Volume 4 — Yeates's Pennsylvania Reports

The plaintiff declared in covenant, and laid his damages at $2000. On a trial this termhe obtained a verdict for $2856.38, and Mr. Blair, for the defendant, entered a motion in arrest of judgment. now stated and verified the following facts to the court: A former action was brought by Stiles against Girard on a lease (the foundation of the present suit) for rent, to March term, 1798, on which it was agreed, that new actions should not be brought.

A testatum fi. fa., issued from this court to Lycoming county, in this cause ; upon which the sheriff returned, that he had levied on a tract of land, surveyed in the name of John M'Micken, on the 12th February 1798, late the property of the defendant.

Foreign attachment returnable to March term 1803. moved, that the plaintiff should shew his cause of action. He stated that he had given notice to the plaintiff’s attorney, at the beginning of the term of his intended motion. This was admitted by Mr. Moylan, for the plaintiff, and that the judgment was entered, subsequent to such notice.

Ejectment for lands in West Pennsbro’ township, Cumberland county. The action was tried before Smith, J. at Carlisle on the 5th May 1803. Yeates, J. declined taking any part in the cause, having been counsel for the defendant in a former ejectment for these lands, which was tried on the 23d May 1782 at NisiPrius. A verdict being found for the plaintiff, Smith, J. reported the substance of the evidence given on the trial; a motion for a new trial having been made.

Suit on a bill of exchange, drawn at Charleston in South Carolina, on the 16th May 1798, by the defendant’s intestate, on Henry Henderson, in Philadelphia, for $2939.13, payable to the plaintiffs at sixty days sight. The bill was accepted by Henderson on the 1st June 1798, protested on the 3d August following for non-payment, and notice thereof > given immediately to the drawer.

Judgments were entered in these actions, on the 14th November 1803, as of the September, term preceding. Writs of testatum fieri facias were issued to Montgomery county, tested on the 17th September 1803, (the second return day) returnable on the 31st December following (the last return day of the term) but no writs of fieri facias had been actually issued, and were only marked on the docket.

The sole question arose on the will of the testator, dated 27th May 1777, in which there was the following clause: “I “give unto my well-beloved wife, Isabel Grubb, the remaining “ part of all my personal estate, and the benefits of all my real “ estate, till the children, my sons within mentioned, come of “age to enjoy their possessions.” Grain was growing in the ground at the time of the testator’s death.

These four actions were referred, by consent of the different parties, to John Perot, James Vanuxem and Robert Ralston, or any two of them. On the 22d February 1803, they signed their reports.

The following facts appeared from the records of the Orphan’s Court, on which the question of law arose. Christopher Griffith (the ist) died sometime previous to 1761 intestate, seised of 200 acres of land in Salisbury township in Lancaster county ; leaving a widow, named Isabella, (afterwards married to George Leach) and six children, the eldest named John and the second son Christopher, whose estate was under consideration.

Ejectment for lands in Mifflin county. This cause was tried at Lewistown in the Circuit Court, on the 26th May 1802, before Yeates and Brackenridge, Justices, when the jury found a verdict for the plaintiff.

This was a writ of error to the Common Pleas of Montgomery county. General errors were assigned. It appeared by the record that the suit was replevin. The defendant, Wells, justified as the bailiff of William Richardson Atlee, Esq., the distress of the goods for rent in arrear.

This cause was tried at Newtown for Bucks county, on the 12th June 1800, before Shippen, C. J., and Yeates, J., at the Circuit Court. Held: that the same words in statutes will bear different interpretations, according to the nature of the suit or prosecution instituted upon them, 2 Bl. Rep. 1226, which in plain terms, means, that acts of parliment have sometimes been carried beyond the natural import of their words.

Ejectment for lands in Northumberland county. The cause was tried at Sunbury, on the 17th October 1796, when the plaintiff’s counsel demurred to the evidence given by the defendants.

Indictment for larceny in stealing a promissory note from Philip Messinger to J esse Cleaver (two of the defendants) for 175I., and assigned to Plenry Abel. Held: that the word warehouse, in the statute, is meant not a mere repository for goods, but such places where traders keep their goods for sale, in the nature of shops, and whither customers go to view them. Fost. 77.

The petition stated, that Jacob Yohe the appellee, intermarried with Susannah, one of the daughters of the intestate, and was indebted to the intestate in his life time by bond dated 20th August… Held: that the plaintiff had pursued a proper remedy, and what shall be found due for principal, interest and costs, at law and in equity, ought to be satisfied out of what is due to D. on account of his legacy.

A judgment was entered .up against Daniel Meekly and Jacob Meekly, on a single bill, dated 14th March 1801, for 414I. 15s. 9d., payable on the 1st September then next, in pursuance of a warrant to confess judgment. The judgment, so far as it respected Daniel, remained in force, but was opened as it related to Jacob, who was the father of Daniel, on his affidavit, that he had not executed the instrument.

Case. — The facts appeared in evidence, as follow: Robert Ward held two negroes in Maryland, as slaves for life, under a devise from their former master, to the wife of Ward. They ran away from him, and came into New Jersey. He fol-*0 -i lowed *them into that state, and there executed a bill of 3-1 sale of them to Samuel Pennington.

Smith, J. By the statement in the record, it appears, that the contract on which the plaintiff below (the defendant in error) founds his action, and which the defendant below (the plaintiff in error) contends is null and void, was entered into on the nth March 1796; and that the single bill, on which the plaintiff below contends he ought to recover, was given for lands in Smithfield township, in Luzerne county, out of the seventeen townships, which lands had been granted to…

Case stated for the opinion of the court. John Dunwoody in his life time, entered into a recognizance of special bail in this court, in the case of Benedict Dorsey v. Lewis Lauman, (prout record.) Judgment was obtained, a ca. sa. returned N. E. I, and scire facias issued against John Dun-woody, the special bail, returnable to September term 1802, which was returned served.

A POINT was reserved on the trial of this cause, at the last Circuit Court, which the justices continued under advisement. They now proceeded to deliver their opinions.

Debt 71I. on the act against usury of the 2d March 1723. 1 St. Laws 193. Plea, nil debet and issue. On the trial at the last Circuit Court, the defendant’s counsel moved for a nonsuit; the contracts for the usurious loans, as alleged in the declaration, differing in point of date from the evidence adduced.

Ejectment for 37 acres and 63 perches of land, in Montgomery township.

Debt 137I. 14s. 63d. sur recognizance, in the Orphans’Court. Plea, payment with leave to give the special matter in evidence. The facts are these : Samuel Smith, father of the plaintiff Nancy, and of the defendant, died in 1763, intestate, seised of a tract of 408-f acres of land, having a widow, four daughters and one son, his youngest child, then aged six years. Nancy, the plaintiff, was the youngest daughter, and then aged about seven years'.

Indebitatus assumpsit for money had and received, and money paid, laid out and expended, to the use of the defendant. Pleas, non asstimfsit and payment. It appeared that one Francis Coskrey had become security for the defendant in three bonds to William Richardson, wherein they were jointly and severally bound.

Ejectment for 400 acres in Bull-Skin township. The plaintiff claimed under a warrant to Jacob Frelick, dated 30th July 1784, for 400 acres, lying on both sides of the Turkey Foot road, leading to Fort Pitt, about five miles from Hatfield’s mill, on the waters of the Yohiogeney, including both sides of Maple Run, and the place called the Mill Seat, and likewise a large spring, a cabin, and cleared land. Interest to commence from 1st March 1780.

Ejectment for 200 acres in Luzerne township. The plaintiff claimed the lands under a sheriff’s deed. They were levied on as the property of Richard Hawkins, but sold without any writ of venditioni exponas. The only question before the court, was, whether the defect of this writ, vitiated the sale.

There were three counts in the declaration. The first was in nature of a deceit, in the testator affirming negro Will to be a slave for life, and selling him to the plaintiff for look Virginia currency, equal to $333.33¿ as such, where-, as in truth he was a freeman, and afterwards duly liberated. The second count was for 500 dollars, had and received to the plaintiff’s use ; and the third for the like sum paid, laid out and expended at the instance of the testator.

Ejectment of one fourth part of Youghiogeny Forge, and 150^ acres of land, about three quarters of a mile below Con-nelsville.

<p>Only the owner, or his lawful attorney can register a negro or mulatto. The act of a stranger in such case is merely void.</p>

<p>This cause came on again to trial, a new trial having been ordered at the last December term.</p> <p>The suit was brought on two policies of insurance; the one on goods laden on board the schooner Eagle, at and from Eden-ton in North Carolina to Cape Nichola Mole; the other on the schooner herself, during the voyage. ,</p> <p>The plaintiff offered in evidence, the protest of Orlando Dane, the master of the schooner, taken in Philadelphia on the 12th June 1797, ten days after the subscription of the two policies, tending to shew that the vessel was forced by winds and weather into this port.</p> <p>*The defendant’s counsel objected thereto. We rest p g our defence on the deviation of the captain: instead of 1 proceeding to Cape Nichola Mole, according to the terms of the policy, he came to the port of Philadelphia, and seeks by his own oath to excuse himself, under the pretence of a storm. If there be a recovery against the underwriter, the plaintiff cannot maintain a suit against the master: so that, in fact, the latter gives evidence in his own cause. The master is answerable for all negligences and irregularities, on the soundest principles of reason. Wesk. 179. He must proceed to the place of his destination without-delay. Abbot 193,4. Nothing can be more clear, than that the underwriters are discharged from all respon • sibility, whenever a deviation takes place. Park 335, 1st ed. The justification to the insured for leaving the direct track of the voyage, is founded on necessity and reasonable cause; such as, to repair his vessel, to escape from an impending storm, to avoid an enemy, or to meet a convoy. Ib. 343. And in cases of deviation, the premium is not to be returned, because the risk has commenced. Ib. 362. In a question on a policy on goods, whether the ship was seaworthy or not, the owner of the ship was rejected as a witness, to prove that she was staunch, until released by the plaintiff. Peake Ni. Pri. 84. So in action against a master, for the negligence of a servant, the latter is not a competent witness to disprove the negligence, without a release. 4 Term Rep. 589. One is not a competent witness to impeach a security which he has given, though he is not interested in the event of the suit. 1 Term Rep. 296.</p> <p>The protest offered is á' mere ex parte deposition, wherein the master seeks to justify his own conduct to his employers. Experience teaches us, that we are not to expect rigid virtue in such cases. Even if there had been a cross examination, the deposition could not be received in evidence, unless by consent or rule of court. The reading of such papers is attended with great danger in mercantile life.</p> <p>The plaintiff’s counsel answered. The paper produced has been improperly styled a deposition; it is an instrument perfectly well known by the common usage of the country, and has always been received as evidence in our courts in questions of a commercial nature. 1 Dali. 6, 10, 318. Strict rules of legal evidence must not be applied to mercantile transactions. 1 Dali. 17. The exception, if established in the present instance, goes to all protests ; and thus an instrument of great utility in the commercial world, wisely calculated to prevent collusion, by recording events which have happened on the ocean, immediately on the ship’s arrival in port, will be rendered wholly nugatory and use- # 1 *less. The master is viewed as the common agent of the insurers,, as well as the insured, and both parties are equally interested in his protest. To call for a release to the master by the owner, or a cross examination by the underwriter, is impracticable in most cases; because protests are usually made in foreign ports, in the absence of both parties; and in this particular, they are clearly distinguishable from depositions in the usual course of justice, or witnesses testifying viva voce. The practice of the courts of justice of this state in receiving the protests of masters of vessels in evidence, is founded on a presumed necessity, inferred from the nature of commerce. Upon the same ground, a person is allowed to verify by his own oath, his book of original entries, in order to substantiate a demand for goods sold or work done, which is not allowable in Great Britain. Whether mariners usually adhere to the rules of rigid virtue in their protests, can only be determined by the jury under a careful review of the circumstances of each particular case.</p>

COVENANT on a policy of insurance, dated 30th January 1795, on the brig Betsey, William Bass, master, from Philadelphia to Bourdeaux, and at and from thence back to Philadelphia, upon all kinds of lawful goods and merchandizes laden or to be laden on board her. “ The goods warranted to be lawful, and the brig “ an American bottom.” The defendants subscribed under their common seal $13,333 and 33 cents, at a premium of 9 per cent.

Mr. Ingersoll moved that the. defendant should be discharged from custody. He had attended this court as a suitor, in an ejectment brought by him against Christiana Somerville, and on the trial had suffered a nonsuit. On the morning following, he was taken by his special bail in this cause, as he was setting off in the stage, on his return to New York.

PIabeas corpus cum causa, under the act of 1785, issued to the keeper of the criminal department, to bring up the body of the defendant. It appeared by the return thereon that he was committed to gaol by Abraham Shoemaker, esq., one of the aldermen of the city, for having wilfully set fire to a vessel of which he was owner, called the Theodosia, with the intent to defraud and cheat the Phoenix Insurance Company, out of the insurance made on her, upon the oath of David Bowers.

, one of the justices of the peace of Philadelphia county. It appeared by the return, that a warrant, dated 19th June 1804, had been issued in a plea of damages not exceeding $20. The complaint was for beating the woman in a violent manner. The parties appeared before the justice : the plaintiff agreed to submit the damages to referees, and chose her man. The defendant refused to make any choice, whereupon the justice chose two others to decide between the parties.

By the record it appeared, that a summons in case had issued against Jacob Fulmer, sen. and Jacob Fulmer, jun., returnable in the Common… Held: that if it appeared at the trial there was a joint contract, and only one of the contracting parties was sued, it was a decisive objection against the plaintiff’s action ; but afterwards, for the convenience of the suitors, on considering the principles on which those decisions proceeded, it was held, that if a defendant meant to…

On inspection of the records, it appeared, that a petition had been presented to the September sessions 1803, praying for the continuation of New Market street to Budd street, upon which viewers had been appointed. In December sessions following, the viewers reported, that the road prayed for was necessary for the public utility.

This cause was marked for trial at the spring circuit for York county. Mr. Hopkins in behalf of Bucher one of defendants, *moved, that he should be separated from the other r* defendant Row, and that the plaintiff should file a dec- *- ^5 laration against each defendant, so that the suits might be tried separately.

<p>Suk case stated. A commission of bankruptcy issued against the defendant, and'he was thereupon declared bankrupt, and on the 20th June 1803, he surrendered, prout certificate of commissioners.</p> <p>After the forty-second day, which was the 27th July 1803, the commissioners granted further opportunities to the creditors and assignees, to examine the bankrupt from time to time, until the 20th September following ; prout certificate of Bird Wilson, the secretary. At the last examination the commissioners signed the certificate of discharge, and on the 23d December 1803, the district judge allowed the certificate, the commissioners having certified on the 24th November preceding, that the requisite number of creditors had given their consent.</p> <p>A ca. sa. issued at the suit of the plaintiff, by which the defendant was taken into custody on the 12th November 1803. And it is submitted to the court on the preceding statement, whether, on the said 12th November, the defendant was exonerated from arrest by the plaintiff, and the execution and arrest thereon irregular by law, or regular.</p> <p>admitted, that under the 22d section of the act of congress, passed 4th April 1800, a bankrupt was privileged from arrest for forty-two days, and such further time as might be allowed for his final examination. But here his privilege ends, until the district judge allows his certificate. The enlarged time ended on the 20th September; but though his certificate of discharge was subscribed by the commissioners, it did not receive the allowance of the judge until three months had elapsed. What was a creditor to do in such a case while matters remained in suspense ? No law forbade his remedy against the person of his debtor, and the present proceeding was regular. The law of the Union pursues the British statutes in the present particular. The protection to a bankrupt does not extend beyond the enlarged time. 1 Atky. 148. An execution taken out after the creditors had signed, but before the Lord Chancellor had allowed the certificate, was held good. 1 Term Rep. 361.</p> <p>contended, that the con- % 1 struction insisted upon would defeat the act of con- ™ -* gress, and be injurious to the creditors as well as the bankrupt. The 22d section of the act has been already mentioned. The 33d section directs, that he shall at all times after his surrender, attend the assignees, upon reasonable written notice. The 34th section allows him certain sums upon the net produce of his estate, discharges him from all former debts, and exempts him from arrest for such debts. And the 60th section authorizes the commissioners to liberate a person becoming bankrupt, who shall be in prison, in case his conduct shall have been fair, so as to entitle him to a certificate in their opinion, &c. Whenever the bankrupt has submitted himself to be examined, and has assigned his property, he shall not be arrested or detained in prison. This is agreeable to the spirit of our state constitution. To effectuate the intentions of the legislature, a reasonable time must be allowed for procuring the fiat of the judge to the certificate of conformity given by the commissioners. It cannot in the nature of the thing be done immediately. The judge, to prevent surprize, will take time to consider. In the case cited from 1 T. R. 361, a distinction was taken between an execution against the goods and person of the bankrupt.</p>

Ejectment for two lots of ground, in the city of Philadelphia. Held: that the two *acres of meadow did not pass thereby; because, by the words cum pertinentiis, [*150 land passeth not, but only such things as may be properly pertaining; but otherwise it had been, if the devise was „um terns pertinentibus. Cro. Car. 57.

Covenant on a charter party of affreightment, made on the 20th April 1799. Plea, covenants performed, with leave &c., and a notice of a set-off. The charter party was of the schooner John, captain Matthew Ford, from the port of Philadelphia to Surinam, and back again. The entire freight stipulated to be paid was $2920, and for de-murrage beyond 20 days at Surinam, at the rate of $20 per diem.

The cause was tried in Bank, on the nth December last, and a verdict given for the defendant. Held: that in cases of double insurance, the assured may at his election, sue either set of underwriters, and that upon a recovery there should be a contribution of the other underwriters.

Debt on an obligation, in the penalty of 250,000 dollars dated 1st April 1797, with a special condition as follows: Whereas the said Thomas Hawthorne and Alexander Kerr have mutually agreed to dissolve and discontinue the co-partnership heretofore subsisting between them, and have agreed that the said Thomas Hawthorne shall take to himself all the goods, merchandizes, stock in trade and outstanding debts due to them, and shall assume the entire payment of all the debts and…

Th.is was a motion by the plaintiff for a rule to plead by the first day of the next term, entered 14th December 1801. The cause was a feigned issue to try the validity of a will. On the 31st December 1798, a paper was filed in the register’s office of the county of Philadelphia, dated 23d April 1793, purporting to be the last will of William Bradford, esq., and republished on the 19th August 1795. On the 27th February 1799, a caveat was filed by the defendant.

These causes came to trial at Nisi Prius¡ in PhilaJelphia, 0it the 25th February last, when a juror was withdrawn, and the following case submitted to the court.

Rule to shew cause, why a mandamus should not issue to the county commissioners, to pay the salary due to Philip Edwards, as keeper of the gaol of the city and county of Philadelphia, and the interest thereon.

Rules to shew cause, why the executions issued should not be set aside, and restitution awarded; and that the plaintiffs should be restrained from issuing further executions, without leave of the court.

Motion on behalf of the plaintiffs, to take the money raised by the sale of the defendant’s goods, out of court. Chancellor v. Philips, Cummins v. M'Dougal, Levy v. Wallace, and Swift et al. v. Kantner, decided in this court. I Wils. 44. 1 Vez. 245. 2 Bla. Rep. 1218. United States v. Cunningham, decided 26th May 1802, in Circuit Court U. S., and Barnes v. Billington, April 1803, in same court.

On a venditioni exponas returnable to September term x 804, one undivided sixth part of a house and lot in the city, was returned sold to the plaintiff, during the life of the defendant. A motion was entered in December term 1804, to set aside the sale, on the ground of irregularity. The motion was made in behalf of Joshua B. Bond, a creditor of the defendant, but who had obtained no judgment against him.

A case was also filed for the opinion of the court, on a rule to bring into court, the money proceeding from the sale made by the sheriff. Held: that the priority of one could not be averred. Judgments are good by relation, though the defendant died before actual signing. Northern v. Olliver, 2 Barnes 265, (266, new edit.) Hall v. Morse, 2 Barnes 208, (267.) Savil v. Wilt-shire, lb, 212, (270.) Fawkes v. Atkinson, lb, 209, (268.) S. C Willes, 427.

Motion to set aside the sheriff’s sale of two houses and lots in the city, on a levari facias, to this term. The mortgaged premises were advertised, as subject to a ground rent of 61. ios. sterling per annum. It was found out at the time of sale, that the mortgaged premises were subject only to the ground rent of 3I. 5s. sterling, the whole lot being chargeable with 61. ios. per annum, which the ground landlord refused to divide.

<p>One shall not be twice held to bail for the same cause of action, unless under very special circumstances.</p>

Clair’s accounts, as an auctioneer of the city, on the 9th April 1804. that while he was in *office, the payments ought to have been made to the state treasurer ; but that the sum in question was paid on the L 209 26th February 1789, when his office ceased. In a republican government there ought to be no distinction of persons. If a payment by Milne was justifiable and valid, so also should it be of Ash and the appellant.

Ejectment for a small island in the river Susquehannah. The plaintiff claimed under an application dated 29th May 1794, whereupon an order issued to three persons to view it. They reported on the 17th November following, that the island was susceptible of cultivation and valued it at 4I. per acre.

Ejectment for one equal undivided third part of 75!- acres of land in Newberry township. The plaintiff claimed under a warrant and survey to William Baxter, one third part whereof became vested in Thomas Armor. A judgment was obtained against him in April term 1784, and on afie-tifacias returnable to July term following, the premises in question, with other lands, were levied upon, and an inquisition held thereon and condemned.

<p>CORAM — YEATES AND SMITH, JUSTICES.</p> <p>A warrant unsigned by the governor, where money has been paid upon it, is good evidence, and confers an authority to survey the lands. A warrant or application, generally descriptive but vague, without a survey, must give way to a subsequent one of the same kind, whereon a survey has been made, or to a precise and accurate one, without a survey. Practice of surveying, ro per cent, surplus before the revolution.</p> <p>Referred to in 2 S. & R. 559.</p> <p>Cited in 7 S. & R. 335 in support of the decision that a survey in 1793, of 328 acres, bn a warrant for 130 acres, to the prejudice of the improvement right of a third person to 300 acres, which improvement was made prior to the survey, is bad.</p>

Trespass quare clausum fregit, in cutting down trees. Pleas, non cul. and liberum tenementum. The plaintiff claimed under an application of Thomas Morris, dated 22d October 1766, for 300 acres, joining on the west by a survey on a large run, which leads into the east branch of Little Juniata, about one mile eastward from the path that leads from Little Juniata to Susquehannah, in Cumberland county. It was marked No. 1629.

<p>Bond conditioned for the payment of 740I. in seven years and the interest thereon yearly and every year $ agreement indorsed thereon by the obligor that if any part of the interest should remain unpaid for the space of three months to allow the obligor lawful interest for the same from the end of the said three months until paid. The agreement may be inforced, and is not usurious.</p> <p>Cited in 34 Pa. 211 in support of the proposition that compound interest is not recoverable, unless there has been a settlement between the parties, or a judgment, whereby the aggregate amount of principal and interest due is turned into a new principal; or where there is a special agreement to do so, in such form as to be valid. Interest is never a legal incident to the non-payment of interest.</p> <p>Cited in 44 Pa. 70 in support of the decision that the coupons of railroad bonds are negotiable instruments, and may be sued on by the holder separate from the bonds; and interest from the date of demand and refusal of payment may be recovered. Cited for a similar purpose in 105 Pa. 199; 15 W. N. C. 372.</p> <p>Cited and approved in Bainbridge v. Wilcocks, 1 Baldw. 536; Mowry v. Bishop, S Paige (N. Y.) 101.</p>

This was a writ of domestic attachment in case, issued in the Court of Common Pleas of Allegheny county, on the nth May 1804, on filing of the affidavit required by law, returnable to the following June term. The sheriff returned, that he had attached sundry merchandize and the books of accounts of the defendant, and the court appointed auditors under the act of assembly.

Mr. M'Kean in the afternoon of the first day of the term, moved, that the appeal in this cause from the decision of the last Circuit Court for Lancaster county, in April last, wherein the motion for a new trial made on the part of the plaintiff, was overruled, should be received.

On process returnable to this term, Mr. Ingersoll for the defendant, moved the court for their opinion, whether by the practice of the court the defendant was bound to file an affidavit of defence. It 'is admitted on all hands that such affidavit is not necessary in the cases of executors or administrators generally, because they cannot be supposed conusant of the facts out of which the defence arises. The court can only judge from the record.

A special jury had been struck for the trial of this cause. Upon the panel being called, a sufficient number of jurors did not appear, and the plaintiff’s counsel applied for a tales de cir-mmstantibus. submitted to the court whether this could be done in the case of a struck jury, under the late act passed 29th March 1805.

A habeas corpus ad subjiciendum under the act of 178Sj issued to James Rolph, the keeper of the debtor’s apartment, to bring up the body of the defendant before the court. He returned, that he detained him in custody, by virtue of an execution issued by Joseph Cowperthwaite, esq., a justice of the peace, for a debt of 29I. 10s., interest thereon 3I. 3s., and 15s. 6d., costs.

Rule to shew cause, why the foreign attachment issued in this cause on a promissory note, should not be dissolved. The writ had been sued out on the 17th December 1804, returnable on the second return day of the last December term. It appeared in evidence, that the defendant had served his apprenticeship with William Sitgreaves, in Philadelphia, twelve years ago, and after its expiration was some time his partner, and then traded for himself.

Exceptions to the award of referees, who found the sum of $7962.36, due to the plaintiff. The defendant’s counsel relied on three grounds. 1. The referees have committed mistakes in their construction of certain articles of agreement made between the parties. 2. They have erred in principle, in not charging the plaintiff with $6735.31, respecting a bond due from Thomas Fitzsimons and Robert Morris, which was assigned by the plaintiff to the defendant. 3.

Motion to set aside a nonsuit. The plaintiff filed a libel for a divorce de vinculis matrimonii, stating the solemnization of a marriage between her and the respondent, and that he afterwards… Held: that to publish a man as a swindler was a libel, and actionable; but that a justification of such a charge must state the particular instances of fraud by which the defendant meant to justify the publication.

Motion by Mr. M'Kean, attorney general, to take 14,503 dollars, arising from the sale of the defendant’s lands by the sheriff, out of court. ’ This motion was opposed by Mr. Dallas, who filed a claim in behalf of the United States, to the money, as attorney of the United States for the district of Pennsylvania, under the execution, and divers acts of congress, and particularly of the act of 3d March 1797.

Motion to set aside inquisition of damages, finding for the plaintiff 574 dollars for the maintenance of a bastard child. Several objections were made thereto; but the one relied upon was, that there had been but four days notice given of the execution of the writ. In England, if the defendant lives within 40 computed miles from London, there must be eight days notice of inquiry, exclusive of the day it is given. 1 Tidd’s Pract. 319. And such is the practice of Pennsylvania.

<p>CORAM — YEATES, JUSTICE.</p> <p>Recitals in a patent of sundry transfers of a location, no evidence against a prior patentee of the same lands.</p> <p>Whether a warrant or application describes a certain tract of land or not, can only be judged of by the words of it; but the sentiments of the people as-to certain streams of water, or their names in early times, may be given in evidence.</p> <p>Cited in 19 Pa. 40 to show that recitals in a patent are not evidence against one holding by settlement, or other right, originating prior to the date of the patent.</p>

<p>Replevin for one poplar chest, one pine chest, one feather bed, one chaff bed, and one green bedstead.'</p> <p>The defendant avowed for rent in arrear.</p> <p>The plaintiff replied, that no rent was in arrear.</p> <p>The defendant’s counsel having established the contract to pay the rent, contended, that they were entitled to recover the whole sum, with interest from the time of bringing the suit.</p> <p>The plaintiff’s counsel insisted, that the avowant could only recover the value of the articles distrained, his remedy being by the writ of retorno habendo. The stat. of 17 Car. 2. c. 7, has altered the law in this particular; and the jury shall at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods and cattle distrained, and thereupon he shall have judgment for such of so much thereof, as the goods and cattle distrained amount to. Bull. 58. The case of Rees v. Morgan fully shews this ; where the amendment prayed for, was to enter the finding by the jury, that the rent in arrear amounted to 19SL, and the cattle distrained to the same value, which the court granted. 3 Term Rep. 349. If the jury should find a sum in arrear exceeding the value of the articles distrained, a judgment thereon cannot be enforced by any execution known to the law, and would therefore be of no effect.</p>

Ejectment for 350 acres of land in Buffaloe township. The plaintiff claimed under a descriptive warrant in the name of Ludwig Karcher, dated 25th October 1774, and a survey made thereupon on the 27th April 1775, which was returned into the surveyor general’s office on the 12th March 1776.

An indictment was found in July sessions 1803, in the May- or’s Court for a libel, which was removed into the Supreme Court in December term 1803. The prosecution was ably conducted by Mr. M‘Kean, the attorney general; and the defence was supported with equal ability, by Messrs.

Ejectment for a large lot of ground 316 feet in length on Schuylkill Front street, and 396 feet in breadth on Vine street.

On a rule to shew cause why the foreign attachment issued in this suit should not be set aside, the positive affidavit of the plaintiff was shewn, that the defendant was justly indebted to him in 2711 dollars and 13 cents ; and that his place of residence was in the county of Newcastle in the state of Delaware.

COVENANT on a policy of insurance, on goods at and from Philadelphia to Havanna, and back again ; the property insured on the outward passage being warranted to belong to Don Alvarez Calderon, king’s attorney in the island of Cuba. A notarial copy of an agreement between the plaintiffs and the said Don Alvarez Calderon, respecting the goods laden, was offered in evidence by the plaintiffs.

SciRE facias sur mortgage dated 17th December 1801, by Peter P. Walter to the plaintiffs, to secure the payment of 800 dollars with interest on the 17th June 1802, acknowledged 18th December 1801, and recorded on the next day.

EjectmeNT for a messuage and lot of ground in the district of Southwark. The plaintiff claimed under a deed from Shepherd Church, to his mother Mary Church (who was likewise the mother of the parties) for this lot and other lots in the city, in consideration of 800I., which was duly acknowledged and recorded.

On the trial of a special action on the case brought by Tra-quair against Redinger, for depriving him of the use of water for his mill, which was occupied in sawing of marble, (during this term) the court, after having spent nearly two days in the trial, recommended a special reference, in order to save the parties from further disputes, and permanently to settle their respective privileges as to their future use of the water.

<p>Under stat. 8 and 9 Wil. 3, c. 11, in debt on the penalty of a bond, plaintiff may assign as many breaches as he pleases. If his pleading is vicious, defendant must take advantage of it by demurrer.</p>

<p>COEAM — YEATES, JUSTICE.</p> <p>Articles of agreement for the sale of lands, whereby it was agreed that on payment of money at a future day, the vendee should receive a deed, held not sufficient to divest the legal estate, though the words do grant, bargain and sell were inserted therein, and bonds given for the purchase money.</p> <p>A deposition taken on a caveat before the Board of Property, not allowed in evidence, though the witness was cross examined by the adverse party, and is since dead.</p> <p>Cited in 3 Rawle 435 to shew that if the intention is clear that an estate shall pass, courts will construe deeds in support of that intention, different from the formal nature of those deeds.</p> <p>Cited in 27 Pa. 301; 33 Pa. 249; 48 Pa. 385 to shew that the intention of the parties will control the technical words used.</p>

<p>CORAM — YEATES, JUSTICE.</p> <p>A legatee under a will may give evidence to impeach the testator’s deed, if she has no remedy for the recovery of her legacy payable out of the lands. Presumption of bias in a witness may be removed by an interest on the other side.</p>

<p>CORAM — YEATES, JUSTICE.</p> <p>Improvement rights in early times, have been considered as chattels, to many pur‘ poses, and sold as such by executors and administrators. But as between vendor and vendee and their heirs, where no bill of sale has been given, the equitable right continues in the administrators, though possession has been delivered, where the consideration money has not been paid.</p> <p>One claiming an improvement, and taking out a warrant including the same, and obtaining a survey, is in general concluded by the lines thereof; but under certain circumstances, this rule does not seem to hold.</p> <p>3 Grant 367.</p>

on a case stated, at a Circuit Court, held in Allegheny county, in November 1802, as follows: In this suit, a venditioni exponas issued in the Circuit Court, returnable to March term 1802, to sell lands of James Sample, viz. No. 3, 8, 16 and 19, in the 4th district of depreciation lands, commonly called Cunningham’s district. The sheriff returned, that he had sold the lands, and had the money ready in court, to pay as may be ordered.

Writ of error to the Court of Common Pleas of Beaver county. The action was trespass quare clausum fregit, to which the defendant pleaded non cul. et libemm tenementum. A bill of exceptions was sealed upon the trial as follows, by the president of the court.

Writ of error to the Quarter Sessions of Erie county. It appeared by the record, that Miles had been indicted for a misdemeanour, in spiriting away a witness on the part of the commonwealth, in a criminal prosecution.

The declaration was in slander, and contained four counts. The first and second counts charged the defendant with having asserted in the Ohio Presbytery held at Buffaloe, that he could prove the testimony given by the plaintiff on a certain complaint exhibited by the defendant against the Reverend John M'Mil-lan to be false, and that he had sworn falsely before the presbytery.

Writ of error to the Quarter Sessions of Crawford county. The indictment was found in July sessions 1801, and stated, that-Robert M'Nair, &c. on the 17th day of June in the year of our Lord 1801, at the township of Waterford in the said county of Crawford, and within the jurisdiction of this court, with force of arms and a strong hand, into the messuage, tenement, and tract of land, of a certain John Vincent, then and there being the free tenement of the said John Vincent,…

EjectmeNT for 400 acres of land, on the waters of Beaver creek. The plaintiff claimed under a warrant issued under the act of 3d April 1792, dated 14th April 1792, which was entered in the books of the district surveyor, on the 10th June 1793, and a survey made thereon by John Hoge, deputy surveyor, on the I4tn March 1795. The defendant contended, that he had made an actual settlement on the lands prior to the survey.

Ejectment for 400 acres and 131 perches of land in Sugar Creek township.

Mr. Dallas, for the plaintiff moved, that a report of referees should be recommitted to them, to correct an informality therein. The plaintiff was ready for trial at the last March term, but at the instance of the defendant’s counsel, submitted to a reference. Before the referees met, the plaintiff died intestate, and letters of administration were issued on his estate on the 27th August 1806.

Case for the opinion of the court. Israel Wheelen and Joseph J. Miller, of the city of Philadelphia, merchants, trading under the firm of Wheelen and Miller, were indebted to the plaintiff by reason of a promissory note, given by the said firm to a certain John Dunwoody, and indorsed by him to the plaintiff. ■ This note became due after the partnership aforesaid was dissolved ; and another, of which the following is a copy, was given in its place, and the original note…

Indebitatus assumpsit for goods sold and delivered. The plaintiffs were merchants in Birmingham in Great Britain, and sold the goods in question to the defendant, through the agency of one Charles Gillchreest who delivered them. The invoice book of Gillchreest was offered in evidence, but objected to, because on the face of it no contract is proved thereby, and it appears to be but a copy of the invoices sent by the plaintiffs from England.

Ejecthent for a messuage and lot of ground on the north side of Filbert street and west side of Delaware Thirteenth street. It was admitted, that Jacob Grubb was seised of the premises, and that they .were sold under a regular judgment and execu tion. On the 22d April 1799, Jonathan Penrose, esq. sheriff, conveyed the same to John Knight now deceased, in consideration *of $215, and the deed was acknowledged in open r* court on the 2d June 1800.

This was a feigned issue to try the validity of the last will of Amelia Sennet, deceased, dated 8th August 1801. There were two witnesses to the instrument, Edward J. Coale and Robert Taylor. The mark of the testatrix was said to be affixed thereto. Taylor swore, that he had been sent for by Mrs. Sennet, to draw her will; but that being indisposed, he had recommended to her that Mr. Coale, a young lawyer, should do the business.

Suit on a promissory note. Thé defendant pleaded non as-sumpsit and payment, a set-off and the statute of limitations. After the jury were sworn, it was discovered that the plaintiff had not replied to the pleas, and that the issues were not joined.

Indictment for a libel. Sur motion for an attachment against a witness, for not attending the court, in pursuance of a subpoena.

The plaintiff declared in special assumpsit that in consideration of ¿Ü1492 and 50 cents, paid to the defendants on the 14th August 1795, they had promised to pay and deliver in twelve months, the same sum in assorted seasonable European merchandize, at wholesale cash prices; that Allison and Orr had been returned by the sheriff, “ not to be found ” on the capias ; and that they and each of them had neglected and refused to pay and deliver the same, &c. Pleas non assumpsit…

Scire facias. The defendant pleaded payment, with leave to give the special matter in evidence.

Yeates, J. who-tried the cause at Nisi Prius, on the 5th March instant, reported the case and evidence as follows : The # -j ^action was brought to December term 1801, and the declaration contained two counts. The first was a general indebitatus assumpsit for work, labour and service, done by the feme before marriage; the second contained a quantum meruit. To which the defendant pleaded non assumpsit and payment, with leave, &c. and also the acts of limitations.

AccouNT^render. Upon the judgment rendered to account, auditors wéte appointed by the court. On the 24th May 1804, the special report of the auditors was filed in the prothonotary’s office, finding for the plaintiff 2486 dollars and 5 cents, and read in open court in September term following, but no judgment was ever entered on it.

questioned the legality of the 64th rule of practice of this court, made on the 30th December 1797, requiring the certificate of counsel to be subjoined to the affidavit of the defendant, before he shall be entitled to a special jury. The act of 19th March 1785, (2 Dali. St. Laws * , 1 *267, § 17,) directs, that either the plaintiff or defendant ’ I shall lawfully enter a rule for a special jury, in any civil action.

This suit, with two others against William Smith and Edward Carrol, of the same nature, stood on the trial list, at the last court of Nisi Prius, under rules to try or nonpros. They were founded on the defendants’ respective subscriptions for shares in the canal company.

Writ of error to the Circuit Court of Centre county. The action was brought on an insimul computasset, to which there was a plea of non assumpsit and payment, with leave to give the special matter in evidence. The trial was had at Beliefonte on the 16th May 1804, before Smith and Brackenridge, Justices, when a verdict was given for the plaintiff below, with 429I. ios. 9d. damages.

This was a motion for a rule to shew cause, why the judgment entered in this cause on the 18th April 1805, should not be opened. The motion was made in December term 1805, upon which proceedings were stayed in the mean time.

There had been four different views on this road, and four returns thereon. The sessions confirmed the third review, which did not mention the improvements through which the road passed, but fixed the breadth of the road, which was afterwards adopted by the court.

deceased, late one of the aldermen of the city of Philadelphia. Diminution of the record was alledged in September term 1805. It appeared by the record returned, that a summons issued against the defendant, dated 28th July 1804, to appear before alderman Hillegas, to answer the plaintiffs in a plea of debt not exceeding $100, to which the constable returned, “Summons “ served.

Writ of error to the Common Pleas of Franklin county. It appeared to be an action of slander. The teste of the writ was 10th April 1802, returnable on the first Monday in August following; and the plaintiff’s declaration laid the words to have been spoken on thé 1st May 1802. The jury found a verdict for the plaintiff with 1200 dollars damages. By a memorandum subjoined to the record, the prothonotary certified, that the writ issued on the 22d April 1802.

In this action, upon a writ of inquiry of damages, the jury found 6 cents damages, and 6 cents costs. A former inquisition found 575 dollars damages. Early in the term, Mr. Browne for the plaintiff, moved for a rule to shew cause, why the inquisition should not be set aside. This was succeeded by another motion of Mr. Milnor for the defendant, for a rule to shew cause, why the inquisition shovdd not be amended. They were heard at the same time.

This cause was tried in Bank on the 1 ith December 1805, and a point was reserved therein. The counsel afterwards agreed to state the following case: Ejectment for a certain lot or piece of ground in the city of Philadelphia, 316 feet by 396 feet.

These were four different -ejectments brought against the different defendants, to September term 1801, for four houses on the southwest corner of Dock and Walnut streets, in the city of Philadelphia. The trials were brought on, before Yeates, J. at a Court of Nisi Prius, held on 3d March last, and the following facts were admitted to the jury. Samuel West was seised of the premises in question.

This suit was brought on two promissory notes payable to the plaintiff, without defalcation.

On cases stated, after argument, judgments were rendered for the plaintiff in both causes on the 29th December 1804. Writs of error were then taken out, returnable to July term 1805, in the High Court of Errors and Appeals; on which non pros'svttxe entered 29th December 1806, and the records remitted from thence to this court, as well for execution as otherwise.

The following case was stated, as of March term 1802, for the opinion of the court. The plaintiff by indenture dated 25th October 1773, granted and conveyed to the defendant, a certain lot of ground, situate on Sassafras street, between 5 th and 6th streets, in the city of Philadelphia, in fee simple, reserving a rent of 13I. fos. payable to the plaintiff, her heirs or assigns, on the 1st day of April annually for ever.

<p>Case stated.</p> <p>The argument in this cause having been resumed on the 24th March 1807, the counsel disagreed, as to the fact of a new petition having been presented to the Court of Common Pleas of Montgomery county, in August term 1800; and as it did not appear by the case stated, how that fact really was, it was proposed to ascertain it, and amend the state of the case accordingly. But the counsel not having come to any agreement as to the point to be ascertained, the argument was renewed two days afterwards.</p> <p>The arguments were substantially the same as in March term 1802 ; but the counsel for the plaintiffs made another point, that a new petition not having been exhibited in August term 1800, the bond certainly became forfeited. The only petition stated in the case was that preferred in May term 1800, and the proceedings were stayed in June until August term following, when the petition was moved to be discharged on the part of the creditors. But the petition antecedently filed could not with propriety be acted upon. The act of the 4th April 1798, (4 St. Laws 269,) refers in clear terms to a petition filed subsequent to the giving of the bond.</p> <p>To this the defendant’s counsel made no other answer, than that the case through oversight had not been fully stated. The fact was, that the first bond was utterly void by not pursuing the words of the act, and hence it was agreed that a new bond should be given to supply the defects of the former. The argument * o i *before did not proceed on the ground of a new petition, 3 9J not being filed, but that the debtor did not surrender himself in August term 1800, or give a new bond.</p> <p>The court declared, that the invalidity of the first bond formed no part of the case as stated, and to which the court were confined.</p>

It appeared by the record, that in May sessions 1801, the original petition had been presented for the road, upon which viewers were appointed. Held: that he could not be proceeded against for perjury under the bankrupt law, after it was repealed ; though the offence was committed while that act was in full foice. It cannot be said, that any civil right attached here, until the road was confirmed by the sessions.

Writ of error to the Common Pleas of Luzerne county. It appeared by the record, that the suit was brought to November term 1797. The declaration was in debt for 381I. 2s. 1 id. money of Pennsylvania, recovered in March term 1775, at Litchfield county in the state of Connecticut, as by the record, &c. appears.

This was a motion, calling on the defendant to shew cause, why an information in the nature of quo warranto, should not be filed against him, for exercising the office of a justice of the peace in the county of Adams. It was admitted, that William M'Clean was, on the 29th August 1791, duly appointed and commissioned to be a justice of the peace, in the district of Hamilton’s Bann, in the county of York.

Ejectment for a messuage and 100 acres of land, in Sads-bury township. The lessor of the plaintiff claimed as heir at law of his father Joseph Sharp, to whom the premises were devised in fee tail, by the last will of his grandfather James Sharp, dated 14th February 1777. The will was attested by three witnesses, Duncan Morrison, Samuel Martin and William Livingston.

Indictment for extortion against the defendant, as a toll gatherer for the Chestnut Hill and Spring House Turnpike Company, for receiving unlawfully from Aaron Keyser 4 cents, to permit him to pass through the gate of the company, with a sled and two horses; whereas no such toll was due to the company, the said Aaron Keyser then and there passing from one part of his farm to the other, along the road of the said company.

Writ of error to the Common Pleas of Crawford county. The writ was tested on the 28th August 1806, returnable on the first Monday in September following, which happened on the first day of the month, and the record was filed in the prothon-otary’s office on the 25th August 1807. moved to dismiss the * nl «suit. Thewritisamerenullity,notbeingreturnedtothe ^ ”1 last September term.

Writ of error to the Common Pleas of Washington county. It appeared by the record that a summons issued against James Welch for M‘Donald and Welch and John Welch to answer, &c. returnable in August term 1803. The summons was returned, served. John Welch appeared and pleaded non est factum, &c. The declaration was in these words: Washington county ss. In the Common Pleas of August term 1803.

WRIT of error to- the Common Pleas of Crawford county The declaration was in these words : Crawford County, ss. April Term 1803.

Ejectment for 319^ acres of land in Southampton township. The plaintiff claimed under an application in the name of Thomas Thompson, dated 24th February 1767, upon which it was said, a survey had been made by Robert M'Kenzie, the known assistant of Richard Tea, the deputy surveyor of the district, the same Robert being the owner of the application.

Ejectment for 560 acres of land on the south side of Juniata.

Certiorari directed to the Court of General Quarter Sessions of the peace of Chester county, to remove all proceedings respecting a road, beginning at a road leading from John Root’s to Thomas Bull’s mill, and extending to the Conestogoe road. Mr. Frazer, in behalf of the road, moved to quash the certi-orari. It does not describe the road applied for and confirmed. *Its beginning only is set forth, which is an imperfect p description.

It appeared by the record, that in May sessions 1804, the supervisors of the public roads in Palmyra township, petitioned for this bridge, whereupon six persons were appointed to view the same, and make report to the next sessions. In September and December sessions following, no return was made; but in February sessions 1805, the same viewers were re-appointed, without any continuance of the first order, or a new petition.

It appeared by the record, that the suit had originated before Abraham Shoemaker, esq. one of the city aldermen, by a summons-tested the 2d April 1805, returnable on the 9th April, John Flowers v. Thomas Bradley, indorsee of John Flowers, and that judgment had been entered by default for the plaintiff below, for $32.78 cents debt and 50 cents costs. On the 29th April, the defendant claimed the benefit of his freehold, and obtained it.

The suit was in trespass for an assault and battery, brought to September term 1800 ; and the defendant pleaded not guilty, with leave to give the special matters in evidence. After a trial had by the plaintiff against John Dunlap, who was implicated in the same trespass, it was agreed, that the other defendants, against whom separate suits had been brought, might plead any matter afterwards, which they might plead on the 9th December 1805.

This cause was tried at the last sittings in July 1806, upon a collateral issue of the same kind, and for the same cause of action, *as the one herein before stated.

moved for leave to enter his verdict on the second count in the declaration, to which the evidence was immediately applicable. The declaration consisted of three counts ; the first and second were laid in different ways in special assumpsit; the third count was for money had and received. The money received was said to have been received since the commencement of the suit. opposed the motion.

The fieri facias was returnable to July term 1807, and was levied on 30 ■ acres, more or less, of land, situate near the Oxford road, eight miles from Philadelphia. The lands were condemned by an inquisition, taken in the city on Saturday the 25th July; but when the same was returned into the prothonotary’s office did not appear.

The cause was tried before Mr. Justice Smith, at a court of Nisi Prius held on the 2d December 1807, when a verdict passed for the plaintiffs for 27,707 dollars and 37 cents ; and two questions of evidence were reserved at the trial.

This suit was brought on a note for 2500 dollars submitted by the defendants. It was submitted to reference and the referees awarded to the plaintiff $4424 and 16 cents costs. Several exceptions were filed to the report; but upon the argument, all were abandoned, except the one following in these words.

<p>A set off must be between the same parties.</p> <p>New trial not grantable, on the ground of new evidence, which it was the fault of the party or cestui que use, not to have produced upon the trial.</p> <p>Cited in 5 S. & R. 470 to show that there can be no set-off, unless both debts are respectively due, between, exactly, the same parties: See Stewart v. Coulter, 12 S. & R. 252.</p>

<p>Indebitatus assumpsit will not lie for an insurance premium. A parol insurance is valid. Semble.</p> <p>Though a judge on the trial should declare that the evidence did not support the action, it is no ground for a new trial* unless he persists in that opinion.</p>

Case stated for the opinion of the court. A fieri facias issued in this action, returnable to September term 1805, which on the 10th June 1805, was levied on personal property as per inventory. The debt was 430I., with interest from 28th January 1805.

It appeared by the record returned, that at February sessions 1804, the road had been applied for by petition, and viewers appointed ; at May sessions following thé viewers- reported that the road was necessary for public use ; at August sessions fob lowing, a review was prayed for, upon which- Samuel Evans was appointed one of the reviewers, which said Samuel had with six others signed the original petition for the road ; and a return having been made at November sessions…

Writ of error to the Common Pleas of Berks county. It appeared by the record returned, that a suit had been * „ -j brought *by James Wilson, esq. against John Lewis Bard, 4 in the same court; and that on the 18th May 1798, by consent, all matters in variance between the parties were referred to Valentine Eckert, Jacob Bower, Rees Moore, Daniel Buckley and Samuel Morris, or any three of them ; and it was agreed, that the names of Ann Bard and Robert A. Farmer, administrators…

Motion to take off nonsuit, had before Mr. Justice Bracken-ridge at Nisi Prius on 23d November last. He now reported the evidence given in the cause. The suit was indebitatus assumpsit for money had and received by the defendant, to the use of the intestate, under the following facts. On the 25th November 1801, Robert Moffat purchased a lot of ground in Southwark, which was sold by the defendant as sheriff of Philadelphia county, for $130.

This was an amicable action entered in the Supreme Court September term 1803, to recover compensation for certain lands in Luzerne county, under the 9th section of the act of 6th April 1802. 5 St. Laws 205.

<p>Ejectment for lands, on the south side of Buffaloe creek. There were about 30 acres in dispute, the controversy being confined to the division line between the two farms.</p> <p>M'Creary was the tenant of Samuel Dale, whose death had been suggested. Both parties claimed under descriptive applications, entered in the secretary’s office on 3d April 1769, the plaintiff under Thomas Foster, No. 675, the defendant under an earlier number, No. 206, in the name of James Fleming, each calling for 300 acres of land. Both applications were surveyed on the 12th August 1769, and it appeared from the field notes of William Maclay, who made the surveys, that 331 acres were surveyed under Fleming’s application. The division line between the two tracts was called therein, S. 10o E. 384 perches, and was marked regularly on the ground. But Maclay finding upon calculation, that only 272 acres remained for Foster’s application, returned a survey for him for 300 acres, 36 perches, calling the division line of the two tracts, S. 14!° E. as made on the 12th August 1769. On the 3d June 1776, a patent issued thereon to Thomas Rees, in whom the right of Foster became * -| ^vested by divers transfers; and on the 24th October 495J 1800, Rees and wife conveyed the premises to the lessor of the plaintiff, in consideration of 370I.</p> <p>Maclay having made no return on Fleming’s application, a survey was made thereon of 303 acres, by Joseph Wallis, on the 28th May 1785, calling the course S. 14I0 E. between the two tracts, but the line was not marked; and a patent according to the draft returned, issued to Fleming, on the 5th December r7815. who afterwards conveyed the same 303 acres to Samuel Dale, by courses and distances, on the 18th October 1786, in consideration of 600I. excluding the lands in question.</p> <p>It appeared by parol evidence, that Fleming had first settled in 1773, on the disputed gore of land, had erected a small cabin there, in which he lived, and had cleared four or five acres, which he cultivated and held in his possession until he sold to Dale. He afterwards moved higher up the stream and built there. Dale in 1801, built a good square double log barn, on the disputed part, which cost him from 150I. to 200I. and a lane was occupied on each side by the different claimants. But at this time, Gray knew nothing of the lines of the tract he had bought the fall preceding.</p> <p>The present ejectment was brought to January term 1804.</p>

Writ of error to the Common Pleas of Luzerne county. The record appeared thus: A summons issued in debt for 381I. 2s. xid., returnable to November term 1797, which was returned served by the sheriff; whereupon Mr. D. Smith appeared for the defendants, prayed oyer of the writ, record, and special imparlance.

It was an action of slander, tried at Harrisburgh, before Yeates and Smith, Justices, on 3d October 1799, at Nisi Prius, when a verdict passed for the plaintiff and $55 damages were assessed. The words charged, were words asserting before a justice of the peace of Dauphin county, that the plaintiff had been guilty of forgery in erasing and altering the time of payment in a note payable to himself.

The cause was tried at Sunbury, on the nth October 1804, before Shippen, late C. J. and Brackenejdge, J., and a verdict passed for the defendants. The court overruled a motion for a new trial. The ground of appeal was, that the court had refused in evidence, the depositions of Jeremiah and Jesse Simpson, taken under a rule of court pending the suit, during the life time of their father, John Simpson, the cestui que use.

Writ of error to the Common Pleas of Dauphin county. It appeared by the record, that the defendants in error had brought an action of account render against the now plaintiff, and had declared against him as their bailiff of several specific articles and of cash to merchandize, and make profit for them.

From the record it appeared, that John Kyle had petitioned for a road from his house to the Penn’s Valley road, at August sessions 1804. Viewers were appointed thereon, but no return having been made at November sessions following, the order was continued.

Writ of error to the Common Pleas of Cumberland county. The facts on the writ of error and record returned, appeared as follows : The defendant in error recovered the lands in question on a trial in October term 1797, wherein a bill of exceptions was sealed. Judgment was rendered the same term ; whereupon a writ of error was brought in the Supreme Court, and the judgment reversed and restitution awarded, in December term 1799.

Writ of error to the Common Pleas of Northumberland county. The case was this, as stated by Mr. President Cooper, in his written opinion filed, agreeably to the act of assembly. The suit was brought in debt on bond. Plea payment with leave to give the special matter in evidence.

The cause was tried before Bracrenridge, Justice, at Harrisburgh, on the 24th October 1806, and a verdict given for the plaintiff for $150 in an action of slander. A motion for a new trial was made, but the same was overruled. now urged several grounds for awarding a new trial; and among others, that the deposition of Susannah Wray had been read in evidence on the trial on the part of the plaintiff, though opposed by the defendant.

Writ of error to the Common Pleas of Franklin county. This was an action of deceit on the exchange of the plaintiff’s grey gelding for the black gelding of the defendant, the plaintiff all edging a warranty on the part of the defendant, that his horse was sound, though in fact he had slipped his shoulder. The cause was tried at Chambersburgh on the 5th November 1803, when the following bill of exceptions was sealed by the court.

WRIT of error to the Common Pleas of Cumberland county, to remove certain proceedings had before two justices of the peace, under the landlord and tenant act, and affirmed after-wards in that court upon a certiorari. It appeared by the record returned, that the warrant of the justices was in these words : Cumberland County, ss.

Appeals from the decision of the Circuit Court of Franklin county. The case was this : Henry Pawling of the same county, died in February 1794, intestate and without issue, leaving a widow, who afterwards intermarried with Price the plaintiff; and an only sister his heir at law who had been married to the defendant. He died seised of valuable lands, but much indebted.

WRIT of error to the Common pleas of Crawford county. A bill of exceptions was sealed on the trial, on the 28th March 1807, the substance whereof was as follows. The defendants offered in evidence, that they had carried for the plaintiffs from Pittsburgh to Waterford, 16 barrels of whiskey, at $3 per barrel.

The plaintiff claimed as an actual settler, under the act of 3d April 1792, 400 acres west of the river Allegheny. The cause was first tried before Yeates, Justice, on the 2d October 1806, when a verdict having passed for the plaintiff, a new trial was awarded. A second trial was had before Tilghman, Chief Justice, on the 1st October 1807, when the jury found for the defendant, and a motion for a new trial was overruled; whereupon this appeal was brought.

Writ of error to the Court of Common Pleas of Crawford county. It appeared by the record, that the suit was in slander, charging words of perjury. It was tried at Meadville, on the 16th October 1802, when the jury gave a verdict for the plaintiff below, and assessed damages at five dollars, with six cents costs. Judgment was entered thereon, and a ca. sa. issued to January term 1803, for the damages, together with $91 38 cents costs.

<p>Agreement to argue a case before the judges of the Circuit Court and their opinion to be conclusive, if the agreement should come on before one judge of the Cir-cu:t Court by mutual consent, upon a change of the judiciary system, no appeal -will lie to the Supreme Court, from the decision of such single judge.</p>

Mr. Baldwin, for the defendants in error, moved the court, to amend the recognizance of bail taken before Mr. Justice Brackenridge, by striking out of the same, the words “the “ commonwealth of Pennsylvania,” and inserting in lieu thereof “James Vanbebber and William Chambers,” and also adding the words “and John Welch,” The recognizance had been given to the commonwealth, instead of the plaintiffs below; and the name of John Welch, against whom the judgment had been…

Writ of error to the Common Pleas of Bedford county, returnable to September term 1807. It appeared by the record, that the ejectment was instituted to February 1806, and returned served; whereupon a rule was entered to plead in six weeks or judgment. The defendant in the record was Gardiner, and Mr. Hamilton’s name was entered in the margin, as his attorney, but his appearance was not entered at large,, nor any plea or entry into the common rule.

The cause was tried before Judge Smith, on the 8th October 1807, when on the plea of payment to a bond, without giving thirty days notice of the special matters intended to be objected in avoidance of the same, the defendant offered testimony of a' total want of consideration, which the judge overruled, and a verdict was thereupon found for the plaintiff.

A bill of exceptions had been filed on the trial of the cause on the 5th May 1808, which stated with great minuteness the written as well as parol testimony adduced on both sides, together with the charge of the court.

The cause was tided before the chief justice on the 3d October 1807. Held: until the commencement of this ejectment on the 15th February 1802 ; or that any force or threats were used, which might deter or prevent them from making an actual settlement on the land.

Ejectment. Writ of error to the Common Pleas of Somer set county.