Volume 6 — Watts's Pennsylvania Reports

<p>Whenever the substantive ground of an action against an infant is contract, as well where the contract is stated as inducement to a supposed tort, as where it is not, the plaintiff cannot recover.</p>

<p>A bequest of the interest or produce of a fund, without limitation as to the extent of its duration, is a bequest of the fund itself</p>

John Heffner and others against Peter Knepper and Jacob M’Ferran. The following case is stated for the opinion of the court, subject to writ of error, by either party. The title to the lands, for which this ejectment was brought, it is admitted, Avas vested in fee simple in John Heffner, deceased. On the 30th of August 1823, the said John Heffner made his last aaúU and testament, duly proved and recorded.

<p>After the lapse of seven years, the lands of a decedent are discharged from the lien of his debts not of record, whether they be in the possession of the heir or a purchaser ; and the fact that the heir or a purchaser knows of the existence of a debt, and the heir agrees that it shall be binding upon the estate, does not alter the case; the purchaser is required only to look to the record; parol proof will not affect him.</p>

<p>ERROR to the common, pleas of Berks county.</p> <p>This was an action of debt upon a bail bond, by Henry Bowman, for Jacob George, against David Nice, John Roth, and Charles Rhodes.</p> <p>The writ was returnable to November term, 1835. The declaration was filed on the 11th of April 1836, and on the same day judgment was signed, and a fieri fiadas issued. On the 7th of November 1836, the court granted, a rule to show cause why all the proceedings in the case should not be set aside, upon the payment of costs of the suit, and the defendant confessing judgment in the original. Upon the hearing of this rule, the defendant gave in evidence the following paper, which had been filed among the papers in the original action against David Nice, on the 2d of October 1835, before payment had been signed.</p> <p>“ We, John Roth and Charles Rhodes, acknowledge ourselves to be held and firmly bound unto the plaintiff, in the above stated case, in the sum of 600 dollars, as special bail for the defendant in the above stated suit.”</p> <p>On the 13th of August 1835, David Nice was discharged as an insolvent debtor.</p> <p>The court below (Banks, president) discharged the rule, whereupon this writ of error was sued out, and the following errors assigned.</p> <p>1. The court erred in entering judgment for default of the defendants’ appearance; no declaration being filed until the 11th of April 1836; nor then, a declaration on which judgment by default could be founded in this case.</p> <p>2. The court erred in discharging the rule to show cause why the judgment should not be opened and proceedings set aside.</p> <p>3. The court erred in refusing to enter an exoneretur on the bail bond upon which the suit was brought, special bail having been entered in the original case before this suit was instituted.</p> <p>4. The court erred in refusing to enter an exoneretur on the bail bond, upon the production of the discharge of David Nice, under the insolvent laws.</p> <p>5. There was also error, in issuing a fieri facias before a writ of inquiry had.</p>

This was an action of trespass, by Dominick 'Eagle against Adam Eichelberger, sheriff of York county, for levying and selling certain personal property, which he alleged to.be his, upon an execution against C. F. Laise. The goods levied were in the store of Laise, and had been purchased by Eagle, the plaintiff, and the question was, whether the sale was fraudulent as to creditors, which depended upon parol testimony, of which the portion following is material.

<p>ERROR to the common pleas of Dauphin comity.</p> <p>Debt upon a recognizance in the orphans’ court, for 23,595 dollars, conditioned for the faithful discharge of the duties of Jacob Hise and John Lowman, in making sale of the real estate of John Hise, deceased, and paying over the proceeds as the said court should decree.</p> <p>The aclion was brought hy the Commonwealth for the use of John N. Miilemore and wife, who was a daughter of John Hise, deceased, against Samuel Fool, a co-cogniser with Jacob Hise and John Lowman, administrators of John Hise, deceased.</p> <p>The plaintiff gave in evidence a proceeding in partition in the orphans’ court of Dauphin county, upon the petition of Jacob Hise, one of the children of the intestate, which resulted in an order to the administrators of John Hise, deceased, to make sale of the estate, and they then entered into the recognizance upon which this suit was brought. The plaintiff then gave in evidence the return of the sale by the administrators, upon which a decree of distribution was made by the orphans’ court, awarding to each child the sum of 1114 dollars 90 cents. To recover this sum the present suit was brought. The defendant resisted the plaintiff’s recovery upon the ground that there were debts of the intestate to which the administrators had applied the proceeds of the sales of the real estate, and as evidence of it produced and gave in evidence two administration accomits, settled by them in York county, in which they had charged themselves with the amount of the sales of the real estate, and obtained credit for certain debts paid by them. This evidence was objected to by the plaintiff, mainly upon the ground that the decree of distribution among the heirs, of the proceeds of the sale of the real estate, by the orphans’ court of Dauphin county, was conclusive, and the administrators had no power to make any other appropriation of them; but the court below being of a different opinion, received the evidence, and sealed a bill of exceptions at the instance of the plaintiff.</p> <p>The defendant offered in evidence also a judgment of Martin Rupp against the administrators of John Hise, deceased. John Hise died in 1819, and this judgment was obtained in a suit brought against his administrators, in 1835, founded upon an account against the intestate, from 1814 to 1817, of 1073 dollars 56 cents. The plaintiff objected to the evidence, on the ground that the debt was barred by the act of 1797, in favour of the hens; but the court received the evidence, and in their charge to the jury, said that it was a valid claim upon the money in the hands of the administrators. This was, also, the subject of exception.</p>

Samuel Reader against Henry M’Kinney and John Nise. This was an action of trespass vi el armis, for breaking and entering the tavern house of the plaintiff, and carrying away his goods. The defendants pleaded not guilty, and justified, under a warrant of distress for rent, the said Henry M’Kinney being the owner and landlord.

<p>Testator appointed, as his executors two persons who were indebted to him on bond, one as principal, the other as surety. Held, that this was a release of the bond as to both, and that the amount thereby became assets in the executor’s hands.</p>

<p>ERROR to the common pleas of Lebanon comity.</p> <p>Adam Rise, for the use of his creditors, against Charles Gleim.</p>

APPEAL by Jacob Sypher, administrator of Henry Long, deceased, from the decree of the orphans’ court of Perry county, upon the settlement of his administration .account. The facts are sufficiently stated in the opinion of the court.

John Wynn against W. B. & T. Hunt. This action originated before a justice of the peace, from whose judgment the defendants appealed.

<p>ERROR to the common pleas of Berks county.</p> <p>This was an action of ejectment for a tract of land, by Adam Lies against John Stub, and William Stub, and all the other de- ■ visees of Adam Stub, deceased, as tenants in possession.</p> <p>The plaintiff gave in evidence, the will of Adam Stub, deceased, dated the 5th of July 1832, which contained the following clauses:</p> <p>“ It is my will, that my two sons, John and Jacob, shall have my plantation with the appurtenances thereunto belonging, for the sum of 10,000 dollars, being the plantation I now live on, situate in the township of Tulpehocken, as aforesaid, which 10,000 dollars shall be equally divided amongst my twelve children, including the two that takes the plantation, in manner following: 1000 dollars yearly, till paid. The said plantation shall not be divided into more than two tracts, unless my children will agree and divide it into more, amongst themselves; provided John and Jacob will not take the plantation at the above price, then one or two of my other sons may have the next chance to take it at the same price; and if none of my sons will or should take it at that, then one or two of my sons-in-law may have it at the same price; and should none of my children take it, then I do order and direct that my executors hereinafter named, or the survivor of them shall, as soon as conveniently, sell and dispose of my said plantation, with the appurtenances to such person or persons, and for such price or prices, as may be reasonably gotten for the same.</p> <p>“And as touching all the rest, residue, and remainder of my estate, real and personal, of what kind or nature soever the same may be, in the county of Berks, aforesaid, or elsewhere, I give and devise the same unto my twelve children, and all the above mentioned mito my twelve children, Magdalena, Sarah, John, Michael, Elizabeth, Anna Maria, Jacob, Peter, Susanna, Catharine, William, and Samuel, and to their heirs and assigns forever, to be equally divided among them.</p> <p>“The 1000 dollar payment, as above mentioned, or any money that is first paid to my heirs, shall be paid to those that has not received any, or until they have as much as the others, so until they are equal; and I do hereby authorize and empower my hereinafter executors, or the survivor of them, to sign, seal, execute, and acknowledge all such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the same to the purchaser or purchasers thereof, in fee simple.</p> <p>“ And lastly, I nominate, constitute, and appoint my two sons, Michael and William, to be the executors of this my will, hereby revoking all other wills, legacies, and bequests, by me heretofore made, and declaring this and no other to be my last will and testament.”</p> <p>He then gave in evidence, an agreement, dated the 9th of February 1833, signed by all the devisees and legatees of the testator, that they, each and all, refused to take the land, and that the executors should sell it, as the will directed. In pursuance of which, the executors sold the land at public sale, on the 15th of November 1833, to Adam Lies, the plaintiff, for 67 dollars 25 cents an acre, amounting to 13,040 dollars. Before suit brought the plaintiff tendered the purchase money.</p> <p>The defence was, that John, one of the devisees, would not agree to the sale of the land, that he had always resisted it, up to the time when the agreement referred to, of the 9th of February 1813, was executed, and desired to take the land himself; and that his brothers insisted upon it, that he had no right to take under the will; eventually he agreed to refer the question to Joseph D. Biles, whether he had or not, a right to take, and Mr Biles gave him his opinion, that he had not; then he signed the agreement to sell; but before the day of sale arrived, he was differently advised, and gave notice to the bidders at the sale, that no title should be made, that he would take one half, or the whole of the land, under his father’s will. And on the 28th of November 1833, he tendered to each of the heirs their share of the valuation money, due as the first payment.</p> <p>Upon the trial, the defendants offered William Stub, one of the defendants, as a witness. The plaintiffs objected to him, on the ground of interest and of his being a party to the suit. The court overruled the objection, for the reason that the witness’s interest was in favour of the plaintiff’s recovery. The plaintiff excepted.</p> <p>The court below charged the jury, that if they believed that John executed the agreement in ignorance of his rights, and in consequence of an imposition practised upon him by some of his brothers, he was not bound by it; and if he gave notice at the sale, of the circumstances under which he had signed the agreement, there was no such contract made with the purchaser as it would be inequitable to interfere with. The court was also of opinion that John had a right to take the half of the land, or the whole of it if all the other devisees refused to take.</p> <p>Errors assigned.</p> <p>1. The court erred in admitting William Stub as a witness.</p> <p>2. The court erred in charging the jury, that John Stub could take the place alone, under the will, if Jacob refused taking.</p> <p>3. The court erred in charging the jury, that if John was mistaken, as to his rights, under the will, his agreement that the land should be sold did not bind him.</p> <p>4. The court erred in charging the jury, that the rule that ignorance of the law does not protect a party from the obligation of his contract, did not apply in tins case.</p> <p>5. The court erred in leaving to the jury to find that the plaintiff had full notice of John’s mistake, acceptance, and claim, when there was no evidence of such notice.</p> <p>6. The court erred in charging the jury, that John Stub could take the place alone.</p> <p>7. The court erred in leaving it to the jury to find that the plaintiff had notice of fraud practised on John, when there was no evidence from which the jury could find such notice.</p> <p>8. The court erred in charging the jury, that if the plaintiff, at the time of purchase, had full notice of the facts in regard to John’s mistake, acceptance, and claim, he cannot recover.</p>

Joseph Hiester, Esq. obtained a judgment upon a scire facias on a mortgage against John Mohn for default of appearance, on the 16th of January 1830. A levari facias and alias levari facias were issued upon this judgment, each of which recited the debt to be 2930 dollars, with interest from the 10th of October 1837. The land was sold in 1837.

<p>A testator having devised his plantation to his two sons, to be divided between them by a line beginning at a certain point, and running between two certain points, so as to include a given number of acres in one part, it was held, that the division line must be straight: and that it was erroneous to submit to the jury as a matter of fact, what the intention of the testator was; the interpretation of the will belonged to the court.</p>

Scire facias sur mortgage. Garber and O’Connor against George W. Henry, with notice to terre-tenants.

<p>ERROR to the common pleas of Franklin county.</p> <p>This was an action of ejectment for fifty acres of land by David Brown against Robert .M’Cormick. The facts are particularly stated by the court below in their charge to the jury, which was assigned for error.</p> <p>Thompson, (president.) The plaintiff, to make out his title, has given in evidence a location ha the name of Thomas Barnet, for three hundred acres adjoining George Goodwin, dated the 2d of February 1767. A survey upon it containing three hundred and eight acres and one hundred perches, made on the 1st of May 1769; this survey has been returned into the surveyor-general’s office. The plaintiff’s counsel then read in evidence a deed for the land contained in this survey, dated the 16th of November 1797, from Uriah Brown, David Brown and Mercer Brown to Robert M’Connel; it appears further, that on the same 16th of November 1797, Robert M’Comiel gave his two bonds, each conditioned for the payment of 120 pounds, 9 shillings and 4 pence, to David Brown, one payable the 1st of November 1798, and the other payable the 1st of November 1799: another bond conditioned for the payment of a like sum to Uriah Brown, on the 1st of November 1800; and a fourth conditioned for the payment of a like sum on the 1st of November 1801, to Mercer Brown. • These are all judgment bonds, and amount together to 1285 dollars, the consideration mentioned in the deed from Uriah, David and Mercer Brown to R. M’Connel. Upon these bonds four judgments were entered upon the 22d of November 1797; Nos. 106, 107,108 and 109 of October term 1797. Afterwards to January term 1801, a fieri facias w as issued on the judgment in favour of Uriah Brown, which was laid on the same land contained in the deed from the Browns to M’Connel. To January term 1805, No. 47, a venditioni exponas was issued in the case, marked for the use of David Brown, by virtue of which the land was, on the 19th of February 1805, sold to David Brown for 310 dollars. The sheriff’s deed was made to him and acknowledged in open court on the 6th of April 1805. To August term 1825, No. 132, an ejectment was brought by David Brown against Francis M’Connel, who, it seems, was a son of Robert M’Connel, for this tract of land. On the 21st of August 1826, William Harvey and James M’Connel were added as co-defendants: William Harvey afterwards died; his death was suggested on the record, and afterwards, on the 21st of August 1827, judgment was entered against the other defendants, by non sum informants. As the representatives of Harvey were not brought on the record before the judgment was entered, it did not affect them. The present suit was then brought to January term 1833, to recover from Robert M’Cormick, the present defendant, that part of the tract which was then in the possession of William Harvey.</p> <p>From the evidence on the part of the defendant it appears, that an application was taken out in the name of Robert M’Conahey for •three hundred acres, dated the 9th of January 1767, on which a survey was made on the ground at an early period; the exact date is not mentioned. The survey was never regularly made out and returned into the surveyor-general’s office. It contains one hundred and one acres, thirty-one perches, and interferes with the survey in the name of Barret to the amount of fifty-seven acres, forty-five perches. This interference contains the land in dispute; it also interferes with the survey of Francis M’Connel, and with that in the name of George Goodwin. It appears that Robert M’Connel claimed the survey in the name of R. M’Conahey as early as 1788; but how he claimed, does not appear. On the 2d of January 1788 he and his wife conveyed the land contained in it to William Harvey, by a deed containing a covenant of seisin and of general warranty. This deed was recorded in book A, page 549, on the 2d of May 1788: it appears that there was a field cleared on the ground before this time, which contains about ten acres, and is marked on the plot with the title C. Harvey went into possession in May 178S, and he and his heirs have held it ever since. William Harvey died in 1S09, leaving a son William, who died in 1826 or 1827, without issue, and a daughter, who is intermarried with M’Cormick, the defendant, who is now in possession. There are two other small fields on the land in dispute in the possession of the defendant; one of them marked E, cleared within the last three or four years, and the other marked D, on the plot cleared ten or twelve years ago. This brings me to turn your attention to the points of law presented for the consideration of the court by the counsel of the plaintiff. In answer to the first, second and third points, which all relate to the same subject, the court instructs you, that if you believe the evidence, this is a case of interfering surveys. In such cases the law adjudges the possession to be in him who has the best right, as the act of limitation has no operation against him, except his opponent take an adverse and exclusive possession. 2 Serg. fy Rawle 439. In such a case, the party claiming the protection of the statute must show an actual, adverse, visible and notorious possession by inclosures or clearing and. cultivation, and he is protected no further than such possession has continued for twenty-one years before the suit brought. In this case, if you believe the facts as I have stated them, the statute protects the defendant only so far as relates to the ten acre field, marked on the plot with the letter C, of which he and those under whom he claims, appear to have had possession ever since. 1788. As to the other fields, if you believe the testimony, they have been cleared less than twenty-one years before this suit was brought: this being the case, the statute does not extend either to them or the woodland, though it may have been used for taking timber from it for firewood, fencing and the like.</p> <p>The fourth point raises a question of much more importance. It appears in evidence in addition to what I have already stated, that on the 2d of October 1792, one John Brown made a deed to Robert M’Connel, conveying by the same courses, distances and boundaries as the lines of the survey in the name of M’Conahey, describing the land as one hundred and one acres and thirty-one perches, the exact quantity in that survey, but calling it a part of the tract surveyed for Goodwin on his warrant. It appears further that M’Connel, for this conveyance, gave his bond to David Brown for 50 pomids. This transaction would seem to indicate a desire, on the part of M’Connel, to make Harvey secure in the title which he had sold him to the land included in the same boundaries.</p> <p>The plaintiff here claims under the sheriff’s sale, upon the judgment against Robert M’Connel, and he has no other or better title than M’Connel had: on the day that the judgment was entered up, M’Connel, by his deed of 1788, duly recorded, had already conveyed the land in dispute to William Harvey. In the absence of proof to the contrary, it is to be intended, that one of the objects that M’Connel had in view, in making the purchase from the Browns, was, to confirm to Harvey the deed which he had made to him, of the land in question. When the plaintiff and his brothers, Uriah and Mercer Brown, conveyed to Robert M’Connel, they took the four judgment bonds I have mentioned, to secure the payment of the purchase money. These bonds were but a personal security until they were entered up. After the delivery of the deed, and before they were entered up, they had no lien whatever on the land. The bonds were not entered up until the sixth day after the deed was made. In the mean time M’Connel might have conveyed the property to any purchaser, who, if there was no fraud, would have held it clear of any claim for the money due on the bonds. He might have made a release of the right to the land in dispute, which he had acquired, to Harvey, in confirmation of his former deed, without any new consideration. I am therefore of opinion, upon the eifect of the deed from Robert M’Connel to William Harvey of the 2d of January 1788, without saying whether it operated as a technical estoppel or not, that the legal effect of it was, to pass immediately to Harvey all the right which Robert M’Connel acquired to the land in dispute, by virtue of the deed from the plaintiff and Uriah and Mercer Brown; that when the judgment, on which the sheriff’s sale was made, was entered up, M’Connel had no interest in the land, to be bound by it, and that consequently the plaintiff cannot recover any part of the land in question; and your verdict must be given for the defendant.</p> <p>Exception on part of the plaintiff.</p> <p>Error assigned.</p> <p>The court erred in charging the jury that the legal effect of the deed from Robert M’Connel to William Harvey, of the 2d of January 1788, was to pass immediately to Harvey all the right which Robert M’Connel acquired to the land by virtue of the deed from the plaintiff and Uriah and Mercer Brown, that when the judgment on 'which the sheriff’s sale was made was entered up, M’Connel had no interest in the land to be bound by it, and that consequently the plaintiff cannot recover any part of the land in question; and your verdict must be for the defendant.</p>

<p>The keeper of a public house or inn cannot recover in an action upon a book account, for liquors or any other tavern reckonings, which exceed in amount twenty shillings.</p>

Debt for a legacy. Peter Fertig, executor of Catharine Martin, deceased, against Peter Fertig, administrator, with the will annexed, of Marcus Martin, deceased.

<p>A court of chancery is alone competent to determine whether a condition imposed by its interlocutory decree has been performed. A court of law in a collateral proceeding cannot inquire into it; much less would it have power to pronounce the requirements of a decree in chancery to be satisfied by equivalents.</p>

<p>Qum'e. Whether the act of one of two joint guardians be binding upon their wards. But if both the guardians or their wards afterwards derive a benefit from the act done, it is as binding upon them as if both had originally agreed to it. One of two joint guardians may accept a benefit bestowed upon their wards.</p> <p>The reference of a matter of fact to a jury about which there is no proof, is erroneous.</p>

<p>ERROR to Dauphin county.</p> <p>This was an action of assumpsit by Joel Bailey, guardian of James M’Clintock, against John C. Bucher. James M’Clintock died intestate, seized of real estate and leaving issue, of whom Joel Bailey was guardian of one, the plaintiff, and John C. Bucher of others. The estate of the minors was in charge of John C. Bucher, who received the rents, as alleged. And this action was brought by the plaintiff to recover the share of his ward. The defendant pleaded a tender as to 21 dollars 52 cents, and brought the money into court, and non assumpsit as to the balance of the plaintiff’s claim.</p> <p>The court, upon the request of defendant’s counsel, instructed the jury, that under the facts of the case, the action of assumpsit was not maintainable, but account render only, except as to the amount tendered. Verdict for plaintiff for 21 dollars 52 cents.</p>

<p>The surety of an administrator for the faithful performance of his duties in making sale of the real estate of his intestate for the payment of debts, is not discharged from liability by a return to the first order of the court, “unsold for want of bidders;” but he continues to be liable for the faithful appropriation of the proceeds of sale, by virtue of any subsequent order of the court and continuance of the same proceedings; and this, although upon the granting of a subsequent order, the court may alter the terms of sale.</p> <p>If after the sale of real estate, by order of the orphans’ court, the guardian of one of the heirs take a judgment from the administrator who made the sale, for the share of his ward, and give a stay of execution for one year, the surety of the administrator in the recognizance for the faithful performance of his duties, and payment of the proceeds of sale, is thereby released from liability.</p>

<p>ERROR to the common pleas of Franklin county.</p> <p>Solomon Secrist against John Cook, administrator of John Secrist, deceased. Covenant. Case stated for the opinion of the court, on the following facts, subject to a writ of error by either party.</p> <p>“John Secrist made his will, proved on the 23d of March 1798. The real estate, mentioned in the will, was appraised and divided, and taken at such appraisement and division by Solomon Secrist, plaintiff, and John Secrist, the defendant’s intestate, as per agreement, dated the 28th of March 1809. On the 7th of April 1812, Solomon Secrist sold, by articles of agreement, to John Secrist, defendant’s intestate, a portion of his said purpart. At the date of this latter agreement, the said Solomon Secrist had not paid any thing towards any of the legacies, either to his mother, Mary Secrist, or to his brothers and sisters. Soon after the date of the latter agreement, John Secrist, defendant’s intestate, paid some money to Mary Secrist, widow of the testator, on account of her interest, under the will, but the said John Secrist got the same money back again, and the said John Secrist has not since paid any money to said widow, on account of dower or interest, nor his administrator since his death. The said widow died in April 1823, after making her will. The said widow did not, in her life time, nor her executor, since her death, claim any thing, on account of her interest,, under said will, from John Secrist, in his life time, nor from his administrator, since his death, and no such claim will be made, nor is the estate of John Secrist liable to the estate of said Mary Secrist for such claim. The said John Secrist has paid, and his estate-is liable to pay 3222 dollars 224 cents, for Solomon Secrist, under said agreement of the 7th of April 1812, to the legatees of said will, exclusive of the said widow. This left a balance of 777 dollars 774 cents, of the purchase money, under the agreement of the 7th of April 1812, to be paid by John Secrist, or his estate, to Solomon Secrist.</p> <p>“The question presented to the court is, when, and at what times and in what portions this-balance was payable to Solomon Secrist.</p> <p>“ No advantage is to be taken, on account of no deed having been executed and tendered by Solomon Secrist before suit brought.</p> <p>“John Secrist and his administrator, since his death, paid the 100 pounds per annum, under the will, so far as due. No payments were made to Solomon Secrist by John Secrist, 'who died in December 1829, in his life time. But the administrator of John Secrist, and the guardian of his children, hold notes against Solomon, payable with interest, as follows, which are to be credited on the balance of the purchase money, whenever it became or becomes due.</p> <p>“ On the 29th of March 1835, 91 dollars 28 cents; on the 17th of March 1836, 279 dollars 40 cents; on the 9th of April 1833, 78 dollars 53 cents; on the 9th of April 1833, 15 dollars 61 cents; on the 1st of April 1835, 201 dollars 21 cents.</p> <p>“ The court to decide, whether on this statement of facts, any thing is due from defendant to plaintiff, and how much, and give judgment accordingly. No execution to issue till deed is made in case there should be judgment for plaintiff.”</p> <p>Will: “ I, John Secrist, of Washington township, Franklin county, and state of Pennsylvania, being weak in body but of sound memory and understanding, but considering the uncertainty of this transitory life, do make and publish this my last will and testament, in maimer and form following, to wit: First,-I commend my immortal sole into the hands of God, who gave it, and my body to the earth, to be buried in a Christian maimer, at the discretion of my executors, herein after named, and as to such worldly estate as it hath pleased God to bless me with in this life, I give and devise the same in the following manner, to wit: First, I give and devise all my personal estate unto my beloved wife, Mary, to be held by her until my daughter Catherina shall come of age, and in case of her death, until the surviving youngest of my children, and then she shall only retain and hold the third part of said property, and the remainder thereof is to be equally divided amongst my children, each to have an equal share, and if they cannot agree about the division of the same, all my personal property shall then be sold at vendue, as the executor shall think most proper; and further, I give and devise unto my wife, Mary, all my real estate, to be held by her until my youngest child, as aforesaid, will come of age, to enjoy and occupy the same as she may think proper, and then my real estate is to be sold to two of my sons, viz. to Solomon and John, or if one of them decline, to my son Abraham, or any two of them, which estate is to be appraised by two lawful honest men, chosen by my executors, and whatever sum the said two men will appraise and value the land and premises, to the said two of sons, who will keep the same, shall pay the amount of said valuation unto my other children, retaining to themselves their proper shares, and all my children shall have equal shares, and to be paid in manner following: First, the two of my sons who will keep the land, shall pay 100 pounds per year, unto the rest of my children, that is to say: the first 100 pounds unto my son Abraham, if he doth not become a holder of the land, and the next 100 pounds unto my daughter, Elizabeth, and the next 100 pounds unto my daughter, Mary, and the next 100 pounds to be paid unto my youngest daughter, Catherina, and then so on alternatively; and in rotation, until the whole sum of the valuation be fully paid, and my wife, Alary, shall have her dower on the said my estate, during her natural life; and the said two of my sons who will keep the land, shall pay unto her yearly and every year, during her natural life, the interest arising from the third part of the whole valuation or sale of said land; and in ease my sons will not keep the land at the appraisement, the land shall be sold by my executors to the best advantage they can.</p> <p>“ And, lastly, I nominate, constitute, and appoint my dear wife, Mary, executrix, and Jacob Frederik, Jun., and my son, Abraham, to be the executors of this my last will and testament, hereby revoking all former will or wills heretofore by me made, and declare this so to be my last will and testament. In witness whereof, I have hereunto set my hand and seal, this 21st day of August 1797.”</p> <p>“An appraisement of the real estate of John Secrist, late of Washington township, deceased, as appraised by Christian Royer, Sen., and John M’Cleary.</p> <p>“Plantation and mill, valued at 4810 pounds, for two hundred and thirty-one acres, with the usual allowance of 6 per cent.”</p> <p>“ Alemorandum of a bargaiñ between Solomon Secrist, a son, and one of the heirs of John Secrist, late of Washington township, Franklin county, and state of Pennsylvania, deceased, and John Secrist, one other son and heir of the said John Secrist, deceased, the said Solomon Secrist and John Secrist, agreeable to the last will and testament of the said John Secrist, deceased, was to have and enjoy all the real estate of said John Secrist, deceased, consisting of a plantation or tract of land, in said township, containing two hundred and thirty-one acres and seventy-nine perches, with the usual allowance for roads, with a mill thereon, subject to a yearly and annual payments, to be made to the other heirs of the said John Secrist, deceased, as soon as the youngest heir should arrive at the age of twenty years, agreeable to the said last will; and the said Solomon and John Secrist, being desirous to make a division of said estate between them, have got a division line run between them by Thomas APLean, of Antrim township, which line the parties have agreed to be the settled and permanent line between them, and according to the. division, the said Solomon Secrist is to have sixty-five acres and fifty-five perches; with the usual allowance of 6 per cent, for roads, together with a mill and all the appurtenances that is thereon, and the water right is to continue to be invested in the said Solomon Secrist, the dam is to stand where it now is, and the said Solomon Secrist is to have a road, to and from said dam, and to repair the said dam at his own expense, and is to enjoy all the water as it now runs, except so much as is sufficient to water a small piece of meadow, which piece lies above said mill, and in time of low water, said John Secrist is only to have the privilege of taking the water for said meadow, on Saturday evenings and using it on said meadow till Monday morning, at which time he, the said John Secrist, is to turn the water into the race which carries the same to the mill; and according to the above mentioned division, the said John Secrist is to have one hundred and sixty-six acres and thirty-five perches, together with all the buildings thereon or thereto, belonging or in any wise appertaining, excepting what is already mentioned concerning the dam and its repairs, and for the within mentioned sixty-five acres and fifty-five perches, the lot belonging to the said Solomon Secrist, he is to pay to the other heirs of the said John Secrist, deceased, agreeable to the said will, including his own share, the sum of 2010 pounds; and the said John. Secrist, for the within mentioned one hundred and sixty-six acres and thirty-five perches, the lot belonging to the said John Secrist, he is to pay to the other heirs of the said John Secrist, deceased, agreeable to the said will, including his own share, the sum of 2800 pounds; and the said Solomon Secrist and John Secrist do, by these presents, bind themselves, their heirs, executors, and administrators to make such deed or deeds, or other instruments of writing, as soon as it conveniently can be done, as will be sufficient to confirm each one’s share according to the bargain before mentioned, and for the true performance of all and singular, the bargain and agreement, the parties do bind themselves, their heirs, executors, and administrators to the other their heirs, executors, &c., in the penal sum of 4000 pounds, lawful money of Pennsylvania, to be paid by the party who does not comply with the agreement to the party who does comply with the same. In witness whereof, the said parties have hereunto set then- hands and seals, this 28th day of March 1809.”</p> <p>“ Article of agreement, made and concluded, on the 7th day of April 1812, by and between Solomon Secrist of the one part and John Secrist of the other part, both of Washington township, Franklin county, state of Pennsylvania, witnesseth, that the said. Solomon Secrist has sold to the said John Secrist, and by these presents, doth grant, bargain, and sell his mill and six acres of land, situate in the towhship and county aforesaid, and the line is to run as is hereafter mentioned, that is, beginning at a post that Solomon Secrist drove in the ground, at the division line between John and Solomon Secrist, at the orchard fence, the south side of the new house that Wilson and Reilly raised, and from that part along the south side of the stable that said Wilson and Reilly now enjoy, to a post that Solomon Secrist drove in the ground near the tail race, and from the tail race to Cook’s line, and along Cook’s line as far, and from the first post mentioned, along the division line above the mill, between John and Solomon Secrist, as far as will make six acres of land, and the said Solomon Secrist has given the said John Secrist possession of said mill and land; on the day and year above written, and for which, the said John Seerist doth agree to pay the said Solomon the full sum of 4000 dollars, as is hereafter mentioned; that said John Seerist is to pay Solomon Secrist’s parts of legacies that Solomon is behind, and so on, every year as they become due, until the full sum of 4000 dollars is fully paid, for which the said Solomon Seerist is to sign turto John Seerist all his right and title of said mill and land, for the true performance of which, the parties do hereby bind themselves firmly to each other, in the penal sum of 8000 dollars. In witness whereof, they have hereunto set their hands and seals, this day and year, first above written.”</p> <p>The court below rendered a judgment for the plaintiff, for 1048 dollars 79 cents.</p>

Debt for a legacy. Nicholas Nieman against the executors of Frederick Bentz, deceased. — The testator by his will bequeathed to the plaintiff a legacy of 100 dollars, and to others pecuniary legacies of a certain amount, and the residue of his estate to John Malone and John Myers, whom he named as his executors. A caveat was entered against the probate of the will, and an issue was directed to try its validity.

This was an issue sent to the common pleas by the orphans’ court, to try whether George Hengst had been advanced by his father Michael Hengst in his life time, and to what amount.

Ejectment for nineteen acres of land. William Quigg, Rebecca Quigg, Eliza Quigg, John Wesley and Catherine Quigg, by their guardian, William Quigg, against Samuel Walker. The parties claimed under the same original title. The plaintiff gave evidence, that the land belonged to John Quigg, who died seised thereof, leaving a widow Elizabeth and eight children, the titles of whom were vested in the plaintiffs.

<p>ERROR to the common pleas of Lebanon county.</p> <p>Ejectment by Samuel Reinhard, against John Keenbartz and John Burkholder, who was made a co-defendant.</p>

<p>ERROR to the common pleas of Berks county.</p>

Charles G. Zehmer against Nathan C. Sholfield. Ejectment. Case stated for the opinion of the court.

Jesse Ziegler and Catharine his wife, against David Grim and David K. Grim, guardians of the children of John Siegfried.

<p>After a proceeding in partition, a valuation of the estate by a jury, confirmation of the inquisition, and awarding the estate to one of the heirs, it is not in the power of the orphans’ court, to make any subsequent decree or order by which the amount of the liability of the heir to whom the estate was awarded is either increased or diminished.</p> <p>A release by a guardian of his ward’s interest, secured by a recognizance in the orphans’ court, after a lapse of twenty-four years, is conclusive against a claim of the ward, although he was an infant at the time, and it may be made to appear that there was a mistake to a small amount in the consideration for which the release was given; particularly when such claim would otherwise affect the interests of a bona fide purchaser of land bound by the lien of the recognizance.</p> <p>After a lapse of twenty-four years the presumption of payment of a recognizance is a conclusive bar to a recovery in an action upon it, although the plaintiff during the greater part of the time was a minor, having a guardian.</p> <p>When the testimony of a witness upon his voir dire leaves it doubtful, whether he be interested or not, the party may resort to other sources -of information.</p>

<p>Upon an instrument of writing by which one person agrees to pay to another the interest of a certain sum of money during the lifetime of the payee, an action of debt may be brought and a statement filed, under the act of the 21st of March 1806. And in such case the jury may allow the plaintiff interest upon the annual payments from the time they became due.</p>

<p>A deed, in its form a. conveyance, may be shown to be a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means.</p> <p>Between the grantor and grantee, the admissions of the latter respecting his title, are competent evidence in an ejectment against a third person, to whom the grantee had sold, if made while he was the owner.</p> <p>What was intended to be security for a loan, shall not become a conditional'sale by the accidental form of the transaction; and an agreement to make it such, in default of payment at the day, will be relieved against.</p> <p>The relation of landlord and tenant is not inconsistent with that of mortgagor and mortgagee ; hence, the character of a mortgage will not be changed to that of a conveyance by the acceptance of a lease by the mortgagor from the mortgagee, containing a stipulation for the payment of a rent equivalent to the interest upon the debt secured by the mortgage.</p>

ERROR, to the common pleas of York county. Eve Fink against Frederick and Jacob Hake, administrators of Andrew Hake. This action was brought to' recover the distributive share of the plaintiff, in her father Andrew Hake’s estate. The plaintiff was one of nine children of Andrew Hake deceased, and, during the lifetime of her father, she was the wife of Sebastian Fink.

<p>When an inquiry respecting the proceeds of a sheriff’s sale, brought into court for appropriation, involves matters of fact, a party is entitled to an issue to- try those facts, although his application for it be not made until all the evidence has been heard, and the case argued.</p>

<p>ERROR to Lebanon county.</p> <p>Christiana Myer, administratrix of Daniel Myer, against Christian Kauffman. This was an action of debt on an arbitration bond, the condition of which was as follows:</p> <p>“The condition of this obligation is such that if the above bounden Christian Kauffman, his heirs, executors, and administrators, for his or their part and behalf, shall and do in all things well and truly stand to, obey, perform, fulfil, observe, and keep the award, order, and arbitrament, final end, and determination of Andrew Alexander, Thomas Wenrich, and Abraham Philips, or any two of them, arbitrators indifferently elected, named, and chosen, as well on the part and behalf of the above bounden Christian Kauffman, as of the above named Christiana Myer, to arbitrate, order, judge, and determine of, for, or upon and concerning a certain action or suit, depending in the common pleas of Dauphin comity, respecting a certain replevin, and also of and concerning all and all manner of action and actions, cause and causes of action and suits in law or equity, bills, bonds, specialties, sum and sums of money, quarrels, conditions, debates, differences, dues, controversies, trespasses, damages, and demands whatsoever, at any time or times heretofore, had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by or between the said parties, for or by reason of any other matter, cause or thing whatsoever, from the beginning of the world to the day of the date hereof, so as the said award, arbitrament or order, judgment, final end, and determination of the said arbitrators or any two of them, of and upon the premises or any part thereof, be made and given up in writing under their hands and seals, ready to be delivered to the said parties, on or before the 2d day of October next ensuing the date hereof, or of the above obligation, then this obligation to be void, or else to be and remain in full force and virtue.”</p> <p>The plaintiff, after reading the bond, gave in evidence the following award made in pursuance of it.</p> <p>“September 30th, 1819, referees or arbitrators met and parties present: whereas, divers controversies and debates have been and yet are depending betwen Christiana Myer, administratrix of Daniel Myer, deceased, for the arbitrating and determining whereof, the said parties have submitted themselves and are become bound, each unto the other, by their several obligations, bearing date the 24th day of September 1819, with conditions there under written, for the performance of the award, arbitrament, determination, and judgments/ of us the said Andrew Alexander, Thomas Wenrich, and Abraham Philips, arbitrators, amicably chosen on behalf of the said parties, to award, arbitrate, determine, and judge of and concerning all and all manner of actions, suits, judgments, executions, accounts, quarrels, controversies, trespasses, damages, and demands whatsoever, had, made, moved, commenced or depending between the said Christiana Myer and Christian Kauffman, so as the said award, determination, and judgment of the said Andrew Alexander, Thomas Wenrich, and Abraham Philips, of and concerning the premises, be made and put in writing under our hands and seals or a majority of us, on or before the 2d day of October next ensuing, as by the said obligations and conditions thereof doth appear. Now know ye, that we, the said Andrew Alexander, Thomas Wenrich, and Abraham Philips, arbitrators as aforesaid, taking upon us the charge and burden of the said award and arbitrament; and having heard and understood the sayings and allegations of both the parties concerning the premises, and being minded to settle amity and friendship between — 'this our award, arbitration, and judgment between, the said parties for and concerning the premises, in maimer and form following, that is to say: Do award, arbitrate, and determine by these presents, that the said Christian Kauffman, his heirs, executors, or administrators, do and shall pay and cause to be paid unto the said Christiana Myer, the sum of 111 dollars, and all costs; upon payment thereof, each of them the said Christiana Myer and Christian Kauffman, shall seal and deliver and subscribe, and as his several act and deed deliver unto the other of them, a general release in writing, of all matters, actions, suits, cause and causes of actions, bonds, bills, covenants, controversies, and demands whatsoever, either of them hath, may, might, or in any wise ought to have against, or means of any matter, cause, or thing whatsoever, from the beginning of the world unto the day of the date of these presents, and the said obligations, and for the better attestation and confirmation of this award, the aforesaid arbitrators or the subscribers have hereunto set their hands and seals, the 30th day of September 1819.”</p> <p>This award was signed by two of the arbitrators.</p> <p>The defendant then offered in evidence a judgment of the same plaintiff against the same defendant, to May term 1815, obtained on the 3d of April 1816, for 116 dollars 97 cents, upon which a fieri facias issued to April term 1816, and 87 dollars collected. A testatum fieri facias to August term 1825, to Lebanon county, and the balance of the debt and interest was collected upon it-This evidence was first offered for the purpose of showing payment of the award, and that the plaintiff had not performed the covenant on her part, as contained in' the arbitration bond. The evidence was’objected to by plaintiff and rejected by the court.</p> <p>The defendant then offered the same evidence, accompanied by proof, that the defendant’s property was levied on under the testatum fieri facias, by which he was put to great inconvenience, costs, and expenses, and sustained damage; and this for the purpose of defalcation. The evidence was objected to by the plaintiff and rejected by the court. Verdict and judgment for plaintiff for 235 dollars 4 cents.</p>

This was an action of ejectment by the heirs at law, Patrick Pry against Patrick M’Kennan, to recover a tract of land. It was admitted that Patrick Pry died seised of the land, and that the plaintiffs were his heirs at law.

Action of debt. James Clark against Samuel Caldwell. On the 19th of September 1331, an inquisition found that Samuel Caldwell was an habitual drunkard; it was filed on the 23d of September 1831. On the 15th of November 1831, a traverse was entered to the finding of the inquest, upon which an issue was joined. On the 30th of August 1833, the finding of the inquest was confirmed, and trustees appointed.

<p>IN the supreme court, motion to set aside the sale by the sheriff to Thomas Chambers, Esq., of the real estate of John Carson, Esq., deceased, made upon a testatum levari facias, issued out of the supreme court at Philadelphia, to the sheriff of Dauphin county, at the suit of Frederick Pigou, for the use of Thomas Chambers, administrator, cum testamento annexo of the Hon. Thomas Duncan, deceased, against the administrators of the late John Carson, Esq., deceased.</p> <p>The exceptions to the confirmation of the sale, are noticed in detail, in the opinion of the court.</p>

<p>ERROR to the common pleas of Centre comity.</p> <p>This was an action by Evan Miles and John Foster, administrators of Samuel Miles, deceased, against John Diven, to recover the purchase money of a tract of land, sold by the plaintiffs, as administrators, by an order of the orphans’ court, for the payment of debts to the defendant. The petition to the orphans’ court, described the land as a tract containing two hundred and forty-one acres; it was advertised and sold as such, and confirmed by the court. The land was in fact composed of two adjoining surveys, one of which, ran up upon a mountain, and was greatly inferior in quality to the valley tract. The sale was made as of an entire tract, containing two hundred and forty-one acres, at 18 dollars per acre, and was so returned and confirmed. The defence set up was, that previously to the granting of the order of sale, the administrators had been endeavoring to make a sale of the land, and one of them, John Foster, went to the land with Mr. Diven, the defendant, to show it to him, and while there, he pointed out the line of the land, as excluding the mountain tract, and including the valley land; that they then agreed upon the price, 18 dollars per acre, upon the faith of the representations made by the administrator, the title to be made through the medium of the orphans’ court There had been previously an order to sell the land, which had been returned “ unsold for want of bidders.” After the contract with Mr. Diven, the order was renewed, and the land struck off to him at the price contracted for with the administrator. The land on the mountain was a distinct survey, and contained about forty-three acres. The court below charged the jury, “ That nothing short of gross misrepresentation on the part of the administrator, which would amount to fraud, would sustain the defence made.</p> <p>“Was there then such misrepresentation? Did Foster, by his misrepresentation, induce Mr Diven tQ believe, that the land in the mountain survey was not within his- purchase? Did the administrators make their -return with the knowledge that Diven refused to take the land within that survey? And especially, if that return was made without notice to Diven. The law will stand on the misrepresentation. Is it then clearly proved to your satisfaction, that such misrepresentation did exist; did induce the defendant to ' believe, that the land in the upper survey was not within his purchase, and that the one only sold, and the other only purchased, to the line of the valley survey? If you so find, then such misrepresentation would be fraudulent, and-the defendant would not, under the circumstances of this case, be compelled to take the small tract. But to authorize such a decision, and to set aside the return and sale as to this part, you ought to be well satisfied of the fact, that such misrepresentation existed. There was to be a resurvey; we think in a case so situated, mistake will not be sufficient. It must be misrepresentation, and such misrepresentation as imposed on .the defendant, and induced him to believe, that he was not purchasing the upper tract. We agree that fraudulent misrepresentation, in a case situated like the present, will relieve the defendant; but the jury will be satisfied that it existed, before they set aside their sale.”</p> <p>The charge of the court was assigned for error.</p>

Thomas M’Elrath against George Rahn and Jacob Oldwine. This was an action of trespass against the defendants, who were the sheriff and his deputy, for taking certain goods and merchandise claimed by the plaintiff.

<p>Testator devised to his son and three daughters certain real estate, and directed the cash and outstanding debts (after payment of his debts) to be equally and justly divided amongst his four children. By a codicil reciting the death of one of his said daughters, he gave to her two children all the legacies bequeathed to her, and also gave them, “as a part of said legacies, the amount, or all that shall be recovered on a note for 1400 dollars, due to me by H., their father.” The note stated that sum to be a part of H.’s legacy at the testator’s death, and that it was to draw no interest. The executor’s account showed a residuary balance of 2506 dollars 23 cents. Held, that the legatees in the codicil were not entitled to the amount of said note in addition to their mother’s share; but that the note formed part of what had been given to their mother, and was therefore their portion of the residue of testator’s personal estate, leaving the balance in the executor’s hands for distribution amongst the throe other legatees.</p>

<p>APPEAL from the decree of the orphans’ court of York county, upon the settlement of the estate of Jacob Deardorff, deceased.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court.</p>

Samuel Sterrett against Patrick M’Kennan. This action was brought to recover the purchase money due upon the following article of agreement. “ An article of agreement, made and concluded, this 14th day of November 1814, by and between Samuel Sterrett, of the one part, and Patrick M’Kennan, of the other part; witnesseth, that the said Samuel Sterrett doth agree to sell unto the said M’Kennan ten acres of the east end of his place, joining David Alexander, John M’Cahan, and…

<p>ERROR to the common pleas of Cumberland county.</p> <p>Action of assumpsit. John Yoter against Michael Sanno.</p> <p>This action was brought by the plaintiff upon an alleged agreement between him and the defendant, by which they, being each the owners of a ticket in the Union Canal Lottery, agreed to share with each other whatever might be drawn by either. Yoter’s ticket drew a prize of 1 dollar and 25 cents — and Sanno’s a prize of 5000 dollars. Sanno received the money which his ticket drew, and denied that any such contract or agreement was made between them. And this action was brought to recover one half the proceeds.</p> <p>The plaintiff offered N. Ulerich as a witness, to testify in relation to the ticket of Sanno which drew the prize.</p> <p>The defendant objected to the evidence until the ticket be produced or its loss accounted for.</p> <p>The plaintiff then gave the following evidence to the court.</p> <p>Nicholas Ulerich, sworn. — On a market morning Mr Yoter and Mr Sanno came to my house. Sanno purchased either a half or a quarter ticket in the Union Canal Lottery for his wife, and an eighth for himself, and Yoter said that he had purchased an eighth also, and said, suppose Sanno, you and I put our eighths together, and whatever they draw each shall have half. Sanno said he was agreed, and Yoter then said, well, do you take my ticket and put it in your pocket book with yours, and whatever they draw we will each have half. Sanno said, we need not do that, you can trust me, and I trust you, and whatever they draw we will divide; and they were thus agreed, and they took a drink for luck. This was the spring of 1833. This was the scheme exhibited to Mr Sheaffer after the drawing.</p> <p>George W. Sheaffer, sworn. — Mr. Sanno brought the ticket to me after the drawing, and I took it to Philadelphia for him, and received the money for him at Yates & M’Intyre’s office, in April 1833; it was an eighth, and I received 531 dollars and 25 cents, and paid it to Mr Sanno. Mr Watts called on me to know where I got the money, and I told him; after that, some time last summer, I went to the same place in Philadelphia, and the office was not then kept there, but I heard they had an office in Chesnut street, and one of the partners lived in Camden; the other I think he said was dead.</p> <p>F. Watts, Esq., sworn. — I went to Philadelphia, to the office to which Mr. Sheaffer directed me that he had taken the ticket, and inquired for Yates & M’Intyre, to whom he had delivered it, and from whom he had received the money; the office was not then kept there, but I was referred to, another person, who had been a clerk in the office at the time; I found him in Chesnut street; he said that he had no such paper as the ticket, that either Yates or M’Intyre was dead, and the survivor lived in New York. I inquired if it was likely the survivor would know any thing about the ticket; he informed me, that they were in the habit, in the office, occasionally, of burning papers to prevent so great an incumbrance, and he had no doubt from that circumstance, this ticket had been destroyed. I inquired if any inquiry of the survivor would be likely to'be of use; he said, he presumed he would know nothing about it. The clerk referred to, also stated that he thought that the survivor had only taken documents of some value in their business with him.</p> <p>The court below was of opinion that the loss of the ticket was not sufficiently accounted for, and rejected the evidence.</p>

The real estate of Peter Lobach, deceased, was sold by the sheriff for 3530 dollars, and the proceeds were brought into court for appropriation: they were claimed respectively by Joseph Taylor, the administrator de bonis non, with the will annexed of Andrew Lobach, deceased, by the judgment creditors of the said Peter Lobach, deceased, and by Gilbert Searight, under a voluntary assignment for the benefit of his creditors, made by Peter Lobach, in his lifetime.

<p>If one pay money to another for the use of a third person, or having money belong-to another, agree with that other to pay it to a third, action lies by the person beneinterested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the consideration, the action must be by the promisee.</p>

<p>APPEAL by John Buchanan and Hugh M’Culloch, executors of William Calhoun, deceased, from the decree of the orphans’ court of Lancaster county, upon the settlement of their administration account.</p> <p>The court below (Collins, president) being of opinion that the accountants should be charged with the amount of the judgment against the Gochenaurs, which was lost, thus fully stated the facts, in order to afford them an opportunity to review their opinion in the supreme court.</p> <p>It is contended on the part of the legatees, that the accountants should have charged themselves with the sum of 3103 dollars 33 cents, with the interest thereon, from 22d June 1822, being the amount of a judgment recovered by said accountants as executors of testator, against Adam Gochenaur and Abraham Gochenaur, in the district court for the city and county of Lancaster, originally brought to June term 1822, No. 51, and revived by scire facias to September 1824, No. 28. The amount of which, it is alleged, was received by their accountants, or their attorney, or lost by the negligence of the accountants.</p> <p>The facts relied upon by the legatees to sustain these exceptions are, that on the 22d of June 1822, William Calhoun, deceased, the accountants’ testator, obtained judgment against the aforesaid Adam and Abraham Gochenaur, for 2103 dollars 33 cents, with interest, and that the real estate of each, was sufficient to secure the amount of the judgment. That on the 36th of July 1824, John Buchanan and Hugh M’Culloch, the accountants, were substituted as plaintiffs in said judgment, and issued a scire facias to revive it to September term 1824, No. 8, on which judgment was rendered the 13th of September 1824, for the original judgment and interest. On this judgment a fieri facias issued to December term, No. 8, which was returned by the sheriff, “ the property of Adam Gochenaur levied and condemned.” (See fieri facias to January term 1825.) An alias fieri facias was issued to September term 1826, No. 32, which was returned, “ levied on three tracts of land, &c., one of eighty-eight acres and one of ninety-three acres, in Conestogo township, and one of seventy-eight acres in Martic township, as the property of Abraham Gochenaur, and condemned.” This latter property, it is proved, and also admitted, was abundantly sufficient to secure the payment of the aforesaid judgment. On this judgment no further proceedings appear until the 30th of August 1830. Then the accountants issue their scire facias to September-term 1830, for the purpose of reviving the said judgment against Abraham Gochenaur, who survived Adam Gochenaur, and to this action of scire facias, the defendant entered a plea of payment, with leave; and thus the matter rests.</p> <p>It is also shown, that one John Good had employed Ebenezer Wright, an attorney of respectable standing at the bar of Lancaster county, to bring suit against Adam Gochenaur (one of the defendants in the said judgment) and others, to February term 1821, No. 18; and on the 10th of May 1822, said John Good, obtained an award of arbitrators for 2336 dollars 85 cents. From this award, the defendants appealed, and on the 15th of September 1824, the plaintiff, John Good, obtained a verdict for 2578 dollars 60 cents. The defendant took a writ of error to the supreme court, to May term 1825, No. 38, on which the judgment was reversed on the 17th of June 1826; and on the 4th day of March 1829, a verdict was rendered for the defendants; to this, also, a writ of error was taken, but what disposition was made of it, does not appear. It has been shown, that William Calhoun, in his lifetime, employed the before-named E. Wright, as counsel, to collect his debt against Abraham and Adam Gochenaur, and that the accountants, after they took upon them the administration, continued that employment. Of April term 1825, No. 50, a venditioni exponas issued at the suit of Abraham Shaub’s administrators v. Adam Gochenaur, under which, in November 1825, his real estate was sold by the sheriff for 2709 dollars. A deed was executed by the sheriff to the purchaser, who paid the money to the sheriff on the 17th of April 1826. And by the letter of William White, late sheriff of Lancaster county, which has been permitted to be read in evidence by the counsel, for the purpose of the present argument, but nothing further, it appears, as he says, upon examining his papers, that Gochenaur’s property was sold in November 1825, for 2709 dollars; and that in the month of April following, the money was paid to Mr Wright, the attorney. It is also made to appear that, at the time of the sale of the aforesaid property, the judgments of Good and Calhoun’s executors were the earliest liens upon the real estate of Adam Gochenaur. At this time, and for some years after, it is conceded on all hands, as well as proved, that the judgment of Calhoun’s executors, if unpaid to the accountant’s attorney, was well secured by the property of Abraham Gochenaur, or by the sheriff and his bondsmen, if he received the money and-misapplied it, or by these three several funds, that is to say, by the estate of Adam Gochenaur, by that of Abraham Gochenaur, and by the sheriff’s sureties in case of default. It further appears, that in 1833, Abraham Gochenaur made an assignment of his property to Jacob Eshleman for the benefit of his creditors, that his property was sold by his trustees, his debts paid, and a surplus of three or four thousand dollars returned to said Gochenaur. In March 1830,the lien of the judgment (if still unpaid) against the estate of Abraham Gochenaur, expired; about the same period, the liability of the sheriff’s sureties, for his default in this case ceased, and in April 1829, the counsel of accountants, Mr Wright, died insolvent. And it is not denied by the accountants that the judgment of 2103 dollars 33 cents, with interest obtained by their testator on the 22d of June 1822, from that time charged upon two ample funds or estates to secure its payment, has been lost to the estate.</p> <p>They deny, however, that it has been lost by any defardt of theirs, and rely upon the following facts in addition to those before referred to, for the purpose of showing that they are not liable to account for it. They show, that William Calhoun, their testator, originally retained the said Wright as his counsel, to bring suit and recover this debt of 2103 dollars 33 cents, from Abraham and Adam Gochenaur, and that after the decease of the said testator, the accountants employed the same -counsel to issue a scire facias to revive the judgment and proceed in the collection of the money; and that the said Wright, in 1824, as counsel, was in good- credit and doing a fair business, that he proceeded in the matter as their counsel, and if William White’s letter is believed, received in the month of April 1826, the proceeds of the sale of Adam Gochenaur’s real estate, either as the counsel of John Good, who had recovered a judgment which has been mentioned, or as the counsel of accountants, or of Good and accountants, or as it may appear from all the evidence, as the depository of the sheriff, William White, until a legal application of the money should be made by the proper tribunal. It appears by the deposition of John Good taken by the accountants, that he, Good, supposed the money continued in the hands of the sheriff, as Wright, the attorney, told him it should not be paid over to either, until it was fairly decided who was entitled to it; and the accountants, it appears, knew that Wright whs also the attorney of Good. A. B. Kauffman, whose deposition has been taken by the accountants, states, that in the year 1824, the standing of Mr Wright as an attorney, was pretty fair, and for two years subsequently; that afterwards, he began to fall off, and neglected his business, that he died in 1829, insolvent, that his estate was not sufficient to pay the judgments against him, that deponent is his administrator, and has no knowledge whether his decedent received the money, the proceeds of Gochenaur’s estate or not, and that accountants never requested deponent to search the papers of decedent for -the ascertainment of that fact. By the deposition of James B. Long, on the part of accountants, it appears, that some time after the sale of Gochenaur’s property by the sheriff, about the 1st of June, of some subsequent year, John Buchanan, one of the accountants, in company with James B. Long, went to Mr Wright’s office, and inquired about the money raised by the sale of Gochenaur’s property, and that Wright told him it was attached in the sheriff’s hands by John Good, and that as soon as that was settled, the money could be had, and he would attend to it with pleasure. That in the following winter, Buchanan, one of the accountants, again met Mr Wright at Mr Jenkins’s office, but he did not hear the conversation that passed between them. It appears also, that after the death of Mr Wright, the accountants employed Mr. Washington Hopkins, since deceased, as their counsel. The exceptants have further shown by the depositions of John Good and Henry Brenneman, that before the money was paid to the sheriff for the price of Gochenaur’s property, the accountants met Good and Brenneman, the latter of whom was the principal purchaser; that after the sale made, it was desired by Good that the purchase money should not be paid by the purchaser until it should be ascertained whether Good’s judgment, or that of accountants would receive it; and the purchaser, Brenneman, offered Good to the accountants as security for the money. This proposition they rejected, and insisted on the payment of the money to the sheriff, which was done.</p>

' Michael Sweigart against William Ayres, Esq. Summons in debt not.exceeding 330 dollars. The plaintiff declared as follows: Michael Sweigart complains of William Ayres, Esq., of a plea that he render to the said Michael Sweigart 330 dollars, lawful money of the United States, which he owes to and unjustly detains from him.

Ejectment. Michael Musselman, John Robinson, and John T. Vern or, executors of Benjamin Vern or, deceased, against Christian Fisher and others. Held: from 1811, until some time in 1829, that at the last mentioned time, the testator, Benjamin Vernor had a perfect and distinct knowledge, that his brother John, deceased, had three, and only three daughters, in 1829, viz. Martha, Margaret, and Mary, aforesaid.

<p>ERROR to the common pleas of Cumberland county.</p> <p>This was an action of covenant brought by Hugh. M’Cormick, the plaintiff in error and plaintiff below, against Christian Crall, administrator of Mathias Crall, deceased, to recover a balance of purchase money alleged to be due on certain articles of agreement between the plaintiff and intestate, made on the 6th of December 1809, on the sale of a tract of land.</p> <p>It appeared in evidence that tfie plaintiff was the owner of a tract of land situate partly in Cumberland and partly in York county, containing one hundred and sixty-nine acres, which had formerly belonged to John Shoff, who had encumbered it by a mortgage and bonds to one M’Meens, and died seised, leaving six children. The land was afterwards taken by his two sons, John and Jacob, at appraisements under proceedings in the orphans’ courts of the respective counties. That part of the land in Cumberland (one hundred and seven and three-foiuth acres) was taken by Jacob Shoff, who gave recognizances for paying the widow her interest, and the principal thereof to the heirs at her decease, and also to pay the shares of the heirs. The land in York county was taken by John Shoff, and similar recognizance given. On the 4th of August 1804, Jacob and John Shoff agreed to sell to the plaintiff, clear of all incumbrance, the one hundred and seven and three-fourth acres in Cumberland county, he paying the heirs their shares, paying M’Meens’s bonds, the widow’s interest, and the principal to the heirs at her death; and also the York county land, at the appraisement. On the 2d of April 1806, the plaintiff received a deed for the land in Cumberland, and on the 24th of September 1810, for the land in York.</p> <p>On the 6th of December 1809, the plaintiff covenanted with Mathias Crall, the defendant’s intestate, to sell and convey to him the whole one hundred and sixty-nine acres, subject to the dower of the widow, which had not been properly ascertained. Crall covenanted to pay 1900 pounds, viz: 800 pounds on the 1st of April 1810, “or on the delivery of an indisputable title for the premises, clear of all incumbrance,” out of which the principal of the said dower should be detained by Crall, he paying the interest to her yearly, and securing the payment of the principal to M’Cormick at her death; the residue to be paid in alternate payments of 75 pounds and 100 pounds each, on the 1st of April yearly, to be secured by bonds and judgment; the plaintiff to give the intestate peaceable possession on the 1st of April next, or on paying and securing the purchase money. Crall entered into possession, and so continued till the year 1817, when he died, leaving several children, and the defendant administered. Various payments were made by the intestate to M’Meens, and to the plaintiff, in the years 1810, 1811, 1812 and 1813, amounting to nearly 2000 dollars, and the interest was paid to the widow till her death, in August 1827.</p> <p>In the year 1820, no deed having been executed by the plaintiff, a meeting took place between the parties and their counsel, in Car-lisle, and two deeds for the respective premises were drawn and executed, and, in pursuance of an agreement then made, the defendant paid to the plaintiff the sum of 1225 dollars, making, with the former payments, a sum about equal to the instalments then due, deducting the widow’s dower; and, at the same time, the deeds were deposited in the hands of Mr Parker, the comisel of the defendant, as escrows, not to be delivered, (according to the testimony of Mr Alexander, counsel for the plaintiff,) until the balance of the purchase money should be paid. But, according to the testimony of Mr Parker; the defendant’s counsel, the defendant told the plaintiff he was anxious to have the thing settled; he had the money; was administrator; his brothers and sisters were anxious to have the thing settled; so that the money might not be unproductive; and it was then agreed that the payment above mentioned should be made, the plaintiff making a deed and leaving it with some one till he could make the title complete. That plaintiff said he could not make the title; there were some matters to be settled; (which witness understood arose out of the recognizances;) but he would have it done as soon as he could: with other evidence to the same effect. The receipt given for the money was a special one.</p> <p>Evidence was given by the defendant that after this, in 1821, two suits were brought on the recognizance, and served on him as terre-tenant, to which he appeared, and in one pleaded. The plaintiff gave in evidence three suits, brought in 1828 against the administrator of Jacob Shoff, on the recognizance by John Shoff, Mentzer and Browers and wife, terminated in June 1832 by awards for the defendant. The only parties of the six children of John Shoff who entered satisfaction on the record were John Shoff, the plaintiff M’Cormick and the guardian of Eliza, for what was due on the Cumberland land before the widow’s death, and the plaintiff M’Cormick, Jacob’s administrators and Eliza’s guardian in York county. The defendant contended they were all paid, and produced records of other suits before and after 1820, to show it.</p> <p>It was also proved by a witness on behalf of the defendant, that in June 1831 the defendant called on the plaintiff in Lancaster county and tendered him 1905 dollars, and demanded a title agreeably to the articles. The plaintiff said he was not ready to receive the money, because there were some, circumstances depending that were not settled. The defendant asked him to settle with him or he would leave it to men. The plaintiff declined till he could see his attorney. The defendant asked him to come up and settle as soon as he could. The plaintiff said he would be up after harvest. He repeated several times he wished he had been ready to receive it. In August 1831 the defendant deposited this money in bank, to his own credit, and it there remained. A sum of 760 dollars had been deposited by him in bank in June 1829, and continued until May 1831. A witness for the plaintiff swore, that five or six years before the trial, the plaintiff told the defendant he had the deeds ready, and was desirous to get the money. He had not the deeds with him, but said he would, give a refunding bond, or any other security; was very necessitous for money, &c. Defendant said it did not suit him. Mr Alexander, for plaintiff, also testified, that before the institution of this suit he had got the two deeds from Mr Parker (one of which had been since lost) and tendered them to the defendant, and wished him to pay the balance. The defendant stated he had made an offer of a sum of money to the plaintiff: witness said it was not near enough; he would have to pay a great deal more. This, he supposed, was in 1832 or 1833. This suit was brought to November term 1833.</p> <p>The jury gave a verdict for the plaintiff for 1950 dollars, and the plaintiff alleges that there was a large arrear due him beyond that, for interest.</p> <p>Eleven errors were assigned, three of which are founded on the bills of exception to evidence, and the remainder on the answers of the court to points propounded by the defendant; all of which are set out with distinctness in the opinion of the court.</p>

<p>ERROR to the common pleas of York county.</p> <p>Peter Shultz and Jacob Smyser, executors of John Fahs, deceased, against Samuel Fahs.</p> <p>Case stated as a special verdict.</p> <p>John Fahs, the testator, died September 5th, 1834.</p> <p>Catharine Fahs, widow of the testator, survived him, and entered into an agreement in writing with the plaintiffs, with consent of the devisees, accepting certain benefits and moneys in lieu of the provisions of the will, and in consideration thereof, released her dower in the lands. Such agreement and release, dated the 14th of March 1835.</p> <p>On the 24th of September 1835, Catharine Fahs, the widow, ■was married to Jacob Trostle, and is still living. The said will, probate, and letters testamentary, with the said agreement and release are considered as a part of the case.</p> <p>The object of this suit is to ascertain, whether the defendant is, at this time, liable to pay the sum of 1500 dollars mentioned in the will, to be retained on interest for the use of the widow, and</p> <p>2. Whether the defendant is liable to pay interest on the sum of 1500 dollars mentioned in the will, to be retained on interest for the use of the widow, from the time of her intermarriage with Jacob Trostle, until the principal becomes payable.</p> <p>If the defendant is liable to pay the sum of 1500 dollars, then judgment to be entered for said sum and costs. If the defendant is liable to pay interest only, then judgment to be entered for 90 dollars and costs.</p> <p>If the principal and interest are both to be paid, then judgment to be entered for 1590 dollars add costs.</p> <p>If the defendant is not liable to pay either principal or interest, then judgment for the defendant.</p> <p>Will. — “I, John Fahs, of Buttstown, York county, and state of Pennsylvania, being sick and weak in body, but of sound mind and memory, blessed be God for the same, do make and publish, this, my last will and testament, in manner and form following: That is to say, first I commit my soul into the hands of Almighty God, who gave it, and my body I recommend to the earth, to be interred in a Christian-like and decent manner, at the discretion of my executor hereinafter named, and as touching such, my worldly estate, wherewith it hath pleased God to bless me with in this life, I give, devise, and dispose of the same hr manner and form following. Imprimis. It is my will, and I do order, that all my just debts and funeral charges shall be first paid, and satisfied by my executors hereafter named, as soon as conveniently may be after my decease.</p> <p>“ Item. I give and bequeath to my beloved wife Catharine, the two story log house and lot of ground, with all the buildings thereon, situated in Buttstown, West Manchester township, adjoining widow Peiffer and Mr Connellee’s property, during her.widowhood, to be put in repair out of my estate. I further will and bequeath to my wife Catharine, the interest of 1500 dollars, to be paid to her in semi-annual payments of 45 dollars each; and I furthermore, give and bequeath to my said wife, one stove and pipe, now in use in my house, one wood chest and water tub, and all household furniture, which she may have brought with her at her marriage, and which may be in use in my house at my death. And further,she shallbe entitled to 20 dollars worth of householdfurniture at the appraisement of my personal property, such as she shall choose, all given to her during her widowhood; at the death of my widow, all property willed to her, shall revert to my estate.</p> <p>“ Item.. I give and bequeath to my son John, and his heirs forever, the plantation on which he now lives, containing one hundred and forty-three acres more or less, situated in West Manchester township, York county,- and also, the half of sixteen acres more or less of woodland, situated in York township, same county, adjoining Shanks, Conn, and others, at the valuation of 11,000 dollars, 4000 dollars of which he has already paid to my son Samuel, viz: 3000 dollars in cash, and 1000 dollars included in a bond, which he gave to Samuel for 1500 dollars; 4000 dollars more of the said J 1,000 dollars John shall retain towards his share of my estate, and the remaining 3000 dollars he shall pay to my executors, in six annual payments of 500 dollars each, without interest.</p> <p>“ Item. I give and bequeath to my son Daniel, and to his heirs forever, the plantation known by the name of Rentzel place, situated in Paradise township, York county, to be valued at 4000 dollars, towards his share of my estate.</p> <p>“ Item. I give and bequeath to my daughter Elizabeth, and her heirs forever, the plantation containing one hundred and fifty-four acres more or less, in Paradise township, upon which her husband Daniel Dinkle now lives, as her part of my estate; the barn on said property shall have a new roof, pine shingles, the expense to be paid out of my estate. The said Daniel Dinkle shall continue to farm the plantation, as long as he keeps it in good repair, and maintains his family out of the same, and treats them well, of all which my executors shall judge, if not my executors shall rent the plantation on terms most advantageous, the proceeds of which shall be applied to the support of my daughter and her children, until her two eldest sons are of age, when they shall conduct the farm, and the proceeds shall be applied to the support of my daughter Elizabeth and her family. No more wood shall be cut than is necessary for the repairs of the buildings, mending and making fences, and firewood for the' family on the farm. Should my daughter die before her husband, the said Daniel Dinkle, he being in possession of the farm at her death, and he continue to provide well for the children he has had by my daughter, or shall have, he shall continue to farm the same until his youngest son is of age, and then, if he have no other way to live, his children shall maintain him upon the farm in a suitable and proper manner; he shall eat at their table, have good common clothing, and a small room, with sufficient firewood in the house; I further give to my daughter Elizabeth, my corner cupboard with its usual contents, except such as has been heretofore given to my wife, and any one room carpet she may select. Nothing in my will shall be construed to give Daniel Dinkle any estate, that can in any way be transferred to him or his creditors; in the event of any such transfer or attempted transfer all the privileges herein given said Daniel, shall cease and be forfeited; and the whole devise enure to the exclusive and separate benefit of my daughter and her children.</p> <p>“ Item. I give and bequeath to my son Samuel, the rise of my plantation, consisting of sixty acres more' or less, situated in West Manchester township, to have and to hold during his life; he paying to the widow the interest of 1500 dollars above mentioned out of he said sixty acres; also I give and bequeath the use of my two houses and lots in Buttstown, adjoining each other, also theonehalf of my woodland in York township, aforementioned, tom son Samuel, to have and to hold the same during his life; shouldmy son Samuel marry and have heirs, then the above sixty acre of and, houses, lots, and woodland mentioned, shall belong to such heirs absolutely and forever, all abovementioned sixty acres of land, houses, lots, and woodland, shall constitute one devise, and to be together subject to the payment of the 1500 dollars abovementioned, and the interest thereof, annually to the widow. The whole to be valued at 7000 dollars, 4000 whereof, the said Samuel shall retain towards his share of my estate, 1500 dollars thereof he shall pay to my executors in three annual payments of 500 dollars each, and the remainder 1500 shall abide the death of the widow as aforesaid, and be a charge on the land. In this devise, my will and meaning is, and I so direct, that if my executors shall at any time think, that Samuel does not manage and conduct the property advantageously, they shall lease, or rent the same to the best advantage, and after paying the widow her interest, pay, or apply the proceeds to the support and maintenance of Samuel. Should my son Samuel die without issue, then the whole to revert to my other children in equal proportions and parts, the portions to go to my sons absolutely, and the share or portion coming to my daughter Elizabeth, shall be put out at interest by my executors, which interest my daughter shall separately receive during her life, and at her death, the whole to be paid to her children, their guardian or guardians, who shall give security upon the receipt of the funds. Finally, that all the residue of my property shall be disposed of by my executors, and the proceeds, together with the money received from John and Samuel, after’ paying my debts, funeral expenses, &c., shall be equally divided between my sons John, Daniel, and Samuel in equal parts, the part or share coming to Samuel to be put out at interest during his life, the interest to be applied to his support and maintenance, and if he should have children, then at his death, the whole to be paid to them if of age, and to the guardians of such as may be under age; but if he should die without children, then his share to be divided and disposed of, as I have heretofore disposed of his real estate; at the death of my widow, the property in her use, shall be disposed qf and collected by my executors, including the 1500 dollars charged on Samuel’s devise, and be equally divided amongst my four children, share and share alike. Lastly, I do hereby nominate, and appoint my friends, Peter Shultz and Jacob Smyser, of West Manchester township, the executors of this, my will and testament, and I do hereby revoke, disannul and make void all former wills by me heretofore made, ratifying, allowing this, and no other, to be my last will and testament. In witness whereof, I, the said John Fahs, the testator, have hereunto set my hand and seal, this 3d of September 1834.”</p> <p>Catharine Fahs, widow, to the heirs of John Fahs. “ Know all men by these presents, that I, Catharine Fahs, widow of John Fahs, late of Buttstown, deceased, in consideration of one dollar, and the several benefits and provisions granted to me by agreement, made this day, by the executors and heirs of said deceased, do hereby agree to accept of said benefits, provisions and privileges, so provided and granted, in lieu of the provisions and benefits given by said deceased’s will, and hr full satisfaction thereof, and I do farther release unto John Fahs, Daniel Fahs and Samuel Fahs, their heirs and assigns, all right, title, claim of dower, in any part of the real estate of said deceased, and also to Elizabeth Dinlde and Daniel Dinkle, and their heirs, all right and claim of dower to the lands devised to them, and I further relinquish all claim of dower in any part or portion of the said deceased’s estate. In witness whereof, I hereto set my hand (hand) and seal, this 14th of March, 1835.”</p> <p>Catharine Fahs and the heirs and executors of John Fahs, deceased. Articles of agreement made.this day, between the executors of .John Fahs, late of West Manchester township, York county, deceased, with the general consent of the children and devisees, as follows:</p> <p>“ The widow not being fully satisfied with the provisions of the will of the deceased, the following agreement for compromising all disputes, and making an amicable adjustment of all difficulties, has been agreed on, that is to say, the executors, Peter Shultz and Jacob Smyser, agree to pay to Catharine, the widow of the deceased, 100 dollars in cash, on the 1st day of April next, and 100 dollars more in one year thereafter, without interest. They further agree to pay to her, the interest of 1500 dollars, half yearly during her widowhood, out of said estate, they further agree to give and deliver unto the said widow, all the following furniture to be hers, absolutely at her own disposal and entire control, without being affected by the will, that is to say, the stove and pipe now in use in deceased’s house, one wood chest, one water tub, and all household furniture which she brought to the said deceased at her marriage, and in use at his death,-and also 20 dollars worth of household furniture at the appraisement taken by her; it is further agreed, that the said widow shall hold and enjoy during her widowhood the two story log house and lot of ground in Butts-town, adjoining widow Peiffer and others, to be put in repair out of the estate. And it is hereby covenanted and agreed, as well by the said executors, as by the several devisees of the real estate of. said deceased, jointly and' severally to secure and guarantee to the .said widow, all and singular, the benefits, provisions, articles and rights before specified and mentioned in manner, and during the terms as described, and in consideration thereof,, the said widow agrees to accept thereof, and to release unto the several devisees, John, Daniel, and Samuel Fahs, and Elizabeth Dinkle, their heirs and assigns, all right or claim of dower, in any part of the lands or real estate of the deceased.</p> <p>In witness whereof, the said parties, executors and devisees, have hereunto set their hands' and seals, this 14th day of March 1835. The said widow having released by separate deed. Peter Shultz, [l. s.] Jacob Smyser, [i. s.] John Fahs [l. s.] Daniel Fahs, [l. s.] Samuel Fahs, [l. s..]”</p> <p>The court below rendered a judgment for the defendant.</p>

Debt on promissory note. N. R. Smith, to the use of Dr Calhoun, against Charles L. Berghaus. This cause was tried upon the plea of non assumpsit infra sex annos. In order to avoid the effect of the lapse of time, the plaintiff gave in evidence by a witness, as follows: “About the 1st of April 1835, Dr Calhoun wrote me, that the defendant owed a claim for lectures, and asked me to call on him.

Feigned Issue. James Laurie’s ‘E^oe-otoi-» Kyner and Philip Kyner, Executors of Conrad Kyner. This was a question of substitution which arose upon the following facts: In 1813 Laurie’s executors obtained a judgment against Conrad Kyner for the sum of 833 dollars, which was a lien on a tract of land, the interest of which was payable annually to Ann Laurie, dining her life, and the principal at her decease.

David Hartzell, for use of James Bredin, obtained a judgment before A. Ramsay, Esq., against Adam Houk, on the 26th of June 1830, for 12 dollars 31 cents. On the 12th of March 1831, execution issued thereon to John Arbingast, constable, which execution he permitted to die in his hands.

MANDAMUS. At January term 1837, petitions were presented to the court of -quarter sessions and grand jury of the county of York, representing, that the court house having been erected on the public square at an early period, was found too small for the public accommodation, and in many respects inconvenient; also, that the building for keeping the public records and offices were too small, were inconvenient and insecure; and recommending that the court house, with the public…

Solomon Keefer against Benjamin Kepner. This was an action of debt upon a single bill, dated the 28th of February 1832, for 250 dollars, payable in three months. After the plaintiff had given the note in evidence, the defendant called John Kozier, Sen., who said, “ the note was signed on Sunday, but it was dated the day before. I signed it as a witness This was all the evidence given in the cause, as appeared to this court.

This was an appeal, by the heirs, from the decree of the orphans’ court upon the settlement of the account of James Morrison, administrator of John Armstrong, deceased. The facts are sufficiently stated in the opinion of the court.

Action on the case for a legacy. Thomas Cook and Sarah his wife, for the use of Alexander M’Elroy,against James Montgomery, Esq., and Elizabeth his wife, David Brandt alienee of David Greer and Rachael his wife, with notice to Joseph M’Kee, and Moses Scroggs, executors of Alexander Scroggs, deceased.

<p>APPEAL from the decree of the orphans’ court of Lancaster county, by Joseph Hostetter.</p> <p>The heirs at law of Abraham Hostetter, deceased, represented by petition to the orphans’ court, that letters of administration cum testamento annexo of the said deceased had been granted to Joseph Hostetter, who settled an account of his administration, and in the spring of 1834 removed to Ohio, where he still resided, and praying the court to vacate the said letters; and on the same day, the 24th of November 1836, the court made a decree vacating the letters, and ordering new letters to issue to David Zook. From this decree Joseph Hostetter appealed.</p>

This was an action of trespass by David R. Street against Charles Avery, for taking, carrying away and selling his property. The plaintiff having proved his cause of action as laid in his declaration, the defendant justified the taking, and gave in evidence, that he was the sheriff of the county, and had in his hands an execution at the suit of Ebenezer Sprout v. John Street, for 5 dollars debt and 91 dollars costs.

APPEAL by the executors of Benjamin Verner, from the decree of the orphans’ court of Lancaster county, upon the settlement of their administration account.

Mary Watson against David and John Watson, executors of John Watson deceased. - This was an- action for a legacy brought for the purpose of determining the character of charges contained in the book of the testator against his children, and how they were to be estimated in the final settlement of the estate. The case is so minutely stated in the opinion of the court, as not to require repetition.

WRIT of error to a judgment entered upon an award of arbitrators. Anthony Wilhelm against Nathan Mitchell. On the 13th of January 1836, defendant entered a rule of reference. The docket then exhibited this entry.

<p>ERROR to the common pleas of Northumberland county.</p> <p>This was an action of trespass for mesne profits, brought by Jonas and Elizabeth Heckart against Philip and Joseph Zerbe.</p> <p>The plaintiff gave in evidence the record of an action of ejectment for the land between the same parties, in which the jury rendered a “ verdict for plaintiffs, after paying defendants 400 dollars, defendant not to demand 59 dollars 72 cents, that he has a credit for in his last account, payable in six months,” upon which judgment was rendered. It appeared the 400 dollars were paid, and the defendant took out execution on the payment and possessed himself of the land.</p> <p>The plaintiff then offered to prove the annual value of the land, and to prove that the land was the estate in fee of the plaintiffs, and that the defendants unlawfully took possession of the same and kept the plaintiffs out.</p> <p>The defendant objected to the evidence, on the ground, that the verdict and judgment in ejectment, were conclusive against the plaintiffs’ right to recover. And the court (Lewis, president) being of that opinion, rejected the evidence and sealed a bill of exceptions.</p>

Benjamin Harvey against Hackley and Knapp. Appeal from the judgment of a justice of the peace by the defendant. The declaration filed, was for money had and received; defendants pleaded non asstimpserunf, payment with leave, &c., and set-off; to which they subsequently added the plea of “tender,” by leave of the court. Issues joined on all the pleas.

<p>ERROR to the common pleas of Lycoming county.</p> <p>This was an action of debt upon a note, dated the 24th of May 1832, for the payment of 833 dollars 44 cents, one year after date, by Burrows and Bryson & Co., against George S. Armstrong and John Rankin.</p> <p>During the progress of the trial, the plaintiffs offered in evidence, the deposition of Tunison Coryell. The defendants objected to it, on the ground, among others, that the witness had not been sworn by the justice until after the deposition had been reduced to writing. It appeared the parties were present before the justice, and cross-examined the witness. The court overruled the objection, and sealed a bill of exceptions.</p> <p>The only matter in dispute on the trial, was as to the date of a receipt of the plaintiff. The defendants gave the receipt in evidence, which they contended, was dated the 24th of June 1834. The plaintiff contended the date was the 24th of January 1834, and the money was paid on another, and different note. The difficulty of determining the date, was occasioned by the fact of its being illegible.</p> <p>In order to show that the defendant was in funds, on the 24th of January 1833, when the plaintiff alleges the receipt is'dated, they offered a receipt of the defendant’s of that date, to the superintend-ant of the canal, for the sum of 515 dollars.</p> <p>The defendants objected to the evidence, but the court overruled the objection, and sealed a bill of exceptions.</p> <p>The defendants offered in evidence, their books, kept in the hand-writing of Armstrong, who wrote the receipt, for the purpose of showing the general character of the band-writing, particularly having reference to the words, January and June.</p> <p>The plaintiff objected to the evidence, and the court rejected it, and sealed a bill of exceptions.</p> <p>The court charged the jury, that it was the province of the court to construe writings given in evidence, and that it was their opinion that the receipt was dated the 24th of January 1833. But if the jury believed that it was so dated by mistake or otherwise, and that the money was, in fact, paid in June 1833, they should find their verdict accordingly. Verdict for plaintiff.</p> <p>The errors assigned, were to the opinion of the court, in the several bills of exception and their charge to the jury.</p>

<p>In an action of ejectment involving the validity of a treasurer’s sale for taxes, it appeared from the commissioners’ unseated land book, that the taxes for which the land had been sold, were marked “ paid:” it was held to be competent for the purchaser to prove, that such entry was made, after the sale to him, and that the payment was out of the purchase money.</p> <p>Residence without cultivation or cultivation without residence, or both, constitutes seated land ; and as such, it is exempt from the operation of the law which regulates the sale of unseated land for the payment of taxes.</p> <p>An accidental or temporary suspension of the actual occupation of land, does not place it in such a condition as would authorize a sale of it for taxes as unseated.</p> <p>Whether a tract of land be seated or unseated, can never depend upon the amount of the product of the land, which might be distrained for the payment of the tax; if it be cultivated at all, it subjects the person of the cultivator to liability for the tax, and whenever this is the case, there is no such specific charge upon the land as would subject it to sale as unseated. It is not a valid objection to a treasurer’s deed for unseated land sold for taxes, that it was acknowledged after the treasurer went out of office.</p>

<p>If a plaintiff do not avail himself of a legal position, but joins issues and puts his cause to a jury upon matters of fact, he cannot reverse a judgment upon the finding of • the jury, because that legal position might have' been made available in his favour.</p>

James Brewster against Joseph H. Ellis. Appeal from the judgmerit of a justice. The plaintiff’s demand was for four dollars before the justice, and the judgment was in his favour for that sum; the defendant appealed.

<p>WRIT of error to the court of common pleas of Columbia county.</p> <p>James West, a citizen of the state of Maryland, and resident of the city of Baltimore, being indebted in divers sums of money to different persons, and claiming to be the owner of considerable property, of which the land in question was .a part, by his deed of conveyance, bearing date the 21st of November 1805, assigned and conveyed the same to Humphry Pierce and Alexander M’Donald, of the city of Baltimore, for the purpose of selling it and paying his debts with the moneys arising therefrom. The defendant being in possession of the land at the commencement of this suit, and sometime previous thereto, and claiming to hold it adversely to the title transferred by West to Pierce and M’Donald, they brought this action of ejectment against him in the common pleas of Columbia county, where the land is situate, in order to recover the possession thereof. Pending the action, they both died, first Pierce and then M’Donald. After which, upon application of the creditors of West, to the county court of Baltimore, that court appointed Nathaniel Williams of the city of Baltimore, a trustee in the place of Pierce and M’Donald, declaring the title to the trust property remaining undisposed of, to be vested in him. This being done, the deaths of Humphry Peirce and M’Donald were afterwards suggested on the record of this action, and Nathaniel Williams, upon his allegation, that he was the next in interest, was substituted in the place of Pierce and M’Donald, agreeably to the act of assembly, which provides, that no writ of ejectment shall abate, by reason of the death of the plaintiff or defendant.</p> <p>On the trial of the cause, the plaintiff, after showing that by a patent from the commonwealth of Pennsylvania, and divers subsequent deeds of conveyance, the legal title to the land had become vested in James West, who transferred the same, as was also shown, in the manner already mentioned to Pierce and M’Donald, then offered to read in evidence to the jury the exemplification of a record of the proceedings had in the Baltimore county court of the state of Maryland, authenticated in due form, showing the deaths of Humphry Pierce and Alexander M’Donald, the plaintiffs, and the appointment of Nathaniel Williams, as trustee in their place, who is thereby declared to be fully invested with the legal title to all the trust property remaining undisposed of, and mentioned in the deed aforesaid, from West, to Pierce and M’Donald, which included the land in dispute. The defendant’s counsel, however, objected to this exemplification’s being read in evidence, and the court below (Lewis, president) overruled the evidence, to which the plaintiff’s counsel took a bill of exception. And this is the only matter assigned for error.</p>

<p>ERROR to the common pleas of Union county.</p> <p>This was an action of ejectment for four hundred and twenty-four acres of land, the original title to which, had been in Christian Yantzer, as whose property it was sold in 1816, by the treasurer of Northumberland county, of which Union had been a part, as unseated land for taxes due and unpaid, for the years from. 1805 to 1813 inclusive; and it was then purchased by Elisha Geiger; and this action was brought by his heirs-at-law, against John Williams and Henry Kister, who were the then owners of the original title, which they had purchased in 1809. The opinion of the court below to the jury, in answer to the points of the plaintiffs’ counsel, embodies all the material facts of the case, and exhibits the questions of law which were argued and determined in this court.</p> <p>Points.</p> <p>1st. Plaintiffs’ counsel requested the court to charge the jury, that if the jury believe there were taxes assessed and due upon the land in question, for the years 1805, 1806, 1807, and 1808, the treasurer of Northumberland county had a right to sell, and his deed vested a good title in the plaintiffs.</p> <p>2d. That the receipt upon the deed for the surplus bond is prima facie evidence that it was given to the treasurer, and the evidence of the clerk of the prothonotary, that he could not find it in the office, does not destroy its effect.</p> <p>3d. That the possession of Kister, one of the defendants, was in accordance with, and not adverse to the title of the plaintiff until 1816; and that the statute of limitation did not begin to run against the plaintiff until that period, when their right of entry accrued; and that plaintiffs are not barred by the statute of limitations.</p> <p>4th. That if the jury believe a partition of the land in question was made between the defendants, in 1810, and that each after that period held his part as divided in severalty, the possession of Kister does not enure to the benefit of Williams, and will not bar the plaintiffs from recovering that part of the land which is in possession of Williams’s heirs.</p> <p>Opinion of the court below, to the jury.</p> <p>The plaintiffs have shown a warrant and survey to Christian Yantzer, an assessment of taxes on the land in controversy, as unseated, for the years 1805 to 1813 inclusive, a sale of the land as unseated, and a deed in pursuance of the act of 1815, regulating the sale of unseated land for taxes, from the treasurer of Northumberland county, dated the 25th of July 1816, to Elisha Geiger, under whom,-it is admitted the plaintiffs are entitled as heirs. This evidence standing unrebutted constitutes a valid title, on which the plaintiffs are entitled to recover, unless you are satisfied of the facts to be noticed hereafter, as defeating the plaintiffs’ title to the moiety held in severalty, by Henry Kister. With this qualification the first point proposed by the plaintiffs’ counsel is answered in the affirmative, as as are also all the other points, if the evidence satisfies your minds of the facts assumed or referred to in their propositions. There is nothing, however, absolutely conclusive in the plaintiffs’ evidence of the delivery of the bond for the surplus money bid upon the sale. Although the evidence, that such bond is not to be found in the prothonotary’s office, is not, of itself, sufficient to rebut the treasurer’s receipt; still, if from this and the whole evidence in the case, you are fully satisfied, that in point of fact no such bond was ever given, the plaintiffs are not entitled to recover.</p> <p>As to that part of the land held by the heirs of John Williams, it is the opinion of the court, that the payment of tax.es from 1810 to the present time, and constantly using the tract as and for wood land, he residing upon another tract, do not change the character of the land to seated, nor do those facts form any bar to the plaintiffs’ recovery.</p> <p>But with respect to that part of the land claimed and occupied by Henry Kister, evidence has been given to show that John and Henry Kister purchased the whole tract from Andrew Albright, on the 6th of May 1809, that they entered into possession of the whole, immediately, or within a few days after the purchase; that they divided the land with Williams, the next year, designating the bounds of their claim by their title and lines upon the ground; that the Kisters obtained, in the partition, that part of the land upon which the3r had made their improvements and were residing; that they cleared land, planted an orchard, built a house, stable, a saw mill, and an oil mill; that John sold his interest to Henry; that Henry has continued in actual possession, either by himself or his tenant, residing upon the land from 1809 till the present time, paying the taxes on the land, as seated, during the whole period of time, without any claim having been made founded upon the nonpayment of the taxes, upon which the sale was made, until the present action was brought, in February 1831. If the jury are satisfied, from the evidence, that these are the facts, the plaintiffs cannot recover that part of the land claimed and occupied by Henry Kister in severalty.</p> <p>The court fully recognize the principle, that taxes are a charge upon unseated lands, and that the land may be sold for taxes thus assessed while it was unseated, notwithstanding it changes its character and becomes seated before the sale. But under the circumstances of the present case, the sale was not made for six or seven years after the land had become seated and taxes paid and received on it as such, without any notice taken of the taxes upon which the present action is founded; when the land had been set off into another county more-than three years, where the defendant, Kister, has been permitted to progress with his improvements without claim or molestation, and pay his taxes on the land, as seated, for more than twenty-one years; if the jury are satisfied of the facts of possession and payment of taxes, already mentioned; the defendant, Kister, is entitled to a verdict for the moiety in his possession.</p> <p>It is not necessary to trouble the jury with the reasons for this opinion. It may be mentioned, however, as one among the number, that the plaintiffs do not pretend to have shown, and indeed have not shown a compliance with the provisions of the act of 1804, relative to the sale of unseated land for taxes, but they rely altogether on the curative provisions of the act of 1815. It is difficult to believe that the legislature intended that act to operate retrospectively, so far as to embrace a case like the present, and to authorize a sale of land which had been seated nearly seven years before the passage of the law, and on which a family was residing, surrounded by extensive and valuable improvements.</p> <p>Errors assigned.</p> <p>1. The court erred in stating that there was nothing absolutely conclusive in the plaintiffs’ evidence of the delivery of the bond, for the surplus money bid upon the sale.</p> <p>2. The court erred in stating to the jury, that Henry Kister had continued in actual possession, either by himself, or his tenant residing on the land, from 1809 until the present time, without any claim having been made, founded upon the non-payment of taxes, upon which the sale was made, until the present action was brought in 1831.</p> <p>3. The court erred in instructing the jury, viz: — “ but under the circumstances of thfeqplesent case, where the sale was not made, until six or seven years after this land had become seated, and taxes paid and received on it as such, without any notice taken of the taxes upon which the present claim is founded, where the land had been set off into another county for more than three years, where the defendant Kister had been permitted, without claim or molestation, to progress with his improvements and pay his taxes on the land as seated, for more than twenty-one years. If the jury are satisfied of the fact of possession and payment of taxes, already mentioned, the defendant Kister is entitled to a verdict for the moiety in his possession.</p> <p>4. The court erred in their answers to the 1st, 2d, 3d and 4th points of the plaintiffs’ counsel, and did not answer them distinctly.</p>

Ejectment for the undivided half of two hundred and fifty acres of land, by Hannah M’Cord, Benjamin Rees, Vaniah Rees, Mary Rees, Daniel Rees, and David Rees against John M’Reynolds. It appeared in evidence, that James Dill and Matthew Dill were the owners of this land, and that Matthew’s title afterwards became vested in James.

George W. French against William Seely. Ejectment for four hundred acres of land. The plaintiff gave in evidence an application of George W. French, dated the 1st of November 1833, with the necessary affidavit of an improvement having been made and grain raised in 1807. On the 23d of July 1835 warrant to George W. French; survey the 14th of September 1835, and patent the 30th of October 1835.

<p>ERROR to the common pleas of Northumberland county.</p>

<p>A sale of land upon an erroneous judgment, which is afterwards reversed, vests a good title, clear of incumbrances,' in the purchaser.</p>

Hartman Kuhn and Charles Kuhn against Thomas Richardson, . Ejectment for a tract of land.

WE.IT of error to the common pleas of Luzerne county. George M’Henry and Lucinda, his wife, against Nicholas Seibert. This was an action of replevin for a cow.

<p>ERROR to the common pleas of Susquehanna county.</p> <p>This action was brought by Josiah Danforth against Ithamar Mott and Sylvanus Mott, in case for a conspiracy and fraud. The declaration alleges in the first count, that George Tarbox was indebted to the plaintiff in the sum of 998 dollars and interest, on a note dated the 8th of May 1833, payable in six months, and the defendants intending to deceive and defraud the plaintiff of his debt, excited, moved, advised, and procured Tarbox to depart and leave the country, and go to places unknown to the plaintiff, without paying said debt, whereby it was totally lost. The second count, after averring the same indebtedness, charges, that Tarbox was possessed of goods and chattels sufficient to pay the same, yet the defendants contriving and intending to injure and aggrieve the plaintiff, and prevent the payment of his debt and to defraud him thereof, conspired rvith Tarbox to secrete and eloigne to places unknown to the plaintiff, the said goods and chattels, and did so secrete and eloigne them, and' converted them to their own use, whereby the plaintiff lost his debt. The third count, after averring the indebtedness and the possession by Tarbox of goods and chattels, rights and credits, &c., alleges, that the defendants contriving, and fraudulently intending to deceive and defraud the plaintiff, by covin and conspiracy with Tarbox, to defeat and prevent the plaintiff from recovering his debt, secreted and eloigned to places unknown to the plaintiff, the said goods and chattels, rights and credits of Tarbox, and aided, and assisted, advised and procured him to depart and leave the country, and go to places unknown, by reason whereof the debt was totally lost.</p> <p>Much evidence was given on the trial, from which it appeared that Tarbox had been travelling about the county of Susquehanna and the neighbourhood, for two or three years as a pedlar, being in possession of a wagon and horses, and valuable dry goods, jewellery, and other articles of merchandise: and that in May 1833, he purchased of the plaintiff in Connecticut, near 1000 dollars worth of articles, at a credit of six months, for which he gave his promissory note. He also purchased of two other persons in that state to a considerable amount. The plaintiff alleged, and gave evidence to prove, that the defendants were very intimate with Tarbox, and well acquainted with the state of his affairs and indebtedness in Connecticut, as well as for divers small amounts in the neighbourhood; that they colluded with him in various ways, to enable him to defraud his Connecticut creditors, and that for this purpose, they finally in October 1833, about eight days before the plaintiff’s note became due, obtained from him, his wagon and horses, and merchandise, as well as notes and securities for debts due to him, by a sale or pretended sale, and assisted, and accompanied him in absconding from the state, leaving his debts unpaid, taking with them, and otherwise disposing of, his property and effects.</p> <p>Various points were presented to the court by the counsel for the defendants, all of which seemed to be substantially summed up in the concluding charge of the court, which has been the main subject of argument here. That is, as follows:</p> <p>Herrick, president. “ If the jury think, from all the evidence in the cause, that Ithamar and Sylvanus W. Mott, conspired with Tarbox to defraud his creditors, and that in pursuance of such agreement, the defendants took assignments of his property, and aided and assisted him in' getting out of the state, with his property, moving to places unknown, by which means the plaintiff was defrauded and prevented from the recovery of his debt, this action can be maintained And the court think if the plaintiff’s note was not payable for eight days, it would make no difference, if by the means of the conspiracy and fraud, the plaintiff is defrauded and prevented from the recovery of his debt. Nor would it be material, that the defendants did not know that the plaintiff was a creditor, provided the conspiracy was to defraud all Tarbox’s creditors in Connecticut, and the plaintiff was one of them. If the jury should be of opinion that the plaintiff ought to recover, they may find the amount of the plaintiff’s claim if they think proper, provided the goods, notes and money assigned, and taken off by Mott and Tarbox by conspiracy and fraud, amount to such claim, but they can find for no greater sum than the amount so assigned and carried off as aforesaid. The jury found a verdict for the plaintiff for 796 dollars 52 cents.</p>

<p>ERROR to the common pleas of Luzerne county.</p> <p>This was an action of debt upon a recognizance in the orphans’ court. The Commonwealth, in right of David Brooks and Hetty his wife, for the use of William Goodwin against Jeremiah Blanchard and Frederick Wagoner.</p> <p>Jeremiah Blanchard the elder, having died intestate, there was a writ of partition and valuation of his real estate awarded by the orphans’ court. The inquest found that the estate could not be divided among all the heirs, and valued it at 2224 dollars, “ and find the value of a tenth part of the real estate of which the intestate died seised, being the part of the said estate to which each of the children of the said intestate is entitled, to be 222 dollars 40 cents,” &c. This inquisition was confirmed on the 3d of August 1818. Afterwards, on the 11th of August 1S18, Jeremiah Blanchard, the defendant, elected to take the estate at the valuation, and it was decreed to him by the court upon his entering into a recognizance with Frederick Wagoner, or his surety, in the penalty of 4000 dollars, “upon condition that Jeremiah Blanchard shall, within one year from the return and confirmation of the inquisition and valuation of the estate, pay to the several heirs of the deceased their distributive shares of the estate, according to the valuation thereof in the inquisition mentioned, with the interest.” The plaintiff gave in evidence a transfer by David Brooks and Hetty his wife, who was one of the heirs, of their interest secured by the said recognizance, to William Goodwin.</p> <p>The defendants then offered to prove, under the plea of payment, with leave, &e., that upon the 30th of January 1804, Jeremiah Blanchard the elder, the father of the defendant, made, by deed, an advancement to his daughter Hetty Brooks, the plaintiff, consisting of a certain tract of land in Pittston, containing about one hundred and fifty acres, and then worth upwards of 300 dollars: that the said Hetty subsequently and there fter sold and disposed of the said property, and that her grantees have since enjoyed the same to the present time. And they offer to prove further, that at the time William Goodwin obtained the assignment of the right of the said Hetty, under which he brings the present suit, he well knew and understood this fact, and represented to Hetty Brooks, who has resided out of the state of Pennsylvania since the year 1804-5, that the said advancement above referred to, was in full of her share of the real estate of her said father, and that all, that would be coming to her, would be about 11 or 12 dollars, arising from the personal property, and that this was all that was in any way due, from her said father’s estate, to her. That under this representation he paid 10 dollars to the said Hetty Brooks, and at the time agreed, as a further part of the consideration of said transfer, that he never would sue or distress the said Jeremiah under such claim, during his, the said William Goodwin’s lifetime. And the defendants further offer to show the admissions of the said Hetty Brooks, long previous to the execution of said assignment to William Goodwin, that she had received from her father, in his lifetime, an advancement in hand, more than equal to the share that otherwise would have been coming to her from her said father’s estate. And the defendants further offer to show various facts and circumstances, going to prove that the said William Goodwin was guilty of gross fraud in obtaining the assignment given in evidence by him, as obtained from David Brooks and Hetty his wife; and that he never did pay any thing but 10 dollars to the said Brooks for said assignment.</p> <p>All and every part of which the said defendants offer as a whole ■ and in detail. To which plaintiff’s counsel objected. The court sustained the objection, overruled the evidence, and sealed a bill of exceptions.</p> <p>The rejection of the evidence was the error assigned.</p>

<p>ERROR to the common pleas of Luzerne county.</p> <p>Thomas Connelly against Warren Arnold. Two Avrits of scire facias to revive íavo judgments between the same parties were tried together by the same jury.</p> <p>The plaintiff gave in evidence the judgments upon which his writs Avere founded,</p> <p>The defendant then gave in evidence the record of a scire facias. upon a mortgage between the same parties, referred to arbitrators, under the act of 1810, and an aAvard for the plaintiff for 130 dollars 90 cents, from Avhich there Avas no appéal; and then offered to prove by the arbitrators, what was submitted to them and adjudicated upon by them in that suit; for the purpose of shoAving payment of these judgments; to Avhich the plaintiff objected, and the court overruled the objection, and sealed a bill of exceptions.</p> <p>The arbitrators gave evidence in substance, that the plaintiff’s .claim before them Avas upon the mortgage; that the defendant alleged and satisfied them that the judgments, to recover which the present suit is brought, Avere for the same debt as the mortgage; and that in making their aAvard, they estimated and included the amounts in the judgments. They said that the plaintiff’s counsel did not admit that the mortgage and judgments were for the same debt. The aAvard Avas not for a sum greater than the plaintiff’s claim upon the mortgage.</p> <p>The plaintiff then offered to prove, that before the issuing of the scire facias, the defendant, Warren Arnold, was indebted to him on book account, notes, and- moneys paid for him, to the amount of the judgments and the aAvard of arbitrators on the mortgage. .</p> <p>To which evidence, the defendant objected, and the court sustained the objection, and sealed a bill of exceptions at the instance of the plaintiff.</p>

This was an action of ejectment for one hundred acres of land, by Henry Frick against Joseph Rhodes and Abraham Troxall. Andrew Shoub died seised of a tract of land containing two hundred acres; by his will and an agreement among his heirs, the same became vested in his daughter Mrs Rhodes, the wife of Joseph Rhodes, the defendant; she died leaving an only son, Andrew S. Rhodes.

Sharp and Carman against Foster, Bowman and Forsythe. This action was brought upon the insolvent bond of Foster, in which Bowman and Forsythe were sureties. The plaintiffs filed a statement and referred the cause to arbitrators who made a report for the plaintiff for 378 dollars 45 cents. A motion was made in the court below to set aside the award on two grounds.

<p>A payment of taxes upon unseated land, must be applied to the discharge of the tax due upon the tract up.on which the payment was actually made; and the intention and belief of the person paying, that he was discharging the taxes due upon a different tract, cannot be so used as to avoid a treasurer’s sale of the latter for the payment of the taxes.</p>

<p>A defendant having been successful upon the trial of several causes against him at the same term by several plaintiffs, cannot recover from each plaintiff the per diem allowance and mileage of a witness, who was subpmnaed in each case; but be may select either plaintiff, and recover from him. Or, if there be several witnesses, thus subpoenaed, who attended, the defendant may select of the plaintiffs and recover part of the whoje bill of costs from one, and part from another. In such case, a defendant is entitled to recover from each plaintiff the fee for service of a subpoena on the same witnesses in each case, but not mileage, except in one of such cases.</p> <p>If the plaintiff in each of such suits have previously appealed from awards of arbitrators therein, the defendant is entitled to his full daily pay in attending the appeal in each case.</p> <p>Semite, if a witness attend the same court upon subpoenas in several suits between different parties, he is entitled to recover his per diem from each of the parties by whom he was subpoenaed.</p>

This was an action by Benjamin Saxton against William P. Spalding, to recover the amount of a book account. The plaintiff was called to prove his book of original entries. The defendant objected to his being sworn, and gave in evidence the record of his conviction of burglary.

Ejectment by Valentine Beidelman against John Folk, for ten . acres of land covered with water, including part of a dam and water power. For the facts of the case, see the former report in 5 Watts, p. 308.

<p>J. M. devised to his widow, “ the thirds of all my personal estate, goods, and chattels, and the thirds of all my real estate during her widowhood; to my son S., the half of all the remaining goods and chattels, lands and tenements, to have and to hold forever; to my younger son, J., the remaining half of my goods and chattels, lands and tenements, to have and to hold forever, share and share alikeJ. M. made no further disposition of the residue of the estate devised to his wife. Held, to be a devise of the residue to the two sons, who took the whole estate after the death -of their mother.</p> <p>It is not competent to give evidence by the scrivener, as to what the testator meant by devises contained in his will.</p>

<p>A verdict and judgment are conclusive of the rights of the parties thereto, as to every thing embraced within the pleadings; but they are not conclusive of the rights of the parties which accrue subsequently to the institution of the suit, although they grow out of the same subject matter.</p> <p>B agreed to pay a debt due by A, for which C was surety. C paid the debt and sued B on his agreement. Held, that, being a stranger to the consideration, as between A and B, C could not recover on it.</p>

James Murry and another against Satiah Murry. This was a feigned issue, formed on a precept from the register, to determine whether a certain instrument of writing was, or was not, the last will and testament of Jeremiah Murry, Esq., lately deceased. The writing is entirely in the handwriting of Jeremiah Murry, the decedent, and covers eight pages, which are regularly numbered by him, from one to eight, inclusive. It commences thus: “ In the name of God, amen.

<p>The law requires no particular form to constitute a valid submission to a referee? nor is it necessary that it should be in writing. Neither is it necessary that the award should be in writing unless required by the submission. An agreement of the parties to refer, and the award of the referee, whether in writing or not, are equally binding upon them.</p>

<p>ERROR to the district court of Allegheny county.</p> <p>John O’Hem against Robert Watson and William Booth. This was an action of covenant upon the following agreement:</p> <p>“Articles of agreement, made and concluded by and between. John O’Hern, of the borough of Allegheny, of the one part, and Robert Watson and William Booth, stonecutters, of said borough, of the other part; witnesseth, that the said O’Hern doth, on the conditions hereinafter mentioned, let on a lease of six years, commencing on this 5th day of February 1834, unto the said Robert Watson and William Booth, jointly, the privilege of quarrying and hauling away all the stone they may be able to find use for, during the said term of six years, and liberty to quarry the same all over the present face of said quarry, and also to extend the said face as far eastward as they please along the side of Mr Robert Campbell’s premises, with the exception only of the privilege granted to Joseph Walker and partner, by ah article of agreement, dated on the 1st of this month, which calls for the space of eighteen yards, along the face of said quarry and near the middle thereof, together with the other conditions contained in said article, the remainder of the face of said quarry to be considered for the use and under the control of the ■ abovementioned Robert Watson and William Booth, for and during the said term of six years, provided they fulfil the following conditions, viz. they agree to pay unto the said O’Hern, his heirs, &c., a quarry rent of 7 cents for every perch of twenty- and three-fourth cubic feet of common building stone they take out, and 4 cents a foot for every foot of cutting stone they may get during said time, the cutting stone to be running measure, for all stone not broader than eighteen inches, and all the stone which shall exceed eighteen inches wide to be cubic measure. They also agree to deposite their stripping regularly, deep-on the south side of or front of the quarry, and always keep a sufficient distance clear between the face of the rock and the stripping, for a loaded wagon to pass along. They also engage to fulfil any or all of the contracts the said O’Hern may agree for, in such materials and workmanship as the conditions of such contracts call for; provided always, that such contracts are not undertaken at a lower price, than the established undertakers in this vicinity undertake such work for; say, for instance, Mr Pegan or Mr Smiley, &c.; the said Robert and William, do also agree to render unto the said O’Hern, if required by him, orders on the proprietors of the buildings for the amount which may be coming to him for his claim for the quantity of stone in each contract, as may be conveniently ascertained, and in the space of fifteen days after the stone work is finished. It is also signified and conceded to, that, provided the said Robert Watson and William Booth faithfully fulfil the conditions of this article, they shall have a new lease of the said quarry on' as reasonable terms, and in preference of any other new applicants for the said property. The said O’Hern also enjoins on the parties, that no liberties be taken nor injury done to either the pasture or fences of the field in which said quarry is, than strictly what is necessary for taking off the stripping on the same. It is further agreed, that the said Watson and Booth shall be present to give their consent at the closing of any contracts that the said O’Hern shall make. It is further agreed, if Joseph Walker & Co. should at any time give up their bargain in said quarry, that there on conditions, that the said Watson and Booth shall keep four teams constantly at work during nine months every year, that then they shall have the privilege of that part which said Walker’s contract calls for, together with their own.”</p> <p>The plaintiff thus assigned the breach of the covenant by the defendants.</p> <p>By virtue of which articles of lease and agreement before recited and set forth, afterwards, to wit, on the day and year aforesSid, the said defendants went into the possession of, and assumed the control of the said quarry. And the said plaintiff avers that although he hath always, from the time of making the said articles of agreement, hitherto well and truly performed and fulfilled and kept all things therein- mentioned and contained on his part and behalf, to be performed, fulfilled, and kept, according to the tenor and effect, true intent, and meaning thereof. Nevertheless, the said defendants, the covenants and agreements aforesaid, in the said articles of agreement contained as herein before set forth, or. any of them, on their part to he fulfilled, performed, and kept, have not performed, fulfilled, or kept, according to the tenor and effect, true intent, and meaning thereof, the said plaintiff saith that they did not quarry and haul away all the stone they were able to find use for, during that part of said term of six years, from the 5th day of February 1834, which was expired at the time of the impetration of this writ, but altogether neglected to quarry and hairl away and use any stone from same, from the 15th day of May 1834, and previous to the institution of this suit, and neglected to pay any compensation to the said plaintiff, for the stone which they might have quarried, hauled away, and found use for, during said period. And the said plaintiff avers, that the said defendants were able to have found use for, and might have hauled away from said stone quarry a large quantity of stone, to wit: perches, during said period, which they altogether neglected to do, and which they ought to have done, according to the tenor effect, true intent, and meaning of their covenants aforesaid, and for a further breach of said covenants, the said plaintiff further saith, that he, on the day of May in the year IS34, after the execution of said articles of agreement, and before the institution of this suit, agreed' and contracted with M’Kel'vey, for the delivery of as much stone as was necessary for the walling of a certain cellar, and which contract the said defendants, by their covenants with the said plaintiff, were bound to fulfil, and of which they, the said defendants, then and there had notice, and which they altogether refused and neglected to do, and to deliver said stone to the said M’Kelvey, as contracted for by said plaintiff, by reason of which, the said plaintiff saith he is injured and damaged to the value of 500 dollars.</p> <p>It appeared in evidence, that the plaintiff had recovered damages from the defendants, in a former action, on the same agreement.</p> <p>The court below, thus charged the jury:</p> <p>Grier, president. It is a rule of law, well established, that covenants or contracts are to be construed according to their spirit and intent, and that the spirit and intent are to be gathered from the whole context, and a performance which is strictly according to the letter of the covenant, if it violate the spirit’s intent, is as much a breach as if it violated the letter also; and as agreements are often drawn by persons unacquainted with the technical or proper use of legal terms, no precise or formal terms are necessary to constitute a covenant. Thence the inquiry always is, what was the intention of the parties? On this subject many examples might be cited, but one or two will suffice. If I covenant to deliver so many yards, of cloth, and I cut it in pieces and then deliver it, it is a breach. So, if one covenant to leave the trees on the land, and he cuts them' down and leaves them there. So, in the case of Griffith v. Goodland, when a brewer covenanted to deliver the grains from his brewery to plaintiff, for seven years, but put hops in the malt, whereby the grains were spoiled. In an action of covenant, it was objected that it would not lie, because defendant had fulfilled it to the letter by delivering the grains, and that the only remedy for the plaintiff, was an action on the case for fraud; but the court held, that it was the intent that the plaintiff should have the grains for the use of his cattle; of course that he was to have in such a state that his cattle would eat them, that rvhen hops were mixed with grains, cattle would not eat them. Therefore, though the grains were in fact delivered, so as to comply with the letter of the covenant, they were not delivered in such a state as to comply with the spirit of it, and it was consequently broken and the action maintained</p> <p>With these principles in view, let us examine this article of agreement, and endeavour, if possible, to arrive at the true meaning, spirit, and intent of it, and having found this, it will be your duty to say whether the defendants have broken their contract, and what damages they should pay for such breach.</p> <p>The plaintiff is owner of a stone quarry, near Allegheny town, the defendants are stonecutters. The plaintiff “ lets to them, on lease of six years, the privilege of quarrying and hauling away all the stone they may be able to find use for, during the said term of six years, and liberty to quarry the same all over the present face of the quarry, excepting a space of eighteen yards leased to Walker,” which is “ to be considered for the use, and under the control of” defendants, “during the term of six years,” provided, however, that they fulfil the following conditions, viz. “ They agree to pay unto the said O’Hern, his heirs, &c., a quarry rent- of 7 cents a perch,” &c., &c. They agree, also, to fulfil any contracts O’Hern may agree for, in such materials and workmanship as the conditions of such contract may call for, provided the terms are good and they agree to them. They agree, also, to give plaintiff orders on proprietors of buildings for amounts due him for rent. They also agree further, if the reserved part of the quarry, held by Walker, be at any time given up to them, that they will keep four teams constantly employed during nine months in every year.</p> <p>Now it is contended by the defendants’ counsel, that this is the grant of a mere privilege, to be paid for when used, at a certain rate, and that the defendants are not bound to use it; have not covenanted to take out any particular quantity of stone, and that when they see fit to take them they will pay for them.</p> <p>Now this construction may, in a measure, be according to the letter of this contract, but I think no person of common understanding, would say it is according to the spirit and intent of it. I may lease a man my mill for a year, and although I may absurdly call it in my lease “ privilege of using my mill for a year, and grinding all the grain that may come to it,” and may forget to insert in it a covenant that the lessee shall keep it going day and night, but only bind him to give me a share of the tolls, yet I think he could hardly be called an honest man, who, with such a contract, would shut up my mill and put the key in his pocket, and when called on for rent, turn on his heel and say, I covenanted to pay you a share of the tolls; I have taken none; go about your business; when I take any I will pay you your share.</p> <p>But is this a mere privilege? Although called a privilege of quarrying and hauling away all the stone the defendants may be able to find use for, yet it is a lease for six years, defendants are to have the use and control of the quarry for'six years; it is in fact nothing more nor less than a lease of the quarry, uninstructed as to the quantity of stone to be taken from it; the phrase “may be able to find use for,” will include as many as they can dispose of to advantage. The parties evidently contemplate that stone will be supplied to contractors or builders of houses; and as the quarry was nigh to a large and growing city, they seem to take it for granted, that both parties would be anxious to dispose of as many as possible, as it would be to their mutual advantage.</p> <p>Now, if the defendant had shown 'that he got out as many stone as he could dispose of; that he had but a single team and did as much as he could; that he could not get hands to quarry; or any other reasonable excuse for not doing as much as plaintiff might expect or demand, he might well say, I have done all I was able, and I have not contracted to do more; I have not bound myself to keep any certain number of teams going. Or if they had said to plaintiff, we find ourselves unable to go on with this business,.here is your lease, do the best you can; they might justly have called upon you to give nominal, or no damages at all, especially if plaintiff had refused to accept his lease again, knowing they could not go on with the business. But it seems, that when at the arbitration in the former suit, the plaintiff complained they would not give up the lease, the defendants did not offer to give it up except upon conditions which they evidently had no right to' require.</p> <p>It has been objected that a second suit will not lie on this agreement; that as no time is fixed for payment of rent, plaintiff might bring an action every day, either for an account, if not rendered, or for a breach, if the quarry is not used; that, because this would be so unreasonable, therefore, the contract is satisfied by one recovery for a breach of it. But although it would be unreasonable and, oppressive to have a great number of suits, it does not follow, that, therefore, the plaintiff shall have but one; or that, because the parties have fixed no time for rendering an account or paying rent, therefore, plaintiff should wait till the end of the term. The parties evidently understood that the quarry rent should be paid along as the money for the stones sold was got; that the plaintiff should have an order on the purchasers or proprietors of houses for which they were furnished. While the court will hinder the plaintiff, on proper application made, from oppressively multiplying suits, or would consolidate them and make him pay the costs of all but one; so they will not permit the defendant to trifle with his contract, and escape doing what is just and equitable, by quibbles upon the words of his contract.</p> <p>It is urged, also, that as the defendants had not covenanted to get out any particular quantity of stone, or to keep any set number of teams employed, therefore, as they had fixed no certain rule of damages, the jury can give none, or at least, but nominal damages. But this is not correct, as I have already shown the spirit and intent of this agreement is, that defendants should go on to quarry stone and dispose of them; the plaintiff is not bound to show how many might have been sold, or that defendants bought other stones, during the time for which damages are now claimed, and that plaintiff should recover, just what he would have had, if defendants had taken the same quantity from his quarry. The defendants have wholly refused to quarry stones; have made no attempt to an honest performance of the spirit and intent of their contract; the testimony produced by them on the trial, for the purpose of excusing themselves or throwing blame on the plaintiff, is too palpably absurd to be noticed. The jury are, therefore, to judge of what injury the plaintiff has received, by the non-performance of this contract, and not let the defendants escape altogether, by their palpable evasion, because the contract has established no exact measure of damages.</p> <p>On this subject the court can only say, defendants had not covenanted what quantity shall be got out, or how many teams were to be employed; nor although witnesses have stated that the defendants stated they intended employing their teams, are they bound to that as a measure of liability.</p> <p>The defendants owned one team, they used it for a time, and afterwards sold it, and ceased to go on with their contract altogether. If they had gone on with that, hauling ten or twelve perches a day, perhaps the jury may think they would have been excused if they could have done no better. It is true it may be said, the plaintiff has his stones, and they are worth as much now as ever; but although that is true, as a general proposition, it might lead to a false conclusion, as is most evident. It will be for the jury, therefore, to say what damages the plaintiff has sustained, by the total refusal of these defendants to attempt any sort of compliance with the spirit and meaning of their contract, from the 35th of June 1834, to the 5th of February 1835.</p> <p>To which charge of the court, the defendants’ counsel excepted.</p> <p>Verdict for plaintiff, for 170 dollars, damages.</p>

Andrew Johnston against William Johnston. This was an action of ejectment for one hundred and two acres of land. The original title to the land had been in the plaintiff. This was shown. William Johnston, the father of the plaintiff and defendant, died in 1812, seised of a tract of land, leaving a widow, Margaret, and issue, Andrew, William, James, Joseph and Roily Johnston. Joseph and James, took the estate of their father by a decree of the orphans’ court, at the valuation.

<p>If a verdict and judgment be obtained by a plaintiff in an action in which the pleadings might embrace all his claims against the defendant, it will be presumed, in the absence of proof, that all were passed upon by the jury. But it is not conclusive. The plaintiff may show, either that a particular claim was not made, or if made, that it was distinctly withdrawn from the jury. Without su'ch proof it is error to permit a plaintiff to recover. , jjJ.</p>

<p>. ERROR to the common pleas of Erie county.</p> <p>This was an action of ejectment, by Sarah Ann Parker and others, heirs-at-law of Zachius Collins, deceased, against George Southwick, for lot No. 3333, in the town of Erie.</p> <p>The legal title to the lot in controversy, had been in Zachius Collins, who had paid the commonwealth for it, in 1797. After the plaintiffs had given evidence of this, the defendant proved, that John Kelso, under whom he claimed, bad taken possession of the lot and fenced it, in 1812, and held the possession of it until his death, in 1817. That his heirs-at-law, and those claiming under them, including the defendant, himself, had been in possession ever since; and upon this evidence, he relied upon the statute of limitations to protect his title.</p> <p>The plaintiff then proved that John Kelso had been appointed by the the state, a commissioner for the sale of lots in the town of Erie, in 1810, and that, in 1815, he sold this lot in that capacity; and the next day after the sale, took a conveyance to himself from the purchaser.</p> <p>The only material question in the cause was, whether, under these circumstances, the defendant claiming under John Kelso’s title could avail himself of the act of limitation.</p> <p>. The court below (Shippen, president) was of opinion, and so instructed the jury, that the defendant was protected by the act of limitations. Verdict for defendant.</p> <p>The opinion of the court was assigned for error.</p>

This was an action on the case by Thomas Nichol and Sarah, his wife, against John Patterson and William Patterson, administrators of Robert Patterson, to recover the distributive share of the plaintiff in the estate of her father.

<p>A justice of the peace lias not jurisdiction of a cause of action against another justice of the peace for money collected in his official capacity.</p>

<p>In an action of ejectment, the declarations of a deceased tenant, made while he was in possession of the land, respecting his tenancy, are competent evidence. So also letters written by a tenant in possession to the plaintiff may be given in evidence, subject to the opinion of the court as to their legal effect</p> <p>A party out of possession of land cannot avail himself of successive disabilities, to avoid the effect of the statute of limitations.</p>

<p>ERROR to the common pleas of Westmoreland county.</p> <p>This was an action of ejectment by Jesse Ong against William Campbell and John Shaner for the undivided three-eighth parts of nine acres of land and salt-works.</p> <p>The legal title to the three-eighths for which the ejectment was brought, was in the plaintiff, and the other five-eighths were in the defendants.</p> <p>The proof was, that in the spring of 1827, the plaintiff by parol, sold his interest in the land and works to the defendant, Campbell, in consideration that he would pay a mortgage of Jesse Ong to John B. M’Grew. The defendants went into possession of the premises, in pursuance of the contract, and made some improvements; afterwards, in June 1828, William Campbell purchased an assignment of the mortgage by M’Grew to himself, and, after this ejectment was brought by Ong, sued the mortgage.</p> <p>The counsel for the plaintiff then requested the court to charge the jury, as follows:</p> <p>1st. That Campbell having taken from John B. M’Grew, the mortgagee, an assignment of the mortgage and bonds, subject to the equity of redemption of Ong, on the 13th of June 1828, and having sued out a scire facias on said mortgage against Ong, setting forth on the record, that the mortgage debt was then due and unsatisfied, is estopped from alleging now, that he, Campbell, paid the mortgage debt to M’Grew for Ong, in performance of a parol contract entered into between him and Ong, more than a year previous to the assignment, by the terms of which, Campbell agreed to pay off the mortgage debt to M’Grew for Ong, and he was to convey his interest in the land in dispute, .to Campbell in fee.</p> <p>. 2d. That Campbell having the mortgage and bonds in his possession, for upwards.of seven years before the bringing of this suit, without ever offering to release Ong or cancel the bonds and mortgage, is evidence, of a recision of the alleged contract on the part of Campbell.</p> <p>The court answered to plaintiff’s first point.</p> <p>1st. We think that this point has been sufficiently met by the observation of the court in the preceding charge. But to prevent any misapprehension upon the subject, we instruct you, that if yqu are satisfied from the evidence, that there was a parol sale in the spring of 1827, by Ong to Campbell, of his interest in the salt-works, followed by Campbell taking possession of the premises, boring the salt well deeper, rendering it much more valuable, and making other repairs and improvements upon the property, disclosing such a case as is not within the statute of frauds, and that his object in taking the assignment referred to, and instituting the action of scire facias on the mortgage, was intended merely to complete his title by procuring the legal estate, and not to pursue Ong for any of M’Grew’s debt which might remain, nor to disaffirm the contract with Ong, then he is not estopped in the present action from setting up the parol contract. If he intended by these proceedings to dis-affirm the contract, then the plaintiff has a right to say that it has been resciuded.</p> <p>2d. No demand of the bonds or mortgage having been made on Campbell by Ong, we will not instruct you that the retention of the bonds and mortgage are conclusive evidence of a recision of the contract; but it is a circumstance amongst others, from which the jury may draw an inference of that kind.</p> <p>Verdict and judgment for the defendants.</p>

<p>ERROR to the common pleas of Warren county.</p> <p>Edmund Adams and Elias Hays against Asa P. Tarbox and David Gress. This was an action of replevin, for twenty-four thousand feet of boards and two thousand shingles.</p> <p>It was admittted that the plaintiffs had been the original owners of the property. The defendants then gave in evidence, the transcript of a judgment of a justice of the peace, at the suit of Tar-box against Adams and Hays, for 52 dollars, an execution thereupon and a levy and sale of the property in dispute to Tarbox.</p> <p>The plaintiffs offered in evidence, the original summons issued by the justice, and to prove that the judgment Was obtained by fraud and without notice to the defendants; that when the summons was issued and served, one of the defendants resided in M’Kean county, and that the other had gone to his residence in New York; that Tarbox knew this, and directed the constable to leave a copy of the summons at his (Tarbox’s) house; that Adams had formerly lived in that house, before Tarbox moved there, and that Hays had boarded there with Tarbox, but had gone to New York about a week before the service.</p> <p>The defendants objected to the evidence, but the court overruled the objection, and sealed a bill of exceptions.</p> <p>The evidence was given, and the court charged the jury, that the judgment was illegal and void, and that the defendant, Tarbox, could not protect himself in the possession of property thus fraudulently obtained. Verdict for plaintiff.</p>

<p>One who is special bail may depute another to execute a bail piece for him ; or one of two special bail may depute the other to execute it.</p> <p>One who is in the custody of his special hail upon a bail-piece from a justice of the peace of New Jersey, cannot be arrested in Pennsylvania and taken out of the custody of his bail by authority of a capias ad respondendum.</p> <p>The writ of habeas corpus may issue at the instance of any one who claims a right to the custody of the person restrained or taken from him.</p>

<p>The execution and delivery of a deed of conveyance of land, and at the same date, the execution and delivery of a defeasance by the grantee, shall be construed to be a mortgage; and upon the trial of an ejectment for the land, it is not competent for the grantee to prove that the conveyance was executed and delivered before the defeasance, which was a subsequent and independent agreement; and that the transaction was intended by the parties to be an absolute sale, if the consideration money were not repaid within the time specified.</p>

<p>ERROR to the common pleas of Armstrong county.</p> <p>Robert Brown, Sen., against Walter Sloan. Appeal from the judgment of a justice, in which among others, the following count was filed.</p> <p>And whereas, also the said James Sloan, the 23d day of December 1812, at Armstrong county, aforesaid, did draw his certain note in writing, called a promissory note, under his hand and seal, bearing date the same day and year, and that note unto the same Robert Brown, Sen., did deliver; by which said note, th$ said James Sloan did promise, “ three months after the date thereof, to pay Robert Brown thirty-two dollars and fifty cents, for value received;” and by reason thereof, as also, by force of the statute in such case lately made and provided, the said James, did become liable to pay the said Robert, the aforesaid sum of money, according to the tenor of the note aforesaid; and being so indebted, the said James, afterwards, to wit, on the 25th day of September, in the year 1830, moved out of the state of Pennsylvania, to parts unknown, and not having paid the said sum of money, or any part thereof. And whereas, also, the said Robert, for the more speedily securing the payment of the said sum, afterwards, to wit, the 21st day of April, in the year 1828, at the county aforesaid, the said sum of money or any part thereof, to the said Robert, in no sort being paid or satisfied, by a writ of foreign attachment of the said court of common pleas at Armstrong county aforesaid, issued against the said James Sloan, returnable before the justices of the said court, on the third Monday of December, A. D. 1828, to the sheriff of said county, -did procure the lands and tenements, goods and chattels, of the said James Sloan, to be attached; and the goods and chattels, lands and tenements, of the said James Sloan, by virtue of the said writ, were attached by the said sheriff. And, whereas, the said goods -and chattels, lands and tenements, being-attached so as aforesaid, the said Walter Sloan, afterwards, to wit, the 25th day of September, A. D. 1830, at the county aforesaid, in consideration that the aforesaid Robert Brown, at the special instance and request of the said Walter, would agree to stay any further proceedings on the writ aforesaid; the said Walter did assume, and unto the said Robert Brown, then and there faithfully did promise, that he, the said Walter, would pay the said sum of money to the said Robert, when thereto afterwards, he should be required and content. And the aforesaid Robert in fact saith, that that he, the said Robert, believing the promise and assumption of the said Walter Sloan, last made, afterwards, the same day and year last mentioned, at the special instance and request of the said Walter, did agree to stay any further proceedings against the property of the said James Sloan, on the writ aforesaid, which was accordingly done.</p> <p>The plaintiff, in support of the issue on his part, called as a witness, Thomas Blair, Esq., who, being duly sworn according to law, testified as follows:</p> <p>At the time of the passage of the administration account of Walter Sloan, administrator of James Sloan, deceased, on the 25th of September 1830; at that time there had been objections made to the passage of the administration account by Mr Brown, and there had been objections on -behalf of John Sloan, one of the heirs of James Sloan, and by the plaintiff, who had judgments against James Sloan, one of the heirs. When the account was brought up, I was informed John Sloan had withdrawn his objections by Mr Harrison. Mr Brown, the plaintiff, came to me, and said, that if Mr. Sloan would agree to pay his claims, he would also withdraw his objections, and the account might pass. I went to Sloan, and told him what Mr Brown had said; that if he would pay him the amount of his judgments against James Sloan. ’ Mr Sloan said that James Sloan would be entitled to his share, and he could get it out of the property. I came back and told Mr Brown what Sloan said. Brown said he would not take it in that way; but if Walter Sloan would become personally responsible to him, he would withdraw his objections. I returned to Sloan, and told him what the plaintiff said. He seemed unwilling. I rather persuaded him to do it, as his account would then pass. lie finally agreed to do it, and told me I might tell Mr Brown he would pay the amount of his judgments. I then mentioned it to Mr Brown; we went together to Mr Buffington, and Mr Brown told him he might withdraw the objections, and he did so, and the court confirmed the account.</p> <p>Being cross-examined, he said, I was then attending to it as the counsel of Mr Sloan.</p> <p>The plaintiff further, in support of the issue on his part, offered to prove, “ that Robert Brown had two several foreign attachments pending in the court of common pleas of Armstrong county against James Sloan, one of the heirs of James Sloan, deceased; that those attachments were levied upon a house and lot in Kit-tanning, and other property; that at the passage of the administration account'of Walter Sloan, the defendant, as administrator of the said James Sloan, deceased, the accountant claimed a large balance in his favour, so much as to sell the real estate of the said deceased, upon xvhich the said attachments were levied, and that said property or a part of it, Avas sold to satisfy the balance due the administrator; and that plaintiff withdrew his objections against said administration account, in consideration that the defendant, Walter Sloan, Avould pay the amount claimed in those attachments, Avhich was objected to by the defendant’s counsel, and rejected by the court, upon Avhich the plaintiff’s counsel excepted to the opinion of the court, and reqxxested them to seal this bill of exception.</p> <p>The rejection of this evidence xvas the sxxbject of the error assigned.</p>

This was an action on the case by James Greer against John Warden and others, owners of the steamboat Pennsylvania. The facts of the case, and points argued are fully stated in the opinion of the court.

James Gray against Samuel Ewalt. This was an action of trespass for mesne profits of a house and lot, in the city of Pittsburgh.

Allen & Grant and James S. Graft, trading in the name of Adams, Allen & Co., against James Telford & Son-in the court of common pleas of Allegheny county of June term 1835, No. 157, at the instance of Adams, Allen & Co., a scire facias was issued to revive judgment on No. 373 of August term 1S30. July 30th, 1835, defendants pleaded payment and filed their affidavits of defence.

<p>A sale for the payment of taxes of a tract of unseated donation land, during the life of the soldier, is void and confers no title upon the purchaser. But by virtue of the act of the 3d of April 1804, the purchaser, who has made improvements upon the land, cannot be dispossessed without compensation therefor.</p>

John P. Klingensmith had in his lifetime entered into articles of agreement, to sell to George Pfund a tract of land; Pfund gave to the vendor certain bonds with power of attorney to confess judgment, as part of the consideration, and among others, a bond for 100 dollars, payable on the 1st of April 1834. On this bond, a judgment in pursuance of the power of attorney annexed to it, was confessed on the 19th of September 1825, for 100 dollars and costs.

<p>The act of the 2d of April 1822, relating to the erection of dams in the Youghiogheny river is not retrospective in its operation, so as to apply to dams previously erected under the authority of the 23d of March 1809.</p>

This was an action of ejectment, by Bernard Connelly, Jun., against Peter Nedrow. The opinion of the court below was assigned for error. • Baird, president. The plaintiff, in this case, claims the land, by virtue of a treasurer’s sale, made by John Patton, treasurer of the county of Somerset. The deed from Patton to Bernard Connelly and Chauncey Forward, Esq., bears date on the 4th day of September 1826, and was acknowledged in court, on the 6th day of the same month.

• Jacob Kearney’s administrator against Alexander Stewart and John Shough. This was an action of trover, brought by Jacob Kearney against the plaintiffs in error, for a wagon and team. The cause was arbitrated, and an award found for the plaintiff, for 416 dollars. From this award Alexander Stewart appealed. Jacob Kearney died, and R. P. Flenniken, his administrator, was substituted. The defendant pleaded not guilty.

Ignatius Adams against Henry Easton and others. This was an action of ejectment for seventy-five acres of land on the summit of the Allegheny county. The facts of the case are particularly stated by the court below, in their charge to the jury, and which exhibits the points which were argued in this court. During the progress of the trial, the defendants offered to prove, by a witness, that he returned the survey under which the defendant claimed, to the surveyor-general.

This was an action of ejectment, by William Haslet against Samuel flaslet, for the recovery of a tract of land. The defendant claimed it under a parol purchase, which was denied by the plaintiff, and much testimony was given on this subject. The errors assigned were to the principles of law stated by the court to the jury, in their charge, which is a full exposition of the case. Greer, president.

This was an action of trespass vi et armis et de bonis, S?c., by Elijah Trovillo, Esq., high sheriff, against Samuel Tilford and A. M. Tilford. The sheriff having in his hands a fieri facias, at the suit of W. P. and T. M. Bryan, against Samuel Tilford, went to the defendant and told him, he was directed to levy on his personal property; defendant replied, that the property belonged to his son, A. M. Tilford, who was then absent.

ERROR, to the common pleas of Westmoreland county. Thomas Gallagher and others, by their father and next friend, James Gallagher, against George Gallagher’s administrators and Thomas G. Stewart and others, by their father and next friend, James Stewart, against George Gallagher’s administrators.

Andrew Robertson’s administrators, cum testamento annexo, against Joseph P. Weddle. This was an action of ejectment, in which the only question argued in this court, was on the subject of the statute of limitations, arising out of the charge of the court, as follows: White, president.

James Stewart against Jackson Hannay. This was an action on the case, founded upon the allegation that the plaintiff had endorsed a note for Oliver Parker, who failed to pay it, and he was obliged to pay the money; and that at the time the said Oliver Parker was the agent of the defendant, and the money had been borrowed for the use of the defendant, and that the plaintiff had endorsed it upon his credit.

This was an action of replevin for a cow by Michael O’Hanlen against Samuel Thompson. The facts appeared to be, that the cow had been straying upon and about the premises of the defendant for some weeks, and when she was actually taken up as a stray, she was upon the public road, which passes through the defendant’s land.

Robert Magill v. Jacob Tomer. The plaintiff brought this suit before a justice, who rendered a judgment for him on the 10th of May 1836, for 66 dollars. On the 21st of May the defendant offered to confess a judgment for 55 dollars, and his offer was entered upon the record of the justice; and of this the defendant gave the plaintiff notice. On the 28th of May the defendant appealed.

This was an action of debt on the official recognizance of D. P. Lynch, former sheriff of Fayette county. Springer’s executors obtained a judgment against N. Mitchell, on which an alias fieri facias was issued, returnable to January term 1823, No. 222, by virtue, of which the sheriff, D. P. Lynch, levied on sundry articles of personal property of the defendant, subject to a prior fieri facias, No. 153 of the same term, in favour of William Barton.

<p>In an action by an endorsee against an endorser, the drawer of the note is a competent witness to prove, that the note, although purporting to be negotiable, was not so in fact as between the parties to the action; and that the endorsements upon the note did not exhibit truly the order in which they were made.</p>

<p>■ ERROR to the district court of Allegheny county.</p> <p>John Lytle and others, heirs-at-law, of William Lytle, deceased, against Philip Shepley. This was an action of ejectment, for the one-tenth part of four hundred and fifteen acres of land. The whole tract of land had been the property of Robert Lytle, who died in the year 1811, having first made his last will and testament, as follows:</p> <p>“ In the name of God, amen. I, Robert Lytle, of Mifflin township, and Allegheny county, being weak of body, &c., do make and ordain this my last will and testament. First, I commit my soul to God, who gave it, and my body to the earth, to be buried in a decent manner, by my executors. First, I give to my beloved wife, Ann Lytle, the third of all my personal property, after my decease; also, I give to my son, James Lytle’s, five children, each 30 dollars, and the remainder of my real and personal property, I will to be equally divided betwixt my children; and further, I do appoint Samuel Heth, Jun., my whole and sole executor, &c.”</p> <p>William Lytle, the father of the plaintiffs, was one of the children of Robert Lytle, and claimed the one-tenth part of the real estate of the testator, devised to him by this will.</p> <p>The defendant was the guardian of the children of Abraham Lytle, another son of Robert Lytle, and defended against the plaintiff’s recovery, on the ground that Abraham Lytle had purchased the interest of William Lytle in the land, during his lifetime, and as evidence of it, he produced the following power of attorney and receipt.</p> <p>“ Know all men by these presents, that whereas, Robert Lytle, late of the county of Allegheny, and state of Pennsylvania, by his last will and testament, in writing, bearing date 1811, last past, did give and bequeath unto me, William Lytle, of the county of Bracken, and state of Kentucky, a certain legacy to be paid unto me by said will, made and constituted Samuel Heth, of said county of Allegheny, and state of Pennsylvania, sole executor of said will; as by said will and testament will more fully appear. Now, know ye, that I, the said William Lytle, have made, accredited, nominated, and appointed Abraham Lytle, of the county of Allegheny, my true and lawful attorney, for me and in my name, and for my own proper use and benefit, to ask, demand, and receive of and from the said Samuel Heth, the said legacy, so bequeathed to me, as aforesaid, by the said will of the said Robert Lytle, and upon receipt thereof, or payment made to my said attorney, a general release or discharge for the same to make, execute, and deliver, hereby ratifying, and confirming, and allowing whatever my said attorney shall lawfully do in the premises.</p> <p>In witness whereof, I have hereunto set my hand and seal, this 13th day of August 1812. William Lytle, [l. s.]”</p> <p>Upon which was endorsed the following receipt:</p> <p>“ Received of Abraham Lytle, 200 dollars, being in full satisfaction for my legacy, bequeathed to me by Robert Lytle, deceased, late of Allegheny, state of Pennsylvania, and I do hereby acquit and forever discharge the said Abraham Lytle, his heirs, executors, and administrators, and all other persons, from any manner of amount of the said legacy. Witness my hand and seal, this 13th day of May 1812. William Lytle, [l. s.]”</p> <p>At the date of this power of attorney, the administration account of the estate of Robert Lytle, deceased, had not been settled; but when it was afterwards settled, the personal estate in the hands of the executor for distribution, gave to each of the children 90 dollars.</p> <p>In 1814, Abraham Lytle having purchased another share of the estate, he and his brothers and sister made partition, in pursuance of which, he went into possession of the land; and has held it ever since; and, therefore, the defendant contended, that the statute of limitations was a bar to the plaintiffs’ recovery in this suit, brought in 1836.</p> <p>In answer to this, the plaintiffs proved, that on the 24th of September 1811, Abraham Lytle and his brother, Samuel, had taken a lease of the land, from their father, for five years, from the 1st of April 1812, and contended that twenty-one years had not elapsed from the termination of this lease, in 1817, before suit brought.</p> <p>The court below (Grier, president) instructed the jury, that the power of attorney and release could not be so construed as to bar the plaintiffs’ recovery; that the statute of limitations did not begin to run until the termination of the lease, and that their verdict should be for the plaintiffs. Verdict accordingly.</p>

ERROR, to the common pleas of Craioford county. George Cook against Alexander L. Miller. Upon the trial of this cause, John Depue was called as a witness, by the plaintiff. Several witnesses were subsequently called to prove that his character was bad, and that he was unworthy of credit.

<p>A surety in an insolvent bond is not released from liability upon it, by the conviction and sentence to imprisonment of the principal for a criminal offence, before the condition of the bond is broken.</p>

Robert Glendenning against John Young. Ejectment for one hundred acres of land. The title had been in the plaintiff, and the defendant alleged that he had made a parol gift of the land to him.

Thomas Stephens against Samuel Cowan and James C. Fisher. Ejectment for a tract of land, in which the jury found the following special verdict. In 1827, John Hamilton entered on the lands in dispute, built a house, and cleared about fourteen acres, which he has kept in possession by his own residence with his family, or by his tenants ever since. By virtue of his improvement, he claimed and occupied the whole of the lands embraced in the survey hereafter mentioned.

<p>ERROR to the common pleas of Crawford comity.</p> <p>Robert Andrews against John Collum. Trespass. Plaintiff declares, “for that, whereas, heretofore, to wit, on the 1st day of April 1834, and at divers times, between the bringing of this suit and the day aforesaid, with force and arms, &c., at the county aforesaid, he, the said John, the close of him, the said Robert, did break and broke down and prostrated the rails and fences of him, the said Robert, then and there lately entered, &c., &c.”</p> <p>Plea, liberum tenementum.</p> <p>The defendant made the following points, upon which he requested the court to charge the jury.</p> <p>1. That unless Andrews had an actual possession of the land at the time that Collum made his alleged entry, this action cannot be maintained.</p> <p>2. That if there was an outstanding equity in Andrews, it would not be sufficient to enable him to maintain this action, if they believed that Collum entered under colour of title, the land being vacant at the time of entry made.</p> <p>3. That an entry into land, by one having claim of title, unaccompanied by actual ploughing and cultivating the soil, with other acts evidencing an intention of taking possession, is not a trespass in law.</p> <p>4. That, admitting that Robert Andrews and those claiming under him, have an equitable interest in one moiety of the tract of land patented in the name of Joseph Andrews, yet, if there has been no survey and no partition of their respective purparts, they would hold as tenants in common, and consequently this action could not be maintained.</p> <p>5. Under the issue in 'this case, if the jury believe that the defendant is seised of any part of the tract, they must find for the defendant.</p> <p>6. If the jury believe that the deed from M’Connel to Andrews was executed without any, or other than a mere nominal consideration, they must consider Andrews merely as the trustee of Dillon, or Collum the grantee of Dillon, if they believe, from the evideuce, that Dillon satisfied M’Connel, on his warranty in the deed of the 29th of January 1816.</p> <p>7. That the plaintiff cannot maintain this action, without an actual survey, or a continued peaceable possession, designated by some known boundaries for the term of twenty-one years, against the person having the legal title.</p> <p>Shippen, president. “This is an action of trespass, quare clausum, fregit, to which defendant’s plea is liberum tenementvm.”</p> <p>Defendant’s first point is correct. Plaintiff must show an actual possession in himself, or if he has title, and no one else in possession, he is considered in law as in possession, so as to support an action of trespass.</p> <p>We do not charge, as in defendant’s second point, because we think plaintiff has shown title in himself, and the better title. Defendant, in showing his title, gave in evidence, a patent to Joseph Andrews, April 1803, for four hundred acres, which recites a warrant to Robert Andrews, and a deed from Robert Andrews to Joseph Andrews, dated the 15th of March 1803. This deed was recorded on the 16th of March 1803, and is “in trust for Robert Andrews, as to the western two hundred acres of the tract, which is the land in dispute, on which the trespass was committed.” This is a title in Robert Andrews, in writing by deed, recited in defendant’s patent, on which his title is founded, and which deed was recorded before the patent issued.</p> <p>This title, with possession under it, for upwards of thirty years, according to the testimony of uncontradicted witnesses, is a good legal title, and not to be called “ a mere outstanding equity.”</p> <p>In 1814, the heirs of Joseph Andrews sold their interest moiety to A. Dillon, telling him expressly, as proved by D. Andrews, that it was for the eastern half only. This is undisputed.</p> <p>In 1816, Dillon conveys to J. Collum, defendant, two hundred acres, as (described by mistake, to be the western half, but he takes possession, and holds what he admits was intended,) the eastern half.</p> <p>In 1834, defendant takes a conveyance from A. Dillon for the whole tract of four hundred acres and in June, takes down plaintiff’s fence, and enters to plough and sow, &c., without any attempt to show a possession in himself, or those under whom he claims for upwards of thirty years, over. This title, under these uncontradicted facts, is not sufficient to justify his entry into plaintiff’s field.</p> <p>If plaintiff and defendant are tenants in common, of the whole four hundred acres, then defendant would have the right of entry, and plaintiff could not recover.</p> <p>But the original agreement, making settlement, dated the 15th of October 1801, and recorded in 1826, recites a survey made by Mr Arthur, by a line through the centre, north and south, and that Robert Andrews was to have the western half, on which he then resided.</p> <p>This cause has been tried on its merits, relative to the trespass into the field of the plaintiff, on the western two hundred acres, where defendant sowed and reaped a crop of buckwheat; we consider the remaining points not applicable or not tenable.</p> <p>Errors assigned.</p> <p>1st. The court omitted to charge the jury on the 5th, 6th, and 7th points proposed.</p> <p>2d. The court should have charged affirmatively, as proposed in the 5th point, viz. that if the defendant is seised of any part of the tract, the jury must find for him.</p>

This was an action on the case for a conspiracy, and in which the plaintiff filed the following declaration.

This was a feigned issue to try the validity of a paper purporting to be the last will and testament of Daniel Wigle, deceased. The plaintiff, to sustain the issue on his part, gave the following testimony: Thomas Hanna, sworn, testified: It is my belief that the name is Daniel Wigle’s handwriting. I have seen him write often: he lived within eighty rods of my house for twelve years. I am acquainted with his handwriting: seen him write his name different -times.

William Magaw & Co. against William Clark and Daniel Shryock, surviving partners of Samuel B. Magaw, deceased. This was an action of assumpsit for goods, &c., sold the defendants, before the 1st of January 1825, originally brought to February term 1825, No. 33. The summons was served on Shryock only; Clark, having at that time or soon after removed out of the county.

<p>ERROR to the quarter sessions of Fayette county.</p> <p>The following bill of indictment was found against John F. Braddee:</p> <p>“ The grand inquest that now is for the body of the county of Fayette, upon their oaths and solemn affirmations respectively do present: That John F. Braddee, late of Fayette county aforesaid, yeoman, on the thirtieth day of May, in the year of our Lord one thousand eight hundred and thirty-six, at the county of Fayette aforesaid, feloniously and falsely did make, forge and counterfeit a false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of Utica, and purporting to be signed by H. Huntington, president, and also by Ellelent, cashier of the said bank;' the tenor of which said' false, forged and counterfeited writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of Utica, is as follows: that is to say—</p> <p> </p> <p>with intent to defraud the President, Directors & Co. of said Bank of Utica, to the evil example of others, in like case offending against the form of the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania. And the jurors aforesaid,- upon their oaths and solemn affirmations aforesaid, respectively do further present: That the said John F. Braddee, on the same day and year aforesaid, with force and arms having in his custody and possession a certain other false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, and purporting to be signed by H. Huntington, president, and also by Ellelent, cashier of the said bank, the tenor of which last mentioned false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, is as follows: that is to say—</p> <p> </p> <p>feloniously, falsely, illegally, fraudulently and deceitfully did alter and publish as a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, the said last mentioned false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the bank of Utica, he, the said John F. Braddee, at the time of uttering and publishing the same then and there, well knowing the same to be false, forged and counterfeited, with intent to defraud George W. Miller, to the evil example of others in like case offending, and against the act of assembly- in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>“ And the jurors aforesaid, upon their oaths and solemn affirmations, respectively do further present: That the said John F. Braddee, on the same day and year aforesaid, at the county aforesaid, with force and arms having in his custody and possession a certain other false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, and purporting to be signed by H. Huntington, president, and also by Ellelent, cashier of said bank, the tenor of which last mentioned false, forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, is as follows; that is to say—</p> <p> </p> <p>feloniously, falsely, illegally, knowingly, fraudulently and deceitfully did pass as a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, the said last mentioned false, forged and counterfeited paper writing, partly' written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, he, the said John F. Braddee, at the time of passing the same then and there, well knowing the same to be false, forged and counterfeited, with intent to defraud George W. Miller, to the evil example of others, in like case offending against the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.</p> <p>“ And the jurors aforesaid, upon their oaths and solemn affirmations aforesaid respectively do further present: That the said John F. Braddee, on the same day and year aforesaid, at the county of Fayette aforesaid, with force and arms having in his custody and possession a certain other false, forged, altered and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment- of money called a bank note of the Bank of Utica, and purporting to be signed by H. Huntington, president, and also by Ellelent, cashier of the said bank, the tenor of which last mentioned false, forged, altered and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, is as follows: that is to say — ■</p> <p> </p> <p>feloniously, falsely, illegally, knowingly and deceitfully did pass, dispose of and put away as a true and genuine promissory note for the payment of money called a bank note of the Bank of Utica, the ’ said last mentioned false, forged, altered and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine bank note of the Bank of Utica, he, the said John F.</p> <p>Braddee, at the time of passing, disposing of and putting away the same then and there, well knowing the same to be false, forged, altered and counterfeited, with intent to defraud George W. Miller, to the evil example of others in like case offending against the form of the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.-”</p> <p>James Todd, Attorney General.</p> <p>The jury found the defendant “ not guilty, defendant to pay the costs:” and the court, upon argument, sentenced the defendant to pay the costs: which was assigned for error.</p>

Action of ejectment brought by Adam Sheriff against Alexander Neal, to recover the possession of twelve acres of land. Though twelve acres were all the land embraced in this suit, yet the question of title, was involved to four hundred acres, of which the twelve formed a part.

This was an action of trespass brought by the assignees of John Sheerer, Jun. v. Jacob Lautzerheizer, sheriff of the county of Mercer, for taking and selling a quantity of store goods.

WRIT of error to the common pleas of Luzerne county. This was an action on the case, brought in. the court below, by William Fogg, the defendant in error, against the plaintiffs in error, Hiram Hobbs, inspector, and .Levi Baldwin, John Miller, and Uriah A. Gritaer, judges, of the general election, held in the county of Luzerne, on the 13th of October 1835.