Volume 4 — Pennsylvania State Reports

<p>Proof of the death of a grantor in addition to the proof of the handwriting of subscribing witnesses to a deed, preparatory to its admission to record, does not affect the right to read it in evidence without further proof.</p> <p>A private sale and conveyance to the original owner of land, purchased by the commissioners for the county at a tax sale, after the expiration of the five years allowed for redemption, if without collusion, is valid, oven though the full amount of the arrears may not have been paid as a consideration, it being essentially a redemption, and in accordance with a general custom.</p> <p>Nothing hut a corrupt agreement to defraud the revenue would avoid the conveyance. Per Gibson, C. J.</p> <p>Evidence of the custom to make such conveyances may he received, not as a custom binding above the statutes, but as an argument for their construction.</p> <p>And this evidence is for the court, and hence not the subject of a writ of error.</p> <p>A patent is conclusive against a subsequent intruder; hut one entering under colour of title, even though it be absolutely void, cannot be considered in that character.</p> <p>Professional opinions, read not as evidence of the law, but as arguments, not the less cogent that they show the reasons for the actual opinion of the writer.</p>

<p>In case by husband and wife, for slanderous words" spoken of the wife, brought by A. L and C. his wife, where the declaration stated “ whereby the said O. L. lost, &c.,” and the plea of justification was “ as to the words complained of being spoken against C. L., wife of A. L.held, that there were proper parties to the action.</p> <p>After a trial, on the merits, in slander, this court will not reverse a judgment on the grounds that there was no replication to defendant’s plea of justification, and no issue joined thereon.</p>

<p>In suits by or against executors or administrators, when the estate is notoriously insolvent, a debt not due at the time of the death of the testator or intestate, although it became due before the commencement of ihe suit, cannot be set off.</p> <p>If the estate of the testator or intestate be solvent, such debt can be set off; and it makes no difference that the debt proposed to be set off was not due at the time of the death of the testator or intestate, if it were due when the suit was commenced.</p> <p>At the death of the testator or intestate, the rights of creditors' to the assets become fixed and determined.</p>

<p>Where certain parts of the minute-book of- a board of school directors were read in évi- ' dence to the jury by one party, and the counsel of the other party, whilst addressing the jury, read and commented upon other parts of the book not given in evidence, to which objection was made; and the court in their charge directed the jury to,confine their attention to such parts of the minute-book as were read in evidence; it was held that such direction was correct.</p> <p>The proper construction of the resolution of the 18th of April, 1843, entitled a “Resolution relative to the education of the poor in the non-accepting school districts,” in relation to the distribution of the school-fund, where a new school district is formed by the erection of a new from an old township, which had accepted the provisions of the common-school' law, is, that the whole fund, as well the state appropriation as the school-tax. of the current year only, in which the new'school district is formed by the erection of the new from the old township, is to be divided pro rata between the old and new townships, according to the number of taxable inhabitants, which they respectively contained at, or immediately after, the division; that all payments'and indebtedness of the school treasury for that year must be examined and charged to that part of the district which has received the sanie, or for which the debt was contracted; and if either party have received more than their due proportion, according to the rule stated, they must be charged with that amount.'</p> <p>Where the school-taxes remain uncollected until- after the formation of a new school district, by the erection of a new from an old township, the new district is entitled to participate in the fund when collected, for whatever years the taxes outstanding may have been assessed.</p>

Sept. IS»-. This was an action of assumpsit brought by the plaintiff’ in error, who was plaintiff below, against the defendant in error, to recover one quarter of a year’s salary, as collector of tolls at the aqueduct, across the Alleghany river. The aqueduct erectéd by the state, across the Alleghany river at • the city of Pittsburgh, had become so much impaired by time, as to be impassable.

<p>A petition praying for a decree of specific performance of a contract for the purchase and sale of real estate should state, either that the petitioner has performed the- agreement on his part, or that he is willing and prepared to perform it; but an omission to make such statement is a defect in form merely, and may be amended.</p> <p>The Orphans’ Court, in cases within the purview of the fifteenth, sixteenth, seventeenth,* and eighteenth sections of the act of 24th’February, ¿834, have the same power and . authority as a court of chancery, to decree, and by necessary implication to enforce by • attachment a specific performance of a contract.</p> <p>Upon a petition for the specific performance of a contract, it is the duty of the court to inquire, after a full hearing of all the parties, whether the case presented be one in which the petitioner is entitled to relief, and if it be such, the nature and extent of the relief to winch he is entitled, under the true construction of the contract, and to decree accordingly.</p> <p>A case, under such petition,is not in a situation fora hearing, where there is no appearance of record for the heirs or administrators, no answer to the petition, no proof of contract, and no opportunity given to prove the same.</p>

<p>A testamentary trust for payment of debts does not revive such debts as are barred by the statute of limitations; but when clear and explicit, and not merely implied, it suspends the statute on debts which are due at the death of the testator.</p> <p>This rule has no. application to personalty in the hands of an executor. Where A., by his will, directed his debts to be paid, and devised to his wife in fee all his estate, and appointed her executrix, no trust is created for creditors which will take their claims out of the statute of limitations.</p>

<p>Tenant for years erected upon the demised premises a brick tan-house, against which , and the ground appurtenant was entered a mechanic’s lien, wherein the tenant was described as owner, or reputed owner. After judgment on the sci. fa. sur Hen against the reputed owner, being the tenant, a fi. fa. was issued, to which the sheriff returned, that he had taken in execution “ all the right, title, interest, and claim of the defendant, (the tenant,] óf, in, and to a certain brick tan-house.’’" On a ven. ex. the sheriff sold what he had levied upon under the fi. fa. Held, that under these proceedings, which were under the act of 1808, nothing more passed to the sheriff’s vendee, than the interest of the tenant in the land. '</p>

<p>Under the act of the 31st of March, 1836, entitled “An act in relation to Duquesne Way, in the city of Pittsburgh,” the report of the viewers appointed to assess damages must be made to the next term. When, therefore, the report is not so made, the power, under the order of the Court of Quarter Sessions, drawn pursuant to the express directions of the act, is expended, and must be renewed by a new order, or the original order continued upon application to the court; and if this practice be not pursued by the petitioner, he loses his remedy for damages.</p>

<p>The endorser of a promissory note protested for non-payment, signed an agreement reciting that, whereas the drawer was about making an arrangement with the holder for the renewal of the note, “ which is to he reduced from five to ten per cent, every sixty days," and consenting that the protested note be held as collateral security, and stipulating to take no advantage of any delay given. The holder received the agreement, and extended the time without always exacting the stipulated reduction. Held, (1.) That the agreement was founded on a sufficient consideration. (2.) That the holder having accepted some renewals without exacting the reduction, had given time to the drawer without the consent of the endorser, and could not recover on the original endorsement.</p>

<p>The act of 1705 does not require that the terre-tenants or purchasers under the mortgagor, should be made parties to the scire facias on the mortgage; but the better and general practice is, to make them parties.</p> <p>If a terre-tenant have no notice of the scire facias and proceedings under it, he will be permitted to make any available defence against the purchaser of the land at sheriff's sale, that he might have set up at the trial of the scire facias, in case it had been served on him.</p> <p>Whore a terre-tenant has not been noticed in the proceedings, the practice has been to permit him to make himself a party pro inieresse suo, and to have the benefit of any equitable or legal defence to which he may be entitled; and for this purpose, the court will stay execution, and order an issue to try the question.</p> <p>The act of 2d of April, 1822, was intended for the benefit of the terre-tenants of purchasers from mortgagors, and was not intended to interfere with the relative equities of the different purchasers.</p> <p>On a levari facias, the sheriff is not bound to sell in a lump all the land contained in the mortgage. He may and ought to sell in parcels, as the property is occupied and enjoyed ; and the court may, and will so direct the sheriff to sell, and in such order as will produce the most money, and at the same time protect the rights and equities of the terre-tenants.</p> <p>A., having mortgaged twenty-seven acres of land to B., afterwards mortgaged ten acres thereof to C., which was sold under C.'s mortgage and released by B.; A. then sold three acres of the remaining seventeen acres to D., with general warranty. Held, that B.'s assignee could not sell the three acres under the mortgage of A. to B. until he had sold the fourteen acres not released, and then only for the deficiency.</p>

<p>If a testator, after malting his* will, sell preyiously.to his death so great a part of the real estate devised, as to render it impossible to give effect to the dispositions of his will, it . amounts to a revocation of the will. .</p> <p>Testator, seised of Whiteacre and Blackacre, directed his executors to sell Whiteacre for the payments of debts, funeral expenses, and certain legacies; the residue of his property of all kinds, after the payment of the-said legacies, he gave to certain other legatees.. Afterwards, he sold Whiteacre, and received the purchase money ; and dying, his personal property barely sufficed to pay his debts, leaving nothing for the legacies first named. Held, that under the circumstances, the testator intended by the sale of Whiteacre to revoke his will as to every thing but ‘the appointment of executors.</p>

<p>Error to the District Court o"f Alleghany county.</p> <p>Sept.'25. This was an amicable action of covenant, in which Mahlon Rogers was -plaintiff, and Jonathan H. Smith defendant.. The facts under which the parties resorted to this action are the following. Thomas Robinson, of the city of -Pittsburgh, in his last will and testament, made, inter alia, the following devise : “ I give and bequeath to my daughter Jane, the house that I now occupy, in' Third street,” &c. After the death of the.devisor, the devisee, Jane''Robinson, being seised of the house’ and lot, under the will of her deceased father, in ■ contemplation of marriage, and a few days previously thereto, with the knowledge and assent of her 'intended husband, Jonathan. H. Smith the defendant, executed á deed, by which she conveyed the said house-and lot to a certain.Charles'. Avery, his heirs, &c., in trust, «that the same shall be and remain for the sole and separate use of'the said Jane Robinson, subject only to the just and reasonable expenses of the trust, and without being subject to the control, appropriation', assignment, or interference of any future husband-’ of the .said Jane Robinson, or of his creditors during her natural, life, and in the event of-her death,' that the said Charles Avery shall grant, bargain, sell, -and convey the same, to the heirs at law of the said Jane Robinson, then being in existence, unless the said Jane Robinson shall, during her lifetime, have made ■ an appointment or testamentary disposition in writing, of all or any of said property, in which case the said trustees shall convey the same pursuant to the testamentary'disposition aforesaid.”</p> <p>■ After- her' marriage, and the birth’of four children, then all 'living, the said Smith.and wife filed a hill in Chancery, in the District Court of Alleghany county, against the trustee, and the said minor children, in which they alleged upon oath, that the said deed was executed by mistake and under imposition, contrary to her intention, &c., that the property was rendered unproductive by fire, &c., and praying that the deed might be reformed and made according to her intention, and that her appointing power might be enlarged into a general power, omitting the word “testamentary.” The subpcena issued under this bill was not served personally on the minor children, they not being within the jurisdiction- of said court. But, on the same day, viz., January 7th, 1846, on which the subpcena issued, the court, at the instance of the complainants, appointed Thomas G. Robinson guardian ad litem, who accepted the service of the subpoena, which was also served on the trustee. On the 31st of January, 1846, Thomas G. Robinson, the guardian ad litem, filed his answer. On the 11th of April, 1846, by leave of the court, the trustee withdrew his appearance, and the guardian ad litem his appearance and answer. Whereupon, on the same day, the bill was taken pro confesso, and the court reformed the deed of trust in conformity with the prayers of the complainants.</p> <p>At the session of the Legislature in 1846, the following act, entitled “ An act to authorize J. H. Smith and wife to sell certain real estate in the county of Alleghany,” was procured:</p> <p>“Whereas, Jane Smith, wife of Jonathan H. Smith, Esq., late of Pittsburgh, when about to enter into the marriage contract with said Jonathan in 1838, executed a deed of trust, for the purpose of giving her estate, real and personal, to said trust for the (her) sole and separate use, and with a general (power of) appointment, as she then supposed;</p> <p>“ And, whereas the language of said deed as to the power of appointment is somewhat ambiguous, and may be construed so as to restrict her power of disposing of the same to a testamentary disposition, contrary to her wish and intention when said deed was executed, and contrary to the understanding with her intended husband upon their intended marriage; therefore,</p> <p>“Be it enacted, &c., that the said Jane shall have power of disposing of her said estate so limited, by any instrument in writing, signed and sealed, and acknowledged for such estate or estates, and upon such uses and trust as she, the said Jane, may deem advisable.”</p> <p>Under the deed of trust, as reformed by the court, and the act of Assembly, Jonathan H. Smith and Jane, his wife, formerly Jane Robinson, sold and conveyed to Mahlon Rogers, the plaintiff, by-deed of grant, bargain, and sale, dated the 13th day of August, 1846, the trust property, being lot No. 301, for the consideration of $401, which was paid. In this deed-, Smith and wife covenanted, that they «had a good and'sufficient right to sell and convey the premises in fee to said Rogers.” On this covenant, the amicable action in this case was entered, to determine whether-the title of Rogers, the plaintiff, to the property conveyed, was good and indefeasible, under the facts and circumstances of the case. It appeared, by the paper-book, that the parties on a case stated for the opinion of the court below, agreed as follows :</p> <p>If Smith, the defendant, has made a good title to said Rogers by said conveyance, or if his wife can make a good conveyance by her appointment and power to her trustee, &c., judgment is to be entered for defendant. But if said Smith and wife have no good right to convey, then the judgment is to be entered for plaintiff for $401. If the judgment is for the defendant,, and the'court should be of ■opinion, that to make a good title it is necessary to make a conveyance through the trustee, no proceeding is to be had upon a bond given by said Rogers to said Smith, for $300 of the purchase money, until the said trustee shall malee a deed to. said Rogers; and if judgment is entered for plaintiff, he is only to enforce thereby the repayment of the money paid to said Smith, being $100;</p> <p>The court entered judgment for the defendant; whereupon the plaintiff sued out this writ of error, and assigned the following errors:</p> <p>“That the court erred in rendering'judgment for defendant, when they shbuld have entered judgment for plaintiff) because the defendant had brpken his covenant,’«that the-parties (said Smith and; wife) had a good and sufficient right to sell and convey the premises to Rogers in fee,’ and said Smith has not "made a good title to Rogers, being defective in these particulars, viz.:</p> <p>«1. The devise of a < house’ in Thomas Robinson’s will did .not • vest any title to the lot in question, adjacent thereto, in Jane Rotónson, the devisee, wife of defendant.</p> <p>« 2. The deed of marriage settlement contains no words creating-a trust, and the use created by said deed being executed by the statute of uses; in the cestui que trust, the defendant was entitled to curtesy therein, and his estate thus raised passed to his assignee in bankruptcy, and not by the deed in question;</p> <p>« 3. The decree in Chancery, pretending to - reform the marriage settlement, and vest in Jane Robinson (Mrs. Smith), a power to convey during her lifetime, was without jurisdiction, authority, or proof, and void. Also, of no effect, because the infants were not bound until of age.. • . ' .''</p> <p>«4, The act of Assembly assuming to confer an authority to Jane Robinson, (Mi's. Smith,) to divest the estate of her heirs, is contrary to said deed, and contrary to common right and magna charta, and directly impairs the obligation of the contract.”</p> <p>The first objection to the title was raised upon a doubt started in 2 Hilliard’s Abr. 528, supported by 4 Leonard, 16; 2 Chan. Cas. 26, and Keilw.' 57, whether the word “house” without “with appurtenances,” carried the garden and curtilage, (within which lay the- premises conveyed.) If tlje court, however, should approve directly the dicta in 4 Rawle, 342, citing Cro. Eliz. 89 ; Plowden, 171; 2 Saund. 401, note 2, to which might be added Shep. Touchst. 94; Co. Litt. 5, b, n. 1, this objection might be removed. See also Clements v. Collins, 2 Term Rep. 498, and 3 Metcalf, 423.</p> <p>The second objection was, that the deed of settlement being deficient in the technical words necessary, (2 Chitty Bl. p. 335, note 52,) to create a trust, the use was executed by the statute of uses, and the legal estate remaining in the cestui que trust, the wife became subject to 'the husband’s right of curtesy, which passed away by bankruptcy since the marriage. This difficulty is also obviated, if the court should adopt the doctrine of 1 Vernon, 415; 7 Term Rep. 648; 4 Dessaus. 550 ; 10 Conn. 244; 10 Johns. 494; 8th Yerger, 33, and especially Ayer v. Ayer, 16 Pickering, 327. s</p> <p>The third objection was to the decree in Chancery; pretending to reform the deed of settlement and assuming to restore to'Mrs. Smith a power of' appointment. This was irregular and inefficient; because the infant defendants were not summoned personally. Harrison’s Chancery, 474,478, 479-; 3 Dana, 405 ; 3 Bibb, 525. Because no answer was filed, or'it was withdrawn. 4 Dana, .136. No special order was made before the decree was taken pro confesso; 2 Johns. . Ch. 247'; nor was the decree founded upon proof or evidence,-as it should always be, against infants. 8 Ohio Rep. 381; 3 Johns. Ch.’ .367. And that although the. decree could not be reversed collaterally, yet it might be reviewed by infants, on their arriving' at full age, who are entitled to put in a new answer. 6 Paige, 353. . • •</p> <p>The act of Assembly could not divest the rights of the children. To show these rights, he cited 1 Dessaus.' 437; 2 Dessaus. 126; 9 Dana, 481; 3 Hen. & Munf. 399 ; 2 Har. & Gill, 34. And that the act of Assembly was against common right and Magna Charta, 1 Bay, 252; Harper, 200; Co.oke, 214; 1 Martin, 48; 2 Peters, 658; 2 Dallas, 310; 1 Yeates, 260; 5 Cowen, 346; 8 Wheat. 464 ; 9 Cowen, 664; 5 Watts & Serg. 171; 2 Barr, 24, 285, 393; 18 Wend. 14, and 2 Rawle, 373.</p> <p>We are anxious, on both sides, that the plaintiff should get a good title, and that this court would pronounce the title in controversy here a good one. The act of Assembly is a reformation of the contract. The legislature had the power to pass this act. It was no infringement of the marriage article; nor did it interfere with the rights of the children. If the husband, defendant in this case, had died, his wife would have been restored to all her original rights in .the property. • . ,</p> <p>The legislature have the power to reform.a contract, provided they do not'impair its obligation. The object, of this act'was, not to impair, but to declare what the contract was, and to establish it. He cited, Menges v. Wertman, 1 Barr, 218; Bradee v. Brownfield, 2 Watts. & Serg. 277, and Norris v. Clymer, 2 Barr, 277, which last case, he argued, was decisive of this. This is not a marriage contract, which is a bargain between those about to be united in the contract of marriage.. The children were not parties to it.</p>

<p>Error to the District Court of Alleghany' county.</p> <p>Sept. 25 .and 26. This was an action of'ejectment for 'one hundred and twenty acres of land, brought by,Francis McClintock and Catharine his wife, John Wilson and Sarah his wife, Mary Anne Boyd, George Boyd, Réed Boyd, James Boyd; and Joseph Boyd, heirs at law of Thomas Boyd, deceased, the plaintiffs in error, and plaintiffs below, against Robert Bigham, and-Hopper, the defendants in error. At the trial, it'was agreed-in open court, as there was no dispute- in. relation to the facts of the case, that the . following facts; admissions, and documents should constitute a case stated in the nature of a special verdict, to be submitted'to the court for their opinion. Thomas Boyd; by his'last will and testament, devised the property in question as follows;</p> <p>. “All my estate, reál and personal,.of what-kind.or nature soever the same maybe in said county'or'elsewhere, I give and .devise the same unto my dear wife Mary, her heirs and assigns for ever, and to will the same to whom she pleases, (on condition she re-' main my widow,) and in case of marriage,'or death without a’will, I desire my estate, real-and personal, to be divided' into thirteen shares,-and'to-be distributed in the following mánner, to wit;' I give and. devise one share of my estate to the eldest male issue of my loving daughter Martha; in case of no' male heirs, to the eldest female heir. I give and devise one share to my loving daughter .Catharine, her heirs and assigns for ever.. Sixth, I give and'devise - one share .to my loving daughter Sarah, her heirs and assigns for ever'. Seventh, I give and devise one share to my loving son James,. his heirs and assigns for ever. Eighth, I give and devise o.ne share to my loving son Robert, his heirs' and assigns for ever. Ninth, I give and devise two shares to my loving son Thomas, his heirs-and assigns for ever. Tenth, I give and devise two and one-third shares to my loving son Joseph, his heirs and assigns for ever. Eleventh, I give and devise one and one-third shares tó my loving daughter Mary, her'heirs and assigns for evér. Twelfth, I give and devise two and one-third shares to my loving son George, his heirs and assigns for ever. In cáse any of my children should die before they arrive at the age of twenty-one years, I desire their share or shares to be divided amongst the surviving heirs-at the discretion of my executors.” ■ •</p> <p>The testator died in 1803, and it was admitted that he died seised of the land in dispute, leaving a widow, Mary Boyd, and four children ; namely, Catharine, intermarried with Francis' McClintock; Sarah, intermarried with John Wilson; Mary Anne Boyd, 'and George Boyd, and three grandchildren, Reed Boyd, James Boyd, and Joseph Boyd, children of Robert-Boyd, deceased, a son of the testator. The widow entered into the possession of the land in controversy, after the decease of her husband, and continued to hold the same until the 4th day of April, 1833, when, by indenture of that day, she convéyed the same to Robert Bigham'; the defendant, his héirs and assigns for ever. On the 18th of December, 1844, Mary Boyd, the widow, made her last will and testament, in and.-by which she/ bequeathed the price of the land- sold 'to Robert Bigham, the defendant, to her children to be divided' amongst them. The said Mary Boyd remained a widow, and died -in 1845.</p> <p>The plaintiffs .contended that-Mary Boyd, the widow, took under the will of her husband, the testator, but á life-estate, with power of appointment'by her last will and testament, and as she failed to execute that power, the estate had passed by the limitations in her husband’s will, to them .as the devisees'in remainder. ■</p> <p>'The defendant contended that'she took an estate in fee-simple, and that her conveyance of the fee to him was valid.</p> <p>The court (Grier, President) was. of opinion that the widow had a -right under the will to convey by deed a fee-simple to the land in controversy, and directed judgment to be entered for the defendant. The plaintiffs thereupon sued out this writ of error, and assigned the judgment of the court below as error here.</p> <p>The question here is, whether the widow, under the will of her husband, Thomas Boyd, took any other than a life-estate, with the power of appointment by her own will; or whether she took an estate in fee-simple. They contended that she took but a life-estate, with the power of appointment by will; and consequently that she had neither right nor power to sell the land in controversy. If the widow married or died without a will, the estate is devised over. The testator, it is manifest by the words of inheritance used in the devises over, intended that the real estate should be kept in the family. Paxson v. Lefferts, 3 Rawle, 59; Caskey v. Brewer, 17 Serg. & Rawle, 441; Haines V. Witmer, 2 Yeates, 400. The subséquent devises restrained the meaning of the words “ heirs and assigns,” in the devise to the widow. They cited Coates’s Appeal, 2 Barr, 131, for the general rule in the construction of wills. They argued that the leading purpose throughout the will of Thomas Boyd was to preserve the integrity and identity of his estate. Until it reached its final destination, its distribution amongst his children, it was to remain his estate. In case of the widow’s marriage, it was to pass in all its integrity and identity. The argument is vain and futile that there was not sufficient to support and educate the children, and therefore she had to sell. This strikes at once at the meaning of the will, as conceded by themselves. She had no power to sell. This restriction made the widow safe against her own imprudence, and against her own whims and caprices, and against any disposition which she might have felt to speculate upon the proceeds of the property. She was to live upon the profits of the estate. Thorley v. Thorley, 10 East, 438. The opinion of Lord Ellenborough in that case is, what we might suppose was the reasoning and anxious purpose of the testator here.</p> <p>Where a discretionary power is given to a widow, and she does not exercise it, the will must be looked to as the guide in distributing the estate. Wood’s Estate, 1 Barr, 371-.</p> <p>Here the intention of the testator was to keep the estate as land, and it cannot be broken in upon or defeated. The words « heirs and assigns” are but the ordinary words used by every scrivener almost, whenever a fee-simple is to be carried forward and to vest somewhere. And it is settled, that these words may be restrained by subsequent devises and words. Haines D. Witmer, 2 Yeates, 400,405. ■</p> <p>■ The testator makes an absolute disposition of his estate, unless by the intervention of a will by his widow, a different direction be given to it. The power to dispose of the estate is ambulatory up to the moment of her death. Wright v. Átkyns, 19 Ves.- 299.</p> <p>Now it is admitted 'that, on her marriage, the estate goes over. Oñ a contingency, then, the testator'can make-it less than a life-estate,, but where the object is a most meritorious one, it is to be frustrated by the very words which can make it less than an'estate for life. Ide v. Ide et al., 5 Mass. 500'; § Cow.- 284. In the cases cited from Johnson’s Reports, there was an unlimited power to sell, and they do not rule this case. But the* case cited from 3 Adol. & Ell. 123, 30 Eng. Com. Law Rep. 48, is decisive of the present case. (7 Taunt. 129,) 2Eng. Com. Law Rep. 49.</p> <p>.cited Findlay v. Riddle, 3 Binn. 150, and Coates’s Appeal, 2 Barr, .131, for the best rule in the construction of wills; and to show, that in order to give effect to the general intent, the court will overlook a particular intent inconsistent therewith.</p> <p>Testator gave and devised all his estate, real and personal, to his wife Mary, her heirs and assigns for ever, to' will the same to whom she pleases; on condition she remained his widow.</p> <p>The words heirs and assigns give her an absolute estate in fee' simple, so clearly-and strongly, that it requires the most unequivocal words of restriction to make it a life-estate. The estate is riot given ' her in trust to be distributed amongst his-children, but ««to will it to whom she pleases.” On condition she1 remained his widow, which she did, she had the power of willing it to whom she pleased. The intention of testator is manifest. Why did the testator use the most appropriate and apt words to give a fee-simple absolute, and, in addition, give her the unequivocal right and power of disposing of the estate by will to whom she pleased ? If his intention were to give her life-estate only, why did he not say, to her during her' natural life, and'after her death to his'children.</p> <p>If the widow married, her estate was defeated: • but if she died without disposing of the estate by will, the testator devises it over and distributes it. It is, however, only the residue he devises over. The general intent of the testator was, that his widow should have an estate in fee. The words, ««and' in case of marriage, or death without á will,” are inconsistent with the general intent, and must give way thereto. These words were thrown into the will, to guard against a failure on her part to dispose of the residue. Where a testator devised lands to his wife, her heirs and assigns for ever, with the expression of the «< intention,” “ that she may enjoy the same during Tier life,” and'by her will “ dispose of the same as she thinks proper.” It was held, the wife took a fee. 30 Eng. Com. Law Rep. 48, 5 Mass. 505; 16 Johns. 584, 585 ; Ross v. Ross, 1 Jac. & Walk. Rep. 154, and note a ; Jac. 415, 4 Eng. Ch. Rep. 191.</p> <p>If the widow took a fee-simple, the subsequent clauses in the will, devising the estate, in case she made no will, are repugnant and therefore void. 4 Kent’s Com. 5th ed. 131,132; 2 Serg. & Rawle, 513. If the testator has given the same land, in several clauses of his will, to different persons in fee, then the devisees take concurrently. 1 Jarman on Wills, 417. The widow had a young and helpless family to support. She did dispose of the residue of the estate, of what remained in her hands by will, and thus complied with the condition in the will. She never married. Testator nowhere in his will intimates that his real estate is to be preserved, and go as such to his children.</p> <p>The widow, by her will, disposes of the price or purchase money of the land sold to.Bigham, ratifies her act, and confirms the deed of conveyance to him.</p> <p>It is an undoubted rule, that a bequest of a general power of disposal carries the absolute property wherever a limited interest is not given. 1 Watts, 390.</p> <p>Conditions, that land devised to “A. and his heirs” shall not be aliened, &c., are void. 2 Serg. & Rawle, 513, 1 Jarman, 810.</p> <p>As to the power of appointment and its execution, they referred to 1 Jarman on Wills, 628. To A. and his assigns, held to pass a fee. 2 Jarman, 180.</p> <p>This is an estate in perpetuity, the devisee having the power of disposal, and nothing can change it. 10 East, 436; 2 Roper on Wills, 297, 17 Vesey, 255.</p>

<p>A survey was made on land already covered by two adjoining surveys, and the warrantee entered, and resided on the land, clearing and cultivating a part, and paying taxes for the whole tract, for more than twenty-one years.. Held, to be properly left to the jury whether there had been an adverse possession of the entire tract, though the portion of the land in dispute had not been enclosed or cultivated more than seventeen years.</p>

In error from the District Court of Crawford county. Sept. 28. Held: had the right to use for the purpose of repairing a dam, part of the demised premises. The witness mentioned in the statement of the case, in the

<p>A, and B. purchased land from C., and .gave their joint bond and mortgage. They then partitioned, and C. agreed to proceed at law on his securities, purchase the land at'a sheriff’s sale, and reconvey to A. and B. according to their partition, receiving their separate securities for the purchase money. Before the sheriff’s sale, C. refused to perform the contract, in consequence of B.’s insolvency. It was then agreed, with the assent of B., that the sale should be made, and B.’s lot conveyed to A., who joined as security with B. in a bond to 0., on which judgment was confessed—B. having the privilege • of paying the bond and taking the land at any time within one year. The bond was given and judgment entered thereon. Prior to the sheriíf’s sale and the conveyance by C. to A., (but whether before or after the new agreement, it did not appear,) D. had purchased other land from B., on whióh the judgment to 0. was a lien. Held, that as D. did not assent to the agreement, A. having paid the amount of the judg- , ment which was assigned to him, had no equity to levy the amount paid by him out of the land purchased by D., although he agreed that, on being permitted to do so, B. or D. might redeem the land conveyed by C. to A., according to the original agreement, within six months.. .</p> <p>A principal could not demand execution of a judgment against his own vendees in ease of the land held by himself, and his surety paying the money, stands ill the same position as to such vendees.</p>

<p>In error from the District Court of Crawford" county.</p> <p>Sept. 29. The defendant in error issued a sci. fa. to revive a judgment in ejectment, entered generally against Fox, without specification of any amount, which judgment was to enforce the payment of purchase money due under articles of agreement, that debt having been assigned to Benedict. The instrument by which it was assigned was a notice put up at á sheriff’s" sale of the land to Stratton under a judgment against Fox, stating the amount of the purchase money “ assigned to Benedict” claimed by the plaintiff below as due on his judgment, and that-no deed had been made, or would be made until payment of this amount, which notice was signed by Foster. The admission of this in evidence constitutes the first bill of exceptions.</p> <p>The second was to. the exclusion of so much of the testimony of a witness, who proved the articles between Foster and Galbraith for the purchase and sale of certain real estate, as consisted of statements of the purport of the agreement which-had been written by himself, and of what he considered, from the expressions of the parties, was the understanding and agreement.</p> <p>By this article,'Foster agreed to convey to Galbraith certain land, 'in consideration, among other things, of Galbraith’s assuming the payment of the judgment now in question. Some other slight evidence was also given to show that Foster had agreed to accept Galbraith’s agreement, in payment of his judgment against Fox. Shortly after this, Galbraith had left the country, and had not been heard from.</p> <p>After the evidence was closed, and one of the counsel-had addressed the jury, the defendants asked leave to add a plea of nul tiel record. The plea on the record was -not guilty, with leave to add, alter, or plead specially.- The objection was, that the application was too late. The court was of opinion .the proposed plea would defeat the object of the act of 1806. This cause having been once tried on its merits, and the-judgment reversed in the Supreme Court, and now again tried on the same pleas, and the object of .the present plea being merely to withdraw the case from the jury, on account of a mis-recital in the sci.fa.; such a defect was waived by going to the trial on the merits. The motion was therefore refused.</p> <p>The court, (Thompson, P. J.,) after summing up the evidence, left it to the jury to say whether Foster had 'agreed to accept'the. agreement with Galbraith, in satisfaction of the judgment against Fox. ' The points submitted by defendant are not stated in the paper-book. The answers are given in the opinion of the court here; ' - • •</p> <p>To the second point, the judge said, the transfer from Foster to ■Benedict passed the securities, and therefore the'judgment passed.</p> <p>The errors assigned were, 1. and 2. The ruling as to the evidence ; 3. The answers to defendant’s points; 4. In refusing leave to amend the-pleadings. ‘</p> <p>The notice was not evidence of the assignment; it contained a mere recital of the fact, which- was not evidence against a stranger. It was intended, simply, to show the amount of unpaid purchase money. The understanding of the witness, or what the agreement was from the'expressions of the parties, wras evidence. Cotton .v. ITuidekoper, 2 Penna; Rep. .149. The plea of nul tiel record is often essential to justice, and clearly the amendment was within the act of' 1806. Maus v. Mans, 5 Watts, 315 ; Farmers v. Israel, 6 Serg. & Rawle, 294; Wilson v. Hamilton, 4 Serg. & Rawle, 238..</p> <p>The agreement was in writing, and in evidence its purport was to be gathered from itself. After the witnesses have been dismissed, it is too late to add a plea requiring evidence to repel it. Ridgely v. Dobson,. 3 Watts & Serg. 118.</p>

' In error from the Common Pleas of Clarion county. Sept. 29. The plaintiff in this ejectment showed title in Mitlen, in 1835, a judgment against him entered on the 3lst of July, 1838, in favour of the present plaintiff, and a sheriff’s deed, dated February 23, 1841, acknowledged on the 26thi.

<p>. Appeal from the Common Pleas of Clarion county.</p> <p>Sept. 30. Case stated on the distribution of the proceeds of a sheriff’s sale. A mechanics’ lien was filed by the plaintiffs against Newell, the defendant in this execution, within six months after the work done, and materials furnished between March 1st and July 1st, 1842. Under this, the.sheriff’s sale was made. At the time the work ■was done, (the.particular date is not mentioned,) Newell .had purchased the land by articles of agreement with Morrell, to whom, on the 1st of April, he. had given judgment notes for the purchase money. On the 29th of June, Morrell procured a deed from the holder of the legal-title, to Newell. On the 16th of July, judgment was entered on these notes, which’judgment was assigned to the defendant below.</p> <p>The court below gave judgment for the plaintiffs.</p> <p>By the act of 1840, the purchaser under a mechanics’ lien has no greater estate than th'e defendant at the time the building was commenced.. Of course a lien is not acquired oh any greater estate. The defendant, had but an equitable estate on which the. lien attached. Had the judgment been entered simultaneously with the conveyance of the 'legal title, it would have..had priority to all other liens against the defendant’s land; the effect of the'delay was merely to postpone it .to such liens as were intermediate between it and the conveyance.</p> <p>The purchaser takes subject to the lien -for the unpaid purchase money, for the act confines - the estate sold, to that owned at the commencement of the building. Evans v. Montgomery, 4 Watts and Serg. 218.; O’Conner v. Warner, 4 Watts & Serg. 223; Kauffelt v.- Bower, 7 Serg. & Rawle, 64; Bear v. Whisler, 7 Watts, 147; Semple v. Burd, 7 Serg. & Rawle, 286. But at all .events it is settled, that a judgment for the purchase money entered after a conveyance of the legal title, has no priority to liens on the previous equitable estate. Brown v. McCormick, 6 Watts, 60; • ' ' ■ ' ■ • '</p>

<p>In error from the Common Pleas of Warren county.</p> <p>Sept. 30. The facts of this case are stated in the opinion of this court.. It may be proper to add, that the certificate of the surveyor-general was, “ that from an examination of the books of the land-office, it does not appear that patents have issued by the Commonwealth, for in-lots in the town of. Warren, Nos. 486 and 487, &c., sold by the commissioners of sales to Ephraim Morrison, two-thirds of the purchase money not being paid,” and was under the seal of the land-office. • The evidence of Judge Hackney having been commissioner, was parol testimony that he acted in that capacity.</p> <p>The letter of the secretary was dated June 5,1826, directed to the commissioners of Warren, enclosing a list of balances of purchase money remaining due on in and out-lots in the town of Warren, and purported to be written in pursuance of an act of 18th February, 1824, which directs such a list to be transmitted, and appropriates part of the sums due to the erection of a new court-house. The list contained E. Morrison’s name as purchaser of No. 486. Price $2 50—amount paid 83J cents. The court below admitted this document to show the amount of the purchase money due, but rejected it as evidence of title in Morrison.</p> <p>The rejection of evidence constituted the three errors assigned.</p> <p>The title of the plaintiff below was imperfect to lots Nos. 486 and 487, part of the property conveyed to the defendant. The book was offered as an official document or record to show title in Morrison. The certificate from the landroffice was offered to show that no patent had ever issued for these lots, two-thirds of the purchase money, as required by the act of Assembly, never having been paid. The title, therefore, was never out of the Commonwealth. Both the book and certificate were clearly evidence for the purpose for which they were offered. They cited 1 Stark. Evid. 208; Leazure v. Hillegas, 7 Serg. & Pi awl e, 313; Lindsay v. Scroggs, 2 Rawle, 141; Galbraith v. Elder, 8 Watts, 81; Act of 31st of March, 1823, Pur. Dig., 6th ed. 399, to show when books of public officers are evidence.</p> <p>The certificate is of a negative character. It does not say that a patent had not issued, but “ that it did not appear that a patent had issued.” It was not therefore evidence that one had not issued. The bonds required by the act and given for the purchase money should have been produced on the trial. They were the property of the Commonwealth, and would have shown what amount of purchase money, if any, had been paid.</p> <p>The inference clearly was that patents had issued. Neither the certificate nor the book of sales were the best evidence. They should have proved that John Andrews and Judge Hackney were commissioners. A certificate of their appointment by the governor would have been the proper evidence. There is no law which makes a letter from one of the officers of the land-office evidence. It must be a certificate under the seal of the proper officer, which' this was not.</p>

In error-from the'Common Pleas of Westmoreland county., Oci.. 23’., This was an action of ejectment by the holder of the legal title,-to enforce pérformanc-e of articles, for the purchase of the land by -defendaiitj by means of a conditional verdict. The. defence rested on .two points : that under the articles they were, entitled to a Conveyance, and of consequence this action could not be maintained;-and that'at the trial there were'encumbrances on 'the property.

In error from the Common Pleas of Westmoreland county. Oct. 24. The defendant in error brought an action of account render, and declared against Peters & Ottinger as bailiffs and receivers to the common advantage of plaintiff and defendants, Sprowl, Weaver, and three others, who were.impleaded’but not served with process. On the trial, the plaintiff offered the deposition of Weaver, one of the defendants, which'was objected to, but admitted by the court.

In error from the Common Pleas of Fayette county. Oct. 26. Clement executed an instrument under seal, dated February 22, 1842, promising to pay to the plaintiff below, one day after date, $203 67, with a power of attorney to confess judgment, which was entered M'arch 22d. The cause was called for trial on a sci.fa., to revive the judgment, the pleas to which were payment, release, and nul tiel record, and an affidavit of defence of a discharge as a bankrupt, when the…

<p>A sealed instrument by a father, in consideration of natural love, &c.,‘ ordering his heirs, executors, &c., to pay to his daughter, her heirs, &c., at his decease, $'600, which was to carry interest from the date of the instrument, and desiring that the same might be recorded according to law, does not authorize a judgment to be entered against the obligor.</p> <p>A warrant to confess judgment should 'contain the grant of an authority clearly given, and the designation of a person by whom it Is to be exercised, either by, name or description. '</p>

In error from the Common Pleas of Fayette county. Oct. 26. On the 3d of April, 1845, Graham made complaint before two justices, setting forth that on the 1st of April, 1840, he was lawfully seised and possessed of'a tract of land, &c., at which time he leased the same to the defendant, “ for one year, for two hundred dollars, and leased the same from year to year, which term .was fully ended on the 1st of April;” -that he was desirous to repossess himself—demand of…

In error from the Common Pleas of Fayette county. Oct. 26. The facts of this case are fully stated in the opinion of Mr. Justice Burnside. relied on the want of any objection at the proper time.

In error from the Quarter Sessions of Fayette county. Oct. 27. On the 4th of June, 1844, plaintiff in error was found guilty, on an indictment for an assault and battery. On the 1st of November, he was pardoned by the Governor. On the 2d of December, this pardon was filed in the court. On the 4th of June, 1845, the defendant.was sentenced to pay the costs of prosecution. This sentence, after pardon, was the error assigned.

<p>In an action of dower, hearsay declarations of a member of the family to the fact of marriage are inadmissible, when there are living witnesses to the fact of cohabitation as man and wife.</p> <p>The execution,-by executors or administrators, of a contract of sale of the realty made by the decedent, does not bar the widow’s dower.</p>

<p>Where a lease contained a stipulation for a rent in kind, without specification of the day of payment, it is payable at the expiration of the year, and an assignment of the rent by an order on the tenant, accepted by him, will not pass the right to the rent, as against the purchaser from the sheriff’s vendee of the landlord’s estate under a judgment prior to the lease.</p>

Oct. 28. The facts of this ca_se are principally stated in the opinion of the court, by his honour Coulter, ’J., to which a few facts are Here added. . Upon a reference to auditors of the accounts of the administrators óf McFarland, several exceptions were made thereto, and to the report of the auditors.

Appeal-from the Common Pleas of Green county. Oct. 29. This was an appeal from the decree of distribution of the proceeds of a sheriff’s sale of personal property, in which.the point raised was whether the earlier execution had lost its priority by reason of the conduct of the plaintiff. On the 5th of June, 1844, judgment was confessed against Worthington and Long, at the suit of Lantz.

<p>In error from the Common Pleas of Fayette county.</p> <p>Oct. 29. A'few facts in addition to those stated by his honour, (Burnside, J.,) are all that it is deemed proper to mention'here.</p> <p>The articles between Gilleland and Grove were dated in the Feb. preceding, the date of the deed to Gilleland. -</p> <p>In the petition of the plaintiff below,.for a supersedeas of the commission, it is .stated.,' that the trustees never acted, and that since February, 1842, he had.been a reformed and sober man; in proof of which, he produced.-certificates of divers .persons. ' - •</p> <p>The abstract of title, referred to by the learned judge as .having been file.d in the causes mentioned t-he articles between Gilleland and Grove; the fact of payment of the purchase money and possession By Grove; the judgment against him, and the sheriff’s sale thereunder .to the defendant’s landlord.</p> <p>The deposition of Boyd, referred to by the judge, stated the settlement to have been in the fall of 1840; that Grove proved “ receipts and book accounts which were made for the payment of the land the rents were not estimated—and “ that the settlement was agreeable to both parties.”</p> <p>The rejection of the evidence, and the charge of the court, set out at length in the opinion of the court here,- were the errors assigned.</p> <p>The relevancy and importance of the evidence offered cannot be.questioned. Fonb. Eq. ch. 3, sec. 4, p. 163; 2 Verm 150; 12 Wend. 57; 13 Serg. &Rawle, 304, 306; 7 Watts, 163,168; 2 Barr, 107. As to the objection, that it was not rebutting, it is plainly a mistake. The plaintiff had given rebutting'evidence to destroy the effect of our evidence, showing a regularly deduced title. To destroy the effect of this rebutting evidence, and to sustain an originally proved title, the evidence offered 'was direct, and, under the authorities cited above, conclusive. 2 McC. 161. The rale of court does not require a specification of rebutting facts. How is it possible for a defendant to foresee more than the evidence in chief which he means to rely on ? He cannot foretell by what means that may be affected, and, of course, he cannot foreknow how he will meet the new case of the plaintiff.</p>

In error from the Common Pleas of Washington county. Oct. 29. Caldwell having been indicted for forgery, entered into a recognisance with Miller in $2500, conditioned for his appearance at the Quarter Sessions. On the same day, wdth the acknowledgment of this recognisance, Caldwell assigned to Miller all his interest in the principal of two judgments of said Caldwell against Summers, for $1313 62 and $1309 respectively, reserving to the assignor the accruing interest thereon.

In error from the Common Pleas of Fayette county. Oct. 29. The paper-book stated that Morris, having been elected sheriff of Fayette county, entered into a recognisance, and also gave bond in the sum of $10,000, faithfully to discharge the duties of his office, with M. Crow and five others as sureties. This recognisance was entered of record on the 14th January, 1842.

Oct 30. The case was submitted to the court below on the following facts. On August 3d, 1842, and 28th of June, 1845, judgments were entered against Wilson. On the 25th of January, 1839, the defendant, who was a brigade inspector in the militia, settled his accounts in the office of the auditor-general, on which there was a balance due the state. No copy of the account had been transmitted to the prothonotary of the county.

<p>Where there has been an omission from a -written contract, and one of the parties declines executing it on account of such omission, and the other induces him to execute, under a promise that the omitted items shall constitute a part of the written agreement, which was sealed ; an action lies on the contract, as if amended according to the parol agreement.</p> <p>The pleadings in such case should set out the facts, and aver the fraud in procuring the execution of the agreement by force of the parol agreement.</p>

Oct. 1. In an action of debt on a note, the defence was a breach of warranty of a horse sold by defendant in error to the plaintiff in error. It was proved that the horse was warranted sound excepting in one particular, and that he was in fact otherwise unsound.

<p>In error from the Common Pleas of Erie county.</p> <p>Oct. 1. This was an action on two notes dated the 26th and 28th February, respectively, in the following form: «Due Conrad Zinn, 17§ bushels of wheat at $1 per bushel, payable at pur mill in Girard, in twelve days from date.” The other was for $10, at one month, payable in wheat or corn, the former at $1, and the latter at 50 cents per bushel. The plea was payment.</p> <p>Defendant then gave in evidence that he directed seventeen or eighteen bushels of wheat to be put away in a bin in the mill to meet the first note, which was done early in March; and that ten and a half bushels had been placed in barrels to meet another note about the 1st of April. It was put away in small quantities as fast as toll ■was taken at the mill. A witness for the plaintiff stated the $10 note had been left with him to demand the grain, and on the day it fell due he had gone to the mill, and was told the grain was ready. He said he had orders from plaintiff tó have it measured out and put in a box by itself. Plaintiff replied he had not a box to put it in. The wheat in the bin was shown to and examined by the witness, and he supposed there was not more than fifteen or sixteen bushels. All this grain was burned on the 8th of April.</p> <p>The plaintiff’s points were,</p> <p>1. Actual payment or its equivalent is essential to bar the action. Merely having had sufficient grain in the mill on the days of payment without actual delivery is not such an equivalent.</p> <p>2. Tender is not payment, and cannot be used under the plea.</p> <p>3. That the proof of having the grain was insufficient, unless the defendant showed a readiness to deliver until the commencement of the action.</p> <p>4. That if on the demand made, defendant refused to measure the grain out, but showed some grain in a box as the grain set apart for the note, it is such a denial of the grain alleged to have been in the barrels as defeats it.</p> <p>The charge of the court was as hollows :</p> <p>« If the defendants set apart at their mill a sufficient amount of grain, mentioned in the notes for the payment of them, and had it so set apart on the days and times on which they fell due, and the grain remained so set-apart until the mill was burnt, it is plaintiff’s loss—the grain was the plaintiff’s, and the notes were paid, and he cannot recover on them. If defendants had the grain ready, if it had been demanded, and so set apart, and did not keep it, but used it, still plaintiff could not recover, unless he has demanded it, and been refused. Of this, however, we have no evidence.”</p> <p>The errors assigned were, that no answers were given' to the plaintiff’s four points, and the charge of the judge.</p> <p>A previous demand was unnecessary. 2 Penna. Rep. 67; 7 Watts, 380. Was there evidence of payment ? It is admitted a tender sufficient for this purpose may be made in the absence of the party, but the party intending to avail himself of it must on the day appointed turn out the article and measure it, or do some act manifesting his design to transfer the title. Story on Contracts, secs. 503, 504, 512. The mere retention of a thing previously in his possession is not sufficient. Neither trover nor replevin could have been maintained under this evidence. Nor did this evidence agree with the plea, as appears from the cases already cited. If the plea had been in regular form, the evidence would not have sustained an averment of “ always ready,” which is essential.</p> <p>A contract for the delivery of specific articles of property to another, at a cer.tain time and place, in discharge of a previous debt, is performed, and the debt satisfied, by a tender and delivery of the property at the time and place, although the payee does not attend to receive the property. And no action on the contract can afterwards be maintained against the debtor. Case v. Green, 5 Watts, 262.</p>

In error from the Common Pleas'of Erie county. Oct. 1. The defendant in error, administrator of Fross,'brought this action to recover the amount bid by defendant at a sale of the decedent’s real estate for payment'of debts, and on the trial proved the order of sale and confirmation by the Orphans’ Court, and gave ■parol testimony that defendant bid for the land. The defendant gave evidence that the title was in a stranger.

<p>The occupation of an easement in land adjacent, which has been conveyed without a reservation, being inconsistent y^ith. the grant, is notice to a purchaser from the grantee in such deed, of a jrnrol reservation of the easement. *</p> <p>A., being the owner of land on which a mill was erected, and of the right of diverting the water into the appurtenant mill-race on the land of B., who had an equitable title, derived under the will of a common ancestor which made the race appurtenant to the mill, acquired the legal title to the whole tract, and conveyed the legal title of the premises on which the race and dam stood to B., clear of encumbrances, with covenants of seisin and without reservation or mention of the mill-race; which deed was recorded. Held, that a purchaser from B. had notice of a parol reservation of the right to the race, from the fact of A.’s subsequent occupation of the mill, and user of the race.</p>

In error from the Common Pleas of Erie county. Oct. 2. The plaintiffs in ejectment claimed title by a sheriff’s sale under a judgment against Averill in favour of the Bank of the United States, of which they were trustees, which was entered June 1, 1841, and a sheriff’s deed dated February 10, 1842. The defendant’s title was a conveyance from Averill in considera-* tion of $2000, dated May 28, 1840, and recorded December 31.

<p>In error from the Common Pleas of Erie county.</p> <p>Oct. 5. Case stated, with leave to take a writ of error.</p> <p>In April, 1842, Cadwell and another, to wdiose use this action was brought, obtained an award against Bates and Holmes, under the compulsory arbitration law. On the 23d, execution was issued and a levy made. On the 26th, Bates and Holmes, 'and the present de-fendant, executed a bond to the sheriff, conditioned that Bates and Holmes should deliver the property levied on to the sheriff on the 30th of April, with powers of attorney to confess judgments. The property was not delivered, and the present question is the liability of the surety. On the 6th of May, exceptions were filed to the award against Bates and Holmes on which the execution had issued, and it was agreed by the attorneys of the parties to that proceeding, ■that the matter should be referred back to the .same arbitrators, the lien of the judgment to continue, and att securities to remain hound. On the 20th, it was agreed the award should remain unaltered, and Bates and Holmes have three months’ stay of execution.</p> <p>Bates, in a deposition, which was part of the case stated, proved that when the award was referred back, he offered to make a partial payment on condition, among other things, of the stay. The plaintiff objected, that it would release his security, (the defendant,) as his attorney-informed him. Bates refusing to procure other security, plaintiff accepted the payment and agreed to give the stay.</p> <p>A judgment had been entered on the bond to the sheriff, which was opened, and the question submitted, whether, under the circumstances, Hubbard was discharged. The court below (Church, P. J.) gave judgment for the defendant for the following reasons :</p> <p>“By the sheriff’s levy he became liable to the plaintiffs in the fi. fa. This defendant became' surety to the sheriff for the delivery to him by defendants in that writ, of the property levied on at a specified time and place. The property was not delivered, and defendant was thereupon liable in law to the sheriff, to the amount of this bond, but in equity he was only responsible for the amount of the sheriff’s liability. The lien of the sheriff by virtue of the levy con-tinned, notwithstanding this failure to deliver the property. If the defendants in that case had paid or satisfied the plaintiff’s claim in any way, it would have released the sheriff from all liability, and with him his surety. So would any arrangement to which the sheriff was not a party assenting, whereby the rights of the plaintiffs on this judgment were suspended, release the sheriff, and releasing him, the surety was released also from any further liability. For the sheriff’s right to proceed being thus suspended without the consent of this surety, could not again be renewed or revived against him without his assent. This was never given. It may be said, that by referring back the case to the arbitrators, the old judgment was opened or suspended at least, and the sheriff, most certainly, could not proceed. If this was not so, the staying the execution had that effect clearly. We may, in connection with this, also observe, that the defendant does not obligate himself to deliver the property, but is security for the defendants in the fi.fa., that they will deliver it. We think, then, the law, as well as the equity of this case stated, is in favour of defendant. Therefore, judgment for defendant.”</p> <p>The defendant was not a surety to the plaintiff in the cause in which the delay was given, but to the sheriff. He had voluntarily interfered and prevented satisfaction being obtained by execution, and in that position is not favoured. Burns v. Huntingdon, 1 Penna. Rep. 395; Pott v. Nathans, 1 Watts & Serg. 155; Armstrong’s Appeal, 5 Watts & Serg. 352. We deny that the sheriff was discharged by the delay; there was sufficient time intervening for a sale, and the plaintiffs might have rested on that alone. At all events the time was not given until the defendant’s bond was forfeited, and the sheriff was in no way bound to pursue the property levied on. Nor could the defendant have required a proceeding on the original judgment by the plaintiff, which right is the origin of the rule applied in this case. As to the mistaken supposition by the plaintiff, that his acts would discharge Hubbard, that is perfectly immaterial. Levy v. Bank of the United States, 4 Dali. 234.</p> <p>The defendant was a surety for one who was discharged by the act of the plaintiff. Could the sheriff recover without showing he had paid, or was liable to pay, the plaintiffs in the execution ? If not, as he certainly could not, can an equitable owner acquire any higher or better rights through him who is the plaintiff on the record ? It is well settled that the plaintiff’s right of action is the limit of a recovery.</p>

In error from the Common Pleas of Warren county. Oct. 5. The facts of the case are fully stated in the opinion of the court here. cited Hugh, on Ins. 265; 7 Watts & Serg. 348 ; Ellis on In's. 2; Story on Agency, sec. 132 ; 4 Rawle, 294; 8 Watts, 392. The agency was limited to receive applications and notes, (5 Watts & Serg. 548,) not to make agreements or statements. The defendant was bound to know where the company insured. 2 Penna. Rep. 470.

<p>In error from the Common Pleas of Mercer county.</p> <p>Oct. 6. The plaintiffs were the heirs of Gray, and brought ejectment for a tract of land drawn by him in the donation district. The defendants gave in evidence two titles; one under a sale for taxes, which was a defence as to four-fifths of the land, but which it is immaterial to mention further, as the court decided there was evidence of another outstanding title which entirely defeated the plaintiff’s claim. The records of Northumberland county showed, that in 1804, an action of debt for ¿6540 was commenced, a declaration and pleas filed, and in 1806 judgment entered against Gray’s administrators, but the amount wras not mentioned. In the same year a sci. fa. to revive issued, pleas were filed, and judgment entered as before. In 1807, a fi. fa. issued, and two tracts, on which persons were residing, were levied on and condemned. In 1808, a vend. ex. issued, which, with the levy, was set aside, by agreement between the administrators, defendants therein, and the attorney of the plaintiffs, and nulla bona returned “ to found a test. fi. fa. to Crawford (Mercer) county, to levy on a tract of donation lands patented to Gray in his lifetime,” and it was agreed the sheriff might sell without an inquest, the parties having agreed on a price to be credited on the judgment, which was to stand for the balance. A test. fi. fa. issued on this judgment to Mercer county, endorsed « debt ¿6540, real ¿6270, interest,. 28th of March, 1798,” with a direction to levy on the lot now in dispute.' In 1810, a test. vend. ex. and an alias issued; the latter was returned, << sold, &c., to P. Farrelly, for the heirs of G. Bickham, for $100, &c.” ' On the 30th of October, 1812, the sheriff acknowledged a deed to Lewis Neill et al., in trust for the heirs of G. Bickham. On the 21st of May, 1813, Neill et al., the sheriff’s grantees, trustees for the heirs of G. Bickham, by Farrelly their attorney,, presented a petition to the Common Pleas of Mercer county, praying that the sheriff might acknowledge another deed to them in lieu of one which was lost. Annexed was the affidavit of Farrelly, that the deed from the sheriff to Neill had been transmitted to the grantees and sent back for the correction of an error, and that it had been burned or lost. The court ordered a new deed to be acknowledged,which was done by the sheriff then in office, in November, 1813.</p> <p>The points of the plaintiffs and the answers of the court will be found in the opinion delivered in this court.</p> <p>contended that the judgment from Northumberland county, never having been liquidated or signed by the proper officer, was not such a judgment as would sustain a fi.fa. or other writ, and that the sci.fa. issued on such a judgment, and a judgment obtained thereon, would be in no better situation than the original judgment, and that a sale founded thereon would not confer a legal title.</p> <p>That an ex parte affidavit, made by an attorney, proving the loss of a sheriff’s deed, and asking the court to direct the successor of the sheriff to supply the place of the lost deed, could not be read in evidence on the trial of a cause between strangers, to prove an outstanding title, and that P. Farrelly’s deposition was of that character.</p> <p>That an agreement could not be made by administrators, with judgment creditors, for the sale of real estate of the decedent for the payment of debts, and all proceedings based thereon must be illegal, they having no authority over real estate other than that given them by the Orphans’ Court. That as the return of the sheriff to the test, vend. ex. from Northumberland county, shows the land was sold to P. Farrelly, in trust for the heirs of George Bickham, deceased, the record of the acknowledgment of a deed by the sheriff to Lewis Neill and others, trustees for said heirs, (no order having been made by the court directing it,) would not prove such an outstanding title as would defeat the plaintiff’s 'recovery in. this case* 7 Watts & Serg. 403.</p>

<p>In error from the Common Pleas of Mercer county.</p> <p>Oct. 6. Nancy Hamilton, defendant in error, brought ejectment in December Term, 1844, for certain lands, of which her father, Hugh Hamilton, died seised, leaving issue four sons, of whom the defendant below was one, and four daughters, one of whom was the plaintiff. On the trial, she further proved, that until a year before suit was brought, she and the widow of her father resided on the premises; and gave in evidence deeds for the interest of five of the heirs of Hugh Hamilton, deceased. The defendant’s title offered in evidence was, an award of arbitrators against the administrator of Hugh Hamilton, filed on the 2d December, 1823; a ft. fa. and vend, ex., with a sheriff’s deed, acknowledged April, 1825. This was objected to, and rejected, because there was no judgment on the award. The defendant then offered to prove, that after the sale, defendant entered, and by improvements increased the value of the land eight-fold, plaintiff living on the land in sight of the improvements, and making no objection or claim to the property; that he had retained possession ever since; that plaintiff knew of the intended sale, and made no objections; that after the sale, the plaintiff, and those heirs of Hugh Hamilton whose title she had, agreed that the surplus purchase money at the sheriff’s sale should be applied to the support of the widow of their father and the plaintiff, which agreement was performed, and part of the money was received by the plaintiff, with a knowledge of the circumstances. That while plaintiff lived on the land she leased it of defendant, during which time defendant mainly contributed to the support of herself and her mother. That two years since, plaintiff demanded a support for the mother, and threatened to make complaint to compel such support on account of his ownership of the property, when defendant gave plaintiff his note for $30, which was still retained, and had since furnished plaintiff and her mother with -wood and provisions for their support. The court rejected this evidence, which was offered in connection with the sheriff’s deed : and this was the error assigned.</p> <p>argued that the sale was confirmed by the subsequent acts of the parties, receiving the purchase money, &c.; 2 Penna. Rep. 19; 3 Rawle, 496; and that estoppels are favoured when promoting equity. 17 Serg. & Rawle, 364; 4 Yeates, 35.</p> <p>1 Rawle, 163; Folk v. Beidelman, 6 Watts, 339.</p>

In error from the Common Pleas of Mercer county. Oct. 7. Plaintiff brought an action of debt on a note before a justice, where the defence was, that the consideration of the note was a worthless machine. On appeal, the pleas were payment and set-off.

<p>In error from the District Court of Mercer county.</p> <p>Oct.' 8. The declaration was for money paid, laid out and expended for the use of the defendant. There was a reference to arbitrators, and an appeal by the defendant. On the trial, the plaintiff gave evidence of two payments for the use of the defendant. It was proved by the .arbitrators that one of these items' -was not claimed before them. ■ .</p> <p>The court (Thompson, P. J.) was of opinion that a plaintiff might vary or increase his demand in this way, after an appeal.</p> <p>This was assigned for error.</p> <p>cited 5 Watts & Serg. 33.</p> <p>act 1836, sec. 38.</p>

In, error from the Common Pleas of Beaver county. Oct. 8. ’ Debt on bond in’which the writ was served on' Porter; and -two others. Porter having pleaded his discharge as a bankrupt,’ the plaintiff entered a nolle prosequi as to.’him. -On the trial, the defendants-called Porter as a witness ; the. plaintiff objected-that he was. entitled to any surplus.remaining after payment of his debts.

<p>In error from the Common Pleas of Beaver county.</p> <p>. Oct. 8. The plaintiffs in this ejectment claimed title to one-half -"of a donation tract a.s acquired by the statute- of limitations under an entry-by Reigle,-their father, in 1806, and possession continued for upwards of twenty-one years. .'The defendants had the title of the original owner of the tract, and obtained possession by agreement with the. widow of Reigle and her second husband in 1833. The question was, whether there had been an adverse possession by Reigle, who with one Shingledecker entered on the whole tract in 1806, and occupied it jointly until 1815 or 1816, when a partition was made. After Reigle had been in possession some time, the evidence of the plaintiff showed that he claimed the land as his own, and paid the taxes until his death, in 1825, when his widow continued in possession until the sale by her to the defendant, mentioned above. To show the character of the possession, plaintiffs read the deposition of Shingledecker, who stated, “We intended to leave when the real owner, with a good deed, that is, the old soldier, who had a good deed, should come for it, but not till then. We settled it to hold it until a better owner came for it, and then to give it up,”</p> <p>A witness who had purchased Shingledecker’s moiety stated that Reigle had endeavoured to find the real owner, and obtain compensation for his improvements, and that both Reigle and Shingledecker had told' him they settled the land «to buy it, or get pay for the improvements.” Another witness stated he had known Reigle since 1810; that infrequent conversations, Reigle totally disclaimed holding any interest in the land whatever, and said, if the owner came and gave him any thing as a compensation for his improvements it would be well, if not, he would have to move off the land. This witness was in the same situation as Reigle, the owners of neither tract being then known. Another witness stated that he was employed by Reigle a few years before his death, to make rails, and was refused permission to use the green timber, Reigle giving as a reason that the land was not his own, and he might be put to trouble • by the owner for destroying' the timber, and that he had frequently heard 'Reigle say he wished to purchase the land from the owner when he came.</p> <p>The defendant’s points were, 1. If R., when he entered, did so intending to hold it only until the owner should come, and then give it up, and so continued until 1816, (the time of the partition,) the plaintiff could not recover, the possession having been changed in 1834.</p> <p>2. If the evidence of the two witnesses lastly stated above was true, the plaintiffs could not recover.</p> <p>On the first point, the court (Bbedin, P. J.) having stated the requisites to a possession to entitle a party to the benefit of the statute, instructed the jury, that to prevent the party availing himself of the statute of limitations, the evidence must be such as would amount to an agreement to hold under, and not against the title of defendants, or subject'to the control of the..person having such'title, so that’it would be a fraud on that title,.^afterwards the statute of limitations was set up. The Second ppljit was answered in the negative. . •</p> <p>The errors assigned were: In so instructing the jury as to lead them to.believe that an express agreement with the owner himself, or some one on his behalf, to hold under him, was necessary, and consequently that declarations, on entering and .while in possession, of an intention to hold under, or subject to" an unknown owner, were not sufficient to take the case but of the statpte ; and in the answer to the -second point.</p> <p>The charge of the court below led ..the jury to the conclusion that there must have been an agreement between Reigle and the heirs of Young, to, prevent the running of the statute of limitations. But there is a distinction between the evidence to change a possession already adverse to one that is amicable, and that which proves the original entry was friendly, or subject to the owner. In the former’ case, nothing short of an agreement to hold under, or what is tantamount to an acknowledgment of title, will prevail; but in the latter, the character of the entry must be ascertained from all the evidence,' and the previous and accompanying declarations may be relied on by the jury.</p> <p>This was the case of axi-unknown owner,'and it is impossible there cou-ld have been any agreement with him at the time of the entry. Hence there could be no other evidence of .the quo animo of the entry than the declarations of Reigle to third persons. Therefore the question results in this—can there be an entry under, or subject to an unknown owner? That such a possession can be taken, is established by the case of Jones v. Porter, 3 Penna. Rep. 135 ; Criswell v. Altemiis, 7 Watts, 581 ;• Sailor v. Hertzogg, 2 Barr, 184,185. The cases' cited in the charge of the' court were those of'possession notoriously adverse; attempted to be changed into an opposite character. 4 Watts &Serg.34; Farmer’s Bank w.Wilson, 10 Watts, 261. ’ Asettler entering to make a settlement by virtue of the provisions of the act of 1792, though he mistakes and enters on warranted land', or enters supposing the. warrant forfeited, enters to improve and make title to himself. Not so with ’one. who enters on a drawn donation tract, knowing it to be such. He cannot hope to obtain title by settlement—nothing short of twenty-one years’ possession- can avail. Therefore the fact that an entry was or was not made to obtain title by settlement, under the act of 1792, has a material bearing on the question of the quo animo of the entry. The case of Bank v. Wilson is that of a settler under the act of 1792. Hence the strong, language used in that decision is not applicable to the case of a donation tract. But the court instead of submitting the queslion of intention in the entry to the jury, shut the door to that inquiry, by saying that nothing short of an agreement would prevent the operation of the statute of limitations.</p>

<p>Where an accommodation endorsement, with several prior endorsers, was given by a firm with assent of all the members, on a note which was discounted by the plaintiff; with knowledge of the facts; and the firm’s name, with assent of all the members, was endorsed on several successive notes, given in renewal, on which changes and omissions were occasionally made in the names of some of the prior endorsers; the members of the firm are all liable on an endorsement by one of their members on a note subsequently given in renewal, from which one of the previous endorsers was omitted, which had been on the previous notes, without proof of their assent to the particular endorsement under such a change of circumstances.</p> <p>Want of notice of the dissolution will charge the firm on a subsequent accommodation endorsement, the holder having had previous dealings with the firm, in the same manner as if the firm continued to exist.</p> <p>Surviving partner has implied right to continue an accommodation endorsement on notes in renewal of a former note. Per Rogers, J.</p>

<p>An indictment charged that A. and B., on the 1st day of March, 1847, at the city of Pittsburgh, county of Alleghany, did falsely conspire to utter certain forged notes of a foreign bank, in the form of good notes of that bank, -with the intent, that said forged notes should be uttered to the citizens of this Commonwealth as good notes, and with intent to cheat the foreign bank and divers citizens of this Commonwealth. Held,</p> <p>1. That in an indictment for such an offence, no overt act need be set forth.</p> <p>2. That in this indictment, time and place are well laid to give the court jurisdiction.</p> <p>3. That the words charging the intent to cheat the foreign bank are surplusage.</p> <p>4. That the offimee charged in this indictment, is a species of the aimm falsi, and is punishable by imprisonment at hard labour, under sect. 4, act of 1790.</p> <p>6. That it is immaterial, as regards the offence, whether the foreign bank be incorporated or not.</p>

<p>Where one entered and marked the lines of a tract of one hundred acres, and by his labour at different times completed a small house, in which he had the necessary furniture and utensils for his subsistence, cleared two acres, and cultivated a quarter of an acre with’the intention of making the land his„permanent place of abode, and of using the water-power thereon; thoughhe be absent from the place, at intervals, during the larger portion of his time, (not having a family elsewhere,) it was properly left to the jury to say whether there had been at any time an abandonment of his original intention; otherwise he had acquired a title by settlement under the act of Assembly.</p> <p>The cultivation of the soil, and raising crops for. the sustenance of man, is necessary to. give title by settlement under the act, but it is not necessary that a settler should rely on his crops as the exclusive means of support, if he intend to make the land a permanent residence; other advantages, such as a mill-seat, may also have been in his view, from the' use of which- a maintenance may be expected. But the intention to use the land only whilst timber remained, or for any other temporary purpose whatever, gives no pre-emption right. •</p> <p>Cultivated land cannot be assessed-as unseated, thpugh the owner do not reside on it, ■ and the assessor is not authorized to return it as such if there be marks of cultivation without residence, which puts him on inquiry, without the clearest signs of an abandonment of the settlement. .</p>

<p>Appeal from the Orphans’ Court of Somerset county.</p> <p>Oct. 16. Certain real estate of Conrad Carpenter having been sold, the matter was referred to an auditor for distribution among the heirs, with directions to take into consideration any charges or expenses which any of the heirs had been at, in and about the said lands, and also any advancements, and the indebtedness of any of the heirs, in the distribution of other property of the decedent. Conrad Carpenter died in 1823, intestate, leaving a widow and nine children. Certain of his real estate in Philadelphia- having been sold, an auditor’s report-was confirmed in 1840,-which stated’that •Charles, Benjamin and Miles, three of the decedent’s sons, had been advanced $1000 each, and that Charles was also indebted on a loan by his father, with interest $2140. - The total proceeds of the sales and of personalty (not ></p> <p>paid to the-widow) were $16,628 61</p> <p>The advancements and indebtedness of the sons, 5140 00</p> <p>21,768 61</p> <p>Which divided into nine parts gives $2418 73</p> <p>as the share of each of the children but Charles,</p> <p>Who, being indebted to the estate $3140', therefore, 18,628 00</p> <p>Divided into eight parts gives . $2328 57 as the share of the other eight children.</p> <p>Benjamin and Miles’ shares, deducting advances, 434 00</p> <p>The other children, 1434 00</p> <p>There was also a record of a proceeding.in chancery in the Common Pleas of Philadelphia county, by Ann Carpenter et aL v. Miles Carpenter, founded on a purchase of certain real estate by him in trust for the heirs, which was sold. On a reference to a master, the defendant claimed, and was allowed for taxes paid, and expenses about the trust estate. 2. Claims for services about the estate generally, which were disallowed, having been rejected by the auditor, on the account stated- above in the Orphans’ Court. 3. For taxes and expenses about the lands (the proceeds of which were now for distribution) which were disallowed, as having no reference to the trust estate. The master reported that defendant was indebt-ed to the estate in $1884 14. On the 20th June, 1844, a decree was made absolute, confirming the report. The certificate to this «report” was dated about eleven months after the reference to the auditor in the present proceeding. The auditor allowed George W. Carpenter, one of the appellants, a.part of his claim. What the claim was, does not appear from the paper-book. He allowed Miles Carpenter his claim, which wTas said to be too great, and divided the residue equally among the nine children, stating « no evidence was brought before the auditor, conclusive that said sum should not be equally divided among them.” The exceptions were to the allowance and disallowance of the claims of George and Miles, and in refusing to set off the claims against Charles and Miles respectively.</p> <p>The report having been confirmed, this appeal was taken by seven of the heirs.</p>

<p>In error from the Common Pleas of Jefferson county.</p> <p>Oct. 16. On the 19th of April, 1842, the plaintiff" below brought an action on a judgment recovered in the District Court of Bangor, Maine, on the 13th of February, 1840, in an action of assumpsit. To this the defendant pleaded, and afterwards filed an amended plea, which was a repetition of the original plea, with such averments as are here contained between brackets. ' That “ after making the said supposed promises and indebtedness in the said declaration mentioned, to wit, (on the 22d of June, 1842, he the said defendant presented and filed his petition in the District Court of the United States, then holden, &c., at Pittsburgh, for the benefit of an act of Congress, entitled, &c., and it appearing to .the said court, that the-said petition was in conformity to «áid act, he, the said defendant, was in pursuance thereof,) ion the '3d of December, 1843, by the said court was declared and became bankrupt, within the true intent and meaning of the act of Congress aforesaid, concerning bankrupts, to wit,,at, &c., and that the said causes of action, if any such there he, and each of them, did accrue to the said plaintiff before the said defendant (presented and filed his petition aforesaid, and) so '(was declared and) became a bankrupt, at,” &c., with conclusion to the country.</p> <p>The plaintiff demurred generally, defendant joined therein, and judgment fvas given for the plaintiff.</p> <p>The error assigned was, .“the" court erre'd in rendering judgment on the demurrer, &c., th| plea being sufficiently certain to a common intent,” &c. . -</p> <p>The discharge under the act of 1841, as a. bankrupt, discharged the debt. ■ The plea is a sufficient averment of that. 3 Chitty’s PL. 912, n. The amended' plea is sufficiently certain under the.precedents. 3 Penna. Black. 246; 2 Whart. 253; 9 Watts, 149 •• 4 Rawle, 83. Certainty, to a common intent, is all that is required; the amended plea avers he was decía.td a bankrupt, and then, that he became a bankrupt; and how r. man can become a bankrupt without being discharged; is not t asily explained. . _ 1 .</p> <p>must be specially pleaded, and since an aption maybe maintained until the discharge, (1 Chitty’s PI. 60,) the fact and date of the discharge are essential averments.</p>

In error from the Common Pleas of Jefferson county. Oct. 16. The plaintiff in this ejectment derived title under warrants Nos. 3701, 3741, to Robert Morris, dated March 5th, 1793, which were surveyed in 1820. Morris, by his will in 1804, devised The defendants offered in evidence an application by John Nichol-' son to the land-office on March 5th, 1793, for ninety thousand acres.

<p>' Where a defendant has been arrested on a bail-piece, an order of discharge by the court is conclusive in an action against the bail; it is immaterial that the order was made' for erroneous reasons. .</p> <p>Such an order may be pleaded .to a so. fa,, or an exoheretur may be entered on the bail-piece. ' • •</p>

<p>In error from the Common Pleas of Westmoreland county.</p> <p>Oct. 20. The plaintiff’s testatrix, on the 18th February, 1840, recovered judgment by confession against the defendant in error. On the 11th March, 1845, the plaintiff, suggesting the death of her testatrix in the body of the writ, issued an attachment in execution on this judgment, which was returned, on the 27th, nihil as to defendant, and attached as to the garnishee. On the 19th May, Butler, by his attorney, moved to quash the. writ, which rule was made absolute on the 20th.</p> <p>This was the error assigned.</p>

<p>To establish a consentable line between owners of adjoining tracts, knowledge of, and assent to the line as marked must be shown in both parties.</p>

<p>In error from the Common Pleas of Jefferson county.</p> <p>■ Oct. 20. This was an action of trespass against a collector of taxes for selling the propérty of defendant under a warrant. The plaintiff proved the seizure of a horse and saddle, four or six miles from his residence, by defendant claiming under a warrant against Robinson, and a sale at the house of the collector after advertisement. The defendant gave in evidence the duplicate of the assessment" of Robinson’s property, for 1843, consisting of a tract of land with a saw’ and grist-mill, and five other' tracts, together with one .mare and a cow valued at $40, and $10 respectively, the total valuation of which property was $2901, and the tax assessed $29 00. Also a warrant signed by the commissioners. He then proved that defendant-resided with Robinson and others, at the mill tract, the title of which Robinson claimed. Also that defendant, Robinson and the others, had said in each -other’s presence, that they were to have the' mills and privilege of using the timber on all the lands for three years. The plaintiff gave evidence that the several tracts of land were separated from each other a considerable distance, and that Robinson claimed exclusive title, and was in exclusive possession of some of them. He also- gave evidence that defendant had previously levied under the warrant, on some boards of Robinson, which were.delivered up for that purpose by plaintiff, but on cross-examination the witness stated, (and there was other evidence to the same effect,) that they were given up on proof they belonged to a stranger. He further proved the value of the saddle and bridle was from $3 to $5. The defendant had given notice to produceAhe lease of the property. The plaintiff then offered to prove by his own oath that the lease between plaintiff, Robinson and.others had been deposited with 'Fitsimmons, who now resided in Tennesseej f°r the purpose of introducing parol evidence of its contents, but the court rejected the evidence. The- defendant then proved the property sold.for $26, and the purchaser, four or five days after, sold the maré for that sum. It was admitted that the seizure was for the entire amount of the assessed taxes.</p> <p>The court, (McCalmont, P. J.,) after stating the provisions of the 21st and 46th sections of the act .of 1834, instructed the jury that if the tax, for which the sale wras made, was assessed on the property of Robinson, of which plaintiff was in possession at the time of the assessment, and so continued until the sale, whether solely, dr as partner with Robinson and others, the defendant was justified in seizing the property in any part of the township. A constructive payment of the tax prior to the seizure would render- him liable, and that a seizure and release of Robinson’s own property would amount. to such a payment. That there was nothing in the act of 1844,' which altered the'law as to -plaintiff’s liability for the taxes, and it was immaterial whether Robinson was in .the -county after the defendant received his duplicate. . . ■</p> <p>The answers to the plaintiff’s third, fourth, fifth, sixth, seventh, and ninth points were excepted to; these were, 3. That the dis- . tress might be made off the premises. 4. It was immaterial that the. tracts-were assessed separately, if,plaintiff occupied them-under his lease dr agreement. 5. The court did not see any evidence that the collector distrained for the personal tax, which was fifty cents, the amount levied not being more than the amount due on the realty. 6. That it was not the duty of the collector to return'the duplicate-to the commissioners under .the act of 1844, sec. 41, if the owner.or occupier refused to pay the taxes,, or turn out property. TKe'7th was answered distinctly as requested. 9., A previous demand of the taxes was necessary, but the turning out property to meet the demahd was evidence thereof. ■ ' . ■</p> <p>The rejection of parol evidence of the contents of the lease, in addition to the answers of the court to the plaintiff’s points, were' the errors assigned. . . , .</p> <p>It was contended oh the trial, that as Montgomery lived on the property, he was liable for-all the taxes. They were assessed against Robinson. Montgomery was a tenant of one of the tracts only. To charge a tenant, he must 'be in possession at the time the taxes are assessed. In assessing the taxes against -Robinson, the county had made its election ; and -the property of Montgomery could not be distrained therefore. If taxes are assessed against the real owner of the land, they cannot be collected from the tenant. Property distrained for taxes must be on the premises at the time-of making the distress. ’’ If Montgomery was liable for a part, he was certainly not liable for the whole amount of the tax assessed against Robinson. Act of the 15th April, 1834, secs. 21 and 46, Purd. Dig. 205-7, and Act of the 29th April, 1844, sec. 41; Pamph. Laws, 501.</p> <p>The collector must look to the person assessed. Shaw v. Quin, 12 Serg. & Rawle, 300.- The taxes cannot be apportioned. The abandonment of a sufficient levy on the goods of the owmer of the land, is 'a satisfaction of the taxes. Parker’s Appeal,- 8 Watts & Serg. 449.</p> <p>It was'the duty of -the plaintiff to have had the lease at -the trial. Robinson had leased to Montgomery, his son-in-law. The lease wrnuld have disclosed every thing in relation to the tenure of the property. But it was proved, that Montgomery was 'in the possession of all the property, as the tenant of Robinson. The assessor is not bound to inquire whether the owner of a property has leased it. Montgomery, as the tenant of Robinson, was liable for the taxes. The distress upon Floyd’s lumber (which was abandoned) -for the taxes, was a sufficient, demand under the act of Assembly. A collector is a public officer, and will be 'protected in the execution of his duty.</p> <p>If there was any injury committed-by'the collector, it was an excessive distress, and the remedy should have been case and not trespass.</p>

<p>In error from the Common Pleas of Armstrong county.</p> <p>Oct. 20. The defendant in error brought an action in the court below, in which he filed a statement of his claim on a promissory note of- the defendants. A reference, and award for the plaintiffs, having been made, the court permitted a declaration on the note to be filed, but withdrew permission to declare on a book-account after an appeal from the award, as having been improvidently granted. The defendants dissolved partnership on the 11th November, 1840, when they were indebted to the plaintiff on a book-account. The note in question was given by one of the partners, who attended to the collection of the debts due to the firm and paid the costs of suits tbereon, in'liquidation of the plaintiff’s debt, and was dated October 4, 1842. At this time the plaintiff had notice of the dissolution,’ and some demur was made by the signing partner, as to his right to use the firm’s name after dissolution. The drawer had no express authority to settle the concerns of the firm, but continued his separate business in the same establishment. . •</p> <p>The errors assigned were, 1. In admitting evidence of the book-account under a declaration on the note. 2. In admitting evidence that the note was given to close the account after the dissolution. 3. In admitting the note in evidence. ’ 4. In permitting the amend■ment to the declaration.</p> <p>An adjustment of a claim against the firm by one partner, after a dissolution, is not binding on the other, even though he were authorized to, settle the affairs. Hackley v. Patrick, 3 Johns. 536; Lansing v. Gaine, 2.Johns. 300.- Nor can he endorse notes, or draw bills for an old debt. Sanford v. Mickles, 4 Johns. 224. The authority of a partner ceáses on the dissolution; the power to receive and give acquittances for antecedent debts, and his other powers, being simply that of any joint creditor. 4 Johns. 227 ; 6 Johns. 146; Levy v. Cadet, 17 Serg. & Rawle, 127.; Bell v. Morrison, 1 Peters, 370; 4 Munf. 215; 3 Pick. 177; "Whitehead v. Bank, 2 Watts & Serg. 172; 2 Stark. Ev. 589 ; , Abel v. Sutton, 3 Esp. 110. A change-in the narr.-is not allowed under the act of 1806, after an award. • Reitzel -n. Franklin, 5 Watts &Serg. 33; Cárskaddén v. McGhee, 7 Watts & Serg. 140.</p> <p>There is really but one point in this case, and that is, whether a partner, after dissolution, may give a note in the firm’s name for á debt of the partnership. That he has the power, is- settled in this court, Davis & Desauque, 5 Whart. 530; Houser v. Irvine, 3 Watts &Serg. 345 ; Griswold-n." Waddington, 15 Johns. 83. This being the case, .we had .a, right to show the original indebtedness. The amendment wás a"simple change from a statement 'to .a formally drawn declaration.' •’•-''- ■' > ! —</p>

<p>The lines actually marked on the ground constitute the survey in all cases, whether a .warrant call for another as adjoining or otherwise.</p>

<p>Auditors are allowed fees for distributing a fund paid in court.</p> <p>Assignment of a debt, either actual or by operation of law, as by an attachment, carries with it the right to use all securities for its recovery.</p> <p>Attachment in execution is pleadable in abatement only by the garnishee until satisfaction, when it is a bar pro lanto.</p> <p>Where A. attached a debt due to B. on a judgment against G., A. is entitled to claim under B.’s judgment on distribution of the proceeds of a sheriff’s sale of C.’s property.</p>

In error from the District Court of Crawford county. Oct. 22. This case wras argued at the last term, and stood over for judgment until this day. It was an ejectment brought in April, 1842, to compel, by a conditional verdict, performance of an agreement by the defendant to'purchase.

<p>In’ error from the Common Pleas-of Indiana county.</p> <p>Oct. 22. This was an ejectment for á piece of land within the lines of the claims of both parties. The plaintiff-had the elder title by warrant, survey, and patent. The defendant entered as a settler, and marked the lines of his -claim, which included a part covered by-plaintiff’s survey, and which was the land now in dispute. He gave evidence of possession and improvements for twenty-one years before action brought. The plaintiff gave some evidence of an entry on his tract before the lapse of the twenty-one years.</p> <p>The court instructed the-jury, that the title by the survey, &c., drew the constructive possession to the whole tract, unless there had been twenty-one years’ possession under the junior survey, to which the law gave the same effect as a survey for an actual settler. When he entered under that, he was considered in possession of the whole, until the rightful owner entered, and then the law adjudged the possession of the unimproved land to be in him. But, if the owner of the junior survey was permitted to remain in possession twenty-one years before entry, he is protected by the statute to the whole extent of his claim. If, however, the owner of the elder warrant take possession within twenty-one years, it divests the title of the junior surveys, except so far as the owner may have actual occupancy by clearing, fencing, and building, and the statute in such case would protect him only to the extent he had improved, twenty-one years before action brought.</p> <p>A right to the whole tract by designation of boundaries merely, is an exception to the rule requiring actual possession to give title to an intruder, and the case must be brought clearly w'ithin the exception. If the lines are distinctly marked, as is said in Cluggage Duncan, 1 Serg. & Rawle, 111, so as to make the boundaries known; if the exercise of acts of ownership over the whole be notorious, and if the whole be returned for taxes, the statute of limitations would protect defendant in the possession of the whole tract. Heiser v. Riehle, 7 Watts, 37; Criswell v. Altemus, 7 Watts, 566 ; Bell «. Hartley, 4Watts & Serg. 32. Here were no acts of ownership. There was no cultivation. The plaintiff was not bound to take any notice of a private line. On the outside of our survey, the defendant was a settler, but inside of it, he was a disseisor.</p> <p>A disseisor may, doubtless, acquire a good title to land against the legal owner, without any residence thereon, under the statute of limitations. Hoey v. Furman, 1 Barr, 295, 299, 301; Porter y. McGinnis, 1 Barr, 413. ;</p> <p>• If the statute protects nothing but the woodland of actual settlers, it would not operate on woodland at all. Porter v. McGinnis, 1 Barr, 416; '</p>

In error from the Common Pleas of Jefferson county. Oct. 23. The plaintiffs in this ejectment, commenced on the 22d of March, 1841, gave in evidence articles for the purchase of certain land from them by Thompson, by which a deed was to be made May 1,1840, when the first instalment of $456 25 was to be paid, and like sums on the 1st of May, 1841-42-43, with interest on the two last sums, from August 1, 1841; all of them secured by bond and mortgage.

In error from the Common Pleas of Armstrong county. Oct. 23. The defendant in error, in 1804 or 1805, entered upon, and settled a tract of land, of which the lines were marked by him. This land had been previously surveyed under a warrant, and the title of the warrantee was vested in Cravener. About the year 1816, Bowser, by written articles, sold one-half of the land to .one Flanner, who entered, cleared, and cultivated it.

The prisoner was indicted for the murder of Eve Mosler, his wife. It appeared that the parties had been married about eleven years, and that there was a great disparity of age between them, the prisoner being nearly twenty years the younger of the two.

<p>Where a prisoner charged with homicide was taken before a committing magistrate, and there .sworn to tell the truth, and told, “If you do not tell the truth, I will commit youa confession thus exacted is inadmissible as evidence against the prisoner on trial.</p> <p>When a previous confession is unduly obtained, any subsequent confession given on its ‘ basis is inadmissible.</p> <p>The Commonwealth having offered to prove a prisoner’s confession, the court permitted the evidence thus offered to be interrupted, for the purpose of showing that a previous - confession by which it was induced was unduly obtained.</p> <p>The examination by a committing magistrate of a prisoner under oath, as to the subject matter of his offence, is sufficient, it seems, to render inadmissible evidence thus elicited.</p> <p>It is the duty of the coroner, after death by violence, to cause a post mortem examination to be made by competent medical authority; and a physician thus employed may, at common law, maintain an action against the county for trouble and labour expended in such examination.</p> <p>Circumstantial evidence is, in the abstract, nearly, if not quite, so strong as positive; in the concrete it may be much stronger.</p> <p>Though it is necessary to prove in a trial for homicide, that the violence inflicted by the defendant was the cause of the death of the deceased, yet it is not always necessary to prove by positive evidence, that life continued to the moment of the fatal blow. The presumption that a person, proved to have been alive at a particular time, is still so, holds until it is rebutted by the lapse of time, or other satisfactory proof.</p> <p>A doubt, to work an acquittal, must be serious and substantial; not the mere possibility of a doubt. ,</p>

In error from the District Court for the city and county of Philadelphia. Dec. 15. An execution on personal property having been issued against Taylor & Co. at the suit of Duffy, the proceeds of the sale were paid into court, and feigned issues directed between Seal, the assignee, and several of the creditors of the firm, on the trial of which, exceptions were taken to the charge of his honour Findlay3 J., which were argued here.

In error from the District Court of the city and county of Philadelphia. - Dec. 17. 'This was an action on two notes, dated July 1, 1832, at six and seven months respectively, each for $788 90, tried before Stroud, J. The defendant offered in evidence a paper signed by Van Amringe, reciting that he had established himself in business, and had agreed to advance on consignments of coal, for which he was to charge five per cent, commissions, and that Ellmaker had agreed to…

<p>From the District Court of the city and county of Philadelphia.</p> <p>Dec. 18. This was an appeal from the decree of the District Court, distributing the proceeds of a sale by the sheriff under a fi.fa. against Moss.</p> <p>On the 28th May, 1842, an agreement for an amicable action and confession of judgment was given by Moss to the appellant, on which judgment was entered August 2d.</p> <p>By the statement annexed, according to the rule of the court, it appeared, this was for the purpose of indemnifying appellant, in consequence of liabilities incurred for the sole use of Moss. These were notes of appellant dated in March, 1842, at forty, sixty, and ninety days, amounting to upwards of $1200; an endorsement on Moss’s note at ninety days, dated April 27, for $625; a judgment-note, lent him, held by C. & H., for $100; and suretiship for stay in ■ execution, $280; amounting in all to $2229 70. It was also .agreed therein, that a release from any of these liabilities should be a satisfaction pro tanto; the judgment to remain in full force for the amount of such of the above as should be suspended or substituted, until payment. On the 3d September, execution issued, and the proceeds of the levy and sale was the fund in dispute, amounting to $608.</p> <p>Barton & Co. claimed under an execution left wdth the sheriff on the 6th of September, the day it issued.</p> <p>Harris, under an execution issued on a day subsequent to that of Barton’s.</p> <p>On reference to the auditor, it was proved on behalf of Wilkinson, that his counsel, at the request of appellant, drew the confession of judgment from papers handed him by appellant in his clerk’s handwriting; that he handed it to appellant, and never saw the paper again, until he issued the execution. That appellant frequently applied to him to issue execution, but he advised lenity, thinking Moss might get out of his difficulties. His views wmre acceded to until the execution was issued, when peremptory instructions were given. This delay was advised, under Moss’s promises of payment of a certain sum for- money lent.</p> <p>On the 3d October, 1842, Moss filed his petition in bankruptcy, and on the 23d January following, a decree was made.</p> <p>.. The assignee claimed the fund before the auditors, wfho awarded it to Barton and Harris; and his report being confirmed, this appeal was taken.</p> <p>It seemed from the exceptions, that the auditor decided, the appellant’s claim was a fraud on the bankrupt law.</p> <p>In this court, the contending parties were the execution creditors, the assignee not appealing.</p> <p>premising that the decision rested on the supposition, that the.bankrupt law avoided the transaction, and that if this was a security within the meaning of the law, it was within its saving proviso as bond fide, and more than two months before the petition—submitted three points: 1. That under the act, the transaction must be voluntary, which this was not, as it was done at the instance of the creditor; Boydell v. Gillett, 2 Cromp., Mees. & Ros. 579; if caused by pressure of the creditor, it will not be fraudulent within the act. Phoenix v. Ingraham, 5 Johns. 428; McMechen v. Grundy, 3 Harr. & Johns. 185; Haldeman v. Michael, 6 Watts & Serg. 128, a confession of judgment, if caused by the act of the creditor, is not voluntary within the bankrupt law, and the onus is on the creditor to show this. On page'130, it is said, “unless the debtor took the first step, any solicitation, is sufficient;” and that was affirmed by this court.</p> <p>2. That an issue should have been directed to test the fact of fraud or contemplation of bankruptcy; for in Miller v. Black, 1 Barr, 420, it was held, that the court could not, on a statement of facts agreed on, decide the inference of fraud or contemplation of bankruptcy, though a jury would probably have so found. In Reigart v. Small, 2 Barr, 487, the form of the issue is to be found.</p> <p>3. That conceding it was within the act, the assignee only could take advantage of the defect. Cornwell’s Appeal, 7 Watts & Serg. 305, which, as to this point, is unaffected by Weiner v. Farnum, 2 Barr, 146 ; Edwards v. Coleman, 2 Bibb, 204; Pellman v. Hart, 1 Barr, 263. [Gibson, C. J.—The assignee would only be entitled as against the fraudulent judgment, not against the others.]</p> <p>The judgment is an indemnity for past liabilities ; therefore, the authorities cited are inapplicable, for as no suit could have been commenced on these liabilities, the appellant could not have helped himself to an execution; it must, therefore, have been a voluntary act, and void under the bankrupt law.</p> <p>2. An issue was unnecessary, as it was agreed the auditor should decide on the facts. The agreement was, “ the auditor shall take cognisance of the validity of the judgment,” and his opinion rested partly on the fact, that no stay of execution was stipulated for, the liabilities not being then due. That a judgment confessed is within the bankrupt law, is shown by 1 Penna. Law Jour. 404; 5 Law Rep. 310—312, 296 ; S. C., 1 Law Jour. 270. [Rogers, J.—There is not a shadow of evidence that the judgment was confessed at the request of any one but the creditor; is that fraudulent?] If at his request merely, it was voluntary, for the demand could in no way be enforced.</p> <p>Nothing has been said contradicting the authorities cited on the first: point, and this judgment was four months prior to the petition. [Rogers, J.—The case in 1 Barr says, explicitly, the aid of the bankrupt law can only be invoked -under its- authority, by the assignee.]</p>

<p>A copy of a docket entry certified to be “ as full and complete as the same now remains of record in said court” is not such a transcript of the record as is directed to be filed by - the act of April 16, 1840, sec. 1, for the purpose of transferring a judgment from one •court to another court in the Commonwealth.</p>

In error from the District Court for the city and county of Philadelphia. Dec. 18, Jan. 20, 21.

Dec. 19. In consequence of the decision of this court in Murphy’s Appeal, 8 Watts & Serg. 172, that the heirs of a decedent were entitled to be heard against the right to lévy on land descended, under a judgment against the administratrix for a debt of- their ancestor, the Orphans’ Court directed an issue to be tried in the Common'Pleas, between the plaintiff in the original judgment, and the heirs as defendants.

<p>Certiorari to the Quarter Sessions of Pike county.</p> <p>Dec. 21. In 1833, a petition was presented to the court below, stating the petitioners’ inconvenience, See., for want of streets and alleys in the town of Milford, (as designated and laid down in the plan of said town by the original proprietor, a plan whereof was annexed,) declared public roads-or highways, and praying the appointment .of persons to view and layout the same. The order directed the five viewers to view, &c., and if they should agree «there is occasion for such streets .and alleys being opened, they shall proceed to lay out the same agreeably to the original plan of said town,” and make report. In January, 1834, -four of the viewers reported they had-viewed, laid out,-and returned for public use,’ the following streets and alleys, « beginning at the south-west end of Sixth street, thence to High street, thence up High street to Seventh street, thence up Seventh street to the north-east, corner of the town-; thence down Elizabeth street to Gooseberry alley, thence up Gooseberry alley to Hartford street.” Several other streets were laid out by similar references to streets by name, « and also a public square, a plot or draft whereof is annexed.” In April of the same year, the report was confirmed. In 1844, the supervisors having been requested to open certain of these streets, and alleys, a case was stated for the opinion of his honour Jessup, P. J., whether the proceedings are valid, and would justify the said supervisors in opening the streets and alleys. His honour was of opinion, that the. order was binding and in full force, and that the Court of Quarter Sessions could not now reverse or dispute its validity, and that it was sufficient until reversed to justify the supervisor. The party over whose land the streets and alleys ran, sued out this writ.</p> <p>The proceedings having been commenced and concluded under the former law, (act of 1802, 3 Smith, 512,) that alone is to be the rule of decision. It is very obviously not adapted to streets and alleys of a town, but was intended to apply merely to a single road in the country, and this seems to be decided in the case of the Easton Borough, 3 Rawle, 195, though there was a special jurisdiction created by the charter. Rogers, J.—I think the court has jurisdiction, or it w7ould reside nowhere, and that is the spirit of the decision in 3 Rawle. Bell, J.—■ The great objection is, there is no discretion given to the viewers. [Rogers, J.—It is more like an order to op'en than to lay out and open. Coulter, J.—A case at Lancaster decides this; it was there held, that no discretion being given, the proceeding wras bad.] These-are among the many objections to this proceeding. There is another; it nowdiere appears, that the five viewers viewed as they are ordered. [Bell, J.—That would have been fatal below, but it is a matter of fact for that court.]</p> <p>The courses and distances are not given, and this is fatal; 3 Binn. 3; for the supervisor acts at his peril. There is no reference to improvements, and they will be presumed to exist in a town. Buttonwmod Road, 13 Serg. & Rawle, 445. The record was not made as directed, and the breadth is not given. [Bell, J.—There may have been a standing order on that subject.]</p> <p>The court declined hearing J. M. Porter on the same side, and no one appeared on the other side.</p>

<p>A promise made to a justice to be bail in stay of execution, not being a recognisance, requires a consideration to make .it binding, and there must be evidence of assent by the plaintiff, whereby he was to be bound by the condition, not to issue execution during the stipulated period. The mere fact that no execution was issued during that time is not sufficient to raise a legal inference-;, though had the promise been to the plaintiff himself, such might have been made.</p> <p>An agreement only comprehends those things about which the parties may be supposed to have contracted. Hence a promise to become bail in stay of execution must be construed with reference to the then existing law on that subject, and to entitle a party to sue on if, he must have performed the same conditions as are pre-requisites to a proceeding on a legal recognisance .of bail. Per Bell, J.</p>

<p>A. purchased nine tracts of B. in 1810, and gave a mortgage for the purchase money payable in 1814, under an agreement that on a resale, B. would, on receipt of the purchase money, release such under-purchaser from the lien of the mortgage. In ejectment in 1841, against an under-purchaser on this mortgage, the plaintiff having shown an amicable ejectment between B. and A., for four of the reserved tracts of land in 1821, and a general reference with an award of a balance due on the mortgage confirmed in 1824; asci.fa.to revive, as in debt, with a judgment in 1829; another sci.fa. in 1834, in which the under-purchaser was summoned as terre-tenant, and disclaimed title to the lands included in the original action, and a general judgment was entered: Held, the court could not do more than leave these as facts to the jury, to rehut the presumption of payment from circumstances and lapse of time.</p> <p>Whether, under the right to a release by the under-purchaser, these proceedings were evidence against him. Query?</p> <p>The records of judgments recovered against the plaintiff during the twenty years, which period is set up as furnishing a presumption of payment by the defendant, are evidence,in aid of the presumption of payment, although such judgments have been satisfied.</p> <p>Legatee in a will, more than twenty years old, which charges his legacy on the land, is a competent witness for devisees: it appeared there was other property, and no evidence that ho could be called upon to refund.</p> <p>It seems, the reasons for a new trial arc such a part of the record that they may be read where the record itself is evidence.</p> <p>Former recovery in ejectment evidence between the parties.</p> <p>Proceedings in error are admissible in evidence between the parties.</p> <p>Counsel in a cause may prove matters occurring therein in open court, against his client, as what title was in question therein.</p> <p>Ejectment in 1817 against defendant not competent to rebut inference from judgments recovered in 1821 and subsequent years, against plaintiff, which were used to aid presumption of payment of a debt more than twenty years old.</p> <p>The time when a witness is allowed to he examined, not the subject of a writ of error. Where the court answer a point as requested, hut a mistake in fact be committed therein, the counsel must, at the trial, call the attention of the court to the error.</p> <p>Where there is evidence of payment, and records of proceedings are shown to contra, diet the presumption arising from lapse of time, it is proper to leave the whole to the jury.</p>

<p>Where evidence, has been improperly admitted and then withdrawn, its admission is not the subject of a writ of error. , S. P. Unangst v. Krcemer, 8 Watts & Serg. 401.</p> <p>Where two persons joined in signing a note, that is the evidence of the contract a^d a merger of previous agreements for a loan to one.</p> <p>This court will not reverse for a variance between the narr. and the evidence, unless the attention of the court below has been directed to the defect.</p>

In error from the Common Pleas of Monroe county. Dec. 22. Assumpsit on a book account, to which defendant pleaded the general issue and the statute of limitations. The plaintiff proved the account for medical attendance; the charges commenced June 1, 1828, and continued through that and the following years, up to 1834, amounting to $>13 55; the charges in 1832 and 1833, amounted to $7 50.

<p>A certificate that “ there is due from the Hazleton Coat Company to A. or bearer $5, value received, payable one year after date at the office of the company, Philadelphia, . with interest at six per cent, per annum, being part of a'loan authorized by an act ' of the legislature of Pennsylvania, of the 8th of March, 1839,” signed by the president, and by B. for the treasurer, and printed on bank-note paper, is within the act of March 22, 1817, §'2d, inflicting a penalty on the issue of promissory notes, tickets, or engagements of credit, in the nature of bank notes.</p> <p>Possession by plaintiff, coupled with proof of the signatures made by the officers of the company, is not sufficient evidence of the making and issuing within the act..</p>

In error from the Common Pleas of Monroe county. Dec. 24. The question here was, whether the plaintiffs, having brought suit in the Common Pleas and recovering less than $100, were entitled to costs. The action was on a note for $221, drawn by defendants, and the pleas were payment with leave and set-off. The defendants proved that plaintiffs said the price of a horse and a book account were to go off the note.

Dec. 28. Adam Fleck by his will devised his real estate at a valuation to three persons, and the money arising therefrom, with the whole amount of his personal estate, and the residue of all his estate to his eight children in equal shares.

<p>It is a fatal error in proceedings to lay out and open a road that the breadth is not directed by a special order of the court. A general order, applying to all cases not otherwise provided for, is insufficient.</p> <p>A report of viewers, that they have laid out a road for public use, is a sufficient compliance with the order to state whether it is deemed necessary for a public or private road. Per Gibson, C. J.</p> <p>The adoption of a report of re-reviewers is a waiver of a report of viewers, though exceptions thereto are still pending. Ib.</p>

<p>An agreement of thifty years standing among members of the bar, and filed of record, relating to the form of proceeding in all cases of appeals from justices, is binding on their successors,- not having given previous notice of their dissent; the practice during that period having been regulated thereby.</p> <p>And where agreeably to this practice' a declaration for money had .and received was filed in an action on a recognisance of bail,, averring a promise on a day which was a Sunday, it seems this defect cannot be taken advantage of.</p> <p>In an action on a recognisance under the act of July 12, 1842, parol evidence that the defendant had goods at the time the recognisance was. entered into, is admissible.</p> <p>Executions issued by one justice on the transcript of another justice of the same county, who was at that time in commission, and acting in his office, are void; not being allowed by any act 'of Assembly. ■</p>

<p>Where one of two administrators absconded after a settlement of accounts, and the court, on petition of a distributee, cited the administrator residing in the county and the sureties to appear, and discharged the administrator from the citation, and confirmed the report of auditors charging both administrators with a debt not included in the inventory, an action cannot be sustained on the bond by one of the distributees against the surety alone.</p> <p>In such case, the administrator who may be served must be charged as with a devastavit before the surety is liable, for he is only liable contingently, and the law recognises the relation of principal and surety in this case. The act of 15th March, 1832, merely changes the form of proceeding, not the nature of the liability.</p>

<p>In error from the Common Pleas of Bucks county.</p> <p>Dec. 29. Debt on a recognisance entered into by defendants, August 8, 1838, reciting that plaintiff had made complaint before two justices, that he had purchased a tract of land at sheriff’s sale, which B. Rue', the defendant in the execution, was in possession of; notice, citation, &c., and that Samuel White appeared before the justices and made oath that he came into possession under title derived from B. Rue, before the judgment under which the execution and sale took place, with the following 'condition annexed :</p> <p>“Now, therefore, the condition of this recognisance is such, that if the -said Samuel White shall appear at the next Court of Common Pleas of Bucks county, and then and there plead to any declaration in ejectment which maybe filed against him, and thereupon proceed to trial in due course of practice; and in case he shall fail therein, that he will deliver up the said premises to the said George W. Rue, and pay to him the full value of the rents and mesne profits of the premises accrued from the time of the purchase, then this recognisance .to be void, otherwise to be and remain in full force and virtue.” This was endorsed “No. 107, September Term, 1838. Filed September 10, 1838. G. Rue v. B. Rue.” '</p> <p>The plaintiff then gave in evidence the record of an amicable action of ejectment by George Rue against Samuel White, in April</p> <p>Term, 18-39, No. 94 ;(a) the agreement for which was made April 18th, and filed the same day. This action was referred to arbitrators, an appeal taken by-defendant, and a verdict and judgment for plaintiff February 10, 1841. The defendant objecting to the evidence, the court (Krause, P. J.) reserved the point, and in the charge to the jury, instructed them that this proceeding was evidence against the sureties in the recognisance. This was the question argued here.</p> <p>This recognisance was under.-the thirteenth section of the act of 16th June, 1836, and the question is: Was this proceeding evidence to charge .the surety? There was no suit at the next term according tt> the condition of the bond, and the laches discharged the surety, especially as his liability for mesne profits was increased by the delay; Theob. Prin. and Surety, 122,3 Price, 214,7 Price, 223, where it was held a reference to arbitrators discharged the sureties in replevin. Mountague v. Tidcombe, 2.Vern. 214,6 T. R. 200 ; Commonwealths. Bolton, 1 Serg. & Rawle, 328, where there being no court held on the day, a recognisance for appearance on that day was thereby discharged.</p> <p>The proceedings were returned at the next term, and constituted the proper issue to be tried, (Minier v. Saltmarsh, 5 Watts, 293,) which was under the act ojf 1802; the only change being that now the vendee is the actor.</p>

<p>A. and B., owners of adjoining tracts of land, under a parol agreement, erected a mill and dam at their joint expense, the scite of which was on the land of A., and the waterpower partly on that of B. B.’s assignees sold his tract as a saw-mill, with its appurtenances. Held, 1. That the purchaser might recover an undivided moiety of so much of A.’s land as was used for the purposes of the mill. 2. That it was immaterial that A. at the time of tire agreement had but an estate in remainder, subsequently vesting in possession. 3. That if the contract between A. and B. was for a term of years .only, yet if the purchaser from B. continued in possession after the determination of the term, and jointly with A. erected a new mill on file old scite, to propel which, the power on A.’s land was necessary, A. was estopped denying the right of such purchaser to a moiety of the mill scite and of his land covered by. the water which constituted the mill power.</p> <p>In ejectment, by the purchaser from B. against A.; evidence that the lot purchased was worth the amount paid, independent of the right to the water-power, is inadmissible, for the purpose of showing that the mill, &c., was not purchased. So of evidence of the present condition of the new mill, erected twelve years before the trial.</p> <p>By a conveyance of a saw-mill with its appurtenances, the right to land covered by the water-power will pass, though not expressly described in the deed. .</p>

<p>Where a guardian sold land of his ward for maintenance and education under an order of the Orphans’ Court, and the ward married and died under twenty-one, leaving a child, .who also died in infancy, the husband suing as administrator of the wife is entitled to the surplus of the proceeds of the sale, received by the guardian during the life of the wife, either in right of his wife, or of his child.</p> <p>The proceeds of land retaining the character of land, loses that and becomes personalty on the first transmission, though to an infant. Per Coulter, J.</p>

<p>Subsequent promise to pay for work already done with knowledge of the party i§ binding.</p> <p>Where there is a written promise to pay for such work, &c., for which the party would < not otherwise be liable, and that refers to a particular kind of work, there can be no recovery for any other.</p> <p>A promise by landlord to pay tenant for repairs, does not include improvements to the soil, or other matters which were only good husbandry. Nor does it include new erections of any kind, but simply a restoration of old or dilapidated buildings, &c.</p> <p>A. the father-in-law of his tenant B., agreed to allow him for repairs he had made on the farm of A., provided he should turn him off. A. devised the farm to the children of B., who, continuing in possession, cannot maintain an action on the agreement.</p> <p>Such an agreement is to bo construed to mean that A. would not in his life-time eject his tenant without compensation. Per Rogers, J.</p> <p>Tenant making new repairs and erections on the farm with the encouragement of the landlord, under a promise to give the farm to the tenant and his wife, (the daughter of the landlord,) may recover the value of such repairs and erections, if the landlord devise the farm to another.</p> <p>Legatee and annuitant of a solvent estate having received her legacy, and released and assigned the annuity, is a competent witness for the executor.</p> <p>The court cannot undertake to judge whether the release and assignment was colourable by one not party to the record. Per Rogers J.</p> <p>The competency of a widow as a witness in a suit between her deceased husband’s estate, and a stranger, depends on the rule of confidential communications. She is competent to testify to facts which were not confided to her by her husband, or learned in consequence of her domestic relations.</p>

In error from the Common Pleas of Bucks county. Jan. 2. Assumpsit for board, washing, and maintenance of defendant’s testator, from 1836 to 1838. In 1837, an inquest issued on the petition of the plaintiff, and the testator was found to have been a lunatic for four years previous, which proceedings were confirmed, and a committee appointed. The estate of the lunatic was about $10,000 at his decease.

<p>Under the act of 1792, unsatisfied warrants passed from hand to hand by endorsement or as bank notes, and an entry of a credit on the account of one making an application for other lands, by a debit to the account kept in the land-office with the holder of such warrants, is no evidence of title or interest in the person entitled to a credit in his account for unsatisfied warrants, and thus debited with the amount of so many of such warrants as were applied to the payment of the new warrants.</p> <p>Where A. had agreed to take up and patent lands for B. in N. county, in consideration of the assignment of a certain number of unsatisfied warrants, and A. procured warrants and surveys for lands in S. county, which were paid for by a debit to B.’s account on the land-office books for unsatisfied warrants; held not to be evidence of title in B. by payment of the purchase money.</p> <p>And where A. made the following memorandum on the back of a draft of the surveys of the land thus taken up by him: “ These lands sold to B. of Philadelphia, deed polls to him; purchase money paid me, (signed) A. The overmeasure to be cast up and accounted for,” which draft was retained in his possession, and, many years after his decease, obtained from one of his family without the assent of other members, and possession was not taken under B. for upwards of thirty years; it was held that the endorsement wa3 no greater evidence of title in B. than a verbal admission, to which at such distance of time, and under the circumstances, the statute of frauds was a bar.</p> <p>Conveyances by the heirs of A., of his lands in N. county, inadmissible for the purpose of showing that A. had obtained the lands there which he had agreed to patent for B., thus raising an inference of title in B. to the lauds in S. county.</p> <p>And so Of a sheriff’s sale of such lands as the property of A.,-with proof that his heiis pointed them out for levy and sale.</p> <p>Where the ancestor dies, pending an ejectment, and the alienee of the heir has been substituted without objection, the conveyance by the heir is proper evidence at the trial.</p> <p>Defendants in possession may always show the title they claim under, though it may not be the better one.</p> <p>Where an interested party was offered and admitted to prove the loss of title-deeds, and exception was taken, the record not showing that the testimony was given to the court only, there is error.</p> <p>An admission by ono during his tenancy, under whom one of the plaintiffs claim, affects such plaintiff only.</p> <p>Evidence of the purchase of land from those claiming as co-heirs with plaintiffs, only admissible to show a claim of title by plaintiffs in the same right.</p> <p>Evidence that the creditors of defendants’ ancestor levied oh all his lands which could be found, not admissible to rebut an inference of title in the ancestor.</p> <p>Copy of a supersedeas of proceedings in bankruptcy under the act of 1800, certified by the judge of the District Court, with a certificate under the seal of the court that the person so certifying was the judge, inadmissible as evidence.</p> <p>A certificate of a document from the land-office signed by a clerk for the secretary, under the office seal, is a certificate of the secretary, and evidence under the act of Assembly.</p>

<p>Jan. 11, 13, 14, 15, 16. This case was brought into this court by appeal from the decree of the Court of Common Pleas of Philadelphia. After argument, the case was-referred to an auditor. The reasons, therefore, and the instructions to the auditor appear in Okie’s Appeal, 9 Watts & Serg. 156. The present argument was on exceptions to the report of the auditor. The facts of the case, as they were presented in the argument, were these. The assignment on which the case turned, purported to be an «indenture made May 10, 1837, between John Knox and wife, James Boggs and wife, and James A. Knox; the said James being now absent, and acting by his attorney duly constituted of the one part, and William Wilson, and David Knox of the other part,” reciting that said John and James, lately trading as Knox and Boggs, and said John, James and James A. lately trading as Knox, Boggs & Co., were indebted to several persons therein-after mentioned, and were unable from losses to pay their engagements, and were desirous of making a just distribution ; in order to effect which, the said J. K. and wife, J. B. and wife, and J. A. K., granted, &c.'to the assignees, their heirs, executors, See., « all the estates, joint and separate, real, personal, and mixed, of the said J. K. and wife, J. B. and wife, and J. A. K., viz., all their real estates, stock, &c., choses in action, and other personal and partnership property of every name and description, whether held or standing in the names of said J. K., J. B., or J. A. K. jointly, or in common, or in the names of any or either of them, or of either of said firms a schedule whereof, as fully as could then be made out, being attached and made part .of the indenture, together with all the estate of the said parties of the first part, &c. : in trust to pay out of the proceeds of the separate estates thereby assigned or intended so to be—1. the expenses of the trust; 2. the «debts due by J. K., J. B., and J. A. K. respectively for house rent, household and family expenses, and servant’s wa^es ;” 3. out of the residue of the joint and separate estates to pay the creditors of K. and B. or K. B. & Co. mentioned in schedule B, class No. 1; then class No. 2; then class No. 3 ; then class No. 4. Then, after full satisfaction of these, to pay creditors generally, whether partnership or separate, « provided that no person in this last clause referred to shall be entitled to demand any dividend from the assignee by virtue of said clause, unless, if resident within the United States within three months, and if out of the .United States within nine months, he or they execute and deliver in favour of the said J. K., J. B., and J. A. K., and each of them and of their executors and administrators, a full and absolute release of all claims, &c.', upon said J. K., J. B., and J. A. K., reserving, if need be, their rights on any other personand provided that in no case should the joint or separate estates of either of the partners be applied to the payment of the debts of the other partners for which such partners were not liable.</p> <p>The residue, if any, after settlement of all debts, principal and interest, as above directed, was reserved to the grantors according to their respective rights.</p> <p>The deed was executed and acknowledged on the day of its date, by J. K. and wife, and J. B. and wife, and two additional seals were attached without signatures.</p> <p>The trust was accepted.</p> <p>Schedule A contained a description of several pieces of real estate belonging to James Boggs, and to John Knox; also a pew of J. K. in-church, one of J. B. in the same; one of J. A. K. in the same, and some other private property of J. K., and J. B., and debts due the firm, stock, and real estate, amounting to $637,750 08. Other property was also mentioned, immaterial to the present case. On the 2d of June, J. A. KnOx wrote from Nashville, in reply to a letter from Philadelphia, enclosing a power of attorney, saying he had just arrived, and hoped it would be in time. On the 3d, he again wrote to John Knox referring to the power of attorney sent the day before, and saying though he knew it would not arrive in time, he hoped it .would not be attended with serious consequences; “I feel much relieved since I have examined the papers, to find all 'has been given up.”</p> <p>The power was executed the 2d of June by J. A. K. empowering John Knox to sign and deliver «in my name any deed, Sec., conveying, &c., to any person, &c., all my interest, &c., in and to all the property, &c., belonging to the firm of Knox, Boggs & Co., it being my intent by these presents, to empower my said attorney in my behalf, to join my co-partners in executing any instrument” or assignment of the estate of Knox, Boggs & Co. for the benefit of said creditors in siich-manner as they thought proper; “and should my co-partners or either of them in our firm’s name, have-heretofore executed any such instrument,” See., he thereby ratified the same; “and I do hereby ratify all acts, deeds, assignments, &c., to whomsoever made, or to whomsoever they may hereafter be made by my said attorney, in virtue of and in pursuance of these' presents.”</p> <p>Creditors to the amount of $123,370, released according to the condition of the assignment.</p> <p>In 1838-9, J. A. Knox, acting for the assignees, under a letter, of attorney, dated May 12th, 1837, they- being by the assignment authorized to appoint attorneys, collected and remitted many thousands of dollars from the debts due the firm.</p> <p>A deed for a pew in the church was shown, whereby it appeared that the grantee had paid $225 for the samé, and held it in fee. Also a conveyance by said grantee to another, for $200.</p> <p>The constitution of the church was, that pews were held subject to such yearly rents, restrictions, and regulations, as the board of trustees may lawfully enact, with a right to them, in default of payment of the rent; to sell, paying the surplus to the owner.</p> <p>J. A. Knox’s account of personal estate in the assignee’s books, showed a .debit by cash $268. Credit by property assigned, $268.</p> <p>It was also proved that the pew of J. A. K. was worth from $400 to $600.</p> <p>The parties claiming under the assignment, gave evidence that J, A. K. resided in his brother’s family; had been employed as a boy in the store, and when taken into the firm, put in no capital. Witness had been very intimate with him from boyhood, and knew of no separate property, and no source from whence he could have obtained money.</p> <p>In September, 1837, J. K., and J. B., on their several petitions, were discharged as insolvents in Philadelphia; the two largest creditors being named trustees of J. K., but never acting. No trustees were appointed for J. B,, his assignment having been left blank. Okie was appointed trustee for both parties, May 28th, 1842.</p> <p>In 1842, J. A. K. was discharged as a bankrupt in Louisiana, and Okie appointed assignee April 5, 1844.</p> <p>. On the 4th February, 1842, the auditor held a meeting on the 5th general account of the voluntary assignees, and was attended by the assignees and releasing creditors.</p> <p>In order to have a fair statement of the whole estate made out, these proceedings were suspended for a time ; during this delay, no one having appeared before the auditor to contest the assignment, the assignee declared and paid a further dividend of nine per cent, to the releasing creditors, which amounted to $9869. The assignee then filed his sixth account, in which he claimed credits for these payments. Of the balance then remaining in the hands of the assignee, there was $3138 70 dividends declared in favour of creditors under former accounts, confirmed by the court, which had not been paid over, but were kept on deposit in the general bank account. Among these were Sheepshanks and Gray, who were exceptants and' heard in the present argument. This having been referred to the same auditor, the matter was again suspended for the reason given above. .</p> <p>On the 27th June, 1843, he again held a meeting, and Okie claiming as insolvent trustee of J. K., and J, B. appeared and claimed the whole fund received by Wilson, on the ground of the invalidity of the assignment.</p> <p>On the 18th April, 1844, the claim was again renewed in the additional capacity of bankrupt assignee of J. A. K.</p> <p>A bill of interpleader having been filed by the assignee, it was agreed on the 16th October, 1844, between himself and Okie as trustee and assignee in bankruptcy, "that the bill should be withdrawn, and no objection taken to the claim by Okie before the auditor, on account of want of jurisdiction in the court or auditor; that the credits for the $9689, dividends actually paid before Okie’s appointment, should be allowed, and that the assets remaining, if finally decreed to be paid over, should remain in Okie’s hands, subject to the lien of attachments laid on them in the hands of Wilson.</p> <p>For the purpose of showing proceedings by non-releasing creditors against the assignment, Okie gave in evidence records of attachments in execution by McKee, Hennessey, and several others, in 1839, 1841, and 1844, and also an action commenced by Okie as assignee and trustee against Wilson, in June, 1844.</p> <p>On this state of the facts, the auditor awarded to “Okie, trustee, &c.,” the balance of cash in the hands of Wilson, including unpaid dividends on the former accounts, and the specific funds held by him, subject to the attachments laid on the bank of deposit.</p> <p>This report having been confirmed, Wilson appealed, as has been stated, to this court, who referred it again to . an auditor. Before him, Wilson claimed to pay over the funds in hand to Okie, and the releasing and preferred creditors objected. The new evidence given before this auditor was merely to show that a watch which had been purchased by J. A. K. shortly before the assignment,-was purchased for a friend in the west. On the report of the auditor, awarding the unpaid balance, and the residue of the assets to “ Okie, trustee-of Knox, Boggs, & Co.,'appointed under their petition in insolvency,” exceptions were filed by the releasing and preferred creditors:</p> <p>1. Because the auditor exceeded his authority in reporting the fund invested, and the residue of the assets to the insolvent assignee.</p> <p>2. Because he erred in deciding against the validity of the assignment, and the confirmation by J. A. K.</p> <p>3. In not deciding that Okie and the non-releasing creditors had lost their rights by laches.</p> <p>> 4. In making the same report as was made by the former auditor, which was set aside by this court.</p> <p>5. Because he erred in deciding on facts which should have been decided at law.</p> <p>There is but one objection to this assignment: the omission of J. A. Knox’s seal; if that were there no question could arise. We undertake to show an equivalent—first disposing of the question of the 'unpaid dividends. These were awarded by an auditor, and the account confirmed by the Common Pleas in 1841, before any adverse claim was set up. That decree remains unaffected, not having been appealed from, and is in full force at this time.' Under the act of 1836, (assignees,) §§ 28 and 36, it is conclusive, and all matters therein decided upon are closed for ever; certainly as to collateral proceedings. This, by § 33, is of equal effect with a decree of the Orphans’ Court, and therefore enforceable by attachment; nor could Wilson, in any future proceeding thereon, set up'any defence. In Dyott’s Estate, 2 Watts & Serg. 557, and Okie’s Appeal, 9 Watts & Serg. 176, it was held, that the fact that no exceptions were filed to the report, prevented the parties from ever objecting. ■ Gray v. Bell, 4 Watts, 411, impliedly decides this question.</p> <p>On the main question. We'contend the assignment is valid: 1. Because the alleged defect was cured by the ratification of J. A. K., and 2d. it was purged by an actual surrender of all his private'estate. That if voidable, it cannot be avoided to the prejudice of releasing creditors, because they have acquired rights as purchasers for value before there was any election to avoid it; because the non-releasing creditors, and their representative Okie, are estopped by supineness; and have no superior equity which is essential to obtain the aid of the court in favour of a particular creditor.. . That the present complainant is barred by the statute of limitations ; and lastly, that in this proceeding he cannot recover, though Wilson has no right to hold for his cestuis que trúst.</p> <p>The ratification. The deed purports to pass J. A. K.’s private estate. Two months before the creditors were called upon to release, he affirmed the deed by the letters of the 2d and 3d of June, and the power of attorney, and he would be for ever estopped by acting as he did, under a power derived from the- assignee, The releasing creditors, if they had notice of the defect in the instrument, had also notice of these acts of ratification, and might have acted on the faith of them. It is well settled, that a ratification of an act in the name of another, without his authority, relates to the date of the act itself; Story on Agency, § 242; nor according to modern cases there cited, is it necessary that the ratification should be under seal, § 244. [Rogers, J.—Does the power authorize the transfer of the private estate?] I think it does: the first clause having given every possible power as to the partnership effects, the latter was intended to cover any other acts which might by chance be required. [Rogers, J.— Must we not construe that by reference to the “above clause?”] That would run counter'to the rule that every word’must have effect. [Per Cur.—Such a construction would generally produce mischief.] The party himself has put his own construction on it, by acting under the deed conveying his property. That such acts may be thus ratified, is settled in Pearpoint ». Graham, 4 Wash. C. C. Rep. 232, and it is there said the general creditors cannot object. That a sealed instrument may be subsequently ratified by parol is well settled. Gram «.' Seton, 1 Hall, 262, which hás received the sanction of this court. Cady v. Shepherd, 11 Pick. 400; Bond «. Aitkin, 6 Walts & Serg. 165; Darst «. Roth, 4 Wash. C. C. Rep. 471.’ It was well recorded, for the acknowledgment by one grantor is sufficient, §§ 2 and 17 of the act-; and'there maybe a subsequent perfecting of the deed as by delivery, Harrison «.'Trustees, .12 Mass. 461. If there be a presumption of property as has been , said, that cannot be extended beyond personalty, and as to that, the authority to assign need not be in writing,; though the assignment'must, by implication, from the necessity of recording. Story on Agency, § 50.</p> <p>The only'private estate proved in .the case was the pew,, and that is not an article of property within the rule of Jaw—[Rogers, J.—I think that was (he opinion of a majority of the court,]—it was worthless, being subject to any amount of rent the trustees chose to place on it. We have, moreover, shown it went into the account; the proceeds are credited. In Thomas «. Jenks,'5 Rawle, 221, the existence of other property was established under a commission from this court, and in Fassit «. Phillips, 4 Whart. 409, the omission of properly valueless by reason of encumbrances was decided to be immaterial. There are many cases of contested assignments in which that feature appeared, and this is strong evidence of the understanding of the profession; they are in 5 Watts & Serg. 145; 10 Watts, 309, and others.</p> <p>But the rights of releasing creditors cannot be affected. The fund now in question did pass by admitted competent authority, and at most, the deed being voidable, and no attempt to avoid it having been made until 1844, intervening rights are saved. Creditors only could do this, and until Okie became bankrupt assignee of the last partner, he could not act in their rights. As trustee of the partners his right was to their surplus. During this delay, the acts permitted by the creditors cured the defect. The releasing creditors electing-to come in, gave up all other claims; the non-releasing took their chance of future assets, and by this ex post facto consideration the assignment is supported; Adlum v. Yard, 1 Rawle, 163 ; Pearpoint v. Graham, ut sup.; Petrie «. Clark, 11 Serg. & Rawle, 377; for being voidable only for constructive fraud a. purchase cured it, and these creditors are purchasers; Coe v. Hutton, 1 Serg. & Rawle, 398; it is an accord and satisfaction; Watkinson ». Inglesby, 5 Johns.. 386; Hatch v. Smith, 5 Mass. 42, 50; Twelves «.Williams, 3 Whart. 494; 10 Watts, 312; Andrews «. Ludlow, 5 Pick. 28. A different view from that of our courts as to the effect of an omission, not a reservation, of part of the property is taken in Canal«. Cox, 6 Greenl. 395, and the reasoning appears in Angel on Assignments, 119—137. [Gibson, C. J.—The condition is, you give up a part if you get the rest; that bears fraud on its face. The creditor is put to his election, and that for the very purpose of securing a part of the debtor’s estate to himself.] The authorities show that these creditors having given value, the deed cannot be avoided under the statute. Sterry «. Arden, 1 Johns. Ch. Rep. 261; S. C. 12 Johns. 5.36; Daubeny «. Gockburn,’ 1 Meriv. 638, 643. [Rogers, J.—Our cases are that a creditor not coming in may treat the deed as not existing.].</p> <p>Laches..' This case is in Chancery, and equity must be done to entitle complainants to equity; there must be vigilance to prevent others being, injured. [Rogers, J.—To whom were they to give notice?] They might have filed a creditors’ bill, or taken out executions. This principle has been acted upon in Stewart v. McMinn, 5 Watts & Serg'. 100, and in Okie’s Appeal. The debtors paying the assignee, and the assignee paying dividends, áre protected in acts done before hostile proceedings, and why not creditors releasing their debts, three months having elapsed without any movement? This was applied in Thomas «. Goodwin, 12 Mass. 140, in the case of an assignment palpably fraudulent. In Bradford v. Tappan, 11 Pick. 76, the court considered the releasing'creditors as having acquired liens at the date of their release, the assignment being set aside. Wright v. Stanard, 2 Brock, 311. [Rogers, J.—Are not these cases in which the defect did not appear on the face of the deed? -- Gibson, C. J,—• ■If notice affects them, of course it. opens the whole case, even as to what has been paid over.] And you have protected them thus far.</p> <p>What notice had they that a seal was wanting ? and the presumption is, they had notice of the ratification. The conflicting- decisions preclude a decision that they, laymen, were bound to decide. The assignee had equal notice, and he is protected because he had parted with the fund. So we with our rights. In accordance with these cases, it is said in Wakeman v. Grover, 4 Paige, 23—42, that until a lien is fixed the assignment is valid.</p> <p>They must show a better equity. This is a first principle of equity; we are' equally creditors; are in possession, and prior in time. Story’s Eq. §§ 59, 381—434, on such a point is referred to, authorities not being required; it was applied in Beach v. Viles, 2 Peters, 675, where, there being merely constructive fraud-, the assignee retained for his own debt.</p> <p>Can Okie claim? He claims as insolvent trustee, and as such only the auditor awarded to him. His rights in this character are under the § 36, act 1836. This contemplates actual fraud, not constructive, under 13 Eliz. There is no actual fraud pretended here, it is rather a case of mistake or accident, in which equity would re Heve. He was insolvent assignee of the partners on separate petitions, and as such only deals with separate interests—the resulting use ; here the funds are of the partnership. Taylor v. Fields, 4 Ves. 396; 2 Johns. 282; 4Yeates, 478; IGall. 367; Doner v. Stauffer, 1 Penna. Rep. 198. In the latter case the separate interests of all the partners were sold under execution, and the purchaser was held to take, subject to the claims of the joint creditors. -Okie, therefore, at this time represented the' separate interests only, or for the first time that of the firm, in-1844, under the bankrupt law, as assignee of the surviving partner, which J. A. K. was in contemplation of law. Under the bankrupt law he has no right, for that has no effect on acts done prior to its passage. Weiner v. Farnum, 2 Barr, 146, The act alone gives the assignee any such authority, and refers only to frauds against its provisions—acts done in contemplation of bankruptcy ; as to other matters, h'e is under the common law. By that the assignee succeeds to the rights of the assignor, and he being estopped) so is the assignee. Seal v. Duffy, anti, 274. The saíne was ruled in Vandyke v. Christ, 7 Watts & Serg. 373. [Rogers, J. -—That was a voluntary assignment. An assignee by operation of law is in the situation of creditorshaving judgments.and executions.] That is so under the insolventilaw, which has been disposed of; but by the bankrupt law no such rights or powers are- given.</p> <p>' Statute of limitations. This is fixed by the bankrupt law at two years after the decree, and this elapsed before the appearance before the auditor, and that was nothing,'for this court turned him out. [Rogers, J.—What is an adverse interest within the act?] We know what it is in ejectment, and here we are im possession and claim to exercise ownership. [Rogers, J.—No ;you only claim to' collect and pay debts.] Wilson is our trustee; his acts are ours;' we have been selling, collecting, paying) and filing accounts, and they claim under this act that which urn, for more than nine years, have considered and treated as our own. But We are protected under the statute. There is sometimes a question whether equity will adopt it. In May, 1837, we acquired title; from thence until June, 1843, there was nothing to suspend the statute, nor was that appea.rancé of-any' effect' then, under the decision of this court: during the nine years which have elapsed, some of the actions mentioned in the act might have been brought. Story’s Eq. ■§ 529.; Elmendorf v. Taylor, 10 Wheat. 172; Miller v. McIntyre, 6 Peters, 66. There, is no trust here between Wilson and the complainant, it was under the deed for the persons, therein provided for, and any one of them may plead the statute. 1 Rus. & Myl. 349. Clearly, then, Okie cannot recover in this proceeding.</p> <p>There are no funds in question in this case but those received by Wilson from the estate of K., B. & Co., and by him claimed to be paid over to us. These were received within four years of this time. Assuming him to be a trustee under the assignment, is he justified in asking to pay it to Okie ? That is the question. Is there, can there be any doubt about it after the decision in Okie’s Appeal ?</p> <p>When originally before the auditor we construed Dyott’s Appeal, to vest.the jurisdiction in that court, and by that form of proceeding; but being anxious to terminate litigation, the agreemenlwas made to give the jurisdiction. Wilson received a consideration' in being protected in his distribution of $9000, without the sanction of a decree, and Okie confirmed this in consideration of waiving the objection' on account of jurisdiction. We never did desire to compel Wilson to refund; but appeared to give a right of action against those receiving mala fide, under the pretence of being creditors. We do not desire to hold him liable for any thing paid before our •rights accrued.</p> <p>Have we a standing here ? This court did say in Okie’s Appeal that Wilson might elect to pay to us. This court, in Hénnessey v. The West. Bank, did decide that this assignment was, under the 13 Eliz., utterly null and void, for matters which were on the face of the instrument, which could not be amended by any matter. So in Missouri. It is also settled in Englebert v. Blanjot, 2 Whart. 240, that the insolvent trustee could recover from the assignee, or under a fraudulent assignment. Okie held that office, and subsequently that of assignee in bankruptcy. If Hennessey v. The West. Bank needed support, it would be found in this, that though this deed purports to pass partnership assets, it is not executed in the name of the firm. ■ But what was that decision? it was that the' creditors called upon to release were not required to inquire whether the non-executing partner had assets or not. The risk was not to be put on them. It Would open the widest door to collusion and fraud. The assignor would retain .the power to destroy the assignment, or uphold it at his pleasure by communicating to non-releasing creditors the fact that property was omitted, and thus having obtained a discharge, deprive the releasing creditors of the consideration therefor. Nor is there any fact to be tried here. The assignment does not purport to convey J. A. K.’s private estate, being unexecuted by him.</p> <p>It is said Hennessey v. The West. Bank is new law. The principle is found in McClurg v. Lecky, 3 Penna. Rep. 83, 93; the reservation of any benefit avoids the whole conveyance. In Johnston v. Harvy, 2 Penna. Rep. 92, a probability of such a fact was considered sufficient to put purchasers on their guard. Here the instrument speaks of J. A. K.’s separate estate, and makes provision for the payment of his debts out of it. In Thomas v. Jenks the fact of •separate property appeared affirmatively, but the case is not put on that, but on the unlawful imposition of a choice which may prove unfortunate. So in Passmore v. Eldridge, 12Serg. &Rawle, 201, it was held, creditors are not bound to inquire whether a vague description was intended to carry specific property.</p> <p>Nor will the releases avail the creditors; tile deed is void in toto, and cannot support any thing. McKee v. Gilchrist, 3 Watts, 230. [Bell, J.—There appears to have been actual fraud there.] Serving v. BrinkerhofT, 5 Johns. Ch. Rep. 330, was similar to this, and there was no actual fraud and no evidence of other property. Austin v. Bell, 20 Johns. 442; Hyslop v. Clarke, 14 Johns. 465; Mackie v. Cairns, 5 Cow. 580, show that the existence of releasing creditors is an immaterial fact. Nor is there any distinction between legal and actual fraud. Thompson v. Lee, 3 Watts & Serg. 480. The statute avoids for either equally. Seal v. Duffy shows that it was a mistake, in Englebert v. Blanjot, to consider the non-recording a fraud. It is a singular fact, that the only case in the books, apart from Hennessey v. The West. Bank, where releases were demanded and all the property passed, is Burd v. Fitzsimmons, 4 Dali. 76, and it was there held to avoid the instrument. In Thomas v. Jenks it was assumed that Lippincott v. Barker, 2 Binn. 174, had decided the contrary, and that releases might be stipulated for. But there the releases were executed at the time of the assignment. Fassit v. Phillips, so far as it goes, is against us; but there the question was simply on the dissolution of an injunction on an answer denying the facts set out in the bill. There is yet another ground here; a release of J. A. K., not a party, is demanded as a condition precedent to the right of reaching the assets. If affirmative evidence of property is required, it is in the case. There was a pew, it brought money, and it is decided to be property for creditors. Wake man v. Grover, cited on the other side ; 3 Kent’s Com. 402; 10 Mass. 323; 16 Wend. 28, 32; 5 Met. 127. Nor is there any ratification by the power of attorney. It would not be construed to allow a conveyance of the private estate by any rule heretofore known. Nor has the attorney done any act under its authority. He has not pretended to execute the deed for J. A. Knox. It is well settled that the power must be executed in the name of the principal. The signature or mode of execution determines the question whether 'it be the act of the principal, or the private act of the attorney. Heffernan v. Adams, 7 Watts, 121; 2 Watts, 83; Meyer v. Barker, 6 Binn. 228; Peters v. Condron, 2 Serg. & Rawle, 80. The instrument must be a recordable one; for without this, there would be a power reserved to every creditor to avoid it at his pleasure. Nor was it ratified by the letters; they do not go beyond the power of attorney. Nor had the writer the acts already done in his mind at the time. Even if so, creditors are not to be put to this.</p> <p>A subsequent parol ratification of an act under seal is insufficient. 14 Serg. & Rawle, 331; 9 Wend. 56,68; 20 Wend. 251. The true doctrine is in 4 Dali., that stipulations for a release are fraudulent. [Rogers, J.—It is not necessary to argue that; it is too late to retrace our steps.] But the true ground of objection was not taken ■before ; the deed does not pass the partnership assets. The partner Can do so merely as agent of the firm; and to bind it he must execute in the name of the firm. Story on Agency, § 147—-149; Clarke v. Courtney, 5 Pet. 319, 320; 4 McCord, 534 ; 6 Watts & Serg. 165 ; Moddewell v. Keever, 8 Watts & Serg. 63. No cases support the rights of releasing creditors as contended for, they are embraced in three classes of cases. 1. An outstanding secret equity. 2. A secret fraud in the assignor. 3. Where there is fraud on the face of the instrument. In the last class of cases is Thomas v. Jenks, and the present; and without this, Knowles v. Lord, 4 Whart. 500, settles that such creditors cannot claim to be purchasers. Nor are they purchasers without notice: Johnston v. Harvy. [Gibson, C. J.— They had no more notice than the assignee already protected, because he had no notice that creditors would avoid it: So of the creditors.] The assignee is protected, because he must go on under his trust until he is stopped. Reed v. Dickey, 2 Watts, 465; Chew v. Barnett, 11 Serg. & Rawle, 392; Rogers v. Hall, 4 Watts, 359. We did elect to avoid the first moment we possessed the power. But another ground is contended for on the authority of Beach v. Viles. [Per Curiam.—We have recognised the same doctrine; as in the case of an administrator paying more than a rateable dividend; if bona fide, it cannot be recovered back.] We do not seek to affect any payment so far as Wilson is concerned, but a creditor obliged to set up a fraudulent assignment cannot even retain for his debt. 4 Johns. 596. If the release was obtained by fraud, it would be void. If with notice, it is their choice. Okie’s right to take advantage of this fraud is settled. [C. J. You need not argue that: he has the same right as an execution creditor.]</p> <p>Is he such an assignee as may take advantage of this fraud ? If there be an assignee of one partner, and the other is out of the jurisdiction, or insolvent, such assignee may recover for distribution. Ayer v. Brastow, 5 Law Rep. 501. All these facts occur here. So that if he only represents the interests of two partners, he may recover. Barker v. Goodair, 11 Ves. 85 ; Smith v. Stokes, 1 E. 363. But now uniting the interest of all, he represents all, and therefore the partnership. Doner v. Stauffer, 1 Penn. 203. Story on Partnership, 442, 444.</p> <p>■ Laches. There was no one appointed until 1842; those named refused. Within twenty years the right is perfect against the assignor. Power v. Hollinan, 2 Watts, 218, and consequently against volunteers..' If there can be a confirmation, it requires a valuable consideration, and then the deed is confirmed only as to the party receiving the consideration. Adlum v. Yard, ut sup.; Chamberlain v. McClurg, 8 Watts & Serg. 31. The money now claimed is out of this question, not having been received until within a few months. Nor can a trustee, ex maleficio, set up any thing but confirmation. Story’s Eq. § 1265. (On the statute of limitations the court refused to hear argument.)</p> <p>As to Sheepshanks’ claim, the money was not his specifically; it was kept as a general balance, not separated in any way. The decree is reversed, for the court below permitted us to appear and claim this very fund, and affirmed the award in our favour. [On the subject of the execution of the deed, Mr. Price here cited, 2 Black. Com. 306, that signing is not essential, and that the execution was properly by each partner separately. Perk. §§ 117, 134; 13 Yin. Fails, H. 2; 3 Lev. 1; 2 Stra. 764; Touch. 56; Regina v. Goddard, 3 Salk. 171; 2 Raym. 920 ; Comb. 477; 2 Salk. 462. An agreement by a party to the indenture makes him liable on the covenants, Com. Dig. Fait, A. 2, C. 2; Co. Litt. 231 a.</p> <p>The exceptants are claiming contrary to the rule that equality is equity; and their right is founded on a nominal consideration merely, as their releasees were insolvents. If the assignment is fraudulent, they are parties; if they are not parties to the fraud, their releases are void.</p> <p>The first exception is counter to their own agreement, as well as to the decision of this court. That was made by the legal owner, the authorized agent of the releasing creditors, and was binding on them until he was removed by them.</p> <p>The second is but the curtain behind which they seek to review Hennessey v. The West. Bank. That case was but carrying out the principles of the 13 Eliz., and it is most important to sustain it, there being no other remedy. The facts for the first time appeared for the .application of the rule. One partner’s entire interest was excluded. If this is allowable, but one partner need act, and all the others will be free. The deed is grossly defective on its face; it falsely recites that a party joins in it who never did, and it claims to assign property which never passed. No one of these creditors would have been satisfied to purchase a house by such a deed, so manifestly incomplete. Nor is the decision in conflict with Fassit v. Phillips; that was an interlocutory order, the question on the deed being reserved for final decree. There is no pretence of ratification by the power, for no such act as is therein referred to had been done. Nor would a ratification after registry be sufficient. The object of the act was to suppress fraud, to enable creditors to have the instrument before them, and to judge by inspection of its merits.</p> <p>3. Laches. This is a .doctrine of equity to protect purchasers, &c., from dormant, secret, or stale claims, of which the presumption is that the means of defence are lost; it is applied, not as a bar, but as evidence by the court; 5 Johns. Ch. Rep. 551; Laussat’s Fonb. b. i. chap. 4, § 27; it involves an idea of repose from neglect, and is rebutted by any acts of opposition, its application is' seen in 2 Ch. Rep. 114 ; Gilb. Eq. Rep. 224; 5 Johns. Ch. Rep, 551; the case here is very different, it is to effect a new acquisition, not to sustain an old one. It is to enable the releasing creditors to divide a new fund. It is to support a deed fraudulent in law from a physical defect staring every one in the face; can three or four years do this ? What was the time ? • In 1837 the deed was made, in 1839 it was attacked; and it has been pressed vigorously in every variety of form from that day to this.</p> <p>4. As to Sheepshanks’claim, By the decision of this court in Okie’s Appeal, Okie was in no way affected by the décrees in favour of Sheepshanks, for he had no right to oppose them; they only affected the parties thereto; of course Wilson would not be protected in paying after notice of a defect in his title. What was the report?—A calculation of an auditor based on erroneous facts. Is this a judgment, a decree which cannot be gone behind—this private proceed-1 ing between two persons as to their respective rights; is this conclusive on a stranger to the whole matter claiming adversely to them both? This same auditor at a subsequent period restated this account, and his award is the conclusive one, if any, being the last.</p> <p>This is an assignment of partnership, and separate property, executed by two partners out of three, and stipulating for a release. In Hennessey v. The West. Bank, the opinion delivered affirmed that such an assignment was void, even though it were proved that the non-executing partner had no property. The judgment in that case does not necessarily affirm that doctrine, as the same judgment must have been given, if the court had been of opinion that the burden of proving the non-executing partner’s want -of property, lay on those who supported the assignment. If this be so, then it is apprehended that in this case such -want of property has been abundantly proved. If, however, the doctrine of the learned judge who delivered the opinion in Hennessey v. The West. Bank, be affirmed by the court, then certainly a very important question in this case must be decided against us. But if that doctrine can be shown to be inconsistent with all previous cases and principles, it may be expected that the court will reconsider it, especially as it comes up again in the same controversy, has not yet passed into the body of the law, and there are no rights acquired on the faith of it, to be affected.</p> <p>1. What was the law prior to Thomas v. Jenks ?</p> <p>2. What was the law under Thomas v, Jenks ?</p> <p>3. Is the doctrine laid down in Hennessey v. The West. Bank, inconsistent with the law as theretofore established ?</p> <p>1. On this first'point, the citati.on of all the authorities would be interminable : the five cases will therefore be referred to, which were selected and quoted in the opinion delivered in Hennessey v. The West. Bank; they are McClurg v. Leeky, 3 P. R. 83; Passmore v. Eldridgé, 12 Serg. & Rawle, 198 ; Adlum v. Yard, 1 Rawle, 163 ; Johnston v. Harvy, 2 P. R. 82, and McAllister v. Marshall, 6 Binn. 338.</p> <p>McClurg v. Lecky, was a reservation of a salary to the assignor, out of the assigned estate. Johnston v. Harvy was a transfer by a father to his son reserving an annual support out of the estate conveyed ; the gist of the case was that a part of the thing purporting to be assigned was shielded from creditors.. In Passmore u. Eldridge, there were two objections: 1. The uncertainty what passed, and, therefore, that gross frauds might be-thus covered. 2. The secret reservation of part of the property assigned. Adlum v. Yard does not touch this case: the point was, an illegal prohibition to the assignees to prevent a sale of the estate till a future period. .The amount of the case is, that a part did not bona fide pass, as it was pretended. • That was but the common law, as indeed we generally go under that, for by the statute the parties, are criminally responsible. In McAllister v. Marshall, there was a re-transfer by the assignee for the wife of the assignor •—the original assignment authorizing a compromise, and the court held the whole to be one transaction so that, like the other cases, the property did not in fact pass, there being a secret agreement for a reconveyance. This was simply under the common law. Look to that law—I shall cite but two cases contemporaneous with our early decisions, familiar to the lawyers óf that day, which show, not a new application of an old rule, but the settled understanding of what the law was. .Estwick v. Caillaud,- 5 Term Rep. 42.0; Ingliss v. Grant, Ibid. 530. The first of these cases shows, that an assignment for creditors, which would otherwise have been fraudulent, was supported, because it was of a part, and not of the whole. The latter was a commercial case ; riot affected by the bankrupt law / one partner assigning after the death of the other, and stipula ting for a release: Lord Kenyon refused to hear counsel in ■support of the assignment. It is said, that Burd v. Fitzsimmons is the only case in which the question of the validity of stipulations for releases was raised, and there it was decided in the negative. On page 80, it is expressly said, there was no release stipulated for in the assignment. Nor does any one of the judges there give that as a reason for his decision; on the contrary, (page 85, in-note,) it is said to have been agreed by the counsel on both sides, that such releases were usual and common, and Smith, J., said it had been frequently so decided in the Supreme Court. This point had nothing to do with the case ; it was the latent fraudulent use for the assignor that affected it. The question of the validity of stipulations for a release was afterwards brought up in Lippincott v. Barker, 2Binn. 174, solemnly argued, andit has till now been supposed finally decided. In Estwick v. Caillaud, there was a reservation out of the fund assigned, but because the assignment did not include the whole estate it was sustained. That was the law as we received it. This case was unaffected by the bankrupt law, for the assignor was a peer. So of Ingliss v. Grant, the party there being domiciled in India. There one partner assigned, the other being dead, to certain joint and separate creditors, who covenanted if he would assign certain property, they would execute a general release. The estate of the deceased partner was of course excluded, and the court refused to hear argument in support of the assignment. King v. Wattson, 3 Price, 6, is to the same effect.</p> <p>Thus stood the law prior to Thomas v. Jenks ; not a trace of the doctrine that an omission of part was fraudulent; on the contrary, it received favour, as evidence that the assignment was not colourable, the part retained being left open to creditors. Thus it stood in Pennsylvania and England. There is not a case to be found anywhere prior to Thomas v. Jenks, that a partial assignment, stipulating for a release, was bad. Seavingu. Brinckerhoff was cited; what is said in that case- on this subject was but an obiter dictum,, and was .repudiated the first time- it was cited in the court in which it had dropped from a very learned judge—Wakeman v. Grover, the counsel there said : << Our case is stronger, for here there is no property left for those not coming in.” 2. What then -was decided in Thomas v. Jenks ? That if the separate estate of the partner did not pass, then on proof of their being separate estate, the assignment was void; Seaving v. Brinckerhoff was before the court, and on that what did you do ? Send a commission to take evidence and inquire whether or not there was property omitted. You put the burden of proof on tbe party alleging the fact, that there was separate property. You say, “it depends on a single question of fact, which amply appeared from the report of the commissioner.” Was it decided from facts appearing on the .face of the instrument ? no; extrinsic proof was required. Thomas v. Jenks was understood accordingly. It came under consideration in two subsequent cases, Bayne v. Wylie, and Fassitt v. Phillips. [Ch. J.—Permit an interruption. The English commercial cases are all within the bankrupt law; you have no cases there of joint and separate effects passing.] Ingliss v. Grant is such a case, and it is laid down at the start by Lord Kenyon, that the bankrupt law has no operation. [C. J.—Was it partial ?] Yes ; by one partner only; the other one dead. Bayne v. Wylie, 10 Watts, 309, was a case stated in an assignment professing to pass partnership effects alone, and a release stipulated for. This court sustained it. Why ? It was agreed that there was no property, which did not pass by the assignment: that shows the understanding of counsel, and the decision showed the understanding of the court, that the question whether there was separate property, was a mere question of fact. Thomas v. Jenks was one of the cases relied on to overturn the instrument.</p> <p>In Fassitt v. Phillips, the fact that there was property omitted was confessed in the answer. It was a worse case than Thomas v. Jenks, because the difficulty of choice was enhanced by a double uncertainty. Certainly Fassitt v. Phillips shook, or very materially limited, Thomas v. Jenks. The fact that property was omitted, being confessed, of course, no question could rationally arise, of what the court would do, if that fact had not been confessed. The result is, that Thomas v. Jenks was clearly understood (and so treated in two succeeding cases) to require affirmative proof to be made by the party seeking to overturn the assignment by reason of the alleged existence of property which did not pass by it.</p> <p>3. Hennessey v. Western Bank is directly inconsistent with all that preceded it. It lays down, for the first time, the doctrine, that even proof that no property existed which did not pass by the assignment, is insufficient to sustain the instrument. It is the establishment of a new law, and not the administration of the old.</p> <p>Most of the other points made by the appellants'appear not to have been sufficiently examined, and they are, therefore, left upon the opening argument. It is impossible to conceive how the objection arising from lapse of time can be got over, except by annulling an express provision of the bankrupt law, under which Mr. Okie claims.</p> <p>Supposing the law is not as contended for by my colleague, and all the property did not pass. I submit, the stipulation for a release was a condition subsequent, and that it was void, not the instrument. On this I refer to the argument in Weiner v. Farnum, 2 Barr, 146. Look at the effects of the contrary rule: what have the releasing creditors done to forfeit their rights? Released their debts, under a mistaken supposition that the property had passed. The question is not, whether they were purchasers under a statute, but whether they have a right to keep what has been given to them, and our law is expressed in Lippincott v. Barker, where it was conceded that creditors releasing before executions levied, would have been protected though the assignment had otherwise been invalid. I also add, if J. A. K. was not a party to the instrument, there is no stipulation for a release to a party to the deed whose property did not pass, but to a stranger.</p> <p>Ingliss v. Grant differs in many respects; among others, it requires no release.</p> <p>Page 532 shows the creditors were obliged to join in a composition deed. I suppose your honours know what that means.</p>

In equity. Jan. 18, 19. Anthony Baker filed a petition, setting forth that John Williamson, by deed, dated the 9th of August, 1841, shortly before his death, conveyed certain messuages, &c., and all his other property, real and personal, to Adam B., Azariah L., and Enos Williamson in fee, in trust, with verbal directions as to the distribution of a portion thereof.

<p>’ Jan. 20. This was an application by Fisher, the landlord of defendant, for leave to take the amount of rent due him, out of the money paid into court on an execution in the above case.</p> <p>The defendant -was a painter of oil-cl,oths, and occupied two large buildings in the neighbourhood of the city, built for the.purpose of this business, and called an oil-cloth manufactory, for which he paid a rent of $500 per annum. The goods levied on and sold were large wooden blocks, costing about $1500, with which the prints were made on.the cloths stretched on large frames. The defendant had a number of workmen in his employ, and to énable them to be .paid out of the proceeds of this execu'ion,the sheriff having refused to sell without indemnity, he signed a paper, authorizing the sale for their benefit.</p> <p>The landlord’s claim was for the amount of, one year’s rent, ending July 1. The sale was in December-.</p> <p>The question arises under the act of April 22, 1846, p. 477, exempting from levy and sale “the necessary tools of a tradesman,” to an indefinite amount. The property here sold is not the, tools of a tradesman, but the machinery of a manufacturer, and does not come within the meaning and intention of the act. A tool is denned in Johnson’s Dictionary to be, “ any instrument of manual operationand a tradesman, “ a shopkeeper.” The distinction between a tool and a machine is well settled in popular use. A tool is an implement that may be used directly by the hand, without the aid of other power, as a saw, an axe; whereas, a machine is more complicated, and requires the intervention of artificial power, applied either by the hand, or some stronger force; as a power-loom, a printing-press, a wheat-thresher, a corn-sheller, &c. Neither can a manufacturer, occupying large buildings, and employing a large capital and numerous workmen, be called a tradesman. In this case, the building was used and specially adapted to the purposes of an oil-cloth manufactory. The property sold is the apparatus and machinery necessary for such a factory. They are an integrant part of it, without which it cannot be used. An oil-cloth mill without blocks and frames would be as incomplete as a rolling-mill without rollers. In Voorhis v. Freeman, and Pyle andPennock, 2 Watts & Serg. 116 and 390, these last were held to be not chattels, but fixtures, part of the realty, and passing as such by a mortgage. Ji fortiori, they cannot be regarded as tools. They are like the type of a printer, or the patterns of a calico printer.</p> <p>The act never intended to exempt from execution machinery employed in manufactures. It is merely an extension of the act of 1836, which limited the value of the property exempted to $30. Large capitals are invested in machinery, which, by this construction, might be protected from creditors. The machinery in an oilcloth factory of this size is worth $1500. It is absurd to suppose the legislature intended that property to such an amount should not be liable for debts.</p> <p>The defendant is a manufacturer, and intended to apply the proceeds of his necessary tools, reserved to him by the act, to the payment of his workmen. He says, in his examination, it requires $1000 or $1500 to purchase these implements; he does not know whether manufacturer or tradesman is his most proper appellation. But there is a fatal objection as to the time of the claim for rent; the preference is for one year’s rent, and that means the last. [C. J.—I think it has not been so held.] This man does not make the cloth, he only paints it, and such persons who get their living by manual labour, for which tools are necessary, were ■ intended to be protected.</p>

<p>Proceedings stayed, until costs of former suits paid; including as well the costs of the officers of the court as those of the parties, though no bill taxed. The first suit was in the Supreme Court, and verdict for defendant given at Nisi Prius; and upon a motion for a new trial, the verdict was sustained upon the point decided by the judge at Nisi Prius, and upon another, technical in its character, raised upon the argument in the Supreme Court, and judgment was rendered for defendant. The second was in the District Court, and a nonsuit ordered by the court after plaintiff had concluded his evidence. On this motion, the court received a certified copy of the docket entries from the District Court!</p>

From the District Court for the city and county of Philadelphia. Jan. 22. Appeal from the decree of distribution of the proceeds of a sheriff’s sale of real estate in the county of Philadelphia, sold under an execution in the above case. On the 23d December, 1842, A. Reigart, the defendant, resident at Lancaster, conveyed to the appellant all his real estate situate in the county of Philadelphia, “ in trust agreeably to a declaration of trust this day executed by” appellant.

In error from the District Court for the city and county of Philadelphia. Jan. 22. Case for erecting a fence across a way to a privy, “ which plaintiff and all those whose estate he hath in a lot and house have used.” A case was stated by agreement; if the court should be of opinion that the use of the privy passed as appurtenant, judgment to be given for plaintiff.

<p>... Case lies by one having a right of way against an intruder without proof of actual damage.</p>

In error from the District Court for the city and county of Philadelphia. Jan. 26. Held: as we contend, that the act of 1836 is a full and complete system in itself; this appears from its arrangement. This remedy is given in peculiar cases. By the same act, a distinct provision is'made for corporations, and the remedies are distinctly slated. [Rogers, J.—Had the corporation a-farm,'could not a levy be made ?

<p>In error from the District Court for the city and county of Philadelphia.</p> <p>Jan. 26, 27. Assumpsit on a check drawn by plaintiff in the following words:</p> <p>“Mechanic’s Bank, Philadelphia, Jan. 10, 1845.</p> <p>Pay to J. G. or bearer, six hundred twenty-five dollars.</p> <p>.$625. ' Joseph Hill.”</p> <p>The defendant filed an affidavit of defence as follows :</p> <p>The plaintiff and defendant for several years past have been in the habit of lending money to each other, .they have had dealings also in merchandise, and each has loaned his paper to the other for his accommodation. The result of these transactions was .that a note was given by the defendant (o the plaintiff for the sum of $825, which fell due on or about the 5th January, 1845, but it was understood and agreed at the time said note was given, (defendant often in like manner accommodated plaintiff,) that payment was not to be made oil the day the note fell due. ' When the note fell due, the defendant settled it by giving to the plaintiff $200 in cash, and a check for $625, dated January 10,1845, and it was expressly understood and agreed by and between the parties at the time the cash and check were given, that if the defendant so desired, the said check should be taken up by giving a note of defendant in favour of plaintiff, at four months for the amount, and the defendant paid the said sum of $200, and gave his check for $625 in consideration and consequence of the express promise and agreement of the plaintiff, so to give this defendant the four months’ credit in manner aforesaid. That this last arrangement of the $825 note and the agreement and promise of the plaintiff aforesaid were all one transaction, and occurred at the same time, and were carrying out the original contract made when the $825 note was given. That on the day the said check fell due, this defendant informed the plaintiff that he did desire that the said check should be taken up by his note at four months, according to the agreement before mentioned; and that on the same day and before three o’clock, he tendered to him, in accordance with said agreement, his note in favour of the plaintiff, dated January 10, 1845, payable four months after date, for the sum of $625, with interest, which note so tendered the plaintiff refused to accept in payment of said check then in his possession, but before the four months’ credit agreed in manner aforesaid to be given to this defendant had expired, the plaintiff brought this suit thereon.</p> <p>A rule for judgment for want of a sufficient affidavit having been argued, the court, on the 9th of April, entered on the docket: “ Defendant allowed to file a supplemental affidavit of defence, stating particularly the contract between the parties relative to the time of payment of the note of $825, mentioned in the affidavit of defence.” On the 21st, judgment was entered, defendant declining to file any other affidavit.</p> <p>Was there an agreement, to go to a jury? The only question is, was there a consideration ? There was a mutual accommodation, and part payment in cash, which are sufficient. Badnali v. Samuel, 3 Price, 533; 8E. 577; 1 Rawle, 391; 5 Whart. 500; 2 Whart. 253; 9 Watts, 273; 15 Serg. & Rawle, 162; 4 Watts & Serg. 263; 5 Whart. 95; 1 Cow. 359; 10 Serg. & Rawle, 75; 6 Watts, 498 ; 4 Watts, 448.</p> <p>The affidavit is evasive, and this clearly appears from the refusal to set out more particularly the original agreement and the fact that time was given, as is therein alleged to have been agreed. Any new agreement made at that time would be unavailing, for want of consideration. The part payment of an existing debt is no consideration for an agreement as to the residue. Cumber v. Wayne, 1 Stra. 426 ; Fitch v. Sutton, 5 E. 230; Harrison v. Close, 2 Johns. 448. 'Nor would the agreement to give a new note have any effect. It would be, until accepted, an accord without satisfaction. Cock v. Honeyhurch, 1 Mod. 69; Weakly v. Bell, 9 Watts, 280. But the agreement is a parol one, to alter an express written contract in its most vital point, and it is perfectly settled that such cannot be admitted in evidence. Hoare v. Graham, 3 Camp. 57; Free v. Hawkins, 8 Taunt. 92, (4 E. C. L. R.); Mosely v. Hanford, 10 Barn. & Cres. 729, (21 E. C. L. R.); Buck v. Fisher, 4 Whart. 516. Such evidence may be admitted to affect the consideration which includes the relation of the parties, but not the terms of the.agreement. Rossin v. Walker, 1 Stark. 361, (2E. C. L. R); Redoubt v. Bristow, 1 Cromp. & Jerv. 236. These cases were between original parties, or with .notice. ‘None, however, are stronger than Stroop v. Ransom, 10 Watts, 297.</p> <p>There was an agreement, and the question is, can it be enforced? Reasonable time in a promise to forbear is good, but if the time was too vague, it was reduced to a certainty by the parties in their second agreement. The party was not bound to answer a second time, and no inference is to be made from his refusal. [Per Curiam.—The court ought not to have put that on the record; the party had the right to rest on his original affidavit, and that is your case here.] A check is not such a mercantile instrument that the rules of evidence contended for can be applied to it; it-is often used as a memorandum merely. It is saying, if I have the money I will pay; if not, there may be a new arrangement when it is due. There being then a consideration for the agreement, it was proper to go to a jury.</p>

<p>From the Orphans’ Court of Philadelphia.</p> <p>Jem. 27, 28. A petition was filed by one of the devisees of Mason, who died in 1831, setting forth a devise of certain real estate to petitioner; that one parcel of this property was purchased by one Martin, subject to a bond and mortgage, payable on the death of Margaret Hesser, with interest thereon to her for' life; that Martin conveyed to testator subject thereto ; that a part of the principal and all the interest had been paid by testator, and proceedings were now pending to recover the residue.</p> <p>That testator had given a bond and mortgage on another lot, devised to petitioner, to one Haines, to whom he had conveyed certain other land to secure him against any claim of dower which might be made by the wife of testator j which dower. Haines had paid since the testator’s death, and the amount was now demanded of the petitioner.</p> <p>The petition further stated that the personal estate of testator, and the land owned by him, not specifically devised, was exhausted in the payment of debts, and averred the land so devised was in the hands of the devisees, subject.to a proportionate.part of the mortgage debts chargeable on the property devised to petitioner, -and prayed a decree of contribution.</p> <p>The answers of the respondents, devisees, denied the equity claimed, and set up a discharge of their lands by the lapse of five years from decedent’s death without proceedings to charge them, arid that the court had no jurisdiction to compel .contribution.</p> <p>• The court below (Parsons, J.) gave judgment, dismissing the petition on the ground that the land devised was not liable,to these - debts .as between the devisees.</p> <p>contended that the-land in the one case was purchased, subject to the mortgage, whereby the testator had made it his own debt; it being a part of the consideration money. In the other, the personal estate had been increased by a sale of property, clear of an inchoate right of dower, which was in effect transferred to the land of the appellant. That it was clear that the land of all the devisees was chargeable, in equal proportions, with the bond, and the existence of the mortgage for the purpose of this case was immaterial. He referred to Morris v. McConaughey, 1 Yeates, 9, and the S. C. when again before court, in 2 Dali. 189, as deciding the point. [Rogers, J.—There the parties against whom contribution was decreed wTere residuary devisees; the court put it on that.] He further contended that as all lands were assets for payment of debts, that, therefore, between specific devisees, there must be contribution.</p> <p>This is not an application by a creditor, but by one of several devisees. The cases are clear to the point, that a specific devisee is not bound to contribute to the payment of debts generally. And what equity is there in this particular case ? The testator has not-noticed the liens, and the presumption is, each parcel was to pass cum onere. In fact, the equities are in favour of the defendants, as the plainly declared intent of the testator by the devise would be destroyed by such a decree as is here asked for. The furthest the courts have ever gone has been in charging property not specifically devised. Apart from this, the liability of the lands of appellees is gone by lapse of time. Kerper v. Hoch, 1 Watts, 9, and a series of cases which follow that decision. [Gibson, C. J.—We will abide by the rule, but it was erroneously decided.] The court had no jurisdiction in the matter; it has but a limited jurisdiction.</p> <p>The court is a Court of Chancery of limited jurisdiction, it is true, but that comprehends all matters relating to the settlement of decedent’s debts, and of consequence the rights growing out of that act, 1832, § 4. This was intended to include all the powers previously vested by particular statutes. Commissioner’s Report on this act, 537. An instance of the former jurisdiction is found in Rhoads’ Estate, 3 Raw. 420, where contribution for debts among parties to a partition was decreed. Hood on Ex’rs, 101.</p>

Jan. 30. Griscom moved to set aside the sheriff’s return of service of a summons, which was in the following form; “ Served, by leaving a true and attested copy of the within writ at the counting-house of defendant, with his agent or clerk.” He said, the practice was .uniform in the District Court to interfere when the face of the return showed a defective service; and cited 2 Miles, 42, 164; 3 Yeates, 258; 6 Wharf: 66.

From the Orphans’ Court of Philadelphia county. Feb. 15, 16. Held: there is no power to bar or protect such future interest. This construction requires that or should be read and in the act of Assembly. The other exceptions are of inferior consequence.

In error from the District Court of Philadelphia. Feb: 16, 17. Patterson & Co. brought this action on a promissory note drawn by defendant and endorsed by Motz.

<p>-An award in replevin, finding property in defendant, the goods having been delivered to the plaintiff by the sheriff, is sufficient. *</p> <p>An award was filed on the 26th of February, in a leap year, the 17th of March falling on a Sunday: the plaintiff is entitled to enter his appeal on the 18th.</p> <p>The 21 Hen. 3 has no effect in this case.</p>

Féb. 19. This was an action against the prothonotary of the Court of Common Pleas, to recover the penalty of $50, under the acts of 1821.

In error from the Common Pleas of Philadelphia. Feb. 18. This was an action by a member of a charitable association to recover «the amount of six weeks’ benefit as a sick member.” The plea was non assumpsit. ■ The record showed that on the trial before Parsons, J., the plaintiff gave in evidence the charter of the association, which provided that a member should be entitled to receive $>6 per week when confined to his bed from sickness, and $4 when not so confined but unable…