Volume 4 — Wharton's Pennsylvania Reports

<p>The provisions of the acts of 23rd of March 1826, and 10th of April, 1835, which authorise the committal of infants to the House of Refuge, under certain circumstances, and their detention there, without a previous trial by jury, are not unconstitutional.</p>

<p>hi .n action brought by the Trustees of a Company, incorporated for the purpose of [banking certain meadows, against one of the corporators, to recover the amount of a tax assessed upon him|for the support of the embankments, it was held, that one of the trustees, who was also a corporator, was not a competent witness to prove that a notice required by the act of incorporation to be given to the members to work out their assessments, before bringing suit to recover the tax, was given to the defendant. Where an act incorporating a company for the purpose of embanking certain meadows, directed that the expenses should be apportioned among the members, and that the trustees should call upon each member to work out his portion of the expense, and should any'member refuse to make payment, that the trustees should have power to sue for and recover the same; it was held, in a suit brought by the trustees against a corporator to recover his proportion of an assessment, 1st, That it was necessary for the plaintiffs to prove, that the defendant was called upon to work out his tax before they could recover. 2nd, That it was not necessary that such notice should be under the corporate seal, but that it might be by parol, if given by any known officer of the corporation. 3d, That the defendant was not to be considered as having waived or admitted notice by the circumstance of his not having stated the want of notice before referees and a justice of the peace on former hearings as an objection to a recovery against him.</p>

IN ERROR. Error to the Court of Common Pleas of Lehigh County. In the Court below Peter Beary brought an action of assumpsit against Lucas Haines, John Schaffer, and Adam Haines. The sheriff returned “ summoned,” as to John Schaffer and Adam Haines, and “ nihil” as to Lucas Haines. The plaintiff declared on a promissory note for $700, executed by the three defendants, dated December 7th, 1835, and payable to himself or bearer on the 1st of April, 1837.

<p>Husband and wife being seized, in right of the wife, of a tract of land, conveyed the sama by deed, duly and separately acknowledged, to A., one of the children, in fee. On the same day, A. executed a bond to the grantors, with condition to pay them a certain sum annually during their lives, and the life of the survivor of them, and at the decease of the survivor, to pay a certain principal sum to B., C. and D., other descendants of the husband and wife. The wife survived her husband; and after his_ death, cancelled the bond, and executed an instrument reciting that the bond was given to her while she was a married woman, and incapable in law of making a contract, and declaring her dissent thereto. A. then, at her request, gave another bond in the same penalty, with condition to pay her the same annuity, and after her death to pay the principal to E. another of her children. In an action brought by C. and D. against A. after her death, to recover their share of the principal of the first bond, it was held, that the act of the mother in cancelling the first bond, did not operate to divest the right of the plaintiffs in the principal sum.</p>

<p>1. The mere circumstance of a father being indebted at the time of making a voluntary conveyance to a child, does not render such conveyance fraudulent and void, under the stat. 13 Eliz., if he had other properly at the time sufficient beyond a doubt to pay his debts."</p> <p>2. In ejectment, where the question is of the validity of a voluntary conveyance in reference to the debts of the grantor, the jury, in estimating the value of the property, may be guided by parol evidence given on the trial, and are not bound by a sheriff’s sale of the same property several years after the conveyance.</p> <p>3. A voluntary conveyance was made to A. by his father. Afterwards a judgment was obtained by B., another son, against the father. . After the death of the father a motion was made on the part of the heirs to open the judgment and let them into a defence, which was denied. The land contained in the voluntary deed was levied upon by virtue of an execution upon a judgment for a debt due before the conveyance, and sold by the sheriff to B. An application to the Court had previously been made on the part of A., to set aside the writ of venditioni exponas in • this case: In ejectment by A. against B. it was held, that notwithstanding these proceedings, it was competent for A. to go into evidence to prove that no debt was due to B. by the father at the period of the judgment.</p>

IN ERROR. Error to the Court of Common Pleas of Chester County. Frederick Hollman brought an action of trespass in the Court below against Lewis Orner, a constable, to recover damages for taking a horse, the property of the plaintiff, which had been levied upon by the defendant, by virtue of an execution against one Massey.

<p>An act of assembly incorporating a rail-road company, authorised them to enter upon the land of private persons, for the purpose of laying out the road, and to take possession of so much as should be necessary for constructing the road. It also declared that if the parties could not agree as to the value of the land, &e., the Court of Common Pleas should appoint twelve persons to value the same, who should take an oath, &c., justly and impartially to value the same, taking into consideration the advantages as well as the disadvantages arising from the road, and who should make a report within a certain time. By another section it was made the duty of the company to provide and keep in repair a suitable passage across the road whenever the rail-road should intersect a farm. On a petition praying the Court to appoint persons to assess the damage sustained by the petitioner, in consequence of the occupation of a part of his land by the rail-road, it was held, — (1) That it was not necessary for .the jury to return a valuation of the land occupied, nor of the materials taken in the construction of the road, or of the sum allowed for other injuries. (2) That it was not necessary for them to state the quantity of land taken for the road, nor to give a description of the same. (3) That the jury had no right to include any claims for bridges; and therefore that the report was bad in assessing damages to the petitioner for a bridge for the use of the premises.</p>

IN’ ERROR. Error to the Court of Common Pleas of Northampton County. Adam Daniel, the plaintiff in error, brought suit on the 30th of March, 1833, before John Hartzell, Esq., a justice of the peace, against one Jacob Luch, and obtained a judgment therein on the 5th of April following, for $65.

<p>1. To render an insurer of goods liable for damage done to them in the course of a voyage, it is necessary that some evidence should be given of such extraordinary disaster or injury in the course of the voyage, as would occasion damage in a seaworthy vessel.</p> <p>2. Where a policy is for account of whom it may concern, although no express evidence is given on the trial that the person making the insurance had any authority from the owner of the goods to enter into the contract, yet the jury may presume an adoption and ratification of it hy such owner, if it be for his benefit.</p> <p>3. Although a judge may be wrong in his charge to the jury, even in stating to them that there was no evidence upon a particular point, when in fact there was some evidence, yet if the jury find against the charge, a new trial will be granted.</p>

<p>This was an action of covenant, brought by John M. De Bollé, for the use of his assignees, William Vineyard and Joseph Flemming, against The Insurance Company of the State of Pennsylvania, upon a policy of insurance, dated the 15th day of December, 1827, between the defendants of the one part, and Joseph Femming, “ as well in his own name, as for and in the name and names of all and every other person and persons to whom the property thereby insured, did, might, or should appertain,” of the other part,- whereby the defendants insured the sum of $2400 on “ one box of jewelry,” on board a vessel called the Nueva Eloisa, on a voyage from Philadelphia to the Havanna.</p> <p>The declaration averred that the insurance was effected by Flemming, as agent of the plaintiff. The defendants pleaded non infregerunt, conventionem, with leave to give the special matter in evidence.</p> <p>The cause was tried on the 27th of November, 1838, at a Nisi Prius held in Philadelphia by Serjeant, J. The plaintiff’s counsel gave in evidence the policy of insurance, and proved by a witness, that a certain quantity of jewelry, intended for the South American market, was bought of him by the plaintiff', De Bollé, in the autumn or winter of 1827, and packed by the witness in a box., The depositions of witnesses in the Havanna, proving that the jewelry was damaged by sea-water were also read.</p> <p>The defendant’s counsel gave in evidence the order for insurance, signed by Joseph Flemming, dated the 15th of December, 1827, directing the insurance of 12400 on a box of jewelry, by the Spanish schooner Nueva Eloisa, at and from Philadelphia to Havanna. Evidence was also given to show that the box of jewelry had been stowed in an improper and unsuitable part of the vessel.</p> <p>Judge Sergeant charged the jury in substance as follows:</p> <p>“When a policy is made in the name of another person, as in this case, it is necessary for the plaintiff to show not only the policy, and that he was the owner of certain jewelry shipped on board the vessel, but he is bound to show that he had an interest in that policy. The plaintiff here has properly averred in the declaration, that Flemming, in effecting this policy, dic[ it as his agent; and this is a material fact which must be proved. Slight evidence would be sufficient to enable the jury to infer this fact: but still there must be some evidence; for without any evidence at all, it would be error to submit the fact to the jury. There must be proof, ■ either of some previous authority, or of some cotemporary connection between the parties, from which an authority can be inferred, or something to show that the party effecting the policy in his own name intended to embrace the interest of the person by whom the shipment was made. If that is the case, and the party interested afterwards ratifies the act thus done for'his benefit, it will be sufficient. But without any evidence whatever of such authority, express or implied, or of such intention,' or of any correspondence, intercourse, or connection between the parties, or duty or obligation on the part of Flemming, from which an authority could be inferred, to effect this policy for the plaintiff, the .rule of law is, that the owner cannot recover. If he could, it would open a door to the practice of fraud: for the person thus effecting a policy in his own name,, might, at a subsequent time, and after a loss has been incurred, transfer the right in it to such person as happened to have sustained the loss, though never known or contemplated when the policy was'made. In this case I have looked at the evidence with attention, and I am not able to find any evidence whatever from which the interest of the plaintiff in the policy can be inferred. There is nothing bearing on this point, but the order by Flemming; the policy in Flemming’s name; the ownership of the jewelry by Dé Bollé;' and the adoption of the policy a considerable time afterwards by De Bollé. In my opinion the rule of law requires something more: and I am of opinion, that in the absenee of any such evidence the defendant is entitled to a verdi'ct.”</p> <p>The jury under the direction of the Court, found a verdict for the defendants.</p> <p>The plaintiff moved for a new trial, and filed the following reasons.</p> <p>“ I. This was an action of covenant on a policy of insurance. The policy was in the usual terms. It declared, that it had been made between the defendants of the one part, and Joseph Flemming as well in his own name as for and in the name and names of all and every other person or persons to whom the property thereby insured, did, might or should appertain, in part or in the whole, of the other part, and ivitnessed that the defendants caused the said Joseph Flemming and every of them to be insured in the sum of two thousand four hundred dollars. The policy, in addition to the usual contents, expressly set forth, that the insurance was “ on one box jewelry;” and there was no other jewelry on board, yet, the judge charged the jury, that the verdict must be for the defendants, because no evidence had been given, of express authority from the plaintiff, (in whom the interest was alleged to be by the declaration) to Joseph Flemming, by whom the insurance was effected, to effect the same.</p> <p>2. The judge gave it as law to the jury, that the plaintiff could not recover, without having proved by Joseph Flemming or otherwise that he acted as the agent of the plaintiff in effecting the insurance, although the suit was brought for the use of Joseph Flemming himself — and he was incompetent by reason of interest to give evidence.</p> <p>3. The whole merits of the case were with the plaintiff; and the jury gave their verdict for the defendants, merely by direction of the Court, and they so declared; when the fact should have been left to the jury whether the goods on which the loss was sustained were the property of the plaintiff, and were contemplated as the subject of insurance, at the time of giving the order for insurance and of effecting the policy.</p> <p>4. The Court rejected the bill of lading offered by the plaintiff as incompetent evidence.</p> <p>5. The Court rejected, as incompetent, the various documents which had been submitted, as preliminary proofs to the defendants, although no objection had been taken to them by the defendants, when they wei’e exhibited and returned.</p> <p>6. The verdict is against law and evidence.”</p>

<p>Under the act of the 9th of April, 1833, it is not sufficient to relieve a defendant from the payment of costs which have accrued after an appeal by him from the judgment of a justice of the peace that he should have made a tender of the amount which he admitted to be due, with the costs that had accrued. It is necessary that he should have offered to give a judgment for such amount.</p>

<p>1. In an action on an award made under an alleged parol submission, one of the arbitrators was called by the plaintiff, and proved the submission and award. Held, that it was competent for the defendant to ask him, on cross-examination, and without first opening his case, whether he and the other arbitrator had not previously decided that they could make no award, and informed the parties of that decision.</p> <p>2. Where an arbitrator has been called by the plaintiff to prove a parol submission and an award made under it, the defendant may prove by him, 1st, That soon after the submission, a meeting of the arbitrators was held, and upon the facts and statements then before them, they decided that they could make no award, and so informed the parties. 2nd. That twelve or eighteen months afterwards, without any new submission or notice to the defendant, the arbitrators met and made the supposed award, not on the facts and statements communicated by the parties, but upon circumstances which had happened after the first meeting, and after the abandonment of the reference.</p>

<p>Where an act of the legislature authorised the widening of a certain street in the District of Southwark, and provided that compensation should be made to the owners of property for damages that they might sustain thereby, by proceeding before a jury in the Court of Quarter Sessions, it was held, that an eviction of the plaintiff, by authority of the district for the purpose of widening the street, was not a breach of a covenant for quiet enjoyment in a lease of the premises, made after the passage of the act of assembly.</p>

<p>1. In assumpsit the plaintiff declared for .lumber and other' materials furnished at the reguest of the!defendant, for a certain building (describing it 0 and averred in the usual terms the defendant’s promise to pay. No claim had been filed. It appeared on the trial that the materials had been furnished more than six months before, but within ttvo years from the commencement of the action. The materials were charged in the plaintiff’s books to the original owners of the lot, not to the defendant directly. There ■was some evidence to show that the defendant appeared as owner, and gave orders for the lumber; The judge who tried the cause charged the jury, that it was not necessary to support the action that a claim should have been filed within the six months. Held, that though this was a mistake of the law, yet as the judge also charged upon a point made by the defendant, that it was a question of fact for the jury who was the'original debtor, and that the action ought to be brought against, the original debtor, there was no cause for reversing the judgment.</p> <p>2. In assumpsit for lumber fiirnished for a,certaia building at the request of the defendant, the plaintiff’s buoks of original entries were offered in evidence. The books contained several'entries of lumber, furnished for the building; one of them charged to the defendant ón account of A. and B. (the original owners of the lot); others charged A. and B. for lumber “ got by” the ‘ defendant, &c. 1 Evidence was given to show that the defendant had ordered the lumber in question. Held, that the entries were admissible to show the amount and price of the articles furnished.</p>

APPEAL. This was an .appeal from a decree of the Orphans’ Court for the County of Philadelphia, in the matter of the settlement of the accounts of Samuel Grant and Henry Seaton, executors of the will of William Stevenson, late of the City of Philadelphia, deceased. William Stevenson, the testator, died on the 14th day of December, 1832, having made a will, dated the 1st of December, 1829, and twelve codicils, the last of which was dated the 5th of December, 1832.

<p>1. A bank which receives a note for collection, and when it is overdue places it in the hands of a notary in the usual course, is not liable for the neglect of the notary to give notice to an endorser.</p> <p>2. A note had been deposited by the holder in a bank fer collection. When it fell due and remained unpaid, it was placed, as usual, in the hands of the Bank’s notary, whose clerk called at the store of G. the last endorser, to inquire for the place of residence of C., the first endorser. The wife óf G., who was in the store, told the clerk that C. resided at a particular place, which was in fact the place of business ofC.’s son. Notice was left at that place, and G. was informed of his wife’s direction as t.o the place of residence of C. The note was renewed by agreement between the parties, and when it again fell due the notary’s clerk again left notice at the place of business of C.’s son, supposing that it was the store of C.; by which mistake C. was discharged. Held, that neither the Bank, nor its agent, the notary, was liable to the holder of the note for the consequences of the omission to give notice to the endorser.</p>

<p>1. The plaintiffs agreed jointly to sell and convey to the defendant all their right, title and interest in three certain lots of ground. In an action for a breach of the contract, it appeared that they were separately seized of the three lots. Held, that this was not a sufficient objection to their recovery in the action.</p> <p>2. The plaintiffs, to prove title in themselves, gave in evidence deeds to them from A. about four months and a half before the date of the agreemént, and proved that they were in actual possession. They also proved that they placed the deeds in the defendant’s possession, who kept them some time, and refused to return them. Held, that the defendant had at least waived his right to call for evidence of title in A.</p> <p>3. The plaintiffs had tendered to the defendant deeds executed by themselves which contained erasures. Held, that as the erasures were proved on the trial to have been made before execution, and the fact was so stated on the face of the deeds, this was not a sufficient objection.</p> <p>4. The deeds from A. to the plaintiffs, which were admitted as proof of title in the plaintiffs, stated the amount of the consideration paid by the plaintiffs to A. Held, that this was prima facie evidence to go to the jury of the value of the property.</p>

<p>A testator bequeathed as follows : — “Item. What moneys may be received by my executors from W. F.’s estate towards the payment of a debt of $10,000, which he owes me, it is my will, shall be invested by my executors in trust for the sole use and benefit of my grand-daughter M. F.; but if she, the said M. F., should die before me, then it is my will and I do direct that the same shall be paid to her daughter.” M. F. survived the testator, and also survived her husband W. F. and married a second time. Held, that the trust for her separate use ceased on her discoverture, and was not revived upon her second marriage; and, therefore, that the trustees, under an assignment made by her and her second husband, were entitled to recover the fund from the trustee appointed under the will.</p>

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought by Silas G. Levering, administrator of the goods, &c., of Joseph Rittenhouse, deceased, against Nicholas Rittenhouse, and Jacob D. Rittenhouse, administrators of the goods, &c., of Martin Rittenhouse, deceased.

IN ERROR. On a writ of error to the Court of Common Pleas of Delaware County, it appeared, that Michael Wilt brought an action of trespass vi et armis, in the Court of Common Pleas of Montgomery County, against The Philadelphia, Germantown and Norristown Rail Road Company, in which the plaintiff declared that the defendants, “ on the first day of February, a. d. 1836, at the county aforesaid, with force and arms, &c., with their locomotive steam-engine, in and upon the wagon…

IN ERROR. Error to the District Court for the City and County of Philadelphia. On the return of the record, it appeared that an action on the case was brought in that Court to March term, 1837, in the names of John Sanders, John Sexton, and Howell Hopkins, trustees of the Kensington Savings Institution, against Benjamin R. Bacon.

<p>1. The English rule that in the case of an absent person, of whom no tidings are received, the presumption of the continuance of life ceases at the end of seven years, is adopted in this state.</p> <p>2. But the presumption of death, as a limitation of the presumption of life, must he taken to run exclusively from the termination of the prescribed period; so that the jury are bound to presume that the person lived throughout the whole period of seven years, unless there are circumstances in evidence to quicken the time.</p> <p>3. The circumstances which are sufficient to take a case out of the operation of the rule, must be such as show that the individual was at some particular date, in contact with a specific peril.</p> <p>4. Mere general perils are not sufficient; and, therefore, the departure of a person for the Spanish Main, in or about the year 1792, without any account of him ever having been received down to the year 1837, was held not to be sufficient to authorise a direction for the, jury that they might infer his death to have taken place in or before 1797.</p> <p>5. It is not error in a judge to tell a jury that a witness was “ a very willing witness,” and that “ very little confidence was to be‘rplaced in her testimonynor to remark upon the strength or absence of evidence, or to suggest presumptions arising from the relationship and conduct of one of the parties.</p> <p>6. It seems that a party may except to a charge generally, and is not bound to state or specify at the time, the particular parts of the charge objected to.</p>

IN ERROR. This case came before the Court on a writ of error to the Court of Common Pleas of the City and County of Philadelphia, to which Court an issue had been directed by the Orphans’ Court for the County of Philadelphia, to determine at what time the death of one Francis Bradley took place. The issue was tried on the 7th of May, 1835, before King, President, who charged the jury, “that the question of presumption was a question of fact for the jury to find.

APPEAL. This was an appeal taken by the commissioners of the District of Spring Garden, in the county of Philadelphia, from a decree of the District Court for the City and County of Philadelphia, in the matter of the distribution of the proceeds of a sheriff’s sale of certain real estate, sold by virtue of a writ of levari facias in an action brought in that Court by Alexander M‘Causland against Thomas George Leuffer.

<p>1. Under the acts of assembly of 11th March, 1836,14th June, 1836, and 16th June, 1836, the Courts of Common Pleas have no jurisdiction over trusts created by will and vested in executors or administrators, whenever such executors and administrators are amenable to the Orphans’ Court.</p> <p>2. But where a petition was presented to the Common Pleas, in November, 1835, by a female legatee, for whose benefit a sum of money had been bequeathed to the executor, and the Court decided that it had no jurisdiction, and an act of assembly was passed, which continued in force former acts, so far as might be necessary to carry into full effect proceedings not consummated at the times when the said acts came into operation, after which a new petition was presented by the same legatee, and the Court of Common Pleas dismissed the trustee, the Supreme Court on appeal affirmed the decree.</p>

<p>Under the amended Constitution of Pennsylvania, the Governor of the state, inaugurated on the third Tuesday in January, 1839, had authority to appoint a Recorder of Deeds, in place of a person appointed on the 10th of January, 1839Jo fill a vacancy in that office.</p>

IN ERROR. On a writ of error to the District Court of the City and County of Philadelphia, it appeared that James Baynes brought an action on the case in that Court to June term, 1836, against Joseph Hand, to recover from the defendant the value of certain hides shipped on board a vessel called the Neptune, belonging to the defendant, and intended'to be carried to Baltimore by the way of the Chesapeake and Delaware Canal, but which were lost at sea.

IN ERROR. This was a writ of error to the Court of Common Pleas for the City and County of Philadelphia, to remove the record of an action brought by The Board of Health of the City of Philadelphia, &c. against Joseph Hand. ' • The suit came before the Court of Common Pleas by appeal from the judgment of an alderman ; and a case was stated in the nature of a special verdict for the opinion of the Court below, as follows. “ The plaintiffs claim in this action seven dollars…

<p>1. The date of the sheriff’s sale is the time to which all liens, entitled to payment out of the proceeds, are to be computed.</p> <p>S. Therefore, where a lot subject to a ground-rent is sold at a sheriff’s sale, the ground-rent accruing after the date of the sale, is not to be paid out of the proceeds, but must be paid by the purchaser, although he may not receive his deed for a considerable period of time in consequence of the pendency of a motion to set aside the sale.</p>

IN ERROR. Writ of error to the District Court for the City and County of Philadelphia. David Stevens brought an action on the case, to March term, 1837, of that Court, against William P. Creed, upon a promissory note drawn by one Northop, and endorsed by the defendant; and on the 5th of April, 1837, in pursuance of the act of assembly, filed a copy of the promissory note on which the-action was brought; and which was as follows :— “ Dollars, 160. Philada. Feb. 24, 1837.

<p>1. In replevin the defendant avowed for three quarters’ rent, due on the 15th of August, 1833. The plaintiff produced on the trial a check drawn by his son, payable to the defendant, or order, dated the 15th of February, 1833, for a sum equal to one quarter’s rent, and claimed the benefit of a presumption that the preceding quarter’s rent was paid: The judge left the fact to the jury, with a direction, that if the eheck was a payment of the quarter’s rent due at its date, the plaintiff was entitled to the benefit of the presumption: The jury found for the avowant, and the Court refused to disturb the verdict.</p> <p>2. In replevin, evidence that the premises were untenantable, for want of proper and necessary repairs, and that the landlord had promised to have the premises put in proper order, but failed to do so, is not admissible by wajr of set-off, unless such promise to repair formed part of the consideration for the rent in the lease or original contract.</p> <p>3. Where a tenant remains in possession of the demised premises after the expiration of the term, withhut any new agreement, the presumption of law is, that he holds the premises subject to ail such covenants contained in the original lease, as are applicable to his present situation.</p>

An action of ejectment was brought in this Court by Shadraeh Dawson against Michael M‘Gill, to recover an undivided fifth part of a certain lot of ground situate in the Northern Liberties of the city of Philadelphia. The case was tried before Rogers, J., at a Court of Nisi Prius held at Philadelphia in February, 1838. Both parties claimed under one Joseph Fricker, who died intestate, leaving five children, viz. John, Nicholas, Catharine, Elizabeth and George.

IN ERROR. On a writ of error to the District Court for the City and County of Philadelphia, it appeared that Margaret Hutchinson brought an action on the case in that Court to June term, 1830, against William R. Rodman.

<p>In an action brought in the District Court for the city and County of Philadelphia, by the payee of a note for $136, against the maker, the latter filed an affidavit of defence, setting forth that at the time the note was given an agreement was made between them, that if the defendant should within two weeks pay him the sum of $110, the note should be given up; that the original note for which this was given was an accommodation note, for which the defendant, had never received any value; and that he, the defendant, tendered the said amount at the time appointed, and is still ready to pay the same: Held, that the alleged agreement was without consideration, and that the District Court was right in entering judgment for want of a sufficient affidavit of defence.</p>

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought in that Court to March term, 1837, by George W. Geisse and Lewis Geisse, trading under the firm of George W. Geisse & Co. against Henry M. Walker.

<p>This was an action of ejectment brought by Henry Sailor agáinst Peter Hértzog, George S. Geyer and Edward Ducray, to recover possession of a messuage and lot of ground situate on the east side of Sterling alley, in the city of Philadelphia, containing in ' front thirty-four feet six- inches, and in depth forty-seven feet.</p> <p>On the trial before Mr. Justice Rogers, at a Court of Nisi Prius held in Philadelphia, on the 11th of December, 1836, it appeared that the plaintiff claimed title under one William Henderson, who, it was admitted, was at one time the owner of the property; and to maintain the issue on his part the plaintiff gave in evidence an exemplification of a deed from William Henderson and wife to'George Weiss, dated the 7th of June, 1788, "acknowledged on the 10th, and recorded on the 11th of the same month, for the premises in question, for'the consideration of £500 ; an exemplification of a deed from George Wéiss to Jacob Sailor, dated the 5th of July, 1788, acknowletlged on the 12th of January, 1789, and recorded on the 27th of May following, for the premises, for the consideration of £500, and a deed from J acob Sailor with Elizabeth his wife to Henry Sailor, dated the 12th of August, 1817, acknowledged and recorded on the same day,’whereby the grantor in consideration of ten dollars, conveyed all his real estate to the grantee, his heirs and assigns, in trust for himself and his wife, for their joint lives, and the life of the survivor, with remainder to his children in fee.</p> <p>Parol evidence was then given on the part of the plaintiff, in substance as follows.</p> <p>Catharine Craigen, a sister of Jacob Sailor, testified that her husband received rent for the property, and remitted it to Jacob Sailor, who then lived in the western country. It was two or three years before 1792, that her husband began to collect the rent, and it was in 1797 that he last received it. About 1798 they found strangers in possession. In 1815, Jacob Sailor gave a power of attorney to Isaac Young, her son-in-law to look after the property, and in the course of that year she went with her to the residence of a Mr. Ley, who was in possession of the premises, and who acknowledged the title of Sailor, and offered to buy his right.</p> <p>Isaac Young testified, that in 1815 Jacob Sailor gave him a power of attorney, in pursuance of which he called on Daniel Ley, produced the power, and a copy (which he had obtained from the recorder’s office,) of the deed of Weiss to Sailor. Ley admitted the validity of Sailor’s title, said that he had not paid the whole of the purchase-money to Peterman, from whom he purchased, and was willing to compromise. He requested the witness to send Sailor to him. In the month of December, 1815, the parties met at a tavern, when Ley offered Sailor a certain sum for the property, which Sailor declined.</p> <p>Henry Kalback testified, that about twenty years previously, he called at the premises with Sailor, who produced his deeds to Ley, and said the property belonged to him. Ley said that he had bought the property of another. About two years afterwards, they called on Ley again, who admitted that Sailor’s title was the best, and offered him a certain sum for a conveyance. Sailor asked a higher-price. Several other interviews took place, in which Ley admitted the opposite title, and offered money.</p> <p>The plaintiff here closed his case, and the defendants gave in er idence the following deeds and other documents.</p> <p>1st. The original of the deed of Henderson to Weiss, of which the plaintiff gave in evidence the official copy.</p> <p>2nd. 19th January, 1789. George Weiss and wife to William Henderson, for a messuage and lot of ground, thirty-four and a half feet by forty-seven feet — the consideration being a reassignment of certain bonds, and five shillings in money. This deed was recorded on the 24th of November, 1789.</p> <p>3rd. 2nd February, 1789. William Henderson and wife to Jacob Ettwein, for a messuage and lot of ground fifty-eight and a half feet by forty-seven feet: recorded on the 24th of.November, 1789.</p> <p>4th. 16th February, 1789. Jacob Ettwein and wife to John Peters, for the same premises, recorded 14th December, 1789.</p> <p>5th. 28th November, 1791. Will of John Peters, whereby he empowered his executors to sell his real estate.</p> <p>6th. 15th April, 1800. The executors of John Peters to Joseph Peters, for the same premises. This deed was acknowledged on the 5th of May, 1804, and recorded on the 18th of October, 1804.</p> <p>7th. 29th November, 1809. Joseph Peters to Daniel Ley, for the same premises: recorded 18th April, 1816.</p> <p>8th. 3rd February, 1818. Daniel Ley to Thomas Reeves and others, being a general assignment of his property for the benefit of creditors.</p> <p>9th. 26th June, 1818. Thomas Reeves and others to Peter Hertzog and Tobias Beehler, for the premises: recorded 22d April, 1819.</p> <p>10th. 28th May, 1822. Tobias Beehler and wife to Peter Hertzog, for his moiety of the premises.</p> <p>11th. 1st August, 1827. Peter Hertzog to George S. Geyer, for the premises.</p> <p>12th. 29th November, 1809. Mortgage by Daniel Ley to Joseph Peters of the premises to secure payment of ií¡1688 88 : satisfaction entered 21st January, 1825.</p> <p>13th. 18th April, 1816. Mortgage Daniel Ley to Thomas S. Field and John Snyder, guardians, to secure payment of $1600. Satisfaction entered on the 2nd of July, 1818.</p> <p>The defendants then went into parol evidence.</p> <p>John Patterson testified, that Ley' & Hupfeldt occupied the premises as sugar refiners in 1802 and 3, and that he purchased occasionally of them from that time to 1817, when the witness left the city, and that on his return in 1822 he found Peter Plertzog in possession.</p> <p>Conrad Wile testified that he had known the property fifty years. The first persons he knew to be in possession were the Peters’ family in 1793. After that a man named Stammers occupied it and continued there until 1798, when the witness removed from the neighbourhood. This witness produced the assessment boohs of the city of Philadelphia, from which it appeared, that from the years 1791 to 1797, inclusive, the property was assessed in the name of Jacob Peters; from 1798 to 1801, inclusive, in the name of George Peters’s ■estate; in 1802, 3 and 4, in the name of Daniel Ley, for George Peters’s estate; and from 1805 to 1811, in the names of Ley & Hupfeldt.</p> <p>Lewis EppeJsheimer testified, that he knew one Jacob Sailor, and first knew him about 1806 or 7, and supposed him to be about the same age with himself, the witness then being past seventy. That this Sailor told him that he took the benefit of the insolvent law about 1808.</p> <p>John Greiner testified, that he had known the property more than fifty years. The first person he recollected in possession was John Moore. Then John Peters. Jacob Peters his son succeeded him. Then Daniel Ley. Jacob Peters was in possession in 1793, and died in the fever of that year. After his death the witness thought that the building was shut up for some time. The boys pelted it with stones as a haunted house.</p> <p>Edward Penington testified, that Daniel Ley went into the sugar house in Sterling alley, about 1800 or 1801, and was in business there seven, eight, or nine years.</p> <p>John Maybin testified, that the Peters family were in possession of the property in the year 1793, and it remained in their possession until it was sold by the executors of John Peters at public sale. The witness was one of the executors, and never heard of Sailor, or of his claim until recently.</p> <p>The defendants also gave in evidence the depositions of Isaac Young and Catharine Craigen, taken on a trial before arbitrators, for the purpose of contradicting their testimony on this trial; and also .produced the petition of Jacob -Sailor for the benefit of the insolvent laws in 1807.</p> <p>Evidence was also given with the,view of discrediting the testimony of Henry Kalback.</p> <p>Frederick Beates, a scrivener, 'testified that he drew the deed from the-executors of John Peters to Joseph Peters, and that from Joseph Peters to Daniel Ley; that he had the chain of title down to Joseph Peters. He was not in the practice of searching for conveyances where there was a chain of title; but searched for mortgages and judgments.</p> <p>The plaintiff then gave rebutting testimony to show that the Jacob Sailor who applied for the benefit of the insolvent laws in 1817, was not the plaintiff in this suit, but a nephew who bore the same name.</p> <p>The judge charged the jury in substance as follows.</p> <p>“ This is an action of ejectment to recover the possession of a sugar-house, formerly a bake-house, with a lot, being part of a larger lot, in breadth 34| feet, and in depth 47 feet, situate in Sterling Alley, between Sassafras and Cherry streets. The plaintiff claims under William Henderson, who they admit was the rightful owner of the property in dispute. The plaintiff who must recover, by the strength of his own title, and not by the weakness of his adversary, deduces his. title in the following manner. On the 7th June, 1788, William Henderson conveys the property by deed to George Weiss, for the consideration of £500.. This deed was acknowledged on the 10th June, 1788, and was duly recorded on the 11th June, 1788. On the 5th July, 1788, George Weiss conveys the property to Jacob Sailor for the same consideration, viz. £500. This deed was recorded on the 27th May, 1789, acknowledged 12th Jan. 1789. And on the 12th August, 1817, Jacob Sailor and wife, for certain purposes therein mentioned, and for the consideration of ten dollars, conveyed the property to the plaintiff, Henry Sailor. This deed was acknowledged and recorded the same day, viz. 12th Aug. 1817. This vests a complete title in the plaintiff, unless the defendants protect themselves by some of the various grounds of defence which they have taken.</p> <p>The defendants have presented their case to you under four different aspects.</p> <p>1. They contend that the plaintiff cannot recover, because of fraud.</p> <p>2. Because George Weiss re-conveyed the property to William Henderson, and Henderson conveyed to Ettwein before the deed made by Weiss to Jacob Sailor was recorded.</p> <p>3. Because Jacob Sailor took the benefit of the law for the relief of insolvents, before he conveyed the property to the plaintiff, Henry Sailor-</p> <p>And 4th. They contend that they are protected by the statute of' limitation.</p> <p>These points, it is believed, will embrace the whole case ; and I will now proceed to consider each in their order.</p> <p>And first, as to the alleged fraud.</p> <p>The defendants contend, that there was fraud in the deed from William Henderson, of the 7th June, 1788, of which Jacob Sailor had notice. And if this be so, the plaintiff cannot recover. But of this the defendants should furnish some proof, for fraud is not presumed. There must be something more than mere assertion. The defendants must'not only prové that George Weiss defrauded William Henderson, but they must likewise show, that Jacob Sailor participated in the fraud,1 or that he was aware of the fraud, before he purchased from George Weiss.' An innocent purchaser of the legal title, without notice of trust or fraud, is peculiarly protected in equity, and a Conrt of Chancery will not lend its aid to enforce a claim for the land against him'. -For although the sale may be-fraudulent and void,- as respects the purchaser because of his haying been a party to the fraud, yet, as to a subsequent and innocent purchaser from him, the title will be good. But you will inquire, whether there is any evidence from which you can "infer fraud, as between the original parties, William Henderson and George Weiss. But the defendants must not only satisfy you that there was the fraud, with which they charge George Weiss, (of which I cannot perceive any proof,) but they must also show that Jacob Sailor either participated in the fraud, or that he had notice of the fraud before the 5th July, 1788, when George Weiss conveyed him the property. They also contend, that thei'e was fraud-in the deed from George Weiss to Jacob Sailor. For proof of this charge/ they rely on- the fact that Weiss’s wife did not execute the deed, and because Sailor has not produced the original deed, but a copy; a'nd because Sailor neglected to put his deed on' record, until May, 1789. That the' presumption is the deed wás cancelled. Although, you' are the undoubted judges of the facts of the cause, I think it my duty to say, that in the opinion of the. Court,' there is not such proof of fraud, as would justify a finding for the defendant on this ground. S’raud should not be shown by inference merely, but there should be positive proof of fraud; or such circumstances should be shown as usually accompany fraud.</p> <p>2d. The defendants say the plaintiff cannot recover, because George Weiss re-conveyed the property to William Henderson, and Henderson made a deed to-Ettwein before Jacob Sailor’s deed was recorded. In order to understand this point, you must recollect that George Weiss re-conveyed the property to William Henderson on the 19th January, 1789, and Henderson conveyed to Ettwein on the 2d February, 1789 ; that the deed of George Weiss to Jacob Sailor, was dated the 5th July, 1788, and was not recorded until the 29th May, 1789, nine months after its date, and eight months after Ettwein’s deed, and after the re-conveyance from Weiss to Henderson. Now the defendants contend, that they stand in the situation of a bonctrfide purchaser without notice of the plaintiff’s title. And if they do, it shows such an outstanding title in the defendants, as is sufficient to defeat the plaintiff’s claim. - The acts of assembly, make it necessary for a person to have his deed recorded within six months, otherwise it is void against a subsequent purchaser, bona ■fide, without notice, under the same title. That is to say, if a man takes a deed v for a piece of property, and does nothing more, a person who purchases the property from the original owner, without any notice of the prior sale, acquires a good title. But if he has notice, he acquires no title, although the other neglects to put his deed on record. If, therefore, William Henderson, on the 19th January, 1789, and Ettwein, on the 2d February, 1789, had notice of the sale made by Weiss to Sailor, of the 5th July, 1788, they acquired no title as against Sailor, on account of his failure to record his deed. Notice; is of tWo kinds.-! — 1. Actual, and'2. Constructive notice. It will be your province'to inquire, under the direction of the Court, whether Henderson and Ettwein had either actual or constructive notice. Had they actual notice, that is to say, did Henderson and Ettwein know, at the respective time when they purchased, that George Weiss had sold the property previously to Jacob Sailor t ■ The defendants charged George Weiss and Jacob Sailor with a' combination to defraud Henderson, — and it will be for you to say, whether there is not at least as much evidence to show that it was the intention of Henderson and Weiss to defraud Sailor. It is for you to determine from the evidence, 6n which I would not wish to be understood as expressing an opinion, whether Henderson and Ettwein knew that Weiss had conveyed all his interest in the premises previously to Sailor. The plaintiff contends that it is sufficient ' that the deed from Weiss to Sailor, was recorded viz. on the27th May, 1789, before the deed from Henderson to Ettewin was recorded viz. 24th November, 1789.. The Court instructs you, that the law is not as the plaintiff’s -counsel contend.' ' It is the desire of the Court to take the opinion of the jury on the fact. The point will be reserved, and, if necessary, will be determined by the Supreme Court. The question is, as above stated, whether Henderson had notice of the deed from Weiss to Sailor, on the 19th January, 1789, and whether. Ettwein had notice on the 2d February, 1789. . The' plaintiff further contends, that the recording act of 1775, does not make void an unrecorded deed,' as against a subsequent purchaser, under a title totally unconnected with that deed, but only as against a purchaser under the same title. And this, is undoubtedly the law. But do the defendants claim under a title totally unconnected with" the deed, under which the plaintiff claims. > The Court instructs-you, that they do not. Both parties claim under the same, title. And if Henderson re-purchased the property of Weiss, or Ettwein purchased without notice of Sailor’s title, it divests the property of Sailor,and the plaintiff cannot recover. This point is also ruled, with a view to the facts. The point ruled will also be reserved, and'the Supreme Court will decide. The next inquiry will be, if Henderson had not actual notice, had he what in law is called - constructive notice. And if he had constructive notice, it is as effectual as if he had actual notice. There are certain things that the law presumes every purchaser of. real estate to know. For instance, a person is presumed to. know of the existence of a deed whieh has been recorded. This is the vei-y object of the recording act.' And whether in point of fact he knows it or not, is no manner of consequence. Pie might have known it, if he had chosen to inquire. So also if a person purchases an estate, and takes possession, although he does not record his deed, yet this is constructive notice to a subsequent purchaser. The law presumes, that a purchaser will not trust merely to the title papers, or to the records, but that he will inquire of the person in possession, whether he claims title to'the land. Thus'it has been held, that when the owner of a lot of land, containing about twenty acres, conveyed one acre of meadow-land to A.', who neglected to record his deed, but took possession, and planted it with willows, for the purpose of his trade of basket-making, which willows he cut eveiy year, at the proper season, and he continued in his possession about fourteen years, when the land of the .vendor was sold at sheriff’s sale, it was held that the possession of A. was sufficiently distinct and unequivocal to give notice to the purchaser at the sheriff’s sale. The possession was held to be sufficiently distinct, to put the purchaser on inquiry, as to the right under which the possessor held the land. It is therefore a principle of law, that such a possession as is sufficient to put a purchaser on inquiry, is constructive notice. You will then inquire whether Jacob Sailor,' either by himself or tenants, was in the actual possession of the premises on the 19th January, 1789, or 2d February, 1789. It will be-remembered by you, in this part of the casé, that ten months previously to this time, viz. 5th July, 1788, Jacob Sáilor purchased this property from George Weiss' for the sum of five hundred pounds. At this distance of time, and in the absence of all proof to the contrary, the jufy are war-' ranted in presuming that Jacob Sailor took the actual possession of the property according to contract, 'and that he held the property in the possession of himself or tenants, until the 19th January, 1789, and until the 2d of February, 1789; This presumption, connected with the testimony of - Catharine Craigen, (if you should credit her testimony,) that Jacob Sailor took possession immediately, and offered to let her live there, that her husband received and transmitted the.rents of this property in or about the year 1793, will be sufficient evidence of that possession which the law requires. It was, under the circumstances of this case, sufficient to put him on inquiry, which is all the law requires. If, therefore, you should believe that Henderson, on the 19th January, 1789, and Ettwein, on the 2d February, 1789, had either actual or constructive 'notice of the sale to Sailor, there is an end of this part of the case.</p> <p>3rd point. That Jacob Sailor took the benefit of the act for the relief of insolvent debtors, before he convéyed the property to the plaintiff, Henry Sailor. The jury will remember that Henry Sailor, the plaintiff, derives,title from his father, Jacob,-by'a deed dated the 12th August, 1817. Previous to this date, viz. on the-24th June, 1817, Jacob Sailor was discharged as'an insolvent debtor, and assigned all his property to certain trustees therein named, for the benefit of his creditors.- It is a principle of law, that the plaintiff must recover by the strength of his own title. And for this reason the defendants contend that, having before conveyed his property to trustees, for the benefit of his creditors, the plaintiff’s title is defective, and that he cannot recover in this action. The law is this. An insolvent debtor who has made a genera] assignment of his property, cannot maintain suit when the cause of action accrued previously to the assignment. Nor can a person, discharged as an insolvent debtor, after assigning all his property to trustees, support an- ejectment for land, though his trustees have not given bond. If, then, this case rested here, it would defeat the plaintiff’s' title, and' your verdict should be in favour of the defendants. But the plaintiff contends, 1. That this is not the Jacob Sailor from whom the plaintiff claims title, but his nephew. 2. That if it is, yet the presumption is, that the debts have been paid, and thé property is his, or his vendee’s. Whether this is Jacob Sailpr, the purchaser of this property, or his nephew, is a question of fact'for you to determine. The record was admitted on the testimony of a witness, Epplesheimer, who said that he had seen Jacob Sailor write, and that he believed it was his hand-writing. Isaac Young, however, thinks it is not his handwriting, but is the hand-writing of Jacob, the nephew, who, as Mrs. Craigen says, took the benefit of the act. The witnesses never said that old Jacob did take the benefit of the act. Several arguments have been brought to bear on this part of the case, which no doubt you distinctly remember, and which it will be needless for me to repeat. You will determine, for yourselves, whether this is the same Jacob Sailor from-whom the plaintiff claims title. Next, the plaintiff says, that even admitting that it is the same person, yet that the debt has been paid, and the plaintiff is entitled to recover, notwithstanding the assignment. The law is this: If the debts- Of the insolvent have been paid, the plaintiff may recover. For there is no necessity of a formal reassignment of the property. A debtor has a resulting interest in the property, that is, all that remains, after paying debts, belongs to him. If, then, the debts are paid, the trustees are seized of the legal title in trust for him; and he, or his vendee, can maintain ejectment. It' is a principle in the law of Pennsylvania, arising from our want of a Court of Chancery, that a plaintiff may maintain an ejectment on an equitable title, and cannot be nonsuited for a title outstanding in his own trustee. It will be your duty to inquire whether the debts have been paid. And here let me remark, that the plaintiff is entitled to the presumption that they have been paid. The assignment was made the 24th of June, 1817. The suit was brought to December term, 1831, and the cause is now trying, on the -11th of December, 1836. Tó the commencement of the suit is upwards of fourteen years, and until this time, it is upwards of nineteen years. The presumption, therefore, is, that these debts have been paid, or that some satisfactory arrangement has been made in respect to them, either by Jacob Sailor, or by the plaintiff, Henry Sailor, who has .an interest in extinguishing the lien against the estate. The doctrine of presumption arising from lapse of time, is not only a very extensive, but it is a very salutary principle of law. When judiciously applied, it may prevent a great deal of injustice by stifling stale complaints. The part that the trustees have done in this, perhaps, adds to the presumption, because it is difficult to account for the acquiescénce or forbearance of the creditors, except from the presumption that the debts have been paid, or that some arrangement has been made mutually satisfactory, by them with the owner of the resulting interest. But this presumption may be rebutted; and if you should be of the opinion, notwithstanding, from the evidence,- that the debts have not been paid, it removes the plaintiff’s objection, -so far as this matter is involved. On this branch of the case you will inquire, 1. Whether this is the, Jacob Sailor from whdm the plaintiff claims title; and 2. Whether the debts have been paid. If you find either that it is not the same person, or that the debts have been paid, there is an end of this paid of the defendant’s defence. But if you should be of the opinion that it is the same person, and that the debts have not been paid, it is a bar to the plaintiff’s action. This question is based on the supposition that the defendants have no title. It is a plank in a shipwreck, of which they have a right to avail themselves, although I do not think it a point which deserves any extraordinary favour from- the jury. But of this part of the case, as of every other, you will judge. The 'fourth, and last point, is on the act of limitation. The defendants rely on that section of the act of the 28th of March, 1785, which declares that no persons shall make entry into any manors, lands, tenements, or hereditaments, after the expiration of twenty-one years after his, her, or their-right or-title to the same first descended or accrued. The defendants assert that' they are protected by that .statute; that they entered under colour of title; and that they, and persons from whom - they derive title, have held the adverse possession for fifty years. The defendants deduce their title from William Henderson. ’ William Henderson conveyed the premises to George Weiss, 7th of June, 1788. George Weiss reconveyed to William Henderson on the 19th of January,' 1789. But before this, on the 5th of July, 1788, George Weiss had conveyed to Jacob Sailor, so that Weiss had nothing to reconvey. Henderson conveyed the property, by two deeds, to J. Shaeffer and. Jacob Ettwein. Ettwein conveyed to John Peters. John Peters makes his will on the 28th of November, 1791; and, as the defendants say, which, by-the-by,- the plaintiffs deny, authorises his executors to sell this, among other property. I will, remark here, that I- do not consider this a very material question- in this case, nor shall I express .any opinion upon it. If the defendants were plaintiffs, it might be of some importance. Be this as it may, the executors convey to Joseph Peters. Joseph Peters, on the 29th of November, 1809, conveys to Daniel Ley. Daniel Ley conveys to Thomas Reeves and others, his assignees. The assignees convey to Peter Hertzog and Tobias Beehler. Tobias Beehlér and wife to Peter Hertzog. And Peter Hertzog to George S. Geyer. The defendants allege that they, and the persons from whom they claim, entered into the possession of the premises in pursuance jof the title as above recited; and that they remained in the undisturbed possession for more than twenty-one years. And this question is a most important point in this cause, which you will decide from the evidence) under certain directions, to which I request your particular attention. Adverse possession must be taken strictly, and cannot be made out by inference, but must be made to appear by clear, if not positive, yet strong proof. Every presumption is in favour of possession, in subordination to the title of the true owner. The entry of the owner of land is only barred by an actual, continued, notorious, visible, distinct and hostile possession of twenty-one years. It is not necessary to entitle him to recover in ejectment, that he should prove that he, or those under whom he claims, have been in possession within twenty-one years. You will perceive, that a person may be out of possession for more than twenty-one years, and not lose the title to his land. To defeat him, it is necessary for the possessors of the land to prove, distinctly and clearly, all the requisites which I have just - now enumerated. They must prove an actual, continued, notorious, visible, distinct, and hostile possession of twenty-one years. In considering this part of the case, you are to take with you, that the plaintiff had the legal title to this land. That the defendants, or those under whom they claim, entered with the actual or constructive- notice of this title, and that they now seek to protect themselves by an adverse possession, with the aid only of what the law denominates a colourable title. You perceive, therefore, that if a person desires to oust the legal owner of land by an adverse holding, he must be vigilant, and must not leave this to inference merely. He must produce the testimony necessary to make out his case. It is not for him to complain that the plaintiffs have delayed' to enforce -their claim. The whole burthen of proof lies on the defendants. If they fail in any one of the requisites which I have enumeratéd — if a single link is wanting in the chain, there'is an end of the defence on the act of limitation. You perceive that the law has fenced and guarded the rights of the owner of real property. These rules we are not at liberty to depart from, even if we had the inclination. They are founded in the wisdom of ages, and the more they are examined, the more they will be admired. They are the bulwarks of our rights of property. Let me here make some general remarks, which you may find useful in examining this part of the cause.' Small discrepancies or errors in the recollection of witnesses, examined at different times, are .entitled to but little weight, in discrediting them, if in material points, they are entitled to more, although not by any méans conclusive. Indeed, if a person always- told the same story, in precisely the same way, that would in some cases of itself be a suspicious circumstance. If, however, a person swears .wilfully false, ill one particular, you may and ought to disbelieve him altogether. It is also a rule founded on principles of common humanity and justice, that perjury should not be imputed to a witness or witnesses on slight grounds; and when they are in apparent contradiction, it is your duty to reconcile their testimonies, if you can consistently with the evidence. So, if the general character of a witness for truth and veracity is impeached, yet if he is supported by other witnesses, .substantially, you would not be justified in disbelieving him on that account, in testifying to a transaction in which he is entirely without interest. Nor, are you lightly to believe in a combination of witnesses for this purpose. These observations apply particularly to the witnesses for the plaintiff, Catharine Craigen, Isaac Young, and Henry Kalback, and there will be no difficulty in making.the application. The defendants contend, that John Peters, who had at least a colourable title to the property, having a deed for it from Jacob Ettwein, dated 2d .February, 1789, entered on the possession of the property some time about the year 1793.' That they, the Peters, and the persons who held under thém, have continued, to hold the adverse possession of the same, from that time until the present, without interruption. For this purpose, they have examined a variety of. witnesses, and the question will be whether they have succeeded, of which you will judge, in showing an actual, visible, notorious, distinct, and hostile possession of twenty-one years. I must here remark, that if they show sucha possession as is just described, from the year 1793 until the year 1815, the time when, as the witnesses for the plaintiff state, Ley acknowledged the title of Sailor, that will be more than twenty-one years, and therefore sufficient. The defendant’s title will then have been complete,. and the subsequent .acknowledgement of Ley will not affect them. The defendants have examined a variety of witnesses, who prove, as they say: — That John Peters, under whom-they, claim, took possession'of the property in 1793, and that it was held by them until at least 1815, and even until the present time. But here the plaintiff -meets them on the threshold, and denies that Peters ever entered into the possession of the property at all. That they were in possession of the adjoining property, but not of this, and if they were, it does not distinctly appear for what purpose they took possession. And this entry, must be taken to -be in strict subordination to the rightful owner. In this way the plaintiff séeks to rid himself of the alleged entry of John Peters. The plaintiffs say, it does not distinctly appear for what purpose- they took possession. But to this the defendants reply, that Peters had at least a colourable title to the property, and that the presumptipn is, that Peters entered in pursuance of this right. This is a presumption to which I think the defendants are fairly entitled. But it will be for you, notwithstanding this presumption, to say, whether they .entered into possession, and whether that possession was in its commencement a hostile or adverse- possession. If. not hostile or adverse, then the defendants must show when it assumed that character. But it is not' only necessary that the possession must be adverse in its commencement, it must be a continued possession. If the possession is interrupted, its continuity is destroyed, and this prevents the running of the act. It is not necessary that the same person should be in possession, but if the possession be continued by descent from father to son, or by successive sales, that is sufficient. But if a trespasser, that is, a person who is not connected with the previous owner, gets possession, -it' is not a continued possession, and the act of limitation will not protect the defendant. The defendants contend, that they have furnished such proof; this the plaintiff denies. He contends that the defendants’ testimony does not prove either that it was originally his title, or if so, that it did so continue. It will be for you, to say, whether the defendant’s testimony furnishes that clear and positive proof of these facts which the law requires. And further they rely om the testimony of Catharine Craigen, Isaac Young and Henry Kalback. Catharine Craigen says, that her husband, Frederick Gash, received rent for Jacob Sailor, and sent it into the country to him. The last year was before 1798. She says- her husband, herself, and two others, went together to receive the rent. She knows he received-it, put it in a letter, sealed and sent it up the country. ‘ Sh'e thinks he received the rent for two or three years before this. To her testimony, the defendants oppose the evidence of-Mr. Maybin and others, who the plaintiff says is an interested witness, and denies the accuracy of his statement. On this part of the case, I will barely remark, that I cannot perceive very well how Mrs. Craigen could be mistaken, except wilfully so, in a ¿natter of so much importance in this cause. Whether she is mistaken, will be for you to determine, remembering always that perjury should not be lightly imputed to her, and that it is your duty to reconcile the testimony of the witnesses, if it can be conveniently done. If, however, you believe her testimony', here then is an interruption of the possession, which continued, according to her, until some time about thé year 1800. Her evidence shows that the pep-sons in possession, instead of being the tenants of Petex-s, were in truth the tenants of Sailor, the rightful owner of the property. They -have also relied on the assessment. This testimony is not entitled to much weight. It was never in the name of John Peters. It does not appear that the taxes were paid by them. I do not wish to be understood as intimating any opinion on this part of the case. You, gentlemen,- have heard the evidence and the arguments of counsel, and you will judge. If, then, the possession was interrupted, it cannot again begin to run until, say 1799, 1800, or 1802, and.it is immaterial which. For until 1815, which is another period which is important in the cause, twenty-one' years will not have elapsed. On this point it is necessary also to remark, that several of the witnesses speak of the premiseshaving been.'vacant for some time about this period. Mr. Greiner says, it was called the haunted house, was vacant and pelted with pebbles. In order to destroy the continuity of possession, - the vacancy must not be merely occasional, such' as occurs in every case, where á party, from some cause, is unable to obtain a tenant, .and shuts his property up for a short,, or indeed a long time. But when the possession is abandoned for any time, or when any person obtains the possession who is unconnected with the previous holdex’, it prevents the operation of the act of limitation agaipst the owner. When the possession is vacant, the law casts the possession on the legal ownex\ The plaintiff also contends, that there is no evidence to show when, or how, Daniel Ley came into possession : that he makes a breach in the possession: that inasmuch as this is not shown, the presurhption is, that he entered in strict subordination to the title of the .rightful owner. That this view is confirmed by the fact, to which I shall afterwards draw your attention, that Ley acknowledged the title of Sailor. To this,- -the defendants reply, that Mr. Maybin proves thatUaniel Ley come into possession of the property as the tenant of Peters. The plaintiff also says, that there was an assertion of title by-Sailor in the year 1807- This depends on the testimony of Henry Kalback. I shall now call your attention to the year 1815; to the transaction which is spoken of as having taken place in that year. I refer now to the testimony of Catharine Craigen, Isaac Young, and Henry Kalbach. In considering- this part of the case, I would wish you to remember what has been already said to you. The credit to be given to these witnesses is entirely for you — you will determiné this from a view of the whole case. But if they are to be believed, and they substantially, concur in the same statement, they distinctly proye, that in the latter year, 1815, Isaac Young, acting under a letter of attorney from Jacob Sailor, claimed the title to this property. That Daniel Ley, who was then in possession, having obtained a deed from Joseph Peters, most distinctly and unequivocally admitted the title of Jacob Sailor. ' That he promises either to rent or purchase the property; and they had more than one interview for this pui'pose. But they were unable to compromise, in consequence of Ley’s unwillingness to give the sum demanded by Sailor. Although a compromise offered and riot accepted, is of no weight, nor would the protection of the statute be lost by declarations, that if the adverse right is asserted and proves the best, he must yield, as is said by Justice Huston, in Jones v. Porter, (3 P. R. 135,) yet if you should believe that Daniel Ley acknowledged the plaintiff’s title,-and promised either to rent or purchase, the defendants lose the privilege of the statute, unless the defendants had an actual possession previous to this time, of more than twenty-one years. From 1815 uritil 12th December, 1831, is a period ■ of only 16 years, and this would not be sufficient time to bar the plaintiff’s right. You will not fail to observe, that to bar the plaintiff’s right it is necessary that there must be a continued possession. It will not do to make up the twenty-one years by detached periods of time. You cannot take ten years, then five, and put these together, so as to made up the twenty-one years. If there is an interruption in the adverse holding for any period ‘of time, however short, the defendants must begin again, and must count their adverse holding from the time interruption ceased.</p> <p>In conclusion, I have only to say to you that the plaintiff is entitled to recover, unless the defendants have shown either fraud, or that Weiss re-conveyed the property to Henderson, or Henderson conveyed to Ettwein before the deed made by Weiss to Sailor, was recorded, without notice either express or implied, or that he is protected by the assignment to his assignees, or by the act of limitation.</p> <p>If, however, you should think that the defendants have succeeded in either ground of defence, your verdict will be for' the defendants.</p> <p>If otherwise you will find for the plaintiff.”</p> <p>The jury found for the plaintiff; and the defendants moved for a new trial upon the following reasons.</p> <p>1. Because the verdict is against law, inasmuch as the deed from Weiss to.Sailor of the 5th July, 1788, was not recorded until more than nine months, after its execution, that is, not until 27th May, 1789, and not until after the execution and acknowledgment of the deeds of Weiss to Henderson of 19th January, 1789, of Henderson to Ettwein of 2d February, 1789, and of Ettwein to Peters of 16th February, 1789; they, the said Henderson, Ettwein, and Peters, being, as alleged and proved on the part of the defendants, subsequent bona-fide purchasers for a valuable consideration and without notice. And also,</p> <p>2. Because the claim of the plaintiff is barred by the statute of limitations; the defendants, and those under whom they claim, having actual, distinct, notorious, visible, hostile, and uninterrupted adverse possesion of the premises in question previous to and from the year 1793, till the year 1815, at least, and as the defendants allege, previous to and from the year 1793, fill the present time, accompanied by the title papers from-1750, and with the evidence of the assessment books from the year 1791. And also,</p> <p>3. Because the defendants, and those under whom they claim, had adverse possession of the premises in question for more than twenty-one years. And also,</p> <p>4. Because Jacob Sailor, the grantor to the plaintiff, had assigned his property to trustees, under the insolvent laws of Pennsylvania, in June, 1817; and in the month of August following, made the conveyance to the plaintiff, in trust for himself, (the said grantor and others;) and therefore he the said plaintiff, cannot maintain this action.</p> <p>5. Because the verdict is against the evidence in the cause, inasmuch as the only proof of possession of the said Jacob Sailor, prior to 1815, was that of Catharine Craigen, (except Henry Kalback, who' besides being discredited, spoke only of the year 1807, about nine years before Daniel Ley was the owner of the premises, and he merely spoke of an application to Daniel Ley, who was then in possession,) and there were several disinterested, credible and intelligent witnesses, on the part of the defendant, who proved the possession of the defendants, and those under whom they claim, previous to, and from the year 1793, till the present time, and that the possession was adverse; besides the public sales of the property, and other acts of those under whom the defendants claim, evidenced by deeds and other documents.</p> <p>6. Because the property was twice sold by public sale, and no notice or caution given by the plaintiff or Jacob Sailor.</p> <p>7. Because the judge who tried the cause, erred in charging the jury, that the law presumes the purchaser is bound to inquire of the person in possession about the land; and that the jury were warranted, nay bound to presume that Jacob Sailor had possession till 19th January, and 2d February, 1789.</p> <p>8. Because the judge who tried the cause, erred in telling the jury that in considering the point of the statute of limitations, they were to consider that Jacob Sailor had the legal title, and also that it is not for the defendants to complain that he laid by; without telling the jury that that was a circumstance to be taken into consideration against the plaintiff’s title.</p> <p>9. Because the judge who tried the cause, charged the jury that the parol evidence, respecting the acknowledgment by Daniel Ley, of Jacob Sailor’s title in 1815, if believed, was sufficient to take the case out of the statute of limitations, and to prevent its being a bar to the plaintiff’s recovery.</p> <p>10. Because the judge who tried the cause, told the jury that the plaintiff was entitled to the benefit of the presumption that the debts of Jacob .Sailor were paid, or that some satisfactory arrangement had been made respecting them.</p> <p>11. Because the verdict is against law and .evidence.”</p> <p>The case was first argued at March term, 1837.</p>

<p>1. The acknowledgment of a sheriff ’a deed in open Court, and the registering of it in the Prothonotary’s Office, are equivalent to recording it in the office of the JRecorder of Deeds, in respect to notice to a subsequent purchaser from the defendant in the exeeu-1 ' tion.</p> <p>2. It seems, that in the case of vacant lands or lots, where there is no actual possession, such deed so registered has the same effect as a deed of bargain and sale duly recorded, and-conveys not only the title, but the actual possession.</p> <p>3. After a possession of forty years from the date of a sheriff’s deed of a vacant lot, an entry by the sheriff’s vendee, in pursuance of the deed, may be presumed.</p> <p>4. ' Mere payment of the taxes accrued on a vacant lot, by a person having no title, cannot be considered as giving such person actual possession in contemplation of law, especially of that notorious adverse kind which is necessary to constitute an ouster of the party having the legal title.</p>

<p>A vessel bound to Philadelphia, and having a large sum of specie on board belonging to-the defendants, arrived in the bay of the Delaware in the month of December, and' after encountering various difficulties, was stranded and ice bound, near Reedy Island, in-a situation of imminent peril. The specie was carried over the ice to the shore and by land to Philadelphia, where it was delivered to the defendants. Some weeks afterwards the vessel reached Philadelphia in safety, with the remainder of the cargo, which had' been in whole or in part discharged into lighters, and afterwards reshipped. Held, that the defendants were liable to contribute to the charges and expenses incurred after the-landing of the specie, as general average.</p>

<p>1. In debt on a bond, the defendant pleaded payment, with leave to give the special matter in evidence, and gave notice that on the trial, he would give in evidence in avoidance of the bond, that the consideration of the bond was an assignment by the plaintiff to the defendant, of a right to sell and use “ a Patent Corn-shelling Machine,” and that the'plaintiffhad no patent-right to the same, and sold to the defendant a right which he did not possess, &c. Held, that the notice was sufficiently certain, and that under this notice, the defendant might give in evidence that the plaintiff had obtained a patent for an improvement by the adaptation of a grinding apparatus to a shelling machine, and not for “ a corn-shelling and grinding machine” which he undertook to sell to the defendant. Held alsa, that the deed of assignment of the patent-right was admissible on the part of the defendant, reciting that the plaintiff had obtained a patent for a “ corn-shelling and grinding machine,” although it purported to transfer only the plaintiff’s “right, title and interest” in the machine.</p> <p>2. Where the sale of a patent-right had been effected by an agent, who some months after the sale sent a specification of the improvement claimed by the patentee, to the vendee, it was held that the act was evidence against the vendor, especially as the vendor was informed of the act, and did not disavow it.</p>

IN ERROR. This was a writ of error to the Court of Common Pleas of the County of Bucks, to remove the record of the proceedings on an issue directed to that Court, to try the validity of a paper writing, dated the 23d of October, 1837, purporting to be the last will and testament of Joseph Clark, late of Doylestown township in the said county; in which issue Samuel Kachline and John B. Pugh were plaintiffs, and James Clark was defendant.

<p>1. A bond given to secure tbo payment, on the widow’s death, of the one-third of the valuation of the real estate of an intestate, may be binding on the surely in such bond, although not required by the act of 1794.</p> <p>2. It is not necessary to resort to the land bound tor the payment of such third, before proceeding against the surety in such bond.</p> <p>3. The lapse of nineteen years after the death of such widow, without suit on the bond, was held not to raise the presumption of the payment of the amount, so as to discharge the surety.</p> <p>4. It is error to submit a matter as a question of fact to the jury, in the absence of all evidence tending to prove it.</p>

<p>1. The improper admission or rejection of evidence not in chief, is not a subject of error.</p> <p>2. The defendant called a witness, to whom the plaintiff objected, on the ground of an alleged want of religious belief, and the judge admitted the testimony of witnesses in support of and in opposition to the objection, and afterwards the person objected to was examined on his voir dire, and having testified to his belief, was admitted to give evidence in chief. Held that there was no error in this.</p> <p>3. A son of the plaintiff had testified in support of an objection to the competency of a witness produced by the defendant, hut had not testified to any other matter. The witness for the defendant was admitted notwithstanding the objection. Held, that upon these circumstances, declarations of the plaintiff respecting the genera] character of his son for veracity were not admissible on the part of the defendant.</p> <p>i. In an action for maliciously indicting the plaintiff for a larceny in the Mayor’s Court of Philadelphia, a witness for the defendant testified that the jury dclibe. rated for some time, and that a majority of them were at first in favour of convicting the plaintiff. Held, 1. That the witness could not be asked on what ground the majority were in favour of convicting, nor what was the charge of the Court, nor whether if he had seen the premises in which the larceny was said to have been committed, at the time of the trial, it would have made any difference in his verdict. Held, 2. That the plaintiff might give in evidence the record of the Mayor’s Court of his indictment arid acquittal for the alleged larceny of certain other goods, owned by a different prosecutor, who had sworn, however, on the trial of this action to the simultaneous larceny of the defendant’s goods and his own, and that he had instituted a prosecution for it.</p>

IN ERROR. Error to the Court of Common Pleas of Wayne County, to remove the record of an action of trespass de bonis asportatis, brought by John Sharp against Wareham Day. The plea, was “ not guilty,” “ with leave to justify.” On the trial before Scott, President, on the 22d of August, 1837, the plaintiff proved the taking of the goods.

IN ERROR. Error to the Court of Common Pleas of Wayne County. It appeared on the return of the record, that Miron Gaylord brought an action before a justice of the peace, on the 25th of July, 1827, against John Sharp, Wareham Day and Charles Stanton, on a promissory note drawn by the defendants. Judgment was given by the magistrate in favour of the plaintiff) on the Slst of July, 1827, for sixty-four dollars and eighty-nine cents, with costs.

IN ERROR. This was a writ of error to the Court of Common Pleas of Chester County, to remove the record of an action on the case, brought by Edward Coleman and Louis Harford, executors of the will of William Coleman, deceased, to the use of Harriet Coleman, guardian of the minor children of James Coleman, deceased, against Rebecca W. Lukens.

An action was brought in this Court to July term, 1838, by John Henness, against John H. Meyer, and a rule of reference entered, on the 5th of September, 1838, under the 8th section of the act of the 16th of June, 1836, “ relating to reference and arbitration.” The arbitrators made an award in the following words : “We do award in favour of the plaintiff #2500; or that the defendant carry out and strictly fulfil his part of the contract.” The defendant filed the following…

<p>If a vessel be on a lee shore in a heavy gale, and the captain find it necessary for the preservation of the lives of the erew to run the vessel ashore, and accordingly they slip the anchor and put the vessel before the wind and she strikes the shore and is lost, and it appears that she would have gone ashore at all events, it is not a case of general average.</p>

IN ERROR. Error to the Court of Common Pleas of Northampton county. Edwin P. Wollé, brought an action of assumpsit in that Court, against Peter Brown, for goods sold and delivered, &c. The defendant pleaded non-assumpsit, &c., and the cause came on for trial before Banks, President, on the 28th of August, 1838. The plaintiff produced his books of original entries, showing the purchase by the defendant, and closed.

<p>The plaintiffs, in a letter to the defendants who were manufacturers of iron, said, “ We will take 100 tons of Washington pig metal, the same quality as that received last year from you, at 830 per ton, delivered at W. as early in the spring as the navigation of the «river will admit of, and the further quantity of 100 tons at any time between the 1st of •July and the 1st of October,” &e. The defendants replied, “We will have no metal to deliver after the spring freshet, or in case of no freshet in the river, in the canal immediately after. Therefore it will be necessary for you to say what quantity you will take on spring delivery as it will be out of our power to accommodate you at the ‘ time specified in your last note. Our terms are 830 per ton, &c.....An immediate answer is requested as we are receiving orders daily and are unable to decide as to the quantity wo may have to sell.” The plaintiffs, in answer, said, “We will take three ark loads if delivered in that way, which we would greatly prefer, or 150 tons if delivered by the canal. The terms proposed we will comply withHeld, that these letters did not constitute a contract on the part of the defendants to furnish the' iron asked for in the plaintiffs’ last letter; the defendants not having replied to the plaintiffs’ last letter.</p>

<p>If a deed which has been executed and acknowledged by the grantor, with a blank for the .¿grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house, and *the blank filled up, no title passes thereby; and a Iona fide purchaser, for a valuable consideration from the person holding the deed, stands in no better situation than such fraudulent holder, especially if the original grantor remain in possession of tho property.</p>

APPEAL. This was an appeal from a decree of the Court of Common Pleas for the City and County of Philadelphia, made in a certain cause there depending in equity, wherein Margaret Lucretia Nathans, by her husband and next friend, Jacob Nathans, was complainant, and Joseph Morris and Andrew Geyer were defendants.

IN EQUITY. This cause came before the Court on a motion to dissolve an injunction, which had been granted on the filing of a bill by James Fassit, Theodore L. Fassit and Alfred Fassit, co -partners in trade, as James Fassit & Co., against Isaac Phillips, Joseph L. Moss, Joseph Mora Moss and David Samuel.

IN ERROR. This was a writ of error to the Court of Common Pleas of Montgomery County, to remove the record of the. proceedings on a feigned issue, directed by that Court, wherein Daniel Man was the plaintiff and Elizabeth Helmbold the defendant.

<p>1. This Court will not, except in very peculiar circumstances, suspend the progress of a public work by granting an injunction, before the coming in of the answer.</p> <p>2. By an act of assembly, authorising the incorporation of a company to make a canal between the rivers Delaware and Schuylkill, the president and managers were authorised to enter.upon all the land lying between the two rivers, and to lay out and survey the route of the canal, and to buy so much land along the track or route of the canal and adjoining thereto as should be necessary for the proper construction of the canal, &c.; and it was further provided, that on the application to the District Court for the cit}' and couiity ofPliiladelphia, of any person who should be injured by or receive damage from the works of the company or by reason of the making of the canal, that Court should appoint suitable persons to assess the damage sustained, on whose report judgment should be entered and execution, on motion, issued, &c. By another section of the act, it was declared that, before the company should enter upon any land or other property for the purpose of constructing the canal, &c., they should pay such damages as might be agreed upon or give security for the same, to be approved by the District Court, &c. This section was afterwards repealed. On a bill filed by the owner of land through which the company were constructing the canal, the Court refused to grant an injunction till answer.</p>

APPEAL. This was an appeal from a decree of the Orphans’ Court for the County of Philadelphia, made in the matter of the accounts of William Kirkham and Charles Roberts, executors of the last will and testament of Benjamin Masden, deceased.

IN ERROR. Error to the District Court for the City and County of Philadelphia. The Samaritan Beneficial Society of the city of Philadelphia, brought a writ of scire facias in the Court below, against William Hoover and Barbara his wife, on a mortgage given by the defendants to John Stillé, and assigned to the plaintiffs.

<p>The statute of limitations is a bar to an action on a promissory note, given by a testator in his lifetime, but not due until after his death, if no suit is brought against his executors until more than six years have elapsed after the debt became due; and this notwithstanding provisions in the will for the payment of all debts, and for carrying on the testator’s business after his death.</p>

<p>1. Notice of the dissolution of a partnership, given in a newspaper printed in the city or county whore the partnership business is carried on, is of itself notice to all persons who have had no previous dealing with the partnership.</p> <p>2. But as to persons who have had previous dealing with the partnership, general newspaper notice is not sufficient. It must be shown that actual notice of the dissolution was communicated to the party in some way or other.</p> <p>3. Whether there has been such previous dealing or not, is a matter of fact for the jury; and therefore a judge ought not to rejcetvevidence of newspaper notice, but should direct the jury that if the evidence established a previous dealing, then in point of law there should have been actual notice, and that merely taking in the paper was not proof of such actual notice without something further.</p>

Charles Barrington brought ah action of assumpsit against John Hastings, on a promissory note, drawn by Gillingham, Mitchell, & Co., dated Philadelphia, 21st of December, 1831, at four months, in favour of and endorsed by the defendant, for one thousand and thirty dollars and twenty-five cents.

Iff ERROR. Error to the District Court for the City and County of Philadelphia. On the 16th of December, 1837, a summons issued from that Court, returnable on the 1st of January, 1838, in an action on the case entitled, “ Charles B. Austin, agent for the Union Glass Works,” against John Pearce.

<p>1. A declaration in caso set forth that whereas M. T. (the defendant) on a certain day madehis certain promissory note in favour of the plaintiff, &e., and the plaintiff averred that after the note became payable, to wit, on a certain day, the said M. T. was discharged under the insolvent law, &e., and after his discharge, to wit, on a certain day, the whole amount of the note being unpaid, “ whereby and by reason of the premises, and in consi- “ deration thereof,” the said M. T. promised the plaintiff to pay him whatever deficiency ■there should be, if any, after the plaintiff should receive his dividends under a certain assignment made by the said M. T. The plaintiff then averred that he never at any time received any dividend under the said assignment, but that the whole sum remained due, &c. Held, that this declaration was sufficient after verdict.</p> <p>2. The plaintiff offered in evidence a copy of an assignment made by the defendant on the 4th of January, 1834, for the benefit of creditors, and duly recorded, which copy was annexed to tho. defendant’s petition for the benefit of the insolvent laws. Evidence had previously been given that the assignee had refused to accept the trust, and the plaintiff’s counsel had given notice to the defendant's counsel to produce on the trial “ the assignment of the defendant of the 4th of January, 1834Held, that the presumption was that under the circumstances the original assignment was in the posses, sion of the defendant or his counsel, and that the paper having been annexed by the defendant to his petition, must be taken to be a true copy, and having been recorded it must be taken to have been duly executed; but that the notice was insufficient to authorise the reading of the paper ; not stating to whom the assignment was made, or what was the nature of it.</p>

<p>1. In replevin for six cases of prints, containing a specific number of pieces, and property-bond given, reciting the tenor of the writ, the return was “replevied, summoned, and claim, property-bond given.*’ Held, That evidence was not admissible to show that the number of pieces actually replevied, was less than that mentioned in the writ, and that di vers pieces of goods mentioned in the writ of replevin, had been sold in the course of business, before the issuing thereof.</p> <p>2. Assignees for the benefit of creditors, stand in no better situation than the assignors. Neither they nor the creditors whom they represent are purchasers for a valuable consideration, within the doctrine in favour of such purchasers; and this even though the assignment contain a stipulation for release of the assignors by certain of the creditors, who execute a release accordingly.</p>

<p>In 1825, A. pawned goods to B. to secure a loan of money. In 1826, B. sued A. befóte a magistrate to recover the amount advanced, and obtained a judgment, from which A. appealed, and in the Court of Common Pleas a rule was obtained to show cause why the plaintiff should not have leave to discontinue. A short time after this in the same year, A. brought trover against B. before another magistrate: judgment was given for the plaintiff, from which the defendant appealed, and in the Common Pleas a non pros, was entered. On the 26th of September, 1833, A. made a demand of the goods, and on the same day commenced an action of trover against B. in the District Court. Held, 1. That neither the suit by B. against A., nor that by A. against B., in 1826, was evidence of a conversion six years before the action. 2. That it might be left to the jury te presume that the demand and refusal preceded the action in point of time.</p>

CERTIORARI. This was a certiorari to the Court of Quarter Sessions for the' City and County of Philadelphia, to remove the proceedings on an application for the opening of Greenleaf Court in the city of Philadelphia.

IN ERROR. Error to the District Court for the City and County of Philadelphia.

1ST ERROR. This was a writ of error to the District Court for the City and County of Philadelphia.

IN ERROR. Error to the District Court for the City and County of Philadelphia. This was án action of assumpsit, brought by Patrick M'Bride, who was a manufacturer of domestic goods, against Samuel Comly, to whom, as he alleged,' he had consigned certain cases of such goods for sale. The first and second counts of the declaration were for selling under the invoice price, against the defendant’s promise and undertaking.

QUO WARRANTO. This was a quo warranto issued by this Court under ’ the act of the 14th of June, 1836. The suggestion and other pleadings were in the following words.. “ City and county of Philadelphia, ss. James Tod, John R. Neff,’Frederick A. Raybold, George W. M‘Clelland, William Darling, and'Thomas Fleming, who sue for the commonwealth in this behalf, come here into the ’ Supreme Court for the Eastern District of.