Volume 6 — Watts & Sergeant's Pennsylvania Reports

<p>ERROR to the District Court of Allegheny county.</p> <p>John T. Logan and Robert T. Kennedy, trading under the firm of Logan & Kennedy, against Washington Mason and William Dilworth, trading under the firm of Mason & Dilworth. It appeared by a case stated that the defendants, Mason & Dilworth, were indebted, at the dissolution of their partnership, on the 27th June 1839, to the plaintiffs, Logan & Kennedy, who held their bills and notes for about $2000. Mason, who continued the business, and Owens, his surety, contracted with Dilworth, who retired, to pay the partnership debts. Mason continued to deal with the plaintiffs, on his own account, till the 4th December 1839, when he was indebted to them, including a small bill he owed them at the dissolution of the partnership, in the sum of #259.79. On the 25th November 1839 he transferred to them a note drawn in his favour by Johnson, which was no part of the joint effects, for #550, as collateral security, without specifying for what debt. He made a general assignment on the 19th January 1840, preferring Owens as his surety, and was discharged as an insolvent debtor on the 23d March 1840. On the 13th May 1840, Logan & Kennedy applied the proceeds of the note, by an entry on their books, to the debt due from Mason on separate account in the first place; and the residue to the debt due by Mason & Dilworth. Owens subsequently paid the plaintiffs all the partnership debt except the part of it which he insisted ought to have been satisfied out of the proceeds of the note; and it was agreed, if the court should be of opinion that the plaintiffs had a right to apply the proceeds of the note to Mason’s separate debt, in the first instance, judgment should be rendei’ed in their favour for the #259.79; otherwise for the defendants. The District Court gave judgment for the defendants, and the record was removed to this court by writ of error.</p>

This was an action on the case, by M’Cormick & Robinson against the county of Jefferson; which, at the instance of the plaintiff, was referred to arbitrators, who made an award in their favour for $170, from which the defendant appealed without the payment of costs.

John Sarber against D. D. Fisk and Fanny Fisk, administrators of Alba Fisk, deceased.

<p>ERROR to the District Court of Allegheny county.</p> <p>James Entriken, Jun. against Myers & Richey. Case in assumpsit. The defendants received a quantity of blooms from the plaintiff to sell on commission. On the 27 th of December 1841 they sold the blooms to Messrs King, Higby & Anderson, and on the same day informed the plaintiff, by letter, as follows: “ We have sold your blooms to King, Higby & Anderson, at four, six and eight months’ time, for $60 per ton, which was the best that could be done in our market,” &c. The defendants endorsed these notes and discounted them in bank.for their own use, having a private arrangement with the purchasers that the, notes should continue to be renewed from time to time, as they became due, for one, two, or three renewals of sixty days, if the banks were willing to renew them.</p> <p>As the notes severally fell due, they were accordingly renewed by new notes, drawn by the purchasers and endorsed by the defendants, deducting certain amounts paid on them at the time of renewal, sufficient to pay charges and expenses to defendants and some $200 or $300 over. After this, on the 10 th of September 1842, King, Higby & Anderson stopped payment and became bankrupt; but sonie time after withdrew their bankrupt proceeding and compromised with their creditors. The defendants informed the plaintiff of the bankruptcy of King, Higby & Anderson, by letter dated 12th September 1842.</p> <p>There was also some evidence that it was not unusual for consignors or factors, in Pittsburgh, to make such arrangements with their vendees, and to discount the notes for their own use in the banks, continuing to renew them from time to time, so long as the banks will permit. And upon this state of facts, the question in this case was, whether the defendants were liable for the whole amount of the goods sold, or only for the amount received 1</p> <p>Grier (President) instructed the jury that the defendants were liable for the whole amount of the goods sold. Yerdict and judgment accordingly.</p>

The plaintiffs called a witness, who stated that he resided in Young township, and paid taxes. The defendant objected to his competency, but the objection was overruled, and the defendant excepted. The plaintiffs moved to amend the prcecipe and writ by striking out the names of Thomas M’Kee ei al., so that the suit would be, “The School Directors of Young Township v. Barnet,” and to make the declaration correspond thereto.

John Bell against Samuel Murphy, bail of Henry Defebaugh. This was a scire facias upon a recognizance. John Bell obtained a judgment before a Justice against Henry Defebaugh, from which he appealed. The cause was tried in court, and a verdict and judgment rendered for the plaintiff. To the scire facias upon the recognizance the defendant pleaded nul tiel record.

John Pearson against James Moore, Hugh Moore, and Aaron W. Mumford. Ejectment for S00 acres of land.

<p>ERROR to the District Court of Allegheny county.</p> <p>This was an action of assumpsit for goods sold and delivered, brought by Washington M’Clintock & Co. against Lewis Noble & Co. For a former report of this case, see 2 Watts <§• Serg. 152. On this trial the defendant’s counsel offered to read to the jury the opinion of the Supreme Court in this case. This was objected to, and overruled by the Judge, who assigned the following reasons :</p> <p>“ On a late ineffectual attempt to try this cause, a use, or rather abuse, was made of that case which I cannot permit to be repeated. The opinion of the Supreme Court delivered on the case before them is not at all relevant to this case now before us; no point of law raised in this case was passed upon by that Court. On the first trial of the cause before me, Judge Shaler, then counsel for defendants, made two points of law, both of which I ruled against him, to which ruling he excepted; and I drew up my opinion afterwards in a few words, so as fairly to state the points of law ruled, without pretending to set forth my usual directions to the jury to judge of the facts for themselves. But when the cause came to be argued in the Supreme Court, new counsel employed excepted to the opinion because it did not submit the facts to the jury, and the cause was reversed for that objection; (one not true in fact, but which the brief and careless abridgement of my charge left it entirely open to;) and in the reasons given for reversal some opinions on the facts are given by Judge Rogers, but which, on the issues trying in this court, are wholly irrelevant. On the late trial these remarks were read and commented on to the jury, and they were led to believe that the Supreme Court had decided all the law and facts of the case, and a portion of the jury were induced to disregard everything said to them by this court; and as the jury could not agree as to which court they were bound to obey, our time was lost, no verdict being rendered.”</p> <p>The defendant excepted to this opinion, and the court sealed a bill of exception.</p> <p>The plaintiffs offered to read the notes of the testimony of David Noble, taken on the first trial of the cause, after proving that the witness then lived at St Louis. The defendant objected on the ground that his deposition might have been taken on a commission; and also because the witness had not been fully examined; and in support of the latter objection it was proved, that the witness had been examined, cross-examined, and dismissed from the stand, but was then requested to return the next morning: that two other witnesses were examined before the court adjourned; that next morning, upon search being made, the witness could not be found, although he resided in the city. The court overruled the objections and sealed a bill of exception.</p> <p>The defendants requested the court to charge the jury upon certain points, which are sufficiently stated in the opinion of the court.</p>

This was an action by A. L. Chenie & Co. against Sharp Hemp-hill, the owner of a keel-boat upon the Ohio river, to recover the price of a box of dry-goods delivered to him at Pittsburgh, and consigned to Rowland, Smith & Co., Louisville. The-court below thus stated the case and instructed the jury, who found a verdict for the plaintiffs for $447.61. Grier, (President). — The plaintiffs are merchants residing in the west.

, THIS was an action of assumpsit, brought in the District Court of Allegheny county, by John Irons against William Eichbaum John D. Davis, William Black, and William D. Darlington. The case was this. When the event of the presidential election in 1840 had been ascertained, General Harrison’s friends in Pittsburgh and Allegheny, met at the plaintiff’s tavern, their late head-quarters, to discuss the propriety of celebrating their success by a public entertainment.

Mercer county for the use of Alfred and Moses Corey against Thomas Coovert and others. Held: and a decision was thereby made in favour of the site above; at this election it was proved that children had voted.

This was an action of ejectment by John Pattison against David Stewart and others, to recover a tract of 200 acres of land.

George Bovard against John Floyd & Company. This was an action of assumpsit, brought by the plaintiff to recover the proceeds of a quantity of pig-iron sold by the defendants as commission merchants. Robert J. M’Gowan, an iron-master in failing circumstances, had assigned a quantity of pig-metal to David M’Junkin, one of his creditors; and had subsequently assigned to Alfred Nesmith whatever should remain of it after satisfaction of M’Junkin’s debt.

<p>ERROR to the Common Pleas of Jefferson county.</p> <p>James L. Gillis against Robert M’Kinney. Action on the case in assumpsit. The case is fully stated in the opinion of the court.</p>

Edward L. Lines and William W, Scott, trading under the firm of Lines & Scott, against David Eckert, administrator of John Johnson. This was an action of assumpsit. The declaration contained the common money counts; to which the defendant pleaded that the intestate was an infant at the time of the supposed promises; and the plaintiffs replied that the goods provided were necessaries.

Joseph Henderson, administrator of Grace Clark, against Josiah Clark.

ERROR, to the District Court of Mercer county. John P. Garrett against Loring Lusk. This was an action founded upon a note for the payment of $434.91. On the same day the writ issued, the plaintiff entered a rule to have arbitrators chosen. They were afterwards chosen, and made an award for the amount of the plaintiff’s claim, from which the defendant appealed and made the necessary affidavit required by law, and entered into recognizance, on the 23d August 1843.

This was an action of ejectment by the heirs of Nathaniel Plummer deceased, against Eli Neile and others, for a tract of 390 acres of land. The whole case is fully stated in the opinion of the court.

This was an action of trover and conversion, by John M’Clelland against David M’Bride. The facts of this case were dependent entirely upon parol testimony, which was voluminous and contradictory. The substance of them was, that Andrew S. Joy, being the tenant of the plaintiff, sold to him certain articles of personal property, consisting of a horse, two cows, some sheep, hogs, &c., in payment of his rent.

<p>ERROR to the District Court of Allegheny county.</p> <p>This was an action of assumpsit, brought by Thomas Pearce against James Miller. The plaintiff claimed $700, with interest from the 7th May 1838, for so much money had and received.</p> <p>Abraham Pearce, father of the plaintiff, some time previous to the 31st December 1833, owned a small tract of land containing about 40 acres, in Pine township, on which he resided, and on that day by a deed in which he was joined by his wife, duly executed and subsequently acknowledged and recorded, he conveyed the tract to the defendant for the consideration in the deed of $430, At the time of the conveyance Abraham was indebted to sundry individuals to the amount of about $275; one debt amounting to about $30. One of his horses had been levied in execution, and he was in hourly expectation that other executions, to the amount of about $130, would be levied upon the small tract on which he resided. He was possessed of real property other than the small tract, which was estimated as worth $1000 or $1200, and personalty subject to execution, worth perhaps $100 more. During the existence of this state of embarrassment, Abraham, having consulted the defendant, was advised by him to convey the tract in controversy to him, as the best means of saving it from the grasp of his creditors, and compelling them to resort to his other tract; and, in pursuance of such advice reiterated both tq him and his wife, he consented to make a voluntary deed to the defendant of the 40 acre tract; and the defendant, as an inducement to persuade him and his wife to execute the deed, declared that he would hold the tract in trust for his son, the plaintiff, and that he would convey it to him when he came of age, or that if he sold it, he would pay him over the purchase money on his arriving at the age of 21 years. Under this inducement (no consideration in fact having passed between the grantor and grantee) the deed referred to was executed. The defendant afterwards sold the land; and although he accounted with the plaintiff’s father for the rents before the sale, he refused to account for the purchase money, the whole of which, it was admitted, he had received.</p> <p>To prove all the facts as contained in the foregoing statement, the plaintiff offered Abraham Pearce as a witness.</p> <p>The defendant objected for the following reasons: —</p> <p>1. That it is an attempt to prove a sale of land rendered void by the statute of 13 Eliz. cap. 5.</p> <p>2. That the witness offered is the grantor in an absolute deed, which contains a covenant of general warranty duly acknowledged, and is therefore not competent to invalidate it.</p> <p>3. That the witness being bound by the warranty, is incompetent to testify for his son until he be released.</p> <p>4. That it is not competent to prove by the witness a consideration different from that contained in the deed.</p> <p>5. That the plaintiff cannot allege and prove a fraud on the part of his father, and predicate his right to recover in this suit upon it.</p> <p>The court overruled the objections and sealed a bill of exception.</p> <p>Shaler, (President) was of opinion that there was no legal difficulty in the way of the plaintiff’s recovery; and if the jury believed the facts as alleged by them, their verdict should be in his favour.</p>

THIS was an action on the case in the District Court of Allegheny county, brought by Adam Coons and David Coons against the Monongahela Navigation Company, for obstructing the water in the Youghiogeny river and injuring the plaintiffs’ mill. The defendant is an incorporated company, and authorized by its charter to erect dams in the Monongahela river for the purpose of a lock and slackwater navigation between Pittsburgh and the Virginia State-line.

This was an ejectment brought by Bailey and others, the representatives of Samuel Jackson, to recover an undivided moiety of 100 acres of land in Washington township, Fayette county, including glass-works. The defendant relied on a sheriff’s deed of the land; it having been sold on a judgment against the executors of Jackson. The suit in which this judgment was obtained was not brought until seven years after the death of Jackson.

<p>ERROR to the Common Pleas of Armstrong county.</p> <p>This was an action of debt brought by Horatio G. Greaves against J. N. Nesbit and others, on an insolvent bond dated 11th January 1842. The defendants pleaded payment, and specially that the bond was given by Nesbit conditioned for his appearance at the court ensuing its date of Armstrong county, to present his petition, &c. for the benefit of the insolvent laws of this Commonwealth; that on the 18th March following the date of said bond, Nesbit applied for the benefit of the bankrupt law; and that on the 17 th August following he received his discharge. The plaintiff demurred to the special plea. The defendants joined in demurrer, and withdrew the plea of payment. The court entered judgment for the plaintiff on the demurrer; which the defendants assigned for error.</p>

This was an action of ejectment by John Smull against A. J. Jones, Theo. Fenn, and the Harrisburg Savings Institution, to recover a house and lot in Harrisburg. During the pendency of the suit, John Smull died, and his heirs-at-law were substituted. The plaintiffs’ claim was founded upon an allegation of fraud on the part of the defendants and John Snevily in purchasing the property at sheriff’s sale as that of the plaintiffs.

Samuel Parker against William Donaldson. This was an action of assumpsit to recover the price of goods sold and delivered, the facts of which are fully stated in the former report of the case. 2 Watts Serg. 9.

<p>One of the co-defendants, upon whom the process was not served, may he a competent witness for the plaintiff to prove particular facts material to the issue; but he is not competent for the purpose of establishing the fact of a partnership between himself and his co-defendants.</p> <p>The rule, that all who participate in profits are liable as partners, is subject to many exceptions. If three enter into an agreement, by the terms of which one is to do certain things and the other two certain things, each at their own expense, and each to be entitled to an equal share of the profits arising out of the subject-matter of the contract, this does not constitute them all partners and make them all liable for expenses incurred by either in the performance of their part of the contract.</p>

IN these cases actions of debt were respectively instituted in this court by the Schuylkill Bank in the city of Philadelphia against Hosea J. Levis & Charles Macalester, and Hosea J. Levis & Peter Wager on two bonds for $10,000 each, in which Macalester & Wager were sureties for the faithful performance by Levis of his duties as cashier of that bank. The writ was returned served on Macalester & Wager and nihil hahet as to Levis. The defendants entered a rule of reference.

This was an action on the case brought by-Lawrence & -Robinson, trading as Lawrence & Robinson, against John Phillips & Daniel P. Bussier, trading as Phillips & Bussier, on the following promissory note: $1539 78 New York, 6th Dec. 1841.

<p>The defendant under the Act of Assembly may not only defalcate a claim founded on the contract on which the plaintiff sues, but one arising from breaches of other contracts.</p> <p>Breach of a contract by the plaintiff producing loss to the defendant, is sufficient consideration to sustain the defence of set-off or defalcation.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>This was a scire facias brought by Henry Nixon, who survived John C. Stocker, against George M’Callmont. The plaintiff gave in evidence a warrant of attorney from M’Callmont, dated 12th March 1832, reciting a bond of the same date from the latter to Nixon & Stocker in the sum of $91,500, conditioned for the payment of $45,750 on demand, with interest, on which judgment was entered up on the same day. Also the following declaration of trust executed by Nixon & Stocker the same day, and recorded 9th May 1832:</p> <p>“ Whereas George M’Callmont hath this day executed to us his bond, with warrant to confess judgment, conditioning, for the payment of $45,750 on demand, with interest from the date: Now, therefore, we hereby agree and bind ourselves and each of our heirs, executors and administrators, to the said George, his executors, administrators or assigns, to appropriate and apply the money arising from the said bond, as the same may be from time to time received.</p> <p>First, To the payment of all debts owing by said George, not exceeding $50 each; of which written notice shall be given to us or either of us, on or before the 1st day of April next.</p> <p>Second, If any surplus should remain, then to the payment of all notes issued, lent or endorsed for the use and accommodation of the said George M’Callmont, by the following persons, or for which they or either of them are or may be liable. That is to say,</p> <p>By Henry Nixon,.........................................$28,160</p> <p>By John C. Stocker,....................................... 7,300</p> <p>By John Hemphill,........................................ 1,650</p> <p>By Philip A. Ricard....................................... 4,600</p> <p>And to the payment of debts due from said George to John M’Callmont, for the wages of him and his wife, amounting, to........ 2,816</p> <p>The second class amounting, in all, to....................$44,526</p> <p>And if the money which may be received by us under said bond shall not be sufficient to pay the whole of the debts of the second class, then to distribute and pay the same from time to time, pro rata, on account thereof. And if any surplus should remain, then to pay over the same to the said George, his executors, administrators or assigns: Provided,” &c, (proviso as to the responsibility of the parties). “And provided further, that nothing herein contained shall be construed to prevent any proceedings on the said bond, before said note may become payable for the whole amount thereof; it being understood and agreed, at the execution of said bond, that the same may be proceeded upon at our discretion, either for the security of the debts before-mentioned, or for the tjmely provision of funds for the payment of said debts and notes, dr otherwise, as to us should seem requisite, notwithstanding said notes should not be payable according to their tenor.”</p> <p>On the 28th June 1837 the following amicáble agreement, signed by M’Callmont and Nixon, was filed:</p> <p>“ Henry Nixon, who survived J. C. Stocker, vs. George M’Callmont. Dt. Ct. Scire facias to revive judgment. D. S. B. March 12, 1832. For $91,500.</p> <p>It is hereby agreed that the above judgment shall be, and the same is hereby revived for the sum of $9240, the whole amount for which the same was given having been fully paid and satisfied, except the debt due to the Bank of North America, of which the principal is $4620.”</p> <p>The plaintiffs then offered proof of the amount of interest due to them on their debt at the time of the entry of this last judgment, (28th June 1837). This evidence was objected to by the defendant ; and on an intimation from the court that under the pleadings it could not be received in that stage of the cause, was withdrawn for the time.</p> <p>The defendant then gave in evidence the following receipts endorsed on the agreement for judgment and signed by Nixon:</p> <p>“ Received of George M’Callmont $2620 on account of the debt due as above, November 20, 1838, leaving $2000 yet due.”</p> <p>“Received June 25, 1839, of George M’Callmont $1000 on account of the within bond, leaving a balance due of $1000.”</p> <p>The plaintiffs then, for the purpose of showing the amount of interest due by the defendant at the time of the confession of the judgment of 1837, after reading a notice to the defendant to produce an account dated April 26, 1837 and transmitted to the defendant by the cashier of the Bank of North America, called the cashier to prove he had sent the account to the defendant, a copy of which was produced, and that, the defendant had acknowledged the receipt of it. This evidence was objected to by the defendant and overruled by the court, who sealed an exception.</p> <p>This account was headed,' “ Statement of interest on George M’Callmont’s notes endorsed by Henry Nixon.” It charged the interest and gave credit for the various dividends received, and closed with a balance due of $4620 with interest from the 9th August 1836 (when the last dividend was received) to the 26th April 1837.</p> <p>The plaintiffs further offered the following letter from M’Callmont to Nixon, dated June 22, 1837: “ Dear Sir, — It is my wish to have the bond cancelled which I gave to you and J. C. Stocker in 1832, as trustees, and to give you one for the balance due on the principal, viz. $4620, with stay of execution for six months. In relation to the interest due, I will give you the notes of G. M’Callmont & Co., payable at such periods as we may agree upon — say six, nine and twelve months.” This evidence was objected to by the defendant and rejected by the court, and an exception sealed.</p> <p>The plaintiffs further offered in evidence an account dated 19th February 1640, sent to the defendant by the cashier of the Bank of North America, and produced by the defendant on notice. This account was headed, “ George M’Callmont & Henry Nixon, Dr to the Bank of North America for the following notes drawn by George M’Callmont and endorsed by Henry Nixon (and interest thereon).” It commenced in 1832 and ended 31st January 1840, and stated the interest due and dividends received, abd closed with a balance of $4101.48 intei’est and $1000 pi’incipal; total $5101.48. The defendant objected to this account, but the court overruled the objection and allowed it to be read to the jury, instructing them at the same time that no part of the account referring to matters antecedent to the entry of the agreement to revive the original judgment on the 28th June 1837, was to be taken or considered by them as in any way, whatever affecting such agreement, or the amount of the judgment of revival, or as a guide to them in assessing or ascertaining the sum for which they were to give a verdict in the present case; but that the same was to be understood to be wholly and entirely inoperative. The effect of the entries referring to matters subsequent to the 28th June 1837, was, however, a proper subject for their consideration. The plaintiffs excepted to this instruction.</p> <p>The plaintiffs then offered in evidence the notes of the defendant, endorsed by Nixon and referred to in the declaration of trust as intended to be secured by the original judgment, but they were severally objected to by the defendant and rejected by the court, who sealed an exception.</p> <p>The Judge charged the juxy as follows:</p> <p>The judgment is conclusive evidence of the amount which it was taken to secure. If the plaintiff had antecedent rights, which might have been included in the judgment but were not, we cannot notice them in this action. The utmost, then, which the plaintiff could have demanded, if we suppose nothing had been paid, would have been $4620, with interest at six per cent, from the time the judgment was confessed to this time; but whatever the defendant has paid upon the judgment since it was given, should be allowed him. The defendant claims to be allowed two sums, viz. $2620, paid on the 20th November 1838 — a receipt has been read, showing this payment, concluding with the words, “ leaving $2000 yet due;” the other sum is $1000, paid on the 25th January 1839 — a receipt has been given in evidence, showing the payment of this sum, concluding with the statement “leaving a balance due of $1000.” You will therefore proceed upon these principles. Compute the interest upon the debt mentioned in the judgment, till the time of the first payment, and then deduct from the debt and interest so computed, the first payment of $2620; then compute the interest upon the balance up to the time of the second payment of $1000, and then deduct that; and then proceed to compute the interest upon the balance until the present time.</p> <p>But an account has been given in evidence, showing, it is said, a balance of $5101.48 due on the 19th February 1840. This account includes matters which transpired between the parties before the date of the judgment in question, as well as two payments since. This paper cannot have the effect of enlarging the judgment. The utmost that the plaintiff can receive under this judgment, is the sum which it was confessed to secure, with lawful interest. If there is any hardship in this rule, we cannot help it. The legal effect of a judgment of a court of record is as well defined as anything else. If the plaintiff was entitled to a sum for interest at the time of the confession of the judgment, which was not included in it, the plaintiff cannot recover it in this action, however just his claim for it may be. The plaintiff cannot get more out of the judgment than is in it. I did not feel at liberty, however, to reject this account when offered in evidence. Had the receipts for the $2620 and the $1000 been so expressed as not to appropriate those sums to the judgment, the account might have been very important evidence upon the question of appropriation. But the receipts appropriate the payments expressly; the first receipt is said to be “ on account of the debt due as above,” and that receipt is written at the foot of the agreement to confess the judgment. The other receipt purports to be “ on account of the within bond,” but within is the agreement to confess the judgment. It is not, properly speaking, a bond, but the same, you perceive.</p> <p>It is contended by the defendant that the utmost which can be recovered is $1000, with interest from the 25th January 1839. The argument is founded on an expression in the receipt of that date, that only $1000 was due. An expression of this kind in a receipt is not absolutely conclusive. The right of the plaintiff was to have interest from the date of the judgment, and the defendant is bcwnd to show either that the interest is paid, or some agreement between the parties that it should not be demanded. The defendant relies on the expression in the receipt before referred to, in which the balance is stated, and also upon the account which was given in evidence by the plaintiff dated 19th February 1840. But the part of the account relied on refers, as I have said, to matters which transpired before the judgment, and should not be allowed to vary the rights of the parties under it. As to the expression in the receipt touching the amount due, it does not appear to me to be anything more than such a general statement as would be made when a receipt is given without a calculation of interest. But this is a question for you to consider.</p> <p>The jury retired, and after some time returned into court and requested the Judge to explain that, part of his charge which related to interest since the revival of the judgment in 1837.</p> <p>The Judge further instructed them:</p> <p>1. That they had no right to take the sum of $9240 as the amount due in 1837 and so settled by the parties; but that they must take the sum of $4620 as the agreed and settled debt then existing, and charge interest on that sum only, unless they could find in the papers in evidence something to induce them to believe that the parties had made a contract to charge no interest.</p> <p>2. That they were not authorized by any evidence in the cause to go behind the judgment of June 1837 and charge the defendant with interest then due; and that they had no right to take the account ofFebruary 19,1840 as evidence of anything prior to June 28, 1837; and could not infer any agreement or consent on the part of the defendant to allow interest, except on the sum of $4620 from the 28th of June 1840.</p> <p>The plaintiffs excepted to the charge and assigned errors in the bills of exception and charge of the court.</p>

This was an action of debt brought by Charles Bond against John Aitkin and James Aitkin, trading under the firm of John and James Aitkin, on the following note: Six months after date we promise to pay to Charles Bond or order four hundred dollars, with five- per cent, interest, without defalcation, for value received. Witness our hands and seals, this 1st day of October 1836. Jno. & Jas.

This was an action on the case for waste brought by John Good Jr, against Henry Woodman and Mary his wife, late Mary Smith. The • declaration set forth that.

This suit was originally brought before a justice of the peace by Abraham Long against Elias Utt to recover I4.03J, the amount of his daily pay and mileage as a witness for the plaintiff in an action of ejectment in which Adam Utt, a lunatic, by his committee William Hackett, was plaintiff, and Jacob Ujjt defendant. The justice gave judgment for Long, from which the defendant appealed.

Shoemaker & Ogden commenced an action against Moses Thomas by summons issued on Saturday the 1st day of January 1842, returnable on the first Monday of January 1842. The plaintiffs filed a copy of the note on which the suit was brought, in the following words: Philadelphia, 30th December 1840. $184.72. Twelve months after date I promise to pay to the order of Shoemaker & Ogden, without defalcation, one hundred and eighty-four dollars and seventy-two cents, value received.

This case came before the Register’s Court on an appeal from the register. Sarah Werkheiser and Salome Werkheiser appeared before that court, the former alleging that David Werkheiser had .made his nuncupative last will and testament, and the latter denying the same. Sarah, as the legatee named in the will, applied to the court to award an issue to the Common Pleas to try the questions of fact in the cause.

This was an action of assumpsit brought by Joseph Rittenhouse against Nicholas Rittenhouse and Jacob D. Rittenhouse, administrators of Martin Rittenhouse, deceased, the grandfather of the plaintiff, to recover a distributive share of the estate of the intestate. It appeared that Martin died in 1829, leaving six children known to be alive and three grandchildren, one of whom was the plaintiff, the issue of a seventh child, Joseph, who was supposed to be dead.

<p>Testator after giving his wife an annuity directed his executors “ to ascertain how much has been advanced by me to each and every of my children, &c. and how much each of them may be indebted to’me on bond, note, book-account or otherwise, and to so divide the residue of my said property among my said children, &c. as that each child may have an equal share of my estate; that is, that the monies so advanced to any of my said children,'&c. and for which they shall be indebted to me as aforesaid, be counted as so much paid on account of the share of such child in my estate,” &c. .The testator at his death held notes of each of his sons, a book-account against one, and a bond and warrant of his son-in-law never entered up. On one of the notes he had received a year’s interest eight years before the date of the will: on the others no interest was ever paid. Held, that the will converted the notes and bond and book-account from debts into advancements, and that no interest was chargeable on them.</p>

Commonwealth ex relatione Henry Shuster against Emanuel Street. This was a quo warranto issued on the suggestion of Shuster that he was elected assessor of the Fourth Ward, Spring Garden, against Street, tó show by what authority the latter exercised that office. The defendant in his answer claimed the office on the ground that a vacancy existed on the 1st May 1843, upon which the county commissioners appointed him, and he was duly qualified.

of Bucks county, in which suit was brought to April term 1839 by Samuel Gilkyson (on whose death his executors were substituted) against Aaron Larue, and a verdict and judgment rendered for the defendant. The suit was on a promissory note dated April 18th 1829, made by the defendant in favour of James Gilkyson, promising to pay the sum of |850 with interest at 5 per cent, until paid.

This was an action of ejectment for a messuage and 14 acres of land in Lower Salford township, in which George Anders, Jun. and Casper Schultz, poor-officers of the Schwenkfelder Society were plaintiff's and David Zimmerman defendant.

Brown & Benjamin Lowerre, trading under the firm of Brown, Lowerre & Co., on the following promissory note, a copy of which was filed : “Philadelphia, May 10, 1841. $667 Twelve months after date we promise to pay to the order of Samuel H. Aldridge, six hundred and sixty-seven dollars, without defalcation, for value received. Brown, Lowerre & Co. (Endorsed) S. H. Aldridge, Thos.

<p>This was an appeal from the decree of the Court of Common Pleas of Philadelphia county, by John Murphy and Placette his wife, late Placette Caze.</p> <p>Anthony Laussat, the elder, on the 8th June 1819, executed a general assignment to Honoré Fournier, in trust for certain preferred creditors, and afterwards for the benefit of his general creditors. The material provisions of the assignment were “ for the uses following, to wit: after selling and disposing of the property and collecting the debts, from the proceeds thereof,</p> <p>1. Upon trust, in the first place, to retain and reimburse himself the costs and expensed which he, the said H. Fournier, shall incur therein.</p> <p>2. To pay and satisfy in full the sum of $5178.32 to Placette Caze, a minor, to be paid' to her or whosoever may be legally entitled to receive it for her.</p> <p>3. To pay and satisfy in full the sum of $800 to the widow Caze.</p> <p>4. To pay and satisfy in full the sum of $150 to Henry Labruere.</p> <p>5. To pay and satisfy in full several bills and accounts hereafter to be specified by Anthony Laussat to Honoré Fournier, amounting altogether to the sum of $600.</p> <p>6. To pay and satisfy in full the sum of $1600 to Sharpnack and Destouet in partnership.</p> <p>7. To pay and satisfy in full the sum of $5500 to Andrew Curcier, on condition, however, that before he receives the said payment or any part thereof, he shall pay and deliver to Anthony Laussat all the promissory notes now outstanding in his favour on which Anthony Laussat is endorser, or for which he is responsible; including particularly one dated the 17th of October 1818, at sixty days, for $2050, in favour of the widow Caze.</p> <p>8. After making the said preferred payments, that to Andrew Curcier to depend, however, on the terms aforesaid, then to pay all the creditors of Anthony Laussat resident within the United States of America, who shall have released their claims within thirty days from the date hereof, and all his creditors without the United States of America who shall have released their claims within twelve months from the date hereof, the amount of their several debts, in case there be enough hereby assigned for that purpose; but, if not, then to pay the said releasing creditors in average and pro rata proportions; the distributions among the said unpreferred creditors to be equal, pari passu, without any priority among them.</p> <p>9. If any surplus shall remain of the said proceeds after all the said payments, to pay the same to the said Anthony Laussat, his executors,” &c.</p> <p>The fund which came to the hands of the present assignee, who succeeded to the trust by appointment of the Court of Common Pleas, was $23,454.92, received between 1836 and 1838, from the commissioners under the French treaty, as indemnity for confiscated merchandise belonging to Mr Laussat. The sum so received was adequate to the payment of all the preferred creditors without interest, and if the claims of Honoré.Fournier and Adrian Lestapies, to meet which $10,000 of the fund had been directed to be retained by the auditor, should not be established, a considerable portion of the interest'claimed by the preferred creditors.</p> <p>The claim for interest, on behalf of the appellants, was made at the hearing, and rejected by the auditor; and his report being excepted to on account of s.uch rejection, the court below confirmed the report.</p> <p>It appeared by the report of the auditor, that the amount for which Placette Caze was preferred was due to her by Anthony Laussat for her marriage portion, which had been entrusted to him, and that she had other claims against him.</p> <p>A release as creditors of Anthony Laussat, in consideration of the terms of the assignment of all and all manner of actions, suits, claims, demands, &c., appeared among the documents on the appeal, executed amongst others by And. Curcier, Placette Caze, H. Labruere, and Sharpnack, Destouet & Co., but it was without date.</p>

THESE were writs of error to the District Court for the city and county of Philadelphia. The first was an action brought by John J. Poindexter against Robert Patterson & William C. Patterson, trading as R. Patterson & Co., on the following instrument, a copy of which was filed : No. 716. Mississippi Union Bank', Jackson, Miss., July 2,1839.

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which William Agnew declared against William Brown in assumpsit for money paid, laid out and expended, and for money lent and advanced. The defendant pleaded non assumpsit, payment and set-off with leave, &c. On the 1st February 1830, the plaintiff and defendant entered into partnership in the city of Philadelphia for the term of three years.

<p>ERROR to the Common Pleas of Chester county, in which an action of assumpsit for goods sold and delivered was brought to February term 1841, by Caleb Swayne and Joel Pennock, lately trading under the firm of Swayne & Pennock, to the use of Benjamin Swayne, David Walton, john.M’Gowen and Reuben Pusey, their assignees, against George W. Pennock and Joel Pennock, lately trading under the firm of G. W. & J. Pennock. On the 20th January 1841, the writ issued in. conformity with the prcecipe against George W. Pennock and Joel Pennock, lately trading under the firm of G. W. & J. Pennock, and the' next day. the sheriff returned “ Summoned personally on George W. Pennock.” On the day the writ issued, a declaration was filed, stating that the plaintiffs “complain of George W.'Pennock, who has been summoned to answer the plaintiff in an action of trespass on the case; for that whereas the defendant and Joel Pennock (who was joined as defendant in the writ in this suit, but who was not summoned, as appears by the record,) lately trading under the firm of G. W. & J. Pennock, &c. were indebted to the plaintiff, &c.” for goods sold and delivered. After a rule to plead, the defendant pleaded non assumpsit and payment with leave, &c., and in May 1842 a verdict was rendered ior the plaintiffs for $4757.77.</p> <p>The record contained notes of the evidence and bills of exception to evidence; but these were not certified by the court below, and therefore not noticed here. The following errors were assigned :</p> <p>1. The praecipe and writ are against G. W. & Joel Pennock jointly as defendants; and the sheriff returns that he has summoned G. W. Pennock, without taking any notice of Joel, the other defendant, in his return.</p> <p>2. The plaintiffs file their declaration against George W. Pennock alone, without stating in the declaration that the sheriff had returned that Joel, the other defendant, could-not be found; or that the said Joel, the other defendant, was not or could not be found within the bailiwick of the sheriff.</p> <p>3. The jury are sworn, and the verdict and judgment are entered generally, without saying whether against one or both of the defendants.</p>

<p>THIS was an action of assumpsit for money had and received, brought in this court by Mariano de Aycinena, executor of Juan Fermin de Aycinena, against Adolphus Peries. It was tried before Rogers, J., at Nisi Prius, and now came before this court on certificate of error. The facts are fully stated in the opinion of the court.</p> <p>The case was argued by</p>

Sally Maffit against William Clark. This was a case stated as follows: The fee-simple interest in the tract of land in dispute was vested in the Rev. Cyrus H. Jacobs. He died on the 14th September 1836, intestate, leaving a widow, Jane W. Jacobs, and two children, Anna Maria Jacobs and Lucy Strawbridge Jacobs, both infants.

One year after date I promise to pay M. Moore, Jun. or order three hundred and thirty-six dollars, for value received. (Signed) Jacob Keck. (Endorsed) Mord.

Bernard and Christian W. Hahn, late trading under the firm of Serrill, Bernard & Co. against Peter Y. Opie, surviving partner of Edward Innis & Peter V. Opie, late trading under the firm of Innis & Opie. The- plaintiffs gave in evidence a book-account against the defendants for $293.23.

<p>ERROR to the Common Pleas of the county of Philadelphia.</p> <p>This was an action of debt, instituted before the mayor of the city of Philadelphia, to recover the penalty of six dollars, for an alleged violation of an ordinance of the city, passed 28th May 1835, entitled “A supplement to an ordinance relating to markets.” The said ordinance is as follows : “ That from and after the passing of this ordinance, the penalty imposed upon any person or persons for selling beef in the western moieties of the market-houses in High street, west of Delaware Fourth street, shall be six dollars, recoverable with costs, according to law; and that so much of any ordinance as is inconsistent with the provisions of this ordinance be, and the same is hereby repealed.”</p> <p>The mayor rendered judgment for the plaintiffs, and the defendant appealed to the Common Pleas, where the following case was stated for the opinion of the court in the nature of a special verdict, with liberty for either party to take a writ of error.</p> <p>The defendant is a farmer, residing in Chester county Pennsylyania, where he cultivates a large farm of over 300 acres of land, nearly the whole of which is in grass, and he is the renter from the plaintiffs at an annual rent of $20, of,a farmer’s stall in the western moiety of the High street market between Delaware Seventh and Eighth streets in the city of Philadelphia. On the 16th day of September 1843, he sold beef from his said stall. It is agreed that the bullock in question, the meat of which the defendant then exposed for sale, was not calved on the defendant’s farm, but was purchased by him in Chester county 13 months ago, in a poor and lean condition, and then totally unfit to be slaughtered for the market; that the defendant did, from the time of his purchase of the said bullock, keep, feed and fatten him on his said farm and on the produce of his said farm, until the 15th day of September 1843, when he was slaughtered by the defendant on his said farm, being then in a fat condition; that the defendant then brought the meat in question to the city and sold it from his said stall as a part of the produce of his said farm.</p> <p>If the court shall be of opinion that the ordinance of the city of Philadelphia of the 28th May 1835, entitled “A supplement toan ordinance relating to markets,” is legal and constitutional, and that the defendant has violated the law of the land in selling the beef, then judgment to be entered against him for six dollars, the penalty and costs ; if otherwise, then judgment to be entered for the defendant.</p> <p>The following are the Acts of Assembly referred to in this case:</p> <p>Act of March 23, 1786. — An act to empower the wardens of the city of Philadelphia to extend the market-houses in High street, from Third street to Fourth street, from Delaware river, and to continue the same from time to time westwardly, from one street to another, in the middle of High street, as the wardens of the said city shall think necessary, and for other purposes therein mentioned. 2 Smith 272.</p> <p>Whereas the inhabitants of the city of Philadelphia and the counties bordering thereon, have represented to this house the necessity there is of extending the market-house in High street, westward, in the city of Philadelphia, that the old market-house was become by far too small for the accommodation of the people from the different parts of the country, who are often exposed to the inclemency of the weather, without shelter, in rain or snow, to the great danger of their health, and inconveniency of the inhabitants of the said city, and that custom and long usage have fixed High street as the most eligible -and central place for the market-house to be continued.</p> <p>2. That from and after the passing of this Act, it shall and may be lawful to and for the [wardens] of the city of Philadelphia, or a majority of them, and they are hereby enjoined and required to contract for materials, and employ workmen to build and extend the market-house in High street, along the middle thereof, from Third street to Fourth street, within the present or the next succeeding year, and so on from time to time, as necessity or occasion shall require, to extend the market-house in High street, from street to street, westward, as often as the [wardens] of the said city,- or a majority of them, shall, think proper, for the benefit and advantage of the inhabitants of the said city, and for the accommodation of the country people bringing provisions to market for sale.</p> <p>3. And in order to afford a convenient opportunity for the turning of wagons and other carriages, Be it further enacted, That the first shambles or market-house, as it shall or may be extended in all or any of the said High street, shall not approach or be continued nearer than 30 feet to the line or lines of any of the streets crossing the aforesaid High street. -</p> <p>4. And in order that those' who attend the said market with herbage and vegetables, may be accommodated with a more convenient shelter under the eaves thereof, as well as to afford a wider space for the passage of carriages, Be it further enacted, That the width or breadth of the said shambles or market-house shall not be more than 18 feet, from the ou,tside of any one pier or column thereof to the outside of any other; pier, or column of and opposite to the same; and that the roof'of the said shambles or market-house shall have the same elevation and projection with that already erected, and no more.</p> <p>8. When the market-house shall be finished and completed, the one-half of the building so erected, shall be and remain free for the country people attending the said market for ever, and that no fees, tolls or perquisites, be demande^ or exacted from them for the use thereof. And the wardens of the city of Philadelphia are authorized to let or demise the stalls which they may erect in the other half of the said building, to~aay person or persons, for such yearly rents and reservations as shall be agreed upon; and the rent arising from such stalls shall be paid to the treasurer of the wardens of the city of Philadelphia, for the time being, for the use of the said city, and for no other purpose whatsoever.</p> <p>Act of February 12, 1795. — A supplement to the Act, entitled, “An Act to empower the wardens of the city of Philadelphia, to extend the market-house in Pligh street, from Third street to Fourth street, from Delaware river, and to continue the same from time to time westwardly, from one street to another, in the middle of High street, as the wardens of the said city shall think necessary, and for other purposes therein mentioned.” 3 Smith 197.</p> <p>Whereas, by an Act passed the 23d March 1786, it was enacted, That when the market-house in the city of Philadelphia, in and by the said Act directed to be built, should be finished and completed, one-half of the said buildings should be and remain free for the country people attending the said market for ever: And whereas the mayor, &c. of Philadelphia, by an ordinance made on the 8th day of June 1789, did, in pursuance of the views of the Legislature, ordain that the western moiety of the said market-house should be for the use of the inhabitants of the country, as provided for by the Act of Assembly above-mentioned: And whereas the intentions of the Legislature appear likely to be frustrated, by the intrusion of persons of a different description from those originally intended to be thus provided for:</p> <p>1. Be it enacted, That from and after the passing of this Act, it shall not be lawful for any person whatever, to sell any beef in the western moiety of the market-house or shambles in High street, between Third street and Fourth street, in the city of Philadelphia ; nor for any person exercising the trade of a butcher or victualler, to occupy any stall or sell any meat of any kind, within the said western moiety of the market-house or shambles aforesaid.</p> <p>2. The mayor, &c., of Philadelphia shall have power to make and enforce such by-laws, rules and ordinances, as may be found expedient for the purpose of carrying this Act into execution, conformably to the true intent and meaning thereof.</p> <p>3. The mayor, &c., of Philadelphia, in common council assembled, are hereby authorized to assess, levy and collect, from the inhabitants of the said city, and upon all estates real and personal and. taxables, within the same, such sum or sums of money as they may deem necessary, to enable them to extend the market in High street, whenever they may think proper so to do; which taxes shall be levied and collected in the same manner as the city taxes are.</p> <p>4. When the market shall be so extended, one-half of the buildings erected shall be and remain free for the country people bringing the produce of their farms to market, for ever, and agreeable to what is directed by the first section of this Act; and that no fees, tolls or perquisites be demanded or exacted from them, for the use thereof.</p> <p>Act of March 19, 1804. — An Act to authorize the select and common councils of the city of Philadelphia, to erect market-houses in the said city. 4 Smith 165.</p> <p>1. From and after the 1st day of November next, it shall and may be lawful for the select and common councils of the city of Philadelphia, to cause a market-house or market-houses to be erected, at such place or places within the said city, as to them may appear most conducive to the interest and convenience of the citizens thereof, and others who may have occasion to use the same; and to make such regulations for the government of the said market, as to them shall appear useful and necessary, and not inconsistent with the existing laws of this Commonwealth; Provided, that one-half of the buildings so erected, shall be and remain free for the use of the country people attending the said market, and that no fees, tolls or perquisites shall be demanded or exacted from them, for the use thereof.</p> <p>Act of March 19, 1810. — An. additional supplement to the Act, entitled, “An Act to empower the wardens of the city of Philadelphia, to extend the market-house in High street.” 5 Smith 118.</p> <p>1. It shall and may be lawful for the corporation of the city of Philadelphia, when, and as often as they shall think proper, to extend the market-house in High street or elsewhere, in the said city, to build a market-house or houses, to let or demise the one-half of the stalls which they may erect to such persons from the country, as send or carry the produce of their farms to the said market, and to no others, and to let-’the other half of the stalls so erected, at their own discretion, to such person or persons, butchers or victuallers, as to them it may seem proper; any law, usage or custom to the contrary notwithstanding.</p> <p>2. Whenever the market-houses in High street shall be extended, it shall not be lawful for any victualler to sell any beef in the western moiety of any market-house or shambles that may be erected at any time hereafter in High street; but the western moiety shall be let to such persons from the country who send or carry the produce of their farms to market, and to no others; and the one-half of the stalls that may be erected elsewhere, shall also be let to such persons from the country, who send or carry the produce of their farms to market, and to no others : Provided, that the annual rent so to be charged and received, shall not exceed $20 per stall.</p> <p>The court, after argument, rendered judgment for the defendant, which was now assigned for ¡error.</p>

THIS was an appeal by Alexander Mode and Jane Johnson, Jun., from the decree of the Court of Common Pleas of Chester county, distributing money in court arising from the sale of real estate by the sheriff under writs of execution.

Assumpsit for money had and received, money paid and advanced and on an account stated, by Isaac E. Davis and others under the name and style of the Shipley Benevolent Society of the Northern Liberties of Philadelphia, against the Bank o'f the Northern Liberties. The defendants pleaded non assumpsit and payment. The plaintiffs called Alexander P. Milnor, who testified that he w'as first teller of the bank, and was appointed in November 1839.

This was an ejectment for a messuage and two acres of land in White-marsh township, brought by John Katz, trustee of John Scheetz, an insolvent debtor, against Jonathan Timbers and Mary Ann his wife, late Mary Ann Scheetz, in which a verdict and judgment were rendered for the plaintiff below. Both parties claimed under the title of Nicholas Freas.

The plaintiffs, Hennessy and others, had obtained a judgment against John Knox, James Boggs and James A. Knox, trading as Knox, Boggs & Co., and issued an attachment of execution, which was levied on funds in the hands of the Western Bank of Philadelphia, deposited there by William Wilson and David Knox, assignees of Knox, Boggs & Qo., or their attorney.

Commonwealth against William Moore. This was an action of debt on a recognizance entered into before a justice of the peace by the defendant and Michael Moore, for the appearance of Michael at the next court of Quarter Sessions of the Peace to be held for the county of Montgomery, to answer a charge of larceny. The recognizance had been returned' to the office of the clerk of the Quarter Sessions and filed, and an entry of its forfeiture appeared on the docket.

Bender against Ann Leeds for a house and lot in Duke street between Front and Second streets, in which the plaintiff below recovered a verdict and judgment. The facts sufficiently appear in the opinion of this court.

It was an action brought by Lydia Hart against Sarah son and the children of John Hart, deceased, to recover the difference between one third and one half, or one sixth of certain premises conveyed by Mrs De Brahm to Mrs H. Speakman and John Hart and Lydia his wife by deed dated 6th May 1800, to hold to them and their heirs and assigns as tenants in common and not as joint tenants.

THIS case was tried at JVisi Prius in February 1843 before Mr Justice Kennedy, and a verdict and judgment were rendered for the plaintiff. It was an action of trespass brought by Josias W. Dallam against Sheriff Fitler, for seizing and selling certain- household goods belonging to the plaintiff. On the 9th August 1839 Charles T. Ruete made a general assignment to Anthony Elton, in trust to pay creditors, which was recorded on the same day.

THIS was an appeal by Benjamin Green & Son from the decree of the Court of Common Pleas of Northampton county, distributing money in court. A judgment was entered up in that court on a bond and warrant of attorney by Philip Sholl against Reuben L. Seip on the 26th March 1836, No. 169 of January term 1836, and revived by agreement dated and filed March 26th 1841, No. 139 of January term 1841.

■ ERROR to the District Court for the city and county of Philadelphia. This was an action of trover and conversion brought by Thomas Read, assignee of Thomas Amies, against Samuel L. Robinson, executor of Amies. The plaintiff offered in evidence a general assignment by Thomas Amies and wife of all his estate and effects to Joseph M. Thomas in trust for the benefit of creditors, dated 28th May 1839, and recorded 25th June 1839.

William H. Morgan against David Moody. Case stated. Elijah Gleason, Jr., rented from the plaintiff the store and premises No. 279 Market Street, on the 10th October 1842 for the sum of $800 per annum, payable quarterly.

The declaration complained that “ Samuel Weinberger minding and most wickedly intending him, the said Peter, most unjustly to damnify, oppress and impoverish, at a Court of General Quarter Sessions, held for Bucks county aforesaid, at the Court House in Doylestown, in said county, the 10th day of December 1839, before John Fox, Esquire, President Judge, and his Associates, the justices of the said court, the peace in the county aforesaid to keep, and divers felonies and…

THIS was a writ of error to the District Court for the city and county of Philadelphia, in which an ejectment was brought by Daniel Man, Jr., against Francis M. Drexel, to recover a lot of ground in the district of Kensington, and 40 two story houses erected thereon, and a verdict and judgment rendered for the plaintiff.

The plaintiffs, Samuel Jacobs & Robert W. Cushman, complained in the first count of their declaration, which was for goods sold and delivered, that “ Michael Featherstone and Hannah his wife, (which said Hannah doth merchandise and trade with merchandise in the art of a dry-goods shopkeeper, according to the custom of feme sole trading), were attached to answer Samuel Jacobs & Robert W. Cushman of a plea of trespass upon the case, &c. For that whereas the said Hannah (then''…

The plaintiffs offered in evidence their book of original entries, in which a number of items were charged to the defendant to the amount of $41.95j: the first and last of which were as follows: 12 ps. I Parlour paper . ] 11¿ ps. 1 a 60cts. I $6.90 Hanging 5-f-ps. border 50 2.83§. The other items were entered in a similar way, but differing in price and quality.

<p>ERROR to the Common Pleas of Bucks county.</p> <p>Assumpsit by the Trustees of the Union Academy of Doylestown, against John Fox, Esqr. .The case appears in the opinion of this court.</p>

<p>ERROR to the District Court for the city and county of Philadelphia.</p> <p>Assumpsit for goods sold and delivered brought by Daniel Wells against Hugh Scott to recover the value of a raft of boards, which the plaintiff alleged he had sold and delivered to the defendant, in which a verdict and judgment were rendered for the plaintiff.</p> <p>C. C. P. Eldred, a witness for the plaintiff, stated that in May 1833 Samuel Tustin, as the agent of the defendant, bought a raft of boards belonging to the plaintiff at $12 per 1000 feet, at Richmond on the Delaware, and took it up the Schuylkill at his own expense and risk, employing George Snyder to carry it round, who landed it on the east side of the Schuylkill. The terms of sale were cash. Snyder started on the 8th June arid landed it on the 12th. On Monday the 17th the witness and Tustin went to Scott’s house, when Tustin told Scott he had bought a raft for him and the price, and he appeared satisfied. Witness then remarked that the raft did not lay very safe, when the defendant said he would send his hands and have it secured with ropes. The defendant proposed to make an estimate of the number of feet, and the 19th was appointed to make it. The defendant sent one Sorber to the raft to make the estimate, who made out 33,500 feet, which was less than the witness thought there was. The witness afterwards met the defendant at Kittinger’s in Fourth street, and offered to take pay for 34,000 feet. Tustin was not present. The defendant offered to pay for 33,500 feet, which the witness refused, saying he would rather have it counted, but offered at 33,750 feet, which the defendant refused. They then appointed Friday the 21st to have it counted. Witness attended at the time and waited two hours, but no one came on behalf of the defendant. On the 10th or 11th July he saw the defendant, who said the raft was gone, that he had considered it his until they differed about the calculation. Witness put the defendant’s name with red chalk on several parts of the raft.</p> <p>Another witness for the plaintiff testified to the purchase; and Snyder proved that Eldred showed him the raft to be taken round to the Schuylkill for the defendant, which he did and directed it to be secured, and that the defendant’s name was on it.</p> <p>Tustin testified he was employed by the defendant, and agreed for the raft with Eldred at $12 per 1000 feet, telling him it was going round to the Schuylkill. Witness then engaged Snyder, who took it. On Snyder’s return, witness and Eldred called on the defendant and told him, and he was satisfied, and they were to estimate it if they could agree on the amount; if not, to count it; and they agreed to meet for that purpose on the raft the next day but one. Eldred said he did not think it safe where it was; he thought it ought to be attended to. The defendant said he would send ropes down by his hands to secure it. Witness and Eldred went at the time appointed and found Sorber there but not the defendant: they could not find him. Some two or three weeks after, the defendant asked Eldred whether they did not disagree about the estimate. Eldred said “ yes.” The defendant said that was all he wanted — that cleared him. Witness believed it was the uniform rule the raft was at the purchaser’s cost and risk, and was transported at the purchaser’s expense. The hands that bring it down are generally discharged at Richmond as soon as it is made fast. He bought this by the 1000 feet. They were generally bought to be supposed at so much, if they agreed. Snyder took the raft round for him.</p> <p>For the defendant, Sorber testified to Tustin’s saying to the defendant he had left the raft at Spruce street wharf, with which the defendant found fault, saying Harding’s w'harf on the west side of Schuylkill was the place. They then agreed to estimate it and appointed Wednesday. The witness was to estimate for the defendant. He found the raft near Arch street; they met and differed 1000 feet; witness told the defendant there were 33,000 feet; Eldred said 34,000. The defendant offered $402 to settle; Eldred refused. The defendant said the raft was not at Harding’s where he wanted it. Eldred said he would take it there the next day but one and count it out, and the defendant agreed to meet. On Friday there was an unusually heavy freshet in the Schuylkill.</p> <p>Daniel Thomas proved the conversation at ICittinger’s and offer of $402 or $404, which Eldred refused, saying he would have the raft measured or counted — he thought it would measure more. Then said the defendant, “Will you fetch it to Harding’s wharf and we will have it counted?” Eldred said he would. They agreed to meet on the next day but one to count. The defendant appeared to make it a condition it should be delivered at Harding’s, because it would be free of expense and he could take it away in his own boats.</p> <p>Eldred’s competency was objected to by the defendant on the ground that he was interested in procuring a recovery in order to relieve himself from an alleged responsibility to the plaintiff as his agent. But the court overruled the objection and sealed a bill of exceptions.</p> <p>The defendant requested instruction to the jury on the follow^ ing points:</p> <p>1. If they shall be of opinion that the amount of lumber in the raft was not ascertained at the time of the freshet; that this was owing to a disagreement as to that,amount between the parties; and that the defendant did not by any act of his own prevent such ascertainment; then the property was not changed; it remained the property of Wells and was at his risk.</p> <p>2. If the sale was made for cash, and'the amount of money to be paid, was not ascertained, there could be no change of property.</p> <p>3. If the jury shall be of opinion that' the defendant did not claim the property, and that Eldred did not consider himself to have parted with the property before payment, then the property was not changed and the loss must fall upon Wells.</p> <p>4. If the sale was for cash, and that fact was communicated to the person who made the bargain on behalf of the defendant, then the property was not changed until the price to be paid was ascertained and paid.</p> <p>5. If the jury shall be of opinion that after the raft was taken to the Schuylkill, Eldred did engage and undertake to transport it to Harding’s wharf, and before he did so the freshet swept it away, then the loss must fall upon Wells.</p> <p>6. If the jury believe the testimony of Thomas as to the facts which occurred at Kittinger’s tavern, then those facts as detailed in his deposition amount to proof that no change of property had taken place.</p> <p>7. It is a rule of law, binding on court and jury, that if an unimpeached witness swears directly to a fact and is not contradicted, that fact must be taken to be proved and cannot be disregarded.</p> <p>8. That it was competent to Eldred, and within his agency, when he found there was a disagreement as to amount, to reassert ownership over his principal’s property; and if the jury shall be s of opinion that he did so, either at Kittinger’s or by his undertaking to transport the raft to Harding’s, then the raft remained at his risk.</p> <p>The court (Jones, J.) charged as follows:</p> <p>This is an action for goods sold and delivered. The plaintiff alleges that he sold to the defendant a raft of boards in the spring of 1833. Both parties, it is said, acted by agents. The plaintiff employed Eldred as his agent to sell the raft, and the defendant employed Tustin to buy a raft for him. And the plaintiff says that the defendant’s agent came to his agent at Richmond and bought from him the raft in question, which, he says, was then and there delivered by Eldred to Tustin, and that Tustin employed Snyder to take it round into the river'Schuylkill. The defendant denies that there was any sale and delivery of the raft, and this is the whole question. Whether there was a sale and delivery of the raft, is a question of fact to be decided by the jury upon the evidence. The importance of the question arises chiefly from the fact, that soon after the raft came into the river Schuylkill, it was swept away by a freshet. The question, who is to bear the loss, depends upon the question of property. If Wells owned the raft when it was swept away, he must bear the loss ; if Scott owned it, he must bear the loss. But the question of property depends upon the question of sale and delivery of the raft, and that question, as I have said, is a question of fact depending upon the evidence.</p> <p>But before calling your attention to the evidence, it will not be improper to say a few words about the law touching the bargain and sale of goods. If the owner of goods sells them for cash, he has a right to keep them till the price is paid or tendered to him; if the purchaser wants to get possession of the goods he has bought, he must pay or offer to pay the price of them; and the seller, if he wants to bring an action of debt for the price, must deliver the goods or offer to deliver them; so that each party has the right to compel the other to perform his part of the contract, by first performing or offering to perform his own part of it. But in the case supposed, the effect of the bargain is to change the property from the seller to the buyer; and, if the property is afterwards destroyed, the loss falls upon the buyer and not on the seller. It is another principle that when goods are sold for money, if the purchaser by agreement takes the goods bought into his possession, though no money is paid or earnest given or day fixed for the payment of the price, still it is a good bargain and sale of the goods, and the property in them passes from the seller to the buyer, and the seller may sue the buyer for the money. But if a man sells goods for cash, though he cannot be compelled to deliver them before payment of the price, yet he may deliver them, if he chooses, and then bring an action for the price; or if the buyer of goods, upon a cash sale, procures the delivery of them by fraudulent means, although the seller may, if he chooses, reclaim the goods on the ground of the fraud, yet he may treat it, if he choose to do so, as an ordinary and fair sale and delivery of the goods and sue for the price of them.</p> <p>There can be no difficulty then in this case, if the evidence proves an actual sale and delivering of the raft by the plaintiff to the defendant at Richmond. It is agreed, that if there was a sale at all, it was a sale .for cash. The plaintiff was not obliged to deliver the raft till he w’as paid; but if he chose to do so, the defendant cannot complain that the plaintiff gave up one of his rights. But the defendant denies that there was a sale or delivery of the raft. As he alleges, they were still negotiating the contract, and had not actually concluded it when the raft was carried away by the freshet. Some facts touching this question are not disputed on either side. Tustin (the agent of the defendant) and Eldred (the agent of the plaintiff) had agreed upon the price. The price was $12 per M feet; but they had not counted the lumber, nor had they agreed upon the quantity at which the raft should be estimated. After the price per M feet had been agreed on, Snyder took the raft from Richmond round into the Schuylkill river, and left it at a place between Arch and Race streets. After the raft had been taken into the Schuylkill, Eldred, the agent of the plaintiff, and the defendant and Tustin had an interview or interviews relative to fixing upon the quantity; but they differed about it and never did agree.</p> <p>The first question, then, is, whether it was indispensable to the completion of the contract of sale, that the quantity of the lumber should be estimated or counted before the bargain and sale of it was complete? It is argued upon the part of the defendant, that, until this was done, the bargain was not closed, and consequently that the raft was the plaintiff’s when it was lost. This is put to the court as a question of law. If the law on this point be as the defendant contends, it rules the case in his favour, as there can be no question about the fact that the quantity was not ascertained, either by an agreed estimation or by counting. But parties have the power to make a bargain and sale of goods so as to pass the property in them by the actual delivery thereof, without first-fixing the quantity upon which the price is to be computed. They may agree that the quantity shall be ascertained after they come to the possession of the purchaser. A consideration, it is true, is indispensable to the validity of a contract; yet the parties are at liberty to make the terms of their contract few or many. In this case, the promise of the defendant, through his agent, Tustin, to pay for the lumber at the rate of $12 per M feet, was the consideration of the contract of sale.</p> <p>The question is, whether the parties had agreed upon all the terms and done all the things which they intended should enter into the contract and be preliminary to the transfer of the property of the raft: and this is a question of fact. If the meaning of the parties was, that the raft should remain the property of the plaintiff till the lumber was counted or an estimation agreed upon, the contract was executory and the raft continued to be the property of the plaintiff. But if the meaning of the parties was that the property in the raft should vest in the defendant immediately, at the rate agreed on, and the quantity be ascertained afterwards, in that case the raft did become the property of Scott immediately. The meaning of the parties must be ascertained from what they said and did; and the most direct evidence you have in this case is the testimony of the two agents. Eldred says that Tustin bought the raft at Richmond for Scott, took it out of his possession and took it up the Schuylkill at their own expense and risk. Tustin says, it was a day or two before he and Eldred agreed on the price. He says, he offered $12 per M, and “ he (Eldred) agreed to take it, and I closed with him at $12.” He also says, afterwards he told Scott he had bought a raft for him, and Scott appeared satisfied. Eldred says, Snyder was employed by Tustin to carry it round to Scott. Tustin says, he engaged Snyder to run it round for Scott. Snyder don’t recollect who first called on him.</p> <p>This is the substance of the evidence relative to the fact of the sale and delivery, and all this took place before the Sth day of June; because on that day Snyder started with his raft. The raft was not landed till the 12th, and Eldred and Tustin did not call on Scott till the 17th June. Does the evidence of Eldred and Tustin prove an actual sale of the raft, or was it a mere negotiation about a sale ? Does this evidence also prove the delivery of the raft ? In whose employ was Snyder ? For whom had Snyder the possession of the raft? If Eldred had agreed to deliver the raft in the Schuylkill, and had employed Snyder to take it round, it would have shown conclusively that the raft was not delivered. But if Tustin employed Snyder to take it round on behalf of Mr Scott, it is evidence to show that Tustin had already taken possession in behalf of Scott. If you should think the raft was delivered, it would be evidence that the bargain for the raft was closed between the parties. The delivery is generally the act which consummates the contract, though the parties may agree upon something to be done after the delivery. But the object of a delivery, ordinarily, is to join the actual possession to the right of property. If the seller, therefore, do not design to part with his right of property, it would be singular that he should part with the possession of it; and if the purchaser does not suppose he has acquired the right of property by the contract, it would be singular that he should take the possession. Without, therefore, saying that the delivery is conclusive evidence that the bargain was closed and understood to be closed, I put it to you as evidence very pertinent and forcible to that fact.</p> <p>The plaintiff also relies upon certain declarations of the defendant to prove the property was sold and delivered to him. Eldred and Tustin both testify that upon Scott’s being informed by Eldred where the raft was, and that he did not think it safe, Scott said, he could or would send down and secure the raft with ropes. The plaintiff contends that this was treating the raft as his own; that if it was still in the possession of Eldred as the property of Wells, Scott would not have concerned himself about its safety. Scott might have done such a thing as a neighbourly or friendly act; but whether that was his motive, or whether he considered it his property and that he was bound to look after it, is for the jury to consider. Another circumstance relied on, is the declaration of Scott, in a conversation with Eldred, that he (Scott) considered it his raft till they differed about the estimate; and this may account for his saying he would send ropes to secure it. The argument is, that if the property was Scott’s, it became such by the sale and delivery, and a disagreement about the quantity after-wards could not annul the sale and delivery, if it was already perfect. What the parties believe about their rights is not always conclusive of what their rights are: they may be mistaken as to their rights, and where all the facts of the case are clear, the law will decide what the rights of the parties are, and sometimes against their own opinions. Still, where it is not quite clear what the facts are, what the parties believed about their respective rights is proper evidence to be considered by a jury upon the question. It is evidence of what they understood the contract to be.</p> <p>The defendant urges an argument of the same sort against the plaintiff. After the raft had been landed in the Schuylkill, above Arch street, Eldred, at an interview with Scott, promised to take the raft to Harding’s wharf. Eldred says, he does not recollect it, but Thomas swears that he did, and that Scott made it a condition precedent. Why did Eldred agree to do this, unless he regarded the contract as incomplete and the property as still his ? Why should he incur the trouble and expense of employing hands to take the raft to another place, if he was not bound to deliver it to Scott at that place ? This is an argument of the same nature that the plaintiff urges from the circumstance that Scott said he would send men to secure the raft with ropes, and both are very proper to be considered by you. If Snyder was the sub-agent of Scott to take possession of the raft for him at Richmond and take it round into the Schuylkill at the risk and expense of Scott, it was the business of Snyder to take it where Scott wanted it; and, if he did not do so, he could not blame Eldred for that; and ány promise of Eldred to take it to another place would be gratuitous. But if Snyder was the sub-agent of Wells, to deliver this raft on the Schuylkill at Harding’s wharf, as a place agreed upon for delivery, then it would follow that a delivery at any other place would be no delivery to Scott, and Eldred was bound to take the raft across to Harding’s wharf. How the fact was you will say. If the sale and delivery were completed at Richmond and Snyder was the sub-agent of Scott, a gratuitous undertaking by Eldred to take the raft from the place where Snyder left it to Harding’s wharf, would not rescind the sale and delivery nor invalidate w'hat had been concluded at Richmond. But the defendant contends, it is not clear who did employ Snyder, and he relies upon what Snyder himself says upon the subject. Snyder don’t recollect who first spoke to him. But Eldred told him that Tustin had bought a raft for Scott, and took him to show it. Snyder says he has not been paid. This is considered by the defendant as in opposition to the testimony of Eldred and Tustin, who agree that Tustin employed him. You will consider the question.</p> <p>Again, the defendant contends that no witness says the lumber was delivered in the Delaware. The defendant, if I recollect the testimony, is correct, if he means merely that no witness says, in words, that the lumber was delivered in the Delaware. Eldred does not say, expressly, he delivered the raft, but he says Tustin bought it for Scott and took it out of his possession and took it up the Schuylkill. Snyder says that Eldred showed him the raft he had sold to Tustin, that was to be taken round to Scott; and, as I have said, both Eldred and Tustin say that Tustin employed Snyder. These circumstances, the plaintiff contends, prove conclusively a delivery. Whether they do or do not, the jury will decide.</p> <p>The defendant also contends that Tustin was not the agent of Scott, except to make the contract for the raft: not to take possession of it and send it round to the Schuylkill, or in fact to do anything more than merely make the contract. It is true, that an agent cannot bind his principal beyond the authority given him; but the principal may ratify an unauthorized contract of his agent. What the extent of Tustin’s authority was, is a question of fact. If he was the agent to buy a raft and receive it upon delivery, and he did buy this raft in question and receive it on delivery; if he afterwards, without authority, employed Snyder to take the raft round to the Schuylkill, it could not prejudice the plaintiff. The evidence upon the subject of authority is the testimony of Norris and the testimony of Tustin at the time he was employed, and his testimony as to what took place between Scott, Tustin and Eldred at the Falls of Schuylkill on the 17th of June, when Tustin told Scott what he had done, and Scott appeared satisfied, and what Scott said as to securing the raft. You will say, upon the whole evidence, whether Tustin exceeded his authority, and whether, if he did, Scott did not ratify and approve all that had been done; or, if not, whether Tustin was not authorized not only to conclude upon the sale, but also to receive the delivery. Or, at the least, whether Tustin had not authority to conclude the contract so as to make it conclusive and binding upon the parties; not merely to negotiate terms of contract to be submitted to Scott and not to be binding until Scott should assent to them. If the authority was merely to negotiate terms to be submitted to Scott, Scott would not be bound till he assented, and then the question would be, whether he did not ratify and agree to the terms when the parties met on the 17th of June?</p> <p>I have now referred to the principal points made in the argument on both sides. It is so purely a question of fact, that further observations seem unnecessary. The action is for the price of goods sold and delivered, and the question is, whether the raft was sold and delivered by the plaintiff to defendant? The most important evidence, as it strikes me, is that which applies to the original transaction between Eldred as agent for plaintiff, and Tustin as agent for defendant. The evidence of Eldred and Tustin applies to this point of time: the other testimony applies to subsequent times. Norris’s testimony applies to an earlier time, when Tustin was employed as agent by Scott. Yet the other evidence is important to be considered, as showing what the parties understood the transaction between them to be.”</p> <p>The defendant then requested the court to charge upon his 8th point, as not having been answered in the charge, and the court further charged the jury, as follows :</p> <p>“ What was the extent of the agency of Eldred is a question of fact. His authority as an agent was not in writing, so far as it appears. It is for the jury to say, therefore, whether he had authority in the case supposed. But an agent who has authority merely to make a contract, has not thereby authority to rescind the contract after he has finally made and concluded it. By concluding the contract his agency is closed. As to the undertaking of Eldred to convey the raft to Harding’s wharf, I have already answered sufficiently. So as to that which happened at Kittinger’s, it is proper to be considered by the jury, but it is not conclusive.”</p> <p>The defendant excepted to the charge, and assigned the following errors:</p> <p>First. Admitting in evidence the deposition of Eldred.</p> <p>Second. In the charge of the court:</p> <p>1. In not answering directly and fully the propositions stated in the first and second points.</p> <p>2. In not instructing the jury that if the quantity of lumber in the raft, and the amount of money to be paid, remained unascertained (without defendant’s fault) at the time of the freshet, the property was not changed.</p> <p>3. In stating it in effect to be the law, that a delivery necessarily worked a change of property.</p> <p>4. In treating the undertaking of Eldred to change the position of the raft (assuming it to have been made) as a gratuitous undertaking, without consideration, inconsistent with an agency to sell, as being the same thing with a rescinding of the contract, and thence deducing the conclusion that the raft did not remain at his risk.</p> <p>5. In not giving the instruction asked in the 6th and in the 8th point.</p> <p>Third. That the award of arbitrators was made by a tribunal of whom but two out of three heard the case throughout, and united in deliberation, although all three heard it in part, and the court refused to set aside the award.</p>

<p>In ejectment, one who is neither party nor privy to the action, though an occupier of the ground in dispute for a time previous to the bringing of the ejectment, cannot be affected by the judgment that may be given in it, and is therefore a competent witness for the plaintiff.</p> <p>Though a recovery for mesne profits cannot be had till possession is recovered, yet a possession gained by the owner’s entry is sufficient without the necessity of an ejectment.</p> <p>If one is applied to as agent to investigate the title of another to a lot which he has an interest in purchasing, and he undertakes' the duty, he cannot use the information thus acquired to the injury of his principal. He is bound to disclose to him any material information obtained concerning the title, and if he conceals it and buys himself, it is a fraud; and he. cannot hold the property without reimbursing to the principal any loss he may sustain by failing in the purchase.</p>

<p>ERROR to the District Court for the city and county of Philadelphia, in which a verdict and judgment were rendered for the plaintiff. It was the same case which is reported in 2 Watts 8f Serg. 548, and the evidence on this second trial was not materially different from that givén on the first. The court charged the jury among other things, that the question was, whether the defendants occupied more of the margin of the road extending along the front of the plaintiff, within the lines of the road, than was necessary to the reasonable and convenient enjoyment of the premises ; and this was the principal question in the case. They also charged that an action of trespass was maintainable.</p> <p>Various errors in these and other points were assigned to the charge. The case was argued by</p>

Assumpsit by John M. Pleiss against Caleb Maulé, in which a verdict and judgment were rendered for the plaintiff. It was brought on two drafts, one for $100, the other for $50, on which there were special counts and the common counts for goods sold and delivered. The defendant, Maulé, had the following draft in his hands: $453.03 Philadelphia, Dec. 15th, 1834.

<p>UPON the petition and affidavit of the plaintiff in error, this court granted a rule upon Judge Stroud, of the District Court for the city and county of Philadelphia, to show cause why a mandamus should not issue to him, commanding him to sign the bill of exceptions tendered to him by the counsel for the plaintiff in error, containing a general exception to the whole of the charge of said Judge, and the charge itself in extenso. On the return of the rule, the learned Judge put in the following answer:</p> <p>This respondent, by protestation, not owning or allowing any of the matters of the petition to be true, as they are therein alleged, but waiving, so far as it is in his power so to do, all and every objection to the jurisdiction of your Honours in respect to the prayer of the petition, shows and offers to the consideration of your Honours,</p> <p>That the District Court for the city and county of Philadelphia is a court of special jurisdiction, constituted by an Act of the General Assembly of this Commonwealth, passed the 28th March 1835, entitled, “An Act to establish the District Court for the city and county of Philadelphia,” whose powers, authorities and proceedings are to be ascertained and regulated by the true intent and meaning of the said Act of Assembly and the several supplements thereto, and by such other general laws only as are necessarily to be implied as binding upon the Judges thereof in common with the suitors and parties and their attorneys, in proceedings lawfully instituted in said court.</p> <p>That the statute of Westminster 2, chap. 31, is the only authority whereby a bill of exceptions is matter of right to be required by any person impleaded before the Judges of the said District Court, and that by the true intent and meaning of said statute, the pretended bill of exceptions, mentioned in the petition, ought not to have been allowed by the respondent, but on the contrary, it was and is his duty to refuse to seal the same.</p> <p>That the statute of Westminster 2, before, and at the time of the settlement of this country by colonists under the charter granted to William Penn, had received a judicial construction, that a bill of exceptions should be taken and allowed only upon some point of law either in admitting or denying evidence, or a challenge, or'some matter of law arising upon facts not denied or sufficiently proved, in which either party had been overruled by the court. This proposition was asserted in the argument of Bridgeman v. Holt, (Show. Parl. Cas. 120), A. D. 1693, as familiar learning in that day, and Sir William Blackstone, (3 Com. 372), and Sir Francis Buller, (Nisi Prius 310), severally make the same statement on this subject.</p> <p>The Supreme Court of the United States, in Ex parte Crane, (5 Peters 190), a case presenting no other matter for adjudication, denied the right of a party to a general exception to the charge of the Judge presiding at the trial, and required a distinct specification of the point or points of law, in the ruling of which the Judge was supposed to have erred. And to impart to this judgment the highest efficacy, the same court shortly afterwards adopted the following rule of court; “ That hereafter the Judges of the Circuit and District Courts do not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law upon any general exception to the whole of such charge; but that the party excepting be required to state distinctly the several matters of law in such charge to which he excepts, and that such matters of law, and those only, be inserted in the bill of exceptions and allowed by the court.”</p> <p>Our sister States have given the highest sanction to the utility and necessity of this doctrine. In at least sixteen of these, express legislation exists, requiring in clear and positive terms, that in bills of exceptions, a specification shall be made of the points of law, in the decision of which the inferior tribunals are alleged to have erred; — thus, at once, embodying the substance of the British statute, and adopting the exposition which the courts of that kingdom had placed upon it. In the remaining States, it is confidently believed that no decision can be adduced, contravening in the slightest degree the received construction of the statute of Westminster, or any intimation of a practice at variance with its requirements. In Connecticut the statute appears to be yet in force, and the same judicial construction has been given to it which it had received before the colonization of the State. Wadsworth v. Sanford, (Kirby 456, A. D. 1788); Watson v. Watson, (10 Connec. 75); Picket v. Allen, (Ibid. 146). In the Supreme Court and in the High Court of Errors and Appeals of New York, the same doctrine is maintained, as may be seen in the opinions of Chancellor Kent in Van Gorden v. Jackson, (5 Johns. 467), and in Frier v. Jackson, (8 Johns. 387), and of Mr Justice Woodworth in Jackson v. Cadwell, (1 Cowen 639), and of Chancellor Walworth in Law v. Merrills, (6 Wend. 274). To the same effect is the decision of the Supreme Court of New Jersey in Coxe v. Field, (1 Green 216), on the statute of that State, which, with a slight verbal addition, is a transcript of the statute of Westminster. And, in short, wherever trial by jury and Courts of Error have a place in the same system of jurisprudence, and the forms of the common law are observed, and a bill of exceptions is the prescribed mode of bringing under revision the proceedings of the inferior tribunal, a specification of the alleged errors in such tribunal has been, it is believed, always deemed an essential requirement at the hands of the complaining party.</p> <p>The respondent submits to the consideration of your Honours, that to the generality of this remark the decisions of our own courts furnish no exception, although it is freely admitted that, in regard to bills of exceptions, as well as in many other matters, a very loose practice has, to a great extent, obtained, as for example, in Thomas v. Wright, (9 Serg. & Rawle 90), where, it appears, the notes of the evidence of four counsel in the cause, together with the notes of the Judge, were referred to in the bill of exceptions instead of an insertion of the appropriate evidence, or a statement of facts settled by the counsel or court. And our reports furnish traces of very extraordinary pretensions on the part of counsel in regard to the proceedings of inferior courts, in connection with the revising superintendence of this honourable court. Thus, in one case, Stewart v. Huntingdon Bank, (11 Serg. & Rawle 267), it was made the subject of a bill of exceptions, that the Judge refused to suspend the trial of the cause, until the bill of exceptions was drawn up in form and sealed by one of the Judges; and in Munderback v. Lutz, (14 Serg. & Rawle 125), the court was moved for a rule to show cause why a mandamus should not issue, commanding the Judge who had presided on the trial below, to furnish his notes of the evidence, for the purpose of having them transcribed' for the use of counsel in reference to the bill of exceptions, or its substitute, under the Act of 24th February 1806. But no case has yet arisen which required of the revising courts any action or decision directly on this question. On two occasions, at least, we have the opinion of Mr Justice Duncan, concurring in the fullest manner with the construction of the statute of Westminster, already so frequently adverted to; the one in Thomas v. Wright, (9 Serg. Sf Rawle 91); the other in Stafford v. Walker, (12 Ibid. 196). And in Reigart v. Ellmaker, (14 Ibid. 124), this honourable court, consisting then, as now, of five Judges, pronounced, through the late chief justice, an opinion in respect to the construction of the Act of Assembly of the 24th of February 1806, which, it is confidently submitted to vour Honours, is equivalent to a full recognition of the principle which the respondent has asserted in refusing to allow the pretended bill of exceptions, alleged by the petition to have been exhibited and required of him to be allowed.It is there decided, that the true meaning of the Act of Assembly mentioned, was, that when a Judge delivered an opinion on matter of law, he should, if requested, reduce his opinion, with his reasons for it, to writing, and file it of record. This, it is said, in that instance, “ was done, as to several specified points, on which an opinion was requested by the-defendant’s counsel. But this, it seems, was not deemed sufficient. The Judge was requested to reduce his whole charge to the jury to writing, and file it. There is nothing in the Act of Assembly which authorizes such a request, and the Judge was very right in declining to comply with it.” And the reasons which are there assigned by the court, demonstrate, in the most convincing manner, the impropriety of such a requisition, whether under the Act of Assembly which requires the opinion of the Judge to be filed of record, or upon the statute of Westminster, where the matter complained of is to be exhibited through the medium of a bill of exceptions. “ In a charge to the jury,” says the chief justice, “the Judge sums up the evidence and lays it before them, with such observations of his own as he thinks pertinent. I believe no Judge reduces his whole charge to writing before it is given, and, indeed, he could not do it without ruinous delay. And after it is given, it would be impossible for a man of the most tenacious memory to recollect all that he has said on the facts of the cause. And even if it were possible, it would be improper to burthen the record with a quantity of unnecessary matter. It is the business of the counsel who requests an opinion to be filed, to specify it. Several opinions on matter of law may be delivered in one charge. Some of these may be objected to, and some not; but at all events, the Judge should be informed what the opinion is, which he is desired to reduce to writing, &c., and then it is his duty to file that opinion, with his reasons, and no more.”</p> <p>It has never been supposed, so far as is known to the respondent, that the Act of 24th February 1806, imposed restrictions upon a party dissatisfied with the charge of a Judge, which were not applicable to a party under similar circumstances seeking redress through the medium of a bill of exceptions. And relying upon this view of the subject, the respondent would have deemed it altogx> ther superfluous to have done anything else by way of answer to the petition exhibited to your Honours, except to recall the decision in Reigart v. Ellmaker to your Honours’ recollection. But he finds in the fact that your Honours have granted the rule to show cause in this case upon the bald allegation in the petition, that a general exception to the whole charge to the jury in the case of Man v. Drexel was refused, reason to suspect that he has mistaken the import of the decision in Reigart v. Ellmaker, or over-estimated its value, or imagined an analogy, in the purpose of the Act of 24th February 1806, and in that of a bill of exceptions, which does not exist.</p> <p>The respondent, therefore, feels bound tó show to your Honours, that long before the trial of Man v. Drexel, the District Court for the city and county of Philadelphia adopted and promulgated the following rule of court, that is to say: “ Either party excepting to the charge of the court to the jury, shall, before the rendition of the verdict, state distinctly the several matters of law in such charge to which he excepts; and no general exception to the whole of the charge shall be allowed by the court, but the exception's to the matters of law so distinctly stated, and those only shall be allowed in the bill of exceptionsand that this rule was in force at the time of the said trial.</p> <p>And the respondent shows to your Honours, that when, after the charge to the jury in Man v. Drexel had been delivered, the counsel for the said Drexel stated to the respondent, that he excepted to the said charge, the respondent reminded him of the existence of the said rule of court, and informed him that a general exception to the whole charge could not, in consistency with the rule, be taken or allowed, but that it was incumbent on him to specify such part of the instructions to the jury as he supposed to be erroneous in point of law, and that his exception must be restricted to such specification. That thereupon he immediately specified two points upon which he desired to except. That the i-espondent replied, that as to one of these points, it was rightly taken, for it had been ruled as he had stated, and its effect was likely to be adverse to his client, and that this was the only point, it was believed, which had been ruled against the defendant. That in regard to the other point mentioned, he might, if he chose, except to this also; yet it had not been ruled against, but in favour of his client, and that the opposite party had already actually, on that account, taken exception to the ruling on this point, and that it had been allowed. That the said counsel then said he would except to the one point only, and a note thereof was immediately made by the respondent, and it was allowed. The respondent heard nothing more on the subject until near the expiration of the ten days limited by another rule of said court, within which the bill of exceptions was required to be prepared and exhibited to the court. That the respondent apprehending no difficulty in regard to the charge, handed or sent, as is his usual practice, the bill to the opposite counsel, in order that the statement of the evidence might be settled between the counsel. That after a considerable time the bill was returned to the respondent, and he then discovered that an extended statement, purporting to be the entire charge delivered to the jury, had been inserted in the bill, and that an exception had been prepared to the whole charge, without any specification according to the rule of court and the actual transaction on the trial. The bill in this form, the respondent refused to seal, but he copied out with his own hand the point of law which had been excepted to by the defendant’s counsel on the trial: and when some time afterwards he saw one of the counsel for the plaintiff, he handed him the bill, [respondent having corrected the evidence by his notes of the same taken on the trial] that a final comparison might be made by the counsel, and the bill be represented to the respondent in proper form for the sealing thereof by him. It was not until after the lapse of another period of considerable duration that he was informed by the defendant’s counsel that he considered himself entitled of right to a bill of exceptions, containing what he deemed to be the entire charge to the jury, with .a general exception thereto. The respondent refused to allow such a bill, but apprised the counsel that a bill containing the exception as noted at the trial, and which had been written out for the purpose, he was ready to seal at any time when it might be offered to him, and he is now ready and offers to allow and seal the same.</p> <p>The respondent thinks proper further to state, that that which was prepared by the defendant’s counsel as the charge of respondent to the jury, did not correspond with, but was materially different from, the charge which respondent did deliver. That on this point the respondent cannot be mistaken, for although he did not on that occasion, nor has ever at any time, in relation to any trial, reduced to writing the whole matter of his charge, yet from the notes made by him as preparation for such charge, he has no difficulty, aided by his memory, in ascertaining the correctness or inaccuracy of any charge which may be imputed to him.</p> <p>And the respondent shows and offers to the consideration of your Honours, that inasmuch as a Court of Error concerns itself with alleged errors in matter of law in the proceedings of inferior tribunals, and not with the general merits of the controversy between the parties as disclosed by the evidence, the rule of court which requires a specification, on the trial, of the matters of law contained in the charge, to which a party excepts, grants to such party every advantage which is called for by a regard for the interest of such party; and that the only difference between the requirement of such a rule and the allowance of a general exception to the charge has reference to the supposed convenience of the excepting party, and nothing more. For the rule of court adverted to allows any and every matter of law alleged to have been erroneously stated to the jury to be excepted to; and by a rule of your honourable court, the plaintiff in error is required to make a written specification of the particular errors which he assigns, and on which he intends to rely; so that the only difference is whether the party shall make his specification at one time or another.</p> <p>And the respondent shows and offers to your Honours’ consideration, — that in respect to the convenience of counsel as to the point of time at which the exceptions are to be taken, this depends altogether upon the competency of counsel to discharge aright and generally the duty which appertains to the office of an advocate, which he has assumed, and especially upon his fitness and ability to fulfil the trust confided to him in the support or defence of the particular cause which he has undertaken to conduct. That to counsel gifted with the appropriate endowments of mind, and furnished with the requisite legal erudition, the knowledge which, if not possessed before, must be acquired during the trial, of the facts of the cause and the questions of law which thence arise, will enable him to specify, on the conclusion of the charge, the supposed or suspected errors therein more readily than at any future period.</p> <p>And the respondent would further offer to your Honours’ considerations, — that of necessity, from the constitution of a Court of Error, it is imposed upon such court, not unfrequently, to reverse judgments from very small faults in the charge, such as arise from the use of ambiguous language or the statement of a proposition or principle of law too broadly, and the like; whilst, at the same time, it is quite obvious that such minute error has very slight or no bearing at all on the merits of the cause, and in all probability has had no operation in producing the verdict. Faults of this description, when brought to the notice of a court on a motion for a new trial, are usually disregarded. Wakely v. Hart, (6 Binn. 316), is an example of this kind. Being on a motion for a new trial, the error in the charge was deemed unimportant; on a writ of error the judgment must have been reversed. Had the subject of objection been mentioned to the judge before the rendition of the verdict, its force would have been apparent and the mistake corrected, and yet the result of the trial not affected by it. The specification required by the rule of court is calculated to produce and has produced the like beneficial effect. The supposed error, on being pointed out, is at once rectified — the jury properly instructed — unequivocal language substituted for what possibly might mislead — a judicious verdict rendered, and a writ of error saved.</p> <p>The respondent, confiding in the justness and force of the suggestions already made, in conclusion, nevertheless, shows and offers to the consideration of your Honours, that the allowing of a general exception to the charge or the requiring of a specification of the errors alleged, is a matter which concerns the practice of the inferior court, and therefore, upon settled principles well known to your Honours, cannot be the subject of revision at all by a Court of Error. Upon this, as well as upon the other considerations submitted to your Honours, the respondent prays that the rule upon him, founded on the petition of Francis M. Drexel, and granted by your Honours, to show cause why a peremptory mandamus should not issue, commanding the respondent to sign the bill of exceptions tendered to him in the case of Man v. Drexel by the counsel of said Drexel, with the general exception therein set forth, be discharged.</p>

<p>Notice dated Rochester, New York, Dec. 28th, 1841, of protest on that day for non-payment by drawee of a bill of exchange dated at New York, was sent to New York, where it was mailed on 3d January, 1842, and on the 4th was delivered in Philadelphia, where the drawer resided, to a person of the same name, and did not reach the drawer until the 8th. Held sufficient notice to charge the drawer.</p> <p>Reasonableness of notice to the drawer of dishonour of a hill is a question for the court.</p>

<p>ERROR to the District Court for the city and county of Philadelphia, in an action of assumpsit brought by Andrew Brown against James Arrott, in which a verdict and judgment were rendered for the defendant. It was the same case which is reported at large in 6 Whart. 9, by the name of Arrott v. Brown, a verdict having passed in the first trial in favour of the plaintiff, Brown, which was there reversed, and on the second trial the verdict passed for the defendant, Arrott, on which the present writ of error was taken out by the plaintiff, Brown. The facts of the case are fully stated in 6 Whart. 9, and it will only be necessary to report the new evidence given on the present trial.</p> <p>The defendant, with a view to show that there was nothing calculated to excite the defendant’s suspicion in Young’s omission to remit the amount of the sales made in the fall of 1822, proposed to prove by Samuel Comly and others “ that in consignments to commission merchants between the different cities of the United States, and between Philadelphia and Boston, it is not, under ordinary circumstances, the practice to make or require partial remittances of occasional sales made, before closing sales of consignment.” The plaintiff objected to this offer, and contended that it was illegal. The judge decided that when it was reduced into the form of a question to the witness he would allow it.</p> <p>Samuel Comly then testified that he was a commission merchant and had, to a large extent, received and sent goods on commission, to and from other cities of the Union.</p> <p>The defendant then asked the witness, “ From your experience of sales by a commission merchant, is it usual or not to make remittances before closing sales of consignment without special directions to do so?” The question was objected to by the plaintiff, but the objection was overruled by the court, and the plaintiff excepted. The witness then answered, “ It is not usual.”</p> <p>The defendant then asked the witness the following question: “Under ordinary circumstances, do parties consigning goods to a commission merchant require payment of the amount of occasional sales of parts of a consignment before closing sales of the consignment?” This question was also objected to and the'objection overruled by the court, who sealed an exception. The witness then answered : “ Under ordinary circumstances, I think they do not draw for partial sales till the sales are closed.”</p> <p>Question. Is your answer to be understood as applicable to cases in which part of the sale is made in the fall, and part postponed to the spring? (Objected to as before.) Answer. Yes, it is; where there is confidence between the parties it is not usual to draw. Such has been my practice.</p> <p>This witness further testified: “ I have done business with other parts; with New York, Boston, Baltimore and Charleston. I would draw upon them for sales; they would consign to me and draw upon me. Our sales were rendered to each other whenever an invoice was closed. As a general rule, this closing would occupy from one month to two or three or four months. My business here was all on a large scale; and with the houses here, at the eastward, a reciprocal business.”</p> <p>Re-examined. I have also done a considerable business for the neighbouring cotton manufacturers. Sometimes in small amounts.</p> <p>Joseph Cabot testified, under the same exception to his testimony : “ I have been and still am a commission merchant. In my mercantile business have also been in the habit of consigning goods to others for sale. Answering from my experience, it is not customary to remit until sales are closed. I have no doubt about the fact that the custom is to remit only at the close of the sales, unless specially directed to do it. There have been cases where parties wanting money have requested remittances as sales are realized. Under ordinary circumstances I should think, it not customary to do so, (that is, where advances are not asked.) My answer has reference to all sales; would not be excluded by applicability to cases of sales, part in fall and part left for spring. I came to Philadelphia from Boston, in 1815. I had been in business in Boston before I came here.”</p> <p>Cross-examined. (In answer to a special question.) If I had received goods on consignment from abroad, and had advanced on them, and had sent part of those goods elsewhere and had heard of sales of part of those goods, I should have considered it my duty to call in the proceeds at maturity.</p> <p>Re-examined. (In answer to a specific question.) I mean this answer in a case where I had made a special advance on the particular goods.</p> <p>Re-cross-examined. (In answer to a question.) But if I had made a remittance on general account, I should consider the case the same as a special advance, and my duty to call in the funds the same.</p> <p>The defendant offered to read the deposition of David Arrott of New Orleans, merchant, taken Oct. 3, 1828. The plaintiff objected to the following italicised portions of the deposition as illegal testimony. The judge overruled the objection and decided that the parts objected to should be read, and sealed an exception.</p> <p>The deposition was then read as follows: In the month of July 1823, he sailed for Europe from Philadelphia. For six years previously he had lived with the defendant as his clerk, and was intimately acquainted with his concerns. He knew of several consignments to the defendant by the plaintiff in the spring of 1822, and that the defendant sent a part of said goods to Boston, and consigned them to James Young at that place for sale, the market being bad for the goods at Philadelphia. He sent at the same time to Young some of the goods of the plaintiff, and some goods which had been consigned to the defendant by David Lumgair * * # (the part omitted here being objected to by the plaintiff, was not read in evidence,) * * * (verifies the invoices of the goods:) * * * (verifies certain letters from plaintiff to defendant:) * * * On the day of deponent’s departure, or the day before, defendant received an account of sales, but no remittance. That the defendant gave this deponent particular instructions to see the plaintiff, and to inform him of the state of his consignment particularly, and of the sales which had been made at Boston, and gave deponent a short letter of introduction to the plaintiff, and a recommendation to Mr. Brown, of deponent’s house at New Orleans, which was just then established. That shortly after the deponent’s arrival in England, he went to Scotland, and in August or September, 1823, he visited the plaintiff at Dundee, and made him particularly acquainted with the state of his consignment, and of the sales made at Boston. The plaintiff inquired of deponent what prices the goods brought at Boston, and the deponent informed him; a good deal of conversation took place between the plaintiff and the deponent, but the plaintiff made no complaint or objection to the defendant’s having sent the goods to Boston for sale, nor to any other particular of the defendant’s conduct in the management of the business. That the deponent shortly after went to England, and whilst there he received a letter from the plaintiff, inquiring of him if he had heard from his uncle, the defendant, which letter the deponent answered, and in that letter, or verbally in a visit which he shortly afterwards made to Scotland, again he informed the plaintiff that he feared something had happened in Boston, as he heard incidentally from a friend at New York that his uncle had passed hastily through that place on his way to Boston.</p> <p>Cross-examined. — The goods were sent to Boston in April or May 1822. Arrott received no regular account-sales until the sales were about to be closed. Deponent thinks he was advised of sales as they were made, by letter, but no regular account current was forwarded until the close * * * (the part omitted here was not read in evidence, being applicable to that part of the examination in chief which was objected to by the plaintiff and not read.) * * When the deponent was at Dundee, he had no copy of account-sales from Young, and of course showed none to plaintiff. Deponent cannot say how many packages of goods had been sent, or how many he informed plaintiff had been sent. Deponent has not the letter from plaintiff to him; it is now in New Orleans, if in existence. Deponent sailed for Europe the 20th July 1823. About the time deponent went to Europe he had established himself in business, and had left the defendant’s counting-house.</p> <p>Samuel Snelling sworn, (under the same exception to his testimony as in the case of Comly). I am a commission merchant; have been so 15 years. I was in business as a commission merchant in Boston. I began business on my own account 20 years ago. On making partial sales it is not usual to make remittances till sales completed. It ought to be said that the custom varies. My experience has been to make up sales at closing of the invoice. Whether consignor draws depends upon circumstances, as if an agreement. I should think under ordinary circumstances it is not ordinarily done.</p> <p>Cross-examined. — By ordinary circumstances I mean where there is nothing peculiar. There is no custom which would render it improper to draw. If sales unclosed for one year it would depend upon circumstances. There is no custom which would interfere with drawing. We generally render our account sales once in the month. Some of our correspondents desire it at the end of the invoice; some at the close of the season, or once in three months. Heretofore we have been generally in advance to our principals, but latterly have adopted a different rule; our practice was to advance about two-thirds, sometimes more. If we charged interest on advances, and had sent part of the goods elsewhere to be sold, we should stop the charge of interest from the maturity of the sales made by our correspondent. If partial sales made, I should not think it necessary immediately to call for the proceeds, but generally at the close of the season. I should ask for the account sales so as to close up my accounts with my correspondents. Leaving the proceeds in his hands would have a tendency to lessen the average due of the whole. When we send goods to a New York house, we desire them to transmit to us the notes endorsed over for better security. Sundry notes for the amount due as per average due time. This is our late practice ; adopted since commencement of this year. Formerly, when doing business with commission houses, they would draw on us and we on them. The state of the balance between us on general account would regulate the drawing. I should treat the case of a correspondent for a single consignment as I would others under ordinary circumstances.</p> <p>Re-examined. — Would you consider the case of a consignment made in the fall, partial safes in the fall, and the balance of goods sold in the spring as an ordinary case ? It might be a common case. Do you not believe it is a common case 1 I do.</p> <p>Benjamin W. Richards, sw'orn. (Same exception as before.) I have been a commission merchant 20 years and upwards. It is not usual to make remittances before closing invoices, unless there are special agreements or directions. Under ordinary circumstances parties do not require payment before closing sales of invoice. Suppose a consignment to Boston, part sold at fall sales, balance laid over to the spring; my correspondent a foreign house. Such a case I should consider would fall within the general rule, and it would not ordinarily make any difference which party was debtor or creditor. Interest is generally of course among commission merchants.</p> <p>Cross-examined. — If I had written to a Boston correspondent on 23d of May, calling for account sales and remittances, and a month elapsed without reply, I should think he was deviating from the ordinary course of business. I should look for his reply in three or four mails at farthest. I frequently made advances.</p> <p>Re-examined. — Two intermediate letters on my part would be deemed a sufficient urgency.</p> <p>The defendant submitted the following points :</p> <p>I. There is nothing in the evidence that amounts to a guarantee of sales by defendant, and nothing in the declaration that authorizes the plaintiff to recover on the footing of such a guarantee.</p> <p>'2. The guarantee mentioned in the letter of 9th January 1822, is, upon tne proper construction of that letter, referable to the auctioneer’s guarantee, and not to any guarantee by the defendant himself, of either auctioneers or purchasers.</p> <p>3. The defendant is not to be held liable for the debt of Folwell, by reason of having included in one and the same note the amount of this and another sale to Folwell.</p> <p>4. If the defendant did not until June 1824, communicate to plaintiff the fact that this debt had not been paid, the jury are not for this reason to give in damages any greater amount than the loss or injury, if any, wffiich they may believe to have been sustained by reason of the omission to make such communication.</p> <p>5. The correspondence authorized the defendant, if he thought it best for plaintiff’s interest to do so, to send ten of the plaintiff’s 80 bales of goods to Boston, to be sold for plaintiff’s account in that city.</p> <p>6. On this subject and that of the next point, if there are any ambiguities in the plaintiff’s letters, he is not at liberty to take advantage of them, and they are not to be construed in his favour.</p> <p>7. The direction in the letter of 22d May 1822, to take care that the goods should be placed in safe hands, is not to be construed as a stipulation that the defendant should be answerable for the safety or solvency of the party in whose hands he might place them.</p> <p>8. This stipulation only required that the defendant should use reasonable care in the selection of the agent in Boston, in whose hands he might place the goods for sale in that city.</p> <p>9. If the standing and character of Young were then fair in the general estimation of men of business in Boston, the jury are át liberty from this circumstance to presume that the defendant used reasonable and sufficient care in selecting him as .the agent to sell these goods there.</p> <p>10. This would be the case, although it might now appear that a few persons having peculiar and secret means of knowledge, were then aware of circumstances unfavourable to the situation of Young, not known to the community generally.</p> <p>II. The omission of Young to make payment at the maturity of the credit of the amount of any partial sale or sales of which advice may have been given by him to the defendant, does not involve defendant in any liability to the plaintiff, unless the jury believe that this circumstance was a departure from the ordinary course of business, or was reasonably calculated to take away confidence in Young.</p> <p>12. The defendant’s omission to require payment of such partial sales at maturity, does not involve him in any liability to the plaintiff, unless the jury believe that the omission was one which would not under such circumstances have arisen in the case of persons ordinarily attentive to similar business.</p> <p>13. If under the circumstances, persons of ordinary attention to business would at discretion have drawn or not drawn for such partial sales at their maturity, the defendant was at liberty to exercise his discretion upon the subject, and ought not to be held liable for any unforeseen consequences thht may have since resulted from omitting to draw.</p> <p>14. If, after this time, the defendant used all reasonable diligence in the pursuit of Young, and acted throughout according to the best of his judgment, under the advice of counsel, he is not answerable for the debt not having been collected from Young.</p> <p>15. The defendant not having guaranteed any sales made for the plaintiff, and never having rendered any account charging himself with the sales made by Young, until he rendered the account in which they were re-charged to the plaintiff, with information of Young’s failure, is not to be held as having in point of law made Young’s debt his own.</p> <p>16. Although the defendant omitted from the summer or fall of 1823, to the spring of 1824, to communicate to the plaintiff the failure of Young and the situation of this debt, yet his omission to make such communication does not make him liable to the plaintiff for any thing beyond the amount of the actual damage or injury sustained by the plaintiff, if any such damage or injury was sustained in consequence of such omission.</p> <p>17. If the jury believe that he sustained no loss or injury in consequence of the omission to make the communication, and stood in no worse condition than he would have stood in, had there been no such omission, there is no rule of law which makes it binding upon the jury to find a verdict for more than nominal damages.</p> <p>18. The letter of 21st June 1824, from the plaintiff to the defendant, was not such a one as required an answer in order to preclude the legal implication of acquiescence in its contents.</p> <p>The judge charged the jury as follows:</p> <p>The plaintiff claims to recover in this case the sum of $4592.72, which is made up of two items, namely: 1. The difference between the amount for which his goods were sold, as stated in the account current, and the amount actually remitted to him, with interest on this difference, after deducting all the usual charges as stated in that account. 2. The proceeds of the 80 pieces of his goods sold by defendant after that account was rendered, together with interest, after deducting the usual charges. The defendant, on the other hand, contends that he is entitled to be credited in account with the whole of the amount for which certain of these goods were sold by James Young, of Boston, who failed to remit the proceeds to the defendant; that he is entitled also to be credited with certain expenditures incurred and made by him in prosecuting the claim against Young for these proceeds: and that he is entitled also to be credited with the whole amount of Folwcll’s note, which Folwell failed to pay and permitted to be dishonoured. If these pretensions and credits be allowed, he brings the plaintiff in his debt, and claims your certificate for the amount which may thus be found due to him. The plaintiff asserts among other things, that the defendant agreed to guarantee the sales, and refers in proof to a particular part of the correspondence. You' will recollect the argument; but upon this point it seems to me that the parties themselves thought there was no guarantee.</p> <p>There are other questions in the case which require your attention to certain rules of law which govern the relation existing between principal and factor. These rules are as follows: Where a factor is employed to make sale of goods on consignment, he is bound not only to good faith but to reasonable diligence. It is not sufficient that he has been guilty of no fraud, or of such gross negligence as would carry with it the insignia or badges of fraud. He is required to act with reasonable care and prudence in his employment, and exercise his judgment after proper inquiries and precautions. If he shut his eyes against the light, or sell to a person without inquiry, when ordinary diligence (that is, that degree of diligence which persons of common prudence are accustomed to use about their own affairs) would have enabled him to learn The discredit or insolvency of the party, he will not be discharged from responsibility to his principal. Story on Agency 172-174. On the other hand, where the agent has conducted himself according to the usual course of business, and has employed the required diligence in his agency, he will not be responsible for consequences. Story 190. Where the employment of a sub-agent is authorized, he must use the same reasonable diligence in his choice as to the skill and ability of the sub-agent. Story 190. Again, it is the duty of an agent to keep his principal apprised of his doings, and to give him notice within a reasonable time of all such facts and circumstances as may be important to his interests. Story 196.</p> <p>Then the question is presented, do any of these rules apply to the facts before usl As to Young’s debt. Young resided in Boston. The defendant was bound to sell there only, unless he obtained permission to try another market. He relies on the plaintiff’s letter of 22d May 1822, which contained this clause: “ If any of my goods are unsaleable with you, you may send a few bales to Baltimore, or any of the neighbouring cities, if you think it advisable, taking care to put them in safe hands.” On the 22d September 1822, defendant sent on consignment to James Young, of Boston, ten bales of linen goods. It is conceded that the goods were unsaleable here, and that a few bales could be sent to a neighbouring city. It is not denied now that Boston was a neighbouring city; nor that the number, ten bales, were within the authority. Nor is it denied that the letter of 22d May 1822, is not to be construed as containing a stipulation that the defendant should be answerable at all events for the safety or solvency of the party in whose hands he might place the goods. The letter required only reasonable care and diligence in the selection of the person to whom the goods should be sent. Then the question is presented distinctly and fully to the consideration of the jury, whether, in the choice of Young as consignee at Boston, the defendant did or did not use due diligence. He was bound to use that degree of diligence which persons of common prudence are accustomed to use about their own affairs. The outline of the evidence is this. Thompson brought a letter of introduction from Messrs Perkins of Boston. Perit, to whom that letter was presented, introduced him to Arrott. They recognised each other as countrymen and acquaintances. Arrott had Scotch goods consigned to him, on hand. He inquired of Thompson for a fit person to make sale of these goods in Boston. Thompson recommended Young. So far, defendant says, he acted prudently. The plaintiff says, he did not. This is a question for the jury to decide upon. But again, defendant says, that subsequent inquiries show that Thompson’s recommendation of Young v,'as well founded. The plaintiff denies this. Here again the jury must decide. If the jury agree with plaintiff on these points, then Arrott is responsible on this ground for any damage the plaintiff actually sustained by reason of defendant’s want of due diligence in this matter. If the jury agree with the defendant on this point, then the plaintiff is obliged to confine himself to other grounds; namely — the alleged omission of the defendant to give material information, and the alleged want of proper diligence in conducting the business with Young.</p> <p>As to the first, the rule has already been stated to be, “That it is the duty of an agent to keep his principal apprized of his doings, and to give him notice within a reasonable time of all such facts and circumstances as may be important to his interests.” Here the consignment to Young was made in September 1822. No communication of any kind to plaintiff is made until David Arrott’s visit to Dundee in August or September 1823. David Arrott had' then a conversation with the plaintiff, and stated probably all he could recollect without documents before him. But, at that time, it seems fair to conclude, he did not suspect Young’s insolvency; and he certainly did not communicate any grounds of suspicion to Brown. The evidence shows that it was at a subsequent period that his own fears were awakened. The plaintiff says, this communication is unimportant, as to the material matters. The defendant deems it material. This is for the jury. But the plaintiff alleges again, that though in the hurry of his departure in July 1823, from Philadelphia, David Arrott did not notice the difficulties on the face of the account just received from Young, yet that the defendant, on reflection and examination, did, and immediately drew on Young for $1350, at three days’ sight: that in a few days this draft proved Young’s insolvency; and that it was not until the 7th of May 1824, nine months after Young’s insolvency was known to him, that he wrote to the plaintiff, or gave him any notice on the subject. The plaintiff, on receipt of this letter of 7th May 1824, promptly replied by letter of 21st June 1824, stating that he held the defendant responsible for the debt made in Boston. Now it is conceded by the defendant, that he was guilty of an omission of duty here; the rule being, as before stated, that a factor is bound to keep his principal informed of all material occurrences in the agency.</p> <p>The great point of dispute here is the measure of damages. You have heard of former trials of this cause. As you are trying the case with the aid of new light, it would not influence you, I am sure, were I to state what the former jurors did. But as it would do no good, and would be an irregularity, I refrain from referring to their verdicts. As to the law, however, I may make a remark or two. This case was originally tried before the late learned President of this court, Judge Barnes. He stated the law to be, that the jury should determine what amount of damage, if any, a principal actually sustained from want of notice from his agent. Before the same Judge in this court another case, Harvey v. Turner, had also been tried, in which he had laid down the law in the same way, and on facts which he believed brought the two cases within the same class. Harvey v. Turner was taken to the Supreme Court, and reversed. (See 4 Rawle 229.) A rule for a new trial in this case was still pending. Judge Barnes had left the bench; but on hearing what' had been decided on the writ of error in Harvey v. Turner, he took care to inform the Judges of this court, that in his view, the Supreme Court must pronounce his opinion in this case erroneous also, and stated that it was; of course, his desire, as justice demanded a conformity to the doctrines of the Supreme Court, that a new trial should be awarded. The Judges of this court, after a very careful examination of the whole subject, concurred with Judge Barnes, and granted a new trial. The trial took place, and the law was laid down as the late President, and all of the present Judges of this court, supposed that Harvey v. Turner required that it should be laid down. The case was taken to the Supreme Court and reversed.</p> <p>I proceed now to read to the jury the opinion on this branch of the case, of the Supreme Court, as pronounced by the chief justice : “ The general rule certainly is, that for an omission to keep the principal regularly informed of the agent’s transactions, and the state of the interest entrusted to him, the damages are to be proportioned to the actual loss. In Harvey v. Turner, however, on the authority of which the jury received the direction that is now the subject of error, it was ruled, and perhaps for the first time, that where the information transmitted is such as may induce the principal, in the adaptation of his operations to his means, to rely on an outstanding debt as a fund on which he may confidently draw, the agent makes the debt his own. Such is the naked principle of that case, and, as an exception, it is entirely consistent with the general rule asserted in Elliott v. Walker, which has been said to conflict with it. It is undoubtedly an exception; but an exception, which, resting on special circumstances, is as undoubtedly a reasonable and a wholesome one. In that case there was something more, however, than mere want of diligence in the transmission of information. There was negligence preceded by a positive act which had tended to beget a confidence not justified by the event, and which therefore called upon the agent the more imperiously to neglect no opportunity of removing the false impression which his act of commission had contributed to make. The money had been paid over or settled on account without the suggestion of a possibility of reclamation. The agent was the party who sought reimbursement; and it was held that his silence for nine months after he had charged himself with the debt in a rendered account current, had made it his own, the propriety of which it is difficult to doubt. To show by specific evidence a consequential derangement of the principal’s plans, and the exact amount of the loss suffered from it, would require him to expose his whole business, in all its ramifications and minute details: and to sustain it before a foreign tribunal, with all the books and papers of the house properly authenticated or proved, would be intolerably inconvenient if not impracticable. His other business would, in the mean time, be left to regulate itself, and it would be found better, in the end, to have given up the claim, than to have pursued it under so many disadvantages. Nor would a jury be able to estimate, with any degree of precision, the loss incurred from a sacrifice of means in providing for sudden and unexpected responsibilities, and from a consequent relinquishment perhaps of profitable speculations. These are considerations which make it more politic and just that the delinquent factor should, in such circumstances, take the responsibility of the debt and the risk of collecting it, than that the wronged principal should be driven to define the exact amount of his loss by proofs so vexatious and oppressive. Such is the principle of Harvey v. Turner; and do the circumstances of the case at bar fall within it? In respect to Young’s debt, there was nothing to indicate that it might be relied on as a productive source of ready money. Its existence was intimated by an ordinary account of sales, which however intimated not that it might be depended upon as peculiarly available; and there consequently was no positive act productive of the confidence which is supposed to have been disappointed by the event. So far as regards the transmission of information, therefore, the jury had to do with an ordinary case of negligence falling within the general rule; and consequently nothing-of that sort called upon them to givp damages beyond the amount of the loss shown to have been actually suffered.” 6 Wharton 23.</p> <p>Thus you have the general rule stated as it was originally stated in this court; and though Harvey v. Turner is said by the Chief Justice to be a reasonable exception to the general rule, yet it is also said to be an exception 'resting on special circumstances. These special circumstances were not relied on when the decision and its able illustration and argument were given to the profession and to the community for their guidance: and for all practical purposes, as an authority in the law in reference to other cases, Harvey v. Turner is probably to be deemed as overruled. I do not think I misapprehend the intention of the Supreme Court when I make this remark. However, the general rule I state to you in the words of the Chief Justice, speaking the authoritative language of the Supreme Court. ' But there is another portion of the opinion of the Chief Justice which it is proper to bring to your view. He says, “ It may, however, become a grave subject of inquiry before another jury, whether the'defendant’s supineness in suffering the goods to remain with Young after his apparent default in respect to remitting the proceeds of the bales sold at auction, ought not to fix him for the whole. If it turn out that Young failed to do what under the circumstances he was bound to do, it will be the business of the judge to charge that it was the defendant’s duty to take the residue of the goods out of bis bands; and failing to do so, it could not be said that the actual extent of the damage suffered is less than the value of the goods lost by it.”</p> <p>And this brings us to the other ground — a want of proper gence in defendant in conducting the business w'ith Young. He knew of sales of part of the goods in October, at 4 months, coming due in February, 1823. Whether he also knew that sales took place in November is another question. Young stopped payment in July, 1823, and the money had been left in his hands during that time. The defendant, to weaken or destroy the force of this part of the plaintiff’s case, has introduced as witnesses, Comly, Cabot, Snelling and Richards. With a view to show that there was nothing calculated to excite suspicion in Young’s omission to remit the amount of the sales made in the fall'of 1822, it was proposed by the defendant to show by these witnesses, that in consignments to commission merchants between the different cities of the United States and between Philadelphia and Boston, it is not, under ordinary circumstances, the practice to make or require partial remittances of occasional sales made before closing sales of the consignment. The defendant’s counsel contended that, by the testimony, they have accomplished their purpose. The plaintiff denies this, and urges that the defendant is within the very exception put by the witnesses. I refer you to the precise language of the Chief Justice for my charge to you on this branch of the case, and leave the matters of fact for your own decision.</p> <p>Again the plaintiff says, the defendant’s case is defective because, by his omission to give notice, he deprives the plaintiff of all opportunity of exercising any control. What steps Brown might have taken it is too late now to say positively. Could he have learned something of Young? Would he not have directed the prompt collection from Young as credits expired ? Would he not have given authority to compromise, and thus have received his portion of the $600 offered to Arrott, even if nothing had been obtained before that time? The plaintiff says he has had no opportunity of acting on these points; that he is entitled to the benefit of them now, and that it is fair and reasonable to hold the defendant responsible as if the plaintiff had had the opportunity and had done all that is suggested. The jury will decide. I have thus noticed all the points, as far as the court ought to notice them, in reference to Young’s debt.</p> <p>As to Folwell’s debt I have but little to say. The sale to Fol-well was made in June 1822, at 6 months. Was he a proper person to make sale to upon credit? If not, the defendant is responsible. If he was, then on this point no responsibility arises. But if, in relation to this debt, the defendant has incurred responsibility, either by selling to an improper person, or by neglecting to give due notice of material facts: then, under the rule laid down by the Chief Justice, the damages to be awarded are to be in proportion to the damages actually sustained.</p> <p>Another point has been made by the plaintiff for the consideration of the jury. He urges that his letter of the 21st of June 1824, required an answer, and that the omission to answer is an acquiescence in the plaintiff’s claim therein made. Of itself, as a matter of law, it has not been urged that it is to be considered. It is, therefore, for the jury to say whether the conduct of Arrott did or did not show an actual acquiescence. All this is for the jury. The case is now with you.”</p> <p>The plaintiff excepted to the charge. The judge then said, that as he believed he had obeyed the instructions of the Supreme Court, he desired the exception or exceptions to be specified, The plaintiff replied that he wished the Supreme Court to review their opinion given in this case. This request of the judge, and the reply thereto, the plaintiff objected to having inserted in this bill of exceptions, but the defendant insisted on it, and the judge believing it to be proper to do so, inserted the matter in the bill.</p> <p>The judge then also said that a number of written points had been handed to him by the defendant, all of which he believed he had sufficiently answered in the general charge, to which remark the defendant assented. The plaintiff insisting upon having these points annexed to the bill of exceptions, although no exception had been taken by either party to the answers of the court thereto, the judge deemed it his duty to submit them to the judgment of the Supreme Court. If that court should hold that they ought to be a part of the bill of exceptions, then he returned them as a thereof.</p> <p>Errors assigned:</p> <p>I. Ijypcause the judge refused to strike out the two portions, or either af them, of David Arrott’s deposition, objected to by the plaintiff.</p> <p>II. Because the judge received the evidence of Samuel Comly, giving the opinion of the witness upon the merits of this case, and other similar cases, and not in proof of any usage or custom of trade.</p> <p>III. Because the judge received the testimonies of Cabot, Snelling and Richards, upon the same points.</p> <p>IV. Because the judge erred and misdirected the jury—</p> <p>1. In his explanation of the course of the decisions of the Supreme Court in this case and the other cases referred to.</p> <p>2. In referring the testimony of Comly and others to the decision of the jury under the opinion given by C. J. Gibson on a former occasion.</p> <p>3. In leaving it to the jury to determine as a question of fact, whether the plaintiff was entitled to recover his proportion of the $600.</p> <p>4. In leaving the damages in reference to Folwell’s debt to be determined as a question of fact by the jury.</p> <p>5. In not instructing the jury that the defendant was liable for the whole amount of Folwell’s debt, he having mixed it with his other funds and released Folwell without the knowledge of the plaintiff.</p> <p>6. In leaving to the jury to determine whether the silence of the defendant, after the receipt of the plaintiff’s letter of the 21st June 1824, and his omission to answer it, amounted to an acquiescence in its contents.</p> <p>7. Because the judge should have directed the jury that under the circumstances the defendant could not recover back from the plaintiff what he had paid the plaintiff on account of the debt of either Young or Folwell.</p>

and K. Smith brought an action of debt against Winder and M’Lanahan, and declared as follows : “ William H. Winder and Johnston M’Lanahan were summoned to answer John K. Smith and George K. Smith, of a plea that they render unto them the sum of $2500, which to them they owe and from them unjustly detain.

<p>Declarations or admissions of one of several devisees or legatees named in a supposed will, tending to prove that the alleged testator was not of sufficiently sound mind at the time to make it, or being very weak in mind was improperly influenced to make it contrary to what he would otherwise have done, are not admissible on the trial of a feigned issue directed by the Register’s Court to try its validity.</p> <p>Whether made before or after the will, or by one who was a party to the feigned issue, where they may affect others not in privity with him, is not material.</p> <p>Nor is evidence admissible on such issue to prove that the testator some fourteen years before furnished a son with money to buy a farm, so that he would receive more than his share.</p> <p>An account or hook in writing signed by the testator and referred to in the will, is evidence on the issue of devisavit vel non, though it was copied from a paper which was destroyed.</p> <p>Evidence is admissible to show that the holder of a bond of the testator’s produced it at the appraisement of the testator’s effects, and had it inserted in the inventory, and said it had been given to him for collection, to rebut an imputation on his honesty in relation to the bond, which a witness on the other side had testified as proceeding from the testator.</p>

<p>The defendant executed an agreement under seal reciting a bond and mortgage for $4000 from B. to the plaintiffs, by which he covenanted, in case a sheriff’s sale of the mortgaged premises should not satisfy the amount of the bond with interest and costs, over and above all liens, claims and demands, to pay the difference ; and guaranteed the premises free from mechanics’ liens. Appended to the specialty was a parol agreement of same date by the plaintiffs that when and so soon as $750 should be paid them in part satisfaction of the bond, the guaranty should be cancelled, provided sufficient releases of the mechanics’ liens on the premises should be previously given to them. The plaintiffs afterwards sued out the bond, on which the premises were sold for $2000 and distribution made by an auditor of $552.64 for mechanics’ liens, &c. and the balance to the plaintiffs on their mortgage. The plaintiffs brought covenant against the defendant on the specialty to recover the balance of the bond.</p> <p>Held, 1. That covenant was the proper form of action, and that the plaintiffs might give the specialty in evidence without the parol memorandum.</p> <p>2. That the report of the auditor was evidence to show how much was awarded to the plaintiffs.</p> <p>3. That the parol agreement, depending, as it did, on an unperformed condition, was not an obstacle to the plaintiffs’ demand.</p> <p>4. That in such action the defendant might set-off a loss under a policy of insurance on the mortgaged premises executed by the plaintiffs to a third person and assigned by him to the defendant.</p> <p>5. That the want of a direct averment in such plea of interest in the property insured could only be taken advantage of on special demurrer.</p> <p>An unliquidated cross-demand arising from a distinct and independent contract may be set-off.</p>

CHARLES PENEVEYRE petitioned this court, stating that Catharine Hanchman of the city of Philadelphia, widow, by indenture dated the 22d of May 1834, granted and conveyed unto Charles F. Souder, of said city, his heirs and assigns, a certain brick messuage or tenement and lot or piece of ground, situate on the south side of Sassafras street, between Delaware Fifth and Sixth streets, in said city, &c., yielding and paying therefor unto, the said Catharine, her heirs and…

<p>ERROR to the Common Pleas of Philadelphia county.</p> <p>Albertson obtained judgment against Bisbing before a justice of the peace on the 7th June 1841, from which the defendant appealed on the 18th August, and the same day filed an affidavit of defence. On the 4th September a declaration was filed. On the 25th June 1842 judgment was entered for want of a plea on the affidavit of the plaintiff’s counsel that on the 13th May previous he served a notice to plead at the defendant’s counting-house, on persons, as he understood, in the defendant’s employ. On the 9th July a rule was taken to show cause why execution should not be set aside and judgment opened, on the affidavit of the defendant that he never received notice to plead; that he was always ready to plead and had put in an affidavit of defence. This rule was refused.</p> <p>Errors assigned:</p> <p>1. That there was no rule on record in the court below to plead at any time.</p> <p>2. That the proof of a notice to plead by the plaintiff’s counsel was not in accordance with the rule of said court requiring notice to parties required to plead in said court.</p>

<p>ERROR to the Common Pleas of Allegheny county.</p> <p>This was a commission of lunacy taken out against Samuel M’Elroy and a traverse of the inquisition. On the trial the counsel for the traverser presented the following points for the court’s instruction to the jury:</p> <p>1. That the fact of Samuel M’Elroy being under a delusion upon some particular subjects, (if such be the case), is not sufficient to authorize the jury in finding him of unsound mind within the meaning of the Act of Assembly and Constitution of the State.</p> <p>2. That the fact of Samuel M’Elroy being under such delusions in relation to some members of his family, as to lead him to ill treat and abuse them, is not sufficient to justify the jury in finding him of unsound mind as aforesaid.</p> <p>3. That in order to justify such finding, there must be an entire unsoundness of mind, or, in the language of the Supreme Court, he must be “ wholly void of memory and understanding,” and he must be entirely unfit for the management of his estate and for the care of his person.</p> <p>4. That unless the jury believe that the traverser is so wholly deprived of understanding as to render him incapable of entering into any contract, that the law would regard the same as of no validity, and avoid it, in the absence of any proof of fraud or circumvention, their verdict should be for the defendant.</p> <p>5. That if the jury believe, upon the whole evidence, that the mind of the traverser has heretofore and up to this time been sane in reference to the acquisition and transfer of property, and the proper care of it while in his possession, then their verdict must be for the defendant.</p> <p>The relators requested the court to charge the jury: “That if they are satisfied from all the testimony in the cause that the traverser is of unsound mind, and is not capable of the government of himself and his property, they ought to find for the Commonwealth ; and that to constitute unsound mind, it is not necessary that he should be insane on all or any specific number of subjects, or totally destitute of reason and intellect on all subjects.”</p> <p>Patton (President). In England, by the common law, the king, who was parens patrias, political father and guardian of the kingdom, was bound in a more peculiar manner to take care of all those who, by reason of their imbecility and want of understanding, were incapable of taking care of themselves; and by early statutes, the care of the persons and estates of idiots and natural fools, at first, and afterwards of lunatics, was made one of the prerogatives of the crown. The king took the profits of the idiot’s estate to his own use, only allowing the idiot sufficient for the support of himself, and his family, when he had one. But before the king could enter on the lands or take possession of the property of the idiot, it was necessary that an inquisition should be held. For this purpose a commission was granted ,by the Lord Chancellor usually to five commissioners, empowering them to summon an inquest by writ to the sheriff, and inquire if the person be a lunatic, &c. If at the return of the inquisition any persons felt themselves aggrieved, formerly their only remedy was by petition to the king or monstrans de droit, but afterwards, by stat. 2 and 3 Edw. 6, c. 85 and 86, it was provided, that “ if any person be untruly found an idiot or lunatic, every person aggrieved by such office or inquisition shall have their traverse to the same immediately, or after, and proceed to trial thereon, and have like remedy and advantage as in other cases of traverse upon untrue inquisitions or offices found.” In Pennsylvania, the power exercised by the Court of Chancery (in England) over the estates of idiots and lunatics is vested in the Supreme Court, and several Courts of Common Pleas, by the Constitution of the State. This power has since been exercised by these courts in conformity with the practice and usages of the Court of Chancery. By the late Act of the 13th June 1836, the practice has been modified, in some few particulars, as, for instance, “ the commission may issue to only one commissioner,” “ the inquisition may consist of only six members,” &c. The 1st section provides, that every person aggrieved by any inquisition as aforesaid, may traverse the same upon or after the return of the same, and proceed to trial therein, and have like remedy and advantage as in other cases of traverse upon untrue inquisition or office found.</p> <p>In this case an inquisition has been held, finding M’Elroy, a lunatic, a person of unsound mind and incapable of managing his own affairs. He alleges that he has been aggrieved, and traverses the finding; and the question for the jury to determine is, whether he is a person of unsound mind and incapable of governing himself or managing his affairs. In deciding this question, it is important to determine the meaning of the word “ lunatic” under the late Act of Assembly. Until within a few years past, the most correct and comprehensive term used in the law, to include all sorts of mental unsoundness, was the phrase “ non compos mentis,” meaning, says Littleton, of non-sane memory, or, as we would now translate it, “ of unsound mind.” This phrase, says he, is the most sure and legal, and includes all others, whether amens, clemens, furiosus, lunáticos, fatuus, or stultus. Lord Coke also considers non compos mentis not only the legal, but the sure term, and divides it into four softs. 1. An idiot, who from his nativity, by a perpetual infirmity, is non compos mentis. 2. He that by sickness, grief or other accident, wholly loseth his memory or understanding. 3. A lunatic, who hath sometimes his understanding and sometimes not. 4. A drunkard, who by his own vicious act depriveth himself of understanding.</p> <p>The word “ lunatic,” which is now used as a generic term, was not used as such in ancient statutes or proceedings, the phraseology often used being “ persons of unsound mind.” It is derived from luna, and was brought into use through a vulgar error, though one of great antiquity, that persons subject to temporary or chronic insanity, epilepsy, &c. were somehow under the influence of the moon. Hence, even in the Greek, a language more ancient than the Latin, we find this sort of mental derangement or affection taking its name from the moon. A lunatic, therefore, according to former legal phraseology, signified one that had lucid intervals, sometimes not. In the Constitution of Pennsylvania, (Art. 5 § 6), the phrase used as the comprehensive and general one, is non compos mentis. But modern legislation has changed the relative legal philological use of the term lunatic, and has substituted it in the place of the old Latin phrase, non compos mentis. So that now, instead of denoting a species, it is the generic term in legislative technology for all sorts of mental unsound ness. The statutes of 11 Geo. 4, and 1 W. 4, declare that the word “ lunatic” shall extend to any idiot or person of unsound mind, or incapable of managing his affairs. The Act of 1836 uses the word lunatic in the same manner, in place of the old generic term in the common law and the Constitution; and section 67 enacts that the word “ lunatic” in this Act shall be construed to mean and include every person of unsound mind, whether he may have been such from his nativity or have become such from any cause whatever.</p> <p>The jury are therefore to inquire.whether M’Elroy be a person of unsound mind or not; and if they believe him to be a person of unsound mind, it is their duty to say so, no matter from what cause the mental unsoundness proceeds. The existence of insanity is a fact which is best determined through the intervention of a jury. It presents a question which in many cases it is difficult to decide. Insanity exists in an endless variety of shapes and forms and degrees — from raving madness down to the slightest species of monomania. Eccentricity does not amount to insanity. A man may do the most extravagant things; he may recklessly squander his money; his conduct may be the subject of ridicule; he may be addicted to sudden bursts of passion and of harsh treatment towards those whom he should treat with tenderness ; his deportment on a particular occasion may be an outrage upon decency and propriety. All this, if it be the result of eccentricity of character, or of depraved taste, or an unfortunate temper, and does not proceed from a permanent disorganization of the mental faculties, cannot fix upon a man the charge of insanity. Mere imbecility or weakness of mind is not insanity. You often hear the expression applied to a man “ he is a very weak man,” “ he is a man of very weak mind.” Because a man’s mind may be weak compared with the more vigorous intellect of others, he is not therefore insane. Insanity, except in the case of idiots, who labour under a perpetual infirmity from their birth, implies a derangement in some shape or form of the intellect. It cannot be presumed from a single instance of unreasonable behaviour. It is a permanent affection of the mind.</p> <p>3. We have been requested to charge the jury that to justify them in finding M’Elroy a person of unsound mind, they must believe him “ wholly void of memory and understanding,” and entirely unfit for the management of his estate and the care of his person. We are asked to say first, that nothing short of a total deprivation of mind will justify such a finding. We cannot so charge the jury. This is not the law, if the point is to be taken in the literal sense of the words in which it is conveyed. If this were the law, the wholesome operation of proceedings in cases of lunacy would be totally defeated. For there are perhaps but two classes of persons who can be said to be wholly deprived of their understanding. Idiots, or those whose mental fatuity comes with them into the world, form one class. An idiot has been described as a natural fool, or one who has laboured under fatuity from his birth, or one who knows not to tell twenty shillings, nor knows his own age, or who was his father. Another class consists of those who have been in the possession of a sound mind, but are totally deprived of it by some, accident, some dispensation of Providence. You may trace instances of it in cases where the citadel of the mind is taken as it were by storm; where by some sudden calamity, reason is dethroned and madness usurps her place; where the unfortunate victim becomes a raving maniac— sees a deadly foe in every friend — knows not his father, his brother, his wife, or his child from a stranger, and turns against his own person as instruments to mutilate and destroy it, the hands that his Maker has given him for his benefit and protection; or w’hen he becomes, after a life of sanity from his birth, seized with fatuity, and sinks into the listless condition of a natural fool. Such are the classes of persons who can be said to be wholly deprived ,of understanding. Insanity can be easily traced in the idiot and in the raving maniac who.is chained to the floor to save him from himself and to secure those around him from violence.</p> <p>But we have no idea that insanity stops here ; it may extend to persons who are perfectly rational upon several subjects, but labour under a permanent delusion as to one or more. It may be found in a great variety of forms, from monomania or derangement on a single subject, to frantic madness, which involves a total loss of reason, and an entire alienation of the mental faculties. A person may converse with intelligence — he may display more than usual acuteness upon ordinary subjects, and yet in regard to others he may be in a complete state of delusion, and that delusion may be so fixed and permanent that no argument nor persuasion can disturb it. Will it be contended that such a person is free from insanity'! Is it not evident that there is a disorder existing that not only implies insanity itself but is latently undermining the reason and spreading disorganization through the faculties' of the mind ?</p> <p>A sound mind has been held to be one free from all delusion, when all the intellectual faculties exist in the usual and proper degree of harmony and vigour, and when the passions, affections and propensities are under the subordination of the judgment and the will. An unsound mind is marked by delusion. It takes the offspring of its own imagination for realities; it has not a proper perception of the natural connection or repugnancy of ideas. There are no delusions which more fully stamp the mind with the character of unsoundness, than those which are attended with an insensibility to or a perversion of the paramount feelings and dictates of our nature. Delusion manifests itself in a callousness to a just sense of affection. Strong traces of its inroads on the intellect are found, where a man hates without cause those who were formerly most dear to him; when he takes delight in acts of cruelty which are revolting to our nature; when he pertinaciously adheres to some delusive idea, in opposition to the plainest evidence of its falsity; when a man conceives something extravagant to exist, which has in fact no foundation or existence, and adheres to it permanently in spite of all that can be done and said to reason him out of the conceit, then he is the victim of a permanent delusion, and whenever there is such a delusion, there is insanity or unsoundness.of mind.</p> <p>An.insane delusion is exhibited in the belief of facts wdhch no rational person would have believed. This delusion may exist in relation to a great variety of subjects, or it may be confined to one or two. When the delusion is thus limited, its existence is generally confirmed, and' its insane character established by concurring circumstances; by irritability, violence, suspicion, and inconsistency in the mind and conduct of the possessor. It is held that the absence or presence of such permanent delusion on any subject or subjects forms in most cases the true and only test of insanity. Wherever it exists, there is insanity. In some cases the delusion grows, in the first instance out of some slight circumstance, which it broods on and gradually magnifies. In other cases it takes its start in the adoption of some absurd prejudice which has no foundation. It has been decided that where there is a parent who has a child, and that child, who has really done wrong in some particulars, is fancied by him to be “ a fiend and an incarnate devil,” and he permanently acts upon that idea, he is in a state of morbid delusion and insanity. How much more so would he have been considered, had his child’s conduct been perfectly irreproachable. • When the mind labours under this sort of delusion in regard to particular subjects, it is called in the books partial insanity, as distinguished from total insanity, such as idiocy, or raying madness. But this is a distinction which should create no difficulty in the deliberations of the jury. For whether the insanity be total or partial, it is unsoundness of mind within the meaning of the statute. The distinction is more important in the application of the law of insanity to criminal cases. When a man is charged with a crime,- and labours under total insanity, he is so clearly an irresponsible being, that the law does not consider him a fit subject for punishment, and he must be acquitted. Where he labours under an insane delusion in regard to a particular subject, (which is a case of partial insanity), the offence with which he is charged must have a connection with that subject, and must thus seem to have grown out of the delusion itself, or he will be convicted. It was considered unsafe to sanction a different principle in the administration of criminal justice. But'.in civil cases, where a person does an act or makes a contract, and labours under partial insanity at the time, it invalidates the act, though the act have no connection with the delusion which constitutes the partial insanity.</p> <p>But the jury will not confine themselves to the inquiry whether unsoundness of mind exists ; they will also inquire and determine whether it exists to such an extent as to disqualify the traverser from conducting himself with personal safety to himself or others, or from managing and disposing his own affairs; and by affairs is not meant merely his property, his estate, and business transáctions. In the relation of father and husband, he is bound to protect and provide for his wife and children. The fact that a man may not as yet have squandered his property, is no security that he may not do it hereafter. The great object of the proceedings under a commission of lunacy, is to afford that security, and to protect those who look up to the traverser or his estate for protection and support. All the faculties of the mind may become disordered or alienated ; they may not all be so at the same time or in the same degree. Some may remain in apparent full vigour, while the rest are diseased, or some may be affected in a greater and the rest' in a less degree. It is hardly possible to express in words the nice distinctions that mark the boundaries of reason and insanity. However much may have been written on the subject as a matter of science, the common sense of mankind is the best guide in deciding the question of sanity or insanity when presented in a practical form; and it is justly asserted that its decision can receive no great degree of aid from metaphysical speculations.</p> <p>1. A delusion upon particular subjects may be sufficient to authorize the jury to find the traverser of unsound mind. Whether the delusion be of such a character as to demand such a finding, is a question for the jury to determine. Where the delusion is a slight one and perfectly harmless, where there is no prospect or probability of it working harm or injury either to the traverser or his friends, in person or estate,- a jury would not be likely to subject him to such a finding. Take the case of one whose personal vanity has grown into a delusion. He imagines his person the embodiment of beauty and symmetry. He spends hours in graceful attitudes before his glass. When he walks the streets he imagines everybody, and particularly the ladies, look upon him with admiration. The jury could scarcely perceive the necessity of interposing the law, or curtailing his innocent enjoyments by putting him in charge of a committee. But the case is very different where a man labours under a variety of delusions; where, without the least foundation for such a conceit, he fancies at one time a conspiracy to exist against his life amongst the hands and superintendents of the establishment where he is working ; at another a conspiracy against him in the religious congregation of which he is a member; at another that all his own witnesses at the inquisition were whore-masters ; at another that his family physician, a man of the highest character and reputation, has administered to him poisonous pills made of the womb of a dead woman; at another that money belonging to him remains concealed and buried in the earth; at another that his wife, a virtuous and good woman, is guilty of habitual prostitution and of incest with his own son. Delusions like these would justify a jury in pronouncing the patient of unsound mind, if they merely existed in the abstract and were not carried into practical operation. But when they are acted upon; when under these promptings he conceives a hatred for his long-tried and best friends; when he treats his neighbours with unnatural coldness and unfounded suspicion; when, as he passes from church, he thinks he hears his fellow-members whispering about him in words of detraction, pointing at him in scorn and derision, and saying that the very clothes on his back are unpaid for, while he is known to be a man perfectly independent in his circumstances; when he importunes a, magistrate for a subpoena against a beautiful and accomplished young lady (to whom he probably never spoke in his life) in the expectation of compelling her to disclose the locality of the buried treasure; when he quarrels with his wife without cause or provocation, denouncing her for the interest she takes in the subject of the same religion which was once his own highest source of happiness; when he charges her, a lady of unexceptionable life and character, with adultery with numbers of the most moral and respectable citizens of the community; when he goes so far as to charge her to her face with a crime, the bare mention of which is painful to the feelings; when he not only makes such unfounded and shocking charges to her face, but spreads them abroad through the community, and attempts to found upon such alarming delusions a judicial proceeding against his own son and the mother that bore him; when his delusions break out in open violence, and he drives his wife, beaten and bleeding, from under the roof that should be her'shelter, and at the same time raises his hand against his unoffending and worthy son; when he threatens to abandon his family, and expresses a desire to get hold of his estate in order to dispose of it, and thus raise the means of crossing the ocean; when he commits such outrages, and is guilty of such extravagant conduct, under the influence of unfounded permanent delusion, a more fit subject could not be found for a commission of lunacy.</p> <p>The jury will then determine whether the traverser labours under unsoundness of mind, and whether such unsoundness is of such a character as to demand that the shield of the law should be thrown round himself, his family, his friends and his estate. If a man labour under a variety of delusions, when those delusions are entirely unfounded, when they are of a permanent character, when they lead to constant violations of the most sacred ties and duties on earth; when in their effects they come into daily and violent conflict with the rights and character of others, a jury would hesitate before they would pronounce such a man sane and capable of governing himself and managing his affairs.</p> <p>2. The jury will determine, with the aid of the views which have been expressed by the court, under what delusions the traverser labours, whether they amount to mental unsoundness, and if so, will determine from their character and effects whether he be a fit pei’son to govern himself, with reference to the duties he owes to himself and others, and to manage his affairs.</p> <p>4. In civil cases, it is not necessary that a person should be wholly deprived of understanding, in the literal meaning of the phrase, to make him incapable of making a binding contract. It is well settled that the existence of what is known in the law as partial insanity, invalidates the act of the party, (as we have already stated), even ¡when that act has no connection with the particular delusion. It would take stronger evidence of insanity, however, to set aside, in a civil case, an act which has been attended with no injury to himself or his family, and where there has been no fraud or circumvention used, than it would to justify a jury in declaring him a lunatic.</p> <p>5. We decline charging the jury in compliance with this point. It is for the jury first to determine whether he has been sane up to this time in his management and designs in regard to his property. Suppose he had been so, this in itself cannot exempt him from a charge of lunacy, if it be well established in other respects, nor is it any guaranty that he will continue so. A man may act with the utmost rationality and prudence for a time in regard to his estate, and yet be a proper subject for a commission of lunacy. As we have already stated, the jury are first to inquire, not whether the traverser is wholly deprived of intellect, not w'hether he has no mind at all, but whether his mind be sound or unsound. If they find him unsound in mind, then they will judge by the character of the unsoundness, its consequences and effects, whether it requires the traverser and his property to be placed in the guardianship of the law. But is the degree of prudence he manifests in regard to his property the only thing worthy of consideration in determining the question of his sanity ? Has he no other duties to discharge than those which relate to the immediate care of his property? Have his wife and family no other interest than that w'hich they have in the preservation of his property ? Are they not entitled personally to his protection? and instead of protection shall they be visited with abuse and violence, with insult and injury ? Have his neighbours no rights entitled to the protection of the law? Shall their character be subject to his detraction ? Let the law once pronounce him sane and responsible for his words and actions, and his property may be swept away by damages in actions of slander. Shall the most moral and worthy members of society be implicated without the slightest foundation, day after day, in charges of the most destructive character? Shall such a man, thus unfortunately lost to every sense of duty towards himself, his family and his neighbours, be considered capable of governing himself, or managing properly his affairs ?</p> <p>The counsel of the traverser excepted to the charge, and assigned for error the answers to the points submitted by them.</p>

<p>A judgment obtained by one firm against another, each of which is constituted in part of the same members, some of them being both plaintiff and defendant, cannot be executed by a levy upon the separate property of an individual member of the defendant firm.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>Win. L. Boggs and others, heirs of Wm. Boggs, deceased, against James Varner and others. This was an action of ejectment for part of a lot of ground in the city of Pittsburgh. The plaintiffs deduced their title from John Irwin, under whom the defendant also claimed. John Irwin conveyed to John Boggs, reserving a ground rent of $50 a year. John Boggs sold by a parol sale for §500, to William Boggs, the plaintiffs’ ancestor, who entered into and continued his possession until 1822, when he went down the Ohio, taking his family with him, but leaving the house and some of his furniture in the care and custody of his sister, intending to return, but he did not. The sister rented the property to a man named Steel, who continued to occupy it until the house and furniture were consumed by fire in 1825.</p> <p>The defendants, also claiming under John Irwin, gave in evidence a deed from him to James Brown and James Varner, dated 6th September, 1828, for the consideration of §1747, recorded on the day of its date, and a deed from James Brown to James Varner, one of the defendants.</p> <p>The defendants took the ground that although the plaintiffs’ title was originally good, they were not entitled to recover, because the deed from John Irwin to John Boggs not having been placed on record, and the sale from him to William Boggs being by parol, and there being no one in actual possession at the time they purchased, they stood in the situation of bona fide purchasers for a valuable consideration without notice of the prior title.</p> <p>The plaintiffs, for the purpose of proving notice of their title to the defendant, offered in evidence the record of a deed from John Irwin to Andrew Scott, for another part of the same lot, which recited, “Thence by ground demised to John Boggs,” and the record of a deed from Andrew Scott to James Varner for the same part, dated 15th Sept. 1821; and in connection with this they offered a deed from James Brown to James Varner, for part of the same lot. These last two deeds were offered for the purpose of showing notice or knowledge in the defendants of the deed to John Boggs. This evidence was objected to by the defendants.</p> <p>Grier, (President). A recital in defendants’ title papers to a different piece of property, is no notice as regards that in dispute. If the plaintiffs intend to rely on a knowledge which is to conclude the purchaser'because he had acted fraudulently, it must be done directly, and not by loose, vague and strained inferences. If the plaintiffs can give any direct evidence of knowledge, it will be received; but we cannot commit testimony to the imaginations of a jury, to affect a man with knowledge from circumstances from which it is no necessary inference.</p> <p>The plaintiffs excepted to this opinion. The defendants offered evidence of the value of the improvements made by them on the lot in controversy since their purchase, for the purpose of showing themselves to be purchasers for value. The plaintiffs objected, but the court overruled the objection, and sealed a bill of exceptions.</p> <p>The plaintiffs, as rebutting evidence, offered in connection as follows:</p> <p>1. A continued possession of the Boggs’s up to December 1825.</p> <p>2. That James Varner during all this period lived on part of what was originally the same lot, and was in habits of daily intercourse with the family of the Boggs’s.</p> <p>3. The notoriety of the title of the Boggs’s by everybody in the neighbourhood.</p> <p>4. And again, the deed from Andrew Scott to James Brown, and from Brown to Varner. And this all for the purpose of showing the defendants’ knowledge of the plaintiffs’ title.</p> <p>The court overruled the offer and sealed a bill of exception at the request of the plaintiffs.</p> <p>The court directed a verdict for the defendants.</p>

<p>ERROR to the District Court of Mercer county.</p> <p>This was an action of ejectment by Thomas Dunn against Henry Ralyea, to recover 200 acres of land, being tract number 1031, in the 5th donation district.</p> <p>The plaintiff gave in evidence a patent from the Commonwealth, dated 17th July 1789, for lot No. 1031, of 200 acres in the 5th donation district, and sundry mesne conveyances by which the title became vested in him.</p> <p>The defendant gave in evidence a connected draft of the 5th donation district, in which the land in dispute w’as designated as tract No. 1029, and as such assessed with taxes for the years 1809 to 1817 inclusive, and on the 3d Nov. 1818, sold by the treasurer and purchased by the commissioners, who in 1823 sold the same to Hugh Moore and Hugh Evans, under whom the defendant claimed. The jury found the following special verdict:</p> <p>“We find this tract, No. 1031, is the land in controversy; that it was assessed as No. 1029 in 1816 — 1817, with county taxes. That in the commissioners’ office there was a certified draft of the 6th donation district at the time, and had been since 1804, which represented the tract in dispute as 1029, from which the commissioners annually made out the duplicates for the assessors. That it was taxed in the name of Jacob Herrington, who had, it appears, once received an acknowledgment of a treasurer’s deed for it, and which gave rise to the change in the assessment from the name of John Pearson to Jacob Herrington. That two of the supervisors of French Creek township for 1816, laid the road tax of 1816 on the tract in controversy. That it was sold as 1029, and by this number, for the taxes of 1816 and 1817, on the 3d Nov. 1818, to the commissioners of Mercer county, for the taxes and costs, being $12.92, and a deed executed by the treasurer dated 3d Nov. 1818, and acknowledged 13th Nov. 1819, and was after-wards regularly sold by the commissioners of the said county to Hugh Moore and Hugh Evans, for $41, on the 22d Nov. 1823. That this title was regularly vested in John Sheakley, under whom defendant takes defence. We further find that 1029 is on the ground located two tracts north of this, and has been seated since 1804, and that John Pearson brought suit for it on the 7th August 1816. If the court are of opinion that the plaintiff is entitled to recover, notwithstanding this treasurer’s title, and by reason of the assessment being made as 1029, when the real number on the ground is 1031, then we find for the plaintiff; but if the court be of opinion that the sale is valid for the facts offered, then we find for defendant.”</p> <p>The court below rendered a judgment for the defendant.</p>

<p>A rule of court which requires the defendant, on notice, to file an affidavit of defence, is sufficiently complied with by an affidavit made by a third person in the absence of the defendant that he has a just defence to the plaintiff’s cause of action, without setting out the particulars of it, or the deponent’s knowledge on the subject.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>This was a scire facias issued out of the court below by J. D. & A. Kelly, by which, after reciting that whereas J. D. & A. Kelly had filed a claim in that court against William Pentland and Mary his wife, formerly Mary Watson, for the sum of $536.81, for work and labour done in and about the erection and construction of certain houses therein described, the sheriff was commanded that he make known to William Pentland and to Andrew Watson Pentland, heir-at-law of said Mary Pentland then deceased, by William Pentland his guardian, and to all such persons as may hold or occupy said buildings, that they be and appear, &c., which writ having been duly served, and defendants having appeared in court, the cause was tried upon the pleas of “ JVul tiel record and payment with leave,” and verdict rendered for the plaintiff against the defendant William Pentland for $610.14, and for the co-defendant Andrew Watson Pentland, on which verdict judgment was entered and a levari facias issued. Previous, however, to the issuing of the levari facias, the premises were taken in execution and levied upon, and at the instance of John Harper, a lien creditor of William Pentland, the court appointed a sequestrator to sequester the rents, issues and profits of the premises, pursuant to the Act of Assembly of 13th October 1840, and a writ of sequestration issued by order of the court. This order of the court was in full force at the time the writ of levari facias was sued out by the plaintiffs, and at the instance of the defendant below the court granted a rule on the plaintiffs below to show cause why the levari facias should not be set aside, and proceedings stayed in the meantime. The court, after argument, delivered an opinion refusing to set aside the levari facias, and discharged the rule.</p>

This was a foreign attachment at the suit of Andrew M’Coy against Ezekiel Sankey, in which John Speise was summoned as garnishee. In answer to the plaintiff’s interrogatories, the garnishee deposed that he had made a bet of $1000 with the defendant, Ezekiel Sankey, upon the result of the election: that he was the winner, and that the money had been paid over to him by Sankey before the attachment was served upon him.

Daniel Rogers against John Gilchrist. This was an action on the case in assumpsit, the facts of which are sufficiently stated in the opinions delivered:

<p>A judgment opened and defendant let into a defence upon the merits is not an action pending, such as is subject to the provisions of the compulsory arbitration act</p>

<p>Common carriers may by special contract limit the extent of their responsibility for the safety of goods delivered to them to be carried.</p> <p>In an action against a common carrier to recover the value of goods delivered to him to be carried, the owner of the goods, being the plaintiff in the action, is not a competent witness to prove the contents of the trunk or the value of the articles which it contained.</p>

<p>ERROR to the Common Pleas of Clarion county.</p> <p>This was an action of trespass quare clausum, fregit by James J. M’Ginnis against Alexander S. Porter, in which the defendant pleaded not guilty and liberum tenementum. The cause was so imperfectly brought up as to render any other statement of it than that contained in the opinion of the court impracticable.</p>

<p>ERROR to the Common Pleas of Fayette county.</p> <p>This was an action of ejectment by Alfred Bowen and William L. Johns against John Bowen and Isaac P. Sturges for 240 acres of land. The facts of the case are fully stated in the opinion.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>James Parke against Matthew B. Lowrie. One Waters drew a promissory note dated Pittsburgh, 8th April 1839, payable to the order of Armorer, who endorsed the same to Ingersoll, who endorsed the same to Roseburg, who endorsed the same to the plaintiff, who placed the same in the Merchants’ and Manufacturers’ Bank for collection. The note was not paid at maturity, but placed in the hand of the defendant, who was a duly commissioned notary public, for protest and notice. The note was duly protested, after the notary had exhibited the same at the bank in Pittsburgh, and to sundry persons in the city, and he gave notice to the endorsers. The drawer did not reside in Pittsburgh, but in the county of Allegheny, and his place of residence was known to the defendant, but no demand was made of him there. The endorsers, in a suit by the present plaintiff, were relieved from their endorsement by the fact that no legal demand was made of the drawer; and this was an action against the defendant, who was the notary, for negligence in not making a demand of the drawer. The testimony on the part of the defendant was indisputable, that it had never been the usage, in Pittsburgh, for notaries to go out of the city to make a demand of the drawer, and the question was, whether this was a sufficient defence in this action.</p> <p>Grier (President) instructed the jury that it was, and directed a verdict for the defendant.</p>

Daniel Shryoch, treasurer of Crawford county, for the use of Gaylord Church against J. Stuart Riddle. The parties agreed to consider the following facts in the nature of a special verdict. On the 6th May 1824, John Field, of Philadelphia, died intestate, leaving five heirs, (lineal decendants), of whom were Joseph and Samuel Field, and was seised of 200 acres of land in Crawford county, No. 44.

The Commonwealth for the use of Grace M’Kee against David E. Mitchell, Hillary Brunott and D. P. Ingersoll. This was an action of debt upon the official bond of Mitchell, who was constable of the fifth ward of the city of Pittsburgh; the other two defendants were his sureties. Grace M’Kee brought an action of trespass against David E. Mitchell for levying and selling her property upon an execution against another person, and recovered a judgment against him for $68.

Wade Hampton, George P. Smith and William Ebbs, trading under the firm of Hampton, Smith & Co. against Thompson Church and Samuel Kyle, trading under the firm of T. Church & Co. Assumpsit brought to November term 1841.

<p>ERROR to the Common Pleas of Washington county.</p> <p>James Gracey, trustee of the estate of James Morrison, deceased, against James Morrison and George Morrison. This case is fully stated in the opinion of this court.</p>

Samuel Walker against The Steamboat St. Louis, Augustus Anshutz, owner.

<p>The identity of a tract of unseated land sold for the payment of taxes, is a matter of fact which cannot be made to depend alone upon the name in which it is sold, or any other particular matter of description; it is error, therefore, to reject the evidence of such a title because the name in which it was sold does not correspond precisely with that of the warrantee or any subsequent owner.</p>

<p>CERTIORARI to the Court of Quarter Sessions of Allegheny county.</p> <p>The Overseers of the Poor of St. Clair township against the Overseers of the Poor of Moon township. The plaintiffs applied to two aldermen of the city of Pittsburg for an order to remove a pauper from their township to the township of Moon. The aider-men upon hearing the testimony granted the order of removal; and from this order the defendants appealed to the Quarter Sessions, where the appeal was quashed on the ground that the aldermen had no jurisdiction of the subject: and the court, upon a further hearing of the subject, awarded an attachment against the plaintiff for the costs, expenses, &c., amounting to $164.76.</p>

<p>The Court of Common Pleas of Allegheny county has jurisdiction to try a cause which originated in the District Court, and which was certified by the Judges into the Common Pleas on the ground that one of them was related to one of the parties and the other had been counsel in the cause.</p>

This was an action of covenant by William Stewart against •James Patterson, in which the only subject of dispute was the measure of damages to which the plaintilf was entitled. The defendant conveyed a lot in Birmingham to the plaintiff, on the 6th September, 1817. Previous to that time an award of arbitrators had been filed against him, which was a lien on the property sold.

<p>Partners must act with good faith towards each other, and if one of them be served with process in action against the firm, and judgment be obtained and execution levied upon the partnership property, it is his duty to give notice of it to his co-partners; and neglect to do so subjects him to an action.</p> <p>There is discretion to be exercised by a court as to the time when evidence may be given, but it should not be entirely rejected on slight grounds.</p>

George A. Clarke & Co. against Simon Keller. The plaintiff having obtained a judgment before a justice on the 29th March 1842, issued an execution thereupon and put it into the hands of the defendant, who was a constable. On the 18th April, which was the return day of the execution, the constable arrested the defendant, who gave bond and was discharged under the Insolvent Law.

' APPEAL by the Philadelphia Temperance and Benevolent Association from the decree of the Orphan’s court of the city and county of Philadelphia in the matter of Hartt Grandom’s estate. 1 Hartt Grandom died in 1840, having by will dated the 21st July 1833, and proved the 28th November 1840, devised all his estate to John Hart, John S. Hart and Samuel R. Simmons, to have the whole at their disposal.

<p>The Supreme Court has not jurisdiction to issue an injunction to a corporation situate in Montgomery county, .as the supervision and control of corporations is included in that class of subjects in which they are prohibited from issuing process beyond the limits of the city and county of Philadelphia.</p>

This was an action of assumpsit brought by Caleb Peirce for the use of Robert E. Hannum, against Samuel M. Leiper and Peter H. Engle, who survived Archibald T. Dick, to November Term 1841, for work and labour, money paid, laid out and expended, &c. Upon the trial, Caleb Peirce, the plaintiff, was offered as a witness, and the plaintiff read in evidence the following assignment from Peirce to Robert E. Hannum, of the claim in this suit: Know all men by these presents, That I,…

Commonwealth against Mathias M. Haas. Debt on a forfeited recognizance for $150. Haas died after suit brought, and Kirkner, his executor, was substituted as defendant.

It was an action on the case to recover a sum of money that the plaintiffs had expended in repairing a bridge or causeway across the big dam erected in the Swatara creek, or rather against the company for not repairing said bridge which they had erected, as was alleged, in pursuance of the provision of the 16th section of the Act of 2d April 1811, incorporating the company.

<p>In ejectment by a purchaser of unseated land, proof is not admissible by the oath of the treasurer that a bond for the surplus had been given and filed in the proper office, without preliminary evidence of search for the bond and its loss.</p>

<p>ERROR to the District Court for the city and county of Philadelphia, in which verdicts and judgments were rendered for the plaintiffs below in these two actions on the case, one brought by Thomas Bryson, and other by Josiah Billings, against Daniel Fitler, late sheriff of the county of Philadelphia.</p> <p>In the first action the plaintiff, Bryson, complained that on the 27th March 1840, he sued out from the District Court and delivered to the sheriff, a capias ad respondendum against Jacob Berlin, on which the sheriff arrested him, and took a bond from him and two sureties, conditioned, if the defendant should be condemned in said action, he should satisfy the condemnation money or surrender himself into the custody of the sheriff, or in default the sureties would do it for him, which sureties were not reasonable sureties having sufficient estate within the said county, and that within 20 days after the sheriff’s return and notice, he excepted, and gave notice thereof to the defendant’s attorney and the sheriff, but the sureties did not justify, nor was any other bail added or substituted, but the defendant made default, the plaintiff proceeded in the action and recovered judgment against the defendant, and issued a capias ad satisfaciendum, which was returned non est inventus.</p> <p>The other suit, in which Billings was plaintiff, was of the same kind, but the plaintiff after recovering a verdict and judgment against the original defendant, Joel Brett, and after the return of the capias ad satisfaciendum, brought suit upon the bail bond taken by the sheriff, and recovered judgment upon it and issued a fi. fa. and ca. sa., which were returned nulla bona and non est inventus.</p> <p>Various errors were assigned, and the cases were argued by</p>