Volume 4 — Watts's Pennsylvania Reports

This was an action of debt on book account by Michael Dellone against Frederick Rehmer’s administrator.

This was an action of debt by Hugh Scott against Isaac M’Cord.The plaintiff entered a rule of reference on the 21st of August 1832, and… Held: and they were condemned. A venditioni exponas was issued to January term 1833, which was returned “ stayed by plaintiff.” An alias venditioni exponas was issued to April term 1833, upon which part of the estate levied was sold. A pluries venditioni exponas was issued to August term 1833, upon which the residue of the estate was sold.

<p>The debt of a decedent does not remain a lien on his estate in the hands of an heir longer than seven years.</p>

Joseph Burd and William Burd were the administrators of John M’Gregor deceased; and as such, on the I6th day of May 1821, in the orphan’s court of Cumberland county, settled their account, on which there was found to be a balance in their hands of 6986 dollars 37 cents, subject to distribution according to law; a certificate of which, under the act of assembly, was filed on the 18th day of October 1832, in the common pleas of Cumberland county.

This was an action of debt by the United States against the executors of Alexander Sharp, upon this bond : “ Know all men by these presents, that we, John Laughlin, Jun., of the township of Mifflin, in the county of Cumberland, in the state of Pennsylvania, and Alexander Sharp and William Laughlin in the county of Cumberland, in the state of Pennsylvania, are held and firmly bound unto the United States of America in the sum of 637 dollars, money of the United States, in…

All the facts which gave rise to the questions of law determined, are sufficiently stated in the opinion of the court. The cause was argued by

<p>Upon a judgment by a justice for the plaintiff, an appeal to the common pleas by the defendant, a reference to arbitrators and award for defendant, an appeal by plaintiff, and a verdict for the plaintiff for a sum less than the judgment of the justice, the judgment must be without costs since the appeal from the justice.</p>

<p>ERROR to the common pleas of Cumberland county.</p> <p>This action was assumpsit by Thomas Bell against John Agnew, in which the following facts appeared:</p> <p>On the 2d day of March 1832, Alexander Oliver executed a negotiable note for his own use and accommodation for 2000 dollars to Thomas Bell and John Agnew, joint payees, and thereupon the payees, Thomas Bell and John Agnew, indorsed the same note to the Lebanon Bank, and the bank, by way of accommodation or loan to Alexander Oliver, paid the amount of it to him. Before and at the time of the indorsement of the note by John Agnew, for his indemnity for so doing, he took a judgment against Alexander Oliver, which is entered of January term 1832, No. 121, for 2000 dollars, on the following agreement:</p> <p>“John Agnew v. Alexander Oliver. Amicable action in the court of common pleas of Cumberland county.</p> <p>“ I, Alexander Oliver, the above named defendant, do hereby agree to appear to this amicable action and confess judgment thereon to John Agnew, the plaintiff, for the sum of 2000 dollars, with costs of suit, release of errors, and stay of execution for sixty days from this date. Witness my hand and seal, this 2d day of March, A. D. 1832.</p> <p>“Alexander Oliver, [l. s.].</p> <p>“ Witnesses present—John Main, Alfred Creegh.”</p> <p>Alexander Oliver, by actual payments, reduced the note to the sum of 1000 dollars, and failing to make further payment, the bank, to November term 1833, brought suit against him,'as also a suit against his said indorsers, and obtained judgments thereon at January term 1834: and John Agnew issued execution on his judgment, aforesaid against Alexander Oliver, levied on his real estate bound by it, and sold the same by writ returnable to August term 1834, for the sum of 825 dollars. This money being in court for appropriation, the court directed it to be paid in satisfaction, as far it would go, of the judgment of the Lebanon Bank against Thomas Bell and John Agnew. This money paid more than half of this judgment, but there remained a balance of debt, interest and the costs, amounting to the sum of 277 dollars 50 cents, for which the defendants were liable to the bank, and now paid by plaintiff on compulsory process; and the question for decision is, whether, as between the .said indorsers, John Agnew and Thomas Bell, Thomas Bell is equally entitled to the benefit of said judgment, and to the money raised by virtue of it, with John Agnew, and John Agnew liable to the right of contribution on the part of Thomas Bell for the half of the balance that remains unpaid of the judgment against them, he the said Thomas Bell having paid to said bank the whole of said balance.</p> <p>The court below (Reed, president} rendered a judgment for the plaintiff.</p>

The controversy in this case was, who was entitled to letters of administration cum testamento annexo of Leonard Ellmaker deceased. A caveat had been entered to the probate of the will of Leonard Ell-maker, which resulted in an issue of devisavit vel non, sent to the common pleas. During the pendency of this issue, letters of administration pendente lite were granted to Jacob Swartzwaller, who was the husband of one of the daughters of the testator.

<p>General covenants providing for the settlement, by" arbitration, of disputes that may arise between the contracting parties, do not take away the jurisdiction of the courts.</p> <p>Upon a sale by execution of the personal property of a tenant, on demised premises, the landlord is entitled to have, out of the proceeds of such sale, the amount of rent due to him, not exceeding one year: but if the landlord had, previously to the levy and sale, distrained the property, and the tenant had replevied the same, he would not be entitled to have out of the proceeds of the sale by the sheriff any other amount of rent than that which accrued subsequently tó the distress.</p> <p>The rule that a set-off is not admissible in an action of replevin, is not applicable upon the trial of a feigned issue to ascertain whether there is any rent due by a tenant to his landlord.</p>

<p>Every intendment of fact is to be made in support of a judgment of the court of common pleas.</p> <p>In a joint action of debt against two, arbitrators, to whom the cause was referred, reported against one defendant, and in favour of the other, from which there was no appeal. Upon a sale of the defendant’s real estate, against whom' the award was made, and the money being brought into court for appropriation, it was held, that the plaintiff was entitled to have the amount of the judgment out of the money in court, although a writ of error was pending, upon which the validity of the judgment would be tried.</p>

This was an action of debt on book account by Abraham Oves, surviving partner of Jacob Miller, against the administrators of Gawin Henry deceased, in which the following evidence gave rise to the points determined. Peter Miller, being duly sworn, said: “ This is the book of original entries of Oves and Miller. I was clerk of that firm” (upon which the account was given in evidence, except cash entries). The plaintiff then offered an account produced by defendants on notice.

THIS was an action of debt on bond by David Hummel against the administrators of Nicholas B. Wood deceased, who was co-obligor with George Pearson. The only question which arose in the cause was, whether the bond on which suit was brought was several, upon which an action could be maintained against the representatives of a deceased co-obligor in the lifetime of the other obligor.

This was a qui tam action by John Griffith against Jacob Eshelman for taking usurious interest. On the trial of the cause the defendant cross-examined a witness of the plaintiff on subject^ which were irrelevant to the issue, and then offered evidence to prove that the witness had testified falsely on those subjects; the evidence was received and the plaintiff took a bill of exceptions.

<p>ERROR to the common pleas of Cumberland county.</p> <p>This was an action of debt on bond by George Beetim, Esq. for the use of the Bank of Ghambersbuvg and the Bank of the United States, against James Buchanan, Esq., in which the following special verdict was found :</p> <p>William Ramsey, Esq. was in his lifetime seised of several parcels of land and real estate. A judgment was obtained by the Bank of Chambersburg against said Ramsey in' his lifetime ; and another in favour of the Pennsylvania Agricultural'and Manufacturers’ Bank, for the use of the Bank of the United States against said Ramsey in his lifetime : both of which judgments were liens on that part of the real estate of said defendant (William Ramsey) hereafter described, prior in date to the mortgage hereafter mentioned of said Ramsey to the defendant, James Buchanan, Esq. That the said James Buchanan held the bond of the said William Ramsey for 3000 dollars; to secure the payment of which he held a mortgage executed by said Ramsey in his lifetime regularly recorded, but posterior in date to the aforesaid judgments, upon real estate of said mortgagor, situate in North Middleton township, at Sterrett’s Gap. After the death of said Ramsey, the said James Buchanan obtained judgment, against the administrator of said Ramsey on said mortgage bonds, issued executions, and sold the said mortgaged premises; which were struck off by the sheriff of Cumberland county to the said James Buchanan for the sum of 3000 dollars, on the 13th of June 1832. On the same day C. B. Penrose, Esq., on behalf of said Buchanan, executed and delivered to said sheriff, George Beetim, Esq. his judgment bond, conditioned “for the payment of said sum of 3000 dollars, on or before the 15th of August 1832, or according to the decree of the court;” on which said last mentioned day the said sheriff executed and delivered a deed in due form of law for said premises to said Buchanan, who took possession, and has held the same, and received the rents and profits thereof ever since. The said William Ramsey died largely indebted; and application was made on the part of several of his creditors for a rule upon said sheriff to bring said purchase money into court for appropriation ; and on the 17th of August 1832, by consent of parties, the said purchase money, although not actually paid to the sheriff,' was considered as in court, and a rule for the appropriation thereof was made by the court. The same rule came on for argument on the 19th of August 1833 ; and the court on that day made a final decree: from which an appeal was taken to the supreme court by creditors of said Ramsey other than the parties to this action. The supreme court on the day of June 1834, affirmed the decree of the court of common pleas, except so far as to give the said Bank of Chambersburg the whole of the debt (after deducting the dividends on the bank stock in said bank, held by the said William Ramsey’s estate) out of the said purchase money, instead of the balance only of its debt after deducting both stock and dividends. The stock of said Ramsey remained unsold until September 1834, and dividends thereon from November 1832 to May 1834 exclusive, amounting to 108 dollars, were declared and credited by said bank. The sum payable to the Bank of Chambersburg on its judgment out of said purchase money, agreeably to the decree of the supreme court, is 1165 dollars and 27 cents, with interest thereon from the 2d of August 1829; and the sum payable, agreeably to said decree, on the judgment of the Bank of the United States out of said purchase money, is 396 dollars 51 cents, with interest thereon from the 11th of November 1828. On the 22d of September 1834, the said James Buchanan, Esq. paid to the said Bank of Chambersburg the balance of the principal and interest due on their judgment on the 15th of August 1832, excepting 108 dollars, the amount of the dividends before mentioned; which he alleges should be applied, together with the stock aforesaid, to his use from that date, as per statement hereto annexed, marked A. He has also paid to the Bank of the United States the balance of principal and interest due on their judgment on the said 15th of August 1832. The said banks respectively claim interest on the several judgments from the said 15th of August 1832 up to the said 22d of September 1834, the time of said payments by defendant, as per statement marked B and C; and especially does the Bank of Chambersburg claim to hold the said 108 dollars of dividends on account of the interest which accrued on their judgment against said Ramsey, after said 15th of August 1832. The said James Buchanan admits his liability in this suit to pay such sums as the said banks respectively are entitled to'receive under and by virtue of said sale and -final decree, as fully as the said banks would be entitled to recover of said C. B. Penrose, if suit had been brought against him the said Charles B. Penrose, on the aforesaid bond, in the name of the said George Beetim, Esq. for the use of the said banks; but he denies the right of said banks, or either of them, to recover interest for their debt or any part thereof after the 15th day of August 1832. It is agreed by the parties that the court shall render such judgment on this special verdict as the facts stated will warrant, according to the legal rights of the parties respectively.</p> <p>A.</p> <p>Bank of Chambersburg v. William Ramsey.</p> <p>Balance due 22d August 1829, ... $1,165 27</p> <p>Interest from 22d August 1829 till 15th August 1832, 208 58</p> <p>1,373 85</p> <p>Deduct dividends of November 1829, May and November 1830, May and November 1831, and May 1832: each 27 dollars, - - - - 162 00</p> <p>1,211 85</p> <p>1834, September 22.—By cash from Mr Buchanan, proceeds of sale of bank stock, through his attorney, C. B. Penrose, Esq. $861 03 Cash from C. B. Penrose, Esq. - - 242 82 1,103 85</p> <p>108 00</p> <p>Amount of dividends declared on the bank stock, between 15th August 1832 and 22d September 1834, and which Mr Buchanan claims to be credited with, as so much money paid by him, but which the Bank of Chambers-burg claims to retain in part of the interest accrued on their judgment, between the 15th day of August 1832 and 22d September 1834, - - - - 108 00</p> <p>B.</p> <p>Bank of Chambersburg v. William Ramsey.</p> <p>Balance due 22d August 1829, ... $1,165 27</p> <p>Interest from 22d August 1829 till 22d September 1834, 355 60</p> <p>1,520 87</p> <p>Deduct dividends declared between 22d August 1829 and 22d September 1834, - 270 00</p> <p>Balance due Bank of Chambersburg on 22d Sept. 1834, 1,250 87</p> <p>1834, September 22.—By cash from Mr Buchanan, per sheriff of Franklin county, $861 03 Cash from Mr Buchanan, per C. B. Penrose, 242 83 1,103 85</p> <p>Sum, claimed by Bank of Chambersburg, as still due to it, with interest from 22d September 1834, - - 147 02</p> <p>c.</p> <p>Bank of the United States v. William Ramsey.</p> <p>Balance due 11th November 1828, - $396 51</p> <p>Interest till 22d September 1834, - - - • 139 50</p> <p>536 01</p> <p>1834, September 22.—By cash from Mr Buchanan, per Mr Penrose, - - 486 06</p> <p>Sum claimed by Bank of the United States, as still due to it, with interest from 22d September 1834, - 49 95</p> <p>The court below (Reed, president) rendered a judgment for the defendant.</p>

On the 7th of June 1833, this action of replevin was instituted by Edwards, plaintiff below, against Etter, defendant below,-to recover twenty thousand feet of white pine boards, of the value of 12 dollars per thousand, part of a larger quantity, alleged by the plaintiff to have gone adrift about the middle of May, from Northumberland, and found in possession of defendant., on an island in the Susquehanna river, claimed and possessed by defendant, a short distance below…

This was an action of debt on an insolvent bond by William Woods against Peter Stepney and Thomas Kelly, Esq., in which the following facts appeared.

William Ramsey died seised of real estate in Cumberland county, and also in Perry county, and of personal estate; all of which was sold by the administrator: and the orphan’s court appointed auditors to marshal and distribute the same among his creditors, whose debts were of all grades.

<p>ERROR to the common pleas of Franklin county.</p> <p>This was an action of slander, by David Zentmyer against John Welty, in which the following agreement was made by the parties, and filed with the record.</p> <p>“ It is hereby agreed by the parties in this cause, that all proceedings heretofore had in Franklin county, in two different suits, in the court aforesaid, there pending, brought by said Zentmyer against said Welty, as also the proceedings in the court of common pleas in Washington county, in a certain case of attachment, brought by said Welty against Zentmyer, are to be stayed; as it is hereby further agreed, that all matters in variance between the parties, including as well the causes of action in the aforementioned suits as every thing else in controversy between the parties, is to be finally and conclusively adjusted, without the right of appeal to either, by reference to three arbitrators, this day chosen by the parties; viz. James Reilly, Esq., William Cooper and Abraham Row.' The costs which have already accrued on the various suits alluded to, are to be taxed in this suit, and paid by the losing party. Witness the hands and seals of the parties aforesaid, this 12th November 1834.</p> <p>“ If the arbitrators shall find any thing to be due to defendant, an award is to be made by them in favour of defendant, under the act of 1705, to be entered accordingly, and to be collected under the provisions of said act. Arbitrators to meet, on Thursday the 18th of December 1834, at the house of Michael Stoner, in Waynesburg, at 2 o’clock, P. M.”</p> <p>Whereupon the prothonotary made out the following rule of reference, and delivered a copy of it to each of the parties :</p> <p>“ Agreeably to an act of assembly, entitled an act supplementary to an act entitled an act to regulate arbitrations and proceedings in courts of justice, passed the 29th day of March 1810, all matters in variance in this suit, between the parties, are referred to James Reilly, Abraham Row and Alexander Hamilton, arbitrators chosen by the parties; who are to meet at the house of Michael Stoner, in the borough of Chambersburg, in said county, on Thursday the 18th day of December next, at 2 o’clock in the afternoon of said day ; and they, or a majority of them, or such other persons as may be substituted in pursuance of said act, are to make report of their determination into the prothonotary’s office, at Chambersburg, within seven days after they shall have agreed on the same. The said arbitrators receiving fifteen days’ previous notice of the time and place appointed for the meeting.</p> <p>“John Flanagan, Prothonotary.</p> <p>“ Prothonotary’s office, Chambersburg, November 12th, 1834.”</p> <p>The parties appeared before the referees and tried their cause, and a report was made and signed by two of the referees, in favour of the plaintiff. Exceptions were filed to the report; but they were overruled by the court below, (Thompson, president, dissenting) and judgment rendered for the plaintiff, on the award. The only error insisted on was, that the award was signed but by two of the referees.</p>

APPEAL by Davis Clemson, administrator de bonis non cum testamentó annexo of Leonard EUmaker deceased, from the decree of the orphan’s court of Lancaster county, upon the settlement of the administration account of Jacob Swartswalter, administrator pendente lite of Leonard EUmaker deceased.

<p>An infant may, in some cases, bind himself for necessaries; but he cannot do so when he has got a guardian or parent to supply his wants.</p> <p>The execution of an indenture of apprenticeship by a minor, without the consent of his guardian, is null and void ; and if the covenants be not complied with on his part, no action will lie against him for the breach of it.</p>

Joseph Dickinson and wife brought this action for a legacy against the executor of Isaac Lee deceased. William Lee was a son of, and died before the testator, leaving children, to one of whom the plaintiff was married ; and the only question in the cause arises out of the construction of the last clause of the following will of Isaac Lee deceased: “ Item.

<p>It is the business of a guardian to manage in person the estate of his ward, for the ward’s benefit. He cannot set up his ward in business, but at his own risk.</p>

This was an action of ejectment by Richard Miles, administrator de bonis non of William Junkin deceased, against Joseph Price and John Moist. William Junkin, by his will, appointed David Lusk to be the executor, with power to sell his real estate. The executor offered the land for sale at public vendue, and sold the same to Joseph Price, one of the defendants, for 3100 dollars.

WRIT of error to the district court of Lancaster county. This was an action for money had and received by Margaret Ell-maker against William Hiesler, administrator of Isaac Ellmaker deceased ; in which the plaintiff claimed to recover*,7746 dollars wilh interest, being the one third of the personal estate of her husband, the defendant’s intestate.

WRIT of error to the common pleas of Dauphin county. This was an action by James Brisbane against the Harrisburg Bank for refusing to permit him to assign eight shares of the capital stock of the bank, and also for certain dividends declared upon the said stock. The case is very fully stated in the opinion of the Court, which was delivered by¡,

This was an appropriation of the proceeds of the sale of the real estate of John Douglass. The claimants were the Harrisburg Bank and James Wilson. The judgments stood thus: George Parson v. John Douglass. Judgment 4000 dollars. Entered the 9th of March 1831.

This was an action of replevin by George Franciseus against Emanuel C. Reigart, for personal property of the plaintiff, which had been distrained for rent by the defendant; to which the defendant… Held: that the agent to distrain may not be authorized verbally and without writing. On the contrary, although appointments by a corporation aggregate must be by deed, yet it has been held that a corporation may appoint a bailiff to distrain without deed or warrant.

ERROR, to the district court of York county. This was an action of trover by Thomas C. Jenkins against Adam Eichelberger and others.

■ERROR to the common pleas of Lebanon county. Jacob Nagle, sheriff, by virtue of a. fieri facias, at the suit of Jacob Frick against Jacob Heft., levied upon fifty barrels of whiskey, and other personal property in the possession of the defendant in the execution. When the levy was made, notice was given to the sheriff that the property belonged to William Stroh ; but he was indemnified by the plaintiff, and disregarded the notice.

.This was an action of debt for a legacy under the will of Frederick Dentler deceased, by Christiana Spruneberger, lately Christiana Dentler, against the executors of Frederick Dentler deceased, with notice to John Warner and others, terre tenants. The legacy, when claimed, amounted to about 170 dollars.

This action was by Henry Schriver against Jacob A. Fisher, administrator of Alexander Cobeau.

This was an action of ejectment by Samuel Snyder against Josiah Bowman.

<p>All assets of a decedent’s estate must come to the hands, of his personal representative : a payment of money of the estate to any one else is a mispayment, and it may be recovered back from the person who received it.</p>

This was an aclion of ejectment by John Schall and Frederick Lauderbrun against Peter Zerbe, for three hundred and twenty-two acres of land. Plaintiffs claim under an improvement made on the land by John Adams, commenced in the year 1800, whose title was vested in the plaintiffs, who had obtained a patent for the land in 1828.

This was an action by O’Brien, Dunbar & Co. against Jacob Lishy, on a note drawn by Jacob Wilden, Lewis W. Lishy and Jacob Lishy.

This was an action of debt by the administrator of Peter Dinkle, against the executor of Catherine Candler, to recover a legacy under the will of David Candler deceased, in which these facts appeared.

WRIT of error to Susquehanna county. This was an ejectment brought to recover part of two tracts of land, surveyed on two warrants, in the names of J. Dunlap and Susanna Woodrow, described particularly in the writ: defence was taken for one hundred and nine acres and one hundred and nineteen perches, also specially designated.

<p>The associate judges of the court of common pleas have not jurisdiction to hear and determine a motion for a new trial in a case where the president judge, before his appointment, was concerned as counsel: but such case must be certified to the nearest president judge, in pursuance of the acts of assembly providing for the holding of special courts;</p> <p>Cases of divorce are within the meaning of the acts of assembly authorizing the holding of special courts.</p> <p>Quiere. Whether a mandamus may be issued by the supreme court to the court of common pleas.</p>

<p>The amount of a judgment, which has been assigned by general terms, and the payment of it guarantied, is not to be controlled by a statement in figures annexed to the assignment. The guarantee is of a contingency, not of an amount which either party may certainly ascertain by a recurrence to the record.</p>

<p>ERROR to the common pleas of Huntingdon county.</p> <p>The facts of this case are fully stated in the opinion of the Court, which was delivered by</p>

<p>On the trial of an issue of devisavit vel non, it is not competent to prove that the testator had a dislike to one of the subscribing witnesses to the will, when such fact does not appear to be relevant. Nor is it competent to ask a subscribing witness whether he would have attested the will had he known the dispositions contained in it, as evidence of fraud or imbecility.</p> <p>An unexecuted agreement of compromise by the parties to an issue, is not evidence on the trial.</p> <p>The refusal of a trial court to permit depositions taken before the register to prove a will, to be sent out with the jury, is discretionary, and therefore not the subject of a writ of error.</p>

<p>ERROR to the common pleas of Dauphin county.</p> <p>This was an action of debt, founded on a recognizance, in which the Commonwealth for the use of John Stewart and wife was plaintiff ; and Joseph Moody, co-recognizor, with John Wallace and James Porter, were defendants.</p> <p>The plaintiff’s wife was a creditor of J. W. Simonton, on a recognizance given by the latter as surety for John M’Cord, her guardian, who had not paid over to her the sum of 492 dollars 47 cents,, settled by a decree of the orphan’s court on the 2d of June 1827. The defendant was surety in a recognizance dated the 5tb of December</p> <p>1826, for John Wallace, who was administrator of J. W. Simonton, and had petitioned the orphan’s court for an order of sale of the real estate of J. W. Simonton, for payment of his debts and support of his minor children. The order was to sell on the 6th of January</p> <p>1827, the purchaser to pay one half cash, the residue in three equal yearly payments, the first payment on the 1st of April 1828. On the 30th of January 1827, Wallace returned, Sold, according to the condition of the said order, for 1200 dollars to John Wiggins; and the sale was confirmed. It afterwards appeared that he took four bonds for the purchase money. The recognizance of Wallace and Moody was conditioned, that said administrator should faithfully execute the power of sale committed to him in making sale of the real estate of said deceased, and truly account for and pay the proceeds thereof as the court shall legally direct. The present suit was brought to August term 1833 •' the narv. was filed in July 1833. On the 20th of August 1833, the defendant, Moody, petitioned the orphan’s court to vacate the letters of administration to Wallace, and grant new letters to some other person ; alleging, in his petition, that Wallace had mismanaged the estate so as to have left it unsettled ; that he never rendered any account to the orphan’s court of the proceeds of said sale; and that he had been informed and believed he had removed from the state more than three years since. A citation issued, and on the 27th of November 1833, the court dismissed John Wallace as administrator, and directed letters to issue to James Simonton. On the 4th of February 1834, they directed John Wallace to deliver over and pay to his successor James Simon-ton, all and every the goods, chattels, estates, effects and securities whatsoever in his hands of the said decedent. On the same day James Simonton filed his account, in which he charged himself with the whole proceeds of the sale of the land, viz. the four bonds taken by Wallace for the purchase money.</p> <p>The court below charged the jury that the only breach alleged, was, that J. Wallace did not pay the proceeds of the sale of the land as the orphan’s court would have directed: that no decree of the orphan’s court was alleged or proved, and therefore the plaintiff could not recover. They also charged that the dismissal of the administrator, and his paying over all the proceeds of sale agreeably to the order of the 4th of February 1833, exonerated the defendant from liability.</p>

William Stephens, the plaintiff above and defendant below, is the treasurer of the county of Philadelphia, and as such settled his account with the auditor-general of the commonwealth, for the amount of collateral inheritance tax received by him during the year 1833. The total of the account was 93,000 dollars 17 cents, received from different estates: and the amount of commissions charged and retained by the county treasurer, was 510 dollars 26 cents.

Ann Dillebaugh, the widow of Christian Dillebaugh deceased, on the 3d of May 1831, presented a petition to the court, for a citation to Christian Ober and Henry Ober, administrators of said deceased, to appear and make distribution of the balance of their administration account, 2231 dollars 94 cents, settled the 4th of May 1811. The widow claimed the interest of 740 dollars, payable to her annually, from the year 1817, up, to which time she had received it.

<p>An agreement to deliver a deed as an escrow to the person in whose favour it is made will not make the delivery conditional; but if delivered under it, it is an absolute delivery, and a consummation of the execution of the deed.</p> <p>One who is jointly bound in a recognizance with another, cannot, either in his own, or in a representative capacity, maintain an action upon the recognizance against his co-recognizor.</p>

<p>ERROR to the district court of Lancaster county.</p> <p>John Dulleban brought this action on the case against the executors of Martin Laber deceased.</p> <p>The action is for a legacy ; to which the defendants pleaded a release. The plaintiff replied, that this release was obtained by fraud, covin and misrepresentation. The rejoinder of the defendants set forth, that on the exhibition of the administration account of these defendants, as executors of Martin Laber deceased, the present plaintiff then excepted,to the account, on which occasion this release was exhibited to the orphan’s court as a full answer to, and satisfactory bar of the said exceptions : that it was held, decreed and adjudged by the said court, to be a good, fair and valid release; and that the decree, sentence and judgment still remain in full force and effect. The defendants ‘thereupon pray judgment, if plaintiff ought to be permitted or received against the record to reply, &c.</p> <p>The plaintiff by his surrejoinder, after protesting that the release, if valid, was only an acquittance under seal, for 104 pounds 13 shillings, in part of his demand, averred that the orphan’s court, having received the said exceptions, attached them to the administration account, and made a record that the said account was on the 20th December 1825, read and excepted to. That the said administration account, thus excepted to, and no other matter or thing relating thereto, remained of record and for adjudication in the orphan’s court from 20th December 1825 until the 23d December 1827, when the said orphan’s court heard the executors and their proofs, and the exceptants and their proofs, relative to the said matter in issue : to wit, the said account and exceptions thereto. That the said court held the same under advisement from the 23d March to the 24th September 1827, when they delivered their opinion and decree upon the said matter in controversy, revising, correcting and adjudicating upon said account and the exceptions thereto, and decreeing a much larger balance to be due by the said executors than the said executors had charged themselves with.</p> <p>That the administration account and exceptions only, put in issue and controversy for decision by the said orphan’s court the amount of balance due by said executors upon the said account, as by said account and exceptions and the opinion of the orphan’s court, all of which are made a part of the surrejoinder, more fully and at large appears, and not the fraud, covin and misrepresentation, by which the said John Dulleban in his said above replication alleges that the said executors obtained the said paper purporting to be a release, &c., nor any other matter relative to the said paper so pleaded as aforesaid, purporting to be a release. Without this, that the said orphan’s court legally, judicially, &c. decided the said paper to be a valid release, and that the said plaintiff is estopped thereby from being admitted or received against the said record of the orphan’s court to reply the said replication by him above replied, &c.</p> <p>To this surrejoinder, the defendant demurred generally and specially, and presented to the court for causes of demurrer,</p> <p>1. That it does not appear but that the said John Dulleban is estopped by the decree of the orphan’s court, from replying that the release was obtained by fraud.</p> <p>2. That the matters of fact in the surrejoinder, so far as they are sufficiently set forth and pleaded, are not a sufficient answer in law to the matters pleaded in the rejoinder of the said defendants : to wit, that the said sentence and decree of the orphan's court as aforesaid, being in full force and effect, not in the least reversed, appealed from and made void, were conclusive and binding upon the said parties.</p> <p>3. That the surrejoinder is a departure, in alleging that the release in the said rejoinder mentioned, if valid, is only an acquittance under seal, for 104 pounds 15 shillings, in part of the demand made in the aforesaid action, the plaintiff’s replication having alleged that the said release was obtained by fraud, covin and misrepresentation, and by no means suggested and declared that the said release was not a general acquittance and discharge of the executors.</p> <p>4. That the surrejoinder is double and uncertain, and is mixed up of matters of fact and matters of law, and wants form, &c.</p> <p>The Court (Hays, president) delivered this opinion on the causes of demurrer:</p> <p>1. The first is manifestly insufficient in alleging that it does not appear but that the said John Dulleban is estopped ; because an estoppel, as it precludes a party from alleging the truth, must be certain to every intent, and is not to be taken by argument or inference, but ought to be a precise affirmation of that which makes the estoppel. Co. Litt. 352, 305.</p> <p>2. The second cause, that is, .that the matters of fact in the surrejoinder, so far as they are well pleaded, are not a sufficient answer in law to the matters pleaded in the rejoinder, is nothing more in effect than the repetition of the general demurrer.</p> <p>A special demurrer must show wherein the objectionable pleading is insufficient, double, uncertain, &c. Steph. on PI. 160. For the statute, by requiring the demurrant to show cause, intended, as the books say, that he should lay his finger on the very point. 2 Salk. 678, pi. 5, per Holt, C. J.</p> <p>3. Had the plaintiff set forth the effect of the release in the body of his surrejoinder, his pleading would unquestionably have been obnoxious to this objection. Steph. on PI. 235, 237. But this he has not done; but on the contrary, has alleged the fact in his protestando : and no point in pleading appears to be more clearly settled, than that an erroneous protestando is not the subject of exception, even by special demurrer. 2Saund. 103, (a) n. 1; 1 Chit. PI. 590, 591.</p> <p>4. This fourth cause of special demurrer is comprised in general allegations, to which the remarks made in reference to the second cause, are perfectly applicable, the demurrants having omitted to state the particulars in which the surrejoinder is double, uncertain, wants form, &c.</p> <p>A demurrer, because incerta et caret forma, is a general demurrer. 5 Bac. Jib. 461 ; Shower 2; 2 Comb. 297. v</p> <p>Let us then consider the substantial objection to this surrejoinder, in point of law, under the general demurrer.</p> <p>The rejoinder, as we have seen, had alleged that the executors of Martin Laber (these defendants) exhibited their administration account in the orphan’s court, and exceptions thereto were filed by the present plaintiff’s attorney, that the release here pleaded was then exhibited to the said court as a full answer and a satisfactory bar to said exceptions, and that the said release was held, pronounced, decreed and adjudged to be a good, fair and valid instrument in writing or release between the said parties, to wit the said John Dulleban the exceptant and plaintiff as aforesaid, and the said executors, accountants as aforesaid and defendants in this action ; which decree, sentence and judgment still remain in full force and effect; and therefore the plaintiff ought not to be permitted to reply the replication by him replied in this case.</p> <p>To this the surrejoinder answered, that the exceptions were exhibited by Conrad Mentzer, John Dulleban and the trustees of Henry DuIIeban ; that the orphan’s court received the exceptions, attached them tq the account and made a record thereof; that the said account was, on the 20th December 1825, “read and excepted to.”</p> <p>That the said account thus excepted to, and no other matter or thing relating thereto, remained of record and for adjudication in the orphan’s court from the 20th December 1825 until the 23d December 1827, on which last day the orphan’s court heard the executors and their proofs, and the exceptants and their proofs, relative to the said matter in issue, to wit the said account and exceptions thereto.</p> <p>That the said court held this matter under advisement from the 23d of March 1827 to the 24th of September 1827, when they delivered their opinion and decree upon the said matter in controversy, revising, correcting and adjudicating upon said account and the exceptions thereto, and decreeing a much larger balance to be due by the said executors than they had charged themselves with. That the said administration account and the exceptions thereto only put in issue and controversy, for decision by the said court, the amount of balance due by the said executors upon the said account, as by the said account and exceptions and the opinion of the said orphan’s court (all of which are made a part of the surrejoinder) more fully and at large appears; and not the fraud, covin and misrepresentation, by which the plaintiff in his replication alleges that the executors obtained the said paper purporting to be a release, nor any other matter relative to the said paper, &c. Without this, that the said orphan’s court legally, judicially, &c. decided the said paper to be a valid release, and that the said John DuIIeban is estopped thereby from being admitted or received against the said record of the orphan’s court to reply the said replication by him above replied in this suit, &c.</p> <p>The special demurrer not being sustained, the facts set forth in the surrejoinder must be taken to be well pleaded and as true.</p> <p>The question then is, are they in law a sufficient, answer to the rejoinder1?</p> <p>The allegation of that plea is, that the release was decreed by the orphan’s court to be a valid release, on the hearing of the plaintiff’s exceptions to the administration account of the defendants; wherefore the defendants conclude by their rejoinder, that the plaintiff ought not to be permitted against the record to reply in this suit that the same release was fraudulent. The surrejoinder denies that the release was in issue, or that the court decided that it was a valid release, and denies the conclusion that the plaintiff is estopped by the record to reply the replication which he has replied in this suit.</p> <p>Had the surrejoinder not made the opinion of the orphan’s court, by reference, a part of itself, this denial alone would have been conclusive, because, if the release was not in issue, and if the orphan’s court did not decide that it was a valid release, the objection to the replication utterly fails.</p> <p>The opinion shows that the release was before the court; that the right of any other than the trustees of Henry Dulleban to except to the administration account was denied by the accountants; and lhat the court decided, as to Conrad Mentzer and John Dulleban (the plaintiff here), that the objection to their right of interference was a valid one, on the ground that they were parties to this release; which the court said was general and unrestrictive in its terms, and that no attempt had been made to impeach its fairness and efficacy. But the orphan’s court declared that the release could not affect the interests of Henry Dulleban and his trustees, and that the exceptions filed on their behalf were entitled to the consideration of the court.</p> <p>The exceptions were generally applicable to the items of the account to which they referred, and were not dependent on the particular claims of the individual exceptants. The court, therefore, proceeded to consider every one of the exceptions in the same way as they would have done, provided all the exceptants had been admitted to a hearing; and the account was materially corrected.</p> <p>The matter in issue was, whether or not the administration account, quoad the objectionable items, was a just and true account of the administration of these executors.</p> <p>The question which was incidentally raised on the hearing was, whether Conrad Mentzer and John Dulleban were entitled to except to the account; and the court did undoubtedly pass upon this release, so far as was necessary to enable them to found a judgment on this incidental and preliminary question, but no further.</p> <p>I apprehend that this, indeed, was the utmost limit of their authority ; for this release purports to be a release of a legacy, a species of claim to which the limited jurisdiction of the orphan’s court does not extend. By an act of assembly, a remedy is provided for the recovery of such a claim by an action at law. If the orphan’s court could not decide that John Dulleban is or is not entitled to the legacy which by the present action he demands, could they decide conclusively upon the validity of a deed or writing vitally connected with his right of action? Will the law thus allow that to be accomplished by indirection, the doing of which directly it prohibits? Certainly not. This answer is decisive of the present demurrer; for it appears to me that the question it presents is .substantially that which I have just stated.</p> <p>I am of opinion that the orphan’s court did not undertake to decide upon the character of the release in question in such a manner as would preclude the plaintiff from replying as he has done in his replication in this suit; and that they had not jurisdiction over the subject matter to that extent, had they even been disposed to carry their authority so far.</p> <p>Let judgment on the demurrer be entered for the plaintiff.</p> <p>The court then thus disposes of two motions on the subject of the pleadings.</p> <p>In this case two motions were entered upon th'e minutes of the court on the 6th of February last.</p> <p>Mr Parke moved to strike off the rejoinder entered on the 30th of October 1833, for reasons filed; and on the same day Mr Hopkins moved for leave, before judgment is entered on the demurrer, t.o withdraw the same, in order to rejoin that the release was not obtained by fraud, &c.</p> <p>These two motions were argued at the adjourned court in October, by Mr Parke and Mr Franklin.</p> <p>To comprehend the question, it is necessary to advert to the proceedings had anterior to the motions.</p> <p>The suit was a summons in case for a legacy; and on the 25th of April 1831, the plaintiff filed his narr. setting forth the bequest in the last will and testament of Martin Laber deceased, the appointment of the defendants as executors, the death of the widow, granting of letters testamentary, assets, &c.</p> <p>To this declaration, the defendants on the 15th of February 1832, pleaded a release.</p> <p>And the plaintiff replied, that the release was obtained by fraud, covin and misrepresentation.</p> <p>On the 18th of June 1833, the defendants rejoined at length, that the plaintiff was estopped to reply the release, by certain proceedings which had taken place in the orphan’s court, and which were set forth in the rejoinder.</p> <p>The plaintiff surrejoined, specially traversing the estoppel.</p> <p>On the 29th of June 1833, the defendants demurred generally and specially, in which on the 10th of July following, the plaintiff joined.</p> <p>On the 6th and 7th of January 1834, the demurrer was elaborately argued; and the court, having held the matter under consideration, delivered, on the 6th of February, their opinion thereon, and directed judgment to be entered for the plaintiff; which was accordingly done.</p> <p>Some time afterwards on the same day, Mr Hopkins requested the court to suspend this judgment; which request, without being granted or refused, was ordered to be noted on (he minutes.</p> <p>Mr Parke next moved to strike off the rejoinder entered in this case on the 30lh of October 1833; it being, as he alleged, irregular, erroneous, and after the issue formed in law upon the only pleadings then in the cause in which defendant had rejoined ah estoppel, it either having been entered in the office in the ordinary way, or before the court, without notice to the plaintiff.</p> <p>On the same day, Mr Hopkins submitted his motion, for leave, before judgment is entered on the demurrer, to withdraw' the same, in order to rejoin that the release was not obtained by fraud, &c.</p> <p>To the rejoinder of the 30th of October 1833, two objections were urged:</p> <p>1st. That the defendants could not rejoin two distinct matters, as they have attempted by two several surrejoinders to do here; having formerly rejoined an estoppel, and by this second rejoinder traversing the fraud, &c. averred in the plaintiff’s replication.</p> <p>The old common law strictness which restrained defendants from pleading more than one plea to the plaintiff’s declaration, was reformed by the statute of 4 Ame, c. 16, 3, 4, 5, which made it lawful for any defendant, with leave of the court, to plead as many several matters as he should think necessary to his defence.</p> <p>But this relaxation goes no further than the plea; it does not extend to the replication or other subsequent proceedings, with reference to which the parties are forbidden, by the rules of pleading, to join several replications to the same plea, or several rejoinders to the same replication, and so on.</p> <p>The second rejoinder in this case is, therefore, irregular.</p> <p>2d. The second objection is quite as decisive.</p> <p>A party cannot plead and demur to the same matter. He must make his election, in order that a single issue only, in respect of a single subject, should be produced. Steph. 327. The statute of Anne gives no authority for demurring and pleading to the same matter.</p> <p>Three months after the defendants had demurred to the plaintiff’s surrejoinder, they file a second rejoinder to the replication, whilst their demurrer is still pending; the effect of which was to make up an issue of fact on the same matter as to which the demurrer had raised an issue in law. This is not allowable.</p> <p>I am of opinion, therefore, that this rejoinder of the 30th of Occtober 1833, should be struck off.</p> <p>With respect to the motion to withdraw the demurrer, it was permitted to be entered, subject to every exception. Nothing done or omitted by the court, in reference to it, can be considered as lending it any sanction. The demurrer was well argued, and the court held it under advisement for a month. The opinion was read; the order to enter the judgment distinctly announced; and after this, though on the same day, the defendant’s counsel submitted the request to suspend the judgment. The judgment was not suspended, but the request was directed to be noted on the minutes.</p> <p>The next step on the part of the defendants was, on the same day, to move for leave to withdraw the demurrer. This motion is without precedent. The defendants had elected their course; they had tendered an issue in law ; they had enforced it with well prepared arguments; and the court, on full consideration, had decided that issue. And after such decision, comes the request that the court would not decide; after judgment ordered and entered, it was asked that the court would not give judgment: and then leave was moved —leave before judgment was entered on the demurrer—to withdraw the same, in order to rejoin anew. )</p> <p>There must be an end of every controversy; a period of repose to all litigation. Interest reipublicoe ut sit finis litium. In Burke v. Hoover, this court decided that there could be no amendment after judgment on demurrer. Surely the party is sufficiently indulged, if at any time before judgment, even after argument, he may amend his faulty pleadings, and place himself rectus in curia; if he lies by, and takes his chance of a decision in his favour, he ought not to expect that the court will then suffer him to unravel, not only his own work, but theirs, on finding that the judgment is against him. Is his adversary to be delayed for ever ] Is the solemn adjudication of the court to be taken for an idle ceremony ] Must the party’s own choice of the issue to be decided be treated by him as a mere experiment upon the court]</p> <p>This has not, indeed, been contended for; yet it is manifest that such must be the effect of allowing the demurrant to withdraw his demurrer, and alter his pleadings after judgment against him. This is nothing less than an amendment after judgment. If allowed to the demurrant, it could not be denied to the party joining in the demurrer; and hence it is clear that all proceedings on demurrer would result in nothing but delay and an unprofitable waste of labour and time.</p> <p>I am of opinion, then, that the judgment on the demurrer in question ought not to have been suspended; and that the defendants should not have leave to withdraw their demurrer.</p> <p>Motion of plaintiff’s counsel granted. Motion of defendants’ counsel denied.</p> <p>Assignment of errors:</p> <p>1. The.court erred in entering judgment on the demurrer in favour of the plaintiff, when it should have been entered in favour of the defendants.</p> <p>2. If the plaintiff was entitled to any judgment at all, it was only</p> <p>to judgment quod respondeat ouster and not to judgment quod recuperet. . .</p> <p>3. The court erred in striking off the rejoinder of the defendants' to the plaintiff’s replication added on the 30th of October 1833.</p> <p>4. The court erred in not allowing the defendants to withdraw1</p> <p>their demurrer for the purpose of rejoining that the release was a fair and valid release, without fraud, &c. " •</p>

This was an action of ejectment by David M’Murtrie, against David M’Murtrie, Jun. and Alexander M’Cormick.

Ejectment for a house and lot by William Wiley and others against Lewis Christ and others. The plaintiffs are the heirs at law of Jane M’Creary, under whom both parties to this suit claim title. In 1813 Jane M’Creary sold and conveyed the property in controversy to Lewis Christ, and received his bonds for the purchase money. Lewis Christ went into possession, and remained in the possession for seme time.

<p>The twenty-fourth section of the act of 1814 relating to insolvent debtors, does not make it the duty of a court, when an insolvent debtor is discharged, to decree that a majority in number and value of his creditors have consented in writing to exempt from exechtion the debtor’s property for seven years: that is a fact to be judged of by a judge of the court from which the execution may issue, upon the application of the debtor to set the same aside.</p> <p>The prothonotary of the court which grants the discharge, has no such power under the act.</p> <p>A scire facias may be issued to revive a judgment which has been removed by a writ of error sued out without bail and still pending.</p> <p>The consent by creditors to the exemption of the debtor’s property, ought to be set up as a defence on the trial of the scire facias.</p>

<p>An award of arbitrators, made under the act of 1810, continues to be a lien on the lands of the defendant during the pendency of the appeal, without a scire facias to revive the same. The limitation of the lien of five years created by the act of 1798 will commence to run at the date of the withdrawal of the appeal.</p>

<p>An ademption of a legacy by an advancement subsequently to the will, may be shown by parol, and, therefore, by the testator’s declarations: but if the transaction claimed to 'have been an advancement, was before the making of the will, it cannot operate as an ademption of the legacy.</p>

On the 19th of March 1831, George Reber, Esq., a justice of the peace for the county of Schuylkill, rendered judgment in an action of debt, wherein Michael Quinn was plaintiff, and Rudolph Miller defendant; for the sum of 62 dollars 17 cents in favour of plaintiff.

<p>It is not a good cause of principal challenge to a juror that his sister is the wife of the nephew of the party: hut if made to the favour of the juror, it would be sufficient to induce triers to exclude him from the jury.</p> <p>The existence or contents of a bond cannot be proved by parol evidence without first accounting for its non production.</p>

This was an action of trespass by Thomas Whittaker against Henry Tammany, given by the act of the 29th of March 1824, to recover treble damages for cutting timber trees from the land of another. An objection was made to the plaintiff’s action, on the ground that he was but a tenant, and not the owner of the land; and the proof was, that his father was the owner of the freehold, and the plaintiff had lived upon the land, under Jais father’s title, for fifteen years.

This was an action of debt on two single bills, not exceeding 2000 dollars, by Abraham Kerns against John Piper, William Fletcher and Jacob Fletcher. Abraham Kerns, the plaintiff, and John Piper, one of the defendants, had once been partners in trade, in the name of John Piper & Co.; and upon the dissolution of the partnership, the goods on hand were sold to John Piper and William Fletcher for 3121 dollars 42 cents: for a part of this consideration this suit was brought.

<p>TPIIS was an action of trover for twelve tons of iron ore, brought by Simeon Guilford and Franklin Wright, against Edward B. Grubb and Charles M’Curdy, in the district court for the city and county of Lancaster, of September term 1832, No. 19; in which, on the 3d of December 1833, the jury upon the issue joined, returned the following special verdict.</p> <p>And now, to wit, December 3d, 1833, came Thomas Morgan, &c., jurors, &c., who do say, that on the 31st day of December 1749, the proprietaries of Pennsylvania, by their patent, in hcec verba, granted to John Forree, in fee, four hundred and two acres and allowance of land, in Hempfield township, Lancaster county ; that the said John Forree, being so thereof seised, died, having, on the 21st day of April 1753, made his last will and testament, in hcec verba, which was, on the 30th June 1753, duly proved and approved in the register’s office, before the register for said county, and letters testamentary in due form of law issued to Henry Strickier, Christian Forree and Abraham Myer, the executors named therein, who, in pursuance of the powers given them by said will, did, on the 28th of October 1765, by indenture, in hcec verba, grant and convey to David Forree, the son and devisee of the said John Forree, in fee, three hundred and two acres, part of the land included in the patent of the 31st December 1749 : and the said David Forree, and Magdalena his wife, by their indenture, ira hcec verba, dated 2d November 1791, and recorded on the 26th October 1792, conveyed to Jacob Heistand, in fee, two hundred and fifty acres of the said tract of three hundred and two acres ; and the said Jacob Heistand, by his indenture, in hcec verba, dated 8th April 1816, conveyed to his son, Jacob Heistand, Jun., eleven acres, more or less, of the said two hundred and fifty acres ; and the said Jacob Heistand, Jun., being so thereof seised of the said eleven acres, more or less, did, on the 29th September 1830, by deed, duly executed and acknowledged, in hcec verba, and recorded on the 1st of October 1830, convey to Simeon Guilford and Franklin Wright, the privilege and right of entering upon and digging and taking away all the iron ore from the said tract of eleven acres; all which, in evidence shown to the jury, manifestly appears : and the said jurors further find, that the said Simeon Guilford and Franklin Wright, afterwards, to wit on the 1st day of September 1831, entered on the said tract of eleven acres, and there dug and raised, or caused to be dug and raised, and placed the same at the mouth of the shafts or pits whereout it was dug and raised, twelve tons of iron ore; which said twelve tons of iron ore so dug and raised by Simeon and Franklin, the defendants, Edward B. Grubb and Charles M’Curdy, on the 1st day of January 1832, took and converted to their own use, by carrying the same away from the said eleven acres of land: and the jurors further find, that Jacob Heistand, Jun., under whom the plaintiffs claim, and Jacob Heistand, Sen. and David Forree, under whom Jacob Heistand, Jun., claims, have been in.the legal and actual possession of the premises, the eleven acres, from which the said iron ore was dug and raised by the plaintiffs, and taken and carried away by the defendants, from the 28th of October 1765, till the institution of this suit.</p> <p>And the jurors further find, that the said David Forree, being so as aforesaid seised of the said three hundred and two acres of land, did, on the 19th day of September 1768, by articles of agreement, in hcec verba, made with William Bennet, agree to sell and convey to the said William Bennet, iron master, twenty acres, a part of the said tract of three hundred and two acres, where ore had been dug, in which articles of agreement it is agreed by David Forree to give William Bennet, his heirs and assigns, the privilege to dig ore on his, the said David Forree’s remaining part of thethree hundred and two acre tract, for 6 pence for every ton, if he, William Bennet, shall have occasion: and the jurprs find that the said David Forree, by his deed, dated 6th of March 1769, in hcec verba, (but never recorded) did grant and convey to the said William Bennet, in fee, twenty acres of land, part of the three hundred and two acre tract devised to him under the will of his father, in which deed the said David Forree covenanted as follows: “ and the aforesaid David Forree, for himself,' his heirs, executors and administrators, doth covenant, promise, grant and agree to and with the said William Bennet, his heirs and assigns, that he, the said William Bennet, his heirs and assigns, shall and may, from time to time and at all limes hereafter, dig, take and carry away all iron ore to be found within the bounds of the said David Forree’s tract of land, containingtwohundred and eighty-two acres—provided the said Wrilliam Bennet, his heirs and assigns, pay to the said David Forree, his heirs and assigns, the sum of 6 pence, Pennsylvania currency, per ton, for every ton taken from the premises of two hundred and eighty two acres aforesaid and the jurors further find, that the said William Bennet, being so thereof seised, judgment was, by due course of law, obtained against him by James Smith, for a debt of 2000 pounds, in the court of common pleas of Lancaster county, of November term 1770, No. 175, upon which judgment such proceedings were had, in hcec verba, that Frederick Stone, the sheriff of Lancaster county, sold, and, on the 10th of August 1771, by his deed, in hcec verba, conveyed the said twenty acres of land, late the estate of said William Bennet, with the appurtenances, to George Eichelberger, who, being so thereof seised, did, by his deed, dated 14th December 1771, in lmc verba, convey the said twenty acres of land to James Smith, in fee, with its appurtenances, who, by his deed, dated 29th April 1788, in hcec verba, conveyed the same twenty acres of land, with its appurtenances, to Thomas Neill, who, by his deed of 1st September 1794, in hcec verba, conveyed the same premises to John Wilkes Kittera, Esq., who, by his deed, dated 13th May 1797, in hcec verba, conveyed one undivided moiety of the same premises to Samuel Jago, who, by his deed and the deed of his wife, dated 6 th May 1799, in hcec verba, conveyed the said moiety of the said premises to Thomas Neill, and the said John W. Kittera and wife, by their deed, dated 6th May 1799, in hcec verba, (they joining in the deed of Samuel Jago and wife) conveyed to Thomas Neill, the other moiety of the said premises, and the said Thomas Neill being so thereof seised, by his deed, dated the 5th of May 1802, in hcec verba, conveyed the same twenty acres, with its appurtenances, to Henry B. Grubb, in fee, who, by his deed, dated 18th September 1804, in hcec verba, conveyed the same premises, with their appurtenances, to Jacob Striclder, in fee, excepting and reserving unto the said Henry B. Grubb, his heirs and assigns, all the ore on the premises, as by the deeds in evidence manifestly appears.</p> <p>And the jurors further find, that the said Henry B. Grubb is dead, and the defendant, Edward B. Grubb, is one of his sons and heirs at law, and that Charles M’Curdy, the other defendant, is his agent, and acted under his authority in taking and removing and converting the twelve tons of ore, as before found.</p> <p>And the jurors do further say, that they are ignorant, in point of law, upon which side they ought to find, upon the foregoing facts so found, the issue; or whether, under the facts in the present form of action, they should find in favour of the plaintiffs: that if upon the whole matters the court shall be of opinion that the issue is proved for the plaintiffs, and they can recover in the present form of action, they find accordingly for the plaintiffs, and assess their damages at 12 dollars and the costs of suit; but if the court are of a contrary opinion, then vice versa, or for the defendants.</p> <p>On the 20th day of October 1834, the court, after argument, ordered the verdict, finding for the plaintiffs and assessing their damages at 12 dollars and the costs of suit, to be recorded, and rendered therefrom judgment for the plaintiffs; and at the same time delivered the following opinion:</p> <p>Hays, president.</p> <p>The fact (as stated in the special verdict) on which the present action is founded, is the taking and conversion by the defendants of twelve tons of iron ore, by carrying the same away from the land therein described, where the said ore had been dug and raised by the plaintiffs.</p> <p>After setting forth the tille of each party to enter upon the premises, dig, and carry away the ore to be found there, the verdict concludes—“that if upon the whole matters the court shall be of opinion that the issue is proved for the plaintiffs, and they can recover in the present form of action, they [the jury] find accordingly for the plaintiffs, and assess their damages at 12 dollars and the costs of the suit; but if the court are of a contrary opinion, then vice versa, or for the defendants.”</p> <p>The special verdict, therefore, presents two questions :</p> <p>1. Whether the action of trover will lie in this easel</p> <p>2. 'Whether it can be maintained by the plaintiffs 1</p> <p>1. It is well settled, that title to land cannot be tried in the action of trover. This is a transitory action, and title to land, upon obvious grounds of policy, can only be decided in those actions which are local, or, in other words, confined to the county in which the land lies. But the matter in controversy is not the title to land; it is the right to the twelve tons of iron ore, dug and raised upon these eleven acres of land, part of the two hundred and eighty-two acres remaining to David Forreé after he conveyed the twenty acres to William Bennet. It is not disputed that the title to these premises is in Jacob Heistand, Junior; and the verdict finds that he and Jacob Heistand, Senior, and David Forree under whom he claims, have been in the legal and actual possession thereof, from the 28th of October 1765, until the institution of the present suit. 3 Serg. fy Rawle 509; 10 Serg. ty Rawle 119.</p> <p>This ore, thus dug and raised, was a chattel, and, as such, a legitimate subject of trover.</p> <p>Actions of trover have often been brought and sustained; not only for taking and converting ores and other minerals to the use of the defendant, after they were extracted from the soil by the plaintiff; but for digging, taking and carrying them away, all at t he same time, by the defendant, and converting them to his use. 3 Serg. fy Rawle 509 ; Player v. Roberts, 1 Jones 243, cited by the chief justice, and commented upon in 3 Serg. fy Rawle.</p> <p>There is little or no difficulty, then, in the first question.</p> <p>2. But the other question involves many considerations of great difficulty, which were argued by the counsel with more than their usual ability and learning. It is a satisfaction and relief to me, to know that any opinion of mine will only open the door to the supreme court; though, I will add, I have examined the subject with as much care as if I felt all the responsibility of an ultimate decision.</p> <p>In trover, the plaintiff must have had, at the time of the cause of action accrued, either the actual possession, or the right to the immediate possession of the goods or chattels which are the subject of the action. He must also have a property in the chattel, either general or special; and the rule is, that the constructive possession of goods follows the property. 11 Johns. 259; 3 Serg. <£• Rawle 513.</p> <p>If, then, the plaintiffs had the right or title to this ore—if it was theirproperty, they shall be deemed to have had possession, when it was taken and carried away by the defendants, and converted to their usé.</p> <p>If, on the other hand, the right to this ore, or the property in it, belonged to the defendants, the present action cannot be maintained.</p> <p>It results, therefore, in this question : Was this ore the property of Simeon Guilford and Franklin Wright, or was it the property of the defendants 1</p> <p>In support of their claim, the plaintiffs have exhibited articles of agreement, dated the 27th of September 1830, between Jacob Heistand, Junior, and themselves, in which, for the consideration therein mentioned, the said Jacob Heistand granted and assigned to them “ the sole and exclusive right and privilege to dig, take and carry away all the iron ore of every kind, wherever to be found, upon a certain tract of land belonging to the said Jacob Heistand, containing between ten and eleven acres, situate and lying in West Hemp-field township, Lancaster county, adjoining lands of John Greider, Michael Bachman and others, with free ingress and egress to exercise and enjoy the said right and privilege; in consideration for which, they, the said S. Guilford and F. Wright, by the same articles bound themselves to pay, on the 1st day of April 1833, and annually thereafter, the sum of three hundred and fifty dollars; and also to pay one hundred dollars for each and every acre of land which should be destroyed for the use and enjoyment of the above conveyed privilege.”</p> <p>, Jacob Heistand, Junior, purchased the premises from Jacob Heistand and wife, who conveyed the same to him by their deed of the 8 th of April 1816.</p> <p>These eleven acres, (or ten acres, forty-three perches) were part of a larger tract of two hundred and fifty acres, which were conveyed and assured to Jacob Heistand, Senior, by David Forree and wife, by their deed of the 2d November 1791, being part of a still larger tract of two hundred and eighty-two acres, then held by the said David Forree under and by virtue of a deyise in the last will and testament of his father John Forree, to whom the late proprietaries of Pennsylvania had granted a tract of four hundred and two acres and allowance, &c. (of which this was a part), by their patent dated the 21st December 1749.</p> <p>There is no dispute with respect to this deduction of title ; but the defendants, in support of their defence, have set up what they contend is a higher and better title to the ore in these eleven acres than that exhibited by the plaintiffs.</p> <p>On the 6th of May 1769, David Forree and wife, by their deed of that date, conveyed to William Bennet, an iron master, twenty acres in fee, being a part of the tract held by the said David Forree under and by virtue of the devise from his father John Forree, deceased, as before mentioned; which tract contained three hundred and two acres. This deed, inter alia, recites that in consideration of 107 pounds, the said David Forree and his wife granted, bargained and sold, aliened, enfeoffed, released and confirmed unto William Bennet, his heirs and assigns, all the following described tract of land, part of the above described' tract of three hundred and two acres, beginning, &c. (setting forth the metes and bounds), and containing twenty acres, and the allowance proportional to six acres percent, &c., with all and singular, &c., to have and to hold the aforesaid tract of twenty acres of land and premises granted, mentioned or intended so to be, with the appurtenances, unto the aforesaid William Bennet, his heirs and assigns, &c. And then follows a covenant in these words: “and the aforesaid David Forree, for himself, his heirs, executors and administrators, doth covenant, promise, grant and agree to and with the aforesaid William Bennet, his heirs and assigns, that he, the said William Bennet, his heirs and assigns, shall and may, from time to time and at all times hereafter, dig, take and carry away all iron ore to be found within the bounds of the said David Forree’s tract of land, containing two hundred and eighty-two acres: provided he, the said William Bennet, his heirs or assigns, pay unto the said David Forree, his heirs or assigns, the sum of 6 pence, Pennsylvania currency, per ton, for every ton taken from the premises of two hundred and eighty-two acres, aforesaid.” Against William Bennet (the grantee in this deed), James Smith, Esq., obtained á judgment to the November term 1770, for 2000 pounds. A fieri facias was issued to February term 1771, to which the sheriff returned “lands and goods levied.” On this a venditioni exponas issued to May term 1771, to which the return was “no buyers and then-an alias venditioni exponas to August term 1771, No .26, with a general return of “land and goods sold, insufficient,” indorsed, together with a more particular return, in the following words:</p> <p>“To the justices within named—</p> <p>“By virtue of the within writ to me directed, I did, on the 28th day of June A.D. 1771, by way of public vendue, expose to sale the lands and tenements of the within defendant, by me taken in execution as within mentioned, and at the sale did sell a certain .island situate in the river Susquehanna, nearly opposite the mouth of Codorus creek with its appurtenances, unto David Grier, for the sum of 160 pounds, lawful money of Pennsylvania, and did sell the ore bank by me taken in execution, containing about twenty acres, with its appurtenances, unto George Eichelberger for the sum of 60 pounds lawful money of Pennsylvania, those being the highest sums bid, and they the said David Grier and George Eichelberger, being the best and highest bidders at the said sales for the same premises.</p> <p>“ Frederick Stone, Sheriff.”</p> <p>The fieri facias, by virtue of which the sheriff levied on these lands, has not been found; but in the recital of his deed to George Eichelberger for the ore bank taken in execution, and sold as stated in the above return, it is said, that to the said writ of fieri facias to him directed, he did return to the justices of the county court of common pleas, that, by virtue of the same writ, he had seized and taken into his hands in custody, as the estate of William Bennet, one island with the improvements, in the river Susquehanna, nearly opposite the mouth of the Codorus, and one ore bank, containing about twenty acres near Chiques’s creek, in the township of Hemp-field, in his bailiwick, the property of the said defendant, all which remained in his hands unsold for'want of buyers, so that he could not have the moneys in the same writ, mentioned at the day and place therein contained, and that the residue of the execution of the said writ, appeared, by a certain schedule or inquisition thereunto annexed, by which said schedule or inquisition, taken before him, the said sheriff, on the oaths and affirmations respectively of twelve free, honest and lawful men, &c., it was found that the rents, issues and profits of the said island, wiLh the improvements, and the said ore bank containing about twenty acres with their appurtenances, were not of a clear yearly value, &c.; and after proceeding with the recital of the venditioni exponas, advertisement, and sale to George Eichelberger, on the 28th of June 1771, the sheriff’s deed contains the following grant: Now know ye, that I, the said sheriff, for and in consideration of the said sum of 60 pounds to me in hand paid by the said George Eichelberger, at or before ensealing and delivery thereof, the receipt and payment whereof is hereby acknowledged, have granted, bargained and sold, and delivered, and by force and virtue of the said recited writs, and by the laws and constitutions of this province of Pennsylvania do grant, bargain, sell and deliver unto the said George Eichelberger, his heirs and assigns, all that the said ore bank, containing twenty acres and the usual allowance, be the same more or less (it being the same ore bank which William Bennet purchased from a certain David Forree), together with all and singular the houses and outhouses, edifices and buildings, thereon erected and being; and also, all and singular the Zights, easements and appurtenances to the same ore bank belonging or in anywise appertaining, and the reversions and remainders thereof; and also, all the estate, right, title, interest, benefit, claim and demand whatsoever, of him, the said William Bennet, both at law and in equity, or otherwise, howsoever, of, in, to and out of the same premises and every part thereof, to have and to hold the said ore bank with its appurtenances, hereditaments and premises, hereby granted and released, or mentioned so to be, with their riglils, members and appurtenances, unto the said George Eichelberger, his heirs and assigns, &c.</p> <p>This deed was executed the 10th day of August 1771, and acknowledged the same day.</p> <p>On the 14th day of December in the same year, George Eichelberger conveyed, by his deed of that date, these twenty acres, called the ore bank, to James Smith. This deed contains a very ample recital, setting forth the proprietaries’ patent to John Forree; his devise to his son David Forree; the release of his executors to David Forree, pursuant to his will; David Forree’s deed to William Ben-net ; the recovery by James Smith of his judgment against William Bennet; with the executions, levy, condemnation and sale of the ore bank by the sheriff to George Eichelberger.</p> <p>James Smith and wife, by their deed of the 6th of May 1788, conveyed the same twenty acres of land and premises to Thomas Neill, who conveyed to J. W. Kittera in 1794, and he, one moiety thereof to Samuel Jago in 1795 ; and J. W. Kittera and wife and Samuel Jago and wife reconveyed, by their deed of the 6th of May 1799, the whole of the premises to Thomas Neill.</p> <p>On the 5th of May 1802, Thomas Neill, by his deed of that date, conveys and assures the said tract of land and premises, situate in Hempfield township, Lancaster county aforesaid, containing twenty acres, and the usual allowance of six per cent, &c., together with all and singular the houses, outhouses, buildings, improvements, hereditaments, rights, members and appurtenances to the said island in the river Susquehanna, (also conveyed in and by this deed) and to the said tract of twenty acres of land situate in Hempfield township, county of Lancaster aforesaid, respectively belonging or in any wise appertaining, &c., &c., to have and to hold the said island in the river Susquehanna, and the said tract of twenty acres of land and premises in Hempfield township, county of Lancaster aforesaid, called the ore bank, hereby granted, with the appurtenances, unto Henry Bates Grubb, and to his heirs and assigns.</p> <p>The defendants (Edward B. Grubb being a son and heir of Henry B. Grubb) claim, on behalf of the heirs and legal representatives of Henry B. Grubb deceased, title to and property in the ore in question, as a part of the iron ore found on the two hundred and eighty-two acres remaining in David Forree, after the sale and grant of the twenty acres to William Bennet, by his deed of the 6lh of March 1769.</p> <p>It is contended for the defendants that Henry B. Grubb, deducing his title from William Bennet, had a right to all the iron ore to be found on those two hundred and eighty-two acres, of which the eleven acres mentioned and described in the articles between Jacob Heist- and, Jun. and Guilford and Wright, were apart; thatForree’s deed to William Bennet contained a grant to the latter, his heirs and assigns, of the privilege of digging, taking and carrying away all such ore, from time to time and at all times, with the single condition of paying 6 pence a ton to the grantor, his heirs or assigns; and that, by virtue of the judgment, executions, sales, sheriff’s deed, deed of Thomas Neill to Henry B. Grubb, and the mesne conveyances, this privilege became vested in Henry B. Grubb, his heirs and assigns; that David Forree having conveyed away the right to all the iron ore in the said two hundred and eighty-two acres, Jacob Heistand, Jun., who, forty-seven years after, purchased eleven acres, part of those two hundred and eight.y-two acres, had no authority to grant the same privilege to Guilford and Wright the plaintiffs, with respect to the ore in these eleven acres; and that the sale to them passed nothing.</p> <p>That Henry B. Grubb’s right, being a right to all the iron ore to be found on the premises, is necessarily exclusive, and that, consequently, as the plaintiffs, in digging and raising the twelve tons of ore mentioned in the verdict, acted in violation of such right, the defendants were justified in taking it away as the property of Henry B. Grubb’s heirs.</p> <p>To the array of title on the part of the defendants, many objections were urged, which are now to be considered.</p> <p>1st. It was contended that whatever right or privilege William Bennet had under the deed of the 6th of March 1769, was not transmitted to Henry B. Grubb.</p> <p>2d. That the clause containing the grant or privilege relied on, was, at best, in the nature of a secret conveyance, and that the plaintiffs, being bom fide purchasers without notice, are not affected by it.</p> <p>1st. It was alleged, under the first head, that the right granted to William Bennet to dig, take and carry away all the ore on the two hundred and eighty-two acres of David Forree, was without consideration, and was therefore a mere license revocable at the will of the grantor before any thing was done or expended in prosecution of the privilege; that William Bennet, or any other person for him, or claiming under him, never incurred any expenditure, or did any thing towards the finding and raising of ore on those two hundred and eighty-two acres or any part thereof; that being a personal license merely, it could not pass to his assigns, or be transmitted to his heirs; that it was virtually revoked, and, if not, ceased at his death.</p> <p>That more than sixty years having elapsed since the deed of 1769, and previous to the purchase of Guilford and Wright, without any exercise of the privilege, it must be presumed that it was abandoned or released ; which presumption is sanctioned and confirmed by the acts of David Forree, in selling and conveying the greatest part of the two hundred and eighty-two acres without noticing in his deed the existence of the privilege.</p> <p>That James Smith and the subsequent purchasers of the ore bank, as it was called, containing twenty acres, conveyed by David Forree in the deed of 1769, could only claim what was levied on and sold by the sheriff, as the property of William Bennet, to George Eichelberger; that this right-or privilege of William Bennet to dig and take the ore in the two hundred and eighty-two acres was neither levied on nor sold; and therefore did not pass by the sheriff’s deed of the 10th of August 1771 ; and that this breach in the defendants’ claim of title, is fatal to their defence.</p> <p>A license is an authority to do a particular act or series of acts upon another’s land, without possessing any interest therein. It is founded in personal confidence and favour, and is not assignable. It may be by parol, or by deed in writing, and whilst executory it is always revocable at the 'pleasure of him who gave it. Where A told B that he might pass and repass with his teams over the lands of A, who afterwards shut up the fence so that B could not pass, it was held to be a mere gratuitous license or promise, on which no action would lie. 3 Kent’s Comm. 452; 10 Johns. ■246.</p> <p>Modern cases, says chancellor Kent, distinguish between an easement and a license. A claim for an easement must be founded upon grant by deed or writing, or upon prescription, which supposes one ; for it is a permanent interest in another’s land, with a right at all times to enter and enjoy it. A better reason for the distinction, I apprehend, is, that an easement must be upon some consideration, but a license may be without any. 3 Kent’s Comm. 452.</p> <p>If the right or privilege granted to William Bennet, were without consideration, it would unquestionably have fallen under the denomination of a license, and been subject to the rales applicable thereto. But there are two answers to that assertion: 1. The compensation of the 6 pence a ton for every ton raised and taken away from the two hundred and eighty-two acres is a consideration, though not (formally and technically) so expressed. 2. The general consideration of 107 pounds applies to the grant of this right as well as to the twenty acres of land conveyed. All the benefits and advantages of a deed, as well those contained in whatever covenants may be inserted, as in the principal grant, shall be deemed to be in consideration of the sum expressed to be paid and technically called the consideration of the deed. Were this point involved in doubt, the rule that the deed shall be construed most strictly against the grantor, would avail in favour of the grantee.</p> <p>I am of opinion, then, that this right was something more than a license, the essential characteristic of which I take to be, that it is an authority given without consideration, to do any lawful act.</p> <p>It was contended for the defendants, that their right was a common ; but such a designation is, I conceive, irreconcilable with the exclusiveness of their claim. It belongs, however, to the same description of rights or incorporeal hereditaments, which are divided into two classes: profits and easements. Angelí on Adv. Enjoym. 19.</p> <p>Profits are rights to the produce of the soil, either above or below the surface, as herbage, wood, coals, ore, or other minerals. Easements are defined to be a service or convenience, which one neighbour hath with another by charter or prescription, without profit; as a way over his land, a sink or passage of water through it, and such like. The right of conducting water through one estate, for the use and convenience of an adjoining estate, is an incorporeal hereditament of the class of easements. The right of taking water out of another’s well or pond, is a right of that class denominated profits. To this same class, belongs the right to dig and take the iron ore in David Forree’s tract of two hundred and eighty-two acres.</p> <p>The question next occurs, whether nonuser for sixty years, in connexion with the other facts, establishes a presumption of an abandonment or release of the right or privilege in controversy. There is a distinction between privileges founded on grant and those which are acquired by use. A right'acquired by use, may be lost by nonuser ; and an absolute discontinuance of the use for twenty years, affords a presumption of the extinguishment of the right, in favour of some adverse right. But the mere nonuser of an easement or a \ profit, which is a right founded in grant, even for twenty years, will j! not necessarily raise a presumption of its extinguishment, unless I there has been, in the meantime, some act done by the owner of / the land charged therewith, inconsistent with or adverse to its exist- I ence, or some default or acquiescence in the claimant of the right; j in which case a release or extinguishment will be presumed. This ! distinction is illustrated by the chief justice, in the case of Nitzel v.‘ Pascal, 3 Rawle 76. 3 Kent’s Comm. 448 ; Ibid. 453, note.1</p> <p>In Butz v. Ihrie, the grantor had reserved a right to himself, his heirs and assigns, to raise, swell and dam the water of a stream, from a dam to be built on his own land. Thirty-two years elapsed from the time the right was reserved, to the time of building the dam ; and the question was, whether the reservation was barred, or forfeited, or lost by the lapse of time. The case was heard on an appeal from the circuit court held by the chief justice. And Judge Tod, delivering the judgment of the supreme court, says: “ we are all of opinion that the lapse of time has not been such as to create any bar or forfeiture ; and that, under the circumstances of this case, the privilege reserved in the deed of 1793, was in full force in 1825, unaffected by any presumption. The omission to erect the dam can scarcely, in this case, be called a nonuser. Cerlainly it cannot be called laches. It would have been otherwise, had the deed shown that an immediate exercise of the privilege reserved, was contemplated by the parties. Here the right of building the dam appears to be expressly reserved, even to the heirs and assigns of the grantors in the deed. “ We concur in' the opinion of the chief justice, expressed to the jury, that the law of limitations may be applicable to a case of this kind ; but that the time cannot begin to run against such a privilege by reservation, until some default, negligence, or acquiescence is shown, or may be fairly presumed in the owner.” 1 Rawle 218.</p> <p>Several points in this decision are observable. 1. The fact that the privilege was by reservation, appears to have been regarded as in some degree relieving it from the presumption which might otherwise have obtained. 2. Had the deed shown, that an immediate exercise of the right was contemplated, the time establishing, by its lapse, a presumption of extinguishment, would have begun from the date of the deed. 3. Notwithstanding this was a privilege reserved, and there was nothing in the deed to show it was the sense of the parties that it should be immediately exercised; yet, if there had been any default, negligence or acquiescence on the part of the owner, the time would have begun from such default, negligence or acquiescence; and a sufficient, length of time, that is to say, twenty years nonuser, would have established a presumption of abandonment, or a release. 4. That this negligence, &c. might be shown, i. e. proved by direct, evidence of the fact, or presumed, i. e. inferred from the proof of circumstances tending to that conclusion.</p> <p>In Nitzel v. Pascal, 3 Rawle 76, the supreme court, in the opinion delivered by the chief justice, says, “it is certainly true, that a right of enjoyment may be lost in the same way it has been gained, and when acquired by an adverse possession for twenty years, it may be lost by nonuser for the same period. Where, however, it has been acquired by grant, it will not be lost by nonuser, in analogy to the statute of limitations, unless there were a denial of the title, or other act on the adverse part, to quicken the owner in the assertion of his right.” The direct inference from the position here stated, is, that a right acquired by grant, might be lost by twenty years nonuser, if there were a denial of the title, or other act on the adverse part, to quicken the owner in his assertion of his right.</p> <p>Applying the principles recognized in these cases to the facts of the special verdict, we will endeavour to ascertain whether the doctrine of nonuser affects the claim set up by tbe defendants.</p> <p>Nothing has ever been done by the defendants—by Henry B. Grubb or those under whom they claim, in or towards the exercise of the privilege, or assertion of the right granted to William Bennet, to dig and take away all the iron ore in the two hundred and eight-two acres of David Forree’s land, until the removal of tbe twelve tons of ore, for which this suit was brought, i. e. for a period of more than sixty years.</p> <p>In 1791, more than forty years before that transaction, David Forree sold and conveyed two hundred and fifty acres of this land, without reservation or exception, to Jacob Heistand, in fee simple. The deed was recorded in 1792.</p> <p>Although by this alienation David Forree parted with much the greater portion of the land in which the right to dig and take the iron ore had been granted to William Bennet and his assigns, and conveyed it to Jacob Heistand, without excepting such right or noticing it in any form; but, on the contrary, e_xpressly including all the, rights, liberties, privileges and advantages, and the issues and profits thereof: yet there was no complaint or assertion of the right, on the part of William Bennet, or any person or persons claiming to be his assigns.</p> <p>The deed was recorded nearly forty years before the ore in question was taken by these defendants. William Bennet and his assigns, claiming these profits out of the land, must be deemed cognizant of the fact of this sale, and of the deed after it was thus placed on record; and yet they remained quiescent.</p> <p>Twenty-five years after this purchase, Jacob Heistand sold the eleven acres in which the plaintiffs dug and raised the twelve tons of ore which are the subject of the present action, to Jacob Heistand, Jun. The deed was dated in April 1816, but was not recorded until the 26th of October 1832. The grantor and grantee were severally in the actual possession of these premises, yet no claim or assertion of right was ever presented to or urged against them.</p> <p>I cannot say the deed from David Forree to Benriet shows that an immediate exercise of the right was in their contemplation. I think it does not. But, from the facts staled, it is fairly presumable that from the recording of Forree’s deed to Heistand, there was negligence, nay, acquiescence, on the part of Bennet and his assigns ; for the fact of Forree’s sale of two hundred and fifty acres of this land, in which the sole profits of digging and taking away all ihe iron ore had been granted to Bennet, and of his conveying them to Heistand absolutely, with all their rights, privileges and profits, was as complete a denial of Bennet’s title as coul'd be devised, and as well calculated to quicken the owner in the assertion of his claim.</p> <p>According to the principles recognized in the decisions to which I have adverted, I am of opinion, then, that there were thirty-nine years, i. e. from the time of the recording of the deed of David Forree and wife to Jacob Heistand, to the taking and carrying away of the twelve tons of iron ore, during which a nonuser has been established, sufficient, in point of evidence, to raise the presumption of ,a release of the right of William Bennet and his assigns. Another circumstance fortifying this presumption, is, that the sheriff who levied on the real and personal estate of William Bennet, upwards of sixty years ago, and sold the same without satisfying his creditors owing to the insufficiency of the defendant’s property, did not men-' tion this right in his levy or in his sale. James Smith was the judgment and execution creditor. It was his province, as well as interest, to show all the defendant’s property to the sheriff. He became the purchaser of the twenty acres called the Ore Bank, from the sheriff’s vendor; yet the sheriff, in his levy and sale, did not specify this right to dig, take and carry away all the iron ore to be found on the remaining two hundred and eighty-two acres.</p> <p>But that omission has a more direct relation to another point: namely, the allegation that the sheriff did not sell this right; and the sheriff’s vendor not having purchased it, could not pass it to James Smith, &c. That it is not specifically mentioned or described in the sheriff’s levy, is undeniable: but it is contended by the defendants, that the levy and inquisition did nevertheless include it, under the general term of “ appurtenances ; ” that the sheriff’s deed conveyed it by the clause in the grant, of all and singular the lights, easements and appurtenances to the same ore bank belonging or in any wise appertaining, and by the habendum, to have and to hold the said ore bank, with its appurtenances, hereditaments, and premises hereby granted and released, or mentioned so to be, with their rights, members and appurtenances, unto the said George Eichelberger, &c.; and that this construction is strengthened by the recital and grant in the deed from Eichelberger to Smith.</p> <p>The only evidence extant, of the levy, is the recital in the sheriff’s deed, by which it appears that the sheriff seized and took in execution, inter alia, one ore bank, containing about twenty acres, near Chiques’s creek, in the township of Hempfield, in his bailiwick, the property of the said defendant. Here there is neither mention of, nor reference to, appurtenances. The levy was simply on the “ ore bank containing twenty acres.”</p> <p>The inquisition, indeed, found that the rents, issues and profits of the said island, with the improvements, and the said ore bank containing about twenty acres, with their appurtenances, were not of a clear yearly value, &c.; and the grant was, in its concluding general. clause, of all and singular the lights, easements and appurtenances to the same ore bank belonging or in any wise appertaining; and the habendum was, to have and to hold the said ore bank, with its appurtenances, hereditaments and premises, with their rights, members and appurtenances, &c.</p> <p>Now it was contended on thei other side, and with great reason, as well as upon sound authority, that in case of variance between the levy and the subsequent proceedings, the levy must govern ; for all the"power of the sheriff to dispose of real estate is founded upon his levy. He can neither inquire by an inquest, nor extend or sell any thing else. If appurtenances could, therefore, by a proper interpretation, include the right in question, the levy not having embraced them, they could not be the subject of the inquisition, nor of the sale or assurance to the purchaser. All, in these proceedings, beyond the levy, was a nullity. The argument on this point, I think, is unanswerable, so far, at least, as regards those appurtenances which do not pass without being mentioned.</p> <p>But it was moreover urged, that if the levy had been expressly on the ore bank and its appurtenances, and the sale by the sheriff and his deed had conformed to it, yet that the term appurtenances would not have carried this right to dig and take the ore in the two hundred and eighty-two acres, residue of the tract of three hundred and two acres. For, 1. It could not be legally appurtenant to the twenty acres sold and granted, because land, it was said, cannot be appurtenant to a messuage, or one messuage to another, or land to other land; that appurtenances signify something incident to another thing, as principal, as hamlets to a chief manor, common of pasture to a messuage, orchards and gardens to a house, &c. And the thing appurtenant must agree with the more worthy or principal thing in nature and quality; as a common of estovers, &c. toa house; a forest to a manor or castle.</p> <p>2. Again, the grant in Forree’s deed to Bennet, of the privilege to dig and take the iron ore in the two hundred and eighty-two acres, was by a collateral covenant, not relating to nor concerning the conveyance of the twenty acres, but was of a thing wholly distinct from, and independent of the main grant, or conveyance of the deed. It was not expressed as being intended to be appurtenant to the twenty acres conveyed by the said deed; nor can it by any reasonable construction be inferred, as the intention of the parties, that it should be so held or considered.</p> <p>3. It is not pretended that William Bennet used or enjoyed this right as appurtenant to the twenty acres called the ore bank; and in his deed from D. Forree, the twenty acres were conveyed to him with the appurtenances, by all the usual terms, and in the parts of the deed, commonly and technically assigned to the complete assurance of land intended to be conveyed, before the right in question was mentioned in a distinct covenant.</p> <p>4. Lastly, in a sheriff’s deed the grant must be specific and clear; nothing will, for instance, pass by such deed under a general clause of all other the lands, &c. of the defendants. 13 Johns. 537.</p> <p>Upon a consideration of this argument, I am of opinion that the right or privilege of digging and taking the iron ore in the two hundred and eighty-two acres, was not granted in that deed as appurtenant to the twenty acres ; that it was not used as appurtenant to the twenty acres by William Bennet—for it was not used or exercised at all; that such right, though it might be appurtenant to a furnace, being agreeable to its nature and quality, as affording a proper and the principal material for the support of its operations, could not be considered as an appurtenance to an ore bank, any more than the right to cut timber in one forest can be appurtenant to a different forest; or the right to till one field can be appurtenant to another; a meadow to a pasture; or a pasture to a wood.</p> <p>The right or privilege, then, not being in its nature legally appurtenant to the twenty acres sold and conveyed (o Bennet, and not having been granted to him as appurtenant thereto, nor enjoyed or exercised by him as such, it was not, and could not, be, at the time of the sheriff’s levy or sale, one of the appurtenances of those twenty acres of land called the ore bank. Consequently, it did not pass by the grant, in that deed of the twenty acres, with the appurtenances, and could not have passed without a specific description, or at least designation of the same.</p> <p>It is indeed true, that by the grant of a messuage cum terns p'ertinentiis, land occupied continually with the house passes, though land is not properly appurtenant to a house ; yet it has been ruled, that, by t he grant of a house or land, cum pertinentiis, another house or land does not pass, unless it be found to be parcel. 4 Com. Dig. 314 ; Grant E. 9.; Plowd. C. 170; 1 Lev. 131; Bidle v. Bond, 12 Co. 5.</p> <p>In the case under consideration, the right was not exercised by William Bennet, or enjoyed with the twenty acres ; it could not be parcel thereof, for it was of a different, nature, being an incorporeal hereditament, and a mere profit in other land.</p> <p>So, not being appurtenant to the twenty acres, it could not pass as an incident to them, as it was once said a thing appendant or appurtenant might pass without saying cum pertinentiis. Co. Litt. 307, a., Cora.; Cro. El. 18.</p> <p>It is hardly necessary to add, that if the right in question did not pass, by the sheriff’s deed, to George Eicbelberger, no description, or recital, or grant, in his deed to James Smith, however comprehensive and specific, would supply the deficiency. In perusing this deed, it is not easy to resist, the conviction of an endeavour, in its preparation, to effect such a purpose. In the recital, the grant, in the deed to Bennet, of the twenty acres is so described as if the right to dig and take the iron ore, had been intended by that conveyance to be made appurtenant to the ore bank or twenty acres. Thus, after giving the metes and bounds, the recital pursues the description as follows: containing twenty acres, &c. together also with the free liberty of the said William Bennet, his heirs and assigns, to dig, take and carry away, &c. Whereas this liberty or right was the subject matter of a subsequent, and distinct covenant in Bennet’s deed, following the grant and habendum et tenendum, in which the twenty-acres and the appurtenances were completely conveyed and assured (as it has been already mentioned) by all the apt and usual phrases. There is also in Smith’s deed, in the recital therein of the sheriff’s ■sale, a statement which is not supported by the facts recited in the sheriff’s deed : namely, that, the sheriff did expose to sale the ore bank, containing twenty acres of land with the appurtenances and privileges, and the same accordingly sold and struck off to George Eichelberger. Now it has been shown that the sheriff did not levy on the twenty acres and the appurtenances, and there is nothing in the sheriff’s deed to show that he. exposed to sale, or struck off any thing by the name of privileges of the ore bank.</p> <p>The recital in Smith’s deed goes on to say, that the sheriff did sell and convey to George Eichelberger, the aforesaid ore bank containing twenty acres of land, and every part thereof, with the appurtenances, to George Eichelberger, his heirs and assigns, for ever, for the same estate as he the said William Bennet had of, in, or to the said ore bank, containing twenty acres, and every part thereof, with the appurtenances, at and immediately before the said judgment was had and recovered against him, as in and by the said deed poll, reference thereto being had, may more fully and at large appear. But it. will be seen, by the sheriff’s deed thus referred to, that there is nothing in it of this peculiar designation of the estate conveyed, as being the same estate as he the said William Bennet, &c.</p> <p>The grant in Smith’s deed from Eichelberger, contains this somewhat singular reference: grant, bargain and sell, release and confirm unto the said James Smith, his heirs and assigns, all that above (i. e. in the recital) described tract of twenty acres of land called the ore bank and premises, with the appurtenances, as the same is above (i. e. in the recital) set forth and described, bounded and limited as aforesaid, together with all and singular the improvements, ways, woods, waters, water-courses, lights and privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, &c. to have and to hold the aforesaid twenty acres of land and premises, hereby granted, mentioned, or intended so to be, with the appurtenances and privileges, unto the aforesaid James Smith, &c. &c.</p> <p>But notwithstanding this apparent effort to supply what was evidently deemed an insufficient conveyance by the sheriff, it is too plain to admit of a doubt, that Eichelberger could only sell what the sheriff had conveyed to him—certainly not an iota morel</p> <p>2d. It was lastly objected to the title set up by the defendants, that the grant of the privilege in question was, at best, in the nature of a secret conveyance, and cannot affect the plaintiffs, who are bona fide purchasers without notice.</p> <p>To this it was answered, that they had equitable if not actual notice, and therefore cannot shelter themselves under the pretext of a bona fide purchase. It is supposed that such notice was furnished, first, by the sale and conveyance of the twenty acres to William Bennet; and second, by the recording of the deeds to subsequent purchasers, of those twenty acres and the appurtenances.</p> <p>1. There is no proof of actual notice—and even if the usual notoriety of a purchase may be considered as constructive notice to a subsequent purchaser, in consequence of the change of possession, and the acts of ownership which often accompany and succeed the transaction, (which I, by no means, admit) yet here, it is to be observed, it would not operate with respect to this right to dig and take the iron ore in the two hundred and eighty two acres, since no change of possession did take place, or was contemplated, even by the enjoyment of the right; and the right, in point of fact, was not exercised at all.</p> <p>2. With respect to the recording of the deeds : the deed from David Forree and wife to William Bennet, was not recorded ; so that, of the very .origin of the title, which is set up adversely to the plaintiff’s and the Heistands, under whom they claim, they had not even the constructive notice which the recorder’s office might have afforded.</p> <p>So of the proceedings on Smith’s judgment'—the levy and sale, and the sheriff’s deed; we have seen there was, in these, no specific mention of this right, and nothing from which notice of its existence' could be inferred.</p> <p>The deed from George Eichelberger to James Smith, containing a very particular recital, (upon which I have already remarked) was never recorded.</p> <p>And it is remarkable, that the subsequent deeds of James Smith and wife to Thomas Neill, Thomas Neill to J. W. Kittera, and Thomas Neill to Henry B. Grubb, do not (though each has a recital of the previous title) contain one word specifically describing or even referring to the right in controversy.</p> <p>These facts, considered in connexion with another, viz. that the conveyance in the deed from David Forree and wife to William Ben-net, was never designed to. pass the title or transfer the possession to any other or more land than twenty acres of the tract then owned by the grantors, containing three hundred and two acres, appear to me to lead to the conclusion, that there was nothing to establish a constructive notice to Jacob Heistand, Sen. or Jun., of the grant of the right to dig and take all the iron ore in the residue of the two hundred and eighty two acres; and since the title of Jacob Heistand Jun., to the legal estate, including the entire fee simple in the eleven acres, with the issues and profits thereof, is unimpeachable on this ground, the title of the plaintiffs, under their agreement with him, to the sole and exclusive right and privilege to dig, take and carry away all the iron ore, of every kind, wherever to be found, upon the said tract, belonging to Jacob Heistand, Jun., is equally unassailable.</p> <p>Upon the whole, I am of opinion that the issue is proved for the plaintiffs, and that they can recover in the present form of action.</p> <p>Therefore, let the verdict for the plaintiffs, assessing their damages at twelve dollars and the costs of suit, be recorded, and let there be judgment thereon.</p> <p>Assignment of error.</p> <p>Upon the facts found by the special verdict, the defendants were, by law, entitled to the judgment of the court; and there is error in its having been rendered in favour of the plaintiffs.</p>

<p>ERROR to the common pleas of Lancaster county.</p> <p>The plaintiff’s claim was for medical services rendered by the plaintiff to the son of the defendant, as it was alleged, at the request of the latter. The witness for the plaintiff below said: “in June 1827, Doctor Sappington was at my house to see my children ; Nicholas Boyd came there, and told him he wanted him to go and see his son William, who was very bad. The doctor made no reply. Mr Boyd said, ‘Doctor, you must come; I am afraid my son will die :’ he hesitated, and agreed logo. Hesaid, ‘If I must go with you, we must go by my house—I must get some medicine.’ William had the dysentery ; he was living with his father; he was Mr Boyd’s eldest son ; he was a single man. This conversation was before he had visited the son.” On the trial, the defendant offered to show that the sou was in business for himself, and had property of his own. This was objected to by the plaintiff, and rejected by the court. The court instructed the jury, that if they believed the facts as proved, they raised an implied promise by the defendant to pay.</p> <p>The rejection of the evidence, and this direction of the court, were the errors assigned.</p>

<p>ERROR to the common pleas of Union county.</p> <p>This was an action of debt bjr John Baskins and John App, administrators of David Fitzsimmons deceased, against Peter Richter. An order was granted to the plaintiffs by the orphan’s court to sell the real estate of their intestate for the payment of debts; and they did sell it to Peter Richter, the defendant, fbr 1322 dollars, and took this agreement from him, upon which this suit was brought. “ I do hereby acknowledge that the foregoing lot of five acres of land, more or less, was struck off to me for the sum of' 1322 dollars, and I do hereby obligate myself to comply with the foregoing conditions of sale. Witness my hand and seal, the 15th of November 1832.” Upon the return of the sale to the orphan’s court, Peter Richter, the purchaser, filed an exception to the confirmation, that the sale was not of the whole lot. The exception was overruled, and the sale confirmed. On the trial of this cause, the defendant offered to prove that the conditions of sale embraced the whole lot of five acres; whereas the deed now offered was for four acres and one hundred and twenty-eight perches. This evidence was objected to by the plaintiff, and the court (Lewis, president) overruled the evidence, on the ground that the evidence was the same which was made the ground of objection to the confirmation of the sale by the orphan’s court, when it was decided ; and the decision of that court was conclusive. The defendant excepted.</p>

This was an action of debt on anote under seal, by Jacob Sypher, surviving administrator of Henry Long deceased, for the use of David Strawbridge, against the administrators of Abraham Sypher deceased. David Strawbridge, for whose use the suit was brought, was married to the heir at law of Henry Long deceased, and the suit was brought for his use, so that Jacob Sypher, the administrator, might be a witness.

THIS was an action of ejectment by John Robins against Hugh Bellas, for three lots of ground in Sunbury. Both parties claimed under Thomas Robins. The plaintiff’s title was founded upon an application of Thomas Robins for the benefit of the insolvent law.of 1814. He presented his petition in 1818; was discharged, and trustees appointed. In 1822 these trustees were discharged, and J. Seitzinger and Martin Weaver were appointed, who gave bond.

This was an action of debt, by Mason Dennison against Abel Fairchild. The plaintiff’s declaration contained four counts: first, on a promissory note of 500 dollars; second, for money paid, laid out and expended, 500 dollars; third, on a settled account and balance due, 500 dollars; fourth, for woik and labour done, and materials furnished, 500 dollars.

<p>ERROR, to Columbia county.</p> <p>This was an action of trespass quare clausum fregit, by Jacob Martz against Christian Hartley, which involved the title to a small strip of land; and the following facts appeared. A warrant issued in the name of Timothy Matlock, and another in the name of John Schneider, the former of which was executed on the 18th of September 1772, and the latieron the 10th of October 1772 and which called for the former as a boundary on the south. By the owners of each of these respective tracts of land, the south line of the Schneider survey was always acknowledged to be their partition line. In 1833 Christian Hartley discovered that the line of the Matlock survey, as actually run and marked upon the ground, did not adjoin or come up to the line of the Schneider survey, but was distant from it, atone end, about nine perches, and running to a point at the other end, or nearly so; and he look out a warrant for five acres, the land which was not actually included within the lines of either survey as run and marked on the ground. The alleged trespass was committed on this strip of land, and the question was, whether the plaintiff had any title? The exception was to the opinion of the court below, the material part of which was as follows:</p> <p>“The court instructed the jury that the marks upon the ground made by the surveyors, or the monuments called for by him at the time of executing the warrant, were the true lines of the survey, and would control the courses and distances in the official draft.</p> <p>“That where no such marks or monuments are found upon the ground, and when there is no evidence of any such having been established at the lime of executing and returning the survey, the courses and distances in the official -draft must be taken in fixing the lines.</p> <p>“That the true location of the plaintiff’s survey must be determined by what was done at the time it was made and returned ; and if made according to the draft returned, it cannot be changed by the deputy surveyor or others concerned in the location of the younger survey, made twenty-two days afterwards, and to which the owner of the first survey was no party. If such younger survey were in fact laid six or nine perches from the first, and the marks upon the ground are still found to show it to have been so laid, a mistaken call, for the older survey as adjoining, when in fact it did not adjoin, will not extend the bounds of the older survey, nor authorise its owner to include within its bounds the vacant lands of the commonwealth not before included or returned. The recognition of the Schneider survey line by the owner of that survey as being also the line of Matlock, at a time when he had no interest in disputing it or claiming beyond his own survey, and when he neither knew that there was any vacant land there nor thought of taking out a warrant for it, would not authorise the owner of the Matlock survey to extend its bounds and include within jts lines the vacant land between the two surveys.</p> <p>“ The statute of limitations does not run against the commonwealth ; there is no person on the ground to look after her rights, and she is not precluded from disposing of the land, as vacant, by the length of time during which the owners of the two surveys have recognized the line of the Schneider survey as the division line between the two tracts. If the jury believe that there is vacant land between the' two surveys, the commonwealth may dispose of it. It is for the jury to determine whether there are marks upon the ground showing that the line of plaintiff’s survey was actually run in a place somewhat different from that returned: if so, (hose marks should be followed ; and if the timber was cut within the lines so ascertained, the verdict should be for the plaintiff. If no such evidences are found, and the jury are satisfied that the lino was left open, the plaintiff' must be confined to the courses and distances in his official draft and in his patent. If this should be found to be the true line, and the timber was not cut within it, the verdict should be for the defendant.”</p>

WRIT of error (o the common pleas of Union county. This was an action of covenant by Tilomas M’Guire, administrator of William Morton against Daniel Rangier, in which the plaintiff’s cause of action was thus set forth. “Daniel Rangier, late of the county of Union aforesaid, yeoman, was summoned to answer Thomas M’Guire, Jun., administrator of all and singular the goods and chattels, rights and credits, which were of William Morion, late of said county deceased, of a plea,…

THIS was an appeal by Jonathan Marsteller from the decree of the court of common pleas of Lycoming county, settling his account as trustee of John C. Minnich and wife. The facts are sufficiently stated in the opinion of the Court, which was delivered by

This was an action of debt for rent, by Peter Sassaman against Jonathan Feagly. Feagly had occupied the premises of Sassaman for three years, and refused to pay the rent, on the ground that the land was claimed by Hottenstein, and he, Feagly, would be liable for mesne profits if Hottenstein should bring ejectment and recover.

This was an ejectment by Charles Tainter and others against the 'ecutors of John Warder for four hundred and ninety acres of land. ~homas Overton being the owner of a tract of land containing ‘in 538ÍTh. iohr hundred and ninety acres and a half, and allowances, &c. the county of Luzerne, on the 6th day of January 1812 conveyed the same to one Charles Tainter, the father of the defendants in error.

This was au action on the case by David M. Bull against Andrew Irvine, in which the plaintiff’s cause of action was thus set out. “That he, the said Andrew Irvine, heretofore, to wit on the 1st day of June in the year 1828, at Bradford county aforesaid, for and in consideration of the sum of 50 dollars to be paid by the said David to him the said Andrew, he the said Andrew undertook, and faithfully promised the said David to execute a’ good and sufficient deed to convey to…

WRIT of error to Columbia county. Debt on bond by Jacob Bittendender against the executors of Henry Bowman deceased. The bond was given for the purchase money of a tract of land on Nescopeck creek, Luzerne county. The defendants gave in evidence the agreement, of sale and the deed of conveyance, both of which described the land by courses and distances, and included a part of the creek for which the vendor had no title.

<p>When two claim title to personal property under the same person, the 'acts and declarations of that person, or others in his presence, while he was the owner, are evidence against him and all who claim under him. A receipt in writing given hy such person for the price of such personal property sold by him is admissible in evidence.</p>

<p>ERROR to the common pleas of Northumberland county.</p> <p>This was an action of ejectment for three hundred and twenty-nine acres of land, by William Levan against Hugh Bellas and Jacob Weiss. The plaintiff gave in evidence a warrant in the name of Benjamin F- Young, dated the I Si h of November 1793, for four hundred acres of land “ adjoining land surveyed in the name of William Gray, Jeremiah Jackson, Thomas Grant, William Shartel and others; and a survey dated the 25th of October 1794, by William Gray, deputy surveyor, of four hundred and seventy-nine and a quarter acres adjoining Thomas Grant, Thomas Hamilton, Jeremiah Jackson, John Cowden, John N. Bailey, William Wilson and William Shartel, which was returned in March 1795.</p> <p>The only important question in the cause, and which was decided by this court, arose out of an offer by the defendant t.o prove “ that the return of survey for B. F. Young, in March 1795, was a fraud upon the land office: that it has no such adjoiners as it calls for : that the survey was never made upon the ground, and would include between eight hundred and fifty and nine hundred acres: and to prove this by facts and circumstances entirely inconsistent with the idea that the survey was made upon the ground. And this evidence was offered for the purpose of showing that the plaintiff has no title to the land in dispute, and that the same was vacant when applied for and surveyed by the defendants, and those under whom they claim.” The plaintiff objected to this evidence, and the court sustained the objection and rejected the evidence, “so far as it tended to show that no survey was made upon the ground.” The defendant excepted.</p>

<p>ERROR to the common pleas of Luzerne county.</p> <p>This was an action of ejectment by John Kleintobb against William Hicks, Lewis Ruby, Enos Trescott and Ebenezer Trescott, for ten acres of land, the site of a saw-mill. The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>The proceedings of the court of common pleas upon a petition for leave to prove a contract for the sale of land by a decedent, may be removed by certiorari to the supreme court for review.</p> <p>The proceedings being summary, and not according to the course of the common law, a writ of error will not lie thereto.</p> <p>The act of the 31st of March 1792, which provides for the proof of contracts by decedents for the sale of lands, and the execution of deeds by the personal representatives, is only designed to embrace the cases of contracts for a valuable consideration, and not a parol gift of land by a father to his son, in consideration of natural love and affection.</p>

<p>— A plaintiff whose interest is transferred after suit brought, is not made a competent witness by the payment, merely, of the costs which have accrued; his liability for the accruing costs must also be extinguished.</p> <p>An agreement to a case stated may be rescinded either by tacit or express consentthe abandonment of it is satisfactorily evinced by the parties subsequently pleading to issue; and when thus abandoned, it is not evidence which may be given to the jury upon the trial of the cause.</p> <p>A case stated having been read to a jury as evidence of the facts contained in it, it is competent to prove by the attorney, who signed it on behalf of his client, that his signature was obtained by artifice, or that the assent of his client was not had.</p> <p>A note or bill taken in satisfaction of a precedent debt imposes no further duty on the creditor than to use reasonable diligence in obtaining payment or acceptance by presenting it in season, and giving notice of its dishonour to the debtor from whom it was had, if he be a party to it. But if he be not a party to it, want of notice is immaterial, unless he has sustained actual loss from it.</p> <p>A plaintiff may suffer a nonsuit at any time before the jury have signified to the court their readiness to give in their verdict.</p> <p>If both associate judges be interested in the event of a cause, qutsre, whether, in order to prevent a failure of justice, a president judge might not alone hold a special court I</p>

<p>ERROR to the common pleas of Armstrong county.</p> <p>Robert MTlhenny v. Archibald M’Kellip. Action on the case for a nuisance. The facts which gave rise to the several points in this case are fully stated in the opinion of the court.</p>

<p>A writ of scire facias to revive a judgment against three defendants, one of whom was dead when the writ is sued, cannot be sustained, but upon a plea in abatement the writ will be quashed.</p> <p>A judgment for the plaintiff upon a plea in abatement that one of the defendants was dead when the writ issued, is quod respondeos ouster. A judgment in chief, is erroneous.</p>

<p>The administrator of a deceased soldier of the Pennsylvania line might draw a tract of donation land, and might receive a patent for the same ; and the title would enure to the benefit of the persons legally entitled. .</p> <p>A certified extract from the general draft of donation land, showing a particular tract for which a patent had issued, may be received in evidence.</p>

This suit was originated by the justice in the name of J. & T. J. Seymour against James Bratton, and when the same came into the common pleas, on motion of the plaintiffs it was amended so as to-be S. & T. J. Seymour. To which the defendant objected, and took an exception.

This was an action of trover for a steam engine, by William Le-mar against John B. Miles, in which these facts appeared: The plaintiff being the owner of a tract of land with two salt wells upon it, entered into this agreement, dated 30th of June 1828 : “ That the said colonel William Lemar hath this day leased and doth by these presents farm let unto the said George W. Johnston and William Barker, their heirs, assigns or representatives, the property hereinafter described,…

This was an action of assumpsit by Alexander W. Foster, Esq. against William Jack.

Bank of Washington v. Isaac Meason. The facts relating to this judgment were these. 30lh of April 1822, judgment: fieri facias to January term 1824, levied on real estate, inquisition and condemnation : scire facias to January term 1828; 6th of January 1831, judgment : amicable revival to January térm 1832, entered the 1 ith of November 1831 :■ fieri facias to January term 1833, not taken out of the office: alias fieri facias to September term 1833, stayed, 500 dollars…

David Norwood against William Henry. Action for a libel. The defendant entered a rule of arbitration : the attorneys of the respective parties appeared and made choice of arbitrators, and agreed to the time and place of meeting. The arbitrators met, the defendant appeared, but the plaintiff did not, and an award was made for the defendant.

<p>ERROR to Butler county.</p> <p>The plaintiff, Archibald M’Call, gave in evidence a regular title from the commonwealth to the land in dispute : the defendants, the heirs of Alexander Lorimer deceased, claimed title by virtue of a sale for taxes by the treasurer. The records of the commissioner’s office did not show that the laud had been assessed and ta&ed as unseated; but they offered to prove by Moses Hanlin,- that “ he was the assessor for 1814, and took down four hundred acres from the preceding duplicate: he called at Lorimer’s house and he was from home, and then put down in the seated list four hundred acres: the next week he saw Lorimer, who told him he would not pay for more than two hundred acres: that he then altered the assessment in his own duplicate, charging him with two hundred acres in the seated and two hundied acres to Nicholas Day in the unseated list: that he retúrned the one he got from the commissioners to the office and did not know, until he saw it iri court, but what he had altered it also.” The plaintiff objected to this evidence on the ground that the assessment of unseated land cannot be established by parol evidence, and which, in this instance, goes to contradict the written evidence of assessment ; but the court overruled the objection, and the testimony was given. The defendants then offered in evidence the private duplicate of Moses Hanlin, which he kept; the private duplicate of the supervisors, and their assessment of road taxes; the list of lost taxes returned by the collector into the commissioner’s office ; the record of an agreement between John Lorimer and Nicholas Day; the sale book of the commissioners ; the surplus bond of Edward Duffy; and a deed from Hugh M’Kee, treasurer to Edward Duffy, for two hundred acres, “ part of John Lorimer’s tract,” dated the 11th of August 1817. This evidence was objected to by the plaintiff; but the court overruled the objection, and the evidence was given. The jury found a verdict for the defendant.</p> <p>The errors assigned were, in admitting the evidence mentioned in the first and second bills of exception.</p>

WRIT of error to Cambria county. This was an action of trover which originated before a justice, who rendered a judgment for the plaintiff for 35 dollars, from which the defendant appealed.

This was a scire facias upon a recognizance, in which the plaintiff in error was the plaintiff below, and the following facts appeared. In the suit of Wickliffe Cowles v. Oliver Cowles, in the common pleas of Crawford county, Brawley, the defendant, was special bail for Oliver Cowles, the defendant in that case.

This was an action of ejectment by William Hall against David W. Rogers and Levi Farnum, for a lot in the town of Wattsburg. Both parties claimed under Charles G. Merrill. The plaintiff gave in evidence a judgment of William Hall against Charles G. Merrill, entered the 27th of March 1827, upon which executions were issued, and the lot in controversy levied and sold to the plaintiff, and conveyed by deed from the sheriff dated the 8 th of April 1830.

<p>A bond for the surplus purchase money of a tract of unseated land sold for taxes, filed in the prothonotary’s office, may be given in evidence in an action of ejectment for the land, without the common law proof of execution.</p> <p>An adjournment “ from day to day” is from one day to its succeeding day. But although the act of assembly authorizing the sale of unseated lands for taxes provides for an adjournment of the sale “ from day to day,” yet a title is good which is founded on a sale made by adjournment to a certain day which did not immediately succeed the first. The uniform practice in Pennsylvania requires this construction.</p> <p>One who has conveyed land by deed containing a special warranty, is a competent witness for his vendee in an action of ejectment for the same land.</p> <p>Whether the land claimed by a plaintiff in ejectment by virtue of a treasurer’s deed be the same that was assessed, taxed and sold, is a matter of fact to be determined by a jury.</p> <p>A purchaser of unseated land from the treasurer has a good title, although his surplus bond never was filed.</p>

<p>An execution issued upon a judgment after the death of the defendant, is not absolutely void, but only voidable; and a sale of land upon such execution vests in the purchaser a good title.</p>

This was an action of trespass quare clausum fregit, by Samuel Lehr against Lebbeus Bigelow and others. Pleas, not guilty, and liberum tenementum. He proved the trespass, and that he was in possession of the locus in quo; and proceeded to deduce title from the patentee of a larger tract, of which it was a portion, to a person as whose property it was alleged to have been levied upon and sold as one hundl#d acres.

Wallace Howe & Co. v. Fairman & M’llhenny. Case on book account.

<p>ERROR to Westmoreland county.</p> <p>This was an issue directed by the court to try the right to money in the hands of the sheriff made out of the sale of the real estate of Joseph Ford, in which John M’Kee was plaintiff and Robert Gilchrist defendant; the facts of which are fully stated in the former-report of the case, in M’Kee v. Gilchrist, 3 Watts 230. The only question now determined arose out of these facts: Mary Ford was called by the plaintiff as a witness and gave evidence; the defendant proposed to give evidence of her general character for chastity. The plaintiff objected, and the' court (Young, president) overruled the evidence.</p>

<p>ERROR to the district court of Alleghany county.</p> <p>Ejectment by the heirs of John Park against Thomas Marshall, for lot No. 120, in Alleghany town. The plaintiffs having exhibited a legal title to the lot in John Park deceased their ancestor, the defendant offered in evidence the proceedings of the court of common pleas upon the petition of the administrator of Robert Knox for leave to prove a parol contract for the sale of the lot in controversy by John Park to Robert Knox, wherein the contract was proved and so decreed; and a deed made by N. B. Craig, administrator pendente lite of John Park deceased to the heirs of Robert Knox, under whom the defendant claimed. The evidence was objected to, 1. Because the letters of administration to N. B. Craig were not produced. 2. Because an administrator pendente lite could have no authority to make a deed. The court overruled the objections, and the plaintiffs took an exception. The plaintiffs then offered to give evidence to disprove the facts established in the proceedings referred to upon which the court of common pleas decreed that the administrator pendente lite should execute a deed. This was objected to and rejected; and the jury, by direction of the court, (Grier, president) rendered a verdict for the defendants.</p>

Commonwealth at the instance of Henry M’Divitt against Dennis S. Scully executor of Eleanor M’Divitt deceased.

This suit originated before a justice, by whom it was referred to arbitrators, who awarded for the plaintiff 29 dollars 26 cents, with costs, from whose judgment the defendant appealed. The cause was tried in the common pleas, and verdict for 24 dollars 40 cents. And on affidavits filed, the court entered judgment without costs; and granted a rule to show why the plaintiff should not pay the defendant’s costs.

<p>A defendant who seeks to avail himself, as matter of defence, of a prior attachment by himself of the plaintiff’s debt in his own hands, must show the existence of the original debt on which the judgment in the foreign attachment was rendered. The record of the judgment is not even prima facie evidence in such action.</p>

<p>ERROR to the district court of Alleghany county.</p> <p>This was an action for a libel by Thomas Brierly against David Hays, in which the plaintiff’s declaration, after stating the good character of the plaintiff, thus proceeds: “ yet the said defendant well knowing the premises, but greatly envying,” &c., “and contriving,” &c., “on the 10th day of January 1834, at the county aforesaid, falsely, wickedly and maliciously did write, compose and publish, and did cause, &c., of and concerning the said plaintiff, in the form of a letter, a certain false, scandalous, malicious and defamatory libel, containing, amongst other things, the false, scandalous, malicious and libellous matter following, of and concerning the said plaintiff; that is to say, we [meaning the said defendant] new [knew] what Brilery [meaning the said plaintiff] dun [done] with Judy M’Clure’s hound slut in their sugar camp, when she was a dogen, [thereby then and there meaning that the said plaintiff was guilty of and had committed with the hound slut aforesaid at the sugar camp aforesaid, the horrible and detestable crime of buggery, illud peccatum horribile non nominandwn inter Christianos, to wit, at the county aforesaid]. By means of the commission,” &c. with the common conclusion.</p> <p>The cause was referred to arbitrators, who made a report in favour of the plaintiff for 500 dollars damages; from which there was no appeal. ■</p> <p>Errors assigned.</p> <p>1. There is no sufficient cause of action set forth in the plaintiff’s declaration.</p> <p>2. There is nothing in the declaration which shows that Brilery named in the paper declared upon, means Thomas Brierly, the plaintiff.</p>

<p>ERROR to Butler county. Special court. Shaler, president.</p> <p>This was an action of ejectment, by Henry Snively against Stephen Luce. James .Cunningham died seised of the land, having made his will, devising the same to his children, John, David, Samuel, Robert and Margaret Cunningham. Robert and Margaret died previously to 1808, intestate and without issue, leaving John, David and Samuel surviving them, against each of whom judgments were obtained, and each of their interests in the land in dispute was separately sold at sheriff’s sale to John Purviance, under whom the plaintiff claimed in the year 1808. Robert Cunningham died in 1807, and Janet Cunningham became his administratrix and settled an administration account in 1809, showing a balance due to her for debts of the intestate paid. She presented a petition to the orphan’s court in 1810, for an order to sell the real estate of the intestate, (his interest in the land in dispute) for the payment of debts ; which was granted, and the same was sold, and the sale was confirmed to John Gilmore. The plaintiff gave evidence that search had been made for the deed of the sheriff to John Purviance for the interest of John Cunningham, where it might reasonably have been expected to be found, and that it had been lost or mislaid; and then offered in evidence the record of it in the court of common pleas, as the next best evidence. This was objected to, but the court overruled the objection and sealed a bill of exceptions.</p> <p>The only questions which were argued in this court were, as to the opinion of the court in receiving the evidence of the record of the deed : and whether the sale of the estate, as the property of John, David and Samuel, after the death of Robert, divested it of the lien of the debts of Robert; or, whether those debts remained a lien upon it, and justified the sale of it by his administratrix and vested a good title in the purchaser. The court instructed the jury that the lien of the debts was divested by the sheriff’s sale.</p>

This was an action of assumpsit by the administratrix of John Donahoe u. James Gray. Upon the plea of set of?) the defendant gave in evidence a note in the following words : “Pittsburgh, April 1st, 1816. On the 1st of May 1819,1 promise to pay John Donahoe or order 50 dollars, in current bank notes, without defalcation, for value received.” Signed “T. Connor. Indorsed “John Donahoe” —together with a regular protest for non payment, and notice.

N. Lewis, the plaintiff below, sued out against James Pauli, Jun. a summons in case, and complained, “ that whereas the said James was indebted, the 20th day of December 1832, to the said N. Lewis, administrator as aforesaid, in the sum of 2646 dollars, for a certain messuage or tenement and premises situated in Dunbar township, Fayette county, containing three hundred and twenty-four acres, strict measure, as ascertained by actual measurement, before that time bargained,…

This was an action on-articles of-'agreement for the sale and purchase of a tract of land, by Robert C.Thompson against John Neil, all the facts of which are very fully stated by his honour, who delivered the opinion of the court. • ; ■

WRIT of error to Indiana, county. Slander by James M’Beth against Solomon Simpson.

<p>Assignees under a voluntary assignment are not liable m an action for money had and received, before an account has been settled and decree made by the court of common pleas.</p> <p>If an execution be illegally issued and levied on assigned property, a promise by the assignees to be personally responsible for the debt upon withdrawing the execution, is void for want of consideration.</p> <p>One who procures an assignment to be made and participates in its benefits, shall not afterwards be permitted to defeat it by levying an execution on the property assigned.</p>

This was an action of trover by Patrick against Thompson, to recover the value of a sleigh and harness.

<p>WRIT of error to the district court of Alleghany county.</p> <p>This was an action of ejectment by Thomas Jones and others' against James Gardner, in which both parties claimed the lot of ground in controversy, by titles derived from Ephraim Jones, who, it was admitted, died seised of a fee simple estate in it. He, before his death in 1807, made his last will, by which, among other things, he devised it to his son Pressly Jones; and appointed Thomas Jones, James Jones, two of the plaintiffs, Pressly Neville and Abraham Kirkpatrick his executors. In 1809, after the death of the testator, his executors having proved the will and taken upon them the execution of it, Doctor Peter Mowry instituted three suits, before John Darragh, a justice of the peace, against them by the name merely of “ Ephraim Jones’s executors,” without naming them by their proper names. In each case the justice entered an appearance of the defendants by Thomas Jones (who was in fact one of the executors, though this does not appear by the justice’s record), and a confession of judgment for a certain sum of money in favour of the plaintiff. Transcripts of these judgments were taken and filed by the plaintiff with the proihonotary, who entered them on the docket of the common pleas. In 1817 writs of scire facias were sued out of the common pleas to revive them without naming the defendants otherwise than in the transcripts filed, to wit, “Ephraim Jones’s executors.” Mr Denny, then an attorney of the court, entered his appearance for the defendants in the writs of scire facias ; and after a rule taken on them by the plaintiff’s attorney to plead, he pleaded nul tiel record : but afterwards judgments were entered without stating how. After this, executions were sued out on these judgments, by virtue of which the lot in question was levied on and sold by the sheriff, in 1822, to doctor Mowry ; from whom the defendant here has derived his claim to it. Pressly Jones, the devisee, died afterwards, in 1824, intestate, without issue, leaving the plaintiffs his heirs at law. Two objections were made to the sheriff’s sale: first, that the judgments under which it ivas made were void ; because it does not appear from the record of them who the defendants were, no person or persons being named thereon as such : and second, that if the executors of Ephraim Jones are to be considered the defendants, and the judgments of any validity at all, they are binding and good only against the defendants personally, and their estates, and not against the estate of Ephraim Jones the testator.</p> <p>The court below (Grier, president) were of opinion that the plaintiffs were not entitled to recover, but that the sale vested a good title in the purchaser.</p>

Thomas Kinhead against George Harger. Trover and conversion of a certificate of a revolutionary claim or pension of 80 dollars annually. The suit was instituted on the 1st of March 1834, when no part of the pension was due ; and upon a former trial of the cause the certificate was returned to the plaintiff. The charge of the court was the only subject of the errors assigned.

Alleghany county. Lawrence Kingland and others, partners, &c. against John Bredin, Esq. The plaintiff in error was the defendant below.

Covenant by Alexander Hannah against John English, and verdict for plaintiff for 225 dollars. On the trial of the cause, the plaintiffs offered in evidence a receipt of E. Onderdonk as rebutting evidence ; the defendant objected, on the ground that the testimony of Onderdonk was the primary evidence ; but the court overruled the objection and permitted the evidence to be given.

<p>ERROR to the commou pleas of Mleghany county.</p> <p>This was an action of ejectment by W. W. Fetterman and Alexander Metcalf, against John Murphy, for a house and lot in the city of Pittsburgh.</p> <p>In 1807 William Nixon, under whom both parties claim, was the owner of the house and lot in controversy. In 1808 a judgment was obtained against him, upon which an execution issued in 1809, which the sheriff returned “ money made.” In 1814 Nixon died, leaving several children, and Flora Nixon and Robert Stewart became his administrators. To January term 1827, a scire facias was issued by S. Kingston, attorney for plaintiff, against the administrators of Nixon, to revive the original judgment, which was returned “served on both defendants.” To this, Mountain, attorney for defendants, appeared and pleaded plene administravit, and confessed judgment de bonis intestati. Sum liquidated at 127 dollars 35 cents; 13th February 1827. A fieri facias issued to April term 1827, which was levied upon the property in controversy; a venditioni exponas to August term 1827, w'hich was returned, that, the property was sold to S. Kingston for 45 dollars, to whom the sheriff made a deed. On the 4th of January 1828, S. Kingston conveyed to John Murphy, the defendant, in consideration of 700 dollars. Robert Stewart, the surviving administrator of Nixon, was sworn, and said that when the scire facias was served on him, he went to Mr Kingston to see what it meant; and he told him that he need give no attention to it, as it was a mere matter of form; and that he had never employed Mr Mountain or any one else to appear for the administrators. David Wilson, the plaintiff in the judgment, was also sworn, and said that the judgment had been paid, and that S. Kingston had never been employed by him to procure its revival or collection: that Mountain had once mentioned the subject of the judgment to him, but he gave him no authority over it. The plaintiffs below were purchasers from the heirs of William Nixon in 1833, and contended that the judgment was fraudulent and void, and the sale upon it to S. Kingston, who was a party to the fraud, was void, and all subsequent conveyances were void; and that the lien of the judgment was lost by lapse of time, and the title was vested in the heirs of Nixon.</p> <p>The court below (Shaler, president) instructed the jury that although the judgment, execution and sale of the property to S. Kingston would be void as to him, yet that it was good as to the defendant, who was an innocent purchaser without notice. And on the subject of the lien of the judgment, the court instructed the jury thus:—</p> <p>“We now come to Murphy’s title. Is he affected if he had no notice of the irregularity or alleged fraud in the proceeding? Let me first look to the lien. Before the statute of 1797, it was indefinite both against heirs and purchasers. The case in 1 Watts has reference only to debts not of record, not to those of record. Whose are lands in Pennsylvania after the death of the ancestor? They belong to the heirs after the payment of debts; they belong to the creditors until then, just as much as though they had been devised subject to th.e payment of debts. All claims were of indefinite duration until the act. They are now limited in certain cases. Is this one of the cases ? I am clear it is not. Suppose a devise had been made to pay debts in England, and at the end of certain years, a bond debtor had come in for his debt; would a chancellor have postponed him for the benefit of the heir or devisees ? It is -clear he would not. How far, in case of alienations by the heirs, the purchaser would be protected, wé are not called upon to say. I here state distinctly, that where a judgment is of record at the time of the decease of (he ancestor; a scire facias issued nineteen years after the date, and judgment obtained thereon, and sale made, divest the title of the heirs. There is nothing, then, in this point, taken unconnected with others, that affects the title of Murphy.”</p>

This was an action of debt by David Adams against Peter Shoenberger and Son. There were several questions which arose in the court below, but they were not discussed here. The only point determined was, whether the defendant below could set off a debt which was barred by the statute of limitation, because the plaintiff had been discharged under the insolvent laws 1 The court (Grier, president) determined that the set-off was barred notwithstanding the discharge.

WRIT of error to the common pleas of Armstrong county. This was an action of ejectment by Archibald M’Call against Henry Sybert and John Barnhart for four hundred acres of land. The plaintiff claimed title under a warrant to William Nixon, which had been directed to George Ross, the deputy surveyor, and which, it was alleged, had been executed by James Buchanan, his assistant. The alleged error was in the opinion of the court on the subject of the proof of actual survey.

<p>In trover against an executor de son tort for goods of decedent, he may, under the general issue, give in evidence payment of defats to the value thereof, in mitigation of damages.</p> <p>But his book of original entries is inadmissible as evidence of such payment, by way of retainer; though it might be, to prove goods sold to, or work done for, the intestate.</p>

<p>ERROR to the common pleas of Erie county.</p> <p>This action of assumpsit originated before a justice of the peace in the name of Hinckley, Sennett & Co. for the use of Lester, Johnson & Co. against Sherban Smith, and was brought into court on an appeal by the defendant, who pleaded in abatement to the writ that the names of the plaintiffs were not set out. The plaintiffs demurred to the plea. The court rendered a judgment for the defendant.</p>

Ejectment for a tract of land by Philip Monahan against Daniel Colgin. The plaintiff exhibited a legal title in himself for the land. The defendant offered in evidence the following agreement, signed by the parties in the presence of witness. “ March 28th, 1832. Articles of agreement between Philip Monahan of the one part, and Daniel Colgin of the other part.

<p>The erection of a dam in a navigable stream, pursuant to the act of the 23d of March 1803, which causes the formation of an obstruction in the stream below, subjects him who erected or maintains it, to any damage which such obstruction may occasion to a navigator. This, not because of a misconstruction of the dam, but of the obstruction which it occasions.</p>

<p>APPEAL from the common pleas of Eñe county.</p> <p>The question arose upon the appropriation of the proceeds of the sale of the real estate of D. C. Barrett upon execution, whether a judgment confessed by the defendant before the prothonotary upon the docket, without any writing filed, was a valid judgment, and a lien on the defendant’s real estate. The court below (Shippen, president) decided that it was.</p>

<p>ERROR to Payette county.</p> <p>Ejectment by John Beeson against Isaac Hutchison.</p> <p>The case and points are fully stated by his honour, who delivered the opinion of the Court.</p>

This was an action of debt on a note by Moses Thompson against Andrew Hickencooper, John Cox, William Cox and John Johnston, and the writ was served upon Johnston alone. The defence by Johnston was, that he was a surety, and that such indulgencehadbeen extended to Hickencooper the principal as released him from liability. The evidence to support this defence was the following deposition of Andrew Hickencooper, who had been made a competent witness by a release.

Arundel Hill against John Leech. This was an action of assumpsit in which the following facts appeared : Alexander W. Sample, who was engaged in mercantile business, being in need of money, had made application to the plaintiff for a loan. The plaintiff agreed to let him have it, provided he could get sufficient security. He mentioned the name of Leech and his mother, as persons that would probably be his security, whom the plaintiff agreed to accept.

Richard Crossland, the defendant in error, sued Thomas Atkinson, the plaintiff in error, in debt, before a justice of the peace. The cause was referred. The referees awarded for the, plaintiff a certain sum. Execution was issued by the justice for the sum awarded and costs, without any judgment having been formally entered on the award.

<p>ERROR to the district court of Mleghany county.</p> <p>Alexander M’Clurg against William H. Hays, David Adams, John Feehan, James Taylor, Thomas Taylor and Samual K. Page. Jlsswnpsit on book account. All the facts of this case, and the question which arose, are fully stated in the opinion of the court.</p>

This was an action of assumpsit by Abraham Horbach against John Huey, for money had and received. James Moorhead, Silas Moore and the plaintiff had been partners in a line of stages, for whom the defendant kept a stage-office and received money, for which this action was brought.

This was an action of assumpsit in the name of Joseph L. Chase & Co. against John G~. Morse. Plea non assumpsit. The jury found a special verdict for the plaintiff for 106 dollars, and that Thomas H. Sill was a partner in the firm of Joseph L. Chase & Co. at the time of the contract mentioned in the plaintiff’s declaration. .

This was an action of covenant, brought by Joseph Young against John Steel, surviving guardian and trustee of Alexander Campbell, an habitual drunkard. The declaration set out that Alexander Campbell, before inquisition found, had entered into the covenant to pay, upon which the action was brought, &c. The defendant pleaded specially that the covenant was of Alexander Campbell, and not of him the defendant.

WRIT of error to Crawford county. This was an action of ejectment by Samuel Givens and Elizabeth his wife, against Alexander M’Calmont and John Nelson, for the one-seventh of a tract of land which had been vested in fee in Elizabeth, the wife of Samuel Ray.

The real estate of Henry Stouffer was sold by the sheriff upon an execution, and the proceeds were brought into court for appropriation; and the question arose whether the judgment of Hugh Love’s executors was entitled to priority of payment over otherjudgmentsentered before it, under the following circumstances.

This was an action of debt by John F. Braddee against Basil Brownfield, to recover the penalty provided by the act of the 13th of April 1791, for refusing to enter satisfaction upon a judgment.