Volume 6 — Sergeant & Rawle's Pennsylvania Reports

In Error. THE defendants in error brought a suit in the Court w of Common Pleas of Dauphin county against the plaintiff in error, and held him to bail in the sum of f¿ 500. The cause was arbitrated and an award filed in favour of the plaintiffs, on which an execution issued.

Christian Brenneman died in the autumn of the year 1818, intestate, leaving four sons and five daughters, all of whom, except one, were of age at the time of his death. He also left two grand-daughters and a grandson, children of his eldest son, Michael Brenneman, who died several years before his father.

<p>indict-^ particular statute, must be conformable to that statute.</p> <p>An indictment founded upon the act ingthe defend-erection of digeneral; each dSoTof-* *be ner of each ^‡'.6 scems’thatthe g°™’ fmí má°tfig composed</p>

<p>In ERROR.</p> <p>When the trial came on and the jury-agreement was produced by the plaintiffs, upon which the jury were discharged, and the cause THIS case came before the Court on a writ of error to the Common Pleas of Lebanon county, where it appearecj a suit had been formerly brought by the plain-r .joji tiffs in error against the defendant in error, to November Term 1816, on a promissory note or written promise, not exceeding g 1600. ° , . had been sworn, an agreement was produced by the plain- ( marked upon the record, “ settled as per agreement filed.” 1</p> <p>1° pursuance of this arrangement, the following agreement was filed of record.</p> <p>“ Whereas a dispute has existed between the Berks and Dauphin Turnpike Company, and John Myers, Esquire, reSpecting twenty-five shares of stock subscribed by the said John Myers, and in order to settle and put an end to the sal(f dispute, it is this day agreed by and between the said John Myers and the said company, as follows, to wit:</p> <p>“ The said John Myers agrees to take and keep the said twenty-five shares of stock so as aforesaid subscribed, and J p.ay the same as follows, that is to say; the sum of two hundred and fifty dollars, part thereof, on the first day of Octonext, and the remainder thereof in annual payments of two hundred and fifty dollars, on the first day of April, in each and every year until the whole sum 'of twelve hundred fifty dollars shall be paid, without interest. And further, that the legal costs of the suit brought, except counsel fees, be Pa’d by and between the said parties in equal shares. In witness whereof, the said parties have hereunto set their hands and seals the twentv-ninth day of April, A. D. 181 f.</p> <p>(Signed,)</p> <p>Witness present, Samuel Valentine, Witness the seal of the Corporation, [seal.]</p> <p>John Myers, [seal.]</p> <p>Christian Snivelly, Treas. [seal.]</p> <p>Christian Leg, P-res’dt. [seal.]</p> <p>William. Wood, Sec’ry. [seal.]</p> <p>This agreement not having been complied with, the plaintiffs, by the name and style of the President, Managers, and Company of the Berks and Dauphin Turnpike Road, brought -an action of covenant against the defendant, in which they declared upon the agreement of the 29th April, 1817, and laid the breach in the non-payment of g 250 dollars on the 1st October, according the terms of- the contract. The defendant pleaded non est factum, and covenants performed ; to which the plaintiff, replied, and issue was joined.</p> <p>On the trial, the plaintiffs, after having given in evidence the record of the former suit brought to November Term 1816, offered in evidence the agreement filed in that suit, and proved by the oath of the subscribing witness, whose testimony was as follows:</p> <p>This agreement was signed at my father’s house, in Myerstoxvn. I put my name to it as a witness. I heal'd John Myers acknowledge it to be his hand and seal. I did not see the corporation seal put to it: and I do not recollect that the corporation seal was to it. I did not see the seal of corporation at Myerstown. But I heard them all acknowledge them to be their hands and seals.”</p> <p>The defendant’s counsel objected to the admission of this agreement, 1st, Because its execution by the plaintiffs was not duly proved.</p> <p>2dly. Because if the execution of it were proved, the instrument itself was void, inasmuch as the charter of incorporation requires five managers to make a quorum for the purpose of entering into such a contract as the plaintiffs aver this to be, and the article appears to have been signed by three persons only, of whom the president alone was a manager.</p> <p>3dly. Because, as the agreement disposes of stock of the company, contrary to the' manner prescribed by law, it was void.</p> <p>4thly. Because the declaration sets forth a covenant with the President, Managers, arid Company of the Berks and Dauphin Turnpike Road; and the article contains a covenant with the Berks and Dauphin Turnpike Company, and there is no such company as the Berks and Dauphin Turnpike Company.</p> <p>The Court refused to permit the agreement to be given in evidence, and the plaintiffs excepted to their opinion.</p> <p>cited 3 Bl. 305. 5 Bac. Ab. 372. Pigott v. Hollo-way.(a) 2 Bac. Ab. 7. 4s Com. Dig. 137. Mayor of Thetford’’s■ case.(b) 2 Bl. 306. 8. Jackson v. Walsh(c) Fhill. Ev. 123.129. Jennings v. Bragg.(d) 3 Bac. Ab. 696. Pow. on Cont. 54. New York African Society, Uc. v. Varick.(e) Danforth v. President, Sfc. of the Scoharie and Duanesburx Turnpike Road:(f)</p> <p>cited Head v. Providence Insurance Company.(g) ■ Beatty v. Marine Insurance Company.(h) Rex v. Spencer.(i) Jenkins v. Union Turnpike Company.(k)</p>

In Error. THE defendant in error, Jonathan D. Heister, commenced an action of debt on a bond for jg 1600, in the Court of Common Pleas of Dauphin county, against Frederick Boaz and John Weiser, in which he demanded bail in the sum of S 500; and filed a declaration against both defendants jointly. Boaz entered special bail, but the writ was returned non est inventus, as to Weiser.

<p>The entry of the owner ofísmdís only barret' b)':m tinued, visible, "¡nSfandhos" tile possession, for twenty-one years. It is not necessary, to entitle him recover in thaUiTshould del; whom he claims hfivc in possession within twenty-one years before bringing suit.</p>

<p>In Error.</p> <p>THE defendants in error, who were plaintifls below, issued a summons in debt on “ a verbal promise and covenant, not exceeding $ 300,” and filed a statement agreeably to the 5th section of the act of 21st March, 1806,(a) to regulate arbitrations and proceedings in Courts of justice, in which they set forth a verbal promise to pay a certain sum of money. The plaintiffs insisting on a plea in Court, or judgment, the defendants objected to the plaintiffs’ statement, and declined pleading; upon which a judgment by default was entered, and an execution issued; to reverse which, the defendants took a writ of error, and removed rec°rd t0 this Court, where they assigned the following errors.</p> <p>1. That debt on a verbal promise and covenant, cannot be j°ined in the same action.</p> <p>2. That oyer of the covenant was not granted before judgment.</p> <p>3. That the plaintiffs’ statement, does not set forth or shew any covenant, and is therefore a departure from the writ.</p> <p>4. That the defendants were not in default, when judgment was entered.</p> <p>5. That the judgment was unauthorised by law.</p> <p>6. That execution issued before final judgment, or the debt was legally ascertained.</p>

<p>In Error.</p> <p>THE action in the Court below, was founded on a promisory note drawn by Daniel & Nicholas Deihl, in favour of Henry King, junr., for 481/. lli. 6d., and payable on the 1st June, 1814, with interest from the 1st May, 1814. J , , 1 the 19th September, 1814, it was assigned by the payee to Henry King, the intestate, whose administrators were the plaintiffs. It appeared that the note was given in part pay-i r 1 V1 1 1 J TT ,g. . r , 1 / mentor a legacy bequeathed to Henry King, junr., by the will of Peter Deihl, whose executors the defendants were. The will was dated the 6th January, 1801, and the clause , , , , ... , , upon which the only question discussed on the argument in this Court turned, ran thus: “I also give and bequeath unto Henry King, my grandson, (the issue of my daughter Elizabeth, deceased, who was intermarried to Henry King,) and to his heirs and assigns, the sum of one thousand pounds, in real gold and silver money, current in Pennsylvania, to be paid to him in two hundred pounds yearly payments; the first payment whereof to be made in May, 1808, and from thence, two hundred pounds successively, until the whole shall be fully paid. Nevertheless, the said Henry Kins', should die unmarried and without issue, that then, and in such case, the sum so bequeathed shall be equally divided, to, and amongst all my children, share and share alike; but in case he shall marry, and then die without issue from his body, that then, and in such case, two-thirds of the said legacy shall only be divided amongst my children as aforesaid, and the one-third of the .77 7 77 . • 7 -i 77 said legacy shall be given to the widow.</p> <p>Peter Delhi, the testator, died in the month of May, or June, 1812; Henry King, junr., died in the year 1816, unmarried, and without issue, having about two years- previous|y# attained the age of twenty-one years.</p> <p>It was contended in the Court below, by the defendants’ counsel, that the limitation over of the legacy bequeathed to Henry King, ¡war., was good in point of law, and that on his death, without having been married, it vested in the children of the testator.</p> <p>The Court however, (Franklin, President,) charged the jury, that under the provisions of the will of Peter Deihl, and the circumstances of the case, the legacy vested in Henry King, junr., absolutely; and the executors having given to him a note for the amount due, payable to him or his order, the note was assignable, and was legally transferred to the plaintiffs’ intestate.</p> <p>To this opinion, exception was taken by the defendants’ counsel, and the record was returned to this Court on a writ of error.</p> <p>relied upon Scott Ví Price.(a) Turbett v. Turbett,(b) Findlay’s Lessee v. Riddle.(c) Hoge v. Hoge.(d) Forth v. Chapman.(e) Moffat’s executors v. Strong.(f) Jackson v. Staats.(g)</p> <p>cited, Beauclerk v. Dormer.(h) Anderson v. Jackson.(i) 1 Roper on Wills, 317. 2 Roper on Wills, 574.</p>

Error. In the plaintiff in error, brought killing a dog, in the Common ^eas Dauphin county, against Nicholas Stroh, the elder, and Nicholas Stroh, the younger, as to whom the sheriff returned, summoned; and Robert MiGulley, as to whom, nihil, was returned.

ERROR. A SCIRE FACIAS was issued in the Court of Common Pleas of Dauphin county, in the name of Amos Ellmajier Esquire President of the Orphans’ Court of the said county, the successor of Walter Franklin, Esquire, who was the successor of John Joseph Henry, Esquire, late Presi^ent °f that Court, for the use of James Alricks. against John Kean, with notice to Daniel Reigart and Nicholas Swoyer, terre-tenants of a certain three story brick house and *ot ground, situate in the…

In Error. ERROR to the Common Pleas of Berks county, in a _ . , . ,. , , , _ _ , feigned issue, directed by the Registers Court, to try the validity of a paper, purporting to be the last will and testament of Jacob Hock, deceased. ^ ' The opinion of the Court will fully explain the only point in ‘ controversy.

In Error. THE premises for which this ejectment was brought in , r ° , °, , the Common Pleas oi Lancaster county, were claimed by John and Margaret Mercer, the plaintiffs below, as heirs at law of their father, James Mercer, in whose wife Margaret, the title was once indisputably vested, and who, on the 30th March, 1785, in conjunction with her husband, conveyed them to Nathan Thompson in fee, who, on the same clay executed a conveyance in fee, to James Mercer.

In Error. IN this suit, which was-brought by the defendant in 7 r -r error, mthe Common Pleas ot Lancaster county, to recover the price of a quantity of lumber sold to the plaintiff in error, the following statement was filed. w “ On the 20th June, 1811, the plaintiff sold lumber to the defendant, for which the defendant agreed to pay him, * u * , “ The plaintiff, after repeated enquiries, being unable to find Campbell, brings this suit, to recover from Boyd the said sum of…

<p>THIS was a writ of error to the Common Pleas of York _ _ county, in an issue of devisavit vel non, formed to try the validity of a paper set up as the last will of John Patterson, deceased, in which several bills of exceptions to the 7 7 1 mission of evidence, were sealed by the Court, and ed with the record.</p> <p>After the plaintiff below, who was also the plaintiff in error, had gone through his evidence, the defendant, who was the testator’s widow, to whom he only bequeathed, “ her gold watch, with all her wearing apparel, her saddle and bridle, and her spinning wheel and reel,” while he gave the whole of the residue of his estate to his own family, offered to prove, that the asserted will had been obtained by the father, mother, and family of the devisor, by a conspiracy between them, and by fraud and imposition on his wife ; and in connection with this, offered to prove, that the • whole estate was derived from the testator’s wife; to establish which, the will of George Lewis Lejler, was offered, togegether with evidence of the value of his estate, arid deeds, of release from John Patterson and Elizabeth, his wife, to Mary Lefler, and from Mary Lefter, to them. J J j j ■></p> <p>An objection was made by the plaintiff’s counsel, to the admission of this testimony, but the Court permitted it to go to the jury, who found a verdict in favour of the defendant.</p> <p>insisted that if any part of the evidence was improperly recéived, the judgment must be reversed; that as the issue in the present instance, was on fraud in the execution of the will, nothing should have been admitted, which was not pertinent to that issue; that however unreasonable the disposition of the property might have been, the source from which it was .derived, and the manner in which it was disposed of, afforded no inference of fraud, in the execution of the instrument, by which it was devised. The evidence was therefore irrelevant.</p> <p>The Court declined hearing the counsel for the defendant in error.</p>

<p>Where a beenhad in a plaintiff*1 counted for an entire sum, (e. g. for the money due an fob* v*¡& recovery is101* suit brought on the same contract, to recover a sum which was included in.the declaration in the first suit; and the plaintiff will not be permitted to prove that no evidence was given to the former jury in support of the latter claim.</p>

<p>Where a cause was re-j}°uph¡n t™ Lebanon ruary, ms, tai^paiL*1*" °^Qac„3]®r counties into» tyPcaned°Le-" ?>anon county, it was held that the dethe jurisCourtofCom» ot county, the those fac°s, átiho rise a removal; error hí tiiat^ Court, either ‘to decide sum* marily in fat0 disregard abatement, tried on the merits, on a .plea in bar.</p> <p>, ,. ... Where a cause was removed under the provisions of the above mentioned act, in September 1815, and no declaration was filed until February, 1818, it was held, that a plea to the jurisdiction, entered immediately afterwards, was.intime; and that an appeal by the defendant from an award of arbitrators, appointed under a rule entered by the plaintiff, and the entry of a rule to take depositions by the defendant, were no waiver of objections to the jurisdiction of the Court.</p> <p>Query, Whether the parties were not bound to make their election as to the removal before the day appointed by the act, for the prothonotary to have his docket completed, and the records readv for delivery? J</p>

In Error. FROM the record of this case, which came before the „ • r _ , . . . COUrt, on a writ or error to Dauphin county, it appeared to be a special action on the case brought by the plaintiffs in error, Jacob Greenwalt, Philip Leebrick, and Jacob Andrew, against John Horner, Jacob Keller, and David Keller, the defendants in error, for disturbing them in a right of way over the lands of one of the defendants. The plea was, guilty.

<p>Mandamus.</p> <p>THE whole case is comprised in the opinion of the Court, which was delivered by</p>

In ERROR. CLAYTON, who was plaintiff below,- brought an action of slander, in the Court of Common Pleas of Lycoming county, which was submitted to arbitration.

In Error. THOMAS CLARK, the plaintiff in error, who was also plaintiff below, brought an action of trespass, quare clausum fregit, in the Court of Common Pleas of Lycoming county, against Arthur M‘Kisson, the defendant in error, and laid his damages at three hundred dollars. The cause was tried, and the jury found a verdict for thirty dollars damages, in favour of the plaintiff.

<p>ifthe affidaby theSthfee1809, tobe on purchasing a writ of error, be not filed until after th~ writ is issued, and the record returned to this Court, it is too</p> <p>.The affi;,a" vit cannot be dispensed the p 1 nUuUímTi is an ad-</p>

In Error. WRIT of error to the Common Pleas of Columbia county, in an action of ejectment, brought by John Frick, surviving executor of John Frick, deceased, against Mathias Vanhorne, whose landlord, John Fury, was added as a con defendant. It is not possible to present a more perfect and satisfactory report of the case, than that which is contained in the opinion of the Court, which was delivered by cited Niven v. Belknap .(a) Ewing v. Tees.(b) Pow. on Cont. 305.

In Error. WRIT of error to the Common Pleas of Bradford county.

NEGRO TOM, a pauper, was removed by an order . . * r ’ T / a jr- , two justices of the peace of Umon county, from Buffaloe township in that county, to the township of Ferguson in the county of Centre. J On an appeal to the Quarter Sessions, the order of the justices was reversed, and the pauper ordered to be returned to the township of Buffaloe, which was directed to pay the costs of the removal and appeal. The proceedings removed to this Court by certiorari.

In Error. THE record of this cause, which had several times previously been before this Court, was agtdn' brought up, on a writ of error to Mifflin county. The points involved in the present decision, together with the facts upon which , 1 ....

<p>.T1^ 1'ni« which renders incompetent,a evWeücetewU to impugn an instrument which he has though not mterested in the event of the ments strictly the usual candle busi-'' neas-</p>

<p>to the jury by against whom the Board ?s°f given in evithe grónndseW upon which they proceedcd. An ex parte deposition before the Board of Property, may be read</p> <p>of a descrip-61' wlthoutsur* vey, who has thermits of ins claim by marked boundaries, taken up his residence on the lar^quantity* and cultivated ft"1s po°ssessi°n[0ftthet and if a third nothing-short of 21 years adverse possession, will bar the entry of . the warrant aeMeisno30 within the meaning of the 5th section of the act of limitations of 26th March, 1785.</p> <p>It is not the law of Pennsylvania, that by obtaining a patent, and selling to a purchaser for a valuable consideration, all enquiry as to adverse claims, founded on an equity arising previous to the patent, and of which the purchaser had no notice, is precluded. The title under the patent, may he controverted by one who claims under an imperfect title depending on a settlement, warrant or location without patent, and then the question will be, to whom the patent ought to have been granted by the land office.</p> <p>Constructive notice is matter of law for the decision of the Court; but if the Court leave it to the jury to decide, whether the defendant had received notice, actual or constructive, and at Ihe same time inform them, that notorious possession is constructive notice, it is not error.</p>

JN ERROR. ERROR to the Common Pleas of Northumberland , . . , . , , county, m which the action was debt, upon a recognisance ’n tl‘e sum °f 23771. 17s. 67., entered into, by order of the Orphans’ Court, by William Murray and Robert Taggart, for securing to the heirs and legal representatives of Thomas Taggart, deceased, the share of his estate to which they should be respectively entitled.

<p>trato” only at" tend at the a^ohíted for” their first meeting, he may adjourn without appointing other arbitrators in. those wToare absent, ifneither .party request, that may be filled by anewap- and an award mídebythe original arbitratarais good*</p>

In Error. THE whole of this case, which came before the Court on a writ of error to Mijflin county, will be found in the following opinion, delivered by

In Error. ON a writ of error to the Court of Common Pleas of Union county, it appeared, that the land for which this ejectment was brought, was claimed by the plaintiff in error, who was also plaintiff below, on a warrant dated the 17th November, 1785, to William Cochran, including his improvement ; bounded on the south by land of F. Marryather, on the west by land of Robert.

In Error. W RIT of error to the Common Pleas of Centre county. In delivering the opinion of the Court, the Chief Justice has stated every thing connected with the points viucu. referred to Penns. Hartman. (a) cited, Thill. Ev. 175. Peake's Ev. 13. 15, 16, 17, 18. Douglass v. Sanderson.(a) Jackson v. €ooley.(b) Jackson v. Bohlman.(c) Goodright v. Moss.(d)

In Error. WRIT of error to the Common Pleas of Union county, in an eiectment brought by John Seabold, the defendant in ■ „ . , „ 7- •! 7 n 7, error, against David Burd, junr., with whom David Burd, the elder, was, after the commencement of the action, made a co-defendant, to recover thirty seven acres and . ninety six perches of land, in Buff aloe township.

In Error. DOWER. Sarah Fowler, the widow of Alexander Fowler, brought this action, in the Court of Common Pleas of Allegheny county, to recover her dower in a lot of ground, &c., in Pittsburgh, of which the defendants were in possession, and of which it was admitted, her husband was seised in fee on 8th October, 1791, when he, and his wife, the tiff, to whom it was admitted he was lawfully married, conveyed part of it to William Earle and James Kenvin.

In ERROR. WRIT of error to Allegehny county. The cause was referred under the act of 1705, by consent of parties, to three persons. One of the referees did not act: the other two named one in his place, and these three 7 ^ 7 # made a report in favour of the plaintiff.

<p>■ if an agent, cmdracT/ort0 sak, sell, and convey land, enter into artides of agree* ment, by which it is that the vendee shall clear, make improvements, pay the purchase money by instalments, fee.,' and on the completion of the covenants to be performed by him, receive from the vendor, or his legal representative, a good and sufficient warrantee deed, in fee, for the premises, the receipt of the agent for such parts of the purchase money as may be paid before the execution of the deed, is binding on the principal.</p>

In Error. A WRIT of error having issued to the Court of Common Pleas of Fayette county, it appeared, that Connell, the plaintiff below, granted the premises which were the subject of dispute m this ejectment, to one George Lamb, in fee, reserving a perpetual annual rent charge, with power to distrain, and with condition, that if the rent should be hind and unpaid for the space of a certain number of days, and no distress sufficient to satisfy the rent in arrear, could be…

<p>In Error.</p> <p>ROBERT 31'■CLEAN, the plaintiff in error, brought an action in trover in the Common Pleas of Fayette county, for certain promissory notes. On the trial, after having proved that the notes had been in the possession of the defendant, he offered to give parol evidence of their amount. This evidence was rejected by the Court, upon which, the plaintiff excepted to their opinion.</p>

<p>In Error.-</p> <p>THIS was an ejectment for a tract of land in Butler county, to support his title to which the plaintiff, Enoch. Varnum, gave in evidence an improvement in the autumn of 1797, within the bounds of a survey subsequently made for him, but not within the limits of the defendant’s claim; a residence thereon, from February or March, 1798, until the institution of this suit, and a survey for 400 acres, on the 11th September, 1811.</p> <p>The defendant admitted that he was in possession of part of the land claimed by the plaintiff, which he proved was situate within the second district of donation land, and to establish his title to it, gave in evidence a patent, dated 8th February, 1804, to Andrew M'-Kee, for lot No. 301, containing 200 acres and allowance; a conveyance by M'-Kee anc* wife, to Andretv Kennedy, and John Kennedy, andproved his residence within the bounds of his patent, from the year 1805. He also gave in evidence a survey, which excluded the plaintiff’s place of residence, and his improvements.</p> <p>The plaintiff then gave in evidence the report of General 'William Irvine, the agent of the Supreme Executive Council, dated 17th August, 1785, and contended that as the land in dispute was one of the lots in what was denominated, the Struck District, which had been reported by General Irvine to be unfit for cultivation, and accordingly had been thrown out by the Executive Council, from distribution as donation land, it was, at the time it was appropriated by him, open for settlement under the act of 3d April, 1792, for the sale of the vacant lands within this Commonwealth, and consequently, his title could not be divested by the defendant’s patent, which was subsequently granted.</p> <p>The Court however, were of opinion, and so instructed the jury, that the tract of land patented to the defendant, was not open to settlement under the act of 1792, at the time of the plaintiff’s settlement, or at any subsequent time, prior to the date of the defendant’s patent.</p> <p>Agreeably to this instruction, the jury found a verdict for the defendant, and the plaintiff removed the record, by writ of error, to this Court, where the question presented by it was argued by Ayres, for the plaintiff in error, and A. W. Foster, for the defendant in error.</p>

In Error. ERROR to Allegheny county. John Gorman, the plaintiff in error, who was defendant below, on 31st January, 1810, bound himself by bond, to Nathaniel Richardson, the plaintiff, in the- sum of twelve , i- ’ r hundred dollars, to be paid “ at some time within the term of partnership, viz., ten years from the date of the of partnership between the said John Gorman, the said Nathaniel Richardson, and Thomas Baird, with legal interest from the date of the said bond.

<p>The comsnissioners of Allegheny amhonty mi<ier the act of 26th February, 1817,to purchase “thin the consent and t^e grand jury Qmirter Seí</p> <p>migbt'be°e"er gaily executed commission-6 the cmicu°r'It renceofthe</p> <p>derethatactUn* that the comSouhS the old jail, before theypurchased ground for the erection of anew one.</p> <p>Nor was it necessary, that the contract between the commissioners and the vendor, should contain a stipulation, pledging the proceeds of the sale of the old jail, for the payment of the ground purchased*</p>

In Error. IT appeared from the record of this cause, on the rerr , turn of a writ of error to Westmoreland county, that it was an action on the case, on a parol contract, by which the fendant, Mathew MlClenachan, promised the plaintiff, WilHam Campbell, to permit him to take as much timber from land purchased by the defendant from the plaintiff, as be sufficient to build a boat to go down the Ohio.

In Error. EJECTMENT in the Common Pleas of Westmoreland County.

<p>In Error.</p> <p>THE declaration in this case, which was removed to this ’ Court by writ of error, from the Common Pleas of Westmoreland county, set forth, that the defendant, James Murray, on the 16th September, 1815, with force and arms, at the county aforesaid, made an assault on Sarah Logan, then and yet being, the daughter and servant of the plaintiff, Margaret Logan, and the said Sarah, then'and there did beat, wound, and ill treat, and did debaüch, carnally' know, impregnate, and get with child, whereby the said Margaret, lost the comfort and service of the said daughter for a long time, to wit, from the time aforesaid, until the sueing of the writ in the present case, and was put to great labour and expense in maintaining and taking care of the said Sarah during her lying-in of the said'child, and other enormities to the said Margaret did, against the peace, &c.</p> <p>Sarah, the daughter, who was above the age of twenty-one years, when the alleged injury was done, resided with her father, and had the direction of his household affairs until his death, on the 28th November, 1815. After the death of her father, she resided with her mother, who became the head of the family, and at whose house she was .delivered of the child on the 2d June, 1816 ; after which, she was never well. She remained with her mother, by whom, both she, and her child were supported, until January, 1817, when she died.</p> <p>The President of the Court of Common Pleas, (Young,) charged the jury, that upon the facts given in evidence, the present suit could not be supported; to which opinion, the counsellor the plaintiff excepted.</p> <p>assuming the fact, that the defendant had had criminal connection with the plaintiff’s daughter, and that the plaintiff had sustained damage in consequence of it, insisted, that although no case precisely similar to this was to be met with in the books, the plaintiff must be entitled to recover, or there would be a failure of justice. The well known maxim of the law, he said, was, that for every injury, a remedy was provided, and as no other person than the plaintiff, could support an action for these injuries, the weight of which had fallen upon her,it followed, that she was entitled to sue. Though the form of action usually adopted on such occasions is trespass, yet in effect, the action is case, the injuries sustained being consequential; and Courts, with great propriety, have gone considerable lengths, and shewn much liberality in applying a remedy for injuries of so deep and delicate a character. Though the foundation of the action is the supposed relation of master and servant, the slightest evidence of service is sufficient, where the daughter resides with the parent, and has arrived at years of maturity. An action will lie for debauching an adopted daughter.—Evidence may be given, of the mental pain and affliction suffered by the parent.—And an action may be maintained by the father, for the lying-in expenses, &c., of his daughter, though she did not reside with him at the time of the seduction. 1 Bl. Com. 445. 3 BL 143. 2 Chitty’s PI. 237. note. Salk. 206. Brown Ux v. Gibbons.(a) 3 Woodison, 252. 1 Tidd’s Prac. 6. Martin. v. Payne,(b) In the case of Postlethwaite v. Parkes,(c) which seems to bear more than any other against this action, the daughter had left her father’s house, worked for herself, and at the time she was debauched, lived at foreign service, and did not return to her paternal roof until a short time before her confinement, after which she boarded with her father as a common boarder.</p>

<p>In Error.</p> <p>ON a writ of error to the Common Pleas of Westmoreiand county, the record presented the following case.</p> <p>. An action of ejectment was brought in the Court below, by Alexander Plumer, against Andrew Robertson and John W. Sloan, for a house and other property, in Robbstoxun. * í l ^ ' Both the plaintiff and the defendants, claimed under John Hill, who being seised in fee of the premises, executed a mortgage to Robertson, one of the defendants, dated 1st Fe-binary, 1808, which was recorded on the 30tb of the following March. This mortgage was for the security of Robertson, against the payment of 690 dollars, for which he had bound himself as surety for Hill, to a certain Moses Babout, “ to be paid in six equal annual payments, to commence on the 1st April, 1808 and also as security for the sum of 910 dollars, which had been lent by the said Robertson to HUI, and was to be paid on demand. On the 1st April,il 1 1 7 1809, articles of agreement were executed between Hill and Robertson, by which Hill agreed to sell all his interest in the mortgaged property to Robertson, for the sum - ,- - j- - , , ,. ,, ’ to give him immediate possession, and to deliver him a deed pf conveyance, on or before the 8th day of the same month of April. It was agreed, that from this sum of g 1250, were to be deducted, the amount of the money due to Robertson on the mortgage, and also, all money which Robertson had paid, or made himself responsible for, on Hills account. On the back of the article was written Hill’s receipt to Robertson, for 1124 dollars 92 cents, the amount of what was due J . 7 ón the mortgage, in part payment of the purchase money mentioned in the articles. Immediately after the execution of this agreement, or some time before, (the evidence ón . w t ,. > this point being not quite clear,) possession was delivered to Robertson, who has held it by himself or his tenants, ever since. These articles of agreement were written by Joseph Vankirk, a tavern keeper, on one of the leaves of his book of accounts, and remained there until about the 19th April, 1815, when they were cut out of the book, and proved by one of the subscribing witnesses. On the 21st April, 1815, they were recorded. The defendants gave parol evidence, tending to prove, that ■Robertson's purchase of the mortgaged premises, was talked of and generally known in Robbstown, and the neighbourhood. Robertson issued a scire facias on the mortgage, to November Term, 1814, against Hill, (who had removed some time before, to some place down the river Ohio,) and one Gamble, the tenant in possession. This scire facias was returned nihil, as to Hill, and made known. to Gamble. An alias scire facias issued against Hill, and the suit was continued till May, 1816, when it was discontinued. On the 1st April, 1815, pending these proceeding, Alexander Plumer, the plaintiff, obtained, in consideration of 110 dollars, a conveyance from Hill, of the mortgaged property, which was recorded 11th April, 1815. The plaintiff gave parol evidence of declarations made by Robertson, that he claimed the premises under his mortgage, and intended to have them sold by virtue of the mortgage.</p> <p>After the evidence was closed, and the counsel on both sides had concluded their remarks to the jury, the President of the Court of Common Pleas delivered the following charge.</p> <p>“ The plaintiff and defendants, both claiming title under John Hill, the question is, whether the plaintiff has a prior or better title than the defendant, Andrew Robinson. The plaintiff claims under a deed executed by John Hill, dated the 1st April, 1815, and recorded on the 11th day of the same month, subject to a mortgage to the defendant executed on the 1st February, 1808. The plaintiff has also given testimony to shew a tender of what was considered the amount of the principal and interest due on the mortgage, and that the defendant declined accepting the money tendered. Were there nothing else in the case, viewing it but as a security, the plaintiff having the legal title, would be entitled to recover, and the defendant’s only remedy would be upon the mortgage, to enforce payment of the money due to; him.'- Hill, the mortgagor, although strictly speaking having but an equity, is considered the owner, as having the large? share of the estate, until foreclosed by a decree or judgment, and this estate may be granted or or sold like any other property, subject to prior incumbrances, whether by mortgage or judgment. The defendant, for the purpose of shewing a prior title to that of the plaintiff, has given in evidence, an article of agreement between John Hill and himself, for the absolute sale of the lots in dispute, dated the 1st April, 1809, and, a possession delivered the sam.e day, in pursuance of that contract which has been ever since kept up by him through his tenants. Viewing it as a fair contract, and there is no presumption to the contrary, if the plaintiff had either actual or constructive notice of it, he ought not to recover, and the grant by Hill to him can be of no avail. But if he had neither one kind of notice nor the other, he is entitled to your verdict. There has been no testimony of express notice, but it has been proved by some of the witnesses, that the agreement between Hill and Robertson, was talked of and generally understood in that place, and that ■the latter acted as the owner of the property, part of which was for some time occupied by a person as a tenant under a lease by Robinson to one Wright, which person has been admitted to be a partner of the plaintiff, in the purchase from Hill. It appears, that Hill continued some years in the vicinity of the place, was embarrassed, and finally removed to the State of Ohio, without discharging some of his debts. The case so far, presents strong presumptive notice of the contract between Hill and Robertson, but for the suit on the mortgage, which was instituted previous to the deed from Hill to the plaintiff, as to require that caution on his part, which a prudent person ought to exercise, when the rights of others, as well as his own, are likely to be'affected. Our act of assembly, indeed, requires the recording>of deeds . within six months, for the purpose of preventing fraud ; but. when possession is taken under a fair contract, it is equivalent to a compliance with the terms of the act, and thefirst purchaser complying with the terms of the contract, can hold against a subsequent one, notwithstanding the deed of the latter be first recorded. The principal difficulty arise's from the bringing suit on the mortgage. It is alleged to have been brought under a mistake or misapprehension by the defendant, of his rights ; but if the testimony of some of the witnesses adduced on the part of the plaintiff be correct, and there is little reason to doubt it, the defendant laid no claim to the premises, but through the mortgage. No intimation appears to have been given of the articles of agreement lodged in the hands of Joseph Vankirk, who was not called upon to prove them for the purpose of being recorded, until the deed to the plaintiff had been on record. The suit on the mortgage, accompanied by the defendant’s public declarations, may, for aught there appears to the contrary, have induced the plaintiff to make the purchase from Hill. Here then you have one presumption against another. I am at a loss to discover any particular merit in either of the parties, and I feel unwilling to impute fraud to either of them. The plaintiff has the legal title, subject to the principal and interest due on the mortgage. The defendant had an equitable one, under the articles with Hill but if the plaintiff had no notice of it, and if the defendant, Robertson, can be considered as having waved all claim under these articles by his own acts and declarations, the equity is at an end; law must prevail. But we leave it to you to say, whether the proceedings in Court, and the defendant's declarations, amount to a waver of his former equity or not. I do not feel disposed to give any opinion as to that point. It seems rather a question of fact, than of law.”</p> <p>To this opinion, a bill of exceptions was tendered by the plaintiff’s counsel, and sealed by the Court.</p> <p>denied that there was any notice proved in this case, either actual or constructive, by which his title could be affected. The possession of Robertson was not notice; it was susceptible of explanation. An absolute conveyance, may be explained .by the conduct of the grantee, who does not enter but receives the interest on his money. Powel on Mortg. 199,200. And a mortgagee coming into possession, is accountable for the profits. 1 Eq. Ab. 328. The only instrument on record at the time the plaintiff purchased, was the mortgage. To this he would naturally recur to ascertain the nature of the possession, which being consistent with the mortgage, would lead him to the rational conclusion that the profits were to be applied to the discharge of the debt. He might therefore, with good conscience, purchase the equity of redemption. Nor did he receive notice from any other source. Public rumour is not, as the Judge declared, a circumstance, from which notice might be inferred. Actual notice must be given by a person interested in the property, and in the course of the treaty for the purchase. Vague reports from persons not interested in the property, will not affect the conscience of a purchaser. Sugden, 532. (2d Am. Ed..} Nor is a tenancy under a third person, constructive notice to a purchaser, of the lessor’s title. Sugden, '544. (2d Am. Ed.} The Court were therefore wrong in saying, that the possession of Robertson, and the rumours in the neighbourhood, amounted to constructive notice, but for the scire facias and the declarations of Robertson that he claimed un^ler the mortgage.</p> <p>The institution of proceedings on'the mortgage, together with the declarations of Robertson, amounted in point of law, to a waver of his title under the articles of agreement 5 and so the law should have been laid down to the jury. If a mortgagee has a decree of foreclosure, and proceeds oit other security, it opens the foreclosure and lets in the equity of redemption of the mortgagor. 1 Eq. Ab. 3If. If the mortgagee gets an absolute deed, but suffers the possession to, remain for some time in the mortgagor, it is a relinquishment of the deed. 2 Eq. Ab. 591. Several cases of the same kind, are to be found in 5 Bac. Ab. 6. (Wils. Ed.} So here, the mortgagee, notwithstanding the articles which are kept entirely out of view, goes into possession under the mortgage, declares that he holds in the character of mortgagee, and institutes proceedings on the mortgage, for the purpose of recovering his money ; thus abandoning his alleged title under the articles altogether. At all events, whether or not this title was waived, was matter of law, of which it was exclusively the province of the Court to decide, and they erred in submitting it to the jury.</p> <p>By the mortgage, the legal title was in the mortgagee, and the plaintiff bought only the equity of redemption, which, in consideration of money paid independently of the mortgage, had been released to Robertson, who, by virtue of that release, as we contend, had been in possession many years before the plaintiff purchased. This possession, was matter °f conversation throughout the neighbourhood, was notori0us, and must have come to the knowledge of the plaintiff, who lived in the same town. Seeing Robertson thus openly in possession, it was his duty to apply to him, in order to ascertain under what title he held; for there is no evidence, that he ever heard of his declarations, that he held under the mortgage. Nor was it a natural inference that he did so, because, as the mortgagor usually retains possession of the land, the possession of Robertson was inconsistent with the mortgage.</p> <p>It was contended on the trial that Robertson issued the scire facias in order to complete his title, Hill having gone off without executing a deed ; and .that the plaintiff took advantage of this, and purchased the property under the idea that Robertson had committed himself. This involved matter of fact, as well as of law; and the Court did right in leaving the jury to determine, whether the scire facias was issued by Robertson through a misapprehension of his remedy.</p>

Barbara Klingenberger, made complaint by petition in writing against her husband; Frederick Klingenberger, charging him with cruel and barbarous treatment, whereby her condition was rendered intolerable, and she was forced to withdraw from his house: and praying a divorce from , * r bond of marriage, and an allowance or alimony. She after-wards made a specification of the particular acts of ill treatment of which she complained.

In Error. THE defendant in error, the plaintiff below, in order to support his action of ejectment in the Court of Common Pleas of- Westmoreland county, gave evidence of an ment and actual settlement.

<p>IN ERROR.</p> <p>WRIT of error to the Common Pleas of Westmoreland county, in which Court, Hugh Blair, the plaintiff below, , V . brought an ejectment to recover a tract or land, the title to which he claimed under a warrant to James Blair, his brother, dated 11th January, 1790, for S60 acres, including an improvement on the south. side of Kiskaminetas, adjoining David MiKee, John McConnell, George Hutchinson, and James Chambers, in Washington ■ township; interest from lst March, 1715. On this warrant, a survey was made for the plaintiff, on the 30th of March, 1792, by John Parker, the assistant deputy surveyor, of 695 acres, including the land in dispute. It was provéd on the trial, that in the year 1774, James Blair had a good improvement within , J , . , , . , , ° , 1 , . this survey, on which he resided until he was driven oil by the Indians during the revolutionary war, at the close of which he returned and resumed his residence, which . , , . , _ contmued until a short time before his death in the year 1791. He always claimed down to the mouth of Beaver creek, near which there was said to be a mill seat, and the boundaries of his claim, or some of them, were ascertained by natural marks and by consentible lines between himself and his neighbours. After his death, the land was occupied by the tenants of the plaintiff, who it was admitted was his heir at law, a number of years, except for a short period during which one Ichabod Price got into possession. The plain tiff afterwards moved on it himself, and continued to reside there until the commencement of this suit. When Naricr was making the survey for the plaintiff, who was present and directed it himself, one of the neighbours spoke of so much rough land being taken in, on which Parker observed, that quantity was a good thing, and when Blair wanted to sell, an acre of that land would sell for as much as an acre of the best land he had, and then proceeded with the survey.</p> <p>The defendants’ title was founded upon a warrant in the name of Joseph Dobbin, dated 7th May, 1792, for 200 acres on the south side of Kiskaminetas river, above the mouth of Beaver run, adjoining land of James Blair on the south, and James Walker on the west, in Washington township. On the 15th November, 1796, a conveyance was executed from Joseph Dobbin to John Kirkpatrick, who, together with Parker, the assistant deputy surveyor, it appeared was originally interested in the warrant, and in April, 1814, a survey was made for Kirkpatrick, of 250 acres, the land now in dispute, by James Murray, the deputy surveyor, who swore, that when he made it, he had the diagram of Blair’s survey in his hand, and executed Dobbin’s warrant, as nearly according to the description as he could without injuring Blair, whose improvements lay convenient to the line of division. On the part of the land included in Kirkpatrick’s survey, Blair had no improvement, and it appeared, that part contained more rough land than the residue left to Blair, but the good land embraced by his survey was superior to any Blair had, and lay near and convenient to his improvements. On the 2d May, 1814, Kirkpatrick entered into articles for the sale of this land to William M'-Kee, one of the defendants.</p> <p>After the Court had delivered to the jury a charge unfavourable to the plaintiff’s title, his counsel submitted the following points on which he requested their opinion.</p> <p>1. That the survey of the plaintiff is a good and valid survey under the laws and usages of Pennsylvania.</p> <p>2. That said survey is not void, and if voidable, can only be avoided by an application to the surveyor general or Board of Property for a re-survey thereof.</p> <p>3. Until a new survey under proper authority was made on Blair’s warrant, it was not competent to the deputy surveyor to make a survey on the warrant in the name of Joseph Dobbin, within the bounds of the survey actually made on the ground for Blair, on his warrant, and without his knowledge and consent.</p> <p>,4. That it was not competent to the defendants or those under whom they claim, to enter into or upon any part of the land within the plaintiff’s survey at their election and pleasure without his consent, and that, therefore, the plaintiff is entitled to recover in this action.</p> <p>5. That if the jury believe the assistant deputy surveyor was guilty of a legal fraud in making the survey for Hugh Blair to include so large a quantity of land, particularly as it included a considerable quantity of rough, hilly land, with a view of afterwards taking out a warrant for a part thereof of a better quality, said warrant will give no title to the assistant deputy surveyor, or any other person concerned with him or claiming under him, with notice of Blair’s survey or claim.</p> <p>6. That if said survey for Hugh Blair was not a valid survey in law, so as to give him a good title to all the land included therein,—he nevertheless would be entitled by virtue thereof, to hold the amount contained in his warrant, with the additional allowance of ten per cent., besides the usual allowance for roads, to be laid off at his election, before any legal appropriation could be made of the residue;—and the right of making this election was not vested in the deputy surveyor, or those for whom he made the survey on the warrant in the name of Joseph Dobbin, to survey the same where they pleased out of Blair’s survey, without his knowledge or consent.</p> <p>7. That if Blair’s survey be not valid, so as to give him a title to the whole land included therein, the jury may find for the plaintiff, so much of the land surveyed to the defendants,, as the plaintiff would have been legally entitled to have surveyed to him on said warrant, to be laid off in such form, and in such part of said land, as will be most beneficial and convenient to him;—and that the jury are not bound by the lines of the survey made on the warrant of Joseph Dobbin.</p> <p>To these propositions the following answers were given.</p> <p>1. The survey under which the plaintiff claims, not having been either returned or accepted in the land office, is not good and valid either by the laws or usages of this State.</p> <p>2. The survey being invalid, and the person claiming under it having taken no step to procure the acceptance of it, or a re-survey, his defect of title arises from his own laches or neglect, of which he cannot take advantage.</p> <p>3. It is our opinion, that it was competent to the deputy surveyor to make a survey on the warrant in the name of Joseph Dobbin, within the bounds of the survey made on Blair’s warrant, without the consent or knowledge of Blair. So great an excess of quantity, has not been sanctioned in any Court. It would open a wide door for fraud and other evil consequences. When a person procures a survey to be made embracing so great an excess as that of the one in question, neither himself nor any one under whom be claims, can procure such excess to be excluded within a reasonable period of time. The right of the Commonwealth or its citizens ought not to be prejudiced.</p> <p>é. It was competent to the defendants to enter; we do not say any part of the land embraced in the large survey of 69S acres, but after the survey on the latter warrant, which it appears was then all wood land, they could lawfully enter into that part of it—They entered under a prima facie good title, and this is sufficient until,a better one can be shewn.</p> <p>5. There seems no solid ground for imputing a legal fraud to Mr. Parker, the assistant surveyor. It appears the survey was conducted by the warrant holder himself, and although Mr. Parker was afterwards to have an interest in the warrant of Dobbin, it cannot with any propriety be alleged he was guilty of a legal fraud in making a survey for Blair, under his own direction. But were it possible to infer such a fraud, the plaintiff is not entitled to recover the land in question. It now appears, that one of the defendants agreed to purchase it; he paid a part of the price, and took possession without the least notice of the alleged fraud ,• so he ought to be viewed as an innocent purchaser. The warrant in the name of Dobbin, with the survey thereon, afford, we do not say a title to the defendants, but a sufficient defence against the claim of the plaintiff, under the evidence adduced in support of it.</p> <p>6. Whether the plaintiff be entitled to the quantity of acres mentioned in the warrant, with ten per cent, allowance, and six per cent, more for roads, is not now a fit subject for consideration. If he thinks proper to have a survey made in this way, I conceive he will have no right to lay it off as he may please.—This might have been done, but suffering so long a time to elapse, it may be presumed that he will not now be permitted to do this, to the injury of other citizens. Neither had the deputy surveyor, or those for whom he made the survey, a right to survey where they pleased within the bounds of the survey made for Blair, without his knowledge or consent. If the survey made on the junior warrant has interfered with the right of Blair, on a complaint to the surveyor general, either he, or the Board of Property, it may be presumed, will, on hearing the parties, afford redress.—.If they should not, the law is open to either party, and a jury, perhaps a special jury, on a view of the premises, can direct the lines of the survey to be run as they ought to be, or rather as they ought to have been.</p> <p>7. As we have already declared our opinion, that Blair’s survey is not valid so as to give him a title to the whole land included therein, and that he is not entitled to recover in the present action, any further instructions to you on this point appears superfluous. I have already intimated that the lines of the last survey are not conclusive upon the plaintiff. They would be by no means binding on you if the plaintiff had shewn a valid survey, or one that would entitle him to have the whole survey, or even the land in question.—When the plaintiff shall, if he think proper, bring forward such a survey, one that is sanctioned by the laws, he will be entitled to it. It is enquired, if you, the jury, may not find for the plaintiff so much land as he would be legally entitled to, to be laid off in such form, and in such part, as will be most beneficial and convenient to him.—Such a verdict would be useless, vague, and uncertain, and no judgment could be recovered on it.</p> <p>On the removal of the cause to this Court, it was contended by Alexander and Foster, for the plaintiff in error, that he was entitled to the whole quantity of 695 acres embraced by his survey. The proprietary order of May 1st, 1767, forbidding deputy surveyors to return a greater surplus than ten per cent., and the usual allowance for roads, beyond the quantity of land mentioned in a warrant or application, was not adhered to in practice, and a great number of valuable titles depend upon the validity of surveys comprehending a much greater excess. These titles are not only upheld by a general practice, but have in many instances, received the sanction of judicial decision. In the Lessee of Steinmetz v. Toung,(a) it was decided, that a survey of 288 acres might legaily be made on a warrant for 100 acres; and Judge Smith, whose personal acquaintance with the subject is well known, kore testimony in his charge to the jury, of the generality of the practice, and its recognition and adoption by the land office. In the Lessee of Reaves v. Edwards,(b) the plaintiff recovered on a survey of upwards of 386 acres, made on a warrant for 400 acres. In Merchants Lessee' v. Millison,(c) the defendant’s title rested on a survey of 900 acres, on two warrants of 300 acres each. It was proved by the testimony of several surveyors, that the practice since the revolution had been, to return even double the quantity of land mentioned in the warrant, and although the Court doubted whether the land office was bound to accept the return of so large a surplus, yet the defendant had a verdict. In Cluggage v. The Lessee of Duncan,(d) it was no objection to a survey of 441 § acres, that it was made on application for 300 acres. ' In the Lessee of Pickering v. Rutty,(e) more than 1105 acres were surveyed on a warrant for 1000 acres. In the Lessee of Cherry v. Robinson,.(f) on an application for 300 acres, 337 7-8 were surveyed. In the Lessee of Sherer v. Mi,Farlcpid,(g) no objection was made to a survey of 318 acres, on a warrant for 200 acres. Nor in the Lessee of Dougherty v. Piper,(h) was any objection made to a survey of 334 acras, because it was made on a warrant for hut 200 acres. In the Lessee of Correy v. Caxton,(i) the warrant called for 200 acres, and the survey contained upwards of 228 acres. In the Lessee of M ‘Clay v. Work,(k) though the warrant was for 275 acres only, the survey embraced 412 acres; and in Werdman v. Felmley,(l) 79 9-10 acres were surveyed, on a warrant for 50 acres. In the case of Caufman v. The Presbyterian Congregation, &c.,(m) which bears a close resemblance to this, the location was for 200 acres, on which a survey was made for 332 acres and 81 perches. The plaintiffs recovered, though the deputy surveyor objected to returning so large a surplus, and surveyed and returned a part of the original survey, consisting of the best land, on a location taken out by his own advice, by the person under whom the defendant claimed.</p> <p>The order of the proprietaries may therefore be considered as abrogated, by the almost universal practice of disregarding it, and by the decisions of our own Courts. Nor does the act of 8th April, 1785,(a) form any obstacle to the plaintiff’s recovery. That act, which confines the excess to be surveyed beyond the number of acres mentioned in the ■warrant, to ten per cent., was made with reference to a particular district of country then recently purchased of the Indians, and its provisions have been decided not to extend to any other part of the state. It was so determined, in relation to the question of surplus land, in the Lessee of Steinmetz v. Young, already cited, in which M'-Ginnis's Lessee v. Albright, is referred to by the Chief Justice, as establishing the point; and in relation to another question, in Wright's Lessee v. Wells,(b) and in the Lessee of Harris v. Monks.(c) That act therefore, does not reach this case, for the land in dispute lies in the old purchase.</p> <p>If, however, the survey was not good for the whole, it was not void, and no one had a right to enter until it had been rejected by the land office. Blair was entitled to at least 400 acres, and the usual allowance, and could not be deprived of the most valuable part of his land at the pleasure of the deputy surveyor, whose duty it was to have returned the survey. His not having done so was his own fault, and the plaintiff is not to be prejudiced by his neglect or misconduct. Lessee of Drinker v. Holliday.(d) The jury might have given him as much as they thought him entitled to.</p> <p>The conduct of the deputy surveyor was fraudulent, and the defendants cannot prevail by virtue of a title derived through fraud. It was owing to his suggestion that Blair included so large a body of land in his survey, and he after-wards surveyed and cut off,, on a warrant in which he was himself interested, a large portion, including some of the best land on the tract, and lying most convenient to Blair’s improvements; the part too which most accurately answered the description in the warrant, and of which Blair had been in constant possession. From these- facts the jury might, with great propriety have inferred fraud, and whether the defendants had notice of it or not, was of no consequence, for Kirkpatrick, the real defendant, had paid only a small portion of the purchase money. If however, notice was material, it ought to have been left to the jury to determine, whether or not it had been given.</p> <p>There is another ground on which the plaintiff was entitled to recover. He had a warrant, an extensive improvement, and a long possession, and these were sufficient to entitle him to a verdict.</p> <p>Blair’s survey was made under his own direction; it contained more good land than that made on Dobbin's warrant, which took no land between Blair and the river, and he has his full quantity in a convenient shape. As to the mill seat, if there was one, it could not belong to Blair, because the creek was the boundary between him and Chambers, and belonged equally to both. It is impossible he should have the whole of his large survey of 695 acres; he must be restrained to one end of it or the other, and his intention to go to the full extent of the end he holds, appears from his warrant, and from his consentible lines in that part of the survey. He had no right, by virtue of his improvement, to go to the mouth of Beaver creek, which would not only make the survey too large in quantity, but of an irregular and inconvenient shape.</p> <p>I deny that the land office are bound to accept a survey of 695 acres, on a warrant for 360 acres, or that they ought to accept it. All the cases which have been cited on the opposite side may be referred to one of the following classes, to none of which the present case belongs. 1st. They were surveys before the proprietary order of 1st May, 1767. 2d. Surveys which had been returned and accepted, and no third person was concerned. 3d. Surveys, in which the quantity of surplus was trifling. 4th. Cases in which there was manifest fraud in the deputy surveyor, or the persons connected with him, and in which the fraud was corrected in a reasonable time. In Merchant’s Lessee v. Millison, there was clear fraud. Possession was taken immediately, and application was made to the land office to correct the fraud. In Gaufman v. The Presbyterian Congregation, 8?c., there was fraud also. The congregation took possession and built a parsonage house on the disputed part. They were not informed of the manner in which the surveys were returned, and the part cut off from the original survey, answered best the description of the plaintiff’s location, and contained much the best land. Besides, the warrant was prior to the 1st of May, 1767. Here, Blair had only constructive possession of the land included in Dobbin’s survey* It was woodland, on which there were no improvements. His survey, moreover, was made by the assistant, and was never recognised by the deputy surveyor himself. In adverting to the practice in relation to this subject which prevailed before the year 17G7, the Chief Justice, in the case of Kyle’s Lessee v. White, declares, that at this day, such an objection to a survey would be decisive ; and Judge Brack* enridge, in the same case, expresses his opinion strongly against such surveys. The proprietaries, being owners of the soil, had a right to do as they pleased with it; but the rules which they thought proper either to enforce or to relax, can have no influence on the Board of Property under the Commonwealth, who have ho right to accept a survey contrary to the spirit of acts of assembly.- The act of Aprils 1785, it is true, has been held not to apply to lands within the Indian purchase of 1768, but it tends strongly to mark the sense of the Legislature and of the country with respect to surplus land. And although in the acts of 2d April, 1811,(a) and of 13th March, 1817,(b) there has been a partial departure from this policy, yet the interests of those who had previously acquired rights by warrant or improvement were protected. In this case, Blair’s large survey has never been returned and accepted, and therefore cannot interfere with the defendants’ title.</p> <p>With respect to the allegation of fraud, if any existed in the Conduct of the assistant deputy surveyor, it cannot affect MlKee, the defendant, who purchased without notice of it, has made improvements, and has paid part of the consideration money.</p>

<p>A paper signed by a clerk, stating that at some previous time he had received certain goods, . being more m the natureof a certificate than a receipt, is not evidence.</p>

In Error. WRIT of error to the Common Pleas of Allegheny county. in the lower Court, it was an action on the case brought , r . -r » by Robert Marmitón and Margaret his wire, against Joseph Irwin, on a parol contract made between Irwin, and Samuel Robinson, deceased, for the sale of twenty four acres of land by Irvoin to Robinson, for the sum of twenty four pounds lawful money of the United States.

The judgment in this cause having been reversed and restitution ordered, M '■Donald obtained a rule to shew cause why an attachment should not issue against the defendant in J . error, for disobeying the order of the Court to make restitution. opposed the attachment, and said,that when iudgment was reversed and restitu- ’ , ’ • , . tion ordered, the practice had been to issue a writ or restitutlon- He referred to Sellon's Pr. 729, 730,.and act of 11th March, 1809, s. 4. 5 Sm.

In Error. •WRIT of error to Mercer county in an ejectment, in which Frederick B'olard, the defendant in error was plaintiff, and Christian Motz, defendant. On the trial of the cause, the defendant offered in evidence a copy of a warrant in the name of Thomas James, dated 21st April, 1794, on which a survey was made by Benjamin Stokely, the deputy surveyor, to whom it was directed by the surveyor general.

<p>In Error.</p> <p>ON the return of a writ of error to the Common Pleas . . of Fayette county, it appeared, that this was an action on the case for a nuisance, brought by William B. Irish and the plaintiffs below, against Israel Gregg, the defendant, to try the validity of a lease of certain ground in the town of Bridgport, made by the burgess and council of the said town, to the defendant. The facts on which the case turned, ^ tnese.</p> <p>Rees Cadztiftlader, the original proprietor of the town of , , , , . . r . Bridgport, made, by deed, an appropriation of a certain peice of ground in the said town, of which the demised premises were a part, “ to be applied only for public uses, for the benefit of the present and succeeding inhabitants of the said town forever, to be by the proprietors of lots in the said town applied or improved in the persons of their delegates or trustees, or otherwise, as a majority of the said inhabitants may from time to time order and direct, and for no other use, intent, or purpose, whatsoever.” The town having been mcorporated by act of assembly, subsequent to the making of the deed of appropriation before mentioned, the burgess and f , . . ’ _ ° . council, with the consent and approbation or a majority or the lot holders and inhabitants, made a lease of part of the appropriated ground to the defendant, for the term of ten years, in consideration of which, he agreed to build a frame warehouse of certain dimensions, to be underpinned with stone, which at the expiration of the term, was to be delivered in good order to the said burgess and council.</p> <p>The plaintiffs, who were seised in right of the wife, of certain lots in the town of Bridgport, under the will of her father, Rees Cadxvalader, and whose consent to the lease had not been obtained, brought this suit against the defendant for occupying the public ground. The Court of Common Pleas were of opinion, that the burgess and council had no authority, even with the consent of a majority of the lot holders, either to sell or let any part of the premises thus granted for public uses, to an individual for his private and separate use, and that therefore the lease to the defendant was void.</p> <p>This opinion was excepted to by the counsel for the defendant, at whose request it was filed of record.</p> <p>contended, that the lease in question was within the scope of the power given to the inhabitants of Bridgport, by the deed of appropriation. It was granted for the benefit of the inhabitants, and they were the best judges of what would be most conducive to their benefit. The naked, unimproved land, was of no value to them, and that the erection of a warehouse was the most elligible mode of improvement, was testified by the approba-i tion of a majority of the lot holders. A rent, was undoubtedly for their benefit, and building a warehouse which they were to receive at the expiration of the term, was in the nature of a rent.</p> <p>denied that an unlimited power of disposing of this property was given to the inhabitants. It was to be held only for public purposes. A lease, during its existence, takes away all use of the ground from the inhabitants, as effectually as a sale ; and if a lease for ten years be valid, one for a hundred years would be equally so.</p>

<p>In Error.</p> <p>EJECTMENT in the Common Pleas of Cumberland , COUnty.</p> <p>. . „ The facts, so far as it is necessary to state them, appeared to be these. John Carothers and others, the plaintiffs in the lower Court, made title to the-land in dispute, which consisted or 240g acres in' West Fennsbury township, under William Carothers, decease,d, by whom it was devised to them. They gave in evidence, an application in the name of jo 7ii William Carothers, dated 21st May, 1768, for 300 acres, and a warrant to the same William Carothers, dated 28th December, 1770, for 100 acres. The defendants, Henry Miller and Robert Blain, claimed under an application for 250 acres in the name of James Byers, dated October 8th, 1766, on which a survey was made for Ephraim Blain, comprehending the land in dispute. This survey was made, either in the year 1787 or 1798, it was uncertain which, and returned in the year 1800. On the return it was noted “ that the land was disputed by the heirs of William Carothers, junr., who claimed under an application for 300 acres, dated 21st May, 1768, and a warrant for 100 acres, dated 28th December, 1770.” The plaintiffs offered in evidence, a draft of a body of land amounting to 1492 acres, said to be claimed by them in right of William Carothers, having first proved that the draft was the work of Samuel Lyon, deputy surveyor, (who it was admitted, was at the time the brother in law of Ephraim Blain,) and was found in the office and among the official papers of the deputy surveyor of the district. On the margin of this draft was written, in the hand writing of Samuel Lyon, “ Surveyed November 18th, 1791.” Several interferences with the lands of Carothers were noted on the margin, but the defendants’ interference was not mentioned. To this evidence, the counsel for the defendants excepted, but the Court admitted it, and an exception was taken to their opinion.</p> <p>The plaintiffs produced a paper purporting to be the testament and last will of William Carothers, junr., to which there were three subscribing witnesses, one of whom only, John Kean, had appeared before the Register of Wills, and proved it by his oath, in the ordinary form, and was since dead. Armstrong Carothers, another of the subscribing witnesses, was a devisee of part of the land in dispute, and one of the plaintiffs in this suit. James Carothers, the third subscribing witness was dead. After having proved the death of John Kean and James Carothers, and that due diligence had been used, in vain, to find a witness who could prove the hand writing of James Carothers, the plaintiffs offered to prove the hand writing of the testator. The counsel for the defendants objected to the evidence, but the Court admitted it, and upon this proof, together with the oath of Kean before the Register, permitted the will to be read to the jury, which had likewise been opposed by the defendants’ counsel. On both these points bills of exceptions were sealed.*</p> <p>Our objection to the draft admitted by the Court below is, that although found in the - office of the deputy surveyor, it was a private unauthorised survey, which was probably •placed in one of the pidgeon holes of the deputy surveyor, and accidentally handed over to his successor. It comprehends lands previously surveyed for other persons, as well as those claimed by Car others, and bears on the face of it no mark of having been an official act. No case hitherto decided in Pennsylvania, has gone so far as to authorise the admission of such evidence. It differs from the case of the Lessee of Funston v. McMahon, 2 Teates, 245, because the evidence there admitted, was merely corroborative. It differs from the case of Shields’s Lessee v. Buchannan, 2 Teatess 219, because there the survey had been returned and accepted. It differs materially from the case of Sprout v. Plumsted’s Lessee, 4 Binn. 189, because the evidence there was of a rebutting nature. In the case before the Court, the draft was offered as part of the plaintiffs’ title, and there is a wide difference between evidence of that description, and evidence, the object of which is to do away the effect of adverse testimony. Although the plaintiffs had given in evidence a location and warrant, yet there is nothing by which they can be connected with the survey, nor was there any evidence that Lyon, the deputy surveyor, knew of their existence. It was a survey unsupported by a warrant or any other authority that can be discovered, and therefore was no validity. Cosby v. Lessee of Brown. 2 Binn. 128. Lessee of Sims v. Irvine.. 3 Dali. 457. Lessee of Harris v. Monks. 2 Serg. Es? Rawle, 559. Lessee of M'-Kinzie v.Crow. 2 Binn. 105. Lessee of Steinmetzv. Toung. 2 Binn. 520. Nicholas v. Holliday. 2 Sm. L. 257. Lessee of Evans v. Nargong. 2 Binn. 58. Lessee of Miles v. Potter. 2 Binn. 70. Carnahan v. Hall. Addison, 130. Lessee of Gripe v. Baird. 3 Teates, 528. Lessee of Penn v. Klyne. 4 Dali. 408. Lessee of Galloway v. Ogle. Z Binn. 468. Jackson v. Witter. 2 Johns. 180.</p> <p>2. The admission of the paper said to be the will of William Carothers, was likewise erroneous. The act of 1705, Purd. 648, requires proof by two witnesses, which in this case was not supplied. Of the three witnesses who subscribed the alleged will, only one appeared before the register, and no letters testamentary were issued. This partial and defective probate was a mere nullity; and it was as necessary afterwards to prove the paper by two witnesses, as if the oath of -Kean before the register had never been taken. Instead however of doing this, after having endeavoured unsuccessfully to prove the hand-writing of James Carothers, one of the subscribing witnesses, the plaintiffs offered evidence of the hand-writing of the testator himself, which the Court admitted. We contend, that unless evidence were previously given that the other subscribing- witnesses were dead or out of the jurisdiction of the Court, and no proof could be obtained of their hand-writing, such evidence was irregular and inadmissible. The case of Clark v. Sanderson, 3 Binn. 192, encroached upon the rigour of the ancient law, by permitting evidence to be given of the hand-writing of the obligor, where the subscribing witness was beyond the jurisdiction of the Court, and his hand-writing could not be proved. Further than this it has never been relaxed, nor can it be, without endangering that safety which is to be found in an adherence to the settled and well founded rules of evidence. They cited also Havard v. Davis. 2 Binn. 414. Esp. N. P. 487. (New York Ed.)</p> <p>1. Was the draft evidence ? It was by no means so clearly a private paper as to justify the Court in deciding that it was not official, and therefore refusing it as evidence. It was found in the office of the deputy surveyor, which alone is sufficient to authorise its being received. Even a letter from an assistant deputy surveyor has been admitted to prove the property of a location. Lessee of Peterson v. Churchfield. M S. Rep. Whether it was official or not, was a matter of fact of which the jury were the proper judges. It was a survey purporting to have been made in the year 1791, when'no return had been made on Blair’s location in the name of Byers, and might have been made officially, with a view to ascertain for whom the survey should be returned; for the return of Blain’s survey in 1800, states, that the land was claimed by the heirs of WilHam, Carothers, junr., under a warrant for 100 acres, and a location for 300 acres. Thus it appears, that this warrant and application were in the hands of the deputy surveyor when he made the draft, and the inference is a fair one, that the work was done in, reference to them. We contended that the plaintiffs’ survey was made in the year 1787, and Blain’s not until 1798, and therefore it was competent to the plaintiffs to shew any acts of the deputy surveyor prior to the return of Blain’s survey, or at least prior to 1798, when we say it was made, in order to establish the fact, that the, survey in 1787, was really made for Carothers, though after-wards returned for Blain. A survey may be good, though nothing appear on its face to shew by what authority it was made, provided it be shewn to the jury that some authority existed. Sproul v. Lessee of Plumsted. 4 Binn. 189. The survey in question comes within this principle. The location of 21st May, 1768, and the warrant of 28th December, 1770, had been given in evidence, and it was the province of the jury to determine, whether the draft was made in pursuance of them. ' If it tended, either to establish the title of the plaintiffs, or to impeach the conduct of the deputy surveyor, who, it was contended, had improperly returned for another, the survey made for Carothers, it was evidence. It was evidence to shew, that he had prosecuted the right commenced under his descriptive application ; for even a void survey is admissible to shew that a location has not been abandoned. Lessee of Hubley v. White. 2 Teates, 138. Lessee of Funston v. Mahon. 2 Teates, 246. It was the opinion of Judges Yeates and Brackenridge, in the case of Lessee of Blaine v. Johnson, 3 Binn. 106, that the draft now in question, which having been discovered ,after the trial in that case was over, was one of the grounds of a motion for a new trial, was evidence to go to the jury.</p> <p>2. The will was well proved. Armstrong Carothers, one of the subscribing witnesses, was a devisee , and one of the plaintiffs in this suit. His oath or proof of his hand-writing was therefore out of the question. It was proved that Kean was dead, and evidence was given of his hand-writing. It was shewn that due diligence had been ineffectually used to procure proof of the hand-writing of James Carothers, and the hand-writing of the testator was proved. In addition to this, the oath of Kean, made before the register of wills, was adduced. If this will had been proved by two witnesses before the register, it would have been perfectly good evidence, and it will not be pretended that the law requires the witnesses to be sworn together. Why then should not the oath of Kean be a valid probate as far as it goes ? If that position be correct, then his oath before the register, together with the proof given in Court of the testator’s hand-writing, was proof by two witnesses, which is all the act of assembly requires. Proof of the testator’s signature alone is sufficient, where the subscribing witnesses are dead, or not within the jurisdiction of the Court, and no proof of their hand-writing can be obtained. Phill. Ev. 582. 4. Clark v. Sanderson. 3 Binn. 192. Hamilton v. Marsden. 6 Binn. 45.</p> <p>In another view of the subject the will was admissible. It was evidence as an ancient paper accompanying the possession and never disputed by the heir. An ancient will, like an ancient deed, may be proved by a long possession under it. Jackson v. Blanshan. 3 Johns. 292. An ancient will which has accompanied the possession thirty years, requires no proof. Shaller v. Brand. 6 Binn. 543. In the present case, twenty four years had elapsed from the time of the testator’s death before Blain recovered possession of the land in controversy, and thirty-one years before the time of trial. During this period it was never claimed by the heir at law, who on the contrary accepted a legacy given to him by the testator.</p> <p>The Court intimated to the counsel for the plaintiffs in error, that it was unnecessary to reply to the point, that this will, accompanying the possession of the Carothers’ family, proved itself.</p>

<p>In Error.</p> <p>IN the Court of Quarter Sessions of Bedford county, to which this was a writ of error, an indictment against Ethelston Scott, containing three counts, was sent to the grand jury. On the first, charging him with an assault and battery upon William Cessna, with intent to kill and murder, they returned ignoramus,</p> <p>The second was for an assault and battery, and stated, .... that the plaintiff in error, maliciously, wickedly, and unlawfully did bite or cut off the ear of William Cessna, and with a certain knife commonly called a pocket knife, the said J 4 William did stab and wound, on his left side and under the left arm of him the said William, so that his life was greatly despaired of, with intent, him the said William, wickedly, maliciously, and inhumanly to kill and destroy. On this count, as well as on the third, which was for a common assault and battery, the grand jury returned a true bill.</p> <p>The jury found the- plaintiff in error guilty, and the Court sentenced him to pay a fine of one cent, to pay the costs of the prosecution, and to be confined to the penitentiary house in the city of Philadelphia, for the term of three years, fed and clothed in the manner pointed out by the act of assembly in such case made and provided.</p> <p>The errors assigned, were in that part of the second count of the indictment which stated, that the plaintiff in error, did bite or cut off the ear, &c., and in the sentence passed by the Court.</p> <p>cited White v. Commonwealth, 1 Serg. Razóle, 139. Kramer v. Commonwealth, 3 Binn. 577. Act of 5th April, 1790. sec. 2. 2 Sm. L. 531.- Act of 4th April, 1807, 4 Sm. L. 393. Act of 2%d April, 1794, Purd. Ab. 362. 1 Hawk. C. 44. sect. 6. note. Stat. 37. H. 8. c. 6. 1 Bac. Ab. Asst. &? Btty. D. 4 Bl. Com. 217. 3 Burns's Jus. 257. 1 Chitty, 715.</p> <p>cited People v. Pettit, 3 Johns. 511. Lexvis v. Commonwealth,.2 Serg. & Raxvle, 551. Anonymous, 1 Str. 384. Rex v. Kinnersley, 1 Str196. 3 Chitty, 829. 1 East's C. L. 407. 411.</p>

<p>In Error.</p> <p>AN amicable action was entered in the Court of Common Pleas of Franklin county, in which the defendants in error were plaintiffs, and the plaintiffs in error defendants, and a case, of which the following is the substance, was stated for the opinion of the Court, subject to review on a writ of error, at the instance of either party.</p> <p>In the year , a bridge was erected at the expense of the county of Franklin, over West Conococheague where the public road leading from Chambersburg to London in the said county, crosses the said creek. The commissioners of the said county contracted and paid for the building of the said bridge, a large sum of money, viz., the sum § , and the necessary legal proceedings had been had in due form, to enable the said commissioners so to contract and pay for the same, according to the acts of assembly in such case made and provided. The bridge so erected, was composed of stones, wood, and a large quantity of iron, and known by the name of a chain bridge. The defendants are a body politic and corporate, duly created by letters patent under the hand of the Governor of this Commonwealth, and the seal thereof, in pursuance of the act of assembly authorising the same, by the style and title of the President and Managers of the Chambersburg and Bedford Turnpike Road Company, with the powers, authorities, and privileges, and subject to the duties, qualifications, penalties, and restrictions given and granted by the several acts of assembly in that case made and provided. The said defendants laid out and founded a turnpike road over the said creek and public road, where the said bridge was erected as aforesaid, and on the day of , , entered on the said public road and pulled down and removed the said bridge, and converted the materials of which it was composed to their own use; the iron whereof, the said defendants sold for a large sum, viz., the sum of g 1 , and the said defendants shortly after pulling down the said bridge, erected at the same place, a certain other bridge, built entirely with stone, sand, and lime, forming part of the said turnpike road, which the defendants were authorised to make by the said acts of assembly, and which said last mentioned bridge, has been ever since used with convenience and safety in crossing the said creek at the said place, and is more convenient than the chain bridge, which was seldom used as a passage by the public, except when the state of the creek required it.</p> <p>If the Court should be of opinion upon the preceding statement of facts, that the plaintiffs were entitled to recover, they were to declare what should be the measure of damages, and enter judgment generally for the plaintiffs; the amount to be ascertained by referees. If it should be their opinion, that the action could not be sustained, judgment was to be entered for the defendants.</p> <p>By an act of assembly passed on the 24th of February, 1806, (8 Bio. L. 18,) the Governor was authorised to incorporate a company, for the purpose of making an artificial road, from the bank of the river Susquehanna opposite the borough of Harrisburg, to Pittsburg. The 8tli section of that act, authorised the company to enter enclosures, &c., through and over which the intended turnpike road might be thought propér to pass, to examine the ground most proper for the purpose, and the quarries and beds of stone and gravel, and other materials in the vicinity, which might be necessary in constructing the road; and provided, that if any persons should suffer damage in consequence of the laying out and founding the said road over and upon their land, they should make application to the Court of the county in which such damage should have been done, who should appoint six fit and disinterested persons to view and adjudge the amount of the damage done, which, if approved by the Court, should be paid by the company.</p> <p>The 9th section, authorised the company, under certain conditions and restrictions, to enter upon the lands, in, over, contiguous, and near to which the route and tract of the said intended road should pass, and to cut down, dig, take and carry away, any timber, stone, gravel, sand, earth or other materials, there being most conveniently situated, for making or repairing said road.</p> <p>The 10th section, directed the company to erect permanent bridges over all the waters crossed by the said route or tract, wherever the same should be found necessary, and prescribed the width of the said road, and some other things which it is 1 ° not necessary to mention.</p> <p>The 11th section declared, that as soon as the company should have completed the said road, they should, or when any ten miles thereof were made, they might give notice to the Governor, who should appoint three skillful and judicious persons to view and examine the same, and report to him whether it was so far executed in a complete and workmanlike manner, and if their report should be in the affirmative, he was required by license, under his hand, and the less seal of the Commonwealth, to permit the company to erect gates, for the purpose of collecting the tolls ; the amount of which, together with some other things connected with them, was provided for by the 12th section.</p> <p>On the 9th March, 1814, a supplement to this act was passed (Pam. L. 85,) by which the Governor was authorised to incorporate five companies for the purpose of making the different sections of the great road; by virtue of the 4th section of which, the plaintiffs in error were created a body politic and corporate, by the style and title of The President and Managers of the Chambersburg and Bedford Turnpike Road Company.”</p> <p>The act of the 11th Aprils 1799, sec. 24, (Purd. Dig. 106,) enacts, that when the inhabitants of any county shall be desirous to have a bridge erected or repaired on any public road, over any water, they shall apply by petition to the Judges of •the Court of Quarter Sessions of the proper county, stating the place and circumstances of the case, with the probable ex- ■ pense, and the said Court shall give said petition in charge to ■ the grand jury, who shall consider of the propriety of erecting or repairing the same; and if the Court and jury shall approve thereof, the Court shall make an' order on the commissioners, requiring them to cause the same to be erected or repaired in the manner prayed for, or in any other manner to be directed by the said Court and jury; and thereupon, the said commissioners shall, as soon as conveniently may be done, carry the said order into effect.</p> <p>The 21st section of the act of assembly passed April 6th, 1802, “ for laying out and keeping in repair the public roads and highways,” &c., (Purd. Dig. 593,) provides, that where a river, creek or rivulet, over which it is necessary to erect a bridge, crosses a public road or high-way, and the erecting of such bridge requires more expense than it is reasonable that one township or two adjoining townships should bear, itshall be the duty of the justices of the Court of Quarter Sessions, on the representation of the supervisor or supervisors, or oii the petition and at the request of a number of the inhabitants of the respective townships, to order a view, in the same manner as in the case of laying out roads and high-ways, and if on report of the said view it appears to the Court, grand jury, and commissioners, that such a bridge is necessary, and would be too expensive for the township or townships to erect, it is directed to be erected at the expense of the county, in the manner therein pointed out.</p> <p>The Court of Common Pleas being of opinion, that the iron in question was the property of the county of Franklin, and that therefore the plaintiffs were entitled to recover, the defendants removed the cause by writ of error. It was argued in this Court by Crawford, for the plaintiffs in error, and by Chambers, for the defendants in error, after which the opinion of the Court was delivered by</p>

<p>and B. to C? thlee” drawn™ Virginia, and put ¡„ su¡t ¡„ agreement widchiTwM stipulated,that the said suits should be dis™sts of the defendants, in consideration of which, the gave to C. their joint and several note, ® ■^0a*n1[‘t0 tlle three notes tioned.'bear^roe^ay'with the agreement one yearfrom dat-ewas also *^ Bohemia be permitted, within twelve from the date of the new note, but not after, to shew either by judicial proceedings or by legal evidence satisfactory to C., that the said three notes were given without any legal or equitable consideration, or to establish any off-sels 5 but if the proceedings to establish a want and consideration, or payment in part or in whole of the said three notes were not commenced in twelve months, then the new note was to be paid without delay. Ifeld, that in a suit brought against B., on the new note, evidence of the consideration of the three original notes which had been filed of record in the Court in which suits were brought on them in Virginia, and that the defendant had in the presence of the plaintiff, applied for them at the office of the clerk of the said Court, who refused to deliver them, in consequence of their being part of the record, was inadmissible, although at the time of the execution of the said three notes, and ever since, both the plaintiff and defendant resided in Pennsylvania.</p> <p>If evidence be offered in so vague and uncertain a manner that it is impossible to know what it fo intended to prove, it ought to be rejected.</p>

<p>March^isio, quires the payment of theenwyofan appeal, does Constitution, That part of the 11th section of the arbitration low rtf’ OftfVl</p>

ElUtOIt. FROM the statement filed in the Common Pleas of Adams county, by the plaintiff Moses Beales, it appeared . , . , , ** that this suit was brought on a bond dated 19th August, 1816, executed by Andrew Wolf, the defendant, for the penal sum 0f 3892 dollars 90 cents, conditioned for the payment of , ,, . x r , . 1946 dollars 45 cents on the day alter its date.

<p>In Error.</p> <p>IN the Court of Common Pleas of Franklin county, an action of debt was brought in the name of the Commonwealth for the use of Abraham Buckholder, on a bond in the penalty of one thousand dollars, executed by Henry Palmer, constable of Franklin township, and George Barnits, his surety, for the faithful performance of Palmer’s duty as a constable. The plaim iff obtained a verdict for eighty-nine dollars, seventy-five cents.</p> <p>A motion in arrest of judgment was made by the defendants’ counsel in the lower Court, on the ground that the cause of action was not cognisable by the Court of Common # . ° J Pleas, but by a justice of the peace. The Court however were of opinion that the case was within their jurisdiction, and the defendants took out a writ of error.</p> <p>Where a remedy is given by act of assembly, it must be strictly pursued. Act of 21si March, 1806, sec. 13, 4 Sm. L. 332. The 19th section of the act of 20th March, 1810, 5 Sm. L. 173, plainly indicates the remedy against a constable for a breach of his official duty. It was evidently the intention of the Legislature in passing that act, that the constable alone, should in the first instance, be proceeded against before a justice of the peace, and that the surety should not be resorted to until an effort had been made to recover against the principal. The amount of the penalty of the bond is no objection to the jurisdiction of the justice because it contains a collateral condition on which less than- one hundred dollars might be recovered.</p> <p>The act of the 20th March, 1810, sect. 19, declares, that if a constable be not a freeholder, he shall give bond, with at least one sufficient surety, which shall be held in trust for the use and benefit of all persons who may sustain injury from him in his official capacity by reason of neglect of duty, and for the like purposes and uses, as sheriff’s bonds are usually given j and the 4th section of the act of 28th March, 1803, Turd. Dig. 617, authorises any person who may be aggrieved by the misconduct of a. sheriff, to sue by scire facias or by action of debt on his official bond. Thus- both descriptions of bonds are placed on the same footing, and the remedies upon them are of course the same. The intent of the act of 20th March, 1810, was to prohibit proceedings before a justice against the security of a constable, except in certain specified cases, but not to take away the jurisdiction of the Common Pleas. The law contains no prohibition of a suit in that Court, which being a Court of general jurisdiction, its powers are not to be limited by intendment. In the present instance, the action was for an escape, over which a justice has no jurisdiction.</p>

In Error. THIS case came before the Court on' a bill of exceptions to the opinion of the Court of Common Pleas of Huntingdon county, in which an ejectment was brought by Peter Steffey the defendant in error, for a tract of land containing between * — twenty-six and twenty-seven acres. He made title under warrant dated 4th January, 1815, on which a survey was made on the 11th May, 1815, and returned on the 7th vember, 1815.

<p>In Error.</p> <p>IN the Court of Quarter Sessions of Bedford county, an indictment for forcible entry and detainer, containing three counts, was found against George Burd and three other defendants.</p> <p>The first count charged the defendants with having entered into an unfinished dwelling house in the lawful and peaceable possession of Robert Woodcock, and with expelling and holding him out from the possession of the same.</p> <p>The second count stated, that Robert Woodcock was lawfully and peaceably seised of an unfinished dwelling house, and that one Joseph Woodcock, son of the said Robert Woodcock, was lawfully in possession of the same; and that the defendants entered and expelled the said Joseph Woodcock from the possession of the said dwelling house, and forcibly disseised the said Robert Woodcock of the same, and the said Joseph Woodcock, so expelled, held out, &c.</p> <p>The third count, on which the defendants were acquitted, it is unnecessary to state.</p> <p>The jury found two of the defendants guilty on the first two counts of the indictment, and the Court sentenced them to pay a fine of one dollar each and the costs of prosecution, and awarded that the property should be restored by writ of restitution to Robert Woodcock.</p> <p>The following reasons in arrest of judgment, were filed in the Court below and overruled.</p> <p>1. It is not stated in any part of the indictment, what estate Robert Woodcock had in the premises in which the force is alleged to have been committed at the time laid in the indictment.</p> <p>2. In the second count, Joseph Woodcock is said to have been in possession of the house, and it does not appear what estate he had therein.</p> <p>S. In the second count, Robert Woodcock is stated to have been seised of the house mentioned in the indictment, but it is not set forth what estate either he or Joseph Woodcock had in the land on which the house was erected.</p> <p>4. It is not stated in the indictment, that either Robert or Joseph Woodcock was seised or possessed of the land on which the house mentioned in the indictment was erected.</p> <p>5. It does not appear from the indictment, to whom the Court ought to award restitution.</p>

A HABEAS CORPUS having issued at the instance of Charlotte Neal, commanding John Fee, sen., to produce the body of John Fee the third, together with the cause of his detention, he returned, that he detained him by virtue of an order of the Court of Common Pleas of Huntingdon county, a copy of the record of which was annexed to the return. * ' Toa habeas corpus issued by the Court of Common Pleas against the present defendant, he returned., that he was the grandfather of John…

<p>The act of ,]oesn£)t ^‘r¡“^sat¡ije • under a settle-perfect his ti-bis taking out a warrant unthe act of ^neiusireevideuce ufabandonmeut* whether or "“ataXn his title by settlemeut/isaquest¡on t0 be sub-the the cireum-^ casCt</p>

<p>In Error.</p> <p>THIS action was brought by the defendants in error, who were the executors of Samuel Dryden, deceased, in the Common Pleas of Franklin county against Samuel Purviance and Samuel Dryden, jun. as joint partners for money lent to them by the testator. Non est inventus was returned as to Samuel Dryden, jun., and the suit proceeded against Samuel Purviance alone. The-cause turned on the fact of partnership, which was denied by. Purviance. His defence was, that Samvel Dryden, jun. received the money as a gift from his father on his private account, and that he was not a partner, but a clerk merely in his employment, and was to receive as a Compensation for his services, one-’nalf of the profits of a store kept at Next) Lancaster, in the State of Ohio. On the hand, the plaintiffs averred that he was a partner, and tjlat tjle money was borrowed by him and went into the partne.rship stock. Parol evidence was viven on both sides in * ^ support and in denial of the partnership. The President of the Court of Common Pleas charged the jury, that if Samuel Dryden, jun. was to receive one-half of the profits, he was to be considered as a partner of Purviance. The. defendant’s counsel excepted to this opinion, and the propriety of it was now the question.</p> <p>insisted, that to constitute a partnership, a participation of losses as well as profits was necessary, and that, therefore, the Court of Common Pleas erred in instructing the jury that an agreement to share the profits of the store amounted to a partnership between Purviance and S. Dryden, jun. as to creditors. Watson on Part. 11.(14.) 13. (J 7.) 22, (30.)38. (52.) 42. (58.) Dry v. Boswell, 1 Camp. 329. Id. 331, note. Muzzy v. Whitney, 10 Johns. 226. Wikinson v. Frasier, 4 Esp. Rep. 182. Hobs v. Young, 2 Salk. 610. Hare and others v. Dawes and another, Doug. 371.</p> <p>said, that whatever operation an agreement that one party should share the profits, without participating in the losses of a concern, might have between the parties themselves, there could be no doubt that, as regards .the world, they were partners. A share of the profits diminishes the fund on which the creditors rely as partnership property, and, therefore, whoever shares the profits, must, by implication of law, bear his proportion of the losses. It has frequently been decided, that one who receives part of the profits as a compensation, is liable to creditors, as a partner.- Waugh v. Carver, 2 H. Bl. 235. Grace v. Smith, 2 W. Bl. 998. Watson on Part. 9. (12.) 25. (34.) Peacock v. Peacock, 1 Camp. 45. Hesketh v. Blanchard, 4 East, 144. 1 Esp. N. P. 116. (223.) Gould’s ed. Widdifield v Widdijivld, 2. Binn. 249.</p>

<p>In Error.</p> <p>THIS case came before the Court on a writ of error to Franklin county, and appeared to be as follows :</p> <p>., _ .. _ . . # . Simon Hailman and James Brotherton, gave their joint bond to the plaintiffs in error for a sum of money lent by them t0 Hailman. /Brotherton was merely the security of . J J Hailman, and received no part of the money, i he bond was 10th November, 1802, and payable on demand, with interest from the date. Brotherton died on the 18th February, , , . . , ,. . , - , , 1807. Hailman, the surviving obligor, paid part ofthe debt on ^ jpth February, 1812, after which, and before the bringing of this suit, he became insolvent. This suit was -, , ™ , . ... ,. brought to November lera, 1814, (Hailman being still livin8'0 m order to recover from Brotherton’s executor the balanee due on the bond,</p> <p>The judgment in the Court below was in favour of the defendant.</p> <p>argued that there must have been some mistake or inadvertance in not making the bond Joint and several; that the evidence of this arose from the nature of the transaction itself; that in conscience the estate of the obligor who died first, was bound to make payment as much as if the bond had been several; that it was evidently the intention of both parties, that the security should be complete, and its not being so, arose from the obligees not knowing the distinction between a joint bond and .one that was joint and several; that, in such a case, a Court of Equity would grant relief, and this Court would do the same. 1 Fonb. S3, 34. Primrose v. Bromley, 1 Atk. 90. Simpson v. Vaughan, 2 Atk. 31. 1 Haddock’s Ch. 22, 23. 41. 59. Underwood v. Staney, 1 Ch. Cas. 77, 73. 3 Atk. 93. Crosby v. Middleton, Pr. in Ch. 309. Heath v. Percival, 1 P. Wm. 683. Bishop v. Church, .2 Vez. 371. Simsv. Urry, 2 Ch. Gas-. 225. Sheffield v. Capelton, 2 Vern. 393. 1 Fonb. 37. c. 1. s. 7. note T. Harris v. Clap, 1 Mass. R. 308.</p> <p>admitted, that if Brotherton had received part of the money, equity would relieve ; but denied that it would do so in a case like the present, where the defendant was merely a security, a class of parties who are greatly favoured, both in law and equity. This was not the case of an imperfect bond.' It was never intended that Brotherton should be bound otherwise than jointly. He lived four years after the execution of the bond, and was never called on for payment, though it was payable on demand. The cases cited on the other, side turned on mistake, fraud, or ac'cident, and, in such cases, Chancery only established the real agreement of the parties ; or they were cases of lost bonds, in which Chancery admitted secondary evidence of the actual agreement. The present case, however, had none of these features ; there was no evidence of fraud, accident, or mistake, in drawing the bond. It never had been decided in England, that relief.could be had against the representatives of a deceased obligor, who was a mere security; but the contrary had been expressly decided by the Court of Appeals in Virginia, in Ming’s executors v. Field’s executors, 2 Wash. 136. If, however, any action could be supported in Pennsylvania, in such a case, it must be a special action on the case, and not debt on bond. He cited Arlington v. Merricke, 2 Saund. 44. Ludlow v. Simons, 2 Caines, Error, 29. 2 Johns. Ch. Rep. 560.</p>

<p>In Error.</p> <p>ON the trial of this ejectment in the Common Pleas of Franklin county, a special verdict was found, of which the following is the substance :</p> <p>William Strain died intestate, seised in fee of the premises in dispute in September, 1794, leaving a widow and six children. On the petition of the eldest son, the Orphan’s Court of Franklin county awarded an inquest for the partition and valuation of the real estate of the intestate, who divided it into two parts; one containing 132 acres 149 perches, which was valued at seventy-five dollars an acre; the other, containing 162 acres, 146 perches, which was valued at twenty-five dollars 87 cents an acre. Those of the children of the intestate who were entitled by law to priority of choice, having neglected or refused to take any part of the property the valuation, William Sponsler, who had married Isabella Strain, one of the daughters of the intestate, agreed, to take one of the purparts at the valuation, and the Court decreed it to him “ as his freehold, to him and his heirs and assigns forever; he entering into recognisance, and giving bail for the payment of the respective shares of the other heirs.” The recognisance was duly entered into on the same day. • Sometime afterwards, Isabella, the wife of William Sponsler, A, who had never had issue, died, and afterwards, on the 24th November, 1817, William Sponsler, conveyed the premises fora valuable consideration to David Fogelsonger, the de00 feridant.</p> <p>This ejectment was brought by David Somerville and fane, his vrife, and John Henderson ánd-Margaret, bis wife, in right of their respective wives, who were daughters of the intestate, to recover their interest in their sister Isabellas share of the real estate of her late father.</p> <p>The opinion of the Court below was, that the Orphan’s £ourt hac¡ no p0Wer j-q vest jn t[je husband the real estate of tjje wife: that his acceptance oF a purpart in' right of his wire could give him no greater estate than by law he had before, as tenant by the curtesy ; that the circumstance of the defendant being a bona fide purchaser, was of no consequence, as the foundation of the title was a record to which he had access, and of which he was bound to take notice, and that, therefore, the plaintiffs were entitled to recover.</p> <p>This opinion, a copy of which was returned with the record, came up, on a writ of error, for revision by this Court. .</p> <p>did not assert the right of the Orphan’s Court to assign the estate of the wife to the husband, but contended that it was the duty of the plaintiffs to see that every thing was regularly and legally conducted; and that having stood by and submitted to the decree of the Orphan’s Court, they should not be permitted to dispute the title of an innocent purchaser, who relied on the validity of that decree. This doctrine is conformable to the principles by which Courts of Chancery are uniformly governed. Finch v. Newman, 2 Fern. 216. Sorrell v. Carpenter, 2 P. PFm. 482. PForseley v. Earl of Scarborough, 3 Atk. 392. Preston v. Tubbin, 1 Fern. 286. Harvey v. Montague, 1 Fern, 57.</p> <p>But, however irregular the decree of the Orphan’s Court may have been, this is not the proper mode of attacking it. By the 9th section of the act of 27th March, 1713, an appeal is given to the Supreme Court from a definitive decree of the Orphan’s Court, which we contend cannot be impeached except in the manner pointed out by law. Until reversal it is valid. This was the course pursued in the case of Elliot v. Elliot, 5 Binn. 1. Though in the case of Messinger v. Kintner, 4 Binn. 97., the right of questioning the validity of proceedings in the Orphan’s Court, collaterally in an ejectment, was recognised by a majority of the Court, it was put by the Chief Justice entirely upon the ground of practice and the authority of Lar rimer’s Lessee v. Irwin, decided in 1798, by C. J. M‘Kean and Judge Smith; and great doubts were expressed by him as to its propriety. Judge Yeates, on the contrary, asserts the general proposition, that a decree of the Orphan’s Court can only be reversed by appeal, and not col- . 1 ,, . . ... , , , , , . ,. . laterally m another suit, although he thought the rule did not apply to the case then before the Court; as the plaintiff, at the time the decree was made was a minor, and was not, either by himself or his guardians, a party before the Court. In Snyder’s Lessee v. Snyder, 6 Binn. 4?8S. the same point arose j and while the Chief J ustice, and a majority of the Court, adhered to their opinion in the case just mentioned, exclusively for the reasons there given, acknowledging, however, the inconveniences and disadvantages of the doctrine, Judge Yeates strenuously held to his former opinion, and directly questioned the authority of Larrimer's Lessee v. Irwin. The law on this subject, therefore, cannot be considered as so firmly settled that it ought not to be shaken. As it stands, it is fraught with many evils, and great benefits would flow from the establishment of a different rule.</p> <p>The wife of William Sponsler was entitled to a certain proportion of her father’s estate, and has done nothing to divest herself of it. This proportion, for which her husband paid nothing, we claim. With respect to those parts for which he paid the other heirs, we make no demand. The only question, then, is, whether it has been divested by the decree of the Orphan’s Court, by which it wasgiven'to her husband in fee. The Orphan’s Court is a Court of limited jurisdiction, invested with certain powers for specified purposes, and has no control over land, further than is given to it by act of assembly. Nothing, therefore, can be deduced from the decisions of Courts of Chancery at all applicable to this subject. The proceedings of the Orphan’s Court are.an encroachment on the common law, and, therefore, not to be extended beyond the express powers given by the statute. Johnson v. Haines’ Lessee, 4 Dali. 64. 66. It is barely authorised to assign to each child the proportion to which he is entitled by the express provisions of the law. Act of 19th April, 1794, sect. 22. Purd. Dig. 293. No mention whatever is made in the act of assembly of the husband of a female heir,'and when, he takes his wife’s share, he takes it in her right, and it remains her estate. Blocher v. Carmony, 1 Serg. Raxvle, 460. The Orphan’s Court cannot transfer real estate, nor commute it into' personal property further than they are expressly permitted by act of assembly, which, when all the heirs refuse to take the land at the valuation, authorises a sale. The Or-P^an*s Court having manifestly exceeded its powers, the only remaining question is, whether the validity of its decree may be enquired into in this suit. This question is no longer open. Whatever may be the inconveniences attending the doctrine, it is now fully settled by the cases of Messinger v. Kintner, and Snyder's Lessee v. Snyder, that the proceedings in the Orphan’s Court may be examined in an ejectment. If the defendant loses an estate for which he has paid a valuable consideration, the fault lies with himself. He purchased with full notice of the proceedings in the Orphan’s Court, without which he could not máke his title, and he was bound to know that the y could not be supported.</p>

<p>r In Error.</p> <p>A DECLARATION in trover was filed by Elizabeth Metzer, administratrix of Martin Metzer, deceased, in a suit brought by her in the Common Pleas of Cumberland county, to August Term, 1814, against Martin Metzer, which stated that the goods were the proper goods and chattels of the xn£es£a£e> an(l were casually lost by the plaintiff, as his administratrix ; and laid the conversion by the defendant on the 19th February, 1813. Elizabeth Metzer having afterwards mar- and Martin Metzer having died, a scire facias issued in the name of the original plaintiff and her husband, to substi£be executors of Martin Metzer as defendants in his bis place. When the cause came on for trial, after the coun- £ 7 sel ror the plaintiffs had opened the case, the Court intimated tbeir opinion, that they could not recover in this ac-which they considered abated by the death of the der , , „ ^ , fendants’ testator, Martin Metzer. The plaintiffs then suffered a nonsuit, with leave to move to take it off and have a new trial, and with liberty to have the question revised by the Supreme Court on a writ of error. The motion to take off the nonsuit was overruled, on argument, and the judgment of nonsuit made absolute.</p> <p>The only question is, whether the action of trover brought against Martin Metzer, deceased, abated by his death. By the 8th section of the act of 13th April, 1791, Turd. Dig. 207. it is provided that no suit shall be abated by the death of a party, when the cause of action doth by law survive. Now, though trover is in form an action for a tort, it is in substance an action for the trial of property, and the real cause of action survives. If trespass be brought against a disseisor who dies, although the action cannot be renewed at law, yet the profits may be recovered in equity. Haldone et ah v. Duchés Executors, 2 Dali. 178. Upon the same principle, an action of trover, which is equitable in its nature, may be revived against the executors of the defendant. In the case of Hambly v. Trott, Administrator, Cowp. 372, whose authority has been contradicted, 2 Esp. Rf. P. 199. (JV. York edit.) it was indeed decided that trover would not lie against an executor for a conversion by his testator ; but this decision was pronounced after considerable doubts, and would not have been pronounced at all, if no other action could have been brought against the executor. In the present instance, no other action can be brought. If the plaintiffs fail in this suit, their remedy is atan end ; for the act of limitations will bar any other action. Nothing now stands in their way but form, and all forms which obstruct the course of justice, even where they are supported by decisions repugnant to reason, ought to be disregarded.</p> <p>said, that the conversion was a tort both in substance and in form. 1 Salk. 10. pi. 2. Crossier v. Ogleby. 1 Str. 60. ; and it had been expressly decided, upon great deliberation, that the action of trover died with the person. Hambly v. Trott, Administrator, Cozupi 372. Bernard v. Harvey, 3 Mass. Rep. 228. If the plaintiffs had no other remedy in consequence of the intervention of the act of limitations, it was then our fault in selecting a form of action subject to be abated by .the death of the defendant. If the property had been sold, an action for money had and received, might have been brought; if not, replevin.</p>

In Error. WRIT of error to Cumberland county. Sheets, who was plaintiff below, entered a rule pf iion, in consequence of which both the plaintiff and defendant met at the office of the prothonotary, chose their arbitrators, and appointed a time and place of meeting.

In ERROR. WRIT of error to Cumberland county. The cause, which was a scire facias to revive a former judgment, was submitted to arbitration under a compulsory entered by the plaintiff below, Abraham Bruner.

<p>In Error.</p> <p>ANDRE W PA TTERSON, the defendant in error, brought an action in the Common Pleas of Cumber land county, for a libel in. which, as the declaration averred, he was charged by the plaintiff in error, Edward Magauran, with being a liar, and with having suborned his own son to commit perjury. The defendant below pleaded not.guilty, with leave to add, alter, and amend, and afterwards added the plea of justification, under which he offered to prove on the trial, in order to establish the truth of the first charge, that Patterson had said to Mrs. Magauran, the defendant’s wife, “ Do you know squire Holler ? Did he ever find the breeches he left in your room ? I can prove it by Charles Elliot.” And further, that the plaintiff said to the defendant himself, “ If you don’t hold your tongue, I’ll tell something more about your old woman and squire Holler. Did Holler ever find the breeches he lost in her room ? I can prove it by Charles Elliott. He was the first who brought it over the mountain. They had it for a bye word in a song for three years.” The defendant also offered in evidence the record of a suit in which he and his wife were plaintiffs and Patterson defendant, with the declaration filed in that suit, and the verdict of the jury, who found for the plaintiff twenty-five dollars damages, together with the opinion of the Court on a motion in arrest of judgment. This evidence, on an objection being made to it by the plaintiff’s counsel, was rejected by the Court for the following reasons :</p> <p>When a charge of so general a nature as that in the first part of both counts in the declaration, is made, if the defendant intend to justify by giving in evidence particular facts, he must set them out in his plea. No man comes into Court prepared to establish by testimony every act of his life. He therefore, might be taken by surprize, if particular facts could be given in evidence to establish so general a charge, with•qut previous notice. Evidence to prove the charge of subornation of perjury, is not objected to. The evidence is rejected.”</p> <p>To this opinion, a bill of exceptions was tendered by the defendants counsel, and sealed by the Court.</p> <p>The jury found a verdict in favour of the plaintiff for three hundred dollars damages.</p> <p>who cited Frederitze v.- Odenwalder, 2 Teates, 243. Wallis v. Mease, 3 Finn. 546. Kennedy v. Gregory, 1 Finn. 86. Haakv. Breidenbach, 6 Finn. 18 Kerlin v. Seacock, 3 Finn. 217. 2 Bac. Ab. 614. Evid. F. MiMillan v. Birch, 1 Finn. 178. and by</p>

In Error. WRIT- of error to Huntingdon county. In delivering the opinion of the Court, the Chief Justice has rendered unnecessary any other statement of the case.

<p>THIS was an action of trespass quare clausum fregerunt, and bona asportaverunt, brought in this Court. The .defendants pleaded non cul., and justified under a demise to the plaintiff, by Baltus Emerick, one of the defendants, and a distress for rent in arrear. The plaintiff replied, no rent in arrear, and issue was joined. The cause was tried before Judge Duncan, at Nisi Prius, on the 26th September, 1820, when it appeared that before the distress was made, the plaintiff had tendered a sum equal to the rent really due, which Emerick, who claimed a greater amount, refused to receive, but proceeded to distrain, and sold the goods. The jury, under the direction of the judge, found for the plaintiff 120 dollars, double the value of the goods, under the act of assembly of 21st March, 1/72, and found further for the plaintiff^ and assessed damages at 290 dollars, with six cents costs, subject to the opinion of the Court upon the question, whether, by the provisions of the act of assembly, the damages were to be limited to double the value of the goods ; if they were, judgment was to be entered for the former, if not, for the latter sum.</p> <p>tf,e third section of the act of assembly abovementioned, (Furd. Dig. 578,) it is enacted, “ That in case any distress and sale shall be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them in whose name or names, or right, such distress shall be taken, as aforesaid, that then the owner of such goods and chattels distrained and sold, as aforesaid, his executors or administrators shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full of costs of suit.”</p> <p>denied-that the j ury were restrained by the act of assembly from giving damages beyond double the value of the goods distrained. - The action, he said, was not founded upon the act, which spoke only of distraining and selling where no rent was due; it was an action at common law for breaking and entering the plaintiff’s close, with respect to which, the act made no provision. The plaintiff, therefore, could not have judgment under the act, for the writ did not conclude against the form of the statute. Morrison v. Gross, 1 Browne’s Rep. 1. The judgment, consequently, must be given without reference to the act of assembly.</p> <p>The question is, whether the act of assembly has taken away the action of trespass at common law. The only dispute was, whether any rent was in arrear and due ; and whether Emerick had a right to enter and distrain. The general rule jis, that where a statute limits a thing to be in one form, it supercedes the common law. 2 Inst. 200. 19 Fin. BiZ.pl. 7. And it is moreover expressly declared by an act of assembly of 21st March, 1806, sect. 13. Purd. Dig. 2. that in all cases where a remedy is provided, or a duty enjoined by an act of assembly, the directions of the act shall be strictly pursued, and no penalty shall be inflicted, or any thing done agreeably to the provisions of the common law, further than shall be necessary for the purpose oí" carrying the act into effect. In the present instance, a remedy was given by act of assembly, and therefore no common law remedy could be pursued. That the plaintiff cannot have judgment under the act of assembly, because his action is not founded upon it, is true ; but it does not follow that his common law suit can be supported ; the consequence of his omission to pursue the remedy indicated by the law is, that he is entitled to no judgment whatever.</p>

THIS cause was tried before Gibson J. at a Court of Nisi Prius, held in Philadelphia on the 14-th November, 1820, when the jury found a verdict for the defendant. It now came before the Court in Bank., on a motion for a new trial, because the verdict was against evidence, and on a point re- . ° served* k Every thing material in the case will be found in the opi- } ° r nion of the Court, which was delivered by

... THE declaration in this case contained two counts against the defendant, as indorser of two promissory notes, drawn by Noble C. Nelson; one dated July 26th, 1811, for 1822 dollars 1 cent; the other dated August 2d, 1811, for 2500 dollars ; and also a count for 5000 dollars, lent by the plaintiffs to the defendant. When the jury was called for r. . , „ , ,, - it* .

and Bradford on be-J r . - .. . naif or a judgment creditor, obtained a rule to shew cause wliy the judgment entered, by virtue of a warrant of attorney, on the 3d January, 1820, on a bond for 800 dollars, should not be vacated..

THIS was an ejectment brought in this Court for eight inches of ground. The case before the jury turned entirely on matters of fact involving a question of boundary. The verdict was for the defendant, and the plaintiffs now moved for a new trial, on the ground that it was against the evidence and the charge of the Court.

THE state of the case on which the Court was request- „ . . . » c m ed to give its opinion, was as follows : The plaintiff entered a rule of arbitration on the 23d Octo~ her, 1816, and an award in his favour for 1642 dollars, 46 cents, with interest from the 6th February, 1817, was filed on the 9th April, 1817. From this award ;the defendants pealed on the 29th April, 1817, and paid the costs.

<p>. F oile havhif possession, the°elta!e of arwnsoivent, ver thi-m on signees of the insolvent, allegiug ihat them fora°a debtdue to solvent, uls"1" sufficient evidence of a conversion to support an ac tion of trover.</p> <p>if a supercargo who has received no from this sb ipper, to whom consign t e return goods, consign them fraudult ntly to thi- owner of the vessel, with a view to secure to him a debt due from tiie er can derive" froms^h1 signment.</p> <p>case'thesíandardotdamages is the current price of such at the time of the demand ; and the jury may -give further damages in the nature of interest.</p> <p>One who has an estate trust to pay debts, to return surplus, if any, to himself, is a competentwitness in an action of trover brought by his assignees against one of Ins creditors who claims to hold goods as a security for the debt due from the assignor; because the interest which the witness has in the surplus, is balanced by his interest in the application Óf the in the hands of the defendant to the extinguishment of the debt due to him.</p> <p>A letter of instructions written by the defendant to his supercargo, stating that A, who had purchased goods of the defendant, and shipped them by the same supercargo, had agreed that the return of his adventure should be addressed to him as a guarantee for the payment of the notes which A was to give for the amount of the goods he had sold him, is not evidence in an action by the assignees of A, to prove such agreement, though A’s letter of instructions, touching his own goods, be previously given in evidence.</p>

<p>In Error.</p> <p>FROM the record of this case, which was returned on a writ of error to- Lehigh county, it appeared that it was an action of debt on a bond for 4400 dollars, brought by Joseph Sigfried, the plaintiff in error, against Abraham and Joseph Levan. The writ was returned “ summoned” as to the latter, and “ nihil” as to the former. 1’he plea was non est factum. t</p> <p>On the trial the plaintifT called Peter Levan as a witness, who swore that his name was subscribed as a witness to the bond; that he did not see Joseph Levan sign it; it was signed before his name was put to it; that the signature looked like his brother Joseph’s handwriting ; that he had never seen him write much, and could not'swear it was his brother Joseph’s handwriting ; all he could say was, that it looked like his handwriting; that the other signature looked like his brother Abraham’s handwriting ; that when he put his name to it, it was nothing but a printed blank, with no writing on it, but the two signatures below; that he afterwards went to Kutztoxon, when his brother Abraham asked him to take the bond along with him, but. he did not take it the first time ; that he was to ask Joseph Sigfried to trade for other bonds from Hauer; whether from Hauer or against Hauer, he could not say ; that he did not do any thing at that time; that Abraham Levan told him he did not know how to fill the bond up, he did not know the sum ; that he, the witness, must have taken it then ; that he was then at Joseph Sigfried1 s, and staid there all night; that it was probable he took the bond then; it was probable he gave him Hauer’s bonds. On his cross examination the witness stated, that his brother Joseph was not present when he signed his name as a witness ; that he did not desire him to put his name as a witness to the bond ; that he, the witness, did not know when it was filled up ; it was filled up when he brought it to Joseph Sigfried, which was a couple of weeks after he had signed it; that Joseph Levan and Joseph Sigfried lived about fifteen miles apart; that his brother Joseph did not request him to take the bond to Sigfried, and did not, as he knew, know a word about it; Abraham desired him to take it there, and he left it with Joseph Sigfried; that he believed Sigfried gave him Hauer’s bonds ; that there must hav.e been two ; that he did not know the amount, and that he gave them, to Abraham Levan. 7</p> <p>Daniel Sigfried, a witness also called by the plaintiff, testified, that he thought the name, Joseph Levan, subscribed to the bond, was in Joseph Levan’s handwriting. He once told Joseph Levan that he had seen such a bond. He had before seen the bond produced at the trial, or one like it, at Joseph Sigfreid’s, with the names of Abrahapt and Joseph Levan signed to it. Joseph Levan replied, yes, he had signed a bond, but he did not know how much it was. The witness said he had seen the bond, and the sum was about two thousand dollars. Levan said his brother Abraham had promised to pay half of it in half a year. The witness observed^ then it will be much yet, upon which Levan said, his brother Abraham, had a good estate, and he might pay it, and then requested the witness to say nothing more about-it, so that his wife should not get to hear it. The witness adfcled, that he always did a good deal for his friends if they only used him well afterwards.</p> <p>Susanna Sigfried, another witness called by the plaintiff, swore, that she saw the bond for the first time when Peter Levan brought it to her father, which she thought was three years ago. When Peter came there, he said, he had the bond from Abraham and Joseph for two thousand two hundred dollars. He left the bond there. Her father gave him two bonds from Hauer, which he assigned before he gave them to Peter Levan. Hauer’s bonds were together two thousand two hundred dollars, and Peter Levan took them away, and left with her father the bond which he brought, which was then filled up as it was whén produced at the trial. On her cross examination she stated that she did know to whom the bonds were oversigned. There was something written on them by her father, but she did not know what it was.</p> <p>The plaintiff then offered in evidence the bond to which the:testimony stated above referred, but an objection being made by the defendant’s counsel, the Couit refused to permit j(. to be read to the jury, on which a bill of exceptions was tendered and sealed.</p> <p>1. That the bill of exceptions disclosed no proof of the signature of Joseph Levan to the bond.</p> <p>2. That there was no proof of delivery.</p> <p>3. That the signature, if it had been proved, was rendered void by the alteration subsequently made.</p> <p>These positions he endeavoured to support by commenting on the evidence, and by reference to the following authorities. Commissioners of Berk’s County v. Ross, 3 Binn. 539. M'-Corkle v. Binns, 5 Binn. '348. Phill. Ev. 128. Dillon v. Crawly, 12 Mod. 500.- Phill. Ev. 358. 361. Co. Litt. 36. Verplank v. Sterry, 12 Johns. 536. 2 Ld. Ray, 763. Loft. Rep. 339. 1 Leon, 140. Cro. Eliz. 147. Woolley v. Constant, 4 Johns. 54. 2 Lev. 35. 0’Neale v. Long, 4 Cranch, 60. Churchill v. Perkins, 5 Mass. Rep. 541.</p>

In Error. ON a writ of error to the District Court for the city J county of Philadelphia, the case appeared to be thus : brought an action trespass quar.e clausum fregerunt, &c. to March Term, 1819, against Caleb Cridland, Benjamin Cridland, Robert Black, Peter Case, jun. Stephen E. Fotterall, and George F. Alberti, to which a general appearance was entered lor all the ants.

<p>AnordiCouncils, relary'of theSa" ^yoroCihe deiphia, after menc" ment of b»s term of lid. °e’ "S Va</p>

In Error. THE bill of exceptions which accompanied the record 0f this cause, on the return of a writ of error to the District . Court for the city and county of Philadelphia, exhibited the following case : brought an actionag'a>nst James Stewart, on a promissory note drawn by Hol~ bach Saunders, in favour of Siezuart, by whom it was in- , , , . , _ clorsed. 1 ne pleas were non assumpsit and payment.

In Error.. IN the District Court for the city and county of Philadelphia, William Bill, Benjamin Canonge, and Peter A. Canonge, lately trading under the firm of Gill, Canonge Co. brought an action for the use of their assignees, against George K. Kuhn, in which they declared in assumpsit for goods sold and delivered, on a quantum valebant, and on an account stated. 1 1 On the trial they gave in evidence, that the defendant had admitted the correctness of the charges, both on…

THIS cause, which was an action for money had and received, was tried on the 17th November, 1820, before Gibson, J. at Nisi Priasy when, by the direction of the Judge, a non-suit was entered, with .liberty to move to take it off.

<p>A HABEAS CORPUS having- issued to Jacob Eglee, t0 Pro(^uce the body of John Supplee, he returned that he detained him by virtue of an indenture of apprenticeship entered into before Alderman Baker. The indenture ran thus : This indenture witnesseth, that John Supplee, aged fifteen years on the 8th July next, by and with the advice and consent °f his mother, Hannah Hanger, hath put himself,” &c. ^ was s*Sne(^ and sealed by Jacob Eglee, John Supplee, and Hannah Hanger. On the hearing, it was admitted that Hanna^ Hanger was a married woman, living with her husband at the time she executed the indenture,</p> <p>argued that the assent of the parent required to an indenture of apprenticeship, by the act of 29th September, 1770, Purd. Dig. 7, was an agreement into which a married woman was incapable of entering. When an infant binds himself with the assent of his father, the father is liable to an action of covenant in consequence of having signed the indenture; but no such remedy can be had against a married woman. In relation, too', to the rights of her husband, the indenture is void. He is under the same obligation to support the children of her first marriage that she was before she married him, and is, therefore, entitled to exercise a control in the disposition of them. If a married woman is capable of assenting in a case like this, it is certainly an anomoly. Commonwealth v. Callan, 6 Binn. 255. Mead v. Billings, 10 Johns. 99. Reeves’ Dom. Rel. 285.</p> <p>said, that during the life of the father, he, of course, was the parent contemplated by the act of assembly, but on his death the mother became the only parent; and that she was such a one as the act had in view, could not be doubted, after the case of Commomvealth v. Callan. The law merely requires her assent, which does not amount to an agreement or covenant, which can be in any manner affected by her coverture ; nor can the husband’s assent to the indenture be necessary, because he had nothing to do with the boy. The marriage did not give him the guardianship of his wife’s children, and unless she was in a situation to maintain them before the marriage, he was not obliged to do so afterwards.</p>

In Error. THE plaintiff in error, Peter- Cotteral, brought an action in the District Court for the city and county of Philar delphia, against Samuel Cummins and Henry Ranston, in which they declared as follows : First count. “ Whereupon, the said Richard Cotteral, by Peter A. Browne, his attorney, complains, for that the said Richard now is, and at the time of the grievances hereinafter complained of, was a citizen of the United States of America; that on the thirteenth day…

In Error. A WRIT of error having issued to the Common Pleas of Montgomery county, the following extract from the docket of that Court was sent up with the record: Jacob Umsted,~\n v. John Schwenk. J Montgomery county, May Terra, 1818. “NOV. 18th, 1818. 7 ,, r™ 1 • . . , . . “ lhe struck jury and view heing called, the defendant claimed the right to challenge peremptorily, Francis Bigony, the first named person who had been on the view, and appeared.

FROM the report of the Chief Justice before whom this cause was tried at Nisi Prius, on the 24th January, 1820, it appeared that it was an action on a bill of exchange for six hundred pounds, British sterling, drawn by Thomas Clement, in Philadelphia, on Samuel Glen, merchant of Londonderry, payable to Adams £s? Loughery, at sixty days sight, ancj endorsed by them to Neill O'1 Donnell.

THE plaintiffs, Bogart &? Knee land, brought on an action against J. ES? S. Nevins Ss? Co. on a bill of exchange for 1010 dollars 50 cents, dated 1st December, 1815, drawn by Austin Es' Fenn, of Philadelphia, on Ralph Fenn, of Newbern, North Carolina, in favour of Humphreys Green, payable twenty days after sight. It was accepted on the 9th January, 1816, and was indorsed by the payee, by James Phelps, and by the defendants.

In Error. ¶ ON the trial of this cause in the Court of Common Pleas ot Chester county, on the 12th and 13th November, 1811, the jury found a verdict for the plaintiff, (the defendant in error! exceeding in amount the damages laid in the dey °. ° claration.

<p>A factor cannot pledge the goods of for SlTowo * debt; but if a broker^tí/86 're°deRv°red by his principal with power to sell, deliver, andreceive payment, deposit them, in the usual course of business, with a commission merchant, connected in business with a licensed auctioneer, who advances his notes thereon, the deposit binds the principal, who cannot recover the value of the goods in an action of trover.</p>

<p>This Court dvVissueout of Philadel-^ phia.</p>

<p>THE defendant having pleaded not guilty to an indictment for bribery, his trial came on before Duncan, J., at Nisi Prius, in April, 1820, when his counsel challenged the array of jurors. The challenge was overruled ; upon which his counsel withdrew. The cause was tried without counsel, and the defendant found guilty. '</p> <p>A motion was made in.Bank for a new trial, on grounds which are fully stated in the opinion of the Court.</p>

<p>An indictmcnt char&in? that A, “ with and wickedly did attempt to pick the pock-with intent” then and there steal, take, and carry away the goods and n!es and”pro-vague ’and uncertain to be supported.</p>

THE plaintiff brought an action in this Court for an assault and battery committed on his person by the defendant. On the trial, the plaintiff offered to oive in'evidence the I i- • 1 r . , ,, ° cord ot a judgment tor 4405 dollars 30 cents, obtained against him by the defendant since the commencement of the suit.

. THIS cause was tried in March last, before the Chief. - . Justice. It was an action for money had and received, brought by the late firm of Pop mice l Heilner osP Co. for the use of Zachariah Florence, against the defendants as assignees °f Moses Cohen, Levi Anker, and Abraham Joseph, and turned ehieflyon the construction of their deed of assignment.

In Error. THE defendant in error, John Floyd, brought an action Qf trespass, quare clausum fregerunt, &c. in the District Court for the city and county of Philadelphia, against Caleb and _ . . . ,, , _ . 1 , ° , , _ Benjamin Cndland, Peter Care,jr., Robert Black, Stephen Fotterall, and George F. Alberti, the plaintiffs in error, to March Term, 1819. A general appearance was entered for the defendants, and a declaration filed, counting against them jointly.

<p>An extract from a lost letter cannot be the witness by rectnessS¡s°ófprom!°be ready to swear that there was nothing in the letter relating to the matter in controversy, which wasnot contained in the extract. And this evidence is particularly exceptionable, where nosufficientnotice has been given to the party who ■wrote the letter to produce his letter book containing a copy of it.</p> <p>The jury having assessed damages in an action of trover at what appeared to them, under all the circumstances of the case, to be a reasonable compensation for the injury the plaintiff had sustained, the Court refused to set aside the verdict, on au allegation that the damages were excessive.</p>

FROM the special verdict returned by the jury in this case, it appeared that a certain Henry Hodgkinson, being charged before alderman Badger “ with a misdemeanor in writing letters without a real signature, with a view to extort money from a certain person,” entered into a recognisance together with Joseph Morris and the defendant, Robert Rdss, in the sum of 500 dollars each, on the 21st October, 1817, for the appearance of the said Hodgkinson at the office of the alderman…

ACTION on the case. On the 24th October, 1815, A. T. Patterson, of Liverpool, shipped on board the brig Hope, of which the defendant, Thomas Ingledevb, was the owner, a quantity of copper, which, by the bill of lading, was to be delivered to the plaintiff, Robert E. Griffith, or his assigns, in Philadelphia. The copper belonged to the shipper, and the freight was payable in Liverpool. A portion of it being injured by negligent carriage, this action was brought to ver damages.

Covenant. ISAAC HAZLEHURST and Joseph Bullock, trustees of Elizabeth Hazlehurst, on the 1st April, 1813, rented a large and commodious dwelling-house in the city of Philafeiphia, to the defendant for ten years, to be used for a tavera.

THE plaintiff having obtained two judgments, one for . „ , , . - J . ° . , 175 dollars and costs,-the other tor costs only, against the de~ fenc^ant > the latter obtained a rule to shew cause why he should not be permitted to set-off against them, so much of a larger judgment which he had previously obtained against ’■he P^a*nt'^> as would be sufficient to satisfy them.

<p>To const!\vm forthe disposition of CStilt© it is necessary ^reduced writing in the life-time of the and proved by two witnesses ; but signing by the testator, formal publication, and attestation by subscribing witnesses, are not required. A devise of the testator’s property will carry real estate»</p>

<p>THE plaintiffs having obtained a verdict at Nisi Prius in April, 1819, the defendant now moved for a new trial.</p>

THE parties entered an amicable action, and agreed to submit the following case to the Court, without argument: ° * ° Samuel E. Mifflin, died intestate, unmarried, and without issue, leaving one brother of the whole blood, the plaintiff, a brother and sister of the half blood, and the issue of two sisters of the half blood, who died in his life time. The brother and sister of the half blood were the issue of the father of Samuel E. Mfflinhy a former marriage.

THE accounts of Richards having been referred by the Orphans’ Court of Philadelphia county to auditors for settlement, they reported a balance due to him from each of the children, except one, amounting in the aggregate, to 5000 dollars.

In Error. ON a writ of error to the Common Pleas of Bucks , , , , _ „ county, the record presented the following case : Robert Brady and wife, the plaintiffs below, brought an , _ A , , _ action against the executors of Henry Jamison, deceased, for reCovery °f a legacy of2000 dollars bequeathed by the will of the said Henry Jamison to his sister, Martha Brady.

SYLVESTER ROBERTS having been removed by the Guardians of the Poor of the city of Philadelphia, the district of Southwark, and township of the Northern Liberties, from his situation as a member of the board, he obtained a rule to shew cause why a mandamus should not issue to the defendants, commanding them to restore him.

In Error. ERROR to the District Court for the city and county _ , ... 1 y Ot Phi lade Ipflta. The declaration was in assumpsit, for money had and re- . , , . , „ ceived. I he pleas were non assumpsit and payment. On tria^ a verdict was taken for the plaintiff, subject to the opinion of the Court upon the facts stated in the following which was agreed to be considered as a special verdict, The plaintiff and defendant are both inhabitants of the county of Philadelphia.

<p>The money arising from forfeited reeountyVf1 Philadelphia, entered into to answer a longs to the the poorofthe ^yt¿WnShjp ¡n yhioh the fence may be committed.</p>

In Error. THIS action was brought in the District Court for the and county of Philadelphia, by the Philadelphia Bank aSains^ Liberty Browne, on a promissory note drawn by WilHam Smiley and endorsed by the defendant. On the trial, the plaintiffs in order to prove a demand on the drawer, and due notice to the endorser, offered to give in evidence a protest . .. .. * made by Nicholas Diehl, jun. styling himself a notary public, certified under his hand and seal of office.

<p>When a lamfby nata-* ral boundaries, courses, and distances, by reference to the map of a partition of an estate,and also by quantity, plied covenant that the quantity of land conveyed,shall quantitjTmentioned in the grantee has a íand\v¡thinthe the boundaries.</p>

In Error. A FEIGNED issue having been directed by the Register’s Court to the Court of Common Pleas of Chester county, to try the validity of an instrument of writing • , J , , , ~ , -r . , porting to be the last will and testament of Jacob Lewis, deceased, the trial took place on the 10th November, 1819, when the presiding Tudge delivered the following charge to the • »• i * r i i r 6 t ¶ • »rr % jury, which, at the request of the counsel for the plaintiff, he filed of…

<p>AN application having been made to this Court by a portion of the members ofthe Roman Catholic Society worship-P,no at St. Mary’s Church, to sanction certain alterations proposed to be made in their charter, which were opposed by other members, a hearing took place on the 16th of this month, As the case was opened by the counsel, it involved a variety of topics highly interesting in themselves, and rendered still more so by the unhappy disputes which have for some time bePrevailed in that congregation. The Court, however, having requested the counsel to confine themselves to a single point, nothing further will be here stated than is necessary properly tQ introduce it.</p> <p>By an act of assembly passed 13th September, 1788, the members of the religious society of Roman Catholics, inhabiting the city and county of Philadelphia, and belonging to the congregation worshipping at the church of St. Mary, were incorporated by the name, style, and title of The trustees of the Roman Catholic Society worshipping at the church of St. Mary’s in the city of PhiladelphiaThe trustees, by the name aforesaid, and their successors, to be elected in the manner prescribed by the act of incorporation, were to have perpetual succession, and were invested with all corporate powers. The second section of the act of incorporation named the three clergymen, who were then pastors of the church, and eight members of the congregation, as the first trustees, and. declared that the future trustees should consist of the pastors of the said church for the time being, duly appointed,, not exceeding three in number, and of eight lay members, whose election, on the Tuesday of Easter week in every year, by the members of the congregation holding pews, or parts of pews, and paying for them not less than fifteen shillings by the year, was provided for by the third section.</p> <p>From the minutes of the board of trustees, it appeared that on the 15th July, 1805, a committee was appointed to draft amendments to the charter, to be laid before the board at their next quarterly meeting. One of the members of the committee having died, his place was supplied on the 20th October, 1807, by a new appointment; and on the 30th of the following November, the committee reported certain amendments, which were agreed to, and ordered to be presented to the attorney general for his sanction. The signatures of the members of the congregation were, at the same time, directed to be procured, in order to carry the proposed amendments into effect. On the 9th November, 18C8, the same committee was continued, with instructions to petition the legislature for an amendment to their charter. On the 1st March, 1820, the committee reported a bill for this purpose, which was adopted by a considerable majority. On the 26th March, in the same year, notice was given by the secretary of the board of trustees to the congregation, to attend a meeting on the 28th of the same month, on business of importance. At the time appointed, the meeting took place, when it was resolved, that the committee already appointed for procuring an act of the legislature, should be continued; and they were required, in case of obtaining such an act, immediately to call a meeting of the congregation, by at least one week’s notice, in order to consider and adopt such alterations and amendments as to them might seem proper. An act of the legislature, authorising the charter to be amended, having been procured on the 20th March, 1821, the committee, on the 31st of the same month, called a meeting of the congregation to be held at the Washington Hall, on the 7th April, in order to decide upon such alterations as might appear to be expedient. Prior to this, viz: on the 5th April, 1820, an election for trustees took place, when only one of the members of the committee was elected into the new board. By the act of assembly just referred to, the society of St. Mary’s Church were authorised to improve, amend, and alter their charter “ in the same manner, and with the same privileges and powers, as corporations established by virtue of an act of assembly, passed the 10th day of April, in the year of our Lord 1791, entitled ‘an act to confer on certain associations of the citizens of this Commonwealth, the powers and immunities of corporations or bodies politic in law.’ ” The first section of the act of the 10th April, 1791, authorises any number of persons, citizens of this Commonwealth, who are desirous of associating for any literary, charitable, or religious purpose, and of acquiring the powers and immunities of a corporation, to prepare an instrument in writing, specifying'the objects, articles, conditions, and name, under which they desire to associate, which they are to exhibit to the attorney general, who is to transmit the same to the Supreme Court, with his opinion thereon endorsed, touching the lawfulness of the objects, articles, ahd conditions contained and set forth therein ; and if both the attorney general and the Supreme Court are of opinion, that the objects, &c. are lawful, it is to be sent to the governor, who is authorised to order it to bé recorded, upon which the persons associated, immediately become a corporation, to have, continuance by the name, style, and title in the said instrument declared. The second section provides, that as often as the corporations established by virtue of the 6aid act, and the successors thereof, respectively, shall be desirous of improving, amending, or altering the articles and conditions of the instrument upon which they are formed and established, it shall be lawful for such corporations, respectively, in like manner to specify the improvements, amendments and alterations which shall- be desired, and the same to exhibit and present to the attorney general and Supreme Court, who shall,' in like manner, certify their opinion to the governor, touching the lawfulness of such improvements, &c.; and the same being certified, as aforesaid, to be lawful, shall, in like manner be directed by the governor to be recorded, and upon recording thereof, shall be taken and deemed to be a part of the instrument upon which such corporations, respectively, were formed and established, as if the same had originally been a part thereof.</p> <p>A meeting of the congregation took place, agreeably to the notice, at the Washington Hall", when certain alterations and amendments to the charter, the principal objects of which were to exclude the clergy from the board of trustees, and to alter the time of holding elections, were proposed and adopted, according to the testimony of the chairman of the meeting, by a large majority; the minority manifesting their disapprobation in a disorderly manner. These alterations and amendments did not receive the sanction of the existing board of trustees, who, on the contrary, at a meeting on the 10th April, 1821, at which were present the three clerical, and four lay members of the board, protested against them as illegal,. unfair, and unconstitutional. .</p> <p>, The Court requested the counsel to speak first to the point, whether it was not necessary that the amendments should be proposed by the corporation, and not by the individual members of the church.</p> <p>The trustees are to be governed by the act of 1788, which ■ confers no such rights as they now claim. If these pretended rights are recognised, they will tend to the subversion of the charter itself, and put it in the power of evil disposed men to perpetuate the existing evils. Though the trustees are necessary to conduct the temporal concerns of the society, and to give a name to the body, they do not constitute the corporation, which is composed of the members of the congregation at large, in whom all the interests of the body reside. Without the consent of the congregation, the trustees could not effect an alteration of the charter ; their acts, against the will of the society, would have no operation ; consequently, they cannot counteract an object which the body of the congregation wish to effect. The language of the act of 1788, designates the members as those who essentially compose the corporation. It is entitled, “an act to incorporate the-mm. hers of the religious society of Roman Catholics,” &c.; and the first section declares, that the members of the society are erected into a body politic. The act of 20th March, 1821, which was passed to meet the present exigency, authorises the members of this society to amend their charter in the manner provided for by the act of 10th April, 1791, and this act also contemplates the individuals who compose the society as constituting the corporation. The first section speaks of persons associating for literary, charitable, or religious purposes; and the second section provides for an application for amendments in like manner as the original application was made. As the original application was to be made by the members of the body at large, it necessarily follows that the amendments were to be applied for in the same manner. In no fewer than three instances do the legislature place an application for amendments on the same footing as an application for an original charter, thus restoring the members to the state in which they were before the charter, and giving them power • to re-model it as they please. An application for this purpose need not' be sanctioned by the corporate seal. Between strangers and themselves, their contracts must be exhibited by their common seal; but in a controversy between the different members of the same corporation, it is unnecessary ; their books and minutes are sufficient.</p> <p>If, however, an application for amendments must be the act oí the board of trustees, their sanction is not wanting. In the year 1805; a committee of the board was appointed expressly for the purpose of drafting amendments. In 1807, a draft of amendments was submitted to the board; and in 1820, the committee reported a bill on the subject. Thus the board of trustees originated the very matter in controversy; and after having exercised that power to a certain extent, they delegate it to the congregation, whom they call together for the purpose of considering the amendments, and by whom the committee originally appointed by the trustees, are continued. This committee, therefore, were the agents both of the congregation and the trustees, and, in procuring the act of 1821, and proposing the contemplated alterations, they acted under the sanction of all the authorities known to the corporation.</p> <p>This Court can receive no application for alterations of the charter of St. Mary’s Church which does not proceed from the corporation, attested by their common seal. This corporation is composed of the trustees, duly appointed and elected, who are the organ through whom alone the church can speak. The incidents to a corporation are succession and a common seal. The members of the religious society worshipping at St. Mary’s Church have, by the act of 1788, no succession. The corporate powers, and the right of succession, are given to the trustees, some of whom, the members who possess certain qualifications, are entitled to elect. The original charter was granted to the members of the society then residing in the city of Philadelphia and its vicinity, but not to their successors. The present members are not those to whom the charter was given, and if they possess the power contended for, they may destroy every corporate right guaranteed by the charter. According to that instrument it is necessary to hold a pew, and pay at least fifteen shillings a year, to entitle a member to vote; but these qualifications may be taken away with as much facility as the clergy can be deprived of a seat at the board of trustees, which is the leading object of the proposed alterations. The act of 1821, did not contemplate a dissolution and renovation of the body politic. Its objects were amendments and alterations, which are incompatible with the idea of total destruction. These amendments and alterations are to be obtained in the manner pointed out by the act of 1791, which, although it authorises individuals,' associating together for certain purposes, to be incorporated, yet, when speaking of amendments, it uses a different language, and declares that jthey' shall be granted upon the application of the corporation, which can be made only through the medium of the corporate seal. lKyd on Corp. 267. Taylor v. Dubrick Hospital, 1 P. Wm. 655. 2 Bac. Ab. 9. (Wils. ed.) 1 Tern. 117. Wick v. Meal, 3 P. Wm. 310. 6 Fin. 267. 1 Bl. Com. 473.</p> <p>The idea that the board of trustees have sanctioned the present proceeding, is altogether erroneous. They have never acted in the business. The powers of the committee appointed in February, 1820, expired with the board who constituted them, and two of the three were not even elected members of the new board. These alterations were never submitted to the corporation, who, so far from having given them their sanction, have positively protested against them.</p>

<p>Tliis Court will not, on the petition of a majority of the members ofan incorporated society, award a mandamus to compel the body in whom the corporate powers are vested, to affix their common seal to alterations and amendments to their charter, contrary to their own judgment.</p>

In ERROR. PRADT.\ who was plaintiff below, instituted a suit in the District Court for the city and county of Philadelphia, against Ordroneaux, to December Term, 1818.

<p>icsMienlaw’1* 18061'do®?”* not authorise a erection of several houses owned by different persons, though the houses join each other.</p> <p>Nor is the case altered by proving on the trial what materials were furnished for each house. Piling a joint claim is a void act.</p>

<p>Certiorari.</p> <p>THE Questions arising upon the return to this certiorari from the Court of Quarter Sessions of Philadelphia county, were argued by Delany and Condy for Philadelphia county, and by C. S. Coxe, and P. A. Browne, for Spring Garden.</p>

<p>HABEAS CORPUS to the keeper of the prison of Philadelphia, to produce the body of James King, together with the cause of his detention. The return stated, that he was detained by virtue of a commitment by the Mayor of the city of Philadelphia, as the apprentice of John Preece, from whose service he had absconded. On the hearing it appeared, that, by an indenture dated the 2d September, 1816, James King, with the consent of his guardian, bound himself apprentice to John Preece, of the city of London, for the term of seven years, to learn the art of a gold beater. In the year 1819, Preece removed to Philadelphia, and brought his apprentice with him ; but it did not appear that any compulsion had been used to make him accompany his master.</p> <p>The question before the Court, was upon the validity of the indenture, after the removal of the apprentice from England.</p>

<p>If the hus*» band give a fraudulent mortgage to defeat the wife’s right of dower, it is void as to that right and as to creditors;</p> <p>Rut the mortgagor cannot set up the fraud, nor his represent** atives after his decease;</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Dauphin ■county, on which a bill of exceptions was returned with the record.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of rnmi tv • County.</p> <p>The suit in the Common Pleas was an appeal by Thomas Garey, the defendant, from the judgment of a justice of the peace in favour of Rufus Shapley, rendered upon a single bill signed and sealed by Garey, dated the 10th June, 1816, by which Garey promised, two months after date, to pay to Shapley, his heirs or assigns, the sum of 54 dollars and 45 cents, for value received, and authorised any justice of the peace to enter judgment and issue execution for the above sum, with costs, on default made. The suit and judgment before the justice were on the 9th August, 1816.</p> <p>On the-trial in the Court below, the Court charged the jury, that when the word 'month is used in a bond, note, or single bill, the law intends calendar, not lunar months, and that the single bill in this case was not due until the expiration of two calendar months after it was dated and given. To this opinion the plaintiff excepted. The jury gave a .verdict for the defendant, and judgment was entered accordingly.</p> <p>The single bill was payable in . two months from its date, and the question is, whether these months are lunar or calendar ? I contend that they are lunar. The general principle is, that a month in law is lunar, or twenty-eight days, unless otherwise expressed. 3 Bl. Comm. 141. In Jocelyn v. Hawkins, 1 Str. 446, in a contract to deliver stock in one month, the month was construed a lunar month, notwithstanding evidence of the general understanding of merchants to the contrary. The same construction took place in Barks-dale v. Morgan, 4 Mod. 185, where there was a covenant to pay in one month next following j and the Court say, that the common understanding is, that a month is twenty-eight days,, "except in cases of quare impedit. In Dormer v. Smith, Cro«■ Eliz. 835, the same principle is laid down. In the Bishop of Peterborough v. Katisby, Cro. Jac. 166, in relation to the time of collating, the tempus semestre is held to be half a year of 365 days, but it is said that in case of a condition f<5r rent, months are lunar. In Pennsylvania, where there was an imprisonment of one month on an attachment for contempt, it was construed to mean a lunar month. Commonwealth v. Oswald, 1 Dali. 329.</p> <p>Whatever might have been the original rule of the common law, it is in modern times changed with the alteration of circumstances, and is now adapted to the common understanding of mankind in their transactions. By a month, at present, is not usually understood a lunar, but a calendar month ; ánd in England as well as here, the construction is according to the intent of the parties. In bills of exchange and promissory notes, months are considered calendar months. Chitt. on Bills 277. 1 Johns. Cases 99. As used in the act for recording of mortgages passed the 28th May, 1715, the .word, months, has the same interpretation. 2 Dali. S02. So too, in the acts for the abolition of slavery. 4 Dali. 14S. •</p> <p>in reply insisted, that negotiable-paper, formed an exception to the general rule. In negotiable paper three days grace are allowed. But these exceptions do not apply to a single bill.</p>

In Error. ERROR to the Court of Common Pleas of Dauphin county. A capias had been issued* by the.plaintiffs, Roop and Brubacker, executors of Brubacker against Meek, in the Court of Common Pleas of Dauphin county, and the sheriff returned “ cepi corpus and bail bond.” Afterwards, special bail not being entered for several terms, the plaintiffs took an assignment of the bail bond, and brought this suit upon it against Meek and the bail.

In ERROR. THIS cause came before the Court oft a writ of error to the Court of Common Pleas of York county, in a suit brought ^ Samuel Nicholson, the plaintiff in error, against Jacob Eichelberger, sheriff of York county.' On the trial, the deposition of Thomas Bidwell was offered in evidence on the part of plaintiff, and rejected by the Court. A bill of exceptions was taken by the plaintiff, and the only question was, whether the deposition was evidence ?

In Error. ERROR to the Court of Common Pleas of Dauphin COUIlty* ^ In the Court below, this case was an appeal by the ant , below, George Cochran, from the judgment of J^ohn Kean, esquire, a justice of the peace of the county of Dauphin, in a suit brought against him by Edward Parker, by his agent John Wyeth. Judgment was rendered by the justice in favour of the plaintiff, on the 27th April, 1818, and on the same day the defendant appealed.

Certiorari. ERROR to the Court of Quarter Sessions of Berks county. i Guldin, the defendant below, was indicted for fraudulent insolvency.

<p>an'execiuói'y devise over, m case she should die in and without'’ lawfui issue, If she die in her minority lTwfuUss™1 but leaving surviving her, income or profits of the sona|aest¡!te'" beyond what was expendcd in the Mil ednoa-0 tion of the daughter, he" personal representaband. Devise of parts of the real estate,and the whole personal estate of the testator,after paymentof hisdebts,tohis daughter, her heirs, executors, administrators, and</p> <p>suohwiif'liireef that the daughter shall be maintained and educated out of the estate, at the direction and discretion of her guardians named therein, they are bound to maintain and educate her out of the profits of theestate in the first instance, and cannot, if they are sufficient, break in upon the principal of the personal es-^ tate, for the purpose of creating a greater accumulation of the profits of the real estate*</p>

<p>If the piala— tifPs counsel ask a question which is°an-cannot ass^T for error that charged*™ of fa6t* application is j^'op'eíiy submitted</p> <p>By i-ecordnot relinquish anv other title he possesses</p> <p>Apartycanofthe°Court^ “n m his</p>

ON a certiorari to the Court of Quarter Sessions of Philadelphia county, this appeared to be an appeal to June Session, 1816, of that Court, from an order of two justices of t'le Peace f°r the removal of Patience Evans, a pauper, from Bristol township to thecityof Philadelphia.

<p>On an indictment for uttering a forged paper, purporting to be a bank note, ^ defraud A. B., it is not necessary to prove the existence of the bank, unless the indictment avers that it was incorporated, or that the act was done with an intention to delraud such bank.</p> <p>It is not necessary to prove that the note is forged by the testimony of the President and Cashier, whose signatures are alleged to be counterfeited. A witness, who has become acquainted with their hand writing in the course of an official correspondence, is sufficient; and the case is strengthened, if the witness can state, that, from his knowledge of the paper, type, and whole appearance of the note, he believes it to be a counterfeit.</p>

ON the trial of this cause, before Duncan, J. at Prius, in February, 1821, a verdict was taken for the plaintiff subject to the opinion of the Court on the evidence. It was . . . ,.. , , , . . . . . a sjctre Jactas upon a recognisance ol bail, entered into in this Court, by the defendants, as bail of Robert Harrison, on writ of error to the District Coart for the city and county of Philadelphia, against William Smith, the plaintiff.

THE prisoners, Cook, Caldwell, and Ross, had been in-dieted at a Court of Oyer and Terminer, held by the Judges of the Court of Common Pleas of the county of Philadelphia, J r 7 in the months of April and May last, for the murder of Samuel Alwine.