Volume 37 — Pennsylvania State Reports

<p>This was an appeal from the Orphans’ Court of Chester county,confirming the report of the auditor, on the account of Joseph Guthrie, guardian of the minor children of Elizabeth Bones, deceased.</p> <p>The case was this: Elizabeth Bones died in January 1848, leaving her husband, James Bones, and six minor children, in possession of a messuage and tract of land which her father, Robert Harris, deceased, by his will, dated March 6th 1847, had devised as follows :—</p> <p>“ I give and bequeath to my daughter Elizabeth, wife of James Bones, the use and life estate, in her own proper person (but without power to convey the same to any other person for any period or term), of all my messuage, tenement, and lot or tract of land, whereon she now resides with her husband, in the township of Brandywine, &c., containing fifty acres; and at the decease of my said daughter Elizabeth, the said lot or tract of land and appurtenances, I hereby bequeath to such of her children or their heirs as may survive her as tenants in common, that is, the child or children of any deceased child of hers, shall hold the same interest and right that the deceased parent would have held if living.”</p> <p>The children of Mr. and Mrs. Bones were all living at the death of Mr. Harris.</p> <p>On the 24th of April 1848, Joseph Guthrie was appointed guardian of the estates of these minors; which appointment was revoked in June 1855. While acting as guardian, Guthrie rented away the property above mentioned, for two years, and for the remainder of the time allowed Mr. Bones and the family to occupy it, under an agreement that he was to support the children for the rent. On his discharge, another guardian was appointed, whereupon Guthrie filed an account charging himself with nothing, but claiming credit for $104 expended by him for the estate.</p> <p>Objection was made, in behalf of the children, to the confirmation of this account, and an auditor was appointed, to whom the matters in controversy were referred. There was no dispute before the auditor as to the estate which Mrs. Bones had in the land; but it was claimed that the accountant should be charged with a reasonable rent for the house and land, from the time of his appointment until his discharge, on the ground that Mr. Bones was of sufficient ability to support his children, without resorting to their property.</p> <p>The auditor accordingly charged the guardian with rent at the rate of $100 per annum, from 1849 to 1854, adding interest,— allowed him credit for certain disbursements and for compensation, and reported a balance of $387.67 in his hands.</p> <p>To this report exceptions were filed by the accountant. The court below, on hearing, dismissed the exceptions, confirmed the report, and directed the accountant to pay over the balance in hands to the persons legally entitled to receive it. Prom this decree Guthrie appealed to this court, assigning for error the confirmation of the auditor’s report, and the refusal to strike out the charge for rent.</p>

<p>Certiorari to tlie Orphans’ Court of Philadelphia.</p> <p>This was an appeal by the executor of Samuel Chew, deceased, from the decree of the Orphans’ Court, confirming the report of the auditor, on the account of Harriet Carrol, administratrix de honis non eum testamento of Maria Chew, deceased.</p> <p>Maria Chew died March 27th 1840, having made a will in which, after sundry bequests and devises, she bequeathed the residue of her property, real and personal, to her sister, Henrietta Chew, “ for her sole and absolute use, control, and enjoyment, without impeachment of waste, during her natural life,” and “ after decease of my said sister, Henrietta Chew, I give, devise, and bequeath my said residuary estate as follows, that is to say: one full equal fourth part to my brother, Benjamin Chew, Sr., for and during his life, and after his decease, or in the event of his dying before me, to the several children of my said brother, their heirs, executors, administrators, and assigns, share and share alike, as tenants in common: should any of the children of my brother be deceased, leaving children, their children so left shall stand in the place of, and represent their parents.”</p> <p>This was followed by devises of the remaining three-fourths of the residuary estate, in trust for her three sisters and their children, with the same provisions in case of their decease, leaving children.</p> <p>At the death of Maria Chew, her brother Benjamin and seven children were living. Samuel, one of these children, died August 21st 1841; Benjamin, the brother of testatrix, died April 80th 1844, and Henrietta Chew, the first tenant for life, died March 8th 1848.</p> <p>Samuel Chew left a will in which he directed that all his estate should be invested in the purchase of an annuity for Elizabeth Cummins. His executor claimed a portion of the estate of Maria Chew under her will.</p> <p>The auditor appointed to distribute the fund in the hands of the administratrix, cum testamento annexo, of Maria Chew, reported that the whole of the residuary estate was vested in the executor named in the will, at the death of the testatrix, subject to the life estate of Henrietta Chew, and that it was not the intention of the testatrix to vest the remainder in the children of her brother Benjamin, until the determination of this estate; that the children of her brother, who were living at the death of Henrietta, and the issue of deceased children then living, if any, constitute the class that are entitled to take under the will of Maria Chew; that Samuel Chew, not being within that class, is excluded.</p> <p>The Orphans’ Court confirmed this report, whereupon the executor of Samuel Chew removed the case into this court, and assigned for error the following matters, viz.:—</p> <p>The court erred in affirming the report of the auditor and deciding as follows:</p> <p>“ 1. That the whole of the residuary estate was vested in the executor at the death of the testatrix, subject to the life estate of Henrietta Chew, and that it was not the intention of the testatrix to vest the remainder in the children of her brother, Benjamin, until the determination of the life estate.</p> <p>“ 2. That the children of her (testatrix) brother living at the death of Henrietta, who was the last tenant for life, and the issue of deceased children then living, if any, constitute the class who are entitled to take under the will, and that Samuel Chew, not being within that class, is excluded.</p> <p>“ 3. That Samuel Chew, one of the children of the said Benjamin Chew, was not entitled to share in the residuary estate of the testatrix, because he was not living at the death of Henrietta Chew, the tenant for life, although he survived the testatrix nearly seventeen months.</p> <p>“ 4. That Samuel Chew, one of the children of the said Benjamin Chew, was not entitled to share in the residuary estate of the said testatrix, Maria Chew, deceased.”</p>

<p>Trust Estates, general and special. — Equitable and Legal Titles. — Executed Trusts. — Enlargement of Estates Tail.</p> <p>1. A mere dry trust will not be sustained when the person equitably entitled to any property takes absolutely the entire beneficial interest; and the trustee has no duty to perform, unless the trust be a special one intended to accomplish some object; as, to preserve contingent remainders, protect property for the sole and separate use of married women from the creditors of the cestui que trust. ■</p> <p>2. The law in Pennsylvania strikes down many trusts that are in England considered valid, and treats them as executed, regarding the legal estate as vested in the cestui que trust, where the persons named as trustees have no duties to perform, which require the seisin, or possession, of the estate to be in them, and the persons for whose use the trust was created are sui juris.</p> <p>3. A limitation in a will to one for life, with a power of appointment in favour of the issue of his body, and, in default of such appointment, to such issue, and if he die, leaving no issue of his body, then over, creates an estate tail in the first taker.</p> <p>4. The words “leaving no issue of his body,” in a devise of land, indicates an indefinite failure of issue.</p> <p>5. The word “issue,” in a will, is primarily a word of limitation. 'Where a testator devised one-third of his estate to each of his three children for life, with power of appointment in favour of the issue of his or her body, in default thereof, to said issue, and in default of any issue, to the heirs of the testator, directing the same to be held in trust by his executors, who were directed to sell and invest the property in real estate, and allow the children, from their income therefrom, such money for their support and education as they may think propel-, and also, on their attaining the age of twenty-five, to pay them respectively, during their natural lives, in quarterly instalments, the income of the said real estate, for their respective benefit, it was held, that on the children’s attaining respectively the age of twenty-five, the devise created a complete estate tail in each, clear of the trust, which, by the Act of 1855, is converted into an estate in fee simple.</p> <p>6. A trust is not to be sustained because it is for the sole and separate use of a feme sole, who was unmarried when the will took effect, and there being, at that time, no marriage in immediate contemplation.</p> <p>7. A trust is special, and will not be considered executed until the time at which the full beneficial enjoyment of the interest devised shall vest, which may be postponed until after the cestui que trust attains majority.</p> <p>8. Although in Kush v. Lewis, and Kuhn v. Newman, the court refused to decree a conveyance from the nominal trustee, yet when the nominal trust beclouds the title and embarrasses the rights of alienation, a conveyance will be decreed in accordance with the practice of Courts of Chancery.</p> <p>9. The cases of Kuhn v. Newman, 2 Casey 227, Rush v. Lewis, 9 Harris 72, Steacy v. Rice, 3 Casey 75, and Bush’s Appeal, 9 Casey 85, affirmed.</p>

<p>Amendments to Declaration. — Right of Way by User. — Declarations of Party.</p> <p>1. The rule to he observed in permitting amendments to declarations, or the filing of new counts, is that the cause of action must remain substantially the same. Within this limit, amendments intended to reach the merits of the case, are to be liberally allowed.</p> <p>2. In an action on the case, for obstructing a private way, it is not error to reject evidence of an opinion expressed by one of the parties, as to the extent of his rights, where no one was injured by it.</p> <p>3. Whether a right of way has been acquired, or not, by an uninterrupted user for twenty-one years, is a question for the jury; and where such user is proved they will be justified in presuming it adverse, unless it be rebutted by proof of license or agreement.</p>

<p>Error, to the Court of Oyer and Terminer of Berks county.</p> <p>At the August Term of the Court of Oyer and Terminer for the county of Berks, held August 13th 1860, John Warren was arraigned on an indictment charging him with the murder of a woman who was unknown to the jury; and, on the 17th of August, the jury returned a verdict of guilty of murder in the first degree.</p> <p>Motions were then made for a new trial, and in arrest of judgment, which, on hearing, were overruled, and, on the 27th day of September 1860, he was sentenced to death.</p> <p>This writ of error was, thereupon, applied for and allowed, and the case ordered to be heard at Pittsburgh, on the 21st of November 1860.</p> <p>The errors assigned (all of which had been the subject of exception on the trial) were as follows :—</p> <p>1. The court erred in permitting the Commonwealth to challenge William S. Allgaier, a juror, peremptorily. The said juror, as appears from the record, was called and duly sworn to make true answers to such questions as should be asked him, touching his competency to sit upon said jury. The counsel for the Commonwealth then asked the juror the following question: “Are you from conscience opposed to the punishment of death?” which question the said juror then and there answered in the negative. The counsel for the Commonwealth then challenged the juror peremptorily, which challenge was sustained by the court and the juror excluded from the box.</p> <p>2. The court erred in directing William Rocholl, one of the jurors, to stand aside, until the panel was exhausted. The said juror, as appears from the record, was called and duly sworn to make true answers to such questions as should be asked him, touching his competency to sit upon said jury. The counsel for the Commonwealth then asked the juror the following question: “Are you from conscience opposed to the punishment of death?” which question the said juror answered in the negative. The counsel for the Commonwealth then requested said juror to stand aside until the panel was exhausted. To this the prisoner, by his counsel, objected, but the court overruled the objection and ordered the juror to stand aside until the panel was exhausted.</p> <p>3. The court erred in overruling the question which the prisoner’s counsel proposed to ask Jeremiah Eocht, a witness called by the Commonwealth, viz.: “ Whether Warren was not generally drunk when out of work ?”</p> <p>4. The court erred in overruling the question which the prisoner’s counsel proposed to ask Eayetta Eocht, a witness called by the Commonwealth, viz.: “Whether Warren does not move quicker when drunk than when sober?”</p> <p>5. The court erred in rejecting the offer of prisoner’s counsel to prove by William Kalbach “ that Mrs. Warren came to Kalbach’s at seven o’clock in the morning, before the commission of the homicide, and forbade Kalbachs to sell Warren liquor, tolling them he was drunk and had abused her, and was then on a spree.”</p> <p>6. The court erred in rejecting the offer of prisoner’s counsel to prove by Leah Kalbaeh “ that Mrs. Warren pledged a watch at Kalbach’s some time before, and that Warren got rum on account of it — took it out in liquor.”</p> <p>7. The court erred in rejecting the offer of prisoner’s counsel to prove by Patrick Fagan, “ the peculiar effect that liquor had on the prisoner four years ago; that, when sober, Warren was a quiet and peaceable man, but when he got liquor it had a peculiar effect upon him, making him violent, crazy, and ready to fight his best friend; that the witness could prove from repeated observation that liquor had this peculiar effect upon Warren’s constitution and brain.”</p> <p>8. The court erred in their answer to the prisoner’s fourth point, which was as follows: “ If the jury believe that John Warren was in such a state of mind by drink, or from some other cause, which the jury can deduce from the evidence of his conduct and manner in killing the deceased, as to be unable to form a wilful, deliberate, and premeditated design to kill, then he is guilty of murder in the second degree and not of murder in the first degree.” To which the court answered as follows: “ If the jury believes that the prisoner was in such a state of mind, by drink, as to be unable to form a wilful, deliberate, and premeditated design to kill, then the homicide with which he is charged could not be murder of the first degree.</p> <p>“Voluntary drunkenness is no excuse for the commission of crime, as a general rule. But in certain cases where it becomes material to inquire whether the act was committed deliberately or not deliberately, wilfully or not wilfully, the fact of the party charged with the act being drunk at the time of its commission, has been held to be a circumstance proper to be taken into consideration by the jury. A man may be so drunk as to be incapable of forming any intention, and yet capable of committing great violence. He is not irresponsible, criminally, because of his drunkenness, only in so far as intent is of the essence of crime committed by him when in that state. In a case of murder, if the jury was satisfied of his incapacity of will or of deliberation, growing out of drunkenness at the time of the murder done, it would be its duty to convict only in the second degree. Whether the prisoner was in such a state of mind — was so drunk at the time of the assault made by him upon the deceased, as to be unable to form a wilful, deliberate, and premeditated design to kill her — is a fact to be determined by the jury from the evidence in the case.</p> <p>“ This fourth point presents this inability to form a wilful, deliberate, and premeditated design to kill under another aspect of cause. It is this: [If the jury believe that the prisoner was in such a state of mind from some other cause than drink, which the jury can deduce from the evidence of his conduct and manner in hilling the deceased, as to be unable to form a wilful, deliberate, and premeditated design to kill, then he is guilty of murder in the second degree. We are free to confess that we do not know to what ‘other cause’ this points than to insanity, or to delirium tremens, or to mania a potu, which are forms of insanity produced by drunkenness. It would be a dangerous thing, as wo conceive, for a jury to deduce such conclusions from the conduct and manner of an act of homicide. Barbarity, atrocity, fiendishness, utter disregard of man, publicity of the crime, indifference to its consequences in not seeking flight or concealment, a life of drunkenness, it seems to us, are not elements from which a jury could safely draw so grave a conclusion as that this prisoner from some ‘other cause’ was unable to form a wilful, deliberate, and premeditated design to take the life of the deceased.] It is for the jury, however, to draw conclusions for themselves. The facts are for the jury absolutely and exclusively. The court has no power over the facts of any case. The court may express an opinion upon facts, but that expression of opinion is not to bind the jury. If the jury can draw the deduction from the evidence as to the prisoner’s conduct and manner of killing the deceased, or rather in killing her, that from some ‘other cause’ he was unable to form a wilful, deliberate, and premeditated design to kill her, then he would be guilty of murder in the second degree.”</p> <p>The error alleged in the paragraph above, printed in brackets, is this, that this answer was calculated to mislead the jury, and to produce the impression on their minds, that nothing but absolute drunkenness, at the time of the homicide, would reduce the grade to murder in the second degree. The prisoner was entitled to a clear and distinct answer, which is not given, but an argumentative one, calculated to insure his conviction.</p> <p>9. The court erred in their answer to the prisoner’s sixth point, which is as follows: “Unless it is clearly shown that deliberation was present, or if reasonable doubt of its presence remain, or unless it clearly appears that life was not taken in passion and tumult, or drunkenness, or a deranged state of mind arising from strong drink, the grade is fixed by the presumption of law as murder of the second degree.” To which the court answers as follows: “ The sixth point is also answered in the affirmative. This point is framed upon what is said by the Supreme Court of Pennsylvania in Kelly’s Case, 1 Grant 492. Deliberation must be present in the mind of the slayer to constitute murder in the first degree. That must be clearly shown to be present, and when it is not clearly shown to be present, or where reasonable doubts of its presence remain, the crime is reduced to the grade of murder in the second degree.</p> <p>“ [The drunkenness, or the deranged state of mind arising from drunkenness, which are to have the effect of reducing a homicide, committed when the slayer is drunk or so deranged, to the second degree of murder, must be such drunkenness, or such deranged state of the mind arising from drunkenness, as renders the mind incapable of deliberation.]</p> <p>“ Passion and tumult being the circumstances under which a homicide is committed, if the passion and tumult were such as to negative or to raise a reasonable doubt of the existence of deliberation in the mind of the slayer, or of the intent to take life, they would reduce the grade of the homicide to murder of the second degree.”</p> <p>The error alleged in the paragraph above, printed in brackets, is this, that while the point is nominally affirmed by the court, its effect is explained away, so that the whole effeot was to injure the prisoner’s case with the jury.</p> <p>10. The court erred in answering the prisoner’s eighth point, which was as follows: “If the jury find the killing was the result of sudden passion, caused by any provocation, however slight, acting on a mind shattered by dissipation and long-continued indulgence in strong drink, to such an extent as to render the prisoner unable to master himself and form a cool and deliberate purpose to kill, the prisoner cannot be convicted of murder in the first degree. If any doubts are in the minds of the jury as to this fact, then their verdict must be for the lighter grade.” “Answer. We cannot answer this point as we are requested to do. It assumes a state of facts of which we find nothing in the evidence.”</p> <p>The error alleged is this, that no other motive for the homicide having been shown, the jury had a right to infer provocation, even in the absence of positive evidence. The answer should have been in the affirmative.</p>

<p>Error to tbe Common Pleas of Juniata county</p> <p>This was an action of ejectment by James R. Morrison against John D. Howell, to recover about twenty-four perches of land in Spruce Hill township, Juniata county. The plea was “not guilty.” Under the charge of the court there was a verdict and judgment in favour of defendant. The plaintiff then sued out this writ, and assigned for error the instruction of the court as to the binding obligation of a oonsentable division line which the evidence showed had been made between a former owner of the land and his neighbour, the plaintiff’s vendor; by which the land claimed by the plaintiff had been set off'as the property of the person under whom the defendant held.</p>

<p>Original and Ancillary Guardianship.— Conflict of Jurisdiction.— Accountability of Trustees and their Sureties.</p> <p>1. A committee of the person and estate of a lunatic, appointed by a Court of Common Pleas of Pennsylvania, gave bond with surety to perform his trust. The whole estate being in Ohio, the same person was afterwards appointed guardian of the lunatic, by a Court of Common Pleas of that state. In a suit by the administrator of the lunatic, after his decease, against the surety, to recover a balance found to be in the hands of the committee, on settlement of his account in Pennsylvania, it was held that the appointment in Ohio was hut auxiliary to the previous appointment by the Common Pleas of Pennsylvania, in which court the committee were liable to account.</p> <p>2. The proper time for determining the liability of the committee, for money received under the commission in Ohio, was when his account was settled. It cannot be inquired into, in a collateral action, such as a suit against the surety on the bond. The surety is concluded by the decree of the Court, fixing the amount for which the committee is liable on settlement of his acoount.</p>

<p> Location of Land by Galls in the Survey. </p> <p>1. Although the true location upon the ground of a tract of land returned surveyed, is, ordinarily, a fact for the jury, yet where there are no marks upon the ground, and there is no other evidence of an actual survey than is contained in the return, the true location must be ascertained from the situation of other tracts for which it calls, and the jury are to be governed in the inquiry by legal principles. In such cases, the finding becomes a deduction from rules of law rather than the simple ascertainment of a fact.</p> <p>2. A series of surveys made by one surveyor, upon warrants issued upon the same day, dependent upon each other in succession, calling for each other, and returned to the office at the same time, must be regarded as forming one block, and be located together as a body.</p> <p>3. Where the true location of the tract of land in dispute is to be ascertained by a survey more than sixty years old, and without the aid of marks upon the ground — which must, therefore, be located by its calls for other surveys — it is not error to instruct the jury, that, as a rule applicable to an undisputed state of facts, it cannot be severed from the body of which it was returned a part, and for which it calls, when, by adhering to such body, it answers the greater number of its calls, and preserves the distances, figures, and quantity, even though one of the calls must be entirely disregarded by this rule.</p>

<p>Error to the Common Pleas of Dauphin county.</p> <p>This was an action of assumpsit, brought August 31st 1858, by “The Union Canal Company,” for the use of John Rodman Paul, R. Rundle Smith, and Oscar Thompson, against George Smuller. To a declaration in assumpsit, the pleas of non assumpsit, payment, and set-off, were entered by defendant; and on the issue thus made up, the parties went to trial.</p> <p>Smuller was collector of tolls for “ The Union Canal Company,” at Middletown, to which office he had been appointed by the company, but resigned on the first of May 1858. At the date of his resignation, he had in his hands, arising from the tolls of 1859, the sum of $4.41. There was also $145.98 due for tolls during his term, which he had not collected. The balance of the sum claimed in the suit, came into his hands in this way. Joseph Chamberlain had a judgment against the company, for about $14,000, which was cancelled by a partial payment in cash, and by three notes of the company due at different dates. To pay one of these notes, which had been protested, a resolution of the Board was passed in December 1857, by which the “ collector at Middletown” was directed to pay $500 on account thereof, promptly, and to apply to it one-half of his weekly receipts from the opening of the navigation in 1858, until June. Under this resolution he received and paid over, on said note, the sum of $1830.78, being the one-half of his weekly receipts, less two cents, the other half having been paid to the company.</p> <p>Prom his successor, Mr. Snavely, who was also appointed by the comnany, he received, at different times, $3290.79, out of which he paid on the Chamberlain note, $2868.79, retaining the balance of $427.65, which, with the two ,cents above mentioned, amounted to $427.67.</p> <p>Under a contract made with a firm, of which Smuller was a partner, for work on the canal, certain notes had been issued by the company, — one of which (for $1000) was in his hands at the time of the trial of this cause, and was offered by him as a set-off against the claim which the company had against him, for the money in his hartds as above stated. The plaintiffs, who were mortgagees ajra trustees of the company, under a mortgage dated Octobm' 28th 1857, a deed to them dated December 8th 1857, andean Act of Assembly validating these instruments, resisted this set-off.</p> <p>The court below instructed the jury that the defendant was not liable for the $145.98 which he had omitted to collect during his term, because it had been assigned to certain creditors of the company, of which the persons from whom it was due had notice, and, consequently, refused to pay to the collector. But the set-off claimed by the defendant was disallowed, and judgment entered in favour of the plaintiff, on a verdict for the sum which the defendant admitted was in his hands, with interest, whereupon the defendant sued out this writ, and assigned for error:—</p> <p>1. That the court erred in deciding that the note given in evidence by the defendant for $1000, dated Philadelphia, March 15, 1856, payable to the order of O. Thompson, Treasurer, two years after the date thereof, and by him endorsed to the said defendant and his copartners, for the enlargement and completion of the canal of the plaintiffs from Lebanon to Reading, could not “ be set off against either of the sums received by the defendant, but he must come in pro rata with other creditors for his share of the funds of the company, and at the same time with others in like situation.” No notice being taken in these mortgages, or assignment, of the $200,000 of notes issued to said contractors; no provision made therein for the payment of said notes, either in whole or pro rata, all other debts being preferred, to their entire exclusion.</p> <p>2. The court erred in instructing the jury that “ the defendant came into possession of every dollar of this money under the authority or appointment of the assignees of the Union Canal Company, and cannot, after so receiving the fund, deny their power, and say I will appropriate the money to the payment of my note, to the exclusion of other creditors provided for in the assignment.” When in fact not one dollar of the said money came into the possession of the defendant by the authority or appointment of the said mortgagees or assignees ; nor was there a scintilla of proof in the case warranting such instruction. The said sum of $4.41 being received by him as Collector of Tolls of the Union Canal Company, by virtue of his appointment as such collector by the Board of Directors of the said company; the residue of the money being received by him from Jacob Snavely; neither of these sums coming into his possession by virtue of the authority or appointment of the said assignees or mortgagees.</p> <p>3. The court erred in deciding that as “ the sum of $>4.41 was received by defendant in a fiduciary capacity as toll gatherer for the plaintiffs, there can be no set-off against a claim received by a trustee, as such, so as to change his relations with, or give him an advantage over his cestui que trust, and therefore the defendant cannot set off the note given in evidence against this item of plaintiffs’ claim.”</p>

This was an appeal by Kramer & Rahm and Sellers & Co., from the decree of the Common Pleas of Blair county, confirming the report of auditors appointed to distribute the money in court, made on the sale of certain personal property attached under a judgment of Henry S. King, against Elias Baker.

Tbis was an action of ejectment brought by Benjamin Mishler and Emanuel Shober against Melchior Deitzler, John Shaeffer, David Hostetter, John Hostetter, Daniel Brandt, and William Gleim, to recover the one undivided sixth part of twelve hundred acres of land in Elizabeth township, Lancaster county.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an action of assumpsit brought by Abraham S. Hackman against John G. Miles and Michael Berry, executors of Peter Shoenberger, deceased, to recover the sum of $5000 with interest, on an alleged contract with said deceased.</p> <p>The case was this: — George Shoenberger was owner of part of Huntingdon Eurnace. He devised it with other property to his two heirs, Dr. Peter Shoenberger and Mrs. Barbara Hackman. Dr. Shoenberger, in 1882, bargained with Mrs. Hackman’s husband (by articles) to purchase his interest for $13,000. A deed was prepared in that summer, executed by Hackman and wife (she not having signed the article of agreement), and sent by H. Musselman, with instructions from Hackman to deliver it to Shoenberger if he paid the purchase-money agreed on. Shoenberger refused to take the deed or pay the money; told Mussel-man to tell Hackman so, and return him the deed with advice not to sell.</p> <p>Musselman returned the deed to Mr. and Mrs. Hackman, and told them what Shoenberger had said. Soon after, in the autumn of 1832, Mrs. Hackman died. In the summer of 1833, Shoenberger called at Hackman’s, in Lancaster county, and offered $8000 for the deed. Hackman agreed to this, got the deed and delivered it to him. Thirteen years afterwards, or more, Hackman died, and his wife’s heirs, viz. Abraham S. Hackman, Maria Zook, Elizabeth Bowman, and Anna Musselman, claimed her interest in the Huntingdon Furnace property, as not passing by the deed to Shoenberger. Two of the heirs brought ejectment to recover possession, and served the writs on the tenants in possession, about twenty in number.. Ur. Shoenberger was made defendant, but being out of the county, was not served, and never appeared or took any defence.</p> <p>Shortly after suit brought, Ur. Shoenberger went to the heirs in Lancaster county, and compromised with all of them but one— Mrs. Bowman. The compromise consisted in the heirs agreeing to sign a release to his sons, to whom he said he had sold it, on their paying (through him)1 $1000 then; and he agreeing and undertaking, that if Mrs. Bowman, who refused to settle, recovered or received more for her claim than the $1000, that he, the Uoctor, would pay a sum equal to the difference between the $1000 and the sum thus received or recovered. On this condition the paper was signed. Mrs. Bowman proceeded with her suit, and, on the eve of trial, defendants settled, and paid her $6000. A. S. Hackman, claiming to be made equal to her, brought this suit against the administrators of Ur. Peter Shoenberger, as above stated.</p> <p>To a declaration setting forth the above case in the usual form, the defendants pleaded non assumpserunt, and on this issue the cause was tried.</p> <p>Buring the trial exception was taken by defendants’ counsel to the admission and rejection of evidence ; the defendants also presented several points on which the instruction of the court below was requested, all which are set forth at length in the assignments of error. The jury, under the charge of the court (Long, P. J.), found for the plaintiff $5205.56. A motion was then made in arrest of judgment, which, on hearing before Judge Hayes, was overruled, and judgment entered on the verdict. Whereupon the defendants sued out this writ, and assigned for error the following matters, to wit:—</p> <p>1. The court erred in admitting the evidence of Jacob Souder “ that about the year 1850 he was sent for and went to the house now of Henry Shaffner, and there met Ur. Shoenberger, Mr. Hackman being present. That Dr. Shoenberger told him that he wished him to take the acknowledgment of Hackman and wife to a paper which he produced, and said it was a release of Hackman’s interest in his mother’s estate in Huntingdon county. He said the condition on which it was to be signed was, that if Mrs. Bowman (sister of plaintiff) should recover more than $1000 for her share of the estate, by suit or compromise, he, the said Shoenberger, was to make plaintiff equal to what she recovered, to pay the difference between $1000 and what she might get, and that on that condition Hackman and his wife executed the paper and gave it to Shoenberger;” the said evidence not corresponding with the allegata in the declaration.</p> <p>2. The court erred in admitting Jacob Souder to testify to the execution of a supposed release of A. S. Hackman and wife, not produced on the trial.</p> <p>3. The court erred in rejecting the copy of the articles of agreement between Abraham Hackman and Dr. Peter Shoenberger, purporting to bear date the--, proved by Henry Musselman, and admitted to be in the handwriting of Judge Grlonninger, and with whom he proved the original had been left.</p> <p>4. In instructing the jury [in reference to the effect of the execution, acknowledgment, and delivery to Henry Musselman, by Abraham Hackman and wife, of their deed, to Dr. Shoenberger] as follows, to wit: “ If this deed was not accepted when tendered before the death of Mrs. Hackman, but was brought back and handed to Abraham Hackman, one of the grantors, and if before Dr. Shoenberger accepted of it, Mrs. Hackman died, which, according to the testimony, was the case, such deed obtained after the death of Mrs. Hackman, did not convey her interest in the estate mentioned in the deed, although it may have been executed by her during her lifetime.”</p> <p>5. In instructing the jury (in answer to the 1st, 2d, and 3d points put to the court by the defendants’ counsel) as follows:— “ If the jury are satisfied from the testimony, that a controversy existed between the parties in relation to the Huntingdon Purnace, and that the plaintiff claimed an interest in that property, and a compromise was entered into between the parties, by which the claim was relinquished by the plaintiff; and, in pursuance of such compromise released such interest, and that then the defendants’ testator, in consideration of such release, entered into an agreement, upon which this suit is predicated, by which he stipulated and agreed, upon the happening of certain contingencies, to pay the plaintiff a certain amount, and those contingencies have happened, then there can he a recovery had in this case;” thus, in view of the averments in the declaration, leaving it. altogether uncertain who are intended to be included in the terra “parties,” and to whom, the claim of the plaintiff was “relinquished,” or to whom, his “interest” was released, or upon the “happening” of what “contingencies” a recovery could be had in favour of the plaintiff.</p> <p>6. In instructing the |ury (in answer to the 4th, 5th, and 6th points put to the court on the part of the defendants) as follows: “ I am of the opinion that if you believe from the testimony that the agreement entered into between the plaintiff and Dr. Shoenberger at the time the paper or release referred to was given, that Dr. Shoenberger agreed, that if at any time thereafter any one of the other heirs of Mrs. Hackman should receive or recover for their share of said real estate, for which the release was given, any greater or larger sum than the sum of $1000 paid to the plaintiff, the same amount of such excess should be paid to the plaintiff by the defendants’ testator, then this action can be maintained ;” thus overlooking the only testimony that had been given of the specific contract made between the plaintiff and the defendants’ testator on the trial, and putting to the jury a hypothetical proposition, almost in the words of the declaration, without any evidence to support its specific averments; or, in other words, allowing the averments to be proved by assumption without evidence, and against the specific evidence given, bearing upon the precise point in issue.</p> <p>7. In answering the said 4th, 5th, and 6th points in the negative, by saying, “ neither am I of the opinion that a failure to prove the facts or matter mentioned in the 4th, 5th, and 6th points will bar the plaintiff from recovering in this action.”</p> <p>8. In instructing the jury, in answer to the 7th point put by the defendants’ counsel, as follows, viz.: “ I do not consider it necessary that before the plaintiff can recover in this case, that it was necessary to prove the release of the plaintiff’s rights or claims, by the proof and production of the same on this trial; this action is not founded, as I conceive, upon the release, or anything contained therein, but upon an agreement independent of that release, and that such release was given in part consideration of such agreement, and was merely part performance of the same.”</p> <p>9. In answering in the negative the 8th point put to the court by the defendants’ counsel, which point was as follows: “ The court is further requested to charge the jury that the plaintiff is not entitled to recover against the defendants according to the allegations in his declaration,” thereby instructing the jury in effect that the material averments had all been proved by the evidence, or that it was unnecessary that they should be proved.</p> <p>10. In answering, in substance, in the negative, the 9th point of the defendants, which point was as follows: “ That the plaintiff has not proved facts to enable him to recover against the defendants, according to the averments in his declaration,” and in saying to the jury, in answer thereto, as follows: “ The gist of this action is the alleged agreement entered into by Dr. Shoenberger with the plaintiff, upon his obtaining from the plaintiff- his release for his interest in the Huntingdon Furnace property. If this agreement, as alleged, has been proven by the testimony, then the averments or inducements set forth in the declaration, and which have not been proven, are not material to enable the plaintiff to recover.”</p> <p>11. In saying to the jury in answer to the 1st,-2d, and 3d points propounded by the defendants’ counsel in the first clause of the court’s answer to said points, as follows : “ In this case I am of the opinion that it was not necessary for the plaintiff to prove that he and defendants’ testator claimed as joint owners the Huntingdon Furnace, nor do I deem it necessary that it should have been proven that the defendants’ testator, as a claimant, entered into a controversy (compromise) with the plaintiff with regard to their respective rights, and paid to the plaintiff the sum of one thousand dollars for the release, and that he was negotiating for' himself,” thereby instructing the jury that it was not necessary for the plaintiff to prove the averments in the declaration that the plaintiff claimed to be owner jointly with Maria Zook, Elizabeth Bowman, and Mrs. Musselman, of the one-eighth part of the real estate mentioned, and that the said Dr. Peter Shoenberger, now deceased, and his assigns claimed to own the same and the other undivided seven-eighths of said property, and that a controversy arose between the said parties relative to the rights of each of them.</p> <p>12. The court erred in overruling the motion in arrest of judgment, and in rendering judgment on the verdict in favour of the plaintiff.</p>

<p>Appeal from the decree of the Orphans’ Court of Lebanon county, directing the sale of certain real estate, late the property of Leonard Grenawalt, deceased.</p> <p>By the last will and testament of Leonard Grenawalt, deceased, he (inter alia) devised his three houses and a part of a lot in Lebanon, to his son Samuel, in fee, subject to the right of his daughter Maria, to “use, occupy and enjoy, and receive the rents, issues, and profits, of one of the houses and part of the lot (describing it) for life; also subject to the payment to her, annually, of $60, with good and sufficient boarding, free of chargeadding, that if she could not live comfortably and peaceably with Samuel, he should pay her boarding with her sister or brother, or their children.</p> <p>The will provided further, that if Samuel’s only son, Calvin, should survive his father, and die without issue, then the estate devised to Samuel, was to descend to the testator’s children, Josiah Grenawalt and Sarah Fichthorn, subject to the same reservation for Maria; and if Samuel should leave a widow surviving Calvin, then .subject to an estate for life in her, and the rights of Maria, as above stated; but if Samuel should have other children, then absolutely to them, subject to the reservation for Maria.</p> <p>The testator also bequeathed to his daughter Sarah, $1050, to be paid by any “ balance in the hands of his executors, out of the proceeds of real and personal estate herein directed to be sold, after expenses and debts are paid,” the deficiency to be made up by his two sons, Josiah and Samuel.</p> <p>He then, in express terms, gave to Maria the matters reserved in the devise to Samuel.</p> <p>Samuel and Josiah were named as executors, and filed separate accounts, which were not finally adjusted when this proceeding was commenced.</p> <p>On the 7th of November 1859, Samuel Grenawalt presented his petition to the Orphans' Court, reciting the devises and legacies above mentioned. He averred that there was due to the heirs of Sarah Eichthorn, $275, and to the heirs of John Grenawalt, $25, and that there were claims against the property for curbing, &c., for about $300; that the property was out of repair and unproductive; and that the interest of all concerned, required that the whole or part of it should be sold to pay the debts, and make the necessary repairs: and praying for an order to sell a portion (describing it) for this purpose.</p> <p>This petition was answered by Maria and Josiah, who opposed the application, averring that the indebtedness was not fairly stated, that part was barred by the Statute of Limitations, and the rent overrated; and objecting to any interference with the life estate of Maria, and to a sale of property burdened with a life estate: whereupon an auditor was appointed to examine into the expediency and necessity of the sale as prayed for.</p> <p>The auditor made a report in favour of awarding the order of sale. This was followed by the written assent of M. Eichthorn — the devisee of Sarah Eichthorn, of Maria Grenawalt, and of Calvin Grenawalt; leaving Joseph Grenawalt as the only opposing party.</p> <p>On the 10th of January 1860, the order of sale was awarded; and afterwards, but before the order issued, a bond with sureties approved by the court, was given by Samuel for the proper distribution of the proceeds of sale.</p> <p>This appeal was then taken by Josiah Grenawalt, who assigned, for error, the following matters, to wit:—</p> <p>1. The court erred in awarding an order of sale, as prayed for by the petitioner.</p> <p>2. In not requiring a proper bond to be filed before the order of the sale issued.</p> <p>3. In not protecting, by the terms of the order, the interests of the tenant for life and of the reversioners.</p>

In equity. — Appeal from tbe Common Pleas of Lebanon county. This was a proceeding in equity in the Common Pleas of Lebanon county, by Joseph Gr. Heilman against “ The Union Canal Company” of Pennsylvania, J. Rodman Paul, R. Rundle Smith, and Oscar Thompson, praying for an injunction to restrain them from diverting and using the water of the Quitapahilla Creek, and for general relief.

This was an amicable action in the Common Pleas of Berks county, in which. George Stoner and Catharine his wife were plaintiffs, and Nathan Young was defendant; and in which there was a case stated for the opinion and judgment of the court, in the nature of a special verdict.

John Oathcart was indicted, convicted, and sentenced to death, for the murder of his wife, in the Court of Oyer and Terminer of Clearfield county. The indictment contained but one count, and was drawn up in accordance with the provisions of the revised criminal code of 1860. The trial and conviction took place at September Term, 1860, followed by motions for a new trial and in arrest of judgment.

<p>Title by Occupancy. — Nonpayment of Taxes by Occupant.</p> <p>1. Evidence of the customary use of wood-land, as by taking firewood and lumber therefrom, will not avail to destroy a valid title in another, unless accompanied by proof of actual possession by residence or cultivation of part of the tract to which the woodland belongs, within the interference under colour of title, or by marked boundaries taken and maintained for twenty-one years.</p> <p>2. Where a plaintiff, claiming by twenty-one years’ adverse possession, brought ejectment in 1850, and the defendant proved that no taxes were paid by the plaintiff, under his title for the years 1829, 1830, and 1831, within twenty-one years, such non-payment of taxes was held not to be conclusive against him.</p>

<p>Appeal from the Orphans’ Court of Columbia county.</p> <p>This was an appeal by the executors of Henry Follmer, who was the surviving and accounting executor of George Follmer, deceased, from the decree of the Orphans’ Court of Columbia county, confirming the report of the auditor appointed to make distribution of a balance, which, it was averred, remained in the hands of said Henry Eollmer, at his death.</p> <p>George Follmer died in the year 1830, leaving a will, which was regularly proven, and letters testamentary issued thereupon to Henry Eollmer and Andrew Eshback, who were named therein as executors.</p> <p>Previous to this he had conveyed to five of his children, separate parcels of his real estate, leaving with each of them the sum of $1800, “to be accounted for after his death,” and taking, from each, bonds and mortgages for the balance of the purchase-money. The testator had ten children, all of whom, except two, were living, and of full age, at the time of his death.</p> <p>Henry Eollmer, as surviving executor, prepared his account, showing for distribution under the will, a balance of $10,813.81!.</p> <p>The heirs met several times at the house of the executor for settlement. Each of those who had received land, were charged with $1300, which they owed the estate, without dissent or objection. The heirs were then paid in the presence of each other, until they had all received an equal share out of the estate.</p> <p>After this, on the 17th of March 1847, Henry Follmer filed his account as above stated, showing the amount that had been in his hands, for distribution, and that the whole sum had been divided among, and paid over to, the heirs: which account was confirmed by the court, without objection.</p> <p>On the 17th of August 1858, a petition was presented to the Orphans’ Court, by A. E. Nowland and John Nowland, administrators of Elizabeth Nowland, deceased, who was a daughter of George Eollmer, the testator, praying for the appointment of an auditor, to make distribution of the balance of $10,813.81!, which they averred was in the hands of Henry Eollmer, at the time of his death.</p> <p>An auditor was accordingly appointed, who reported a distribution among the ten children of the deceased, or their representatives, charging each of them with the payments which had been made by the accountant. This distribution was based on the first and second items of the will of the deceased, and appeared to be in accordance with its provisions, but differed very materially from the distribution which had been made by the executor, and filed with his account, on the 17th March 1847.</p> <p>Exceptions were filed to this report, by the executors of Henry Eollmer, but the court overruled them, and confirmed the report of the auditor: whereupon the executors took this appeal, and assigned for error here that the court erred in confirming the report of the auditor.</p>

<p> Claim of Mechanics’ and Material-Men, must conform to Requirements of Statute. </p> <p>1. The lien of a mechanic is a statutory privilege, not a common law right. To secure the benefits of the statute, its requirements must be strictly complied with.</p> <p>2. If a claim filed for work done, &c., under a bargain with the contractor, not being the owner, omit the contractor's name, it is a fatal defect. The omission is not cured, as against lien-creditors, by a subsequent confession of judgment by the owner. Such judgment takes effect only from its date.</p> <p>3. Where the claim avers that the work was done, &c., “ within six months last past,” the claim is valid, though the hill of particulars does not show this fact affirmatively. It may he made to appear by evidence that the work was done, &c., within the specified time, and is a question of fact for the jury.</p>

<p>Error to tbe Court of Common Pleas of Union county.</p> <p>This was an action on the case for defamation of character, brought in the Common Pleas of Union county, in the name of Peter Hummel and Hannah his wife v. Daniel Rangier. A declaration was filed by plaintiff, to which the plea of “not guilty” was entered.</p> <p>Some time after the suit was brought, P. Hummel — who had not lived with his wife for some years — filed a paper in the cause, denying that he had ever authorized it, and asking the court to mark it “ discontinued,” which was refused. By leave of the court, an additional count was then filed by plaintiff’s counsel.</p> <p>The defendant again made application to the court to mark the case “discontinued,” as per request of P. Hummel. This was again refused. On the same day, the plaintiff moved the court to amend, by striking out the name of Peter Hummel, which was allowed, and a jury was impanelled and sworn under exception, to try the case between Hannah Hummel v. Daniel Rangler.</p> <p>In the course of the trial, a number of exceptions were taken to the admission and rejection of evidence, to the general charge, and to the answers of the court on the points submitted : all of which appear sufficiently in the assignment of error, and in the opinion of this court.</p> <p>The jury found in favour of the plaintiff the sum of $50, and judgment having been entered thereon, the defendant sued out this writ.</p> <p>The errors assigned were: — 1. That the court erred in refusing the discontinuance of the suit.</p> <p>2. In permitting the record to be amended, by striking out the name of the husband, and allowing the suit to proceed in the name of the wife alone.</p> <p>3. In permitting the plaintiff [Mrs. Hummel] to ask the witnesses whom they thought Mr. Rangier had reference to, when he spoke of keeping a miss.</p> <p>4. In allowing the plaintiff [Mrs. Hummel] to offer evidence as to how she had been treated by her husband, and, after admitting this testimony, in refusing to permit the defendant to prove that Mr. Hummel was a quiet, peaceable man.</p> <p>5. In refusing to allow the defendant to call Peter Hummel as a witness : he being willing to testify.</p> <p>6. In deciding that the action could be sustained.</p>

This was an amicable action in covenant, in wbicb William L. Dewart, tbe defendant in error, was plaintiff, and Peter Borrell was defendant.

This was a feigned issue, awarded by the Common Pleas of Northumberland county, to try the validity of a judgment in favour of Peter Henninger, for the use of B. & F. J. Schoch, v. Daniel Haupt, Daniel Long, and John Long.

Ebbob to the Common Pleas of Northumberland county. This was an action of assumpsit, brought by the county of Northumberland v. The Township of Lower Augusta, to recover the amount of a bill paid by the county for the board of an insane person who had been committed to the State Lunatic Asylum, by the Quarter Sessions of Northumberland county.

Error, to the Common Pleas of Northumberland county. This was an action of assumpsit, brought by Jacob Weimer against Ira T. Clement, on a promissory note of defendant for $100, due in twelve months, which was given for a balance due on sale of a canal-boat.

<p>Error to the Common Pleas of Snyder county.</p> <p>This was a feigned issue directed in the name of Dean & Schoch for the use of Nelson Byers, executor of William Byers, against William S. Herrold, by the Common Pleas of Snyder county, for the purpose of trying whether the consideration of a judgment entered in that court, to May Term 1857, No. 60, “ had not, in whole or in part, failed; and, if in part only, what amount the plaintiff was entitled to recover; and, also, whether the matter alleged as a failure of the consideration, had not been settled by the parties, before the confession of the judgment.” The judgment and the note upon which it was entered, were considered as the plaintiff’s declaration, to which the court directed the plea of payment with leave, &c., and the replication of non solvit, to he entered: and on the issue thus made up, the case was tried.</p> <p>Dean & Schoch, who were foundry-men, contracted, in writing, with Herrold to build a steam-engine of a certain power (describing it particularly), and to deliver the same within ninety days from the date of the agreement, and set it up, ready for running, within eight days after delivery. The engine was to be made in a good, workmanlike manner, and warranted to “ run right and do her proper work, for the term of three months, upon condition that she'is properly taken care of.”</p> <p>The price of the engine was to be paid in the following manner, to wit: $300 at the execution of the agreement; $300 in sixty days thereafter; $600 on the day the engine is started; and the remaining $600 in five months thereafter — for which Herrold was to give his note, with the discount added, payable at “ The Bank of Northumberland.”</p> <p>The first payment was made as per agreement; the second was arranged to the satisfaction of the parties; and, on the 3d of June, before the other payments were due, Herrold gave the judgment in controversy, to Dean & Schoch, for $1200, payable six months after date, with interest.</p> <p>This was done to enable Dean & Schoch to raise the funds necessary to finish and set up the engine.</p> <p>The judgment was entered up on the 6th of June 1857, in the name of Dean & Schoch. On the 29th of June 1857, it was purchased by William Byers (now deceased), without calling on Mr. Herrold, but relying on the assurance of George Hill, Esq. (to whom he was referred), that it was all right.</p> <p>About the 8th of July 1857, the engine was set up, and some repairs were made to it by Dean & Schoch; but after this, it appears, no notice of any kind was given to them by Herrold.</p> <p>On3 the 7th of April 1858, in reply to a demand from Byers, for the money due on the judgment, Herrold requested further time.</p> <p>Byers died about the latter part of April 1858, having made a will in which he named his son, Nelson Byers, as his executor.</p> <p>In January 1859, Nelson Byers demanded this money of Herrold, who replied, January 15th 1859, that he would pay it at the May court. This promise was repeated in another letter, dated January 23d 1859, and also, verbally, from time to time (without claiming any deduction or set-off), until a fi. fa. was issued against him, to February Term 1860, to collect the móney due on the judgment, for the use of Nelson Byers, executor of William Byers, deceased.</p> <p>Advised by counsel that his right to make defence, was not affected by the transfer of the judgment to Byers, and averring that the engine was defectively constructed, Herrold made application to Judge Menges to stay the writ. Oil the 26th of March 1859, a rule was granted to open the judgment, which was made absolute by the court, and the feigned issue ordered as above stated.</p> <p>On the trial, a great number of exceptions were taken to the ruling of the court, in admitting or rejecting evidence; and also to the general charge and answers given to the points submitted by counsel.</p> <p>The jury found a verdict in favour of plaintiff for f900, and, judgment being entered thereon, the jdaintiff removed the case to this court.</p> <p>The errors assigned were numerous, and many of them were not adverted to in the argument. All, however, that were deemed important are noticed in the opinion of the court.</p>

This was an action of ejectment brought by Christian Walter against Henry M. Winter, tenant of Mrs. Mary Ann Hartman, to recover a two story frame house and lot situate on the Isle of Que in Snyder county, containing about one quarter of an acre with the appurtenances. By leave of the court, Mrs. Hartman was substituted as party defendant.

Error, to the Court of Common Pleas of Lycoming county. This was an action of trespass, by John McDowell against Daniel S. Rissell, sheriff of Lycoming county, for levying upon and selling, as the property of William McKinney, a quantity of bar-iron, blooms, pig-iron, and old metal, under and by virtue of an execution issued on a judgment in favour of Anderson Harvey. The sale took place May 2d 1857.

This was an action brought before a justice of the peace, by O. Colburn against Prestly Arbuckle and Y. M.aThompson, forwarding and commission merchants, at Erie, and owners of a line of canal-boats from that place to Meadviíle.

<p>Appeal from the Common Pleas of Jefferson county.</p> <p>This was an appeal by Riddle, Pennock & Co., Speering, Good & Co., and Kay & Dehaven, from the decree of the court, distributing the proceeds of the sheriff’s sale of the real estate of Thomas S. Mitchell.</p> <p>The real 'estate of Mitchell had all been sold by the .sheriff, and the proceeds brought into court for distribution. Among the property sold, there was one tract known as the “Wachob. Farm,” which produced $1610, and this was the only portion of the proceeds of sale about which there was any controversy. This farm had been the property of one James Wachob. After his death, Mitchell purchased four undivided eleventh parts of the farm, from four of the eleven heirs of the deceased. After-wards, on proceedings in partition had in the Orphans’ Court, he accepted the land at the valuation, and entered into the following recognisance: — •</p> <p>In the matter of the estate of 1 James Wachob, deceased. V j</p> <p>In the Orphans’ Court of Jefferson county to No. 1 of Feb. Term, a.d. 1853.</p> <p>We Thomas S. Mitchell merchant and James Means merchant of the township of Perry Jefferson County Penn?, acknowledge ourselves to be indebted to the Commonwealth of Pennsylvania in the sum of to be levied of our goods chattels, lands and tenements of each of us, The condition of this recognisance is such that if the above named Thomas S. Mitchell .does well and truly pay to the heirs and legal representatives of said Dec’d the amount of the valuation of the Real Estate as valued by inquest on the 1311 day of April A. d. 1853 then the above recognisance to be void, otherwise to costs included be and remain in full force and virtue.</p> <p>Taken and acknowledged before me \ Thomas S. Mitchell the 15, of September 1854 / James Means</p> <p>Wm. M’Candless 1 Clerk of O. C. j Witness present George Brown</p> <p>Endorsed. Sept. 1854, Filed.</p> <p>About three years after the filing of this recognisance, on the petition of certain of the heirs, a citation was issued, and the recognisance was amended by filling up the blank with the penal sum of $600.</p> <p>The judgments of the appellants against Mitchell, under which his real estate, including this farm, was sold, had been recovered before this amendment. The widow of James Wachob, who was living at the time the levy was made, died before the sheriff’s sale took place.</p> <p>The administrator of Sarah Wachob, the widow, and the unpaid heirs of James Wachob, appeared before the auditor, and claimed out of the proceeds of this farm. the arrears of interest due to the widow, and the shares due the heirs, in preference to the judgment-creditors of Mitchell.</p> <p>The auditor decided that the widow’s third remained a lien on the real estate in the hands of the purchaser, and distributed the fund' in court to the unpaid heirs of James Wachob, and to the creditors of Mitchell.</p> <p>On exceptions filed, the court (MoCalmont, P. J.) reversed the auditor’s report in respect to the lien of the widow’s third, decreed to her administrator the arrears of interest, and to the heirs of James Wachob the shares due to them, under the recognisance, at the widow’s death, and distributed the balance, pro rata, on the judgments of Riddle, Pennoek & Co., Speering, Good & Co., and Kay & Dehaven.</p> <p>From this decree the said judgment-creditors appealed to this court, assigning it for error.</p>

This was a scire facias sur mechanics’ lien, brought in the Common Pleas of Jefferson county, to December Term 1858, No. 32, by John P. Wann against James Summerville. Summerville was the owner of a frame saw-mill, about 27 by 52 feet, which had been roofed and boarded up soon after its erection, and worked, some ten or twelve years, by water-power.

This was an action of debt brought on the official bond of T. S. Mitchell, late sheriff of Jefferson county, in the name of the Commonwealth, for the use of B. E. Lucas.

This was an action of ejectment brought in the court below by Reuben Gr. Wright and B. W. Pier against Mannas Kerr, to recover forty acres of land, more or less, in Heath township, Jefferson county.

<p> Executory Contract for Sale of Lands. </p> <p>1. The intention of the parties to a written agreement, drawn from a,11 its parts, is the criterion to decide whether it operates as a present conveyance or as an executory contract.</p> <p>2. A.n informal instrument, called by the parties an agreement, expressed to be in consideration of future covenants to be done and performed, and with no present sum in hand paid, containing no words of inheritance, and without the formal acknowledgment of a deed, was held to be an executory contract only, and not a present conveyance, though it contained words of present assurance, “ doth and hath by these presents granted, bargained, sold, and for ever quit claim,” &c.</p>

This was an action of debt, brought in the court below by Pardon Sennett, M. R. Barr, Conrad Brown, and J. J. Finley, partners doing business as Sennett, Barr & Co., against The Commonwealth Insurance Company. To a narr. in debt, the defendants filed a special plea, averring concealments and misrepresentation on the part of the plaintiffs, adding the formal pleas of non est factum and nil debet.

This was an action brought by Prentiss Burlingham and others, “trustees of Edinboro’ Academy,” against Alva Robinson, to recover an instalment on his subscription of $50 to the following paper:— “ We the undersigned, citizens of Edinboro’ and vicinity, feeling the necessity of an institution of learning in our midst, affording greater advantages for education than common schools, do hereby agree to pay R. W. Gerrish, Prentiss Burlingham, Josiah J. Compton, Alfred Green, I.…

This was a feigned issue under the Sheriff’s Interpleader Act, to determine the ownership of certain goods which had been taken in execution by the sheriff of Erie county, as the property of James L. M. Young. Abraham Van Winkle, in 1858, recovered a judgment against James L. M. Young, for $ 161.76, on which an execution was issued to May Term, and returned nulla bona.

<p>Reciprocal Rights and Duties of Partners. — Rules for the Appointment of Receiver and awarding Injunctions.</p> <p>1. The jurisdiction and powers of a Court of Chancery are ample to warrant the appointment of a receiver of partnership property, and the issue of an injunction against one partner to prevent his interfering with it. These powers are now vested in the several Courts of Common Pleas of Pennsylvania, by the Acts of Assembly of June 16th 1836, and October 13th 1840.</p> <p>2. During the continuance of a partnership a receiver will not be appointed merely because of a disagreement, nor even because of a quarrel between the partners, unless one behave unrighteously towards the other, as by seeking to exclude him from that control over the concern to which he is entitled hv the articles of partnership, and the nature of the business carried on under it.</p> <p>3. When a partnership has closed, and the parties cannot agree as to the disposition of the partnership property, and especially when the contract has not provided for this, a receiver will be appointed. So, also, where a distribution is intended, and there is any breach of duty, or of the contract of partnership by either party.</p> <p>4. When a partnership formed not for the purpose of buying and selling, but for a business in which the continued ownership of the partnership property is indispensable, has closed, or is about closing, neither of the partners can make an assignment or sale of the joint property even for the payment of creditors, when the other is present and capable of acting in the matter, without his consent; and, in such a case, mere knowledge of the intended sale will not be evidence equivalent to assent.</p> <p>5. An attempt by one party thus to dispose of partnership property will be restrained by injunction, at the suit of the other, and, if required, a receiver will be appointed.</p> <p>6. The reasons which warrant the appointment of a receiver, apply with equal force to justify an injunction.</p>

This was an appeal by William Richards from the decree of the Common Pleas of Crawford county, divorcing him from his wife Elizabeth, allowing alimony, &e. The original subpoena in this case'was issued on the 16th of August 1854, and was regularly served and returned. A jury was called in the case, who, under the instruction of the court, found in favour of the libellant.

This was a foreign attachment in case on assumpsit, brought by James Cunningham, against P. T. Bierne and William Car-land, trading as Carland & Bierne, in which Leon C. Magaw was summoned as garnishee. The case was this: N. Connelly & Son, dealers in ready-made clothing, of Meadville, Pa., who were indebted to Carland & Bierne, of Buffalo, N. Y., in the sum of $1121.88, sold their whole stock to E. Connelly, Sr., a brother of N. Connelly.

This was an action of assumpsit brought by John Harrison against James Bryar, to recover the sum of $1000, with interest, on which the court below entered judgment against the defendant for want of a sufficient affidavit of defence.

<p>Mandamus. — This was an alternative mandamus issued out of the Supreme Court, in the name of the Commonwealth of Pennsylvania, on the relation of E. P. Middleton against the Commissioners of Allegheny county, commanding them to assess and levy a tax to provide for the payment of the interest upon bonds issued by the said county, in payment of its subscription to the capital stock of the “ Chartiers Valley Railroad Company.”</p> <p>The writ was issued while the court was in session in the Eastern District of the Commonwealth, and set forth the incorporation and organization of the Chartiers Valley Railroad Company, the Act of Assembly authorizing “ the Commissioners of Allegheny county, or a majority of them, on the recommendation of the grand jury, to subscribe an amount not exceeding 5000 shares to the capital stock of the said company, in the name and behalf of the county, to borrow money to pay therefor, and to make provision for the payment of the principal and interest of the money so borrowed, as in other cases of loans to corporations;” that the grand jury of the said county, at June Term 1853, recommended the commissioners to subscribe for 300 shares, or $150,000 of the stock of the company; that the said commissioners did subscribe for this number of shares, and in payment of said subscription issued certificates of loan or coupon bonds for $1000 each, dated March 22d 1854, signed by the commissioners with the seal of the county; that the relator purchased, and is possessed in his own right of one of said certificates of loan or coupon bonds; that they were transferred by the said company in conformity with the Act of Assembly relative thereto ; that a large amount of interest is due to the relator and other holders of said bonds, which the county had wholly neglected or refused to pay or make provision for; that it was the duty of the commissioners, under the laws of Pennsylvania, to provide annually for the payment of this interest; that on the 26th of October 1857, a resolution which had been passed for this purpose was revoked and rescinded by them, whereby they have wrongfully refused to provide for the payment of the interest due on said bonds, and the relator thereby rendered unable to recover the amount for a long time due and unpaid to him, and that the said commissioners have declared their unwillingness to provide for the said payment:” and commanding the commissioners of the county, to wit, “William Perkins, John Mcllhenny, and Zacheus Patterson, at their next annual meeting for estimating the probable expenses of the county, to make full and ample provision for raising money to pay the interest on said bonds, or show cause why they cannot do so.”</p> <p>The writ was in the name of the Chief Justice of Pennsylvania, and tested at Philadelphia, February 4th 1859.</p> <p>By a copy of the bond held by the relator, which was attached to his petition, it appeared that they were made payable twenty-five years after date, to the “ Chartiers Valley Railroad Company, or bearer,” with interest at six per cent, per annum.</p> <p>The writ was served February 9th 1859, on Mcllhenny personally and-by copy, on Patterson in the same way, and on Perkins personally, and by delivering the original writ to him.</p> <p>To this writ a return was filed April 18th 1859, setting forth at length the matters of defence, which are all noticed in the opinion of the Supreme Court in this case, and in the cases reported in 8 Casey 218, and 10 Id. 495.</p>

<p>Wife’s separate Property, — Evidence of Ownership. — Competency of Witness.</p> <p>1. Where a married woman claims to be the owner of personal property found by execution-creditors of her husband in the apparent possession of both; it is incumbent on her to rebut the legal presumption of ownership in her husband by competent and satisfactory evidence.</p> <p>2. This may be done in part by written evidence of the fact that the property taken in execution had been purchased with funds contributed by a friend, for the purpose of enabling her to sustain the family through the agency of her husband.</p> <p>3. Though this proof of ownership may be sustained or destroyed by other evidence tending to corroborate or weaken it, yet it cannot be rejected in the first instance if it be part of the transaction. It is a step in the process of elucidating the point in controversy.</p> <p>4. It was therefore held not to be error on the trial of a feigned issue, under the Sheriff’s Interpleader Act, to admit as evidence of such separate ownership by a married woman a writing, duly executed, acknowledged, and recorded, in which a sister of the claimant contributed a specified sum of money to be received, held, and used expressly and solely for the purpose of “ affording relief and support” for the family, and in no manner for the interest of the husband, “ excepting to the extent of the maintenance to he allowed him for his services to be rendered.”</p> <p>5. The grantor in such an instrument having no lien on the property, nor present right to withdraw the fund so contributed, is a competent witness for the wife in such an issue.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of assumpsit brought by Henry and Augustus Kleeber, partners, doing business as H. Kleeber & Brother, v. Catharine W. Parke and Robert W. Parke. Affidavit and copy of note of defendant, for $125, was filed, followed by judgment for want of an affidavit of defence. On a rule granted by the court the judgment was opened. The defendants pleaded non assumpsit, leave, set-off, &c. On leave granted the plaintiffs’ attorney filed additional counts as an amended declaration, on which the parties went to trial.</p> <p>Catharine W. Parke, wife of Robert W. Parke, purchased of plaintiffs a piano and stool for $875, and arranged with them for the giving of three notes for $125 each, signed by herself and her husband, and payable in six, twelve, and eighteen months, which was done.</p> <p>This suit was brought on the first note that fell due. The first declaration was upon this note, to which were added the common money counts. After the pleas above mentioned were entered, the plaintiffs filed these additional counts, viz.:—</p> <p>“ And the plaintiffs further complain for that whereas the said defendants are further indebted to them, in the further sum of $150, for a debt contracted by the said Catharine Parke herself, wife of said R. W. Parke, with and to the plaintiffs.</p> <p>“ And in the further sum of $150, for necessaries furnished by the plaintiffs to the defendants, at their special instance and request, for the maintenance and support of the family of said defendants.”</p> <p>The plaintiffs proved the purchase of the piano, the price, and the arrangement as to these notes, and that she had inherited property to the amount of $9180, and rested.</p> <p>The defendants offered no testimony, but requested the court to charge the jury: — ■</p> <p>1. That while the marriage relation exists, and- the husband lives with his wife and performs his marital duties, the wife has no power to contract debts, except as his agent, and then they ar.e his debts and not hers.</p> <p>2. The Act of 1848 did not confer any new power to contract debts on the part of the wife, by which she may bind herself during coverture, and the proviso “ That nothing in the Act shall protect the property of- such married woman from liability for debts contracted by herself,” refers only to debts contracted by her before marriage, and therefore plaintiff cannot recover in this case against the defendant’s wife.</p> <p>8. The action Cannot be sustained in this case against the wife, because a piano, the article purchased, is not necessary for the support and maintenance of defendants’ family.</p> <p>4. The plaintiffs cannot recover in this case against either defendant, even if R. W. Parke, the husband, might be held liable in an action against him alone.</p> <p>The court (Mellon, P. J.), after charging as requested by the plaintiffs, submitted to the jury whether the article purchased was necessary or not (in considering that question they were instructed to regard the position of the parties in society, and the amount of property owned by either of them), proceeded to answer the points of the defendant.</p> <p>The first and second points were answered in the affirmative. The third point was disposed of by submitting the question to the jury, and instructing them that the article bought must be necessary, and that the debt must be contracted by the wife. The fourth point was answered in the negative. The jury found in favour of the plaintiff, $126.81. Judgment having been entered on the verdict, the defendants sued out this writ, and assigned for error the affirming of the plaintiffs’ points, and in not affirming the defendants’ third and fourth points.</p>

To December Sessions of 1852 a petition was presented, praying for the appointment of viewers to lay out a road leading from a point on the Middleton Road, near Gibson’s mill, to the road leading from Guy’s mill to Pittsburgh. Viewers were thereupon appointed, whose report locating a road, was filed and approved at March Sessions, and confirmed at June Sessions, of 1853.

<p>Clerical Errors in Report of Viewers.— Time of Filing. — Notice to Landowners.— Width, when to he decreed.</p> <p>1. Clerical errors in a report of viewers before appointed to lay out a road, ’ should he referred to the viewers by the court before confirmation.</p> <p>2. Where the petition and order required the viewers to examine and lay out a road from the dwelling-house of George Boyer in Winslow township, to the Stephenson and Morrison road in Washington township, and the return was of a road beginning at the dwelling-house of John Boyer, it was held error to confirm the report.</p> <p>3. A report of viewers which lays out a private road partly over a public road should not be confirmed by the Quarter Sessions.</p> <p>4. The fact that notice was duly served on the landowners, whose damages are about to be assessed by a jury, should appear on the proceedings.</p> <p>5. Road viewers must report to the next term after they are appointed, to allow time for filing exceptions to the report if necessary.</p> <p>6. The width of a road must be fixed by the court when the report of viewers is confirmed, and an omission to do so will be noticed by this court although not assigned for error.</p>

This was an action of debt, brought by Hugh Boyle, and others, against Jacob Byrne, Terence Develin, William A. Noel, Blassus Noel, and Stephen Stearns. The defendants pleaded payment, with leave, §c., to which the replication non solvit was entered; and on this issue the cause was tried. Boyle and others had brought an action of ejectment against B. & W. Noel et al., to December Term 1854, and sued out a writ of estrepement against them to prevent waste.

<p>Error to the Common Pleas of Erie county.</p> <p>The plaintiff in error was the defendant below in a sci. fa. to revive and continue the lien of a judgment. The case was this: — On the 23d of January 1851 a judgment for f300 was entered in the Common Pleas of Erie county, to November Term 1850, No. 329, in favour of William H. Townsend, against Henry Colby who was, at that time, the owner of a tract of land containing about twenty-six acres. On the 27th of December 1853, he conveyed this land to James H. Silverthorn.</p> <p>On the 16th of August 1855, a scire facias to revive and continue the lien of No. 329, November Term 1850, was sued out by Townsend to November Term 1855, No. 33, which was returned nihil as to Colby, and served personally and by copy on Silverthorn who was named in the writ, as terre-tenant. On the 7th of April 1858, the original judgment was assigned by Townsend to John Palmer, and, on the same day, an alias scire facias to May Term 1858, No. 142, to revive and continue the lien of No. 329, November Term 1850, sur No. 33, November Term 1855, was sued out for the use of Palmer. This was returned, served personally on Silverthorn — who was named therein as terre-tenant — and nihil as to defendant. On the 5th of August 1858, judgment was entered on the alias sci. fa., against Golly, for default of appearance; and on the 4th of November 1850, judgment was entered on the first sci. fa. against Silverthorn, for want of an appearance, which was, however, subsequently opened on motion.</p> <p>On the 20th of September 1868, judgment was entered against Silverthorn on the second sci. fa., for want of an affidavit of defence, and, on the same day, the amount was liquidated at $226.65.</p> <p>On the 27th of October 1858, a rule was granted, on the application of Silverthorn, to show cause why this judgment should not be opened. This rule was made absolute on the 20th of January 1859, and on the 22d of March he filed the following plea:—</p> <p>“Defendant Silverthorn pleads that the land is discharged from the lien of the original judgment.”</p> <p>Upon this issue the cause was tried. On the trial plaintiff’s counsel admitted that Silverthorn was a purchaser from Colby, since the entry of the original judgment, and it was shown that he had occupied it as his own, Colby having left the country.</p> <p>The court charged the jury, inter alia, as follows:—</p> <p>“ If the defendant had offered us the proper evidence showing that he was the purchaser, it is very probable that his defence would be good; but there is nothing of this.</p> <p>“ All that he has given us is, that he was terre-tenant — though not living on the land some five or six years ago — and is now, admitting that he was there at the time, the defence cannot avail him. The evidence was in his own power, and we are not at liberty, in the absence of it, to suppose that he was then, or at any time since, the owner of the land. The defence must, therefore, fail.”</p> <p>The jury found in favour of the plaintiff the sum of $469, and judgment having been entered thereon, the defendant sued out this writ, and assigned for error—</p> <p>1. That the court erred in charging the jury as above stated.</p> <p>2. In not charging that, under the evidence and facts of the case, their verdict should be for the defendant.</p>

This was an appeal taken by J. M. Johnson (who was the assignee of a judgment held by A. Misky v. John W. Duncan), from the decree of the… Held: endorsed, or negotiated; and whereas, said Nimick & Co. have agreed to extend and continue the credit by them given as aforesaid to said Duncan, to an extent not exceeding in all the sum of $25,000 (limited, however, by the discretion of said Nimick & Co.), by renewals, endorsements, acceptances, discounting bills, loans, advances,…

<p>Conditions of Insolvent Bond must be complied with. — Discharge of Insolvent.</p> <p>1. When an insolvent debtor gives bond to appear at the next term of the Court of Common Pleas, and present his petition for the benefit of the insolvent laws, the condition of the bond must he complied with, and a petition with the statements required by law must be presented within the next term, otherwise his bond will be forfeited.</p> <p>2. Where a time has been fixed by court for hearing the petitioner and his creditors, the petitioner, if he would save his bond, must either ask for a discharge, surrender himself to jail, or procure another day for final hearing. The statute requires of him an active compliance with its provisions.</p> <p>3. The discharge of an insolvent by the court below under such circumstances will be reversed on certiorari.</p>

This was an alternative mandamus issued out of the Supreme Court of Pennsylvania, in the name of the Commonwealth, on the relation of W. G. Armstrong, against tbe Commissioners of Allegheny county.

This was an action of covenant brought by John W. Stephenson against the Girard Fire and Marine Insurance Company. The declaration was in the usual form, to which the defendant pleaded “ covenants performed absque hoc,” with leave to give the special matters in evidence. On the 19th of June 1856, the plaintiff applied to Mr. Douglas, the agent of the company at Meadville, for an insurance on his dwelling-house and furniture.

This was an appeal from the decree of the Orphans’ Court of Allegheny county, dismissing the petition of Mrs. Catharine McFarland, widow of Joseph McFarland, deceased, praying for an order directing the executors of the decedent to sell certain real estate.

This was an action of ejectment, brought by George S. Hunter against W. W. Hulings and M. Milford, to recover a tract of land in Tionesta… Held: and all the property included in the levy extended at an annual rental of $25. The judgment was then sold by Range and wife to W. Peter-field, who sold to one Eagundus, by whom it was subsequently transferred to J. Dawson. On the 1st of June 1850 Range and wife conveyed the land which had been devised to her to Montgomery Milford.

This was an action on the case brought by Jesse Kilgore against Michael Poorman, to recover damages for the- breach of a parol contract for the sale of lands. The pleas were non assumpsit and non assumpsit infra sex annos.

This was an action of ejectment brought in the name of James Gill, by his guardian Robert McCord, against Robert Gill, for the undivided ninth part of 50 acres of land in Paymatooming township, Mercer county.

This was an action of ejectment brought by Reuben Winslow against Jonathan Boynton and John Barr, to recover possession of the undivided moiety of a tract of land containing 200 acres, in Jay township, Elk county. The land in controversy was, in 1835, the property of Potter Goff, deceased.

<p>Implied Warranty.— Warranties, general and special. — Damages for known Defects in Title.</p> <p>1. At common law there is no general warranty implied in the necessary words used to create a freehold.</p> <p>2. An agreement for the sale of land- in which the vendor covenants that upon the payment of the purchase-money he will “ well and sufficiently grant, convey, and assure the said tract of land to the vendee, his heirs, and assigns,” there is no general warranty of title, hut only a special warranty against the grantor and his heirs.</p> <p>3. If the vendee knows of a defect in the title to land which he is about to purchase, and does so without requiring a covenant against it, he cannot, in absence of fraud on the part of the vendor, withhold any portion of the purchase-money on account of this defect. The presumption is that he was compensated for this risk by the advantage of his bargain; but where such defect is unknown the rule is different.</p>

<p>Appeal from the Orphans’ Court of Crawford county.</p> <p>This was an appeal from the decree of the Orphans’ Court, confirming the auditor’s report on the account of J. S. Riddle, deceased, surviving executor of Henry Shippen, deceased, as settled by D. A. Finney, administrator of said Riddle.</p> <p>The account in controversy was filed January 13th 1852. On the 20th of February 1852, exceptions were filed by the administrator of H. Shippen, and an auditor appointed.</p> <p>On the 18th of April following an additional exception was filed, claiming that the estate of the deceased executor should be charged with the amount of a judgment of R. Clapp v. David Phipps, which the executor had taken as part of the purchase-money of land belonging to Henry Shippen’s estate, which he had sold, and which was lost by the insolvency of Phipps; and also with a sum of money which Edward Shippen, one of the heirs, had been allowed to collect and retain out of the purchase-money of certain lands in Jefferson county.</p> <p>The report of the auditor (in which the estate of the deceased executor was charged with both these items), was filed January 3d 1857, to which exceptions were filed by Finney, the administrator of Riddle, and on the same day an issue was directed to determine the liability of Riddle’s estate for these sums, as charged by the auditor.</p> <p>The issue was in the name of Arthur Cullom, administrator, de bonis non cum test, annexo of Henry Shippen, deceased, v. D. A. Finney, administrator of J. S. Riddle, deceased.</p> <p>The declaration was in assumpsit, on a wager on the affirmation of the defendant that his exception was true, to which were added the proper plea and replication.</p> <p>On the trial, as also by the report of the auditor, it appeared that the executor of Shippen had sold to one Clapp four thousand and five hundred acres of land in Venango county for $1 per acre, and had bound themselves in the contract of sale to take in part payment a transfer of a balance of $1754.88, due to Clapp, on a judgment which he held against one David Phipps, in Yenango county, guarantied by Clapp. It appeared further, that the property of Phipps had been sold by the sheriff without producing money enough to reach Clapp’s judgment; and that he was insolvent — that the heirs of Henry Shippen had brought ejectment against Clapp for the purchase-money, and failed to recover (see the case reported in 8 Casey 265), and that an issue was tried in Crawford county between the heirs of Shippen v. Clapp for this $1754.88, which was decided in favour of the defendant, and the allegation was, that this money was lost to the estate of Henry Shippen by the neglect or misconduct of Riddle, the acting executor. It was conceded that no part of the money due under this contract with Clapp had ever come into his hands.</p> <p>On the first point, the court (Galbraith, P. J.) charged the jury, in substance, that the estate of Riddle was answerable in the Orphans’ Court, although the matters alleged were somewhat in the nature of a devastavit; that the estate of Riddle was liable to that of Shippen for the amount of the judgment, if the acts of Riddle were such as to release Clapp from his legal obligation to pay that part of the price of the land sold to him that was included in the Phipps judgment, and it was thereby lost; that the question of negligence in this case was partly a matter of law and partly of fact; that the jury should take the whole evidence on this point into consideration, and if they found that the conduct of Riddle was such as to release Clapp from his guarantee, and the debt was lost by reason of his neglect to exercise due diligence in the collection of the claim, his estate would be liable. If they were of the opinion that due diligence was exercised, their finding on this exception should be for the defendant in the issue.</p> <p>On the second point, the court charged that as Edward Shippen was a legatee, and would receive more than the sum in his hands, that might be adjusted in settling with him on the final distribution ; that although Mr. Riddle had never received the money, still, as it was a proper item in the administration account, the plaintiff was entitled to a verdict on this point, and that their verdict should be found for plaintiff or for defendant without any sum.</p> <p>The points (nineteen in number) were all answered by the court below, the substance of which is given above.</p> <p>Under this charge, the jury found in favour of the plaintiff, whereupon the auditor’s report was confirmed by the court, from which decree of confirmation the defendant in the issue appealed, but took no writ of error to the judgment on the feigned issue.</p>

This Avas an action of trespass brought by Joseph Thompson against Michael Franks, constable, for levying on and selling a lot of “rye in the straw,” as the property of Jesse Recknor, which the plaintiff claimed to have purchased from said Recknor, sometime previous to the levy.

. This was an action of replevin brought hy Isaac Scott against Michael D. Baker, for a portable steam saw-mill and fixtures, valued at $2000. To a declaration in the usual form the defendant pleaded “ property,” and on this issue the parties went to trial.

In the matter of the petition of Simpson Horner and George W. Roberts, for leave to construct a lateral railroad, and acquire a wharf or landing.

This was an amicable action in debt by the Mayor, Aldermen, and Citizens of Pittsburgh against the Iron City Bank, to recover the sum of $243.66 claimed to be due from the defendant to the plaintiff for city purposes, in which a case was (stated for the opinion of the court below.

This was an action on the ease, brought by Benjamin J. Gaunce against William J. Backhouse, John S. Peters, and William Curry, for conspiracy.

This was an action of debt, brought in the Common Pleas of Lawrence county to February Term 1860, by Daniel Diamond against the County of Lawrence, to which an appearance was entered by the defendant, and the issuing and service of the writ dispensed with. To a declaration, and a copy of plaintiff’s claim duly filed, the plea of nil debet and payment with leave, &c., was entered; and, on the 28th of January 1860, an agreement of the parties, as a case stated, was filed.

This was an action of ejectment, brought November 14th 1857, by Orris Hall and Chapman Hall, against George S. Lacy (impleaded with A. G. Comstock, Patrick Graham, E. B. Flemming, B. F. Lacy, and Abraham Greyton), to recover the undivided moiety of two tracts of land of 1000 acres each, inVenango county, known as the McLeod tract, and numbered 3825 and 3826, in the county map, to which the plea of “not guilty” was entered.

This was an action of ejectment for nine tracts of land, by Orris Hall and Chapin Hall against George S. Lacy et al. Plaintiffs claimed the whole of two of the tracts, Nos. 3825 and 3826, and the undivided half of the other lands described in the writ. The court ruled that they were entitled only to the undivided half of all the lands described. To this the plaintiffs excepted, and bill was sealed.

This was an action of assumpsit brought by John Mellon against Felix Bobe and Joseph Albietz as partners, on a promissory note for $863.89, dated February 14th, 1857, signed Bobe & Albietz to the order of Reis & Berger, and by them endorsed in blank. Bobe made no defence, and judgment was taken against him for default of appearance, and for want of an affidavit of defence.

This was an action of assumpsit before a justice of the peace by Oliveretta Wharton, against the Burgess and Town Council of East Birmingham, and came into the Common Pleas by appeal. The plaintiff was the owner of certain vacant and unimproved town lots in the borough of East Birmingham, which had come to her by partition of an estate to which she was heir; but she exercised no ownership over them, except paying taxes, and, from time to time, offering them for sale.

This was an action of ejectment, brought by Ross Drake, by his guardian, James Drake, against George W. Ross, Stephen H. Ross, John C. Ross, Mary Ross, Washington Ross, Amelia Ann Reynolds, late Amelia Ann Ross, and her husband, Woodward Reynolds, to recover about two hundred and twenty-five acres of land in Franklin township, in which the following case was stated for the opinion of the court below: John Ross, of Chester county, died some time prior to the 3d of March 1830,…

This was an appeal by E. M. Snodgrass, from the decree of the Orphans’ Court of Allegheny county, confirming the report of the auditor, on the account of John Scott, guardian of said E. M. Snodgrass (late E. M. Carlisle). The material facts of this case are fully set forth in the opinion of this court.

This was an action of ejectment brought by Elisha Woods against Joseph Wilson, John Wilson, and George Hicks, to recover the undivided one-seventh part of a tract of land in Moon township, containing about 200 acres. The whole tract was originally settled on by Robert Woods.

This was an application by certain citizens of Franklin township, Washington county, under the 9th section of the Act of May 8th 1854, authorizing the Quarter Sessions to declare the seats of school directors vacant, and to appoint others in their stead, until the next annual election, where they shall neglect or refuse to perform any duty enjoined by law.

<p>Error to the Common. Pleas of Fayette county.</p> <p>This action was brought before a justice of the peace, by John Collins, against Henry Collins, in which, according to the transcript, the plaintiff’s claim was laid at $99.50. The justice gave judgment in favour of plaintiff for $36.26, whereupon defendant appealed. In his declaration in the Common Pleas, the plaintiff laid his damages at $100. On the trial it appeared, by the testimony of the justice, that plaintiff at first claimed over $100, upon which he was about to dismiss the suit, whereupon the plaintiff reduced his claim to $99.50; that when the parties appeared, they agreed to throw open everything, and go into a full trial of all their accounts, to which the magistrate assented; that the parties thereupon brought the sale of a farm into consideration ; and that plaintiff’s old bill, as it was called, for the land, &c., was $1244; there was also a board bill, which the justice reduced to $110, and a bill for mason wrork, amounting to $75; but that as the whole controversy was adjusted by him, the balance due plaintiff amounted to $36.26. The question of jurisdiction in the justice was not raised on the trial, and the jury found a verdict in favour of plaintiff for $146. The plaintiff offered to release the excess over $100, which defendant’s counsel refused to accept, and thereupon moved for a new trial. On argument, this rule was refused; but a rule on the plaintiff, to show cause why this verdict should not be set aside, and the case dismissed, for want of jurisdiction, was entered, and made absolute, October 6th 1860; whereupon the plaintiff sued out this writ, and'assigned the setting aside of the verdict, and the dismissing of the case, by the court below, for error here.</p>

This was an action of ejectment brought by Robert Rogers and William Armstrong, executors of Joseph Thornton, deceased, against John S. Krepps and Mathias Davis, to recover possession of 260 acres of land, in Luzerne township, Fayette county.

Ekbob to the District Court of Allegheny county. This was a scire facias sur judgment, No. 638, July Term 1852, brought by Andrew Fife against John Patterson, administrator of James Wall, in which the widow and heirs of the deceased were also made defendants. The writ recited a judgment recovered July 13th 1852, by Andrew Fife against John Patterson, administrator of James Wall, for $278.08.

This was a scire facias sur foreign attachment, by Samuel P. Shriver and John S. Dilworth, partners, against Springer Harbaugh and William Magill, who had been summoned as garnishees of William Porter, the defendant in the attachment.

<p>Construction of Contracts. — Rights and Obligations of Creditor holding Collateral Securities.</p> <p>1. In construing a particular clause of an agreement, it is proper to consider the situation and relation of the parties, the subject-matter of the contract, and all the other provisions of the agreement.</p> <p>2. Where a creditor holding collateral security, as a consideration for extension of time, accepts additional collaterals, which he agrees to prosecute to collection or insolvency, and to apply the proceeds as fast as collected to the extinguishment of the original debt, and to surrender and give up the same amount of the original collateral bonds — it is the duty of the debtor to demand the surrender of the bonds.</p> <p>3. Without a demand on the creditor, or affording him an opportunity to surrender the bonds, he is not liable to the debtor for any depreciation of the bonds, during the time they remained in his possession after they might have been demanded.</p>

<p>Error to the Common Pleas of Westmoreland county.</p>

This was a proceeding to vacate the whole or part of a road which had been laid out from Madison School-House to Harmony School-House in Hempfield township, Westmoreland county. A road had been laid out in 1859 between the above-named points, a distance of two miles and a half and eighteen perches.

This was an action of assumpsit brought by Jacob Bender against Samuel Rock, administrator, &e., of George Bender, deceased, with notice to the heirs; to recover damages for the breach of an alleged parol contract, made between him and his father, the said deceased, by which it was agreed that a certain tract of land should be devised to the plaintiff. The defendant pleaded non assumpsit and non assumpsit infra sex amos.

This was an action on the case brought by Nicholas Zebe and Elizabeth Zebe his wife, against the Pennsylvania Railroad Company, to recover damages for injuries which resulted in the death of their minor son Peter Zebe. The case was tried at August Term 1868, when there was a verdict and judgment in favour of plaintiff, for $1500 damages, and costs.

This was an action on the case brought by Francis Flanigan against Valentine Elliott, for levying and selling personal property of plaintiff, and for not appraising the same under the exemption law.

This Ayas an action of trespass quare clausum fregit, brought by William S. Caldwell against Thomas Copeland and John Copeland, for an… Held: will be considered. If the jury believe they held and claimed it as in their possession, it being their property, and held it so for twenty-one years, then it would be an adverse possession; but if the jury believe that he only claimed to hold possession in subservience to the terms of the deed, then the possession was not adverse.”…

This was an execution-attachment issued on a judgment in favour of David Nease and H. Nease, trading as D. Nease & Son, against John Lafferty, in which John Black was summoned as garnishee of the defendant. Interrogatories were filed in the cause hy the plaintiffs, and the garnishee was ruled to answer on ten days’ notice or judgment. The garnishee answered in due time, and also filed the plea of nulla bona, on which issue the cause was tried between them.

<p>Power of Orphans’ Court to set aside Sale of Lands. — Appeal, when allowed in such cases.</p> <p>The Supreme Court will not review the action of the Orphans’ Court as to the exercise of their discretion in setting aside a sale, except where the wrong is great and manifest: nor will an appeal, taken hereafter, on such grounds, he entertained without a special allocatur.</p>

Error, to the Common Pleas of Allegheny county. This was a libel sur divorce by Mary Grove by her next friend James Haines, against Samuel Grove, which, after the usual averments of marriage, cohabitation, &c., charged the respondent with having, “ on the 15th of September 1856, turned libellant out of doors, and forbid her ever to enter his house and with having, at other times before that date, subjected her to degrading abuse in the presence of his family and strangers,…

This was a scire facias on a judgment by George Trimble and Jane D. Trimble his wife, for the use o'f said Jane against Henry Reis, John Wilson, and Leopold Sahl. The judgment was recovered on a mortgage given to plaintiffs by Henry Reis, by whom portions of the mortgaged premises had been sold to the other defendants) Sahl and Wilson.

Pleas of Allegheny county. This was an action of assumpsit which came into court by appeal from the judgment of a justice of the peace, in which Robert Gardner was plaintiff, and Samuel Milliken, William Coyne, and Isaac Hamnet, partners doing business as Samuel Milliken & Co., were defendants.

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an action of assumpsit brought by Samuel Austin against John Y. Painter and James Patterson. The statement of the plaintiff set forth, that the suit was brought on a note dated at Kittaning, December 29th 1856, signed James Patterson, in and by which he promised to pay to Samuel Austin or order, four months after date, $162.75, at the Pittsburgh Trust Company Bank; averring that at the time the goods were sold and the notes given, John Y. Painter was the partner of Patterson, and jointly liable with him to the plaintiff, although the plaintiff was ignorant of it at the time. To this statement, there was a bill attached, showing the purchase of powder by P atterson from the plaintiff, in December 1856, which was settled by the note on which the suit was brought. The defendants had been partners as grocers and produce dealers, doing business .as Painter & Patterson, but they dissolved in 1855, of which notice was given in the newspapers published in Kittaning,— Patterson continuing the business in his own name.</p> <p>On the trial, the plaintiff proved that they had been partners at one time, but that they had dissolved partnership; that the note was given for powder sold to the firm; that Painter had said repeatedly that he iT held himself accountable for the payment of the note;” had offered an order for the amount on a Mr. Jamison, who, he said, was indebted to his former partner ; that “he would see it paid;” would “direct his attorney to pay it out of the proceeds of certain bills which were in his hands for collection;” and that he had “always considered it a debt of Painter & Patterson.”</p> <p>The court below (Bubfington, P. J.) charged, in substance, that, “ as the account was in the name of Patterson alone, and the note by Patterson, and dated after the notice of dissolution of the firm of Painter & Patterson, the debt was primá facie the debt of Patterson alone; that if the plaintiff wished to charge them as partners, the burden of proof was on him; that the test of partnership was a participation in the profits, and might be shown by proof of this fact, or by the admissions and declarations of the parties. That in this case the plaintiff had given no evidence of direct partnership, but relied on the declarations of Painter.” These declarations were submitted to the jury, Avith the further instruction that “ if Painter was a partner, he Avas liable, — but if not, as the plaintiff does not claim on any other ground, no agreement that he may have made, or promise that he gave, would bind him to pay this debt.” The court further charged, that “ the existence of a debt established against one partner, and the admission by the other, is sufficient to make them liable as such.”</p> <p>There Ayas a verdict and judgment in favour of plaintiff; Avhereupon Painter sued out this Avrit, and assigned for error, that the court erred in charging the jury, as follows: — “ In the present case there is no evidence to shoAy an actual partnership, or any agreement to share the profits; but the plaintiffs rely on the declarations of Mr. Painter. The jury will take these declarations into consideration, and say Avhether they believe Painter Ayas a partner, in view of the facts and evidence in the case; if so, the plaintiff is entitled to recover;” and that the existence of the debt established against one partner, and the admission of the other, is sufficient to make them liable as such.</p>

Error, to the District court of Allegheny county. Held: and which were considered material in this controversy, are as follows: — “ I, Joseph Stockton, knowing I must soon undergo a great change in the manner and place of my existence, where I shall have no more connection with worldly things,” &c., “ I desire to make such a disposition of my worldly property to them as may show to my…

This was an action on the case brought in 1852 to recover the amount of a book account due by the defendants below (and plaintiffs in error), which resulted in a verdict of $409.12 against them, rendered on the 29th day of March 1853. No further proceeding was had until the 3d of September 1860, when judgment was entered on the verdict for $409.12, with interest from the date thereof, March 29th 1853.

<p>Register’s Court. — Effect of Decree granting Letters of Administration.</p> <p>The decision of a Register’s Court, granting letters of administration on proof that the deceased had made a will which he subsequently destroyed, will not operate as a bar to the probate of his real will, afterwards found duly executed and attested.</p>

William Watson was, and still is, the owner in fee of two pieces of land in Peebles township, one of them containing about thirty acres of land on the northern or upper side of the Braddock’s Field… Held: used, and occupied jointly or as one tract by plaintiff, the circumstance of the plank-road running through it would not make it two separate tracts.” •7.

This was an action of ejectment by Andrew Lantz, Jr., and others, heirs-at-law of Andrew Lantz, Sr., deceased, against Samuel Trusler,.for 150 acres of land, in Whitely township. The case was this: — Henry Soonover, deceased, by his will dated 20th April 1809, and proved January 22d 1812, devised all his real estate, wheresover the same may be, equally to be divided between his two daughters Catharine Livingood and Dorothea Miller, during their natural lives respectively.

In Equity. James Stockdale, Jacob Ullery, Eli Cope, and Jeremiah Long, were partners, doing business as Stockdale, Ullery & Co. While in business, the firm became the owner of a tract of land in Washington county, and it was agreed by the partners that Ullery, one of the firm, should take the deed in his own name, sell the land, and apply the proceeds to the debts of the firm.

<p>Error to the Common Pleas of Greene county.</p> <p>This was an action of ejectment by John Lantz against Marshall Reinhart, Nathan Quigley, and Moses Mathews, in which the following case was stated for the opinion of the court:—</p> <p>It is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict.</p> <p>In this action, John Lantz, the plaintiff, claims to recover a tract of land now in the possession of the defendants, containing about one hundred acres, situate in Whitely township, in the said county of Greene: beginning at a post S. 45° E. 131 perches to a black oak; and thence N. 30° E. 140 perches to a white oak; thence N. 27° W. 50 perches to a black oak; thence N. 3° E. 41 perches to a post; thence S. 60° W. 83 perches to a black walnut, and thence S. 57° W. 108 perches to the place of beginning. On the 30th of November, A. D. 1808, Henry Soonover and Catharine his wife (the said Henry being then the absolute owner of the said tract of land) executed a conveyance of the same “ unto Andrew Lantz and Mary his wife, and unto the heirs of the body of the said Andrew Lantz, on the body of the said Mary begotten and to be begotten,” which said conveyance, marked A., is hereto attached and made part of this case.</p> <p>Said Andrew Lantz and Mary his wife brought suit against Henry Soonover, to No. 5, April Term 1808, and recovered a judgment for $1500, to be released upon the said Henry Soon-over and wife filing a deed to Andrew Lantz and Mary his wife, and the heirs of the body of the said Andrew on the body of the said Mary begotten and to be begotten, &c., which deed was to be approved by the court, and subject to the annual payment of $16 to Henry Soonover during his natural life; the said Andrew Lantz being in possession of the land before suit brought, and before the delivery of the annexed deed of conveyance, and continued in possession until his death, viz., March 23d 1859. His wife Mary died previous to the 26th of June 1853. Andrew Lantz and Mary his wife had but five children, all of whom are now living, viz., John, Henry, Andrew, Catharine intermarried with Jacob Rose, and Margaret intermarried with Brazilla Stephens ; the eldest three of whom were born before the 30th of November, A. D. 1808, and the two youngest after that date. John is the oldest son. The defendants are the tenants of A. Lantz, Jr., aforesaid, who is one of the five children of A. Lantz, Sr. John Lantz, the plaintiff, claims the whole of the said land, under the above deed, as oldest son and heir in tail under the above recited deed. Henry Soonover and Catharine his wife died prior to the 22d of January 1812.</p> <p>If the court should be of opinion, that upon the above facts the plaintiff is entitled to recover the whole land, then judgment to be entered for him for the land, with costs of suit; but if of opinion that, he is not entitled to recover the whole land, then judgment to be entered for the defendant for costs. Each party reserves the right to sue out a writ of error thereon.</p> <p>The court below (Gilmore, P. J.) decided, that the deed to Lantz and wife created an estate tail special, which in this state descended as at common law to the eldest son exclusively; that although it had been suggested that they were included in the Act of 1833, and subject to our ordinary law of descents, yet no rule of property ought to be considered as- altered by mere implication or inference ; and that although the Act of April 27th 1855 had repealed the statute De Donis, yet it could not be applied to estates already in existence, but only to such as may be there-1 after created. Judgment was, therefore, entered in favour of the plaintiff, with costs.</p> <p>The defendants thereupon sued out this writ, and assigned for error the entry of judgment by the court, as above stated.</p>

<p>Error to the Common Pleas of Greene county.</p> <p>This was a proceeding in the court below under an attachment execution by Peter Myers against Lewis Roberts, with a clause of sci. fa. to Abraham Baltzell as garnishee; to which he pleaded nulla hona, and on this issue the parties went to trial. .</p> <p>After reading in evidence the judgment against Roberts, and the record of the attachment against Baltzell (which was served February 9th 1859), the plaintiff offered in evidence three judgments against Baltzell which had been assigned to Lewis Roberts by the original holder in 1853 and 1854; and by .him on the 22d of February 1856 assigned to other parties as collateral security, but in which the last assignees had no further interest, haAdng received the amount of their claims out of the real estate of Roberts.</p> <p>The garnishee then offered in evidence the record of an action of ejectment brought by him against Lewis Roberts and two others to December Term 1856, to recover a balance of purchase-money for a house and lot in Waynesburg; by which it appeared that one D. A. Wooley, who had become the purchaser of the property at sheriff’s sale, confessed a judgment January 31st 1857, to be released on the payment of the balance of the purchase-money due on an article of agreement between Baltzell and Roberts for the property, six months from date, “ amount to be ascertained by prothonotary.” He then offered a paper marked filed, which purported to be the calculation of the prothonotary for the balance due on the above-mentioned article of agreement; in which was included the three judgments against Baltzell, or so much thereof as had been assigned to Roberts.' This evidence was objected to on the ground that the calculation was made after Roberts’s interest in the house and lot had been divested by the sheriff’s sale, and that there was no authority from Lewis to make this appropriation of the judgments assigned to him, so as to affect the interest of Myers, the attaching creditor; but the court below overruled the objection, and admitted the evidence. The garnishee having closed, the plaintiff offered in evidence the sheriff’s deed to Worley above mentioned, dated March 28th 1856, to show that at the time the calculation was made by the prothonotary, Roberts had no .interest in the property, and that no one had authority to make the appropriation. This offer was objected to by the garnishee, but the court overruled the objection and admitted the evidence.</p> <p>The plaintiff then presented the following points, which were negatived by the court:—</p> <p>1. That there is no evidence in the case that Lewis Roberts either authorized or directed that the judgments given in evidence by the plaintiff, should be applied to the extinguishment of the purchase-money; that the calculation of the prothonotary including ‘these judgments of the balance of the purchase-money does not extinguish them, nor prevent the plaintiff from attaching them.</p> <p>2.. That the authority contained in the confession of the conditional judgment to the prothonotary to calculate the balance of the purchase-money did not authorize the prothonotary to take into calculation judgments which Roberts held against Baltzell, without Roberts’s knowledge, consent, and authority, and which Roberts had not directed to be so applied.</p> <p>The jury found for the defendant, and judgment having been entered on the verdict, the. plaintiff sued out this writ, and assigned for error the following matters, to wit:—</p> <p>1. The court erred in its answer to plaintiff’s offer as contained in bill of exceptions, which offer was as follows : — “ That after the plaintiff had given in evidence several judgments against Baltzell in favour of Roberts, and which were attached, the defendant gave in evidence a judgment in ejectment to enforce the payment of purchase-money and a liquidation thereof, showing that the above judgments were included in the liquidation; the plaintiff then offered the sheriff’s deed for the property on which the conditional judgment was given to David A. Worley, dated 25th of March 1856, for the purpose of showing that at the date of the confession of judgment and liquidation, Lewis Roberts had no interest in the property; and that neither the plaintiff in the conditional judgment, the prothonotary, or any one else, had the right, without Roberts’s consent, to apply said judgments to the purchase-money.”</p> <p>2. The court erred in its answers to the plaintiff’s first and second points.</p>

<p> Party to negotiable Note, when a competent Witness. </p> <p>1. The rule laid down in Walton v. Shelly, as understood in Pennsylvania, extends only to negotiable paper, actually negotiated, and in the hands of .an innocent holder, who took it without any previous notice of any original defect in it; and it excludes only those parties whose names were on the paper when it was transferred to the holder.</p> <p>2. Therefore where a note was not endorsed, but assigned to the holder, with a general warranty by the assignor and a third party; and there was evidence in the cause to the effect that the holder had admitted that he thought there was something wrong about it, and did not want to take it unless the assignor would guaranty it, which he was for a long time unwilling to do, &e.; it was held, that the payee of the note was not incompetent as a witness for the maker.</p>

<p>What constitutes a valid Levy. — Lien of Execution on Personal Property.</p> <p>1. It is essential, to constitute a valid levy under an execution, that the property levied be in the power or in the view of the sheriff, at the time it is made. A levy is an assertion of title by the sheriff, and should be public, open, and unequivocal.</p> <p>2. Therefore where the property levied upon, a planing machine, was, at the time of the levy, ten miles distant, and was not seen by the sheriff until after the return day of the execution, it was held that no lien was created by the levy,' and that the execution of another creditor, under which an actual levy was subsequently made, was entitled to the money arising from the sale of the machine.</p>

<p>Error to the District Court of Allegheny county.</p> <p>Iu Equity. — This was an appeal from the decree of the District Court of Allegheny county, dismissing the complainant’s bill in equity, praying for an injunction to restrain defendant from closing up a private alley in the City of Pittsburgh.-</p> <p>The pleadings and evidence presented this case:—</p> <p>In 1830, John Horner purchased of William Hays a lot of ground on the east side of Market street, in the city of Pittsburgh, 32 feet front on Market street, and 60 feet deep, and in the year 1835 purchased of William Davis another lot adjoining the first, also 32 feet front on Market street, and 60 feet deep. These lots formed a block, situate at the corner of Market and Second streets. At the time of these purchases, there was no alley running across the rear of said lots, and no mention or reference to any such alley made in the deeds conveying said lots to Horner, or in the negotiations for the purchase. Soon after the last purchase, Horner erected on these lots a block of brick buildings, and opened or left in the rear of them an alley, 6 feet wide, for the use of his tenants. This alley continued open until the fire of 1845, by which the buildings on these lots were destroyed, during which time it was used by Horner’s tenants and by the tenants of adjoining lots, owned by his brother-in-law, James Kelly, by permission. After the fire, these lots were covered by a mass of ruins, and so continued till 1849, when Horner sold them; which he did without any reference to or mention of the alley, either in his deeds or the negotiations for the sale.</p> <p>Horner conveyed a lot at the corner of Market and Second streets, 16 feet front on Market street and 60 feet deep along Second street, to Richard Straw. The next adjoining lot, also 16 feet front on Market street and 60 feet deep, he conveyed to Forsyth. The next lot, 16 feet front on Market street and 60 feet deep, he conveyed to William Irwin, whose title Rhea holds; and the next adjoining lot, of the same size, he conveyed to Henry Yoegel.</p> <p>After their purchase in 1849, Straw, Forsyth, Irwin, and Yoegel, built on these four lots. The rear walls of the buildings erected on said lots, for part of the width of the lots, was bounded by a line 57 feet east of Market street; for the other part of the lots, the buildings were not so deep by 7 or 8 feet, leaving small areas or yards between the rear of each two buildings. These areas were never separated from the passage along the end of the buildings by any fence or enclosure; but all was opened together and formed a yard.</p> <p>It was alleged that at the time these four lots were purchased and buildings erected thereon as aforesaid, it was understood and agreed by Straw, Forsyth, Irwin, and Yoegel, that these buildings should be used as clothing stores, and as long’as they were so used, all the parties, or lotowners, and their tenants, might use the open space in the rear of the buildings as a passage to Second street; that Straw and Forsyth always used these buildings as clothing stores; but that the building erected by Voegel, and that erected by Irwin, never were so used; that Straw and respondent immediately complained to Irwin and Voegel of this violation of their agreement, and denied their right to pass across their lots, but never closed the passage until about the time of filing the bill in this case. That William Irwin conveyed his lot to Mr. Palmer without any mention of or reference to any alley in the rear of it, either in the negotiations for the sale, or the deed conveying the lot. And Palmer conveyed to Rhea in like manner, without any mention of or reference to any alley in the rear of the lot. In all the deeds, Horner’s, Irwin’s, and Palmer’s, it is described simply as 16 feet front by 60 feet deep. In the spring of 1859, Forsyth proceeded to erect a small brick structure for a vault or safe in the rear of his building, extending back to the rear line of his lot. While this vault was being erected this bill was filed, and the court having dissolved the preliminary injunction, granted when the bill was filed, he proceeded to complete it. After argument on the bill, answer, and evidence, the court refused the injunction, and dismissed complainant’s bill, with costs.</p> <p>Whereupon the complainant removed the case into this court, and assigned for error the dismissal of his bill and the refusal to decree the injunction prayed for by him.</p>

<p>Sheriff’s Interpleader Act. — Deed of Trust for Married Woman executed in Missouri, effect of in Pennsylvania.</p> <p>A resident of Missouri transferred to a trustee for his wife, under the law of that state, all his household furniture. He afterwards moved to Pennsylvania, and contracting debts, his wife’s title was contested by his creditors. It was held that, as she owned the property in Missouri, she would still own it after moving into Pennsylvania, and that creditors could avoid her title only by showing that the transaction was intended as a fraud on them.</p>

<p>Error to the Common Pleas of Fayette county.</p> <p>This was an action of ejectment, brought by Norval Greenland and Cromwell Hall, against Robert Patterson, for part of a lot of ground in South Union township, which he had conveyed to them in exchange for <$250 cash, and three several half-quarter sections of land in Iowa. On examination, Patterson considered this Iowa land worthless, and tendered to plaintiffs the cash which they had paid him, offering also to reconvey to them the Iowa property, and retain his own; which proposition they declined, and brought this suit as above stated.</p> <p>On the trial of the cause, Patterson having shown by B. F. Hellen, who wrote the article of agreement, the representations of Greenland and Hall, at the timé' of the contract, that their Iowa land was mostly timbered land, and consequently very valuable, and that in consequence of these representations, he was induced to enter into the contract, then offered to show by the testimony of several witnesses (taken on a commission), residing near the land, that the representations made by Greenland and Hall were false and fraudulent, and that the land was not timbered land, but was almost entirely without timber, and swampy, and utterly worthless. This testimony was rejected by the court, because the county in which the commissioners named in the commission resided was not stated, nor the place where the same was to be executed.</p> <p>The rejection of this evidence, which was the whole of defendant’s case, was excepted to by his counsel. There was a verdict and judgment in favour of the plaintiff, whereupon the defendant sued out this writ, and assigned for error the rejection of the commission and the depositions taken under it.</p>

<p>Error, to the Common Pleas of Cambria county.</p> <p>This was an action of ejectment brought by A. M. White, Cornelius Boyle, Ellen Kennedy, Niel O’Donnel and Mary his wife, and Alexander McCahan and Mary his wife against Blasius Noel, Bartly Sutton, James Cunningham, Michael Weakland, and Miles Edmiston, for a tract of land in Carrol township, Cambria county, containing three hundred and eleven acres.</p> <p>The land in controversy was surveyed September 28th 1773, in the name of Catharine Ann Reading, on an application dated April 20th 1769, and from her descended to the vendors of defendants.</p> <p>The plaintiffs represented Edward Boyle, who on the 14th of July 1821, purchased the land from one John A. L. Houston, by articles of agreement, for $622, of which $100 was to be in cash, $128.84 in an order on the Chambersburg and Bedford Turnpike Company, and the balance in two annual payments, with interest. Boyle paid about two-thirds of the purchase-money, and in the fall of 1821 entered upon the land, commenced clearing and making preparations to build a house, into which, in the following spring, he moved with his family. In 1823, he with his wife went to seek employment on the public works at Lebanon; leaving his family upon the land. In the fall of the same year she returned, reporting his death, and with her children or some of them continued to reside on it, extending the improvements which Edward Boyle had commenced, until 1843, when her son Hugh, who had become deranged, drove her and the family away, and soon after left himself.</p> <p>From 1821 to 1843 the possession commenced by Edward Boyle was continued by his wife and children without interruption. In 1853 the defendants, who claimed under a deed from Edward Shoemaker, the vendee of Isaac, Catharine, and Mary Lum, to whom the land had descended from Catharine Ann Reading, finding it unoccupied, entered into possession; and during the following year, to wit, to December Term 1854, this ejectment was brought.</p> <p>There was no evidence of title to the survey in John A. L. Houston, when he sold to Edward Boyle, nor that he had any authority from the owners to sell. The plaintiffs did not rest their claim upon their ancestor’s contract with Houston, but offered and relied on it only to show the character of Boyle’s entry on the land, and that it was done under colour of title.</p> <p>On the trial they proved by Judge Canan, that he wrote the agreement between Houston and Boyle, to which was appended Houston’s receipt dated July 14th 1821, for $200, and for the order on the turnpike company. That on the 11th of November 1842, he received the following letter from Edward Shoemaker:—</p> <p>Moses Canan, Esq.,</p> <p>Dear Sir: — The bearer of this, Mr. P. Ivory, will call on you for the purpose of obtaining some information respecting the land you once sold, as the property of a Mr. Houston, to Boyle.</p> <p>It is supposed the Nicholson surveys, which are offered for sale, will cover this land, and it is with a view of protecting Boyle that Mr. Ivory is acting. If Boyle can connect himself with the Houston title in any way it will answer the purpose. If he cannot, it will be well to claim the land as Houston’s. Satisfy the Nicholson commissioner of the priority of claim, and they will then abandon it. Any service you can render Mr. Ivory in this matter will be a favour to Boyle.</p> <p>Very respectfully and truly yours.</p> <p>Nov. 8, 1842.</p> <p>That he wrote to Mr. Shoemaker stating that he sent him the key to his paper case, and that he might look for the papers himself; that he had seen them several times before that, did not know that he had left them in his case, but could not find them afterwards, and that Shoemaker had told him that he did not find them. That he received another letter from Mr. Shoemaker in 1849, of which the following is a copy:—</p> <p>Ebensburg, 28th April 1849.</p> <p>Moses Canan, Esq.,</p> <p>Dear Sir: — You once mentioned to me that, as the agent of a Mr. Houston, you sold the tract of land surveyed in the name of Catharine Ann Beading, to a man named Boyle, and that Houston and Boyle both died before the contract was completed. The widow of Boyle is very anxious by some means to obtain a title to the land, and has spoken to me.very frequently to ascertain for her how she can effect it. Will you have the goodness to give me such information for the old lady as you can, informing me whether all the title papers are in your hands, and if so, whether they are all perfect, as regards warrant, survey, and patent, and any advice or instruction that you can give that will facilitate her object.</p> <p>Very truly and respectfully yours,</p> <p>Edward Shoemaker.</p> <p>On the agreement between Houston and Boyle there was the following assignment endorsed:—</p> <p>“ I assign all my right, title, interest, and claim in the within article of agreement to Edward Shoemaker, for the sum of seventy-five dollars. Witness my hand and seal the 14th day of November, A. D. 1852.</p> <p>“Witness present, Ellinor Boyle.”</p> <p>Jacob Luther.”</p> <p>There was an effort made to show, that this assignment of Mrs. Boyle was procured by fraud, that she was old and imbecile; but the evidence on this point was not very satisfactory. She was old and poor, a charge on the township, but the consideration paid for it compared with what she could legally claim out of the land was ample, and.it was proved that though at first unwilling to sign, yet when she did so, she had a clear understanding of the effects and consequences of her actions. The main questions in the case were:</p> <p>1. Whether the plaintiffs were entitled to recover under the Statute of Limitations ?</p> <p>2. Whether the evidence raised a resulting trust in favour of plaintiffs, so as to affect the defendant’s title ?</p> <p>3. Whether the possession of Shoemaker or his vendee was obtained under such circumstances as to entitle the plaintiffs to possession, without regard to any question of title ?</p> <p>The parties presented the following points to the court below, on which instruction to the jury was requested: — ■</p> <p>Plaintiffs’ Points. — 1. That possession, taken under colour of title and continued for twenty-one years, confers an indefeasible title to all land claimed at the, time of such entry, and is equally good to recover possession of such land, as to defend the possession.</p> <p>2. That the assessment of 212 acres of the Catharine Ann Reading tract, is not conclusive evidence that the Boyle family had abandoned their claim to that portion of the land. If the jury believe that, notwithstanding such assessment, the family claimed the land and occupied it as theretofore, the act of Hugh Boyle in returning the 212 acres as unseated (if he did so), could not divest the title of his brother and sister in any part of the tract of land claimed.</p> <p>3. That if the jury believe that Hugh Boyle made return of the 212 acres as unseated, and that when he did so, that he was of unsound mind, such return will not divest the title of the plaintiffs to any part of the land claimed.</p> <p>4. That if the jury believe that Edward Shoemaker, by professing friendship for the Boyle family, and undertaking as their agent, or friend, to procure the title for them, acquired a knowledge of the defect in their title, he cannot take advantage of such knowledge for his own benefit; but any title that he acquired will enure for their benefit; and all that he is entitled to is the money that he paid to acquire such title, and the interest thereon. And all who claim under him, with knowledge of the Boyles’ claim, are in the same situation.</p> <p>5. That if the jury believe that Edward Shoemaker took an assignment of the claim of Edward Boyle to this tract of land, for the purpose of obtaining the possession, and that he and Noel, to whom he sold, did take possession under it, that the defendants coming in under it must surrender the possession in this action to the plaintiffs; and, if defendants have any title, they must recover under it in a subsequent action.</p> <p>Defendants’ Point was: If the jury believe that, in 1838, 1839, or 1840, the occupants of the land in dispute refused to return the tract in dispute to the assessor for the amount contained in the survey, but returned 100 acres, and directed the residue, 212 acres, to be assessed o.n the unseated list, without designating any boundary to the 100 acres that were returned on the seated list, the plaintiffs can only recover the quantity of land cleared and occupied for twenty-one years before defendants got possession.</p> <p>The court (Taylor, P. J.), after stating the main facts of the case, charged the jury as follows:—</p> <p>“ We proceed to examine these several grounds of claim, reversing the order in which they have been stated and discussed.</p> <p>“ 1. Was the possession of this land obtained by the defendants, by such means, or in such manner, that the plaintiffs are entitled to have it restored without further inquiry ?</p> <p>“ It is undoubtedly the law that if one get into the possession of another by force or fraud, it shall be restored irrespective of any question of title. The plaintiffs here allege, that Edward Shoemaker and the defendants entering under him, obtained their possession surreptitiously, by taking, on the 12th November, 1852, an assignment of Eleanor Boyle’s interest in the agreement with Houston. But, assuming her to have been then in possession, or to have had control of the possession at that time, is there any evidence of fraud practised by Mr. Shoemaker? This was all done, as fully explained by Mr. Hobble, at the instance and through the agency of the overseers of the poor. The very witness, moreover, called to show that she was at the time imbecile, and imposed upon, testified, on the contrary, that she was well, seemed to understand what she was doing, and acted voluntarily. And the consideration agreed upon was actually paid, and applied to her support by the overseers, as it was understood and contemplated at the time should be done. Nor, as she could only claim dower, and was a very old woman, and the property in such a condition that Hobble could make nothing out of it, could the consideration be alleged to be inadequate. Eor the time she afterwards lived, it was double what she had received from the tenant when the place was in a condition that it could be farmed. Why, then, as to this transaction, should Mr. Shoemaker or the defendants be charged with fraud ? But what is decisive upon this point, and, as it respects this question, is, that neither she nor any of the Boyle family had any possession. There was no one upon the land. So far as the right of the Boyle family had not become fixed by the operation of the statute, (and to that extent this is an immaterial question) the owner of the survey had a perfect right to enter; and Mr. Shoemaker, at that time, and the defendants, by conveyance from him before they entered, had the legal title. There is, therefore, we instruct you, no evidence to support this general position of the plaintiffs as a ground of claim, or upon which there is any question to be submitted to the jury. And this is our answer to the jfifth written point of the plaintiffs’ counsel.</p> <p>“ 2. Is there evidence that Mr. Shoemaker, in 1852, took the conveyance of the title of the Catharine Ann Reading survey, under circumstances which rendered him a trustee for the plaintiffs ?</p> <p>“‘A trustee, so far as the trust extends, can never be a purchaser of the property embraced under the trust, without the consent of all persons interested; and this principle embraces executors, administrators, guardians, attorneys-at-law, general and special agents, assignees, commissioners, sheriffs, and all persons, judicial or private, ministerial or controlling, who in any respect have a concern in the sale of property. It extends to sale by public auction, and judicial sales, as well as private ones; and applies to purchases direct and indirect, in person or through an agent, or by the medium of a person who subsequently reconveys to the trustees, and to purchases made by the trustee as agent for a third person, and to purchases in which he is to have a partial interest, as well as those in which he is exclusively concerned: 65 Law Lib. 138. The principle seems to be that ‘ no person can become a purchaser of an interest in property where he has a duty to perform which is inconsistent with the character of a purchaser; or, as it is stated by Judge Houston, in Rankin v. Porter, 7 Watts 370, that wherever confidence ■has been reposed, justice forbids that it should be abused; and it applies so strongly (he adds) to those who have gratuitously or officiously undertaken the management of another’s property as those who are retained or appointed for that purpose, and paid for it.’</p> <p>“ This being the law, we assent to, and answer affirmatively the fourth point submitted by the counsel of the plaintiffs, viz.:</p> <p>“‘ 4. That if the jury believe that Edward Shoemaker by professing friendship for the Boyle family, and undertaking, as their agent or friend, to procure the title for them, acquired a knowledge of the defect in their title, he cannot take advantage of such knowledge for his own benefit, but any title that he acquires will enure for their benefit; and all that he is entitled to is the money he paid to acquire such title, and the interest thereon; and all who claim under him are in no better situation.’</p> <p>“ There can be no doubt about the law. The only difficulty which we have had on this point, is, whether there is such evidence of the facts assumed or asserted as should be submitted to the consideration of the jury. The evidence should satisfactorily establish the trust relation, to give application to the legal principle invoked, particularly when, as in this case, the alleged violation of it imputes bad faith and a breach of confidence.</p> <p>“ As to what has been urged respecting the price paid by Mr. Shoemaker, and the inference claimed from that, viz. that the vendors, wished to favour the Boyle family, Judge Kennedy says, in Sheriff v. Neal, 6 Watts 539 (cited by the plaintiffs), ‘ It does not appear that the circumstance of the purchaser getting a better pennyworth in the purchase of the land by his declaring to the vendor 'that he wished to buy for one whom the vendor was willing to favour, when in truth he was employed to purchase for another, has never been held a sufficient reason for refusing a decree of specific performance, and, certainly, never for setting the contract aside after it was fully executed, or for decreeing the vendee a trustee for the person for whom he said he was buying the land.’ Here there is no evidence of anything that was said, or that took place when this purchase was made; and the only evidence of the trust relation, and the alleged violation of good faith, is contained in the two letters in evidence of Mr. Shoemaker to Judge Ganan, and Judge Canan’s testimony.” The court here read and commented upon the letters and the testimony of Judge Canan, and continued :</p> <p>“We leave it with you to judge whether the evidence satisfactorily establishes the agency of Mr. Shoemaker, and the breach of confidence or violation of good faith alleged by the plaintiffs in their point. If it does, the plaintiffs having brought into court the money paid by Mr. Shoemaker, with interest to this time, your verdict should be for them. But if it does not, then you will proceed to the consideration of the remaining ground of claim, to which the greater portion of the evidence here relates, and which, in that case, would become the turning question in the cause. And we proceed to the discussion of that question.</p> <p>“ III. Can the plaintiffs stand upon the statute of limitations ?</p> <p>“ One entering upon a tract of surveyed land, under colour of title to it, and continuing to reside upon and occupy it, claiming it as his own, for twenty-one years, acquires thereby title, not only to the part or parts he actually encloses, occupies, and cultivates, but to the whole tract. This is the law. And the title thus acquired is such as to enable him to hold, or to regain the possession, in ease of a subsequent entry, even against the warrantee. And, in this connection, we answer affirmatively the first point submitted by tire counsel for the plaintiffs.</p> <p>“ There can be no doubt, in point of fact, upon the evidence, that Edward Boyle, going upon the land in the fall of 1821, in pursuance of his contract with Houston, entered under colour of title; or that he commenced his improvement, which wTas after-wards continued by his family, under a claim to the whole tract. The evidence would seem to show, also, that there was an occupancy to some limits without any material interruption until 1843. This, if it continued as it was commenced, an occupancy of the whole tract, or under a claim of the whole, gave title to the whole after twenty-one years. It is contended, however, that in 1838, ’39, or ’40, within twenty-one years from the commencement of the improvement, Mrs. Boyle and Hugh, the only members of the family then upon the land, had one hundred acres assessed as seated, and the balance of the tract’was unseated, and thus and thence ceased to hold and claim the whole tract by its boundaries, but, on the contrary, relinquished their possession of all of it but one hundred acres. The fact here asserted is proven by the assessors and the assessment. And the defendant’s counsel, in a written point submitted, ask the court to instruct you that if you ‘ believe that in 1838, 1839, or 1840, the occupants of the land in dispute refused to return the land in dispute to the assessor for the amount contained in the survey, but returned 100 acres, and directed the residue, 212 acres, to be assessed on the unseated list, without designating any boundary to the 100 acres that were returned on the seated list, the plaintiffs can only recover the quantity of land cleared and occupied for 21 years before the defendants got possession.” The plaintiffs, in their second point, ask us to instruct you that the act of Hugh, in view of the facts here asserted, ‘ could not divest the title of his brother and sisters in any part of the tract .claimed;’ and in their third point, that such act should have no effect to divest the title of any of the plaintiffs, if the jury believe that Hugh was at the time ‘of unsound mind.’ Any rights which any of the plaintiffs may claim under the statute of limitations, result from the acts of the member or members of the family in possession. Occupancy by one would avail all; but if the one having the possession, deserted or circumscribed it, the rights of all were affected by his act: and if it amounted to an interruption of the occupancy of the tract, or a part of the tract, the fatal result is not cured or averted by any reason which may be assigned for it. We answer the point of the defendants’ counsel, therefore, in the affirmative; and the second and third points of the plaintiffs in the negative. And we instruct you, that if you find the facts asserted in the defendants’ point as proven by the assessor and corroborated by the assessment, your verdict, as it respects this question, should be for the defendants, in the absence of any evidence designating, so as to enable you to find any part of the land as held in actual occupancy for twenty-one years.</p> <p>“ Having thus discussed the whole case, and answered in the course of the discussion all the points put by the counsel of the parties, it remains only to remind you that the cause is submitted to you upon two questions:</p> <p>“ 1. Does the evidence satisfactorily establish the trust relation asserted in the plaintiffs’ fourth point ? If it does, they are entitled to your verdict; otherwise, the decision must turn upon the question last discussed. And upon that part of the case, we have only to repeat, that if you find the facts as asserted in the defendants’ point, your verdict should be in their favour.</p> <p>“ To which charge and opinion'of the court the counsel of the plaintiffs and of the defendants except, and pray that the same may be reduced to writing and filed of record, which is accordingly done, and bills of exception signed and sealed.”</p> <p>The jury found in favour of plaintiffs, and judgment having been entered thereon the defendant sued out this writ, assigning here for error the following matters, viz.:</p> <p>1. The court erred in answering plaintiffs’ fourth point in the affirmative.</p> <p>2. The court erred in submitting the question of the trust relation of Edward Shoemaker, as a question of fact, to the jury, under the evidence in the case.</p> <p>3. The court erred in that portion of their charge, in which they say, “We instruct you, that if you find the facts asserted in the defendants’ point, as proved by the assessors, and corroborated by the assessments, your verdict should be for the defendants.” The court should have given peremptory instructions to the jury that the conduct of plaintiffs, as proved, suspended the running of the Statute of Limitations.</p> <p>4. The court erred in not instructing the jury that the defendants, having no notice of the trust, were not affected by it, and occupied the position of innocent purchasers.</p>

<p>Error to the Common Pleas of Armstrong county.</p> <p>This was an action of ejectment, brought by John Sheaffer against his brother Charles Sheaffer, to recover 106 acres of land in Pine township, Armstrong county. Both parties claimed under their father George D. Sheaffer, deceased. The plaintiff showed a regular chain of title from the Commonwealth down, vesting the title to the land in dispute in George D. Sheaffer, on the 7th day of March 1830. That George D. Sheaffer took possession of the land about the date of his title, and continued therein until about January 1855 ; and that on the 26th January 1855, he made his last will and testament, devising the land in dispute •to John Sheaffer, the plaintiff, and his heirs and assigns, in fee simple; that he died in September 1855, and that his will was duly proved and registered in Armstrong county, the 11th day of September 1855.</p> <p>Noire of these facts were disputed by the defendant, but in defence, he set up a contract between himself and his father, George D. Sheaffer, dated 20th November 1848, which relates to the same land, and was an agreement to let it to the defendant for the life of said G. D. Sheaffer and his wife, on condition that said Charles would maintain and support them during their lives, and the life of the survivor, with remainder in fee, on condition that he performed the agreement, &c.</p> <p>In answer to this, the plaintiff alleged, and offered evidence to prove, that the defendant had failed to perform the condition of the lease, and had therefore forfeited his right under said contract.</p> <p>.The evidence established these facts : That at the making of the contract of the 20th November 1848, George D. Sheaffer was in actual possession of the land in dispute. After which Charles moved on the farm, and that he and his father continued the joint occupancy of the farm in different houses, until his father moved off in January 1855. That, soon after Charles moved to the farm, difficulties and disputes arose between him and his father, in regard to the manner in which he provided for the old people. These disputes continued until the old man left, in January 1855, giving as his reason for so doing, the failure and neglect of Charles to provide for him and his wife. The court below took the case from the consideration of the jury, and charged, that whether the conditions of the lease or agreement were performed, was a question for them. If not, as this was a lease upon condition, the non-performance of the conditions would operate as a forfeiture, if the lessor elected to take advantage of it. That the lessor was not bound to do this, and if not, the right of the tenant continued. If the lessor intended to take advantage of the breach of condition he must do so promptly, and re-enter and declare the forfeiture. That forfeitures are not favoured; and as there was no evidence of any entry, the plaintiff could not recover.</p> <p>Under this instruction the jury found for the defendant; and judgment being entered on the verdict the plaintiff sued out this writ, assigning here—</p> <p>1. The court ei’red in taking the case from the jury, and deciding that there was “ no evidence of any entry or demand for the forfeiture.”</p> <p>2. The court erred in deciding that the said George D. Sheaffer must re-enter promptly and declare the forfeiture, and that an entry or declaration of forfeiture was necessary in this case to enable the plaintiff to recover.</p>