his creditors.

<p>School directors, who vote for a misapplication of the public funds, in payment of a teacher for a period during which he was not employed by the public, are personally liable to the township for the amount so misappropriated.</p> <p>The treasurer of the school fund, who was also a school director, and voted in favour of such payment, cannot shield himself from liability under the warrant of the board of directors.</p> <p>The maxim respondeat superior furnishes no protection to one who is both subordinate and superior.</p>

This was a scire facias on a mechanic’s claim, filed by John Woodward against Jacob Leiby, owner, and -Isaac Blizzard, contractor, for the sum of $45, against a two-story brick warehouse and lot of ground situate in Oakville, in the township of Newton, on the north side of the Cumberland Valley Railroad, for carpenter work done in and about the erection of the said warehouse.

<p>Error to the Common Pleas of Somerset county.</p> <p>This was an action of debt by The Commonwealth of Pennsylvania, for the use of Michael Zimmerman and Frederick Gonder, against Walter F. Fundenburg, administrator de bonis non of Joshua F. Cox, deceased, upon a bond given by'the defendant’s intestate, as one of the sureties of Samuel Kimmel, guardian of the minor children of John Graham, deceased. The parties agreed upon a ease stated, in the nature of a special verdict, in .which the following facts were set forth:—</p> <p>On the 5th December 1837, Samuel Kimmel was appointed by the Orphans’ Court of Somerset county, guardian of the minor children of John Graham, deceased, and gave bond in the usual form, in the sum of $32,000, with Michael Zimmerman, Frederick Gonder, and Absalom Casebeer, since deceased, as his sureties.</p> <p>On the 29th January 1846, Samuel Kimmel filed an account, as guardian, to which exceptions were filed, and the same having been referred to an auditor, a balance of $14,277.02-|- was found to be due to the wards. On the 2d November 1847, a certificate of this balance was entered on the docket of the Court of Common Pleas.</p> <p>On the 3d May 1847, Michael Zimmerman, Frederick Gonder, and Absalom Casebeer, the sureties, presented their petition to the Orphans’ Court, setting forth that Kimmel had received large sums of money, as guardian, for which they were bound, and that he was wasting and mismanaging the estate of his wards, whereby they were likely to suffer loss; and praying the court to direct that the guardian should settle and adjust his account, or give other and further security for the discharge of his duties.</p> <p>On the 6th September 1847, the Orphans’ Court ordered “ that Samuel Kimmel give other and further securityand on the 10th, he gave another bond, in $25,000, with Joshua F. Cox, the defendant’s intestate, and Jacob Lohr, as sureties. „ This bond was in the ordinary form, conditioned for the faithful performance of the duties of the guardian.</p> <p>The gnardian filed a second account on the 7th September 1847, exhibiting a balance in favour of the wards of $15,922.40, which was confirmed by consent. He exhibited another account, which came before the court for confirmation on the 24th February 1852, and resulted in a balance against him, at that time, of $3343.37. This balance was made up in part of items that should have been charged against the guardian in his first account, and for which he was responsible before the date of the second bond.</p> <p>Suit Avas brought by the wards against the sureties on the first bond, and judgment recovered against them on the 15th November 1855; and on this judgment they were compelled to pay the sum of $5032.61, for which this suit was brought. This sum embraced the whole liability before and after the giving of the second bond. If, however, Cox’s liability began only AYith the second bond, it Avas agreed that the amount of moneys received by the guardian, after that date, and not accounted for, was $2462.73.</p> <p>The court below gave judgment for the defendant on the case stated; whereupon the plaintiffs removed the cause to this court, and here assigned the same for error.</p>

This was an action of covenant by William Henry against the administrators of Joshua F. Cox, deceased, to recover damages for the breach of the warranty contained in a deed from Joshua F. Cox and wife to William Henry, the plaintiff, dated the 14th December 1839, for a tract of land in Somerset county.

This was an action of assumpsit by Gillian G. Lint against Jacob D. Miller, executor, and Elizabeth Miller, executrix of David Miller, deceased, to recover the costs of an ejectment by the plaintiff against one Jacob Brown, which, it was alleged, Miller defended as Brown’s landlord.

<p>Error to the Common Pleas of Centre county.</p> <p>This was an action of debt by William B. Henderson, for the use of John C. Henderson, against Adam B. Barlow and James Ardery, administrators of James Ardery, deceased, upon a single bill for $250, dated the 5th March 1852, executed by George Glenn, as principal, and James Ardery, the defendant’s intestate, as surety, in favour of the plaintiff, payable one year after date. During the progress of the cause, the plaintiff died, and John F. Henderson, his administrator, was substituted.</p> <p>On the 19th May 1852, after the execution of the single bill on which suit was brought, the following agreement was entered into between Glenn and Henderson:—</p> <p>“ This agreement, made this 18th day of May, A. D. 1852, between George Glenn of the one part, and William B. Henderson of the other part, all of Patton township, Centre county, witnesseth that said George Glenn, for and in consideration of the assignment and releases hereinafter mentioned, to be made to him by the said Henderson, hath sold to said Henderson his farm in Huston township, known as the Olumbauch property, together with that part of said farm Glenn purchased from Gratz, but not including that part owned by John McDonald. Henderson to have immediate possession of said farm, excepting the present crop of grain in the ground, which Glenn reserves. Glenn also agrees to pay all the debts of the firm of Henderson & Glenn within one year from the date of this agreement, and from the present time keep Henderson unharmed by any of the debts due or owing by the firm of Henderson & Glenn aforesaid. Glenn also agrees to give Henderson a receipt in full, for his account on the books of Henderson & Glenn. Glenn agrees to make Henderson, his heirs and assigns, a good and sufficient warranty-deed for the above-mentioned farm, in one year from this date, clear of all encumbrances.</p> <p>“ Henderson hereby assigns to George Glenn, as payment for the above premises, all the accounts due or owing, or that may become due on the books of Henderson & Glenn, together with all the notes, judgments, or debts whatsoever that may be due or owing, or that may become due to the said Henderson & Glenn, so that George Glenn may lawfully collect the same as his own individual property. Henderson further agrees to receipt for and release to the said George Glenn all the judgments, bonds, notes, book-accounts, or claims of any nature whatsoever he now has against the said George Glenn on the prothonotary’s docket, or on any justice’s docket, or elsewhere, as soon as the said Glenn shall pay the debts of the firm of Henderson & Glenn aforesaid, and execute and deliver to said Henderson a good and sufficient warranty-deed, clear of all encumbrances, for the farm above mentioned : in virtue whereof, we have hereunto set our hands and seals, May 19th 1852.”</p> <p>“George Glenn. [seal.]</p> <p>“ W. B. Henderson, [seal.]</p> <p>“Witness, D. I. Pruner.”</p> <p>It was admitted, that the single bill in question was one of the claims referred to in the agreement; which Henderson was to release on payment by Glenn of the firm debts, and the execution of a conveyance for the land.</p> <p>The plaintiff offered to prove that Glenn not only failed to pay the debts of the firm of’ Henderson & Glenn, and to convey the real estate, but that the firm debts had been collected from Henderson, and the proceeds of the real estate, sold on execution, had been applied to the debts of Glenn. The court below ruled out this evidence, and instructed the jury, that “if the note in question was one of the notes described in the agreement, then Henderson had postponed his right to recover.”</p> <p>To this instruction. 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 an ejectment by Ira A. Sabins against Thomas A. McGhee, John McGhee, and Philip McGhee, for part of a tract of land in Bell township, surveyed in the name of Ira A. Sabins. The plaintiff claimed by virtue of his improvement right, with a warrant and survey thereon, made on the 15th August 1848.

This was an appeal by the York Bank from the decree of the court below distributing the proceeds of a sheriff’s sale of the real estate of John A. Nevin, under an execution against the firm of Pflieger, Hess & Nevin.

This was an ejectment by A. J. Colborn against Barney Trimpey, for 81 acres of land, in Northampton township. On the 20th June 1835, Henry Poorbaugh conveyed the premises in controversy to Jacob Sweitzer in fee; and on the 27th September 1847, a judgment was obtained by Christian Schrack’s administrators, for the use of A. H. Philson, against Jacob Sweitzer, for $56.50, which became a lien upon the premises.

This was an appeal by Ephraim Gangwere, from the decree of the court below, distributing the proceeds of a sheriff’s sale of his real estate, in disregard of his claim… Held: that the defendant, whose property was sold on a levari facias sur mortgage, could not obtain the benefit of the Act of 1849, because that act. contemplated the claim of that benefit only under a levy and sale upon judgment obtained on contract, which, strictly speaking, a judgment on a mortgage is not.

<p>Error to the Common Pleas of Berks county.</p> <p>This was an action of assumpsit by Henry Reich against John Eehr. The summons was issued on the 18th May 1859, and on the same day, the plaintiff filed a declaration, and entered a rule of reference, the time for choosing arbitrators being fixed on the 4th June.</p> <p>The rule of reference was served on the defendant, on the 19th May; but the summons was not served by the sheriff until the 23d. On the 4th June, arbitrators were chosen, in the absence of the defendant; and on the same day, notice of the meeting of 'the arbitrators on the 23d was served upon him. On the 23d, the arbitrators met, and made an award in favour of the plaintiff, for $197.70; which was filed the same day, and judgment entered thereon. The defendant did not appear before the arbitrators.</p> <p>On the 14th July 1859, a writ of fieri facias was issued; and on the same day, the defendant applied for and obtained a rule on the plaintiff to show cause why the judgment should not be vacated, and the award and execution set aside. The court below (Jones, P. J.) subsequently discharged the rule, and delivered the following opinion:—</p> <p>“ The 8th section of the arbitration law of 1836 permits either party in any civil suit to enter a rule of reference for the trial of all matters in variance in the suit between the parties. And the only limitation of time at which this can be done, is that contained in the 9th section, where the plaintiff is forbidden to enter such rule until after declaration filed by him.</p> <p>“ A civil suit does not merely begin to have a legal status from the service of the writ upon the defendant. It is a suit from the moment of its entry; certainly from the moment of the exitus of the writ into the hands of the sheriff. The Act of 1810 spoke of ‘ the entry of the suit’ as the point of time, after which either party might arbitrate; and the Act of 1836 does not essentially alter that. After the writ is sued out, there is a civil suit in existence, with one party in court, and the other summoned or to he summoned to appear there. The party who sues out the writ and files his declaration, is in a condition to arbitrate, before the writ is served. He cannot compel the sheriff to serve the writ forthwith, though the promptest recourse to arbitration may be of vital importance to him. It is enough for the sheriff, if he serves the writ ten days before its return day. Must a plaintiff lie idle during a long vacation, for months, until it suits the sheriff to serve the writ? We think not. Having done all he could do, in suing out his writ and filing his narr., and being a party in a civil suit, he may proceed to arbitrate.</p> <p>“ The service of the rule to arbitrate may be the first notice of, the pendency of the action to the defendant; but it is notice, and is not to be despised, because the writ has not yet been served. Why should not the defendant appear and take part in the choice of arbitrators, under a proviso as to any error in the writ or in the service of the writ, saving to himself all advantages accruing therefrom ? If the writ, should not be served at all, or not be served according to law, all the proceedings would fall to the ground; so if it should be quashed. The defendant could lose nothing. ’ He would have all the advantage to b.e derived from such-irregularities or defects of procedure. If there is no defect in the service, or in the writ, he is not damnified, because for him there, has been an action or suit pending from the very impetration of the writ — all of whose subsequent steps to bring him into court have been regularly and fitly taken, and have relation back to the suing out of the original.</p> <p>“ But here the writ was served four days after the service of the rule, and many days before the time designated in the rule for choosing the arbitrators. Before that day, the defendant had the amplest proof that there was a suit in which he was a party in court; and it was his misfortune, if he did not conceive he was called upon to take notice of the proceedings which were going forward. We cannot help him. The rule to show cause why the fi. fa. should hot be set aside is discharged, and the plaintiff is at liberty to proceed with his execution.”</p> <p>The defendant, thereupon, sued out this writ, and here assigned for error, that the court erred in refusing to vacate the judgment, and set aside the award and execution.</p>

This was an appeal by Mary W. Anderson, the widow of Dr. James Anderson, deceased, from the decree of the court below, rejecting her claim to dower in the estate of her deceased husband,… Held: not only to suspend, but entirely to extinguish dower: also, Preston v. J ones, 9 Barr 460; Oauffman v. Cauffman, 17 8. B. 16; Light v. Light, 9 Hands 412. In some of the cases, the act of acceptance was coupled with long acquiescence, or delay in challenging the inconsistent right.

Error, to the Common Pleas of- FranJclin county. This, was an action of assumpsit by The Hagerstown Savings Bank against William McGrath, and forty-two other persons, doing business in the name of the Loudon Savings Fund Society, on a certificate of deposit, of which the following is a copy: — ■ “No. 451.

This was an action of assumpsit by James Beilly against Jacob V. B. Hunter, in which the plaintiff filed a copy of a due-bill, as his cause of action, as follows:— ‘ “ Sally Ann Furnace, June 11, 1858. “Balance due James Beilly, at settlement, $345.33. “ Jacob V. B. Huntjsr, “ per Levi H. Springer.” Endorsed — “ Paid $190.00. July 6th 1858.” David Weiser filed the following affidavit of defence to the plaintiff’s claim, under the Act of 21st April 1852, Pamph.

<p>The occasional cutting of timber and boiling of sugar on the land of another, by the occupier of an adjoining tract, and the extension o'f his lines so as to include a small portion of the meadow-land, is not such a possession as will give title under the statute of limitations.</p> <p>Washabaugh v. Entriken, 10 Casey 74, affirmed.</p> <p>In such cases, the statute of limitations only extends to the ground actually included in the interference. The principle decided in Ament’s Executor v. Wolf, 9 Casey 331, has no application to such a case.</p> <p>A parol sale of lands, without payment of the purchase-money, and unaccompanied by exclusive and continued possession in the vendee, is within the statute of frauds, and confers no title to the land.</p> <p>One having title to a tract of land, which was in dispute as to a part of it,is not estopped from asserting such title, by paying a portion of the fees for patenting the tract by an adverse claimant, and taking a release for the undisputed portion of the land.</p> <p>There can be no title by estoppel, where the contract to which the alleged estoppel is sought to be applied is within the statute of frauds, and can pass no title.</p>

This was an action of debt by John Brubaker, for the use of Robert C.. Gallagher, against William Sherlock (who was not served with process) and William Okeson, upon a joint and several single bill, of which the following is a copy:— “ $400. Fifteen months after date, we or [either] of ris do promise to pay to John Brubaker the sum of four hundred dollars, without defalcation, for value received, with interest from date.

Error, to the Common Pleas of Dauphin county. Held: that mere omission to bring a suit, or make a settlement by public officers, will not discharge sureties in an official bond: 9 Whart. 720; 12 Id. 505; 3 Mason 446; 1 Peters 325; 11 Whart. 184. And even when money was paid out which should have been retained in the state treasury, the surety was not thereby discharged: 1 Harris 617.

This was an action of debt by William K. Loose against William Loose, as endorsee of two promissory notes, of which the following are copies:— $1339.40. One day after date, I promise to pay to William Loose, or order, for value received, the sum of thirteen hundred thirty-nine dollars and forty cents, without defalcation. Philadelphia, October 4th 1858. Jacob Loose. Endorsed — William Loose, Wm. H. Hibshman. $269.64.