Volume 7 — Watts & Sergeant's Pennsylvania Reports

<p>The reversioner of the freehold after a tenancy for years may maintain an action on the case against one who erects a dam on the adjacent ground, and backs the water of the stream into the plaintiff’s race.</p> <p>Case lies for a present injury to'the freehold; and the law implies damage from flooding the ground of another, though it be in the least possible degree, and without actual prejudice.</p>

<p>The recording Acts relate only to such instruments of writing as concern lands, tenements and hereditaments, and do not extend to a bill of sale or other writing respecting personal property.</p> <p>Trespass for seizing and carrying away goods does not lie by the owner, who at the time has leased them to a tenant; case is the proper remedy.</p>

<p>THIS was a writ of ei’ror to the Common Pleas of Philadelphia county, into which the case came by appeal from an alderman. The declaration was in assumpsit for $12 wages or salary of the plaintiff, George Sharswood, Esq., as a member of the County-Board, for four days’ attendance on its duties in pursuance of the resolution of the Legislature, passed the 27th March 1839. The defendants demurred to the declaration, and judgment was rendered for the plaintiff.</p> <p>The case was argued here by</p>

<p>Devise by a father to his son of a house and lot in fee simple; by a subsequent clause he gave it to trustees in fee in trust during the life of the son to pay over the moneys, &e., into his proper hands, or to such persons as he may appoint, and after his death to convey according to the son’s appointment by will, or, in default, to such as would be his heirs if he died intestate, with power to the trustees and son to alter the property and reinvest, provided that if the son should become so relieved from embarrassment as in the opinion of the trustees to render it expedient, they should convey to him in fee. Held, that the son had no estate in the land, legal or equitable, which could be seized and sold by execution on a judgment obtained against him.</p>

ERROR, to the Common Pleas of Philadelphia county, by which a feigned issue was directed, upon the report of an auditor that such a course was proper, to try the - right of Honoré Fournier, former assignee of Anthony Laussat, to receive out of the assigned estate of Laussat certain commissions and expenses incurred and paid by him for the trust estate, before his dismissal as assignee.

<p>In a suit by the sheriff against a purchaser at sheriff’s sale to recover damages for breach of the contract of sale, the writs of alias and plwies venditioni exponas are not evidence without the record of the judgment.</p> <p>But if they are admitted, the error is cured by afterwards reading the record in evidence.</p> <p>Parol evidence may be given of a written notice delivered to a party to pay money, and the contents thereof, without showing notice to produce the notice on the trial.</p> <p>Written conditions of sheriff’s sale held evidence where they were read aloud by the sheriff’s agent at the opening of the sale, and some evidence was given that the defendant was present before and during the sale, and there was proof that he signed a written acknowledgment that he had become the purchaser.</p> <p>On a resale, the sheriff is not bound to give the first purchaser notice of the time and place of the second sale; it is sufficient to notify him that unless he pays his money, the property will be resold.</p> <p>And qumre, whether even this is requisite.</p> <p>The sheriff ought to resell the property where the first purchaser fails in his contract; and the sheriff is the proper person to sue for the diminution of price that may happen by the resale.</p> <p>The damages in such case given by the jury cannot be complained of, if they do not exceed the difference between the first and second sale.</p>

<p>ERROR to the District Court of the city and county of Philadelphia, in which an ejectment was brought by Francis Patrick Kenrick against William Smick and Daniel Stokely, to recover a lot of ground situate on the west side of Second street, in Southwark, Philadelphia county. The defendants were tenants of the Second Presbyterian Church, who had their church building upon the adjoining lot. A verdict and judgment were rendered for the defendants.</p> <p>Both parties claimed title under Dr E. S. Ely, in whom it was formerly vested. The plaintiff purchased the lot at a public sale made by Dr Ely for. the price of $8000, and received a deed for it from him and his wife, dated 16th April 1836, and recorded 18th April 1836; the plaintiff paying $4000 in cash, and giving his bond secured by mortgage on the premises for the balance. The defendants contended that Dr Ely had previously conveyed it to them. From the oral evidence of Dr Ely and others, it appeared that Dr Ely purchased and paid for a part of the premises in June 1827, and another portion in May 1828, which together cost him $2300 and upwards. On the 6th May 1828 he executed the following instrument, which did not appear to have been acknowledged or recorded:</p> <p>Know all men by these presents, that I, Ezra Stiles Ely, D.D., of the city of Philadelphia, having lately purchased of the heirs of John Stille, Esq., deceased, a certain lot of land, and brick house thereon, situated in Southwark, in the county of Philadelphia, on South Second street, below Christian street; my title to which property being recorded in the office for recording deeds for the city and county of Philadelphia, in Deed Book G. W. R., No. 17, page 588, &c.; and having also purchased of Sarah M’Donald and others a certain lot of land, with a frame messuage thereon, adjoining the first described lot, the title to which last property is recorded as above, in Deed Book G. W. R., No. 33, page 235, &c., do hereby lease the same two lots of ground, with the houses thereon, and all the appurtenances of the same, unto the trustees of the Second Presbyterian Church in Southwark, and to their successors in office for ever, on the following conditions, namely, that the said trustees shall now and for ever hereafter, pay me semi-annually, and my heirs, executors and administrators after my decease, the sum of $69.90, lawful money of the United States, on the 6th day of November and on the 6th day of May in each year, besides paying all manner ortaxes and ground-rents, and other charges, which may have accrued, or shall hereafter accrue, on said property; but if said trustees shall become indebted to me or my heirs for the amount of $139.80, and shall, for three months after the said sum has become due, neglect to pay the same, then this instrument, after ten days’ notice to said trustees to this effect, given by me or my heirs in writing, shall become null and void. I do also hereby empower and authorize said trustees to lease said property, in any manner not inconsistent with the above conditions, for any term of time; and to demand, sue for, collect and receive all rents or other dues which have become due to me, or shall hereafter accrue, so long as this lease shall be and continue in force.</p> <p>In witness whereof I have hereunto set my hand and seal, this 6th day of May 1828.</p> <p>E. S. Ely. [l. s.j</p> <p>Signed, sealed and delivered in presence of us,</p> <p>) j</p> <p>Susanna Mitchell,</p> <p>Henrietta Burden.</p> <p>Received May 2d 1829, of E. S. Ely, $300, being in full the sum paid by the trustees of the Second Church in Southwark, towards the lot of ground in Southwark, purchased by the said Ely of the heirs of John Stille, Esq., deceased; so that the said Ely has now paid the whole purchase money.</p> <p>$300. Jacob Mitchell,</p> <p>President of the Board of Trustees of the Second Church of Southwark, and in behalf of the same.</p> <p>In July 1829, Dr Ely paid towards the erection of a church on the lots about $2575, and on the 21st July 1829 the following instrument was executed by him, and acknowledged on the 21st June 1832, and recorded on the 13th April 1836:</p> <p>Know all men by these presents, that I, Ezra Stiles Ely, D.D., of the city of Philadelphia, and State of Pennsylvania, having lately purchased of the heirs of John Stille, deceased, a certain lot of land and brick house thereon, situated in Southwark, in the county of Philadelphia, on South Second street, below Christian street, my title to which property has been recorded in the office for recording deeds for the city and county of Philadelphia, in Deed Book G. W. R., No. 17, page 588, «fee.; and having also purchased of Sarah M’Dowell and others a certain lot of land, with a frame messuage thereon, adjoining the first described lot on the north side; the title to which last property is recorded as above, in Deed Book G. W. R., No. 22, page 235, &c.; and having moreover, in addition to all the purchase money of said lots, amounting to $2330, paid towards the erection and completion of a brick church on said premises, the sum of $2525;</p> <p>Do hereby lease the same two lots, together with the said brick church, and all other buildings thereon, with the appurtenances of the same, unto the trustees of the Second Presbyterian Church in Southwark, and to their successors in office for ever, on the following conditions, viz., that the said trustees shall for ever hereafter pay me semi-annually, or to my heirs, executors, administrators or assigns, the sum of $145.65, lawful money of the United States, on the 6th day of November and on the 6th day of May, in the present and every future year, besides paying all and all manner of taxes and ground-rents, repairs and other charges, which may have accrued or shall hereafter accrue on said property; but if said trustees shall become indebted to me or my heirs or assigns for the amount of $291.30, and shall for three months after said sum has become due neglect to pay the same, then this instrument, after ten days’ written notice left with the president or secretary of said trustees to this effect, and signed by me, my legal representative or assigns, shall become null and void.</p> <p>I do moreover hereby empower and authorize said trustees to lease said property, or any part of the same, in any manner not inconsistent with the above conditions, for any term of time, and to demand, sue for, collect and receive all rents or other dues which have become due to me, or shall hereafter accrue from said property, so long as this lease shall be and continue in force. In witness whereof I have hereunto set my hand and seal, this 21st day of July 1829.</p> <p>E. S. Ely. [l. s.]</p> <p>Signed, sealed and delivered in presence of us, •</p> <p>) j</p> <p>Mary Lippincott,</p> <p>Samuel M’Clellan.</p> <p>N. B. Of the interest to become due on the 6th November next on the foregoing lease, $25.25 are to be deducted, and on account of a former lease merged in this, and moneys which have been paid since the 6th May last, the interest to be paid next November will be $120.40, and after that semi-annually $145.65.</p> <p>E. S. Ely.</p> <p>On the 1st January 1830 he placed the following memorandum at the foot of the last instrument, which, with its acknowledgment, was recorded on the 15th April 1836:</p> <p>Philadelphia, January l, 1830.</p> <p>I hereby for myself, my heirs and assigns, engage with the trustees of the Second Presbyterian Church of Southwark, that if, on or before the 1st day of January 1836, they shall pay me or my said heirs the principal of the purchase money mentioned in the foregoing lease, together with all the rent and the expenses accruing on the said property, that I or my heirs shall and will then as soon as said payments have been made, give them a deed in fee-simple of the whole of the aforesaid leased property. Witness my hand and seal, the day of the date above written.</p> <p>E. S. Ely. [l. s.]</p> <p>R. Willing, Jun.</p> <p> Philadelphia, ss. </p> <p>Before me, one of the aldermen of the city of Philadelphia, personally appeared the above-named Ezra Stiles Ely, and acknowledged the foregoing lease and the subjoined bond to be his free will, act and deed, and desired that the same might be recorded as such. Witness my hand and seal, the 21st day of June 1832.</p> <p>R. Willing, Jun., Alderman, [l. s.]</p> <p>A large mass of parol and documentary evidence was given on the trial, and various subjects of contest arose and were subjects of charge by the court below; whether the plaintiff was a purchaser for a valuable consideration without notice, which the defendants contended he was not, because the instrument of the 21st July 1829 was recorded three days before the deed to the plaintiff, and the defendants were in possession of the building and premises at the time of the sale at auction to the plaintiff, which the plaintiff denied, and alleged the defendants had abandoned the property; whether the defendants were not estopped from setting up their title by having stood by and not given notice at the sale by public auction and advertisements. The plaintiff also alleged that the instrument of the 6th May 1828 was the only title the defendants had, and that not being recorded there was no notice; that if the instruments were conveyances, this instrument would not merge in the second instrument of 21st July 1829, and, not being recorded, had no operation against the plaintiff’s deed. But the court charged that it was to be regarded, as Ur Ely regarded it in his deposition, as having been merged in the paper of 21st July 1829. It was also contended by the defendants, and the court so charged, that the instrument of 21st July 1829 was the conveyance of a fee-simple subject to a ground-rent; that though notice was several times given by Dr Ely of arrears of ground-rent and of a forfeiture, yet that could not take place without a re-entry, which he did not make, or that he should at least have not left it equivocal whether he intended a forfeiture, nor have waived it by subsequent acts; and it was left to the jury to determine whether, independently of the legal construction of the instruments, the defendants had by their consent and acts (of which there was a great deal of evidence) admitted Dr Ely’s right to sell to raise money to repay his advances, and consented to and encouraged his proceedings.</p> <p>The case was argued at December term 1843 on these points</p> <p>and E. Spencer Miller, contra. A reargument was directed by this court on the question whether the instrument of the 21st July 1829 was a conveyance, or only an executory agreement for a conveyance.</p> <p>to show that it was an executory agreement, cited Jackson v. Myers, (3 Johns. 389); Jackson v. Clark, (lb. 424); 1 Lev. 55; JVoy 128; Goodtitle v. Way, (1 T. R. 735); Doe v. Clare, (2 T. R. 739); Stouffer v. Coleman, (1 Yeates 393); JVeave v. Jenkins, (2 Yeates 107); Sherman v. Dill, (4 lb. 295).</p> <p>contended it was a conveyance in fee on ground-rent with a clause of redemption, and referred to Krider v. Lafferty, (1 Whart. 302) ; Jackson v. Kisselbrack, (10 Johns. 336) ; 1 Chit. Con. 313; 1 M. Sp Scott 521; Watson v. O’Hem, (6 Watts 362); Woodfall’s Land. Sp Ten., where the cases are collected.</p>

APPEAL of Elizabeth H. Lukens from the decree of the Orphans’ Court of Montgomery county. On the 27th August 1842, Elizabeth H. Lukens by petition to that court prayed a citation to her late guardian James Paul to settle his accounts.

The following case was stated for the opinion of the court at JVisi Prius, and argued in February 1844 before Mr Justice Kennedy, in which Catharine Fisher was plaintiff, and Casper Herbell and David Emerick, executors of Anna Quick, deceased, defendants.

<p>ERROR to the Common Pleas of Northampton county.</p> <p>This was a feigned issue under the Act of 16th June 1836, ordered by the court at the request of George Troxsell, Jun., the plaintiff below, for the purpose of trying the rights of Conrad Flick and Troxsell to certain moneys in court arising from sheriff’s sale of the goods of Jacob Strickland.</p> <p>The plaintiff gave in evidence a judgment in favour of George Troxsell, Jun., against Jacob Strickland, in the Common Pleas of Northampton county, No. 164, August term 1842, entered 21st September 1842 for $859.98 on single bill and warrant of attorney of same date. Fieri facias on this judgment issued 21st September 1842, No. 19, November term 1842, came to hand same day; levy endorsed of stage-coaches, horses, wagons, harness and household furniture; returned, “ levied as per inventory and sold for $508. 23.” On the fieri facias was also endorsed a deputation to Elijah Hagerman to secure the goods levied on, dated October 28th 1842, and a credit by order of plaintiff, September 26th 1842, for $135.</p> <p>The defendant gave in evidence a judgment in favour of Conrad Flick against Jacob Strickland in the Common Pleas of Northampton county, No. 209, August term 1842, entered 26th October 1842 on penal bill 25th October 1842. Fieri facias issued for the real debt $274.27 on this judgment 26th October 1842, No. 25, November term 1842; came to hand same day; returned,“levied subject to a prior levy.”</p> <p>The defendant then called the sheriff, and offered to prove by him the plaintiff’s instructions to him delaying the execution of the fieri facias in the case of Troxsell v. Strickland, and Troxsell’s statements to the witness that he did not wish defendant sold out, but that he desired him to go on with his business as before, and that the sheriff should leave the goods with defendant without security; and that whilst the prior execution was thus delayed under those instructions, the second execution was placed in his hands with orders to proceed and sell immediately, which be accordingly did with both executions in his hands, and levied at the same time; to.which evidence the plaintiff objected, and the court overruled the offer and sealed an exception.</p> <p>The defendant then offered to call witnesses to prove an arrangement made by Troxsell with Strickland, and other conduct of Troxsell, evincing his intention not to have a sale of the property levied upon; to which evidence the plaintiff objected, and the court rejected it and sealed an exception.</p> <p>The rejection of the evidence mentioned in the bills of exception was the subject of the errors assigned.</p> <p>cited Eberle v. Mayer, (1 Rawle 366); Commonwealth v. Stremback, (3 Rawle 344); Snyder v. Kunltleman, (3 P. R. 487); Hickman v. Caldwell, (4 Rawle 378); Weir v. Hale, (3 Watts ¿y Serg. 285); Corlies v. Stanbridge, (5 Rawle 286); Howell v. Mkyn, (2 Rawle 282).</p> <p>relied on Mentz v. Hamman, (5 Whari. 153), and referred to Kleckner v. Lehigh Co., (6 Whart. 66); Hiller v. Roberts, (13 Serg. Rawle 64) ; Blythe v. Richards, (10 lb. 266); Hall v. Galbraith, (8 Watts 220); Watson on Sher. 72, 127.</p>

<p>These considerations persuade us that we are incompetent to execute the power proposed; and the more so, as the matter touches the lives of the accused. Should they happen to be executed under a sentence of the court of Huntingdon county, it might give rise to a painful doubt in the mind of every one who had acted under the statute, of the legality of his interference. But there is no necessity to raise such a doubt. All that is required is to direct a Judge of the Supreme Court to hold a Court of Oyer and Terminer, to receive a certified copy of the record from the County Court, and, the motions being disposed of, to remit the record to the court of Huntingdon county for trial, or to the court of Cambria county for execution, as the case may require.”</p>

A verdict and judgment were rendered for the defendants in the court below. This writ issued on the 18th August 1841. On the trial, the plaintiffs gave in evidence a mortgage in 1810 from Abraham Horn to George Levers, acknowledged April 6th 1810, and recorded April 11th 1810..

The plaintiff, William Y. Boyle, obtained a judgment in that court against Robert Woods & Brother, in September 1842, for $139.41. He then issued an attachment in execution and levied it in the hands of The Franklin Fire Insurance Company. They, answered interrogatories and pleaded nulla bona, and on the trial a verdict and judgment were given in their favour.

02, the proceeds of sale of the real estate of James D. Shaw by the sheriff under a writ of venditioni exponas to June term .1842. Out of this fund Thomas Matlack claimed the amount of a mortgage for $800, recorded March 9th 1841, and James Griffith the amount of a judgment for $1000, obtained March 15th 1841.

This was a scire facias issued by John Walker against Robert Simpson on a mortgage for $2000, dated April 1st 1839, and payable on the 1st April 1840. The dispute was as to certain credits of interest endorsed on the bond accompanying the mortgage. One of these endorsements was a receipt for $60 dated April 1st 1841, the other a receipt for $60 dated April 19th 1841, both signed by Beulah Walker, wife of the plaintiff.

This was an action of assumpsit brought by Richard D.Wood and others, partners under the firm of Wood & Abbott, against The Commercial Bank of Cincinnati, in which a verdict and judgment passed for the plaintiffs below.

This was an action of ejectment brought by Ishmael Heald by his guardian against Jonathan Langley, to recover 44 acres of land in Chester county. The following facts were agreed upon by the parties to be considered in the nature of a special verdict.

THIS was an appeal from a decree of the Common Pleas of Chester county on the distribution of moneys raised by sheriff’s sale, in which it was agreed that the following statement of facts, upon which the question in the, case arose and the decree of the Court of Common Pleas was made, be certified to this court: On the 5th July 1835, Jesse Coates was the owner in fee-simple of several tracts of land in Chester county, on which there were some incumbrances by judgments -and…

<p>An injunction will not be granted to restrain an individual from exercising the office of school director, who has accepted the office of commissioner of an incorporated district. The question of his right to exercise the duties of the office must be tried by proceedings on a writ of quo warranto, which affords an ample legal remedy. '</p> <p>Equity has ho jurisdiction with regard to the election or amotion of corporators, nor in case of a public officer defacto of a municipal character.</p> <p>The English chancery can by injunction restrain the commission of acts contrary to equity. The limited chancery powers of the courts of Pennsylvania Extend <*ily 'to prevent acts contrary to law.</p>

<p>The relator on a writ of habeas corpus had been bound over by the Court of Quarter Sessions during its session to answer thereat a charge of misdemeanor, &c. Held, that the case came under the provisions of the 6th section of the Act of February 8th 1785, and the writ, if returnable at all, must be to the Judges of the Court of Quarter Sessions, who alone have jurisdiction until after the end of the term or session.</p>

<p>Though a former verdict in ejectment between the same parties ought not as a general rule to control the verdict in another, yet if the latter is delayed for more than 20 years after the facts occurred, the former verdict ought not to be disturbed.</p> <p>One reduced to such extreme debility, by intoxication as to be unable to rise or sit up in bed unless supported, and to hold a pen or make a mark unless the pen and hand are held for him, can no more execute a conveyance of his property than if intoxicated.</p> <p>Where ejectment for the whole of a tract of land was brought by a guardian on behalf of his ward, who claimed it as conveyed to his father by his grandfather, and the verdict and judgment were for the defendant, and on the application of the guardian and one of the five heirs of the grandfather, the Orphans’ Court decreed a sale, because it could not be divided, and the tract was sold to a purchaser, and the guardian received the minor’s share of the purchase money and paid the balance, deducting expenses of maintenance, to the minor on his arrival at 21, it was held, that the minor was concluded from contesting the title of the purchaser.</p>

<p>The Act of the 18th April 1843 authorizing the election of canal commissioners is constitutional and valid.</p>

Charles and Jesse Slingluff against George W. M’Clelland, sheriff. This was an action on the case, in which the plaintiffs declared for money had and received, and the defendant pleaded non assumpsit.

George Treaster against Peter Fleisher. This was an action of ejectment for 200 acres of land. The plaintiff claimed under a warrant dated the 17th October 1831, regularly executed and returned; the defendant, under a warrant dated 30th July 1794, also regularly executed and returned, but it was a matter of fact tried in the cause, whether the defendant’s warrant covered the land in dispute.

This was an action on the case in assumpsit brought in the name of “ Mary M’Ghee and others, guardians of the minor children of John M’Ghee deceased, against James Carskadden.” On the trial of the cause, the court permitted the plaintiff to amend the style of his action by striking out the word “ others,” and inserting the name of “ Thomas Huston,” and to make a corresponding amendment of his declaration.

The Commonwealth for the use of John Harper, assignee of John M. Woodburn, against John Fox, Esq. This was an action of debt upon the official bond of the defendant as high sheriff of Dauphin county.

<p>The assignor of a chose-in-aetion is not a competent witness for the plaintiff in aa action to recover the claim assigned.</p> <p>If a promise be made to pay the debt of another if the creditor will take the debtor’s note payable at a distant day, the promisor must have notice that the proposition is acceded to, and the note accepted, otherwise he will not be liable on his guaranty.</p>

<p>ERROR to the Common Pleas of Huntingdon county.</p> <p>Philip Bridenbach against James Steel, prothonotary. Feigned issue. The personal property of A. R. and C. E. Crane was sold by the sheriff, and the money brought into court for appropriation ; the court referred the subject to an auditor, who made a report. This was excepted to by several of the creditors, which gave rise to the necessity for an issue to try certain facts alleged and denied. Philip Bridenbach was made the plaintiff, and the prothonotary, for the use of such of the creditors who were interested in the question to be tried, was made defendant. The issue was tried, and a verdict and judgment were rendered for the plaintiff; whereupon a writ of error was sued out by Samuel Iset, one of the creditors. In consequence of the report of the auditor allowing the claim of Philip Bridenbach, a large portion of that of Samuel Iset was not covered by the money in court; but it did not appear that he had filed any exception to the report. The defendant in error therefore moved to quash the writ, which was argued by</p>

<p>An administrator cannot become the purchaser of real estate, directly or indirectly, at a sale made by himself in pursuance of an order of the Orphans’ Court.</p>

<p>If the owner of a tract of land purchase a small piece of land adjoining it for the purpose of using it in connection with the larger tract, he thereby makes it a part of the whole; and a levy and sale by the sheriff of the tract of land, without any description of the part purchased, will convey the whole to the purchaser.</p> <p>If a small piece of land be purchased with the intention of overflowing it by the erection of a dam, and it remains in the enclosure of the vendor for a period of more than SI years, without any otheT positive act of adverse possession, the non-user of the vendee will not deprive him of his title and vest it in the vendor by force of the Statute of Limitations.</p>

<p>One who becomes interested in 'the prosecution and recovery of a claim afte* suit brought, and divests himself of that interest before the trial of the cause,ii a competent witness.</p> <p>If the act of an attorney be set up as a defence against the claim of his client his contingent liability to his own client by reason of that act, is not sufficient if render him an incompetent witness.</p> <p>Lands cannot be levied or sold by virtue of a writ of execution in the natut» of a fieri facias issued out of the Orphans’ Court in pursuance of the 13th se8 tion of the Act of 29th March 1832, but personal property only.</p>

WRIT OF ERROR to the District Court of Lancaster county. This was an action of debt upon a recognisance in the Orphans’ Court by Champneys, President of the Orphans’ Court, áse., for the use of Emanuel C. Reigart, against Christian Shuman, surviving co-cognisor, áse.

Thomas Curtis against Henry Etter. This was an action of debt, in which the plaintiff declared upon a judgment obtained by the plaintiff against the defendant before a justice of the peace in the county of Lancaster. The defendant pleaded that he was an infant when he confessed the said judgment.

Anthony Fricker and others against John Green. This was a scire facias upon a mortgage given to secure the purchase money of real estate sold by the plaintiffs to the defendant. The suit was brought to August term 1840.

This was an action of ejectment by Jacob Dock and others against William Hart and others for a.tract of land. The court below thus stated the facts of the case and charged the jury; — “ The plaintiffs trace their title through a parol contract, or an alleged parol contract, made between Judge Green and his brother Richard Green for an exchange of property; the plaintiffs object to the charge of the court on the law as laid down to the jury.

This was an action of debt by the Commonwealth for the use of Charles Sprengle against George Zeigler, Jacob Zeigler, Ephraim Martin, and David Zeigler, founded on the official bond of George and Jacob Zeigler, administrators de bonis non cum testamento annexo of Daniel Sprenkle, wherein the other two defendants were sureties. The defendants pleaded covenants performed and nil debent..

James & Pennington against James Allison. Case in assumpsit founded on book-account. The defendant pleaded non assumpsit infra sex annos, and upon this plea the cause was tried. The plaintiff’s account amounted to $886.00, and he gave the defendant credit for $789.54, and claimed the balance.

This was an action of debt by the Commonwealth of Pennsylvania for the use of David R. Reynolds against William Wilson and others, founded upon the official recognizance of James Gibboney, late sheriff, the defendants having been his sureties. The recognizance was dated the 18th October 1833; it was approved by the governor on the 25th October 1833; on the same day the commission issued to the sheriff, and this suit was brought on the 25th October 1838.

<p>Upon a rule to arbitrate, if but one party appear to choose the arbitrators, the number must be fixed by the prothonotary; if fixed by the prothonotary and the party, it is fatal to the award.</p>

John H. Shoenberger and George K. Shoenberger against John Lyon, Anthony Shorb, David Stewart, William C. Stewart, and George Riter.

Robert Culbertson and others against Lemuel G. Duly and others. Ejectment for a house and lot, in which the parties agreed to the following facts as a special verdict: Robert M’Kean, of Shippensburg, the husband of Patience M’Kean, under whom the plaintiffs claim, died the 2d day of July 1836, having first made this will, dated 25th February 1836. “ In the name of God, Amen.

Robert Wilson against the Commissioners of Huntingdon county, owners or reputed owners, and Robert Still, surviving James Still, contractors. This was a scire facias upon a mechanic’s lien, in which the jury found a special verdict which raised two questions :— First. Has not the plaintiff misconceived his form of action by filing his lien against “The Commissioners of Huntingdon county,” ■instead of “ The County of Huntingdon ?” Second.

On the 27th November 1830, John Mehaffy obtained a judgment against John Harman for $700, with interest from the 1st April 1831. On the 7th December 1835, this judgment was revived by the agreement of the parties for $700, with interest from the 27th November 1832.

Watson Jenks against Israel Fritz. This was a judgment entered upon a warrant of attorney, which was opened by the court, and defendant let into a defence upon the merits.

This was an action of ejectment by The Farmers’ and Mechanics’ Bank against John Harper and Sarah Miller for a tract of land. The plaintiff claimed under a warrant to Moses Foulk, dated 24th March 1786, and survey for 424 acres 22 perches, made 20th December 1794, and upon a sheriff’s sale to the plaintiff upon a judgment in their favour against George Ege, No. 257, April term 1820, and regularly revived by subsequent writs of scire facias.

Daniel and Mary Hastings against William Wagner. This was an action of ejectment for a tract of land.

Watkins, Dungan & Rust against Daniel Shaffer and Washington Shaffer. This was a proceeding under the Act of 16th June 1836, relating to executions. The plaintiffs obtained a judgment against Daniel Shaffer, upon which a fieri facias and attachment were issued, which was returned, served upon Washington Shaffer as garnishee.

This was an action on the case brought for the recovery of a legacy by Henry Brookhart against the executors of George Small, deceased, in which the parties agreed to the following facts to be considered in the nature of a special verdict:— On the 30th day of April 1813, Peter Eibe being the owner of the two plantations in his will described, and also possessed of a large personal estate, made his will in which he disposes of his property as follows: — “And respecting the…

Evan Green, administrator of Preston B. Elder, for the use of the Columbia Bank and Bridge Co., against Henry Haldeman.

The Directors of the Poor and of the house of employment for the county of York presented a petition to the court for the appointment of a jury to assess the amount of damages done to their lands by reason of the location and construction of the Wrights-ville, York and Gettysburg Rail-road through the same. The jury were summoned by the sheriff, met, viewed the premises, and assessed the damages at $1280.25.

Eliphalet L. Benedict against John Montgomery and others. This was an action of ejectment for a house and lot in Lewistown, in which both parties claimed under Anthony Young.

<p>A person found by inquisition to be an habitual drunkard, is not thereby deprived of his power to perform the office of executor or administrator.</p>

This was an action of ejectment by John Silverthorn and others against Samuel O’Keson. After the testimony in.the cause was given, there was no title shown to be in two of the six plaintiffs ; whereupon those two suffered a nonsuit, and the trial went on as to the other four plaintiffs.

Robert Wallace against John Scott ana George Scott. Ejectment for a tract of land. The plaintiff claimed under a title made by the treasurer in pursuance of a regular assessment of taxes for the years 1828-9 and ’30. The ground of defence was, that the land was not unseated; and in support of this, the proof was by a witness “ that he entered upon the land in 1828, and chopped timber, and made a beginning of a clearing.

Thomas Jackson and James Entriken, assignees of Jonathan Leslie, against Andrew P. Wilson and Joseph Jones.

John C. Bishop died intestate, leaving a widow and one child. The child, by his guardian, presented a petition for a writ of partition and valuation. The inquest found and returned to the court that as there was but one heir, they had not divided the property, but valued the whole together.

This was an action of debt by the Commonwealth for the use of Daniel Good, administrator of Emanuel Herr deceased, against Henry Herr and Fanny his wife, brought upon the defendants7 recognizance in the Orphans’ Court, acknowledged and entered into for the use of all persons interested in the real estate of Samuel Herr deceased, late of Strasburg township, on- the 23d day of November 1837, when Fanny Herr, the conusor, accepted a purpart of the real estate of the deceased,…

This was an action of ejectment for a tract of land by George Mitchell against Charles Bratton and James Bratton. The case is sufficiently stated by the Chief Justice, who delivered the opinion of the court.

P. C. Sedgwick, Esq. obtained two judgments, one against Elliott & M’Curdy, and the other against M’Curdy alone, upon which writs of fieri facias were issued and levied upon the defendants’ personal property, describing it particularly. At the defendant’s request, the property was appraised in pursuance of the provisions of the Act of the 12th July 1842, and they gave bond to entitle them to a stay of proceedings for one year.

James Wightman against Mathias Brenzer. This action was founded upon the following due-bill:— “ Due Mathias Brenzer $204.91 for value received, May 28th, 1837. Hugh Curran.” Endorsed, “ Pay James Wightman or order. Mathias Brenzer.’ Wightman obtained this due-bill from Brenzer in October 1837, and wanting to raise money, he obtained it from Christian Caslow, and gave him the due-bill, as collateral security for it.

Slaymaker. The facts appeared to be that the money being in court for appropriation on the 5th December 1843, a commissioner was .appointed to make the distribution. On the 8th January 1844, his report was presented to the court, and confirmed nisi. On the 5th February 1844, exceptions were filed to the report.

The facts of this case are so fully stated by his honour who delivered the opinion of the court, as to render any other statement unnecessary. cited 1 Story’s Eq. 651, 634; Lloyd Sf Gould Rep. 252. cited 4 Johns. Chan. 20; 1 Story’s Eq. 633; 2 Watts 206, 232.

John Hise against Barney Geiger, with notice to Abraham Haldeman. John Hise, the father of the plaintiff, died intestate, seised of a mill and tract of land, and leaving a widow and six children.

This was a scire facias by James Mehaffey, surviving partner of Henry Share, John Pedan and others, who did business under the firm and name of Henry Share & Company, against Samuel M’Kinney.

<p>A testatrix bequeathed a legacy to her daughter under the following contingency :—“ And in case she lives unmarried to the age of twenty-five years, then the whole amount, principal and interest, to be paid to her; or the whole amount to be paid to her on the birth of issue. But in case she dies before the age of twenty-five, or without issue born, then to be divided equally between my sister H. and brothers W. and G.” The daughter married and died without issue after the age of twenty-one, and before she arrived at twenty-five: Held, That the limitation over to the sister and two brothers was n'ot too remote, but took effect: the word “or” being construed and, the contingency must happen within a life or lives in being, and twenty-one years afterwards; and it is therefore good by way of executory devise. Held also, that such legacy was so vested in the sister and brothers of the testatrix, as to be transmissible to their personal representatives in the event of their death before the daughter of the testatrix.</p>

This was an action of ejectment by George Dietrick and wife and John Armstrong and wife against Dorothea Bender and others, in which the plaintiffs claimed to recover the two undivided seventh parts of a tract of land. The parties stated the following facts, and agreed to consider them as a special verdict:— George Dietrick and Samuel Armstrong were duly married to Susanna and Rosanna, two of the daughters of David Bender, deceased, by his first wife.

This was an action of ejectment by Wm Stewart and others, heirs-at-law of Wm R. Stewart, against David Kenower, for a farm containing 100 acres, in which the parties agreed to the following facts: Alexander Stewart deceased was seised in his life-time of the tract of land with the appurtenances for which this ejectment is brought.

<p>APPEAL from the decree of the Common Pleas of Perry county, appropriating the proceeds of the sale of the real estate of Andrew Welch.</p> <p>On the 4th August 1841, Roset & Bicking obtained a judgment against Andrew Welch for $206.69. On the 12th February 1842, the same was assigned on the record to James Welch, who paid the money to the plaintiff. On the 21st November 1842, James Welch assigned the judgment for a valuable consideration to B. F. Gardner, who now claimed the fund in court.</p> <p>On the 3d November 1841, E. A. Hoskins obtained a judgment against Andrew Welch for $419.62. On the 20th November 1841, James Welch entered into a recognizance of bail with the defendant according to the Act of Assembly for a stay of, execution to the 1st May 1842, and to August term 1842 a scire facias was issued upon this recognizance against James Welch, which was pending.</p> <p>The court below was of opinion that on the 1st May 1842 James Welch became absolutely liable to Hoskins for the amount of his judgment, by the terms of his recognizance; and being thus liable, he could not take the money out of court on his own judgment, and that his assignee was in no better situation, and therefore decreed that the money should be paid to E. A. Hoskins, on his judgment: from which decree B. F. Gardner appealed.</p>

<p>The neglect of the sheriff to levy upon the personal property of a defendant in an execution, and suffering the same to be carried away and disposed of by the defendant himself, will not prejudice the claim of the plaintiff founded upon his judgment as a lien upon the defendant’s real estate.</p> <p>In the appropriation of the proceeds of sale of land by the sheriff, the assignee of a mortgage which has priority of lien will be preferred to a subsequent judgment creditor who holds the guaranty of the mortgagee for the security of his judgment, although it be prior in date to that of the assignment.</p>

<p>APPEAL from the decree of the Court of Common Pleas of York county, in the matter of the appropriation of the proceeds of the sale of the real estate of William C. Cornwell. The facts of this case are all fully stated in the opinion of the court. The cause was argued by</p>

<p>In an appeal from the judgment of a justice of the peace, the liability for costs is determined by the verdict, without regard to what was the judgment of the justice.</p> <p>In an action to recover the price of work and labour done, in the absence of proof of a specific contract between the parties as to price, it is competent for the defendant to prove what others received for the same kind of service.</p>

<p>ERROR to the Common Pleas of Berks county.</p> <p>Peter Smith, for the use of Jacob Johnson, against The Philadelphia and Reading Rail-road Co. This was an action on the case in assumpsit, in which the plaintiff declared as follows:</p> <p>“ The Philadelphia and Reading Rail-road Co. were attached to answer unto Peter Smith, to the use of Jacob Johnson, of a plea of trespass upon the case, &c., and whereupon the said Peter Smith to the use of Jacob Johnson, by Elijah Dechert his attorney, complains that whereas John M’llvain and Joseph Smith, doing business under the firm of M’llvain & Smith, had a contract on the Philadelphia and Reading Rail-road for the construction of a part of said road, and they became indebted to a certain Peter Smith in the sum of $4000 for produce, which he furnished to and for them from time to time while they were prosecuting their work for the said Company, to wit, on or about the 10th day of June, A. D. 1840, at the county of Berks aforesaid, and in consequence of the said work done and performed by the said M’llvain &. Smith for the said Philadelphia and Reading Rail-road Co., they became justly indebted to the said MTlvain & Smith in the sum of $4000, to wit, on the same day and year aforesaid, at the county of B«rks aforesaid; and the said Peter Smith wished to secure the payment of the said $4000 due to him as aforesaid from the said MTlvain & Smith, and in order to do so he called upon the said Philadelphia and Reading Rail-road Co. and represented to them his claims against the said MTlvain & Smith; and the said Philadelphia and Reading Rail-road Co. then and there, to wit, on the 22d day of July, A. D. 1840, at the county of Berks aforesaid, admitted that the said MTlvain & Smith were entitled in their hands, for work, labour and services performed as aforesaid, to the sum of about $3000 lawful money, and the said Philadelphia and Reading Rail-road Co. then and there agreed with the said Peter Smith that if he called upon the said John MTlvain and Joseph Smith, doing business under the firm of MTlvain &, Smith, and it was agreed between them and the said Peter Smith that the said Peter Smith should receive the said sum of $3000, or whatever the balance might be on a full settlement, in the hands of the said Philadelphia and Reading Rail-road Co., then they, the said Philadelphia and Reading Rail-road Co., in consideration that they were indebted to the said MTlvain & Smith as aforesaid, would pay to the said Peter Smith the said balance which might be found due in their hands to the said MTlvain & Smith as aforesaid, amounting to $3000 and upwards, to wit, at the county of Berks aforesaid. And the said Peter Smith to the use of Jacob Johnson avers that he did call upon the said MTlvain & Smith, to wit, on the 22d day of July in the year last aforesaid, at the county aforesaid, and they then and there agreed that in consideration that the said Peter had delivered to them large quantities of powder before that time, to the amount of about $4000, while they were prosecuting their work for the said Company as aforesaid, he the said Peter Smith should be and was authorized by them to call upon and demand and receive all the money which was still due and owing and coming to them, the said MTlvain & Smith, from the said Philadelphia and Reading Rajl-road Co. as aforesaid; of all which said several premises, the said Philadelphia and Reading Rail-road Co., to wit, on the day and year last aforesaid, at the county of Berks aforesaid, had notice. By means whereof the said Philadelphia and Reading Rail-road Co. then and there became liable to pay to the said Peter Smith, to the use of Jacob Johnson, the sum of $3000 and upwards, to wit, the balance in their hands which before that time was due and payable to the said MTlvain <fc Smith, when they the said defendants should be thereunto afterwards requested; and being so liable, they the said Philadelphia and Reading Railroad Co. in consideration thereof, afterwards, to wit, on the same day and year last aforesaid, at the county aforesaid, undertook and then and there faithfully promised the said Peter Smith, to the use of Jacob Johnson, to pay him the said sum of $3000 and upwards, to wit, the said balance due to the said MTlvain & Smith on a full settlement with them, when they the said Philadelphia and Reading Rail-road Co. should be thereunto afterwards requested. Nevertheless, &c.”</p> <p>To which the defendant pleaded non assumpsit.</p> <p>The plaintiff offered Matthias Mengel as a witness to prove the promise of the defendants, as 1 aid-in the declaration, made by Wirt Robinson, Esq., their engineer and agent, to which the defendants objected until the authority of Wirt Robinson, Esq. was first proved; but the court overruled the objection and sealed a bill of exception.</p> <p>Matthias Mengel sworn.-—In 1840] on July 22d, I think that was the day, Peter Smith called at my office, and stated that MTlvain &-Smith were to come up on that day. I went to the engineer’s office with him; I asked a man if Mr Robinson was in the office. He said, I am Mr Robinson. I stated to him that Mr Smith had alleged to me that MTlvain & Smith were to come up that day.</p> <p>It was one of the firm of'M’Ilvaintand Smith, and Mr Smith was afraid 'he would lose' his money, as those men intended to cheat him out of his money, as they did not come up. I told him this was for powder furnished for Flat Rock tunnel. I asked in words to the effect if it could not be fixed so that Smith could get that money. Mr Robinson expressed-s'orrow that Smith had not got his money. He stated they had paid large amounts to MTlvain & Smith. Peter Smith said those men had told him they had something like $7000 coming from the Company. Mr Robinson said .there wasn’t so much money, and also said the Company were not in the habit of accepting orders, for if they did all the contractors would draw. He then stated if Mr Smith would go to them, and get a statement and request from them, he would retáin the money, and after the next estimate day he would pay him the money. He- stated the Company owed these men about $3000, and said it might amount to more. There was a good bit of conversation. We remained some time. I went to my office and drew what I supposed to be a statement and request. (This is the paper I drew.) Peter Smith had a copy of his account against MTlvain & Smith. I am 'not acquainted with the handwriting of M’llvain & Smith. This paper was taken away on the 22d of July. I received it again by mail, between the 17th and 20th of August. When I handed it to Peter Smith on the 22d of July, the signature was not on, it. When I received it back, the signature was on it. . I saw Mr Robinson, I think, on the 22d of August, in the engineer’s office. That was the estimate day. I presented that paper to him. He said he did not wish to accept the statement and request.' I thep stated the understanding before. I told him that was The understanding between us, between Mr Robinson and Peter Smith, when we saw him. He then took it, and had it something like two weeks. I called several times afterwards, before I saw him again. At one time he wanted me to lay an attachment on the money in the Company’s hands. I told him I could not lay an attachment on the money, as M’llvain & Smith were in the State. This was near two weeks after he had the paper. He said they would have no objection to paying the money to Peter Smith if they were safe in so doing. The day I took back the statement and request to Mr Robinson, he showed me a letter from M’llvain & Smith, telling him not to pay the money over. When I took back the statement and request, I told Mr Robinson not to pay the money to M’llvain & Smith; Peter Smith would look to them; suit would be brought. He said they would not pay the money over.</p> <p>At that time I did not know who was the agent of the Company for making contracts.</p> <p>Cross-examined.—I am not certain that Mr Robinson looked at the books when he told me there was about $3000 due to M’llvain & Smith.</p> <p>The plaintiff, farther to maintain the issue on his part, called Peter Smith, to the admission of whom as a witness the defendants objected; whereupon the plaintiff again called Matthias Mengel, who testified as follows:</p> <p>“When Peter Smith assigned his claim to Jacob Johnson, a note was given for the consideration for $2500, payable in one year. The understanding was, Johnson was to take the risk. I saw Johnson give his note. Peter Smith took it away. I have heard Johnson say he was a son-in-law of Peter Smith’s. I heard Mr Johnson say he had paid some money on the note; this was since the arbitration. I heard him say so since he has been in town this time. In the first place Peter Smith put the claim into my hands to collect. He was with me when I told Mr Robinson.”</p> <p>The plaintiff then gave in evidence the following paper, executed before suit brought:</p> <p>“Whereas Peter Smith, of Frederick township, Montgomery county and State of Pennsylvania, has from time to time delivered powder to J. M’llvain and J. Smith, now or lately contractors on the Philadelphia and Reading Rail-road, to the amount of $3454. 22, as appears by the admission in writing of the said M’Uvain & Smith; and whereas the said Philadelphia and Reading Rail-road Co. by their agent, Wirt Robinson, agreed to pay the said sum of money to the said Peter Smith, and they are liable to pay said sum of money to the said Peter Smith; and whereas the said Peter Smith has agreed to sell the said claim to Jacob Johnson, of the said county of Montgomery, at the risk of the said Jacob Johnson, and without any recourse to the said Peter Smith: Therefore, know all men by these presents, that I, Peter Smith as aforesaid, for and in consideration of the sum of $2500 lawful money to me in hand paid by the said Jacob Johnson, Jun., at and before the ensealing hereof, the receipt whereof is hereby acknowledged, have assigned, transferred and set over, and by these presents do assign, transfer and set over unto the said Jacob Johnson, Jun., his executors, administrators and assigns, the said sum of $3454. 22, and all other sum or sums of money which is or are due to the said Peter Smith as aforesaid, and now- in the possession of the said Philadelphia and Reading Rail-road Co., or in whose hands or possession the same may be; and I do hereby assign, transfer and set over to the said Jacob Johnson, Jun. all my right, title, claim, interest and demand in and to the same; and I do hereby give and grant unto the said Jacob Johnson, Jun. my full power and authority to demand, sue for, recover and receive the same to his own use, and upon the receipt thereof to give a sufficient discharge for the same, or any part thereof. But it is fully understood and agreed between the said Peter Smith and the said Jacob Johnson, Jun., that the said Jacob Johnson, Jun. takes this assignment and transfer at his own risk, and that the said Peter Smith does not in any manner become responsible for the same or any part thereof, in case the said money is not recovered from the said M’llvain & Smith, or from''the said Philadelphia and Reading Rail-road Co.</p> <p>Witness my hand and seal, this 22d.day of September, A. D.</p> <p>~ Peter Smith, [e. s.]”</p> <p>The plaintiff then again offered Peter .Smith as a witness, to the admission of whom the defendants objected; but the court overruled the objection and admitted him to testify.</p> <p>Peter Smith was then sworn on his voir dire, and testified as follows:</p> <p>“ I live in Sumneytown; Jacob Johnson lives near Sumneytown. He is my son-in-law. We do not live together. I oversigned the note to one of my sons a good while ago, about a year. The note is not yet paid. The consideration of the assignment was to collect the money and pay my debts. I have received $100 on the note.”</p> <p>Whereupon the defendants renewed their objection to Peter Smith as a witness, but the court overruled the objection and permitted him to testify; to which decision the defendant excepted.</p> <p>The evidence of this witness was in substance the same as that given by Matthias Mengel. •</p> <p>The plaintiff then offered in evidence the paper referred to by the witness, which was' this;</p> <p>“ Mr Wirt Robinson :</p> <p>Sir—We owe Peter Smith the sum of $3454.22, it being for powder furnished us by the said Peter Smith. You will please accept the above, and oblige yours,</p> <p>M’Ievain & Smith.”</p> <p>To which the defendant objected; but the court overruled the objection and sealed a bill of exception.</p> <p>The plaintiff then called several witnesses, who proved that Wirt Robinson was the engineer and agent of the Company, and paid its debts and liabilities by drafts on the treasurer.</p> <p>The plaintiff then offered John R. MTIvain, one of the firm of MTIvain & Smith, as a witness, after having given in evidence the following releasé:</p> <p>“ Know all men by these presents, that I, Jacob Johnson, of Montgomery county, State of Pennsylvania, as well for and in consideration of the sum of $1 to me in hand paid by John R. MTIvain, of Philadelphia, State aforesaid, at the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, as for divers good causes and valuable consideration, as thereunto specially snowing, have remised, released, quit-claimed and for ever discharged, and by these presents, for me, my heirs, executors and administrators, do remise, release, quit-claim and for ever discharge the said John R. MTIvain, his heirs, executors and administrators, and every of them, of and from all manner of action and actions, cause and causes of action and actions, suits, debts, dues, sum and sums of money, account, reckonings, bonds, bills, specialties, covenants, contracts, agreements, promises, variances, damages, judgments, extents, executions, claims and demands whatever in law or equity, or otherwise howsoever, which against the said John R. MTIvain I ever had, now have, or which I or my heirs, executors or administrators hereafter can, shall or may have, for or upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents.</p> <p>In witness whereof, I have hereunto set my hand and seal, this 15th day of August, A. D. 1843.</p> <p>Jacob Johnson, Jun. [l. s.J”</p> <p>The defendant objected to him on the ground of interest; but the court overruled the objection and sealed a bill of exception.</p> <p>The defendants then gave in evidence the contract between MTIvain & Smith and the Company, and their final estimate up to the 20th July 1840; and then Wirt Robinson, Esq. was examined as witness, and testified that he never had made any promise for the Company, or accepted any order for the payment of money to the plaintiff, but on the contrary refused to accept the same; that there was no money due by the Company on the 22d July 1840, the time when the assumpsit was alleged to be made, as appeared by the final estimate.</p> <p>MTIvain was called again by the plaintiff, and testified that when he had finished his contract in July 1840, Wirt Robinson, Esq. exhibited to him a final estimate of the work. The plaintiff then offered to prove by the witness the contents of that estimate, to which the defendant objected; but' the court overruled the objection and sealed a bill of exception. The witness then testified that the final estimate, as shown to him by the chief engineer, Wirt Robinson, Esq., exhibited a balance due to M’llvain & Smith of upwards of $3300. .</p> <p>The defendants proved by Mr Robinson that there never was any such final estimate in existence.</p> <p>The defendants then requested the court to charge the jury as follows :</p> <p>1. That there is no evidence in the case of any authority in Wirt Robinson to accept drafts drawn upon the Company, or to make such a contract as that alleged in the plaintiff’s declaration.</p> <p>2. That if the alleged contract has been proved, the condition upon which the promise to pay was founded has not been complied with by the plaintiff.</p> <p>3. That the paper dated August 15,1840, is not an order upon the Company to pay the money due to M’llvain & Smith, or any part thereof, to Peter Smith.</p> <p>4. That obtaining and presenting that paper was not a compliance with the condition in the alleged contract, and therefore the plaintiff cannot recover.</p> <p>5. That as the paper is addressed to Wirt Robinson, it gave the defendants no authority to pay the debt due to M’llvain & Smith, if any, to Peter Smith; and, had the money been paid, it would have been no defence to a suit brought, by M’llvain & Smith for the recovery of the same debt.</p> <p>6. That if the jury believe there was nothing due from the defendants to M’llvain & Smith on the 22d of July 1840, the plaintiff cannot recover.</p> <p>7. That by the contract between the defendants and M’llvain & Smith, Wirt Robinson, the chief engineer, is the exclusive judge of the amount due, if any, to said firm, in the absence of any evidence of his having designated any other person.</p> <p>8. That the testimony of Wirt Robinson is conclusive that there was nothing due by the defendants to M’Jlvain & Smith, and therefore the plaintiff cannot recover.</p> <p>9. That Peter Smith cannot maintain this action in his own name. ' v</p> <p>10. The alleged consideration does not proceed from the plaintiff; therefore he cannot recover.</p> <p>The court thus answered these points:</p> <p>1. If the Company did owe the firm the amount of money claimed, or any part of it, Mr Robinson might for a valuable consideration bind the Company to pay it, or the amount due, to the assignee of the firm. Whether he did so bind the Company by contract, is a fact for you to decide from all the evidence.</p> <p>2. What the contract was, if any, and its conditions, and how far complied with, are facts for you to decide. It is necessary that the plaintiff should have complied with the conditions to be performed by him. If he has not, he cannot recover.</p> <p>3. The paper referred to is not, in words, an order on the Company ; it is on Wirt Robinson, their paying agent. A payment on it of any money due would have been a good payment by the Company against the drawers of the order.</p> <p>4. This paper having been obtained and presented, would be in substance a compliance with the contract as alleged, unless objected to when presented on account of that want of form that has been urged against it on the trial.</p> <p>5. We answer, that this point is not correct in point of law.</p> <p>6. This point is correct, and the court assents to it.</p> <p>7. This point is also correct.</p> <p>8. If the testimony of Mr Robinson is believed to be true, it would be conclusive evidence against the plaintiff, and would entitle the defendants to a verdict. But you are to take all the evidence; you are to determine on the credit that is due to the witnesses. You will reconcile conflicting testimony if you can; if you cannot reconcile it, you will decide which is to be believed. In this way you will determine all the facts.</p> <p>9. If there is nothing more proved than a mere promise to pay an admitted balance, the plaintiff cannot sustain this suit; to entitle him to recover, you must be satisfied from the evidence that there was a new and distinct contract made, founded on some valuable consideration performed, or to be performed.</p> <p>10. What the consideration was, and from whom it was to proceed, are facts for you to determine. If a valuable consideration did exist and was performed, it was not necessary that it should proceed from the plaintiff, unless the contract made it so.</p> <p>To this charge the defendants’ counsel excepted.</p>

<p>One who, as attorney-in-fact and -guardian of the heirs of an estate, manages and directs the same, and receives for his services a fixed compensation, has such an employment or business as is taxable for State purposes.</p>

The Lancaster Bank against John Boggs & Co. This was an action founded upon a protested draft. The facts of the case, and the questions which arose in the court below, are stated in the opinion of the court.

The Manufacturers’ and Mechanics’ Bank against The President, Directors & Co. of the Bank of Pennsylvania, the West Branch Bank at Williamsport, and the Bank of the United States. This was an issue directed by the court to try the right, to the proceeds of the sale of the real estate of John H. Cowden.

This was an action of ejectment by John L. Brower and William C. Gildersleeve against Isaac S. Osterhout, to recover a strip of land in the borough of Wilkesbarre. The controversy between the parties arose out of a difficulty in ascertaining the boundary line of the public square of the borough.

This was an action upon the case by Henry Perrine against The Mutual Insurance Company of Susquehanna county, to recover the amount of loss sustained by the plaintiff by reason of the burning of the stock in his tannery, and his saw-mill. The Act incorporating the defendants was passed the 21st March 1839, by which they were created a mutual insurance company.

James L. Voorhees against Samuel Dickinson. This was an action of debt on a bond conditioned for the payment of $15,000. The plaintiff had sold and conveyed to the defendant thirteen tracts of land, describing each separately, and as containing a certain number of acres each, and, in the whole, 3235 acres, and took the' bond upon which this suit was brought for part of the purchase money.

This was an action of debt by Gersham Williams against Calvely Freeman, who was the administrator of Baxter Bicknell deceased, charging him with a devastavit to the amount of a judgment which the plaintiff had previously obtained against the defendant as administrator, for a specialty debt owing by the intestate.

Moses Bertron against Washington Stansbury. This was an action of debt to recover the penalty of £50 imposed by the Act of 14th February 1729-30 upon justices of the peace for marrying minors without the consent of their parents.

This was an action of debt on a note by the West Branch Bank against John D. Beers and others. The cause was referred to arbitrators, who made an award for the plaintiffs for $1044.67; from which the defendants appealed, and entered into recognizance with security. The appeal was entered on the 13th September 1842.

<p>The vendor of chattels under whom both parties to an action of trover claim, is a competent witness for the plaintiff.</p>

Alexander Dolph against William Ferris. This was an action of trespass, which originated before a justice of the peace, and was brought into the Common Pleas by appeal. The proof was that the defendant’s bull jumped into the enclosure of the plaintiff and gored his horse so that he died.

This was an action of ejectment by the heirs of Alexander M’Donald deceased, against James Adams, for a tract of land.

This was an action of replevin by John Vandyke against Levi B. Chris.t, assignee of William Martin, to recover certain articles of persona] property. The property belonged to William Martin, and he made a bill of sale of it to John Vandyke, to indemnify him against the payment of a note for which he had gone his security. The actual possession of the property was not changed.

ERROR, to the Common Pleas of Tioga county. West Branch Bank against Hiram Beebe and C. H. L. Ford, endorsers of William Willard. This was an action of debt founded upon a note drawn by William Willard for $2000, and made payable to the defendants at the West Branch Bank, by whom it was endorsed, and discounted by the said Bank.

John H. Cowden, executor of John Cowden deceased, against The Executors of Catherine Ross deceased. Special verdict. The executors of Ross obtained a judgment against John H, Cowden for $500, upon which they issued a fieri./acias and attachment, by virtue of which they attached the money due upon a judgment of John H. Cowden against Henry Farnwalt.

Charles Pleasants against John H. Cowden. This was an attachment process in the nature of an execution, by which the sheriff was directed to attach certain debts which were due by several persons to John H. Cowden, executor of John Cowden deceased, and which -were assets of the estate.

This was a claim filed by Abraham Thomas against John H. James, contractor, and Chambers, Biddle & Co. reputed owners, and was as follows:— “ The prothonotary is hereby directed to enter for the plaintiff a mechanic’s lien, in the Common Pleas of said county, for the sum of $503.89, together with interest; against a two story frame dwelling-house, 16 ft. by 24 ft., on the ground on Billy’s Hill, above the large rolling and slitting-mill of Biddle, Chambers & Co.: also,…

This was an action of debt by the Commonwealth for the use of Bazaleet Sayre against John Frick, founded upon the official bond of the defendant as a notary public.

<p>In an action of ejectment in which the party claims under a treasurer’s deed made in pursuance of a sale of the land as unseated, he may give in evidence a patent for'the land in the name of the person as whose it was taxed and sold, without previously showing a regular chain of title to him from the warrantee The patent is such evidence of ownership and identity of the land as will justify the commissioners in taxing and selling it in the name of the patentee.</p> <p>It is not a good objection to a commissioners’ deed for unseated land sold for taxes, that it does not set out how the land was sold, whether at public or private sale; the presumption is, until the contrary be shown, that it was sold according to law. Nor is it a good objection that it was acknowledged before a Judge of the Court of Common Pleas.</p> <p>A draft of the unseated lands of a county, made under the authority of the commissioners, partakes of the nature of a public document, and may be given in evidence in an action of ejectment to identify the land taxed and sold.</p> <p>If a tract of land held upon a warrant and survey be covered by two or more warrants and surveys of a later date, and the land be assessed, taxed and sold by the treasurer at different times in the names of the later warrantees, such sale will confer a good title upon the purchaser for such portion of the land as is thus taxed and sold.</p>

<p>If a plaintiff in an action brought to recover the amount of a book-account be sworn to prove the character of his book which contains the account, it is competent for the defendant to give evidence of his character for truth, and to discredit his books by showing them to be unworthy of confidence.</p>

<p>The testimony of a witness taken upon a commission for the purpose of proving the execution of a paper, cannot be read in evidence unless the paper be particularly described, identified and annexed to the deposition.</p>

<p>It is no objection to the admission in evidence of a deed of conveyance, that it recites that another deed was made at the same time conveying the same land, and that the one offered was made for the purpose of being recorded in Pensylvania.</p> <p>In an action of ejectment, one who has been in the possession of the land after suit brought, or during the existence of the plaintiff’s title, is not a competent witness for the defendant.</p> <p>A plaintiff in ejectment may prove by parol evidence that the consideration paid for the land was much greater than that recited in the deed under which he claims to recover it.</p> <p>If the court be requested to charge the jury upon certain points arising out of an allegation of fraud, .and the record do not sustain the allegation of fact, the court will not inquire into the correctness or incorrectness of the instruction of the court to the jury.</p>

Adam Dietrich and wife ¿gainst Samuel Webb, Thomas Webb and Joshua Webb.

This was an action of ejectment for a tract of land, by John Baskin and John Snyder against Michael Seechrist. . The plaintiffs, after showing title in Joseph Vangundy, gave in evidence a mortgage from him to the executors of Hannah Lethgo deceased; a scire facias and judgment on the mortgage, and a levari facias and sale to Arabella Young, who was executrix of Hannah Lethgo deceased, by Martin Withington, Esq., then high sheriff, in August 1791.

John B. Wood against John Gruver with notice to E. M. Reynolds. The parties agreed to the following special verdict:— “ On the 18th day of February 1839, John M. Gruver gave a judgment-note to John B. Wood for the sum of $57.65, with interest from date. This note was entered of record in the Prothonotary’s Office, on the 12th day of March 1839.

William Donaldson and Anna Maria, his wife, against the West Branch Bank and the Bank of Pennsylvania. Mary Bradford against the same; Sarah Jane Bradford against the same.; ,and David Barnite and wife against the same. These were several issues directed by the court to try the right to the proceeds of the sale of the real estate of John H. Cowden.

<p>MOTION for a new trial in the Oyer and Terminer of Camina county, in the case of the Commonwealth against Bernard and Patrick Flanagan, who were indicted and convicted of murder in the first degree, before Judge White.</p> <p>This motion was argued before Justice Rogers, by</p>

Ethan Baldwin against David Cash. The plaintiff being an attorney-at-law, in bringing an action of replevin “for Abigail Swartout against' Frederick Fisher, was charged and paid to1 the defendant; who was the prothonotary, fl.25 for the writ; for which he brought this suit to recover the penalty of- $50 imposed for taking .illegal fees. Two questions were raised i first, can the plaintiff maintain the suit in his own name, or must'it be in the name of his ¡client ?

<p>The Act of the 29th March 1827, which requires the prothonotary to keep a docket in which all judgments shall be entered, does not impose any penalty upon the officer for receiving the fee provided by the Act to be paid, before the service is performed.</p>

Peter Baldy against Dr David Petriken. This was an action of assumpsit to recover a debt due by Francis Tully to the plaintiff, upon the promise of the defendant to pay it in consideration of forbearance.

The West Branch Bank against John HT Cowden. Upon a judgment in this case, the plaintiff issued an attachment in the nature of an execution, and which commanded the sheriff to attach one hundred and fifty shares of the stock of the Bank of Northumberland, in Northumberland county, and to summon James Armstrong, Esq., to whom the said stock was transferred, as garnishee.

<p>If a plaintiff bring several suits before a justice of the peace, founded upon Several causes of action, which in the aggregate exceed in amount $100, and for which one suit might have been brought in the Court of Common Pleas, he will not be permitted to recover more than the costs of one suit, although he himself may be liable to the officers for all the costs which accrued.</p>

Ira H. Stephens, sheriff of Bradford county, against The County of Bradford. This suit was brought to recover the expenses of removing George Peters, who was convicted of forgery, to the Eastern Penitentiary at Philadelphia; and the only question was whether, under the Acts of Assembly, the county or the State was liable to pay the same.

<p>ERROR to the Common Pleas of Susquehanna county.</p> <p>The executors of Henry Drinker deceased, against John Green. This was an action of ejectment for 100 acres of land, on the trial of which the court below (Jessup, President) thus stated the facts and charged the jury:</p> <p>“ The parties both derive their title under Ephraim Kirby deceased. The title in him is therefore taken to be valid. The plaintiffs derive their title under a deed dated 29th November 1806, made by Thomas Dyer and Joseph L. Smith, administrators of Ephraim Kirby deceased, under proceedings and an order of the Orphans’ Court of the county of Luzerne. These proceedings, whether regular or irregular, warranted the making of this conveyance, and cannot be reversed or inquired into in this court. That court had jurisdiction, and having made an order of sale and confirmed it when made, we are concluded thereby. This deed vested tht title in Henry Drinker and Jeremiah Mason. On the 9th August 1808, Jeremiah Mason and Henry Drinker made partition, by which this lot No. 138 was parted to Henry Drinker. The plaintiffs are shown to be his legal representatives.</p> <p>The plaintiffs have given in evidence assessments of this lot as follows:</p> <p>To Ephraim Kirby as unseated in 1806; to the estate of Henry Drinker as unseated 1809-11-12, in the county of Luzerne.</p> <p>Susquehanna county was erected in 1812. The lot was assessed as unseated to Henry Drinker’s estate, for the years 1813-14-15 and 16. For 1817-18-19 it was not taxed. In the years 1820-1-3-4L5-6-7-8 and 9, it was again assessed to them as tmseated. In 1830 and 1831 not assessed. For 1832-3-4—5 it was again assessed to Drinker’s estate. In 1834 it was sold by the treasurer for non-payment of the taxes. In 1836 it was redeemed by James C. Biddle, the agent for the Drinker estate, who charged the amount of redemption to the said estate. Having thus derived their title from Kirby, the plaintiffs should recover unless their right be defeated by a better title of the defendants.</p> <p>The defence is raised under a title from Ephraim Kirby by deed to John Foot, dated 14th July 1803. This deed was acknowledged before a justice of the peace in Connecticut, and entered of record in the recorder’s office, in Luzerne county, on the 5th November 1803. In 1802 John Foot cleared about five acres, and sowed it with grain the same year. He again sowed it with grain in 1803. He harvested the grain in 1804. He did not live on the lot nor build on it, and, as the evidence clearly shows, never was on the lot to do any work after taking off the crop in 1804. The improvement was abandoned from that time, and soon grew up to briars and bushes, and the fences shortly went down. William Ward testified that in 1807, or about that time, he had a conversation with Foot, who said he had no deed, or did not know that he had a deed, or had not paid for the land. Mr Ward finding the deed in the recorder’s office, and being interested in the other lot, arranged the claim with the administrators of Kirby in Connecticut, paid them for their claim on the land, and on the 23d July 1812, took a deed from Foot for both lots. This deed was recorded in Luzerne county, August 3d 1812.</p> <p>On the 20th September 1813, William Ward conveyed to George Ewalt, and the deed was recorded on 9th October 1813.</p> <p>Ewalt’s heirs have been by consent admitted to defend in this case.</p> <p>John Green, the defendant, entered upon this lot in 1826, cleared about five acres, raised grain thereon', and has continued in possession up to the present time. He has, in the course of the time he has occupied the lot, cleared about sixteen acres.</p> <p>By the evidence of Mr Vance and the assessment rates, it appears that this lot, with five acres of it as improved land, was, in 1829, assessed to John Green for county taxes, and has so continued to be assessed to the present time. Mr Blowers states that in 1827 he assessed the road tax to John Green and he paid it. No connection between Green and Ewalt’s heirs is shown. Green is not their tenant or vendee.</p> <p>To the validity of the title thus deduced by the defendants, the plaintiffs object for the following reasons:</p> <p>1. That they are not to be affected by the deed of Kirby to Foot, because it was not acknowledged or recorded according to law.</p> <p>This question appears to be settled by a variety of decisions, which affirmed the position that if a deed be irregularly recorded it is not notice to a subsequent bona fide purchaser. This deed was not so acknowledged as to authorize its being recorded, and was not therefore notice to Drinker. The Act of 16th April 1840 is not to be construed as having a retrospective effect so as to make the irregular recording of a deed valid as against a person not a party to the deed, if indeed it has any effect upon the record or gives to it any validity whatéver. That statute makes valid the deed as against the grantor, and entitles it to be recorded. But most clearly could not devest the title of other persons acquired before the passage of the Act under deeds duly recorded.</p> <p>2. That the possession of Foot in 1806 was not such a possession as was notice of the title by which he held the lands.</p> <p>The general principle is, that possession of land is notice of the title by which the party claims, and a purchaser is bound to inquire of him in possession, or he buys at his own risk. The possession in such case must be sufficient to indicate the persons who claim it. It must be distinct and unequivocal. It is therefore for the jury to ascertain from the evidence, whether there was such a possession in November 1806 as would put Drinker upon inquiry for the title. If the lands were then abandoned by Foot, returned by the assessor as unseated, the cleared land growing up to bushes and briars, the fences down, and the whole unoccupied, it would not be such occupancy and possession as in law would be constructive notice, for there would be no person exercising such acts of ownership over the land as would indicate him as the owner.</p> <p>3. It is further objected under the evidence of Mr Summers and Mr Ward, that the deed was never delivered by Kirby to Foot, and that Foot did not pay anything for the lands.</p> <p>Depositing the deed in the recorder’s office, is not conclusive of a delivery by Kirby. It goes, with the other facts in the case, to the jury. If the deed were not delivered, no title would vest in Foot by the conveyance itself.</p> <p>4. It is further contended on the part of the plaintiff, that if Foot abandoned the land after 1804, it would again become liable to assessment in 1806 as unseated. This position is correct, and the evidence clearly proves that nothing was raised or kept on the place after 1806.</p> <p>5. It is further claimed by the plaintiff, that if the deed to Foot were valid, and vested in him the better title, still that having paid the taxes assessed on it for more than twenty-one years, they can now hold it under their title by the Statute of Limitations. To this the court answer, that this land was not liable to taxation as unseated after 1826. It was first assessed to the plaintiff in 1809, and Green paid the taxes on it in 1829. Without deciding how far a claimant of lands out of actual possession can acquire title by the payment of taxes for twenty-one years, the court instruct the jury, that the plaintiff, not having paid taxes for that length of time prior to the defendant’s actual possession, cannot recover on that ground. No tax could properly be assessed as unseated upon the lot after 1826, for Green was then occupying and improving it. Foot, Ward and Ewalt, do not appear ever to have paid any attention to the lands unless since Green has been in possession, but permitted Drinker to pay the taxes from 1809, so long as they were assessed to him. In a contest between two holding title to the same lands, not in actual possession of either, one of whom pays taxes on the lands for twenty-one years, the other paying no taxes and asserting no claim to the land during that time, the jury will presume an abandonment of the land by him who thus neglects, in favour of him who pays the public duties. Such is the principle of the case of Royer v. Benlow, (10 Serg. Sf Rdwle 306), and other cases decided by the Supreme Court on this subject. But that does not go far enough for the facts of this case; if the plaintiff recover it must be upon the other grounds of defect in the defendant’s bill.</p> <p>referred to the Act of 3d April 1826; 16th April 1840; 16 Serg. <5f Rawle 35, 169.</p> <p>whom the court declined to hear.</p>

Ogilsby & Hinckley against James Lee. The plaintiff obtained a judgment in debt against the defendant on the 27th December 1839; on the 16th August 1833, he issued an attachment in the nature of an execution against the defendant, which the court set aside because more than a year and a day had elapsed from the rendition of the judgment. referred to the 35th section of the Act of 1836, and contended that the process in this case was only in the nature of an execution, and…

THIS was a case stated in an action of debt brought in the District Court of Allegheny county, on a judgment in foreign attachment recovered in the Commercial Court of New Orleans.

Trover for a ceroon of indigo. The case ,is fully stated in the opinion of the court. cited 17 Serg. Rawle 138. cited 7 Eng. Com. L. 355; 3 Bra. $ Bing. 75; 2 Whart. 308; 8 Johns. 452; 1 Sto. Eq. 369.

<p>ERROR to the District Court of Allegheny county.</p> <p>David Noble, for use of Lippincott & White, against Edwa.rd M’Ginnis. This was an action of debt upon two bonds conditioned for the payment of $1500. The plaintiff, on the 13th June 1840, conveyed to the defendant a tract of land and took the two bonds in suit, which were payable in two and three years after date, for the purchase money. At the time of the sale there were judgments encumbering the land to the amount of $750, upon which executions were subsequently issued and levied upon the land in possession of the vendee, and it was sold by the sheriff on the 16th July 1841 to the defendant for the sum of $750. This the defendant set up as defence to the payment of his bonds, contending that there was a total failure of consideration of the bonds, and that the plaintiff was not entitled to recover.</p> <p>Grier (President) instructed the jury that the failure of consideration was only to the amount of the purchase money paid by the defendant to the sheriff in discharge of the encumbrances, and that the plaintiff was entitled to recover the balance. This instruction was the subject of the error assigned.</p> <p>cited 5 Whart. 97-37.</p> <p>cited 1 Serg. Sf Raiole 442 ; 5 Serg. Sf Rawle 203; 16 Serg. &■ Rawle 261; 13 Serg. &• Rawle 165; 3 Johns., 472; 7 Johns. 376.</p>

David Akin and others against John Paden and others. Ejectment for 250 acres of land. The plaintiff’s title was founded upon a treasurer’s sale, made on the 13th June 1826, for the taxes of the years 1821 and 1822.

<p>In an action .of ejectment, a connected draft of adjoining lands, certified frora the surveyor-general’s office, is competent evidence to show location and boundary. So also are the field-notes of the deputy-surveyor.</p> <p>The declarations of one under whom the party to an action of ejectment claims, made while he owned the land, that his title was not good, cannot be given in evidence to affect the title of his vendee.</p> <p>In an action of ejectment against one- who claims title under an intestate upon, a judgment against his administrators, and a sheriff’s sale thereupon, it is not competent for the plaintiff to give evidence to prove that the administrators had assets in their hands sufficient to pay the judgment and avoid the sale.</p> <p>A judgment obtained against the administrators of an intestate within seven years after his death, and revived by a note made upon the record of the original judgment, of the agreement of the parties for that purpose, made within every five years, is such a due prosecution of the claim as will preserve the lien of the debt upon the lands of the intestate, according to the provisions of the Act of 1797.</p> <p>The Acts of Assembly of 1798, 1827 and 1828, limiting and regulating the liens of judgments, are not applicable to such as are originally obtained against the representatives of deceased debtors.</p> <p>Previously to the Act of 24th February 1834, a suit and judgment against the administrators of a deceased debtor, whether adverse or by confession, bound the lands of the intestate without notice to the heirs, and a sheriff’s sale upon such judgment conferred a good title upon the purchaser.</p>

THE plaintiff brought this action of trover against the defendant, who is a warehouse-man in Clarion county, on the Allegheny river, for the supposed conversion of certain goods retained for the price of warehouse room, being part of a larger lot which was stored in his warehouse by Hamilton & Humes, of whom the plaintiff is the general assignee* The greater part had been delivered to Hamilton & Humes, and the residue having been demanded without tender of any charges,…

Perry M’Comman against James Clark. This was a scire facias upon a recognizance alleged to have been entered into by James Clark, the defendant, in a certain action of debt by Perry M’Com-man against James Dunn, to entitle the defendant to a stay of execution. The defendant pleaded nul tiel record, nil debet and payment. The plaintiff gave in evidence the recognizance as taken by the justice.