Volume 4 — Watts & Sergeant's Pennsylvania Reports

Peter Lazarus against William and David Follmer, executors of Adam Follmer, deceased. Case in assumpsit. The whole case is fully stated in the opinion of the Court.

Warner M. Preston against Jacob Killam. This was an action on the case in assumpsit. The case is fully stated in the opinion of the court.

John B. Packer and others, heirs at law of Samuel J. Packer deceased, against William M. Gray. Ejectment for the undivided sixth part of a tract of land. The plaintiffs’ claim was founded upon the following paper: “ Johnston & Gray’s heirs v. Joseph Wallis. Ejectment in the Common Pleas of Northumberland county for 440 acres of land in Shamokin.

George Ulrich against Jacob Berger. This was an action of debt on a bond, to which the defendant pleaded payment with leave to set-off; and under this plea gave in evidence a single bill of the plaintiff for $57.22.

WRIT OF ERROR to the Common Pleas of Northumberland county. This was an action of ejectment by Elizabeth Menges and others, heirs at law of Solomon Menges, deceased, against George Oyster for 300 acres of land. The plaintiffs provéd the original title to have been vested in Solomon Menges, deceased, and that they were his children and heirs at law.

<p>ERROR to the Common Pleas of Union county.</p> <p>Isaac M’Kinney & Sons against Nathan Mitchell. This was an action of debt, in which the plaintiff filed a statement claiming $209.12. The defendant made an affidavit of defence to part of the plaintiffs’ claim, and the court, on motion of the plaintiffs, rendered a judgment secundum regulam for the residue, amounting to $184.01. This sum, together with all costs, the defendant paid to the plaintiffs’ attorney. A rule was then taken upon the defendant to plead to that part of the statement to which the affidavit of defence was made. The defendant pleaded specially the entry of the judgment and payment of it; to which the plaintiff demurred, and the defendant joined in the demurrer.</p> <p>The rule of court is, “That the plaintiff shall be entitled to judgment, &c........unless- an affidavit be filed on or before the application for judgment, setting forth that the defendant verily believes he has a just defence to the whole or part of the plaintiff’s demand, as the case may be, and if to part, specifying how much.”</p> <p>The court below rendered a judgment on the demurrer for the defendant.</p>

<p>A vendor of land, who has performed so much of his part of the agreement that he cannot be put in statu quo, and there is no default on his part in performing the residue, or he is prevented from completing it by the default of the vendee, is entitled to specific performance.</p> <p>Where the case requires it, specific performance of an agreement for the sale of land may be enforced by means of a conditional verdict in an action of ejectment.</p>

<p>The discharge of one who gives bond for his appearance to take the benefit of the insolvent law, by a Judge or the prothonotary, is binding upon the sheriiF who has the debtor in custody, whether the bond given be legal or illegal.</p> <p>A petitioner for the benefit of the insolvent law, whose application has been rejected, in order to relieve his security, must surrender himself upon the day of his rejection; a subsequent surrender is ineffectual, and an escape from it would not charge the sheriff with the debt.</p>

William Hartley against Calvin Bell. This was an action of ejectment for a tract of land, containing.100 acres, for which the plaintiff gave in evidence a regular chain of title from the commonwealth down to himself.

<p>ERROR to the Common Pleas of Bradford county.</p> <p>Robert C. Hall and Gordon F. Mason against Samuel Cranmer, Jun. and others. This was an action of ejectment for two tracts of land, containing 800 acres, to which the defendants took defence, for one of the tracts. The original title was indisputably in the plaintiffs. The defendants claimed by virtue of añ assessment of the land for taxes for the years 1813 to 1817 inclusive; a regular sale of it by the treasurer, in 1818, to the commissioner's, and by them regularly charged with taxes until 1826, when it was sold to John Irvine, who then went into possession, and whose title, by several mesne conveyances, became vested in the defendants. The plaintiffs, in answer to this, proved that the land was not unseated for those years, but was assessed in another name as seated land, and the taxes paid. The defendant^ then relied upon the limitation of five years, provided by the Act of 1804, and upon the Statute of Limitations, after 21 years’ possession, contending that the purchase of 1818 by the commissioners, and the charge of taxes against the land in their books, from that period, conferred such a legal possession as that the statute would then begin to run against the real owner, and enúred to the benefit of the defendants.</p> <p>Conyngham, President, in answer to these propositions, instructed the jury that if the land was not unseated, the sale to the commissioners was void, and the limitation contained in the Act of 1804 had nothing to do with the subject. That an actual possession for 21 years was necessary to give title, and the commissioners of the county could claim no exemption from this construction of the Act. If, therefore, the land was seated when the taxes for which it was sold were payable, the defendants had no title.</p>

David Lyon against Benjamin Abbott. This was a scire facias upon a recognizance entered into by the defendant as security for Selah Abbott, upon an appeal from the judgment of a justice of the peace. The writ recited a recognizance in due form according to the terms of the Act of Assembly; to which the defendant pleaded “ payment, with leave,” &c. upon which issue was joined.

<p>It is fatal to the confirmation of a public road that no order was made by the court respecting the width of it.</p> <p>A public road cannot be located alongside of and adjoining another public road so as to increase the width of both exceeding 50 feet.</p>

<p>In an action of debt upon a sealed note, if it be admitted by the pleadings that the note was to be paid only in the event of a certain contingency, the plaintiff must prove that the contingency has happened, or he cannot recover: it is not sufficient to rely upon the consideration which the character of the instrument imports.</p>

Henry B. Stone and Hosea H. Arnold against George Young and Aaron Young, administrators of David Young deceased. This was an action of assumpsit, founded upon the following facts, as set out in the plaintiff’s declaration: The plaintiffs were the owners of an estate called the “ Torrey Mill property,” upon which there was an encumbrance in favour of H. T. Allen & G. Allen of $2500.

The Commonwealth, for the use of the Bank of Pennsylvania, against Frederick Pontius. This was an action against the plaintiff, as surety of John Cummings, sheriff, to recover the amount of several executions, at the suit of the bank, against Mathias J. App, which were put into, his hands for collection.

This was an ejectment brought by Ignatius Adams, the plaintiff in error, against Henry Easton, Patrick Sommers, James Howell, Mary Conway, John H. Jones and William B. Thompson, tenants in possession, and Thomas Jackson, admitted afterwards to defend as landlord, the defendents in error, for the recovery of the possession of about 75 acres of land lying in Alleghany and Summerhill townships, in the county of Cambria..

<p>APPEAL from the decree of the Orphans’ Court of Allegheny county, made in respect to the partition of the real estate of Thomas Sampson deceased, late of Wilkins township, Allegheny county, who died intestate in August 1833, seised of two tracts of land situate in Wilkins township, Allegheny county; one containing 300 acres bounded by lands of William M’Crea and others; the other containing 150 acres, bounded by lands of John Duff and others. At the time of his death he left a widow, who died about two weeks afterwards, and seven children, viz. John, Thomas, William, who died in 1836, after having conveyed a part of his share and interest in the lands aforesaid to James Kelly, Mary, David, Margaret, intermarried with Stewart Thompson, and James, whose interest and share in the said estate was sold by the sheriff to James Kelly, before named. The Orphans’ Court of Allegheny county, on the 25th of April 1839, upon the petition of John Sampson, the eldest son of the intestate, awarded a writ of partition or valuation directed to the sheriff of said county, commanding him, by means of an inquest of twelve men, to make partition of the lands and estate aforesaid, to and among those interested therein and entitled to the same, or to make a valuation thereof according to law. The sheriff accordingly, by an inquisition taken and dated on the 28th June 1839, reported a division of the lands into seven purparts or shai'es, but of unequal values.</p> <p>The first purpart, containing 43 acres 144 perches, valued at.......$5133.</p> <p>The second “ “ 52 « 12 “ “ “....... 5133.</p> <p>The third “ “ 53 “ 5 “ “ “....... 4918.</p> <p>The fourth “ “ 68 “ 7 “ “....... 4883.</p> <p>The fifth « “ 100 •“ 0 “ « “....... 4126.</p> <p>The sixth “ “ 111 “ 31 “ “ “....... 5011.</p> <p>The seventh “ “ 103 “ 85 “ “ “....... 5011.</p> <p>On the 19th September 1839, the court, by consent of the parties interested, confirmed the division and valuation as reported in the inquisition. At the same time, all the parties being in court, John Sampson, the eldest son, elected to take the sixth purpart; Thomas, the second son, elected to take the seventh purpart; James Kelly and Mary Sampson having become the assignees and owners of the share and interest of William Sampson, the third son of the intestate, declined making a joint election as assignees of William, as Mary Sampson was not willing to join Kelly in doing so. David Sampson, the fourth son, by his attorney in fact, declined taking any of the remaining purparts. James Kelly, vendee of the interest of James Sampson, the fifth son, elected to take, the fifth purpart. Mary Sampson, the eldest daughter of the intestate, elected to take the second purpart; and Stewart Thompson and Margaret his wife, the youngest daughter of the intestate, elected to take the first purpart. But all the representatives of the intestate severally refused to take the third and fourth purparts, or either of them. Whereupon David'Sampson, by his attorney, applied to the court to have them sold under an order made by the court for that purpose; but the court, conceiving it had no authority to make such order, refused to grant it, but decreed and ordered the purparts of the estate, elected to be taken, to those respectively who had elected to take the same, subject, however, to the payment of such sums as were necessary to equalize the value thereof, according to the appraisement made by the inquest and returned by the sheriff; the payment of which several sums the court directed to be secured by the parties respectively entering .into a recognizance with bail for that purpose; which was accordingly done to the satisfaction of the court. From this decree of the court David Sampson appealed.</p> <p>The appellant alleged that the Orphans’ Court erred in ordering the purparts of the estate, elected to be taken, to those who elected to take the same, upon their entering into recognizances to pay such sums of money as were necessary to equalize them according to the appraisement made by the inquest and confirmed by the court, before the whole estate was taken or disposed of; and secondly, that the court erred in refusing to order a sale of the third and fourth purparts of the said estate, which no one or more of the representatives of the intestate were willing to take at their appraised value.</p>

' William Poster for the use of Willis Benedict against Daniel Pox, with notice to Daniel Stratton, terre-tenant. This was a scire facias upon a judgment in ejectment. The original was an action of ejectment by William Foster against Daniel Fox, in which a general judgment for the plaintiff was confessed on the 21st of October 1830.

George Cochran, executor of John Speer, who survived James B. Cochran, against John O’Hern and the executors of Sarah O’Hern, with notice to the terre-tenants. Scire facias upon a mortgage, which conveyed two lots of ground; the defence was that the mortgagors had not such title as they could convey.

Thomas Wickersham against Washington Mason and William Dilworth, lately trading in the name of Mason and Dilworth. This was an action of assumpsit to recover the amount of a book account.

Thomas G. Campbell, executor of Mary Bracken, against Alexander Miller. And the same plaintiff against Walter H. Lowry and Walter Forward, executors of Marian Pride, deceased. These causes involved the same facts and questions of law. The charge of the court, which contains a clear statement of the facts of the case, and the questions of law raised, was the only subject of the assignment of error.

Ezekiel Sankey against Samuel M’Cleary. On the trial of this cause, the plaintiff offered in evidence the deposition of a witness taken in pursuance of the following notice:— “ Take notice, that the depositions of witnesses to be read in evidence on the part of the plaintiff on the trial of the above stated case, will be taken at the house of Okey Hendrickson, in Mount Joy, in Lancaster county, Pa., on Monday, March 1st 1841, between the hours of 10 o’clock A. M. and 5…

John L. Kirkpatrick, who sued as well for himself as for the commonwealth, against Samuel Houston. This was an action of debt for the penalty imposed by the statute against usury. The proof was, that on the 12th of August 1840, the defendant loaned to the plaintiff $1800, and took his bond for $2000, payable on the 1st of October 1840, with a warrant of attorney to confess judgment.

Daniel Call against Henry Ward, guardian of Robert Shepler and Lucinda Shepler. This was an action on the case in which the plaintiff declared in indebitatus assumpsit, and the defendant pleaded non assumpsit. Jacob Shepler died in 1832 seised of a farm; he left a widow and two children, Robert and Lucinda, both minors under the age of 14 years, of whom the defendant, Henry Ward, was guardian.

This was a proceeding before two justices of the peace under the landlord and tenant law by James Cunningham, guardian of the children of John Kirkpatrick, deceased, against Francis Gardner, to obtain possession of a tract of land alleged to have been leased by Kirkpatrick in his lifetime to Gardner.

This was an ejectment for 53 acres 45 perches of land, brought by Jacob Kronk, executor of John Kronk, deceased, against Joseph Kronk. The plaintiff gave in evidence a deed in fee of the land in controversy to his testator from Michael Baker and wife, dated 25th of April 1830.

This was an action of ejectment for 800 acres of land by George Robb against Christian Ankeny and others. The title to the land was in Gen. Arthur St. Clair, under whom both parties claimed. He, by deed dated the 26th of February 1796, conveyed the same to his daughter, Louisa St. Clair, in fee-tail. She was afterwards intermarried with Samuel Robb, and had issue by him George Robb, the plaintiff.

Edward O’Neal against Daniel O’Neal and Edward Faber. This was an action of debt upon an insolvent bond, in which the breach assigned was that the said Daniel O’Neal did not appear to take the benefit of the insolvent laws, in pursuance of the terms of his bond. A judgment was rendered by default against Daniel O’Neal for want of an appearance and plea for $910; being the amount of the penalty of the bond.

Archibald M’Call against Alexander Larimer. This was an action of ejectment for a tract of land containing 209 acres. This case has been twice before reported, and the facts of it are again so clearly stated in the opinion of the court as to render any other unnecessary. The cause was argued by Sullivan, for the plaintiff in error, and Gilmore, for defendant in error.

<p>ERROR to the District Court of Mercer county.</p> <p>William Karns against Jacob Bigler. This cause was so imperfectly exhibited as to be almost unintelligible: but it appeared to be an action of ejectment for 100 acres of land, part of lot No. 681, of 200 acres, in the fourth Donation District.</p> <p>The plaintiff called Samuel White, who testified that “he went on the land in 1827 by virtue of a transfer from William Karns of a treasurer’s title, and a deed from Karns to him for 100 acres of lot No. 681 in the fourth district.” The plaintiff then offered in evidence a treasurer’s deed dated.the 11th of June 1811, to Robert M’Dowell, for lot No. 681, sold for the taxes of 1809; and a transfer of that deed to William Karns, dated the 18th of September 1813; together with the surplus bond. The defendant objected to this evidence because the title was not shown to be out of the commonwealth, and because the witness spoke of having possession of a part of lot No. 681, and which was not in dispute. The court overruled the objection and sealed a bill of exception.</p> <p>The defendant then offered in evidence a deed from the collector of the United States, made in pursuance of a sale for direct tax to John Bigler for the north half of lot No. 681, dated the 12th of June 1821; and to prove that John Bigler went into possession under that deed of the land in dispute in 1822, and made large improvements; and that he and the defendant, who was his son and heir-at-law, had been in possession ever since. The plaintiff objected.</p> <p>The court below said: “ It is admitted that the requirements are not at hand to make out the regularity of the direct tax sale. The deed being void, cannot be received for any purpose: nor do we think that a person in under such a deed or an intruded pould prevent the statute from running in favour of the holder of" the treasurer’s title: and we also think that the entry under the treasurer’s title by'the sale of the 100 acres enured to give the statute effect to the extent of the whole tract.</p>

<p>A plaintiff, in an action on the case in assumpsit, may amend his declaration on the trial of the cause, by increasing the amount of his claim in the several counts, and making a corresponding alteration in the amount of damages; and whether this be a sufficient cause to entitle the defendant to a continuance of the cause, is a matter of discretion with the court.</p> <p>The acts and declarations of a partner after the dissolution of partnership cannot be given in evidence to affect any one but himself; but if he be both plaintiff and defendant by virtue of the Act of Assembly of the 14th April 1838, they may be given in evidence for that purpose, and to affect his co-defendant who acted with him.</p> <p>The acknowledgment of a defendant that a certain sum is due, raises an implied promise to pay the amount, and it is recoverable under a count for account stated.</p>

This was an action of ejectment by David Reese against Humphrey Waters and Achsa his wife, for a tract of land containing 51 acres. Held: by which it was extended and valued at $100 per annum.

<p>A treasurer’s sale of unseated land is void, when it appears that the tax for which it was. sold was actually paid, although the county commissi oners misunderstood the payment and applied it to another object. The error of the officer will not deprive the owner of his land.</p>

<p>ERROR to the Common Pleas of Washington county.</p> <p>William Jackman against John Ringland. This was an action of ejectment for 100 acres of land, the original title to which was in William Jackman, the father of the plaintiff, under whom both parties claimed.</p> <p>The plaintiff was the only son and heir-at-law of William Jack-man, deceased, and gave in evidence a judgment of Jacob Vandergrift against William Jackman and others, entered to March term 1816, upon which executions were issued, and levied upon the land in dispute, which was sold by the sheriff in 1819 to John Ringland, the defendant, for $600. The plaintiff then offered to prove by Seth Buffington that he purchased the land at the sheriff’s sale for John Ringland, and received the purchase money from him and paid it to the sheriff; that William Jackman remained in possession of the land until he died, which was in 1820; that there was an agreement between Ringland and Jackman that Ringland should purchase the land and hold the title, and that Jackman should be at liberty to redeem it by repaying the purchase money and interest, and a compensation to Ringland for his trouble; that the plaintiff was an infant at the death of his father, and that immediately upon his coming of age, he tendered the purchase money and interest and brought the suit, and now had the money in court ready to pay.</p> <p>The court below (Ewing, President) rejected the evidence on the ground that if given, it would not entitle the plaintiff to recover.</p>

' Sarah M’Call and others against John Coover, Samuel Myers, and others. This was an action of ejectment for 403 acres of land in Beaver Dam township.

This was an action of ejectment by Sarah M’Call and others against Peter Himebaugh, William B. Weed, Elymas Vancurin and Frederick Shade, and was in its facts and circumstances so like the preceding case, as to require no further statement than that contained in the opinion of the court. It was also argued by

This was an action of ejectment by Sarah M’Call and others against Christian Yople, Nathaniel Bruce, John Dimond, David Yople, John Brown, Frederick Warren, and Hiram Bruce. The single point decided requires no further statement of the facts of the case than that contained in the preceding cases and the opinion of the Court. The cause was argued by the same counsel.

<p>The recital in a treasurer’s deed for unseated land of the amount for which the land was sold, is not conclusive evidence of the fact; but the purchaser, in support of his title, may show, by the sale-book and parol evidence, that it sold for a different sum; and that the surplus bond given by him corresponded with the actual amount for which the land was sold.</p> <p>A defendant in ejectment having proved a title by actual settlement, it is not competent for the plaintiff to show that the defendant had purchased and claimed under another title by warrant and survey: for even if true, the prior title would not merge in the latter.</p> <p>Superintending a survey or paying the fees, is sufficient evidence of ownership of the application or warrant upon which it is made, unless rebutted by evidence of ownership in the person in whose name the application was entered or the warrant was issued.</p> <p>If one who is interested that the plaintiff shall recover, be called by the defendant and examined as a witness as to a particular fact, he is thereby made a competent witness for the plaintiff as to other facts.</p>

Samuel Dale and others against James Kennedy and others. When the jury were called into the box in this case, the plaintiffs having waived their first challenge, the defendants also waived theirs. The plaintiffs then offered to challenge a juror, to which the defendants objected. But the court, (Thompson, President), allowed the challenge, and the defendants excepted.

Porter and Cassidy against M’Cullough and Richardson. This was an action of trespass de bonis asportatis. The plaintiffs, merchants resident in Pittsburgh, entered into the following arrangement with William Alexander, of Beaver, for the sale of goods: Pittsburgh, 30th August 1839. “ Porter and Cassidy agree to consign to William Alexander groceries to the value of $ , to be sold by the said Alexander at not less than the invoice prices of the said goods.

John Forsyth brought this action on the case against William M’Call, Abraham Horbach, Samuel Reisher, James Spratt and Samuel Elder, to recover damages for an injury done to him by the upsetting of the defendants’ stage.. M’Call and Horbach were alone served with process, and for them alone was there any appearance or plea.

This was an action of ejectment for 300 acres of land by James C. Fisher against Barnabas M’Caffrey and Thomas M’Caffrey. The original title to the land was indisputably in the plaintiff, and the defendants claimed by virtue of the Act of Limitations. Their entry was without colour of title; and Judge Grier instructed the jury, that the defendants’ right must be'limited to the land actually cleared twenty-one years before this suit was brought.

<p>ERROR to the Common Pleas of Westmoreland county.</p> <p>J. W. Barry and Harriet his wife, against James Seaton, scire facias sur recognizance.</p> <p>Thomas Seaton died intestate, and without issue, seised of a tract of land which descended to his heirs at law, John, James, and Harriet Seaton, who became the' wife of the plaintiff. James became the owner by purchase of John’s share, and instituted an action of partition in the Common Pleas against Barry and wife, and obtained judgment quod partitio fiat; and upon a writ departitione faciendo the land was appraised at $4933.22, and the same was allotted to James Seaton, who entered into a recognizance to Barry and, wife for the one-third part of the valuation money. This' action was brought upon that recognizance.</p> <p>The defence was, that the land was encumbered in the lifetime of the intestate, Thomas Seaton, with the right of dower of Elizabeth Jamison, who brought an action and recovered $723.91 against the defendant, James Seaton; and also that it was encumbered with the collateral inheritance tax due to the Commonwealth of 2J per cent, upon the whole valuation. ,The parties agreed to these facts, and that the court might enter judgment for such amount as in their judgment the plaintiff was entitled to recover.</p> <p>The court' below was of opinion that neither of these matters of defence could avail the defendant; that the recognizance upon which suit was brought was a debt of record, fixed by the proceeding in partition, and not liable to be affected collaterally, and therefore rendered a judgment for the full amount of the plaintiff’s claim.</p>

The Commonwealth for the use of S. and J. Moore against William Rainey, Peter M’Guire, Michael M’Guire, and John Rainey.

This was an action of ejectment for 400 acres of land by Andrew Stewart against James Roderick and Charles Colvin, and upon his own motion L. Springer was made a co-defendant. Andrew Stewart, having a legal title to the land in dispute, on the 29th of July 1839 gave a lease of it to the defendants from year to year in consideration of the payment of a nominal rent.

This was an action of trespass by Edward Campbell against Alexander Baird, George Harger and Joseph Livingston, in which the defendants were charged with selling and carrying away the plaintiff’s goods. Alexander Baird had obtained a judgment before a justice against Edward Campbell, the plaintiff, upon which he had an execution issued and put into the hands of Joseph Livingston, upon which the present plaintiff’s goods were levied and sold.

This was a writ of error to the District Court of Allegheny county, where an action of ejectment was brought by Samuel Sprague against John Woods, for 30 acres of land in Reserve township. The plaintiff’s claim was founded on his possession.

This was an action of ejectment for a tract of land by James Mackey and others against Stephen Stuck, William Crawford, and Bazil Brownfield. Grier, President, before whom the cause was tried, thus stated the facts of the case, and determined the law of it.

George Grishobber against Michael M’Cullough and James Black, trading in the name of M’Cullough & Co. This was an action against the defendants for maliciously suing out a writ of domestic attachment against the plaintiff.

These were actions of covenant against the Monongahela Navigation Company: one by Sherman Bills and George D. Foreman, and the other by James Fenlon and Joseph Patton. They involved the same principles.

John Carney against the Township of Wheatfield. The plaintiff had been supervisor of the township for the year 1823. On the 23d of April 1824, the township auditors settled his account and found a balance in his favour of #281.58, for which they gave him an order upon his successor in office; and this was an action on the case in assumpsit to recover the money from the township.

This was an action of covenant brought by Rachel Montgomery, guardian of Sarah Montgomery, against Cadwallader Evans and wife, on a lease dated the 1st of March 1839, from the plaintiff to one John B. Miller, of a lot in Allegheny town of 45 feet by 90, for fourteen years from the 1st of April 1839.

Jonathan Hill against John Roderick and others. This was an action of ejectment.

G. E. Warner & Co. against James O’Conner & Co. This was an action on the case for the recovery of rent, under the following circumstances: Warner & Co., on the 27th of… Held: they assigned on the 6th of September 1838, to Elisha Tucker, for the period of their own term, for the annual rent of $150. Tucker erected a building on the ground thus leased to him. Warner & Co. furnished him with the lumber for it, and filed a mechanic’s lien therefor on the 1st of April 1839.

The petition of John G. M’Guire for leave to prove a parol contract, &c., set forth that Jonathan R. Sage on or about the 31st January 1839, was seised of and in a certain in-lot in Franklin, No. 571, on which were erected a small frame dwelling-house and frame stable. That being so seised, did by parol agreement contract for the sale thereof to the petitioner for the sum of $300, to be paid to Sage.

<p>ERROR to the Common Pleas of Venango county.</p> <p>William Irvine and Mary, his wife, against William Clay, administrator of Agnes Clay, deceased. This was a scire facias upon a transcript filed of a balance in the hands of the defendant as administrator of the estate of Agnes Clay, (formerly Agnes Stewart), his deceased wife, as found by auditors; to which the defendant pleaded payment with leave, &c.</p> <p>The plaintiff gave in evidence the report of auditors, showing a balance of #458.10 upon the administration account of William Clay, administrator of Agnes Clay, deceased. It was admitted that Mary Clay, the wife of the plaintiff, was the daughter of Agnes Clay and the defendant. That Mary married Robert W. Irvine, who died since the report, and was now married to the plaintiff; that Agnes Clay died about the year 1814, leaving two daughters, Mary the wife of the plaintiff and another by the defendant. The defendant then proposed to prove that he was a man of limited means of supporting and educating his children, and unable to do so without the use of the means received from the estate of his former wife, their mother; and that he maintained and educated the wife of plaintiff from the age of three years until she married between seventeen and eighteen years of age. The plaintiff objected to this evidence, and the court sustained the objection, and sealed a bill of exception at the request of the defendant.</p> <p>Errors assigned:</p> <p>' 1. The court erred in rejecting the evidence.</p> <p>2. It appears from the record that the plaintiff below was not entitled to recover.</p>

<p>It is not necessary that the widow and heirs should be made parties to a writ of scire facias, to revive a judgment and continue its lien upon the land of the decedent. The 34th section of the Act of 24th of February 1834, is not applicable to such cases.</p>

Edward Duff against George A. Bayard, John Freeman, and Alexander Miller, trading under the firm of Freeman & Miller, and Thomas K. Litch and David Cinnamon, trading under the firm of Litch & Cinnamon, owners of the steamboat “ General Brady.” This was an action on the case in assumpsit to recover the amount of an account for supplies furnished for the steamboat “ General Brady,” and the only question in the cause was whether the defendants were such owners as made them…

David Kirkpatrick against Jacob D. Mathiot and Noah Mendall. This was an action of ejectment for the undivided fourth part of a tract of land: in which the parties stated the following facts, and considered them in the nature of a special verdict.

This was an action of ejectment by Francis Lynch against William Dalzell, in which the plaintiff, inter alia, gave in evidence the record of a judgment against William Dalzell, a fieri facias issued upon it and a levy upon the house and lot in controversy, describing it as being “ a leasehold property, with some nine or ten years to run.” The property was sold by the sheriff upon the fieri facias, and he made a deed to the plaintiff for it, which was regularly acknowledged…

John Shawhan and William B. O’Skelton, trading in the name of John Shawhan & Co., against Henry W. Jones.

This was an action on the case for money had and received by Pollard M’Cormick and Alexander Brackenridge, trading in the name of M’Corraick & Co., against Samuel Singer.

This was an action of ejectment for lot No. 1264 in the borough of Erie by Henry Frick against James M. Sterrett. The original title to the lot was in Henry Frick.

Frederick Seitz against The Firemen’s Insurance Company. This was an action on the case founded upon the renewal of a policy of insurance against fire.

Henry Sott against William Kelso. This was a scire facias against the defendant as constable, to recover the amount of an execution put into his hands at the suit of the plaintiff against John Cooper for $86.12. Upon the trial before the justice a judgment was rendered for the defendant, from which the plaintiff appealed to the Common Pleas, where the cause was tried, and a verdict rendered for the plaintiff for $86.75.

John M’Clure, Jun., against George D. Foreman and J. K. Morehead. This was an action of debt upon an insolvent bond. The declaration set out the bond dated 21st of November 1840, penalty $2000, with this condition: “ Whereas, said Foreman was arrested on a ca. sa.

John M’Kenzie, administrator of Eli M’Kenzie, deceased, against the executors of Peter Cassiday, deceased. Scire facias quare executio non.

James Parke against Samuel Smith, Samuel Royer, A. N. M’Dowell, and John Turbet, trading in the name of Smith, Royer & Co. The plaintiff claimed on a note dated 24th of May 1837, for $2632, payable two years after date, drawn by Samuel Hall, payable to Smith, Royer & Co., and endorsed by Smith with the name of the firm, Smith, Royer & Co. On the 27th of May 1839, it was protested, and notice given, &c. It was admitted the defendants were partners in the iron business.

Henry Baldwin against John Nickle. This action originated before a justice of the peace, and was brought to recover a book account. The plaintiff proved his account.

This was an action on the case in assumpsit by the' president and managers of the Huntingdon and Indiana Turnpike-road Company against M’Anulty and Sterrett, in which an award of arbitrators was made against the plaintiff. John S. Isett, sequestrator of the company, entered an appeal, made the oath and gave the recognizance with security which the law required. A rule was granted to show cause why the appeal should not be stricken off for the following reasons:1.

Robert Orr against Robert Cunningham and others. This was an action of ejectment for 1030 acres of land. The plaintiff gave in evidence a warrant for 1000 acres of land to John Nicholson, dated the 30th of August 1793, a survey made the 1st of September 1819, and returned 7th of December 1819; and deduced this title by a regular chain down to himself.

Enoch Hankins died on the 29th of November 1835, leaving four children surviving him, and several grandchildren, the children of two deceased daughters. By his last will and testament, he thus disposed of part of his estate: “ To my daughter Ann, I give and devise the farm and all the personal property which I now possess and whereon I live, provided she does not get married ; also, the house and lot on the Monongahela river, on the same conditions.

This was an action of ejectment by William Meanor and Catherine his wife against Daniel M’Kowan, John Williams, and John Browski, for a tract of land. Jacob Haymaker married the daughter of Michael Rugh, and had by her issue three children. The original title to the land in dispute had been in Michael Rugh, and by an arrangement between him and his son-in-law, the latter went into possession of the land and claimed it as his own.

William Devall against James W. Burbridge. This was an action on the case; founded upon the alleged misfeasance and negligence of the defendant, in the capacity of agent of the plaintiff. The case is sufficiently stated in the opinion of the court.

Jacob Anstatt against Jacob Poth. This was an action of covenant to recover the balance of purchase money of several lots of ground, sold by the plaintiff to the defendant. Both parties claimed under John M’Kee.

William G. Alexander and I. Addison Stockton against Robert H. Forrester and William D. Smith.

Wolfe & Boswell obtained a judgment upon a recognizance entered into by Nesbit to entitle a defendant in a judgment to a stay of execution. And the question was, whether Nesbit was entitled to a stay upon the judgment against him.

Upon the death of Jabez Colt, who died intestate, there were several judgments, and among others two in the Supreme Court of the State of New York; one in favour of Joseph Colt for #1800, and one in favour of Somuel Colt for $2400.

<p>ERROR to the District Court of Allegheny county.</p> <p>Sylvanus Lothrop against William A. V. Magaw. This was an action of covenant upon the following agreement between the parties:—</p> <p>“ Agreement made this 13th day of July 1835, between Sylvanus Lothrop of the one part, and W. A. Y. Magaw of the other part.</p> <p>“ Sylvanus Lothrop sells to the said W. A. Y. Magaw, his heirs and assigns, a lot of ground, supposed to contain about two acres and a half, being the same premises described in a certain article of agreement between William Stewart and John M’Kee, dated 14th of October 1833, and recorded in Book S, p. 527, and which the said William Stewart conveyed to Sylvanus Lothrop on 21st of December 1833. A clause of general warranty is to be inserted in the deed, which said Lothrop shall finally make to said Magaw. W. A. V. Magaw agrees to pay to the said Sylvanus Lothrop, for the premises, the sum of $10,000, as follows ; — viz. $2500 on 1st of April 1836, with interest from this date on the whole of the purchase money ($10,000), and the balance in four equal annual payments, from the said 1st of April 1836, with interest payable annually from that date, on whatever purchase money may remain due. Witness the hands and seals of the parties, the day and year above written.”</p> <p>The defendant had paid $2500 on this contract.</p> <p>The defendant pleaded payment, covenants performed absque hoc, and specially “ that the plaintiff did not deliver the possession to the defendant in manner and form, &c.and to so much of the plaintiff’s declaration as alleged a tender of a deed, that the plaintiff did not tender a good and sufficient title for said lot, conveying the same in fee-simple with clause of general warranty.</p> <p>The plaintiff, after giving in evidence the agreement, exhibited the original title papers of the property sold, which it was proved were tendered to the defendant before suit brought. It was also proved that after the date of the agreement the lot was taxed in the name of the defendant, and that he paid the taxes and occupied the lot part of the time for a board-yard.</p> <p>The defence was, that the title tendered by the plaintiff was defective, and it did clearly appear, that when the tender was made, the title was defective, inasmuch as there was an outstanding right of dower in a very small interest on the property; but that it was made perfect before the cause was tried. The defendant also called a witness to prove that he made a tender of the purchase money, and this for the purpose of establishing his right to rescind the contract, which he contended he did; and at all events to relieve him from the payment of interest. The witness on that subject testified as follows:—</p> <p>“ On the 1st day of October 1840,1 was present, at the request of Wm. A. V. Magaw, when a conversation was had between him and Sylvanus Lothrop, Wm. Eichbaum and D. C. Stockton, the two latter being assignees or trustees of Sylvanus Lothrop, relative to a piece of property in Bayardstown, which the said Magaw two years since purchased of said Lothrop. On the occasion referred to, Mr Magaw tendered to S. Lothrop, W. Eichbaum, D. C. Stockton, Lyon, Shorb & Co. and S. Gormley’s checks on banks in Pittsburgh, for $10,000, and demanded of them a deed to said property in Bayardstown, which they declined giving him, on account of inability to make a sufficient title; they, however, were willing to accept the tender of the checks as legal, or rather waived the formality of his (Mr Magaw’s) bringing specie to make the tender, but considered the checks as sufficient. Mr Magaw then demanded the refunding of the money paid by him, on account of the purchase, which Mr Lothrop declined doing, on account of present inability to comply. He, however, expressed his willingness to give him real property of any kind he had at a fair valuation, in lieu of the amount he had received already on the purchase of the Bayardstown property.”</p> <p>Sharer, President. — The circumstances in this case raise three principal questions: 1. Whether the title, as it now stands, and which the plaintiff can now tender, is defective ? 2. Whether the offer to pay the purchase money on the 1st of October 1840, before the plaintiff had it in his power to complete the title, is equivalent to a performance, and absolves the defendant from his contract ? And 3. Whether the plaintiff, having resorted to his action of covenant whilst there was acknowledged encumbrance, the title to dower of James’s widow, can recover, although that title has been extinguished before trial.</p> <p>His Honour here examined the title, and instructed the jury that it was perfect at the time of the trial, and then proceeded as follows:—</p> <p>Then, as in the second general matter, I state to you, that after the tender made and demand of title, I think equity would allow the vendor a reasonable time to perfect his title and to offer it to the vendee, and that, therefore, that offer, connected with the circumstances that have been heretofore adverted to, cannot be considered in the case as equivalent to performance, and will not absolve the defendant from the contract. I infer that there was no recision of the contract by the defendant: there was no offer to redeliver possession; there appears to have been negotiations upon the subject of the title subsisting after the 1st of October 1840; the title papers were given to the defendant to examine after the tender of the money: he took them for that purpose, and whether he pointed out defects of title afterwards does not appear. I do not think he can, in this stage of the proceedings, allege a recision of his contract, after having permitted the plaintiff to go on for all that appears without objection in endeavouring to complete a title, and involving himself in expenses for the purpose. The plaintiff appears to have brought his action whilst there was an outstanding encumbrance of dower, which he was bound to extinguish. He has since extinguished it and perfected his title. Can he sustain the action of covenant ? This I deem a new question. I shall decide it in favour of the plaintiff, in order that all the questions, some of them very important, may be decided in the case. I think the pleadings and the evidence under them convert this action into a new proceeding in equity, and the questions that arise, involve the right of the plaintiff to enforce a specific performance of the contract. I take it, if the vendor at the time of the decree prayed for has a title which the vendee is bound to take, that it cannot be alleged that such title accrued after the commencement of the proceedings. I should say, then, although with very great hesitation, that the plaintiff may.in this case recover, although he had not extinguished the encumbrances of dower before commencing his action. I am strongly disposed to think that, after the tender of the purchase money, the plaintiff was bound to tender an unencumbered title before bringing this action; but as the title is now perfected, I have already said, and repeat, that the completing the title after suit brought entitles the party to recover.</p> <p>Upon the whole case, I charge you that the title exhibited by the plaintiff is sufficient; that there is no defect or encumbrance connected with it, that furnishes a sufficient ground to the defendant, either in equity or law, for refusing to perform his contract, or pay the money covenanted to be paid, and that he is entitled to your verdict for principal and interest, reserving for you the question, as to interest from the 1st of October 1840, until the time of bringing the suit, and that in rendering your verdict, you may order that the deed of Lothrop and his assignee be filed by the plaintiff, before taking out his execution; and as the title was not completed before suit brought, the plaintiff shall have a verdict without costs.</p> <p>To this opinion, the defendant excepted.</p>

Rebecca M’Kelvey and James M’Kelvey against John Truby and others. This was an action of ejectment for 56 acres of land. The plaintiffs gave in evidence a warrant and survey and patent to James Glentworth for a tract of land containing 415 acres, and exhibited a regular chain of title vesting the same in Rebecca M’Kelvey and David M’Kelvey as tenants in common. They intermarried, by which the whole estate became vested in the husband and wife.

This suit originated before a justice of the peace, and was brought in the name of Andrew Giffen against William Kerr and H. Hulse, overseers of the poor of Upper St. Clair Township. From the judgment of the justice the defendants appealed to the Court of Common Pleas, where the plaintiff declared against the Township of Upper St. Clair, a body corporate.

Henry Sandford and others against Allen Kramer. This was an action on the case in assumpsit, founded upon the defendant’s endorsement of a negotiable note. No notice had been given to the defendant of the non-payment of the note; but the plaintiffs insisted that notice was waived by the endorser’s taking a judgment bond and the proceedings upon it.

<p>A mere entry by a widow into the land of her deceased husband, claiming it, and taking the rents and profits for twenty-one years, is no disseisin of the heirs at law; to make it such, there must be some plain, decisive, unequivocal act or conduct on the part of the widow, amounting to an adverse and wrongful possession and disseisin of the heirs.</p>

J. H. Smith against John M’Grew. This was an action of ejectment for a lot of ground in the borough of Allegheny. The plaintiff . claimed under a title derived from the treasurer upon a sale of the lot as unseated for taxes. The defendant held the original title. The only question in the cause was whether the lot was the subject of sale as unseated. The evidence was not brought up, and nothing more appears than is contained in the opinion of the court. The cause was argued by

This was an execution in nature of a foreign attachment under the 35th section of the Act of 16th of June 1836, relating to executions, on a judgment for $67.33, recovered in the court below by Bollman, Garrison & Richey against T. J. Corbyn. The writ contained a clause of scire facias against L. S. Johns, Esq., a justice of the peace, as garnishee.

Andrew Scott against Palmer Pierce. This was an action on the case in which the facts appeared to bethat Andrew Scott being the sheriff of the county of Erie, and having in his hands a writ of foreign attachment against William L. Hall, by virtue of it, attached a field of 5 acres of wheat, which the defendant after-wards took and carried away.

Church, M’Vay & Gordon against John Tassey. This was an action on the case in assumpsit, founded upon the following draft: $555.48. “ Allegheny, 1st July 1840. Please pay Church, M’Vay & Gordon, five hundred and fifty-five dollars forty-eight cents, and charge the estate of Thomas C. Patterson. Andrew Fleming, Trustee.

<p>ERROR to the District Court of Mercer county.</p> <p>Thomas Hanna against Robert Maris, John Maris and Joseph Maris. This was an action of ejectment for 40 acres of land. The opinion of the court contains the statement of the case.</p>

This was an action on the case by William B. Foster against George Poe, Jr. The facts of the case were so voluminous, and involved so little principle, as not to justify any other statement of them than that contained in the opinion of the court.

This was an issue directed in the court below, to try the validity of a paper, purporting to be the last will and testament (nuncupative) of Gertrude Frick, deceased, in which George, Henry, Gertrude and Maria Frick were made plaintiffs, and Jacob, Eve and Maria Boyer, John Waltman and Magdalena Lessig, defendants. The plaintiffs were children of testatrix’s husband by a former wife, a sister of the testatrix. The Boyers were children of another sister.

It was a proceeding instituted under the 10th and 11th sections of the Act of 8th of March 1815, incorporating the Schuylkill Navigation Company, (a) On the 25th of December 1840, referees mutually appointed awarded in favour of the plaintiffs, and both parties appealed.

This was an ejectment brought by John Lewis against Charles Lewis, in which a verdict and judgment were rendered for John Lewis, the plaintiff below and defendant in error. The facts of the case are fully stated in the opinion of the court.

This was an- action of trespass vi et armis quare clausum fregit et de bonis asportatis, brought by Jacob Ridgway, Joseph R. Ingersoll, and others, surviving trustees of the Philadelphia, Germantown and Norristown Rail-road Company against Ardemus Stewart, Sheriff of Montgomery county, and Michael Wilt.

THIS was an ejectment for ^ parts of an acre of land in Spring Garden, tried before the Chief Justice at JVisi Prius, in which a verdict was rendered for the defendants, and the plaintiffs obtained a rule to show cause why there should not be a new trial.

This was an amicable scire facias brought by Timothy Dawes against Barnabas Davis, as garnishee of John Quick & Son, on a judgment in foreign attachment.

THE fii’st of these cases was a replevin brought by Frederick Dawson and Philip Thomas Dawson, trading under the firm of William Dawson & Co., against Patrick Ryan and John W. Ryan, trading as P. Ryan & Son, and was tried at Nisi Prius in November 1842, before Judge Kennedy, who directed the jury to give a verdict for the defendants, which was accordingly done, and judgment was subsequently entered thereon.

<p>Qussre, whether proceeds of sales made by assignees of goods transferred to them under a void assignment can be attached in their hands by execution in nature of an attachment.</p> <p>They cannot, where the interest of the debtor in the goods has been previously levied on by the plaintiff in execution, and released on a bond given by the assignees to pay their value in case the assignment is declared void, which bond is afterwards forfeited and paid.</p> <p>' If, however, a second assignment be made after the sale of the goods by the assignees, passing all the claims and rights of the assignor, it is clear a subsequent attachment is too late to affect them.</p> <p>Proof of a sale of personal property under a judgment and execution between other persons, and that it was bought in and held for six years and then sold - again, is admissible.</p>

<p>ERROR to the Common Pleas of Bucles county.</p> <p>This was an action brought by Thomas H. Jackson against Giles Knight on two promissory notes, dated 4th of July 1839, each for $1000, payable at 6 and 9 months after date, drawn by the defendant to the order of the plaintiff. The defendant pleaded payment with leave, &c.</p> <p>The defendant gave in evidence an agreement, dated 26th of October 1839, by which the plaintiff agreed to convey to him a lot of ground in Beaver county, for the consideration, among others, of $3000, to be paid in notes of $1000 each, payable respectively ■at 3, 6 and 9 months from 4th of July 1839; in consideration of which sums, when all should have been paid to the plaintiff, he was to execute a deed with covenants of general warranty of the property in the names of both as joint owners.</p> <p>The defendant gave in evidence the record of a judgment for $1860, obtained in the Common Pleas of Beaver county, on the 8th of August 1840, against Jackson by Stephen Paschall, on which a ca. sa. issued, and Jackson was committed to prison; and the following agreement of 10th of October 1840, on which he was discharged:</p> <p>“ I agree to the discharge of the defendant from imprisonment upon this writ, upon the payment of the costs and jail fees, without prejudice to the future liability from the debt and interest of the judgment, which is to remain in full force and unimpaired.” This agreement was signed by the attorney of Paschall -and by Jackson.</p> <p>The defendant alleged that this judgment remaining due and unsatisfied was a lien on his property which Jackson agreed to convey to him; that no conveyance of the property had been made to him by Jackson, and that the encumbrances on it prevented him from making a good title.</p> <p>The judge charged the jury:</p> <p>“ The first question is, was the plaintiff bound to tender a deed before he brought this suit? Here notes were given, and the money was to be all paid before the deed was to be' made. After the payment of the notes, the defendant will be entitled to his deed. We instruct you that the legal construction of the agreement of the parties given in evidence, does not require a tender of a deed before the bringing of this action on the notes. The omission to tender a deed does not bar the plaintiff’s right to recover.</p> <p>The plaintiff asks us to instruct you that the arrest of the plaintiff by virtue of the ca. sa. issued in the case of Paschall v. Jackson, was a discharge of the lien of the judgment, and that the discharge of Jackson by the attorney of the plaintiff, was a" discharge of the debt. The arrest on a capias ad satisfaciendum is itself not a satisfaction of the debt. The general principle is that where a defendant is in execution on a ca. sa., and plaintiff consents to his discharge, the debt is gone. This principle has been carried to an unreasonable and oppressive length, and often to the great injury of unfortunate debtors. The general law will be found in Sharpe v. Speckenagle, (3 Serg. & Rawle 464). No case precisely like the present has been shown. Here, by agreement in writing with the defendant, endorsed on the writ and signed by the counsel and the defendant, his body was to be released without prejudice to the future liability for the debt and interest of the judgment, which is to remain in full force and unimpaired. Such a discharge is for-the benefit of the defendant; it comports with humanity, justice and common sense. Besides,' we do not think the defendant should be bound to take the title with this encumbrance hanging over it. We instruct the jury to deduct the amount of the judgment from the plaintiff’s demand.”</p> <p>Both parties excepted to this opinion. The jury rendered a verdict for $286 for the plaintiff, who took out this writ of error, and assigned for error:</p> <p>1. The court erred in charging the jury that the release of Jackson from imprisonment by the attorney for Paschall, was not a discharge of the lien of the judgment obtained in that case, and was not a satisfaction of the debt.</p> <p>2. In directing the jury to deduct the amount of the judgment obtained by Paschall against Jackson from the plaintiff’s demand.</p> <p>3. In charging the jury that the defendant was not bound to take the title with the above-mentioned encumbrance hanging .over it.</p>

<p>Devise to testator’s wife of his real and personal estate, for her to be master and overseer of the whole until his son C. shall arrive at the age of 21, and then she is to be genteelly maintained by his son 0. during her natural life; if she married, to have only the property she possessed when married; and provided she married before his son became of age, his executors were to lease or hire out the farm, and that money to be put to interest for the use of his son C. when he became of age, when he was to enter into full possession. He also gave him other specific lands, and then declared, “ and the said land is all entailed to my son C. so that he shall not sell or dispose of the same.” He then gave legacies to several daughters, to be paid by 0. by instalments, after he came of age. Held, that C. took an estate tail by the devise.</p> <p>Wherever there is an express limitation of ,the interest devised, a direction that the devisee shall pay pecuniary legacies does not make his interest a fee-simple.</p> <p>It seems a simple bequest of a legacy to be. paid by a devisee of land', without more, does not amount to a charge of the legacy on the land. In the absenpe of something to that effect, it is a charge on the devisee personally.</p> <p>If a legacy to a feme sole be charged on land, and she marries, and her husband takes a bond for it from the devisee to himself, it extinguishes the charge.</p>

<p>ERROR to the Common Pleas of Northampton county.</p> <p>This suit was brought before a justice of the peace by John M’Gargell against The Hazleton Coal Company, to recover the penalty of $50 under the second section of the Act of 22d March 1817, for issuing the following note:</p> <p>“ No. 1237.-Incorporated 1836. — Capital $400,000.-B.</p> <p>5 5</p> <p>“This is to certify that there is due from the Hazleton Coal Company to P. A. Reading, or bearer, FIVE Dollars, Value Received, payable one year after date, at the office of the Company, Philadelphia, with interest at six per cent, per annum, being part of a loan authorized by the Act of the Legislature of Pennsylvania of the 8th day of March 1839.</p> <p>Philadelphia, Jan’y 1, 1840.</p> <p>R. Miner, for Treas’r. SAM?L MOORE, Pres’t.”</p> <p>The plaintiff called a witness, who testified that he was well acquainted with the handwriting of Samuel Moore; had seen him write and received letters from him, and that the signature to the note was his; and then offered to prove by the witness that Samuel Moore, who signed the note and on whom the summons was served, said he was the president of the said The Hazleton Coal Company; was called such, acted as such, and was de facto the president of the company when the note in question was signed. That the witness had a conversation with Moore about the taking of the notes, like the one for the issuing of which this suit was brought, for the Hazleton Coal Company, in payment for coal; that Moore said he would take them as the president of the Company for coal; that he told the witness he had made arrangements as the president of the company, along the line of canal, with the merchants and grocers to take the notes, like the one in question, of the boatmen of the company.</p> <p>The defendant objected to this evidence, and the court rejected it; to which rejection the plaintiff excepted, and assigned it for error.</p>

<p>If a surety pays the creditor, he has a right to a mortgage formerly given to the creditor as collateral security; but if it be paid by the principal debtor, or out of a trust fund belonging to him, the mortgage is extinguished, and an assignment of it by the surety to secure moneys borrowed on his individual account is invalid, especially if the lender knew before such assignment that the mortgage was paid off.</p> <p>The court is not bound to answer points proposed on a trial which, according to the rules of court, are out of time.</p> <p>A witness, after having stated that certain notes were discounted at bank, and the proceeds applied to pay a mortgagee who assigned to the bank, may be asked whether one of them was paid, though it is not produced, nor evidence given what became of it.</p>

THIS was an appeal from the Orphans’ Court of Montgomery county. The facts of the case are sufficiently stated in the opinion of the court, The case was argued by

This was an action of assumpsit brought by John and Joseph Pugh, executors of Evan Pugh, against Giles Knight, on the following note: “ Philadelphia, July 4th, 1839. $1000. Twelve months after date, I promise to pay to the order of T. H. Jackson, with interest, at the United States Branch Bank, at New Brighton, one thousand dollars, without defalcation, for value received. Giles Knight. (Endorsed), “ Pay to Evan Pugh.” T. H. Jackson.

THIS was a qui tam action brought by John F. Lamb against William Lindsey, Joseph Sharp, and Joseph Lindsey, to recover the penalty given by the Act of 2d of March 1723, for taking usurious interest. The facts of the case appear in the opinion of the Court. It was tried at Nisi Prius before Mr Justice Kennedy, who charged the jury (inter alia) as follows: “ It is objected that the action is not brought in time. Can more than one penalty be incurred?

THIS was an action of covenant brought by Richard Morris to the use of William Stephens against The President and Managers and Company of the Delaware and Schuylkill Canal. The cause was arbitrated, and an award was rendered in favour of the plaintiff, from which the defendants appealed without giving bail. A rule to set aside the appeal, with leave to take out execution, was argued by

THIS suit was brought before a justice of the peace of Bucks county by John Hamilton and David Grier, copartners under the firm of Hamilton & Grier, against Jesse Hellings, and an appeal taken to the Common Pleas.

<p>A condition in an insolvent bond that the obligor shall appear and make application for the benefit of the insolvent laws at the next term of the court, is performed by a discharge at an adjourned court between the date of the bond and the time fixled'in it for his appearance.</p>

This was a scire facias on a mechanic’s claim, brought by Jacob O. Ewing against John B. Barras and Benton Costen, to which the defendants pleaded non assumpsit, payment and set-off, with leave, &c. The claim filed described the property as “ all that certain three story brick building, situate in Clinton street, on the north side thereof, and 130 feet east of Eleventh street, in the city of Philadelphia, containing in front on said Clinton street 20 feet, and having three…

<p>APPEAL from the decree of the Orphans’ Court of Bucks county. The case was argued by</p>

This was an action of partition brought by Thomas S. Ridgway, the defendant in error, against Jacob W. Seitzinger, George D. B. Keim, Charles Wetherill, Samuel P. Wetherill, John P. Wetherill, William Wetherill, and Rebecca Gumbes. The deaths of two of the defendants were afterwards suggested, and others substituted.

THIS was an appeal from the decree of the Orphans’ Court of Chester county.

Coster, trustee for the New York and Schuylkill Coal Company, against Joseph M. Eldridge and John R. Brick, on a bond executed by the defendants to the plaintiff.

THIS was an action of assumpsit brought in the Common Pleas of Lehigh county, by Thomas B. Wilson and Matthew Selfridge against Margaret Wilson. The marriage of the defendant with Joseph K. Saeger was suggested before trial, and he was substituted as defendant, with notice to John Gross, trustee of Margaret Wilson, under a marriage settlement. The death of Selfridge was suggested on the trial.

THIS was a writ of error to the Court of Common Pleas of Bucks county. It was assumpsit brought by the Doylestown Bank of Bucks county against Phineas Jenks, on a promissory note, dated 2d of October 1837, drawn by Chapman Buckman to the order of Phineas Jenks, and by him endorsed, for the payment of $250 in 60 days after date, at the Doylestown Bank of Bucks county.

COMMONWEALTH ex relatione John Dungan against the Hon. Joseph B. Anthony, Judge of the Nicholson Court. This was a rule on the defendant to show cause why a peremptory mandamus should not issue, commanding him' to restore the relator, John Dungan, to the office of commissioner on the part of the creditors of John Nicholson, deceased.

<p>Where a municipal corporation act under an authority to regulate and grade the ascents and descents of streets, it is error in an action on the case against them for obstructing the flow of water, to submit to the jury whether their object was to benefit the private property of the corporation: the only question is, whether they possessed the authority which they exercised.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was an action of assumpsit brought by Henry Carroll and William Sterret, executors of Samuel Sterret, deceased, against the executors of Henry Nixon, deceased. The first count of the narr. alleged that on the 4th of March 1818, Thomas Morris procured Samuel Sterret, deceased, and Robert Johnson to become his sureties to the State of Maryland, for the faithful performance of the duties of Morris, as .administrator of Archibald Kane, deceased ; and before the execution of the bond, promised Sterret to procure for him counter security from Nixon against any injury that might accrue to Sterret by reason of his becoming surety as afoi’esaid. That Morris, Sterret and Johnson afterwards, on the day aforesaid, (4th of March 1818), by their writing obligatory duly sealed, acknowledged themselves bound to the State of Maryland in the full and just sum of $20,000, in the whole and for tfie whole, jointly and severally. That the condition of that obligation was, that if Morris should well and truly perform the office of administrator aforesaid, according to law, and in all respects discharge the duties required of him by law as such administrator, without any injury or damage to any person interested in the faithful performance of the said office, then the obligation was to be void. That Nixon, in consideration thereof, and that Sterret had sealed the bond, trusting to the promise of Morris to procure him the guaranty of Nixon; afterwards, on the 18th of March 1818, at Philadelphia, in the lifetime of Nixon, promised and undertook, and then and there promised Sterret that he would indemnify him against all loss and injury which he might sustain in consequence of his having become surety as aforesaid. That Sterret, confiding in the said promise of Nixon, had ever since continued to be the surety of Morris, without attempting to procure other security, according to the promise of Morris, or otherwise as he might have done, protect himself from his said liability.</p> <p>The plaintiffs then averred that Morris did not faithfully perform his duties as administrator as aforesaid, but that the bond to the State of Maryland became forfeited, and that the State of Maryland recovered judgment upon the bond, after the death of Sterret, against the plaintiffs, his executors, on the 12th of May 1837, to be levied of the goods and chattels which were of Sterret, for $20,000, and $37.17 costs, to be released on payment of $8918.65, with interest .from the 12th of May 1837. That the plaintiffs paid that sum to the State of Maryland, with costs of suit; whereupon Nixon became liable to pay them the said sum with interest from the 12th of May 1837, &c. Then followed the usual breach.</p> <p>Th‘e second count stated the execution of the bond as before, (alleging no previous promise by Morris to procure the gu.aranty of Nixon), and then proceeded to state that by the provisions of the Act of Maryland then in force, it was provided that if any security of an executor or administrator should conceive himself to be in danger from the suretyship, he might apply to the Orphans’ Court which granted the administration, and that the said court might call on the said party to give counter security, to be approved by the court; and if the party so called should not give, within a fixed and reasonable time, such' counter security, the court might order the property remaining in the hands of such executor or administrator, to be delivered up to such security; and that Nixon, in consideration of the premises, and that Sterret*, at the special instance and request of Nixon, would forbear to proceed under the said law, and to call on Morris to give counter security, in the manner and under the penalty therein provided, thereupon, to wit, on the 18th of March 1818, undertook, &c., (as in the former count). That Sterret, confiding in said promise, did forbear to call on Morris for counter security, of which Nixon had notice, &c.</p> <p>The third count stated the bond as before in the second count, and then set out the consideration thus: In consideration of the premises, and that Sterret had become surety as aforesaid, and would, at the special instance and request of Nixon, forbear to call upon and demand of Morris counter security, according to the provisions of the Act of Maryland, &c., Nixon, on the 18th of March 1818, undertook, &c., (as before); and averred that Sterret confiding, did forbear, &c.</p> <p>The 4th count stated the bond as in the last, and that in consideration thereof, and that Sterret had become joined in said bond at the special instance and request of Nixon thereupon, on March 18th, 1818, he undertook, &c.</p> <p>The defendant pleaded non assumpsit and the Statute of Limitations.</p> <p>The bond to the State of Maryland, and its execution by all the parties, was duly proved, and its forfeiture by Morris, suit against Sterret, judgment for sum named in narr., and the payment of it as therein alleged by the plaintiffs as executors of Sterret. The bond was in the following words :</p> <p>Archibald Kane'sAdministration Bond. ( Maryland Sc'</p> <p>Know all men by these presents, that we, Thomas Morris, Samuel Sterret, and Robert Johnson, all of Baltimore county, are held and firmly bound unto the State of Maryland in the full and just sum of $20,000, to be paid to the said State of Maryland, to which payment well and truly to be made and done, we bind ourselves, our and every of our heirs, executors and administrators, in the whole and for the whole, jointly and severally, firmly by these presents, sealed with our seals, dated this 4th day of March, in the year 1818.</p> <p>The condition of the above obligation is such, that if the above named Thomas Morris shall well and truly perform the office of administrator with the will annexed of Archibald Kane, deceased, according to law, and shall in all respects discharge the duties of him required by law, as administrator with the will annexed aforesaid, without any injury or damage to any person interested in the faithful performance of the said office, then the above obligation shall be void; it is otherwise to be in full force and virtue in law.</p> <p>Thomas Morris, SEAL.</p> <p>S. Sterret, J3EÁL."</p> <p>Robert N. Johnson, "seal.'</p> <p>Signed, sealed, &c.</p> <p>The plaintiffs gave in evidence the following correspondence:</p> <p>Philadelphia, 12th March, 1818.</p> <p>Dear Sir, — Mr Thomas Morris having informed me of his having taken out letters of administration on the estate of Archibald Kane, deceased, and that you have become one of his sureties to the Orphans’ Court of the State of Maryland, for the faithful performance of his trust, I do at the request of Mr Morris hereby promise and agree to indemnify you against all loss or injury you may sustain in consequence of your having become security for him in this businéss.</p> <p>Henry Nixon.</p> <p>Samuel Sterret, Esq.</p> <p>Baltimore, February 19, 1829.</p> <p>Henry Nixon, Esq., Philadelphia.</p> <p>• Sir, — Our friend, Mr Thomas Morris, who took out letters of administration on the estate of Archibald Kane from the Orphans’ Court of' this place, has been called upon to account for his administration at the suit of one of the creditors of the estate. As one of his sureties, I have been called on, as Mr M. did not reside in the State. I advised him of these proceedings, and urged his compliance with the summons of the court. In answer he wrote that he would appear at the appointed time. He did not. Another day, at my solicitation, was named by the court. In reply to my notification of the second arrangement, he writes under date, February 14, ‘ I was fully convinced when I wrote you last, that I should have been enabled to make an arrangement here which would have provided me with the means of settling the business in Baltimore, and cancelling your suretyship for me. It is with the utmost pain that I have now to inform you that I have altogether failed in the success which I had promised myself. I am so situated that it is impossible for me to leave the city.’ This most mortifying and unexpected intelligence has exposed me to a suit and a certain judgment for a large amount. I know not exactly how much, as Mr Morris never communicated with me on the subject. Under these circumstances I look to you for redress and indemnity in virtue of your letter of the 12th March 1818, in which you promise and agree to indemnify me against all loss and injury I may sustain in consequence of having become security for Mr Morris."</p> <p>I give you the earliest notice in my power of the awkward predicament in which we are placed, that you may take the necessary steps to secure yourself, which, considering the relation between you and' Mr Morris, I hope will not be a difficult task. This occurrence makes me very miserable, and I pray you to relieve my feelings as soon as you possibly can.</p> <p>Yours, &C. Samuel Sterret.</p> <p>Philadelphia, February 24, 1829.</p> <p>Dear Sir, — Your letter of the 19th inst. has given me surprise and pain, for the matter to which you refer has passed from my thoughts. Do me the favour to send me a copy of my letter of 10th March 1818, of which I have none, and write me also whether Mr Morris has taken any steps since the administration, such as filing an inventory, settling an account, or anything of this nature. Write me also what steps are necessary for him to take to show the amount of the assets for which he is accountable, and please state the amount for whieh you gave bond, and the date. It comes upon me without any preparation for the event, and my first duty of course is to ascertain my actual position.</p> <p>With great respect, I remain, Henry Nixon.</p> <p>Philada. 24th, 1829.</p> <p>Philadelphia, March 3d, 1829.</p> <p>Dear Sir, — Your favour of the 28th February is received, and in reply I have to request that without delay you will obtain for me a copy of the bond given by Mr Morris and yourself, as it is absolutely necessary that I should have it. I hope you will grant my request, and prevent my applying to some other person to obtain it for me, which I should regret.</p> <p>Very respectfully, Henry Nixon.</p> <p>Dear Sir, — Your favour, enclosing the opinion of Mr Heath, was duly.received, and immediately forwarded to Mr Morris. By this day’s mail I received the annexed reply, and flatter myself that Mr Morris will, without fail, forward on to you his account, and which I trust will be satisfactory.</p> <p>With great regard, I remain,</p> <p>Henry Nixon.</p> <p>S. Sterret, Esq. ’ Philada. May 27, 1829.</p> <p>(Copy.) New York, May 26, 1829.</p> <p>Dear Nixon, — I yesterday received your letter, with its enclosures. I had long since ascertained from the insurance office the amount of payments made to them by me for John Kane, whose notes I had endorsed, but which notes were given for premiums of insurance for his brother Archibald. The amount of payments thus made by me is $5502.83. Of this I have made oath before a Judge of the United States, and would have forwarded long since, had I been able to procure from a Mr Douglass an account of the last payments made by him to me as administrator. I had at an early period received from him, after deducting expenses, $6724.87. This amount I know from my own memorandums to be correct. I received at a later period upwards of $2000 more. Mr Douglass was out of town when I first wrote to him to furnish me with the precise amount of the last payment. He has repeatedly since his return promised to furnish me with it. I will again attempt to get it from him, but if I cannot, I will send my account on without it. My receipts will show the exact amount.</p> <p>Yours affectionately, Thomas Morris.</p> <p>(Copy.)</p> <p>Henry Nixon, Esq.</p> <p>Dear Sir: — The suit against me as Thomas Morris’s security, for which you engaged to hold me harmless and indemnified, must very soon come to a termination. The trial was urged with great zeal by the plaintiff, ,but the ingenuity of Mr Heath, the counsel employed by Mr Morris, has obtained a little longer delay. The result does not admit of a doubt. Whilst the matter is still depending, and before judgment, it has been suggested to me a favourable compromise might be made. As Mr M. seems to have abandoned all care of the business, I give you the hint as I received it. I cannot act in the business without your authority, but whatever you advise and direct shall be attended to with a scrupulous regard to your interest; or perhaps it would be most desirable to delegate Mr Heath to make the compromise when he sees the most favourable opportunity. It is high time the matter was finally settled, and however unpleasant, the crisis must be met. Let me know your pleasure as soon as convenient.</p> <p>Yours, &c. S. S.</p> <p>S. Sterret, Esq. — I beg leave to acknowledge the receipt of your favour of yesterday. I shall write you again on the subject in a few days. With great respect, I remain,</p> <p>Henry Nixon.</p> <p>Philadelphia, April 29th 1833.</p> <p>S. Sterret, Esq.</p> <p>Dear Sir: — Will Mr Heath and yourself be at home the latter part of this week or the beginning of the next ? A friend of mine will be in Baltimore for a day or two, at that time, and will call to procure all the information necessary.</p> <p>With great respect, I remain your obedient servant,</p> <p>Henry Nixon.</p> <p>Philadelphia, May 4th 1833.</p> <p>Dear Sir: — Your favour of the 1st was received in due course of mail. My friend, Mr Williams, will leave this on Tuesday or Wednesday morning, by steamboat line, and will call on you the afternoon of his arrival. Very respectfully, I remain,</p> <p>Henry Nixon.</p> <p>Philadelphia, May 'Uh, 1833.</p> <p>8. Sterret, Esq. — This will be handed you by my friend, Mr Williams, who will confer with you respecting your several communications. With great respect, I remain,</p> <p>Henry Nixon.</p> <p>The plaintiffs also gave in evidence the following Act of the State of Maryland: “ If any security of an executor or administrator shall conceive him or herself in danger of suffering from the suretyship, he may apply to the Orphans’ Court which granted the administration, and the said court may call upon the party to give counter security, to be approved of by the court. And if the party so called on, shall not, within a fixed reasonable time, give such counter security, the court may order the property remaining in the hands of such executor or administrator to be delivered up to such security.”</p> <p>The defendant moved for a nonsuit, on the following grounds, which was ordered by the court:</p> <p>1. Because the plaintiffs offered no consideration for the alleged promise on which this action was brought.</p> <p>2. Because the. alleged consideration was a past consideration.</p> <p>3. Because the alleged consideration was a bad consideration, and insufficient in law to support the alleged contract.</p> <p>4. Because the contract alleged being a Maryland contract, and the Statute of Frauds being in full fofce in that State, the lex loci contractus precluded the plaintiffs from proving any consideration not contained in the written memorandum produced.</p> <p>5. Because by the lex loci contractus, the alleged promise was void.</p> <p>6. Because by the lex: loci contractus, the consideration mentioned in the paper alleged to contain the promise was bad, and insufficient to support any contract.</p> <p>7. Because the evidence produced was insufficient to make out the case stated in the narr.</p> <p>Errors assigned:</p> <p>The court erred in entering judgment of nonsuit, because—</p> <p>1. There is a good continuing consideration stated in the written contract.</p> <p>2. The bond executed by the plaintiff, as surety for Morris, being referred to in the agreement of guaranty by Nixon, is to be taken with the guaranty, and a sufficient consideration can be gathered from them.’</p> <p>3. The contract is to be governed by the laws of Pennsylvania, where it was made, and the evidence extrinsic of the written agreement, shows a sufficient consideration for the contract.</p> <p>4. The contract was not within the provisions of the Statute of Frauds, in force in Maryland, and the extrinsic facts in evidence show a sufficient consideration.</p> <p>■ 5. It was in evidence, that by the laws of Maryland, Sterret, after signing the bond, and at the time Nixon signed the agreement of guaranty, could have called on Morris to furnish counter security, for his protection, or compelled him to resign the assets into Sterret’s hands, and that Sterret forbore that remedy in consideration of Nixon’s contract to indemnify him, and ever since has forborne, trusting to Nixon’s promise.</p>

The plaintiff declared against Wright as the guarantor of a contract made between George W. Delaway and the plaintiff. On the 8th of February 1833, Smyth & Delaway, by writing under seal,' agreed to enter into partnership for conducting the business of a marble yard under the firm of Delaway & Smyth.

This was assumpsit brought by Benjamin Tevis against John Hemphill & Mark Richards, to recover $125 for the use and occupation of the rear end of a lot on Broad street adjoining on the south ground belonging to Hemphill &.Richards, from the 1st of October 1837 to the 1st of October 1838.

<p>The defendants, a church, executed and delivered to the plaintiff a writing under seal, reciting that the plaintiff having loaned them a sum of money was “ entitled to receive payment of the same without interest from the sales of the following pews,” (enumerating them) — payment pro rata to be made when any sale was effected, and the purchase money received.</p> <p>Held, 1. That if the loan of money was cotemporaneous with the execution of the instrument, the plaintiff could not recover in debt on the instrument without averring a sale of the pews or a refusal to sell them by the defendants.</p> <p>2. But on a count in debt for money lent, the instrument may be treated as an acknowledgment of a debt previously contracted, and a pledge of a fund or of collateral security for its liquidation, and submitted to the jury.</p>

The plaintiffs claimed these articles as the property of George Shoemaker, deceased. The defendant claimed them under his mother, Susannah Brouse, late Susannah Shoemaker, and took possession of them after her death. It appeared in evidence that the articles were all the property of Susannah Brouse whilst she was a widow. She was afterwards married to the plaintiff’s intestate, who died the day after her. There was no issue of this second marriage.

<p>ERROR to the District Court for the city and county of Lancaster.</p> <p>This was an action of assumpsit brought by John Foltzagainst Edward B. Grubb and Clement B. Grubb, under the firm of E. & C. B. Grubb, to recover the amount of an account charged in his book against them, and also as appeared on the face of the book, against one Snyder, jointly, for meat sold and delivered at various times during the year 1839. The declaration was in indebitatus assumpsit, for goods, wares, and merchandises, sold and delivered by the plaintiff to Edward B. & Clement B. Grubb, with the following note at the bottom of it: “ Plaintiff’s claim is a balance due him on book account of #141.32, with interest from October 14th, 1839.” The defendants pleaded non assumpsit, upon which issue was taken by the plaintiff. On the trial the plaintiff produced his book of original entries, which he established by his oath, as also the account in it, charged in the manner already mentioned for meat sold and delivered at a boarding-house kept by Snyder at the iron-works of the defendants, which they carried on and worked during the time that the meat charged was delivered. The defendants then, in support of their plea, gave some evidence for the purpose of showing that although Snyder was employed by them to keep the boarding-house, yet he was to do it at his own expense, and to be reimbursed or compensated for doing so, by obtaining pay for boarding from the persons respectively whom he boarded, or from those at whose instance he furnished the boarding for them. To repel the effect of this evidence, the plaintiff gave evidence tending to show that the defendants were to furnish the meat and flour necessary to be used in keeping the boarding-house. Upon this evidence the cause went to the jury under the charge of the court, in which they were requested to charge “ that the book account, produced as evidence, on which the suit was founded and supported', was against Grubb and Snyder ; and the suit being brought, and the narr. filed against the Grubbs alone, the evidence therefore entirely failed to sustain the action.” The court seemed to think that it did not appear from the heading of the account, as the defendants contended it did, that the meat was charged as having been sold to the defendants and Snyder; but told the jury, even if the fact were so, that the defendants could only take advantage of it by a plea in abatement. In this direction it was alleged that the court erred. This was the only matter assigned for error.</p>

THIS was an action of account render brought in the District Court of the city and county of Philadelphia by Thomas M’Adam against Robert Orr, surviving administrator of John Hall, deceased.

<p>Certificate of loan issued in the year 1830, by an incorporated company, that there was due from them to A. or her assigns a certain sum, bearing an interest of 6 per cent, per annum, payable quarterly on certain days, the principal to be redeemable, in the option of the company, at any time after the 1st of January 1840; and further stating it was issued under a resolution of the company, and the holder will be entitled to convert the whole of said sum into shares of the capital stock of the company at any time previous to the 1st of January 1840. Held that it created an annuity coupled with a power to redeem after the 1st of January 1840, the company alone having the power after that period to determine when the loan shall be repaid, and that action will not lie to compel payment of the principal against the will of the company.</p>

This was a' feigned issue, directed by the Orphans’ Court, in which Sarah Towson was plaintiff, and Levi Bull and Samuel Shafer, executors of the last will and testament of Thomas Bull, deceased, defendants. Thomas Bull and another, guardians of the minor children of John Root, (of whom the plaintiff was one), in 1813 settled an account in the Orphans’ Court, showing a balance in their favour against the estate of John Root, which was duly confirmed.

THIS was an action of assumpsit brought by the executors of William Hamilton, deceased, against John Moore. This case was argued at Lancaster in May term 1817, and the following opinion, which states the, case, and in which Gibson, J., and Duncan, J., concurred, was delivered by