Volume 5 — Pennsylvania State Reports

In error from the District Court for the city and county of Philadelphia. Feb. 24. In an action of covenant a ease was stated in the nature of a special verdict. On the 5th of June, 1832, Webb conveyed a lot of ground to West, subject to a yearly rent of $80, payable semi-annually on the 1st of June and December. Webb subsequently conveyed the rent to the plaintiff. On the 20th Jan. 1840, Connell purchased, at sheriff’s sale, West’s estate in the lot.

<p>Credit allowed for an investment by a guardian in loan of a corporation owning coal lands and a canal, and chartered to carry on the business of mining, shipping, and carrying coal — the company being considered at the time to be safe, and the practice of investing therein common; though, in three years and ten months thereafter, they were obliged to suspend payment of interest, by reason of inundations, which destroyed their canal.</p>

<p>After verdict, a mechanic’s lien was held sufficient, which was filed against a house and lot “ on the N. side of Lombard street, W. of 9th street, adjoining Stephen Smith’s lot on the E.,” the number of stories of the house not being mentioned: the claim being for “ materials, viz., plastering found and provided in the erection, &c., within the six months last past,” a bill of which materials was annexed as follows: — “ To plastering house, &c., $51.68,” there being no date, or further specification of the materials used.</p>

<p>The true construction of the 6th section of the act of April 8, 1833, “ relating to last wills and testaments,” is, that the testator must sign the testamentary instrument by his own proper signature, if be be able todo so; but, if prevented from doing this by sickness, infirmity, or other incapacity, recourse is to be had to the alternative mode of authentication pointed out by the statute, to wit, signing the testator’s name to the instrument, at the end thereof, by some person, in his presence, and by his -express direction 5 and both the incojnpetency and signature by express request must be proved by two witnesses. A “ mark ” made by the party proposing a testamentary disposition is insufficient in any case; and so is the name of such party, written by another party, unless so written in accordance with the directions of the statute.</p> <p>The only legal evidence of testamentary disposition is to be collected from the will itself.</p> <p>A verdict and judgment upon a feigned issue, devisavit vel non, from the registers’ court, being conclusive as to personal, but not as to real estate, such a verdict, &c., is not conclusive upon the validity of a will of a feme covert, under a power reserved, where the property disposed of consisted of the surplus proceeds of the real estate settled to her separate use, on which, under a power reserved, she had given a mortgage, which was sued out, and the property sold, after the trial of the issue devisavit vel non. •</p> <p>A feme covert, who, under a marriage settlement, has a power to sell, mortgage, or devise in fee, real estate settled to her separate use, does not exhaust her power by mortgaging such estate, but may devise the same, subject to the mortgage.</p> <p>On an issue directed to try the title to a fund (being the surplus of a sheriff’s sale of real estate) between the devisee of the former owner and one of her heirs at law— the other heirs are incompetent witnesses against the devisee, although, prior to the commencement of the action under which the sheriff’s sale took place, they had conveyed all their interest in the decedent’s estate to the only party on the record.</p>

The defendant in error having obtained a judgment against Holahan the plaintiff in error entered into a recognisance for stay of execution.

<p>The rule that the assets of a firm must be applied to the. payment .of the ¡partnership debts in the first instance, is founded on the equities between the partners, and not on the rights of the creditors; hence where A. & B,, constituting a. firm by the name of A. .& B., assigned their joint property to pay the creditors of that firm, a creditor -of B. , C. <& Co., of which firm A. & B. are members, may levy on such property, and avoid the assignment, on the ground that it was not recorded.</p>

<p>In error from the District Court of Philadelphia.</p> <p>March 3, 4, and 9. The defendant in error, through an agent who acted without disclosing the agency, employed the defendants below, who were stock-brokers to purchase fifty shares of the Girard Bank stock, which was done, and a loan to pay the purchase-money effected on fifty shares of the Mechanics’ Bank stock, and the stock thus purchased, as collateral security. This loan was extended on the agent’s own notes, endorsed by the plaintiff below, and the security of the stock already mentioned; and subsequently, on new notes being given, a bond of a third person, belonging to the plaintiff, was deposited with defendants, as an additional security. The dividends on the stock, and the money due on the bond, having been received by the defendants and applied to the notes given for the purchase-money.of the Girard stock, an account was stated, the balance paid over, and the notes and shares of Mechanics’ Bank stock, held as collateral, delivered up.</p> <p>The action was assumpsit for money had and received, money lent, and on an account stated.</p> <p>The bill of particulars stated the claim to be for the balance collected on the bond, with interest from the day of receipt, and also for the amount received on the sale of the fifty shares of the Mechanics’ Bank stock belonging to the plaintiff.</p> <p>At the trial before Sharswood, J., the plaintiff, under exception, proved, by E. Y. Howell, the contract, made by him as her agent, with the plaintiffs for the purchase of the stock, and the loan on the securities mentioned above. This was done without his stating that he was acting for the plaintiff. On the 4th Eeb. he received a letter from defendants announcing the purchase for “your account” at' sixty days, buyers’ option after thirty days. Defendants then objected to the witness that he was incompetent in an action by an undisclosed principal; that he was contradicting the writing, and was such an interested witness as was excluded by the recent decisions, and was generally incompetent. The whole of his testimony was also objected to, as the claim made at the trial was not specified in the bill of particulars. Before the day for the delivery of the stock, the witness obtained from the defendants a loan for the amount of their bill, on the security of the stocks above mentioned; subsequently, for convenience, he proposed its extension to nine months. In this letter of the 26th April, he stated he wished to effect a loan on these stocks, “ the lender to be at liberty to sell, should it fall as low as $22 per share, unless other or additional satisfactory security be given,-with full power to yourselves to sell, assign, or transfer the stock. With such power I presume no one need be known in the matter but yourselves. On the 30th January, a bond of J. T. to C. J. Howell,” the plaintiff, “falls due, which renders it desirable to extend the loan to that time.” On the 17th May, defendants replied they had obtained the loan on his note, the collaterals to be the same as they then held, “and the party is willing that we still hold them.” This letter was read in evidence by defendants, as mentioned below. The notes here mentioned were drawn by .the witness and endorsed by plaintiff. The money raised, was applied to the first loan. In the course of renewals, witness’s note at ninety days, for $1760, dated Aug. 23, 1841, endorsed by plaintiff, was given; which plaintiff produced at the trial. This note was paid by a similar one for $1775 75, at ninety days from Nov. 24,1841, which was also produced by plaintiffs at the trial. The defendants here renewed their objection to the witness, but it was overruled.</p> <p>J. T.’s bond, duo Jan. 80, 1842, was also handed over to defendants as a security, and the proceeds received in payment of the note. Defendant’s account showed the amounts to have been $500 and $1761 28, received at different times from the obligor. On cross-examination, the witness stated he was trustee for the plaintiff, who was his sister; that the funds came from her father’s estate; and he had paid for the shares of the Mechanics’ Bank stock by a check, as her trustee; that defendants had never offered to transfer the Girard stock, nor had he demanded it or refused to take it.</p> <p>Plaintiffs then proved, that in 1841, the transfers of the Girard stock were made on the back of the certificates; and also gave in evidence defendant’s letter to E. J. Howell, of May 20, 1841, stating the sale of his note, due 23d August, and that the stock of the Girard and Mechanics’ Banks, “ heretofore in our name as col-laterals, will be retained as security for this note.”</p> <p>In the enclosed account, which was with E. J. IPowell individually, he was charged with the cost of the Girard stock, and credited with the dividends .of the Mechanics’ stock; deducting from this balance the proceeds of his note, there remained a balance due him of $17 75, which he was requested to call for: on the 28th May, 1841, this was paid over. When the money was received on the bond, defendants urged E. J. Howell to settle, and receive the balance due him, as it was deposited in bank; there being then a general suspension, and every security uncertain.</p> <p>On the 7th Feb; 1842, he replied that his sister declined receiving a check on any bank, but would receive specie for hor balance, and that defendants had better keep it until wanted by her.</p> <p>On the 19th Feb. 1842, Mr. Mallery, a member of the bar, wrote the defendants, stating that Dr. E. T. Howell had called on him with reference to some business he wished settled, adding, “from the information the-Doctor has received, he is not satisfied with regard to the alleged purchase of fifty shares of Girard Bank stock, and some matters connected with it, as an explanation would probably satisfy him,” an interview was proposed.</p> <p>This gentleman, in his examination, stated that he accompanied the counsel of defendants to their office, and stated the difficulty was, the allegation that they had not purchased the Girard Bank stock, and held it for the plaintiff; that is, not the identical stock. Papers were exhibited as evidence of the purchase. His impression was, they said it was not necessary to hold the same scrip or Stock, if they had the same kind when called for. No certificates were produced, and no demand was made.</p> <p>One of the officers of the bank stated it was usual to file away the certificates having the transfers endorsed on them; the mode of transfer on the books he was ignorant of, not being in that department.</p> <p>Plaintiff having closed, the defendants called on plaintiff to produce certain papers and letters enumerated in a rule of court taken under the act of Assembly on the 4th of May, 1844; made absolute as to the papers therein mentioned, Sept. 17. All these documents were produced except the letter from defendants to Dr. Howell, dated May 17, 1841. A nonsuit having been moved for, the plaintiffs called E. Y. Howell, who stated he was the agent of the plaintiff, lived with her, and had access to all her papers, and the custody of them; he was under the impression that this letter was in the bundle of papers delivered to Mr. Mallery on the occasion mentioned by him above. When that bundle was returned, it was not among them; he had made several searches for it without success, considering it important.</p> <p>Mr. Mallery stated he had delivered the papers in his possession to Dr. Howell, or the counsel for the plaintiff; he had not made a particular search, but had looked among his papers and found nbne relating to this suit. The motion for a nonsuit was then renewed, and refused, and an exception noted. Defendants also moved for the withdrawal of a juror, and a continuance, which was refused and exception taken. Defendants then called Harris, a broker, who proved his original bill of sale, and that on the 4th of Eeb. 1841, he had sold to plaintiff fifty shares of stock at sixty days, deliverable after thirty days, at buyer’s option, on payment of $1625. That on the 6th of April he delivered the stock, but could not state how; he said there were two methods, one by certificate and blank power, and the other by a transfer at the bank to the order of the purchaser. Whether he had a certificate for fifty shares at that time he could not say; he might have had a largb one, and put part to order ; or several smaller ones; or have given the larger certificate and taken a smaller one in change. It was usual to let the stock lie to order until -it was wanted. He also proved the payment for the stock. The learned judge refused to permit the witness to answer the question, whether it was usual, when several orders are left standing to the credit of a party, for the bank, there being no special orders or directions, to give one certificate for the whole. The witness was unable to say whether he had the stock on the day of sale, and could not tell from the stock ledger; hut it was obtained by the day of delivery; whether by putting to order or by á certificate he could not say.</p> <p>The defendants then read the letter of the 7th February, from E. Y. Howell, which was post-marked Philadelphia, Feb. 12, already mentioned; and also one from the same, dated the 11th, post-marked as the last, and of the same tenor, adding that his sister was willing defendants might use the money due her until wanted by her.</p> <p>They then read a press copy of the letter of the 17th May, mentioned in the rule to produce; its contents have been already stated; also the check to the broker, and E. Y. Howell’s receipt in full for the balance due him, being $17 50, on the 28th May, 1841, mentioned above. Also a letter front the plaintiff’s counsel, June 22, 1842, stating his client’s desire to receive the fifty shares of the Mechanics’ Bank stock, transferred to plaintiffs and held as collateral for the note endorsed by her, which had been paid and delivered up.</p> <p>On the 24th, this stock was transferred; on the 27th of May, the balance of the. account, $514 96, stated with Dr. Howell, was received by Dr. Howell and the plaintiff, and also his note of Nov. 24, 1841, without prejudice to any claim either might have on defendants. In this account the debit side was the amount of the note, and the credit the amount of the receipts on the bond.</p> <p>His honor instructed the jury that it was incumbent on the plaintiff to show that the renewed note was given without any consideration ; if so the defendant had no right to apply the proceeds of the bond to the payment of it. If it was without consideration, its redelivery was unnecessary. Whether it was without consideration was the main point: if the stock was not purchased as alleged, of course there was no consideration. The testimony of Harris, if relied on, sufficiently made out a purchase for the purpose of this case. When the stock was .purchased and pledged as collateral security to the defendants, their character of agent ceased, and they became pawnees, pledgees, or bailees. If, when they received it under this engagement to hold it as a security for their loan or advance, they threw it undistinguished into the general mass 'of their own stock, or that of other persons in their custody, or parted with it, though they may have replaced it with other stock of the same kind; — if when the debt was paid and the pledge redeemed, they had not the same identical stock in their possession which they originally purchased and held for plaintiff, then plaintiff was entitled to a verdict. The question whether the identical stock was retained for delivery was submitted to the jury as one of fact.</p> <p>His honour further instructed the jury, that if Dr. Howell was believed, the letter of the 26th April, 1841, did not, as the plaintiffs contended, constitute the contract, and they, had no power to sell at any time. If that letter was the contract, then the power to sell depended on the stock falling below $22, and satisfactory security not being furnished; that it appeared the bond was furnished as satisfactory security : if so, they had no such power. If they did sell, it was for them to show where and for how much; and if, when called upon, they neither produced the identical stock nor gave any account of it, this would be a good defence to the note, and the plaintiff be entitled to recover.</p> <p>The errors assigned were, First: 1. In admitting Dr. Howell as a witness; 2. In refusing a nonsuit for the non-production of the letter under the order of court; 8. In admitting Howell as a witness to account for the non-production of the paper, and refusing a nonsuit after his examination and that of Mr. Mallery; 4. In refusing to continue the cause under these circumstances; 5. In overruling the question to Harris; 6. In admitting Howell’s testimony under the bill of particulars. Second: In charging, 1. That it was unnecessary to return the note of November 14,1841, before a recovery could be had; 2. .That a recovery coiild be had under the bill of particulars; 3. That a recovery could be had if defendants had either parted with the stock or mixed it with their own, so that it could not be distinguished or discriminated; 4. That a demand of the Girard stock was unnecessary; 5. As to the effect of the letter of April 26, 1841; 6. That the drawer or endorser of the note of' November 24 might have shown, in a suit on it, that it was given without consideration, or that the consideration had failed, and, if such were the facts, the money received on the bond might be recovered under the bill of particulars.</p>

<p>In error from the Quarter Sessions of Philadelphia county.</p> <p>March 5 and 8. — The indictment in this case contained five counts, the first and fourth of which were as follows:</p> <p>1. The grand inquest, &c., do present, that John H. Hartmann, late of said county, yeoman, Granville Hartmann, late of said county, yeoman, William C. Harris, late of said county, yeoman, together with divers others, whose names to the inquest aforesaid are unknown, being evil-disposed persons,- and wickedly devising and intending to defraud and prejudice certain persons hereinafter mentioned, on the first day of September, in the year eighteen hundred and forty-six, at the city and county aforesaid, .and within the jurisdiction of this court, with force and arms, did, amongst themselves, conspire, combine, confederate, and agree together, falsely and fraudulently to cheat and defraud Aaron Arnold and James M. Constable, partners in trade, under the name of A. Arnold and Company, and divers other persons, then and there being the' creditors of John M. Little and the said John H. Hartmann, trading under the name of Little & Hartmann, the said other persons being by name to the said inquest unknown, by removing and secreting divers goods and merchandises, then and there belonging to the said firm of Little & Hartmann, of great value, to wit, of the value of five thousand dollars, the description, quantity and quality of the said goods and merchandises being as yet unknown, to the said inquest, and thereby preventing them from being made liable for the payment of the debts dne by the said firm of Little & Hartmann to the said Aaron Arnold and James M. Constable, partners in trade, under the name of A. Arnold and Company, and the said other creditors of the said firm of Little & Hartmann, with intent to defraud the said Aaron Arnold and James M, Constable, partners in trade, under the name of A. Arnold and Company, and the said other creditors, to the evil example of others, in the like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania.</p> <p>4. And the inquest, &c., do further present, that the said John H. Hartmann, Granville Hartmann, and .William C. Harris, together with others unknown to the said inquest, being evil-disposed persons, and wickedly .devising and intending to cheat and defraud certain persons hereinafter named, on the first day of September, in the year eighteen hundred and forty-six, at the city and county aforesaid, and within the jurisdiction of this court, with force and arms, did amongst themselves unlawfully and wickedly conspire, combine, confederate, and agree together, to cheat and defraud Aaron Arnold and James M. Constable, partners in trade, under the name of A. Arnold and Company, and divers other persons, whose names to the grand inquest' are unknown, to the evil example of all others in the like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania. .</p> <p>The second count was in the same-form as the first, laying a conspiracy to remove and secrete the goods, to prevent their being levied on for debts due to Arnold & Co. and to other persons unknown.</p> <p>The third laid a removal and a secreting, in pursuance of the conspiracy, in the same manner as in the first count.</p> <p>The fourth laid a removal and secreting, in pursuance of the conspiracy, and concluded against the form of the statute in such ease, &c.</p> <p>The two Hartmanns having been found guilty, the court (Parsons, J.) passed sentence as follows: “Each of the above-named defendants is adjudged by the said court to pay a fine of one hundred and fifty dollars each to the Commonwealth, undergo an imprisonment in separate or solitary confinement at labour, in the State penitentiary for the eastern district of Pennsylvania, for the term of eighteen calendar months, to be there fed, clothed, and in all respects treated as the law directs; that they pay the costs of prosecution, and stand committed until the judgment be fully complied with.”</p> <p>The errors assigned in the indictment were:</p> <p>1. Because the first, second, third, and fifth counts thereof do not sufficiently describe the alleged offence in the words of the statute; nor describe the property alleged to have been removed and secreted; nor specify the nature and amounts of the debts; nor the names of the several creditors; nor allege that the debtor was insolvent and without sufficient property to pay his debts, other than that referred to in the indictment.</p> <p>2. Because the fourth count does not specify and set forth any goods, moneys, or other property, out of which the defendants are alleged to have conspired to defraud the persons therein named; and because the said count is uncertain, general, and vague.</p> <p>3. Because the act of 1842 repealed and annulled all prior laws and statutes relating to the subject matter of the indictment.</p> <p>The indictment and entire proceedings in the court below were irregular and illegal, and in violation of the third, eighth, six. teenth, and other sections of the act of 1842, which prescribed the proper remedy in such cases.</p> <p>In the sentence:</p> <p>1. In imposing imprisonment in the penitentiary.</p> <p>2. In imposing imprisonment for more than one year.</p> <p>3. The act of 1842 limits the punishment to a fine and imprisonment not exceeding one year; and the act of 1835 directs that the place of confinement in such cases shall be the Philadelphia County Prison.</p>

<p>Under the act of the 16th April, 1838, a deputy marshal of the United States is incompetent to hold the office of commissioner of the Incorporated District of Penn, though there are no fees or perquisites annexed to office.</p>

<p>Error to the Court of Common Pleas of Philadelphia county.</p> <p>March 10 and 11. — This was a feigned issue in the court below, directed to try the right of Adrian P. Destapies to recover the amount of his interest or proportion of $23,454 92, awarded to Honoré Fournier, the assignee of Anthony Daussat, by the commissioners under the treaty of July 4, 1831, between the United States of America and France, for said Daussat’s claim for his interest in the brig Fox, Captain Cullen, which claim included one hundred and thirty bags of coffee, the property of said Destapies, the value of which was included in the said award to the said assignee.</p> <p>At the trial on the 25th of January, 1845,'before Parsons, J., the plaintiff gave in evidence proceedings in the Court of Common Pleas of Philadelphia county, by which Fournier was removed from the trust as assignee, on the 30th April, 1836, and the defendant in this issue appointed assignee of the estate of Anthony Daussat, and also the auditor’s report upon his accounts, in which the claim made before the auditor on behalf of Adrian P. Destapies, and the disposition made in regard to it, is stated as follows:—</p> <p>“ Before proceeding to notice the claims under the assignment, it is proper to advert to the claim of Mr. Destapies for a portion of the funds in the Pands of the assignee, which he alleges belongs specifically to him, and does not form any part of the assigned estate.</p> <p>“ The fund in the hands of the assignee consists of moneys received from the United States, as indemnity for French spoliations.</p> <p>“Mr. Curcier, as attorney of Honoré Fournier, the assignee for the creditors of Daussat, presented to the commissioners under the convention with France, memorial 1597, claiming indemnity for a shipment made by A. Daussat to St. Sebastian, on board the brig Fox, consisting of one hundred boxes white Havana sugar, thirty-two tierces and one hundred and ninety-four bags coffee, invoiced clear of charges at $14,577 26. In the invoice, Destapies was interested to the value of one hundred and thirty bags of coffee, weighing fifteen thousand four hundred and forty-six pounds.</p> <p>“ The commissioners under the French treaty awarded on the whole invoice the sum of $23,454 92; Mr. Destapies’ interest in the invoice being $3,552 58; his proportion of the sum allowed •would.be $5,716 12.</p> <p>u On the sum allowed, instalments amounting in the whole to 59|j| per cent, have been paid, making for Mr. Lestapies’ proportion .........$8,893 47 On which interest to 10th February, 1842, is . . i,036 51</p> <p>$4,429 98</p> <p>“ Mr. Lestapies now claims to recover this sum, as money specifically belonging to him, which never passed under the assignment for the creditors of Mr. Laussat, but remained impressed with a trust for Mr. Lestapies, and which he has a right to follow specifically.</p> <p>“ His right to this money was not admitted; but, on the contrary, was contested before the auditor, and an issue demanded to try the question.</p> <p>“ The auditor accordingly does not undertake to decide upon the merits of the claim, but leaves an amount in the hands of the assignee reasonably sufficient to cover the demand with interest and costs; without at present reporting the distribution thereof.”</p> <p>The plaintiff then called Joseph A. Clay, a witness, who testified as follows:—</p> <p>“ The original claim of Laussat’s assignee for the brig Fox was $20,734 77; the amended claim before the commissioners was $23,746 75; the commissioners awarded the sum of $23,454 92. I was the agent of the assignee, and attended before them. The particulars of Mr. Laussat’s claim were:</p> <p>Cost of 100 boxes white Havana sugar, short price . . . §4,433 14</p> <p>“ 32 tierces coifee ........ 6,109 92</p> <p>“ 194 bags do.......... 4,034 20</p> <p>§14,577 26</p> <p>Charges, commission, &c......... 455 45</p> <p>Correct by comparison with the original invoice .... §15,023 71</p> <p>Premium of insurance at 25 per cent, and 2¿ per cent, abatement as usual required to cover......... 5,706 06</p> <p>§20,734 77</p> <p>The abatement of this claim, according to the market value at St. Sebastian, was:</p> <p>100 boxes white Havana sugar, net American weight . . . lbs. 26,606</p> <p>Deduct 1<j per cent....... . . . 399</p> <p>Spanish weight...... lbs. 26,207</p> <p>Spanish weight, 26,207 lbs., at 34 cts. §8,910 38</p> <p>194 bags03 §reen coffee, net American weight, Deduct 14 per cent. 47,998 720</p> <p>Spanish weight lbs. 47,278</p> <p>At 42j cents..........$20,093 15</p> <p>Add sugar ...........8,910 38</p> <p>$29,003 53</p> <p>Deduct freight as per freight list . . . . . . 2,618 26</p> <p>$26,385 27</p> <p>Deduct 10 per cent, to cover duties and charges .... 2,638 52</p> <p>$23,746 75</p> <p>The plaintiff also produced, and gave in evidence, an invoice signed by Anthony Laussat, dated 10th October, 1809, in the words and figures following, to wit:</p> <p>invoice of one hundred and thirty bags of coffee shipped by A. Laussat, on account and risk of Mr. J. G. de Villanueva, on board the brig Fox, Capt. Thomas Cullen, bound to St. Sebastian, and addressed for sale and return to Mr. John Ribaut, supercargo on board, viz. :</p> <p>^ ^ 130 bags coffee weighing 15,546 lbs. net, at 17¿ .... $2,720 55</p> <p> Charges. </p> <p>Permit ..........$0 70</p> <p>Porterage, 12 loads at 33 cts. ..... 3 96</p> <p>Certificate of property at the custom-house ... 20</p> <p>Do. at the consul’s...... 2 00 6 86</p> <p>$2,727 41</p> <p>Philadelphia, 10th October, 1809.</p> <p>A. Laussat.</p> <p>And also the acknowledgment of Anthony Laussat, dated 14th October, 1809, signed by him, in the following words, to wit:—</p> <p>I do hereby certify to have shipped the goods mentioned in the annexed invoice, amounting to thirteen thousand two hundred sixty-seven dollars forty-eight cents, on account and risk of Mr. J. Gr. de Villanueva on board the brig Squirrel, Captain Jacob Wing, bound to St. Sebastian, and consigned for sale and return to Mr. John Bonnett, supercargo on board of said brig, and that he owns jointly with me, one-third of said brig Squirrel, the other two-thirds being owned by Mr. Abram Peash, and Mr. J. W. Foussatt.</p> <p>“ I also acknowledge that I have shipped on account of said Mr. J. Gr. Villanueva, one hundred and thirty bags of coffee, amounting as per the annexed invoice, to two thousand seven hundred and twenty-seven dollars and forty-one cents, on board the brig Fox, Captain Thomas Cullen, bound to St. Sebastian, and consigned for sale and return to Mr. John Ribaut, supercargo on board.</p> <p>“ Of the whole of which I will render him an account, and pay him, or his order, the net proceeds as soon as I will be in cash for the same.</p> <p>«It being understood that by consent of Mr. J. Gr. de Villaneuva, I have instructed the two above-mentioned supercargoes to, remit me, by the return of said vessels, the amount of the outward invoices in such goods as they will think best for this market, and the profits to bring them to me in good bills of exchange on London, provided they can purchase them fifteen per cent, below par; otherwise to deposit the amount of said profits in the hands of Mr. Justine Foussatt, merchant at Bourdeaux, subject to my orders in the same manner as I have ordered them to do with my adventure on board the same vessel. In witness whereof I have signed this. Philadelphia, the 14th October, 1809.</p> <p>“A. Laussat.”</p> <p>On which was endorsed, in the handwriting of Lestapies, “ 14 Octobre, 1809, Reconnoissanees de A. Laussat relatives á mon interet dans les bricks Squirrel et Fox.”</p> <p>• The plaintiff also read in evidence the testimony of Andrew Curcier, now deceased, given in the case of Lestapies, (the above-named plaintiff,) and Levis, formerly assignee of A. Laussat’s estate, in, the District Court for the city and .county of Philadelphia, in the following words, to wit:</p> <p>“ I knew Mr. Lestapies and Mr. Villanueva; they were the .same person; the endorsement, (the paper of 14th October, 1809, signed A. Laussat, shown to the witness,) is in Mr. Lestapies’ handwriting ; in the year 1802 or 1803, the Spanish government used to supply the French government with a great deal of money; he was the confidential clerk of Hope & Co., and was sent to Vera Cruz to receive the money from the Spanish government; there was a Spanish law that would not allow a foreigner to go to those countries to settle; he was obliged to take a Spanish name; he took that of Villanueva; he spoke the language like a Spaniard; he was from Bearn, on the Pyrenees. I knew all about the interest of 1 Villanueva, in the Squirrel and Fox; Lestapies took his interest back from the Squirrel when she returned; it was talked of at the time between them. I had conversation with Levis; he said he had received the money, and would not let it go out again. My impression is that he, Lestapies, was'naturalized; I believe he was naturalized here.”</p> <p>The plaintiff also produced .Peter Bousquet, a witness, who being sworn, testified as follows: — “ I knew Mr. Peter Lestapies, and well, by the name of Villanueva, as agent of the house of Hope & Co., when he went to Vera Cruz to receive a large sum of money. He and Mr. Parish were agents of Hope & Co. He was here in 1808 and 1809; I do not know his handwriting.”</p> <p>The above-stated testimony and evidence having been given, and the plaintiffs having admitted that said plaintiff was not, in 1809, or at any time since, an American citizen, but a native of Bearn in France, and the defendant having given no testimony or evidence, prayed the court to instruct the jury: -</p> <p>1. That the claim for the proceeds of the said one hundred and thirty bags of coffee, belonging to the said plaintiff, and the amount of indemnity awarded for the same by the commissioners, under the treaty with France of 4th July, 1831, did not pass under the assignment of Anthony Laussat, of 8th June, 1819, but remained the property of said Lestapies, and that he was entitled to recover, from the assignee of said Laussat’s estate, such proportion of the amount received, as indemnity for said Laussat’s claim for the Fox’s cargo, as would have been awarded to him, said Lestapies, by the commissioners upon a claim by himself for indemnity for the said one hundred and thirty bags of coffee.</p> <p>2. That there is nothing in the provisions of the treaty or convention between the United States and France of the 4th July, 1831, or in those of the act of Congress, to carry the same into effect, passed July 13th, 1832, to prevent a recovery by the plaintiff in this action; which instruction so prayed for, the court refused to give, and charged the jury as follows:</p> <p>“ All the facts'in this case are admitted, and the questions raised for óur decision are questions of law which necessarily arise from the facts thus conceded in the cause.</p> <p>“ The fund of money for distribution was awarded to the assignee •of Anthony Laussat, for the loss of the brig Fox, in pursuance of a treaty between this government and France, of the 4th of July, 1831.</p> <p>“ It is manifest that Laussat was not the owner of all the property on board the ship, and particularly the one hundred and thirty bags of coffee, and if there was .nothing in the case but the facts briefly stated in the plaintiff’s first point, I should be disposed to instruct the jury that the plaintiff was entitled to recover. But it is admitted by the counsel for the plaintiff, that when the property was shipped the plaintiff was a citizen of France, and not an American citizen, nor is there any evidence that he ever was a citizen of the United States ; hence it is contended by the counsel for the defendant that he is not entitled to recover — upon the ground that the treaty with France, by our government, ratified in 1831, embraced only American citizens, and that France, by that treaty, never stipulated to give money for the loss of property suffered by the subjects of her own government.'</p> <p>“ The question is one of considerable importance, and I am satisfied the counsel on both sides desire it settled by the court of last resort. I shall therefore give that opinion on the law which appears to me to be the correct one, and raise the question broadly for the ultimate determination of the Supreme Court.</p> <p>« Hence the court instruct you, that should the jury believe the whole evidence in the case, the plaintiff is not entitled to recover, upon the grounds that the' indemnity given by the treaty for the loss of property by American citizens, does not embrace the citizens of France for any loss they may have sustained. The plaintiff being a citizen of France when his property was lost, is not entitled to the benefits of that treaty nor to the funds now in the hands of the assignee for distribution. We therefore say, that under the law, the defendant is entitled to your verdict.”</p> <p>The counsel for the plaintiff excepted to the charge of the court, and requested that the same may be reduced to writing and filed of record, which was done.</p> <p>The plaintiff in error assigns,</p> <p>1. General errors; and also,</p> <p>2. The following specific error: Because the court instructed the jury, that should the jury believe the whole evidence in the cause, the plaintiff is not entitled to recover, upon the ground that the indemnity given by the treaty of 4th July, 1881, between the United States and France, for the loss of property by American citizens, does not embrace the citizens of France for any loss they may have sustained. The plaintiff being a citizen of France when his property was lost, is not entitled to the benefit of that treaty, nor to the fund now in the hands of the assignee for distribution.</p>

<p>In error from the Quarter Sessions of Pike county.</p> <p>March 15. — The first count of the hill of indictment in this case, as it was laid before the grand jury, charged William Shouse, the plaintiff in error, and Jacob Shouse, with two others, with “riotously, routously, and unlawfully” meeting together and tearing down the dwelling-house of one Wells. The second count laid an assault and battery in the same manner. The third laid an unlawful assembling to disturb the peace, &c., under similar words. The grand jury found a true bill against all the defendants for a riot, and “ for an assault and battery” against William and John Shouse, (who was not named in the bill.) On the trial, the jury found defendants not guilty of the riot, and plaintiff in error guilty of assault and battery. The sentence was a fine of six cents and costs. A motion in arrest of judgment had been made and overruled, on the ground that William Shouse could not, under the indictment, be convicted of a common assault and battery. The three errors assigned will be found in the opinion of Mr. Justice Burnside.</p>

<p>Appeal from the Orphans’ Court of Northampton county.</p> <p>March 15. Dietterich was the guardian of Elizabeth Heft, and from the final decree of the court on his accounts both parties appealed. In August, 1835, the guardian filed his first account for the preceding five years, in which he charged himself with various sums received, and interest on portions thereof loaned by him, showing a balance of $3934 10.</p> <p>In January, 1843, on a citation at the instance of the ward’s father, he filed a second account charging himself with interest on the balance of the former account, and with some small sums received since then, and showing a balance in favour of the ward of $5708 03. He also there stated that the funds were invested ip a judgment against John Dietterich for $2694 86: a judgment, and a mortgage of two others, and a note of William Dietterich for $700, “the recovery, of which is doubtful.”</p> <p>On the 26.th January, 1844, in pursuance of a citation at the instance of the ward, the guardian filed his final account, in which he charged himself with interest on the balance of the second account, and claiming credit for expenses and payments to the ward, and for the amount of the loan to William Dietterich, who had assigned and been discharged as a bankrupt, admitted a balance in favour of the ward of $8898 76. This account having been referred to auditors, they restated it; and, allowing $100 as retained to meet contingencies, charged him with interest on the various items of credit in the account, calculating it from sixty days after the respective receipts, and averaging the interest as to the first item, which was composed of several sums. Rests were made on the 1st of May, 1833,1836,. 1839, and 1842, and the general balance on each rest, (which was in part made up of interest,) was carried into the subsequent account, and interest charged on the whole sum. They also included in the charge the amount loaned to William Dietterich, with interest from the .date thereof.</p> <p>Evidence of William Dietterich’s credit was given by both parties, and it was far from good, judging from the whole of the testimony..</p> <p>The guardian also claimed credit for the difference between the amount of the judgment, interest and costs against John Dietterich, which secured the loan of the ward’s money to him, and the price at which the guardian had been obliged to purchase the land at a sheriff’s sale under that judgment being $2500, whicjh difference was $578 65. On this point the accountant gave very strong evidence that the value of the land far exceeded the amount of the judgment. The ward gave evidence that at a previous sale, adjourned with the guardian’s assent, a responsible bid of $3000 was made, and that since then the guardian had sold the property for $3500, $1000 cash, and the balance secured by bond and mortgage, payable in three annual instalments. It also appeared that a purchaser could have been had at $1000 down, balance in one year, at the sheriff’s sale, but for the'refusal of the ward’s agent to accede to any terms but cash. The guardian had also offered to the ward the securities received by him on his sale, but they were rejected.</p> <p>The court also decreed interest on the balance found due to the ward from the time of the filing of the final account. The exceptions to this report by the guardian were: that more interest was charged than could have been made j the triennial rests; in charging Mm with the loan to William Dietterich, and refusing credit for the loss on that to John Dietterich; and the charge of interest during the investigation.</p> <p>In the appeal by Snyder, the husband of the ward, the exceptions were: in not maMng annual rests; in allowing $80 for counsel fees; in allowing too much compensation; (the allowance was $120 in every triennial account, and $100 for the last two years;) in charging the estate with auditor’s fees and expenses of witnesses. (This was based on an omission from the account of an item of charge, amounting to $16 66, which was the one-seventh of a sum received by the guardian on account of the ward and six others, in 1837. The account was corrected by the auditor in August, 1845, as to tMs item, shortly after it was pointed out.)</p>

From the Orphans’ Court of Northampton county. March 17,18. Michael Kachlein, one of the executors of Peter Kachlein, filed his account, charging himself with the amount of testator’s goods sold, $88 27, and taking credit for $246 17, which was composed in part of $96 74, for expenses incurred in making partition according to the directions of the will, and $100 for commissions in settling the real and personal estate.

<p>Error to the court of Common. Pleas of Montgomery county.</p> <p>March 22. — The defendant in error brought an action on the case against William Hillegass for wrongfully building a dam on a creek below the plaintiff’s mill, and thereby flooding his mill-wheel, &c. The first exception was to the admission of the deed to the plaintiff, by the executors of F. Hillegass, dated upwards of fourteen years before the action. The ground of objection was that the grantee was one of the executors, and the will directed a public sale, of which there was no evidence. The defendant below was in no way connected with the trust, so far as appeared from the record. The second exception was to the admission of the record of a recovery for a similar erection, brought by plaintiff below against defendant below with others, with notice to D. P., guardian of William Hillegass: the sheriff’s return was “served defendants.” The objection was that there was no service on the defendant, who was a minor over fourteen years of age. The third exception is stated by Mr. Justice Coulter. The fourth was to the rejection of ■ evidence that defendant was a minor at the service of the writ in this case, and had a guardian. Since his majority, however, he had pleaded to the action. The fifth was in rejecting a plea of infancy.</p>

March 22. On petition, &c., a report of a jury laying out a public road from'the Ridge turnpike to the river Schuylkill was confirmed nisi. On petition of review the jury reported adversely.

<p>Appeal from the Orphans’ Court of Montgomery county.</p> <p>March 23. The administrators de bonis non of John Lentz, filed their accounts in May, 1845, charging themselves with the proceeds of the real estate of the decedent, which was sold under proceedings in partition. The question was,- their right to a credit on the 1st April, 1845, for the “ balance due Catherine Lentz, $1782 24, as per former settlement of the administrators of (decedent), with interest on said balance for nineteen years, $3813 19.”</p> <p>Catherine Lentz was the acting administratrix of decedent, who died in 1812, and in 1824 had filed an account showing a balance in her favour of $1782 24.</p> <p>Wallace, the exceptor in this proceeding, was the husband of a daughter of the decedent and Catherine Lentz; the different provisions in their wills rendering it a matter of importance to him whether the fund would pass under that of his wife’s father, or that of her mother. One of the children proved that her mother had paid the debts of the father out of her own land, sold for that purpose, and that « we all agreed she should have the money that she put into father’s estatethat all the heirs, including Mrs. Wallace before her marriage, agreed to this arrangement. The remaining testimony was not stated on the paper book, but was rather vaguely referred to by the auditor; nor can the time when the debt was paid, or the promise made, be exactly gathered from the report.</p> <p>The court below (Krause, P. J.) was of opinion that the promise by the heirs was sufficient to entitle her estate to the fund.</p> <p>This allowance was the only matter of exception to the decree,</p>

<p>In error from the Common Pleas of Montgomery county.</p> <p>March 23. « H. Rittenhouse, intermarried with Eliza, late Eliza Norman,” plaintiff, brought an ejectment for land which was the property of Eliza. The writ recited “ the right of possession or title to which he, the said II. R., saith is in him, and not in,” &c.</p> <p>The court below (Krause, P. J.) decided the joinder of the wife as a party was unnecessary.</p>

<p>In error from tbe Common Pleas of Montgomery county.</p> <p>March 24. The question argued here.was, whether the court was right in directing the condition to be attached to the plaintiffs’ verdict. On the trial, it appeared that Hauberger, who with his wife were the plaintiffs, had made an assignment of his property, in 1840, in trust for creditors, including the land in question. The plaintiff proved, that, on the day the land was sold by the assignee, and previously, two persons, at the request of his wife, had applied to her father to purchase the property at the public sale, as she would have nothing to live on if it was sold. They said to him that she “had a great deal more to get than the lots would come to,” which he admitted; and that he had promised his daughter, the plaintiff’s wife, that he would buy them in. These persons were then ignorant of the existence of a will of the father. He subsequently gave instructions to buy the land at the sale, desiring that Hauberger, the plaintiff, might release all his interest, and offering, if he would release his right to the surplus under the assignment, so that he could have nothing more to do with it, and could not spend it, he would pay his debts. The witness said “this might come off her portion;” to which the father made no reply. On the 1st of January, 1841, the day of the sale, plaintiff released to his assignee, in trust for the separate use of his wife, all interest in the surplus under the assignment, which amounted to about $700; and the assignee conveyed all his interest to the executors of J. Root, on April 9,1841. The defendants, under objection, gave in evidence the will of J. Root, the father, which directed that two-thirds of the residue of his estate should be paid to such person as his executors should appoint in trust for the separate use of plaintiff’s wife (and another married daughter) for life — remainder equally among their children ; and declaring that a sum of money paid by him to plaintiff should be in full of his legacy out of the estate. This will was dated May 1, 1840, and defendants were appointed executors. Under objection, they also showed the conveyance of April-9, 1841, by the assignee of Hauberger, to themselves, in fulfilment of a sale made January 1, 1841, to their testator, under which they entered. The amount bid at that sale was $580, which was reduced in consequence of the bidders being apprized of the intentions of the buyer to purchase in trust for plaintiff’s wife. They also gave in evidence, that Jacob Root had said he would pay the money for the land, as she (the wife) might as well have her part over there as in the place, which was on the opposite side of the river.</p> <p>Before closing his case, plaintiff offered, that if there was a verdict for him, a trustee might be appointed, under the direction of the court, to take charge of the .lands, for the separate use of Mrs. Hauberger.</p> <p>The defendants offered to make a deed to a trustee, lawfully appointed, to secure a separate estate to the wife for this and the other property purchased at the assignee’s sale, upon the same trusts provided in the will as to her portion of the personal property, upon a release of so much, on account' of the legacy, as was paid for that property at the sale.</p> <p>The charge of the court (Krause, P. J.) calling these similar agreements, was the fourth error assigned. The first three were to the evidence, and are detailed in the opinion of this court, as is the fifth, which was to a sentence in the charge.</p>

In error from the Common Pleas of Montgomery county. March 24. This was an action of trespass vi et armis, q. c. f. et de bonis asp. commenced in June, 1842, which was referred by the defendants in December following. The arbitrators awarded no cause of action, and plaintiffs appealed. After the appeal, the narr. was filed in July, 1844, for entering the plaintiff’s close, and carrying away certain railroad iron.

<p>In error from the Common Pleas of Montgomery county.</p> <p>Case stated, with leave to bring a writ of error. Two questions were submitted to the court below: 1. Whether the attachment execution could be regularly issued by the justice without a sei. fa. post an. et diem et q. e. n. previous to the execution returned nulla bona, after which return the present writ was issued. 2. Whether the funds were liable in the hands of the garnishees. The facts material to the first point were, that a judgment was obtained against the defendant before a justice of the peace, on the 22d December, 1838. On the 25th of May, 1846, an execution issued, and was returned nulla bona. On the 31st of the succeeding August, this attachment was issued, and the Burgesses, &c., of Norristown, summoned as garnishees. It was on this that the second question was raised. The plea of the garnishees, that the money in their hands was the wages of a labourer in the hands of his employer, was overruled, and interrogatories were filed. The answers stated that the garnishees had no other property of defendants in their hands than a debt of $80, a part of which was due at the service of the writ, for work done in grading and excavating a Btreet in the borough, which was not finished at the time the writ was served. The defendant had agreed to do the work at twenty cents per cubic yard, one-half payable as the work progressed, and one-half when completed. That the work done, at the service of the writ, made the account against the garnishees $110, from which were to be deducted previous orders presented for payment. There was no written contract between the parties. The work was done by the defendant, and a sufficient number of men to keep two carts and two or three horses employed.</p> <p>The court (Krause, P. J.) considered the attachment as regular, on the authority of Dailey v. Straus, 2 Barr, 401. On the second point, he was of opinion that the funds were wages due the defendant, and not liable to attachment under the act of April 15, 1845, § 5, p. 460, and therefore reversed the judgment of the justice against the garnishees.</p>

<p>In error from the Common Pleas of Montgomery county.</p> <p>March 26. The only question in this cause was the right to maintain the action. It was an action on the case, in which ■ the plaintiff in his'amended narr. set out a joint right in himself, being the owner of a mill, and in defendant, the owner of another mill higher up the stream, to the use of tÉe water of the Manatawny creek, for their respective mills, and that being seised, &c., he entered into articles for the sale'of his mill, &c., to T. & J. Varney, and that at the time of the commission of the grievances, in the year 1844, the said mill, &c., was in the possession and occupation of the said Varneys or their tenants. That defendant unlawfully used the water of the creek for his mill, in such a manner as altogether to deprive the lower mill of the use of the water; in consequence of which, the Varneys were compelled to abandon their contract, whereby the plaintiff was aggrieved in the loss of the sale to the Varneys, and in his inheritance and estate in the lower mill.</p> <p>On the trial, having shown title to the mill and stream, as laid in the narr., the plaintiff gave in evidence the articles between himself and the Varneys, dated July 12,1843, whereby he sold to them the lower mill, with other property, for f14,000, payable $500 in three months after possession taken; $500 in October 1, 1844; $1000 in October 1, 1845, and so on in yearly instalments: after the payment of the third instalment, the Varneys were to give a bond and mortgage on the land for the residue. Ives further agreed, that on the payment of the first-mentioned sum of $500, he would convey to the Varneys, they giving a bond and mortgage to him (for the unpaid purchase-money.)</p> <p>The Varneys entered and remained in possession until this contract was rescinded, and so far as appears, there was no other payment on account of the purchase-money than the sum of $5, at the execution of the articles.</p> <p>The court (Krause, P. J.) rejected all evidence of the acts of the defendant after possession taken by the Varneys under the contract, and up to the time that plaintiff regained possession on its rescission. They also refused to hear evidence showing the abandonment of the contract by the Varneys, by reason of the acts of defendant, in cutting off the water from the mill.</p> <p>The court instructed the jury to find for defendant, saying that the Varneys were the equitable owners, and entitled to recover for all injuries, to the freehold, &c., during the continuance of their title and possession, and there was no evidence of any injury before or after the existence of that estate.</p>

<p>Proceedings by the guardians of the poor against a husband, to compel maintenance of his deserted wife and children, cannot be removed by certiorari, from the Quarter Sessions to the Supreme Court, for the purpose of trial.</p> <p>The jurisdiction of the Supreme Court over proceedings of inferior jurisdictions specially delegated by statute is revisory; and it is confined to the examination of the regularity of such proceedings, and whether their jurisdiction has been exceeded.</p>

<p>In error from the Common Pleas of Montgomery county.</p> <p>March 29, 30. This was an action of trespass by the plaintiff in error, in which the title to the locus in quo was the question. The plaintiff claimed title by a deed in 1746, from Bmlen to Lardner, conveying “ a certain mill-dam or pond,of water, and mill-race or stream of water, issuing and proceeding from the said mill-dam or pond of water, as the same is now situate, and being in and upon a certain tract or parcel of land situate in the manor of Springfield, together also with the site and soil of the said mill-pond or dam and race of water, and also one perch of land on each and every side of the said pond, or dam and race of water, to and for the use and service of a certain mill, with the land thereto, belonging, and for no other use whatsoever. The said perch of land to be taken and laid out from the centre or middle of the said mill-race, and from the' edge of the water round or" on the outside of the said pond, if his, the said George, Emlen’s land shall extend one perch beyond the said dam or pond, or otherwise, so far as the said George Emlen’s land doth extend beyond the said pond, not exceeding one perch; And also, full and free liberty and privilege to and for the said Lynford Lardner, his heirs and assigns, of egress and regress to and from the said mill-pond and race, to repair, support, and maintain the same for the use and service of the said mill. ' [The liberty and privilege of making bridges, and hedges or fences across the said mill-race, and of passing and repassing over and along the same to and from the adjacent land of the said George Emlen, so as such bridges, hedges or fences, do not obstruct, hinder, or prejudice the same race or pond of water, or either of them, excepted and hereby reserved to the said George Emlen, his heirs and assigns.]”</p> <p>On the same day, and for the same consideration, Lardner conveyed to Emlen five acres of land, “ excepting and always reserving unto the said Lynford Lardner, his heirs and assigns, out of this present grant and release, a certain mill-race or stream of water running across the hereby granted land to and for the use and service of his the said Lynford Lardner’s paper-mill,1 and also the site and soil of the said mill-race or stream, together with one perch of land along and on each side of the said mill-race or stream of water with full and free liberty and privilege to and for the said George Emlen, his heirs and assigns, to make one or more bridge or bridges over the said hereby excepted mill-race, so as not to prejudice, obstruct, dam up, or divert the same race or stream of water.”</p> <p>Lardner’s title to the mill, “together with the mill-dam, millrace, and pond of water, and the site, soil, and privileges,” became vested in Scheetz, the elder, who devised to Justus Scheetz. The site of the mill-pond, in which the trespass was committed, is now in Dublin township. In 1834, the sheriff, under a judgment and execution against Justus Scheetz, levied on and sold to the present plaintiff the mill and tract of 'land, containing ninety-four acres in ■Springfield township, with the appurtenances. The plaintiff gave evidence that a tenant of Emlen’s land, (now owned by defendant,) about forty years before this action, had put up and repaired the fence around the margin of the mill-pond, as it then stood. About 1817, Justus Scheetz dug a trench through the pond, which had become in part filled up, thereby draining a large portion of the former site. It was shortly after this that he commenced ploughing and cultivating it, which was continued by the sheriff’s vendee.</p> <p>In 1812, the heirs of Emlen conveyed to Stackert the tract out of which the site of the mill-pond had been granted, “ with the reversions and remainders,” &c., «excepting and always reserving, nevertheless, out of this present grant, all and every such parts and parcels of the lands and premises herein above described, and all the waters, mill-dam and mill-race, water-courses, rights of soil, lanes, passages, rights and privileges whatsoever, which any person or persons whatsoever, according to the original grant to George Emlen, the father of the said Caleb Emlen,'deceased, or by any deed or writing under the hand and seal of the said George Emlen, (or of the said Caleb Emlen, if any,) are seised of or entitled thereto.”</p> <p>The action was brought in 1842, for taking grass from the site of the mill-pond, which had been drained and converted into meadow. There was conflicting evidence as to defendant’s acts of ownership and possession, which was left to the jury under instructions by the court (Krause, P. J.) on the following points of law arising thereon. As to Emlen’s deed to Lardner, they said, “ that it conveys land, and not merely an easement or incorporeal hereditament, by the words ‘ site and soil,’ they being as strong to convey land, as the words ‘debts, dues, and demands, real, personal, and mixed,’ coupled with ‘ heirs and assigns,’ are to convey the fee; and these latter words have been-held, 12 Serg. & Rawle, 269, to convey a fee-simple in land. And the thing granted is not so vaguely described as to fall under the censure of Stambaugh ¶. Ilollabaugh, 10 Serg. & Rawle, 357; but rather within the cases cited by Mr. Justice Duncan as good, viz.: ‘ a moiety of a yard of land lying in a great waste — ’ and ‘ twenty acres, parcel of the grantor’s land — ’ But Emlen' did not convey a fee-simple estate in that land. He conveyed a qualified fee, determinable on the abandonment by Lardner, his heirs or assigns, of the use and service for which the conveyance was made, as stated in his deed. And in conveying such limited fee, he retained the reversion in himself; and that he could permit to descend, or sell to others. To convey such limited fee, and to retain the reversion, was his intention, as the court collects it from his deed; and such intention of the grantor, when legal, is the governing principle in construing _ conveyances; 4 Dal. 347; 3 Watts & Serg. 303; 2 Binn. 537, 544. Lynford Lardner therefore acquired an estate in this pond and mill-race as land to be held by him, his-heirs and assigns, so long, and no longer, as he or they continued tg use them for the purpose stated; and necessarily they reverted to Emlen, or his heirs or assigns, as the case might be, whenever that purpose was abandoned; and the land was subjected to other uses.”</p> <p>And further: “That the right of way to support, repair, and maintain this dam and race1 is an appurtenance to them, the grant being entire, and inclusive of all for -the same ‘ use and service;’ and therefore, if the dam, and the site, and soil have .been abandoned as a use and service of the mill described, all that is contained in the grant, reverted together, to Emlen, his heirs or assigns, from the date of such abandonment.”</p> <p>That if the clearing, &e., was-commenced by Justus'Scheetz in 1817, there the use and right, being diverted from, the purposes of the original grant, reverted and became vested in Emlen or his assigns, and the present plaintiff did not acquire it as an appur tenant to the mill; and, unless it was included in the levy by the sheriff, it did not pass at all. That the recital in Emlen’s deed to Lardner was notice, and- the purchaser was bound by its restrictions. Therefore the plaintiff could not tack his adverse possession to that of Justus Scheetz, and if that commenced in 1817, that point was out of the case; since . his possession was interrupted by the plaintiff, under the levy and sale, before.it had been continued adversely for twenty-one years. As to Scheetz’s possession prior to 1817, it was not hostile unless he had done some act, and shown a clear intention to abandon the right under the Emlen deed, and the limitation there prescribed; until then, he held under one title with Emlen, both together constituting one fee-simple, and Emlen having an interest which would sustain an action for a permanent injury to the freehold.</p> <p>The errors assigned were, in the construction of Emlen’s deed; in ruling that the sheriff’s vendee did not purchase this tract, if the use for the mill was then abandoned, and it was not included in the levy; and as to the effect of the possession prior to the user for other purposes than those designated in the deed; and that Emlen’s title was vested in the plaintiffs if there had been such an abandonment.</p>

<p>In error from the Common Pleas of Montgomery county.</p> <p>March 30, 31. This was an ejectment for certain property known as “the Gulf Mill.” The plaintiff showed a sheriff’s sale in April, 1833, to James Wells, for $2,600; a deed in December following, from Wells to Jacob Freedley, acknowledged May 1, 1834, and recorded April 11, the consideration named being |T,600; and a conveyance by Jacob Freedley and wife to the plaintiffs, on the 28th June, 1842. This deed was an indenture between Freedley et ux., and D. Wood et ux., of the first and second parts, reciting proceedings in bankruptcy against the said Freedley and Wood, partners, and their desire to deliver up all their property to trustees, to be distributed as provided for in the Bankrupt law, to save trouble and expense, whereby the said parties, of the first and second parts, granted, &c., to plaintiffs “ all their individual estate, real, personal, and mixed, and all debts, rights, and credits, (excepting articles exempted from execution not exceeding in value $300,) in trust to sell,” and to apply the proceeds of the separate property to the separate debts, and the joint property to the joint debts; the residue of the partners’ separate estates were to be applied to the joint debts, “ agreeably to the spirit of sect. 14 of the Bankrupt law.” Provided that no creditor should be entitled to a dividend who did not present his claim within three months, and “ execute an agreement covenanting to deliver a full and absolute release to the said parties of the first and second parts, on his or their receiving his or their share of the estate hereby assigned.”</p> <p>On the 15th June, the proceedings in bankruptcy were discontinued by the creditors withdrawing their petition.</p> <p>The plaintiffs then proved the execution of the agreement to release, by certain of the creditors; the exact time was not known, but it appeared to have been in some instances shortly after its date, which was July 12, 1842. This agreement was an indenture, between plaintiffs, “being two of the .creditors of Freedley and Wood, and executing the deed for themselves and all other creditors who have hereunto set their- hands and seals;” and the said Jacob Freedley and D. Wood, reciting the assignment above-mentioned, and the covenant on the part of the plaintiffs and other creditors of Freedley and Wood, to comply with the proviso therein contained, in order to entitle them to a-dividend, and covenanting by plaintiffs in their own behalf, and on behalf of all the other subscribing creditors, “ that they and each of them shall and' will, on his or their receiving his or their share of the estate so as aforesaid assigned, duly seal and execute unto them, the said Jacob Freedley and D. Wood, a full and absolute release of all actions, accounts, claims, debts, &c., up to the day of such release. This was sealed by forty-one individuals or firms. The plaintiffs further showed an inventory of the assigned estate, made by appraisers on petition of the assignees. In this, the property in question was enumerated and valued at $8,000; Jacob Freedley’s debts were also stated at $48,341, and Freedley & Wood’s at $10,910. This was filed July 5, before the execution of the release, but there was nothing connecting defendant with it.</p> <p>The defendant, John Freedley, had been admitted as landlord: his title was a deed by James Wells, dated April 8, 1833, but not recorded, reciting the purchase by him at the sheriff’s sale for $2,600, for the use and at the instance of John Freedley; and that John Freedley had that day paid him the said amount, and instructed him to take the title in his own name, and declaring the trust for John Freedloy, and covenanting to convey on request. Wells proved the purchase by himself at John Freedlcy’s instance; that Freedley had paid the purchase-money to him, and that this deed was executed and delivered about the day of its date. He further proved that he executed the conveyance to Jacob Freedley, (part of plaintiffs’ title,) at the request of John Freedley, and that the consideration there mentioned was nominal.</p> <p>The defendant then gave in evidence a deed poll, dated April 1, acknowledged May 27, 1842, and recorded January 9, 1843, by Jacob Freedley and wife, reciting the purchase by John Freedley, the payment of the purchase-money by him, and the taking of the legal estate, in trust for him, and conveying the property in dispute to John Freedley, in fee.</p> <p>The defendant further gave evidence of notice to the assignees before the appraisement was made, that Jacob Freedley had no title to this property, and also proved he had always accounted for the rents, and made leases under directions from John. The plaintiffs gave evidence of acts of ownership by Jacob, and offered to show his indebtedness; alleging that these credits were obtained on the faith of the ownership of the property. But one point, however, was raised in this cause, under the instructions of Burnside, J., (then President Judge of the district,) that, if the jury found Jacob to have been but a trustee for John, who paid the purchase-money, and to whom the rents were accounted for, then this estate did not pass under the general words in the assignment, though there was the agreement to release, (which, for the purposes of the cause, was to be treated as a release,) and the recording acts had nothing to do with it. Nor would John’s title be affected by his having permitted Jacob t'x manage it, lease, &c., thereby acquiring a false credit. That rule prevailed in regard to chattels personal, but not to real property.</p> <p>The cause was argued at a former term, and now by</p>

March 81, and April 3. — This was a case stated for the opinion of this court. Smith, a native of New Jersey, afterwards domiciled in Philadelphia, and at the time of his death domiciled in Paris, bequeathed 30,000 francs to one Briel, a native and resident of France. The executor, defendant, residing in Philadelphia, took out letters here.

<p>In error from the Common Pleas of Montgomery county.</p> <p>April 3, 12, and 13. On the trial of this scire facias, the plaintiffs read in evidence the claim filed as a lien, on the 9th of March, 1843, in which it was stated that the plaintiffs, “ house carpenters, contractors with (defendants) for putting up the basement walls, doing the carpenter work, and plastering the hereinafter described buildings, and for furnishing the lumber for the erection of the same, file this their lien,” &c.</p> <p>The schedule annexed contained a list of twelve items of materials,' with the respective dates at which they were delivered, with one gross amount charged for the same, together with the charges made for the work done, in five items. At the foot it was thus stated: “Whole amount of materials and work, $1372 47.” “The said buildings having been erected by contract for said sum of $1372 47.” A credit was allowed, and the balance divided, for which separate writs issued against the property and terre-tenants.</p> <p>They then read their sealed contract with defendants, “ to erect, build, and finish one house, except painting and plastering, for the sum hereafter mentioned; also another one against the one mentioned in the space of six months, except painting and brick-work,’* in consideration whereof defendants agreed to pay $1331 22.</p> <p>Hudson, as terre-tenant, read in evidence an assignment by defendants to Freedley and another, in trust for creditors, on the 8th of March, 1843, and a .conveyance by them for a consideration named, and receipted for, dated the 18th, and recorded the 20th of September, 1843; but, so far as appeared from the record, did not prove the payment of the consideration — no question appearing to have been made on that point in the court below. The defendants also read the record of a proceeding, by a joint sci. fa., against both houses, under this lien; an award and appeal by defendants, which action was discontinued by the plaintiffs by leave of the court, November 9, 1843. On the 10th the present writ issued.</p> <p>The court (Krause, P. J.) told the jury that the Supreme Court had settled the law at the time of Hudson’s purchase for a valuable consideration, that there was no lien in such a case, the plaintiffs being coiitractors, as appeared from their own evidence. If they believed these facts, the defendants were entitled to a verdict; the act of 1845 not affecting their rights thus acquired.</p>

In error from tbe Common Pleas of Delaware county. April 5. In this action tbe plaintiff declared: 1. For not accepting goods according to contract. 2. For damages on a re-sale; and 3. For goods sol'd. The pleas were, non-assumpsit and payment. On the trial, the plaintiff showed a written order for the purchase by the plaintiff, on account of defendant, of various parcels of scantling, plank, and boards, the gross prices of each lot being set down in the margin.

April 7. This was an action against Mercer as endorser of a promissory note, the execution and protest of which, with the notary’s recital of notice by depositing the same in the West Chester post-office, was proved by the plaintiff. It appeared that the drawer, haying purchased goods of one Marshall, had given his two notes therefor, with Lancaster as surety.

In error from the Common Pleas of Chester county. April 9. Isaac Pennock devised the rents, &c., of his real -estate to his wife, for life, and all his personal estate, including ground rents, bank stock, &c., to her absolutely, “having full confidence that she will leave the surplus to be divided at her.decease, justly among my children. ”(a) He then devised to his two sons two farms, of one of which George W. Pennock became seised thereby, subject to his mother’s…

Upon a reference to an auditor of the accounts of the assignee, for the creditors of Laussatt, a suggestion was made by the auditor, on which the court of Common Pleas directed an issue to try the right of the administrator of the former assignee, who had been removed by order of the court, and who claimed for payments and advances alleged to have been made for the benefit of the estate; the matter still remaining before,the auditor to await the determination of this issue.

In error from the District Court of Philadelphia. This was an action against the payee of a note, on his endorsement in'blank, the plaintiff being the next endorser.

<p>In error from the District Court of Philadelphia.</p> <p>Feb. 22, 28 — April 14, 15. This was an action of covenant by defendants in error on a covenant of guaranty by the testator of the plaintiffs in error. .</p> <p>It appeared that on the 11th September, 1834, Wm. M. Bozarth borrowed $4000 from the plaintiffs below,- on a bond and mortgage on a house in Filbert street. By a deed dated the 13th September, reciting the bond and mortgage, “ and that the said sum was lent to W. M. B..on condition of the guaranty of L. Ellmaker,” in consL deration thereof Ellmaker covenanted that in case the said messuage should be sold at sheriff’s sale, under proceedings on the mortgage, or otherwise, and should not produce enough to satisfy the said debt of $4000, with interest, &c., over all prior liens, he would pay plaintiffs so much, as should he wanting to satisfy the said debt, &c.; with a further covenant that the house and lot'Ayero clear of all claims for the erection of the same. A parol agreement of even date, signed on behalf of the plaintiffs, was underwritten as follows:</p> <p>“It is agreed that' when and so soon as the sum of $750 shall be paid to the Franklin Fire Insurance Company, in part satisfaction of the principal of the above-mentioned bond, the foregoing guaranty shall be cancelled, and the paper delivered up to .the aforesaid L. Ellmaker; provided that sufficient releases of the liens of mechanics and others concerned in the erecting or constructing of the said building!, shall previously thereto be produced and filed -in the office of the said company.”</p> <p>In 1835 proceedings were had on the bond, the property sold by the -sheriff and purchased for the use of the plaintiffs, and the proceeds distributed. The amount received by the plaintiffs was $1447 36, the residue 'having been applied. to the mechanics’ liens, &c.</p> <p>The pleas were covenants performed, and set-off. Under the latter, the defendants proved the plaintiffs’ policy of insurance on two unfinished houses to Ellmaker, and gave evidence of the loss thereon by fire. By the conditions it was required that each house should be separately insured, and in like manner, a separate sum insured on the property. The only question arising on the evidence on this point, Ayas from the proof that the wood-Avork for one house Ayas “ got out” and deposited in the other.</p> <p>To show a fraud in holding, Ellmaker liable, under the written contract, beyond the $750, the defendants called a witness, who stated that when the guaranty was brought to Ellmaker, he declined signing, thinking it was too binding on him; that Ellmaker then Ayrote something on a paper and handed it to the agent of the company; and afterwards said he would go as far as $750, and no further. The houses for Avhich the money was borroAved Avere on lots purchased from Ellmaker on ground-rent. At a subsequent period, the witness had seen the guaranty Ayith the addition to it, in Mr. Ell-maker’s hands.</p> <p>The court rejected testimony ,to show a contract between Wm. M. Bozarth and plaintiffs, by which he was to be permitted to make sale of the property for an amount exceeding the debt, and that ■while this Avas in force, and in violation thereof, and without notice to him, the proceedings and sheriff’s sale were had; and also, in addition,, that as a consideration therefor, W. M. Bozarth contracted to pay that and another debt he owed the company, on a mortgage of property, already sold for a less sum than was secured thereon. Also in addition thereto, a similar contract by W. Bozarth, (the father of W. M. Bozarth,) after the sheriff’s sale, and before the deed, was acknowledged. The court said this was irrelevant. The defendant then offered to prove, in addition to the former offers, that W. Bozarth offered' his own personal responsibility for payment of the debt of W. M. Bozarth, who was insolvent. This was objected to as not admissible under the pleadings, and rejected, and a bill of exceptions sealed; no previous exception appears to have’been noted on the subject of this testimony.</p> <p>His honour (Jones, J.) instructed the jury, that by the terms of the agreement, Ellmaker could have discharged himself from his obligation by paying $750, and procuring releases of the liens. That the payment of the money out of the proceeds of the sheriff’s sale, and the discharge of the liens thereby, was not a compliance with the agreement, as it was obviously the intention of the parties to have a security clear of, liens, eased by a partial payment, and they must disregard-W. M. Bozarth’s testimony, as it did not relate to the time of the execution of the guaranty, since, besides other reasons, he said that afterwards he had seen it in Mr. Ellmaker’s possession, and until ■ a delivery by him, about which the witness knew nothing, it would not be a valid instrument. . Mr. Ellmaker had, therefore, ample time for deliberation, after the conversation proved, before the completion of the contract, by delivery of the instrument, which, therefore, alone1 constituted the evidence of the contract. As to the measure of damages, that was the difference between the sums guarantied and received, for this was not in the nature of a penalty, being the exact sum which the plaintiff had a right to enforce from Bozarth, and this agreement was but a collateral guard or,security. As to the set-off, the .only liability,of the plaintiffs was to the loss by the fire, with interest on that amount, and not to damages for non-payment on the day, — nor for the woodwork got out for one-house, but not deposited therein. ■</p> <p>The rejection of the evidence, and the instruction to the jury thereon; the construction of the guaranty, and the rule as to defendant’s liability on the policies, were the errors assigned.</p>

Certieicatb from the Nisi Prius. February 18 — April 15,16. This was a case stated for the decision of the court, whether the plaintiff was entitled to recover, all questions on the form of the action being waived.

April 22, 23. On the 4th of June, 1838, Webb and others, members of the board and trustees of the Pennsylvania Hall Association, presented their petition to the Court of Criminal Sessions for the city and county of Philadelphia, setting forth the act of Junej 1836, relating to compensation for the destruction of buildings, &c., by a mob or riot in the city or county of Philadelphia; and averring that the association of which they were trustees had erected a building in the…

In error from tbe District Court of Lancaster. May 10. This was an action of trover, in which the questions were, 1. The measure of damages; the goods having been delivered after suit brought. ’. 2. A landlord’s right to straw where the tenant held on shares; and 8. An objection to the form of the action, the parties being landlord and tenant on shares, and there having been no severance, which exception was not made in the court below.

<p>In error from the District Court of Lancaster.</p> <p>May 10. This was an ejectment against the plaintiff in error, on the trial of which the plaintiff gave in evidence the petition and order of sale, in the Orphan’s Court, of tho land of William Kerr, (under whom both parties claimed,) made in 1820. In 1821, the administrator of Kerr returned a sale of one-third of the land, (the premises in question,) to James Mitchell, one of the heirs, at eight dollars per acre, and of the remaining two-thirds to the guardian of two of the children of William Kerr, at tho same rate. The deed from the administrator, in 1822, recited the order and sale, and conveyed “ one-third of the same, at eight dollars per acre, to James Mitchell; said Mitchell being intermarried with Martha Kerr, daughter of the said William Kerr, deceased.”</p> <p>In 1841, Mitchell confessed a judgment in favour of Honry Kintzer. Mitchell dying, the defendant below, who was bis widow, took out letters of administration. A sci. fa. to revive, then issued against her as administratrix, and judgment was rendered for want of a plea. Under this, a sheriff’s sale of James Mitchell’s land was regularly made and perfected.</p> <p>The defendant then offered in evidence the proceedings in partition, in the Orphan’s Court, in 1818, of tho land of William Kerr, on the petition of James Mitchell and others, in which there was a return of partition, and a refusal by tbe heirs to accept. This was overruled.</p> <p>The defendant then offered to show (in substance) that the heirs being dissatisfied with tho valuation, Mitchell (her husband) procured the land to be divided into three equal parts, so that each heir might be accommodated; that he selected the one in controversy, and the guardian of the remaining two heirs took the two others; the valuation being set by agreement, with the widow’s assent, merely to determine the interest which should be paid to her; and it was then agreed the return should be made of a sale to the heirs; but in fact there was no sale, — Mitchell paying nothing, and-agreeing to hold it In trust for his wife. That he and his wife continued on the land until 1841, when he beat her and drove her from his doors. After his death she entered and remained in possession. That this judgment was given, merely to destroy her right; that the plaintiff therein was the real purchaser, by his son, the present plaintiff, and knew of the fraud'in the judgment, and-the antecedent circumstances.</p> <p>This was overruled, and was the error assigned.</p>

In error from the Common Pleas of Lancaster. May 10. This was an action of assumpsit by Small against Mosher, Moorhead and seventeen others. The declaration setting forth the service of the writ on Mosher alone, and the return of nihil as to the others, averred the making of a note by the defendants, their promise and non-performance.

In error from the Common Pleas of Lancaster. Forney, administrator of Smith, declared in assumpsit, brought in 1845, against Benedict, administrator de bonis non, e. t. a. of Sumner, for money lent to his testator in 1834; in the first count laying the promise in that year; in the second count laying a promise by Reigart, his executor, in 1840; and in the third laying a promise by the present defendant, in 1845.

In error from the District Court of Lancaster. May 12. This was an action on a lost bond for $2000, which was proved; the balance due at the time of the loss being $1750; and a receipt under seal for $250, being in full, “ and the last on that bond of all demand,” was shown by the defendant, with evidence of the admissions by the plaintiff of a final settlement.

<p>On a feigned issue to try the validity of a judgment confessed by one who had assigned for creditors, a writ of error docs not lie; the remedy is by appeal.</p> <p>In such case, the proceedings are not de novo, but the appellant is confined to the evidence given below, unless there was no opportunity to produce it, or it be afterwards discovered.</p> <p>Evidence received before auditors who conceived themselves not entitled to decide the question in issue, and their opinions on the merits of the controversy, are of little weight against a verdict, on an issue directed thereon, especially if the party omit to give evidence on the trial, as to those matters which were controverted before the auditors.</p> <p>Where a judgment preferred in an assignment has been paid by the assignee under an indemnity, its validity and consideration is as much open to contest by other creditors as if it had not been paid.</p>

In error from the District Court of Lancaster. Hiestand, by his will, bequeathed to his wife a sum of money, “ rvhich shall remain in this property situate, &c., of which she shall receive the interest, payable quarterly.” He then devised the land at a valuation, part of which charge was given to the devisee,. part constituted the charge in favour of the widow, other portions were given to testator’s children,.and made payable out of the land, and a part was not disposed of.

From tbe Common Pleas of ■ York. May 17. The land of Meisenhelter having been sold by the sheriff, auditors were appointed to make distribution, who awarded the proceeds to his judgment creditors, and a mechanic’s lien. Exceptions were filed to this report by the appellant and others, and an issue asked, to try their right to priority of lien as legatees of a former owner.

In error from the Common Pleas of York. May 17. This was an ejectment for about six acres of land, on the trial of which the plaintiif gave in evidence a sheriff’s deed for a large tract, with conveyances to ’himself, and proved that he had lived thereon, and had farmed the piece of ground in controversy with his own land for upwards of forty years.

<p>Bond by committee of a lunatic to R., Governor of Pennsylvania, with condition that the committee should take care of the person and estate of A., the lunatic, and shouid yearly, during the lunacy, account with the Court of Common Pleas, or those by it appointed; and when the lunacy ceased, pay over to A. and account with him for the proceeds of the estate beyond the debts; and abide all order and decrees in the matter of said lunacy, held good in an action against the surety by S., the present governor, as successor of R., to the use of the substituted committee.</p> <p>Bonds taken under statutes which do not prescribe a form, are not avoided by conditions beyond the demand of the statutes when the conditions are severable: such conditions are treated as surplusage.</p>

In error from the Common Pleas of York. Debt on bond to August Term, 1845.

May 18. In the year 1810, John Small made his will, wherein he authorized his executors, with the consent of his widow, who was devisee for life, to sell such parts of his real and personal estate as should be sufficient to pay his debts; and appointed Ms wife and Joseph and Jacob Small executors. Probate having been granted to Joseph and Jacob, and the latter dying, the former settled his account, and was discharged from the office in 1832.

In error from the Common Pleas of York county. May 18. The facts of this case are all stated in the opinion of Mr. J. Burnside.

<p>A legacy to a wife will not pass by an assignment of the husband for the benefit of his creditors, of ail his personal property.</p>

<p>From the Orphan’s Court of York.</p> <p>May 19. — F. Eichelberger, by his will, gave certain parts of his estate to his children who were then living, and to the widow and children of B., a deceased son, and a legacy to his grandson Abraham, son of GK, a deceased son, more particularly mentioned hereafter. On'the share of B.’s children he charged a sum during the life of one Horn, and at his death “ to be equally divided, share and share alike, as my other estate is divided.” By a codicil, he created trustees for the widow and children of Daniel, a deceased son, who had been named as a devisee in the will, and provided that “ if any of said children die leaving issue, any share then in the hands of the trustee is to be paid to such issue, and if no such issue be left, then the same is to be paid over to the surviving children of said son Daniel.” The residue of the estate was divided by the will into eight shares, one of which was to go to each of his sons and his daughter, the child of his son Gr., deceased, and the children of his son D., deceased. By a codicil this was changed, and the residue given equally to one son, a daughter, and a daughter-in-law, the widow of a deceased son.</p> <p>The question arose on the bequest “ to my grandson Abraham, ,£1500, as a vested legacy, after the death of his mother; and it is further my will, that if my grandson Abraham should die without issue, then the part as willed to him is to fall to my heirs back, to be divided amongst my children as in my will mentioned, share and share alike.”</p> <p>At the death of testator there were five children, and the grandchildren of three deceased sons. Three of the children died before Abraham, the legatee. Two of these and the two survivors were indebted to the testator’s executor. The auditor awarded the fund to the children and grandchildren of testator living at his decease: the shares of those indebted being given to the executors of testator; the share of the child dying after testator and before Abraham, was given to his administrator; and the shares of the grandchildren, taking by representation of their parents, were divided among them, per stirpes; which report was confirmed, and this appeal taken by testator’s executors.</p>

From the Court of Common Pleas of Huntingdon. The real estate of Hewit having been sold by the sheriff, and the matter referred to an auditor, it appeared that the claim of the appellant was on a judgment confessed'by Hewit, from which a deduction was made by the auditor, which, with certain admissions of evidence by him, were assigned for error.

<p>In error from the Common Ple.as of Huntingdon.</p> <p>May 20. The plaintiff brought this action on the, case against the executors of Mong, to whom he had been bound an apprentice, for not teaching him the trade, and giving him schooling according to the agreement. On the trial, the plaintiff gave in evidence an indenture sealed by his mother (he being illegitimate) and Mong, by which the plaintiff was bound for fourteen years; the master covenanting to teach him the trade of a tanner, and have him taught to read and write. The plaintiff was not a party to this instrument, which was acknowledged before a magistrate. He then proved that at the time this deed was made he was under seven years of age, -and gave evidence that he had lived with Mong, and had not acquired the trade of a tanner, hut had been employed a good deal of his time on the farm; and also of the-insufficiency of his instruction in reading and writing. The defendants gave evidence, that plaintiff was reluctant to work at his trade and to attend school, hut preferred farming, which he attended to when permitted. They then proved that plaintiff and Mong, about a month after the term of service expired, wenhto the justice who held the indenture, who read it wholly or in part to them, and asked if they were satisfied that it had been fulfilled on both sides; both answering in the affirmative he delivered the deed up to the plaintiff, as was his custom with other apprentices.</p> <p>The court (Wilson, P. J.) told the jury that the deed, as an indenture of apprenticeship, was of no validity without an execution of it by the plaintiff, and then the action would have been properly covenant. But that plaintiff alleged this jiaper was evidence of the conditions on which he had served Mong under a verbal agreement. If this was the agreement, they were to determine whether plaintiff had performed his part, and then whether the master had done his duty. If they found it was through his own fault or neglect that he had not been instructed, the master was relieved, as he had no power to compel him to learn, since he was not bound to him. And that if the settlement after the term of service expired was made without fraud or imposition on the part of the master, the plaintiff was bound by it, as he was then of competent age.</p> <p>The charge of the court denying the validity of the instrument as an indenture of apprenticeship, and saying that the master would be excused under such circumstances, if the plaintiff was permitted to follow his own choice and learn farming instead of his trade, and the charge with respect to the subsequent settlement constituted the six errors assigned.</p>

<p>Where testator directed a sale of his land, and appointed an executor, but gave no express authority to any person, by name or description, to make the sale, the court may, under the act of 1834, compel the executor to effect the sale according to its directions, and give security for the distribution of the proceeds.</p>

In error from the Common Pleas of Huntingdon. May 21. This was an action of assumpsit against Lyon, Shorb & Co., in which the question in dispute was, whether defendants had accounted for all the iron delivered to them by plaintiff. On the trial, the plaintiff, having proved the delivery of the iron to the defendants, they then read their accounts, without objection, excepting to an order of Nov. 3.

In error from the Common Pleas of Mifflin. May 21. On the trial of this cause, the defendant offered in. evidence a deposition of David Moore, which was rejected. The plaintiff then read the depositions of Garvin and others, which were objected to by defendant. The grounds of the objections are fully stated in the opinion of the court.

Iu-error from the Common Pleas of Huntingdon. May 24. Debt on a single bill, dated 8th April, 1889, for $300, with an under-written agreement signed by the maker, that the above sum “is to be applied and accounted a part of the hand-money as mentioned in the article of agreement between Hudson and Reel, if said Reel pays the remainder of the hand-money as specified in the article, on the 22d inst.” By these articles, Hudson agreed to sell Reel certain lands, for which. $1500…

<p>Under sec. 9, art. 5 of the Poor Laws, (act 1836,) an unmarried woman not having a child will not gain a settlement by service without a hiring under a contract, express or implied.</p>

In error from Mifflin county. (Special court.) The plaintiff declared in assumpsit, and the defendant pleaded non assumpsit infra sex annos; to which plaintiff replied, «that he did assume within six years.” On the trial, the plaintiff proved sales of land by himself as sheriff, to defendant’s testator, for which a deed had been acknowledged in 1827. The action was brought in 1845.

In error from the Common Pleas of Mifflin. May 25. This was an action of debt on a bond against the executor of the obligor, with notice to his widow, heirs, and devisees, with intent to charge the land under the act of Assembly.

In error from the Common Pleas of Centre. May 26. The plaintiffs in- this ejectment, brought in 1845, claimed fifteen warrants and surveys,, made in 1794, the title to which was regularly deduced; and they proved the regular payment of taxes for the whole. The defendants rested on the statute of limitations. They showed a warrant and survey in 1797 for six hundred and forty acres, the lines of which existed in 1800.

<p>In error from the Common Pleas of Clinton.</p> <p>May 26. This was an action of debt against the sheriff and his sureties in an official bond. The plaintiff proved a judgment against Harvey and Fleming; a fi. fa. and return of «levied on a horse, wagon, sleigh, and clock.” ' He then proved that'prior to the delivery of the writ, he had called on the sheriff to make a levy on some lumber of the defendants, and informed him that it was claimed by a stranger, but that he might go on and plaintiff would give a bond of indemnity at any time before the day of sale. The sheriff was satisfied, and did not require a bond at that time. He then gave evidence that the lumber in their possession belonged to defendants in the execution. The defendants then offered in evidence the venditioni and al. vend., at the terms succeeding the fi. fa., to the first of which there was a return, — dhat the property mentioned in the writ being claimed by third persons, and plaintiff having promised to indemnify, and having neglected so to do, he had refused to sell. To the alias the return was, — that he had made diligent search for the property mentioned in the writ, and could find no part of it in his bailiwick: all of which were rejected by the court. The defendants then gave evidence that the lumber was not the property of the defendants in the execution; and they further offered evidence of the same character as to the property levied on, which was rejected. 1</p> <p>The court (Woodward, P. J.) after leaving it to the jury to decide whether this was a case for requiring indemnity, said, The conversation respecting indemnity seems to have regarded the lumber, as that alone was in dispute. If the sheriff waived indemnity on an agreement by plaintiff to furnish it when required, it was his duty to go on and make a levy, and he might have required indemnity before the sale. If they parted oh that understanding, the plaintiff’s failure to tender it did not excuse the sheriff. This, however, would not give a right of action to the plaintiff if the property did not belong to the defendants in the execution, and the question whether the lumber was liable to the execution was left to the jury. But as to the property actually levied on, the question of ownership was immaterial, for that was in the custody of the law, and the sheriff was bound to make some disposition of it unless the plaintiff refused to indemnify Mm, and then he should have returned that fact, as an excuse for not selling.</p> <p>The rejection of the evidence, and the charge “ as to the indemnity, and that the ownership was immaterial,” were the errors assigned.</p>

<p>Actual possession of part of a tract, under colour of title to all the land withia marked and defined boundaries, gives constructive possession to the whole, although the unenclosed portion be within the bounds of an elder and better survey: and the constructive possession is of the same character with the actual, and equally bars the right by the statute, without evidence of any acts of ownership within the lines of the elder survey.</p>

<p>Former recovery for defendant, on a technical objection merely, not pleadable in bar.</p> <p>Parol evidence is admissible to explain, but not to contradict the record.</p> <p>It seems, the charge of the judge which' has been filed is part of the record for this purpose.</p> <p>To an action of covenant by administrator of vendor, who was bound to tender a deed before suit brought, a plea of former recovery is not conclusive, if it be shown that the .judgment was there rendered for defendants, because the administrator, plaintiff, had not authority to execute or tender a deed, for want of a decree on the decedent’s contract in the Orphan’s Court.</p>

<p>A forthcoming bond, under the act of 1842, which recites the levy and that the property was appraised according to law, is void when, in fact, the appraisement was under the venditioni exponas, and stated a gross sum as the valuation, no schedule being annexed, as required by the statute.</p> <p>A false recital in a bond, of a fact within the knowledge of the obligee, avoids it as to a surety. Per Coulter, J.</p> <p>Property delivered by the sheriff, under such a bond, is no longer in the custody of the law, and therefore cannot, unless by consent, be sold under a venditioni. Id.</p> <p>But if defendant made no objection to such a sale, the surety in the bond is entitled to show, there was other property of defendant which the sheriff did not sell under an execution, or venditioni issued after the stay expired.</p> <p>Where no schedule of the appraised property was annexed to the ft. fa., as directed by the act, parol evidence is inadmissible to charge the surety with the valuation then put on the property delivered under his forthcoming bond.</p>

<p>A.-, by deed, “ granted, bargained, and sold” certain land, with special warranty: he had previously, by a recorded deed, conveyed to a stranger the timber on the land, with the privilege of cutting it during a temí. The covenant in the deed was broken as soon as executed; notice of the encumbrance is immaterial, and an action lies by the administrators of the grantee.</p> <p>The measure of damages is the value of the timber to the grantee, for the purposes of the farm at the time of the grant.</p> <p>A. granted to B. the timber on his land, with the privilege of cutting it during twenty-five years, and agreed that he would not cut any part of it during that term, unless it was in the way of improvements and cultivation'-of the land, the intention of the agreement being not to prevent A. improving and farming at his discretion. This reservation passes to the assigns of A., and is not merely personal.</p> <p>And the value of this reservation should be deducted from the damages sought to he recovered for a breach of a covenant against encumbrances contained in a conveyance by A.</p> <p>Such a reservation like a covenant to do a thing on the land passes to assigns, though not named. Per Gibson, C. J.</p>

<p>In error from the Common Pleas of Clearfield.</p> <p>May 28. This was an action of replevin for four rafts of timber, of which, defendant claimed title as a purchaser, under executions against Ralston, one of which issued at the suit of the defendant. For the purposes of the decision here it is necessary to set out the evidence given in the cause at unusual length. The plaintiff gave evidence of the possession of the property by P. Nolen, and sale by him to his brother, the plaintiff. P. Nolen, having been released from any warranty of title, stated under objection, that he had been a partner with Ralston in making lumber out of timber belonging to Ralston, and in 1844 informed him that a writ, at the suit of Irvine, was issued, and then proposed that one should buy out the other. The next day he bought out Ralston’s interest, received possession, and ran the rafts down the river, where he bargained with Quigley to run them to market and sell them, but they were detained a year on account of the lowness of the water; he then sold them to his brother, a few weeks before the levy, who paid $411, and gave his note for the balance of the price agreed upon, $760, which was yet unpaid. He admitted that, after this sale, he had made a written agreement to sell the same property in his own name, but stated he then acted as agent, and that his reason for purchasing from Ralston was to save himself, because his creditors were coming on him. The plaintiff, who thus purchased, was a sawyer who had been employed in getting out the timber.</p> <p>The defendant then proved judgments confessed by Ralston, and executions immediately issued, under which he purchased, with notice of plaintiff’s claim. He then gave evidence that plaintiff had said that P. Nolen was about taking some of his own lumber with this, which belonged to Ralston, to market, and selling it; that the sale to-P. Nolen was nothing but a sham to prevent Ralston’s creditors from seizing and sacrificing it, and when sold in Nolen’s name the money would go to pay Ralston’s debts. Ralston (called as a witness) stated the timber was his, and that Irvine had agreed to wait a year for his money; but on finding an execution had been issued, he (Ralston) was about delivering up his property to another when he met P. Nolen, who, being informed of the circumstances, advised a gale to himself, and said the timber might be run down and sold in his name, and the proceeds divided among his creditors. Ralston agreed, and sold all his property to him for several notes, amounting to $800. These were delivered in a private room, where he also handed Nolen $20 or $30 in relief notes, of one and two dollars each. When they left the room, a witness was procured, and the banknotes paid back, as if on the contract, counting the ones as tens and the twos as twenties. The plaintiff was then present. The notes were to be returned when the lumber was sold, and expenses paid. He denied that a partnership ever existed. Nolen had promised to give his receipt, but finding he had gone without doing so, Ralston pursued him, and meeting plaintiff, inquired about it; he stated that his brother had sold to him, and the design was to keep it • from the creditors. When P. Nolen came up he confirmed the fact of the sale, but directed Ralston to go on and use the same authority as before. The notes of P. Nolen had been assigned to the present defendant two days before confession of the judgment, but Ralston said he did not expect he would issue execution.</p> <p>The agent of the plaintiff confirmed this statement of the intention of the sale to P. Nolen, by his own statements, and proved that plaintiff was a day labourer, and reputed to be worth nothing. There was some other evidence of Ralston’s admissions of having made a sale of the lumber to P. Nolen, and a good deal attacking the characters of both Nolen, Ralston, and some of the other witnesses. There was also evidence that P. Nolen had paid the expenses of carrying the lumber to Quigley’s, and furnished provisions for the hands.</p> <p>Besides the admission of Nolen as a witness, there were two other questions of evidence raised. The first was, that the names of the witnesses were not contained in the notice of taking depositions. What the rule of court was on this subject is not stated on the record. The second is immaterial, as the facts on which it was based were not in the record.</p> <p>The court, (Woodward, P. J.,) in charging the jury, said, in substance, — the question was one of ownership of the property, which clearly was originally Ralston’s; that there was also clearly an apparent transfer of that property to P. Nolen, whether fair, as he testified, or fraudulent or otherwise, as Ralston proved. That there were notorious acts of ownership and ¡possession accompanying this transfer, and one question was, whether the plaintiff was a purchaser Iona fide, and without notice of the fraud between P. Nolen and Ralston, in which case he would not be affected by it. That Ralston’s testimony was relied on to prove the fraud, that was to be taken with the facts of the confession of judgment and assignment of the notes of P. Nolen to the present plaintiff. Supposing he was believed, was there any thing more than a fair transfer for value by one indebted ? As to the property, other than the lumber, it appeared conceded to be fraudulent; but the lumber was sold for a real and apparently adequate consideration; it might be that there was a mistake as to P. Nolen’s capacity to pay; but nevertheless Ralston did sell and receive the securities, and permit the purchaser to expend his money, and contract for the transportation ; and all would probably have gone on well if a rise in the river had permitted the lumber to get to market. But being detained there a year until a sale to plaintiff, then Ralston confesses judgment, and causes this property to be seized by the creditor, who still holds the notes given for the purchase. If there had been a mere colourable delivery of possession, and not a transfer of title, accompanied with possession and expenditure, then defendant might have seized, “ but the difficulty is to find such was the transaction from the testimony of Ralston.” The jury were to find the facts, but they could scarcely, from his testimony, find any other reason for his receipt of the paper and its transfer, than that it was the agreed price, and Ralston’s security that Nolen would apply the proceeds to his creditors. If so, how could defendant upset it a year after-wards ? If he was a creditor, he was provided for; and as he held the notes, he seemed to have no right to complain of this mode of getting the timber to market. If he thought it fraudulent, why did he not act on his old judgment in another county, a year sooner. If the sale to P. Nolen was fair, his transfer to his brother, though injudicious, would not vitiate the former transaction. On Ralston’s testimony was there any evidence of fraud ? P. Nolen showed a fraud much greater on his part; but if there was a transfer and exclusive possession, defendant had no right to seize. If Ralston be "believed, it was for the jury to say whether the transfer was merely colourable. Under this view they were to determine whether plaintiff \was a purchaser without notice, as to which the court recapitulated the evidence. '</p> <p>The rejection and admission of the evidence, and various portions of the charge, as being on an incorrect assumption of the facts, and misleading the jury in the statement of the effect of Ralston's testimony, were the errors assigned.</p>

<p>Adverse possession ceases to be so by parol agreement with the owner of the title to hold for or under him; and admissions to strangers are competent evidence of such an agreement.</p> <p>Parol evidence of an agreement, by an occupant, before title has been perfected by the statute of limitations, to hold for A., is admissible in an action by A. who has color-of title by a patent, subsequent to the occupant’s entry on the land, which recites . prior title from the Commonwealth.</p> <p>Entry as an occupant is such a commencement of -title as will avoid the effect of a recital of a prior title from the Commonwealth by warrant, &c. • Per Woodward, P. J.</p>

<p>In error from the Common Pleas of Centre.</p> <p>May 29. This was an action on a promissory note signed for the defendants by Thomas. The plaintiff proved that Thomas was in the employ of defendants as manager and book-keeper at their iron works until two or three years after the date of the note, and that he was a son of one of the partners, and nephew of two others of the firm. A witness stated it was not usual for clerks to give notes, but he had known this clerk to do it. . Another witness stated that it was not customary. The note was then read to the jury under objection. There were endorsements of partial payments on the note in January and December of the year Thomas left; but whether before or after he left, or in whose handwriting, was not proved.</p> <p>The court (Woodward, P. J.) directed the jury, if they were satisfied Thomas was in the employ of defendants at the time the note was given, and had their authority to sign notes for them, their verdict should be for plaintiff. If they doubted on either of these points, it should be for defendants.</p>

<p>In error from Clinton pounty.</p> <p>Trespass for taking the personal property of plaintiffs. They proved a hill of sale of the property in question, made by Carskadden, the former owner, on the 6th January, 1844. They then proved by Church, who was an assignee for the creditors of Carskadden, and a witness to the bill of sale, that he was present at the execution of the deed and delivery of possession of the house in which the property was, to Kintzing, the landlord; that the consideration was, rent then due and a surrender of the lease. The objection to this witness was, that he had been Carskadden’s surety for the rent. They then proved the forcible entry, by a deputy sheriff, into the house, the door of which had been .nailed up, and that he levied on and sold the goods.</p> <p>The defendant showed an assignment of the property in question to Church, in trust for creditors, dated and recorded December 28, 1843; and executions against Carskadden, delivered to the sheriff on the 30th December, which had been returned fieri feci They then offered the schedules of the property levied on, admitting that these papers were not returned with the writ, but had been delivered to the prothonotary before the trial. These were rejected. These schedules contained a list of the property in question. The court also refused to permit the sheriff’s return to be amended by attaching the schedules. It seemed that the term of office of the sheriff who executed the writ had then expired. The defendants also proved that, previous to the purchase by the plaintiffs, they had called on the attorney and stated them intentions to purchase, when he informed them that he did not mean to levy on that property.</p> <p>Under objection, plaintiffs then proved the lease referred to by Church, and also that they had possession of the goods and key of the house for five days.</p> <p>There was also an objection to evidence of the cost price of articles of furniture of the same kind as those levied on, and that a list of the sheriff’s sale was rejected.</p> <p>The court (Woodward, P. J.) instructed the jury that if the plaintiffs had purchased for a valuable consideration, and had clear and absolute possession of the furniture, it was protected against subsequent executions; and such previous executions as the plaintiffs’ attorney therein had agreed with the present plaintiffs, before their purchase, should not be levied on these goods. That by the assignment for creditors, if delivered, there was such a possession as would protect the property from creditors; and if the assignee united with the former owner in delivering possession, the plaintiffs could hold the property against mere trespassers. That an execution creditor' might have tested the fairness of this sale and assignment, but the defendants were not in that capacity, and their attorney had agreed no levy should be made on this property; and there being no evidence of a levy the defendants were mere trespassers, and were liable to the plaintiffs if they were placed in possession by Carskadden and Church.</p> <p>The errors assigned as to the evidence and proposed amendments have been stated. The charge was excepted to, because the court did not decide that the bill of sale after the assignment was utterly void, and in directing a verdict for the plaintiffs.</p>

<p>In error from the Common Pleas of Clinton.</p> <p>May 29. Case stated for tbe opinion of the court. On the 22d January, 1842, the plaintiff in error caused a survey to be made by the agent of defendants, of a building known as the Clinton academy, and made a written application to the agent for an insurance. In this it was stated, there was a flue in the house secured by. a sheet-iron collar. On the same day he executed and delivered to the agent a premium note, promising to pay in such sums as the directors might, according to their charter, demand. On this note the amount required to be paid in cash, together with the price of the policy, was paid, and the plaintiff received from the agent a certificate reciting the application, the note and the payments thereon, and stating that $1050 “ will be insured on the property for five years from the date of the application, if the company approve the said application." The papers were transmitted to the company, and laid before the executive committee, who did not approve of the application, nor issue a policy; but the secretary wrote the agent that plaintiff must substitute an earthen collar for the sheet-iron one, and procure the consent or authority.of'the trustees of the building to his obtaining an insurance, and when the company were duly certified that these requisites were complied with, they would send him on the policy.</p> <p>This consent was obtained in writing, and the required alterations made. The plaintiff informed the agent of these facts, and requested him to call and see the written assent, and that -the requirements had been complied with. This request was constantly repeated during the summer, but not complied with, owing to a press of private engagements. The building was destroyed by fire. in April, 1848. After this the agent wrote the defendants, stating the circumstances, and. that it was merely through his own neglect he had not called on plaintiff, as requested, to see the alterations.</p> <p>By the eleventh by-law, the duty of the agent was' to make surveys and receive applications for insurance, and to transmit to the secretary all applications received and surveys made by him.</p> <p>The facts as to plaintiff’s interest were submitted, subject to the question of their. relevancy. The building had been originally a church erected on land given for that purpose. A new church having rendered it almost unnecessary, the members of the congregation who had obtained a charter for a literary institution, in their individual capacities authorized plaintiff to repair the building, the expenses to be paid out of subscriptions, until which time plaintiff was to hold stock in the new corporation. He also held mechanics’ liens for repairs made by himself, amounting to $1000. After repairing it, plaintiff occupied the building as an academy and dwelling-house. There was also religious worship occasionally had in the hall.</p> <p>By the defendant’s charter it was provided that all persons insuring became members of the corporation, whose affairs were to be managed by directors annually.chosen by the members. And that every person before he became a member by insuring, should, before he received his policy, deposit his note, part of which was payable in cash, and the residue at any time the directors should appoint; vide acts 20th March, 1840, p. 180; April 13, 1838, p. 363. By the act of 1842, p. 426, it was further provided that the company should have a lien for their premium notes on the insured property.</p> <p>The court (Woodward, P. J.) gave judgment for defendants, for reasons of which the following is but an outline., The charter intended policies to be the mode of defining the rights of the insured and their membership of the corporation. That there was peculiar propriety for such a rule here, the members who were liable for the contracts of- the company being scattered over the country, and liable to imposition if the naked agreement of the officers of the company' bound it. The charter intending a policy as the final consummation of the contract, it was in this case incomplete. Nor would the neglect. of the agent to call and examine the alterations be any discharge of the condition precedent of defendants sending to the company the written authority by the trustees of the building to effect the insurance. Under these circumstances, the company could not have enforced the payment of the note; the answer to that would have been, our contract is not yet closed. Supposing, therefore, the parol contract was binding on the corporation, it had not been fully entered into here.</p> <p>The plaintiff in error (propria persona) submitted a written argument of forty-six pages. In the course of it, he said the defendants in the court below put their whole defence on plaintiff’s want of interest in the building, and authority to procure an insurance on it. That a corporation must be able to contract without seal, in the same manner as they were able to authorize a seal to be affixed to a contract: it being that precedent authority, of which the seal was evidence, which rendered it obligatory. This was declared in Bank v. Patterson, 7 Crunch, 299, which is affirmed in Rathbone v. Tioga, 2 Watts & Serg. 77, 80. To the same effect is 'Whitehall v. Whitehall, 8 Serg. & Rawle, 119; Danforth v. Schoharie, 12 Johns. 227; Hayden v. Middlesex, 10 Mass. 397; Fleckner v. Bank of the United States, 8 Wheat. 388; 2 Kent’s Com. 289 — 291. There was nothing peculiar in the charter, and it, as well as the words of the certificate, implied that an insurance was effected from the date of the certificate and acceptance of the premium note.</p> <p>The real question is, was there a contract? Now if a delivery of a policy would have been all that was necessary under the circumstances, that is conceded, for a policy would be but evidence of an antecedent'contract. The formal papers required by the company were all executed: certain conditions were required; they were performed ; after this all that was left was the delivery of the policy; that was for them; and that they intended to do it is shown by their retention of the money. If the consent of the trustees had been forwarded to the plaintiffs, the answer would have been — see the agent, he transacts the business. That agent knew of the iwithority having been procured. There was no bargain to send that assent, but a requisition that before they sent the evidence of the contract they should know the fact was so.</p> <p>The position that the plaintiff was not bound by his note is overthrown by Gray v. Foster, 10 Watts, 280. There, as in Armstrong v. McGhee, Addis. 261, it is ruled that acts indicating an assent of two minds are sufficient evidence of a contract. Of these there are enough to bind the plaintiff on his note.</p>

<p>Case lies by the assignee of bank stock, for a refusal by the bank to permit the shares to be transferred to him on the books of the bank.</p> <p>W. being the owner of forty shares of bank stock, bequeathed them to his four sons. Luring the minority of one of the legatees, the bank, with notice of the will, permitted the transfer of thirty shares of the stock, by the consent of all the legatees, to a stranger. Under the act of 1824, the bank cannot refuse to permit a transfer of the ten remaining shares, on the ground that a debt is due by two of the sons, who were of full age when the transfer of the thirty shares was permitted.</p>

<p>Appeal from the Orphan’s Court of Cumberland.</p> <p>June 1. The petition (or bill) stated, that John Hoover devised a tract of land to his son Datid, yielding and paying out of the same $7250, in instalments of $700; the first payable in six months after testator’s decease, the second in eighteen months thereafter, and the remaining instalments yearly. Out' of the first instalment a legacy of $500 was given to the petitioner. Of the residue, portions were given to the testator’s other children, and the amount undisposed of, .with the residue of the estate, was given equally among all the children. The petition then averred the acceptance of the land devised, prayed an order of sale, &c.</p> <p>The answer of the devisee admitted the will, of which he and another were executors, and averred a settlement of an administration account, by which it appeared he had paid debts of the estate beyond the assets $1683 63, and that debts yet remained unpaid, which, with that sum, amounted to $4453. It further averred there were no assets nor any annual payment due out of the land which respondent could apply to the payment of legacies. That testator had made no provision by his will for payment of his debts, and that the estate would not be sufficient to pay all the legacies when the assets came to hand, but that they must abate ratably.</p> <p>The complainant demurred, and the court dismissed the bill.</p>

<p>A husband of an administratrix is not liable for a devastavit by her committed, before the marriage; unless a judgment be obtained against him before the dissolution of the marriage: and a judgment for the penalty of the administration bond, under tho acts of 1713 and 1838, is not such a final judgment as will fix him with the devastavit..</p>

<p>In error from the Common Pleas of Juniata.</p> <p>In 1838, Waldsmith and wife, by deed between them- ' selves of the one part, and “ Mary Shirlock, in trust for herself and ■her children of the other part,” in consideration of $2250, “paid by said Mary,” granted, &c., “unto the said Mary, in trust for herself and her children, and unto their heirs and assigns, all that,” &c., “ to have and to hold unto the said M. S. for herself and her children, their heirs and assigns, to the only proper use, &c., of the said M. S,, in trust for herself and her children, their heirs and assigns.”</p> <p>Mary Shirlock was the daughter of the grantor, and wife of the defendant below. She died before this suit was brought, leaving ten children, of whom plaintiff was one, who were born at the date of the conveyance.</p> <p>There was parol evidence that but a small portion of the purchase-money was paid, and that the grantor had intended the residue of the value of the estate as a gift. But the court below decided on the deed alone, and that under this, Mary Shirlock and her ten children took an estate in common in fee-simple, and that the plaintiff was entitled to one-eleventh; and the defendant to an estate by the curtesy In the wife’s eleventh. This was the only error assigned.</p> <p>In giving judgment, the court (Hepburn, P. J.) said that the plaintiff’s claim to one-tenth, founded on the construction giving a trust to the wife, and the fee to the children only, could not be supported. For if they claimed as cestuis que trust merely, their estate would determine with that of the trustee; for, in deeds, technical words of limitation are always essential; 1 Dali. 139; 3 Wash. C. C. R. 498; Prest, on Est. 65. But that all difficulty on this point was obviated by considering the words “ their heirs” to refer to both Mary Shirlock and her children, and treating them all as grantees in the deed. Doe v. Martin, 4 Term Rep. 39, showed words in a deed might be transposed in this manner for the purpose of preserving an estate. In 3 Bulst. 128, Lord Coke says the word “heirs” need not be in any particular place in the deed, as in the case of a grant of a rent to A., and that he and his heirs might distrain, which would pass the fee. In Co. Litt. 9 a, a grant to B. et liberis suis et a lour Jieires, the father and children took the fee jointly; which was directly in point with the present one. That the children were not parties to the deed, was an immaterial matter, since they were living at the time of the conveyance; Cro. Elia. 121, 884; 1 Leo..287. •'</p>

In error from the Common Pleas of Juniata. The plaintiff in this case having given in evidence a judgment against the defendant, who was a certified bankrupt, proved by Shirlock that he had a conversation with defendant relating to this judgment, for which the witness’s father was security to the plaintiff; that he said to defendant — people said his father would have to pay it; to which defendant replied, the account was just except the price of one sheep, for which he had…

<p>In error from the Common Pleas of Cumberland.</p> <p>June 2. Case for slander. The first count laid the words “ That man (meaning the plaintiff) was in the penitentiary of Ohio, (meaning that plaintiff was a convict in the penitentiary of Ohio,) and I (meaning defendant) can prove it.” The second count laid the same words with an innuendo that plaintiff had been imprisoned for the commission of a crime. ' The third laid the words “he is a convict, and I can prove it.” The counts also contained an innuendo— that plaintiff had been convicted of an infamous crime. The plea of justification was withdrawn, and the cause went to trial on the general issue.</p> <p>On the trial, plaintiff proved that, when about offering his vote at an election, defendant objected to him, and gave as a reason, “he is a convict, and has been in the Ohio penitentiary.” There was contradictory evidence as to whether he said he could prove it. Under objection, defendant proved reports of the truth of his assertion communicated to him. He also gave evidence that he had said, “If reports be true, he is,” &e.</p> <p>In answer to the defendant’s points, the court, (Hepburn, P. J.,) on the authority of McPherson v. Daniels, 10 Barn. & Cress. 263, told the jury if the words actually spoken were, “ If reports be true,” &c., there was a fatal variance; and 2dly, That the words laid were not actionable without proof of special damage.</p>

<p>From the Common Pleas of-</p> <p>June 3. William II. Woodburn having made a general assignment to Swoyor, on the 31st March, 1837, for certain specified creditors, his accounts were excepted to and referred to auditors.</p> <p>It appeared that James Woodburn having devised his lands to his four sons, of whom the assignor was one, subject to charges in favour of his executors; and having given legacies to his daughters, among whom was Jane Ege, an agreement was entered into by the parties in 1838, settling the amounts payable by each of the devisees to the legatees. By this instrument, the amount payable by the assignor to Jane Ege, on account of her legacy, was fixed at $733 86, due in 1838. In 1835, Joseph, the husband of Jane Ege, by deed, assigned her legacy, amounting to $2000, to Lewis, as a collateral security for a debt due. In September, 1837, by a deed reciting a valuable consideration paid, he again assigned his interest in the legacy to Watts and Biddle, and authorized the executor to pay them.</p> <p>The first exception before the auditors was to the claim for credit by the assignee for the amount paid Mr. Watts on account of this legacy, $788 88. The evidence in support of the second objection to this credit was, that only $568 84 was due to Lewis at the time of the assignment to Watts and Biddle, the residue of his debt having been paid. On the other hand, Mr. Watts proved he had incurred liabilities for Ege as security, for which this legacy was assigned, and that in order to discharge Lewis’s claim, he had been obliged to pay $1100. The court below disallowed the credit for reasons mentioned in the opinion of the court here: the decision of none of the points appearing on the paper-book.</p> <p>The first exception to this payment was on the ground that Joseph Ege and Michael Ege were partners in trade and indebted to the assignor. The answer was, that there had been an assignment of the legacy before an election to set off, and that the present except-ant and the assignor had agreed there was this amount due at the time of the assignment to Lewis.</p> <p>The second exception to the account was to a claim for credit for the loss on the two notes of Joseph and Michael Ege, given to the assignee for part of the assigned property sold on credit. The facts were these: The goods were sold in 1837. From 1835 to 1837, judgments had been obtained against Joseph and Michael Ege, amounting to $2400. They had no real estate, and had recently purchased their father’s stock in certain iron works which they were conducting. The goods were not saleable, and the transaction was deemed proper and beneficial by the assignor, and was conducted by the present exceptant. In the year succeeding, owing to an unexpected failure and the fall of iron, the purchasers became insolvent, and were sold out by the sheriff. It appears the court below disallowed this claim of credit.</p>

<p>In error from the Common Pleas of Cumberland.</p> <p>June 8. Stewart, by his will, devised a farm to his daughter Isabella, wife of the defendant below, “ during her natural life, and at her death to her children, and their heirs in fee-simple; to be for her and her family’s use during her natural life, and her children and their heirs to enjoy it at her death.” The devisee had several children, and was still living.</p> <p>A fi. fa. and sequestration having Issued against the estate of defendant in this land, on which he resided, the court set aside the sequestration, and this was the error assigned.</p>

From the Common Pleas of Cumberland. June 7. Jackson and others were lessees of the Carlisle Bank and Haldeman, under a demise ending December 31,1845, at an annual money rent. In November, 1845, a new lease was executed for the year 1846, in which the rent was reserved in iron. In August, 1846, the personal property on the demised promisee was sold under the execution of appellants and others, and on the distribution of the proceeds two questions were raised.

<p>The assignor of a chose in action, and an assignee who has assigned over, are incompetent witnesses to sustain it.</p> <p>Therefore, the obligee of a bond of a turnpike company, and his assignee who has assigned his interest, are incompetent to sustain their assignee’s claim to an exclusive right to the tolls, by proving a specific pledge thereof; the claim being made before auditors distributing funds in the hands of a sequestrator.</p>

<p>A. plaintiff accepting the voluntary appearance of the joint ■ obligors to a writ issued against three, and proceeding to judgment and execution, does not debar himself of the right to proceed, under the act of 1830, against the obligee who was not served.</p> <p>Whether ,a plaintiff preventing service on some of the joint defendants would be debarrecfof his remedy against them — Query.</p>

<p>Where articles stipulated for certain reservations to the grantor for life, and the payment of a sum of money at his death, and a deed was executed subject to “ the reserves mentioned in the article,” during the grantor’s life only, the deed and articles if construed together, create no lien or charge for the purchase-money.</p> <p>A., having entered into articles by which plaintiff was to purchase land under certain reservations to A. for life, and the payment of money at his death, executed a deed charging the reservations only on the land. When about to deliver it, defendant, or some one in his presence, urged the delivery, saying, “ you have your right in the land, you have the article to show against the deed,” held not to be sufficient evidence to induce the court to reform the deed, and charge the estate, with the purchase-money, of which defendant had become the owner, although he had , notice of the claim.</p> <p>Purchase-money payable in futuro, is no lien in Pennsylvania, after delivery of a deed of conveyance.</p> <p>Misrepresentation, whether wilful or accidental, is a ground for reforming a deed or contract ; but it must be of some material fact which the party might have placed cbnfidence in, and not an opinion; unless there be peculiar circumstances of contrivance or abuse of confidence reposed. And it must be shown, that the complaining party ' acted on the misrepresentation or mistake induced by the party seeking to bind him by the written evidence.</p> <p>It seems such misrepresentation, to be binding, must, in ordinary cases, assume the character of a contract.</p>

<p>A report of auditors will not be set aside in whole or in part unless for plain mistake, which the exceptant must establish by affirmative evidence when it is not clearly apparent on the face of the report itself.</p> <p>In this state, as well as in our sister states, compensation is allowed to trustees as the reward of a faithful execution of the trust confided to them; but the right to compensation is destroyed by sloth, ignorance, reckless confusion and procrastinating delay on the part of the trustees, by which the interests of the cestui que trust are impaired.</p>

<p>A testator devised certain real estate to his son, charged with £500, on which, the interest was to be paid annually to his widow during her natural life. The real estate thus devised, passed by various conveyances to certain terre-tenants. In 1838, the widow brought suit against the executor of her deceased husband and the terre-tenants of the said real estate, to recover the arrearages of interest due and unpaid at the time of the institution of the suit, in which a verdict was rendered in her favour; when a motion for a new trial was made by the defendants, which was pending at the time of the shcrifHs sale in 1845. In 1842, the widow brought a second suit against the said executor and terre-tenants, to recover the an oarages of interest which had accrued subsequently to the institution of the first suit, in which the court, on a case stated, gave judgment de terris in her favour, for $360, and which judgment she assigned for a valuable consideration to one M. P. In 1845, under judicial process issued on this judgment, at the instance of M. F., the assignee, the sheriff sold the said real estate for a sum less than sufficient to pay all the arrearages of interest, including those for which the aforesaid suits were instituted, as well as those due at the time of the sheriff’s sale. Held, that M. F., the assignee of the judgment in the second suit, was not entitled lo the whole fund raised by the sheriff’s sale, but was merely entitled to come in pari passu with the widow, to whom the arrearages of interest included in the first suit, as well as the arrearages due at the time of the sheriff’s sale, were payable.</p> <p>The assignment of a judgment in Pennsylvania does not imply any covenant or warranty that the said judgment will be paid.</p>

<p>To constitute a surrender of a term demised by a tenant to his landlord, no set form of words is requisite, nor is it necessary that there should be a formal re-delivery or cancellation of the deed or instrument by which the estate surrendered was created. All that is necessary is, the agreement and assent of the proper parties manifesting such an intent, followed by a yielding up of the possession of the demised premises by the tenant to the landlord. ■</p> <p>Under our statute of frauds and perjuries, it is not necessary in all cases, that the express rescission of a lease of lands should be in writing.</p> <p>It is settled in Pennsylvania, that notwithstanding the generality of the language of that part of our statute which speaks of assigning and surrendering estates and interests in lands, an oral surrender of a lease for a term of less than three years, whether such lease be by writing or not, will destroy the term by merger; and that at the moment of such surrender by the lessee, with the assent of the lessor, the relation of landlord and tenant ceases, and the estate of the tenant is determined.</p> <p>The effect of a surrender is to pass the estate of the surrenderor, and thereupon his estate is drowned and extinguished in the estate of the surrenderee; and the result of this drowning and extinguishment is, that rent reserved and issuing out of the less estate, and not due at the time of the surrender, is also extinguished.</p> <p>A demise, for two years at a yearly rent, is an entire contract, and by an acceptance of a surrender before the expiration of the second year, the landlord, having destroyed his* right to recover the entire vent of that year according to the covenants in the lease, cannot recover any part of it, and is therefore not permitted to claim pro- rata.</p> <p>The provisions of the 83d and 84th sections of the act of the 16th of June, 1836, relating to executions, were intended to make amends to the landlord for taking away his power of distress by a judicial sale of the tenant’s goods; but it is equally clear that the act contemplated an existing tenancy at the time of the sale, for if there be no tenancy, there can be no right to distrain except in the single instance allowed by the 14th section of the act of the 21st of March, 1772.</p> <p>By a surrender of the tenant to his landlord, after a levy has been made by an execution creditor of the tenant upon his goods found on the demised premises and before the sale of the same by the sheriff, Ahe tenancy is gone and with it the right of the landlord to claim any rent by distress or otherwise; and the execution creditor is entitled to the proceeds of the sale of said goods, to the exclusion of the landlord.</p>

In error from the Court of Common Pleas of Lancaster county. Dec. 3. Held: and the real estate ,of the intestate appraised and divided into two purparts-.

<p>In error from tbe Court of Common Pleas of Lancaster county.</p> <p>Dec. T. This was an action of ejectment brought by John Bury and Barbara Friedling, the plaintiffs in error, against Rudolph Sieber, for jive and a half acres of land, situated in Ephrata township, Lancaster county.</p> <p>The facts of the case are briefly as follows : The land in controversy was a part of a tract of two hundred and sixty-seven acres and twenty perches, which belonged to Peter Beck in his lifetime. Peter Beck died in 1811, and on the 1st day of May, 1812, Adam Beck and others, heirs of the said Peter Beck, deceased, conveyed this tract of land to John Sweigart, in fee, for the consideration of £4958, js. 6d., under and subject to the payment of £1000, part of- the consideration, as follows, as recited in the deed;</p> <p>“ Which the said John Sweigart obligated himself to pay at or immediately after the death of Margaret Beck, widow and relict of the said Peter Beck, deceased, to and among the heirs and representatives of the said Peter Beck, deceased, in equal shares alike, with the annual legal interest of the said principal sum of £1000, to be paid by the said John Sweigart, his heirs, executors, administrators and assigns, unto the said Margaret Beck, yearly, and every year on the 1st day of April during her natural- life as per bond, executed by the said John Sweigart, and in the possession of the said Margaret Beck.”</p> <p>A bond for the sum of £1000, the amount of the lien thus created by the deed, was at the same time executed and delivered by John Sweigart, the grantee, to Margaret Beck, the widow, as recited in the deed.</p> <p>In 1816, a certain Jacob Bury obtained possession of the five and a half acres, the land in dispute, by title, as was alleged, from John Sweigart, and retained possession until his death, in 1824. Whether Bury was in possession of the land as owner or tenant under Sweigart, did not appear. There was no title on record, nor was there, for aught that appeared, any written contract between Sweigart and Bury. In 1826, the heirs of Peter Beck brought an action of debt against John Sweigart, on his bond, recited in the deed from Beck’s heirs to Sweigart, and obtained judgment, in 1827, for $3122, and under judicial process issued thereon, the land in dispute was levied upon, condemned and sold at sheriff's sale to Jacob Fry, who, on the 28th day of June, 1828, sold the same to Rudolph Sieber, the defendant, who has been in possession "ever since. No notice of the suit on the bond was given to the terre-tenant.</p> <p>On the trial of the cause in the court below, the defendant offered in evidence the record of the suit on the bond by the heirs of Peter Beck against John Sweigart, the judgment obtained therein, the executions issued thereon, and the sale of the land in controversy, by the sheriff, &c. The plaintiffs objected to the judgment and all proceedings under it, on the ground that the judgment was no lien on the land in 1816, and was between other parties. The court admitted the evidence offered, and this was plaintiffs’ first Ml of exception.</p> <p>The court (Lewis, P. J.) instructed the jury, “ that the proceedings at the suit of the heirs of Peter Beck against John Sweigart, on the bond recited in the deed of May 1, 1812, for the money charged upon the land, and the sale by the sheriff under judicial process issued on the judgment obtained therein, vested a title by relation to the date of the deed, and that under the evidence, the defendant was entitled to a verdict.” To the charge of the court, the plaintiffs excepted, which constituted the second bill of exception. The jury found for the defendant, whereupon the plaintiffs sued out this writ of error, and assigned the bills of exception for error here.</p>

<p>The presumption of payment, which the law allows at the expiration of twenty years after a debt becomes due, is an act of tenderness towards the debtor, which is sustained by the absence of evidence, and like other presumptions, it must yield and give way before any circumstances and facts on which the mind can rest satisfied, and by which it is rebutted or repelled.</p> <p>Such legal presumption has not the power or effect of a positive statutory enactment of limitation, which extinguishes the original demand and requires a new promise to pay, or its equivalent. The mind must be free to admit the presumption, but if the exhibition of facts or circumstances interdict and forbid the conclusion, its protection is removed.</p> <p>Where more than twenty years had elapsed after a bond became due and payable, a settlement took place between the obligee and obligor of their respective accounts, including the said bond, and the obligor then acknowledged the bond to be still due and unpaid, it was held, that this rebutted the presumption of payment arising from lapse of time.</p> <p>Where the particulars of such settlement and acknowledgment was committed to writing by the direction of both parties by a witness who was present at the time, and the paper is proved by the witness to have been thus made, it is evidence to show that, at the time of such settlement and acknowledgment, the parties agreed that said bond was in full force; and such witness will be permitted to testify as to the admissions of the obligor and the demand of the obligee, by inference drawn from what he had thus put down on such paper, or writing.</p> <p>Such settlement or writing, where the bond was retained by the obligee, and there was no agreement or understanding that it should be considered as extinguished thereby, and no new note, bond, or security of any kind was taken, would be but a mere memorandum made of the several amounts due by the obligor, and the bond would not be merged therein.</p> <p>The declarations of an obligee in a bond, after he had transferred or assigned his interest therein for a valuable consideration, are not evidence against his assignee in an action brought by him to recover the amount of said bond from the obligor.</p>

<p>The mark of an alleged testator affords no criterion by which proof of it can be made, and is not recognised by oar act of Assembly as a legitimate execution of a last will and testament.</p> <p>Where a testator does not sign his name to his will, the sixth section of the act of the 8th of April, 1833, requires that two witnesses should prove, that the extremity of his sickness was so great that he was thereby prevented from writing his name; and the substitute for his name written by himself, is his name written at the end of his will by some person at his request, and this request must also be proved by two witnesses.</p> <p>Where a testator does not sign his name to his will, unless it be proved by two witnesses, that the extremity of his sickness was so great that he could not have written his name if he had made an effort to do so, and that some other person, in his presence and by his express direction, signed his name to the paper, such instrument, in the language of the act of Assembly, is of no effect.</p> <p>A paper purporting to be a schedule of advancements made by a testator to some of his children, which was not mentioned or referred to in the will, and which was made at a different time, forms no part of the will, and can have no effect on the question of admitting the instrument to probate on the proof of its execution.</p> <p>Every man is presumed to possess a sound mind until the contrary he shown; and it is incumbent on the party alleging insanity, to establish the fact. If general insanity he proved, it is presumed to continue until a recovery be shown; and the party alleging a restoration to sanity, must prove his allegation. Insanity, at the time of making the alleged will, must be proved in order to render the instrument void.</p>

<p>Certiorari to the Court of Quarter Sessions of Lancaster county.</p> <p>Dee. 8. In 1844, a petition was presented to the court, signed by citizens residing within the bounds of the 22d election district of the county of Lancaster, composed of parts of Rapho, Mount .Toy, and East Donegal townships, in said county, stating the inconvenience, ’trouble, and expense, by reason of distance, to which the petitioners were subjected in attending their respective township elections, and praying for the erection of a new township, out of those parts of the said townships as were comprised within the limits of the election district aforesaid.- Upon this petition the court appointed Christopher Brenner, Henry M. Reigart, and Thomas Lloyd, as viewers. Two of the viewers, Reigart and Lloyd, met pursuant to their appointment, and the order of the court,' and made, signed, and returned a report erecting a new township, as prayed for by the petitioners, and attached to the said report a plot or draft, with the courses and distances of the said new township, which was designated by the letter A., and also their names written thereon. This report, on exceptions filed thereto, was set aside by the court, on the ground that only two of the viewers were convened. Another view was thereupon granted on the original petition, and other viewers, in place of the former, were appointed by the court. The order directed the viewers so appointed “ to view, and if they see cause, or any two of them see muse, to erect a new township out of the said townships of Rapho, Mountjoy, and East Donegal, agreeably to the prayer of the petitioners, and make report thereof, with a plot or draft of such division, and the courses and distances of the same,” &c.</p> <p>Pursuant to this order, the viewers met and reported as follows : “ That we severally met, and having first been duly affirmed according to law, to perform the duties of our appointment impartially, and according to the best of our judgment, we viewed and laid out a new township out of the said townships of Rapho, Mount-joy and East Donegal, which we name Harrison, and which embraces the twenty-second election district of the county of Lancaster. A plot or map of said township, together with a list of the courses and distances of the same, known and designated by the letter B., is hereto annexed.” This report was signed by two of the viewers. The only plot or draft which accompanied this report, was the plot or draft made by Reigart and Lloyd, íavo of the first viewers, and appended to their report, which, as already stated, was set aside by the court. It appeared, therefore, by the paper-book, that the accompanying plot or draft had been detached from the record of the first proceedings and attached to this report by the viewers, who signed the same, and who adopted or designated it by Avriting thereon the letter B., with their names, respectively. To this report a number of exceptions were filed, which, as they were substantially the same as those assigned in this court, are omitted. The report was confirmed by the court, whereupon this writ was sued out, and the folloAving exceptions assigned here:</p> <p>1. The court erred in not sustaining the exceptions filed to the report of the commissioners or viewers, and in not setting aside the said report.</p> <p>The court erred in not setting aside the said report.</p> <p>2. Because the viewers were not appointed to inquire into the propriety of granting the prayer of the petitioners, as required by the act of Assembly; and the order is erroneous in that respect.</p> <p>8. The viewers did not make a plot or draft of the townships proposed to be divided, and the division line proposed to be made therein, nor did they make a plot or draft of the township proposed to be laid off.</p> <p>The only plot or draft which accompanied the proceedings is a plot or draft made by Henry M. Reigart and Thomas Lloyd, two of the viewers who made report to the Court of Quarter Sessions, to August Sessions, 1844, which, on the 3d of February, 1845, was set aside by that court; and the said draft is part of the record of that proceeding, as also the courses and distances referred to.</p> <p>4. The viewers did not report a plot or draft, as is required by the act of Assembly.</p> <p>5. The viewers did not report their opinion, as required by the act of Assembly.</p> <p>6. The viewers did not pursue the order of the court on which they acted.</p>

<p>>f any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void.</p> <p>Adhere, therefore, the covenant to pay a gross sum was, as stated in the article of agreement, in consideration of a transfer of a lease for a store-house, the stock of goods on hand in the store-house at cost, and the scales and weights of the store, subject to a deduction of five per cent, on the original bills, and a promise and guaranty on the part of the vendor, that a post-office should be removed from a neighbouring village to the place of business of the vendee, and that he should be appointed to it as postmaster, it was held, that the bargain was one, the consideration was one, the covenant was one, and that as the procurement of an appointment to office by private influence was part of the indivisible consideration, and illegal and void on the ground of public policy, the whole was void.</p>

In error from tbe Common Pleas of Lancaster county. This was a case stated for tbe opinion of tbe court below, in which,' Jacob Ebersole and Barbara bis wife, Samuel Becker and Nancy bis wife, and Joseph Snively, administrators of John Schwartz, deceased, tbe defendants in error, were plaintiffs, and John Ebright, surviving executor of Abraham Witmer, deceased, was defendant.

<p>A testator devised to his daughter E., inter alia, as follows: “ I give and devise to her certain hundred acres, with the allowance, situate, &c., to have and to hold the same to her, her heirs and assigns for ever, but if she should die without lawful issue, then said lands shall be divided among my other heirs, share alike. The said land she shall have for the sum of £450, money aforesaid; and after her proportionable share is deducted from said sum, of the residue she shall pay to my other heirs yearly the sum of £15, to begin with the first payment after a year after my death is expired,” &c. He then'empowered his executors to grant her “ lawful deeds for the said premises,” at any time when she shall have paid the aforesaid sum, or shall have given security for the same;” but ordered that “ she shall have no liberty to sell said premises before fifteen years after his death.” He then directed “ that the said £450 shall be divided, share alike, among his three daughters, E., A., and M., every year £15, as aforesaid and that “ the residue of his estate, not here disposed of, shall be divided among all his heirs, share alike, on his daughter M., and also A.,” in a certain event. Held, that E. took an estate in fee, with remainder over, by way of executory devise; but as she died, leaving children, and therefore the event upon which her estate was to be defeated did not happen, it became a fee-simple absolute, which descended upon her children.</p>

<p>In error from the Common Pleas of Clinton.</p> <p>Trespass against the sheriff and his deputy, and Moorhead, for seizing personal property, consisting of household furniture. It appeared, that one Carskadden had assigned the property in question to Church, for the benefit of creditors on the 20.th of December, by deed recorded. On the 30th, writs of fi. fa. against Carskadden were left with the sheriff, to which he returned ££ money made on this writ.” It also appeared, that Moorhead, one of the defendants, was bail for Carskadden in the judgments on which these writs issued. On the 6th of January, Carskadden sold and delivered possession of 'the property in question to the plaintiffs, with the assent of Church, his assignee, who thereby obtained a discharge from liability as surety for rent payable by Carskadden to the plaintiffs.</p> <p>The first bill of exceptions was, the admission of parol evidence of a levy under these writs. There was no return of a levy made, nor any schedule attached to the writs, but the court permitted the defendants to show, that at the time of the trespass proved by the plaintiffs, the defendants had the writs, and seised and sold thereunder.</p> <p>The error assigned in the charge, was under the following circumstances. After the writs were left with the sheriff, one of the plaintiffs called on Mackey, the attorney, stating their intention to purchase, and inquired of him whether he intended to levy on this property. He informed them that he knew of the assignment, and there was or would be a contest about the title; and as he had security, he would not. He did not, however, interfere, and Moor-head, the bail, procured the levy to be made by the sheriff.</p> <p>The court (Woodward, P. J.) instructed the jury, that it seemed-from the evidence that the assignment to Church was a fraud, particularly as the assignee had enabled the assignor to effect a subsequent sale while executions were pending, and thus relieve himself from personal liability. That the defendants could not justify. under the writ if the plaintiff’s attorney had induced the present plaintiffs to purchase on the faith of his declarations that he did not intend levying on the property. But that this waiver amounted to nothing if obtained by suppression of the truth. The jury were therefore to inquire whether the assignment was fraudulent, • and secondly, whether plaintiffs knew it was so, for if they did, they were bound to disclose the fact to Maeltey, the attorney. If knowing 'the fact they did not disclose it, they could not avail themselves of the waiver or agreement.</p> <p>This, with the admission of the evidence, were the errors assigned.</p>

In error from the Common Pleas of Cumberland. The defendant in error having obtained judgment against the turnpike company, and nulla bona having been returned to an execution, applied to the court to appoint a sequestrator, under the act of 1886.

<p>In error from the Common Pleas of Centre.</p> <p>This was a scire facias upon a mortgage, to the use of Lyon, Shorb & Co., against McCulloch, Dickson, and McNamara, to which the Mechanics’ Bank of Philadelphia and Milliken appeared and defended as terre-tenants. The mortgage was dated November 12, 1835, and was recorded on the 23d, but was acknowledged on the 9th of the preceding month. This was rejected by the court, on the ground that the instrument offered in evidence had never been recorded, and was the first exception. The plaintiffs then proved the execution of the mortgage, to which Milliken was a witness, conditioned to pay $10,000, and the assignments to Lyon, Shorb & Co.</p> <p>The defendants proved a deed from McNamara to Lyon, Shorb & Co. for one-fourth of the mortgaged premises; also a conveyance of one Mitchell’s interest in another fourth to McCulloch and Lyon, Shorb & Co., as tenants in common. They also proved judgments against McCulloch and Dickson, subsequent to the mortgage, and a, sheriff’s sale of the interests of the former to the Mechanics’ Bank, and of the latter to Milliken. The balance due by Milliken on this mortgage was $800. The plaintiff then called an agent of Milliken, who stated Milliken knew of the mortgage. He then called the attorney of the Mechanics’ Bank, who stated he had heard of the mortgage but had never seen it, and had informed the bank of it.</p> <p>There were also some bills of exceptions to evidence; the second was to the admission, on the part of defendants, of the depositions of Solms, the plaintiff, on the record; the third was in admitting the declaration of plaintiff’s counsel of the extent of the plaintiff’s claim, which was proved by the defendants; the fourth was to the rejection of one of the defendants offered to be examined by plaintiffs with his consent; the fifth was to the rejection of the deposition of a witness, which was offered to contradict his statement in depositions which had been read by the defendants. The rejected deposition had been taken in ,a former suit on this mortgage, which had been discontinued in consequence of a misnomer of the plaintiffs.</p> <p>The court (Woodward, P. J.) instructed the jury that a sci. fa. would lie under the act of 1705, on an unrecorded mortgage, but that defendants, under the facts, were entitled to a verdict on the plea of special matter, (what this was did not appear on the paper-book,) but not bn the plea of payment.</p>

<p>In error from the Common Pleas of Perry.</p> <p>The defendant in this ejectment was a purchaser at sheriff’s sale, under a judgment entered on the 23d of March. The plaintiff claimed under a deed from his father, executed on the same day, and, as it was alleged, before the judgment was entered; the question was, whether, the conveyance was fraudulent. The consideration named was $600; and it was proved that the son was allowed in the settlement $360 for wages earned after he came of age, by working for his father. The stock, &c., on the farm, valued at $200, was sold at the same time; for the balance, viz. $440, the plaintiff gave bonds, on which judgments were entered, payable in six equal yearly sums. Between the date of the conveyance and the 13th April, judgments for previous debts were recovered, amounting to $538. When the parties came to the scrivener to have the deed prepared, the father mentioned he had got into difficulties, and his creditors were coming, and he was afraid they would levy on his land. On examination, the father stated his creditors Were not pushing him, but his son would not work for him any longer, and he agreed to sell the' land, and his son agreed to pay his debts. The property was worth from $400 to $500, and the plaintiff had paid on his bonds $63. ■ These had been offered to the creditors of the father, but were rejected at the instigation of the defendant. After the sheriff’s sale, the grantor, who had remained in possession as cropper, gave up possession to the defendant. The personal property had also been sold under execution.</p> <p>The court, (Hepburn, P. J.,) after leaving the question of priority of the judgment or deed to the jury, directed them to inquire whether the deed was made with intent to delay, hinder, or defraud creditors, or for the honest and fair purpose of paying the indebtedness of the father. If it was thus fair, no estate remained on which the judgment could attach, if the deed was executed before the judgment was entered.</p>

<p>The courts will take notice of the agreement between Lord Baltimore and Perm, relating to the boundary line of the two provinces.</p> <p>This agreement embraced all titles completed before 1768, as well those perfected in 1760, as the inceptive right, under the custom of Maryland, to embrace other land in a resurvey under an order, after patent granted on the former survey.</p> <p>In 1753, a Maryland warrant for one hundred and fifty acres issued, on which a survey was made, and a patent for ten acres was obtained in 1754. An order of re-survey issued, including a contiguous vacancy, and to take in land included in the warrant of 1753, on the return of which a patent issued. In 1765, another order of re-survey issued, was executed, and a patent obtained. The title to part of this land, within the state of Pennsylvania, although it did not appear to have been included within any of the previous surveys or patents, was held to be protected. by the agreement of 1760 between the Maryland and Pennsylvania proprietaries.</p> <p>And where the defendant had shown title from those in possession fifty years before the trial, the want of evidence of a conveyance from the 'Maryland patentee does not affect his right to set up that title.</p>

In error from the Common Pleas of Bedford. Ejectment. The plaintiff had the title to a tract surveyed in 1794. The defendant’s title was under an improvement warrant, interest commencing in 1795, which interfered with plaintiff’s survey. He proved his residence on his own tract for more than twenty-one years, and that no one lived on the plaintiff’s tract, nor was there any clearing there.

In error from the Common Pleas of Bedford. June 10. A judgment was obtained in foreign attachment against Hartle in 1830. In 1843, a sci. fa. issued against the garnishees, on the trial of which it was shown, they were administrators, and had in their hands a fund reserved for the widow’s share of the real and personal estate of the decedent, which, on her death, was in part payable to the defendant in the action. The death of the widow was proved.

In error from the Common Pleas of Bedford. ' June 11. Trespass quare clausum fregit. The plaintiff proved the commission of the trespass, by an entry on the land supposed to be vacant, and the erection of a house.

In error from the Common Pleas of Franklin. June 11. The defendant in error sealed an agreement with the defendants below, whereby all matters at variance between the parties in an amicable action of account render, were referred to J. Brady, Esq., “whose decision shall be final without the right of appeal by either party, and whatever sum is reported due shall be entered as a judgment of the court by the prothonotaries, against the party from whom it is found due.” In the…

From the Orphan’s Court of Franklin. June 12. In 1840, the appellant entered into articles to sell certain real estate to Polsgrove for $6000, payable at the rate of $500 per annum, at which times interest on the unpaid amount was to be calculated. The vendee, also, had the right to pay any greater amounts at his pleasure. In September, 1845, Polsgrove died.

In error from the Common Pleas of Lebanon. June 21. Case stated. In 1793, Noll made his will, wherein he devised to his wife for life, remainder to his daughter Elizabeth for life. “ Item, that when my said daughter depart this her natural life, the children which are come or born of her body shall hold and possess my said land or plantation.

<p>A certified copy of the docket entries of a proceeding in bankruptcy, and the discharge of one of the plaintiffs suing to the use of another, is evidence under the bankrupt act.</p>

<p>Styling defendant’^ executors is merely surplusage where a personal liability is proved.</p> <p>Testator directed his executors to sell his land, one-third of the purchase-money to remain charged at interest, payable to his widow or to his executors for her use. The receipt of the interest by the executors renders them personally liable, and if but one received it, an action lies against him alone.</p> <p>And vs'here a legacy was given to the widow, and the sale was deferred for some years, and the executors being heirs, made payments to the widow on account of her thirds before the sale, she is entitled to retain them as payments on account of her right or interest at that time, and they cannot be considered as payments on account of the interest accruing to her after the sale was effected.</p>

- June 21. The reports of viewers, reviewers, and re-reviewers having been filed, the court approved of the former and latter reports, but there did not appear to have been any order made as to the breadth of the proposed.road.

<p>An execution having issued against land on which the judgment was no lien, the terre-tenant, supposing it tó be a lien, paid the money to the sheriff, who ‘returned the venditioni “ money made by” the terre-tenant. The terre-tenant, before the return-day, ruled the money into court, and proved he paid under a mistake. The plaintiff in the execution is entitled to the money.</p> <p>A plaintiff in an execution may conscionably receive and retain money paid thereon by one who was in fact a stranger, but supposed his land was subject to the lien of the judgment.</p> <p>To entitle a party to recover money paid under a mistake, the receiver must be placed in the same position he was in at the time of the payment; and if delay has ensued the party causing it by his mistake must bear the loss.</p> <p>A return of « money made” to a venditioni discharges the debt, and fixes the right of the plaintiff and the liability of the sheriff in the same manner as such return to a ft. fa.</p>

<p>In error from the Common Pleas of Dauphin.</p> <p>June 28. From the paper-book, it appeared this was an action of assumpsit for rent brought by “the heirs of James Trimble, by their agent, O. Rawn, against Frankem, bail for Ely.” A judgment having been obtained, an execution was issued, which was returned nulla Iona, as appeared from the printed paper-book, though in the written copy of the same proceeding there does not appear any statement of an execution having issued from the justice. A transcript was then filed in the Common Pleas. An execution then issued and land was condemned. A sei. fa. and al. sei. fa. then issued to revive, and judgment was entered.</p> <p>It appeared from the paper-book, (though in what manner the papers got upon the record did not appear,) that O. Rawn, as agent for the heirs of Trimble, had let certain premises by agreement in writing, to Hyers. At a subsequent period Ely became a party thereto as tenant; and Frankem bound himself by a separate instrument for payment of the rent.</p> <p>Upon this state of the record, a w-rit of error issued. The second error assigned was, that when the execution issued from the Common Pleas, no certificate from the justice of an execution issued and returned had been produced to the prothonotary.</p>