Volume 7 — Watts's Pennsylvania Reports

<p>An equitable vendee of a lot of ground, who has not paid the purchase monejl, by building a house upon it, subjects it to the lien of mechanics and material-men ; and if sold upon such lien, the sheriff’s deed vests in the purchaser a good title, against which the vendor cannot recover in ejectment upon his legal title.</p>

<p>ERROR to the common pleas of Juniata county.</p> <p>This was a scire facias by Mayberry, Gillen & Watldns, against Charles Moser, garnishee in a foreign attachment against Nathan Moser. The sheriff returned that he had attached a debt due by Charles Moser to Nathan Moser of 6300 dollars. One-third thereof in October 1837; one-third in October 1839, and the balance in October 1841. It appeared that Nathan Moser had put goods and lands into the possession of Charles Moser to the amount of the bonds attached, with the purpose, as was alleged, of defrauding his creditors; after which, several of his creditors issued foreign attachments, and attached the goods and lands in the hands of Charles Moser, obtained judgments, and issued scire facias against the present defendant, and recovered their money, as appears, upon the ground that the sale by Nathan to Charles Moser was fraudulent; and that the goods and lands were subject to attachment for Nathan’s debts. In this case the defendant gave those recoveries against him in evidence.</p> <p>The court below (Reed, President) instructed the jury, in substance, that if the former recoveries against the defendant were in amount equal to the property of the defendant in the attachment which came to his hands, the plaintiff could not recover in this suit. But if he still had property in his hands, which had not been taken from him by due course of law, and which formed a part of the consideration of the notes attached in this case, the plaintiff was entitled to recover, although the notes in the former recoveries had in effect been treated as a nullity.</p> <p>The jury found a verdict for the plaintiff for 478 dollars 51 cents, but before the finding was recorded, the defendant requested the court to instruct the jury to say upon which of the notes attached they find the sum to be due; which the court refused to do, and sealed a bill of exceptions.</p> <p>After the verdict was recorded, the defendant requested the court to enter a judgment upon it, with stay of execution, until the last note attached should become due. This the court also refused, and entered judgment generally on the verdict.</p> <p>Errors assigned.</p> <p>1. The court erred in their charge to the jury, when they leave, it to the jury as the only fact for inquiry'whether all the property for which the notes were given was not attached and taken from the defendant by due course of law; and if it was not that the plaintiff could recover in this suit.</p> <p>2. The court erred in directing the jury that if all the property sold by Nathan Moser to Charles Moser had not been recovered on the attachments previously issued by the creditors of Nathan Moser, by due course of law, but only a part, then the plaintiff was entitled to recover.</p> <p>3. The court erred in their charge to the jury, that “if the defendant obtained enough of property, or more, under his purchase, and for which the notes attached were given, which he still holds and enjoys, more than enough to pay the plaintiff’s claim, then the plaintiff is entitled to recover.”</p> <p>4. The court erred in refusing to request the jury to say upon which of the notes attached they found the sum returned by their verdict to be due, as requested by defendant’s counsel.</p> <p>5. The court erred in not entering the judgment, with stay of execution, as requested by defendant’s counsel.</p>

<p>A testator having bequeathed to his wife “all the furniture and other articles which she brought with her that are now in my possession, together with her interest out of my estate, so long as she remains my widow,” it was held that she was entitled to the specific articles bequeathed, and also to the interest, during- her life, or widowhood, upon the net proceeds of the personal estate, after the payment of debts and specific legacies: and that, upon giving security to the executor to return it, she would be entitled to have the principal upon the same limitation.</p>

<p>If the plaintiff in a judgment become the owner of the land upon which that judgment is a lien, the lien thereby becomes extinct by operation of law; and no subsequent sale of the land by the sheriff, upon that judgment, will, vest a title in th'e purchaser.</p> <p>If a fieri facias be issued upon such a judgment, it is not incumbent on the terre-tenant to come into court to have the process set aside. After a sale of the land under it, he may defend himself in ejectment against the purchaser, On the ground that the lien was extinct.</p> <p>In ejectment, a verdict and judgment in a former trial between the same parties, for the same land, may be given in evidence. So also of a non-suit.</p>

<p>ERROR to the district court of Lancaster county.</p> <p>John Stubbs and Daniel Stubbs, administrators of Vincent Stubbs deceased, against Nicholas Boyd, surviving partner of Stephen and Nicholas Boyd. Amicable action to November term 1823. On the 15th September 1823, the parties entered into and filed this agreement :</p> <p>“We mutually agree that all matters in variance between the parties be referred, by rule of court, to Jeremiah Brown, John Kirk, and Joshua Webster, or any two of them, who are to meet on the 26th instant, at the house of John Ballance, innkeeper, and make report of their proceedings into the prothonotary’s office.”</p> <p>On the 2d October 1823, the referees made the following award :</p> <p>“In pursuance of the annexed order, we, the arbitrators therein named, all met several times, and being qualified according to law, we proceeded to examine the accounts of John Stubbs, one of the administrators of Vincent Stubbs deceased, and Nicholas Boyd, surviving partner of Stephen Boyd and Nicholas Boyd, and after adjusting the books and accounts produced to us,</p> <p>“The whole amount of the plaintiff’s charge is ¿£423 5 7i</p> <p>“And the defendant’s credit is....... 306 2 lié</p> <p>“Due from the firm to the plaintiff . .</p> <p>“We also find in the same books, that Stephen Boyd, one of the above firm, has received of</p> <p>Vincent Stubbs’s estate........</p> <p>“And Nicholas Boyd only........</p> <p>“And that they both stand charged with . ...</p> <p>“We therefore find for the plaintiff.....</p> <p>“With 18 years interest, up to this date, is . . .</p> <p>117 2 8</p> <p>240 19 9 22 O 1 160 5 9</p> <p>117 2 8 128 5 0</p> <p>¿£245 7 8</p> <p>“And further, we have been informed that Samuel Boyd, one of the administrators of Stephen Boyd deceased, has an account of Stephen’s that we expect would have shown some light on the business; but it was not produced, nor would he appear before us, although he was summoned.</p> <p>“Witness our hands, this 2d of the 10th month 1823.</p> <p>“Jeremiah Brown, “John Kirk,</p> <p>“Joshua Webster.</p> <p>“P. S. We agree that either party may appeal if they think proper.”</p> <p>The defendant paid the costs and did appeal; and the plaintiff’s attorney received his costs from the prothonotary.</p> <p>On the 14th June 1833, the plaintiff’s attorney obtained a rule to show cause why the appeal should not be set aside, and why judgment should not be rendered on the award.</p> <p>Upon argument, the court below (Hays, President) set aside the appeal, and permitted exceptions to be filed to the award, nunc pro tunc. When the following exceptions were filed:</p> <p>1. The court having decided that the agreement in the above case was under the act of 21st March 1806; the same ought to have been attested and proved, as required by the provisions of that act, before it was filed.</p> <p>2. The referees were to meet by the agreement on the 26th September, A. D. 1823, and it does not appear from the report that they met on that day, or on any other day than the 2d of the 10th month. 1823; nor had they power to adjourn from day to day.</p> <p>3. It does not appear that the referees were sworn or affirmed according to law.</p> <p>4. All the claims of plaintiffs were, of eighteen years’standing, unfounded in justice, and barred by the statute of limitations.</p> <p>5. The referees certify that they examined the accounts of John Stubbs, one of the administrators of Vincent Stubbs, deceased, but do not state the amount of the accounts of the deceased, nor that the same were produced. They therefore decided upon matters not submitted, and without the requisite proof.</p> <p>6. They state that they find in the same book (that is, John Stubbs, as before mentioned), that Stephen Boyd received of Vincent. Stubbs’s estate, 240 pounds 19 shillings and 9 pence; and Nicholas Boyd only 22 pounds 1 penny; and that both stand charged with 160 pounds 5 shillings and 9 pence. They then charge defendant with the whole amount of these items; although it does not appear at what time the said sums were received, nor that they were received by the firm; but it appears that two of the items were received by the said Stephen and Nicholas individually, and not as partners; nor is it alleged that the books or accounts were proved at the time of their production.</p> <p>7. The arbitrators admit that they wanted light, and that there was evidence withheld which ought to have been produced.</p> <p>8 The award is uncertain and illegal; is not mutual, and is subversive of the rights of defendant; a large balance being due to him from the plaintiffs.</p> <p>9. The partnership between Nicholas and Stephen Boyd existed for the special purpose of raising and selling wheat, and was dissolved in 1802; and at the time of dissolution defendant believed there was a large balance in his favour.</p> <p>These exceptions were also overruled by the court, and judgment rendered upon the award.</p> <p>Errors assigned.</p> <p>1. The court erred in the opinion delivered, setting aside the appeal made by defendants, and acquiesced in by plaintiffs; and in the reasons for such opinion, and in -the determination that the agreement and proceedings were under the act of 21st March 1806.</p> <p>2. The counsel for the defendant below having protested (after the decision of the court, which is made the subject of the first error assigned), that they believed the appeal in the cause to be a valid and subsisting appeal; and reserving their right to a writ of error to the opinion and judgment of the court, setting aside said appeal; filed the exceptions to the award, which are upon the record. The court erred in dismissing the exceptions and rendering judgment upon the award: the several exceptions there taken being reassigned and incorporated in this, the second error assigned, in the same manner as if particularly set forth.</p>

<p>An authority by one to another tenant in common to proceed to an assessment ■of the damages which had been suffered by the location and construction of a railroad through their farm, will not authorise the latter to proceed in his own ■name, treating the farm as his own. The title of the petitioners ought to be Tightly set forth in the petition. Nor will such irregularity be cured by the subsequent formal release of the tenant in common not joined in the proceeding.</p>

<p>WRIT OF ERROR to the common pleas of Schuylkill county.</p> <p>William Riehle and Susanna Reed against Daniel Heiser, Philip Hoy, Henry Koch, and Jacob Huntzinger. . Ejectment for eight hundred acres of land.</p> <p>Plaintiffs claimed the land in question by virtue of two patents to John Sigmond Riehly, dated the 7th and 16t,h of Aug. 1786, and showed a regular chain of title from said Riehly.</p> <p>defendants relied upon the statute of limitations; and the question for the decision of the court and jury was, bow far and to what quantity of land were they protected in by their possession, under the following facts given in evidence, to wit:</p> <p>20th day of April 1803, John Moyer procured Jesse Evans to make a survey of nine hundred and thirty-four acres a-nd eighteen perches of land, including parts of the two patents to John Sigmond Riehly.</p> <p>23d April 1803, John Moyer executed a deed for the said nine hundred and thirty-four acres eighteen perches of land, to Philip Hoy, George Orwig and Nicholas Rodebach, for the consideration of 45 pounds, containing the following recital: It being part of a larger tract of nine thousand two hundred and ten acres, of which John Christ, Esq., then high sheriff of the county of Berks, by virtue of a writ oÍ fieri facias issuing out of the supreme court of Pennsylvania, and to him directed, did seize and take in execution, as the property late of Judge James Wilson, Esq. deceased, and by' virtue of a certain other writ, of venditioni exponas issuing out, of the-same court, and also to him directed, did by public auction or vendue expose the same to sale, and sold the same to him the said John Moyer, and by his deed dated the 10th day of August., in the year of our Lord 1799, did further grant and convey the same unto him the said John Moyer, his heirs and assigns, party to these presents.</p> <p>A regular chain of title was then shown from George Orwig and Nicholas Rodebach, to the other defendants, Henry Koch and Jacob Huntzinger.</p> <p>The said survey and title papers were given in evidence to show the extent and nature of their possession, and that they entered under colour of title, and under the supposition that they had title to the nine hundred and thirty-four acres.</p> <p>Defendants then proved that they entered into the possession of the land in question under the deed of John Moyer. In 1803 built a house and saw mill, and cleared a few acres of ground, and continued to hold the actual possession thereof by their tenants up to the institution of the present suit; and the land claimed by defendants was assessed for taxes in their names, and in the names of those under whom they claim from the year 1805 to the institution of the present suit: and they continued to exercise acts of ownership thereon, by cutting timber for their saw mill from the date of their purchase to the institution of the suit.</p> <p>‘ The improvements are admitted to be within the lines of one of the patents to John Sigmond Riehly.</p> <p>And the survey of Jesse Evans for John Moyer, in 1803, was shown to be well marked on the ground.</p> <p>There were no improvements ever made on the Riehly surveys, except those made by defendants.</p> <p>Plaintiffs gave no evidence of the payment of taxes. Verdict for the plaintiffs, except for the land actually occupied by the defendants.</p> <p>Error assigned.</p> <p>1. The court erred in charging the jury that there was no ground to presume an ouster of the plaintiffs from the possession of the nine hundred and thirty-four acres tract claimed by defendants; and that there was no pretence of claim by the defendants under the statute of limitations beyond the ground actually occupied by them.</p>

Eyster against Wolfran. Action of debt. In this case the jury having been charged by the court, retired to their room at half past twelve o’clock, P. M., with directions to seal their verdict in case they should agree during the intermission of the court.

<p>ERROR to the common pleas of York county.</p> <p>This was an action on the case by John Demuth, Jun., against Jtichard C. Stockton and William B. Stokes, proprietors of a line of stages, to recover the value of a package of goods delivered to their agent at York, to be carried to Baltimore, and which was lost. The plaintiff' called Emanuel Erb, the defendant’s agent, as a witness, who testified as follows:</p> <p>“I was the agent of Stockton & Stokes on the 29th July 1834, and continued to be until June 1836. This is the stage-book kept at the office at that time; I made this entry under date s July 29, 1834. Parcel for Todd; paid to B.’ This is the waybill of the same day. The freight was paid by Mr Demuth himself (25 cents). At the time these entries were made no package teas brought. Mr Demuth called the day before and paid, and said he would send a package for the morning stage; but I have no recollection of his bringing or sending it.</p> <p>“I don’t recollect seeing the package; the entry in the book Í made the day before. I made out the waybill the next morning, after the arrival of the Harrisburg stage. We generally write on the bill what we have entered on the books. Sometimes we write £not gone,’ when it is not sent. Mr Demuth was not very regular about sending.</p> <p>“I sometimes noted on the waybills that articles had not gone. Sometimes Mr Demuth put in bundles on the way, after the stage had started, and I did not know but this might be so. We frequently send bundles in the stage. This 25 cents was only to send the-bundle to Baltimore. I think I had told Mr Demuth he had better pay on his packages as far as Baltimore.”</p> <p>The plaintiff subsequently offered in evidence the deposition of John Walls: which was objected to: 1st. Because it tended to contradict the testimony of Emanuel Erb, the plaintiff’s own witness. 2d. Because the declarations of the agent, made- after sending the parcel, are not evidence.</p> <p>The court overruled the objections, and sealed a bill of exceptions. The deposition was read, as follows:</p> <p>“The first that I know about it is, that Mr Erb told me that he had sent a bundle for Mr Demuth, with George Slate, to Baltimore, and he wanted me to look for it, for he expected Slate had lost it; he told me to ask in the stage office at Baltimore, and at Beltzhoover’s. I asked Mr Scott, at the office, if such a bundle had come to hand, and he said he had seen nothing of it. Mr Scott is the clerk in the stage office atBaltimore.” Question; Tell me when it was? “ Two years ago, this summer, as near as I can tell. I met Slate on his way to Baltimore on the day that Mr Erb said the bundle was sent. Mr Erb said the bundle contained hats.”</p> <p>The defendants then called Emanuel Erb, the same witness who had been previously called and examined by the plaintiff. The plaintiff objected to his giving evidence for the defendants, on the ground that he was their special bail in the action. The defendant’s counsel admitted the force of the objection, as a general principle, yet insisted that the plaintiff, having called the witness, was thereby estopped from objecting to his competency. But the court rejected the testimony offered, and the defendant excepted.</p> <p>The several bills of exception were assigned for error, and argued by</p>

Adam Leis against John Stub and William Stub, with notice to all the other devisees of Adam Stub deceased. Adam Stub, the father of the defendant, was in his lifetime the owner of the land in dispute.

Anna Maria Fishel against Henry King and Michael Fishel, executors of Henry Fishel deceased.

This suit originated before a justice of the peace, in the name of Jacob Fessler against John Johnston & Co., and the defendants appealed from the decision of the justice.

Ejectment by James Cameron and Rebecca his wife, against Dr Abraham Carpenter, to recover the moiely of a tract of land containing two hundred acres. The facts of the case and the point which arose are minutely detailed in the opinion of the court. Charge of the court to the jury. Hays, President.—Both parties derive their titles from Dr Bar-tram Galbraith, who died in November 1826..

common pleas of York county. Joseph Heim against John Hoover. This was an action of trespass for an injury done to the person of the plaintiff’s minor daughter, by beating her. The plaintiff, after giving evidence that the consequence of the injury was, that his daughter had ever since been subject to fits, offered to prove that that consequence still continued up to the time of the triai. The defendant objected to the proof of consequences since suit brought.

David Miller against Isaac Chambers. Scire facias post annum et diem to revive a judgment. The defendant gave in evidence on the trial, the receipt of D. G. Fenton, attorney for plaintiff, written upon the fieri facias which had issued upon the judgment for the amount of the debt, interest and costs.

The facts of the case, necessary to an understanding of the questions settled, are sufficiently stated in the opinion of the- court.

<p>After an estate has been settled, and releases executed, followed by an ac.; quiescence for a number of years, the accounts will not be opened : such settlements apd releases are favoured by the courts, because they tend to repose and quiet.</p>

<p>An execution levied upon personal property and stayed indefinitely by the plaintiff, and suffered thus to remain for about a year and eight months, loses its lien upon the property levied, as to subsequent executions.</p>

<p>ERROR to the common pleas of Berks county.</p> <p>Henry A. Muhlenberg, assignee of Daniel Fiehthorn, who was the assignee of Daniel and John Fiehthorn, against Benneville Keim, executor of Andrew Fiehthorn deceased, and the heirs and representatives of said deceased. Case and special verdict.</p> <p>On the 20th day of October, A. D. 1822, Andrew Fiehthorn died, having first made his last will and testament, which was duly proved on the 23d day of October, A. D. 1822, whereby he devised and bequeathed all his property to his children, in equal'shares, to wit, John, Daniel, Charles, William, Lewis, Andrew, George, Catharine intermarried with Adam Foesig, Susan, and appointed Benneville Keim the executor in his said will.</p> <p>On the 27th of September 1830, Daniel Fiehthorn, son of Andrew Fiehthorn, the above stated testator, assigned and transferred, for a valuable consideration, unto Daniel Fiehthorn, all such sums of money, legacies, &c., which he was entitled to receive of and from Benneville Keim, the executor in his father’s will, and also constituted him, the said Daniel, his true and lawful attorney, to sue for and recover the said money and legacies, and to have and receive, for the consideration therein mentioned, fot himself, his heirs, executors, administrators and assigns, all such sums of money as the said Daniel Fiehthorn should be entitled to, under the said last will and testament-; which assignment and power of attorney were duly executed and acknowledged according to law.</p> <p>On the 28th of August 1837, Daniel Fiehthorn, the assignee and attorney of the said legatee, for the consideration therein mentioned, assigned and transferred his right to receive all such sum or sums of money, as his said principal would be entitled to receive of and from Benneville Keim, the executor as aforesaid, unto Henry A. Muhlenberg, his heirs and assigns, with power to receive and- receipt for the same in the usual form.</p> <p>On the 22d of February 1831, John Fiehthorn, another of the sons of the said Andrew Fiehthorn deceased, in and for the consideration; therein mentioned, made in the same manner and for the same purposes and effect, a similar assignment and transfer of his interest in the said estate, to the same Daniel Fichthorn, who, on the' aforesaid 28th of August 1837, also assigned John’s share, part interest in the estate of Andrew Fichthorn deceased, to Henry A. Muhlenberg.</p> <p>To January term 1834, No. 18, an action of covenant was instituted in the court of common pleas of Berks county, by the said Benneville Keim, executor of the said Andrew Fichthorn deceased, against Daniel Fichthorn (to whom and by whom the above stated assignments and transfers were made) and George Boyer, to recover the amount of nine several bonds, executed by George Kershner to George Shertle, assigned by Shertle to Fichthorn and Boyer, the parties in the suit, and assigned by them, with their guarantee, to the said Andrew Fichthorn, Jun.</p> <p>This suit was arbitrated, and a report found in favour of the plaintiff, September 24, 1834, for 2556 dollars 21 cents.</p> <p>From this award George Boyer appealed. Daniel Fichthorn abided by the finding.</p> <p>At August term 1837, the 14th of August, the cause was tried in the court of common pleas, and a verdict rendered against George Boyer, and in favour of the plaintiff, for 3425 dollars 36 cents.</p> <p>George Boyer’s property having been sold by the sheriff, the amount of the above stated award, with interest, was adjudged by the court to Benneville Keim, the plaintiff in the said suit, amounting to 2997 dollars 12 cents, being the balance of the saicfptoceeds which remained after payment of prior liens.</p> <p>The question on this statement of facts for the decision of the court is, whether the assignee of the shares of Daniel and John Fichthorn is entitled to a pro rata distribution of the sum of 2997 dollars 12 cents, with the other legatees of the said Andrew Fichthorn deceased, or whether the assignee of the shares of the said Daniel and John is to be postponed until the other seven legatees shall have first received their respective and full portions of the amount of the verdict, to wit, 3426 dollars 36 cents.</p> <p>If the opinion of the court should be in favour of the former, judgment to be entered for the plaintiff. If their opinion be in favour of the latter, then judgment to be entered for the defendants. Either party may sue out a writ of error.</p> <p>April 1838, the court gave judgment in favour of the plaintiff</p> <p>Assignment of errors.</p> <p>The court erred in rendering judgment for the plaintiff: they should have given judgment for the defendant.</p>

<p>ERROR to the common pleas of Lancaster county.</p> <p>William Child, against Charles Shaeffer and Nathan C. Schofield, Field & Forbes, and Philip Snyder. Issue directed by the court to try the right to the proceeds of a sheriff’s sale of the property of Matthias Rauch. The following facts appeared, upon which each of the parties, plaintiff and defendants, claimed the money.</p> <p>The first judgment on record was that of David Muma, which was entered the 7th of July 1815, and revived by scire facias on the 29th Nov. 1827. David Muma was discharged as an insolvent debtor the 5th of Feb. 1816, and his assignee assigned the judgment to Shaeffer & Schofield the 22d of Aug. 1831.</p> <p>Field & Forbes’s judgment was entered 28th of August 1815; Philip Snyder’s judgment was entered 22d of Sept. 1815 ; William Childs’s judgment was entered the 2d of Oct. 1815, and revived by scire facias the 27th of Aug. 1827. Upon this judgment a fieri facias was issued, which was levied upon the real estate of Matthias Rauch, and which, upon a venditioni exponas, was sold in January 1828, for 335 dollars. This was the money in court for appropriation.</p> <p>Matthias Rauch was discharged as an insolvent debtor on the 17th of February 1817, and made the usual assignment of all his estate for the benefit of his creditors, of which the real estate, sold as above stated, was a part.</p> <p>The court below (Franklin, then President) was of opinion that none of the claimants was entitled to the money : that Shaeffer & Schofield were not entitled to it, because the assignee of David Muma had no power to transfer the judgment to them, and because the judgment had lost its lien : Field & Forbes were not entitled to it, because their judgment had lost its lien, and William Child was not entitled to it because his judgment had lost its lien ; and when the same was revived in 1827, the defendant, Matthias Rauch, had no estate upon which it could attach, he having previously assigned it for the benefit of his creditors generally : but they were of opinion, and so instructed thejury, thatthe assignee of Matthias Rauch, when one should be appointed, would be entitled to have the money from the sheriff. But the jury found a verdict for the plaintiff, William Child. A motion was made by the other claimants for a new trial, pending which, president Franklin died. The motion came on for argument before Collins, President, who being of opinion that the verdict of the jury was in accordance with the rules of law, refused to set aside the verdict. This writ of error was then sued out.</p>

<p>No title passes to a vendee who is guilty of actual fraud in procuring it, whether the sale be private or judicial. He who purchases at sheriff’s sale, knowing at the time that the judgment on which the sale is made was satisfied, acquires no title ; and a purchaser from him stands in no better situation, unless he be a purchaser for a valuable consideration, without notice of the fraud.</p> <p>Courts are anxious to protect titles which depend upon the record ; it is the muniment of title on which purchasers depend, and they are not bound to look beyond it to discover latent frauds of which they have no notice, and to which there is nothing to direct their attention.</p>

<p>ERROR to the common pleas of Clearfield county.</p> <p>This was an action of ejectment by Elizabeth Hamilton against Moses Norris, for a tract of land in Clearfield county.</p> <p>The plaintiff claims under a warrant in the name of Alexander Reed, which is one of twenty-one descriptive warrants, bearing date the 8th of July 1784, on which surveys were nlade in the months of June and July 1785. They were all returned and accepted on the 1st of October 1785. All the land around them was vacant. It is said they belonged to John Nicholson. He sold them on the 10th of Mar.ch 1795, to John Ashly, who obtained a patent in 1800. In 1831, Ashly sold to James Hamilton, the husband of the plaintiff, who devised them to her.</p> <p>These surveys were not fully marked on the ground, but enough appeared to show that surveys were made; that the lines of the leading warrants were run, and that there was a traverse of the creek. Of this body of surveys, the south west line is the one on which the dispute arises. That line runs from the bank of the Clearfield creek. The line is common to twelve surveys. An ash was marked, as a corner, in 1785. All the return diafts call for a line running from the ash south, sixty degrees west. That line was run in 1792, on the ground, and marked the course the return drafts called for from the ash. At that time all the land on the right of that line was vacant. The line on the ground is according to the return drafts in the land office. All the corners on the ground are preserved by that line, and the shape and form of the original surveys, as returned, are preserved.</p> <p>The defendant’s right is of a later date. The Messrs Martins, on the 4th of February 1793, took out several descriptive warrants. The leading warrant calls for Thomas Jordan and Ann Jordan, two of the tracts under which the plaintiff claims. They purport to be surveyed on the 20th of October 1794. They were returned on the 29th of April 1795. This body of surveys was also badly executed on the ground, and they were laid so as to interfere with the older rights. John Nicholson also became the owner of this body of surveys ; his right was sold by the commonwealth in 1808, to John Norris, the father of the defendant, for the consideration of 26 doliai's and 70 cents. The defendant took possession in 1811, in the latter end of April or beginning of May. Hamilton, the plaintiff, bought the surveyin the name of Alexander Reed, and the defendant bought the survey in the name of Richard Martin; and the question is one of boundary between the parties.</p> <p>The plaintiff’s statement set out her claim to be fifty acres of land, be the same more or less, in Lawrence township, Clearfield county, being part of a larger tract of land containing twohundred and eighty-five acres, and one hundred and twelve perches, surveyed to Alexander Reed, in pursuance of a warrant dated the 8th of July 1784, bounded by the lands of J. Thompson and others. The defendant pleaded not guilty. Issue.</p> <p>Exception was taken to the following directions given to the jury, by the court below.</p> <p>Burnside, president.—“The law is, and it will perhaps govern this case, that where lines and corners are to be found on the ground, they cannot be departed from, though there may be some variance in the courses; and if the waters are found to agree with the lines and courses returned, this is strong evidence of a survey actually made. The line of 1792 was run and marked on the ground in 1792, before the defendant’s title was thought of, when all on the right of that line was vacant. It was run according to the returns in the office. It was made. It was run forty-four years ago. It is a line of twelve surveys, according to their returns in the land office. Why then should it be changed ? Why should these twelve surveys be thrown out of shape, and why should later warrants and surveys alter and change that line 1 That line is an ancient boundary. It was the first boundary made on that ground ; and in the judgment of the court, it is entitled to great consideration and regard.</p> <p>“The argumentof the defendant is that the plaintiff has too much land, and that some of the interior lines of ’the plaintiff’s tracts are too long. There is but little in this. The lines on the .ground are the true survey. The courses and distances are only evidence of the survey. If the lines had been too short, the plaintiff' could not have made them longer. If they are longer than they should be, where the courses and distances are preserved, they are entitled to hold the surplus.”</p> <p>The jury rendered a verdict for the plaintiff. The defendant’s counsel moved in arrest of judgment, on the ground of the uncertain description contained in the plaintiff’s statement. But the court overruled the motion, and entered judgment on the verdict.</p>

<p>ERROR to the common pleas of Berks county.</p> <p>John L. Stewart and James Wherry, against, Riah Gilson and Christopher Medlar, trading in the name of Gilson & Co. This was an action of assumpsit for work and labour.</p> <p>The plaintiff, to maintain the issue on his part, gave the following evidence:</p> <p>Jacob Miller sworn. Riah Gilson and Christopher Medlar composed the firm of Gilson & Co. They were contractors on the Chesapeake and Ohio canal. Heard Gilson say that the plaintiffs had finished the coping of an aqueduct for them. Both Gilson and Medlar told me they were partners. Medlar was in partnership in another job.</p> <p>Michael M’Dermott sworn. I went with Stewart and Gilson a few days-.before the day on which they came to a settlement. Stewart asked Gilson if he meant to pay them; Gilson said they owed him the money, and that he would pay it as soon as the company would settle with him. I was in and out at the time they did settle. Gilson said it was about 1800 dollars, according to the best of my knowledge. The debt, was for work done on the Chesapeake and Ohio canal, as both Stewart and Gilsou said. The plaintiffs are stone cutters. I heard Stewart say he had written to get an approval of their work.</p> <p>Mr Rhoads sworn. In July 1836,* I called with plaintiffs at Gilson’s office. I showed him this account; Gilson got out his papers, and looked over them and the account. He said the account was correct and that this was the balance which was due the plaintiffs, and ought to have been paid them long ago. He said this was the account stated between them, as made when they settled on the 28lh or 31st of the month ; and I cannot say which of the two days. That it was right, and should have been paid long ago, and that he would pay it. There was no arrangement made of any kind, at that time, in my presence. I said he must give a negotiable note for the money. He said he would pay it, and give a note, but not negotiable ; that there was too much of his paper already in maifcet, or something to that effect. Mr Wells was there. The account was in Mr Wells’s handwriting. Wells was his clerk.</p> <p>The account was then given in evidence.</p> <p> DR. </p> <p>Messrs Stewart & Wherry,</p> <p>To Gilson & Co.</p> <p>1834, April 18, To cash, . . .... 10 00</p> <p>Do. of John Gilson,. . 100 00</p> <p>December 8, Do. ...... 20 00</p> <p>--$130 00</p> <p>1835, May 28—31. Balance,......... 1806 70</p> <p>$1936 70</p> <p>CR. --—</p> <p>1835, April 28. By coping,........$1850 00</p> <p>Trimming walls,....... 25 00</p> <p>Boating 245 bushels cement, ... 14 70</p> <p>do. 300 do. sand, .... 15 00</p> <p>Taking up three stones and replacing, 12 00</p> <p>Pointing trunk,........15 00</p> <p>Expenses,.......... 4 50</p> <p>Lawyer’s fees,</p> <p>$1936 70</p> <p>The defendant’s counsel offered in evidence an article of agreement dated the 30th of October 1833, between Stewart and Wherry of the one part, and Gilson & Co. of the other part (prout agreement). Its execution was admitted. This testimony was offered, to show that there was a written contract, under seal, between the parties, for doing the work for which this debt was claimed, and that the plaintiff’s remedy was on this contract;' and also to show by it that the plaintiffs were to procure a certificate that their work was finished, before the defendants were bound to pay.</p> <p>The court rejected the evidence, because this action is brought to recover' the balance of a large claim, which had been reduced by a number of payments; which claim the parties have settled, and stated an account between them, showing the balance that was due ; and because it is proved by the clearest evidence, that Gilson, one of the defendants, had said that this sum was due, ought to have been paid long ago, and that he would pay it. To which decision of the court the defendant’s counsel excepted.</p> <p>Agreement above referred to in the bill of exceptions :</p> <p>“Agreement made and concluded upon this 13th day of October, A. D. 1833, by and between John L. Stewart and James Wherry of the one part, and Gilson & Co. of the other part, all of Washington county, state of Maryland : witnessed), that the party of the first part, for and in consideration hereinafter mentioned, covenant and agree to and with the party of the second part, to commence when required, and to quarry, dress, haul, set and to complete the coping required on aqueduct No. 4, on the Chesapeake and Ohio canal, in a workmanlike manner, and in accordance with the directions of the engineers, progressing, grouting and fastening the same, so as to meet with their approval of the work. They agree further, to be at every necessary expense, in completing the coping of said construction, finding of the materials, &c., with the exception only of the hereinafter named agreement. They also agree to give bills of sale on the work, when payments are made monthly or otherwise, and empower and authorise Riah Gilson, superintendent for Gilson & Co., in the event of a non compliance of this condition on the first party’s part, to assume the entire direction of the work, and to complete it at the said first party’s expense. In consideration of which agreement, truly and faithfully performed, Gilson & Co. covenant and agree to pay, or cause to be paid, unto the party of the first, part, the full and just amount of I860 dollars, on receiving certificate of approval of completion of coping, of canal company, and will pay on work dressed and estimated on, 40 cents per foot superfice, or more, if estimated higher by engineers; said payments to be deducted from the amount to be paid for completing the whole coping. It is agreed that Gilson & Co. are to furnish shop, and the tools that will be requisite for conducting the work, if they can conveniently spare them, which are to foe charged to the first party at a fair and moderate valuation, and at the completion of the job, to be disposed of as the mutual agreement of both parties may direct. Gilson & Co. agree to furnish all the cement and sand required, as convenient to the work as possible, and also the iron that may be required for clamping the coping. To prevent any misunderstanding, it is agreed by both parties that no transference of this contract shall be made by either party, without the sanction and approbation of the other. In witness whereof each party bind themselves one unto the other, firmly by these presents, in the penal sum of 300 dollars.</p> <p>“ Signed at Blackford Ferry House, on the day and year as herein written.</p> <p>“John L. Stewart, [l. s.]</p> <p>“James Wherry, [l. s.]</p> <p>“Gilson & Co., [l. s.].”</p> <p>Error assigned. The rejection of the evidence offered in the bill of exceptions.</p>

George Ogelsby against Abraham Oves. Amicable action and case stated in the nature of a special verdict. Samuel B. Sherer being the owner of a lot of ground which he used as a tannery, erected upon it a steam engine and fixtures, for the purpose of grinding bark and breaking hides in the course of his business. He failed; and Abraham Oves issued a fieri facias against him, and levied on the engine and fixtures.

<p>The specific performance of an agreement for the sale of land, cannot be enforced by the vendee by action of ejectment against a vendor, whose wife refuses to join her husband in the conveyance. And in such action the plaintiff is not entitled to recover the possession of the land, upon proof of a tender of performance on his part, and demand of title such as he stipulated for in the agreement.</p>

<p>ERROR to the common pleas of Mifflin county.</p> <p>This was an action of ejectment by George Mitchell against Charles Bratton, to recover a tract of land. The questions determined by the court arose solely upon the plaintiff’s exhibition of title. His evidence was, that a warrant was taken out for the land on the 28th of May 1817, in the name of James M’Donald, for himself and Thomas Baird, who paid one half of the purchase money. Baird died intestate and without issue, leaving a widow and one sister, his heir at, law, the wife of the plaintiff, George Mitchell, who afterwards purchased and obtained a deed for the widow’s interest, and brought this ejectment in his own name, without joining his wife with him, she being in full life.</p> <p>The question was whether he could recover in this form of action, either in right of the widow or his wife.</p> <p>The court below was of opinion, and so instructed the jury, that he could recover in both rights. Verdict accordingly for the plaintiff.</p> <p>This direction was the subject of the errors assigned.</p>

<p>ERROR to the common pleas of Berks county.</p> <p>George W. Heffernan, administrator of Catherine Heffernan deceased, against Elijah Deckart and Peter Addams, administrators of John Addams deceased. Feigned issue to try the right of Catherine Heffernan to money in court arising out of the sale of the real estate of William Singer.</p> <p>Henry Singer the elder by his will devised a tract of land to his son Henry Singer, subject to the payment of the interest of 200 pounds annually to Catherine Heffernan. Henry Singer the younger died intestate and without issue, but leaving a widow. The land was appraised by a proceeding in partition, and taken by his brother John Singer, who entered into a recognizance for the payment of 900 pounds to his brothers and sisters after the death of his brother Henry’s widow, of which 180 pounds would be the share of Catherine Heffernan. While the widow of Henry Singer was yet alive, and before the 180 pounds were payable to Catherine Heffernan, she and her husband, Hugh Heffernan, gave to their brother, Hugh Henry Heffernan, the following power of attorney:</p> <p>“ Know all men by these presents that we, Hugh Heffernan and Catherine his wife, formerly Catherine Singer, of the township of Wayne, county of Crawford, and commonwealth of Pennsylvania, have nominated, constituted and appointed, and by these presents do nominate, constitute and appoint, and in our place and stead put and depute Hugh Henry Heffernan, of the same place, our true and lawful attorney for us and in our name, and to our use, to ask, demand, sue for, recover and receive all such sum and sums of money, debts, dues, accounts, and other demands whatsoever, which are or shall be due, owing, payable and belonging to us, or detained from us, by any manner of ways or means whatsoever ; especially, all the share, part or dividend of the said Catherine Heffernan, formerly Catherine Singer, of, in and to the estate of Henry Singer, late of the county of Berks deceased, (whether the same be real or personal) now in the hands and possession of John Singer, administrator of the estate of the said Henry Singer deceased, being; and we hereby further authorize and empower our said attorney to release all our right, title, interest, property, claim and demand of, in and to the estate whereof the said Henry Singer deceased died seised, unto the aforesaid John Singer, his heirs and assigns; and also for us and in our name, place and stead, and as our proper act and deed, to sign, seal and deliver and acknowledge all such deed or deeds of release as shall or may be necessary in and about the premises, giving and granting unto our said attorney, by these presents, our full and whole power, strength and authority about the premises, to have, use and take all lawful ways and means, in our name, for the purposes aforesaid; and upon the receipt of any such debts and dues, or sums of money, acquittance or other sufficient discharges, in our name, to make, seal and deliver; and generally all other acts, things and devices in the law whatsoever, needful and necessary to be done in and about the premises, for us and in our name, to do, execute and perform, as full}’', largely and amply, to all intents and purposes, as we ourselves might or could do if personally present; hereby ratifying, allowing and confirming all and whatsoever our said attorney shall lawfully do in and about the premises by virtue hereof. In witness whereof we have hereunto set our hands and seals the 10th day of June, in the year of our Lord 1814.</p> <p>“Hugh Heffernan, [l. s.]</p> <p>“Catherine Heffernan, [l. s.]”</p> <p>In pursuance of this power of attorney, Hugh Henry Heffernan, the attorney, executed the following release:</p> <p>“Know all men by these presents, that, I, Hugh Henry Heffernan, of the township of Wayne, county of Crawford, and commonwealth of Pennsylvania, yeoman, sendeth greeting. Whereas Henry Singer, in his lifetime, made his last will and testament, bearing date the 30th day of September, in the year of our Lord 1799, wherein and whereby, amongst other things, he did give and bequeath in the words following, to wit: Item, I give and bequeath unto my daughter Catherine the sum of five shillings as for her inheritance out of my estate, both real and personal. Provided, nevertheless, that the two last payments which my son Henry is to pay for the land hereby devised to him, shall remain unpaid and charged on said land; and my said son, Henry Singer, his heirs and assigns, are to pay the interest thereof, from the time said payments become due, unto my said daughter Catherine, yearly, during her natural life, as in and by said recited will since his decease duly proven and remaining in the register’s office at Reading, in and for the county of Berks, recourse thereunto had, appears. And whereas the said Henry Singer, son of the said Henry, became in his lifetime lawfully seised, in his demesne as of fee, of and in a certain messuage or tenement and two tracts of land, situate in Alsace township, Berks county, containing together one hundred and fifty acres, being the same which the said Henry Singer, by the above recited will, did give and devise unto his said son Henr.y, with the appurtenances, and being so thereof seised died intestate and without issue, but leaving a widow, now intermarried with Henry Seiler, and brothers and sisters, to wit, John Singer, William Singer, Eve Singer, and the said Catherine, intermarried with Hugh Heffernan, to whom, by the laws of Pennsylvania relating to intestate’s estates, did descend and come. And whereas the said real estate of the said intestate was valued and appraised by an order of the orphan’s court of the county aforesaid, and adjudged by the said orphan’s court to the said John Singer, one of the heirs at law, as in and by the records and proceedings of the said court had more at large will appear. And whereas the said Hugh Heffernan and Catherine his wife, late Catherine Singer, by their attorney, Hugh Henry Heffernan, by letter of attorney under their hands and seals, bearing date the 10th day of June, in the year of our Lord 1814, did nominate, constitute and appoint the said Hugh Henry Heffernan, for and in consideration of the sum of 200 dollars in specie to me in hand paid, by John Singer, of the borough of Reading, county of Berks aforesaid, yeoman, at and before the ensealing and delivering hereof, the receipt whereof is hereby acknowledged, and thereof acquit and forever discharge the said John Singer, his heirs, executors and administrators, by these presents, hath granted, bargained and sold, aliened, enfeoffed, released and confirmed, and by these presents doth grant, bargain, sell, alien, enfeoff, release and confirm unto the said John Singer, and to his heirs and assigns, all such sum or sums of money due, or hereafter becoming due, unto the said Hugh Heffernan and Catherine his wife, out of the estate of the said Henry Singer, the elder, agreeable to the above recited will; and also all such sum or sums of moneys which are due, or hereafter becoming due, out of the estate of Henry Singer, the younger, deceased, arising and issuing out of and from the said messuage or tenement and two tracts of land situate in Alsace township, aforesaid. And further, I do, by these presents, acquit, release, and forever discharge the said John Singer, his heirs, executors, administrators, and every of them, of and from the payment of all such sum or sums of money, legacies or bequests, now due or hereafter becoming due unto Hugh Heffernan and Catherine his wife, arising out of the estate of the said Henry Singer, agreeably to his said will. And also all such sum or sums of money due and hereafter becoming due unto the said Hugh Heffernan and Catherine his wife, out of the real estate or personal estates situate in Alsace township aforesaid, whereof the said Henry Singer, the younger, died intestate; and also of and from all actions, suits, accounts, costs and charges, payments, dues, demands, damages, trouble and expenses whatsoever, touching or concerning the premises aforesaid. In witness whereof I have hereunto set my hand and seal, this 7th day of July, in the year of our Lord 1814.</p> <p>“Hugh H. Heffernan, [l. s.]</p> <p>“Sealed and delivered in the presence of us</p> <p>“Ichabod Hamlin, )</p> <p>“Henry Betz.” )</p> <p>After the death of the widow of Henry Singer, this issue was joined to try the right of Hugh Heffernan and Catherine his wife to the principal sum of 180 pounds, payable at the death of lhe said widow, and also to recover the arrearages of interest on the 200 pounds which became due after the date of the release. And the questions were, whether, under the foregoing power of attorney, Hugh Henry Heffernan had authority to release as he did do? And whether the release was the deed of his principal?</p> <p>The court below was of opinion that the release was a bar to the plaintiff’s recovery, and so instructed the jury.</p>

David Garber for the use of Jacob W. Seitzinger, against Daniel Drenkle, administrator of John Garber deceased. Action of debt on bond. The cause was referred to arbitrators, who found for the plaintiff 897 dollars, from which the defendant entered an appeal on the 18th March 1829 ; and on the same day, by an agreement signed by Drenkle and Seitzinger, the appeal was withdrawn; after which Drenkle died, and Daniel Esterly became his administrator.

Samuel Reader against Henry M’Kinney. This was an action of trespass, in which the plaintiff set out in his declaration that he was quietly possessed of a house and lot of ground in the borough of Harrisburg, and that the defendant broke and entered into the premises and kept the possession.

Francis M. Drexell against David W. Ruling. This was a scire facias upon a mortgage given by the plaintiff in error to the defendant in error, dated the 5th of September 1831, to secure the payment of 8000 dollars with interest, in eight years from the date.; which interest was made payable in Philadelphia every six months; and the mortgage contained also a provision, that it the interest remained unpaid at any time for the space of thirty days after it became due, the…

Daniel Reinhart, indorsee of Peter Reinhart against John C. Offerman. Action on two negotiable notes dated the 24th July 1834; one for 700 dollars, payable in eight months, the other for 500 dollars payable in six months, at the office of discount and deposit at Reading. As to the first note no defence was made. The charge of the court below, which states the facts of the case distinctly, was the only subject of exception.

Joseph Kauffman and Mary Ann his wife, against George Sailor, John Sailor and Mathias Sailor. Assumpsj,t. The parties to this suit agree to the following facts, and that they be considered in the nature of a special verdict, upon which the court shall render a judgment, with leave, to either party, to sue out a writ of error without oath or bail.

John Brown and Eve his wife, formerly Eve Rieth, against Magdalena Anspach, administratrix of Adam Anspach deceased, who was guardian of the said Eve. This was a scire facias post annum, et diem to revive a judgment which was originally found against the defendant’s intestate for the balance in his hands as the guardian of the plaintiff’s wife, on the 8th of November 1833.

Elizabeth Mentzer against John Riddlesberger. Action of dower. Daniel Mentzer, the husband of the plaintiff, was seised in his lifetime, and during coverture, of a tract of land, for the sale of which, on the 3d of July 1819, he entered into articles of agreement with Catherine Mentzer, at 90 dollars per acre, and received part of the purchase money and delivered the possession, but executed no deed.

<p>WRIT OF ERROR to the common pleas of Cumberland county.</p> <p>This was an action of ejectment by Christian Whisler and Catherine his wife, and others who are the heirs at law of Philip Hartman deceased, against Samuel Bear, to recover a tract of land.</p> <p>The parties, plaintiffs and defendant, claim under the same original title, which was vested in Margaret Dickey and Robert Anderson, who, in the year 1806, sold and conveyed the same in fee to Philip Hartman, who, with Martin Harman as his surety, gave to the said Margaret Dickey and Robert Anderson six bonds for the payment of 80 dollars each on the 1st of April 1816, 1817, 1818, 1819, 1820 and 1821. On the 13th of March 1815, Philip Hartman of the one part, and Jacob Angney of the other part, entered into an article of agreement, by which Hartman sold the said land to Angney upon the terms and conditions mentioned in the said agreement. At the same time this agreement was entered into, Jacob Angney, with Isaac Angney as his surety, entered into a bond to Martin Harman in the penalty of 1000 dollars, conditioned to indemnify him against the payment of the six bonds before mentioned. On the 20th of March 1815, Philip Hartman and wife executed a deed of conveyance for the land in dispute, and delivered the same to Jacob Angney. Jacob A ngney did not pay the six bonds of Hartman and Harman to Margaret Dickey and Robert Anderson, as he covenanted to do; but Harman paid the same, and then sued the bond of indemnity of Jacob Angney, and Isaac Angney his surety before referred to; and, in 1819, obtained a judgment thereon, upon which executions were issued and levied upon the land now in dispute as the property of Jacob Angney, and upon a venditioni exponas to April term 1823 the said tract of land was sold to Isaac Angney, Sen. for the sum of 25 dollars, who received the sheriff’s deed therefor. The defendant, Samuel Bear, purchased from Isaac Angney, Sen., and holds under his title. Nó part of the money payable by Jacob Angney to the heirs of Philip Hartman, as mentioned in the agreement between the said Hartman and Jacob Angney before referred to, was ever paid. The plaintiffs are the heirs of Philip Hartman, and have brought this action of ejectment to enforce the payment of the said money. Upon these facts, the question is, whether the plaintiffs are entitled to recover in this action? If they be, the court will render a judgment for the plaintiffs, tobe released upon the payment of the amount due on the lath day of November 1838 which' shall be ascertained by the prothonotary. But if the court should be of opinion that the plaintiffs are not entitled to recover in this action, then judgment to be rendered for the defendant. Philip Hartman died in 1818, and was furnished during his lifetime with the provisions, &c, mentioned in the agreement.</p> <p>Article of agreement, made and concluded the 13th day of March, A. D. 1815, between Philip Hartman, of East Pennsborough township, in the county of Cumberland, and state of Pennsylvania, yeoman, of the one part, and Jacob Angney, of the same place, of the other part, witnesseth, that the said Philip Hartman doth hereby bargain and sell to and with the said Jacob Angney a certain plantation, or tract of land, situate in the township, county and state aforesaid, adjoining lands of Martin Harman, Cornelius Myers, and others, containing one hundred and twenty-five acres, for and in consideration of the said Jacob Angney, his heirs, executors, administrators or assigns, or either of them, faithfully discharging the following covenants and agreements, to wit: said Jacob Angney shall well and trnly pay, or cause to be paid, six different bonds or obligations, each conditioned for the payment of 80 dollars by the said Philip Hartman and Martin Harman to Margaret Dickey and Robert Anderson, the first of which beoomes payable on the l?.t day of April, A. D. 1816; and further, that said Jacob Angney shall and will grant and provide for said Philip Hartman and Elizabeth his wife, during their natural lives, the privilege to occupy that part of the dwelling house which they now live in, and provide as much flour as may be necessary to keep them in bread and of as good a quality as they whose duty it may be to provide the same may have for their own use, and a sufficient quantity of fire-wood at all times ready cut and delivered at the door, and one cow to be kept in stable room, sufficient hay and pasture, and two pigs to run at large, and as many poultry as they may have occasion for, and fruit when there be any, with privilege to the spring and spring-house, and also the use of the one-half of the garden. And it is also agreed between the said parties, that said Jacob Angney shall and will not sell or convey the aforesaid tract of land to any person during the lifetime of said Philip Hartman : and within one year after his decease (if the same shall not happen before the said six bonds shall become due) the said Jacob Angney doth hereby obligate himself, his heirs, executors and administrators, and every of them, to pay to the other heirs of said Philip Hartman as follows, to wit, 80 dollars to Catherine, intermarried with Christian Wisler; the second year, a like sum of 80 dollars to John Chesnut, of Lancaster county, for the use of Magdaline, intermarried with Daniel M’Neal (if the said M’Nea] should then be living), and in case said Magdaline should survive her present husband, in that case she shall receive the same herself, otherwise the said John Chesnut shall always receive the same for the use of said Magdaline, or her heirs, to be equally distributed among them, or, if left minor orphans, to be applied towards their education and maintenance; and the third year, the sum of 80 dollars to be paid to Elizabeth, intermarried with John Chesnut; and the fourth year, beginning again by paying a like sum of 80 dollars to Catherine, wife of Christian Wisler, or their legal representatives; and so in rotation, 80 dollars to be paid and received yearly and every year, as herein before directed, until each of the aforesaid three heirs have received four payments of 80 dollars each; and the thirteenth year, 80 dollars to be paid, and to be equally divided between the heirs aforesaid, as also the fourteenth year, and last payment (which will be 40 dollars), which is to be equally divided as aforesaid, making a total sum of 1080 dollars, to be paid to the several heirs aforesaid,. making the whole amount of the consideration money. And said Philip Hartman is to execute a conveyance on or before the 1st day of April next, clear of all incumbrances, excepting the privileges and donations herein before reserved; and for the true performance of all and singular the covenants and agreements herein before specified, the parties hereof bind themselves to one another in the penal sum of 4000 dollars.</p> <p>In testimony whereof, the parties hereto have interchangeably set their hands and seals the day and year within written.</p> <p>his</p> <p>Philip x Hartman, [l. s.] mark</p> <p>Jacob Angney, [l. s.]</p> <p>This agreement was recorded 9th December 1815.</p> <p>The deed from Philip Hartman and Elizabeth his wife to Jacob Angney was in common form, and had the following conclusion. It was regularly acknowledged, and had a receipt for the consideration money 1080 dollars.</p> <p>And the said Philip Hartman and Elizabeth his wife, and their heirs, the said described tract of land hereby granted, with the appurtenances, unto the said Jacob Angney, his heirs and assigns, against them, the said Philip Hartman and Elizabeth his wife, and their heirs, and against all and every other person or persons whomsoever, lawfully claiming or to claim the same by, from or under them or either of them, shall and will warrant and forever defend by these presents.</p> <p>In witness whereof, the said Philip Hartman and Elizabeth his wife have hereunto set their hands and seals the day and year above written; subject, nevertheless, to the conditions and obligations con,! tained in a certain article of agreement existing between the parties* bearing date the 13th of March last past.</p> <p>The court below (Reed, President) rendered a judgment for the plaintiffs.</p>

Erskine and Eichelberger against Sangston. This was a scire facias against the defendant as garnishee in a foreign attachment, issued by the plaintiffs against Dennis K. Battie. The defendant, in answer to the interrogatory put by the plaintiff, admitted that he had in his hands at the time of the service of the attachment, on the 5th of May 1836, 500 dollars, and that there came to his hands, subsequently, 160 dollars 67 cents.

<p>ERROR to the common pleas of Berks county.</p> <p>This was an action of assumpsit by Daniel Gulden against Adolph Hatzfield, to recover from the defendant the sum of 1000 dollars as a compensation to the plaintiff for procuring a pardon for the defendant, who had been convicted of murder in the second degree and sentenced.</p> <p>The court below was of opinion that the law did not forbid a. recovery by the plaintiff, if the jury believed he was otherwise entitled to recover.</p>

<p>A father, in making distribution of Ms estate, agreed to convey a tract of land to his two sons, in consideration that they would maintain him and pay 1000 pounds to the children of a deceased daughter; and afterwards did convey the same expressly, subject to the maintenance of himself, but not subject to the payment of the 1000 pounds. Held, that a purchaser from the sons held the land discharged from liability for the 1000 pounds.</p>

William J. Jones, administrator of John Pauley deceased, against Thomas Pauley, with notice to terre-tenants. Scire facias sur recognizance taken in the orphan’s court, to recover 126 dollars 11 cents secured to be paid to the plaintiff’s intestate upon the death of his mother, being his interest in his father’s estate, taken at the valuation by the eldest son'in 1807. The widow died on the 31st of July 1820.

William M’Clelland against Adam Myers. Issue directed by the court to try the right to a sum of money in the hands of the sheriff, made upon the sale of the real estate of Johnston & Lyon. Adam Myers obtained three judgments against Duncan & Mahon amounting to 1900 dollars, which were entered upon a warrant of attorney by John L. Fuller, Esq. The estate of Duncan & Mahon was afterwards sold upon a subsequent judgment, and purchased by John L. Fuller for Johnston & Lyon.

WRIT of error to the special court of Jldams county. This was an action of ejectment by David Witherow against Samuel B. Epley, eldest son and heir at law of Peter Epley deceased, against whom the original action was brought to recover the undivided moiety of one hundred and fifty acres of land, with a merchant mill, saw mill, &c., thereon erected. The parties claimed under the same original title which was in Christian Routzong.

SAMUEL ISAACS and William Young against the administrators of Simon Koppenhaffer deceased. This was a special verdict, in which the only question which arose was, whether the estate of a deceased testator should pay the costs of an issue of devisavit vel non, and thereby charge all the legatees and devisees with contribution, or whether they should be paid exclusively by the parties interested in the issue!

Upon the hearing before the court of quarter sessions, Walker township was permitted to give parol evidence of the fact that Benjamin Troy was bound by indenture and served in West Buffaloe township, without giving sufficient evidence of the loss of the indenture ; and upon this evidence they affirmed the order of removal.

This was an action of replevin for a horse by Benjamin Pott against Jacob Oldwine. The defence was, that the horse was seized for the non payment of a militia fine, in support of which the warrant issued by George W. Farquhar, captain of a troop of cavalry, was given in evidence. The plaintiff, in answer to which, offered to prove, that, according to the by-laws and regulations of the said troop, he was not a member when the fine was imposed.

ERROR, to the common pleas of Huntingdon county. Andrew R. Hirst against John M’Caban. This cause originated before a justice of the peace, and was brought into the common pleas: by appeal. The plaintiff filed the following declaration : to which the defendant pleaded not guilty.

The Chief Burgess, &c. of the borough of Harrisburg against William Duck and William Berrybill. This action was brought to recover the penalty of 5 dollars, under the following ordinance of the borough. Section 3.

<p>ERROR to the common pleas of JWifflin county.</p> <p>The Commonwealth of Pennsylvania for the. use of the Juniata Bank of Pennsylvania against John Beale administrator of William Beale deceased.</p> <p>This was an actionof debt upon theofficial recognizance of Thomas Beale sheriff of Mifflin county, in which the defendant’s intestate was a surety. The defendant pleaded payment with leave, &c.; and also specially, “that William Beale, Esq., defendant’s testator, died on the 28th day of October in the year 1820; and that this suit was commenced in this court on the 20th day of December in the year 1821.</p> <p>“And further avers that this action has not been duly prosecuted against the heirs, executors or administrators of the said William Beale, Esq. within the period of seven years from and after the death of the said William, as appears by the record in this cause. Wherefore he avers that the said plaintiff ought not to have and recover judgment against the defendant.</p> <p>“And further avers that the plaintiff in this cause ought not to have and recover judgment against the lands, tenements and hereditaments which were of the said William Beale at the time of his death.</p> <p>“ And the said defendant further pleads that he has fully administered the goods and chattels, rights and credits of the said William Beale deceased, which have or might have come to the hands and possession of the said defendant, and has paid the same away to prior creditors, and has nothing left in his hands as administrator of the said William Beale to pay and satisfy the demand of the plaintiff in this suit or any part thereof.”</p> <p>Replication. That the within mentioned action has been duly prosecuted against the executors and administrators of the said William Beale deceased, and that the plaintiff ought to recover judgment against the defendant, and against the lands, tenements and hereditaments which were of the said William Beale at the time of his death, and that the executors and administrators of said deceased have not fully administered the estate which wasof the said William Beale at the time of his death, and that the defendant has sufficient in his possession and power to pay the demand of the plaintiff in this suit, issue, &c.</p> <p>Upon the trial of the cause, the plaintiff gave in evidence an execution issued upon a judgment of the Rank against Thomas Robinson to November term 1818, with a return upon it levied upon certain personal property; and then offered in evidence a receipt of sheriff given to the defendant for 102 dollars, on account of that execution, dated the 19th December 1818. This evidence was objected to on the ground that the receipt was after the return day of the writ, and therefore given without authority; but the court overruled the objection, and sealed a bill of exceptions.</p> <p>The plaintiff offered in evidence another execution of the Bank against James M’Bride with the return upon it by Levi Reynolds deputy sheriff “levied on personal property.” This was objected to on the ground that the deputy of a sheriff has no legal power to make a' return to an execution. The objection was overruled, and exception was taken by defendant.</p> <p>Upon several judgments of the bank, executions issued to'the sheriff for the fees which had accrued to the different officers; and upon the trial of the cause, the plaintiff olaimed to recover those which had been collected by the sheriff, and were not paid over. The court below was of opinion that the costs which accrue in the prosecution of a suit are the plaintiff’s costs, and upon the collection of them, the sheriff is bound to pay them to him ; and instructed the jury that the plaintiff was entitled to recover them in this suit: to this opinion the defendant excepted.</p> <p>A capias ad satisfaciendum was issued at the suit of the Bank against Alexander Sanderson: to which the sheriff made this return, “served and delivered to court.” There was nootherevidence upon the subject. The court was of opinion that the return was insufficient and unless the bank interfered with the execution of the writ, the sheriff’s sureties would be charged with the amount of the judgment.</p> <p>Upon a judgment of the Bank against Reynolds, a fieri facias was issued, which the sheriff returned levied upon a carriage, harness, gig, store goods, and household and kitchen furniture, whereupon a venditioni exponas issued, and then a rule was obtained to show cause why the same should not be set aside : this rule remained undetermined for five years, when it appeared this entry was made upon the docket, “defendant appeared in court and produced sheriff Beale’s receipt for debt, interest and costs, and it appearing to the court that the plaintiff had instituted a suit against the bail of the sheriff, the proceedings in this case stayed until'the termination of this suit.” It appeared that the personal property of David Reynolds was sold after the levy of the same on the execution of the bank, upon an execittion of another person. Upon these facts the court below instructed the jury, that a return of “levied upon personal property” was prima facie evidence that the levy was sufficient to pay the debt, but that was subject to be rebutted, by proof that it was not sufficient, or that there were prior levies or incumbrances upon it.</p> <p>David Reynolds was one of the sureties of the sheriff with the defendant’s intestate, and it was contended by the defendant that the direction of the execution of the bank to the sheriff against one of his sureties was an equitable release of the other sureties from liability for the consequences. But the court was of a different opinion and so instructed the jury.</p> <p>The defendant also insisted upon the facts contained in his first special plea as a defence. But the court below was of opinion that they did not in law constitute any defence.</p> <p>The writ of the plaintiff did not set out the name of any one for whose use the suit was brought, and upon this ground also the defendant contended that the plaintiff could not recover. But the court was of a different opinion.</p> <p>All these exceptions were assigned for error.</p>

<p>ERROR to the common pleas of Dauphin county.</p> <p>Michael Katterman against John Stitzer. Action on the case for falsely and maliciously arresting, prosecuting and imprisoning the plaintiff upon a charge of perjury.</p> <p>The plaintiff offered in evidence a copy of the record of the court of quarter sessions of Schuylkill county showing the indictment, issue, trial, verdict and judgment in the case of the Commonwealth against Michael Katterman for perjury, for the purpose of showing that the present plaintiff was acquitted, and also that John Stitzer was the prosecutor and was directed by the jury and sentenced by the court to pay the costs.</p> <p>The defendant objected to the evidence for any purpose but to show an acquittal. The court below admitted the e'vidence for that purpose, but rejected it for the purpose of showing that the present defendant was the prosecutor.</p> <p>The plaintiff offered in evidence a transcript of the docket entry of the information against and commitment of Katterman, made by William Wingent, Esq. a justice of the peace, who had removed from the state, and which was duly certified by Leonard Reedy, a justice to whom the docket was delivered. This evidence was objected to by the defendant, and rejected by the court.</p> <p>After the evidence given, the plaintiff offered to prove that John Walborn, who is slated in the indictment against Katterman to have been the person to whom the orders mentioned, concerning which Katterman was alleged to have committed perjury, were given by Katterman, swore on the trial of Katterman before the court of Schuylkill county, that said order was taken into the accountbetween ■Stitzer and Katterman, prior to the time when Katterman swore before the referees ; and that prior to that time, Stitzer had agreed to pay the amount of said order to Walborn. For the purpose of showing that Stitzer commenced the prosecution against Katlerman, and indicted him without reasonable or probable cause; and that he the said Stitzer knew there was no ground whatever for the prosecution of said Katterman.</p> <p>It was objected that this was an offer to prove what a witness swore in a trial between other parties; a different point in issue and in a criminal prosecution.</p> <p>The objection was sustained, and the plaintiff excepted.</p> <p>The plaintiff also offered to prove that in the trial of a certain cause wherein the defendant John Stitzer was plaintiff and the plaintiff Michael Katterman was defendant, instituted to recover the amount of the order mentioned in the indictment of said Katterman, John Walborn, the holder of said order mentioned in said indictment, swore that said order was settled for by said Katterman and Stitzer, prior to the time when Katterman swore respecting the same; that said Stitzer had agreed to pay the amount thereof to the witness Walborn; and had promised said Walborn to pay him as soon as he got said order from Katterman; that said order was not written till the month of April following the time when Stitzer agreed to pay the same; for the purpose of showing that the prosecution and indictment of Katterman by Stitzer, were without reasonable or probable cause; and that said Stilzer knew that said Katterman was not guilty when he prosecuted him for perjury.</p> <p>It was objected by the defendant, that this was an offer to prove what witness swore in a different cause from the present, wherein the point in controversy and the issue were different.</p> <p>The objection was sustained, and the plain tiff excepted.</p> <p>The plaintiff then offered to prove that the present suit originated by a capias, that the defendant was imprisoned, and took out a habeas corpus to have himself released, in which he failed and then gave bail.</p> <p>The evidence was objected to and rejected.</p>

Henry Shenberger against Anthony Knisely. Amicable action and case stated, in substance thus : John Patterson, seised of fifty-five acres of land, conveyed it to the plaintiff, Henry Shenberger. At the time, there were two judgments in favour of John Baymiller which were liens upon the land; and in consideration that Shenberger would accept the deed and pay the purchase money, which he did, this paper was executed and delivered to him: “April 4th, A. D. 1832.

The president of the orphan’s court for the use of Joseph Good against John Good with notice to Christian Good terre-tenant.. Peter Good died intestate, seised of certain real estate, and, in a proceeding in the orphan’s court, under the intestate laws, on the 24th of September 1792, the same was taken by John Good the defendant at the valuation, upon his entering into a recognizance for the payment of the interest of the widow and shares of the other heirs.

APPEAL by J. Hoops from the decree of the orphan’s court of York county, settling the administration account of Jesse Brinton and Mills Hays, executors of John Brinton deceased. Jno.

This was an action of partition in the court of common pleas of Perry county, in which the parties were William Power, plaintiff, against Alexander Power, Edward Power, Dr John M. Laird, and Julia his wife ; Fatima M’CJelland, Henry M’Clelland, Elias M’Clelland, Hannah M’Clelland and James M’Clelland, by their guardian James Marshell; and Louisa M’Clelland, by her guardian Frederick Eichelberger, defendants. 5th January 1838, Alexander Power and Edward Power appear by A. C.…

<p>Aa action of trespass will not lie against a- plaintiff for suing out a capias and arresting a freeholder for debt. If it be maliciously sued out, and with a design to oppress the. defendant, an action on the case is the proper remedy.</p>

<p>Seven daughters, some of whom were sole, others covert, and a grandson by an eighth daughter deceased, being the heirs, and as such entitled to the real estate of their father and grandfather, made partition thereof, by means of commissioners, appointed for that purpose by an agreement made in writing and executed by them under their hands and seals ; directing thereby, also, the form and manner in which the partition was to be made, as also the mode whereby each one should have his or her allotment ascertained and appropriated; after which deeds of release and confirmation were to be executed by the rest to each for his or her purpart. Deeds of conveyance, by way of grant, bargain and sale after the partition was made, were executed by the other heirs, in which the husbands of such as were married joined, conveying in fee to the husbands respectively of two of the heirs their respective allotments; thus excluding the wives altogether. A deed of like nature was written and prepared to be executed by the other heirs, conveying to the husband alone the allotment drawn by his wife, a third heir; and after being executed by one of the other heirs and her husband, and by the latter handed over to the husband of another heir to be executed by the rest of them, without its being made to appear by any other or more evidence that it was so executed, or what became of it afterwards. Upon this the court below instructed the jury, that the evidence was not sufficient to warrant them in finding that the last conveyance was ever executed by the other heirs. Held, that such instruction was correct.</p> <p>Held also, that the heirs, having taken possession of their respective allotments, according to the partition made by the commissioners, and having continued thereafter to hold the same, in severalty, the wife of the husband for whom the deed of conveyance was so prepared, but not executed by the rest of the heirs, immediately upon the death of her husband, she surviving him, became exclusively seised in severalty of the fee simple estate in her allotment, and dying so seised, it descended to her children, who were held entitled to recover the possession thereof from the purchasers of it at sheriff’s sale under a judgment and execution against the representatives of her husband.</p> <p>The act of 1797 limits the lien of debts due from a deceased debtor upon his real estate, to the term of seven years from the time of his death ; when it shall cease, if the debt be payable within that period, unless suit shall be brought for the recovery of it; in which case if the suit be duly prosecuted to judgment within that time, the lien will be extended to twelve years from the death of the debtor; and when suit shall be commenced within the seven years, but judgment is not obtained until after that term shall have expired, the lien of the debt will be continued in such case till the end of five years from the date of the judgment: capable, however, of being continued indefinitely in either of the cases by a revival thereof every succeeding term of five years by scire facias.</p>

<p>A magistrate bound to make title by a conveyance from a third person, is incompetent to receive the acknowledgement of the grantor’s wife.</p> <p>Covenants relating to the mass of a tract, are applicable to land acquired in exchange for a part of it, and substituted in a contract of sale for the part exchanged.</p> <p>A covenant to make “ a good and lawful deed of conveyance clear of all incumbrances,” is satisfied by a deed with special warranty, where the parties have expressed their meaning to be, “ only a warranty deed subject to all the demands of the commonwealth.”</p> <p>A vendor cannot sue for purchase money, before the removal of an incumbrance suffered by him subsequently to the date of the articles of sale.</p>

George W. French against William Seely. Ejectment for four hundred acres of land.

<p>ERROR to the common pleas of Susquehanna county.</p> <p>David Lindsey against J. W. Corah. Appeal by defendant from the judgment of a justice, in debt, for 7 dollars 11 cents. The case was referred out of court to arbitrators, who made an award in favour of the plaintiff for 28 dollars 16 cents, from which the defendant again appealed. Upon being tried by jury, a verdict and judgment were rendered for the plaintiff for 4 dollars 40 cents, upon which the plaintiff issued an execution for full costs, 76 dollars 31 cenls.</p> <p>On motion, the court set aside the execution, and entered ajudgment for the plaintiff without costs, on the ground that the defendant, had succeeded in his appeal.</p>

<p>ERROR to the common pleas of Bradford county.</p> <p>William Keeler against Ensign D. Rundel. Appeal from the judgment of a justice of the peace. The case is accurately stated in the opinion of the court.</p>

John Marcy against Andrew Gardinier. This was an action of trespass for cutting timber, which involved the question as to the title to a tract of land. The points decided and the facts are distinctly stated in the opinion of the court.

<p>WRIT of error to tbe common pleas of Tioga county.</p> <p>This was an action of ejectment by Samuel C. Jaques against Samuel Weeks and Lewis Saynisch for two hundred and eighteen acres of land, the original title to which the parties admitted to have been regularly vested in John H. Knapp.</p> <p>The plaintiff gave in evidence a deed from John H. Knapp and wife to Asbury Crocheron forseven-eighlh partsof the land in dispute, dated 7th April 1829, and recorded 20th July 1829, and a deed from Asbury Crocheron and wife to himself Samuel C. Jaques, dated 20th June 1831, and recorded on the 11th November 1831.</p> <p>The defendants, to maintain the issue on their part, offered in evidence a deed of defeasance for the same land from Asbury Crocheron to John H. Knapp dated the 7th April 1829. John H. Stephenson was a subscribing witness to this deed, and it was proved by him before Thomas M’Elrath, a Pennsylvania commissioner resident in the state of New York, who certified the probate under hand without a seal. This evidence was objected to by the plaintiff, on the ground that the deed was not proved and certified according to law; that the act of the 14th April 1828 required the commissioner to certify “under his seal.” Yet the court below was of opinion that the defect was cured by the act of the 19th February 1835, and overruled the objection and sealed a bill of exception.</p> <p>This deed of defeasance was not recorded.</p> <p>The defendant then gave evidence, that John H. Knapp remained in the possession of the land after the date in the deed to Asbury Crocheron, and until he left the country in May 1833 ; and then a a deed from John H. Knapp and wife to Samuel Weeks the defendant, dated the 15th April 1833: the consideration was 500 dollars, and it embraced the whole of the two hundred and eighteen acres of land. Also a deed from Samuel Weeks to Ellis Lewis, dated 27th June 1834, for the consideration of 75 dollars, and from Ellis Lewis to Lewis Saynisch of -the same date, and recorded 23d September 1834.</p> <p>The defendants, further to maintain the issue on their part, gave in evidence another title, to wit, a judgment of William Willard, Jun. for the use of Levi Cooly against John H. Knapp for 120 dollars, entered the 20t.h June 1832, upon which ajierifacias was issued in 1835 and levied on the land in dispute : a venditioni exponas was issued and the land was sold by the sheriff to John W. Gurnsey for 30 dollars, who received the sheriff’s deed therefor dated 31st December 1835, and conveyed it to Lewis Saynisch by deed dated 27th February 1836 for the consideration of 100 dollars: at the sale express notice was given of the plaintiff’s title. Lewis Saynisch went into the possession of the land under his first title in July or August 1833, soon after John H. Knapp left it, and moved his family to it in the spring of 1835. Weeks and Saynisch both had improvements made and work done on the land in the spring of 1834.</p> <p>The plaintiff to rebut the effect of the evidence given by the defendants, offered to prove that from 1830 to 1833 it was generally reported in the neighbourhood that John H. Knapp had sold out all his interest in the land to Crocheron, and that such report was communicated to Weeks the defendant.</p> <p>The plaintiff objected to the evidence, and the court rejected it and sealed a bill of exception.</p> <p>The plaintiff then called many witnesses to prove that Samuel Weeks knew of the title of Crocheron in the fall of 1832, before he purchased from Knapp; the testimony of some of them was as follows :</p> <p>Isaac Baldwin “ deposes and says, that he had several conversations with said Samuel Weeks, concerning lands at or near Blossburg, Tioga county, Pennsylvania, formerly owned by John H. Knapp ; t hat he had conversations with said Weeks, on said subject, in the fall of the year 1832, or the following winter; and that said Weeks then said to him, said Baldwin (who was .then one of the assignees of said Knapp, under the insolvent laws of the slate of New York), that the said Weeks wished to procure a deed from him, said Baldwin, for said land ; was willing to give for such deed 100 dollars ; that said Baldwin then gave said Weeks no definite answer, but spoke of said Jaques’s title to said land, and asked him of what use a deed would be from him, said Baldwin; to which said Weeks replied, that he was aware of said Jaques’s title, and remarked that in Pennsylvania it made not much difference from whom a man obtained his deed so that he had one; that he, said Baldwin, then told him he would give him an answer the next time he saw him. Said Baldwin further says, that according to (he best of his recollection, said Weeks called upon him again the ensuing spring, 1833, and again asked him for the deed of said land, and repeated his offer of 100 dollars; that he, said Baldwin, then declined giving such deed, and remarked to said Weeks, that he did not know that he had a right to give such deed; that he had understood that said Knapp had previously deeded away said land ; said Weeks replied, that he had the possession, and if he could get a deed to make a show of title, he could give them a great deal of trouble; and that he was determined to hold on to the possession as long as he could; said Baldwin further says, that he has had frequent conversations with said Weeks, previous to the said last mentioned conversation, in all of which said Weeks spoke of the deed and expressed his desire to obtain one from him ; and such conversation was substantially the same in relation to Jaques’s title as the said first mentioned conversation.”</p> <p>James Dunn deposes and says, “that he had a conversation with the defendant, Samuel Weeks, concerning lands lying at or near Blossburg, Tioga county, Pennsylvania, in the spring of the year 1833, in the month of May, as he now thinks; that at the time of said conversation, Isaac Baldwin and William Dunn (assignees of said John H. Knapp, under the insolvent laws of the state of New? York) were, as be thinks, present; that they, the said Baldwin, Wil-, liam Dunn and said Weeks, called on him, said James Dunn, to' consult him in relation to the propriety of said assignees making a deed to said Weeks of said land ; that said Weeks seemed anxious to procure such deed for a small consideration; that he, said James Dunn, as he thinks, remarked to them, the said assignees and said Weeks, that said Knapp had previously, and before said assignees could have acquired any title to said lands, conveyed the same to a gentleman in the city of New York, and that he thought such deed from said assignees would be useless, and that he thought for other reasons that they could not legally give such deed; and in accordance with the advice of said James Dunn, said assignees declined giving such deed ; said Weeks, in said conversation, seemed to be well aware that said Knapp had previously conveyed, away said land, but supposed that said deed which he wished as above statpr] to procure might be of service to him by enabling him to hold possession or to redeem in some other way; and said James Dunn thinks that he had frequent conversations with said Weeks, concerning said land prior to the said conversations in the spring of 1833, the particulars of which he cannot now remember: and said James Dunn further says, that he drew the deed by which said Knapp and wife conveyed said lands to Asbury Crocheron, of the city of New York, in the year 1830, and was familiar with the title and situation of said property, and being well acquainted with said Weeks, they seldom or never met without having conversation concerning said lands; and this deponent, said Dunn, further says, that in the fall of the year 1833 (in September as he thinks), he had a conversation with said Weeks at Wellsboro’,Pennsylvania, concerning said lands; that said Weeks then remarked to him, that he, said Weeks, had received a letter from said Jaques on the subject of said property, and that he, said Weeks, had written said Jaques an answer, which he thought said Jaques would be puzzled to understand, as he had written it in a guarded and obscure manner, or words to that effect.”</p> <p>There was much other evidence given on this subject.</p> <p>The plaintiff requested the court to charge the jury upon the following points:</p> <p>That the plaintiff has shown a regular legal paper title from the commonwealth to himself for the land mentioned in the writ.</p> <p>Answer. This is correct.</p> <p>That if the jury believe that Samuel Weeks had actually express and positive notice of the claim of plaintiff, or Crocheron under whom the plaintiff claims, previous to the date of the deed from Knapp to him, the plaintiff is entitled to recover under all the facts disclosed in this cause.</p> <p>Answer. The court think otherwise.</p> <p>That if the jury believe the testimony of Isaac Baldwin, James Dunn and John Gray, the facts sworn to by them would, in point of law, amount to actual, express and positive notice.</p> <p>Answer. The jury will judge from all the evidence in the cause.</p> <p>That the deed from John H. Knapp to Asbury Crocheron of the 7th of April 1829, being regularly recorded,.was constructive notice to Samuel Weeks and Lewis Saynisch, and gives to the plaintiff a title superior to the defendants’, derived from John H. Knapp to said Weeks, of the 15th of April 1833.</p> <p>Answer. The court think otherwise, because the defeasance was not recorded.</p> <p>That if the jury believe that Lewis Saynisch had actual, positive and express notice of the sale from John H. Knapp to Asbury Crocheron before he purchased from Ellis Lewis under the deed from said Weeks to said Lewis, he has no defence under the title to the plaintiff’s claim.</p> <p>Answer. The court think otherwise.</p> <p>That the deed of Benjamin Gitchel to John W. Gurnsey, and by him transferred to Lewis Saynisch, under ihe facts disclosed in this cause conveys to said Saynisch no title that is superior to the plaintiff’s, and as an outstanding title purchased in since suit brought cannot avail the defendants.</p> <p>Answer. The court think otherwise.</p> <p>That if the jury believe all the evidence in this cause on the whole facts, the plaintiff is entitled to a verdict.</p> <p>Answer. The court t hink otherwise.</p> <p>The defendants requested the court to charge the jury upon the following points:</p> <p>That the conveyance from Knapp to Crocheron and the defeasance executed by Crocheron to Knapp are to be considered together as constituting a mortgage,</p> <p>Answer. This the court think is correct.</p> <p>That inasmuch as this mortgage has not been recorded as required by the act of assembly, it vests no interest in Crocheron so as to affect the rights of third persons; and that it is not a lien upon the land.</p> <p>Answer. This is correct.</p> <p>That if the jury believe that Knapp remained in notorious and exclusive possession of the premises from the time of the conveyance to Crocheron until the conveyance from him to Jaques, such possession was constructive notice to Jaques, and sufficient to put him. upon inquiry as to the claim of title by which Knapp held possession.</p> <p>Answer. The court think this is correot.</p> <p>That if the jury believe that Weeks had sold the land in question and delivered the possession to Saynisch before the commencement of this suit, and that Saynisch alone has continued in the possession, then the conversations and declarations made by Weeks cannot affect the rights of Saynisch.</p> <p>Answer. This the court think correct.</p> <p>That the conversation testified to by John Gray with Lewis Saynisch is not actual, positive and express notice to Saynisch of the claim of Crocheron or Jaques, so as to affect his (Saynisch’s) title.</p> <p>Answer. The court think this correct.</p> <p>Verdict and judgment for the defendants.</p> <p>The plaintiff below assigned for error the opinion of the court as contained in the bills of exception, and their instruction to the jury in answer to the points.</p>

<p>The county is liable for the expense of boarding and lodging a jury empanelled and kept together in á capital case by order of the court.</p>

William Willard for the use of James Husted against Benjamin C. Wickham and others. Scire facias from a justice of the peace against the defendants as the bail of George Daniels, a constable, to recover the amount of an execution for which he became liable.

<p>All contracts or promises depending upon a bet on the result of an election are null and void: ingenuity cannot invent any mode of evidencing such contract, so that it can be enforced by law.</p>

<p>The notice required by the act of the 21st of March 1772 to be given to a justice of the peace before he can be sued must state the plaintiff’s cause of action with reasonable precision ; and such notice is not bad because it states causes in language which might indicate an alternative.</p>

Samuel Hepburn and Baker Langcake trading in the name of Hepburn, Langcake & Co. against John Curts, Samuel Hepburn and James Hepburn trading in the name of Curts, Hepburn & Co. Summons in case.

<p>ERROR to the common pleats of Northumberland county.</p> <p>This was an action on the case by William Moritz against Baltzer Garnhart for the abduction of Rebecca M’Ewen per quod servitium amisit.</p> <p>The fact was clearly proved that Rebecca M’Ewen was the illegitimate child of Louisa Moritz, the plaintiff’s daughter; that it was then about ten years of age, and had lived in the family of its putative grandfather for five or six years, and was seduced away by the defendant.</p> <p>After the plaintiff had proved these facts and closed his evidence, the court below instructed the jury that the plaintiff had not shown, such title to the services of the child as entitled him to recovery in this suit, and directed the jury to find for the defendant.</p>

<p>ERROR to the common pleas of Bradford county.</p> <p>Replevin by Alexander Neely & Co. against Eli Gibbs for a yoke of oxen, a wagon, sled, logs, lumber, &c.: to which the defendant pleaded property in himself, &c.</p> <p>The plaintiffs gave in evidence a judgment in their favour against Jesse Carman, entered 22d March 1834, for 200 dollars; also another against the same person for 183 dollars 75 cents, entered 22d April 1834; also writs of fieri facias upon each of these judgments, issued on the 15th and 18th December 1834, and which were levied on the 30th of January 1835 upon the property in dispute, and returned on the 31st of January 1835 “not sold for want of time.” Writs of venditioni exponas issued 2d April 1835, which were returned by the sheriff “ that on the 7th of April 1835 he sold the property levied for 257 dollars 61 cents and appropriated the proceeds of the sale to the above executions.” The plaintiffs then proved, that they were the purchasers of the property' at the sheriff’s sale, and that the defendant had agreed that the property should be sold in five days’ notice, as it was. The defendant then gave in evidence a judgment in his favour against the same Jesse Carman : on the 25th of December 1834 the summons issued by a justice, and on the 10th of January 1835 judgment was entered by default for 92 dollars 16 cents : another judgment of the same plaintiff against the same defendant for 15 dollars, entered the same day. Executions issued upon each on the 1st of April 1835, upon which the constable levied on the same property of the defendants, and advertised the same for sale on the 7th of April 1835 at one o’clock. The sheriff’s sale was at twelve o’clock, and he sold the property to Neely & Co., the plaintiffs, and the constable sold at one o’clock to Gibbs, the defendant. Gibbs got possession of the property, and this suit was brought for it.</p> <p>The defendant alleged that the proceedings of Neely & Co., the plaintiffs, were in pursuance of a collusion between them and Car-man to defraud the creditors of the latter; that the judgments were in fact paid before the day of sale of the property; and that the sale was void, because but five days’ notice of it was given by the sheriff: and to support these grounds of defence he offered in evidence a deed from Carman to Neely, dated the 2d of April 1835 (the day when the writs oí venditioni exponas issued), for two hundred and fifty acres of land for the consideration of 100 dollars, with parol evidence that it was executed in the absence of Neely, and that no consideration passed ; also a deed dated 11th of April 1836, from Neely to Stephen H. Wakeman for one hundred and fifty acres of the same land for the consideration of 1000 dollars, and evidence that the residue of the land retained by Neely was of the value of 300 dollars.</p> <p>This evidence was objected to by the plaintiffs, and rejected by the court, who sealed a bill of exceptions.</p> <p>The defendant then offered to give in evidence the declarations of Carman in the absence of Neely, tending to show that, his object was so to fix his business with Neely, that his creditors would be defrauded.</p> <p>This was also objected to and rejected, and the court sealed a bill of exception.</p> <p>The court below was of opinion that there was nothing in the evidence which ought legally to bar the plaintiff’s recovery.</p>

Mason Dennison against Abel Fairchild. The only question in this case was, as to the admissibility of the depositions of Ephraim Fair-child and Mary Fairchild under the circumstances stated in the opinion of the court.

<p>ERROR to the common pleas of Bradford county.</p> <p>Abner Bowen against Robert Cooper. This was an action of trespass quare clausum fregit, which, involved a difference between the parties as to the location of the boundary line between their lands.</p> <p>It appeared in evidence, that a few years before this suit was brought the parties differed about their division line, and, by the advice of a friend, they agreed by parol to refer the subject to a surveyor as an arbitrator, by whose award they were to be bound. They also chose the chain carriers; and they all met upon the ground, and after an examination of the premises, the arbitrator rqn, fixed and marked the line on the ground. The plaintiff expressed his dissatisfaction with the result at the time. The court belo,w (Herrick, President) instructed the jury that the parol s.ub,mjssion and award were conclusive of the rights of the parties, although the arbitrator had based his award upon an erroneous principle.</p>

<p>A justice of the peace has not jurisdiction of an action arising on a judgment of a justice of the peace of another state.</p>

<p>APPEAL from the decree of the court of common pleas of Bradford county, appropriating the proceeds of the sale of the real estate of William Aclda.</p> <p>In 1835, Benjamin Ackla, seised in fee, but indebted by judgment, devised his land in severalty to his four sons. To one of them he devised thus: “to my son William Ackla and his heirs, I give and bequeath all the residue and remainder of my farm not heretofore disposed of, subject however to the maintenance of my beloved wife Hannah Ackla during her natural life, or to my said wife’s dower should she prefer it to her maintenance.” M. Hollenback had obtained a judgment against the devisor at February term 1833; and subsequently to his death Hiram Mix had obtained judgment against William, the devisee, at'December term 1836, on which the land was sold to Edward Overton, Hollenback’s attorney; and the money being in court was applied to Hollenback’s judgment. It did not appear that there were other incumbrances. From this decree there was an appeal by Octavius A. Holden who was the actual owner of Mix’s judgment.</p> <p>The cause was argued in this court by</p>

Caleb Carmalt against Samuel Platt. Ejectment for ten acres of land and a saw mill.

<p>Common law actions may be used to compel the specific performance of an agreement for the purchase and sale of lands, by means of a conditional verdict, or by so regulating its amount as to make performance less grievous than payment.</p> <p>In an action on a contract for the purchase and sale of land, when the plaintiff seeks to compel specific performance, evidence of the value of the land is pertinent to the issue.</p> <p>A declaration containing in substance all the essentials of a good cause of action is sufficient after verdict; although bad, if objection had been made upon the trial.</p>

This was an action by Isaac Bullock against James Wilcox, upon a promissory note in the following form. “For value received I promise to pay to William Simpson or bearer the sum of twelve dollars by the 20th of June next. Witness my hand, July 27th, 1832. James Wilcox.” When the note was given, William Simpson, Jun. executed a paper and delivered it to Wilcox, certifying what the note was given for, and that if the consideration should fail, the note should be void.

This was an amicable action entered in debt for the recovery of the amount of defendants’ bid ata sheriff’s sale of lands, and it was agreed thatthecourtshould give their opinion upon the following case stated, and that judgment be entered for the plaintiff or defendant as the court might direct, subject to a writ of error by either party the same as if judgment had been entered on the verdict of a jury.

<p>If the-magisterial character of the officer who takes the acknowledgement of a deed be not set out in the body of it, it may be supplied by proof aliunde. A copy of the justice’s commission, certified by the recorder of deeds, is competent evidence for that purpose.</p>

<p>A judgment against the estate of a decedent obtained after his death, will lose its lien by lapse of time, and a want of due diligence in its prosecution.</p>

<p>If an execution be immediately issued upon a judgment of a justice, and the money be made by a sale of personal property, it is then too late to enter an appeal or bail for stay of execution by the defendant, although the twenty days allowed by the sixth section of the act of 1810 have not expired: and the purchaser of the property has a legal right thereto.</p> <p>If one in the act of committing a trespass, by taking the personal property of another, receive his assent thereto, upon an agreement that the right to the property shall be determined by reference to a third person, trespass vi eb armis will not afterwards lie to recover the value of the property, although the right clearly be in the plaintiff,</p>

This was an action of ejectment by George Oyster and Sarah his wife, against Hugh Bellas, Esq. and Jacob Weiss for a tract of land. The cause was referred to arbitrators, who made a report in favour of the plaintiffs for the undivided three fourth parts of the land with 6 cents damages and 6 cents costs. From this report the defendants appealed, and paid all the costs.

John Snyder against Jacob Wagonseller. Appeal from the judgment of a justice. Jfarr. in assumpsit, for a horse sold and delivered. The plaintiff and defendant had wagered a horse upon the result of the election of Lycoming county.

Philip Hensel, guardian of the minor children of David Curry deceased, for the use of J. W. Curry, Robert Curry, and Rachel Curry, against Mary Watson. Scire facias on a mortgage to secure the payment of 500 dollars. David Curry, among other real estate, owned at the time of his death a lot of ground in Milton. He died intestate, leaving three minor children, J. Watson Curry, Robert Curry, and Rachel Curry intermarried with Robert Montgomery.

Adelia Eaton against Edwin Manning and John C. Rose. The plaintiff’s cause of action was thus stated: The defendants were attached to answer the plaintiff in a plea of trespass on the case, whereupon the plaintiff; by her attorney William Watkins, declares and says that the defendants, at Canton, in said county, heretofore, to wit on the 1st day of September 1835, in consideration that the plaintiff would sell and deliver to the defendants certain property, to wit, one yoke…

<p>Although the original domicil and marriage of the parties may have been ip Pennsylvania, her courts have no jurisdiction of a cause of divorce alleged to have been committed by the husband whilst his domioil was in another state.</p> <p>The law of the actual domicil at the time and place of the injury, is the rule in cases of divorce, for every thing but the original obligation of marriage.</p>

county. John Mewhorter against John Jamison. It is agreed that the following case stated be submitted to the court of common pleas of Westmoreland county, to be considered in the nature of a special verdict, with privilege to either party to prosecute a writ of error.

Gennett Porter against Rev. William Johnston, Francis Gosnel, Brice Gosnel and David Porter, Sen. This was an action of ejectmentfor four hundred and thirteen acres of land situated in Luzerne township in Fayette county. Judgment by default was entered against the two Gosnels (wiho were the tenants of Andrew Porter), and against David Porter. Johnston pleaded not guilty. September 10, 1833, referred by consent to William Davidson, Isaac Meason and Robert Clark.

WRIT OF ERROR to the common pleas of Erie county. William Fields against Andrew Scott. This was an action of debt upon a mortgage in common form. On the trial, the plaintiff offered to prove by parol, that there was no such bond given as that recited in the mortgage. The defendant objected to the evidence, because it went to contradict the mortgage: the objection was overruled and exception taken.

William Quiggle against Daniel Bemus. William Quiggle, who was plaintiff below, had brought two suits against the defendant, viz. an action of covenant, and an action on the case, to November term 1834.

HABEAS CORPUS for the body of William Phillips, committed for horse stealing. The prisoner was indicted at May sessions 1838, but had obtained a continuance for the absence of witnesses. He had been brought up again for trial at the June sessions, but was found to be labouring under small pox.

<p>Quare ? Whether a verdict and judgment on a traverse of liberum tenementum is conclusive of the title in ejectment.</p> <p>A verdict and judgment for the defendant in an action of trespass upon the general issue and traverse of liberum tenementum is not conclusive of the title in ejectment.</p>

William S. Rankin against John Mortimere and John Rodgers. This ejectment was brought by the plaintiff to recover the possession of three hundred and ninety-three acres of land. The plaintiff claims the land in dispute by a deed of conveyance from John Mortimere to him, dated the 1st of July 1833. The consideration expressed in the deed is 260 dollars.

WRIT OF ERROR to the common pleas of Jefferson county. ’ William Jack against William Clark, J. G. Clark and William. Rodgers. This was an action of trespass for taking and selling a law library, the property of the plaintiff. The libraiy at one time belonged to G. J. Durham, against whom L. B. Durham obtained a judgment and execution, and levied upon the library, and sold and purchased it in January 1835.

This was an action of replevin by Thomas Wilkins against Henry Vashbinder and Caleb Howard, to recover one hundred and fifty dozens of wheat and three hundred and fifty dozens of rye. On the 8th of October 1835 the plaintiff and defendant entered into an agreement for the purchase and sale of a tract of land for the consideration of 1000 dollars, by the terms of which the plaintiff was to get the deed and possession of the land on the 8th of April 1836.

Simeon Potter against James Fleming and I. Woodworth. This suit was brought partly on a note or agreement, of which the following is a copy: “ Conneaut., June 13th, 1836.

James Woods against John Farmere and Robert Davis. Ejectment for a part of lot No. 200 in the outlots of Alleghany. The original title to the land was in John Woods, Sen. the father of the plaintiff, and both parties claimed under him.

<p>ERROR to the common pleas of Mercer county.</p> <p>Sarah H. Porter against William S. Rankin. The case is fully stated in the opinion of the court.</p>

Daniel Rosenburger against Jacob Schull. Ejectment for a tract of land. The plaintiff gave in evidence and relied upon a treasurer’s sale of the land in dispute for taxes of 1812 as unseated, and showed that title to be regularly vested in him.

Samuel Carr against Mary Wallace. This was an action for a disturbance of the plaintiff’s right of common upon a piece of land in the town of Alleghany. The plaintiff’s right was founded upon his title to part of an inlot in the town, and an outlot. The facts of the case are fully stated in the opinion of the court.

<p>An absolute deed of conveyance, and separate agreement by tbe grantee to reconvey upon the payment of a certain sum of money at a certain time, is but one transaction, and the whole constitute a mortgage. But if the agreement by the vendee be subsequent and independent, that he will reconvev upon the repayment of the purchase money, it does not convert the first deed into a mortgage, nor in any way affect its validity.</p> <p>When the date of a deed and a recital contained in it are irreconcilable by the instrument itself, the party to it is not estopped from establishing the truth by parol evidence.</p>

<p>ERROR to the common pleas of Jllleghany county.</p> <p>This was an action of ejectment by William Nickle against Audley M’Farland, William Brown, William M’Cormick, Matthew Harbison and James Porter, for four hundred and fifty acres of land. The defendants appeared, and pleaded jointly not guilty, in 1832 the cause was tried, and a verdict and judgment for the defendants, which, upon a writ of error, was reversed, and a venire facias de novo awarded. The record was returned, and the cause continued until 1836, when the plaintiff suffered a nonsuit for not bringing his cause to trial. On the affidavit of the plaintiff, that Audley M’Farland was dead when the nonsuit was entered, he moved to take it off. This rule was discharged, on the ground that “ the nonsuit had taken place according to the practice and rules of the court, and afler more than ordinary delay and indulgence to the plaintiff.”</p> <p>On motion, however, that court granted a writ of error coram vobis to correct the error, if any in fact existed; and such writ was taken out on the 27th of March 1837.</p> <p>The error assigned was, “ that, by the record, it appears that the judgment aforesaid was given for the said Audley M’Farland and the four others (naming them) against the said William Nickle in the plea aforesaid, when, in truth and fact, the said Audley M’Far-land, in said plea named, before the rendering judgment against said William Nickle, and before the commencement of the said term at which judgment of nonsuit was rendered against him, viz., in the year 1833, at the county aforesaid, died; and that the said Audley M’Farland was, at the time of bringing said ejectment, and so continued at the time of his decease, in the exclusive possession of fifty or sixty acres of the tract of land for which said ejectment was brought, and left a widow and six children, all of which children were, at the lime said judgment was given, above the age of twenty-one years; which said widow and children continued in the exclusive possession of the said fifty or sixty acres of land from the time of the decease of said Audley M’Farland until the time said judgment was rendered, and have continued the same until the time of bringing this writ of error; and, therefore, in this there is manifest error.”</p> <p>A writ of scire facias ad audiendum errores issued, commanding the sheriff to summon the said William Brown, William M’Cormick, Matthew Harbison, James Porter, and the widow and heirs and the administrator or executors of Audley M’Farland. The sheriff returned it served on Brown, M’Cormick and Harbison, and on O. Metcalf, Esq.; nothing said of Porter or the representatives of M’Far-land.</p> <p>The defendants to the writ of error coram vobis appeared and pleaded by counsel in nullo est erratum. On argument, the court below (Dallas, President) affirmed the judgment.</p>

Harriet Chaplin against William'Srodes, John Finney and M. Wilson. Ejectment for part of lot No. 156 in the city of Pittsburgh. The plaintiff was the granddaughter of general John Neville, and was seised of lot No. 156 in the city, bounded by Water street, Ferry street, Front street and lot'No. 155, being sixty feet wide in Front street and Water street, by one hundred and sixty feet deep.

Sophia Shaeifer and Sarah Shaeifer by their next friend John Fritchman against Bernard M’Ginn. Ejectment for two lots in the Northern Liberties of Pittsburgh. The plaintiffs are two of three children, and heirs of Peter Sbaeffer deceased, who formerly resided in the Northern Liberties of Pittsburgh.

Samuel Thompson, being the owner of a house and lot in the city of Pittsburgh, on the 17th of February 1819 mortgaged the same to the executors of John Woods to secure the purchase money 3500 dollars. On the 13th of September 1819 he executed a second mortgage on the same premises to Patterson and Lambdin for 3000 dollars. On the 3d of November 1819 John Garro obtained a judgment against Samuel Thompson for 2000 dollars.

David Reynolds against James Hamilton surviving executor of Thomas Hamilton deceased. Summons case in assumpsit. Plea, non assumpsit infra sex annos. The cause of action did not accrue within six years; and to avoid this difficulty the plaintiff gave in evidence the will of Thomas Hamilton by which he made Thomas jVrConnell residuary legatee of his estate, and appointed him and the present defendant the executors.

Morgan Neville against the executors of George Williams deceased. This was a scire facias quare executio non.

<p>B. being1 in insolvent circumstances executed to M. an assignment, absolute upon its face, of a stock of goods and delivered possession. Upon proof of an agreement between the parties that M. should sell the goods, and after satisfying a debt due to himself that he should pay the residue to B., the transaction was held to be fraudulent and void.</p>

Maurice and William Wurtz for the use of William Meredith against Abraham Morison. Case stated in the nature of a special verdict. The above named plaintiff, on the 21st of November 1818, obtained a judgment by confession against John Coffroth in the above named court. A fieri facias issued upon the judgment returnable to August term 1820, No. 70, which was levied upon a house and half lot in the borough of Somerset.

This proceeding was commenced upon the petition of Collins Ragan, who set out in his petition that his father died intestate in Oc- , tober 1827, leaving a widow named Mary, and issue eight children, to wit: “Collins, Alexander (who had received his share of the estate), Joab, since deceased, leaving one child named Zacbariah, Elizabeth, married to John Sutton, James, Zachariab, Harriet, Nancy, and Polly, seised of a tract of land, &c.” The writ of partition issued on the…

<p>A, in taking possession of a tract of land to which he was entitled, ran and marked the boundary lines of his claim, as he supposed, upon the ground, but which in fact eiribraced about twelve acres of an adjoining survey upon which B had made an actual settlement, which was afterWards consummated by patent. A, with the knowledge of B, cleared a part of the twelve acres, and fenced and occupied it for more than twenty-one years : held, that, by the statute of limitations, he was entitled to hold not only the land which he had cleared and fenced, but also the woodland Which was embraced within the lines by which he had designated his claim.</p> <p>The formality or informality of a notice to take depositions depends upon the rule of court, without the production of which, an exception to the opinion of the court below on the subject will not be considered.</p>

Eli Abrams against Hamilton Stewart and Henry Chaffee. The defendant in error, who was plaintiff below, on the 16th of December 1833, to January term 1834, instituted an action of debt by capias against both defendants. This writ was returned, “ C. C. et B. B. as to Hamilton Stewart. JV. E. I. as to Henry Chaffee.” Special bail and appearance by attorney were duly entered for Hamilton Stewart.

<p>When public officers of a city corporation have located a highway, and fixed the boundaries up to which the owners of property may build, and they have so built and enjoyed their property on both sides of it for more than twenty-one years, and the public highway has been used in that place for the same length of time, it must be considered as the true location, which cannot be disturbed, to the prejudice of vested rights, by the subsequent acts or authority of the city corporation.</p> <p>Statutes of limitation run not against the public, nor will lapse of time change the nature of a nuisance.</p>

The Commonwealth against James Steel. Scire facias sur recognizance in the court of common pleas. Case stated as a special verdict. That on the 28th day of November 1835, a certain John Kirkland was charged, on suspicion, upon the oath of a certain Josiah Meanor, with stealing a grey gelding, the property of the said Josiah Meanor.

<p>An alien having purchased land in 1809, and died in 1812, without having been naturalized, and without having made the declaration required by the act of congress preparatory to becoming a citizen, his estate escheated to the commonwealth, who had power in 1814, without office found, to vest the same in the widow of the deceased alien.</p>

<p>ERROR to the district court of Alleghany county.</p> <p>William Richart against Thomas Scott. Acli.on on the case. The plaintiff was the lessee of a building on Market street, Pittsburgh, and the defendant had contracted to build a range of houses for Mr Brackenridge the owner of the adjoining lot. The wall of the plaintiff’s house was built on the line of partition between the lots. The defendant, excavated the ground on the lot of Mr Brackenridge, for the purpose of making cellars and laying the foundation of his wall near to the plaintiff’s house, in consequence of which the plaintiff’s kitchen fell down and was destroyed, together with his furniture. It appeared that the foundation wall of the plaintiff’s house had been built for more than twenty-one years, but that originally there had been a two story house upon it, and that, within that period another story had been added to it. It also appeared that the defendant had used ordinary care and diligence in the excavation for the building on the adjoining lot.</p> <p>The court below (Grier, President) was of opinion and so instructed the jury, that the plaintiff was not entitled to recover.</p>

Charles L. Cook and Raphael Schoyer trading in the name of Cook & Schoyer for the use of S. P. Darlington, S. Fahnestock and • George Wallace their assignees against John F. Wrenshall. The following case is stated by agreement of attorneys for the opinion of the court to be considered in the nature of a special verdict, and as such subject to a writ of error.

<p>ERROR to the common pleas of Alleghany county.</p> <p>Benjamin Weaver against William Colder, Silas Moore and James K. Moorehead.</p> <p>Covenant. The declaration set out the agreement between the parties, averred performance by the plaintiff, and set out a breach by defendants in not paying the last instalment of 1400 dollars due, as alleged, twelve months after the date of the articles (30th of November 1835). Defendants pleaded non est factum, covenants performed absque hoc, See., and set off Plaintiff replied no set off, &c.</p> <p>The plaintiff, to maintain the issue on his part, read two articles of agreement between the parties dated the 30th of November 1835, viz.</p> <p>Memorandum of an agreement entered into this 30th day of November 1835, by and between Benjamin Weaver of the city of Pittsburgh of the one part, and William Colder of Harrisburg, Silas Moore of Hollidaysburg and James K. Moorehead of Huntingdon of the other part, witnesseth, that the said Weaver agrees to sell to the said Colder, Moore and Moorehead six teams of horses, together with their necessary harness, blankets, halters, &c., and two good coaches now running in the People’s Line between Pittsburgh and Mount Pleasant. He will also use his influence to get exonerated from his bid for carrying the mail on the northern route from Harrisburg to Pittsburgh and have it let to the said Colder, Moore and Moorehead at their bid. He will also agree to transfer his right to and interest in the contract from Pittsburgh to Washington to the said Colder, Moore and Moorehead; and he engages further that he will not run nor be concerned directly nor indirectly in any stage line on the routes from Philadelphia to Pittsburgh, nor on the route from Washington to Pittsburgh, unless by tire consent of and in connexion with the said Colder, Moore and Moorehead, during the mail contracts now about to be entered into, viz. four years from the 1st day of January 1836.</p> <p>In consideration whereof (and provided the arrangement is made with the postoffice department for the said Weaver to get exonerated from any liabilities for not complying with his proposition for carrying the mail on the said northern route) the said Colder, Moore and Moorehead agree to pay the said Weaver 1400 dollars at the time of the delivery of said stock, which shall be between the 8th day of December and the 1st day of January next, 1400 dollars in six months after the said stock is delivered, and 1400 dollars in twelve months after the said delivery of stock, in full consideration of the same. The said Colder, Moore and Moorehead agree further to run the Washington stage (should they get the contract) to the house of the said Weaver in Pittsburgh, and also one of the Philadelphia stages to his house.</p> <p>It is further agreed between the said parties, that if there can be no arrangement made with the department, the said Colder, Moore and Moorehead agree and bind themselves to carry the mail on the northern route for the said Weaver until the 1st day of April next, for which they are to receive pay at the rate of the said Weaver’s bid.</p> <p>For the performance of the above, the parties bind themselves in the penal sum of 5000 dollars.</p> <p>Witness our han.cls and seals, this 30th day of November 1835.</p> <p>Witness, James Reeside, Benjamin Weaver, [l. s.]</p> <p>' James. Moorehead. William Colder, [l. s.]</p> <p>Silas Moore, [l. s.]</p> <p>James K. Moorehead, [l. s.]</p> <p>N.B. This contract not binding on the said Weaver unless the People’s Line Company refuse to take his stock when offered to them, which shall be done immediately, agreeably to a contract that exists between them.</p> <p>Received, January 2d, 1836, of Silas Moore, 1400 dollars, being the first payment due on stage stock per article of agreement with William Colder, Silas Moore and James K. Moorehead, and Benjamin Weaver.</p> <p>Benjamin Weaver.</p> <p>It is agreed by us as parties to the contract, whereas Benjamin Weaver has taken the contracts from Pittsburgh to Washington, Pennsylvania, and the contracts from Harrisburg to Alexandria, and from Alexandria to Pittsburgh, and he agrees to give up said contract, and we indemnify and keep said Weaver from damage he may be liable to in consequence of taking said contract.</p> <p>James Reeside, William Colder,</p> <p>James Moorehead. Silas I^Joore,</p> <p>James K. Moorehead.</p> <p>November 30th, 1835.</p> <p>There was much parol evidence given by each party on the subject, of the actual value of the stock sold.</p> <p>That part of the charge which gave rise to the points raised was as follows:</p> <p>Are there any acts or declarations of the parties which will aid the jury in reaching the intent of the parties to the contract? If there be, it is competent for the jury to take them into consideration in order to explain or render clear that which may be doubtful or obscure in the agreement; for this question dependent upon the intention of the parties is to be decided by the jury : to them the whole case is to be left.</p> <p>There is certainly no evidence showing an exoneration by the government of the plaintiff’s liability on account of his bid; and if, upon applying to the contract the rules of construction which the court has laid down, the jury should come to the conclusion that the intention of the parties was that this exoneration formed a part of the consideration, independent of and in addition to the transfer of the stock, then the value of the stock will become a subject of inquiry with the jury in order to ascertain how much more, if any thing, beyond the two instalments already paid by the defendants ought to be recorded against them. If, however, the minds of the jury are drawn to the same conclusion reached by the court, this question will not arise, and the plaintiff will be entitled to a verdict for the amount still unpaid upon the agreement.</p>

<p>ERROR to the common pleas of Alleghany county.</p> <p>Case stated in the nature of a special verdict. ■ William Dawson against James Gray. ^ The plaintiff, William Dawson, sued John Glime and John Hugtíes before a justice, who rendered judgment for the plaintiff for 43 dollars. Glime alone appealed. “John Glime and James Gray each tent, in 86 dollars on condition that John Glime do prosecute his appeal with effect, &c. to the next court of common pleas or surrender defendant to gaol of Alleghany county, &c.” The appeal was regularly entered to October term 1834. On the 14th of December 1835 the plaintiff obtained judgment against the defendant Glime, for want of a plea under the rules of court. 26th of December 1835, judgment liquidated at 47 dollars. 28th of December 1835 was the first day of the December term. A fieri facias was issued to March term 1836, which was returned “ nulla bona.” This writ of scire facias was issued to June term 1836.</p> <p>If upon these facts the court shall be of opinion that the plaintiff is entitled to recover, then judgment to be for the plaintiff for 86 dollars, (the amount of the recognizance) to be released upon payment of the debt, interest and costs in the original judgment against Glime the principal and costs on this scire facias, with stay of execution for thirty days from date of rendition of judgment. If the court shall be of the contrary opinion, then judgment to be for the defendant for costs, except those which defendant is to pay as herein before stated.</p> <p>Either party to have the right of a writ of error to the next supreme court, if sued out within thirty days after judgment rendered.</p> <p>The court below, (Dallas, President) rendered a judgment for the plaintiff.</p>

<p>An agent having the charge of unseated lands cannot become a purchaser thereof at a sale for taxes, without a previous explicit renunciation of the agency.</p> <p>A surplus bond given by the purchaser of unseated land sold for taxes must contain a specification of the land sold; otherwise it is vicious, and therefore the title in the purchaser is defective.</p>

Amos Pierce against Samuel Potter. Action on the case for refusing to enter satisfaction on a mortgage ; in which the following facts were agreed to be considered in the nature of a special verdict.

<p>APPEAL by the assignees from the decree of the court of common pleas of Jllleghany county confirming the report of auditors to whom was referred the account of William Bell, Jun., John Alexander and Thomas Stevenson, assignees of Samuel Stevenson.</p> <p>The subject of dispute arose out of the decree of the court upon certain credits claimed by appellants for disbursements made under the fourth article of the deed of assignment of Samuel Stevenson to them in trust for the benefit of creditors. It is as follows :</p> <p>“4. To pay all the creditors of the said Samuel Stevenson to whom James Gray may have become liable by acceptance, indorsement, assumption or otherwise, viz.”</p> <p>Then followed a list of those liabilities including eight drafts in favour of William Bell & Co., particularly described by their date, by whom drawn, by whom accepted, the payee and amounts. The assignees paid the whole eight drafts amounting to 4411 dollars 48 cents, for which they claimed a credit. The account was referred to auditors, before whom it was satisfactorily proved that two of the drafts mentioned in the assignment, amounting to 1006 dollars 88 cents, never existed, but were inserted in the deed of assignment by mistake; and that the assignees had paid them upon the faith of what appeared in the assignment, which they supposed was their only guide in settling the business entrusted to them.</p> <p>The only question then was, whether, under these circumstances, the accountants should be allowed a credit for the amount actually paid, or for the amount which was actually due. The auditor reported against the accountants, and the court below (Dallas, President) affirmed their report.</p>

James M’Vay against Rody Patterson. Replevin for a horse. The horse originally belonged to the defendant; he either strayed or was stolen from him, and was taken up as a stray and sold ; by virtue of which sale the plaintiff claimed him. The defendant gave evidence that the horse had been stolen from him ; and when he found him in the possession of the plaintiff he took him. The court was requested to charge the jury, 1.

This was an action of account-render by P. J. M’Creary, William Hanna and Mary his wife, and others heirs at law of Sarah M’Creary deceased against John Ross. Robert Johnston died seised of a tract of land, leaving issue four children, of whom Sarah M’Creary, the plaintiff’s mother, was one, and the defendant was married to another.

WRIT OF ERROR to the quarter sessions of Washington county. A bill of indictment was sent before the grand jury against John Clemens for perjury, upon which the prosecuting attorney had indorsed the name of Samuel Keenan as prosecutor. It was returned a “true bill.” The defendant was tried, and the jury found “the defendant not guilty and that the prosecutor pay the costs.” Whereupon the court sentenced Samuel Keenan to pay the costs.

L. Wood and A. Cady against Marshall Turner. This was an action on the case brought upon an agreement between the parties Vespecling the manufacture of pearlash. To maintain the issue on the part of the plaintiff, the deposition of Phineas Wood was given in evidence.

Robert M’Cord against Peter Bergautz. This ejectment was brought by the plaintiff to recover the possession of two hundred and twenty-five acres of land. The defendants have taken a special defence for one hundred acres of land as surveyed and run off on the northeast corner.

he common pleas of Beaver county. This was an action instituted before a justice of the peace by John Courtney against Alexander M’Conahy, a justice of the peace, to recover the penalty of 50 dollars for taking illegal fees. The following notice was served upon the defendant: “To Alexander M’Conahy, Esq. a justice of the peace of Beaver county, residing in Borough township.

William Cross against Thomas Wilson. This cause was referred under the compulsory arbitration act: the parties met, and the arbitrators were sworn and adjourned until a certain day. On that day the parties met and two of the arbitrators were absent, one of whom was out of the state. The defendant refused to choose others, to continue the cause, or make any other disposition of it.

This was an action on the case founded upon a due bill by Dennis M’Credy against Thomas Fey, in which the defendant pleaded payment and set off. After the cause had progressed so far as that the evidence had all been heard on both sides, the plaintiff offered to become nonsuit; to which the defendant objected, on the ground that he had pleaded a set off.

Joseph Baldridge, Hugh Kells, Benjamin Blythely, Joseph Coulter and James Mahon against Daniel Mershon. This was an action for money had and received, brought by the plaintiffs to recover from the defendant 219 dollars 44 cents, the amount of state appropriation which he had received as treasurer of the Youngstown school district in Westmoreland county.

Sarah Boylan against Samuel Hays and Walter P. Walker. Appeal from the judgment of a justice. By the transcript of the justice it appeared that he rendered a judgment in trespass for the defendant for costs, 22 dollars and 36 cents, on the 1st of Nóvember 1837, and that, the plaintiff entered an appeal. The transcript was filed the 27th November 1837. It did not appear what was the amount of the plaintiff’s claim, nor when the appeal was entered before the justice.

James M’Dowell against Christiana Dimond. This was an action of trover for certain articles of personal property. Daniel Dimond deceased by his will bequeathed as follows: “ It is my desire that, my children that are not married shall have of goods or money to the amount of those that are married, or to the amount of what I gave them at marriage for keeping house.” Of this will Christiana Dimond was the executrix.

Daniel Dobbins against the Commissioners of Erie county. Special verdict. The plaintiff is, and has been for the last eight years, an officer of the United States, to wit, captain in the United States revenue cutter service, and ever since his appointment has been in service, in command of the United States revenue cutter Erie, on the Erie station.

John C. Kelsey and wife against James Badger and others. The plaintiff gave in evidence a legal title to the land for which this ejectment was brought. The defendants relied upon a title regularly vested in them by a sale of the land for laxes. The original title was granted to John Pearson, a soldier. He died in 1782, having devised the same to Marcy Pearson.

This was an action of debt upon a sealed note by John Neel against Samuel Hamilton.

The Westmoreland Bank against John B. Williams, Robert Story and John Klingensmith. Scire facias post annum et diem. Plea, payment with leave, &c. Replication, non solvit. This scire facias was brought to revive a judgment which was originally had against J. B. Williams, Robert Story and the present defendant. ‘ That judgment was obtained upon a note discounted in the bank, in which Williams was the drawer, Story was first indorser, and defendant the second indorser.

Hays & Wick against Joseph Lynn. Appeal from the judgment of a justice. The defendant owed the plaintiffs a note for 11 dollars upon which a receipt was indorsed for 8 dollars 12| cents; and he also owed them an account, of 30 dollars 35 cents.

D. C. Stockton and others against D. and D. Shortle. The defendants in error, who were the plaintiffs below, brought an action of ejectment to February term 1834, for one hundred and seventy-five acres of land.

Henry Caufman, a poor person, came out of South Pluntingdon township into East Huntingdon township, and fell sick, and died before he could be removed to South Huntingdon, and notice given to the overseers of said township.

An action on the case may be maintained on an unexecuted parol contract for the purchase and sale of land. ERROR to the common pleas of Westmoreland county. Jacob Bartoner against Henry George. Action on the case for ¡damages on a parol contract for the sale of a lot of ground.

John Huey against Abraham Horbach. Action of covenant. When this cause was pending before arbitrators under the compulsory arbitration law, the parties entered into an agreement that they would abide by the award, upon condition that the defendant would do a certain act, in compliance with the terms of the contract upon which the action was founded. After the arbitrators made their award, the plaintiff entered an appeal.

<p>The demandant in an action of dower unde nihil hahet is entitled to recover damages from the tenant of the freehold for the time being, to be estimated from the time of the death of her husband, where he died seised, although the defendant may have been tenant but a short part of the time.</p>

Hastings obtained a judgment before a justice of the peace against Carr, and filed a transcript of it in the common pleas on the same day. Carr, within the twenty days, entered an appeal and filed it in court, upon which the plaintiff afterwards obtained judgment. In the meantime however Lolough obtained a judgment against Carr; and the question presented was, whether the transcript filed by blastings created a lien which continued until the real estate of Carr was sold.

William Figley against James Todd. This action originated before a justice of the peace, in which the plaintiff claimed to recover the price of a horse loaned by him to the defendant, and which, while in his possession, was kicked and died. The first question raised was, whether the justice had jurisdiction of the cause of action ? The court below (Bredin, President) ruled this point in favour of the plaintiff.

John B. M’Gee against William Campbell and Henry Smith. Trespass vi et cirmis for taking two horses. The facts of the case seemed to be, that Richard Wolverton had been the owner of the horses, and, being indebted, he made a pretended sale of them to the plaintiff, with the fraudulent intention of preventing his creditors from levying and selling them, and delivered the possession of them.

Henry Holdship against Robert Patterson. Amicable action on the case. Case stated by the court, which, by agreement of the parties, is to be considered as a special verdict. The defendant, Robert Patterson, on the 1st of January 1823, and for some years previous, was a partner in trade with one Jonathan H. Lambdin in the business of bookseller and stationer in this place (Pittsburgh).

Alfred M. Collins against John Gallaher. Ejectment for a tract, of land. John Collins, Sen., the father of the defendant, purchased the land in dispute from Griffith & Wallace, and by his last will and testament devised it to his son John, the defendant, and his three daughters as tenants in common. At the time of his death there was a balance of purchase money due to Griffith & Wallace of 640 dollars.

T. T. Richardson against Henry Henry. This was an action of trover. The facts of the case seemed to be: that the plaintiff’s horse strayed away, and came into the possession of the defendant; while in his possession, and after eight or ten days, he broke out of the inclosure, strayed off, and was taken up as an estray by another person, and upon regular proceedings had, was sold according to the provisions of the act of assembly.

This action originated by the following agreement between the parties. Abraham Granewalt, administrator of Alexander Mays deceased, against Joseph Gufifey, administrator of Samuel Mays deceased. Amicable action of trover to recover the value of the following goods and chattels, viz. on the schedule hereto annexed.

<p>ERROR t.o Alleghany county court of common pleas.</p> <p>Andrew Miller against John Irons. Case in assumpsit.</p> <p>“A. Miller, on his solemn oath, saith that the defendant is justly indebted to him in the süm of 169 dollars 94 cents for work, labour and materials furnished at the house he lives in, to the best of his knowledge and belief.” Sworn and subscribed, &c.</p> <p>“ The defendant, John Irons, being duly sworn, saith that he has a good defence, as he believes, to the greater part of the plaintiff’s claim in this case. There is something he admits to be due to the plaintiff for work, labour and service, but in his opinion it cannot exceed 55 dollars. This amount he is ready and willing to pay. He resists and denies the claim of the plaintiff for any thing beyond this sum,” Sworn and subscribed.</p> <p>The court below entered a judgment for the plaintiff for want of a sufficient affidavit of defence, under the following rules of court:</p> <p>Rule 1. In all actions of debt or assumpsit, when the plaintiff shall file with Vazprcecipe an affidavit stating the amount believed to be due by the defendant, he shall be entitled to judgment as for want of a plea, unless the defendant shall file an affidavit of defence with the plea.</p> <p>Rule 2.. If the defendant acknowledge a certain sum to be due, and offer to confess a judgment for the same, which is not accepted by the plaintiff, the defendant shall be entitled to recover subsequent costs from the plaintiff, unless he recover a greater sum than the amount offered.</p>

WRIT OF ERROR to Westmoreland county. James Holland and Elizabeth Biggert, administrators of- John Biggert deceased, against James Biggert and William M’llhenney.

<p>A copy of a will disposing of land in this state, made by a testator residing and afterwards dying in the state of Maryland, and placed on file and upon record in the office of registry of wills for Cecil county of that state, certified under the hand of the register of wills for the said county, and the seal of his office, accompanied by a certificate under the hand of E. C., chief judge of the orphan’s court of the said county, that the copy of the will is attested in due form and by the proper officer, with a certificate subjoined thereto from the clerk of the orphan’s court of the said county, under his hand and seal of office, that the said E. C., by whom the immediately preceding certificate was made and subscribed, was, at the time of the doing thereof, chief judge of the said orphan’s court, is admissible in evidence in ejectment to show title to the land thereby disposed of.</p> <p>A deed of conveyance made in Cecil county, state of Maryland, transferring a right to land lying within this state, certified by J. B. E., under his hand as associate judge of the said county court, second judicial district of the said state, to have been acknowledged before him by the grantors therein named, accompanied by a certificate of the clerk of the said county court, that the said J. B. E. was one of the associate judges of the said second judicial district of the state of Maryland, in and for the counties of Cecil, Kent, Q,ueen Anne and Talbot, at the time of taking such acknowledgement, is sufficient evidence of the execution of the deed to entitle it to be read in evidence.</p> <p>The execution of a letter of attorney by the owner, or his guardian, of land lying within this state, giving authority to lease and take care of it for him, certified by E. C. as chief judge of the second judicial district of the state of Maryland, under his hand, to have been proved before him by the subscribing witness thereto, accompanied, by a certificate from the clerk of Cecil county court, one of the counties composing the said district, that the said E. C., at the time of taking said probate, was chief judge of the said district, held sufficient evidence of the execution of the letter of attorney to make it admissible in evidence.</p> <p>A person who enters without title, or colour of it, upon an unseated tract of land held by another, under a title derived from the commonwealth, as an intruder, erects buildings thereon suitable for the accommodation of his family, which he removes to the same, making it his place of abode, and occupying the whole of the survey or tract as the owner thereof, by clearing and fencing more or less of it from year to year, as suits his ability or convenience, for the purpose of tillage, meadow pasture, &c., using the woodland thereof at the same time for the ordinary purposes that such part of a tract or survey is generally used and occupied for, in the section of the state where it lies, returning also the whole of the tract as his own to the assessors, and paying the taxes assessed thereon, acquires thereby an actual, exclusive and adverse possession of the whole tract or survey, including the woodland as well as that which he has cleared and inclosed, whereby the owner is ousted ; and if the latter does not enter or bring his action within twenty-one years from the time when the intruder first entered and took possession, he will be barred of his right thereto by the statute of limitations.</p> <p>But if, in taking possession of the land, or afterwards, within the twenty-on ears, the intruder declares or acknowledges that he is taking or holding tb ossession of the land for the owner or owners thereof, it cannot be deemed ac erse, and consequently the statute will form no bar to the owner’s recovery < he land.</p> <p>So if there be several owners, holding their respective rights to the land as tenants in common, and the attorney in fact of the guardian of some of them, being infants, before the statute has run its full course, calls upon the tenant in possession, making known to him the claim of the infants and their right to the land generally, and the tenant thereupon agrees to pay the taxes that shall be assessed upon the land, and to hold and keep the possession thereof, without committing any waste, for the benefit of the infants, such agreement will enure to the benefit of the other tenants in common, so that the whole of the land shall be recovered in ejectment brought by them all or their assigns.</p>

<p>It is a principal cause of challenge that the juror has been summoned as a witness by the prisoner.</p> <p>The commonwealth, though precluded from challenging peremptorily by the act of 1834, is not bound to assign a cause of challenge before the panel has been exhausted.</p>