Volume 39 — Pennsylvania State Reports

This was an action of debt, brought by Passmore Williamson against Ellis Lewis, late a Judge of the Supreme Court of Pennsylvania, to recover the penalty of three hundred pounds, given by the 13th section of the Act of February 18th 1785, for refusing to grant him a writ of habeas corpus.

This was an amicable action of covenant between John S. Morton and Robert McQuigg, terre-tenant of James Henry Low, in which the following case was stated for the opinion of the court:— It is hereby agreed by and between the parties to the above-named suit, which is an action of covenant, brought on the first hereinafter mentioned ground-rant deed, that the following case be stated for the opinion of the court, in the nature of a special verdict:— Dr. J. Hartshorne and wife,…

This was a proceeding in Equity by the Library Company of Philadelphia, in trust for the Loganian Library, against Andrew J. Beaumont and John A. Beaumont, and Elias Ely and Oliver Parry, trustees for Ruth Ann Ely, Margaret W. Ely, Richard Elias Ely, and Ruth Ely; and also trustees for the children of Elias Ely, the children of Benjamin Parry and Jane Parry his wife, and the children of Thomas and Hannah Paxson.

<p>Error, to the District Court of Philadelphia.</p> <p>This was an action of trespass vi et armis, brought to July Term 1860, by Oliver Beirne against G-eorge Megee, late sheriff of the county, and grew out of the seizure by him of a drove of one hundred and ten cattle, under a writ of foreign attachment, issued out of the District Court for the city and county of Philadelphia, at the suit of John Hopkins against Andrew Beirne.</p> <p>Andrew Beirne, a resident of Monroe county, Virginia, was the maker of a promissory note for $2775.35, which had been protested for non-payment, and was held by Mr. Hopkins, of Baltimore, and it was to recover the amount of this note that the proceedings in foreign attachment were instituted. The writ was issued on the 16th of October 1858, and commanded the sheriff “ to attach a lot of cattle in the hands or possession of Alexander R. Humphreys, and summon him as garnishee.” In obedience thereto, the cattle in question were attached by the sheriff at a drove-yard in West Philadelphia, and Mr. Humphreys, who was offering them for sale, was summoned as garnishee.</p> <p>Alexander R. Humphreys had for many years been known as the agent or factor of Beirne, for the sale of his cattle. A few weeks before, Humphreys had taken another drove from the same herd to Baltimore, where he represented them to be the property of Andrew Beirne. He declared his intention of applying the proceeds of their sale to the payment of the very note on which the foreign attachment suit was afterwards brought, should he ascertain that he had endorsed the note, which, however, was not the case. He made the same representations as to the ownership of the drove that was attached, and it was from information derived from him that the keeper of the drove-yard pointed them out as the cattle of Andrew Beirne, to the officer having the writ of foreign attachment.</p> <p>Andrew Beirne himself had been in Philadelphia some weeks before the arrival of the cattle, had visited the drove-yard, and had made inquiries about the condition of the cattle market, stating that he had cattle on the way for sale here. He had also borrowed from Messrs. Haddock, Reed & Co., of this city, the sum of five thousand dollars, promising that Mr. Humphreys should repay the amount out of the proceeds of the sale of his cattle which would shortly arrive.</p> <p>When the writ of foreign attachment was served, Humphreys said nothing about Oliver Beirne being the owner of the cattle. Such was the testimony of the sheriff’s officer, and of the keeper of the drove-yard, although denied by Humphreys. He abandoned the cattle to the sheriff, and immediately returned to Monroe county, Virginia.</p> <p>On the 8th of October 1858, on affidavit that the cattle were chargeable, the court made an order for their sale, under which they were sold at auction for $3835.68, which fact was included in the return to the writ. On the 1st of January 1859, in obedience to a rule requiring it, the sheriff paid into court the sum of $3558.31.</p> <p>On the 21st of September 1859, judgment was entered against the defendant in default of appearance, and the damages assessed at $3343.65. A scire facias was then sued out against the garnishee, on which, on two returns of nihil, there was judgment for the amount of the judgment on the foreign attachment, with interest and costs. An execution against the garnishee was then awarded, which was returned nulla bona. On the 5th of May, the plaintiff’s recognisance to restore was filed, and the money in court applied to the payment of the judgment on the scire facias, with interest and costs.</p> <p>This action of trespass was commenced November 6th 1858, by Oliver Beirne, who claimed that he and his brother Andrew were the owners of the cattle which had been attached at the suit of Mr. Hopkins.</p> <p>On the clay when the cattle were sold, James W. Paul, Esq., as attorney for Oliver Beirne, gave notice to the sheriff that the cattle belonged to said Oliver, and that he would be held responsible if he retained or proceeded to sell them.</p> <p>The declaration contained four counts, each charging the defendant with seizing and carrying away a number of cattle belonging to the plaintiff. The defendant pleaded “Not guilty,” and the following special plea: “And for a further plea in this behalf, by leave of the court, &c., the said defendant further saith, that, heretofore, and before the said time when, &c., to wit, on the 16th day of October, A. d. 1858, one John Hopkins sued and prosecuted out of this court a certain writ called a foreign attachment, directed to the sheriff of Philadelphia county, by which said writ the said sheriff was commanded to attach the said Andrew Beirne, by all and singular his goods and chattels, lands and tenements, in whose hands or possession soever the same might be, so that he be and appear before this honourable court, to be holden at Philadelphia, the first Monday of December then next, to answer the said John Hopkins of a plea of trespass in the case, &c.; and that he summon all persons in whose hands or possession the said goods and chattels, or any of them, may be attached, so that they and every of them be and appear before the said court, at the day and place aforesaid, to answer what might be objected against them, and abide the judgment of the court therein: and by which said writ the said sheriff was further especially commanded to attach a lot of cattle in the, possession of one Alexander R. Humphreys, and summon him as garnishee, and that the said sheriff should have then there that writ, which said writ afterwards and before the return (day) thereof, to wit, on the day and year last aforesaid, was delivered to the said now defendant, who then and from thence, whilst the said writ was in force, was sheriff of the said county of Philadelphia, to be executed in due form of law: by virtue of which said writ the defendant, so being sheriff, as aforesaid, afterwards, to wit, at the said time, when, &c., in obedience to the said writ, seized and took the said lot of cattle, viz.: one hundred and ten cattle, then being in the possession of the said Alexander R. Humphreys, and then and there summoned the said Humphreys to be and appear before the said court at the day and place aforesaid, to answer as in the said writ directed; and the said one hundred and ten cattle are the same goods and chattels in the said declaration mentioned and referred to, and no other; and afterwards the said defendant being sheriff, as aforesaid, did, by virtue of and in obedience to an order of this honourable court, sell the said one hundred and ten cattle, by public sale or vendue, and by virtue of and in obedience to the ■ same order, paid the net proceeds thereof into this court, and duly returned the said writ accordingly, which are the supposed trespasses in said declaration mentioned, of all which proceedings the said plaintiff had due notice — and this the defendant is ready to verify.”</p> <p>To this special plea the plaintiff demurred, and assigned the following causes of demurrer: “ The same (plea) is defective as an argumentative general issue, and in substance, because it does not allege that Andrew Beirne, against whom the Avrit issued mentioned in the plea, was at any time the owner of, or interested in the said goods and chattels, for the taking of which the action is brought, and also for that if the facts in the plea mentioned were at any time or under any circumstances a justification of the taking, then the plea is no more than the general issue, and should be pleaded as such; and also, because no material fact .is traversed, nor is any alleged, which avoids the matter alleged in the declaration.”</p> <p>The demurrer was sustained, and the case therefore went to the jury on the plea of “ Not guilty.”</p> <p>On the trial, the plaintiff offered evidence that he had purchased, in September 1857, from Alexander R. Humphreys, a herd of five hundred and seventy-seven cattle, for the sum of nineteen thousand three hundred and sixty-nine dollars; that the cattle attached Avere part of this herd; that the following agreement was executed at the time, and indicated the object of the purchase :—</p> <p>“Agreement made and entered into this 17th September 1857,' between Oliver and Andrew Beirne: the said Oliver has furnished" five hundred and seventy-seven stock cattle, at a cost of nineteen thousand three hundred and sixty-nine dollars; now the said Andrew undertakes to handle and graze the same for the fall market of 1858, when the said cattle are to be sold, and the proceeds of said sale are first to be applied to the payment of the' purchase-money of said cattle, with interest thereon from this date, and the balance thereof to the payment of the debt and interest now held by said Oliver against said Andrew. Witness our hands and seals on the day aforesaid.</p> <p>Andrew Beirne. [Seal.]</p> <p>Oliver Beirne. [Seal.]”</p> <p>That, in compliance with this agreement, the cattle were grazed on Andrew Beirne’s plantation, and taken charge of by his servants until they were driven to market in the summer and fall of 1858. The principal witness for the plaintiff was Humphreys himself, who testified that the whole herd was originally purchased from him by Oliver Beirne, at the price mentioned in the foregoing agreement; that the purchase was made at Andrew Beirne’s farm, where the cattle had been driven; that the drove referred to as having been offered for sale in Baltimore, was sold by him on account of Oliver Beirne; that of the net proceeds, he had paid four thousand dollars to Oliver Beirne, and by the direction of Oliver had left six hundred dollars in the Bank of Monroe County for Andrew, to defray the expense of sending the next drove to market; that the next drove was that which was attached ; that, before leaving Monroe county to sell this drove, Oliver Beirne had taken him to his house, and showed him the agreement between his brother Andrew and himself, and explained to him that the profit made by the sale of the cattle was to be credited on Andrew’s bond; and that he (the witness) was employed to sell these cattle on commission solely by Oliver Beirne, and was accountable to him only. It appeared from the testimony of other witnesses, as well as that of Humphreys, that the brothers Beirne resided within eight miles of each other ; that Andrew owned a tract of some seven thousand acres of land well adapted and used for grazing, on which for many years before 1857, he had annually grazed for market from four hundred to six hundred head of cattle ; that he was involved in debt; and that his brother Oliver, who was a retired merchant and a man of great wealth, was his creditor to the amount of fifty thousand dollars, to secure which debt a portion of Andrew’s estate had been conveyed in trust.</p> <p>The defendant’s counsel requested the court to instruct the jmT></p> <p>1. That this action cannot be maintained, if the cattle attached by the sheriff were, when attached, in the possession of Alexander R. Humphreys, as consignee, for the purpose of sale on commission.</p> <p>2. That the writ of foreign attachment in Hopkins v. Beirne, justified the seizure of the cattle by the defendant, as sheriff, and therefore the verdict should be for the defendant.</p> <p>3. That, under the agreement between Oliver Beirne and Andrew Beirne, given in evidence on the part of the plaintiff, Andrew Beirne had an interest in the cattle at the time of the seizure by the defendant, as sheriff, that was attachable under the writ of foreign attachment in Hopkins v. Andrew Beirne, and that therefore the verdict should be for the defendant.</p> <p>4. That, if the jury should believe that the seizure of the cattle by the defendant, as the property of Andrew Beirne, was induced by the representations and statements of the plaintiff’s agent, that the cattle were the property of Andrew Beirne, their verdict should be for the defendant.</p> <p>5. That, if the jury should believe from the evidence, that the agreement between Oliver and Andrew Beirne was intended to secure Oliver Beirne the. payment of the price, whilst the possession and ownership of the cattle were in Andrew Beirne, tlieir verdict should be for the defendant.</p> <p>6. That the omission of Oliver Beirne, when notified of the pendency of the foreign attachment against Andrew Beirne, and of the seizure of the cattle by virtue thereof, to present his claim to the said cattle for adjudication in that suit, precludes his recovery in this action.</p> <p>7. That the judgment rendered against Alexander R. Humphreys, as garnishee of Andrew Beirne in the foreign attachment suit, is conclusive evidence of Andrew Beirne’s ownership of the cattle; and that therefore the verdict should be for the defendant.</p> <p>8. That the defendant, in selling the cattle on the 25th October 1858, was acting in obedience to an express order of the court, and was not bound to regard the notice made on the morning of the sale on behalf of Oliver Beirne; and the sheriff is not responsible for the said sale.</p> <p>9. If the cattle had been the property of Oliver Beirne, it was his duty, on being informed of their seizure, to have applied to the court for leave to intervene in the foreign attachment suit, in order that his claim to the cattle might be adjudicated; and his rights would have been properly adjudicated therein.</p> <p>10. When Oliver Beirne received notice of the seizure of the cattle, and that they were about to be sold, if he had the right to prevent the sale, he ought to have made an application to the court to rescind the order made for their sale, or for a postponement of the time of sale; but the sheriff is not responsible in the suit for the sale of the cattle.</p> <p>The court declined affirming any of the defendant’s points.</p> <p>Under the charge of the court below, there was a verdict and judgment in favour of the plaintiff for $5018.82, whereupon the defendant sued out this writ, and assigned for error here the refusal of the court below to affirm the points as above given, and the entry of judgment for plaintiff on the demurrer to defendant’s special plea.</p>

This was an action of assumpsit, brought by Pearson S. Hal-stead, John C. Chamberlain, and Ebenezer Pray, dealing under the firm of Halstead, Chamberlain & Co., against Robert’ P. Black. The declaration set forth a promissory note made by defendant, July 2d 1857, to Stiles & Carey, for $2000, at ninety days, with an endorsement thereof by Stiles & Carey, to the plaintiffs.

This was an action brought in the District ‘Court, to December Term 1859, by The Philadelphia Association for the Relief of Disabled Firemen, against George Wood, who was sued with James H. Montgomery and Joshua P. Ash, and in which the following facts were agreed upon as a case stated for the opinion of the court, with leave to turn the same into a special verdict.

This was an ejectment, brought July 21st 1856, by John W. Guernsey against David Churcher and R. W. Churcher, for a tract of land in Jackson township, containing fifty-four acres and thirteen-hundredths. Under the charge of the court below there was a verdict and judgment in favour of the plaintiff, whereupon the defendants sued out this writ, and assigned for error here the instructions of the court under which the verdict was rendered.

Error, to the Common Pleas of Susquehanna county. This case came into the Common Pleas by appeal from the judgment of a justice of the peace, before whom it was commenced by John Lord against F. P. Grow & Brothers. The defendants pleaded non assumpsit, payment, and set-off with leave, &c. The case was this:— On the 9th of April 1859, the plaintiff went to the defendants, who are dealers in grain, for the purpose of purchasing some seed spring wheat, for sowing.

Tliis was an action of assumpsit, brought September 3d 1859, by the Girard Bank in the city of Philadelphia, against the Bank of Penn Township, to recover the amount of a check for $1150 with interest, which had been drawn on the Bank of Penn Township, marked “good” by the proper officer of the bank, and endorsed to the Girard Bank by the holder.

These were appeals by the Farmers’ and Mechanics’ Bank, and other creditors of the Bank of Pennsylvania, and also by the Commonwealth and the assignees, from the decrees of the court on the first account of the assignees of the Bank of Pennsylvania.

This was an appeal to the Common Pleas, from the judgment of a justice of the peace, in an action of debt on book account, in which Daniel Sweeny was plaintiff, and Abijah Park defendant. On the 19th of March 1857, the justice gave judgment in favour of plaintiff for $70.03, and on the 3d of April 1857, the defendant offered plaintiff judgment for $50 and costs, which offer he refused to accept.

This was an appeal for John Henry Weir Young, an infant son of Anna Maria Young, deceased, from the decree of the Orphans’ Court, dismissing his exceptions and confirming the report of the auditor appointed to audit, settle, and adjust the account of William Young and William Weir, executors of the last will and testament of said Anna Maria Young, deceased, and to report distribution.

This was an action of ejectment, brought August 22d 1860, by George Killam against Jeptha Killam, for a tract of land in Manchester township, Wayne county, in which a case was stated for the opinion of the court below, embodying the following facts:— George Killam, the plaintiff, was the father of two illegitimate children born of the body of Elizabeth, afterwards intermarried with Nathaniel Tyler.

This was a proceeding to reverse the decree of the court below, striking off a judgment from the records of the Common Pleas, in favour of Alfred Horner, Jr., and James McCann, Jr., trading as Horner & McCann, against Adam Hower.

This was a feigned issue under the Sheriff’s Interpleader Act, to try the title to a certain stock of store goods seized in execution as the property of William M. Wallace, Jr., which was claimed to be the property of his wife Catharine, in which Catharine Wallace was plaintiff, and Henry Robinson and William H. Parsons, partners trading as Henry Robinson & Co., were defendants.

<p>Bight of Widows and Children under the Acts of 1851 and 1859, as against Lien- Creditors.</p> <p>1. A widow’s right to retain real or personal property of the estate of her deceased husband to the value of §300, under Act 14th April 1851, and 8th April 1859, is superior to that of a mechanic's lien creditor.</p> <p>2. The only lien protected by the statute 14th April 1851, is that for unpaid purchase-money. No other lien can prevail against the widow or children.</p>

This was a scire facias sur mortgage by the William Tell Savings Fund Association, against John Reiser, brought August 25th 1860. The plaintiff was incorporated by the Common Pleas, September 1853, having its place of business in Philadelphia.

Michael Kelly, on the 30th of May 1855, gave his judgment-bond for $2000 to the Perseverance Building Association, on which judgment was entered September 11th 1857.

On the 26th of January 1860, the West Philadelphia Savings and Building Association entered up a judgment against Robert Denny, who had executed a bond and warrant of attorney to confess judgment in favour of the association, July 13th 1855, for $1000. On the 28th of January 1860, on the application of Robert Denny, a rule was granted to show cause why the judgment should not be opened and the defendant let into a defence.

<p>Certiorari to the Orphans’ Court of Philadelphia.</p> <p>This was an appeal by The Premium Fund Association of Philadelphia from the decree of the Orphans’ Court, dismissing exceptions which Avere filed in their behalf, and confirming the report of the auditor on the account of the executors of John Jackson, deceased.</p> <p>The case was this: The executor of the last will and testament of John Jackson, upon the order of the Orphans’ Court, sold certain of his real estate, received the money therefor, and filed his final account.</p> <p>This account was referred to J. Alexander Simpson, Esq., to audit, and report distribution of the money in the accountant’s hands. The appellants held a mortgage against the premises sold by said executor, and claimed the fund in his hands by virtue thereof.</p> <p>This mortgage was dated March 28th 1857, and recorded the same day upon premises described in the hand-bill attached to the searches, as Nos. 2 and 3, upon which the mortgagees had receipted for $900, as a part of the purchase-money under the order of court, as per account. The proceeds of sale of the mortgaged premises (without deducting expenses) amounted to the sum of $1200, and the mortgagees claimed the whole of the net proceeds as still due them according to the terms of the agreement between them and the said decedent, and under the provisions of the Act of Assembly of 12th April 1859. (P. L. 546.)</p> <p>It appeared from the evidence, that the decedent had borrowed from the association, on the 28th of March 1857, on the day the mortgage was executed, the sum of $1000, for which he agreed to pay interest at the rate of nineteen mills to the dollar per month, and that said loan was made for the period of one hundred and sixty-eight days, or five months and eighteen days of bank time. That the interest at this rate was deducted at the time of the loan, whereby the actual amount paid by said association to said decedent for the mortgage thus given, was only $886. When the loan became due it was renewed by him at the same rate for six months, and the interest was paid at the time of renewal.</p> <p>With these facts before him, and for the reasons set forth by the learned president judge of the Court of Common Pleas of Montgomery county, in the case of The Marble Building Association v. G-. W. Hooker, and published in the Legal Intelligencer of the 11th day of November 1859, vol. 16, No. 45, pp. 356-8, the auditor decided that the said association was entitled to the sum of $886, with interest from the 28th day of March 1857 to the 21st day of June 1859, the day of the sale of the real estate. After allowing the interest paid by the said decedent at the time of renewal, and the sum receipted for by said association on account of the purchase, as per the order of court, and also deducting the sum of $16.91, being the amount of dues, &c., paid in after deducting sundry expenses and fines for non-payment— the statement would make their claim as follows:—</p> <p>Nov. 28th 1857, amount loaned on mortgage, . $886.00</p> <p>Interest, March 28th 1857 to June 21st 1859, 2 years, 2 months, and 24 days,.....118.88</p> <p>Cr. by interest paid at the time of renewal, $114.00 “ net amount of dues as above, . . 16.91</p> <p>“ amount of rec’t of mortgagees,' . 900.00</p> <p>-$1030.91</p> <p>Amount overpaid mortgagees, $26.00</p> <p>He, therefore, rejected the claim as having been fully paid.</p> <p>The following exception was filed by the appellant in the court below to the report of the auditor, and a reversal of the report contended for, viz.: because the auditor did not allow appellant’s claim.</p> <p>The court below dismissed the exception, and confirmed the report.</p> <p>The association thereupon removed the case into this court, and assigned for error here—</p> <p>1. That the court below erred in dismissing appellant’s exception, and confirming the auditor’s report.</p> <p>2. The court below erred in not allowing appellant’s claim.</p>

This was an appeal by Francis Blackburne from the decree of the court confirming the report of the auditor appointed to audit, settle, and adjust his account as assignee of Thomas Blackburne and Elizabeth his wife, in trust for the benefit of creditors. The assignment was made January 21st 1859, and was followed in due time by an inventory and the giving of security, as required by the Act of Assembly.

<p>Surety on Bond of Trustees, Liability of — Effects of Breach accruing after Death of Obligor.— What Contracts survive.</p> <p>1. Where the contract of a decedent is personal and his performance of it is the essence thereof, his representatives are not liable, except so far as it has been broken during his lifetime; but a contract to pay money at a future time, or on a future contingency, survives the obligor, and binds his representatives.</p> <p>2. The obligation of a surety is coextensive with that of his principal, and there is no limitation short of compliance with the original undertaking.</p> <p>3. The indefiniteness of the obligation of a surety is not a sufficient ground to relieve his personal representatives from the contract by suretyship.</p> <p>4. Where a trustee had been dismissed from his trust, and a decree had against him for the amount of the trust fund, and his surety had died, after proceedings commenced against the trustees, but before the making of the decree, it was held, in an action on his bond against the executors of the surety, that the contract of suretyship survived against them.</p> <p>5. The non-compliance on the part of the trustee with the decree made in the proceedings against him, was not the original breach of the condition of the bond; but only evidence that a breach had previously accrued which justified the proper tribunal in making the decree.</p>

<p>Trespass for Injury committed by Son of Defendant. — Liability for Negligence and Misconduct. — Trespass and Gase distinguished.</p> <p>1. Trespass will lie against a father for an injury committed by his team, when driven by a son with whom he was riding at the time.</p> <p>2. Though a binding direction to the jury by the court, that the defendant was liable in an action brought against him for damages resulting from the injury, would be error, yet where the question of liability under the evidence was fairly left to the jury, .who found for the plaintiff, under proper instructions that the defendant was only answerable for carelessness or wilful misconduct, and not if the damages resulted from accident or mutual negligence, the judgment will not be reversed.</p>

<p>Appeal from tbe Orphans’ Court of Philadelphia county.</p> <p>This was an appeal by William Z. Rhoads, one of the legatees under the will of Joseph Rhoads, from the decree of the Orphans’ Court, dismissing his petition, in which he prayed for a reference of the first account of the executor of the said deceased to an auditor. The case was this:—</p> <p>Joseph Rhoads died in 1846. By his will he devised his whole estate to his widow, Rebecca Rhoads, for life; remainder to his brothers and sisters and their children, and appointed his widow and Thomas E. Pryor executors. In February 1847, the executors filed an account, exhibiting a balance in their favour of $1858.71. No exceptions wqre filed to this account, and it was confirmed absolutely by the Orphans’ Court in May 1847, without reference to an auditor, the consent of Rebecca Rhoads as “ devisee of the real and personal estate of the testator” to this mode of confirmation being endorsed on the account.</p> <p>Rebecca Rhoads, the widow, died in 1857. On the 23d of February 1859, Pryor, the surviving executor, filed a “ second and final account,” which was referred to an auditor for settlement and distribution. The balance of $1358.71 from the former account is carried forward, and credited in this account.</p> <p>The counsel for the legatees in remainder objected to this credit, and asked to show errors in the,first account, but the auditor overruled the objection, and the Orphans’ Court sustained the report.</p> <p>Pending the proceedings before the auditor, one of the legatees, William Z. Rhoads, presented a petition to the Orphans’ Court, praying for a reference of the first account for settlement.</p> <p>The petition stated generally that there were manifold errors in the first account, as set forth in the exceptions annexed to the petition, viz.: — •</p> <p>1. A credit of $1022, as cash paid for testator’s bond to S. & E. Castner, which it was averred was the joint bond of the executor and the testator.</p> <p>2. A credit of $2755.49, the amount of testator’s check, with interest, which it was averred was not evidence of any claim by Pryor on the estate.</p> <p>8. A credit of $390, cash, paid for John Hancock’s bond to testators for use of Pryor, which use was denied.</p> <p>In his answer Pryor denied all the petitioner’s averments under his affirmation.</p> <p>The Orphans’ Court dismissed the petition.</p> <p>The report of the auditor was then confirmed absolutely, whereupon the case was removed into this court by the petitioner, by whom the following errors were assigned:—</p> <p>1. The court erred in confirming the report of the auditor.</p> <p>2. In dismissing the petition of the appellant, and refusing to refer the exceptions to the first account to an auditor.</p> <p>3. In confirming the first account filed in 1847.</p>

This was a feigned issue upon a precept from the Register’s Court, to try certain disputed facts relating to a paper writing, purporting to be the last will and testament of John Daniel, deceased, in which Robert Daniel, William Lerch and Catharine his wife, late Catharine Daniel; Daniel Rudolph and Matilda his wife, late Matilda Daniel; Joseph Daniel, and Owen Leopold and Maria his wife, late Maria Daniel, were plaintiffs: and William Daniel, Charles Daniel, and Ephraim…

<p>Rights and Duties of Defendant claiming the benefit of the Exemption Law. — Form of Claim.— When to be made. — Evidence as to Origin of Debt, Admissibility of.</p> <p>1. A constable, sued as a trespasser for seizing and selling the debtor’s property in disregard of his claim for the benefit of the $300 Exemption Law, cannot go behind the judgment of the justice, and prove that the note upon which it was founded embraced a book account, part of which was before 4th July 1849.</p> <p>2. The Exemption Act of April 9th 1849 requires that the defendant demand an appraisement: but any words which will apprise the officer that the statutory exemption is the thing claimed by the notice or demand, are sufficient.</p> <p>3. But a demand made upon the day of sale is too late. It must be made, as regards personal property, before the day of sale, and generally before the advertisements are put up, unless there are special circumstances, such as absence from home or ignorance of the levy, to excuse delay.</p>

<p>Appeal from tbe Orphans’ Court of Philadelphia county.</p> <p>This was an appeal by Samuel Calhoun, administrator of H. M. Ross, from the decree of the Orphans’ Court, dismissing his petition; in which he prayed for a decree against Mrs. Elizabeth B. Gibson, surviving executrix of her father, John Beale Bordley, requiring her to pay to the estate of H. M. Ross the sum. of money which appeared to be due, by the auditor’s report, on ah account which had been filed for Mrs. Gibson, by her husband, James Gibson, since deceased.</p> <p>The facts of the case are very fully stated in the opinion of this court, the more prominent of which were the appointment of Elizabeth Bordley as executrix of the will of John Béale Bordley, in 1804; by which the income of $40,000 was given to Elizabeth, and the same sum to his daughter, Mrs. Ross, remainder to her children, as also one-half of his residuary estate; the marriage of Elizabeth with James Gibson, in 1817; the death of Mrs. Ross, in 1829; the insolvency of Mr. Gibson; the filing of a bill in equity by the children against Mr. and Mrs. Gibson, for the principal of the annuity fund, and an account of the residuary estate, in which it was charged that Gibson was insolvent, and that the funds of the Bordley estate had been used by him and his wife for their own purposes; the filing of >a petition in the Orphans’ Court, in 1856, praying for a citation, directed to Mr. and Mrs. Gibson, requiring them to account for the residuary estate, under which an account was filed by him as “ executor of Bordley’s will, by intermarriage with his executrix;” the death of Gibson; the reference of this account to an auditor, before whom Mrs. Gibson appeared as. for the accountant; the insufficiency of Gibson’s estate to answer the decree for the payment of the balance found by the auditor; all which was followed by this petition asking for a decree against Mrs. Gibson for the payment of this balance out of her annuity fund of $>40,000, which had been secured by an ante-nuptial settlement as her separate estate, and which it had been decided could not be reached, to make good the claim of the children of Mrs. Ross.</p> <p>The petition and answer in the court below raised the question of the personal liability of the executrix for the devastavit of her husband, to whom she was subsequently married — the effect of a former decree of the Circuit Court of the United States, dismissing a bill against the executrix, wherein a claim arising out of the same estate was at issue, and the legal or equitable discharge from liability resulting from the lapse of time and the laches of'the petitioner or his predecessors.</p> <p>The Orphans’ Court (Thompson, P. J.), on hearing, dismissed the petition of Mr. Calhoun, who thereupon removed the case into this court, assigningvhere the decree of the court below for error.</p>

This was a sci. fa. brought August 20th 1859, upon a lien filed by the plaintiffs against the First Associated Reformed Presbyterian Church, owner or reputed owner, and Alexander Nicholson, contractor, for the sum of $2346.50, the last item furnished being on the 14th of January 1857. The claim was filed May 26th 1857. A scire facias had been issued in this case November 18th 1857, upon which, after issue joined, a non-suit was entered.

<p>Appeal from the Orphans’ Court of Chester county.</p> <p>This was an appeal by Joseph Logan, from the decree of the Orphans’ Court confirming the report of the auditor appointed to distribute the balance of the estate of William Coffee, deceased.</p> <p>The report of the auditor presented this case :—</p> <p>Joseph Coffee, deceased, made his will, dated January 25th 1819, which was proven on the 22d of March following. By it he gave to his wife Margaret, certain specific articles. To his son William, certain specific articles. To his son Joseph, one dollar and a Bible, after the decease of his wife- Margaret. To his daughter, Sarah Forbes, one dollar. To his daughter, Keziah Logan, one dollar, and one-half the pewter vessels. To John Butler, thirteen dollars and thirty-three cents, to be applied to repairing the grave-yard wall at East Cain meeting-house.</p> <p>He then disposed of the residue of his estate as follows : — ■</p> <p>“ Item — I desire that all my estate, real and personal, exclusive of the articles above bequeathed, be put to public sale, and all the money arising therefrom, after complying with the above, is to be put to use, and one-half of the interest arising therefrom is to be paid yearly and every year unto my wife Margaret, and the other half to my son William, during their natural lives; when one of the above-named deceases, my grandson, Joseph Logan, are to draw their part of the interest.” This residuary clause is the only part of the will that affected the distribution.</p> <p>Robert Miller was appointed executor in the will, but resigned, and was succeeded by James Davis, to whom letters of administration, with the will annexed, were issued. Before settling the estate, he died. His executors filed an account of his administration, which was confirmed in 1856, showing a balance for distribution of $309.22. Margaret Coffee, the widow, died several years since, whereupon the one-half of the residuary estate was paid to Joseph Logan, who was a grandson of the testator. William Coffee survived the widow, and died, in 1858, intestate and unmarried. On his estate Sarah D. Pinkerton took out letters of administration, and, on the 18th of July 1859, presented her petition to the Orphans’ Court, setting forth the settlement of the account of the administration of Joseph Coffee’s estate, by the executors of James Davis, the administrator de bonis non, and the balance in their hands as above stated, claiming it as the representative of William Coffee, deceased, and praying for the appointment of an auditor to distribute the same to the persons entitled thereto. An auditor (Francis James, Esq.) was accordingly appointed,, before whom James Logan and Sarah D. Pinkerton appeared by counsel, each claiming the whole of the balance in the hands of the executors of William Coffee’s administrator, to wit, $309.22.</p> <p>In the original will, the residuary clause was written with the following erasures and interlineations: “ when one of the above-</p> <p> my grandson Joseph Logan </p> <p> named deceases, the-other surviving■ are to draw their part.” </p> <p>The auditor, for the reason given in his report, decided that the fund passed under the will by implication to William Coffee, as the survivor of his mother, and therefore directed it to be paid to Sarah D. Pinkerton, as his administratrix.</p> <p>Exceptions were filed to this report, but the Orphans’ Court, on hearing, dismissed the exceptions, and confirmed the report. The case was then removed into this court by Mr. Logan, who assigned the decree of the court in the case for error.</p>

Error, to the Common Pleas of Bradford county. This was an action of trespass brought by Israel Smith against Samuel Kellum, 'Charles Kellum, and Hampton Updyke, to recover damages for injury done by plaintiff’s cattle to the grass crop, and pasture, on an island in the Susquehanna river, owned by the plaintiff. As to the two last-named defendants a nolle prosequi was entered.

<p> Collateral Securities, Rights, Duties and Liability of Solder. </p> <p>1. Where a note, left by the owner with a broker to be sold, .was pledged by him, for a loan to himself, and on default of payment was sold by the. pledgee for much less than its face, without notice, it was held, that the admin istrator of the owner, having tendered the advance made by the pledgee, war entitled to recover from him the difference between that sum and the face of the note. Whether proper to sell the collateral not determined, because the question not raised.</p> <p>2. The bailee of a pledge or pawn must give' notice to' the pledgor, of an intent to sell, after default of payment, and also of the time and place of sale, in the absence of a contract to sell ex mero motu.</p>

This was an amicable action, entered in the Common Pleas of Carbon county, between the County of Carbon as plaintiff, and the Carbon Iron Company as defendant, in which the following case was stated for the opinion of the court:— It is agreed between the above-named parties that an amicable action be entered on the records of said court, and the following statement of facts agreed upon, shall be considered in the nature of a special verdict, with liberty to either party to…

This was an action of assumpsit by Orange White against Elijah Robinson and Jonathan Smith.

This was an action on the case brought September 14th 1858, by John Murphy against The Pottstown Gas Company.

<p>Presumption of Liability of Party, arising from the position of Ms Signature on the Obligation on which suit is brought.</p> <p>1. A party is primA facie bound by his signature to an instrument importing an obligation or an engagement, whether it be signed on the right or the left hand of the paper, if there is no room for an inference that any other was intended to be the signer.</p> <p>2. But such a presumption does not exist where the position of the signature is equivocal, as that of a subscribing witness to an instrument under seal, prepared for and executed by one person only.</p> <p>3. Hence, where one executed a single bill, and opposite his name, on the left, in the place for the subscribing witness, the name of another was written, who was sought to be held as co-promissor, because the word witness did not appear, it was held, that the signature of the defendant to the paper was not primA facie evidence that it was his promise, to go to the jury on proof of execution merely, and that it was error so to instruct the jury.</p>

<p>Partnership Property. — Transfer of by Assignment of Individual Partners.</p> <p>S. and T., trading as partners, made several assignments, each of his private property and interest in the firm, on successive days to the same assignees, who accepted both trusts. Afterwards a firm creditor issued execution and levied upon the partnership property. Held, that, in the absence of proof to the contrary, the assignment of the firm property to assignees by one of the firm was assented to by the other;</p> <p>That the partnership property vested in the assignees, and could not be levied upon by the sheriff after the assignments had been made and accepted.</p> <p>Though the rule is that the equities of creditors are to be worked out through the equities of th'e partners, yet where the property is parted with by sale severally made and neither partner has dominion or possession, there is nothing through which the equities of the creditors can work, and hence the rule will not apply.</p>

<p>Award of Referees merged in Judgment of the Justice.— Cause of Action as set out on Docket, binding on Plaintiff. — Evidence of Acts inconsistent with Ownership of Property.— Competency of Witnesses as to Acts and Declarations of Parties.</p> <p>1. The award of referees chosen under the Act of Assembly, providing for a reference of actions commenced before justices of the peace, is of no legal value, after judgment has been entered upon it by the justice ; and it need not be produced on the trial of a case in which the proceedings before the justice are offered in evidence by one of the parties.</p> <p>2. The seizure in execution by the plaintiff in a judgment of certain specific property is an act which is very inconsistent with a previous claim of ownership of the same property; and may be given in evidence to rebut such alleged ownership when it is offered as a defence in an action brought to recover damages for the seizure.</p> <p>3. A plaintiff whose cause of action is set out on the docket of a justice is concluded by it. He cannot impeach it collaterally, or affect it by showing what was proved on the trial.</p> <p>4. A witness is not precluded by any rule of law from proving a sale of personal property by the acts and declarations of the parties, though he was not present when the sale took place.</p>

<p>Error to the Common Pleas of Lehigh county.</p> <p>This was an action of debt, brought November 6th 1857, by Daniel L. Fetherolf against Isaac Barton, to recover the amount alleged to be due upon a promissory note, signed and delivered by the defendant, to the order of Fetherolf, Montgomery & Co., and endorsed in blank by the latter.</p> <p>To a declaration setting forth the note in form, the defendant pleaded nil debet, to which was added the plea of payment with leave, &c.</p> <p>On the trial the plaintiff gave in evidence a promissory note, dated May 1st 1857, Isaac Barton to Fetherolf, Montgomery & Co., at 60 days, for $420, endorsed in blank by payees, and rested.</p> <p>The defendant then called Alexander Montgomery, and offered to prove by him the truth of the matters set forth in a notice of special matter, which was served on the plaintiff according to the rules of the court, viz., that he, the defendant, signed and delivered the note upon which the above suit was brought to Fetherolf, Montgomery & Co., of the city of Philadelphia, the payees named therein as an accommodation note, for which' the said defendant never received any value whatever. That the' said firm of Fetherolf, Montgomery & Co., handed over the said note endorsed by them to James E. Lewars & Co., as collateral security, for the payment of the check of the former, given to the latter for an indebtedness to them. That the said check or checks, to secure the redemption of which the said note had been given, were redeemed, and taken up by the said Fetherolf, Montgomery & Co., a day or two after its or their maturity, at which time the said note (and after its maturity) was returned by the-said James E. Lewars & Co. to the said Eetherolf, Montgomery & Co., and was by Alexander Montgomery, one of the said firm, locked up in the fireproof of the said firm. That the said note remained in the said fireproof about two months after its maturity and redemption, when it fell into the hands of the plaintiff, who is a brother of Amos Eetherolf, one of the firm of Eetherolf, Montgomery & Co., without the consent or knowledge of Alexander Montgomery, one of the other members of the said firm. That the said note, therefore, at the time it fell into the hands of plaintiff, was overdue, and the passing of it to plaintiff was a fraud upon those members of the firm who were not cognisant of the act at the time it was done. That on the evening of the day of the maturity of the said note, defendant called upon Eetherolf, Montgomery & Co., and demanded it, when he was told by Amos Eetherolf, one of the firm, that defendant’s name was torn off.</p> <p>At the instance of the plaintiff, the witness was examined on his voire dire, when he answered as follows: — “ I was a member of the firm of Eetherolf, Montgomery & Co. The endorsement on this note is in my handwriting.”</p> <p>The plaintiff’s counsel thereupon objected to the witness as incompetent. The court (Eindlay, P. J.) sustained the objection, rejected the witness, and sealed a bill of exception for the defendant.</p> <p>The defendant then offered to prove, by the same witness, that “after the maturity of the note it was returned to the said Eetherolf, Montgomery & Co., and the title to the same then became vested in them;” to which offer the plaintiff objected. The court sustained the objection, rejected the evidence, and sealed a second bill of exceptions for the defendant.</p> <p>The defendant thereupon offered to prove by the same witness all the matters of fact set forth in his notice of special matter, excepting want of consideration in the giving of the note and transfer, to which the plaintiff objected as too indefinite, and as immaterial and irrelevant, and because the witness was incompetent. The court sustained the objection, rejected the evidence, and sealed a third bill of exceptions for defendant.</p> <p>The defendant then offered to prove, by the same witness, that the firm of Eetherolf, Montgomery & Co. paid the said note to James E. Lewars & Co. two days after maturity, and that at the time of said payment the said note was in the possession of said James E. Lewars & Co.; to which the plaintiff, by his counsel, objected, on the ground that the witness was incompetent, and the evidence irrelevant and immaterial. The court rejected the evidence, and sealed for the defendant a fourth bill of exceptions.</p> <p>The defendant then produced and delivered to the witness a release “ of and from all claims, demands, accounts, reckonings, which, he then had, or thereafter might or could have, by reason of any matter, cause, or thing, touching the suit, or the transfer by the firm of Fetherolf, Montgomery & Co. to any person, or at any time whatever, of a certain promissory note drawn by him to their order, and upon which the above suit is brought,” and then renewed seriatim the offers above mentioned; all which were rejected by the court, and exceptions noted.</p> <p>The defendant, thereupon, offered to prove by the same witness all the matters contained in his notice of special matter, except the following, to wit: — “ That he, the defendant, signed and delivered the note- on which suit is brought to Fetherolf, Montgomery & Co., of the city of Philadelphia, the payees named therein, as an accommodation note, for which the said defendant never received any consideration whatever.” * * * * “When it fell into the hands of plaintiff, who is a brother of Amos Fetherolf, one of the firm of Fetherolf, Montgomery & Co., without the consent or knowledge of Alexander Montgomery, one of the other members of the said firm. That the said note, therefore, at the time it fell into the hands of the plaintiff, .was overdue, and the passing of it was a fraud on those members of the firm who were not cognisant of the act at the time it was done. That on the evening of the maturity of the note the defendant called on Fetherolf, Montgomery & Co.j and demanded it, when he was told by Amos Fetherolf, one of the firm, that his defendant’s name was torn off.” To this offer the plaintiff by his counsel objected, the court sustained the objection, rejected the evidence, and sealed a bill of exceptions for defendant.</p> <p>There being no further evidence in the case, the jury, under the direction of the court, returned their verdict in favour of the plaintiff for the amount of the note and interest. Judgment having been entered on the verdict, the defendant sued out this writ, and assigned for error here the rejection of the evidence offered as above stated.</p>

This was an appeal by George P. Cope, from the decree of the Court of Common Pleas, on the report of the commissioner appointed to distribute proceeds of the sheriff’s sale of personal property, levied on under an execution against A. B. Schermerhorn.

<p>Certificate from the Nisi Prius.</p> <p>These were actions on the case, brought to January Term 1859, by Robert B. Kirkpatrick, and Sarah his wife, against Edwin Kirkpatrick, Mahlon Hutchinson, and Charles C. Culin; and to November Term 1859, by Robert B. Kirkpatrick against Edwin Kirkpatrick, Mahlon P. Hutchinson, Charles C. Culin, Alexander E. Kirkpatrick, Francis A. Kirkpatrick, and Jacob H. Lex.</p> <p>The former case was tried before Justice Thompson, the latter before Justice Read. As both cases grew out of the same transaction, and were disposed of at Nisi Prius in the same way, they were considered together by the court in banc.</p> <p>The material facts are as follows: — Some time in February 1858, Mrs. Kirkpatrick was arrested on a criminal warrant, charged with the crime of attempting to poison and murder the family of her husband’s brother, Edwin Kirkpatrick, detained in custody of the officers in the private office of the magistrate for nearly one day, towards the close of which she was released, on giving bail for her appearance to answer the charge. A bill of indictment was preferred against Robert B. Kirkpatrick, Sarah Kirkpatrick, Josiah G. Jones, and Elizabeth Yardley, alias Richards, containing thirteen counts, and embracing charges of conspiracies to libel, to murder, both with and without poison, with arsenic, and with white arsenic, and charged also overt acts of poisoning, of assaults, with intent to murder the entire family of Edwin Kirkpatrick, and each member thereof, in detail.</p> <p>The trial lasted from the 7th of July until the 9th of August 1858, when the verdict of the jury was rendered, acquitting Mrs. Yardley and Josiah G. Jones entirely, acquitting Mr. and Mrs. Kirkpatrick on the first eleven counts, and convicting them on the last two, one of which charged an assault on the person of Edwin Kirkpatrick, with intent to kill, and the other an assault on the person of Amanda, the wife of Edwin, with the like intent.</p> <p>A rule for a new trial was entered by the counsel for the defendant, who also, for reasons filed, moved in arrest of judgment.</p> <p>I. The reasons presented for a new trial were, that the learned judge who tried the case, erred,</p> <p>1. In admitting evidence as to the manner in which the prosecutor had obtained a bond from the defendant, and in permitting evidence to go to the jury as to the name of the counsel who had drawn the bond, and the consideration of said bond.</p> <p>2. In admitting evidence of alleged threats made by defendant two years prior to the supposed assault.</p> <p>3. In admitting evidence of an alleged statement by defendant in reference to Mrs. Landis.</p> <p>4. In permitting Wm. H. Kirkpatrick, an infant under seven years of age, to be sworn.</p> <p>5. In admitting the evidence of Drs. Hutchinson and Bridges, as to the alleged analysis of the pie which it was said was poisoned.</p> <p>6. In admitting evidence of alleged acts and declarations by Mrs. Kirkpatrick, after the consummation of the supposed conspiracy, and the commencement of the prosecution.</p> <p>7. In permitting the prosecutor to give to the jury, certain letters that were objected to on the trial.</p> <p>8. In refusing to receive the evidence of D. S. Soby, Esq.</p> <p>9. In permitting the prosecutor to introduce in rebuttal, evidence of supposed contradictions in the statements of Margaret Dunigan, which were wholly irrelevant to the issue.</p> <p>10. In charging the jury that the defendant, Mrs. Sarah Kirkpatrick, could be convicted separately on the last four counts. To which were added:</p> <p>The separation of the jury after the charge, and before agree ing on their verdict.</p> <p>That the verdict was clearly against the evidence.</p> <p>That the verdict was against the law; and</p> <p>That there was after-discovered evidence.</p> <p>The reasons in arrest of judgment were as follows: — ■</p> <p>1. The verdict is insensible, the jury having acquitted the defendants upon counts embracing the same charges as those upon which they have rendered a verdict of guilty.</p> <p>2. The conviction of Mrs. Sarah Kirkpatrick on the last two counts is irregular.</p> <p>8. The indictment is defective, uncertain, and insufficient to support any judgment thereon.</p> <p>On hearing, before a full bench of. the Court of Oyer and Terminer, judgment was entered in favour of the defendants on the 22d of January 1859, and they were discharged.</p> <p>This suit by Kirkpatrick and wife against Edwin Kirkpatrick, Hutchinson, and Culin, who, it was alleged, had acted with Edwin Kirkpatrick in carrying on the prosecution, and in certain matters which preceded it, who also were important witnesses on the trial of the indictment, constant in their attendance at court, and active in publishing the details of the case as the trial proceeded; was brought February 28th 1859. The declaration charged that the defendants, with the unlawful purpose of ruining the character of Mrs. Sarah Kirkpatrick, and depriving her of her liberty, had conspired to falsely accuse her of conspiracies of attempts to murder, and other aggravated charges, and, in pursuance thereof, had procured her to be arrested and imprisoned, and had falsely and maliciously, and without any reasonable or probable cause, and with full knowledge of her innocence, prosecuted her to a trial, which had resulted in her discharge.</p> <p>On the trial, after the plaintiff’s testimony was closed, Mr. Justice Thompson ordered a nonsuit to be entered. The plaintiff’s attorneys then obtained a rule to show cause why the non-suit should not be taken off. On hearing the argument, Thompson, J., delivered the following opinion, and discharged the rule:—</p> <p>“ There undoubtedly may be a termination of a prosecution, upon which an action for malicious prosecution may be sustained, without a verdict of acquittal; but dependent upon the stage in which it occurs; for instance, where the examining magistrate discharges without holding to bail or commitment, or where the bill is thrown out by the grand jury. In these instances, there is a termination of that particular prosecution. A new prosecution for the same offence would not necessarily be connected with, or a continuation of the prior one. The rule, however, is, in all cases, to aver and prove a termination of the prosecution, by an averment either of acquittal or that it is ended: 2 Saunders on PI. & Ev. 254.</p> <p>“In this case it was averred that the plaintiff, Mrs. Kirkpatrick, had been arrested and bound over; that a true bill had been found by the grand jury, on the charge ; (that she and others had conspired to attempt to kill by poison the prosecutor, and other members of his family;) that there was a trial by petit jury, a conviction of the plaintiffs, an arrest of judgment, and discharge. This was averred to be an acquittal and discharge of the plaintiff’s wife.</p> <p>“ It is certain that the averment was not sustained by the proof, so far as the acquittal was concerned, for the record showed the very opposite.</p> <p>“ Was the averment of ‘ discharged’ as proved by the record, a sufficient averment and proof of the termination of the prosecution, as the record shows ? I think not. It did not countervail the legal effect of the record of the conviction. In my opinion, nothing short of an acquittal will answer where- the prosecution has progressed to a trial hy a petit jury. This is the force of the principle in 1 Hilliard on Torts 494 et seq., for which many authorities are cited. A nol. pros, has been held insufficient in numerous cases: 6 Mod. 375; 2 Grey 124; 4 Cush. 217. Perhaps, however, this may rest upon a different principle ; on the point of the necessity for there being an acquittal. As to the conclusiveness of a conviction, see Parker v. Farley, 10 Cush. 379; Whitney v. Peckham, 15 Mass. 243; Griffis v. Sellers, 2 Dev. & Bat. 492; 2 Greenl. Ev. § 452, 457; see also Herman v. Brockerhoff, 8 Watts 240, in which it was held, per Gibson, C. J., that a conviction is conclusive of probable cause, citing Reynolds v. Kennedy, 1 Wills. 232; that it is so, even although reversed on appeal, and also to the same effect, Girtlon v. Johnson, 1 Term Rep. 565. This exactly accords with several of the authorities airea,dy cited. The case before us is stronger than either of these, for the conviction is neither reversed nor set aside; its consequences only were evaded by the arrest of judgment. This proves the accuracy of the authorities in 2 Term Rep. 235, which denies that the averment of a ‘ discharge’ is equivalent to an averment of acquittal, and hence insufficient, where there has been a trial to sustain the action for malicious prosecution. On these grounds alone, I am satisfied the nonsuit was right.</p> <p>“ But even if this were not so, the case, so far as it was presented by the plaintiffs, was entirely barren of two indispensable ingredients necessary to the maintenance of the action, to wit, the want of probable cause and malice. The oath of one of the defendants, as the foundation for the prosecution, and proof of the employment of counsel by him, and the attention at the trial, was proved; and then some evidence was given to show innocence on the part of the wife of the plaintiff; and here 'the plaintiffs rested their case. This was not enough, even if it were possible, under any circumstances, to recover against such a record as existed in the case. There should have been testimony to show the case of the prosecution, and that there was no reason or probable ground for it. This was not done. It was a material allegation by the plaintiffs that there was no probable cause for the prosecution, and that there was malice. We should have heard, in substance at least, what the case made was, so that we could determine how these facts were preliminary to considering the question of damages. There may be many cases in which the party charged is entirely innocent, and yet the prosecutor not liable to respond in damages on account of it. It must appear, somehow, that the prosecution was groundless, and so known, or ought to have been known to be, by the prosecutor. We commonly judge of this from the facts and circumstances of the prosecution itself, or the declarations of the prosecutor. Want of probable cause, and malice, were affirmative facts, which the plaintiffs were bound to prove; and this was not accomplished by the small amount of evidence going to establish the probable innocence of the plaintiff’s wife. More than that was needed, and its absence justified the nonsuit, if there had been no other reason for it.”</p> <p>On application of plaintiff, the case was certified to the court in banc, where the entering of the judgment of nonsuit by the judge at Nisi Prius was assigned for error.</p>

Mary Ann Coleman is a resident of Philadelphia, and has been living there as a widow for several years. A few days prior to the 5th of February 1858, the plaintiff, holding promissory notes to the amount of $2300 against George Moore, who was at that time solvent, threatened to bring an action against him on said notes, when Mary Ann Coleman, representing herself as a widow lady, induced the plaintiff to take her bond and mortgage for the sum of $2100 for said notes.

Stein, one of the associate judges of the Court of _ Common Pleas of Northampton county. To August Term 1858, No. 84, an action on the case was brought by Thomas Smull, Thomas L. Smull, John Burke, and Jonathan Thorne, partners, trading under the firm and name of Thomas Smull & Sons, against Samuel J. Berger.

This was an action of assumpsit, brought by Philip DIThomas against George W. Snyder. The declaration was on a bill of lading for the freight by the owner of the vessel against the shipper of the cargo.

<p>Appeals from the Orphans’ Court of Chester county.</p> <p>These were appeals by William Y. Pettit, administrator of the estate of Sarah Jeffries, deceased, and by Samuel W. Lapsley, and Margaret M. his wife, who was a daughter of Mrs. Jeffries, from the definitive decree of the Orphans’ Court, distributing the balance in the hands of said administrator.</p> <p>The case was this: — Sarah Jeffries, widow of Samuel C. Jeffries, deceased, died in November 1850, intestate, leaving two children, viz., Margaret, now Mrs. Lapsley, and Samuel, both of whom were minors. Letters of administration were granted to William Y. Pettit, whose account, filed May 14th 1852, and confirmed in September following, exhibited a balance in his hands, belonging to the estate, of $6116.64.</p> <p>Margaret never had a guardian; but, on the death of her mother, was taken into the family of Mr. Pettit, where she lived as his daughter, until her marriage with Mr. Lapsley. She was fashionably educated, and supported in the family of the accountant, until July 1853, when she went to reside with another uncle, Mr. John D. Pettit, in West Chester, where she remained until. March 1855. Up to this time her expenses had not absorbed the interest in her share in her mother’s estate. About this time accountant’s wife died, when Margaret was taken by him to Philadelphia, and placed in charge of his house and family. She was then between eighteen and nineteen years of age. She remained here until April 8th 1858, when she was married to Mr. Lapsley, having attained her full age on the 21st of September 1857.</p> <p>On the first of October 1858, Mr. Pettit paid her $410.15, which he alleged was all that was due to her out of her share of the moneys in his hands, the remainder having been expended by him for her use.</p> <p>On the 9th of November 1858, on the petition of Mr. and Mrs. Lapsley, the Orphans’ Court of Chester county appointed an auditor to distribute the balance of $6111.64, in the hands of the administrator, as per his account. Before the auditor, Mr. and Mrs. Lapsley claimed the half of said balance, viz., $3058.32, and interest from the date of the account, less the $410.15, paid on the first of October 1858, as above stated.</p> <p>This the accountant resisted, and presented a statement (with proper vouchers), showing the transactions between him and Mrs. Lapsley since the filing of his administration account. In this statement, he charged himself with her moiety of the balance in his hands as administrator of Mrs. Jeffries, deducting from it $225.81, for moneys expended for her between the date of her mother’s death and the filing of the account in 1852. On this balance he charged himself with interest, $147.60, to April 1st 1843, and took credit on the other side of his account for expenditures up to that date, amounting to $253.85. The excess of expenditures over the interest he subtracted from the principal, beginning each new year with the remainder as principal, continuing thus from year to year, until October 1st 1858, when the account closed with the balance of $410.16, which was paid to her on that day. The expenditures for the several years were as follows: — For 1852, $253.85; for 1853, $164.20 ; for 1854, $176.36; for 1855, $137; for 1856, $496; for 1857, $616.23; and for 1858, $1442. The items of which these sums were made up, were all set out in the statement. In addition to this, letters of Mrs. Lapsley, one written about the time she came of age, and another, which, from the date of a bill therein enclosed, must have been written some time afterwards, were offered in evidence by Mr. Pettit, to show that she authorized or ratified these expenditures. The auditor took the ground that Mr. Pettit was a trustee for Mrs. Lapsley, and that, therefore, he could only be allowed the interest of her share on account of her expenses, not being at liberty, without the express sanction of the court, to break in upon the principal. That her annual income of $183 was sufficient for her support for many years; and that, as after her annual expenses exceeded that amount, the statement showed it was mostly for clothing, no trustee could be justified who permitted such an expenditure. He therefore decided that the whole sum of $3058.32 was due to Mrs. Lapsley, less the $410.15 which had been paid to her. To this report both parties filed exceptions: Mr. and Mrs. Lapsley, on the ground that the auditor allowed the accountant the interest of the money in his hands towards the maintenance and support of Margaret M. Lapsley; because he did not report in favour of Margaret M. Lapsley one-half the balance appearing in the hands of administrator as per his account, with interest from the date of the account to the date of the report, less the sum of |410.15, with interest; and because, also, the auditor did not charge the whole expense of the audit upon the administrator. Mr. Pettit excepted to the report, because it awarded any sum to Mrs. Lapsley, and because he had been charged with half the expenses of the audit.</p> <p>The Orphans’ Court, on argument, dismissed the exceptions, and confirmed the report, from which decree both parties appealed to this court, assigning for error the decree of the court below.</p>

This was an appeal by Isaac L. Post, Leonard Searle, M. S. Wilson, and B. S. Bently, from the decree of the Common Pleas, in the matter of the distribution of the moneys arising from the sale of the real estate of E. A. Ward. E. A. Ward, with E. M. Williams, held by contract certain lands in Oakland and Harmony townships, in said county, the legal title to which was in 0. L. Ward. The contract price to be paid was $5000.

This was an action of ejectment, brought May 12th 1858, by the Plymouth Railroad Company against Stephen Colwell and Susanna Jacoby, for a lot of ground in the borough of Conshohocken (formerly Plymouth township), in the county of Montgomery, “ containing about two acres of land, or thereabouts.” The ease was tried on the issue formed by the usual plea of “not guilty,” and resulted in a verdict and judgment for defendants ; whereupon the plaintiff sued out this writ.

In Equity. On the 1st of July 1858, Samuel Welsh, John Welsh, and William Welsh, trading as S. & W. Welsh, filed a bill in equity against Joseph Cabot, liquidator of the firm of Bevan & Humphreys ; John M. Odenheimer, and Samuel 0. Cook, trading as Odenheimer & Cook; George N. Diehl and John H. Diehl, trading as Diehl & Co.; and Thomas Rich, executor of James Christie Rogers, deceased.

<p> Liability of Heirs for Debt of Ancestor. </p> <p>On the trial of a scire facias guare ex. non, to revive a judgment, against the widow and heirs of a decedent, the court refused to allow the defendants to amend and plead “ That they took nothing by descent.” Held, that such refusal was not error : for the judgment against the heirs would bind only the lands of their ancestor, in their hands, and could not be enforced against them personally.</p>

This was a feigned issue directed by the court below to ascertain certain facts connected with the distribution of the proceeds of the sheriff’s sale of the interest of Johanan Cockhill in certain . real estate in Schuylkill county. The estate was sold on a levari facias, at the suit of E. Tyler & Co., who also became the purchasers, and claim to appropriate the purchase-money to their lien.

This was a proceeding in equity, by George W. Edwards against James G. Edwards, George G. Presbury, James B. Billings, and Thomas Edwards, Jr. The bill was filed August 1857, and a subpoena issued against the defendants, returnable the first Monday of October 1857. The real parties in interest were George W. Edwards and James G. Edwards; Thomas Edwards, Jr., being a mortgagee of James, and Presbury & Billings tenants merely of the property in dispute.

Error, to the Common Pleas of Chester county. This was an action of assumpsit, entered February 17th 1859, by George F. Worrall against Levi A. Gheen, in which the following case was stated for the opinion of the Court of Common Pleas, in the nature of a special verdict. “ Charles M. Layman filled up a printed blank note in the following manner, and in the following terms. The annexed is á correct copy as it was executed by him: • $ 50.

This was an appeal by John C. Backus, from the decree of the court below, distributing the proceeds of the sale of the personal property of John C. Backus & Co. Murphy, Benedict & Co. held a judgment by confession against George W. Sartwell, C. K. Sartwell, andR. Sartwell, doing business as C. K. Sartwell & Bro., dated July 28th 1856, on which they sued out an execution March ls't 1860.

On the 7th of January 1861, Thomas A. Scott, vice-president of the Pennsylvania Railroad Company, presented a petition to the Supreme Court in banc at Philadelphia, setting forth, That two certain causes have depended in court, wherein the Pennsylvania Railroad Company is plaintiff in error, and the Commonwealth of Pennsylvania is defendant in error, both of which were founded upon writs of error addressed to the Court of Common Pleas of Dauphin county; the one writ being…

<p>Rights of Mechanics’Lien Creditor as against Mortgagee. — Requisites on Liens for Work, &c., under Special Contract.</p> <p>Where a building was erected by a mechanic under a special contract, and a lien was regularly filed by him for the balance due upon the contract, within six months from the completion of the building, he is entitled, under the Act 16th April 1845, to receive out of the proceeds of the property, the amount of his lien, in preference to the holder of a mortgage given after the commencement of the building, though the lien was without date as to when the work was done and materials furnished, and only averred that it was “ within six months last past.”</p>

This was an action of ejectment, brought July 18th 1860, by David Mann against Sarah Sipes, for a tract of land in Licking Creek township, containing about 70 acres. Abner Sipes, the husband of defendant, died seised of this land — his widow elected to take it under the provisions of the Act of Assembly of April 14th 1851.

This was an appeal by Nancy Roberts from the decree of the Orphans’ Court, distributing the balance in the hands of George A. Smith, administrator of Henry Roberts, deceased. Henry Roberts, the grandfather of the intestate, devised a tract of land in Fulton county to his son Jacob, charged with sundry legacies to other children of the testator. Jacob accepted the devise, took possession of the land, and paid part of the said legacies.

This was an action of assumpsit, brought July 26th 1860, in the court below, by Thomas Pritchett, Samuel Baugh, William C. Pritchett, and James C. Pritchett, partners, doing business as Pritchett, Baugh & Co., against Andrew Wilson.

By the will of James Noble, deceased, his real estate was devised to his three sons, John, Armstrong, and Robert, subject to the payment of a legacy to his son James, with regard to which the following provision was made: “I desire that it shall be secured on loan or stock, and the interest thereof appropriated to his necessities and those of his wife and family during his life, and, after his death, the same is bequeathed to his children.” Under this provision, the interest…

This was an action of trespass vi et armis, brought August 20th 1860, by Joseph Critchfield against George Humbert. The defendant was the owner of one-sixth of a tract of 300 acres of land, in Milford township, Somerset county, but was in possession of the whole tract on the 12th of February 1858, on which day the plaintiff purchased the remaining five-sixths from the heirs of Reynold Keen, who were the owners thereof.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was a scire facias to April Term 1860, No. 98, to revive a judgment entered to January Term 1855, No. 129, in the name of John Fegaly, for the use of E. Shober, against John Bobb, with notice to Michael Myer, terre-tenant, to which Myer appeared and pleaded nul tiel record, payment, and payment with leave. The point in the case was whether a judgment entered against John Bobb was a lien on certain real estate conveyed to Myer by John Bubb and wife, the variance being a single vowel in the name of the defendant. The following record evidence and other facts were stated for the opinion of the court.</p> <p>Continuance docket entries. John Fegaly v. John Bobb (Amwake for Fegaly, no appearance for Bobb). January Term 1855, No. 129. Summons sur assumpsit January 15th, served. Narr. filed January 25th 1855. January 27th, passed over by direction of Mr. Amwake. March 22d 1855, on motion of Mr. Amwake, judgment in open court for $210. June 5th 1857, judgment assigned to E. Shober.</p> <p>John Fegaly, for the use of E. Shober, v. John Bobb (Amwake for Fegaly, no appearance for Bobb). November Term 1859, No. 52. Sci. fa. to revive the judgment of January Term 1855, No. 129. Issued April 6tli 1859. February 20th 1860, discontinued by E. Shober.</p> <p>John Fegaly, for the use of E. Shober, v. John Bobb, with notice to M. Myer, terre-tenant (Amwalce for Fegaly, Lightner for Myer). April Term 1860, No. 98. Sci. fa. to revive the judgment of January Term 1855, No. 129. Issued February 20th 1860. Served March 3d. April 27th 1860, defendant Myer pleads nul tiel record, payment, and payment with leave.</p> <p>Entries in judgment docket. John Bubb defendant; Charles Boughter plaintiff; entered April 17th 1854; debt, $800; term, January Term 1856; No. 1069. (Other judgments against other persons intervening.) John Bobb, John Fegaly — March 22d 1855, $210, January Term 1855, 129. (Other judgments intervening.) John Bubb, C. J. Plitt, November 14th 1856, $210, August 1856, 466. These two judgments docketed against John Bubb in favour of Boughter & Plitt, respectively, were entered by virtue of judgment bonds with warrant of attorney. • Michael Myer, terre-tenant, holds the property sought to be charged with the Fegaly judgment under the following deeds :</p> <p>Lewis Hartman and wife to Samuel Theodore Hensel. Deed dated March 31st 1846, for a house and lot of ground in the city of Lancaster. Consideration-money $625, subject to a ground-rent of $1.29. Samuel Theodore Hensel and wife to John Bubb. Deed poll, March 23d 1853, for same property; consideration-money, $800.</p> <p>John Bubb and wife to Michael Myer. Deed March 5th 1857. Recorded in Book T. Vol. 8, p. 516. Conveying same property. Consideration-money, $1000.</p> <p>This purchase-money was applied to the discharge of the two judgments docketed as above, in favour of Charles Boughter and C. J. Plitt, respectively, against John Bubb,</p> <p>It is admitted that the name of Myer’s grantor is Bubb, and that he always so spelled and signed it.</p> <p>It is also admitted that-the writ issued in the suit of Fegaly v. Bobb, of January Term 1855, No. 129, was served upon John Bubb, afterwards grantor of Michael Myer.</p> <p>If upon the foregoing records and statement of facts the court should be of opinion that the Fegaly judgment binds the property in the hands of the terre-tenant, then judgment to be entered on the sci.fa. to April Term 1860 for $210, with interest and costs. If otherwise, judgment for defendant with costs.</p> <p>Either party to take a writ of error without bail or affidavit.</p> <p>The case was argued in the court below, March 20th 1861, and on April 13th 1861, the court below (Hates, P. J.) read and filed the following opinion, directing the entry of judgment in favour of the plaintiff for $210, with interest and costs, according to the terms of the case stated.</p> <p>After stating the facts of the case, the learned Judge proceeded :</p> <p>“ The names of men (says Bacon’s Abridgment) are only sound for distinction sake, though perhaps they originally imported something more, as some natural qualities, features, or relations ; but now there is no other use of them but to mark out the families or individuals we speak of, and to difference them from others. Therefore it has been held that two names by original derivation the same, and taken promiscuously to he the same in common use, though they differ in sound, there is'no variance; as, Piers Griffith and Peter Griffith, so Saunders and Alexander, Jane and Joan, Jean and John: Cro. Jac. 205; 2 Roll. Abr. 135. .</p> <p>“All the authorities, however, dwell upon the importance of preserving the Christian name; and in Cro. Jac. 558, 640, and 5 Co. 43, and Oro. Eliz. 57, 222, if the Christian name be wholly mistaken, this is regularly fatal to all legal instruments, as well declarations and pleadings as grants and obligations — and the reason assigned is, because it is repugnant to the rules of the Christian religion, that there should be a Christian without a name of baptism, or that such person should have two Christian names, since our Church allows of no rebaptizing, &e.</p> <p>“ The mistake of the surname does not vitiate, because there is no repugnancy that a person should have different surnames: 3 Hen. 6, 25, 2; Roll. Abr. And so it is said, 2 Hawk. P. C. C. 25, p. 68, that a person cannot take advantage of a mistaken surname in an indictment, either by plea in abatement or otherwise, notwithstanding such surname has no affinity with his true one, and he was never known by it: 4 Bae. Ab. Misnomer (B) 1.</p> <p>“ In the York Bank’s Appeal, 12 Casey 458, the Christian names of the defendants were altogether omitted in the judgment docket; and the Supreme Court holding that the Christian names of the partners of the firm were essential to the designation of the individuals, the omission of them in the judgment docket destroyed all the effect of the entry therein — which is simply to give notice to purchasers, subsequent encumbrancers, and all others in interest. So in Ridgway, Budd & Co.’s Appeal, 3 Harris 181.</p> <p>“ The most liberal case, in dealing with variances of the Christian name, is Jones’s Case, in 3 Casey 336, where a judgment was entered in the appearance and lien docket against A. Jones, whose name was Abel Jones. It was proved that he was well known by his abbreviated designation, that he uniformly wrote his signature in that way, and that there was no other person in the county for whose name it would answer. It was held that the lien was well entered, and was entitled to preference over one subsequently entered against Abel Jones.</p> <p>“ The auditor (said Woodward, J.) seemed to think it would be proving a lien by parol that Abel or A. Jones meant the same person. Not at all. The lien comes of the record. The evidence only answers the objection, that the record did not contain more than was necessary to individuate the defendant. If, in common use, the names be the same, the person cannot be misnamed if either be used.</p> <p>“ In the present case the defendant’s surname is German, and is pronounced according to the German usage in calling such names in this county. It is not sounded Bob — as Bob is called and pronounced in English — nor Bop, as rhyming with Pop. It is called Bupp. Such is the customary pronunciation when the o is followed by any of the abrupt, atonic, or subtonic consonants b, p, d, t, Ic, &c., and b at the end of a word, is in German usually pronounced p, and d, t. In common acceptation, and according to common usage, Bobb and Bubb would bear the same sound, both would be pronounced Bupp. The name of Kolp, everybody knows, is pronounced Kulp, Poltz, Fultz, Kopp, Hupp [Cup), and so on. In the German-English Dictionary, published in Lancaster, 1812, by the Rev. Dr. II. Muhlenberg and B. J. Schipper, it is said in their ‘Rudiments of the German Language,’ that o, when long, is sounded like o in no, as krone ; when short, it is more like u in but, as woehe. The only difference in the name of the defendant, as written in these judgment entries, is, that in two of them it is written John Bubb, and in the other it is written John Bobb. There is no rule for spelling surnames. Those to whom they belong are often careless in this particular.</p> <p>“ Members of the same family sometimes spell their names differently, preserving the sound. The numerous families of the Herrs spell their names differently, though in their origin literally the same — some writing it Herr — others Hare. So, the families named Bear, in this county, write their names variously Bare, Baer, Bair, and Bear. It is manifest, therefore, that identity of sound is a surer designation of the name of a person than orthography; and hence it has often been decided that the misspelling of a name is not a misnomer, if it is still idem sonans: 2 Str. 889 ; 2 Taunt. 401; 2 Caines 362; 3 Id. 219. In pleadings, when a name which it is material to state is wrongly spelled, yet if it be idem sonans with that proved, it is sufficient; as Se-grave for Seagrave, in 3 Str. 889; Keen for Keene, in Thach. Orim. Cases 67; Deadema for Diadema, 2 Iredell 346 ; Hutson for Hudson, 7 Miss. R. 142; Coonrad for Conrad, 8 Id. 291.</p> <p>“In Denner v. Shacroft, Cro. Eliz. 258; action sur trover; in the distringas juratorum, the defendant was named Shacraft, but in the venire facias, and all the other proceedings, he was truly named; and this misnomer was alleged in arrest of judgment. But by Wray, J., the difference here is little, and in some countries a is sounded for o, and so is not material; and it was awarded to be amended, and the plaintiff had judgment.</p> <p>“ In the York Bank’s Appeal, it was declared that the effect of the judgment docket was simply to give notice to purchasers and others, by publishing the names of the defendants in the judgments, the dates in the order of time, number, term, and amount. If these particulars are complied with, the purchasers of the property bound by the judgment having notice must abide by the consequence. Were they complied with in the case before us ? On the assumption that the two names, as differing in their orthography by using o in one and u in the other, sound, alike, we are of opinion that, according to numerous authorities, as well as the reason of the thing, the requisition of the Act of 1827, in regard to the judgment docket, was complied with substantially in this case, and that the notice was sufficient. The authorities have been referred to. Suppose several judgments, entered at different times against the same individual — Jabez Bare, for example — in which his name should be variously spelled Jabez Bare, Jabez Baer, and Jabez Bair, could it be contended, with any show of reason, that all these entries would not be notice of the liens to all concerned ? Unquestionably the identity of sound would determine, because it is clear that whilst sounding the same, the slight variation of a vowel in spelling could not mislead the least sagacious inquirer. The criterion is, that the notice to be sufficient to advise a person of ordinary intelligence, and no one can deny that two names, sounding, exactly alike, will primarily be taken as designating the same person, by any one of common understanding. If A. Jones was good and sufficient notice of a judgment and lien against Abel Jones, to affect a purchaser, it would be passing strange that a judgment entered against John Bobb should not be notice to affect the terre-tenant of John Bubb, when the names so slightly variant in the spelling are precisely the same in sound. Were such niceties to defeat the lien of honest debts, we must come to regard the omission of a dot over the i, or the cross of a t, as fatal, according to the old strictness which once disgraced the science of special pleading. If, in writing the name of a defendant, — Bitner, for instance, — the dot over the i was left out, or the t was not crossed, the creditor might lose his debt, though everybody that examined the record would be perfectly notified who was the defendant in the judgment. All this, in our opinion, would be extremely unreasonable; and, on the whole, we are satisfied that the Eegaly judgment binds the property in the hands of the terre-tenant, Michael Myer.”</p> <p>The defendant, thereupon, sued out this writ, and assigned for error the entry of judgment, as above stated.</p>

<p>Validity of Stoclc Subscriptions, where Charter has expired, by Limitation. — Effect of reviving Act of Assembly, on Contract of Stockholders.</p> <p>An Act of Assembly for the incorporation of a plant-road company, provided that it should be null and void, unless the construction of the road was commenced within three years from that date. The construction was not commenced within the time specified, but a subsequent act was obtained in 1857, which extended the time, and “legalized and made valid” the original subscriptions. In an action by the company against one of the original subscribers for his subscription, it rvas held, that as the act of incorporation had become null and void, by the expiration of the time limited for the commencement of the road, the original subscriptions had also become void, and that no action could be maintained thereon. A contract, which has become void by force of its inherent conditions, cannot be reinstated by an Act of Assembly.</p>

<p>Error to tbe Common Pleas of Lancaster county.</p> <p>This was an action on the case for defamation, brought March 19th 1860, by Abraham Smith against Frederick Smith. The slanderous words laid in the plaintiff’s declaration were, “Yon stole tobacco, and I can prove it by two witnesses.” The plea was, Not guilty.</p> <p>On the trial, after the plaintiff had closed his case, the defendant offered to prove by Levi Shaffer, that he was employed by Abraham Smith, who was farming his brother Jacob’s tobacco— that he divided the tobacco, and in taking it down from the rafter where it hung, a portion of Jacob’s tobacco, by Abraham’s direction, was taken into the cellar and put in among Abraham’s tobacco — that the witness remarked, it was a shame that Abraham would abuse his brother in this way in the division of the tobacco, that these facts were communicated by witness to defendant, Frederick Smith, which offer was made not for the purpose of proving that the plaintiff was guilty of larceny, but in mitigation of damages.</p> <p>This was objected to by plaintiff and rejected by the court, under exception.</p> <p>The defendant then, by leave of the court, added the plea of justification, after which the witness was allowed to proceed.</p> <p>There was a verdict and judgment in favour of plaintiff, whereupon the defendant sued out this writ, and assigned as cause for reversal here, that the court below erred in rejecting the testimony of Levi Shaffer, when offered under the pica of not guilty.</p>

<p>Appeal from the Orphans’ Court of Somerset county.</p> <p>This was an appeal by Daniel Weyancl from the decree of the Orphans’ Court in certain proceedings had therein, in relation to the rescission of a decree for the specific performance of a contract for the exchange of real estate between John Hay and Michael Hay, deceased.</p> <p>The history of this case, and all the material facts connected with it, are fully and clearly set forth in the opinion of this court, which was delivered, July 24th 1861, by</p>

<p>Error to tbe Common Pleas of Schuylkill county.</p> <p>This was an action of covenant, brought August 18th 1857, by Alexander P. Tutton against Isaac Addams, for an alleged breach of the covenant contained in articles of copartnership between them.</p> <p>Isaac Addams, the owner of a tract of timber-land in Union county, on the 10th of April 1855, entered into articles of co-partnership, under seal, with Alexander P. Tutton, for the term of, five years, under which Addams was to furnish seventeen-twenty-fourths of all the moneys to be invested in stock, wagons, trucks, chains, &c., necessary for carrying on the business of cutting and sawing lumber for the market, and Tutton seven-twenty-fourths — the expenses and losses incurred, and profits made in the business, to be borne and divided in the same proportion.</p> <p>Addams was to attend to sales and collections, while Tutton was to superintend the business on the land. Neither party was to borrow money for the use of the firm, or incur joint liability, by endorsement or otherwise, without the written consent of the other. At the expiration of five years, Tutton was to pay Addams $300. The articles contained a variety of minor stipulations, which are not material, except that by one of them, all previous agreements between the parties were declared null and void. The allegation of the plaintiff was that he was injured by the acts of the defendant, by which the partnership was dissolved, and by other acts of his in violation thereof.</p> <p>The declaration was in covenant, and set forth the articles of copartnership ; and averred, as breaches thereof, the refusal by Addams to make sale of the timber, and his forbidding the plaintiff to make sale thereof; the publication by him, in one of the newspapers of the county, that the partnership had been dissolved ; his application to the Common Pleas for a dissolution, and the appointment of a receiver; his bringing ejectment for the land held and occupied by the plaintiff under the agreement; his suing out an estrepement, by which plaintiff was ¿«‘evented from cutting timber on the land; the removal by defendant of part of the machinery used by the firm; his dissolving the partnership, and injuring the credit of the firm ; advising employees of the firm not to work, under the threat that if they did they would not be paid; and also for breach of the articles of co-partnership.</p> <p>To this declaration the defendant pleaded “ covenants performed, set-off, with leave to give the special matter in evidence.”</p> <p>On the trial, plaintiff offered to prove that, at the time of entering into the articles of agreement, he held one-half of a tract of land by purchase from Addams, of which he was in possession, in pursuance of an agreement between them for the purchase of the same; that Addams confessed that he was unable to make him a title in pursuance of the agreement; that Tutton had been at great expense and loss in abandoning his business in Berks county, and moving his family on the land, claiming damages for the non-performance of the agreement to the amount of $1500 ; that Tutton agreed to relinquish this claim for damages in consideration of the articles of copartnership, given in evidence ; and that this relinquishment was part of the consideration which moved Addams and Tutton to enter into the articles of copartnership.</p> <p>The defendant objected to the whole evidence on the ground of irrelevancy, and because it did not tend to show any alleged breach of the covenants, as set forth in the declaration; there being, in fact, no alleged breach contained in the declaration, except for refusal to sell lumber and make collections.</p> <p>The court overruled the objection, to which defendant’s counsel excepted, which was the first error assigned.</p> <p>Thereupon, on leave given, the plaintiff amended his declaration, by adding the words, “ contrary to and in violation of the covenants to be performed by said Addams in said articles of agreement contained,” to the several alleged breaches laid in the declaration. The defendant then demurred to the declaration as amended, averring that ten of the assignments of breaches were informal and insufficient; whereupon the ¿daintiff, before joinder in demurrer, by leave of the court, amended his narr. by specifying the time and place when and where the alleged breaches occurred. After the joinder in demurrer, the ¿daintiff withdrew it, and permitted an amendment to the first assignment of breaches, by inserting the quantity of lumber which the defendant had refused to sell. The second and tenth demurrers were overruled; the eighth and ninth were withdrawn by defendant; the others were sustained by the court, and amendments allowed accordingly; whereupon there was judgment that defendant should plead.</p> <p>The defendant then filed a special plea, in which he averred that, previous to the bringing of this action of covenant, he had brought an action of account render against the plaintiff, to procure and enforce a settlement of their partnership accounts; that issue had been joined therein, under the pleas of ne unqueas receiver and plene computavit, upon which, by consent of parties, judgment quod computent had been entered, averring that under this form of action, all matters between them, arising out of their partnership, could be fully tried, and that therefore the plaintiff ought not further, &c.; and on the same day withdrew his pleas of covenants performed, &c. Issue was then joined on this special plea, after which, by leave of the court, the defendant renewed his pleas of covenants performed, &c.</p> <p>The defendant then, to maintain the issue -on his part, offered in evidence the record of an action of account render to September Term 1857, and the testimony of witnesses to show that the subject of the suit was the partnership transactions arising under the agreement of copartnership on which this suit is founded. The court refused to interrupt the plaintiff’s evidence to permit the defendant to give evidence under his special plea, and directed the plaintiff to proceed with his evidence to prove the breaches alleged in his declaration, to which decision defendant’s counsel excepted.</p> <p>The case then proceeded, and, after some other evidence, the plaintiff offered to prove that the defendant, when upon the land, and during the continuance of the partnership, refused to pay the hands employed by the firm, at the same time declaring that he had the money with him, and telling them that they had better stop working, and go somewhere else and work where they could get paid. This was objected to by defendant, on the ground that it related to misconduct of the defendant, which is not in violation of any covenant in the articles of copartnership given in evidence, but which is alone a subject of settlement in an action of account render or proceedings by bill in equity to account, and because also there is no assignment of any breach of the articles of copartnership, in the declaration with such certainty as advised the defendant of any specific complaint to which such evidence can relate. But the court below overruled the objections and admitted the evidence, which was the subject of the second assignment of error.</p> <p>The plaintiff having closed his case, the defendant offered, inter alia, to prove by Francis P. Dewees, Esq., that he brought the action of account render in evidence, as above stated, as attorney for Addams, against Tutton, and has had the care and management of the suit for the plaintiff; that it was brought to obtain a settlement of all the partnership dealings of the parties under the articles of agreement on which this suit is founded, and not for any other partnership account. This was objected to by plaintiff, because the record cannot be altered by parol evidence showing what an attorney intended to bring a suit for — that the record was alone evidence of the facts therein contained, and must speak for itself; that it shows a suit against Tutton as bailiff and receiver of partnership-money from April 10th 1855 to February 16th 1857, and that there is no other cause set forth on the record. The court sustained the objection and rejected the evidence, which was the subject of the third assignment of error.</p> <p>The defendant submitted several points, on which the instruction of the court was requested; among which were the following:</p> <p>1. The agreement shows that the partnership was merely for the purpose of “ cutting and sawing timber” on Addams’ land; that as Addams owned all the timber and land, all the firm was entitled to was the proceeds of the sale of the timber, after allowing Addams a fair compensation for the timber on the land.</p> <p>2. There can be no recovery for any alleged loss of credit of the firm, because by the express terms of the articles of copartnership, neither joarty had the right to borrow money for the use of the firm, or incur any joint liability-by endorsement, security, or otherwise, without the written consent of the other.</p> <p>3. There are $300 to be paid Addams under the agreement, which are to be computed against any alleged damages sustained by Tutton. And a verdict should be rendered in favour of defendant for the amoiint, unless reduced by estimated damages.</p> <p>7. That the plaintiff cannot recover damages in this suit for the several alleged breaches of the articles of copartnership declared upon, as they are severally the subject of account and settlement in the action of account render.</p> <p>The court below charged, that the terms of the articles expressed the contract of the partners clearly, and were not to be construed so as to include matters not provided for by it, and that, in estimating the damages, they must be governed by the evidence, as there was no other measure — that as, by the articles of partnership, Tutton was to give his time and attention to cutting and preparing the timber, the presumption was that this was a fair set-off against the value of the timber, and therefore the defendant’s first point was negatived.</p> <p>In answer to the second point, the court said, if the misconduct of the defendant impaired and injured the credit of the firm, so as to restrict, impede, or destroy its business, the plaintiff may recover any damage done to him thereby.</p> <p>The third point was answered by saying the defendant would be entitled to a proportionate part of the $300 in the ratio that the timber sawed bears to the timber still standing, provided the jury believed that the defendant did not violate his covenants in the articles of copartnership, and was justified in dissolving the firm.</p> <p>The seventh point was negatived by the court under these instructions. There was a verdict in favour of the plaintiff for $2500. This was followed by a motion for a new trial, which was ordered, unless the plaintiff would remit $1000 from the amount of the verdict. The plaintiff then filed a remittitur for $1000, whereupon the rule for a new trial was discharged, and judgment entered in favour of plaintiff for $1500. The case was then removed by writ of error, into this court, where the admission and rejection of the evidence, and the instruction of the court below, as above stated, were assigned for error.</p>

On tbe 7th of October 1859, there was entered on the records of the court below to August Term 1859, No. 436, a judgment for $10,000, on a bond with a warrant of attorney, executed by David Long, Sr., in favour of B. M. Stauffer, in the penalty of $10,000, conditioned for the payment of $5000, with legal interest, on the next succeeding first day of February.

<p>Appeal from the Orphans’ Court of Yorlc county.</p> <p>This was an appeal by Catharine Kline, widow of John Kline, deceased, from the decree of the court below, dismissing proceedings which had been commenced by her to vacate the sale of certain real estate by the administrator of her husband, which had been made by order of the court, for the payment of the debts of the deceased.</p> <p>The case was this: John Kline died, seised of certain real estate in York county, but without leaving sufficient personal property for the payment of his debts. Soon after his death, Abraham Fleming, to whom letters of administration had been granted, applied in the usual way for an order of court to sell this real estate for the payment of the debts of the deceased. The order was granted, and the land sold on the 15th of August 1859, to Michael Lambert, which sale was in due time confirmed by the court. Before the deed was delivered, Mrs. Kline presented her petition to the Orphans’ Court, setting forth that her father died about five years ago, from whose estate she had received $960, which she gave to her husband to invest for her in real estate in her name, which he agreed to do. That about three years ago, a contract was made with Lewis Kintzfor the purchase of the land in question, to be paid for with her money, the deed to be made to her. That a deed in her name was prepared, but that another deed in the name of her husband was drawn and executed without her knowledge, which fact was not known to her until after his death. That at the time of this conveyance, her money was paid to Kintz, and the balance of the purchase-money secured to him by judgment executed by her husband, Avho at the same time executed a mortgage on the property to one George Beelman. That she claimed the land at least to the extent to which her money had been applied to the purchase; but that the same had been sold by order of the Orphans’ Court, for the payment of the debts of deceased-husband, which sale was confirmed; that no deed had been given, nor purchase-money paid, nor possession taken by the purchaser, &c.: and praying for a citation to the administrator, and the purchaser, and others interested, requiring them to answer the petition, and show cause why the confirmation of the sale should not be opened and the sale vacated, with such other relief, &c.</p> <p>Citations thereupon were awarded to Fleming, Lambert, and Beelman, as prayed for.</p> <p>The answer of Abraham Fleming, the administrator, admitted the purchase by Kline of the land from Kintz; that the deed was made to Kline alone; that the respondent, as administrator, had sold it to Lambert, under an order of court to pay debts, the purchase-money to be paid on the 1st of April following; that the sale had been confirmed; and that no deed had been yet made, nor possession taken. But he denied the other facts alleged, and that the petitioner was entitled to any relief.</p> <p>The answer of Michael Lambert admitted the purchase by him on the 13th of August 1859, on the terms before mentioned, and alleged, among others, certain terms of sale not prescribed in the order, with which he had complied; that he had done some work on the premises, and had paid some of the purchase-money. He alleged ignorance of the other matters stated in the petition, and asked to have complainant’s petition dismissed.</p> <p>The answer of George Beelman stated, that after the deed was executed to Kline, a mortgage of the premises was executed by Kline to him for $400, borrowed by Kline, which mortgage was duly recorded; and that he knew of no secret trust or equity in favour of the complainant, nor of the other matters stated in the petition. A petition was filed at the same time with these answers, by Jacob Stouffer, setting forth that he had been the owner of the land in dispute; that he had sold it to Lewis Kintz, and took a judgment for part of the purchase-money; that Kintz and wife afterward sold to Kline ; that a judgment-bond was taken from Kline by Kintz for part of the purchase-money; that Kintz assigned this judgment-bond to Stouffer, who entered it on record, and still held it; that the widow of Kline had filed her petition as before stated, but he denied the facts alleged by her, and asked leave to come in and defend.</p> <p>General replications were put in to the answers. The case was heard by the court upon depositions taken.</p> <p>The depositions established the fact that in 1857, Mrs. Kline had received between nine hundred and one thousand dollars frpm her father’s estate, in two payments, as also a tract of land valued at $800 ; and that on both occasions she had handed the money over to her husband, requesting him to “ take care of it for her.” That an agreement had been made in 1856, between Kline and wife and Kintz, for the purchase of the land in controversy, on account of which Kline paid $20, and took the agreement home for his wife’s signature. That, at the request of Kintz, a deed was prepared for Mrs. Kline, which was executed. That, on the day when the deed was executed, Beelman appeared, and, on examining it, refused to lend money to Kline on mortgage, unless the deed for the land was in his name, or unless Mrs. Kline would join with her husband in executing the bond and mortgage to him. Kline remarked that his wife would sign no judgment or mortgage, and requested the scrivener to erase her name from the deed, or write a new one. A new deed was then written for Kline alone, which was executed by Kintz and wife. Kline then gave his judgment to Kintz for the balance of the purchase-money, as also a bond and mortgage to Beelman for $400. It was further proven that when the deed was to be written in her name, in pursuance of the agreement, she said that as the property had been sold to her husband, Kintz should make the deed to him, and take the judgment from him, as she would give no judgment on her property. That Kline had said that he only bought the property because his wife wanted to put the money into it which she had received from her father’s estate, and that he had paid $900 of her money on account of it, and therefore he was willing that the deed should be m.ade in her name.</p> <p>The court below, on hearing the case, delivered the following opinion:—</p> <p>“ The court refuse to set aside the sale in this case, for the following reasons, to wit:</p> <p>“ 1. Because Michael Lambert, the purchaser, by his answer to this citation, does not object to the title of the land purchased, but is willing to comply with the conditions of sale, and does not desire the confirmation to be rescinded.</p> <p>“ 2. Because, after the articles of agreement had been executed between Kintz, John Kline, and Catharine Kline, for the sale of the land in question, Mrs. Kline refused to secure the purchase-money, and consummate the contract — told Mr. Kintz that he had sold the property to her husband; that he should make a deed to him, and take a mortgage or judgment from him, but that she would not give any. Mr. Kline then gave a judgment to secure the payment of the balance of the purchase-money, and to liquidate which this sale was made.</p> <p>“We think it would be inequitable to open the confirmation of the sale, or by any summary action of the court to endanger the claims of the judgment-creditors.</p> <p>“If Mrs. Kline has a right to any portion of the land, the action of ejectment is open to her.</p> <p>“ And now, to wit, March 4th 1861, the court order and decree, that the citation and all the proceedings upon it be dismissed, and that the administrator of John Kline pay out of his estate the fees of the clerk of the Orphans’ Court, and that all actions, costs, and expenses of the proceeding be paid by the party at whose instance they were incurred.”</p> <p>The case was thereupon removed into this court by Mrs. Kline, for whom the decree of the court below was assigned for error.</p>

Tbis was an appeal by the devisees, legatees, and heirs at law, from the decree of the court below, distributing the balance in the hands of John Swarr, trustee, appointed by the court to sell the real estate late of Christian Musselman.

<p>Abandonment of Improvement Right.— What constitutes a Conveyance of Land. — Agreements executed and executory. — Parol Rescission of Agreement for Sale of Land.</p> <p>. 1. Where land, surveyed in 1794, was, more than seven years afterward, entered upon by a settler, and appropriated, the survey being then, and up to the year 1832, unreturned, it was held, that, by the failure to return the survey, the land was open to a new appropriation by settlement or otherwise, though the warrant upon which the survey was made, belonged to Nicholson, and the state lien depended upon his title.</p> <p>2. A., owning a farm, agreed by written “articles of agreement,” to convey it to B., in consideration of his covenants also expressed in the instrument, to support comfortably himself and wife during their joint lives, and to furnish them a house and garden upon another tract of land: each entered into possession of the land received from the other under the agreement, which was closed as a conveyance, by the grantor’s acknowledgment of the receipt of the nominal consideration of one dollar. The operative words in the instrument were words of present grant, nor was there, by expression or implication, any agreement or necessity for future assurance. After the death of the husband, in an action of ejectment to recover possession of the farm, for defect of compliance, it was held that the instrument was not executory upon the part of the grantors, but that it was a present conveyance of their title, and that their only remedy against the grantee, was upon his covenants therein, which were independent and executory.</p> <p>3. Where, under the executed agreement, the possession of the farm had been at the time delivered and enjoyed for many years afterward, by the vendee, there could not be a parol rescission of the conveyance, so as to reinvest the grantors with title, without a violation of the Statute of Frauds.</p>

<p> Agreement between the Penns and Lord Baltimore, as to Boundary Line. Effect of, on Maryland Titles to Land in Pennsylvania. </p> <p>1. The agreement of 4th of July 1760, relative to the boundary line between the Penns and Lord Baltimore, did not confirm any Maryland titles to land in Pennsylvania, west of the Susquehanna river, except those then existing by grant and occupation, within one-fourth of a mile north of Mason and Dixon’s line.</p> <p>2. Where a Maryland patent was obtained in 1754, for certain land, and afterwards, under the laws of that state, a resurvey was made in 1765, and a patent issued for the same land, and a “ contiguous vacancy,’’which was within the state of Pennsylvania and the limits designated in the agreement of 4th July 1760, that agreement would not protect the holder of the “vacancy,” for he was “ not in actual possession” of it in 1760, as required by the agreement.</p> <p>3. The occupancy of the tract, at and prior to the year 1760, to which the contiguous vacancy was attached by the Maryland patent in 1765, was not an actual occupancy, by pre-emption or otherwise, of any “vacancy” which might subsequently be taken in by a resurvey, and therefore the Maryland grant in 1705, for such “vacancy,” which was within the limits covered by the agreement of 4th July 1760, was void, for it was in violation of the agreement, and was not within the jurisdiction of the Maryland proprietary.</p> <p>4. Where land claimed under an invalid Maryland title, was appropriated by a descriptive warrant, dated April 6th 1842, followed by a survey on the 30th of the same month, the title under the warrant would prevail against the Maryland title, the holder of which had commenced no improvement until after the date of the warrant.</p>

This was an action on the case sur assumpsit, brought August 7th 1860, by the Lebanon Valley Bank against Eli Klopp and Henry Stump, doing business as Klopp & Stump, to recover the value of a promissory note for $3000, drawn March 21st 1860, to the order of Myers & Shour, payable in two months, which was discounted at the Lebanon Valley Bank, and duly protested for non-payment.

<p>Appeal from the Common Pleas of Somerset county.</p> <p>This was an appeal, by David Saylor, from the decree of the court below, on a bill in equity filed by him, March 20th 1855, against Conrad M. Hicks, Richard D. Johnson, and James Smith.</p> <p>On the 25th day of January 1853, David Saylor entered into an agreement with Conrad M. Hicks for the sale of the iron ore and coal imbedded under the surface of his farm, in the township of Summit, Somerset county, Pennsylvania, to himself, and his heirs or assigns, as much coal, &c., as he or they may want for their own use. On the 3d of April 1854, a deed was executed, conveying to Conrad M. Hicks, Richard D. Johnson, and James Smith, their heirs and assigns for ever, all the stone coal, iron ore, fossil, limestone, and all other minerals and mineral substances, with the reservation to the grantor and wife, during their natural lives, and during the natural life of the survivor of them, the right and privilege of taking, using, and mining, in a proper manner, all the stone coal that may be necessary for their own domestic use on the residence upon said farm, and the privilege and right of using all the stone coal that may be necessary for the farm, &c. On the 20th of March, the plaintiff, by Gaither $ Meyers, his counsel, filed a bill in equity, alleging that the deed was obtained by fraud, as it conveys more than Hicks bought by his article of agreement, and that the plaintiff had sold nothing but the iron ore and stone coal.</p> <p>The subpoena was returned served personally on C. M. Hicks, and nihil as to the other defendants.</p> <p>After the answer of the defendant was filed, Mr. Hugus was appointed to take testimony, ascertain the facts, and report; which was done on the 26th of August 1855. A supplemental bill and answer were then filed. On the 18th of September 1855, by agreement of counsel, an issue was directed to find for the information of the conscience of the court, the truth or falsehood of the following propositions, viz.:</p> <p>1. Was the agreement mentioned in plaintiff’s bill fraudulently obtained from plaintiff by Conrad M. Hicks, one of the defendants ?</p> <p>2. Was the deed mentioned in plaintiff’s bill fraudulently obtained from plaintiff by the defendants, or either of them ?</p> <p>The agreement provided that these facts should be found by the jury without any formal pleadings; the plaintiff, Saylor, affirming, and the defendant, Hicks, denying the propositions.</p> <p>On the 13th of November 1855, a jury was called, who, on the 15th, rendered a verdict for defendant.</p> <p>The jury fee was paid, November 19th 1855, by Stutzman, who was of counsel for defendant; and, on the 24th of November 1855, the plaintiff paid the costs.</p> <p>On the 14th of June 1860, Baer, Brothers, who were then counsel for defendant, moved the court to enter the following decree:</p> <p>“ The jury, on the trial of the cause, having returned a verdict on the issues joined in favour of the defendants, on the 7th day of February 1860, and the cause being now before the court sitting in Chancery, on motion of counsel for defendants to enter the decree, therefore, upon consideration thereof, it is ordered, adjudged, and decreed, that the agreement in the plaintiff’s bill mentioned, to wit, the agreement made between Conrad M. Hicks and David Saylor, on the 25th of January 1853, and the deed mentioned in said plaintiff’s bill, to wit, the deed made on the 3d day of April 1854, by David Saylor and wife to Conrad M. Hicks, Richard D. Johnson, and James Smith, were not, nor was either of them, fraudulently obtained by Conrad M. Hicks, Richard D. Johnson, and James Smith, or either of them, from the said David Saylor, and that the plaintiff’s bill be dismissed at his costs.”</p> <p>To tbe entry of this decree tbe counsel for plaintiff protested, because,</p> <p>1. The jury did not certify the facts found so as to enable the court to decree on their finding.</p> <p>2. The jury should have certified to the court the facts ascertained, and the evidence on which their verdict was predicated.</p> <p>3. The plaintiff, by his counsel, asks permission of the court to withdraw his petition and all the papers filed in this proceeding.</p> <p>4. It would be unjust to allow the defendants a decree, after the plaintiff brought his action of trespass, to try the question of fraud in obtaining the deed, he having abandoned the bill in equity before it was terminated, and elected to proceed in the action of trespass.</p> <p>5. The plaintiff should be allowed to withdraw the proceedings in this ease, for the reason they are informal, and commenced prematurely, and for the further reason, that there is no necessity for this bill, as the common law affords ample remedy.</p> <p>6. The defendants are not entitled to ask a decree; the plaintiff alone can do this; the defendants can only push the plaintiff to a nonsuit, or the withdrawal of the proceedings. .</p> <p>The court directed the entry of the decree, as prayed for by defendant, whereupon the plaintiff appealed to this court, averring that the court erred in entering the decree without the notice to the counsel for plaintiff, prescribed by the rules regulating equity practice; in refusing permission to plaintiff to withdraw his bill; and in not sustaining the exceptions filed against the entry of the decree.</p>

<p>Conveyance in Anticipation of Indebtedness, when valid.of Life Estate, when void. —Sheriff’s Sale</p> <p>1. A., owning land, conveyed it by deed to B., in trust for tbe use of himself and wife during their joint lives and the life of the survivor, with remainder to their children. 0. afterwards sold a mule to A., taking therefor the judgment-note of himself and wife, upon which execution issued, and fifty acres of the land were levied and sold to 0., who brought ejectment, claiming that the trust-deed was void, because made to hinder, delay, and defraud creditors, and in anticipation of future indebtedness, proving that A. had several small debts at the date of the conveyance; that immediately after, he borrowed §200 to pay them, and had expressed apprehensions that other claims might be brought against him. Held, that though a fraudulent motive for the conveyance could fairly be inferred from the grantor’s having entered into a new and hazardous business, or from his having contracted large debts immediately thereafter, yet a mere expectation of future indebtedness, or an intent to contract debts, not coupled with a purpose to convey the property to keep it from the reach of creditors, was not within the letter or spirit of the statute 13 Eliz., and would not avoid the conveyance as against subsequent creditors. That if 0. knew of the trust-deed at the time he sold the mule, of which the taking the judgment-note of A. and his wife therefor was evidence, the conveyance did not hinder, delay, nor defraud him, and was therefore good as against him; and that the jury should thus have been instructed by the court.</p> <p>2. The sheriff’s sale on vend. ex. of the land, did not vest in C., A.’s life estate: for there was no adverse possession in hostility to it; no sufficient evidence that the debtor claimed to hold in fee; nor could 0. have had reasonable ground to believe that the fee was in A., since he had record notice of the deed in trust; therefore the sale of the life estate, without the order of the court on ten days’ notice to the tenant for life, as directed by the Act of 24th February 1849, was void, and conferred no title upon the purchaser.</p> <p>3. Where the levy and sale were made with knowledge of the trust-deed, the levy being made on the land as the property of the wife as well as that of the husband, it was a question of fact for the jury, whether or not the plaintiff intended to assert the trust-deed. If he did, it was not conclusive upon him ; and it was error for the court to declare, as a conclusion of law, that the plaintiff’s title was founded on the trustrdeed alone, and that he was estopped from denying the validity of that deed, or asserting that he bought any other title than the one conferred by it.</p>

<p> Terre-tenant not entitled to benefit of Exemption Laws. </p> <p>1. A terre-tenant is not entitled to the benefit of the Exemption Law of the 9th April 1849, out of the proceeds of land, bought by him subject to judgments, under one of which revived against the defendant therein, with notice to the terre-tenant; the land was sold.</p> <p>2. A terre-tenant is not a “ defendant” or a “ debtor,” within the meaning of the Exemption Act.</p>

<p>Error to the Common Pleas of Cumberland county.</p> <p>This was an action of trespass on the case, by Samuel Rhoads against Jacob Keller.</p> <p>The material facts of the case are these: — In 1844, John Keller, a son of the defendant, was appointed committee of the person and estate of Henry .Kenaga, a lunatic, and gave bond in the usual form, with Samuel Rhoads as his surety. The lunatic was entitled to a legacy under the will of his father, who died in Ohio. Mr. Rhoads, being apprehensive that Keller would not appropriate this legacy properly, objected to his receiving it without some additional security. The parties called on Jacob Keller, the defendant in this suit, and requested him to unite with John Keller in a bond of indemnity to Rhoads, which he declined; but it was then and there agreed that Jacob Keller should take a power of attorney from John Keller, proceed with it to Ohio, receive the legacy, and retain it until Rhoads should be released from his suretyship or should give to John Keller an order to draw the money. This took place in January 1846. Jacob Keller went to Ohio as attorney for John, drew on account of the legacy $408.95, which, in June 1846, he handed over to John Keller, knowing that he intended to use it for the payment of a private debt to the Chambersburg Bank.</p> <p>In 1852 John Keller became insolvent, but continued to act as committee of Henry Kenaga until 1858, when his account was audited, showing in his hands a balance of $528.18.</p> <p>To recover this balance suit was brought“by the administrator of Henry Kenaga against John Keller and Samuel Rhoads, on their bond, to November Term, 1858, No. 48, on which there was an award in favour of plaintiff. Keller did not appeal, but Rhoads did; against whom there was a verdict and judgment, December 19th 1860, for $634.91.</p> <p>This suit was brought to January Term, 1859, by Rhoads against Jacob Keller, as above stated (and was subsequently marked for the use of the administrator of Henry Kenaga, who sought to recover a verdict for the amount of money so as aforesaid received by defendant, to be released on payment of the judgment which had been obtained by Kenaga’s administrator against Rhoads, the surety of John Keller.</p> <p>The following points were submitted to the court.</p> <p>The plaintiff’s counsel requested the court to charge, that, if the jury believe that the plaintiff, Samuel Rhoads, was the surety of John Keller, the committee of Henry Kenaga, a lunatic, and desired to be relieved of his suretyship, and it was agreed between the said John Keller and the said Samuel Rhoads, that he should be relieved, and for that purpose gave a power of attorney to Jacob Keller, the present defendant, to receive a part of the trust fund in consideration and for the purpose that he should hold the said fund as an indemnity to and for the said Samuel Rhoads, as the surety of John Keller, on his bond as the committee of Henry Kenaga; and the said Jacob Keller then and there, before the said money was received, promised and agreed that he would not pay it over to the said John Keller, but would hold it as indemnity to the said Samuel Rhoads for his liability as surety of John Keller; and if the jury believe that the said Jacob Keller did receive the money upon the power of attorney referred to, and, in violation of his agreement with Samuel Rhoads, has actually paid it over to John Keller, who is now and has been insolvent for many years; and if it further appears that Samuel Rhoads has been actually sued upon his bond as surety of John Keller, and a judgment recovered against him, which is now ripe for execution; then the plaintiff is entitled to recover in this action a verdict for the amount of the money so paid to the said Jacob Keller, conditioned to be released upon the payment of the amount of the verdict and judgment in the action of Todd, administrator of Kenaga, v. Samuel Rhoads, which is for a less amount than the claim in this action.</p> <p>The defendant’s counsel presented the following points:—</p> <p>1. That an action cannot be commenced before the cause of action accrues; and as the plaintiff now asks to recover from the defendant a sum of money which was not adjudged to be due by him when he commenced this suit, he cannot recover.</p> <p>2. That a surety’s cause of action against a co-surety for contribution, accrues when he has paid the debt of his principal, and not before, and the evidence in the cause shows that the plaintiff has not paid the money which he seeks to recover from the defendant, and cannot, therefore, maintain his action.</p> <p>3. That there can be no recovery by the plaintiff against the defendant, under the evidence in the cause upon the declaration filed, and under which the issue is made up.</p> <p>4. That the relations of parties to the issue trying, having been fixed before the cause was marked, for the use of the administrator of Henry Kenaga, deceased, the cause must be tried between them as it originally stood; and if the plaintiff could not recover before it was so marked, he cannot now.</p> <p>5. That there is no consideration for the promise on which plaintiff has based his cause of action against the defendant.</p> <p>6. That if John Keller gave defendant a power of attorney to receive the sum of $405 in Ohio, and he did so receive it, and afterwards paid over that amount to his principal at his request, and that is the same money which the plaintiff now seeks to recover in this action, the defendant is not liable.</p> <p>7. The Statute of Limitations is a bar to the claim of the plaintiff in this action.</p> <p>The court below (Graham, P. J.) affirmed the point submitted by plaintiff, and answered defendant’s points as follows :—</p> <p>“ 1. An action cannot be commenced before the cause of action accrues, but the plaintiff had a cause of action when he commenced this suit.</p> <p>“ 2. The law is here correctly stated as to co-sureties. But this is not the case of co-sureties for a common debtor, and the point is, therefore, inapplicable to this case.</p> <p>“ 3. This action for money had and received is assimilated by our courts to a proceeding in equity, and may be used to supply the place of a bill in a court of equity, where a proper case is presented; and, under the evidence in this case, we think the present action may be sustained.</p> <p>“ 4. This is correct. If plaintiff could not recover as the suit was originally brought, marking it for the use of the administra^ tor of Henry Kenaga, deceased, would not enable him to do so.</p> <p>“ 5. The facts proved show a consideration sufficient to sustain the action. If Rhoads, the surety, agreed that Keller should receive this money, which he might have prevented by a proceeding to be discharged as surety, upon the promise that Keller would not pay it to the committee without Rhoads’s order or consent, this would be a sufficient consideration.</p> <p>“ 6. We cannot answer this as requested. If Keller paid it over contrary to the contract and understanding of all the parties, and upon which he received, he may be held liable.</p> <p>" 7. The action accrued in this case upon the settlement of the account of the committee when his indebtedness to the estate was ascertained, and not before. This was in 1858; consequently the Statute of Limitations will not bar a recovery.”</p> <p>Under these instructions the jury found for the plaintiff the sum of $759.56, to be released upon the'payment of judgment No. 43, November Term, 1858, with costs; on which verdict judgment was entered.</p> <p>The defendant thereupon sued out this writ, assigning as cause for reversal here that the court below erred, in affirming the plaintiff’s point, and in their answers to defendant’s 3d, 5th, 6th, and 7th points.</p>

<p>Error to the Common Pleas of Blair county.</p> <p>This was an action of trover, brought to July Term 1858, by Charles Hughes against the Pennsylvania Railroad Company.</p> <p>The facts of the case were these :—</p> <p>On the 81st August 1854, the Commonwealth of Pennsylvania entered into a contract with the Cambria Iron Company for a supply of rails to lay the track of the New Portage Railroad, stipulating for the delivery of the new rails at the west end of the Portage Railroad, and selling the old rails to them “to be delivered to the company at the same point whore they deliver new rails.” On the 18th July 1855, the Cambria Iron, Company assigned the contract to Wood, Morrell & Co., wdio were then carrying on the Cambria Iron Works at Johnstown. Charles Hughes, the plaintiff, was manufacturing fire-brick near Plane No. 8, on the Old Portage Railroad, and had his works connected with the old track by a siding, put down with iron belonging to the Commonwealth, for which he had obtained the consent of the superintendent of the road. This old track connected his works with the new when it was laid. Some time in 1856 Mr. Hughes applied to the canal commissioners for the old iron from the foot of Plane No. 8 to where the Old Portage Road intersected the new. General Callahan, the superintendent of the road, in company with Hughes, measured the track, and found that there were between 70 and 80 tons of iron upon that part which Hughes proposed to purchase. Callahan, by direction of the canal commissioners, informed Hughes that they could not sell to him; that the old iron had been sold to the Cambria Iron Company, and that if he wished to buy he must apply to Wood, Morrell & Co. Hughes went to Morrell in September 1856, and offered to buy that part of the old road between Ms works and the new road. Morrell told him he could not give him an order for any special portion of the track; that the iron did not belong to them until it was delivered; but he would give him an order on Callahan for 10 tons, which he might deliver to him whenever he saw proper. Hughes thereupon paid $500, and Morrell gave him an order on the 2d September 1856, to General Callahan for 10 tons of “ Old Portage Railr.oad iron, of the same now lying upon the old road between the factory of Mr. Hughes, at or near Plane 8 and the intersection of the new Allegheny Portage Railroad, the weight to be estimated by General W. S. Callahan, and the estimate returned to ustelling him that he must present the order to General Callahan.</p> <p>With this order there was the following bill and receipt:—</p> <p>Plollidaysburg, September 2d, 1856.</p> <p>Mr. Chas. Hughes</p> <p>Bought of Wood, Morrell & Co.</p> <p>10 tons of Old Portage Railroad iron, at $50 per ton, $500. Received payment,</p> <p>Wood, Morrell & Co.</p> <p>The order never was presented, nor was any measurement or estimate of the iron ever made by General Callahan, or by any other officer of the Commonwealth, nor did Hughes ever inform Callahan that he had the order, or request an estimate to be made of it.</p> <p>Mr. Morrell settled with Mr. Gay, on part of the Commonwealth, for 10 tons, allowing a credit for $500, “ after the works had all passed to the Pennsylvania Railroad Company.”</p> <p>The track remained undisturbed, and was iii the same condition at the time the public works were sold to the Pennsylvania Railroad Company as when Hughes received his order. It was agreed upon the trial that a deed had been executed and delivered to the Pennsylvania Railroad Company for the public works, in pursuance of the Act of 16th May 1857. After the railroad company became the owner of the public works, they took up the track of the Old Portage Railroad, and included in it the track between Mr. Hughes’s brick-yard and the New Portage Railroad. Mr. Hughes claimed to have purchased the whole of this track, and brought this action of trover to recover the value of the whole of it, claiming some 70 or 80 tons of iron.</p> <p>The defence was—</p> <p>1. That the iron was not delivered to plaintiff according to the terms of the written order, and upon the terms contained in it. And,</p> <p>2. That if his contract with Wood, Morrell & Co. had been executed so as to vest in him the title to the ten tons, the defendant, who subsequently purchased from the Commonwealth with-» out any knowledge of the transaction, occupies the position of a subsequent bond fide purchaser without notice.</p> <p>The court below (Taylor, P. J.), after stating the main facts, charged the jury as follows:—</p> <p>“It is quite clear, we think, that the plaintiff acquired and had, no right whatever to one pound of the iron beyond the specific quantity which he bought and paid for. It was all, even that upon the siding, the property of the Commonwealth. It is not claimed that'any one had undertaken, with or without authority, to sell to the plaintiff the iron on the siding, or that he had bought it. His use of it for a purpose connected with the use of the road, though permitted by the agents of the Commonwealth, gave him no title to it; and, although such use or possession of it might avail him in trover against a mere wrongdoer, the defendant does not occupy that position, having succeeded to the rights of the Commonwealth by purchase. He bought only the specific quantity of 10 tons, lying on the track of the old Portage. The only question is, can he recover for that quantity? For that amount, his claim is not without merit, though it has to struggle against the rules of law interposed by the defence. That quantity he paid for, and Wood, Morrell & Co. accounted for it to the Commonwealth.</p> <p>[Against the plaintiff’s claim for the ten tons, however, it is urged:</p> <p>“1. That his contract with Wood, Morrell & Co. was not executed by a delivery of the iron, and that he acquired no title by the contract. We think, however, that since the plaintiff wanted to use the iron where it was, he and Wood, Morrell & Co., as between themselves, might waive the delivery according to the strict terms of the contract of the latter with the Commonwealth, and may be regarded as having done so; and that the transaction as between him and them and the Commonwealth, gave him title to the quantity of iron purchased.]</p> <p>“2. It is further objected that, whether he acquired title to the 10 tons, as against Wood, Morrell & Co., or the Commonwealth or not, the defendant is a subsequent bond fide purchaser without notice, and therefore protected.</p> <p>“The defendant, in this respect, undoubtedly occupies the position of any other purchaser ; and, if there was not a delivery of this iron, in the absence of evidence of notice to the defendant of his purchase, his claim, on this ground, must fail. If, as he wanted to use the iron where it was, and did use it where it was, he had purchased all that he continued so to use in connection with his works, it might fairly be contended that it was such a delivery as, under the circumstances, could reasonably be had, and therefore sufficient; but this was not the case. It was a purchase of 10 tons out of a much larger quantity, used in the same way, and in no way distinguished. [It is claimed, however, that the sale of the iron on the Old Portage Road, by the Commonwealth, in part payment of the iron for the New Portage Road, was a public fact, evidenced by the minutes of the board of canal commissioners, and by documents in their office, and from which, together with the situation of the old road at the time, it may be inferred, in point of fact, that a party purchasing those public works would know, and did know, of these contracts. Whatever is sufficient to put a party upon this inquiry amounts to notice. We leave it to the jury to determine whether there is in the facts thus suggested, or in any other evidence bearing upon the intercourse and relations of the parties in this business, sufficient to satisfy them that the railroad company, at the date of their purchase, knew of the prior sale of this iron by the Commonwealth. If there is, he may recover for the 10 tons; if not, his claim wholly fails, and your verdict should be for the defendant.]</p> <p>“ To this charge and opinion of the court the counsel of the plaintiff and of the defendant excepted, and prayed that the same may be reduced to writing and filed on record, which was accordingly done, and bills of exception signed and sealed.”</p> <p>There was a verdict and judgment in favour of plaintiff for $575. Wkoreupon the defendants sued out this writ, assigning for error here that the court below erred in that portion of the charge which is enclosed in brackets.</p>

<p>Construction of Bond of Indemnity. — Equitable Substitution not allowed where Claim of Party to whose Right it is ashed, is unsatisfied.</p> <p>A judgment-bond of indemnity by one largely indebted, was given to three, in the sum of $200,000, upon condition to be void “ if the obligor or his heirs, executors, &e., shall pay or cause to be paid, unto the persons holding and owning the notes, drafts, and claims specified on the back thereof, or to their certain attorney, executors, administrators, or assigns, the full sum set opposite thereto on the back thereof, and shall indemnify and save harmless the obligees as sureties or endorsers of said notes, drafts, and claims, and indemnify each of said obligees against all other claims for which they may be liable as sureties of the obligor, and shall furnish obligees with money to meet said claims, to raise which, as well as to secure the obligees, this bond is given,” &c. Among the claims endorsed on the bond, there was a draft which had been drawn by the obligor to the order of one of the obligees, and accepted by T., P. & Co., for accommodation of the drawer, without any consideration and without having any funds of his in hand, which was not known to the obligees. This was held at maturity by McT. & Bro., by whom suit was brought against all the parties, and a judgment recovered, which was paid by P., for the firm of T., P. & Co. No funds were furnished by the obligor to meet this claim, nor were the proceeds of his property realized by the obligees, sufficient to satisfy the claims, to secure which the bond was given. In an action by P. against the obligees, for a pro rata share of the proceeds of the obligor’s property, it was held, that, in discharging the liability of C., the plaintiff aid nothing more than he was legally bound to do, and could not come in by equity on the fund raised by the indemnity bond.</p>

<p>Appeal from the Common Pleas of York county.</p> <p>This was an appeal by Peter Erwin from the decree of the court below, distributing the proceeds of the sheriff’s sale of the real estate of Henry Imhoff and Jacob Myers, doing business as Imhoff & Myers.</p> <p>Imhoff & Myers were partners, engaged in the business of distilling whiskey and feeding stock in York county, having commenced some time in 1840, at which time they purchased a lot, on which they erected their distillery.</p> <p>On the 3d of April 1848, Myers purchased an adjoining lot for the use of' the firm in their business. The deed was taken in the name of Myers, but it was paid for with partnership funds, and though not used for the purpose for which it was purchased, it was held and used in all respects as partnership property.</p> <p>On the 21st of July 1857, A. D. Ditmars recovered a judgment against Henry Imhoff for $2000. August 3d 1857, Peter Erwin recovered a judgment against Imhoff & Myers for $2099.68, and John Fisher one on same day against Imhoff & Myers for $1552.50, both of which were confessed by Myers for partnership debts.</p> <p>On the 30th of September 1858, George W. Wantz entered in the Common Pleas the transcript of a judgment against Imhoff & Mentz, on which execution was issued, and in due time the lot which had been purchased in 1848, as above stated, was sold, and the proceeds brought into court for distribution. The auditor distributed to A. D. Ditmars one-half the net proceeds of sale on his judgment against Imhoff, on the ground that the lot, though purchased with partnership funds, was not necessary for partnership purposes, under the ruling in Coder & Peterman v. Huling, 3 Casey 84. The other half he divided pro rata between Erwin and Eisher, on their liens against the firm; for whom exceptions against the confirmation of the report were filed.</p> <p>The court below, without delivering any opinion, dismissed the exceptions and confirmed the report. The case was then removed into this court, where the decree of the court below in the premises was assigned for error.</p>