Volume 5 — Watts & Sergeant's Pennsylvania Reports

<p>On sales made by a factor, the principal may recover the price due by the vendee, subject to the equities which the vendee has acquired by dealing with the agent as principal, or which the agent may have acquired from the course of dealing between him and the vendee.</p> <p>But this rule does not apply to a sale made by a factor here, for a principal in a foreign country, where exclusive credit is given to and by such factor; nor can a suit be sustained by the principal, except through and by the factor; and on the bankruptcy of both principal and factor, the assignee of the latter is entitled to the price of the goods sold.</p> <p>It seems, that where such factor is insolvent, a court of equity might compel payment of the debt to the principal, in a proper case.</p> <p>But such case does not exist where the principal has sued the factor for the value of the goods, and obtained an award of arbitrators for his claim, and prosecuted him to bankruptcy for the debt, and became himself assignee of the bankrupt, and no account appears of the assets received.</p> <p>An award of arbitrators chosen by the parties is conclusive of the controversy, and has the effect of changing the right to the money or property claimed, in the same manner as a judgment.</p> <p>The validity of the petitioning creditor’s debt, on which a commission of bankruptcy issued in England, cannot be disputed here by the bankrupt, on the ground that the petitioning creditor was an alien enemy, in a case where the debt was settled by an award of arbitrators without taking that objection, and the bankrupt afterwards failed in an action of trespass brought in England against the commissioners, and the chancellor, on application of the bankrupt, refused to supersede the commission, and a great lapse of time afterwards occurred.</p> <p>The rule in Pennsylvania is, that an involuntary transfer by proceeding in bankruptcy in a foreign state, of property here, will be regarded, except so far as it interferes with the claims of American creditors; and foreign assignees may sue here in the name of the bankrupt.</p> <p>But, queers, whether the exception embraces creditors of the bankrupt at the time of the suit, or only those at the time of the assignment?</p> <p>If an assignee of a bankrupt become bankrupt, and make an assignment as such, neither his assignees nor his personal representatives are entitled to a debt outstanding due to the original bankrupt; but it must go to a new assignee of the original bankrupt.</p> <p>If funds are due to an agent, and on his death they come into the hands of his administrators separate and distinct from the assets of his estate, and are claimed by an assignee in bankruptcy; queere, whether the Orphans’ Court has jurisdiction to compel their payment by the administrator, or the claimant must sue at common law ?</p>

This was an action of debt on an official bond, brought by the Commonwealth for the use of John Jones against Alexander M’Caraher, Mark Richards and Joseph S. Riley, in which the jury found the following special verdict: On the 27th day of February 1830, the said M’Caraher and the said Richards and Riley executed a bond to the Commonwealth of Pennsylvania in the sum of $4500, conditioned for the faithful performance, by said M’Caraher, of the duties of the office of…

Harris brought this action on the case against the plaintiffs in error, and obtained a verdict and judgment. The plaintiff offered in evidence certain depositions and releases; the admission of which was assigned for error. The case is fully stated in the opinion of the court. cited I Camp. 251; 8 Taunt. 454; 5 Carr.

THIS was an appeal from the decree of the Orphans’ Court for the city and county of Philadelphia, confirming a report of auditors disallowing the sum of $600, which the appellant, Keziah Tomlinson, claimed as one year’s interest on the sum of $10,000 bequeathed to her by the will of Abraham Hilyard, deceased— the material part of which was as follows: “ I give and bequeath unto my executors, &c., the sum of $10,000 in trust, to put and place the same out at interest on some…

Franklin against Philip Reitzel, to recover compensation for services as an attorney at law. The declaration contained two counts for work, labour and services rendered by the plaintiff to the defendant. The cause was referred to arbitrators, who awarded for the plaintiff $269.77 with costs, from which award the defendant appealed.

The circumstances of the case were as follows: The plaintiff was the owner of a house and lot of ground in Womelsdorf, Berks county, which he mortgaged on the 28th of April 1831, to “The Society of the United Brethren for propagating the gospel among the heathen,” to secure a bond to them of the same date, for the payment of $1500 on the 27th of May 1832. The interest was regularly paid, and on the 22d of February 1837 the whole amount of principal remained due and unpaid.

It appeared that Henrietta Disborough brought two actions on the case against Jacob S. Walton in the Common Pleas of Bucks county, to September term 1826, in which judgments were severally entered for want of an appearance on the 15th of September 1826, leaving blanks for the amount, which were filled up by agreement of the parties in 1829, with the several sums of $600 and $500.

This action was brought by Andrew C. Barclay and John M. Kennedy, trading as A. C. Barclay & Co., against Michael Tracy, to recover the amount of the loss sustained by the plaintiffs on the resale of certain grapes bought by the defendant at a former sale at auction.

Goundie 'against Henry Ebner, John J. Krause, John Rice and Jacob Fetzer, and a verdict and judgment rendered for the plaintiff. James Allen was the owner of a large tract of land in Lehigh county, of which tract that on which the trespass complained of was committed, was a part. On the 13th of December 1772 he granted a part of the tract to Martin Derr. The south boundary of the part thus granted was 5 feet north of the Little Lehigh.

This was an action of debt brought by Samuel Huntzinger against George Ludwick on a bond given by the defendant to the plaintiff dated 1st July 1830, conditioned for the payment of $1143.75 on the… Held: that on a bond to pay 4 per cent, till certain legatees came of age, they were entitled to 7 per cent, after that time. 1 JVott <§• M’Cord 67.

THESE were actions of ejectment brought, one by Lewis S. Coryell against John Urket, the other by the same plaintiff against Daniel Wasser, in the Common Pleas of Montgomery county, for two tracts of land on the Lehigh river, one in the warrantee name of John Christ, the other in the warrantee name of Betsy Rice. William Abbott defended as landlord and owner. Both actions were tried together.

Brittain and Samuel B. Brittain, trading under the firm of A. C. Brittain & Co., to recover the amount of two promissory notes for $700 each, made by John Hank payable to the order of the defendants at the Doylestown Bank, and endorsed by them; one dated April 14, 1837, at ninety days, the other May 17, 1837, at sixty, days.

This was an execution in the nature of a foreign attachment under the 35th section of the Act of 16th June 1836, relating to executions, in which Alexander T. Stewart and Edward E. Mitchell, trading as A. T. Stewart & Co. were plaintiffs, George W. M’Minn defendant, and Arthur Thatcher and William Stevens, garnishees.

Leibert against William Erwin, on a promissory note for $100 at six months, dated April 15th, 1839, drawn by the defendant to. George Coltman or order, and endorsed by George Coltman and William Coltman. The defendant filed the following affidavit of defence: “ William Erwin, the defendant, on oath, says that he has a just and legal defence to the whole of the plaintiff’s demand in the above action, the nature and particulars of which are as follows: 1.

This was an action on the case, brought by Thomas L, Woolston against Robert Smethurst, on a guaranty in writing given on the 29th of July 1839 by the defendant to the plaintiff for the performance of a contract dated July 24th 1839, made by John Bosler with the plaintiff to deliver to the latter at any time after the 1st of October 1839, on five days’ notice, for value received, 13,000 morus multicaulis trees. • On the trial, the plaintiff, after giving in evidence the…

THIS was an appeal by the administrators from a decree of the Orphans’ Court of Delaware county, in the matter of the account of Peter Worrall, guardian of Matilda Dilworth, late Worrall, as filed by Hannah Worrall and Walker Yarnall, administrators of said Peter Worrall, deceased. This appeal was argued by

THIS was an action of debt on a policy of insurance, brought by Manuel Eyre and Charles Massey, trading as Eyre & Massey, against The Marine Insurance Company of Philadelphia.* The case came on for trial before Rogers J. at JVisi Prius, where a verdict was rendered for the defendants.

THIS was an action of assumpsit brought in the District Court for the city and county of Philadelphia, by James Y. Humphreys against Hill, Fish & Abbe. The defendants were common carriers between New York and Philadelphia.

<p>Two tenants in common, owners of 12 acres of ground, through which they had dug a race or canal from the river Schuylkill and divided the property hy a boundary crossing the canal, reserving to each his heirs and assigns the common use and privilege of the canal or race as thereafter mentioned. By a subsequent clause they declared the same should be and remain for the common use and privilege of the respective parties, their heirs and assigns, tenants and occupiers of the respective lots of ground, through which the same passed, as a passage for scows or boats and rafts and for the introduction of the Schuylkill water from the dam for the use of the respective premises, but neither of them their heirs or assigns should at any time thereafter use more than one full equal half part of the water power of the said river, to which they previously were jointly entitled, nor would they, their heirs, &c. put or suffer or permit to he put thereon any boat, scow or raft of larger dimensions than would admit another of equal dimensions freely to pass it; and that neither of them their heirs, &c. should or would permit or suffer the water or water power, to which they were respectively entitled as aforesaid, to he used or applied otherwise than upon their respective lots, nor carry on or permit or suffer to he carried on upon the same lots the manufacture of gunpowder or any part of the process of the manufacture of that article.</p> <p>Held, 1. That this deed did not give to a party the right to carry coal along the canal and load it on his half of the premises for the supply of a steam-mill occupied hy him, situated on another and distinct lot in the neighbourhood.</p> <p>2. That the privilege of the canal under this partition was not a personal one, hut appurtenant to the property divided.</p> <p>3. That in a suit for a misuser of the privilege, it is no answer that the plaintiff was guilty of a similar misuser.</p>

<p>ERROR to the District Court for the city and county of Philadelphia, where a nonsuit had been ordered against the plaintiff on the trial, in an action on the case brought by James Gowen against The Philadelphia Exchange Company, for obstructing the plaintiff’s passage to and from his house into the highway, by erecting a wall against the door of the plaintiff’s house.</p> <p>The plaintiff was the owner of a three-story brick house and lot situated at the corner of Third and Dock streets, in the city of Philadelphia, 27 feet 6 inches in front on Third street, (its western boundary), and extending eastward 41 feet 3 inches on the southern boundary, and 46 feet eastward on Dock street, the northern boundary. It was on the eastern line of this lot, which was much narrower there than on the western line, that the door had been made and the wall erected against it. The ground adjacent to the door lay in front of the Exchange building, erected by the defendants in 1832. They had previously purchased all the block of ground and buildings bounding on Third, Dock and Walnut streets, except the plaintiff’s. When the Exchange was erected, the front on Dock street was thrown back, and spaces of the old lot in front left, which were paved, and used by passengers for footways. One of these was between the plaintiff’s house and the Exchange building, and led to the post-office and other offices situate in that building. The principal doors and windows of the post-office fronted Dock street and this pavement. After the erection of the Exchange, the plaintiff, in 1837, improved his eastern front at an expense of upwards of $2000, and placed a door there. In 1839, the defendants erected a wall which closed up the door, and rose up as high as the cornice of the plaintiff’s house. It was placed on the line of an old wall, and stood half on the plaintiff’s ground, and half on the defendants’. The plaintiff attempted to interrupt its erection, but, failing, brought this suit, contending that the paved spaces and passages were dedicated to public use as a highway, and that he had, therefore, a right of passage into and from his house along them.</p> <p>Errors assigned:</p> <p>1. The court erred in deciding that there was no evidence to go to the jury to sustain the plaintiff’s case.</p> <p>2. In ordering a nonsuit when there was evidence to go to the jury to sustain the plaintiff’s case.</p> <p>3. In deciding that, although the question of dedication or no dedication was one exclusively for the jury, there was no evidence whatever from which the fact of a dedication could be inferred.</p> <p>4. In deciding that there was no evidence of a dedication.</p> <p>referred to Ham. N. P. 192; 2 Stra. 1004; 1 Camp. 260; 11 East 376; 5 Taunt. 136; 3 Bingh. 147; 11 Wend. 499; 20 Wend. Ill; 4 JV. Hamp. 11; 2 Vern. 480; 3 Vern. 524; 6 Peters’ S. C. R. 431, 498; 10 lb. 262; 12 Wend. 172.</p> <p>cited 5 Taunt. 20, 126; 2 Ashm. 219 ; 2 Whart. 430; 8 Watts 219 ; 1 Yeates 167; 9 Serg. Sy Rawle 31.</p>

Brickenstein, warden of the Brethren’s Congregation at Bethlehem, brought an amicable action of ejectment sur mortgage, for so much of the following described lands and premises as were situate in Northampton county, against C. A. Luekenbach and C. C. Tombler, assignees of Joseph and James Leibert under a voluntary assignment for the benefit of creditors. The following case was stated for the opinion of the court, who rendered judgment for the plaintiffs.

THIS was a writ of error to the Court of Common Pleas of Northampton county, in an action of trespass for cutting timber trees, brought by John D. Bauman against Aaron Balliot, in which a verdict and… Held: as appears by the deeds which have been given in evidence, the plaintiff could not derive title through that same application, to any other lands.

This was an action of debt on an insolvent bond, by Robert A. Caldcleugh against Henry C. Carey and J. M. Sanderson, impleaded with Burd Patterson, who was not served with process. The bond was dated the 2d of October 1841, and was conditioned for the appearance of Burd Patterson at the next term of the Court of Common Pleas of Philadelphia county, to present his petition and take the benefit of the insolvent laws in the form prescribed by the Act of Assembly.

Olwine brought an action on the case against Charles Rinehart, and declared “ that whereas the plaintiff, on the 15th of March 1841, caused to be put up and exposed to sale by public auction, in lots, certain goods and chattels, upon and subject to the following terms and conditions of sale, viz., that the highest bidder should be the buyer; any person purchasing to the amount of eight dollars and under, should pay cash; and any person exceeding that sum should have nine…

W. Sanford and F. P. Sanford, co-partners under the firm of N. W. Sanford & Co., brought an action of assumpsit against Conrad Reakert on the following note drawn by the defendant’s wife: $85.29. Philadelphia, May 19th, 1834. Six months after date I promise to pay to the order of Job Baker, eighty-five dollars and twenty-nine cents, without defalcation, for value received. c, ~ Sarah Reakert. At the Commercial Bank, Phila. [Endorsed] 2132 Sarah Reakert 85.09 Nov. 19. comm.

That in the year 1818 the said Ann Norman was duly joined in lawful wedlock to Christopher Ottinger, the father of the said illegitimate child, who was called and known by the name of Christopher Norman. That on the 2d of April 1841, the Legislature of Pennsylvania passed an Act, which was approved of on the said day by the Governor, in the following words, to wit: “ Section 17.

THIS was an action brought by Stokes and others against Odenheimer, Shaw & Co. on a promissory note purporting to be drawn by the defendants, of whom John W. Odenheimer alone was served with the writ, and filed the following affidavit of defence : “ John W. Odenheimer being duly affirmed, says that he has a good defence to the whole of the plaintiff’s demand in the above action, the nature and character of which is as follows: That the note filed in this cause, was given…

& W. Detwiler against Richard Casselberry and William Anslee, on a bond given by them conditioned that Casselberry should take the benefit of the Insolvent Act. The following facts were agreed upon by the counsel at the trial, and the court below rendered judgment for the defendants : On the 21st of April 1840, Richard Casselberry being in custody on a bail-piece, presented his petition to the prothonotary for an order of discharge, to take the benefit of the insolvent laws.

THIS was a writ of error to the Court of Common Pleas of the county of Northampton, in which' the plaintiff below obtained a verdict and judgment. It was an action of indebitatus assumpsit in the Court of Common Pleas of Northampton county, brought by Daniel Kleckner against the county of Lehigh, for work and labour done in the erecting of a county bridge, in the county of Lehigh, for the commissioners of Lehigh county.

THIS was an ejectment brought in the Common Pleas of Northampton county to January term 1841, by Jacob T. Bunting against Reuben Young, Samuel Doak, and George Zeiegenfuss, impleaded with Daniel Bickel, in which a verdict and judgment were rendered in favour of the defendants below.

THIS was a case stated for the opinion of the court, as follows: Elizabeth Peters, of Baltimore, made her last will dated the 3d of June 1831, which was proved in Baltimore county, Maryland, on the 10th July 1837, she having died on the 6th of the same month, and letters testamentary upon an exemplification filed in the Register’s Office for the city and county of Philadelphia, were issued to Caspar Souder, the executor named in the will, on the 17th July 1837.

THIS was a certiorari to the Court of Quarter Sessions of Montgomery county, to bring up the proceedings in the case of a road in Whitemarsh and Springfield townships in that county, called the Churoh road.

THIS was a certiorari to the Court of Quarter Sessions of Northampton county, in the matter of the road leading from the Hellertown Road at Thomas Richards’ lane to the new road leading from South Easton to Freeman’s Bridge in Williams township.

THIS case, which was trespass quare clausum, fregit, and is reported in 6 Whart. 193, came before this court again upon a writ of error sued out by the defendants below to the District Court for the city and county of Philadelphia, where a verdict and judg1ment passed for the plaintiff. The title-deeds under which the defendants claimed the right to a- watercourse along an alley, as well as the parol evidence given on the trial, are there set out at length.

<p>ERROR to the District Court of the city and county of Philadelphia.</p> <p>This suit was brought by Edward S. Sayres against Louis Gomez Fereira, Gideon T. Snow and Henry T. Mansfield, who survived John T. Mansfield, late trading under the firm of L. G. Fereira & Mansfield. It was an action of assumpsit for work, labour and services as an agent in the defendants’ employ till the 21st of August 1839, and the following correspondence was given in evidence:</p> <p>Pernambuco, 10th March 1833.</p> <p>My dear sir,—I shall be much disappointed if you should be in the U. S. on the arrival of the vessel by which I forward this note, as I have been for some time past earnestly desirous of your arrival here, having a business to propose which I hope may be agreeable to you, to wit, the agency of my house (L. G. F. & M.) in the United States, as well as that of S. & M. of Bahia, who are equally desirous of profiting by your good services. I will not enter further on the subject at present, as I hope to see you here before many days. Should I be disappointed in this expectation, please inform if such an arrangement would be agreeable to you.</p> <p>We have been unable to dispose of the potatoes at any price; we have twice offered them at auction without any bidders appearing.</p> <p>I forward a statement of the market to your friends, Messrs Hollingsworth, by this conveyance.</p> <p>I remain, my dear sir, regardfully yours,</p> <p>John T. Mansfield.</p> <p>(Addressed) Edward S. Sayres, Esq.</p> <p>Per sch. Alonzo. Philadelphia.</p> <p>Pernambuco, 1st July 1833.</p> <p>Edward S. Sayres, Esq,</p> <p>My dear sir,—Your friend, Mr Hollingsworth, arrived on the 9th inst, and I feel much obliged for the introduction of a gentleman of such estimable character, and with whose acquaintance I was highly gratified. A few days after his arrival, he handed me your esteemed favour of the 15th of April, which gave me sincere pleasure. Our friend Snow sailed for the United States about a month since, and no doubt will have understood with you on the subject of the agency before this can come to hand. He was prepared to offer such terms as I feel fissured, my dear sir, you will consider highly liberal. It was our object to make them such, and is your object to make the arrangement a permanent one; but in the uncertainty of your accepting it, we considered it advisable to limit the time to one year, to obtain a knowledge of the character of the person employed, in the event of his being a stranger. I intended to have written you more at leisure, but have been much interrupted with business, my partner having left this for Bahia, as you will learn. Mr Snow will advise you of the state of the markets, &c., and'I shall have the pleasure of writing you more at large by a vessel to sail in a few days.</p> <p>With great regard and esteem, your sincere friend,</p> <p>John T. Mansfeld.</p> <p>Your potatoes, I am sorry to say, still remain on hand, although repeatedly offered at auction. I shall continue to use every exertion to dispose of them to the best advantage.</p> <p>(Addressed) Edward S; Sayres, Esq.</p> <p>Philadelphia.</p> <p>Boston, February 21, 1839.</p> <p>E. S. Sayres, Esq., Philadelphia.</p> <p>My dear sir,—My partners find myself have resolved on reducing the unnecessary expenses of our establishment at Pernambuco ; and as we consider the agency you hold principally on the footing it stands at present, I beg to state to you, and wish that to cease on the last of the present month; and you ’ll send me your account that I may pay it, receiving from you any document you may have belonging to my firm. I beg to assure you that the same friendly feelings that have existed between us for many years do now exist, and that if I can be of any service to you, you may freely command me; and beg you ’ll continue to believe me, my dear sir, yours truly, L. G. Fereira.</p> <p>Boston, March 4th 1839.</p> <p>Sir,—On Saturday I received your letter of the 27th February, with your account, in which you debit my house for services to the 31st of August next, you stating there was an understanding between you and Mr Snow that the agreement entered into between you and him was only to be discontinued at the expiration of any given year. Mr Snow never made known to me or to the house such an understanding; and, therefore, it being the custom everywhere that an agent, clerk, or any one who is paid a salary, at so much per annum, to be paid only to the time his services cease to be required, and not to the end of the year, unless there is an agreement to the contrary, which does not appear to exist in this case; being more extraordinary, besides, that since my arrival in this country, having received several letters from my partners in Pernambuco on the subject of putting an end to the agency as an unnecessary expense, nothing of such an understanding was ever mentioned to me; I, therefore, in justice to myself and partners, will only pay you to the 28th February last, according to which the balance due you will be $212.49. However, I will write to Mr Snow on the subject, and if he says that the case is as you state, I will without hesitation pay you the extra six months you demand, as not for that or a much larger amouut I would disavow even an understanding of a partner of mine on business that concerns me. It is true you did not accept the agency of a house in Bahia, in consequence of what Mr Mansfield told you, which he informs me amounted to this, that if you accepted that agency you should of course lose ours; and you, as was very natural, preferred keeping ours, which gave you $1500 per annum, to accepting one which was only to be $500 per annum. The query which forms the last part of your letter, after what I stated to you in my first letter, deserves no further answer from me.</p> <p>I am, &c. L. G. Fereira.</p> <p>The plaintiff then gave in evidence a printed circular signed Gideon T. Snow, dated August 1, 1833, viz.:</p> <p>Philadelphia, 1st August 1833.</p> <p>I beg leave to inform you that I have made an arrangement with Mr. Edward S. Sayres, of this city, to assume the agency of the two establishments of L. G. Fereira & Mansfield of Pernambuco, and Snow & Mansfield of Bahia. Mr. S. has spent much time in Brazil, having been for several years engaged in that trade; and as he will be constantly in possession of the latest advices from there, he will be enabled at all times to communicate much valuable information.</p> <p>His residence will be in this place. Recommending him to your acquaintance and correspondence, I shall feel highly gratified, should it lead to a mutually beneficial intercourse.</p> <p>I remain, very respectfully, your obedient servant,</p> <p>Gideon T. Snow.</p> <p>John Devereux, a witness for the plaintiff, testified as follows: “ John T. Mansfield, one of the firm of Fereira & Mansfield of Pernambuco, died in Boston on March 26th 1839. Mr Sayres (the plaintiff) was an agent of the firm here to drum up consignments and attend to the collecting: he did not make sales.” Cross-examined : “ I was not in Boston at the time of Mr Mansfield’s death. I know the fact from having seen the announcement in all the Boston newspapers, and from having received an official circular from the 'house in Pernambuco, announcing it to me. The firm went on in the same name. I have had conversations with ,Mr Sayres very shortly after its happening, in which we have spoken of Mr Mansfield’s death. I can’t say how long after, perhaps a couple of weeks, perhaps a few days. I don’t recollect Mr Sayres speaking of it on this day, or that day. I used to see Mr Sayres almost daily. I don’t know that Mr Sayres received any official notice of Mr Mansfield’s death. I know of Mansfield’s death also from my being now in correspondence with the house.”</p> <p>The Judge charged the jury:—Two questions have been discussed as arising upon the facts of this cause, 1: Whether the defendants, notwithstanding the letter of Mr Fereira, dated February 21, 1839, informing the plaintiff of this determination of the defendants that his services should cease on the last of that month, were not liable (unless the plaintiff acquiesced in their wishes) to pay the plaintiff to the end of the year on which he had entered prior to the receipt of this letter: and I instruct you, on that point, in the affirmative. And, 2. Whether the death of Mr Mansfield, one of the defendants, which took place, it is said, on the 26th of March 1839, would not, taken in connection with this letter, absolve the defendants from all liability for services of the plaintiff after that event ?—and I answer, that the death of Mr Mansfield would not produce such an effect.</p> <p>The defendants excepted to the charge, and assigned the following errors:</p> <p>1. The Judge erred in taking from the jury the question of fact whether the plaintiff had proved a hiring by the year.</p> <p>2. In charging the jury that the defendants could not put an end to the agency of the plaintiff, except upon the 1st of August of any year.</p> <p>3. In charging the jury that the death, of one of the defendants (partners) would not put an end to .the agency, of the plaintiff.</p> <p>4. In charging the jury that the death of one of the defendants, taken in connection with the letter of Mr Fereira, of February 21, 1839, would not put an end (o the agency of the plaintiff</p> <p>5. In taking the whole case from the jury.</p> <p>contended that the court erred in taking from the jury the question of agency: these questions of agency or not are always left to the jury. And when the subject is in writing consisting of letters on commercial matters and depends on the intentions of the parties and the reasonableness of the alleged contract, the question is for the jury. 5 Binn. 132; 1 Meas, Wellsby 506; 5 Bing. 132; (12 E. 6. L. 389). Without a special agreement the court could not construe it into a. hiring for a year.</p> <p>They further contended that the death of Mansfield dissolved the partnership and terminated the agency, and from that time terminated the plaintiff’s claim. Gow Part. 269; 1 Rawle 216. If it did not, the administrator was the person to sue. 1 Story’s Ag. 507.</p> <p>The defendant only intended to raise the question of law stated in .his letter, whether on a hiring for a year, the principal may discharge the agent at any time. It was not questioned below, that it was a hiring for a ye'ar. It was evidently a permanent arrangement, and an annual one, as appears by the letter of the 1st July. The Judge did not take the case from the jury, but only gave his opinion on the points discussed.</p> <p>Notwithstanding death, the partnership might, by agreement, continue. If it was dissolved, the surviving partners only could be sued at law, and if the firm went on with the business, as is here proved, they are bound: in the same manner if they were in the occupation of a house, the landlord could not terminate the lease. The obligation continued to be that of the survivors, and they are liable upon it. No authority is cited that supports the defendant’s position: but it has been determined that if the master of an apprentice dies, the executors continue bound. Separate actions could not be maintained for the portions due before and after the decease. If they were brought, the court would consolidate them.</p>

This was an action of partition for a tract of land in Chester county, brought by The Minister, Trustees, &c. of St. Peter’s Church, against The Minister, Trustees, &c. of Zion Church. There was no averment in thenarr. that, the plaintiffs were a corporation, nor did it set out the date or title of the Act incorporating them. The summons was not served upon the minister of Zion Church. The defendants requested the court to charge upon the following points: 1.

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was a scire facias quare éxecutio non upon a judgment entered upon a bond with warrant of attorney, accompanying a mortgage executed by Alexander L. Hodgdon, the defendant, to John Tustin, and assigned by him to John Naglee, the plaintiff,</p> <p>The defendant filed the following affidavit of defence:</p> <p>Alex. L. Hodgdon, the above defendant, being duly affiimed, says that he has a just and true defence to the plaintiff’s demand in this case, of the following nature and character, viz., that the writ above-mentioned is a scire facias to have execution of a judgment entered on a bond of defendant with warrant of attorney, given to John Tustin, and alleged by plaintiff to have been assigned to him. The bond was accompanied by a mortgage of real estate of defendant in the village of Richmond in this county. Said mortgage is not in plaintiff’s possession, or has been lost, mislaid or destroyed. To December term 1840, No. 1038, in this court, the above plaintiff sued out a scire facias upon said mortgage, and defendant thereupon filed an affidavit of defence, (to which he here begs leave to refer, and to make part of his defence in this case), alleging the loss of the mortgage, and the demand of deponent on plaintiff, before suit brought, of an indemnity against the consequences of said loss or destruction, and the refusal and neglect of plaintiff to tender or give any such indemnity. The said bond and mortgage are securities for the same debt. This court, after argument upon the affidavit in said mortgage suit, refused to enter judgment for the plaintiff, and sustained the affidavit of defence. Said cause is still pending. Deponent avers the same facts in this case, viz., the loss or destruction of the mortgage, and its not being in plaintiff’s possession: the demand upon plaintiff by deponent of indemnity, and the refusal by plaintiff to give it; all before this suit brought.</p> <p>The court rendered judgment in favour of the plaintiff for want of a sufficient affidavit of defence, which was now assigned for error.</p> <p>The case was argued by</p>

THIS was an appeal by Dr George Martin from the decree of the Court of Common Pleas of Montgomery county, refusing to allow him to take out of court certain moneys claimed by him as rent, which the sheriff had paid into court. Charles Cox obtained judgment against James Maxwell at February term 1841, and issued a fieri facias to May term 1841, which the sheriff levied on personal property of the defendant, being on premises which he had rented of Dr Martin.

THE plaintiff, William Tams, recovered judgment in this court on a scire facias against the defendant, Thomas Wardle, at June term 1842, for $3889.82, and issued a fieri facias to December 1842, which was returned levied, and the sheriff sold personal property to the amount of $1686.69. An alias fieri facias was then issued to March term 1843, which had not been returned.

<p>The board of directors of the Bank of the United States had power to assign its property and effects, in trust to pay certain preferred creditors, -without the authority or consent of its stockholders.</p> <p>Such power belongs to a corporation, like an individual, unless it be restrained by its charter or other legal provision.</p> <p>The insolvency of the bank at the time of such assignment does not impair its powers to assign for the benefit of preferred creditors.</p> <p>Schedules to an assignment not dated, referred to in the assignment as bearing evbn date with the assignment, will be taken to have been executed at the same time, and that might be shown by parol evidence if it were even necessary.</p> <p>It is not usual nor necessary for a witness making probate of a deed to sign the probate; the certificate of the magistrate is sufficient.</p> <p>A deed of assignment for the benefit of creditors is not rendered invalid by containing a reservation to the grantor of the surplus after paying the debts of the assignor provided for, such a reservation being implied by law, though not expressed.</p> <p>Though such assignment be made by a failing bank and the surplus is alleged to exceed by 50 per cent, the debts preferred, yet if it is assigned as a pledge with right of redemption, the other creditors may redeem, and thus avoid its being locked up for a long time from such creditors.</p> <p>A proviso in an assignment that the trust shall be closed within two years, and-if not then closed, the assignees shall within six months sell remaining assets sufficient to pay the debts preferred, but stipulating also for payment and distribution among the preferred creditors from time to time, as often as there shall be moneys in hand, does not postpone the liability of the assignees to account, or protect them from being cited after a year, and is therefore no objection to the validity of the assignment.</p> <p>An assignment, good when made, cannot be affected by an Act of Assembly afterwards passed, on the ground that it was then known to the assignor that such Act was about being passed by the Legislature.</p>

<p>ERROR to the Common Pleas of Montgomery county in which an action of ejectment was brought by Robert Evans against Sarah Haas and Hannah Iiepler, and a verdict and judgment were rendered for the plaintiff for a portion of a lot containing 18 acres and 141 perches. The facts of the case are sufficiently stated in the opinion of the court.</p> <p>The case was argued by</p>

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which the following claim had been filed: Benjamin Lehman, of Germantown, in the county of Philadelphia, lumber merchant, claim against Joseph R. Thomas, house carpenter, of Germantown, in the county of Philadelphia and township of Germantown, or any other person or persons concerned in erecting a two-story frame house, and two-story frame kitchen, and other buildings, situated on the…

This was a scire facias on a mechanic’s claim filed by Gilinger & Lair, plasterers, against Samuel Kulp, owner, and James Bond, contractor. The defendants pleaded payment with leave, &c., and a release. The plaintiffs read the claim and scire facias. The defendants gave no evidence. The plaintiffs asked the court to charge, 1.

THIS was an appeal by Joseph Leedom from the decree of the Court of Common Pleas of Montgomery county, on the distribution of moneys in the hands of Jonathan Jones, who on the 10th November 1841, had been appointed sequestrator to the Plymouth Railroad Company, on the petition of the appellant, Leedom.

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which an action of ejectment was brought by the defendants in error against the plaintiff in error, for a house and lot in the city of Philadelphia.

THIS was a motion for a rule to show cause why a mandamus should not issue to the District Court for the city and county of Philadelphia, to restore the relator, Daniel M’Laughlin, to be an attorney of that court, who had been struck from the rolls by an order of the court. M’Laughlin, in propria persona, contended, that there being no other specific remedy to attain the ends of justice, the course is by mandamus.

These were amicable actions on the case, respectively instituted by the Commonwealth against Cornelius C. Cuyler and William G. E. Agnew. In the first case the following facts were stated for the opinion of the court below: The defendant is the pastor of the Second Presbyterian Church in the city of Philadelphia, at the annual salary of $2000.

THIS was a writ of error to-the District Court for the city and county of Philadelphia.

THIS was a certiorari to the Court of Quarter Sessions of Philadelphia county, to which- the following petition was presented by Joseph Leman and twenty others: “ The petition of the undersigned freeholders, residing in the eastern section of Blocldey township, including West Philadelphia, Hamilton Village, Greenville and Powelton, and within the limits comprised in the accompanying plot or draft, bounded as therein described, viz.: Beginning at the mouth of Mill Creek on…

THIS was an action of ejectment for 195 acres of land, brought originally in the Common Pleas of Schuylkill county by the defendants in error, John H. Cresson, James Cresson and Joseph Cresson, against the plaintiff in error, Anthony F. Miller, in which a verdict and judgment were rendered in favour of the plaintiffs below in the Common Pleas of Montgomery county, to which the cause had been removed.

THIS was an action against Daniel Fitler, Esq., sheriff of the city and county of Philadelphia, for making a false return of nulla bona to a writ of fieri facias issued by the plaintiff, Maitland, on a judgment recovered by him in the District Court for the city and county of Philadelphia against Emmor Kimber, Jun. It appeared by the evidence that Kimber, a hatter, made an assignment of his goods, consisting of hats, &c. dated the 2d July 1841, to F. Samuels, who published…

This was an action of debt, brought by Jacob Clippinger against Christian Bumberger, to recover the purchase money of land sold by the plaintiff to the defendant, in which the following facts were, agreed upon and considered in the nature of a special verdict: On the 28th September 1842, Jacob Clippinger covenanted to sell and convey to Christian Bumberger, his heirs and assigns, two tracts or parcels of land; one tract partly in Cumberland and partly in Franklin counties,…

Samuel Hepbaugh, Esq. against Jacob Clippinger. This action was founded upon the following written agreement: “ On the condition of Samuel Hepbaugh succeeding before the Legislature of this State, in procuring a law authorizing myself and wife to sell the real estate devised to my wife and her children, under the will of Dr Alexander Stewart, deceased, and investing the money in our discretion for the benefit of our said children, I do hereby promise to pay the said Samuel…

Ashhurst and sons against Samuel Given. The plaintiffs obtained a judgment against the defendant, upon which they sued out a writ of execution and levied it upon the life estate of the defendant devised to him by the will of his father, James Given, deceased.

THIS was an appeal from the decree of the Orphans' Court of York county, making distribution of the estate of Andrew Cremer deceased. The balance in the hands of the executors,, as ascertained by an auditor, was $4173.71, of which sum. the distributive share of each heir was $321.05.

This was an action of debt originally brought by Jacob Albert and John R. Moore, trading in the name of Jacob Albert & Co., against Samuel Given and James Given, trading in the name of Samuel Given. During the pendency of the action, James Given died; and his executors, Samuel Given,Robert Given and Jacob Ritner, were voluntarily substituted as defendants.

<p>THIS was an appeal from the decree of the Orphans’ Court of York county. John Manifold in his lifetime became the surety in a note of his son Henry to Robert Smith, upon which a judgment was entered against both. He then died intestate, leaving his son Henry and several other children. On the 6th of February 1838, Robert M’Donald and wife obtained a judgment against Henry Manifold for |200: after which, the administrators of John Manifold sold the real estate of the intestate by an order of the Orphans’ Court for the payment of debts. Out of the proceeds of this sale the administrators paid the debt of Robert Smith: and after the payment of all the debts of the intestate there was a balance in their hands for distribution among the heirs. M’Donald and wife claimed by virtue of their lien upon the interest of Henry in his father’s land to receive the amount of their judgment out of his distributive share. This was resisted by the other parties in interest, on the ground that the liability of the father for his son, which was discharged by the administrators, exceeded the amount of his distributive shai-e. The court below (Durkee, President) decreed that M’Donald and wife were not entitled to any part of the fund.</p> <p>argued that M’Donald and wife’s judgment was a lien upon the share of the real estate which descended to the son upon the death of the father; and that the administrators were bound to discharge liens, that the purchaser might have a clear title. 1 Watts 309; 8 Serg. Rawle 315; 3 Watts 320.</p> <p>contended that M’Donald could not be in any better situation than the son himself; he stood but in the naturé of an assignee of his interest in his father’s estate, and that interest was subject to all the equities which existed between the estate and the heir. 2 Yeates 324.</p>

THIS was an appeal by Elijah Deckert from the decree of the Orphans’ Court of Berks county. The opinion of the court contains a full statement of the case. argued that the proceedings of the court did not exhibit any controversy about the fund; hence there was no necessity for an order or rule by which it was brought into court, nor was any such made.

WRIT OF ERROR to the Quarter Sessions of York county. The Commonwealth against Rufus Parr. This was an indictment for fornication and bastardy, in which the mother of the child thus testified: “ Rufus Parr is the father of my child; it is a girl; it was at Polly Parr’s where the child was begotten, in this county; it was born there. He forced me; he worked himself under me, and in that way forced me: I did not give my consent.

Samuel Carlisle against Herman Hockenbury, David W. Huling and others. Ejectment for a tract of land. The original title to the land in dispute was in Benjamin Say, and both parties claimed under him.

THIS was an appeal from the decree of the Court of Common Pleas of Centre county, appropriating the proceeds of the sale of the real estate of George S. Armstrong. On the 6th August 1831, Thomas Wilson obtained a judgment in the Common Pleas of Centre county against Clement Beckwith, whose only real estate in the county at that time was lot No. 114, which he had purchased at sheriff’s sale on the 17th March 1827.

This was an action of assumpsit, brought by Susan Swires, alias Susan Parsons, against the administrators of Isaac Parsons, deceased, to recover compensation for work, labour and service performed for the intestate in his lifetime. The proof was, that the plaintiff had lived for many years with the intestate, and performed the labour and service as alleged; and the witnesses testified that she lived with him as his wife, and was reputed as such.

This was an action of ejectment by the executors of William Forster, deceased, against William M’Divit, for 150 acres of land. The points argued, in this court, .are fully stated in the opinion. argued that any improvement and cultivation upon the land, whether by the owner of an adjoining survey or not, exempts the land from sale as unseated ; and on this point cited 1 Watts 504; 4 Watts 366; 7 Watts 37; 3 Watts Serg. 238.

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>John Null obtained a judgment against William Adams before a justice of the peace, from which Adams appealed, and entered into a recognizance in the old form to prosecute his appeal with effect. The court below striick off the appeal, on the ground that no such bond or recognizance was given as is required by the 33d section of the Act of 12th February 1842; and that it was not now practicable to give such an obligation, for the defendant may have disposed of the property which he then had; and because on the hearing of the motion he did not offer such an one.</p> <p>argued that the defendant should first be called upon by a rule to perfect his appeal, and upon failure so to do the court might strike it off, but not otherwise. 16 Serg. ¿C Rawle 349; 2 Penn. Rep. 431.</p> <p>argued that such were the requisitions of the Act of 1842, that its terms could not be complied with at any time after the appeal was taken; for the appellee was entitled to the security which the value of all the goods of the appellant at that time afforded; and if the defendant’s property has since been sold on execution, a bond now given would be no security at all.</p>

<p>it jg incompetent to a defendant in an action of slander to give evidence, in mitigation of damages, of facts and circumstances which induced him to suppose the charge true at the time it was made, if such facts and circumstances tend to prove the charge, or form a link in the chain of circumstances to establish a justification, even though he expressly disavows a justification.</p> <p>In an action of slander against a husband and wife for words spoken by the wife, it is not competent for the defendant to prove that circumstances relating to the plaintiff’s conduct were communicated to the husband before the slanderous words were uttered. (</p> <p>When, in an action of slander, the defendant’s evidence casts an imputation on the character of the plaintiff for honesty, it may be rebutted by testimony as to his general good character.</p>

<p>ERROR to the Common Pleas of Cumberland county.</p> <p>Jacob Byerly, for the use of Henry Tiffany, against William M. Louden. This was an action of debt founded upon the sealed note of the defendant and others in the following words:—</p> <p>Kingstown, August 1st 1837.</p> <p>“We jointly and severally promise to pay to Jacob Byerly or order the sum of five hundred dollars on the first day of February 1839, with lawful interest for the same from this date, without defalcation, for value received. Witness our hands and seals this day.”</p> <p>This note was assigned to Tiffany on the 7th January 1838, and of which Louden had notice 'on the 7th October 1838. The defendant became the owner of several notes and claims against Byerly before the 7th‘January 1838, and between that date and the 7th October 1838, which he proposed to set-off in this action: but the court below was of opinion that the words “ without defalcation” amounted to an agreement on the part of the defendant that he would not make any set-off to the note, and directed the jury to find a verdict for the whole amount of the plaintiff’s claim.</p> <p>Before the Act of 1797, the right of set-off existed in every case, and unless there be some provision there which affects this case, then clearly, the court below erred. That statute was passed for the purpose of giving form to a negotiable instrument which should not be subject to set-off in the hand of an endorsee; but the note here sued upon is not of that form; and it has no other character than that which belongs to a specialty, and is subject to set-off, until the payer has notice of the assignment. 4 Serg. fy Rawle 175; 5 Pick. 512 ; 3 Whart. 275; 1 Serg. fy Rawle 180; 15 Wend. 51; 11 Wend. 504.</p> <p>argued that the right to set-off was as much the subject of control as any other stipulation between the parties; and if the defendant has contracted in this case to waive the right which he otherwise would have, he is as much bound by it as he would be by his contract on any other subject. 14 Serg. Sy Rawle 127; 2 Penn. Rep. 245; 9 Serg. Rawle 137,193; 12 Serg. Sf Rawle 265; 3 Whart. 275.</p>

<p>If a cause be referred to arbitrators, and an award made in favour of the defendant for a certain sum, and the plaintiff appeals, and afterwards, by leave of the court, suffers a nonsuit, the award is thereby defeated, and is irrecoverable by scire facias against the plaintiff.</p>

<p>The debts of a decedent cease to he a lien on his real estate after five years, although, in his life time, he made a voluntary conveyance of it for the purpose of defrauding his creditors.</p>

This was an action of assumpsit for-goods sold and delivered by John Rush against Keim, Whitaker & Co. The plaintiff having been sworn, said: “ This is my book of original entries. These entries are in my handwriting, made- at the time they bear date. I had | my forge in Hereford township, and lived there. The defendants lived in Reading, and had their rolling-mill there, about 21 miles off. I made the entries at the forge.

<p>ERROR to the Common Pleas of Berks county.</p> <p>Elizabeth Brobst, administratrix of George Brobst, instituted .an' action of assumpsit for money had and received against the Bank of Pennsylvania, in the county of Berks. The bank is located in the city of Philadelphia, and by its charter has power to establish offices of discount at several places throughout the State, and among others, at the county of Berks, where it has such an office for the transaction of business, and where the alleged contract and assumpsit were made. The summons was served upon the cashier of the office in Berks county; and on motion, the court below (Banks, President) quashed the service.</p> <p>The process, in this case, was served upon the cashier of the branch at Reading; and he is an officer designated by the Act of Assembly upon whom process may be served. 1 Penn.Rep. 161; 8 Serg. d¡- Rawle 520. But a corporation is suable where the contract is made. Angelí on Corporations 148 ; 3 Cow. 684; 6 Conn. Rep. 428, 435; 2 Watts 271.</p> <p>contended that process cannot be served out of the district where the artificial body exists; and cited 1 Tidd’s Prac. 140; 16 Johns. 7.</p>

This was an action on the case brought by George Hoffman against S. Alexander.

This was an indictment against Frederick Boyer and John Sampson for arson, the former as principal and the latter as accessary before the fact. The first count charged Frederick Boyer with feloniously burning the barn of Richard C. Woods, the same having hay and grain therein, contrary to the Act of Assembly, and against the peace and dignity of the Commonwealth.

MANDAMUS. This case originated upon the petition of David Leech, James M. Davis, James Steel & Co., and E. G. Dutilh & Co., who complained that the respondents, John B. Butler, Levi Reynolds, and William Overfield, in December 1842, entered into a contract with Cameron and Wilson, by which there was secured to them the exclusive privilege of carrying passengers on the Philadelphia and Columbia Railroad, in passenger cars, which, it was alleged, they were unauthorized and it…

THIS was an appeal by John M’Curdy, eldest son of John M’Curdy the elder, deceased, from the decrees of the Orphans’ Court of York county, in refusing to order the real estate of said deceased to the appellant, and in ordering the same to be sold for the purpose of paying a debt due the administrator. John M’Curdy the elder died intestate in 1827. Soon after his death, on the 3d August 1827, letters of administration on his estate were duly granted to Alexander M’Curdy.

<p>An administrator who voluntarily pays money on account of a claim against the estate which he represents, is not thereby rendered an incompetent witness in an issue between the claimant and another creditor of the estate to try the validity of the claim.</p> <p>In an issue between a father and a creditor of his deceased son, to try whether a sum of money given by the father to the son was a loan or an advancement, it is competent for the latter to prove that the son worked for the father after he arrived at full age.</p> <p>It is also competent in such case to prove that the father had made advancements to his other children.</p>

<p>THE Commonwealth ex relatione Hon. Samuel Hepburn against Job Mann, Esq., State treasurer. This was a mandamus issued by this court to Job Mann, Esq., State treasurer, directing him to pay to the Hon. Samuel Hepburn, President Judge of the Ninth Judicial District, the amount of his salary fixed by the provisions of the Act 19th July 1839, or show cause to the contrary.</p> <p>By the 5th art. 2d sec. of the Constitution of 1790, it is thus provided: “ The Judges of the Supreme Court and the Presidents of the several courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation to be fixed by law, which shall not be diminished during their continuance in office, but they shall receive no fees or perquisites of office nor hold any other office of profit under the Commonwealth.” This is the' language also of the amended Constitution of 1838. By the Act of 13th April 1791, the salary of the President Judges was fixed at £500. By the Act of 4th April 1796, the salary was increased to $1600. By the Act of 19th July 1839, the salary was increased to $2000. By the Act of 14th January 1843, the Act of 1839 was repealed. On the 5th March 1839, the relator, Hon. Samuel Hepburn, was appointed.</p> <p>The respondent in his answer assigned for causes why he refused to pay the salary fixed by the Act of the 19th July 1839. 1. That the Act was repealed by the Act of the 14th January 1843. 2. That by the Act of the 4th May 1841, there was assessed upon the salaries of Judges a tax of two per cent., which the State treasurer by the provisions of the law was directed to retain. To this answer the relator demurred; which gave rise to the question whether the Acts of the 18th July 1839, and 14th May 1841, as interpreted by the State treasurer, were constitutional.</p>

<p>' ERROR to the Common Pleas of Perry county.</p> <p>This was an action of ejectment brought by Samuel Albright against John .Hunter and James Hunter, for 200 acres of land, in which the defendants took defence for 70 acres. The plaintiff’s title was a warrant to John Little of the 28th December 1774, for 200 acres,-upon which a survey was made on the 12th March 1775, and duly returned. The land was taxed in the name of William Rawle for the years 1834-5 as unseated, and sold on the 11th June 1838 to Samuel Albright, the plaintiff.</p> <p>The defendants’ title was a warrant to Michael Capp of the 7th June 1785, for 100 acres, upon which a survey was made on the 27th October 1785, and duly returned. This survey interfered with and included'70 acres of the former survey of John Little— and this was the land in dispute. The tract in the name of Michael Capp was assessed with taxes for the years 1821-2-3, as unseated, and on the 14th October 1830 was sold by the treasurer and purchased by the commissioners, who, on the 11th June 1838 sold the same to John Thomas, who conveyed to the defendants. -</p> <p>The court below (Hepburn, President,) instructed the jury, that the plaintiff was entitled to recover.</p> <p>argued, that the sale of the land in 1830 to the commissioners, vested a good title without regard to the name in which it was sold, which, after the lapse of five years became absolute:—.that it was not subject to taxation in 1834-5, while it was.the property of the county, and, therefore, the plaintiff’s title was void. ' 4 Watts df Serg. 251 ; 10 Watts 208; 1 Watts Jp Serg. 174.</p> <p>contended, that the sale to the commissioners vested-in the county the'title to so much land only as was legally appropriated -upon the warrant and survey of Capp, for no greater quantity'of land could be assessed, taxed or sold than was legally covered by it; and it was perfectly competent for the commissioners to assess a tax and sell the tract surveyed upon the Little warrant, thereby restricting their own purchase to the quantity which legitimately belonged to it. Both sales are good, and confer title upon the respective purchasers to an extent measured by the rights of the original owners or claimants. The plaintiff, therefore, claiming under the elder title, was entitled to recover. But, even if the sale to the commissioners gave title to the whole survey in the name of Capp, they having subsequently assessed a tax upon and sold the tract surveyed in the name of Little, would be estopped from asserting title to any part of the- land embraced within it.</p>

THIS was an appeal from the decree of the Court of Common Pleas of York county, distributing the proceeds of the sale of the personal property of Henry Wolf. Michael Wolf being the owner of a farm, leased it to his son Henry Wolf for one year from the 2d April 1839, for the rent of $575, no time being fixed by the lease for the payment of the rent.

<p>CERTIORARI to the Quarter Sessions of Mifflin county.</p> <p>This was an appeal from the order of two justices removing a pauper from the Borough of M’Veytown to the Township of Union. After the cause was argued upon its merits in the court below, the appellee moved to quash the order of removal on the ground that William J. M’Coy, one of the justices who made the order of removal, was a resident of the borough of M’Veytown. This was opposed on the ground that the Act of 20th March 1810, sect. 4, cured all defects in matters of form or substance in the proceedings of the justices.</p> <p>Wilson (President). The objection here is neither to the matter of form or substance of the proceedings, but to the jurisdiction of the justices, which can be taken advantage of in any stage before a final decree. Let the proceeding be quashed.</p> <p>cited 5 Binn. 85 ; 3 Watts S¡- Serg. 548.</p>

<p>ERROR to the Common Pleas of Berks county.</p> <p>The facts of the case and points are fully stated in the opinion of this court.</p> <p>argued that the assignment of the claim was an implied warranty that the debt was due, and therefore the witness was interested until he was released from it; which he was not by the one in evidence. 5 Whart. 446; 2 Watts 121; 8 Watts 46; 5 Watts 80; 3 Watts Sf Serg. 55; 9 Watts 183.</p> <p>contended that the witness had disposed of all interest before the institution of the suit, and that the release in evidence discharged him from any supposed liability on his implied warranty. 1 Rawle 433; 3 Binn. 306.</p>

<p>ERROR to the Common Pleas of Lebanon county.</p> <p>George Price against Jacob Seibert. This was an action against the defendant for a malicious prosecution of the plaintiff for perjury. The court thus instructed the jury:</p> <p>The jury is referred to the testimony of Ulrich and Stine, who were present when the plaintiff was examined as a witness before the jury in the matter of lunacy. And if the jury are satisfied from the evidence, that upon that occasion George Price, the plaintiff, did swear that William Seibert was called and examined as a witness for his brother Jacob in the suit between him and Peter Shoch, and persisted in this being the fact according to the testimony of Ulrich, and if you are satisfied that it was false and not the fact, the court instruct you that Jacob Seibert had probable, grounds for instituting the criminal proceedings for perjury against George Price, and Jacob Seibert is not answerable in damages in the action for a malicious prosecution, although he did not succeed in convicting George Price of the charge. On the other hand, if the jury are satisfied that George Price testified before the inquest, that William Seibert was a witness in the suit between Peter Shoch and Jacob Seibert, but that he could not say which party called on him, or for which party he was a witness, according to the evidence of Samuel Lutz, a witness called by the plaintiff on this trial, and who was also present and heard George Price give evidence before the jury of inquiry; or if the jury are satisfied that George Price at first testified that William was a witness for his brother Jacob, and on being interrogated, he explained by saying he did not know for which party he was a witness, and only knew he was a witness in that case; then the court instruct you, that Jacob Seibert had no probable cause for prosecuting Price for perjury, and is answerable to him in this action for a malicious prosecution, and malice may be inferred. • In actions for malicious prosecutions, it is not sufficient that it is established to the satisfaction of the jury that the criminal prosecution was carried on with malice, but it must also appear, that there was a want of probable cause: if both these facts are not made out in this case, the plaintiff is not entitled to recover.</p> <p>The plaintiff proposed to send out with the jury the affidavit (or information) made by Jacob Seibert before the magistrate when he instituted the proceedings against the plaintiff for perjury; to which the defendant objected, but the court overruled the objection and sealed an exception.</p> <p>contended that the court below had put the causé upon an erroneous ground to the jury. That the question to be submitted, was the defendant’s belief of the truth of the charge he made. Bull. JY. P. 14; 2 P. A. Browne 55; 8 Cow. 144; 4 Watts Sp Serg. 201: 2 Esp. 529; Hammond’s JY. P. 273; 1 Term Rep. 545; 3 Esp. Rep. 7; 2 Stark. Ev. 911; note a.</p> <p>cited 2 Wend. 424.</p>

<p>The condition-of a bond of indemnity “to save harmless and indemnify against all claims of A,” is broken whenever the claim is made and .the obligee is under the necessity of paying it, which he may do without waiting for an action to be brought against him.</p> <p>On a bond of indemnity to A, without naming his executor or administrator, if he die before any breach of the condition, the administrator may maintain an action for a breach happening after his death.</p> <p>If one entitled to letters of administration pay a claim against an intestate’s estate, and afterwards take out letters, he may maintain an action on a bond given to the intestate to indemnify him against the claim thus paid: for the benefit of the estate and to support the right, the law makes the letters relate back to the death of the intestate, making the intervening acts done by the administrator valid and binding.</p>

The Farmers’ and Mechanics’ Bank against William Barbour and John M. Woodburn. This was an action of ejectment for 20 acres of land called the Boring-Mill tract. The plaintiffs gave in evidence a warrant to George Ege, of the 28th October 1828, for 30 acres, calling for interest from 1st July 1803, and proved that he and those claiming under him had possession of the land from that time.

This was an action of ejectment by George Mitchell against Charles Bratton and James Bratton, for a tract of land in which the plaintiff’s title was founded upon an assessment and sale of the land as unseated, in 1822, by the treasurer of Mifflin county, as the property of Frederick Lazarus. The only point in the-cause of any consequence arose out of the following instruction of the court below to the jury i Woodward (President).

This was an action for an escape by John Garrison against Joseph Shuler, sheriff.

<p>ERROR to. the Common Pleas of Franklin county.</p> <p>The Commonwealth for the use of Shover & Harbaugh against Funk and others. ■ This was an action of debt upon a constable’s bond; and to support it,.the plaintiffs gave in evidence a judgment in their favour upon the docket of a justice for $93.85 against Samuel Fisher and John P. Baker, and an execution issued thereupon and placed in the hand of Funk, the present defendant, then a constable, for collection. In due time the constable returned the execution “ with prothonotary’s discharge of defendant Baker, he having filed a bond,” &c..</p> <p>The plaintiffs having given evidence of these facts, the defendants offered to prove by the justice that “when the constable handed him the execution, he objected to taking it, and thought it an insufficient.return, unexplained, having a service only on Baker; that the constable replied,' ‘ would he have him to arrest a sick man and take him out of his bed to prison?’ that he swore the constable, who on his oath stated that Fisher was sick, and not able to be removed, and that he deemed that return sufficient in law.” The plaintiffs objected, to this evidence, but the court overruled the objection and sealed an exception.</p> <p>The court below charged the jury, that it was not essential to the validity of a constable^ return that it should be in writing; that the reasons for his return were such as justified the justice of the peace in accepting it, and that this was the subject of parol proof. A verdict and. judgment were rendered for the defendant.</p> <p>argued that it was an indispensable principle in the administration of justice, that all judicial proceedings should be in writing; and if not reduced to writing, they are not the subject of parol proof. Wats, on Sheriff 67, 68; Act of 1810, sect. 12.</p> <p>cited 2 Rawle 147; 2 Watts fy Serg. 229.</p>

<p>One sued before a justice of the peace must set-off any claim not exceeding $100, which he may have against the plaintiff, or be for ever barred from its recovery elsewhere.</p> <p>Money collected upon an execution by a constable, cannot be recovered back again from the officer upon the allegation of its having been paid a second time.</p>

Joseph Mifflin, Robert C. Hays and David H. Culbertson, were indicted for having conspired to effect the escape of Jane M. Nevin, an infant, and for having, in pursuance of such conspiracy, actually assisted her to escape in the night, with a view to her marriage with Charles M. Reynolds.

<p>ERROR to the Common Pleas of Dauphin county.</p> <p>Sophia Inglis and others, the widow and heirs at law of George Cooper, deceased,' against Franklin Wright and Henry M. Bayard. This was an action of ejectment, in which both parties claimed under George Cooper, in whom the original title was. The plaintiffs having given this title in evidence, the defendants relied upon the evidence of an assessment and sale of the land in the' name of George Cooper for taxes, made to Samuel Shoch, Esq., who sold to Alexander Cardón, from whom they purchased.</p> <p>The plaintiffs’ objections to this title arose out of these facts:— There were two tracts of land assessed in the name of George Cooper, one for taxes amounting to $2.34, and the other amounting to $15.52. In transferring them from the assessment books to the sale book of the treasurer, the amounts were transposed, so that the land in dispute, which had been assessed with $15.52, was sold for the taxes of $2.34; the amount bid was $6, and the surplus, after adding $2.87 of costs, was 79 cents, for which the purchaser gave his bond. It also appeared, that the sale was made on the 16th June 1824, the deed executed and acknowledged 23d August 1824, the surplus bond was dated the 25th May 1826, and was produced in court by the treasurer, never having been filed in the prothonotary’s office. And the treasurer testified, that he never filed the bonds he took, and as to this one, he asked Mr Shoch, the purchaser, whether he should file it, and he replied, that it was not worth while. On the 4th May 1829, Samuel Shoch, Esq., conveyed to Alexander Cardón, who in 1833 went into actual possession of the land and made valuable improvements upon it to the value of $1020. It was sold as his property by the sheriff to the present defendants.</p> <p>The positions then taken by the defendants were: 1. That by virtue of the 3d section of the Act of 1804, the actual possession of the land by the purchaser under the treasurer’s deed for five years, gave him an indefeasible title. 2. That if the plaintiffs were entitled to recover, the defendants should be allowed for the value of their improvements.</p> <p>To this the plaintiffs replied: 1. That the Act of 1804 was repealed by the Act of 1815, and therefoi-e, the limitation contained in the 3d section could not avail the defendants. 2. That the sale by the treasurer was void, because it was not sold for a tax actually assessed upon the land:—because a surplus bond was not given at the time the treasurer’s title was made: — and, because, at the instance and request of the purchaser, it was never filed, as the law requires. 3. That although the defendants may be entitled to an allowance for the value of their improvements, yet the plaintiffs were entitled to credit for the mesne profits of the land while in the defendants’ possession.</p> <p>The court below instructed the jury, that .the treasurer’s sale of the land in dispute for the payment of a tax which had not been assessed upon it, but upon another, was fatal to the defendants’ title; and that they were not protected by the limitation contained in the 3d section of the Act of 1804. That if the title were otherwise good, it would not be affected by the time at which it was given, nor by the fact that it was not filed: that the defendants were entitled to an allowance for the value of their improvements without regard to the mesne profits of the land, which must be the subject of consideration in another action between the parties. The jury found a verdict for the plaintiffs, and fixed the value of the improvements at $1020. The plaintiffs and defendants each excepted to this opinion, and each sued out a writ of error.</p> <p>argued, that the transposition of the amounts of the taxes was but an accidental irregularity occasioned by the negligence of the clerk: that the original assessment was perfect, and that the plaintiffs could not in the face of the curative Act of 1816, avail themselves of this irregularity, when the sale was occasioned by their default in not paying their dues to the county; and that the limitation contained in the 3d section ofthe Act of 1804, was a perfect protection after the lapse of five years; and on this point cited 3 Watts Serg. 510; 4 Watts $ Serg. 167, 218.</p> <p>argued, that it was essential to the validity of a treasurer’s title, that the land should have been sold for a tax previously assessed upon the land, either regularly or irregularly; but here it is conceded, that this land was sold for a tax which had been assessed upon an entirely different tract of land. The land was sold for $6, when the taxes actually due amounted to $15.52; and thus, the owner is deprived of his land, and the tax actually due upon it remains unpaid. The treasurer had no right to sell the land for a sum less than the actual amount of taxes and costs due upon it. Nor were the defendants entitled to an allowance for improvements. 2 Watts Sf Serg. 107, 240 ; 4 Watts Sf Serg. 36; 6 Walls 435.</p>

<p>A bill in chancery, or an action of account render, is the only remedy by which one partner can recover the amount due to him by the firm; but there can be no . recovery in any form of action in which one of the firm is both plaintiff and defendant.</p>

THIS was an appeal by Jacob Hauer from the decree of the District Court of the city and county of Lancaster. ■Leonard Neigley, Jun., executed a bond to Jacob Hauer, with a warrant of attorney to confess judgment, dated the 25th January 1842, in the penal sum of $3070, conditioned for the payment of $1535 in ten days with interest.

J. & J. P. Steiner against Abraham Hesser. This was an action of assumpsit founded upon the promise of the defendant to pay the debts of his son, James B. Hesser. The plaintiffs gave in evidence the negotiable note of James B. Hesser to the plaintiffs for $122.55, payable at the Exchange Bank of Pittsburgh in June 1839, and then called a witness who testified as follows:—“ In May 1839, Abraham Hesser came to Philadelphia. I had written him a letter to come down.

Charles Worrall against William Logan Fisher. This was an action of covenant, in which the plaintiff, the vendor, sought to recover a judgment in execution specifically of an agreement for the sale of a tract of land, which is thus set forth in his declaration : William Logan Fisher was summoned to answer Charles Worrall of a plea that he hold to him the covenants between them made, according to the force, form and effect of certain articles of agreement between them made,…

pnTirvo ) the Common Pleas of Adams county. C tharine i Miller against Joseph E. Hemler, executor of Henry tt rWet ised. This action was founded upon the joint and i ’=poWl note of Peter Hemler, Henry Hemler and Nicholas seyera ^ payment of $150 to the plaintiff.

The Commonwealth for the use of Christian Bachman against David Miller, late sheriff of Lancaster county, with notice to the terre-tenants. The following case was stated for-the opinion of the court below, with a right to either party to take a writ of error.

The exception by the heir at law was, that the accountant had not charged herself with the sum of #5000 cash on hand at the death of the intestate.

The Commonwealth for the use of George Keller, administrator of Ann Beyer, deceased, against John Reesor and Christian Reesor. This was an action of debt upon a recognizance in the Orphans’ Court. On the 16th December 1839, a petition was presented for the purpose of obtaining a partition or valuation of the estate of Christian Reesor, deceased, and an inquest was thereupon awarded.

William Muirhead against William Kirkpatrick. This was an action of debt founded on a promissory note not exceeding $372.44. The defendant pleaded payment and set-off. On- the trial the defendant gave in evidence an account of Ephraim Kirkpatrick against the plaintiff, which had been assigned to William Kirkpatrick the defendant before suit brought, amounting to $192.50.

<p>An assignment of a cause of action, which is merely colourable, shall not devest the title of the plaintiff so as to make him a competent witness ; whatever its legal effect between the parties may be; and every assignment is to be deemed colourable, when no other motive for it can be made to appear.</p>

James A. Cummings against John Klapp. This case came into court by appeal from the judgment of a justice. Cummings, the plaintiff, obtained a judgment before a justice against Henry Charles for $72.21, upon which he issued an execution directed “ to the constable of Mifflinburg,” which was placed in the hand of constable Haus.

<p>APPEAL from the decree of the Orphans’ Court of Union county.</p> <p>Robert Candor, as the administrator of his father, Josias Candor’s estate, presented his account to the Orphans’ Court, in which he prayed to be allowed a credit of $1550 for work, labour and services rendered to his father in his lifetime, while he was living with him as a member of his family and after he arrived at full age. This was objected to by the other heirs, and the court referred the subject to an auditor, who on this subject made the following report:</p> <p>The exception (on credit side) is, that “ the credit for $1550, for work done from January 1st 1825 to July 1st 1840, fifteen years and six months, ought not to be allowed.” Under this exception, it was contended in the first place, that the credit was wrong in toto and could not be sustained in law, and in the second place, that if the administrator was entitled to any credit at all for his services as stated, $1550 was greatly too much. If the credit is proper in itself, I am clearly of opinion that it is not too high. With reference to this exception, as well as the ones last disposed of, the neighbours who knew the services and the circumstances under which they were rendered were called, and swore that they believed it nothing more than a reasonable compensation. The next inquiry then is, can the credit be sustained at all ? I will briefly refer to the evidence bearing on this point. Charlotte C. Strawbridge swore, “ that her father had not attended to any business for upwards of fifteen or twenty years before his death: that Robert attended to his business generally; that her father at one time was paying some money to her brother Thomas, when the witness observed to him, that he was still giving money to the rest and none to Robert, who, she thought, deserved it most; that her father then replied, that Robert was at home and did not need money, but if he were going off, he would give him some too; that she had further remarked, that Robert was doing a great deal, managing for the family, and that her father then replied, ‘ he shall be paid, dr he may lay in for wages ; that he should be compensated,’ or words to that amount; that this was about ten years ago.” John Koch swears, “ that in a conversation he had with the intestate in June 1839, he had observed to him that Robert attended to his business; that he attended to nothing himself any more, except some little notions about the shop.” It was stated by several other witnesses that Robert had the principal management of the farm for a number of years before his father’s death, and that his father recognised his acts; to say nothing of what Robert himself stated with regard to this matter upon a cross-examination, having been called by the exceptor himself. Robert, according to the testimony of the witnesses, managed the farm well, and his father recognised everything he did. According to the testimony of Mrs Strawbridge, (and there was no reason assigned why she should not be credited, for she swore directly in opposition to her interest), the old man expressly stated, that Robert should be paid in some way. There was no evidence that he ever was “ paid anything on account of his services.” Now the only question it seems to me is, when was this compensation to be made ? and does the Statute of Limitations not interpose 1 It appears to me, that the only legitimate construction that can be put on this promise of the old man is, that the compensation was not to be made until after his death. If this be the proper construction, then the statute would be out of the question. The exception is therefore not sustained.</p> <p>Exception was taken in court to this report, and upon argument, the court below confirmed it.</p> <p>cited 3 Rawle 243; 7 Watts 46; 9 Watts 380; 10 Watts 172; 6 Watts 219,352.</p> <p>cited 3 Johns. 301; 14 Johns. 379; 4 Yeates 358.</p>

George Reed, administrator of Matilda Reed, against the executors of John Buckley, deceased.

This was an action on the case by John T. Davis against A. B. Wilson and others, founded upon the following agreement: Memorandum of agreement made this 25th day of July 1840, between A. B. Wilson, C. B. Bowman, Daniel Driesbach, John Bowman, A. B. Shuman, Isaiah T. Beach, John Connor, Thomas M’Nair & Co., of the one part, and J. T. Davis of the other part, to wit, the said A. B. Wilson, C- B. Bowman, Daniel Driesbach, John Connor, Thomas M’Nair & Co., doth sell and convey…

Pleas of Luzerne county. William Wynn against Jacob Allard. The plaintiff was walking in the middle of one of the most frequented streets of the town of Wilkesbarre, where there were side-walks for footmen, when the defendant, in driving his horses in a sleigh rapidly along, ran against him and injured him, for which he brought this action of trespass. On the trial the plaintiff offered to prove that at the time of the occurrence the defendant was intoxicated.

This action was brought by Thomas Ellis, Esq., against Robert Pursel, for the recovery of a sum of money which the plaintiff alleged he paid, laid out, and expended for the defendant at his request, under the following circumstances.

Samuel Shaffer against William Sedam, executor of George Shaffer, deceased. This was an action of assumpsit, and came on for trial upon a declaration for work and labour, goods sold and delivered, money lent, and for money had and received, all by the testator in his lifetime.

Samuel Little, a poor person, applied to the overseers of the poor of Kelly township for relief. They afterwards obtained an order for his removal to the township of Clarion, in the county of Clarion, where he had his last legal settlement. The pauper was so infirm, that the agent employed was obliged to leave him on the way, having first sent for his son, who took charge of him, but not being able to maintain him, he found his way into the township of Union.

Daniel Hoatz against Burd Patterson, reputed owner, and Thomas Dunlap, claiming to be owner. Scire facias sur mechanic’s lien. Daniel Hoatz and Burd Patterson entered into an agreement, which was reduced to writing, by which the former contracted to furnish all the materials and build a furnace, casting-house, stables and houses necessarily appurtenant thereto, for Patterson, who contracted to pay therefor the sum of Í6000.

This was an action of ejectment for 200 acres of land by Thomas Baird against Anning C. Cahoon and Henry Pettibone. The plaintiff claiming under Samuel Baird, and having given in evidence a perfect title to the land, the defendant gave in evidence a regular assessment of it as 408 acres of unseated land in Washington township, for the taxes of 1833 amounting to two dollars, and a sale of it on the 10th June 1834 to the defendants. The original tract did not contain 408 acres.

This was an action of debt by the West Branch Bank against Thomas Moorehead, endorser of Daniel Musselman. The drawer of the note, Daniel Musselman, had another note in bank, on which William Donaldson, Esq., was the endorser, and before either was due, the bank discounted a draft for Daniel Musselman for 11000, and applied the proceeds to the Donaldson note. The defence in this case was, that the application should have been to the note now in suit.

This was an action on the case, by Thomas Dean against New Milford Township, to recover damages for an injury sustained by the plaintiff in' consequence of a public road in said township being out of repair. The proof was that the road was out of repair; by reason of which, the plaintiff’s carriage was broken, one of his horses killed and another injured. The only question was, whether the action could be maintained ?

WRIT of error to the Common Pleas of Tioga county. Alexander Baring and others, trustees of the estate of William Bingham, against Cromwell Peirce and others. This was an action of trespass quare clausum fregit for entering upon the land of the plaintiffs and cutting and carrying away timber. The defendants pleaded not guilty and liberum tenementum: to which the plaintiffs made a novel assignment describing the locus in quo.

John Cummings, Esq. against Thomas Cummings. This was an action of assumpsit for money had and received by the defendant for the use of the plaintiff, and for money paid, laid out and expended by the plaintiff for the defendant; to which the defendant pleaded non assumpsit and payment with leave, &c. In 1837 the plaintiff, John H. Cowden, and John E. Oliver, entered into two contracts with the Susquehanna Canal Company under the name of Cummings, Cowden & Oliver, for the…

This was an action of trover, brought by William Tallman and Charles Tallman against John Bower, to recover damages for 680 broad rails of the value of $54.44, alleged to be the property of the plaintiffs, and to have been converted by the defendant to his own use.

David Benjamin against Jesse Benjamin. This action was brought to recover the amount of an award, in which the parties agreed to the following facts: The parties entered into an agreement in writing to submit all matters in variance between them, under the provisions of the Act of 1836, to three arbitrators, whose award was to be final and conclusive between them. The arbitrators met and heard the parties, and made an award for the plaintiff for #142.

<p>ERROR to the Common Pleas of Columbia county.</p> <p>George Amos and Nathan Feigley against Daniel Sponeberger, Charles F. Mann, J. F. Mann, Thomas Metzger and Jacob Rapp. This was an action of assumpsit to recover the price of goods and merchandise sold and delivered by the plaintiffs to the defendants.</p> <p>Daniel Sponeberger and C. F. & J. F. Mann, entered into a contract with the Lehigh Coal and Navigation Company for the construction of a section of the canal; the interest of Sponeberger in the contract was one-half. After the work was partly done, C. F. & J. F. Mann transferred one-half of their interest in the contract to Thomas Metzger, upon the conditions that he was to superintend the work to its completion, and be entitled to one-half the profits, if any, and be subject to one-half the losses. At the same time, Daniel Sponeberger transferred the one-half of his interest to Jacob Rapp upon the same terms. When these transfers were made, Sponeberger and C. F. & J. F. Mann directed the Lehigh Coal and Navigation Company to make the monthly payments to Jacob Rapp or Thomas Metzger, “ their receipt to be the same as ours,” except the final estimate. After the plaintiffs had proved these facts, they gave in evidence their books of original entries, in which Rapp and Metzger were charged with goods and merchandise furnished for the work to the amount of #791.79.</p> <p>The defendants then proved, that after the transfer of the one-half of his interest in the contract by Sponéberger, he called upon the plaintiffs, settled his account, and paid the balance then due, and gave them notice “ not to trust Thomas Metzger or Jacob Rapp, or any other person on my credit, without an order from me, or I come myself.” The goods and merchandise, for the price of which this suit was brought, were sold to Metzger and Rapp after the date of this notice.</p> <p>The plaintiffs requested the court to charge the jury:—“ That notwithstanding the jury should believe that the notice referred to was given to the plaintiffs, yet, if the goods and merchandise were received and used upon the work in which the defendants were jointly interested, they were jointly liable for the plaintiffs’ claim and “ that the notice as proved was not sufficient to bar the plaintiffs from recovering from the dormant partners.”</p> <p>Lewis, President, instructed the jury, that the facts of the case constituted all the parties interested in the contract with the company, partners: but if the jury believed that notice was given by Sponeberger to the plaintiffs, not to credit the firm on his account, they were not entitled to recover in this action. A verdict and judgment were rendered for the defendants.</p> <p>argued that Sponeberger, notwithstanding his notice, remained liable for goods actually received and used for his benefit: even if a partner give notice of' his having withdrawn from the firm, yet if he continues in fact to participate in the profits, he would be liable to creditors. 3 Kent’s Com. 45. If the plaintiff had omitted to sue Sponeberger, the others might have pleaded it in abatement; and, certainly, the proof of such notice would not avoid the effect of the plea.</p> <p>argued that partners had but an implied authority to bind each other in matters pertaining to the partnership; and there was no reason why this implication might not be removed as to third persons by an express notice, that, as between themselves, no such authority existed. Besides, the law is so settled by the best authorities. 10 East 264; 3 Kent’s Com. 45; 1 Whart. 388; Col. on Part. 214; 3 Conn. Rep. 124; Cary on Part. Ill; 19 Johns. 538; Chit, on Con. 207 ; 1 Young <£■ Jar-ms 227; Gow on Part. 49, note 3; 3 Stark. Ev. 1075.</p>