Volume 43 — Pennsylvania State Reports

<p>Error to the Common Pleas of Susquehanna county.</p> <p>This was a feigned issue directed by the court below to try the validity of a judgment entered on the records of the court against A. N Lancaster and Oramal Brown, in which William Travis was plaintiff.</p> <p>William Travis, the plaintiff, resided in Luzerne county. A. N. Lancaster and Oramal Brown, the defendants, resided in Susquehanna county. Brown was a stranger to Travis. Lancaster wished to borrow money of Travis, who required security. Lancaster thereupon produced a note to which his name and that of Oramal Brown was written; and on it the money ($600) was loaned. The note in controversy, which was in renewal of this note, and a further advance, making together $700, was dated November 8th 1858, payable one year after date. ^ March 13th 1860, judgment was entered thereon and a fieri facias issued. Defendant, Brown, then made affidavit that he never signed the last-mentioned note; the judgment was thereupon opened and he was let into a defence.</p> <p>On the trial of the issue, the defendant “ offered to prove, by O. L. Ward and others, experts, that the signature of Oramal Brown to the note in dispute was written.by the same hand that wrote the body of the note and the signature of A. N. Lancaster thereto; also, that the signature of Oramal Brown to said note was in a feigned and simulated hand, in witnesses’ opinion.” To which evidence the plaintiff objected; but the court overruled the objection, and admitted the evidence. The defendant, having proved his signature to two papers that were given in evidence, “ offered to prove, by D. R. Lathrop, an expert, that the signature or name of defendant on the note in controversy was not written by the same person who wrote the same name on the two test papers already in evidence.” To which evidence the plaintiff also objected. The court overruled this objection also, and admitted the evidence.</p> <p>After having given some other testimony, the defendant offered to read in evidence the depositions of John M. Brown and Jesse Dix, taken before A. J. Seymour, Esq., November 17th 1860, on the rule to show cause why the judgment should not be opened, &c., on five days’ notice; to which the plaintiff"objected, because no rule had been entered for taking said depositions, other than a certified copy of the rule to show cause, &c.; the rules of court requiring a rule to be entered for taking depositions, and that, when they are to be read on the trial of a cause, ten days’ notice shall be given. But the court overruled the objection, and admitted the evidence. The defendant then rested.</p> <p>The plaintiff, in rebutting, then proved, by the testimony of several witnesses, what Brown had said in relation to his having signed notes for Lancaster, to the plaintiff. He then read in evidence the deposition of Lucy Lancaster, taken on a rule and notice regularly entered and given, to prove that Brown did sign a $700 note, at or about the time the note in controversy purports to have been given, and the circumstances connected therewith, and then closed his evidence;</p> <p>The defendant, .for the purpose of impeaching the evidence of Lucy Lancaster, offered “to prove, by the witnesses who heard the testimony of Lucy Lancaster before Judge Bead, on the hearing there of this case, that she did not testify one word about seeing the defendant sign the note in controversy, but that she then testified she did not see him sign it.” To this evidence the plaintiff objected, but the court admitted the evidence. Several witnesses were then called to this point by the defendant, who then closed. The case was submitted to the jury under the charge of the court, and the verdict was for the defendant, on which judgment was entered.</p> <p>The plaintiff thereupon sued out this writ, and assigned for error,</p> <p>1. That the court erred in admitting the evidence of O. L. Ward and others, experts, to prove “that the signature of Oramal Brown to the note in dispute was written by the same hand that wrote the body of the note and the signature of A. N. Lancaster thereto; also that the signature of Oramal Brown to said note was in a feigned and simulated hand, in witnesses’ opinion.</p> <p>2. In admitting the evidence of D. B. Lathrop, an expert, “ to prove that the signature or name of the defendant, on the note in controversy, is not written by the same person who wrote the same name on the two test papers already in evidence.”</p> <p>3. In admitting the depositions of John M. Brown and Jesse Dix.</p> <p>f,4. In admitting evidence to'prove, “by the witnesses who heard the testimony of Lucy Lancaster before Judge Bead, on the hearing there of this case, that she then did not testify one word about seeing the defendant sign the note in controversy, but that she then testified she did not see him sign it.”</p>

<p>In action against Directors of a Corporation, Charter must be given in evidence by Plaintiff. — Amendment of Declaration, when in admissible.</p> <p>1. In an action against several parties alleged to have been directors and officers of a chartered bank, to recover on bills issued by them which had become worthless, it is incumbent on the plaintiff to prove the charter, where, under the act of incorporation, a charter was necessary to create the hank a body corporate.</p> <p>2. Where the cause of action, as set out in the narr. of the plaintiff, was for the mismanagement of the defendants in conducting a lawfully established hank, an amendment to the declaration, setting forth that the alleged hank never was legally chartered, hut was a pretended institution, and that the defendants acting as directors had circulated large amounts of their promissory notes, to be used as money, &c., is not allowable, because a new and distinct cause of action would be thereby introduced.</p>

These were appeals by William S. Halsey, administrator, &c., and John Moss, from the decree of the Common Pleas, in the matter of the account of James Dundas and Benjamin Kugler, surviving trustees of the North American Land Company.

This was an issue under the Sheriff’s Interpleader Act, in which Samuel Shuman was plaintiff and William Rice defendant, to try the right of property to one hundred and ninety-nine and a half sides of leather, which were taken in execution by the sheriff at the suit of Prichett, Baugh & Co., for the use of William Rice, as the property of Jacob Bixler and Joseph D. Simonton, late partners trading as Bixler & Simonton.

This was an appeal by Mary Newcomer, executrix of Martin Newcomer, deceased, from the decree of the Orphans’ Court in the matter of the petition of J. R. Tankersly to have the cancellation on a bond given in the Orphans’ Court, by H. Easton and M. Newcomer, stricken off. The case was this: — H. Easton was appointed guardian of Martha A. Shrader (afterwards wife of the petitioner Tankersly), and gave bond on the 4th of June 1850, in $1200, with Martin Newcomer as security.

<p>Error to the Common Pleas of Lancaster county.</p> <p>This was an issue to try the validity of a writing, purporting to be the last will and testament of Louisa Youngheim, deceased, in which John Eckert was plaintiff, and Mary E. Elowry, a daughter of testatrix, was defendant.</p> <p>On the trial the plaintiff proved the proper execution of the will, and it was admitted in evidence. The defence alleged great mental imbecility in the testatrix, coupled with undue influence and actual duress, exercised upon her by the plaintiff, thereby creating an unfounded prejudice against the defendant, and resulting in the execution of this will. In support of these allegations a number of witnesses were called, who testified to their acquaintance during various periods of time with the testatrix : that she was of weak mind, short memory, and, assigning various reasons for their judgment, that she was unfit to make a will. In addition to this, the defendant offered to prove the condition of the testatrix, her acts and declarations, as well as the conduct of the plaintiff at times subsequent to the execution of the will, in order to establish the allegation of undue influence and actual constraint practised by the plaintiff upon the testatrix. This evidence was admitted under exception on the part of the plaintiff. No evidence was produced of facts or (recurrences tending to produce undue influence or duress previous to the execution of the will in question.</p> <p>The plaintiff, in rebuttal, proved by the subscribing witnesses to the will, that the testatrix, although aged and physically infirm, was, at the time of the execution of the will, possessed of an active mind and memory, and fully understood the disposition she was making of her property. These and other witnesses testified to business transactions with the testatrix, both before and after the execution of the will, in which she displayed full capacity, and that the defendant had also treated her with harshness.</p> <p>The court were requested on behalf of the plaintiff to charge the jury,</p> <p>1. That if the jury believe that Mrs. Youngheim had, at the time of executing the instrument in controversy, a full and intelligent consciousness of the nature and effect of the act she was engaged in; a full knowledge of the property she possessed; an understanding of the disposition she wished to make of it by the will, and of the persons and objects she desired to participate in her bounty, the instrument is proved to be her last will and testament, and the plaintiff is entitled to their verdict in his favour.</p> <p>2. The wills of aged and infirm persons are perfectly good, although, when compared with their condition in the vigour of life, the minds of such testators may seem relatively enfeebled: provided their mind and memory are active enough to enable them to understand and direct the dispositions contained therein.</p> <p>3. The opinions of witnesses of the unfitness of testatrix to make a will are entitled to but little weight in opposition to the testimony of the subscribing witnesses, and that of those who were around her at and about the time of its execution. The presumption of law is always in favour of sanity; and is not rebutted by opinions of persons ignorant of the legal standard of testamentary capacity.</p> <p>4. Eccentricities of conduct, violence of temper, or resentfulness of disposition, do not incapacitate from making a will; and even when a will is characterized by such qualities, proof of their existence in the testator goes rather in support of than in opposition to the will.</p> <p>The court below (Hayes, P. J.), after stating the main facts of the case, charged as follows : — “ It is as a general proposition true, that more reliance should be placed on the statements of subscribing witnesses than others who are not subscribing witnesses, nor were present at the signing of the will. It is also true, that the presumption is in favour of the sanity or capacity of a testator. But notwithstanding these general observations, it is the province of the jury to canvass all the testimony in the case, so as to decide the issue according to the whole evidence. If they decide here that Louisa Youngheim was not of sound and disposing mind, memory, and understanding, at the time she signed this paper, they will determine the issue by finding for the defendant. But should the jury find that she was capable of making her will, they will next inquire as to the strength of her understanding, whether she was so enfeebled by age as to be easily prevailed upon to make a different disposition of her property, from what she would of her own accord have done. This point you will also determine according to all the evidence. If you should come to that conclusion, [you will then consider whether she was in fact unduly influenced by John Eckert, the plaintiff (for that is asserted), to make the will in question, by which her daughter is deprived of any participation in her estate, and the same was left to her more remote descendants. Should it be your opinion that from his intercourse with her exercising a stronger judgment and will over her enfeebled mind, he improperly induced her to cut off her child from the benefit of her worldly goods and property — in short, to make the devise as he directed, not according to her independent will and wishes, you would be justified in finding for the defendant,] in effect, that this is not the will of Louisa Youngheim.</p> <p>“ [The conditions of mind set forth in the first point, are such as indicate a sufficient capacity in a testator to make a will: it does not require any grOat degree of sagacity to do that; and it may be stated, that a person who has mind enough to transact his own business, is legally capable of making a will. Still the question recurs, should you be of opinion that Louisa Youngheim had capacity sufficient for that purpose, whether her mind was or was not so weak, in consequence of her great age, or other circumstances in evidence, as to be easily misled and unduly influenced, and whether she was or was not influenced by the plaintiff. According as you find on these points, should be the verdict on the issue you are trying.]</p> <p>. “In answer to the second point of the plaintiff: There can be no doubt that the mind of a very aged person may have much failed compared with its strength in the vigour of life, and yet be capable of making a valid will. In most instances the mind and memory give way with the decline of the body. There are some exceptions, but where there is sufficient memory and understanding left to comprehend the property, that is, the items of which it consists, and also the persons to whom the testator designs to give it, there is in such a case a sound and disposing mind, memory, and understanding.</p> <p>“In answer to the third proposition: The opinion of no witness except a subscribing witness to the will, is entitled to any weight, but in connection with and as corroborated by the facts which the witness testifies to as the ground of his judgment. This distinction in favour of the subscribing witnesses, is founded upon the duty which the law requires of them to be careful and observe that the testator is of sound mind, hefore they put their names as witnesses to the instrument; for on being called upon to prove the instrument, they, in order to prove it, must swear that the testator was, at the signing thereof, of sound and disposing mind, memory, and understanding. Therefore, if there were two other witnesses of equal judgment and veracity, not being under the same obligation to scrutinize the condition of the testator, nor having the same opportunity unless they happened to be present at the time, the preference should be given to the subscribing witnesses. Yet there may be circumstances which overbalance this preference. The subscribing witnesses may be of inferior intelligence and capacity — prejudiced and perverse or otherwise deficient in qualifications to inspire confidence, and the jury may not be able, notwithstanding their opportunity, to believe their statements or accept their opinion. In this case there is a singular incident which deserves the consideration of the jury. Mr. Livingston was called upon by Louisa Youngheim (for whom he had been frequently employed professionally) to draw her will. He went to her hojfse to obtain the proper instructions from her, made notes of her directions, returned with them home, and prepared the instrument, which he after-wards took with him to her house, where, in presence of these two subscribing witnesses and of John Eckert and himself, she executed the will which he had written for her, these identical witnesses signing it as subscribing witnesses. He remembers reading this will to her, but not in the presence or hearing of the witnesses (for that he says is not his practice), and its being explained by Mr. Eckert to her, and he also recollects, after it was executed, wrapping it in an envelope, endorsing and leaving it with Mr. Eckert, who was appointed executor in it. The will given in evidence in this case, being shown to Mr. Livingston, he testifies that he never saw this paper until he saw it here in court; and this paper is written by John Eckert, the plaintiff. Now the subscribing witnesses swear distinctly that they signed as witnesses but one paper as the will of Louisa Youngheim, and that this is the paper which they signed. They also swear that Mr. Livingston read and explained this paper on that occasion in their presence, whereas he declares that he never saw it before it was produced here in court. The defendant’s counsel contends that this is a contradiction which cannot be reconciled or explained; the plaintiff’s counsel urges that Mr. Livingston may, in the multiplicity of business, have forgotten the facts. If you can reconcile these conflicting statements, consistently jvith the integrity of the witnesses, you should do so; but, if you cannot, and if it should he your opinion, that these witnesses did sign as subscribing witnesses the will prepared by John B. Livingston, and that he did not read and explain that paper to them or in their presence — much less the one in evidence which he says he never saw until it was shown to him here, you will consider whether that declaration on this point is true, and if not true, whether they believed it to be true; for if they made it knowing it not to be true, then there is a principle of law applicable to their testimony which may be stated thus : false in one particular, false in all. A witness undoubtedly may honestly mistake a fact from imperfectly observing or imperfectly remembering it to be a fact of such a nature that the misstatement is intentionally false — the witness forfeits all claim to belief. The credibility of testimony is peculiarly within the province of the jury, whether doubts upon the subject arise from prevarication, contradiction, or conflict of evidence, inconsistency, or any other cause; and in making these remarks, the court do not intend to indicate tlicir opinion on the facts or the effect of the testimony, but to aid you in applying the principles of evidence as cited from the authorities, so that you may decide the issue truly, according to the evidence in the case.</p> <p>“I answer to the fourth proposition. It must be conceded, that there is much reason in the theory of this proposition. Persons of very superior intellect, are sometimes distinguished by their eccentricity as well as by violence of temper. These qualities do not of course incapacitate them, and they may, indeed, as the proposition asserts, rather fortify than weaken the support of a will, for whether such persons are moved by obstinacy or firmness in their intended disposition of their property, their pertinacity generally loaves no room to doubt their intentions.”</p> <p>Under these instructions there was a verdict in favour of the defendant. The plaintiff- thereupon sued out this writ, and averred here,</p> <p>1. That the court erred in admitting in evidence the following testimony of Mary Ericker — “About a year before Mrs. Younglieim’s death (more than two years after the execution of her will), Mr. and Mrs. Eckert were in there. Mrs. Eckert asked me if I would stay awhile; I said yes. Then Mr. Eckert said he would lock the door so that nobody could get in: then I left. I didn’t want to be locked in. Nobody was left with the old lady.”</p> <p>2. The court erred in admitting in evidence the following testimony of Mary Miller — “ Two or two and a half years ago I frequently went to visit her, and then Mr. Eckert forbade me going to her. That she commenced talking about her troubles; said she couldn’t keep her mind together. Mr. Eckert came into her house, took her $100 away,” &c.</p> <p>3. The court erred in admitting in evidence the testimony of Mary Miller, after detailing the conversation as set forth in the previous error, which occurred two or two and a half years before the trial (at least a year after the execution of the instrument), in answer to the defendant’s question, “ from what you have stated, do you consider she had capacity to make a will ?” “ No, I say again she was not fit,” &c.</p> <p>4. The court erred in answering the plaintiff’s first point.</p> <p>5. The court erred in charging the jury as above in brackets.</p> <p>6. The court erred in presenting the question of undue influence to the jury, there being in the case no evidence, direct or inferential, of any undue influence having been exerted by the plaintiff upon Mrs. Youngheim to induce her to execute the will in controversy.</p>

<p>Pardon of Offence and Conviction, effect of on Sentence of Quarter Sessions.</p> <p>1. A pardon by the governor of a person eonvieted of fornication and bastardy, when pleaded before sentence, discharges the defendant from liability for costs as well as for the maintenance of the'bastard child.</p> <p>2. The order of maintenance is a part of the sentence; and until it is pronounced, the right of the prosecutrix to the periodical payment of money does not vest: hence, where the defendant was pardoned before sentence, the court had no power to make an order of maintenance.</p>

<p>Bond of Mamed Woman, with all proceedings thereon, absolutely void.</p> <p>1. The bond of a married woman is absolutely void, and so is any judgment on it, whether by warrant of attorney or otherwise.</p> <p>2. A married woman owning real estate in Pennsylvania, sold part of it, and with the proceeds of the land, and of a note given by her, bought property in Maryland and removed there: for this note there was substituted a bond and mortgage upon her remaining land, the proceeds of which on a sale did not discharge the mortgage, but left a deficiency for which the holder of the bond issued a foreign attachment against her. Held, that as the debt was not within any of the provisions of the Act of 1848, or covered by any of the decisions of the courts under that act, the action could not be maintained.</p>

This was an appeal by Augustus Duncan, Calvin M. Duncan, and William A. Duncan, from the decree of the Common Pleas on a hill in equity filed by John W. Reges against them and Mary W. Roges, wife of complainant.

This was a scire facias sur recognisance in the Orphans’ Court on the partition of the real estate of Abraham Keagy, deceased, in the name of the Commonwealth for the use of Christian Keagy, now for the use of O. E. Shannon, against Philip Keagy and Jacob Hippie, with notice to Thomas Johnston, terre-tenant, in which the following case was stated for the opinion of the court:— • On the 20th February 1843, proceedings were had in partition on the estate of Abraham Keagy,…

■ This was an appeal by Simon Hess and John Hess, two of t-he sons of Michael Hess, deceased, from the decree of the Register’s Court of Lebanon county; composed of Hon. John J. Pearson, P. J., William Rank, and Thomas Kramer, associate judges, and Henry Bross, Register of Wills of said county; confirming the decision of the register, admitting to probate a paper purporting to be the last will and testament of deceased.

This was an action of covenant, brought November 5th 1859, by Daniel R. Clymer, for the use of William Strong in' trust for Elizabeth Norton, and for the use of Dr. Charles H. Hunter, in trust; against Thomas Jackson, Samuel Frees, John Kissinger, Thomas McCombs, Daniel Miller, Daniel Houston, Charles D. Geiger, Henry B. Boyer, Thomas Rambo, Peter D.. Getz, John Fehr, and Michael Nunemacher.

<p>Appeal from the Orphans’ Court of Berks county.</p> <p>This was an appeal by Francis B. Shalter and Jacob S. Ebling, who were trustees in the administration bond of George Fox, administrator de bonis non cum testamento of John Miller, deceased ; from the decree of the Orphans’ Court directing said Fox to pay to Susanna Maurer $446.16, the accrued interest on the sum of $1433.69, which was adjudged to be in his hands for her use during life.</p> <p>The case was this: — On the 12th day of September 1836, John Miller, late of Oumru township, Berks county, made his will, ■proved November 21st 1836, of which he appointed his sons John and Elijah Miller and his brother Sebastian Miller the executors, and to whom letters testamentary were granted.</p> <p>By his will testator directed his personal property to be sold for the payment of his debts, and devised to his wife for life the house in which they lived, and one-third of the rents, issues, and profits of such of liis lands and tenements as should be directed not to be sold by his executors; he then directed that his lands directed not to be sold should be valued and appraised, after his youngest son Reuben had attained his majority, and from thence Ids wife was to receive the interest of one-third of the valuation-money ; he directed an equal division to be made of his whole estate amongst his seven • children and their representatives, except William’s children, who were to receive only half, as much as testator’s other children. The testator further directed as follows : In regard to the share coming to my son Benjamin, my will is that the whole of it remain in the lands to be valued, and he to receive yearl-y interest arising therefrom for his maintenance and support, the principal to go to his heirs, if he have any, and if none, to his brothers and sisters and their heirs and representatives, William’s children again only to receive one-half of a share as before stated. And in regard to the share of my daughter Susanna, intermarried with John Maurer, I order and direct that it remain in like manner charged upon my lands and tenements, the yearly interest thereof to be paid to her, or to her order, during her life, and after her death the principal to be paid to her children or their legal representatives.</p> <p>The testator then directed that when Reuben attained his age of twenty-one years, all his lands not to be sold should be appraised and valued by seven men, and directed how they should be chosen, and that they might be accepted and refused as though he had died intestate, subject however to all the regulations and provisions that I have hereinbefore made respecting them. “ These lands are, the farm at the spring with the tannery on it; the thirty-two acres just above the spring; the storehouse occupied by my son Elijah; the tract of .chestnut land which I own with Michael Ruth; and the other tract that joins Adam Spohn’s land, and the hill land above Hannes Young’s.”</p> <p>He then ordered “ all the rest of his real estate to be sold at public sale by his executors, as soon after his decease as may be according to their best discretion, so that it be ‘ done within one year after his decease,’ empowering them to make conveyances therefor;” and further he directed that, “ In regard to the real estate left to. my beloved wife, as above stated, my will is that after her decease the same be disposed of among my children and their representatives, according to the same principle and provision as I have laid down relative to the disposition of my other real estate that is not to be sold by my executors.”</p> <p>In 1837, and within a year from the death of the said testator, the executors sold to Jacob Rollman, a tavern stand and several tracts of land, under the authority given by said will, for the sum of $2850.</p> <p>The inventory of the personal estate was filed December 17th 1836, and amounted to $15,423.97. Elijah Miller, one of the executors, filed his account, which was audited, on the 9th day of November 1839, showing a balance of $2777.17 in his hands, including proceeds of said sale to Jacob Rollman.</p> <p>Sebastian Miller, another of the executors, filed his account on the 8th day of November, A. d. 1838, in the register’s office, showing a balance of $467 due to him, which account was confirmed January 11th, A. D. 1839, and he was discharged April 5th 1839. '</p> <p>It does not appear that Elijah Miller and John Miller, the other executors, were ever discharged by the court, although théy acted as executors, and received moneys belonging to the estate. John Miller never rendered an account of his administration of the estate.</p> <p>On the 9th November 1839, the register, in his minutes, has this entry: “John Miller, Elijah Miller, and Sebastian Miller, having renounced.”</p> <p>Same day, letters of administration on the goods, chattels, and credits of said deceased unadministered, with his will annexed, were granted by the register to George Fox, who, with Francis B. Shalter and Jacob S. Ebling as his sureties, entered into a bond in the common form of an original administration bond in case of intestacy to the Commonwealth in the sum of $20,000.</p> <p>Partition and valuation were made in the Orphans’ Court of the real estate directed to be appraised, and six tracts thereof not having been accepted at the valuation, the Orphans’ Court, on the 11th day of November 1839, granted to George Fox, as administrator, Avith the will annexed, &c., an order to sell said tracts, which he accordingly did on the 30th November 1839, for $18,076.97, subject to the widow’s third, and subject also to the shares of Benjamin Miller and Susanna Maurer in said purchase-money.</p> <p>In 1840, said George Fox, as administrator, Avith the will annexed of said John Miller, deceased, without any order from the said court, sold certain other of the real estate of said deceased, directed in and by said will to be sold by the executors thereof, as folloAvs: five purparts for various sums, in all amounting to $2347, and delivered to the purchasers deeds for the same. He also, as administrator as aforesaid, received of the goods, chattels, and credits of said estate, according to his accounts filed and confirmed by the court, the sum of $5857.53, and paid debts and expenses of administration to the amount of $5414.08, leaving in his hands, of the personal estate, the sum of $443.45.</p> <p>In 1856, he left his home in the county of Berks. On the 31st day of May of the same year, Susanna Maurer presented ■to the Orphans’ Court of Berks county her petition for a citation, Avhich was aAvarded, returnable August 8th 1856, and Avas served on the appellants. The petitioner claimed that under a report of auditor upon the account of said George Fox as administrator as aforesaid, she Avas entitled to the annual interest, during her life, on $1433.69, under the will of her father, the 'said John Miller, deceased; that the interest up to April 1st 1856 Avas $516.12, and that George Fox had paid to her on account $242.02, leaving due to her $274.10, and praying an order on him to pay her that money, and in default thereof that an execution be awarded.</p> <p>August 2d 1856, appellants answered this petition.</p> <p>February 28th 1857, Susanna Maurer presented another petition to the court, praying an order on said George Fox for payment of said sum of $274.10, and after reciting the will of said testator, and (inter alia) the directions therein, that the share of his daughter, the said Susanna Maurer, in his estate, should remain charged upon his lands and tenements, the yearly interest thereof to be paid to her, or her order, during her life, and after her death the principal to be paid to her children or to their legal representatives, the petitioner proceeded to state that said George Fox, as administrator as aforesaid, under and by authority of said Avill, sold divers tracts of land to divers individuals, naming them and the several sums of money payable by each of them, and amounting to the sum of $2347; and that, according to said last Avill and testament, her share in the purchase-money of said real estate Avas to remain charged on the same, and the yearly interest thereof was to be paid to her annually during her natural life, and the principal at her death to her children or their legal representatives; and further that of the interest thus directed to remain charged on said real estate, and to be paid to her, there was due and unpaid to her, on the 1st day of April 1856, the said sum of $274.10; and praying the court to grant a citation to said George Fox and to the purchasers and owners of said lands, to wit, George Ruth, John Haas, John Yost, Benjamin Wart-man, Peter Zimmerman, and George Kindy, to appear and show cause why an order and decree should not be made that said George Fox should pay said money to petitioner, and requiring said George Ruth and other purchasers and owners of said lands to show cause why an order and decree should not be made by said court that they pay to petitioner the said sum of $274.10, in the manner and proportions .which the court should deem just and right, and in default of such payment to show cause why an order and decree should not be made to raise said sum of money by a sale of said lands or such parts or portions thereof as to the court should appear to be sufficient, just, and equitable: praying also that said citation might also be served upon the appellants. A citation hereupon was awarded and served upon appellants and said purchasers of lands, returnable April 17th 1857, when the court ordered that the answers put in by appellants to first citation should be taken as an answer to this also.</p> <p>There were several points presented to the court below and here, in answer to the petition of Mrs. Maurer, some of which were not pressed on the argument, and are not noticed in the opinion of this court.</p>

This was an action of assumpsit by Milton, W. Locke and Jacob Snyder, for the use of George F. Steel, against William T. Daugherty and John G. Hartley, to recover a balance of $1300, claimed to be due on a contract for furnishing and laying the plank on the road of the Hopewell and Bloody Run Plank and .Turnpike Company, which it was averred had been built by defendants after the company became insolvent.

Pleas of York county. This was an appeal by Joseph Straley, administrator of John Straley, deceased, from the decree of the court distributing the proceeds of the sheriff’s sale of the interest of George Snodgrass in the real estate of his deceased father, William Snodgrass. The case was this: — George Snodgrass was largely indebted, and judgments were entered against him in the Court of Common Pleas of York county.

These were two actions of ejectment, brought February 7th 1861, by John Barnet, Daniel Barnet, and Samuel Barnet, against Jeremiah Deturk, the former to recover a tract of land in Maiden Creek township, Berks county, containing twenty acres and ninety-three perches, and the latter for a tract of land in the same township, containing thirty-six acres and thirty-four perches.

<p>What Interest will disqualify Witness.— Waiver of Notice of Protest, effect of.</p> <p>1. Unless a witness has a direct, certain, and immediate interest in the result of a suit, he is competent. A mere possibility of being sued by the plaintiff in respect to the cause of action for which he sues, will not disqualify.</p> <p>2. Hence, one of a firm to whom a note payable at a banking-house had been endorsed for collection, is a competent witness to prove demand of payment at the maturity of the note, though demand and protest was not regularly made by a notary until the next day.</p> <p>3. Where the endorser, on the day the note came due, endorsed thereon a written waiver of “notice of protest for non-payment in this case,” and on the same day demand was made at the banking-house, where answer was made that the drawees had no funds there, he cannot complain in a suit against him by endorsees, that no sufficient demand had been made: and it was not error in the court to instruct the jury that under the facts of the case there was a substantial demand made, and that the plaintiffs were entitled to recover.</p>

<p>When Decree of Court below will not be reversed.— Construction of Will. —Legacy to one by “Name” given to another “ by Description.”</p> <p>A testator by will gave a bequest “ to Lavinia the daughter of my brother John,” deceased; John left no daughter of that name, and the legacy was claimed in right of a daughter of testator’s cousin, who bore the proper name: the auditor and the court below however decreed the legacy to Cassandra Emig, John’s daughter, on evidence that the testator mentioned her married name in connection with the legacy at the time of making the will; and that both claimants were god-daughters of testator, a class to whom he had expressed his intention of giving a legacy. Held, that in such an equal balance of circumstances the presumption was that the decree of the court below, carried out the intention of the testator, aud that where nothing appeared on the record to displace that presumption, the decree would be permitted to stand.</p>

This was an action of replevin, brought March 12th 1861, by Reuben S. Brawn against Peter W. Keller, for a bay mare and carriage of the value of §175. The mare and' carriage in controversy were taken in execution as the property of William L. Hawkins, at the suit of' Harvey, Best & Co., and sold by the sheriff to Keller, the defendant.

<p>Relationship, effect of on implied Assumpsit. — Presumption of Promise to pay for personal Services, what will rebut.</p> <p>1. Where services are rendered by one to another, the law presumes a promise on the part of him who receives them to pay what they are reasonably worth : but this implication is rebutted by any proof that shows an intention to give and receive without compensation.</p> <p>2. Relationship either by consanguinity or affinity is a fact which tends to rebut the presumption which the law raises that a promise to pay is intended where personal services are rendered; but alone, it does not overcome that presumption except in the case of parent and child: in all other cases there must be evidence beyond the relationship that the creation of no debt was intended.</p> <p>3. Whether the presumption is overcome by such evidence, is a question of fact to be submitted to the jury.</p> <p>4. A father-in-law who had been boarding with his tenant and paying therefor, became dissatisfied and went to live with his son-in-law, saying he would board nowhere else, and that he had enough to pay for his boarding. After his death, in an action by the son-in-law against his administrator to recover for board, attendance, &c., the court instructed the jury that the plaintiff could not recover without clear and satisfactory proof of an express contract between the plaintiff and the defendant intestate, and directed a verdict for the defendant. Held, that such instruction and direction was error.</p>

This was an action of debt upon an award of arbitrators, brought October 31st 1857, by Peter Etnier against John Shope, in which there was a verdict and judgment in favour of the defendant. All the material facts of the case will be found in the opinion of the court.

On the 22d of July 1861, John Ealy and Solomon Ealy, partners doing business as John & Solomon Ealy, sued out a summons in debt for settlement against James Borland.

This was a scire facias to revive a judgment which had been entered against William Anderson in his lifetime, in favour of Daniel Washabaugh. The scire facias was against Lemuel Anderson and Lewis Anderson, administrators, &c., of deceased, with notice to his widow and heirs. The material facts of the case were these :— On the 2d of October 1792, a warrant issued to Mary Foster for about 50 acres of land, in Bedford county.

This was an action of assumpsit, brought August 20th 1860, by Simon Cameron, George Smulter, James Young, G. Dawson Coleman, Levi Kline, George Gleim, and Augustus Boyd, doing business as the Lebanon Deposit Bank, against William Eckert.

Error, to the Common Pleas of Juniata county. This was a scire facias sur mortgage by Solomon Stahlman, for the use of W. J. Kirk, against Samuel Cross and William Cross, with notice to Alexander Eaton, terre-tenant. The material facts of the case were as follows,: — Oh the 30th of March 1839, Samuel and William Cross executed a mortgage to Solomon Stahlman, to secure the payment of $2000, in five annua-l instalments, commencing on the 1st of April 1840.

This was an amicable action between O. Potter and the Farmers’ High School of Pennsylvania, in which there was a ease stated for the opinion of the court.

This was an action of debt, brought August 5th 1861, by-Thomas Foster and Catherine Foster, doing business as Thomas Foster & Co., against Jacob Hoffman. The plaintiff filed a statement on a promissory note drawn by defendant, at' Reading, February 2d 1861, to the order of John Maginnis, for $252.80, payable sixty days after date, and endorsed in blank by Maginnis, and with it filed a copy of the note and endorsement with the usual affidavit.

<p>Mode of Procedure when the Statute under which it commenced has been modified by subsequent Legislation.— Uwchlan Road Gase, 6 Gasey 156, affirmed.</p> <p>1. Where a proceeding founded upon one Act of Assembly is commenced, and while pending, another act is passed taking away the jurisdiction, the proceeding falls : but where the remedy only is changed, it continues under the forms directed by the new act, where it applies • or else under the old law.</p> <p>2. Where viewers had been appointed in 1859 under the General Road Law, and after confirmation nisi, an Act of Assembly, 2d April 1800, was passed changing the road laws of Dauphin county: Held, that it would not prevent the subsequent order of confirmation of the road from being made under the old law.</p> <p>3. Where six viewers had been appointed for a view under the old law, and after the passage of the Act of April 2d 1800, but three were appointed for the review, as directed by the act, such appointment was held proper, for the old law had been so far changed by the repealing act: but as the proceeding for damages was unchanged, it .must go on under the old law, except as to the number of viewers.</p>

<p>Certiorari to the Quarter Sessions of York county.</p> <p>In November 1859, the court appointed six men to view and lay out a road in Spring Garden township, from a public road to the line of the borough of York, who, on the 6th day of January 1860, reported in favour of the road. The same day, the court confirmed their report nisi, and fixed the width at thirty feet. Exceptions were filed to this report on the 19th day of April 1860, and on the 25th day of April 1860, a petition de bene esse for a review was filed, on which the court, on the 29th- day of August 1860, appointed three men, under a recent road law applicable to York county, to review the road, haying, on the 27th day of the same month, dismissed the exceptions and confirmed the first report.</p> <p>Under the second order, on the 6th day of November 1860, a report was made adversely.to the road, which was confirmed on the 12th day of January 1861. On the 9th day of January 1861, a petition for a re-review was filed, and the court, on the same day, appointed three re-reviewers, who, on the 23d day of April 1861, reported favourably to the road, which report, on the same day, was confirmed nisi, the court fixing the width at twenty-six feet. Exceptions were filed to this last report on the 24th day of August 1861, which the court dismissed, except as to the damages of one of th¿ landowners along the route, to assess which they appointed reviewers.</p> <p>On the 20th day of December 1861, a special application was made for the appointment. of other viewers, which the court denied on the ground that they could not, on such application, do more than appoint viewers of the damages. The denial of this application, the dismissal of the exceptions to the last report, and the partial confirmation of the report filed April 28d 1861, were assigned for error here.</p>

<p>Deed and, Defeasance, when equivalent to a Mortgage.— Widow’s Dower barred by Sale under Judgment against Husband, holding Land only as Mortgagor. — Dower recoverable out of what remains after Payment of Debts of deceased Husband.</p> <p>1. A widow is entitled to dower only in what remains of her husband’s estate after payment of debts, whether of record or not.</p> <p>2. R., by deed absolute on its face, conveyed in 1840 land to M., who on the same day executed a defeasance, which was not recorded, reciting the indebtedness of the grantor to the grantee, and stipulating that the land should bo disposed of as he, the grantor, should direct, and that if he should repay the indebtedness before the land should be sold, then the land was to be reconveyed to him or sold as he should direct, the intention of the conveyance being to secure the payment to M. of the said debt: M. afterwards, November 8th 1853, conveyed the land to the poor directors: November 30th 1852, judgment was obtained against R., which, after his death in 1856, was in 1859 revived against the administratrix, who was his widow, and upon this judgment the land was levied on and sold for much less than the judgment by the sheriff to the directors,‘against whom the widow brought an action of dower. Held, that as the deed with the defeasance was in effect a mortgage, the husband was a mortgagor only, having an interest in the land bound by the lien of the judgment entered before the sale in 1853 : and therefore the sheritf’s sale of the land on that judgment passed to the purchasers the entire interest of the mortgagor, and barred the dower of the widow.</p>

<p>Lien of Debts of Decedent. — Limitation of, not affected by Payments made by Administrator. — Sale by order of Orphans’ Court not complete until Confirmation.</p> <p>1. The limitation of the lien of the debts of a decedent is complete five years after his death, unless an action has been commenced or a copy of the demand be filed in the specified cases: the statutory period begins to run from the time of death, and not from the grant of letters of administration.</p> <p>2. Though the administrator advance his own funds in payment of debts due by the decedent within five years from his death, it will not prolong beyond that time the existence of the lien. It only entitles him in equity to a cession of the rights of the creditors paid.</p> <p>3. An administrator on settlement of his account was the creditor of the estate for a considerable sum, made up of debts paid, judgments obtained against him as administrator, and his services and expenses incident to settlement of the estate: after five years from the death of the intestate, an order to sell the real estate was granted to pay the debt due the administrator. Held, that only those sums credited to the administrator in his account on which judgment had been obtained within five years from the granting of the order of sale, together with the services and expenses incident to the settlement, were liens on the real estate, but that as those claims wore valid liens, the Orphans’ Court had jurisdiction to make the order.</p> <p>4. Orphans’ Court sales depend upon the approval and confirmation of the court for their validity. AVhether a purchaser thereat, is not liable for any loss, such as the destruction of buildings by fire, that may occur between the time of the sale and its confirmation by the court, guara.</p>

<p>Error to tho Common Pleas of Adams county.</p> <p>This was an action of ejectment, brought by Henry Meyers against Johnston Hill and Elizabeth his wife, Harriet Witherow, Joseph Witherow, John S. Witherow, Washington Witherow, and Sarah Witherow, for the undivided moiety of a tract of land in Cumberland township, Adams county, containing one hundred and fifty acres, more or less, with a grist-mill, saw-mill, and other improvements.</p> <p>The defendants were the heirs and legal representatives of David Witherow, deceased. The plaintiff was the sheriff’s vendee of the interest of Samuel Witherow, who was a brother of David, and held the property with him as tenant in common, and who, it was alleged, had purchased the interest of David prior to the entry of the judgment.</p> <p>On the trial of the case there were several bills of exception to the admission and rejection of testimony, sealed by the parties, and the charge of the court below also was excepted to by plaintiff and defendants.</p> <p>All the material facts of the case, and the points made by the courtsel, will be found in the opinion of this court.</p>

<p>Error to the Common Pleas of Lebanon county.</p> <p>Two suits were brought in the Common Pleas, March 16th 1860, by Benjamin Blewett, the one an action on the case, the other an action of trespass vi et armis against Robert W. Coleman and Artemus Wilhelm, for interrupting the plaintiff in his mining operations at the Cornwall Mines in Lebanon county, in each of which, under the ruling of the court bolow, there was a verdict and judgment in favour of the plaintiff.</p> <p>This case has been so often before this court (see 7 Harris 100, 11 Id. 393, and 4 Wright 45), and the facts are so fully recapitulated in the following opinion, that it is thought unnecessary to re-state them here.</p>

<p>Error to the Common Pleas of Franklin county.</p> <p>This was an action of ejectment brought by Sarah Angle, James Ross, Rebecca Wilson and John Wilson her husband, Sarah E. Myers and William L. Myers her husband, Mary A. Craig and William Craig her husband, and Richard Cunningham, against Emanuel Brosius, for a tract of land situate in Montgomery township, containing twenty-three acres more or less, in which the following case was stated for the opinion of the court below:—</p> <p>The partios, by their counsel, agree upon the following facts, in the nature of a special verdict, upon which they pray the court to enter judgment. If in the opinion of the court the plaintiffs are entitled to recover, then judgment to be entered for plaintiffs for the land in dispute, otherwise judgment to be entered for the defendant with costs.'</p> <p>1. It is admitted that the plaintiffs are the heirs at law of Samuel O. Ross, deceased.</p> <p>2. It is also admitted ’that Rebecca McForren made her last will and testament 11th November 1840, which, after her death, was duly admitted to probate before the register of the county of Franklin, 9th August 1841. In said will the said testatrix {inter alia) devised as follows, viz.: “Item fifth. I bequeath the last fifth to Samuel C. Ross, my nephew, -and son of my sister Rachael Ross, deceased, the money to be invested in land, he the said Samuel C. having a life estate in the same, and at his death to his legal issue or heirs.” This paper is made part of the case. Of the said will the said testatrix appointed Jacob Negley and William Duffield executors, who assumed the duties of the trust.</p> <p>3. It is admitted that the said executors, in pursuance of the directions of the said will, invested the said fifth in real estate, and made purchase of the land in controversy on the 13th February 1844, from G. W. Akers and wife, who made the deed to William Duffield, one of said executors in trust under the provisions of said last will. This deed has been mislaid.</p> <p>4. It is admitted that Samuel C. Ross went into possession of this property either before the date of the deed, or on the day of its date, with his son John J. Ross; and that the said Samuel C. Ross conveyed and assigned his interest in the land on the 14th of February 1844 to W. H. Wolff, in trust for creditors.</p> <p>5. On the 8th June 1844, Wolff, the assignee, conveyed by deed the title vested in him in trust for creditors to William Duffield and Jacob Negley.</p> <p>6. On the 6th of May 1848, Jacob Negley conveyed the undivided half derived through Wolff to John J. Ross, the son and only child of said Samuel C. Ross.</p> <p>7. The said William Duffield having died, his administrator applied to the Orphans’ Court of Franklin county for an order of sale of said undivided half of the land, derived through Wolff, for the payment of debts. The court decreed the sale, and it is admitted that the proceedings were regular, and the administrator sold and conveyed the title to the undivided half to John J. Ross on the 22d of December 1848.</p> <p>8. It is also admitted that E. Brosius obtained a judgment in the Common Pleas of said county against John J. Ross, upon which judgment process was issued, this land levied on, condemned, and sold as the estate of John J. Ross to E. Brosius; that the proceedings were all in due form; that a deed was duly executed 12th January, and acknowledged 19th January 1855, and delivered' by the sheriff to the purchaser for the land in dispute.</p> <p>9. It is also admitted that Samuel C. Ross, and his son John J. Ross, on the 25th March 1855, joined in a deed of conveyance of all their title to said land, in fee simple to defendant E. Brosius.</p> <p>10. That S. C. Ross was a widower at the date of the death of the testatrix and never married thereafter; and it is further admitted that John J. Ross was his only child, and that he was never married; that he died in the year 1855, in the month of September, aged about thirty-four years; that the father survived the son until July 1860, when he also died.</p> <p>The deeds referred to were made part of the case.</p> <p>April the 19th 1862, the court entered judgment for the defendant, with costs of suit.</p> <p>The case was thereupon removed into this cour]; by the plaintiff, where the following errors were assigned:—</p> <p>1. The court below erred in entering judgment upon the case stated for the defendant.</p> <p>2. The court below should have entered judgment for the plaintiffs in the case stated.</p>

<p>Error to the Common Pleas of Centre county.</p> <p>This was an action of assumpsit, brought in the court below to August Term 1858, by Samuel Stevenson, Smith Bowen, and Alfred Nesmith, doing business as Stevenson, Bowen & Nesmith, against Jacob Hoy.</p> <p>The material facts of the case were these : — John B. Hughes, a merchant of Jacksonville, Centre county, applied to the plaintiffs, merchants of the city of Philadelphia, to purchase a bill of goods. The goods were not purchased at that time, but after his return home he wrote to them, offering Jacob Hoy as surety or guarantor for the payment of the goods, and enclosed the following written guaranty, purporting to be signed by Jacob Hoy:-</p> <p>“ Messrs. Stevenson, Bowen k Nesmith.</p> <p>“ Gentlemen, — Should J. B. Hughes purchase a bill of goods from you on six months’ time, and should fail to pay at the time, I will stand good for the same.</p> <p>Bespectfully yours,</p> <p>“Jacob Hoy.”</p> <p>Upon inquiry by their agent, then in this county, they were satisfied with the name of Hoy as surety, and shipped the goods to Hughes in pursuance of an order forwarded in a letter of the 16th June 1857, which accompanied the guaranty purporting to be signed by Hoy, the defendant. The plaintiffs then forwarded to their agent, G. W. McWilliams, an account of the goods shipped to Hughes. This was received by Mr. McWilliams, then at Rock Springs, in Centre county. On the 29th June 1857, Mr. McWilliams mailed to Jacob Ploy the bill of goods received by him from the plaintiffs, with a letter informing Mr. Hoy that the bill or invoice enclosed was of goods sold to J. R. Hughes in consideration of Mr. Hoy’s written guaranty to Stevenson, Bowen & Nesmith to pay the amount in six months, should Mr. Hughes fail to do so. The purchase by Mr. Hughes amounted to $745.35. This letter it was proved and admitted was received by Mr. Hoy.</p> <p>When John R. Hughes became insolvent, he left Centre county in March 1858, and died in Missouri in August 1858. The letter sent by Mr. McWilliams to Jacob Hoy, the 29th June 1855, enclosing invoice of purchase by Plughes, and informing Hoy that the goods were sold in consideration of his written guaranty, was not .answered by Hoy. Thus matters remained until the purchase-money of the goods became due. Suit was then brought against Plughes and judgment obtained. This suit was then brought against Jacob Hoy to recover the amount of the goods purchased by Plughes, under the circumstances above stated.</p> <p>The name of Jacob Hoy was not in his handwriting, and there was some evidence on the trial that it was written by Hughes, but in a feigned and unusual hand. Nor was there any authority shown from Hoy to Hughes, or to any other person, to sign the name of Hoy to the guaranty; but the plaintiffs insisted that by his silence after he had notice that they held his written guaranty, he induced them to rely on their security as valid and genuine, until Plughes had became insolvent, and their claim which they could otherwise have secured was lost, and that he became thereby responsible to them for the amount.</p> <p>On the trial the plaintiffs, after some other evidence, offered the guaranty upon which the suit was founded, purporting to have been signed by Jacob Hoy, being the same enclosed to plaintiffs by J. R. Hughes in the letter of 16th June 1857, together with the order for the goods, accompanied by proof that the guaranty is in the handwriting of John R. Hughes and to be followed by evidence that at or about the time of the guaranty John R. Hughes was acting as the agent of Jacob Ploy, and as such writing letters in his name, collecting money and giving receipts for the same in his name, endorsing bank checks in his name, upon which endorsements the checks were paid, and have not since been questioned. Also by proof that on the 10th day of December 1857, the plaintiffs again addressed a letter to Jacob Hoy, Jacksonville, Centre county, Pennsylvania, in which they informed him that Mr. Hughes had not paid the bill of $745.35, which he promised to pay if Hughes did not; that they had drawn upon him for the amount of bill payable 25th of the same month, and that they would expect him to pay if Mr. Hughes did not give him the money to pay the draft, and that they had sent the draft to Humes, McAllister, Hale & Co., Bankers, Bellefonte, where he would please take the money and pay the draft, with exchange on Philadelphia; that no reply was received in answer to said letter; [that John R. Hughes continued to reside at Hoy’s Mills, Centre county, within one half mile of Jacksonville, in which Walker post office is situated, until the month of March 1858, and until after the bill and guaranty were placed in the hands of an attorney for collection, and until after Jacob Hoy had been informed by the attorney of that fact, when Hughes left the county for parts unknown, leaving no estate out of which the claim or any portion thereof could be collected;] that Hoy received the letter in evidence dated 29th June 1857, mailed at Rock Springs, and the bill enclosed, and showed them to Richard C. Hughes, by whom the contents of the same were fully explained to him, and that shortly after J. R. Hughes left the county he positively denied ever having received any such letter or bill.</p> <p>That portion of the offer enclosed in brackets was objected to by the defendant and rejected by the court, and the.residue admitted in evidence under exception by both parties.</p> <p>The plaintiffs then offered to prove the contents of a letter written by them to defendant on the 10th day of December 1857, which they had shown was mailed at Philadelphia on the same day, addressed to Jacob Hoy, Jacksonville, Centre county, Pennsylvania (notice to produce which on the trial had been duly given by the plaintiffs to the defendant), having also proved by William Allison, postmaster, at Jacksonville, that a letter mailed at Philadelphia on the 10th, arrived at Jacksonville on the 12th December 1857. They had previously offered a copy of this letter, taken from a fao simile impression made upon a copying press, and had proved by Thomas R. Searle that he was in the employ of the plaintiffs as book-keeper in 1857; that he saw and read the original letter before it was sent; that a fac simile impression was taken by a boy in a letter-book from which the copy offered was taken; that he had compared the copy offered with the copy in the' book. The defendant’s counsel objected to the admission of the paper offered, because — 1. It was not a correct copy. 2. It was a copy of a copy; and because 3. The fae simile in plaintiffs’ letter-book, from which it purports to be copied, is the best evidence and ought to be produced; and the court rejected the offer. An offer to prove the contents of the letter was there made; but it was objected to, and rejected by the court.</p> <p>After the plaintiffs had proved the insolvency of Hughes, his removal from Centre county in 1858, and that Hoy was informed by mail that he had given his guaranty as above stated, and that the letter which contained this information had been received, the defendant proposed to ask the witness then on the stand, what Mr. Hoy had said when he read the letter to him, which was objected to by the plaintiffs on the ground that they had not given any of his declarations in evidence, and that his declarations to a third party with whom the plaintiffs had no connection, were not evidence. The court overruled the objection and admitted the evidence.</p> <p>The court below (Graham, P. J.), after stating the material facts of the case, and the grounds on which the plaintiffs and defendant rested their case, charged as follows:—</p> <p>“ [The letter of plaintiffs to Hoy is as follows: — ■</p> <p>“Rock Springs, June 29th 1857.</p> <p>“Mr. Jacob Hoy, Centre county.</p> <p>“ Sir: Enclosed you will find duplicate invoice of goods sold Mr. J. R. Hughes, in consideration of your written guaranty to us to pay the amount in six months, should Mr. Hughes fail to do so. The object in writing you is to notify you of the purchase of the goods by Mr. Hughes, and the amount, viz., $745.35. Yours, respectfully,</p> <p>“ Stevenson, Bowen & Nesmith,</p> <p>“Per G. W.>McWilliams.”</p> <p>“You will have this letter out with you, and from it and all the evidence in the case, you will determine whether Mr. Hoy knew and understood that the plaintiffs held his written guaranty for the goods purchased by Hughes. If he so understood the letter and remained silent and did not reply, but suffered plaintiffs to rest upon their supposed guaranty, although a forgery, until Hughes became insolvent and the debt was lost, then the defendant would be liable, and we cannot instruct you as requested by defendant’s counsel, that if the guaranty was a forgery the defendant might disregard the notice received from plaintiffs, and incur no liability.</p> <p>“ On the contrary, if you are not satisfied from the evidence that defendant fully understood plaintiffs’ letter, as a notice that they held his written guaranty for the goods purchased, if from the evidence of his being illiterate and not able to read writing easily or understandingly, and further that he had really signed no such guaranty, you believe that he honestly understood plaintiffs’ letter as a request to guarantee a purchase that had been made previous to that time by Hughes, and not as a notice that they then held a written guaranty signed by him, then the defendant would not be liable.</p> <p>“ This is an action to charge one man with the debt of another, and in such cases the evidence on the part of the plaintiffs ought to be very explicit. The plaintiffs are required to make out the case to your satisfaction. The evidence must preponderate in their favour; if it is equally balanced the plaintiffs ought not to recover.]</p> <p>“ If from the whole evidence applied to the point in this case on which we have said the rights of the respective.parties depend, you are reasonably well satisfied that the plaintiffs ought to recover, find in their favour.</p> <p>‘‘ [On the contrary, if the evidence has failed to satisfy you that the letter of plaintiffs was understood by defendant as a notice that they then held his written guaranty, but on account of his being illiterate, or unable properly to read writing, he understood it only as a request to guarantee the purchase made by Hughes, then the plaintiffs ought not to recover.</p> <p>“ We cannot instruct you, as requested by counsel, that Hoy is to be considered by you as a man of ordinary intelligence. Tou will judge of his intelligence from the evidence on that subject. Nor can we instruct you, as requested by defendant’s counsel, that the Act of 26th April 1855 will prevent plaintiffs from recovering in this case.”]</p> <p>Under these instructions there was a verdict and judgment for defendant; whereupon the plaintiffs sued out this writ, and assigned for error here the rejection and admission of the testimony above mentioned, and so much of the charge of the court as is included above in brackets.</p>

<p>Error to the Common Pleas of Franklin county.</p> <p>This was an action of ejectment by J. Holker Hughes against Thaddeus Stevens, in which the following case was stated for the opinion of the court in the nature of a special verdict: — ■</p> <p>John Holker procured from the Land Office of Pennsylvania twenty-seven warrants, commencing with Robert Smith and ending with Alexander S. Dallas, each for four hundred acres of .land, bearing date the 6th day of September, A. D. 1792. ■ The warrants that cover the land in dispute were issued in the names of Pascal Hollingsworth, Maurice Kennedy, John Duncan, Robert Henry Duncan, John Eindley, and Edmund Duncan, and are part of the twenty-seven warrants above mentioned. These Avarrants are indescriptive, and call for land in Washington toivnship, Franklin county, Pennsylvania. John Holker paid the purchase-money and surveying fees for twenty-seven warrants, and lodged them in the hands of Matthew Henderson, deputy .surveyor of Franklin county, for location and survey, as per his return hereinafter recited. Samuel Nicholson, for himself and General William Duncan (who paid the purchase-money), took out six warrants, dated the 3d day of January, A. D. 1793, in the names of Matthew Duncan, Eliza Duncan, Sarah Nicholson, John Cooper, William Duncan, and William Moulder. These six Avarrants Avore also indescriptive, and were lodged in the hands of Matthew Henderson, deputy surveyor, as above stated, for Franklin county, to be located and surveyed by him, as per his return hereinafter recited. On the 15th day of January, A. d. 1795, Matthew Henderson forwarded to the land office, at Harrisburg, a draft of the surveys made by him, on the warrants of John Holker, and on the Avarrants of Samuel Nicholson and William Duncan, accompanied by the folloAA’ing return: “ This draft describes a parcel of land situate in Guilford and Green townships, in the county of Franklin. The black lines represent a survey begun and carried on the 20th of June, A. d. 1793, for Samuel Nicholson, in execution of his Avarrants in the names of MatthoAV Duncan, Eliza Duncan, Sarah Nicholson, John Cooper, William Duncan, and William Moulder, dated tire 3d day of January, A. D. 1793. The circumstances intervening which prevented the completion of the surveys at the time were, that Henry Kaddle had an improvement and warrant adjoining the land intended to bo taken in; it Avas thought proper that Kaddle’s survey should first be made; and, bad weather coming on at the same time, the business Avas postponed until the 3d day of April, A. D. 1794, Avhen a survey Avas made for Henry Kaddle, and on the 7th day of the sanie month, at the instance of John Holker, who also claimed the greater part of the same lands, under part of twenty-seven warrrants, dated the 6th day of September, A. D. 1792, beginning with Robert Smith and ending with Alexander J. Dallas; the lines formerly run were revised and new ones run, represented above with red ink. The surveys previously made for Mr. Holker, and the intermediate vacancies and matters relative thereto, are all represented in a general draft, accompanying this for the inspection of the board of property, and humbly submitted by</p> <p>“ Matthew Henderson, D. S.</p> <p>“ To Daniel Brodhead, Surveyor-General of Pennsylvania.</p> <p>“N. B. — Mr. Nicholson claims the whole of the land included within the black lines on his first four warrants above mentioned, and also that space between the same and Rocky Ridge in part of his other two warrants. M. H.”</p> <p>This draft and survey of Matthew Henderson was returned into the land office, marked “in dispute,” and remained on the disputed files of the land department until 1843. The Pascal Hollingsworth, Maurice Kennedy, John Duncan, John Findley, and Edmund Duncan warrants, owned by John Holker, were located by Matthew Henderson for Mr. Holker, on the land embraced within the red lines of'his draft. The Matthew Duncan, Eliza Duncan, Sarah Nicholson, John Cooper, William Duncan, and William Moulder warrants, owned by Samuel Nicholson and General William Duncan, were located by Matthew Henderson for them, on the land embraced within the black lines of his draft. Matthew Henderson, in locating the Holker warrants, and also the warrants of Samuel Nicholson and General William Duncan, only run the exterior lines, and did not locate each warrant separately, on a distinct and separate parcel of ground. On the 21st day of November, A. D. 1808, John Holker procured Thomas Poe, deputy surveyor of Franklin county, to go upon the land now in dispute, and to locate and survey each of his warrants, contained in the Matthew Henderson survey, separately, as per his return. These warrants thus located by Thomas Poe (and being a part of the Holker warrants, referred to by Matthew Henderson in his return), covered all the land embraced within the red lines of the Matthew Henderson draft, including almost all the land within the black lines of the same draft, and by which Samuel Nicholson and General William Duncan claimed. On the 8th day of January, A. D. 1811, Thomas Poe returned these surveys into the land office for John Holker, and they were on that day accepted. The title to the Holker warrants and surveys, by sundry good and sufficient deeds and conveyances, became regularly vested in J. Holker Hughes, the plaintiff. The taxes on the land now in dispute were regularly assessed with Hughes’s other lands from year to year, and paid by J. ITolker Hughes and those under whom he claims, from the year 1808 until the present time. On the 16th day of April, A. D. 1796, Samuel Nicholson sold his interest in the land to General William Duncan. On the 8th of January 1828, General William Duncan, by his attorney in fact, Matthew Duncan, sold the land in question to Thaddeus Stevens, the defendant in this suit, who paid most of the purchase-money to said attorney in fact, Matthew Duncan. Samuel Hughes (the father of the present plaintiff) having become the owner of the Holker warrants and surveys in the year 1837, brought an action of trespass, quare clausum, fregit, against Thaddeus Stevens to No. 1 of January Term, A. ». 1838, of the Court of Common Pleas of Franklin county, Pennsylvania, for alleged trespasses committed by said Stevens, in cutting and coaling the timber growing on the land now in dispute. The parties made a case stated in the nature of a special verdict, in which they agreed to submit the title to the land to the judgment of the court, and if judgment on the title were given for the plaintiff, the damages should afterwards be assessed by arbitrators, writ of inquiry, or otherwise. The Court of Common Pleas adjudged the title to be in Hughes (the plaintiff), and damages were assessed at $495, and judgment entered therefor on the 20th day of November, A. D. 1840. A writ of error was sued out, and on the 20th of June, A. D. 1842, the Supreme Court reversed the judgment of the Court of Common Pleas, and judgment was entered for the plaintiff in error (Stevens) on the case stated. (See report of the case, 3 W. & S. 465.) The land in dispute in that suit is the same land for the recovery of which this ejectment has been brought. In pursuance of the decision and judgment of the Supreme Court, Thaddeus Stevens obtained patents from the Commonwealth dated the 7th day of July, A. D. 1843. And the surveyor-general in his office divided the original survey of Matthew Henderson, and appropriated the land embraced in said survey to the several warrants then held by Thaddeus Stevens, so as to issue patents for the same. Thaddeus Stevens-paid the office fees and received the patents. At this time the Matthew Henderson survey of the 15th of January, A. D. 1795, was marked accepted. After the aforesaid judgment, and the issuing of the patents, Thaddeus Stevens paid to General William Duncan the balance of the purchase-money, to wit, $500, and received from him a deed dated the 2d day of August, a. d. 1855. Thaddeus Stevens brought an action, of ejectment for the land in dispute in this suit against Samuel Hughes and J. Holker Hughes, to No. 151 of August Term 1843, of the Court of Common Pleas of Franklin county. On the 1st day of April, A. D. 1846, the defendants in that action filed the following disclaimer of title, to wit: “ The defendants in the above action disclaim title to one hundred and eighty-two acres or thereabouts (supposed to be included in the plaintiff’s claim), adjoining lands of James Beard, John Vance, and land surveyed on a warrant to Pascal Hollingsworth, defendants not being'in possession of the same after the issuing of the writ.</p> <p>“ John F. Denny,</p> <p>“ April 1st 1846.</p> <p>“ Attorney for defendants.</p> <p>“ To Thos. Bard, Prothonotary.”</p> <p>On the same Thaddeus Stevens discontinued his ejectment. J. Holker Hughes afterwards cut timber on the land and coaléd. it for the use of his furnace. Thaddeus Stevens brought an action of trespass quare clausum fregit against said Hughes, to No. 2 of August Term, A. D. 1864, of the Court of Common Pleas of Franklin county. The defendant (Hughes) pleaded liberum tenementum. The plaintiff (Stevens) replied the judgment of the Supreme Court as an estoppel, and as conclusive of the title. Issue was joined and judgment was given by the Court of Common Pleas for the defendant (Hughes). The plaintiff (Stevens) sued out a writ of error, and the Supreme Court, on the 15th day of July, A. D. 1858, reversed' the judgment of the court below, and awrarded a venire facias de novo. The case was again tried in the Common Pleas, a verdict given in favour of the plaintiff (Stevens) for $500 and costs, and judgment subsequently entered on the verdict. (See report of the case in 7 Casey 381.) The land in dispute is woodland, and is now all situate in Guilford township, Franklin county, Pennsylvania. For the particular questions raised and decided upon the trial of the action of trespass quare clausum fregit, entered to No. 1 of January Term, A. D. 1838, by the Court of Common Pleas of Franklin county, between Samuel Hughes, plaintiff, and Thaddeus Stevens, defendant, and also in the case of Thaddeus Stevens against J. Holker Hughes, entered to No. 202 of August Term, A. d. 1854, the Court is referred to the records in said cases, and the reports thereof respectively, in 3 W. & S. 456 and 7 Casey 381. All the papers and documents in any way referred to are made part of this case stated.</p> <p>If the court be of the opinion, upon the foregoing statement of facts, that the title to the land in dispute is in the plaintiff, then judgment to be entered for the plaintiff for said land; but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein, without affidavit or recognisance.</p> <p>There are several “returns,” “records,” and “drafts” referred to in the case stated, but as they were not to be found in the paper-books, it was not possible to include them in this report.</p> <p>April 19th 1862, the court entered judgment for the defendant. This writ was then sued out by plaintiff, for whom the following errors were assigned:—</p> <p>1. The court erred in entering judgment for the defendant in the case stated.</p> <p>2. The court should have entered judgment for the plaintiff in the case stated.</p>

<p>Error to the Common Pleas of Centre county.</p> <p>This was an action of assumpsit, brought to August Term 1857, by Samuel Shultz against J. F. Mathias and James B. Murray, executors, &c., of Anthony Shorb.</p> <p>The plaintiff declared in special assumpsit, setting out the instrument on which his cause of action was founded (a copy of which will he found in the opinion of this court); to which the defendants pleaded non assumpsit and payment with leave, &c.</p> <p>There urns no consideration expressed in the instrument on which suit was brought, but evidence was offered and received under exception, from which it was believed an adequate consideration was inferrable.</p> <p>Under the ruling of the court below, there was a verdict and judgment for plaintiff; whereupon this writ was sued out by defendants.</p> <p>All the material facts of the case, the exceptions taken to the admission of evidence in the court below, and the errors assigned here, are fully stated in the opinion of this court.</p>

<p>Lien of Mortgage, how affected by Entry of “ settled by the Parties” on scire facias sued out thereon.</p> <p>The owner of real estate having given mortgages thereon in 1852, writs of scire facias were issued in 1853, and alias writs in 1854, when an arrangement was made, and an entry made on the docket in each of the cases “settled by parties,” and the costs were paid: subsequently by various conveyances, each expressly stipulating that the purchaser took subject to the mortgages, the property became vested in L., who in 1857 on obtaining an extension of time for payment, executed to the assignees of the mortgages a declaration of no set-off and fixing the balance due: afterwards on judgment and execution against him, one tract was sold and bought in by the plaintiff as trustee for the estate of her husband, a judgment-creditor who, in the other writs of scire facias issued on the mortgage binding the tract purchased, set up the defence that the entry of “ settled” on the record of the former writs, was a payment and satisfaction of the mortgages. Belch that as the trustee had notice in the line of the title of the non-payment of the mortgages before her purchase, and after the making of the entry claimed to bo an estoppel, she could not sustain the defence, but that the plaintiffs, assignees of the mortgages, were entitled to recover thereon.</p>

<p> Personal Liability of Public Officers. </p> <p>1. Township officers are not personally liable for acts done honestly in the exercise of the discretion given them by law, though it be exercised so mistakenly as to work an injury to private property or private individuals: but they are liable, if they act maliciously or wantonly and if the work performed by them be done rather to injure an individual th'an to discharge a public duty.</p> <p>2. The supervisors of adjoining townships, in laying out a road over a small stream, the boundary line between tho townships, filled up the bod of the stream with stone, and made a causeway instead of a bridge : tho owner of a waterpower below brought an action against the supervisors for obstructing the water, on the trial of which the jury were instructed that if the defendants constructed the causeway with an intent to injure the plaintiff he might recover, and that an intent to injure him might be inferred from the acts of the defendants if the jury believed they wore such as could have been done with no other intent, or if the evidence justified them in drawing such an inference : Held, that such instruction was error, for the defendants had the right to build a causeway rather than a bridge, without incurring any liability for damages: and the plaintiff could not recover unless the defendants had acted with a malicious design to do him injury, or with such a reckless and wanton disregard of his interests as would be equivalent to malicious intent.</p> <p>3. Though parts of the causeway were built at different times, and by different defendants, yet as it was done in pursuance of a common design, tho acts of one were the acts of all: hence, it was not error to leave it to the jury to find that the injury, if any, was the joint act of tho defendants.</p> <p>4. It was compotontfor one of the defendants to show, that before the commencement of the work he had received a message from the supervisor of tho adjoining township — a co-defendant — that he would not join in building a bridge because the people of his township were opposed to it: the evidence Was admissible to show the want of any malicious intent.</p>

<p>Sheriff’s Sale of Personal Property in the mass, invalid.— What control Sheriff must have of Chattels sold by him.</p> <p>1. A sheriff sold under a fieri facias, by direction of the attorney of the plaintiffs therein, an entire stock of lumber and coal, belonging to the defendant, in the mass, to the plaintiffs whose bid was the only one made. Held, that as there were no circumstances shown to justify a departure from the rule that a sheriff must sell separately or in parcels, the sale was void in law, and passed no title to the purchasers.</p> <p>2. Thp sale was not necessarily void because a portion of the property sold was at some distance from the place of sale; although personal property must be in the power of the sheriff when he sells, and where bidders may inspect it, yet the articles need not be immediately in view when sold.</p>

This was a second trial of the preceding case under the venire de novo directed by the Supreme Court!

<p> Rule for Settlement of the Tax Account between the Delaware and Hudson Canal Company and the Commonwealth. </p> <p>1. By the Act of the 11th of April 1848, one statement only is required to be filed in the auditor-general’s office by the officers of the Delaware and Hudson Canal Company, setting forth the cost of its works within this state and the amount of its capital invested therein, which statement was intended to bo thereafter the basis of settlement of the tax account between the Commonwealth and the Company.</p> <p>2. Hence, the instruction of the court below, on case stated to ascertain the amount of taxes due the Commonwealth, that not only the sums then invested in the works of the company, but also the increased expenditure from year to year thereon, were subject to taxation, was error.</p>

This was a scire facias sur mortgage, dated 29th April 1834, upon the undivided moiety of three hundred and one acres of land, adjoining the borough of Bellefonte, given by William A. Thomas to John Harris, in trust, to secure the payment of a bond of even date, in the penalty of $6000, conditioned for the payment of $180 (being the interest of $3000 of the purchase-money) to Mrs. Elizabeth Simpson, formerly Mrs. Elizabeth Smith, widow of James Smith, the elder, deceased,…

Sitting in Equity. This was a proceeding in equity founded on a bill filed April 11th 1859 by John Winebrenner, Isaac Stees, and others, members of the church incorporated under the name and title of the “ Church of God,” at Harrisburg, adhering to the religious principles and government of “The East Pennsylvania Eldership and General Eldership of the Church of God in North America,” for themselves and others who adhere to the standards, principles, doctrines, and discipline…

<p>Error to tho Common Pleas of Clearfield county.</p> <p>This was an action of ejectment, brought in the court below, to January Term 1859, by John Dubois against Andrew Baum, A. Deitz, J. Y. Thompson, William Dixon, Iliram Fry, Alonzo Dixon, John E. Hoffman, Ethan McCullough, and John Voinchet, for five hundred and twenty acres of land in Brady township.</p> <p>Both parties claimed under Thomas L. Batdorff, in whom it was conceded the title to the land in controversy formerly vested.</p> <p>The plaintiff claimed under a purchase from Jamos T. Leonard, who, as agent for Batdorff, sold the tract to Dubois by articles of agreement under seal, bearing date the 25th June 1849.</p> <p>The defendant claimed under an agreement, dated the 7th of November 1853, by which Batdorff covenanted to convey the tract in dispute to Bassler and Boyer. In pursuance of this agreement Batdorff and wife executed a deed to Basslor for the premises, which bore date the 25th March 1854, and was entered in the office for recording of deeds in Clearfield county, on the 10th November 1858. On the 10th November 1858, Bassler, by agreement in writing, sold the tract to John Y. Thompson. This agreement was recorded on the 13th October 1859. Thompson afterwards assigned to Baum.</p> <p>The defendants alleged that they were bond fide purchasers for value, without notice of the plaintiff’s title, and that having put their title upon record, they were entitled to hold as against Dubois, who had, as they alleged, failed to give such notice as the law requires to protect him against subsequent purchasers from the same vendor.</p> <p>On the trial in the court below, the plaintiff offered to prove by James T. Leonard that he was the agent of Thomas L. Batdorff, duly constituted by writing to sell this land, and to have a general supervision of it; that he sold it to the plaintiff by articles of agreement, and notified Batdorff thereof, to be followed by the written contract of John Dubois, the plaintiff, and proof of actual possession taken and maintained thereunder.</p> <p>To this the defendant objected that the agent for the sale of real estate is not competent to prove his own authority. But the objection was overruled, and the offer admitted by the court.</p> <p>The plaintiffs then offered a letter of Thomas L. Batdorff to James T. Leonard, dated February 16th 1846, which was objected to because the contents are irrelevant to the issue. This objection was also overruled.</p> <p>The letter was as follows :—</p> <p>“ Myerstown, February 16th 1846.</p> <p>“ James T. Leonard, Esq. — Dear sir: I received your letter from the 3d of last month, and find therein that our land will be sold again for tax. I wish you would attend to it, and have it sold, and buy it in for me. Get the treasurer’s deed made to me, as wo have concluded to sell the said tract, and I think it will be the cheapest way to give a title.</p> <p>“ My brothers and sisters have nearly all died, and have heirs living, and therefore it would be very troublesome to give a title. Send me by letter what the probable cost, and then I will send you a draft for the whole amount. Should any of the above proposals not meet your approbation, I wish you would also state it to me, and the right or cheapest way or plan to get the title in me. Do not delay in sending a letter. After my sincere thanks to you for punctuality, I remain, respectfully, your friend, &c., ■ “ Thos. L. Batdorkf.”</p> <p>The plaintiff then offered article of agreement, 25th June 1849, between James T. Leonard, of Clearfield county, as agent of Thomas L. Batdorff, and John Dubois.</p> <p>Objected to, because it is a contract under seal, and the agent exceeded his authority. This objection was overruled, and the agreement, which was in these words, admitted in evidence:—</p> <p>“ Article of agreement, made and entered into this 25th day of June 1849, between James T. Leonard, of Clearfield county, and state of Pennsylvania, as agent for Thomas L. Batdorff, of the one part, and John Dubois, Jr., of Lycoming county, and state aforesaid, of the other part, as follows: The said James T. Leonard, as agent, agrees to sell and convey unto the said John Dubois, Jr., all that certain tract or parcel of land situate in Brady township, Clearfield county, and known as No. 13, containing five hundred and twenty-one acres, more or less, in the name of Christian Lower; for which the said John Dubois, Jr., agrees to pay to the said Thomas L. Batdorff the sum of $626, at any time a deed is executed for the same, the money to be paid to James T. Leonard, or deposited to his credit in the Commercial Bank in Philadelphia. As witness our hands and seals the day and year aforesaid.</p> <p>James T. Leonard, [seal.]</p> <p>As Agent for Batdorff.</p> <p>John Dubois, Jr. [seal.]”</p> <p>Plaintiff also offered to prove by W. A. Wallace, his counsel, what he, as attorney of Dubois, had communicated to Thompson concerning this land.</p> <p>To which defendants’ counsel objected that at the time the witness was acting as the attorney of Basslcr & Thompson.</p> <p>The court admitted the offer, restricting it however to what witness said, and not permitting him to state anything communicated to him by Bassler & Thompson, or any knowledge obtained from them at the time.</p> <p>After the plaintiff had closed, the defendants offered, inter alia, to prove that the land was worth from $3 to $4 per acre when Judge Leonard sold to John Dubois, and that such was the current price for land in that neighbourhood.</p> <p>The plaintiff’s counsel objected that it is not relevant to this stage of the cause, which objection was sustained.</p> <p>The plaintiff requested the court, among other things, to instruct the jury,</p> <p>3. The contract of 25th June 1849. made by James T. Leonard as the agent of Thomas L. Batdorff with John Dubois, for the sale and conveyance of tract No. 13, is a valid and binding one, and the silence of Thomas’ L. Batdorff for the period of four years after that sale with the possession delivered thereunder to the vendee, constitute John Dubois the vendee of Thomas L. Batdorff.</p> <p>4. If the jury believe that the plaintiff took the possession of the land under the contract, and has paid the taxes thereon, and has always maintained that possession until the ouster by Baum and others before the bringing of this action, then the plaintiff is entitled to have the possession without payment or tender of the purchase-money.</p> <p>7. By the terms of the contract the execution of a deed was a condition precedent to the payment of the money, and if the jury believe that Dubois, the vendee, demanded his deed, and. was always ready to pay upon its being tendered, and 'that no such tender was ever made, he is entitled as against these defendants to recover the possession of the land without payment of the purchase-money.</p> <p>The defendants also requested the court to charge—</p> <p>1. That James T. Leonard, as the agent of Thomas L. Batdorff, had no power (his authority not being under seal), to execute the agreement with John Dubois, in evidence in this case, and that said agreement is therefore void.</p> <p>The court below (Linn, P. J.) affirmed the plaintiff’s third and fourth points in terms, and affirmed the seventh, adding “if the jury relieve the plaintiff was ousted of the possession acquired under the agreement.” The instruction prayed for in defendants’ first point was refused.</p> <p>The court further instructed the jury as follows:—</p> <p>“ If you believe that, Leonard had written authority to sell, and did sell to the plaintiff on the terms set forth in the written agreement in evidence, that Batdorff was informed of the sale by Leonard, and made no objection thereto, his acquiescence up to the time of the sale to Bassler would amount to a ratification of Leonard’s act, and he cannot after so long acquiescence refuse to recognise it.</p> <p>“ If, in addition to this, you believe that Dubois took possession in pursuance of his purchase by leasing the land to a tenant, and has always been ready to comply with the terms of his agreement, he is entitled to recover the land against Batdorff and his heirs, and all claiming under him or them by subsequent purchase, except such as show that they are bond fide purchasers for value, without notice of the plaintiff’s title.”</p> <p>Under these instructions there was a verdict and judgment for plaintiff. Whereupon the defendants sued out this writ, and assigned for error the admission of James T. Leonard as a witness to prove his authority to sell real estate; the affirmative answer given to plaintiff’s third, fourth, and seventh points; the refusal of the court below to affirm the defendants’ first point; and the instruction given to the jury as above stated.</p>

These were actions on the case brought by George Lau against Samuel Mumma, for flooding the land of the plaintiff by means of a mill-dam erected on defendant’s land in 1860. The plaintiff first brought suit in 1861, after which the dam was broken. Subsequently, the dam was repaired by the defendant, and in 1860 a second suit was brought for erecting and continuing the dam.

<p>Official Default, in recording Acts of Public Officers, how remedied.— Constructive Notice of Judicial Sale of Land derived from irregular and defective Record. — Valid Judgment on seire facias founded on prior one that is void. — Judicial Proceedings not reversed collaterally. —Judgment improperly obtained, valid not as a Judgment, but as a Debt judicially established. — Devise to sell Land for Payment of Debts “ brought in due and lawful Time,” construed.</p> <p>1. Official default in recording the acts of public officers must be cured by amendment of tbe record, and in no other way where there is a tribunal in existence empowered to direct it. Where this is impossible, no equivalent therefor should he allowed to the injury of subsequent bona fide purchasers without actual or constructive notice.</p> <p>2. A record which exhibits a judgment against a defendant, a testatum fieri facias, or venditioni exponas, and return of sale of his land in regular order, is constructive notice to subsequent purchasers of a judicial sale of the land described in the writs, though the acknowledgment of the deed he entered in a docket kept for that purpose by the officer who was acting also as clerk of the Circuit Court.</p> <p>3. A judgment entered on a scire facias post annum, et diem, based upon a previous judgment that was void, or on one, of which there is no record, is not therefore void, but may be sustained as a new judgment. If the parties to it do not object, strangers cannot complain of it.</p> <p>4. The action of the Orphans’ Court in the removal -of executors and the substitution of administrators cannot be questioned collaterally.</p> <p>5. A testator having appointed his two daughters and a son executors, died in December 1794: after the death of the son, a son-in-law, in November 1801, to recover a debt due him by testator, commenced an action against the surviving executors, one of them being his wife, upon whom only process was served and who by attorney appeared (the other daughter and her husband who were also sued not appearing), and confessed judgment in December 1801, for the plaintiff: on this judgment a scire facias issued in 1803 against the same parties originally sued, reciting a judgment against both daughters, executors, to which the one not before served appeared, and final judgment was entered in 1808, upon which a testatum fieri facias issued and land of the decedent’s was sold by the sheriff and deed acknowledged, under which, in an ejectment therefor, the plaintiffs claimed. Held,'that as the original judgment in 1801 was void, the revival by scire facias must be treated as a new judgment: and though the original action was in time to save the debt from the bar of the Statute of 19th April 1794, limiting the lien of the debts of a decedent to seven years from his death, it was not properly pursued, the process as against the other daughter, executor, not commencing effectively until she appeared to the scire facias in 1803, when the lien of the debt sued for had expired: hence the judgment on the scire facias did not continue the charge of the debt against the testator’s lands, and the sale on the testatum fieri facias thereon, passed no title.</p> <p>O. The testator having directed the sale of the residue of his estate and the application of proceeds to payment of debts and legacies : also “that all just accounts and demands brought in against me or my estate, to my executors, in due and lawful time, be paid.” Held, that the will did not create a trust of the land for the payment of debts so that the Act of 1794 did not apply, but that by it, the testator dedicated his lands for the payment of debts presented within a “ lawful time,” retaining the limitation of that act: and that the debt for which the land was sold, having ceased to become a lien or charge on it, at the time of the first effective process for its recovery, the sale on the judgment recovered passed no title to the purchasers.</p>

In the Supreme Court of Pennsylvania. Sitting in Equity. This was an information filed May 17th 1862, by the Attorney-General of the Commonwealth, in pursuance of an Act of Assembly approved May 6th 1862, in these words :■ — - And now, 17th May 1862, comes William M. Meredith, Attorney-General of the Commonwealth, and gives the court here to understand and 'be informed: That the Delaware and Hudson Canal Company is a corporation established by Acts of Assembly of the state…

This was a scire facias sur mechanic’s lien entered against the Eemale Institute building connected with the University at Lewisburg, in which David Reber and John D. Musser were plaintiffs, and The Corporation of the University at Lewisburg, by the name, style, and title of “ The Trustees of the University at Lewisburg,” as owners or reputed owners, and L. B. Root & Co., as contractors, were defendants.

<p>Error to the Common Pleas of Lycoming county.</p> <p>This was an action of replevin, by Johnson, Moore, Armstrong & Fulmer against Lindsey Mehaffey, for two rolls, valued at $>247.50, which had been made by J. B. Hall, of Williamsport, for William McKinney, delivered at McKinney’s rolling-mill some time in 1854, and paid for by him.</p> <p>The rolls remained near the mill for about three years unused, and in a rough unfinished state. In 1857 McKinney failed, and the rolling-mill was sold to the plaintiffs. Subsequently these rolls were taken in execution as the personal property of McKinney, and sold by the sheriff to Mehaffey, by whom they were taken away.</p> <p>This suit was then brought as above stated, and the question in the court below and in this court was, whether these rolls, under the above facts, were real or personal property, and by which sale did the title to them pass'?</p> <p>The names of the counsel, by whom the case was argued in this court, do not appear in the paper-books furnished to the reporter.</p>

This was a scire facias sur mechanic’s lien, by Childs & Parker, filed against a shingle-mill in Cogan House township, of which John and Henry White were the owners or reputed owners, and John D. Hopper contractor. The ease was this: — Previous to the year 1859, John White and Henry White were the owners of a tract of timber land in Cogan House township, Lycoming county, upon which they had erected a steam saw-mill.

This was an action of assumpsit, brought December 8th 1860, by Benjamin D. Love and Samuel Powell, doing business as Love & Powell, against P. Gr. Fessler.

This was an action brought before a justice of the peace by “ The School District of Cascade township” against “ The School District of Lew'is-township,” to compel the latter to pay for the tuition of certain children living within the lines of Lewis township, but who were taken into the free schools of Cascade township under an arrangement which is fully stated in the opinion of this court.

This was a scire facias sur mechanic s lien by Christian Har- ' man against A. S. Cummings and wife, owners or reputed owners of a two-storied brick dwelling, forty-three feet in front by sixty-two feet in depth, in Penn township.

This was an action brought before a justice of the peace, by Charles Hottenstine, for himself and for the county of Montour, against Robert E. Auten, to recover the penalty imposed by the thirty-sixth section of the Act of June 16th 1836, for not serving the rules of reference as directed by the Compulsory Arbitration Law; and came into the Common Pleas by appeal.

This was an appeal by William L. Dewart, executor of the last will of Lewis Dewart, deceased, and trustee of Lewis Dewart, Jr., from the decree of the Common Pleas confirming the report of the auditor appointed to distribute the fund arising from the sale of the real estate of William L. Dewart. The material facts of the case were these:.

Error, to the Common Pleas of Montour county. This was an action of trespass on the ease, brought July 18th 1860, by Jacob Y. L. Dewitt against William Beddow, for contribution. On the application of the defendant, Robert Moore was made co-defendant, and required to appear and plead to the action.

<p>Appeal from the Common Pleas of Sullivan county. Sitting in Equity.</p> <p>This was a proceeding in equity on a bill filed by James Dunne and Lewis Zaner, for themselves and other citizens of Cherry township in said county, against Peter Deegan and John Groves, supervisors of said township.</p> <p>The bill set forth in substance that they are residents and owners of real and personal estate within the said township, and as such are bound by law, and do pay all taxes justly assessed and levied thereupon, and as such directly interested in eveiy question which can or may in any way whatsoever increase or augment the amount of said taxes chargeable upon their property in said township, and in the lawful and economical administration of the affairs thereof; that said defendants were according to law elected supervisors of said township, have been duly qualified, and have undertaken the discharge of the duties thereof; that defendants have taken upon themselves the authority to levy a special money tax for the purpose of paying debts against said township (in addition to the ordinary road tax allowed by law of ten mills on the dollar for road purposes), upon the property of complainants and other taxable citizens and residents of said township, which tax they are proceeding to collect from your petitioners, complainants, and the other taxable residents of said township; that no collector has been appointed to collect the said tax as is required by law, but that said supervisors are proceeding and taking the authority upon themselves to collect the same without having authority by law for so doing; averring that said supervisors have not entered into bonds in accordance with the Act of Assembly for the faithful discharge of their duties, and that their action is unauthorized by law and contrary to equity, and operates to the prejudice and against the interest of your complainants ; and praying in the usual form for an injunction to restrain the supervisors from proceeding to collect the special money tax, &c.</p> <p>To this the supervisors replied, admitting the main averments of the bill, and justifying the assessment and collection of the tax on the ground that it was necessary to discharge certain just debts due from the township to former supervisors, and their own action as collectors, because the collector appointed by them for this purpose had refused to perform this duty.</p> <p>On hearing, the court below refused the injunction, and dismissed the complainants’ bill without costs to either party; which was assigned here for error by the complainants.</p> <p>While the case was pending, certain admissions were made by the parties, which are stated in the opinion of this court.</p>

Error, to the Common Pleas of Northumberland county. This was an action of ejectment brought by Rebecca Quinn against William Heart, Mary Jenkins, and Alfred Kneass, to recover possession of a tract of iron ore on land situate in East Buffalo township, Union county, containing twenty-three acres, three perches and allowance. Before the trial the venue was changed to Northumberland county.

<p>Error, to the Common Pleas of Northumberland county.</p> <p>This was an action of covenant, brought November 13th 1860, by William L. Dewart against George Garrett, in which the following case was stated for the opinion of the court:—</p> <p>By articles of agreement, dated the 2d day of March, a. d. 1846, sealed and delivered by and between Lewis Dewart of the one part and George Garrett, the defendant, on the other part, said Lewis Dewart demised and leased unto the said George Garrett a certain messuage and tract of land, of which the said Lewis Dewart was seised in fee simple, situate in Penn township, then in Union, now in Snyder county and state of Pennsylvania, and then occupied by Christian and Henry Martin, for the term of one year, commencing the 1st of April 1846 and ending the 1st April 1847; and by the same articles of agreement the said George Garrett covenanted “ to deliver one-ha.lf of all the grain, wheat, rye, corn, buckwheat, and oats” raised on the demised premises “ to the said Lewis in the mow or corn-crib,» and then to thrash it and deliver it in the bushel in the said Lewis’s storehouse, or in any storehouse in Charlestown, Selinsgrove, or the neighbourhood. The said Lewis’s share of corn to be put into his cribs until he should want it thrashed, then, upon giving the said George information, he to thrash and haul and put it in the storehouse of said Lewis, or in a boat at the canal, or any place in the neighbourhood, at his, George’s, expense — the said Lewis to have one-third of the turnips raised on the place delivered at the barn — the said George to give the said Lewis all the hay and straw, with the grain in or out, raised on the place, to be delivered either in stack or at the barn, but the said George is to have the use of all, or so much of the hay and straw as he might want to feed his cattle for the purpose of making manure for the place, it being the intention of the said Lewis that all the hay and straw should be used on the farm, and that neither party take or suffer any to be taken off of said farm.”</p> <p>Under the said demise and lease the said George Garrett, on the 1st day of April, A. D. 1846, entered into the possession of the said demised premises, and held the same under the said demise and lease, as the tenant of the said Lewis Dewart from year to year, until the death of the said Lewis Dewart, which occurred on the 26th day of April, A. D. 1852. By his will, dated the 10th day of December, A. D. 1851, and duly proved the 12th day of May 1852, the said Lewis Dewart devised the said demised premises and farm in fee simple to William L. Dewmrt, who was also his only child and heir, and is the plaintiff in this action. After the'death of the said Lewis Dewart, the said George Garrett held the said demised premises and farm, under the same demise and lease of the 2d of March 1846, as tenant from year to year of the said William L. Dewart, until the 1st day of April 1859, on which day they, the said William L. Dewart and George Garrett, sealed and delivered the following agreement between them, written upon, the back of the aforesaid articles of agreement between the said Lewis Dewart and George Garrett, dated the 2d day of March 1846, viz.:—</p> <p>“ It is hereby agreed that the within agreement is extended for three years, except that the said George is not hereafter to thrash the corn, but is to thrash and deliver all the other grain as usual whenever I may direct him to do it during each year; he may also sell eleven tons of hay during this term. This extension of the within lease is to run from this date. Witness our hands and seals this 1st day of April 1859.</p> <p>“ W. L. Dewart. [l. s.]</p> <p>“ George Garrett, [l. s.]”</p> <p>“ Witness: S. D. Jordan.”</p> <p>After the death of his father, William L. Dewart executed a mortgage of the said demised premises and farm to J. W. Bassler, to secure the payment of $10,000 to him, which mortgage is dated tbe 23d day of May 1857, and was duly recorded in tbe recorder’s office of Snyder county on the 23d day of November 1857. The said J. W. Bassler afterwards sued out a writ of scire facias upon the said mortgage in the Court of Common Pleas of Snyder county, and recovered judgment thereon for the amount of the said mortgage-money against the said premises. A writ of levare facias was issued out of the said court, No. 5 of May Term 1860, upon the said judgment, by virtue of which writ the sheriff of Snyder county levied upon, and on the 21st day of May 1860 sold the said demised premises to George Schnure and John Hummel, and afterwards, on the 27th day of September 1860, by his deed acknowledged on this last-mentioned day before the said Court of Common Pleas of Snyder county, granted and conveyed the said demised premises unto the said George Schnure and John Hummel and their heirs.</p> <p>George Garrett raised on the said demised premises six hundred and seventy-three bushels and fifty pounds of red wheat, and one hundred and ninety-nine bushels and fifty-four pounds of white wheat, which was sown in the month of September 1859, and harvested and put in the mow in the barn on the said premises in the month of July 1860, and was thrashed during the months of October and November of the same year; also seven hundred and sixty bushels of oats, which was sown in the month of April 1860, and harvested and put in the mow in the barn on the said premises in the month of July of the same year, and thrashed during the months of October and November of the same year.</p> <p>On thé 1st day of August 1860, William L. Dewart served the following notice in writing upon the said George Garrett personally, to wit:—</p> <p>“ Notice to George Garrett, tenant. — I hereby give you notice that I wish you to thrash and deliver, by the 1st day of September next, the landlord’s share of the crop you have just harvested and garnered on the farm you hold as tenant under a lease from me. “ W. L. Dewart.”</p> <p>“ Sunbury, August 1st 1860.”</p> <p>The defendant, George Garrett, has not delivered to the said William L. Dewart the landlord’s share of the said wheat or oats, or any part thereof. The said red wheat is of the value of $1.10 per bushel, the said white wheat is of the value of $1.18 per bushel, and the said oats is of the value of twenty-five cents per bushel.</p> <p>The parties also agree to the following facts, to be considered by the court in the decision of this cause, to wit: — The conditions of the above-mentioned sheriff’s sale, made the 21st day of May 1860, as aforesaid, were that “ 30 per cent, of the purchase-money should be paid when the property was struck down, and the balance at the September court (then) next, when a deed would be acknowledged and delivered by the sheriff to the purchaser.” And the said demised premises were purchased at the said sheriff’s sale by the said George Schnure and John Hummel, on the above-mentioned conditions. On the 26th of May 1860 the sheriff paid into court $14,340, the amount of the purchase-money after deducting the expenses of sale, &c.; and on the same day the said court, on the application of the counsel for the execution-creditor, J. W. Bassler, appointed an auditor to distribute the fund in court to and among the lien-creditors of the said William L. Dewart. On the 25th September 1860 the said auditor made report to the said court of the distribution of the said fund to and among the said creditors, which report on the same day was read and confirmed nisi by the said court, and was confirmed absolutely by the court on the 25th October 1860. On the 26th June 1860, William L. Dewart filed in said court exceptions to the said sheriff’s sale, and the court granted a rule on the parties interested to show cause why the said sale should not be set aside. After argument, the court, on the 27th September 1860, overruled the said exceptions, discharged the said rule to show cause, and ordered the said deed to be acknowledged, and the said sheriff’s deed was acknowledged and delivered the same day as above stated. The said defendant, George Garrett, continued in possession of the said demised premises under the above-mentioned demise and lease until the 1st of April 1861, when he accepted a new lease from the said George Schnure and John Hummel. It is also agreed between the said parties, that the said George Schnure and John Hummel, shortly after the day of the said sheriff’s sale, and before any of the said grain was cut, notified the said George Garrett that they claimed the landlord’s share of the said grain by virtue of their purchase of the said demised premises at the said sheriff’s sale, and required him the said George Garrett not to pay or deliver the said rent to the plaintiff, but to pay and deliver it to them, and that they still claim the same of the said George Garrett.</p> <p>If the court shall be of opinion that said plaintiff was entitled to receive of and from the said defendant the one-half part of the said wheat and oats, then judgment to be entered in favour of the plaintiff for the sum of $677.30, with interest from the 13th November 1860, and costs of suit. But if the court shall be of opinion that the said plaintiff was entitled to receive of and from the said defendant the one-half part of the said wheat, but no part of the said oats, then judgment to be entered in favour of the plaintiff for the sum of $487.30, with interest on the same from the 13th of November 1860, with costs of suit. But if the court shall be of opinion that the said plaintiff was not entitled to recover of and from the said defendant any part of either the said wheat or of the said oats, then judgment to be entered in favour of the defendant? against the plaintiff for the costs of suit. It is agreed that either party shall have the right to sue out and have a writ of error, &c.</p> <p>The court below (Jordan, P. J.) held that the rent had actually accrued; that it wras paid by its delivery into the mow according to the terms of the lease, and was not rent becoming due and payable. Judgment on the ease stated was therefore entered in favour of the plaintiff for the sum of $677.30, with interest from the 13th March 1860 to November 4th 1861, making together the sum of $716.81; which was assigned for error on writ of error purchased by the defendant below.</p> <p>Pending these proceedings Garrett died, and George App, administrator with the will of deceased, was substituted.</p>

<p>Proper Mode of assigning Errors. — Insurance.-—-Destruction of Property in Building described in Policy, a Question of Fact. — Evidence of this Fact derived from Declarations of Company.— Waiver of Statement of Loss. — Additional Insurance, effed of. — “ False Swearing or Fraud,” effect of on Policy. — “ Hazardous Rishs,” ivhat are in Insurance on Merchandise. — List of Items of Loss, when not Evidence.</p> <p>1. Assignments of error in answers to points submitted, setting forth the points only, are insufficient, unless they specify how the court erred, or in what the alleged mistakes consisted.</p> <p>2. It is for the jury to determine as a question of fact from the evidence, whether the merchandise insured was destroyed in the “ building” described in the policy: but if a building contain several store-rooms, and there be any uncertainty as to whether all the rooms were intended, it is fatal to the insurers, for the language of the policy is theirs and is to be construed most strongly against them.</p> <p>3. Where the insurance company had given permission to the assured to enlarge the “ building” in which the merchandise insured was then contained, the same in which it was subsequently burned, and in the permission had mentioned the goods as insured in the building, requiring that no goods should be kept in the second story after the completion of the addition, it is such evidence that the store-rooms of the assured were in the building described in the policy as to justify a submission of the question to the jury.</p> <p>4. The jury must determine from the evidence the degree of particularity in the account of the loss sent to the insurance company the nature of the case admitted of.</p> <p>5. A particular statement of the loss may be waived by the company, and if there be any evidence from which such a waiver may be inferred, is for the jury: where the agent of the company had agreed with the assured to ascertain the amount of their loss from their books, and in the answer sent by the company in reply to the statement of the loss, refusing payment “on account of circumstances connected with the insurance,” there was no objection to the statement sent, the evidence of waiver was sufficient to justify a submission to the jury.</p> <p>O. Though by the policy the assured were required to give notice of all additional insurances made in their behalf, the omission to give notice of an additional insurance not on the same property will not prevent a recovery on the policy after loss.</p> <p>7. To create a forfeiture under a clause in the policy declaring that all false swearing or fraud shall cause a forfeiture of all claims against the insurers, the false swearing must be done wilfully and knowingly with a view to defraud the company!</p> <p>8. An insurance on “merchandise” such as is usually kept in country stores is not void because hardware, china, and glassware, looking-glasses, &c., were not specifically mentioned, if the articles were such as are usually kept in country stores, which was for the jury to determine.</p> <p>9. Where a list of items was taken down by counsel from the testimony of a witness on the trial of the same case before arbitrators; the paper containing it cannot be made evidence on the trial by any answer of the witness as to its ■correctness: nor, where the witness had been called by the defendant, and had stated that at the arbitration he gave a particular account of the items of loss, was it error to refuse to permit the question to be asked by the defendant whether the list then shown to him, as taken down at the arbitration, was a correct statement.</p>

This was a proceeding commenced in the Common Pleas of Montour county, by William Pinneo and Margaret his wife, to assess the damages occasioned by the location and construction of the Lackawanna and Bloomsburg Railroad Company through the lands of the plaintiffs in Mahoning township.

<p>Error to the Common Pleas of Union county.</p> <p>This was an action of ejectment, brought in the court below to February Term 1857, by Abraham Aurand and John Aurand against Charles F. Schaffer, for a house and lot in the borough of Lewisburg, Union county.</p> <p>The plaintiffs were the sheriff’s vendees of the property described in the writ, which was sold under a judgment recovered by them against Charles F. Schaffer.</p> <p>The legal title was in Caroline Schaffer, wife of defendant, who, by leave of court, was admitted to defend.</p> <p>The property had been purchased of John F. Marshall, and the main question was whether the money that was paid for it was or was not the separate property of Mrs. Schaffer. The material facts of the case are fully stated in the opinion of this court. Under these facts, the question of ownership was submitted to the jury, who found for the defendants.</p> <p>The case was thereupon removed into this court, where several specifications of error as to the admission and rejection of testimony were assigned; but as they were not deemed of any importance in the proper disposition of the case, they are omitted.</p> <p>The chief error assigned was the submission of the question of ownership to the jury under the facts given in evidence.</p>

This was an action of trespass, brought August 8th 1860, by Isaac Go¿ild against Jervis Langdon, Alexander S. Diven, Loren A. Ensworth, and Benjamin Taylor, to recover damages alleged to have been sustained in getting saw-logs over the mill-dam of defendants at Williamsport, his saw-mill being about three miles below that place.

This was a bill in equity filed by Robert Ewing in the Eastern District, on a motion for a special injunction before Woodward, J., at Nisi Prius. Unable to hear the case at Philadelphia, in consequence of the commencement of the October term in the Western District, the application was continued to October 29th 1862, when it was heard before a full bench at Pittsburgh.

<p>Contested Election. — Certiorari in, when quashed. — Injunction on Terms. —Evidence in Contested Election. — Amendment of Petition.— Constitutionality of Election Act of 1839.</p> <p>1. A certiorari issued from the Supreme Court may be afterwards quashed, if, on motion made for the purpose, the court think there is no sufficient cause to justify it.</p> <p>2. In urgent and important cases, especially public ones, this court will direct the hearing of the cause, or of some preliminary question in it, in whatever district the court may happen to be sitting when the exigency arises.</p> <p>3. A party accepting a decree in his favour, cannot reject the conditions on which it is made.</p> <p>4. A preliminary injunction is generally granted upon such terms appropriate to the case, as the court may, either on application of counsel, or at its own suggestion, think proper to impose.</p> <p>5. In an election contest, the general return, striking out the illegal votes appearing on it, shows prima jade who is elected; and the contestant, to rebut it, must show fraud or mistake in making up the return, and that the actual facts of the voting are in his favour. The neglect of some of the election officers to file tally papers or return papers with the prothonotary, will not avail him, and a refusal to allow him to aver and prove such neglect is not error.</p> <p>G. The refusal of the court to allow the averment and proof of facts which, if admitted, would not alter the result, is no ground for reversal.</p> <p>7. The petition of the contestants of an election will not be quashed, because certain of its specifications contain contradictory averments. The true way to correct such a fault is to strike out the contradictory parts.</p> <p>8. A commission issued after a proceeding instituted to contest the election, is regarded only as provisional, or as a commission pendente lite, if the proceeding should be successful.</p> <p>9. The Act of 1839, instituting the form of proceeding for contesting elections, and depriving a party claiming a right to a public office by a popular election, of a trial by jury of the disputed facts, is not unconstitutional.</p>

<p>Bonds of the City of Pittsburgh to the Pittsburgh and Connellsville Railroad Company in payment of Subscription to Stock, how authorized and issued.</p> <p>1. The questions already decided in the other oases of railroad subscriptions of like character -to this, will not be again considered.</p> <p>2. Where a subscription to the stock of a railroad company on behalf of a city, is authorized by ordinance, to be made on certain conditions precedent, the subsequent issue of bonds in payment of the subscription proves the conditions to have been either complied with, or waived by the city.</p> <p>3. An ordinance passed February 14th 1853, as authorized by Act of Assembly of April 18th 1843, having directed a.prospective subscription, all legal objections being removed, and an act having been passed April 12th 1853, removing the legal objections, the subsequent subscription is deemed to have been made under the said acts, and the bonds issued therefor, their validity being acquiesced in for years whilst they were passing from hand to hand, are binding on the corporation.</p> <p>4. Where the whole defence is grounded upon alleged neglect on the part of the makers of the bonds, it is not to be favoured. ,</p>

This was a petition by W. Gr. Armstrong for a mandamus to compel tlie respondents to levy and collect a tax for the purpose of paying the interest due and accruing on $750,000 of bonds, issued in payment of a subscription, by the commissioners of Allegheny county, to the capital stock of the Allegheny Valley Railroad Company.

These were actions of covenant, five in number, brought in the court below to March, June, September, and December Terms, by Michael Moyers and Elizabeth Moyers, for use, &c., against William Tiley, Sr. The articles of agreement on which suit was brought contained, among others, the following covenant:— “ The said Moyers, of the first part, doth agree to grant, lease, and demise unto the said Tiley their coal-bank and the appurtenances thereunto belonging, together with the…

In equity. This was an appeal by Da.vid Kennedy from the decree of the District Court of Allegheny county on a hill filed by him against Samuel Kennedy.

This was an issue unrler the Sheriff’s Interpleader Act, in which Nelson Henry was plaintiff, and David Milne, David S. Brown & Co., Wain, Learning & Co. et al. were defendants, to determine whether certain goods levied on by virtue of sundry executions, at the suit of the defendants, against A. A. Mason & Co., of which firm Nathan Whiting was a member, were the property of Nelson Henry, the plaintiff.

This was an action brought by William Neemes against George Selden, on a promissory note drawn by William P. Shattuck, dated September 10th 1861, for $200, payable in four months to the order of A. H. Rowand, Elisha Simpkins, and the defendant.

<p>Error, to the District Court of Allegheny county.</p> <p>This was a scire facias by Jackson O. Wilson, Samuel B. McElroy, and James Einlay, partners doing business as Wilson, McElroy & Co., on' a judgment recovered by them against The Pittsburgh and Youghiogheny Ooal Company, requiring James Meagee, Edward Smith, H. H. Houston, A. M. Hill, George O. Eranciscus, Thomas A. Scott, and Oliver W. Barnes, stockholders in said corporation, to show cause why they should not be added as parties defendant to the judgment, and the plaintiff have execution against them.</p> <p>The case was this : — On the 16th. day of December 1861, the plaintiffs brought suit in the court below against the Pittsburgh and Youghiogheny Ooal Company, a corporation created by Act of Assembly of 11th April 1856, for the purpose of mining, leasing, selling, and transporting coal, upon a note for $629.95; a copy of which, with an affidavit of plaintiffs’ cause of action, was filed in the cause. The note was in the following words:—</p> <p>“$629.95.</p> <p>“Office of the Pittsburgh and Youghiogheny</p> <p>Coal Company.</p> <p>“ Pittsburgh, June 1st 1861.</p> <p>“ Six months after date, the Pittsburgh and Youghiogheny Coal Company promises to pay to the order of W. Little, six hundred and twenty-nine dollars and ninety-five cents, without defalcation, for value received.</p> <p>“ No. 3.</p> <p>Endorsed,</p> <p>“ James Andrews,</p> <p>“W. Little.</p> <p>“President.”</p> <p>The summons was’ served on William H. Barnes, then president of the company. The company made no defence to the action, and, on the 7th day of January 1862, judgment was entered for the plaintiffs for $633.62, in default of an affidavit of defence.</p> <p>On the 19th March 1862, after fieri facias and return of nulla bona, this scire facias issued against the stockholders of the corporation, in accordance with the provisions of the company’s charter. Subsequently, Andrew Carnegie, George W. Cass, William A. Stokes, John E. Thompson, Thomas S. Clark, and William Thaw, were added as stockholders and defendants.</p> <p>The writ of scire facias was served on George W. Cass, Thomas S. Clark, William Thaw, and Andrew Carnegie; nihil as to the others.</p> <p>To this suit W. H. Barnes filed an affidavit of defence, in which he averred that defendants are not liable under the charter of the Pittsburgh and Youghiogheny Coal Company, as stockholders thereof, to pay the sum of $633.62, with interest and costs, recovered in No. 148 of January Term 1862, of the said District Court, and do not owe said amount to said plaintiffs; that said debt was not contracted within a year last past by said company, and that more than -one year has elapsed prior to the commencement of suit against said stockholders, since said liability was incurred or the said debt became due and payable.</p> <p>After plaintiffs’ counsel had moved for judgment for want of a sufficient affidavit, Mr. Barnes filed a supplemental affidavit, in which he deposed that “ William Little was employed by the Pittsburgh and Youghiogheny Coal Company, under the title of president, to manage the property and business of said coal company. It was part of his duties to superintend the working of certain coal-mines, &c., the property of said company; to keep the books and accounts of the company; to receive and pay out all moneys of the said company.</p> <p>“ Whilst said Little .was employed by and for said coal company, he also engaged in the business of a ‘country store,’ at or near the mines of said coal company. Little did the business of this store in the name and style of Bigley & Co., he being a partner in said firm of Bigley & Co.</p> <p>“ The Pittsburgh and Youghiogheny Coal Company had no part or interest in said store, business, or firm of Bigley & Co.; Little being engaged therein for his own special personal profit, and not in any way for the Pittsburgh and Youghiogheny Coal Company.</p> <p>“Bigley & Co. bought goods for the store aforesaid of the plaintiffs, Wilson, McElroy & Co., and for their own account, and not for the account of the said coal company.</p> <p>“Said goods were bought at various times between the 1st day of July 1860 and the 1st day of January 1861. At this date, William Little aforesaid, partner in the firm of Bigley & Co., in his capacity of president of said coal company, did issue the note or obligation of said coal company, in payment of the amount due the plaintiffs, for the goods aforesaid from Bigley & Co., instead of issuing the note or obligation of said Bigley & Co.</p> <p>“ The Pittsburgh and Youghiogheny Coal Company never bought of or dealt with the plaintiffs, and there does not appear on the hooks of the coal company any account with the plaintiffs.</p> <p>“But1 in the ‘Note’ Book of said coal company appears the margin or ‘ stump,’ which reads as follows:—</p> <p>“ Amount, .... $607.27.”</p> <p>“Time, ..... 4 mos.”</p> <p>“To . . . . . Wm. Little.”</p> <p>“Eor . . . Wilson, McE. & Co.”</p> <p>“No.......20.”</p> <p>“Due, ..... May 4.”</p> <p>“ There also appears on the Bills Payable Book the following entry, made by William Little, to wit: ‘January 1st 1861, Wilson, McE. & Co., $607.27.’</p> <p>“Bigley & Co., for their own profit and on their own account, sold goods from their store to the operatives in the employ of said coal company.</p> <p>“ It was the custom of said Bigley & Co. to charge on the books of their store the amounts due for the goods bought by these operatives; and Little, when he made up the pay-rolls for the labour performed by these operatives, deducted from each man’s ■pay the amount he owed Bigley & Co.</p> <p>“ He then summed up all these several amounts, and charged upon the books of the coal company, ‘P. & Y. Coal Co., Dr. to Bigley & Co. for Sundries,’ and at the end of the six months, when he or Bigley & Co. should pay for their purchases for their store, instead of paying for them with their own obligation or money, they used, through William Little, the name and credit of the Pittsburgh and Youghiogheny Coal Company, and this without' the knowledge, or consent, or profit of the said coal ■company. If the Pittsburgh and Youghiogheny Coal Company owe this debt .in suit, they owe it to Bigley & Co., and not to Wilson, McElroy & Co., the plaintiffs.</p> <p>“ William Little used the powers belonging to him as president of the Pittsburgh and Youghiogheny Coal Company to speculate in the capacity of a private merchant, off the wages due the operatives of said coal company. The Pittsburgh and Youghiogheny Coal Company never gave their consent to any such trans-' action.</p> <p>“ This note of $607.27, given January 1st 1861, was paid by the issue of another note of said coal company by their president, James Anderson, on the 1st day of June 1861, at six months, for $629.92, all of which facts as herein contained, deponent expects to be able to prove, at the trial of said cause.”</p> <p>The court below entered judgment against the defendants for want of a sufficient affidavit of defence; which was assigned here for error.</p>

This was an action of ejectment by Edward J.. Grant against Robert Allison, for three hundred acres of land in Limestone township. The material facts of the case were these: — In 1848 Daniel Smith entered and commenced an improvement upon the land in controversy. The improvements made by some prior occupant had disappeared, and the ground on which they had been made had returned to a state of nature.

, of Patrick Mulvany, from the decree of the court confirming the 1 report of the auditor, to whom the account of appellant was referred for resettlement and distribution. All the material facts of the case will be found in the opinion of this court.

This was an appeal by McCombs & Howden, for the use of their assignee, Margaretta Persse, from the decree of the court below on the report of the auditor appointed to distribute the proceeds of the sale of the personal property of S. D. Persse & Co. The case was this: — McCombs & Howden obtained a judgment against S. D. Persse & Co., by confession, April 29th 1861, for $1355.35, on which an execution issued.

In Equity. This was a proceeding in equity on a bill filed by Thomas H. Wilson against Alexander McClurg and William T. McClurg, praying that the entry of satisfaction on a certain judgment on the records of the court against the respondents and in favour of one William Neal be stricken off, and the defendants therein compelled to pay the amount with interest to the complainant, as the equitable owner thereof, which decree was made.

This was an action of ejectment by John B. McDonald and others, claiming under John McKowen, Sr., deceased, against John McKowen, a son of deceased, for a tract of land in Upper St. Clair township. On the trial it was admitted that John McKowen the elder had been the owner of the land in controversy, that he died January 8th 1855, that the plaintiffs were among his heirs at law, and that the defendant was in possession. This was the plaintiffs’ case.

This was an action of ejectment, by Mary IT. Jenks and Anne H. Jenks, by their guardians, against Henry Kinter, Isaac P. Carmalt et al., for three hundred and ninety-six acres of land, in Young township.

This was an action on the case, brought September 6th 1859, by Catharine Henderson against The Pennsylvania Railroad Company, to recover damages for the loss and injury sustained by the death of her husband, caused, as was alleged, by the carelessness and omission of the defendant.

<p>Error to the Common Pleas of Butler county.</p> <p>This was an action of covenant, brought by Elizabeth Graff, executrix, &c., of Henry Graff, against J. M. Kelly and J. P. Jack, executors of John Kelly.</p> <p>The plaintiff declared on articles of agreement, in which Henry Graff covenanted to convey to John Kelly one hundred acres of land in Parker township, for the consideration of $530, payable in three instalments, averring that the two last instalments, with interest, were unpaid, and a willingness in the plaintiff to convey on receipt of the purchase-money; that suit had been brought by plaintiff against Kelly to recover the first instalment, judgment recovered, and the land mentioned in the 'agreement duly sold by the sheriff for $500, by reason of which the title of both Graff and Kelly had vested in the sheriff’s vendee, who was attorney for plaintiff, whereby the performance of the covenants on the part of Henry Graff was excused.</p> <p>To this the defendants demurred, on the ground that the suit and judgment for the amount of the first instalment, and the sheriff’s sale thereon to plaintiffs’ attorney had destroyed and extinguished the agreement, and all covenants therein contained.</p> <p>On argument, the court below (Agnew, P. J.) gave judgment for the defendants on the demurrer.</p> <p>The case was thereupon removed into this court, where the judgment of the court below was assigned for error.</p>

This was an action of trespass, brought by William E. Emerson against Joseph R. Smith, sheriff of Indiana county, for selling a horse which he had levied on and sold, regardless of plaintiff’s claim to exemption under the act exempting goods to the value of $300 from levy and sale on execution.

This was an appeal by Jane'Vandevort, widow of John Vandevort, deceased, from the decree of the Orphans’ Court setting aside the appraisement made for her of the goods and chattels of deceased, under the Act of Assembly allowing the widow and children of a decedent to retain goods, &c., to the value of $300. The appraisement was made in October 1858, soon after the death of Mr. Vandevort; was filed October 13th 1858, and confirmed by the court December 24th following.

<p>Error to tbe District Court of Allegheny county.</p> <p>The facts of this case and points raised by the counsel are sufficiently stated in the opinion of this court.</p>

<p>Action of Dower against Devisee.— Orphans’ Court, power of as to Dower at Common Law. — Election to take under Will, proof and, effect of.</p> <p>1. A widow electing not to take a devise or bequest under the will of her husband, may maintain her action at common law against his devisees, to recover dower out of the lands devised to them, of which he died seised and in possession.</p> <p>2. The Orphans’ Court has no power to assign to a widow common law dower in any case: jurisdiction over actions therefor belongs exclusively to the common law courts.</p> <p>3. An election by a widow to take under her husband’s will in lieu of dower at law, may be evidenced by matter in pais as well as of record: but it must be shown that she had requisite knowledge of the value and character other husband’s estate, and that her intention was consistent with such choice.</p> <p>4. But if, with such knowledge, she receives the bequests in the will, she cannot afterwards claim, that she did not intend to relinquish her dower.</p> <p>5. After seventeen years had elapsed from the tiino of doing acts such as usually constitute an election by a widow, Held, that it could not bo denied by her that they were done in pursuance of an intent to take under the will.</p>

Sitting in Equity. This was a proceeding in equity, founded on a bill.filed by Lewis Plitt, of Johnstown, against John Cox, of Conemaugh, praying for an injunction to restrain the defendant and others under him from entering and building upon a strip of land between the warehouse and a lot of complainant in Conemaugh, which complainant claimed was appurtenant to his lot, and to which defendant had no valid title.

The points in this case arose under a rule, granted on motion of the deféndant in a judgment in the court below, to show cause why an execution in the hands of the sheriff against him should not be restricted to the collection of the judgment and interest up to the date of an attachment execution which had been served upon him.

<p>Capture of insured Steamer by Troops acting under Authority of the Confederate States, effect of on Policy. — “Enemies, Pirates, and Assailing Thieves’’ in Policy, meaning of. — Judgment of Inferior Court not reversed if valid on any Grounds.</p> <p>1. A steamboat insured against perils by “ enemies, pirates, and assailing thieves," and “ all such losses which shall come to the damage of said steamer, according to the true intent and meaning of the policy," was captured by an armed force acting under the authority of the so-called Confederate States of America. In an action on the policy it was Held, That the loss was within the terms of the policy, the general clause “ all such losses,” following the enumerated perils, being in itself sufficient to cover the loss.</p> <p>2. Though the term “ enemies," when rigidly construed means public enemies, so that the policy in strictness would hardly cover the loss, yet as indemnity is the object of insurance, and as it is a rule in marine policies that where the loss is of a like nature with the specified peril, or substantially within its meaning, the underwriters are liable, the loss would be covered by the peril of “ enemies," insured against in the policy.</p> <p>3. The United States government has so conducted and treated the contest between it and the Confederate States so-called, as to make it a war in substance, as essentially as it could be between foreign powers.</p> <p>4. The judgment of an inferior court, will be maintained if sustainable on any ground, though the reasons given in the court below be insufficient: so that, where in the court below it was held that the loss was covered by the term “ enemies,” and in the Supreme Court, that it was in any event, covered by the words “all such losses,” the judgment would be affirmed.</p>

ERR.OR to the District Court of Allegheny county. This was an appeal by William H. Brown from the report of the viewers appointed on the petition of James B. Corey and John H. Peterson, for a lateral railroad. The issues were, 1st, in regard to the title of petitioners to the land and the coal claimed by them in their petition; and, 2d, should that issue be found in favour of petitioners, then the jury was to assess the damages which Brown would sustain.

<p>Error to the Common Pleas of Greene county.</p> <p>This was an appeal from the judgment of a justice of the peace, in an action of assumpsit brought by John Showalter, against Archibald Gump and A. J. Gump, to recover the value of a gray mare, which the plaintiff had received in exchange from defendants, but which having been- stolen, was subsequently reclaimed by the owner.</p> <p>The testimony showed that the mare had been stolen from one William Daw, in Ohio; that she was left by a stranger at the public-house of Mrs. Morris, in Greene county, where she was allowed to remain until the bill for her keeping amounted to over $30, when she was advertised under the Act of April 7th 1807, creating “ a lien in favour of livery-stable keepers and innkeepers, on horses delivered to them to be kept in their stables,” and sold to Elijah Patterson, who sold her to the Messrs. Gump, by whom she was given to the plaintiff in exchange for a horse.</p> <p>The plaintiff claimed to recover on the implied warranty of title, while the defendants insisted that the sale by the innkeeper passed a good title to Mr. Patterson, which title had passed to the plaintiff, and that as he had voluntarily surrendered the mare to Mr. Daw, he could not recover.</p> <p>The court below instructed the jury, that the innkeeper’s sale did not pass title to the purchaser, and that the plaintiff below was entitled to recover the value of the mare at th'e place where she had been exchanged; which was assigned here for error by the defendants.</p>

This was an issue, directed by the court below, to try the valiclity of a judgment which had been entered in the Common Pleas-against John Trainer, in favour of James Dickey, for the use of John W. Turney, under the following circumstances:— George Means was the administrator of the estate of Archibald Dickey, deceased, and John Trainer and Samuel R. Travis were administrators'of the estate of Michael Trainer, deceased.

This was an appeal by Mary Baggs and Sarah Blessing from the decree of the Orphans’ Court on the account of John II. Baughman, administrator of Andrew Hendrickson, deceased. The case was this: — Andrew Hendrickson died about 15th February 1814, unmarried without issue, leaving two sisters of the whole blood, and one half-sister the daughter of his mother. He died intestate, leaving personal estate for distribution. John H. Baughman was appointed administrator of the decedent.

<p>Decree of Subrogation to be reviewed on Appeal and not by Writ of Error. — Parties to Proceedings for equitable Subrogation.</p> <p>1. A plaintiff in a judgment against several defendants, by one of whom it was paid, cannot interfere to prevent a decree of subrogation in favour of the party paying against another of the defendants for his proportion of the debt.</p> <p>2. One of several sureties against whom judgment is obtained may, on payment, be subrogated to the judgment so as to obtain contribution: but where the record of the decree of subrogation does not show that the defendants were not .all sureties, a writ of error to the decree will not lie, because it is founded on the allegation that there is error in the record.</p> <p>3. Subrogation is an equitable remedy, and can be properly reviewed in higher courts only by appeal: and the proceedings therein should be in analogy to equity practice, as by petition and answer, and not on mere motion.</p> <p>4. A writ of error is not an adequate form for the review of equitable remedies.</p>

This was a scire facias on a mortgage for $1000, brought in the name of Samuel Williams, the original mortgagee, for the use of Daniel McMeal, against Louis Shrom, to which defendant pleaded want of consideration, usury and payment with leave, &c., and filed his affidavit of defence admitting an indebtedness of $50, for which he offered to give judgment, which was declined.

This was an action of ejectment by Robert Hill against James B. Hill, for a lot of ground on Penn and Morris streets, in the city of Pittsburgh, 72 by 105 feet, on which a boiler, engines, and stack had'been erected by the parties.

<p>Condition in Restraint of Alienation construed. — Relation of Landlord and Tenant, creation of by Construction.</p> <p>1. A firm R. & J., and another, N., adjoining owners of land, agreed to build an engine, boilers, and stack, on land of the latter, to be used as a common source of power, stipulating in the agreement that the one making the largest offer for the part of the other, should at any time have the pre-emptive right to buy, and that they would not sell their respective premises to any third party without the consent in writing of the other party: by various conveyances N.’s interest became vested in R., as to one-half, and in D., a third party, as to the other half, while the interest of the firm passed by deed from the receiver appointed by the court after dissolution of the firm, to J. In an action of ejectment between them, involving the right to use the engine, &o., it was claimed that the deed from the receiver passed no interest, because of the condition in restraint of alienation. Held, That the condition was only a restraint upon the parties to it, and did not apply to a sale by the act of the law: and that, as it related only to the “ respective premises” of the parties, it was not applicable to the engine, boilers, and stack.</p> <p>2. Where the original agreement was a sale, creating no relation of landlord and tenant between the parties to it, R. could not by his purchase of N.’s interest, become J.’s landlord, nor could J., by disaffirming the title of his alleged landlord, forfeit his rights.</p>