Volume 7 — Pennsylvania State Reports

<p>Devise over, if any of tlie devisees “ die under age or without issue,” construed to read, “ die under age and without issue,” although some of the devisees were of full age at the date of the will.</p> <p>Testator devised « the residue of my real and personal property, (except such parts as are hereinafter excepted,) to be equally divided among my wife, six sons and two dahghters, and the profits to be equally for the support of said legatees until each arrives at twenty-one, when they shall receive their part. And in case any of my children before mentioned die without lawful issue, or before they arrive at the age of twenty-one, in that case their shares, if it bo boys, shall be equally divided between my two daughters — if a daughter, equally among the surviving children or their heirs.” He further gave the possession of tract A. to his widow until marriage, and then, or at her death, to be equally divided between his surviving children or their lawful heirs, and gave other directions as to certain real estate. The wife died before testator, and proceedings in partition were had by the children, under which tract A. was awarded to G., the eldest son of testator, he paying owelty. G. and one other son were of age at the date of the will, and died without issue.</p> <p>Held, G. took an estate in fee-simple absolute under the will. That tract A. passed under the first clause devising the general residue, and was not within the exception or the second clause, which related to the possession and profits of tract A. during*the widow’s life. And the limitation over was on the contingencies of a dying underage and without issue.</p>

<p>The guardian is no party to the covenants' in an indenture of apprenticeship, though he has sealed the deed.</p> <p>An agreement by a minor for the payment of his wages to his mother — -without any consideration moving from her — is void.</p> <p>An agreement in an indenture of apprenticeship that the wages agreed to be paid to the apprentice should be paid to his mother, not party to the instrument, nor making any agreement in consideration thereof, cannot be enforced , in her favour by an action brought in the name of the apprentice and guardian who sealed the indenture.</p>

In error from the District Court of Allegheny. Sept. 28. Assumpsit by John Barr on two notes drawn by Mil-liken, one dated November, 1843, for $95 50, payable April 1, 1844, the other for $9 50, of the same date, at one month. The defendant gave evidence disproving the handwriting, and showed an account between himself and Barr, resulting in a balance of $92 94, for which a due-bill was given, May 19, 1842.

<p>Yerdict and judgment in ejectment against tenant in possession, is evidence in an action for mesne profits against his landlord, who in fact contested the case.</p> <p>Tenant in common proving a judgment in ejectment in 1839, for part of the land, and a hab. fac.poss. executed in 1842, and a judgment for another part in 1846, and possession delivered the same term • a judgment in an action for mesne profits brought in January, 1847, will not be disturbed on account of delay in talcing possession.</p> <p>Defendants in trespass for mesne profits pleaded jointly, but a separate verdict was found. Judgment may be entered against one, and a nolpros. as to the other*</p>

<p>In error from the Common Pleas of Crawford.</p> <p>Sept. 30. Case for negligence. The first count was for not reviving a judgment recovered by defendant, as attorney for plaintiffs, against Sexton and Wood, so as to continue the lien against the ter re-tenants of two lots in Meadville, the property of Sexton and Wood at the time of the recovery of the judgment. The second count was for releasing the two lots from the lien of the judgment,, aqd the third for negligence generally, in and about the said action. Pleas, non assumpsit, statute of limitations, and accord and satisfaction.</p> <p>The judgment in question had been recovered in 1835, for $1335. On the 31st of January, 1838, defendant, as attorney, released the lien on two lots in Meadville, and extended the time of payment. Sexton and Wood.agreeing, in consideration thereof, to waive condemnation on executions. Proceedings were to be stayed until June; if $600 were then paid, a further stay until Oct. 20; -if $400 were then paid, a further stay for the balance to June 1, 1838, was to be had. Under this agreement, the judgment was revived. It-was proved that Sexton was bail for Wood, and the property released had been sold by him, but the agreement could not be complied with in consequence of this lion. To enable him to complete the purchase, the release was executed, Sexton agreeing to pay $100 out of the purchase-money, which was to be $2000, towards the judgment against himself and Wood.</p> <p>The correspondence was read by each of the parties, the plaintiff residing in Massachusetts or New York. From these letters, the following extracts are taken: January 7, 1837 — Derrickson to Cady, objecting to a plan proposed by Cady, as it would release part of the property. July 6, 1837 — Cady to Derrickson, directing him in no case to release any security until final payment; but if certain payments were made, he might release Sexton individually, whatever he thought reasonable. August 11, 1837 — Derrick-son to Cady, referring to a letter received. From its tenor, “ I infer that the whole has been left for me to regulate, which I wish •to have safely done on your account. I will inform Sexton of the sum you require for the release of the Meadville house.” The letter also mentioned the inability of Sexton to comply with his bargain, in consequence of the lien. January 3,1838 — Derrickson to Cady, stating Sexton’s anxiety to obtain a release, in order to get his money; and suggesting, if the residue of the property was sufficient to secure the judgment, and they would give condemnation, and insure $500 on the 1st of June, and the balance in the spring and fall, it would be well to go into the measure; requesting an answer and authority to act as he should deem best for Cady’s interests. On the 12th, Cady replied, saying, he saw no reason why he should release without “ some paythat he considered the Meadville property the best security; that all the land was now bound, and holding on to that in Meadville might enforce an earlier payment or settlement much desired. “ Above are my feelings at present, but I leave the whole matter with you, trusting in your honour and judgment that my interests are not jeoparded.” It will be observed, the release followed this letter. On the 1st of February, the day after the release, Derrickson wrote Cady, stating the whole of the arrangement above mentioned, except the partial release of the lien. On the 7th, Cady replied, requiring punctuality in Wood. In June and December, the letters showed $70 were received from Sexton, and paid over, and in August, $300 from Wood. On the 23d of April, 1839,- Cady wrote Derrickson, “ I have ever been sorry that you have relinquished the lien on Sexton’s property in the village when he first learned it did not appear. This action was to August 9, 1845, which was more than six years after this letter. The letters to Derrickson, as attorney in the business, were continued through 1841.</p> <p>Wood, one of the defendants in the judgment out of which the controversy arose, stated, that when pressed for money by Derrick-son, he frequently wrote to Cady, and obtained indulgence. One of the letters from Cady to Wood, in 1838, was read, expressing a hope that he would help him to $200 that fall. Two similar letters, in 1841 and 1842, were rejected; they stated that Cady was much pressed, and asking when Wood could let him have certain sums; saying he must let him have certain sums at certain times.</p> <p>The defendant also gave in evidence the following instrument, signed by plaintiff on the 31st of December, 1842:</p> <p>" Cady v. Wood and Sexton. Judgments in Common Pleas of Crawford county. — In consideration of D. Derrickson releasing me from his charges as counsel for me heretofore in the above cases, I do hereby release him; and he not to act as counsel for me any further, unless employed again.”</p> <p>He further gave evidence that, besides the property released, Wood and Sexton owned real estate valued at $2000; that plaintiff had proceeded on that judgment, having employed another attorney after the release, and sold the property appraised by the jury at $1900, and that one lot, valued at $1250, was purchased at $155 by the plaintiff.</p> <p>Church, P. J., instructed the jury, that the liability commenced from the expiration of the lien in 1840. The release was ineffectual to destroy the lien unless the attorney had special authority, hence the statute of limitations had not much to do with the case. That where the matter is left to the attorney’s discretion, but so as not to prejudice, he takes the risk and responsibility on himself, in the absence of any thing else. That the release by plaintiff to defendant did not extend to past transactions, but rather to his responsibility to proceed further.</p> <p>The rejection of the two letters, the charge as to the liability of defendant, and the effect of the statute of limitations and release, and the omission to notice the conduct of Cady in giving time, and continuing to employ defendant after knowledge of the circumstances, were the material errors assigned. On the last point, there was a prayer for instructions, that if plaintiff intended to hold defendant liable, he should have so informed him at the dissolution of the relation of counsel and client, and not wait until the depreciation of property had disabled him from securing himself, which point was negatived by the court.</p>

<p>A quo warranto issued upon the suggestion of Edgar Cc^'wan, setting forth the appointment of Thomas White to the office of President Judge of the Tenth Judicial District, and that his term of office expired under the constitution on the 27th of February, 1847. That at that time the Senate was in session, and so remained until' the 16th March following. That during that period no lawful appointment was made to fill the same. And although the Senate had refused its advice and consent to the appointment of Jeremiah M. Burrell, esquire, before the close of its session, nominated by the Governor as President Judge, &c., yet the Governor notwithstanding, after the close of the session on the 25th March, 1847, by his commission .of that date, granted to the said J. M. B. the said office, &c., — this was signed and sworn to by the relator alone.</p>

<p>Oct. 11. Petition for a mandamus to the county commissioners of Allegheny, to compel them to appoint relator collector of taxes for the Fourth Ward of Pittsburgh. The return stated that one Robinson had been elected assessor of that ward. That he had returned himself and the relator for the office of collectors; but his return was not signed, nor did it state they were respectable citizens. That at no time since said return did Watt tender to the commissioners any bond, with warrant of attorney and sureties ; nor did he own any freehold estate; although he had presented a written proposition to give a bond with sufficient security, and requested them to appoint him collector — which had been disregarded by respondents. They, therefore, averred that the return was insufficient, for the reason already stated: that the return'of himself, as one of the persons to be appointed collector, was void; or if not so, he was ineligible, being a defaulter. That on the 15th July, 1847, the respondents had appointed one Hope collector, who was at the time when, &c., and now is, acting, &c.</p>

<p>In error from the Common Pleas of Westmoreland.</p> <p>Oct. 14. Debt for the penalty for taking usurious interest. Huston, the plaintiff, proved that Moorhead held his notes or obligations for $3400, and that a settlement was effected between them, and a bond taken for $4900, payment of which had been compelled; the $1500 therein added being about twelve per cent, on the $3400 from the maturity of the notes and bonds: the question was, whether this was usurious. There was evidence that Moorhead had been a dormant partner with Huston, and that on the settlement of the concern, the $1500 had been agreed upon as his share of the profits; the $3400 being the capital advanced by him. On the other hand, there was evidence that Moorhead had denied the partnership, and alleged the advance by him was a loan.</p> <p>At the time of the settlement, the debts were estimated at about $2200, which Huston undertook to pay, and gave Moorhead an indemnity bond in a penalty of $4000.</p> <p>Moorhead also showed that a suit was then pending against him on a debt due by the firm, for eight or nine hundred dollars.</p> <p>The plaintiff’s points were, that if the pretended partnership was used as a cloak to obtain more than six per cent., without incurring the risks of a partner, the transaction was usurious; that to be protected, under án allegation that the money was received as profits, there must be a distinct understanding that the losses were to be paid by Moorhead in the proportion of the profits to be received; and that taking bonds for the money loaned or advanced was, in point of law, a securing himself against the risk of loss of capital, and if more than six per cent, was received, it was usurious. White, P. J., left it to the jury to say whether there had been a partnership, and the $1500 was received as profits, instructing them that if this were so, there was no usury; since the liability to strangers could not be affected by agreement between the partners, nor would the indemnity by Huston against the debts of the concern affect the question, especially as it was shown a suit was then pending against Moor-head by one of the creditors.</p>

<p>In error to tbe Common Pleas of Westmoreland.</p> <p>Oct. 14. Case stated in tbe nature of a special verdict. Tbe action was covenant on articles to recover tbe purebase-money of land; and tbe questions were, tbe validity of two objections to tbe title; it being conceded possession bad been taken, and a deed tendered, pursuant to tbe articles.</p> <p>Tbe case was this: Hamilton died prior to 1815, leaving a widow Christine, and collateral beirs, one of whom was A. Henderson, wbo was also one of bis administrators. On tbe petition of the beirs for partition, a sale was ordered by tbe Orphans’ Court, and made to McClurg in September, 1817, by tbe administrators of Hamilton; one half tbe purchase-money to remain on tbe land during tbe life of Christine tbe widow.</p> <p>A. Henderson married Christine; and in July, 1818, McClurg conveyed him tbe land, subject to the conditions of tfie Orphans’ Court sale. The fact that he bad been administrator, making the sale in partition, was tbe ground of tbe first objection; but there was no other evidence showing be had any participation in tbe purchase by McClurg; and suits bad been brought for the money charged on tbe land in favour of Hamilton’s beirs, which was payable after the widow’s death.</p> <p>A. Henderson died seised in 1836, leaving Christine, his widow, and collateral heirs. One of the heirs petitioned for partition, and an inquest having returned a valuation, a rule was taken on the heirs to appear and accept or refuse. In Feb., 1839, the heirs not appearing, the court assigned the land to the widow, Christine, who entered into recognisances. The court then ordered her to pay the money secured thereby into court, in discharge of her recognisances, to be distributed according to law. This had not been done. But, in March, 1839, she executed the articles on which this suit was brought. In these articles she stipulated for a payment to enable her to comply with the order of the court. The invalidity of the order, assigning the land to the widow, was the other objection to the title. The court below gave judgment for the plaintiff.</p>

<p>Appeal from Westmoreland county.</p> <p>' Oct. 15. This was a bill filed by Brinker, setting forth that he resided with his father upon a tract of land, and was about removing, when his father agreed that if he would remain, he would give him the land on certain conditions, viz.: the son should build a house, and farm the land, supply his parents with whatever they wanted, and pay certain sums to his sisters within ten years after the father’s death. That he assented to the terms, and the father made a will accordingly. That complainant continued on the land, Iris parents residing there also, and made valuable improvements, treating the land as his own until his father’s death. That the will had been deposited in a certain chest, but had .been removed, as the complainant alleged, by his brother. That complainant had paid part of the money stipulated for, and was willing to pay the residue. He therefore prayed a subpoena to the heirs and representatives of his father to answer the premises particula-rly in relation to the will and its embezzlement, and to show cause why the same should not be supplied by parol, and a title decreed to complainant, and “ that the court shall decree as equity shall enjoin and direct.”</p> <p>Evidence of gowing witnesses was taken before a commissioner tending to prove the plaintiff’s case. One of the defendants demurred, and another answered, admitting the contract and will. Whether the other defendants appeared, or what was the decree below, was not stated in the paper book; but it seems the court dismissed the bill on the demurrer.</p> <p>The style of the court below was not mentioned in the bill, but in some of the other proceedings they are stated to have been in the Common Pleas, and the demurrer was entitled “in chancery.”</p>

<p>The vendee of a tenant who has an apparent legal title, and from whom the purchase was made, without notice of the tenancy, is not bound to deliver up possession'to the landlord, but may defend in ejectment.</p>

<p>From the Common Pleas of Westmoreland.</p> <p>Oct. 19. In 1845 the real estate of McYey was sold by the sheriff, and the question in the cause arose on the distribution of the proceeds. In 1834-5, several judgments had been obtained against McYey. In 1838 seven of these judgments, some of which had been obtained by Welty, and some by third persons to his use, were revived by an amicable scire facias, in which Welty was plaintiff. The agreement for the entry of the revived judgment was signed by defendant alone, and referred to the original judgments by their terms and numbers; and judgment of revival was therefore entered by confession, a "calculation of the amount being filed and referred to. This revived judgment was again included in an amicable sci. fa. to revive, and was referred to by its term and number; and several other original judgments being included, the whole were again revived by agreement and confession of one judgment.. Nine other similar judgments were revived by a like agreement in 1840. In 1843, five more were revived in the same manner, the agreement being signed by both parties.</p> <p>The auditor awarded the fund to these judgments. The appellants held some judgments older than some of those to which the fund had been awarded, but more than five years had elapsed between their rendition and the issuing of their sci. fa.</p>

<p>After a survey has been returned fifty years, and taxes have been paid for upwards of thirty years, the presumption that the survey was regularly made, is dejure. And it seems this presumption applies where the survey has been returned for more ' than twenty-one years.</p> <p>Nor is it material that there has been a subsequent decree of the board of property on a caveat to this return, directing a different survey, there being no evidence of acts done according to the decree.</p> <p>Evidence of ancient practice of surveyors not admissible to rebut this presumption.</p> <p>Evidence of location of adjoining tracts always admissible, to show location of survey calling for them.</p> <p>Payment of taxes, after a treasurer’s sale for them, has no effect on the title.</p> <p>If a particular piece of land is taxed, and sold for non-payment, it is immaterial who was the owner.</p>

<p>The title of a warrantee has inception from the date of his application and the affidavit describing the condition of the land. And a settlement commenced after that, with notice that the application has been made, though before it had been filed in the land-office, will not avail against the warrant subsequently granted.</p> <p>It is not error to admit a grantor’s evidence that he had executed a deed.</p> <p>Assignor of land having previously failed in an ejectment, is a competent witness for his assignee.</p>

<p>In error from the Common Pleas of Indiana.</p> <p>Oct. 21. James Thompson dying without issue, his land passed by the intestate law to his father Robert for life — remainder to his brothers and sisters in fee. Robert, the father, made his will in 1815, devising certain lands to his sons Robert and John in fee; to his daughter Mary, the plaintiff, he gave a legacy of $150, payable by his executors out of his personal estate. To his two other daughters he gave legacies, payable out of the personal estate. To his sons John and Robert (the defendant) he devised the land formerly belonging to his son James; and to Robert he gave the residue of his personalty. By his codicil, made in the same year, he devised to his daughter Mary the land possessed by his son James; but, if she thought it preferable, “ she will receive in lieu thereof, to be paid equally letwixt my son John and Robert, one hundred and fifty dollars.”</p> <p>The present action was brought by'Mary to recover from Robert the one-half of her legacy. She proved that Robert had resided on the land and claimed it as his own since 1815, when the father died. " That, in 1839 or 1840, one Hamilton had purchased this land from the heirs who joined in a deed to him. These heirs were John and Robert, Mary the plaintiff, and the heirs of the other sisters of James Thompson. That Robert had desired Hamilton to pay his share of the purchase-money to plaintiff, on account of the legacy under her father’s will, and that he had said he had left $70-in the hands of Hamilton for that purpose. This was all the evidence.</p> <p>His honour directed a verdict for defendant, saying that the plaintiff, by joining in a sale of the land which deprived the devisees of the bounty so far as she could do so, could not have her share of the price of the land and the legacy too.</p> <p>(Note. — There was no evidence of the disposition made of the purchase-money due by Hamilton.)</p>

<p>Appeal from the Common Pleas of Indiana.</p> <p>Oct. 22. - Horbach entered into articles to convey to Riley, who paid $50 of the purchase-money. Judgment was then recovered by the appellee against Riley. . Subsequently to this judgment, Horbach brought covenant for the unpaid purchase-money under the articles, and judgment having been confessed, the land was sold thereunder at sheriff’s sale, and Horbach purchased it. The court below awarded the proceeds to the earlier judgment, on the authority of Wilson v. Stoxe, 10 Watts, whereupon Horbach appealed.</p>

<p>In error from the Common. Pleas of Elk.</p> <p>Oct. 22. Heath brought ejectment, and the evidence of his title was similar to that stated in Heath v. Knapp, 4 Barr, 228. The defendants relied on the fact, that no patent having issued, there was not such a legal title as would pass under the conveyance by Mrs. Morris and her husband; the land having been devised to her separate use without the intervention of a trustee. The defendants were strangers to the trust.</p>

<p>In error from the Common Pleas of Washington.</p> <p>Oct. 25. McCreery, by his will, after payment of his debts, devised his real estate to his wife for life, to be under her control and direction; and further, “ after the death of my wife I allow all my estate to be disposed of at public sale, and as soon as the proceeds is collected, it is my will that the proceeds be divided among my daughters.” He further declared, « after my decease, should my executors be of opinion it would be for the interest of my family to dispose of my real estate, and can satisfy the Orphans’ Court of this county -that it would be so, then, and in that case, I allow it to be sold and the money to be put at interest, to be at the disposal of my wife, in the same manner as the real estate before-mentioned,” and appointed his wife and Martin executors.</p> <p>By the act of 26th July, 1842, (p. 435,) Sarah McCreery, executrix, and widow of testator, was authorized “ to sell and convey, by deed, to the purchaser or purchasers, such parts of the real estate of which said Wm. McCreery died seised, situate, &c., as shall be found necessary to pay and discharge the debts now due from the said estate.” Provided, that before she should sell and convey, she should give bond and sureties, approved by the Orphans’ Court, conditioned for the faithful and proper application of the purchase-money. On the 10th August, 1842, she petitioned the Orphans’ Court, stating the act and her purpose of selling seventy acres of land, and tendering a bond, which she prayed might be approved. The bond was executed in a penalty of $2000, and is stated to have been filed.</p> <p>• In October, 1842, she sold the land to one of the defendants, who, in his answer to a bill of discovery, stated he purchased at her instance, and the price was $200, payable on April 1 following, and $360 in two equal annual payments; no money was paid, but bonds were given; Mrs. McOreery continued to reside on the land and receive the rents, and it was the understanding that the heirs of testator, or some one for them, should pay to his creditors the amount of his purchase, and the land should be conveyed to them.</p> <p>The plaintiff recovered a judgment against Sarah McOreery, under which the land was sold to plaintiff in July, 1844, who brought this ejectment. He further proved the existence of several prior judgments against her as executrix, and that there had been no public notice or knowledge of the sale to defendant.</p> <p>His honour instructed the jury that the private sale by executrix was unauthorized and void, and this was the only question argued here by</p>

<p>A sale of personal property in the hands of a bailee is good against an execution creditor, though there be no actual delivery, if the vendor does not retake possession. And so if the vendee takes possession and leaves the property with the former bailee for a special purpose.</p>

<p>In error from the Common Pleas of Washington.</p> <p>Oet. 25. Ejectment for one hundred acres, part of three hundred devised by John Ringland to the plaintiffs. The defendant claimed under an agreement with John Ringland, about one year before his death. He proved,by numerous witnesses, that Ringland, who was a relation, sick with the palsy, had agreed if he would come and live with and take care of him, he would give him one hundred acres, including the mansion-house on the end of the farm next Greenfield, and that he had performed his part of the agreement. He further gave evidence of Ringland’s declarations, that a particular coal-bed was in the land he had thus given: that Ringland had given directions to a surveyor to run off the one hundred acres sufficiently explicit to have enabled him to do it; and this was done “ according to the plan proposed” by Ringland to the survey- or, but not until after his death. The line of this survey crossed three or four fields. Defendant, when he came on the land, brought his stock with him, and farmed the land with that stock and Ring-land’s, but he lived in the same house with him and his wife, as before. Part of the one hundred acres had been held by one Thomas, as a cropper, but when defendant came there, Ringland refused to continue that arrangement; but with defendant’s consent Thomas continued another year. It appeared from the evidence there was no marking of boundaries, nor any exclusive occupation; but that defendant farmed the whole tract under an arrangement with Ring-land, in consideration of the payment of the taxes and making the fences for one year, and that in other respects matters went on as before the agreement.</p> <p>Ewing, P. J., instructed the jury, that although it was part of the contract that defendant should live with Ringland, there was not such a delivery of possession as would take the case out of the statute. This was the only point assigned for error, and argued by</p>

<p>In error from the Common Pleas of Fayette.</p> <p>Oct. 25. Case for malicious prosecution. Under a rule by defendant, arbitrators were chosen. The plaintiff agreed to rest his cas.e on the proof of a warrant and arrest and discharge by the justice, without proof of malice, want of probable cause, or damage. On award filed, defendant excepted to the decision on the point of law; this was dismissed, and judgment entered on the award. The errors assigned were in the decision by the arbitrators of the point submitted, and the entry of judgment by the court.</p>

<p>In error from the Common Pleas of Fayette.</p> <p>Oct. 26. This was an ejectment for a strip of land between the lands of which the parties were in undisputed possession. •• The case was this: In 1785, two adjoining surveys were made for John Tate, the elder, for which a patent issued, calling for 320-|-acres; but, by a recent survey, it had been ascertained to contain 372J acres. In 1790 and 1799, John Tate devised: “I further will and devise that my son Robert Tate shall have that part of the plantation whereon-1 now live, to contain one hundred and seventy acres, to live upon and make use of during his life, and at his decease to be equally divided among his children; and further, I will that my son John Tate shall have and fully possess and enjoy the residue of the plantation I live upon, to be disposed of by him as he pleaseth,” and appointed his wife and one Jackson executors. In the year 1800, Jackson, the executor, sent for a surveyor to divide the land under the will; and Robert and John, the devisees, carried the chain when he marked a line dividing -their shares. No survey, however, was made to ascertain the contents of the purpart allotted to Robert Tate. This tract had been known as the Tateston- or Hacker tract. In 1809, John Tate the younger mortgaged a moiety of a tract called Tateston, which he held under his father’s will, describing it as one hundred and fifty acres and allowance; and one of the boundaries was “ thence by Robert Tate’s part of said tract.” In 1819, a judgment was ^recovered against John Tate, the younger, under which two hundred acres, adjoining Robert Tate and others, was sold in 1823 to the plaintiff. In 1827, judgment was recovered on a sei. fa. upon ■the mortgage of 1809 ; and, in 1829, sixty-one acres, being the residue of the mortgaged land, was sold to plaintiff. It was proved that the levy, under the judgment of 1819, covered the whole of the mortgaged property, except the sixty-one acres sold under that mortgage. Those sixty-one acres had been sold to Robert Tate, which was the reason they were not included in that levy. Unti^ within a few years, the disputed land had been uncleared, and was but partially so at present. In 1833, Robert Tate died, and his children, who were minors at the time of the parol partition, commenced proceedings in partition in 1839, and their land was awarded at a valuation to the assignee of some of them; and, upcler him, the present defendant held a conveyance for describing the land as about one hundred and eighty-four acres. It was. proved that the children of Robert Tate, after they came of age, made no complaint, or difficulty, about the division line; but it was talked about and agreed to by them. There was also the testimony of a witness that the present plaintiff had pointed out to the road-viewers the old line as the line between his land and that of Robert Tate.</p> <p>Ewing, P. J., instructed the jury that the children of R. Tate might confirm the parol partition made by their father; and, if they had done so, the acquiescence of the plaintiff for seven years without dispute as to the line, especially when, as late as 1838, he had pointed it out as the division line, would bind him. And that there was another ground for the decision. If the levy, under the judgment of 1819, only came up to the agreed line, and the mortgage of 1809 called for that line, the plaintiff had no right to the land in dispute which lay beyond. The authorities he cited, as to the confirmation by the infants, were Litt. s. 258; Co. Litt. 171 b; Hubbard v. Cummings, 1 Greenl. 11; Bac. Abr. T. Infancy and Age, I. 8; 2 Vern. 225; 10 Serg. & Rawle, 117; 2 Kent. Com. 234 et seq.</p> <p>The admission of evidence of the division line by agreement, and of what land was included in the survey, and the charge on the points stated, were the errors assigned immaterial in the case.</p>

<p>Appeal from the Orphans’ Court of Washington.</p> <p>Oct. 28. D. Campbell, jun., administrator of Campbell, filed an account, -which was referred to auditors. From their report it appeared, that accountant was a favourite nephew of the intestate, and had purchased some land from him. Some time afterwards, the intestate had taken two notes from accountant, and the question was, whether he was chargeable with them. It was proved, that in the accountant’s absence, the intestate had sent for one Freeman, to prepare assignments of certain notes, &c., held by him. This was done, and the property assigned among his relatives. Freeman testified, when this was taking place, the wife of the intestate asked him what ho would do with D. Campbell’s [[the accountant] notes, and he directed her either to burn them or give them to him. They were not then produced or specified. The widow of the intestate stated she had been directed by her husband to destroy the notes, and she had delivered them to accountant after intestate’s death. Ewart, who witnessed the assignments, stated, that after they had got through, Mr. Campbell asked his wife if these were all the notes; she said they were, excepting D. Campbell's notes; Mr. Campbell said, “if he was likely to drop off, or any thing should happen to him before he would get to see D. Campbell, do you take them notes and burn them;” this direction-he repeated.</p> <p>The accountant offered himself for examination, but it was declined ; and the auditors being of opinion the transaction amounted to an equitable extinguishment of the debt, refused to charge accountant with the amount of his notes. The report havirg been confirmed, this was the question argued here.</p>

<p>In error from the Common Pleas of Washington.</p> <p>Oct. 29. Trespass. The plaintiffs were executors of G-eorge Sutherland, having an estate under his will. The defendants were heirs of Alexander Sutherland, a son of G-eorge, who it was alleged had received the land under a parol gift, and made improvements. By his will, testator, after making provision for some of the children of his son Alexander, declared that if the heirs of Alexander should bring ejectment or otherwise recover fifty acres of land their father had settled on in his lifetime, and should actually gain that by law of his real estate, then the heirs of Alexander should be cut off with one dollar. The defendants, who, since the death of testator, had entered on the land, called many witnesses to prove the gift. E. L. had heard testator, a few days after he raised his log-house, say: that if Alexander would go on and finish off this house, as he had agreed, he would give him fifty acres of land; and after testator had got into his house, he said: Alexander had finished off the house in good style, and he had given him fifty acres of land, and that Alexander had built himself a house and shop upon it. There was no designation of boundaries then mentioned, further than that the land was on the ridge next the blockhouse, and lay on the road between witness’s father’s factories and Potter’s mill. The time of these conversations did not appear from the paper book. The witness further stated that Alexander had been living on these fifty acres four or five years prior to 1823, when witness left the country. J. E. stated there was a strip of woods between the land Alexander lived on, and the land of testator; and she proved testator’s declaration that the mother of one of defendants might move a house on the land to a particular spot, for that was defendant’s land, and he would help her to move it. S. 0. proved that prior to 1814, testator told his son Alexander to direct witness where to cut wood on the disputed tract, as he was going to give him the Ignd. Between 1814 and 1818, testator informed witness he had given Alexander fifty acres there next the blockhouse, in that corner.</p> <p>John Daley testified that about 1821-2, Alexander applied to him to help raise a shop ; part of the foundation was laid. Testator came there, and told Alexander he would put the shop on tho other side of the road; they disputed, and testator said : you may put it where you jdease — the land is your own. Seven or eight years afterwards, testator, pointing to the land where Alexander lived, told witness he had given him fifty acres. Two years afterwards, he again told him he had given Alexander fifty acres of his land in 4 the north-west corner of his farm, adjoining lands of McCoy and the blockhouse tract; that he did not think it prudent to give him a deed, as he had spent his wife’s land; but he would leave it so that when he was called off, the heirs would get the land. It was also in evidence that Alexander had built a house, barn, and shop — such as were usual in that part of the country — and cleared part of the land, where he resided until his death, in 1886. His family moved off a few weeks afterwards. A surveyor who had laid off the land containing forty-nine acres, one hundred and thirty-eight perches, since testator’s death, stated: It could not be taken off in any other way so as to include the buildings. The plaintiffs proved a lease between testator and defendants, after the death of Alexander, for tho whole tract, and that from 1815 to 1836, the whole tract was assessed to testator. That in 1820 Alexander applied for the benefit of tho insolvent laws, and made affidavit he had no property. The defendants showed that from 1810 to 1815, fifty acres were assessed to Alexander.</p> <p>The two points submitted, which were assigned for error, were,</p> <p>3. That defendants must show mot only the gift, the possession taken in pursuance thereof, and valuable improvements, but the precise locality of the land claimed, and the particular boundaries thereof, so that the jury could direct, from the testimony before them, where the lines should run, and how the deed should be drawn. To this the court answered: This is true, but it does not mean that the jury must be able to fix the exact courses and distances of the lines, but must be able to fix the locality and boundaries so as to direct how a surveyor may run it off from the rest of the father’s land.</p> <p>6. That the defendants have failed, in law, in making out a valid parol title to the land in dispute.</p> <p>Answer. We cannot say this — it depends upon facts of which the jury must judge. But to enable the jury to find for the defendants, they must be satisfied that the defendants have made out clearly the facts necessary to bring their case within the principles of law applicable to parol sales or gifts.</p> <p>These two points, and the want of an explanation of the law in relation to parol sales or gifts of land, were the errors assigned.</p>

In error from the Common Pleas of Washington. Oct. 29. A judgment having been recovered against Robinson in 1844, before a justice of the peace, he appealed. The transcript showed “ defendant and Wm.

<p>In error from the Common Pleas of Washington.</p> <p>Oct. 29. Ejectment. Shaw, the plaintiff, showed a lease for life to himself from Galbraith, the elder, dated Aug. 12,1846, which it was provided should have no effect upon a conveyance to Shaw in 1837.</p> <p>The defendants showed a deed by Galbraith, the elder, dated July 2, 1838, conveying to Galbraith, the younger, (the words “his heirs and assigns” not being in the granting clause of the deed, or in the habendum,) the property in dispute in consideration of one dollar, and the payment of $30 per annum to the grantor and his wife during their lives. In the clause of warranty the deed ran thus : “ And the said R. G., sen., and E., his wife, for themselves and their heirs, unto the said R. G., jun., and his heirs and assigns, and against all and every person lawfully claiming, or to claim the same, or any part thereof, will warrant and for ever defend.” This deed, though styled an indenture, was sealed only by the grantor and his wife, and was in the ordinary form of a conveyance in use in this state, and was recorded in 1838. Galbraith, the younger, died before this action was commenced, one of the defendants being his widow — the title of the other defendant did not appear.</p> <p>The plaintiff then offered in evidence sealed articles of agreement between Galbraith, the elder, and himself, dated in 1837,• wherein Galbraith, the elder, in consideration of $300 agreed to be paid by Shaw, and of the natural love and affection he bore to his daughter, the wife of Shaw, did covenant and agree for himself, his heirs, executors, &c., that he, his executors, &c., would, at the death of said Galbraith, convey to said Shaw, his heirs, &c., by such deed as counsel should advise, the undivided half of a tract of 200 acres, whereon said Galbraith then resided. On this was endorsed a receipt for $15. Galbraith the elder was yet living. These articles were rejected by the court, who (Ewing, P. J.) instructed the jury that the deed of July conveyed a fee-simple by estoppel to the grantee, and plaintiff was not entitled to recover.</p> <p>This ruling, and the rejection of the articles of 1837, were the errors assigned.</p> <p>(Note. — It was not submitted that a recovery could be had for part of the land, nor could it be collected from the record what was the title of defendants, excepting that of the widow of Galbraith, the younger.)</p>

<p>In error from the Common Pleas of Washington county.</p> <p>Oct. 29. Ejectment for an interference of eight and a half acres. The plaintiff showed an application of David Redick, September 7, 1786, for two hundred acres, including his improvement made in 1776, and the improvement made by Torrence, on which he lived. Interest from March 1, 1776. , But of these improvements there was no proof. A warrant issued thereon September 7,1786, and a survey was made by Hoge, a deputy-surveyor, July, 1787, on which a patent issued to Redick in July, 1788, from whom plaintiff derived title in 1818.</p> <p>The defendant proved an application by Stokely, September 24, 1785; interest from March 1, 1777; a warrant issued the •same day with a survey in June, 1787, entered in .David Redick’s books, who was a deputy-surveyor. This warrant had not been returned in 1889, but in 1841 a patent issued to one Wilson. These two surveys interfered, as appeared from the marked lines, and for that interference this action was brought. Both tracts had been settled by the respective owners, but the interference remained uncleared, and had been in controversy for a long time. It was agreed to try the cause on the same evidence as had been given on the former trial, (which case is reported 1 Barr, 458,) excepting the testimony of Leet, an aged and infirm witness, whose examination was taken and read by the defendant. He stated that the Stokely survey was entered in Redick’s book and in Redick’s handwritings and that he knew the tract when eleven years old, (which from his age must have been prior to 1783,) and then a man named Holmes lived on it, and it had been occupied ever since. The plaintiff gave in evidence the decision in his favour of the Board of Property in Í838, on a caveat to the acceptance of-Stokely’s survey, entered in 1834, which stated the survey in 1785 had never been returned.</p> <p>The court instructed the jury that though, under the decision of this court, the fact that Redick having made the survey for Stokely did not bar him under his subsequent warrant, so far as it interfered with that; yet as there was no evidence of an improvement on Redick’s tract prior to his survey, and there was evidence of an improvement on Stokely’s survey as early as 1779, and the evidence of Leet showed Stokely to have been in possession at the date of Redick’s warrant, that possession would equally protect him from Redick’s warrant as from other subsequent warrants or settlements.</p>

In error from the Common Pleas of Fayette. Nov. 1. Renshaw brought covenant on articles for the purchase of land by Gans, and declared upon the written agreement, without any averment of fraud, &c.: the articles stipulating for payment of $1000, “so soon as Renshaw makes a warranty deed for the lots.” Rut the deed tendered, pursuant to the articles, contained a general warranty, “ excepting quit-rents.” The defendant gave evidence tending to show that Renshaw held under a…

In error from the Common Pleas of Fayette. Nov. 1. Sarah Jones brought an action of dower unde nihil habet, $c. against Casporus and Patterson. Casporus pleaded ne unques seisi que dowér, and that husband of demandant is yet living, and issue was joined. Patterson pleaded « non-tenure,” and issue was joined.

In error from the Common Pleas of Fayette. JNbv. 1. Covenant.

<p>In error from the Common Pleas of Fayette.</p> <p>Nov. 2. The defendant appealed from a judgment of a justice in trover. The cause was arbitrated, under a rule of court, and in August, 1845, an award for defendant. A recognisance was then entered into by One Stemm, conditioned, in the event of a judgment for defendant, that plaintiff would pay all costs, «with. one dollar for each and every day that shall be lost by said defendant in attending to such appeal.” The cause was again arbitrated, by agreement, and award for defendant.</p> <p>The court allowed plaintiff “ $9 for his daily pay,” in his bill of costs, which the prothonotary had disallowed, for which judgment was entered. Whereupon this writ of error was sued out.</p> <p>(Note. — The plaintiff did not join in the recognisance, nor was there any action taken upon it, so far as appeared from the paper book.)</p>

In error from the Common Pleas of Payette. Nov. 2. Assumpsit on a note made 9th of October, 1840, by the defendant. The note offered in evidence was signed by “ Fos- ’ ter, Nixon & Co., and John Wilson.” On objection taken to the evidence, the plaintiff amended his narr. by describing the note as signed by Foster, Nixon & Co., and the same day by defendant as their security. There had been an award for defendant. The note was again objected to, but no reason assigned.

In error from tbe Common Pleas of Payette. Nov. 2. The question was, whether the land of Davidson, who was served with a soi. fa. as terre-tenant, was bound by the lien of a judgment. On the trial it appeared that judgment was entered in 1828 against 0. Jennings. He removed to Tennessee, where he died, in 1832. In 1833 an amicable soi. fa. to revive issued against J. R. Jennings, his executor, on which judgment was confessed. The same was done in 1837.

In error from the Common Pleas of Green. Nov. 3. Debt on award, and case stated.

<p>An executor or administrator, plaintiff, is personally liable to defendants for costs.</p>

<p>In error from the Common Pleas of Greene.</p> <p>Nov. 3. Ejectment by Lockhart. The defendant’s title was a petition by the administrators of one Latimer, praying a sale for payment of debts and maintenance of children, with a schedule of debts and assets annexed. In September, 183T, a decree for a sale was made. In November the administrators reported a sale to John, the defendant — one-half cash, balance in two annual payments, secured by bond and mortgage. This sale was confirmed, and a deed made in 1838, pursuant to the decree. But whether the purchase-money had been paid and the securities given, did not appear from the record. ,</p> <p>In June, 1844, a petition was presented setting forth that the administrators of Latimer had removed from the state, and had no place of residence therein for more than one year past. On citation, &e., the letters were vacated in default of entering security. And “on motion, the court set aside the sale.”</p> <p>The new administrator then petitioned for a sale for payment of debts, which was ordered and made, security entered, and deed delivered to Lockhart, the present plaintiff, on payment of the purchase-money.</p> <p>The court refused to charge that the first sale was void for want of security by the administrators, saying the court had jurisdiction under the act, and though the directions had not been complied with, for which the decree might ha,ve been reversed, or the sale set aside before confirmation, it was not void after confirmation.</p> <p>This was the only error assigned.</p>

<p>Where parcels of goods differ from each other in quantity or value, the property does not pass by a sale of some of the parcels until they are designated so as to be distinguishable from the mass.</p> <p>A. being the owner of one hundred and twenty-five barrels of molasses, varying somewhat in quantity, sold one hundred barrels to B., but permitted them to remain in the cellar at B.’s request. The barrels were not separated or marked, nor were any particular barrels agreed upon. B. sold one hundred barrels to C., and offered to turn them out and gauge them, but C. requested they might remain in the cellar. The goods having been destroyed by fire before delivery or specification of the particular goods, B. cannot recover from C. the agreed price of the sale.</p>

<p>In error from the Common Pleas of Allegheny.</p> <p>Nov. 5. McBride brought replevin for a cow sold to Alter under a distress for school-taxes assessed against McBride. Notice had been given at the sale that the tax was illegally assessed, and was excessive, and that was the question on the record. In the year for which the assessment was made, Moon township, which constituted the school district in which McBride resided, contained two hundred and sixty taxable inhabitants. For that year the district received out of the appropriation, by the state, $260; and the assessment for that year was for three times that amount. In September, the duplicate and warrant of distress was delivered to the collector, and McBride paid one-half of the amount. The sale was made under that authority, and the question' was, whether the assessment was excessive. The court (Patton, J.) instructed the jury that the directors, in their assessment, were restricted to the amount to which the district was entitled out of the appropriation by the act of 1836.</p>

<p>From the Orphans’ Court of Westmoreland.</p> <p>Nov. 6. On the 27th August, 1846, an appraisement in partition was confirmed and a rule granted on the heirs to appear on the first day of the next term, (which fell on the 15th February, 1847,) to accept or refuse the real estate at the valuation. The rule was served but no heirs appeared. On the 18th February, a rule on the heirs was granted to show cause why the real estate should not be sold. On the hearing, Wentz,,as alienee of the second son of the intestate, the eldest son not appearing, requested that the estate should be adjudged to him at the valuation, which was refused, and an order of sale made the next day. It did not appear from the paper book when the title of Wentz accrued, or that he had notice of the first rule on the heirs.</p> <p>This refusal of the court was assigned for error.</p>

<p>In error from the Common Pleas of Allegheny.</p> <p>Nov. 8.. This was a scire facias to December Term, 1845, by the administrators of Wills, to revive a judgment for arrearages of ground-rent against the original defendant, with notice to the present terre-tenant. Culbert, the terre-tenant, pleaded that the judgment was not a lien, and secondly, that she was a purchaser for valuable consideration, and the judgment was no lien. It appeared that, in 1823, the administrators of Wills brought covenant for rent against James Gibson, assignee of John Gibson, who was the grantee of Wills, on ground-rent by deed, dated in 1814. In the declaration, the plaintiffs claimed for two years’ rent, amounting to $112, due in the lifetime of Wills, and for $42 accruing subsequent to his death. Pleas were filed, and in March, 1825, judgment confessed by attorney, “ sum to be liquidated by prothonotary, on five days’ notice.” It further appeared from the record, that notice of the liquidation of the judgment had been served in 1832, whereupon the amount due was settled by the prothonotary as follows: “ Debt per settlement made Nov. 7, 1825,* $81 27J. Interest from Oct. 25, 1825, to Jan. 1832, $30 57: $111 84J.” Culbert, the terre-tenant, proved she purchased the property in 1886. She further showed, that the guardians of the minor children of Wills had received several sums of money on account of rent, viz. $112 62, from James Gibson, between 1831 and 1833 ; from 1833 to 183“7, $240 12; from 1838 to 1840, $140, from Gibson or Culbert, and from Mrs. Culbert several sums from 1843 to 1846. The plaintiff in rebuttal showed the administration account in 1832, in which credit was claimed on account of this judgment being unpaid.</p> <p>The court, Patton, J., left it to the jury to say, from all the circumstances in the case, whether the judgment had been paid; but said, that at all events, it ceased to be a lien on the land of the ter re-tenant.</p>

<p>Tlie change of possession, under a parol sale, must be notorious and continued. Hence, where the tenant attorned under instructions, and made a new bargain with the vendee, but when the rent fell due was directed to pay it to the vendor, who was his debtor, which he did by allowing him credit for the amount, and then quit possession, giving notice to the vendee, and the vendor entered and remained in possession, the case was held to be within the statute of frauds, although the location and boundaries of the land, and the price and partial payment thereof, were clearly proved.</p>

<p>Grantee on ground-rent, covenanting to pay all taxes assessed on the demised premises without any deduction from the rent, is not liable for taxes assessed upon the ground-rent.</p> <p>Where the tenant has not covenanted to pay the taxes on the ground-rent, they are to be assessed against the owner; and the full value, and not the annual rent, is the value on which the assessment is to be made.</p> <p>Where the grantee on ground-rent covenants to pay the taxes on the rent, there is to be no separate assessment on the ground-rent</p>

<p>A joint-stock company to deal in land, is essentially a partnership, and land purchased by it as an article of trade is not subject to judgment and execution at the suit of a separate creditor; and a purchaser, with notice, by a voluntary or an involuntary conveyance of the interest of one of the partners, is to bo postponed to a subsequent purchaser of the interest of the firm.</p> <p>The purchaser of an equitable title is a purchaser with notice, and takes subject to prior equities, though they were actually unknown to him.</p> <p>By articles of copartnership, the firm of A. andB. and nineteen other shareholders, constituted themselves a joint-stock company to deal in land, for three years; at the end of which, the capital and profits were to be divided. .A. and B. were the active agents of the company, and ostensible owners of its lands, buying and selling in theic own names, and executing secret declarations of trust in its favour, and recording them when required to do so. B. was also the owner of a half-share in the company's stock. By the articles they were to receive a third of the net profits in compensation of their services. They purchased, by written agreement, a tract of land from C. and paid the purchase-money; after which, A. sold Ins interest in the land and in the profits of the concern to B., who thenceforth became the sole agent of the company. Subsequent to the purchase and payment, judgment was obtained by a separate creditor of A. and B.; and still later, B. agreed to sell part of the land bought from C. to D., who directed the conveyance of the legal title to be made immediately ‘from C. to E. The firm of A. and B. was a creditor of the company, which was insolvent. Ifeld, that the interest of A. and B. in the land, was not bound by the judgment of their separate creditor.</p> <p>As the ownership of such a partner is not the estate of a tenant in common in the lands, but a resulting interest in the proceeds, it is not bound by a judgment for his separate debts, though it is bound by a judgment for a partnership debt.</p>

<p>Certiorari to the Quarter Sessions of Allegheny.</p> <p>Nov. 12. These two cases were argued together. They were proceedings to assess damages for opening streets under the act of 1836, sect. 3, et- seq., Pamph. Law's, 750, which provided, that the damages should be paid by the councils of Pittsburgh, and^the act of 1846, sect. 8, p. 470, which authorized the assessment of damages on any person benefited by the said road. The reports, awarding damages generally, were filed in December, 1846, and exceptions taken. By the act of 1847, Pamph. Laws, p. 376, other provisions were made respecting these claims. On the 27th of April, the court declined approving the report of the viewers, and recommitted the matter to them, with instructions to proceed under the act of 1847. This was the error assigned by the.petitioners.</p>

<p>Account render lies by cestui que trust against his trustee receiving profits of land. When the title has passed to a person in trust, the trust will always be enforced, though the trustee himself paid the purchase-money, and tho trust is declared for his children.</p>

<p>The grantee of land in fee, out of which a rent is reserved, in the nature of a rent service, by an indenture, is estopped denying title in the grantor to whom the rent was reserved. And if the grantee enter upon the whole of the lot conveyed, he is liable for the rent, though the grantor fail in showing title as set out in his declaration.</p> <p>An attorney at law cannot by agreement bind his client’s title to land, so as to work a conversion. '</p> <p>Nor will an agreement to refer a question of title, and accept a pecuniary compensation for an unlawful encroachment, the extent of which is to be determined by the referees, work a conversion, until an award is made. Hence, such an agreement would be no defence to an action for rent reserved under a subsequent conveyance.</p> <p>Tenant for life, under a strict settlement, having power to grant in fee on ground-rent, cannot bind the trustees or remainder-men by covenants, unless in pursuance of the power. But his agreements are evidence of boundaries, and of the situation and condition of the property at the time of the grant.</p> <p>To what particular piece of land descriptive words in a deed refer, is a question for the jury.</p> <p>To estop privies by a recital, it must be distinct, not general; hence, where there was a grant of land “along low water-mark to the mouth of a creek, before it was diverted and thrown to the north by the erection of wharves,” die parties and privies are not estopped from denying that there was any encroachment by the creek which interfered with the possession of the grantee.</p> <p>No right or properly in the privilege of erecting a wharf below low water-mark exists in the riparian owner on a navigable river. Hence, where, by reason of the position of other wharves, or the diversion of the course of a stream, the grantee, purchasing for the purpose of wharfing, is disabled from erecting a wharf of the entire breadth of the lot conveyed; he cannot, therefor, claim an apportionment of his rent. Such owner has a right to build to low water-mark; beyond that, the exercise of a privilege is dependent upon license from the state, or those to whom it has delegated that authority.</p> <p>A debt due by a husband, or one which he had agreed to pay, cannot be set off against the claim for rent due to his wife’s separate estate, although she has authorized him to receive the rents without accounting; and in the bill rendered by him, a deduction was made of part of the debt.</p> <p>Interest is recoverable in covenant for rent, unless there be special grounds for an exception to the rule.</p> <p>Pleas going to the whole of a count or declaration which answer only a part, are bad on general demurrer.</p> <p>Pleas by a tenant, that by an agreement of Ihe tenant for life, under a settlement under which the demise was made, and by the adverse possession of a stranger, and by the tortious acts of such tenant for life, he had been kept out of possession of part of the land, are answers to part only of the count for rent.</p> <p>Nil habidt in tenemetitis, to a count in covenant for rent reserved by indenture, is bad on general demurrer.</p> <p>The plea of eviction by a stranger under title paramount, must aver it to have been by title existing before the demise, and that there was an entry by the evictor.</p>

<p>In error from the District Court of Philadelphia.</p> <p>Dec. 13, 15 — Jan. 3. The plaintiff declared in debt for the penalty of a'bond. On oyer, the condition set out recited a fi. fa. issued at the suit of C. Francis, tested on the 6th Sept., commanding the sheriff (plaintiff) to levy the sum of $12,875, &c., of the goods, &c., of J. P. Norris, “ and whereas the sheriff has been notified that the goods levied on by virtue of said fi. fa. are not the property of defendant, but of J. R. Thompson et at, now if C. Francis, &c., shall at all times save, keep harmless, and indemnify the sheriff and his officers for or by reason of his or their executing said writ, and attaching, and making sale, by force and virtue of said writ, of the personal property of any person, supposing them to be the property of defendant, then defendant would indemnify him,” &c.</p> <p>The defendant pleaded by his third plea that the sheriff did not at anytime after the execution of said bond execute the writ of fi. fa. therein mentioned, and attach and make sale of the property of said Norris, or of any other person, &c., by force and virtue of said writ. The seventh plea was, that the only execution of the writ in the condition mentioned was upon certain goods there mentioned to be claimed by Thompson and others, which were sold by the sheriff for the>priee of $3290 59, which sum was never paid over to Francis, but was retained by the sheriff, and was to that extent an indemnity ; and if he had been damnified beyond that sum, it was for a cause not within the terms of the condition of the bond.</p> <p>The ninth plea was, that the only execution made of the writ was upon any surplus which might remain of certain goods after a prior writ of fi. fa. against said Norris, which had been previously levied by the sheriff on the goods as the property of Norris; and that there never was any surplus from said goods.'</p> <p>The tenth plea was similar to the seventh, adding that the excess of damage was from the unlawful and excessive conduct of the sheriff.</p> <p>The replication to the third plea set out the delivery of the fi. fa. at the suit of Francis. That at Francis’s request before the making of the bond, the sheriff had seized in execution, and was then in possession of certain goods (particularly set forth in another plea) as being the goods of Norris, subject and liable to be taken in execution by virtue of said writ, which goods, before the making of said bond, had been claimed by Thompson, of which Francis had notice, and thereupon he delivered the obligation, &c. That after the making of'said obligation, at request of Francis, by virtue of said fi. fa., and of divers other writs against Norris then in his hands to be executed, he sold the goods, &c., for, &c., which goods were at that time the proper goods of Thompson, « which said sum the sheriff paid over and distributed according to law.” He then averred a recovery by Thompson of $5575, in an action of trespass, for taking and carrying away the goods under and by virtue of said writ, which sum the sheriff was obliged to pay, as well as other money for expenses. That before the execution of said bond, the sheriff had in part executed the fi. fa. by attaching and levying the game upon the goods, supposing them to be the property of Norris, and after the execution of the bond he had completed the execution of the writ by selling the goods, &c., supposing, &c. To this defendant demurred, specially — 1, because the issue tendered of an execution of the fi. fa. was not joined, but a breach of the condition of the bond was set out; 2, argumentativeness; 8, because it was ambiguous in not stating under which of the writs of fi. fa. the sale was made, nor what disposition was made of the money.</p> <p>To the seventh plea, plaintiff replied: that after the said execution and sale he did not retain any part of the said proceeds, but paid the same to the plaintiff in a writ issued at the suit of one Baldwin, by which the sheriff had been commanded to levy $8479 upon the goods of Norris, which writ had been delivered to the sheriff before the fi. fa. mentioned in the plea, and remained in his hands to be executed at the time the other writ was to be executed, and that that money was no indemnity. The recovery, as stated above, was then set out, and the averment that the excess of damages was from his own wrong was traversed.</p> <p>As to so much of this rejoinder as related to the sum of' $3290 59, defendant demurred, and as to the residue joined issue.</p> <p>To the ninth plea, plaintiff replied, that the execution of the writ was not upon any surplus, but that the goods were levied and sold by virtue of several writs of fi. fa., of which Francis’s was one. The recovery by Thompson was then averred as before, which loss was by reason of the premises in the condition mentioned. To this defendant demurred, and assigned certain defects in form; and that the replication only answered a part of the plea, while it professed to answer the whole.</p> <p>The replication to the tenth plea, and the demurrer and rejoinder to the replication, were similar to those to the seventh, traversing the additional allegation. Besides these pleas, there were others going to the whole declaration on which issues of fact had been joined.</p> <p>Jones, J., in giving judgment for the defendant on the demurrer, said: There was but one question in the cause — whether the plaintiff as sheriff did execute the defendant’s writ, and did attach and make sale of the goods mentioned in the bond according to the true intent and meaning of the condition. The term executing the writ was the most comprehensive, and the others did not enlarge it. The cases upon the execution of a writ depriving the defendant of the title were inapplicable, for the question was, what was the plaintiff bound to do in order to execute the writ within the meaning of the condition ? The writ supplied the answer; it was by levying the debt, if the goods were sufficient, and paying the money to the plaintiff in the execution, or bringing it into court upon hi,s writ. The practice of bringing the money into court would not relieve him, if the goods belonged to a stranger; for that he must look to his indemnity. But he must be careful to comply with the conditions, and not bring the money into court, or distribute it according to law, supposing them' to belong to defendant when he is indemnified for executing a particular writ. If he pays over to one plaintiff, he executes that writ. To his security on that writ alone could he look, if the goods belonged to a stranger. In such case he must' take a twofold indemnity; first as to liability to a stranger who may be the owner; second, to the prior execution creditors, if the goods belong to the defendant. On electing to execute one writ by paying the money on it, which is the most important part, he should return the prior writs nulla bona.</p>

In error from the District Court of Philadelphia. Dec. 16. This was an action of trespass for entering the close of defendant, breaking and carrying away the soil.

<p>In error from the District Court of Philadelphia.</p> <p>Deo. 16, 17 — Jan. 10, 11. This was an action on a sealed policy of insurance of the defendants, effected by Jacob and Esau Insley, the plaintiffs, in their names, and in the name of every person to whom the property insured may belong, on the brig Isabella, in the sum of $5000. The first count laid the interest in the plaintiffs, and the loss by stranding on a reef through stress of weather. The second count laid the interest to the extent of $3000 in Huston and Child, to whom she had been hypothecated by the plaintiffs. The third count laid the insurance as on one-half of the valuation of the vessel on the half owned by Esau Insley ; and the fourth was to the same effect, averring the partial interest of Huston and Child. The defendants pleaded they had not broten the covenants ; covenants performed; that the vessel was not lost through the perils of the sea; that the plaintiffs were not interested in the vessel in the manner alleged; and that, though the policy was upon the joint interest of plaintiffs, yet Jacob Insley had disclaimed and denied the authority to insure, and had effected a policy on his interest elsewhere, and, upon the loss happening, had received indemnity.</p> <p>The first mate (objected to as interested) proved, that when the vessel struck on the Alligator Reef, where she was lost, it was about four and a half o’clock in the morning, rather before light, and she was going through the water about nine knots, with studding sails set, and that she was out of her course, owing to a mistaken allowance for the action of the currents. At the time of the loss, Jacob Insley was on board the brig in the capacity of supercargo, but did not interfere in the navigation of the vessel. The defendants gave evidence of the declarations of Esau Insley during his illness, that, if he were on board, he would run the vessel on a rock, as she was losing money, and the insurance would make it up. They then proved the order to insure $5000 on the brig, valued at $10,000, given by Jacob on behalf of himself and Esau Insley. Also a policy of insurance by the Atlantic Office of New York for the same amount as the one in question for account of plaintiffs : together with the affidavit of Jacob Insley, presented to the Atlantic Company at the time of the settlement of the loss by them, that this was the only policy on his half of the vessel, and that it was made for his sole account, and that the half of the vessel belonging to Esau ivas insured in Philadelphia by his orders. The plaintiffs proved the mortgage by them to Tompkins and Coale to secure two notes, which were afterwards endorsed to Iluston and Child, who were represented by the plaintiffs’ counsel.</p> <p>Findlay, J., instructed the jury, (in answer to plaintiff’s points, that the affidavits of Jacob Insley amounted to an abandonment of the policy by him, and, therefore, there could be no recovery but for one-half of the policy — and the evidence did not show a loss by the perils of the sea,) that, if the stranding was, by design of the insured, to defraud the underwriters, there could be no recovery, and that a loss by stranding was a loss by the perils of the sea.</p> <p>■As to the question of loss by negligence — If the vessel was provided ivith a competent captain and crew, when the risk commenced, it was no defence that one of the perils insured against happened through the negligence of the captain and crew.</p> <p>On the first point, he said: The affidavits, showing a misstatement to the other underwriters, did not amount to an abandonment; and the question, whose interest was insured by defendants, was one of fact. That a mortgaged vessel might be insured for its full value.</p> <p>The errors assigned, which were relied on, or argued by counsel, were: the charge as to the disclaimer by J. Insley; that there could be a recovery on all the counts; that the existence of the mortgage had no effect on the question of fraud, or on the right of plaintiff to recover. 8th. That, if the loss was by negligence of the master or crew, the plaintiffs might recover.</p> <p>There was a point made below as to the effect of a pendency of a foreign attachment; but it was not noticed in this court during the argument.</p>

In error from the Common Pleas of Northampton. Dec. 20. The plaintiff filed interrogatories in an attachment on a judgment against S. Miller. The garnishee, denying the possession of any goods, &c., admitted the defendant was entitled to an estate in remainder, which was directed to he sold by the will of defendant’s father after the death of the widow.

<p>A recovery in trespass against officers and agents of a corporation, is not evidence against the corporation without proof of privity.</p> <p>The effect of a deed of partition is not to alter the titles of the parties, but to designate the boundaries.</p> <p>Testator having devised certain lands to his children in severalty, and the residue in common, one of the children died, and his estate descended to his sisters. M., one of the children, joined in a conveyance with her husband of the property devised to her in severalty, which was reconveyed to him in fee. M. and her husband then joined in an indenture with the other devisees and heirs, which recited that some mistakes had been made by testator in the boundaries of the tracts devised; and to avoid hardships and difficulties an equal partition had been agreed upon. In this deed M.’s share was allotted to her and her heirs in severalty. The title to the lands previously conveyed to her husband is not thereby affected.</p> <p>A conveyance by husband and wife of the wife’s land, under the act of Assembly, though not made to a purchaser for valuable consideration, passes her title.</p> <p>Where more than six months had elapsed before the registry of conveyances to different purchasers, a registry of the earlier deed before the purchaser under the subsequent conveyance had recorded that, is notice to purchasers under the subsequent deed, although possession has been taken, and improvements made by tho second purchaser. And after such registry, the owner need not give notice of his title at a sheriffs sale of the other title, nor to one making improvements.</p> <p>The Commonwealth alone can object to a want of capacity in a corporation to hold land which it was not authorized by its charter to purchase.</p>

In error from the Common Pleas of Munroe. Dec. 22. Debt against a constable and his sureties on an official bond. The bond was conditioned that Musselman, the constable, should “ execute all writs and process to him directed, without delay and according to law.” This bond was produced by the clerk of the sessions from among the records of the court, but there ivas no entry of the filing or approval on the bond or on the record, or of the swearing of the constable.

<p>A mere direction to a devisee to pay a legacy does not create a charge on the land devised, but the devisee becomes personally bound by acceptance.</p> <p>And though he be named as executor in an action for the legacy, that may be treated as surplusage, if a legal ground for personal liability is set forth in the nar-r.</p> <p>And where terre-tenants are named, merely to charge their land, and the lands are not</p> <p>chargeable, though the jury has been sworn as to them, a verdict is properly taken against the defendant alone, whose sole personal liability was set forth in the narr.</p> <p>Where facts are set forth in the narr, from which a legal liability arises, the want of an averment of such liability, or of a promise to pay, is cured by vordict.</p> <p>Devisee, bound to pay a legacy, after a settlement of the amount due to the legatee, gave her a sealed acknowledgment of the settlement, and of the amount thereon found to be due. This does not operate as a merger of his previous liability, being but evidence of a settlement of the account.</p>

<p>Appeal from the Orphans’ Court of Montgomery.</p> <p>Dec. 27, 28. Elizabeth Jenkins presented a petition to the court below, setting forth a devise to J. and L. Jenkins, the respondents, of certain land, subject to the payment of a sum of money among the children of the testator, of whom the complainant was one; that the devisees had entered, and the legacy remained unpaid; and prayed a decree compelling payment of the legacy and a sale of the land.</p> <p>The respondents set forth in their answer, that prior to the filing of the petition they had sold the lands to divers persons whose names were set forth-. They also denied that any thing was due to the complainant on a settlement of accounts between them. Among other reasons, they alleged that J. Jenkins and complainant were tenants in common of a piece of land which they had demised to a tenant at a certain rent. That complainant subsequently entered and evicted the tenant, and had remained in possession ever since, and enjoyed all the profits.</p> <p>The replication averred, by way of demurrer, that this was immaterial ; the legacy not being thereby discharged.</p> <p>The court thereupon overruled this demurrer; and the complainant having neglected to reply further, they dismissed the petition. At a subsequent term, the complainant asked leave to file a supplemental replication, admitting the exclusive retention of the premises, but denying that she had ever interfered with her co-tenant’s occupation or enjoyment of half of the profits; which the court refused. *</p>

<p>In error from the Common Pleas of Bucks.</p> <p>Dee. 28. Assumpsit by McCormick, executor of Boyd, who was the guardian of Joyce, to recover the balance found due to the guardian, on settlement of his accounts in the Orphans’ Court.</p> <p>In 1837, Joyce being a minor above the age of fourteen, Boyd applied to the Orphans’ Court to have a settlement of his accounts, and be discharged from the guardianship. In this settlement, of which notice had been given to the ward, the credits claimed were for interest paid on a mortgage; repairs to buildings on the property of the ward; expenses and commissions. There were no claims for money advanced for maintenance or education. This account had been confirmed, and upon the trial of this action it was offered in evidence to show a balance due by the ward, but rejected by the court.</p>

<p>Dec. 28. Licey and others, administrators of Fretz, brought this action of debt, and declared on a bond, the proferí of which was excused by averring possession unlawfully obtained by the obligor, who had torn off the seal.</p> <p>At the trial before Krause, P. J., the plaintiffs gave in evidence the bond, of which the signature and seal had been torn off. The defendant proved admissions by the obligee that she had given the bond to the obligor to do what he pleased with it.</p> <p>The court, on the authority of 2 Kent’s Com. 439, was of opinion an assignment, or transfer, actually executed, was essential, and directed a verdict for the plaintiff.</p>

In error from the Common Pleas of Bucks. Dee. 29. The dogs of the defendant entered upon the plaintiff’s premises in the night-time and killed his sheep. The plaintiff brought his action before a justice for the injury. By an act of Assembly, applicable to that county, owners of dogs not keeping them housed or chained during the night are liable for the value of the sheep destroyed.

From ike Common Pleas of Bucks. Dec. 30. On the 4th April, 1839, Conrad being seised of certain real estate, confessed a judgment to Preston to secure $1000. Conrad then conveyed the land, subject to the judgment, to E. Yerkes, who conveyed to S. Yerkes, who conveyed to Auble, who conveyed to Lewis, all of which conveyances were subject to the judgment.

<p>Two of the sons of testator, who were his executors, having renounced, the Register at their request granted letters of administration to a stranger, to which a third son and two of the daughters assented. A fourth son, and a daughter, having petitioned for a revocation, held that the Register was bound to revoke the letters, and grant administration to the son who consented to act.</p>

In error from the Common Pleas of Montgomery. Dee. 31. — Case stated. Hanson died at Philadelphia, in 1842, leaving plaintiff in error his executrix, who proved the will in that county. In 1844, the report of an auditor was confirmed absolutely, by the Orphans’ Court, finding a balance due by the executrix to the estate.

In error from the Common Pleas of Bucks. Dec. 31. Trespass against the sheriff for levying on the goods of plaintiff. It appeared that Clemens, the plaintiff, called at the shop of Reigle, who was a carriage maker, and agreed to take a. carriage then being built, as soon as it should be completed, at a price to be fixed between $150 and $160.

In error from the Common Pleas of Montgomery. Dec. 31. This was an action against the administrator of Garber and his sureties, on the administration bond, to the use of the distributees of the intestate. The plaintiffs gave in evidence the proceedings in the Orphans’ Court on a citation to the administrator to file his accounts, which were referred to an auditor, who reported a balance due to the estate, which was confirmed.

<p>In error from the Common Pleas of Chester.</p> <p>Dee. 31 — Dan. 3, 4. This was an action of debt by Peck, a brigade inspector, against Worth, one of the commissioners for the county in which were the townships composing the brigade, to recover the penalty imposed by the act of 1844, for neglecting or refusing to deliver to the collectors copies of the returns of fines assessed on delinquent militia men.</p> <p>•• The plaintiff offered in evidence his list of delinquents and fines assessed, which was certified by himself “ to be a true copy of returns made to me, according to law.” It was proved this paper was handed to the commissioners within the time required by the act of Assembly, and was produced from their office. The defendant objected, but the court overruled the objection. No warrant had been issued by the commissioners pursuant to the statute, and the commissioners had declared they intended not to issue one.</p> <p>The defendant offered to show that in one of the townships composing the brigade, there had been no enrolment prior to the first Monday in May in the year in question. That on that day persons assembled, but there was no officer; that they then agreed upon a person to muster them, who made out a list of those present, and subsequently procured an appointment from the colonel as captain; that his return was in part of absentees on the first Monday, and was made to the colonel and not to the inspector, but not sworn to, as he never was commissioned. That, in another township, the person enrolling was never commissioned, and the returns were not sworn to. That, in another, the person enrolling had no commission, or appointment in writing. This evidence was rejected. The defendant was a member of the Society of Friends. The points were — 1. That the action should be in the name of the Commonwealth. 2. That the jury might find a verdict as low as one dollar. 3. The act was unconstitutional.</p> <p>Bell, P. J., told the jury the only question for them was the amount of the penalty, and as to that the minimum under the act of Assembly was one hundred dollars.</p> <p>The evidence admitted and rejected, and the points above stated, were assigned for error.</p>

In error from the Common Pleas of Chester county. Jan. 3. The plaintiff in error brought ejectment for two hundred and thirty acres of land, and the jury found for the plaintiff eighty-two and a half acres of land, being the land covered by the warrant of survey of July, 1882. These were all-the facts on the record, there being no bill of the exceptions, and no mention of the questions in dispute in the court below, or of the facts referred to in the opinion of this court.

In error from the Quarter Sessions of Chester. Jan. 6, 7. — This was a writ of error to a judgment on an indictment against the plaintiffs in error, the first count of which averred that they were supervisors of the roads in East Cain, “duly elected by the qualified voters of the township,” and had taken upon themselves the duties of the office ; and that they neglected the duties of the office, and did not open and mend and repair, or cause to be opened and mended and…

In error from the Common Pleas of Chester. Jan. 7. On the 1st December, 1841, judgment was entered by the prothonotary, under a warrant of attorney dated in 1834, for the penalty of a bond conditioned for the payment of half the amount of the penalty, partly on the 1st April ensuing the date of the bond, and the residue in ten annual instalments.

<p>The defendant having pleaded the statute of limitations, die plaintiff replied that the cause of action related to merchants’ accounts, on which issue was joined. The evidence proving that there had been an account stated, the defendant is entitled to a verdict; for accounts when stated cease to be merchants’ accounts within the exception of the statute.</p> <p>Where an account-sales has been rendered, and the consignor directs the balance to be shipped, making no objection to the items of the account, he thereby assents to it, and makes it an account stated.</p> <p>To take advantage of fraud, or absence beyond seas, as an exception to the bar of the statute, it must be replied.</p> <p>The consignor of goods being the legal owner, his dealings with the consignee, as by assenting to an account, bind the equitable owner, though known to the consignee. A. having advanced on goods to B., shipped them to C., who knew B. had an interest. C. rendered an account-sales to A., who assented to it; the account thereby becomes a stated account as to A. and B.</p>

Jan. 14 and Feb. 9. This was an action of account-render by Maria Willing against Peters, as bailiff and receiver of the rents and profits of real estate. Held: under the deed of Thomas Willing, several sums of money, being the proceeds of real estate sold prior to the deed of the plaintiff. There were also three pieces of real property in Moyamensing, held by him under the will, but there was no evidence of any receipt of rents subsequent to that deed.

Jan. 15. The plaintiff in error was a corporation, and had not entered bail in error. S. V. Smith moved to quash on that ground. By the act of 1817, a corporation cannot appeal without giving absolute security, since bail for the appearance would be nugatory. Now appeals and writs of error are put on the same footing; Schuylkill v. Thomas, 18 Serg. & Rawle, 431.

In error from the District Court of Philadelphia. Jan. 17. Assumpsit for goods sold in 1821-2, the credit for which expired in 1823. Plea, statute of limitations. The plaintiff proved the defendant went beyond seas in 1822, and there remained until 1841, when this action was commenced. The court (Stroud, J.) directed a verdict for the defendant.

<p>A. sold, to B. a quantity of metal as copper, which A. knew not to be copper, but a composition. A. is liable for the deceit in concealing his knowledge from B., who purchased on the representations of A., and was thereby deceived.</p> <p>Whether a narr. sets out no cause of action, or a good cause insufficiently averred, is the test of sufficiency after verdict.</p> <p>The fact that an article sold was inspected by the purchaser will not avoid the liability of the vendor, if it be a different thing from that sold, if its true character could not be ascertained by mere inspection. — Per Bell, J.</p> <p>Concealment of knowledge that the article sold was not in fact what it appeared to' be, or of such circumstances as would induce a purchaser to tost the article before buying, is an undue concealment for which the seller is liable in case for the deceit.— Per Kennedy and Bell, Js.</p>

Jan. 17. Case stated. The question was, whether the defend-' ants had lost their right of stoppage in transitu. In 1836, Tryon ordered certain hardware from Broomhead and Thomas, merchants in England, defendants, which arrived in Philadelphia by the Octorara, on the 15th of April, 1837, consigned to Tryon, and accompanied by an invoice and bill of lading.

<p>The breach of a municipal regulation, to which a pecuniary penalty is attached, payable by the master or owner, does not avoid a policy of insurance; hence A policy of insurance on an outward-bound vessel is not avoided by reason of not having on board a pilot, though a loss occurred on pilot ground in the bay, and at the time of the voyage there was an establishment of pilots at the port of departure, and the act of 1803 required such a vessel to take a licensed pilot, or forfeit a sum equal to half pilotage.</p> <p>Nor did the act of 1803, and the subsequent legislation on the subject, intend to create a statutory seaworthiness. But whether a vessel without a pilot is seaworthy, depends on the usage of the port, the competency of the master, &c.</p> <p>State laws and regulations, which are by implication incorporated into a public act of Congress, will be judicially recognised, and need not be pleaded or proved;</p> <p>Henee a plea, that a vessel had not on board a pilot, licensed by the State of Pennsylvania, when a loss occurred in the Delaware, is bad in form, for not also averring there was no pilot on board licensed by the states of New Jersey or Delaware; the laws and usages of which states are impliedly incorporated into the act of Congress of 1837.</p>

<p>Under the act of 1834, an administrator de bonis non is entitled to recover from the representatives of a former administrator the balance of an administration account for the purpose of distribution, although the fund consist of the surplus proceeds of real estate sold by the sheriff under an execution, and the account was settled prior to the act of 1834.</p> <p>And voluntary payments to persons claiming to be, but who were not, next of kin, will be no defence.</p> <p>Nor is it necessary to show debts remain unpaid.</p> <p>The act of 1794, limiting the right of representatives, &c., to claim to seven years, does not extend to the surplus of a sheriffs sale of the decedent’s real estate.</p> <p>The intention of the decisions reversing the rule of Steele v. The Plienix, was to restore the common-law rule of competency of witnesses. . •</p> <p>The widow of an intestate releasing to the administrator without consideration, and with an avowed intention to make herself competent, is a competent witness for the administrator to prove her marriage in an action to recover the proceeds of die intestate’s real estate from the representatives of a former administrator, which right of recovery mainly rested on the fact of the marriage.</p>

In error from the District Court of Philadelphia. Jan. 26. Assumpsit against partners. On the trial before Sharswood, J., the plaintiff called a witness, who stated that the-goods were ordered sometimes by one and sometimes by another of the partners. The witness kept a book containing the entries, the amounts being taken from the captains of the boats (who were members of the firm, defendants) on which the lime was delivered.

<p>Certificate from the Nisi Prius.</p> <p>Jan. 27. The only question in this cause was whether covenant would lie. In 1832, Weaver conveyed a larger lot to Maulé, reserving a ground-rent which he assigned to Stillé. In May, 1836, a deed, styled in the premises an indenture between Maulé of the first and Weaver of the second part, concluding “ in witness whereof the said parties have hereunto interchangeably set their hands and seals, the day and year first above written,” ivas sealed and signed by Maulé alone. That deed recited the prior deed and the assignment of the ground-rent, and conveyed part of the same property to Weaver under and subject to the payment of the whole of the ground-rent, with a covenant by Weaver with Maulé to pay the said rent and keep Maulé and his assigns owners, of the residue of the land, indemnified therefrom. The action was on this deed.v In the same month, Weaver conveyed by deed to Wager and others subject to this ground-rent.</p> <p>The defendants gave evidence that the purchase was made by Weaver and nine others, and the title was taken by him to be conveyed to Wager in trust to partition the land. In that partition the lot subject to pay the rent was allotted to one Heybcrger. None of the parties went into exclusive possession, but Weaver accepted the conveyance for the benefit of all the parties; and they paid the rent for some time.</p> <p>The plaintiff proved payment by himself of a certain amount of the rents to Still?, and a demand of Weaver.</p> <p>Burnsidé, J., ruled the action could be maintained, and the entry of Weaver for himself or partners bound him personally.</p>

<p>Assignee for creditors buying at his own sale, which was to be clear of encumbrances, and abandoning because a mortgagee would not release the difference between the amount of his lien and the bid, is chargeable with the amount of his bid.</p> <p>But the assignee in such case is to be allowed commissions, as if he had complied with his bid.</p> <p>And he is not chargeable with rents received after that time.</p> <p>Mortgagee proceeding against the land does not lose his claim to the fund with which the assignee is chargeable.</p> <p>Bail for stay of execution paying the judgments is entitled to subrogation as against general creditors.</p>

<p>Jan. 29 — -Feb. 5. Habeas Corpus. The return stated, that the prisoner had enlisted in the army of the United States, had deserted, and surrendered himself; and the matter had been decided by the Court of Common Pleas., It was proved that the prisoner was the minor son of the relator, who had never assented to the enlistment.</p>

<p>Jan. 31 — Feb. 1, 2. This was an action of covenant on an apportioned ground-rent by Mrs. Elizabeth Sergeant, the assignee of the rent, against Ingersoll, the tenant of-the land. On the trial before Burnside, J., it appeared that in 1811 O’Connor and wife conveyed to Mcllwhame, in fee, a large lot of ground in Philadelphia, reserving a ground-rent of $351 to the grantors in fee, redeemable within ten years on the payment of $5850. In 1814, Mcllwhame’s title to the land was conveyed to Seed, subject to the ground-rent. On thé 9th of October, 1818, Reed conveyed to Ingersoll, the defendant, «free and discharged from the aforesaid rent-charge, liens, and encumbrances whatsoever,” and with a further covenant by Reed that he would extinguish the said ground-rent of $351 within tlie time limited to extinguish the same, or within any extended time for extinguishing the same, and in the mean time indemnify and save harmless the said Ingersoll, his heirs, &e., from any charges, claims, or demands whatsoever thereof. The consideration of this conveyance was $11,250, which included the par value of the rent.</p> <p>On the 31st of October, 1818, O’Connor’s heirs conveyed the ground-rent of $351 to John Sergeant; and on the 6th of February, 1819, Sergeant by deed endorsed on the original ground-rent deed, covenanted to extend the period for redemption for ten years from that date.</p> <p>On the 30th of April, 1819, Ingersoll conveyed to Smith a piece of land, reciting it to be part of the lot conveyed by Reed to Ingersoll, clear of all liens and encumbrances. This deed was not recorded until the 21st of June, 1820. On the 1st May, 1819, John Sergeant, by deed endorsed on the last-mentioned one, and recorded with it, reciting that a larger lot, of which that conveyed to Smith was part, was subject to the ground-rent of $351 now vested in said John Sergeant, released the portion conveyed to Smith from the rent, provided that nothing should impair his right to recover the rent from the residue of the land.</p> <p>On the 3d May, 1819, John Sergeant, by deed reciting the creation of the rent, and his release of part of the land endorsed upon the deed from Ingersoll to Smith, and that the time for redeeming the rent had been extended, in consideration of $5265, conveyed the rent to Elizabeth Sergeant, the plaintiff.</p> <p>The defendant proved the rent had been purchased and paid for by Reed through John Sergeant; that Sergeant and Reed had married sisters, and that Reed had paid the rent until 1829.</p> <p>John Sergeant was the step-son of the plaintiff; and, on his examination, stated he was not the agent of the plaintiff in purchasing the rent, and never knew of it until called upon to sign the deed, nor did he know whether she employed a scrivener; that he received from Reed a paper to show that he (J. S.) had received none of the money, and had no interest in the matter. His understanding of the object of the arrangement with Ingersoll, was to give Reed the use of the money. «My position was that of a friendly trustee without interest: not even a trustee — merely to execute the papers.”</p> <p>. It was also in proof that Smith and Ingersoll purchased the lot together; and that on the winding up of the concern there was a balance due by Smith, which was deposited to Mr. Sergeant’s credit in bank, and by him paid to Reed.</p> <p>The plaintiff also gave in evidence a statement of the amount of the purchase between Reed and Ingersoll, signed by the former, in which it was stated that “ Ingersoll having paid to Reed the principal of the ground-rent, viz. $5850, in account settled this day, Reed agrees to extinguish the ground-rent within the time limited by the deed if the same is not extended, October 9,1818.”</p> <p>His honour instructed the jury that there was not upon the face of the deeds notice to Mrs. Sergeant of Ingersoll’s interest, nor sufficient to put her on,inquiry; and that there was not sufficient evidence to warrant the jury in finding that Mrs. Sergeant had notice, or notice enough to put her on inquiry.</p> <p>These were the only points passed upon by this court.</p>

<p>The grant by the legislature of an exclusive right to the water-power of a navigable stream, does not pass a title to the corpus of the water, or prevent its use for the ordinary purposes of life. ' ;</p> <p>Hence, where the legislature granted the privilege and title to all the water-power of the river Schuylkill, and made a subsequent grant to the districts of Spring Garden and Northern Liberties, of the right to erect works and Supply their inhabitants with water from the river — and such works were erected to be propelled by steam — such grant and the acts done thereunder, are not in violation of the previous grant of the water-power.</p>

In error from the Common Pleas of Philadelphia. Feb. 9,’ 10. This was a feigned .issue from the Register’s Court to try the validity of a paper purporting to be a will of Conwell.

<p>Where an act of Assembly imposes a punishment of imprisonment in the penitentiary or county jail, at the discretion of the court, a sentence to imprisonment in the county jail at hard labour, is illegal; though hard labour is, by a prior statute, a necessary part of a sentence to imprisonment in the penitentiary.</p> <p>The Supreme Court has the power to modify an illegal sentence of an inferior criminal court; and this, it seems, as well before the act of 1836, as under that act.</p>

<p>In error from the Common Pleas of Philadelphia.</p> <p>Feb. 28. The facts of the case are stated at length in the opinion of Mr. Justice Burnside. The only error assigned was the charge of the court that the decree of the Orphans’ Court was not conclusive. In the answer to the rule in that court, Mr. Dickerson alleged he had always been ready and willing to pay the balance in his hands, excepting $100 which he retained for his fees; and that he claimed a lien for that amount on the fund in his hands.</p>

In error from tbe District Court of PMladelpMa. Feb. 28. Ejectment. Root, the plaintiff, claimed a small strip of land adjoining the defendant’s land, under a conveyance from Hopple in 1841. The defendant proved that in September, 1840, J. Root, the plaintiff, joined in a deed with Ms wife, who, with the other parties thereto, including Crock, the defendant, were heirs and devisees of George Crock.

In error from the District Court of Philadelphia. Feb. 29. Smith declared in assumpsit for goods sold, and on the money counts. The only pleas material here were non assump. and actio non, infra sex annos ; replications, merchants’ accounts, and action accrued within six years. The plaintiff’s claim was for powder sold to Lowber — the items of his account commencing in 1833.

<p>In error from the District Court of Philadelphia.</p> <p>Feb. 29. Esling having been arrested on a capias in an action of trespass vi et armis, gave bond for appearance with Devereux as his bail. This instrument recited that Esling was arrested, &c., in a certain action of trespass on the case.</p> <p>On the trial of the action on the bail-bond, the recovery in the action of trespass was proved — the affidavit to hold to bail laying a violent beating as the cause of action.</p> <p>Jones, P. J., was requested to instruct the jury that the variance was fatal; he, however, left it to them as a question of fact, whether the record. of the action given in evidence was the one referred to in the bond. This was the error assigned.</p>

March 1. Motion to set aside an execution issued by the administrator de bonis non of A. Barker. The record .showed that an action was instituted by P. Barker, administratrix of A. Barker, in 1834. The declaration then filed was upon a bond, in which the defendant acknowledged himself indebted “ to the persons legally entitled to the division of the estate of A. Barker, deceased but the names of the obligees were not averred.

March 6. Assumpsit. The declaration averred in the first count a purchase, by Phillips, on the 1st July, 1840, from Levering, of a judgment, which he held against one Quinton, which was entered in the D. C. C. C. P., S. T., 1839, No. 23, on bond and warrant of attorney, for $2000, the real debt being $1000, in consideration of $1000 to be paid by Phillips, in two instalments of $500: one on the 1st August, 1840, and one on the 1st October following; the said judgment to be…

March 7, 8. The original narr. set out a contract by Kohn and Catherine, wife of John Wright, whilst sole. Seven years after it was filed, and after a jury had been sworn, a new narr. was filed, which laid a contract by Kohn, John and Catherine Wright, his wife, and on this a plea was endorsed. It was stated that the original had been mislaid.

<p>Under a plea of payment, evidence of payment in goods is admissible, and the rules of the Common Pleas do not alter this rule.</p> <p>A contractor is a competent witness for the mechanic on the trial of a sd.fa. on his claim. Semble, evidence that there were two contractors when the claim only names one, is immaterial where the plea was not in abatement.</p> <p>A claim “ for painting done in and about the erection of a house, and the necessary materials provided therefor, from the 1st April, 1842, to 1st October, 1842, and within six months last past,” is sufficient.</p>

Iir error from the District Court of Philadelphia. March 9. — Ash brought trespass quare clausum fregit against' McGill, his co-tenant, Smith, the tenant in possession under McGill, and Albright. In the count on which the verdict was entered, he declared generally for an expulsion from his house.' It appeared on the trial before Jones, P. J., that Ash having recovered one-fifth of the house, in ejectment against McGill, had been put into possession by the sheriff.

In error from the District Court of Philadelphia. March 13,14.

March 15. The plaintiffs in this ejectment were the devisees of George Wagner, who was the heir of his wife Mary, under the intestate law, she having died without issue or kindred. On the trial before Huston, J., it appeared that George Wagner and Mary were married in 1810.

<p>1st error from the District Court of Philadelphia.</p> <p>March 16. Assumpsit for freight on wheat. Pleas. — Deviation, whereby the voyage was broken up: Deviation and overloading, whereby the wheat was injured: An agreement not to deceive other freight on board, and that other freight was received whereby a leak occurred, and the wheat was injured. On the trial there was evidence that the , plaintiff had agreed to carry certain wheat from the Rappahannock direct to Philadelphia; and that, without necessity, he had put into the Piankatank river, and taken on board a deck load of wood. On the voyage to Philadelphia, the vessel sprung a leak, in consequence of stress of weather, and the wheat of defendant was injured.</p> <p>The plaintiff’s points, on which the errors were assigned, were, that, if the master unnecessarily deviated, the owners were answerable for any subsequent loss to the cargo during the voyage. 2. If there was a contract for the exclusive use of the vessel, an unnecessary deviation, and taking in additional freight, cast upon plaintiff the responsibilities of insurer of defendant’s goods. His honour instructed the jury the rule was not so broad but the master and owner were liable for any damage actually resulting from the deviation or breach of the contract.</p> <p>On the trial, the defendant pleaded a former recovery in the admiralty, to which there was a demurrer. The record of the District Court of the United States given in evidence, and referred to in the plea, showed that, in a libel for the damage, a decree was made since this action was brought, and that there was an allowance for the freight there made. There also appeared on the record an appeal entered from this decree to the circuit court. It was admitted this was the decree referred to in the plea, and the cause was argued as if the plea set out the record given in evidence, and it appears so to have been treated by this court; for, otherwise, the fact of the appeal taken did not appear in the plea demurred to.</p>

In error from the District Court of Philadelphia. March 16. Hubert, Butler and wife brought ejectment and showed title in Samuel Murray, and a deed from him, in 1819, to Delia Chase, who was the wife of Butler. Hubert had a deed for one-half the premises, from Butler and wife, in 1841.

<p>A judgment confessed by an executor to A. & B.his wife, for the sole and separate use of B., is prima fade evidence that the debt was due to the feme covert, and hence within the saving clause of the act of 1797.</p>

<p>In error from the Common Pleas of Pike.</p> <p>March 20. Depue brought an action to the use of M. Depue, on a note alleged to have been signed by Place. The defendant alleged the signature was a forgery. The note at the time suit was brought belonged to the legal plaintiff, and his varying declarations of the consideration for the note and the mode he obtained it were proved, hut whether made after suit brought, and consequently after the transfer of the note, could not he ascertained from the paper hook, and the refusal to rule them out was the first exception. Among other things he said it was given for cherry and curled maple lumber purchased by the defendant. The defendant examined a witness to show he never did purchase so much of that kind of lumber at any one time; this was the second exception.</p> <p>The plaintiff called a justice of the peace, who stated Place had served as constable in his office. He then produced twenty returns to writs signed “William Place,” and said he had no doubt he had seen Place sign some of these; they were handed in and received as returns: but he was unable to specify any particular one which he had seen him sign. He believed there were none of them but were signed and returned by Place personally, or sent by him to the office.</p> <p>The plaintiff then offered the returns in evidence, but they were rejected, and this constitutes the third and only material error assigned.</p>

<p>Under a judgment revived in Philadelphia county, in the Supreme Court, in 1827, a pi. vend. ex. issued to Northampton, to sell lands seised under a test. fi. fa. in 1806, and a sale was made to plaintiff’s agents; but the writs were not entered in the protlionotary’s office. Defendant moved to set aside the sale, and there the record ended. Defendant had given a mortgage between the date of the judgment and of the execution on which the sale was made, under which the tem-tcnants claimed as purchasers. The court refused to direct a deed to be acknowledged more than twenty years after the sale, there being no proof of payment of the purchase-money or perfection of the sale, and there being tem-tenmts purchasers for value, without notice of the proceedings.</p>

In error from the Common Pleas of Northampton. March 22. Assumpsit against Fegley and Goff, as endorsers of a note drawn by Vanhorn. After award for plaintiffs, 'defendants appealed. On the trial, plaintiffs, by leave, filed an additional count on a promise to pay the note; but the court rejected a new count for goods sold.

In error from tbe Quarter Sessions of Carbon. March 22. Indictment for cutting timber under the acts of 1824 and 1883.

In error from the Common Pleas of Lehigh. March 23. Case for diverting a water-course. The case was this : Frey was the owner of a large tract, through which a small creek ran, and on which a fulling-mill was erected as early as 1815. To supply this mill, a race had been dug through his land, to which the water of the creek was partially diverted by a small dam erected by the license of an adjoining proprietor.

<p>Testator devised « as to such worldly estate wherewith it has pleased God to bless me, I give and devise to my son J., the lot whereon I now live, to hold the same to him during his natural life, and after his decease to his children lawfully begotten, share and share alike.55 J. takes an estate for life, and his children remainders in fee-simple.</p>

In error from the Common Pleas of Bucks. March 27. Case stated. — Isaac Gruver died intestate, without wife or children, leaving a father, mother, brother, and sisters. His father died nine days after, and his widow administered with the will annexed.

From the Common. Pleas of Bucks. March 27. On the 7th of Feb., 1846, judgments were entered against Jenks, on warrants of attorney, dated on the 4th. On the 17th, he made an assignment for his creditors, and the question was, whether the judgments were entitled to a preference out of the proceeds of the real estate. It was proved to have been the intention of the assignor, to prefer certain of his creditors, by means of these judgments.

In error from, the Common Pleas of Montgomery. March 27. A precept issued from the Register’s Court to the Common Pleas, reciting the objection of the plaintiff in error, that certain writings presented for probate, averred to be the last will and testament, and codicil of Hoxworth, were not published as his last will and testament, or, if executed by him, were obtained by undue influence, and that he, on account of imbecility of mind, was incapable of making a will, and…

March 28. Petition for the conveyance of the legal estate to the cestui que trust, devisee of Bela Badger. The only question raised was the jurisdiction of the court, and that depended on the question whether the trust was in the executor virtióte officii or not.

March 28, 29. In 1829 B. Ernest died intestate, leaving á widow and five children, and the issue of a deceased child — seised of certain real estate, consisting of three tracts. On the 11th August, 1830, the heirs by deed conveyed to the widow for life, in lieu of dower, which she released, a tract of forty acres and ope hundred and eight perches, parcel of the above.

In error from the Common Pleas of Delaware. ' April 3. Assumpsit by King and wife to the use of J.. King, jun., on a note held by the wife before her marriage. It appeared that, by an antenuptial settlement, this cause, of action had .been assigned to J. King, jun., in trust for the separate use of the wife of plaintiff during her life — remainder .tp the uses of her will, and in default thereof .to her .heirs.

In error from the Common Pleas of Schuylkill. April 4. Debt. Salmon, by agreement under seal, had covenanted to deliver two boat-loads of coal, weighing sixty tons, to Larer, before two certain days, in consideration of the assignment of an unexpired term in certain coal lands.

In error from the Common Pleas of Chester. April 4, 5. Trespass quare clausum fregit. Pleas: that defendant and those whose estate he had, from beyond the time of memory, had a right to enter and cleanse a certain ditch, which was the trespass complained of. 2.

<p>In error from the Common Pleas of Schuylkill.</p> <p>April 5. Debt upon a negotiable note, at five months, dated November 1, 1848, for $70 50. Defendant having given notice,. proved that 'this, with other notes, had been obtained by Beveridge, the payee, on an undertaking to find iron ore in the defendant’s-land, under a promise not to use them until he had fulfilled his agreement.</p> <p>The plaintiffs called Wheeler, who said he had received a note of plaintiffs’ from Beveridge, in December, 1843, for $15, and that plaintiffs, about that time, paid Beveridge $6, and assumed a debt of $5. Another witness testified that plaintiffs had assumed a debt of $58 81, due by Beveridge in November and December, 1843, at his request, and had since paid it.</p> <p>The admission of the evidence was the only error assigned.</p>

In error from the Common Pleas of Chester. April 5, 6. Assumpsit to recover back part of the purchase-money paid by plaintiff to defendant.

In error from the Common Pleas of Chester. April 6, 7. A judgment was confessed by Henry Olwine in 1882. In 1845, an attachment execution issued thereon, which was levied on a debt due to him by Ralston, executor and trustee, but no return or appearance as to the original defendant. On the trial of the soi. fa. it appeared that one Evans In queathed a sum of money to the children of Henry Olwine, ston having been appointed executor and trustee.

In error from the District Court of Philadelphia. April 10. Assumpsit to recover back a sum of money paid by plaintiff to defendant on a ground-rent reserved in a conveyance between them, and also the amount paid for taxes. It appeared that J. Kitchen devised his estate equally among his wife and five children.

<p>A., the owner of a large lot, erected buildings on either side of an alley opening from a public street. The building furthest from the street stood on the line of the alley, and had an opening into it; but the entrance was on another alley which led to another public street. The building adjoining the street stood some distance from the line of the alley. Held, that by opening doors into the alley, the owner had dedicated it in part to the use of the houses on that side, and that a sheriff’s sale of the land passed this right, an appurtenance by implication.</p>

April 12. Motion to take the money raised by a sheriff’s sale of the defendant’s real estate out of court. A judgment had been recovered in February, 1843. Subsequently real estate descended to the defendant. In 1847, the cause was certified to this court in error. A fi. fa. had previously issued; and under an al. ven. ex., issued February 8, the property was sold by the sheriff on the 6th of March. On the 19th February a sci. fa. to revive had issued.

<p>A., a resident of Philadelphia, assigned to B., of the same place, certain real and personal property within the state of New York, in trust to pay a creditor resident in London in the first instance, and then to pay creditors generally. This deed not being recorded under the act of 1818, in .the county of the assignor's residence, may be avoided by creditors.</p> <p>.This right to avoid the deed, as against creditors issuing executions since the insol vency of the assignors, is vested exclusively in the insolvent trust of A., who may proceed by action without a previous demand upon the voluntary assignees.</p> <p>The right of the insolvent trustee to recover from the voluntary assignee funds passing under the voluntary assignment, is restricted to such as have not been distributed prior to the commencement of his action, and notice or knowledge in the voluntary assignee of the intention of such action. And it is for the insolvent trustees to prove notice or knowledge in the voluntary assignees of the intent of the action.</p> <p>An assignment of all the goods and chattels of the firm of R. & I. P., and of certain specified real estate, in trust to pay certain creditors — then to pay all other creditors of the firm who should release the firm — is voidable by creditors^ for want of words passing all the estate of those whom*it was stipulated should be released.</p> <p>Where the assignees, under such deed, had filed their account in the Common Pleas under the act of Assembly, and the account had been advertised, and was then referred to auditors for distribution prior to the commencement of the action by the insolvent trustees disaffirming such voluntary assignment; and after action brought, but before narr. filed, the report of the auditors distributing the fund among those claiming under the voluntary assignment had been filed and confirmed, and distribution had been accordingly made under certificates issued by the prothonotary to each creditor, such decree and payment, in the absence of fraud, protects the voluntary assignees from a claim by the insolvent trustee for so much of the funds received.</p> <p>Though the auditors could not decide on the rights of those not claiming under the deed, unless at the request of the assignee, yet the Common Picas having jurisdiction over the subject-matter, had the power to interfere on the application of such claimants, and stay distribution under its decree until the adverse rights were determined.</p> <p>The receipt of dividends by creditors who are also insolvent trustees, does not amount to an affirmance by them, in the capacity of trustees, of the deed under which such dividends were received.</p> <p>Insolvent trustees recovering funds from a trustee under an assignment fraudulent in law, elect to treat the assignment as entirely void; hence the creditors releasing under the deed, by bringing in the amounts received by them, may come in pari passu with the non-releasing creditors. — Per Rogers, J.</p>

<p>In error from the District Court of Philadelphia.</p> <p>April 24. The plaintiffs filed a copy of a bill of exchange, drawn by them in New York “to the order of T. Hunn, cashier of the National Bank,” on defendants, by whom it was accepted. The suggestion of defence was, that the bill had never been endorsed by Hunn. The court gave judgment notwithstanding, and this was the question argued here by</p>

<p>Certificate from the Nisi Prius.</p> <p>April 24. The first count of the1 declaration in this case was against defendants as acceptors of a bill of exchange. The second count was against defendants as acceptors of a bill drawn by Crosby on defendants under a written authority, and averring that the bill was taken by plaintiffs on the sight of such authority, and relying thereon.</p> <p>The bill was dated Feb. 12, 1840. On the trial, plaintiffs read two letters from defendants to Crosby — one Nov. 21, 1839, announcing they had credited him on account of certain shipments made; the other dated Jan. 21, 1840, in which they said, “In case you are not in funds in time for the dues of February, your valuation on us will be protected, and must request you not to draw under sixty days.”</p> <p>They then offered the deposition of Crosby, the drawer of the bill, to prove that it was drawn pursuant to the authority in the letter of Jan. 21. The defendants read the statute of Louisiana, where the bill was drawn, which gives 10 per cent, damages on the return of such bills.</p> <p>The rejection of the witness was the question argued by</p>

<p>Certificate from the Nisi Prius.</p> <p>April 24-5. Ejectment. In 1818, by an ante-nuptial settlement, the property in question was conveyed to a trustee for the separate use of Ann Dunton, afterwards married to Hardy, and upon such further trust, that the trustee should convey to such person and uses as said Ann, by any writing under seal, should, notwithstanding her coverture, limit and appoint; with a further proviso, that said Ann might, by any deed or writing under her hand and seal, revoke, alter, and change the uses, and declare- new ones.</p> <p>In 1831, Ann Dunton and her husband conveyed this property to F. A. Jennings, to secure certain acceptances to be made by Jennings, with a power of sale upon notice and neglect to pay.</p> <p>In March, 1832, Jennings, under a deed purporting to be in execution of the power, conveyed the premises to Mills, who on the next day reconveyed to Jennings.</p> <p>-In June, 1842, Ann Hardy, the cestui que tmst, and her husband, by deed-poll, conveyed tbe property to, and to tbe use of Jennings, in consideration of one dollar. Neither of her deeds referred to the settlement or the power.</p> <p>The present defendant was a purchaser for value, by divers mesne conveyances.</p> <p>The court directed a verdict, pro forma, for the plaintiff, who was the trustee of Ann Hardy.</p>

<p>Exceptions to bail are waived, by declaring.</p> <p>Since the act of 1836, the plaintiff excepting to the bail taken by the sheriff; may rule him to bring in the body, and the court may compel obedience to the rule by attachment.</p>

<p>In error from the District Court of Philadelphia.</p> <p>. April 26. Replevin. The plaintiff in error avowed severally for three rents in arrear: one of £7,10s., one of £8 and £4, 10s., and one of $14. On the trial, before Stroud, J., it appeared that the land on which the distress was made had been conveyed by Pidgeon and Sarah, his wife, by two deeds, in 1748, reserving to them and the heirs of the wife two ground-rents of £3 and £4,10s. Sarah survived her husband and intermarried with Goodman, whom she survived, and married McElroy. She died prior to 1800, without having had issue, and McElroy survived until 1833. The avowant was one of his devisees, and these rents had been assigned to him in the partition between the devisees of McElroy.</p> <p>The avowant proved, that for three or four yéars previous to 1820, rent had been paid by the agent of the guardian of the owner of the property; that in 1820 McElroy received from him $25 22, being the amount due for rent, deducting $25 36 for taxes. From 1821 to 1831, $14 per annum was paid for the rent. In 1832-33, there was evidence rent had been received from the tenants. From 1834 to 1841, inclusive, excepting 1836, the receipts of those claiming under McElroy to the plaintiffs were shown for the yearly rent of $14. In 1836, the receipt was for $11 22. From 1800 to 1841, McElroy and his estate were assessed for ground-rents, but for what amount did not appear, and from 1808 to 1841 he was shown to have paid the taxes.</p> <p>To a request for instructions that the jury were bound to presume a'good title from a payment for twenty-one years, his honour said: I do not instruct you.that from such facts you are bound to presume that the defendant has a good title to the ground-rent, but if you should conclude, from all the facts of the case, that a ground-rent has been paid for twenty-one years and upwards to the defendant, and you shall deem that sufficient evidence of a ground-rent having been created by deed, which may have been lost, you are at liberty to do so.</p>

<p>In error from the District Court of Philadelphia.</p> <p>April 27. Fossard, having a judgment against Fiorelli, delivered a fi. fa.' to the sheriff, under which certain goods in the shop occupied by Fiorelli, were levied on and sold. There was no evidence of special instructions other than a direction to go to the shop at which the levy was made. At the time of the sale, certain articles were claimed by strangers, and were at once given up with the oonsent of Fossard. It appeared that one Pettrick had certain busts, &c., lying in Fiorelli’s shop, and being absent from the city, no notice was given or claim made for these goods, and they were therefore sold by the sheriff as Fiorelli’s. Pettrick brought an action against the sheriff, and recovered, (a) and the sheriff then brought this action on the implied agreement by Fossard to indemnify him for levying on these goods. Fossard attended at the sale, and bought some of the articles belonging to Pettrick.</p> <p>The court nonsuited the plaintiff.</p>

<p>In error from the District Court of Philadelphia.</p> <p>May 1. This was an action by Combs, a member of the bar of Kentucky, to recover compensation from the defendant, as their agent. The defendant was a claimant on the Schuylkill Bank, on account of fraudulent issues of the stock of the former by the latter, as it was alleged. The plaintiff proved that he had acted for the Kentucky Bank in some parts of the business of procuring evidence, &c., for the prosecution of their claim. The suit instituted for that purpose against the Schuylkill Bank resulted in a decree for upwards of ¡§1,000,000, from which an appeal had been taken.</p> <p>His honour, Sharswood, J., instructed the jury, “ That as to the amount of their verdict, the following considerations (inter alia) might with propriety be weighed by the jury: 1. The importance of the business intrusted to the defendant; at least as it was deemed at the time by the parties. In this view the jury may consider the extent of the claim of the Kentucky Bank on the Schuylkill Bank.” And whether this was erroneous, under the evidence, was the only question. The following facts were those referred to by the counsel during the argument, as showing the instruction to have been erroneous. It appeared that prior to March 5, 1842, Combs had been to Texas, ineffectually endeavouring to procure the return of one Levis to this state. Levis was the cashier of the Schuylkill Bank, against whom indictments were pending, and it was supposed could give information as to the fraudulent issue of stock, which could not otherwise be discovered. On that day Combs wrote the attorney of defendants, proposing to act for the bank in various ways upon receiving the amount of his expenses, and a commission on all received on a compromise or recovered over $150,000.</p> <p>•In reply, the defendants stated, the only important object at that time was the procuring the pardon of Levis from the governor of Pennsylvania. They declined the terms offered, hut said that in case of his aiding in doing this they would make him a fair compensation. In the mean time he wrote that he had done many things, as if his agency was to he used; hut if it were not, he would he gratified by having benefited-the bank and the state.</p> <p>It was also in evidence that, on the receipt of this letter, the board of directors of defendants’ determined not to employ him in conducting the suits, or any other business arising out of the claim. And the defendants relied on the fact of their refusal to employ plaintiff in any other matter than the pardon, to show that the extent of their claim against the Schuylkill Bank could not enhance this collateral undertaking.</p> <p>On the 15th May plaintiff wrote defendants, complaining of his want of authority to act, and saying his mission was done, as he had no instructions or power to do more than he had done.</p> <p>In the preceding month the attorney-general had entered a nolle prosequi on all the indictments found against Levis. It did not appear that Levis’s testimony was read on the hearing of the bill against the Schuylkill Bank; and it was proved by one of the judges not to have been considered. It appeared also that the plaintiff had acted generally in the business of the defendants, and communicated to them constantly what he had done. But there was no distinct disavowal of his agency, other than the letter of March 5.</p>