Volume 6 — Pennsylvania State Reports

<p>The law presumes that every legacy is intended to be a clear gratuity; but this presumption, like every other, may be rebutted by parol proof; and, for that reason, a legacy to the testator’s debtor is not per se a discharge of the debt. But as the presumption may be removed by extrinsic evidence, so may it be restored; and the testator's declarations before, at, and after, the making of the will, that he did not intend the debt should be demanded, constitute a defence to an action for it by the executor.</p>

<p>In error, from the Court of Common Pleas of Dauphin county.</p> <p>June 26, 1846. This was an ejectment for one hundred and fifty acres of land, in Jackson township, Dauphin county, in which Henry Wilhelm, only son and heir-at-law of Ellis Wilhelm and Elizabeth his wife, late Elizabeth Bachman, Jacob Bachman, only son and heir-at-law of Christian Bachman, deceased, and others, were plaintiffs, and. John Shoop, sen., and John Shoop, jun., were defendants.</p> <p>On the trial before Eldred, P. J., the plaintiffs gave in evidence a warrant from the late proprietaries of Pennsylvania, to Francis Gissler, dated 17th October, • 1774, for one hundred and fifty acres of land in Paxton township, including an improvement began about two weeks before, on the East branch of Armstrong’s Creek, in Upper Paxton township.</p> <p>By an extract from the books in the surveyor-general’s office, it appeared that ¿612, 15s. Pennsylvania currency, were paid for one-hundred and fifty acres of land, including a small improvement, as per warrant of the 17th of last month. This money appeared to have been paid the 24th of November, 1774.</p> <p>The plaintiff proved that Bartram Galbraith was appointed deputy surveyor by John Lukens, the then surveyor-general, on the 5th of February, 1762, and that he was reappointed by Daniel Brodhead, surveyor-general, on the 8th November, 1791, for a district that included the land in dispute; also a paper, purporting to be a survey made by Bartram' Galbraith, deputy surveyor for 'Francis Gissler, of one hundred and sixty-five -acres of land, on the 21st of February, 1775, on warrant dated October 17,1774. He proved also, that i\ was in the handwriting of Bartram Galbraith, as deputy surveyor, and that this paper was found amongst the papers of the late John Davis, a deputy surveyor of Dauphin county, in 1842.</p> <p>The survey of this tract of land has never been returned into the land-office; but on the back of this paper, (given in evidence as above stated,) the words “Ret’d” are written, also in the handwriting of Bartram Galbraith.</p> <p>The plaintiff then gave in evidence, a warrant dated December 3, 1793, to William Pain, for three hundred acres in Armstrong’s Yalley, adjoining Michael Bachman and others, in Upper Paxton township, and the survey thereon, dated December 23d, 1793, by Bartram Galbraith, as adjoining lands of Bachman.</p> <p>Also a warrant, dated January 29, 1794, to William Johnson, with a survey thereon, by Bartram Galbraith, deputy surveyor, as adjoining Michael Bachman, on the 12th of June, 1795.</p> <p>Also an application made by John Shoop, one of the defendants in this cause, filed 21st July, 1800, for two hundred acres of land, in Upper Paxton township, adjoining Simpson, Michael Bachman, &c., setting forth an improvement made by him, in 1796| and a warrant that issued the same day on the above application, on which there was a survey made by John Davis, deputy surveyor, for on© hundred and sixty-seven acres, one hundred and' sixteen perches, as adjoining on two sides, Bachman’s land in right of Gfissler.</p> <p>Also a warrant, dated 4th June, 1800, to John and Daniel Brubecker, for one hundred acres adjoining Jacob Bachman, and others, with a survey thereon, by Levi' Hollingsworth, deputy surveyor, on the 12th March, 1809, as adjoining Jq,cdb Bachman in right of Francis Q-isslcr'. These warrants and surveys adjoined and surrounded the land in controversy; and the different deputy surveyors called this tract, In 1793, Michael Bachman’s. In 1795 it was called Michael Bachman’s land. In 1800, Shoop, one of the defendants, called it, in his application, Michael Bachman’s land; and in his survey, the deputy surveyor in 1827 called it Bachman’s land, in right of Gissler; and in 1809, it was called Jacob Bach-man’s land, in right of Francis Gissler. The devisees and representatives of Michael Bachman, who died about the year 1790, were the plaintiffs, and claimed title to this land, under this warrant, in the name of Francis Gissler; although they were unable to show any conveyance or transfer of it to Michael Bachman, nor was there any evidence in the cause, which showed that Francis Gissler or any person for, or under him, has come forward to claim this land, or this warrant; which it was alleged was surveyed on the land in controversy, for moré than sixty years. Under these circumstances, the plaintiffs, to make out their claims to this warrant, and to show that they had exercised acts of ownership over, and claimed this land under the Francis Gissler warrant, gave in evidence the assessments and books in the commissioner’s office, commencing in 1185, when Dauphin was set off from Lancaster*- county, and continuing down to 1841; showing, as the plaintiffs contended, that taxes were assessed on this land during, all of that time, and paid by them, and called sometimes Michael Bachman, Bachman’s, Bachman’s heirs, Michael Bachman’s estate, ■ Michael Bachman’s heirs, and Jacob Bachman’s. -</p> <p>The plaintiffs proved by witnesses, who had known this-land,for fifty years, that, at their earliest recollection, there was an old improvement on this tract, and the traces of an eld house, then gone to decay, and other acts of ownership over the land; and that it was called Bachman’s land and Bachman’S improvement at an early' day by John Shoop, one of the -defendants. There was evidence given on this subject on both sides, which was referred to the jury.</p> <p>- The plaintiffs further proved, that the defendants went into possession of this land under their title, and with their permission, under an agreement that they might dear the land and receive the crops; and they were to pay the taxes assessed on the .same: this position was denied by the "defendants, who, supported this denial with some testimony, -when — the evidence on the subject on both sides was referred-to the jury.- . ..:</p> <p>The plaintiffs further gave in evidence the treasurer’s sale book, showing a sale of this land for the unseated -tax, to Frederick Kelker, in June, 1824. ■ ' ,</p> <p>The evidence given on the part', of the defendants is -briefly, but dearly, stated in the opinion of the court.</p> <p>A number of bills of exception to the .admission and rejéction of evidence were taken by the plaintiffs, to which it is unnecessary to refer here, as they are not noticed in the opinion of the. court,</p> <p>A number-of points were also submitted-by the plaintiffs, oh which the court were requested to instruct 'the jury. The court answered all the points submitted. The only point and the answer thereto, noticed by this court, are stated in -the opinion. .</p> <p>On the questions of law raised on the'trial, the court (EldrBD, P. J.) instructed the, jury as'follows: ' , •</p> <p>“If I understand the - plaintiffs, they claim to recover on three grounds. First, they claim a right to recover under, and in pursuance of the deed "for the land from the treasurer to Frederick. Kelker, sold to him for the unseated taxes due on it. To this, the defendants have, several objections, which, it is not necessary particularly .to-notice; as my opinion is', -that under the evidence presented by the plaintiffs, they are. not entitled to recover on this .ground. One-of the defendants’ objections is, that there being no survey returned in the land^office, .the land was not liable to.taxation although there may have been an actual survey on the ground, añd, therefore, a sale'for. taxes would be altogéther'void. This is a new question, or one that has never come directly under review by the Supreme -Court, to my recollection, and is a question of considerable importance,- as T know of many tracts" of land up^on which there are large improvements made, under the' faith of a tax sale, when no evidence can be furnished that the surveys have ever been returned into the land-office. ■ ' ,</p> <p>' “The ground on which-1 rule this question against the plaintiffs, and which I regard cdnclusive against him^ is, that however legal the treasurer’s sale may have been,. the plaintiffs. have no conveyance or transfer from Kelker, the purchaser. .The papers furnished cannot b.e construed into. !a transfer; "and the most favourable point óf viéw • in' which, it pan be considered for the plaintiffs is, that it substantially amounts to a redemption bf the tract from' the sale for taxes. ..It is true,-the land was not redeemed according to the act of l8Í5, relating to that'subject; yet from all the papers exhibited, it seems to me clear, that the parties'-interested, that is, the' purchaser at the sale and the executor of Michael Bachman, so considered it, as' they took into -account the cost and twenty-five per 'cent: The partie's interested regarding it as a redemption, third persons> have no light- to object'to it a® such. The plaintiffs certainly have shown-no transfer by the purchaser at the treasurer’s sale,- and unless it can be regarded as a redemption of this land, the title remains in him. In fact, when these papers were first offered, I understood-the counsel for the plaintiffs distinótly to say, that the receipt for'the- money was', the redemption receipt, and that, by the payment the land 'was redeemed.</p> <p>J “ The second ground upon which the plaintiffs claim a right to recover is,, that he has furnished evidence to the jury, sufficient to satisfy them, that a survey was made on this, Francis. Grissler’s warrant, and /that Michael Bachman was the owner of that warrant; but these are questions for the jury under all the evidence. I m.ay observe, howeyeiy that from all the evidence,' they might well be satisfied that a .survey was made on this warrant-; and they might also infer that Francis Grissler transferred his interest in'the war.-nt to Michael Bachman, by some conveyance now lost. At that early day, the practice in relation to transferring the interests of warrantees to warrants for land, was quite different from what it is, at the present day. .No one thought of placing it on record, and frequently warrants were treated as personal property; and'very little form or ceremony was used in passing the interest from one to another. But if the jury should believe, that Michael Bachman was the real owner of the warrant, and that a 'survey had in fact been made on it, his so grossly neglecting to return the survey may have lost him all claim on the land. It certainly would be lost to him, ,as against one who entered upon 'the land with the intention of appropriating it to his own use, and had marked out and designated the boundaries of his claim,- or it would be lost against one who had taken out a warrant and had a survey thereon, returned to the office. The plaintiffs then having neglected, 'even to this day, to have a return of his survey into the office, cannot recover against these defendants, if they entered upon this land adversely to the plaintiffs, and with the intention of appropriating it to their own use, against the plaintiffs’ title.</p> <p>“ The third ground on which the plaintiffs rely is, that.they have given evidence sufficient to entitle them to recover against the defendants, who, the plaintiffs allege, went into possession under a contract in the nature of a lease from them, and under their title. This is denied by the defendants. The evidence on this subject was submitted .to the jury. This seems to me to be the main question in the cause, and is one of fact for the jury. If the jury believe from all the evidence, that the defendants went into possession of this land as the tenants of the plaintiffs, and under an agreement that they might clear the land, have all the crops, and pay the taxes due on it, for the usé of the improved, land; the defendants have not the right now, under the evidence, and in.the absence of all title on their part, to deny the plaintiffs’ title and prevent a recovery. Upon the question of whether the.defendants went into possession under the plaintiffs,-or their agent, acknowledging their title, such as it is, this suit depends. If the defendants did so enter, it would be not only unjust, but illegal, for them to turn round, deny the plaintiffs’ title and keep them out of possession of the land; and especially so, as the defendants have made no advancements towards perfecting a title for themselves; But if the defendants went into possession of this land adversely to the plaintiffs’ title, and not under it; the plaintiffs have failed to show such a title as will enable them to recover, and your verdict should be for the defendants.” - ■</p> <p>To this charge, both parties excepted. The jury found for the defendants; whereupon, the plaintiffs sued out this writ of error.</p>

This was an action of ejectment by the School Directors of Tyrone township v. David Dunkleberger, to recover a school-house and about half an acre of ground.

<p>The reasonableness of the detention of water, by the riparian owner above, to the injury of the riparian owner below, depending, as it must, on the nature and size of the stream, as well as the business to which it is subservient, and on the ever-varying circumstances of each particular case, must be determined by the jury, and not by the court.</p>

This was an appeal by Jacob Yundt and Martin Weidman, executors of the estate of John Yundt, deceased, from the decree of the Orphans’ Court of Lancaster county, confirming the report of the auditors appointed to settle the administration account of the said executors, on the said estate. It appeared that the executors duly filed their administration accounts, which, on exceptions filed to their allowance and confirmation, were referred to auditors to settle the same.

This was an appeal from a decree of the Orphans’ Court of Berks county. June 15.

<p>A contract reduced to writing by a party, and the execution thereof witnessed by his agent, is binding on the other party; no fraud or mistake being pretended, although its legal effect may have been misapprehended.</p> <p>A guarantee, in an assignment on the back of a bond, in these words: — “ And in case the same cannot be recovered of the within named W. S., then I promise and agree to pay the amount thereof, together with all charges thereupon accruing unto the Earmers’ Bank of Reading, or their assigns,” — is a covenant that the obligor is able to pay, and that the bank, by using due diligence, shall receive the money.</p>

<p>In error to the Court of Common Pleas of Berks county.</p> <p>June 15. Peter Shearer, administrator de bonis non, with the will annexed, of Frederick Rapp, the plaintiff below and defendant in error, brought this action to recover from the executors of John Rapp, plaintiffs in error, and defendants below, the amount of the legacy or share bequeathed to him by his father, Frederick Rapp, deceased, being the one-eighth part of the estate of the said Frederick Rapp.</p> <p>The facts of the case upon which a recovery was sought in the court below, were these: On the 10th of December, 1803, Frederick Rapp made his will, and died in 1812, leaving a widow and eight children. The testator provided in his will, that his widow should have the house in which he lived, so long as she remained his widow. He also authorized her to retain as much of the furniture as she considered necessary, and directed his executors to pay over to her yearly, the sum of fifty dollars, &c., and to sell the remainder of his personal property. He then directed his real estate to be rented out by his executors, until his youngest child attained the ago of twenty-one years, when it was to be appraised, accepted, or sold; and that the appraised value thereof, if accepted, or the proceeds, if sold, together with the proceeds of sale of his personal property, should be equally divided amongst all his children. After the death of the widow, the house was to be sold, and the proceeds to be equally divided as above stated. The will also contained a clause, that in case any of his children died unmarried, and without lawful issue, the share or portion of him or her, so dying, should revert back to the survivors, share and share alike; and upon this clause the present controversy arose. Peter and John, the sons of the testator, were' appointed the executors of his will. Peter died before the testator, and John proved the will and settled the estate. Shortly after the death of the testator, the children and legatees who were of age, and the guardians of those under age, entered into an agreement with the executor, authorizing a compromise or arrangement with the widow. In pursuance of this agreement, an arrangement was effected; and the executor, with the consent of the widow and legatees, disposed of all the property, placed upon interest one thousand pounds, and gave the widow a bond with sureties, to pay her the interest thereof during her life.</p> <p>In 1813, the executor filed his account, which embraced the whole of the estate, real and personal, except ¿1000, as above stated. The account exhibited a balance of ¿3730, 15s. 5d. in favour of the estate, which the executor, after deducting his own share, paid over to the legatees, and took releases from them. The interest of the ¿1000 was paid yearly to the widow, until her death in 1830, when the principal was again divided amongst the legatees and their heirs. At the death of John Rapp, the executor, in 1842, unmarried and without issue, all the children and legatees of Frederick Rapp were dead except two, viz,, Catharine Miller and Elizabeth Haberacker, a daughter and legatee of Frederick Rapp, and the wife of John Haberacker. Haberacker and wife gave the executor two releases, one of which was dated December 30, 1814, and the other, February 16, 1830, after the death of the widow. The substance of these releases are so clearly stated in the opinion of this court, as to render it unnecessary to refer to them here. John Rapp, the executor of Frederick Rapp, left a will, in which he appointed Jacob Sauerbier and William Lutz his executors. 'After his death, in 1842, letters of administration, de bonis non, with the will annexed, of Frederick Rapp, were granted to Peter Shearer, the plaintiff in this suit.</p> <p>His honor, Judge Banks, charged the jury as follows: '</p> <p>“ The defendant’s testator died unmarried and without issue. In that case, under the will of Frederick Rapp, the money in controversy was not vested in the defendant’s testator, nor would it pass by his will to those who claim it. It reverted to others; and the plaintiffs are entitled to a verdict, unless some other defence prevents it.</p> <p>“ The defendants have given in evidence certain releases, which they contend discharge them, and the estate of their testator, from this claim. If the releases which have been given in evidence, or any of them, were given in discharge of the claim put forward in this action, then the plaintiffs could not recover. It is a fact which is submitted by the court to you to determine, what each release was given for. If no one of these was given for the debt, the plaintiff would be entitled to a verdict. If they, or any one of them, were given in discharge of this claim, then the plaintiffs could not recover, and your verdict must be for the defendants.</p> <p>“ To this charge the defendant’s counsel excepted.”</p> <p>The charge of the court was assigned for error.</p> <p>Two questions were raised on the argument here: 1st. Was the limitation over, under the will of Frederick Rapp, good, or too remote? 2d. Were the releases given by Haber acker and wife a bar to the recovery of the plaintiffs below ? It was also urged as error, that the court submitted the construction of the releases to the jury.</p>

<p>The contents of a lost declaration may be supplied by parol evidence.</p> <p>The lien which a bank has by virtue of the act of the 21st of March, 1814, and the act of the 25th of March, 1824, upon the stock and dividends of its debtor, results for the benefit of an endorser, who has been compelled to pay the bank, and who at the time of payment gives notice that he claims the stock and dividends.</p> <p>The endorser in such cases may recover from the bank the dividends that may have been declared and retained, in an action for money had and received.</p> <p>But if more than sis years have elapsed between the time at which the note became due and payable, and the commencement of the action, he cannot recover; the meritorious cause of action being barred by the statute of limitations.</p> <p>Articles of copartnership between the endorser and drawer, under their hands and seals, reciting that the note was put into the partnership concern as.part of the drawer’s share of contribution to the common stock, but in which there is no covenant to defend the endorser against the payment of the note, will not prevent the operation of the statute of limitations.</p>

June 16, 1847. The cause came on again for trial in the Common Pleas, upon the same evidence; when the plaintiff further offered in evidence the following article of agreement, the execution of which was admitted:. “ Articles of agreement made and concluded upon this 19th day of January, A. D. 1833, by and between Riah Gilson, of Reading, state of Pennsylvania, of the one part, and Christopher Medler, of Easton, state of Pennsylvania, of the other part, witnesseth, that the…

<p>Error to the Common Pleas of Berks.</p> <p>This was an action of debt, brought by Peter Filbert to the use of Sarah Fisher against John Fisher, on the following bond:</p> <p>“ Know all men by these presents, that I, John Fisher, of Long-swamp township, Berks county, and state of Pennsylvania, am held.and firmly bound unto Peter Filbert, trustee of Sarah, wife of the said John Fisher, in the sum of one thousand dollars, lawful money of the United States, to be paid to the said Peter Filbert, for the use of the said Sarah Fisher, or to whomsoever the said Sarah shall appoint, (the said John, her husband, giving her power thereto,) to which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, and every of them, firmly by these presents. Sealed with my seal, dated this fifth day of November, A. D. 1844.</p> <p>“ Whereas the above-named Sarah Fisher has instituted a prosecution, on, account of ill treatment, against the said John Fisher, her husband, and Elizabeth, his- daughter, which it is hereby intended to settle, and to bring about peace and harmony in the family:</p> <p>“Now the condition of this bond is, that if the above bounden John Fisher, his heirs, executors and administrators, shall well and truly pay or cause to be paid to the said Peter Filbert for the use of the said Sarah, as above stated, the just and full sum of Five Hundred Dollars, on demand, with lawful interest from the day of demand, without fraud or further delay, then this obligation to be void, else to remain in full force and virtue.”</p> <p>Johannes Fischer, [l. s.]</p> <p>Witness at signing: Chas. Weirman.,</p> <p>The circumstances under which this bond was given, seem to have been these: The defendant and his wife lived unhappily together, and in the fall of 1844 she separated herself from him, at the same time instituting a prosecution against him for assault and battery, upon which he was bound over to answer at the next Qourt of Quarter Sessions. At the- time of holding the court, ■ both parties repaired to Reading, where, after some negotiation between them, it was agreed that the prosecution should be settled; that they should live together again, and that a bond for the payment of five hundred dollars should be given by the defendant to Mr. Filbert, for the use of the wife. In pursuance of that agreement, the bond in controversy was executed by John Fisher. Mrs. Fisher, after thus settling the prosecution, returned-to her husband’s house and society, and remained with him until about the 19th of March, 1845, when, as she alleged, she was again compelled to leave him. Soon after this second separation, suit was brought on the bond.</p> <p>The defendant below pleaded payment with leave, &c., and gave the following notice of special matter:</p> <p>“ You are hereby notified that under the plea of payment with leave, &c., the defendant on the trial of the above-mentioned cause will offer evidence to show that the bond on which suit is brought was given wholly without consideration, and that the defendant has never received any thing therefor; that at the time when the bond was given, it was stated and agreed by the obligee, and it was so understood, that the bond was given to secure the good behaviour of the defendant towards his wife, and was only to be enforced in the event that the behaviour pf the said defendant towards his wife should thereafter be so bad that she could not live with him; that the conduct of defendant since that time has been good and exemplary towards his wife, and has given her no occasion of offence, but that the demeanour of the said wife towards the defendant has been exceedingly offensive and vexatious; that she constantly applied to him opprobrious epithets, before his 'and her children; refused to perform the duties of a wife, and rendered the life of the defendant insupportable; and although treated with great kindness, left the defendant’s house without leave or reason, saying that unless she left she could not get the money secured by this bond.</p> <p>“ That at the time when the bond was given, the plaintiff, who is an attorney, stated to the defendant, an illiterate man who cannot understand English, that the bond was to secure the good behaviour of the defendant towards his wife, and only to be enforced in the event that the behaviour of said defendant towards his wife should’ be such thereafter, that she could not live with him; that the said representations were fraudulently made; and that, relying upon such representations, defendant signed the said bond, written by the plaintiff, and the contents of which were unknown to the defendant; that the obligee has since made such declarations, and that the attempt to set up the same as an absolute bond is a fraud on the defendant and on the agreement; that the defendant was taken to the office of the plaintiff in the absence of his advisers, and this bond thus obtained from him by the foregoing and other fraudulent representations; and that it was agreed at the time when this bond was executed that the plaintiff should hold .the same as trustee, to be collected only on the foregoing conditions.”</p> <p>Upon the trial several witnesses testified as to what took place at or immediately before the signing and sealing. Charles Fisher testified that Mr. Filbert and Mr. Weirman, who were Mrs. Fisher’s attorneys, and Mr. Fisher and Mrs. Fisher, made it out among them that the bond should be for good behaviour. Mr. Weirman testified that Mr. Fisher agreed to give a bond on demand for five hundred dollars, and that Mr. Filbert said if they would remain together the money would not have to be paid, of course; but that Fisher would be liable to pay that amount, on demand, on another separation. And again, that Mr. Filbert gave as a reason why this was better for Mrs. Fisher than some previously arranged terms of compromise, that she could demand the payment of the bond at any time on her leaving him a second time, of on a second separation. Mr. Weirman did not recollect that Mr. Filbert said any thing about the bond being for good behaviour, and did not know that any thing was said by any one on that subject. It was testified by Charles Fisher, that the bond, which is written in English, was read in that language, and that'it was not explained in German to the obligor, who did not speak, and Understood very little, if a word, of English. The bond is in the handwriting of the plaintiff, who was the attorney of, and acted, as such, fór Mrs. Fisher, on the occasion when it was given, Mr. Fisher having at the time no legal adviser with him.</p> <p>Much evidence was given on both sides as to the conduct of Mr. and Mrs. Fisher towards each other, preceding the second separation, which it is unnecessary to detail here.</p> <p>The defendant below offered to prove that Mrs. Fisher had said to a witness, that she would try to get the money again; that if she failed to get it, she would go back and live with her husband: and the rejection of this constituted the defendant’s first .hill of exceptions.</p> <p>The plaintiff below offered to prove that, shortly before the second separation, Fisher called the witness in to talk about his wife; that he complained of her; said he could not do so; that he would make another vendue, and sell out every thing, and give up; that he said nothing about where his wife was to go to: and the admission of this, and of other evidence to the same effect, constituted the defendant’s second bill of exceptions.</p> <p>The plaintiff below then offered in evidence the « Greist der Zeit,” a newspaper published in Kutztown, March 20, 1845, containing the following advertisement, the publication by John Fisher being admitted:</p> <p>“ Warning.</p> <p>“ I, the subscriber, living in Longswamp township, Berks county, hereby warn all and every one, it may be whatever person it will, and even if it should be my own wife Sarah, without my express order therefor, to purchase on credit any thing upon my name, since I will pay no debt contracted in such a manner.</p> <p>“ March 20.”</p> <p>John Fisher.</p> <p>And the admission of this constituted the defendant’s third bill of exceptions.</p> <p>The evidence being closed on both sides, the defendant propounded the following points, and requested the court to charge:</p> <p>“ 1. If this is an absolute bond, as the plaintiff contends, it is yoid; because the money when collected would belong to the husband ; and therefore it would be the same hand to pay and to receive, it not being for the separate use of the wife, and there having been no previous arrangement to live separate and apart.</p> <p>“2. If the bond was only to be paid (as Charles Weirman says) when Mrs. Fisher left her husband, it is void, being against the policy of the law; being an encouragement to the wife to leave her husband.</p> <p>“3. If the jury believe that, at the time the bond was given, it was understood and agreed that the bond should only be collected, if the behaviour of defendant towards his wife should be so bad that his wife could not live with him, the attempt to set it up as an absolute bond is a-fraud, and the plaintiff cannot recover.”</p> <p>To these points the court below (Jones, P. J.) answered as follows:</p> <p>“ If this bond was executed as an absolute bond by the defendant, it is not void, for the reasons mentioned by the defendant in his first point. Though generally, a husband may not create a trust for his wife without expressing it to be for her separate use; yet when he does create such a trust, the circumstances under which it was created, and the intention, may be called in to aid and support the trust. If there were no circumstances and intention in this case, from which it might be inferred that this bond, though absolute on its face, was in fact for the wife’s separate use, it would be true that the money, when collected, would belong to the husband.</p> <p>“ If the bond was only to be paid when Mrs. Fisher left her husband, it would be void, as being against the policy of the law in offering an 'encouragement to her to leave him. Whether Mr. Weirman said it was to be paid only when she left him, is, however, for the jury to determine ; and in considering what that witness did say, you will take his whole evidence into view; unless you are satisfied that it was only to be paid on that contingency, it is not void.</p> <p>“The third point of the defendant we answer in the negative.”</p> <p>Verdict and judgment for the plaintiff; whereupon the defendant sued out a writ of error, and in this court made the following assignment of errors:</p> <p>1. The court erred in charging the jury, that the bond was not void for the reasons mentioned in the defendant’s first point, and in all their answer to the defendant’s first point.</p> <p>2. The court erred in their answer to the defendant’s second point.</p> <p>3. The court erred in answering the third point in the negative.</p> <p>4. The court erred in putting the case to the jury solely on the ground of fraud at the execution of the bond.</p> <p>5. The court erred in rejecting the evidence mentioned in the first bill of exceptions.</p> <p>6. The court erred in admitting the evidence mentioned in the second bill of exceptions.</p> <p>7. The court erred in admitting the evidence mentioned in the third bill of exceptions.</p> <p>8. The court erred in charging the jury that if the bond was not tainted with fraud, there could be a recovery upon it.</p>

<p>It is only such property belonging to a railroad corporation aa is appurtenant and.indispensable to tile construction and preparation ol'the road for use, that can claim to be exempt from taxation; such property as is only indispensable to the making of profits being liable to taxation.</p> <p>Hence, water stations and depots — by which latter is to be understood, the offices, oil-houses, and places to hold cars, and such places and buildings as may fairly be deemed necessary and indispensable to tire construction of the road — are not taxable; whilst warehouses, coal-lots, eoal-sliutes, maeliine-shops, wood-yards, and the like, are taxable.</p>

<p>June 18. This was an appeal by Jacob Hartman, administrator of Daniel Hartman, deceased, who was one of the legatees of Yost Hartman, deceased, from the decree of the Court of Common Pleas of Berks county, distributing the money arising from the sale, hy the sheriff, of the real estate of Adam Miller.</p> <p>On the 4th of June, 1841, John D. Knabb, Samuel D. Knabb, and Daniel D. Knabb, obtained a judgment by confession against Adam Miller and .John L. Eightmyer, trading under the firm of Miller & Eightmyer, on a promissory note given hy the defendants to the plaintiffs. On the 5th of July following, Jacob De Turk entered into a recognisance, as security of the defendants for the payment of debt, interest and costs, to entitle them to a stay of execution. Adam Miller, one of the defendants in the judgment, being one. of the executors of Yost Hartman, deceased, settled his account in the Orphans’ Court; and a balance appearing to be due, and in the hands of the said executor, a certified transcript, or extract of the amount of the said balance, was filed, at the instance of the legatees of the said decedent, on the 8th of July, 1842. On this transcript,, or lien,- a sei. fa. was issued at the instance of the legatees, Avho obtained a judgment thereon, on the 10th of November, 1845. On the 8th of'April, 1846, Jacob De Turk, the surety for stay of execution on the Knabb judgment, called on Mr. Smith, their attorney, and offered to pay the judgment, provided it were assigned to him. Mr. Smith, thereupon, Avith the consent of the Knabbs, accepted the proposition, received the amount then due on the judgment, assigned it to De Turk, and marked it for his use on the docket of the Court of Common Pleas. De Turk, after reviving the judgment hy soi. fa., issued writs of execution, under which the real estate of Adam Miller Avas sold, and the proceeds of sale paid into court hy the sheriff for distribution. The fund in court being insufficient to pay both judgments, the court decreed the same to Jacob De Turk. From this decree, the legatees of Yost Hartman appealed, and assigned the decree of the court below for error here.</p>

<p>The legislature have the power to tax the property, real and personal, of the citizens of this Commonwealth, for the purpose of raising " additional revenue, to be applied towards the payment of interest and the extinguishment of the debts of the Commonwealth,” created by her system of internal improvements; and every owner of real estate is bonnd to pay such part of tire state tax as is assessed on his said estate, under the several acts of Assembly, for tire us.es aforesaid.</p> <p>The owner of real estate, who derives his title from the Commonwealth, by virtue of a patent under the 10th section of the act of tire 9th of April, 1781, is not exemj>ted from the payment of Hie state tax assessed on his said estate, and which is to be applied towards the payment of interest and the extinguishment of the debts of the Commonwealth, contracted by her system of internal improvements, by force of any contract between the state and himself, under the 11th section of said act.</p>

<p>In 1842, A. M. and the firm of M. & M. gave their -promisspry note for the payment of $500, to A. J. J. of the firm of A. X and S. T. J., partners in trade. On the 22d of July, 1843, A. J. X assigned this note to G. S. P. to secure and indemnify him against liabilities incurred on account of the said firm of A. X & S. T. X The firm of A. X & S. T. J. failed in July, 1843. In an action of debt on the note, brought in the name of A. J. J. for the use of G. S. P. against the makers, it was held, that S. T. J., the partner of A. J. X, was not a competent witness to prove the execution of the instrument on which the action was founded, on the ground of his interest in the event of the suit: and this, whether A. J. J. were solvent or insolvent.</p> <p>In an action on a promissory note given to one of two partners, for the use of a third person, to whom the note was transferred to indemnify him against injury or loss on account of liabilities incurred for the firm; it was held, that the other partner was not a competent witness to prove the note, on the ground of interest in the event of the suit; and that the quantum of interest was immaterial.</p>

<p>G. E. by bis will, dated May 12, 180G, devised his estate to trustees therein named, and for the uses and trusts therein mentioned, and to establish a perpetual charity for the education of poor orphans, and directed that an orphan-house should be . erected at a designated place', and that it should be called “ JEmcws.” For the perpetuation of the trustees, the testator directed, that the places of those who died, resigned, or removed from the county of Dauphin, should be supplied by the election of a freeholder, and resident of the county of Dauphin, who was also to be a regular member of some one of the churches of the Protestant religion, to bo made by the remaining trustees, which election was to be subject'to the approval of the Court of Common Pleas of Dauphin County.</p> <p>Trustees were regularly constituted under the said will, until 1835, when the then existing board resigned; and, thereupon, their places were supplied by appointments made by the Supreme Court. In 1839, the then acting trustees, and the principal of tire orphans’ house, were incorporated by act of Assembly, under the style and title of “ The Principal and Trustees of the Emaus Orphan-house,” with perpetual succession, &c.; and, accordingly, trustees and principal were regularly constituted until the 21st of April, 1846, when an act of Assembly was passed, authorizing the Court of Common Pleas of Dauphin county to appoint the trustees, on the nomination of the respective synods of the Lutheran church, lying east and west of the Susquehanna river, in this state. In pursuance of this act of 1846, trustees were nominated by the said synods, and appointed by the said court, on the 7th of September, 1846. Meld, that the trustees elected under the provisions of die will of G. F. and the act of incorporation of 1839, had vested rights under said will and act of incorporation; that in addition to their own franchises, they were the depositaries and guardians of the vested rights of the beneficiaries, the orphan children; that they were divested of those rights, privileges, and franchises, by the act of 1846, •without a trial by due course and process of law; by reason of which, the solemn contract of the state, as contained in the charter of 1839, was impaired, and that, therefore, the act of the 21st of April, 1846, was unconstitutional and void.</p> <p>An act of Assembly, whereby a man’s property is swept away from him without a hearing, trial, or judgment, or die opportunity of making known his rights, or producing his evidence, is not “ the law of the land,” within die meaning of the 9th section of the declaration of rights, as set forth in the Constitution of Pennsylvania. By the “ law of the land,” is meant die law of an individual case, as established in a fair, open trial, or an opportunity given for such a trial in open court, and by due course and process of law.</p>

<p>The popular meaning of words is the hest criterion of the'intent of a testator; and technical words: of-general import will be restrained, if coupled, with provisions • which are not applicable, in‘the'common apcep'tation thereof, to particular species of property. . . .' ,</p> <p>Hence, when a testator directed his executors to sell all his real .and personal estate, and to distribute the proceeds among certain children, his bonds, notes, and caéh, do not pass under such bequest, but by the residuary clause.</p> <p>A testator ordered and directed his executors to sell, at public sale, all his real and personal estate that he might be possessed-of at the time of his death; and the proceeds of such sale, after deducting therefrom all 'legal charges, he gave and bequeathed, principally, as follo,Ws: — to his daughter Catharine, ope equal fourth . part of the money arising from the sale of his real -and personal estate; to his daughter hlargaret, one equal fourth part thereof;.-to his daughter Mary, one equal -fourth part thereof; and unto-his son¡ Daniel Hunter, and to his heirs'and assigns, the remaining one-fourth part thereof, together with the wearing apparel, “ and the residue and remainder of testator’s estate not herein before bequeathed, to hold the same to him, the said Daniel Hunter, Ms heirs and assigns for ever.” Part of the personal estate of the testator consisted of bonds, notes, and cash, which, at the time the inventory was filed, amounted to more than $15,000.</p> <p>Held, that when the testator directed his executors to sell all Iris real amd personal estate, he evidently meant that kind of property which it was usual to sell, according to the customs of the country, and that the bonds and notes were not intended by him to be included in such direction; that the bonds and notes did not pass under the bequests of testator, of the one-fourth part of the moneys arising from the sale of his real and personal estate, to each of the four legatees named in his will, as entitled to such share thereof; but that they passed as an additional bequest, to his son, Daniel Hunter, one of the said legatees, under the residuary clause in the will.</p>

<p>Under the act ofthe 10th of March, 1810, a prothonotary is not allowed to retain the expenses of clerk-hire and stationery, out of the excess of fees received over $1500, before accounting for, and paying over to the Commonwealth/z/ty^er centum of the said excess: all that he can retain,is the sum of $1500; and he is bound to account to the Commonwealth for one-half of all fees received above that amount.</p> <p>The act of the 10th of March, 1810, entitled “An act taxing certain officers,” requiring prothonotaries to pay into the State Treasury fifty per centum of the excess over $1500 of fees received, is to be viewed as a law fixing and defining the compensation of the said officers, and not as a law assessing or levying a state tax, and is not, therefore, within the repealing clause of the 34th section of the act of the 29th of April, 1844, entitled, “An act to reduce the state debt.”</p>

<p>In error from the Common Pleas of Dauphin.</p> <p>June 28. Trespass against the sheriff for seizing the property of the defendant in error, under an execution against’Johnson. It appeared on the trial that Johnson was a marble mason and lessee of a lot, on which he had erected a shop which he had the privilege of removing, and in which he carried on his trade. In November, 1842, he was the owner of a quantity of marble and 'worked stone lying on this lot and another one. On the 18th he entered into an agreement with Lesley, who was then one of his workmen, and to whom it was alleged a sum of money was due for wages, by which he sold his stock of marble, and received a note for the balance remaining due after deducting the wages due to Lesley. At the same time, they sigued a distinct agreement, by which Lesley agreed to employ two apprentices of Johnson until the next spring, at wages to be determined by that time; it being agreed if there was enough work to employ them, Johnson should receive three dollars per week, and if not, then, not less than two; Johnson finding the apprentices in hoarding and' clothing. Lesley also agreed to pay a proportionate part of the ground-rent for the lot, and a reasonable rent for the shop, fences, &c., until he removed the stock. It was proved that, after this assignment, possession was given to Lesley, and that Johnson rarely went to the lot, unless requested by Lesley, to assist him in making sales.</p> <p>At the time of the assignment, Johnson was much indebted, but had other property besides that conveyed to Lesley, all of which was sold by the sheriff. On the 8th November, 1842, a judgment was confessed by him, and this property sold under a fi. fa., issued in January, 1843. The books of Jobusou and the accounts which were settled between himself and Lesley, were not produced, and there was evidence that at that time Lesley was a man without property.</p> <p>There were two exceptions arising out of the following circumstances :• First, Johnson having been released by Lesley, was called as a witness by him, and examined under objection. Second, After the evidence was- closed, the plaintiff amended his narr., by increasing the damages from $700 to $2000, the defendant objecting and asking a continuance on payment of costs by plaintiff. The defendant asked instructions: First, That the agreement stipulating for an advantage to Johnson was entirely void as to his creditors. Second, That if a partial possession-was retained by the assignor, or his apprentices, it was void.</p> <p>In answer to the defendant’s points, the court (Eldbjed, P. J.) instructed the jury that the evidence, if believed, showed a full and entire possession was given, or such as the nature of the articles admitted of, and refused to decide the assignment void as a question of law. That there being judgments against the assignor, the plaintiff was bound to remove all doubts as to the fairness of the transaction, as to the consideration, the delivery of possession and the intent of the parties in the transaction.</p> <p>The charge, that on the evidence, the plaintiff might recover,, and the answers to the points submitted, together with the exceptions stated above, were the errors assigned.</p>

<p>In error from the Common Pleas of Dauphin.</p> <p>June 24. Debt on an official bond against Hutchinson, late prothonotary of the District Court of Philadelphia. The condition of the bond, which was joint and several, was, inter alia, that he would « faithfully account for and pay over into the state treasury all public moneys which shall come to his hands from time to time, during Mb continuance in the said office.”</p> <p>The action was to recover fifty per cent, of his fees received from his successor in office after defendant had retired. The defendant gave in evidence an account settled by the auditor-general, in 1830, at which time he held the office of prothonotary, in which he had been charged with fifty per cent, of the fees by him received, which were not free from taxation, without an allowance for the expenses of the office, for the purpose of showing he had been overcharged the sum of $433 34, which he claimed to deduct from the present balance. An objection was taken that the last settlement was conclusive, although there were errors, on which ground the evidence was rejected.-</p> <p>The court (Eldred, P. J.) directed a verdict for the plaintiff. The errors assigned were:. 1. The rejection of the evidence.' 2. The charge that an action could be maintained oh an official bond, though the claim was on account' of fees received after removal from office. This had been the subject of a prayer for instructions.</p>

<p>Where land was sold at a certain price per acre, neat measure, and was described as containing one hundred and twenty acres, more or less: after deed delivered and the purchase-money paid, there can be no recovery for a deficiency of about six acres unless there be actual misrepresentation, or the concealment of a fact distinctly known to the vendor. It is not necessary that he should disclose his suspicions of the existing deficiency.</p>

<p>In error from the Common Pleas of Dauphin county.'</p> <p>June 29. The defendant in this action was the drawee’ of an order for the payment of money which was claimed by Finney as assignee of Richards, the former holder, and by Lescure as his bankrupt assignee. The action was an amicable one, to try whether the assignment to Finney was a fraud on the bankrupt law. The evidence given in. the cause was considered as a special verdict, and upon that judgment was given below in favor of Finney. The material facts were, that Richards, being the holder of an order on McAllister, on which there remained a balance of $433 50, assigned it," on the 7th June, 1842, to Finney, who was a creditor. The evidence showed that this was voluntary on the part of Richards, there having been no coercion or threat of suit used by Finney, who had merely presented his account to Richards. At tMs time Richards was a stone-mason, and had been engaged in the lumbering business, and the assigned order constituted all his property of any value, excepting a bridle, saddle, and gun. On the 18th June he swore' to his petition in bankruptcy, stating his debts to be upwards, of $1200, and his property to consist of five worthless claims. In his examination he stated he did not know that at the time of the assignment he intended to apply for the benefit of the bankrupt law: but that he was so much in debt, he knew he could not pay, and he formed his determination to apply some days before the date of his petition, in the event of any creditor pressing him.</p>

<p>In error from the Common Pleas of Dauphin county.</p> <p>June 30. These were two actions of debt, the first against the sureties of the prothonotary of the Common Pleas of York, and the other against the sureties of the clerk of the Orphans’ Court, register and recorder of Monroe, to recover the amount of taxes on writs levied by tbe act of 1830, and received by the respective officers while in office. The condition of the bond of the prothonotary was, that if he should faithfully execute the additional duties of the said office, prescribed by the act of 1830, &e., and should-pay over all taxes received under said act, and in all other particulars, conform to said act, then, &c. To this the plea was the statute of limitations. The bond was dated in 1830, and the suit was brought in 1845. But when the moneys were received did not appear from the paper hook. The act of 1808, which is incorporated in the act of 1830, limits the action against the sureties to five years from the date of the recognisance. The court (Eldred, P. J.) gave judgment fro forma for the defendants.</p> <p>The condition of. the bond in the second case was, that the clerk, &c., should faithfully perform, &e., and account for the moneys and taxes which should come to his hands during his continuance in office, as well in pursuance of .the act of 1830,, as of every other act of Assembly relating to the said respective offices, and should deliver up, &c., &c. The same plea was entered in this case as in the other, and judgment for the plaintiff was given by consent, to be taken off if this court should decide in Commonwealth v. Johnson, that the statute of limitations debarred the Commonwealth. The Commonwealth sued out a writ of error in each case, and in the latter a motion to quash was argued with the principal question.</p>

In error from the Common Pleas of Dauphin. June 30. Replevin for grain. On the 2d of March, 1843, judgment was entered against Crosson, and on the same day a fi. fa. issued, which was levied on the defendant’s land. On the' 6th, Crosson demised the land levied on to James, for two years, from the 1st of April, at an annual rent, payable in advance, and received the rent for the first year.

<p>A defendant is precluded from supplying a deficiency in his notice of special matter, by embodying, with it, the omitted matter in a special plea.</p> <p>The use of an invention by special permission of the patentee, is not, under the act of Congress, a use of it by the public.</p> <p>A right to an invention, like every other right, may be dedicated, surrendered, or abandoned to the public; and when so dedicated, surrendered, or abandoned, it can never be resumed.</p> <p>Where the original inventor of a new and useful plan to construct bridges, gave a special parol license to two persons to build bridges on his plan, before his patent . had been actually taken out; it was held not to be an abandonment of his right.</p>

<p>In error from the Court of Common Pleas of Union county.</p> <p>July 5. This was an action of ejectment for a tract of land, in Chapman township, Union county, containing one hundred and fifty acres, brought by John Baskin and John Snyder, against Michael Seechrist.</p> <p>On the trial of the cause in the court below, before Wilson, P. J., the plaintiffs proved, that for the land claimed by them in this suit, Joseph Van Gundy obtained a patent from Penn, on the 16th of April, 1776. On the 18th of April, 1776, Joseph Van Gundy mortgaged four tracts of' land, in which was included the tract in controversy, to Hannah Lethgo. Her executors, Amos Long and Arabella Young, late Arabella Long, sued out a sci. fa. on this mortgage, in the court of Common Pleas of Northumberland county, where it had been recorded, to May Term,' 1790: Union county, in which the land is now situated, being at that time a part of Northumberland county. On an alias scire facias, to August Term, 1790, which, as well as the previous writ, was returned “nihil,” judgment was’entered for the plaintiffs. On this judgment, a writ of levari facias, for the sale of the land, was issued to November Term, 1790, and returned, “ nob executed.” On an alias issued to August Term, 1791, the sheriff (Withington) returned, “ land sold to Thomas Duncan, August 3d, 1791, for ¿642 to which was added the following: “ Purchased in by me, in trust for Arabella Young, one of the plaintiffs. ' (Signed) Thomas Duncan.” This was all the evidence of legal title, given by the plaintiffs. It was not shown, that a deed was ever made to Thomas Duncan, or to Arabella Young. The plaintiffs, however; proved, that John Baskin, one of the plaintiffs,. on the 19th of January, 1841, entered into an agreement with the defendant, by which the defendant took a lease of the property from Baskin, by which he was to give up the possession of the property to Baskin, on the 1st of April, 1842. Qp the lease, a further agreement was subsequently endorsed, to which Seechrist, the defendant, was a party, and by which he further recognised a tenancy.’ The lease commenced with the following preamble:</p> <p>“Whereas, John Baskin, of Selinsgrove, Union county, has by an article of agreement, dated January 12th, 1841, bought of John Lashells, Esq., attorney in fact for Edward Thompson, of .the city of Philadelphia, four certain tracts of land, situate in Chapman township, Union county, two of which are now in the occupancy of Michael Seechrist, adjoining lands of Samuel Hunter, Abraham Zeigler, and others, the one tract containing about one hundred acres, and the other about fifty' acres, and adjoining each .other. Now this agreement witnesseth, that the said Baskin doth lease and to farm let unto the said Michael Seechrist,” &c.</p> <p>Endorsed on the lease was the following and .further agreement :</p> <p>“ I do hereby agree to pay all the taxes for the land leased by me from John Baskin, in Chapman township,‘in consideration of his allowing me to have the rent for house and piece of land rented by me to Daniel Wolf, which is part of said land. February 19, 1841.</p> <p>(Signed,) Michael Seechrist.”</p> <p>The defendant called and examined the following witnesses:</p> <p>Thomas Thursby testified, that he knew the land on which Michael Seechrist lived. The witness proceeded, under objection by the plaintiffs, which was overruled by the court, and was plaintiffs’ third bill, to testify, as follows : Twenty-one years ago, last fall, I helped him, Michael Seechrist, the defendant, to grub a piece on it. Here the plaintiffs objected to proof of improvements made by Seechrist on the land, or the kind of improvements. The court said that the defendant might show, that he was in possession, how he was in possession, and how he occupied the land; and overruled the objection, which was plaintiffs’/ow£7¿ bill. The witness then proceeded as follows:</p> <p>“ I cannot, say how much he grubbed; think thirteen acres, not all that fall — put it out in wheat that fall and the fall after. He built on the land a house and barn, between one and two years after. He moved in with his family and continued there till the present time — cleared land, year after year. Thinks in 1841 had seventy acres cleared. Hr. Baskin never lived on the land, nor farmed any on it, that I know of.” Cross-examined: “ Cannot tell how much he had in possession twenty-one-years ago. I do not know that Patrick Goulding ever had possession of the land.” /</p> <p>Jacob Seechrist, affirmed. “ Twenty-two years ago this fall, my brother took possession by beginning to grpb now land. He had hands to work through the winter; called it thirteen acres. In the spring he built a house on it, and moved on it. Built a barn pretty soon, first one stable and a threshing floor; cleared land and put it in grain; kept clearing all the time some; has lived there ever since. Had cleared from seventy to seventy-five or eighty acres in 1841, planted a few apple trees, and some cherry trees. I spoke, to Hr. Baskin after the lease was given. He spoke to me about the land before the lease was given. He asked me how long Michael was living there, and I told him. He said he heard this land Michael was living on, was for sale. He asked me if Michael would be able to buy it. I told him he would not, unless he got a good chance in payments. He said, not to say any thing about it, or somebody else would go and buy it. Said I might tell Michael. I told Michael; Michael allowed he could, got no good right. After the lease was given, I told the doctor I thought he had not a good right; that he should not have brought Michael under a lease, that it was said he had not a good right, and said if he had not a good right, we might call him a bad man.. Another time he told me, I should come along and show him the comer. I told him I would not.”</p> <p>Cross-examined. “It was always said Goulding owned the land. The doctor might have said so to me. Do not recollect that I ever told Michael, it was said to be Goulding’s. Might have talked to him about Goulding’s claim. Was talked so in the neighbourhood. I saw a young man about twenty years ago, who called himself Goulding. Michael, appeared to be willing then to take a lease. Think it was the first year Michael moved on the land. Michael never paid him a gray mare on account of improvement. Goulding wanted my mare — offered to sell the land to me and Sinolair, and would allow me for the mare $ 100. We would not make a bargain till we knew whether he had a right to the-land. I do not know that Michael claimed the land then. Goulding said he had a good title for the land, and he would give Michael a lease for the land. Michael and I met him afterwards at Selinsgrove. We had a talk about a lease. We told him we would take a lease if he had a right. He would not give one. Was something said about seven years. Nothing more said. He went away and saw him no more after. We could not agree. I don’t know of Sheriff Martz ever being there.”</p> <p>William Seechrist, sworn. “ Am a son of Michael Seechrist. I am twenty years of age. My father has lived on this land as long as I can remember. I do not know whether I was born there or not. Dr. Baskin came to our house and said he had a good right, and wanted to have the agreement signed, and said if he would not sign it, he should leave it — if he would sign it, he might stay eight or nine years. He was there more than once. He brought sugar-sticks and gave' the little ones. The first time my father would not sign it.”</p> <p>Cross-examined. “ I- was at home when the sugar-sticks were given; got none. It was not signed that day, was signed after the sugar-sticks were given — gave to all the children different sized pieces. I was once before examined and swore to the same thing. I do not know whether I told all before. I swore before, that the doctor'told, if he did not take a lease, we should leave the land. Did not hear the doctor offer to sell the land. Did not swear before that he did, and that he could have eight or nine years to pay it. I was at school the day it was signed. Was not there when. Keyser put his name to the paper, and do not know where the doctor went to from there. Had no doctor there before that time in sickness, that I know of.”</p> <p>Jacob Keyser, Sworn. “When the lease was signed, the doctor said he had a good title, and if Seechrist would come to his house he would show it to him. Soechrist said he did not know whether a title was good or not. The doctor said if he could come up and bring a person with him he would show him the title — that he would rather give him a good bargain, as go to law; that he hated to go to law. ' I was examined before the justices in this town.”</p> <p>Jacob Seechrist, sworn. «Doctor Baskin never was in possession of this land.”</p> <p>In the course of the trial, and before the testimony on the part of the defendant was given, the plaintiffs offered, in connection with the patent, the mortgage of Hannah Lethgo, from Yan Gundy, and the writs of scire facias on the mortgage of Hannah Lethgo, by her executors, and the writs of levari facias, under which the land was sold by the sheriff, which were in evidence; and as part of the said records, a deed from Andrew Albright, sheriff, to Patrick Goulding, for the four tracts of land included in the patent, with the -acknowledgments, dated 29th of August, 1804.- Objected to, and objection sustained by the court. This was plaintiffs’ first bill of exception. The plaintiff then offered in evidence the same record in connection with the certificate of the prothonotary, dated August 20, 1842, that search has been made for the proceedings to make the deed to Patrick Goulding. Also a copy of a deed from Andrew Albright, sheriff, to Patrick Goulding for the four tracts of land mentioned in the patent, and mortgage already in evidence— dated August 19, 1842 ; also, that search has been made for the deed from Andrew Albright to Goulding, and for the petition recited in the said deed; also the record of a mortgage dated 10th November, 1817, Patrick -Goulding to Thomas Owen, jun., and Jared Longstreth, recorded in Union county.’ Also the record of suit, the señe facias on the, mortgage, Owen and Longstreth for Owen and Richards, against Patrick Goulding, 144, May Term, 1821. Also record of sheriff’s deed in Union county, Isaac Martz, Esq., sheriff, to Thomas Owen, jun., and William P. Richards, September Term, 1821; also, articles of copartnership between Thomas Owen, jun.j Edward Thompson, and William P. Richards; also, dissolution of partnership and assignment of Thomas Owen to Thompson and Richards — 30th November, 1822, agreement between William P. Richards and Edward Thompson — 19th November, 1825, assignment, Edward Thompson to Richard Renshaw and Peter Mackey, in trust to pay creditors — 13th July, 1839, appointment of Enoch Garter, as assignee of Edward Thompson in place of Renshaw and Mackey. Copy of petition and bond, 27th February, 1840. Letter of attorney, Enoch Carter to Edward Thompson, to sell real estate —24th December, 1840, letter of attorney, Edward Thompson, to John Lashells, to sell real estate — 18th January, 1841, deed, John Lashells, attorney m fact for Edward Thompson to John Baskin and John Snyder for this land; and in connection with this, the deposition of Joseph P. Morris, taken 9th of March, 1848, and also his deposition taken on the. 5th January, 1843. Also proof of search made for the original from Isaac Martz, Esq., sheriff, to Owen and Richards. Also lease dated 12th January, 1841, between John Baskin and Michael Seechrist. Also agreement endorsed thereon, dated February 19, 1841, signed by Michael Seechrist;</p> <p>The defendant objected to all the evidence contained in the above offer, except the lease of agreement of 12th of January, 1812, and the agreement endorsed thereon, on the 19th of February, 1841, bn the ground that no title was shown in Patrick G-oulding, and consequently that- all the subsequent proceedings were a nullity, and vested no title in the plaintiffs. The court sustained the objection, and sealed’ plaintiffs’ second bill of exception. The plaintiffs, after defendant had closed, offered the deed of John Lashells, attorney in fact, of Enoch- Carter, to John Baskin and John Snyder, for this land. This was offered to show that Baskin and Snyder were equally interested in the land leased to defendant. .Objected to by defendant; ' The court sustained the objection and sealed the plaintiffs’ fifth bill. The plaintiffs then renewed their offer of all the papers and records offered .before, to the rejection of which, their second bill of exception was taken, for the purpose now of repelling the allegation of fraud, or improper conduct in obtaining the lease. By the court: “The papers and records, now offered a second time on this trial, were given in evidence on a former trial, as well for the purpose of showing title in the plaintiffs, as to show that there was no imposition practised upon the defendant, in leasing to him. The case was carried, up to the Supreme Court, by writ of error; who decided that it was improperly received. The evidence offered by the plaintiffs does not show title in them, and the admission of it would not vary the case.” Rejected, and plaintiffs’ sixth bill sealed. The plaintiffs then offered the triennial assessment lists of 1820, 1830, and 1826, and also in connection; the mortgage of 10th November, 1817, from Patrick Goulding to Thomas Owen, jun., and Isaac Longstreth, and the evidence embraced in the preceding offer, for the purpose of showing title in Patrick G-oulding, under whom plaintiffs claim. Rejected; and plaintiffs’ seventh hill sealed.</p> <p>The defendant requested the court to charge the jury as follows:</p> <p>1. That consideration is absolutely necessary to enable a party to enforce an agreement; and plaintiffs have shown no consideration whatever as. the foundation of their agreements in evidence— one dated 19th January, and the other 19th February, 1841.</p> <p>2. If the jury believe Michael Seechrist was induced to become a party to the agreement aforesaid upon the assurance of Dr. Baskin that he had good title to the land, the said agreements are void, inasmuch as the doctor has not shown any title for said land.</p> <p>8. That whether the said agreements of Michael Seechrist were obtained by misrepresentation or mistake on the part of Dr. Baskin, is not material in either case; they are equally void, and verdict should be for defendant.</p> <p>The court (Wilson, P. J.) charged the jury, that under the evidence in the cause, the plaintiffs had no title, never had been in possession, and had no right of possession, and could not recover. That the representations made, and influence used, as disclosed by the testimony, in procuring the lease, are such as between the parties, where no consideration is shown for the foundation of the lease, as will dissolve the relation of landlord and tenant between them, and place them in the situation in which they were before the lease was entered into, and in that situation the plaintiffs could not recover.</p> <p>The points of the defendant were answered by the court as requested. To the charge of the court the plaintiffs excepted. The jury found a verdict for the defendant; whereupon the plaintiffs sued out this writ of error, and assigned the following errors here:</p> <p>1. The court erred in rejecting the evidence contained in the 1st, 2d, 5th, 6th, and 7th bills of exceptions ; and in admitting the evidence in 3d and 4th bills of exceptions.</p> <p>2. The court erred in their answering the defendant’s points.</p> <p>3. The court erred in charging the jury that a man in possession, taking a lease, stands in a very different situation than a person taking one when out of possession. ■</p> <p>4. In charging the jury, “ had their (the plaintiffs) offer been entertained and admitted in evidence by us, it would not have shown title in plaintiffs.”</p> <p>5. The court erred in taking the facts from the jury, and deciding the plaintiffs cannot recover.</p>

<p>The endorsee of over-due paper takes it exclusively on the credit of the endorser, and subject, even without proof of mala files, to all the intrinsic considerations that would affect it between the original parties,; but where the time of transfer is not admitted, and there is not, as there seldom can be, direct evidence of it, the principle which raises a presumption of consideration for the transfer, raises a presumption also that it was made in the usual course of commercial business, and consequently before the day of payment.</p> <p>A contract of endorsement without date and without witnesses, as it usually is, is so peculiarly susceptible of fraudulent practice upon the drawer, by precluding, perhaps, a just defence on original grounds that the presumption of fairness primarily applicable to it is not only of the slightest grounds, but open to be blown away by the slightest breath of suspicion; it ought, therefore, to appear, that there are no unusual circumstances connected with the transaction; for every thing which does not naturally fall in with the current of mercantile dealing, is ground of suspicion.</p> <p>In. a suit upon a note by the endorsee, against the drawer thereof^ if the evidence raise a suspicion to the extent of aprima facie case, the defendant may compel the plaintiff to show when, and how, he became the holder.</p> <p>Where, therefore, in an action upon anote by the endorsee against the drawer thereof, evidence was offered, but rejected by the court, to prove that the defendant had publicly repudiated the note, which was not put in suit until affor the lapse of three years from the day it became due; that payment was not demanded at the place where the note was made payable; that the plaintiff refused to permit the defendant to inspect his-books; and that it did not appear that the note was protested, as is usual in such cases, nor notice of dishonour given to charge the endorser: it was held, that all, or any of these circumstances, proved or conceded, would be sufficient to cast the burden of proving the time and consideration of the transfer on the plaintiff, and so let in the evidence of want of consideration between the original parties.</p>

In error from the Common Pleas of Columbia county. July 7. This was an action of slander brought by Leonard Steinman against John McWilliams.

In error from the Common Pleas of Union county. July 8. William Donaldson and Anna Maria, his wife, against the West Branch Bank and the Bank of Pennsylvania.

In error from the Court of Common Pleas of Union county. July 8. This was a scire facias on a mechanic’s lien, in which Henry Noll was plaintiff, and Absalom Swineford, and Dr. Joseph R. Lotz, building committee of the First Presbyterian church of New Berlin, and Elias Fees, contractor, were defendants.

<p>On exception to bail entered on an appeal from tlie judgment of a justice of the peace, and notice served on the appellant to justify his bail; the proper place to justify the same, until a transcript be taken and filed in the Court of Common Pleas by the appellant, is the court of the justice.</p> <p>After notice to justify bail entered on an appeal by a defendant from the judgment of a justice, and the rejection of the bail for insufficiency by the justice; if the defendant take and file a transcript of the suit and proceedings thereon,- in the Court of Common Pleas, the court will, on application by the plaintiff, strike off the appeal.</p> <p>An attorney, who appears for a party in a case pending before a justice, and tries the cause, becomes, under the act of 1810, the-agent of such party; and the service, on such attorney, of notice of a rule to justify the bail entered on an appeal from the judgment of the justice, by the party for whom he appeared, was held sufficient.</p>

Isr error to tbe Court of Common Pleas of Columbia county. July 9.

July 9.. This was an action of debt, brought by John Bieber against Isaac L. Beck. The facts of the case, as found by the special verdict, are these: John Bieber, the plaintiff in the above-stated suit, brought an action against John Dreisbach and Thomas Dreisbach, to August Term, 1843. The defendants, by their attorney, confessed a judgment on the docket, for the sum of $155 67, the amount of the plaintiff’s demand, on the 29th of August, 1843.

In error from the Court of Common Pleas of Union county. July 9. Held: was to be the object of his bounty. The Lutheran church in Selinsgrove, holding and teaching the doctrines that were held and taught when Frederick Plawyer was a member of it, and when he made his will, it cannot be questioned, is the congregation entitled to the fund.

<p>In error from the Common Pleas of Susquehanna county.</p> <p>July 12. This was an action of ejectment brought to recover three hundred and thirty-eight acres of land, in which Archippus Parrish was plaintiff, and Miles Dikeman, Asher B. Beamans, Tyler Carpenter, and Joel S. Tingley, were defendants. The case was tried at a special court, held by Anthony, P. J. On the trial, the plaintiff gave in evidence a warrant to Andrew Allen for three thousand acres of land, dated August 20, 1774, situated on the waters of the Meshoppen, and survey thereon, in September, 1775, for three thousand and eighty-seven acres, thirty-nine perches: in lots from No. 1 to No. 10, inclusive. • The defendants admitted that lot No. 10, containing three hundred and thirty-eight and a half acres, was in their possession; that it was part of the three thousand acres described in the warrant and survey of Andrew Allen, and that it was the lot claimed by the plaintiff in this ejectment. The plaintiff then offered in evidence a list of unseated lands, entered in a book in the commissioners’ office; the assessment of unseated lands entered in a book in the commissioners’ office; the entries in the day-book of the commissioners’ office of the appointment of their clerks; a list in the handwriting of one of their clerks, of the unseated lands of delinquents; a list of original sales of unseated lands for taxes, by the sheriff; and called a witness* who was clerk of the commissioners, who proved that the lists, assessments, &c., offered in evidence, were contained in official books, and on official papers belonging to and remaining in the commissioner’s office. The defendants objected to the books, lists, and papers offered in evidence; but the court admitted the evidence, and sealed defendant’s first, second, third and fourth bills of exception.</p> <p>The plaintiff then offered in evidence a certified copy of the original warrant, which could not be found, signed by the board of commissioners, dated 4th September, 1805, directed to the sheriff to sell for taxes, for the years 1796, 1799, 1801, 1802, and 1804; and which copy was certified on the 10th April, 1824, by the board of commissioners of that year. Objected to by the defendant, but admitted by the court, who sealed defendant’s fifth bill of exception.</p> <p>The plaintiff then gave in evidence, under objection by defendants, a deed, dated August 29, 1807, from the sheriff to Roswell Wells, for three thousand and eighty-seven and a half acres of land, in which was recited the warrant to sell for taxes for the above-stated years. This deed was acknowledged, in open court, on the 29th of August, 1807, and the acknowledgment proved by the certificate of the prothonotary endorsed thereon. This was defendant’s sixth bill.</p> <p>The plaintiff then read in evidence a deed, dated 29th March, 1810, from Roswell Wells to Archippus Parrish, sen., for lots Nos. 7, 8, 9 and 10, which included the land in controversy in this suit. This deed was recorded in Luzerne county, on the'28th of January, 1811; Susquehanna, county, in which the land conveyed is now situated, not being at that time organized for judicial purposes. These lands, it appeared, were subsequently mortgaged by Arehippus Parrish, sen., to Amory Gamage; and under a writ of scire facias, issued on this mortgage, at the suit of Amory Gamage, for the use of Archippus Parrish, jun., in the District Court of the United States for the Western District of Pennsylvania, judgment was obtained on the 7th of November, 1836, for $5121 12. On this judgment a writ of levari facias was issued, and the land mortgaged, viz.: lots Nos. 7, 8, 9 and 10, sold to Archippus Parrish, jun., who received the marshal’s deed for the same.</p> <p>It appeared from the evidence adduced on the part of the defendants, that the large tract covered by the Allen warrant and survey, which included lot No. 10, the land in controversy lay vacant until the autumn of 1799, when one Tarbox entered on lot No. 10, cleared a small portion of it, and, in 1800 and 1801, sowed about seven aeres in grain. In the winter of the latter year he abandoned the possession, after selling the grain in the ground to one Torrey, who reaped it the next year. From that time until 1810, the land remained vacant, when one Oliver Graytracks took possession of the clearing, subjected it to a course of cultivation, and built a barn in 1815 or 1816. When Graytracks left, he had cleared about forty acres, and had sixty acres under fence. He was engaged in the lumbering business, and occasionally returned to the land. The defendants gave in evidence a deed of conveyance of the land in question, from the said Oliver Graytracks, to Daniel McMillan, dated September 3, 1817, which was acknowledged and recorded on the 5th of same month; a deed, in consideration of natural love and affection, from Daniel McMillan, to his sons John and Angus McMillan, dated April 30, 1822, and acknowledged and recorded on the 5lh of May, 1822; and also two deeds, made for valuable considerations, from John and Angus McMillan respectively, to Elkanah Tingley, for their respective undivided moieties of the land; the one from John bearing date 16th April, 1823, and the other from Angus, bearing date May 1, 1823, and each duly acknowledged and recorded. They also gave in evidence the record of a judgment confessed in August, 1820, by Daniel McMillan, John McMillan, and Alexander McFarland, upon which legal process was issued, and the land sold as the property of McMillan, to Tingley, by the sheriff, who conveyed it to the purchaser by deed, dated January 19, 1824. The defendants then gave in evidence a regular chain of title, by legal conveyances, from Tingley down to the present defendants.</p> <p>The plaintiff then gave in evidence an article of agreement between Archippus Parrish and Daniel McMillan, dated November 2, 1817, by which Parrish agreed to sell to McMillan, for the consideration therein mentioned, one tract of land lately occupied by Oliver Graytracks, supposed to contain three hundred acres, and another tract adjoining that, on which McMillan then lived, and containing one hundred and one acres. It appeared, that previously to entering into this agreement, McMillan called on Parrish and informed him, that he. had bought out the improvement of Graytracks on his, Parrish’s land, and on which he, Graytracks, had entered under a verbal lease from Parrish; that he wished to purchase of him, Parrish, three hundred and fifty-five acres, including the Graytracks improvement; whereupon the article of agreement was entered into, as above stated. It also appeared, that in a year after his purchase, McMillan not being able to meet his payments, got Parrish to take back the land and pay him for improvements made; that he entered into an agreement with Parrish, in which he recognised and fully admitted the superior right of Parrish, submitting the valuation of the improvements to three men; and that after the award, McMillan agreed to occupy the land in question as the tenant of Parrish. It also appeared that one-fifth of three-fourths of the land in. controversy ivas forfeited to the Commonwealth by the attainder of Andrew Allen, the original warrantee, in 17-79, for high treason; and that his lands were not restored to him by his pardon, in 1792. Other evidence was given, which it is not necessary to notice here.</p> <p>After the evidence was closed on both sides, -the defendants propounded seven points, on which'they requested the court to charge the jury; but as the answers of the court to the third, fourth, and fifth points propounded are only assigned as errors here, it is unnecessary to refer to the others.</p> <p>The following were the third, fourth, and fifth points :</p> <p>8d. That even if the said Roswell Wells took a good title under the sheriff’s deed to him, of August 29, 1807, yet the defendants, having shown a continued possession under deeds of conveyance duly recorded, from September 3, 1817, to the commencement of this suit, December 17, 1844, are protected by the statute of limitation, and that the plaintiff cannot recover the said lands.</p> <p>4th. Elkanah Tingley, having purchased from John and Apgus McMillan, and took his deeds from them respectively, of April 16, 1823, and May 1, 1823, by deeds recorded May 3, 1823, the said McMillans then holding by deed from their father, Daniel McMillan, duly recorded, and he, by deed from 0. Graytracks, also duly recorded. If the jury find that the said E. Tingley, and those claiming under him, continued in possession until the commencement of this suit, December 17, 1844, a period of more than twenty-one years, the plaintiff cannot recover, being barred by the statute of limitation.</p> <p>5th. That, if the jury find that possession was taken by Oliver Graytracks prior to any contract with Parrish for the purchase of the land from him, or if McMillan purchased and went into possession without notice of such contract, and was in possession under such purchase from Graytracks, prior to and at the date of his contract,- to wit, November 2, 1817, then in such case, the said contract is not binding on said McMillan, unless said Parrish show a good and valid title to said lands.</p> <p>To the third point the court answer — That the continued possession under deeds of conveyance duly recorded, from September 3, 1817, to the commencement of the ejectment on the 17th December, 1844, does not protect the defendants under the statute of limitation, nor prevent the plaintiffs’ recovery in this suit.-</p> <p>To the fourth point the court answer — That if the jury believe that Elkanah Tingley and those claiming under him have continued in possession for more than twenty-one years before this ejectment was brought, having obtained deeds, as stated in this point, from the persons therein named; yet they are not entitled to hold the land in controversy, by virtue of twenty-one years’ adverse possession, so as to bar the plaintiff’s recovery by the statute of limitation. The sheriff’s deed to Roswell Wells, and record thereof, in Luzerne county Court -of Common Pleas, and the deed from Roswell Wells to Archippus Parrish, and record thereof in the Recorder’s office of Luzerne county, while Susquehanna was a part of Luzerne, were sufficient notice of the title of Archippus Parrish to affect the purchase of the right of Daniel McMillan; and those claiming under him cannot set up the statute of limitation, as a hostile possession, although they may have held the land by virtue of conveyances from Daniel McMillan more than twenty-one years before suit brought.</p> <p>To the fifth point the court answer — Whether Oliver Graytracks took possession of the land in controversy before or after any contract with Parrish, would not alter the title of Parrish to the land, when he made the contract with Daniel McMillan on the 2d November, 1817. The land was surveyed land when Graytracks took possession. He was, therefore, an intruder on the land of R. Wells, (if before the sale by Wells to Parrish,) and could gain no right as such, to such land, unless he should hold it adversely for twenty-one years. McMillan, by purchasing of Graytracks, could acquire no better right than Graytracks had. If McMillan purchased of Graytracks without any notice of a contract between Graytracks and Parrish, he could hold that contract in the same manner that Graytracks did; but if McMillan afterwards entered into a contract with Parrish, he would not be bound by it, unless Parrish could comply with his part of it. And if McMillan had offered a compliance on his part, then Parrish must have shown a good title to the lands; but as the defendants do not set up the contract as a defence, it cannot prevent the plaintiff’s recovery.</p> <p>The defendants excepted to the charge of the court. The jury found a verdict for plaintiff, whereupon the defendants sued out this writ and assigned the following errors:</p> <p>1. The court erred in overruling the objection by defendants’ counsel to the book purporting to be a “notice of taxes due on unseated lands, 1796, 1799, 1801,” and in permitting the same to go to the jury as evidence.</p> <p>2. The court erred in overruling the objection so made to the book purporting to be a day-book of entries of the- commissioners of Luzerne county, and in admitting the book.</p> <p>3. Also, in admitting the book endorsed, “Unseated Land Delinquents.”</p> <p>4. Also, in admitting the book of original sales of James Wheeler, sheriff, unseated lands for taxes, 1805, 1806, and 1807.</p> <p>5. Also, in admitting the certified copy of commissioners’ warrant to James Wheeler, sheriff, to sell, &c., dated September 4, 1805.</p> <p>6. Also, in admitting in evidence the deed of James Wheeler, sheriff of Luzerne county, to Russell Wells, dated August 29,1807.</p> <p>7. The court erred in charging the jury that the defendants cannot set up any irregularity in the assessment of taxes, or the sale of the land for them, to defeat the sheriff’s deed to R. Wells, of August 29, 1807, and in saying that said land was properly sold as unseated.</p> <p>8. The court erred in charging the jury that the written agreement of McMillan with Parrish, the reference to men, the holding of possession of the hundred and one acres, and the written recognition of title in A. Parrish by McMillan, would have prevented him from setting up the statute of limitations.</p> <p>' 9. They erred in charging the jury that the recording of A. Parrish’s title in the proper county, was sufficient to affect those who claimed under D. McMillan, with notice of that title, and they, as purchasers from him, cannot set up twenty-one years’ possession, under a title derived from him, as a bar to plaintiff’s recovery.</p> <p>10. The court erred in their answer to the third point submitted to them by defendant’s counsel.</p> <p>11. They also erred in their answer to the fourth point submitted to them by defendant’s counsel.</p> <p>12. Also, in their answer to the fifth point submitted by defendant’s counsel.</p>

In error from tbe Court of Common Pleas of Bradford county. July 12. This was a scire facias on a mortgage, in which Han- . nah Ackla,^ who survived Benjamin Ackla, was plaintiff, and John Ackla, the mortgagor, Edward Overton, Julius Holden, John Sweet, Adolphus Holden, and Israel Smith, terre-tenants, were defendants.

July 18. This was an action of partition, brought by Asa S. Dana, the plaintiff in error, against J ohn J aclcson.

In error from the Court of Common Pleas of Luzerne county. July 18. This was a proceeding commenced before two justices of tbe peace, to obtain possession of ninety-nine acres of land, purchased at sheriff’s sale, in which Thomas Connelly was plaintiff, and John It. Dean and Philip Bowman defendants.

<p>In error from the Common Pleas of Wyoming.</p> <p>July 16. This was an ejectment by Keeler against A. and W. Yantuyle, who pleaded not guilty. After an award for defendants and appeal, the court permitted the defendants to sever in their pleas, which was assigned for error.</p> <p>The question below turned on the title to two-thirds of the land claimed by A. Yantuyle. In 1841, Wood and another brought an action against one Simons and A. Yantuyle, and recovered a judgment against Simons alone. An execution issued against both the defendants, and the two-thirds of the land in question were seized, an inquisition waived by Simons alone, and the property sold by the sheriff, in 1843, to the plaintiff. It appeared that in 1832 and 1834, Simons had become the owner of these two-thirds by unrecorded conveyances. In 1836 Simons made a parol sale of the land to A. Vantuyle.</p> <p>It was a question in dispute whether this sale was fraudulent, and whether such a possession had been taken under the parol contract as was sufficient; both these points were determined for the defendants under the charge.</p> <p>The evidence, so far as it is necessary to state it with reference to the decision of this court, was as follows: A. Wheelock testified that A. Vantuyle, in the presence of the plaintiff, said he did not know why he was pressing him — since he had no land — did not own any thing; but this it appeared from the paper book was after the sheriff’s sale. A. R. Brink testified, that in 1841 plaintiff asked A. Vantuyle if he owned any land. He said he did not. Heister Keller testified, that when he posted the sheriff’s advertisement on the premises, A. Vantuyle had told him he did not own any land.</p> <p>The plaintiff asked instructions :</p> <p>5. That if the- jury believe that Alexander has declared, after going into possession of the land, and before the sale, in the presence of Milo Keeler, that he owned no land, his subsequent possession was no notice of title, and the plaintiff is entitled to recover.</p> <p>6. That the rule of law is, that, silence will postpone where silence is fraud, and that if the jury believe that Alexander knew of the sale, and gave no notice of his claim or title, he is concluded.</p> <p>The court (Jessup, P. J.) told the jury that mere declarations could not divest a title, but they were very strong evidence as to the question of fraud in the sale. To the points submitted, he answered,</p> <p>“ 5. That the possession of the defendant being the only notice of his title, if he gave Milo Keeler information that he did not own the land, the effect of his possession as to Milo Keeler would be removed, and he would, so far as this point is concerned, be entitled to recover. There is no evidence of any communication in relation to the ownership of the property, between Milo Keeler and Alexander Vantuyle, before the sale; except as contained in the doubtful testimony of Heister Keeler. If, however, as has already been said, the plaintiff was in anywise misled and induced to purchase by such declarations, the plaintiff ought to recover. Declarations made after the sale, could not, by any possibility, have induced the purchase, and therefore have no operation upon this part of the case.</p> <p>“ 6. The principle of law stated in this point is correct; but Alex-under Yantuyle being in tbe actual possession, was under no obligation to go to Wilkesbarre for the purpose of giving notice of his title, at the sheriff’s sale.”</p>

In error from the Court of Common Pleas of Wayne county. July 16. This was a scire facias upon a mortgage dated in 1814, executed by the defendant’s intestate to Poyntell, from whom it passed by divers mesne assignments to the plaintiff. This mortgage was given to secure purchase-money under a conveyance of even date by Poyntell to Spencer, the mortgagor.

<p>In error from the Common Pleas of Susquehanna county.</p> <p>July 16. Trespass, for erecting á wall on the -land of plaintiff, in which the question was the title to the locus in quo. On the trial before Jessup, P. J., it appeared that in 1821 the plaintiff, being the owner of a large tract, made a parol agreement to sell seventy-three acres thereof to one Dewees, and a certain ash tree was fixed upon as the point through which the line was to run. A survey, was accordingly made, stakes set, and a fence moved to the line. Dewees held possession for about five years, and sold to Carmalt, under whom Brand entered. In 1833, Blasdell (the plaintiff) executed a deed for the property to Brand, in which the boundary line in question was described “to remaining land of James Blasdell, thence by the same, east, one hundred and sixty perches, to the north-east corner ¡thereof in the line of land contracted for by Almon and Pichett.” It appeared that the fence set on the former division line did not correspond exactly with the courses and distances mentioned in the deed, and it was for building the wall beyond the fence, up to the line of the deed, that this action was brought.</p> <p>, His honor told the jury that, since the conveyance was long after the parol sale, and there was no reference to any natural boundaries or marks, the agreement must be considered as merged in the deed, and the lines there mentioned were to govern.</p>

<p>In error from the Court of Common Pleas of Wyoming county.</p> <p>July 17. This was an action of trespass brought by Samuel Wilkins, the defendant in error, who was plaintiff below, against William Stephens, the plaintiff in error, and defendant below, to recover damages from tho defendant for taking and selling certain personal property of tho plaintiffs. The action was originally commenced before a justice of the peace, and came into the Court of Common Pleas by appeal. The facts of the case, and question for decision here, are stated in the opinion of this court. The jury found for the plaintiffs, and assessed his damages at §24. The defendant thereupon sued out this writ of error.</p>

In error from the Common Pleas of Luzerne county. - July 17. In 1840, judgment was confessed by Slosson, on a bond conditioned to submit to reference, and give security to pay the award. - In 1840, on affidavit 'of compliance, with conditions, tho defendant was let into a defence. The plaintiff having declared on the bond, the defendant, in .1844, filed a plea of bankruptcy, •puis darrein continuance.

In error from the Common Pleas of Northumberland county. July 19. In 1813 Wilson made his will, devising his estate among his widow and children, and empowering his executors to sell his real estate'for payment of debts. His executors were Mary Wilson his widow, and James Boyd, both of whom joined in the probate in 1814.

In error from .the Common Pleas of Wyoming county. July 19. Ejectment. The plaintiff’s title was a warrant and survey on the ground in 1813, including part, of the land covered by the defendant’s title. He had- resided .on and cultivated the undisputed part of'the tract, and made sugar, and cut timber trees on the land in dispute, and paid taxes for-the whole, for 'more than twenty-one years. . 1 .

<p>An actual, but irregular judgment' entered on the records of a court without authority, can only be reversed oil a writ of error, or set aside in the court below, on motion; but only at the instance of the defendant. . .</p> <p>A stranger,' or third party, has a light to interfere with- a judgment, only, where it is collusive.</p>

<p>July 20. This was an appeal by Asa and Robert W. Packer, from the decree of the Court of Common Pleas of Luzerne county, confirming the report of the auditor appointed by the said court, to appropriate the money raised by a judicial sale of the real estate of David P. Richards.</p> <p>It appeared, that C. L. Harrington, for the use of C. Brisbane, obtained a judgment on the 10th of August, 1842, against one David P. Richards, who, at the time, and up to the death of his father, who died shortly before the 11 th day of January, 1846, was destitute of property, when he became entitled to a certain interest in a piece of land, under the will of his deceased father. On the 12th day of January, 1846, the plaintiff in the judgment as aforesaid, issued a writ of fi. fa. thereon, to April Term, 1846, under which, on the same day, the sheriff levied upon the interest of Richards, the defendant, in the piece of land devised to him as aforesaid; and which was sold by the sheriff on the 8th of August, 1846, under a vend. ex. to August Term, 1846. To April Term, 1846, the said plaintiff also issued a writ of soi. fa. to revive the original judgment, on which judgment was regularly entered, on the 10th of August, 1846.</p> <p>Asa and Robert W. Packer also obtained a judgment against David P. Richards, on suit brought to April Term, 1842, No. 42. On this judgment an amicable soi. fa. to revive the same, with confession of judgment by the defendant, for debt, interest, and costs, the amount of which was to be ascertained by the prothonotary, was issued to April Term, 1846, No. 89; and judgment thereon, in open court, on the 23d of January, 1846, which was before the sheriff’s sale of the defendant’s property, but after the levy under Brisbane’s fi. fa.</p> <p>These were the only judgments against the defendant, and on each the fund raised by the sale of his property was claimed. It was admitted before the auditor, that the property sold on the 8th of August, 1846, was the interest of David P. Richards, as heir-at-law of William Richards, his father, who died shortly before the 11th of January, 1846. It was insisted on the part of the Packers, that the judgment on their sci. fa. to April Term, 1846, No. 89, having been obtained before the revival of Brisbane’s judgment, was the first lien, and that they were entitled to the money. Brisbane claimed the money by virtue of the lien created by the levy of January 12, 1846, and also denied the right of the Packers to any part of the fund, on the ground that neither their original judgment of April Term, 1842, No. 42, nor the judgment on their sci. fa. to April Term, 1846, No. 89, were ascertained and entered on the records until after the sale of the property, which was proved to be the fact. The auditor appropriated the fund to the payment of the judgment of Brisbane.</p> <p>The court below (Conyngham, P. J.) were of opinion, that neither of the original judgments was a lien upon the after-acquired property of the defendant; but that Brisbane, by issuing his execution, levying on the interest in the land, and proceeding to sell the same as soon as the due course of law would permit, acquired and preserved a specific lien, which could not be disturbed by a confession of judgment afterwards to the Packers, and thereupon confirmed the report of the auditor, and decreed accordingly. From this decree, Asa and R. W. Packer appealed.</p>

<p>A judgment, and an execution thereon, have not, under our acts of Assembly, distinct and independent liens upon the same land.</p>

In error from the Common Pleas of Union. July 22. Sallada brought account-render against McFadden, and, it is said, declared against him as bailiff and receiver to the use of the plaintiff. Judgment, quod computet, having been recovered, auditors were appointed. From their report it appeared that McFadden, Sallada, Hall, and Bryan, were partners in the construction of the public works.

<p>Action lies by the late county commissioners, who wore the obligees in a bond by a collector of taxes, as security for the payment of the amount of his duplicate.</p> <p>A condition in such bond, that the collector shall pay into tire county treasury the amount of his duplicate, deducting commissions, is not greater than is imposed by law.</p> <p>A surety is liable, in such action, for the state taxes included in the duplicate.</p> <p>Interest is recoverable from a reasonable time after the collector became liable.</p> <p>Where a bond was given as a security by a collector of taxes, and his liability on the bond for the county rates has been barred by the statute of limitations, but that for state taxes remains, under a general plea of the statute, he and his sureties are liable for both county and stale taxes.</p>

<p>In error from the Common Pleas of Northumberland'county.</p> <p>July 23. Assumpsit for money had and received, and on a promissory note. The deposition of the plaintiff’s son had been taken under a commission to Ohio. Subsequently the plaintiff died, and his administrator was substituted. On the trial the substituted plaintiff offered the deposition, having first shown a release to the other children of the intestate of all the witness’s interest in the estate administered to in Pennsylvania, and to the property which might be acquired in this suit. This was rejected by the court, Anthony, P. J.</p>

<p>In error from the Common Pleas of Lycoming county.</p> <p>July 26. This was a summary proceeding by a purchaser at sheriff’s sale to obtain possession, which was removed into the Com mon Pleas.</p> <p>. On the trial, before Anthony, P. J., it appeared that on thi 16th of May, 1886, one -Collins, by articles, agreed to sell the property in question to Samuel Wilhelm, in trust, for the children and legal heirs of John Wilhelm. The terms were $800 down, and. the judgment note of Samuel for $200 on delivery of the deed. On the 11th February, 1887, a deed was executed pursuant to the articles, and a judgment note given by Samuel for the residue of the purchase-money, dated on the 18th February, on which judgment was entered on the 25th. A sei. fa. then issued with notice to John Wilhelm, as terre-tenant, on which judgment was entered, under which the sale to the plaintiff was made by the sheriff. It was proved that John Wilhelm advanced the money paid by Samuel; and it was further proved that the children of John, who were minors at the time, took no part in the purchase. But they, or some of them, resided on the land with their father, and it was against those in possession this proceeding was commenced. Samuel stated that it was the understanding the land should be bound for the note, but that was not. with John, the father, nor were his children present at the time.</p> <p>His honour was of opinion that the defendants being cestuis que trust, not having paid any part of the purchase-money, had no equity to set up against a purchaser at a sheriff’s sale under a judgment for the purchasermoney.</p>

In error from the Common Pleas of Lycoming county. July 26. This was an action of debt on two written contracts, The defendant pleaded non est factum, non assumpsit, statute of limitations and payment, &e. The case was tried at a special court, held by Woodward, P. J., at Williamsport. At the trial, the plaintiff called George F. Boal to prove the signatures of the parties to the obligation on which the action was founded.

<p>In error from the Common Pleas of Northumberland county.</p> <p>July 27. This was an action on the case sur deceit, brought by William H. Browne and Co., against William R. Smith and Alexander Jordan, executors of John A. Boyd, deceased, to recover damages for false and fraudulent representations made by the defendants’ testator, as to the credit of a third person.</p> <p>It was alleged in substance, in the declaration, that John A, Boyd, falsely and fraudulently recommended one John B. Miller as a person worthy of being trusted for merchandise, and thereby induced the plaintiffs,to sell him goods on credit to the amount of $389; when at the time of such representations, the said Miller was not worthy of credit; that Boyd knew his representations to be false, and that Miller was at that time greatly indebted to him and various other persons, and in bad circumstances; that no part of the goods sold by plaintiffs had been paid for, and that the said John B. Miller was, and still is, wholly unable to pay for the same. It appeared from the evidence given on the trial, that in 1838, John A. Boyd, the defendant’s testator, was the owner of a store in the town of Northumberland, and that he induced one John B. Miller to purchase the same, through promises of a long credit, and assistance in selling off the old stock and in replenishing the same from time to time. At the time of this purchase, Miller was not considered a man of any property. Boyd gave Miller ten years to pay for the old stock purchased from him, promised to keep him afloat and to show him how to pay for it. After taking an inventory, by himself, (refusing to permit Miller to be present,) of the old stock, Boyd went to Philadelphia, alone, purchased goods to the amount of $950, which were received, unpacked, and placed upon the shelves. He then took in payment of his old stock of goods, Miller’s note for $500, and his judgment bond for $2000, payable in five yearly instalments, with interest from October '3, 1838. The next spring, $700 was got out of bank, and about $300 collected, when Boyd took Miller with him to Philadelphia. They wrent to those houses of whom Boyd had bought goods and made bills, on the occasion of his former visit to the city, paid off those bills, and Boyd recommended Miller to those merchants. To Browne Co., the plaintiffs, Boyd represented Miller as a sober, industrious man, worthy of credit and able to pay, and also said, that he had sold Miller his stock of goods, that Miller wanted assistance, was not a judge of goods, and that he, Boyd, had come down with him to recommend him. "When they got home and the goods arrived, Boyd marked the goods as he did on the former and every subsequent occasion; and the goods were renewed from time to time, by purchases in Philadelphia made in the same way. Boyd always went to the city with Miller to purchase goods. The last purchase was in the fall of 1841.</p> <p>It also appeared, that at this time, Miller, besides his indebtedness to Boyd, and Browne & Co., the plaintiffs, was also indebted to two other mercantile houses in Philadelphia, for goods purchased of them, to a considerable amount, and also to the Bank of Northumberland, in the sum of $1500. It appeared by the testimony of all the witnesses examined, and who knew Miller and lived in the same town with him, that he was not considered a responsible man; that although he owned two small houses in Northumberland, worth about $800, he could not have paid for his first bill of goods; that he owned these houses when he purchased Boyd’s stock, and that from the business relations which subsisted from that time, between Boyd and Miller, the former must -have been perfectly acquainted with the circumstances of the latter; that Boyd was frequently at the store every week, went behind the counter, examined the books, posted them up, and appeared to have the management of Miller’s business; that every time they went to the city, money was borrowed to pay off the old bills; and that, in 1841, Miller’s indebtedness was much more than he had the means to pay. In November, 1842, Boyd wrote to Browne $ Co., the plaintiffs, that Miller was abundantly able and willing to pay all his debts. On the 12th of July, 1848, he entered up his judgment for $2000, on which there was then due $2570. On the 20th of July, 1843, it was testified, Miller wanted to confess judgment to Strawbridge & Borden, one of his Philadelphia creditors, but Boyd would not permit him, and got Mr. Greenough to enter an appearance. On the 2d of September, 1843, judgment was entered in favour of the Northumberland Bank, for $950. Boyd was the endorser of the note on tohiah this judgment was entered. On the 16th of September, 1843, Miller confessed judgment in favour of Strawbridge & Borden for $219. Previously to this, to wit: in June, 1842, Miller confessed a judgment to Brautigum & Waples, merchants in Philadelphia, for $95, and when Boyd was informed of this, he said it was talcing too much of him, Boyd. On the 27th of September, 1843, Miller made an assignment to Boyd, of all his property, real, personal, and mixed, for the benefit of his creditors. His real and personal estate, including notes, book-accounts, judgments on the</p> <p>dockets of justices, was appraised at $4311 90</p> <p>The real estate was valued at $1350</p> <p>The goods at........ 450 1800 00</p> <p>Leaving........ $2511 90</p> <p>in judgments, notes, and book-accounts. John A. Boyd, the assignee, sold the real estate under judicial process, for $1185, and became the purchaser, himself. He lived until 1845; but no account was ever given or rendered of the proceeds of the personal property, including the judgments, notes, book-accounts, &c. It did not appear that the plaintiffs, or the other creditors in Philadelphia and Northumberland county, were ever informed by Boyd of Miller’s indebtedness to him in the sum of $2500, for his old stock of goods.</p> <p>At the trial, before Anthony, P. J., the plaintiffs offered John B. Miller, the purchaser of the goods, and their debtor, as a witness. The defendant objected to him on the ground of interest, but the court overruled the objection, and sealed defendant’s first bill of exception. John B.. Miller was then sworn and examined as a witness. In the progress of the examination of the witness, the plaintiffs offered to prove by him, that “ whilst John A. Boyd and witness were in 'the city purchasing the last bill of goods, Boyd stated to witness, that he, Boyd, had made witness’s credit so good in the city, that he could purchase $10,000 worth of goods without a cent.” The defendants objected, but the court overruled the objection and sealed defendant’s second bill. The witness then testified, that after they had made their purchases, a few gentlemen came to the Red Lion, where he and Boyd lodged, and left their cards of merchandise with him, requesting him to come round and look at them, and stating that they would sell to him as reasonably as any one else, at six months’ credit. I said to Boyd, (after the gentlemén had left,) I do not know these men; how comes it that they know me ? Why do they want to sell me their goods, on these terms and credit ? Boyd said, they know you, through me. I was round to see them the other day, and they ivant me to bring you, to see them. I have made your credit good for a large amount, for $10,000, — and then laughed heartily. On the cross-examination of witness, the defendant proposed to ask him, whether at the time he pmchased the stock of goods of Boyd, or at any time after-wards, it was his intention to defraud the plaintiffs or any other creditor who trusted him. The plaintiffs objected to the question, because intention was immaterial, &e. The court sustained the objection, and sealed the defendant’s third bill. After the witness had stated, that Boyd promised to assist him in paying for his, Boyd’s, stock of goods, and advised him, as he was a tailor, to make np some of the goods into clothing, by which he would make money; the defendants proposed to ask him as follows: « What passed between you and Boyd, when you made the purchase of his stock, as to the mode of making money out of that purchase, by making up clothes or by any other means?” This was objected to by the plaintiffs, but the court overruled the objection and sealed a bill of exception. The witness then stated in answer to the question, “ that there were a great many moth-eaten cloths, some had twenty holes, many calicoes and nankeens damaged. I found fault with them, said they were not saleable. Boyd said, you have hands, you can cut out and make clothes; do this, and you will make money, and I will keep you afloat for ten years and assist you, and go to Philadelphia for you, and so he did.” The defendant then proposed to ask witness the following question: “ Did you believe, when you bought the last bill of goods in Philadelphia in October, 1841, that you were able to pay all your debts, and that your property, with the debts then due to you, were abundantly sufficient for that purpose ?” Objected to and objection sustained. This was defendant’s fourth bill. The defendant then proposed to ask witness the following question: “ Did not Mr. Greenough say to you at the time you called on him, through the urgent request of Boyd, and gave him a statement of the occurrences which had taken place from the time you purchased Boyd’s stock, in connection with your circumstances and situation from that time to the present, that if the facts were as you stated them, plaintiffs had no claim against Boyd ? Objected to, and objection sustained. This was defendant’s fifth bill. After the evidence was closed, the defendant requested the court to instruct the jury as follows:—</p> <p>1. That if they believe John A. Boyd recommended John B. Miller to the plaintiffs as a person worthy of credit, and able to pay; yet if he did so with a full and perfect belief that the fact was as he represented, (although afterwards it turned out otherwise,) such mistake was not a fraud; and in that case Boyd is not liable in this action.</p> <p>2. That deceit or fraud is the foundation of this action. And if John A. Boyd stated nothing but what he believed to be true, although his statement might be untrue in fact, yet if he had no intention to deceive, and was in an unintentional error himself, he is not liable in this action.</p> <p>The court (Anthony, P. J.) concluded their charge as follows:</p> <p>“ The only questions in this case are, whether Boyd knowingly misrepresented the situation and standing of Miller to plaintiff, and whether they were induced, by his misrepresentations, to trust Miller with goods, and in consequence thereof trusted a man who was, and is, unable to pay for those goods. If you believe Boyd did so, his estate is liable. ‘Honesty is always the best policy.’ If a man, in whom confidence is placed, suppress the truth when,he recommends his friend to merchants, and that suppression of truth induces them to trust his friend, and causes loss and damage to those merchants, he is equally liable to pay the damage as if he had suggested a positive falsehood.</p> <p>“This cause is one of importance as regards principles; but the facts are not seriously controverted; and I cannot perceive that it is one of much difficulty. The jury will, however, decide the facts, and give such verdict as their conscience will approve. If you find for the plaintiff, your verdict should be for the amount of the Miller note of $389 94 and interest; deducting the $23 35 endorsed as paid thereon. But if you find for the defendant, your verdict will be generally for the defendant.” Defendants excepted to the charge.</p> <p>Answer of the court to defendant’s points:—</p> <p>1st point. That if John A. Boyd recommended John B. Miller to the plaintiffs, as worthy of credit and able to pay, and the jury are satisfied that Boyd fully and perfectly believed that he was stating the whole truth to the plaintiff about the credit and ability to pay, of John B. Miller; then Boyd’s mistake would not be such a fraud as would make him liable in 'this action, if it turned out afterwards that he was mistaken. But if Boyd knowingly suppressed the truth from, or suggested a falsehood to, the plaintjffs, in relation to the credit and ability of John B. Miller to pay, and such suppression of truth or suggestion of falsehood induced the plaintiffs to trust Miller for goods upon Boyd’s recommendation, and it turned out that Miller was unable to pay for them, then the plaintiff can recover in this action.</p> <p>2d point. That deceit or fraud is the foundation of this action. John A. Boyd, in recommending John B. Miller, was bound to state the truth. If he was unintentionally mistaken in what he said to the plaintiff about Miller’s credit and ability to pay; if he believed at the time that he was stating the whole truth to them, an unintentional error would not make him liable in this action. But if Boyd knew that he was not telling the plaintiffs the whole truth; if he suppressed the facts, that he had not received one dollar from Miller when he sold him the store-goods, and that he held Miller’s note for $500, and his judgment bond for $2000, then such suppression of the truth would make Boyd liable; if, by such suppression of the truth, the plaintiffs were induced, by the recommendation of Boyd, to trust Miller for goods.</p> <p>Defendants excepted to the charge; and, after verdict, sued out this writ of error, and assigned the following errors here:</p> <p>1. The court erred in their decisions on the first, second, third, fourth, and fifth bills of exception to evidence.</p> <p>2. In their answers to defendants’ points.</p> <p>3. In telling the jury that plaintiff’s recovery in this action would not discharge John B. Miller.</p>

<p>Where, in an action of trespass for killing a dog, the defendant justified the killing, and in support thereof gave in evidence, that the animal was vicious and ferocious; that this fact was known to his owner, the plaintiff, and that at the time he was killed, he was within the paled enclosure of the defendant, and in tire act of repeating the commission of depredations on his property; held, that it was error in the court below, to take these facts from the jury, and to instruct them that they must find damages for the plaintiff: although the amount of the damages was submitted, under all the evidence in the ease, to the jury.</p> <p>If one cannot otherwise protect and preserve his property from the depredations of a dog, he will be justified in killing him, when discovered in the act on his grounds and within his enclosure.</p>

<p>In error from the Common Pleas of Union county.</p> <p>July 28. In the court below, the action was debt, brought by William Cameron against John Paul, one of the parties to a sealed note, of which the following is a copy:</p> <p>« One year after date, we, or either of us, promise to pay William Cameron, or order, two hundred dollars with interest, without defalcation, for value received.</p> <p>«Witness my hand and seals, this 18th day of April, A. u. 1842.</p> <p>$200.</p> <p>A. S. Lewis, [l. s.]</p> <p>John Paul, [l. s.]”</p> <p>At the trial, before Wilson, P. J., the plaintiff, after giving in, evidence the sealed note, rested.</p> <p>The defendant then called Alexander S. Lewis, one of the parties to the sealed note, and offered him as a witness, to prove a partial payment of the said instrument, in coal and lumber. The plaintiff objected to the competency of the witness, on the ground of interest, and also to the proposed subject-matter of his testimony. The defendant’s counsel then tendered a release executed by the defendant to A. S. Lewis, the proposed witness, releasing him from all liability, &c. It was noted on the paper book that Lewis did not say he would accept the release. The court thereupon overruled the objections, and sealed plaintiff1’s first and only bill of exceptions. The admission of this witness by the court, to prove a partial payment of the sealed note, was the error assigned here.</p>

<p>A. having recovered a judgment against B. and assigned it to C., is incompetent as a witness for C., the plaintiff, on a feigned issue to try the validity of another judgment against B., to which issue C., as assignee of A., was in reality a party (plaintiff).</p>

<p>In error from the Common Pleas of Columbia county.</p> <p>July 29. This was an action on a promissory note, originally instituted before a justice of the peace, in which William Edgar, for the use of Elijah G-. Rickets and Alexander B. Stewart, trading under the firm of Rickets and Stewart, were plaintiffs, and Hiram R. Kline was defendant. The defendant appealed from the judgment of the justice, and filed a transcript thereof in the Court of Common Pleas.</p> <p>The note on which suit was brought, was in the following words: — ■</p> <p>“ September 20,1848. Eighteen months after date, I promise to pay unto William Edgar $82 50, to be paid in grain of any kind, delivered at Kline’s mill, at the Bloomsburg price; and the said Edgar is to take the grain prior to the date hereof, if notified of its being ready, for value received.</p> <p>(Signed)</p> <p>“Hiram R. Kline.”</p> <p>The^ circumstances, under which the note was given, appeared from the evidence at the trial to be, substantially, the following : In 1841, William Edgar took a lease of a farm from one Daniel McHenry, for four years, from 1st of April, 1842, at $85 a year. After moving on the farm, and living on it a year, or eight or nine months, Edgar rented it for the remainder of his term to one Conner, and left it. After Conner had been on the farm for two or three weeks, Edgar induced him to throw up his lease. After this was done, Edgar told Conner that he was going to sell the remainder of his term, under his lease from McHenry, to Hiram R. Kline, and that lie would sldn him; that there were judgments to the amount of several hundred dollars entered up against the farm, and that he believed it would be sold; and that he had paid McHenry two years’ rent in advance, and that he would have his money out of it somehow. On the 20th of September, 1848, an article of agreement between William Edgar and Hiram R. Kline, under which Edgar leased the farm for the remainder of his term to Kline, was drawn and executed. After the lease was executed and delivered to the scrivener, who drew it up and was to hold it, Edgar said to Kline, “ If you will give me your notes and five dollars more than the article calls for, I will talee it in grain, at Kline's mill, at the Bloom prices ;” which proposition Kline, after some hesitation, agreed to accept. The notes, of which the one in suit was one, were then drawn up and signed by Kline. The notes were given for the consideration of the article. When Klino had signed the notes, he held them up in his hand, and said, “ Edgar, I am to hold the land for three crops, will you bade me in it.” JEdgar answered that he would. Edgar then took up the article and destroyed it; but whether with the assent of Kline, did not appear. Under the article, Kline was to hold the land for the remainder of the term. Edgar said he had paid McHenry, or nearly so, for the whole four years.'</p> <p>A few months after Kline entered under his contract with Edgar, the farm was sold by the sheriff under judicial process, the sheriff’s deed acknowledged to the purchaser in April, 1844, and Kline dispossessed in July, 3844. When Kline informed Edgar that he was dispossessed, he asked him if he would back him on the notes he had given him; to which Edgar replied that he would not.</p> <p>The notes given by Kline to Edgar, of which the note in suit was one, were for the rent in advance, to wit: from September, 1843, up to April, 1846, and 'amounted to nearly $300 — part of which he had paid. He was, therefore, to have had possession of the land, under his contract with Edgar, for nearly three years, but was dispossessed in ten months after taking possession. A few days after the note in suit was given by Kline, Edgar handed it to Rickets and Stewart, one of whom presented it to Kline, who said it was a good note, and he would pay it at maturity. There was some contradictory evidence, as to whether Rickets and Stewart took the note in consequence of Kline’s declaration that it was a good note, and would be paid at maturity, or whether this declaration were made after they had taken it. It was admitted on the trial by plaintiff,.that the consideration for which.the note was -given had failed; or that Kline had received no consideration for the note. It also appeared, that, in the spring of 1845, Rickets called at Kline’s mill and demanded of Kline the grain in payment of the note. Kline told him he had not the grain, and would not pay it. It also appeared, that the defence of Kline before the justice was, that he had not received any consideration for the note; that it. was given for rent in advance, and that he was turned out of possession before his term was out. At the trial in the court below, no attempt was made by the' plaintiffs to show that they had paid, or gave value, to Edgar for the note, although notified that they were required to do so.</p> <p>The court below, (Anthony, E. J.,) after referring to the facts, and stating the general rules of law as to notes negotiable, negotiated before due, and notes not negotiable equitably assigned, &c., charged the jury, in conclusion, as follows:—</p> <p>“ But we apprehend that a different rule applies to paper not negotiable; the assignee takes it subject to all the'equities, between the original parties to the instrument, and when he is notified, as in the present case, that the defendant received and the original holder gave no consideration for the note, the holder should, in order to place himself in a better position than the assignor, prove that he gave a valuable consideration for it; otherwise the defendant should be permitted to consider William Edgar as the real plaintiff, although the suit is brought for the use of Rickets and Stewart. Chitty says, in his treatise on Bills, ‘ In the case of bills payable to: bearer, that if the bearer bring the action, he ought to entitle himself to it on a valuable consideration, and strictly to prove his coming by it bona fide, and in any other case where there is reason to expect that a defence will he attempted. On the want of consideration, the plaintiff should be prepared, on the trial, to prove what he gave for the bill, &c.’ In a note to the above, it is now held, that there is no difference between a failure and want of consideration, that each may be set up as a defence, not only between the original parties, but also against a holder claiming by endorsement after the note has become due, or taking it with a knowledge of fraud or other equitable circumstances entitling the maker to avail himself of the defence.</p> <p>“ If negotiable paper be subject to the above proof as to consideration, how much more necessary is it, when a note is neither payable to ‘order’ or ‘bearer?’ The suit must be brought in the name of the payee; he is the legal plaintiff on record: it need not be shown that any transfer was made to the cestui que use; they may in fact suggest on the docket that it is for their use, without having paid one cent for the note; they may be merely the agents to collect the money and pay it over to the legal plaintiff. Can this mere suggestion prevent the -defendant from proving that he received no consideration for the note, because at the time it was made, or shortly afterwards, he admitted it was a valid note and would be paid at maturity ? There is no doubt, as between Edgar and Kline, the consideration utterly failed. Edgar admitted that he had cheated him, ‘ had skinned him.’ We think that in order to enable Rickets and Stewart to recover, they should prove that they not only took the note in consequence of Kline’s declaration that it was good, and would be paid when due, but that they also p'aid a good or valuable consideration for it to William Edgar, by reason of Kline’s promise or declaration. As they have not shown that they did pay any thing for the note, and as Kline has proved that it was without consideration, we therefore direct the jury to find a verdict for the defendant.”</p> <p>The plaintiffs excepted to the charge; the jury found for the defendant; and the plaintiffs took this writ of error, and assigned as error here—</p> <p>1. The court erred in taking the cause from the jury, by directing the jury to find a verdict for the defendant.</p> <p>2. In saying, “ that when he (the plaintiff) is notified, as in the present case, that the defendant received, and the original holder gave no consideration for the noté, the holder should, in order to place himself in a better position than the assignor, prove that he gave a valuable consideration for it, otherwise the defendant should be permitted to consider William Edgar as the real plaintiff, although the suit is brought for the use of Rickets and Stewart.”</p> <p>3. In saying, “We think that in order to enable Rickets and Stewart to recover, they should prove that they not only took the note in consequence of Kline’s declaration, that it was good and would be paid when due, but that they also paid a good or valuable consideration for it to William Edgar, by reason of Kline’s promise or declaration.”</p>

<p>July 30. This was an appeal by a wife, from a sentence of divorce a vinculo matrimonii, by the Common Pleas of Columbia county. The libel charged adultery, with the usual averments of time and circumstances; to maintain which, the libellant adduced the following depositions taken on commission :</p> <p>Clarina H. Erick proved the appellant’s marriage with the appellee, in May, 1840.</p> <p>Samuel Yorks. — I am acquainted with James H. Matchin, and Christiann Matchin, his wife. Dr. Yeoman, Michael Grier, and myself, went to Matchin’s house in the middle of February, 1846, .and found Mrs. Matchin alone with her children. Dr. Yeoman stated to Mrs. Matchin that there was a report that she had had criminal connection with Benjamin Williams. She denied it, and began to cry and went out. In a few minutes she returned again. Then Dr. Yeoman asked her if she wished any of us to leave the room. She said, that Mr. Yorks'and Mr. Grier might walk out, and we did walk out. After a few minutes, Dr. Yeoman called us, and we returned to the room she was in. Then Dr. Yeoman said-to her, 11 want you to say before these men, what you said to me.’ He asked her if she had had criminal connection with Benjamin Williams, and she said, Yes. Dr. Yeoman told her it was reported she had had unlawful intercourse with Benjamin Williams in Williams’s barn, and she admitted it was true. She confessed she was guilty of the crime..</p> <p>' Michael 0. Grier. — In the winter of 1846, I believe about the middle of February, with Dr. Yeoman and Mr. Yorks, I visited Mrs. Matchin, — the three of us composing the session of the church, to which Mr. and Mrs. Matchin belonged. She was told by Dr. Yeoman, that there was a report that she had had criminal connection with Benjamin Williams. She at first denied it, but after the time and place, and other particulars were stated to her, she, without hesitation, deliberately and fully confessed her guilt in that matter, and also admitted that she had had criminal connection with Benjamin Williams in the barn of Williams, at the time stated. In the evening of the same day, I met Benjamin Williams in Mr. Cooper’s office, and in .the presence of Mr. Cooper, Mr. Comly and myself, Benjamin Williams fully confessed that he had had criminal connection with Christiann, the wife of James II. Matchin, in Williams’s barn, at the time Mr. Cooper charged him with having-had such connection, and at the time Mrs. Matchin confessed she had had criminal connection with him. Williams, also, confessed that he had repeatedly had criminal connection with her, and declined stating how long such intercourse had existed between them. I do not remember the day he, Williams,'was charged with having had criminal connection with Mrs. Matchin, but it was a few weeks before the time of confession.</p> <p>Mary Lunger. — In January, 1846, on a Tuesday evening, Mrs. Christiann Matchin came into our house as usual. She looked at the watch when she came in and when she went out. She said she would have to return home, her child would be fretting, and I went-to the window to look which way she went. She went up the alloy towards Williams’s barn; which is not in the direction of her house. It was about seven o’clock in the evening. She stepped on alone the length of our lot, and then stopped and stood there until Benjamin WilEarns passed me and overtook her, and they went on together out of my sight, in the direction of Williams’s barn. I stood at my gate when Williams passed me. I saw John C. Grier coming from the direction of Williams’s barn shortly after Williams and Mrs. Mat-chin went up. I did not see either Williams or Mrs. Matchin return that evening. I reside in Danville, and Williams’s barn is on a lot adjoining ours.</p> <p>John-0. Grier. — On the evening of January 27, 1846, James H. Matchin called on me, and told me he suspected his wife’s fidelity, and that she had an appointment that night to meet Benjamin Williams at his (Williams’s) stable, and asked me to go there at that hour, and watch them. At first, I refused, telling him it was a delicate matter; but on his further urging and pleading with me, I consented to go,' if some other person went with me. He told me that Archibald Yorhees would go with me. At 6|- o’clock that evening, Yorhees and myself left my store, prepared with matches- and lanterns, and proceeded to the stable used by A. G-. Yorhees as a lumber house, opposite Williams’s barn. About ten minutes before seven o’clock, Benjamin Williams came and opened'his stable door, which leads into tho alley, and stepped into the alley, holding the door partly open in his hand for a moment or two, and looked up and down the alley. He then' closed the stable doors and walked down the alley to the street opposite Matchin’s house, and came back to his stable door again, and stood by it, when a dog commenced barking at him. Ho picked u¡o something and threw it at- the dog, 'and chased him away. Then he went down the alley again, and stood in the street opposite Matchin’s house. While he was standing there, Mrs. Christiann Matchin came up tho alley to Williams’s stable door, and stopped there, and looked up and down the alloy for a few minutes, and then went down the alley to the corner of Mr. Lunger’s stable, where she was met by Benjamin Williams, who came up the alley from towards Matchin’s house. They joined arms, and went to Williams’s stable door, at which point they were met by some one coming down the alley whom I did not recognise. They then went up the alley. Mr. Yorhees followed them up the alley, and soon returned. We did not see Williams and Mrs. Matchin again that evening.</p> <p>T-he deposition of Archibald G-. Yorhees was to the same effect as that of the preceding deponent.</p> <p>, Lydia' Matchin. — I am acquainted with James'H. Matchin and Christiann Matchin, his wife. I Eved with them on the 27th day of January, 1846, and some time before that. On the morning of that day, Mis. Matchin told me that she had an appointment to meet Benjamin Williams at Williams’s barn. -I told this to James H. Matchin the same morning. She left the house that evening about seven o’clock, and returned home about eight o’clock in the evening. When she returned, her dress was disordered, and there was straw on it, and I picked some of it off. The same evening .after her return, she told me she met Benjamin Williams in the alley near Williams’s barn. They became alarmed. They went up the alley and passed the Episcopal church, and went through the door of Williams’s wood-house. She remained there, and Williams went on into the garden. Then he whistled for her and she joined him, and they went together into Williams’s barn, and there Williams had carnal connection with her. The same evening I told these confessions to James H. Matchin. •*</p> <p>John Cooper, Esq., sworn. — On the 16th day of February last, Mr. Comly, Michael C. Grier, Benjamin Williams, and myself, met in the afternoon, in my office, and I then and there accused Benjamin Williams of having committed adultery .with Christiann Mat-chin. ITe said it was false. Then Mr. Comly stated to him, that Christiann Matchin had confessed her guilt- to Michael C. Grier, Dr. Yeoman, and Samuel Yorks, and stated to him that on the 27th day of January last, at seven o’clock in the evening of that day, he had met Christiann Matchin, by appointment, and that some one coming down .the alley had interrupted them, and that they had gone round by the Episcopal church, until they had' arrived at the door of Williams’s wood-house; that Williams went into the garden, leaving Mrs. Matchin in the wood-house. He then whistled for her to come to him; that she joined him in the garden, and went thence into the barn, and there Williams had carnal connection of her body; and told him he had been watched by John C. Grier and Archibald G. Yorhees.- I asked him then if. what Mr. Comly said was true or not true. He answered, you know all about it, and there is no use of denying it. He afterwards admitted that he had had carnal connection with her, not only on the night of the 27th of January last, but several times before, but how long this connection had subsisted, he declined to answer. The next morning, Benjamin Williams absconded from Danville, and has not returned since,</p> <p>The appellant gave no evidence, but appealed from the sentence of divorce to this court.</p>

<p>In error from the Common Pleas of Jefferson county.</p> <p>Oct. 22, 1846. This was an action of ejectment to recover five hundred and eighty-one aeres and twenty-two perches of land, in which, William Yastbinder, Andrew Yastbinder, Joseph Clements, John Wyncoop, William Steel, and Octavius Pickering, the plaintiffs in error, were defendants, and Peter Wager, the defendant in error, was plaintiff.</p> <p>The facts of the case, so far as they are necessary to elucidate the points ruled here, are sufficiently stated in the opinion of this court.</p> <p>On the trial in the court below, before McCalmont, P. J., the plaintiff, for the purpose of showing that the survey of Pickering and company, under whom the defendants claimed, was void, offered in evidence a diagram of the' districts of the deputy surveyors, in the new districts. This was objected to by the defendants, but admitted by the court. This was defendant’s first lili. The paper book disclosed nothing more than what is stated above, in relation to the diagram offered in evidence.</p> <p>The plaintiff then offered in evidence the certificate of the appointment of James Johnston, and others, as deputy surveyors. Objected to; and objection overruled by the court. This was defendant’s second bill. The defendants offered in evidence certain tax books, and receipts for the payment of taxes on the lands in controversy, in the name of Pickering & Co., from the year 1810 until the year 1820. The plaintiff objected, and the court rejected the evidence offered. This was defendant’s third bill. At the close of the evidence, each party propounded a number of points, on which, they requested the court to instruct the jury.</p> <p>The answers of the court, however, to the second point of the plaintiff, and the fourth point of the defendant, each of which involve the same question, were only noticed by this court, and are stated in the opinion. This writ of error was sued out by the defendants below, who assigned for error, amongst others, the answers of the court to the second point of the plaintiff, and to the fourth point of the defendants, and also the admission and rejection of evidence as contained in defendant’s three bills of exception.</p>

In error from the District Court of Allegheny county. Sept. 6. Ejectment. The defendant offered a sealed agreement of the plaintiff’s; and, for the purpose of giving evidence of the admissions of the execution, proved that he knew when Hendricks, the subscribing witness, left the county; and that he had gone to Venango or Clarion. Defendant had not gone in search of him, but had taken out a subpoena. The genuineness of the instrument had been admitted before the arbitrators.

<p>After judgment, qiiod parlilw fiat, in the Common Pleas, in a suit which was erroneous by reason that the widow was a party, the inquest and return followed the directions of the act directing proceedings in the Orphans’ Court. One of the heirs accepting at the valuation, entered into a recognisance to pay the interest on the widow’s third to her for life, and the principal and residue of the valuation to the heirs, &c. The proceedings are not void, and the recognisance is valid. And judgment was enterad for the penalty, with directions to pay the money into the .court in wliich the action was brought, to be paid into the Orphans’ Coiprt to be distributed — the interest to the husband for life, and the principal invested for the children of the deceased heir.</p> <p>On a special verdict, the court of error will enter the right judgment if that given below is erroneous.</p> <p>Where land of a feme covert has been converted by proceedings in partition in the common law courts, resulting in an acceptance at a valuation, and she dies before the husband has recovered her share, secured by the recognisance, the court, as a Court of Equity, will preserve the rights of .her heirs and husband to the money, giving them the same interests they would have had if .the partition had been made in the Orphans’ Court.</p> <p>It seems that the addition of administrator to plaintiif’s name may be treated as surplusage, where he is entitled in his own right.</p>

<p>Where the Common. Pleas refused to appoint auditors on a petition by creditors against the representatives of a trustee of an insolvent, alleging the receipt of moneys, no appeal lies, the decree not being definitive.</p> <p>The proceedings in such cases should be according to the directions of the act of Assembly by bill, a petition, answer, &c.</p>

In error from the District Court of Allegheny. Sept. 7. This was an ejectment for land, to which the plaintiff showed title by patent to his ancestor in 1785. The ’defendant rested on the statute of limitations; and the question was whether there had been continuity of adverse possession. The ■ action was brought in 1843. The defendant showed that he alone, or Duval with him, entered in 1819, and put up a house and made some improvements.

In error from the District Court of Allegheny county. Sept. 8. This was an action against the administrators of Livingston. The declaration recited the indebtedness of one Dubbs to the plaintiff, on a noté — the employment of Livingston an attorney, for certain hire to collect the same — his promise in consideration of the premises to commence and carry on a suit therefore in a proper manner.

<p>In error from the District Court of Allegheny county.</p> <p>Sept. 9. Assumpsit for not receiving goods agreed to be purchased. By a written agreement, McClenkan was to take from one to four hundred barrels of flour, McMillan giving notice on delivery of the last parcel whether he would deliver the residue.</p> <p>A witness said, on Friday McMillan delivered one hundred and thirty barrels; on the Wednesday following he called to say the rest were ready. McClenkan said, “I told you on Monday I would not take them:” McMillan replied, «'I told you on Friday I would have them here this week.”</p> <p>The court left this to the jury as evidence that notice had been given at the delivery of the first parcel, pursuant to the contract.</p>

Isr error from the District Court of Allegheny county. Sept. 9. The plaintiffs in this suit were two of the heirs of John Ilays, who died without issue, having, in 1845, been found lunatic for forty years past, with lucid intervals. The defendants were two of his brothers, and claimed under a deed in 1832. Having given evidence of capacity, they called the subscribing witnesses. After the evidence detailed by the court here, the deed was offered and rejected.

In error from the District Court of Allegheny county. Sept. 9, 10. Ejectment by Mary Walker, a lunatic, by her committee. The plaintiffs showed a deed from William Rogers, the defendant, and another, assignees of Isaac Walker, to Mary Walker, dated April 1,1837, and, for the purpose of showing title merely, an inquisition in 1845, finding her a lunatic.

Sept. 11. On the 6th April, defendant appealed from an award of arbitrators. Notice to pay the costs was served October 81st. In December Term, the motion was set down on the argument list. At the same time the cause was put upon the trial list. On the 2d February, 1847, the costs were paid, and the motion to quash discharged. On the same day the cause was reached on the trial list, and nonsuited.

<p>In error from the District Court of Allegheny county.</p> <p>Sept. 13. The action was originally brought by John Knox, James Boggs, and John Knox, late partners, trading as Knox, Boggs & Co., to use, &c. . On ex 'parte affidavit by the attorney, of a mistake in inserting John as the Christian name of the last-named plaintiff, that was stricken out and James A. inserted. This order was excepted to. On the trial, the plaintiff offered a deposition taken before such amendment made, which was objected to, because the cause stated in the rule was a different one from that now trying. The admission of the deposition, and the amendment, were the errors assigned.</p>

, In error -from the District Court of Allegheny county. Sept. 13. The defendants in error were owners of a mill-dam, &c., on the Youghiogheny, which is a branch of the Monongahela.

In error from the oyer and terminer of Allegheny county. Sept. 13. The record in this case showed a true bill for murder in the first degree found against Dunn.

In error from the District Court of Allegheny county. Sept. Ik. Ejectment by Brown. The plaintiff’s title consisted of sealed articles, witnessing that Nickle had sold to Brown the premises in question, and engaged to give to him, his heirs and assigns, a deed in fee-simple within two years from the date thereof; Brown agreeing to pay $140.

<p>The 10th section of the act of 1836, incorporating the Monongahela Navigation Company, is supplied by the 5th section of the act of 1839; and the company is authorized by the latter act to collect tolls on so much of the work as may have been completed.</p>

<p>A parol agreement between a judgment creditor and defendant, that the creditor shall become the purchaser at sheriff’s sale of the land of the debtor, and hold the same as a collateral security for his debt, giving the debtor the right to redeem, is valid, and will be enforced.</p> <p>And where the purchaser under such agreement has received satisfaction of his debt out of the rents and profits of the land, the court will set aside an execution for the residue appearing from the record to remain unpaid, and stay the proceedings.</p>

<p>An insolvent debtor is not a competent witness for his trustee in an action brought on a covenant made with such insolvent, though the witness release his claim to any surplus of the assigned estate, such release being made for the purpose of rendering him competent.</p> <p>In covenant, the short plea, “ covenants performed absque hoc,” amounts to a denial of the allegations in the declaration. Per Grier, P. J.</p>

Sept. 16. The only question here was, whether a bill of review could be maintained for errors apparent on the record, after decree upon appeal to the Supreme Court.

<p>A. devised certain real estate to his wife for life, or during widowhood ; « and, if my wife can lease the whole, or any part, of the said lots to advantage for her and the children, I do authorize her so to do, or to sell ‘the buildings and keep the ground on ground-rent.” It seems a conveyance by the wife in fee reserving a ground-rent of one dollar to herself in fee, is not within the terms of the power.</p> <p>But where the wife conveyed in fee with general warranty, and one of the heirs and the husbands of the other heirs, joined in a family settlement with the wife, wherein, for a valuable consideration, they released her from all claims; the purchaser, ta prevent circuity of action, is protected from suit by the parties to such release.</p>

<p>In error.from'the District Court of Allegheny county.</p> <p>Sept. 17.' This was an ejectment by Hays,-claiming as' devisee of John Hays, in which the question was whether 'there was a will properly proved. On the trial before Lowrie, J., the plaintiff offered in evidence-a written document purporting to be the will of John Hays. This contained a recital, then a clause appointing executors and directing'the payment of debts, then a qlaiise devising “ all my leasehold estate to Abraham Hays, (the plaintiff,) witness my hand and seal,' this 26th September, 1844.</p> <p>“John IIays, [l. s.]”</p> <p>Then followed a clause stating the reasons for making the will, which clause concluded, “ signed, sealed, and delivered by the above-named John Hays, to be his last will and testament, in the presence of us, who at his request and in his presence have subscribed as witnesses thereto.” Then followed the signatures of two witnesses. The witnesses proved their signatures, and that of the testator, and the will without the last clause was offered, and rejected as not being signed at the end.</p> <p>The plaintiff then offered a testamentary paper signed and sealed by John Hays, on the 24th September, 1844, devising the testator’s land to the plaintiff. This was witnessed by two persons. One of them being called, proved the signature of the subscribing witnesses, (one of whom was dead,) and that of the testator. Another witness also proved the signature of the deceased subscribing witness. Neither of the papers had been decided upon by the register. This paper was rejected because the signature of the testator was not proved by the witnesses, and because the paper had not been admitted to probate.</p> <p>The rejection of these two papers were the errors assigned.</p>

<p>In error from the District Court of Allegheny county.</p> <p>Sept. 21. In 1803, Alexander McClure, by his will, reciting that he had given to his sons their share of the land, and that there remained one-half of the tract he and his son William lived on; devised the same to his “ daughter Margaret, wife of Francis McClure, to be divided according to the conveyance” he had given William. “ In short, my will is, that Francis and Margaret, my son-in-law and daughter, have my share of that land.” The testator had previously conveyed an undivided half of the land, excepting the houses, to his son William.</p> <p>In 1805, Francis McClure and Margaret his wife, by deed, conveyed the undivided half «left to Margaret by the will of Alexander McClure,” to William McClure in fee, with a clause of general warranty by Francis McClure and Margaret Ms wife, for themselves and their heirs. This deed was not acknowledged by Margaret McClure. On the same day, and for the same consideration, William McClure and wife (the wife not acknowledging the deed) conveyed a tract to Francis McClure. It was proved that the transaction was an exchange between Francis and William McClure, and that both parties entéred and continued in possession under their conveyances until the death of Francis, about 1843; and that William McClure had 'conveyed to the defendants. It was also proved that the defendants had improved their farms, and erected buildings on them; and there was evidence that Mrs. Margaret McClure had expressed her satisfaction with the exchange made by her husband.</p> <p>, Mrs. McClure died before her husband, and the plaintiffs were her heirs, and children of Francis McClure.</p> <p>The court (Lowrie, J.) directed a verdict for the plaintiffs for eight-ninths of the land; but whether the heir-at-law of Mrs. McClure was one of the plaintiffs on whom the collateral warranty descended, could not be ascertained from the paper book.</p>

<p>If a bailee for hire return the property in a damaged state, and give no explanation how the injury happened, the burden of proof, to show there was no negligence, is upon him.</p> <p>The hire of a carriage on a Sunday, by a son, to visit his father, creates a legal contract.</p> <p>A promise to pay where there is no legal obligation, if made in ignorance of rights, or under surprise, will not bind; but if the right be uncertain, cernirá.</p>

<p>A. purchased stock of an insurance company for B.; the transfer was made to A., “ subject to the payment of the instalments due on the shares,” who subscribed the transfer, “ accepting the stock on the conditions named in the transfer.” The by-laws required the transferee to assume this liability, and it was in consequence of B/s absence that the transfer was made in A.’s name', at the suggestion of the secretary of the company. A. is personally liable to the company for the unpaid instalments.</p> <p>The company having become insolvent, A. took an assignment from a stranger of an unpaid balance due on a policy of insurance by the company. He cannot set off more than the pro rata dividend of the assets of the company upon the losses.</p>

<p>A devise made under a parol promise or agreement that the devisee will hold the land in trust for herself and another, creates a valid trust.</p> <p>And it is immaterial, that the cestui que trust procure the devise to be made on a secret trust for the purpose of avoiding his creditors.</p> <p>Subsequent parol admissions by the husband, and by the wife in the presence of the husband, of such a trust existing on a devise to the wife, are evidence.</p> <p>Evidence of reasons for delay in enforcing the trust properly admitted to rebut presumption from laches.</p> <p>Where a witness contradicted his statements in a prior deposition, his previous declarations are admissible to corroborate his first statements.</p> <p>A husband by the marriage, is not such a purchaser for value as will discharge the legal title held by the wife of secret trusts.</p> <p>Statement of facts by this court on a former writ of error allowed to be read to the jury on a subsequent trial; not, however, as evidence of such facts.</p>

<p>Ail execution cannot issue on an award under the act of 1836, until the expiration of the twenty days allowed for an appeal; and this, whether the reference was after an appeal from the judgment of a justice, or in a suit originally brought in a court of record. ,</p> <p>Defendant in a suit brought into the Common Pleas by appeal from a justice, is entitled, under the general law, to stay of execution from the first day of the term to which the appeal was entered.</p>

<p>A conveyance under seal in fee-simple, on ground-rent, containing a covenant to convey in fee on payment of a sum certain, is an executed contract, vesting a legal estate in the grantee; and a sheriff’s sale of the land under a judgment for the arrears, to the owner of the rent and plaintiff in the judgment, does not affect his right to revive the judgment for die residue, unpaid by the execution.</p>

<p>In ejectment, the heirs may show thaba will admitted to probate was void on account of the insanity of the testator; the decision of the register not being conclusive as to a will of lands, as it is of a will of personalty, until appealed from.</p>

<p>This was a habeas corpus to the sheriff and jailer of Allegheny county. The petition of the relator stated, that an action on the case per quod servitium amisit had been commenced in the District Court and prosecuted to judgment. That he had been arrested and detained on a capias ad resp. until notice to the plaintiff had been given requiring the payment of the “jail allowance.” In default of such payment, he had been discharged on habeas corpus ■by the president of the District Court. On the same day, he was again arrested on capias ad satisfaciendum, and was still detained. That he was unable to support himself, and notice to pay the weekly allowance had been given — wherefore, &c.</p> <p>It was admitted that the relator was held under a ca. sa. in an action for seduction of the plaintiff’s daughter ; and it was proved that notice had been given by the jailer to pay the allowance.</p>

In error from the Common Pleas of Brie county. Sept. 27. Trespass. — Yansise made a written agreement with Sandford, by which he was to be permitted to raise and remove stone from Sandford’s quarry for two locks in the canal: “ say one thousand perches, the exact quantity to be ascertained by measurement in the locks,” the price being forty cents per perch, payable as soon as the contractors were paid.

<p>Testimony taken under a commission cannot be read, if the attorney of one party was present when it was taken, though he took no part in the examination and was not employed to attend.</p> <p>The removal and domicil of husband and wife in another state is no bar to proceedings for divorce on the part of the wife, for causes occurring in this state prior to the removal, if she has returned and resided in this state one year previous to the filing of the libel. '</p> <p>Semble — Subsequent reconciliation is no bar to a divorce a mensa et timo for cruel treatment prior to the reconciliation.</p>

<p>In a lease for years, it was agreed that the lessee should put the mills, &c., in complete order for running, and keep a correct account of the same, which is to apply towards paying the rent on the second year of the lease, and all after-repairs at the expense of the lessee. The tenant may deduct the cost of repairs from the rent of the third year, if it exceed the rent reserved for the second year.</p>

Sept. 28. Appeals by Edward and Daniel Eells, .two of the children of Daniel Eells, deceased, from the decree of the Orphans’ Court of Crawford county, confirming the proceedings in partition of their deceased father’s real estate.

<p>If a constable levy upon'and take goods, after the authority for the seizure derived from the exigence of the writ of execution has expired, and the defendants do no more than temperately exercise the common-law right of recaption, the rescue is justifiable, and no offence is committed. Miter, if they, in enforcing the rescue, commit a breach of the peace.</p>

<p>Where there was an appeal by the plaintiff to the Court of Common Pleas, from thjudgment of a justice in favour of the defendant, a reference to arbitrators, under the act of 16th of June, 1836, and an award for the plaintiff, an appeal therefrom by the defendant, and a verdict for the defendant; held, that the payment of costs in such case, not being provided for by the arbitration act, the judgment must be entered for the defendant, with the costs of suit, which accrued before the appeal from the judgment of the justice.</p>

<p>Sept. 29. ' This case came up upon the.refusáL of the court'below to set aside an execution, on the-application; of the'defendants therein, who alleged that it had issued .irregularly. The facts of the, casé w.ere these: Edward A. Reynolds, Morrow B.’Lowry, and Simeon D. Reynolds, were partners in business ’under the' firm of •Reynolds, Lowry,'& Co..; and Morrow B. Lowry, one of the partners, being' desirous of withdrawing from'the firm, an arrangement was made,'under -and- by-which it was agreed, that Edward A. Reynolds and Simeon D. Reynolds, the two'other partners, should pay the debts of the firm, and indemnify Morrow B-. Lowry-against any loss or' injury for, or by reason of, the samei In pursuance of this arrangement, Edward A. Reynolds.-and Simeon D. Reynolds gave a bond in the penal sum of §8.000, with-condition of indemnity, and -warrant, of attorney -to confess., judgm.en't, &p., dated the 7th'day of May, 1846.</p> <p>The bond contained the condition that the obligors should pay all the debts, of the late firm, and ihdemnify'.the obligee against any loss or- injury for, or by reason of,'the same; and also'the following agreement: “ That, on the failuré óf the obligors to indenfhify the obligee as aforesaid, he shall be at liberty, as-often as he shall have occasion to pay, or become liable to-pay any of the debts aforesaid, to file a statement of .the same with the record of the judgment, &c., and thereupon to issue execution, or executions, to collect the amount thereof.”</p> <p>On the 14th day of -May, 1846, judgment on the bond wag regularly confessed.and ..entered of'record in the Court of Common Pleas of Crawford county; and from thence it was regularly transferred, on the 15th of the same, month, under the provisions of the act of the 16th of April, 1840, to the Court of Common Pleas of Venango county. On the failure of the defendants to comply with the condition .of the bond, the plaintiffs,- after waiting until he incurred liabilities on.account of the debts of the late firm, filed of record-, with the judgment, a statement of the said liabilities, ' as was contemplated by the condition of the bond, and thereupon issued execution on the 26th day of August, 1846. The court, on application by the defendants without affidavit, refused to set aside the execution; whereupon the defendants took this writ of error,, and assigned as error here, that the execution ought not to have issued without a scire facias, or a certificate, filed in conformity with the condition of the bond.</p>

<p>In error from the Common- Pleas of Allegheny county.</p> <p>In an 'ejectment, pending in 1§17 in the Common Pleas, against Wilkins, the defendant dying, Eliza*Wilkins by her guardian was substituted. The entry was made on the trial list by the judge,-but not transferred to the docket.' Judgment having been entered for plaintiff, execution for costs issued, and the property of the substituted defendant-'was sold. On ejectment by hef, in 1845, this defect was discovered; when the court was moved to make-the entry nunc pro tunc, which was refused.</p> <p>; A rule for á mandamus was then applied for, on the suggestion of these facts,- and proof of, the handwriting of the judge who made the entry on the trial list, which was .refused, and this writ of error sued out. '</p>

<p>. . .Though no action lies in Pennsylvania for a trespass by cattle pasturing upon unen- . closed Woodland, yet, that not being a matter of right, the owner of the land is not liable for an' injury sustained by such cattle falling into a. hole dugby him -within .the bounds of his land, and left unenclosed.</p>

<p>In error from the Common Pleas of Crawford county.</p> <p>Oct. 1. The case is sufficiently stated in the opinion of this court.</p>

<p>In error from the Common Pleas of Erie county.</p> <p>Oct. 2. This was a case stated, in a scire facias, on a recognisance of bail, taken on an appeal from the judgment of a justice of the peace; in which Moses Koch, the defendant in error, was plaintiff, and Hezekiah Bates, the recognisor, and plaintiff in error, was defendant. The case, as stated, was this:</p> <p>Upon the 18th of October, 1844, a suit was brought by Moses Koch, against Thomas Day, George IT. Ward, and William H. Martin, before George Kellogg, Esq., a justice of the peace, for the penalty of $50, given by the act of Assembly, for selling goods at public vendue or outcry, without license, in which suit judgment was entered for the plaintiff on the 18th of October, 1844, for' the penalty of $50.</p> <p>Upon the 29th of October, 1844, H. Bates, to secure an appeal for defendants, entered into the usual recognisance under the law then in force, of which recognisance the following is a copy:</p> <p>“ Hezekiah Bates bound in the sum of $100, conditioned that the defendants prosecute their appeal with effect, agreeably to act of Assembly. Acknowledged, the 29th of October, 1844.”</p> <p>“ On the 20th of March, 1845, by an act of Assembly of the same date, the 5th section of the act of 20th of March, 1810, under which the recognisance in this case was taken, was repealed.</p> <p>“ Upon the 10th of May, 1845, the suit, to secure the appeal in which the recognisance was taken, was tried in court, and a verdict for the plaintiff for the penalty of $50, upon which judgment was regularly entered. This scire facias issued the 21st day of November, 1845. If, upon the foregoing, the court consider that the plaintiff is in law entitled to recover on said recognisance, then judgment for the plaintiff for $50, and interest from the date of the original judgment, with the costs thereon. Otherwise judgment for the defendant.”</p> <p>The case stated, stipulated that either party should be entitled to a writ of error.</p> <p>March 30, 1847, judgment for the plaintiff in the case stated, for $50 and interest and costs. The defendant thereupon sued out this writ of error, and assigned the judgment of the court as error here.</p>

<p>In error from the Common Pleas of Mercer county.</p> <p>Oct. 4. The plaintiff declared, in the District Court, now Common Pleas, on a judgment recovered in the Common Pleas of Trumbull county, state of Ohio. The plaintiff filed a copy of the record, which was a judgment on a cognovit, as his claim, under the act creating the court, and authorizing judgments for want of affidavits of defence, and entered a judgment by default, according to the rules of court. In 1843, a fi. fa. issued, and the defendants, in writing, agreed the property'should be sold without an appraisement. An sttachment execution having issued, this writ of error was sued out.</p> <p>The errors assigned were that the narr. did not set forth a judgment in the state of Ohio, or aver jurisdiction in the Common Pleas of' Trumbull, nor that a cause of action accrued in Mercer county.</p> <p>That the cause of action was not within the act of Assembly, and the judgment was irregular, there being no such rule of court as was there referred to.</p>

In error from the Common Pleas of Mercer county. Oct. 4. The plaintiff in this ejectment claimed under a patent in 1834; the defendant under a patent in 1804 to Scott; and the question was, whether the land in dispute was covered by the Scott patent. It appeared that one Swearingen had made an unofficial survey, which the deputy surveyor was asked to adopt as the survey on the Scott warrant. This he declined doing without examination, but sent to have it examined.

<p>In error from the Common Pleas of Beaver county.</p> <p>Oct. 4, 5. This was an ejectment by the heirs of John Crail against S. M. Crail.</p> <p>It appeared that a settlement had been made in 1797, which right was transferred to John Crail. It was found by the verdict that the residence, &c., was not on the tract in dispute.</p> <p>In 1818 one Hailes commenced an improvement on the tract in dispute, and the same year executed articles for the sale of his right to John Crail.- These were, however, shown to be cancelled, and there was no evidence they had been complied with.</p> <p>In 1828, Hailes conveyed to S. M. Crail, the defendant, who obtained a survey and patent for Hailes’ right.</p> <p>In 1829, John Hailes applied for a pension from the United States, stating in his application that his property consisted in 1818 of, inter alia, two hundred and fifty acres of land, and that since then it had been recovered from him in an action at law by a stranger, excepting twenty-six acres, and that he had no other income. In the accompanying certificate his property was stated not to exceed $174.</p> <p>There was some evidence that defendant had admitted John Crail owned the land, and that he and Hailes on one or two occasions had paid rent by a share of the crop.</p> <p>His honour, Bredin, P. J., instructed the jury that the possession retained by Hailes, and his sale to defendant, after the agreement with John Crail,. migjit be presumed to have been abandoned; that coupled with the affidavit of John Crail, in 1829, it would require clear and satisfactory evidence to warrant them in finding he held for John Crail.</p> <p>His honour also submitted the question to the jury, whether S. M. Crail was the tenant of John Crail — saying that if he obtained possession from John as tenant, he was estopped denying his title; but if he had obtained possession from another, and the landlord had no title, he would not be estopped.</p> <p>The errors assigned were, that the jury were misled by requiring a grade of evidence unknown in civil actions. 2. The court should have defined what constituted a tenancy.</p>

<p>In error from the Common Pleas of Beaver county.</p> <p>• Oct. 5. Morton, by his will, executed in 1807, and proved in 1810, devised one-third of his real estate to his widow for life; and to his son William, “ if he does not obtain the land he now lives on, the one-half of the tract I now live on, and the other half to my son Joseph, allowing my wife her thirds during her natural life.” Joseph entered upon the whole tract at the death of his father, and continued in adverse possession until a sheriff’s sale of his interest to the lessor of the defendant.</p> <p>The widow of Morton also continued in .possession with Joseph, until her death, in 1823.</p> <p>Morton, the plaintiff, had the title of the heirs of Morton, the testator, seven in number, besides Joseph. He claimed in this ejectment, instituted in 1843, seven-eighths of á moiety of the tract.</p> <p>For the purpose of showing that the statute of limitations did not commence running against his right until the date of the settlement of the dispute referred to in the will of. Morton, which was within twenty-one years, he offered the record of an ejectment brought by William Morton, the devisee, in 1804, against Denn et ah, in which there was recovery by Morton of the land referred to in the will: with proof that that action had not been settled until 1834.</p> <p>The rejection of the evidence for this purpose, and entering judgment on the general verdict for the defendant, when the evidence showed the life-estate of the widow in one-third of the land had not terminated until within twenty-one years, were the errors assigned. It did not appear that any particular claim had been made for this portion of the land, nor was the charge upon the record, or excepted to.</p>

<p>Where a.bid has been made at a sheriff’s sale by auction, and the sale adjourned, the bid is withdrawn by implication.</p>

In error from the Common Pleas of Beaver.county. Oct. 6. This was a feigned issue directed on behalf of Purdy, a creditor of Power, to determine whether a judgment confessed by Power to Lacock was satisfied. In March, 1837, Lacock and Power entered into partnership; Lacock agreeing to become a special partner, and advancing $4000 as capital; but though the articles were recorded, the act of Assembly relating to limited partnerships was not complied with in other respects.

<p>In error from the Common Pleas of Beaver county.</p> <p>Oct. 7. Assumpsit by Powers and Lacock, partners, trading as William H. Powers. It appeared that in 1837 the plaintiffs entered into articles of partnership, by which Lacock agreed to become a special partner; but the act of Assembly on that subject was not complied with.</p> <p>Purdy, the defendant, purchased sundry articles of merchandise from the store at which the firm conducted their business. Without the consent of Lacock, Purdy endorsed the amount of his debt as a credit upon a judgment he held against Powers; and the main question was whether this credit, by Powers’s consent, of which there was some evidence, was a bar to the action.</p> <p>The court was requested to charge, that if Powers was guilty of bad faith or misconduct towards his partner, in applying the assets of the firm to his private debts, there could be no recovery in this action in which he was a plaintiff. Brbdin, P. J., negatived the proposition, and this was the only exception to the charge. His' honour also left it to the jury to say whether the partnership was a dormant one, or whether Purdy knew Lacock was a partner.</p> <p>The only exception to the evidence argued was: the defendant having examined witnesses to show that Lacock was not known as a partner, the plaintiffs called witnesses to prove (under objection) that he was generally known as a partner.</p>

<p>In error from the Common Pleas of Mercer county.</p> <p>Oct. 7. It appeared from the special verdict that William Ste plicnson, by deed dated October 20, 1840, reciting that his son Thomas had become unable to pay his debts and support his family, and the desire of William to procure him employment for that purpose, and secure to his children born, and to be born, a portion of the grantor’s estate, conveyed to Oliver Stephenson, his heirs and assigns, a house and lot in Mercer, in trust for the use of the children of Thomas, viz. Margaret and Samuel, and such other children of said Thomas as should thereafter be born. The deed further assigned all the household furniture, and divers other personal property belonging to the grantor, then in the possession of Thomas, and all the store-goods and implements for selling the same, and lumber, produce, and all effects then in his possession as agent of the grantor, and all debts due to the grantor in said county, and certain other debts specified, upon the same trusts as were declared of the realty. The deed then recited that -the grantor, having full confidence that Thomas would-manage the. property conveyed for the benefit of his children born and to be born, thereby constituted him sole agent and guardian of such children during their minority, and authorized him to reside on the property and tahe charge thereof, and of the effects connected therewith. “Also to conduct the business of buying and selling goods for the benefit of the said children; and for that purpose to have the custody of all the goods, §■e., and to sell and dispose of the same, and the moneys arising therefrom to invest in other property, real and personal, in his discretion deemed most beneficial for the childrenwith power to him to sell the real estate, and to account to them at twenty-one. It was further provided that on Oliver signing the annexed power, appointing Thomas agent, &c., his liability as trustee should cease; and that Thomas should receive $700 per annum for his services, and not be liable for any rent for the premises resided on. Then followed this clause — “And the property and funds hereby granted shall be subject to all legal charges and expenses in carrying on the business, and all debts heretofore contracted by Thomas in carrying ■ on the business as agent for the grantor, shall be paid out of the property, &c. hereby conveyed,” so that the grantor should be indemnified.</p> <p>Pursuant to this deed, Oliver, the grantee, executed the annexed deed, appointing Thomas his agent and the agent of the children for whom Oliver was trustee, to take charge of the property and “ conduct the business as in the said dee.d contemplated.”</p> <p>The verdict further stated that, in 1888, Thomas Stephenson came to live in Mercer, as agent of William; and that he held goods valued at from $5000 to $7000; and that the house mentioned in the deed was worth from $2500 to $3500; that the stock was kept at the same value until 1844, when Thomas removed, and on his return it was diminished; 'that in October, 1842, Thomas Stephenson purchased goods of the plaintiff for the purpose of carrying on the trust; and'- that one of his children had been born since the trust was created.</p> <p>The action was -assumpsit against Margaret, Samuel, Oliver, William, and Mary Stephenson, minors, by their guardian, Thomas Stephenson. Thomas dying pendente lite, the guardian of the children was substituted. And the question was, whether there could be a recovery to be levied out of the trust estate. The court below gave judgment for the defendants.</p>

<p>In error from the Common Pleas of Beaver county.</p> <p>Oct. 7. In -1838, Ankeny drew two notes, of $500 each, which were discounted for his own accommodation. One, dated December 12, 1838, at' sixty days, to his own order, on which Purdy was the first, and Stewart the second endorser. The other was dated March 21, .1838, at sixty days, to the order of Stewart, and by him endorsed. '</p> <p>. The notes were renewed from time to time by Ankeny, who procured the endorsements, in blank, by Stewart and Purdy, as he happened to meet them,-without any regard to their priority. The two notes were consolidated in 1839, without notice to Purdy or Stewart, and the same practice as to endorsements continued. In 1843, the note, reduced to $250, was protested: Stewart being the first endorser. Purdy paid half the amount, and Stewart the other half, without prejudice to their respective rights, and this suit was thén brought. The court was of opinion, that there-being no agreement, and no evidence of Purdy having procured the change in the situation of the endorsements, the legal consequence of their position, on the'notes must prevail, and -Stewart was liable to Purdy.</p>

Oct. 8. In 1841, McGill conveyed certain land in Butler county to Logan, who gave Ms bonds for tbe purchase-money — tbe first four of which were paid: one for $160, due in 1846', and one for $2000, due in 1847, were unpaid; and the latter was'assigned to the administrators of Ayers. In 1833, there was a judgment recovered in the Circuit' Court of the United States for the western district, and revived in 1841, against McGill, of which-it appeared Logan was ignorant.

<p>An administrator is not chargeable in his administration account witli the personal property of liis intestate, which is not assets for the payment of debts, as a pension granted to his intestate, which, by the act of Congress conferring it, is declared not liable to creditors, though payable to and received by him as administrator.</p>

<p>In error from the Quarter Sessions of Allegheny -county.</p> <p>Oct. 11. The second count in this indictment, on which alone the cause was tried, averred that the defendant, in the year 1847, within the fourth ward of Pittsburgh, (in which ward there had been given a majority of votes “ against the sale of liquors,”) sold rum, &c., without having first obtained a license for that purpose. The plea was not guilty. The paper book then set forth the admissions by the parties that defendant, residing in said ward, had sold spirituous liquors in 1847; and that in said ward an election was held according to the act of April 7, 1846, authorizing a decision by the citizens, by ballot, whether the sale of such liquors should be continued in said counties, and a majority of votes was given against the sale of liquors; and that defendant had not obtained a license from the Quarter Sessions as a storekeeper or apothecary to sell vinous and spirituous liquors for medicinal and sacramental purposes, and to be used in the arts. It was also admitted that defendant had taken out a license from the treasurer of the city of Pittsburgh, for vending foreign merchandise and liquors, agreeably to the act of 7th April, 1830, which license was taken out in 1847, and had not expired at the time of the alleged sale.</p> <p>The only points are, whether the act of 7th April, 1846, applied to the wards of Pittsburgh; and if so, whether it was constitutional ; and these, the court below ruled against the defendant.</p>