Volume 5 — Wharton's Pennsylvania Reports

IN ERROR. This was a writ of Error to the District Court for the City and County of Philadelphia, to remove the record of an action of replevin brought by John S. Riddle, against Washington Wei den, for certain articles of furniture. • On the trial in the Court below, the'jury found the following facts as a special verdict: “ That the defendant was the bailiff of James Simpson at the time of the distress.

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by John Robinson against “ The Union Burial Ground Society of the City and County of Philadelphia.” The facts upon which the question in this action arose, are fully set forth in the case which was stated for the opinion of the Court below, as follows : “ It is agreed that the Union Burial Ground Society aforesaid by…

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia. Held: as security against this mortgage, which they declined. The evidence on both sides being closed, the plaintiffs’ counsel requested the judge to charge the jury— “ 1.

APPEAL. This was an appeal by Benjamin Chew, Jr., Esq., from a decree of the Orphans’ Court for the county of Philadelphia, in the matter of the settlement of the accounts of Edward Shippen Burd, executor of the will of William Tilghman, Esq., deceased. The appellant’s deceased wife, Elizabeth Margaret Chew, was the only child of the testator and of his deceased wife, Mrs. Margaret Tilghman, who was one of the daughters of James Allen, son of William Allen.

1ST ERROR. This was a writ of error to the Court of Criminal Sessions for the City and County of Philadelphia, to remove the record of an indictment against Thomas W. Dyott, for fraudulent insolvency. The record exhibited the following state of facts. On the 15th of February, 1839, Judge Todd issued the following precept to the clerk of the Court. “ City and County of Philadelphia, ss. To the Clerk of the Court of Criminal Sessions for the City and County of Philadelphia.

CERTIORARI. This was a certiorari to the Mayor’s Court for the City of Philadelphia, to remove the record of certain proceedings instituted in the name of the commonwealth on the relation of “ the Guardians for the Relief and Employment of the Poor of the City of Philadelphia, the District of Southwark, and the Townships of the Northern Liberties and Penn,” against Jacob Newhouse. The following statement of facts was agreed to by the counsel.

.This was an action on the case brought by Jacob Green against 'Israel Roberts, Richard Jordan and Archibald Robertson.

IN ERROR. Error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought by Everett H. Plummer against Milton Smith and Edward Brown, trading under the firm of Smith & Brown. , . The plaintiff declared in assumpsit on a promissory note drawn by the defendants in his favour, for three hundred and twenty-two dollars and fifty cents; with the common money counts.

IN’ ERROR. Error to the Court of Common Pleas for the City and County of Philadelphia. Yeates, the plaintiff below, brought an action before Alderman Badger, to recover for work and labour done for the defendant Cleaden, and obtained a judgment for forty-two dollars and twenty-four cents. Cleaden appealed to the Court of Common Pleas, where the cause came on for trial.

<p>This was an action of assumpsit for money had and received, brought by Hacker, Brown & Co. against Perkins, assignee of Peaslee, Sims & Co. The pleas were non-assumpsit and payment with leave, &c.</p> <p>The cause was tried at a Court of Nisi Prius held at Philadelphia by Gibson-, C. J. on the 28th of November, 1837, when the following facts appeared in evidence.</p> <p>On the 24th of November, 1832, Peaslee, Sims & Co. made a general assignment to the defendant, in trust for the payment of creditors, in certain classes, as follows:</p> <p>1st class, “ All borrowed money loaned to the said firm of Peas-lee, Sims &'Co. and for which neither the bond nor promissory note of the said firm is now held.”</p> <p>2nd class, “All and every sum and sums of money borrowed by the said firm, from individuals or firms, and for which either the bond or promissory note of the said parties of the first part has been given; and fully to indemnify and save harmless all and every individual and firm, of and from” all loss for or by reason of any promissory note, draft or bill of exchange, drawn, endorsed or accepted, or signed by him' or them, for the accommodation of the said parties of the first part.”</p> <p>3rd class, “The remaining debts and claims against the said Peaslee, Sims & Co.”</p> <p>By the terms of the assignment, no creditor was to receive any benefit under it, unless on or before the 25th of January, 1833, at noon, he executed to the assignors, a release of all demands.</p> <p>The plaintiffs were creditors in each of the three classes mentioned in the assignment; and on the 11th of January, 1833, executed the release, and received a dividend of fifty-two and a half cents in the dollar on the amount of their preference in the first class, and gave the following receipt.</p> <p>“Received, Philadelphia, January 11th, 1833,of S. H. Perkins, assignee of Peaslee, Sims & Co., eight hundred and thirty-eight dollars and eighty-seven cents, being fifty-two and a half cents on the dollar, on amount of our preference under first class.</p> <p>For the late firm of Hacker, Brown & Co.</p> <p>$838 87 Isaiah Hacker.”</p> <p>The defendant after paying in full the creditors under the first class amounting to eight thousand six hundred and ninety-eight dollars and ninety cents, and a dividend of ten thousand four hundred and forty-seven dollars and sixty-eight cents, on the undisputed claims in the second class, filed and settled his accounts on the 25th of October, 1833, in the office of the clerk of the Common Pleas of Philadelphia county; which were given in evidence by the plaintiffs on the trial; • and by which it appeared, that after the allowance of the above payments and of all other credits claimed by him, he had in hand a balance of four thousand seven hundred and fifty-eight dollars seventy-two cents.</p> <p>The plaintiffs — (besides having other demands partly in the first class and partly in the third class, under the assignment) — were the holders of sixteen promissory notes of the assignors, each drawn in their favour, amounting in the aggregate to eight thousand two hundred and fifty-two dollars eighty-two cents; as to which they claimed to be creditors in the second class under the assignment. Their right, in respect to the amounts of these notes to stand in this class of preferences, was disputed by the defendant on behalf of the other creditors.</p> <p>The debts due to creditors in the second class, whose claims were undisputed, amounted to thirty-two thousand one hundred and forty nine dollars and three cents ; among whom the defendant had paid as above, ten thousand four hundred and forty-seven dollars sixty-eight cents; and he had in hand the balance of four thousand seven hundred and fifty-eight dollars seventy-two cents ; making the sum for distribution, according to the account which had been settled when this action was brought, $15,206 40</p> <p>To the undisputed, 32,149 03</p> <p>Adding the amount of the sixteen notes on which the plaintiffs claimed to be entitled to receive a dividend, viz. 8,252 82</p> <p>The aggregate would be $40,401 85</p> <p>and the dividend thereon receivable from fifteen thousand two hundred and six dollars forty cents, would be equal to $37 63 per cent., or three thousand one hundred and five dollars fifty-three cents, the amount to which the plaintiffs considered themselves entitled of the fifteen thousand two hundred and six dollars forty'cents, which was for distribution as above on the 25th of October, 1833.</p> <p>The plaintiffs gave in evidence the above-mentioned assignment and release.</p> <p>They next gave in evidence the sixteen notes, to which numbers were affixed by the counsel to facilitate reference to them. Of these notes, fourteen were accompanied by the checks of the plaintiffs for their respective amounts, less interest, as explained below in the testimony of Messrs. Burkhart and Peaslee. Each of the notes bore date in the year 1832, and was drawn by Peaslee, Sims & Co., to the order of the plaintiffs. Neither of the sixteen notes had ever been endorsed by the plaintiffs. The following is a schedule of the notes and of the checks.</p> <p>1832.</p> <p>No. 1. Note dated May 21, for $900 payable in 6 mos. (check dated 21 Sep., 1832, for 890 40.)</p> <p>2. Note dated May 22, for $700 payable in 6 mos. (check dated 22 Sep., 1832, for 692 53.)</p> <p>3. Note dated Oct 20, for $600 payable in 60 days, (2 checks of date of note one for 500, the other for 93 70.)</p> <p>4. Note dated Oct. 23, for $850 payable in 60 days, (1 check of date of note for 840 93.)</p> <p>5. Note dated Oct. 25, for $450 payable in 60 days, (1 check of date of note for 445 20.)</p> <p>6. Note dated Oct. 27, for $312 05 payable in 60 days, ) one</p> <p>7. Note dated Oct. 27, for $285 payable in 60 days, > check</p> <p>8. Note dated Oct. 27, for $500 payable in 60 days, ) for $1085 35 amount of these three notes, less interest.</p> <p>9. Note dated Oct. 31, for $500 payable in 60 days, (1 check for 494 67.)</p> <p>10. Note dated Nov. 3, for $200 payable in 60 days, (1 check for 197 83.)</p> <p>11. Note dated Nov. 6, for $730 payable in 60 days, (no check.)</p> <p>12. Note dated Nov. 7, for $200 payable in 60 days, (check for 197 87.)</p> <p>13. Note dated Nov. 14, for $350 payable in 60 days, (check for 346 27.)</p> <p>14. Note dated Nov. 15, for $670 payable in 60 days, (no check.)</p> <p>15. Note dated Nov. 17, for $450 payable in 60 days, (check for 445 20.)</p> <p>16. Note dated Nov. 20, for $555 77 payable in 60 days, (check for 550.)</p> <p>The whole amounting to $8252 82</p> <p>It appeared that the transactions out of which these notes had arisen, were originally sales of goods by the plaintiffs to Peaslee, Sims & Co., for the price of which notes had been given. When the credits for these sales expired, the notes were renewed for a part of their original amount, under an arrangement for an extension of time made between the parties when Peaslee, Sims & Co. were found to be in pecuniary difficulties.</p> <p>Mr. Burkhart one of the firm of Peaslee, Sims & Co., was called by the plaintiffs, and testified as follows, in respect to the note No. 1.</p> <p>“Note No. 1, originated in a note dated 13th of October, 1831, for sixteen hundred and forty-five dollars fourteen cents, at eight months, for two bills of merchandise, one of fourteen hundred and ninety-two dollars seventy-three cents, dated 9th month 13th, 1831; and one of the same date for one hundred and fifty-two dollars forty-two cents. The note for sixteen hundred -and forty-five dollars fourteen cents, due 13-16 May, endorsed in red inl?, May 16, and endorsed by the plaintiffs, — also endorsed paid in. the handwriting of A. Comly, book-keeper of Peaslee, Sims & Co. When that note for sixteen hundred and forty-five dollars fourteen cents became due, it was renewed by paying four hundred and thirty-two dollars fifty-five cents, and a new note for twelve hundred and twelve dollars sixty cents, which I hold in my hand. We made an arrangement with the plaintiffs to renew for us this note with others; having about that time got into difficulties which they were aware of. Owing them at that time a good deal of money, we thought it advisable that they should renew these notes for us, rather than we should ask others, if we could help it, as it .was of importance to them and to us to maintain the credit of our house. I think we took the twelve hundred and twelve dollars sixty cents, as well as four hundred and thirty-two dollars fifty-five cents, to the bank in which that original note was. That twelve hundred and twelve dollars sixty cents was taken either in money or in our check. Hacker, Brown & Co. handed us the twelve hundred and twelve dollars sixty cents in money or in their own check; with that we withdrew from bank the note for sixteen hundred and forty-five dollars fourteen cents; when we received their check we first drew it in money; when we drew our own check it was made good through the funds received from Hacker, Brown & Co. and other funds. The twelve hundred and twelve dollars sixty cents was the renewal of the amount which we could not pay on the former note. It was for the amount that remained unpaid on the first note with the'interest added; that amount which-remained unpaid on the first note was the same amount for which we received the check or note of the plaintiffs. (In answer to a juror.) The most usual way was for them to discount the new note. It stood in the place of the original note. It was not intended to pay the original note. The note for twelve hundred, and twelve dollars sixty cents was at four months from the 16th of March. It is endorsed ‘paid.’ When that note for twelve hundred and twelve dollars sixty cents fell due, we reduced it to one thousand dollars by paying two hundred and twelve dollars sixty cents. ■ I believe the one thousand dollars was received from the plaintiffs in the same way that I have testified in regard to the original note, according to our arrangement. For the one thousand dollars wé gave a new note which I hold in my hand, dated 18th of May, 1832, endorsed paid bythe same Allen Comly, our book-keeper. When that note for one thousand dollars 'fell due, we paid with our own funds one hundred dollars: the balance, or nine hundred dollars was procured from Hacker, Brown & Co. in the same way, less the discount or interest; and that note for nine' hundred dollars, No. 1, was given for it, and this is the check.”</p> <p>On his cross-examination he said — “ About the time these renewals commenced, we had been unfortunate in making bad debts, and it became necessary that we should have an extension of credit. The plaintiffs were perfectly aware of our situation. They and we thought it advisable for them to renew these notes, that our difficulties might not be known, as we had a prospect of getting through and maintaining our credit; and they agreed to renew these notes in this way that it might not be known. In the mode adopted there was nothing peculiar. It was an extension of credit.”</p> <p>Mr. Peaslee, another of the firm, who was called for the defendant, stated the arrangement with respect to the extension, as follows :</p> <p>“ We, (Peaslee, Sims & Co.,) had it in contemplation at that time to suspend payment, and consulted with Hacker, Brown & Co. on the subject. They advised us not to suspend payments, but to ask for an extension. They offered us an extension, which we agreed to accept, which was, that as fast as our notes to them became due, we should pay as much upon them as we could. I mean the notes to about fifty or sixty thousand dollars, which had been given for merchandise purchased from them. ' We did not ask •nor obtain an extension from any other creditors. With Hacker, Brown & Co., we pursued that course up to the time of our assignment, — I mean the course of renewals — reducing the amount by the ■time of assignment to about nine thousand dollars. The notes were renewed by taking to Placker, Brown & Co. a new note for the amount which we wished renewed, adding interest for the time it had to run, and receiving from Placker, Brown & Co. a check for a similar amount, independent of the interest, which was added to the note; we then took up the note by paying the difference ourselves. This was the way. At one time, when I was getting a note renewed, Mr. Isaiah Placker proposed that we should give memorandum checks for the amount of the renewal, instead of a note, to which I dissented, and remarked at the same time, that I should prefer having them arranged in the same manner those had been, which had been previously renewed; and no objection was made to it on the part of Mr. Hacker. This was some time after the commencement of the renewals. I am not certain of the exact amount ‘of the merchandise for which we owed Hacker, Brown & Co. at the date of the receipts.”</p> <p>Of most of the notes there was more than one renewal. What took place on the occasion of these renewals was alleged by the plaintiffs, and denied by the defendants, to have constituted a borrowing of money. The circumstances attending the renewals were stated by Mr. Burkhart, as follows;</p> <p>“ The money received by us was usually immediately taken to bank where the notes were, and the plaintiffs got it. It was left there and the note given up to us: where we received the money for the purpose of withdrawing the note from bank, or received a check from them, we drew the money, and took that, with what we could pay on account, to the bank, and received the note or notes. There were some of these notes that I believe were settled at the plaintiffs’ counting-house. The money was taken to the banks where the plaintiffs kept their account; not where we kept our account. We invariably took the money itself to the bank where the notes were. The new notes were for the balance of the old notes. The present notes are the lowest amounts of the notes. The new notes, with the money received from the plaintiffs, were taken to bank. The day after this took place the plaintiffs stood better than they had stood the day before, in this, that we owed them so much less as the difference between the respective amounts of the old note and the new one. The money was passed to the credit of the plaintiffs. The new note had nothing to do with the bank transaction. I do not know that the bank knew of the notes being renewed. The course is, that the money is passed to the credit of the note in the bank ; they are not out of pocket longer than to go from one back to the other. The arrangement between us was that the notes should be renewed. There was no arrangement that they should lend us money. We did occasionally borrow money from the plaintiffs for the purpose of meeting an engagement. We would tell them we were short, and wanted to borrow money for a few days. We have borrowed money and given our notes for the amount; and they at one time advanced us about twelve thousand dollars. They took collateral security notes of others for the amount. They have been paid the collateral securities; and I believe all the borrowed money that we have had of them has been paid.</p> <p>With regard to a note not in bank we would take the money or our check down to the counting-house, and give a new note for the balance; and on those occasions no money passed between us. No. 14 is a note of that description. When I have said in my examination that the note did not go into bank, the transaction was of this character. The new notes were a mere continuance of the note called the original note. There was nothing but a taking up of the old note for the new one. Such renewals of notes constitute an extension of credit, and is a common transaction in Philadelphia. On such occasions the money always remains with the party who provides it on the occasion. I have never known myself any such transactions, except my own, to be a witness to them.”</p> <p>Mr. Peaslee described the manner of these renewals as follows:</p> <p>“ The notes were renewed by taking to Hacker, Brown & Co. a new note for the amount which we wished renewed, adding interest for the time it had to run, and receiving from Hacker, Brown & Co. a check for a similar amount, independent of the interest which was added to the note; we then took up the note, by paying the difference ourfeelves. This was the way. On these occasions, we, in the first place drew out of the bank the amount of their check and applied that money towards the taking up of the old note; and this, to the best of my knowledge, was repeated on each renewal. The old notes were paid at the bank by us and received by us. The sixteen notes produced by the plaintiffs’ counsel purporting to be drawn by Peaslee, Sims & Co. in favour of Hacker, Brown & Co., are all of them genuine notes, with'the signatures of Peaslee, Sims & Co., and are all of them, I believe, notes received by the plaintiffs from Peaslee, Sims & Co. in renewal of former notes, in precisely the manner I have stated. As to each’of the sixteen notes which I have identified above, I believe that the check of Hacker, Brown’& Co. was received, and the amount of it drawn out of bank in money and applied to the taking up of a previous note, as I have explained above. During my interviews with the plaintiffs, nothing was said about borrowing money; they never gave me authority to use the money in any other way than to take up the notes.”</p> <p>The notes in which the notes in question had originated (except one, of which the loss was proved,) and all intermediate notes given in renewal of them, were produced from among the papers of Peas-lee, Sims & Co., in the hands of the defendant as assignee; and the witness, Mr. Burkhart, traced each of them successively from the original notes to the present note.</p> <p>The whole of the several notes referred to, and'produced by Mr. Burkhart, were given in evidence; they were all endorsed by the plaintiff, and the word paid was written upon the back of them, with the exception of two or three of them, which were cancelled by tearing off the signature; some of them had subsequent endorsements on them.</p> <p>In the series of renewals there was occasionally a note or two which did not appear to have been in bank, and on the renewal of which no check or money had been given by the plaintiffs to enable Peaslee, Sims & Co. to take it up, as in the cases where the note was in bank. But, except as to notes Nos. 9, .11 and 14 there was no dispute that the original note for the price of the goods and the last note’ of the series of renewed notes (in each of the two extremes of the series prior to the present notes) had been in bank, and had been at maturity taken out of bank by Peaslee, Sims & Co. with money received by them for the purpose from the plaintiffs, as explained above. As to note No. 9, for five hundred dollars, a check of the plaintiffs was given in evidence and verified for the amount of this note, less the discount. It had originated in a note for fifteen hundred and ninety-six dollars and thirty-two cents, which Mr. Burk-hart supposed had not been in bank, but which was afterwards proved to have been discounted for the plaintiffs in Stephen Girard’s bank.</p> <p>Notes Nos. 11 and 14 were the only two for the amounts of which, less interest, the plaintiffs did not produce their checks as above. Each of them was the renewal of an original note for the price of goods. Mr. Burkhart deposed that the original of note No. 14 never was in bank. He could not remember whether the original of No. 11 had been in bank or not. He did not produce it, but proved its loss. All of the other original notes had been in the bank where those of larger amount had been discounted, and the rest had remained for collection in bank till due.</p> <p>In the course of the trial the following points of evidence were ruled.</p> <p>1. Charles S. Peaslee’s deposition in writing had been taken on behalf of the defendant at a former period, in which he had deposed in chief, as follows:</p> <p>“ Immediately after our assignment we made out a list of the debts we owed, and of our creditors, in classes according to this schedule, which is the paper itself, marked B. It was laid open for the inspection of all our creditors who chose to come and look at it. It was laid upon our desk at our counting-house, with our assignment and release, where it remained till the time of signing the release expired. Our creditors were in the habit of coming in and' examining this schedule with our release and assignment. Hacker, Brown & Co., that is Isaiah Hacker and Mr. Brown were there in our counting-house and examined this schedule with the release and assignment. They did so more than once; our release was signed by them at the same place ; we had no communications between the date of our assignment and the time of executing our release with either of that firm, as to the amount in different classes.”</p> <p>And in cross-examination — Being asked whether a conversation did not take place shortly after the assignment was made between himself and Mr. Isaiah Hacker, as to the effect of the assignment ; he answered, “ I do not recollect. It is possible such a conversation may have occurred, and I cannot say it did not, but I do not remember of any; my mind was very much harrassed at the time.”</p> <p>On a former trial of this cause William T. Burkhart had been examined as á witness for the defendant, and had also testified that soon after the making of the assignment, and before the execution of the release, the assignors prepared the above-mentioned statement of their affairs, to be exhibited to their creditors, and it lay for some time on the desk, in their counting-house, along with the assignment and release, open to the examination of such of their creditors as might wish to inspect them; that the above-named members of the plaintiffs’ firm, were in and out occasionally during this period. He recollected theirl ooking at this exhibit and believed that they, or one of them, examined it. One of them saw it several times; but the witness could not remember any conversation that passed concerning it.</p> <p>The statement referred to by these witnesses consisted of four schedules, one of them headed thus:</p> <p>“ In order according to our assignment No. 1, borrowed money” in which there were certain names and amounts, and among them “Hacker, Brown & Co. $1597 85.”</p> <p>Another headed “ in order according to our assignment No. 2 endorsements,” contained among others this item, “ to Hacker, Brown & Co. for balance of their bond for money loaned us to pay drafts and acceptances for account of Jones & Truesdell’s,</p> <p>$10376 65</p> <p>for which they hold Jones and Truesdell’s notes as above 6165 54</p> <p>$4211 11”</p> <p>Another headed “ in. order according to our assignment No. 3 for merchandise,” contained, among other items “ to Hacker, Brown & Co. nine thousand and forty-nine dollars and fifteen cents.” The remaining schedule was entitled “ summary under head No. 4,” and after bringing in the aggregates from each of the three other schedules, proceeded to give a statement of assets in hand and expected; adding “ in the above summary we have endeavoured to come as near the actual state of things as in our judgment was correct.” It was dated at foot, December 13th, 1832, and was without signature.</p> <p>The defendant offered to give in evidence, testimony of Mr. Peaslee and Mr. Burkhart, such as they had respectively given before, (as above,) concerning this statement; and in connection with this testimony offered to give in evidence the statement itself.</p> <p>The Court rejected the offer. The defendant excepted.</p> <p>2. After Mr. Peaslee, the witness of the defendant, had been examined as to the facts relating to the payment of money by the plaintiffs, at the time of their receiving the notes in question, he was asked by the defendant’s counsel, “ Did you ever receive, or did they (the plaintiffs) give the money or checks (referred to in the evidence respecting the renewals) as a loan 1 or did you receive it as agent to take up the notes!” The question was objected to, on the ground, that it involved a mere point of law, viz.: whether a man could receive money for his own use, otherwise than as a borrower. The Court refused to permit the question to be answered.</p> <p>The defendant excepted.</p> <p>3. The Court also rejected evidence offered on the part of the defendant, to show that according to mercantile usage, the renewal of a note was not considered as a loan of money. The defendant excepted.</p> <p>The evidence on both sides being closed; under the recommenda* tion of the Court, a verdict was by consent given for the defendant without prejudice to the rights of either party-, the Court to have power on the judge’s report of the evidence to decide any question of fact, or to order a new trial; if the Court should be of opinion that the verdict ought to have been for the plaintiffs,- a verdict and .judgment to be entered for the plaintiffs in such sum as the Court might think them entitled to, on the evidence so reported.</p> <p>1st. That uponthetrue construction of thewords of the assignment, the plaintiffs were to be considered as creditors for borrowed money; ■ and upon this point they cited Ellmaher v. Ellmaher, (4 Watts, 90.) Paul v. Lewis, (4 Watts, 403.) Finch, 321. 5 Wentworth, 147,- 165. 2 Richardson's Practice, 1295. 2 Chitty’s Pi. 181. Rastell, 152. Marriat v. Sister, (2 Wilson, 142.) Herries v. Jameson, (5 Term Rep. 554.) Jones on Bailments, 54. Robson v. Bennet, (2 Taunton, 395.) Hays v. M‘Clung, (4 Watts, 454.) Slaymaker v. Gundacher, (10 Serg. & R. 82.) Exparte Barclay, (7 Ves. 597.) Hart v. Boiler, (15 Serg. & R. 163.) Dillon v. Rimmer, (1 Bingh. 100; S. C.- 8 Eng. Com. Law Rep. 263.)</p> <p>2d. That the evidence offered on the trial was properly rejected: in reference to which they cited, Lyon v. Mar clay, (1 Watts, 274.) Gratz v. Gratz, (4 Rawle, 431.) Weidler v. The Farmers Bank of Lancaster, (11 Serg. & R. 139.) Saville v. Robinson, (4 Term Rep. 724.) 1 Star. Evi. 40. 2 Id. 380. Alexander v. Kerr, (2 Rawle, 89.) Crest v. Jack, (3 Watts, 239.)- Fleming v. Slocum, (18 Johns. 403.) Kuhn v. Nixon, (15 Serg. & A., 121.) Robinson v. Justice, (2 Penn. Rep. 19.) Lewis v. Jones, (4 Barn. & Cres. 506, S. C. 10 Eng. Com. Law Rep. 393.)</p> <p>1st. The first object must be to discover the intentions and understanding of the parties to this assignment and release: and then whether they have expressed that intention by appropriate terms and descriptions of classes.</p> <p>The intention of the parties is clear in the first class of preferences under the asignment: there is but one condition annexed to the loan; it must be without evidence of debt, neither bond nor promissory note. In the second class there must be a borrowing of money and evidence of the debt given; there must be such a borrowing as creates the debt, not an evidence of a prior debt for merchandize; not a delivering to the assignors of money to take to the bank for theplain-tiffs’ own use, to go directly to their credit; or rather to remain with them. The agreement of the parties as to these sixteen notes, was not that the plaintiffs should lend money; but that they should grant an extension of credit — should renew their notes. But it is argued that the first notes given for the goods were paid; and that the consideration of the new notes, was the money received from the plaintiffs with which to take up the old notes. This was in pursuance of the agreement. The renewal was to be in this way, in order to save the credit of the makers; and in law the taking up the old notes, by paying part and giving new notes for the balance was not payment; unless the new note was paid at maturity, or was agreed to be taken in payment. Putnam v. Lewis, (8 Johns. 304.) House v. Low, (2 Johns. 378.) Tobey v. Barber, (5 Johns. 67, 72.) Johnson v. Weed, (9 Johns. 309.) Owenson v. Morse, (7 T. R. 60.) Drake v. Mitchell et al.,(3 East, 251.) Sheeley v. Mandeville, et al. (6 Cranch, 253.) Shermerhorn v. Loines, (7 Johns. 310.) Wilson v. Force, (6 Johns. 110.) Tapley v. Martens, (8 T. R. 451.) Herring v. Singer, (3 Johnson’s Cases, 71.) Tyson v. Pollock, (1 Penn. Rep. 381.) Puckford v. Maxwell, (6 T. R. 52.) Bishop v. Row, (3 M. & S. 362.) Olcott v. Rathbone, (5 Wend. 490.) Porter v. Talcott, (1 Coioen, 359.) Hughes v. Wheeler, (8 Cowen, 77.) Hart v. Boiler, (15 Serg. & R. 163.) Keen v. Dufresne, (3 Serg. & R. 233.) Ex parte Barkley, (7 Ves. Jr. 597.) Robinson v. Read, (9 B. & C. 449; S. C. 17 Eng. C. Lavo Rep. 418.) Wyatt v. Hert-ford, (3 East, 147.) Marsh v. Redder, (4 Camp. 257.) Everett v. Collins, (2 Camp. 515.)</p> <p>The schedules should have been permitted to go to the jury as to what took place at the time of executing the release.— Up to the time of these plaintiffs signing the release, the assignment was merely a proposal, an offer to contract between the parties, not complete till the plaintiffs executed the release; and what then took place is evidence. Scott v. Sherkley, (3 Watts, 50.) Krider v. Lafferty, (1 Whart. 303.) Ingham v. Crary, (1 Penn. Rep. 389.) Hultzv. Wright, (16 Serg. & Rawle, 345.) Bertschv. Lehigh C. & JV. Co., (4 Rawle, 130.) Keller v. Leib, (1 Penn. Rep. 220.) Bollinger v. Eckert, (16 Serg. & R. 424.) Miller v. Henderson, (10 Serg. & Rawle, 292.) Christ v. Deffenbach, (I Serg. & R. 464.) 1 Yeates, 139. Cozens v. Stevenson, (5 Serg. & R. 421.) Campbell v. M‘Clenachan, (6 Serg. & R. 171.) Field v. Biddle, (2 Dali. 171.) M‘Minnv. Owen, (2 Dali. 173.) Zantzinger v. Ketch, (4 Dali. 132.) Dinkle v. Marshall, (3 Binn. 587.) Evidence should have been admitted to show that according to mercantile usage, the renewal of a note was not considered. as a loan of money when renewed as the sixteen notes in question were proved to have been. Evidence of usageor custom was admitted to fix the meaning of words in the following cases. Whipple v. Lovitt, (2 Mass. Rep. 89.) Gordon et al. v. Little, (8 Serg. & R. 533.) Stultz v. Dickey, (5 Binn. 285.) 3 Starkie on Evid. Snozoden v. Warder, (3 Rawle, 101.) Roscoe on Evid. 10, and cases there cited. Jones v. Fales, (4 Mass. 245.) Lincoln v. Kennebeck Bank, (9 Mass. 155.) Blanchard v. Hilliard, (11 Mass. 85.) Pierce v. Butler, (14 Mass. 303.) Whit-nell v. Johnson, (17 Mass. 449.) 13 Peters’s S. C. Reports, 89. Clayton v. Gregson, (30 Eng. Com. Lazo Rep. 400; £. C. 4 JV. & M. 602; S. C. 31 Eng. Com. Law Rep. 342; S. C. 5 A. & E. 302.) Loringv. Gordon, (5 Pickering, 15.) Birch v. Depeyster, (2 Eng. Com. Lazo Rep. 359.) Cutter v. Powell, (6 T. R. 320.) 2 Bingh. JY. C. 668; 29 Eng. Com. Law Rep. 452. 15 Wend. 561. 2 M. & R. 85. 2 Shepley, 185. 20 Pickering, 150.</p> <p>cited Page v. The Bank of Alexandria, (7 Wheaton, 35.) Mandeville v. Welsh, (5 Wheaton, 277.) Musgrave v. Gibbs, (1 Dali. 237.) Galagher v. Roberts, (2 Wash. C. C. Rep. 191.) Brown v. Jenkins, (2 Wash. C. C. Reps. 24.) Commercial Bank v. Clapier, (3 Rawle, 338.) Moliere v. The Penn. Ins. Co., (5 Rawle, 347.) MCulloh v. Girard, (4 Wash. C. C. Rep. 289.) Cortelyou v. Lansing, (2 Caines, 202.) Armine v. Spencer, (4 Wendell, 407.) Jackson v. Parkhurst, (4 Wendell, 369.) Brewster v- Countryman, (12 Wendell, 446.) Parker v. Hook, (16 Serg. & Rawle, 327.) Halsey v, Whitney, (4 Mason, 206.) Gordon v. Cooley, (1 Sumner, 527.)</p>

<p>IN ERROR.</p> <p>This was a writ of error to the Court of Common Pleas of Lehigh County.</p> <p>Jacob Erdman brought an action in that Court against John Romig ; in which a case was stated for the opinion of the Court, setting forth the following facts: .</p> <p>On the 17th of April, 1797, Adam Romig made his last will and testament, which was proved on the 2d of October, 1798, and contained, among other provisions, the following:</p> <p>“ And I do hereby order and direct that my executors hereinafter to be mentioned, do take and set apart out of and from my estate the sum of three hundred pounds, lawful money of Pennsylvania, and put the same out on lawful interest, on good security, and do pay the interest thereof yearly and every year to my wife Elizabeth during all the term and time of her natural life,” &c. Add on her* death he directed that this sum Should form part of the residue of his estate, which- he divided among his children, in certain proportions; and he appointed Adam Romig and John Romig executors. After the probate of the will, by a family arrangement the interest of the additional sum of twelve hundred dollars was given to the widow, in lieu of certain other provisions made for her in the will; which sum, together with ihe eight hundred dollars mentioned in the will, were set apart for the use of the widow for life, and at her decease, to be distributed agreeably to the directions of the will.</p> <p>The testator left fourteen children, seven sons and seven daughters, surviving him. Jacob, one of the' sons, died unmarried and in his minority. On the 24th of July, 1838, the widow of the testator died. 'Adam Romig, one of the executor's, has been .dead several ■ years, and his estate is insolvent.</p> <p>■ John Romig, the other executor, yet survives, and lias in his hands fourteen hundred and sixty-six dollar's and sixty-seven cents of the two thousand dollars set apart fot the use of the widow, to be distributed to those legally entitled to. the same, under the will. On the 21st of February, 1821, Jacob Erdman, the plaintiff, obtained from Daniel Romig, one of the sons of the testator, the following assignment, under seal. “ Know all men by these presents, that I, Daniel Romig, of Durham township, in the county of Bucks, in the commonwealth of Pennsylvania, miller, for and in consideration of the sum of one hundred and twenty-seven dollars and sixty-five .cents, lawful money of the United States, to me in hand paid by Jacob Erdman, of Upper Saucon township, in the county of Lehigh, and in the commonwealth of Pennsylvania, at and before the enseal-ing and delivery hereof, the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over and by these presents do sell, assign, transfer and set over unto the said Jacob Erdman, his executors and administrators, all such sum and sums of money, shares or portions, legacies and bequests as are given and bequeathed, to me, or by any ways or means Goming to me, after the decease'of my mother, Elizabeth Romig, agreeably to the last will and testament of my father, Adam Romig, late of Upper Saucon township, then in the county of Northampton, and now in the county of Lehigh aforesaid, miller, deceased. To have and to hold the same to him, the said Jacob Erdman, his- executors, administrators and assigns, to his and their own proper use and behoof forever,” &c., &c.</p> <p>Under this assignment the plaintiff claims the share of the said Daniel Romig in the said sum of fourteen hundred and sixty-six dollars and sixty-seven cents.</p> <p>The payment of the share of Daniel Romig to the plaintiff is resisted by the said John Romig, because, on the 27th of November, 1816, he became bound in a bond with Daniel Romig to one Jacob Werst for the debt of the said Daniel, in the penalty of one hundred and thirty-two dollars and forty cents, conditioned for the payment of sixty-six dollars and twenty cents, in one year, with interest.</p> <p>By different endorsements on the said bond, the interest appears to have been paid up to November 27th, 1822: there are besides the following endorsements.</p> <p>“ 1823. August 23. Received from John Romig on this bond the sum of fifty dollars. (Signed) Jacob Werst.”</p> <p>“Received, June 15th, 1822, of John Fackenthal, one of the assignees of Daniel Romig, twelve dollars and eighty cents on the within bond, it being for the dividend at nineteen cents to the dollar.”</p> <p>“ 1824. January 16th. I, Jacob Werst, received the backstanding money of the bond from John Romig: so that what I did receive from John Romig on the bond and interest make the sum of sixty-seven dollars and twenty-three cents received by me. — $67 23.</p> <p>(Signed) Jacob Werst.”</p> <p>If under the foregoing facts the said Jacob Erdman is entitled to receive the share of the said Daniel Romig, then judgment to be entered for the plaintiff, the amount to be ascertained by the parties; otherwise for the defendants. All the papers referred to are made part of the case.</p> <p>The facts to be considered in the nature of a special verdict; either party being entitled to take out a writ of error.”</p> <p>After argument, the Court of Common Pleas gave judgment upon this case in favour of the plaintiff. The following is the substance of the opinion pronounced by Judge Banks, on the 9th of May, 1839.</p> <p>“ The liability of the defendant is as executor of Adam Romig. The claim he wishes to defalk is not against his testator, but against Daniel Romig. It could not be declared on as the debt of his testator, and cannot be pleaded as such in this suit. It is the private debt of the defendant, who is executor. According to the authority of the case of Potter v. Burd, (4 IVatts, 18,) the defendant’s claim cannot be used as a defence to the plaintiff’s claim. That case lays down the broad principle that an administrator cannot acquire a right by purchase or otherwise to a claim against a person who has a debt against the estate he represents, and use it as a set-off. This would apply to executors. That case rules the.present. There are other points in the case equally decisive against the defendant, in my opinion. The authority cited however is sufficient.”</p> <p>This writ of error was then talcen by the defendant; and on the ■return of the record the following errors were assigned.</p> <p>“ 1. The Court erred in not giving judgment for the defendant.</p> <p>2. The Court erred in considering the liability of the defendant to be as executor of Adam Romig ; whereas the case shows that it was a personal liability to Daniel Romig for a legacy bequeathed to him by the said Adam Romig; and the counter claim of John Romig against the said Daniel Romig should have been allowed, either,by way of defalcation, or as an equitable defence.</p> <p>3. The assignment of the legacy to the plaintiff below was not in the way of .the defence, because there was no notice to the defendant below of such assignment before he had paid off the bond, and because the liability for Daniel Romig was incurred by John Romig long before the assignment to the plaintiff below, of the legacy.?’</p> <p>1. That the debt due by Daniel Romig, the legatee, to the defendant, was not barred by the statute of limitations; and cited upon this point, Dorsheimer v. Bucher, (7 Serg. & Rawle, 9.) Greiner's ;Estate, (2 Watts, 416.) Cole v. Saxby, (3 Exp. Rep. 160.) Robinson v. Wilson, (2 Madd. Ch. Rep. 435.) Parson v. Priddock, (2 ¡Vern. 608.)</p> <p>2. That the defendant had a right to set off the amount of this ■debt against the claim of the plaintiff, or to avail himself of it as an ■equitable defence. Wolf v. Beates, (6 Serg. & Rawle, 244.) Wain v. Hewes, (5 Serg. & Rawle, 469.) Stewart v. Coulter, (12 Serg. & Raiole, 447.) Lewis v. Culbertson, (11 Serg. & Rawle, 48.) Morrow v. Brenizer, (2 Rawle, 185.) Bixler v. Kunkle, (17 Serg. & Rawle, 298.) Foulk v. Broion, (2 Watts, 213.) M‘Culloh v. Sample, (1 Penn. Rep. 424.) Kline v. Guihart, (2 Penn. Rep. 494.) Mas-ierson v. Masterson, (5 Rawle, 137.) Krause v. Beitel, (3 Rawle, 199.) Frantz v. Brown, (1 Penn. Rep. 257.) Dobson v. Lockhart, (5 Term Rep. 133.)</p> <p>1. The bond in which the defendant below was surety became due in 1817, and must be presumed to have been paid in 1837. The remedy of the surety is by an action of assumpsit; and he cannot stand in the shoes of the obligee as a specialty creditor. Walter v. Walter, (1 Wharton's Rep. 299.)</p> <p>2. Debts cannot be set off» unless due in the same right. Darrach v. Hay, (2 Yeates, 208.) The case of Potter v. Burd, (4 Watts, 15,} is in point, and conclusive.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Northampton County.</p> <p>This was an action of trover brought by William Yardley and James Martin against Daniel Raub and Richard Brodhead, Jr., to recover the value of certain household goods and furniture, claimed by the plaintiffs under the following circumstances.</p> <p>On the 16th of June, 1821, Sarah Woolston who was possessed of personal property of the value of about twenty-six hundred dollars, being about to marry George Atherton, conveyed by deed all her property to William Yardley and James Martin, upon the following trusts:</p> <p>“ In trust, that the said William Yardley and James Martin, their heirs, executors, administrators and assigns, shall, until the said marriage takes place, pay the rents, issues, profits and proceeds of the same, to the said Sarah Woolston, and from and immediately after the solemnization of the said marriage, pay the rents, issues, profits and proceeds of the same to the said Sarah, to her sole and separate use during her coverture, and if the said Sarah shall survive the said George Atherton, then to convey, assign and transfer the same to the said Sarah, her heirs, executors, administrators and assigns forever. And if the said Sarah shall not survive the said George Atherton, then to convey, assign and transfer the same to such person and persons and for such estate and estates as she the said Sarah shall, notwithstanding her coverture, by any writing under her hand and seal, executed in the presence of two witnesses in the nature of a will or appointment, or otherwise, from time to time direct, limit or appoint, and in default thereof, then to convey, assign and transfer the same to the right heirs and legal representatives of the said Sarah their heirs and assigns forever; if more than one, in equal parts as tenants in common and not as joint tenants; and to and for no other use, intent or purpose whatsoever.”</p> <p>This instrument was recorded in Montgomery county on the 2nd of April, 1827, and in Northampton county on the 27th of June, 1834.</p> <p>The marriage took place shortly after the date of the settlement. The parties then resided in Bucks county. They afterwards removed to Montgomery county; and in 1830, Atherton took a lease of a tavern at Bethlehem in Northampton county. Yarious articles of furniture, and other personal property, had previously to this, been purchased with the wife’s separate money; and at the time of taking the lease of the tavern, furniture, liquors, and other articles suitable and necessary for a tavern, were purchased in the name of the trustees, to the amount of about two thousand dollars, and placed in the tavern, the business of which was carried on by George Atherton, until the month of August, 1835, when the goods were levied upon by the sheriff of Northampton by virtue of a writ oí fieri facias against him, and sold.</p> <p>This action was then brought by the trustees against the sheriff.</p> <p>On the trial before Banks (President), on the 28th of November, 1837, a great deal of evidence was given on both sides, respecting the method in which the various articles of furniture, &c. were acquired, and the sources from which the purchase-money was derived.</p> <p>The learned judge charged the jury in substance as follows.</p> <p>“ This action is brought by the plaintiffs, as trustees of the wife of George Atherton, under a marriage settlement made by her before her marriage, with the knowledge and consent of said Atherton.</p> <p>From the evidence it would appear, that she had an estate of about $2600. At the time of the execution of her deed of trust, her estate consisted all of personal property. After the marriage, furniture, goods, liquors, and other articles suitable and necessary for a tavern were purchased, amounting to twenty-five hundred and twenty-one dollars thirty-one cents. These goods were selected and purchased under the examination of her and her husband alone. The trustees were not present when any of the purchases were made. All the said goods were paid for by the trustees. The marriage settlement bears date the 16th of June, 1821: the marriage took place in the same month of the same year, but after its execution. Atherton took a lease of a tavern stand, and some lands, on the 31st of Mai’ch, 1830. The tavern house was situate in the town of Bethlehem, and the lands were near to it. The lease was for one year, and to commence on the'1st of April, 1830. This lease was to Atherton, and in his own name, and for his own use. Atherton paid the rent, farmed the lands, and conducted and managed the tavern in his own name, and received the produce of the farmed lands, and the profits of the tavern. The goods which were paid for by the trustees, were purchased about the time this lease was taken, and were used in and about the tavern, as goods generally are about a public house. The carriage was used by them both. Some of these goods were sold' by the sheriff, and have been sufficiently identified. A judgment was obtained in the Court of Common Pleas of this county against Atherton ; and the goods for which this suit is brought were levied upon and sold as the property of George Atherton, in 1835, he having continued to occupy the house and lands up to this time, as I have already stated. The plaintiffs by their endorsement on the lease, guaranteed the payment of the rent, for and on behalf of Atherton. This suit is brought against Raub, who was the sheriff who made the levy and sale, and Brodhead the attorney, who had charge of the collection of the judgment, and who was present superintending and directing the sale. The facts proved are all left for your decision. Do. they entitle the plaintiffs to recover! There is not much contrariety in the testimony. You will not I presume have much difficulty in determining the facts: it is the law and not the facts, which has been controverted. By the terms of the marriage settlement, the trustees held the property, and were to pay the rents* issues, profits* and proceeds thereof to Mrs. Atherton, for her sole and separate use, during the joint lives of her and her husband. If she survived her husband, then they were to release the trust forever to her. If she died during the life of her husband, they were in that case to convey the same as she might direct,' and if no disposition of the same was made by her, then they were to convey it to her heirs. Atherton and his wife are both living : so that- this case is to be determined in view of that part of the deed only which secures to the wife the rents, issues, profits and proceeds of the farm, for her sole and separate' use. Marriage settlements executed before marriage, when fairly and honestly made, are legal and valid; nor does the policy of the law require that they should be adjudged fraudulent. There are no facts proved in this case which show that this settlement was fraudulent when made; you will therefore view it as a valid, binding instrument. Marriage settlements are mostly made out of caution on the part of the female herself, or her friends, for the purpose of guarding her estate against the misfortunes, unkindness or vices of the husband. By this means a subsist^ ence is secured to herself, and her estate after her death to her offspring or kindred. This is a lawful object, and is not to be discountenanced. They should be fully and fairly enforced so as to realize their objects. This can only be done by a rigid exaction of the term of the trust deed from the parties, on the part of the court. The wife, even, is not permitted to exercise any power over the trust property, but what' is reserved to her by the terms of the writing. This alone can save her estate from the undue influence, inter-meddling and control of the husband. This is indeed, the essential purpose of the deed. Courts will not tolerate that this intention and purpose when duly expressed should be defeated. Therefore the wife for her own safety is herself- bound and limited to the mode of disposition prescribed by the deed of trust. She is not deemed the absolute proprietor, nor is she permitted to exercise uncontrolled dominion over it; if she was, her own prudence and the anxious care of parents or friends would in nine cases out of ten prove utterly unavailing. The testimony shows that all, or nearly all the trust estate, was withdrawn from the hands, care and management of the trustees, and invested in this perishable, wasting property, if it can with any propriety be called an investment. The business was carried on by Atherton alone in his name. The business was his, the profits were his, if any were realized. The house and lands were rented by him. The property which is the subject of the present action was placed in his possession by the trustees, with the consent of the wife. The trustees consented to his occupancy and use of it, such as it has been proved to have been. They knew the use it was intended for in Atherton’s possession. It may with propriety be asked, was this in conformity to the provisions of the trust deed ? lam constrained to answer that it was not, if yoh believe the testimony as to the possession and the use. The trustees were to hold the property, and to pay to Mrs. Atherton for her sole and separate use the rents, profits and proceeds thereof. So far from doing this, they place the entire estate in the hands, and subject to the management of her husband, for his use and profit, in a trade that is not most free from risk and danger. Probably her estate could, not have been embarked in a more perilous traffic. This use was not warranted by the trust deed. How is this property, then, in Atherton’s possession, as regards his creditors? It was purchased under the supervision of him' and his wife. It was placed in his possession, to be used by her in his own name, and for his own profit. It was paid for out of the trust estate,-by the trustees, to be sure. It was mixed with his own.' It was used by him in his business promiscuously with his own. ' It was repaired by him at -his own expense, whenever repair was necessary. Under these circumstances, was it, as regards his creditors, to be considered as purchased for him, and to be deemed his ? The possession and use -of personal property, is a strong mark of right to the property; indeed it is the highest evidence of absolute ownership. The person who claims right to property thus possessed and used by another, must omit no duty which is material to his right. If he- does, he will be postponed when he comes in conflict with the just creditors of the person in the actual possession of the property. Here the plaintiffs, in point of law, did omit a positive and solemnly enjoined duty. They violated the conditions on which they held the property; They placed it in a situation very likely to defeat the object for which it was committed to 'their charge, and well calculated to defeat Atherton’s just creditors. — How were creditors to know what part of the property thus possessed • and used by Atherton, was his; and what the plaintiffs’ ? There was no schedule in the hands of the plaintiffs that showed this; nor is there anything in the deed of trust which would disclose this important fact. What would creditors do other than what was done in this case, except they would abandon all pretension to raise the debt out of his goods. Atherton’s property might have been very successfully covered under this condition of things. We find that the plaintiffs did in fact claim all the property that was in Atherton’s possession at the time of the levy and sale, yet it turns out on the trial that no inconsiderable portion of it was confessedly his. The plaintiffs did not only omit a, plain and palpable duty, but were guilty of a plain and palpable breach of trust. — The possession of Atherton was not consistent with the trust deed. The deed did not furnish evidence of a right to justify this possession: on the contrary it most clearly demonstrated that the possession was not justified. There is no evidence that the wife had the direction or management of this business* or of the property thus used in it. The business was not her’s; it was not carried on for her sole and separate use, nor is there any thing in the deed which looked to any such employment of the fund. She was not the agent of the trustees in this trade. Although she was in the house with her husband, the possession of the goods was not in her, so as to make it that of the trustees. It was all yielded up without limitation to the management, discretion and judgment of Atherton; and his possession of the goods thus employed, was not the possession of the trustees. The Court then, leaves all the facts to your consideration : you are not bound by anything which the Court may have said touching the facts; you will form your own conclusion of this for yourselves from all the evidence. The Court, then, as to the law, directs you, that if from the testimony you believe that Atherton carried on the business or trade in his own name and for his own use, and contracted debts in it; that he had the possession, order and direction of the business and these goods in it, and that with the consent of the trustees and his wife; then this possession and use of it by Atherton, would not be in accordance with the deed of trust, and therefore would be fraudulent as to Atherton’s creditors; and that the levy and sale by Raub, the sheriff, would be warranted by law, and the plaintiffs in that case would not recover. Unless you find the possession, use and occupancy of the property by Atherton to be as is just stated, then your verdict should be for the plaintiffs.”</p> <p>The jury found for the defendants and the plaintiffs removed the record to this Court by a writ of error.</p> <p>cited Willis on Trusts, 127. Sugdenon Powers, 222. Prevost v. Gratz, (1 Peters C. C. Rep. 364.) Towers v. Hagner, (3 Wharton's Rep. 48.) Hoover v. Samaritan Society, (4 Wharton's Reports, 445.) Thomas v. Folwell, (2 Wharton's Reports, 11.) Jeremy on Equity, 207. Watson on Sheriff, 183. Cordovan v. Kennedy, (Cowper, 432.) Cloiv v. Ifoods, (5 Serg. & Rawle, 379.) Jarmin v. Woolson, (3 Term Rep. 618.) Dewey v. Baynton, (6 East, 257.) Quick v. Garrison, (10 Wendell, 335.) 2 Mkyns, 217. Darby v. Rees, (8 Term Rep. 82.)</p> <p>cited Sugdenon Powers, 211, 213. Rundle v. Murgatroyd, (4 Dallas, 305.) Willis on Trustees, 181. 1 Saunders on Uses, 365. 2 Chilly’s Equity Digest, 1309. 3 Harrison's Digest, 2107. Eichelberger’s Appeal, (4 Watts, 84.) 4 Kent’s Com. 309. Mherley on Marriage Settlements, 284. Bingham on Coverture, 218, 285. M‘ Glinsey’s Appeal, (14 Serg. & Rawle, 64.) Streeper v. Eckert, (2 Wharton’s Rep. 302.) Cussel v. Spayd, (3 Watts, 409.) Hart v. Ten Eyck, (2 Johns. Chan. Rep. 81, 108.) Lancaster v. Dolan, (1 Rawle, 247.) Pullen v. Reinhart, (1 Wharton’s Rep. 520.) Commonwealth, v. Strembach, (3 Rawle, 343.) Babb v. Clemson, (10 Serg. & Rawle, 419.)</p>

This was an action of trover brought by William B. Morgan against John G. Watmough, Esq., high sheriff of the city and county of Philadelphia, to recover certain goods alleged in the declaration to be the property of the plaintiff. The vilrit issued on the 13th of June, 1837.

<p>An infant under seven years of age may be bound apprentice in any art, mystery, occupation or labour, with the assent of his parent, guardian or next friend, under the act of 29 th of September, 1770.</p>

£N ERROR This was a writ of error to the District Court for the City and County o'f Philadelphia, to remove the record of an action on the case, brought by Samuel F. Dorr, Francis F. Dorr, and William C. Allen, trading as S. & F. Dorr & Co. against William Brown and William Agnew, late trading as Brown & Agnew, to recover the amount of a promissory note drawn by the defendants in favour of Mr. H. C. Corbett, dated the 6th of March, 1832, and endorsed to, the plaintiffs.

APPEAL This was an appeal from a ‘decree of the Orphans* Court of Northampton County, in the -matter of the settlement of the accounts of Elizabeth Hinds, administrator -of the goods of Benjamin Hinds, deceased. The circumstances of the case appear to have been as follows: Benjamin Hinds, the intestate, was married in the year 1809 to1 Elizabeth .

<p>1. Under the act of 20th of March, 1810, a judgment against a constable for the amount of an execution is conclusive upon his sureties.</p> <p>S. In an action thereupon against the sureties of a constable to recover the amount of such judgment, it was held, that evidence Was Hot admissible to show that the constable had lent the money to the plaintiff.</p>

ÍN ERROR. Errcu- to the Court of Common Pleas of the County of Philadelphia.

APPEAL. This was an appeal by George W. Mentz & Son, from a decree of the Court of Common Pleas of Northampton County, in the matter of the distribution of certain money arising from the cale of the goods of Henry Hamman, under two writs of fieri facias. The facts appeared to be as follows.

IN ERROR. This was a writ of error to the Court of Common Pleas of Northampton County, to remove the record of an action of ejectment brought by Anthony F. Miller against John Schall, Samuel Brooke, John Drehr, impleaded with James Cresson, Joseph Cresson, John Hunt, Henry Fox, Anthony Fox, Benjamin Griffith, Samuel Rodgers, David Davies and Samuel Fowler, to recover a tract of one hundred and ninety-five acres and seventy-six perches of land, in Norwegian township,…

IN ERROR. Ehror to the Court of Common Pleas of Northampton County, into which this cause was removed by appeal from the judgment of Jacob Weygandt, Esq., a justice of the peace. The plaintiff, Jonas Snyder, declared in assumpsit against Joseph Wertz, for goods sold and delivered ; to which the defendant pleaded non-assumpsit. The cause being at issue came on for trial on the 31st of August, 1838.

<p>1. A parol agreement, made at the time of a sheriff’s sale of land under a judgment, between a person holding a mortgage upon the land prior to the judgment, and one who contemplated purchasing the land at the sale, that the mortgage might remain a lien on the land, and that the latter should be required to pay to the sheriff only the surplus of purchase-money beyond the amount of the mortgage, is not binding upon one who derived title from the purchaser at the sheriff’s sale, without notice of the agreement.</p> <p>2. An alias scire facias on a mortgage was issued against A., as administrator of the mortgagor, and terre-tenants. The sheriff returned “ Nihil,” as to A., and “ made known,” to B., C., D. & E., terre-tenants. F. was admitted, on petition, to defend pro intereses suo ; and at the trial offered to put in a special plea, which was refused by the Court: C., D., and E. also offered to put in special pleas, which were also refused. D. and E. then filed disclaimers. The jury were sworn as between the plaintiff and A., B., C., and F., and a verdict was given for the plaintiff: after which the Court ordered judgment to be entered against A., as administrator, for the amount of the verdict. Held, 1st. That it was error to reject the pleas offered by F. and the other terre-tenants. 2d. That the jury ought to have been sworn as against all the parties who appeared, notwithstanding the disclaimer of two. 3d. That judgment ought to have been entered against A. by default in the first instance; and that it was error to give judgment against him on the verdict.</p>

<p>This was an action of trover brought in this Court, in which James C. C. Bell, William De Yongh and Robert Grant, lately trading under the firm of Bell, De Yongh & Co., were plaintiffs, and Joseph M. Moss and David Samuel were defendants.</p> <p>, The action was instituted to try an alleged right, and the exercise of the right of stoppage in transitu, of certain silks, alleged to have been sold by the plaintiffs, who resided at Leghorn, to the late firm of R. & J. Phillips, who resided at Philadelphia; and which goods had passed into the possession of the defendants, who were the assignees under a special assignment of the effects of the said R. & J. Phillips, in New York, &c.; which assignment is hereinafter given.</p> <p>On the trial before Sergeant, X, at a Court of Nisi Prius held in Philadelphia on the 14th of November, 1839, the plaintiffs gave in evidence an agreement of the parties “ that the action be entered amicably without writ: that a declaration be filed in trover for four cases manufactured silks marked vs Nos. 9, 10, 11 and 12, per ship William & Francis : and that the defendants shall admit that they are in possession of the same, and have converted them to their own use; the intention of the parties being to try, in this action, the right of the plaintiffs to the said goodsand the following papers.</p> <p>Invoice, dated 13th of March, a. d. 1837, of four cases silks, marked vs Nos. 9 a 12, shipped on board the ship William and Francis at Leghorn, bound for New York, by the plaintiffs, to the order of Messrs. R. & X Phillips, of Philadelphia. (Produced by the defendants upon call of the plaintiffs.)</p> <p>Bill of lading, dated 13th of March, a. d. 1837, for the said four cases of silks, signed by Charles Lander, master of the said ship, to be delivered at New York, to the order of R. & J. Phillips. This bill of lading was assigned by R. & X Phillips to the defendants as assignees aforesaid. (Produced by the defendants upon call of the plaintiffs.)</p> <p>Letter. — Geo. F. Darby to R. & X Phillips, dated New York, 2d May, a. d. 1837. Extract as follows :—</p> <p>“ Enclosed I send you a letter from Messrs. Bell & Grant, London, containing the unpleasant intelligence that the drafts of Messrs. Bell, De Yongh & Co., for your account on Messrs. Lizardi & Co. had been dishonoured. I have at the same time a letter from Messrs. Bell, De Yongh & Co., informing me, that they were shipping four cases manufactured silks per William and Francis, and they had valued the cost of the same on the above named London house. I have therefore requested the favour of you to inform me for whose account these silks are imported by you, and how it is intended to reimburse my Leghorn friends, since their drafts on London were not honoured. I feel confident that you are as desirous as I can be to protect the interest of my Leghorn friends. I beg you will favour me with an answer with your views, as to the best course to be pursued for that purpose. Please to acquaint me with the exact situation of all your dependencies with them, and to state also if the goods to your address per Eurotas, are included in some previous settlement of account between you and them. I shall feel greatly indebted to you by your early attention to the above, being always with great regard and interest, &c.”</p> <p>Letter. — R. & J. Phillips, to Geo. F. Darby, dated Philadelphia, 3d May, a. d. 1837. Extract as follows:</p> <p>“Your letter of yesterday with enclosures to us received, putting down three cases of silks per Louvre and one per Eurotas in the account current at our debit, we owed Messrs. Bell, De Yongh & Co., a balance of p5824 18. 2., by their account the cost of the four per William and Francis is pi 1,083 10. 0. the unaccepted drawings against these three invoices is equal to pll,247 or £1120 and £1037. The cost of silks per Eurotas, Louvre, and William and Francis is p21,215 41-100ths. Had these bills been honoured on the invoices per Louvre and Eurotas, the amount of p5423 would have been so much over and against the invoice per William and Francis, and making our indebtedness actually p5661 7. 1. on the whole to Messrs. Bell, De Yongh & Co. We consider that these bills must be paid, when due, if Messrs. Bell, De Yongh & Co. insist on it, as Messrs. Lizardi & Co. opened and confirmed positively a credit ,in favour of them for £10,000 — £7843 of which they had only employed, and had never received from London any withdrawal of that credit — therefore they, Lizardi & Co. are bound to pay them, if Messrs. Bell, De Yongh & Co. insist on it; it amounts to an acceptance already. All the goods coming to our consignment, arriving in New York, are assigned to Messrs. J. M. Moss and Mr. D. Samuel, for the benefit of our creditors, and are therefore put of our control.”</p> <p>Letter. — George F. Darby to J. M. Moss and D. Samuel, assignees as aforesaid, dated New York, 5th May, a. d. 1837. Extractas follows:</p> <p>“I consider it my duty, as the agent of Messrs. Bell, De Yongh & Co. of Leghorn, to notify you that I have received advice (from Messrs. Bell & Grant of London,) that two bills of exchange, drawn by Bell, De Yongh & Co., upon Messrs. Lizardi & Co. of London, in favour of Messrs. Bell & Grant, one dated the 10th of March, 1837, for £1120, the other dated the 14th of March, 1837, for £1037, have not been accepted by the said Lizardi & Co., but are now under protest; and that as these bills were drawn upon purchases of silks made by Messrs. Bell, De Yongh & Co. for the account of Messrs. R. & J. Phillips, and which have been shipped to them by the Eurotas, Louvre and William and Francis, and were to have been paid for by the acceptances of Lizardi & Co.; that Messrs. R. & J. Phillips have not yet acquired, as I am advised, a legal title to said silks, and consequently could have no right to assign them for the benefit of their creditors. I therefore propose,, that the portion of silks already arrived, and those hereafter to arrive, should be placed in deposit with me as the agent of the above mentioned houses of Bell, De Yongh & Co. and Bell & Grant, until it is seen whetheh Messrs. Lizardi & Co. pay the above bills at maturity, Messrs. R. & J. Phillips having stated, in their, letter to me of the 3d inst., that they consider Messrs. Lizardi & Co. bound to pay these bills in consequence (as they state) of having opened and confirmed a credit in favour of Messrs. Bell, De Yongh & Co. for £10,000, to meet purchases of goods for account of the Messrs. Phillips, at Leghorn, or should you decline the above proposal, ■which appears to me as reasonable and good, thén I further notify you on behalf of Messrs. Bell, De Yongh & Co., that the silks above referred to, and of which a memorandum is at foot, have not been paid for by Messrs. R. & J. Phillips, and that Messrs. Bell, De Yough & Co. require you to keep a separate account of the sales or other disposition thereof. 1 will claim from you personally the proceeds thereof, as being their property. — I flatter myself that you will not see, in this notice, anything unfriendly, .either to yourself or the Messrs. Phillips, for I have no such intention, but the discharge of a duty to my Leghorn friends.”</p> <p>' Letter. — J. M. Moss and D. Samuel, to- George F. Darby, dated Philadelphia, 8th May, 1837. Extract as follows:</p> <p>“ Your favour of the 5th May, was duly received, but being absent in New York, was not opened until yesterday. With every desire upon our part to avoid litigation, (which is seconded by the Messrs. Phillips,) and at once to give up the goods, but we are so well satisfied that the Messrs. Lizardi are bound for their confirmed credit to Messrs. Bell, De Yongh & Co., that without the advice of our counsellor, F. Griffin, Esq. of New York, we do not feel ourselves at liberty to do so. By this day’s mail we forward to the latter gentleman a statement of the whole transaction, and shall await his decision before we act.”</p> <p>Agreement between the parties, dated 21st of May, a. d. 1837, in the following words:</p> <p>• “Memo, of agreement between Bell, De Yongh & Co. of Leghorn, acting in their behalf, say George F. Darby, their agent at New York, and Joseph M. Moss and David Samuel, assignees of Messrs. R. & J. Phillips, of Philadelphia, the twenty-first day of May, one thousand eight hundred and thirty-seven. Whereas, the above named Bell, De Yongh & Co. of Leghorn, have shipped to the said R. & J. Phillips of Philadelphia, two several quantities of silks, and by the vessels mentioned below, and have for their payment drawn upon Messrs, Lizardi & Co., of London, the following bills of exchange, to wit, £1120 sterling, say eleven hundred and twenty pounds sterling, March, 10th. £1037 sterling, say ten hundred and thirty seven pounds sterling, March, 14th, drawn by Bell, De Yongh & Co., of Leghorn, in favour of Messrs. Bell & Grant, London, wffiich bills of exchange have been protested for nonacceptance, though it is hoped they will be paid at maturity. It is therefore agreed between- the above named *parties, that the silks above referred to and specified below, shall be held by and remain in possession of the said Joseph L. Moss and David Samuel, subject to the legal claims and right of the said Bell, De Yongh & Co. and the said assignees; and the said assignees engage and promise not to sell, dispose of or part with the said silks, until any questions arising, or to arise, as to the rights of the parties to said silks, shall be decided by a competent tribunal. In case the said bills should be paid, then the said silks are discharged from any claim or lien therein on behalf of the said Bell, De Yongh & Co., and in case they or any of them are not paid, the rights of neither party are to be affected by this ágreement or any thing herein contained.”</p> <p>Cases of silks referred to in the above agreement, vs. “9, 10, 11, 12, four cases, amounting per invoice to pi 1,082 10.”</p> <p>A bill of exchange, dated Leghorn, 10th March, a. d. 1837, at three months date, for £1120, drawn by the plaintiffs on F. D. Lizardi & Co. of London, in favour of themselves, and endorsed to Messrs. Bell & Grant of London.</p> <p>Protest for non-payment on the 13th of June, 1837,</p> <p>A bill of exchange, dated Leghorn, 14th of March, a. d. 1837, at three months date, for £1037, drawn by the plaintiffs on F. De Lizardi & Co. of London, in favour of themselves, and endorsed to Messrs. Bell & Grant of London.</p> <p>Protest for non-payment on the 17th of June, a. d. 1837.</p> <p>The following facts were agreed to:</p> <p>The ship William and Francis, with the said silks on board, arrived at New York on.the 9th of May, a. d. 1837.</p> <p>Messrs. Bell & Grant of London,, were a branch of the plaintiffs’ house, and protested the bills aforesaid as agents of Bell, De Yongh & Co. for collecting the same.</p> <p>George F. Darby was the plaintiffs’ agent at New York.</p> <p>Messrs. R. & J..Phillips stopped payment before the said silks arrived at New York, viz. on or about the 22d of March, 1837.</p> <p>The defendants on the trial gave in evidence the following:</p> <p>Letter. — F. De Lizardi & Co. to R. & J. Phillips, dated London, 29th June, 1836. Extract as follows:</p> <p>“Bell, De Yongh & Co. of Leghorn. We observe the credit granted by you in their favour for £10,000, ten thousand pounds, or such portion thereof as they may employ, which shall be duly attended to. We observe that in neither of the credits now referred to, have we any invoices or bills of lading to require of the parties drawing.”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated Leghorn, July 16th, 1836.* Extract as follows:</p> <p>“ The credit for £10,000, you have been pleased to open in our favour with Messrs. F. De Lizardi & Co. of London, shall be made use of as circumstances require. Our exchanges have risen considerably of late, owing to the great scarcity of money; and bills on London are now hardly negotiable at 50|.”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated Leghorn, November 19th, 1836. Extract as follows:—</p> <p>“We have taken the liberty of drawing upon Messrs. Lizardi & Co., of London, for £stg. 2750 — as per note at foot which figures to the credit of your account in silver pl4,184 13. 4.”</p> <p>1836. Note. . Silver.</p> <p>Sept. 29, £stg. 550 at usance at exchange of 50d. &</p> <p>Agis 7 0-0 Nov, 4. “ 1000 do. do. 49| “ p2824 16 00 5161 16 01</p> <p>“ 7, “ 900 do. do. 49f “ 4645 12 06</p> <p>“11, “ 300 do. do. 49-f “ 1552 08 09</p> <p>pi,4184 13 04</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated, Leghorn, Dec. 2, 1836. Extract as follows:—</p> <p>“ In looking into the state of your account we find that after drawing upon Messrs. De Lizardi & Co., for the rags and two cases of silks from Sartori to go by the Groton, we shall have about £stg. 2800, remaining at our disposal from your credit of 31st of May last, for £stg. 10,000. According to the contracts made by Mr. Sartori for silks deliverable to all March next, the amount will be about £stg. 4000, and consequently we should be expecting from you a fresh credit. In this reckoning is included all the refined borax received up to this period; and if we cancel your contract, as we hope to do, there will be little more to pay on that account.”</p> <p>Letter. — Bell, De Yongh &, Co. to R. & J. Phillips, dated Leghorn, December 21st, 1836. Extract as follows :</p> <p>“ At foot is a note of our draft for your account upon Messrs. Lizardi & Co., in £stg. 2700 to your credit in pl4,000 15. 6., silver, which nearly balances our disbursements for you, after allowing full pl2 for the net proceeds of the coffee and cocoa per Volant, which we much fear exceeds what those goods will really fetch.”</p> <p>Note of our drafts.</p> <p>1836. Nov. 28th, £1200 at cash of 49 f 15 05</p> <p>Dec. 2, 4150 06 00</p> <p>“ 7, 700 do. 49* 3604 14 01</p> <p>£2700 at three months date, pl4,000 15 06 including p7 0-0 Agio.</p> <p>Letter. — Bell, De Yongh & Co. to R., & J. Phillips, dated Leghorn, January, 3, 1837. Extract as follows:—</p> <p>“ By the Eurotas there will be two more cases of wrought silks for you from Mr. Sartori, for which we have prepared funds by our drafts of the 30th ult., 3 months date, upon Messrs. Lizardi & Co., for £stg. 500; and the same figures to the credit of your account at 49¿d in p2607 2. silver.”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated Leghorn, January, 13th, 1837. Extract as follows:—</p> <p>“ By the Eurotas you will receive two cases more silks from Mr. Sartori, and we have drawn upon Messrs. Lizardi for £stg. 300, at three months date to keep your account square; and the same figures to your credit in pl564 5. 2. silver, as per note at foot, but you will please to keep in mind that by March next, we shall require a fresh credit.</p> <p>Note. ■</p> <p>£stg. 300 at Exchange of 49J . Gold pl461 18 06</p> <p>Agio 7 0-0 102 06 08</p> <p>Silver ' 1564 05 02”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated Leghorn, March 8th, 1837. Extract as follows:—</p> <p>“ The silks in our possession from Mr. Sartori, will .be sent on board probably to-morrow, when we shall draw upon your friends, Messrs. F. De Lizardi & Co., of London, for the balance of your general account current in about £stg. 1100, leaving about £1000 of your credit in Lizardi & Co., undrawn for. Against it we shall have to ship all this month, silks from Sartori for about p7700, by which we shall be placed for about £stg. 425 in disburse. To this you must add the silks to be delivered and paid by us during the months of April, May, June, July and August next, amounting together to about p24,400 for which we have no doubt you have already provided, as by our letter of the 2d Dec. 1836, we informed you of the engagements we had taken. — The Louvre and William and Francis, are both nearly laden for New York, and we shall send your silks by the first that sails.”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J. Phillips, dated Leghorn, March 17th, 1837. Extract as follows:</p> <p>“ In date of the 8th instant we wrote you through Havre, all that occurred in your concerns here, of which enclosed is a triplicate copy, and subsequently we shipped for you, by the William and Francis, four cases of silks from Mr. Sartori, which vessel sailed on the 14th. By that conveyance we transmitted your bill of lading and legalized invoice ,of the same, amounting to pi 1083 10., and we now hand you inclosed duplicates of both these documents to serve in case of need. The Louvre sailed on the 12th, and it was our intention to have sent your silks by her, but Mr. Sartori assured us that the insurance had been ordered already per William and Francis, and as the former loaded a cargo chiefly of grain, as you will see by the annexed note, possibly she may make a long passage and 'arrive after the latter. We drew in date of the 14th £stg. 1037, at three months date, for your account upon Messrs. De Lizardi & Co. of London, which figures to your credit in p5407 2. 9. as per note at foot, and thereby your letter of credit of the 31st May last, is finished", and we shall be expecting a fresh credit for our reimbursement of the silks contracted for, as explained in our last.”</p> <p>Letter. — Bell, De Yongh & Co. to R. & J, Phillips, dated Leghorn, April 3d, 1837. Extract as follows :</p> <p>“ At foot you have copy of a few lines from Messrs. F. De Lizardi & Co. of London, dated the 23d ult. to inform us that they should pay no more of our drafts on your account: nevertheless as by our letter of the 11th March we informed them, that we were about to ship another case of silks for you, for which we should take our reimbursement to the extent of your credit on them of the 31st of May, we conclude that our draft for £stg. 1,037 in date of the 14th, will have been honoured.”</p> <p>“ Copy of Messrs. F. De Lizardi & Co’s, letter, dated London, 22d of March, 1837. The deranged state of commercial credit here, as connected with the United States, and the great uncertainty attending all remittances at present from that quarter, obliges us to close all American credits without exception. You will therefore please to suspend all further valuation on us in account of Messrs. R. & J. Phillips, of Philadelphia, for the present.”</p> <p>Three accounts of Lizardi & Co. withR. & J. Phillips, dated 31st of December, 1836, 9th of February, 1837* and 6th of May, 1837., containing statements of drafts drawn by Bell, De Yongh & Co. on Lizardi & Co., and paid by the latter, amounting to £8016 4. 4., exclusive of the two drafts of £1120 and £1037, dated the 10th and 14th of March, and showing a balance due to Lizardi & Co. on the general account of £63,294. 0.1.</p> <p>J. L. Moss, one of the firm of R. & J. Phillips, was produced as a witness on the part of the defendants; and having executed a release of all his interest in any surplus of the assigned estate, testified as follows:</p> <p>“ This statement, made the 10th of May, 1837, has my signature, and shows to debit of the plaintiffs for three thousand two hundred and sixty-one pezzos, (witness here refers to the statement annexed,) a pezzo is about ninety-two and a half cents, as we calculate it; (witness compares the statement with the letter from R. & J. Phillips to George F. Darby.) We discovered that the silks were not on board</p> <p>the Louvre, but in the William and Francis; we discovered that silks to the amount of eleven thousand and eighty three pezzos were not shipped by them; at the time we wrote to Mr. Darby, we supposed they were on board; afterwards we made out a new statement; instead of eighteen thousand three hundred and seventy-nine pezzos, we credited seven thousand two hundred and nine; the statement shows three thousand two hundred and sixty-one pezzos to debit of Bell, de Yongh & Co. I communicated the fact to the plaintiffs; this account of May 10th is a correct statement.”</p> <p>Being cross-examined by the plaintiff’s counsel, the witness said:</p> <p>“ We discovered error in the first item; they charged us with pezzos 1683.15, supposed to be paid to Sartori; this was a shipment we had consigned to the plaintiffs, with orders to credit Sartori with his portion of profits, and credited us short. They had made a double charge; we explained it to Mr. Darby, and he never expressed any dissatisfaction; we wrote also to Bell, de Yongh & Co.; I think some months before assignment. (Account R. & J. Phillips with Bell, de Yongh & Co., exhibited to him, dated July-25 th, 1838, hereafter appended in the rebutting testimony.) This account is correct, except that the pezzos 1683.15, above-mentioned, are to be deducted, and shows, that if these bills had been paid, there would have been a balance in our favour of 2000 pezzos and upwards; three cases included sent by William and Francis, included in 5824.18. 2, which included the erroneous item of 1683.15. 2. The assignees have the former account.”</p> <p>Statement made the 10th of May, 1837, referred to by the witness, as follows:</p> <p>“ Dr. Messrs. Bell, De Yongh, & Co. in account current with R. & J. Phillips.</p> <p>To this amount erro-Feb’y.</p> <p>neously debited, 1683 15 2 “ F. de Lizardi & By balance as per their account</p> <p>Co. for their two current, - 5284 18 2</p> <p>bills on them, “ One case silks,</p> <p>£2157 - - 11190 5 1 Wm. & Fran-</p> <p>cis, 3787 15 0</p> <p>12874 0 3 “ Balance due R.</p> <p>To balance due in & J. Phillips, 3261 7 1</p> <p>pezzos, 3261 7 1 Pezzos, 12874 0 3</p> <p>Errors excepted, May 10th, 1837. R. & J. Phillips.”</p> <p>The defendants then gave in evidence the assignment made by R. & J. Phillips to the defendants, which purported to, transfer certain real estate, situate in New York, and certain merchandise there, and debts due to the assignors, in trust to apply the proceeds, first to the payment of certain debts due by the assignees to Jonas Phillips & Co., of London, and afterwards to and among the other creditors.</p> <p>The defendants also gave in evidence an agreement between the parties, dated August 28th, 1839, for the sale of the silks in question; and the investment of the proceeds to abide the judgment of the ' Court.</p> <p>The following facts were also agreed: — The silks in question were taken possession of by the defendants, as assignees áforesaid, on their arrival at New York, and regularly entered at the custom house there.</p> <p>The bills of exchange before mentioned, were drawn on account ■ of the said silks, and upon the aforesaid credit of £10,000.</p> <p>The counsel for the plaintiffs gave in evidence the following as rebutting testimony:</p> <p>An account R. & J. Phillips with Bell, de Yongh & Co., dated July 25th, 1838, referred to by the witness, J. L. Moss, in which R. & J. Phillips were charged with the returned bills, and a balance appeared to the credit of Bell, De Yongh & Co., plO.549.</p> <p>Letter. — R. & J. Phillips to Bell, de Yongh & Co., dated the 31st of May, 1836. Extractas follows:—</p> <p>“ As it appears that some misunderstanding has taken place in regard to the silks ordered by Y. A. Sartori, we now beg you will follow this letter for the future, or until otherwise requested.</p> <p>You will oblige us by attending to the purchasing, and shipping of these silks hereafter yourselves. The invoices and bills of lading to be sent by you to us, and the amount of invoices to be charged to us, the same as for goods on our account.</p> <p>* * * *• #</p> <p>Hereafter any amount to be drawn for our account, please to value at ninety days, on our friends, Messrs. F. de Lizardi & Co. London, whom we address this day, and lodge a credit of £10,000 sterling.”</p> <p>Letter. — R. & J. Phillips to Bell, De Yongh & Co., dated the 15th of October, 1836. Extract as follows:—</p> <p>“ The invoice and bill of lading of silks are received. p2398.15.6 is credited to your account on the 31st of August, per Undine, and the citron was to be put on board the Delos. The silks are paying them a good profit, and we are pleased at it, as they cost high.”</p> <p>Letter. — R. & J. Phillips to Bell, De Yongh & Co., dated the 31st of December, 1836. Extract as follows:—</p> <p>“ Through our friend Derby, we received your duplicate favour of 19th Oct., and original of 22d, with invoices of lustrings and curtain silks per Ellen, amounting to p3221. 10, which you have taken to our debit, and shall be confirmed to in our books.”</p> <p>“Letter. — Bell, De Yongh & Co., to R. & J. Phillips, dated the 5th of April, 1837, (produced by the defendants.) Extract as follows:</p> <p>“ Annexed is a copy of what we last wrote you on the 3d inst., since when we have received letters from London, dated the 25th ultimo, stating that Lizardi & Co. had left in sufferance our two drafts for your account of the 11th and 14th of March, together £2,157, which consequently remain to your debit, and if not paid when due, will be returned with charges. A certain number of houses in London, chiefly connected with the United States, have been, it would appear, under the necessity of taking similar steps, from having extended their engagements beyond their means; and although the mischief arising from such unwise conduct must prove highly prejudicial to themselves and their connexions, the final result will, it is to be hoped, be a more wholesome and regular system.”</p> <p>Letter. — R. & J. Phillips to Bell, De Yongh & Co., dated the 28th of February, 1837. Extract as follows:</p> <p>“ The invoice of silks for Mr. Sartori shall be passed with those of the rags to your credit in conformity. We take note of your £2,700, and are glad that you have no occasion to make any more drafts on our account, as we can when money is 1 £ a 2 0-0 per month, do so much better without merchandise.”</p> <p>Letter. — R. & J. Phillips to Bell, De Yongh & Co., dated 14th March, a. d. 1837. Extract as follows:</p> <p>“ Some other plan must be adopted to pay for the silks for Mr. Sartori, as we are not opening any new credit in London.”</p> <p>Account sales of silks by the defendants.</p> <p>Upon the foregoing evidence the learned judge directed a verdict for the plaintiffs, subject to the opinion of the Court on the law arising on the whole evidence in the case, and with leave to move to enter a verdict for the defendants, if the Court should be of opinion that the law was with them.</p> <p>A motion was accordingly made to enter a verdict for the defendants. who had drawn several bills on the faith of it, and with especial reference to these silks. The law seems to be settled in England, that Lizardi & Co. were bound by their agreement to accept. Chitty on Bills, 217, &c. Powell v. Morrison, (1 Atkyns, 611.) Sel-wyn’s JV. P. 270, &c. Wynn v. Raikes, (5 East, 514.) Clark v. Cocke, (4 East, 57.) Potter v. Ray worth, {IB East, 417.) The rule has been almost every where recognised in the United States. Townsall v. Sumrall, (2 Peters, 181.) Coolidge v. Pay son, (2 Whea-ton, 66.) Van Reemsdyk v. Kane, (1 Gallison, 630.) M‘Evers v. Mason, (10 Johns. 207.) Mayhew v. Prince, (11 Mass. Rep. 54.) Banorgee v. Hovey, (5 Mass. Rep. 11.) Wilson v. Clements, (3 Mass. Rep. 1.) Goodri.ch v. Gorden, (15 Johns. 6.) Parker v. Greenleaf, (2 Wendell, 545.) Schimmelpenninck v. Bayard, (1 Peters, 283.) De Tastet v. Crousillat, (2 Washington's C. C. Rep. 132.) Boyce v. Edwards, (4 Peters, 122.) Lee v. Dick, (10 Peters, 482.) The cases show that it is sufficient if either from a communicated promise, or from circumstances, a third party was induced to give credit. Now in the first place, the credit here is equivalent to a payment; and therefore the right of stoppage did not exist. In Parsons v. Armor, (3 Peters, 428,) it is said, that “ a bill of exchange is the substitute for the actual transmission of money, by sea or land. Power therefore to draw on a house in good credit, and to throw the bills into the market, is equivalent to a deposit of cash in the vaults of the agent.” But supposing that it was no payment as between R. & J. Phillips and the plaintiff, yet it is so as regards the real defendant. The rule is, that if a creditor has two funds, he must take that the choice of which will not injure another. The real defendants here are the creditors under the assignment, who have no other fund than the assigned effects. It is of no importance in this view of the case that the Lizardis are creditors of R. & J. Phillips, since they are bound by their contract.</p> <p>2d. At all events, the plaintiffs had no right to stop these goods until after protest for non-payment. The plaintiffs themselves speak of the bills as being “ left in sufferance.” Non constat that they would not be paid. Under the circumstances of this case, the bills could not be considered dishonoured, until after the refusal of payment; and this seems to have been the view of the plaintiffs, from their letter of the 3d of April, and agreement of the 31st of May, 1837. Plere there is an alleged right to stop for non-payment, and an agreement to wait until the fact of non-payment is ascertained: which is an absurdity.</p> <p>3d. In point of fact there was not a sufficient stoppage of the goods. We admit that it is not necessary that possession should be taken formally. But a demand is necessary; which must be made, properly made, and of the proper person. In 2 Kent's Commentaries, 543, it is said, “ a demand of the goods of the carrier, or notice to him to stop the goods on an assertion of the vendor’s right by an entry of the goods at the custom house, ‘or a claim, and endeavours to get possession, is equivalent to an actual stoppage of the goods.” Walker v. Woodbridge, (Cooke’s B. L. 494.) JVorthey v. Field, (2 Esp. Rep. 613.) Miles v. Ball, (2 Bos. & Pull. 457.) Lett v. Cowley, (7 Taunton, 109.) The agreements between the parties do not alter the case, since there is an express reservation of all rights.</p> <p>' 1. Were Lizardi & Co. liable as acceptors of these bills 1 There is no evidence of their having confirmed this credit by any communication with the plaintiffs. The letters to R. & J. Phillips furnish no evidence of this. No authority has been produced to show that such an agreement as the Lizardis entered into amounts to an acceptance. There are two kinds of letters of credits. 1st. Where the vendor distrusts the vendee, and requires additional security. This is in the nature of a guaranty. 2nd. Where the vendor is to be reimbursed by a letter of credit. This implies no obligation on the drawee. Suppose a deposit in a bank. The bank is not liable beyond actual acceptance. The cases on the other side are all upon agreements by the drawee himself. The agent in London of the plaintiffs in this case obtained the opinion of counsel there, which was against the liah.ili.ty of, Lizardi & Co. [In this opinion (which was produced and read by“Mr. Meredith) the counsel cited Williams v. Everett, (13 East, 590.) Wharton v. Walker, (4 Barn. & Cres. 163.) Lilly v. Hays, (5 Adolph & Ellis, 548.) Fisher v. Miller, (1 Bingh. 150.) Gibson v. Minet, (2 Bingh. 7.)] The effect of the protest of non-acceptance is, that the bill was dis-honoured, and the drawee discharged. The object of a bill is negotiation. The plaintiffs had a right to a written acceptance on the bill. After protest, you can’t look to the drawee. Byles on Bills, 7 Term Rep. 440. 3 East, 93. Ambler, 399. 2 Term Rep. 63. 3 Term Rep. 119. 1 Starkie, 115. The defendants are not purchasers for a valuable consideration; but as assignees, stand in the shoes of R. & J. Phillips. 4 Campbell, 31. 1 Bos. & Pul. 563. 4 Wharton’s Rep. 500.</p> <p>2nd. The stoppage in this case was effectual in respect to time, manner, and persons. A general agent has power for this purpose. 1 Esp. 240. 2 Bos. & Pul. 457. 2 Term Rep. 63. 3 East, 93. Whitaker on Lien, &c., 171. 6 East, 371. There was an actual and sufficient stoppage. The yessel was on the high seas at the time of the failure of R. & J. Phillips; and the carrier was not accessible by notice. It does not appear where she was owned. It is said in all the books to be sufficient if there is a claim, demand, or notice. Ruck v. Hatfield, (5 Barn. & Aid. 632; S. C. 7 Eng. Com. Law Rep. 216.) Crawshay v. Eades, (1 Barn. & Cress. 181; S. C. 8 Eng. Com. Law Rep. 51.) Bariram v. Farebrother, (4 Bingh. 519 ; S. C. 15 Eng. Com. Law Rep. 79.) Wood v. Jones, (7 JJowl. & Ryl. 126 ; S. C. 10 Eng. Com. Law Rep. 274.) Dixon v. Yates, (5 Barn. & Adolph. 313 ; S. C. 23 Eng. Com. Law Rep. 86.) 1 Ésp. Rep. 240. 3 Chilly's Com. Law, 343. Whitaker on Lien, 166. Here the plaintiffs were disarmed by the conduct of the defendants. They made no objection that notice had not been given to the carrier.</p> <p>The plaintiffs are bona fide creditors ; and an antecedent debt is a sufficient consideration. Walker v. Geisse, (4 Wharton, 252.) This is not the case of a general assignment of all the debtor’s effects for the benefit of creditors generally.</p> <p>1. There is no difference in principle between the case of an advance of money on the faith of a general promise to accept, and an advance of goods on the same promise. The evidence is clear, that the engagement of Lizardis, was communicated to the plaintiffs, and that they relied upon it and trusted to it. The case of De Tastet v. Crousillat is clear upon this point, and the authority conclusive. But it seems that the opinion of counsel in England has been given against the liability of Lizardis. The reasoning in that opinion does not seem to be. very forcible. Nor are the cases cited by the counsel very much in point. In Williams:v. Everett, the money was remitted, with directions to apply" ’it to the payment of certain debts; and the person to whom it was remitted refused so to apply it. The principle stated in the case is contradicted bj Sharpless v. Welsh, (4 Dali. 279,) and it seems to be overruled in Lilly v. Hays, cited in the same opinion. In Wharton v. Walker, the decision turned mainly on the form of aclion. Fisher v. Miller seems to be very slightly applicable; and in Gibson v. Minet, there was a revocation before any act was done by the party. It is said there was no acceptance. This amounts to nothing if Lizardis were bound to accept. Ontario Bank v. Worthington, (12 Wendell, 593.) But the plaintiffs were not bound to present for acceptance. This was the case of a bill payable after date, not after sight; in the latter case only it is necessary to present for acceptance. Chitty on Bills, 299. It is said that it was an advantage to the plaintiffs to have the name of the acceptor. But they had this already by the general letter of credit. Here the question is of the rights of the parties at the time of the arrival of the vessel. Vertue v. Jewell, (4 Campb. 31.) Davies v. Reynolds, (1 Stark. JV. P. 115; S. C. 2 Eng. Com. Law Rep. 320.) Several cases have been cited to show that an acceptance of a bill by the vendee does not impair the right of stoppage ; but there is no case of an acceptance by a third person, as this is.</p> <p>2. It does not appear that the defendants had sufficient authority from the plaintiffs to stop the goods. In most of the cases cited there was an assignment of a bill of lading to the agent. The evidence proves nothing more than a mere claim upon the vendees. There is no case in which this was held to be sufficient. In the cases produced on the other side the claim was on the carrier. Here the defendants entered the goods at the custom-house, which amounted to a taking possession.</p>

<p>One died intestate in 1831, seized of real estate, leaving a widow, and brothers and sisters, hut no children. Upon the petition of the brothers and sisters, the Orphans’ Court awarded an inquest “ to ascertain whether the real estate can with propriety be divided among the widow and legal representatives of the deceased, in such manner as to give the widow the one-half, including the mansion-house.” The inquest returned, that the real estate could not be divided among the widow and legal- representatives of the deceased “ in such manner as to give the widow the onc-bialf, including the mansion-house but made no appraisement; and no steps were taken to obtain an appraisement afterwards. The widow remained in possession after the death of her husband, and received the rents and profits : Held, that the brothers and sisters of the intestate could not maintain ejectment against her to recover the land under these circumstances.</p>

<p>Where a verdict has been taken at Nisi Prius, subject to the opinion of the Court on the evidence, the Court will not order judgment to be entered for the plaintiff under the xvmth rule, unless some unforeseen occurrence has taken place which has put the debt in jeopardy by an increased risk of the defendant’s insolvency ; which must be specially shown by the plaintiff. The mere circumstance that the defendant’s real estate is incumbered, is not sufficient, unless it be shown that the incumbrance did not exist at the time of the trial, or that the defendant is about to incumber it further.</p>

<p>IN ERROR.</p> <p>Error to the Court of Common Pleas of Pike County.</p> <p>On the return of the record it appeared that James Barton, and Sarah his wife, brought an action of ejectment against Nathan Wells, to recover a tract or piece of land situate in Upper Smith-field township, in the said county of Pike, containing ten acres, or thereabouts.</p> <p>The cause was tried before Scott, (President) when various deeds, records, and papers were given in evidence on the part of the plaintiff and defendant respectively. The contents, however, of these documents were not stated in the bill of exceptions; nor were they, except in one instance, annexed to the record.</p> <p>The charge of the Court, to which exception was taken, was as follows:</p> <p>“ The plaintiffs claim the land in controversy in right of Sarah Barton, late Sarah Biddis, as one of the children and heirs of John Biddis the elder, deceased; and their right to recover any portion of the land may depend upon the construction to be given to the agreement executed between James Barton, John Clark, George Biddis and John Biddis, on the 24th of October, 1820. We learn from the testimony of David Wells, Hugh Ross and John Brink, and from the record exhibited, and from the terms of the agreement itself, that difficulties and disputes existed between the members and connexions of the Biddis family; and from the witnesses named, that the right to the very laud in dispute was in controversy between James Barton and George and John Biddis; and from the testimony of John Brink that the object of the agreement of the 24th of October, 1820, was to finally settle all their family disputes; that it was at the instance of John Biddis, then on his death-bed, that the family were assembled, and that agreement entered into, that he might die in peace. From all the circumstances under which the said agreement was entered into, from its object, the settlement of family disputes, and from the terms of the agreement itself, the Court are of opinion, that it should at least be construed as a covenant on the pai’t of Barton not to sue, and that upon this ground, in point of Jaw, the plaintiffs ought not to recover in this suit.”</p> <p>A verdict was given for the defendant; and the plaintiffs took a writ of error, and assigned the following errors.</p> <p>“ 1. The Court erred after admitting parol evidence to explain and extend a written contract concerning other lands and other objects to the land in controversy, in charging the jury from all the circumstances under which the said agreement was entered into, from its object, the settlement of family disputes, and the terms of the agreement itself, the Court are of opinion, that it should at least be construed as a covenant not to sue; and that upon this ground, in point of law the plaintiff ought not to recover in this suit.</p> <p>2. The Court erred in taking the decision of the facts from the jury.”</p>

<p>1. An agreement between two executors, that one should receive two-fifths of the commissions charged by the other, who settles a separate account, is not illegal, if it appeal* that the executor receiving the two-fifths, transacts part of the business of the estate.</p> <p>2. A. and B. were executors of the will of C. A. died, and his administrators settled a separate account, in which they charged five per cent, commission on the money that passed through the hands of A., and claimed a balance to be due to him by the estate. This account was duly confirmed. Afterwards B. died, and his administrator settled an account, in which he charged the estate with the balance due upon the account settled by A.’s administrators, together with interest upon it. This account was referred to auditors, before whom the administrator of A. appeared and testified, that by agreement between A. and B., the latter was to receive two-fifths of the commissions to be charged by A., and that he was willing to endorse on the foot of the account filed by him, a declaration, that of the balance due, B.’s estate was entitled to a certain proportion. The auditors allowed the administrator of B. credit for this proportion with interest, and the Orphans’ Court confirmed the report: Held, that there was no error in this.</p> <p>3. A testator authorised and directed his executors, and the survivor of them, to lay out a certain tract of land into lots, and to sell and dispose of the same, and he gave the proceeds to certain nephews and nieces, who were also residuary legatees, to be equally divided between them. The executors soldjthe lots and received the proceeds: Held, that these proceeds were received by them as trustees, not as executors, and therefore ought not to be brought into the administration account.</p> <p>4. A testator devised a certain ground-rent to A., B. and C. (whom he afterwards appointed executors,) and their heirs, and in case of the extinguishment of the ground-rent agreeably to a provision in the deed, he directed that the principal thereof should be paid, and go to the said A., B. and C. and the survivors and survivor of them, and the executors and administrators of such survivor, in trustto invest the same upon good security, &c., and to pay the interest to his nephew for life, and after his death for the use of his children. A. renounced; B. and C. received letters testamentary, and acted as executors and trustees. B. died, and afterwards C. died, having shortly before his death received the principal money of the mortgage, and invested a part of it; leaving a balance at his death uninvested. D. became administrator to the goods of C. and received the balance : Held, that he received it as trustee, and not as administrator of C., and therefore that he was not chargeable with it as administrator, and could not, as such, settle an account with the cestui que trust. And, it seems, that it was his duty to invest the balance in a reasonable time, in conformity with the directions in the will; and having deposited the money in a bank, though to his 'credit as administrator, and though he had not made use of it, he was chargeable with interest upon it.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit, brought by John B. Trevor against Thomas J. Perkins.</p> <p>The circumstances upon which the action was founded appeared to be as follows:</p> <p>On the 10th of January, 1827, the legislature of the state of Ohio passed an act to incorporate a company called “ The Pennsylvania and Ohio Canal Company;” for the purpose of constructing a canal from the Ohio State Canal to the Pennsylvania Canal, at or near Pittsburgh, or at some other suitable point. This act was confirmed by the legislature of Pennsylvania, on the 14th of April, 1827; and various supplements were afterwards passed. The material1 provisions of these acts were the following :</p> <p>“ Sect. 13. The said corporation shall be, and is hereby autho-rised to raise sufficient funds for the accomplishment of the objects; aforesaid; and for that purpose, the persons named in the first section of this act, or a majority of them, shall be commissioners, whose duty it shall be, so soon after the taking effect of this act, as a majority of them shall judge proper, to cause books to be opened at such times and places as they shall think fit, in the states of Ohio and Pennsylvania, and elsewhere, under the management of such persons as they shall appoint, for receiving subscriptions to the capital stock of said company, each share to be of the amount of one hundred dollars, and each subscriber to be a member of said corporation for all purposes; and public notice shall be given, in such manner as may be deemed advisable by the said commissioners,, of the times and places of opening such books; and fhe said commissioners, or a majority of them, may prescribe the form of said subscription; and whenever the sum of five hundred thousand dollars,, or the greater part of the stock of said company shall have been subscribed, it shall be the duty of said commissioners, or a majority of them, to call a meeting of the stockholders, by causing notice to be published in one or more newspapers in general circulation in the respective places in which the books shall have been opened, and stock subscribed, at least twenty days previous thereto, of the time and place of such meeting, which shall be at some convenient town, or place, near the route of the contemplated canal; at which meeting the stockholders who shall attend for that purpose, either in person, or by lawful proxy, shall elect by ballot seven directors, who shall hold their offices until the expiration of one year, and until others shall be chosen in their places; and the said commissioners shall be inspectors of the first election of directors of the said corporation, and shall certify under their hands, the names of those duly elected, and shall deliver over to them the said certificates and subscription books; and at said election, and at all other elections, or voting of any description, every member shall have a right to vote by himself, or proxy duly authorised in writing, and each share shall entitle the holder to one vote; and that the management of the concerns of the said corporation, shall be entrusted to seven directors, to be elected annually by the stockholders, by ballot; and that the directors first chosen, and such directors as shall thereafter be chosen, at any subsequent election, shall imme-mediately thereafter meet and elect one of their number, who shall be president thereof, until another election, and also elect a treasurer and secretary, who may be removed at the pleasure of the said president and directors, and others elected in their places; and that a majority of the said directors shall constitute a board, for every purpose within the provisions of this act.”</p> <p>“ Sect. 15. The books of subscription shall remain open as long as the president and directors of said company shall see fit; and each subscriber shall be bound to pay, from time to time, such instalments on his stock, as the said president and directors may lawfully require, they giving at least thirty days previous notice, of the time and place of making the payments required, in at least one newspaper in general circulation in each of the counties through which the said canal may pass; but no assessment shall ever be made, so as to render any subscriber liable to pay more than one hundred dollars for a share. If, however, after the closing of said books, or at any time, it shall appear that sufficient funds have not been raised, the president and directors of said company, or its officers duly authorised for that purpose, may, at any time, and from time to time, raise the necessary funds, by creating and selling additional shares, in such manner and upon such terms, as the said president and directors shall prescribe; and the holders of such additional shares shall thenceforward be members of said corporation for all purposes.</p> <p>Sect. 16. If any subscriber shall neglect to pay his subscription, or any portion thereof, for the space of thirty days after he is required so to do, by the said president and directors, notice having been given, as required in this act, the treasurer of said corporation, or other officer duly authorised for that purpose, may make sale of such share or shares, at public auction, to tne highest bidder, giving at least thirty days previous notice thereof, in some newspaper in general circulation at the place of sale; and the same shall be transferred by the treasurer, in the manner hereinafter provided, to the purchaser, and such delinquent subscriber shall be held accountable to the corporation for the balance, if his share or shares shall be sold for less than the amount remaining due thereon, and shall be entitled to the overplus, if the same be sold for more than the amount so remaining due, after deducting the costs of sale.</p> <p>Sect. 17. The stock of said corporation, shall be deemed and considered real estate; and any share or shares of any stockholder, may be transferred by deed duly acknowledged, and recorded by the clerk of said corporation, in a book to be kept for that purpose, which book or books shall at all reasonable times, during the usual hours of transacting business, be open to the examination of any person having in his possession any demand against said company; and the treasurer is hereby authorised to make transfers in like manner, of the shares of members sold, according to the provisions of the last preceding section of this act.”</p> <p>Subscription books were opened in the city of Philadelphia, and the plaintiff became a subscriber for one hundred shares on the 27th of April, 1835, and signed the following paper.</p> <p>“ We whose names are hereunto subscribed, each of us do promise to pay to the directors of the Pennsylvania and Ohio Canal Company, the sum of one hundred dollars for every share of stock set opposite our respective names and by us respectively subscribed, in such manner and proportions, and at such times and places as shall be directed and determined upon by the said directors, in pursuance of an act authorising the governor of this commonwealth to incorporate the Pennsylvania and Ohio Canal Company.</p> <p>In witness whereof, we have set our hands, this twenty-seventh day of April, a. d. 1835, in the city of Philadelphia.”</p> <p>The plaintiff paid five dollars on each share at the time of subscribing; and two certificates (Nos. 112 and 113) for fifty shares each were issued to him.</p> <p>On or about the 24th of April, 1835, the defendant Perkins applied to the plaintiff for the purchase of these shares. He agreed verbally to give ten or eleven dollars per share for the five paid. The witness for the plaintiff who proved this, stated that he had a faint impression that there was something said about liability for instal-ments. Perkins then gave the plaintiff his check of the same date for eleven hundred dollars, which was paid; and the plaintiff gave him a power of attorney in the following form :</p> <p>“ Know all men by these presents, that I, John B. Trevor, for value received have constituted and appointed, and do hereby irrevocably constitute and appoint my true and lawful attorney for me, and in my name to transfer and assign to Thomas J. Perkins one hundred shares in the capital stock of the Pennsylvania and Ohio Canal Company upon which five dollars per share have been paid, as per the receipt of B. Chew, Jr., Thomas Biddle and Wm. Boyd, a committee of commissioners, dated 27th of April last, Nos. 112 and 113 hereto annexed, subject to the payment of the remaining instalments by the said Thomas J. Perkins, or his assigns, as the same may be called in, and I do hereby further empower my said attorney to do and. execute whatever may be needful and necessary to carry this authority into full effect, and furthermore to substitute and appoint one or more persons under him with like power, hereby giving to my said attorney full power, strength and authority in the premises, and ratifying and holding for firm and effectual all that he shall lawfully do therein.</p> <p>Witness my hand and seal, this 9th day of May, a. d. 1835.</p> <p>Signed, sealed, and delivered in the presence of L. Knowles, Jr.</p> <p>N. Knowles. Jiro. B. TrevoR. [ Seal. }</p> <p>“ (Endorsed) Transfer of 100 shares of the Penna. and Ohio Canal. J. B. Trevor to -—</p> <p>When the power was drawn or executed did not exactly appear, but it would seem that it was about the time of receiving the check -or within a few days afterwards, and was a part of the arrangement. When received by the defendant it was filled up with his name as above. On the 28th of May, 1835, the defendant sold these shares to Hallowed & Co. at four dollars fifty cents for five dollars paid; and the power of attorney and two receipts for the original payments by the plaintiff were delivered over to them; the name ■of the defendant having previously been erased by him.</p> <p>On the 22d of May, 1835, the stockholders had agreed to call for the second instalment upon the stock; and notices were published in the United States Gazette at Philadelphia, on the 26th of May, and on the 3d of June, 1835, at the places where the canal passes, calling for payment of this instalment on the 3d of July. The instalment on the one hundred shares sold by the plaintiff to the defendant was not paid by the defendant or his vendee.</p> <p>On the 11th of March, 1836, the plaintiff paid the attorney for the company the sum of five hundred dollars, being the amount due for the second instalment on these shat'es, which had been sold at ■auction by the company, under the 16th section of the charter. This action was brought for reimbursement.</p> <p>The case was tried before Pettit, President, on the 28th of October, 1837, when, after testimony had been given to the foregoing effect, the plaintiff’s counsel requested the Court to charge—</p> <p>“ 1. That the transfer in question by parol and payment of the check on the 29th of April, 1835, made the defendant liable to the plaintiff for the second instalment, after the defendant had declined to pay, and the plaintiff was compelled to pay it.</p> <p>2. That the acceptance of the defendant from the plaintiff, of the letter of attorney of the 9th of May, 1835, renders the defendant liable for the conditions contained in the same.</p> <p>3. That such liability cannot be altered by the defendant without the consent of the plaintiff.</p> <p>4. That the erasure of the defendant’s name by the defendant, without the consent of the plaintiff, is void, so far as regards the plaintiff</p> <p>5. That the parol agreement and the delivery of the papers constituted a valid contract between the plaintiff and defendant, and a valid transfer of the stock, though not according to the terms of the act of incorporation.”</p> <p>Thtf'Iearned judge after stating the case proceeded in substance as follows;</p> <p>“ The defendant denies that in point of fact the plaintiff ever was committed to the company for the sum he paid. The defendant denies that the proper steps were taken by the company, as to the call for the second instalment, or as to the thirty days notice, or as to the public advertisement. There is evidence on all these matters for the consideration of the jury, but the great object of this cause would not be accomplished if it went off on this point. Assuming for the argument, that all that ought to have been done by the company was done, and that what the plaintiff paid, he paid rightly, yet the defendant alleges, that on the true construction of the charter, he is not liable to the payment of the present demand; and that he has made no agreement beyond the charter. This brings up the main question of this; and it is understood of many other causes. I shall consider the subject in two aspects.</p> <p>1. On the act of incorporation alone, supposing the paper of the 9th of May, 1835, to be a mere power of attorney and nothing more.</p> <p>2. As to the alleged necessary import of the paper of the 9th of May, 1835, as matter of law binding the parties, and calling for a decision by the Court.</p> <p>We shall then be able to see whether there is any thing connected with that paper which presents such a mixed question of law and fact as requires the determination of the jury.</p> <p>First. It is necessary to consider the 15th, 16th and 17th sections of the charter. (The judge here read them.)</p> <p>Now this stock is to be deemed and considered as real estate; and transfers of it may be made by deed duly acknowledged. The subsequent alteration of the charter does not reach the case now before us. The first payment having been made, the stock was to be deemed as real estate, subject to certain payments of instalments at the call of the company. Then as real estate, what is the law applicable to the subject. The first contractor is liable. He may make a conveyance, the estate being still subject to the payment of instalments. As a covenant runs with the land, so this was an undertaking running with the property. As a covenant running with the land binds the original covenantor by the privity of contract, and any actual holder by privity of estate; so here, the undertaking or agreement running with the stock, binds the original subscriber by the privity of contract, and the actual holder by privity of estate. It is conceded that if the defendant'had a transfer from the plaintiff, so as to raise the question at all, Hallowed had as valid a transfer from the defendant. In each instance a verbal compact existed, accompanied by a delivery of the scrip. The cause has been treated as if the plaintiff had made a deed to the defendant, and the defendant another to Hallowed. While the plaintiff contends that his omission to make a deed to the defendant, does not defeat his action, he cannot claim any advantage from the omission of the defendant to make a deed to Hallowed — nor has he done so. By the rule of law then, just stated, the defendant has avoided responsibility to the company, and of course to the plaintiff in this suit.</p> <p>Second. We come now to the power of attorney with the clause on which the plaintiff relies. If this clause made a difference in point of law, the question of delivery and acceptance of the paper would be important. But admitting it to be ascertained that the plaintiff delivered the paper to the defendant, and that the defendant accepted it without alteration, does it change the contract already made — the contract based upon the charter? This depends upon the words appearing on the face of the paper; and taking the paper in connection with the charter, there is presented a question of law for the Court. The instrument appoints, to transfer to Thomas J. Perkins, one hundred shares, &c., “ Subject to the payment of the remaining instalments by the said Thomas J. Perkins, or his assigns, as the same may be called in.” This language is quite clear to me. If it can be construed in perfect consistency with the charter, it ought to be so construed. Before any change of contract can be imputed to the parties, the intention to make it must be manifest. If any alteration was contemplated, it is to be assumed that it would have been plainly expressed. If the clause was merely language of explanation, or reference, or qualification, it must not be perverted into language of contract. What was the charter? Each instalment, after passing by the first subscriber, was to be paid by the actual holder of the stock at the time of such instalments being called in. The defendant took the stock with a personal obligation resting upon him, commensurate only with the time of his holding it; an undertaking to pay if he held, when instalments were called in and made payable; but with an understanding that if he assigned before that, then his assignee, and not himself, was to be liable to pay; and so on successively. This construction harmonizes with the act of incorporation óf the company. It is consistent with the compact previously made by the parties. It gives full effect to every part of the instrument. Perkins or his assignee is to pay, as the circumstances of the case under the charter may happen to require: Perkins, should one state of things known to the charter, happen to exist when an instalment is made payable, or his assignee, whoever he may be, should another state of things, also known to the charter, happen then to exist. This view also comports with good faith; as it rejects, in regard to either party, a design to fix by the mere form of words, a material stipulation which had not existence in the intention of the parties.”</p> <p>The judge then read the points presented by the plaintiff’s counsel, and answered each of them according, to the principles already laid down, and added, that upon the law of the case the verdict should be for the defendant.</p> <p>The jury found for the defendant, according to the charge; and the plaintiff having taken a bill of exceptions, and removed the record to this Court, made the following assignment of errors.</p> <p>“ Because the Court charged the jury — ■</p> <p>1. That the transfer in question by parol and payment of the check on the 29th of April, 1835, did not make the detendant liable to the plaintiff for the second instalment, after the defendant had declined to pay, and the plaintiff had been compelled to pay it.</p> <p>2. That the acceptance by the defendant from the plaintiff of the letter of attorney of the 9th of May, 1835, does not render the defendant liable for the conditions contained in the same.</p> <p>3. That the liability of the defendant in the said case could be altered without the plaintiff’s consent.</p> <p>4. That the erasure of the defendant’s name, in the letter of attorney, by the defendant, without the consent of the plaintiff, was valid and binding on the plaintiff</p> <p>5. That the parol agreement and delivery of the papers, did not constitute a valid contract between the plaintiff and defendant, nor a valid transfer of the stock.</p> <p>6. That under any view of the case, the plaintiff was not entitled to recover.”</p> <p>1. It is admitted that the plaintiff as an original subscriber, was always liable to the company; but there is a cumulative remedy. West Philadelphia Canal Co. v. Innes, (3 Wharton, 198.) Hartford, Spc. Co. v. Kennedy, (12 Conn. Rep. 499.) Union Canal Co. v. San-som, (1 Binn. 75.) In the case of the Huddersfield Canal Co. v. Buckley, (7 Term Rep. 36,) it was hold, that an original subscriber was not liable for any call made after assigning his share.</p> <p>2. The transfer in this case was certainly good, as between the parties, though not according to the prescribed form ; and may also be considered binding on the company. Angel on Corporations, 316, 368. Quiner v. Marblehead Ins. Co. (10 Mass. 476.) Sargent v. Franklin Ins. Co. (8 Pickering, 90.) Bank of Utica v. Smalley, (2 Cowen, 770.) Bates v. JV. Y. Ins. Co. (3 Johns. Gas. 238.)</p> <p>3. The words, “ subject to the payment of the remaining instal-ments,” create a covenant by the defendants to pay them, though in a deed poll. It was a question of fact for the jury upon the contract, which was partly parol and partly written. Tanner v. Kearney, (17 Serg. & Rawle, 94.) Campbell v. Shrum, (3 Watts, 60.) , In Steward v. Wolveridge, (9 Bing. 60; S. C. 23 Eng. Corn. Law Rep. 262,) it was held, that an assignee who takes from a lessee leasehold premises by indenture endorsed’ on the lease, “ subject to the rent reserved in the lease,” is liable in covenant to the lessee for rent, which the lessee has been called on by the lessor to pay, after the assignee has assigned over.</p> <p>1. The defendant is not liable upon any construction that may be given to the different acts of assembly, incorporating the Pennsylvania and Ohio Canal Company. By the seventeenth section of the .charter, the stock in question is deemed and considered real estate. Not only is it so characterised in the act of incorporation, but the mode by which it is to be transferred is that which is alone applicable to real property, viz. by deed duly acknowledged. The original subscriber is the first contractor; he is bound to the company, and is liable by reason of the privity of contract; any holder would be bound by privity of estate. Spencer’s Case, (6 Coke, 16 ; S. C. Law Library, for January, 1838, 17 ; Smith’s Selection.) 1 Bos. & Pull. 21. 2 Alkyns, 546. 3 Campbell’s Rep. 394.</p> <p>2. The transfer of the 9th of May, 1835, does not create such a contract as will make the defendant liable. The words “ subject to,” &c. are words of condition and qualification, and not words of contract. Rolle’s Abridgement, title Covenant, pi. 52, 53. Stainer v. Moms, (1 Vesey & Beames, 8.) Burnett v. Lynch, (5 Barn. & Cres. 589 ; S. C. 12 Eng. Com. Law Rep. 327.) Chancellor v. Poole, (2 Douglas, 754.) The case of Wolveridge v. Steward, cited on the other side, was reversed in the Exchequer Chamber. 3 Moore & Scott, 561 ; S. C. 30 Eng. Com. Law Rep.. 316. Herbaugh v. Zentmeyer, (2 Rawle, 159.)</p> <p>cited Sargent v. Essex Marine Co. (9 Pickering, 202.) Lutw. 127. 2 Keble, 189, pi. 35. 2 Str. 1221. Camb. 192. 1 Salk. 82. Sugden on Vendors, 118. 1 Campbell, 412. 12 Johns. 418. 13 Pickering,!5.</p>

<p>IN ÉRRÓK.</p> <p>Error to the District Court for the City and County of Philadelphia, to' remove the record of an action on the case, brought by John Knorr against the Philadelphia, Germantown and Norristown Rail Road Company.</p> <p>The action was brought to recover damages for refusing to make a road or causeway under or over an embankment placed by the defendants on the lands of the plaintiff.</p> <p>By the 17th section of an act of assembly passed on the 17th of February, 1831, to incorporate the said company, it was provided;</p> <p>“ That for the accommodation of all persons owning or possessing land through which the said rail-road may pass, and to prevent inconvenience to such persons in crossing or passing the same, it shall be the duty of said company, when required, to make or cause to be made a good causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of. such lands to cross or pass over or under the same with wagons, carts, and implements of husbandry, as the occasion may require: Provided that the said company shall in no case be required to make or cause to be made more than one causeway through each plantation or lot of land for the accommodation of any one person owning or possessing land through which the said rail-road shall pass; and when any public road shall cross the said rail-road, the persons owning or possessing land through which the said joad shall pass, shall not be entitled to make such requisition on said company ; and the said causeway or causeways when so made shall be maintained and kept in l'epair by the said company; and if the said company shall refuse pr neglect to make such causeway or causeways, or when made, to keep thé same in good repair, when duly notified thereof, the said company shall be liable to pay to any person grieved thereby all damages sustained by such person in consequence of .such refusal or neglect, to be sued for and recovered before any magistrate, or any court having any cognizance thereof; and the service of process on any officef or agent of said company shall be as good and available in law, as if served on the president thereof.”</p> <p>On the trial, before Pettit, (Pres’t) on the 25th of January, 1838, it was proved or admitted, that the defendants had in the year 1833 laid out their rail-road upon and over the land of the plaintiff, in Germantown township, in the county of Philadelphia, west of the Germantown turnpike-road, and had erected and constructed an embankment thereon, by means whereof the plaintiff was prevented from passing from one part of his farm to another, as he otherwise would have done; but the defendants never completed their rail-road on the plaintiff’s land;</p> <p>It was also proved, that on the 2nd of June, 1834, the plaintiff required the defendants to make or cause to be made a good and sufficient causeway or road, to enable him, and persons in his employ, to pass over or under the same road, within thirty days from the date thereof; and that the defendants had omitted and refused to make such road.</p> <p>By an act of assembly, passed the 8th day of February, 1834, sect. !, the company was authorised to construct, continue or extend the line of their rail-road from a point on the main line of said road, at or near Robeson’s Mill, on the Wissahickon creek, in the township of Roxborough, to intersect that part of the road made from Philadelphia to Germantown, and to make and lay a lateral rail-wmy to branch off between Schuylkill and Norristown: “Provided that the branch line to Germantown shall terminate at a point one hundred yards west of the main street of Germantown; and that the company shall be released from making and extending the said .rail-road from the said termination to Rob.eson’s Mill, aforesaid.” And by the fourth section it was provided, that “ it shall be lawful .within one year after the location and commencement of the work on the line from Robeson’s Mill to the old line of the said railroad, for any person or persons owning land west of the said termination of the said rail-road near the main street of German-town, which may have been ceded to the said rail-road company by amicable arrangement, either gratuitously, or for an amount of damages agreed on, or for damages assessed by a jury, to notify the president of the said rail-road company, that he, she or they are ready amicably to settle, or value the damages to them in consequence of the diversion of the main route of the said rail-road, by mutual agreement between the president and manager’s of said railroad company, and said landholder or holders; and on refusal or neglect of said president and managers to unite with them in making such agreement, or in case of non-agreement between said parties, then the person or persons may apply to the judges of the Court of Common Pleas of the county wherein the said land lies, and the said judges shall forthwith appoint five judicious persons residing in the said county, to examine the premises, and award such additional damages as they may determine, after taking into consideration the amount of damages already paid, and the advantages to be derived by the landholders by the reversion in fee simple of the said lands to the said landholder or holders; and the said award shall be entered in the prothonotary’s office in the said county, and have the immediate effect of a judgment against the said company; and the costs and expenses of the said jury shall be paid by the said company, and the award of the said jury shall be final: Provided,' that in all cases where the lands have been taken possession of by said company, between the said termination at Germantown and the point of junction with the main line, re-assessments shall be made in the manner prescribed for that part lying west of said termination near Germantown, and payment (if any should be awarded) shall be made in like manner; provided that there shall be no reversion of lands to the landholders; and the assessments shall be made on no other principle than the diversion of the main line of the said railroad, and consideration of damages already paid: and provided further, that the award of the said juries shall be paid within ninety days after the confirmation aforesaid. And it shall be lawful for the said Court of Common Pleas, on application to them made by any person or persons having obtained re-assessments of damages under this act, and who are aggrieved in the premises by the non-payment of the same, to issue an injunction on the further proceedings of the said company, between Robeson’s mill, and the junction of the old line aforesaid; and any further proceedings on that part of the road shall be illegal; and any attempts of the agents of the said company to proceed with the further progress of that part of the road before the said judgment shall bé satisfied, shall be deemed a misdemeanor, and punished by fine and imprisonment, at the discretion of the court aforesaid.”</p> <p>By the 5th section it was provided that “ So much of any act heretofore passed, as is hereby altered or supplied, is hereby repealed.”</p> <p>The Court instructed the jury, that the plaintiff was not entitled to recover damages by reason of the omission and refusal of the defendant to make such road or causeway: that the plaintiff had mistaken his remedy : that by the provision of the act of the 8th of February, 1834, the defendants, on and after the second of June, 1834, were n'ot bound to make a road or causeway, as required by the plaintiff, but were therefrom forever discharged.</p> <p>The plaintiff excepted to this charge; and the jury having found for the defendants, the plaintiff removed the record to this Court, and assigned the following errors.</p> <p>“ 1. The Court charged the jury, that by the provisions of the act of assembly of 8th of February, 1834, the defendants on and after the 2d of June, 1834, were not bound to make a road or causeway to enable the plaintiff to pass over or under the embankment raised and constructed by the defendants on his land, but that the defendants were therefrom forever discharged.</p> <p>2. The Court charged the jury that the plaintiff was not entitled to recover damages by reason of the omission and refusal of the defendants to make a road or causeway to enable him to pass from one part of his plantation to the other.”</p>

<p>IN ERROR.</p> <p>These cases were brought into this Court by writ of error to the District Court for the City and County of Philadelphia, and were argued together.</p> <p>The first was an action of assumpsit, brought to June term, 1838, by Timothy M. Bryan, John Rodman, and Isaiah B. Heylin, trading as Bryan, Rodman & Heylin against Samuel Comly, as acceptor of a bill of exchange drawn by Rising & Harris.</p> <p>The second action which was brought to September term, 1838, was brought by the same plaintiffs against Rising & Harris, the drawers of the bill.</p> <p>The plaintiffs filed in each action a copy of the bill of exchange on which the suit was brought, and which was as follows:</p> <p>“$500 . Nashville, March 3d, 1837.</p> <p>Ninety days after date pay to the order of J. H. Fisher, five hundred dollars, value received, and charge the same to account.</p> <p>Rising & Harris.</p> <p>To Mr. Samuel Comly. Philadelphia. No. 759.</p> <p>Accepted, payable at Philadelphia Bank. Endorsed by J. H. Fisher, Richmond, Fisher & Co., Bryan, Rodman & Heylin.”</p> <p>In the case of Bryan v. Comly, the following affidavit of defence was filed on the 13th of June, 1838.</p> <p>“Samuel Comly, the defendant, being duly affirmed, doth depose and say, that there is a just and legal defence to the whole of the demand in this case; that the nature and character of said defence are as follows: to wit, that said suit is instituted upon a draft drawn by Rising & Harris of Nashville, on deponent and accepted by him for five hundred dollars ; that said draft was endorsed to the plaintiffs; that after the same was due, it was forwarded by them to Douglass, Wood & Co., of Nashville ; that said Douglass, Wood & Co., were indebted to the drawers of said draft in a much larger sum; and further, said Douglass, Wood & Co. on the 15th of January, 1838, agreed with said Rising & Harris, to accept in payment for the same, any of our (their) endorsements or other liabilities, or in such other mode as may be most convenient to you (Rising & Harris,) as will appear by the following extract from their letter to Rising & Harris, to wit.—</p> <p>‘Nashville, 15th January, 1838.</p> <p>Messrs. Rising & Harris, Philadelphia.</p> <p>Gentlemen, your favour of the 8th is this moment received and has had our attention. We hold one only of your bills on S. Comly for five hundred dollars, and will receive payment in any of our endorsements, or other liabilities, or in such other mode as may be most convenient to you.’</p> <p>Deponent further saith, that in consequence of said agreement between Douglass, Wood & Co. with Rising & Harris, the drawers of said bill, that he the defendant, the acceptor of said bill, has settled with Rising & Harris, the drawers thereof, and has no funds in his hands belonging to them.</p> <p>Sam. Comly.”</p> <p>“ David B. Rising, one of the firm of Rising & Harris, being dqly affirmed, doth say, that he has read the foregoing affidavit of S. Comly, and that the facts therein set forth are true.</p> <p>D. B. Rising.”</p> <p>On the 6th day of August, 1838, on motion of the plaintiff’s attorney, the Court granted a rule on the defendant to show cause-why judgment should not be entered for want of a sufficient affidavit of defence.</p> <p>On the argument of the above rule, the Court allowed the defendant to file an additional affidavit of defence ; which was done on the 15th of September, 1838, in the words following, to wit:</p> <p>“ Samuel Comly, the defendant, being duly affirmed, further saith that the plaintiffs called upon him for the payment of the acceptance referred to in this deponent’s affidavit, filed in this case on the 13th day of June, 1838. Deponent declined paying it, stating that the drawers, Rising & Harris, had claims against the holders of said draft prior to its coming into the hands of the present plaintiffs, and to a much larger amount than said draft, and that the deponent himself has claims against the same• parties, to-a much larger amount. That deponent next morning called at the counting-room of the plaintiffs when they opened their account-book and showed to deponent, an entry therein in which said draft had been charged back by them to the endorsers, by whom it had been forwarded to them for collection. That said charge was made prior to the arrangement referred to in deponent’s prior affidavit, and in that of D. B. Rising, at the suit of the same plaintiff, which latter he prays may be considered as a portion of this, statement of defence.</p> <p>Sam. Comly.”</p> <p>In the case of Bryan v. Rising & Harris, the following affidavit of defence was filed.</p> <p>“David B. Rising, having been duly sworn according to law, doth depose and say, that he has a just and true defence to the plaintiffs’ claim urged in this case; the nature and character are as follows. This suit is instituted upon a draft for five hundred dollars, which was held, as deponent has learned since the same was due, by Douglass, Wood & Co. of Nashville, Tennessee. These holders agreed with the defendants to receive their liabilities which they might hold, in payment of said draft, as will appear by the following extract from their letter to the defendants, dated Nashville, January 15th, 1838.</p> <p>1 We hold one only of your bills on S. Comly for five hundred dollars, and will receive payment in any of our endorsements or other liabilities, or in such other mode as may be most convenient to you.’ At the time of writing this letter, said Douglass, Wood & Co., then holding said bill, which is the one now sued out in this case, were to a much greater amount, indebted to these defendants; and are still so indebted to them: and defendants are willing and offer to deduct this draft from their claim. The said draft if now held and owned by the plaintiffs, must necessarily have been transferred to them by Douglass, Wood & Co. since the date of the above letter.</p> <p>D. B. Rising.”</p> <p>By a copy of the protest for non-payment, filed on the 1st of October, 1838, it appeared that the bill was presented for payment on the 3d of June, 1837, at the request of “the Girard Bank in the City of Philadelphia, the holders of the bill,” &c.</p> <p>The District Court after argument, ordered judgment to be entered in each case for want of a sufficient affidavit of defence, on the 25th of September, 1838.</p> <p>Writs of error were then taken, and on the return of the records, the following specifications were filed.</p> <p>“ 1. The Court erred in deciding that the facts laid in the affidavits would not, if proved before a jury, have been a full defence to this suit.</p> <p>2. The Court erred in deciding, that if such an arrangement was made, as is stated in the affidavit, Comly was not discharged thereby.</p> <p>3. The Court erred in deciding that the plaintiffs were entitled to a judgment in this action, when there was a positive affidavit, that those parties had parted with the possession of the instrument on which this suit is brought.</p> <p>4. The Court erred in deciding that the said bill of exchange had not been fully paid and satisfied to the real owners thereof.</p> <p>5. The Court erred in giving judgment in favour of the plaintiffs, notwithstanding the defendants’ affidavits filed.”</p> <p>These affidavits are to be liberally construed. The facts are stated with sufficient precision. The word “ forwarded,” does not necessarily mean for collection. Why should the bill have been sent to Nashville for collection, when the acceptor resided here? The defendant has a strong equity for relief which can be obtained here at law. He had claims against the real holders for a much larger amount, which he ought not to be deprived of. The case of The Commonwealth, v. Clarkson, (1 Rawle, 291,) decided that mutual demands extinguish each other by operation of law, without actual defalcation by the act of the parties. [Gibson, C. J. That case has been greatly misunderstood. It never was intended so to decide; and so we have said in an opinion delivered last summer at Sun-bury.] Certainly the case has been understood as stated ; and the doctrine appears to have been carried out in Conrad v. Lancaster, (2 Rawle, 324.) [Huston, J. The case of a negotiable note is there alluded to and excepted.] It is not necessary that money should be actually paid, to give a right of set-off. Murray v. Williamson, (3 Binn. 135.) If a note be endorsed in blank, the Court never inquires into the right of the plaintiff, whether he sues in his own name or as trustee. Manson v. Lamb, (7 Cowen, 176.) Wag-goner v. Colvin, (11 Wendell, 27.)</p> <p>The first affidavit is defective and insufficient. The second contradicts the first. The defendant has not sworn that Douglass, Wood & Co. were the owners of the bill. Then there is nothing to show that the plaintiffs are not the real bona fide holders, and if so the rule of law in respect to the defence attempted to be set up, is perfectly plain.</p>

<p>APPEAL.</p> <p>This was an appeal from a decree of the Court of Common Pleas of Bucks County, made upon exceptions to the report of an auditor appointed to distribute certain funds in the hands of Thomas Sands, assignee of William W. Osborne.</p> <p>The part of the assignment upon which the question before the Court below arose, was as follows:</p> <p>“ After deducting the reasonable costs and charges of the said Thomas Sands, and expenses incident to this trust, shall and will pay and discharge and indemnify Thomas Sands, of Solebury, in order, first, by the payment of a certain note of two hundred dollars, due and owing by the said William W. Osborne; in the second place, shall and will pay and discharge, secure and indemnify, Isaac Vanhorn a note of one hundred and fifty dollars, due and owing by the said William W. Osborne; and in the third place, shall pay and discharge two hundred and twenty-five dollars, due and owing to A. C. Brittain & Co., by the said William W. Osborne; and in the fourth place, shall pay and discharge Samuel Sutton, by the payment of all the notes to the Doylestown Bank of Bucks County, remaining unpaid, upon which the said Samuel Sutton is endorser, drawn in the name of J. & W. Osborne, a schedule whereof is hereunto attached; and also shall and will pay and discharge, secure and indemnify the said Samuel Sutton, by the payment of all notes to the New Hope Delaware Bridge Company, remaining unpaid, upon which the said Samuel Sutton is endorser, drawn in the name of J. & W. Osborne; a schedule whereof is attached.”</p> <p>The auditor reported that payments ought to be made as follows:</p> <p>“ Thomas Sands’s note, with interest $202 16</p> <p>Isaac Vanhorn’s note, balance due 21 87</p> <p>A. C. Brittain & Co., as preferred in assignment 225 00</p> <p>Samuel Sutton, notes in Doylestown Bank 300 00</p> <p>do. New Hope & Delaware Bridge Co. 425 00</p> <p>Amount preferred $1174 03</p> <p>Balance in assignee’s hands . 774 31 Deficiency in paying the -</p> <p>preferred creditors 400 72”</p> <p>To this report Samuel Sutton, one of the said preferred creditors, filed the following exception:</p> <p>“ 1. That the auditor erred in allowing and reporting to A. C. Brittain & Co. two hundred and twenty-fire dollars.”</p> <p>Daniel Parry, one of the general creditors, also excepted to the auditor’s report, as follows:</p> <p>“ 1. That the auditor erred in not allowing the landlord’s claim for one year’s rent, due previous to the removal of the goods of the assignor, which were subject to the landlord’s distress.</p> <p>2. That the auditor erred in not allowing the assignee’s account for rent due said landlord, to the amount of seventy-five dollars; which claim was assented to previous to the removal of the goods.”</p> <p>On the argument before Fox, (Pres’t) the following depositions were read.</p> <p>Thomas Sands, the assignee, testified as follows: — " Osborne lived in the house of Parry at the time I accepted the trust. After I had appraised the goods of Osborne, and before the sale and removal, Parry came to me and said he had seventy-five dollars, which he wanted paid, and wanted me to receive it for him. I told him, so far as the law allowed, I would receive it: he appeared satisfied, and allowed me to sell the goods. I laid the claim of Parry before the auditor, and told him I expected it would be paid. Parry made no interference to stop the sale or removal of the goods. I think I accepted the trust in April, 1837. I think the property rented for seventy-five dollars : I believe Parry told me so. Parry did not ask me to pay the rent, while the goods were on the premises, and before the sale. I don’t know that he distrained. All the request that he made was, that he wished me to secure it for him. I told him at our first conversation, that I considered his claim valid.”</p> <p>The auditor, A. M. Griffith, Esq., was also examined, and testified as follows : — “ Samuel Brittain, one of the firm of A. C. Brittain & Co. produced before me the claim of the firm. It was a transcript from their book of original entries. I think a part of it for cash lent, and a part for other matters charged to the assignor. There was no other evidence of indebtedness produced at that time. The greater part of the claim produced, was for cash entries taken from their book, as I think. Brittain at this time, the first meeting, founded their claim to preferment under the assignment on the cash entries in their book, as he supposed the assignor intended to prefer them for the cash entries. I reported in their favour upon the evidence of the cash entries. At the first meeting Brittain mentioned a note they held against the assignor for a larger amount than the sum for which they were preferred in the assignment. The adjournment to the second day was because all the preferred creditors requested it, to give them an opportunity to present their further evidences of claim. The claim of Brittains for the cash entries was objected to before me by Sutton’s counsel. At the second meeting Brittain produced a note dated March 28th, 1835, payable ten days after date, to A. C. Brittain & Co., for two hundred and sixty-five dollars and fifteen cents, and signed by the drawer, William W. Osborne.- The no.te was proved. Brittains’ counsel, at the second meeting, said they claimed under the assignment. This was in answer to the question of Sutton’s counsel, as to whether they claimed upon the cash entries in the book, or upon their note. The book-account was not laid before me at the second meeting. The note was produced to substantiate the preferment of Brittains. The transcript produced by Brittain exceeded the amount of their preferment in the assignment. The claim at the second meeting was not founded exclusively upon the note. I would have reported upon the evidence of the cash account, even if the note had never been produced. The evidence of the note strengthened and corroborated the evidence of the claim Brittains had in the assignment, although there was evidence sufficient to induce me to report without it. There were but two meetings of the creditors before me.”</p> <p>After argument, the Court made a decree, that the rule granted upon the exceptions filed by Sutton, be discharged;</p> <p>And in the case of Parry’s exceptions, the report of the auditor was ordered to bo altered in conformity with the exceptions.</p> <p>■ Whereupon an appeal was taken by Samuel Sutton to this Court: and the following errors assigned :</p> <p>“ 1. That the Court below erred in discharging the rule granted upon the exceptions filed by said Sutton against the auditor’s report, allowing the claim of A. C. Brittain & Co., to the amount of two hundred and twenty-five dollars.</p> <p>2. That the Court below erred in decreeing that the auditor’s report be altered in conformity with the exceptions filed by Daniel</p> <p>Messrs. Brittain & Co. held several claims against the assignor, who intended to prefer them for the amount of cash lent only. The phraseology of the assignment in regard to this claim is peculiar. The claims of all the other preferred creditors are declared to be founded upon notes; and the omission of this declaration in the present instance affords the presumption that the claim of Brittain & Co., which was intended to be preferred, rested on other grounds. It was so understood by Brittain & Co. themselves, as appe'ars by the testimony of the auditor — “ at the first meeting they founded their claim to preferment on the cash entries in their book, as they supposed the assignor intended to prefer them for the cash entries.” At the second meeting the book-accouut was not laid before the auditor, but a different ground was then assumed, and a note for two hundred and sixty-five dollars and fifteen cents was produced and proved to substantiate the preferment. The intention of the assignor must be observed ; and Brittain & Co. having failed to establish, by competent testimony, their claim for cash lent, the preference fails. The admission of the debt in the assignment is not sufficient — there must be other evidence of its existence. The contrary doctrine would facilitate the commission of frauds, and produce the most pernicious results; and this Court have therefore held the law to be as stated. Account of Stephenson’s Assignees, (7 Watts, 480.) The consideration of the note produced was not cash lent, and consequently it was not evidence to support the claim preferred. Nor was the book of original entries evidence for that purpose. Ducoign v. Schreppel, (1 Yeates, 347.) The Court therefore erred in allowing this claim. The remedy of Sands, the landlord, was by distress, and he was bound to pursue it. His preference over the general creditors arises from his right to distrain the goods assigned; and having omitted to exercise this right, and suffered a bona fide sale and removal by the assignee, he stands in the same position with respect to the proceeds of sale as any other creditor. The goods were liable for the rent in arrear, while they remained on the premises; but after their removal, the landlord had no specific lien for his rent on the goods, or preferred claim on the avails of them in the hands of the assignee. Morris v. Parker et al. Assignees of Homes & Pine, (1 Ashmead, 187.) The authority of the assignee is wholly derived from the deed of trust, and that did not authorise the agreement by the assignee to pay the rent. His promise may have rendered him liable personally — the loss of the landlord’s lien on the goods assigned would constitute a sufficient consideration for that purpose : but the promise was not valid in his capacity of assignee.</p> <p>The claim of A. C. Brittain & Co. admits of no question. They were preferred “ two hundred and twenty-five dollars due and owing to A. C. Brittain & Co., by the said William W. Osborne.” Is there evidence that two hundred and twenty-five dollars was so due and owing 1 The assignment is itself prima facie evidence of it; it is an admission against the interest of the assignor at the time he made it; besides, the note of Osborne to A. C. Brittain & Co. for a large amount, produced before the auditor, removes every objection. The claim of Parry for rent stands upon a different ground, and will give room for argument, but is not susceptible of any serious objection. The rent was in arrear, and could have been distrained for; the goods of the assignor in the hands of the assignee being liable therefor, until removal. There was an equitable appropriation of the assets in his hands by the assignee (Sands) to the payment of this rent, which is favoured by the law. Though their rent is so readily recoverable, lessors are protected in a number of ways. An under-tenant may, without waiting for a distress, paya paramount rent. ComynL. & T. 401. 529. Rent is preferred in the distribution of the assets of a. decedent and of an insolvent’s estate, when administered by trustees appointed under the act of assembly. If the assignee had paid the rent, he would clearly be entitled to a credit for its whole amount. Even in the case of a legal bankruptcy this would be so. Stevenson v. Wood, (5 Espinasse, 200.) In Bradyll v. Ball, (1 Bro. Ch. Rep. 427,) an equitable lien for rent is recognised. The claim must be allowed to prevent a fraud; and so the Court below properly said. It is the case of a distress avoided by the inducement to waive it held out by the assignee. But there is a valid and binding interest between Sands as assignee and Parry, that Sands should pay him (Parry) out of the assets, if he had a valid claim to the rent, and should not distrain for it. It was an honest agreement, and beneficial to the creditors of Osborn. Their exception to it is ungracious. The consideration is contingent jn form, but absolute in fact; and the contract is valid. Gray v. Bell, (4 Watts, 410.) In Morris v. Parker, (Ashmead, 187,) the plaintiff had no right of distress, no rent being in arrear. The decision of that case was therefore correct; and even if considered as an authority, does not affect the present question.</p>

<p>iN error:</p> <p>Error to the District Court for the City and County of Philadelphia.</p> <p>Adam Eckfeldt brought an action on the case to the use of Charles Lukens, to December term, 1838, of that Court, against John Hemphill and Edgar H. Richards.</p> <p>On the 1st of December, 1838, the following agreement was filed, as a “ copy of the lease on which the action was brought.”</p> <p>“ Mem. of agreement, made the 24th of March, 1835, between Adam Eckfeldt of the one part, and John Hemphill and E. H. Richards of the other part, all of the city of Philadelphia. The said Eckfeldt hereby rents or lets to the said Hemphill and Richards, or their representatives, for a term of three years, from and after the first of April next, the rear part of a certain forty-four feet wide lot, adjoining on the south side the ground of the aforesaid Hemp-hill and Richards; commencing seventy feet west from Broad street and extending westwardly, one hundred and thirty feet, more or less. The said Hemphill and Richards shall, at their expense, repair the fencing, and make such filling up of that part of the lot they occupy, as they shall deem necessary; and also to erect at their expense a privy, for the use of the tenants in the brick buildings on the front of the aforesaid lot; and they may erect such sheds on the same as they may please, at their own expense, with right to remove the same whenever they may deem it expedient. It is further agreed, that whenever the said Eckfeldt, shall make a sale of the premises aforesaid, for actual improvement, he may terminate the lease by giving six months’ previous notice; and in the event of a sale, Eckfeldt agrees to give the said Hemphill and Richards a first offer of the lot. The said Hemphill and Richards agree and contract to pay Adam Eckfeldt, or his legal representatives, an annual rent for the use of the aforesaid premises, at the rate of one hundred and twenty-five dollars, payable quarterly, and to cqmmence on the first day of April next. In witness whereof, the parties have interchangeably set their hands, the day and year first written.</p> <p>John Hemphill,</p> <p>Edgar H. Richards, Adam Eckfeldt,”</p> <p>“ Amount claimed—</p> <p>For rent due October 1st, 1836, $187 50</p> <p>And interest to December 22nd, 1838, 25 00</p> <p>$212 50”</p> <p>On the 21st of December, the following affidavit of defence was filed.</p> <p>“John Hemphill, one of the defendants in the above case, being duly sworn according to law, says, that the said defendants have, as he is advised and believes, a good and legal defence to the whole of the plaintiff's claim, the nature and character of which defence is as follows, viz. — That the said defendants were, in the month of December, a. d. 1836, evicted from the premises, for the rent of which this action has been instituted, by a certain Benjamin Tevis, claiming the said premises by a title adverse and paramount to that of the said plaintiff, derived under a sheriff’s deed, acknowledged December 10th, 1836, on a sale made by virtue of an execution upon a mortgage executed anterior to the commencement of the lease upon which this action is founded. That in the term of September, a. d. -1837, an action was brought in this Court by the plaintiff against the said defendants, upon the same lease and contract on which this s’uit is founded ; and for rent of the same premises said to be due on the first of October, a. d. 1837: in which action so instituted as aforesaid, the said plaintiff recovered judgment for the amount of §126 15.”</p> <p>A rule was obtained to show cause why judgment should not be entered for want of a sufficient affidavit of defence.</p> <p>On the 11th of January, 1839, a supplemental affidavit of defence was filed as follows:</p> <p>“ John Hemphill, one of the defendants in the above action, being duly sworn says, that he has, as he is advised, a just and legal defence to the plaintiff’s claim, the nature and character of which is as follows, viz:</p> <p>That the said defendants were in the month of December, a. d. 1836, evicted from the premises for the rent of which this action has been instituted, by a certain Benjamin Tevis, claiming the said premises by a title adverse and paramount to that of the said Eck-feldt, derived under a sheriff’s deed, acknowledged December 10th, 1836, on a sale made by virtue of an execution upon a mortgage executed prior to the commencement of the lease upon which this action is founded. That in the term of September, 1837, an action was brought in this Court by the said Eckfeldt to the use of the said Benjamin Tevis against the said defendants upon the same lease and contract on which this suit is founded, and for rent of the same premises said to be due on the 1st of October, 1837; in which action so instituted as aforesaid, the said Richards being absent from the city, and this defendant not being in full possession of the facts, the plaintiff obtained judgment for want of an affidavit of defence, for the sum of one hundred and twenty-six dollars fifteen cents as may appear by the following transcript from the appearance docket of the said term of September, 1837, of the entries in the said suit.</p> <p>pnce. ‘ Adam Eckfeldt to the use of Benjamin Tevis 859 vs.</p> <p>Broom. John Hemphill and Edgar H. Richards.</p> <p>Summons, debt, §175; ex. October 4th; returnable 1st Monday in November. Served as to Hemphill; nihil kabet as to Richards.</p> <p>Nov. 6th, 1 w.-. Copy of instrument of writing filed.</p> <p>Nov. 25th, 1837. On motion of Mr. Price, judgment for want of an affidavit of defence. Prothonotary to assess damages as to the defendant Hemphill.</p> <p>Nov. 25th, 1837. Judgment.</p> <p>Nov. 25th, 1837. Damages assessed at $ 126 15.</p> <p>Satisfied July 23d, 1838. Eli K. Price for plaintiff.’</p> <p>And this defendant says, that in consequence of the said eviction and the said suit, the said defendants have sustained damage to the amount of $120.”</p> <p>On the 9th of February, 1839, the District Court gave judgment for want of a sufficient affidavit of defence; whereupon the defendants took a writ of error, and cn the return of the record filed the following specifications.</p> <p>“ 1. Because the facts set forth in the affidavit of defence constituted in law a good defence to the plaintiff’s demand.</p> <p>2. Because the said Court decided that where several quarters of rent due upon one and the same contract of lease and for the same premises were in arrears and unpaid, a distinct suit could be maintained upon every quarter’s rent so in arrears.</p> <p>3. Because the said Court decided that each of the said quarter’s rent so in arrears could be separately assigned, and the lessee thus subjected to several actions on the part of the several assignees.</p> <p>4. Because the plaintiff below having brought an action for rent in arrear, due on the 1st of October, 1837, was precluded from bringing any action for rent in arrear, due at a period antecedent to the said 1st of October, 1837, for the same premises and on the same contract, whether to the use of the same or a different person, the same being presumed by law to have been paid.”</p> <p>The eviction in December» 1836, is a complete answer to the present claim for rent; as it suspended or extinguished the rent. Kessler v. MConachy, (1 Rawle, 435.) In the former action the rent was recovered to October, 1837; and this ought to be a bar to the present suit. Hess v. Heebie, (6 Serg. & Rawle, 60.) Ingraham v. Hall, (11 Serg. & Rawle, 78.) Smith v. Jones, (15 Johns. 229.) Farrington v. Payne, (15 Johns. 432.) Willard v. Sperry, (16 Johns. 121.) Phillips v. Ber-rich, (16 Johns. 136.) The facts stated in the affidavit constitute a matter of equitable defence. Steigleman v. Jeffries, (1 Serg. & Raiole, 477.) Shaw v. Badger, (12 Serg. & Rawle, 276.) , Bayne v. Gaylord, (3 Watts, 305.) Under the terms of this agreement, the defendant has the same rights as under an express covenant for quiet enjoyment. A contract to let, is equivalent to demise, and implies a warranty in Pennsylvania.</p> <p>This action was brought to recover rent from the 1st of April, 1835, to the 1st of October, 1836. The land was sold by the sheriff to Mr. Tevis, in December, 1836, who recovered one year’s rent to October, 1837. The difficulty, which is only apparent, arises from the use of Mr. Eckfeldl’s name in the first suit, which was unnecessary. The plaintiff’s rights could not be affected by this, because he had nothing to do with the suit. It has been held that where rent is reserved, payable monthly or quarterly, an action may be maintained for each month’s or quarter’s rent. The eviction in this case was subsequent to the period for which rent is claimed; besides, it was not an eviction by the lessor but by the purchaser at sheriff’s sale. In Kessler v. M'Conachy, it was held, that the eviction by the landlord suspended the last month’s rent and no more. The defendant here was bound to show affirmatively either payment or a former recovery; and he has not done either.</p> <p>referred to Co. Litt. 373. Phillips v. Mon-gas, (4 Wharton, 228.)</p>

<p>IN ERROR.</p> <p>Error to the District Court for the City and County of Philadelphia.</p> <p>John P. Wetherill, Charles Wetherill and William Wetherill, copartners, &c. brought a writ of foreign attachment in an action on the case in that Court, to September term, 1836, against Jacob Snider, and Charles W. Roberts, lately copartners under the firm of Snider & Roberts. The attachment issued,, and was served on the 11th of June, 1836. Judgment was duly entered at the third term, and the damages assessed at f1016 42.</p> <p>A scire facias was then issued against John Flanagin, garnishee of Snider & Roberts. Interrogatories were filed to which the defendant answered; and upon the answers and exhibits annexed thereto the following facts appeared.</p> <p>On the 1st of April, 1835, Snider & Roberts executed an assignment to John Flanagin of all their estate and effects whatsoever, in trust to sell and dispose of the same, and after paying the expenses of the trust, &c. to pay the creditors of the assignees in a certain order and in certain specified classes: the first and second classes contained certain creditors by name; and the third class, “ all the residue of the creditors indiscriminately,:” Provided, that none of the creditors of the second and third classes should be entitled to any portion of the estate and effects so assigned, who should not execute a release to the said Snider & Roberts, of all demands, at or before 12 o’clock, noon, of the first of May, 1835.</p> <p>This assignment was duly recorded on the 9th of April, 1835.</p> <p>The release required by the assignment was executed by several of the creditors.</p> <p>On the of March, 1836, Jacob Snider and Charles W. Roberts executed the following instrument.</p> <p>“ Whereas, after paying the creditors, entitled to payment under our assignment of the 1st of April, 1835, to John Flanagin, a balance will remain in his hands for our use; and whereas certain of our creditors who omitted to entitle themselves to payment under it, by executing the release therein provided for, have since agreed to forbear suits for twelve months from the 12th day of June, 1835, and others ha-ve forborne to sue without entering into the letter of license, and we are desirous to appropriate the said balance in the hands of our assignee to the payment of the said forbearing creditors: now in consideration thereof, we do hereby assign our interest in the said balance unto the said John Flanagin; in trust, nevertheless (after deducting his commissions, and all other charges attending the execution of this trust,) to pay the same as far as it may extend, without preference, amongst those creditors whp have signed the letter of license dated the 12th of June, 1835, now in the possession of the said John Flanagin, as well as amongst all our remaining creditors, who have forborne to proceed against us at law'; our object being an equal and equitable distribution of our effects amongst those to whom we are indebted.</p> <p>In witness whereof, we have hereunto set our hands and seals this day of March, a. d. 1836.</p> <p>J. Snider,</p> <p>Charles W. Roberts.</p> <p>On the 19th of March, 1836, the following instrument was executed by Snider & Roberts.</p> <p>“ Know all men by these presents, that we, Jacob Snider and Charles W. Roberts, late co-partners in trade in the city of Philadelphia, under the firm of Snider & Roberts, in consideration of the sum of one dollar, lawful money of the United States, to us in hand paid, at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, as well as for divers other good causes and valuable considerations us thereunto moving, have remised, released, assigned and set over, and by these presents do remise, release, assign and set over, unto John Flanagin of the said city, all our and each of our right, title and interest, claim, property and demand whatsoever, of, in and to all such sum and sums of money, rights, credits, effects, and property whatsoever, which now are, or hereafter may be remaining in the hands or possession of the said John Flanagin, as our assignee, under a general assignment dated April 1, 1835, after payment of all such of our creditors as are or may be entitled to payment under it; to have and to hold the same unto him, the said John Flanagin, his executors, administrators and assigns, forever ,• upon trust, however, (after deducting his commissions, and all other charges attending the execution of this trust,) to pay the same without preference, to and amongst all our copart-nership creditors, in proportion to their respective claims. Provided, however, that none of such creditors shall be entitled to participate in the said residuary estate, money and effects, who shall not,.at or before twelve o’clock at noon, of the 19th day of September, a. d. 1836, execute a full and entire release and discharge of all demands, to us, the said Jacob Snider and Charles W. Roberts, and who in the meanwhile shall not forbear to molest or disturb us by suits, attachments, or other legal process : and for the more perfect accomplishment of said purpose, we direct that no distribution of any part of said residuum shall be made by the said John Flanagin, until the date last mentioned: and we hereby fully empower the •said John, as our attorney in the premises, to collect all sums due, or which may be hereafter due to us, out of said assigned estate, and to reduce all the other property into possession, and generally to do all such lawful acts as we might do herein were we person-' ally present; and if, after paying the creditors entitled to payment under this appropriation, any balance should remain in his hands, then he is to pay the same to the said Snider & Roberts.</p> <p>Witness our hands and seals, this 19th day of March, a. d. 1836.</p> <p>. J.. Snider. [l. s.]</p> <p>Charles W. Roberts, [l. s.]”</p> <p>Several of the creditors of Snider & Roberts, executed releases in pursuance of this assignment.</p> <p>To the interrogatories propounded to him respecting the funds in his hands, the defendant made answers as follows:.</p> <p>To the third interrogatory. “ The said co-partners, Snider' & Roberts, executed to me an assignment of their estate, on the 1st day of April, 1835, in trust for the benefit of creditors, upon certain conditions therein stated. The gross amount of property that passed under it, and came into my hands, was, to the best of my knowledge, and judging from my accounts which I believe to be correct, twenty thousand three hundred and eighty-five dollars eighty-four cents. Some doubtful debts remain uncollected, which it is impossible for me to estimate.”</p> <p>To the fourth interrogatory. “The said Snider & Roberts executed to me two written appropriations of the balance which might remain in my hands, after paying the creditors entitled to payment under the said general assignment; copies of which appropriations are hereto annexed, respectively marked A and B, and which I request to be considered as parts of my answer hereto. I cannot state the whole amount and value of the property and effects thus appropriated, as they consisted of book debts of a very doubtful character; but the amount actually recfeived by me therefrom, and remaining,- after paying the creditors under the said general assignment, is three thousand one hundred and sixty-nine dollars thirty-four cents, without deducting commissions or expenses. The claims of the creditors to whom this balance is appropriated, amount to about seven thousand dollars. No inventory or appraisement of the effects last mentioned, was made or filed under the said writings or appropriations.”</p> <p>In answer to the fifth and sixth interrogatories, the defendant stated, that he did not give any security as assignee under the second assignment; and that neither of the papers executed in March, 1836, was recorded in the office for recording deeds, &c. for the city and county of Philadelphia.</p> <p>To the seventh interrogatory he answered: “Releases were executed by certain of the creditors of Snider & Roberts, under the requisition of one of the said appropriations, upon the dates and times therein stated, and by the persons whose names are set forth in the copies thereof hereto annexed, and marked C and D: they were creditors for various amounts; the aggregate being much more than sufficient to absorb all the balance thus appropriated to them by Snider & Roberts.”</p> <p>To the eighth interrogatory he answered, that he was not indebted to Snider & Roberts on the Jlth of June, 1836, and had not since been indebted to them.</p> <p>The defendant pleaded “ nulla bona” to the scire facias: and the cause came on for trial before Stroud, J. when the plaintiff’s counsel gave in evidence the general assignment of Snider & Roberts, the record of the proceeding in the foreign attachment, and the answers of the defendants to the interrogatories.</p> <p>It was admitted that the defendant had finally settled his accounts under the general assignment of Snider & Roberts, and had paid all the creditors claiming under it in full; and that the plaintiffs and the other remaining creditors of Snider & Roberts had been duly notified by the defendant of the appropriation of the balance of moneys in his hands, prior to the 19th of September, 1836.</p> <p>The counsel for the defendant then requested the Court to charge the jury that the verdict should be for the defendant, upon the issue of nulla'bona. ' t</p> <p>The counsel for the plaintiffs thereupon requested the Court to charge in their favour upon the evidence; which the Court accordingly did, reserving the points embraced in it for the opinion of the Court in bank.</p> <p>The charge of the Court was in substance as follows.</p> <p>“ Snyder & Roberts made a general assignment to the defendant, on the 1st of April, 1835, in trust for the benefit of creditors, and stipulating for a release. Under it the defendant paid all the releasing creditors. Several creditors having omitted to release, Snyder & Roberts assigned or appropriated the residuum in the defendant’s hands, and which belonged to them, for the purpose of paying the remaining creditors, as far as it would reach. Snyder & Roberts for this purpose executed to the defendant two papers, which are, in effect, the same. They were not placed upon record, in accordance with the recording act of 1818, and were therefore invalid, as against this attachment. The plaintiffs are entitled to your verdict for the whole amount of their claim, to wit, the amount found by the inquest in the foreign attachment suit, with interest on the amount so found, from the date of such finding.”</p> <p>The defendant’s counsel here objected, that the original defendants would be thei'ebv charged with compound interest, viz. interest on the original claim to thé date of the inquest, and interest thereafter on the debt and interest so found.</p> <p>The learned judge however instructed the jury to find for the plaintiff, conformably to his previous charge; and the counsel for the defendant then excepted to the whole of the charge.</p> <p>The jury thereupon found for the plaintiffs, according to the directions of the Court, and'assessed the damages at $1093 62 with costs.</p> <p>A motion was-made for a new trial, but the Court in bank refused the motion, and on the 18th of December, 1838, ordered judgment to be entered on the verdict.</p> <p>This writ of error was then taken and the following errors were assigned.</p> <p>“First. The Court below erred in charging the jury: 1st, That the appropriations made by Snider & Roberts of their funds remaining in the defendant’s hands, after having discharged his trust as assignee, were void as against the plaintiffs below, for want of being recorded; and that, upon the evidence, the verdict should be for the plaintiffs. 2d. That the plaintiffs were entitled to recover interest on the debt and interest found by the jury of inquiry, from the date of said finding, although by this computation, they would receive compound interest.</p> <p>Second. The verdict is erroneous in this; that it is for a sum certain, as damages; whereas the jury should have found what goods or effects, if any, were in the hands of the garnishee at the time the attachment was executed, or afterwards; and also the value thereof.”</p> <p>1. This was not such an assignment as was contemplated by the act of 1818. It was a mere order upon the person who held funds to pay them over to certain other persons. There is no case which has gone so far as to say that such a paper must be recorded. The plaintiffs have had notice by the recording of the first assignment. The circumstances of this case resemble- those of Sharpless v. Welsh, (4 Dali. 279,) in which the appropriation was sustained against the attachment of a creditor. Here the rights of the creditor for whom the appropriation was made could not be affected by the failure to record the instrument, if recording was necessary.</p> <p>2. The effect of the judge’s direction was to give compound interest to the plaintiff; which has never been allowed except in the case of a scire facias to revive a judgment.</p> <p>3. The issue here was on the plea of nulla bona. The jury must find specific goods in the hands of the garnishee or else find for him. There are no damages in the case. It is true that the garnishee admitted money to be in his hands, but the jury should have found the fact of his having money, and not found damages.</p> <p>1. The attachment was laid on the 11th of June, 1836. The office of the first assignment was then satisfied; and the second assignment was like all other instruments of that kind, intended for the benefit of particular creditors, and within the intent of the act of 1818. The surplus, after paying the creditors under the first assignment, was the property of Snider & Roberts, and as such liable to an attachment at the suit of the unpaid creditors. The act of 1818 is express, that assignments not recorded shall be void. The money assigned therefore did not vest in the creditors preferred in that assignment.</p> <p>2d. The verdict is right; because the amount of the judgment in the attachment forms a new debt, upon which interest must be calculated. If there be an excess, it may be remitted.</p> <p>3d. The record shows that the garnishee had nothing but money in his hands. This exception was not taken in the Court below; and this Court will presume that the jury meant to find that there was so much money in the hands of the defendant, who admitted by his answers that he had upwards of three thousand dollars in his hands. Crawford v. Barry, (1 Binn. 481.)</p>

<p>1. A factor who remits a bill to his principal in payment of goods sold on his account, and endorses the bill, does not thereby become personally responsible to his principal, if he receives no consideration for guaranteeing, and does not expressly undertake to do so.</p> <p>2. The receipt of a certain amount per cent, upon sales, for “ commission and guaranty,” does not create a contract to guarantee the validity of a bill purchased bona fide in the usual course of business and remitted to the principal.</p> <p>3.-Whether evidence shall be given of contradictory statements made by a witness examined on the trial, without first interrogating or advertising the witness proposed to be contradicted, is a matter for the discretion of the Court trying the case; and their decision will not be reviewed in this Court.</p> <p>4. In an action against a factor to recover the amount of a balance alleged to be due to the principal abroad, and remitted by a bill of exchange, endorsed by the defendant, which was protested for non-payment, where the question was, whether, by receiving a certain per centage for “ commission and guaranty,” the validity of the remittance was guaranteed, it was held, that letters of the defendant to another mercantile person abroad, and accounts sent by the defendant to him, showing his transactions of a similar nature with that other person, were not admissible on the part of the plaintiff— being res inter alios acta.</p>

APPEAL. This was an appeal from a decree of the District Court for the City and County of Philadelphia, in the matter of-the distribution of the proceeds of a sheriff’s sale of a building and lot of ground, sold by virtue of an execution, in an action brought by Hugh Stevenson against James Stonehill.

IN ERROR. This case came before the Court by a writ of error to the Court of Common Pleas of the County of Montgomery. On the return of the record, it appeared that Daniel Weiser brought an action on the case for slander against Frederick Waagé. The declaration contained ten counts for different words alleged to have been spoken by the defendant, of and concerning the plaintiff, who was averred to be a minister of the gospel.

IN ERROR. Error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case, brought by Charles B. Austin against William Roberts, junior, to March Term, 1838, of that Court. On the 7th of March, 1838, the plaintiff filed in the office of the prothonotary of the District Court, a copy of the instrument upon which the action was brought, and which was as follows. “Dolls. 137 50. Kensington Philada., October, 1st, 1836.

<p>In an action in the District Court for the City and County of Philadelphia, brought by the holder against the drawer of two bills of exchange, for $500 each, which had been protested for non-payment, the defendant filed an affidavit of defence in the following words : “The two bills of exchange, whereof copies have been filed of record in this action, were, at the time of their maturity, owned by S. W. & P. C. T., the payees: and these instruments being unpaid, said payees entered into an agreement with them (said defendants) to pay them $1900 in Tennessee money, in full satisfaction of six drafts of $500 each, (two of which are now sued out in this action.) Under this agreement, defendants made some payments on account of the compromise stipulated as above, and have tendered the liquidation in full upon the terms specified, and now are, (as they have at all times,since been,) ready to comply with their part of the contract. The draft in question, if.it be now the property of the plaintiffs, must have become so since the making of the above agreement, which, having been entered into subsequent to the maturity of the paper, must be binding upon the plaintiffs. Deponent hopes and expects to prove on the trial that the plaintiffs are not the owners of said paper, but that the same actually belongs to said Messrs. T., who hope, by this action, to avoid their contract entered into as above.” Held, that tlie District Court was right in giving judgment for want of a sufficient affidavit of defence.</p>

<p>APPEAL.</p> <p>This was an appeal from a decree of the District Court for the City and County of Philadelphia, in the matter of the distribution of the proceeds of a sheriff’s sale of certain real estate, sold by virtue of an execution upon a judgment obtained by Charles J. Jack, Esq., to the use of Charles Wattes, against John C. Jones.</p> <p>The fund in the Court below was two hundred and fifty-five dollars, and arose from the sale by the sheriff, under the above writ, of the following premises, to witAll the right, title and interest of John C. Jones, of and in a three-story brick store, No. 127 North Water street.”</p> <p>The sale took place on the 2d of April, 1838, and was confirmed on the 6th of August, 1838. The money was paid into Court;. and the question of distribution was referred to an auditor, who reported the following facts, viz.:</p> <p>“ Isaac Jones, father of the defendant, was seized in fee (inter alia) of the store and lot above described, and died {quoad hoc) intestate, on or about the 29th of December, -1829.* The defendant was one of his heirs at-law.</p> <p>On the 2d of June, 1828, the Pennsylvania Fire Insurance Company entered judgment against Isaac Jones, on a bond with warrant of attorney, in the Supreme Court, for twenty thousand dollars, (real debt ten thousand dollars;) Isaac Jones being then alive. A scire facias issued on this judgment against his representatives to December Term, 1832, which was arbitrated, and an award for the plaintiffs for seven thousand three hundred and sixteen dollars and sixty-six cents, was filed on the 11th of March, 1833, which was never appealed from, and has never been since revived. Part of this sum was subsequently paid. Executions were issued on this judgment to June Term, 1833, December Term, 1833, and December Term, 1834, and subsequently. None of them however were levied upon this property.</p> <p>The plaintiff obtained judgment in the District Court against the defendant on the 25th of February, 1831, for one hundred and fifty dollars. '</p> <p>On the 13th of May, 1835, the defendant, by deed duly acknowledged and recorded, conveyed all the estate which he inherited from his father, to F. Koons, A. Mathews and others. On the 30th of January, 1836, Koons and the other grantees reconveyed to the defendant one-fifth of what he had conveyed to them by the above deed; and he again on the 15th of August, 1836, sold and transferred the said one-fifth to John Ambler. The plaintiff issued a scire facias on his judgment to September Term, 1835; to which the sheriff returned “nihil;” and an alias scire facias to December Term, 1835, which was also returned “ nihiland on the 12th of December, 1835, judgment was rendered in his favour for one hundred and ninety-three dollars and fifteen cents. No notice was given in either of these cases to the terre-tenants of the premises in question. Executions were then regularly issued, under which, as beforesaid, the premises were sold. The antagonist claimants of the fund were, The Pennsylvania Fire Insurance Company, judgment creditors of Isaac Jones, the ancestor, and the plaintiff, the senior judgment creditor of John C. Jones, the heir.”</p> <p>The auditor, after deducting the expenses of the audit, awarded the balance of the fund in Court, $224 02 to the plaintiff on account of his judgment; on the ground that the Pennsylvania Insurance Co. could claim the money only as a judgment creditor; and, as such, the lien of their judgment expired on the 11th of March, 1838, (viz. five years from the 11th of March, 1833,) and the property in question was sold on the 2d of April, 1838; consequently, after and immediately upon the expiration of the said lien, the lien of the plaintiff’s judgment (the eldest of record against the defendant,) obtained priority over that against the ancestor; the priority of which latter could only have been preserved by a second revival in due season. The claim of the Insurance Company to a lien under the then intestate law of 1797 was disallowed, as having no reference to judgments against decedents in their lifetime; they being regulated by the act of 1798 and its supplements, according to the authorities.</p> <p>To this report the counsel for the Pennsylvania Insurance Company filed exceptions; and the Court below, on the 15th of December, 1838, set aside the report, and ordered and decreed that the fund should be paid to the Pennsylvania Insurance Company on account of their judgment. From which decree Charles Watres appealed to this Court, and filed the' following assignment of errors.</p> <p>“ 1. Because the Court below erred in reversing the report of the auditor, and decreeing the fund in Court to be paid to the Pennsylvania Fire Insurance Company on account of their judgment against the representatives of Isaac Jones, deceased, when they ought to have confirmed the said report, and ordered distribution to be made in conformity therewith.</p> <p>2. Because no interest passed by the sale that could be bound by any incumbrances, except those against John C. Jones; the terre-tenants not having .been made parties to the scire facias issued by the plaintiff, or in any way warned according to law.</p> <p>3. Because the Pennsylvania Insurance Company, by not reviving their judgment in time, lost its priority, as against that of the plaintiff.”</p> <p>referred to the acts of 4th April, 1797, and 4th April, 1798, and cited- Black v. Dobson, (11 Serg. & Rawle, 94.) Quigley v. Beatty, (4 ¡Palis, 13.) Commonwealth v. Pool, (6 Walts, 32.) Hemphill v. Carpenter, (Id. 22.) Fryhoffer v. Busby, (17 Serg. & Rawle, 121.) Trevor v. Ellen-berger, (2 Penn. Rep. 94.) Penn v. Hamilton, (2 Watts, 93.) Kerper •v. Hock, (1 Watts, 9.) Bruch v. Lentz, (2 Rawle, 419.) Fetterman v. Murphey, (4 Walts, 24.) Duncan v. Clarke, (7 Watts, 224.)</p> <p>cited Graff v. Smith, (1 Dallas, 481.) Luce v. Snively, (4 Watts, 398.)</p>

<p>3. An instrument in the form of a promissory note, issued by a bank, with the corporate seal on its face, is a specialty; and an endorsement in blank by the payee does not make him liable as the endorser of a negotiable note.</p> <p>2. Where the payee of a note under seal, endorsed it in blank, and put it in the hands of his partner to obtain money upon it for the use of the firm, and the partner delivered the note to a money broker, who took it to the plaintiff’s agent and showed it to him, and on being asked as to the value of the note, pointed to the defendant’s endorsement, and assured the plaintiff’s agent of his sufficiency, whereupon the plaintiff discounted the note; it was held, that the plaintiff might recover back from the defendant, the money paid to the broker. '0</p>

CERTIORAEL This was a certiorari to the Court of Quarter Sessions for the County of Philadelphia, to remove the record of the proceedings in that Court, for the laying out and widening of Noble street, in the Northern Liberties of the City of Philadelphia. By the record and papers returned it appeared, that the following proceedings were had in the Court below. I. In the Case of Noble street from New Market street to Oak street.

IS ERROR. Error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit, brought by Roderick Sedgwick against M. S. Powell, upon a bill of exchange, drawn by the defendant, dated Philadelphia, the 19th of November, 1833, at three months after date, for two hundred and fifty dollars, payable to his own order, upon A. M. Lampher, of Killingly, Connecticut, and accepted by him.

<p> m ERROR. </p> <p>This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assump-sit, brought by Daniel S. Davis against John Jarden.</p> <p>The plaintiff declared as endorsee of a promissory note made by the defendant, dated the 19th day of December, 1836, at sixty days, for two hundred dollars, payable to the order of Daniel Copple, and by him endorsed to the plaintiff. The declaration contained also the common money counts, &c. The defendant pleaded non assump-sit, payment, and set-off, with leave, &c.</p> <p>Upon the trial, before Jones, J., on the 24th of January, 1839, the plaintiff gave in evidence the promissory note mentioned in his declaration, the handwriting being admitted.</p> <p>The defendant gave in evidence a notice to the plaintiff dated May 29th, 1837, that on the trial of this case the plaintiff would be required to prove what consideration he gave for the note on which the suit was brought; and insisted that the consideration must be shown before the defendant could 'be called on for his defence.</p> <p>The learned judge who tried the cause decided that the plaintiff Was not bound to show a consideration until the defendant had given evidence tending to show facts which ought to exonerate him from payment, except as against a bona fide holder for value. To which the defendant excepted.</p> <p>The defendant then called Daniel Copple, who stated on his voir dire, that he was the payee and endorser of the note. The defendant then offered to prove by him, that the plaintiff agreed with the defendant, that if he, the defendant, would sign the note, he, the plaintiff, would not in any event call on him for payment; and that this was the agreement of the plaintiff with the defendant at the time the note was given and endorsed to the plaintiff.</p> <p>The plaintiff’s counsel objected, and the witness was rejected as incompetent. The defendant’s counsel excepted.</p> <p>The defendant’s counsel then offered the same witness to prove the following facts : — “ That the witness borrowed of the plaintiff one hundred and thirty-four dollars in 1836; and when it became due, at the request of the plaintiff, he got Mr. Jarden, the defendant, to give a promissory note for two hundred dollars, of which the one now in suit is the last in the series of renewal; and that the plaintiff agreed with the defendant, that if he would give his name, that when the note became due, he, the plaintiff, would pay it; and that the note was drawn, given and paid by the plaintiff and that another note was given on the same conditions for two hundred dollars; at the maturity of which another was drawn in the same way, and on the same conditions, signed by the defendant.”</p> <p>In connection with that' testimony, the defendant also offered in evidence two promissory notes of the series, each for two hundred dollars, the first dated October 15th, 1836, at sixty days, by the defendant to Daniel Copple, the witness, endorsed by him and by the plaintiff; the other dated February 9th, 1836, for two hundred dollars, by the defendant, to the witness, and endorsed by the witness.</p> <p>To all which the plaintiff’s counsel objected, and the Court sustained the objection; whereupon the. defendant’s counsel excepted,</p> <p>The points of testimony were reserved at the request of the counsel; and afterwards,-on the 22d day of March, 1839, the points so reserved were decided by the Court in bank, in favour of the plaintiff. And thereupon the counsel for the defendant excepted to the decision and opinion of the Court in bank; and removed the record to this Court.</p> <p>The following errors were assigned.</p> <p>“ 1. The Court erred in deciding that the plaintiff was not bound to show the consideration of the note on which suit was brought, until the defendant had given evidence tending to show facts which ought to exonerate him from payment, except as against a bona fide holder for value.</p> <p>2. The Court, erred in rejecting the evidence of Daniel Copple, as mentioned in the second bill of exceptions.</p> <p>3. The Court erred in rejecting the evidence of the same witness, when offered a second time, as mentioned in the third bill of exceptions.”</p> <p>on the first point cited Delauny v. Mitchell, (1 Stark. Rep. 439; 2 Eng. Com. Law Rep. 462;) and Spooner v. Gardner, (R. & M. 86; 21 Eng. Com. Law Rep. 386.)</p> <p>The second and third errors assigned are the important ones. The witness was offered to prove a substantive, independent agreement between the plaintiff and defendant, in relation to the note, and was rejected, not on account of interest, but on the ground of his name being on the note. Walton v. Shelly, (1 Term Rep. 296,) is the first case that decided that a witness, otherwise competent, must be excluded, because his name was to the instrument, and owes its authority, not to the correctness of the decision, but to the reputation of the eminent judge by whom it was decided. The rule supposed to be established in that case was very soon restricted in England to negotiable instruments. Bent v. Baker, (3 Term Rep. 36.) In Jordain v. Lashbrook, (7 Term Rep. 601,) decided in 1798, all the cases were reviewed, and the rule laid down in Walton v. Shelly decided not to be law ; and it has never obtained in England since. Jones v. Brook, (4 Taunt. 464.) Reay v. Packwood, (7 A. & E. 917 ; 34 Eng. Com. Law Rep. 258.) The decision in Stille v. Lynch, (2 Dali. 194,) was made at Nisi Prius, and on the authority of Walton v. Shelly. In Pleasants v. Pemberton, (2 Dali. 196,) the limitation laid down in Bent v. Baker was adopted, restricting the rule to negotiable instruments. S. C. 1 Yeates, 202. Baring v. Shippen, (2 Binn. 165-8.) Ml Forran v. Powers, (1 Serg. & Rawle, 102-7.) It is now held to apply only to negotiable instruments actually negotiated in the usual course of business. Blagg v. Ph'cenix-Ins. Co. (3 Wash. C. C. R. 5.) Baird v. Cochran, (4 Serg. & Rawle, 399.) Hepburn v. Cassel, (6 Serg. & Rawle, 113.) Bank of Montgomery v. Walker, (9 Serg. & Rawle, 236.) Miller v. Henderson, (10 Serg. & Rawle, 290.) Griffith v. Reford, (1 Rawle, 196.) Gest v. Espy, (2 Watts, 265-9.) O’Brien v. Davis, (6 Watts, 498.) The note in this case was in the hands of s^n original party to the agreement, as we offered to prove; and according to Powell v. Waters (8 Cowen, 692,705,) had never been-negotiated, in the legal sense of the term.</p> <p>The rule of evidence, by which the testimony was excluded in this case, is too well established to be now shaken. The case of Griffith v. Reford is' in point, and conclusive. The mischief would be very great if the Court should depart from the well considered practice. There is nothing peculiar in this case. Bank of U. States v. Dunn, (6 Peters, 56.) Hoare v. ■ Graham (3 Campbell, 56.)</p>

<p>In ejectment, evidence is not admissible on the part'of the defendant, of declarations mads by the ancestor of the plaintiffs, that he had parted with the ownership to a third person for a price paid, and that he had surrendered the possession to such vendee; if the defendant shows no privity or connection with such vendee.</p>

<p>IN ERROR.</p> <p>Writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case, brought by John Fromberger, administrator de bonis non of George From-berger, deceased, against John Greiner and Jacob Chrystler, administrators of the goods, &c., of John Fromberger, deceased.</p> <p>The declaration was in assumpsit, and contained six counts; two on promises to George Fromberger, deceased, viz., for money had and received, and upon an account stated ; two on like promises to Peter Ridge, administrator of George Fromberger; and two on like promises to the plaintiff, as administrator de bonis non, &c. The pleas were non assumpsit and payment. "</p> <p>John Greiner and Jacob Chrvstler both died after the commencement of the action, and before the trial, and the executor of Chryst-ler, the survivor, was substituted.</p> <p>The facts upon which the controversy arose were principally as follows:</p> <p>John Fromberger died intestate in 1808, leaving some personal property, and a large real estate, and eight children. John Greiner and Jacob Chrystler were appointed his administrators, and on the 20th of March, 1807, obtained an order of Court to sell part of his real estate for the payment of.his debts. This sale produced upwards of eleven thousand dollars.</p> <p>Geoi'ge Fromberger, one of his sons, died intestate, in the' year 1807, indebted in a small amount, leaving a widow (who afterwards died,) and one son, the plaintiff in this action. No division of the real estate of John Fromberger,' the elder, had taken place at the time of the death of his son George.</p> <p>On the 16th of March, 1810, a petition was presented to the Orphans’ Court by one of the heirs of John Fromberger, praying for an inquest of valuation and partition of his real estate; in pursuance of which the whole real estate was sold in June, 1810, and produced about ninety-four thousand dollars, of which the share of George was about six thousand five hundred dollars. This sum was received by the administrators, and placed out by them on bond and mortgage in 1810, and so remained until 1823, when the mortgage was paid off, and the money went into the hands of Greiner, who soon afterwards became insolvent.</p> <p>At the time of the sale of the real estate, one Peter Ridge was ■ the administrator of George Fromberger. The plaintiff afterwards obtained letters of administration de bonis non. No account of the administration of this estate had been settled, nor was there any substantive evidence that all his debts had been paid.</p> <p>The cause came on for trial before Jones, J., on the 22d of January, 1839, when, after stating the above circumstances, the learned judge charged the jury in substance as follows:</p> <p>“ From this statement of facts it appears, that the sum claimed in this action, is a part of the proceeds of the real estate sold on the 17th, 19th and 23d of May, 1810, which was about two years after the death of George Fromberger, the plaintiff’s intestate. It is indeed said by the plaintiff, that the defendant must show, that no part of the proceeds of the sale for payment of debts made in 1S07, enters into the sum. And if the fact be, that this sum, or any part of it, arose from sales made by the administrators of John, during the life of George, the plaintiff may recover so much as administrator. Those sales produced eleven thousand five hundred and sixty-six dollars and seventy-five cents. They were carried into the second settlement, which was made January 29th, 1808, and the balance in the hands'of the administrators on settlement, was only four thousand and thirty-three dollars and seventy-three cents, and there were then outstanding debts to an amount more than sufficient to absorb it. In the third settlement, payments were made by the administrators before the sale upon petition, sufficient to absorb this balance, so that in point of fact, the whole of the sum in controversy must have come from the sales of the real estate of John, made after the death of George. This appears to me to be the fact, but you will have the accounts, and will ascertain for yourselves how the fact is. The first question, and in fact the only question, which need be discussed, in this case is, whether the plaintiff or administrator can recover the share which arose from George Fromberger’s purpart of the real estate. Upon the death of a person intestate, the law transmits only his personal estate, to his administrator. The real estate descends to his heirs. The letters of administration which contain the administrator’s authority are expressed in conformity with this state of the law. They extend to “ all the goods and chattels, and credits of the deceased at the time of his death.” And those de bonis non extend to “ all the goods and chattels, and credits of the deceased at the time of his death, which remained to be administeredthat is, all which were not administered by the first administration. The administration bond does not extend to any thing but the goods, chattels and credits of the intestate. Of course the administrator can never claim the real estate of the intestate by virtue of his letters, or money arising or accruing out of his real estate subsequently to his death. It follows of course, that when George died, so much of his share in the real estate of his father John, as was not sold, descended to his heir, and was subject to the claim of the widow, or rather her rights under the intestate laws. And the heir or widow of George had a right to proceed in the Orphans’ Court to compel a partition or valuation of the estate of John. Such being, then, the manner in which the rights arising out of George Fromberger’s share of his father’s estate, now disposed of by the law, it follows that Mr. John Fromberger, the plaintiff, cannot as administrator receive the proceeds of the sale in the proceedings in 1810. He has no right to them as administrator. It is true that he maybe entitled to it as heir of his father under the intestate laws ; but as he sues in the character of administrator, he can enforce no right in the action which Peter Ridge, the first administrator of George, could not enforce if he were the plaintiff in the action. The decision of the action against him cannot prejudice his right as the heir of his father. He may still sue for the distributive share. And if he shall do so, then it will be necessary for the defendants to show that they have paid it according to law, or show some other defence which in point of law will operate to their discharge. Some evidence has been admitted by both parties, without objection, which would be much more proper or pertinent in an action by the plaintiff in his own right. And some testimony of the same nature has been rejected upon objection, upon the ground that if the plaintiff is entitled as administrator to recover, his claim cannot be defeated by the fact of Eliza Fromberger or his guardian having the custody of his person and estate. But enough appears both from the evidence and the arguments to show that some nice questions of law would arise in such an action ; but upon this it is not necessary to express an opinion. But it is said that the administrator is the only person who is entitled to sue for the distributive share, and that their rights may1 as well be decided in this action as in a new one. It is sufficient to answer, that we are bound by the forms of law, and though they may in some cases be dispensed with without injury, yet they are indispensable to the safe administration of justice. But another answer is this: the Court, upon the trial of the cause, must be guided by the forms of the action and the pleadings in receiving or rejecting evidence ; and in this very case I have rejected upon the plaintiff’s objection, evidence which, though improper to defeat the plaintiff’s action as administrator, would nevertheless be proper to defeat an action brought by him in his personal rights. It would, 'therefore, be unjust to make this action the means of trying the personal rights of the plaintiff, because he has taken advantage of his representative character to exclude evidence which would be pertinent in an action founded on his personal rights to the distributive share. Upon the whole case, therefore, if you find that George Fromberger died before the real estate was sold, out of which the money demanded arose, the plaintiff cannot recover in this action. Such was the opinion of the District Court upon a former trial of this cause. I should feel myself bound by the decision of the whole Court, whatever might be my individual opinion. A new trial was awarded, to give the plaintiff an opportunity to review the opinion of the Court, if he thought proper. I do not wish to be understood as intimating any opinion against the plaintiff upon his right to recover in his individual right. It certainly would be very hard for him to lose his patrimony without any default of his own. The case also of the defendant’s testator is said to be a hard one, as his counsel say that his co-administrator had the whole fund and died insolvent. But these matters can be fairly and fully tried in another action, though they cannot lawfully be considered and decided in this action.”</p> <p>The plaintiff’s counsel excepted to this charge; and having taken a writ of error, filed the following exceptions.</p> <p>“ 1. That the Court below erred in charging the jury, that Mr. John Fromberger, the plaintiff, cannot, as administrator, receive the proceeds of the sale under proceedings in 1810; and that he had no right to them as administrator.</p> <p>2. The Court erred in instructing the jury that the law was with the defendant as to the form of action.”</p> <p>The defence is merely formal and technical, and not entitled to favour in a case where the merits are not denied to be with the plaintiff. The plaintiff ought to recover as administrator, because in Pennsylvania the administrator is both by practice and decisions entitled to take the proceeds of sale of the real estate of his intestate. M‘Clay v. Grider, (11 Serg. & Rawle, 224.) Guier v. Kelly, (2 Binn. 294.)' Commonwealth v. Rham, (2 Serg. & Rawle, 375.) And all such proceeds are held to be personal. Yoke v. Barnett, (1 Binn. 358.) Wishart v. Downey, (15 Serg. & Rawle, 77.) He is so entitled for the purpose of paying debts. Lee v. Wright, (14 Serg. & Rawle, 149.) Lee v. Gibbons, (1 Rawle, 105.) Eisenbise v. Eisenbise, (4 Watts, 134.) Edwards v. Hoopes, (2 Wharton, 426.) Even where real estate has not been sold by a judicial sale, the administrator has been held entitléd to take the proceeds. Hege v. Hege, (1 Penn. Rep. 90.) Boggs v. Bard, (2 Rawle, 103.)</p> <p>The right of action is .in the heir or the administrator, one or the other. If the heir is entitled, the creditors of his father must be deprived of payment; for the land is discharged of their liens; and the fund in the hands of the heir cannot be sued for, as against him, or touched by an execution issued on a judgment obtained against the administrator; not to speak of the actual and obvious dangers of wasting or concealment without responsibility. To say that he is entitled after debts are paid, is to say that unless he chooses to pay the debts, the fund shall be locked up, or that the holders will always be equally entitled, and obliged to wait the termination of a suit against him, in which it shall be proved that there are no debts, before he can pay. It is further to put upon the heir to prove a negative, or to effect what must often be an impossibility.</p> <p>The administrator is entitled, not only upon the view of the inconveniences which must attend upon vesting the right of action solely, or even concurrently, in the heir, but upon the policy of the law of Pennsylvania, which makes all things assets for the payment of debts, and which therefore makes it necessary that the administrator shall have them. He cannot indeed touch the real estate ; but it is upon judgment against him that it is sold. If sold upon an execution, he is entitled to the surplus proceeds. Guier v. Kelly, (2 Binn. 294.) Commonwealth v. Rham, (3 Serg. & Rawle, 375.) What reason is there why he should not be entitled to take the proceeds, when the same land is sold under proceedings in partition, which might be sold under an execution. His responsibility is the same in both cases. The act of April 2d, 1804, directs that the Court shall distribute the proceeds of sale according to law and justice. The law of Pennsylvania would give the fund to him as assets and justice to the creditors requires that it should not go into the hand of the heir.</p> <p>The case of The Commonwealth v. Ferree, (8 Serg. & Rawle, 312,) cited by the Court below, has no application to this case. That was a question of distribution, in which it was rightly held, that the proceeds of the wife’s land actually sold in partition after her death, should be treated as real, for the benefit of her children or heirs, and not as personal, for the advantage of the husband. If this were a question of distribution between the heirs and the wife of George, that case might have some bearing upon it, but this is a question of the right to recover the fund for the purposes of distribution, after it is received. The administrator appears to be the person entitled to sue.</p> <p>cited Ferree v. The Commonwealth, (8 Serg. & Rawle, 312.) M‘Clay v. Grider, (11 Serg. & Rawle, 224.) Commonwealth v. Rham, (2 Serg. & Rawle, 375.) Boggs v. Bard, (3 Raiole, 103, 4.)</p>

DEMURRER. This was an action of trespass quare clausum fregit, &c. brought in this Court to December Term, 1838, by James C. Fisher against Samuel B. Morris. The plaintiff declared for a trespass to his close, situate in the township of Moyamensing and county of Philadelphia; particularly describing it by courses and distances, metes and bounds, &c. The defendant pleaded not guilty, and liberum tenementum.

<p>APPEAL.</p> <p>This was an appeal from a decree of the Register’s Court for the County of Philadelphia, made under the following circumstances.</p> <p>On the 19th of September, 1808, David Blealdey of Ireland, made and published his last will there, as follows:</p> <p>“In the name of God, amen. I, David Bleakley, of Annsvale, parish of Keady and county of Armagh, being of sound mind and memory, and sensible of the shortness and uncertainty of human life, do hereby leave, bequeath and dispose of all my worldly goods and properties in manner following:</p> <p>First. I will and appoint that my just debts and funeral expenses be duly paid out of the goods and chattels of which I may die possessed, by my executors hereinafter to be mentioned.</p> <p>Secondly. I leave, bequeath and entrust all the residue and remainder of my properties, whether in lands, moneys, debts due to me, or any other kind whatever, to my brother-in-law, the Rev. Alexander Patterson, of Magheralty, John Steel of Hanslaw, esquire, and West Darby of the city of Dublin, merchant, in trust for the following purposes and no other, that is to say—</p> <p>That all the lands, moneys and other properties of which I may die possessed, and which may remain after payment of my just debts and funeral expenses as aforesaid, shall be preserved unsold and free from mortgage or other incumbrance, during the natural life of my son William Bleakley; and that all issues, profits and interest arising out of the same, shall be regularly and duly paid half yearly to my said son, by my executors to be hereinafter mentioned, during his life or so long as he may remain unmarried.</p> <p>And it is my will and intention, that provided he shall marry with the consent and approbation of my executors, the aforesaid interests, profits and issues shall continue to be paid to him as aforesaid, until the birth of his first child, lawfully begotten.</p> <p>And that then he shall be put into full possession of all the said lands, and one half of the other properties by me bequeathed; he previously settling by legal deed such lands in reversion, and the remaining half of the other properties aforesaid, on the issue of said marriage.</p> <p>But in case he shall die unmarried or without legal issue, it is my will, that David Bleakley, son to my brother John Bleakley of the city of Dublin, shall inherit and enjoy the lands of which I may die possessed or to which I may be legally entitled at the time of my death, on his paying or causing to be paid seven-tenths of the fair and equitable value of the same, to Catherine and Eliza Bleakley his sisters, to Ann and Mary Bleakley. daughters of my brother William B. Bleakley of Armagh, to Ann Jane Gumming daughter of my sister Margaret, to Anne Boyle daughter of my sister Anne and David Patterson son of the Rev. Alexander Patterson by my sister Sara, in seven equal shares, that is to say, share and share alike.</p> <p>And it is my will and intention, that all my other properties and goods shall be converted into money, by public sale, by my executors, and the amount by them disposed of in the manner above mentioned, that is to say, to my nephew David Bleakley, aforesaid, three-tenths of the same, and to my nieces and nephew before mentioned one tenth each.</p> <p>And I do hereby nominate my trustees Alexander Patterson, John Steel and West Darby before mentioned, the sole and only executors of this my last will and testament, for the purpose of discharging the duties and trust therein mentioned, according to the fair and plain meaning thereof.”</p> <p>This will was duly proved in the common form of law on the 22d of September, 1815, in the Prerogative Court of Ireland, and letters testamentary were granted. It was in evidence before the register, that David Bleakley, the testator, died at Baltimore, on the 29th of February, 1809, leaving only one child William Bleakley, who was afterwards married in Ireland, clandestinely and without the knowledge, consent or approbation of any of the executors named in his father’s will. This William Bleakley died at New York, on the 20th of March, 1823, leaving one child only, David N. Bleakley; and having previously made a will as was alleged ; and as was also alleged, without having made any settlement on his child according to the will of his father.</p> <p>On the 17th of October, 1825, letters of administration with the will annexed, &c. were granted by the register of Philadelphia, to one John Lisle, as administrator of David Bleakley’s estate: on his death, letters of administration in the same form and to the said estate were afterwards granted by the register on the 8th of December, 1832, to the said David N. Bleakley, a citizen of Virginia, and the-grandson and only heir of the said David Bleakley.</p> <p>On the death of David N. Bleakley intestate, leaving a widow but no children, two applications were made in January, 1838, to the register, for letters of administration de bonis non, cum testa-mento annexo, durante absentia, &c. to the same estate. The first was made by Isaac Norris, Esq., as nominee of Alexander Patterson, (the only surviving executor and trustee of David Bleakley, the above mentioned testator;) and also as the appointee of the widow of David N. Bleakley, the grandson of the said David Bleak-ley. The power of attorney from Alexander Patterson, was dated in the year 1827, and was as follows:</p> <p>“ Know all men by these presents, that I, the Rev. Alexander Patterson, Presbyterian minister, of Magheralty in the barony of Lower Iveagh in the county of Down, in that part of the kingdom of England and Ireland called Ireland, surviving executor and trustee of David Bleakley, late of Annsvale in the county of Armagh, deceased, have for good and sufficient causes me thereunto moving, made, ordained, constituted and appointed, and by these presents do make, ordain, constitute and appoint, and in my name and stead, put and depute, my true and lawful attorney, for me and in my name, and for my use, to be and appear before the register of wills for the city and county of Philadelphia, or other tribunal for taking administrations, &c.; and then and there revoke and cause to be revoked, all and every letter of administration heretofore surreptitiously granted, of the estate and effects of the said David Bleakley aforesaid; and to cancel and annul the same; and to take, receive and accept of letters of administration of the goods, chattels and estate of the said David Bleakley, from me only and in my behalf and for my use and benefit; and to do and perform all and whatsoever to my said attorney shall and may seem needful or necessary in my behalf, for the purpose aforesaid, as fully to all intents and purposes as I myself might or could do if I was personally present; hereby ratifying and confirming whatsoever my said attorney shall lawfully do or cause to be done in the premises by virtue of these presents. In witness whereof,” &c.</p> <p>This power of attorney was sent over originally with a blank for the name of the attorney, which at the time of the application to the register, was filled with the name of Isaac Norris, Esq., in pursuance, as was alleged, of authority contained in a letter from the constituent.</p> <p>The other application for letters of administration, was made by one William Clendenning, a subject of the king of Great Britain, and residing in the kingdom of Ireland. He claimed a right to administer as an alleged purchaser of an interest under the will of one Edward Moore, deceased, who claimed to be one of the legatees under the will of William Bleakley, the material part of which was as follows;</p> <p>“ I give and bequeath all my real estate wheresoever situate, and all my right, title interest, claim and demand, of, in and to certain lands, lots and real estate in the City of Philadelphia, and in the Island of Bleakley in the river Schuylkill in the state of Pennsylvania, unto Edward Moore, of the city and state of New York, grocer, upon trust nevertheless, to grant, bargain, sell and convey the same with all reasonable diligence, for money, and after paying my funeral expenses and my debts, to pay the following legacies. (Here follow sundry legacies.) Item. All the rest and residue of my estate whatsoever and wheresoever, of what nature, kind and quality soever the same may be, and not herein before given and disposed of, I do give and.bequeath unto the said Edward Moore and Rachel Hazle-ton, their executors, administrators and assigns share and share alike, to and for their own use and benefit absolutely. Item. I constitute and appoint the said Edward Moore of the city and state of New York, grocer, to be the sole executor of this my will. I revoke all former wills by me heretofore made and declare this to be my last will and testament. In witness whereof, I have hereto set my hand and seal this 16th day of March, 1823.”</p> <p>By a codicil to this will, William Bleakley left the sum of ten pounds sterling to his son David N. Bleakley.</p> <p>Edward Moore obtained letters testamentary of this will from the surrogate of New York, and afterwards died, leaving by his will all his property to his wife Margaret, who afterwards died, leaving all her estate to one Ashley, who conveyed all his interest to Clen-denning.</p> <p>Evidence was laid before the register to prove, that William Bleakley was incompetent, by reason of illness and imbecility of mind, to execute a will at the time the instrument bore date.</p> <p>After a full hearing, the register decreed the letters of administration in question, to Isaac Norris, Esq., the nominee of the executor and trustee in Ireland, and the appointee of the widow of David N. Bleakley.</p> <p>From this decree of the register, William Clendenning appealed to the Register’s Court, who, after hearing, affirmed the decree of the register, as respects the application made by Clendenning, and reversed the decree of the register granting the letters to Mr. Norris.</p> <p>From this decree of the Register’s Court, Mr. Norris appealed to the Supreme Court, and filed the following assignment of errors:</p> <p>“ 1. Because the present appellant is entitled to the letters of administration de bonis, &c. and the Register’s Court have erred in denying his right.</p> <p>2. Because the Register’s Qourt erred in reversing the decree of the register.</p> <p>3. Because William Bleakley the son, was entitled only to a life interest in the estate, and had no power to devise the same over.”</p> <p>referred to the act of the 15th of March, 1832, sect. 12; and cited Wilting v. Perot, (5 Rawle, 264.) Ellmaker’s Estate, (4 Watts, 34.) Toller on Exec. 108. Robertson on Succession, 286, &c. Case of Sidey Hamet, SfC. (1 Addams, 340; 2 Eng. Eccl. Rep. 126.) Case of the Elector of Hesse, (1 Haggard, 93; 3 Eng. Eccl. Rep. 42.) Goddard v. Cressonier, (3 Phillimore, 637 ; 1 Eng. Eccl. Rep. 491.) Atkinson v. Barnard, (2 Phillimore, 316; 1 Eng. Eccl. Rep. 271.) Exparte Kirwin, (8 Cowen, 118.) Stable v. Barger, (10 Serg. & Rawle, 170.) Sigfried v. Levan, (8 Serg. & Raidle, 308.) Beary v. Haines, (4 Wharton, 20.) 2 Vernon, 394.</p> <p>cited Mllvaine v. Gethen, (3 Wharton, 584.)</p>

<p>IN ERROR.</p> <p>Error to the District Court for the City and County of Philadelphia.</p> <p>To June Term, 1837, of that Court, Daniel Johns brought a writ of scire facias upon a mechanic’s claim against Nathan P. Sullivan, contractor, and Peter A. Browne, owner, of a certain three-story brick house, situate in Walnut street, in the city of Philadelphia, for painting and glazing done from the month of December, 1836, to May, 3 837, amounting to eight hundred and thirty-two dollars and forty cents.</p> <p>To this 'scire facias the sheriff returned “ made known,” as to Sullivan, and “ nihil habet” as to Browne. An appearance was entered for Sullivan only.</p> <p>On the 21st of July, 1837, Sullivan filed an affidavit of defence as follows, viz.</p> <p>“ Nathan P. Sullivan, the defendant above named, on his solemn affirmation declares and says, that he has a just and true defence to the plaintiff's demand in the above action; the nature and character of which is as follows. That this deponent has done carpenter work, and furnished materials for the plaintiff’, and at his request, to an amount exceeding the amount claimed by the plaintiff in this suit. That the deponent and the plaintiff have had dealings together in their respective trades, for several years, the account wherefor remains unsettled; the balance being as yet unascertained. Until which settlement it is not in the deponent’s power to say whether he is indebted to the plaintiff any part of his demand in the present suit. The deponent further says, that the amount claimed by the bill filed in this suit, is greater than the plaintiffs ought to be allowed for the work and materials.”</p> <p>Pleas were afterwards entered of “ non assumpsit, payment and set-off.”</p> <p>The cause came on for trial before Stroud, J., on the 1st of June, 1838, when the plaintiff gave evidence to prove the work done by him at the building. There was also some evidence of the ownership of Mr. Browne.</p> <p>The defendant then offered evidence to prove that Sullivan had done work for Johns as a carpenter, at his house in Pine above Broad street, and to show the amount thereof. This evidence was objected to by the plaintiff’s counsel, and rejected by the Court, on the ground that notice in writing had not been given ten days before the trial of the matters intended to be given in evidence under the plea of set-off.</p> <p>To this opinion the counsel for the defendants excepted.</p> <p>The learned judge charged the jury — “ That the owner of the building, at the time the work was done, if himself the actual builder, might be considered as the contractor, and a claim be filed, and a scire facias issued against him as such. That a purchaser of the building, after the work was done and the building finished, might be made a party as oioner in the claim filed, and scire facias issued. That the act of assembly contains the expression ‘ owner or reputed owner and the jury might take the evidence of Thomas Lawrence and consider whether or not he was not at least a reputed owner. That the defendant not having put the ownership in issue by a distinct plea, could not take advantage of the want of proof thereof on the trial, even if no evidence had been given on the subject.”</p> <p>A bill of exceptions was taken to the rejection of the evidence and the charge of the Court; and the record having been removed by writ of error, the following specifications were filed.</p> <p>1. “ The judge erred in rejecting the defendant’s evidence.</p> <p>1st. Because it was admissible under the plea of payment.</p> <p>2d. Because it was admissible under the plea of set-off, the plaintiff not having called for a specification of the particulars intended to be set off.</p> <p>3d. Because the defendant by his affidavit of defence, gave notice in writing more than ten days before the trial, of the matter intended to be given in evidence.</p> <p>4th. Because the affidavit of defence filed by the defendant, amounts to, and is in law a full plea of set-off.</p> <p>2. The judge erred in his charge to the jury.</p> <p>1st. By instructing them that the owner of a building at the time the work is done, can be proceeded against as contractor.</p> <p>2d. By instructing them that a purchaser after the building is finished, can be proceeded against both in the claim filed and the scire facias issued as owner.</p> <p>3d. By instructing them that the question of ownership must be put in issue by a distinct plea.”</p> <p>1. That the evidence ought to have been received. The affidavit of defence contained all the information that could be required, and was sufficient notice. They referred to Dale v. Sollet, (4 Burr. ■2133.) Moses v. M‘Farlane, (2 Burr. 1010.) Sylvester v. Girard, (4 Rawle, 185.) Sharp v. Sharp, (13 Serg. & Rawle, 444.)</p> <p>2. That the proceedings were erroneous, inasmuch as Sullivan was owner at the time the work was done, and could not be sued as contractor; and because a judgment was entered against Browne, who was not served.</p> <p>1. This is in substance an action of assumpsit. The plea is non-assumpsit. The rule of Court is express that notice in writing must be given. The affidavit is not part of the record. The plaintiff was surprised here. In Beyer v. Fenstermacher, (2 Wharton, 97,) it was held, that notice must be given, although the evidence offered had been given on a previous trial before arbitrators.</p> <p>2d. The proceedings were conformable to the act of 1836, which requires “ the owner or reputed owner,” and the contractor to be made parties. The proceedings are in rem; and the publication required by law is notice. The judgment is not personal against Browne. Anshuiz v. M‘Clelland, (5 Watts, 487.)</p>

IN ERROR. Error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment brought by Charles Edward Bensell, E. S.… Held: that if A., the next heir in tail, releases to B., tenant in tail in possession, the statute does not begin to run until the death of B. without issue. Shepley v. Lytle, (6 Walls, 500.) There must be laches in a party before the statute can begin to run against him. Jackson v. Schoonmaker, (4 Johns.

<p>In an action on a promissory note given by the defendants in favour of the plaintiff, it was held, that tile defendants might set off a debt due by the plaintiff to a company or partnership of which the defendants were members; the other members of the company or partnership authorising the same.</p>

<p>CASE STATED.</p> <p>Aw action was brought in this Court by John Roney, executor of the last will and testament of Barbara Odenheimer, deceased, against Michael Stiltz, and a case stated for the opinion of the Court as follows:</p> <p>“ Mrs. Barbara Odenheimer on the 22d of July, 1835, made her last will and testament, which was subsequently, to wit, on the 16th of December, 1837, (she having in the meantime died,) duly proved, when letters testamentary were granted to the plaintiff, one of the executors, the other, (two having been appointed,) renouncing the executorship. The parts material of- the will are in these words, ‘I &c. do make this my last will and testament of and concerning the real and personal estate, whereof I am in any wise seized or otherwise possessed, either in possession or reversion, or any person or persons in trust for me, which I have any power 'to dispose of as follows</p> <p>The testator, after some specific and pecuniary legacies, devised the whole of her residuary estate upon certain different trusts, and then concludes. ‘ In order that the foregoing, my last will and testament, may be carried fully into effect, I authorize and direct my executors hereinafter named, to sell and dispose of such parts of my real and personal estate (as has not been hereinbefore disposed of,) and good and sufficient titles in law to make the purchaser for the same.’</p> <p>For the purpose of carrying the object of the will fully into effect, the plaintiff, the acting executor as before said, exposed to public sale the following item, among others, of the testator’s real estate; and the defendant purchased it for the price of two thousand five hundred dollars — a three-story dwelling-house or lot of ground, No. 486, on the west side of Delaware Second street, north of Poplar lane, in the Northern Liberties, seventeen feet front by about sixty-eight in depth; subject to the payment of one pound ground-rent, Pennsylvania currency, payable to John Brown, his heirs and assigns forever.</p> <p>The testator did not own the above described property on the 22d of July, 1835, the date of her will. It was acquired subsequently, and between the making of her will and her death.</p> <p>The purchaser, the defendant in this case, declines paying his purchase-money, on the ground that the plaintiff has not power under the terms of Mrs. Udenheimer’s will to make him a perfect title for the property; and on this question the opinion of the Court is asked.</p> <p>No other objection is taken to this title.</p> <p>If the Court be of opinion that the plaintiff under the terms of the said will, can make a perfect title for the real estate in question, then judgment for five hundred dollars to be entered for the plaintiff to be released upon the defendant’s acceptance of a deed for the property, from the plaintiff; but if the Court be of a contrary opinion, then judgment to be entered in favour of the defendant. Costs to follow the judgment.”</p> <p>1. The power of sale is co-extensive with the devise. By the act of 8th April, 1833, \ 10, (P. L. 1832-33, p. 249,) “ real estate acquired by a testator after making his will, shall pass by a general devise, unless a contrary intent be manifest on the face of the will.” Manifest, means, not doubtful, plain, that which is showed clearly. Ambiguity of expression, silence, absence of intention, is not enough. In such case the estate will pass by virtue of the act of assembly. There is not on the face of this will, a clear, indubitable intent not to pass subsequently acquired real estate, and nothing short of such unqestionable negative intent, is, under the act of assembly, sufficient. There may be a difference of opinion as to the wisdom of this provision of the act, but the language being clear, the Court will not speculate upon the policy of the legislation.</p> <p>2. The testator blends her real and personal estate. She makes no distinction between the two. She intended to make none; and as after-acquired personalty passes, so will after-acquired realty.</p> <p>3. She devises all the real estate, which she had any “power to dispose of.” She had “ power to dispose of” this after-acquired realty. The act of the 8th of April, 1833, gave her this “power.” It was then lately passed. The occasion of the act and the passage of the act were matters of more than usual notoriety; and it is probable that the testator had reference to this very “power to dispose of” after-acquired real estate which the act gave.</p> <p>4. The power of sale, extends in the words of the testator to all her real estate, without the use of any verba de presentí, because she authorises her executors to sell “such parts of her real and personal estate as has not been before disposed of,” and there is no specific devise of any real estate prior to the residuary devises.</p> <p>The case is without precedent. Busby v. Busby, (1 Dali. 226, ad fin.) Turbett v. Turbett, (3 Yeates, 191.) Potter v. Potter (1 Vesey, 437,) bear indirectly upon it, though these cases refer to the quantity of estate.</p> <p>The plaintiff’s argument is strong, but the law is unsettled and the title offered cannot be pronounced with certainty, good. The act was passed to remedy Girard v. Philadelphia, &c. (4 Rawle, 323,) which declared, that by no language, however strong, could after-acquired realty be passed. The remedy is but commensurate with the mischief. The legislature did not mean that expressions applied to present owned estates, shall reach round every thing which a testator during a long life may acquire. It is doubtful if the plaintiff’s construction will effectuate intents, or what would have been intents had the testator’s mind acted on the subject-matter. It will be seen’ that shocking effects will be produced, in some cases, by such a construction. A testament is defined, testaiio mentis; yet the strength of the plaintiff’s argument is in the absence of intent.</p> <p>2. The language is, what “ I am seized of,” and the expression “ that I have any power to dispose of,” is applied to that expression only.</p> <p>3. The act does not require negative words, and negative intent may be manifested by affirmative words pregnant with exclusion. It is so here. The testator, by words at once general and precise, devises all she owned at the date of her will, and she makes no devises as to what she might acquire. Is not the disposition of the first, pregnant with non-disposition of the second ? How can it be argued that expressions applied only to the first, include the second also. In Gibbons v. Ogden, (10 Wheaton, 503,) the Court argued that it was not necessary to the regulation of commerce under the Constitution, that Congress should have acted in the matter, or have expressed an intent not to act: that regulation might consist in absolute non-action : and that not doing anything, Congress showed its intent to do nothing. The principle is the same under another form. A will is a specification of positive intents, not of exclusions of negative ones. All I am seized of, ex propria vigore, excludes what I may hereafter become seized of. In an instrument of specification, not of exclusion, silence becomes equivalent to negative expression.</p> <p>4. The intent is manifest on the face of the will. It can be manifested no where else, for you cannot go dehors the will. Negative words, could hardly be more striking, than is the absolute silence as to after-acquired realty, contrasted with the unequivocal and precise language as to that owned at the date of the will.</p>

IN' ERROR. Error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment for a house and lot of ground in the city of Philadelphia. In the Court below, both parties derived title under Leonard Strieker, who died on the 28th of August, 1834. The plaintiff as as his next of kin; the defendant, Mrs. Eliza Strieker, his widow, under, an alleged devise from him.

IN ERROR. Error to the District Court of the City and County of Philadelphia. ¡ On: the return of the record it appeared, that Robert Dobson brought an action on the casein that Court against Louis Bomeisler and Mitchell Bomeisler, late trading under the-firm of Bomeisler & Brother, and Ceorge Peterman who survived Jacob Peterman, late trading under the firm of Jacob & G. Peterman. • The declaration contained five counts, viz. 1st, For money had and received; 2d, Money paid,…

APPEAL. This was an appeal from a decree of the District Court for the City and County of Philadelphia, in the matter of the distribution of the proceeds of the sale of certain real estate sold by the sheriff, by virtue of an execution in an action in that Court, brought by Moroney, to the use of H. B. Pennock, against Samuel Copeland.

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia to remove the record of an action on the case brought by The Union Bank of Louisiana against Solomon Allen, Moses Allen and William Clark, junior, trading as Allen, Clark & Co. The action was commenced by summons which was seiwed on Solomon Allen; and the sheriff returned nihil hahet as to each of the other defendants.

IN ERROR. This was' a writ of error to the judges of the Court of Common Pleas, holding a Court of Oyer and Terminer for the county of Bucks, to remove the record of an indictment against Henry Chapman, for arson.

APPEAL. This was an appeal from an order of the Court of Quarter Sessions of the County of Lehigh, quashing an order made by two justices of the peace, for the-removal of one Nathan Lynn, a pauper, from the township of Lynn to the township of Heidleberg, in that county.

IN ERROR. Error to the Common Pleas of Montgomery County. Daniel 'M'Kinney brought an action before a justice of thdpeace against Samuel Sherwood and obtained a judgment; from which the defendant appealed on the 3d of September, 1839; but the transcript from the justice’s docket was not filed before the first day of the next term of the Common Pleas.

Ilf ERROR.. Error to the Quarter Sessions of the county of Bucks.

CERTIORARI. CeRtiorari to the Quarter Sessions of Lehigh County, to remove the proceedings in the matter of vacating a road in the borough of Allentown, beginning at Jordan Bridge and ending at the eastern extremity of Andrew street.

IK ERROR. Error to the Common Pleas of Northampton County. In 1836, George Kelly brought an action before a justice of the peace of Northampton county, against William Eichman and Christopher Midler, to recover a balance of money alleged to-be due by the defendants for work done to a certain building.

<p>IN ERROR.</p> <p>Error to the Common Pleas of Northampton county.</p> <p>Jacob Hartzell brought an action of account-render in that Court against John Steffen. The declaration contained two counts. The first count averred that “ whereas heretofore, to wit, on the first day of January, in the year of our Lord one thousand' eight hundred and thirty-two, and from thence for a long space of time, to wit, hitherto, the said Jacob was lawfully possessed of one undivided third part, the whole in three parts, to be divided, of and in a certain lime kiln, with the appurtenances, situated in the township of Upper Saucon, in the county aforesaid; and the said John, during the time aforesaid, had the care and management of the whole of the said premises, with the appurtenances, to receive and take the rents, issues and profits thereof; and as bailiff of the said Jacob of what he received more than his just share and proportion thereof, to render a reasonable account thereof to .the said Jacob, and his said share thereof, when he, the said John, should be thereunto afterwards requested, according to the form of the statute in such cases made and provided. And although the said John, during the time aforesaid, at the county aforesaid, received more than his just share and proportion of the rents, issues and profits of the said lime kiln, with the appurtenances, and the said Jacob’s share thereof, that is to say, the whole of the rents, issues and profits of the-said lime kiln, with the appurtenances; yet the said John, although he was afterwards, to wit, on the first day of January, in the year of our Lord one thousand eight hundred and thirty-eight, at the county aforesaid, requested by the. said Jacob so to do, hath not rendered a reasonable account to the said Jacob of the, said rents, issues and profits so received as aforesaid, or either of them, or any part thereof, or of the said share of the said Jacob, or any part thereof, but hath hitherto wholly neglected and refused so to do, contrary .to the form of the statute,” &c.</p> <p>The second count averred that “whereas also, the said John heretofore, to wit, on the day and year aforesaid, and from thence for a long space of time, to wit, hitherto at the county aforesaid, was bailiff to the said Jacob of one undivided third part or share of a certain stone lime kiln and premises, to wit, at the county aforesaid; and the said John, during all the time last aforesaid, as such bailiff, took and received the rents, issues and profits of the said last mentioned lime kiln with the appurtenances, to render a reasonable account to the said Jacob when he should be thereunto afterwards requested. Yet the said John, although he'was afterwards, to wit, on the first day of January, in the year of our-Lord one thousand eight hundred and thirty-eight, at the county aforesaid, requested by the said Jacob so to do, hath not, as yet, rendered a reasonable account to the said Jacob of the said last mentioned rents, issues and profits so received as aforesaid, or either of them, or any part thereof, but hath hitherto wholly neglected and refused so to do, contrary to the form of the statute,” &c, ' • .</p> <p>The defendant pleaded ne unques bailiff or receiver, and fully accounted; and on these issues the cause came on for trial before Banks, Prest., on the 4th of May, 1839, when the plaintiff called one Thomas Ott as a witness, who was objected to on the ground that the plaintiff had stated in his opening that the defendant, the plaintiff, and Thomas Ott, the witness, agreed to build a lime kiln, and each to burn in it, and that when strangers burnt in it, they were to pay a certain sum. The defendant also, objected to this .evidence as not admissible under the pleadings. The Court how* ever, overruled the objections; and the defendant excepted.</p> <p>Thomas Ott testified that the hme kiln was built in partnership ; that Jacob Hartzell, John Steffen and die. built it, and repaired it’ altogether, &c.</p> <p>The jury returned a verdict for the 'plaintiff for five dollars and six cents. A motion .was then made for a rule to show cause why judgment should not be entered without 'costs; which after argument was discharged ; and judgment was entered upon the verdict.</p> <p>This writ cif error Was then taken; and the following exceptions filed.</p> <p>“ 1.- The Court erred in admitting Thomas Ott as a witness.</p> <p>2. The Court eri’ed in admitting the .testimony of Thomas Ott.</p> <p>,3. The Court erred iri discharging the rule to show cause why the judgment should not be entered without costs: the Court should have made the rule absolute.” .</p> <p>1. That Ott was not a competent witness: they cited Black -v. Marvin, (2 Penn. Rep. 138.)</p> <p>2. That the. evidence offered varied from the declaration which stated Steffen "to be the bailiff of Hartzell- alone instead of the partnership, which the testimony went to prove. Jordan v. Wilkins, (2 Wash. C. C. Rep. 482.) .</p> <p>3. That the recovery being for a sum under f 100, the plaintiff had no right to costs. Master v. Trumpbour, (5 Wendell, 274.) Brubacker v. Robinson, (3 Penn. Rep. 295.) MFadden v. Irwin, (2 Wharton’s Rep. 41.) Galbreath v. Moore, (2 Walts, 86.) Camp v. Walker, (5 Watts, 482.) Willes, 208.</p> <p>1. This action is brought under the statute of 4 & 5 Ann., c; IG, § 27, by one tenant in common against another; and it is settled that one tenant in common may be a witness for another. Bennett v. Helhington, (16 Sei-g. & Rawle, 193.) ‘The statute of 4 & 5 Ann. is in force here. Irwin v. Hanlon, (10 -Serg. & Rawle, .220.) The variance was immaterial. One tenant in common can be charged only for what he has received beyond his share.</p> <p>2. A justice of -the peace has .no jurisdiction of an action of account-render.' Wright v. Guy, (10 Serg. & Rawle, 227.) The plaintiff was not- bound to bring assumpsit, merely because a justice of the peace has jurisdiction of that form of action.</p>

<p>A. one of the children of an Intestate took the real estate at a valuation, and entered into a recognizance in the Orphans’ Court with condition to pay to the widow and other heirs of the deceased, their several shares and purparts of the valuation. A. afterwards conveyed the land to B„ subject to the payment unto the other children .of tjie intestate of their respective shares, and the widow’s yearly interest during her lifetime. B. conveyed the land to tho defendant subject to the payment of their shares to the children of the intestate, and of the interest to the widow, &c. A. assigned to C. all his interest in that part of the valuation money the interest of which was payable to the widow ; after which the widow died. In an action by A, to the use of C. to recover from the defendant this part of the valuation money, it was held, (1st.) That A. was not a competent witness to support the claim. (2d.) That by the acceptance of the land at the valuation, A.’s share of .the valuation was extinguished; and that parol evidence of an agreement between A. and B. that the amount of the claim should remain a lien on the land, was not admissible : there being no allegation of any mistake by the scrivener in drawing the deed,</p>

<p>Under the act of assembly to authorise the governor to incorporate the Philadelphia and Delaware County and Southwark Rail Road Companies, passed the 2d day of April, 1831, the Court of Common Pleas by whom the jurors may be appointed to assess the dam*, ages sustained by the owner of land taken lor the rail.road, has no power to’ examino, into the merits of the report and set it aside oh the mere ground of inadequacy or excessiveness of damages. , ' ■ '</p>

<p>IN EQÜITY.</p> <p>This was a suit in equity instituted by Daniel S. Davis against Benjamin Gerhard, Esq., Joseph P. Norris, Esq. and Benjamin Brown.</p> <p>The bill set forth that the complainant was a just and lawful creditor of a certain Charles F. Roberts in his lifetime, and, since his death, of his estate, in the amount of one thousand dollars, in two promissory notes, drawn and signed by the said Charles F. Roberts, payable to his own order, and endorsed by him; each for five hundred dollars. That the said Charles F. Roberts died sometime in the month of October, one thousand eight hundred and thirty six, unmarried and without lawful issue, leaving a last will and testament, which has been proved in the office of the register of wills, &c., in the city of Philadelphia, and by the 'same will, appointed a certain John J. Smith, and a certain Benjamin Brown, his executors; that the said John J. Smith refused to act, and renounced his appointment as executor and died soon after; and that the said Benjamin Brown proved the said will and took upon himself the office of executor thereof; and that the payment of the said promissory notes being refused by the said Benjamin Brown, executor as aforesaid, the complainant proceeded at law against him in the District Court for the City and County of Philadelphia, to December Term, 1836, and issue was joined, and the complainant obtained judgment on the said two promissory notes against the said Benjamin Brown, as executor aforesaid, for the sum of one thousand and fifty-two dollars, fifty cents, in March Term following, which sums, with interest from the date of the said judgment, and the costs of suit, the complainant averred to be wholly and entirely actually due to him, and that he had not received payment, or any kind of satisfaction, for the whole or any part thereof, from any person whatever. The complainant farther averred, that the said Charles F. Roberts was, during his life, in the actual and sole possession and enjoyment of a large real estate ; and, for the purpose of hindering his creditors then existing and subsequently to exist, and of excluding all to whom he should subsequently become indebted, from satisfaction of their demands, did, by a voluntary deed dated the eighteenth day of April, a. d. 1834, purporting to be made for the nominal consideration of one dollar, convey and transfer the whole of his real estate whatsoever and wheresoever the same might be, of which he was seised, or entitled unto, in possession, reversion, or remainder, and all his estate and rights, and all the appurtenances and incidents thereof, and all the estate, right, title, &c. of him, the said Charles F. Roberts, as well at law as in equity, of, in, to, and out of the same, to a certain Joseph P. Norris, Jun., and a certain John J. Smith, their heirs and assigns, &c., in trust, for certain intents and purposes thereinafter limited, created and declared of and concerning the said real estate, viz. (among other things) to let and devise the lands, tenements and messuages thereby granted, for the best yearly rent that could be obtained therefor, and to receive the rents, issues, profits and income thereof, when and as the same should become payable, and also to receive ground-rents as the same became due, and also such ground-rents as might be created by the said trustees, by virtue of a power granted to them by the said deed, and out of the said rents, issues, and income, first to apply so much as might be necessary to pay and discharge taxes, and ground-rents growing due, and for keeping the premises in good tenantable order and repair, and for ail reasonable costs and charges attending the execution of the trust; and in further trust that the said trustees should, from time to time, pay over the surplus income to him, the said Charles F. Roberts, upon his own receipt; and in their discretion to pay and apply the same for and towards his maintenance and support, for and during all the term of his natural life, but in such way or manner that the same should not be answerable for, nor in any manner liable to the debts and engagements of the said Charles F. Roberts, contracted after the execution of the said deed, nor be liable to any charges, incumbrances, assignment or anticipation of him the said Charles F. Roberts: and that from and immediately after the decease of the said Charles F. Roberts, the trustees should hold all the trust estate in trust to and for the only use and behoof of certain natural children of the said Charles F. Roberts; with certain other provisions, and a power to the said Charles F. Roberts to dispose of the estate by will, and to the trustees to sell and invest the proceeds on the same trusts.</p> <p>The complainant then averred that the said John J. Smith, one of the trustees named in the deed, having taken upon himself the execution of the trust, died some time in the winter of 1836-7; and the said Joseph P. Norris, jr., who had also taken upon himself the execution of the trust, survived him and acted as trustee, and in execution of the trusts of the deed, until some time in the month of April, May or June, a. d, 1837, when a certain Benjamin Ger-hard became trustee in the place of the said Joseph P. Norris, jr.; and as such trustee became seised of all the real estate of the said Charles 'F. Roberts, which passed under the deed, subject to the trusts thereof.</p> <p>The complainant averred that there was reason to believe that the said Charles F. Roberts left sufficient real and personal estate wherewith the judgment which he had obtained against his estate might be satisfied: that the real estate had been conveyed and transferred without consideration as before stated; and that the persona] estate had been removed and transferred without consideration, "or concealed; and that by reason of such concealment, and of such fraudulent transfer, the complainant was prevented from having execution of his judgment,</p> <p>The complainant then averred that in order.to realise and obtain the amount of his judgment, he did, in June term, 1837, take out a writ of fieri facias on the same, returnable to the first Monday of July, 1837; and that the same had been returned “nulla bona.” That the deed of trust contained no specifications, nor any designation, general or particular, of any property, or pieces of property, nor any of the lands, tenements or hereditaments owned by the said Charles F. Roberts, which passed under the same; and was not accompanied by, nor had the complainant ever been able to see or hear of any schedule or list or description of such or of any property; nor had he any means, except with the aid of this Court, of discovering any real property ; neither did he know nor can he discover any personal property of the said Charles F. Roberts, so as to levy thereon and expose the same to sale in satisfaction of his debt.</p> <p>The bill then proceeded to aver that the real estate so conveyed and assigned in trust were justly and equitably liable to the payment of his judgment; and that the said deed was utterly void as against him as a judgment creditor; and that ail the personal estate of the said Charles F. Roberts in the possession or knowledge of the said Benjamin Brown, was liable to the payment of the said debt.</p> <p>The complainant further averred that the said Charles F. Roberts did, by his last will and testament, order and direct the payment of all his just debts and funeral expenses; whereby he became entitled to have this debt paid by the said Benjamin Brown, executor, or the said Joseph P. Norris, jr., or the said Benjamin Gerhard, each being for the time trustee; that the said Benjamin Gerhard, Benjamin Brown and Joseph P. Norris, jr., or some of them, have possession and knowledge of all the real and personal property of the said Charles F. Roberts, in which he had any interest immediately preceding and at the time of his death, and also of all the real property in which the said Charles F. Roberts had any interest, or to which he was entitled at the time of the execution of the deed of April 1 8, 1834, or since, or if not now in the possession, management and knowledge of the same identical pieces of property, then of the value or consideration of such pieces as are not now in his or their possession or control; and that the said Benjamin Brown, Benjamin Gerhard or Joseph P. Norris, jr., or some one of them can make discovery of such facts concerning the existence, nature, amount and locality of the said Charles F. Roberts’s estate as will enable the complainant to have satisfaction of his judgment.</p> <p>The complainant then averred that he had repeatedly applied to the said Benjamin Brown, executor, and to the said Joseph P. Norris, jr., and to the said Benjamin Gerhard to pay the said judgment debt, or to make known to him the description and the locality of the real estate of the said Charles F. Roberts, and the description and kind of personal estate of the said Charles F. Roberts, in order that he might be able to cause execution to be levied of the same, and his judgment to be satisfied thereof; but that the said Benjamin Gerhard, Joseph P. Norris, jr. and Benjamin Brown, had refused to pay the said debt or to furnish the information asked for.</p> <p>The bill then prayed in the usual manner a discovery of all the real and personal estate of the said Charles F. Roberts, and of the acts and doings of the executors and trustees in the premises.</p> <p>The defendant, Benjamin Gerhard, Esq., filed a separate demurrer and answer; alleging in his demurrer that it appeared by the complainant’s own showing, that the property which passed under the deed of the 18th of April, 1834, was not subject to any execution that might be issued on his judgment; and also for further cause of demurrer, that neither the heirs of C. F. Roberts nor his devisees, were made parties to the judgment obtained against his executors.</p> <p>The answer denied knowledge of the promissory notes mentioned in the bill; admitted the death of C. F. Roberts leaving a will and personal property ; and denied knowledge of any real estate acquired by C. F. Roberts after the deed of 1834, or of any fraudulent transfer or concealment of any of his property.</p> <p>The defendant set forth copies of the deéd of 1834, and of a deed executed by J. P. Norris, Esq. on the 5th of May, 1837, by which the trust estate was conveyed to him.</p> <p>The demurrer came on now for argument, when the Court suggested doubts with respect to their jurisdiction; and this point was spoken to by</p>

This was an appeal from a decree of the Orphans’ Court of North ampton County, in the matter of the accounts of John D. Bauman, guardian of Benjamin F. Stem, a minor. It appeared that Jacob Stem, the father of the ward, died intestate, leaving several children and some persona] property, including debts due to him. The administrators assigned these debts to the guardians of the children in proportion to their interests in the estate.

<p>IN ERROR.</p> <p>Error to the Common Pleas of Chester County.</p> <p>In the Court below an action of ejectment was brought by Jacob Chalfant and Mary Bucher against Rachel Baker and Sarah Fredd, to recover three several tracts of land, situate in the' township of East Marlborough, ■ in the county of Chester; “ the first whereof Contains ninety acres, or thereabouts, with the appurtenances, and is bounded by land of Thomas Webb, Job Hayes, and others: the second whereof contains one hundred and ten acres, or thereabouts, with the'appurtenances, and is bounded by land of John Reed, John. Malin and others: and the third whereof contains twenty-one acres, or thereabouts, with the appurtenances, and is bounded by lands of the said plaintiff and others.”</p> <p>By agreement, of the counsel, a case was stated for the opinion of the Court, as follows: which was to be considered in all respects as if the facts had been found by a special verdict.</p> <p>“Caleb Chalfant died August 31st, 1839, seised in his demesne as of fee of the three tracts of land above described.</p> <p>Henry Chalfant, the father of Caleb, was the fee-simple owner of the first tract. He died January — 1817, intestate, leaving issue two sons, Caleb and Abner, to whom the said tract of ninety acres descended. It was held by them as tenants in common, till about four years ago, when Abner released his moiety to Caleb, by whom it continued to be held till his death.</p> <p>. • The second tract, of one hundred and ten acres, was owned and held by Jane Jackson, who intermarried with Abner Chalfant, above named, and joined with him in a conveyance of the same in the year 1831, to Alexander Chandler, who immediately after conveyed to the said Abnér. The wife soon after died. Abner Chalfant continued to hold the property till his death, on the 30th day of March, 1839. He left to survive him, Edith, his third wife, (who is still living,) but no issue. The last mentioned tract, on the death of Abner Chalfant, descended to the said Caleb Chalfant, who entered and continued seized till his death, subject to the rights of the widow-of Abner, under the intestate laws of the commonwealth.</p> <p>■The third tract above-mentioned, the said Caleb Chalfant acquired by purchase several years before his death.</p> <p>Upon the death of Caleb Chalfant, the said defendants entered upon the said three tracts of land, and ousted the plaintiffs.</p> <p>Henry Chalfant, Sen., was the common ancestor of the plaintiffs, and of Caleb and Abner Chalfant. He died, leaving- issue Henry Chalfant, Jr., Jacob Chalfant, one of the said plaintiffs, Mary Chal-fant, (now Bucher) the other of the said plaintiffs, Jonathan Chalfant, Thomas Chalfant, Caleb Chalfant, Sen.-, and Elizabeth, intermarried with Joseph Dickinson, all of whom are now deceased, except the plaintiffs.</p> <p>Henry Chalfant, Jr. left issue Abner and Caleb Chalfant, as aforesaid. . . ' .</p> <p>Jonathan Chalfant left issue eight children, two of whom are living, and two dead, unmarried and without issue. The other four left issue.</p> <p>Thomas Chalfant left issue one child, who is living.</p> <p>Caleb Chalfant, son of Henry, left eight children, two of whom are deceased, leaving issue.</p> <p>Elizabeth intermarried with Joseph Dickenson; left issue six children, one of whom is dead, leaving issue.</p> <p>Caleb Chalfant, son of Henry, Jr., survived all the above mentioned decedents.</p> <p>Henry Chalfant Jr. intermarried with Susan, the widow of Isaac Swayne, by whom she then had two children, Rachal and Sarah Swayne.</p> <p>Rachel intermarried with Nathan Baker, who is deceased, and Sarah- with Benjamin Fredd, who. is also deceased. The said Rachel and Sarah, the defendants above-named, are half-sisters of the said Caleb and Abner Chalfant, being children of the same mother.</p> <p>The question submitted is, whether the plaintiffs are entitled to recover the whole or any part of the above mentioned tracts. If they are entitled to recover the whole of said tracts, or any one of them, then judgment to be entered in their favour for the tract or tracts which they are thus entitled to recover, with costs : if they are entitled to recover a part or parts of all or either of the said tracts, then judgment to be entered in their favour for such part pr parts as they may thus be.entitled to with costs.</p> <p>If entitled to recover no part, then judgment to be entered for the defendants, with costs.”</p> <p>Upon this case the Court of Common Pleas after argument gave judgment for the plaintiffs on the 15th of February, 1840; whereupon this writ of error was taken out.</p> <p>cited Collingwood v. Bace, (1 Ventr. 413.), 2 Black. Com. 223. Robertson on Succession, 334. 3 Cruise, 364. Reeves's Law of Descents, 382.</p> <p>cited Nicholson v. Halsey, (1 Johns. Ch. Rep-.421.) Williams on Executors, 908, 930. 2 Ld. Raymond, 496. 1 P. Wins. 595. 2 Vernon, 168. 1 Ld. Raymond, 573. .</p>

<p>1. Under the act of the 12th of April, 1828, incorporating- the Delaware and Schuylkill Canal Company, a person who may be injured by or receive damage from the works of the company, or by reason of the making of the canal, may commence proceedings, and obtain an assessment of damages, as soon as’the injury or damage has been sustained by him; although the canal has not been completed throughout.</p> <p>2. On a certiorari to remove proceedings tor the assessment of damages in the case of a canal, &.C., the Supreme Court will not examine into exceptions which depend on depositions taken in the Court below, relating fo the assessment of the damages.</p>

<p>The defendant being- indebted to the plaintiff for goods sold, drew a bill of exchange for the amount on A. which was duly accepted, but not paid. An action of assumpsit was then brought by the plaintiff against the defendant, in which the plaintiff declared for goods sold, work and labour done, and on an account stated. This action was arbitrated by the defendant.' At the hearing before the arbitrators the plaintiff produced no other evidence than the bill of exchange. The arbitrators found that the plaintiff had no cause of action. The plaintiff appealed; and on the trial before the jury the plaintiff gave in evidence his book account but not the bill of exchange. A verdict and judgment were given for the defendant. A new action was then brought, in which the plaintiff declared against the defendant as the drawer of the 'bill of exchange. Held, that if the bill of exchange were taken in payment and satisfaction of the debt for goods sold, &c., it formed a distinct cause of action; and that the verdict and judgment in the action for the goods sold, &c. were not conclusive against the right to recover in this action.</p>

<p>A bill of exchange payable six months after date, was accepted by the defendants payable at the Bank of North America. The bill became due according to its tenor on the 31st of August, 1837, but was not presented at the Bank of .North America for payment at that time, and the defendants did not know in whose possession it then was. On the 31st of August, 1837, the defendants had in the Bank of North America money for payment of the bill, and kept the same there until the 1st of February, 1838, when they drew it out and used it for the general purposes of their business. The bill was presented |at the bank for payment on the 3d of July,' 1839. Held, that the defendants were liable for interest on the bill, from the 1st of February, 1838, when they withdrew the money from the bank.</p>

<p>IN ERROR.</p> <p>This was a' writ of error to the Court of Common Pleas of Northampton County to remove the record of an action of trespass quare clausum fregit brought by Joseph Unangst and Christian Brown against Abraham. Shortz, Jacob Herman and eleven others!</p> <p>The plaintiffs were the trustees, and the defendants members of a religious society called “ The German Lutheran Congregation of the Dry Lands.”</p> <p>In the year 1788, an agreement’was 'entered into between this congregation and another called “ The German Reformed Congregation of the Dry Landsin which, after reciting that they had together- erected a church upon a certain lot of ground taken up by them for that purpose and for their mutual benefit, they agreed upon the following rules and regulations “ for the preservation of the church, its discipline and government.”</p> <p>“ 1st, That the above described piece of land shall forever remain the land, and on which no more than one church and school-house in common are to be erected. 2d, These 7 or 8 acres school and church land, shall, in case of purchase, be jointly bought and paid .for by both congregations. 3d, The number of trustees which have just now been elected, shall always be retained (remain in office) in our church; in case some way or .other a vacancy of a trustee should take place, said vacancy shall be filled up by the majority of votes (of the congregations.) 4th, The trustees-shall in conjunction with and by consent of the elders and wardens have the right to elect arjd remove the minister. 5th, The resolution of the trustees, elders and wardens, as regards the election and removal of the minister,-shall be fully binding,. if two-thirds are' agreed. 6th. At' the election of an elder and warden, as well' a's the election of a trustee by the congregation, the minister shall have an equal right in electing elders and wardens (to vote for,) shall however have but one vote. 7th, In case one of these two congregations should intend to call or elect a minister, he shall be bound to prove his ordination. 8th, No (other) minister shall preach in this church, except by the consent of the (regular) minister and vestry, whose part it is at such time to direct public worship. 9th, Public worship shall be held in the same manner as heretofore, to wit, the Reformed as well as- the Lutheran congregations shall hold public worship every two weeks (in rotation); one congregation shall have as much right as the other; but should, for certain reasons, the Sundays be changed (the preaching in rotation every two weeks), it shall be decided by the majority of the vestry in both congregations. 10th, The elected trustees shall, during worship, occupy in church one of the front seats; the elders and wardens shall have the next seat. Those (of the trustees, &c.) shall occupy the front seat, on whose side worship is held.- 11th, The expenses requisite for administering the Lord’s Supper, shall be taken from the collection money. 12th, There shall be rendered an annual church account, and the money remain (kept) in common, until the church is paid after this each congregation shall apply their collection money to their benefit, without being accountable for it to the other. 13th, Should it become necessary to erect or repair a schoolhouse, both congregations shall build and keep it in repair, without taking the costs from the collection money, except it be done by mutual co'nsent of both congregations. '14th, Each holy day a collection is' to be taken up, which is always to go to the repairs of the church. 15th, Both congregations shall have the right to erect tomb-stones for their deceased (friends.) 16th, At no time whatsoever (now and never) no minister, whoever he may be, shall have permission to preach in this church, except he be a Christian Reformed or a Christian Lutheran minister.”</p> <p>This agreement was signed by four trustees, four elder's and two wardens.</p> <p>On the 10th of June, 1794, Sarah Wistar executed a conveyance of the premises to Matthias Gress and Christian Brown upon the following trust.</p> <p>“ In trust nevertheless, for and as a scite for one or more houses of religious worship and a burial place for the use of the said German Lutheran and German Reformed Congregations or religious societies aforesaid. And upon this further trust and confidence, that they the said Matthias Gress and Christian Brown, and the survivor of them his heirs and assigns, shall and will permit and suffer the said premises hereby granted, and the buildings thereon erected and hereafter to be erected from time to time, and at all times hereafter forever, to be at the disposal and under the care, regulation and management of the said two religious societies or congregations aforesaid, and to and for no other use, intent or purpose whatsoever.”</p> <p>On the 21st of April, 1837, Matthias Gress, the survivor of these trustees, executed a conveyance of the premises to Joseph Unangst and Christian Brown on the same trusts. *</p> <p>A difference of opinion arising in the German Lutheran Congregation, respecting the appointment of a minister, who had been elected, as alleged, by the vestry, the question was brought before the synod, which met at Reading in May, 1834, which determined that the matter ought to be referred to the congregation. An election was accordingly held, when a majority of the congregation d'eclared against the Rev, Mr. Yeager, who had been appointed by the vestry. He .continued to preach however under the authority of the council. The party in the church who approved of his election, got possession of the key of the. church and nailed up the doors and windows. The defendants broke open the windows and entered the church; for which alleged trespass this action was brought.</p> <p>On the trial before Banks, President, the plaintiffs’ counsel gave in evidence the agreement and conveyances above mentioned and the fact of the entry by the defendants. .</p> <p>The following points of evidence were ruled—</p> <p>1st. The defendants’ counsel offered in evidence a declaration or disclaimer by Christian Brown, one of the plaintiffs, as follows:</p> <p>“Whereas, I have understobd that my name has been used as one of the plaintiffs in this suit. Now I hereby testify and declare that my name has been so used without and against my consent, and that I was and am unwilling that my name shall be so used; and I do therefore hereby disavow the said suit or having any part therein. And I further certify, that I have always been willing and yet am willing, that the members of the religious society called “The German Evangelical Lutheran Congregation of the Dry Lands,” should have permission to use the premises usually called the Dry Land Church, (for an alleged entry into' which, I understand this suit has been brought) for purposes of religious worship; and that they had my permission for entering the said church, for the purposes aforesaid, so far as I could give the same, on the occasion of the alleged entries, for which I understand this suit has been brought. Witness my hand and seal this 22d day of August, a. d. 1837.”</p> <p>It appeared that a bond of indemnity against the costs and charges of the suit had been given to him.</p> <p>The paper offered was objected to by the plaintiffs’ counsel; but admitted by the Court and exception taken.</p> <p>2d. Parol evidence having been given to prove that the defendants were members of the congregation, a witness was offered to prove that Abraham Shortz, one of the defendants, was the son or grandson of George Shortz, one of the original contributors to the pudding of the church. This was also objected to, but admitted and exception taken.</p> <p>3d. The defendants offered evidence to prove, that the synod had decided that there was no regular pastor of the church at the time the trespass was committed. This also was objected to, but admitted for the purpose stated, and exception taken.</p> <p>, 4th. The defendants offered the list of voters at the election ordered by the synod in 1834. This was also objected to, but admitted, and exception taken.</p> <p>5th. The.minutes of the synods held in 1834 and 1835, relating to the questions in dispute in the congregation, were offered in evidence, objected to, admitted, and exception taken.</p> <p>6 th. The defendants offered in evidence a charter of incorporation granted to a part of the congregation under the name of “ The German Evangelical Lutheran Church of the Dry Lands,” on the certificate of the judges of the Supreme Court, dated the 3rd of March, 1837, together with the minute book of the congregation; this was also objected to, but admitted, and exception taken.</p> <p>7th. The plaintiffs offered in evidence six protests against the charter of incorporation granted to the German Evangelical Church of the Dry Lands signed by divers members, which were objected to by the defendants’ counsel, and rejected by the Court and exception taken.</p> <p>8th. The defendants offered in evidence a notice to the plaintiffs dated the 15th of May, 1837, and signed by Abraham Shortz and others, styling themselves the “ Trustees of the German Evangelical Lutheran Congregation of the Dry- Lands,” demanding the use of the church and premises for the purpose of religious worship. This was objected to by the plaintiffs’ counsel, but admitted by the Court and exception taken.</p> <p>9th. The- defendants offered in evidence a notice from the trustees and wardens of the “ Reformed Church of the Dry Lands,” to the church council of the Lutheran Congregation, asking the use of 'the church and premises for the Evangelical Lutheran Congregation; which also was objected to, but admitted, and exception taken.</p> <p>The evidence given on the trial is Sufficiently stated in the charge of the learned judge, which was in substance as follows:</p> <p>The right to the property, which is the subject-matter of this dispute, appears to have, originated as'early as the 5th of June, 1788. On this day, articles were signed by the officers of the two congregations. It appears that they had in the first instance taken up the land-as vacant and selected a situation for their house of worship, and built it. The property was t.o remain “ theirs and their posterity’s forever.” This house was jointly built. This article provides for the erection of but one house of worship and a school-house. Afterwards another agreement was made, which provided for the purchase of the property. The land was to be purchased and paid for by both congregations jointly. Each congregation was to hold an equal right, and contribute an equal portion to enable them to acquire the right to the property. By their articles of association no minister was permitted to preach in the house, but by the consent of the regular minister’ and vestry. Preaching in case of a vacancy does not appear to have been contemplated, nor is it provided for. The entire agreement demonstrates an intention, that one congregation was to enjoy the same right as the other. The equality of right, extended to all the buildings, and to the grave yard. Thus matters rested until the 10th of June, 1794, when a purchase was consummated of the property, and a deed of trust made by Miss Wistar to Matthias Gress and Christian Brown as trustees. In this deed the territory is described over which the right to individuals to worship in this house extended.. It was extended to the township and its neighbourhood. This right was not limited to those who had contributed to the first' purchase, but to those who resided within this territory, who should become regular members of .the churches, or either of them. They thought the congrega-, tions might enlarge, so as to require more than one house of worship; and therefore, in their deed, provide for the erection of one or more houses of worship. By the trust deed, the trustees derived no individual right to, or interest in the property, except as members of one of the congregations. They had no right to rents or profits — no right to build, improve or repair. This was left to the two congregations. The trustees were merely legal recipients of title, and no. more. The two congregations who are the cestui que trusts of the property, were in the possession of it at the time this purchase was made, and deed executed; and so continued until 1834,-a period of forty years. During all this time, the two congregations worship-ped in this house, and enjoyed the- property in peace and harmony. During all this time there is no evidence that the trustees in the deed, as such, had the actual possession of the property. The cestui que trusts had its full enjoyment. Christian Brown, one of the trustees, must have died before 1837; for on the 21st of August of that year, Matthias Gress, the surviving trustee, conveyed the legal title on the same trusts to Unangst and Brown, the plaintiffs. Gress could convey in no other way than subject to the trusts. lie could not enlarge, diminish, or vary the-trusts. Any attempt to accomplish such change would have been a nullity. As trustees, they held jointly, not one for each congregation, but both for the two congregations. They as grantees held in trust for the two congregations under the deed, with ho individual interests, except as members. I speak now of them as trustees under the deed, and not as officers of the church. Their rights in this suit are blended together; this should be kept constantly in-mind, in this investigation. In the year 1834, Mr. Yeager, the pastor of the German Lutheran Congregation died. The first difficulty in -this congregation had its origin in their attempt to supply the vacancy occasioned by his death. In 1834, an election was had by the church council, which consisted of four trustees, four church wardens and two elders. This' church council had aright to elect'a -minister for the congregation; and on counting the votes, Mr. Yeager, son of the former pastor was elected. This selection did not give satisfaction to all-the members of the church;- and the matter -was brought before th,e next synod. In this body of Christians this -is but an advisary body, in matters' -pertaining to church judicature. Entertaining the opinion that the election of Mr. Yeager.-was -not legal, the synod recommended a new election. It was also recommended that the election should be by the votes of the members of-the congregation, and not by the church council. This recommendation was acceded to by those of the congregation who were attending the synod: the congregation also acceded to it; and an election was held in the manner indicated by the synod, and at a place and time of which general notice was given. This election was to determine -.the single question, whether Mr. Yeager should be the minister of this congregation or not. The result was against Mr. Yeager, and he was rejected by a majority of votes. It appears to have been understood, generally, that the. result of this election was to end the controversy. The election was full, and conducted with as much partizan zeal, at least, as was consistent with that Christian forbearance which one brother in the church should extend to another. Unfortunately for this congregation the controversy was not terminated. This election appears to have been the last occasion on which the two parties met together — each party endeavoured to keep up a separate organization — -each party claimed to be the church — each party insisted that the church offices were all full except that of pastor. In 1836, an application was made to the synod to have this trouble adjusted. The synod responded that they could only advise, and that they had given this advice. It will readily be admitted that the advice given by the synod was good, and it'is much to be regretted that this respectable con-' gregation had not acted on the advice thus wisely given. In 1836, the friends of Mr. Yeager filled all the vestry, or offices of the church council, and elected Mr. Yeager as their minister. A church officer cannot be turned out without notice and trial according to. the rules of the church. Nor can an office be declared vacant without some notice to the then incumbent. Each party separately used the house for church purposes. They did not mingle in divine worship, nor in any deliberations relating to church matters. How then was this election effected 1 was it on notice to the congregation generally, or only to the Yeager part of it I When the council was filled* what notice was given 1 was it to the church generally, or only to the Yeager party? You will examine this question carefully, and decide it with caution. To fill the offices with a view to elect a pastor, a notice should have been given generally, and not to that part only, which was favourable to a particular individual. After the election by the members generally, at which Mr. Yeager was rejected, his friends alone could not rightfully fill the vestry, so as to bind their opponents, without notice. The vestry, with the consent of the congregation, had yielded up their right, as regarded the election of Mr. Yeager, to the members of the congregation at large. They had decided this question. After this it would not be fair or legal, that officers should be raised by the .party defeated, to call the rejected candidate. Such a procedure would not be regular, nor would it bind the adverse party. This was one of the first steps towards a separation. By- the election of the congregation at large, in the rejection of Mr. Yeager, the office of minister in the church was declared vacant. This was the act of all, ahd as such was binding upon all. The' vanquished party, as such, by a separate action of their own, could not fill this office by a call of the rejected candidate, against the solerán, act of the entire church. The election by the congregátion was the act of all. The call of Mr. Yeager, afterwards, was but the act of a part. After his rejection by the vote of all, it.was in bad .faith for a part again to elect him, and it was in bad faith in him to accept the call. This election in 1834 by the congregation, was the last joint act of the conflicting parties. After this, each party kept up, or attempted to keep up, a separate organization. Each party held on to the church property, and to church membership. After the rejection of Mr. Yeager, when the office was declared vacant, if the congregation, as such, had gone on and filled the offices, what , these • officers might have done would have been binding. In matters relating to the church, a majority fairly expressed on any subject'within the range of their authority, must govern, in the absence of all r.ule to the contrary. Minorities, however", have their righjp as well as majorities. They have a right to be present and to be heard. The ' opportunity of participating must not be denied them. • Their right to participate cannot be cut off by the act of the majority. This call of Mr. Yeager, by his friends, appears to be the first distinct and separate act. You will say- where the first fault was — which . party set up first for itself. You will inquire and determine which party consummated the act of usurpation. It is evident that neither party intended to separate from or abandon the church. Each party clung to the church, and whatever they did was in support of their rights as church members. What they did was as disputing church members, and could not work a forfeiture of the right of fellowship in the church. The next matter which I will notice is the charter which was obtained by the one party. Much that I have said in regard to the last call of Mr. Yeager, is applicable to this point. A religious community, such as this was constituted by its articles of association, might alter its rules and regulations. This change might be effected by an act of incorporation legally invoked. How should this be done I It must be done by the congregation. Tne congregation should be notified. As being preparatory to a change in their constitutional existence, the object of the convening the members should be communicated in the notice. This would apprize the members of what was to be done, and if they did- not attend, they could not complain. When thus assembled, the decision of the majority would be binding. There is no 'other way of determining questions in such a community, .unless their articles or rules dictate some other mode. Here no other rule was dictated.' Here there is a total absence of all the' evidence requisite to'establish, that the congregation ever agreed to, or authorized any one to make and obtain this charter. No meeting was ever called- — no notice was ever given to the congregation on the subject of this charter.- Those in favour of it knew it no doubt; but those opposed to.it were designedly kept in utter ignorance of what was in progress. I may safely ask, where is the evidence that the congregation ever decided that the charter should be obtained 1 The absence of all evidence on this point is sufficient to warrant the conclusion that no such proposition was ever submitted to the action of the congregation.When or how this charter was concocted we have not been informed. All that we knew of it is, that it was carried round through the country, and the signatures which are to it were thus-obtained. This is not the assent which is requisite to bind the congregation. It would bind those who signed it, but beyond this it would not bind any other member of the congregation. Here no deliberation, or act of thé members, was had jointly, touching this charter. Plere thei'e was no joint consultation or discussion by the members on the subject. Nor was thei'e any opportunity for that joint deliberation, advice, consultation, discussion and action by the members of ^jiis church, by which they ought 'to be bound. It is all idle, and repugnant to good sense and moral honesty, to tell me that those who were opposed to this charter might have followed it to the Supreme Court, at Philadelphia, and to the executive, at Harrisburg. They were not bound to pursue its trail in obtaining this public highway assent of part of the members, nor before the Supreme Court and executive. To obtain the assent of one member at one time, and another at a different time, successively, and in detail, will not bind the congregation, unless every member should assent to it. It would not bind him who did not assent to it. The members should have been assembled in congregational council. They should have deliberated jointly. They should have acted unitedly. They should have expressed their assent and dissent in their associative capacity, and then the result duly announced,, would have been binding upon all the members. jAny other mode of proceeding would be subversive of the first principles of justice, and leave no safety to the members. If I am right in what I have said, this charter neither alters nor diminishes the right of those who did not agree to it. It therefore can have but little, if any, operation in this cause. It gave those who are parties to it no right,'against the other members who are not parties to it. As to them it is inoperative. I do not think, however, that the obtaining, of this charter made' the parties to it aliens to the church. They did not thereby relinquish church property, nor abdicate church membership. They still clung most pertinaciously'to both. They did not set up adverse to the church, nor did they claim the right to exclude their differing brethren. The charter- was irregularly obtained. The appointment or call of Mr. Yeager was irregularly made. Neither was the act of the church. Both parties were wrong. Neither, in my opinion, forfeited their rights as members of the church. It was in each case an error in the manner of proceeding. They acted separately to be sure, but neither party inten- ■ ded to separate from the church. Each party was pursuing what •they supposed to be their interests, and increasing these rights as they supposed. ‘There is nothing in the case to show that either party intended to abandon the church, but all the evidence goes to show that they did not. Thus distracted, the party opposed to tne charter determined to keep the charter party out of the house. They took the key from the place in which, it had usually been kept. ' They locked the door, and nailed the windows, and placed an armed guard on the property. They appear to have determined to bring this matter to a close, and -test their rights in a Court of law. On the day of the alleged trespass, the defendants went to prepare the house for worship on the next day. It is clearly proved that -this was their intention. They obtained the consent of the vestry of the Reformed Church; they also obtained the consent of one of the trustees who held the legal title. The key could not be found. They demanded it, but it was not given, and that it should be given was expressly'forbidden. Thus they must .be deprived of their right to worship in that house, at that time, or open the house at their peril. They risked the latter. In opening the house, no injury was done beyond what was necessarily done, in opening the door and window. In doing this, did they subject themselves to this action 1 On the trial we let in almost every thing that was offered. The door was opened wide so that the merits of the whole case might be disclosed, and this important controversy ended. It has been ably argued. The great question is, can it be sustained ? Technicalities have been spoken of on both, sides. There is an unfounded prejudice in the community on this subject. It is essentially necessary to a fair trial, that nothing should be tried but what is placed upon the record. This is equally true in civil and criminal cases. The defendant comes prepared to meet the charge or claim made against him on the record. This record is the only security he has that he will not be called upon to answer for the same matter again. The forms of action as they are well settled, must be observed. It is essential to the due administration of justice that they should be. In many cases they have become rules of right, and criterions of property, to depart from which would be destructive of the best interests of the public. With regard to •trespass to real property, the rule is this. The essential point necessary to sustain the action, is the possession of. the plaintiff. The injury to be redressed, is to the possession. Unless that party was in actual possession at the time the injury complained of was done, the action of trespass will not be supported. This is thé general rule. There is in Pennsylvania a constructive possession, which will enable the party to support this action. Take the case of unimproved land, then the title casts the possession upon the •owner,' and ,he may support trespass. This does not however apply to a case where any one is in actual possession adverse to his right. Were the plaintiffs in the actual possession of the property ? If not, they cannot repover, if any others were in actual possession at the time of the entry made. How’ was the actual , possession? The plaintiffs cldim by virtue of their trust deed. Had they possession under this trust deed? You will decide whether the trustees under the deed were in actual possession, or whether the trustees of the church were in the actual possession; for if they were, then- the -trustees under the trust deed could not sustain the action. It is not pretended that the German Reformed congregation were out of possession; for the plaintiffs disavow all intention to displace them. It is not pretended that the Yeager portion of the Lutheran congregation was out of possession; the whole case on,the part of the plaintiff, asserts that they were not. The two congregations have been in the uninterrupted possession for forty years. The trustees in the deed were trustees of the churches. ■ Did the plaintiffs take possession ? If so, when and how ? Who was in possession is a fact for you to decide. The cestui que trusts had rights superior to those of the trustees. He .who has the infeidor right cannot recover at law against him who ’ has the superior right. If the church trustees of the* German Reformed had possession, and the trustees of tho Yeager- part of the Lutherans had possession, that is actual possession; were the trustees in the deed in the actual possession at the same time ? This would be a mixed possession/ There would then be three distinct actual possessions at the same' time. You will then decide'who was in the'actual possession at the time of the entry. If the plaintiffs were in the actual possession at the time, then they could sustain this action: if they were not then in the actual possession, they could not sustain this action. Were the defendants .in this case members of the congregation, and were they in the actual possession at the time, by the direction of the trustees of the church; and did they enter by the direction of the trustees of the church for the purpose of preparing the house for worship, on the next day ? If so, the plaintiffs cannot recover. You will decide from all the evidence, what, and how,’ the possession was. Christian Brown, one of the plaintiffs and one of the deed trustees, disavows this action, and by his writing filed, acknowledges that he gave the defendants authority to do what they did do. It is also proved that he did give the defendants permission to enter, and was present when the entry was made. It will be observed that the defendants were a part of that branch of the church which was opposed to Mr,- Yeager. This branch would appear to have been the most numerous, from the fact that he was rejected. The defendants were not strangers, who entered to. do injury to the property, but members asserting their right to worship in that house. The plaintiffs were joint trustees. Their powers were equal. Could the one trustee bring trespass against the other trustee ? If Brown had done what he authorised the defendants to do, could Unangst have brought and sustained an action of trespass against him, in a court of law! I think not. If Unangst could have had any remedy, it would not have been trespass. Do not the defendants then stand in relation to Unangst, in the same right that Brown could have stood, if he had done what they did by his permission? They, acted by his authority. They may invoke his power.for their security. The defendants assert no right against the plaintiffs. They did not turn them out. They merely entered, claiming a .right to enjoy the property in common with the plaintiffs.' They do not attempt to exclude the plaintiffs. The plaintiffs claim damages at law against the defendants. The defendants excuse themselves by showing a. permission from one of the plaintiffs. In cases of tenants in common, this excuse would be available: so it would with joint tenants or co-parceners. Why not in this case? It is also in proof that the trustees of the German Reformed congregation gave the defendants 'permission to enter. If the trustees of the German Reformed had done what they authorised the defendants' to do, would this action be sustainable? I think not. .• It is said it would have been a violation of the trust. But admit it to. be so, would trespass be the ' proper remedy against the cestui que trusts, being in actual possession ? I think not. The possession of one tenant in common is the possession of his'co-tenant. If one tenant in common enters into possession, his co-tenant being in possession, trespass will not lie against him. But if one tenant in common turns the other out, trespass will lie. The facts are fully left to you as to the possession and the entry. If the plaintiffs were in the actual possession of the'property, and the defendants entered with the consent of one of themj they could not, on any principle of law and equity be considered trespassers. If they were in possession, and one of them permitted the defendants to enter, it would virtually give the possession to the defendants for that particular purpose; and- so far the plaintiffs, or one of them, would have parted with- his possession, and he could have no colour or pretence whatever, to sue them in trespass. As to the possession of the one granting permission, there would have been no violation whatever. His authority was equal with that of his co-trustee, and if he gave permission, then there would be no violation of .possession,1 either actual or constructive. If, then you believe that the defendants entered with the consent of one of the plaintiffs, and by virtue of his authority, and did not do more than they were authorised to do by him, then the plaintiffs cannot recover. Unless the plaintiffs had the actual possession of the property at the time of the entry by the defendants, they cannot recover.</p> <p>The plaintiffs’ counsel excepted to this chárge; and a verdict having been rendered for the defendants, a writ of error was taken, and on the return of the record the following errors were assigned.</p> <p>“ 1st. The Court err in saying that all the defendants had done could not work a forfeiture of the right of membership in the church, and that they could justify in this case under their claims as mentí bers.</p> <p>2d. They err in all they say in regard to the election of Mr, Yeager in 1836, and in the whole application of the election of 1834, and the proceedings in regard to Mr. Yeager to the present control, versy.</p> <p>3d. The Court err in saying that the defendants could invoke the authority of Christian Brown for their security; and in supposing that Brown had any authority over the affairs of the Lutheran congregation, or that he could give any valid permission under which the defendants could justify.</p> <p>4th. The Court err in all they say in regard to the possession of the church trustees, and of - the congregations respectively ; and in supposing that their use of the church interfered with or was adverse to the actual legal possession of the plaintiffs, or prevented their maintaining this suit.</p> <p>5th. They err in supposing that the defendants are in any better condition by reason of their not claiming (on the trial) to exclude the real owners or persons entitled to possession of the church property.</p> <p>6th. The Court err in their decisions noted in the several exceptions to evidence.”</p> <p>were cited, The People v. Runhel, (9 Johns. Rep. 156; S. C. 8 Johns. Rep. 464.) Willis on Trustees, 206. Selw. JV. P. 1019. Stambaugh v, Hollabavgh, (10 Serg. & Rawle, 362.) 6 Bac. Abr. 585, 589. 2 Str. 1238. The Six Carpenters’ Case, (8 Co. 290.) Willis on Trustees, 65. 1 Cruise Dig. 525. 3 Am. Dig. 494. 3 Chitty’s Gen. Prac. 128, 129. Willis on Trustees, 207, 222. 3 Harr. Dig. 286S. Drum v. Simpson, (6 Binn. 481.) Martzell v. Stauffer, (3 Penn. Rep. 398.) Vernon v, Henry, (6 Watts, 193.) Crosby v. Wadsworth, (6 East, 602.) Clapp v. Draper, (4 Mass. Rep. 266.) Stultz v. Dickey, (5 Binn. 285.) Commonwealth v, Jarrett, (7 Serg. & Rawle, 460.) Case of St. Mary’s Church, (7 Serg. & Rawle, 538.)</p> <p>were cited Shepherd v, MEcers, (4 ■Johns. Ch. Rep. 136.) 4 Kent’s Com. 311. Poioel on Powers, 373. Willis on Trustees, 65. 2 Selw. JV. P. 488. Cutting v. Rockwood, (2 Picker. 443.) Taylor v.-Siockdale, {3 MCord, 302.) Kennedy v. Purer, (1 Dull. 72.) Addleman v.- Way, (4 Yeates, 218.) Shenh v. Mundorf, (2 Browne, 109.) Campbell y. Arnold, (1 Johns. Rep. 511.) Tobey v. Webster, (3 Johns. Rep. 468.) Taylor v. Townshend, (8 Mass. Rep. 415.) Mather v. Trinity Church, (3 Serg. & Rawle, 512.) Dennet v. Grover, (Willes, 195.) Bagge’s Case, (11 Co. 99.) Commonwealth v. St. Patrick’s Society, (2 Binn. 448.) Commonwealth v. The Guardians of the Poor, (6 Serg. & Rawle, 469.) Methodist Church v. Remington, (1 Watts, 2Í8.)</p>

This case came before the Court upon a petition presented by John Elliott under the act of the 5th of February, 1821, relating to the release and extinguishment of ground-rents. .

<p>1. Where the separate note of one partner is taken by a creditor holding the note of the firm, it is a question of intention, whether this amounts to an extinguishment of the joint debt. The onus of showing that it is an extinguishment lies upon those who allege it; and it is necessary for them to show a special contract to that effect, or that the joint note was given up; and even where that is the case, the presumption may be rebutted by countervailing proof.</p> <p>2. After the dissolution of a partnership by agreement, the partner who is authorised to settle the estate, may borrow money on the credit of the firm, for the purpose of paying the debts of the 'firm; and if the credit is given in good faith, though with a knowledge of the dissolution, and the money is faithfully applied to the liquidation of the joint debts, the creditor has a claim against the firm, and is not to be considered as a creditor merely of the partner borrowing.</p> <p>3. A. and B., partners, dissolved the partnership, B. remaining to settle the business, and shortly afterwards A, & B. made an assignment of the partnership effects to C. and D. The assignment contained a preference to C. for a certain sum, “ being the amount of accommodation notes or paper and liabilities or responsibilities, and of borrowed money for and on account of the late firm.” It appeared that the firm was indebted to C. on three notes, which fell due after the dissolution and before the assignment, and for which new notes were given by C., who received the notes of B. for the same amount; The original notes remained in the hands of C. Between the time of the dissolution and assignment, B. borrowed money of C. for the purpose of paying'other debts of the firm, and the money was so applied. Held, that C. was entitled to retain the amount for which he was preferred in the assignment, and which included the three notes and borrowed money.</p> <p>4. Where assignees for the benefit of creditors sold some of the goods at private sale, and delivered them to the purchaser, who failed to pay, it was held, that they were chargeable with the amount; it appearing that the credit of the vendee was doubtful,' and that the assignors had refused to trust him before the assignment.</p>

<p>In trespass against a constable and others for taking a horse alleged to belong to the plaintiff, by virtue of an execution against A. the plaintiff’s brother, it appeared in evidence that the horse had belonged to A., who testified that he had sold him to the plaintiff before the execution, for a full price.^ Another witness produced by the plaintiff testified that the plaintiff and A. lived together, and that after .the sale the plaintiff kept the horse in the same stable in which A. had kept him. There was no evidence of any actual change of possession. Held, that it was error for the Court under these circumstances to leave it to the jury to say from the evidence whether or not the possession was changed.</p>

<p>IN ERROR.</p> <p>Error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by George Boshart against Martha Evans, to. recover one undivided ninth part of a certain messuage or tenement .and lot or piece of ground, situate on the west side of Third street, between Vine and Sassafras streets,'in the city of Philadelphia.</p> <p>On the trial, before Pettit, (Pres’t) on the 15th of May, 1838, the plaintiff proved that one Andrew Boshart died seized of the premises, having made a will, dated the 23d of October, 1793, containing the following provisions :</p> <p>“ First. I will that all my just debts and funeral expenses shall be duly paid and satisfied, as soon as conveniently can be after my decease. Item. I will and direct that my beloved wife Christina Catharine shall have the use, interest and income of my messuage and lot on the west side of Third street, where I now dwell, and of all other my estate whatsoever, during the term of her natural life. And immediately after the decease of my said wife, my said mes-suage and lot of ground on Third street, with the appurtenances, shall be valued or appraised by three or more creditable and judicious men; and if my son Andrew Boshart shall chuse to take the said messuage and lot at such valuation or appraisement, then I do give and devise the same messuage and lot with the appurtenances unto him my said son Andrew, his heirs and assigns forever; he and they paying to my son Jacob Boshart, or his legal representatives, one full equal third-part, and to my daughter Barbara Geyer, or her legal representatives, one like full equal third-part of the sum and moneys at which the said messuage and lot shall be valued or appraised as aforesaid. And if my said son Andrew shall refuse or decline to take the said messuage and lot at such valuation, then I do give and devise the said messuage and lot unto her my said daughter Barbara Geyer, her heirs and assigns forever, she paying to my said son Andrew, or his legal representatives, his equal one-third part of the valuation aforesaid. But if both my said son Andrew and my said daughter Barbara decline to take the premises at such valuation, then I do direct, authorise and empower my executors hereinafter named, and the survivor of them, to bargain and sell my said messuage and lot for the best price that can be gotten, and by proper deed and assurance in the law to grant and convey the same to the purchaser or purchasers thereof, his, her, or their assigns forever. And all the moneys arising from such sale I do give, devise and bequeath unto my said three children, Andrew, Barbara and Jacob, to be equally divided between them, or their legal representatives, part and share alike, as tenants in common..</p> <p>Item. After the decease of my said wife, I do give and bequeath out of my personal estate unto my said son Andrew, the sum of twenty pounds; unto my step-daughter Catharine Cooper the sum of twenty pounds, to be paid her by instalments in three annual payments; and- unto my step-son Matthias Gensel, an ánnuity of three pounds per annum during his natural life, from the day of my said wife’s decease; and all the rest, residue, and remainder of my estate, I do give, devise and bequeath unto my said three children, Andrew, Barbara and Jacob, their respective heirs, executors and administrators, to be equally divided between them part and share alike as tenants in common; Provided always, that what I have herein given and bequeathed to my said wife is in lieu and full satisfaction of all her dower or thirds in my estate, and not otherwise.</p> <p>Item. I do nominate and appoint my said wife Christina Catha-rine, executrix, and my said son Andrew Boshart, and my son-in-law, Andrew Geyer, executors of this my last will and testament.”.</p> <p>The following codicil was then given in evidence.</p> <p>“It having pleased the Almighty, since the date of the foregoing will, to call out of this life my son Andrew, I do therefore make this codicil and will and devise all the legacies and estate intended for my said son unto his three children Catharine, George and John Boshart, and to their respective heirs and assigns in equal parts as tenants in common. And if either of my other two, children depart this life before me, the lawful issue, if any, of such decedent shall in like manner take and inherit the part and share of my estate intended for .his, her, or their deceased parent. Lastly I do appoint Frederick Beates, instead of my son Andrew, executor of this my will. Witness my hand and'seal this 26th day of October, 1793.”</p> <p>The will and codicil were proved on the 8th of February, 1796.</p> <p>The following valuation of the premises was then given in evidence.</p> <p>“We, the subscribers, appointed to value the house in Third street, in which Mr. Andrew Geyer now lives, have agreed that the value thereof is one thousand pounds.</p> <p>George Forepaugh,</p> <p>Godfrey Haga,</p> <p>rirnmpp (<p Aiiirn</p> <p>Philadelphia, 10th March, 1797.”</p> <p>A power of attorney from George Boshart to his sister Catharine Boshart, dated the 18th of October, 1813, and an indenture of bargain and sale, dated the 3d of November, 1813, between Catha-rine Boshart and George Boshárt, by his attorney, Catharine Boshart of the first part, and Barbara Geyer, Andrew Geyer and others, the children and issue of Andrew Geyer, whereby, in consideration of two hundred and twenty-four pounds, the parties of the first part conveyed to the parties of the second part all their shares, right, title and interest in the premises, were then given in evidence; together with the account of Andrew Geyer, as guardian of Grace Boshart.</p> <p>Parol evidence was then given on the part of the plaintiff, to show the situation of the family, and that the premises were worth considerably more than the valuation ; and on the part of the defendant to show the respectability and competency of the persons who made the appraisement; and other matters; all which are sufficiently stated in the charge of the Court.</p> <p>The learned judge charged the jury in s&bstance as follows:</p> <p>“This is an action of ejectment, brought by George Boshart against Martha Evans, the tenant of Barbara Geyer and others her children, who are the real defendants in this cause.</p> <p>The plaintiff claims, under the will of his grandfather, Andrew -Boshart, the right to the possession of one ninth-part of a house and lot in third near* Vine street in this city.</p> <p>The grandfather, Andrew Boshart, died on the 4th of February, 1796, having for many years owned the property in question.</p> <p>He left a will dated the 22d of October 1793, with a codicil dated the 26th of October, 1793.</p> <p>His wife had died on the 31st of October, 1793, and the executors named in his will and codicil, who survived him, were his son-in-law Andrew Geyer and F. Beates.</p> <p>The will and codicil were proved on the 8th of February, 1796, and letters testamentary granted to Andrew Geyer, as sole acting executor, Mr. Beates declining to act.</p> <p>When Andrew Boshart, Sen., made his will on the 22d of October, 1793, he had three children, Andrew Boshart, Catharine Geyer and Jacob Boshart. , .</p> <p>■When the codicil was made, four days afterwards, his son Andrew.had departed this life, leaving three minor children, Catha-rine, George (the present plaintiff) and John, aged respectively nine, seven and five years.</p> <p>Before Andrew Boshart, Sen. died, Andrew Geyer,- his son-in-law, was the guardian of the children of Andrew Boshart, Jun.; and the children lived with their guardian. So far there is no dispute about facts, they being either.proved or conceded. This was the state of the family at and before the time of the death of A. Boshart, Sen.</p> <p>Then what were the contents of the will and codicil 1 (The judge-here read both the'willand codicil.)</p> <p>Two questions are presented here—</p> <p>1st. Supposing a valuation duly made — had Barbara Geyer a right to elect to take the house in Third street at the valuation ; she paying Andrew Boshart’s three children one-third part, and her brother Jacob one-third part of the value ?</p> <p>2d. In whom was the power of appointing appraisers 1</p> <p>As to the first question — there are three prominent objects of the will showing the intention of Andrew Boshart, Sen.</p> <p>1. Equality among his children, or in case of the death of either, a substitution of his or her children for the deceased party.</p> <p>2. That the'property should remain in the family, if his son Andrew, or Barbara, desired to have it, at a fair appraisement. Jacob, it is in evidence, lived in Kentucky, and that may possibly account for his not having a choice.</p> <p>3. If not taken by either at the valuation, then a sale at once, and a division of the proceeds.</p> <p>Now what construction of the will and codicil will carry into effect the general intent thus manifested? Three constructions may be suggested:</p> <p>1, That every thing about value and sale is to be rejected.</p> <p>This carmot be sustained with any show even of plausibility; If such was the design it would have been easy to say so in the codicil, and thus let the fee in the house pass directly under the will to Barbara, Jacob and the three children of Andrew; and it would defeat the design of letting the property remain in the family.</p> <p>2. That the valuation and appraisement be postponed till the youngest child should reach the full age of twenty-one years. This would clearly defeat the equality, for it would postpone Jacob’s interest till that period, and would tie. up the property for many years; an object plainly opposed to his views, which were an immediate vesting of title in one who could sell, or an actual sale by the executors.</p> <p>The third construction is, that there should be a valuation, and that Barbara should have the.election at once.</p> <p>Andrew was not alive either to refuse or decline. His children were incompetent to choose from infancy, and their guardian had no power to decide for them. And as Jacob’s residence in' another state, or something else in regard to him, and it is not material what it was, was deemed a sufficient reason why he should not have a choice, but was to have the benefit of the principle of equality of interest, through the means of a valuation, “ by three creditable and judicious men,” or by an early sale by the executors; so, the infancy of Andrew Boshart, Junr.’s children, and their consequent inability to choose, might have been anfl was considered á sufficient reason for letting them have the benefit of the principle of equality, by means of such a valuation, or by an early sale by the executors.</p> <p>The testator clearly thought a fair distribution could be made by either of these modes. The right of election to take the house at a valuation, was not designed to give any advantage in amount of property. It seems to have been intended to gratify, as far as the facts would permit, without prejudice to any one, an innocent feeling of family pride, in the retention among them of the homestead of the testator. This view renders it unnecessary to resort to the suggestion that the children being incompetent to take may be deemed to have refused or declined, a suggestion, I think, without force, as refusal or declination implies the power of choice. Inability to choose, however, leaves the way clear for the operation of the other modes of effecting the general object of the testator, which were equality of interest and an early sale, or the immediate vesting of a full power to sell.</p> <p>I am clearly of opinion then, that the true construction of the will and codicil authorised a valuation “ by three creditable and judicious men,” and an election by Barbara to take the house at the valuation. There is every motive for this, looking to the true interest of the children. And this I say, notwithstanding the confidence of the plaintiff’s counsel.</p> <p>Then the question is presented, who was to appoint the appraisers'! The language of the will is “ my said messuage and lot of ground on Third street, with the appurtenances, shall be valued or appraised by three or more creditable and judicious men.” Now in, the absence of any express direction as to the mode of appointment and of any express legal provision as to the power of any Court on the subject, it becomes the duty of the executor to carry out the intention of the testator. He is the designated agent; no precise form of words being necessary. “ When by will an estate is to be sold without declaring by whom, if the fund be distributable by the executor, he will have power to sell by implication.” Sugden on Powers, 72.</p> <p>Here the direction 'is that three creditable and judicious men should do a certain act. The ekecutor was to execute the will and it became his duty, and it was within the scope of his authority, to designate three creditable and judicious men to do that act and make the valuation. The testator had the power and right to give this power to- his executor, and he did give it. His confidence was in the executor. His son Jacob was to be bound by the valuation so made. His grandchildren, A. B. j-unr’s. children, were to be bound by it. .No one could complain of this. The testator had sufficient confidence in his son-in-law, A. Geyer, to trust him with this power, and we are not to question his wisdom. He presumed he would exercise the authority fairly for the children of A. B. jun.; and it was his pleasure that they should be bound by the exercise of this power. Nor is it enough to defeat it, that the executor’s wife was to-elect under the valuation: the interposition of the judgment of three creditable and judicious men, was deemed sufficient in the view of the testator, who perfectly knew the state of the family. If Mr. Geyer then, the executor, selected three men whom he believed to be creditable and judicious men, the power of appointment was legally executed. Even his judgment, honestly exercised, as to the credit and judgment of the appraisers was to be conclusive ; though this point is not material. It is not to be overlooked that a much higher power than that of appointing appraisers, namely, the power to sell in a certain contingency, was expressly given to the executors. The power of appointment thus exercised without fraud, would conclude all the world, in all future time; and this merely because the testator having confidence in the executor and having power so to order it, did so order it. This being the law of the case, these questions of fact are presen ted — was the appointment made by theexe-cutor, and was the valuation made by the persons selected! The defendants say both were done, and rely much (inter alia) upon the small paper given in evidence by the plaintiffs themselves ; and the jury are to decide. The defendant's say it is clear in point of fact, that .“George Forepaugh, Godfrey Haga, and Peter Craft,” were appointed by the executors to make the valuation. And they say it is clear that these gentlemén valued the house and lot at one thousand pounds, and so the case was argued' on both sides. The facts here are for the jury. If not named by the executor, it does not appear who did name them, and no one else had the power to name them. The certificate is addressed to the executor, and it is not disputed that the executor recognised their action as appraisers. It was .so opened by the plaintiff’s counsel. The appraisement, if made, is conclusive without evidence of fraud. As to the identity of the house, it is not seriously disputed,, but this isTor the jury. But if the question were open, what better light have we now as to the value in 1796-7, than those men had at that time I Who were they, and what is the testimony as to the value? (The Judge here referred to some of the evidence.) If then the valuation was duly made, and Barbara had the right to elect, the question comes up, Did she elect ? She and her husband took possession of the house and lived in it, and after the valuation kept possession. If there was no election, then the executor ought to have sold. His not selling and keeping possession, might be considered as binding him and her to an election. If the property had decreased in value, and probably it would have been so considered, it may be arguéd, why not then let them be deemed evidence of election in their favour. No written election was necessary, though it would have been prudent, and would have saved much trouble. But if it appears to the jury.in any other satisfactory way, it is enough. And in that case the title vested in Barbara under the will of her father, she paying the two-thirds of the valuation to the children of her brother Andrew, and to Jacob her brother. How was she to pay ? Her husband was guardian of those children, and there is ho claim on the part of Jacob. . Indeed, I rejected as immaterial, tilj such claim appeared, the offer by the defendants, of a deed by Jacob in 1797. Her husband as a guardian, would in this case be obliged to account for one-third. It is said he did'so account through his administrator, when the children became of'age. In the account exhibited, the children, it is alleged by the defendants, have credit for the third part of the valuation of £1000 from the year 1797. The balance, paid over in Í813, it is contended by the defendant, was the result of that payment. It is said the charges against the children are too great: this is denied by the defendants, considering the infancy and the care and superintendence.</p> <p>But' if Barbara took at the valuation, her husband and her estate became responsible, and if there was objection to the guardianship account, it could have been settled in the Orphans’ Court, a more convenient tribunal than this one for such a settlement. With what favour or disfavour George would have been heard in that Court, after receiving from his sister the money, after waiting till 1828, when this suit was brought, fourteen years after the settlement in 1813, and seven years after his return from abroad, which was in 1821, it is not necessary to inquire. If the jury adopt this view of the facts, namely, that there was an appointment by the' executor of the appraisers, a valuation accordingly under it, and an election by Barbara, then I am clearly of opinion that in point of law the present plaintiff has no title to sustain •this suit which is an ejectment. Any complaint as to the settlement of his guardianship account, if on this view of the law there is ground for it, cannot be investigated legally in this suit.</p> <p>The defendants say, however, that they do not rest upon what was done by the executor as to the appointment of the appraisers, and by the. appraisers as to valuation, and by Barbara Geyer as to an election. They say the present plaintiff agreed to and confirmed every thing, when he became of age, by his letter approving of his sister acting or officiating for him in 1813; by the power of attorney to her to convey to his aunt and cousins, in 1813; by his receipt of the.money from his sister, long after; and by his silence for 'fourteen years before the suit was brought, and for six years after he came home from public service abroad. He was twenty-three -years of age in 1813, and prima facie had power to contract and to settle with his cousins. The plaintiff says he was recently of age, that the property and all knowledge in regard to it was in possession of the other side; that a settlement with his guardian for less than what was due would not bind, him; and that the administrators of his guardian having charge of the property and papers, are in no better a situation than the guardian himself. If in 1813 the property was worth more than £1000, and the guardian or his administrator, without giving an opportunity to the ward to understand the subject, obtained a deed of the property at less than its value, it would not bind the ward, if he within a reasonable time made objection; and this is true, though no actual fraud or circumvention was proved. If, however, the valuation was made fully and properly in 1797, and an election took place under it by Barbara, then the circumstance of the release or deed of confirmation, or deed of conveyance of 1813 by George, assumes a different aspect altogether: as without it George had no title, so it could give him no advantage. If done from aft abundance of caution, if to close up a presumed obscurity in the will, and make doubly sure a title which was strictly good without it, then the notion of imposition vanishes; the idea of legal fraud has no foundation, and the transaction may be allowed to stand: this, it appears, probably led to this controversy; it ought to be allowed to do no further harm, if it can do no good. If not so done, then the jury would have to determine, and so the plaintiff has argued, whether George had a fair settlement in 1813, or. not. As to the ■ time of objection, if the case rested on the settlement with George in 1813, independent of the previous valuation’and election, and the jury deemed the- price inadequate, and George within a reasonable time objected; the jury might, under all the circumstances, disregard the settlement, and the executors of A. B. senr., not having sold the property, a verdict might be given for the plaintiff here. Whether George made his objection within a reasonable time, would be for the jury. .He was abroad for some years, or only occasionally here-; he came home in 1821, a man of thirty years of age, and waited six years before he brought suit. He received the money from his sister, and never offered to return it. In 1835 he made oath in the Insolvents’ Court, that he had no real estate; and hence the argument now is, that he waited more than a reasonable time before bringing suit, and since suit, has virtually admitted that he has no claim. The plaintiff contends that it was not too late when he brought suit, that he never acquiesced before or since suit brought; and on the argument on both sides, the, jury will have to determine. If, however, there was by three creditable and judicious men, duly appointed, a valuation, and there was an election by Barbara, then the case is different and the plaintiff cannot recover; and this concludes nothing as to the guardianship account. If there was no such valuation, and no such election, the jury will decide upon the transactions of 1813, and subsequent years, upon the principles stated.”</p> <p>A bill of exceptions was taken to this charge ; and the jury having found for the defendants, a writ of error was taken, and the following specifications filed.</p> <p>“ 1. The judge charged that Andrew Geyer was entitled to appoint the appraisers.</p> <p>2. The judge charged that Barbara Geyer had the first election to take the house at the valuation.</p> <p>3. The judge charged that if Andrew Geyer appointed three men whom he believed to be creditable and judicious men,, the power of appraisement was legally executed, and he put it to the jury to find for the defendant, if the appointment was made by the executor, the valuation by the person by him selected, and the election by Barbara Geyer.</p> <p>4. The power of appointment and the election were not duly executed, and did not, without a conveyance in writing beside, transfer the title.</p> <p>5. The judge charged that the jury might find for the defendant, without regard to what happened in 1813.</p> <p>6. The judge charged upon the subject of the payment of the consideration of the alleged conveyance by the plaintiff, as if it were a mere question of jurisdiction of the guardianship accounts between the Orphans’ Court and the District Court, or a mere question of the fact of payment; when he should have charged upon it as an item in the question of fraud and imposition practised upon the plaintiff.”</p> <p>cited Williams on Executors, 413. 4 Madd. Ch. Rep. 44. Patton v. Randall, (1 Jac. & Walk. 189.195.) Rugan v. Phillips, (4 Yeates, 382.) Murray v. Garretson, (4 Serg. & Rawle, 130.) Thomson v. Dougherty, (12 Serg. & Rawle, 460.) Bauer v. Roth, (4 Rawle, 96.)</p> <p>cited Allison v. Wilson, (13 Serg. Rawle, 330.) Morrow v. Brenizer, (2 Rawle, 187.) Sugden on Poioers, 175. Combes’s Case, (9 Rep. 75, 6.) Ingram v. Ingram, (2 .Me. 88.) CoZe v. ZFacZe, (16 Ves. 27.) Davoue v. Fanning, (2 Johns. Ch. Rep. 252.) Zehach v'. Smith, (3 Binn. 69.) Ragan’s Estate, (7 PFaZZs, 442.) Walton v. ZPiZZis, (1 NaZZ. 351.) Her sha v. Brenneman, (6 Serg. & Rawle, 2.) Allen v. Getz,.[2 Penn. Rep. 310.) ■ Macintosh v. Barber, (1 Bingh. 50; 8 Eng. Com. Law Rep. 242.) Leisenring v. Black, (5 Watts, 304.) Willis on Trustees, 163.</p>

<p>Where an instrument in the form of a promissory note for the payment of a certain sum of money to A. or bearer, is signed by three persons, and a seal affixed at the signature of one of themia joint action cannot be maintained against the three; and if the seal be affixed aftermirds, and in the absence of the other two, the instrument is rendered void as to the latter.</p>

<p>A mother, who was administrator of her deceased son, allowed in the settlement tíf the estate, for the support and maintenanpe of the son, for a period of^sixteen years, under the circumstances of the case»</p>

<p>In an action by the endorsee of a note against the maker, the endorser is a competent witness, on being released by the defendant, to prove an agreement between the plaintiff and himself, after the note had come into the plaintiff’s hands, whereby the plaintiff agreed that he would not sue or trouble the defendant, whom he knew to be merely an accommodation party, if the endorser would give him (the plaintiff) a judgment bond for the amount of the note and other money, due by the endorser to him, and to prove that the bond was accordingly given by him (the witness) and accepted by the plaintiff.</p>

<p>This was an appeal from a decree of the Orphans’ Court of Chester County, in the matter of the settlement of the accounts of Elizabeth Irwin and Jonathan Worrell, administrators of the goods, &o., of Aaron Irwin, deceased, who was administrator of the goods, &c., of John Irwin, deceased.</p> <p>The accounts of the administrators were settled on the 4th of February, 1839; by which they charged themselves with the sum of seventy-three dollars and twenty-five cents, being money with which the intestate charged himself in his lifetime, as the proceeds arising from the sale of cattle, which were of the estate of John Irwin, deceased. The administrators then claimed allowance -for sundry small items, and admitted a balance in their hands of fifty-two dollars and eighty-seven cents.</p> <p>The following exceptions were filed to this account by William Irwin, surviving administrator of John Irwin, deceased, viz.</p> <p>“ 1. The accountant is not charged with the sum of two thousand two hundred dollars, due by him to the said John Irwin, deceased.</p> <p>2. The accountant is not charged with the sum of one hundred dollars received by him as' administrator of the said John Irwin,, deceased.”</p> <p>On the 12th of March, 1839, the Orphans’ Court appointed auditors of these accounts, who made a report, in which they charged the accountants with the two sums mentioned in the exceptions, and giving them credit for certain payments and commissions, stated a balance to be due the estate of two thousand one hundred and eighty-two dollars and eighty-seven cents.</p> <p>This report was confirmed nisi on the 10th of June, 1839. No exceptions were filed in the Orphans’ Court;- but on the 24th of January, 1840, an appeal was taken by the administrators to this Court, and exceptions filed here.</p> <p>A motion having been made to strike off the exceptions—</p> <p>cited Hise’s Estate, (5 Watts, 157.) Mylin’s Estate, (7 Watts, 64.)</p>

<p>IN ERROR.</p> <p>Error to the Common Pleas of Bucks,</p> <p>In the Court below, Jacob Weyerbach brought an action against Henry Weyerbach, in which the following case was stated for the opinion of the Court.</p> <p>“ Isaac Weyerbach, by his last will and testament, dated the 20th of February, 1805, did devise and bequeath as follows, viz.</p> <p>‘ Firstly. I give and bequeath unto my beloved wife Anna, all such of my household goods and kitchen furniture as she may want or have occasion for, for her own use forevei'.</p> <p>Item. I give, devise and bequeath unto my son Henry Weyerbach, all my lands and plantation situate in Springfield township aforesaid, hereditaments and appurtenances thereunto belonging, to hold to him my said son Henry Weyerbach, and to his heirs and assigns forever, subject to the payment and privileges hereinafter set forth.</p> <p>Item. I give and bequeath unto my son Henry, two of my horses, the same that he now calls his own.</p> <p>Item. I give and bequeath unto my son Peter, two horses, the same which he now calls his own.</p> <p>Item. I give and bequeath unto my two sons the said Henry and Peter, all my gears, ploughs, harrows, wagons, and all my farming utensils, to be equally divided between them share and share alike, according to an appraisement to be made of them after my decease.</p> <p>Item. I will and order that all my stock of cattle, horses, and all my household goods and furniture not herein-before bequeathed, (except one cow to my dear wile Anna, which I bequeath to her for her own use forever,) shall be sold, and the money arising from said sale, after all the expenses of the administration and all debts are paid, shall be equally divided between all my six children, share and share alike, except two beds which I give to my two sons Henry and Peter, to each of them one bed.</p> <p>Item. I give and bequeath unto my son Jacob Weyerbach, the sum of two hundred pounds, besides what I have already advanced to him.</p> <p>Item. I give and bequeath unto my son Isaac Wej’erbach, the sum of eighty-six pounds ten shillings, besides what I have already advanced to him.</p> <p>Item. I give and bequeath unto my daughter Elizabeth Smell, wife of Michael Smell, the sum of two hundred and forty-three pounds two shillings and three pence, besides what I have already advanced to her.</p> <p>Item. I give and bequeath unto my daughter Margaret Heipst, wife of Henry Heipst, the sum of two hundred and forty-three pounds, besides what I have already advanced to her.</p> <p>Item. I give and bequeath unto my son Peter Weyerbach, the sum of five hundred pounds, besides what I have already advanced to him.</p> <p>Item. I will and order that my said son Henry do pay all the foregoing legacies to his brothers and sisters in consequence of his having my whole real estate, in the following manner: the legacy to my son Peter, he shall pay at the expiration of one year next after mv decease; and the sum of seventy-five pounds a year to my daughter Margaret Heipst, and so in proportion till her legacy is paid; the first payment to be in two years after my decease : and in one year next after the time expires for the last payment of Margaret Heipst’s legacy, the sum of seventy-five pounds a year to my son Jacob Weyerbaeh, and so in proportion till his whole legacy is paid; and in one year next after the time expires for the last payment to my son Jacob, the sum of eighty pounds ten shillings to my sun Isaac Weyerbaeh; and in one year next after the time of payment to my said son Isaac, the sum of seventy-five pounds a year to the children of my daughter Elizabeth Smell till the whdle of the legacy which I bequeathed her is paid to her said children; and the legacy which I herein-before bequeathed to my son Jacob I will and order shall be paid to my son Jacob’s children, agreeably to the above payments.</p> <p>And I will and order that my dear wife Anna shall have the back room in the new end of my house; for her own use; and to have the privilege of all and every part of my buildings that she may want; and to have her cow well kept summer and winter by my said son Henry; and he is likewise to find and provide for his said mother as much wood cut and split at her door suitable for her own use as she may have occasion for; and to give her her choice of his hogs when they are fit to kill; she to take one of them; and fifty pounds of good beef, and three bushels of wheat, and nine bushels of rye, and as much buckwheat and Indian corn meal as she may want; and the privilege of taking as many apples yearly and every year as long as she lives; and I give and bequeath to her all my bees and the interest of two hundred pounds. a year during her natural life: which said two hundred pounds is to be and remain on my real estate during her life, and the interest to be paid to her by my said son Henry. And as there will remain' the sum of twenty seven pounds, seven shillings and nine pence of the value which my said son was to pay out of the lands' after paying the above legacies, I will and order shall go with the residue and remainder of my estate not herein devised, to be equally divided between my sons and daughters, share and share alike after the decease of my said wife.’</p> <p>The widow died in 1838.</p> <p>The question for the opinion of the Court is, whether the defendant Henry Weyerbaeh is liable to pay the principal sum of two hundred pounds, (the interest of which was payable to his mother during life,) at the decease of his mother to the sons and daughters of the testator mentioned in said will. If the Court shall be of opinion that he is so liable, then judgment to be entered for the plaintiff; but if not liable as aforesaid, then judgment for the defendant. The case to be in the nature of a special verdict and subject to a writ of error. The inventory of the testator’s estate to be considered in evidence in the above case.”</p> <p>The inventory Contained (besides the stock of cattle, horses, household goods and furniture,) bonds and notes to the amount of about three hundred pounds.</p> <p>The following is a statement of the legacies payable out of the land.</p> <p>o o o o I S'</p> <p>o o O GO if</p> <p>» w CO ^</p> <p>© o CO ^ W o l-rt f-U C5</p> <p>o o o o lO CD CD ^ ? CD</p> <p>£1272 12 3</p> <p>Balance mentioned in will after paying above legacies - - - . * 27 7 9</p> <p>£1300 0 0</p> <p>The Court of Common Pleas gave judgment for the plaintiff in this case: whereupon the defendant took this writ of error.</p> <p>cited Delamater’s Estate, (1 Wharton’s Rep. 375.) Jackson v. Robinson, (1 Yeates, 102.) I 'Wharton’s Dig. 771. Willes Rep. 225.</p>

<p>IN ERROR.</p> <p>ERROR to the District Court for the City and County of Philadelphia,, to remove the record of an action on the case, brought by Moses Depui against Joseph Dyer.</p> <p>The plaintiff declared, that whereas he “ the said Moses, before and at the time of the committing of the grievances hereinafter mentioned was, and from thence hitherto hath been and still is lawfully possessed of a certain farm and tract of land situate in the township of Moreland, in the county of Philadelphia, containing forty-two acres and sixty-one perches, with the appurtenances; and by reason thereof, before and at the time of committing the grievances hereinafter mentioned, of right ought to have and enjoy the benefit and advantage of the water of a certain stream or watercourse in the county aforesaid, which during all that time of right ought to have run and flowed, and until the diverting thereof hereinafter mentioned, of right had run and flowed and still of right ought to run and flow upon and over the land of the said Moses, for supplying the same with water. Yet the said Joseph Dyer, well knowing the premises, but contrary and wrongfully and unjustly intending to injure the said Moses in this respect, and to deprive him of the use, benefit 'and advantage of the water of the said stream, and put him the said Moses to great expense, trouble and inconvenience, on the first day of January, in the year one thousand eight hundred and thirty-four, at the county aforesaid, and on divers other days and times between that day and the bringing this suit, wrongfully and unjustly diverted and turned divers large quantities of the water of the said last mentioned stream- or water-course out of the same and away from the said farm and tract of land of the said Moses, and hindered and prevented the'water of the last mentioned stream or water-course from running or flowing along its usual course upon and over the farm and land of the said Moses, and from supplying the same with water for the purposes of the said farm, as the same ought to have done, and otherwise would have done; and by reason thereof the water of the said last mentioned stream, nor did run or flow to and upon and over the said farm of the said Moses, as the same ought to have done and otherwise would have done ; and the said Moses for want of such water could not carry on his business of farming in so beneficial a manner as he ought to have done, and otherwise would have done, to the damage of the said Moses, five thousand dollars,” &c.</p> <p>The defendant pleaded not guilty, with leave; and the cause came on for trial before Jones, J., on the 29th of January, 1838.</p> <p>The facts of the case are believed to be sufficiently stated in the charge of the learned judge, which was in substance as follows :</p> <p>It appears that many years ago, (some forty years,) the land now held by the plaintiff and defendant in this case, as well as that now owned by Mr. John Chappell, belonged to James Dyer, deceased. While he owned it a dam was erected across the little stream so often spoken of and described by the witnesses, by which the water •was diverted from its natural course along sloping land, for the purposes of irrigation. At the decease of James Dyer-, the estate descended to Joseph Dyer, Sen., the father of the defendant. Joseph Dyer, Sen. sold a part of the land to the plaintiff in this case, which has been described to you from the deeds and drafts exhibited. The date of the deed is February 22d, 1818. In this deed, under which the plaintiff claims the water right which he complains has been infringed, is the following clause: -</p> <p>“ Together with the privilege of a part of the water flowing along a certain ditch or water-course, from John Hogeland’s line through and across the said Joseph Dyer’s other land, on condition that the said Moses Depth, his heirs and assigns, will at all times be subject to and defray one-half the expenses of keeping or repairing the dam and clearing out the said ditch or water-course.” “ To have and to hold the said tract or -parcel of land above described, with privilege of part of the water as aforesaid.”</p> <p>The defendant is the owner of the land upon which the dam was built by James- Dyer, and on which the first part of the race is. He claims title under Joseph Dyer, Sen., by devise. The will of Joseph Dyer, Sen., is dated the 9th of January,'1813. It appears to have been proved February 7th, 1815. The right of the plaintiff, therefore,' (whatever it may be) is prior to the right of the defendant. It was a right which he might claim adversely to Joseph Dyer, Sen., from the time of the grant by him to the plaintiff. The original dam was however afterwards taken down, and another dam was erected at or near the place where the first dam stood,'by Samuel Dyer, who likewise became owner of a part of this estate of Joseph Dyer, Sen., by will, and S. Dyer’s is that now owned by Mr. John Chap-pell ; it lies between the lands of the plaintiff and the defendant. Some of the witnesses say that one end of the dam built by Samuel Dyer was on the old foundation, but the other end a little further up the stream. Other witnesses speak of it (in general terms) as being higher up. This dam was suffered to fall down, and was not used; the ditch or race connected with it was in part filled up, or effaced by ploughing over it; and about four years ago, last fall, Mr. Depui, the plaintiff, built another dam on or near the same place, which was taken down by some persons unknown. ■ The plaintiff then rebuilt it again, and it was then taken down by the defendant. At the time of erecting the dam, the plaintiff cleared out the old ditch or race as far as it could be traced on the ground, and where it could not .be, he dug a new one, which he extended through Mr. Chappell’s land, and over his own land to his bam. None of the witnesses say that the ditch was ever dug so far before ; some say it terminated formerly in'John Chappell’s land, several yards short of the dividing line between Chappell and Depui. Some of the witnesses (John Holt and James Depui) say, that some twenty-five or twenty-six years ago the ditch extended to Depni’s fence. This dam, it is conceded, the defendant removed, and thereby restored'the water to the natural channel of the creek ; and this is the wrong complained of. The defendant, on the other hand,- contends, that he had the right to demolish the dam, because it was a nuisance to him. It appears that Mr. Dyer, the defendant, ownpd a piece of valuable land on the opposite side of the road from Mr. Depui’s. This land, according to some if not all of the witnesses, was very much injured by .the water which descended from Depui’s and Chappell’s land; and this is the chief if not the only injury specified as resulting from the race and dam, as put in order by Mr. Depui. This land (so injured) it is also said, was formerly a- swamp; and John Holt, speaking -of it as it was, some twenty-five 'or thirty years since, says that the water-then ran down and crossed the road and ran over it. But whatever was the condition of the lot then, the witnesses say that now it is tillable, fertile land, yielding good crops, and that the water which passed over it during the continuance of Depui’s dam and race was an injury to it. The question for us to determine is, whether Mr. Depui exercised merely his rights under the deed by erecting the dam' and making the race; for if he did no more than he had -a right to do, the loss which Mr. Dyer sustained in consequence of the dam would not make the dam a nuisance which he might abate or remove. We must therefore settle this matter in the first place. The grant is.“a privilege of part of the water flowing along a certain ditch or water-course, from John Hogeland’s line through and across the said Joseph Dyer’s other land.” This grant is not so explicit as grants of this nature are sometimes drawn ; but in all such cases the object is to ascertain what the intention of the parties was; and it belongs to the Court to give the construction. It is proper to say in this place, (with reference to a part of the arguments of the counsel,) that Joseph Dyer, Sen., had the power to convey a privilege or right to use the water in the.fullest extent that*the nature of the thing would admit, upon his own land, whatever might be the effect upon himself. It is perfectly true that he could not grant a right which would infringe the rights of other adjoiners upon the stream; and if any stranger were to be injured by the exercise of the right which the deed purports to grant, the deed would not protect Mr. Depui. But as it respected Joseph Dyer, Sen., and those who claim under his will, the grant in the deed to the privilege of the water is lawful. The defendant therefore cannot justify his act in abating this dam as a nuisance,, because it might be a nuisance to other.persons owning land on this creek. The issue to be tried involves only the rights of these particular parties. If the defendant was not injured in his rights by the dam and race 'of Depui, he cannot complain that other persons were. What, then, (to return to the question) did this deed grant 1 for so far it was good as against Joseph Dyer, Sen., the grantor, and for the purposes of this controversy between these parties. The defendant contends. that the grant has respect to the dam as it stood, and the water-coarse as it actually existed at the date of the deed (22d of February, 1813.) He contends, as a matter of fact, that the waler-eourse terminated in the tract now owned by John Chappell, and before it reached Depui’s land. Hence he concludes that the plaintiff had no right to have the water-course extended further -; and that the only right which the plaintiff acquired by the deed, was to enter upon the land'where it terminated and take the water out of the trench there. It is contended that to that place the plaintiff must go for water; that he might drive his cattle there to drink, but that he had no right to conduct the water further-. The intention of the parties .plainly appears to have been to annex this water privilege to the land conveyed by the deed. It gave Mr. Depui the right to have the water on his land for the uses and purposes of the land. The clause contains the words “ through and across” the said Joseph Dyer’s other land. The meaning of these words is,-that the ditch dr water-course actually existing or intended, did extend actually, or was .intended to be extended to the margin of Joseph Dyer’s other land. The defendant’s construction is unreasonable, and it. can hardly be supposed that he would insist upon it if he were the owner of this intermediate tract instead of Mr. John Chappell. It would be more onerous to him to be subjected continually to a right of way and of entry into his own land, for the purposes of watering cattle, and for other farming purposes, which must take place daily, than to be subject to a right to convey the water through by a ditch, and then to be taken and used .by Depui upon his own land. The witnesses differ as to the fact of the extent of the water-course. Some say it extended to the line of the plaintiff’s land, but most of them say it stopped short of the line. The deed itself is evidence of what, the fact was. The'will which has been read states that the race came up to Depui’s line. But the fact is not-important, because if it were not so, the deed gave the plaintiff the right to have* the water-course extended, in the shortest conveniently practicable manner to his own line. ■ There is another clause in the deed which deserves a remark or two, as it throws light upon this, as well as another question discussed. -The phrase is, “ together with the privilege of a part of the water — ‘ a part of the water’ is an indefinite expression. No aliquot part is granted. We cannot say from the deed itself whether the parties intended the half or the third, or any other particular part. But what I wish particularly to say is, that those words would be very inapt to express the grant of a right to water cattle at the end of the water-course, or to dip it out at that place and carry it away, as has been contended. But these words, when considered in reference to the land granted to Depui, and the other land of the grantor, and the purposes served by this water-course on the land of the grantor lying between Depui and the dam, the expression, though indefinite,, is natural, and admits of a reasonable construction. There was no mill on the land belonging to the defendant and John Chappell, nor does it appear that there was any use which the water could serve, but the purposes of irrigation and other farming purposes; and the meaning of the clause is, that Joseph Dyer, Sen. would not use the whole of the water, but allowed a reasonable and fair proportion of it to flow on, to the land of Mr. Depui, the grantee. If there was water enough in the creek which could be diverted-through this water course, to answer fully the purposes of both farms, then both were to be fully served. If the water was deficient, then the grantor could not take the whole to himself, but must leave a fair proportion to Mr. Depui, the grantee. Such is the effect of the deed. Incident to this right, and connected with it, the plaintiff had the right to have the dam and the water-course maintained. If this dam fell or was injured, he had a right to insist that it should be erected or repaired. If the water-course became obstructed on the lands of the grantor, or otherwise got out of order, he might want that it should be put in order, but he was bound to pay half the expense. If the grantor had refused or neglected after notice to do the necessary repairs or half of them, the grantee might lawfully make then?) himself, and the law would give him a right to contribution. But Mr. Depui would have no right to erect a dam in another place, or to dig a watercourse over the grantor’s land in another place. Another question has been made, touching the height of this dam. It is said that the dam erected by the plaintiff was of' greater height than the dam which existed at the date of the grant. This question is not important : cases occur frequently in which the merits of the controversy turn upon the exact height of a dam ; but they are cases where the owner of the land above the dam complains that he is injured, by having the water swelled back upon his land or his mill. In this case however, the stream, as it it appears in evidence, is very small at ordinary times. It appears to be of value, and to have been used only for the benefit of the land ; and it cannot reasonably be supposed 'that the height of the dam entered into the contemplation of the parties, except so far as this, that it should be of such height as should answer the main purpose, viz., of diverting the water from the natural channel through the water-course mentioned in the deed, in sufficient quantity for the reasonable uses of both farms. If it were higher than such necessity required, and in consequence more water was diverted than was needful or useful for the lands, the defendant had the right to reduce the height, so as to prevent injurious excess. These are the points of law raised upon the plaintiff’s part of the case. Briefly stated it is thus:</p> <p>1. The deed gave the plaintiff the right to have the water conducted from the creek at the dam,- to his land, through the watercourse mentioned in the deed, for the reasonable and customary purpose of the land conveyed. •</p> <p>2. The plaintiff has a right under the deed, to insist upon the maintaining and repairing of the dam and race, so as to secure the transmission of a reasonable and fair proportion of the water to his land.</p> <p>3. If the owners of the other land of the grantor, mentioned in the dee'd, neglect or refuse to maintain it, or to do their part towards it, the plaintiff has the right to do it himself; but he has no right to erect a dam at ánpther place, or to dig a watercourse over another part of the intervening land.</p> <p>4. The precise height of the dam is not important. ,If it were greater than the height of the original dam, to the injury of the defendant, even in that case, if the dam was erected on the original foundation, the defendant had the right only to reduce it to the proper height, not entirely to demolish it.</p> <p>I must now call your attention to the defence. It is said in the first place that this right of the plaintiff under the deed has been lost by neglecting to exercise it. A right may be lost in this way; but it certainly cannot be so lost in a shorter period than a right of this nature could be acquired by a reverse occupancy, viz. twenty-one years. . There are two facts pertinent to this point, about which there is no dispute. First, the date of the grant, February 22d, 1813. Second, that on the 3d of December, 1833, the plaintiff erected the dam which the defendant removed nearly a year afterwards. The interval is less’than twenty-one years. Besides, there is evidence that previously, this plaintiff had erected a dam, which was removed by some persons not known. There 'is evidence also to show that a dam was built by Samuel Dyer, which must have been after the death of Jos. Dyer, Semv, which happened •probably not long before the probate of this will, viz. 7th February, 1815. But whether the dam erected by Samuel Dyer, and the race connected with it, transmitted the water to the plaintiff’s land, is a question of fact to be determined by the testimony. The witnesses do not entirely agree, as to the fact, whether the water passed the line of Depui’s land at any time. If you find that at any time the water was conveyed to the plaintiff, either by the old dam, or by Samuel Dyer’s dam and the race, whether the race terminated in Chappell’s land, or extended to the line, and thereby served Mr. Depui' for the purposes of irrigation, it would go to diminish the alleged period of non-user under the deed which was executed, as has been said, less than twenty-one years before December, 3d, 1833. Another point made by the defendant is, that he has acquired a right adversely to the plaintiff, to have the water flow along his land, through the natural channel. If the defendant had erected a mill, or had made any other exclusive use of the water .flowing along the natural channel dui'ing twenty-one years since the date of the plaintiff’s deed, this point might arise.. Or evén if there were evidence, that twenty-one years before Mr. Depui erected the dam, and subsequently to the grant, the defendant had cleared his lot below the road, and drained it, and converted it to purposes of cultivation, it might be necessary to consider this point. But there is no evidence 'when this lot below the road was cleared, nor is the interval between the date of the grant to the plaintiff, and the building of the dam by him, twenty-one years. It is not necessary to consider this question therefore. Another point is made, viz.: that the plaintiff exercised his right in an.unlawful manner, and to the nuisance of the defendant. The nuisance complained of, is the injury done to the lot of defendant below the Horsham road. -Upon this point -I have merely to say, that if the plaintiff did no more than exercise the right granted to him by the deed, in a reasonable and proper manner, for his own benefit, the damage complained of gave the defendant no right to abate the dam as a nuisance to him. I have already stated to you the legal effect of the grant. The plaintiff had the right to conduct the water from the line of his land to his barn, or to distribute it over his farm'according to his own views of his interests, or the customary rules of husbandry, but' he had not a right wantonly to exercise this privilege for the purpose of injuring the defendant. If the evidence proves that what the plaintiff did was necessary, or conducive to his receiving the full and convenient benefit of' the right granted to him, the detriment which the defendant suffered, he was obliged to bear; or to provide against it by the ditches along the road, or across his land, or in such other way as the situation of the place would allow. On the other hand, if the plaintiff,' under pretence of his right, wantonly constructed any thing on his own land not for the convenient and reasonable exercise of the right, to the injury of the defendant’s land, that construction would be a nuisance; but Mr. Dyer’s right in such case, would be to remove-the thing which caused the nuisance, not to remove any other construction which was lawfully made. His right to abate extended only to the thing, or part of the thing, which caused the nuisance, not to the part which was lawful and proper. The law in a few cases gives this right of redress; but in exercising it, a man must be careful not to do more than the law would do for him. In this case, the defendant abated the dam; but if the dam was erected at the right place, and was of such height only, as was necessary to give effect to the intention of the grantor, the defendant had no right to abate it, even if the plaintiff had connected with it some other construction, which was a nuisance. If the dam was higher than needful for this purpose, and •if in consequence of the excess of height, it diverted more water than was necessary, and so much as to be hurtful-to the defendant’s land below the road, the defendant might lawfully have reduced the dam to the necessary height. I will now call your attention to the questions of fact, about which you are to inquire. Dismiss from your consideration, the rights of all other persons owning land on this stream. It will be time enough to .inquire whether such persons are injured when they complain. You will then inquire,-1First, whether- the dam erected by Depui, was in the same place as the original dam? If it was, the defendant cannot complain'on that score. ' Secondly, if the' dam was erected at ,a different place, then inquire whether the place was changed with the consent or assent of the defendant. The defendant says, the three dams were on three different foundations, and that the plaintiff changed the place for his own benefit, and against his (the-defendant’s) will. The plaintiff contends that it was erected on'the old foundation: but if it was not, yet the defendant assented to the change of the planand he.relies on the fact, that he acquiesced in the change of place made by Samuel Dyer, to show that the defendant considered a slight variation of-no importance; and also upon-a declaration of the defendant which he contends he has proved,- that he knew the plaintiff had á right, but not to conduct the water as he did. This fact is for you to determine. If the dam was erected at- a different place, against the defendant’s will, he had the right to take it down. If on the same place, or at a different place, and there, is evidence to satisfy you that the'defendant assented to it, then he had no right to remove it. • If- you find for the plaintiff on these points, then you will.proceed to the defendant’s part of the case, — -the fads of non user and adverse occupancy. ' The plaintiff admits 'that twenty-one years non user or adverse, enjoyment would defeat his right; but he denies the fact of non user during so long a period. The defendant, has requested the Court to charge that the presumption'to'defeat the right, does arise-from non user, during a less period than twenty-one years; but less than twenty.one years is certainly insufficient for this purpose. The defendant has alsp requested the Court to charge, that there is no evidence that the defendant - assented to a change of , the foundation of the dam; but I cannot say that there is no evidence upon this point. If you should find for the -plaintiff, you will also assess such damages as the plaintiff in your judgment may be entitled to, under all the circumstances of the pase.</p> <p>The jury found a verdict for the plaintiff, with three hundred dollars damages, and the defendant’s counsel having excepted to to the charge, took this writ of error, and filed the following exceptions.</p> <p>“ 1. Because-the judge told the jury that the construction given by the defendant below, was unreasonable, inasfiiuch as the defendant below did contend that the-grant had respect to the dam as it stood, and the water-course as it actually existed at the date of the deed, (22d February, 1813.)</p> <p>Because he contended that the water-course terminated in the tract now owned by John Chappell, and before it reached Depui’s land.</p> <p>Because lie contended that the plaintiff had no right to have the water-course extended further; and that the only right which the plaintiff below acquired by deed, was to enter upon the land where it terminated, and take the water out of the trench there.</p> <p>Because he contended that to that place the plaintiff below must go for water — that he might drive his cattle there to drink, but that he had no right to conduct the water further.</p> <p>Because the judge told the jury that the plaintiff below had a right to conduct the water from the line of his land to his barn, or to distribute it over his farm, according to his own views of his interests.</p> <p>2. Because the judge told the jury that the phrase in the deed, “together with the privileges of part of the water,” were very inapt to express the grant of a right to water cattle at the end of the' water-course, or to dip it out at the place and carry it away, as has been contended.</p> <p>3. Because the judge fold the jury, that the question, whether the dam erected by the plaintiff was of greater height than the dam which existed at the date of the grant, was unimportant, and that it could not reasonably be supposed, that the height of the dam entered into the* contemplation of the parties.</p> <p>4. Because the judge told the jury that the right of the plaintiff below could not certainly be lost by non-user in a shorter period than a right of thip nature could be acquired by adverse occupancy, viz., twenty-one years-: whereas, the evidence showed that there had been a non-user by plaintiff below of .twenty years, which was sufficient to bar the right.</p> <p>5; Because he told the jury, that if the evidence prove that what the plaintiff did, was necessary or conducive to his receiving the full and convenient benefit of the right granted to him, the detriment which the defendant suffered he was obliged-to bear.</p> <p>6. Because when requested by the defendant below to charge that the presumption to defeat the right does arise from non-user during a less period than twenty-one years, the judge said that less than twenty-one years was certainly insufficient for this purpose.</p> <p>7. Because when requested by the defendant below to charge that there is no evidence that the defendant assented to a change of foundation of the dam, the judge said, ‘ I cannot say that there is no evidence on this point.’ And the plaintiff in error alleges there was such evidence.”</p> <p>cited Strichler v. Todd, (10 Serg. & Rawle, 63.) Baldwin v. Collins, (10 Wend. 167.) Stiles v. Hooker, (7 Coicen, 266.) Hewlins v. Ship-pan, (5 Barn. & Cres. 221; 11 Eng. Com. Law Rep. 207.) Butt v. Jhrie, (l Rawle, 218.) Lefevre v. Lefevre, (4 Serg. & Rawle, 241.) 3 Bac. Abr. 398, tit. Grant. Mason v. Hill, (5 Barn. & Adolph. 1; 27 Eng. Com. Law Rep. 1.) Mason v. Hill, (3 Barn. & Adolph. 304 ; 23 Eng. Com. Law Rep. 76.) Saunders v. iVeto-man, (1 Barn & Aid. 250.) Moore v. Rawden, (3 Parre. & Cres. 339 ; 10 Ereg. Com. Law Rep. 99.) 3 Campb. 514. Pentman v. Smith, (4 East, 107.) Hooker v. Bray, (10 Wend. 260.) Hughes v. Herser, (1 Binn. 463.) Commonwealth v. Passmore, (1 Serg. & Rawle, 219») Hepburn v. MDowell, (17 Serg. & Rawle, 383.) M‘Calmont v. Whitaker, (3 Rawle, 84.) Angel on Water Courses, 50, 63. Nitzell v. Paschall, (3 Rawle, 76.) Nicliol v. M Far lane, (3 Watts, 166.) MKillip v. M-Ilhenny, (4 Watts, 317.) Haight v. Aqueduct Co., (4 Wash. C. C. Rep. 601.) Congleion v. Patterson, (10 East, 130.) 2 Danv. 233. Pastorius v. Fisher, (1 Rawle, 27.) Hepburn v. MDowell, (2 Rawle, 82.) Tyler v. Wilkinson, (4 Mason, 401.) 3 Bl. Comm. 5. 5 Bac. Abr. 152. 16 Vin. Abr. Nuisance, U. pi. 3. 12 Mod. 510. Howell v-. MCoy, (3 Rawle, 269.)</p> <p>cited Cooper v. Smith, (9 Serg. & Rawle, 33.) Worrall v. Rhodes, (2 Wharton’s Rep. 427.) Yea/de v. Nace, (2 Wharton’s Rep. 123.) Beidelman v. Foulk, (5 Watts, 308.) Hoy v. Sterrett, (2 Watts, 327.)</p>