Volume 7 — Sergeant & Rawle's Pennsylvania Reports

In Error. ERROR to the Court of Common Pleas of Dauphin rnnntv county. ■ -This was a scire facias, on a recognisance in the Orphans’ Court, to recover the value of a share of an intestate s real , . .

MANDAMUS; RULE to shew canse why a mandamus should not issue the defendants to grant to the relator, Duffy, a certificate issued by the president, attested by the treasurer, sealed with the seal of the said company, and transmit a duplicate of the same to the State Treasurer, for a iudsrment . . , ~ _ • i J . by the-said Duffy against the same company, m the Court of Common Pleas of Lancaster county, amounting to 1899 dollars and 20 cents, with interest from the 22d March,…

In Error. ERROR to the Court of Common Pleas of Dauphin county, m which a bill or exceptions was returned. Bucher, The plaintiff below, (the administrator oíJacob * • * » Boas,) had obtained a judgment against Dorsheimer, the defendant below, and plaintiff in error, on which a scire facias post annum etdiem was issued, to which the defendant • ' *■ payment and set off.

In Error. ERROR to the Court of Common Pleas of Lancaster count)-* This was an action of assumpsit brought by the plaintiff below, James Gillespy, against John Withers, George Withers, and Michael Withers, to August Term, 1812, to recover for work and labour performed for the defendants. The writ was sued out on the 27th May, 1812.

<p>In Error.</p> <p>• ERROR to the court of Common Pleas of Lancaster county. •</p> <p>This was an action brought by the defendants in error, ° . 3 Montgomery and Jane bis wife, against William MiCitllough, executor of George M‘Cullough, deceased. The action was upon a penal bill dated the 14th October, 1779, whereby the said George bound himself to the said Jane Montgomery, (then Jane Grubby in the penalty of 300 pounds, currency, conditioned for the payment to the said Jane of her legacy as mentioned in her father’s will to the full satisfaction of her mother, the widow Grubb. Very soon after the date of this penal bill George MiCullough married Mrs. Grubb, the mother of Jane, and sole executrix of the will of her husband, Thotnas Grubb. This will was dated the 29th May, 1777, and the testator died in May, 1779. He queathed to his daughter Jane, besides specific legacies of a horse, saddle and bridle, with a bed and its furniture, the sum 0j 150/. current money of the State of Pennsylvania, when s^e came to ^le aSe °f eighteen years.</p> <p>On the trial of the caus.e in the Court below, the defendant to°k three bills of exceptions to the opinion of the Court admitting evidence offered by the plaintiffs in reply, and proposed eight questions, on which the opinion of the President was delivered in writing and placed on the record.</p> <p>1st. The plaintiffs offered to prove by the oath of Jeremiah Brown, that Thomas Grubb, was considered the richest man in Little Brittain township, had about 1000 acres of land, “a large stock of cattle, and a great deal of personal property, which went into the hands-of George McCullough, by his intermarriage with the widow.” To this evidence'the defendant objected, but the Court admitted it.</p> <p>2d. Bill of exceptions. The plaintiffs offered to prove by Levi Sidwell, that after the death of George M-Cullough, Isabella McCullough late Grubb, when on her death bed, told him, that she was dissatisfied, and nothing could satisfy her, but the payment of the legacy to Jane in specie. To this evidence also the defendant objected, but the Court admitted it.</p> <p>3d. Bill of exceptions. The plaintiffs offered in evidence the record of an action, brought to June Term, 1798, by Jane Evans, then a widow, now Jane Montgomery, one of the plaintiffs in this cause, against George McCullough and Isabella his wife, executors of Thomas Grubb, deceased, for the recovery of the legacy left to her by her father, the said Thomas Grubb—Also another record of a suit brought to August Term, 1806, by the present plaintiffs against the said George McCullough and wife, executors of the said Thomas Grubb, for the recovery of the same legacy, and a scire facias after the death of the said George McCullough, against his executor, in order to bring him in and make him a party to that suit. To this evidence the defendant objected, but the Court admitted it.</p> <p>The defendant had given in evidence the following facts. On the 6th of March, 1781, George McCullough and wife, deposited in the Orphans’ Court of Lancaster county 150/. in continental paper money, in payment of Jane Grubbs legacy, alleging that this identical money had been received in payment of a debt due to the estate of Thomas Grvbb. On the 29th of June, 1791, the said MíCulloue-h and wife, settled in 1 , . ,, , the Orphans' Court, their administration account on the estate of Thomas Grubb, in which they were credited foi 150/. paid to Jane Grubb in full of her legacy. But being dissatisfied with the opinion of the Orphans’ Court on several items of the account, they appealed to the Supreme Court at January Term, 1792, and that Court on the 20th of March, 1804, reversed the judgment of the Orphans’ Court as to the sum of 87 pounds 10 shillings, directed to be charged against the accountant, and ordered that the accountant should be credited with that sum. •</p> <p>The Court were requested by the' defendant to give the following matters, in charge to the jury.</p> <p>1st. That the law is, that a bond not sued within twenty years after it becomes due, and on which there is no payment made, or acknowledgment of the obligor, is to be presumed paid without any evidence given of payment.</p> <p>2d. That the jury, upon the plea of payment with leave, are bound to presume every thing paid, which in law or equity ought not to be paid.</p> <p>3d. That the settlement in the Orphans’ Court, the appeal to, and the decision of the Supreme Court thereon, is conclusive evidence of the satisfaction of the legacy by the credit therein obtained for the same.</p> <p>4th. That the record of the Orphans’ Court of the payment of the money into the Court, the settlement of the account in the Orphans’ Court, the appeal to the Supreme Court,, and its decree,thereon, is plenary evidence of the full satisfaction of their mother, widow Grubb, according to the condition of the bond sued.</p> <p>5th. The Court are requested to give in charge to the jury, that the bond sued upon in this cause, ought to be presumed satisfied by the jury under the evidence given.</p> <p>6th. That there is no evidence in this cause to impugn the legal presumption that the bond is satisfied, from its age.</p> <p>7th. That this bond, in its condition, is merely an engagement that the legacies are to be paid according to the will of Thomas Grubb, and in no other way, and if that will did not require it to be paid in specie, this bond did not create ao obligation to pay it in specie.</p> <p>8th. That current money of the State of Pennsylvania, means as used in the will of Thomas Grubby lawful money which continental money was at the malting ; and that as the bond sued refers to the will, and engages the legacy shall be paid according to the will, nothing but the then current money or its value, could be demanded upon the obligation.</p> <p>No interest can be recovered upon a legacy, until after a demand is made of it.</p> <p>Charge of the Court.</p> <p>This is an action on an obligation entered into on the 14th of October, 1779, whereby the testator, George MlCullough, bound himself to pay to Jane, now the wife of David Montgomery, the legacy of 150/., bequeathed to her by the will of her father, Thomas Grubb, when she arrived at the age of eighteen, to the full satisfaction,of her mother, widow Grubb„</p> <p>To this action, the defendant has pleaded payment, with leave to give the special matters in evidence, and under this plea, the jury are to take into consideration all the circumstances legally given in evidence, and are bound to presume every thing to be paid, which in law, equity, and good conscience, ought not to be paid.</p> <p>. The defence in this Case, rests principally upon two grounds, first, the length of time which elapsed from the period at which this bond was made payable, and the time at which the present suit was instituted. Arid, second, the payment of the money into the hands of the clerk of the Orphans’ Court, on the 6th of 'March, 1781, and the proceedings of the Orphans’ Court, and of the Supreme Court, respecting the administration account of George McCullough, and wife, on the estate of Thomas Grubb, and the matters connected with it. I shall first consider the second of these two grounds.</p> <p>. The bond in question refers to the .will of Thomas Grubb, and engages that the legacy shall be paid to Jane Grubb, according to the will, when she arrived at the age of eighteen years, to the full satisfaction of her mother, widow Grubb.</p> <p>The will gives to Jane Grubb, the sum of one hundred and fifty pounds, current money of the State of Pennsylvania, When she comes to the age of eighteen years : and this sum could be legally paid, only in the money current in vania, or its value at the1 time it is made payable. Continental money was not then current, and the payment cannot, we think, be settled and adjusted according to the scale established by the Act of Sd April, 1781.</p> <p>• We are asked to instruct you that the settlement in the Orphans’ Court, the appeal to, and the decision of. the Supreme Court thereon, are conclusive evidence of the satisfaction of the legacy by the credit therein obtained for the same, and that the record of the Orphans’ Court of the payment of the-money into the Court, the settlement of the account in the Orphans’ Court, the appeal to the Supreme Court, and its decree thereon, are plenary evidence of the full satisfaction of their mother, widow Grubby according to the condition of the bond.</p> <p>I cannot thus instruct you, because I do not think that the law would bear me out in so doing. It does not appear to me, that there was any Act of Assembly, or other law, which authorised the payment of the money into Court at the time that it was made, so as in any manner to bind the parties to this suit; the subsequent proceedings could not render the transaction valid and binding, if it were not so at the time it was done ; and • as it appears to the Court to have been a mere nullity, it ought not to have any effect in this cause.</p> <p>Under these impressions, we cannot think that these proceedings are plenary evidence of the full satisfaction of the widow Grubb, but that the matter was open to the evidence which was given on that point. On the ground of defence, connected with the length of time, the law is well settled, that when twenty years have elapsed after a bond becomes due, on which there is no payment made, or acknowledgment of the obligor, it is to be presumed paid, without any evidence given of payment.</p> <p>But this is merely a presumption, which the law raises, liable to be repelled by evidence of facts, which are inconsistent with this presumption, such as a suit or an acknowledgment of the debt within the twenty years.</p> <p>A suit brought within the twenty years, would destroy the presumption of payment. The plaintiff has produced the records of certain suits instituted in this Court against George MlCullough and wife, who was executrix of Thomas Grubb.</p> <p>These suits were instituted for the amount of the legacies . «o given by Thomas Grubb. George Ml Cullough9' the obligor in this bond, was a party to these suits. If the legacy were not paid, the bond was not paid. And it would seem to me, that the suits for the legacy, being instituted against the person who was also the obligor in the bond, would have the same effect as a suit for the amount of the bond given for the payment of the legacy ; and would take'the case out of the presumption, which the law would otherwise raise, in consequence of the lapse of time.</p> <p>But it is for you to decide upon the facts. If you are of opinion, that there is no evidence in this case to impugn the legal presumption that the bond is satisfied from its age, your verdict will be in favour of the defendant.</p> <p>But if you are of opinion that the legal presumption of payjnent, js repelled by the evidence, your verdict ought to be in favour of the plaintiffs, for the amount of the legacy bequeathed to Jane, the now wife of David Montgomery, by the will of Thomas Grubb, with interest from the time it was first demanded, of which you must judge as well as you can from the evidence.</p> <p>1. Bill of exceptions. The evidence was improper, because it was irrelevant to the issue. It was also hearsay evidence, and was intended to operate on the passions of the jury only. The inventory of Thomas Grubb's estate, was the proper evidence of the amount of that estate.</p> <p>2. The evidence stated in the second bill of exceptions, was also erroneously admitted, because it was hearsay evidence. Mrs.'M'-Cullough might have been examined as a witness. In 2 Johns. Rep. 31. declarations of a testator after making his will, that he had been forced .to. execute the will, for fear of being murdered, were held not to be evidence.</p> <p>3. The records stated in the third bill of exceptions were not evidence ; first, because they were not between the same. parties; secondly, not for the same subject matter ; and thirdly, they were irrelevant.</p> <p>As to the charge of the court.</p> <p>1. The first question was answered properly, but the second was afterwards contradicted.</p> <p>3. 4. & 5. The proceedings in the Orphans’ Court are evidence, first, that the legacy to Jane was paid, and secondly* that it was paid to the satisfaction of the widow Grubb, according to the condition of the bond ; and the decision of the Supreme Court on appeal, rendered it conclusive.</p> <p>On the remaining points he Contended that the charge was erroneous in stating that the legacy should be paid in specie; because the bond is a contract within the 1st and 2d sections of the act of 3d April, 1781,1 Dali. St. Laws, 880, establishing a scale of depreciation. This act regulates all contracts, entered into between the 1st January, 1777, and the 1st March, 1781. In May, 1777, when the will was made, the depreciation was two and á half paper, for one specie dollar: when the testator died, it was twenty four for one; and in October, 1779, when the bond is dated, the depreciation was thirty for one. Now a bond is a contract within the meaning of the act: and therefore the defendant was not bound to pay in specie, but was entitled to allowance for depreciation, according to the act.. In Lee v. Biddis, 1 Dali. St. Laws, 175, it is held, that current lawful money,' means money current at the time of making the contract, and that, parol evidence cannot be received to prove the contrary. ' ’ ’</p> <p>considered the case in three points of view. 1. Were the payments on the 6th March, 1781, and the settlement in the Orphans’ Court, reviewed by the Supreme Court, conclusive evidence of payment of the legacy. 2. If not paid in fact, was it paid in presumption of law. 3. Was this legacy such a debt, as should have been scaled under the Act of 3d of April, 1781.</p> <p>1st. The money was no.t deposited for safe keeping, but as a payment. Such payment was not authorised by any law. The legacy was not due; the legatee was then an infant and had a guardian, William Arbuckle, who was appointed guardian on the 6th June, 1780. The bond was to pay the legacy according to the will. It was not á vested legacy, but being given “ when she arrived at the age of eighteen,” it would have lapsed if she had died before eighteen. The pretended payment was two years and a half before .she came to the age of eighteen, which was not till August, 1783. There was no law nor practice authorising such a deposit in A i the Orphans’ Court. If the legacy had been due, it should have been paid to the guardian of the infant whose duty it would have been under the 4th section of the Act of 1713, (Purd. Dig. 408) to put it out at interest. The Court below therefore were right in deciding, that this pretended payment was a nullity, though recognised by the Orphans’ Court. We had a right to go into the proceedings of the Orphans’ Court and to deny the payments allowed by that Court. On the appeal to the Supreme Court, this point was not touched, nor could it have been, because it was M'-Cullough who appealed.</p> <p>On the first bill of exceptions, he contended, that as the defendant below alleged that the estate of Grubb was insolvent, the plaintiff had a right to shew that Grubb left a large estate, which came to the hands of the executor.</p> <p>On the second bill of exceptions, he contended, that as the bond was conditioned to pay the legacy to the satisfaction of Mrs. Grubb, therefore the plaintiff had a right to prove that she was not satisfied. Her oath in the Orphans’ Court, was under the influence of her husband. This Court has frequently decided that the proceedings of the Orphans’ Court are not conclusive.</p> <p>[The Court relieved Mr. Jenkins from speaking as to the admissibility of the records in evidence,-to rebut the presumption of payment arising from length of time.]</p> <p>Then as to the scaling of this debt, by the Act of 3d April, 1781. Grubb died in May, 1779, when 150/. were of very little value, too little to make any kind of provision for the daughter. He had a large landed estate, and gave a plantation to each of his sons. In Grubb v. M'-Cullough, 1 Teates, 193, a case is reported of a suit for legacies under this very will of Thomas’ Grubb, and auditors found that they were to be paid in value, equal to specie.</p>

ERROR. ERROR to the Court of Common Pleas of Berks . ~ COUnty.

In Error. ERROR to the Court of Common Pleas of Lancaster • ' COUnty. , ... v This was an action of debt brought, by Mary Anderson and others, executors of James Anderson, against Henry Share and Christian Hershey, senior, to recover the amount due on a bond, executed by Henry Share and Christian Hershey, senior, to the said James Anderson, conditioned for the payment of 50,000 dollars, on the 1st May, 1815,. with interest from the 1st of March, 1814.

In Error. ERROR to the Court of Common Pleas of York county. This action was brought in the Court below, by Jácob Bower against John Kauffelt t sheriff of York county, and the Court directed notice to be given to the judgment creditors °f Daniel Treichler.

<p>On the trial of the validity Of awili impeached on imbeénhydoff from^htkT hood to death, othe^'ritnesses than those the will who duringthat time without facts is not adwhetuheyUt the*2uniT oftheopinion dence °d eV'"</p> <p>In such case the declarationsofthe supposed testhe absence devisee!*,of useílijdí'iswife and his cure'the will tobe made, are evidence.</p> <p>A deposition not taken according to rules establishCmirtlsnot evidence.</p> <p>Where witnesses on the trial of the validity of a will have given their opinion of the understanding of the testator founded on facts known to them, they cannot in the cross examination beaskedwhat their opinion would be on a different stale of facts.</p> <p>After a plaintiff has obtained judgment in ejectment for a, moiety of the land, he may sustain a new ejectment for the whole against the same parties without taking possession, or suing out a writ of possession or using any means to inforce the former judgment. But if a party after recovering in ejectment harrass the defendant by a new ejectment, when he is willing to surrender, such defendant might obtain relief on motion.</p>

In Error. ERROR to the Court of Common Pleas of Columbia COUnty. , , - Ejectment by John Kennedy, against Godfrey Bogert, John Faust, senior, ánd John Faust, junior. The plaintiff claimed under a patent granted the 8th August, 1781, to Elias Boudinot, who conveyed to Daniel Montgomery, who conveyed to John Linn, who conveyed to the plaintiff.

• In Error. ERROR-to the Court of Common Pleas of Union county, in'an ejectment brought by John. Larick, Kilian'Foust, and Catherine his wife, late Catherine Larick, against Peter Fisher and Solomon Werlein. Several errors were now signed in relation to thé description filed in the cause, the . . verdict, and the charge of the Court.

In Error. . ERROR to the Court of Common Pleas of Northumberland county, in an ejectment brought by Daniel Scudder and others, against. John Chesnut and Philip Hensel, in which there was a verdict in the Court below in favour of the defendants. The. case depended upon a single question, whether land on which no settlement had been made, could be taken up by virtue of one of the warrants known fiy the name of David Meade’s warrants, issued the 5th of April, 1802.

<p>Tin- acts of an agent, within the scope of his authority, and hU duelapresentations, ployed king an augreementtor in acting within the scope of his author!on pal. ■</p> <p>semati¿n3re’ made by an agent, in a matter in which he is not authorised to act as agent, and to a person with whom his principal has no concern, are not evidence against the principal.</p>

<p>•In Error.</p> <p>THIS was a writ of error to the Court of Common Pleas to f Union County, in which a feigned issue was tried, to termine the validity of a writing purporting-to be the last * _ • ° 1 • 0 frill and testament of Henry Iddings,, deceased. • The tiff having given evidence in support of the will by the oaths of the two subscribing witnesses, one of whom was Jonas Candor, the scrivener who drew it, the defendants offered to prove on tHe cross examination of the said Candor, that through ignorance he had drawh' the will in suph á maimer as to contradict the intention oí-the'testator. "The nature of the mistake was as follows. . The testator’s estate was cipally personal. He had a number of children, to. some of whom he had made advances in money, and it was his design to make-an equal division of his property among them. 0 , . , r . r 1 ' , In order to effect this, a legacy was given to each, which would have put them all on nearly an equal, footing, ing that the su.ms advanced to each, were added to their legacy. But the scrivener inserted in the will, a direction the executors not. to cancel any of the accounts between the J testator and his children ; the consequence of which would be, that the'children must account for the sums advanced to them, and then their provision would be very unequal. mistake arose from the scrivener’s ignorance of the meaning of the word cancel. It appeared that the testator was ninety two years old, and had ten children. The defendants further offered to prove that one of the testator’s children was not named in the will, and that the will was extorted from the testator by the importunity’and hard usage of Thomas dings, cine of his children. The Court rejected this evidence, and the defendants excepted to their opinion.</p> <p>Jbnas Candor-, the above mentioned witness, having stated on j,js examination that the testator furnished him with the matter of the will, the defendants proposed to ask the witness ^hat were the instructions given to him by the testator, and ■ requested him to state them at large. The plaintiff objected • to this testimony, and the Court overruled it, and sealed a second bill of exceptions.</p> <p>T.he verdict and judgment.below, were for the defendant ia error, in favour of the will.</p> <p>' 1. The question is, whether parol evidence- is- not admissible to shew mistake in the execution of a will. In Pennsylvania, the adjudged cases shew that the general rule is-well settled, that what passed "at the time of the execution of a writing, is proper to shew mistake or fraud. Hurst v. Kirkbride, 1 Binn. 616. Simpson v. Drum, 6. Binn. 481. Even in England on a bill for specific performance, chancery allows the defendant to shew by parol proof, that there was á mistake in the instrument, as in Joynes v. Statham, 3 Atk. 388, where the Lord Chancellor allowed the defendant to provecby parol evidence, that the plaintiff, in writing the agrément, had omitted to insert in it that the rent was to be paid clear of taxes': and it is said to be a very common defence in that Court, that there had been an omission, fraud, or mistake. The same declaration is recognised in Langley v. Brown, 2 Atk. 203. In Bigleston v. Grubb, %. Atk. 48, a bill was brought for a legacy of 500/. in right of a daughter of the testator', notwithstanding a portion had been given her in the father’s life-time. Parol evidence was admitted to shew the father gave the legacy in full of what he intended his daughter under the will. In 2 Munf.- 187, the substitution of a deed for a will was proved by parol. So fraud on the testator may be shewn. Phill. Ev. 428. The evidence ought to have been admitted, to. shew the weakness of the testator ; and in that point of view, it was immaterial whether the scrivener drew the will wrong through fraud or ignorance. He also cited 7 Bac. Ab. 380.</p> <p>2. The defendants below were not permitted to ask what were the testator’s instructions to the scrivener: though the testator had omitted one child entirely, which leads to the conclusion, that he had not capacity. He had ten children, and was ninety-two years old. '</p> <p>was stopped by the Court on the first . bill of exceptions. ,</p> <p>2. On the second, he contended, that the question was asked for no purpose but to get in evidence which had been rejected. . The testator’s sanity was not stated as a matter of dispute.</p> <p>confined himself to the second bill of exceptions. The question proposed, as mentioned in the. second bill of exceptions, was on' the cross examination, of a witness, produced by the adverse party. Having stated that the testator furnished him with the matter of the will, we were entitled to know what that matter was. If the evidence was good in itself for any purpose, it is sufficient; and the party offering the evidence is not bound to State its object unless requested. 4 Binn. 198. The instructions were very material in order to investigate any fraud, that may have existed.</p>

<p>. In.'Error.</p> <p>ERROR to the Court of Common Pleas of Northumber~ , , land county,</p> <p>This action was brought' by James Ash and William Hall, surviving administrators of James Craig, deceased, against the administrators of John Patton, deceased. The declaration contained, besides the usual money counts, an indebitatus assumpsit and quantum valebant for goods sold and de- ,. , . , . , livered, an znsimui computassent, and also a count laying an assumption by Patton in his life, time, to the administrators of Craig themselves. The defendants pleaded non assUmp..serunt, the act of limitations, and plene administraverunt, on all which issues were joined. On the trial of the cause in the Court below, the defendants took eight bills of exceptions to matters arising on the trial, and also an exception to the charge of the Court,</p> <p>The first exception was to the challenge of a juror cláimed by the plaintiffs’ counsel, and allowed by the Court, under the following ■ circumstances. The jury being called, the plaintiffs peremptorily challenged Daniel Hoof man \ and another juror being called, the defendants'challenged Robert' Campbell. . Another juror being called, the. plaintiffs waved a second challenge, whereupon the defendants challenged Abraham Campbell.' Another juror being, then called into the box,'viz. John Buyers, the defendants requested the ' jury to be sworn. The plaintiffs claimed the right peremptorily to challenge the said Buyers. The defendants objected to the right, but the Court permitted it.</p> <p>The second-exception was to'the admission of James Ash, as a witness for the plaintiffs. He was one of the plaintiffs on record, but previous to his admission, he had executed a release to the heirs of James Craigs of all claims to compensation, by way of commission, and had paid to the prothonotary of the Court, a sum of money, admitted to be sufficient for the payment of all costs, accrued or which might accrue in this suit,' to be applied to the payment of these costs, let the verdict be as it might; so that in any event, ‘the whole costs were paid by the said Ash;'and he had agreed, that in no event was any part of the money to be refunded.</p> <p>The third exception was abandoned in this Court, and therefore need not be specified.</p> <p>The fourth exception was to the admission of James Craig’s bank book, containing, his account with the bank of Pennsylvania, and a check drawn by James Craig, on the bank of Pennsylvania, dated the 20th of May, 1795, for 1679 dollars, payable to John Patton, or bearer. To explain this exception, it will be necessary to take into view some of the ev*^ence Slven before the bank book and check were offered. It had been proved by the oath of James Ash, that at the earnest solicitation pf John Patton, and for his accommodation, a note had .been drawn by the said Ash, payable to Patton for 2000 dollars, dated the 15th of May, 1795. This note was indorsed by Patton and Craig, and discounted by the bank of Pennsylvania. Patton received the money, but as Craig was the last indorser, and consequently the money was placed to his credit in the bank, it was necessary that he'should draw a check, in order, to enable Patton to receive the money. Ash proved also that he being liable to the bank, as drawer of the note for 2000 dollars, received full satisfaction from Craig, so that in fact Craig lent the money to Patton.- It was then proved by Ash, that the book was the bank book of. Craig, that the signature of Craig to the check, was his hand. writing, that the check bore the mark of. having been cancelled in the bank of Pennsylvania, and both book and check were found by him, after Craig’s death, among'his papers.</p> <p>Fifth exception. The plaintiffs offered an exemplification of the record of the Supreme Court, of a suit brought there to September Term, 1785, by James Seagrave, .against John Redman, James Craig, John Patton, James Montgomery, and Philip Moore, in- which judgment was entered on the 11th of December,,1797, for gi026, 87¡| cents, and offered to prove that Craig paid for Patton, his share of the judgment. This record and testimony were admitted by the Court, and the defendants excepted.</p> <p>. Sixth exception. The plaintiffs offered to prove that • Craig paid the whole of this judgment, and costs of suit: that two of the defendants'in that suit, viz. . Redman and Moore, were insolvent; and also to Shew the proportion that each defendant ought to have paid, of which Patton’s proportion was one-sixteenth. This evidence was also allowed by the Court, and an exception taken by the defendants. u 1</p> <p>Seventh exception. . The plaintiffs offered evidence to prove, that .a note for 350 pounds was given by Patton and Craig, to a certain John Wright Hanley, as the witness preJr , , e ,. ,, -, , . . * ■ sumed tor the purchase oí a brig, called the óukey, purchased by them, which vessel Ash arid another became interested in, and was sent by the owners on a voyage, and that Craig had paid Patton's ■ half of this note. • This evidence the Court admitted, and an exception was taken by the cle-fendants.</p> <p>The eighth exception was to the admission in évidence of a number of letters from Patton to Craig, and to Ash, and. of a copy of a letter from Ash to' Patton,. proved by Ash to be a true copy .in his hand .writing, of a .letter directed to Patton, and put into the post-office.</p> <p>. Vhe last exception was to the charge of the Court, ¡on the subject of the Act of Limitations. The transactions.on which the plaintiff’s claim was founded, took place more than six years hefore the commencement of the action. To take the case out of the act, the plaintiffs relied ori several letters of Patton, but more particularly on one to James Ash, dated the 16th of November, 1802. And the opinion of the Court was- expressly asked by. the defendants on this point. The Court’s answer was as follows. “To take the cáse, out of the Statute of Limitations, there must be an acknowledgement of a subsisting debt, or a promise to pay withiri.six years before the action was brought, and the acknowledgement and promise to pay must have a direct reference .to the demand made by the plaintiffs, which fact the jury must determine from the evidence in this cause.”—The letter was as follows:</p> <p>Centré County, 16th Nov. 1802.</p> <p>. Dear Sir,</p> <p>My trunks containing my books rind pa- • pers, were in.a private room, at Dumvoody's open; some time before I left the city, I searched for Captain Craig's account and ray own, that I had drawn out, but could not find them. My books are now at Harrisburg, I expect to receive them. shortly, and as soon as their arrival here, shall have: myaccount ma(je out again. In the mean time, I beg the favour of you to have the other made out, and forward to me by some safe hand. I am sorry to put you to this trouble, but it is. unavoidable from the circumstance mentioned.</p> <p>I will write you again sometime hence, and inform you when I shall return to the city to put a close to this' affair, in the best manner I can. , .</p> <p>I am &c.</p> <p> John Patton, </p> <p>James Ash, Esq,</p> <p>1. The Court ought not to have permitted the plaintiffs t@ make a sécond challenge, after waving the right of challenge when it came to his turn, as appears by the bill of exceptions. The Act of Assembly of the 4th April, 1809, provides-, that, in all civil suits bach party' sháll be allowed to challenge'two . jurors peremptorily. Purd, Dig. 347. The mode of conducting the challenges in criminal cases is pointed out by the Act of 29th March, 1813, and that Act furnishes a guide in civil cases. By that Act, Purd.. Dig. 348, the Commonwealth and the defendant challenge alternately, and it specially enacts, that if the Commonwealth should refuse to make any challenge, the defendant’s right to challenge, is not taken away. So in the present cáse, when the plaintiffs refused to challenge a second jiiror, his right was gone, though the other party might exercise it. Each waver amounts to a relinquishment of one challenge. The plaintiffs wished to gain an advantage by refusing to challenge in their turn and insisting on challenging out of their turn. The Court of Common Pleas cannot establish a practice independent of the control of this Court. The practice on this point should be uniform throughout the State.</p> <p>2. This point considering the opinion of the Court on the former.writ of error, we shall not enlarge upon, although we desire the opinion of the Court upon it.. Much injustice and-perjury is produced by suffering witnesses to divest them-t selves of interest in the cause, at the bar.</p> <p>4. Craig’s bank book and check, were both improper evidence. It is doubtful whether the check was evidence even connected, with the circumstances proved : but as to the bank book, it certainly was not, without proving the entries 'in it by the bank clerk Who made them. 2 Esp. N. P. .495. 47S. 4 Esp. N. P. Rep. 9. No steps whatever had been taken to procure this proof, and therefore length of time is no argu- * 1 ment. '</p> <p>5 6, St 7. These bills of exceptions depend on the same principle. We objected to the evidence-because it related to a partnership transaction, which partnership was proved by the plaintiffs themselves. Account render is the only proper action between partners, until the; account is settled ; and here was no evidence of the settlement of 'this partnership account. It is well settled that no action of assumpsit lies by one partner against another, without an express promise. 2 Caines Rep. 293. Ozeas v. Johnson, 1 Binn. 193.</p> <p>The copy of the letter from Ash to Patton, was certainly not evidence. We were not called on to produce the original, nor was it proved that it ever came to Patton’s hands. Ash merely proved that he put it.into the post office.</p> <p>As to the charge of the Court: the letter of Patton did not refer with certainty to the account which is ’the subject of this suit, and the Judge should have told the jury that unless the letter did so refer, it could have no effect on the Statute of Limitations ; or perhaps the jury should have been told expressly that this letter had no effect on that Statute. The principles in relation to the efficacy of an acknowledgment in taking the case out of the Acts of Limitations have been much restricted of late, and the prévalent opinion is, that Judges have gone quite far enough. In Clemenson v. Williams, 8 Cranch, 72-, it is held, that an acknowledgment "that a debt was originally due' is not enough : it tnust bp an acknowledgment that it is due. Só it is decided in Kehtucky, that there must ,be an express acknowledgment of a debt due at the time of the acknowledgment. Hardin’s Kent. Rep. 301.</p> <p>1. The Act of Assembly gives the right to challenge two jurors, and in this case the plaintiffs, challenged only two. The Act does not prescribe the mode of challenge: that is a matter which depends on the practice of the Court, and in which different Courts vary. The practice in this district is conformable to the course pursued in the present case, There was no waver of a further right of challenge, but only as to the original pannel. When the defendants by their second challenge brought a new juror into the box, we claimed the right to challenge him : and that right could not have been waved before, as it did not exist in regard to the juror then brought in.</p> <p>2. As to the competency of Ash, that question is .fully settled by the former opinion of the Court in this case. 3 Serg Ratule, 300, and.by numerous authorities. 3 Binn. 506. 6 Binn. 16. Phill. Ev. 36. 57. 6 Binn. 481. 2. Dali. 172. 4 Dali. 137.</p> <p>4. The bank book and check, were evidence after what had passed. It was an old transaction, having taken place twenty-five years before the trial. In Egg v. Barnet, 3 Esp. N. P. Rep. 196, it was held, that a check on the back of which was the name of the person to whom it was paid, coupled with other transactions, was evidence. As to the bank book, it was proved to be Craig’s, and the entry corresponded exactly with Ash’s evidence. It could not be expected at the end of twenty-five years, that evidence could be produced of the hand writing of the clerk of the bank, who made the entries. They cited 2 Teates, 4177. 4 Binn. 198.</p> <p>5, 6, & 7. The objection is, that it was a partnership concern. But here was no acknowledged partnership, and it was for the jury to decide whether there had been a partner- ■ ship. We deny that they were partners. They owned a ship in certain proportions, and might each sue the other. 1 East, 20. Account render would not lie against Patton’s administrators ; he never received the money of Craig. 5 Binn. 564. 1 Bac, Ah. 36. 1 Caines, 188. 2 Johns. Cas. 329. 10 Johns. Rep. 226. 9 Johns. Rep. 470.</p> <p>8. We offered a number of letters together, and they were objected to altogether: no particular objection was made to the copy as a copy.</p> <p>As to the charge of the Court. It was proper-to leave the question as to the acknowledgment, to the jury, because it depended on various letters, some of them referring to matters extrinsic to the letters themselves. The letter of 16th November, 1802, referred to accounts, .the facts respecting which, were necessary to' elucidate the meaning of the .parties, and none but the jury could determine this. It is the rule, that when the'writing is ambiguous, it should be left to the jury. Miles v. Moodie, 3 Serg & Rawle, 211. 1 Esp. N. P. ('Gould’s Ed.) 219. l.Binp. 212. 5 Binn. 573. 1 Serg. Rawle,179.</p>

<p>A person, title or colour on^meated^ land, which has been surveyed and pather?acquires" cF limitations, by years^possess0 actually cuiticloses?1'11</p> <p>land'and'ma?'1 Ring a survey, if done animo clamandi, m2y amou^J to entry and claim • but if the intent be doubtful, the question, whether it is an entry and claim, is for the jury.</p> <p>So also the jury are to decide on doubtful conversations, how far they amount to a recognition of title.</p> <p>A mere levy by the Sheriff and sale of 1000 acres, without mentioning the party’s name, or that the land was in his possession, and without entry by the Sheriff, are not sufficient to establish an entry on such party, by a person claiming under such Sheriff’s sale.</p>

In Error. ERROR to the Court of Common Pleas of Lycoming . ... . . r . county, m which a bill of exceptions was returned to the answers of the Court to certain questions. The suit was ejectment-brought to September;‘Term, -by Moses Rush against Rhodá Isaac and William Collins, to recover four hundred acres of land in Lycoming county..

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Union county, in an ejectment brought by John Foster and William Foster, against Samuel Shaw and Thomas Matthews, in which there was a verdict and judgment for the defendants in the Court below.</p> <p>The suit was brought for a moiety of 214 acres and 35 The warrant under which , . rT , . perches in Hartley township. both parties claimed, issued from the land office on the 27th June, 1773, in favour of Robert Chancellor, and a survey was made thereon on the 15th February, 1793. The plaintiffs claimed the moiety under the will of their father John Foster, who as they alleged took up the lands, and agreed with Chancellor that he should take out the warrant in his name, and that Foster should have one-half for locating the lands, as was a very common course at that period. The defendants claimed the whole under a conveyance of the 15th April, 1796, from Robert Morrison devisee of Robert Chancellor to Thomas Matthews.</p> <p>The plaintiffs gave in evidence articles of agreement, dated the 7th August, 1773, between Robert Chancellor and John-Foster, by which it was covenanted that Foster should have one-half the tract for locating it, and Chancellor the other half for taking out the warrant and surveying it, and then gave in evidence the will of John Foster, dated the 10th February, 1786, by which he devised this tract to the plaintiff, and directed, “ that part of said tract, that is the property of Robert Chancellor, I allow to be purchased at the expense of my son James” and devised other lands, to James.</p> <p>The plaintiffs then offered in evidence a letter of the 24th June, 1773, from David Kennedy who was then a confidential clerk in the office of the secretary of the land office, to John Foster in which he states, “ that it did not suit him to. advance the money on his location, adjoining Glover’s, but had given it to the bearer Robert Chancellor, who had taken out a warrant for it, and given an agreement to convey to Foster one-half;” having first given in evidence the original application, taken from the file in the secretary’s office, and proved to be in the hand writing of John Foster, except that John Foster’s name was scored, and Robert Chancellor’s substituted by an interlineation, which was in the hand writing of David Kennedy. At the foot of this application there was a note, in the hand writing of David Kennedy, signed D. K., in these .words; “John Foster sent down to takeout a warrant for the half; but it did not suit me to advance the money; I gave it to the above young man.” This letter was objected to by the defendants, and rejected by the Court, and an ex» ception taken by the plaintiffs..</p> <p>The defendants offered to give in evidence, an exemplification of a deed poll, dated the 18th December, 1792, from ji0fcrt chancellor to James Foster, purporting to be a convey. anee to James Foster in fee of the whole right, title, and interest of Chancellor in the warrant. This was not offered as a genuine deed, but admitted to be fabricated. The plaintiffs excepted to this evidence, but the Court admitted it, and the plaintiffs took another exception.</p> <p>The defendants also offered in evidence the proceedings, and order of the Board of Property, on the petition of Thomas Matthews. To this evidence the plaintiffs objected, but the Court admitted it, and sealed another bill of exceptions.</p> <p>The defendants also offered in evidence the record of the Supreme Court, of a trial and verdict, in a suit brought by Morrison's Lessee, against James Foster and another, in 1795, as introductory to other evidence, which he meant to produce, to prove that a witness who was examined on his behalf on this trial, gave the same evidence on that occasion, which he gave on this ; the plaintiffs having examined witnesses to impeach his credit, by proof of inconsistent statements made by him. rIhis evidence was also objected to by the plaintiffs, and admitted by the Court, who sealed a bill of exceptions.</p> <p>The defendants thereupon offered in evidence, the notes taken by Judge Ye ates, who sat on the trial, of the testimony given by the witness before mentioned, after proving by one of the jury, that the witness was sworn on the former trial. This evidence was objected to by the plaintiffs, but the Court admitted it, and sealed another bill of exceptions.</p> <p>The defendants also offered in evidence, a deed dated the 1st April, 1796, from Robert Morrison to Thomas Matthews, proved by one of the subscribing witnesses to have been executed in Ireland, and certified by the sovereign of Belfast under the seal of the corporation. The deed was objected to by the plaintiffs, but the Court admitted it, and another exception was taken.</p>

In Error. ERROR to the Court of Common Pleas of Union county. This was an action upon an award.

<p>“A. leading internogatory is, when it is expressed in such a manner, as to indicate to the’witness the answer which it is wished he should make,; and if there be no such indication the interrogatory is fair.</p> <p>• If it be stated in a record of the Orphans’ Court, of the proceedings for the sale of an intestate’s lands, that certain administrators of such intestate came into Court, and requested the sale, one of those administrators cannot afterwards be received in a suit respecting the lands, as a witness to prove that she did not consent to the sale. -</p> <p>The truth of the record, concerning matters within the jurisdiction of the Orphans’ Court, cannot he disputed.'</p> <p>If the notice he that depositions will be taken ata certain house in theborough of Lancaster, and all that appears is, that the deposition offered was taken in the county of Lancaster; it cannot be read in evidence, if taken in the absence of the opposite party. But the appearance of the adverse party cures every defect of notice, '</p>

In Error. ERROR to the Court of Common Pleas of Luzerne county, in an ejectment brought by Jacob Overfeld against Jerusha Christie and Hugh Osterhout, in which there was a verdict and judgment for the defendants. The plaintiff gave in evidence, an application in the name of ’Samuel Lefevre, dated the 3d April, 1769, on which a survey was made 4th October, 1773, and a patent issued to Joseph Wharton 17th August, 1784.

In Error. ERROR to the Court of Common Pleas of Union » . * This was an action of trespass brought b Henry Clymer . r • , . . tt- ¶ and four others, the plaintilis m error, against Henry and Thomas, before a. justice of the peace, • for cutting timber of the plaintiffs, growing on their land in the county of Union. The justice gave judgment for the plaintiffs, and' t^le defendants appealed to the Court of Common Pleas.

In Error. ERROR to the Common Pleas of Luzerne county. Trover by Conrad Teetor the plaintiff below, against John W. Robinson for a horse. Teetor was discharged in New Tork under the insolvent law of that State, and assigned his property, among which was, “ a claim to a horse in hands of John W. Robinson” for which horse this suit was now brought.

In Error. . ERROR to the Court of Common Pleas of Luzerne COUIlty • John Reed and others, administrators of Samuel Meredith, deceased, brought this action of debt against Jacob late treasurer of Luzerne county, to recover various of fifty dollars each, for taking greater, and other fees than the law allows, for. advertising 42 tracts of land, viz. one dollar fifty cents for each tract, which penalties amounted J . * . in the .whole, to the sum of 2100 dollars.

<p>Survevs made in April, 1777, by an agent for the person who been the PraP1-'etary, are void, and give no title against an intervening survey. They misht have ac— quired validity lrso.or 5th ^if’the^rov's'ons of were not con[heya^e'not fThe April, 1781, 1793 not reach</p> <p>a void sur(N 'tson° son procuring survey.qUeUt</p> <p>wher?a precisely deonly to a’comtaches only survey.°tUaI</p> <p>pla!nsign for error g^^b^the Court which ble as his re-" ¶»*.</p>

<p>In Error.</p> <p>irtim ERROR to the Court of Common Pleas of County,</p> <p>Vanswearingen and others, the plaintiffs below, were children and coheirs with one other person of Thomas Vanswearingen, deceased, and brought this ejectment to recover their portion of a tract of land which had belonged to their father, who died intestate. The defendant below, George Nass, ■ . . 7 * 7 who was in possession, claimed the land under a deed from the Sheriff of Mifflin county, who had sold the land to him, by virtue of an execution issued on a judgment, recovered r . . by confession against Samuel Vanswearingen, one of the children of Thomas Vanswearingen, as executor de son tort of his father,</p> <p>On tne trial in the Court below, the defendant called Samue^ Vanswearingen as a witness, who said that he was a son an<^ beir Thomas Vanswearingen, and would not be sworn give evidence in chief, unless the' Court declared he must, and being sworn on his -voir dire, stated the same th ng. The Court thereupon refused to compel him to be sworn in chief, and the defendant excepted.</p> <p>The defendant then offered evidence of the declarations of Samuel Vansxvearingen, relative to the title, and also that all the personal property belonging to his father, had been sold by the constable. The plaintiffs objected to this evidence, and the Court overruled it. Whereupon the defendant tendered another bill of exceptions.</p> <p>The Court below instructed the jury, that there was no case in their knowledge in Pennsylvania, in which a sale of lands on a judgment confessed by an executor de son tort, had been held valid, and deemed to vest a title in the purchaser, and they felt no disposition to make the precedent.</p> <p>1. That Samuel Vansxvearingen was a legal witness for the defendant. He had not joined with the plaintiffs in this suit; he was in no respect a party to it, and had no interest in it.. If the plaintiffs recover, he cannot enter, or take part of the profit with them, nor can he take advantage of this verdict. To disqualify him, a direct interest in the event must be shewn ; the verdict must be evidence for him. A mere hope or expectation is no objection ; nor a right existing in the imagination of the witness. Peake's Evid. 144, 145, 146.</p> <p>' 2. If he was not a legal witness, on the ground of his being a party concerned, it follows of course that his declarations were evidence.</p> <p>3. As to the main point: we contend that a sale of land, under a judgment against a defendant as executor de son tort, is valid. An executor de son tort is usually sued and considered in all respects as executor, and is liable to the amount of the assets, with which he has intermeddled. He is chargeable with debts, so far as assets come to his hands. 2 Black- Com. 507. 3 Bac. Ab. 26. In this State, lands have always been assets for the payment of debts. rl he land in this case was sold for 700 dollars, its full value, and the defendant has made valuable improvements, to the amount of 800 dollars.</p> <p>A judgment obtained against an executor de son tort, does not authorise a sale of land. He cannot retain for his own debt. He has no interest in the property of the deceased, and can maintain no action to recover it. Toll, on Ex. 189. 11 Vin. 2IS. A rightful administrator may falsify a recovery against the executor de son tort, 3 Bac. Ab. 24. He may recover a negro sold by the executor de son tort. 2 Hay. 179. It is decided that the heir may recover land from a purchaser at Sheriff’s sale, under a judgment and execution against an executor de son tort. Slitchell v. hunt, 4 Mass. Rep. 654. In Pennsylvania, as well as Massachussets, the personal estate must be exhausted,'before the land can be sold.</p> <p>2. One considering himself interested is not a witness, 5 Munf. 148. Phil. Ev. 43, 44. The witness here was interested, because the plaintiffs being part owners with him, their recovery would be for his benefit, and because this verdict would be evidence in an ejectment hereafter brought by him.</p> <p>Reply.—Samuel Van Swearingen was left out with a view of depriving the defendant of the benefit of his testimony. The decision in 4 Mass. Rep. 654, as to the sale of the land on a judgment against an executor de son tort, was founded on an Act of Assembly, which may perhaps be different from ours.</p>

In Error. ERROR to the Court of Common Pleas of Columbia county.' This was an action by the administrators of Jacob Hart, deceased, late Sheriff of Luzerne county, against Ebenezer Greenough, Esq., to recover the purchase money of -a tract of land, sold by Hart to Greenough, by virtue of a writ of venditioni exponas, issued by the Court of Common Pleas of Northumberland county.

In Error. ERROR to the Court of Common Pleas of Allegheny COUnty. . - Account render brought by John Deal, senior, against William Deal, junior, in which the executors of the plaintiff below, were substituted after his death. 1’he plaintiffs took out a rule of arbitration. The arbitrators met and heard the ' ' case, and tied an award in favour of the defendant, for 502 dollars, 27-cents, on the 25th October, 1819.

<p>Under the 3d sect, of the \ et of 13th April, 1807,hi case of the death of a party in ejectment, the person next in interest may be compelled to appear.</p>

In Error. . ERROR to the Court of Common Pleas of Allegheny county.

In Error. THIS was a writ of error to the Court of .Common Pleas of Allegheny countv. A replevin had issued from that Court, •5 »» •* * at the suit of Leonard T)obbin, against Walter Garlisle, di*ected to the defendant in error, William Woods, as Sheriff Allegheny county, . who took from Walter Carlisle and _ ° _ , . , . , , . James Robertson, the plaintiffs in error, a replevin bond m the penal sum oí 4000 dollars, with a warrant of Attorney, to enter judgment thereon.

In Error. ERROR to the Court of Common Pleas of Westmoreland county. This was an ejectment brought by Samuel Thompson and Jane his wife, and David M1-Briar and Elizabeth his wife, heirs of Archibald Lochrey, deceased, against George Smith, and the question in the case arose upon the Act of Limitations.

<p>If the drawer or previous indorser of a promissory note is offered as a witiuss in subsequent indorser, to prove that the plaintiff had Aerabas-*1 ser'andls'objected to by and^ejJot'fd andafteí>Urt’ wards the draws'hilo!)the4defendant Is not error’.14</p> <p>if the drawdorsed note fage bemfeg though not’ somedays4aftrr, for sucurmentofthe" note, it does not merge the note or dis-</p>

<p>A survey, of which only one line has been run and marked on the ground, is not good to shew, that the defendant had intruded within the lines of the plaintiff’s land.</p> <p>It seems, a survey of which only one line is run and marked on the ground, is void,5 but though only one line is found, it may go to the jury as evidence to presume others marked, and if accompanied with possession and acts of ownership for twenty-one years, may form a title.</p> <p>• So, if a general marked outline enclose several tracts, it is a good survey of the whole; and the intermediate lines established for division or sale, may be good,though not marked on the ground.</p> <p>The silence of the Court concerning the testimony of a witness, is not a withdrawal of it from the jury.</p> <p>Evidence of the improvements made by the defendants is admissible in ejectment, to rebut the evidence of the same kind given by the plaintiff, though otherwise not correct.</p>

<p>in slander, a declaration stating the words to have been spoken in the third Supported by6 in the second</p> <p>of Court authorises a rule for taking f0ep°Sg„“ered of course, stisonabKo-*" tioB> ‘i1®®0,?struction of the rule most aplet'slh^ne“tying thePe" number of days notice in the rule, depend on the usageand practice of the Court</p>

JN ERROR. ERROR to the Court of Common Pleas of Somerset county, This was an action of replevin, in which John Horn, the defendant in error was plaintiff below.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Washington ° county,</p> <p>This was an ejectment brought in the Court below, by John Murphy and Rosanna Jackson, against Samuel Riddle, io recover a tract of land in Washington county. The land had belonged to Cornelius Murphy, who held under an improvement right, and died in 1802. By his will he devised It to his daughters Alice and Ann Murphy: The .plaintiffs who were the brothers and sister of Cornelius Murphy, claimed as the heirs at law of Alice and Ann, who it was proved had gone away from the State prior to the death of Cornelius Murphy, and had not since been heard of. The defendant, Samuel Riddle, was the son and devisee of John Riddle, who was the administrator with the will annexed, of Cornelius Murphy, and had purchased the land at a Sheriff’s sale which took place under an execution issued to August Term, 1804, upon, a judgment obtained by one William Williamson, against the said John Riddle, as administrator of Cornelius Murphy, by the confession of John Riddle. Riddle afterwards perfected the title. The plaintiffs alleged that this judgment and the sale thereon were fraudulent ; that if the debt were due to Williamson, S. Riddle at, the time of the sale had assets in his hands to pay the same ; that the land was purchased by him greatly below its value, and gave evidence of these and other circumstances to impeach it. It appeared also, that in 1808, an ejectment was brought in the name of Alice and Ann Murphy, against John Riddle, which was removed to the Supreme Court, and tried in 1811 : a verdict was found for the plaintiffs and a new trial was awarded ; and the costs were afterwards paid by John Murphy, who had conducted the suit on behalf of the plaintiffs in that suit. The other plaintiff Rosanna Jackson, was then examined as a witness for the plaintiffs.</p> <p>Several objections to the plaintiffs5 right to recover were made, and the opinion of the Court was reduced to writing, and filed of record. -</p> <p>In the first place, the defendant objected that the plaintiffs had not shewn a title in Cornelius Murphy, under whom they claimed. To this the plaintiffs answered, that they had proved that S. Riddle came into possession as the devisee of John Riddle, who purchased the land at Sheriff’s sale as the property of Cornelius Murphy, and as he held prima facie in this right, they were not bound to go farther back unless the defendant shewed some title in himself aliunde. The Court charged, that as no other right had been alleged by the defendant than that arising under the Sheriff’s deed to his father, the plaintiffs were not bound to go beyond it.</p> <p>2. As the title of Cornelius Murphy vices, only inchoate, and as the plaintiffs had been out of possession when this suit was brought, for more than seven years, the defendant relied on the5thséct. of the Limitation Act of March, 1785?i Purd. Dig. 420, as barring their recovery. On this point the Court charged as follows.</p> <p>With respect to the construction of this Act we observe, that it refers to adverse possession, which the policy of the law in the case enumerated says, shall be quieted after seven years, unless the party having inception right shall proceed to perfect title. It does not apply to cases of fraud, unless discovered within the time limited, nor even if the fraud is discovered, unless the party to be injured is conscious of it. It is not material that others are acquainted with it, if the person who is barred be ignorant. Were Alice and Ann Murphy then ignorant of the circumstances of fraud upon which their claim was asserted at the trial in 1811 ? In point of fact, we have it well established that neither of them were here prosecuting the suit, nor have we any evidence that they were then living—they were searched for and advertised in the newspapers by Mr. Read and Mr. Dofdridge, for four years up to 1819, without success. We cannot believe therefore, that they even knew of the transactions, and if they had instituted this suit, the Act would not bar them. But it is said, that John Murphy and Rosanna Jackson, the present plaintiffs, knew of the fraud, and are therefore precluded by the limitation. It is true, that John Murphy, in behalf of his nieces, conducted the former suit, when the unfairness of Riddle's conduct was developed, and must have been apprised then of the facts now produced in evidence. It is also true, that Rosanna Jackson was a witness at the trial. But at that time neither had any interest in the litigation,—they could not be bound to notice what they could not redress. If in 1811, they could not have supported a suit in their own right, their knowledge of the facts of fraud, will not cause the Act to run then against their title derived thereafter. Has the limitation then elapsed usince their title accrued? If it has, with a knowledge of the fraud concurrent, they cannot recover, for Cornelius Murphy had a mere inceptive right, which has been since perfected by Riddle, This leads to the inquiry, whether Alice and Ann Murphy were alive at the death of their father John, and are since dead without issue, and if so, whether moré than seven years before the bringing of this suit. The proof on this subject is presumptive, arising from the repeated searches and inquiries made after them, and from the lapse of time. This however may afford ground sufficient to satisfy you that they were dead before the suit was commenced. Evidence that a man has not been heard of for many years, is prima facia enough to prove him dead, without issue, See. As it respects these persons', the only certain information we have of them at all, is the testimony of the declarations of Cornelius Murphy to Peter Kidd, Mrs. Riddle and David Jones, that he had two daughters in Carolina. Mr. Doddridge in the course of his inquiries, heard that at some time they had been in ■ Green Briar county, in Virginia, and from thence had ‘ removed West, but could not be traced further., The date of his last search was in 1808 or 1809. Mr. Kidd has never heard of them at all since the death of John Murphy, although he advertised for them fourteen or fifteen years ago in Staunton, Virginia. If from these circumstances the presumption of the death of Alice and Ann Murphy within seven years prior to the bringing of this suit, is sufficiently strong to satisfy you, every difficulty from the Statute of Limitations is removed, and we proceed to examine the real and substantial merits of the case.</p> <p>3. The defendant contended, that the plaintiffs could not recover, because there was no tender of the purchase money paid by J. Riddle for costs or improvements on the land in question. The Court charged as follows.</p> <p>The defendant concludes by an additional legal objection, which is, that a tender has not been proved before suit brought, and that therefore the plaintiffs cannot'now recover. To this-we observe, that if you bring the case to that point, it is not necessary, because the administrator by his own shewing had, at the time of the sale, assets sufficient to discharge the debt.</p> <p>4. It was now assigned for error, that the Court erred in giving their opinion or directions to the jury as to the facts, and therein exceeded their legal' and constitutional province. That part of the opinion to which this objection was made, was as follows :</p> <p>The defendants resist the claim of the plaintiff on the legal point first noticed, and also by denying that the evidence respecting Alice and Ann, affords sufficient presumption of their death. And to repel the suggestions, he produces the record of an ejectment brought by Alice and Ann Murphy, against John Riddle, to March Term, 1808, for this tract of land. This suit was removed to the Supreme Court, and tried in March, 1811, when there was a verdict for the plaintiffs, and new trial was awarded. It appears that the costs were afterwards paid by John Murphy, and it is contended, that here is his admission that his nieces were alive at that time, as he prosecuted the suit in their right. Any such inference however, is removed by the proof we have, that before this inquiry had been made at the request of John Murphy, for his nieces, in different places without success, and that in fact he did not know they were in being.</p>

<p>■In Error.</p> <p>ERROR to the Court of Common Pleas of Somerset county.</p> <p>Assumpsit in the Court below by Peter Bérkey against Abraham Morrison. The declaration contained three counts.</p> <p>The first count stated that Berkey had become surety for and on behalf of Conrad Piper and Joseph Vickroy, trading under the firm of Piper and Vickroy, in the penal sum of 1600 dollars conditioned for the payment by the said Berkey, Piper and Vickroy, or either of them of the sum of 800 dollars to a certain George Kimmel,¡cm., and the same afterwards became due, and was demanded by the said George Kimmel, jun., and the said Piper and Vickroy neglected to pay : that after-wards Morrison became a partner with Vickroy; and the money being due and unpaid, the plaintiff intended to pay it, and institute a suit against Piper and Vickroy for reimbursement and indemnity ; and was proceeding to do so, when the defendant, in consideration that he would not proceed to pay off the bond, and institute a suit, and would allow Piper and Vickroy a reasonable time to raise the money, promised to indemnify the plaintiff from all damages to rise by being surety, and if the money should not otherwise be paid, would pay the same and would be responsible for the said debt, averring that the plaintiff1 in consideration thereof did not proceed to pay off the bond or institute suit against Piper and Vickroy, and allowed them a reasonable time, viz. four weeks to raise the money: that Piper and Vickroy did not pay the debt, but the same remained and yet remains due and unpaid by Piper and Vickroy, nor was it paid except by the plaintiff, who was obliged to pay, and did pay the debt and interest in full. Nevertheless &c. ■ The second count was for money paid, laid out and expended by the plaintiff to the use of the defendant. And the third for money had and received.</p> <p>On the trial in the Court below, in June, 1819, the plaintiff, to support the declaration, offered in evidence a bond, dated the 24th of March, 1812, purporting to be from Berkey, Piper and Vickroy, to George Kimmel, jun., corresponding in other respects with the declaration, but it was signed “for Piper and Vickroy, Conrad Piper” with a seal annexed, and also signed and sealed by Peter Berkey.; on this bond was indorsed a receipt of satisfaction in full, signed by George Kimmel, jun. The defendants objected to the admission of this bond in evidence, on account of the variance, but the Court admitted it “ to shew the amount of the claim, not as evidence of the assumpsit.” To this opinion the defendant excepted..</p> <p>The plaintiff then produced as a witness George Kimmel, jun., who testified that in the summer of 1812, the defendant said that he had become a partner of Vickroy, in the room of Piper. He requested Kimmel to wait nine months for the payment of the bond, and acknowledged he was liable to pay the bond. After the nine months had expired, Kimmel asked the defendant to pay the money, and told him the time was up. He said he was not able to pay the amount, but would pay the interest, and he paid Kimmel 48 dollars, on account of one year’s interest, a receipt for which was indorsed on the bond. Kimmel saw Piper and Berkey sign the bond, but Vickroy was not present and did not sign it. Berkey never paid Kimmel the money. On the 12 th of August, 1814,he gave Kimmel a judgment bond with Joseph Reed as security for the arhount of the debt and interest: the judgment was entered in Somerset county, and remained unsatisfied. Piper and Vickroy were discharged from their debt, by the judgment bond of Berkey and Reed. Kimmel did not recollect that Berkey called on him to give him time ; or that he knew that the defendant was to pay the bond. The defendant advised Kimmel to bring suit against Berkey, and brought him. a note from Berkey addressed to Kimmel, in which Berkey informs Kimmel, “ I have seen Mr. Morrison, and have been consulting with him, and he says the best for me in regard to the bond in your hands against me is, as he will direct you to, for them and me.” The defendant asked Kimmel to give him the bond to bring suit against Berkey, having just come from Berkey’s. This was some time after the re.ceipt on the bond. George Graham was present and said, “ Morrison, you have assumed to pay this money.” Morrison said he had not. Graham said you have. Morrison said no more. Kimmel considered his debt secured by Berkey and Reed. He had given notice that the proceeds of tin sale of Joseph Reed’s property, then, (at the time of. the trial) selling by the Sheriff, should be paid towards his judgment against Berkey and Reed. He did not know of any property owned by Piper and Vickroy. He considered Berkey’s land worth 4000 dollars.</p> <p>Joseph Vickroy, another witness, produced on behalf of the plaintiff stated that Piper and he were in partnership, and. had a loan of 800 dollars from Kimmel; part of it was in money, and part in clothing and provision for their hands. The whole amount was for the use of Piper and Vickroy. He thought Piper made the contract with Kimmel. The defendant and Vickroy made a contract afterwards in writing, and Morrison agreed to pay some of the debts. The defendant and Vickroy had an arbitration and settlement between them, when Vickroy was found in arrear about 3500 dollars: the defendant was to pay him 1000 dollars, and then he would be behind about 2500 dollars. He did not know that the defendant got credit in the settlement for the amount of Kimmel's bond. He purchased out Piper’s interest, and then took the defendant as a partner. Some months afterwards he thought this bond was mentioned in the settlement. The defendant admitted that Viper .and Vickroy were insolvent in and before 1814. The plaintiff then proved a judgment obtained by Thomas Vickroy, at May Term, 1812, and a mortgage given by'them to Daniel Livingston, on the 9th of May, 1-810. ’ ' . '</p> <p>George, Graham was then produced as a witness for the plaintiff, who testified that the' defendant came to his house about the time he entered into partnership, and said he wanted to know what time the creditors of Piper and Vickroy would give-. Graham said that he would give' nine months. Kimmel was.present and said he would give the same. The defendant said that was very'well.' ' He then said I have entered into partnership. Kimmel and he talked about their debts. In the evening the defendant shewed Kimmel a schedule "of the debts he was to pay, but the witness did not re-, collect whether this bond was in' it. His own claim was in it, and the defendant had since p’ai'd that.</p> <p>The plaintiff then proved the petition of Joseph Vickroy, at the term when the trial took' place, for the; benefit of the. insolvent law, and also the record of a judgment at May Term, 1815, .in favour of George Kimmel, jun,, against Berkey and Meed, and a scire facias to May Term, 1816, on which nulla bona was returned. He then proved a "memorandum of an agreement made on the Sd of August, 1812, between Joseph Vickroy of the one part, and Abraham Morrison of the same county, of the other part; that the said Vickroy¿ in consideration of what followed, covenanted and agreed to convey, assign and confirm to the said Morrison, his heirs and assigns, forever, the one undivided interest and half "part of Mary Ann Forge, with the land and stock thereto now belonging, and the undivided half of all the horses, wagons, "tools, houses, household furniture and implements of every kind and de-' scription, attached to and properly belonging to the said premises and concern. Subject nevertheless to all mortgages' and judgments now binding on the said premises, that is to say, the one half part of the said mortgages and judgments, and subject also to the payment of the oné half of.'the outstanding debts, contained in a schedule hereunto annexed, In consideration of which, the said Morrison agreed to discharge and fulfil the contract between the said Vickroy and Conrad Piper, paying to the said Piper twelve tons of bar iron, agreeably to the said contract. The’ sums due by the said Piper to the late firm of Piper and Vickroy, to be deducted therefrom. And the said Vickroy and Morrison thereby entered into partnership, to carry on the said forge, at their joint expense, and to be equal sharers in the profit and loss. And th.e said Vickroy, further on his part, agreed to manage the said works personally, with vigilance 'and fidelity, during the said partnership thereby entered into. And the said Morrison agreed to attend at Pittsburg from time to time, to contract for the sale of iron, and transact all business there that the firm might think necessary to promote their mutual interests. And it was further agreed, that neither "of the said parties should sell or dispose of their interest in the said forge and premises to any other person, without previously consulting the other partner, and giving him the refusal thereof, on the terms which may be. offered. And it was further agreed by the said parties, that in case any difference or dispute should arise between them, which they cannot otherwise accommodate, the same should be submitted to three respectable men, to be mutually agreed on by the said parties, whose decision shall be final.</p> <p>For the true and faithful performance of all and singular which said covenants and agreements, the said parties bound themselves to each other, their heirs and assigns, &c.</p> <p>To this agreement was attached a list of debts, as nearly as the same could be ascertained, among others.George Kim-#7.<?/, jun, 800 dollars.</p> <p>To this evidence the defendant demurred, and prayed the judgment of the Court that it wás not sufficient to entitle the plaintiff to maintain his action : the defendant joined in the demurrer, and the Cburt rendered judgment for the plaintiff; the counsel having, before the jury were discharged, agreed, instead of assessing contingent damages, by the jury, that judgment should be rendered for the sum of 1108 dollars, 65 cents, if the Court’s opinion should be in favour of the plaintiff,</p> <p>The Court erred in allowing the bond to be read in evidence, because it did not correspond, with the bond set forth in the declaration. The declaration throughout, speaks of the bond, as the bond of Piper and Vickroy ■; whereas the bond given in evidence, is signed and sealed ’only by Piper, /or Piper and Vickroy, and is not the bond of. Piper and Vickroy, but of Piper only. The bond of one partner is not the bond of both partners. 1 Dali. 119. That such a bond existed as that averred, was. a material fact. It was not merely requisite to shew the'amount due. If it be considered, as evidence only for that purpose, then the proof is deficient in not shewing such a bond as,the declaration alleges.</p> <p>.The evidence given, in the cause, did not support any of the'counts in the declaration. There is no bond of Piper and Vickroy p.roved,' as is there stated : nor that Berkey was about to pay the bond and put it in suit: nor that the defendant below had requested Berkey. to delay suing or to give time to Piper and Vickroy ; he .spoke with Kimmel, not with Berkey.. There is no proof that the defendant below, assumed to pay Berkey or in any way to indemnify him. Nor is there any evidence that Berkey paid the money to Kimmel, but the reverse is expressly proved. There was no contract with Berkey. Kimmel states, that he does not know that Berkey was informed that the defendant below,would pay the bond. Further, there is no proof that the defendant below was to pay on demand: if at all, he was to pay after nine months. And lastly, there is no proof of notice to the defendant below of the nonpayment, unless his payment of interest can be so considered. ' It is a general rule, that in all actions of assumpsit on special agreement, the cont.ract must be proved precisely as it is laid. Gilb. Evid, 386 to 390. 2 Serg. Rawle, 68. In 2 Johns. Rep. 213, this rule is recognised and established on facts similar to the present. The terms of the partnership.entered into by Morrison, did not make him liable for Piper’s debt. If the money was borrowed by Piper for the use. of the partnership, so as to give an equity against the partnership funds, it ought to have been so specially alleged. Giving a bond is no payment to support the allegation that Berkey had paid the mohey to' Kimmel, particularly as it appears that the bond is not paid, and the amqunt is claimed out of Reed’s property. 8 Johns. Rep. 156.</p> <p>'The second .and third counts are equally unsupported. The giving a new bond • and security in lieu of a former bond, is not payment so as to'support a count for money paid, laid out and expended to the use of the defendant, any more than to support a count upon a special contract when such averment is made. As to evidence of money had and received, it is out of the question. No proof was given on that point.</p> <p>1. As to the bill of exceptions. There are three counts, and it is sufficient if the bond was evidence on any count. The special count only states that Berkey was security in a bond in behalf of Piper and Vickroy, not with him.</p> <p>2. The law implied a promise from Morrison to pay this bond by virtue of the transactions between the parties, and the evidence shewed an express promise to pay it. The jury had a right to infer that Morrison had in his hands property to the amount. Giving up the one bond, with a receipt in full upon it, and taking another, on which judgment was entered, was to all intents and purposes a payment.</p>

In Error. Common Pleas of AUégKeny ERROR to the Court of county. in. the Court below by Sarah This was an action brought Irwin against Nicholas Cunningham., to recover for- necess'aries furnished to Mary Magee, who was alleged to-be the' wife .of the said Nicholas Cunningham.

<p>If there-24th March, male previous of moneyVpaíd by a purchaser at a aser at a sale f , , . . , , e for taxes do not appear to have been made to the real owner, but is to the original warran5. on a demurrer to evidence, such original warrantee will be presumed to he the real owner.</p> <p>The Act of 29th March, 1817, authorising the recovery ot certain money i was not an Act dissolving a contract without the consent of parties. Tho a nr 9.9th March. 1817, authorising recovery money com-</p>

<p>APPEAL.</p> <p>THIS was an appeal from the Orphans’ Court of Westmoreland county, by the executors of Henry Hoffman, deceased, who settled their administration account in that Court. There were several items of which the appellants complained, but the points to which the consideration of the Court was now directed, were: 1st, Whether the executors were liable to be charged with interest on the money of the testator which came to their hands, and to what amount, and 2d, What share of that interest belonged to Eleanor Hoffman, deceased, the widow of Henry Hoffman.</p> <p>These questions depended on the will of Henry Hoffman, andan Act of Assembly passed the 28th March, 1814, entitled, “ an Act for the relief of Eleanor Hoffman.” Henry Hoffman died in the year 1802. He devised by his will to bis wife Eleanor, all the tract of land on which he lived, con-ta'n'nS about 49 acres, for her life, she committing no waste or destruction therein. He also bequeathed to her 100 pounds in money, and a legacy of sundry specific articles, after which he devised as follows. “ Ail which the said Eleanor may dispose or as she sees cause, except the above mentioned tract of land, which said land I allow to be sold after her decease, and the price, with what money may be on 71 ' v hand, and indebted to me, (after paying the following legacies and funeral expences,) I allow to be laid out in building a.Dutch Lutherian Church, where it will be most convenient to this place.” There were debts due to the testator by bond ' and otherwise, which were received by his. executors at different times, with the interest due on them up to the time of payment. The Act of Assembly, after reciting the devise to the wife, and the Church, and that <« she, the said Eleanor, from necessity expended, in improving the premises and other unavoidable expenses, all her (share of the personal estate, and is now old and infirm, and the proceeds of-the-land are in no wise adequate to her maintenance, and that money bequeathed for building the church aforesaid is still in the hands of the executors, uncalled for.,” proceeds to enact, that “ the interest on any money bequeathed for' the building of a Dutch Lutherian Church by Henry Hoffman, and which is yet in- the hands of his executors, shall be and -the same is hereby appropriated to the support and maintenance of Eleanor Hojfman widow of-said Henry.” It. was agreed, on both sides, that the above Act of Assembly was to be considered as valid, and that the executors were bound to place out the money at-interest, after that .act, and to pay such interest to the widow during her life.</p> <p>contended, that-the executors were not liable for interest on the money received by them on account of the debts of the testator, during the period anterior to the passage of the Act of Assembly. The will gives to the church all the money- on hand, and the money arising from the sale of the land after the wife’s death.. There is no direction to put the money out at interest. When the executors are accountable for interest, it is for the benefit of the next of kin only, and not for the benefit of a charity. -The executor is a trustee as to the undisposed surplus only for the benefit of the next of kin.- Gftasser v. Eckhart, 1 Binn. 575. 3 Binn. 557. 1 P. Wms. 54' C. 2 P. Wms. 158. 2 Atk. 18. % Brown’s Ch. Gas. 654. So the Act of Assembly of the 7th April, 1807, provides that’ the undisposed residue shall be distributed among the next of kin. In Wilson v. Wilson, 3 Binn. 557, where this Court’decided, that in Pennsylvania the executor was a trustee as to the not disposed of the will, and not the beneficial taker, he was held to be s.uch trustee for the use and benefit of the next of kin. In the present case, the testator died without any known kindred, therefore, the interest, if any was received, not beinsr given to the widow or charity, must enure to the executors for their own use. -By the Act of 27th March, 1813, Sect. 4. 1 Sm. Laws, 83, administrators, executors, and . , , . guardians are required to put the money ox minors out to mterest; and by Sect. 6, they are answerable for interest from the time when their accounts are of ought to be settled. No one c-ould call these executors to account, till after the widow’s death. As trustees for the charity, they were bound to keep the money ready, and therefore could not-put it out at interest.. Tbe money was to be paid at the widow’s death, and that was uncertain. The motive of the Act of Assembly was, that there was money in the hands of the executors not called for by the charity ; that the widow had improved the land at her own expense, and was old and unable to live on the profits of the land. It, is presumed, the Legislature thought no interest had been received, as it appears their in-, ’tent was, that from that time the money should be put out to interes,t, and the interest paid to the widow. She never demanded any arrears of interest in her life. The Legislature did not intend to take from the charity any thing which belonged to it. Now the whole debt which had been received, principal and interest, belonged to the charity in the event of the widow’s death j but still it might lie idle in the hands of the executors, and consequently it was not wronging the charity to order the money to be put to interest,- and the interest to be paid to the .widow. If the executors put out the money before, it was at their own risque, and therefore they ought not to pay interest.</p> <p>' The fund consisting of the debts and interest upon them received by the executors, after the decease of the testator and prior to the death of the widow belonged to the charity, and as. accessary thereto the interest received after the widow’s death,. The interest received'by the executors or which they might .by proper diligence, have made, during her life, belonged to her.' There was no surplus undisposed of by the will; no residue which could go to any person. By the will, the intention is manifest that the widow was to have the use of the money as well as of the land, which are disposed of in the same clause. The Act of Assembly appropriates the interest on any money in the hands of the executors to the maintenance of Eleanor Hojfman, without discriminating whether it accrued before or after the passage of the Act: and its intent appears to be to comprehend both; it was to indemnify her for money expended in improving the land. It is clear that the executors have no beneficial claim to the interest accrued. If the devise to thq charity were void, the Commonwealth would take, there being no next of kin. The executor is liable for interest on money in his hands though not directed by the will to be put out to interest. In 7 Bac. Abr. 182, it is laid down that a trustee is liable for interest- where he has been guilty of neglect in not putting out the money, or where he has made interest by putting it out.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Indiana, COUIlty*</p> <p>This was an ejectment brought in the Court below, by J . Hugh Rankm, against John Allison, to recover 430 acres of land, and-three-fourths of an acre,, in Centre 'township, Indiana county. The plaintiff gave in evidence, a warrant to William Marshal for 400 acres, dated the 24th November, 1786, and a survey made thereon, on the 13th January, 1787, for 430 acres, and three-fourths of an acre. He then „ , , r . , ■ offered m evidence, a scire jacias, issued upon a mortgage to October Term, 1789, in which Hugh Rankin was plaintiff", and William Marshal was defendant, on which the Sheriff returned nihil and no terre-tenantr A rule was then taken, on the 23d November, 1789, to plead in six weeks ór ment, and judgment was entered thereon according to the j-uie< On the 24th November, 1789, a levari facias was issued, on which the Sheriff returned the land sold to the plain» The plaintiff at the same time offered in evidence, a mortgage from William Marshal, dated the 26th December, 1787, reciting that William Marshal avid. Hugh Rankin, were bound in. an obligation to Colin Campbell, for the payment of fifty-one pounds, and conveying 225 acres, and three-fourths of an acre of land, to Hugh Rankin, conditioned for the payment of the said fifty-one pounds to Rankin, in discharge'of the debt due to Colin Campbell. To this evidence the plaintiff objected, but it was admitted by the Court, and' an exception taken.</p> <p>The plaintiff further offered in evidencé, articles of agreement made between William Marshal and Simon Elliott, on . the 14th February, 1787, by which the parties stipulated, in consideration of thirty-seven pounds, ten shillings, in hand, •paid to Marshal, that they should be equally interested in the said land, (except a small portion thereof, which was reserved by Marshal^)-and Marshal was to give Elliott a deed for the share that should fall by lot to him, and an assignment made of his interest in these articles hy,Elliott to Rankin, on the 24th November, 1791. The defendant also excepted to this evidence, but the Court admitted it, and sealed 'another bill of exceptions.</p> <p>The defendant then offered in evidence, a patent to the defendant from the Commonwealth, for the land in question, which recited a sale thereof for taxes, by the commissioners of the county, to one Allison, and a deed from Allison to the defendant. The plaintiff objected to this evidence, and the Court overruled it. The defendant- thereupon excepted to the Court’s opinion. , > ■</p> <p>contended, that nihil was not a good return to the scire facias, and if.it were, there should have been an alias scire facias, before judgment could be entered. This judgment was irregular; and might be considered a. nullity. 2 Binn. 46. Ejectment would not lie on the articles. At all events the patent was evidence.</p> <p>insisted, that the patent was not admissible. It recited a title, no part of which was proved. The Commonwealth cannot make a title for a grantee, so as to divest that of a third person claiming under warrant and survey. If the patent were read, it might happen that the party would not be able to produce the evidence of the title recited, and then it would 'be altogether irrelevant and useless. Such evidence is, in its nature, primary,'. and should precede the production of the patent. He cited, 1 Binn. 88. 2 Berg, Sí? Rawle, 280. 450.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Erie County.</p> <p>This was a scire facias on a recognisance, in the sum of5000 dollars, entered into on the 16th of October, 1816, by the plaintiffs in error, defendants below, Stephen Wolverton, Rufus S. . 1 J Reed, and Benjamin Wallace, to the Commonwealth oí Pennsylvania, conditioned that Wolverton would perform the office of Sheriff, for the county of Erie, for the next three years. The scire facias was for the use of Eli Hart and John Lay, trading under the firm of Hart Co., and was returnable to December Term, 1817. It alleged generally a breach of the condition. The defendants pleaded generally that Wolverton had well and truly performed all the duties of a Sheriff, faithfully executed all process, paid over all monies, &c. The plaintiffs replied, setting out a particular breach, that on the 1st of May, 1817, a certain Edwin Forbes was committed to the gaol of the county, and in the custody of the said Sheriff, by virtue of an execution issued by George Moore, a justice of the peace, at the suit of Hart, & Co. for 117 dollars and 77 cents, on a judgment obtained by confession, pursuant to the Act of Assembly, and that the Sheriff suffered Forbes to escape and go at large. The defendants rejoined, denying, that Forbes was in custody under the execution, but averring that having applied for the benefit of the Acts of insolvency, he had, at his examination, been committed under those Acts, on a charge of fraud, which the defendants insisted was a virtual discharge of his person, under the execution. The plaintiffs sur-rejoined, that Forbes was in custody under the execution, and on this issue was joined.</p> <p>On the trial of the cause, the plaintiffs offered in evidence a transcript of the judgment of the justice. This was objected to by the defendants, because it was not authenticated under seal, and because the docket itself was the best evidence, and ought to be produced. The Court, however, overruled the objections, and admitted the evidence, and the defendants excepted. The docket itself was afterwards produced and given in evidence by the plaintiffs.</p> <p>The plaintiffs also offered parol evidence of the existence of an execution against Forbes, having first given notice to the defendants to produce the said execution. The admission of which said testimony was then and there objected to by the counsel of the defendants, on the ground that a record could not be proved by parol evidence.” This objection was overruled by the Court, and the testimony admitted, and an exception taken by the defendants.</p> <p>The defendants offered in evidence, the petition of Forbes, together with the schedule of his debts, credits arid effects, and all the proceedings of the Court of Common Pleas on the petition. The plaintiffs objected to this evidence, and the Court rejected the evidence, declaring, that in the above case of an escape, it is immaterial what the circumstances of Forbes were, whether.he was solvent or insolvent; and that it was not now competent to the said defendants to shew the insolvency of Forbes, even if they were able to do so; and that the said schedule was irrelevant and inadmissible. To this decision, the defendants excepted. The jury found/ a verdict for the plaintiffs for the amount due to them by Forbes, for which judgment was entered.</p>

<p>If an award of referees in the Court beStsface8this0" Court will not on a writ of error enquire into exceptionsmadeto the proceedingoftherematters of° tact or matters of law before and if the evidence, and documents on these points 'are blended by the Court below with thp record returned, this Court will pay no regard to them, ' ,</p>

In Error. ERROR to the Court'of Common-Pleas of Allegheny county. - : Debt on: bond, brought by James Burd, for the use of j0fm Wilkins, and James Ross, against James Semple. The facts, rs they appeared from the opinion of the Court below,' which was filed of record, were these. The bond; on which the action was brought, was given in part payment of a tract . _ . _ , 1 ' of land sold, by aura to ¿¡empte; a -conveyance of the land was made and possession delivered.

<p>If 8 father utle^nmiTin trust for his son, and they agree to sell f^hérreceivesthepurchase money and promises dehtsVf'his son, a creditor of the same, -who had pretainedjudg ieviedonthe la?d> may sustain ssumpsit fop money had agfinsuh^fa.,</p>

In Error. ERROR to the Court of Common Pleas of Crawford county, in an ejectment brought by Wilhelm Willink and others against Ralph Marlin. / On the trial in the Court below, the plaintiffs gave in evidence articles of agreement made between them, and'the'defendant, on the 26th September, 1808, for the sale of the land to the defendant.

In Error. • ERROR to the Court of Common Pleas of West- , 7 ' 71lOTCldTld county.. t This was a homine replegiando, brought by Susannah Stokely against John B. Alexander, to try the right of the plaintiff below, defendant in error, to the services of a negro girl ' ° o named Nance. Nance was- the daughter of Milley-, a coloured woman.

<p>In Error.-</p> <p>ERROR to the Court of. Common Pleas of ------ . . . • ■ "• . county, in an ejectment. ,.</p>

In ERROR. ERROR to the Court of Common Pleas of Beaver County, On a scire facias post annum et diem, in the Court below, the suit of Frederick Rapp against Francis Helvete, to rev*ve a judgment, William Wilkins, a judgment creditor of Francis Helvete, appeared, and pleaded nultiel record: the plaintiff replied, habetur tale recordum; and rule to bring in the record. The record when produced was as follows, 4 Frederick Rappq Francis Helvete.

<p>The omission in a decíaration in a suit on a special agreement, to allege specially the breach of the agreement or notice to the plaintiff to perform it, are cured bv ver* diet.</p> <p>fo^he pu?chase money, deed7 u only ^dmice^and may be rebutdence.67*'</p>

<p>A paper, purpoi ting to be an original the office of toST' found among the papers of a deceased deputy surveyor, in the hands of his executor, is evidence, if it be proved that the body of the writing and the indorsements were the hand-writing of several persons who had been deputy surveyors or assistant deputy'surveyors of the county. * .</p> <p>An exemplification certified by the recorder of a county of a deed, conveying lands lying in that and another county, is evidence in a dispute concerning the latter.</p> <p>A deed under the seal of a banking corporation within this State, incorporated by Act of Assembly, is not evidence, unless the seal be proved. It is not necessary'that such proof should be by one who saw the deed sealed; but the impression must be proved by some one who knows the motto, devices, &o. ' '</p> <p>The Act of 17th March, 1787, enabled the Bank of North America to have, hold, purchase, receive, possess, enjoy, and retain lauds, rents, &c., and also to sell, grant, &e. the same lands, &c., provided, that such lands and tenements, which the said corporation was thereby enabled to purchase and hold, should only extend to such lot and lots of ground and convenient buildings, &c. as they might find necessary for carrying on the business of the said hank, See. and should actually occupy 5 and to such lands and tenements which were or might he bona fide mortgaged to them as securities for their debts. Heidi that the bank might purchase absolutely lands in a distant county which they did not occupy, though their title, like that of an alien, is defeasible by the Commonwealth ; and if they convey to a third person without claim by the Commonwealth, such third person holds the same estate defeasible in like manner.</p> <p>Where the Court below, after a preliminary inquiry, admit «evidence of a vailing alleged to be lost, it must be a strong case, to induce this Court to interfere in error.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Adams county.</p> <p>James Guriy, the defendant below, was the indorser of a promissory note, drawn by Richard Brown in his favour, dated the 19th of December, 1815, and payable in 120 days from the date, which was discounted by the Gettysburg Bank. A payment in part was made on the 20th of April, 1816, and the note was, on the same day, regularly protested. Notice of the non payment of the residue was given to Guriy, on the 25th of April, 1816, and a demand made on him. In September following, another portion of the note ivas paid, and this suit was brought by the Bank to November Term, 1816, to recover the balance. Several questions were raised in the Court below, but eventually, the only point on which this Court were called on to express their opinion was, in relation to a part of the charge of the Court below, which was excepted to by the defendants below, and was as follows. “As to the first point on which our opinion is requested, we say, that the law respecting notice, is founded on particular circumstances. Therefore, the law which is reasonable in London, or in any of our large cities, would not be suitable and convenient in many parts of the country. One day in London is said to be too great a lapse of time in giving notice to an indorser of non payment by the drawer. This strictness in the country is often entirely impracticable. The rule, therefore, must of necessity be varied, and it must be varied to suit the particular circumstances of the case. The distance, the state of the roads, &c., are facts, that must be taken into the calculation. The reasonableness of the notice therefore, depending on the decision of facts, must be left to your determination under all the circumstances.”</p> <p>now contended, that whether the notice was reasonable or not, was matter of law, and that five days was too long to wait before g;'ing notice to the indorser. He cited, Chitt. on Bills, 224, 225. 380. Taylor v. Bryden, 8 Johns. 133. 11 Johns. 187. Irelandv. Kip, 11 Johns. 231. Hussey v. Freeman, 10 Mass. Rep. 84. Fishery. Evans, S Binn. 541. Barton v. Baker, 1 Serg. Rawle, 334. Act Regulating Banks, passed March ,21st, 1814, Purd. Dig. 59.</p> <p>contended, that reasonableness of notice to the indorser of a promissory note is, by the law of Pennsylvania, matter of fact, to be decided by the jury, and cited Robertson v. Fogle, 1 Dali. 252, (1788.) Bank of North America v. MlKnight, 2 Dali. 158, (1792.) Mallory v. Kirwan, 2 Dali. 192, (1792.) Bank of North America y. Pettit, 4 Dali. 127, (1793.) Warder y. Carson’s Executors, 1 Teates, 531, (1795.)- "</p>

In Error. ERROR to the Court of Common Pleas of Franklin county, 4 William!Reynolds and James Campbell, executors of John Reynolds, deceased, brought this scire facias in the Court below, against George Coyle, heir of Henry Coyle, and David & Conner terre-tenant, on a judgment against the said Henry Coyle, entered at March Term, 1787.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Cumber- » » ' . t Ifflld County. *</p> <p>This was an ejectment for 200 acres of land in Cumberland county, brought by Gilbert Moon and Philip Leonard, defeti-. dants in error, and plaintiffs below, against John Creek and Catherine Creek, The plaintiffs below claimed under a warrant to John Ramsay, dated the 6th February, 1775, “ for 150 acres of land, adjoining his other land, and. land of Alexander Power, in Rye township, Cumberland county, interest to commence ist March, 1772.” On this warrant a survey of 328 acres and 112 perches, with the usual allowance, was.made by James Harris, on the 12th March, 1783, and returned on the 4th April, 1783. Ramsay conveyed to Jonathan Williams, on the 25th March, 1783, and a patent .to Williams was issued on the.-14th April, .1783. He conveyed to John Field and Mordecai .Lewis, in trust for his creditors, by deed dated the 7th April, 1787, and John Field, who survived Mordecai Lewis, agreed to sell and convey to Philip Leonard, by articles dated' the 11th October, 1811. Philip Leonard, executed a declaration of trust to Gilbert Moon, on the 18th December, 18 11'.. ' ; '</p> <p>The defendants made title, under a warrant to Patrick M’-Gary, dated the 18th November, 1803, “ for 300 acres of of land, including an improvement, adjoining, lands of John Ramsay, &c., interest to commence 1st March, 1771.” Parol evidence was given of an-improvement by John M‘Lane, about the year 1771, not on the land in dispute, but near it j and supposing the defendants to be entitled to 300 acres by virtue of that improvement, they might include the disputed lands in their survey. -The defendants endeavoured to connect their title with MiLane’s improvement, and gave evidence for that purpose. On the other hand, the plaintiffs also gave evidence to shew, that the land in dispute belonged to Ramsay, who had made an improvement on or near it in 1772 ; and, in order to destroy the title set up by the defendants under M-Lane, they gave evidence tending to prove, that M‘Lane made his improvement on 100 acres of land purchased by him of Ramsay, and that these-100 acres included no part of the land in-dispute, and MiLane never made any claim to them.</p> <p>The defendants’ counsel requested the Court to charge the jury on the following, among other points.</p> <p>1. That the granting a patent to Williams, was prima facie,, evidence, that the prerequisites to the obtaining of a patent had been complied with; but that it is only prima facie evidence, and the defendants may prove that the prerequisites have not been complied with. That if the survey made by James Harris was a private one, and not intended to be returned into the surveyor general’s office^ the patent to Williams, issued improvidently and erroneously, and vested no title in the plaintiffs, or those under whom they claimed.</p> <p>2. That oñ a warrant granted the 6.th February, 1775, for 150 acres, and a survey on the 12th March, 1783, on such warrant, when an adverse claim existed, 328 acres, and 112 perches and allowance, could not be surveyed, though done by a legal officer. .. ; .</p> <p>The Court charged on these points, as follows.</p> <p>1. The granting a patent to Williams was prima facie evideiice that the prerequisites to the obtaining a patent had been- complied with'; but it is only prima facie evidence, and the defendants may prove that the prerequisites had not been complied with. If the survey made by James■ Harris was. a private one, and not intended to be returned into the surveyor general’s office, this alone would be insufficient; but in connection with all the other circumstances, we think the patent vested a.sufficient title in Williams, and those claiming under him, o.n which to authorise the plaintiffs to recover.</p> <p>3. On a warrant granted on the 4th February, 1775, for 150. acres, a survey Of the 12th Márch-, 1783, for 328 acres, 112 perches and allowance, if returned, accepted, and a patent granted, is valid, .although an adverse claim have existed at the time predicated on, an adjacent improvement. No complaint having been made from 1783, it may be presumed such claim .is relinquished.</p> <p>The defendants excepted to the charge of the Court.</p> <p>!. That the land officers had no right to grant a patent upon a private survey.. The Act of 9th 'April, 1781, sect. 3, » declares, that “ the surveyor general shall have power to appoint a deputy or deputies in any county of this State, who shall have power to make and return into the land office, surveys only in the county for which such deputy or deputies shall be appointed, for the conduct of which deputy of dé.puties, the said sufveyor general shall be responsible.” This act does, substantially forbid a’ survey to be executed and returned by any but the surveyor of the district. It is bindingoñ the officers of the land office, and they had no right to depart from or dispense with it. They cited Bixler x. Baker, é Binn. 213. ‘</p> <p>2. Though by the practice of the land office, and the decisions of the Courts, the party may survey more than a surplus of ten per cent, on the quantity contained in a warrant issued since Í767, yet it is well settled, that he cannot do sb to the prejudice of a third person, who has an interfering claim. The law on this subject is fully stated in Kyle’s Les-, see v. White, 2 Sm.Laws, 164. Steinmetz v; Young, Ib. 166. Blair v. M'Fee, Pittsburg, 1820, 6 Serg. Rawle, 193.</p> <p>1. The land office having accepted the survey, it is immaterial who made it; It is binding on the Commonwealth. In Harris’s Lessee v. Monk, 2 Serg. & Rawle, BS7, it is held, that the surveyor general may appoint a special agent to execute a survey, whether that agent were a deputy surveyor or not.</p> <p>2. The Court is to be understood as leaving it to the jury to judge, whether there had been an abandonment of the adverse claim or not. If there was, the case was the same^ as if there had never been an adverse claim, and, in that case, ' the survey would have been good, according to the principles decided. , •</p>

In ERROR. Robert Wray and Moses Kelly, brought this action of ejectment in the Court of Common Pleas of Huntingdon county, and recovered 100 acres of land in that county, and ' J this writ of error was. brought by James Simpson, the defendant below7. As the paper title of James Simpson was the oldest, the case will be best understood, by stating that title in the first place, and then shewing in what manner it was encountered by' the title: of the plaintiffs below.

In Error. ERROR to the Court of Common Pleas of .Franklin county, in an ejectmént brought by Samuel Blythe against .John MClintic and Matthew Duncan, in which there was verdict and judgment for the defendants in the Court below. J ° .

■In Error. ERROR to the Court of Common Pleas of- Franklin . COUnty* . . , . . Phis was an ejectment for 25 acres of land' in Franklin county, brought against George Brindle and John Brother - ton by.

In Error. .ERROR to the Court of Common Pleas of Cumberland county. A case was stated in the Court below, and agreed to be . ’; ° considered in the nature of a special verdict, in a suit brought there by appeal from a magistrate, in which Joseph Worley, the defendant in error, was plaintiff, and William Clark Was ' . 4 ; defendant.

<p>-In Error, \</p> <p>ERROR to the Court of Common Pleas of Adams ___. . COUnty* . J ,</p> <p>. . -r% ■ , This action was brought by the plaintiff/C. Jxeedj on a b°nd in which William Garvin, deceased, was bound jointly with Philip Stentz, who was still living. The defen-' dants pleaded in bar that judgment had been obtained' on the bond against both obligors in the life time óf William Garvin, which judgment was in full force, &c. The plaintiff replied J 1 r nul tiel record, and on this the parties were at issue in the • Court below. It appeared by the record produced by the defendants in support of their plea, that a suit had been brought against, both obligors, which was submitted to arbitrators under the compulsory Act, and an award made in favour of the -plaintiff and filed in the office of the prothonotary according-to law. An appeal was entered within twenty days, and. security given. William Garvin di.ed pending the appeal, and the other obligor Stentz, disavowed the appeal by an entry on the docket signed by him.</p>

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Cumberland county,</p> <p>This was an amicable action to recover damages for nonperformance of a contract, not exeeding 100 dollars, brought by Redmond Condy against Michael Dawson, and entered by ' ' agreement of the parties before a justice of the peace of Cumberland county. All matters in variance between the parties, were agreed by them, before the justice, to be referred to three referees, who oh the 21st August, • 1820, awarded in favour of the plaintiff; for forty dollars and costs. On the 24th August, 1820, the defendant, Dawson,- appealed to the Court of Common Pleas, and entered security. In September, 1821, the Court on motion of the plaintiff, granted a rule to shew cause why the appeal should not be struck off, on the ground that the parties had agreed that the award of the referees should be final, and that no appeal should be made from their award. There was no such agreement in writing of record before the magistrate, or in the Court, below, or now produced, but the plaintiff alleged, that it was a verbal agreement between the parties, made at the time of their agreeing to enter the action before the magistrate, and also, while the case was pending before the referees. On these points the depositions of the magistrate and referees were taken, by virtue of a rule to take depositions, granted by the Court below, and were now returned with the record, The Court of Common Pleas decided, that such agreement had been verbally made at the time when the parties agreed to enter the action before the magistrate, and that by, this agreement the right of appeal was taken away. They therefore dismissed the appeal.</p> <p>1. That an agreement not to appeal is not binding, unless it be in writing. 2. That there was no evidence to prove the alleged agreement. The witnesses contradicted each other. .</p> <p>contended, that the appeal was properly dismissed, as being in violation of the agreement of the'parties,. There could' be no question but such an agreement would be binding if it were in writing. It -was decided in Galbreath v. Colt, 4 Yeates, 551, that an agreement filed, that there shall be no'appeal, is binding. ■ An agreement not to take a writ of error is binding. 2 Binn. 169. An|agreement of recordnot.to appeal is binding. 4 Mass. Rep. 516. There is no rule of law or reason which requires that such an agreement should be iniyriting: more especially where it is ‘á part of the agreement to refer, and prior in time to the appearance- of the parties before the magistrate.</p> <p>observed, that he could find no case where an .appeal had been dismissed on account of an agreement not to appeal, unless the agreement were in writing. In all thexases cited, the agreement was of record. In the present case, the agreement was by .no means clearly proved. ■Besides, the agreement to refer in the, usual way was of record, and cannot1 be varied by parol evidence.</p>

In Error. ÉRROR to the Court of Common Pleas of Hunting- ■ » ° don county* ' . . . . . . Patrick Givin, the plaintiff below, brought this, suit against George Hy skill, before á justice of the peace, to recover fifty dollars and interest, for the price of a tract of latid sold by t ' , 4 » him under an execution as Sheriff of the county, to George Hyskill, the highest and best bidder therefor.. TVipro «rae “ere was an appeal to the Court'below, from the judgment of the ticé.

<p>If a tenant agree to purchase land of one who purchased from made some mouths after, the landlord, and a conveyanee is tobe up to which time the tenant pay the sam.e rent as at present^ It is a surrender of the lease, and the purchaser is in possession. ’</p> <p>The Court are hound to decide, on the cbnstruction of a written instrument, where matters of fact are not intermingled, and it is error in such case to leave the construction to the jury.</p>

<p>, T!'e regístor oi wills is aot entitled to °^wo fifty cents, tor examining and — passing rhe guardian^**</p>

In Error. ERROR to. the Court of Common Pleas of Adams county5ln homine replegiando brought by Henry Butler and Charity his wife, and Harriet Butler and Sophia Btitler, their children, against Jphn Delaplaine.

In Error. THIS was a writ qf error to the Court of Common Pleas of Bedford county, in a suit brought by' the County of Bedford against Samuel Riddle.

Case Stated, THIS was an ejectment for a house and lot in German-town., brought by Davis Bevan against Samuel Taylor and Mary Rainey, in which the following case was stated for the opinion of the. Court. William Forbes and Mary. Bevan, were- married and had issue one child, Nathaniel Forbes.

A judgment was recovered in this Court, at December Term, 1799, by Peter Lesley against Benjamin Nones, the defendant. The plaintiffs issued.a scire facias post annum et diem, on this judgment, to December Term, 1818.

In Error. ERROR to the Court of Common Pleas of Montgo- . mery county. . . . ,, ,■ 1 , , This was originally a proceeding under the 10th and 11th sections of the .Act of 8th March, 181-5, entitled an Act to authorise the Governor to incorporate a company to make a , . , . rr 7 .7 • 77 • • 1 1 -V I lock navigation on the river Schuylkill, instituted by John Thohurn, the plaintiff below, against the President, Managers -and Company of the Schuylkill Navigation Company.

AT a Court of Óyer and Terminer held by Tilghman C. J: and Gibson J., for the city and county of in November, 1821, Joseph Gable, William.

<p>partners on ground rent, and buildings erected thereon, for the Heal estate taken by purpose of carrying on glass-works, afterwards mortgaged by one partner without notice to the mortgagee of partnership debts then existing, is to be considered as between the mortgagee and the partnership creditors as real estate, and liable in the first instance, to the mortgagee.</p>

<p>Under the^ the Act of 3d the^vhoief’ twelve view-era must be sworn; if only ten of the twelve appointed by the sworn *and proceed to act, their proceedings are 1</p> <p>appointed and sworn, two who do not right tobea present and give theiropinionsatthe wWehafter* wards take I>laoe‘</p>

<p>Case Stated.</p> <p>THE plaintiff was inspector of salted provisions for the city, county, and port of Philadelphia, and brought this suit against the defendant, to recover certain fees for repacking salted beef; and the question submitted to the Court was, upon a case stated, whether the plaintiff, besides his fee for inspecting and branding, Was entitled to a. fee . of one shilling for repacking, performed in the month of November, 1819. .</p> <p>relied, on the provisions of the Acts of Assembly of the 18th of August, 4727, the 12th of March, 1789, the 20th of April,- 1795, and the 28th °f March, 1814, and referred-to- Garigues v. Reynolds, 6 Binn, 330. •</p> <p>contended that the fee bill of jjle 28th of March, 1814, precluded the*plaintifPs claim. It gives a fee of twelve and a half cents, for inspecting and branding, and prohibits any greater or other fees than are provided by the Act, (sect. 26.) ,</p> <p>In reply, it was contended, that the latter part of the section only prohibited compensatory fees “ for any services not specified in this Act, or some other Act of Assembly,5’ and, therefore, the section did not apply to the plaintiff’s claim, under the Acts of Assembly, then and still in existence unrepealed.</p>

<p>To say of another “ you got to bed with Sarah M.” is actionable.</p> <p>Ty^d^hets ?“ch a whorthat it is with ^keep a6 giriaboutthe house being continually a riding them.” - Soalsoare the words,“he (the plaintiff meaning) has committed fornication,” notwithstanding the declaration avers that the plaintiff was, at the time of uttering the words, a married man.</p>

<p>Under the education of the ist°dis-f trict, the con-trailers have a right to refuse to draw an order for payment-of a larger sum for the education of children in the 7th section, than is paid in the other sections of the district, though such sum be , agreed to by the directors of such 7th district. , 1</p>

<p>THIS cause was tried before Duncan J. at Nisi Prius in November last, and a verdict was found for the plaintiff.</p>

<p>A minority of the persons m whom a trust of a and°sehooUs vested by deed,cannot by associating a'ohirterof11*’ incorporation a*giu to the management “he ■will of the mainterested1.10SS</p>

<p>was°made for of amTommodation notes' indorsed for 3o aító^exoneratethemaKeps or indorsersofsaid thefr liability, ^bMdiwn1 on the assignaccommodation, in favour of and mdorsed by the aecepTed^nd neg°cmtedj)y L embracedS* se!iption.l8de" Where an assignment 2. counts signorsínd*3" the drawers of such paper ¡s to be taken into consideration, and the remainder after deducting such balance, to be paid to the holders.</p>

<p>• PARTITION by Thomas M. Willing and Jane his wife, and Henry Nixon against John H. Brown, tried before Duncan J. at Nisi Prius in November last, and verdict for the plaintiffs. The defendant now moved for a new trial. 1 *</p>

<p>A count in cL'rgi'ngThaf soMa lottery ticket and tickets, in a lottery not authorised by the laws of the Commonwealth, is bad for its generality. It should specify the name of the lottery, and the number of tickets sold. ^</p> <p>But a count, charging a conspiracy to sell a lottery ticket and tickets, in a lottery not authorised bythelaws of the Commonwealth, isgood.</p> <p>It is no objection on demurrer or in arrest of judgment, that several distinct offences of the same nature, are joined in the same indictment, whether in misdemeanour or felony: but the Court* might, in their discretion, compel the prosecutor, in felony, to elect on what charge he would proceed.</p> <p>Several persons may be charged in the same indictment, for the same, act, when the act admits of the agency of several.</p> <p>So, also, several persons may be charged in the same indictment, in different counts, for difffe» rent offences, though the Court, in its discretion, might quashsuch indictment.</p> <p>One may be made liable criminally for the acts of his agent, if he had a participation in them ? and the jury may deduce such participation from circumstantial evidence.</p> <p>A conspirator may be convicted in the place where theovert act is done in pursuance of the conspiracy* One .who procures a misdemeanour to be committed, is guilty in the place where it is committed by his procuree.</p> <p>' If the indictment charge that the defendant sold a lottery ticket, in the words and figures following, it must contain a literal recital of the ticket 5 and a variance in spelling a name, though the sound is the same, as, Burrill, tor Burrall, is fatal, * -</p>

<p>In ERROR.</p> <p>ERROR to the Court of Common Pleas of P hila delJhia county-</p> <p>This action was brought by Samuel P. Wetherill, plaintiff below, against William Jackson. The opinion of the Court 'below, delivered in their charge to the jury, was filed of record, at the request of the defendants’ counsel. It was now brought up by the writ of error, and was as follows :</p> <p>The defendant sold the plaintiff' a mare for 150 dollars ; but, after trial, alleging that she was not such' a mare as he ■ had contracted for, offered'to return her, and-demanded his money back. The defendant refused to receive her, or pay back the money. Whereupon the plaintiff sold her at the horse market for seventy-two dollars, thirty-eight cents, and now sues for the difference. It is testified, that before the plaintiff agreed to purchase the mare, the defendant told him, repeatedly, lie was sure she was perfectly safe, kind, and gentle in harness, and that the plaintiff, being satisfied as to her safety, purchased her. The Court are of opinion,-that no particular form of words is required by law to constitute a warranty, and that the communication, thus proved, did amount to a warranty by the defendant, that the mare was perfectly sáfe, kind, and gentle in harness.</p>

In Error. ERROR to the District Court for the city and county ■ ■ J .

<p>Where a statute inflicts a punishment lhat "'hicl' was an offence before, j wig-may be given for that punishment, though the indiciment Jo contra for-</p> <p>person has Jnced^tohard [“rmer'Tndiet ment, and the sonmenUsPnot yet expired, imprisonment ^¡¡y be passed on another indictment, to commence ^ former sentbnce is to expire,</p>

<p>In Error.</p> <p>ERROR to the Court of Oyer and Terminer for the city and" county of Philadelphia, held by the Justices of the J r * a • Court of Quarter Sessions. .</p> <p>Charles Coring, James Mitchell\ Charles A. Mitchell, Filatio Russell, Solomon Price, Adam Stoops, and-Cook, were indicted for burglary, in the said Court of Oyer and ° J1 - J „ Terminer, and Margaret Stoops and Ann Carson, plaintiffs in'error, were charged as accessaries before .the fact, with Elizabeth Mitchell. and Henry Parmelé, as áccessaries J after the fact, to all the principals. Lormp and Russell being ' arraigned pleaded guilty: James Mitchell and Charles A. Mitchell pleaded. not güilty, and were convicted. Price, Adam Stoops,. and Cook, never were tried or arraigned. The plaintiffs in error were afterwards tried. Margaret Stoops was convicted as accessary before and after the fact. Ann Carson was convicted of being accessary after the fact. Elizabeth Mitchell and Parmeli were tried and acquitted.</p> <p>The counts in the indictment now excepted to, were the following.</p> <p>1st count. That Charles Loring, Joseph Mitchell, Filatio Russell, Solomon Price, Adam Stoops and- Cook, on, &c., at, &c. the dwelling house of Thomas Mann, there situate feloniously and burglariously did break and enter with intent the goods and chattels, the property and monies of the said Thomas Mann, in the said dwelling house, then and their being, then and there feloniously and burglariously to steal, take, and carry away, and then and.there with force and arms, two kegs containing two thousand silver dollars, of the value of two thousand dollars of the goods and chattels, property and monies of the said Thomas Mann, in the said dwelling house, then and there feloniously and burglariously did steal, take, and carry away, &c.</p> <p>2d count. That Margaret Stoops, Elizabeth Mitchell, Ann Carson, otherwise called Ann Smith, on, &c., at, &c. did feloniously and maliciously incite, move, procure, aid and abet, counsel, hire and command, the said Charles Loring, Joseph 'Mitchell, Charles Mitchell, Filatio Russell, Solomon Price and Adam Stoops, todo and commit the said felony and burglary, in manner and form aforesaid, &c.</p> <p>3d count. That Henry Parmeli, Ann Carson, otherwise called Ann Smith, &c., Margaret Stoops and Elizabeth Mitchell, after the committing of the said felony and burglary, in manner and form aforesaid, on, &c., at &c., did feloniously and maliciously receive, comfort and assist the said Charles Loring, Joseph Mitchell, Charles Mitchell, Filatio Russell, Solomon Price and Adam Stoops, the said Henry, Ann, Margaret and Elizabeth, then and there, well knowing the felony and burglary aforesaid, in manner and form aforesaid, to have been committed, See.</p> <p>By the record it appears, that the plaintiffs in error were indicted and convicted as accessaries before and after the fact, to seven principals, four only of whom had been previously tried or arraigned, the remaining three never having been amenable to justice.</p> <p>Two questions present themselves for consideration on this part of the record.</p> <p>First, whether a party indicted as an accessary to several principals, can be tried without his previous consent, before the conviction or outlawry of all the principals.</p> <p>Second, whether such an accessary can be tried, (without such consent,) as accessary to any other principals, than those actually convicted. In the case before the Court, it would be sufficient to shew the irregularity of the latter mode-of proceeding, but the argument in the first branch of the inquiry necessarily includes the latter.</p> <p>1. The older authorities establish the doctrine to the extent embraced in the first point, and require the conviction of all the principals, before the trial of one charged as accessary to all. Morris Gittirís Case, Plozuden’s Com. 98 B. is fully supported by 40th Ass. PI. 25. Bro. ■ 119. Fitzherb. Tit. Corone. 216. In 1 Hale, Pleas of the Crown, 624, it is said, “ that if A., B. &? C., are indicted as principals, and D. as accessary to all, he shall "not be tried till all the principals are convicted or attainted.” In 2 Hale, 200, a similar doctrine is laid down, and Lord Coke in 2 Inst. 183, 184. recognises the same principle. Flawkins, B. 2. Ch. 29. Sec. 45, while he recognises the modern rule to be, to try an accessary to several as accessary to such of his principals as may appear and be convicted, declares that the contrary opinion is supported by great authority, and that he does not find any instance in the books wherein the Court had actually proceeded to the trial of an accessary in such a case, before' all the principals had appeared or been attainted.</p> <p>The reason of the old rule is obvious, and is most in accordance with our civil institutions. The great objection against trying a person as accessary to those who have not appeared, is, that it subjects the person tried to the hardship anc[ hazard of two trials for his liberty or life ; whereas if the trial were deferred until all the principals should be st-tainted or appear, he would be tried but once. For all the books that maintain the modern rule, agree that an acquittal or being accessary to one principal, does not prevent a subsequent trial as accessary to the other principals, when they are attainted. Hawk. B. 2 Ch. -29 sect. 46. The mischief arising from the introduction of this rule in criminal justice, produced in England the Slat. 43 Geo. III. Ch. 113. s. 5. Russell on Crimes, 52, which enacts, that in such case, the accessary shall only be subject to one trial, and that his acquittal when tried as accessary to one of several principals, shall be a bar to future proceeding in relation to the others. By adopting the modern, in preference to the ancient rule, the mischief remains, while the remedy provided by 43 Geo. III. is out of our reach.</p> <p>2. But the modern rule is, that an accessary to several principal felons may be indicted as accessary to such principals as are convicted or attainted, though all are not so convicted or attainted. Foster, Ch. 2. sect. 1, who is the leading authority for this doctrine, goes no further than this, and subsequent elementary writers, who incorporate it, lay it down in the same way. Chit. Crim. L. 343. Russell, 52. Hawk. B. 2. Ch. 29. sect. 45. But this is not the case before the Court. Here the plaintiffs in error were indicted and tried not only as accessaries to four convicted principals, but to three principals who never have been amenable to justice or proceeded against in any way. Testimony under such an indictment could be received as to the defendants guilt with the absent principals and others, and facilitate a conviction in relation to those present, while the finding would be no bar to a future indictment, charging the defendant as accessary to the absent principals in the event of their attainder.</p> <p>It may be argued that it does not appear, but that the proceeding was by consent, or that Stoops, Price, and Cook were outlawed according to the- Act of Assembly. But such consent, waving an important and substantial privilege will not be presumed. Commonwealth v. Andrews, 3 Mass. Rep. 126. If Stoops, Price, and Cook had been outlawed, it should have been set forth in the indictment or at least averred. 1 Chitty 274. (Margin.) Foster C. L. 365. Com. Dig. Tit. Justices T. (3.) Fuss. Cr. 53. 2 East P. C. 782. Hyman’s case 2 Leach, 925. Outlawry isa conviction}-and lik^ any other conviction should be averred in proceedings against an accessary, 1 Dali. 90. In Finer’s Abr. the necessity of such an averment is. expressly declared. 1. Fin. Ab. Tit. Accessary, Letter F, 122. Id. 6?. 119.</p> <p>3. The indictment is defective. It sets forth a larceny and a burglary in one count, alleging, in the first instance* a breach and entry with intent to steal and afterwards an actual larceny in stealing, taking, &c., the money laid, while the .defendants are charged'as accessary to the said felony. Hale considers such an indictment as charging two offences. 1 Hale 559, 560. 3 Chitty, 10. 98. 9. In Catherine Graham’s case, 1 Lawyer’s Magazine, 469, the twelve Judges decided that an indictment setting forth two felonies by the principal, and charging the accessary as being such to, “the felony aforesaid,” could not be'supported, being too uncertain to autho-rise any judgment. The punishment of an accessary to a burglary differs most materially, from that of an accessary to a larceny. The difficulty of pronouncing judgment on such an indictment is obvious.</p> <p>The old common law undoubtedly was, that all the principals must be tried before the accessary could be arraigned. It is equally true that the rule no longer exists. Now, the accessary of several may be arraigned on the conviction of any one. The most approved modern authority establishes this. It is agreed that the proceeding would have been regular, had the Commonwealth proceeded to outlawry against the absent principals, Stoops, &c. Two principles are submitted to the Court in answer to che objection.</p> <p>First, That outlawry is a matter in pais, and that this Court will presume that such outlawry was proved on the trial of these accessaries in the Court below. Second* That process of outlawry does no't lie in Pennsylvania. They may have been convicted in another Court; and nothing appears to the contrary. None ol the precedents sets forth the conviction or outlawry of the principal. It was properly a matter of defence below, and the defendants might have avail-1 ed themselves of it by plea. ...</p> <p>But is it, in Pennsylvania, necessary to proceed to the outlawry of the principal, before you can try the accessary ? The Act regulating outlawry, 3 Smith’s Laws, 37. Act of September, 1,791, was passed when the Supreme Court had a general jurisdiction, and there was no difficulty in the way of the proceedings. Situated as the' Court now is, outlawry in any other county but this, is impossible, and here extremely difficult. By the habeas corpus act, a defendant is entitled to his discharge at the second term if not tried. By the outlawry act, three terms must elapse before the outlawry of the principal can take place. The accessary might then be entitled to his discharge under the habeas corpus act, before the outlawry of the principal could take place. Again, if the principal chose to come in and plead before the outlawry is complete,-in no district but this, could, he be tried; this Court, to which the proceeding previous to outlawry must be removed, having no authority- elsewhere in the Commonwealth to award a venire.</p> <p>There are not two felonies charged in this indictment. .The breaking, entering, stealing, &c., are but the component parts of one burglary. The case cited was of two obviously distinct felonies charged against the principal.</p> <p>The Court never will presume the existence of a state of things, which is clearly negatived by the record before them. Such a presumption would be peculiarly unauthorised in a criminal casé, if it could be authorised in any case. In this indictment, all the principals, and all the accessaries are indicted-together. In one count, the principals, Stoops, Price, and Cook included, are charged with the burglary, and in the second count the plaintiffs in' error are charged as accessa-" ries to them all. Had this been a separate indictment against the plaintiff as accessary, and if, in point of law, in such an indictment, it is unnecessary to set forth or aver the conviction or outlawry of the principals, then the reasoning might be sound.</p> <p>The argument against the convenience of outlawry would, with more propriety, be addressed to the Legislature, than to this Court. An Act of Assembly giving the Supreme Court power to issue a venire in such case, would make the system complete and harmonious. The argument drawn from the habeas corpus Act is equally unfounded. The construction given' to that law ever has been, that if the Commonwealth is prevented from proceeding to trial by the act of the defendant, he cannot claim his discharge. If he should refuse his consent to a trial previous -to the attainder of his principal, which, with his consent, would be legal, he never could obtain a discharge under the provisions of the habeas corpus Act.</p>

In ERROR. ERROR to the Common Pleas of. Bucks county,- and bill Ot exceptions. This was a scire facias on a judgment entered by warrant of attorney on a bond given by John Blaker, the defendant ^elow,t0 J°hn Cooper, the plaintiff below, for the use of Cooper's daughter, Esther Rice, late Esther Blaker, who was formerly the wife of John Blaker.

In Error, ERROR to the Court of Common Pleas of Lehigh county, In the Court below Christian Snyder, the plaintiff below brought this action on the case against Christian Shaffer and Samuel Solliday: who pleaded non assumpsit, and with leave, &c., on which issues were joined. ? ° On the trial it became a material question, whether the partnership of the defendants in a store in Hellerstown, was dissolved or not.

<p>Apromissó. has been altered without the consent of JJ]® ?n<l<#se“nt’ is thereby ren. though in the dorsee.</p> <p>¡„ point ofiaw note, and it is cour/to the leave it to the jury, whether the alteration of the date was material or immaterial.</p> <p>Proof of a note dated the 26th J uly, does not support a declaration stating a note dated on the 25th July.</p>

<p>Point Reserved.</p> <p>THIS cause was tried at Nisi Prim, and a verdict was . _ , , , . , . . r , _ given ior the plaintiffs, subject to the opinion or the Court aP°int reserved.</p> <p>The plaintiffs, Cheever Ss? Fales, were creditors of Joseph Clark, and the defendants were trustees under a deed of as- . , , , . .. .. , signment made by Clark in trust tor his creditors. I his act‘on was brought for the recovery of a dividend claimed by the plaintiffs out ,of the estate of Clark, in the hands of the defendants. There was no dispute about the amount plaintiffs debt, or the amount of the dividend. The only question was, whether the plaintiffs were entitled to any dividend. Clark's assignment bore date the 14th January, The trust was, that the defendants should collect all . „ , . . , , his debts, and convert all his property into money, which was t0 be applied to the payment of his debts in the following orc^er : First, to the payment of certain specified accommo~ dation notes, if there should be sufficient to pay the whole of them, but if net, “ then in just and equal proportions." Second, to the payment “ of all the other just debts of the said Clark, (except notes and indorsements made by him for the accommodation of others,) in full, if the monies be sufficient, if not, then in just and equal proportions ; and after paying said debts of the second class, then, in the third place, Paymen,: °f all notes and indorsements made by the said Clark, for the accommodation of others, in full, if the monies be sufficient, but if not, then in just and equal pro- » an(l if any surplus should remain, then to pay the same to the said Clark, his executors, administrators, or assigns* Provided, that before the payment of any of the said debts in any of the said classes enumerated or contained, the respective creditors do, within sixty days from the date hereof, if they reside in America, and if they reside in Europe or elsewhere, within six months from the date hereof, execute a full and complete release and discharge of their respective debts.” The plaintiffs fell within the second class of creditors. They resided in America, and did not execute a release within sixty days from the date of the assignment, but they executed a release on the 19th June, 18i8, at which time the defendants had made no dividend, nor paid any of the money which they had received under the trust. Some creditors within the second class had released within the sixty days. After having paid the first class of creditors, a surplus would remain in the hands of the assignees, and the question was, whether the plaintiffs were entitled to the dividends of it in proportion to their debt.</p> <p>We contend for no principle that will expose the assignees to any loss or inconvenience. The offer of a release was made by the plaintiffs in time to put them on their guard, and they will sustain no mischief by the payment, as they have funds reserved. Nor will creditors suffer a loss. If the dividend had been made when we executed the release, the payment of it could not be disturbed. But that was not the case. Under the circumstances, we contend, that our claim is well founded. The ruling intention of the assignor is to provide for all his creditors, and such is the equity. This construction of the assignment not only favours a pro rata payment of the creditors, but is for the benefit of the debtor. A precise term is limited by him as a threat to hasten them to come in, but the paramount object is to bring them all in. If the plaintiffs come in they take nothing from the other creditors : if they are excluded, the dividend of the other creditors is not increased. For, by, the assignment, each creditor is to receive only the proportion which his debt bore to the whole amount of debts in his, class, whether all the creditors in that class executed a release or not. Then the other creditors are not injured, and the debtor is benefited by being released from a debt that would otherwise be outstanding against him : and the only objection is, that the release was not executed within the time limited by the assignment, an objection merely formal. We are entitled to tjje benefit of all equitable principles, and it is well settled in equity, that a condition imposed merely in terrorem, sucb as a condition that if A. marry without the consent oí B., then a legacy bequeathed shall be void, is invalid, if not bequeathed over. The condition here is of the same kind : introduced merely to accelerate the releases. As to the time limited, time is not material where, as here, things stand in all respects the same after as before the day. Relief is often given in equity where the objections are founded on time only. Time is not the essence of a contract in equity ; but if no damage be sustained, a contract may be enforced after the time stipulated. Equity will not suffer advantage to be taken of a penalty or forfeiture where compensation can be made. Gibson v. Paterson, 1 Atk. 12. Sugden, 244. Nezviand on Cont. 230, 231. 232. 4 Bro. C. Rep. 330. Seton v. Shard, 7 Fez. 265. 1 Fonbl. 391. 395. Hayward v. Angelí, 1 Fern. 222. Grimston v. Bruce, 1 Salk. 156. Cage V. Russell, 2 Fent. 352. Franbis’’s Max. Eq. 45. 48. Wallis v. Grimes, 1 Ch. Cas. 89. Bland v. Middleton, 2 Ch. Cas. >1. Longdale v. Longdale, 1 Fern. 456. In the case of Dunch v. Kent, 1 Fern. 260, there was a deed of trust for payment of such creditors as should come in within a year, and it was held, that a creditor would not be excluded though he did not come in till after the year.</p> <p>The debtor had a right to prefer what creditors he pleased, and on what terms he pleased. It is clear the plaintiffs are not within the letter of the assignment, and if that be departed from, it is impossible to foresee the consequences that may ensue. It will not always operate in favour of the debtor, and will exceedingly embarrass the settlement of the estate. It is a sufficient ^answer to the equity set up by the plaintiff, that there were, at the expiration of the time limited, rights vested in the other creditors, and equity will never relieve from non-performance of a condition to the injury of vested rights. The case of Dunch v. Kent, the only one that at all bears on this case, is unlike, in several particulars. Lindsey, the trustee in that case, converted the funds to the use of his own creditors, and it is certain they had no right to the fund. As to the argument that the other creditors will not be injured', because their proportion remains the same whether the plaintiffs are included or not, this construction cannot be given to, the assignment. The proviso contemplates a payment of the whole debts to such as release, if the fund be sufficient: those who do not release, are not to be considered as creditors, and are to have no part in the trust. The assignor is not to have any part till after all the debts are paid ; then what is to become of it, if the creditors who release are not entitled to it ?</p>

<p>Amend-posed by a| are^'ot'to be considered as corporation Muse'theyarc offered under seal™heCourt ™£at a«horF ty it is affixed,</p> <p>^onsStofthree clerical and timbers, if °.ne,oi tl,e,eIe~ rical members be excluded from the board by a resolution of the lay members, authotionsfor°aiteof^mentafarti «les of the absenceof1*56 such member., are unlawful,</p> <p>.Iri corporations where there are dit[^majority8’ of each class must consent, before the ¿íter^ iftherS be no provision respecting atterauons.</p>