Volume 4 — Rawle's Pennsylvania Reports

This case, which came before the court on an appeal from the judgment of the Circuit Court of Lehigh County, held by Huston J., in April, 1832, originated in a… Held: when James Greenkafw&s elected President, Jacob Clader,John Mohr, John Kerper and Jacob JVewhard, Managers, and George Graff Treasurer; and that on the 13th of June of the same year, by-laws were passed. No minute appeared in the book of any meeting from the 30th of July, 1813, to the 1st of September-, 1814.

<p>IK ERROR.</p> <p>Under the plea of payment to a scire facias, on a mortgage, with notice of special matter, if the defendant intend to insist on fraud in fact, it is not sufficient to allege in the notice of special matter, facts from which an. inference of moral fraud may he drawn. The alleged fraud should be charged in the notice.</p> <p>Covenants are to be construed dependent or independent of each other, according to the intention of the parties, and the good sense of the case; and technical words should give way to such intention.</p> <p>A. being indebted to B. in the sum of five thousand one hundred and seventy dollar's and forty cents, for tallow, for which he had given eight promissory notes of different dates, for different sums, payable at different times, gave to B. his bond for five thousand dollars, payable in one year from its date, accompanied by a mortgage on his real estate, and paid him the balance of the debt, one hundred and seventy dollars and forty cents, in cash. On the same day, an agreement in writing was entered into between tile parties, by which it was stipulated that B. should pay off' and take up all the notes as they became due, and deliver them to A. Tho agreement contained a covenant on the part of B. to indemnify A. against all claims and demands arising on the notes. The notes all came to maturity before the bond was payable, B. without having taken up any of the notes, which were all protested as they became due, and remained in the possession of different holders at the time of the trial, issued a scire facias, on the mortgage: Held, that the bond, mortgage and agreement, constituted one instrument, and that no recovery could bo had on the mortgage.</p> <p>How far time is of the essence .of a contract, and where non-compliance with an agreement at the time stipulated, will he relieved against,and where not.</p>

<p>This was an appeal from the decree of the Circuit Court of Lehigh county, affirming the decree of the Orphans’ Court of that county, in relation to the’distribution of the estate of Jonas Hartman, deceased.</p> <p>Jonas Hartman, died about the year 1829, leaving no issue, but leaving a widow, a mother and brothers and sisters. He was seized at the time of his death of a tract of land in Lehigh county, the title to which he derived in the following manner, viz: Jacob Hartman, the father of Jonas, was seized of the premises, and on the 6th of December, 1815, made his will, which after his decease, to wit, on the 12th of January, 1820, was duly proved. The will contained the following clauses: “It is likewise my will that my said wife, Eve, shall remain in the full possession of my plantation, until she marries, or my youngest child shall come to age, and in case my widow shall not marry again, then as soon as my youngest child then living comes to age, the whole of my real and personal estate shall be sold by my executors, and divided in equal shares between my wife and my six children, Sarah, Jacob, Esther, Elizabeth, Jonas, and Elias, but in case my widow shall marry again, then my personal estate only shall be sold, and my widow shall receive what the law will allow her, and no more, and my real estate shall then be sold when my youngest child arrives to age,” &c. “ And I authorise my executors when my youngest child is of age, to sell my real estate by public or private sale, and to make and deliver good titles for the same, and I hereby bequeath my whole estate and the reversion thereof to my six children, Sarah, Jacob, Esther, Elizabeth, Jonas, and Elias, and to their heirs and assigns forever. And after this is so done, my beloved wife Eve, shall have as her dower or ausbehalt, as long as she remains my widow, the lower room and the cellar under ihe room,” &c. &c. The testator appointed his wife Eve, his son-in-law, Jacob Seipel, and his son Jonas, his executors.</p> <p>Subjoined to the will was a paper without date or signature, in the hand writing of the decedent, Jacob Hartman, but not proved with the will, in which he says, “ And I again recommend to my executors that when the youngest child will be of full age, that then my plantation shall be appraised, and Jonas and Elias, shall have the first choice to accept the same if they choose to do so.”</p> <p>“ N. B. It is also my will that my wife Eve’s share or purpart, which she takes equally with my six children, shall remain on said plantation as long as she shall be my widow, and she shall receive annually, the interest thereof,” &c. “ And it is my will that my wife</p> <p>Eve, shall take a mortgage or security on my plantation for the time she shall remain my widow, and have the same recorded,” <Sic.</p> <p>The testator died in December, 1819, and in 1825, Elias, the youngest child, attained his full age.</p> <p>The land was exposed to public sale by the executors on the 4th of February, 1826, and struck oñ'to John Schweitzer, at fifty-six dollars and one cent an acre, and he neglecting to comply with his contract, Jonas Hartman took the land at Schweitzer’s bid, which was considered by the executors and heirs a fair price for it.</p> <p>On the 8th of April, 1826, Eve Hartman, and Jacob Seipel, two of the executors, executed to Jonas Hartman, their co-executor, a deed for the premises, subject to the payment of the interest of three hundred and twenty-nine dollars and thirty-one cents, annually to Eve Hartman, during her life, and of the principal to the heirs of Jacob Hartman, after her decease. The residue of the price amounting to one thousand nine hundred and seventy-five dollars and fifty-five cents, was paid or accounted for to the executors, and distributed among the six children of Jacob Hartman, of whom Jonas was one.</p> <p>On the 14th of September, 1828, Eve Hartman married John Hummell.</p> <p>Jonas Hartman having died without issue, but leaving a mother, brothers and sisters, on petition of some of the heirs, an inquest was held under the intestate laws, and the estate being incapable of division, it was appraised. The inquisition was confirmed by the court, and the property accepted by one of the heirs. The question which then arose was, to whom the appraised value should he paid.</p> <p>The Orphans’ Court appointed an auditor to make distribution, who reported as follows</p> <p>“Valuation Money, £¡3,200 00</p> <p>Deduct expenses of inquisition, $37 85</p> <p>Amount due by Jonas Hartman, to the estate of Jacob Hartman, deceased, (on account of purchase money,) 146 22 2-7</p> <p>due Eve Hummell, late Eve Hartman, from September 14, 1828, to April 1, 18,30, 30 57 5-7</p> <p>Auditor’s wages, 3 217 65</p> <p>2,982 35</p> <p>Amount of a lien on the land in favour of ■Eve Hummell, subject to which the land was accepted, 329 31</p> <p>2,653 04”</p> <p>This sum of two thousand six hundred and fifty-three dollars and four cents, the auditor directed to be distributed as follows:—</p> <p>“ A bond to be given to John Schweitzer, and Margaret, his wife (the widow oi Jonas Hartman,) for one thousand three hundred and twenty-six dollars and fifty-two cents, being one-half of the nett valuation money, the interest, thereof to be paid to her, during life, and the principal, at her decease.</p> <p>“ Three hundred and two dollars and seventy-five cents, the amount of Jonas Hartman’s share of his father’s estate, to be immediately distributed among his brothers and sisters.</p> <p>“ One thousand and twenty-three dollars and seventy-seven cents, the residue of the nett valuation money to remain in the premises, the interest thereof to be paid to Eve Hummell, late Hartman, the mother of Jonas, during life, and the principal at her decease, and bonds to be executed by the acceptant of the real estate accordingly.”</p> <p>This report was read and confirmed, nisi, on the 13th of May, 1831. On the Í4th of May, 1831, exceptions were filed by the widow, and the mother of the deceased, and by Jacob Seipel, one of the heirs, and rules were granted to show’ cause why The report should not be set aside or corrected.</p> <p>The exception filed on behalf of the widow of Jonas Hartman, W'as, “That the auditor had not directed a bond to be given to John Schweitzer, and Margaret, his wife, and the survivor of them, conditioned for the punctual payments of the interest of the one thousand three hundred and twenty-six dollars and fifty-two cents, stated on said report as the half of the said Jonas Hartman’s estate; the said Margaret Schweitzer, late Margaret Hartman^being widow of the said Jonas Hartman, who left no issue.”</p> <p>The exception filed on behalf of the mother, w’as, “ That the auditor has directed a bond to be given to the heirs and legal representatives of Jacob Hartman, the father of the said Jonas Hartman, deceased, payable at the death of Eve Hartman, now Eve Hummell, widow of the said Jacob, and mother of the said Jonas, the interest to be paid annually to the said Eve, during her natural life, counting from April 1, 1830, for one thousand and twenty-three dollars and seventy-seven cents: Whereas, there should have been a bond given to John Hummell, and Eve, his wife, late Eve Hartman, in the same way to enforce payment of the yearly interest to the said Eve Hartman, the widow.”</p> <p>The exception filed on behalf of Jacob Seipel, married to a sister of Jonas Hartman, was, “That the auditor erred in directing a bond to be given to Eve Hummell, late Eve Hartman, who is the mother of Jonas Hartman, deceased, for the sum of one thousand and twenty-three dollars and seventy-seven cents.”</p> <p>On the 2d of September, 1831, the Orphan’s Court made the following decree: “ That the account reported by John Rice, auditor, be corrected in this, that instead of a bond being given to Eve Hummell, formerly Eve Hartman, widow of Jacob Hartman, deceased, and mother of the said Jonas Hartman, deceased, for the sum of one thousand and twenty-threé dollars and seventy-seven cents, that the bonds be given for the said sum of one thousand and twenty-three dollars and seventy-seven cents, to the brothers and sisters of the said Jonas Hartman, as if Jonas Hartman had survived his said mother Eve. The court also decree that a bond be given by the acceptant of the real estate of Jonas Hartman, deceased, to John Schweitzer, and Margaret, his wife, in the penalty of one thousand three hundred and twenty-six dollars and fifty-two cents, conditioned for the payment of seventy-nine dollars and fifty-nine cents annually on the 1st day of April, counting the 1st day of April, 1831, for and during the natural life ofMargaret Schweitzer, widow of said Jonas Hartman, deceased, and that the said acceptants pay immediately to the said John Schweitzer, and Margaret, his wife, seventy-nine dollars and fifty-nine cents, being the interest due at this time, to the said widow of Jonas Hartman, deceased. And the court also decree that the said acceptant of the said real estate, give bond to the brothers and sisters of the said Jonas Hartman, deceased, (naming them,) in the penalty of two thousand six hundred and fifty-three dollars and four cents, conditioned for the payment of one thousand three hundred and twenty-six dollars and fifty-two cep;ts,on the day of the death of Margaret Schweitzer, late Margaret Hartman, widow of Jonas Hartman, now deceased, and the report thus corrected, is confirmed by the court, and the exceptions dismissed.”</p> <p>From this decision of the Orphan’s Court, John Hummell, and Eve, his wife, appealed to the Circuit Court, and filed their exceptions.</p> <p>In the Circuit Court, his honour Judge Huston, without argument, affirmed the decree of the Orphan’s Court, in order to bring up the whole case before the Supremo Court, without prejudice, and the appellants appealed to this court.</p> <p>The following reasons for the appeal were filed:—</p> <p>1. That under the intestate laws of Pennsylvania, the mother of the deceased, (who died intestate without issue, but leaving a wife, a mother, and brothers and sisters,) was entitled to enjoy during life, the income of one half of the nett proceeds of the real estate of the deceased, after payment of his debts, and the court should have so decreed in this case.</p> <p>2. That the real estate of the deceased, or the valuation money thereof, should not have been decreed to the widow and brothers and sisters of the deceased, to the exclusion of the mother, such estate having been acquired by the intestate by purchase, in the strict sense of the term, in his life time..</p>

This case came before the court on an appeal from the decree of the Circuit Court of Chester county. On the 23d of April, 1831, a paper writing purporting to be the nuncupative will of Priscilla E. Yarnall, deceased, was exhibited for probate by Walker Yarnall, a legatee and devisee under the will, in the office of-the Register for the probate of wills, and granting letters of administration in and for the county of Chester.

<p>Testator devises to G. K. liis executor, and to liis heirs and assigns, a certain tract of land, which he purchased of W. S. E., with the appurtenances; also, all the goods and chattels assigned to him by the said W. S. E., to hold to liim.the said G. K. his heirs and assigns in trust, only to and for the sole and separate use of A, E., the wife of the said W. 8. E,, and the heirs and assigns of her the said A. for ever, so that the same shall not be in any manner or way whatever, subject to any of the debts, contracts, or engagements of her husband. “I also give and'bequeath unto the said G. K. the sum of one thousand dollars in trust, for the use of her the said A, E.”</p> <p>Held, that the bequest of one thousand dollars, was not for the sole and separate use of the wife, but went to the husband.</p>

<p>This was an ejectment for land, in Delaware county, brought by Joseph JVeide against Jacob JVeide. On the trial of the cause in the Circuit Court of that county, the following case, in the nature of a special verdict, was stated for the opinion of the court:—</p> <p>“ Joseph JVeide, the elder, being seized of the premises mentioned in the declaration, (about twenty-eight acres eighty-eight perches,) duly executed his last will and testament, written by his own hand, on the 19th day of May, 1796, which was duly proved and recorded on the 29th of December, 1798, (prout the said will as follows:)</p> <p>“ In the name of God Amen. I, Joseph JVeide, of Delaware county, in the state of Pencilvania, being in perfect helth of body and sound mind and memory, thanks be to God, therefore, do this nineteeth day of May, in the year of our Lord Christ one thousand seven hundred and ninety-six, make and publish this my last will and testament in manner following, to wit: principally and first of all, I give and bequeath to my eldest son, John JVeide, my late punches horn FAizebeth Clazton, as also, four alters of woodland, being a corner, lying between the Bristo field and Sharplesis’ land, further, I give to my son, John JVeide, the corner piece of mash from the cross bank out to lo Zoiw-water mark, with a privilege lo pas and rep as to and from said mash, through the plantation, also to quarry stone be on the side of said mash, as aliso, 1 give and beqeath to my son John, one hors and one cow. — Secondly, I give to my daughter Mary, the sum of one hundred pounds, to be paid out of my estate at different times within the space of five years after my deceace. — Thirdly, I give to my daughter Rebecka, the sum of eighty pounds, to he paid in eight years, at ten pounds a year. — Fourthly, 1 give and bequeath to my daughter FAizebeth, the sum of one hundred pounds, to be paid in eighteen months after my deceace. — Fifthly, I give and bequeat to my daughter Abegal, the sum of fifty pounds, when she shall arive to the age of twenty one years, and if she should die before that time, to be devided among the living. — Sixtly, I give to my son Jacob, the sum of fifty pounds, to be paid to him in one month after my deceace.— Seventhly, I give and bequeath to my son Benjamin, twenty alters of land, to be taken in the Bristo field, to begin at William Swaffers’ line, and running from thence by the percimen tree to the great road. — Eightly, I give to my grandaughter, Elizebeih Evans, hur maintainnance til she shall arive to the adge of eighteen years, to come out of my estate by my executor. — Ninthly, I give to each of my granchildren, of my daughter Sarah, one silver dollor a peace.</p> <p>“ Farther, I give and bequeath to my molatto boy Tom, the sum of five pounds, to be paid by my executor.</p> <p>“ And I do give and bequeath the remainder of my lands not heiret'fare willed, to my son, Joseph Neide, but in case he should die without issue, then my son, John Neide, shall have two shairs, and the remainder to be equealy decided amongst the survivors, and further,</p> <p>I do constitute and appoint my son, Joseph Neide, sole executor of this my last will and testament, hereby revoking all other wills and testaments hereunto by me maid. I witness whereof, I have hereunto set my hand and seal.</p> <p>Joseph Neide, [l. s.]</p> <p>“ Signed, sea.ld, published and declared in presence of William Kerlin, John Caldwell, Pierce Powers.”</p> <p>“ Joseph Neide, the elder, died in the year 1798, and John Neide, took possession of the premises laid in the declaration. He died in possession, on the 24th of September, 1830.</p> <p>“Joseph Neide, the younger, mentioned in the will of the testator, died in the year 1806.</p> <p>“ The plaintiffis the only son of Joseph Neide, the younger, who entered into possession, under the will of his father, of between two and three hundred acres of land, in the township of Chester, not being the same land mentioned in the declaration.</p> <p>“ ‘ The purchase,’ made by Joseph Neide, the elder, of Elizabeth Claxion, was of twenty-three acres and sixty-two perches, in fee simple ; as per deed of 16th June, 1785.</p> <p>“ John Neide, by his last will, dated 24th of September, 1830, devised to the above defendant, all his estate, real and personal, in fee simple.</p> <p>“ Joseph Neide, the elder, at the time of his death, had eight children.</p> <p>“ Of these, the following now survive, viz.: Ann Mary, (now Evans,) Rebecca, (now Dicks,) Abigail, (now Hall,) Jacob, and Benjamin.</p> <p>The following are deceased, leaving issue: — Elizabeth, who left seven sons, Joseph, who died intestate, leaving the plaintiff, his only son and two daughters; one of whom is since deceased without issue.</p> <p>“ The following died in the lifetime of the testator-Sarah, (who married Elisha Evans,) leaving issue, fiye children.</p> <p>“ John Neide, died as aforesaid, without issue. At the time of the making of the will of Joseph Neide, the elder, and at the time oí his death, his son, Joseph Neide, the younger, was unmarried, and without issue.</p> <p>■ “ The quarry referred to in the devise to John Neide, is not on the premises laid in the declaration.</p> <p> Point's. </p> <p>“ 1. The plaintiff contends that under the will of Joseph Neide, the elder, John Neide, took but an estate for life in the premises laid in the declaration.</p> <p>“ 2. That Joseph Neide, the younger, took in those premises an estate tail.</p> <p>“The defendant denies both these propositions, and contends that John Neide, took in those premises a fee simple.</p> <p>“ By agreement, such judgment is to be entered, as the law and the facts will Warrant.”</p> <p>The judge who held the Circuit Court, for the purpose of bringing the case before the court in bank, gave judgment for the plaintiff and an appeal was entered by the defendant from his decision.</p>

<p>IN ERROR.</p> <p>Where judgment is given in favour of the plaintiff on a demurrer to a plea in bar, it should be a judgment quod recuperet, and not quod respondeat ouster; but if judgment qitod respondeat ouster be given, it is an error of which the defendant cannot complain, for it is in his favour.</p> <p>To an action founded on a bond of indemnity nil dele!; is no plea.</p> <p>It is no cause of demurrer to a special plea, that the facts sot forth in it, may be given in evidence under the general issue.</p> <p>In an action on a bond of indemnity by two obligees, a plea, stating in substance, that the defendant, with others (originally -bound with him) agreed to join in the execution of the bond to one of the plaintiffs alone to indemnify him, &e. and positively refused to be bound to the other plaintiff in any manner or form whatever to indemnify him, &e. either severally, or jointly and severally with his co-plaintiff, and that neither ofthe obligors being able to read the English language in which it was drawn up, they all signed it upon trust, and delivered it to the plaintiff to whom they agreed to become bound, without having heard it read or explained or interpreted, and without having requested that it should be, believing that it was written in exact conformity to their-previous agreement, but not stating how or why the deviation from their agreement happened, whether by fraud of the plaintiffs or mistake of the scrivener, is not sufficient to bar the plaintiffs’ action.</p> <p>It is no plea against the further maintainance of an action, that one of the plaintiffs, since its institution, has applied for and obtained a discharge under the insolvent laws, and that his trustees have not given the security required by law.</p> <p>A mere irregularity in point of time, in putting in a plea puis darrein continuance, is no cause of demurrer to the plea, whatever it might have been for setting it aside on motion; but the power to sot it aside may be questioned since the act of 2.1st March, 1806.</p> <p>Query, whether in Pennsylvania, a plea puis'darrein continuance is a waver of a previous plea in bar.</p> <p>The obligors in a bond reciting that the obligees, together with M. are bound in seven obligations to the heirs of G. R, to be paid by the said M. and conditioned that he shall pay them on the days and times mentioned therein, and also to keep harmless and indemnify the obligors from all suits, payments, costs and charges in behalf of the recited obligations, are responsible for the default of the principal debtor in those obligations, though they may have passed into the hands of assignees.</p> <p>There is no error in instructing the jury in reference to the defendant’s liability on such a bond of indemnity, that “ the plaintiffs’ claim for damages does not rest on the ground of injury done them by reason of their liabilities as sureties for M. and on the neglect of M. to pay the heirs of G. R. The measure of damages is the amount of injury actually sustained.”</p> <p>Nor is there error in charging the jury, that in strictness oflaw they might give the plaintiffs the full amount due in each of the actions on the recited obligations, mentioned in the breaches assigned in the declaration in the suit on the bond of indemnity, at the commencement of that suit, recommending to them however, if they should find for the plaintiffs, to regulate the amount of the damages by the amount of moneys actually paid out by the' plaintiffs, with interest from the time of such payments; the jury having adopted the recommendation and found a verdict accordingly.</p>

<p>IW J6JRROR.</p> <p>Of interpleading generally, and particularly, as it is practiced in Pennsylvania.</p> <p>The recovery of a debt, in a scire facias against the garnishee, upon a judgment in a foreign attachment, is a bar to a recovery of the same debt from the garnishee by a person who took defence on the trial of the scire facias; provided such recovery was not the result of misrepresentation, fraud or neglect, on the part of the garnishee, or of collusion between him and the plaintiff in the attachment.</p> <p>If counsel submit to the Court several distinct questions of law, with a request that the jury may be instructed on them, it is not error to answer them collectively, provided they all relate to the same matter and are answered fairly and fully.</p>

<p>Testator bequeaths to each of his children, six thousand dollars, to be paid to them respectively, as they severally arrive to lawful age, or on the day of marriage, which ever may first happen. The residue of his estate, whatsoever, and wheresoever, he devises, and bequeaths to be equally divided among all his children, (naming them,) when his youngest child arrives at lawful age, to hold to them, their heirs, executors, administrators and assigns, in equal shares, as tenants in common, and not as joint tenants. He then by his will declares, that if cither of his above mentioned children die under ago, and without leaving issue, the share given to the child so dying, shall be equally divided, share and share alike, among all his surviving children, and the lawful issue of any of his said children, or of any grand child, or grand children, who may then be dead, having left such issue, as tenants in common in fee, such issue, if one person only, or if several persons, as tenants in common, in equal shares in fee, always taking such part as his, her or their parent or parents would have taken, if living. The devises and bequests above mentioned, were the only provision which the testator made for the maintenance of his children. His personal estate was abou equal to the amount of his debts, the money legacies to his children, and the bequests to his wife; and the “ residue” of his property consisted almost exclusively of real estate. One of his children died in his minority, unmarried, and intestate. Held, that the bequest of six thousand dollars, vested in him immediately on the death of the testator, and that his administrator was en-tiled to recover it, with interest from the time of the death of the testator, no other provision having been made for the maintenance of the legatee, during his minority</p>

<p>IN ERROR.</p> <p>The conversion by one partner of property, which came into the possession of the firm on partnership account, is the conversion of all, and makes all liable in trover.</p>

<p>IN ERROR.</p> <p>A lease for no determinate period of time, but by which an annual rent is reserved, payable quarterly, is a lease from year to year, so long as both parties please. It is binding on the parties prospectively for one year only, capable, however, of being extended to a second, third, fourth or fifth year, and so on, unless determined by the dissent of either party, which may be done at the close of any one year by giving three months previous notice to that effect, but at no time before the close of a year, after it has once commenced.</p> <p>Consequently, where the tenant continues to hold the demised premises until after the commencement of the second year, without offering to surrender the possession to the landlord, or receiving from him notice to quit, he is entitled to hold for another year in despite of the landlord, but at the same time is bound to pay the year’s rent quarterly, according to the agreement.</p>

<p>APPEAL.</p> <p>Parol evidence may be given to explain a written agreement, so far as to give locality and identity to the subject-matter of it, and apply the contract to it.</p> <p>Therefore, where in a proceeding under the acts, incorporating the Lehigh Coal and Navigation Company, to recover damages for injuries done by the company to the land of the plaintiff, the defendants pleaded in bar, a written agreement for the purchase of the plaintiff’s land, through which the defendants’ canal was to pass, it was held, that the plaintiff might give parol evidence, that, at the time the agreement was entered into, the line or route of the canal was laid out and designated by stakes, set up through the plaintiff’s land; that the written agreement was made in reference to this .line; that the land lying between it and the river is the same land that is described in the agreement, and that the defendants, instead of confining themselves to this line, as then staked out, in constructing and making their canal, or, at least, keeping between it and the river, extended the canal beyond the line, and further from the river into the other land of the plaintiff, and thus cut off a greater quantity of land from the main body of his farm, than was agreed on.</p> <p>But parol evidence is not admissible to shew that the defendants agreed to build two locks upon that part of the canal which passed through the plaintiff’s land, as a part of the consideration he was to- receive for parting with it to the defendants; the written agreement containing no such provision.</p> <p>The remedy given by the acts of assembly, incorporating the Lehigh Coal and Navigation Company, to the owner of land, to recover damages for injuries done by the company in constructing their works, can he resorted to only where the parties are unable to agree upon the compensation to be made to the owner of the land. Where an agreement has been entered into, the remedy is by suit on the agreement. But if the company, after such an agreement, without regard to it, go on and make their canal through land different from that which was agreed on, the owner is at liberty to rescind the contract, and proceed under the acts of assembly.</p>

<p>Error to the District Court for the City and County of Philadelphia, in an action of trespass on the case, brought by the plaintiff in in error William Oliver for the use of Charles N. S. Roivland, against Oliver Sp Bell.</p> <p>The plaintiff’s claim, as set out in his declaration, containing thirteen counts, was, that the defendant, in consideration of the plaintiff’s assigning to him certain property, assumed to pay to the equitable plaintiff, Rowland, the sum of seven thousand six hundred and one dollars and twenty five cents, due to him from the nominal plaintiff, Oliver, or, as stated in other counts, to pay that amount to the United States, being the amount of certain bonds for duties on which Rowland was surety for the plaintiff Oliver. The breach assigned, was the non-payment of that sum.</p> <p>On the trial in the District Court, the plaintiff’s counsel, after having given in evidence the written assignment in which no such engagment as that stated in the declaration appeared, offered, for the purpose of shewing fraud, to prove by the testimony of the counsel who drew the assignment, was present at its execution and subscribed it as a witness, that at and immediately before it was executed, the defendants promised the plaintiff to pay the bonds for duties referred to .in the declaration, provided the plaintiff would execute the assignment : That by the agreement, and at the instance of the defendants, this engagement was not inserted in the assignment: That it was agreed by them that it should be as binding and available as if it had been inserted in the assignment, and that upon the faith of this engagement the assignment was executed.</p> <p>This evidence was objected" to and overruled by the court.</p> <p>The plaintiff’s counsel then placed the case on the footing of a parol agreement, of which the assignment was only a part execution, and offered to prove, that at the time the agreement was entered into, the plaintiff, Oliver, was indebted to Charles N. S. Rowland on a balance of a book account, besides the liability incurred by Rowland for the plaintiff’s accommodation upon the custom house bonds : That to secure pro lanio the balance of the book account, Rowland was to receive an assignment of certain property in New Orleans: That the custom-house bonds were to be absolutely secured at all events: That the plaintiffs refused to transfer the effects mentioned in the assignment unless the defendants would accede to these terms: That the defendants acquiesced and promised the plaintiff accordingly to assume the payment of the bonds if he would execute the assignment: That in part execution of this agreement the plaintiffexecuted and delivered the assignment, and also, on the same day, executed another assignment to Rowland of the property in New Orleans.</p> <p>This evidence was also objected to and overruled by the court.</p> <p>Parol evidence was then offered by the plaintiff’s counsel to prove fraud on the part of the defendants in procuring the plaintiff, Oliver, to execute the assignment, and that it was even attempted to make a fraudulent use of it to defeat the purpose for which the defendants knew before, and at the time of its execution, it was intended, and in which they then declared their acquiescence. The fraud was proposed tobe proved by a chain of evidence calculated to show that before and at the time of the execution of the assignment, the parties, grantor and grantees therein, communicated to the person employed to draw it, their mutual understanding: That in consideration of the intended execution of the assignment in their favour, and as the inducement thereto, the defendants were to assume upon themselves the payment of the bonds of the plaintiff, Oliver, to the United States for duties on goods imported, upon which bonds Charles N. S. Rowland was the surety : That the person thus employed to draw the assignment, recommended to the parties to annex to it a schedule to be therein referred to, comprising a particular account of the debts and engagements which it was proposed to secure by it, including these duty bonds: That the defendants objected to annexing such a schedule, alleging it would hurt their credit, but at the same time promised the plaintiff that if he would execute the assignment without such a schedule they would pay the bonds as if there was a stipulation to that effect incorporated in the assignment: That this promise was repeated at the time the assignment was executed: That by means thereof the plaintiff was induced to execute it, and the defendants thereupon took possession of the estate and effects therein mentioned : That after the assignment in the month of June, 1806, both the defendants in writing, and also jointly and severally by word of mouth, to different persons, on several occasions, admitted their liability for the full amount of the duty bonds in question; stated that they were under an obligation to pay them, and also, that they were fully secured by the property assigned to them: That by assuring their creditors they were under the necessity of paying these bonds, they persuaded them to make favourable compromises of their debts, and thus succeeded in compromising upwards of ninety thousand dollars of their engagements for less than sixty thousand dollars : That Rowland took up the bonds in question upon which he was surety, as they fell due, at New York, and paid them off to the amount of seven thousand six hundred and one dollars and twenty-five cents, and that he communicated this to the defendants, who then refused to comply with their engagement, or to indemnify him in any manner for what he had been thus compelled to pay on the plaintiff Oliver's account.</p> <p>To this evidence the defendant’s counsel also objected, and it was overruled by the court. A bill of exceptions was taken to each of the decisions above stated,</p> <p>Evidence of a similar nature, but in a different form, was subsequently offered, objected to and overruled, on which two more bills of exceptions were taken.</p> <p>The jury, under the direction of the court, found a verdict for the defendants, on which a judgment was entered in their favour, and a writ of error was taken out by the plaintiff.</p>

On a writ of error to the District Court for the city and county of Philadelphia, it appeared that this was an ejectment for a lot of ground in the city of Philadelphia, brought by the defendant in error, Echles Johnson, against the plaintiff in error, Edith Brown.

<p>APPEAL.</p> <p>There is a distinction between the liabilities of executors with respect to creditors, and those with respect to legatees; and there are many cases in which they would be discharged as against the latter, though not as against the former.</p> <p>So long as executors manage the estate of their testator in accordance with the ideas which he himself entertained of it, and do nothing but what there is reason to believe be would have approved, could he have been consulted, it seems they are not responsible for losses as respects legatees ; aliter, as respects creditors.</p> <p>Testator made a will of which he" appointed his throe sons A., B. and G., executors, and directed that two of his sons A. and B., should put out to interest for the use of his daughter R., two thousand six hundred and sixty-seven dollars of his estate, “ on land security, or otherwise render it safe and productive, and pay the proceeds thereof to her from time to time, as they in their wisdom should judge most for her benefit.” Among the assets which came into the hands of the executors, was a bond given to the testator by G. S. and his father J. S., in which the latter was surety. The bond was dated in the year 1810. In 1813, at a meeting of the creditors of G. S. an offer was made to the testator to pay off the bond, which he declined, saying he did not wish it paid during his life; he only wanted the interest. He continued to receive the interest until his death in 1816. J. S. the surety in the bond, died in 1818, leaving a large estate. A suit was afterwards brought against his executors to recover the amount of the bond, but it was adjudged to be a joint and not a several bond, and that therefore there could be no recovery against the estate of J. S. as G. S. had survived him. G. S. became insolvent about the year 1817, and the money was lost. There was some evidence to shew, that about a year after the death of the testator, one of the legatees offered to take the bond as part of her share of the estate, which A., one of the executors, would not agree to, intimating that he wished to retain it as a part of the fund to be set apart for the use of the testator’s daughter R. It also appeared that G. S. in the year 1820, offered to A., one of the executors, in satisfaction of the bond in question, a bond and mortgage on certain lands in Steuben county, New York, but it was not shown what was his title to the lands, nor what was their value, and the offer was refused. The executors appeared to have acted with good faith throughout the whole business, and in the suits instituted on the bond in controversy, acted under the advice of eminent counsel. Held, that under the particular circumstances of the case, of which the above are the principal, they were not responsible to legatees for the loss of the bond, and that they were entitled to credit for the expense they incurred in endeavouring to collect it.</p>

This was a writ of error to the Court of Common Pleas of the County of Philadelphia, in an action originally brought by the defendant in error, Levi Ellmaker, against the plaintiff in error, John Harrisun then Recorder of Deeds of the City and County of Philadelphia, to recover the penalty of fifty dollars imposed by the 26th section of the act of 28th of March, 1814, entitled “ An act to establish a fee bill.” 1 Purd. Dig. 311.

<p>APPEAL.</p> <p>The seal of a foreign corporation cannot he admitted in evidence without proof that it is the official seal which it is asserted to be.</p> <p>If a similar seal has already been given in evidence, without objection, the jury are not to be permitted to compare the two seals, and judge of the genuineness of the second from the comparison.</p> <p>If upon a hearing of the cause before arbitrators, the seal has not been objected to, the party offering it on the trial in court, is not entitled, on the ground of surprise, to have a juror withdrawn.*</p>

<p>IN ERROR.</p> <p>Under the act of April 1st 1811, the Orphans’ Court has no power to order a sale of the real estate of a testator, until the final settlement ofthe administration accounts.</p> <p>But irregularities in the proceedings cannot be inquired into in a, collateral suit, if it substantially appear that the accounts were finally settled and confirmed previouslyto the order of sale.</p> <p>Nor can the purchaser at such sale be affected by the fraud of the executor in settling his accounts, unless it appear that the purchaser was a party to it or had notice of it before or at the time ofthe sale.</p>

<p>IN ERROR.</p> <p>A legacy was left to a married woman, whose husband had deserted her, and from whom she was subsequently divorced from the bonds of matrimony. After the divorce she demanded payment of the legacy, which the executors refused, on the ground that the husband alone was entitled to -it, although he had never claimed it, and it was uncertain whether he was dead or living.</p> <p>Held, that the wile was entitled to recover.</p>

<p>IN ERROR.</p> <p>By the act of March £2nd, 1817, entitled “ an act to prevent the making, issuing, receiving and circulating certain descriptions of notes and tickets in the nature of bank notes, and for other purposes,” a note in the nature of a bank note issued by an individual, is valid so far as to compel the drawer to discharge it, and is consequently the subject of property in the holder, and if stolen from him, it is the subject oflarceny.</p> <p>In an action of trover by the holder of such a note against the drawer, who had got possession of it and refused to return it on the ground that it did not belong to the holder, it is not necessary for the defendant to give notice to the plaintiff, before the trial, that he must prove his property in the note. The plea of not guilty in trover, requires the plaintiff fully to make out his case.</p> <p>If such a note has been delivered to the plaintiff for the mere purpose of getting it exchanged, no property passes to him, and the circumstance of his being a creditor of the person delivering it, if no receipt or other acknowledgment of credit on the old debt be given at the time, does not alter the case.</p> <p>Quere, whether a promissory note given for a consideration partly legal and partly illegal, is valid for so much as is legal?</p>

A wide range of argument upon certain local acts of assembly was taken by Chew for the Germantown and Perldomen Turnpike Road Company, and by Page for the commissioners of the county of Philadelphia ; but the opinion of the court (delivered by the Chief Justice) being confined to a single point, it becomes unnecessary to report the arguments.

<p>Certiorari.</p> <p>The Presidents of the Courts of Quarter Sessions are not required by the act of the 24th of February, 1806, to reduce their opinions to writing, and file the same of record.</p> <p>The act of the 23rd of April, 1629, directing that “ Spring Garden Street, as now laid down and confirmed by the Court of Quarter Sessions of the City and County of Philadelphia, west of Tenth Street, be continued of the same width from Tenth to Sixth Street,” does not lay out a new and independent street, but is merely an amendment of the plan of the District of Spring Garden, as authorised by the act of incorporation, and confirmed by the court, and leaves the act of incorporation in force as regards the rights and remedies of the parties.</p> <p>It is no objection to the report of viewers appointed to assess damages for opening a street, that they conversed with the owners of property adjoining, in the absence of the parties interested.</p> <p>This court will not, on a certiorari to the Quarter Sessions to remove the proceedings in a road case, enter into the merits or determine facts.</p>

<p>IN ERROR.</p> <p>The withdrawal of material facts from the jury is error.</p> <p>A factor cannot pledge the goods of his principal for his own debt.</p> <p>A usage cannot be set up in opposition to a general rule of law; therefore, a usage for factors to pledge the goods of their principals, is bad.</p> <p>A supercargo, to whom various shipments have been consigned by the same vessel, with instructions from one of the shippers to obtain an advance on his goods, cannot make a general deposit of the whole cargo, to secure a general advance, so as to bind his principals. It is his duty to keep the different interests separate.</p> <p>Where a general advance is made to a factor on a general deposit of goods owned by various persons, it must be borne rateably by all.</p>

<p>IN ERROR.</p> <p>Where an agent sells the goods of his principal on credit, taking a note for the price, gives notice of the sale to his principal, and credits him in account with the amount of it, but omits to give notice of the non-payment of the note at maturity, the agent becomes responsible for the whole amount of the debt, and .it is not necessary, to enable the principal to recover, that he should prove he has sustained any damage. The omission to give reasonable notice, makes the agent an insurer of the solvency of the purchaser.</p>

<p>APPEAL.</p> <p>An inquisition taken under a commission in the nature of a writ de lunático inquirendo, finding that a person is of unsound mind, and has been so for a certain space of time</p> <p>- prior to the finding, is prima, facie evidence to show that a deed purporting to have been executed by such person during that period, is invalid on the ground of the mental incompetency of the grantor.</p> <p>It is, however, only prima facie evidence, and may be rebutted by the testimony of those who were acquainted with him during the period in question, and knew him to have been of sound mind, or at least to have had lucid intervals, and that the deed was executed by him during one of those intervals—</p> <p>And the members of the inquest who found him to be of unsound mind, are competent to* prove such facts, so far as they are within their knowledge, but they cannot be examined for the purpose of proving what they conceived to be the nature of their finding, and that they did not intend to find or represent that he had been of unsound mind for the space of five years anterior to the inquisition, or that they did not know until after their report had been made, that it was retrospective in its operation-</p>

Theresa E. Brentlinger, by her next friend John C. Guldin, presented a petition to the Court of Common Pleas of Montgomery County,, praying for a divorce and alimony, which the court decreed. The respondent, John Brentlinger, entered an appeal to this court.

<p>IN ERROR.</p> <p>An assignment purporting to transfer all the right of the assignor in a sum of money «liarged, by agreement, upon land, in lieu of a widow’s dower, the interest of which is to ■he paid to the widow during life, and the principal, after her death, to the assignor and others, is not within the meaning of the recording act of the eighteenth of March, 1775, and therefore it is not necessary that it should be acknowledged, or proved and recorded under that act, in order to preserve its validity against a subsequent assignment for a valuable consideration, without notice.</p> <p>It seems, that an assignment of a mortgage, is not within the provisions of the act above mentioned.</p> <p>It seems too, that it is not necessary that an assignment of a mortgage should be in writing.</p> <p>A deed, purporting to convey all the right and title of the grantor to land of which he had previously parted with the (fee simple, reserving only a right to a portion of the purchase money charged upon the land, does not pass his interest in the money so ¡charged.</p>

<p>HABEAS CORPUS.</p> <p>Where a person has been sentenced to imprisonment, for a term to commence immediately after the expiration of a preceding sentence, and the first sentence is reversed upon error, the term of the second begins to run from the time of the reversal of the first.</p>

Writ of error to the Court of Common Pleas of Chester county, in an amicable action of trespass, vi et armis, entered into between the plaintiffs in error, William Sp James Pritchett, who were also plaintiffs below, and Jonathan Jones, the defendant in error, late sheriff of Chester county, to recover damages for seizing and selling under execution, a quantity of leather, in process of manufacture, as the property of Augustin Williamson, which the plaintiffs claimed as their…

This case arose upon a rule to show cause why a mandamus should not issue directed to the Orphans’ court of Philadelphia County, to allow an appeal from the decree of distribution made of the estate of Jacob Gerard Koch, deceased, and upon the hearing, the case was this: M. H. Meschert, and H. Meschert, the administrators of Jacob Gerard Koch, filed their accounts, and upon their regular confirmation there appeared to be a balance in their hands in money and stock for…

This was a writ of error to the District Court for the City and County of Philadelphia. Sylvester Pier, the plaintiff below and defendant in error, declared in replevin for ninety-seven tons of Campeche logwood, taken-and unjustly detained by the defendant, James Marsh, to which the defendant pleaded “ property.” The plaintiff replied, and issue was joined.

The record of this case being returned on a writ of error from the Court of Common Pleas of Northampton County, accompanied by two bills of exceptions to evidence, it appeared that it came before the court below, on an appeal from a justice of the peace, before whom an action was brought by John Doyle, the plaintiff below and defendant in error, against Joseph Hough, for work and labour done by the former for the latter, on a canal.

<p>Error to the Court of Common Pleas, of Northampton County.</p>

<p>Error to the Court of Common Pleas of Northampton county, in an action of debt brought by John Young, the plaintiff in error, against John Shook, the defendant in error, surviving obligor in a bill obligatory, executed by himself and John Kemmerer, on the 12th of June, 1811, by which they bound themselves to pay to Young, two hundred and thirty-two pounds and thirteen shillings, on the twelfth day of June next following the date of the instrument. Kemmerer died before suit was brought.</p> <p>The defendant pleaded payment with leave, &c. and afterwards added the following special plea:</p> <p>“ And the said Jacob Shook, for further plea in this behalf, by leave of the court here first had and obtained, according to the form of the statute in such case made and provided, says, that the said John Young ought not to have or maintain his aforesaid action thereof against him, because he says, that after the- making of the said writing obligatory, and before the commencement of this suit, to wit, on the eighth day of March, in the year of our Lord one thousand eight hundred and twenty-seven, at the county aforesaid, the said John Young, and the said Jacob Shook, in conjunction with a certain David Kemmerer, who is one of the administrators of all and singular the goods, chattels, and credits which were of the aforesaid John Kemmerer, deceased, who was in his life co-obligor with the aforesaid Jacob, Shook, in the said writing obligatory — submitted themselves and all matters in variance between the said parlies, that is to say, by their certain submission in writing, under their ' hands and seals, bearing date the day and year aforesaid, to the arbitration of Lewis Micke, Daniel Brown and Adam Shug, as referees indifferently chosen by the said John Young, David Kemmerer, and Jacob Shook, to settle all matters in variance between the said parties, to meet at the house of George Messinger, innkeeper, of Forks township, on the seventeenth day of March, then instant. And the said Jacob Shook■ further says, that the said referees afterwards, to wit, on the said seventeenth day of March, in the year last aforesaid, took upon themselves the burden of the said arbitration, and having met on the day and place before mentioned, and having heard the parties, their proofs and allegations, and examined the vouchers, and duly considered the matters in dispute between the said John Young and Jacob Shook, did make their award in writing, under their hands, of and concerning the premises, and of and concerning the said writing obligatory, in the declaration mentioned, and ready to be delivered to the said parties in difference. And did thereby, then and there, award and find that the said John Young has no cause of action; and that the parties should pay the costs, each one half, as by the said award bearing date the day and year last aforesaid, reference being thereunto had, will more fully appear. And this the said Jacob Shook is ready to verify. Wherefore he prays judgment, if the said John Young ought" to have and maintain his aforesaid action against him.”</p> <p>The plaintiff craved oyer of the submission and award, which was granted in h<zc verba:</p> <p>“ John Young, vs. David Kemmerer, one of the Executors of his father, J. Ke and Jacob Shook.</p> <p>“ Amicable suit and agreed by the partice and refeart to Lewis Micke, Daniel Brown, and Adam Shuge, as referees chosen by the Partice lo satle all matters in variance between the said partice, submitted to you to meed at the House of George Messinger, Innkeeper of Forks Township, on the 17 th day of March instance. So agreed the 8th day of March, A. D. 1827, as witness our Hands and Seals the day and year aforesaid,</p> <p>“ John Young, L. S.</p> <p>“ David Kemmerer, n. s.</p> <p>“ Jacob Shook. L. S.</p> <p>“ We, the above named referees, having meed on the day above appointed, and after hearing the partice and there proof and allocations, and examined the voudshers, and after consiteration we find no case of action — and we fourther report that the partice shall pay the costs — Each one half. Witness our hand this 17th day of March, Anno Domini, 1827.</p> <p>“ Lewis Micke,</p> <p> “ Daniel Brown, </p> <p>“ Adam Shuge.”</p> <p>The plaintiff demurred to the special plea, and assigned the following causes of demurrer, viz.</p> <p>“ That the award therein referred to, exceeds the submission in determining the question of costs, which was not warranted by the submission and agreement of the parties thereto.”</p> <p>“ That the agreement, and, in the said second plea, supposed submission, is not a reference at common law, but an amicable action instituted before a justice of the peace, and by an agreement of the parties thereto referred, and that the report of the referees is a nullity, no judgment having been rendered upon it.</p> <p>“ That in the said supposed submission in the said plea contained, there is a misjoinder of the parties to the action, and whether it be considered a reference at common Jaw, or an amicable action before the justice, it is equally void, because no action could be sustained upon the award, and no judgment could be rendered thereon by the justice.</p> <p>“ That the said supposed submission in the said plea contained, is by John Young, David Kemmerer, and Jacob Shook, who are not the parties to the present suit.</p> <p>“ That in the title to the said supposed submission, in the said plea contained, David Kemmerer is represented as one of the executors of his father, J. K, whereas David Kemmerer is not executor of his father’s estate, but administrator with Nicholas Kemmerer, who is no party to the said supposed submission.</p> <p>“ That by the said supposed submission an amicable suit was instituted before a justice of the peace, by the parties thereto, and the sum in controversy having exceeded one hundred dollars, it could not be submitted to referees, and an award thus made is neither a good award under an act of assembly nor at common law.</p> <p>“ That the said supposed submission in the said second plea mentioned, is not truly recited, and also, that the said plea is, in other respects, uncertain, informal, and insufficient.”</p> <p>The court below gave judgment for the defendants on the demurrer.</p>

<p>IN ERROR.</p> <p>It is error to permit a party to read so much of the docket entries of the suit under trial, as shows that the opposite party had appealed from an award of arbitrators; though neither the award itself was read, nor that part of the docket entries which shewed what the award was.</p>

<p>A. drew a note for thirteen hundred and fifty dollars, for the accommodation of B., dated 21st of August, 1822, payable sixty days after date to C. or order, who endorsed it for the accommodation of B., who after endorsing it himself, got it discounted at the Bank of P., where he received the proceeds of it. B. by his agreement with the drawer and payee of the note, was to pay it at maturity. Before this timo arrived, however, B. failed, and on the 13th of September, 1822, executed an assignment of all his estate to trustees, for the benefit of his creditors, on certain conditions, one of which was, to pay and discharge all the debts that were by him then due, or were owing, or growing due, to such of his creditors, as should within the space of ninety days, after the date of the assignment, if residing within the United States, and within six months, if residing elsewhere, execute a general release of all demands and debts whatsoever against him, paying such creditors their debts in full, if the estate should be sufficient for that purpose, and if not, paying them in equal and rateable proportions, according to the amount of their debts respectively. The assignor furnished to his assignees a list of his debts, including the note in question. On the 14th of September, 1822, A., the drawer, having also failed, executed an assignment of all his estate to trustees, for the benefit of such of his creditors as should within thirty days from that date, execute a release of their claims against him. These trustees were authorised to make compromises, or any other arrangements which they might think beneficial to the trust. On the 14th of October, 1822, at half past nine o’clock, A. M., the Bank of P., the holders of the note in question, and other creditors of B. executed to him a full release, according to the provisions of the deed of assignment, of all debts and demands, and of all actions and manner of action, &e. which they then had, or thereafter might have, by reason of the debts'to them respectively due, or owing, or growing due, from the said B. This release was executed, among others, by the assignees of A. On the same 14th of October, at ten o’clock A. M. the Bank of P. executed to A. a general release which had been procured for his creditors to sign, in compliance with the condition contained in his assignment, and had been executed about a week before by the assignees of B. The note fell due on the 23rd of October, 1822, arid was protested, of which notice was duly given to B., the endorser. On the 25th of February, 1823, the assignees of A. paid to the Bank of P. a dividend of ten per cent, on the said note. On the 26th of March, in the samé year, notice was given to the Bank of P. that the creditors of B. should send in their claims to his assignees, in order that they might declare a dividend. On the 25th of February, 1824, another dividend of ten per cent, was paid by the assignees of A. to the Bank of P. Two dividends were declared by the assignees of B., one of thirty-three and a third per cent., and the other of ten per cent., on the debts of the assignor, and the Bank of P. having brought suit against the assignees of B., to recover these two dividends, it was held:</p> <p>1st, That B. was a competent witness for the plaintiffs to prove, that although A. was indebted to him on his private account in a small sum, and on their partnership accounts in a large sum, yet the note was not given or drawn on account of this indebtedness, but for the accommodation of the witness, with an understanding that he was to take it up when due, wherever he might get it discounted; and that he did not seek payment of the debt owing to him by A., because he knew from A.’s circumstances that he was unable to make it.</p> <p>2nd, That the release of the Bank of P. to A. the drawer of the note, did not discharge B. the endorser, and was therefore no bar to the plaintiffs’ recovery.</p> <p>3rd, That the Bank of F. were embraced by the terms of the assignment of B., though the debt owing to them was not due at the time of its execution, and that they were entitled to recover the dividends declared by his assignees.</p> <p>4th, That the rule for mailing a dividend, where more than one of the persons liable to the payment of a note or bill have failed, and made voluntary assignments of their property for the purpose of paying their respective debts and liabilities, is to take the amount actually due upon the note or bill, at the times respectively at which the first dividend is declared of each fund so assigned.</p>

This case came before the court on an appeal from the decree of the District Court for the City and County of Philadelphia, distributing part of the proceeds of the real estate of Poole, which had been sold under a venditioni exponas.

<p>IN ERROR.</p> <p>Where a loas has been sustained by one of two or more innocent persons, it must be borne by him whose act was the cause of it.</p> <p>Therefore, where the plaintiffs, a bank in New York, stood in the relation of creditor to the defendants, a bank in Philadelphia, and the former received in Philadelphia, from the latter, in payment of the debt, specie drawn from other banks, and not from the defendants’ own vaults, contained in boxes taken at the tale of those banks by the defendants in the first instance, and afterwards by the plaintiffs’ agent, who had an opportunity, and every necessary facility to tell the money for himself, but omitted to do so, and the specie was afterwards, under the direction of the plaintiffs’ agent, transferred from the boxes to kegs, and sent to New York, where it was afterwards discovered that there was a deficiency in some of the kegs, but it was im. possible for the defendants to ascertain in which of the banks from which they had drawn the specie, the errors had occurred, it was held, that the plaintiffs were not entitled to recover the amount of the alleged deficiency.</p>

<p>CASE STATED.</p> <p>Real estate, acquired after the making of a will, does not pass under a devise of the residue of the testator’s real estate, without a subsequent republication of the will, even where the testator, in addition to the general devise of the residue, declares in,a codicil, that it is his wish and intention that all the real estate which he shall thereafter purchase, shall pass by the said will.*</p>

<p>IN error.</p> <p>A demise or conveyance of a “ barn,” without other words being superadded to extend its meaning, will pass no more land than is necessary for its complete enjoyment.</p> <p>Any entry by the landlord on the premises demised, against the will or wishes of the tenant, is not an eviction in point of law, which will suspend the rent. But if the landlord ejects, expels, evicts, or turns out the tenant, and prevents his enjoyment of the premises for which the rent is payable, the rent will be suspended; and whether there has been such an eviction, in point of fact, is a question for the jury.</p>

<p>Writ of error to the Court of Common Pleas of Chester County.</p> <p>In the court below the action was assumpsit, brought against the plaintiff in error, Josiah Ankrim, by John Woodward, John Way and George Gregg, trustees under a domestic attachment issued at the suit of Dennis M‘Credy and Samuel Parker, trading under the firm of M‘Credy Parker, against Adam Jenner Ankrim, the plaintiffs below and defendants in error.</p> <p>The defendant below pleaded non assumpsit, and two special pleas of set off, averring that Adam Jenner Ankrim, prior to the issuing of the domestic attachment, and the trustees, prior to the commencement of this suit, as trustees, &c., were indebted to the defendant in a larger sum than that claimed in this suit.</p> <p>The replications to the special pleas merely traversed the allegation that the plaintiffs, as trustees, were indebted, &c.</p> <p>Upon the trial, the plaintiffs, among other things, gave evidence that Adam Jenner Ankrim was a son of the defendant, Josiah Ankrim, and kept store in Jennerville, Chester county, near his father’s residence, for about one year, viz. from September 1825, to October, 1826, when he left the state, and his father took possession of the store, goods, and books, under circumstances tending to show a misunderstanding between them; that the father afterwards treated them as his own, sold out the goods, and collected some of the debts.</p> <p>The domestic attachment was issued on the 8th of September, 1827, and this suit commenced on the 23d of September, 1830.</p> <p>The defendant then proved that Adam Jenner Ankrim was indebted to his father in a large sum of money : That prior to leaving the state, he had married to his father’s displeasure: That he continued keeping the store until October, 1826, at which time, (according to his own deposition read in evidence in the case) he delivered up the keys of the store to his sister Marg aretta Ankrim, for the purpose of having them delivered to his father, that he might convert the effects of the store into the means of discharging the debt he then owed him : That he then resided in New Jersey, and was in business there, and intended to return to that state: That his father did not consent to his going into business as a storekeeper in the first instance, but afterwards became reconciled to it: That he was on such terms with his father, that he preferred delivering the keys to him through the hands of his sister, rather than directly to himself, and that it vyas his intention that his father should have his books of accounts, to collect the outstanding debts.</p> <p>He annexed to his deposition a statement showing the debts due to his father, and explained the nature of them. They appeared to have arisen from money lent, and from debts paid by the father for the son. It also appeared that the amount of these debts exceeded the value of the goods in the store, when the father took possession of it.</p> <p>The defendant’s counsel then called as a witness Delia Ankrim, and in connection with the evidence thus given, proposed to ask her the following question : — “ If you know any thing of a conversation, between Jenner Ankrim and his mother, as the agent of your father, respecting a transfer by Jenner of his property in the store, and the debts due to Jenner, to secure his father, state it.” The question was objected to by the plaintiffs’ counsel, and overruled by the court, who signed a bill of exceptions.</p> <p>The defendant’s counsel then put the following question to the same witness“ If you know that your mother was agent for your father, in obtaining a transfer by Jenner to his father of the store goods, and Jenner’s outstanding debts to secure his father for debts due to him, state what you know.” To which the witness answered thus: — “ I believe my mother was agent for my father; she was constituted agent by my father’s conversations.”</p> <p>The defendant’s counsel then put the following question to the witness : — “ Do you know of Jenner treating with your mother as agent of your father in the transfer of the store, books, &c. 1” This question being objected to by the plaintiffs’ counsel, was overruled by the court, upon which another bill of exceptions was tendered and sealed.</p> <p>The defendant’s counsel then requested the witness tosíate, “ what she knew of the transfer of the store by Jenner to his fatherto which the witness answered: “ I was not present when Jenner put father in possession of the keys; my father did get possession of that store about the 6th of October, or within a few days of it.”</p> <p>The defendant also proved, among other things, by Margaretta Ankrim, that Jenner gave her the keys about the 6th of October, 1826: That when he delivered them to her he requested her to hand them to her father, and tell him to manage the store in his own way, or make the best use of what was there: That she gave the keys to her father on the same evening, and she believed she mentioned to her father the statement her brother had made: That her father, the next morning took possession of the store and she attended it for her father, ever since it came into his possession: That it was at the time of the trial in her possession: That the value of the store goods at the time her father took possession was from twelve to fifteen hundred dollars, and that Jenner was not in possession of the store after the keys were delivered to her.</p> <p>After having examined several other witnesses, and given in evidence certain documents, the contents of which it is unnecessary to state, the defendant again called Delia Ankrim, and requested her, “ if she knew any thing of a negotiation between her mother (at the request of her father) and Jenner, but a short time previous to the delivery of the keys of the store to her sister Margaretta, respecting such delivery or transfer, to state it.” The question was objected to by the plaintiffs’ counsel, and the objection was sustained by the court, who sealed a third bill of exceptions.</p> <p>In conclusion, the defendant’s counsel requested the court to charge the jury as follows:</p> <p>“ 1st. Jenner was by law permitted to prefer the debt due to his father, and such preference did not render the transfer fraudulent.</p> <p>“ 2nd. The debts due to the defendant from Jenner before issuing the attachment, must be set off against the claim of the trustees, so as to bar a recovery by the plaintiffs, except for the balance, if any, after the set off</p> <p>“ 3rd. An assignment to an individual for his own use, in discharge of a debt to him, need not be recorded within thirty days, under the act of assembly.</p> <p>“ 4th. If the defendant by the authority of Jenner, cither as agent, care-taker, or manager for Jenner, or under a transfer to himself by Jenner, in discharge of, or in security for his debts, collected the outstanding debts of Jenner, then he has a right to set off the debts due to him from Jenner, before issuing the attachment.”</p> <p>The court gave the following answers in writing to these propositions, which, at the request of the defendant’s counsel, were filed of record:</p> <p>“ 1. The first is a correct abstract proposition, of the law of Pennsylvania, and is so laid down to this jury.</p> <p>“ 2. The pleas of set off in this case are wholly inapplicable; there was not, nor could there be any mutual dealings between the trustees, plaintiffs and defendants, which is the foundation of the right to set off. The tenth section of the act of 4th December, 1807, relative to domestic attachments, which has been so strongly relied upon to support the proposition, has no bearing upon this question, but only prescribes the duty of the trustees when they come to distribute the effects among the creditors ; they will, under that section, give the defendant his dividend of the effects, upon the real debt due to him, after allowing the proper set off, in respect to the dealings between him and Jenner Ankrim; therefore the debt due from Jenner before the issuing of the attachment cannot be set off against the claim of the trustees, but the money due on Jenner’s books, collected by the defendant, must go into the hands of the trustees for distribution amongst all the creditors; unless the jury shall believe it belongs to him in his own right, by virtue of a valid agreement and assignment before the attachment.</p> <p>“3. Affirmed by the court.-</p> <p>“ 4. Nothing short of a transfer or sale to Dr. Ankrim of the debts a due Jenner Ankrim, in consideration and satisfaction of a debt due to him, can prevent the trustees’ recovery; an authority given by Jenner to his father, as agent, care-taker, or manager for him, will not, as before stated, protect 1’rom the operation of a domestic attachment ; and there is no pretence for set off) as answered to the second of the two first propositions offered by the same counsel.”</p> <p>The jury found a verdict in favour of the plaintiffs below, for six hundred and forty dollars and fifty-four cents, and the defendant prosecuted this writ of error.</p> <p>The following errors were assigned in this court:</p> <p>1. The court erred in rejecting the evidence offered, as set out in the three several bills of exceptions.</p> <p>2. The court erred in their answer to the second and fourth propositions, as reduced to writing and filed.</p> <p>3. The plaintiff’s replications do not traverse a material allegation of the pleas, to wit: that the said Adam J. Ankrim was indebted to the defendant before and at the time of the issuing,of the domestic attachment.</p>

<p>in error.</p> <p>Where the action sounds in damages, judgment for the plaintiff on demurrer is interloeutory, and it is necessary before final judgment, that damages should be assessed by a jury. Until final judgment a writ of error does not lie.</p>

Writ of error to the Court of Common Pleas of Delaware County, The defendantin error was the plaintiff below. The nature of the ease, and the points decided, sufficiently appear from the opinion of the Court, which, after argument by Dick, S. Edwards and Kittera, for the plaintiff in error, and Lewis, J. Edwards, and Tilghman, for the defendant in error, was delivered by

<p>Certiorari.</p> <p>The act of assembly of 2d April, 1811, to incorporate the Union Canal Company of Pennsylvania,, does not authorise the company to erect a dam across the whole channel of the river Schuylkill; but the supplementary act of 20th Februaty, 1826, does authorise the erection of such a dam, and these acts being in pari materia must be construed as one act. Therefore the remedy provided by the 13th section of the act of 18U for injuries to property therein mentioned, may be applied to obtain redress for such injuries as the erection of the dam may produce directly end immediately to property, or as may be in all cases of the like kind the inevitable consequence of its erection under the authority contained in the act of 1826.</p> <p>The complainant, seeking a remedy under the acts above mentioned, must set out in his petition the nature of the alleged injury, and the particular ground of complaint, so that it may appear whether he claims damages for such an injury as the law provides a remedy for, or complains of damnum sine injut ia; and if he fails to do so, this court will quash the proceedings of a jury giving him damages, and the judgment of the Court of Quarter Sessions entered thereon.</p>

The defendants in error were plaintiffs, and the plaintiff in error defendant below. The cause was tried at a special court held by his honour Judge King. In giving theopinion of the court, the Chief Justice has fully stated the only question decided.

It appeared from the record of this case, returned on a writ of error to the Court of Common Pleas of Lehigh county, that C. L. Hutton was, on the 23d of December, 1826, commissioned prothonotary of Lehigh county, and on the 26th of the same month entered into a bond to the commonwealth, with security, in the sum of $4500, conditioned that he should “in all things well and faithfully execute the duties of his office, and pay over moneys to the state treasurer,” &c. On the…

<p>IN ERROR.</p> <p>The judgment of the Court of Common Pleas quashing an inquisition in a case of lunacy, is revisable by this court. But in such a case, a writ of error does not lie, The process by which the proceedings are to be removed is a certiorari.</p> <p>It seems, however, that the judgment of the Court of Common Pleas, after pleading to issue on a traverse of the inquisition, is revisable on a writ of error.</p>

This was an ejectment originally brought in the Court of Common' Pleas of Montgomery county, by Peter Fritz against Christopher M. Hooker, for a tract of land and marble quarry, with the buildings thereon, situate in Whitemarsh township, in the county of Montgomery, containing twenty acres forty perches, an equal undivided moiety of which the plaintiff claimed under a deed executed to him by the defendant, in May, 1829.

This was an appeal from the decision of the Court of Common Pleas of Delaware County, in the distribution of the proceeds of real estate sold by the sheriff under execution. From the record it appeared, that on the thirtieth of December, 1830, a judgment was confessed in the court of Common Pleas of Delaware county, by John Caldwell, in favour of Jinn Black, on a bond of the same date, conditioned for the payment of six hundred dollars on the same day.

<p>This was a motion to set aside a non-suit directed by the Chief Justice at Nisi Prius.</p> <p>The case was this. Mary M‘ Williams, the plaintiff, administratrix of James M‘Williams, deceased, brought suit against one Clark for embezzling the effects of the deceased. She employed Samuel Ewing, esquire, as her counsel, who obtained judgment against Clark, but in consequence of his alleged neglect, and violation of instructions, the plaintiff derived no advantage from the judgment, Clark having escaped by reason of the insufficiency of his bail. The imputed ne'glect was an omission to give the plaintiff notice of bail having been put in, by which the plaintiff was prevented from excepting to them on the ground of insufficiency.</p> <p>The plaintiff brought suit against Mr. Ewing for this alleged violation of orders and neglect of duty, and in this suit employed Joseph R. Hopkins, esquire, the present defendant, as her counsel, who received a fee, entered his name on the record as her attorney, was often consulted in reference to the suit, and filed a declaration, but in consequence, as was alleged, of his neglect to file a declaration for more than a year, though often requested to do so, the defendant in that suit, Mr. Eioing, entered a non pros, Mr. Hopkins, it was alleged, continued for two years afterwards to act as the counsel of the plaintiff, encouraging her to believe that the cause would speedily come to trial, and giving her no notice of the non-suit.</p> <p>On the death of Mr. Ewing, nearly three years after the suit had been brought against him, the plaintiff discovered the non-suit, and for the neglect imputed to Mr. Hopkins in conducting the suit against Mr. Ewing, the present action was brought.</p> <p>On the trial of the cause, the defendant’s counsel moved for a non-suit on account of an alleged defect in the plaintiff’s administration bond, which was given by the plaintiff with one surety only. The letters of administration granted on this bond, were those on which Mr. Ewing brought the original suit. On the twentieth of November, 1829, a new bond was given in pursuance of an order of the Orphans’ Court, but no new letters of administration were granted.</p> <p>His Honour directed a non-suit to be entered, with leave to move to take it off.</p>

<p>IN ERROR.</p> <p>A bank in Philadelphia received on the fifth of October, 1896, from a mercantile house in the same place, one of the members of which was a director of the bank and conversant with its modes of doing business, two drafts, payable ten days after sight, upon two mercantile houses in Virginia, to be transmitted to a bank in Virginia for collection, with instructions as to the manner in which they were to be presented. The bills were drawn by the house which deposited them to their own order, and they endorsed them. They were also endorsed by the cashier of the bank, with a direction to pay them to the order of the cashier of the Bank of Virginia. The day after they were received, the cashier of the hank in Philadelphia enclosed them in a letter directed to the cashier of the Bank of Virginia, in which he stated that “ the bills are enclosed &r our account.” When they were received by the bank in Philadelphia, they were entered in short in tile bank book of the depositors. On the twenty-eighth of October, when a sufficient time had elapsed, according to common usage, the note clerk extended the bills in the books of the bank to the credit of the depositors, and a few days afterwards, at the request of the depositors, they were extended in their bank book. On the eighth or ninth of April, 1897, the depositors were apprised, for the first time, of the non-payment of the bills, and this fact came to the knowledge of the hank in Philadelphia about the twenty-sixth of the same month. The bank book of the depositors had in the meantime been settled seven times. One of the depositors was a stockholder in the bank in Philadelphia, and on offering to transfer his stock, permission to do so was refused on the part of the bank, under the eleventh article of the act of the twenty-fifth of March, 1890, which provides, that no stockholder indebted to the bank, for a debt actually due and unpaid, shall be authorized to transfer his stock or receive a dividend, until such debt is discharged or security to the satisfaction of the directors be given for the same. In consequence of this refusal, the stockholder brought suit against the bank, by whom no tender of the bills had been made to the firm : Held—</p> <p>1st. That the bank in which the bills were deposited having received them for transmission only, had fulfilled its duty by sending them for collection, with the instructions of the depositors, to the Bank of Virginia, for whose laches it was not responsible.</p> <p>2. That although the extension of the bills in the books of the bank, and the bank book of the depositors, was equivalent to payment, yet having been done under mutual mistake, the bank was not bound by it.</p> <p>3. That the cashier having endorsed the bills, did not alter the legal relation of the parties, or add to the responsibility of the bank.</p> <p>4. That the settlements of the depositors’ bank book, did not alter the rights of either party. _</p> <p>_ 5. That it was not necessary for the bank to tender the bills to the depositors.</p> <p>6. That the bank had a right to refuse to permit a transfer of the stock of one of the firm, for a debt due from the partnership.</p> <p>7. That the security for the alleged debt arising from the deposits of the firm, was not such as the bank was bound to take.</p> <p>8. That even if the firm had a balance in bank more than sufficient to pay the amount of the bills at the time permission to transfer was refused, yet the bank was justifiable, under the circumstances of the case, in refusing to allow the transfer to he made.</p> <p>It seems, that if the hank in Philadelphia had entered into a special agreement, or received a pecuniary reward for its services in collecting the bills, beyond a mere charge to cover expenses, and the Bank of Virginia was its agent for that purpose, it would have been responsible for the neglect of such agent, and an action might have been maintained for damages commensurate with the injury sustained in consequence of such neglect.</p>

<p>IN ERROR.</p> <p>A deposition read by one party on the argument of a rule to show cause why a feigned issue should not be directed to try his right to money in court, cannot be read in evidence by the opposite party on the trial ot the issue, when the witness is himself in court, and capable of being examined.</p> <p>Perhaps the reading of the deposition might he deemed an admission of the competency of the witness, so far as respects existing objections on the side of the party reading it, but it cannot be deemed such an admission of its contents, as to supercede the rule that the best evidence in the power of the party must be given.</p> <p>On the trial of a feigned issue, to try the right of B, to have and receive, according to the amount of his liens, (under the revival by scire facias of certain judgments, the lien of which had expired by lapse of time) the money in court, in which it was agreed that the defendants in the issue should be entitled to the benefit of any question that might arise in relation to the lien of a judgment of revival, or under the original judgment, the defendants cannot inquire into the consideration of such judgments, or travel into the cause of action on which they were founded.</p> <p>Where real estate held in the name of R. but really the property of 21 is mortgaged by R. at the instance of 21 and lor his benefit, T. is the real mortgagor; and if it be sold by the sheriff by virtue of proceedings on the mortgage, a judgment creditor of 21 is entitled to the surplus proceeds of the sale, in preference to a subsequent judgment creditor of R. who at the time of obtaining his judgment, was acquainted with all the circumstances of the ownership of the property, and of its being held by R. for the purpose of evading prior judgments against 2'.</p> <p>Notice given by a judgment creditor of 21 at a sheriff’s sale of a leasehold interest as the property of R, that it was not really the property of R. but of 21, and that his judgment was a hen upon it as such, is not an election to resort to that source for payment, and a waiver of his right to a fund on which he has a good claim, and which is available for the payment of his debt.</p> <p>Under the act of the sixteenth of April, 1827, “ relative to the distribution of money arising from sheriffs’ and coroners’ sales,” the court has a right, where the estate has been sold as the property of it. under process against him, but is alleged to have been really the property of 21 to direct a feigned issue to try the right of a judgment creditor of 21 to the money in court.</p>

On a writ of error to the District Court for the City and County of Philadelphia., it appeared, that this suit was brought by the defendants in error, Martin and William Gaul, surviving partners of the firm of Frederick Gaul Sons, against the plaintiff in error, Daniel J. Rhoads, for goods sold and delivered, to which the defendant below pleaded non assumpsit and payment.

<p>IN ERROR.</p> <p>Where a plaintiff makes an entry of goods sold upon a card, with pen and ink, and the same evening or the next day transcribes the entries into a book, the book is to be considered as the book of original entries of the plaintiff, and may be read in evidence to the jury, and the material on which the entry was first written, or its size and shape, are indifferent.</p>

<p>IN' ERROR.</p> <p>If the plaintiff and defendant in an action of partition, have by agreement, made partition between them, by which certain parts of the property are united to form one division, and certain other parts to form the other division, the opinion of witnesses is not admissible in evidence to shew that a more equal and convenient partition might have been made by a different arrangement of the parts.</p> <p>It is no reason for reversing a judgment, that the court below rejected “ sundry documents, letters and other papers,” not brought up with the record or in any way connected with it, but stated in the bill of exceptions to have been “ to and from the parties in the suit touching the premises in question, and matters in dispute,” and to have been offered by the plaintiffin error as rebutting evidence to the jury, though similar “letters, documents and other papers as to dates” were previously read by the opposite counsel without objection by the counsel of the plaintiffin error, and without its having been adverted to by the judge, that they were dated after suit brought; and though the judge rejected the documents, letters and other papers offered, on account oftheir being dated after the commencement of the action.</p> <p>A submission of all matters in variance between the parties, is sufficient to authorize the arbitrators to award a partition of real estate, and to direct in what manner it shall be executed, provided the partition of the property in question, was one of the matters in variance at the time of the submission,; but if the dispute arose afterwards, an award upon it, is void for want of authority on the part of the arbitrators to make it.</p> <p>A parol agreement for the partition oflands, is within the act .of assembly for the prevention of frauds and perjuries, and does not pass the right which one party bad at the time of the agreement to the other, in that part of tile property allotted by the agreement to he held in severalty by the latter.</p> <p>Nor are the facts of one of the parties employing and giving instructions to a scrivener to draw deeds for carrying the partition into effect, and going on the property with an artist and measuring off and designating the lines of division, according to the agreement, for the purpose of enabling the scrivener to draw the .deeds and to describe the several allotments with accuracy, or of the other party withdrawing from the possession of that part of it which was by the agreement allotted .to the former, and declaring that he held exclusive possession of the residue, which he intended to hold in severalty, according to the alleged agreement, such a part execution of the agreement as will taka it eut of the act against frauds and perjuries.</p> <p>If the legal title to real estate be vested exclusively in one of two tenants in common, and the right of the other is merely equitable, being a trust resulting by operation of law from the purchase having been made with their joint funds, it is necessary under the act for the prevention of frauds and perjuries, that an agreement of partition should be in writing and signed by the parties or their agents, thereunto lawfully authorized in writing; and a parol agreement to make partition will vest no title either in the party holding the legal estate, or in him who has only an equitable interest, in the shares respectively allotted to each.</p> <p>Arbitrators without a submission in writing, can neither make partition of real property between the parties, nor award a partition to be made, so as to pass the interest of each party to the other, in their respective shares.</p> <p>An award of arbitrators “ that the partition of the High street and Seventh street property agreed between the parties, according to the plan of ill. B. shall be carried into effect,” is void for uncertainty.</p>

<p>IN ERROR.</p> <p>A release of a pecuniary legacy charged upon land, not executed before at least two competent subscribing witnesses, is not within the provisions of the act of fifteenth of April 1828; and therefore a certified copy of it from the recorder of the county, is not admissible in evidence under that act.</p> <p>A release of such a legacy is not such a deed, conveyance or writing, as passes or creates any right or interest, in or to the land on which it is charged, and consequently is not embraced by any of the acts of assembly, provided for the recording of deeds and conveyances or other writings, made of and concerning lands lying within this state.</p> <p>It seems, that under the act of the eighteenth of March, 1775, conveyances, although not under the hands and seals of the parties respectively executing the same, “ of or concerning any lands, &c. or whereby the same may be in any way affected in law or equity,” may be recorded, after having been proved or acknowledged in the manner prescribed by law, and exemplifications of them read in evidence.</p> <p>The lien of a legacy charged upon land is discharged by a judicial sale of the land, though the legacy is payable by instalments, some of which are not due at the time of the sale.</p> <p>Where a release of a legacy charged upon land has been given in evidence, the record of a judgment on a bond given by the devisee of the land to the legatee, which from the declaration appears to have been of the same date as the release, is competent evidence, in an action brought to recover the amount of the legacy, to show, not only the fact that the judgment was had, but also its amount, and the consideration or cause of action, for which it was rendered.</p> <p>The sheriff has no right, power or authority to sell land subject to one lien and discharged from another, without the consent of all the parties concerned.</p> <p>Where a legacy is charged upon land and payable by instalments, and the testator in a subsequent _ clause of his will, declares that it is his will and desire, that the legatee “ shall receive no principal, but receive file interest as it becomes due," the whole legacy is vested and the legatee may release it to the devisee of the land.</p>

<p>IN ERROR.</p> <p>An absolute and unconditional promise by one who has been discharged by the insolvent laws of this commonwealth, to pay a debt which existed before his discharge, creates a new contract upon which 6uit may be brought.</p>

' Appeal from the decree of the Court of Common Pleas of Philadelphia County, dismissing, with costs, the libel of John Ristine, praying for a divorce from his wife Elizabeth Ristine. ' ■ The libel set forth that the parties were married on the nineteenth of November, 1819, ‘and lived together until November, 1823, and that since that time the respondent had “wilfully and maliciously deserted, and absented herself from the habitation of the libellant without any just or…

In this suit, which was an action on the case brought in this court by Alexander Dundass to the use of Alexander Dougherty against Martha Bladen, the writ was returnable on the return day in July, 1833. The plaintiff on the fifth of August, 1833, took out a rule of arbitration, and on the twenty-eighth of the same month an award of arbitrators in his favour was filed for seven hundred and ninety-seven dollars, fifty-four cents.

<p>IN ERROR.</p> <p>An indictment for stealing three promissory notes for the payment of money, commonly called bank notes, on the Bank of the United States, is good.</p> <p>In an indictment for stealing promissory notes for the payment of money, drawn by a bank, it is not necessary to state that the bank was duly incorporated.</p> <p>Nor is it necessary that it should aver that the notes charged to have been stolen were due and unpaid</p>

This was an appeal from the decree of the Orphans’ Court of Chester county, confirming the guardianship account of the appellees, Edward Siter and Dewalt Beaver, guardians of Ann Jordan late Siter. The appeal was taken by Hiram Taylor, who after the death of her first husband, Jordan, intermarried with the ward. The facts material to the point made here were these.