Volume 5 — Sergeant & Rawle's Pennsylvania Reports

In Error. ERROR to the District Court for the city and county of Philadelphia. Case stated in the nature of a special verdict, on which the Court below gave judgment for the defendant. Held: under several mesne conveyances, from Garrigues,) alleging that they had no notice of the payment by Roberts to Garrigues, now contended, that the defendant, who first made use of the party-wall, was responsible to them for a moiety of its value.

In Error. THIS was a writ of error to the District Court for the city and county of Philadelphia, in a suit brought by Solms against Hassinger, on which a bill of exceptions to the charge the Court below was returned with the record, by which . r ,. . f . r . the following appeared to be the circumstances or the case, .Hassinger, the defendant below, being in possession of Henry Orth's note for 993 dollars, and being indebted to Joseph Eberth, indorsed the note to the said…

THIS cause was tried before the Chief Justice in November last, and the case proved by the plaintiff was as follows: — The plaintiff employed Messrs. Montmollin and Moses, licensed auctioneers in this city, to sell a large quantity of goods for him, consisting principally of teas, which .

In Error. BY the writ of error issued to the Court of Common Pleas of Lehigh county, it appeared, that this action was brought by Schultz, the plaintiff below, by a capias ad respondendum, issued against Dillman and Jamison, as defendants, in an action of debt on bond. The sheriff returned the • , , . ^.,, writ executed as to Jamison, and non est inventus as to Dill-man.

Case Stated. JOHN SWIFT, the grand-father of the plaintiff, made his last will on the 27th December, 1813, and died on the 29th of the same month, leaving both real and personal estate5 anc^ five grand-sons, and two grand-daughters, the children of his son Edward, deceased, and one grand-daughter, Elizabeth Vanbeuren the child of a deceased daughter. The saj(j Edward Swift, the only son of the testator, and father of the plaintiff, died on the 26th December, 1813.

<p>MOTION for a new trial.</p>

In Error. ERROR to the Court of Common Pleas of Northamption county. This was an action of debt, brought before a justice of the peace of Northampton county, by John Prior against Thomas Craig, a justice of the peace of that county, to recover the penalty of § 50, imposed by the 6tb section of the act of as sembly, passed the 28th March, 1814, (Purd.

<p>Where foreign money is the object of the suit, the fixed according to the rate of exchange at the time of trial.</p> <p>An error having occurred on the trial as to the value of foreign money, and as to the interest, the Court directed, that the plaintiff might correct the errors, but if he refused to do so, they awarded a new trial, on condition that the defendant-should confine himself to those points in which the mistake occurred.</p>

<p>A lien for materials furnished to a building, obtained by a claim filed within six months from the furnishing of the same, does not expire at the end of five years from the time of filing the</p>

<p>Where special bail has been delayed, until the plaintiff has lost the opportunity of trying his cause as soon as he might have done, if the bail had been entered within six weeks after the return of the original writ, the bail bond must stand as a security for the debt to be recovered.</p>

<p>EXCEPTIONS to an award of referees.</p>

In Error. THESE were two writs of error, to the Court of Quar1 ^. ter Sessions of Chester county, to remove the proceedings and sentences against the plaintiff in error, Augustus Withers, upon two indictments, for conspiracy and cheating. At February sessions 1818, the plaintiff in error, and a certain Joseph Withers, were indicted for conspiring against, and cheating Benjamin Hickman. Joseph Withers died before the trial.

<p>HOMINE REPLEGIANDO.</p> <p>THIS was a writ de homine replegiando, sued out by the plaintiff, a coloured man, against the defendant, who was the keeper of the prison of the city and county of Philadelphia; r r j j a and the defendant’s counsel now moved to quash it, on the ground of its having issued contrary to the constitution and jaws Qf t¡le United States. The facts were submitted to the . . Court, m a case stated, by which it appeared, that the plamtiff having been claimed by Rasin Gale, of Kent county, in state °f Maryland, as a fugitive from his service, was ar~ rested by him in the county of Philadelphia, and carried be-f°re Richard Renshaw, esq. justice of the peace, who committed the plaintiff to prison, in order that inquiry might be made into the claim of the said Gale. The plaintiff then sue<^ out a habeas corpus, returnable before Thomas ARM-strong, esq. an associate Judge of the Court of Common Pleas. Judge Armstrong, having heard the parties, gave a certificate; that it appeared to him, by sufficient testimony, that the plaintiff owed labour or service to the said Gale, from whose service in the state of Maryland.hu had absconded, and the said Judge therefore, in pursuance of the act of the Congress of the United States in such case made and provided, delivered the said certificate to the said Gale, in order that the plaintiff might be removed to the state of Maryland.</p>

<p>THIS case was tried before Duncan J. at Nisi Prius, in February last, and a verdict found for the plaintiff. A motion was now made, by the defendants, for a new r J ' trial.</p>

<p>THIS was an action orought by Ann Miffin against the commissioners and inhabitants of the district of Southwark, to recover the damages assessed for laying out Washington street, in the said district, in pursuance, as the plaintiff alleged, of the 6th and 7th section of the act of 29th September, I787.(a) It was tried before Duncan J. at the Nisi Prius in January last, and the plaintiff proved, that she was the owner of a lot through which Washington street passed, and that the commissioners had made a plan of the new streets, which was laid before the supreme executive council, who confirmed it on the 22d January, 1790, and ordered it to be , , _ - r • , . , . recorded. No order ior opening Washington street under the 6th section, could be found among the records of the supreme executive council. She then gave in evidence proceedings in 1804, under the 7th section, to assess the damages which she would sustain by the laying out of the said street, and that they were assessed at 823 dollars. Governor M‘Kean, on the 11th June, 1804, made an order on the supervisors or superintendant, to pay the money, and to stay the opening of the road until it was paid.</p> <p>Judge Duncan being of opinion, that the plaintiff was not entitled to recover, a nonsuit was agreed to be entered, with leave to take it off, if the Court in bank should be of opinion, either that there was no occasion for an order for opening the street, or that evidence had been given, from which the jury should presume, that the street had been ordered to be opened by a proceeding under the 6th section.</p>

In Error. ERROR to the District Court for the city and county of Philadelphia. By the writ of error returned m this case it appeared, that it was an action brought by William M'-Ghesney, the plaintiff below, on a policy of insurance on the brig El Cu-1 1 ° lana, on a voyage from New Haven to St. Bartholomews.

<p>When a surviving partner dies indebted to partnership and separate creditors, and leaving in the hands of his administrator joint property, and also separate property, the separate creditors shall receive as much out of the separate property, as joint creditors receive from the portion of such separate partner in the joint property, and then the balance of the separate property shall be divided equally among them pro rata</p>

<p>THIS was an action of assumpsit, brought by John M'-Doxvell and two others, as executors of George Woods de- . _ , . ° ceased, formerly deputy surveyor of Bedford county, against Jared Ingersoll, to recover the fees due for surveying a body of land in Bedford county. The merits of the case, together with the opinions of the Judges of the Supreme Court, are fully stated in the report of the trial of a former suit, brought by George Woods against Jared Ingersoll and Alexander J. Dallas, for the same cause of action, in the first volume of Mr. Binnefs Reports, page 146.</p> <p>On the trial of the present action, before Gibson J. at Nisi Prius, in”March, 1818, he charged the jury, that an actual running of the outline of a body of lands was sufficient to vest the title as to third persons ; but the act of 8th April, 1783, regulated the duties of the surveyor as to his employer. There was a difference between title and compensation to the officer; and the warrantee was entitled to have all the lines run and marked. That fees are given by the law for complete services; and custom cannot alter the law which directs how fees shall be earned. The party to be benefited may, if h^ please, wave them in part, and then if nothing be said as to the officer having a less compensation than the legal fees, the officer will be entitled to full fees. But if the waver be accompanied by a stipulation for a particular sum less than the legal fees, or for a compensation proportioned to the real value of the services actually performed, such contract will be binding between the parties, and the officer will be entitled to such sum or compensation, and nothing more. But if the officer, without the permission or assent of his employer, leaves any part of the duty unperformed, which the law enjoins him to perform, he cannot claim, either the legal fees, or a compensation proportioned to what he actually performs ; he can claim nothing. He, therefore, left it to the jury, whether Woods executed these surveys imperfectly, with the assent of Messrs. Ingersoll and Dallas. If they assented to it, and there was no stipulation for a compensation less than the law allows for full services, the plaintiff will be entitled to full fees. But if there was no assent, and Woods acted of his own accord, he will be entitled to nothing.</p> <p>He further directed the jury, that the only circumstance that could at all justify an inference of such assent, was the evidence of a custom among the deputy surveyors to run the outline only, where lands were in a body. If Messrs. Ingersoll and Dallas knew of that custom, and put their warrants into the hands of the deputy surveyor without particular instructions, it might perhaps be inferred, that there was a common understanding between them and the officer to have the surveys made according to the custom. But there was no evidence that they knew of the custom.</p> <p>The jury found a verdict for the defendant, and a rule was granted to shew cause why there should not be a new trial.</p>

<p>A water-right appurtenant to a mill, passes by the word appurtenances, and a vendor is not bound to insert the word "Privileges" in a deed for the purpose of conveying such right, though it may be contained in the contract between the vendor and vendee.</p> <p>Though such vendor declare at the time a deed is to be executed that he neither bought nor sold the water-right, such declaration is of no importance if the deeds convey the right.</p> <p>If the vendor bind himself to execute a deed and deliver possession, and the vendee refuse to accept the deed, on account of an alleged defect in it, he cannot entitle himself to damages by shewing that the vendor was not able to deliver possession.</p>

THIS was an action on three policies of insurance underwritten by the defendants on the brig B. and her cargo, on a voyage “from Philadelphia to Kingston, Jamaica, and a port in the island of Cuba.” The brig arrived .at Jamaica, where she was seized by the custom house officers for breach of the laws of trade, and after some detention acquitted and restored.

THIS action was brought by I. I. A. Gogel against Leonard Jacoby, for goods sold and delivered. The 4/7 0 . . . „ . gave notice of set-off of a demand against the plaintiff, originating as follows.

In Error. ERROR to the Common Pleas of Bucks county. Held: that though Craig was at liberty to pursue the right or not, yet this was such an interest in the land as was bound by the judgment against him ; and that the land was consequently bound by the judgment in the hands of Anderson, to whom he had conveyed all his right after the judgment was entered-, and who had obtained a patent…

Case Stated. THE plaintiff obtained a judgment in this Court against Taggart, in his life-time, after which other persons also obtained judgment against him in his life-time. After his death, the defendants petitioned the Orphans’ Court, and obtained an order for the sale of his real estate.

<p>In Error.</p> <p>ERROR to the District Court in and for the city and r .. . ,, r . county or Fhzladelphta.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Lebanon county, in an action brought by Henry Wilhelm against Martin Miley, Jacob Kapp, and Valentine Shaufier, trustees under a domestic attachment which had been issued at the suit of Jacob Wentling against Francis School.</p> <p>It appeared that the domestic attachment had issued, returnable to May Term, 1814, in the Court of Common Pleas of Lebanon county, and was returned by the sheriff, served, with a schedule annexed of the property attached : and on the 17th May, the defendants were appointed trustees and auditors according to the act of assembly. The present was an action on the case, brought to February Term, 1815, to which the defendants pleaded non assumpsit and payment, with leave, &c., and there was a replication, and issue.</p> <p>On the trial, the plaintiff, having proved, by the record, the foregoing facts, and also that the defendants advertised a sale of the property attached, and a meeting of the creditors, and had made sale, and paid the sheriff his fees on the attachment, offered a witness to prove, that on the day advertised, the defendants received the proceeds of sale : that at the said meeting called by the defendants on the 16th July, 1814, the defendants disputed the plaintiff’s demand, and it was agreed to submit it to arbitrators, who were mutually chosen by the plaintiff and defendants ; that the arbitrators met, heard the parties, and awarded against Francis School, § 338 48cts : and they also offered to prove, that the defendants had paid other creditors, ten shillings in the pound of their respective debts. The defendants objected ■to this evidence, and the Court overruled it on the ground, that the defendants had never been sworn or affirmed as trustees, and had not settled their accounts before the Court. To this opinion, the plaintiff excepted.</p>

<p>If a note be for liquors or a tavern reckoning exceeding 20 shillings, no part of such debt is recoverable.</p> <p>But if other items of account constitute part of consideration of the note, it is good as to them, though bad as to the debt for liquors or tavern reckoning, when the later exceed 20 shillings,</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Dauphin county.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Dauphin CtfUnty.</p> <p>This was a scire facias issued in the Court below, in the name of Walter Franklin, Esquire, President of the Orphan’s Court of Dauphin county, the successor of John Joseph Henry, Esquire, late President of the said Courts for the use of Hutch Hamilton, an heir, and legal representative of „ r , , . .. , a 4 . John Hamilton, deceased, against John Kean, Esquire, with notice to John Close, tenant in possession of a certain three story brick house and lot of ground, with the appurtenances, . . ° tt- i • . situate in Harrisburg. John Kean, entered into a sanee, dated the 27th October, 1801, by which he became bound to John Joseph Henry, Esquire, President of the Orphan’s Court of Dauphin county, and his successors in office, in the sum of 11,160/., conditioned for the payment to the widow and children of John Hamilton, (who died before the year, 1794,) of their respective shares, of the appraised value of certain lands and real estate of the said Hamilton, which were taken by the said Kean, at the said appraised value. Kean sold these lands and estate, to Henry Orth, by whom they were sold to John Close, the other defendant in this action; after which Kean became insolvent, and was discharged in Philadelphia, by virtue of an act of assembly, passed the 13th March, 1812, by which the debtor was discharged altogether from his debts. The present scire facias was issued on the above mentioned recognisance against John Kean, as the recognisor, and John Close, as terretcnant of the lands and estate, &c. taken by Kean at the appraised value.</p> <p>The defendants pleaded nul tiel record, and payment, with leave to give the special matter in evid^pce. Replication non solverunt, and quod habetur tale recordum: and issues.</p> <p>On the plea of nul tiel record, the plaintiff produced the record of a recognisance entered into at the Orphan’s Court, by John Kean and others, jointly and severally, “ unto the Hon. John Joseph Henry, Esquire, President of the said Court, and his successors in office,” in the sum, and on the conditions above mentioned; which the Court below decided sufficient to support the issue on the part of the plaintiff, and the defendants excepted to their opinion.</p> <p>On the trial of the issue on the plea of payment in the Court below, the defendants’ counsel, requested the Court to charge the jury on several points, which, with their answers, were as follows.</p> <p>1st. Whether a recognisance in the Orphan’s Court by an heir taking land at the appraisment, under the 4th section of the intestate law of 1764, for the payment of the distributive shares to the rest of the heirs, create a lien upon the estate so taken at the appraisment.</p> <p>2d. If such recognisance be a lien against the persons taking the estate at the appraisment, whether it extend to a person who, bona fide, for full consideration, and without notice, purchased from a person, who purchased from the one that took the estate at the appraisment ?</p> <p>3d. John Close purchased from Henry Orth, in 1808, by deed, reciting merely that Orth held under John Kean; and Henry Orth purchased from John Kean, in 1804, by deed recorded in 1806, which refers to the decree of the Orphan’s Court in 1801, creating the title of John Kean. Whether the record of the deed from Kean to Orth, was notice to Close, that the distributive shares due from Kean to the others heirs of John Hamilton, deceased, were unpaid, and remained charged upon the estate so taken at the appraisment by Kean P</p> <p>4ih. Whether the records of the Orphan’s Court of Dauphin county in 1801, relative to the estate of John Hamilton, Were of themselves notice to John Close in 1808 ?</p> <p>5th. John Kean, having been on the 20th July, 1812, discharged in Philadelphia, under the insolvent law of 1812, entitled, “ an act for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors,” and having given in evidence, a certificate thereof, agreeably to the 3d section of the said law; whether the plaintiff can sustain this action against him for a debt accrued in 1801?</p> <p>6th. Whether a judgment in this suit for the plaintiff, would be a judgment against John Kean P</p> <p>Whereupon the Court charged the jury</p> <p>1. That the recognisance in the Orphan’s Court by an heir taking land at the appraisment, under the 4th section of the intestate law of 1764, for the payment of the distributive shares to the rest of the heirs, is a specific lien upon the estate so taken at the appraisment.</p> <p>2. That actual notice is not necessary ; but that the proceedings in the Orphan’s Court, and such recognisance, are of themselves, constructive notice of such lien; and binding upon all persons claiming under the person who took the estate at the appraisment.</p> <p>3. The opinion of the Court upon the second point, is decisive of this. But even admitting that the proceedings of the Orphan’s Court, and such recognisances, were not notice, the record of the deed from Kean to Orth, referring to the decree of the Orphan’s Court in 1801, creating the title of John Kean, was sufficient to put Close upon enquiry, and therefore good notice, and binding upon him.</p> <p>4. The opinion of the Court upon the second point, deddes this.</p> <p>5. Notwithstanding the discharge of John Kean on the 20th July, 1812, in Philadelphia, under “ an act for the relief of insolvent debtors residing in the city and county of Philadelphia, and their creditors the plaintiff can legally and properly support this action against him, upon his recognisance entered into in 1801, in the Orphan’s Court, to recover of the estate taken by the said John Kean in the possession of John Close, the plaintiff’s distributive share of such estate.</p> <p>6. With the judgment in this suit, the jury have nothing to do, nor is it the duty of the Court, to instruct the jury concerning it. It is the business of the jury to find a verdict ; and of the Court to render judgment thereon.</p> <p>The defendants, thereupon, excepted to the charge of the Court.</p>

<p>A purchaser at sheriff’s sale cannot give notice to the person in possession so as to ground a proceeding under the act of 6th April, 1802, before the sheriff’s deed to him is acknowleged.</p> <p>An affidavit by the tenant in possession that he does not hold possession of the whole of the premises under the defendant in the execution, is not sufficient to stay proceedings.</p> <p>The justices are bound to call on the p^in'what*" part he held under such defendant or persons.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Lancaster COUüty.</p> <p>* . This was an action or debt on a bond given by Jacob Carpenter, the defendant below, to Christian Myer deceasec*’ and his daughter Barbara Groff, late Barbara Myer. A former action was brought on the same bond in the name of Christian Myer and Barbara Myer. Christian Myer died, anc[ his death having been suggested on the record, the suit was continued in the name ol Barbara Myer, until she mar-r‘e6 Christopher Groff, in consequence of which it abated, The present action was brought in the name of Groff and * ^ wife. Groff died, and his death being suggested, his wife, w^° suryiyed him, prosecuted the suit, which was tried on the plea of payment, with leave to give the special matter in evidence. On the trial, the defendant proved, that the bond was SIven consideration of the plaintiff having charged him on oath with being the father of a bastard child, begoton her body. She swore also, that no other person but the defendant had carnal knowledge of her. After giving this evidence, the defendant offered to prove, that one Ludwick Holtzworth had carnal knowledge of the plaintiff; but this evidence was objected to by the plaintiff’s counsel, and rejected by the Court. The defendant, thereupon, took an exception.</p> <p>The defendant further offered in evidence the deposition of John Abrahams, which had been taken in the former suit on this bond, after having proved, that Abrahams had gone several years before the trial, to the state of Ohio. This deposition was also rejected by the Court, and another exception taken.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Dauphin county.</p> <p>Wolfersberger brought debt in the Court of Common Pleas of Dauphin county against Steigleman, founded on articles of agreement. By writing filed, the plaintiff, Wolfersberger, “ elected to have the cause tried by arbitration, and required a rule of reference to be entered in this cause for hearing and , . . ... , . u , determining all matters in variance between the parties, and requested that the arbitrators be chosen on Monday, the 19th funef &c. By the rule of reference made out by the pro- — * # - thonotary, “ all matters in variance between the parties in the above cause were, agreeably to and by virtue of an act of assembly, entitled, ‘ An act supplementary to an act, entitled an act to regulate arbitrations,’ referred” to three persons, who made an award stating, that “ they find for the . . ° , plamtiff the sum or 2,682 dollars and 91 cents debt, together with costs of suit; but before the plaintiff shall have a right to enforce the payment of the above money from the ant, they do award, that it shall be incumbent on the plaintiff to execute and tender to the defendant a deed from himself and wife to the defendant, with special warranty, conveying to the defendant, and to his heirs and assigns, all the right, title, interest, claim, and demand of, in, to, and out of a certain undivided fourth part of a tract of land, situate in the county of Cumberland, and state of Pennsylvania, adjoining the town of Shippensburg, which said tract of land contains about 161 acres, more or less, and was conveyed by William Barr to Frederick Boas.” This award was made and filed the 28th July, 1815. On the 2d May following, the plaintiff obtained a rule to shew cause why an execution should not issue; and on the next day, the 3d May, tendered a deed from Wolfersberger and wife, dated 24th November, 1815, for the land stated in the award, to Steigleman, which he refused to accept. The Court below permitted Execution to issue, “ because the condition of the award in favour of the plaintiff, is substantially complied with.” The proceedings being suspended by a former writ of error, Steigleman died, and his administrators were substituted upon a scire facias, on which judgment was obtained.</p> <p>The following errors were now assigned,—.</p> <p>1. The award extends beyond the submission.</p> <p>2. The award extends to the person of a stranger to the submission.</p> <p>3. The award is not mutual, certain, and final.</p> <p>4. It does not appear, that the plaintiff below had any title to the premises awarded to be conveyed by himself and wife.</p> <p>5. If the award was legal, the Court erred in permitting execution to issue, because the Condition of the award was not complied with.</p> <p>6. The reference is not made agreeably to the act of assembly.</p>

<p>Certiorari.</p> <p>CERTIORARI to George Matter and Samuel Carpenteru esclu^resi t0 remove the following proceedings before them, under the landlord and tenant act.</p> <p>Lancaster county, ss. ^</p> <p>The Commonwealth of Pennsylvania to the Sheriff of the county of Lancaster, — Greeting:</p> <p>Whereas, due proof has been made before us, the subscribers, two of the justices of the peace of the county of * * j Lancaster, by arid on behalf of Samuel Fahnestock, Obed Fahnestock, Christian Bowman, Abel Witwer, and Jacob Koenigmacher, Trustees of the German Religious Society of Seventh day Baptists at Ephrata, that the said religious soc*etyi on the 10th day of April, in the year of our Lord, 1810, were quietly and peaceably possessed of a certain messuage and lot of land containing three-fourths of an acre, situate in the township of Cocalico, in the said county, and being so thereof possessed, on the day and year aforesaid, at the county aforesaid, the said religious society demised the same to a certain John Faustenauer, for the term of one year, then next ensuing, he, the said John Faustenauer rendering a certain rent therefor to the said society ; by virtue of which saj¿ demise, the said Tohti Faustenauer, on the day and year ’ J , , • aforesaid, at the county aforesaid, entered into the possession the premises aforesaid, and still holds and detains the same, to the great damage of the said trustees, notwith- , ° . . -n * standing he, the said John Laustenauer, on the twenty-sec°nd day of April last past, and at divers other days and times as well before as after, at the county aforesaid, was required by the said trustees to remove therefrom and deliver UP ^ Possess‘on thereof to the said trustees. These are therefore in the name and by the authority of the Commonwealth aforesaid, to command you to summon the said John Faustenauer to appear before us, the said justices, at the inn of John Baughman, at 10 o’clock of the forenoon of the 30th day of July, instant, to shew cause why he ■will not; and also that you summon twelve substantial freeholders of your bailiwick, to appear before us at the time and place aforesaid, to inquire into the truth of the premises. And hereof fail not at your peril.</p> <p>Given under our hands and seals, this 27th day of July, in the year of our Lord 1814.</p> <p>GEO. MATTER. (seal.)</p> <p>SAM’L, CARPENTER, (seal.)</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of York county, in an ejectment brought by Patrick Healy against Philip Moul and David Eaton, in which there was a verdict and iudgment for the defendants, in the Court below. Jo 5</p> <p>The plaintiff gave in evidence, a warrant in the name of Patrick Healy, for 100 acres of land, dated the 9th May, 1787, and a survey on the 20h September, 1787, of 42 acres 136 perches, by John Forsyth, the deputy surveyer of York county, including the land in dispute, and a patent to Patrick Healy, dated the 29th September, 1788.</p> <p>r™ _ . ' The defendants gave m evidence, a warrant of the 19th November, 1787, to Philip Moul, for 100 acres, including, an improvement; interest to commence the 1st November, 1757 ; a survey made by ConradLaub, agent.for John Forsyth, of 120 acres, on the 18th April,1788 and returned; and a patent,dated the 25th July, 1809. This survey and patent, did not include the lands in dispute : and it appeared, that the survey of Moul included lands before surveyed to Jacob Giles. The defendants then gave evidence, of a possession by acts of ownership; cutting timber, coaling, and other acts, the survey made and returned for Moul, for 50 years and up- » * j i wards ; and, in order to shew that the survey returned for him, and patented by him, was made by mistake, gave in evidence, without opposition, the field notes, and draft of a survey, found in the office of the deputy surveyor of the district, dated the 7th May, 1756, for Martin Eichelberger, by Thomas Armer, a well known agent of the deputy surveyor of that district, in right of Matthias Fritz, of 112 acres including the land in dispute, and proved lines corresponding thereto on the ground. They then offered in evidence a paper containing the same figure and lines, deducing the chain of title from Fritz, down to Philip Moul. The first was an assignment,the ' * o? without date, by Michael Fritz to Martin Eichelberger, of “ all my right that I claim therein.” The second assignment, dated the 5th November, 1756,was by Martin Eichelberger to Michael Fritz, “ all my right and title to that I have in the within draft, which I have sold for 14/.” The third was an assignment dated the 5th March, 1795, by Michael Fritz to Abraham Geyger, “ all my right, title, and interest, of that within mentioned draft.” The fourth was an assignment without date, by Abraham Geyger to Conrad Moul, “ all my right, and all my claim.” The plaintiff objected to these assignments being received in evidence : but the Court admitted them, and sealed a bill of exceptions.</p> <p>The defendants offered evidence to prove, that the survey made by Conrad Laub, and the patent issued thereon, were made and granted by mistake, including a large quantity of land which Moul never claimed, and throwing out a large part of his original settlement and purchase, which he was in actual possession of at the time the survey was made by Laub, and for thirty years before, which possessesion had been uniformly continued from that time to the present, by the defendants; and that as soon as Moul discovered the mistake in the said survey, he complained thereof, and applied to the deputy surveyor to have the same corrected, who appointed Moses M1 Clean, a deputy surveyor, his deputy to go to the land, and ascertain the fact, who did so ; made a diagram of the correction, ascertaining the mistake in October, 1789, which was returned to his principal, approved by him, and returned to the surveyor general’s office as a correction of it, who directed the surveyor of the district to proceed to a re-survey, which was suspended in consequence of this suit having been previously brought; and that the defendants had uniformly occupied, possessed, and enjoyed the land excluded by the survey of Laub, to the present time. With this evidence, the defendants offered the diagram made by Moses M‘Clean, and a copy thereof, made by John Forsyth. The plaintiff objected to this evidence, but it was admitted by the Court, who sealed another bill of exceptions.</p>

<p>In ERROR.</p> <p>ERROR to the Court of Common Pleas of Dauphin county, in an action brought by Robert Church the plaintiff below, against Alexander Wills. 7 °</p> <p>The declaration was as follows :—</p> <p>“ Dauphin county, ss.</p> <p>Alexander Wills, late of the county aforesaid, esquire, was 7 J 7 attached to answer Robert Church, of a plea of trespass on the case, &c.; and wheréupon, the said Robert, by George Disher, his attorney, complains, that whereas the said Robert is of good name, &c., nevertheless the said Alexander, not being ignorant, &c., but intending, &c., the 5th day of July, 1814, at Cumberland county, to wit, at the county of Dauphin ajoresatd, m a certain discourse which he, the said Alexan^er' an(l there had and held with divers other worthy of this Commonwealth} of and concerning the said Robert, and of and concerning the murder of a certain Isaac wills, the brother of the said Alexander, (who before that 7 7 v time, at Harrisburg, in the said county of Dauphin, Was killed and murdered,) he, the said Alexander, theti and there wickedly, falsely, and maliciously said, rehearsed, proclaimed, openly and loudly published, these false, feigned, scandalous, and opprobrious English words following, of the said Robert, in the presence and hearing of divers of the citizens of this Commonwealth, to wit, (he, the said Alexander, then and there being asked, by one of the aforesaid citizens, what suspicion he had to Mr. Church, the said Robert Church then and there meaning, and also meaning what grounds for suspicion, he, the said Alexander had, that he, the said Robert, had killed and murdered a certain Isaac Wills, aforesaid, the brother of the said Alexander,) he, the said Alexander, then and there replied, shaking his head, very strong indeed, (thereby meaning, that he, the said Alexander, believed, and had strong grounds for believing, that the said ..Robert Church was the murderer of his brother, the said Isaac Wills meaning,) for 1, (the said Alexander meaning,) found the very dirk in his trunk that done the fact, (meaning thereby, that he, the said Alexander, found in the trunk of the said Robert, the dirk with which he, the said Robert, had killed and murdered the said Isaac Wills, and again meaning, that he, the said Alexander, found in the trunk of the said Robert, the dirk with which he, the said Isaac Wills, was killed and murdered,) and a bloody shirt in the bottom of .his trunk, (meaning the trunk of him, the said Robert; and further meaning, that the said Alexander had found in the bottom of the trunk of the said Robert a bloody shirt, stained with the blood of said Isaac, at the time the said Isaac was .killed and murdered, and thereby meaning, that he, the said Robert, was the murderer of the said Isaac,) by means of speaking, publishing, and declaring, of which said false, feigned, scandalous, opprobrious, and wicked words afore.said, he, the said Robert, is much hurt, injured, vilified, degraded, and damnified, &c.”</p> <p>This suit was brought on the 6th July, 1814, and on the trial, the plaintiff gave in evidence, that the defendant, between the 27th and 31st May, 1814, when requested to state the reasons he had for suspecting the plaintiff of having been concerned in the murder of Isaac Wills, on the 26th April, 1814, stated, that the dirk that done the fact, and a bloody shirt, were found at the bottom of his trunk.</p> <p>The defendant gave in evidence, the deposition of John Foster, hereto annexed ; and offered to prove, that in reply to the same question put to the defendant by several persons at different times, between the 14th May, and the 31st May, IS 14, he said, (not in the hearing of the witnesses who testified as above stated,) that a dirk had been found in the trunk of the plaintiff, and that a bloody shirt had been found a few miles north of Harrisburg. To this evidence, the plaintiff objected; and the Court having rejected it, sealed a bill of exceptions.</p> <p>The deposition of John Foster was, that on Friday, the 13th May, 1814, he found concealed amongst briers near to a fence, on Mrs. Wilson’s farm, the two sleeves, collar, and part of the tail of a linen shirt, each piece of which was more or less bloody, especially the lower part of the shirt;— that the said shirt was very much mutilated and cut, apparently with a knife, as if,done for the purpose of preventing the same from being recognised or known ; — that the blood on the tail of said shirt, appeared as if it had been sprinkled on it, or had gushed against itthat parts of the shirt were not there; — and that it had lain out on the ground ever since, during the whole of the rainy weather ; — and that several other persons saw said pieces of the shirt, before the blood was washed out by the rain.</p>

<p>The Commonwealth is not liable for the sheriff’s fees for serving process in suits on forfeited recognisanees brought in the name of the Commonwealth.</p> <p>The accounting officers are not authorised to allow claims for such fees to be charged against monies received by the sheriff for the use of the Commonwealth.</p>

<p>In an action on single bills given for the purchase money of land, the plaintiff may give in evidence, a release of an outstanding title of dower bearing date after the commencement of the suit.</p> <p>A purchaserwho has a«veyance with rantyonT^bat j>?s not paid maydefend purchase mo-ground of a defect of‘¡tie, when he has no covenants on which he may have recourse,</p> <p>Query, At what time, manner he may have his remedy where there are such covenants.</p>

<p>On the trial of an issue upon a will, impeached on the ground of imbecility in testator, and fraud and principal devisee, after evidence given, that the testator was under the controul of that that devisee, and that his displeasure against a son whom he almost entirely disinherited, was the supposed extravagance of the son's wife, and that the principal devisee ha made representations to the devisor to that effect, held, that evidenceof the general good character and conduct of the son's wife was admissible.</p>

<p>The validity of a judgment entered after two nihils in scire faciases against the mortgagor, cannot be impeached in an ejectment by the purchaser at a sheriff's sale under such judgment, though it a appear in evidence, that the mortgagor was living on the land at the issuing and return of the two writs of scire facias.</p> <p>If such judgment is erroneous, it must be reversed by writ of error.</p>

<p>The certificate of the register of wills, that a will of lands had been duly proved and approved "before him, and a copy thereof was annexed, is prima facie evidence of such will, though a copy of the probate is not set out.</p>

In Error. ERKOR to the Court of Common Pleas of Columbia countv. v The plaintiffs in error, who were also plaintiffs below, claimed under a warrant to Michael Gratz, for 300 acres 7 land, dated 11th August, 1774, on which the purchase money was paid the same day; a survey by Charles Stewart, deputy surveyor, on the 2d April, 1778, returned by William Gray, for Charles Stewart, deputy surveyor, on the 28th December, 1781; and a patent to Joseph Simons, on the 18th September,…

In Error. ERROR to county. the Court of Common Pleas of Mifflin lrlen,; against Watson, the defendant, in the Court of Com mon . . times by scire Jactas, and the question was, in what manner The plaintiff in error, John Frzds^ having obtained judgagainst Watson, the defendant, in the Court of Com-Pleas of Al.iJJlin county, revived his judgment several interest was to be calculated.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Union county.</p> <p>This was an action brought by Thomas Painter-, the de- ° J fendant in error, the plaintiff below, late sheriff of Northumberland county, for the recovery of the purchase money of a tract of land sold by him to Probst as the estate of Evan R. Evans, in the hands of his administrator. The sale was made on the 25th August, 1813, on an alias venditioni ex-ponas, returnable to the August Term. The deed was knowledged on the 26th November, the Term following, and tendered to Probst, who refused to accept it. The estate was formerly owned by one Henry Hendricks, and was sold as his property by the sheriff to E. R. Evans, and the deed acknowledged and delivered to E. R. Evans, on the 30th ° ,, , November, 1810. The defendants contended, that Evans s title was defective ; that he was trustee for Hendricks: and to prove it, gave in evidence the following receipt given by Evans, on the 1st February, 1811. “ I received of Jo hn Zimmerman, five hundred and seventy-five dollars, and cents, for 95 acres, 138 perches of FI. Hendricks's land.’’ Signed, E. R. Evans. And they offered to prove the declarations of E. R. Evans, soon after his purchase, that he had bought in the land for Hendricks, who was his client, and for whom he acted, and who had satisfied him for his services ; that this receipt was for money paid him on Hendricks'1 s account, to repay the money Evans had paid the sheriff, and that Hendricks was to have the land, on paying him'the whole money. This evidence was objected to by the plaintiff, and overruled by the Court. The defendant excepted to their opinion.</p>

<p>In ERROR.</p> <p>THIS was a writ of error to the Court of Common °f Mifflin county, where a verdict and judgment were had in favour of the defendant, William Brown jun.</p> <p>The suit was brought upon a promissoxy note for 1522 dollars 50 cents, drawn by the defendant, payable to Joseph Ftartin, and indorsed by the said Joseph Martin, Samuel Martin, and Joseph M'-Coy. The note was discounted by the Tuniata Bank, and protested for non-payment. After the commencement of this action, the Bank gave up the note and took a bond for the amount of what was due on it from Joseph Martin, for whom it was discounted, with Francis M'-Coy, Samuel Martin, and James Milliken, securities. It was admitted on the record, that the Bank had no intei-est in the suit, and that Joseph Martin was the real plaintiff; so that in fact the real parties to this suit were Joseph Martin and William Brown jun. The note on which the suit was brought, was one of several notes given by the defendant to Joseph Martin in consideration of a contract, by which the defendant purchased from Joseph Martin, all his interest in the partnership property of every kind belonging to the firm of Miller, Martin, Co. The persons composing this firm were, Samuel Miller, Joseph Martin, and John Brozvn. They were possessed of iron works and a store of goods, and When the defendant purchased of Joseph Martin, it was agreed, that he should take the place of the said Joseph Martin, and be responsible for all the debts for which Martin would have been responsible had he continued a partner. The defence set up against the payment of the note was, that the consideration on which it had been given, had failed; inasmuch as the defendant had- been defrauded b.y Joseph Martin, in his representation of the debts due from Miller, Martin, &? Co. and particularly in the amount of a debt due to the house of Francis M'-Coy, & Co., of which the defendant alleged, that Joseph Martin was a secret partner, although Martin denied it. ■ It being important to the defendant to prove that Joseph Martin was a partner in the firm of Francis M’-Coy, Co. he, for this purpose, offered in evidence the deposition of John Cook of Philadelphia. In this deposition the deponent having said, that to the best of his knowledge and belief Joseph Martin was a partner in trade with Francis M'-Coy, proceeded as follows: “that on examining the books of the late firm of Cook Si Cresson, of which the deponent was a partner, he found an entry in their day-book under date of 10th month 12th, 1811, Francis M'-Coy and Joseph Martin, trading under the firm of Francis M'-Coy Es? Co.” To that part of the deposition containing the extract from the books of Cook Es? Cresson, the plaintiffs objected; but the Court permitted it to be read, and an exception was taken to their opinion.</p> <p>The plaintiff offered Francis M‘ Coy as a witness on his behalf; but he was objected to by the defendant as incompetent, and rejected by the Court. Another exception was taken to this opinion.</p> <p>John Brown, one of the house of Miller, Martin, EÍ Co. was examined as a witness for the defendant, and gave a full account of the conversations and transactions which passed previous to the defendant’s purchase from Joseph Martin. He proved, that Joseph Martin was the active partner, and book-keeper of Miller, Martin, Ei Co. It was the wish of John Brown, thát his brother, the defendant, should make the purchase, and he thought the offer of Joseph Martin a good one. .John Brown’s opinion, that Martin’s offer was advantageous to his brother, was founded on an estimate which the three partners of the firm of Miller, Martin, Co. had just made of their stock and d.ebts. When the purchase was proposed to the defendant he remarked, that the goodness of the offer would depend on the amount of debts owing by Miller, Martin, Esf Co. In order to satisfy him on this head, an estimate of the debts was laid before him. It turned out, that the debt to Francis M’-Coy Es? Co. was upwards of 4000 dollars more than the estimate. This the defendant contended, must have been fraudulent, as Joseph Martin must have known the true state of this debt j particularly as he was a partner, (as the defendant asserted,) of both houses. But Joseph Martin denied his being a partner of M'-Coy, and declared, that he was mistaken as to the amount of the debt due to M'-Coy Es? Co, and he offered evidence to shew, that in another instance he had made a mistake which operated in favour of the defendant, viz. that in the list of properly by which Miller, Martin, Ss? Co. made their estimate, there was an omission of many articles of considerable value. To this evidence the defendant objected, and the Court rejected the evidence. To this decision a third exception was taken.</p> <p>A fourth exception was taken by the plaintiff to the following passage in the charge of the Court. “It is said the defendant has confirmed the contract. I do not understand the testimony in this case to amount'to a confirmation. I understand a confirmation to be, where a person knowing his rights, executes a deed of confirmation or other act of equal solemnity in point of law. Here William Brown was to give his bonds or notes ; and he did so in pursuance of the agree- ’ , , . ,, , . meat. If he had renewed the notes, it would have been a confirmation. If, when he tendered the money at the bank, he knew what he knows now, and did not set up the defence, the jury ought to consider it. But if he did not know it, or-was not instructed in it, it was not a confirmation, and he is not bound by it. But the jury will judge.” It appeared in evidence, that one of the defendant’s notes which fell due in 1816, was renewed by the defendant, and afterwards paid; and that he offered at the bank to pay the note on which this suit was brought, if the bank would deduct more than one-half its amount, alleging, that he was deceived as to that part; that it was for one-third of the salary which the partnership had allowed Joseph Martin.</p>

In Emqr, ERROR to the Court of Common Pleas of Lycoming COlinty. 1 This cause having been submitted to arbitrators, an'award was made in favour of the defendant, on the 28th February, 1819. The plaintiff appealed to the Court of Common Pleas, bn the 28th March, following, gave the security requited by law, and paid all the costs, which were then taxed'by the prothonotary.

<p>In ERROR.</p> <p>ERROR to the Court of Common Pleas of Luzerne COUnty.</p>

<p>, An order of the Court to produce books made on the córdfSdls^6' son, though he tur^agént!"</p> <p>Such order ought not to be made during a trial, but previous thereto: and the party should have the same time that he would have to prepare for trial.</p> <p>The affidavit on which such order is grounded, should contain a direct averment of the facts necessary to authorise the order, that the writing is pertinent to the issue, and was in the power or possession of the plaintiff, at the time of the notice.</p> <p>An affidavit, that the writing is " respecting" the land in dispute, is bad.</p> <p>The notice should describe the paper with reasonable certainty.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Union COUnty.</p> <p>This was an ejectment brought by John Keller and others against John Nutz, Philip Moore, and Jacob Gemberling. The plaintiffs and defendants claimed under the same original title, which was a location to John Jacob Gemberling of the 30th October, 1767; a survey of the 29th September, 1768, returned into office on the 25th January, 1770. The plaintiffs claimed under a deed from John Jacob Gemberling to Michael Keller, dated 24th October, 1772, not recorded, and deduced ’ 7 7 . their title from Michael Keller. The defendants claimed under a judgment obtained by Jacob Gemberling against John Jacob Gemberling, on the 25th March, 1794; a sale upon execution thereon, and a deed from the sheriff of the 26th August, 1796, to Jacob Gemberling. They examined one Philip Nutz, who testified, that his father made some clearing on the land during the war of the revolution; that John Jacob Gemberling, two or three years after that war, worked on the land, and boarded with the witness’s father, who lived on an adjoining tract; that his father bought from John Jacob Gemberling 50 acres for 50 pounds, and paid 20 pounds and no more. John Jacob Gemberling went away and never returned ; his father gave the land to Jacob Gemberling, who paid back the 20 pounds; there was no farther cultivation of the land until Michael Keller, who claimed under Jacob Gemberling, gave a lease to the witness 16 or 17years ago; until that time there was no building on it. The defendants also gave in evidence a deed, dated 20th April, 1785, from Jacob Keller to Leonard Keller, Tobias Ream, George Stake, and Jacob Swigert, recorded on the 31st May, 1785. To prove the pedigree of the plaintiffs, they offered in evidence certain depositions of Adam Musser and others, living in Lancaster county, taken under a rule of Court entered by the plaintiffs, “ to take depositions ex parte on ten days notice.” These depositions were taken before one of the Judges of the Court of Common Pleas of Lancaster county, at Reamstoxvn, in that county, on the 1st November, 1815. They were objected to by the defendants, because the rule of Court did not specify, that the depositions were to be taken before a judge or justice. The Court sustained the objection and rejected the depositions, and the plaintiffs excepted to their opinion.</p> <p>The witness who proved the notice to the defendants of the time and place of taking these depositions testified, that he gave one of the defendants a copy of the notice, and that no one attended on behalf of the defendants. The notice was dated 29th September, 1815, that the depositions would be taken on the 1st November, at Reamstoxvn. It did not appear by the record of the evidence returned with the bill of exceptions, that any question was asked the^witness as to the time when he served the. notice.</p> <p>The counsel for the plaintiffs requested the Court below to charge the jury to the following effect.</p> <p>1. That the recording of the deed from Jacob Keller to George Stake and others, and the recitals therein contained, were notice to the purchaser at sheriff’s sale of all the deeds recited therein.</p> <p>Answer of the Court. The recording of the deed from Jacob Keller to George Stake and others, was not notice to the defendants; as they do not claim title by or under that deed, but from a source anterior.</p> <p>2. That it was not incumbent on the plaintiffs, or any person under whom they claim, to record the deed of 1772, from Gemberling to Michael Keller.</p> <p>Answer of the Court. If Jacob Gemberling and John Jacob Gemberling were the same person, the plaintiffs’ keeping the deed of the 24th October, 1772, secret more than forty years, and John Jacob Gemberling taking possession of the land and enjoying it as his own, long after that deed purports to be dated, and contracting debts and .suffering the land to be sold for the payment of them, the Court are of opinion, that it was necessary that deed should have been recorded, (although the date of it is prior to tjie recording act of 1775;) or, that some other notice of that deed or of the claim of the plaintiffs, should have been given; otherwise, the recovery of the plaintiffs will be barred in equity, if the jury consider the defendants bona fide purchasers for a valuable consideration without notice of the plaintiffs’ claim.</p>

jN jrRR0R. ERROR to the Court of Common Pleas of Northum• berland county. , The trustees of Dickenson College who were plaintiffs below, made title under an application in the name of Thomas ^°gersi entered the 3d April, 17'69, on which a survey was made the 9th July, 1772, and returned the 23d August, 1772. Thomas Rogers, conveyed to John Musser, who conveyed to Samuel Miles, who conveyed to the plaintiffs.

<p>If a levy and sale are not by fixed boundaries, or of any ascertained quantity, but of a certain number of acres more or less, in the tenure o A. B., the vendee holds by the extent of such tenure.</p> <p>Articles of agreement not recorded, cannot affect a subsequent purchaser at sheriff's sale who has not actual notice of them.</p> <p>The declarations of a party, that he did not buy the lands in dispute, are evidence against him, but are not a positive bar in equity.</p>

<p>In Error.</p> <p>THIS was a writ of error to the Court of Cpmmon Pléas of Lycoming county, in an ejectment brought by the plaintiff in error, on which bills of exceptions to the charge . ,. , ^ of the Court, and to certain answers of the Court to questions proposed by the plaintiff’s counsel, were returned with the record.</p> <p>The charge of the Court was as follows: °</p> <p>. “ In this case, both the plaintiff and defendant claim the right of pre-emption by virtue of their improvements. In disputes of this kind, the first consideration for the jury is, , J whether the plaintiff or the defendant, was the first improver, or, in other words, which of them first acquired the right pre-emption. By the right of pre-emption is meant an equi- , , • ‘ , r , table estate, or a right of being a first purchaser from the Commonwealth of the estate which they hold, and is acquired by a person’s making improvements upon vacant land and making it a place of residence for himself, and actually residing there with his family, raising grain, &c. From the evidence it appears, that Jonathan Baity, under whom the defendant claims, built a cabin, and moved upon the land in dispute in 1796, and lived therewith his family for some . 1 J time ; cleared a garden, and raised beans and corn, as some of the witnesses prove, after which.he sold his improvement to William MiKee, and moved with his family to the state of ' * New Tork, and William MiKee, and his tenant James Alexander, lived upon the place until the death of William M'-Kee. The lease given by M'Kee to James Alexander, is dated the 30th March, 1801, for the cabin and fifty acres, for seven years, by which James Alexander, covenants to clear land. This ejectment is brought to recover the part of the tract which Alexander lived upon, or the greater proportion of it.</p> <p>“ William M’-Kee, before his decease, by his deed dated the 27th March, 1804, in consideration of four hundred dollars, conveyed this improvement to William and Oliver Watson. The deed was acknowledged the day of the date, before James Stezvart, and upon the 30th August, 1811, they took out a warrant in their own name for two hundred acres, including an improvement, interest to commence from the 1st March, 1796, and they had a survey made of 160| acres by John Batton, the deputy surveyor. By right of improvement, the improver may take up at least 300 acres. It appears, that this tract does not contain that quantity of land. MiKee,s tenant, Alexander, cleared land and raised grain from year to year, and since was turned out of possession, Watson the defendant, has lived there, and continued to improve the land. Contrary to the common order of charging juries, the defendant’s claim has been first stated, because it commenced prior to that of the plaintiff. It is in evidence, that about one year after Jonathan Baily had possession of this land, the plaintiff, William Gilday, in 1797, built a cabin and moved his family upon the land, and has continued to reside there ever since, has made some improvements, and has raised grain. From this it must appear to the jury, that the defendant claiming under the eldest improvement, must be preferred unless he has in some way parted with or abandoned his claim. This cause presents a singular case of a second improver bringing an ejectment to turn out the assignees of the first improver; not from any part of his uncultivated land, but actually from the house built by Baily, and the cleared land adjoining. The counsel for the plaintiff contend, that Jonathan Baily having expressed his intention of moving to New Tork state whenever his father, who resided there, would come or send for him, was not an improver, as required by the act of assembly, and that therefore Gilday, the plaintiff, was the first improver. It is in evidence, that Baily resided upon the land from 1796 until 1798, cleared about one-quarter of an acre, and, as some of the witnesses say, raised in his garden, beans and corn. This being the case, if Gilday came upon the land without the consent of Baily, who was there in actual possession, he would be considered as a trespasser; and Baily having resided upon the land with his family about two years, had a right, if he chose, to sell his improvement right, and move where he pleased. And his assignees having ever since continued their improvements and possession, must be considered as entitled to the right of pre-emption, and are improvers as required by the act of assembly, from the time Baily commenced his residence on the land. In this case the plaintiff claims no other dtle than a right of pre-emption; and from the evidence it appears, that the defendant, and those under whom he claims, have had more than seven years possession before the bringing of this ejectment. If the jury are satisfied from the evidence, that the defendant has had more than seven years adverse possession before the commencement of the ejectment, the statute of limitations is a bar to the plaintiff’s recovery. The plaintiff’s counsel have also contended, that there was a parol agreement to divide the land between Baily and Gilday, and also between M>Kee and Gilday. If there ever was a promise to make partition by either Baily or MiKee, being a parol promise without any partition being made or money paid, or possession delivered, it would not be valid under the act of assembly of the 21st March, 1772, to prevent frauds and injuries, against the defendant, a purchaser for a valuable consideration without notice. The possession of the plaintiff where he lives, would not be notice to the defendant, as he was not in possession of the land which he now claims. The decree of the board of property, that the land should be divided so as to give each an equal front on the creek, and to secure to each their improvements, was not conclusive upon the parties; they had a right to resort to their action at law, and that decree is not binding upon this Court and jury.”</p> <p>The counsel for the plaintiff then requested the Court to to charge the jury on the following points, viz.</p> <p>1st. That if the jury are of opinion, that Jonathan Baily’s settlement was for a temporary purpose, and not to make a permanent residence upon the land, nor with intent to take it rip, and appropriate it as his own, nor with a manifest intention of making it a place of abode, and the means of supporting a family ; that then William. Gilday was the first actual and bona fide settler, and had the first improvement right.</p> <p>2d. That if they believe,' that there were agreements between Baily and Gilday, and between M'-Kee and Gilday, to divide the land between them, so as to give the lower half to Gilday and the upper to M'-Kee, as stated by the witnesses Mahaffy, Reeder, and Murphy, Gilday ought to recover in this ejectment.</p> <p>3d. That Gilday’s residence was sufficient notice to the Watsons to put them upon inquiry as to his claim. That the common talk in the neighbourhood as to Gilday’s claim, and his assessments for taxes from 1799 to 1812, are presumptive evidence of notice.</p> <p>4th. That if the Watsons gave no consideration to M'-Kee they derive no equity from want of notice.</p> <p>5th. That if the parol agreements of Gilday with those under whom the defendant claims, are of such a nature, as they are stated by the witnesses, that the statute of frauds and perjuries will prevent the plaintiff’s recovery.</p> <p>6th. That compromising disputes and agreeing upon the division line between M‘Kee and Gilday, if the jury believe Reeder, Murphy, Mahaffy, and Dominy, although by parol, are not within the statute of frauds respecting parol sales of land.</p> <p>7th. That the seven years limitation act of 26th March, 1785, sect. 5, will not bar the plaintiff’s recovery in this case, if the jury believe the evidence which has been given.</p> <p>8th. That the Watsons paying no money to M'-Kee in his life-time, they were not purchasers for a valuable consideration protected by the statute of frauds and perjuries, until they did pay or give some consideration.</p> <p>To these points the Court instructed the jury as follows:</p> <p>1st. If Baily was not the first settler, then most certainly Gilday would be the first. This was fully explained in the charge.</p> <p>2d. Parol partition without marking lines or delivery of possession, is void under the act of assembly .to prevent frauds and perjuries, and could not affect Watson, a purchaser for a valuable consideration without notice.</p> <p>3d. Gilday’s residence, where he had possession, would be notice. But no notice to Watson, where Alexander >,.-!d under M'-Kee. Nor would the common talk or p: , . ;f taxes be notice.</p> <p>4th. The Watsons’ possession would protect them, unless the plaintiff shews some right to the possession. The deed purports to be for a valuable consideration, and M'-Kee’s administrators, since his decease, appear to have paid the purchase money, and Gilday has nothing to do with the bargain. If MlKee had a good title, Gilday has none for this land.</p> <p>5th. A parol agreement to divide without possession, and without consideration, and without lines being marked, is within the statute.</p> <p>6th. I have told the jury, that a parol agreement, if any such agreement there ever was, is void under the statute without lines and without possession, and without any consideration paid.</p> <p>7th. The statute, from the evidence, does bar the plaintiff’s recovery. The plaintiff was never in possession, but the defendant and those under whom he claims, have had 16 or 17 years possession before this ejectment was brought, and about 21 years now, according to the evidence. A person holding a mere equity of pre-emption cannot recover, unless he has been in possession within seven years before the commencement of his action.</p> <p>8th. It is of no consequence whether the Watsons paid what they had contracted to pay in M'-Kee’s life-time, or after his decease. They were bound to pay what they contracted, and it is no consequence to Gilday when they paid it.</p>

<p>In Error.</p> <p>TRESPASS, brought by James B. Clow, and James Sharp, against William Woods, in the Court of Common Pleas, of Allegheny county. 7 <-> u •*</p> <p>The following case was stated in the Court below, an<i agreed to be considered in the nature of a special ..... i . i <■ . upon which judgment was entered for the defendant.</p> <p>On the 19th September, 1815, James B. Clow, one of the plaintiffs, was the drawer of an accommodation note in bank, for g 950, in his own name, for the use of John Hancock, James Sharp, the other plaintiff, was the indorser of two accommodation notes in bank, drawn by said John Hancock, one for g 272, and the other for g 500. As a security to the said plaintiffs, and as an indemnity against their future liability for the said notes, John Hancock, on the 19th September, 1815, executed and delivered to them, a mortgage of the bark and tools in his tanyard, and his skins and leather unfinished, and then, and for a long while after, in bark, and in the vats in the process of tanning. This mortgage was not recorded, and the mortgaged property remained in the possession of the mortgagor, who was a tanner, and continued to work and conduct the said leather through the process of tanning, using for that purpose, the said tools and bark. The plaintiffs became liable for, and paid the said notes. John Hancock, continued in possession of the tan-yard, apparently the owner of it, and of the property therein contained. Some time previous to the 39th September, 1815, a George Toe, entered into partnership with John. Hancock, which was to continue for seven years. Before the expiration of this time, they dissolved the partnership by consent, and on the 20th November, 1815, for the adjustment of their accounts, entered an amicable suit in the Court of Common Pleas of Allegheny county, and submitted it to arbitrators, who, on the 22d March, 1816, reported in favour of George Toe the sum of $2252 73 cents : judgment was entered thereon, and a fieri facias was issued on the S2d March, 1816, returnable to April Term, 1816, and directed to, and put into the hands of the defendant William Woods, the sheriff of the county. When the sheriff went to the house of John Hancock with the fieri facias to make a levy, and just before he made it, he received notice of the said mortgage, and not before. Nor had George Poe any notice of the said mortgage before the levy was made. The sheriff levied on the property contained in the said mortgage; removed and sold the same for a sum more than sufficient to pay the mortgage. He refused, on request, to pay any part of the money arising from the said sale over to the said mortgagees, but paid the same to George Poe.</p> <p>The mortgage was as follows :</p> <p>THIS INDENTURE, made the 19th day of September, in the year of our Lord, 1815. Between John Hancock, of Pittsburgh, tanner, of the first part, and fames B. Cloxv, and fames Sharp, of the same place, of the second part.</p> <p>Witnesseth, that the party of the first part, is indebted to the said James B. Cloxv, in the sum of g 950, bearing no interest. And xvhereas the said fames Sharp, is the indorser of two accommodation notes, one for g 272, discounted at the bank of Pittsburgh, the other for g 500, discounted at the Farmers’ and Mechanics’ Bank of Pittsburgh. '</p> <p>Now this Indenture witnesseth, that the said party of the first part, for and in consideration of the debt, and two indorsements aforesaid; and for the better securing of the same, and the indemnity of the said indorser: and also, in consideration of the. sum of one dollar, to him in hand paid, by the parties of the second part, Hath bargained and sold, and by these presents, doth bargain and sell unto the parties of the second part, all those goods and chattels now in his tanyard in Liberty street, in the Northern Liberties of Pittsburgh, (to wit,) all the bark and tools and implements of trade of the party of the first part, all his calf skins in bark, and all his sides of leather in bark, With the appurtenances. To have and to hold the said goods and chattels above, and by these presents bargained and sold unto the said parties of the second part, as their own proper goods and chattels from henceforth for ever. Provided always, and upon condition, that the party of the first part shall, as it will conduce to the interests of all parties, have the right and privilege undisturbed and unmolested, of remaining in possession of the 'goods and chattels, tools, &c., in his tanyard aforesaid, for the purpose of working, tanning and finishing the same. And provided always, and upon consideration, that if the said party of the first part, his heirs, executors, or administrators, do well and truly pay, or cause to be paid the debt aforesaid; and also finally take up and pay, and save harmless, and indemnify the said James Sharp, from the indorsements aforesaid, and also from the indorsements of any notes of renewal of the aforesaid accommodation notes, without any loss, expense, deduction, or abatement whatsoever, that then this present indenture, and every thing herein contained, shall cease, determine, and be void. And the said party of the first part, covenants to pay the debt and notes aforesaid, and save harmless and indemnify his indorser aforesaid. And also, that the said parties of the second part, shall, and may at all times after default shall be made in performance of the proviso or conditions, or'any one of them aforesaid, peaceably and quietly have, hold, use, occupy, possess, and enjoy, all and singular, the said goods, profits, and premises above mentioned, and every of them to their own proper use,</p> <p>benefit, and behoof for ever, without the let, hindrance, molestation or trouble of the party of the first part, his heirs, executors, or administrators.</p> <p>In testimony whereof, the said parties have hereunto set their hands and seals, &c.</p> <p>Received of the parties of the second part, the sum of one dollar, the consideration money aforesaid.</p> <p> JOHN HANCOCK. </p>

<p>In Error.</p> <p>THIS was a writ of error to the Court of Common Pleas of Allegheney county, in an action of dower brought by Elizabeth Thompson widow of Moses Thompson deceased, against William Morrow, in which two bills of exceptions were taken by the plaintiff in the Court below.</p> <p>This case had been previously twice argued, and 1 ilghman C. J. being prevented by sickness from attending at this Term, he sent his opinion, which was read by Gibson J. as . r , * ’ 3 3 the opinion or the Court.</p>

In Error. ERROR to the Court of Common Pleas of Somerset county. Abraham Kimmel, brought an action of debt by summons against George Kimmel, and John Kimmel, in the Court of Common Pleas of Somerset county.

<p>Notwithstanding evidence has been given on the part of the defendant of declarations made by a person under whom the plaintiffs claim, it is not competent to the plaintiffs to give in evidence other declarations by the same occasions.</p> <p>It seemsthat the deorphan?6 Court for the m¿e auhe dren is admissible on behalf of those claiming adversely to the vendor and vendee, to corroborate the declaration of the vendor that he had sold to the vendee»</p>

<p>Where a magistrate has a general jurisdiction over the subject matter, and intends to act as a magistrate but mistakes the law, he is entitled to notice previously to the commencement of a suit against him for an illegal act.</p> <p>Therefore, where a magistrate committed a person for travelling on Sunday, though the commitment was unauthorised by law, he was held entitled to previous notice.</p> <p>If a person acting as a constable is sued jointly with the magistrate, he must be acquitted, if helms pursued his warrant.</p> <p>The Court cannot, after reserving a point and verdict for the plaintiff, order a nonsuit.</p>

<p>On the death of a person intestate leaving no widow nor lawful issue, but a brothers and sisters, the remainder in fee vests in the brothers and sisters, under the 6th section of the act of 19th April, 1794, at the same instant that the life estate passes to the father.</p> <p>Therefore, a person who has married one of the sisters, cannot be a witness in favour of the father in an ejectment for land that descended from such intestate though he has released all his interest in possession remainder or reversion in his own right or the right of his wife.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Fayette county.</p> <p>James Shaw, and Margaret his wife, late Margaret Boyd, widow of William Boyd deceased, brought this writ of dower unde nihil habet against Thomas Boyd, of a certain messuage and tract of land, with the appurtenances, in Fayette county, containing 232# acres, whereof the said William Boyd lately died seised, &c. Two pleas were pleaded by J J 7 r r j the defendant.</p> <p>1st. That Margaret Shaw late Margaret Boyd, on the 19th day of November, a. d. 1811, at the county aforesaid, before her marriage was had and solemnised with the said William Boyd, by her deed in writing under hand and seal bearing date the day and year aforesaid, and made , , , , , - , J and with the consent and advice ol Elizabeth ranee, her ther and only parent and guardian, in contemplation of the marriage to be had and solemnised between her and the said William Boyd, did agree with Thomas Boyd, (prout bond,) in consideration of $500 to be paid her by the executors or administrators of the said William, after his decease to release and quit all claim and right of dower, (inter alia,) which she at any time might have or be entitled to, of, in, to, or out of the lands, tenements, and hereditaments, of which the said William might be at any time seised during his life and that in pursuance of said agreement afterwards, to wit, on the 20th day of June, 1812, at the county aforesaid, and after the death of the said William Boyd, and in consideration of the $500 aforesaid, then, and there to her paid in hand by the said Thomas Boyd, the defendant, and Robert ^ ^ Boyd, administrators of the estate of the said William, then deceased; she the said Margaret Shaw, then Margaret Boyd, by her deed bearing date the day and year aforesaid, did remise, release, and forever quit claim unto the said Thomas Boyd, the defendant, Robert Boyd, and all the other children, heirs, and representatives of the said William Boyd,, and to their heirs, executors, administrators, and assigns, respectively, all, and all manner of dower, and right of dower, title, or claim thereof, which she, the said Margaret then had, might, should, or of right ought to have or claim, of, in, to, or out of, all the lands, tenements, and hereditaments whereof the said William Boyd was seised, from the time of his intermarriage with the said Margaret until his death, &c. prout deed, &c.</p> <p>2d. That the $500, so as aforesaid received by the said Margaret, have since her intermarriage with the aforesaid James Shaw, been applied and appropriated by the said James Shaw to his own proper use, &c,</p> <p>The plaintiff replied to the first plea of the defendant, that the said Margaret Shaw, late Margaret Boyd, was an infant under the age of twenty-one years at the several times of giving the bond, receiving the $ 500, and executing the release mentioned in the defendant’s said plea, &c.</p> <p>And to the defendant’s second plea the plaintiff demurred, and the defendant joined in demurrer.</p> <p>To the plaintiff’s replication to the defendant’s first plea, the defendant demurred, and the plaintiff joined in demurrer.</p> <p>The Court below gave judgment for the defendant.</p> <p>The case was now argued by Lyon, for the plaintiff in error, and Campbell, for the defendant in error.</p>

<p>To prove a lost receipt attested by a subscribing witness the attesting witness must himself be produced, or the omission to do so, must be supplied in the same manner, as if the paper were produced.</p>

In Error. ERROR to the Court of Quarter Sessions of Greene county. Sarah Jacobs, the defendant below, was indicted, and convicted of larceny.

In ERROR. ERROR to the Court of Common Pleas of Washington . • ° COttHty* . This action was brought by the defendant in error the plaintiff below, against James Smith, to recover upon a prom*ssory note drawn by Joseph S. Newell in favour of and indorsed by the defendant Smith.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Westmore- ,. j lutld County*</p> <p>This was an action of covenant by Feay, who was the plaintiff below, on articles of agreement, dated 17th Ausrust, r . * * i 7~\ ° , _ d 1 1815, by which, Decamp, covenanted to convey to leay, tract of land. By the agreement, Feay was to pay g 4000, that is to say, g 50, on making the agreement; § 450, on tile 16th September, ensuing, and g 1500, on the 1st April, following. As soon as these sums should be paid, Decamp, was to execute a conveyance, and the remaining sum of g 2000, was to be paid by instalments, secured by a mortgage of the premises sold, or approved security. The plaintiff averred performance of the covenants on his part: this was traversed, and formed the only ground of contest in the cause. There was evidence, that the several sums were paid as they fell due, except the g 1500, which became due on the 1st April, 1816, of which, there was g 600 paid on the 3d April, 1816, and the remaining g 900, with interest, was tendered in Bank notes, on the 15th August, following. The .defendant refused to receive it, saying it was not enough, (although the sum was offered to be counted down,) and that “ he would not take that kind of money, as the article called for so many dollars cash, and that was not dollars at J 1 . all.” The plaintiff pressing the defendant to take the money, the latter said, “ I wish I could take it, where is my mage?” The plaintiff said he had received none, and ed four bonds for the residue, to which the defendant objected, on account of their being mispelled and interlined, and the plaintiff then tendered a mortgage : after which, the defendant said, “If I would take that money, would you give ten cent., to make it equal fo Philadelphia money ?” which the plaintiff refused. The defendant observed, he had suffered five hundred dollars damage, in not getting his money in time ; and on this, the plaintiff went away.</p> <p>G. W. Bartlett; a witness for the defendant, swore, that on the 3d April, 1816, when the plaintiff tendered the g 600, the defendant refused to take it, saying, it was not the quantity, or quality, he was to have on that payment: that he expected it in specie, which would answer his purpose much better than bank bills: the plaintiff told him to take the g 600, and if he did not pay him up the balance of the g 1500, on Saturday following, (the 6th April,) he would not ask for any of the money back, but he might keep land and money both : and the defendant agreed to take the g 600, on these terms, that if the plaintiff did not pay the balance on the 6th April following, the contract should be void; and the plaintiff agreed.</p> <p>The Court below, charged the jury, that “ they held it to be clear law, that there is no other legal money but gold, silver, and copper coin, which has been recognised by the general government. Bank notes, or any other species of paper, are but the representative of money, which neither of the parties to a contract, whose object was lawful money, are bound to accept of, even were it generally considered equal in value. But if good bank notes are tendered, in discharge of a contract, and not objected to at the time, but a'compliance with the contract is declined upon another and different ground; and especially, if the refusal be attended with circumstances of fraud, such a tender is good in equity, and ought, in our Courts, (which, from the want of a chancery, are under the necessity of adopting many of its rules and principles,) to be viewed as valid, in law.”</p> <p>That “ the great question is, whether the refusal to take the money, arose from a determination by the defendant, to dissolve the contract, and keep the money he had received. His principal ground of complaint, seems to have proceeded from an alleged disappointment, in having been unable to purchase, or pay for land in Mercer county, of which, no testimony has been given.”</p> <p>That «it had been alleged, that the delay was unreasonably long, and put an end to the contract in question. But a principle of this kind can only apply, when the contract is entire. When a compensation can be made for the delay of a partial fulfilment of it, courts of equity, as well as of law, will enforce it. In respect to the parol agreement, as given in testimony by one Bartlett, admitting you fully believe the whole of it, it resembles too much the bond to Shy lock the Jew, for the pound of flesh. It ought not to stand in the way of justice.” That “ in regard to the amount of damages, since the defendant is now unwilling to consider the contract at an end, and also to refund the money, or even to submit it to you or any other, whether the whole or any part of it should be repaid, we do not see how you can consider it as dissolved. Considering it, therefore, as still in force, should you be satisfied of the plaintiff’s right to the present remedy, you may find such a sum in damages, as will compel the defendant to do substantial justice. Should they be amply sufficient for that purpose, we shall endeavour, on our part, to prevent any improper advantage being taken by the plaintiff, of your verdict.”</p>

In Error. ERROR to the Court of Common Pleas of Allegheny County» This was an action of debt brought by Boyce, the plaintiff below, and was referred to arbitrators under the act of 20th March, 1810, who made an award in favour of the defendant. The plaintiff appealed, and a recognisance was entered into by John H. Chapin, for prosecuting the appeal with effect.

In Error. REPLEVIN, in the Court of Common Pleas of Aliegheny county, brought by M'-Dermot against Lecky. The sheriff returned the writ executed, by taking bonds from the . J ° plaintiff and defendant. The parties appeared, and went on to trial, but no plea was put in by the defendant. A verdiet was given for the plaintiff, and the Court below refused , , to arrest the judgment.

<p>A sheriff’s deed is not evidence, without producing the judgment and execution.</p>

<p>' Habeas Corpus.</p>

In Error. BY the writ of error to the Court of Common Pleas of Franklin county, in this case it appeared, that the suit was brought in the name of Robert Haslet, for the use of his ass*Snee» Samuel Radebaugh, on a single bill for ¡8 900, dated 3d February, 1814, payable the 1st March, i8l6, given by John Truxal, and John Brotherton, his security, to the said Robert Haslet.

<p>THERE were in this case appeals by both parties from the decree of the Orphans’ Court of Cumberland county, made in relation to the fees charged by the appellant, William Ramsey, clerk of the Orphans’ Court of that county, on the proceedings in that Court for the sale of the real estate of general William Alexander deceased, who died intestate.</p> <p>A petition was presented by the heirs of general Alexander for division of his lands among them, and an inquisition was held, by which the estate was divided into twelve parts. There were twenty heirs; and they all refused to take the estate at the valuation fixed by the jury, and it was thereupon ordered by the Court to be sold, upon the terms of one-third of the purchase money being paid down, and the residue in three instalments ; the purchasers to give security for payment, by entering into a recognisance to the heirs of Alexander, with two good sureties. The administrators put the estate up to sale, and reported to the Court that they had sold part, and that the residue remained unsold for want of buyers. The order of sale of the residue was renewed time to time till the whole was sold, and in taking security from the purchasers, the clerk took a separate recognisance for each instalment to each of the twenty heirs. The consequence was, that he charged for 480 recognisances, at 25 cents each, amounting to 120 dollars. These fees constituted the principal object in dispute : and the Court below disallowed them.</p> <p>The jury had divided the estate into twelve purparts for the accommodation of the heirs ; and the appellant charged, without objection, three dollars for each share or purpart. The Court below allowed this charged.</p> <p>Another charge was 24 dollars upon six sales. Of this fee the Court below allowed four dollars, and struck off the rest.</p> <p>The appellant also charged for writing sixteen advertisements of sale at 25 cents each. The Court below had ordered twelve of these advertisements; and on that ground allowed the charge for that number, amounting, at three dollars for each sale, to six dollars.</p> <p>The last subject of dispute was a charge of 1 dollar and 25 cents for recording six drafts, which the Court below disallowed.</p>

<p>Leaving a blank in the writ of error for the month ‘ in which the Court is to be held, is a clerical error, which this Court may amend by the precipe.</p> <p>If it appears in the narr. that the suit was commenced before the justice, before the cause of. action accrued, it is a fatal error.</p> <p>A venire facias de novo will not be granted where no error is shewn in any thing that took place during the trial.</p>

In Error. ERROR to the Court of Quarter Sessions of Montgomery county, The plaintiffs below, (who were also the plaintiffs in error,) declared against the defendants for money had and received, and having given evidence, which the defendants supposed tended to impeach the honesty of Andrew Gilkeson, their testator, they, in the course of the cross-examination of one of the plaintiff’s witnesses, asked him what was the general character of Andrew Gilkeson.

In Error. ERROR to the Court of Common Pleas of the county of Philadelphia, in a replevin brought by John Hill Maru Miller and Thomas Cooper. Mary Miller avowed, and Thomas Cooper 9 made cognisance as her bailiff, for rent in arrear. Replication no rent in arrear and issue.

In Error.. ERROR to the District Court of the city and county of Philadelphia, in an action on the case brought by Joseph Morse against J. Whitall. The only errors assigned in this Court were upon the declaration, which stated that, “ whereas heretofore, to wit, °n the 22d day of January, in the year of our Lord 1816, at tjje COunty aforesaid, a discourse was had, bv and between.

<p>Parol evidence is admissible in a suit by the indorser against the indorser of a note indorsed in blank to shew, that at the of the indorsement the indorse received the note agreement that he should course upon it to the indorser.</p>

<p>One of two executors, defendants in. the suit, cannot be a witness for the defendants on the plea of non assumpserunt, payment, and set-off, though all the costs which accrued have been paid as well as those which could accrue to the end of the suit.</p>

In Error. ERROR to the District Court of the city and county of Philadelphia. It was assigned for error in this case, that Reuben Moore, jun. an infant, one of the plaintiffs in error, and one of the defendants below, appeared in the Court below by attorney,C and not by guardian. The defendant in error pleaded in ,, nnllo est erratum.

<p>An appeal to the Supreme Court lies from a decree for a divorce made by the Court of Common Pleas in pursuance of a verdict.</p> <p>The Supreme Court will not, on such appeal, re-try the matters of fact decided by the jury in the COurt below.</p>

In Error. THIS was a writ of error to the District Court for the city and county of Philadelphia, in an ejectment brought by Elliott, the plaintiff below, against Hamilton for a ment and lot of ground on the north side of Poplar lane, in the county of Philadelphia.

In Error. ERROR to the District Court of the city and county of Philadelphia in ejectment, in which there was a case stated in the Court below, which was to be considered in the nature of a special verdict. It appeared, that Enoch Thomas was the husband of Han- , , . , . nah Thomas, by whom he had issue a daughter, now an mfant, and that he was seised in right of his wife, of the house and lot for which this ejectment was brought.

IN ERROR. ERROR to the Court of Common Pleas of Philadel- - . ptlia COUHty. Thomas W. Barton, (the plaintiff below,) brought suit against Solomon Sealy, before Justice Moulder, and obtained judgment for 27 dollars 25 cents. Sealy appealed to the Court of Common Pleas ; in which Court the plaintiff entered a rule of' arbitration on which there was an award in his favour of five dollars, and the costs of suit.

<p>In slander, if actionable words are contained in a count and also other words not actionable, a judgment on such count after verdict for the plaintiff is good.</p>

In Error. ERROR to the District Court of the city and county Philadelphia.

<p>Habeas Corpus.</p> <p>BY the return of the Habeas Carpus in this case, it ap- * ' 1 peared, that Harrison Hall was sued by T. Jordan, the lator, before an alderman, who gave judgment on the June, 1819, in favour of Harrison Hall, for 52 dollars and 50 cents. John Cullen became special bail for Jordan, and entered into a recognisance, the condition of which was, that T. Jordan should, within six months from the date of the judgment, pay the debt, or that within the said term, his body should be surrendered according to law. On the 13th December, 1819, Harrison Hall issued a scire facias against John Cullen, upon this recognisance, returnable on the 20th December. On the 17th December, John Cullen gave him . ° note as a collateral security. On the 20th December, the alderman in Harrison HalPs absence, and contrary to wishes, entered judgment against John Cullen. Harrison Hall, on the same day requested the alderman to discontinue the suit on the scire facias, and an entry of discontinuance was made on the magistrate’s docket. John Cullen having i , . . , . , ° taken out a bail piece, 1. Jordan was arrested by'his order in New Tork, and surrendered here on the 20th, and was 5 7 now detained on the bail-piece.</p>

<p>Where an assignment was made " in trust to pay the debts due the following persons, viz” and -then followed the names and debts, and a debt due one creditor was put down "about 11,000 dollars,” which was in fact upwards of 13,000 dollars, held, that the trust included the latter sum.</p> <p>A nominal plaintiff in whose name a a suit is brought by the party beneficially interested, is a witness for the latter, on a sum sufficient to cover all the costs, being paid into Court.</p>

<p>A book kept by a forge-master for the purpose of settling with his workmen in which are entered their names, the quantity of iron delivered, the date and sometimes the price, is not such a book of original entries as is evidence against a purchaser of the iron, though it contains also the names of purchasers.</p> <p>A defendant, under the plea of set-off, entered in short, cannot give in evidence matters of set-off, of which on demand of the plaintiff's attorney, a specification has been refused, and no notice has been five.</p> <p>Where the defendant pleads non assumpsit, and payment or set-off, his failing to prove his claim against the plaintiff, is no acknowledgment of the plaintiff's debts.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Philadelphia county.</p>

<p>Certiorari.</p> <p>THIS case was removed by certiorari from the Mayor’s Court of the city of Philadelphia, who, on appeal, had quashed an order for the removal of a pauper from Philadelphia r r ¿ to Bucks county. It was argued by Ewing, for the defendants, and Morris for the plaintiffs.</p>

<p>If the plaintiff, after a capius and bail baud,arbitrate the suit and obtain an award before the return day of the capias, special bail is dispensed with.</p>

THIS case was tried before the Chief Justice at Nisi Prins in February, and a verdict was found for the defendant.

In Error. Common covenant THIS was a writ of error to the Court of Fleas of Northampton county, in an action of brought by Hays against Bellas, in which there was a verdiet and judgment for the plaintiff for 900 dollars.

JN ERROR. ERROR to the District Court of the city and county of Philadelphia.

RULE upon the plaintiff to shew cause of action, and why the foreign attachment issued in this case should not be dissolved,

Quo Warranto. THIS was a rule upon Daniel Bussier, to shew cause why an information in nature of a quo warranto should not be filed against him, on the relation of Benjamin Reynolds, calling on him to shew why he exercised the office of inspector of salt provisions for the city, county, and port of Philadelphia. A rule of the same kind had been granted against Benjamin Reynolds at the relation of Daniel Bussier.

In Error, ERROR to the Court of Quarter Sessions of Philadelphia county. The plaintiff in error, John Rogers, was indicted and convicted in the Court of Quarter Sessions.

<p>Query, Whether after a verdict against the defendant as executor, the can on motion be allowed to set-off against the amount a debt, due to him personally by the plaintiff, for which he has obtained judgment.</p> <p>Where a surviving partner has obtained judgment, being insolvent and having previously made an assignment, and the state of the partnership accounts does not appear, the defendant will not be allowed to set-off a debt due to him by judgment obtained against the plaintiff personally.</p> <p>After the payment of the partnership debts, the plaintiff’s share of the residue is liable to his separate creditors, and might perhaps be subject to such set-off.</p>

<p>What constitutes a double insurance.</p>

<p>A public officer is not liable personally on contracts made by him officially, except upon the most clear and satisfactory evidence of an express and unqualified engagement to become so.</p> <p>Funds placed by Government in such officer’s hands, and invested by him in stock, but not specifically appropriated, do not alter the case.</p>

THIS case was tried before Duncan J. on the 3d December, 1819, and a verdict found for the plaintiff, subject to the opinion of the Court. _ . v, r - , , It was an action on a policy ot insurance on the schooner Hope, at and from Philadelphia to Corunna.

Quo Warranto. THIS cause came before the Court on a motion for a rule on the defendants, to shew cause why an information in natur£ a Warranto should not be filed against them for usurping the office of vestrymen of “ St. Thomas’s African Episcopal Church of PhiladelphiaBy agreement of parties, the controversy was reduced to a single question, whether a bye-law made on the 3d April, 1819, was valid, by which it was enacted, that no member of this church whose pew rent was in…

<p>DEBT on bond, tried before the Chief Tustice at # ^ Nisi Prius, and verdict for the defendant,</p> <p>1 he suit was an amicable action of debt, entered in the of Thomas Latimer and Joshua Lippincott, assignees of George Farquhar, against Samuel Hodrdon. The decla. . , , . . , , , , r ration was in debt, on a joint and several bond, from Samuel Hodgdon and Thomas Allibone, to Samuel Fork, dated 25th May, 1813, assigned by Samuel York to the plaintiffs, on the ° „ , , , , , •, 28th Jkebruary, 1816, the defendant pleaded payment with leave, &c., and set-off: but gave no notice of special matter,</p> <p>On the trial the plaintiffs offered in evidence, a joint and several bond from Samuel Hodgdon and Thomas Allibone, to Samuel York, on which was indorsed an assignment by Samue^ York to the plaintiffs, on the 28th February, 1816, under seal and in the presence of two witnesses. The defendant objected to the bond’s being given in evidence, on the ground thut the plaintiffs were not stated in the agreement to enter the action, to be the assignees of Samitel York, but of George Farquhar. But the objection was overruled by the Court, and the bond admitted in evidence.</p> <p>The defendant had given a notice to the plaintiffs’ counsel to produce on trial the general assignment of George Farquhar to the plaintiffs, with the schedule annexed, and also all the books, papers, and accounts of the said George Farquhar, and a statement of the monies and other properties- received by them under the s/iid assignment. On the trial, he offered to read in evidence, the said assignment of George Farquhar to the plaintiffs, in order to shew that the defendant was one of the preferred creditors. The plaintiffs objected to this evidence, on the ground, that no notice of the matter to be offered in evidence, either as a set-off or otherwise, had been given according to the rule of Court. The Court sustained the objection, and overruled the evidence.</p>

<p>In an action on the case, brought against a magistrate to recover damages for alleged misconduct in his official capacity, a notice of the cause of action signed by the plaintiff and indorsed, "Notice to J. S., esq. Henry Read, living in Poplar lane, botween Third and Fourth streets," is defective, in not stating, that Henry Read was the agent of the plaintiff; and in not containing any thing from which it could be inferred that he was his agent having authority to receive a tender of amends.</p> <p>Query, Whether such notice would be sufficient without stating the city where Read resided?</p> <p>The object of the act of assembly is, to secure to the defendant an opportunity of making satisfaction without being subjected to a suit. The plaintiff may therefore sue out the writ himself, and in such case it is only necessary that the place of his abode should be given.</p>

In Error. ERROR to the District Court of the city and county jPhiladelphia, in which a bill of exceptions was returned with the record.

THIS was an ejectment brought by Margaret- yones as v * o «/ trustee in the will of Isaac Hozey, deceased, against Maffet and Mary his wife.

Ejectment. THE plaintiff, Eliza Pringle, was the widow, and the other plaintiffs were the children of John Pringle, deceased, who died intestate, under whom they claimed title to the premises for which this ejectment was brought. The cause was tried before Duncan, J., and a verdict taken for the plaintiffs, subject to the opinion of the Court, whether the widow could support an ejectment: and if she could not, whether judgment could be rendered for the children alone.

In ERROR. ERROR to theCourt of CommonPleas of Dauphin county. This was an appeal to the Court of Common Pleas, from judgment of a magistrate, in a suit brought before him, against George Stehley, by Edward Harp, for the use of Matthias Hollenback and Jacob Cist, trading under the firm of Hollenback & Cist. A statement was filed on the 25th March, 1817, for a demand on a single bill, drawn by the defendant in favour of Edward Harp, and assigned by him to Hollenback Ei?